Recently I proposed that states require a five-year waiting period for a contested no-fault divorce. If you want a quick, no-fault divorce, such a law would say to anyone contemplating divorce, you are going to have to negotiate with the man or woman you married in order to get it.
The idea provoked quite a bit of mail that fell rather neatly into two categories: applause from spouses who had been abandoned, and outrage from spouses who had ended their marriages.
This was not a gender divide. I received anguished letters from both men and women who felt their lives have been ripped apart by no-fault divorce. And I received at least as many letters from women as from men who simply could not understand the reasoning behind such a proposal.
What good excuse would keep a person in an unhappy, unrewarding relationship? asked one respondent, a woman who left a twenty-five-year marriage because she was tired of trying to please, gain love, do the right thing.’ Would it be denial of a problem? she asked. Would it be financial gain, would it be for the children,’ would it be for all the wrong reasons? My question”why would an unwanted spouse wish to stay in a marriage? What is, therefore, wrong with no-fault divorce?
This is a common sentiment among Americans, one strategy we employ to resolve the moral conflict between two spouses, one of whom wants a divorce and the other does not: You want to hold onto someone who doesn’t want you any more? What kind of loser are you?
On the other side, another woman wrote to tell me of her husband’s decision to divorce her: At age fifty-seven, he announced he would seek a divorce. All my dreams, hopes, and looking forward to some well-earned golden time’ were dashed and smashed to smithereens. Our thirty-seven-year marriage was to be erased. My former standard of living was obliterated and can never be reached again. Our laws, she complained, do not differentiate between four months or forty years.
Nor do they differentiate between a woman who wants to leave an abusive husband and a man who wants to trade in an aging wife. Our laws make no distinctions at all, because no-fault’s primary purpose is to empower whichever party wants out, with the least possible fuss and the greatest possible speed, no questions asked.
The right to leave ASAP is judged so compelling that it overwhelms the right to make (and be held responsible for) our commitments. For twenty-five years we have talked and written and legislated about no-fault divorce as if it represented an increase in personal choice. As the letters I received from divorcees suggest, this is a simplification and a falsification of our experience with no-fault divorce. For in most cases, divorce is not a mutual act, but the choice of one partner alone. We might expect that both partners would be ready to end the relationship by the time one leaves, note family scholars Frank F. Furstenberg, Jr. and Andrew J. Cherlin in their book Divided Family . But the data suggest otherwise. Four out of five marriages ended unilaterally.
No-fault divorce does not expand everyone’s personal choice. It empowers the spouse who wishes to leave, and leaves the spouse who is being left helpless, overwhelmed, and weak. The spouse who chooses divorce has a liberating sense of mastery, which psychologists have identified as one of the key components of personal happiness. He or she is breaking free, embracing change, which, with its psychic echoes of the exhilarating original adolescent break from the family, can dramatically boost self-esteem.
Being divorced, however (as the popularity of the movie The First Wives’ Club attests) reinforces exactly the opposite sense of life. Being divorced does not feel like an act of personal courage, or transform you into the hero of your own life story, because being divorced is not an act. It is something that happens to you, over which, thanks to no-fault divorce legislation, you have no say at all.
The spouse who leaves learns that love dies. The spouse who is left learns that love betrays and that the courts and society side with the betrayers. In court, your marriage commitment means nothing. The only rule is: Whoever wants out, wins. By gutting the marital contract, no-fault divorce has transformed what it means to get married. The state will no longer enforce permanent legal commitments to a spouse. Formally, at least, no-fault divorce thus demotes marriage from a binding relation into something best described as cohabitation with insurance benefits.
What have we gotten in exchange for this sweeping abandonment of the idea that marriage is a public, legal commitment, and not merely a private exchange of sentimental wishes? When in the 1970s and early 1980s no-fault divorce swept through state legislatures, its advocates promised us two great benefits: (1) no-fault would reduce conflict, as spouses would no longer be forced to assign legal blame for the marriage’s end, and (2) no-fault would enhance respect for the law, as couples longing for a divorce would no longer have to commit perjury, lodge false accusations of adultery, to get one.
In this sense, as Herbert Jacob points out in his excellent history, Silent Revolution , no-fault divorce was the brainchild of elites who consistently portrayed it as a mere technical adjustment to the law, a minor change that would in no way endanger marriage or encourage divorce, but merely close the gap between the law in theory and the law as it was actually practiced.
