By Emily Stimpson
Some laws reflect culture. Other laws change culture.
And that's what "no-fault" divorce laws have done.
On Jan. 1, 1970, the first "no-fault" divorce law in the United States went into effect in California. Within five years, the country's divorce rate nearly doubled, skyrocketing from 650,000 divorces a year, to more than 1 million. It's never fallen below that mark in the decades since.
According to Maggie Gallagher, president of the National Organization for Marriage, the introduction of no-fault divorce laws was "only one player" in the vast array of cultural forces that conspired to send those numbers soaring. But no-fault divorce legislation did accomplish something no other player could: It radically changed the legal definition of marriage.
Until Bolshevik revolutionaries first foisted the concept of no-fault divorce on a newly communist Russia in 1918, civil law had almost universally treated marriage as a binding contract, a permanent commitment between a man and a woman that could only be broken with serious cause.
No-fault divorce ended that with one blow.
"No-fault divorce permits any individual to divorce his or her spouse at any time for any reason," Gallagher said. "Marriage used to be much more than a contract. Now, under the law, it's much less than a contract. Whoever wants out can destroy the marriage. If businesses had to operate under the same principles as no-fault divorce, you'd find the economy wouldn't function very well."
Over the past 40 years, that changed understanding of marriage has spilled out of the courtrooms and into the culture.
"Marriage no longer means a permanent commitment," Gallagher said. "It means, 'I stay with you until I want something else,' which is what cohabitation used to mean. The idea that a person has a right to a divorce is now the norm."
But what the law did, the law can also undo. At least, that's what advocates of no-fault divorce reform believe.
The past decade has seen a flurry of attempts to modify no-fault divorce laws, starting with Louisiana's 1997 passage of legislation allowing for "covenant marriages" -- a traditional marriage contract into which couples could opt to enter and that could not be broken without good cause. Similar legislation was passed soon after in Arkansas and Arizona, but then the covenant marriage movement stalled.
Even where it was tried, said David Blankenhorn, president of the Institute for American Values, "the concept never really caught on, and, based upon what we've learned, hasn't had much of an impact."
More recently, several states have considered "mutual consent" or "modified no-fault" divorce laws, where no-fault divorce laws wouldn't apply if minor children are involved and if one party objects to the divorce. Essentially, modified no-fault would prevent one spouse from having the unilateral right to break up a family without just cause.
"Right now," explained Mike McManus, author of "How to Cut America's Divorce Rate in Half" and president of Marriage Savers, "if one person doesn't want the divorce, they can do nothing to stop it. Modified no-fault gives the person trying to save the marriage leverage. At the very least, they can force the person who wants the divorce to talk about it or go to counseling."
"Even though some divorces would still go through, at least the process would be more fair," he continued. "The law would give the person who wants to preserve the family an equal voice with an unhappy mate. Right now, the four out of five spouses who oppose the divorce can do nothing about it."
Virginia, Michigan, Utah and New Mexico have all introduced some form of "modified no-fault" or "mutual consent" legislation, but McManus thinks its best chance for passage is in Michigan. He also acknowledges, however, that even there it faces an uphill battle.
He explained: "Divorce law is a lot like the third rail. Nobody wants to touch it. It's going to affect every family. Plus, you have plenty of legislators who are divorced themselves, who left their first wives and think no-fault divorce is a great thing. Those people are not likely to support no-fault divorce reform."
Legislators' hesitancy to touch no-fault divorce law is why Blankenhorn believes the best solution for now may be a more incremental approach.
"Americans think the high divorce rate is a problem, and they know it hurts children, but they don't want to change the divorce laws," he said. "We have to make the case publicly for why no-fault divorce is a problem. But until people's attitudes change we need to try to limit its harmful effects."
Ways of doing that, he said, include passing legislation that requires longer waiting periods before divorces can be finalized and offering couples counseling that might help save the marriage. That's an option currently under consideration in Georgia.
"Some states already offer counseling to help couples have an amicable divorce, so why not offer counseling to save the marriage?" asks Blankenhorn, noting that statistical evidence suggests some couples would be willing to accept such an offer.
No reform, however, no matter how incremental, will pass anywhere without support at the popular level. And that is where Mike McManus believes Catholics come in.
"Catholics have the lowest divorce rate of any denomination. Only 25 percent of Catholic marriages end in divorce, as opposed to 39 percent of Protestant marriages. That's a substantial difference, and Catholics deserve credit for that," he said.
"But," he continued, "our laws still need to be more fair, and for reforms to go through, it's going to take the concerted support of the Catholic bishops' conferences in the states. Committed Christians are going to have to lobby for it. The concern has to be not just with marriage preparation, but with creating a marriage culture."
"Marriage is the attempt to love one other person the way God loves everyone, and that's hard," concluded Gallagher. "You need the support of a community, of a culture, to make it work. If people could do that on their own, we wouldn't need marriage."
Since the first "no-fault" divorce law passed in the United States in 1970, sociologists have had ample opportunity to discover the human and monetary cost of divorce.
Here are some of their findings.**
Children of divorce are:
3 times more likely
to be expelled from school
3 times more likely
to conceive a child out of wedlock
5 times more likely
to live in poverty
14 times more likely
to be abused
12 times more likely
to be incarcerated
Consequences of divorce on women:
of divorced women live below the poverty line, while only 1 percent of married women are in poverty.
is the annual cost of supporting divorced women and children at the federal and state levels.
**According to data collected in separate studies conducted by The Heritage Foundation and the Institute for American Values
Emily Stimpson is an OSV contributing editor.