The Contentious Debate About No-Fault Divorce: Who is Most at Risk?

The Contentious Debate About No-Fault Divorce

Viewpoints of Therapists

In Michigan and a handful of other states, legislators are trying to make it harder for couples to divorce. The proposed laws would repeal blanket “no-fault” laws in the hopes that additional hurdles would prevent some divorces, particularly when one spouse objects or the couple has minor children. Under the proposed reforms, grounds for the divorce would have to be proved if one spouse does not consent to the split.

Returning to fault-based divorces could, depending on one’s position: save marriages or create even uglier divorces; give women leverage to demand more child support or financially drain them through endless court battles; and protect children from the scars of divorce or exacerbate the scarring through increased acrimony between divorcing parents.

It could also create a booming business for marriage and family therapists (MFTs) due to provisions requiring education and counseling. Furthermore, it could attract to therapy couples hoping to either mend their marriage or agree to divorce to save themselves from the ugly battle involved in proving fault. But the increase in business might be offset by the difficulty of counseling uncooperative, resistant clients participating only because the law requires it.

The debate over returning to fault-based divorces has become so contentious, ideological and rife with contradictory evidence that it is hard to discern what really matters: which law would most help a husband, wife and any children involved in a divorce.

Oklahoma was the first state to introduce no-fault divorce in 1953, but most states followed suit only after then-Governor Ronald Reagan signed it into law in California in 1970. Until then, fault-based divorce required one spouse to prove the other was to blame for the failure of the marriage. Mates alleged adultery, cruelty, desertion, drunkenness. They hired detectives to gather evidence against their spouses or, if couples had no court-recognized reason to divorce, the pair picked an allegation and agreed that the blamed spouse would “confess” to it.

With the advent of no-fault divorce — named after no-fault insurance — blame is no longer an issue in granting a divorce. The goal was to simplify the divorce process, reducing conflict and cost. Instead, argue its critics, no-fault divorce has driven up the divorce rate and shifted the acrimony from the battle over who is to blame for ruining the marriage to battles over child support, visitation and custody.

Current Vs. Proposed Laws on Divorce

In Michigan — a typical no-fault state — if 45-year-old Joyce wants to divorce Joe, her husband of 15 years, it doesn’t matter that he opposes it. Joe’s out of luck: Joyce can file without his consent. The judge need not consider whether Joe had an affair or Joyce is gambling away their savings in order to grant their divorce. As in most states, the only place the judge might consider fault (that affair or gambling) is in deciding alimony, the division of property, custody and visitation rights.

But under proposed legislation introduced on Valentine’s Day, Joyce would have to jump through many more hoops to divorce her husband. First, either Joe, the judge or Joyce herself could require that the couple attend a predivorce education program on marriage, divorce, parenting, and substance abuse.

Then, if she still chose to proceed with the divorce, she would have to prove that Joe was at fault for the marriage’s failure by demonstrating that, for example, he had committed adultery, abused drugs or alcohol, or committed “significant or repetitive mental abuse” of her or her children. Finally, if Joyce convinced the judge to grant the divorce, she and Joe would be required to develop a parenting plan.

If, however, somewhere along the way Joe had agreed not to fight the divorce, the couple could return to some provisions of the current no-fault law, such as divorcing without proving one spouse was at fault. Nevertheless, because they have minor children, the proposed legislation would require that they both attend the predivorce educational program. And if they still wanted to file for divorce afterwards, they would have to develop that parenting plan.

No-Fault Under Attack: Why Now?

The predominant support for toughening divorce laws comes from religious and right-wing groups. Decrying the shrinking number of traditional nuclear families, “the Christian Right’s agenda is to force people to stay married,” says Laura Boyd, PhD, a Democratic state legislator in Oklahoma, an MFT and a trained divorce mediator. But the cry for renewed “family values” tied to this battle seems to reflect a broader societal disenchantment with a culture of divorce and remarriage. Roughly half to two-thirds of couples marrying in the 1980s and 1990s will divorce, the majority with minor children.

