At mid-point in the twentieth century, the American divorce system was universally acknowledged a failure. The conception that divorce was a process through which "innocent" spouses proved marital "fault" in an adversary proceeding against their erring partners, whereupon the state "punished" the "guilty" spouses by issuing a divorce decree, existed only in the insular mind of appellate opinions. Prior to the California divorce revolution of 1969, many American jurisdictions had passed incompatibility statutes and living apart laws in an effort to slow the mounting divorce rate by substituting neutral factors for the traditional requirement of proving fault. Incompatibility statutes were designed to afford a couple relief from continued wedlock in the face of serious and unrelenting disharmony. Living apart laws provided theoretical recognition that dead marriages deserved a formal burial. According to this latter rationale, after separation periods of five, seven or as long as ten years, marriages were presumed in many states to have expired by the passage of time and the obstinacy of the couple.
But both the incompatibility devices and the living apart provisions failed to attract many divorce customers, Americans largely ignored these early no-fault experiments, preferring to continue divorcing under the familiar-and quite corrupted-fault system. Unhappy wives and husbands found the lengthy separation periods required under the living apart statutes much too inconvenient compared to the rapidity of the traditional fault divorce. On their face, the incompatibility laws appeared to satisfy the popular call for an amicable end to deeply dissatisfying marriages. But many appellate courts had difficulty disentangling incompatibility from the web of fault jurisprudence. This reluctance to affirm the plain meaning of the statutory language confirmed Professor Walter Wadlington's observation that, in most jurisdictions, "the ingrained concept of fault [was] difficult for the judiciary to overcome."
25 University of Toledo Law Review 535