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Debate Club

Finding Fault With No-Fault Divorce?

Justin Wolfers and Katherine S. Spaht debate.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday

New York is the only state in the country that doesn't allow no-fault divorces. While Chief Judge Judith Kaye recently proposed that the state permit them, the legislature has been slow to turn the option into law and its skepticism has earnest support. Divorce is costly to the treasuries of the federal government and state governments, according to recent studies, and it tears at the social fabric of communities. Though other studies suggest that no-fault divorce may decrease domestic violence, among other problems, feminist scholars argue that no-fault divorce harms women by failing to take into account the non-economic contributions they make to their marriages.
No-Fault Divorce

The Same—and Different
To change the laws of divorce, it may not be the law that has to change.

Divorcing Fact From Fiction
Even the best judge may not be able to tell when a marriage is over.

Is it time to reassess no-fault divorce?

Justin Wolfers is Assistant Professor of Business and Public Policy at The Wharton School of the University of Pennsylvania. Katherine S. Spaht is the Jules F. and Frances L. Landry Professor of Law at the Paul M. Herbert Law Center of Louisiana State University

Wolfers: 3/20/06, 08:09 AM
New York is in the unique situation among all U.S. states of being able to decide its divorce laws in light of substantial analysis of the experience of other states when they made this change. And so I am sure that we can all agree that the evidence from these historical changes that should inform the decisions.

So let me begin simply by stating the facts that I believe social scientists have rigorously established.

First, the divorce rate rose a lot in the 1970s, but it rose just as much in states that were changing their divorce laws as in those that did not. As such, it seems difficult to ascribe a large role for divorce laws in causing higher divorce rates. My own estimates suggest that divorce rose by perhaps 10% for a few years as the courts worked through a queue of people waiting to divorce under the new laws, but that this effect dissipated within a few years, and it is simply impossible to find any effects of divorce laws on the divorce rate a decade later.

Second, states that adopted unilateral divorce laws saw a large decline in rates of domestic violence (and also spousal homicide), while other states actually saw domestic violence rates rise. In research with Betsey Stevenson, we suggest that the decline in domestic violence may declined by as much as a third following the adoption of liberalized divorce laws. The logic for this result also seems quite powerful: If a woman is empowered to leave an abusive marriage even against the objection of her abuser, she may leave. Or he might get the message, and cease being so abusive. Or perhaps, the threat of divorce prevents violence from being used during everyday conflict resulting in less relationships escalating to abusive situations. We suspect that all these explanations describe what happened in states that previously changed their laws.

And third, the flipside of this greater freedom to leave a marriage is a greater uncertainty that a marriage will survive, and Betsey Stevenson has shown that this makes spouses less likely to "invest in their marriage", such as by putting a partner through business school, or relying on their spouse for income while taking care of the home and children.

Fourth, Imran Rasul has compiled some very convincing evidence that people are simply less likely to get formally married, to get remarried, or they are more likely to delay marriage for a few years following divorce law liberalization. This is an interesting finding, and goes against many people's previous guess that easier divorce would lead to easier marriage.

So I'm an empiricist, and these data seem to me like the obvious starting point. What does all this suggest? Perhaps that the ideologically-charged debate is really much ado about not much: the form of the modern family seems unlikely to change much in New York in response to these laws. As much as I've talked about the directional findings, overall the magnitudes are typically pretty small, suggesting that this is an interesting social policy question, but that this change will have little or no effect on most people. That said, for the few people trapped in particularly bad marriages, this legal change could be enormously beneficial, indeed life-saving for a very few.

None of the evidence presented thus far has discussed the negative outcomes typically associated with divorce. This is because the legal change being proposed is unlikely—given past evidence—to have much of an impact on the likelihood that a couple divorces. So those who believe divorce to be a social scourge may want to focus their efforts elsewhere. Equally, for those in the very worst marriages, this could turn out to be a really important law, and it is with an eye on those folks that I think we'll ultimately see feminist scholars come out in support of these laws.

