“Divorce law in many states now is fundamentally unjust. Men and women who have invested their very lives in the financial, social, and emotional welfare of their families can be left high and dry if their spouse wants a divorce and they do not. More specifically, men and women who have honored their vows, have not broken the marital contract, and wish to save their marriage generally do not get any special consideration when it comes to the division of property and custody – even if their spouse has engaged in adultery. This is patently unfair. Fortunately, this proposal would remedy this injustice by taking into account responsibility for a divorce when it comes to dividing marital property and child custody.” –Dr. W. Bradford Wilcox, Director of the National Marriage Project
If a husband leaves his wife and children, to move in with a younger woman, does he deserve to get 50% of the family’s assets? If a mother has an affair and files for divorce, should she be able to get custody of her children and live with her new lover, plus receive child support and half the value of the family house? These scenarios and numerous variations of marital breakdown are routine and ever more harmful to minor children.
The present system allows no recourse for the wounded child, for the injured spouse, or for the troubled and suffering marriage. It actually encourages and rewards marital misconduct and neglect of the couple’s children. According to the Family Research Council, 54% of American teenagers live in broken families where Mom or Dad, or both, have rejected the other biological parent either by divorce or a failure to marry.
Prior to 1970, a divorce could only be granted if one spouse proved the other was guilty of a major fault: abandonment, adultery, abuse, felony criminal activity, etc. Present divorce law, known as No Fault Divorce in all fifty states, simply requires one spouse, wife or husband, to declare the marriage is “irretrievably broken” thereby empowering that spouse to file for divorce unilaterally, even if the other spouse is opposed. Indeed, in four out of five divorces, one spouse wants to preserve the marriage according to Divided Families by Andrew Cherlin and Frank Furstenberg.
Therefore, a more appropriate term for No-Fault Divorce is Unilateral Divorce. Unlike other legally binding contracts in America, current law under No Fault Divorce always sides in advance with the spouse seeking to break the contract. Arguably, No Fault is also unconstitutional. First, marriage is a contract between two people, which should be protected by the Constitution’s “Obligations of Contracts (Article 1 Section 10).” Secondly, the 5th and 14th Amendments assert that no one shall “be deprived of life, liberty or property without due process of law.” How can there be “due process” if the spouse opposing divorce always loses—typically without redress for the other’s breaking of the contract?
Thirdly, life, liberty and property are lost in divorce. One spouse typically loses regular access to his/her children. A child sees one parent only two out of 14 days. Together, the couple and family lose property and the life of shared love to which they once aspired and contracted in their wedding “I do.” Children, too, lose life and liberty. A child’s once married parents become adversaries dividing the child’s parental time, rights, and assets—often with resentment and malice. Fourthly, No Fault restricts religious liberty guaranteed by the First Amendment, especially since most couples marry in houses of worship. Civil courts disregard the religious precepts and contractual agreements under which couples marry, such as the Catholic canon of marriage indissolubility. Finally, No Fault denies spouses Constitutional protections under the Seventh (right to jury) and Ninth (unenumerated rights) Amendments.
Destroying one’s marriage and home is the worst possible legacy to bequeath one’s children, who need a married mother and father to assure well-being, safety and improved chances of success. Some children of divorce fare well, but many more are at risk. Children of divorce almost all cohabit as adults, and most unwed births are to cohabiting couples. Cohabitation has increased seventeen-fold from 430,000 couples cohabiting in 1960 to 7.5 million in 2010. Unfortunately, 90% of these relationships fail, either before or after the wedding. Similarly, unwed births, have soared 8-fold from 225,000 to 1.7 million, most of whom are publicly subsidized. Taxpayers pick up the tab, unaware that divorces fueled cohabitation and unwed births.
For many kids, having divorcing or unmarried parents is the equivalent, of parental neglect. Often it means child abuse. Sound extreme?
