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August 26, 2004

Define Fault and Abuse...

An exchange in the comments to this post brought to mind a disconnect between theoretical discussion and real experience. The following dialogue is culled from several comments:

Mike S.: I'm not saying divorce should be disallowed, I'm arguing that our current laws make it too easy. What would you say about a waiting period? Say, 2 years? What about requiring both partners to agree to the divorce?

Mark Miller: A very bad idea. Requiring both partners to agree gives too much power over the outcome to one person. Maybe I could accept that in the case of a no-fault divorce.

Mike: Why do you not think that no-fault divorce gives too much power over the outcome to one person? Say the husband suddenly decides he doesn't want to be tied down, and want to go date other women. Our current laws effectively allow him to unilaterally end the marriage, which has the effect of saying that his personal desires are more important than his wife's, and than the interests of keeping the marriage together.

Mark: Say the husband is philandering and abusing the wife and children but doesn't want to end the marriage because it will be costly and who doesn't want to have their cake and eat it too. In that case, his personal desires should not trump those of the suffering wife/children and ultimately - society. That is a simple (and common) example why you cannot require both people to sign off on a divorce.

Mike: I'd say you've described a 'fault' divorce, not a 'no-fault' one.

Mark thereafter noted his initial qualification that "maybe" he could accept the two-party sign-off in the case of "no-fault" divorce. Still, the "maybe" — standing in contrast to his emphasis on the "very bad idea" of giving one party too much power — suggests that it isn't the "outcome" that shouldn't be unilateral, in his view, but just the specific outcome of a continuation of the marriage. Maybe one person shouldn't have the power to end a marriage, but certainly one person shouldn't have the power to maintain it. I suspect that is a common opinion, as unstated and unconsidered as it may often be.

After decades of the status quo, it does seem odd to think that one spouse might even want to stay married to another who wanted out. Therefore, we're inclined to attribute some sort of adverse motive to a hypothetical one who does. I wonder, though, if this mightn't change were the two-person sign-off required. Couldn't Wouldn't having the option, and knowing that he or she would have the option, to veto a divorce make the reluctant party reconsider whether the marriage has some value beyond agreeable cohabitation? Wouldn't, also, the other spouse be affected in the decisions that he or she made leading up to a divorce knowing that it mightn't go through?

So, to the practical reality that the theoretical discussion often neglects: most of the divorces with which I've had personal contact have involved a cheating husband who simply wanted out. In one case, the role was reversed, but it would have undeniably been in the wife's and children's interests for the effort to have been thwarted (as she would have had reason to believe it would be when the thought first entered her mind). We can shine rhetorical spotlights on a giant billboard picturing an abusive husband who won't let his wife and children escape, but it seems to me that we wind up ignoring all those other husbands (and wives) lurking about in the shadows indulging in a different form of abuse — of both their own families and our shared social fabric.

Posted by Justin Katz at August 26, 2004 1:30 PM
Marriage & Family
Comments

Serendipitously, after reading this post, I found the following on the "Mere Comments" section of Touchstone magazine. It refers to a study that indicates that divorce can be more traumatic to children than the death of a parent.

Posted by: Mike S. at August 26, 2004 2:05 PM

The disconnect between theoretical discussion and real experience, unfortunately, defines much of Catholic analysis of various issues, theological and otherwise.

Posted by: Joseph D'Hippolito at August 26, 2004 2:56 PM

WTF do people not understand about "til death do us part"? How do adults utter those words in front of God or a Judge and still take them so lightly?

Whatever draconian measures you want to take are fine with me, so long as people start thinking seriously about such a grave oath again.

Posted by: Marty at August 26, 2004 4:50 PM

I didn't read the entire discussion that this post summarized, but it seems to miss the point of the old fault-based divorce system. It wasn't about forcing people to stay married. It was about making them pay for having broken their vows.

