The limits of limits on divorce.

• Author: Gordon, Robert M.
• Position: Skeptical liberalism and child-centered criticism of no-fault divorce

[L]egal control of marriage has no call to deal with hypothetical

fungible legal spouses seen in the flattering mirror of the ought-to-be.

Its business is with people as they are. Its first premise should be that

the weak, the overbearing, the nasty, the selfish--those who have

failed of decent effort to make a marriage go--are least likely

prospects to rear well because of mere compulsion to stay in

unsatisfactory marriage.

Karl N. Llewellyn(1)

On July 15, 1997, Louisiana became the first state to roll back its no-fault divorce law.(2) Although a Louisiana couple can still enter a "contract marriage" terminable after a six-month separation, a couple may also choose to establish a "covenant marriage" that can be dissolved only by a two-year separation or proof of fault.(3) For all the media attention it has garnered, this new law is significantly less restrictive than its sponsors and no-fault's critics had hoped. They have pressed for laws that would eliminate the option of divorce without fault, require the consent of both parties to divorce, or extend the waiting period for divorce without consent to as long as seven years.(4)

Advocates of change argue that divorce has hurt children and that restrictive laws can help them.(5) If this claim is right, then there are powerful arguments from many perspectives for rewriting the divorce laws. Protecting children is a widely shared American value.(6) The law governing family dissolution already reflects a "children first" approach.(7) The best-known academic approach to family law also holds that "the law should make the child's needs paramount."(8) More broadly, liberal political theory embraces limitations on adult autonomy to protect children from palpable harms.(9) Helping children thus provides a widely accepted rationale for restricting divorce.

The child-oriented critics of no-fault divorce press two attacks on the current regime. Most argue that no-fault divorce has increased the divorce rate, that divorce hurts children, and hence that no-fault laws hurt children.(10) Others claim that no-fault laws hurt children by leaving divorced mothers, usually the custodial parents, with inadequate financial resources.(11) From either perspective, divorce law raises a simple question: "Are we willing to put the well-being of children first...?"(12)

These criticisms of no-fault divorce rest on a distinct vision of human nature and legal power. It is an optimistic vision, influenced by economic analysis, in which people respond rationally, predictably, and morally to changes in legal regimes. Many authors have questioned such assumptions, and one sensibility within modern political thought provides a particularly vivid contrast. Judith Shklar, Isaiah Berlin, and Michael Oakeshott ground their liberal commitments to freedom in skepticism about legal power. They suggest that because of social diversity, many legal reforms will produce losses that optimists overlook. They recognize that cultural norms and economic realities may influence people far more than law. And they argue that intractable vices often mock, and sometimes pervert, legal efforts to shape conduct. This "skeptical liberal" sensibility commends to law a modest mission--not so much stopping destructive conduct as minimizing its effects.

Taking up the invitation of a skeptical liberalism to view family life with sensitivity to its intricacy and law with skepticism about its power, this Note argues that highly restrictive divorce laws would have little effect on divorce rates, but would impose large costs on children. Contrary to the overbroad claims by some of no-fault's critics, recent research shows that while some children suffer serious harm from divorce, other children benefit from divorce, and many others suffer mostly from harms connected with divorce but distinct from it. If restrictive legislation stops helpful divorces or exacerbates independent harms to children, then it will have costs that the narrow focus on divorce obscures.

These findings suggest that in order to help children, law must be a precise instrument as well as a powerful one. New evidence suggests that law is neither: Compared to cultural and economic influences, the law has a small influence on rates of marital breakdown. This finding is a puzzle for those who insist that people rationally respond to legal incentives. Clinical observation attests to the intuition supplied by skeptical liberalism: Many people who are divorcing are conflicted, confused, short-sighted, or self-involved in ways that resist legal improvement. As a result, proposals to condition divorce on fault or mutual consent would likely encourage destructive conduct that hurts children more and leaves their parents less financially secure than current law. Legal changes more symbolic and less restrictive than those favored by many of no-fault's critics might still discourage harmful divorces and, more important, would not inflict new pain on children.(13)

