THE DYING DOCTRINE OF RECRIMINATION IN THE UNITED STATES OF AMERICA

Abstract

In order to argue that the doctrine of recrimination is logically absurd, sociologically abhorrent and historically doubtful, the authors review the development of that doctrine and its inception into the ecclesiastical law of England. They then illustrate how the American doctrine of recrimination is tempered by the doctrine of comparative rectitude, which preserves the view of marriage as a beautiful ideal rather than an arena for punishment, as recrimination suggests. They discuss the relationship between judicial discretion and fault, the foundation for the doctrine of recrimination, arguing that acknowledging the trial judge’s discretion in his ability to grant a divorce even to the blameworthy party is the first step in overturning the doctrine of recrimination. Finally, they demonstrate why fault is unimportant to determinations of alimony, custody or property settlements and the role it plays in these areas.