Finally, my discussion partner, Kathrine Spaht, is living in one of the most interesting states in the nation—at least in terms of their divorce laws. Louisiana lets couples choose whether they want to get married under something like New York's current system, or under something closer to what has been proposed for New York. And people are voting with their feet: the new stricter "covenant marriage" remains incredibly unpopular, with only a small fraction of marriages choosing this option despite the public protestations of the governor. Last I heard, something like 97% of couples were choosing the no-fault divorce option, and if this is right, it suggests that it is likely that the same desire for more liberal divorce laws is also bubbling under the surface in New York.

I'm interested in learning what Kathrine has to say, though.

Spaht: 3/20/06, 12:35 PM
New York, I agree, has the advantage not enjoyed by the other 46 states who by the middle of the 1970s followed California's lead and enacted unilateral no-fault divorce. Many of the redactors were very well-intentioned and optimistic that divorce under a unilateral no-fault scheme would prove less harmful and less expensive. It just so happens that they were wrong.

While I also agree that social science empiricism has become more sophisticated in the last twenty years I am not entirely convinced, as Justin may be, that social scientists have "rigorously established" certain facts.

True, the divorce rate in the United States reached its peak in approximately 1981. Nonetheless, there is disagreement among social scientists about how much of that increased rate in the 1970s was attributable to the change in the law from a fault-based system to a "no-fault" system. As one would expect, it remains difficult for social scientists to control for all the variables that may have contributed to the increase. I cannot evaluate your own estimates, Justin, about how much of the increase in the divorce rate is attributable to a change in the law since I haven't read your paper, but I would agree that 10% is not an unreasonable estimate.

Today, a far more important figure than the current divorce rate, if it were obtainable, would be family "breakup" rate, as Stanley Kurtz has argued in a piece he wrote for The Weekly Standard. With the increase in cohabitation—which some social scientists peg at having quadrupled since 1960—and in the numbers of children born to cohabitants, a more meaningful number would be the rate of family dissolution. If, as other social scientists argue, cohabiting couples—even those with children—break up at twice the rate of married couples, the divorce rate doesn't represent the full measure of family fragmentation in the United States or the instability of families rearing children.

Furthermore, based on the latest demographic information New York is a state where young men and women postpone marriage until they are older (the average age of marriage in New York is far older than in the South and certain areas of the Midwest) and cohabit in higher numbers. Both are demographic trends present in European countries with low rates of fertility and high rates of out-of-wedlock births (the latter, for instance, stands at 50% in Denmark). Based on the European experience, marriage in New York may be more fragile and in greater danger than in other parts of our country. That, of course, is mere speculation, but the work of Imran Rasul would suggest that it is not irrational to fear the effect of liberalization of divorce laws. It is not easier marriage we should have ever feared, but the growing phenomenon of no marriage, i.e. non-marital cohabitation.

I believe most Americans would agree that as a universal, social institution intended to be the principal locus for child bearing and rearing, marriage is in trouble in this country. Law as a form of rhetoric influences and helps shape the culture of marriage. Easy divorce that makes for an "easy" exit communicates society's view that it has little interest in the lasting commitment of two people to love and care for each other and to bear and rear the next generation. Thus, a husband or a wife may internalize that if he or she has made a mistake, either one of them can remedy it by a divorce. Greater freedom to leave does create greater uncertainty and less willingness to "invest in their marriage," which, as Paul Amato's work has shown, becomes a self-fulfilling prophecy often ending in divorce (because the quality of such marriages is lower). Steve Nock, the sociologist at University of Virginia studying covenant marriage couples in Louisiana, has found that covenant couples who bind themselves to a stronger form of marriage—or, because divorce is harder to obtain, at least a longer form of it—enjoy a higher quality of marriage than do their randomly-chosen standard married cohorts. I will leave discussion of Louisiana's experiment with covenant marriage until tomorrow.

