How To Fix No-Fault Divorce

MIKE McMANUSBy Mike McManus

In the old days, if a spouse wanted a divorce, there had to be proof that a partner was guilty of a major fault – adultery, abandonment, or physical abuse. Marriage was considered a sacred contract agreed to by the man and woman before God and witnesses.

Then in 1969 California Gov. Ronald Reagan signed America’s first No-Fault Divorce law. A spouse could simply allege that the marriage had “irreconcilable differences,” and the divorce was always granted. No fault had to be proven. Almost all states passed no-fault divorce by 1975, and America’s divorces almost doubled from 636,000 in 1969 to 1,189,000 by 1979.

Reagan later told his son, Michael, no-fault was his “greatest regret.” Michael wrote about the impact of his dad’s divorce to Jane Wyman:

“Divorce is where two adults take everything that matters to a child – the child’s home, family, security and sense of being loved and protected – and they smash it all up, leave it in ruins on the floor, then walk out and leave the child to clean up the mess.”

In my book, “How to Cut Divorce Rates in Half,” I argue that no-fault is unconstitutional. Both the 5th and 14th Amendments guarantee that “no person be deprived of life, liberty or property without due process of law.” But when every divorce is granted, how is there due “process of law” to the four of five spouses who do not want a divorce?

And divorced people ARE deprived of life, liberty and property. A divorced woman lives 4 years less than a married woman, a divorced husband, 10 years less and their kids live 5 years shorter lives. Typically the father can only see his kids two weekends a month – depriving him and his kids of liberty. And creating two households on the same income as one, deprives both of property.

In testimony I gave to a Michigan House Committee on Families, Children and Seniors this week, I suggested four reforms of no-fault divorce:

First, more time. America’s divorce rate of 23% after five years of marriage is triple the 8% of Britain or France. Why? If a British husband wants a divorce but his wife does not, they must wait five years to be divorced – and six years in France. Five or six years is a lot of time for couples to reconcile.

By contrast, Michigan and 22 other states require a ZERO waiting period for divorce, or only 20-60 days. These states are pushing people to divorce.

Therefore, I propose that states require a one-year waiting period, and two years, if the divorce is contested. Neighboring Illinois has such a law, and its divorce rate is only 44.8% compared to 60% in Michigan. If Michigan had Illinois’ law there would have been only 28,800 divorces instead of 36,000. More than 7,000 couples would have saved their marriages.

Second, I suggest that if one spouse files for divorce, that the couple be allowed to continue living under the same roof. Every state with a waiting period requires couples to move apart, which only encourages husband or wife to begin dating. They should have the option to remain in the home together, if desired, to encourage reconciliation.

Third, I have two educational suggestions. If the couple has children, before divorce papers can be filed, they should be required to take a 4-hour course online that summarizes the impact of divorce on children.

What they will learn is that a child of divorce is three times more likely to become pregnant as a teenager or to be expelled from school as a teen from an intact home, five times as apt to live in poverty and six times more likely than those with married parents to commit suicide and 12 times more apt to be incarcerated.

No parent wants to push their children into such disasters, but an unhappy spouse is not thinking about his/her children. They are only thinking of their pain. This course should prompt many parents to resolve their differences as a couple to preserve their marriage.

My second educational suggestion is that during the year or two of delay before the divorce takes effect, states should require the couple to take a course to improve their skills of communication and conflict resolution. Most couple divorce because they don’t know how to resolve difference amicably, which can be taught in a day.

Finally, the spouse trying to preserve a marriage should get 70% of family assets, instead of the usual 50-50 split – and at least 50% of child custody time.

The Michigan committee was encouragingly open and supportive of my ideas – except for my suggestion that the spouse opposing divorce get 70 percent of family assets. (I replied, “How about a 55%-45% split? A 50-50 split encourages a man” — or a woman — “to have an affair…That is my most radical proposal. If you don’t like it, throw it out.  But lengthen the time before a divorce is granted and add the educational elements. Those things are not controversial.”)

State law should encourage reconciliation – not divorce.

 

Post By beverlyw (86 Posts)

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  1. Thank you for this article. No fault divorce causes devastating financial and emotional trauma to stay-at-home parents and their children. Domestic violence is another factor that needs to be discussed and not dismissed as the norm. The abuser should have to leave the family home – not the parent being abused and seeking safety. Counseling should be mandatory for every divorcing couple with children. If a spouse refuses counseling; then that parent should not have any custody. Just like when custody is an issue; the judge orders mediation. Every Family Law Judge should also order each couple to observe Divorce Court for 8 hours each month and to examine the associated legal bills. Perjury and embezzlement must have financial consequences. Wealthy spouses are getting away with the same sort of crimes that Bernie Madoff committed. Why is it less of a crime to steal and hide money from your family?

  2. I agree with Twyla that exceptions must be made for cases involving domestic violence. The abuser should be required to leave the home, rather than being allowed to push the injured spouse and children from their home. I argue that two forms of counseling ought to be required of couples with children. First, no divorce papers should be allowed to be filed until both spouses have taken a course on the impact of divorce on children. Hopefully, that would persuade many couples to heal their marriage rather than divorce.

    Second, I have called for a year of delay before a divorce is granted, and two years if it is contested or if there are children. The delay is needed to encourage reconciliation. At present half the states have no waiting period or only 20-60 days. During that year or two of delay, the couple should be required to take a course to improve their skills of communication and conflict resolution. Both forms of counseling are designed to save the marriage. Many states require divorcing couples to take counseling, but it is just before the divorce takes effect, and saves no marriages.

