December 14 , 2002
Column #1,111

Mutual Consent Not No-Fault Divorce 

     My heart grieves for a million kids who will have a devastating Christmas because their parents divorced this year. Hundreds of studies show consequences.

     "Daddy left Mom. He doesn't love me," the child says. Result: children of divorce are twice as likely as those from intact parents to drop out of school, three times as apt to get pregnant as teenagers, six times as likely to be in poverty, 12 times more likely to be incarcerated.

     When the child enters adulthood, "the unexpected legacy of divorce" hits according to Dr. Judith Wallerstein. Two-thirds are unable to form lasting bonds with someone of the opposite sex. She tracked 100 children of 60 divorces for 25 years. Only 60 married of whom 24 divorced.

     A big part of the problem is invisible. The law itself permits no-fault or unilateral divorce, forced by one spouse on another. In her book, "Stolen Vows," Judy Parejko reports judges ask each husband and wife, "Do you think this marriage is irretrievably broken?" If the answer is "No" from just one of them, "the judge must rule on the matter and force the divorce."

     "Marriage is a promise we make - to love, honor and take care of each other for the rest of our days," she writes "Courts have stolen peoples' ability to make promises to each other."

     Billy Miller, married 29 years, came home for lunch with his wife, Shelia, (stet) to find that she, the children and much of the furniture had been removed. "I nearly fell on my face. It nearly destroyed me," he recalls. In a letter she said she was filing for divorce. 

     Shelia then married a man. It lasted only four months. After two years of hurting financially, she asked Billy for help. Hoping to reconcile, he bought her weekly groceries, at $700 a month, for three years - until she married another man. 

     Billy asserts no-fault is unconstitutional: "Louisiana denied me `due process of law' promised in the 5th Amendment to the Constitution. The judge's decision is mandated by state law. Before the court convenes, it is a done deal. Can't appeal. 

     "No voice. No choice."

    Before no-fault divorce swept the land in the 1970s, divorces could be granted only if one  person proved the other was at fault, due to adultery, abuse or desertion. As a practical matter, this gave the unwilling spouse a voice, grounds for negotiation. A husband asks for a divorce. His wife replies, "No. I love you as do the kids." He'd acknowledge he fell in love with his secretary. 

     "I forgive you for your adultery." He might threaten to leave and live with her. "But I have poured 20 years into you and the children. I could never earn enough now to support them."  He might then offer her the house and alimony in addition to child support.

     Some equity would be achieved. Not so today with no-fault. No negotiation occurs. Four of five divorces are unilateral. The one leaving can take half the assets even if guilty of adultery.

     Allen Parkman of the University of New Mexico, a lawyer and an economist, suggests a major reform in his book, "Good Intentions Gone Awry:"

1. Permit no-fault divorce early in marriage, before children, when costs are low.
   
2. Require "mutual consent" if the couple has children. Parkman says that "would encourage spouses to make sacrifices that benefit the marriage," such giving up a career to care for children. There would be fewer divorces for trivial reasons. And if there is a divorce, mutual consent would be more equitable. What was begun together, should end together. 

   A divorce should not be finalized until a couple lives apart for a year. Maryland has such a law today. Consequently, its divorce rate is the second lowest in America. Why? A year allows time for reconciliation. Further, courts should tell those filing for divorce of successful reconciliation programs. Retrouvaille saves four of five marriages in a weekend retreat. PAIRS saves over half with skill training. "Choosing Wisely" is a video series that saves many.
   

3. Fault grounds remain for genuine abuse of spouse or children, adultery or desertion.

     N.M. State Senator Mark Boitano will introduce a such a bill. "Unilateral no-fault denies due process to the non-consenting spouse. Mutual consent should be the grounds to dissolve a marriage." Texas Rep. Charlie Howard adds, "I believe people should be required to negotiate a divorce. There should be a cooling off period, to consider the impact of divorce on each other and the effect on children."

     Such state legislators could give hundreds of thousands of children a well-deserved Christmas gift next year - a lasting marriage, rather than divorce.