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Idaho Law Review

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This article focuses on the legal and cultural history of non-fault divorce alternatives, and examines both formal legal materials and popular periodicals in an effort to comprehend the evolution of the modern American divorce culture. Beginning in the 1920s, the concept of incompatibility resounded through popular psychology as well as jurisprudence. The expansion of the divorce ground of cruelty to include mental anguish was not an attempt to broaden divorce grounds, but rather an attempt to define the range of the existing cruelty principle in terms of the new psychological understanding. Divorces had infiltrated the burgeoning consumer culture, and the voices of the trial judges sliced through the thick web of formal divorce grounds and defenses. In the following decade, legislatures responded to the new divorce freedom with a veritable boom in state statutes proffering non-fault divorce alternatives. While a surface reading of these "living apart" and 'incompatibility" laws suggests a legislative design to lower the hurdles for divorcing couples, a look beneath reveals an opposite agenda. These early non-fault reforms were in fact efforts to slow down the rate of divorce, reflecting legislative awareness that the sandbags of fault had seriously eroded. The popular reaction to these non-fault progenitors was not, however, what the legislatures had hoped. The number of intended consumers who purchased their marital freedom in the new statutory fashion remained negligible. Nor did the legislative reforms find universal favor among appellate courts, which often had difficulty interpreting these novel texts except within the fault-oriented matrix of traditional divorce procedures. This tortuous history of fault and no-fault divorce may well prove instructive in this new age in which no-fault may be ceding its grip to the voices clamoring for a revival of fault norms to again slow down divorce.



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