John Bingham at the Telegraph writes:
Almost six out of 10 people in Britain believe that there are not enough legal hurdles to deter couples from rushing into divorce, according to polling on attitudes to marriage and separation.
The study was conducted ahead of official figures due to be released on Thursday by the Office for National Statistics which are expected to show high divorce rates after the longest period of economic hardship since the Second World War. more
Categories: Marriage
1. That’s just like Americans who think their congressman is good but hate the rest.
2. How’s that “recession strengthens marriage” theory holding up? http://familyinequality.wordpress.com/2011/06/06/distorting-data-on-divorce-at-the-national-marriage-project/. Wouldn’t it be a sign of good character to openly re-evaluate those reports?
doesn’t seem to make sense to me. the government didn’t force you to get divorced. you regret your decision that’s not their fault. It’s not the government’s job to save us from ourselves.
I found this link noteworthy:
http://www.telegraph.co.uk/women/9767686/Unmarried-mothers-who-give-up-careers-facing-midlife-financial-crisis-lawyers-warn.html
@Philip Cohen and ki sarita – If you have the ability to unilaterally divorce someone without cause, it could be that the divorced people who think divorce is too easy didn’t want the divorce. If one partner can insist on a divorce whether or not the other one wants it, it wouldn’t be so strange.
Although I would be interested in seeing someone study whether there is a disconnect between people who think that other people’s divorces were too easy, but their own and their friends’ divorces was needed.
ki sarita said “the government didn’t force you to get divorced”, but certainly my government did force me to get divorced against my will, and I’m part of a very large minority. if 80% of all divorces are unilateral, that means 40% of divorced people were forced to get divorced by the government. Not to mention the children who were forced to be in divorced families by the government against their will.. The most common reason for divorce is infidelity,and current laws make it easy and profitable for one spouse to divorce their current husband and wife in order to upgrade to somebody who is younger or wealthier.
(but certainly my government did force me to get divorced against my will)
But you could also say that the government didn’t force your wife to stay married against her will. I’m not sure why you think forcing someone to stay married to you is a good idea?
(Not to mention the children who were forced to be in divorced families by the government against their will)
How much power do you want your children to have in your life, power exercised by government? Should the government support them in their objections to your job? Should the government enforce their objections to moving house? Where they go to school? Their bedtime?
Mont D Law, I agree completely — sex slavery is wrong. Anybody should be free to leave whenever they like. But we weren’t talking about sex slavery, we were talking about divorce, which is a lawsuit against a spouse to seize their property and their children. It’s a little different from most lawsuits in that the plaintiff always wins, breach of contract is encouraged rather than discouraged, and there is no burden of proof, but still it is a nasty lawsuit conducted in courts often with lawyers for purpose of financial gain. This is what is far too easy and what the government should be discouraging rather than encouraging for the good of society. My objection is not that the government didn’t force my wife to stay, but that it forced me to pay lots of money to my wife (and her boyfriend), forced me to pay lots of money to a lawyer to keep a share of custody of my children, and involved me in supporting its huge “family law” bureaucracy against my will, though there was no fault against me.
The government also forces children to leave the homes that they grew up in — often against their wills and against their best interests — often for no reason better than one parent wanting to marry the person that they had an affair with. Yes, I do think that children’s preferences should carry some weight in custody judgements, depending on the circumstances and the ages of the children. Also, the fault for the divorce should have some influence on the custody and property settlement..
The role of government should be to deter behaviors which harm society. Many studies show the value of raising children in two parent households. Of course some marriages such as abusive ones should be ended, but married parents should be encouraged to work on their marriages rather than give up whenever possible. Support of father’s rights would help to deter divorce, which is most often initiated unilaterally by the mother. So would consideration of fault in property settlements or alimony. Child support should be for really supporting children, not a big financial incentive for the divorce plaintiffs.
The website DivorceResistance.info has more about this.
[we were talking about divorce, which is a lawsuit against a spouse to seize their property and their children.]
Sadly, no. you apparently went through a bitter divorce, so it may seem that way to you, but the truth is only 10% of divorces are high conflict. The other 90% are prosaic.
[Many studies show the value of raising children in two parent households.]
This is true only if the household is low-conflict. Forcing some one to stay married doesn’t seem likely to produce that.
Again, I’m sorry you and your wife couldn’t sort your lives out in a way that didn’t destroy your children. But I’m not sure how forcing her to stay married to you would have made that better. What changes do you think would have preserved your marriage?