In reality no-fault divorce laws did something decidedly more revolutionary. Rather than transferring to the couple the right to decide when a divorce is justified, no-fault laws transferred that right to the individual. No-fault is thus something of a misnomer; a more accurate term would be unilateral divorce on demand.
The idea that couples who wish to divorce should be able to do so without making false accusations is now uncontroversial. Even the most aggressive of the new divorce reforms to restore fault recently proposed in Michigan permits couples to dissolve their marriages quietly and amicably, by mutual consent. The idea that marriage is a covenant larger than the two people who make it has already been lost.
What the current no-fault debate revolves around is the lesser question: Is marriage less than a legal contract between two people? Is the marriage contract enforceable, and if so how? When we marry, are we making a binding commitment or a fully revokable one (if revokable commitment is not an oxymoron)? If the latter, what is the difference, morally and legally, between getting married and living together? Why have a legal institution dedicated to making a public promise the law considers too burdensome to enforce?
As for no-fault’s second promise”to lower the conflict around divorce”I defy anyone but a lawyer to come to that conclusion. Lawyers like no-fault divorce because it moves much nasty human conflict out of their sight. When a wife comes crying that her husband is leaving her for the new blonde in sales, the lawyer’s job is now simply to interrupt and say, Get over it. That is no longer a legally relevant fact. No-fault divorce may have lowered the status of marriage, but at least it improved the working conditions of divorce lawyers.
Meanwhile our social landscape is littered with the cruelties, large and small, divorcing partners inflict on each other under the purest of no-fault statutes. In my own small circle of close friends and family, I have seen a husband deny his wife blankets for her bed; I have seen one of the kindest, most generous women I know greet her husband with an unrelenting stream of obscenities for weeks on end; I have known a husband call his wife a whore in front of the kids; I have seen a gentle man with no previous hint of violence savagely beat his departing wife.
These are on top of the intrinsic cruelty of divorce itself; of saying to the one person one promised to love forever, I’m not going to care for you any more. Constance Ahrons’ 1994 book The Good Divorce is a decidedly optimistic account of middle-class divorced couples. Yet she found that just 12 percent of divorced parents are able to create friendly, low-conflict relationships after divorce. Fifty percent of middle-class divorced couples engage in bitter, open conflict as angry associates, or worse, fiery foes. Five years afterwards, most of these angry divorced remain mired in hostility. Nearly a third of friendly divorces degenerate into open, angry conflict.
These statistics are matched by what Judith Wallerstein found in her (nonrandom) sample of mostly middle-class couples: Ten years after the divorce, fully half the women were still very angry at their ex-spouse. True, some couples were no longer standing in the same kitchen screaming at one another; they were screaming on the telephone instead, points out Wallerstein in her 1989 book Second Chances .
The theory that the anger and hurt generated by divorce is somehow the product of what happens for a few days in the courtroom is based on a remarkably shallow, improbable reading of the human heart. If anything, no-fault divorce shifted the long-drawn-out legal battles from fault grounds to custody, which is surely to no child’s advantage.
As the argument that it lowers conflict suggests, no-fault divorce represents an historic transfer of our cultural allegiance from the institution of marriage to the institution of divorce. Where once we seriously fretted over the possibility of breaking up marriages, today we are far more concerned about the dangers of discouraging divorce. When divorce reformers in Michigan proposed banning no-fault divorces, except where both spouses consent, they found that promising a lower divorce rate carried little political weight”not just because opponents disputed the claim, but because lowering the divorce rate is not widely accepted as a legitimate goal of government policy. What did move legislators was the fear that a fault requirement might intimidate some victims of domestic violence from leaving abusive marriages.
Despite the large logical gaps in the argument, the fear that reforming no-fault divorce might somehow endanger abused women is widely shared. In a New York Times column endorsing no-fault divorce, Barbara Dafoe Whitehead, for example, worries that reform would shred the safety net for battered wives.
This would be, if true, a serious charge. Those who make this argument do so by simple assertion, offering little evidence that battered wives have benefited from no-fault divorce. One might equally well suppose that, given the role economic dependence may play in chaining abused women to their tormentors, no-fault divorce facilitates domestic violence by failing to recognize and punish men financially for their marital crimes.
