Divorce Reform: We Need New Solutions, Not A Return To Fault

By

Michael A. Robbins

Here we go again. It's expected that legislation to reform Michigan's "no-fault" divorce law will soon be introduced in Lansing. One bill is expected to be similar to the one unsuccessfully attempted in the 1995/1996 and 1997/1998 legislatures. That bill attempted to reinstate "fault" as a necessary ground which had to be proved before a divorce could be granted. Historically, typical grounds for divorce included imprisonment, adultery, desertion, abuse of a controlled substance, alcohol abuse, physical abuse or extreme cruelty.

The other bill expected to be introduced provides for "covenant marriages". A covenant marriage is a statutory marriage contract which is voluntarily entered into between the parties. If the parties agree to a covenant marriage, they agree to the following:

We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife so long as they both live. We have chosen each other carefully and disclose to one another everything that could adversely affect the decision to enter into this marriage. We have received pre-marital counseling on the nature, purposes, and responsibilities of marriage. We have read the Secretary of States pamphlet on covenant marriage, and we understand that a covenant marriages is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we declare that our marriage will be bound by Michigan law on covenant marriage, and we promise to love, honor and care for one another as husband and wife for the rest of our lives.

The proposed Michigan law governing covenant marriages would then provide that a divorce could not be granted until the following conditions were met:

  1. The defendant committed "fault" such as adultery, imprisonment, abandonment, physical abuse, etc.

Initially, let me make it perfectly clear that most divorce lawyers are not opposed to "divorce reform". In fact, the Family Law Section of the State Bar of Michigan is dedicated to improving family law in the State of Michigan. The intent behind these "divorce reform bills" is admirable. The drafters of these bills should be commended for trying to reduce the divorce rate and the adverse consequences of divorce. I don't believe that anyone can object to that goal. However, the reinstitution of "fault" divorces simply will not accomplish that goal. In fact, it will make matters worse for individuals and children going through a divorce.

In 1972, the State of Michigan repealed "fault" divorces for very good reasons. People were simply saying and doing whatever was necessary to get around the law. The law created needless hostility, collusion, and perjury when it came to dealing with the concept of fault. In the end, individuals who wanted a divorce ultimately found a way to obtain that divorce.

The abolition of "fault" divorces in 1972 was nothing more than a recognition that no law will ever have the power of forcing people to stay together if they don't want to. In other words, you can't legislate morality in friendship.

Unfortunately, nothing has changed since 1972. If one party wants a divorce, they will find a way to do so whether it be by divorce or separation. For example, if a Judge were to tell an individual that he or she did not satisfy the "fault" requirement and they had to remain married, do you really think they would do so? Ultimately, there would be a separation or abandonment. If this were to occur, the situation could be worse for an innocent spouse and children because there is no law in our state which provides for alimony, child support or property division without the filing of a complaint for divorce or separate maintenance. In this situation, the parties would continue to be married, but the reinstitution of "fault" did not save their marriage.

I keep hearing the same reasons in support of the reinstitution of "fault" divorces. Proponents argue that it will lower the divorce rate and that an innocent spouse will receive an economic advantage. I believe that each one of these arguments are erroneous. First of all, there is no evidence that the reinstitution of "fault" divorces will lower the divorce rate. In fact, divorce was on the rise under our "fault" system and presently statistics show that divorce is actually on a decline. Secondly, the reinstitution of "fault" divorces will not give any more bargaining power to the innocent spouse than they already have. Under our present system, the court can still consider "fault" when it comes to a division of property, an award of alimony and a determination of custody.

If we went back to the old ways of 1972 and reinstated "fault" divorces, the following negative consequences would most likely occur:

1. Parties would resort back to the same hostility, collusion and perjury that occurred in 1972.

2. Divorcing couples would now be placed in a more adversarial relationship.

3. More concentration would be spent on who was to blame in the breakup of the marriage and less time spent on amicably trying to resolve the issues in dispute.

