|Why is Divorce Reform Legislation Needed?|
Why is Divorce Reform Legislation Needed?
Marriage and Divorce in America
America, the most religious modern nation, has the highest divorce rate in the world.Gallup Polls estimate that two-thirds of Americans are members of a church or synagogue and two-fifths attend services in any given week. Yet U.S. divorce rates are double that of Canada, France or Germany where church attendance figures are less than a quarter that of the United States.
Every year since 1970, there has been one divorce for every two marriages.Though
86% of couplesexchange vows before clergy to remain together “for better, for worse…till death us do part,” and Christians hear Jesus’ injunction that “what God has put together, let no one put asunder” -- 43 million couples divorced from 1970-2007, shattering the lives of 41 million children.
Tens of millions of those children of divorce are now adults, and they are afraid of marriage because they fear divorce, having seen what it did to their parents. America’s persistently high divorce rate has led to a disintegration of marriage, the central building block of every culture over the millennia. These trends are detailed in a new book which my wife, Harriet, and I have written, Living Together: Myths, Risks & Answers.
Thus, divorce casts a long shadow across America, prompting millions to enter faux marriages, cohabitation, which many think is a step toward marriage, when it is really a step away from the institution. And cohabitants who marry are much more likely to divorce, creating a deepening cultural spiral. In less than two generations, the percentage of adults who are married has plunged from two-thirds to less than half.
Nothing could be more important to breaking these trends than reversing America’s high divorce rate. If one could wave a magic wand, and slash the nation’s divorce rate in half, 500,000 kids would not see their parents divorce each year. They would be more likely to marry and less likely to cohabit. That, in turn, would push down divorce rates even further.
No-Fault Divorce Is Really Unilateral Divorce
Why do Americans divorce more than other countries? In 1969 California passed the first so-called “No Fault Divorce” law that was signed by then Gov. Ronald Reagan. Similar legislation pushed by divorce attorneys passed in almost every state in the early 1970s. Its intent was allegedly to reduce the conflict in divorce cases by allowing couples to divorce without proving fault -- adultery, physical abuse, etc. It was a flawed premise. All divorces are inherently contentious.
Furthermore, No Fault should be called “Unilateral Divorce,” because 80 percent of divorces are unwanted by one spouse. Frank Furstenburg and Andrew Cherlin report in their book, Divided Familie, “four out of five marriages ended unilaterally.” A father (or mother) as the result of the “forced” nature of No Fault Divorce, can lose a family, home, access to children and pay high child support. “Anyone who gets married has to worry about losing everything in a divorce,” asserts John Crouch, a divorce attorney who is also Director of Americans for Divorce Reform. Perhaps 50 million Americans in broken homes live under court orders, intrusively dictating terms of how each family is to live. No Fault allows one person to file on vague grounds of “incompatibility” even though the other spouse typically wants to save the marriage. The divorce is always granted.
No Fault Divorce is Unconstitutional.
That universal outcome, of every divorce being granted appears to violate the U.S. Constitution. Both the Fifth Amendment and the Fourteenth Amendment guarantee that “no person be deprived of life, liberty or property without the due process of law, nor deny to any person within its jurisdiction the equal protection of law.” How can there be “due process” of law if every divorce is granted? Yet challenges to the law’s constitutionally do not succeed in state courts or even the U.S. Supreme Court. In fact, one Florida woman who tried to challenge her divorce on grounds that it violated her constitutional rights, was fined $15,000 for “dragging her feet.” (For detail see her Case Study in Obstacles to Divorce Reform) Yet consider what Chief Justice John Marshall wrote in an 1819 case, which is eerily prescient: “
When any state legislature shall pass an act annulling all marriage contracts, or
allowing any party to annul it without the consent of the other, it will be time
enough to inquire whether such an act be unconstitutional.
History of No Fault Divorce
Although state legislatures write marriage and divorce laws, they pay often use already-drafted laws from a group known as the National Conference of Commissioners on Uniform State Laws. Its work includes the Uniform Commercial Cost, the Uniform Partnership Act and the Uniform Probate Code.In 1965 the Commissioners announced they were going to draft a new divorce law, a “blueprint for the states” which they called “The Uniform Divorce Project.” By 1968, the Ford Foundation made a grant to staff the project. The stated goal of the Model Law was “to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships.”