Ultimately, what empiricists can't quantify is the impact of divorce on children and their interior life, both on minors who are the focus of child-custody disputes and on adult children of divorce. (It is worth nothing that empiricists can quantify and have quantified the social pathologies of children of divorce, which include higher rates of suicide, juvenile delinquency, dropping out of school, sexual promiscuity, and drug and alcohol abuse.) Two new books recount that interior effect of divorce: Between Two Worlds by Elizabeth Marquardt, which contains survey data from children of divorce that appeared in a book she co-authored with Norvel Glenn, and The Way They Were by Brooke Lea Foster.

We owe our vulnerable children more. We owe them assurance that if, as Amato and Booth describe in A Generation at Risk, more than two-thirds of the divorces in this country occur for "soft" reasons, such as "we have grown apart," or "he no longer meets my needs"—and not because of domestic violence—that the law won't facilitate those divorces. Amato and Booth's book argues that marriages that end for "soft reasons," the vast majority of divorces, are good enough from the children's standpoint. Divorce that ends such marriages proves to be the most damaging to the children.

I would begin my opposition to changes in New York's divorce law with the children, but there are other important reasons to oppose the enactment of unilateral no-fault divorce based upon American experience. Those reasons await another posting.

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Wolfers: 3/21/06, 08:36 AM
Katherine makes two points, and both are important: Sometimes couples may dissolve otherwise functional relationships for "soft" reasons—presumably out of either stupidity or selfishness—and this may have an important impact on children.

While both points are relevant to broader debates about appropriate social policy, neither are relevant to the current debate about New York's divorce laws. As its stands, most couples currently have few problems dissolving their relationships for "soft" reasons: one spouse simply fabricates a charge of adultery against the other, and the court will grant a "fault"-based divorce. Indeed, it is precisely the expertise of these couples at manipulating the pseudo-fault based system that means that moving away from fault to a unilateral divorce law doesn't much change the divorce rate.

So then the real issue for New York is not hand-wringing about those who get divorced under the current system, but asking instead about what might change under the new system. It is definitely worth thinking about those extra few marriages that are likely to dissolve and asking who they might be. Given that the main legal change being considered is to allow you to divorce your partner without
requiring them to play along with a charade of adulterous fault, the question then becomes: Just what kind of marriage involves one partner using the law to trap their partner into remaining together? My guess is that it is isn't the folks who "have just grown apart", but rather couples involved in particularly controlling relationships. And I suspect that these are the folks that we might really want to be free of the shackles of a bad marriage. Indeed, Betsey Stevenson and I found that the adoption of unilateral divorce laws led the suicide rates of women to decline by about one-fifth, suggesting that the new law really offers a way out for those who previously saw no other way out.

Katherine is also definitely correct that we need to be thinking about the effects of the proposed divorce law liberalization on children. But again, we need to be more precise about what we are considering. It is easy to compare the outcomes of children of stable marriages and children of divorce and to suggest that the former is better (and as a member of the latter group, my own introspection leads me to very strongly agree). Given this, I'm sure that many of us would support social policies aimed at helping children grow up in stable and happy family circumstances. However this isn't the question relevant to the legal change being considered. While Katherine is contrasting outcomes for children from good marriages with outcomes from sometimes bitter adversarial divorces, divorce law cannot take a bitter couple and make them stable and happy. Rather, the relevant question is whether it is better for the child to grow up in a family suffering a bad marriage or in an alternative family form following a non-adversarial (no-fault) divorce. And on this question, I think that it is difficult to be confident which is best.

Spaht: 3/21/06, 11:37 AM
First, I must observe that any change in divorce law that liberalizes the rules of dissolution of marriage necessarily, I believe, is relevant to the broader debates about appropriate, or desirable, social policy. Furthermore, I believe that there are abstract dimensions to changes in law, and thus to public policy, that cannot be empirically measured. That is why I referred in my last posting to law as a branch of rhetoric. Ideas have consequences, and ideas communicated through law are especially powerful because by their nature they carry the imprint of societal approval.

