In this past Sunday’s New York Times, Robin Wilson writes:
What accounts for the new resistance to no-fault? Reasons include the growing evidence that divorce often hurts children, feminists’ renewed recognition of the importance of legal protection for mothers raising children, and concerns about the economic disparities created by differences in marriage rates. Gay marriage advocates have also played a role in this shift, by calling attention to “easy divorce,” which they say is the real threat to marriage, not same-sex unions.
Isn’t there a far more important group that Professor Wilson has forgotten to mention? It’s as if she hasn’t noticed that right-wing Christians, not feminists or same-sex marriage advocates, are the people running the government nowadays. Opposing divorce is a Christian right priority, not a feminist or a queer rights priority.
Lindsay at Majikthise, like me, is skeptical of the idea that feminism and gay rights “accounts for the new resistance to no-fault.” But she says she finds this argument of Professor Wilson’s more persuasive:
While I was living in Maryland, my husband, from whom I am now divorced, assaulted me (an assault for which he has since been convicted). On the whole, I had been impressed by how Maryland protects victims of domestic violence. But I also came to understand why the New York chapter of the National Organization for Women has opposed Judge Kaye’s unilateral divorce proposals.
When no-fault divorce advocates say that family law should pay no attention to the reasons why a marriage ends, what does this mean in practice for modern women like me who have careers and have built assets? We are told that we should in effect have to pay our batterers for the privilege of divorcing them. That seems to me, as to many other Americans, not only bad social policy, but deeply and profoundly wrong.
No law will ever be perfect for all abused women; but the harm to Professor Wilson, which is that her abuser got more money in their divorce than he would have in a fault system, is real but also relatively minor. Before we oppose no-fault divorce, we should also ask what opposing no-fault would mean for abused women who don’t have the economic or legal resources of a law professor, and who aren’t able to prove abuse in court. A “fault” law with teeth — for instance, a law that mandates a one-year delay before divorce can be granted, unless abuse is proved in a courtroom — would effectively of tie victims to their abusers, drawing out the process of separation for an extra year.
Furthermore, for many abused women, no-fault divorce seems to improve their “bargaining position” within a bad marriage. One study ((Betsy Stevenson and Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” Quarterly Journal of Economics, 121(1) February 2006)), published early this year in the Quarterly Journal of Economics ((I posted more about these findings here.)) (pdf link), found that when states switched to no-fault divorce, there were substantial benefits for some women:
…Easy access to divorce redistributes marital power from the party interested in preserving the marriage to the partner who wants out. In most instances, this resulted in an increase in marital power for women, and a decrease in power for men.
Our analysis of US data revealed the legislative change [to no-fault divorce] had caused female suicide to decline by about a fifth, domestic violence to decline by about a third, and intimate femicide – the husband’s murder of his wife – to decline by about a tenth.
I can support attempts to reduce divorce rates by providing positive help to stay married (free marriage counseling, for example), although I’m skeptical about how effective such programs will be. But we should all be against attempts to reduce marriage divorce by disempowering people who want to leave marriage — proposals that, in effect, use the law to force people to remain married against their will. These laws will harm battered women most of all; having to prove abuse in court in order to be free of their abusers is a horribly unfair burden to place on victims of abuse. With all due respect, I’d ask both Lindsay and Professor Wilson to rethink their positions.
Hat tip: Feminist Law Professors.
[Crossposted at Creative Destruction. If your comments aren’t being approved here, try there.]
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But we should all be against attempts to reduce marriage by disempowering people who want to leave marriage — proposals that, in effect, use the law to force people to remain married against their will.
Did you mean “reduce divorce” instead of “reduce marriage” in the above?
[Whoops! Thanks for the catch – I’ve fixed it now. –Amp]
And if you need a “for the children” argument, low-conflict divorces (ie no-fault) have been shown to be less stressful for children than high conflict divorces. So forcing conflict seems altogether against the interests of “the children” (or any family member).
A “fault” law with teeth — for instance, a law that mandates a one-year delay before divorce can be granted, unless abuse is proved in a courtroom — would effectively of tie victims to their abusers, drawing out the process of separation for an extra year.
This is the current law in New York. How does NY compare states that do have no-fault divorce?
Yeesh.
… compare to states…
Ahem. Christians also oppose prison rape and misogynistic porn.
Okay, on to the more serious side of my comment. I’ve been seeing here the idea that if one partner decides s/he wants out of a marriage, then it’s misery and hell to force that marriage to stay together. To which I say, only because we have a culture of divorce.
In various entertainment media, we are bombarded with the topos of husband who’s stuck in a boring, unhappy marriage, but then finds happiness when his True Love (almost always meeting the standard of what would be ideal for a man) comes along and he leaves his wife. We can likewise see the flip side of this commonplace with the woman who has the boring, workaday, middle aged husband who finds fulfillment in an affair with, for example, a National Geographic photographer.
