Conservatives want to make divorces harder to get

Special to The Washington PostApril 19, 2014 

  • In North Carolina

    A bill under consideration would double the waiting period to two years and require couples to receive conflict-resolution counseling, as well as additional counseling, if they have children.

    The Washington Post

For years, social conservatives have been fighting to prevent certain people from getting married. But they’re waging a parallel battle, too: Trying to keep married couples together.

In cooperation with the Family Research Council and the National Organization for Marriage, socially conservative politicians have been quietly trying to make it harder for couples to get divorced. In recent years, lawmakers in more than a dozen states have introduced bills imposing longer waiting periods before a divorce is granted, mandating counseling courses or limiting the reasons a couple can formally split. States such as Arizona, Louisiana and Utah have already passed such laws, while others such as Oklahoma and Alabama are moving to do so.

If divorces are tougher to obtain, social conservatives argue, fewer marriages will end. And having more married couples is not just desirable in its own right but is a social good, they say. During his presidential campaign, former Sen. Rick Santorum, R-Pa., emphasized finishing high school and getting married as cures for poverty. “If you do those two things, you will be successful economically,” he declared at a 2011 event in Iowa.

A legislative movement against divorce may seem like a non-starter in a country where half of married couples avail themselves of this right, but as with legal challenges to Obamacare and the rise of the tea party movement, today’s fringe idea can quickly become tomorrow’s mainstream conservatism.

Divorce has long been a cultural touchstone in America. Social conservatives regularly advocate a return to a more traditional system of divorce – namely that it be extraordinarily difficult to get. For example, the only way an Alabamian could get a divorce under the state’s original 1819 constitution: “No decree for such divorce shall have effect until the same shall be sanctioned by two-thirds of both Houses of the General Assembly.” Even a battered wife – who, of course, couldn’t vote – would have to petition her all-male state legislature and get supermajority approval before being freed from matrimony.

For most of American history, to obtain a divorce, one party had to prove to a judge that the other party was at fault, meaning he or she had committed certain grievous acts that irreparably harmed the marriage, such as adultery or being convicted of a felony. Emotional or physical abuse wasn’t always enough; even adultery or abandonment could be insufficient if a spouse reluctant to get divorced convinced a judge that his or her partner was similarly culpable.

This system began to crumble during the 1960s. In 1969, California became the first state to legalize no-fault divorces with the Family Law Act, signed by Gov. Ronald Reagan.

No-fault divorce has been a success. A 2003 Stanford University study detailed the benefits in states that had legalized such divorces: Domestic violence dropped by a third in just 10 years, the number of husbands convicted of murdering their wives fell by 10 percent and the number of women committing suicide declined between 11 and 19 percent.

Yet the conservative push for “divorce reform” is finding sympathetic ears in statehouses, where Republican lawmakers have regularly introduced bills to restrict the practice.

Last year, seven GOP lawmakers in Iowa wanted to prohibit no-fault divorces for couples with children under 18. Under the bill, parents could divorce only in cases of adultery, imprisonment due to a felony, abuse, abandonment or if the couple has been separated at least two years.

While some studies show that children of divorced parents do experience worse outcomes – including diminished math and social skills, a higher chance of dropping out of school, poorer health and a greater likelihood of divorce themselves – Stanford sociologist Michael Rosenfeld says there is no way to test definitively whether children of divorced parents were already more likely to experience such outcomes. And as Stephanie Coontz, author of “Marriage, a History,” explains, what’s most critical is the high-conflict environment that kids grew up in before their parents separated.

At least a dozen other states since 2011 have tried to make divorce more difficult. Along with Iowa, New Hampshire and Oklahoma have tried to eliminate no-fault divorce for parents. Other states are pushing legislation to lengthen the waiting period before a judge can grant a divorce, including up to two years in North Carolina.

Such waiting periods are “fairer to the spouse who is being left,” the Family Research Council contends in a brochure titled “Deterring Divorce.” But inherent in that argument is an unfortunate and unavoidable reality: Making divorce less accessible harms women most. Women today are twice as likely as men to ask for a divorce.

The push to restrict divorce is a form of paternalism – expanding government in pursuit of socially conservative ends. Marriage is a conservative institution, the thinking goes, and married straight couples provide a backstop against the creep of government. Any public policy that encourages the creation and persistence of married straight couples therefore merits support; any policy that deviates, including same-sex marriage or no-fault divorce, is hostile to the institution.

The Family Research Council sees no contradiction in the state playing an active role in such private decisions. “As the grantor of both marriage licenses and divorce decrees, the state has already established the right to regulate the disbursement of each,” argues Peter Sprigg, senior fellow for policy studies at the council.

But if new divorce restrictions fail to pass, it may be for a self-interested reason: Republicans get divorces, too. Two of the five states with the highest percentages of divorced residents are red states.

And if conservatives actually believe that divorcing couples might have a change of heart, there’s another solution besides longer waiting periods: remarriage. However, only about 6 percent of divorcees ultimately remarry each other. Reconciliation certainly happens; divorce doesn’t have to be forever. But it’s impossible to pass legislation that stops spouses from lying or cheating.

The Washington Post

Scott Keyes writes for the Center for American Progress Action Fund.

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