Consider this analysis: “Recent studies demonstrate convincingly that while many adults claim to have benefitted from divorce and single parenthood, most children have not. Children living with one parent or in stepfamilies are two to three times more likely to have emotional and behavioral problems as children living in two-parent families. A parent’s remarriage does not seem to better the odds” noted Hillary Rodham Clinton, as First Lady, in her 1996 book, It Takes a Village. Children of divorce are three times as likely to be expelled from school or to get pregnant as teenagers as a child from an intact home. They are five times more likely to live in poverty. These are disturbing examples of child neglect.
Such children are also more apt to suffer physical abuse. “Children of divorced or never-married mothers are six to 30 times more likely to suffer from serious child abuse than are children raised by both biological parents,” according to a Heritage Foundation report, “Marriage: The Safest Place for Women and Children,” by Patrick Fagan and Kirk Johnson. Another Heritage study reports that children of divorce are 12 times more likely to be jailed than those from intact homes, and children of non-marriage are 22 times more apt to be incarcerated
No wonder American kids perform poorly in international academic comparisons. Their shattered home lives diminish their capacity to learn and develop. TIME reports that U.S. kids score 487 on math tests compared to 540 to 600 by Asian kids in South Korea, Taiwan, Hong Kong, Singapore and Shanghai. Why? TIME doesn’t say, but Asian families are largely intact, while Americans are mostly broken. Only 2% of Japanese children are born out of wedlock, vs. 41% in the U.S. Another 23% of American kids experience parental divorce. If America is going to compete in a global economy, it is essential to rebuild the institution of marriage.
Statistics do not reveal the pain of divorce for children. Michael Reagan, the adopted son of Ronald Reagan and Jane Wyman, wrote about his parents’ divorce in Twice Adopted:
“Divorce is where two adults take everything that matters to a child – the child’s home, family, security, and sense of being loved and protected – and they smash it all up, leave it in ruins on the floor, then walk out and leave the child to clean up the mess.”
Ironically, Michael’s father, as Governor of California in 1969, signed America’s first No Fault Divorce Law that would sweep through state legislatures into law in less than a decade. While divorces nearly doubled in the 1960s, they soared another 86 percent from 639,000 in 1969 to 1,189,000 by 1980. President Reagan later told Michael that his signing the first No Fault Divorce Law was his “greatest regret” in public life.
According to the Heritage Foundation, each divorce, which involves one child on average, costs taxpayers $20,000 for welfare, food stamps, day care and housing subsidies, the Earned Income Tax Credit, etc. Census data recently estimated that there were 1.24 million divorces in 2009. At $20,000 each, divorce costs taxpayers at least an additional $25 billion per year. Of course, the cost of the pandemic of broken families to the nation is far greater and deeper than mere taxpayer dollars. For example, “A divorced man will live 10 years less than a married man.” assert Linda Waite and Maggie Gallagher in their book, A Case for Marriage. A divorced woman lives four years less. According to the Family Research Council, a child of divorce lives five years less.
To create a more just law, consider these questions:
1. Should the responsible spouse who wants to preserve a marriage in an unwanted divorce receive at least 50% of child custody time?
2. Should the responsible spouse receive between 60% and 100% of family assets, with a judge deciding the appropriate final split?
3. Should each parent in a divorce be considered “fit” and allowed at least one-third time with their children rather than standard visitation of only every other weekend?
4. Do children need substantial access to both parents even in divorce?
Ron Grignol and Dr. Michael Ross advance these premises in their article, “Broken Family Law: Guidelines and Fixes,” published in the Summer 2011 issue of FCS Quarterly.
What we propose is a new standard called Responsible Spouse Guidelines.
Responsible Spouse Guidelines
In the November 2011 issue of First Things, editor R. R. Reno quotes Barbara Dafoe Whitehead in her 1998 book,
The Divorce Culture:
The truth is that divorce involves a radical redistribution of hardship, from adults to children.
Acknowledging the “devastating” damage of No Fault Divorce, Reno concludes reluctantly, “So, yes, people today want to be able to make their own lifestyle choices which is why it is probably politically impossible to restore the old divorce laws.” Responsible Spouse Guidelines recognize these political realities. We believe they will cut divorce rates in half, reduce cohabitation, and provide next best outcomes for children. Guidelines also safeguard religious liberty, due process and the marriage contract.
The elimination of fault 40 ago not only made divorce easier, it removed a just and rational way of adjudicating divorce outcomes (i.e. property settlement, spousal/child support and child custody). Current divorce outcomes often reward irresponsible behavior and encourage cohabitation rather than marriage.
Without fault, property settlement became a standard 50-50 property split. Spousal support became challenging to justify. Many states made it very difficult to obtain. These substantive effects in marriage and divorce law heightened financial vulnerability for spouses who were stay-at-home parents, most often moms who limited their earning potential for the benefit of their children and family. These changes weakened protections historically guaranteed by marriage, particularly for women.
Child custody became the most difficult divorce outcome to adjudicate. Replacing fault-based standards, judicial practice typically awarded “primary” custody to mothers and granted fathers visitor status on alternate weekends and two weeks in the summer. This pattern persists with little variation despite which spouse files for divorce and whether she or he, or both, commit fault. Women file two-thirds of divorces according to “These Boots Are Made for Walking: Why Most Divorce Filers Are Women” by Margaret Brinig and Allen Douglas (American Law and Economics Review). Moms assume they will get custody of the kids, an accurate assumption, even if the mother has committed a major fault.
The current child custody standard is a vague list of Best Interest of the Child Factors that usually presume one parent is better. In practice children typically lose substantive contact with one parent. Obviously, parents serve the best interests of the child by remaining married. When divorce is unavoidable, the goal should be to assure the child of the next best outcome. While the vagueness of the Best Interest standard sparked expensive and pandemic litigation for divorcing spouses, four decades of evidence prove it has not served or safeguarded children.
How do we mend America’s broken family law system?
The following proposal provides custody and divorce guidelines, which allow a spouse to divorce unilaterally, but impose a cost to do so — fewer family assets, less child custody and no spousal support. The Guidelines give advantages in divorce settlements to the spouse who wants to remain married, while still allowing the spouse initiating divorce to obtain a No Fault Divorce. The divorcing spouse may gain settlement advantages by opting to prove their spouse committed a major fault. Although this approach permits unilateral divorce, it paradoxically reduces divorce, encourages marriage over cohabitation and achieves healthier results for children amidst the tragedy of family dissolution.
Two simple legal definitions accomplish this result: Responsible Spouse and Fit Parent. To be identified as a Responsible Spouse in a divorce suit, a spouse must:
1. Choose to remain married unless the other spouse is proven to have committed fault
2. Be without a proven fault.
The Responsible Spouse:
• Receives 60%-100% accumulated family assets
• Receives 50%-67% of child custody time (50-100% if the other parent is proved unfit)
• Receives spousal support if otherwise eligible
A judge decides the exact split in each case. A Fit Parent is one who does not abuse or neglect his/her children –almost all parents. This definition applies to married and unmarried parents. The Fit Parent:
• Receives at least one-third child custody time
The two definitions, Responsible Spouse and Fit Parent, work independently but have greater synergy when applied in concert. Together they comprise Responsible Spouse Guidelines.
Responsible Spouse Guidelines recognize only one Responsible Spouse and offer that advantage only to married couples. There may be no Responsible Spouse if both husband and wife opt to allege and then prove that each committed fault.
To allege fault is allowed only as an option to gain leverage to save the marriage or to negotiate for a larger share of custody time and assets. Relying on classic fault concepts of abuse, abandonment, addiction, adultery and felony activities, Grignol and Ross add proven intentional false evidence or testimony in recognition of the substantive role of this factor in destroying marriages.