That you can recapture the excitement of when you were younger and first started dating and then go on to personal fulfillment by leaving your spouse and starting over is a myth. It is a toxic myth. Like (the vast majority of) pornography’s depictions of femal sexuality, it results in people who think that they should expect something that is utterly unrealistic.
I’m going to further the porn comparison for a bit, for just like porn, such an attitude towards divorce leads to piss-poor relationship skills because it discourages people from learning to value their partners for what they want. It’s exactly the sort of not actually relating to someone as a person that leads them to think “[My wife’s breasts are starting to sag/My husband’s going bald] so I should find someone else for fulfillment. After all, it’s all about ME.”
OTOH, I think that trying to legislate such a problem away in the cultural environment is doomed to failure and will lead to people who are genuinely miserable. But there has to be some way of getting people to understand that a spouse is going to age and that you’re not entitled to a lifelong thrill-ride.
I think you can reolve the omission by reading her closely. She actually asks “What accounts for the new resistance to no-fault?” The Christian right has been opposing easy divorce for a long, long time; what’s interesting is that it’s starting to get some traction in some places on the left.
I’m actually skeptical that there is a significant resistance to no-fault divorce on the left, particularly among feminists. The article gives 3 examples of the “new” resistance–one is NY’s failure to change its laws, which could be for any reason. One is the failure of states that don’t have full no-fault divorce to change their laws based on the ALI–which again could be for any reason, but I would bet that it’s more likely due to the Christian right’s resistance to than change than due to feminists or gay rights activists resistance. And one is that Louisiana made a move away from no-fault (notably, this is the only state that made it harder to get a no-fault divorce rather than just not making it easier–in fact, it’s the only example that even vaguely supports her conclusion that there’s a “new” resistance rather than just a status-quo resistance in some states). And do we really think that in Louisiana this is a change that was *not* pushed by the Christian right?
The other thing that I would say is that her point based on her own marriage doesn’t seem totally well thought through. I mean, she’s picturing a system of fault divorce where he would be punished financially in court for assaulting her, and I guess that’s fine. But then, cruel and abusive treatment is hardly the only fault ground. Do we also want to bring back financial penalties for adultery, abandonment, alcoholism, insanity, and all of the other historical fault grounds? Do we want to make divorce just that little edge more acrimonious, because it isn’t vicious enough already? Among my clients during my stint in family law, the battered women benefitted the most from no-fault divorce, because they were the least able to negotiate with their spouses successfully, the most emotionally vulnerable to long-drawn court battles.
Finally, I’d note that in some states (MA being an example) there is both fault and no-fault divorce. If you want to go through arguing that your husband is an abuser and get a quicker and (perhaps, but only perhaps) better-for-you-financially divorce, you have that option–but you have other options as well.
What Thistle said.
In addition, although it’s true that the Christian right has long opposed “easy” divorce, what’s new is the absolute predominance of Republicans in government since the 2002 elections.
Also, I think that same-sex marriage has increased the prominence of marriage issues among the Christian right. Although I can’t prove this, it’s my impression that the right’s search for non-gaybashing rationalizations for opposing same-sex marriage has led them to a more intense focus on marriage and divorce issues in general.
There’s a better response to Prof Wilson than “yes, no fault divorce does hurt woman who can prove fault, but those who can’t prove fault are more important than you, so suck it up.”
If she can prove her husband assaulted her in a divorce court, she can sue him for damages in a civil court. The court can make good any financial loss she suffered due to the assault. The problem with the fault agenda (and what they don’t really like owning up to, which is why battered women are their poster-children) is that they want people to be compensated for non-criminal harms like adultery. But that’s a damn sight harder to make a case for than what they make out they’re trying to do.
Robin Wilson is a close friend of mine, and I talked to her about this, and she got edited a bit by the NYT in ways that frustrated her. That’s why I listed links to her scholarly works in a comment at Majikthise. Here is one account of what is happening in NY: http://www.gothamgazette.com/article/civilrights/20061006/3/1992
Note that NOW takes the same position as Robin, though for different reasons.
There is some feeling by feminists who are uneasy about no fault divorce laws that Judge Kaye favors them in part to reduce the heavy domestic relations caseloads in NY courts, which if true is troubling.
There’s a better response to Prof Wilson than “yes, no fault divorce does hurt woman who can prove fault, but those who can’t prove fault are more important than you, so suck it up.”
Professor Wilson’s argument seems to be “Yes, no-fault divorce might hurt many women, but it would have let me punish my abusive ex, so suck it up.” The civil-suit approach (separate from the divorce) is much better.
New York’s domestic laws are, from all the accounts I’ve seen, extremely broken. Giving women no-fault as a lever to get a fair settlement is a kludge. Fix the rest of the system first.
er, should be “fault-based” in that first sentence there. Oy.