4. There would be more litigation and nastier divorce trials with each side trying to prove who was to blame.

5. Divorces would become more expensive.

6. The court system would become more congested.

7. The potential for domestic violence will be increased.

8. Innocent children would now have to witness the character assassination of their parents. In the end, there will be a judicial determination made that the children will carry with them for the rest of their lives that one of their parents was at "fault" in the breakdown of the marriage.

The above are just a few of the negative consequences which could result in the reinstitution of a "fault" system. What are the positive? I have seen no statistics which show that forcing children or spouses to stay in an unhealthy relationship would cause fewer problems or turmoil than allowing them to leave. The only plausible argument in support of reinstituting fault is that it may give a better bargaining position to the innocent spouse when a divorce is filed. In other words, "I will give you your divorce, but only if you give me, . . . ." Although this may be true, this one positive result would come at the cost of reinstituting all of the negative consequences of a "fault" system. Once again, this isn't necessary because an innocent spouse already has that clout under our "no-fault" system.

What then is the answer?

First of all, we need to recognize that divorce is not the cause of societies problems, but rather the result of societies problems. If you really want to reduce the divorce rate, you need to find the causes of divorce and then work on resolving those problems.

If you really want to reduce the divorce rate, this can be accomplished in three ways:

1. Through education and counseling.

2. Through reform of our divorce laws.

3. Through reform of our court system.

Education and counseling are perhaps the best ways to reduce the divorce rate. We need to educate individuals on the negative consequences of divorce before marriage and during a divorce.

If we offer education and counseling to individuals before they are married in such areas as parenting classes; financial planning; conflict resolution; legalities of divorce; and the negative consequences of divorce, then maybe we can teach individuals before they are married about the commitment and responsibilities that are necessary for a marriage to work. Additionally, we may also discourage individuals from getting married if they are not willing to accept those responsibilities.

We also need to offer education and counseling before we allow a divorce to take place. For example, if divorces are caused by lack of parenting skills, then we need to teach parenting skills. If divorces are caused by drug abuse; alcohol abuse; or spouse abuse, then we need to have better access to mental health facilities. If divorces are caused by constant fighting, then we need to teach conflict resolution. We also need to educate parents on what their children will go through during and after a divorce. Finally, parties must be educated on the negative consequences of divorce in the event they ultimately choose to divorce. If such counseling may save a marriage, then it should be ordered before a divorce is granted.

We can also deal with the negative consequences of divorce by re-examining and modifying our divorce laws. If we want to give more clout to an innocent spouse then we can do that by legislation. We can also re-examine our alimony laws if they are inequitable or mandate alimony

guidelines like we do with child support. We can re-examine our child support formulas and legislate better collection procedures. We can legislate or encourage better enforcement for violations of court orders. Finally, we can mandate counseling and longer waiting periods before marriage and prior to divorce .

The last way we can reduce the negative consequences of divorce is by a more effective court system. This was one of the main reasons why we adopted a Family Court. We now have judges who have agreed to hear family law cases and will take the time necessary to help resolve those cases. We must give this new court system an opportunity to work. Perhaps now is the time to re-examine the Friend of the Court and make positive changes in that agency.

In other words, we need to hold individuals, lawyers and judges more accountable in divorce situations. If everyone assumes more responsibility in the process, then divorce and the negative consequences will be reduced. However, the reinstitution of "fault" divorces is not the answer. Forcing individuals to stay in a broken relationship is not the solution. It doesn't even address the problems which resulted in those individuals seeking a divorce in the first place.

Some people argue that getting a divorce is too easy. I don't agree. I have never met a client who has indicated that to me. Most clients indicate that divorce is the worst thing they have ever experienced. Personally, I can't imagine a more painful way to end something that started out so hopefully. Unfortunately, divorce is sometimes the only solution and it would be irresponsible to make it more difficult to obtain.

The reinstitution of "fault" divorces has no place in our law today. The reasons why it was repealed in 1972 still exists today. It is ridiculous to think that the introduction of such a bill will somehow cause families to stay together or reduce the divorce rate. This simply will not happen and the cost of this experiment are too great. We can not go back to the old ideas of the 1950's and 60's by reinstating "fault" divorces. As we enter the new millennium, we need to go forward with new ideas when it comes to dealing with the age old problem of divorce.