No Fault Divorce - Essay Example

No fault divorce Because I do not support the contemporary divorce, I want to find ways to curb the huge American desire for divorce. The rate at which divorce occurs in this country cannot be sustained for another thirty years without incurring unsupportable social costs and casualties. But then, I do not support legislation to restore fault to the divorce process. This is because I don not believe bringing fault to a divorce process will reduce the rate of divorce. The legislation was enacted with the intent that it will simplify the administration of divorce; it has however led to a legal system of divorce on demand. It does not however mean that the repeal or reform of no-fault divorce will effectively reduce the rate of divorce generally. Indeed, at this moment in time, I really want to believe that at this moment in time a fault requirement would do more harm than good. In the short term, the need to establish a legal finding of fault may prevent some divorces from happening, and encourage couples that are contemplating divorce to work out their marital difficulties. But the deterrent effect is likely to be weak. A lot of people do not think of divorce until their marriage is in very bad shape; by which time, the marriage will be very difficult to salvage. Moreover, the fault requirement would also be indiscriminate in its deterrent effect. Some marriages especially those that involve physical violence and abuse that rightfully should end will be preserved. Unfortunately, fault is likely to be most successful in deterring socially isolated women, often-battered wives, from seeking divorce. It would be wrong indeed if a pro-marriage policy unintentionally became a pro-bad-marriage policy, giving aid and comfort to the critics of the institution. Fault law invites unending litigation, and thus intensifies and prolongs conflict. Requiring fault would be bound to hurt the children (if there are any) who will be caught in the middle. On thing we should have learned from thirty years of high divorce, is that: When divorcing parents have legal incentives to fight, they will. And fault gives them yet another incentive. Inevitably, children will be recruited as informants and witnesses in the legal battle to establish fault. The faultfinding may also be exploited to prejudice or interfere with the child's attachment to the parent who is at fault. Of course, this ugly practice of blaming and discrediting the other parent goes on under no-fault divorce law, but fault will provide legal justification for such behavior. Moreover, establishing fault in contested cases would require more aggressive and time-consuming litigation and thus more billable hours from lawyers, therapists, private investigators, pension specialists, expert witnesses, and all the others in the divorce industry. This will create financial constraints and burdens for those who can least afford it. The Ivana Trumps of this world may have the resources to fight a protracted fault battle (and to win some of its spoils) but not the average first wife, especially if she has spent her life as a full-time wife and homemaker. Since most legislation limits fault to contested divorces involving children, children are likely to be the biggest economic losers. Marital assets will be squandered and dissipated in fault battles, leaving fewer resources for the maintenance and care of the children after the divorce. Some proponents of fault argue for higher barriers to divorce, as this in their reasoning will increase commitment to marriage. They say the harder it is to get divorce, the more couples will try to maintain their marriages right from the beginning. This argument seems appealing viewing it on the surface, but it is not so persuasive when viewed critically, especially when we consider those that will be most heavily influenced by the reintroduction of fault: the young adults approaching marriage for the first time. Today's young adults, many of who are products of divorced marriages, are more ignorant and wary of marriage than the earlier generation of Americans. Those children who grew up with divorced parents have little practical knowledge of marriage and thus are two to three times more likely to divorce than their generational peers who grew up in married-parent households. Fault law in divorce seeks to reassert institutional authority over marriage in a society where that authority has broken down elsewhere. This is an understandable response to our current plight. But the single-minded focus on fault law is misplaced. It misidentifies (and underestimates) the nature of the problem, which is not the breakdown of legal authority over marriage and divorce, but something that lies outside the domain of the law. The divorce revolution was cultural and not a legal phenomenon. It is an offshoot of transformation in history of ideas and practices regarding sex, marriage, and parenthood. This transformation involved a complex set of social, economic, and cultural factors, but a key element was the introduction of a new psychotherapeutic ethic governing family life. By this ethic, individuals had a primary obligation to pursue their own emotional well being in family relationships and especially marriage. Impliedly, a good marriage is one that promotes individual