But the more one learns about the crime of domestic violence, the less likely it seems that the formal mechanisms of divorce law have much influence one way or another in helping women escape their batterers. For one thing, most batterers are not husbands. A 1991 Justice Department survey, for example, found that more than two-thirds of domestic violence offenders were boyfriends or ex-spouses, while just 9 percent were spouses. Cohabitating women, according to one review of the literature, are four times more likely to suffer severe violence than married women.
It is not a marriage license that gives batterers their hold over their victims; men willing to exert brutal physical control over women don’t depend on the fine print of divorce laws for their power. Remember Hedda Nussbaum? The fact that she was not legally married to Joel Steinberg didn’t prevent her from being battered into becoming a passive participant in her own daughter’s murder. Nor should we be deluded into accepting the notion that a piece of paper called a divorce will protect abused women from their batterers. Who can forget Nicole Brown Simpson?
Yet the idea that enforcing the marriage commitment may hurt abused women is one of the founding myths of the divorce culture. Though advocates now use this argument to oppose legal reforms, they used it with equal facility in the 1970s to attack the tattered remnants of social disapproval of divorce. Any barriers to divorce”moral, legal, or cultural”must be ripped away, this argument implies, lest they discourage some woman somewhere from leaving an abusive man.
Of course in America from its earliest history, outrageous conduct on the part of a spouse has always been considered grounds, both legal and moral, for a civil divorce. Divorce advocates reject the obvious alternative”incorporating contemporary views of domestic violence into both our legal and moral framework for divorce”as insufficient. But once we accept the divorce advocates’ false first premise”that marriage puts women at special risk of abuse”it becomes hard to stop the gradual dismantling of marriage as a protected social, moral, economic, and legal relation. For accepting the argument from domestic violence implies a false and dangerous corollary: that weakening marriage as an institution somehow protects women as a class.
Could there be any relationship between the embrace of no-fault and the rise in divorce? Until recently, academic researchers said not. Nearly every study of divorce and the law has concluded that legal changes have little or no impact upon the rate of marital dissolutions, wrote social historian Elaine Tyler May in Great Expectations: Marriage and Divorce in Post-Victorian America (1989), repeating the conventional scholarly wisdom. But evaluating the effect of law on divorce rates turned out to be tricky. Not only do state statutes vary, but different states changed different aspects of divorce law. Some states merely added no-fault to other grounds for divorce. Others abolished fault altogether. Still others cut waiting periods.
Many of these earlier studies assumed all the changes lumped under the no-fault rubric had the same effect on divorce rates. Moreover, in many cases states officially passed no-fault laws only after judges had already effectively changed the law to ease divorce. In these cases, statutory changes merely codified what the common law practice already was. To add to the confusion, many other states were suddenly labeled no-fault states not because the law had changed but because they were added to a catalog of no-fault jurisdictions assembled for a 1974 listing in the influential Family Law Quarterly . Since early researchers sometimes relied on this listing as definitive evidence of when states adopted no-fault (when in fact the law had not changed or had changed much earlier), they concluded (naturally but wrongly) that the law had no effect on the divorce rate.
Several recent studies, however, confirm what common sense suggests: Changes in divorce law did increase the divorce rate. No-fault divorce laws may account for somewhere between 15 and 25 percent of the increase in divorce that took place in the seventies.
In other words, while there are many social and economic factors conspiring to weaken our marriages, no-fault divorce laws have pushed us over the edge from being a society in which the majority of marriages succeed to one in which (according to demographers’ estimates) a majority of new marriages will fail. When divorce is made quicker and nonjudgmental, more marriages fail. And the story about marriage contained in the law”of marriage as a temporary bond sustained by mutual emotion alone”is becoming the dominant story we tell about marriage in America, eclipsing older narratives about stubborn faith and commitment, till death do us part.
No-fault divorce is thus both a cause and a symptom of our current marriage crisis. When the law treats divorce as a unilateral right of one partner, culture can hardly take seriously the moral claims of marriage. Similarly, when as a culture we begin to reclaim the lost ideal of marriage, we will certainly change our marriage laws to match.
How will we know when America has begun to rebuild a culture of marriage? When the terror of a divorce delayed pales in our minds in comparison to the horror of seeing an innocent spouse dumped”then and only then will Americans have escaped the divorce culture we now inhabit.
