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Opinion

The (so far very limited) move against no-fault divorce

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Beltway Confidential,Opinion,Michael Barone,Divorce,Marriage

I have long wondered why, when conservatives (and others) lament the apparent decline in the institution of marriage, no conservatives advance the notion of amending the no-fault divorce laws, which were passed in just about every state a little more than 40 years ago. It turns out, I find from the indefatigable Megan McArdle, that some conservatives are actually doing so. McArdle links to a blogpost by Rod (Crunchy Cons) Dreher, which makes reference to such efforts, which in turn links to an article by the Center for American Progress's Scott Keyes in the Washington Post. Keyes cites, with scarcely concealed disapproval, attacks on no-fault divorce advocated by the Family Research Council and the National Organization for Marriage and legislative proposals in more than a dozen states.

Keyes gives a useful history of no-fault divorce. The first such law was passed in California in 1969 and signed by the (reluctantly) divorced Gov. Ronald Reagan. By 1979, 45 states had such laws; four more passed them by 1985; and the last holdout, New York, passed one in 2010. (Why should New York be such a holdout? Well, until the late 1960s, New York allowed divorce only in cases of adultery, and the state never ratified the 19th Amendment giving women the vote. Being liberal on most things today doesn't mean having been liberal on many things going back a ways.) “No-fault divorce has been a success,” declares Keyes, and he declines to accept the widespread evidence that divorce is bad for children in most cases. He mentions in passing the interesting fact that two-thirds of divorces are sought by women (we aren't talking about same-sex marriages here), and so he characterizes any lengthening of the waiting period for divorce as anti-woman. He points out correctly that only a few couples have engaged in "covenant marriages," with stricter requirements for divorce, authorized by laws in Louisiana, Arkansas and Arizona. Overall Keyes promotes a libertarian story line: We have moved from making divorce very hard to making divorce very easy. And he points out that only a few laws limiting no-fault divorce have actually been passed -- a 2007 Louisiana law extending the waiting period for parents from six months to a year, a 2011 Arizona law allowing one party to a divorce to extend the waiting period to four months and a 2012 Utah law restoring a 90-day waiting period and requiring that parents with children under 18 must take a class before a court can grant custody or financial orders. So while there is a move against no-fault divorce, it has had very little success.

Should it have more? McArdle sees arguments on both sides. She points to research showing that, while children in high-conflict marriages seem not to be harmed when their parents divorce, children in low-conflict marriages (which would seem to be more frequent) are harmed significantly. She points out that divorce is financially disastrous to all but the most affluent parents — and that, as Charles Murray points out, divorce is not very common among affluent and educated parents. But she argues that just as European laws making it hard to discharge employees have made employers very reluctant to hire them, so making divorce harder may deter many people from getting married in the first place. And in fact single parenthood has been increasing, even as teenage births have been declining. And she argues that the stigma against being unmarried that was so strong back in the 1950s may have deterred casual divorce in low-conflict marriages then more than the non-availability of no-fault divorce. That stigma has pretty much disappeared, and so limiting no-fault divorce may not make much difference in divorce rates these days.

What goes on inside a marriage tends to be a mystery to everyone but the two spouses, and so is what causes one or both spouses to seek a divorce. My visceral feeling is that in many cases divorcing spouses, and in many more cases their children, would be better off if they had stayed together--and that society would be better off if there were many fewer divorces. I'm leery of Keyes' glib conclusion that no-fault divorce has been a success and I'm pleased that a few states are limiting no-fault divorce and that others are considering it; that will over time provide evidence on whether it's a good idea. As I wrote explaining my support for same-sex marriage in August 2011 (when, by the way, Barack Obama, Joe Biden and Hillary Clinton were all against it), “I think the institution of the family is less threatened by a few people who want to get married than by the very many more people who get divorced or who have children without getting married at all.” But I'm not sure that limits on no-fault divorce will significantly counter that threat. As McArdle writes, “Societies, like economies, are very complex organic systems. We do not understand them, much less control them with a few tweaks.”

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Author:

Michael Barone

Senior Political Analyst
The Washington Examiner