Five Myths about No-Fault Divorce




Almost four decades after the “no-fault” divorce revolution began in California, misconceptions abound. Even the many books about divorce, including myriad self-help manuals, are full of inaccurate and misleading information. No public debate preceded the introduction of no-fault divorce laws in the 1970s, and no debate has taken place since.

 

Yet divorce-on-demand is exacting a devastating toll on our children, our social order, our economy, and even our constitutional rights. A recent study estimates the financial cost of divorce to taxpayers at $112 billion annually. Recent demands to legitimize same-sex marriage almost certainly follow from the divorce revolution, since gay activists readily acknowledge that they only desire to marry under the loosened terms that have resulted from the new divorce laws. Divorce also contributes to a dangerous increase in the power of the state over private life.

 

Here are some of the most common clichés and misconceptions about modern divorce, along with the facts.

 

Myth 1: No-fault divorce permitted divorce by mutual consent, thus making divorce less acrimonious.

 

Fact: No-fault divorce is unilateral divorce. It permits divorce by one spouse acting alone for any reason or no reason. No “grounds” are required, and the involuntarily divorced spouse need commit no legal infraction, either criminal or civil. It is therefore forced divorce, meaning you can be divorced over your objections. (Some 80 percent of divorces today are unilateral.)

 

Even more serious, you can be forcibly separated from your children, your home, and your property, also through literally “no fault” of your own. Failure to cooperate with the divorce opens the innocent spouse to criminal penalties. No-fault divorce made divorce far more destructive by allowing the state to undertake court proceedings against innocent people, confiscate everything they have, and incarcerate them without trial.

 

Myth 2: We cannot force people to remain married and should not try.

 

Fact: It is not a matter of forcing anyone to remain married. The issue is taking responsibility for one’s actions in abrogating an agreement. With no-fault divorce, the spouse who divorces without grounds or otherwise breaks the marriage agreement (for example, by adultery or desertion) thereby incurs no onus of responsibility. Indeed, that spouse gains advantages.

 

Courts therefore do not dispense justice against a legal wrong. Instead, every divorce is granted automatically, and the courts simply divvy up the goods — including the children — according to any criteria they choose, including separating the innocent spouse from his or her children without having to give any reason. Because the divorce creates work and earnings for judges, lawyers, and other court personnel, there is a strong incentive for these officials to reward the guilty spouse in order to encourage more divorces and more business for the courts. As Charles Dickens pointed out, “The one great principle of the…law is to make business for itself.”

 

Myth 3: No-fault divorce has led men to abandon their wives and children.

 

Fact: This does happen (wives more often than children), but it is greatly exaggerated. The vast majority of no-fault divorces — especially those involving children — are filed by wives. In fact, as Judy Parejko, author of Stolen Vows, has shown, the no-fault revolution was engineered largely by feminist lawyers, with the cooperation of the bar associations, as part of the sexual revolution. Overwhelmingly, it has served to separate large numbers of children from their fathers. Sometimes the genders are reversed, so that fathers take children from mothers. But either way, the main effect of no-fault is to make children weapons and pawns to gain power through the courts, not the “abandonment” of them by either parent.

 

Myth 4: When couples cannot agree or cooperate about matters like how the children should be raised, a judge must decide according to “the best interest of the child.”

 

Fact: It is not the business of government officials to supervise the raising of other people’s children. The entire point of a marriage and family is for mothers and fathers to cooperate and compromise for the sake of children and provide an example to those children of precisely these principles, without which no family can operate. Allowing one parent to surrender both parents’ decision-making rights over the children to government officials because of “disagreement” — without any infraction by the other (who may “disagree” only about losing his or her children) — negates the very principle of private family life and invites collusion between the divorcing parent and state officials.

 

Judges and civil servants are not disinterested. When we give government officials the power to make decisions about the best interest of other people’s children, it may well become the best interest of the officials. Allowing them to control the private lives of citizens’ who have committed no legal infraction simply by invoking “disagreement” gives them an incentive to reward the parent that is being the most disagreeable. That is precisely the reason for the runaway divorce epidemic.

 

Myth 5: Divorce must be made easy because of domestic violence.

