Toward Better Marriage

David Blankenhorn, The Indianapolis News, 3/14/1997

The goals of reform are to lower the divorce rate and to improve the quality of marriage. The strategy is to eliminate the flagrant unfairness of the current system, primarily by giving more dignity and leverage to spouses who are keeping their marriage commitments and to couples who want to save their marriages. In Indiana and elsewhere, reformers have developed several valuable proposals. One is a longer waiting period for couples contemplating divorce. Research suggests that extending the "cooling off' or waiting period might do more to lower the divorce rate than any other single change in the law – especially in Indiana, where the current waiting period Is only 60 days, compared to two years in some states. This month, Indiana legislators are expected to consider the modest but worthy reform of extending Indiana's waiting period to one year in all cases involving minor children.

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Subjects: Marriage, Divorce

More by: David Blankenhorn

Why does the United States have the highest divorce rate in the world? One reason is that about 40 of our states, including Indiana, permit unilateral no-fault divorce: the right of either spouse to a divorce on demand, irrespective of circumstances. Divorce laws clearly affect divorce rates. Easy, unilateral access to divorce has helped to fuel the divorce revolution, with consequences for children and society that almost everyone now views as frightening. For this reason, the time has come to reform our no-fault divorce laws.

The goals of reform are to lower the divorce rate and to improve the quality of marriage. The strategy is to eliminate the flagrant unfairness of the current system, primarily by giving more dignity and leverage to spouses who are keeping their marriage commitments and to couples who want to save their marriages.

In Indiana and elsewhere, reformers have developed several valuable proposals. One is a longer waiting period for couples contemplating divorce. Research suggests that extending the "cooling off' or waiting period might do more to lower the divorce rate than any other single change in the law – especially in Indiana, where the current waiting period Is only 60 days, compared to two years in some states. This month, Indiana legislators are expected to consider the modest but worthy reform of extending Indiana's waiting period to one year in all cases involving minor children.

A second leg of reform is equally important; in cases where only one spouse wants the divorce, there would be an end to unilateral divorce on demand. Instead, in deciding whether and under what conditions legally to end such marriages, as well as with secondary issues such as child custody and dividing marital property, judges would be obligated to consider the question of basic justice, or what the law calls fault." Who is breaking the marriage promise? Who is the wronged spouse? Under no-fault, by definition, these questions are irrelevant. They should not be.

Together, these changes would eliminate the capriciousness of the current system and send a much healthier message to current and prospective couples. The message would be clear. When you say "I do," you are making a legally serious commitment. Society cares whether or not your marriage lasts. If you and your spouse cannot agree over whether and how to end your marriage, you should know that the law no longer automatically will side with whoever wants out, but instead will exercise its limited but important influence on behalf of spouses who are remaining true to their vows.

Some opponents of reform argue that children do better when their parents divorce rather than stay together in unhappy marriages. But is it really credible, or even decent, to suggest that the world's highest divorce rate is somehow good for children? Such an argument ignores a large and growing body of research evidence showing that divorce harms children. It also ignores research showing that, in a high-divorce society, not only do more troubled marriages end in divorce, but more marriages become troubled and unhappy. The goal of divorce law reform is not to force miserable people to stay together. The goal is a society in which more people have better, happier marriages.

Other skeptics contend that divorce reform will make divorce adversarial and may lead to more domestic violence. But in both of these important areas, no-fault itself probably has done more harm than good. One recent study, for example, finds that unilateral fault divorce has led to an increase, not a decrease, in domestic violence against women. In addition, current reform legislation, in Indiana and elsewhere, clearly states that domestic violence is both grounds for divorce and a crime.

Some defenders of the current system will concede that divorce is too widespread, but insist that legal reform is not the only or best answer. This argument rests on flawed logic. Even if some other reform – such as better marital preparation – ultimately proves more effective than legal reform, it does not follow that legal reform is futile or unnecessary. Moreover, it seems quite illogical to suggest that divorce laws do not affect divorce rates. Is there any other institution in our society that is unaffected by the laws that surround and define it?

At bottom, opponents of reform seem to believe that the current system is basically fair. They are wrong. The principle of unilateral divorce on demand, without regard to circumstances, is an affront to any reasonable standard of fairness. Its knee-jerk bias in favor of divorce is not only a clear threat to children, but also an insult to the very aspirations of faithfulness and mutual commitment that lead most people to marry in the first place.

Surely we can do better. Surely we ought to try.

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