William A. Galston Professor, School of Public Affairs and Director, Institute for Philosophy and Public Policy University of Maryland at College Park
Center of the American Experiment Tim Penny and Vin Weber Distinguished Fellows Series
Radisson Plaza Hotel Minneapolis, Minnesota October 26, 1995
I believe I first learned of Bill Galston in 1990, shortly after he had written or co-written two exceptionally insightful and brave pieces on American families. One report, coauthored by Elaine Kamarck, was for the Washington, DC-based Progressive Policy Institute, of which the two were founders. The second piece, an essay titled "A Liberal-Democratic Case for the Two-Parent Family," appeared in the first issue of Amitai Etzioni's communitarian journal, The Responsive Community.
In each instance, it's more than fair to say, Dr. Galston contributed as much as anyone at the time in making it politically possible for Democrats and others in the middle and on the left to say aloud what they either deeply believed to be the case or privately suspected to be so: That kids, generally speaking, do a whole lot better when they grow up with both their parents under the same roof.
I didn't get to meet Professor Galston until 1993 when, at a lengthy conference, I was struck again, this time by his remarkable ability to get to the heart of complicated matters. He is a very impressive scholar -- the kind who leaves a senior White House job in order to spend more time with his own family (as he did last year).
With this as prologue, we asked Dr. Galston to "rethink divorce" at a Tim Penny-Vin Weber Distinguished Fellows symposium last October. The short paper that follows Tim's own brief Introduction is a modestly embellished version of his important analysis and recommendations that morning.
Bill Galston, a political philosopher, is a professor in the School of Public Affairs at the University of Maryland at College Park. He is also director of the Institute for Philosophy and Public Policy there. He was issues director in Walter Mondale's 1984 presidential bid, and he served as deputy assistant for domestic policy to President Clinton from 1993 to 1995.
As it was a pleasure to host him last fall -- both for his symposium presentation as well as for a small roundtable afterwards with legislators, judges and divorce lawyers -- it is an honor to publish him this spring. My great thanks to him and, of course, to Tim.
American Experiment members receive free copies of almost all Center publications, including "Rethinking Divorce." Additional copies of this essay are $4 for members and $5 for nonmembers. Bulk discounts are available for schools, civic groups and other organizations. Please note our phone and address on the previous page for membership and other information.
Thanks very much, and as always, I welcome your comments.
Mitchell B. Pearlstein
As a freshman Minnesota state senator in the mid-1970s, I cast a vote for "no-fault" divorce. Within my family and circle of acquaintances, I had witnessed the end of several marriages. In each instance, divorce appeared to be the only reasonable alternative to an unhappy union. I reasoned that a simplified divorce process was preferable to a bitter court battle. It seemed best, after a bad marriage experience, to let the healing begin rather than to reopen old wounds. I remember thinking at the time how children could be harmed by lengthy and contentious divorce proceedings.
That was then; this is now. I did not expect divorce rates would rise so dramatically. I did not foresee the approximately one million American children now affected annually by divorce, twice the number of 30 years ago. I did not realize that, on average, children of divorce would experience a 30-percent drop in household income, or that child support payments would be both meager and hard to collect. I now know these things. Consequently, I have concluded that we must replace the legal standard of "no-fault" with the higher standard of "hold harmless." "No-fault" divorce has too often harmed children. This must change.
The interests of children must come first in divorce proceedings. Sadly, under Minnesota's no-fault statute, as with such laws in other states, children are hardly mentioned and a child's financial security is treated as a secondary matter. In an October 1994 study, the Minnesota State Bar Association admitted that, "many of the statutory factors [in divorce] involve evaluations of parents rather than a determination of the best interests of the children." The report also acknowledged, "[t]he divorce system functions as though the children were the chattel of the parents -- something to be apportioned with the marital property." Clearly, we must do better by children.
In "Rethinking Divorce," William Galston offers a thoughtful review of the consequences of divorce for America's children. His prescriptions for reform of our nation's divorce laws are solidly based and articulately argued. Dr. Galston suggests mediation to avoid divorce when possible. He calls for a two-tier process that restricts access to no-fault proceedings to only those couples without children. He recommends putting children first when negotiating the terms of a divorce. By following his advice, we could meet the "hold harmless" standard and better assure our children that divorce is not their fault.
Distinguished Senior Fellow
Mr. Penny, a Democrat, represented Minnesota's First District in the U.S. House of Representatives for six terms, having first been elected in 1982.
My perspective on the subject of divorce law reform is summed up in the title of an essay I coauthored a few years ago -- "Putting Children First." I want to address one simple, but surprisingly unfashionable question: How would we alter the law and practice of divorce in the United States if we were truly guided by the best interests of children?
Two preliminary remarks:
First, I believe that government has a legitimate interest in protecting vulnerable citizens. Children are the quintessential vulnerable citizens. They need and deserve our help. The question is whether they have been getting it from our legal system during the past generation and, if not, what can we do about it?
