Misrule of Law

“Back to the Future” is not the solution to America’s marriage crisis.

This essay began as a letter to the editor of the magazine Chronicles (a section they call “Polemics & Exchanges”). The editors styled the exchanges between Stephen Baskerville and me “Matrimony Monomania” and “Matrimony Monomania, Redux.” Consider this essay “Matrimony Monomania, the Sequel.” Thanks to Instapundit (here)!

Most “traditional” conservatives and classical liberals—as opposed to our libertarian brethren—share a consensus view on marriage: it is a vital institution consisting of the union between one man and one woman. In Western culture, this conception of marriage has served as the bedrock for stable family formation, procreation, and child rearing, all of which are indispensable to the conduct of civil society. Alternatives to heterosexual, monogamous marriage–polygamy, communal arrangements, bearing children out of wedlock, and the latest innovation, same-sex unions–have never succeeded as a model for stable family formation, procreation, and child rearing.

I had long assumed that a similar consensus obtained with respect to the availability of no-fault divorce, a feature of modern life that even religious conservatives concede “has strong champions on both the political left and right.” As I shall explain presently, I was wrong.

Sadly, many marriages end in divorce, and the consequences of raising children in a single-parent household—particularly without a father–can be disastrous. Children raised in intact, two-parent households generally perform better than those from divorced families in important respects—educational achievement, emotional development, and even social behavior. Bucknell University sociology professor Alexander Riley gathered the data recently in a cogent article titled “The Case Against Divorce” (Chronicles, June 2021).  Most people agree that divorce is an unfortunate outcome for a marriage, and one to be avoided, if at all possible, especially if young children are involved.

Sometimes, however, latent incompatibilities become apparent, not to mention marital misconduct such as infidelity, drug use, physical abuse, desertion, and so forth. Despite the best of intentions, some unions are not destined to last a lifetime.

California Governor Ronald Reagan signed the nation’s first “no-fault” divorce law in 1969, and the rest of the country soon followed. For the past 50 years, couples in the U.S. wishing to end their marriages have been able to do so without going to court to prove “grounds” for a divorce, as had formerly been the case. The existence of no-fault divorce is so ubiquitous and widely-accepted that I assumed it was noncontroversial—like other modern innovations such as workers’ compensation and unemployment insurance. It is not. In some quarters it is fiercely opposed. In fact, some opponents of the prevailing family law regime are calling for repeal of no-fault divorce and a return to the former system under which marriages, once formed, could be ended only with judicial permission upon a showing of “cause.”

I encountered a proponent of this movement, Stephen Baskerville, in a recent issue of Chronicles, where he inveighed against family court judges who “routinely seize control over the children and private lives of legally unimpeachable citizens,” apparently referring to child custody decisions and child support orders affecting non-custodial fathers in divorce proceedings. Baskerville describes child support orders as a “racket” that is “yet another dishonest, extortive, and lucrative subsidy on single-motherhood.” I was aware that some divorced fathers felt that child custody and child support orders unfairly favored their exes, but I was startled to hear Baskerville opine that no-fault divorce laws themselves “are uncontestably the most repressive government machinery ever created in the United States.”

I have not read Baskerville’s 2007 book, Taken Into Custody: The War Against Fathers, Marriage, and the Family, but his enmity for no-fault divorce is so great that he insists its abuses exceed in magnitude the WWII internment of Japanese-Americans. Baskerville elaborates in another recent issue of Chronicles (“The Sexual Left, the Welfare State, and the Divorce Revolution,” June 2021), explaining that the advent of no-fault (or what he refers to as “involuntary”) divorce laws ushered in a parade of horribles by allowing “one spouse to unilaterally end the marriage without any recognized grounds and without accepting any responsibility to the other spouse or the children.”

Leaving aside Baskerville’s often-florid rhetoric (“child-support gestapo,” children being “judicially kidnapped,” “grotesque mockeries of law,” “divorce kleptocracy,” “crooked courts,” etc.), his call for repealing no-fault divorce laws raises an important philosophical question: In a free society, should the government have the power to force two people to remain married if one of them—for whatever reason—wishes to end the marriage? Baskerville argues that no-fault divorce laws conferred upon the state “virtually unlimited control over the individual,” but what of the coercion inherent in the state telling citizens that they must remain in a marriage without their mutual consent (or upon a judicial determination that “cause” exists justifying a divorce)? That strikes me as a far greater exercise of government control over the individual.

