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Home Front

By Elizabeth Schoenfeld

Drumbeats for divorce reform

Lighting the Match

On September 5, 1969, with a stroke of his pen, California governor Ronald Reagan wiped out the moral basis for marriage in America.

          Within five years, 44 states had followed California's lead in instituting some form of no-fault divorce reform. (Oklahoma and Maryland already had no-fault laws on the books, but the Golden State is credited with igniting a national wildfire.) Today, every state in the nation permits at least one of two no-fault mechanisms for dissolving a marriage: (1) one or both spouses can sue for divorce because of "incompatibility," "irreconcilable differences," or "irretrievable breakdown of the marriage"; (2) a couple can request a divorce after obtaining a legal separation and waiting a certain period of time. No longer must a spouse prove cruelty, desertion, or adultery, the traditional grounds for divorce.

          At the time, such legislation seemed humane and enlightened. It was hailed as an overdue reform of a wink-wink, nudge-nudge system rife with hypocrisy and lurid accusations. Under the fault-based system, the suing partner had to prove the fault of the other and show themselves to be blameless; otherwise their respective culpability canceled each other's claims. Because the assessment of guilt determined the division of assets between spouses, the stakes were high. Even when both partners desired the divorce, they were often reduced to perjury and collusion, sometimes staging "adulterous liaisons" to be captured in grainy photographs by lurking private eyes. And the definition of cruelty in a marriage was stretched to ludicrous lengths.

          Although attorneys and women's-rights advocates argued vigorously for reform, most Americans disagreed. In 1968, just before the wave of no-fault reforms, less than 20 percent of the general public wanted to make divorce easier, and nearly two-thirds wanted to make divorce laws even stricter.

          It turns out that the public's instincts were right. With the advent of widespread no-fault divorce, the United States saw a dramatic surge in the number of divorces granted each year. In 1960, 16 percent of first marriages ended in divorce; today, the figure is closer to 50 percent. In the five years following the enactment of no-fault in California, the national divorce rate increased almost 40 percent.

          The causal connection between the unravelling of divorce laws and the unravelling of marriages is admittedly debatable. But it seems clear that the states' drive to make divorce more humane inadvertently denuded marriage of any meaning. In her forthcoming book, The Abolition of Marriage: How We Destroy Lasting Love, Maggie Gallagher, a scholar with the Institute for American Values, writes, "From a formal, legal standpoint, marriage is no longer an enforceable commitment." With no-fault divorce, wrote David Wagner in a paper for the Family Research Council, "marriage becomes nothing more than notarized dating."

          Last year in National Review, Robert Plunkett, the vice dean of the Southern California Institute of Law, eloquently described the legal case against no-fault divorce: "The wedding vow has devolved from being the most serious and solemn oath a typical person ever made into being less than a contract. An oral contract made with a two-year-old is more binding than the contract of marriage; it at least binds one party, the adult. A marriage contract is binding on no one."

          Equally clear is the harm to innocent parties under the no-fault regime: They have been stripped of their legal protection. Even when one spouse desperately wants to keep the marriage together, he or she has no legal recourse, and may have to shell out thousands of dollars in legal fees for an unwanted divorce. All the power belongs to the initiator.

          In addition to its unintended consequences, no-fault divorce hasn't necessarily fulfilled its goal of attenuating the acrimony of divorce proceedings; the conflict has merely shifted from the allocation of blame to conflicts over child custody and division of property. It still gets ugly when families break apart. In divorce, the scarlet letter no longer stands for adultery -- it now can refer to malicious accusations of child sexual abuse.

Repairing the Damage

          As the moral consequences of America's soaring divorce rate have become clear, even leading Democrats are voicing their support for stricter divorce laws. In her syndicated newspaper column, for instance, First Lady Hillary Clinton recently wrote, "I think getting a divorce should be much harder when children are involved. . . . Divorce has become too easy because of our permissive laws and attitudes." She goes on to say, "The good news is that attitudes about marriage and divorce seem to be changing. Some states are beginning to examine whether their divorce laws are too lax. Grass-roots campaigns to help preserve marriage are flourishing around the country."

          William A. Galston, a professor at the University of Maryland and a former domestic policy advisor to President Clinton, offered a more concrete view in a New York Times editorial last December: "For couples with dependent children, we should eliminate unilateral no-fault -- where one person can readily obtain a divorce without the other's consent -- and return to an updated fault-based system, with the alternative of a five-year waiting period. And even in cases where both parties consent, there should be suitable braking mechanisms: a mandatory pause of at least a year for reflection, counseling and mediation."

          Although prominent liberals are joining the rhetorical battle, Christian and other conservative family groups and lawmakers are leading the policy debates within state legislatures:

          Michigan. State representative Jessie Dalman has put forth a package of marriage and divorce reforms, most notably abolishing unilateral no-fault divorce -- whether or not children are involved. Her plan would still allow no-fault if both parties agree to the divorce, but if one party objects, the person filing would need to demonstrate fault -- namely adultery, desertion, physical or mental abuse, drug or alcohol addiction, or incarceration for more than three years.

