Re-examining the impact of no-fault divorce

Even a casual observer of the American scene can see the conservative trends that are seeking to reverse the social policies of the 1960s and '70s, ranging from state welfare programs and affirmative action policies to abortion rights. Another campaign being waged in state legislatures is the effort to get rid of no-fault divorce. While we should certainly be wary of trends, which often replace vigorous debate with one-dimensional ideologies, neither should we grant privileged status to the status quo. I think that the current debate over toughening our divorce laws is a healthy one, and deserves our renewed attention.

In the late '60s and '70s, most states adopted the policy of no-fault divorce, which meant that either party to marriage could sue for divorce with only the claim of "irreconcilable differences." This created the situation of unilateral divorce: either member of the union, upon feeling the urge to dissolve it, was free to leave.

The original intention of relaxing the divorce laws was to allow individuals trapped in bad marriages to exit easily. However, as noble as this objective may have been, demographers' surveys have shown that the number of unhappy marriages has not dwindled; to the contrary, there are far fewer happy marriages. As Maggie Gallagher, the author of "The Abolition of Marriage: How We Destroy Lasting Love," recently reported in The New York Times, recent studies have linked no-fault divorce with the steep rise in the rate of divorce over the last 25 years. Even the effort to make divorce less bitter failed; Judith Wallerstein's studies indicate that five years after the divorce, 50 percent of all couples were still engaged in conflict.

I think there are several reasons for raising the barriers to divorce. First, a society uses its legal system not only to punish but to convey its values, both to itself and to the next generation. By allowing marriage to be dissolved easily and unilaterally, we essentially state what sort of commitment we deem marriage to be.

Second, when divorce is relatively easy, it is naturally seen as an option in dealing with marital problems when they surface. All relationships, even happy marriages, undergo rough times. But marriage is not just about passion; it's about commitment, concern and mutual respect, all of which take time to foster and develop. The hard work in a marriage is after the wedding, not before. An easy exit allows for people to run away from their problems, rather than face them or deal with them. This does not mean every difficulty in a marriage is soluble; but nor does it mean that every source of tension is grounds for divorce. We deprive our children of a basic life skill when we say that the solution to every problem -- or even just to boredom -- is to walk away from it. (Does our disposable society inculcate values as well?)

An extension of this last point is the impact of divorce on children. The entire family certainly suffers when the parents are unhappy or are constantly in conflict; but it should not be that the parent's respective happiness should be the sole basis for the decision to dissolve the union, particularly when that decision affects a wider circle of people. Many children would benefit from a system that both encourages and supports those who strive for family stability, even in the face of tough times.

Third, in our common experience, we tend to invest in ways that minimize downside risk. Whether with our money, our time or our energy, we all routinely jump into situations where we have little to lose, while we are extremely cautious about getting involved in matters that could have adverse consequences for us. As it stands now, marriage is often hastily contracted because there are few negative effects; if it doesn't work out, either one can just walk out the door (witness many Hollywood unions). Tougher divorce laws may incline people to avoid such rash commitments to marriage.

Tougher divorce laws are certainly no panacea; the lamentably high rate would have to be battled on many fronts, not the least of which is greater education, starting in middle school, on the subjects of relationships, commitments and problem-solving. Insurance companies may be asked to help defray the expenses of legitimate marital therapy, when such psychological assistance could help prevent the break-up of a marriage. Tougher divorce laws do not ban divorce, but create waiting periods that allow people to pause, think and consider the seriousness of dissolving a union that is still considered sacred by many in our society.

Almost a thousand years ago, the Jewish tradition tackled this issue. Some, such as the Maimonides (12th century), favored granting women wider latitude in their ability to ask the courts to press the husbands to divorce them. Others, such as Rabbi Gershom (10th century), preferred to make it more difficult for the man to divorce his wife by requiring her consent. Ultimately, normative Jewish law came down on the side of Rabbi Gershom, suggesting that policies that foster stable homes are preferable to ones that facilitate divorce.

To be sure, no social policy is flawless. Making divorce more difficult may unfairly imprison individuals in bad or even destructive situations. Aside from the fact that the laws could take this into account, we should not let individual cases determine our social policy entirely. Widespread vaccination does lead to negative reactions in some children, but we do not seriously entertain suspending our preventive programs, which save thousands of lives from debilitating or fatal diseases.

While we must certainly proceed with caution, we should not treat our current laws favoring unilateral divorce as untouchable, which are then seen to be threatened by any effort to change them. Our social policies must balance our contemporary needs with our more permanent values. Only serious discussion of both will yield laws that can truly be said to govern us.

Michael S. Berger is an assistant professor in the Department of Religion.

Return to the April 22, 1996 contents page