Broken Family Law: Guidelines and Fixes

“The rights of man come not from the generosity of the state, but from the hand of God.”[i]  John F. Kennedy 1961

Since John F. Kennedy spoke these inaugural words, out-of-wedlock births skyrocketed from 5.3% to 40.6% of all births (by 2008) as society abandoned marriage. In just five decades, the United States has established law and policy incentives that encourage low rates of marriage and high rates of cohabitation, non-marital birth, divorce, and broken families—less Mom & Dad and more government social services. Same sex marriage now dominates modern discourse, but as important as this debate is, it obscures how the tragedy of the decline of marriage afflicts children and parents, spouses and families and all of our society with profound consequences.

An interdisciplinary group of social scientists, scholars and legal professionals, wrote Marriage and the Public Good: Ten Principles to underscore the value of marriage in society today.[ii]  These encapsulate the rational foundation of protection that marriage provides for children, men and women and for the enduring economic, social and legal integrity of a free society.  Reason and empirical evidence tell us that the best and most cost effective social welfare agency is married parents raising their own children.

Preserving the natural family and its untold benefits to society should be a major priority for both law and public policy. Applying fundamental principles to reforms that support the protections marriage offers children, adults and the common good is the most cogent way to reverse the negative trends of the past forty years, strengthen the economy long term, and safeguard civil liberties.

The goals of reform are to support marriage, reduce divorce and cohabitation, and assure next best outcomes for children who must grow up without the benefits of married parents.  Rewarding responsible behavior is the means for accomplishing these goals.

Four Outcomes Of Divorce Law

Divorce law determines by agreement or judicial ruling these four outcomes:

1) Property settlement-division of property or assets accumulated during marriage;

2) Spousal support – a monthly sum paid by one spouse to another to make up for lost income after divorce and;

3) Child custody- the percent of time a child is in one parent’s care;

4) Child support – a monthly payment from one parent to another to support child rearing needs.

With the removal of fault based divorce, each of these four outcomes required a new basis for legal adjudication, but rational guidelines serving everyone affected by the divorce outcomes, least of all the children, were not forthcoming. Custody and support adjudications no longer based on fault often rewarded irresponsible behavior.  This now intractable pattern has lead to a rapid rise in divorce, devaluation of marriage, soaring rates of cohabitation and non-marital births, and children losing the substantive benefits of growing up with two parents.

Property settlement soon shifted to an equal 50-50 property split. Without fault, spousal support became harder to justify and many states made it difficult to obtain. The effects of these substantive changes in marriage and divorce law heightened financial vulnerability for spouses who earn less and, particularly, for parents who limited their earning potential for the benefit of the family or worked only at home. These changes weakened the protections offered by marriage, particularly for women.

Child custody became the most difficult divorce outcome to adjudicate. When these changes were occurring forty years ago, marriage was more traditional, with a breadwinner father and a stay at home or part-time working mother.  Replacing fault-based standards, vague custody guidelines emerged that measured Mom and Dad against each other in a contest of which parent was best.  Evolving judicial practice assigned “primary” custody to the parent who spent more time with the children, while granting the full-time working parent “visitation” on alternate weekends and two weeks in the summer.

Rising divorce and non-married birth rates resulted in rising single parent families and corresponding demand for government assistance. Political pressure mounted for taxpayer relief of the climbing costs of single parent families. Federal and state legislation designed to recover state welfare payments paid to single parents by collecting child support from absent parents, rapidly evolved into a publicly supported child support “assurance” policy for middle and upper income parents whether married or not.

As millions of children populated one parent homes, child support awards rose in middle and upper income levels. At the same time, total government assistance payments increased for lower income parents.  Having kids without marriage became more doable and attractive. Today, child support often exceeds the costs of raising children. This might be justified if custody, which is linked to support, was granted to the more responsible parent. Adding inflated child support to arbitrary custody decisions, however, often subsidizes irresponsible behavior and family break-up.

Regardless of marital status, advantages in child custody and support offer powerful incentives for parents who expect the courts will give them custody, to decide against marriage with the children’s other parent. After a custody determination or divorce, the parent with custody expects to see the kids regularly and often receive high child support.

As families break-up, courts usually award primary custody to one parent.  Typically, these children experience substantively diminished contact with their other parent. For millions of children growing up in the United States, their only contact with a parent is with the one who holds custody.

Changes in American divorce law outcomes over the past four decades have removed incentives for parents to use marriage as the stabilizing anchor for family relationships. Modern family life has become increasingly characterized by children growing up without two parents at home.  Cohabitation has increased seventeen fold since 1960[i] and is gaining ground over marriage for adult relationships between men and women who conceive children together. Unfortunately, ninety percent of these relationships fail.