However, their macabre work had just the opposite impact. What they did was to essentially strip the judge of any “judicial discretion,” in divorce cases. Any person who filed for a divorce got one, regardless of circumstances. What made the “Uniform Divorce” proposal uniform is that the divorce would always be granted. A California State Supreme Court Associate Justice wrote a protest to the Commission: “I respectfully submit that if marriage is to be terminable by unilateral action without any judicial determination that the marriage is in effect dead, then the proceeding has no business in a court of law and should be relegated to a ministerial function in the marriage license bureau.”
“There were no empirical studies to support the need for this policy-shift and the inter-disciplinary professionals that were invited to be `advisors’ and `consultants’ on the Project were marginalized or ignored.” “During their law-drafting sessions, the Commissioners even joked about how much of their product resembled Russia’s system of Post Card divorce (See an inside account written by a Russian woman, published in the Atlantic Monthly in 1926 on www.uniformdivorce.org.)
When No Fault was being considered in the state legislatures, virtually no religious leader testified, because they did not know such a momentous change was even being considered. The United States Conference of Catholic Bishops and the National Association of Evangelicals. would certainly have opposed it, for example. When No Fault was considered in Florida, only a few minor changes were made in the Uniform Divorce Project’s proposal. Furthermore, it took only two weeks from the end of their floor debate in 1971 (the same year no-fault car insurance was enacted) to the implementation of the law, even though work was not finished on the national draft of the law. The American Bar Association did not approve it until 1974. No Fault Auto Insurance has been a success, but No Fault Divorce has bombed and needs to be replaced.
Ten Secrets of No Fault Divorce
Judy Parejko, author of “Stolen Vows: The Illusion of No Fault Divorce and the Rise of the American Divorce Industry,” and a contributor to the www.uniformdivorce.comwebsite, notes that few people can even describe what No Fault Divorce really is, or how it works. Ask a lawyer, and what you will hear is that “it’s a “mutual” process that preserves privacy. Or they say it means “Nobody is at fault,” or it “prevents needless conflict.” In truth, however, few very few couples end their marriage by agreement.
In fact, this question must be asked: “What was being purposely concealed about No Fault Divorce when it was being adopted by nearly every state in the 1970s? Ms. Parejko and a colleague, Dr. Michael Ross, President of a Catholic anti-divorce group, “Defending Our Father’s House,” outline Ten Secrets of No Fault Divorce:
1. It is still a `lawsuit’ – one party is suing the other – even though they changed the name of the legal action to `petition.’ The plaintiff was re-named the `petitioner’ and the defendant became the `respondent’ but a `hearing’ is still required – which is a sham.
2. The U.S. Constitution requires that the party filing a lawsuit give a reason a “claim.” However, In No Fault, there is no claim, no `cause of action.’ It’s a lawsuit without any real `grounds.’ The sole legal ground, `irretrievable breakdown,’ is merely symbolic.
3. When a party is sued on any other issue, there are allowable `defenses.’ No Fault does not allow them. That means the defendant always loses. Again, that is unconstitutional. We are guaranteed the right to a defense in a lawsuit).
4. Without the two essential elements of a lawsuit – a `cause’ and a `defense’ – there’s no `case in controversy.’ This means the court process exists only for the sake of appearances – and simply put, is a `fraud.’
5. The judge’s role is `ministerial’ (like a clerk in a state motor vehicle department.). There’s no `judicial discretion’ because the `judgment’ is an `automatic outcome.’ The judge’s involvement is for appearance’s sake – and for enforcement of `state authority’ (ensuring the `automatic outcome’ of the law.)
6. The party who has `unclean hands’ can be the one filing for the lawsuit, and often is. is set aside. The adulterer often is the one filing for divorce, not the innocent spouse.
7. No Fault was deceptively sold as a `mutual agreement’ process – and most people still believe this is how it works: that both people sign an `agreement.’
