Divorce

Divorce

E-mail debates of newsworthy topics.
Feb. 21 1997 3:30 AM

Divorce

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Dear Ms. Pollitt: 

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       On one central point, I agree with you. In "Can This Marriage Be Saved?" (The Nation, Feb. 17), you write: "[I]t's beyond me how David Blankenhorn of the Institute for American Values can campaign to make divorce more difficult." I concur. It's beyond you.
       Yet this difficulty does not prevent you from offering a full-blown theory on the subject. In your essay, you claim that those of us who want to reform no-fault divorce laws say that we are concerned about the impact of divorce on children, but we aren't. Our "real aim" is to punish innocent people and cause needless pain by imposing a "narrow" (also "conservative," "moralistic," "right-wing," "Christian," etc., etc.) ideology on them. And why would we seek to impose such an ideology? Because, it turns out, our real, real goal is "economic instability as the safety net is shredded," which is only possible if we can succeed in "explaining downward mobility as an individual moral failing." Wow!
       As if that's not pitiful enough, even our "stated goal" of lowering the divorce rate is a "nonstarter," since "empirical evidence" shows that nothing under heaven--not laws, not counseling, not waiting periods, not anything (with the possible exception of the advent of economic justice, as that term is understood by you and your colleagues at The Nation)--can possibly affect people's private decisions about whether or not to stay married.
       There is more. How dare those of us who purport to care about American values gripe about divorce, since "Divorce is an American value." In the land of the free, grown-ups do what they want to do, period. Just look, you remind us, at the roll call of even those prominent right-wing "family values fans"--you know, Reagan, Gingrich, etc., etc.--who are themselves divorced. Q.E.D.!
       To further expose our hypocrisy and bad faith, you point out that we fail your ideological litmus tests. If all of us conservative, right-wing, Christian, etc., etc., ideologues really cared about children (which of course we don't), we would not want to put them through the pain of seeing their parents make accusations against one another in divorce court. And if all of us conservative, right-wing, Christian, etc., etc., ideologues really cared about a better world (which of course we don't), we would stop trying to lower the divorce rate and start trying to improve the economic well-being of divorced women: child-support payments from divorced men, compensation to homemakers for unpaid labor, and making sure divorced mothers get to keep the house. There is a "lively feminist debate" about these latter matters, you report.
       Let me respond to each of these assertions. First, I agree with you that improving the post-divorce economic security of women, especially custodial mothers, is an important goal of public policy. I have written about this topic. So have several other people whom you accuse of ignoring the subject, including William Galston and Jean Bethke Elshtain.
       I disagree, however, with your suggestion that this is the only issue that matters. For starters, no set of post-divorce economic settlements, however justly crafted and vigorously enforced by public policy, would ever be able to eliminate downward economic mobility for millions of divorced mothers and their children. Even if you and your friends were solely in charge of family law and family policy, a society in which most marriages with children end in divorce would necessarily be a society in which many single mothers and their children would face economic vulnerability and deprivation. On economic grounds alone, then, we need to keep more than one goal in our heads at the same time.
       Second, you are right to be concerned about children's exposure to parental conflict. But you are wrong to imagine that any type of divorce law could ever be the sole, or even a major, source of this problem. Most children acquire the painful knowledge of their parents' conflicts in kitchens and living rooms, not courtrooms. It is primarily the conflict itself, the death of the parental bond, that hurts the child, not whether or not, or in what way, that conflict is aired in a courtroom.
       What leads you to assume that no-fault divorce protects children from exposure to parental animosity? You seem unaware of the news, but here is the great failed promise of no-fault: that the law siding with one spouse in a divorce dispute (whichever spouse wants out) would somehow lower conflict in divorce. Guess what? It has not happened that way.
       In part, no-fault divorce has simply shifted the legal focus of parental conflict from disputes over the marriage to disputes over money and custody. Consequently, angry divorcing parents now routinely go before judges to accuse one another of parental unfitness, child abuse, or worse--surely, from the child's perspective, among the worst possible things to hear about one's parents.
       Nor has no-fault led to any measurable reduction in post-divorce parental conflict. Even optimistic advocates of "good divorce" concede that very few divorced parents ever become friendly or even cooperative. Typically, the marriage ends, but conflicts continue. Even years after their (no-fault) divorces, several studies show that about half of all divorced couples perpetuate relationships animated by bitterness and anger.
       In short, no-fault divorce typically does little, if anything, to reduce children's exposure to parental discord, just as reforming no-fault would do little, if anything, to increase it. Indeed, insofar as the currently proposed legal changes eventually succeeded in lowering the divorce rate, the reforms that you now oppose would probably reduce children's exposure to parental warfare.
       Third, I agree that divorce is an American tradition, deeply rooted in our history and culture. I agree that some marriages should end in divorce. I do not believe that we can or should even try to eliminate divorce. I only believe that we should try to lower the divorce rate.
       Is this such a wild-eyed idea? Is it really a utopian mirage--or, in your terms, a right-wing "ideological function"--to hope that we might, through cultural debate and careful policy reforms, lower the divorce rate over time by, say, 10 percent or 20 percent? Is it "beyond" you even to consider the possibility that, while remaining a modern, free society, we might also wish to change from a society in which a majority of marriages fail to a society in which a majority of marriages succeed? Other modern, free societies (which do not permit no-fault divorce on demand) manage better than we do. The U.S. divorce rate is about 60 percent higher than British or Canadian rates and almost three times higher than German or French rates. Is there absolutely no room for improvement here?
       Fourth, it is ludicrous to claim that divorce laws do not affect divorce rates, just as it is ludicrous to suggest that, alone among human activities, the activities of marriage and divorce cannot be influenced by any external regulations or incentives. Aside from some selective quoting--you found a lawyer who assures you that in all of history (you can take this to the bank) "zero" marriages have been helped by court-ordered counseling--you do not offer a shred of "empirical evidence" for this claim. You might as well claim that business contracts are unaffected by contract law. Or that journalists' essays are unaffected by their editors' deadlines. Or that welfare policies do not affect rates of unwed childbearing (whoops, I bet you still do make that argument!). Or that professional baseball is not affected by the official rules of major-league baseball.
       No. Law influences behavior, in marriage as in every area of life. The issue is not whether; the issue is how. No-fault divorce, because it relentlessly favors whoever wants the divorce, irrespective of circumstances, contains a built-in bias toward divorce. This bias is amply confirmed by "empirical evidence": Several scholarly studies have found that no-fault divorce laws by themselves have pushed up divorce rates in most states by 10 percent to 25 percent. I believe that we can and should reduce this bias. On substance, this is where we disagree.
       But of course, from your point of view, the substance is not really the substance. Finally, that is your essay's master assumption. Don't forget, you repeatedly suggest, people like Blankenhorn only say these things. They don't really mean them. It requires an effort of translation, which you generously provide, to discern and make plain to others what these people "really" mean. These are people of bad faith. Their goal is to hurt others. They are right-wing, conservative, Christian, etc., etc. Pretty scary! Watch out!

This dialogue grows out of an article by Katha Pollitt, which appeared in the Feb. 17, 1997 issue of The Nation. To read the article, click here.