Fault determined the outcome of the divorce: who got the kids, who got how much property, and who paid how much child support and alimony. From my limited third-hand experience with family law, the current system simply assumes that the woman wins unless the man goes to extraordinary lengths to prove that she shouldn't. The child support system in particular is extraordinarily punitive.

So the question is not whether to lock people in in marriages or set them free. It's whether to preserve an ideologically-driven system called "no fault," or whether to go back to more traditional concepts of justice, such as freedom of contract and enforcement of promises.

As is often mentioned in the SSM debate, you can view marriage as just a contract. If you reduce it to that, then no-fault divorce says that traditional marriage vows are mostly unenforceable. This is why a few states have introduced covenant marriages, with the general idea of giving people back their freedom to enter into traditional marriage commitments. It's also why prenuptual agreements have become so widespread.

With traditional marriage vows gutted, the government has already mostly gotten out of the marriage business. The default government-sanctioned model is a shadow of its former self. If you want the old-fashioned version, then you had better hire a lawyer or two to reconstruct the old obligations in a prenup, and maybe move to a state with covenant marriage.

Most of marriage was destroyed in the name of sexual liberation when most of us were children, or not yet born. SSM is just the latest battle in the same crusade. The irony is that so many of those who suffered as children of divorce so that the swingers could have their fun in the seventies now support another round of sexual liberation that will inflict even more suffering on the next generation.

Posted by: Ben Bateman at August 26, 2004 6:36 PM

Even those couples that start off with the best of intentions in practicing "til death do us part" can get side-tracked through poor communication and misundertanding. I very nearly divorced my spouse in a bout of sheer stupidity and willfulness even though I once vowed that I would not do the same thing my parents did. Thankfully, there are organizations like Retrouvaille around that attempt to throw a lifeline to marriages in trouble.

It would be nice, though rather impractical, to make attendance of a similar program mandatory in cases of no-fault divorce. If even one percent of divorce cases were headed off this way, that would be a tremendous success story.

I hope Justin does not mind my unabashed banner waving act. If anybody is interested in helping out the ministry of saving marriages, the website is http://www.retrouvaille.org

Posted by: smmtheory at August 27, 2004 12:02 AM

You're absolutely right about that irony, Ben - your comment really struck me. So many children of divorce have grown up disillusioned about marriage, without a model of how to make it work, and so have been more likely to divorce in their own marriages - despite many specifically intending not to do the same thing as their own parents. Having seen and lived through all the negative effects of divorce, why so eager to embrace another revolution in marriage that would also hurt children? I think it's a consequence of that not understanding the true meaning of marriage or how it works, and (in some cases) a sincere but ultimately misguided desire to re-value marriage. It's also a consequence of accepting all the values that helped bring no-fault divorce and that have become wholly commonplace since it became widespread - namely, the primacy of personal autonomy, the expanded conception of "rights," the acceptance of all sorts of sexual practices as being equally valid, and the reluctance to make moral judgments in law and society. People who have suffered collectively and individually from an easy-divorce culture and who yet support SSM may not intend to divorce themselves or hurt their own (or others') children, but they're also more likely to be confused, precisely as a result of that culture, into being unable to understand the real meanings of marriage - the real, positive effects of marriage, and the real, negative effects of its counterfeits.

Incidentally, I wrote some about making divorce harder the other day.

Posted by: Kimberly at August 27, 2004 2:30 PM

You know, this probably doesn't address the specific topic at hand, but all the crap that preceeds and follows divorce would be non-existent if the following things happened:

1. Marry someone that you love; someone that loves you. I know it's pretty basic...but people misunderstand this one all the time. Contrary to popular belief, love isn't a "feeling" that dies out. It's action. Love is action, requires daily work, and commitment. The minute you start thinking about ways out, you've stopped loving that other person. So start loving them again. It's really simple.

