Divorce Reform A Step Backward

I grant you that they were a touch idealistic. The reformers of a previous generation had an idea that no-fault divorce laws could take the acrimony out of the exit; husbands and wives would declare “irreconcilable differences” and go their merry ways.

But any neutral observer of divorce wars can tell you that the desire to lay fault at the other party’s feet remains as lively as ever. To wit, I give you Charles and Diana.

Nevertheless, as no-fault laws swept the country, states did get out of the business of deciding whether her infidelity was worse than his and whether his emotional abuse justified granting her a divorce. The courts didn’t have to decide guilt.

Fast-forward to the mid-1990s. If shame is back, can blame be far behind?

Not surprisingly, there is a movement to reform the reform and put the fault back in divorce.

In Michigan, a package of bills headed for the Judiciary Committee this month would, among other things, deny a unilateral divorce unless the spouse has grounds such as adultery, abuse or desertion.

Meanwhile, some 12 other states are considering variations on this theme. Most would make it harder to get a unilateral divorce. Many would insist on a longer waiting period of, say, five years for a divorce to be finalized.

The impetus for these policies is a belief that, in a reverse of the well-known song, breaking up is not hard to do - or not hard enough.

The policy-makers are concerned with the effects of widespread divorce itself. First and foremost is reinvigorated worry about the fallout on children.

A generation ago, the comfortable cliche was that children are better off with divorced than miserably married parents. But now, a lot of researchers say it “depends” - on how high the level of conflict is between the parents. William Galston of the University of Maryland, a chief fault-finder with no-fault divorce, says that when marriages with “low conflict” dissolve, “the damage to children far outweighs the gain to the adults.”

As for damage to adults, the most widely heralded “unintended consequence” of no-fault divorce has been to leave dependent spouses - aka women in long-term marriages who were unemployed or underemployed - with the short end of the financial stick.

This pro-fault movement also reflects a general worry about marriage as a commitment. As Maggie Scarf, author of “Intimate Worlds,” says: “Maybe we need to put some bumps in the road to divorce.”

But frankly, in my observation, it’s always “other people” who split too easily. Married folks tend to think of the hard work they’ve done to stay together; divorced folks tend to think of the hard work they’ve done to separate and survive.

It is fair to say that we have spent too little time thinking of public policies to support marriage. But there’s no reason to believe that making divorce harder will make marriage easier.

For one thing, we don’t know if no-fault divorce was the cause or the byproduct of rising divorce rates. That’s still under debate.

For another thing, older divorced women don’t do any better financially in a state without unilateral no-fault divorce, such as New York, than in states with it.

There is no certainty that changing the rules will prevent “frivolous divorces,” but it could turn “good divorces” bad. A longer waiting period might postpone a quick remarriage, but we have no idea if it would prevent divorce.

A return to those wonderful yesteryears of legal wrangle and rancor might well be worse for children. Let’s remember the one area in which divorcing parents still are required to place blame: custody disputes. It’s not a pretty model.

This reform movement has all the appeal of a quick legal fix.

But if the problem is making marriage work with all the centrifugal forces pulling people apart, why start at the break-down point, at divorce? If the problem is helping people get along, why start with policies that find fault?

Andrew Cherlin of Johns Hopkins University says ruefully, “The motto of medicine is, first of all, do no harm. That could be the first motto of public policy toward the family. But this could do harm without the promise of help.”

If so, we’ll have nothing to blame but blame itself.

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