Second, women have a strong and appropriate interest in this issue. The last thing I want to do is restore a patriarchal order, or trap women in exploitative and abusive relationships. If that were the inevitable consequence of changing divorce laws, I would not be interested in rethinking them. But I do not believe that this is the case.
We have good reason to be worried about the current state of marriage and divorce in this country. In 1960, the rate of divorce was no higher than it had been in 1940, and not much higher than in 1920. (There was a spike right after World War II, but it quickly subsided.) Then, between 1960 and 1980, the rate of divorce surged by nearly 250 percent. Since then, it has stabilized, but at a rate that is the highest by far in the industrialized world.
About half of all marriages undertaken today will end in divorce. Forty percent of all first marriages will suffer that fate, compared to only 16 percent in 1960. Upwards of 60 percent of all remarriages will not endure.
The number of children directly touched by divorce each year has more than doubled, from 485,000 thirty years ago to one million today. The percentage of children living in mother-only households has also more than doubled. About 40 percent of children living in such households have not seen their fathers during the past year; only one in six sees them more than once a week.
Everybody knows that children typically encounter difficulties in the wake of divorce. The conventional wisdom is that these negative effects are attributable to two factors distinguishable from divorce itself: steep income losses after divorce, and intra-family conflicts before divorce.
This conventional wisdom is not entirely wrong: These are indeed important factors. But it's not entirely right either; it's not the whole truth. Since 1990, four leading researchers -- Frank Furstenberg, Andrew Cherlin, Sara McLanahan, and Gary Sandefur -- have assembled large quantities of original data and subjected them to rigorous analysis. Here is the consensus of their findings:
There is a critical distinction between divorces involving physical abuse or extreme emotional cruelty and those that do not. Minor children in the former category are on balance better off than if their parents had remained married. But the opposite is the case for the children in the latter category, where divorce follows lower-intensity conflict. Correcting for the effects of both income loss and pre-divorce conflict between parents, divorce in these cases has an independent, negative effect on the well-being of minor children along a number of key dimensions: school performance; high school completion; college attendance and graduation; labor force attachment and work patterns; depression and other psychological illnesses; crime; suicide; out-of-wedlock births; and the propensity to become divorced. There is also evidence that the experience of divorce diminishes trust (in other individuals as well as institutions) and impedes the capacity of children, once grown, to form stable, lasting relationships.
Law, economics, and culture
This period of rapid change in the statistics of divorce has also been a period of rapid change in the law of divorce. As recently as 30 years ago, every state had a fault-based system. The standard grounds for divorce included adultery, physical abuse, mental cruelty, desertion, imprisonment, alcoholism or drug addiction, and insanity. The first no-fault divorce statute was signed into law by then-Gov. Ronald Reagan of California in late 1969. By 1974 -- only five years later -- 45 states had adopted some form of no-fault. By 1985, the last bastions had crumbled; every state had either replaced its old fault system or had added important no-fault options.
These legal changes coincided with a period of pervasive economic change. Women surged into the paid workforce in unprecedented numbers.
It was also a period of profound cultural change. Daniel Yankelovich has recently charted some of the key shifts. Compared to 30 years ago, he finds, Americans today place less value on obligation to others, on sacrifice, and on self-restraint. By contrast, we place more value on individualism, on self-expression and self-realization, and on personal choice.
These shifts are correlated with important changes in attitudes toward children, families, and marriage. We are far more accepting of divorce than we were 30 years ago. We are far more likely to say that marriage is first and foremost a means to personal happiness. And we are far less inclined to believe that parents in a less than fully satisfactory marriage ought to make an effort to stay together for the sake of their children. Up to the mid-1960s, roughly half of Americans thought that parents had an obligation to make this effort. By 1994, that figure had declined to about one fifth.
It is tempting to conclude that the movement toward no-fault divorce is just the product of these economic and cultural changes and that it has had no independent effect on divorce rates. Tempting -- but probably wrong. While full scholarly returns are not yet in, evidence is accumulating that once instituted, no-fault laws further accelerated the pace of divorce. An article recently published in the Journal of Marriage and the Family reported on a 50-state statistical survey and concluded that, "the switch from fault divorce law to no-fault divorce law led to a measurable increase in the divorce rate." So we must at least be open to the proposition that no-fault divorce laws gave added impetus to the economic and cultural trends already well under way in the 1970s.
There are some theoretical reasons to give weight to such findings. Scholars talk about the "investment effect" -- the diminished propensity to invest time or resources in relationships that don't hold out the promise of security. I am reminded of a New Yorker cartoon I saw awhile ago. A young man is kneeling before a clearly skeptical and reluctant young woman, and he says to her, "Look, it's only marriage I'm proposing, not a lifetime commitment."
There is also what theorists call the "demonstration effect": Once a practice becomes pervasive in a community, individuals at the margin -- those who might go one way or another -- may be pushed in a particular direction by the behavior of those around them. And finally, there is the "destigmatization effect." There is no question that no-fault divorce laws symbolized the spreading belief that divorce presented no particular moral problem; that there was, in the moral as well as legal sense, no fault.
