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Breaking up is easy to do

Divorce | As New York completes the no-fault divorce revolution, both conservatives and feminists voice concerns about the effects on women, children, and the institution of marriage

Issue: "Crossing the Rubiocon," Aug. 14, 2010

Two days after Christmas in 1993, Thomas McClintock's wife told him she was leaving him. After five placid years of marriage, he was shocked and willing to do whatever it took to keep her.

"I thought we were a good match," he said. "I genuinely loved her. . . . We enjoyed the mundane things about life-going grocery shopping. . . . It wasn't all that great but it wasn't that bad and I thought it was something we could work on."

But days later she left her job, her dog, her house, her country, and her husband. She came back a few months later. They sat down and divided their finances. Then she was gone.

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McClintock, then a resident of Virginia, said he considers himself a "victim" of unilateral no-fault divorce: "What other kind of legal contract can you end like that without any kind of legal consequences?"

New York has become the last state to pass no-fault divorce legislation, which in late July awaited New York Gov. David Paterson's signature. Under New York's current law, couples can only divorce due to cruel and inhumane treatment, adultery, abandonment, or after a separation agreement that lasts for a year or more. Under the new legislation, if one partner states under oath that the marriage is "irretrievably broken for a period of at least six months," the marriage can be dissolved just like McClintock's.

As the last state to pass no-fault divorce, New York should be a good place to look to see if fault-based divorce actually prevents divorce. But statistics show a complicated picture. New York's divorce rate (2.9 divorces per 1,000 people in 2007) is among the lowest in the 50 states but three states-Illinois, Iowa, and Massachusetts-have divorce rates that are lower.

Ideologues have spun the state divorce rate to buttress a host of political causes. Pollster Nate Silver analyzed divorce rates and showed that rates were lower in states that had not passed constitutional bans on gay marriage. Others have noted that liberal states like Massachusetts have lower divorce rates than Bible Belt states like Arkansas.

But Alan J. Hawkins, professor of family life at Brigham Young University, says that the divorce rate is a less illuminating statistic than it used to be. States that have low divorce rates also tend to have low marriage rates. Arkansas, for instance, has the second-highest divorce rate (5.9 per 1,000 people), but it also has more marriages per year: 12.1 marriages per 1,000 people as opposed to Massachusetts' 5.9 marriages per 1,000 people.

"That doesn't mean you don't form families," said Hawkins of couples who choose not to marry. "You do." Our culture still values marriage so highly that we consider divorce the ultimate failure, Hawkins said-a failure some young couples avoid by not getting married at all but still having children. According to a recent study by the National Center for Health Statistics, 61 percent of women in their late 30s have cohabited, and less than half of cohabitations end in marriage-a shattered family unit that the divorce rate doesn't count.

In practice, New York's fault-based divorce law is as hazy as the statistics. Juries are not sympathetic to fault-finding in divorce cases, even when states divide assets based on who is at fault. In New York, the bar for proving fault is so high that a husband who threw an exercise bike at his wife didn't meet it. In one New York case, a man physically and emotionally abused his family to the point where the wife had to seek therapy, but the jury didn't find him guilty of "egregious fault." A wife committed adultery and told her husband the resulting child was his, but the jury didn't find her guilty of fault either.

Jason McGuire, legislative director of New Yorkers for Constitutional Freedoms and one of the bill's opponents, said he and others are realistic about the fact that divorce happens: "What I'm looking for is legislation that still strengthens the institution of marriage while recognizing the reality of divorce." McGuire mentioned a few measures he thought would accomplish that. Arizona and Louisiana allow couples to enter a covenant marriage, which is more difficult to leave. Utah requires couples with children under 18 to go through "divorce orientation classes" before divorcing. Other proposals give financial incentives to stay in a marriage and stay faithful: For instance, an adulterous husband walking away from a marriage might get just 25 percent of the couple's assets.

Hawkins finds little momentum to make divorce law tougher-not even among conservatives and Republicans, he said. Some of the anti-divorce measures have proved inadequate. For instance, covenant marriage has shown negligible success in Arizona and Louisiana, where only a fraction of couples choose covenant marriages and most of them are at low risk for divorce anyway. And by the time a couple is going through divorce orientation in Utah, it's probably too late to save the marriage.

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