          Dalman also wants to encourage premarital counseling for marriage-license applicants, improve enforcement of child support, and require couples with children to receive divorce counseling before filing for divorce and to submit a "parenting plan" to the court. The bill, vigorously supported by Republican governor John Engler, is scheduled for a vote in late April.

          The Michigan Family Forum, a nonprofit research group in Lansing, laid the intellectual groundwork for the legislation. It recently published "Breaking up Is Easy To Do," a short but useful guide to the history of divorce reform in Michigan and across the nation. Full of statistics and references to important resources, it's a great tool for educating activists and lawmakers.

The Michigan Family Forum can be reached at 517-374-1171.

          Idaho. Representative Tom Dorr has introduced The Justice in Family Law Act, which would require mutual consent in all divorces filed on grounds of irreconcilable differences -- most states' version of no-fault divorce -- whether or not children are present. Because Idaho does not recognize legal separation, however, critics voiced concern about spouses caught in abusive relationships. Dorr has added a bill that establishes legal separation.

          Although both bills are expected to die in committee this session, they will probably become a top conservative caucus issue for the 1997 session.

For information, call Dennis Mansfield, the executive director of the Idaho Family Forum, at 208-376-9009.

          Georgia. Representative Brian Joyce's bill to remove "irretrievable breakdown" as grounds for divorce was killed in committee this March, but he intends to introduce it again next year. (No-fault would still be permissible if both parties agreed and no minor children were involved.) After talking with representatives from the Georgia chapter of the National Organization for Women, Joyce added provisions that would allow a unilateral no-fault divorce for spouses involved in physically abusive marriages.

Brian Joyce can be reached at 404-656-0265.

          Iowa. Despite the support of Republican governor Terry Branstad, a bill similar to Michigan's was killed in the house in March. Lawmakers vow to reintroduce the legislation next year.

For more information, contact state representatives Charles Hurley and Danny Carroll at 515-281-3221

          Colorado. Although no divorce-reform legislation is now in the pipeline, just watch. Tom McMillen is executive director of the Rocky Mountain Family Council, a politically savvy think tank that has helped to devise a three-year plan: in the first year, educate the public on the ill effects of divorce; in the second, work with churches to develop community marriage policies to support existing marriages; in the third, introduce legislation.

Tom McMillen can be reached at 303-456-9285.

          Legislatures in several other states, including Illinois, Pennsylvania, Florida, Indiana, and Kansas, are considering reforms of no-fault divorce this year, but these are given little chance of passing. Earlier this year, pro-family legislators in Virginia tried to pass a law to prevent unilateral no-fault divorce when children are present. It was shot down quickly in committee.

          Still, the issue is here to stay. Larry Huff of the Family Research Council reports that more bills are expected to be introduced next year in Maine, Washington, and several other states. Meanwhile, a recent poll shows that more than half of all Americans think that divorce should be more difficult; support for reform is especially strong among adults under the age of 30 -- the generation that suffered widespread divorce as children.

Fallout Shelters

          When mothers and fathers decide to divorce, their children get caught in the litigation crossfire. In order to shield these youngest of victims and to reduce the caseload of post-divorce litigation, family-court lawyers and judges across the country are now mandating that couples seeking a divorce first learn how their decision affects their children.

          One of the largest and most widely emulated programs can be found in Cobb County, Georgia, where parents must complete a four-hour seminar within 31 days of filing for divorce. Operated by a nonprofit social-service agency called Families First, the seminar teaches parents how to tell their children about their decision and how to ease the disruption and sense of loss that divorce brings to children.

          Since 1988, the program, known as "Children Cope with Divorce: Seminar for Divorcing Parents," has taught ex-spouses how to handle visitation and parenting issues and avoid using the children as messengers or weapons. The $30 fee can be waived for those who cannot afford it, but the program is mandatory.

          There's a good reason for that: Court administrators and judges have found that when such education programs are voluntary, parents rarely attend. Their daily lives are already collapsing, and they seldom see the need for any outside counseling. Family law officials also have found that the attendance of both parents is vital. If only one parent learns about the effects of divorce on the kids, he or she is usually willing to concede more in order to protect the children -- a distinct disadvantage in negotiation.

          Although parents are often reluctant or openly resentful when they begin, more than 95 percent leave the program feeling it was useful and that it will improve their behavior. And that's not just talk. In Cobb County, the rate of court appearances for post-divorce litigation such as custody and support has dropped to 15 percent of divorcing couples.

          Other programs boast similar results. Before Jefferson County, Kentucky, established its Families in Transition program, one in three families found itself back in court within a year fighting over child-related issues. After the mandated program began, the rate dropped to 10 percent. Many jurisdictions without a similar program report a rate of 25 to 35 percent.

          The "Children Cope with Divorce" curriculum has been exported to other jurisdictions in Georgia and around the country, and counselors and court officials from all over the United States and Canada are going to Families First's offices to learn the program.

For more information, contact Bev Bradburn-Stern, the director for community education and training at Families First, P.O. Box 7948, Station C, Atlanta, Ga. 30357. Tel.: 404-853-2860.