IFAS | Freedom Writer | July 1996 | divorce.html

What God hath joined together
No-fault divorce laws challenged in Michigan

By Bernard A. Drew

"The issue is justice," asserted Michigan Family Forum.

"You can't legislate morality," countered the State Bar of Michigan.

"If people are pointed in the right direction, they will make the right decisions," suggested the Michigan Christian Coalition.

"It's the Ozzie and Harriet divorce bill," scoffed the Michigan chapter of the National Organization for Women.

Facing a divorce crisis in their churches, leading conservative Christian groups have thrown their support behind a bill before the Michigan legislature which would radically change the state's no-fault divorce laws. As Freedom Writer went to press, the critical piece of what is being called a "divorce reform" package had snagged in committee.

Michigan is only one state in which changes have been proposed to no-fault divorce provisions; similar efforts are also at various stages in California, Idaho, Georgia, Illinois, Iowa, Minnesota, Virginia, Washington, and Pennsylvania. The Radical Religious Right is preparing to wage this battle across the land, rolling the divorce laws back to the 1950s.

Focus on the Family in a policy paper describes it as a "burgeoning counterrevolution that is spreading across the nation."

"It's not a Christian issue," said Dan Jarvis, research and public policy coordinator for Michigan Family Forum, an affiliate of Focus on the Family, in talking about his organization's involvement. "The issue is justice. Certainly justice is common to all religions, it's central to the rule of government."

Along with abortion on demand and legalized gambling, Ralph Reed, executive director of the Christian Coalition, included no-fault divorce in a list of "terrible injustices and evils."

A special report prepared by Michigan Family Forum for the Sacramento, California-based Capitol Resource Institute, condemns "the high rate of divorce and family disintegration, and the low value many place upon marriage." The report, "Breaking Up Is Easy To Do," looks at no-fault divorce in California.

Michigan Family Forum and Capitol Resource Center are part of a network of 37 state organizations affiliated with the Colorado Springs-based Focus on the Family, headed by Christian psychologist James Dobson. Through these state affiliates, Focus on the Family is leading a national campaign to abolish no-fault divorce.

Divorce is taking its toll on conservative churches. In June, born-again columnist Chuck Colson revealed some shocking statistics. "Pollster George Barna discovered that born-again Christians actually have a higher rate of divorce (27 percent) than nonbelievers (23 percent)." He added, "Fundamentalists top them all (30 percent); and 87 percent divorced after accepting Christ, presumably aware of the biblical teaching on divorce."

Michigan Family Forum (MFF) is "officially a research and educational organization with the IRS. We do research...," Jarvis explained. MFF and others brought in several witnesses to testify before the Michigan House's judiciary and civil rights committee reviewing the proposal.

"Michigan Family Forum is extremely careful in their testimony and in their literature," Gloria Woods told Freedom Writer. She is president of the state chapter of NOW, which opposes the changes.

"The references to God and to Christianity are careful. But everything they do and every position they take tells us they are indeed a Christian fundamentalist organization working to place Christian traditional values into Michigan law.

"Only they call it 'traditional values,' not Christian values,'" she added.

"We want to promote traditional values in government," acknowledged Glen Clark, executive director of Michigan Christian Coalition, another group promoting the legislation. "If there's a way state government can intervene to stop the horrific number of divorces, [it should]."

"No law can have the power of forcing people to stay together if they don't want to," responded Michael A. Robbins, past chairman of State Bar of Michigan's family law section. "Government is stepping over the line."

"This is just plain governmental interference in a personal decision," Woods echoed.

Jarvis offered an example of why MFF sees the need for changes in the law: "It's not fair that some guy goes through medical school, has a 20-year practice, then can get out of a marriage, leaving the wife high and dry, having to take a job flipping hamburgers."

If the wife isn't in favor of the divorce, it would be more fair if she at least had more clout in arriving at an equitable settlement, Jarvis asserted.

"This has been their consistent statement all along," Woods said. "They usually portray an older woman, a wife and mother in a marriage for many years." She noted these women are a statistical minority; the average age for divorce for women is 24-30.

"They say that by allowing her to refuse consent to a divorce gives negotiating power," she continued. "We've never been able to get them to say what the negotiating power is...."

"It took two to get into marriage, it should take two to get out," Jarvis commented. "One person has what he/she wants, consequently the one who wants to remain in marriage has to come to the bargaining table and meet demands. You end up with a situation, say the guy wants a divorce, the wife doesn't. She wants the kids, money. He says, 'Don't push too hard, I'll go for the kids.' So they split 50-50, sell the marital house. The wife and kids move to an apartment. She has lesser life skills; after divorce, the wife and children's situation is worse than prior to the divorce."