“the truth is only 10% of divorces are high conflict. The other 90% are prosaic.” — All divorces are lawsuits which are intended for the plaintiff to get property from the defendant in the form of a divorce settlement, alimony, or child support. Divorce should not be confused with just leaving a relationship, as that common argument of divorce advocates does. Yes, some are settled out of court, perhaps with mediators, but they are always legal actions and 80% of them are unilateral.
“This is true only if the household is low-conflict” —
In the first place, studies such as Elizabeth’s and also Judith Wallersteins show that children do better with two parents except in very high conflict households.
Moreover, you are confusing low-conflict marriages with what you call low-conflict divorces — i.e. out-of-court settlements where one side gives up without much of a legal battle. Divorce advocates think that if the mother and father don’t get along, then a divorce somehow will make everything right. But in fact the unilateral divorce is likely to become a great source of conflict between the two parents. The conflict caused by the divorce process creates tensions between the two parents and will make the child-rearing far more difficult than it would have been if the plaintiff had stayed in an average marriage and tried to work out their differences. My 24 year marriage was low conflict and peaceful and the kids were fine — it was just the divorce proceedings that were high conflict and expensive. My kids are still fine, just that their college savings are gone now due to our government’s policies of easy, no-fault divorce.
Again, the issue was not forcing my wife to stay in our home against her will — it was the government providing strong financial incentives for her to rush into divorce rather making an attempt to recover the marriage.
@Diane M., yes, that exists in lots of things other than just divorce; fundamental attribution error and actor-observer bias. My divorce happened because of things I couldn’t control, but your divorce happened because you just lacked the stick-to-it-iveness to keep a marriage intact, etc.
https://en.wikipedia.org/wiki/Fundamental_attribution_error
@DivorcedDad, I find your phrasing interesting in that you portray it as one spouse seizing the property of the other – as if marriage were not a joint economic enterprise. That said, at least in the US, you are not correct about what a divorce is; yes, it is a lawsuit, but it is not a lawsuit for damages. The relief sought by the lawsuit is the dissolution of the marriage.
mythago,
I concede this point — that the primary purpose of a divorce filing is the dissolution of the marriage. Financial gains by the plaintiff via property settlements, alimony, and child support are incidental and apply in some cases more than others. But still, we do agree at least that it is a lawsuit involving a plaintiff and a defendant, and quite a different matter than just leaving a relationship. Any discussion of public policy concerning divorce needs to make the critical distinction between the divorce plaintiff and the divorce defendant, keeping in mind that the vast majority of divorces are unilateral. Statements such as “the government didn’t force you to get divorced” are incorrect because it considers only the plaintiff and ignores the defendant.
Exactly. Make divorce harder to get, and even more people will forego marriage to begin with.
@DivorcedDad, probably the vast majority of breakups in non-married relationships are also “unilateral”. Before ‘no-fault’ divorce, the plaintiff in a divorce would be accusing the defendant of having done something so terrible (adultery, severe abuse) that the defendant was the one responsible for destroying the marriage. Divorce is still a lawsuit, but ‘no-fault’ means the plaintiff is not really accusing the defendant of wrongdoing anymore.
@mythago – Yes, but we can’t assume that this must be a case of participant bias, just because the bias exists. In particular, with this issue we have the very real possibility (as with DivorcedDad) that some divorced people are saying divorce is too easy because their partner divorced them.
@LaLubu – “‘But still, we do agree at least that it is a lawsuit involving a plaintiff and a defendant, and quite a different matter than just leaving a relationship.’
Exactly. Make divorce harder to get, and even more people will forego marriage to begin with.”
I think that puts us in an impossible position. Having people skip marriage is a problem, but if we dilute marriage to the point where it doesn’t mean anything more than leaving your boyfriend, then we’ve lost the benefits of marriage. Marriage leads to better outcomes for kids and adults because it is a long-term commitment and you can make long-term plans together.
I don’t feel I have a great solution to the unilateral divorce problem. I think that our society has definitely made a choice here, as DivorcedDad points out: If you want a divorce, you can have it, whether or not the other person wants it.
Unlike other forms of contracts, the fact that you want to break the contract doesn’t affect the outcome. I think that’s fairly unusual. If, for example, you contracted to write three books for a publishing company and then you decided you didn’t want to work for them after the first one, you would have to show that they had failed in their responsibilities in some way (not promoting your book or paying you on time). If they hadn’t, you would probably face some kind of choice between writing the books for them or paying some kind of penalty. You might be able to get away with never writing again, but if you write the book and publish it with someone else, you’re in trouble. And you might have to pay back an advance even if you never write again.
Marriage makes things complicated because unlike any other contract I know of, it’s about love, too.