Professor Wilson’s argument seems to be “Yes, [fault-based] divorce might hurt many women, but it would have let me punish my abusive ex, so suck it up.” The civil-suit approach (separate from the divorce) is much better.
No, I don’t think that is her argument. No fault divorce laws can be written and applied in a variety of ways. Here in South Carolina, a couple can get a “fault” divorce in about six months, but has to endure a year long “cooling off” period before the paper work for a no fault divorce will even start working its way through the court system, see: http://www.scstatehouse.net/code/t20c003.htm
In practive a no fault divorce takes two years or longer, and it can be “gamed” by the party with greater financial resources in all kinds of ways.
No fault divorce can (again depending on the way the law is written and enforced) be hard on women at both ends of the spectum: Those with more financial resources than the man at issue, and those with less. “No fault” divorce laws can assume an economic equality that rarely exists.
Fault divorce allows a judge to reward an “innocent” party who has been abused and/or betrayed, to be compensated for this during the property division. It isn’t always the female partner. Anecdotally, in South Carolina, women whose husbands did not beat or cheat on them will not get alimony.
I am not an expert in this area of the law. I tend to think the divorce laws will be gamed by the more powerful partner no matter how they are written. But I respect Robin’s work a lot, and she cites to a wide array of empirical research that might be of interest. My bottom line is, I hope you won’t judge her or her work by the Op-Ed alone. The OP-Ed format requires too much oversimplification. For example, when she invokes “gay marriage advocates” she is not being disparaging. She means all the people who legitimately ask, how could gays and lesbians possibly screw up marriage any more than heterosexuals have already done?
Well, I shouldn’t try to speak for her any more than I have already done, especially because I somewhat disagree with her on the merits of this issue, again depending on what the NY law actually looks like and how it works in practice. But she cares about all women, not just herself, of that I am very confident.
Fault divorce allows a judge to reward an “innocent” party who has been abused and/or betrayed, to be compensated for this during the property division.
To be more accurate, it allows a judge to reward an “innocent” party who is able to prove, by a preponderance of the evidence, that the other party is “guilty”. And who isn’t also proven “guilty” by a countersuit.
Oh, yeah. As I write in my own blog, the person who wants out of a marriage and has the “veto power” of simply walking out and leaving gets to have all the power when the other person wants to save the marriage. The problem is power is unevenly distributed once husband and wife enter the courtroom, especially if children are involved. Barring demonstrably appalling behavior on her part (clear evidence of child abuse, drug use, etc, etc) the woman WILL get primary custody of the children. Which means that the man will get to pay lots of child support for children he will see perhaps every other weekend, assuming the woman doesn’t interfere with his visitation out of spite (’cause we all know it’s his fault the divorce she wanted didn’t make her happy) or simply move across the country with him.
This is why marriage sucks. This is why no-fault divorce sucks. This is why men are wise to avoid the entire mess, and so many are now doing so.
Chief, you keep harping on the Women Suck theme, but I’m still not following how no-fault divorce hurts men in your scenario.
See, if the courts are biased towards women, fault-based divorce makes things worse for men. Because not only does the wife walk out, she files a lawsuit accusing him of misbehavior, and he then has to hire a lawyer to defend himself against her claims that he engaged in some category of bad behavior that justifies the divorce. Should he lose, he may end up with an even bigger financial bite because it’s his fault that the property is divided and so on.
You’ve posted over on Hugo’s blog repeatedly about what a terrible person your wife was. When you continually attempt to blame the entire female sex for her sins, I have to wonder if she was the only problem in your marriage.
I have no problem with fault divorce. If a guy (or a woman) is hitting their spouse, or unfaithful, or a substance abuser, let the other spouse go. Let him or her have child suport though I don’t think alimony should be awarded under most any conditions.
Hell, I really don’t have that much of a problem with no-fault divorce, or wouldn’t if we also had “no-fault” financial and custody arrangements…if a man had equal chance at primary physical custody, if the law would actually enforce whatever custody/visitation arrangements the non custodial parent does get, if there were nationwide laws preventing a custodial parent from leaving the community with the children except under unusual circumstance (such as abuse from the non-custodial parent–we have such a law here in Missouri and it works pretty well), and again, if the practice of alimony were ended. The problem is we don’t have any of those things going for us, so I think it’s insane for men to marry in this day and age.
As for hiring a lawyer to “defend himself?” A man is going to have to hire a lawyer anyway. Chances are the divorce decree will dictate he also has to pay for HER lawyer too. Ain’t love grand?
And regarding me and my wife–I’ve really tried not to represent myself as the perfect husband. She was flawed, I was flawed, we married too young and probably weren’t that compatible to begin with. But the situation did teach me some hard lessons about marriage, divorce and the distribution of power in a relationship on the rocks.
Statistical studies don’t indicate that women have a huge advantage in contested custody cases.