The Guidelines take the definition of fitness and give a minimum of one-third custody time for parents that meet this standard, a provision adopted from existing Texas family law. Two conditions apply:
1. Spousal or divorce agreement by mutual consent takes precedence over the Guidelines; and
2. Clear and convincing evidence must support all fault findings.
The first condition allows either spouse to divorce but encourages mutual consent with the Responsible Spouse retaining the stronger negotiating position. Clear and convincing evidence provides a higher, more rigorous standard of proof used in civil cases involving high stakes, such as family law, and is needed to deter false claims by parents, such as allegations of fear of harm, for example, which often block the other parent from seeing their children at all. There are 1.5 million temporary restraining orders issued each year in the United States that are trivial or false – 70% of all such orders, according to SAVE (www.saveservices.org)
For married parents, the most common scenario is two fit parents, one who is the Responsible Spouse. The Guidelines require the judge to give the Responsible Spouse half to two-thirds child custody time (7 to 9 of fourteen overnights) and the other parent one-third to half the custody time (5 to 7 of fourteen overnights). Judicial discretion is limited to only 17% of the custody time. Guidelines give the Responsible Spouse at least 60% of the property settlement; the judge retains discretion to award the remaining 40% based upon individual circumstances. Only the Responsible Spouse receives spousal support if eligible.
Responsible Spouse recognition has greater influence in the divorce outcome. Judicial freedom to award child custody time and spousal property settlements is limited to percentages provided by the Responsible Spouse Guidelines. Judges may award less than one-third time to the other parent if the reasoning is justified in writing; for example, if the parent filing for divorce or proven at fault chooses to move so far away that the Guidelines are impossible to implement.
There are two cases when neither parent can be the Responsible Spouse: first, when parents are unmarried; second, when married parents prove each other committed a major fault by clear and convincing evidence. In these cases, each fit parent receives one-third child custody time while the judge decides the remaining one-third.
For the married couple, the judge decides one hundred percent of the property settlement and neither spouse is eligible to receive spousal support. Responsible Spouse Guidelines offer the following advantages over current family law:
• More spouses would avoid divorce for minor reasons and opt to resolve differences.
• Children would spend more time with the Responsible Spouse; yet enjoy substantive time with both fit parents, more than double children’s current access to non-custodial parents.
• Having the option to allege fault would allow spouses choices to deter adultery, abuse, abandonment and other faults since the law would uphold accountability.
• The Guidelines’ substantive advantages make marriage much more attractive and discourage cohabitation because the law offers married parents greater protections than cohabitating parents
• The application of the Responsible Spouse and Fit Parent definitions are self-evident, predictable and non-judicial at the moment of filing a divorce. This reduces unnecessary, harmful, costly and divisive legal process.
• Guidelines reestablish due process, strengthen the rule of law, and restore religious liberty by giving the spouse who wants to retain the marriage leverage to do so.
Additional Reforms
1. Shared Parenting
Many studies indicate that children fare best with unfettered contact with a married Mom and Dad. In cases of divorce and unmarried parenting, children do best with substantive time with each parent. This is the core premise of Shared Parenting advocacy organizations such as the Children’s Rights Council, American Coalition of Fathers and Children, and Fathers and Families.
Texas has the best Shared Parenting law in the nation, giving each parent at least one-third custody time provided they are fit, with the judge deciding which parent gets two-thirds. The Guidelines start with one-third custody for each parent, but give the Responsible Spouse 50% to 67% of time with the couple’s children. The judge decides only the exact percentage. The spouse who files for divorce, or who is proven at fault, destroys the marriage. This hurts the couple’s kids disqualifying the parent as a Responsible Spouse. By contrast, the Responsible Spouse chooses to remain married because this is in the best interest of the child(ren), unless the other spouse is proven at fault. The Responsible Spouse parent is most committed to the welfare of the children.
The Guidelines offer important advantages over Shared Parenting. By giving the Responsible Spouse a legal advantage, more couples will work out their differences, preserving many marriages that now end in divorce. Guidelines offer protection in marriage which will prompt more couples to marry and fewer to cohabit. When there is divorce or unwed parenting, Guidelines ensure a child the next best family situation: Mom and Dad each have significant time and the child spends more time with the Responsible Spouse.