In any case, the best solution I can come up with is to suggest that when one partner doesn’t want the divorce, the divorce should take longer and both partners should have to go to some form of counseling or classes.
I also think that when people are having affairs, their brains are fried. Just as we would advice a young woman not to abandon her college education and run off to marry the lead singer in the band, I think we should advice people to wait a while before changing marriage partners. If you started with love and you don’t have any huge major problems, you might be able to have a good marriage again.
We might not want the government to forbid cheaters to leave for their affair partners, but we could use social pressure.
@Diane M: you’ve said this before about contracts, and you’re still wrong.
First, there’s a difference between BREAKING the contractual agreement, and ENDING the agreement under terms in the contract that specifically permit such a thing. (Think about a residential lease where either the tenant or landlord can end the rental agreement on 30 days’ written notice; that’s different than the landlord unexpectedly changing the locks.) Contracts often have clauses about what happens if one person fails to keep up their end of the bargain, too; you return the advance, you pay liquidated damages, you forfeit the title to the car, etc.
Second, as you acknowledge, marriage isn’t simply “a contract”, like a book deal.
@Diane M, re bias, I’m not sure what you’re trying to say. It’s a common fallacy to assume I have good reasons for doing X but when other people do X their reasons are different. The argument ‘divorce is too easy because my spouse divorced me’ is, in effect, saying ‘s/he isn’t allowed to leave me unless I say so’. I think the problem here is obvious.
Locking people into marriage by making divorce a more difficult, longer-term process with a great deal of oversight from outsiders who were not intrinsic to the marriage (government officials, therapists, etc.) isn’t going to solve that problem. People will merely move on with their lives while still being “married”—marriage would become a legal technicality that would not necessarily mean anything in terms of a relationship.
If marriage is to mean anything at all, it ought to mean a reciprocal partnership of two people. When one person is pursuing a divorce, that person is in effect saying “this marriage is over. I cannot make a relationship work with this other person.”
Comparing marriage to other legal contracts isn’t quite accurate. Unlike other legal contracts, the issues of most import to a married couple are unwritten and unenforceable. It isn’t like an author with a contract to produce x number of books. People who seek divorce are seeking it because they see their existing marital contract as already broken—the legal marriage is still intact, but the salient (unwritten, unenforceable) conditions of the marriage have already been broken. Divorce is merely a legal acknowledgement of what already exists in reality. This is a disagreement between form and function. We, as a society, have concluded that it is best to prioritize function over form.
If you want to prioritize form, the first thing that needs to be done is to make marriage contracts detailed, written contracts, with no ambiguities or assumptions. Have each couple spell out exactly what conditions they expect from their partner, and exactly what conditions they expect to provide in return. Each half of the couple would be required to define their terms.
La Lubu where’s your evidence that divorce requirements are off putting people from getting married? Most people I know aren’t really thinking about divorce at the time that they marry.
@LaLubu – “People who seek divorce are seeking it because they see their existing marital contract as already broken—the legal marriage is still intact, but the salient (unwritten, unenforceable) conditions of the marriage have already been broken. ”
What about someone who is seeking a divorce because he or she is having an affair and wants to be with the outside person?
What about people who say they want to leave a marriage because they just don’t feel the love anymore?
What if the other partner feels that they have kept the contract? What if, in fact, they have kept it?
Your definition still fits what I’m saying – our system supports the person who wants to leave over the person who wants to keep the marriage. The person who wants to leave can define the essential, unwritten terms of the contract to be anything they want. They don’t have to prove that the other person had done or not done anything. They don’t have to give the other person a chance to try to meet the terms of the contract.
This wouldn’t matter if marriage really were just a couple of people dating and in love. But marriage is about making long-term plans together, raising children, sharing wealth, etc. You can’t just undo those things without hurting people and that’s where the unfairness comes in.
kisarita, I think there’s plenty of evidence that cohabitation serves as a trial marriage period; a form of “last chance” gatekeeping before marriage in order to prevent getting married to a partner that one would inevitably divorce. Even the cheapest no-fault divorce is more expensive in both money and time than merely breaking up. I think it’s safe to say that if the law were changed to require a minimum waiting period of two years prior to divorce, along with mandatory (expensive) sessions with a marriage counselor prior to divorce, more people would simply choose cohabitation instead of marriage.
It’s not that divorce requirements are too onerous now. It’s that they could become too onerous in the future. People who have been in a bad relationship (whether or not they have been previously married) do think about the possibility of divorce prior to marriage.