Yet, I am willing to engage you, Justin, on the two points you consider especially relevant to the proposed change in New York law: first, what would change under the new system that would be worse than the charade of manufacturing "fault" grounds, such as adultery; and second, "whether it is better for the child to grow up in a family suffering from a bad marriage or in an alternative family form following a non-adversarial (no-fault) divorce."

What would change under the new system? In my last post, I emphasized the fact that current "no-fault" divorce is unilateral. It is more apt to refer to current "no-fault" divorce provisions as unilateral repudiation. Despite the "sham" of manufactured grounds for divorce in the nature of fault, alleged to occur frequently in New York, the current system requires essentially the consent of both spouses. The "sham" is permitted by judges who do have a choice and could require proof of adultery that does not include the testimony of private detectives, but more importantly the testimony of the corespondent. Until the 1970s, judges in other states were relatively stringent as to what evidence they would permit to be introduced to prove fault grounds.

But even if the judges permit a "fraud upon the law" in the form of manufactured grounds for divorce, both spouses must participate in this "fraud." Both must agree to the divorce, and if one spouse does have grounds and has them exclusively, he or she has leverage in financial and custodial arrangements. This is the reason that Raoul Felder, New York's premier divorce attorney, opposes the change in New York divorce law: "It means that every man who has lots of money and wants to trade in for a new model doesn't have to go before a judge and explain why he wants to break not only a legal, but a moral and ethical contract." That leverage is not ephemeral. It can translate into more child support, more alimony, more marital property, or support for children who are no longer minors but want a college education. Marcia Pappas, the president of New York's chapter of NOW, opposes the change for the same reason: "The problem with unilateral no-fault divorce is that it hurts women by removing the incentive for the moneyed spouse to make a settlement ... instead of negotiating with a dependent spouse—whose only leverage for avoiding an impoverished post-divorce life [which we know empirically more women have after divorce] may be her assent, or lack of it, to divorce." I agree.

It also satisfies a person's sense of justice that, for example, an adulterous spouse who desires a divorce must bargain with the other spouse, who presently is the only spouse with grounds for a divorce (and Herbie Difonzo documents in his book on marriage and divorce that spouses going through a divorce continue to talk in terms of whose fault caused the breakup) . Under unilateral "no-fault" divorce the adulterous spouse need not bargain with the other spouse, but, to add insult to injury, can file for the divorce himself.

The second question in its very formulation makes certain assumptions: "a family suffering from a bad marriage," "alternative family form," and non-adversarial divorce." Usually it is not the family suffering from a bad marriage, but one spouse suffering from what is not a satisfying marriage. More than 80 percent of divorces initiated by a spouse are desired by that spouse alone. Paul Amato and Alan Booth's book, A Generation at Risk, opined, "Spending one-third of one's life living in a marriage that is less than satisfactory [the two-thirds of divorces for "soft" reasons] in order to benefit children—children that parents elected to bring into the world—is not an unreasonable expectation." Children usually don't suffer as much from what, as seen through the eyes of one of their parents, is a "bad marriage" as they do from the divorce.

Is a unilateral "no-fault" divorce non-adversarial by definition? Absolutely not. What has happened in the 30-plus years since the introduction of unilateral "no-fault" divorce is that acrimony in divorce has not been reduced. It has simply shifted from the divorce proceeding itself to the incidental matters associated with the divorce. Incidental matters like—child custody. This is especially true in instances when a spouse/parent feels as if the legal system has given him or her no redress and treats the wrongdoer just as it treats the innocent (relatively, at least). Today we have the bitterest litigation in connection with the high stakes of child custody. There has been an enormous increase in allegations of sexual or physical abuse by a parent, or by another person that is permitted by a parent. Such allegations are explosive and shut down the normal rules on custody and visitation. I would rather have the spouses accusing each other of horrible conduct than focusing on conduct towards the child that may require gynecological or urological examinations of young children. Acrimony cannot be eliminated from divorce proceedings—that is human nature. Where would you rather see it "played out"?

"Alternative family forms" in fact pose an increased risk to a child—greater risk of sexual and physical abuse at the hands of a stepparent, cohabiting partner, or dating friend. Some of the empirical work examined by Robin Wilson, now at Maryland Law School, on the risks posed to children of divorce by these "alternative family forms" convinces me that I could never consider them (on average) preferable to marriage of the two biological parents.

I promise to address Louisiana's experiment with covenant marriage in the next posting.

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Wolfers: 3/22/06, 07:53 AM
To reiterate: The question is whether it makes sense for New York to move away from a fault-based divorce system. This is important, because under that system a marriage will usually dissolve if that is what both spouses want (they can simply falsify evidence of adultery), while under the proposed divorce system, either spouse can dissolve the marriage.

I think that we both agree that this matters. Our different conclusions reflect different characterizations about who this legal change affects.

I worry a lot about those whose spouses have them trapped in abusive and controlling relationships. Surely abusive spouses among those most likely to exploit the current law to prevent their spouse from finding a better outcome elsewhere. And so unilateral divorce laws offer an escape hatch for abused women.

Katherine has an equally valid concern: "It means that every man who has lots of money and wants to trade in for a new model doesn't have to go before a judge and explain why he wants to break not only a legal, but a moral and ethical contract." That is, unilateral divorce offers an escape hatch through which some men can escape with the fruits of the marriage.

Which of these two problems is more widespread is, of course, an empirical matter, which is why I keep bringing the debate back to data. And the data suggest that unilateral divorce really does save a lot of women from abusive relationships, and it really doesn't have too big of an effect on the divorce rate, suggesting few of the negative spillovers that concern Katherine.

I wholeheartedly endorse Katherine's concern that sometimes one spouse's exit from the marriage also involves them "stealing" most of the fruits of the marriage. But her conclusion is entirely wrong. Instead of forcing couples to stay married where one of them wants out, her concerns provide an important rationale for working to reform property settlement laws. When a woman supports her husband through school she is making an investment in his future earnings. Appropriate property settlements that recognize these investments would ensure that spouses who "want to trade in for a new model" compensate their previous spouse fairly. Katherine is right to worry that women are not appropriately compensated for their investments, but I would argue that all women—even those who commit a marital fault—deserve fair compensation for their contribution to the marriage. So the issue is important, but it is best addressed by property division laws.

Katherine also raises the issue of child custody, but this is a rhetorically-loaded red-herring. While I share her concerns about some parents inventing allegations of child abuse, this discussion seems to be entirely off-point. Katherine's argues that she would prefer acrimony in the divorce rather than the child custody proceedings. But there is no reason to believe that these are substitutes. Surely reducing acrimony at any point in the divorce proceedings will improve all aspects of the process.

On the real child custody issue I'm certain that we agree: custody should always be decided in the best interests of the child.

Finally, it is important to note that even under fault-divorce, the court cannot force a couple to be in love, to sleep with each other, to be civil, to be good parents, to live in the same residence, or even prevent one of them moving in with a preferred boyfriend or girlfriend. The fights about child custody are likely to remain, whether the wife can obtain a unilateral divorce or not. Indeed, the only real effect of a fault-based law is that one partner can prevent their spouse from re-marrying. I've never understood why otherwise pro-marriage advocates are so against a policy whose main legal effect is to permit more marriage (albeit remarriage).

Kathrine and I share many of the same concerns, but it seems that she believes that no-fault divorce laws can cure many more of society ills than seems plausible—or is justified by the evidence.

Spaht: 3/22/06, 02:45 PM
It is because at-fault divorce permits a couple to get a divorce if they both agree that it differs from the no-fault option. Unilateral divorce—unilateral repudiation in over 85% of the cases—is what I oppose vociferously.

I worry about what empirical data supports in terms of who most often seeks a divorce and why. I worry about the couples who seek divorce for soft reasons, which, according to a new Dutch study recently reported in Britain, include "emotional factors, such as non-communication and lack of attention." Those couples are the majority. According to this study, "violence is now blamed for divorce by fewer than half as many women as after the war...." Paul de Graaf, associate professor of sociology at Radboud University in Holland, also observes this trend. "Motives for divorce in the past were much more serious," he writes. "Motives today are much more about personal growth and emotions...." If women file at least two-thirds of the divorces in this country, these less serious motives may mean that in many cases a marriage is salvageable if there is time for both parties to consider the ramifications.

For those women facing physical or sexual abuse, I would make an immediate "fault" divorce available (as is the case in covenant marriage). Awareness of such abuse is great enough that I think proving it by a simple preponderance of the evidence is much easier today than in the past.

I'd also like to note the disagreement among empirical scholars over how much easy divorce affects the divorce rate at the time those grounds for divorce are introduced. Paul Amato, for example, postulates that allowing divorce for "soft reasons" means we can expect more of it in the future.

Reforming marital property laws sounds like an easy solution, but my personal experience in Louisiana and the experience of the California legislature in developing its version of no-fault divorce lead me to be wary of such a reform. In 1990, on behalf of the law reform commission of Louisiana, I carried a package of divorce reform legislation to the Legislature. The package made divorce easier by requiring only two fault grounds and abolishing the prerequisite of legal separation, but it also made alimony more onerous. As in California, the easy divorce provisions passed, but the alimony provisions did not. Consequently, fault remained an absolute bar to recovery of alimony but it couldn't be grounds for divorce. The standard of need for the party seeking alimony remained bare necessities (not standard of living), and the judge was given authority to set a time limit for how long the other spouse was required to pay alimony. The end result was that the economically-needy spouse wound up worse off. I also wrote and got passed in 1986 a claim for contributions to a spouse's education, but it rarely is invoked. My real life experience since 1977 at the Legislature, which is made up primarily of men, is that everyone has an opinion about family law, one generally shaped by their direct or indirect experience. They don't intend to pass laws that might apply detrimentally to them one day. Sorry to be the cynic.

I guess that having taught the subject of family law since 1972, I refuse to accept the basic premise of proponents of no-fault—like you, Justin—that it is fundamentally non-adversarial. That assumption is unrealistic. In one of society's most intimate relationships, one in which public and serious promises are made, there are extremely few divorces that are and/or remain non-adversarial. My concern about the increase in the most reprehensible type of child custody litigation is not a "red herring" but rather a recognition on my part that a spouse who feels betrayed needs someone to approve of the decision to divorce. As Herbie DiFonzo recounts in his recently published book, clients speak in terms of who caused the divorce. It used to be that divorce actions themselves could fulfill this need for validation. Clients continue to speak in those terms but the law fails to take "fault" into account for divorce, even though fault is an issue in a car accident or a contract breach.

If we can't make spouses love each other or take into account the pain their act of divorce will cause the children, at least we can slow down the process and give them an opportunity to determine if their marriage is "dead." What harm does time to reach an agreement do to the majority of those seeking divorces for "soft reasons"? Little. And in the meantime, they might grow together again.

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Wolfers: 3/23/06, 09:36 AM
I think that we have pretty much exhausted this line of debate, and the things that we agree and disagree about are probably reasonably clear. Thus, let me just make two simple points, and then pose a question.

Too much of our debate so far has focused on the effects of divorce laws on the divorce rate. Those effects are small, and moreover, there is no reason to think that characterizations of some current divorces as "soft" would apply equally to the few extra divorces that do occur. So while Katherine might be right that some of those getting divorced under the current fault regime shouldn't, this doesn't speak to whether the few extra divorces that unilateral divorce allows should stay together.