From social analysis to public policy
What should we do about all this? Here is where social science gives way to some unfashionable policy prescriptions that few of the mainstream scholars I've cited would endorse. Before reaching the specifics, let me offer a general perspective.
It's most realistic, I believe, to see families as systems of individuals with interests that converge only in part. We should divest ourselves of the romantic conception of perfect harmony, in which arrangements that serve the interests of husbands equally serve the interests of wives or of children. While there are important overlaps, there are also tensions among these sets of interests. What is good for one or both parents may not be so good for minor children.
The question before us is how best to deal with this conflict.
During the past generation, I want to suggest, we have not done very well. We have encouraged, or at least tolerated, the development of a legal system that has struck an inappropriate balance between the interests of adults and those of children. The time has come to readjust the balance. But we must do so within a cultural context in which the value of personal choice and autonomy has risen to unprecedented heights relative to competing norms and values. That is a central aspect of our new cultural reality.
Given this fact, how do we strike a new balance? In outline, here's my answer. In the current cultural context, it is hard to make a case for restricting personal choice when the consequences of choice affect only the agent, or others who are capable of asserting and defending their own interests -- that is to say, competent adults. A strong case for restricting choice can be made when its consequences are borne by those who are not party to it -- especially when they are not adults, are not responsible for their own conduct, and are not considered capable of caring for themselves.
Within this framework, I would propose two goals:
First, we should endeavor to reduce the number of divorces involving minor children.
Second, when such divorces are unavoidable, we should seek to mitigate their consequences for minor children.
Three points of intervention to reduce divorce
There are three points at which we may be able to act to reduce divorces involving minor children.
The first occurs at or before the threshold of marriage. It is stunning how many schools talk about sex while failing to discuss marriage in any sustained manner. It is a legitimate function of public education to treat marriage seriously as a human and social institution.
The same point may be made, with emphasis, for religious institutions. For the overwhelming majority of Americans, marriage remains a sacrament and still takes place under the aegis of religion. If every church and synagogue took as one of its principal tasks the thorough preparation of young people for marriage, it could make a significant difference. There is some evidence that this strategy works best when all the religious institutions in a community unite around this objective in a mutually reinforcing way.
The second point of intervention occurs during marriage. At a minimum, we should systematically reexamine our economic and social policies (and our tax code) with an eye to creating a marriage-friendly environment. In addition, religious institutions should offer programs for couples who want to renew their marriages or confront problems that could lead to marital dissolution if left unaddressed.
The third key point of intervention occurs at the threshold of divorce. We should institute significant changes in the current no-fault regime, in effect creating a two-tier system.
For couples without minor children, current law can be left in place. For couples with minor children, we should eliminate unilateral no-fault -- where one person can readily obtain a divorce without the other's consent -- and return to an updated fault system, with the alternative of a five-year waiting period. And even in cases where both parties consent, there should be suitable braking mechanisms: a mandatory pause of at least a year for reflection, counseling, and mediation.
When divorce cannot be prevented
Even if divorce involving minor children cannot be prevented, there are steps we can take to mitigate its consequences. We have learned a great deal in the past decade about why divorce hurts children. I rely especially on the pioneering work of Sara McLanahan and Gary Sandefur, who identify three principal sources of damage:
Mitigating the consequences of divorce for children, therefore, means working toward three goals: maintaining an adequate flow of income; maximizing post-divorce parental involvement; and minimizing the disruption of socially vital relationships outside the family.
With regard to the economics of divorce, I believe (following Mary Ann Glendon), that we should adopt a "children first" principle. Issues of property division should not even be discussed until adequate provision is made for the economic needs of children. In addition, we need to get far more serious about child-support enforcement. Important legislation has been adopted in the past decade to enhance the capacity of states to work cooperatively, but we can and must go farther.
With regard to the second goal -- maximizing post-divorce parental involvement -- there should be a presumption in favor of joint legal custody whenever feasible. When it is not, non-custodial parents should enjoy the most liberal possible visitation rights. Research suggests that many non-custodial parents are delaying or withholding child support payments because they feel that their visitation rights have been impaired by the custodial parent. So in addition to reducing the parenting deficit, maximizing the post-divorce involvement of both parents with their children could help mitigate economic harm as well.
Finally, to minimize disruption of vital social ties, minor children must be allowed to remain in their pre-divorce neighborhoods and communities whenever possible. For many families, the home is the only significant item of property to be divided between the divorcing parties. Nonetheless, the goal of allowing children to remain in their homes during the period of greatest vulnerability should trump the goal of the immediate equal division of property. This means excluding the home from the property settlement for three to five years.
The moral challenge
The measures I've proposed could make a significant difference in reducing the number of divorces involving minor children and in mitigating their most severe effects. But law can only do so much. In the end, it comes down to a moral question: Is our society willing to put the well-being of children first, even when it may conflict with adult desires and restrain our current passion for unfettered autonomy? The next generation will decide how well we have answered this question, and they will judge us accordingly.
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