@mythago – Now I see what you’re saying. I thought you were referring to the kind of bias where you believe that your divorce was justified, but the people down the street didn’t try hard enough.
I think when you’re in the marriage it’s a different situation. You naturally think you’re right and your spouse is wrong, but you actually have some grounds for this. You know what you did or didn’t do.
I think it’s perfectly fair for someone who didn’t want a divorce but was divorced by their spouse to think that divorce should be harder to get.
I understand that. But realistically, a marriage with only one invested person is not a marriage.
Right now, there is no way to determine whether or not one person or another has upheld his or her end of any given marriage contract. None of the terms are spelled out, unlike in any other form of contract. Marriage contracts don’t have written requirements, so either party could easily claim that the other party is the one who broke the contract.
[The person who wants to leave can define the essential, unwritten terms of the contract to be anything they want.]
No they can’t. Because these terms are unwritten they are not part of the contact, can not be adjudicated and are irrelevant. The terms of the marriage contract are clear. Either party may dissolve the contract at will. The terms of the dissolution are negotiated between the parties. In the 10% of cases where those negotiations fail the court steps in. Anyone who marries agrees to this contract.
All the research I’ve seen about preventing divorce sites one thing that reduces the chance people will divorce. Premarital counseling. Instead of making it harder to get divorced why not make it harder to get married?
Diane what if the affair partner is really the girl of the guy’s dreams and after he leaves his bitter boring wife he gets married to the girl he was cheating on her with and they stay married for 50 years and raise bucket loads of kids happily?
(as he cheats on her with some other broad)
but by all accounts they are happily married until he dies. You just don’t want them to marry the affair partner because it is a slap in the face to the ex. Oh well life hurts everyone is the fool sometimes.
@mythago — “‘no-fault’ means the plaintiff is not really accusing the defendant of wrongdoing anymore.” — This is just meaningless semantics; the defendant is still just as liable for a property settlement, alimony, or child support. The only difference is that with No-fault, there is no chance of any defense.
@marilyn — “You just don’t want them to marry the affair partner because it is a slap in the face to the ex.” This is not the point; it is not the job of government to prevent unhappiness. The role of the government should be to try to deter behaviors that are harmful to society. The reason why adultery has always been condemned in the strongest possible terms throughout human history (right next to murder in the 10 Commandments and two other religions) is that is destructive to families and raising children in a stable environment. Obviously it will always happen at some level, and we aren’t going back to death-by-stoning, but No Fault divorce protects and encourages marital infidelity. This means more divorce, which means fewer children being raised in stable two-parent households.
[the defendant is still just as liable for a property settlement, alimony, or child support. The only difference is that with No-fault, there is no chance of any defense.]
Again, your objection is to the settlement not the divorce. You feel your wife should be entitled to a smaller portion of the marital estate because she didn`t want to stay married to you. Or that because she didn`t want to stay married to you, her fitness as a parent or the needs of your children were changed. How would the state forcing a delay in the proceedings and pushing for reconciliation change any of this.
(The role of the government should be to try to deter behaviors that are harmful to society. The reason why adultery has always been condemned in the strongest possible terms throughout human history (right next to murder in the 10 Commandments and two other religions) is that is destructive to families and raising children in a stable environment.)
The adultery condemned in the 10 commandments was adultery committed by women, not men. When Abraham took Hagar there was no adultery. It would have been adultery only if Hager was married. For most of history it was a property crime. Adultery was defined by the woman`s marital status not the man`s.
(The word translated as “adultery” in the New Testament of the Bible is the Greek word moicheia. Its primary meaning was sexual intercourse between a married woman and any man other than her husband. )
Your objection is not that the government allowed your wife to divorce you it`s that they would not help you punish her for doing so.
@Mont D Law
First, please avoid personal attacks and speculations about my ex-wife and I, in accordance with this website’s policies. You don’t know the personal details, and I don’t want to get into it because we are talking in general about government policies regarding unilateral no-fault divorce and protection of adultery.
“You feel your wife should be entitled to a smaller portion of the marital estate because she didn`t want to stay married to you” — yes, it should make at least a little difference to the settlement whether the plaintiff was unfaithful to the defendent or vice versa. Also, states should not award spousal support where adultery can be proven -at present some states do and some states don’t. This is not a matter of what I think would be fair in my case, this is about deterrence of behavior that harms society.
” her fitness as a parent or the needs of your children were changed” — yes, willingness to break up a family in order to marry an extramarital-affair partner should be a consideration for a person’s fitness as a parent, though of course there are many other considerations as well.