2. Know the difference between like and love. This addresses the whining you'll hear after people read number 1. Guess what? I don't always like my wife everyday...and she probably doesn't like me either, on occassion. "Like", and feelings/butterflies/sex desire, etc... has NOTHING to do with love. Remember, love is action. Refer to rule number 1, and watch the sparks fly again in your relationship (be warned, this does take work, but the results are breathtaking).

3. Rules 1 and 2 won't help until both parties decide for themselves that they're willing to honor the commitment they made. Circumstances change, beauty fades, finances go up and down, mood swings happen...but love with commitment endures. Period.

BTW, sometimes divorce will still have to happen. I don't like the idea, but there are certain occasions (physical abuse, infidelity, etc...).

Posted by: Jim Price at August 27, 2004 3:37 PM

I don't disagree with anything you said, Jim, but the real issue is the fact that marriage is a social institution, not just a contract or commitment between two people in isolation. Societal attitudes about marriage, its purpose, and its permanence affect individual marriages. The question is, how do we get people, on a large scale, to understand the points you made? One thing that I think would help would be to make it legally more difficult to get a divorce.

Posted by: Mike S. at August 27, 2004 9:58 PM

I hate to be so late commenting on a topic where my name is used but vacations ARE necessary - even short ones.

I certainly agree this is based on the disconnect between theoretical discussion and real experience. But other than that ....

Kimberly wrote "So many children of divorce have grown up disillusioned about marriage, without a model of how to make it work, and so have been more likely to divorce in their own marriages - despite many specifically intending not to do the same thing as their own parents."
—--- Absolutely true. But the reality is that the same thing can be said about children of some married parents. To believe that each and every child is better off because their 'parents are married' is either denial or naivete. I have personal experience with people whom undoubtedly would have been better off if they had not grown up seeing what they saw in their parents relationship. This is not only in cases of abuse and/or adultery but cases where one of the persons is just not capable of engaging in a healthy relationship.

It is theory that marriage is a wonderful and beautiful thing. The reality is that it takes a lot of work, ideally by both people, to make that a reality.

I don't think it is a legitimate government interest to keep couples married. A sociological study saying that divorce emotionally harms children does not justify government involvement any more than those studies that support the government requiring a specific gas mileage for cars. Of course it would be better if everyone had smaller card with better gas mileage. Why not make it mandatory ? To me, similar logic applies here.

Making both people sign off on a divorce is simply bad policy. Theoretically, it would make both people work together and try to find the common ground to stay together. Fair enough. But I contend that most of those people are already doing that.

In one of our many exchanges, Mike said that the purpose of a govt policy should not be to 'change attitudes' (I'm sure he referred to legitimizing gay relationships). I feel the same way towards a govt policy towards divorce.

I guess because of what I've seen and experienced, a decrease in the divorce rate does not necessarily refer to an increase in quality of lives of children or their parents. To me, that thinking is indicative of the disconnect between theoretical discussion and real experience.

Requiring both people sign off of a divorce does send a message of government discouragement. But, in my view, the reality is that more parents and children will be harmed than helped by it.

It improves statistics in the short term but harms lives (not to mention limits freedom) in the long term.

Posted by: Mark Miller at August 30, 2004 12:57 PM

Mark Miller said:
Making both people sign off on a divorce is simply bad policy. Theoretically, it would make both people work together and try to find the common ground to stay together. Fair enough. But I contend that most of those people are already doing that.

I have to disagree with at least part of this thesis. If "most" people were already working together to find common ground to stay together, the national divorce rate would be much lower.

I would be willing to bet that changing the venue of divorce to a peer jury trial to determine whether or not there should be a probationary period, immediate divorce, a reconciliation attempt, et cetera would significantly alter the landscape of free-for-all divorce. This would at least provide a bit more balance to mitigate emotional harm in children. It might provide a bit more incentive to work things out when that is a viable avenue of exploration. Contested divorces wouldn't be automatically decided either way. Non-contested divorces could be plea bargained so to speak.

Posted by: smmtheory at August 31, 2004 1:07 AM

smmtheory said:
If "most" people were already working together to find common ground to stay together, the national divorce rate would be much lower.