"The woman they describe is uncommon and of the 1950s and 1960s," Woods of Michigan NOW stressed. "Today a woman in her 50s raising a family is more likely to have worked.

"It's a good indication of where Michigan Family Forum wants to take us back to they're more comfortable with the '50s, though it's more a television '50s than a real-life '50s.

"It's the Ozzie and Harriet divorce bill," she said. "If Ozzie wanted a divorce, according to the Michigan Family Forum, Harriet would be protected."

"One of the main arguments is they're trying to give a woman an edge in negotiation," observed Robbins. "But that's not what the bill says. It says the court shall not grant a divorce unless one thing is met fault."

"They should just come out and say that if one party is found at fault, an economic advantage should be given to the other...."

Traditionally, divorce was granted upon proving fault in a few narrow categories.

"Since most states limit[ed] the kinds of 'guilt,' or grounds that [were] serious enough to allow divorce," explained Jan Andrew in Divorce and the American Family (1978), "couples [often agreed] to lie in court, making the breakup of their marriage fit the state's formula."

Following California's lead in 1969, all 50 states now have some form of no-fault divorce legislation in place. Michigan put its provisions into effect in 1972.

Under no-fault, "neither spouse must prove that the other spouse has been guilty of misconduct. In fact, any misconduct is essentially irrelevant to obtaining the divorce," outlined Dan Sitarz in Divorce & Dissolution of Marriage Laws in the United States (1994).

Michigan Family Forum has only recently eyed divorce law reform, Jarvis said. "Two years ago we made inquiries among our state legislators to see where they stand on the topic. A year and a half ago we hosted a breakfast and made specific recommendations."

Jarvis said religious and political leaders debated whether to introduce the bill, in the state Senate, which has 38 members and was seen as the more likely route for passage or in the House of Representatives, which has 100 members and "is the hardest" to secure passage. Both have a Republican majority.

The decision was made for them when Representative Jessie Dalman (R-Holland) filed HR 4432 last year.

"We came together," Jarvis said. "She unveiled her first package and we've worked together since. It was one lawmaker and one group heading in the same direction, crossing paths."

The legislation's purpose, as Rep. Dalman described in Michigan Lawyers Weekly, "is to protect innocent children and nonconsenting spouses caught in the aftermath of failed marriages. It is the economical and emotional fallout from divorce that devastates children into poverty and afflicts society with numerous problems.

"We cannot, in good conscience, ignore a divorce system that makes it easy to destroy families," she said.

"Both parents at home would be a good situation for everybody," said Michigan Christian Coalition's Clark. "Look at the inner cities where there are so many one-parent families. This often leads the children to bad things, crime and so forth. That doesn't mean there aren't a lot of single moms doing a fabulous job. But even they admit it would be better to have a father and mother in the home."

Political reality has meant the bill has evolved. "The original bill 18 months ago would have prohibited divorce unless it was in the best interest of the children. Now it has taken a significant change," Jarvis conceded. "A number of things were unworkable. The children would have had to have an attorney. What if the woman was abused? She could have been forced to remain in the marriage situation."

The bill as refiled on February 16, 1996, would have continued no-fault divorce in some situations if both parties agreed. But if there was a dependent child, or one party objected, one of six "faults" would have to be established to secure divorce: adultery or "deviant sexual intercourse," physical incompetency at the time of marriage, one party imprisoned for three or more years, desertion for two or more years, alcoholism or drug addiction, or extreme cruelty.

The wording has since been changed to allow consensual, no-fault divorce even if there are children, Robbins, past chair of the State Bar of Michigan's family law section, said. But he nevertheless found the fault provisions ridiculous.

"One party can just pick up and leave, and the other party, generally the woman, would be in a worse position. At least with divorce, she would be getting alimony and child support. With this, she could be 'married' but no better off."

He envisioned "all sorts of repercussions": more abandonment, more people living together and not getting married, more children out of wedlock, "a field day for lawyers," hearings for every case, court dockets congested, more adversarial situations, more hiring of private investigators, more perjury. "This was the law until the 1970s and it was changed for these same reasons," he pointed out.

Jarvis complained that the bill has been portrayed in the press with this retro imagery. "There's a lot of misinformation," he said. "I've not seen a Michigan paper that lets people know that most marriages would not be affected if both parties agreed to a divorce. Most call it a return to the old fault system where a couple was forced to lie and hire private detectives."

If there's misinformation being published, the Christian press appears to be equally guilty. Christianity Today in its April 8, 1996 issue, for example, said, "Dalman's proposals would eliminate unilateral no-fault divorce, except in instances where physical abuse, desertion, adultery, substance abuse, or imprisonment can be proved."

Focus on the Family Citizen, in its January 15, 1996 issue, harped on any form of no-fault divorce as "the murder of marriage."

