September 15, 2012 Marriage

STRENGTHENING MARRIAGE

September 15, 2012

Legislators and friends,

The best way to reduce divorce rates and to encourage commitment back into marriage is to bring back "fault divorce" laws. Cheating on your wife or husband is a "breach of contract" and the guilty party should be held liable and forced to pay damages.  No-fault divorce also gutted marriage of its legal power to bind husband and wife, allowing one spouse to dissolve a marriage for any reason — or for no reason at all. Neither court nor judge can mitigate the pain and suffering of divorce for a family. Contrary to popular opinion, few people enter into a divorce lightheartedly.

The promise of sexual exclusivity (fidelity) is a very important part of marriage. This needs to be clearly written into all civil marriage contracts and enforced by the divorce courts. Marriage is about rights and responsibilities to each other. Modern society has taken all of the responsibility out of marriage. If people were held accountable for their actions, we would see much fewer divorces.

The liberalization of divorce that is no-fault reflects cultural changes. The law caught up with society in the 1960s. The rise of no-fault divorce can be traced to the recognition that requiring people to state the traditional grounds for divorce often led to fraud or lying; that rehearsed perjury diminished respect for the law; that society had no compelling interest making a couple stay together if the marriage has broken down and the two of them don’t want to stay together.

From 1960 to 1980, the divorce rate more than doubled — from 9.2 divorces per 1,000 married women to 22.6 divorces per 1,000 married women. This meant that while less than 20% of couples who married in 1950 ended up divorced, about 50% of couples who married in 1970 did. And approximately half of the children born to married parents in the 1970s saw their parent’s part, compared to only about 11% of those born in the 1950s.

In the years since 1980, however, these trends have not continued on straight upward paths, and the story of divorce has grown increasingly complicated. In the case of divorce, as in so many others, the worst consequences of the social revolution of the 1960s and '70s are now felt disproportionately by the poor and less educated, while the wealthy elites who set off these transformations in the first place have managed to reclaim somewhat healthier and more stable habits of married life. This imbalance leaves our cultural and political elites less well attuned to the magnitude of social dysfunction in much of American society, and leaves the most vulnerable Americans — especially children living in poor and working-class communities — even worse off than they would otherwise be.

But what about the children? In the older, institutional model of marriage, parents were supposed to stick together for their sake. The view was that divorce could leave an indelible emotional scar on children, and would also harm their social and economic future. Yet under the new soul-mate model of marriage, divorce could be an opportunity for growth not only for adults but also for their offspring. The view was that divorce could protect the emotional welfare of children by allowing their parents to leave marriages in which they felt unhappy. In 1962, as Whitehead points out in her book The Divorce Culture, about half of American women agreed with the idea that "when there are children in the family parents should stay together even if they don't get along." By 1977, only 20% of American women held this view.

When a couple marry with the hope of life together and the marriage fails, easy divorce is an oxymoron. Contrary to popular opinion, few people enter into a divorce lightheartedly. A divorce is wrenching, and for most people going through one is, under the best conditions, an experience in mental and emotional anguish and sadness. Even when divorce is the only answer, it is painful and dislocating, and when it becomes a war, the idea of victory and winning is an illusion. The belief that "divorce breeds divorce," meaning that the easy availability of divorce makes other couples more likely to divorce, has grown in its foundation. Divorce has become contagious.

What is no-fault divorce?

The claims were that, the no-fault divorce helped courts get rid of “cooked-up stories in the court of law”; a spouse now no longer needs to prove that their partner had faulted in the marriage. Issues concerning “irreconcilable differences” and “incompatibility” are now reasons strong enough to get a divorce under no-fault divorce laws. No-fault divorce helps one spouse get rid of a burdensome relationship even if there has been no infidelity, desertion, brutality, abandonment or any related crime. No-fault divorce strips out a legal recognition of blame. The injured or rejected partner, perhaps the one who does not want the marriage to end, has little financial and emotion recourse. Moralists argue that no-fault divorce makes it too easy to get a divorce, which get you in to the court system faster and easier..

            Similar claims were made that no-fault divorce laws would offer or ensure a speedy divorce and this would ultimately be less expensive compared to fault divorce, of course they didn’t see the lawyers and Judges using this process to exaggerate or lengthen the process with Parent Coordinators or Case Management evolving. Everybody has heard of a “Pandora's Box”? This is an artifact in Greek mythology; the "box" was actually a large jar which contained all the evils of the world. Today, to open a Pandora's box means to create evil that cannot be undone – Parent Coordinators and Case Managers.

This was to displace some of the volatility of what makes negotiations so explosive; that a couple would negotiate the end of the marriage without assigning blame or fault, wow did they miss that one! It is always advantageous to avoid a divorce trial, having agreed to end their marriage without a finding of fault and have successfully negotiated the terms and conditions of support and custody and the division and distribution of the marital estate.

