Our Sunday Visitor

SOCIETY

For the kids' sake

Behind new moves to repeal 'no-fault' divorce laws -- the reality that breaking up is hardest on the kids

By Maria Ruiz Scaperlanda

Divorce is a painful and devastating ordeal for the spouses. But in the majority of cases, minor children are involved, too, multiplying the pain.

But while everyone agrees that breaking up is hard to do, there is no consensus on what to do about it. What is agreed is that there is a problem in divorce, American-style.

In the United States, divorce rates -- already double the rate of any other Western country -- doubled again from 1965 to 1985. While the rate has leveled off since 1985, it is still estimated that 40 percent of all marriages will end in divorce.

Proposed legislation in Michigan leads what appears to be a renewed interest across the country to rewrite the "no-fault" divorce laws currently on the books. Similar proposals are under review in Iowa and Illinois, and legislators are talking about toughening divorce laws in Idaho, Georgia and Pennsylvania.

Before 1969, spouses who wanted out of their marriage had to demonstrate their partner's emotional or physical cruelty, adultery, drunkenness or desertion.

But all that changed when then-Gov. Ronald Reagan of California signed an unprecedented divorce law that became popularly referred to as "no-fault" divorce. The law allowed couples in contested divorces to split up without offering any reasons.

Within five years, 45 states had followed California's lead and had eased restrictions on divorce. Today, all 50 states have no-fault-type laws on the books.

With either spouse able to cancel a marriage at any time for any reason, the marriage contract is easier to break than one involving a home, a car or a job.

Guilt-free

While no-fault laws cannot solely be blamed for skyrocketing divorce rates, Harvard Law School Professor Mary Ann Glendon argues that current divorce laws feed a casual attitude toward divorce.

Glendon, 56, author of "Abortion and Divorce in Western Law" (Harvard University Press, 1987), is a member of the Pontifical Academy of Social Sciences and was the head of the Vatican's delegation to a United Nations conference on women held in Beijing last September.

"When that term -- no-fault -- came into use in the 1960s, it was just around the same time that the psychotherapy world was telling people that they shouldn't feel guilty about anything," Glendon told Our Sunday Visitor.

"The no-fault movement played into a general cultural climate of irresponsibility. People started getting the idea that nobody was responsible for divorce and nobody was responsible for what happened after divorce."

Glendon believes that it is unfortunate that the term "no-fault," borrowed from no-fault auto-insurance law, ever became associated with divorce. While changes in divorce law succeeded in taking the courts out of the business of finding fault, she added, it also affected people's attitudes about the consequences of divorce.

The proposal being considered in the Michigan legislature would change that. The bill, revised after a series of hearings, is part of a package that will require counseling before marriage and divorce, alimony schedules for people married more than 10 years, and parenting plans in divorce. If both partners agree to a divorce, the no-fault system would still apply, though consenting spouses with children would have to go through counseling.

The Michigan proposal would also provide a financial incentive for marriage partners to go through a counseling session before tying the knot. A marriage license for those who get counseling would cost $20, for others $100. The measure would also mandate a 30-day waiting period before marriage.

If the Michigan proposal becomes law, a spouse seeking divorce from a partner who objected would have to obtain counseling and prove either adultery, physical incompetence, three years of imprisonment, two years of desertion, drug or alcohol abuse, "significant or repetitive physical abuse" or "significant and repetitive mental abuse" of spouse or children.

Opponents of changes in current divorce law argue that it will create a return to courtroom parody, deserted families, invasion of privacy and more abuse of women and children.

But proponents point to the fact that domestic violence has risen steadily despite no-fault divorce and tougher laws against abuse. And even in families without abuse who split up, children suffer a devastating financial impact. According to the Census Bureau, the median income for a married couple with children in 1994 was $47,244; for a household headed by a single mother it was $14,902. Experts say households with children suffer, on average, a 30 percent drop in income after divorce.

Studies also contend that children of divorce have a two to three times greater risk of dropping out of high school, becoming delinquents, having out-of-wedlock children or getting divorced themselves.

Glendon advocates changes in divorce law that address the economic consequences of divorce. She supports a "children-first" principle that gives priority to making sure that the custodial household -- where the children are primarily being raised -- is on sound financial footing. In 9 out of 10 cases, women have the responsibility for child care after divorce.

Studies show that the first year after divorce, men's standard of living rises 42 percent, while that of women and their children drops 73 percent.

"If those statistics were the other way around we would see less divorce," Glendon said. "My theory is that if you really made the cost of divorce fall evenly on men and women then the divorce rate will go down."

Ultimately, however, Glendon questions whether a law can change the way society thinks about divorce. "I would put more faith in things that strengthen marriage," she said. "Divorce is the death certificate for a relationship that has broken down. What we really have to get at if we want to address this problem is the causes of marriage breakdown."

Keith and Tammy Kaiser agree.

The Kaisers, co-authors of " Incredible Gift: the Truth About Love and Sex" (Our Sunday Visitor, $8.95), want to begin by educating teenagers and couples in marriage-preparation courses.

Keith, who said he still carries scars from his own parents' divorce, believes that if marriage is, as Catholics teach, a sacrament, then "God is the source, the power, the strength that's going to keep that bond together when things get tough."

Perspective

While laws are helpful in how they set the parameters, Kaiser said, the answer to the high divorce rate is not in the laws but in a change of perspective on marriage.

He stresses the need to emphasize the permanence of the bond of marriage. "It needs to be understood," Kaiser said. "It needs to be proclaimed."

Acknowledging that in his nine years of marriage life has not always been picture-perfect, Kaiser added, "We know the strength for our marriage is God's love, and we know that God and His grace will be able to take us through. We need to communicate that message better in the Church."

It is normal for couples to have a downtime in their marriage, Kaiser remarked. And for those struggling through separation, he added, "I would hold out the hope for them of God's healing grace, the hope that God can bring you through it -- that He will bring you through it if you rely on Him."

Perhaps the most unpopular solution to unraveling the causes of divorce in our culture lies at the heart of the matter.

As Glendon concluded, "Like so many of our problems, the answers are going to be in the culture, and in the minds and hearts of individual men and women." q

Scaperlanda writes from Norman, Okla.

HEADLINES FOR MARCH 10

Divorce American-style (editorial)

Cuba's action against mercy mission draws outcry

A Catholic by any other name . . .

High in the saddle, with love

Where Serbs and Muslims study love

The light of Vermeer's world (feature of Jan Vermeer's artwork, including five paintings)