emotional well-being and a bad marriage was one that at least one spouse does not achieve the goal of having an emotional well being. Divorce used to be considered as a last resort remedy for irrevocably broken marriages, it has now become the psychologically healthy response to marital discontents. The cover story in a recent Esquire magazine said: "Divorce is good for you." The new psychotherapeutic ethic led to the social deregulation of divorce. It held that nothing; institution or individual (including a dependent child), should stand in the way of the individual's pursuit of psychological health. The consequence being that, traditional institutional authority over marriage collapsed, extralegal barriers to divorce came down, and the divorce rate began to rise steeply, with the results being what we all now know. There is a close and dynamic interplay between legal and extralegal norms governing marriage and divorce. Although they are not identical, they work in a complementary way to support a commonly shared set of values, ideas, and practices. Legal sanctions will not curb divorce in a culture where extralegal permissions remain in full play. Consequently, we must be wary of the claim that more restrictive fault law will maintain marriages the larger culture has so relentlessly put asunder. Indeed, if legal norms are radically at odds with the prevailing extralegal norms, they will be rejected as coercive and punitive, and with the aid of a clever lawyer they can be evaded. So long as Americans continue to see divorce as an individual and psychological issue that should not be interfered with by any out side institution or norms, fault law will definitely be rejected. Fault legislation has failed to win approval in every state where it has been proposed. The resistance seems to be specific to fault. There are two likely solutions to divorce problems. Both of them can be found within the cultural realm. One is to encourage those who have been the traditional teachers and norm-setters in marriage; women and clergy among them, to return to the side of marriage. Over the past thirty years, many have gone in support of the divorce culture and became the leading teachers and norm-setters in divorce. If the custodians of a marriage tradition were to shift their allegiances towards no divorce, then things might change for the better. Even thought for the moment, this looks far-off from becoming a reality. The commitment to divorce is too strong and enduring. For the most part, women remain the biggest defenders of divorce. American women today are more disenchanted with marriage than any time in the past even though the vast majority of them aspire to motherhood, they are increasingly willing to go it alone, have their babies without getting into marriage. More than 60 percent of young women ages eighteen to twenty-four agree with the statement that: "one parent can bring up a child as well as two parents." (Only 35 percent of young men agree.) Traditionally, mothers shape children's ideas about marriage and family; it is noteworthy, therefore, that today's divorced mothers have more negative views of marriage and more positive views of divorce than their continuously married or even remarried counterparts. It arises within psychotherapy, a discipline that has profoundly shaped the American way of divorce. One of the most encouraging and surprising turnabouts comes from within the discipline of marital therapy, where a serious effort at rethinking therapeutic practice is now under way. William Doherty, a leading voice in the discussion, criticizes the bias against marriage among many marital therapists and condemns the language of individual self-interest that pervades therapeutic practice. Best-selling author and therapist Mary Pipher writes: "In the late l970s I believed that children were better off with happy single parents rather than unhappy married parents. I thought divorce was a better option than struggling with a bad marriage. Now I realize that, in many families, children may not notice if their parents are unhappy or happy. On the other hand, divorce shatters many children." Reflecting on the lessons of his clinical experience, a marital therapist concludes: "If we stay in denial [about divorce's effect on children] and refuse to recognize divorce's cancerous effect on society, we may experience a shredding of the social fabric that may take decades to repair." Divorce is not a positive or liberating experience for everyone involved, many therapists have come to acknowledge. There is the possibility it may improve the well being of the spouse who seeks it, but it does nothing but damage to others: the spouse who does not want to divorce, parents, grandparents and other relatives, and especially dependent children. Research studies have identified the factors most predictive of divorce, and some researchers have developed new methods and skills-building techniques to help couples communicate and resolve differences. Follow-up studies show positive results: couples trained in these skills show lower levels of marital dissatisfaction and breakup than others who do not have such preparation. Reference 1. family-law.freeadvice.com/divorce_law/no-fault_divorce.htm 2. www.nebar.com/pdfs/public_info/brochures/no-faultdivorce.pdf Read More