In this past Sunday’s New York Times, Robin Wilson writes:
What accounts for the new resistance to no-fault? Reasons include the growing evidence that divorce often hurts children, feminists’ renewed recognition of the importance of legal protection for mothers raising children, and concerns about the economic disparities created by differences in marriage rates. Gay marriage advocates have also played a role in this shift, by calling attention to “easy divorce,” which they say is the real threat to marriage, not same-sex unions.
Isn’t there a far more important group that Professor Wilson has forgotten to mention? It’s as if she hasn’t noticed that right-wing Christians, not feminists or same-sex marriage advocates, are the people running the government nowadays. Opposing divorce is a Christian right priority, not a feminist or a queer rights priority.
Lindsay at Majikthise, like me, is skeptical of the idea that feminism and gay rights “accounts for the new resistance to no-fault.” But she says she finds this argument of Professor Wilson’s more persuasive:
While I was living in Maryland, my husband, from whom I am now divorced, assaulted me (an assault for which he has since been convicted). On the whole, I had been impressed by how Maryland protects victims of domestic violence. But I also came to understand why the New York chapter of the National Organization for Women has opposed Judge Kaye’s unilateral divorce proposals.
When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.
No law will ever be perfect for all abused women; but the harm to Professor Wilson, which is that her abuser got more money in their divorce than he would have in a fault system, is real but also relatively minor. Before we oppose no-fault divorce, we should also ask what opposing no-fauilt would mean for abused women who don’t have the economic or legal resources of a law professor, and who aren’t able to prove abuse in court. A “fault” law with teeth — for instance, a law that mandates a one-year delay before divorce can be granted, unless abuse is proved in a courtroom — would effectively of tie victims to their abusers, drawing out the process of separation for an extra year.
Furthermore, for many abused women, no-fault divorce seems to improve their “bargaining position” within a bad marriage. One study ((Betsy Stevenson and Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” Quarterly Journal of Economics, 121(1) February 2006)), published early this year in the Quarterly Journal of Economics ((I posted more about these findings here.)) (pdf link), found that when states switched to no-fault divorce, there were substantial benefits for some women:
…Easy access to divorce redistributes marital power from the party interested in preserving the marriage to the partner who wants out. In most instances, this resulted in an increase in marital power for women, and a decrease in power for men.
Our analysis of US data revealed the legislative change [to no-fault divorce] had caused female suicide to decline by about a fifth, domestic violence to decline by about a third, and intimate femicide – the husband’s murder of his wife – to decline by about a tenth.
I can support attempts to reduce divorce rates by providing positive help to stay married (free marriage counseling, for example), although I’m skeptical about how effective such programs will be. But we should all be against attempts to reduce marriage by disempowering people who want to leave marriage — proposals that, in effect, use the law to force people to remain married against their will. These laws will harm battered women most of all; having to prove abuse in court in order to be free of their abusers is a horribly unfair burden to place on victims of abuse. With all due respect, I’d ask both Lindsay and Professor Wilson to rethink their positions.
Hat tip: Feminist Law Professors.