Understanding Divorce: the Laws, the Process and the Effects

The courts are the "gatekeepers" for the divorce process. A judge’s role is to see that couples meet all the legal requirements before they pass through the divorce "gate" that ends the marriage. A divorce decree is the proof that they have successfully met all the legal requirements. The other name for divorce is "marital dissolution". Dissolving the marriage means that you are taking back all of the promises you made when you got married, and dissolving the "partnership-contract" you made with your spouse. But when you have children, you've made an "implied" contract with them when they were born that you would care for them and that means cooperating with your spouse in order to do that. In other words, there are parts of the marital contract that cannot be dissolved. That is one of the reasons why some claim - based also on religious beliefs - that marriage is for a lifetime. The only problem is that a marriage is no longer truly recognized as a contract, since one spouse can end it without the consent of the other spouse or without remunerating the other spouse for "lost value". Marriage was downgraded to a "status" many years ago so that divorces could be freely granted in one state without being nullified by another state. Easy access to divorce---the "right to divorce"---became more important than the promises made at the time of the marriage. This change - making marriage a "status" – along with the passage of no-fault divorce laws, means that if one spouse wants out, the judge will grant a divorce. It is also called Unilateral Divorce. But, I believe that being 'forced' out of a marriage was not the kind of change that legislators believed they were making when they enacted no-fault divorce, state by state. No-fault divorce was believed to be a "good idea" that would relieve much of the guilt and blame surrounding the divorce process. The first state to replace all grounds for divorce with "no-fault" was California, in 1969. This sweeping change in the rules-of-the-game was quickly replicated by other states – with minor variations. Turning divorce into a more routine exercise - without the previous need to blame one spouse for the breakdown - had a certain merit, but one of the consequences of the law-change was that it wiped out the 'rights' of the other spouse--- who did not want the divorce. Previously, the defendant had a "voice" in the matter. If they were falsely accused of misconduct, they could defend themselves – and the marriage – from divorce through a trial. And, if they had done no wrong, the divorce would be denied. With the current laws, the rules have changed. Even though the law says that a case can go to trial if the defendant feels it is not 'irretrievably broken', few – if any - cases do anymore. And having a judge order counseling---or other services--- to promote reconciliation - that is unheard of. After the law-change, attorneys and judges began operating under the assumption that one spouse wanting out was all the "evidence" needed to end the marriage. The thinking at the time was that if the marriage had broken down, then the humane thing was to give it a decent burial (divorce) and that by making it as stress-free as possible through a blameless system called "no-fault" divorce, families would be better off, especially if they did it without a lawyer - called 'pro se'. But there is mounting evidence that when marriages are in trouble - if given the right "medicine"- or just given more time - they can pull out of the tailspin. The worst cases can sometimes have the biggest turnarounds! In the book, The Case for Marriage, authors, Gallagher and Waite, present surprising news. Many spouses who state they are "very unhappy" with their marriages, when asked five years later, say they are "very happy" with their marriages---with no interventions. Judith Wallerstein’s book, The Unexpected Legacy of Divorce, tells of the lifelong effects on children. When children-of-divorce begin to form their own intimate relationships, they have trouble, and some even subtly sabotage these emerging relationships – demonstrating a kind of self-fulfilling prophecy that intimate relationships won't last. Seeing Mom and Dad "fail" is indelably imprinted in their payche. All in all, most people are truly uneducated about what Divorce American Style is like - what the laws do and don't do - unless they have experienced it. And, too many do not understand how strongly divorce impacts children.