Second Chances on the Divorce Superhighway

Posted on April 11, 2012 by

As a child of divorce,* and as one who had a surprise divorce forced upon him, I read this (link downloads pdf) report, titled “Second Chances: A Proposal to Reduce Unnecessary Divorce” with interest (HT: Maggie Gallagher, writing in Human Events). Penned by a University of Minnesota professor and a two-time Obama nominee to the SCOTUS and retired Georgia supreme court judge, the report lays out the objective case that:

(a) a slight majority of divorces (50 – 66 percent) are unnecessary, “unnecessary” in the sense that these divorcing couples experience average happiness and low conflict,

(b) a lowered divorce rate would be in the best interest of children (e.g., adjusted for parental income and education, children of divorce are at higher risk of poverty, lower family wealth, higher risk of school failure, stunted educational and professional achievement, higher risk of substance abuse, incarceration, and teen pregnancy, and higher risk of physical and/or sexual abuse),

(c) our current divorce and out-of-wedlock childbearing rates cost US taxpayers estimated $112B annually,

(d) many divorces are preventable, in that about “40% of US couples already well into the divorce process say that one or both of them are interested in the possibility of reconciliation”, and (e) around 1/3 of marriages that ever experience low marital happiness “turn around”…in other words, they recover. This fraction is uncannily similar to the fraction of spouses that are open to pursuing

The report also makes several recommendations for action. The report authors suggest:

(1) requiring a longer waiting period between the filing of a divorce petition and when the divorce would be granted. Some states do not require any “cooling off period”, some a mere 20 days, and others a period of 1-2 years. The report advocates for a one-year waiting period,

(2) require a “divorce warning” to be issued from the petitioner to the respondent prior to being able to file a divorce suit, coupled with connecting the two parties to reconciliation resources,

(3) encouraging marriage counselors and therapists to adopt a more pro-marriage counseling stance (the report claimed a slim majority of marriage and family counselors are neutral-to-negative toward marriage, a factoid this author found simply astounding), and equipping clergy with better skills to assist struggling couples with marital issues,

(4) court-ordered mediation,

(5) require divorcing couples with children to complete parenting/co-parenting classes prior to being permitted to filing divorce petitions,

(6) tax rebates for marriage education, and

(7) establish centers at universities to help prevent unnecessary divorce

Analysis and discussion:

My own personal experience with divorce corroborates much of what this report discussed. My former wife had already absconded with my children across the country when she served me with divorce papers, thus her act of filing for divorce was both the beginning and the end of the divorce process. It was all over but for the court date to make it official. This single act set us both on what the report calls the “divorce superhighway”, at those speeds, there was little time or opportunity for reconciliation, even though I attempted to do so via attorney-attorney communication, 6 unanswered personal letters, the only face-to-face meeting she would agree to, and via pastoral communication. Incidentally, her Catholic priest recommended to her that she seek a divorce (and later the Archdiocese of Washington would breezily approve the annulment, after having the sac to ask me for a $500 “donation” to finance their declaring that my marriage to her never happened and my children bastards).

In short, I was one of those 40% who want to reconcile, despite all the allegations she had levelled and the bad feelings that had been built up in the months since she left, but it was as if every person and agency involved in the process either considered divorce a foregone conclusion, or had a pecuniary interest in seeing my marriage dissolved.

Moreover, the online “parenting classes” we had to complete prior to the hearing were too little/too late of a reminder that the interests of the children should come first; besides, when dealing with a former spouse who had convinced herself that her acts were in the best interests of the children, such “education” serves as a poor brake on the bullet train to splitsville.

Thus, I found unpersuasive the study authors’ recommendations to impose/extend waiting periods, impose a “divorce warning” measure prior to the filing of papers, and providing education about divorce and its impacts to counseling professionals, require co-parenting classes, offer tax rebates for married couples, and establish anti-unnecessary-divorce centers at institutions of higher learning. To be sure, these steps will probably be helpful and on that basis alone deserve to be implemented, but my sense is that, since they the measures merely nibble around the margins of the divorce problem rather than step outside the entire divorce mill framework and address root causes and social/financial/legal incentives to divorce, these measures will prove insufficient. Indeed, the report’s recommended legal language for state legislatures leaves the entire human trafficking language wholly in place, namely:

Married persons living apart, whether or not they have asked a court for divorce, separation, annulment, or dissolution, may nonetheless ask for any of the following temporary relief, in a court that would have jurisdiction in a divorce case or other domestic relations case between the parties:

a. Parenting time (i.e., child custody, visitation, access, etc.), subject to state and federal laws on jurisdiction for such cases.

b. Child support, subject to state and federal laws on jurisdiction for such cases.

c. Protection from domestic violence.

d. Spousal support; preservation of marital or community property, and fair, equitable access to marital or community property.

e. Preservation of evidence of the existence, character, and value of property, grounds of divorce, or any other issues in a future divorce or separation case.

f. Court-ordered marriage education, marriage counseling for the purpose of repairing the marriage, custody/parenting education, or mediation.

As this and likely any mother or father on the receiving end of a parendectomy knows, “parenting time” is more popularly called “visitation” for a reason, and is not likely to be enforced with nearly the same vigor as is chalimony. Have fun enforcing access to your children in the court system. And temporary restraining orders are notorious for being convenient vehicles for launching scorched-earth campaigns to separate (usually men) from their children, on the way to establishing the precedent of a domestic situation sans the other spouse that courts are loathe to change one year hence.

All these criticisms aside, a greater emphasis on reconciliation versus fast-tracking divorces to the courthouse will likely be a step in the right direction, although I think the marginal effect will be small and the entrenched interests of the divorce-industrial-complex left fully intact. Thus, in the spirit of incrementalism, I suppose I support, knowing that it will amount to a drop in a raging river.

* I was shocked to learn from the above-linked report that a child of divorce, who marries another child of divorce, has a 200% higher risk of divorce him/herself than average. Thus do the sins of the father or mother self-reinforcingly reverberate from the past through the present to the future.