Divorce, Bankruptcy and Paternalism
No-fault divorce and the "Covenant Marriage"
Quick announcement: Thank you very much to everyone who attended the first ACAF book club, it was a blast and the level of discussion exceeded my already high expectations! As such, I will be hosting another one on December 27th at 5:30PM EST which will discuss (drumroll please) Louise Perry’s The Case Against the Sexual Revolution. The event will be for paid subscribers who RSVP on this google form and I will send out Zoom details the day of. Hope you can join us!
I see no-fault divorce as analogous to debtor-friendly bankruptcy laws: both place a floor under how bad things can get when you make a major commitment and things don’t go according to plan. Both lower the risk of signing life-altering contracts, whether it's a marriage contract or a loan agreement, by guaranteeing an escape route—rules-bound but accessible—in case your future self comes to feel that your current self made a mistake.
And when we lower the risk involved in doing something… the result is that we’ll get more people doing the thing in question all else equal (which I recognize it often is not). So just as debtor-friendly bankruptcy laws can encourage risk taking and entrepreneurship while also providing some level of protection against predatory lending, the availability of no-fault divorce should, at least in theory, encourage higher rates of legal marriage (as well as higher rates of divorce).
Of course the acceptance of no-fault divorce also reflects a shift in how we view marriage as a society. And It undeniably reduces the level of commitment that marriage represents, making modern marriages less binding than past marriages which faced more restrictive exit options. While I fully support encouraging marriage—given its association with various positive life outcomes and its effectiveness as a framework for raising children—I’ve argued before that the optimal rate of divorce is not zero. Divorce before having kids, in particular, doesn’t really strike me as much more tragic than a long-term breakup without any legal dimension.
But another way of looking at the acceptance of no-fault divorce is through the lens of paternalism. Essentially, it implies that we don’t trust people to make truly binding lifelong marital agreements. So we give them this backup option whether they ask for it or not. But… what if marriage which could be ended through no-fault divorce was kept as the default option, but we also allowed individuals, should they so choose, to enter a marriage which can only be exited in extreme circumstances, where it can be proven that one party has broken the basic vows involved.
This is the idea behind the “covenant marriage” versions of which are offered in three states, Arizona, Arkansas and Louisiana. States which offer covenant marriages allow couples to opt-in to harder to exit marital contracts which can only be dissolved under exceptional circumstances. From the linked NYT piece:
Traditional marriage allows a couple to enter the union by filling out a marriage license (among other state requirements), but with a covenant marriage, which is often rooted in religious or moral convictions, the couple must complete premarital counseling with a clergyman or therapist ahead of time. State laws vary, but often one spouse must prove adultery (with photos, videos or witness testimony), physical or sexual abuse, abandonment for more than a year, or imprisonment in order to file for divorce.
And couples who are already married also have the option to upgrade their flimsy modern marriage into something more binding. As I suggested, the absence of this option elsewhere reflects a kind of paternalism: a belief that even when two adults want to commit themselves to something they really can’t take back, they shouldn’t be allowed to, for their own good—or perhaps for the good of society. And frankly, given the seriousness of making a lifelong commitment that you can’t exit (barring provable adultery or physical abuse), I don’t think this is a crazy place to be paternalistic. But I also generally favor more freedom of choice… so I’m not sure where I land—what do you think?
So I've been on all three sides of this, sort of. My parents divorced when I was a kid, and I was devastated by it. That made me strongly anti-divorce. When I met my first husband in my early 20s, I was extremely serious about the whole thing, actually looked into covenant marriages, and probably would have chosen the option if it was available in my state. I was all about wanting the life-long vow.
I was also divorced after just a few years, while I was still in my 20s. And *absolutely desperate* to get away from him. To this day, I still occasionally have nightmares where I'm somehow married to him again. That's the whole nightmare, just him being in my life again, yet it is one of the most terrifying ones I have, where I wake up sweating and screaming. I don't need to belabor details, but the marriage was a nuclear level disaster, and divorcing him was the most profoundly relieving and best thing that ever happened, leading to an immediately huge improvement in my life. We didn't have kids, and I see no reason the state should care in that circumstance. But also, I would have easily qualified for a fault-based divorce, so maybe not so relevant to your question. Though I am glad I did not have to go through the legal process and expense of a litigation proving it. That would have cost tens of thousands of dollars that neither of us had, and I was already in the hole from paying his criminal legal fees and bailing his ass out of jail.
So there's me being 1. Anti-divorce and pro-covenant, and 2. Profoundly thankful for cheap no-faukt divorce. Now I'm in position 3, which is that I remarried years later, to a man that it would be almost impossible to describe how much more suited and better we are together, than the first guy who I barely want to remember or acknowledge. My now-husband also had a very short marriage in his 20s. We are extremely happy, have been together for a decade, and this marriage is without exaggeration easily 50x better than the first. In every way. The first one I often wished that either he or I would just die. This one we argue over who got luckier, and who married up, because we both feel so lucky. Thank God we both got divorced to our youthful spouses.
But also, we are no longer naive, so we have a pre-nup, setting forth exactly what will happen and how things will be divided, if things go wrong in the future. And that's what I favor now. Marriages should be like every other contract: binding and enforceable, but you can terminate with penalties for breach. If you breach or unilaterally terminate without cause, you pay damages. It's pretty simple, and you can get that result with a pre-nup. I think they should be required for everyone, using a check the box form where you can select different penalties and circumstances.
The reasons for breaking a covenant marriages are not sufficient. I never imagined I would have a spouse I had to bail out of jail, or who would wear an ankle bracelet and not be allowed to leave the house. Other people don't imagine their spouse will develop a shopping or gambling addiction, and set decades of hard-earned assets on fire. People get addicted to drugs. They do all kinds of unpredictable shit, and ultimately you cannot control someone else's behavior. Plus people are under the influence of a drug we call "being in love" when they decide to marry. Applying standard contract law principles seems like a simple solution. You can walk away, but without a good reason you'll pay a hefty penalty.
I think freedom of choice gets fuzzy, and perhaps even inverted, when it refers to a freedom to limit your future choices. It certainly doesn't feel like freedom to the future person being constrained.
It's one thing to make a conditional agreement with someone that exposes you to some future consequence if you don't hold up your end of the bargain: "if you file for divorce without cause, you will have to pay XYZ penalty, etc." We can debate what penalties are fair - child support seems fair? - and as you said, that echoes the bankruptcy debates, especially about discharging college loans.
But it's another thing to foreclose a future option entirely. That feels like a different kind of paternalism: is the state (or often, the church) insisting that it - or, past you - knows better than current you about what's best for you? Or that the state/pastor can judge your moral obligations to your spouse better than you can? "You're not allowed to do X unless you present me enough evidence to justify it by my standards" can't hardly be framed as the *less* paternalistic position. How can restricting people from changing their minds and trapping them in unwanted legal arrangements for the rest of their lives be pro-freedom?
To use an extreme example, we don't allow people to voluntarily sell themselves into lifelong slavery: some rights are eternal and cannot be preemptively waived. Maybe who you choose to spend the rest of your life with is one of those.