Thursday, July 19, 2007

No-Fault Divorce Is Not the Problem – Unilateral Divorce Is

The "no-fault" revolution that swept the states in the 1970s increased the divorce rate about ten percent. Since the overall divorce rate is now a little under 50%, that is a sizable hunk of all divorces. A new study from the Institute for Marriage and Public Policy (iMAPP) by iMAPP president Maggie Gallagher and law professor Douglas Allen reviewed all the studies in this country and elsewhere to see what effect the no-fault revolution has had. They conclude that many factors contributed to the divorce boom, but the no-fault legal changes that made divorce easier were definitely significant.

No-fault was supposed to increase the divorce rate, at first. When states started passing divorce reform in the late sixties they figured that there was a backlog of unhappy marriages that would take advantage of the easier rules. Gallagher and Douglas estimate that most of the increase in the divorce rate due to no-fault came in the first ten years. Proponents of no-fault expected that there would be a divorce spike, followed by a return to the earlier divorce rate, or maybe even a lower one. Judges and lawyers were eager to end the charade that many divorces had become, in which both parties agreed to have one party pretend to be to blame, especially of adultery.

That is not quite the way it worked out, though. There was a divorce spike after divorce reform – but the spike did not come back down. By the early '80s we hit the highest divorce rate ever, and many respectable analysts thought half of all marriages would end in divorce. Things never got quite that bad, and there has been some improvement recently, especially for educated people. Still, as Gallagher and Douglas show, divorce reform makes people reluctant to get married, or lets them expect to take an easy exit when things get tough, as they always do.

New York is the only state that still requires that someone be at fault in order to grant a divorce. Yet about 2/3rds of New York divorces are uncontested, and in many of those cases the parties agree ahead of time that one of them will admit to fault in order to get on with the divorce. This is why a high-level panel of judges and lawyers is proposing to do away with New York's fault standard altogether.

So, if we went back to fault-based divorce, would that be better for marriage? Not really. The problem is not really that we now have no-fault divorce, but that we have unilateral divorce. What the no-fault revolution has really meant is that it takes two to marry, but only one to divorce. In practice this often means that the "monied party" – usually him – can walk away from the "unmonied" (or making-much-less) party and the kids.

New York probably will join the rest of the country in abolishing fault as the only standard for divorce. They could strengthen marriage, or at least make divorce less awful, if the state eliminated unilateral divorce at the same time.

41 comments:

Alan said...

Nice to see someone actually blaming divorce for the destruction of marriage, for once. ;)

Mark Smith said...

Isn't it always true that if one side is unhappy, a divorce is likely to result?

I'd assume (having never been through one) that very few divorces start because both parties decided at the same time that they were unhappy. I assume that it's more the case that one becomes unhappy and then the other does (or is made to be unhappy).

The only alternative that I can see is when one party walks out or suddenly presents the other with divorce papers, but that is clearly unilateral.

Gruntled said...

If one wants a divorce, but the other wants to work on saving the marriage, the first one can just get a divorce anyway. Imagine the chaos would ensue if the same logic were applied to business contracts. Marriage is not just an emotion -- if is a dense social relation, as much material as emotional.

José Solano said...

All divorces are problems. The problem of “no-fault divorce” is exacerbated by “unilateral divorce.” If both parties had to agree to the divorce it might reduce divorce by a few cases, but best is for the state to return to its earlier and long lasting position of not granting divorces except in the case of adultery.

The state will not be able to prevent all marital problems or societal ills. If the people seeking a divorce want to engage in a “charade” of pretending one-sided fault, adultery, it’s their choice. The wisdom of a law should not be determined by the number of liars in society. Not granting divorce, except for adultery, will be a great deterrent to divorce and family fragmentation. Separations can be granted. In this way people will learn to take marriage seriously, as seriously as society does. Schools need to provide an intensive and significant curriculum on the meaning and importance of marriage.

Of course, our society is so confused, self-centered and perverse that it is most unlikely to support such responsible and moral legislation. Presently society prefers to make marriage the flimsiest contract anyone can get into. That’s what worth society apportions to marriage.