Discontent with more profound societal ills may also be responsible for the scapegoating of no-fault divorce laws. “When politicians can’t find solutions to society’s woes, to inadequate and a woefully underfunded health care system, they choose the most vulnerable system in society to scapegoat: the Family,” argues Constance Ahrons, PhD, director of the MFT program at the University of Southern California and author of The Good Divorce.

Families are suffering from society’s woes, and divorce often makes it worse. As hard as it is for households with two parents to make ends meet, single mothers and their children are at a greater financial disadvantage. According to 1994 Census Bureau statistics, the median annual income for a married couple with children is $47,244, while that of a single mother (those who divorced or never married) is $14,902. Studies suggest that after a divorce, the average annual income for a household with the custodial mother and her children drops roughly 30 percent while the husband’s finances rise by 10 percent.

Tougher Divorce Laws: Are They the Answer?

Proponents of fault-based divorce argue that their proposed legislation would:

1) Reduce the divorce rate.

Citing a highly-publicized University of Oklahoma study recently published in the Journal of Marriage and the Family, they claim that divorce rates have skyrocketed since no-fault laws spread throughout the 1970s. They fail to mention that the study’s authors themselves acknowledge that they did not consider a number of other factors, such as the increase in the number of working wives, whose financial independence makes divorce a more viable option. The skyrocketing rate may also have been due to the backlog of cases from couples who had postponed filing until their state passed no-fault legislation, as well as to other sociological changes. Barbara Kessler, an Ann Arbor, Mich., family lawyer who supports the no-fault law, maintains that society has shifted toward serial monogamy, and external controls such as tougher divorce laws aren’t likely to change that societal evolution.

2) Give non-consenting spouses more power to fight for their marriages.

With no-fault divorce, the spouses who want out have unilateral power to end their marriages, while their non-consenting spouses have no recourse. In fact, some religious and right-wing groups argue that no-fault divorce reduces both spouses’ commitment to marriage. The Michigan Family Forum, a Christian group, quips that it turned marriage into “notarized dating.” Columnist John Leo wrote in U.S. News & World Report that “Under no-fault divorce, marriage increasingly carries no more inherent social weight than a weekend fling in the Bahamas.”

Ironically, feminist attorney Jean Ledwith King, of Ann Arbor, believes reintroducing fault would not save marriages but would give wives more power to negotiate higher divorce settlements. She argues that if a husband wanted his wife to agree to divorce him, she could hold out for a better package for she and the children in exchange for her cooperation. “Fault gives you the kind of leverage that a labor union has with the capacity to strike,” she says. However, other matrimonial attorneys say that women request the majority of divorces, and they would more likely be held hostage by a husband who did not want to divorce them than vice versa. They also wonder if that husband could say, in effect, “I’ll give you a reason to divorce me,” and begin or intensify abusive behavior.

3) Protect the nuclear family and its political role.

Paulist Father Robert A. Sirico, a Catholic priest and president of the Acton Institute for the Study of Religion and Liberty in Grand Rapids, Mich., writes: “The family is the fundamental institution of any free society. It transmits values, socializes us as children and protects us as adults. And, as those who love liberty need to be reminded, strong families are essential for freedom because they are the bulwark against state power.”

But Michigan attorney Kessler questions this logic, arguing that the Right doesn’t support a government role in ultimately helping families survive. “If we truly believed that everyone has the right to a happy, healthy and fulfilled life, we’d structure in universal medical care, child care, and right to a job,” she states.

4) Protect children from the scars of divorce.

Believing that children suffer more from divorce than from a problematic marriage, they argue that the obstacles in fault-based laws could preserve some threatened families. But many MFTs and matrimonial lawyers disagree.

“How much better is it for families when dad has to prove mom did terrible things in order to get the divorce?” asks Kessler. “The more you insert the adversarial process into family dissolution, the greater potential for damage from which no one will recover. Becoming completely divorced is an emotional as well as a legal process. If the spouse opposing the divorce can delay the process, it creates a terrible block in the emotional recovery needed to complete the divorce. And the more parental distress, the harder it is for the children to recover.”