I have to disagree. That would be assuming that many divorces are a result of apathy about the end of the marriage and its effect on the children. I do not believe that.

I also do not agree that turning divorce proceedings to what would essentially be a civil trial would be beneficial to anyone - except the lawyers. Adding more adversarial circumstances to a divorce is not a good thing - not good for the children - not good for the adults. Obviously, you are hoping that this would discourage people from actually going through a divorce but if that is your agenda, then why not just make it illegal. Your logic seems to be akin to making legal divorce as emotionally painful as possible so maybe people will think twice. I do not think that should be the role of the government.

Finally, while divorce is certainly not a positive outcome, it is also not a negative outcome in all cases. The issue is what is best for the children and that needs to be decided on a case by case basis. The other issue missing from your view is cost-benefit. Certainly, gun control would decrease gun violence. Criminalizing smoking would decrease deaths also. But at what costs ? My point is that the cost of individual liberty to be a consideration.

I am not saying that divorce should be made easy or that I am an advocate of no-fault divorce. But I do know that additional freedom always has costs and that the effect on freedom needs to be a part of the equation with regard to changes in divorce law.

Hence, the assertion that 'divorce harms children, therefore it needs to be made very difficult' is too simplistic for me.

Posted by: Mark Miller at August 31, 2004 12:25 PM

"The issue is what is best for the children and that needs to be decided on a case by case basis."

"But I do know that additional freedom always has costs and that the effect on freedom needs to be a part of the equation with regard to changes in divorce law."

I think those two things are in tension with one another - when you talk about freedom, you're talking about the adults, but when you talk about what is best for the children, you're talking about the children. If you want to emphasize the freedom of the adults, by necessity you're going to place the needs of the children lower than you would if you were placing their needs first.

I'm not really sure what you're arguing with, here. I don't think anybody is saying that divorce should be outlawed. Clearly, in cases where there is physical or psychological abuse going on, the law can (and does) take that into account. What we're talking about is the situation where the married couple wants to divorce for some less serious reason (they can't get along, they fight all the time, they don't love each other anymore, they want to date other people, etc.). In this situation, it is in society's interest, and 99% of the time in the children's interests, to discourage the breakup of the marriage. Since you don't favor no-fault divorce, and you don't think divorce should be easy, what position do you think we have that you are specifically arguing against?

Posted by: Mike S. at August 31, 2004 2:41 PM

"What we're talking about is the situation where the married couple wants to divorce for some less serious reason (they can't get along, they fight all the time, they don't love each other anymore, they want to date other people, etc.). In this situation, it is in society's interest, and 99% of the time in the children's interests, to discourage the breakup of the marriage."

My issue is that I think we'd disagree on when divorce should be allowed or not. I don't agree that any or all draconian measures should be made to lower the divorce rate. I don't agree that divorce should always be presented as 'detrimental' to children. In many cases, it is not.

An analogy to me is, well, war versus peace. Of course peace is preferable to war. War causes much destruction and ends many lives. Does that mean war is never justified ? Is 'not engaging in a war' indicative of peace ? Based on that logic, Michael Moore showing the Iraq playgrounds destroyed by our bombs is legitimate.

Sometimes, there is legitimate cause for war. Just as sometimes there is legitimate cause for divorce. Where I think we'd disagree is that you and many of the commenters in this thread seem to feel that divorce should only be allowed in cases of abuse. Some said that divorces should be akin to a civil trial. You said that divorce should not be allowed unless both parties agree.

My point is that while divorce should be 'socially' discouraged - and certainly religions play a significant part in that, I stop short of believing the government should have a major role in this. I think that it is the job of the parents to balance the welfare and needs of their children with their own.

Obviously, things are already in place that when parents are irresponsible, social services needs to get involved.

