· Columns By Date

Search Quinn Columns

Go to
Managing Your Money

Go to
Business Section

Changing Divorce Laws Is a Financial Issue

Should the divorce laws be changed, to make marriages harder to dissolve? Laws to this end have been proposed in Michigan and Iowa, and are being discussed in a handful of other states.

The driving force is social and moral: an attempt to make people work harder at their marriages, especially for the sake of the children. Finances are an issue, too. Tougher laws, it's thought, improve the bargaining position of a deserted spouse.

When discussing divorce, flat statements almost always are wrong. In general, children do better with both parents around, even when the parents don't get along. But that may depend on whether they keep their fights under wraps. Overt fighting may be just as destabilizing for children as divorce.

The activists want to discourage divorce by modifying the no-fault laws, which have ruled the courts since the early 1970s.

Under no-fault, the judges don't care who was more to blame for leaving the marriage in ruins. Instead, they focus on practical issues: dividing the property, deciding on spousal maintenance, settling custody of the children and providing for child support.

Who's at fault may affect the financial deal but not the divorce itself. This especially angers men who have to pay when their wives move out.

In most states, one spouse can force a divorce even if the other spouse wants to patch things up. That's what the activists want to change.

Take the proposed law in Michigan. Consensual divorces could still go ahead (with education and counseling, if children are involved). But if Sam wants to split and Sarah doesn't, Sam would have only one way out. He'd have to prove Sarah guilty of one of five specific marital faults: adultery, desertion, drug or alcohol abuse, a prison term of three or more years, or "significant or repetitive" physical or mental abuse.

Sarah may be mean as a snake, but that alone probably wouldn't get Sam sprung.

Maybe Sam and Sarah would reconcile, as the activists hope. Alternatively, Sam might desert, or get so mean himself that Sarah gives in, or maybe pay Sarah to go away.

Money is the other issue in the push for divorce reform. No-fault, combined with the rise of female employment, changed the rules on how marital money is split. Women get much less alimony than they used to. By contrast, when there's property to split, they may get more of it.

That's often a plus. In the old days, alimony often wasn't paid (just as child support may not be paid today). Property, you get to keep.

But women are angry, especially at husbands who leave to marry someone else and take a lot of the assets with them. They hope to get better financial settlements by threatening to refuse divorce. "Removing no-fault will take away some of the helplessness of being divorced," said Maggie Gallagher, author of "The Abolition of Marriage: How We Destroy Lasting Love."

That might be so in individual cases but perhaps not for women in general. In New York today, one spouse can prevent divorce -- yet average financial settlements are the same as those in other states, said Brooklyn Law School professor Marsha Garrison. New York's divorce rates also are comparable with those of other states in the region.

I disagree with the critics who say that people divorce on whim. I haven't known one divorce that wasn't long in coming (at least for the party who left), hard-thought and agonizing.

Gallagher correctly says that people are worried about what's happening to children. But the law is most successful when it reflects what people want to do anyway, said Los Angeles attorney Ira Lurvey, chair-elect of the American Bar Association's Family Law Section. Unhappy couples want to divorce, and will worry about the children later.

Forcing people to stay in marriages they hate would only cause more problems, Lurvey said. It would also bring back poisonous lawsuits charging "fault." You have to have been there before to remember how awful it was.