As a critic of contemporary divorce, I am eager to find ways to curb the American appetite for divorce. Our high divorce rate cannot be sustained for another thirty years without incurring unsupportable social costs and casualties. Even so, I do not favor legislation to restore fault to the divorce process. To be sure, no-fault divorce law is nothing to brag about. Intended to simplify the administration of divorce, it has unintentionally led to a legal system of divorce on demand. Nonetheless, it does not follow that the repeal or reform of no-fault divorce will be effective as a deterrent to divorce in general. Indeed, at this moment in time, I believe a fault requirement would do more harm than good. In the short term, the obligation to establish a legal finding of fault may deter some divorces, encouraging couples who are wavering over a decision to divorce to work out their marital difficulties. But the deterrent effect is likely to be weak. Most people do not contemplate divorce until their marriage is in very bad shape; by then, clergy and therapists say, it is very difficult to salvage the marriage. The fault barrier comes too late in the divorcing process. Moreover, the deterrent effect of a fault requirement would also be indiscriminate. Some marriages will be preserved that probably should end, including those that involve physical violence and abuse. Unfortunately, fault is likely to be most successful in deterring socially isolated and timorous women, often battered wives, from seeking divorce. It would be a cruel irony indeed if a pro-marriage policy unintentionally became a pro-bad-marriage policy, giving aid and comfort to the critics of the institution. Fault law invites litigiousness as well, and thus intensifies and prolongs conflict. In conversations with men and women working in family court, I find many critics of our current system of divorce. But I have yet to find anyone who thinks fault divorce would reduce litigation or lower conflict. Requiring fault would be bound to hurt the children who will be caught in the crossfire. If we have learned anything from thirty years of high divorce, it is this: When divorcing parents have legal incentives to fight, they will. And fault gives them yet another incentive. Inevitably, children will be recruited as informants and witnesses in the legal battle to establish fault. The fault finding may also be exploited to prejudice or interfere with the child’s attachment to the at-fault parent. Of course, this ugly practice of blaming and discrediting the other parent goes on under no-fault divorce law, but fault will provide legal justification for such behavior. Moreover, establishing fault in contested cases would require more aggressive and time-consuming litigation and thus more billable hours from lawyers, therapists, private investigators, pension specialists, expert witnesses, and all the others in the divorce industry. This will create financial constraints and burdens for those who can least afford it. The Ivana Trumps of this world may have the resources to fight a protracted fault battle (and to win some of its spoils) but not the average first wife, especially if she has spent her life as a full-time wife and homemaker. Since most legislation limits fault to contested divorces involving children, children are likely to be the biggest economic losers. Marital assets will be squandered and dissipated in fault battles, leaving fewer resources for the maintenance and care of the children after the divorce. Over the long term, proponents of fault argue, higher barriers to divorce will increase commitment to marriage. If divorce is harder to get, couples will try to maintain high-quality marriages from the outset. This argument is appealing in the abstract. But it is less persuasive in the concrete, especially when we consider the cohort that will probably be most deeply influenced by the reintroduction of fault: young adults approaching marriage for the first time. One of the most disastrous consequences of the divorce revolution often goes unacknowledged. Today’s young adults, many the children of divorce, are more ignorant and wary of marriage than any earlier generation in the nation’s history. Those who grew up with divorced parents have little practical knowledge of marriage and thus are two to three times more likely to divorce than their generational peers who grew up in married-parent households. But the problem goes beyond that. There has been a nearly total breakdown in the capacity to transmit a usable body of thought and practice on marriage to the next generation. The cultural infrastructure that once existed to guide and instruct young adults in marriage has collapsed. Today’s young adults are slouching toward marriage in a profound state of cluelessness about its requirements and rewards. Many know nothing about marriage other than what they gather by looking around. The percentage of young adults who agree with the statement One sees so few good marriages that one questions it as a way of life has increased steadily since the l970s, while the percentage of those who believe they will be married for a lifetime has declined over the same period. For a generation so worried and confused, the impact of fault law is more likely to discourage marriage than encourage it. Researcher Scott Stanley has identified two crucial dimensions of marital commitment: dedication and constraint. Both are effective in sustaining marriage, especially if they work in an appropriately complementary way. But constraint alone can lead to resentment and a feeling of being trapped, Stanley says. To use the law to intensify constraint