“How would the state forcing a delay in the proceedings and pushing for reconciliation change any of this.” — By giving the plaintiff time to think through the issues and the effects on children. Lots of divorces are very impulsive, and wouldn’t happen if the plaintiff would think about it rationally. This is especially true in case of extramarital affairs, which are very high emotion and irrational and often end after a few months anyway. As smartmarriages.com, beyondaffairs.com, and other websites discuss, lots of marriages can recover and become even stronger after an affair — if the courts don’t force the marriage to end as soon as the plaintiff says the word.
Proposal such as that of Coalition for Divorce Reform would combine the waiting period with some education. For example, don’t you think that divorce rates would be lower if the facts of “Why Marriage Matters” of this website were common knowledge to counter the misinformation of divorce lawyers?
“The word translated as “adultery” in the New Testament of the Bible is the Greek word moicheia. Its primary meaning was sexual intercourse between a married woman and any man other than her husband.” — Thanks, this is an interesting fact of which I was not aware. Maybe the 10 Commandments was not a good argument. I agree with the voiding of criminal punishments for adultery, because those were always gender-biased. But the common meaning of “adultery” in modern dictionaries and modern legal codes is for both sexes. It should be a consideration in family law much more than it is.
(First, please avoid personal attacks and speculations about my ex-wife and I, in accordance with this website’s policies.)
If you don`t want speculation about yourself and your ex-wife stop offering your case as an example. Divorces like yours are not the norm. Most people navigate the process without the drama and legal ugliness you experienced. Once you offer your case as an example you throw it open to discussion.
(This is not a matter of what I think would be fair in my case, this is about deterrence of behavior that harms society.)
Then I would suggest that you need to make 2 statistical arguments. That people are overwhelming interested in changing the terms of the marriage contract. That delays and counseling will produce the results you are claiming. These are issues that can be researched and debated independent of your experience.
So far you have not made either.
@DivorcedDad, it is not really fair of you to say “here is my situation as an example”, and then to insist that nobody else can talk about the situation you have presented. Certainly it would be inappropriate for anyone to hurl personal insults at you and your wife, but Mont did not do that.
I am curious as to what ‘misinformation’ you think is being spread by family-law attorneys. If lawyers are lying to their clients, that seems to me to be a matter for the State Bar to investigate.
And no, it is not ‘meaningless semantics’. You are mixing up different things (specifically, tort actions and divorces). If a divorce is granted by the court, that is not a finding that the person who filed (the plaintiff) is owed money by the person who didn’t file (the defendant).
Also, Mont is correct. Under Jewish law, which is what Jesus was describing when he talked about narrowing grounds for divorce, adultery is and was defined as sex between a married woman and a man other than her husband. A man, married or not, was not committing adultery by sleeping with another woman unless his lover was married to another man.
Since polygyny has been the norm throughout human history it’s a little odd to say that sex other than with one’s spouse has always been condemned everywhere in the strongest terms. It’s not even true that adultery itself was always condemned everywhere.
Mont is not only correct about the Biblical view; it also was the traditional view of English common law, and of the laws in many states in the US too (though applying them that way would probably be unconstitutional sex discrimination today.)
@Mont
“Divorces like yours are not the norm. Most people navigate the process without the drama and legal ugliness” — This is over generalization, and there is no good way to neatly categorize “low conflict” and “high conflict” divorces. Even the 20% of divorces which is mutually agreed upon by both parties generally involve at least a few disputes, while even a very bitter divorce might eventually reach agreements on some points. If your 90% figure was based on whether or not the case goes to full trial, that isn’t valid, since the defeated party might recognize the defeat in advance and save money on the lawyer. The “Good divorce” is a myth.
“That delays and counseling will produce the results you are claiming.” — There are a few studies show effectiveness of Marriage and relationship Education (MRE); for example see http://works.bepress.com/alan_hawkins/1/. But divorce advocates would discount that evidence because that was voluntary marriage education, not mandatory. The social experiment of required education during the divorce process has never been tried to the best of my knowledge; a bill to introduce that in Colorado last year failed. (see divorcereform.us) It would be interesting to compare divorce rates in states with waiting requirements with those that do not, and that should be possible, but I don’t know if anybody has done that.
@mythago
“I am curious as to what ‘misinformation’ you think is being spread by family-law attorneys.”
a. “The children will be happy as long as their parents are happy” — what Elizabeth Marquardt’s book Between Two Worlds calls “Divorce happy talk”
b. “The children will get over it in a few months” — contrary to studies such as Judith Wallerstein’s longitudinal study 25 years later, and contrary to Friedman and Martin’s analysis of 80 years of data that show lower life expectancy of children of divorce.
c. “Divorce is always two people’s fault” — to make the plaintiff feel less guilty about a unilateral divorce
d. “There is nothing wrong with adultery”
e. Sometimes advising plaintiffs to file false or exaggerated charges of domestic violence in order to get a restraining order against the defendant and get defacto custody, since the benefits will outweigh the risks in many cases.