8. The State is not neutral – it always takes the side of the one filing the divorce lawsuit (the `petitioner.’)
9. No-fault divorce works like the `takings’ doctrine – with the State having the power of eminent domain over the benefits of marriage, such as health insurance, etc., are `taken’ without due process, purportedly for the Public Good.
10. The State’s police powers can be deployed (and commonly are) to ensure the divorce takes place and to enforce the resulting court orders (child support, custody, etc.). A spouse that tries to preserve the marriage can be sanctioned with fines or jail for `dragging their feet.’
11th Secret of No Fault: Adultery & Abuse Aren’t Grounds for Divorce
To the ten Secrets of No Fault, I would add an 11th. In 22 states as Florida, Wisconsin and Michigan, one can no longer sue on grounds of fault – that your spouse committed adultery, was physically abusive, was sent to prison on conviction of a felony, etc. The only grounds on which a divorce can be granted is the “irretrievable breakdown of the marriage. This was another recommendation of the Uniform Divorce proposal, accepted by 22 states. In such states, it will not be enough to reform No Fault Divorce, but it will be necessary to re-establish traditional fault grounds. Those 22 state without traditional grounds for divorce are AZ, CA, CO, DE, DC, FL, HI, IA, KS, KY, MI, MN, MO, MT, NE, NV, NC, OH, OR, WA, WI ,WY.
Impact on Children:
Those who suffer the most from divorce are the innocent – the children. “Children without fathers, or whose parents float in and out of their lives after divorce, are the most precarious little boats in the most turbulent seas,” wrote then First Lady Hillary Rodham Clinton in her book, It Takes A Village (p. 40). “Recent studies demonstrate convincingly that while many adults claim to have benefited from divorce and single parenthood, most children have not. Children living with one parent or in stepfamilies are two to three times more likely to have emotional and behavioral problems as children living in two-parent families…A parent’s remarriage often does not seem to better the odds.”
For example, children of divorce are three times as likely to be expelled from school or to get pregnant as an unwed teenager as a child from an intact home, are five times more likely to live in poverty, are 14 times more likely to by physically abused, and are two to 12 times as apt to be incarcerated, according to the report of the Heritage Foundation, “The Effects of Divorce on America” by Pat Fagan and Robert Rector. 
One man told Mike McManus of Marriage Savers: “Divorce has been a train wreck in my life. My parents divorced, and my father disappeared afterwards. I did not know what a father or a husband looked like. When I married, we had three children. I admit I had a drinking problem. My wife forced a divorce against my will, and I lost everything – my business, a million dollars in costs to fight for custody of my kids, and she sent me to jail.. This so destroyed our kids that my son became an armed robber and ultimately burned down a house killing two people. My daughter ran off with a boyfriend who flips hamburgers, and is only living with him and my other daughter is now institutionalized.”
Cost of Divorce
A new study, “The Taxpayer Costs of Divorce and Unwed Childbearing,” provided the first rigorous estimates of the cost to taxpayers which it set at least $112 billion a year. The rigorous study was developed by the Institute for American Values, and the Institute for Marriage and Public Policy and the Georgia Family Council and Families Northwest. It includes the public cost of welfare (Temporary Assistance to Needy Families or TANF, Food Stamps, Housing Assistance, Medicaid, State Children’s Health Insurance Program (SCHIP), Child Welfare programs, Women, Infants and Children assistance (WIC), Low Income home energy Assistance, Head Start, School Lunch and Breakfast programs and part of the Justice system costs. It does include federal, state and local costs of these programs, and provides the first assessment of these costs at both national levels and for each state. The study does provide detailed data for all states. It provides evidence based on many studies that “Marriage Reduces Poverty.” This Taxpayer Costs of Divorce study thus provides evidence that could be persuasive with state legislators of the need to reform No Fault Divorce laws which are needlessly destroying many marriages where there is no abuse, adultery or other major faults.
What’s particularly important is that the study documents that by reducing family fragmentation by even 1% would save taxpayers $1.1 billion. State legislators are always looking for ways to reduce the costs of government to taxpayers. Reforming Divorce is one way to do it.