But I believe that the majority of parents who consider and eventually follow through with divorce have considered the effects on their and their children lives without the additional government hoops you are proposing. And for those people who just walk away without a second thought about their children, I don't see how keeping that person in the marriage is a good thing. It may decrease the divorce rate but it won't improve lives in the long run.

Posted by: Mark Miller at August 31, 2004 4:43 PM

"My issue is that I think we'd disagree on when divorce should be allowed or not. I don't agree that any or all draconian measures should be made to lower the divorce rate. I don't agree that divorce should always be presented as 'detrimental' to children. In many cases, it is not."

I don't think draconian measures should be taken, either. But I can't figure out why you think divorce is not almost always more detrimental to the children then the alternative. The fact that 5%, or 10% of the time, the divorce works out to be the best solution doesn't mean that we should make the assumption that that option is equally valid to staying married. Right now ~50% of new marriages end in divorce. I think that number should go down to, say, 20%.

There are numerous studies that show that children do better in families with their biological parents married to each other. That doesn't mean there aren't exceptions, but it does mean that that should be the goal, and the law should reflect that.

"Where I think we'd disagree is that you and many of the commenters in this thread seem to feel that divorce should only be allowed in cases of abuse. Some said that divorces should be akin to a civil trial. You said that divorce should not be allowed unless both parties agree."

Why do you think someone should be able to break a contract without the consent of the other party? And why do you think that divorce is an acceptable solution when there is no abuse? Marriage is difficult, and raising children is difficult - if you tell people they can leave if the going gets tough, more of them will.

"My point is that while divorce should be 'socially' discouraged - and certainly religions play a significant part in that, I stop short of believing the government should have a major role in this. I think that it is the job of the parents to balance the welfare and needs of their children with their own."

I think you separate the law from the culture too easily. Obviously, they are not one and the same, but they influence each other. If social mores change to view marriage as less permanent, and divorce as more acceptable, then the law will eventually change to reflect that. Likewise, if the law is changed (not in a draconian manner), then people's views of the importance of staying married will shift. I agree with you that religious institutions need to do a better job of supporting and promoting marriage, but that doesn't mean the laws should not be changed to reflect the importance of the marriage contract.

"But I believe that the majority of parents who consider and eventually follow through with divorce have considered the effects on their and their children lives without the additional government hoops you are proposing."

I think they rationalize to themselves that "the kids will adjust", but most of the time they are putting their personal needs ahead of their kids' needs. And I think they are frequently told by society that divorce isn't that harmful to children. The study I pointed out indicates that isn't true.

"And for those people who just walk away without a second thought about their children, I don't see how keeping that person in the marriage is a good thing. It may decrease the divorce rate but it won't improve lives in the long run."

As long as the parents are not being abusive, then the kids are definitely better off having their parents stay married.

Posted by: Mike S. at August 31, 2004 9:21 PM

Mark,

To put Marty's question in a nicer way - why do you think marriage vows say "'til death do us part"? Do you not think marriage should be for life? Does your wife know this? ; )

Posted by: Mike S. at August 31, 2004 9:27 PM

Mark Miller said:
But I believe that the majority of parents who consider and eventually follow through with divorce have considered the effects on their and their children lives without the additional government hoops you are proposing.

I am not sure in what capacity you have dealt with divorce in order to develop this belief. I do not subscribe to it though. I can say that from my own experience, for the majority of divorces I hear about, they do not match the no-fault no-contest we've carefully thought about how it's going to affect us and our children model. I keep hearing about the kind where the communication has broken down and both parties are so wrapped up in their own pain and mental anguish they can barely think straight in most cases. Occasionally, I hear about the kind where somebody has developed a relationship with a third party and have unilaterally determined that the marriage is all over but the property division. Are you going to tell me that I lead too sheltered a life?

