'No Fault' Divorce Under Assault

Ten years ago, Mark and Betty Squier's 19-year marriage appeared to be finished. They endured in what they now call a "married singles lifestyle." Mark, a police officer, had become a self-described workaholic, holding down an additional two jobs, while Betty, a full-time homemaker, devoted herself to the couple's five children. They had become virtual strangers with separate lives. Mark began an extramarital affair with a woman he met through work, and in May 1986, he filed for divorce.

In Michigan, where the Squiers live, adultery is still a felony. But, Mark says, "I was able to file for divorce because of this adulterous relationship, and had I gone through with it, I would have received no prosecution from the government for my criminal conduct and no censure from my church or the state for breaking my vows to my wife." What's more, under Michigan's no-fault divorce laws, Mark could divorce Betty against her will and walk away with half the family's wealth.

Betty, who did not want the divorce, eventually persuaded Mark to attend a Retrouvaille marriage retreat with her. An international Catholic lay ministry, Retrouvaille targets troubled marriages. Through the Retrouvaille program, the Squiers found new hope for their marriage, and Mark withdrew his divorce action.

Today, the Squiers say their marriage is stronger and happier than ever. They have become volunteer leaders with Retrouvaille, helping other couples address marriage problems. They also have joined a growing public campaign in Michigan to reform the laws that would have made it so easy to break apart their family. "It's a matter of putting justice back into the courtroom of divorce," says Mark.

NO-FAULT DEFAULT: Nearly 30 years ago, social activists argued that the elimination of the fault-based divorce system would reduce acrimonious court proceedings and enhance the status of women. However, given mounting evidence of the negative impact of divorce on families, children, and society, a burgeoning—and surprisingly diverse—movement is now calling for radical re-examination of U.S. divorce policy. As at least nine states consider new legislation this spring, many Christian leaders are urging churches to consider their own role in addressing crumbling family structures.

At issue are policies and assumptions that have been in place for more than a generation. California became the first state to adopt the "no-fault" divorce concept, which is now the basis of divorce law in all 50 states. Under California's 1969 Family Law Act, a marriage could be dissolved if either partner cited "irreconcilable differences which have caused the irremediable breakdown of the marriage." Legislatures across the nation quickly adopted the idea.

Divorce rates have since skyrocketed. In 1960, about 393,000 marriages dissolved through divorce or annulment. That number has tripled to almost 1.2 million annually. There are many contributing factors, but a 1995 study by the University of Oklahoma concluded that no-fault divorce laws raised the divorce rate by more than 15 percent. The divorce rate has stabilized in recent years because marriage rates have decreased, with growing numbers of unmarried couples cohabiting.

COUNTING THE COST: Numerous studies document the societal tolls of such trends. Judith Wallerstein, who began ongoing studies of divorced families in 1971, has conducted some of the most definitive research. "Few adults anticipate accurately what lies ahead when they decide to divorce," Wallerstein wrote in her book "Second Chances." Years after divorce, Wallerstein found adults still experiencing severe anger, depression, and financial difficulties. Children of divorce suffered even more, she discovered, exhibiting health and emotional problems and a higher rate of antisocial behavior.

Other recent studies have documented greater risks of alcohol and drug abuse, depression, suicide, criminal behavior, and sexual activity among children growing up in single-parent homes.

"We as a society are simply failing to teach the next generation about the meaning, purposes, and responsibilities of marriage," says a 1995 report by the politically diverse Council on Families in America. "If this trend continues, it will constitute nothing less than an act of cultural suicide."

More and more social analysts believe the state has a responsibility to intervene. Former Clinton administration domestic policy adviser William Galston, now a professor at the University of Maryland, is calling for more legal distinctions in divorces involving minor children and in those that are not sought by mutual consent. Even in cases of mutual consent, Galston favors "braking mechanisms," such as a mandatory waiting period for "reflection, counseling, and mediation."

Galston considers such reforms a moral issue. "Norms of personal satisfaction are now trumping norms of relationships based on obligation," he says. "That is a shift that has some advantages for some adults, but it has many fewer advantages for many fewer children."

