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Rethinking Divorce Laws Fault or No Fault?

by Muller Davis

Muller Davis has been practicing family law for 35 years. His most recent publication (with Jody Meyer Yazici) is the fourth edition of The Illinois Practice of Family Law (2000). This article appeared in The Christian Century, June 5-12, 2002, pp. 28-31. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at This material was prepared for Religion Online by Ted and Winnie Brock.

Divorce is a disruption of the collective interests of the family by the self-interest of one or both of the spouses. Divorce is selfish. In 35 years of practicing family law, I have seldom encountered a spouse who obtained a divorce out of concern for his or her partner or for the sake of their children.

Lawyers have not contributed much to the support of marriage and the family, even though the need for shoring up such support is quite apparent. Most of the best law schools have not given a high priority to family law. The family law courses that do exist have concentrated narrowly on the substantive law and the mechanics of getting people divorced. Lawyers’ role in supporting marriage may not have even been considered relevant. Their focus remains on who gets what, be it income, property or children.

Lawyers can use their offices to support marriage. But this opportunity will be missed if the lawyer does not ask appropriate questions and listen, if he (or she) does not consider the support of marriage a part of his job description, if he takes the position that a client seeking to keep her marriage together is in the wrong place, if he believes that lawyers who encourage reconciliation appear weak, or if he tries to shunt the whole problem off to the mental health professionals.

One cannot overlook the role of money in all this. Lawyers are paid more for divorces than for reconciliations.

Prior to 1969, marriage was generally regarded in most states as a contract between two parties that could be dissolved only if one of the spouses committed an act legally recognized as incompatible with the continuation of the marriage. The incompatible action was called a "fault ground" for divorce. Divorce was granted by courts only upon proof of a "fault ground" such as adultery, extreme and repeated cruelty or desertion for an entire year. At the granting of a couple’s divorce, one person was found guilty and one innocent.

These laws were satisfying to those who for religious or other reasons believed that marriage is a union or a contract for life that cannot be dissolved except in the most exceptional circumstances. But the fault laws did not necessarily preclude divorce, at least for those who could afford the process.

There were many avenues open to obtaining a divorce. The most common method was by agreement. But reaching an agreement almost invariably involved money If the spouse who sought the divorce was guilty of adultery, for example, he (or she) could not obtain a divorce in a fault state, because he was guilty of a ground for divorce. He therefore usually had to satisfy his spouse financially before she would agree to proceed against him to obtain the divorce. If the negotiations failed, a trial could result in denial of the divorce, even under circumstances in which each spouse proved the other guilty of a ground for divorce. Then the spouses, if they did not reach an agreement, were consigned to continue their marriage after a prolonged, rancorous session in the courthouse.

Fault divorce laws did not readily produce equitable results and often favored the wealthy. Despite their inadequacies, however, such laws led to fewer divorces. A partial reason for this is that the less well-off had less access to the system. A more complete reason is that the restrictive divorce laws were part of the values of a society that disapproved of divorce and favored the preservation of marriage. Marriage therefore had a framework of support in place, not only from the legal system but also from families, churches, friends, children, schools, workplaces, media -- from almost all of society. Marriages in need of repair had institutional resources from which to seek help. It was considered right to be married and wrong to be divorced.

No-fault divorce laws were enacted beginning in 1969. Every state now has no-fault grounds for divorce, permitting a spouse who is dissatisfied with the marriage to obtain a divorce simply on that ground. The theory is that a marriage in which one or both spouses no longer wish to participate is irretrievably broken down.

Divorce proliferated under the no-fault divorce laws in numbers never seen before. Coincidentally, a body of research evolved that gave divorce a respectable sociological and theoretical foundation. The research concluded that spouses in unhappy marriages are better off obtaining divorces and pursuing their individual lives. Children are resilient and can recover from being part of a broken family, according to these findings. Psychological therapy and drugs can repair people under most circumstances, so any damage that results from divorce can be fixed. The earlier concern for children of divorce and for the spouse who wanted to keep the marriage together was seen as misplaced.

It is no surprise that a crumbling of the institutional support for marriage accompanied society’s change of attitude about divorce. For example, families, clergy, psychologists and magazine columnists who formerly supported lifetime marriage now give counsel on how to get through a divorce and live one’s life afterwards. William J. Doherty reports that over 60 percent of marriage and family therapists are "neutral" on the subject of marriage or divorce in providing therapy. It does not matter whether they help create a good marriage or a good divorce.