2. Mutual Consent
In his 2008 book, How To Cut America’s Divorce Rate in Half, Mike McManus recommended legislation requiring married parents with minor children to agree by Mutual Consent before filing for divorce. McManus asserts, in the absence of proven evidence of major fault, married parents of minors should demonstrate Mutual Consent before filing for divorce.
Before becoming the last state to adopt No-Fault Divorce in 2010, New York required Mutual Consent for married parents wishing to dis¬solve their marriage. That Mutual Consent law kept the Empire State’s divorce rate among the lowest in the nation. In 2008 New York had a 39% divorce rate compared to 56% in neighboring New Jersey and 60% in adjacent Connecticut.
Bills calling for Mutual Consent were introduced in Michigan, Oklahoma, Montana and Missouri in 2009-2011; however, none got out of committee. In two additional states legislators heard testimony on the proposal, but did not even introduce a bill. Why? As one marriage activist observed, “Mutual Consent collides head-first with America’s commitment to the individual. Individual autonomy trumps all other values.”
Responsible Spouse Guidelines incorporate Mutual Consent features by legally obligating the court to accept a spouse’s mutual agreements on divorce outcomes. The advantages granted by the Guidelines strengthen the standing of the Responsible Spouse in negotiating these outcomes.
3. Parental Divorce Reduction Act & Second Chances Act
Another proposal to reform No-Fault Divorce is the Parental Divorce Reduction Act (PDRA), legislation currently being considered by twelve states. It is promoted by the Coalition for Divorce Reform (www.divorcereform.info). This proposal would slow down the divorce process and reduce the divorce rate by:
• Requiring married parents to defer filing for divorce until they have participated in a marriage education course on the impact of divorce on children; and
• Requiring a One Year Reconciliation and Reflection Period after filling. During this time spouses must complete six hours of marriage education designed for couples in crisis, learning skills of communication and conflict resolution.
• Permitting and encouraging couples to live under the same roof. Most states with waiting periods require couples to move apart which discourages reconciliation.
Currently, 25 states allow a couple to divorce without any waiting period, or a delay of only 20-60 days. By con¬trast, Maryland requires that couples filing for divorce live apart for a year, two years if contested (which changes to a flat one year in 2012). Pennsylvania and Illinois also require up to two years, if the divorce is contested. These states had a divorce rate 34% lower than that of ten states with no or insignificant waiting periods. A year’s delay allows many couples to reconcile who would not have otherwise done so.
Elements of PDRA have surfaced in the Second Chances Act released by the Institute for American Values (AmericanValues.org/PR/20111921.pdf). Like PDRA, this proposal would require couples with children who are filing for divorce to complete a pre-filing course on the impact of divorce on children, and wait a year before terminating their marriage—a One Year Reconciliation and Reflection Period. However, Second Chances Act would only encour¬age—not require—spouses to enroll in marriage-education classes. One advantage of this approach is that it avoids the substantive and costly regulatory and enforcement responsibilities such a mandatory provision in PDRA would entail for local governments.
Second Chances Act, introduced in Minnesota, has a good chance of passage. It was written by William Doherty, a prominent professor at the University of Minnesota, and Leah Ward Sears, the former Chief Justice of Georgia. They initiated the proposal noting most divorces are unnec¬essary, “The majority of divorces (50 to 66 percent) occur in couples who had average happiness and low levels of conflict.” The need for the program became evident after Doherty surveyed 2,500 parents near the end of the divorcing process, after they had taken a mandatory divorce-education class. He reported, “In about 40 percent of couples in the divorce process, one or both spouses hold some belief that their marriage could be saved.”
In his book, The Marriage-Go-Round, Andrew Cherlin reports that America’s divorce rate is triple that of Britain or France. After five years 23% of Americans have divorced vs. only 8% in Britain or France. Why? If one spouse is opposed to a divorce in England or France the couple must live apart for five or six years, respectively, before the divorce is granted. That allows a lot of time for most couples to reconcile. By contrast, hot heads reign in 25 states with little or no waiting period, and their divorce rates are America’s highest. If PDRA or Second Chances is passed in any state, requiring a year’s wait will cool down many hot tempers long enough for reason, forgiveness, and the best interests of the couple’s children to prevail. Divorce rates will fall. Educational components will decrease them even further.