at a time when we have abandoned any effort to strengthen dedication to marriage is to further dishearten young adults. Experience tells them: Odds are, your marriage will fail. Fault law says: The state will keep you married for better or worse. Far from encouraging marriage, therefore, fault law will likely have the opposite effect. Young adults will interpret legal restrictions on divorce as yet another reason to avoid marriage. In short, fault law may further weaken and undermine the commitment to marriage, the very institution it intends to save. Worse, it sends a glum and dispiriting message to a generation already deeply pessimistic about the chances for lasting marriage. There is a yet larger problem posed by fault law. It seeks to reassert institutional authority over marriage in a society where that authority has broken down elsewhere. This is an understandable response to our current plight. But the single-minded focus on fault law is misplaced. It misidentifies (and underestimates) the nature of the problem”which is not the breakdown of legal authority over marriage and divorce, but something that lies outside the domain of the law. The divorce revolution was a cultural rather than legal phenomenon. It grew out of a historic transformation in ideas and practices regarding sex, marriage, and parenthood. This transformation involved a complex set of social, economic, and cultural factors, but a key element was the introduction of a new psychotherapeutic ethic governing family life. According to this ethic, individuals had a primary obligation to pursue their own emotional well-being in family relationships and especially marriage. Accordingly, a good marriage was one that promoted individual emotional well-being and a bad marriage was one that at least one spouse deemed unsuccessful in achieving this goal. This ethic created a new way of thinking about the meaning and purpose of divorce as well. Once considered a last resort remedy for an irretrievably broken marriage, divorce became the psychologically healthy response to marital discontents. As the cover story in a recent Esquire magazine proclaimed: Divorce is good for you. The new psychotherapeutic ethic led to the social deregulation of divorce. It held that no institution or individual (including a dependent child) should stand in the way of the individual’s pursuit of psychological health. As a consequence, traditional institutional authority over marriage collapsed, extralegal barriers to divorce came down, and the divorce rate began to rise steeply, with the results we all now know. No-fault divorce laws lagged nearly a decade behind these cultural changes. The states adopted no-fault divorce laws in the l970s in an effort to bring legal norms into closer conformity with the more permissive extralegal norms. If divorce was a vehicle for the pursuit of individual emotional well-being, then there was no legal rationale for holding one spouse blameworthy. The best the law could do was to treat divorce as a procedural matter and make the process as simple as possible. The point is this: There is a close and dynamic interplay between legal and extralegal norms governing marriage and divorce. Although they are not identical, they work in a complementary way to support a commonly shared set of values, ideas, and practices. Legal sanctions will not curb divorce in a culture where extralegal permissions remain in full play. Consequently, we must be skeptical of the claim that more restrictive fault law will join together what the larger culture has so relentlessly put asunder. Indeed, if legal norms are radically at odds with the prevailing extralegal norms, they will be rejected as coercive and punitive, something to be evaded with the help of a clever lawyer. As long as Americans continue to view divorce as an individual and psychological event, ungovernable by any outside institutions or norms, fault law will be rejected. And, indeed, this is the case. Fault legislation has failed to win approval in every state where it has been proposed. The resistance appears specific to fault. Surveys indicate that there is public support for efforts to curb divorce through reforming divorce law. Other measures, such as legislation to extend the waiting period before divorce is granted, have been adopted in some states. Of course, political failure is not always a compelling reason to give up on a worthy cause, but it may recommend a rethinking of tactics. If efforts to use the law to curb divorce and strengthen marriage are ineffective, what will work? Two likely paths present themselves. Both reside within the cultural realm. One is to encourage those who have been the traditional teachers and norm-setters in marriage”women and clergy among them”to return to the side of marriage. In the past thirty years, many have defected to the divorce culture and become the leading teachers and norm-setters in divorce. If the custodians of a marriage tradition were to shift their allegiances, then things might change for the better. But for the moment, I see few signs that this is happening. The commitment to divorce is too strong and enduring. For the most part, women remain stalwart defenders of divorce. Even more significantly, American women today are more disenchanted with marriage than any time in the past. Although the vast majority of women aspire to motherhood, they are increasingly willing to go it alone, without marriage. More than 60 percent of young women ages eighteen to twenty-four agree with the statement that one parent can bring up a child as well as two parents. (Only 35 percent of young men agree.) Traditionally, mothers