Family Law

Divorce Reform: We Need New Solutions, Not a Return to Fault

by Michael A. Robbins

The other bill expected to be introduced provides for ‘‘covenant marriages.’’ A covenant marriage is a statutory marriage contract that is voluntarily entered into between the parties. If the parties agree to a covenant marriage, they agree to the following:

We solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife so long as they both live. We have chosen each other carefully and disclose to one another everything that could adversely affect the decision to enter into this marriage. We have received pre-marital counseling on the nature, purposes, and responsibilities of marriage. We have read the Secretary of State’s pamphlet on covenant marriage, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we declare that our marriage will be bound by Michigan law on covenant marriage, and we promise to love, honor and care for one another as husband and wife for the rest of our lives.

The proposed law governing covenant marriages would provide that a divorce could not be granted until the following conditions were met:

A. The plaintiff and defendant have received joint or individual marriage counseling from a minister or a marriage and family therapist.

B. The defendant committed ‘‘fault,’’ such as adultery, imprisonment, abandonment, physical abuse, etc.

Initially, let me make it perfectly clear that most divorce lawyers are not opposed to ‘‘divorce reform.’’ In fact, the Family Law Section of the State Bar of Michigan is dedicated to improving family law in Michigan. The intent behind these ‘‘divorce reform bills’’ is admirable; the drafters of these bills should be commended for trying to reduce the divorce rate and the adverse consequences of divorce. However, the reinstitution of ‘‘fault’’ divorces simply will not accomplish that goal. It will, in fact, make matters worse for individuals and children going through a divorce.

In 1972, the state of Michigan repealed ‘‘fault’’ divorces for very good reasons. People were saying and doing whatever was necessary to get around the law. The ‘‘fault’’ law created needless hostility, collusion, and perjury. In the end, individuals who wanted a divorce found a way to obtain that divorce. The abolition of ‘‘fault’’ divorces was nothing more than a recognition that no law will ever have the power to force people to stay together if they don’t want to. In other words, you can’t legislate morality or friendship.

Unfortunately, nothing has changed since 1972. If one party wants a divorce, they will find a way to get it, whether it be by divorce or separation. For example, if a judge were to tell an individual that he or she did not satisfy the ‘‘fault’’ requirement and had to remain married, do you really think he or she would do so? Ultimately, there would be a separation or abandonment. If this were to occur, the situation could be worse for a spouse and children because there is no law in our state that provides for alimony, child support, or property division without the filing of a complaint for divorce or separate maintenance. In this situation, the parties would continue to be married, but the reinstitution of ‘‘fault’’ did not save their marriage.

I keep hearing the same reasons in support of the reinstitution of ‘‘fault’’ divorces. Proponents argue that it will lower the divorce rate and that an innocent spouse will receive an economic advantage. Each one of these arguments, however, is erroneous. First of all, there is no evidence that the reinstitution of ‘‘fault’’ divorces will lower the divorce rate. In fact, divorce was on the rise under our ‘‘fault’’ system and statistics presently show that divorce is on a decline. Second, the reinstitution of ‘‘fault’’ divorces will not give any more bargaining power to the innocent spouse than they already have. Under our present system, the court can still consider ‘‘fault’’ when it comes to division of property, an award of alimony, and a determination of custody.

If we went back to the old ways of 1972 and reinstated ‘‘fault’’ divorces, the following negative consequences would most likely occur:

a. Parties would resort back to the same hostility, collusion, and perjury that occurred in 1972.

b. Divorcing couples would be placed in a more adversarial relationship.

c. More concentration would be spent on who was to blame in the breakup of the marriage, and less time spent on trying to amicably resolve the issues in dispute.

d. With each side trying to prove who was to blame, there would be more litigation and nastier divorce trials.

e. Divorces would become more expensive.

f. The court system would become more congested.

g. The potential for domestic violence would increase.

h. Innocent children would now have to witness the character assassination of their parents. In the end, there would be a judicial determination that the children will carry with them for the rest of their lives, that one of their parents was at ‘‘fault’’ in the breakdown of the marriage.

The above are just a few of the negative consequences that could result in the reinstitution of a ‘‘fault’’ system. What are the positive? I have seen no statistics showing that forcing children or spouses to stay in an unhealthy relationship would cause fewer problems or turmoil than allowing them to leave.

