January 11, 2012
No-Fault. No Way…
(1st in a Two-Part Series on Divorce)
Over the holidays, my friend Jane spent her time packing up what remained of her perfectly-detailed home of the last 23 years. Thirty year’s worth of furniture and personal possessions had already been put out on the street to be sold at a garage sale and she had winnowed the remainder down to all that would fit in the small one-bedroom apartment that she was moving to. Her voice cracked with emotion as she told me “I still can’t believe it. For 30 years I gave my all to this marriage – to Todd, to our children. I really did… and although I made mistakes – everyone does – I think I did a pretty decent job. And look at this; I’m literally out on the street.”
No-fault divorce allowed Jane’s husband of 30 years to walk away from the marriage, no questions asked. It did not matter that Jane wanted the marriage to be saved. It did not matter that Jane had given what many would argue to be the best and most productive years of her life to raising their now-grown children. It did not matter that Jane had only a few college credits under her belt and was qualified for only some very basic, entry-level employment positions. With the down-turn in the economy negatively impacting Todd’s company, he had been required to pay her only minimal alimony.
Jane had supported Todd while he built a successful career – one that will continue to pay him dividends for the rest of his life, especially when the economy turns around – while Jane, who is 55+ years, has virtually nothing skill-wise to go forward. Todd walked away from their marriage contract with no repercussions and Jane is left to live what to her is a “nightmare,” the family she has given her life to build now in shambles.
Such is just one example of the blight that has been brought into the lives of both men and women – not to mention children – by what advocates of the creation of no-fault divorce called a logical and best practice for ending the acrimony associated with divorce.
Stephen Baskerville, friend of UFI and author of Taken into Custody: The War against Fathers, Marriage and the Family, disagrees with those advocates:
No-fault divorce laws were introduced in the United States and other industrialized countries during the 1970s and are being expanded into other regions of the world today. “No-fault” is a misnomer (taken from car insurance), for the new laws did not stop at removing the requirement that grounds be cited for a divorce. But they did create unilateral and involuntary divorce, so that one spouse may end a marriage without any agreement or fault by the other. Moreover, the spouse who divorces or otherwise abrogates the marriage contract incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner,” writes Robert Whelan of London’s Institute of Economic Affairs, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”
The primary purpose of no-fault divorce law is to empower whichever party wants out, with the least possible fuss and the greatest possible speed – no questions asked. No-fault divorce does not differentiate between forty weeks, or forty years of marriage; making it easier to divorce a spouse of forty years than to fire an employee of one month – as we at UFI often point out. With the almost nationwide implementation of no-fault divorce came a sharp increase in the rate of divorce.
Did no-fault divorce actually lessen the acrimony associated with divorce?
Contrary to what had been promoted as one of the positive aspects of no-fault divorce, it did not take the acrimony out of the divorce process; no-fault law simply shifted the conflict into protracted property and custody battles. Baskerville points out:
“In the United States divorce and custody comprise over half of civil litigation, constituting the cash cow of the judiciary and bringing employment and earnings to a host of public and private officials, including judges, lawyers, psychotherapists, mediators, counselors, social workers, child support enforcement agents, and others.”
A University of Exeter study found that in over half the cases there was no recollection of major conflict before the separation. “The assumption that parental conflict will cease at divorce is not only invalid,” writes Patricia Morgan; “divorce itself instigates conflict which continues into the post-divorce period.”
But the implementation of no-fault divorce brought a particularly severe assault on “the quality, prevalence, and stability of marriage in American life.” Brad Wilcox, Director of the National Marriage Project:
“In the 1970s, proponents of easy divorce argued that the ready availability of divorce would boost the quality of married life, as abused, unfulfilled, or otherwise unhappy spouses were allowed to leave their marriages. Had they been correct, we would expect to see that Americans’ reports of marital quality had improved during and after the 1970s. Instead, marital quality fell during the ’70s and early ’80s. In the early 1970s, 70% of married men and 67% of married women reported being very happy in their marriages; by the early ’80s, these figures had fallen to 63% for men and 62% for women. So marital quality dropped even as divorce rates were reaching record highs.
What happened? It appears that average marriages suffered during this time, as widespread divorce undermined ordinary couples’ faith in marital permanency and their ability to invest financially and emotionally in their marriages — ultimately casting clouds of doubt over their relationships. For instance, one study by economist Betsey Stevenson found that investments in marital partnerships declined in the wake of no-fault divorce laws. Specifically, she found that newlywed couples in states that passed no-fault divorce were about 10% less likely to support a spouse through college or graduate school and were 6% Second, marriage rates have fallen and cohabitation rates have surged in the wake of the divorce revolution, as men and women’s faith in marriage has been shaken. From 1960 to 2007, the percentage of American women who were married fell from 66% to 51%, and the percentage of men who were married fell from 69% to 55%. Yet at the same time, the number of cohabiting couples increased fourteen-fold — from 439,000 to more than 6.4 million.”
So what do we do about it?
We all need to acknowledge that no-fault divorce is a policy error and work to change it. This is a topic that seems to garner little attention from politicians, the media or even among our friends, neighbors, and family. It’s almost as though there is some kind of moratorium on discussion of the family and societal devastation brought about by divorce. “Divorce has become an adult entitlement that has to be protected against challenge, criticism or infringement.” – Barbara Dafoe Whitehead (Culture of Divorce).
It does no good to decry “the sorry state of marriage” and the “breakdown of the family” unless we are willing to face head on the problems created by divorce, including no-fault divorce. We need to bring this to the attention of policy makers and work to change the policies that undermine the stability of marriage and families in this fashion. United Families International has endorsed Second Chances: A Proposal to Reduce Unnecessary Divorce as a first step in reversing the damage.
We should support efforts to limit no-fault divorce. Not as an attempt to force people to live together, but as an effort to provide strong incentives for individuals to work at their marriages rather than walk away from them.
“Reforming divorce laws, first of all, means re-introducing fault for violating the marital contract. It will, in effect, restore justice to the legal proceedings. “The alternative to liberal or ‘no-fault’ divorce is not no divorce,” writes Robert Whelan, “but divorce which is granted only…after due legal process to establish fault.” The obvious counter-argument, that failed marriages often entail imperfections on both sides, does not justify abandoning all standards of justice. “There is fault on both sides in every human relationship; the faults, however, are far from equal.
To effectively deter divorce, fault must entail substantial consequences. Or stated more positively, innocence must carry substantial protections.” – Stephen Baskerville
Unfortunately, a society that accepts unilateral divorce is a society that is willing to sacrifice the welfare of children to the comfort and “happiness” of adults – often to the “happiness” of just one spouse. Couples are now joined under the new dispensation to marry “for as long as you both shall love” with little or no regard for the harm visited upon a still-committed spouse and the children left in the lurch when the marriage is dissolved.
By gutting the marital contract, no-fault divorce has literally transformed the meaning of marriage. The legal innovation of unilateral divorce assisted in the reduction of marriage to nothing but a temporary association of individuals. Baskerville concludes: “In retrospect, these laws can be seen as one of the boldest social experiments in history. The result effectively abolished marriage as a legal contract. As a result, it’s no longer possible to form a binding agreement to create a family.”
And that is the most disheartening and frightening message of all. Just ask Jane.* *Not her actual name.
For more information and research on the impact of divorce, please visit UFI’s website and our Guide to Family Issues: Divorce.
President, United Families International