Alan said...

"best is for the state to return to its earlier and long lasting position of not granting divorces except in the case of adultery."

Just out of curiosity (since I know nothing about divorce) how does divorce law in which both participants must agree deal with spousal abuse? I assume there are exceptions to the law, right?

Of course, even if the only exception is for adultery, that's hardly going to reduce the number of divorces. In fact, given the statistics I've seen on marital infidelity among heterosexuals, I'm surprised the divorce rate isn't higher!

Anonymous said...

Gruntled: Imagine the chaos would ensue if the same logic were applied to business contracts. Marriage is not just an emotion -- if is a dense social relation, as much material as emotional.

Roderick: But aren't you just giving more credence to the fact that marriages are more complicated than businesses because they entail more abstract factors like emotions and compatibility?

Gruntled said...

Yes, abuse is an exception. Under many versions of no fault, fault-based divorces are also possible (such as for abuse), but they are harder to prove than a claim of "irreconcilable differences."

Gruntled said...

Marriage is much more complicated than any business relation. To the law, though, marriage is a civil contract. It should not, under the divorce law, be treated as any less serious than a business contract.

José Solano said...

Since you quote me Alan, I’ll respond to your question on spousal abuse. Spousal abuse, depending on what is meant by “abuse,” is handled by the criminal justice system. If it’s physical abuse the abuser is properly charged, arrested and put on trial. If found guilty the abuser goes to jail. The abused party may and should separate from the abusing spouse. Separation should not be made complicated and may be permanent.

What this system does is that it forewarns anyone thinking about marriage that they had better take it seriously because society takes it seriously. You take your marriage vows with the intent of spending your life with your spouse. A longer engagement period and pre-marital counseling would be very helpful. After marrying marriage counseling would truly be marriage counseling rather than divorce counseling as divorce would not be an option.

I know that the strict anti-divorce laws of New York saved my parents marriage and the unity of our family because they argued intensely and often wished to get divorced. But neither one was an adulterer and they were not about to lie in court about such a matter. Over the years their arguments became subdued and my mother stopped throwing dishes after “accidentally” hitting my father with a cup. It became a household joke that they would retell many times with much laughter. They were inseparable through their long marriage with a profound love for each other. They knew the meaning of “for better or for worse.” They are buried together.

How could I possibly support a no-fault divorce system?

arturo fernandez said...

Jose, but than look at how you turned out. A bigot. No thanks.

arturo fernandez said...

And Jose, don't get mad when I call you a bigot. You call me a pervert. I'm not mad. One of us is wrong, that's all.

José Solano said...

The subject on this thread is divorce.

You continue to embarass your allies Arturo.

Chairm said...

Mark Smith, I really doubt that unilateral divorce generally creates greater happiness for either person.

That's part of the tragedy of the no-fault system. It has reduced expectations for marriage while inflating expectations for divorce.

Generally, if the conflict is not high, the best approach tends to be for both persons to recommit to marriage and to see through the rough spots together.

Sounds simple and it is; but we shouldn't mistake that for easy and simplistic. It does not mean putting in time as if it was a prison sentence.

Staying married reaffirms realistic expectations for marriage (as per marriage vows) and, generally, also increases the happiness of both persons, eventually. When children are also taken into account, this increase in happiness multiplies.

When society encourages marriage, and discourages divorce, the option of unilateral divorce is seen for what it actually is: a drastic step taken under dire circumstances.

In that context, feeling a little less happy, temporarily, doesn't seem like the best criteria for a one-sided decision to bust up a lifetime commitment.

But I think our marriage culture has been devolving into a divorce culture.

I don't think it is an exageration to say that more and more people see the prospect of divorce as a reason NOT to marry; and that rather than living under the assumption that staying married is the default position, it seems that people are encouraged to behave as if divorce is the default position and one needs to meet happiness quotas to justify remaining together.

And at least for that, the overly permissive one-sided divorce system is responsible.

