Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994
Marriage and the Process of Divorce
The trends in divorce law, division of labor between husband and wife in marriage, the family's right to privacy, and the family's responsibility for children have changed significantly over the past four decades. Laws and public policy relating to marriage and divorce, reflecting some of these changes, have gradually moved away from the concept of marriage as a state-sanctioned, husband-dominated, hierarchical institution, toward the view of marriage as an economic partnership of autonomous individuals, although not necessarily of equals (see the article by Katz). Under the earlier concept, a divorce was granted only after an often adversarial adjudication to find one party at fault for having done something wrong during the marriage, such as being cruel or adulterous. Katz indicates that all 50 states have now enacted some changes in divorce laws to incorporate the more recent concept, that is, over the past 40 years, states have generally expanded the grounds for divorce and simplified the process of terminating a marriage. Most states now grant "no-fault" divorces, but only a few states have entirely done away with fault as a basis for divorce.
There is controversy about some of the effects of these widespread changes in divorce laws (see the articles by Furstenberg and by Katz). To the degree that no-fault divorce has decreased the acrimony and hostility between spouses, as is generally believed to be the case, children have benefitted. There is, however, a difference of opinion as to whether laws permitting no-fault divorce have increased the divorce rate. The advent of no-fault divorce legislation is associated with increased divorce rates in some states but not in others. However, an increase in marital disruption preceded the change in public opinion favoring more liberal divorce laws, and the laws enacted were, in part, a response to public demand and also may have engendered some demand for divorce (see the article by Furstenberg).
Much of the current emphasis in divorce law is on defining the marital assets and determining how they should be distributed to the economic partners of the shared enterprise of marriage when it is terminated. Katz points out that changes in statutory law have, to a certain extent, limited judicial discretion as to this distribution and given more consideration to the noncash contributions of wives and to the financial needs of children. Although there is difference of opinion as to whether no-fault divorce systematically favors one spouse over the other, there is no question that, despite changes in the law, divorce itself has greater negative social and financial effects on women than on men (see the articles by Teachman and Paasch, by Carbone, and by Thompson).
The increased demand for and availability of divorce have focused attention on the dramatic rise in the financial costs of divorce and some of the serious limitations of terminating a family relationship in a court setting using a judicially managed adversarial process (see below). Alternatives to traditional divorce proceedings include summary dissolutions (where children are not involved) and simplified divorce procedures (also called summary process or divorce by mutual consent). These streamlined procedures are being used in a few states because they are more expeditious and less costly for both the parties and the court system than traditional divorce procedures (see the article by Katz).
Divorce through mediation is another alternative for making decisions about property division, spousal maintenance (alimony), child support, and custody. Most states have laws encouraging or requiring mediation to resolve conflicts over child custody and visitation rights. The advantages of mediation over adversarial proceedings are lower costs and, what is more important, the direct involvement of the parties speaking for themselves and actively participating in the decisions affecting children for whom they share concern. However, unfair agreements can result if spouses possess unequal bargaining or negotiating power or skills. All of these alternatives to an adversarial divorce proceeding deserve critical evaluation. Unfortunately, little research on these issues is currently available.
Of primary importance, there is need for education about divorce (see the article by Kelly). Parents need to be educated about the effects of family conflict on children. They need a range of educational and mediational services to diminish rather than escalate conflicts, to focus on what is best for their children at various developmental stages, and to increase the chance for mutual agreement between parents about custody, visitation, and the financial arrangements for their children. Educational and mediational services should be available to prevent divorce. Not only parents, but judges, lawyers, and mediators involved in determining the best interest of a child need a better appreciation of child development, including information about attachment, separation anxiety, the importance of continuity and nurturing relationships between children and adults, and the needs of children during and after divorce. The costs of education about divorce need to be planned for and funded.