I could go on but this is already a long thread.
“You are mixing up different things (specifically, tort actions and divorces)” — They are closely related. When the plaintiff files the divorce, the plaintiff’s lawyer would advise about how much property settlement, alimony, or child support money would be likely to result; and the probable amount of the settlement influences whether or not the filing is made. The end of the marriage, child custody, child support, spousal support, and the divorce property settlement usually would all be handled by the same lawyers as one case, and the principal of No-Fault applies to all of it in most cases. Whether the defendant is accused of a specific wrongdoing (fault), or is accused simply of being in a “irretrievable broken marraige” — either way the tort actions would follow just the same and the plaintiff would have a fair idea of what the outcome would be before the divorce filing. Of course, people would think carefully about divorcing if they would decrease their standard of living by doing so,
JDW – “it also was the traditional view of English common law” — Thanks for this info. But it doesn’t change the fact that modern-day extramaritial affairs are damaging to families and child-rearing, and should be a consideration in the tort actions related to divorce.
(The social experiment of required education during the divorce process has never been tried to the best of my knowledge)
Not in the US, but in Europe mandatory counseling and education programs have no impact on the divorce rate. France allows no-fault and fault options to varying degrees depending on the circumstances of the couple. One out of two marriages in France ends in divorce. In the US several states offer a choice of marriage contracts. Covenant marriage contracts do not allow no fault divorce and the number of grounds are very limited – domestic violence, a felony with jail time, or adultery. There are not many takers.
The lawyer thing is kind of different. A to D are opinions on non-legal issues and whether lawyers should offer them can be debated. But short of draconian governmental interference I can’t see a remedy. I suspect any attempt to regulate speech at this level would go the way of gun questions and doctors. E is flat out illegal and any lawyer involved would be risking their license and a stint in jail. I would need more than anecdotal evidence to convince me this happens more than occasionally.
[If your 90% figure was based on whether or not the case goes to full trial, that isn’t valid, since the defeated party might recognize the defeat in advance and save money on the lawyer.]
Only actions can be measured and evaluated. Projected motivations do not negate the fact that only 10% of divorcing couples in the US exhibit the pattern of low communication and high discord that defines high conflict divorce.
[The “Good divorce” is a myth.]
This is pretty amorphous but I’ll give it a shot. That there is no such thing as a good divorce is true for most of the children of divorce. But, for adults that is not the case. For the majority of adults divorce is a fairly cut and dried process, painful and with some conflict but they sort it out. For the adults this is a good divorce. And while all divorce is bad for children the very worst type of divorce for children is the high conflict divorce.
@Mont D Law – “The adultery condemned in the 10 commandments was adultery committed by women, not men.”
Just a technicality here, but that’s not possible unless they were lesbians.
Another way to put it might be that sleeping with a married woman was prohibited, but sleeping with a woman other than your wife was not. (Although in a culture where most women were married at a young age, this might allow as much jerkish behavior as you would think.)
Ugh, my last post should have said “this might NOT allow as much jerkish behavior as you would think.”
Anyhow, to some of the points –
@Mont D Law – “Divorces like yours are not the norm. Most people navigate the process without the drama and legal ugliness you experienced.”
One thing I find very weird about divorce statistics is that really, we have no idea why people get divorced or who often adultery plays a role. This is partly because of no-fault divorce. Nobody has to write down or explain why they are getting divorced.
I’m also very suspicious of a claim like “most people navigate the process without the drama and legal ugliness you experienced.” We don’t know exactly how much drama he experienced, but we have good reason to think a lot people have a hard time with divorce and the whole process. Only a small percentage of parents really have a divorce without nasty conflicts. It takes about five years to adjust after a divorce. Many people complain about divorce and feel they get a raw deal.
I think this makes sense: (from DivorcedDad):
“How would the state forcing a delay in the proceedings and pushing for reconciliation change any of this.” — By giving the plaintiff time to think through the issues and the effects on children. Lots of divorces are very impulsive, and wouldn’t happen if the plaintiff would think about it rationally. This is especially true in case of extramarital affairs, which are very high emotion and irrational and often end after a few months anyway.
I am not sure if it would work, but I think we’d need a study of this particular program to see if it helped compared to couples who didn’t get it.