Part I of this Note summarizes the argument that no-fault divorce hurts children. Part II elaborates the assumptions of this argument and offers the alternative of a skeptical liberalism. Part III shows how the facts about divorce, children, and the law confirm a skeptical liberal's intuitions that sharply restricting divorce will not help children. Part IV suggests small reforms that would not hurt children, and might help them.(14)

1. THE CHILD-CENTERED CASE AGAINST NO-FAULT DIVORCE

   Critics of no-fault divorce attack legal reforms of the last three decades.(15) Until the late 1960s, virtually every state formally permitted divorce only if one spouse proved that the other was insane or had committed statutory fault.(16) Spouses who agreed to divorce could in practice collude to "prove" fault, although this often required perjury.(17) In 1966, New York liberalized its very strict law to permit divorce based on consent after a two-year separation or on fault grounds other than adultery.(18) In 1969, California became the first state to eliminate all fault grounds and permit divorce based on "irreconcilable differences."(19) California's law actually meant that either spouse could get a divorce simply by filing for one, even if the other spouse resisted.(20) By 1985, every state allowed couples to divorce without proving fault,(21) and today only four states require mutual consent for such a no-fault divorce.(22) A system that required fault in theory and consent in practice has become one that almost always sanctions unilateral no-fault divorce.

   According to critics, this shift to no-fault divorce has hurt children by increasing divorce rates and by leaving custodial parents with fewer resources. Sharply curtailing or eliminating no-fault divorce would, on the critics' account, significantly reduce these harms.

   1. Increased Divorce

      Critics assert that when parents break up, children suffer. Some authors suggest that divorce always or almost always harms children,(23) often relying on the much acclaimed, pessimistic work of Judith Wallerstein.(24) Others recognize that divorces that end marriages "involving physical abuse or extreme emotional cruelty" can benefit children,(25) but treat such divorces as a small minority(26) or an afterthought.(27) On critics' accounts, divorce generally scars children for life.(28)

      The next step in this critique asserts that no-fault divorce has increased divorce rates. Demographic data appear to connect the rise in divorce rates with the shift to no-fault divorce. Lynn Wardle argues that "it is apparent that the significant rise in the divorce rate in the United States did not begin until the no-fault divorce movement was well-underway."(29) William Galston cites the most recent state-by-state analysis of divorce rates, which found that the average rate of divorce after the enactment of no-fault legislation was about twenty percent higher than before.(30)

      Explaining these societal trends at the individual level, critics argue that the no-fault regime has encouraged divorce by reducing its costs.(31) The expense of divorce is now lower,(32) delays are shorter,(33) and legal barriers are few.(34) As a result of these reduced costs, critics say that individuals are both more likely to engage in marriage-destroying conduct(35) and, at a given level of marital decay, more likely to opt for divorce.(36) Thus critics assert that no-fault divorce fosters divorce, which hurts children.(37)

   2. Greater Financial Burdens

      The second argument against no-fault divorce focuses on finances. Women retain physical custody of children following ninety percent of divorces,(38) and generally suffer a large drop in their standard of living after divorce.(39) This decline hurts children directly, by reducing the resources available to them,(40) and indirectly, by straining mothers psychologically.(41)

      Many authors have blamed these results in part on no-fault divorce. At the level of societal trends, critics cite both longitudinal(42) and cross-sectional(43) studies showing that women fare worse under no-fault divorce. At the level of individual behavior, the argument against no-fault assumes that mothers resist divorce while fathers seek it.(44) This ostensibly occurs because women "lose value" on the marriage market over time.(45) The fault regime gave women opposed to divorce a valuable bargaining chip: their consent. By threatening to contest a divorce, a wife could force her husband to confront the prospect of a costly, embarrassing, and uncertain proceeding, and extract a decent financial settlement as the price of an easy, collusive divorce.(46) Without at least a de facto consent requirement, critics argue, children will suffer economically from divorce.

   3. Proposals for Change

      To protect children from psychological and emotional harms, child-centered critics all aim to eliminate fast, unilateral, no-fault divorce. For families with children, the most radical measures would...