shape children’s ideas about marriage and family; it is noteworthy, therefore, that today’s divorced mothers have more negative views of marriage and more positive views of divorce than their continuously married or even remarried counterparts. A young woman I met at a church-sponsored gathering told me: I want to be married someday, but my mother is a single parent and she talks against marriage. The religious community has long had responsibility for transmitting a body of thought and practice on marriage to the young, but over the past three decades many denominations have shifted attention away from marriage preparation and enrichment to two intensely polarizing issues: abortion and homosexuality. Organizations such as the nondenominational Focus on the Family, and lay marriage and family movements such as Marriage Encounter in the Roman Catholic Church and the Family Home Evening Program in the Mormon Church have continued the work of marriage enrichment and preparation. Nonetheless, the retreat from preaching and teaching about marriage, especially among liberal Protestant denominations, has been one of the more remarkable and unremarked-upon changes in American religious life in recent years. Many churches are simply afraid to upset the divorced faithful. One divorced mother told me: My husband left me for another woman. She left her husband to marry mine. Together, they broke up two marriages, involving five children. Yet my ex-husband and his new wife come to church and sit together while I sit alone, and my church is afraid to say that this is wrong. Some clergy permit engaged couples to excise the pledge to marital permanence from their marriage vows. They join couples together in holy matrimony under the new dispensation to marry for as long as you both shall love. The other path to rehabilitating marriage is more promising. It arises within psychotherapy, a discipline that has profoundly shaped the American way of divorce. One of the most encouraging and surprising turnabouts comes from within the discipline of marital therapy, where a serious effort at rethinking therapeutic practice is now under way. William Doherty, a leading voice in the discussion, criticizes the bias against marriage among many marital therapists and condemns the language of individual self-interest that pervades therapeutic practice. Family therapists are also recanting. Best-selling author and therapist Mary Pipher writes: In the late l970s I believed that children were better off with happy single parents rather than unhappy married parents. I thought divorce was a better option than struggling with a bad marriage. Now I realize that, in many families, children may not notice if their parents are unhappy or happy. On the other hand, divorce shatters many children. Reflecting on the lessons of his clinical experience, a marital therapist concludes: If we stay in denial [about divorce’s effect on children] and refuse to recognize divorce’s cancerous effect on society, we may experience a shredding of the social fabric that may take decades to repair. Divorce is not a positive or liberating experience for everyone involved, many therapists now acknowledge. It may improve the well-being of the spouse who seeks it, but it does damage to others: the spouse who does not want to divorce, parents, grandparents and other relatives, and especially dependent children. This new view has helped inspire and support a marriage-saving movement; a conference in Washington in May brought together many of its leaders to begin work on a new marriage-saving practicum. Research studies have identified the factors most predictive of divorce, and some researchers have developed new methods and skills-building techniques to help couples communicate and resolve differences. Follow-up studies show positive results: couples trained in these skills show lower levels of marital dissatisfaction and breakup than others who do not have such preparation. The marriage-saving movement is notable as much for its location as its substance. It is springing up most conspicuously within the well-established boundaries of the psychotherapeutic culture. This movement offers a set of ideas and practices that are consistent with today’s psychological orientation to marriage. It accepts the popular notion of marriage as a couples relationship; its pragmatic aim is to improve marital satisfaction, one couple at a time, mainly by helping couples acquire better communication and conflict-resolution skills. The particular strength of the movement is that it builds upon a well-established secular strain of thought about marriage. Especially in this century, Americans have regarded marriage as an arrangement primarily designed to enhance the mutual satisfaction of the adults. And, indeed, this is one of the reasons why the marriage-saving movement will catch on while fault-finding legislation will not. If one wishes to change the culture, then it is important to identify going cultural enterprises. In a psychotherapeutic culture, where any normative declaration invites resistance and protest as an infringement on individual rights and freedoms, a can-do approach always beats a can’t-do approach. The marriage-saving movement offers a message that is competitive with Esquire ‘s advertisement for divorce. It says: Marriage is good for you. Maggie Gallagher is an affiliate scholar at the Institute for American Values in New York City and a nationally syndicated columnist. Barbara Dafoe Whitehead , a writer based in Amherst, Mass., specializes in issues concerning children and the family. She is the author of The Divorce Culture , just out from Knopf.