What is needed is reform, a counter-revolution, to bring some sense of justice to our nation's divorce statutes. We must reform divorce law in such a way that marriage is esteemed and those who want to preserve it are empowered and those who want to dest roy it are handicapped. We must develop laws that strengthen marriage and weaken divorce. The health of our children, adults, families, and society depends on it.
Since divorce laws differ from state to state and the political climates and realities in each state are different, it is instructive to put forth general policy recommendations rather than specific policies. First and foremost, divorce law should consider the spouse who desires to keep the marriage together, whether or not there are children involved. Law should give more balance to the rights of the party that desires to preserve the marriage.
Couples who both agree they want to dissolve their marriage without having to show fault should face a substantial waiting period (5 years) before the divorce is granted. A shorter waiting period of one year combined with the requirement that the couple attend a specific number of counseling sessions in that year might be considered, leaving it to the judgment of the couple as to what type of counseling they will seek. Either plan would cause those entering marriage to look at the commitment more soberly and would give the couple that believes divorce is the solution to their problems some incentive and time to work through their difficulties.
Balancing the rights of the faithful spouse would also make the divorce process more just, giving that spouse some bargaining power. The spouse who wants to break the marriage will have to give the other spouse what they want in order to obtain their consent. Where there are marital transgressions, such as desertion, adultery, and physical abuse, division of property should be tied to fault, with the settlement weighted in favor of the non-offending party.
The needs or desires of the adults, should take a back seat to the needs of the children, which are, as a rule, the participation of both parents in their upbringing.
At bottom, our divorce laws should make it more attractive to invest in marriage rather than in divorce. Those seeking a divorce should be informed of the substantial negative consequences associated with divorce that the last twenty years of social science research has revealed. Realizing that there are significant health and financial costs involved in initiating a divorce will cause people to be more sober in appraising the option of divorce. Such policies will serve, to some degree, to help slow the growth of our divorce culture that has proven to be a world-class failure.
From "Finding Fault with No-Fault Divorce Laws," a policy paper by Glenn T. Stanton, social research analyst for Focus on the Family's public policy division, March 1996.