However, the “Taxpayer Cost” of family fragmentation is very conservative in its estimates. It does not count the costs to public schools of providing remedial help for children from broken homes, for example, what’s now alled the No Child Left Behind which is $16 billion. And only 8.7% of the cost of prisons and police are counted, for example, although the report states that 56.4% of inmates are from broken homes. Most importantly, the study unaccountably ignored the $40 billion cost of the Earned Income Tax Credit, three-fourths of which is paid to low income single parents with children. These additional costs perhaps push the total public cost of Divorce and Unwed Childbearing to the $200 billion level. (This figure, of course, does not count the private costs to individuals of attorneys and court costs.)
Public Support For Divorce Reform
Another significant piece of ammunition to Reform Divorce, that will matter to politicians is that according to a TIME/CNN poll, the public agrees by nearly a 2-1 margin, that it should “be harder than it is now for married couples with young children to get a divorce” (61% to 35%). However, when asked what is the main reason for the increase in the number of divorces, 45% said “Marriage not taken seriously by couples,” while only 10% replied, “It is easier to get divorced today.” Actually, the reverse is true. Because the law makes it easy to get divorced, those who are unhappy resort to it with ease. Yet the public clearly believes it is too easy to get divorce.
Those who filed for divorce seem to forget that the vows taken in most weddings are “for better for worse, for richer for poorer, in sickness and in health.” There are times in every marriage that are “worse,” but those times will get better in nine out of ten cases, according to research by Linda Waite at the University of Chicago.“How many unhappy couples turn their marriages around?” asks Dr. Waite and Maggie Gallagher in their book, The Case for Marriage. “The truth is shocking: 86 percent of unhappily married people who stick it out find that, five years later, their marriages are happier, according to an analysis of the National Survey of Families and Households by Linda Waite for this book.” This is evidence that many marriages, which are being forced upon unwilling spouses, are being needlessly destroyed.
No Fault Divorce makes marriages little more binding than cohabitation in terms of permanence. What was willingly entered into by two people can be terminated by either partner without the other’s consent. Many studies document the fact that “No-fault did increase the divorce rate,” writes columnist Maggie Gallagher.There were 639,000 divorces in 1970, but 1,036,000. That’s a 63% increase in divorces in only six years. More than a million couples divorce annually, mostly on No Fault grounds. No Fault has moved from the United States to Europe and other countries. However, because Unilateral Divorce destroys too many marriages, shattering families, the building block of every culture, European couples must live separately for a long time – two years in France, three in Germany. By contrast, most U.S states allow a divorce after living separately for six months or less. Some, like Alabama, require only a month of living apart, or two months in Texas (which no longer even bothers to count the number of divorces granted, like California and Indiana). Such states experience divorce rates that are double that of others, such as Maryland where couples must live apart for a year if the divorce is uncontested, and two years if it is contested. That longer time allows for more reconciliation. Europe’s even longer periods of required separation allows even more time for reconciliation. Result: the divorce rate of France or Germany is half that of the United States.
A Case Study
Dr. Peter Hopkins, 51, a physician, grew up in a poor family in New York City whose parents divorced. His mother went into depression, unable to care for her children. Older children were put into a homeless shelter while Peter and a sister were first put in a Catholic orphanage and later foster care. Somehow, he put himself through college and medical school where he met his future wife. “I came to marriage with a tremendous hope for a lifelong marriage, eager to be a parent,” he recalls.
They did have three children who are now 17, 14 and 10. However, their marriage began to unravel due to communication difficulties about year 10. She also came from a broken family. (Adult children of divorce are more likely to divorce themselves.) The couple tried to save their marriage by going to many pastors and counselors over three years, but got no help. She filed for divorce in 2002, and won custody of the children. It is important to note that Peter did not want the divorce. That desire to remain married is shared by four of five spouses who undergo divorce, researchers assert.
He was so determined to “remain in the lives of my children,” that he spent $250,000 in attorney’s fees to get that access. He had to liquidate his retirement to do so, taking a 50% cut due to taxes, making his real cost nearly $500,000. And that does not count the costs of various experts paid to testify in court. The result is that he sees the kids for 48 hours every other weekend, plus one weekday each week, alternate holidays and for four weeks in the summer. He would rather have saved his marriage, but the law makes that impossible. Every person who files for divorce gets it. She now flies regularly with the kids to visit a boyfriend for a weekend.
