Domestic Relations Reform



Assuming government continues regulating domestic relations, laws regarding formal marriage ought to be more restrictive than those regarding divorce, not the present illogical reversal.  As it stands, a marriage license is easier to get than a drivers’ license or a hunting license.  I won’t propose a mandatory minimum marriage age, but young aspirants ought to be discouraged.  China recognizes the proper, almost mandatory ages as 25 for women and 28 for men.  India’s divorce rate proves marriages arranged by adult parents work out better than those by hot-blooded 20-year-olds.

Marriage requires licensing, but having children does not.  The reverse would be more sensible; but of course the very idea is impracticable as well as fascistic.  Nevertheless, mandatory premarital counseling to include the legal, sexual, financial, and other aspects should be required.  It is preferable to have attorneys involved before a marriage rather than after.  Premarital contracts, presently honored by the courts only if the female litigant wishes them to be, should be more closely adhered to.

Marriage should include strong, legally binding agreements requiring, where there are young children, counseling in the event of marital problems and a waiting period prior to divorce.  Covenant marriages are advisable.  When two people bring children into the world, their primary responsibilities shift, or should, from themselves to their children.  Even the liberal (not neo-liberal) John Locke said that the state should make parents stay together until the children are raised.  Unless marriage is permanent and sacred, it becomes an increasingly vulnerable and embattled institution that collapses before every temptation and crisis.  Any contract, including formal marriage, should ensure that each party has a legal and moral right to expect the other to comply with its terms, and that violators suffer consequences.

Divorce laws have been modified so often they are practically unrecognizable.  When you have patched a tire too many times, you start thinking about getting a new tire.  Domestic relations are too important, dignified, and delicate to be administered in the present manner.  They must be protected from barratry, exploitation, and aggravation.  Family integrity can better be preserved by just and competent administration, using constructive, intelligent approaches.  High offices carry with them the responsibility of making reasonable decisions and measuring up to standards above the abilities of many judges.

Family Arbitration Centers (FACs) were proposed by early divorce reformers in the 1960’s to remove divorce from the butcherous arena of the courts, and place it under the jurisdiction of various professional experts.  Granted, judicial duties can be strenuous and unenviable.  As many hostilities are vented in divorce court as in a prison full of Black Panthers.  As our present political climate manifests, you can’t please everybody.  However, if faced with a choice between a prejudiced judge and a prejudiced psychologist or social worker, I’d prefer the judge.  Theoretically there’s opportunity to appeal judicial decisions.  Bad judges can sometimes be voted out of office.

The strongest opposition to FACs came from the legal profession which fought to protect the divorce racket.  Additionally, it was unable to garner sufficient signatures to be placed on the California election ballot, which left reformers with one major question: what should be the rationale for divorce — fault or No-fault?  The question becomes, which is the lesser of two evils?

Because the exclusively “No-fault” concept is even worse than the old fault system, over thirty years ago this writer devised a solution dubbed “fault option.”  The idea was to alleviate instead of inflame basic conflict where possible, while preserving moral and legal rights.  It resolved the dilemma, utilizing the best, and eschewing the worst, of both fault and no-fault modes.  Under it, legislatures need not choose for citizens between the fault and no-fault modes; it is presumptuous for them to do so.  Today’s citizens aren’t children; they have evolved sufficiently to participate, to some degree anyhow, in the conduct of their own lives.  My proposal would permit the principals themselves to decide under which mode to proceed.  It would work thusly:

A. The No-fault mode would allow couples to avoid the destructive, mud-slinging and expensive atmosphere of adversary courts, obtaining their divorce from a court clerk on mutually consented terms, much as they got married.  This mode would apply only if both parties agreed to it and to the terms.

B. If agreement couldn’t be reached, the fault mode would apply, and the parties could go to the mat in court.  This would preserve the constitutional right of injured parties to redress grievances in court.  Injury and culpability would be factors in determining financial and property awards.  Either party could demand this mode apply.

By thus removing a large percentage of divorces from the courts, judicial workload would be cut sufficiently to function properly.  The Minnesota Legislature ignored the proposal, but similar proposals may have gained traction in other legislatures recently.

Mediation is strongly recommended before proceeding to the law and lawyers.  The right to jury trial must be reexamined.  The European inquisitorial system, wherein the judge has far more latitude to seek out facts for himself, is another logical alternative to the adversary system for domestic relations.

Application of the elementary behavioral principles – positive and negative motivation – is necessary for reform.  Presently, women initiate many divorces because they are positively motivated to do so by assurance of obtaining custody, alimony, support and the lion’s share of property, enforced by all the powers government can muster.  Conversely, men are coerced into supporting truant families by negative motivations.

