June 22, 2010

Column # 1,504a

Reforming No Fault Divorce the New York Way

By Mike McManus

                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 divorces.

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 5^th and 14^th 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 50-50. 

                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.