Lowering the divorce rate is, however, only one goal. Another, equally important one, is to restore justice to the system. The Guidelines require the partner who files for divorce – or who is proven to have committed a major fault – to accept accountability for the predictable harm to children, the other spouse, and the common good – with less child custody time and fewer family assets.
PDRA and Second Chances’ commendable goal is to preserve marriage and reduce divorce. They do not, however, address the situation of parents and children in a divorce. Guidelines will reduce divorce and are designed to help parents and children achieve a more better outcome with these goals:
• Ensure that children of divorce spend more of their time with the Responsible Spouse, and yet have substantial access to the other parent.
• Combat false claims by requiring higher standards of proof. By contrast, PDRA/Second Chances Act allows waiting period waivers for faults such as abuse, without evidentiary proof of harm. False claims are often used to gain unfair advantages in divorce resolution and thus circumvent the value of waiting periods.
• Offer incentives for couples to work out their differences themselves. Guidelines provide legal protections in divorce that give each spouse personal incentives to preserve one’s marriage.
• Since the Responsible Spouse will have custody 50-67% of the time, waiting periods will be more effective. States currently, decide final custody and child support early during the waiting period, often unfairly, a practice which polarizes spouses and discourages them from reconciliation.
• Encourage marriage rather than cohabitation by adding protection in the law to both husband and wife.
The Guidelines would make mandated pre-divorce waiting periods more effective by assuring the Responsible Spouse a better negotiating position to save the marriage.
Conclusions
Two years ago, economist David Goldman reported a startling statistic: “America’s population has risen from 200 million to 300 million since 1970, while the total number of two-parent families with children is the same today as it was when Richard Nixon was President.” That reality alone justifies new state laws to promote marriage—not its dark competitors, divorce and cohabitation. If states reversed course and improved No Fault Divorce, America would once again uphold marriage as the social ideal with great benefits for the common good.
Most American couples take vows in houses of worship to live together “for better, for worse, in sickness and in health, for richer for poorer till death do us part.” Three Gospels quote Jesus teaching, “What God has joined together, let not man separate”(Mark 10:9). Yet just since 1970, American courts have terminated 46 million marriages, shattering the lives of 44 million children.
Therefore, we urge state legislatures to enact two laws:
1. Responsible Spouse Guidelines
2. Second Chances Act or Parental Divorce Reduction Act
These two changes in state law would bear great fruit:
• Shrink divorce, sparing, perhaps, 500,000 children each year from the trauma and suffering of their parents’ divorce
• Strengthen marriage and reduce marital faults
• Reduce violence, crime and the costly prison population
• Boost academic achievement while reducing school failure, dropouts, and under-performance
• Reduce poor health and trauma—physical and psychological
• Add untold billions to the economy in gained productivity and economic growth benefiting current and future generations
• Heighten justice in family law and thereby strengthen the rule of law for American jurisprudence overall
• Reduce poverty and save hundreds of billions of taxpayer dollars
• Restore the American family
Ron Grignol is an aerospace engineering consultant for the Defense Department and former candidate for Virginia’s House of Delegates. Mike McManus is President of Marriage Savers, which has worked with 10,000+ clergy in 229 cities to adopt Community Marriage Policies that have reduced divorce rates an average of 17.5%, cut cohabitation by a third, and increased marriage rates. He also writes a syndicated column, “Ethics & Religion.” Dr. Michael T. Ross is an emergency physician and health care communications consultant whose divorce reform proposals have been considered by the Michigan Legislature. Dr. Ross and Mr. Grignol are President and Vice-President of Defending Our Fathers House, a 501c3 leadership group whose mission is to establish the legal and institutional integrity of marriage and family.