 

Fact: Actual physical violence is legitimate grounds for divorce and always has been. So it does not justify dispensing with all standards of justice, which is what no-fault entails. On the contrary, openly false accusations of domestic violence and child abuse have become an industry in themselves, mostly to secure child custody. By dispensing with standards of justice for divorce, we have allowed them to be abandoned for criminal justice too. Thus “domestic violence” and “child abuse” are not adjudicated as criminal assault, and the accused seldom receives a trial or chance to clear his name. Instead he simply loses his children until he can prove his innocence, an impossible standard.

 

Most domestic violence and child abuse take place during and after family dissolution; very little occurs in intact families. So domestic violence is a red herring. Federal funds for domestic violence and child abuse now serve effectively as a subsidy on divorce in every state in America, encouraging spouses to bring false accusations and law-enforcement officials to reward them. This shatters another myth: that family law is the province of states.

 

No-fault divorce has exacerbated the divorce epidemic on almost every count. We urgently need an extensive public debate on divorce and the connected issues of child custody, domestic violence, child abuse, and child support — precisely the debate that the divorce industry has suppressed for four decades.

 

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Stephen Baskerville is associate professor of government at Patrick HenryCollege and author of Taken Into Custody: The War Against Fathers, Marriage, and the Family (Cumberland House, 2007).

 

Printed with permission from Inside Catholic.

By Stephen Baskerville





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2 comments

  1. Patrick Gannon Reply

    1. It “may” make a divorce less acrimonious, by not insisting that one of the partners be at fault. Generally the relationship is already acrimonious, leading up to the divorce. The courts, at least in my state, require that one or the other of the parties file for divorce, so of course it’s “unilateral” in that sense, but that in no way implies that the divorce is always happening over the objections of one of the parties, though of course that is always possible. In my case, both parties wanted to move on, did so without acrimony, and remain friends. The court is involved in adjudicating the distribution of assets and children. It’s nonsense to claim that innocent people have their children ripped away from therm – the courts decide what is best.
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    2. What the author wants here is blame. It’s not good enough that the couple no longer desires to be married – somebody has to be blamed. Somebody has to be at fault. There has to be someone we cal all look at and say, “It’s N’s fault.” That’s of paramount importance to an organization like the Church, that is based on vengeance and retribution. The author apparently has not been through a divorce. Most couples work through their lawyers to come up with an agreement satisfactory to both with regard to the assets and kids. The sooner they come to terms, the less they spend on lawyers. Only if a couple fails to come to agreement, would the court determine the terms. There is also a concept of contested vs uncontested divorce.
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    3. The author describes a scene in which children are being used as pawns, but fails to consider the ramifications of that marriage remaining intact and the potential harm to the children by forcing them to live with parents who can’t stand each other. There are many cases where the parents stay married for the benefit of the children. Sometimes this is good, sometimes it’s the worst thing they could do. These issues are never black and white.
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    4. Who does the author suggest should arbitrate these issues if not the courts – the Church? Which one? What if the spouses don’t belong to the same church, or belong to now church? The last place I would go for a divorce is to an organization of disordered, celibate virgins dressed up in robes insisting that we call them “Father” though they have chosen to remove themselves from the human gene pool. If the author disapproves of the court handling divorce settlements, please suggest a better alternative, while we take mention of the fact that marriage is a civil contract in the US. A couple may or may not consider themselves married in a church – that matters not a whit. It’s a civil procedure arbitrated by the courts – clearly the most logical and sensible approach.
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    5. I agree – physical violence is a legitimate cause for divorce and this issue does not come into play when discussing a no fault divorce – so why is the author discussing it? The author raises some hypothetical cases without providing real examples, statistics or sources for anything he’s said here.
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    It’s time to recognize that we don’t live in the Iron Age any longer. Back then the average life was 35 years or so. A couple got married young, punched out a dozen kids and a few of them survived. If they were lucky they lived long enough to maybe have a grandkid or two and then died at the ripe old age of 40. Today we live beyond 80 years, and for many of us, that leaves plenty of time for both partners to strike off in new directions, to live more fulfilling lives, to select their next partner with more care than they may have as youngsters.

    Baskerville’s credentials seem to indicate that he doesn’t like women and thinks men are being taken advantage of. I’m sure that happens from time to time, but it’s hardly the rule. The woman usually ends up with the worst deal because the man was the main money earner. In this brave new world, women have the ability to be the breadwinner. Perhaps our author disapproves of uppity women stepping out of their biblical role as chattel?

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