Individual freedom consists in large part of the ability to make personal decisions and to take actions without the permission of the state. Economic transactions and employment relationships are predicated on mutual consent. Why should marriage be any different?

Critics of no-fault divorce unrealistically assume that the current regime–democratically enacted in all 50 states–could somehow be repealed and replaced with the former standard requiring proof of grounds such as “mental cruelty,” adultery, mental illness, abandonment, and the like. There is no grassroots support for such a sweeping change. Sober experts such as W. Bradford Wilcox recognize that “A return to fault-based divorce is almost certainly out of the question as a political matter.” In fact, the subject of divorce in general largely escapes political attention, according to one scholar, because of “the lack of [popular] support” for such measures. There was a time in America when divorce was both rare and highly stigmatized. Attitudes have changed dramatically, and the current laws reflect—but did not necessarily cause–that change. But even if a radical reversal of the nation’s divorce laws was possible, would it be desirable?

People enter into marriage with hopeful optimism and in good faith, but few would do so knowing that there was no escape from an unhappy union absent mutual consent or judicial permission based on narrow grounds.  Marriage, already regarded as an unattractive commitment by many young people, would become repellent if viewed as an irrevocable commitment–a potential life sentence of misery. Mutual decisions to end a marriage are not an issue. The difficulty is when one party wants a divorce and the other is content to remain married. What then? In the old days, a disgruntled spouse had to “ask” for a divorce, which the partner could either grant or refuse. Only a judge could dissolve a marriage without mutual consent. “Blame” would be determined in an adversarial legal proceeding, similar to a personal injury lawsuit. This is the status quo ante that Baskerville seeks to restore.

There are some practical questions to consider. What would happen if a judge decided that a spouse seeking a divorce did not present sufficient evidence of “cause”? Would the parties in effect be ordered to remain married, indefinitely? If marriages could not be dissolved without the consent of both parties, one of whom wished to remain married, could an unwilling participant be forced to continue against his wishes? Involuntary servitude was abolished by the 13^th Amendment, but it would exist under the guise of fault-based family law.

Baskerville responds that

Fundamental legal principles are perverted when we pretend that courts can dispense justice without defining what constitutes a legal transgression and assigning degrees of blame. This is already poisoning our larger judiciary. Restoring marriage as an enforceable contract, on the other hand, would certainly increase the marriage rate, when people see that it offers meaningful security. (Emphasis added.)

Do the wedding vows most couples exchange (“till death do us part”) constitute a legal “contract,” or are they merely an aspirational statement—part of the nuptial ceremony similar to cutting the cake and tossing the bouquet? Even if marriage is regarded as a “contract,” not all contracts are specifically enforceable; most contracts for the performance of personal services are not. Promises to marry, for example, are not specifically enforceable. If wedding vows do constitute a legal “contract,” the remedy for breach (assuming the terms of the promise are specific enough) is generally economic damages—as determined by a court. Repealing no-fault divorce laws would leave troubled marriages in the hands of family law judges—whom Baskerville denounces as “kangaroo courts”–just as they are now.  

Most of the discontent about no-fault divorce arises from financial burdens and limited access to minor children imposed on non-custodial fathers, issues which can be mitigated to some degree by pre-nuptial agreements and which do not exist in the absence of minor children. Wholesale changes to the current system of no-fault divorce laws are not necessary to address specific concerns about child support, child custody, and wage garnishment orders. Flaws in the current system can be addressed piecemeal, as Wilcox suggests. Baskerville’s agenda is more ambitious. Critics of no-fault divorce have their sights on a larger target—a legal establishment they believe has been hijacked by “radical feminists” and government apparatchiks “to encourage as much divorce and create as many fatherless children as possible.”

Unilateral divorce, opponents charge, allows women to terminate their marriages without valid reasons (“groundless divorces”), while imposing draconian obligations on hapless “innocent” fathers given short shrift by a one-sided system calculated to undermine the institution of marriage. The case against no-fault divorce, in other words, is fraught with baggage from a bitter, decades-long—and unsuccessful–opposition to the sexual revolution. In a 2008 article in Crisis magazine, Baskerville stated that “the no-fault revolution was engineered largely by feminist lawyers, with the cooperation of the bar associations, as part of the sexual revolution. Overwhelmingly, it has served to separate large numbers of children from their fathers.”

Critics of no-fault divorce laws portray them as a plot foisted by feminists to empower women at the expense of men, but fail to recognize that many divorces are initiated by men. Moreover, the evidence suggests that women in “traditional marriages”—i.e., homemakers—were the biggest victims of the no-fault revolution.