Barbara Dafoe Whitehead & David Popenoe, “The State of Our Unions: The Social Health of Marriage in America 2002,” The National Marriage Project, Rutgers University, page 2.
In 2006 the Gallup Poll reported that 63 percent of Americans said they are “a member of a church or synagogue,” and 40 percent attended services “in the last seven days.”
A Gallup study, “Religion in Europe: Trust Not Filling the Pews,” reports that “weekly attendance at religious services in below 10 percent in France and Germany, 3-5 percent in Denmark, Finland & Sweden. Data gathered by Heritage Foundation in 2002 based on UN reports, states that when the U.S. divorce rate was 4.1 divorces per 1,000 in a year, it was 2.3 in Canada, .79 in China, 2.4 in Austria, 1.2 in Egypt, 2.0 in France, 2.3 in Germany, 0.6 in Italy, 2.1 in South Korea, 1.1 in Poland. Only Russia and Belarus were temporarily higher after the collapse of the Soviet Union, at 4.3 percent.
Since 1970, there have been 84 million marriages and 42 million divorces, according to data from the National Center for Health Statistics (NCHS), calculated by Mike McManus (See note 6.).
Peter D. Hart Research Associates, July, 2003 poll.
Calculations by Michael J. McManus, based on NCHS data. Because several states such as California, Indiana, Louisiana, and in 2007, Texas – stopped publishing numbers of divorces, NCHS no longer gives hard estimates on the number of divorces. Instead, it publishes an estimated divorce rate, which was 3.6 per 1,000 people in 2005. I got the population for each year and made a hard estimate. One wonders why the U.S. stopped making small grants to cover divorce data collection to the states, while continuing to provide funds for unemployment calculations, for example.
Mike & Harriet McManus, Living Together: Myths, Risks & Answers, Howard Books, a Division of Simon & Schuster, New York, (2008).
The National Marriage Project at Rutgers University cites Census data that in 1970 there were 76.5 marriages per 1,000 women. By 2005 that fell to only 38.7 marriages/1000. That is a 50.7% plunge.
Larry Bumpass, James Sweet and Andrew Cherlin, “The Role of Cohabitation in Declining Rates of Marriage,” Journal of Marriage and the Family 53, (November, 1991): 913-27
Frank Furstenberg and Andrew Cherlin, Divided Families ( Cambridge, MA: Harvard University Press, 1991, p. 22.
. James Sunderland married Bronte Sunderland in 1962, seven years before Reagan signed the first No Fault law. He argued his marriage was reconcilable, admitted “deep sorrow” for his failure in the marriage, expressed an “abiding and deep love” for his wife and reaffirmed his commitment to the original vows. He appealed his divorce to the California Supreme Court and then to the U.S. Supreme Court, and quoted Chief Justice John Marshall the 1819 decision, but the state and U.S. Supreme Courts refused to hear the case.
“ULC to Meet – for 100th Time,” the National Law Journal, July 29, 1991. p. 3
Excerpt from a letter to the Commissioners on Sept. 26, 1969 by Hon. Louis H. Burke, Associate Justice of the California State Supreme Court.
Ibid. The full text of the Atlantic Monthly article can be found on www/uniformdivorce.com.
Hillary R. Clinton, It Takes a Village, and Other Lessons Children Teach Us, Simon & Schuster, 1996, pp. 39-40.]
Pat Fagan and Robert Rector, “the Effects of Divorce on America,” Heritage Foundation Backgrounder.
“The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States,” a paper by the Institute for American Values, Institute for Marriage and Public Policy, Georgia Family Council, Families Northwest, April 15, 2008.
Linda Waite and Maggie Gallagher, The Case for Marriage: Why Married People Are Happier, Healthier and Better Off Financially ( New York) Doubleday, 2000, p. 13.
Ibid., page 148.
Maggie Gallagher and Prof. Douglas Allen, “Does Divorce Law Affect the Divorce Rate? A Review of Empirical Research 1995-2006.”