Children whose parents cohabit or divorce typically grow up in the custody of their mothers and have limited contact with their fathers. Women now file for over two thirds of American divorces. [ii]

Given the huge benefits for children of growing up with married parents, it is remarkable that America’s courts routinely adjudicate divorce and custody without recognizing any measure of responsible behavior among spouses and parents with respect to the outcome that is best for the children.  The more responsible spouse is better equipped to handle the difficult challenges of single parenthood.  The more responsible spouse needs and deserves protection with respect to property distribution and spousal support to better balance work and child-care decisions based on what is best for the family. At the same time, children benefit from seeing fit parents a significant amount of time.

Outlined below are responsible spouse and fit parent guidelines that offer advantages in child custody, property settlement and spousal support including at least 50% of child custody and 60% of property settlement.  Fit parents receive at least one-third of child custody.

Responsible Spouse Guidelines Improve Other Reforms

This solution achieves the goals of family law reform but may be combined creatively to improve the effectiveness of at least three major reform ideas:  1) Mutual Consent Divorce 2) Mandatory Waiting Periods 3) Shared Parenting.

Mutual Consent Divorce

No Fault Divorce law in all 50 states empowers one spouse to impose divorce upon the other unilaterally. Mutual Consent law requires both spouses to agree to divorce terms before divorce may be granted (unless fault is proven) and thereby effectively reduces divorce. New York, for example, had a divorce rate of only 38.7% in 2008 under its former Mutual Consent statute; in 2010, it abandoned its Mutual Consent statute to adopt No Fault Divorce like neighboring states with higher divorce rates, New Jersey (56%) and Connecticut (60%).

Rather than adopt No-Fault Divorce, New York could have enhanced its Mutual Consent law by adding guidelines that instead would have given responsible spouses an advantage by default on each of the four divorce outcomes. Two examples illustrate this point:  Suppose a husband leaves his stay-at-home wife to live with another woman, or a wife takes a couple’s children and moves in with another man.  Under mutual consent divorce, the responsible spouses may divorce, but in the first case, the responsible mother may not get spousal support and is unlikely to receive more than 50% of the property settlement; in the second case, the court is unlikely to give the responsible father more child custody time.  Providing an advantage by default strengthens the negotiating position of the more responsible spouse. This favors the chance that the couple may choose to reconcile and the likelihood of a better parenting outcome for the children should they divorce.

Mandatory Waiting Periods

Another approach to reform requires spouses to wait a year or longer after filing for divorce before it is granted. Divorce rates in Maryland, Pennsylvania and Illinois, which have waiting periods, are about half that of the highest divorce states. Reconciliations are more likely because waiting periods allow couples to understand they may be making a mistake.

Currently, the full effectiveness of waiting periods is limited because states with waiting periods decide custody and child support well before divorce is granted. Maryland, for example, requires couples to wait a year to get a divorce and two if contested, but decides child custody within a few months, long before the waiting period expires.

If custody is decided unjustly, a common occurrence, the responsible spouse resents the legal system and their spouse, conditions hostile to reconciliation.  The spouse granted custody and child support feels vindicated and will likely harden the position leading to the divorce action. In contrast, with a responsible spouse guideline, the better negotiating position of the responsible spouse would give the other spouse more incentive to reconcile.  This would make waiting periods more effective in further reducing divorce.

Shared Parenting

Shared Parenting asserts that a child needs and does best with both Mom and Dad, even in cases of divorce and unmarried parents, but both parents must be fit. Shared parenting is consistent with empirical evidence on what’s best for children.

Texas is the only state that provides children defined time with each parent in custody determinations. Mom and Dad, if fit, get a minimum of approximately one-third custody time and the judge decides the remaining one-third.  This is about twice the average time given to non-custodial parents in other states, an outcome clearly much better for children.  The Texas statute specifies in great detail how custody will be implemented, but has no provision for giving more custody to the responsible parent. As in other states, perverse incentives often cause children to spend less time with their more responsible parent.  Although Texas children do better when married parents break-up, the law does not significantly reduce divorce or cohabitation.

The responsible spouse guidelines below incorporate a simplified feature of Texas law, giving children a minimum of one-third time with both parents, but increases this to a minimum of half time for a fit parent who is also a responsible spouse. This achieves the guideline goals of: (1) reducing incentives for divorce and cohabitation; and (2) in the tragedy of family break-up, assuring that children spend most of their time with the more responsible parent but have significant time with the other parent.

Responsible Spouse Guidelines

The proposal outlined below provides custody and divorce guidelines based upon the simple legal concepts of Responsible Spouse and Fit Parent (See Tables I & 1I  below). The Responsible Spouse designation in a divorce suit requires that a spouse must:

1) Choose to remain married if neither spouse has proven fault (Fig.1);  2) Be without a proven fault.‡

A Fit Parent is one who is not abusive or neglectful of their children. The guidelines acknowledge that property settlement and spousal support apply only to married couples.

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