Mont D Law, the fact that counseling doesn’t prevent all divorce in France does not prove that counseling doesn’t work. Maybe the divorce rate would be higher without it. Maybe they didn’t have the right counseling. Maybe it would only work in certain circumstances. (What exactly are the circumstances where France requires it?)
@Divorced Dad – So, if you support not getting as much spousal support if you chose to leave for a jerk, would you support a woman getting more spousal support and assets if her husband leaves her for a jerk?
@Diane M — yes, certainly fault should be considered both ways for spousal support, and to a lesser extent for the property settlement and custody. Consider two cases. One woman a faithful wife of 20 years and good mother whose husband abandons the family to run off with a younger woman, who files from divorce in order to have money to support the children. The other case a woman who cheated on a loving, hard-working husband and good father, who had an affair with the tennis instructor and now wants to divorce her husband and kick him out of the house so that her lover can move in. In my opinion, it would be fair — not to mention more beneficial for stable families in our society — for the first woman to get a better settlement from her husband than the second one. But advocates of No-fault divorce (and the laws of most states) say that that the two cases are exactly the same since everybody knows that divorce is always 50% the fault of both parties.
(I’m also very suspicious of a claim like “most people navigate the process without the drama and legal ugliness you experienced.” We don’t know exactly how much drama he experienced, but we have good reason to think a lot people have a hard time with divorce and the whole process. Only a small percentage of parents really have a divorce without nasty conflicts. It takes about five years to adjust after a divorce. Many people complain about divorce and feel they get a raw deal.)
High conflict divorce is an actual thing, with a definition. It is not a opinion offered by the couple divorcing. Professionals at all levels work hard to identify it, head it off and if they can’t mitigate it’s consequences. Run a search. Is divorce unpleasant and conflict filled, yes but most people suck it up and deal. The 10% never do.
(Lots of divorces are very impulsive, and wouldn’t happen if the plaintiff would think about it rationally.)
I have seen no evidence that this is the case. If you have some actual data on this I’d love to see it.
(This is especially true in case of extramarital affairs, which are very high emotion and irrational and often end after a few months anyway.)
Again I can find no evidence that this is true.
(the fact that counseling doesn’t prevent all divorce in France does not prove that counseling doesn’t work.)
It proves that restricting access to no fault divorce when one person objects to the divorce doesn’t lower the divorce rate. Because in France they do that & their divorce rate is the same as the US.
(But advocates of No-fault divorce (and the laws of most states) say that that the two cases are exactly the same since everybody knows that divorce is always 50% the fault of both parties.)
Advocates of no fault divorce say no such thing.
@Divorced Dad, lawyers who advise their clients to make false criminal allegations are violating their oath and should be reported to the State Bar. As to your other comments, you appear to be taking cultural arguments that some people have made about marriage and claiming that all divorce lawyers repeat these to their clients. That’s a rather bold claim.
And no, they are not “closely related”. Again: you are mixing up two entirely different legal schema because you believe property should be divided based on who was morally to blame for the divorce.
There is a reason that we moved away from fault-based divorce, and it wasn’t that everyone decided divorce should be fun and easy. It was because the process of proving fault in court is ugly, protracted and often impossible for the victims. You feel sorry for the wife of 25 years thrown out on her ear for a younger model? Imagine if she’s not allowed to get a divorce unless she proves, in a court of law, by a preponderance of the evidence, that he was screwing around during their marriage. There’s a reason that the PI trailing around after the cheating husband and “my husband/wife won’t let me divorce and marry you, let’s kill him/her” is no longer a trope in mysteries.
(There is a reason that we moved away from fault-based divorce, and it wasn’t that everyone decided divorce should be fun and easy.)
The legal profession was also concerned about the amount of perjury taking place in divorce court.
(Every day, in every superior court in the state, the same melancholy charade was played: the “innocent” spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed “cruel.”)
(In divorce litigation it is well known that the parties often seek to evade the statutory limitations and thus there is great danger of perjury, collusion, and fraud . . . . In many cases no defense is interposed, and often when the case is contested the contest is not waged with vigor or good faith.)
(One method popular in New York was referred to as “collusive adultery”, in which both sides deliberately agreed that the wife would come home at a certain time and discover her husband committing adultery with a “mistress” obtained for the occasion.The wife would then falsely swear to a carefully tailored version of these facts in court (thereby committing perjury). The husband would admit a similar version of those facts. The judge would convict the husband of adultery, and the couple could be divorced.)
