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States Put Minor Speed Bumps In Divorce Path


Marti Swan didn't want her marriage to break up. But when her husband of 15 years filed for divorce here and moved in with a girlfriend two days later, she says she could do nothing to stop him.

The swift divorce has taken its toll. The couple's two daughters have grown withdrawn. Ms. Swan is working four jobs but is near bankruptcy. Her ex-husband is "miserable," Swan says, "I think he regrets it."

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Growing numbers of Americans, like Swan, say no-fault divorce laws discriminate against people who want to keep their marriages intact. Today, surveys show roughly half of all Americans favor changes that would make it more difficult to get a divorce, a significant increase from a decade ago.

But despite the conservative shift in attitudes - reflected in recent books such as "The Abolition of Marriage," by columnist Maggie Gallagher, and the coming "The Divorce Culture," by Barbara Dafoe Whitehead - the movement to roll back America's no-fault divorce system is hitting roadblocks.

Divorce as an issue is so divisive, and often close to home, that many politicians are reluctant to take a strong legislative stand, say advocates of the movement.

"The question of divorce is about us, the mainstream and middle class of America," says William Galston, professor of public affairs at the University of Maryland and a former policy adviser to President Clinton. "It's not an issue we can discuss without reflecting on our own shortcomings."

Some of the boldest attempts to revive fault-based divorce, in Iowa and Michigan, have stalled. But a flurry of more-moderate proposals aimed at strengthening and preserving marriages and mitigating the impact of divorce on children have fared better. These reforms fall into three broad categories:

*Mandatory parenting classes and plans.

Several states now require classes aimed at helping parents better understand the practical and emotional impact of divorce on their children. In July, such classes became mandatory statewide in Iowa.

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Over drinks and sandwiches, parents in Davenport take part in a four-hour program called "Children in the Middle" to learn how to help children from infancy to college-age cope with divorce. "Some [parents] are so deep in anger or denial that they can't see the children's needs," says instructor Barbara Newcomb.

Under a bill scheduled for debate on the Michigan House floor this week, courts would require all parents who agree to divorce to submit detailed parenting plans covering issues such as visitation, discipline, and education.

*Delaying divorce.

In Georgia, Oklahoma, and Idaho, bills have been introduced that require marriage counselling and a longer waiting period prior to divorce.

In Idaho, state Representative Tom Dorr proposed a bill in February requiring a one-year waiting period for divorce and eight, hour-long counseling sessions in cases where one spouse objects or minor children are involved.

Idahoans want "some speed bumps constructed on the road to divorce," says Mr. Dorr.

He plans to reintroduce the bill next year.

*Strengthening marriage.

Several states including Minnesota and Michigan have introduced bills mandating pre-marital counseling. Also, bills in Colorado, Washington, West Virginia, and Minnesota provide for couples to voluntarily enter a contract to make their marriage harder to dissolve.

In Colorado, for example, a proposed bill requires courts to uphold marital contracts in which couples agree to submit any disputes to a third party. Such contracts would supercede no-fault divorce laws.

While applauding these more moderate steps, the advocates of fault-based divorce - including some Republicans and Democrats, feminists and promoters of men's rights, child advocates and evangelical Christians - are not giving up.

In some states, grass-roots campaigns are working to rally the public against easy divorce.

"Society is ripe for this effort," says Tom McMillen, director of the Rocky Mountain Family Council in Denver. Last week the council launched a state-wide media drive to sway more Coloradans against no-fault divorce. In one public radio announcement, set to lullaby music, a little girl asks her mother if "Daddy will come back" if she promises to be good.

"Marriage is not just a lifestyle choice, it's a critical institution that allows our culture to move forward," says McMillen, noting Colorado's higher than average divorce rate.

McMillen argues that the institution of marriage has crumbled since California instituted the first no-fault divorce law in 1970. Today, all 50 states have no-fault divorce - allowing either spouse to divorce unilaterally. The legal shift contributed significantly to America's rising divorce rate, which surged 34 percent from 1970 to 1990, according to a 50-state survey published last year in the Journal of Marriage and the Family.

Advocates of divorce law reform see fractured families as the source of many societal problems.

Studies show that children from broken homes are more likely to do poorly in school, commit crimes, bear children out of wedlock, and divorce.

Divorced women also suffer a drop in income ranging on average from 30 percent to 70 percent, academic research shows. More than half of all female-headed households with children live in poverty, compared with only 10 percent of all other families with children, according to government statistics. And men who divorce are said by medical experts to experience greater health problems and higher rates of suicide than married men.

Critics, however, including some state bar associations, are skeptical that a return to fault will prevent the break-up of marriages and the toll on children. "I don't think a simple change in divorce law is going to rejuvenate a golden age of Ozzie and Harriet," says Howard Davidson, director of the Center on Children and the Law at the American Bar Association.

Mr. Davidson and others argue that the requirement to prove fault would escalate the cost, duration, and acrimony of divorce proceedings. It might also trap people in abusive relationships, increase cases of desertion, or lead one spouse to use bribes or threats to win consent from the other.

"This would create a return to the system of blackmail we had under the old fault-based system," warns University of California, Berkeley, Law School Dean Herma Hill Kay, who helped draft California's no-fault divorce law in 1968.

Such considerations have made major reforms to divorce laws difficult. "I have a lot of undecideds," admits Michigan state Rep. Jessie Dalman, who introduced a sweeping 13-bill divorce reform package as part of a flurry of divorce legislation that started last year. "This is controversial. It takes a lot of one-on-one education," she says.

Ms. Dalman is waiting until after the November elections to try to muster the votes needed to push forward her most radical measure: a bill requiring that if one spouse refuses to divorce, the other must either prove fault (physical or mental abuse, adultery, chemical dependency, felony, or desertion), or undergo a four-year wait. "This puts the person who isn't at fault and doesn't want a divorce in a much stronger bargaining position," says Dalman.

In Iowa, a bill similar to Michigan's backed by Gov. Terry Branstad failed to make it to the floor last spring. He is considering whether to revive the bill. "He's gauging the support," says staff lawyer Paula Dierenfeld.

Those hardest hit by quick, easy divorces are typically middle-aged women, who are often unprepared to raise and support a family alone.

Despite working 60 hours a week, Swan in Davenport, Iowa, says buying her daughters new shoes is a stretch. "I am just trying to keep my nose above water," she says in a break from her bookkeeping job.

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