It is this which creates the common perception, such as you said, that "if one side is unhappy, a divorce is likely to result."

If the conflict is not high, and the couple recommit, it is likely that greater happiness will result.

Every marriage is tested in some way. And it is the tried and tested that exemplify wedlock to those not yet married.

arturo fernandez said...

It is on topic. Spousal abuse barely falling short of physical harm cannot be good for kids. Look at you.

What allies?

arturo fernandez said...

That was for Jose. Chairm got in the way.

Edith OSB said...

Andrew Chelin speaks of the change from companionate marriage ("we're in this because we make a great couple") to individualized marriage ("I'm in this because it works for me right now") as one a factor in the high divorce rate; Gruntled's idea of unilateral divorce seems like the flip side of the same idea.

If that's the case, then the seed of the unilateral divorce is inherent at the moment the marriage is made. The laws may make it easier or harder, but the initial decision against seeing marriage as a permanent relationship predated the problems.

I'm not against legal reform; it's just that some sort of cultural change in the way we think about marriage seems a more fundamental need.

José Solano said...

“But I think our marriage culture has been devolving into a divorce culture.” Chairm.

This is exactly what has happened. I remember a couple who went for “marriage counseling” but were really looking to get out of their marriage. The counselor asked them, “Are you seeking marriage counseling or divorce counseling?” He told them they came to the wrong counselor because he didn’t do divorce counseling.

Too many couples go to "marriage" counselors to help ease them out of their marriages. These counselors work hard to have them feel comfortable about evading their responsibilities and fragmenting their families. They even counsel the kids to accept this fragmentation for everyone’s “good.” The kids have a right to rant and rail against this injustice, this travesty caused by adult selfishness and self-centeredness. This is truly a crime against the children in most cases and can be just as bad or worse than a parent abandoning them. It is a form of abandonment.

The pleasantries that are so often pretentiously expressed in the family fragmentation process belie that plastic, artificial lifestyle that is cultivated in this divorce culture and has come to define so much of superficial Americana.

R.K. said...

"Nice to see someone actually blaming divorce for the destruction of marriage".

But this is kind of like saying that cancer is to blame for the high cancer death rate. What's causing the cancer?

It's not divorce itself that's the problem, it's whatever is causing the divorce, or more precisely the high rate of it. And that's what we need to determine. The distinction is important.

José Solano said...

In a sense that is correct R.K. You are taking us to a deeper level of analysis. Divorce can be seen as a consequence or a symptom of a problem. I would say that it stems from an inability or unwillingness to love, an ignorance of what love is. Self-centeredness, selfishness, irresponsibility, immaturity and similar conditions drive people into an escapism mentality. Concupiscence that engenders adultery is often a root cause but this is also a vain preoccupation with oneself, with one’s desires.

If one could appreciate, that is, gain an understanding of a love that is concerned with the wellbeing of the other rather oneself, the very thought of divorce would disappear. It could never be an option as it moves in the opposite direction of love.

We often hear the excuse, “But I don’t love him anymore.” Well, there’s your problem. There is no understanding of love as an obligation, a responsibility, a duty and a self-sacrifice. The common Hollywood imagination of love is really only related to desire and self-gratification.

One is not born loving. Some may find this shocking but there are no compassionate babies. It is something learned, acquired through observation and instruction. It is the most important spiritual discipline and our educational system fails terribly in this respect. A primarily morally bankrupt society will produce primarily dysfunctional individuals with no understanding of our fleeting life’s meaning or purpose. When the going gets tough the self-gratifiers will exit. The self-gratifiers will increasingly find they are unwilling to deal with even little problems.

What happens when you then introduce no-fault divorce is that society opens wide the door for all of the irresponsible self-gratifiers to flee. And since they see the door wide open to begin with, they readily and mindlessly jump right into life’s greatest responsibilities: Marriage and Family.

Chairm said...

R.K. said: it's whatever is causing the divorce [...] The distinction is important.

