Divorce American style

Public Interest, Summer, 1996 by William A. Galston

James and Janne Hayes were married in 1941 as 19-year-old college students. They had four children. With one brief exception, Janne Hayes never worked outside the home. After 25 years of marriage, she filed for divorce under California's fault-based divorce code and was awarded the family home, custody of the two minor children, $650 per month in alimony until death or remarriage, and $175 per month in child support until the children reached adulthood.

In 1972, James Hayes filed a petition to end his financial obligations to his wife on the grounds that his financial condition had changed. (He had also remarried.) To bolster his claim, he quoted from the California Assembly Judiciary Committee Report on the 1969 California no-fault statute, enthusiastically signed into law by then-Governor Ronald Reagan:

When our divorce law was originally drawn, a [woman's] role in society was almost totally that of mother and homemaker. She could not even vote. Today, increasing numbers of married women are employed, even in the professions. In addition, they have long been accorded full civil rights. Their approaching equality with the male should be reflected in the law governing marriage dissolution and in the decisions of courts with respect to matters incident to dissolution.

James Hayes prevailed. Child support was ended and alimony cut by more than half. A year later, he was back in court and won another reduction in alimony. The judge told Janne Hayes to get a job.

An oft-told tale, but with a twist: Assemblyman Hayes was the chairman of the California Senate Judiciary Committee that drafted the no-fault statute and wrote the report he subsequently quoted in his brief. His was not an isolated case. A few years earlier, then-Governor Edmund G. Brown established a Commission on the Family, which recommended the elimination of fault as grounds for divorce. Of the 15 citizens who testified before the commission, 14 were men; 10 were divorced.

The no-fault divorce revolution of the past quarter century was not in any simple sense the product of a male conspiracy. Many women's groups, lawyers, judges, academics, and family-practice professionals strongly favored this change, on the ground that it was needed to end (as one supporter put it) "the hypocrisy of strict divorce laws administered by a lenient process." And public opinion began swinging toward more relaxed laws in the mid 1960s.

The benefits of no-fault divorce were immediate, especially for men seeking an easier exit from long-established marriages. An understanding of the costs emerged more slowly, through painful experience and the gradual accretion of research. The principal victims have been women in long-established marriages, along with minor children. There has also been a broader casualty: the idea of marriage as a presumptively permanent relationship - as a structure of incentives for individuals to contribute to the well-being of the family, and a framework of reasonable expectations of reciprocal benefits over the lifetime of the partnership. And pervasive divorce has imposed large costs on society as a whole. For example, children's post-divorce psychological and behavioral problems have multiplied the challenges facing teaching, and jurisdictions at every level of the federal system have had to invest huge sums in child-support enforcement.

Today, public opinion is swinging back toward more restrictive divorce laws. (Support for tougher laws is strong among young adults, many of whom directly felt the consequences of divorce as children.) Proposals to roll back no-fault are already under consideration in the legislatures of Iowa and Michigan, with more states likely to follow.

The casualties of divorce

We have good reason to be worried about the current state of marriage and divorce in America. To be sure, the rate of divorce has been trending upward fitfully for more than a century. Still, the rate of divorce in 1960 was no higher than it had been in 1940, and not much higher than in 1920. (There was a spike right after World War II, but it quickly subsided.) Then, between 1960 and 1980, the rate of divorce surged by nearly 250 percent. Since then, it has stabilized, but at a rate that is the highest by far in the industrialized world. About half of all marriages undertaken today are likely to end in divorce. Forty percent of all first marriages will suffer that fate, compared to only 16 percent in 1960. Upwards of 60 percent of all remarriages will not endure.

Three-fifths of all divorces involve minor children. The number of children directly touched by divorce each year has doubled, from 485,000 in 1966 to about one million today. The percentage of children living in mother-only households (headed by never-married as well as divorced women) has also more than doubled. About 40 percent of children living in such households have not seen their fathers during the past year; only one in six sees them more than once a week.

Children typically encounter difficulties in the wake of divorce. The conventional wisdom is that these negative effects are attributable to two factors that are distinguishable from divorce itself: steep income losses after divorce and intra-family conflicts before divorce. This is not entirely wrong: Pre-divorce conflict accounts for about half the observed post-divorce difficulties for boys and somewhat less than half for girls. And economic decline accounts for about half the remaining damage.