September 24, 2009

This month marks the 40th anniversary of the earthquake that rocked the American family. Such an anniversary deserves to be remembered.

On Sept. 4, 1969, California Gov. Ronald Reagan signed a "no-fault" divorce law.

California wasn't the first state to pass a no-fault provision - that honor went to Oklahoma (1953), followed by Alaska (1963) and New York (1967), according to the 2004 Handbook of Contemporary Families. But California was the first state to cast out "fault" in divorce entirely and replace it with "irreconcilable differences."

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."

The 40 years of divorce-on-demand has left a "poisonous legacy," wrote W. Bradford Wilcox, University of Virginia sociology professor and director of the National Marriage Project, who detailed his observations in an article in the new National Affairs quarterly.

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.