A two track reversal of these motivational factors is necessary.  The first track provides positive motivations for men to carry out their genuine responsibilities.  The best positive motivations are guarantees of paternal rights and prohibition of unreasonable alimony and support.  The second track provides negative motivation for women to remain married by removing the positive motivations to divorce.  Wild horses couldn’t drag most women into divorce court if cases were judged solely on merit and they stood an equal chance of losing.

Proper use of motivation principles would result in:

·         many more fathers having child custody, drastically reducing the need for public assistance and support collections,

·         divorce itself being greatly reduced,

·         reduced juvenile delinquency and other aberrations due to reduced divorce and mother-custody rates,

·         those men without custody, but who lost fairly, being much more inclined to meet support obligations because they would pay only a fair amount of support and their visitation and other rights would be enforced, reducing even further the need for public assistance.

Nearly all needed reform measures fall into a common category – fairness to men – which admittedly relies heavily on interpretations of “fairness.”  Proper interpretation of fairness would require that:

·         because marriage is a lifetime contract, spouses aspiring to terminate it unilaterally without very good cause be prevented from absconding with the fruits of marriage,

·         merit, not sex, become the criterion for awarding custody, property and money,

·         responsibility for support be reasonably and equitably shared,

·         rights be enforced with equal vigor to that of responsibilities.

There are mighty few circumstances wherein an erstwhile mate planning to abscond, that is — leave without good and sufficient reason, has any moral right to take common assets with him or her, certainly not those owned by the other prior to marriage.  Some circumstances might justify a deferred, or post-marital, incremental settlement though.  An example is the case of a guiltless bride who sacrificed a career in order to work, thereby financing the husband’s education, which paid off handsomely.  Then it should not be called alimony, but her rightful share of a common investment, some of which hasn’t yet accrued.  Conversely, a divorced man might have something coming from a woman whose education or training he financed.  Property settlements should be flexible, taking into account such factors as premarital ownership, respective contributions to the estate, and – lastly – needs of the parties.

Because most temporary hearings are unnecessary, except in actual emergency situations (their real purpose is usually to order several hundred dollars – at least – to one or both lawyers), they should be allowed only in emergency situations.  To be Constitutional, rules of evidence must apply in evictions.  Otherwise there’s too much abuse of process.  Any party aspiring to shed a mate, and unable to prove that mate’s presence to be dangerous, ought to be the party removed at a temporary hearing.  If safety were the consideration, it would be more reasonable if the party feeling threatened voluntarily left.  The September, 1974, advice of Judge Archie Simonson of the Dane County Family Court, of Madison, Wisconsin, to cease routine ex parte removal of husbands, should be precedent for every court in the land.

Any state generous enough to provide for guardians ad litem should he required to pay the costs of such generosity.

Contrary to the ACLU and the Supreme Court, separation of church and state shouldn’t require rejection of all moral considerations.  Thomas Jefferson’s phrase, ‘wall between church and state,’ does not appear in the Constitution, and even if it did it would not require rejection of morality.  If the law can prohibit gambling, prostitution, and selling merchandise on Sunday, it can recognize moral turpitude as a factor in divorce and custody.  The legislation of morality is either prohibited by the First Amendment or it is not; we should not have a double standard.

While politicians are nearly all of the same sanctimonious mold when it comes to domestic reform, there are exceptions.  Some with both feet on the ground occasionally propose legislation to reform the system, but the incessant battering of opposing forces demolishes most reform proposals like pieces of china in a bull shop (as mentioned above in So. Dakota).  Iowa may set a good example for other states in national family politics.  Its shared parenting legislation may have national implications.  Though the Democrat party line had previously been against it, the bill passed the Iowa Senate unanimously, and was signed by Democrat Governor Thomas Vilsack.  Iowa Republican U.S. Senator Charles Grassley, original lead sponsor of the Parental Rights and Responsibilities Act (PRRA), is reputed by many to be the most pro-family member of the US Senate.

The government must come to recognize the stability that a father brings to a family and society.  President George W. Bush has publicly acknowledged his belief in the importance of marriage.  His administration has called for $360 million a year to be spent on pro-marriage research and activities as part of welfare reform, but the legislation is tied up in a quarrelsome senate.

The following policy statement was adopted by the Conservative Party of Canada on March 19, 2005 at their convention in Montreal: “A Conservative government will make the necessary changes to the Divorce Act to ensure that in the event of a martial breakdown, the Divorce Act will allow both parents and all grandparents to maintain a meaningful relationship with their children and grandchildren, unless it is clearly demonstrated not to be in the best interests of the children.”  The policy was adopted with strong support and almost no opposition.

Courts can do right also; in May 2004 the California Supreme Court acted to give courts the power to restrain proposed move-aways by custodial parents that are harmful to children.

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Last modified: March 30, 2017