January 12, 2002
Column #1063

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 yesterday.''

     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 reconciliation.

     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 cases.''

     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 heart knows.''

     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 public assistance.''

     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 their marriages. 

     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 part.'' 

Copyright 2001 Michael J. McManus.