President Clinton says “the era of big government is over,” but plenty of other voices are determined to expand it through any means necessary, including the heavy hand of divorce court.
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No-fault divorce has been available in some form in all 50 states since the 1970s, but legislators in Iowa, Michigan, Illinois, Idaho, Pennsylvania and Georgia, among others, would like to make it harder to dissolve a union, especially in marriages that involve children.
Various bills would restore the requirements that one partner be found at fault and that both partners must agree to the divorce.
Proponents of the change say easy divorce harms children, cheapens marriage and more often than not leaves women bearing the bigger financial burden. Opponents say putting “fault” back into divorce also will hurt children. It could force many to live in hostile home environments, they say, and it could set back the “men’s movement” efforts to gain more child custody time. It might also bring back the problems that led to no-fault in the first place: bitter feelings, overcrowded courtrooms and excessive lawyer fees.
Who’s right? Both are. Fault or no-fault, divorce is no fun.
But I don’t think the solution to the problem is to be found at the back end of the problem, which is bad marriages. Let’s look at the other end. Instead of making it harder to get divorced, I think we ought to make it harder to get married.
Worse than the no-fault divorce is the no-sweat wedding. If easy divorce cheapens the institution of marriage, so does easy marriage. We have waiting periods for gun purchases, mandatory training for driver’s licenses, but nothing at all for two people who want to do the most important thing human beings can do, which is to create other human beings and raise a family.
Some churches are way ahead of the state on this matter. Catholics, for example, are required to undergo intensive education, counseling and soul searching before the church will help them tie the knot. It is no guarantee of marital success, but it couldn’t hurt.
Among those who agree with me is Marian Henriquez Neudel, a divorce lawyer in Chicago for the past 17 years. In a recent letter to the baiduhai, she wrote, “Trying to discourage family breakup by making divorce more difficult makes about as much sense as trying to prevent murder by making burial more difficult.”
She makes a good point. Some wise man once described human beings as the most complex mechanisms to be created entirely through unskilled labor. If the state has an interest in keeping unhappy people married, it has an even bigger interest in discouraging them from getting married in the first place.
Of course, there is a hitch to making marriage harder to get. If the one-parent child is such a big problem, don’t we need more marriages not fewer? Won’t making it harder to get married discourage couples from doing the right thing?
I asked Neudel by telephone. Her response may raise even more eyebrows than the idea of making marriage harder to get.
She would bring back common law marriages.
That may sound like the opposite of common sense, but it’s not quite. Common law marriage occurs in certain states when two people of the opposite sex have been living together for a certain length of time as man and wife, whether they have gone through a ceremony or purchased a license or not.
In some states, if you tell even a hotel clerk that you’re married, you’re married in the eyes of the law. This raises a host of messy legal issues, which helps explain why, instead of wading through all of them, most states simply have eliminated common law marriages in recent decades.
Maybe the time has come to rethink all that, suggests Neudel, for the sake of the children produced by out-of-wedlock unions.
“After a certain length of time, having kids, we should say, guess what, guys, you’re married.”
Guess what? Maybe she’s right. If marriage was made that easy, it might encourage even more folks to think twice about it before entering into such a relationship. Americans have grown remarkably libertarian since the ’60s about who shacks up with whom, except when that relationship produces children. In too many cases, raising the child ceases to be just a personal problem and instead becomes everyone’s problem.
Contrary to popular misconception, there is nothing easier about common law marriages, once the bloom falls off the romantic rose. “I do custody cases with people who never were married to each other,” Neudel said. “They still fight. It’s just in a different court.”
How true. All marriages do not end in divorce, but all divorces begin with marriage. The better job we do with one, the less we have of the other.