Many people, and not just conservatives, are concerned that traditional marriage is on the decline and under attack in this country. This concern is legitimate, but many of the causes people blame for the decline of traditional marriage are not really getting at the root of the problem.
Traditional marriage, or a long-term legal arrangement between a man and a woman involving children and one spouse making most of the money, is on the decline for powerful economic forces more than changes in social attitudes. In fact, it makes a lot more sense to interpret the changes in social attitudes more as a result of the economic forces. What are those economic forces?
To begin with, most couples cannot afford to raise children, or even survive themselves, on one income. Real wages for most people have been flat to declining in this country for a long time. Inflation, even during recessions, continues and is under-reported by government statistics.
This situation is not going to change any time soon as it results from globalization and the decline of private sector unions. The fact that public sector jobs, which are not subject to market pressures, pay 40 percent more on average with better benefits and job security than comparable private sector jobs is additional evidence of this point.
The bottom line is that not much can be done about the market forces that have made it necessary for most families to have both spouses working and earning some money. Of course the government could step in and provide more subsidies or financial incentives for one spouse to stay home, but we really don’t need more government interference in our lives and this wouldn’t fix the problem anyway.
However, there are other powerful economic forces at work that are caused primarily by the structure of our divorce laws in this country. In most states, with no-fault divorce and some version of community property and spousal support to the lower earning spouse, there is actually a very strong financial incentive for the less wealthy spouse who is earning less money to file for divorce simply because it is profitable to do so.
It is also very easy to get divorced in most states. This situation creates a strong disincentive for men and women with asymmetric finances to get married or, if they do get married, it creates a strong incentive for the wealthier spouse to negotiate a pre-nuptial agreement.
Nevertheless, even pre-nuptial agreements do not entirely eliminate the risk of the less wealthy spouse seeking a divorce for profit, especially if children are involved. Pre-nuptial agreements are also frequently challenged in litigation for a variety of reasons.
The more you look at divorce laws, the more obvious it is that they create incentives for bad behavior. They encourage spouses to earn as little as possible and push the other spouse to earn as much as possible. They encourage spouses to have children because they want more financial assistance in a divorce. They encourage the wealthier spouse to hide assets and income. They encourage both spouses to spend fortunes on legal fees fighting over the spoils, even if this is done at the expense of the lives of children involved.
In addition, they do not provide any incentives for people to be good to one another, not hurt each other, and do their best to stay together. This is all wrong, both morally and economically.
A few simple changes to the divorce laws could dramatically improve the incentives for married couples. First, eliminate no-fault divorce unless both parties consent to it.
Second, if the lower earning spouse is requesting the divorce, he or she would need to demonstrate that the other spouse was at fault because of some kind of abuse or habitually bad behavior in order to be awarded anything beyond basic living expenses and, if children are involved, basic child support if custody is given. No assets would be considered community property unless designated as such or jointly owned in some other way.
Third, if the higher earning spouse is requesting the divorce, he or she would need to demonstrate that the other spouse was at fault because of abuse or habitually bad behavior or the assumption relating to community property would be reversed.
All assets accumulated during the marriage would be considered community property unless designated otherwise. In addition, if both spouses cannot agree on a settlement, they would be required to undergo six months of couples counseling and then submit to binding arbitration for the settlement if they still cannot agree.
No litigation would be allowed. Lawyers could be retained, but only to represent the spouses in the arbitration proceedings. Arbitration rulings could be appealed, but only once. If future financial circumstances change, ongoing spousal or child support could be revisited via arbitration as is allowed under our current system.
The current system of divorce laws benefits dishonest, lazy spouses and greedy divorce lawyers. It harms traditional marriage and destroys trust between men and women who are married or are thinking about getting married. It harms children who are used as pawns in a chess game being played for money.
The changes suggested here are nothing more than common sense that would be fair to both spouses, reward good behavior, and punish bad behavior. Unfortunately, the divorce laws in this country are mostly written by divorce lawyers, who have the strongest of financial incentives to make spouses hate each other and spend as much as possible on legal fees fighting over everything.
For the record, I’ve been married for nine years and have never been divorced nor do I come from a household involving a divorce. So this isn’t personal for me. It’s just the right thing to do for everyone involved, especially children.