Harvard Law School professor Mary Ann Glendon, a frequent author on divorce, also advocates reforms giving top priority to consideration of children's needs, especially in dividing marital property. "Unlike the conflicting and competing principles on the rights of the spouses in current marital property law, this principle has the twin virtues that it is relatively noncontroversial and that it applies to the majority of cases," she writes in a recent law review article.

MICHIGAN MODEL: Georgia, Idaho, Illinois, Iowa, Michigan, Minnesota, Pennsylvania, Virginia, and Washington all have begun putting legislative flesh on such ideas.

Michigan took the lead when, on Valentine's Day, State Rep. Jessie Dalman introduced a package to overhaul the state's marriage and divorce policies.

Dalman's proposals would eliminate unilateral no-fault divorce, except in instances where physical abuse, desertion, adultery, substance abuse, or imprisonment can be proved. In divorces involving children, parents would be required to receive counseling about the potential effects of divorce and submit a postdivorce parenting plan to the court. Dalman also proposes incentives for premarital counseling: a substantial reduction of the marriage license fee and waiting period for couples who have undergone counseling.

During the hearing process last year, Mark and Betty Squier testified in support of Dalman's proposed reforms. Also solidly behind the proposals is the Michigan Family Forum, a nonprofit group affiliated with the Colorado Springs-based Focus on the Family.

"It is simply wrong that the state would, in effect, be on the side of a person who is breaking up a marriage for no reason," says Dan Jarvis, director of research and public policy for the Michigan Family Forum. "That is just encouraging irresponsibility." Jarvis says his group has mailed copies of Michigan's bills to 30 states in response to requests.

Syndicated religion columnist Michael McManus, who has been calling for these policy reforms since the mid-1980s, says such national interest represents a marked shift from the beginning of the decade when little, if any, political support for repeal of no-fault divorce existed.

"It is clear that there is a rising tide of public concern about the rate of marital dissolution in this country, and in particular its effect on children," agrees Galston.

The issue appears to be a rare one transcending standard ideological divides.

"It would be a mistake to see this simply as social conservatives," asserts Galston, a self-described liberal. Even long-time feminist leader Betty Friedan recently acknowledged that no-fault divorce has created a host of "unanticipated consequences" for women and children that need to be reconsidered.

ARE LAWS THE ANSWER? Nonetheless, many observers question whether the current legislative proposals are the correct solution. In Michigan, several women's groups have argued that Dalman's bills could trap wives into dangerous situations by requiring proof of abuse. Some sociologists have expressed concern that reforms making marriage and divorce more difficult may simply encourage people to live together outside of marriage, prompting even more consequences for the breakdown of marriage and the family.

Many divorce attorneys, including officials at the Michigan Bar Association's family law section, argue that repealing no-fault measures will result in an escalation of the bitterness and fabrication of charges already all too often present in divorce situations.

Supporters of divorce reform disagree with such criticisms. Jarvis acknowledges that Michigan's proposals may require "a slightly harder burden of proof" for abuse, but he added that abused spouses able to substantiate their claims will also receive in the long run "a greater portion of the marital assets and child custody." In addition, advocates of a fault-based system contend that no-fault laws never really eliminated acrimony within divorce, but merely shifted it to other issues such as child custody and property division.

SLEEPING CLERGY? As the debate ensues, some Christian leaders express regret that the church has not been a stronger voice on an issue that has such direct moral implications. "Religious leaders are mostly asleep on this," McManus says, although he acknowledges that the "Catholic church has been more awake than most."

In Michigan, the state Catholic Conference has endorsed Dalman's reform package. The Michigan Family Forum, which is a Christian group, has been trying to rally other religious support for the bills as well.

Nationally, Catholic bishops, in a 1991 "Putting Children and Families First" report, urged reconsideration of "the consequences of permissive divorce" and called generally for divorce laws that "recognize the frequently devastating consequences of divorce on children."

Politics aside, more and more Christians are lamenting the lack of attention among Protestant leaders to marriage and divorce. "There is no strategy among any Protestant denominations to try and save marriages," says McManus, whose book Marriage Savers encourages such efforts.

