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When Breaking Up is Hard to Do

The Politics of Divorce

by CHRISTOPHER BRAUCHLI

Marriage is a noose.

– Miguel de Cervantes, Don Quixote de la Mancha

Acrimonious divorce may be making a comeback thanks to the actions of enlightened state legislatures!  This does not refer to the process of splitting a finite number of children and a finite number of dollars between two parties, a process that has always had the potential to be acrimonious.  It refers to the simple act of ending the marriage.  And that’s great news for the lawyers, the private investigators and the tabloids, all of which made big bucks out of the unhappiness of unhappily married couples when acrimonious divorce was the rule.  The more prominent the divorcing pair, the bigger the bucks.  It was a win-win for all but the principals.

Until 1969, most state legislatures decreed that unhappily married couples should not be rid of one another until periods of time varying from a few months to more than one year had elapsed.   In addition to imposing long waiting periods, in days gone by the person seeking the divorce was forced to make specific allegations about the misconduct of the other spouse, allegations that were often salacious, even more often fictional and in many states, absolutely essential if the divorce was to be granted.  In those states the proof could be provided by a private investigator equipped with a camera and the ability to follow a wandering spouse into the confines of a hotel room and a non-spouse’s arms.

Unfortunately for those profiting from the divorce business, the legal system slowly acquiesced to demands that it reform, recognizing the absurdity of forcing unhappy couples to make up reasons for bringing their marriages to an end.  People thought reform made great good sense and what became known as no-fault divorces became the law of the land.

The first state to adopt no fault divorce was California under Ronald Reagan in 1969.   The last state to adopt this common sense approach to marital discord was New York in 2010.  Lengthy waiting periods and the need to fabricate reasons for the divorce became vestiges of a bygone era. If it all seemed too good to be true, it may prove to have been.

No-fault divorce was not intended to lessen the importance of marriage nor its beneficial effects.  During the 2012 presidential campaign Rick Santorum explained the virtue of marriage at a campaign rally in Iowa.  Addressing the crowd he said:  “What two things, that if you do, will guarantee that you will not be in poverty in America?  Number one, graduate from high school. Number two, get married.  Before you have children.  If you do those two things, you will be successful economically.”  Although not articulated in that particular speech, it follows that to fully enjoy the prosperity that accompanies marriage, people should stay married and the best way to insure that happens is to make it harder to get divorced.  And many states are now considering how to do that. Oklahoma is one of the  leaders in that movement.

Oklahomans know the importance of marriage as demonstrated by the fact that, according to the Pew Research Organization, 10% of all ever-married adults in that state have had at least three spouses,.  That is twice the national average.  Recognizing that, and because Oklahoma has the second highest divorce rate of any state in the country,  (you can’t have had “at least three spouses” without having had at least two divorces)  a state representative introduced a bill in early 2014 that would impose a six-month waiting period for most divorces. Another bill was introduced that would eliminate incompatibility as a ground for divorce.  Although those two  bills have not advanced, a third bill introduced a 90-day “cooling down period” following the filing of a divorce petition.  That bill has passed the Senate but has not yet been considered in the  House. Oklahoma is also considering extending the time between filing for divorce and getting a decree to six months.

In Kansas a legislator has introduced a bill that would remove incompatibility as a ground for divorce. If incompatibility is no longer a ground for divorce, divorcing couples can once again come up with creative reasons for splitting up.  In 2011 Arizona enacted a law that enables either divorcing spouse to extend the process by four months.  In 2013 three North Carolina state senators introduced a bill they called the “Healthy Marriage Act” that would replace the existing one year waiting period from the time a proceeding is begun until a divorce is granted, to two years following the date a spouse give the other spouse written notice, duly notarized, that he or she intends to file for divorce at the end of the two year period. That has not yet been enacted.

Today a steadily increasing number of people are cohabiting rather than marrying.  According to the National Health Statistic Report in 1995 39% of women in the United States between the ages of 15-44 entered into marriage as their first union.  In the 2006-2010 period that percentage decreased to 23%.  Those cohabiting as their first unions went from 34% in 1995 to 48% in the later period. Thanks to the efforts of legislatures in states like Oklahoma and Kansas, these numbers are sure to increase.  One can’t help but wonder if those trying to make it more difficult for unhappily married couples to get divorced know what they are doing.  The answer is,  probably not.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu