WANT OUT? JUST FILE PAPERS AND MOVE ON

September 24, 2009

On September 5, 1969, Governor Ronald Reagan signed the Family Law Act, launching California as the first state in the nation with ‘no-fault’ divorce.

The law quickly took hold elsewhere, including Iowa, which followed California’s lead six months later.

By 1971, Colorado, Florida, Michigan and Oregon had no-fault divorce laws and within fifteen years the law had spread nationwide.

Most policy analysts agree that no-fault divorce has weakened the “traditional family since one person could now end the marriage unilaterally.” Some say it threw open the door to “marriages” of same-sex partners, since adultery - which has a particular definition - was taken off the law books. Same-sex partners are not capable of adultery and hence, could now qualify for divorce on the basis of “breakdown” of the relationship.

Within 15 years, every state had followed suit in some way, and the so-called Divorce Revolution was on its way.

What motivated people to enact no-fault divorce laws?

One reason was that, in a fault system, a divorce required at least one spouse to prove that the other had committed adultery, abandonment or abuse. This meant hiring a private detective and/or collecting incriminating evidence for the court.

Or - and this happened far too often - couples who both wanted the divorce had to resort to manufacturing evidence - faking abandonment, for instance. This kind of fraud insulted the court, legal professionals complained.

And then there were the genuinely ugly divorces, in which both spouses hurled blame and evidence at each other. Everyone suffered, including the children.

Thus, the noble purpose of no-fault divorce was to remove the contentious, annoying legal requirement for couples to prove anything other than their desire to divorce. After all, the thinking went, if marriage was the union of two people, and one person wanted out, then the union was no longer viable.

Except that wasn't the whole story.

"The key to understanding the problem is to recognize that the grounds for divorce did not go from fault to no-fault; they went from mutual consent to unilateral," said Allen Parkman, University of New Mexico economics professor and author of books on divorce.

Under the fault system, "most divorces were negotiated and eventually [happened] based on mutual consent," Mr. Parkman said. But once one person could legally end the marriage, "there was no longer any need for negotiations."

University of Virginia Sociology Professor W. Bradford Wilcox write that the 40 years of divorce-on-demand has left a "poisonous legacy." Wilcox is also the director of the National Marriage Project and he has detailed his observations in an article in the new National Affairs quarterly.  He has documented that it is the No Fault Laws that classifies marriage as a "throw-away commodity, one step away from being useless."

Divorce expert Judith Wallerstein said in 2005 that the number of children affected by divorce was 1 million children a year, since 1973. These young people's passionate, even pathological, fear of divorce continues to reverberate through the culture via rampant cohabiting and delayed marriage.  Children no longer live in an environment of certainty and thereby live with an inner fear of familiar instability."

Who were the key players in this family policy revolution? Who were the ‘villains’ and were there any ‘heroes’?

Some might name Governor Reagan as the biggest villain since he could have blocked the bill by vetoing it. He himself had been divorced-against-his-will by his first wife, actress Jane Wyman and he considered himself a family man. Although his name will be forever linked with no-fault divorce, it turns out that he may be the only who has expressed regret about his role.

Late in life, Reagan confessed to his oldest son, Michael that, signing the bill was one of the worst mistakes he ever made in public office. Michael tells the story about his father in Twice Adopted .

While Reagan had a prominent visible role, the man who was probably the most responsible for this bill worked behind the scenes and his story is not well-known.

Assemblyman James A. Hayes from southern California was self-described as the bill’s author. By the time he attained the role of Assembly Judiciary Chairman, his wife had already filed for divorce on the ground of ‘cruelty.’ Hayes’ new role on the Judiciary Committee provided him with an opportunity that he used to his personal advantage.

With the implementation of no-fault divorce on January 1, 1970, the rules of the game abruptly changed, turning the tables on all pending cases, including that of Hayes’ wife. As a result, Hayes was able to reduce his ‘damages’ in the final settlement. The newspapers later reported that his wife and four children did not fare so well and turned to food stamps.

Hayes claims he coined the term “irreconcilable differences” because he didn’t like the proposed term, “breakdown” — it sounded too negative.

Hayes had to convince Reagan to sign the bill, and during their one-hour meeting Hayes found the job challenging. Reagan wanted to veto the bill, but Hayes pressed him to sign it by ticking off the names of those who were ‘on board.’ In fact, in Hayes reflections on that period, he made it sound like everyone was on board.

Hayes even claimed that he worked with representatives of the Catholic Church and that the Archdiocese of Sacramento was particularly supportive.

In 1969, Republicans controlled the political scene in California, with Reagan just having defeated Pat Brown, a Democrat. Republicans also controlled the senate and assembly. The Republican Party would later take on the title of the “Party of Family Values.”

Iowa, which was the next state to enact no-fault, was also Republican-controlled with its own popular Republican governor, Robert Ray, signing the bill.

By all accounts, there were few if any heroes. Most policymakers were ‘sold’ on the bill, but when looking at previous accounts, it’s not clear whether they really understood what it the bill would do. Most accounts portray it as a “mutual consent” type of measure, but in reality, it was not. Only one party needed to bring a divorce action knowing that the “State” would assure them of the outcome.

Looking back at what we now know, is this fortieth anniversary begging some questions?

One question might be whether there was deception in the process. Would a similar law be possible today if the story got out that the main player had such a strong personal vested interest? At the time, the media did not report on the divorce lawsuit filed by Hayes’ wife.

Secondly, would Church officials have endorsed this bill if they’d known the full truth about it — that it would quickly turn into “unilateral divorce-on-demand” with the state doing a yeoman’s job for the one filing for divorce, leaving the other party defenseless in such a lawsuit?

In Iowa, some legislators labeled the bill an “attorneys’ bill” because they could see the benefit to members of the bar but no benefit to families.

One of the bigger questions that Christians might consider is this: How did the State obtain such sweeping jurisdiction over this God-ordained institution? Is marriage merely a civil institution? Does pre-marital instruction, along with promises to live up to church teachings mean anything?

As a church leader is have often asked where does the Church fit into the picture? And, where are the “church courts” that could hear cases falling within the her jurisdiction?

Do the Canons and teachings of the Bible apply only “after the fact” –- once the divorce is finalized? Or, are these elements meant to be a strong buffer, bringing couples back to their vows and to the teachings of the Church?

“Jurisdiction” is loaded with implications. Under whose jurisdiction do we place ourselves? Canon law is written for “The People of God.”

Most people who are intent on filing for divorce will seek the jurisdiction of the civil court. The first step is usually hiring an attorney to prepare the paperwork. But, what if it didn’t work that way?

Maybe Church officials should be prepared to assert jurisdiction when approached. Why should we be limited to only one jurisdiction? We are asked to make a commitment to church teachings at the front end of marriage. Why shouldn’t we ask church leaders to provide a forum like the one Paul talks about in 1 Cor. 6:1?

The Apostle Paul admonishes us about bringing lawsuits against our brothers. We are supposed to be able to settle things amongst ourselves, using a fair and just process.

We could learn how to set up church governance in such a way that those who stray to the civil arena could be called back. They could present their complaints and have them heard amongst those who are properly trained. In the beginning, very few would know how to hear a case and provide a fair and just process. But, we could learn.

Instead, too many members of the flock now find themselves disillusioned after receiving a summons for divorce from the civil court, turning to ask for help from the Church, and then being turned away. Just because we don’t know how to do it now, doesn’t mean we can’t learn. There’s an opportunity here. Will we respond?

Most churches have so many committees doing various things. Why not one more committee: the Complaints and Adjudication Committee?

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.