Story by Chris Graham

You sign a contract with a cell-phone service provider, and their service area doesn’t extend into your cul-de-sac.

“Try getting out of that contract, though,” Dean Welty says, pointing out the obvious - namely, that you’re basically stuck in the contract for the duration.

Welty doesn’t bring this point up to make an issue of the kinds of contracts that cell-phone companies get us to agree to.

“Right now, you can break a marriage contract more easily than you can break your cell-phone service contract,” says Welty, the director of the Harrisonburg-based Valley Family Forum, which has been working with The Family Foundation of Virginia and other social-conservative groups on an effort to make it harder for Virginians to end their marriages in divorce.

Manassas Republican Del. Bob Marshall, the author of Virginia’s constitutional amendment banning gay marriage that was passed by Old Dominion voters last November, has been leading the charge in Richmond.

“You can just walk away from someone right now. There is less security in the covenant of marriage than if you and I agree to open up a hamburger joint,” says Marshall, who introduced legislation in the Virginia General Assembly this year that called for a legislative study of no-fault divorce - defined as divorce in which the dissolution of the marriage does not require either party to show fault and that which can be granted over the objections of either party.

The resolution from Marshall failed to win the support of the required two-thirds majority of House members - but the debate over Virginia’s no-fault divorce law promises to linger on for some time into the future.

At the heart of the issue is the notion that no-fault divorce has led to the explosion of dissolved marriages that sees half of all family unions ending in divorce. To social conservatives like Welty, a retired United States Foreign Service officer, the jury has long since come back with its verdict on that one.

“People who say it’s not a problem must be living on another planet - it’s such a huge problem. And it’s not just divorce that is the issue here,” Welty says.

“I’m looking back 40 years - and so many terrible things have happened in the last 40 years, with respect to the sanctity of life, the sanctity of marriage, the standards of decency, our freedom of religious expression, those kinds of things. Philosophically, I can see how you can explain this as the moral decline of America. All of these issues are linked - the 45 million unborn children whose lives were aborted, the 50 percent divorce rate, the 37 percent out-of-wedlock birth rate. And how all of these impact our children.

“What has happened in our culture? Just look at the stats - from a below-10-percent divorce rate in 1960 to a 50 percent divorce rate now, from abortions being illegal in the ’60s to the point now where you can abort 4,000 babies a day and nobody bats an eye,” Welty says.

“No-fault divorce really brought this issue into play - once you establish the philosophical quicksand. That’s one enemy. The second enemy is cohabitation. Why get married when we can live together and have sex together? Marriage is just an encumbrance in that way of thinking. A third one is because we have so savaged the venerable institution of marriage, we have so weakened it, it has become subject to attacks and redefinition - that’s the battle that we fought last fall (on gay marriage).

“The children being raised in single-parent homes, the products of broken homes, they suffer emotional turbulence, which causes lower academic achievement, sexual promiscuity, which leads to STDs, drug abuse and crime. All of these are the consequences of that company upstream that’s been polluting the river, so to speak - broken homes and broken marriages,” Welty says.

But is the case that the advent of no-fault divorce laws was what caused the increase in divorce rates a generation ago the slam-dunk that Welty suggests that it is? Justin Wolfers, a professor of business and public policy at the University of Pennsylvania, says his research into marriage and divorce points in another direction entirely.

“As a lot of people know, the 1960s and ’70s were a tumultuous time, and divorce rates rose dramatically. And this was also the time when these no-fault divorce laws were introduced - and so a lot of people think that therefore that is strong evidence that the two are connected. But it turns out that the rise in divorce was just as strong in states that didn’t adopt unilateral-divorce laws. And so you can infer from that that it wasn’t the change in divorce laws that caused the rise in divorce, but potentially other factors,” Wolfers says.

University of Virginia social-science researcher and sociology professor Steven Nock has come to a more nuanced perspective on the issue of causation.

“I do believe most people in policymaking circles think that the introduction of no-fault divorce has led to a lot more divorce. I wish that I could say that we know the answer to that question - whether or not it happened - but we really don’t. And it’s never going to probably be possible to answer that question confidently - because every state in the Union that introduced no-fault divorce did it at about the same time, so we didn’t have any room to compare states that did this to see whether the divorce rate went up faster in one than in the other,” says Nock, the director of UVa.’s Marriage Matters project.

“It’s still an open question. My sense is that most people accept that no-fault divorce probably did lead to a little more divorce - but the run-up in divorce had started long before Ronald Reagan signed the first no-fault divorce law in California,” Nock says.

That all having been said, the uncertainty in the data is reason enough for the state to consider commissioning a study, in Nock’s mind.

“One thing that we need to understand what young people who have not yet married understand and think about marriage - because it’s simply not the case that living together with somebody is the same thing as being married to them. That’s part of what we need to do - is learn about what people understand and expect from marriage, and where those ideas came from,” Nock says.

“We also need to look at why people in Virginia are divorcing - and what their expressed reasons are. We don’t really know what the leading causes of divorce in Virginia are. We have a lot of good reasons to think that they’re similar to other states - but we need to examine that more. We need to look at services and programs that divorced individuals and their children rely on from the state - because this is ultimately the role of the state, which is to provide those services, whether it’s health care for the children through Medicaid, or whether it’s welfare for the moms with TANF, or whether it’s some kind of housing.