            The reality is the Domestic Courts have had an explosion in increased numbers and states are paying a toll larger than they ever dreamed in state agencies (child support, court trustee’s, etc.) and then the untold story of the negative impact on the children as the courts and the state attempt to lay claim to working in the “child’s best interest” knowing there is nothing they can do to make the situation more positive. We need the state out of this process and we need to take the money out of divorce.

            Many scholars, therapists, lawyers, Judges and journalists served as enablers of this kind of thinking. These elites argued that children were resilient in the face of divorce; that children could easily find male role models to replace absent fathers; and that children would be happier if their parents were able to leave unhappy marriages. In 1979, one prominent scholar wrote in the Journal of Divorce that divorce even held "growth potential" for mothers, as they could enjoy "increased personal autonomy, a new sense of competence and control, [and the] development of better relationships with [their] children." And in 1974's The Courage to Divorce, social workers Susan Gettleman and Janet Markowitz argued that boys need not be harmed by the absence of their fathers: "When fathers are not available, friends, relatives, teachers and counselors can provide ample opportunity for youngsters to model themselves after a like-sexed adult."

Thirty years later, the myth of the good divorce has not stood up well in the face of sustained social scientific inquiry — especially when one considers the welfare of children exposed to their parents' divorces. Since 1974, about 1 million children per year have seen their parents’ divorce — and children who are exposed to divorce are two to three times more likely than their peers in intact marriages to suffer from serious social or psychological pathologies. In their book Growing Up with a Single Parent: What Hurts, What Helps, sociologists Sara McLanahan and Gary Sandefur found that 31% of adolescents with divorced parents dropped out of high school, compared to 13% of children from intact families. They also concluded that 33% of adolescent girls whose parents divorced became teen mothers, compared to 11% of girls from continuously married families. And McLanahan and her colleagues have found that 11% of boys who come from divorced families end up spending time in prison before the age of 32, compared to 5% of boys who come from intact homes.

Research also indicates that remarriage is no salve for children wounded by divorce. Indeed, as sociologist Andrew Cherlin notes in his important new book, The Marriage-Go-Round, "children whose parents have remarried do not have higher levels of well-being than children in lone-parent families." The reason? Often, the establishment of a step-family results in yet another move for a child, requiring adjustment to a new caretaker and new step-siblings — all of which can be difficult for children, who tend to thrive on stability.

Skeptics confronted with this kind of research often argue that it is unfair to compare children of divorce to children from intact, married households. They contend that it is the “conflict” or “high conflict” that precedes the divorce, rather than the divorce itself, that is likely to be particularly traumatic for children. The problem here is there is no threshold or clear definition for these terms.

More than two-thirds of all parental divorces do not involve such “highly conflicted” marriages. And unfortunately, these are the very divorces that are most likely to be stressful for children. When children see their parents’ divorce because they have simply drifted apart — or because one or both parents have become unhappy or left to pursue another ¬partner — the kids' faith in love, commitment, and marriage is often shattered. In the wake of their parents' divorce, children are also likely to experience a family move, marked declines in their family income, a stressed-out single parent, and substantial periods of paternal absence — all factors that put them at risk. In other words, the clear majority of divorces involving children in America are not in the best interests of the children.

            Even under no-fault divorce, things can turn acrimonious when children are involved. The primary consideration in child custody is the best interests of the child; this may force the couple to take adversarial roles to demonstrate that the other is not as fit to be a parent. Thus even a supposedly non-adversarial approach can quickly pit one spouse against the other.

Disadvantages?

It has been observed that as a result of no-fault divorce laws, there has been a jump in the number of divorces in USA. In a study carried out in 1989 by Justec research in Virginia on the impact of no-fault divorce laws in 38 states of USA, have shown that there has been a 20-25% rise in the number of divorce cases. One of the reasons for the increase is found to be due to the ease with which people can divorce each other as provided by the laws of no-fault divorce. People are increasingly becoming less tolerant to each other and wishing to break up the marriage as the law also permits them to do so! Thus, to say marriage has become a matter of joke and the beauty of the relationship is getting lost!

            Sometimes a spouse contests a divorce for all kinds of reasons, some of which are not in his or her long-term best interest. Divorce is so wrenching an experience that people sometimes do not think clearly. One spouse may want to reconcile, so he or she hopes for a change of heart in the other. Or one spouse, hurt and angry by the other’s rejection, may want to make it difficult. Sometimes, one spouse wants additional time to hide assets that would be distributed. A party may have religious or philosophical objections to ending a marriage.

            When a couple marry with the hope of life together and the marriage fails, easy divorce is an oxymoron. A divorce is wrenching, and for most people going through one is, under the best conditions, an experience in mental and emotional anguish and sadness. Even when divorce is the only answer, it is painful and dislocating, and when it becomes a war, the idea of victory and winning is an illusion. The belief that "divorce breeds divorce," meaning that the easy availability of divorce makes other couples more likely to divorce, seems to have a foundation. Growing up in a two-parent home has its advantages, and thus there may also be advantages to a system which puts up some barriers to divorce, at least among parents.

