Finding Fault With No Fault Divorce

Both President Bush and President-elect Clinton repeatedly mentioned family values during the campaign, but neither proposed reforms that would significantly strengthen family life. Overlooked in the headline-grabbing attention to Murphy Brown, gays, and the family-leave bill are the pernicious consequences of radical changes in divorce laws during the past 20 years.

In 1970, California became the first state to allow no-fault divorce. Since then, practically all states have adopted similar statutes. No-fault makes it possible to obtain a divorce without the consent of the spouse and without proving guilty behavior, such as adultery. California's approach was hailed by women's groups and mthers as a civilized step that would be a great boon to women trapped in bad marriages.

It hasn't worked out that way. Scholarly research does not blame the no-fault provision for the boom in divorces during the '70s and '80s -- that would have happened anyway -- but it does hold no-fault responsible for many of the problems of divorced persons, especially women with children.

MUTUAL CONSENT. Under current law, a married woman with young children cannot stop her husband from divorcing her, no matter how much hardship she and her children would suffer. Since child-support payments are often meager, she faces a bleak financial future where she must work long hours or go on welfare just to make ends meet. The plight of these divorced women and their children -- who now constitute almost 20% of all households -- is among the most serious family problems in Britain, Canada, the U.S., and many other countries.

It is neither desirable nor possible to turn the clock back to the '60s, when most states did not allow divorce without proof of adultery, desertion, or abuse. What can be done to improve the situation of these families? The no-fault experiment should be abandoned and replaced by laws that allow divorce only when both the husband and wife agree -- what is called divorce by mutual consent.

This change would greatly improve the bargaining power of the many married persons, especially women, who are hurt by no-fault. Consider a husband who very much wants a divorce and cares little about the harmful effects on his wife and children. Under present divorce law, his wife can do little to stop him, but if her consent were needed, she would have leverage. She could refuse unless the husband agrees to liberal child-support payments, a generous division of their assets, and other conditions. She need not agree until he convinces her that he would actually carry out his promises regarding child support. And she does not have to let him have his way in the marriage under threats that he will divorce her.

Children of divorced parents, especially boys, often suffer emotionally because of limited contact with their fathers. There is no perfect solution for this problem, but under the reform I propose, a mother concerned about how a divorce would affect her children could withhold consent until her husband pledged in writing to see them frequently, possibly through joint custody.

FAILED EXPERIMENT. No-fault divorce laws discourage married women from leaving the work force for several years to care for their young children, because they realize that they will need good jobs if their husbands ditch them. Under mutual consent, women would be more able to stay home for a spell after having children, if they wanted to, because they would then have much less reason to fear being left in a financial bind.

Judges now have a large part in divorce proceedings, even though they may not have enough knowledge to fit custody and support provisions to individual circumstances. Mutual consent laws would reduce their role in divorce procedures, for couples would be required to work out their own terms as part of the consent process. There is every reason to expect that privatizing divorce proceedings -- taking the judiciary out of them -- would make them work much better, just as privatizing other activities has brought improvement (Economic Viewpoint, BW--Aug. 17).

No divorce law can solve all the problems created by failed marriages. A bitter or spiteful spouse may refuse to consent to a divorce, no matter how generous the terms -- even if the husband and wife live separately for many years. This difficulty can be partially overcome by allowing a person to seek binding private divorce arbitration if the spouse has not agreed to divorce terms after several years of separation.

Most of the main changes in family structure during the past half-century cannot be reversed, for they are the inevitable result of the growth of women's employment, the decline in birth rates, and other developments I analyzed in my book A Treatise on the Family. But the widespread adoption of no-fault divorce is an experiment that failed. If no-fault were replaced by laws that require mutual consent to divorce, high divorce rates would cause much less harm to young children and to the women and men who do not want their marriages to break up.

    Before it's here, it's on the Bloomberg Terminal.