I cannot really see that moving divorce to a peer jury trial setting would increase the adversarial nature of divorce (given that lawyers are often involved even in a no-fault divorce anyway), but I'll make a concession here and modify the situation I am suggesting by removing the lawyers from the trial. I am not saying that care should not be given to ensure that abuse cases not be allowed to continue, but what about if the substance abuser gets treatment, cleans up and turns their life around? That is not necessarily going to happen if all cases involving abuse are unilaterally decided. What about if a physical or mental abuser gets help and learns to control themselves?

I think you should look around at the current state of 'socially' discouraged divorce situation. That is just not getting it done. Despite all that religious institutions are doing (and I am on the front lines of this battle with another shameless plug), the rest of society is short circuiting the effort. Maybe the social services aspect offers people the 'safety net' they need to forget about the welfare of their children. It seems to me that you are advocating no change at all to the current system because of the (what seems like to me) few children who would be harmed by parents staying married. Yet you are also offering no suggestions on how to improve things.

Let us think about this for a moment...
That is clearly just not getting the job done.

Posted by: smmtheory at August 31, 2004 10:56 PM

"But I can't figure out why you think divorce is not almost always more detrimental to the children then the alternative. The fact that 5%, or 10% of the time, the divorce works out to be the best solution doesn't mean that we should make the assumption that that option is equally valid to staying married. Right now ~50% of new marriages end in divorce. I think that number should go down to, say, 20%."
—------- Where do you come out with your statistics such that in 5% or 10% of the time divorce is a 'better' solution ? I don't think a study has or even could be done based simply on the relativity of the word 'better' and the unknown or at least unquantifiable measure of the alternative. In any case, my point is this - divorce is tragic. I agree. But I also think it is sometimes necessary and that 'necessity' is better determined by the people directly involved, not the government. I have no problems having a waiting period or even mandatory counseling where children are involved. You want the divorce rate down to 20%. Why not make it a quota ? Keep track of it and after 20%, no more are allowed. Sort of a first come first serve basis. I also want the murder rate to decrease - and fewer health related deaths. Are you willing to support to gun control based on the increase in accidental death rates where a gun is in the house ? How about smoking ? Especially in a home with children. How can the government allow that ? Or obesity ? Should fast-food be outlawed ?

It is simplistic to say 'children are better off with both parents' and the law should reflect that. Duh. The question is HOW should the law reflect that ? Should it be strict ? All children under the age of 18 should have two opposite sex married parents living in the home with no smoking or a gun in the household and only two fast-food meals per week are allowed. Wouldn't that be what is best for the children ? Why not ?


Why do you think someone should be able to break a contract without the consent of the other party?
----- Huh ? My point is when one party breaks the contract then the other party should not have to fulfill their end. In your world, although one party breaks the contract, the other party should be still be legally required to maintain their end of it. Is this fair to you ? Memo to me - no contracts with Mike S.

And why do you think that divorce is an acceptable solution when there is no abuse?
----- Come on - that is as silly as asking 'is war an acceptable solution when there is no immediate threat ?' I acknowledged it is tragic. But lives are at stake and in this country we have a right to the pursuit of happiness IN ADDITION to the responsibility to our partners and children. If life is only about making things best for children, then why not support arranged marriages ? The balance is not nearly as simple as you are making it.

Marriage is difficult, and raising children is difficult - if you tell people they can leave if the going gets tough, more of them will.
------ And maybe some of them should. And some of them shouldn't. Also, if you tell people they cannot leave when the going gets tougher, then that makes it a lot easier for one person to make it a lot tougher. I guess I've seen that the fear of the end of the marriage makes people work harder to make it good and stay together for their own sake. I also think that people doing things for themselves is better than following legal requirements.

I think you separate the law from the culture too easily. Obviously, they are not one and the same, but they influence each other. If social mores change to view marriage as less permanent, and divorce as more acceptable, then the law will eventually change to reflect that. Likewise, if the law is changed (not in a draconian manner), then people's views of the importance of staying married will shift.
----- Didn't you say that the law should not be based on shifting cultural attitudes. That was in reference to gay rights. Where our cultural agendas are difference - I want more acceptance of gays and you want less. In any case, if laws are changed to make marriage more permanent, then that should include pre-marital laws and hoops just as there would be walls to divorce. It makes no sense to build wall at the exit but not the affect the entry.