@mythago “the process of proving fault in court is ugly, protracted and often impossible for the victims” — The No-Fault process in court is often ugly and protracted as well, and ALWAYS impossible for the victims. The women in example A at least has a chance to prove in court in that her husband left her for younger women, and abandonment would be a fault that would be easier to prove in court than adultery. The man in example B has no chance whatsoever.
@Mont — “collusive adultery” — if it was collusive, then the divorce wasn’t unilateral. Hardly anybody objects to No-fault divorce in the 20% of cases where both sides agree that divorce is necessary. The harm to families is caused by unilateral no-fault divorce, especially in states where fault is also not considered in setting spousal support or property settlement and where custody generally goes to the mother by default.
Back to the original point of the UK article, divorces are too easy now — so there are a lot more of them than there would be if they required a reason.
Mont D Law – you want cites and studies, but the evidence you offer is just your version of what lawyers, etc. say.
I do believe, as I said, that we don’t really know why people divorce. That is one of the legacies of no-fault. It isn’t written down anywhere.
My point about France is that they are a different country. It is at least possible that their divorce rate would be even higher than it is if they allowed unilateral no-fault divorce. Comparing them to us is not definitive proof.
My basic belief about the change in laws is that when we had fault-based divorce, a lot of lawyers and judges didn’t like it, so the laws were changed. That fixed some problems, but it created others.
I do wonder, though, if anyone knows – there are countries other than ours where no-fault divorce isn’t allowed. What happens there? Is divorce a blood bath? Does it change property settlements? New York State didn’t allow unilateral no-fault divorce until very recently – were divorces really worse there?
One reason I could see for not allowing unilateral divorce is that now the balance of power rests with the person who wants to leave. If they couldn’t leave someone who was not at fault, they might have to bargain more in order to get the other spouse to agree to a no-fault divorce.
The other justification that makes some sense to me is that if fault had an effect on the property division, that might deter some people from doing things in the first place.
I’m not convinced on this one, but I really can’t see any reason not to tell couples where one person doesn’t want the divorce that they should slow down, particularly if the person who wants to leave is in the middle of an affair and/or if the couple has children.
(@mythago – not that it matters, but the trope of murdering your spouse so you can marry your co-cheater is alive and well in murder mysteries and TV shows. The plot is changed to not having to pay them any alimony or getting their property. However, this proves nothing about reality.)
“The terms of the marriage contract are clear. Either party may dissolve the contract at will. The terms of the dissolution are negotiated between the parties. In the 10% of cases where those negotiations fail the court steps in. Anyone who marries agrees to this contract.”
This quote really hit me. It’s both true and not true.
I don’t think most people agree to this contract or realize that it is the marriage contract in America.
I do think that it is in effect the contract – either one of you can dissolve the contract whenever you want to for whatever reason you want to.
And perhaps this is one reason young people don’t get married. As stated, it’s a somewhat meaningless contract.
@diane
There is a great little book about this subject by Judy Parejko, called Stolen Vows. It just came back into “print” via Kindle; see http://www.amazon.com/dp/B009PGGZOU. We are busy with the debate about gay marriage, but another issue that affects vastly more children is hardly mentioned — should heterosexual marriage be legalized?
@mont
A few days ago, you made a request for statistics — not just anecdotes — about the frequency of lawyers advising divorce plaintiffs to file false allegations of domestic violence. This is a huge issue for father’s rights groups such as Fathers and Families and National Father’s Resource Center — a Google search for domestic violence false allegations” will show that at least. This website http://voices.yahoo.com/the-harm-false-allegations-abuse-5182957.html?cat=17 states that 65% of DV calls are recanted, though I don’t see really clear statistical studies to back it. The book “Taken Into Custody” by Stephen Baskerville has an entire chapter on the subject of false DV allegations, which has 209 citations to law journals and other articles such judges stating publicly how common it is. Of course it would be hard to prove what lawyers say in private consultations with clients.
@mythago — we were debating whether or not the property settlements and spousal support were closely related to the divorce itself; and also the old argument that “you can’t force somebody to stay married against their will”. I just want to be clear that we both agree on the difference between a person who files a unilateral no-fault divorce against their current spouse in order to marry a new partner that they are having an an affair with — as opposed to just moving out of their current home and cohabiting with their new partner without a formal divorce. The big difference is that a divorce and remarriage would produce a property settlement and spousal support from the defendant, where simple cohabitation with the new partner without a formal divorce would not. People don’t file divorce so that they have permission to leave their spouses — they do it for financial reasons. This is why unilateral no-fault divorces are so unfair. I hope I’m explaining that better.