Opinion Divorce,American style

In 1935,for example,reviewing the divorce suit of Louise and Louis Maurer,the Oregon State Supreme Court acknowledged that the husband was so domineering that his wife and children lived in fear. But,the court noted,the wife had also engaged in bad behaviour (she was described as quarrelsome). Therefore,because neither party came to the court “with clean hands,” neither deserved to be released from the marriage.

As the Maurer case suggests,such stringent standards of fault often made it easier for couples who got along relatively well to divorce than for people in mutually destructive relationships. Cooperating couples would routinely fabricate grounds for their divorce,picking one party as the wrongdoer.

This strategy was so common in the 1950s that divorce cases seemingly gave the lie to Tolstoy’s famous observation that every unhappy family is unhappy in its own way. “Victim” after “victim” testified that the offending spouse had slapped him or her with exactly the same force and in exactly the same places that the wording of the law required. A primary motivation for introducing no-fault divorce was,in fact,to reduce perjury in the legal system.

Initially,some states limited no-fault divorce to cases in which both partners wanted to dissolve the marriage. In theory,limiting no-fault to mutual consent seemed fairer to spouses who wanted to save their marriages,but in practice it perpetuated the abuses of fault-based divorce,allowing one partner to stonewall or demand financial concessions in return for agreement,and encouraging the other to hire private investigators to uncover grounds for the court. Expensive litigation strained court resources,while the couple remained vulnerable to subjective rulings about what a spouse should put up with in a marriage.

Eventually every state except New York moved to what is in effect unilateral no-fault,wherein if one party insisted that his or her commitment to the marriage had irretrievably ended,that person could end the union (albeit with different waiting periods). New York has been the holdout in insisting that a couple could get a no-fault divorce only if both partners agreed to secure a separation decree and then lived apart for one year. Otherwise,the party who wanted the divorce had to prove that the other was legally at fault.

In every state that adopted no-fault divorce,whether unilateral or by mutual consent,divorce rates increased for the next five years or so. But once the pent-up demand for divorces was met,divorce rates stabilised. Indeed,in the years since no-fault divorce became well-nigh universal,the national divorce rate has fallen,from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005.

Even during the initial period when divorce rates were increasing,several positive trends accompanied the transition to no-fault. The economists Betsey Stevenson and Justin Wolfers of the University of Pennsylvania report that states that adopted no-fault divorce experienced a decrease of 8 to 16 per cent in wives’ suicide rates and a 30 per cent decline in domestic violence.

Social changes always involve trade-offs. Unilateral divorce increases the risk that a partner who invests in her (or more rarely,his) marriage rather than in her own earning power,and does not engage in “bad behaviour,” may suffer financially as well as emotionally if the other partner unilaterally ends the marriage.

Fairer division of marital assets can reduce the severity of this problem. And fault can certainly be taken into account in determining spousal support if domestic violence or other serious marital misbehaviour has reduced the other party’s earning power.

Contrary to conventional wisdom,it is more often the wife than the husband who is ready to leave. Approximately two-thirds of divorces are initiated by wives. This jibes with research showing that women are physiologically and emotionally more sensitive to unsatisfactory relationships.

It’s true that unilateral divorce leaves the spouse who thinks the other’s desire to divorce is premature with little leverage to slow down the process or to pressure the other partner into accepting counselling. It allows some individuals to rupture relationships for reasons many would consider shallow and short-sighted.

But once you permit the courts to determine when a person’s desire to leave is legitimate,you open the way to arbitrary decisions about what is or should be tolerable in a relationship,made by people who have no stake in the actual lives being lived.

A far better tack is to encourage couples to mediate their parting rather than litigate it,especially if children are involved. To my mind it is better to have regrets about the good aspects of your former marriage because you were able to work past some of your accumulated resentments than to have no regrets because you had to ratchet up the hostility to get out in the first place.