Such stories may be an attempt to make the best of a poor situation. Iowa has already rejected change from no-fault, Rob-bins said, and the Michigan measure is being watered down and still may not pass.

The present package, according to aide Linda Cokas in Rep. Dalman's office, includes 12 bills and one House concurrent resolution. The bills fall into three categories: premarriage (including a shorter waiting period and a discount in the marriage license fee if they have had counseling), predivorce (including mandated counseling), and postdivorce (if there are children, a plan must be prepared to assure joint decisions in child-rearing).

All were voted out of the House Judiciary Committee in mid-May except a provision which "would encourage the state bar to encourage family law practitioners to become certified in family law," Cokas said.

If proponents can secure a ninth vote on the judiciary committee, the bill could go to the full legislature before summer recess, Jarvis said optimistically.

"It's lost steam," in Robbins' view. He suggested that with all the publicity the bill has gotten, and all the emotional testimony taken in including that of several children if it doesn't have the votes now, it won't in this session and it will have to be refiled for the fall.

Dalman admitted to the Detroit Free Press on May 28, 1996 that supporters "still have some work to do."

Even the Michigan proposal's apparently less controversial aspects have raised questions. The bill calls for counseling by licensed or certified professionals, or official representatives of religious organizations.

In written testimony, Michigan NOW asked that religious counselors also be professionally trained and state licensed. "But it really sets up an inconsistency of religious professionals whose religion does not allow for divorce," Woods said. "How could they counsel? Could you see religious professionals in this business and their main agenda would be to convince these people to stay together? It would not be in their interest to have a short counseling program: cover the points and move on. There's no time line [built into the legislation for the counseling to be completed]. If a Catholic priest were conducting the counseling, it would probably last a lot longer. We have a real concern with that.

"There need to be limits. A counselor has to be agreed to by both parties; one could coerce the other, in order to get a divorce, to go see their pastor. We can see some pressures."

Obvious church-state questions also arise if the law includes religious professionals as state-approved divorce counselors. How can the state endorse religious counseling, and, perhaps more important, how could religious freedom be maintained if these divorce counselors are required to receive a state license?

The strongest area of resistance to the legislation, MFF's Jarvis granted, "is a concern for a woman being abused to be able to get out of a bad situation. Typically the husband likes to exercise control and won't agree. She has to demonstrate some fault, the lowest threshold of proof.

"If that's the case," he suggested, "the judge generally can say there is good evidence of abuse; if he errs, it's on the side of safety for the woman."

A primary concern is that the Michigan bill "would make it harder for a battered woman to divorce her batterer," Woods confirmed. "It places the battered woman in a dangerous situation" if a divorce might go through a lengthy court process.

Still, if the issue holds up the whole bill, Jarvis said, "to pick up the last vote or two," proponents are "discussing a waiting period before getting a unilateral no-fault divorce." This third option, after mutual consent and proving fault, would be an extended waiting period of four years. "We could live with that," Jarvis said of the compromise.

Michigan NOW's Woods discounted the third alternative as it "sets the woman up for four more years of a power control situation. We do not see it as solving the problem.... The woman would have to fight it out twice: once for assent, child maintenance and custody, then four years later for the divorce."

Woods said it is apparent Michigan Family Forum and others favoring the legislation are working to craft something that will pass. She said the bill has a good chance, as there is not widespread awareness of the bill's contents.

"When it was first introduced, many dismissed it as so out of the mainstream they did not have to worry. But we are very concerned that it could become Michigan law," the NOW chapter president said.

"I think one thing the Michigan Family Forum and Michigan NOW can agree on is many people do not receive just and equitable settlements under the current no-fault divorce law," Woods said.

She suggested, rather than what has been filed, a program of judicial education. "In Michigan, far too many decisions are not in line with Michigan law. For example, there are 12 equally weighted issues a judge needs to address before deciding on child custody, but we see them weighing a financial situation more heavily than, say, domestic violence. We see education as a key to women getting more equity."

Beyond that, she recommended some laws to give better equity in negotiations, so that the one with the most money doesn't always win out.

State Bar of Michigan's Robbins, too, said change is needed. "But if we want to lower the divorce rate, we should focus on problems causing divorce in the first place," he said, suggesting an emphasis on counseling before and during a marriage. He said creation of a family court, which could pay close attention to the issues, and better enforcement of child support laws and possibly new alimony laws would help. "We could always have a better system," attorney Robbins said.

Skipp Porteous, national director of the Institute for First Amendment Studies, believes that "groups such as Focus on the Family and its affiliates would be better off working within the churches to build better marriages, and not imposing its biblical views upon the rest of society."

  • Sidebar: National divorce statistics
  • Sidebar: Policies for the counterrevolution

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