Nowadays you could be forgiven for thinking that marriage causes divorce. Apparently, even good marriages create divorces, although it is very difficult to produce good divorces.

Marriage creates a community of persons. Each is both a body and a freewill -- each is an integrated person. When a man and a woman integrate with each other, the community they create is based on embodiment. That is to say, the man, as a man, and the woman, as a awoman, complete one another and become a single organism in the conjugal act. But they do so as persons, not as bodies, not as ghosts that instrumentalize flesh.

When the person is treats himself as two seperate things -- a sack of skin and a personality -- he dis-integrates himself. That is the an essential step in treating other persons as things to be used. When two persons use each other, there is no inter-personal integration precisely because there is no intra-personal integration.

So to answer your question, R.K., I'd say that the cause is the lack of integration -- of the individual (both body and personality) -- which makes it all but impossible to genuinely integrate the man and the woman into a community of persons. They lack the unitary core of marriage; and they seperate themselves from the bodily reality of a man giving himself to a woman.

Jose's comment hits on this directly: Self-centeredness, selfishness, irresponsibility, immaturity and similar conditions drive people into an escapism mentality.

See, the escape is from ourselves, as persons, and from the influence of social expectations, such as the coherent set of ideas that are entailed in the sopcial institution of marriage.

By now it is an old story. We oversexualize to depersonalize our bodies and our personalities. If one cannot think, choose, and act as a self-integrated person, it is a tall order to integrate with another person in matrimony.

The twist is that marriage very often demands integration of the self due to the nature of the conjugal relationship. That is to say, if one enters a marriage without the proper formation of one's self-united self, one can quickly, and perhaps painfully, learn that this lack cannot be sustained within the community of persons of husband and wife. Marriage matures human beings, one way or another, because it is such a powerful social institution.

This is the kernel of truth that I try to express when I describe marriage as the combination of sex integration and responsible procreation.

A divorce culture expects segregation, even within marriage, even within the individual. A marriage culture expects community of persons and that depends on the unity of the couple, which depends on each person's self-unifying realizations of personhood.

We are each an embodied human being. None of us are wearing our bodies as costumes. These bodies are us, too. And so when a husband gives himself to his wife, and she to him, they do so as human beings rather than as mere abstractions.

For practical purposes, the Law teaches. And our no-fault divorce system teaches that marriage creates divorce. But it teaches nothing about what creates marriage, about what sustains marriage, about the goods of marriage.

That's really the job of the culture, as edith osb's comment suggests. The culture informs the Law. But a related problem in our society is that social reformers seek to impose their social reforms via legal reforms that disparage the goods of marriage.

A divorce culture views marriage as fragmented pieces. Just as it reflects the cultural fragmentation of the person.

A healthy marriage culture turns things the other way around. It is integrative of the sexes; it arises from the both-sexed nature of humankind, human community, and human generativity. The conjugal act makes the husband and the wife a single organism; and from this they experience themselves as united individuals -- body and personality -- choosing unity as one flesh.

The very permissive unilateral divorce mentality rejects this outright. It rejects the nature of marriage.

Alan said...

"It's not divorce itself that's the problem, it's whatever is causing the divorce, or more precisely the high rate of it. And that's what we need to determine. "

But RK, we already know the cause: Gay marriage! LOL

Chairm said...

LOL ... ? OK.

R.K. said...

No, Alan, it's not gay marriage that has caused the divorce rate to go as high as it is. You miss the point entirely. (Though I appreciate that you mean it as a joke).

I think your failure to get the point here is getting at at least one factor in why we seemed to just not be understanding each other's arguments before.

Alan said...

"I think your failure to get the point here is getting at at least one factor in why we seemed to just not be understanding each other's arguments before."

Thanks, RK. I got the point. ;)

Satire (n): the use of sarcasm or irony for the purpose of criticism. :)

R.K. said...

"Thanks, RK. I got the point."

Really? So what is it?

"Satire (n): the use of sarcasm or irony for the purpose of criticism."

Or for the purpose of dismissing the argument, relevant or not.

