112 DIVorCe wItH DeCenCY
all provisions of the divorce agreement in order to obtain a no-
fault divorce.
The fact that almost all states have switched over to the pri-
marily no-fault format represents a big change from the old days
of fault-based divorce. As many people will recall, the concept
of proving fault (the transgressions of one side or the other dur-
ing the marriage) used to be one of the key elements of a divorce
case. Under the old fault-based system, if one side was at fault,
then a lopsided property settlement was oftentimes used to pun-
ish the person who was deemed to be the bad guy or bad gal in
the marriage. Thus, if a wife ran off with her tennis instructor, she
got less alimony than would a wife whose husband left her for
his secretary. I often refer to that kind of fault-finding approach
as the People magazine style of divorce. Frankly, it is still hard for
many people to accept the fact that those days are over.
The modern reality, however, is that nowadays the court
doesn’t even want to hear evidence of who did what to whom.
Judges today have so many of these crazy divorce cases to han-
dle (there are about five thousand divorce cases a year being
processed in Hawai‘i alone) that they have neither the time nor
the inclination to try to play Monday morning quarterback and
determine who was right or wrong in the marriage. Instead, they
just try to move these cases through the mill as briskly as they
can and concentrate primarily on the property settlement issues.
Most judges flatly refuse to even admit evidence that relates
to fault.
Can’t we find some fault somewhere? The one big exception is in
custody cases. If custody is the key issue, and if mom did some-
thing really stupid (for example, she not only ran off with the
tennis instructor, but also partook of sex and/or drugs with him
while her three-year-old daughter was asleep in the adjoining
room), then that kind of behavior relates to the issue of overall
lack of good judgment in parenting. That sort of off-the-charts
“Bozo no-no” type of behavior can (and should!) come back to
haunt/hurt her custody case on an almost fault-like kind of basis.
You had better believe the judge will want to hear all the evidence
in these sorts of cases.