From the classic (and often cited by men’s rights advocates) study of custody cases, Dividing The Child:
For another example, here’s what the Massachusetts Supreme Court’s Gender Bias Study reported ( source ).
And then, from page 831 (this quote is the “long version” of the above summary quote):
Chief, can you cite any statistical studies that back up your claim that “barring demonstrably appalling behavior on her part (clear evidence of child abuse, drug use, etc, etc) the woman WILL get primary custody of the children”? Because as far as I can tell, the evidence indicates that you’re mistaken about that.
Why shouldn’t the custodial parent be able to move? It seems to me just as reasonable to say “the noncustodial parent should be willing to move” as it is to say “the custodial parent should have their freedom of movement taken away from her by the government.” I don’t think custodial parents should be able to move merely to break off contact, but there are reasonable reasons people sometimes have to move; economic considerations, to be near family who can provide a support system for a single parent, a better job offer, a better school system, etc..
As far as I can tell, the “custodial parents should be forced by the courts to stay in one place no matter how much this hurts them” argument is based on the idea that no inconvenience to custodial parents is too great, and no inconvenience to non-custodial parents is ever justified.
Life sucks, and divorce in particular sucks. When one parent wants to move and the other doesn’t, the results are clearly going to be unfair. But why should the law care more about unfairness to the non-custodial parent than about unfairness to the custodial parent?
Finally, as I argued in this post , evidence indicates that typical child support payments are not outragiously high.
if a man had equal chance at primary physical custody
Do men provide equal physical care during the marriage? I’m all for fairness in divorce courts, but I don’t understand men whose attitude is “honey, this diaper needs changing” during the marriage suddenly wanting 50/50 parenthood after.
And you don’t really seem to understand what the divorce process entails.
Ampersand:
Contested cases of custody are going to be “close” cases, where the man at least has a chance of winning. You are aware, I’m sure, that men are sometimes told by lawyers that contesting custody is not worth it in many cases. If your chance of winning is slim to none, it may not be worth going bankrupt from lawyer’s fees. There are men who may want custody but realize they simply aren’t going to get it – and they are not going to figure into the numbers on who wins “contested” cases.
So, Vor, you’re saying that the fact that men do pretty well in contested custody cases is proof that men are discriminated against by the courts?
I have to ask, is there any possible set of facts that would convince you that men aren’t discriminated against in child custody cases, as a whole?
(You are aware that there are also some women who are told by their lawyers that contesting custody is not worth it, right?)
I do think some judges do discriminate unfairly against fathers — and other judges discriminate unfairly against mothers. But the evidence really isn’t there to be able to support a claim that courts as a whole are biased against fathers.
Also, as Mythago points out, we have to consider the starting point. I think that a parent who does an equal share of childcare pre-divorce ought to have an equal chance in court. I’m not convinced that it would be fair or nondiscriminatory if a parent who didn’t participate nearly as much in childcare pre-divorce had a 50% chance of winning in court.
I do want equality in childcare – but I think that has to take place in marriages before they wind up in custody court. To only care about equality in childcare in contested child custody cases is to miss 99.9% of cases.
Amp,
Here a statistic that says 90% of fathers have less than equal custody of their children, a statistic born out by the files on my shelves at work.
http://www.childrensjustice.org/stats.htm
The problem may be in what we define as “custody.” A fair amount of fathers may get joint LEGAL custody, which means in theory that he is equally legally responsible for the kid’s actions (i.e., if junior throws a rock through the neighbor’s window he’s on the hook to replace the window as much as mom), he supposedly gets an equal say in what school the kid attends, what religion he’s rasied in, even what kind of haircut he has. But in practice, if the mother has primary PHYSICAL custody–well, Dad’s going to have very little real say in things if he only sees the kids every other weekend.
The “who does the most childcare” is something that two people should work out before getting married, and if a woman doesn’t like his attitude towards housework she shouldn’t marry him. It amazes me how often women marry a man for who she wants him to be instead of who he actually is.
Amp, the reason a custodial parent shouldn’t be able to move a significant distance from a non-custodial parent is that doing so invalidates the custody/visitation agreement that does exist. A man may have a great, generous custody arrangement, on that allows him to see his children often, but it’s not going to mean much if Mom moves the kids three states away and Dad can’t afford a plane ticket that often. Got a good job offer or some new Shining Knight who’s going to make you happy in the way old what’s-his-name never did? Sorry, your fabulous new life doesn’t take precedence over the relationship yor children have with their father. In Missouri, a custodial parent can’t leave the state with the children (or sometimes even the county, depending on how the judge interprets the law) unless the non-custodial parent gives her written permission to do so, or there’s a case of abuse by the NCP, or he moves out of the state or county first. It’s a good law, one that I hope will be adopted nationwide.
The “who does the most childcare” is something that two people should work out before getting married, and if a woman doesn’t like his attitude towards housework she shouldn’t marry him.