“We really need to pay some attention to what the state is providing, and what it would need to provide to couples who are getting divorced or having children without being married.

“Research and study is really called for before policy - and so in that sense, things are probably moving in the right direction on this,” Nock says.

Washington and Lee University law professor Robin Fretwell Wilson concurs with Nock’s assessment of things there.

“This seems to be a no-brainer. It’s never a bad idea to try to study what the impact of no-fault divorce and the availability of that on marriage rates is,” Wilson says.

“This is exactly the right way to start - because you basically have a brain trust in the state with people like Steven Nock, who probably knows more about marriage than anyone else in the country, people like (UVa. sociology professor) Brad Wilcox, I’ve been writing in this area. This type of commission is never a bad idea - and in Virginia, you’ve basically got some of the best experts in the country sitting right here. A commission like this could talk about the kinds of changes that would have the most impact - taking into account the particular concerns that the Commonwealth has,” Wilson says.

***

So if even the social scientists agree that a study would provide a much-needed baseline for future analysis of divorce laws in Virginia, what happened in the General Assembly this year?

Victoria Cobb, the president of The Family Foundation, attributes the defeat of Marshall’s study bill to “the fact that it got caught up in different political controversies - it was defeated less on its own merits than it was on the circumstances of this year’s General Assembly session.”

Maybe, maybe not. Of note here is that a Survey USA poll commissioned by a Roanoke-based TV station, WDBJ-7, in January had 58 percent of those surveyed expressing their support for the continuation of no-fault divorce in the Commonwealth; and only 32 percent of those polled said they thought that the elimination of no-fault divorce laws would help more marriages succeed.

“No-fault divorce as an alternative has become pretty firmly entrenched,” says Peter Swisher, a family-law professor at the University of Richmond’s T.C. Williams School of Law.

“There are some problems with it - divorce is, quote, ‘easier to get’ now, and there are economic studies that show that women in divorce don’t get equitable treatment like men with both division of property and spousal support,” Swisher says.

“But the fact remains - people did get divorced in the past, even with fault grounds. When no-fault was inaugurated, the divorce rate did shoot up. Now it’s running between 40 and 50 percent. But most of the folks who get divorced get remarried,” Swisher says.
“I’m among those who don’t think that making marriage or divorce easier or tougher is really going to have an incredible affect on people’s conduct. If you have an unhappy marriage, I think people are going to divorce,” Swisher says.

“I think it should be harder to get married, to tell you the truth. I think premarital counseling would be appropriate education in our high schools,” Swisher says.

In Dean Welty’s perfect world, mandatory premarital counseling would be among the legislative solutions that would come after a taxpayer-funded study of no-fault divorce. Another area where Welty would like to see more attention placed is on “hitting them where it hurts” - namely, in the pocketbook.

“One thing that I would hope that the study would do would be to propose tax policies that would encourage marriage, strengthen marriage - and to encourage people to stay in marriage, and to penalize them if they try to run from their marriage. You pay a huge penalty if you try to cash in your CD early. Well, people ought to pay a huge penalty if they try to break their marriage contract - and it ought to be double or triple if there are children involved,” Welty says.

“What vow did you take when you got married? It wasn’t ‘until love ends do us part.’ It was ‘until death do us part.’ You made a vow. Well, that vow ought to have some kind of legal standing. And if you’re not going to keep it, you ought to pay through the nose.

“It’s not like you can shackle someone to his marriage bed - but still, there ought to be a heavy penalty to pay for breaking that kind of a sacred contract. That’s what I’m getting at. Not this I’m-out-the-door-and-I’ll-see-you-in-six-months kind of thing,” Welty says.

In Linda Czyzyk’s perfect world, people like Welty wouldn’t be able to use the legislative process to codify their ideas as to what moral strictures should be in place.

“It’s clear that the family structure in America is changing - and the government needs to adjust to that and figure out ways to help all families, rather than trying to force everybody to live according to a certain definition that one particular religious group finds acceptable,” says Czyzyk, a Staunton-based attorney and member of the Staunton chapter of the National Organization for Women who is also a member of the board of directors of Equality Virginia, a Richmond-based gay, lesbian and transgender civil-rights group.
“They think back to the ’40s and ’50s and ‘Father Knows Best’ and those kinds of families as being the epitome - Oh, wouldn’t it be great to go back to those days. But if you look at what the reality was back then, women didn’t have any means of supporting themselves - they were kind of stuck in the relationship, even if the husband was abusive, or he cheated or whatever,” Czyzyk says.

“By requiring fault to get divorces back then, there was a much higher incidence of spousal abuse and also spousal murder. A lot of times women would be killed in relationships because the man wanted out or vice versa. If you box people in, you make them more desperate to get what they want - so back then, forcing people to stay in bad marriages caused more violence and more death,” Czyzyk says.

The social-science data seems to back Czyzyk up on that point.

