Opinion: We do divorce wrong

Since its founding, the no. 1 request made by callers to the nonprofit Her Justice is for divorce representation, and in the current political climate, it’s even more important that folks realize how much divorce is a social justice issue. 

Americans don’t know what to think about divorce. While the divorce memoir is having a moment, politicians in Louisiana, Oklahoma, Nebraska and Texas are proposing the elimination of “no fault” divorce (meaning you do not have to prove in open court what your spouse did wrong to justify a divorce) to return to a time when it was even more difficult to get divorced than it is now. Even though filing for divorce already takes time and costs money, and the social and religious pressure to get and stay married is strong, 42% of first marriages in the U.S. end in divorce. And most people post-divorce, no matter how terrible, are happy they got divorced. It turns out marriage is not a magic wand; it is a legal contract and a social and religious norm. People want to be with people they love and sometimes raise children with them. Happy couples are presumably already staying together; unhappy couples or those experiencing violence should be given reasonable ways to get to safety and stability for the sake of themselves and any children (folks should be safe whether or not they have kids), whether that means staying or exiting the marriage. People’s behavior shows that they know what the law has not yet recognized; a bad marriage is bad for children and their parents, and sometimes divorce is better for everyone.  Maybe it’s not that divorcing is wrong, it’s that we do divorce wrong.

Our social norms are always written into our laws, and the norms usually change before the laws catch up with them. Our system makes it easy and financially advantageous to get married, and hard and impoverishing to get divorced. We do that because our lawmakers have presumed that kids do better with married parents who stay married, and society does better with families grounded in marriage. 

First, our laws message, “Please get married.”  A civil marriage certificate is available at any clerk’s office, and the fee can be waived if you show you are unable to afford it. Married couples receive state legal benefits, such as tax filing benefits, tax credit benefits, a presumption of parentage if they have a child, insurance benefits, health care benefits, and a spousal privilege in court proceedings, as well as federal tax, immigration, social security and military benefits. The age at which someone can marry is set by the states. The laws regarding the age to marry vary greatly, with some states permitting marriage at the age of 15. If you are in a dedicated relationship with someone, there are a lot of incentives to make it legal.

Then, we make it very hard and harmful to get divorced. If you want to be married, you can go to a clerk’s office and have the state rubber stamp that desire. If you want to be divorced, the state must first agree that you should be divorced, and approve of how you will be divorced, before your divorce can be granted. That process rarely takes less than a year and can last for ten. Some of the most enduring harmful impacts of divorce include long-term stressors on children; a reduction in financial security, especially for women; and lengthy and costly court proceedings, which add to the first two harms, while not making light of the real emotional anguish of ending a couple or family. The harm that people associate with divorce is largely of our own making and the system does nothing to reinforce supports that could prevent some of those harms. 

Divorce can harm children in the short term, but there is clear evidence that kids recover quickly after the initial split. The factor that is most likely to impede a child’s ability to adjust post-divorce is high levels of parental conflict during and after a divorce. There may be nothing more high conflict than litigation, which is where most divorces between high-conflict spouses are resolved. While there is research indicating that living with intact families and married parents is protective for children, there is little if any research looking at outcomes between children of a hostile marriage that stays together, and one that gets divorced. The notion raised by J.D. Vance that women should stay in not just hostile but violent relationships for the sake of the children is deeply misguided. Children exposed to violence in the home suffer and have been shown to exhibit long-term harm; the safest thing for children in homes with violence is to be removed from the violence with the support of the non-violent parent. 

Living in an economically stable household post-divorce is also a protective factor for children. But in our system most children end up less financially secure after divorce. While parenting is more evenly divided across gender lines than ever before, in most heterosexual relationships the mother is the primary caregiver, and therefore most likely to retain primary physical custody of the child in a divorce (currently, about 80% of children are raised primarily by their mother). Most studies show that women tend to suffer economic downtown post-divorce, unlike men who often see their incomes go up. Here again, our systems worsen the harm, and don’t do enough to alleviate it. 

Of course it is more expensive to be the parent primarily in charge of raising a child, but the legal system is supposed to ensure that the other parent contributes to the child’s care to help level the playing field, and share the cost fairly. Child support is the legal mechanism to make that happen. In 2021 the federal government was overseeing $113.5 billion in child support arrears, 88% of which had been owed for over 5 years, and 30% had been owed for over 20 years – meaning those children had reached majority without receiving support from their non-custodial parent. In 2018, about half of all custodial parents received some of the support they were owed, and less than half received the full amount. Clearly, our enforcement mechanisms are woefully inadequate. These numbers only represent families who went through a legal process to seek support; many others set up informal mutual support arrangements which can work, until they don’t. 

Getting legally divorced puts unhappy people through an adversarial process that requires expensive legal representation and can last years. The cost of a lawyer is out of reach for most. Even “simple” divorces in which people fundamentally agree on terms, the “do it yourself” packet is 190 pages long (in New York at least) and includes financial disclosures and legal forms. The duration of the proceedings means that any antagonism lasts even longer, exposing children to more harm and delaying their recovery. And the longer it takes, the less money is left over to provide the children with the financial stability that would also benefit them. It’s important to note that if there has been abuse in the marriage, the impact of the entire process is even worse (even though that’s when you might most want someone to be able to quickly and safely exit a bad situation). Leaving is a dangerous time for victims of abuse, yet the system puts them in regular adversarial contact with their abuser who has the power to refuse even reasonable terms, thereby dragging the divorce out sometimes throughout their kids’ entire childhoods. 

The best way to protect against the harm of divorce is not to push people to get and stay married, but instead to create legal systems that support couples who decide to separate so that they can do so quickly, simply and fairly. Our current system does the opposite. Our family and divorce laws are out of step with what families look like today, and what we know is best for families.  Our laws should be as supportive of simple divorce as they are of simple marriage. To quote marriage research Stephanie Coontz: (Coontz) “. . . we [have] spent hundreds of millions of dollars promoting marriage and to null effect. Maybe we should spend it giving families the money they need to raise their children in secure ways.”