Doesn’t that go both ways, Chief? If a man doesn’t like his fiancee thinking that she is going to be in charge of the kids, perhaps he shouldn’t marry her. But that said, you’re skipping past the actual point: which is that if one is A-OK with an unequal distribution of childcare during marriage, it’s a bit odd to suggest that after a divorce, one has suddenly seen the light of 50/50 hands-on parenting time. If Dad didn’t mind leaving pretty much everything to Mom during the marriage, why fuss after?
If we’re concerned about the children’s best interests, laws like Missouri’s should also require the non-custodial parent to prove that his or her moving out of state would not be detrimental to the best interests of the children. After all, does it really matter from the kids’ point of view why they can’t see Dad?
Mythago: “Perhaps he shouldn’t marry her?” EXACTLY. My point to begin with is that men shouldn’t marry in a cultural and legal atmosphere like this one. Especially if he’s not going to get credit for doing most of the work OUTSIDE of the home and providing the financial support necessary for the wife to stay home and do all that childcare.
As for the non-custodial parent not being able to move away either? I’d have no problem with that. I believe that both parents should stay geographically available to the child(ren).
My point to begin with is that men shouldn’t marry in a cultural and legal atmosphere like this one.
Actually, your original point was that women shouldn’t marry. As for “getting credit”, that cuts both ways; if wage-earning is equivalent to childcare, then primary-custody Mom could argue that support payments are the same thing as visitation. I don’t think that’s quite what you meant.
As for the non-custodial parent not being able to move away either? I’d have no problem with that.
Then aren’t you outraged how one-sided the Missouri law is? If Dad doesn’t have primary custody, he can block Mom from moving out of state. But if he suddenly gets a swell job in Los Angeles, why, he can pack up and move, and screw the kids. If he only wants to see them once a year on Father’s Day, that his business and Mom can’t stop him; we only care about ‘detrimental to the non-custodial parent’s relationship’ when the detriment is created by the custodial parent.
The reason for that is obvious, Mythago – we can’t force people to have relationships they don’t want to have. It does lie within our power, however, to require CPs to allow NCPs access to the kids. We can’t make NCPs do a good job, but we can require CPs to give them the option.
we can’t force people to have relationships they don’t want to have
The “relationship” in question is a parent-child relationship, and we certainly force people to have those relationships all the time. We can’t force NCPs to love their kids, but we certainly could state that it’s detrimental for a child to have their parent move out-of-state absent a showing by that parent. (There are all sorts of reasons other than visitation, anyway: emergency care, the jurisdiction of the state over enforcing custody and child support, for example.)
Using Chief’s notion of wage-earning being a credit towards child-care time, we could also make child support partially depending on the exercise of visitation rights. Parents have an obligation to be parents to their children; if Mom chooses to move halfway across the country because kids cramp her style, she can pay Dad more, since he not only has an increased intangible burden, but very likely increased financial and time costs as a result of shouldering more of the parenting burden.
I have no doubt that statistic is more-or-less true (although it would be more meaningful if your cite said anything about how the statistic was calculated, using what data). But that statistic isn’t talking about contested custody cases; it’s talking about all custody arrangements. The overwhelming majority of custody arrangements are made by a mutual agreement between the mother and father, not by court order; that most divorcing fathers don’t want custody is not evidence of courtroom bias.
In a perfect society, I’d like to see a lot more fathers winding up with custody. But the change has to happen in marriages, pre-divorce. The reason so few fathers do primary childcare after divorce is that so few of them did it pre-divorce.
No, it doesn’t. Not unless the existing custody/visitation agreement includes an explicit “no move” clause.
So why can’t Dad move three states away, to be nearer his kids?
So never mind if the new job means that the kids will be able to afford much better colleges or a much better school system. Screw what’s good for the kids – their best interests are always what’s most convenient for Dad. And if Dad isn’t willing to move to be near his kids, then screw them.
I don’t really believe that, because it’s obviously extreme and cruel to write as if Dad’s interests — for instance, his legitimate interest in not moving away from his job and his life — aren’t relevant at all. But my point is to parody the way you’re writing; if you think Mom’s interests matter at all, it’s not apparent in what you’ve written here.
I don’t see why Dad’s interests in not moving to be closer to his kids should automatically outweigh Mom’s interests in moving for a better job, to be near the grandparents, etc.. If we must have a law about moving, then the law should take a look at the whole situation, and have the possibility of either ordering the NCP to move or ordering the CP to stay put. It should be an even-handed law, in other words, not one that automatically takes the NCP’s side.
You seem to think that Dad’s interests are so overwhelmingly more important than Moms that it should be written into law that Mom’s interests must never, ever take precedence, when it comes to move-away decisions. Why? Why is forcing a CP to stay impoverished in a one-horse town where she has no support system and a lousy job less of an imposition than asking the NCP to move to be closer to his kids?