Many observers see growing ambivalence about divorce, partly fostered by the experiences of church leadership. According to a 1995 study by Hartford (Conn.) Seminary, one-quarter of female and one-fifth of male clergy have been divorced (CT, Oct, 23, 1995, p. 82).

Such trends have a direct impact on marriage ministry within churches, according to David Ferguson, executive director of the Center for Marriage and Family Intimacy in Austin, Texas. "You're not going to prioritize or emphasize ministry within your church any more than that truth is real in your own home," he says. "There is a lot of marital family pain in the ministry, and if that is not addressed, you're not going to have a healthy emphasis in the church."

In addition, Ferguson suggests that many pastors simply do not know how to address marriage and divorce issues. They are not trained in seminaries, so they relegate such ministry to other "professional" counselors, rather than dealing with it in the church, he asserts.

Craig Keener, author of "… And Marries Another," a book offering biblical interpretation on divorce and remarriage, welcomes new examination of church and social attitudes about divorce. He agrees churches need to place more emphasis on faithfulness and restoration of marriage. But he is also concerned that such efforts not create a backlash against hurting persons who have gone through divorce. "Within the church, on one hand, you have people who are so much against divorce that they take it out on divorced people, and on the other hand, you have people who don't mind divorce at all," he says. "Neither extreme is biblical."

The church needs to develop a "just divorce theory" similar to the criteria theologians have developed on war, suggests Mary Stewart Van Leeuwen, a professor of gender studies at Eastern College. "Divorce is not God's creational intention for people, but in a fallen world, we sometimes have to choose between the lesser of two evils," she says, adding that the "default option should obviously be toward the maintenance of marriage."

PREPARING THE CHURCH: Van Leeuwen applauds McManus's call to churches to do a better job of premarital counseling. "There's no point in getting moralistic and heavy-handed about divorce if we're not preparing young people better for marriage," she asserts.

Ferguson's center provides resource and training materials to equip churches for more ongoing marriage and family ministry. It also sponsors marriage retreats for ministry couples. Ferguson says new laws making divorce more difficult to obtain could help his work. "I think it would give pastors and church counselors more of an opportunity to encourage the couple to seek additional help, to explore every imaginable way of reconciling their marriage," he says.

The question many Christians are asking is whether churches are indeed ready to step in should new laws take effect.

Mark Squier says that when he first read Dalman's call for mandatory counseling before divorce, he saw a perfect niche for Retrouvaille, which in Michigan has an 80 percent success rate in reconciling troubled marriages. But, he says, he also became slightly alarmed. As a completely volunteer ministry, "we don't have the capacity right now" to handle large numbers of new applicants. About 400 couples attended the Retrouvaille program in Michigan last year, while 40,000 in the state divorced.

"Laws may be helpful in moving society in a better direction as far as making people think twice about divorce, but I think the church shouldn't have to wait for society to set the standards of morality," says Keener, professor of New Testament at Hood Theological Seminary in North Carolina.

McManus, who has been married for 30 years, urges churches to take more spiritual responsibility for the marriages blessed before their altars. He also is encouraging older, more experienced couples to be "marriage mentors."

In addition, 38 cities across the nation have adopted the "Community Marriage Policy" that McManus has advocated for more than a decade. Under the policies, clergy in local areas join forces in a unified commitment to "radically reduce the divorce rate." Ninety-five pastors in Modesto, California, signed the first community policy in 1986. A decade later, the number of annual divorces in the county has dropped to 1,606 from 1,923—while the population has risen to 420,000 from 303,000.

McManus believes that the church, "properly functioning," has the message that can strengthen marriages at every stage.

Based on their own experience, Mark and Betty Squier agree. "Forgiveness is never a part of society's message. Instead, we're told, 'You can be happier if you get rid of him,' " Betty says. But, she adds, the church has a different message: "If you are unable to forgive, then you will not be forgiven." And Mark and Betty say that message saved their marriage, even though the state would have readily dissolved it.

Copyright © 1996 Christianity Today. Click for reprint information.

Have something to add about this? See something we missed? Share your feedback here.