           

New measures and Laws

There are no magic cures for the growing divorce divide in America. But a few modest policy measures could offer some much-needed help to the problem.

            First, the states should reform their divorce laws. A return to fault-based divorce is certainly going to raise the bar back up but this will become a political matter, but some plausible common-sense reforms could nonetheless inject a measure of sanity into our state and nation's divorce laws. Require married adults to prove any of the traditional grounds for divorce: adultery, physical or mental cruelty, abandonment or desertion, imprisonment, insanity, and drug or alcohol addiction. The benefit of a fault divorce is that, if one spouse is clearly to blame, the other may be entitled to greater benefits in the form of spousal maintenance. Also, a fault divorce allows a couple to avoid any state-mandated waiting period for a no-fault divorce. Spouses who are being divorced against their will, and who have not engaged in egregious misbehavior such as abuse, adultery, or abandonment, should be given preferential treatment by family courts. Such consideration would add a measure of justice to the current divorce process; it would also discourage some divorces, as spouses who would otherwise seek an easy exit might avoid a divorce that would harm them financially or limit their access to their children.

Second, Congress could extend the federal Healthy Marriage Initiative. In 2006, as part of President George W. Bush's marriage initiative, Congress passed legislation allocating $100 million a year for five years to more than 100 programs designed to strengthen marriage and ¬family -relationships in America — especially among low-income couples. As Kathryn Edin of Harvard has noted, many of these programs are equipping poor and working-class couples with the relational skills that their better-educated peers rely upon to sustain their marriages. Many of these programs will be evaluated; the most successful programs serving poor and working-class communities should receive additional funding, and should be used as models for new programs to serve these communities. New ideas — like additional social-marketing campaigns on behalf of marriage, on the model of those undertaken to discourage smoking — should also be explored through the initiative.

Third, the State and the Federal government should expand the child tax credit; incentivize it by the fact that one marriage gets more benefits. Raising children is expensive, and has become increasingly so, given rising college and health-care costs. Yet the real value of tax deductions for children has fallen considerably since the 1960s. To remedy this state of affairs, have proposed expanding the current child tax credit and making it fully refundable against both income and payroll taxes. A reform along those lines would provide a significant measure of financial relief to working-class and middle-class families, and would likely strengthen their increasingly fragile marriages. I would promote the Fair Tax model as it protects the Family Budget and gets government OUT of the Social Engineering business.

Of course, none of these reforms of law and policy alone is likely to exercise a transformative influence on the quality and stability of marriage in America. Such fixes must be accompanied by changes in the wider culture. Parents, churches, schools, public officials, and the entertainment industry will have to do a better job of stressing the merits of a more institutional model of marriage. This will be particularly important for poor and working-class young adults, who are drifting away from marriage the fastest.

This is a tall order, to say the least. But if our society is genuinely interested in protecting and improving the welfare of children — especially children in our nation's most vulnerable communities — we must strengthen marriage and reduce the incidence of divorce in America. The unthinkable alternative is a nation divided more and more by class and marital ¬status, and children doubly disadvantaged by poverty and single parenthood. Surely no one believes that such a state of affairs is in the national interest. Nothing in a fault or no-fault, uncontested divorce, however, speaks to the sadness and sorrow of a family torn apart and NO ONE should profit from such a tragic event.

Besides the efforts in Michigan to eliminate some forms of no-fault divorce, three states have established a second form of marriage, called a covenant marriage, which makes divorce more difficult to obtain. In 1997 Louisiana became the first state to establish covenant marriage, followed by Arizona and Arkansas. Under covenant marriage, the couple agrees to pre-marital counseling and accepts fewer grounds for divorce. (Domestic violence and adultery, for example, are still valid grounds.) Even with these barriers in place though, the couple could still obtain a divorce in another state which does not recognize covenant marriages.

Although the no-fault divorce caught on rapidly in the U.S. in the last 40 years, the efforts by state lawmakers in Michigan, Louisiana, Arizona, and Arkansas to make divorce more difficult to obtain may reflect a growing concern over high divorce rates, and point to a growing trend. No-fault divorce may face increased scrutiny both in Massachusetts and throughout the country.

No more than the comment that when government trumps religion as the provider of organization of the culture the result is the indulgence of self-interest and the art of the deal when it comes to marriage. A model of a business contract that impersonally must be dissolved.

Next week I will put together the Corruption of the Judicial Branch issues! If for some reason you need to find out more on certain subjects please don’t hesitate to call or email me or visit our blog at http://kansasjudicialsystem-casemanagers.blogspot.com/

Chris Brown

browncontract@hotmail.com