I think they rationalize to themselves that "the kids will adjust", but most of the time they are putting their personal needs ahead of their kids' needs. And I think they are frequently told by society that divorce isn't that harmful to children. The study I pointed out indicates that isn't true.
----- Maybe so. Maybe not. The same can be said drinking, smoking or even spanking. My point is that divorce is a very personal decision and it should be discouraged based on the law (which I think it is) but not by making specific requirements such as 'both people agreeing'.

As long as the parents are not being abusive, then the kids are definitely better off having their parents stay married.
------ Depends what is referred to as 'abuse'. But basically, there are definitely instances of unhappy people in marriages where abuse is not involved yet divorce is appropriate.

To put Marty's question in a nicer way - why do you think marriage vows say "'til death do us part"? Do you not think marriage should be for life? Does your wife know this? ; )
------ Do those vows say "till death do us part, unless there is abuse ?". Of course marriage should be for life. The key word is SHOULD. Our key difference is who should be responsible for keeping marriages together - the government - or the couple. And yes, my wife knows. But she controls me.

I am not sure in what capacity you have dealt with divorce in order to develop this belief. I do not subscribe to it though. I can say that from my own experience, for the majority of divorces I hear about, they do not match the no-fault no-contest we've carefully thought about how it's going to affect us and our children model. I keep hearing about the kind where the communication has broken down and both parties are so wrapped up in their own pain and mental anguish they can barely think straight in most cases. Occasionally, I hear about the kind where somebody has developed a relationship with a third party and have unilaterally determined that the marriage is all over but the property division. Are you going to tell me that I lead too sheltered a life?
----- No, I'm not saying you lead a sheltered life. I said I would agree to a waiting period. Are you saying that in all of these cases you think that the government should not grant the divorce ?

I am not saying that care should not be given to ensure that abuse cases not be allowed to continue, but what about if the substance abuser gets treatment, cleans up and turns their life around? That is not necessarily going to happen if all cases involving abuse are unilaterally decided. What about if a physical or mental abuser gets help and learns to control themselves?
------ To me, then the people have the freedom to get back together. What if the person does not get help and turn their life around ? I guess the question (and our primary difference) is what is the government role in this ?

I think you should look around at the current state of 'socially' discouraged divorce situation. That is just not getting it done. Despite all that religious institutions are doing (and I am on the front lines of this battle with another shameless plug), the rest of society is short circuiting the effort. Maybe the social services aspect offers people the 'safety net' they need to forget about the welfare of their children. It seems to me that you are advocating no change at all to the current system because of the (what seems like to me) few children who would be harmed by parents staying married. Yet you are also offering no suggestions on how to improve things. Let us think about this for a moment... That is clearly just not getting the job done.
----- Our point of contention is the definition or measure of 'getting the job done'. Is it based on a divorce rate under 20%? Is it based on making sure parents with children do not get divorce ? Actually another point of contention is the assertion that couples who get divorced don't care or forget about the welfare of their children. That is simply not true in all cases. Again, we all agree that divorce is a tragic event. But your answer is pretty simple - the law should make it very difficult for the sake of the children. But what about other tragedies such as women who smoke/drink while pregnant, parents who smoke in the home, parents who have guns in the home, etc, etc. Why not do what many cultures did and choose a mate for your child and require them to have children and divorce is not an option. Then the divorce rate is 0%. What can be better than that ? I do advocate some changes in divorce law - to encourage and support (but not require) couples to stay together.

To me, it is you that are treating marriage more as an unbreakable contract without taking into consideration the effects on the people in the contract. In this case, I think I am the one being conservative - people taking personal responsibility and limiting government involvement. To me, this issue is akin to outlawing spanking. Some studies have shown that spanking is not good for children. Should the government criminalize it ? I don't want the government telling me how to raise my kids - and that includes not telling me I have to stay married - whatever good intentions may exist.

