January 12, 2002
The Reform of No-Fault Divorce?
CONCORD, N.H. - ''Staying together for the
sake of the children could become more than just a noble-minded
resolution in the months to come. It could become law. No-fault divorces
would no longer be permissible for couples with minor children under a
bill discussed before the House Child and Family Law Committee
Thus began a Page 1 ''Concord Monitor'' story
Wednesday. The sponsor of HB1301, freshman Rep. Gary Hopper, says, ''I'm
pragmatic as a machinist. If something is not working, you go back and
try again.'' He told the committee, ''In 30 years the divorce rate has
doubled. It has exacerbated the situation, not improved it. If we do not
do something, we will have to keep building more jails.''
As a Republican, he pointedly quoted a
Democrat, Sen. Hillary Clinton: ''I think getting a divorce should be
much harder when children are involved. Now it's too easy.''
Before California passed the first no-fault
law in 1969, marriage was a contract that could not be dissolved
unilaterally by one partner. The partner wanting a divorce had to prove
the spouse was at ''fault'' for destroying the contract by adultery,
desertion or conviction of a felony.
No-fault should be called unilateral divorce.
It allows either spouse to declare their differences were
''irreconcilable,'' and walk away. Courts ignored partners wanting
No-fault ''destroyed the religious roots, the
moral structure of marriage...Traditional legal marriage was grounded in
the Christian conception of marriage as a sacrament, a holy union
between a man and a woman, a commitment to join together for life,''
wrote Lenora Weitzman in ''The Divorce Revolution.''
''When the new law abolished the concept of
fault, it also eliminated the framework of guilt, innocence and
interpersonal justice that had structured court decisions in divorce
Hopper argued that ''People who could have
worked it out, are bailing out. By changing this law, we will have
people becoming more thoughtful and getting help.''
An unusual ally helped Hopper: Graham
Chynoweth, a prominent divorce lawyer. He wrote radio spots urging
public support. He testified, ''It is easier to get a divorce than to
discharge an employee for cause. One spouse declares the marriage is
over and it is. Children have no say at all.''
Why did he do so? As a divorce attorney, he
has seen up close the ''spiritual, financial and physical toll that
often can not be regained.'' He confesses that in his own divorce,
though amicable, ''I've seen the results in my children. My father's
Chynoweth asked me to testify. I said children
of divorce suffer the most, citing the landmark book by Judith
Wallerstein, ''The Unexpected Legacy of Divorce.'' She interviewed 60
families at the time of divorce, then 5, 10 and 25 years later.
Children, then aged 2-18, now 27-43, say angrily, ''The day my parents
divorced, is the day my childhood ended.''
Their new world was ''far less reliable, a
more dangerous place because the closest relationships in their lives
can no longer be expected to hold firm,'' she wrote. Children of divorce
are more aggressive than those in intact homes, suffer more depression,
have more learning difficulties, are more promiscuous, bear more
children out-of-wedlock, are less likely to marry and more likely to
divorce. And they are 12 times more likely to be incarcerated, and 14
times more likely to be physically abused than those in intact homes.
A divorced former Baptist pastor sadly
testified that ''My children meet all the statistical norms. My
22-year-old daughter has a 3-year-old son out-of-wedlock. My 18-year-old
has an 18-month old and dropped out of high school twice and is on
A legal aid attorney said the reform of
no-fault would ''create more mudslinging. People who want a divorce will
find a way to do it by attacking the reputation of the other person.''
Has unilateral divorce even reduced
mudslinging? Not visibly.
A more important issue: would the elimination
of no-fault trap people in bad marriages? I said no. First, 60,000
couples on the brink of divorce have attended a weekend retreat called
Retrouvaille (800 470-2230), and saved four of five marriages. Second,
churches have trained ''back-from-the-brink'' couples to tell their
stories of recovery to those in crisis, inspiring 90 percent to rebuild
Finally, Linda Waite of the University of
Chicago reports 90 percent of very unhappy couples, if they persevere,
five years later say their marriage is very good or terrific.
Couples must simply stick to their vows to
remain together ''for better for worse, for richer for poorer, in
sickness and in health, to love and to cherish, till death us do
Copyright 2001 Michael J. McManus.