    I do not agree that divorcing couples should be required to observe Divorce Court for 8 hours a month forever. How will that help them or their children? Finally, I agree that spouses should not be able to hide assets from one another, without incurring penalties for perjury.

    Mike McManus

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    • Jackeline Lopez-Sangiorgio says:

      I got married in NY in 1998 when NY was the only State (or one of the only states) without No-Fault Divorce. Then, in 2010 divorce laws changed, and although unbeknownst to my then husband in 2014 he filed for divorce. My first reaction was….I will not give him the divorce; just to quickly find out from my lawyer, that I no longer had that option. That if I didn’t take part in this divorce he would just get everything he wanted including the kids! My husband was and is disabled (mentally and somewhat physically) and has/had bipolar. I knew there was no real reason on his part for wanting and seeking a divorce and that it was all just some kind of psychotic reaction to stress and bad finances. I had plenty of reasons to seek a divorce from him through the years. However, I was always a die-hard believer in vows being forever. Him filing to divorce me was like a “ARE YOU F…ING KIDDING ME???” sort of thing. He was the f up, he was the unstable one, he was the one that I continuously tolerated like a saint and I had earned my place in heaven for sure! I told his attorney that he was not mentally stable. Her answer to me is he is completely sane. And treated me like “I” was the crazy. The divorce did not take long to finalize, however for about a year and a half my then husband said many horrible and hurtful things to me that didn’t fit with our normal “dance” at all. Completely out of our relationship character. I was convinced that this was all part of his mental condition worsening and that he had/has borderline personality disorder as WELL as bi-polar. Long story short: this devastated our family (we have two children). Now he wants do be back together and says that he was completely insane and in some sort of trance, but after all the hurt and pain I had to endure, I cannot put myself in a position to have to possibly endure that again. I feel that NY STATE ruined our lives. I feel that I have grounds to sue NY STATE and start to change the marriage laws. First grounds: I got married in NY STATE in times when the laws for No-Fault Divorce did not exist. Who is the State to tell me that I now have to change my view on the dissolution of my marriage? If I got married in a state without No-Fault laws, I should be able to execute no-fault laws for the duration of my marriage; be “grand-fathered” in, so to speak. My other bone to pick is that my husband was found to be mentally disabled. A mentally disabled person should not be allowed to break apart their family! He was treated as completely sane, when I know now that the whole divorce thing was nothing but a sign of a worsening mental condition. I am glad to see that there are like minded people out there. I wonder what could come from our combined passion to execute a change in the system?

  3. Jackeline Lopez-Sangiorgio makes a valid point that a marriage contracted before No Fault Divorce should be “grandfathered” with the old rules that require a person seeking a divorce to provide evidence that their partner was guilty of a major fault such as adultery, abandonment or abuse. However, all 50 states have re-written the rules to impose the new No Fault Divorce in which one spouse simply claims the marriage is “irreconcilable,” without any evidence of fault. That’s why I am calling for the reform of No Fault Divorce.

    However, I do not understand her position that she won’t take him back now that he has had a change of heart. She says that the divorce was “devastating” to her children. Therefore, why not restore it for their sake – especially since her husband had mental problems that she was able to live with for years before? .

    No one has the perfect marriage. However, both husbands and wives can learn to submit first to the Lord, and then to each other. Love is our culture is a feeling. But in Scripture it is a decision: “Love is patient, love is kind. It does not envy, it does not boast. It is not rude, it is not self-seeking. It is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres.” I Cor. 13: 4-7.

  4. I also agree with applying the diviorce laws that were in place when the couple were married.

  5. I also strongly agree that dissolution of a marriage should be in accordance with the laws in place when the marriage (contract) was entered into. I was married in NY also – in 1990. When xW filed for divorce in 2011, it was under a law that I had never agreed to. Just another unjust application of a disastrous law. And like the poster above, I was (and am) convinced my spouse was mentally ill. The divorce was just one symptom of this –

    I don’t understand how anyone would get married under the current no-fault laws. Its easier to get out of marriage than your cell phone contract. Deplorable…

  6. I know this subject all too well. My husband I moved to NCin 2011, one year later he left our little girl and our marriages age of almost 25 years. I left NC with our child exactly a year later
    as my child and I had no family or close friends in the area and moved in with family in another state. Two months later, he filed for divorce which was granted even though I no longer resided in the state . I am a Christian and I do not believe in divorce so I did not participate in the divorce. As we own our family home in another state no property was divided and our child was no longer in their jurisdiction , custody wasn’t resolved either until I filed for that. Our lives have been devastated, we had a successful business that he no longer wants to participate in, my child and I have been forced to move in with family again, my husband has hidden money and pays me a pittance in child support and I am left standing in the gap for my marriage. Did I mention my child now has to go spend vacations with his girlfriend and her two kids, the same woman who destroyed my marriage. There is no justice in this evil world.

    • Mike McManus says:

      I find Michelle’s situation a bit confusing. She moved out of state, but the property she shared with her husband either had to be sold, with the assets divided equally – or her husband should be required to pay her half of the value of the house if he continues to live in it. Several real estate agents should be asked to assess its value, the average of which would be split into two parts – for her and him. She says that she and her husband had a successful business that he no longer wants to participate in. Then the business should be sold, with each getting half of the assets. Alternatively, she could return to run the business on her own. Mike McManus

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