The only plausible argument in support of reinstituting ‘‘fault’’ is that it may give a better bargaining position to the innocent spouse when a divorce is filed. In other words, ‘‘I will give you your divorce, but only if you give me....’’ Although this may be true, this one positive result would come at the cost of reinstituting all of the negative consequences of a ‘‘fault’’ system. Once again, it isn’t necessary because an innocent spouse already has that clout under our ‘‘no-fault’’ system.

What, then, is the answer?

First of all, we need to recognize that divorce is not the cause of society’s problems, but rather a result of society’s problems. If we really want to reduce the divorce rate, we need to find the causes of divorce and work on resolving them. This could be accomplished in three ways:

•Through education and counseling

•Through reform of our divorce laws

•Through reform of our court system

Education and counseling are perhaps the best ways to reduce the divorce rate. We need to educate individuals on the negative consequences of divorce, both before marriage and during divorce. If we offer premarital education and counseling to individuals in such areas as parenting, financial planning, conflict resolution, legalities of divorce, and the negative consequences of divorce, then maybe we can teach individuals about the commitment and responsibilities that are necessary for a marriage to work before they are married. In addition, we may discourage individuals from getting married if they are not willing to accept those responsibilities.

We also need to offer education and counseling before we allow a divorce to take place. For example, if divorces are caused by lack of parenting skills, then we need to teach parenting skills. If divorces are caused by drug abuse, alcohol abuse, or spouse abuse, then we need to have better access to mental health facilities. If divorces are caused by constant fighting, then we need to teach conflict resolution. We also need to educate parents on what their children will go through during and after a divorce. In the event couples ultimately choose to divorce, they must be educated on the negative consequences of divorce. If such counseling may save a marriage, then it should be ordered before a divorce is granted.

We can also deal with the negative consequences of divorce by re-examining and modifying our divorce laws. If we want to give more clout to an innocent spouse, then we can do that through legislation. We can also re-examine our alimony laws if they are inequitable or mandate alimony guidelines like we do child support. We can re-examine our child support formulas and legislate better collection procedures. We can legislate or encourage better enforcement for violation of court orders. Finally, we can mandate counseling and longer waiting periods before marriage and prior to divorce.

The last way we can reduce the negative consequences of divorce is through a more effective court system. This was one of the main reasons we adopted a Family Court. We now have judges who have agreed to hear family law cases and will take the time necessary to help resolve those cases. We must give this new court system an opportunity to work. Perhaps now is the time to re-examine the Friend of the Court and make positive changes in that agency.

We need to hold individuals, lawyers, and judges more accountable in divorce situations. If everyone assumes more responsibility in the process, then divorce and the negative consequences will be reduced. The reinstitution of ‘‘fault’’ divorces is not the answer. Forcing individuals to stay in a broken relationship is not the solution. It doesn’t even address the problems that led those individuals to seek a divorce in the first place.

Some people argue that getting a divorce is too easy. I don’t agree. I have never met a client who has indicated that to me. Most clients indicate that divorce is the worst thing they have ever experienced. Personally, I can’t imagine a more painful way to end something that started out with so much hope. Unfortunately, divorce is sometimes the only solution and it would be irresponsible to make it more difficult to obtain.

The reinstitution of ‘‘fault’’ divorces has no place in our law today. The reasons it was repealed in 1972 still exist today. It is ridiculous to think that the introduction of such a bill would somehow cause families to stay together or reduce the divorce rate. This simply will not happen, and the costs of this experiment are too great. We can not go back to the old ideas of the 1950s and ’60s by reinstating ‘‘fault’’ divorces. As we enter the new millennium, we need to go forward with new ideas when it comes to dealing with the age old problem of divorce.

Michael A. Robbins
Michael A. Robbins is a partner in the Bloomfield Hills firm of Victor & Robbins. He graduated from the University of Michigan with "high distinction," receiving a bachelor’s degree in general studies, and continued his education at Wayne State University, receiving a juris doctorate degree in December 1981. He is past chair of the Family Law Section of the State Bar of Michigan, is currently vice president of the Michigan Interprofessional Association, is a fellow in the American Academy of Matrimonial Lawyers, and is a member of the American Bar Association Family Law Section, State Bar of Michigan Family Law Section, and B’nai B’rith Barristers. He is licensed to practice law in the U.S. District Court for the Eastern District of Michigan and before the Supreme Court of the United States of America.

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