Alan said...

"Or for the purpose of dismissing the argument, relevant or not."

Actually I didn't dismiss anything. I was making fun of the fact that there's been so much discussion here about how gay marriage will destroy straight marriages, make the baby Jesus cry, lead to dogs and cats sleeping together, and cause mass hysteria when obviously straight marriage already has its own very serious problems, which have remained largely unaddressed by the "traditional marriage" camp due to their focus on those naughty gay people. My comment was that it was nice to see folks look in the mirror once in a while. :)

Perhaps a constitutional amendment would solve your problems? Just a thought. :)

Seriously, is conservatives' lack of a sense of humor genetic or is it a lifestyle choice? :)

R.K. said...

You know, I can't understand for the life of me why we have to have minimum ages for driving, drinking, and voting. After all, look at all the drunk ADULT drivers who are already killing people on our nation's highways. And road rage: haven't we all seen plenty of it in fifty-year-olds? Where's the "responsibility" there? And look at all the irresponsible adult voters out there that don't even know who they're voting for, or can't even read right. Hey, it wasn't the kids that elected Warren Harding, let alone Adolf Hitler, was it?Indeed, if the reason for the minimum ages is "responsibility", well, this argument falls completely apart if it is not applied consistently. After all, developmentally disabled adults now are actually allowed to vote when their mental ages are half that of a 17-year old that is still not allowed to vote. Where's the "responsibility" there? Look at all the drunk adults beating their wives. Look at all the adults speeding and causing accidents. Look at all the adults voting for crazy idiots for Congress and even for President. Real responsible, isn't it. Ah, but we know who's causing all this irresponsibility, don't we. It's THE KIDS. LOL!

So, seeing how "anything goes" ALREADY with the age limits that keep kids out, there is NO reason for minimum ages for any of these basic rights: driving, voting, drinking, etc. I've known so many kids whose responsibility puts the adults to shame. Adults, clean your own house and stop blaming it all on the kids. Minimum ages must be eliminated now, in all areas of life! :)

R.K. said...

"Seriously, is conservatives' lack of a sense of humor genetic or is it a lifestyle choice?"

Oh, my god! What are people going to DO if conservatism turns out to be INBORN!

Alan said...

"Oh, my god! What are people going to DO if conservatism turns out to be INBORN!"

We'll continue to love the sinner but hate the sin. :)

R.K. said...

Ah, but if it's inborn, it can't be a sin, right?

Alan said...

Well, clearly all the evidence demonstrates it's an abominable lifestyle choice that leads people to do awful things (eg. Haggard, Gingrich, Bob Allen, etc.) But even if it were genetic like alcoholism or kelptomania you don't have to act on it. I'm sure some electroshock therapy would cure you. And stop pushing your perverted conservatism on our children!! *sob*

Anyway, how can it not be sinful? Clearly the Bible condemns conservatives:

You must not (Gen 2:17) follow (Ex 23:2) the Bush (Ex 3:2)

You just have to read the Bible literally like we do...it's all in there! :)

R.K. said...

"I'm sure some electroshock therapy would cure you."

Or maybe something less drastic, like Aesthetic Realism, or reorientation therapy.

But this would put you in the ethical dilemma, wouldn't it, because you don't believe in that. Or is it just about who's ox is being gored?

Just for the record, Alan, I'm not a fundamentalist, or even religious. (And I'm not conservative enough for most organized conservatives, who I don't particularly care for any more than they do me.). Your assuming I am is like me assuming you talk with a lisssssp.

Alan said...

ROFL. Sorry, RK, you obviously missed this all completely. I was joking. Humor. Sarcasm. Irony. I assumed you were too given the silliness of your last couple of comments. :)

But since you seem apparently incapable of enjoying a good joke I'll be serious for a moment...

"because you don't believe in that. "

I'd like to humbly suggest that you don't have a clue as to what I do or do not believe in.

"Your assuming I am is like me assuming you talk with a lisssssp."

Once again...humor. I was satirizing conservative positions, not you specifically.