While fault proponents argue that divorce causes psychological problems in children, there is evidence to the contrary. In a review of research on children and divorce, Paul Amato, PhD, of the University of Nebraska, found that children’s’ adjustment depended less on the divorce than on the parents’ conflict, the custodial parent’s childrearing skills, the involvement of the non-custodial parent, economic hardship and stressful life changes. Some studies suggest that children with parents in a high-conflict marriage do better if their parents divorce, while children with parents who are disaffected but not in major conflict do better if they stay together.

Ahrons notes that “research shows children have no long-term damage when they continue to have relationships post-divorce with two emotionally healthy parents and when the parents do not embroil the children in their conflicts.” Furthermore, she adds research shows that “much of the negative effects on children predate their parents’ separation.”

Alternatives to Changing No-Fault Laws

Opponents of fault argue that there are more effective ways to protect children from the scars of divorce. Such means include creating more equitable settlements: increased child support, alimony for mothers who need to stay home with children or who would have difficulty supporting themselves after decades as homemakers.

Oklahoma Rep. Boyd and many matrimonial lawyers promote mediation as a less adversarial way to complete a divorce. Lawyers note that no-fault divorce, while less contentious than the old fault laws, is still adversarial. Mediation, on the other hand, can help partners begin the process of voluntary cooperation that the proposed “reform” laws would require through mandated parenting plans.

Members of the Academy of Matrimonial Lawyers oppose efforts to repeal no-fault, which they argue would boost their income but further overcrowd the courts and traumatize children. Like Boyd, they support improving a fragile marriage’s chance for success instead through pre-marital and marriage counseling. Counseling provisions are already mandated in some states; other states have attached them to proposals to amend no-fault laws.

Some MFTs and lawyers find themselves attracted to those counseling provisions, while opposing the fault legislation to which they are attached. Michelle Weiner-Davis, MSW, author of Divorce Busting, says she likes the idea of mandatory counseling. “Most people don’t realize the magnitude of the effect of divorce,” Weiner-Davis says. In her practice in Woodstock, Ill., she has found that even “late stage cases” can be saved through counseling. “It also wouldn’t hurt for them to hear interviews with divorced people who discovered “the next man may not be better than the one you’re with,” she adds.

Ministers and therapists are offering pre-marital education and counseling as preventive medicine, and some states like the idea of voluntary incentives to attend. Michigan’s legislative proposal would grant marriage licenses for $20 to couples undergoing a pre-marital education program, while those who refused to participate would be charged $100 more and face a 30-day waiting period. Another state promotes tax credits for couples who attend pre-marital classes.

Even when a divorce is inevitable, some states now mandate parent education programs after the divorce is granted. Karen Blaisure, PhD, assistant professor at Western Michigan University, talked with program leaders across the nation as part of a study on court-connected education for divorcing parents. Program leaders said that while many divorcing parents resented being ordered to attend, most reported that understanding the emotional effect of divorce motivated them to coparent with their ex-spouse more effectively.

MFTs Caught in the Middle

Many MFTs have spoken out against efforts to repeal blanket no-fault laws, but their organizations have been more circumspect. In Michigan, while the state Bar’s family law section, representing divorce attorneys and the state National Organization for Women opposed the package of legislation, the MAMFT remained neutral, choosing to influence the proposed legislation through expert testimony on divorce research.

On a business level, it appears that MFTs would profit either way, since therapy is increasingly being mandated or encouraged under current no-fault laws and is included in most proposed fault legislation. On an ethical level, Ahrons sums up her concerns this way: “The challenge we face is not to be drawn into this highly-charged, politicized debate. Our voices need to be heard as a reminder about the importance of looking at the complexities and realities of postmodern families, not being the moral arm of the conservative movement to promote some simplistic, one-dimensional ideal that all families must fit into.”

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