How appropriate that Justice Alito brought up cell phones in the recent Supreme Court hearings on the marriage cases. Because these days it seems like it is easier to get out of a marriage than it is to get out of a cell phone contract.
It is no secret that marriage is in a state of severe crisis in America. And while academics, statisticians, and pundits may quarrel about the exact divorce rate or its causes, no one would deny that the widespread legalization of no-fault divorce beginning in the early 1970s saw an explosion of divorce in this country.
Yet as social conservatives, and even many liberals, wring their hands about marital and familial breakdown, few seem to question whether our experiment with treating marriage like a restaurant experience—order what you like and send it back if you change your mind—is worth reconsidering.
Instead, no-fault divorce has become an assumed feature of the landscape of unbridled American freedom. Whereas once freedom in this country meant the right to live a good life, the ability to be a moral agent in the human enterprise, the chance to chase happiness, it now increasingly appears to mean the right to do whatever you want whenever you feel like it, regardless of whom you destroy in the process.
No-fault divorce is destroying women, children, and men. More precisely, divorce destroys marriage, and the destruction of marriage harms every party involved. The legality of no-fault divorce just makes it infinitely easier to hurt people. There are no two ways about it. No one comes out of a divorce a happier and more whole person.
Particularly offensive no-fault divorces are those where one spouse is protesting. In these cases, one spouse is literally abandoning the other (and frequently the children as well), despite having made public vows and having signed a contract before civil and religious officials stating their lifelong commitment to his or her spouse.
In this country you can come home from work and tell your spouse the marriage is over and he or she can do nothing but cry, and fight for the best financial payout possible. Try doing that with Verizon. Or while under contract to buy a home. Or with your gym membership. You’ll get laughed at.
Eighty percent of divorces are unilateral. The legal sanctioning of human abandonment must end.
The Feminist Case against No-Fault Divorce
It’s true that we can thank women for no-fault divorce laws. They fought hard in the 1960s and 1970s for the right to be freed from that terrible, hierarchical construct that is marriage. In 1970, California was the first state to fall, triggering a nationwide no-fault domino wave. Feminists like Betty Friedan, who once called marriage a “comfortable concentration camp” from which women should be freed, were jubilant. And they got their wish. Each state that subsequently enacted no-fault divorce laws saw immediate spikes in divorce rates. Surprise!
Yet twenty-seven years later, even Friedan admitted, “I think we made a mistake with no fault divorce,” recognizing that no-fault divorce had led to “unintended consequences” that adversely affected women. That same year, the president of the New York chapter of the National Organization for Women, founded by Friedan, made the case against no-fault divorce in the pages of the New York Times. New York was the last state where it had not been legalized. New York fell four years later, making our country a fully no-fault nation.
The reason for feminists’ about-face on no-fault divorce has largely to do with the reality that no-fault divorce, especially unilateral no-fault divorce, has a disproportionately negative economic impact on women.
Often, men can use custody of the children as a weapon against women. In a perverse game of mental manipulation, the man will agree to forgo a custody battle if the woman agrees to a smaller financial settlement, leaving the woman torn between seeing her children or supporting her children.
One study found that only 37 percent of women retained ownership of the family home under no-fault divorce, versus 82 percent under fault divorce. Another study, conducted by Professor Betsey Stevenson of the Wharton School of Business, found that in states that allow unilateral no-fault divorce, spouses tend to show a lower level of willingness to make financial sacrifices that invest in the future of the other spouse, such as helping to put that spouse through school for a higher degree.
So if you’re a married women, under unilateral no-fault laws your husband is statistically less likely to support your decision to go to law school or get your masters degree. Another study at the University of Michigan found that divorced women are more likely than men to lose their health insurance after a divorce, and to live in poverty more generally, with 22 percent of post-divorce women falling into poverty versus just 11 percent of men.
Perhaps most significantly, no-fault divorce laws reduce female choice when it comes to work-life balance. Women are far and away more likely to be second-earners, and women overwhelmingly want to be second-earners, especially when children come. Yet under no-fault divorce, a woman can find herself essentially a single mom, drained of family resources by court costs and lawyer fees, and suddenly required to work against her will and sacrifice time with her children. Her former spouse can direct money that was rightfully hers, even if she did not work outside the home full-time or at all, toward a mistress and her children.
Many women hedge against finding themselves in such a situation by working outside the home even when they do not want to, so that if they find themselves abandoned by their husbands, they at least have professional skills that are current.
By making it harder for a man to abandon his wife and children, eliminating no-fault divorce lowers a woman’s odds of winding up alone and poor, fighting for the right to tuck her children into bed each night. But it also increases the odds that her husband will invest in her passions and interests outside the home, even as children make pursuing those passions more challenging.
Eliminating no-fault divorce laws increases women’s wellbeing as well their spectrum of choices. It is the feminist thing to do.
The Pro-Father Case against No-Fault Divorce
The rights of fathers are a frequently overlooked part of divorce. This is unfortunate because currently, divorce (especially unilateral no-fault divorce) is largely used against men. In Stevenson’s words, “On balance, unilateral divorce favors those who most want out of the marriage, which more often than not are women.” Women are more likely to be worse off economically as a result of divorce. But men are more likely to be the disadvantaged party protesting the divorce.
A full two-thirds of divorces are initiated by wives. Among college-educated couples, 90 percent of divorces are initiated by women. In child custody cases, mothers are awarded custody 70 percent of the time. Joint custody is granted 20 percent of the time. In 40 percent of all child custody cases, the father is completely barred from seeing his children. This certainly includes cases where the father has been abusive and there are good reasons to keep him away. But the courts are heavily biased toward women in custody battles.
No man should ever be deprived of the right to see his children solely because the woman wants to leave and the man has done nothing wrong. And no man should have to support a woman who abandons him when he is not at fault. It’s a disgrace to feminism and equal rights to demand anything otherwise.
If men began to demand that their rights be reflected in family law, the results could be tremendous.
Men account for more than 75 percent of state legislators. Take down no-fault divorce. It is the manly thing to do.
The Pro-Child Case against No-Fault Divorce
The pro-child case against no-fault divorce can be summed up in two sentences, because really we all know that divorce wreaks havoc on the lives of children. Divorce makes children worse off emotionally and economically, in addition to raising the odds that children from broken homes will break up their own homes as adults (and fall into crime, drugs, become a teen mom, get sick, pick up smoking, have a stroke…and die young). By making it easier to break up a home, no-fault divorce only makes it more likely that parents will commit this injustice against their children.
Above all, divorce strips children of their human right to a mother and a father bound in a permanent bond to each other and to them.
Stand up for the young and vulnerable. End no-fault divorce. It is the loving and compassionate thing to do.
So there we have it. No-fault divorce helps no one and hurts everyone. So why is it still legal? This is not 1960. Women do not “need” marriage anymore, at least for financial stability, so they don’t need to enter prematurely into marriages that they then won’t be able to get out of. Couples who want out of a marriage because the spouse is abusive or unfaithful would still be able to get a legal divorce. And maybe, just maybe, if you make it harder to end a marriage on a whim, people will approach marriage with the gravitas it, and especially the children it produces, deserve and need to thrive.
Let’s gut our nation’s no-fault divorce laws. It’s the human thing to do.
Ashley McGuire is editor-in-chief of the online women’s magazine AltCatholicah. This article has been republished from Public Discourse with permission.