Tuesday, March 21, 2006

No-fault Divorce Means a Bigger State

Jennifer Roback Morse, a researcher at the Hoover Institution, argues in a fine essay in The Meaning of Marriage that a libertarian society would not, in fact, want easy divorce. Marriage creates obligations which, if badly managed, create costs for society. Kids create obligations which, if badly managed, create enormous costs for society. Married people just handle both kinds of obligations, absorbing most of those costs and not externalizing them on society.

If free individuals never interacted with one another, then a libertarian state might be able to stay out of marriage and childrearing. Of course, no interaction would mean no kids, and soon enough no society. However, people do naturally couple and make kids. Marriage means they handle it, and the state doesn't have to. Not-marriage, or easy divorce, means that the state has to be involved more. Every step of the way in taking care of kids and disentangling their finances requires state intervention.

In principle, the state could leave women who had kids without husbands to sink or swim on their own. In practice, though, Morse rightly says this is politically infeasible. So the current unilateral divorce system leaves society with all the obligations of taking care of the wreckage, but none of the protections that would encourage the couple to deal with their obligations themselves.

"No fault" was supposed to make marriage better, by taking the conflict out of divorce. It was supposed to apply to cases where the divorce was not contested, where both husband and wife wanted out. Now, though, it has degenerated into legalized abandonment. And you and I get to pick up the pieces and pay for the mess.


ken mcintyre said...

I suppose that one could conceive of a 'hard-contract' libertarianism which would support very stringent restrictions on divorce, if marriage were understood as a kind of limited partnership for producing families. In this scenario which I believe has been proposed in some states, there would be various levels/kinds of marriage contract. My guess is that the potential wife would almost always desire 'the unlimited warranty' version of marriage.

Of course, if your libertarians were also Shakers, these problems would never arise.

eustochius said...


What do you think of a compromise proposal? Rather than instituting iron-clad marriages, would it not be better to just charge/fine those who seek a divorce in accordance with their means and in accordance with expected societal costs? And perhaps only institute a fine where children are involved?

It seems unduly puritanical, and quite scary in fact, to impose difficult-to-exit marriages upon everyone (yes, I know that one need not get married in the first place).

Alternatively, maybe one could have difficult-to-exit-marriages available but give greater benefits to those who opt for a more "secure" marriage.

I don't think it's right for people to expect the state to pay for the mess, but I don't think the state should be used to enforce virtue. Incentives perhaps, but I believe virtue imposed is no virtue at all.

Gruntled said...

I can't think of why libertarians would be committed there being any children, or any society after this generation.

Maybe if you had to put up a bond to have kids, to cover the state's expenses if you default on raising your own.

SPorcupine said...

Maybe government power is just not a very important part of how to make progress on an issue like this.

Maybe it matters more for lots of people to have lots of conversations about how building their own strong marriages is a way individuals can create richer lives, happier children, and a stronger society.

Without that socially-nurtured understanding, I think tougher divorce laws would just result in people leaving spouses and children without any legal resolution about property or support--and then the "big state" would have to chase them about that.

The big changes on this sort of thing will happen in small institutions and small relationships.

Gruntled said...

We have divorce on demand for couples who want it. That is not likely to change. What crosses the line, I think, is turning easy uncontested divorce into easy unilateral divorce. As Morse notes, if the state took that attitude toward business contracts, the economy would collapse. I don't think it amounts to an onerous enforcement of virtue to return no-fault to its original intent.

eustochius said...

If you put it that way, gruntled, I can dig it. I wasn't exactly sure what you were advocating. But I definitely agree with sporcupine that any major shift in laws need be preceded by a societal one.

John_Ell said...

Beau, et. al. -

My first exposure to the concept of easy divorce came during a movie my Mom wanted to see (and took me to, promising ice cream afterward if I'd be good). It was the early post WW-II years, and I could not have been much over four years old. Most of the plot escaped my grasp, but there were portions that addressed the subject of divorce as it had evolved in the Soviet Union.

As a child who looked to his parents for education, guidance, and support, this *did* catch my attention.

It merits mentioning that the Cold War had not yet flared up, we were still on relatively good terms with these former allies, but some irritability with their family values was beginning to be expressed in Hollywood movies (McCarthyism was to come later).

I do remember that the leading male character was played by Clark Gable. He proposes marriage to his leading lady (near the end of the movie, when classic concepts of denouement require that loose ends be brought together). She brushes him off, saying that in her country (USSR) marriage isn't really necessary, and that if relationships begin falling apart, there is only a simple form to fill out. Seldom at a loss for words ("Frankly, my dear ..."), Gable's character retorts "You mean you just send back a postcard checked 'NOT having a good time'?"

The notion, of course, was that this philosophy was completely absurd.

It made a lasting impression upon me, and provides an interesting contrast to the ease and casualness with which the subject is debated today.