But again, since I'm being serious for a moment, your assuming that I'm a liberal is also mistaken. I'd wager, given what you've said about yourself, that I'm probably much more conservative than you are. Politically I'm an old-fashioned conservative on many issues (versus the neocons), And, theologically, I am among the most conservative people I know ... a died in the wool real live TULIP Calvinist. (Yes, there are still a couple of us surviving in the wild, but we're certainly an endangered species.)

Thanks for the laughs though...at least *I* enjoyed myself. :)

R.K. said...

"I'd like to humbly suggest that you don't have a clue as to what I do or do not believe in."

Well, if you believe in reorientation therapy or electroshock therapy or Aesthetic Realism cures (since those are the only things I was referring to), yes, that would surprise me. Do you?

"your assuming that I'm a liberal is also mistaken."

Gee, I didn't know that it was a stereotype that liberals talk with a lissssp!

"Thanks for the laughs though...at least *I* enjoyed myself."

Actually, Alan, your comments are quite enjoyable. And at least you understand me now, although our last couple attempts at humor here do seem to go past one another again. (Anyway, let's not get into a zinger contest, or a contest about who has the better sense of humor. I'll cede that to you for now).

R.K. said...

Seriously, though, Alan, I do think that if we exchanged opinions about matters in general we would probably surprise one another and discover that we aren't as easily pigeonholed after all. If I appeared to think otherwise (or to think that you thought otherwise), well, I apologize for that. Take care.

José Solano said...

Actually I’m the real liberal Democrat. I didn't care for lattes but enjoyed a good cappuccino in Greenwich Village. Nowadays I drink Earl Grey or Irish Breakfast as good coffees have gotten much too expensive.

I think that too many contemporary "liberals" have tarnished the good name of liberal by insisting that a liberal must support all sorts of perverse activities. They confuse libertine with liberal.

F. Rottles said...

Allan you haven't used humor to criticize. You haven't used to humor.

You are like an annoyingly untalented mime trying to explain his jokes. Loudly.

At a spelling bee.

You haven't said anything. You won't hide that by claiming to have been a ray of sunshine. Doesn't play as satire, either.

You have whined. And even drawn even more attention to your lack of wit in doing so.

Okay, you have stomped yoru little feet. The adults have stopped talking amongst themselves and have turned to see what you want.

there's been so much discussion here about ... [blah-blah-blah]

Spitting at people is not so witty.

when obviously straight marriage already has its own very serious problems, which have remained largely unaddressed by the "traditional marriage" camp due to their focus on those naughty gay people.

Burps like that amuse you, I guess.

But you have betrayed a claim of superiority based on your gay identity politics. You got nothing to say so you fart and think we all should giggle with you.

But you stopped guffawing and now say we should take you seriously.

You have not been paying attention to the pozts abd discussions that I, for one, have been reading at Gruntled and in which I have noticed that you have usually dropped this kind of stink bomb.

If you have something substantive to say about the actual subject of unilateral divorce, say it.

Joking, serious, joking, serious, joking, serious, blah-blah-blah, whine-whine-whine.

R.K. said...

Humor can be used to drive home a point. Often, however, it is used not to make a point, but to divert attention from the point and hope that no one will notice.

Alan said...

"Humor can be used to drive home a point."

Absolutely. :)

Again, thanks for keeping things civil and fun, RK

Oh, and Mr. (or Ms.) Rottles... try more fiber...you'll be less cranky. ;) LOL

F. Rottles said...

Alan, despite your rush to make the first comment here, you are still blowing bubbles out of your arse seven days later.

You had nothing to say on day one and you still got nothing to say about the actual subject today.

You haven't been civil but rather insulting right from the top. Passive-aggressively trying to claim it is just in good fun is transparent. Climb out of the 3rd Grade and become an adult.

Enjoy the last word -- or guffaw or fart or whatever it is you're admiring in front of your mirrored reflection.

Alan said...

Wow...such a mouth! I hope you don't eat with that thing!