Because women are evil and out to screw men out of their money and their offspring, while men are virtuous victims. Can’t you read, Amp? ;)
The “relationship” in question is a parent-child relationship, and we certainly force people to have those relationships all the time.
No, we don’t. We (rightfully) force people to write checks. That isn’t 2% of the parent-child relationship, and you know it isn’t.
Indeed we do. Parents have legal duties other than check-writing towards their children that they don’t have towards other people. By “have a relationship” you mean we can’t force a parent to love or want their children, and that’s true, but we can certainly impose a duty on them to care for their kids beyond “pay the other parent to do it”.
Parents have legal duties other than check-writing towards their children that they don’t have towards other people.
None that they can’t relatively easily walk away from, AFAIK. The duties to nurture and protect, etc., fall on the custodial parent in the case of a divorce. Nobody calls up the NCP living three states over and berates them that the kids aren’t getting to school; everyone recognizes that a NCP is relatively powerless over such things.
we can certainly impose a duty on them to care for their kids beyond “pay the other parent to do it”.
How?
None that they can’t relatively easily walk away from
If you see your neighbor’s kids every other weekend, notice they are being abused, and do nothing, you have no legal liability. If an NCP on every-other-weekend visits notices that the CP is abusing the children, do you think that the NCP is no more obligated to do something about it than a stranger?
How?
Put limits on their ability to abandon their children. If we recognize that the CP can’t move three states away because it’s bad for the children, we can similarly limit the NCP. (As Chief describes the Missouri law, it doesn’t say “You can move as long as you don’t disrupt the existing visiting schedule”; it presumes that distance = bad.) We can make actual physical custody to some degree mandatory, and failure to exercise visitation or custodial rights met with increased child support.
No, I don’t think that any of this will have a real impact on an NCP who sees children as a kind of fine for past indiscretions, but if we’re going to pass laws that are supposedly in the interests of the children, that goes both way.
If you see your neighbor’s kids every other weekend, notice they are being abused, and do nothing, you have no legal liability. If an NCP on every-other-weekend visits notices that the CP is abusing the children, do you think that the NCP is no more obligated to do something about it than a stranger?
No, he or she would have the same obligation. But that’s not a particular obligation of the NCP; it’s a basic duty of citizenship.
So do you have any actual examples of legal duties owed to a child by an NCP, other than the ordinary duties of citizenship?
Robert,
A neighbor also has a duty of human decency (it isn’t actually a duty of citizenship, as the neighbor has the same duty if they are resident alien, or even an illegal immigrant, hell, even if they are just on a tourist visa), but Mythago was saying that the neighbor (citizen, immigrant, or tourist) does not have a legal obligation, while the NCP does. Of course, so does anyone else with a specific legal obligation of responsibility to the child, including, possibly, the neighbor if the neighbor regularly babysat the child (I think, depending on the state). Also, of course, an NCP who never bothers to show up for visitation has no legal liability for not having noticed the abuse, so the legal responsibility seems to go with the interaction, not with the relationship.
FTR, DV, MSW and NOTA I figured out. SA has me stumped.
I’m not sure why you wouldn’t want to be a reporter. I’ve probably just missed something somewhere.
Also, of course, an NCP who never bothers to show up for visitation has no legal liability for not having noticed the abuse
Although, depending on the circumstances, you might be able to make a case that the NCP should have been aware of neglect or abuse even though s/he didn’t personally witness it.
“For although God in the first ordaining of marriage taught us to what end he did it, in words expressly implying the apt and cheerful conversation of man with woman, to comfort and refresh him against the evil of solitary life, not mentioning the purpose of generation till afterwards, as being but a secondary end in dignity, though not in necessity; yet now, if any two be but once handed in the church, and have tasted in any sort the nuptial bed, let them find themselves never so mistaken in their dispositions through any error, concealment, or misadventure, that through their different tempers, thoughts and constitutions, they can neither be to one another a remedy against loneliness nor live in any union or contentment all their days; yet they shall, so they be but found suitably weaponed to the least possibility of sensual enjoyment, be made, spite of antipathy, to fadge together and combine as they may to their unspeakable wearisomeness and despair of all sociable delight in the ordinance which God established to that very end.”
I hope that those who complained about the “culture of divorce” (the present time always being the mother of all evils, as opposed to the “good old days”) have had the patience to read the above quote. But for the convolutions of archaic English, it is very beautiful and very persuasive. Translated into our own, plain lingo, it makes three points: (1) the primary purpose of marriage is to make the partners happy; (2) procreation is merely a secondary purpose of marriage; and (3) staying together in an unhappy union for its own sake defeats the purpose of marriage.
Who wrote this? A nun? An early feminist, perhaps? Alas, no. The author of this text is John Milton — a celebrated 17th century English poet, the author of “Paradise Lost”, and, probably, the first advocate of no-fault divorce. Milton was not a libertine or a radical, like later French poets. He was a religious, bookish man, and a devout Protestant — by choice rather than by accident of birth or upbringing. But he was also an unhappy man, married to an unhappy woman.