“The passage of no-fault divorce laws led domestic violence against women to go down quite dramatically in those states that adopted the laws,” the University of Pennsylvania’s Justin Wolfers says.

“There are two interpretations of this fact. One interpretation would be that everyone who is in an abusive relationship got out of it because they now no longer needed their husband’s permission to get out of it. And what Virginia sounds like it is talking about moving back to - back to a so-called fault- or consent-based system, where you both need to sign off on the divorce - if that’s the case, then I can be abusing you, and not grant you the divorce. When you are allowed to divorce, a lot of these abused wives just get divorced, and that can explain the data.
“But that’s not actually what is going on in the data - because as it turns out, the decline in domestic violence is much, much larger than the rise in divorce. So it’s not just that women are getting out of bad relationships. It’s actually that some of these bad, abusive relationships are no longer abusive,” Wolfers says.

Good points, all - but what about the factor involving the impact of divorce on a family’s economic well-being? How much of a role does that play in this debate?

“We have enough experience with no-fault divorce to identify some of its potential weaknesses. For example, what many people probably don’t recognize is how costly these issues are for everybody else - in taxes and in terms of what we spend on education and health care and so on,” UVa.’s Steven Nock says.

“The leading cause of poverty in the United States is single parenthood - either through divorce or through having children out of wedlock. Most people in America who are poor either are mothers or their children. So states are looking at that - and thinking, Would there be less poverty, for example, if more people were married when they had kids, or if fewer people were divorced?” Nock says.

“That’s the great debate - and we don’t know. But a lot of people believe that the answer is yes,” Nock says.

“When there is a divorce, usually the member of that marriage whose standard of living is going to drop and drop precipitously is going to be the women of those marriages - especially if they’re going to be the custodial parent,” Washington and Lee University’s Robin Fretwell Wilson says.

“The numbers have varied between 30 and 40 percent in terms of the drop in standard of living for women who are involved in divorces. Many folks will go from being in the middle class to being under 200 percent of the poverty line overnight,” Wilson says.

“But that’s not to say that making it harder for people to get divorced is the answer,” Staunton activist Linda Czyzyk says.

“If government wants to get involved here, it can do that by helping prevent the things that lead to divorce - and money and children are two of the biggest stresses on a marriage. By helping provide better day care for poor people, by providing counseling, there are a lot of things that government can do if the goal is to help people stay together or help people raise their families. Legislating morality in a punitive way is the wrong way to go.
“Instead of providing better facilities for women that are in bad situations, instead of providing family services for people who are in bad situations, counseling, mediation, those kinds of things, what they’re saying is, We want you to stay in a bad situation, and we’re not going to do anything to help you, except to provide punitive laws. There’s no money that I can see going into helping these families,” Czyzyk says.

***

“As somebody who’s practiced family law, the way the laws are now, if you live separate and apart for a year, you can get a no-fault divorce - and there are other ways you can do it. But by requiring fault in order to get a divorce, what you end up with is people essentially charging the other person with all kinds of abuse, whatever, things that may not be true, but people start making up allegations just to get out of the situation they’re in,” Czyzyk says.

“It ends up if you’re the one who’s being charged with cruelty, or if you agree to that just to get through with the divorce, this then is a matter of public record, and it becomes that so-and-so got a divorce because he beat his wife, or he was mentally cruel to her, or she was a spendthrift and spent all the family money. You end up putting people in the position of having to lie and make up things to get a divorce,” Czyzyk says.

That is one reality of a no-fault-less world - that there will still be people who will still want to seek an end to their marriages, just as was the case before no-fault was an option.

More reality: “In making it harder to divorce, vulnerable people - such as disadvantaged women or victims of domestic violence - could end up staying in unsatisfactory and damaging family situations,” says Joyce Arditti, a professor of human development at Virginia Tech.

“These situations are clearly damaging for children, as is exposure to high levels of marital conflict. Additionally, tougher divorce could inadvertently contribute to higher rates of desertion or nonlegal unions,” Arditti says.

“Research suggests the private family decisions are often unaffected by government efforts to control behavior - or, at the very least, the effects of the legislation tend to be more complex than anticipated,” Arditti says.

Still more reality: “It is true that people are getting married later, it is true that they’re getting divorced at high rates - but in the end, by age 45, nine in 10 Americans have married,” the University of Virginia’s Steven Nock says.

“Now, they may not be married at that point - but it’s still a very popular choice for people to make. Our marriage rate is the highest in the industrialized world,” Nock says.

But we also have the highest divorce rate in the industrialized world, as Dean Welty of the Valley Family Forum hastens to point out.

“Something is wrong here,” Welty says.

“If it were up to me, you should not be allowed to divorce. Irreconcilable divorces is a crock. Fix it, buddy. You have no grounds for abandoning your wife,” Welty says.

“Marriage was designed, frankly, to protect the woman. She’s the one who’s vulnerable here. She bears our children. She is weaker, physically. And it is up to you and me to provide an umbrella of protection for them,” Welty says.

“That’s where this study should go. We all acknowledge that we have a problem. But what do we do now from a public-policy standpoint to address the problem?”

Filed under: 7-April 2007 Issue