No-Fault Divorce: It’s NOT Destroying Marriage

No-Fault Divorce: It’s NOT Destroying Marriage April 25, 2013

Last year, I was talking about gay marriage with a Christian leader whose name you would know. After pushing back on my arguments for a while, he finally shrugged his shoulders and said, “It doesn’t really matter, since no-fault divorce laws have already pretty much gutted marriage in our country.”

I was honestly shocked. Having survived a no-fault divorce (that was nevertheless contentious and exorbitantly expensive), I had never heard someone make this argument before, much less state it as though it were common knowledge. No one that I know of in the Family Court system thinks that no-fault divorce is bad. (And to read how bad a divorce can be, even with no-fault divorce, read this harrowing account of the Worst Divorce EVER.)

Mark Silk has run into a similar argument from a Catholic who is similarly debating same-sex marriage. And Silk handily debunks the argument:

My friend the prolific NCR blogger Michael Sean Winters argues that they should throw in the towel, not because he supports SSM (he doesn’t), but because the marriage war was lost decades ago, when the bishops failed to stand in the way of no-fault divorce.

I can see why such an argument might be something of a balm for ecclesiastical potentates like Archbishop Vigneron of Detroit and Bishop Tobin of Providence, who can barely contain their apoplexy at this threat to civilization as they know it. After all, they weren’t bishops when the no-fault divorce laws went into effect.

Nevertheless, it’s a bad argument and one that teaches the wrong lesson.

It’s a bad argument because no-fault divorce laws had nothing to do with the rise in divorce rates, which began their ascent in the late 1950s. Between 1970 and 1977, nine states adopted no-fault divorce. By 1983, all but two states had. Whereupon divorce rates began to decline.

Read the rest and see the graph: What hath SSM to do with no-fault divorce? | Spiritual Politics.

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  • Simon

    I like this analogy. I think it is a really interesting thought experiment. I think if we imagined straight divorcees as the target of “pro-marriage” legislation, it may help “limited government” conservatives to consider how just how disruptive, discriminatory and paternalistic these anti-gay laws are.

    The analogy would be that back in the 70’s when states started passing no-fault divorce laws, Jerry Falwell and religious conservatives lobbied the federal government to inject itself into state law.

    The Defense of Marriage Act (DOMA) essentially ignores the “full faith and credit” clause of the Constitution, and the states’ autonomy to represent to the Federal government and other states who may is married. (Imagine if instead of limiting states’ rights to issue marriage licenses it started to limit their rights to issue gun, or fishing licenses). It also creates an interstate nightmare by informing other states they also may ignore any other state’s gay marriages (i.e. adoption, custody and divorce decrees may be ineffective when you cross a state line).

    What if we said, the Bible clearly teaches that remarriage (with limited exceptions) is no marriage at all? “These ‘remarriers’ are trying to use the government to force me to say I am okay with their relationship.” “It is adultery.” “God doesn’t recognize these so-called ‘re-marriages,'” Their are “disruptive to the lives of children,” etc.

    Let’s say that back in the 70’s we “defended marriage” by prohibiting the federal government from recognizing any second marriages (or second marriages not arising from death or infidelity (whatever)). Consider the harms that and indignities that divorcees would be subjected to:
    -Even when a second marriage is recognized by liberal “pro-divorce” state, the federal government will refuse to honor that marriage. You can never file joint taxes and essentially pay a de facto divorce tax.

    – Are you the widow of a solider or postal worker? Hopefully your late husband was not on his second marriage, because second wives get zero benefits and pensions.
    – Did your second wife get into a car accident? Hopefully, she had her own health insurance. She didn’t qualify for yours. Only your ex-wife would qualify.
    -If your wife is in critical condition, depending on the hospital and state, you can’t immediately see her or make end of life decisions for her because the majority of Americans think your so called “re-marriage” is unbiblical and degrades the historic definition of marriage (one man and one woman for life.)
    – You do not qualify for Family Medical Leave Act benefits, so you may lose your job because of the time off you are forced to take to care for your wife.
    -Hopefully you get along with your in-laws because they have all the power. When she passes, they decide where and how she will be buried. The home you shared? That belongs to her parents now because you were never really married.
    -If you have children, they may or may not stay with you because in your state they don’t recognize unbiblical marriages such as yours. Your state government need not give weight to the custody decisions of another state. Your children may or may not be considered wards of the state, depending on how the Department of Child Services representative feels about “your kind of relationship.” You might ultimately retain custody, but nothing is sure.