Recently, however, there has been a reaction against the prevailing view of divorce. It began with some disquieting research in 1985 conducted by Lenore J. Weitzman in California. She concluded that, contrary to expectations, women were not able after divorce to achieve the same standard of living they had enjoyed during their marriages. Even worse, after a divorce men’s economic circumstances dramatically improved, while women’s economic positions and those of the children living with them deteriorated. Weitzman’s The Divorce Revolution led the proponents of no-fault divorce and women’s independence to relinquish one of their fundamental beliefs: that the majority of women could sustain themselves financially after a divorce without help. Most states responded by amending the spousal and children’s support laws to provide for more and longer support for dependent women.

Recent research has also emphasized the costs of divorce to children. A child of divorce is commonly subjected to abrupt and traumatic changes: loss of father on a regular and consistent basis, his replacement by a stepfather or the mother’s live-in boyfriend, and so on. Most divorces entail the absence of a father. An absent father is likely to spend less money on his children’s education and support than does a present, involved father. The absent father leaves his children less protected and more vulnerable to abuse, and his daughters are more likely to become pregnant as teenagers. Children of divorce perform less well in school, are less likely to graduate and less likely to matriculate into college. The prevalence of delinquency in broken homes is 10 to 15 percent higher than in intact homes.

Current findings indicate that children may suffer long-term negative effects from divorce. For example, significant numbers experience moderate to severe depression and difficulty in establishing love relationships. Children of divorced parents are two to three times more likely to dissolve their own marriages than are children of intact marriages. The divorce process itself has a decidedly adverse effect on children. Almost no child wants his parents to divorce. The situation can easily be exacerbated when the children are drawn into the divorce process. It does not take much effort to imagine the damage to a child whose parents are publicly struggling over her. The child herself may have to state a preference in a choice she does not want to make. Since divorce affects close to 1 million children annually, the damage created is enormous.

Not only are children disadvantaged by divorce, but the marriage partner who was supposed to benefit also suffers, according to recent reports. Both sexes have increased health hazards as a consequence of divorce. Depression is relatively well recognized as a possible result, but less obvious are the physical hazards. They range from loss of weight to increased cigarette and alcohol consumption, lower immune function and a higher risk of dying.

This research has at least corrected the assumption that divorce is cost-free to all concerned. The cost is more than individual: when multiplied by the over 1.1 million divorces per year -- which affect almost 1 million children annually -- an enormous cost is piled on society every year.

In view of these concerns, some have advocated resurrecting the fault laws, or at least enacting more restrictive laws to replace the no-fault laws. Louisiana in 1997 adopted a provision for covenant marriage" that parties may select as an alternative to ordinary marriage. Louisiana’s ordinary marriage law permits no-fault divorce after six months’ separation; covenant marriage requires either the proof of a fault ground to obtain a divorce or the couple’s living apart for a substantial period of time. Arizona followed suit the next year by enacting a covenant marriage alternative in which proof of one of the fault grounds or living apart for a period of time is required unless both parties agree to the divorce.

The theory behind this partial resumption of fault divorce is that if it becomes more difficult to divorce, there will be fewer divorces. But there is no reason to believe that the widespread reenactment of fault or more restrictive divorce laws by itself would produce beneficial results. There is no easy answer or quick fix to the phenomenon of a deluge of divorces that began in 1969 and has persisted for more than 30 years. Divorce has become ingrained in our culture. It is not even clear that the majority of Americans are interested in such a change.

Besides, the reformers face substantial unanswered questions. For example, if society gives marriage greater protection, what is to be done in cases of a adultery? Adultery will not go away. What would be the mechanism to allow the dissolution of verifiably destructive marriages? The trapped and endangered spouse must be allowed to escape.

Nor can we expect research results on divorce to deter husbands and wives from divorce. To change the divorce equation, which now favors the spouse who wants to leave the marriage, requires a change in cultural values. Marriage and the collective interests of the family must be invested with at least as much value as the right of the dissatisfied spouse to abandon the marriage.