Instead, let me turn to the effects that are not evident in the divorce data. Arguably the main effect of reforming New York's divorce laws will not be to raise the number of divorces, but instead to raise the credibility of threats to leave the relationship if things go sour. If my wife can threaten to leave me if I commit some marital wrong, then this makes it less likely that I would commit such a wrong. The movement toward a unilateral divorce law would make this threat credible. And thus, it seems entirely possible that unilateral divorce laws will re-balance bargaining power in the marriage, away from purely economic threats (which clearly favor men). And I suspect that this may well have salutary effects on the state of our marriages.

And finally, my question for Katherine. She has the benefit of living in Louisiana, which provides a wonderful social laboratory, in that couples can effectively choose to get married either under something similar to New York's current (fault-based) legal regime, or under a no-fault system similar to that being proposed for New York. What are we seeing in this experiment?

My understanding was that even starry-eyed newlyweds were predominantly choosing the no-fault marriage, rather than the fault-based marriage. Is this right? And what does this tell us about the desirability of these two systems? Or are these newlyweds making mistakes that Katherine would have us change?

Spaht: 3/23/06, 03:32 PM
First, please allow me to respond to your last two points:

I don't believe that the effects on the divorce rate of easy unilateral divorce can be effectively measured—and I think Paul Amato would agree. Besides, I believe that Leora Friedberg's work measuring the effect in a state of the adoption of no-fault divorce in the 70s is the best work I have seen on the subject, and she believes it had an effect.

I believe, further, that the law should always legislate for the most common case. If the majority of divorces are for "soft" reasons, we should be adopting at least "road bumps" to slow the process, despite their impact on the minority of cases, involving abuse or physical violence, where couples should divorce. I would provide a new fault ground if physical abuse is not one in New York.

Finally, if your wife threatens to leave you for a marital wrong and she alone has an action for divorce, the adoption of unilateral no-fault divorce undermines her leverage and makes her threat empty since you, who committed the fault, can sue her for divorce (adding insult to injury). Economic threats made possible by restricting the right to divorce to cases where there is fault therefore do more than simply constitute a tip of the scale of justice in favor of the economically weaker party (though they of course counter the favoritism men enjoy under a unilateral no-fault system).

Thank you so much for reminding me about the discussion of covenant marriage. The numbers remain exceedingly low, although my husband and I (by "conversion" of our 35-year marriage), my son and daughter-in-law in San Francisco, and my daughter and her fiancée, who will be in Boston next year, are all covenant couples. I would suggest two reasons for the low numbers. First, starry-eyed newlyweds in Louisiana do not know of the option; and second, they are not being encouraged by their churches, families and/or friends to opt for a covenant marriage.

In the myriad of articles I have written on the subject, I explain the first phenomenon by pointing the finger of blame at the bureaucratic staffs of our clerks of court who are supposed to deliver a pamphlet, a view echoed in an upcoming book by Steve Nock of the University of Virginia. Nock's "confederate" study revealed their obstructionist attitude when a couple comes to apply for a marriage license within 30 days of the ceremony (often too late to schedule the requisite counseling before the ceremony).

The second factor is that Christian churches are not embracing, much less requiring, that the option be adopted by their congregants. In the phenomenon of self-deception that "starry-eyed fiancées" adopt, they believe that divorce will not happen to them, and churches aren't helping them carefully examine this conclusion. Pastors are afraid of liability or losing a couple from their congregation. Priests may be concerned about what have become liberal annulment laws as applied in the U.S. The Christian church, some would argue, has become a part of the world and its consumerist culture (disposable is better, remaining unbound, the value of expressive individualism, selfishly reserving one's options). However, one of the interesting findings from Nock's study is that women are the leaders in covenant marriage (they insist on it), and in a significant minority of "standard" marriages the wife wanted a covenant marriage but couldn't convince her husband. No surprise there.

I would make all marriages "covenant marriages." At least I am not urging (yet) what at least three other writers have—a real "covenant" marriage, one which is indissoluble. Be thankful for small favors.

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