    These scenarios can and do happen to gay families across America.

    I wonder if the same “limited government” conservatives would be willing to consider this kind of government (particularly federal government) intervention if it was directed at straight marriages they found to be unbiblical?

  • Pax

    In the article, Michael Sean Winters is not arguing that no-fault divorce causes higher divorce rates. He’s talking about when the Church’s and the cultures definitions of marriage began to diverge. Even if the change to no-fault divorce was in reaction to already rising divorce rates, it codified the idea that marriage need not be a life-long thing in secular society. This does represent a pretty big break between the Catholic Church’s and the culture’s view of marriage.

    I realize that this isn’t a popular opinion, but I think that divorce ought to be hard. I’m sure that the Family Court system likes it because it makes their lives easier. That doesn’t mean it’s good.

    • Here’s the thing, Pax: divorce IS hard. No law is needed to make it so.
      I learned that as a child watching the affect my aunt & uncle’s divorce had on them and our whole family.
      I learned that as a pastor counseling far-too-many hurting couples.
      And then I learned that personally when I got divorced.

      While I obviously acknowledge that these experiences of mine are not universal experiences, I can say with certainty that I’ve never met anyone for whom divorce was anything but hard. Devastating, really. Even in cases like mine when both of us knew it was for the best, it was still contentious and expensive and awful.

      I will cede that there is probably some tiny percentage of people who divorce on a whim; who find it no big deal. But in my 41+ years on the planet, I’ve never encountered such a person.

      Finally, I would argue that no-fault divorces did not codify “the idea that marriage need not be a life-long thing” – again, as if it were some what-do-I-feel-like-doing-today, whisper-thin whim. Rather, some relationships need to end. Sometimes, such as in the case of abuse, divorce likely even saves lives. But that still doesn’t make them anything other than hard.

      • How about making it harder for the economically-more-productive partner to get a divorce while keeping it easier for the economically-less-productive partner and then expediting the process of settling things?

      • Pax

        I’m not denying that divorce is hard even with no-fault divorce, and I certainly don’t deny that it’s necessary in some circumstances (like in abusive relationships). But in some cases, divorce does need to be made harder. No-fault divorce allows people to act unilaterally and selfishly. I don’t know people who have done it on a whim either, but I have seen people who go to it without really trying to save their marriages (against the wishes of the other spouse and against what would be better for their children). Marriage should be a life-long commitment (good times and bad), and divorce should be a last resort (which it just isn’t for most people).

        • Simon

          Pax, please tell me you vote Republican. It never ceases to amaze me how conservatives (often espousing limited government) can say things like “I don’t know people who have done it” but surely many of my fellow citizen aren’t executing on their marriage vows like I would like them to. So what is Pax’s solution? Lets force couples to ask a complete stranger (who represents the government) to review our worst moments and failings (as told by our soon to be ex-spouse). The stranger will then decide who is “at fault” for the broken marriage or even whether the government has determined a marriage is irreparably broken (because presumably the government is better suited to make this determination than the individuals in the marriage).

          In Pax’s world, this level of government intrusion is warranted because HE does not believe some people (whom he has never met, but are sure exist) don’t understand marriage the way HE and other Christians do.

          Awesome. You think divorce is hard, but the government should come in and make one of the most painful experiences in many people’s life “harder” because “some people” (none that you have ever met) don’t share your level of commitment.

          What an interesting use of State power and government resources.

  • tanyam

    I think C.S. Lewis nailed it in Mere Christianity:

    “Before leaving the question of divorce, I should like to distinguish two things which are very often confused. The Christian conception of marriage is one: the other is the quite different question-how far Christians, if they are voters or Members of Parliament, ought to try to force their views of marriage on the rest of the community by embodying them in the divorce laws. A great many people seem to think that if you are a Christian yourself you should try to make divorce difficult for every one. I do not think that. At least I know I should be very angry if the Mahommedans tried to prevent the rest of us from drinking wine. My own view is that the Churches should frankly recognise that the majority of the British people are not Christians and, therefore, cannot be expected to live Christian lives. There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the Church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not.”

    And then I wonder why Christians would think that punishment is ever the way to go to enforce moral behavior. No thunderbolt hits which makes it tough for us to gossip — Why try to make a legal version of that to sanction some behavior we think best?