Jewish World Review June 11 / 17 Iyar, 5758

Dr. Wade Horn

No-fault divorce and the partner who "wants to make things work"

By Dr. Wade F. Horn

Q: A dear friend of mine waited until he was 50 years old to marry a Russian dissident emigree who is in her mid thirties. They have been married about a year. She is expecting their baby in August and has thrown him out demanding a divorce. If he cooperates he can have unlimited access to their daughter. He has tried for the past six months to change her mind about ending the marriage. She stubbornly insists that he is unsuitable as a husband (financial troubles are the cause of their marital problems).

Now he is asking me how he can be a good dad in these bleak circumstances. I have no idea what to tell him. Given the fact that she won't cooperate in keeping the marriage together, what do I tell him?

A: Some questions have no satisfactory answer. This is one of them.

Unfortunately, in today's world of no-fault divorce, the law is squarely on the side of the person who wants to walk away from a marriage. Essentially, if one person wants out, the law says "fine." The person wanting to keep the marriage together is left with little recourse. Such is the stuff from which tragedy is made.

It didn't use to be this way. Prior to the introduction of no-fault divorce, "fault" had to be established before the granting of a divorce. Although this led to too many instances of private eyes peering into bedroom windows, it had the virtue of giving power to the person who wanted to keep the marriage intact.

In effect, fault-based divorce laws said, "You can walk away from this marriage if you want, but if you do and we find you responsible for the failure of the marriage, we will compensate the innocent spouse for your actions when it comes to things like alimony and division of property." As you can imagine, this operated as a powerful disincentive to divorce.

Then came no-fault divorce. Heralded as a means of reducing the acrimony common in divorce proceedings, a tidal wave of legislative reform quickly swept over all 50 states. Today, every state operates under some version of no-fault divorce.

But the utopian vision of no-fault reformers was never realized.

Instead of ushering in a new era of amicable divorces, no-fault divorce laws simply transformed battles over "fault" into battles over "custody" of the children.

No-fault divorce did, however, make it easier -- a lot easier -- for a husband or wife to walk away from a marriage without so much as having to offer a reasonable explanation.

The sad fact is that it easier to get out of a marriage contract today than it is to get out of a contract to buy a car.

So what's your friend to do? Unfortunately -- and I do mean unfortunately -- here is my advice:

First, get a lawyer. And not just any lawyer, but an aggressive, no-holds-barred, take-no-prisoners lawyer, who will do everything in her power to make sure that your friend's rights are protected, especially his right to unrestricted access to, if not joint or even sole custody of, his child.

Second, don't play Mr. Nice Guy. I am concerned with your statement that if your friend "cooperates," he can have unlimited access to his daughter. It's important to remind him that he is the father of this child. Simply because his marriage is breaking up, does not mean that the child automatically belongs to the mother. He has as much right to a relationship with his daughter as she does. Being "cooperative" has nothing to do with it. He has to play this one tough. She will.

I hate having to give this advice. I really do. Nothing would please me more than to offer some palliative which would make his wife reconsider her decision to obtain a divorce. But I have no such magic. No one I know does. This is the system we have created. And it benefits no one but the lawyers.
Sometimes I wish we could just blow this system up and create a new one. One that is on the side of marriage, not divorce. One that is on the side of the best interests of the child, not the selfish interests of the person desirous of walking away from the marriage.
Sure, I understand there are times when marriages fail and divorce may be the best option. And we must be careful that whatever reforms are imposed do not trapped innocent spouses in abusive marital relationships.
But there's got to be a better way. Here's my idea.

First, before granting a divorce, couples ought to be required to show that they have made a good faith effort to reconcile their differences. If one spouse wants to enter into marital counseling and the other refuses, the judge would be empowered to compensate the spouse seeking to preserve the marriage when dividing common property. A spouse could still choose to walk away from the marriage, but this choice would come at a cost.

Second, custody determinations should be replaced by co-parenting plans. Plans that say, "we understand that despite the divorce we must still work together to raise our children, and here's how we're going to do it." If one spouse refuses to cooperate, the judge would be allowed to use this as evidence that the child should be placed in the physical residence of the other.

Doing these two things would replace the current incentives to escalate conflict, with incentives to increase cooperation. And it would place the law back squarely on the side of marriage and the kids who, after all, only want mommy and daddy to stay together if possible, and if not, to be able to continue to have a relationship with both despite the divorce.

Fault-based divorce laws certainly had their share of problems. But so do current no-fault divorce laws. Perhaps its time to try something different. Maybe then I can stop giving advice I really don't want to give.

JWR contributor Dr. Wade F. Horn is President of the National Fatherhood Initiative and co-author of The Better Homes and Gardens New Father Book. Send your question about dads, children or fatherhood to him C/O JWR

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4/26/98: It's time parents learned to 'Just Say No!'