Repealing no-fault divorce laws would have a salutary effect on our culture, the family, and the institution of marriage, Baskerville contends, but the logic is elusive. He concedes that “it isn’t practical to force people to live together,” and banning divorce would allow a spouse to “simply separate (with the children) and live in permanent adultery with a new paramour.” Baskerville also acknowledges that “limiting no-fault divorce will never force people to live together.” Even strict rules against divorce can be circumvented. For example, affluent Catholics have often managed to obtain annulments notwithstanding the church’s condemnation of divorce on pain of excommunication.

So, what exactly is the point of requiring judicial permission based on proof of specific grounds for divorce? The ostensible benefit is that requiring meaningful fault (“proven grounds that are understood at the time of marriage,” in Baskerville’s words) to obtain a divorce will rectify the imbalance of power that now allegedly exists in favor of mothers and at the expense of fathers. As Baskerville stated in a 2005 article in Crisis magazine: “Marriage must protect an innocent spouse’s right to be left in peace with his or her children…. [D]ivorce reform will never succeed unless fault is tied to child custody. Because most divorces are filed by mothers, the fathers’ demands could sharply reduce divorce and the stranglehold of the divorce industry.” (Emphasis added.)

The implicit premise is that no-fault divorce has weaponized feminism and given vindictive mothers “leverage” in matters involving custody and support of minor children. Divorce often breeds acrimony and bitterness, and there is certainly great discontent on the part of many divorced men who felt they got saddled with onerous financial obligations as a result of a divorce they didn’t initiate. Various “men’s rights” and “fathers’ rights” organizations have formed in recent years to advocate equal rights for men in connection with divorce and in other areas of life.  

It should come as no surprise that unhappily-divorced men, as a group, embrace identity politics along with every other group claiming to be “oppressed” or “marginalized.” As a practical matter, however, when it comes to awarding custody of minor children, most family law courts favor the mother, and child support orders are formed accordingly. This would almost certainly continue to be the case even in the extremely unlikely event that no-fault divorce laws were repealed. 

Repealing no-fault divorce laws would have one indisputable consequence: making getting a contested divorce much more difficult and expensive, since proving “cause” justifying divorce would entail a full trial with the presentation of witnesses, evidence, and legal arguments. All litigants seeking to dissolve a marriage would require legal representation. This would further engorge the family law bar, delay the processing of divorce actions, and impose significant additional costs (in the form of increased attorneys’ fees) on individuals seeking to escape an unhappy marriage. Making divorce more difficult to obtain could also result in a greater incidence of domestic violence, a 2004 Stanford study suggests. Baskerville fails to address any of these consequences.

Whatever its flaws, the current regime of no-fault divorce makes judicial relief relatively accessible and affordable—qualities our legal system egregiously fails to deliver in other types of disputes.    

With or without a finding of fault, divorce represents the tragic failure of a marriage and the combined lives of the family it once bound together. All parties to a divorce—regardless of sex, age, or economic status—come out losers. Children often bear the greatest brunt. As one scholar laments, “Research is just now beginning to reveal how the tragedies of divorce persist into the third generation.” Despite the misogynistic rhetoric of some critics, no distinct group “benefits” from no-fault divorce. Yet the anti-feminist narrative continues.

Criticizing no-fault divorce laws has become a proxy for re-opening the battle of the sexes, except that fight is over. Second-wave feminism is a fait accompli and critics of no-fault divorce should get over it. Litigating marital grievances in court does not sound like a prescription for curing what ails us as a nation. I remember watching a TV show as a child presenting such tawdry vignettes. This was the original (1957-1962) iteration of Divorce Court, a mawkish precursor to Judge Wapner, Judge Judy, and other popular courtroom reality shows.  Does anyone seriously believe that stepping back 50 years and resurrecting fault-based divorce laws is going to solve our broken culture or bring back the halcyon era of Ozzie and Harriet (1952-1966)? This is a fantasy.

The West’s current crisis is that young people increasingly aren’t getting married at all (or are getting married much later in life) and are forgoing procreation, producing a “birth dearth.” Rampant divorce is also a serious issue. Restoring the vitality of marriage, and reducing the incidence of single-parent households, are important goals, requiring serious solutions.  Returning to a fault-based regime would not magically solve our society’s many complex problems, and it is silly to pretend otherwise.