Such changes cannot just be legislated, they cannot be accomplished by cost-benefit research, and they cannot be accomplished by one of the professions acting alone. Because these changes deal with a variety of intangibles, it is difficult even to know where to start. A promising place to begin is found in two sentences in a report by the Rutgers National Marriage Project: "Most Americans continue to prize and value marriage as an important life goal, and the vast majority of us will marry at least once in a lifetime. . . . Most couples enter marriage with a strong desire and determination for a lifelong, loving partnership." The separation between the ideal and the reality is wide. But because the ideal of a loving. lifetime marriage exists in the imaginations of so many Americans, it is a starting point from which individuals may be persuaded to give up a portion of their self-absorption in favor of the collective interests of the family.

A practical argument for a stable marriage is that an intact family is the best milieu in which to raise children. A concomitant of increasing the value of marriage in society is enhancing the worth of children. Children are entitled to at least as much attention as is paid to commerce. As children are more prized, the family will be more honored and there will be more of an effort to keep families together.

Marriage needs reinforcement from every aspect of society in order to survive. Legislation without shared social mores will be no more successful than was the prohibition of alcohol. However, this does not mean that legislation has no part in a cultural campaign to change American marriage values. Legislation, rather than facilitating divorce, can support marriage. For example, legislation could give a voice to the spouse who does not want her marriage to fail -- as well as to a spokesperson for the children -- in deciding whether there should be a divorce. Legislation can be shaped to add balance -- not favoring the spouse who wants to terminate the marriage but ensuring more protection to the other spouse and the children.

A proposal has recently been made to have engaged couples commit to mechanisms that would impose penalties or delay on divorce -- a way of discouraging divorce by making it a costly and less impulsive procedure. Another proposal is to require the divorcing spouses and their children to share the wealth that has been accumulated during the marriage in accordance with predetermined guidelines, primarily in order to give the children more financial security. Particularly useful are the provisions for pre- and postmarital counseling in the Louisiana and Arizona covenant marriage laws. Legislation can support marriage by encouraging counseling and providing resources for it, and by allowing sufficient time between the filing of a lawsuit and the entry of a divorce judgment for a spouse who opposes the divorce to have a fair chance through counseling to preserve the marriage.

What part can lawyers play? They can obviously work to help formulate more balanced legislation. Family lawyers who believe in marriage should seek to convince other family lawyers of the value of marriage. Lawyers should encourage and participate in professional seminars that teach support of marriages as well as those that teach the mechanics of taking them apart.

Family lawyers should explore with every client the potential for reconciliation and the comparative costs and benefits of staying married or obtaining a divorce. Many clients come to their lawyers’ offices in such a pell-mell rush toward divorce that they have hardly considered other possibilities or the downside of dissolving their marriage and family. Before the divorce dynamic takes over and establishes a life of its own, a lawyer can create a needed pause just by playing devil’s advocate -- a role to which lawyers should be accustomed. Marital therapy ought to be urged by lawyers in every case where there is a possibility of counseling. Meanwhile, a lawyer must be protective of a family’s children.

The most obvious situation in which family lawyers interact with other professionals is that involving counselors or clergy. Communication among all the participants is critical. The wall of therapist or clergy confidentiality cannot be allowed to prevent vital communication concerning the marriage. Preservation of the marriage and the family is at least as important as most individual confidences, A balance can and should be struck.

A reformation of the money incentives to lawyers is also desirable. A reward for reconciling couples and a system other than the hourly rate (which encourages prolonged litigation) are not impossible and would be an improvement. But such changes are unlikely to come soon, and they are not absolutely necessary.

Lawyers are licensed by the state, as are marriages. The state has an interest in marriage. In acquiring his license to practice his trade, a family lawyer should be obliged to assist the state in preserving the marriages that the state sanctions. Lawyers need to be made aware of this obligation and taught how to discharge it. Lawyer support of marriages could produce large benefits to spouses, children and society at large, but benefits would also accrue to the lawyers themselves. The perception of family lawyers could undergo a dramatic change if they lent their good offices to the constructive preservation of marriages as well as to the activity of dissolving them.

Is the genie out of the bottle? America is inundated with divorce and its consequences. Divorce is part of the fabric of society. Ironically, however, even the pursuit of individual happiness is not always fulfilled: second and subsequent marriages have higher divorce rates than do first marriages. Yes, the genie is out of the bottle. But there are many reasons why we should try to push it back in.

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