June 22, 2010
Reforming No Fault Divorce the New York Way
A conservative running for the Senate
in Virginia wrote to say he appreciated my efforts to save marriages. I
responded by suggesting a campaign theme for him – how to cut taxpayer costs
by reducing Virginia’s divorce rate.
First, I noted that marriages in
Virginia are dropping like a rock, from 62,000 in 2005 to 56,900 in 2008,
with the result that the state’s divorce rate rose from 48% to 52%. Every
divorce costs taxpayers $20,000 for welfare, Medicaid, food stamps, etc.
With 29,700 divorces in 2008, the cost is $594 million, just for 2008’s
What’s the solution? I
suggested he consider the law in New York State, in which both husband and
wife are given a voice on whether there should be a divorce, unless one
spouse proves the other guilty of a major fault, such as adultery or abuse.
In fact, New York is the last state without No Fault Divorce, though the New
York Senate recently passed a bill adopting No Fault. The Assembly has not
yet caved in.
It should stand firm, because New
York’s law has resulted in what is nearly America’s lowest divorce rate.
With 135,000 marriages in 2008, New York had only 52,300 divorces, for a
divorce rate of 38.7%.
If Virginia reformed its No Fault
Divorce law, and adopted New York’s requirement of Mutual Consent, its
divorce rate should drop to New York’s level. That translates into 22,000
divorces instead of 29,700, saving taxpayers $154 million (7,700 X $20,000).
What’s wrong with No Fault Divorce, now
in all other 49 states? It should be called Unilateral Divorce, because the
spouse trying to preserve the marriage – loses every time. The only issues
are terms of the divorce such as custody and property division.
No Fault is unconstitutional.
Both the 5th and 14th Amendments guarantee that “no
person be deprived of life, liberty or property without the due process of
law.” Yet how can there be “due process,” if person trying to preserve the
marriage always loses?
In fact, New York’s law is a model to
reform existing No Fault Laws! Bills were introduced this year in Michigan,
Oklahoma and Missouri to enact New York’s law. None passed because the
committees considering the reform typically are composed of attorneys
uninterested in a reform that would reduce divorce litigation!
Why shouldn’t both spouses
have a voice on divorce, if there is no adultery, for example? Marriage was
entered into willingly by two people, and shouldn’t be terminated unless
both agree. “By giving the spouse who wants to save the marriage an equal
voice with an unhappy mate, many marriages could be restored, perhaps saving
most of them,” says Catholic Bishop Gerald Gettelfinger.
He’s right. In New York many
couples were able to work out their differences, and build a lifelong
marriage. That’s why the state’s divorce rate is so low.
In fact, 22 states have gone beyond
Unilateral Divorce to eliminate adultery, abandonment, abuse, etc, as a
grounds for divorce! Imagine not being able to sue for divorce on grounds
your spouse abandoned you, and is cohabiting with a partner! Let’s restore
fault grounds in those states. And in such cases, I believe the guilty party
should get no more than 25% of the estate. Today the split usually is
To put it differently, the law should
penalize marital misconduct, not reward it. It should encourage marriage
preservation, not its destruction, promoted by No Fault. Need proof?
From 1969 when California’s then Gov.
Ronald Reagan signed the first No Fault law, until 1975, when most states
passed copycat laws, the number of divorces shot up from 639,000 to
1,036,000. If New York passes No Fault it can expect a similar radical
escalation of divorces.
That would be tragic. Why? A divorced
man will live 10 years less than a married man, a woman, four years less. On
average, each divorce involves one child. A child of divorce is three times
as likely as one from an intact home to be expelled from school or to become
pregnant as a teenager, six times as apt to grow up in poverty or to commit
suicide, and is three times more likely to end up in jail by age 30.
In fact, one result of New
York’s Mutual Consent law, with its low divorce rate is that New Yorkers
live longer than those in almost every other state! Remember married
couples live four to ten years longer.
In New York more couples work
out their differences. Why not in every other state?
Mike McManus is President of Marriage Savers, a
non-profit that has helped the clergy of 229 cities adopt Community Marriage
Policies that have reduced divorce rates, saving 100,000 marriages from
divorce. He is author of How To Cut America’s Divorce Rate in Half.