Posted by: Mark Miller at September 1, 2004 12:04 PM

"My point is that divorce is a very personal decision and it should be discouraged based on the law (which I think it is) but not by making specific requirements such as 'both people agreeing'."

I think this is the main difference - you think the status quo is acceptable, and I (and smmtheory) don't. You also think that divorce is currently discouraged based on the laws, and we don't. I don't know how you can claim that no-fault divorce is discouraging towards divorce. The only thing less discouraging would be if we adopted the Muslim rule that a man could divorce his wife just by repeating "I divorce you" three times. I also don't understand how you can both discourage divorce by law, but not have any specific requirements - how else can you discourage it?

Also, the 20% figure was just to give a general idea, not to be precise about it. i.e. I think 50% is too high, and 0% is not reasonable, so I settled for a number in-between. If we changed the laws and the divorce rate went to 30% from 50%, I'd be pretty happy.

Posted by: Mike S. at September 1, 2004 3:51 PM

I think this is the main difference - you think the status quo is acceptable, and I (and smmtheory) don't.
---- Close. I think it's tragic. But that doesn't mean that I'd accept any or all measures which would result in a lower divorce rate.

You also think that divorce is currently discouraged based on the laws, and we don't. I don't know how you can claim that no-fault divorce is discouraging towards divorce.
---- My point is that the legal costs and additional responsibilities that go along with divorces - especially where children are involved do not make it exactly fun. (although in some cases, it can make for a significant financial windfall for the person who earns less because of the law which say that people should not experience a change in lifestyle due to a divorce. Now that's a law that needs to be changed and it doesn't only apply to women - ask Larry Fortensky (Liz Taylor's ex)).

The only thing less discouraging would be if we adopted the Muslim rule that a man could divorce his wife just by repeating "I divorce you" three times.
----- I'm sure the Muslim divorce rate is lower than 50%. Isn't that a good thing ? Of course that may have something to do with the fact that Muslim have no way to pursue a divorce.

I also don't understand how you can both discourage divorce by law, but not have any specific requirements - how else can you discourage it?
----- I don't understand how you can say that requiring both people to agree to divorce is discouraging it. Also, I do think it should be 'socially' discouraged - sort of like pre-marital sex or smoking.

The difference is that you want couples to remain married - a lower divorce rate - whatever it takes to accomplish that. I want couples to WANT to remain married. I want couples to know the harm they are doing by getting divorced. I want them to have as much knowledge and support as possible BEFORE they get married. I 'd agree that having a waiting period before divorce and even a longer one where children are involved. But I stop short of requiring couples to stay married where one or both of the people does not want to be there. I don't see how that helps children - only the divorce rate.

As an example of where we differ, I suppose that you would support laws to encourage (if not require) young women who become pregnant out of wedlock to marry the biological father - and probably prior to the birth. I would not support such laws. I'd actually support laws that require pre-marital counseling in those scenarios before a marriage was allowed.

Posted by: Mark Miller at September 1, 2004 4:44 PM

Mike wins the argument hands down -- marriage was "created" by states and religions for the benefit of children (and the women who raised them). As a child of divorce, I know too well the emotional anguish, the terror of being ripped from family and town by a mother who had to leave to find work elsewhere, and missing my father.

Children do not adjust easily and quickly to this loss, just as the death of a parent is always a wound.

Something else happens to children of divorce; they are devalued because they are now a reminder of the failed marriage and the hated ex-spouse, not the expression of shared love.

No-fault divorce just allows the least mature marriage partner to indulge him/herslf at the expense of the rest of the family.

If divorce involved shame and penalties for breaking vows, as in previous centuries, there would be much more effort into making marriages work.

Posted by: Margaret M. at September 4, 2004 1:24 PM