At 33, Milton married a 16-year-old girl. Several weeks later, she went to visit her mother and remained there indefinitely, without ever indicating, however, that she would not return. Now, Mrs. Milton did not abuse her husband — did not beat him, or threaten him. She didn’t steal from the family. She did not take lovers. She was not a criminal, did not have a mental illness, and was not an alcoholic. I suppose that her conduct could qualify as abandonment under New York’s present-day fault scheme, but it would not be a slam-dunk. She just found her serious, scholarly, brooding husband boring as hell and preferred to spend most of her time with others. He felt similarly about his vacuous, ignorant, and infantile wife. Milton never denied that the mistake was of his own making, but if ever there was an idea that Milton would find abhorrent, it’s one that an unhappy marriage should serve as a drawn-out lesson or punishment to those who make improvident decisions — and that this punishment should be perpetuated through the coercive power of the State.
So to all those who think that only violence and infidelity should serve as adequate bases for an escape from a marriage, reflect on why we get married in the first place. And, consider that perhaps the generations before us weren’t as pristinely “simple” and unpretentious as you believe.
My husband is having an affair and wants to leave me…no significant warning, no “let’s work on this”…and he’s NOT leaving for someone better….
Those who know think he is NUTS for leaving me.
I have NOT let myself go, in ANY way…I am better than I have EVER been…physically, mentally, emotionally, relationally, spiritually….I am a complete package.
My husband is addicted to the “high” he feels from the affair…he doesn’t realize or understand that he doesn’t really love this woman…it could have been ANYone…it’s just the FEELING he’s addicted to.
How can it be that, even in the throes of this addiction, he is apparently permitted to file for a “no fault” divorce? And it could be granted? I find this outrageous. Our therapist, as have many experts, characterizes this as a true “temporary insanity”.
My husband’s heart did not harden against me UNTIL he was in the throes of the affair…there is not room for 2 women in a man’s heart. If he had not met up with her, we could have gone to counseling and most likely successfully healed our communication gaps…he cannot–WILL not–acknowledge that now. We had some work to do, but it was DEFINITELY NOT “IRRECONCILABLE”…deep, abiding love can absolutely, successfully be resurrected. He perceives us as “irreconcilable” ONLY because of “the other woman”.
My life, as I know it, is about to be ruined, because of what I consider to be a judicial lack of respect for the institution of marriage. I have known and loved this man for HALF of my life…and he, me…he is my best FRIEND, my love. We have shared so much history…it’s hard to conjure memories that don’t include him.
And in a mere 6 months, he can eradicate me from his life, as if I never existed.
I do not appreciate or respect what he has done, in terms of the affair, and I am NOT a doormat. I am a woman of great strength and honor, and I still believe that we could overcome his infidelity. My husband is NOT a philanderer…he was always a steadfastly faithful man…until this crisis. But I do believe we could overcome this together, given time.
Unfortunately, with this brief 6-month timeframe–and zero recourse or rebuttal from ME–my options are limited, and my time is running out. Devastating to learn, because I am willing to fight for this marriage…I have been and I am willing to continue…but the key is to outlast the affair. (Statistically, affairs do NOT survive, but I can’t guess whether theirs will crumble before a divorce is decreed. The addiction is strong, despite the many dysfunctional strikes stacked against them.)
I believe that I should at least be allowed the OPPORTUNITY to provide additional evidence, pointing to the extenuating circumstance of our situation. Sadly, this is not the case. I have no case, in the eyes of “the law”.
I DO understand the situations for which the swift divorce is humane and necessary, but WHY can the courts not allow for DISCERNMENT??? What is with this “one size fits all” version of “pseudo-justice”?
It appears that Justice needs to be blind, so she can’t see all the pain and suffering she leaves lying in her wake. My life will never be the same.
Kirby, I’m very sorry that your husband has betrayed you like that, and I really am sorry for the pain you are experiencing. However, I don’t think it’s right to keep people in relationships against their will, and the government certainly should not have the power to force someone to stay married when they want out.
Snowe,
Thanks for your condolences.
To be clear, I’m not asking that he be “forced” to remain in the marriage. (I am not hanging on to this man out of desperation…if this divorce becomes a reality, I will ultimately fare FAR better than he will, realistically speaking. I’m concerned for him. His affair will not survive, for very specific, sound reasons, and he does not have a strong emotional support system to fall back on at this time, if I am out of the picture.)
I am asking for, in SOME circumstances, the option of additional time and the opportunity to have a VOICE.
And here’s why:
What the general public is widely unaware of is that 90+% (NINETY PLUS PERCENT!!!!–most of us assume that once an affair has occurred, game over; not true) of spouses who cheat DO return to the marriage…but an affair situation requires TIME to runs its course, and 6 months is often NOT enough time (affairs can be tenaciously addictive…the infatuation produces chemicals in the brain that are, literally, addictive, and people are hard-pressed to give it up…it often has to subside on its own, as infatuation does).
