A new movement is on the horizon to do away with the current
divorce laws in many states which allow for "no fault"
divorce. This new proposed legislation (introduced in several states
during the past few months) is designed to make divorce harder by
forcing divorcing parents, with minor children, to litigate and prove
fault before a divorce can be granted.
Some legislators, mindful of public relations, disguise this
attempt by calling it "divorce reform".
In reality what this is attempting to do is force people to
stay married. Their
rationalization is based on the belief that divorce causes problems in
children and therefore if adults are not allowed to divorce or, if
divorce is made very difficult to accomplish, people will stay married
and children will be the beneficiaries of this legislation.
On paper this concept may look good.
However, as a family law attorney, practicing for over
twenty-two years, I can tell you that advocates of doing away with
"no fault" and making divorce harder to achieve only creates
a more acrimonious and volatile relationship between parents which
invariably hurts their children even more.
are not sought by people because "no fault"
makes it easier."
by Richard S. Victor
Just think about it.
Divorces are not sought by people because "no fault"
makes it easier. In fact,
divorce is a very difficult remedy
sought by one or both adults who have found that because of
interpersonal relationship breakdowns or betrayals, abuse, etc., their
marriage relationship disintegrated.
Divorce is a remedy to that breakdown, not the cause.
Proponents of this new "divorce reform" legislation
have asked state legislators to pass laws forcing a husband and wife
to battle each other in court, to prove that one, or the other, was at
fault because of serious misconduct before a divorce can be granted by
the court. This would
mean that a mother or father would
have to hire an attorney, private
gators, etc., to "dig up the dirt" and air thedirty laundry
of a family in order to win their case.
Invariably, this would require one of the parties, or both, to
effectively destroy the other, through the court system, in order to
prevail. Once this is
accomplished, both parties, if they have minor children, would have to
go back to work and mend their differences in order to properly parent
That is an impossible task!
The costs associated with litigating fault divorces (both
emotional and financial) would effectively destroy any trust or
civility which otherwise would have occurred between two adults, who
must parent the same children. The
children will be far greater victims of these "divorce
reform" laws because the rules would be that a family has to be
destroyed, in open court, before it can move on.
Although these laws reflect
and reinforce certain political and religious philosophies regarding
the sanctity of marriage, they do little to deal with the reality of
the American Family as it exists today.
As much as we may want to,
we will never be able to legislate morality.
Marriages break down not because the divorce laws are easy but,
rather, because of conflicting interpersonal relationships between
people who live in a most complicated and difficult society.
Adults today face pressures unheard of in generations past.
Deciding to divorce, especially when there are young children
involved, is never easy. People
who make the ultimate decision to divorce, have usually thought long
and hard about all of the alternatives available and only choose
divorce when no other remedy is palatable in view of the facts and
circumstances of an individual's own case.
Instead of making divorce
laws harder, which will only line the coffers of divorce lawyers,
private investigators, and other individuals, who will be forced to
"dig up the dirt" on one spouse or the other, we should use
our energies to help families who are going through these emotional
conflicts and difficulties which face the American Family today.
This may not stop the divorce, which ultimately would be
inevitable because of the interpersonal relationships between the
adults, but it can help parents going through the divorce help
themselves and their children during the process and for the years
which follow the divorce.
As a former Chairperson of
the Family Law Section of the State Bar of Michigan, I have been
interviewed regarding my opinion on proposed legislation within the
State of Michigan, to do away with the "no fault" system.
My response is that although I wish we can make everything
alright by passing laws to protect the sanctity of marriage and
family, I realize that it just is not possible.
Proponents of the divorce reform packages being introduced
throughout the United States must realize that the answer to these
problems cannot be found by punishing adults and children who find
themselves in a dysfunctional and bad marriage. The reality of abuse, distrust, betrayals, etc., is
unfortunately a human reaction within the human condition.
We must assist people in helping them deal with these problems,
not punish them and their children when they occur.
It is true that some
statistics will show that children of divorce have a higher rate of
delinquency, drug use, and emotional disfunction.
However, there are no statistics to tell us whether or not
those same children, and possibly even more, would suffer the same
fate if they were forced to live in a home where abuse, disfunction,
emotional conflicts and cruelty exist because their parents were
precluded by law from getting a divorce.