When a person is in an affair, they lose their sense of logic, and they WILL throw away EVERYTHING on a whim (for instance, his lover has two daughters, whom she is neglecting, because she is focused on him instead)…destroying their own life in the process, just like a drug addict…because of the addictive nature of the “feeling”… which, like infatuation, fades, just as soon as the pressures of real life intrude.
Affairs thrive on fantasy, secrecy, and the thrill of deceit. The affair relationship is virtually doomed (only 1% can withstand real-life pressures, and even among those, the divorce rate is exponentially higher than among REGULAR SECOND MARRIAGES, which already experiences divorce at a higher rate than first marriages), but by the time it unravels, the “easy divorce” has often decimated the marriage.
The spouse that is “waiting” must, like those intervening on behalf of a drug addict, stand as the “voice of reason”. It is NOT a matter of “keep[ing] people in relationships against their will”…it’s a matter of helping them through a time when they literally are not thinking straight. It is upholding the “for worse” of “for better or worse”. I’m not bailing out on him just because he’s in crisis.
My husband has gone from being a sunny, logical, responsible, balanced, and a “neatnik” to his polar opposite. He is like an angry, rebellious teen, acting out, cursing, and has turned into a slob. He has gone from enjoying exercise to being completely obsessed…the lion’s share of his week is dedicated to that and the affair.
Despite the challenge, I have been calm, patient, loving, and working closely in tandem with our therapist to act constructively as the situation has unfolded.
When we engage in discussions, the thought process of this logical man is now meandering, circular “logic”. He waffles. He flip-flops. He does not KNOW what he wants, despite professing so. (He is only 39, so it’s definitely not senility :-)
When the affair unravels, he may find himself sitting alone, in a studio apartment, wondering what the hell he did to his life. (He didn’t say that he was dissatisfied UNTIL after he was neck-deep in the affair…this is quite typical…small issues are amplified once a person experiencing an identity crisis “connects” with another person experiencing the same thing, when they both have “boundary issues”).
Ours was, of course, an imperfect life, but it was a GOOD life, and the issues could easily have been worked through in counseling…we are STILL very attracted to each other in many ways, and we are very compatible. There is passion. We just need to air and renegotiate a few issues. That’s it. Not worth divorce.
But with such an easy “out” available, the son of twice-divorced parents is ready to fulfill his family destiny. That’s all he knows. People who walk out when things get confusing.
Our country has become numb to the concept of divorce…we see it on TV shows and in movies every day. People bed-hop and swap spouses like it’s nothing. Ratings demand it. Real commitment seems so BORING. But it’s NOT. It’s deep. It’s intimate. It’s REAL. It’s sexy. It’s fun. It’s exciting beyond the butterflies-in-the-tummy feeling that an affair gives you…yes, the beginning is so exciting, but it’s not substantive…if you know how to “go deep”, there is SO much more to be had…but most people only scratch the surface, and turn tail and run when the honeymoon phase wears thin. Most people fail to reach their “second wind”. We are a throwaway culture, and we don’t give a second thought to throwing away people or history, either.
Marriage is a commitment. Not just until you get bored. And love is an action…it’s more than a willy-nilly, nebulous “feeling”…the feeling waxes and wanes and comes back stronger…it fluxes over the years and changes…just as all feelings do. But ACT on love regularly, and you will feel it more consistently.
SO, yes, we are all so concerned about “free will” and “happiness” and “feelings”, but what happens when an individual “thinks” they know their own mind, yet they have actually checked OUT? I am not just looking at my OWN happiness and best interests here…I am looking at those same things for my spouse. He is not currently equipped to do so. At any point in the past, I would have trusted him with my life and any life decision. Right now, he truly is NOT thinking clearly…and I assure you, I do NOT say this simply because his position is in oppostion to mine.
I don’t see this as a “prison” for this type of person (even if THEY might at the time…a drug addict views rehab as prison, certainly, but it IS typically done in their best interest, not intended as a mechanism of control); rather, as the opportunity for a “reality check”.
As I stated, what *I* am asking for is the OPPORTUNITY to present EVIDENCE of our extenuating circumstance…the OPPORTUNITY TO BE HEARD…the OPPORTUNITY should EXIST for a judge to say, yes, in THIS case–in SOME cases–the waiting period SHOULD be extended OR the petition denied at this time (even if it could be resubmitted for later consideration). THAT is what *I* am asking for. It is MY position that “one size fits all”…simply does not.
There are some couples in which BOTH parties want out quickly…they can’t wait to be done…”no fault” is ideal. More power to them, I suppose.
I’m simply asking for recourse. For a VOICE.
19 years deserves that.
Half my life deserves that.
My best friend deserves that.