damnum absque injuria

February 8, 2011

Family Law Is FUBAR, Part 1: Chains of Love Act

Filed under:   by Xrlq @ 9:13 pm

One fundamental problem with family law over the years, particularly here in the Bible belt, is the paternalistic notion that family law should aim to keep the divorce rate low, rather than accepting divorce as a reality and trying to smooth the process as much as possible when it happens. The theory seems to be that happy, perfectly functional marriages end abruptly because one partner wakes up on the wrong side of the bed one day and gets a divorce on a whim. Of course few if any couples actually divorce that way. Getting married on a whim, that’s another matter, so if we really are going to go the paternalistic route, perhaps we should stop worrying about the divorce rate, as such, and worry instead about the crappy-marriage rate that feeds into it. As Clemmons dentist Kirk Turner infamously told his late wife Jennifer, there is “more than one way to end a marriage,” only one of which impacts that dreaded divorce rate. So if we’re going to play the paternalism card, we should do so with an aim to prevent bad marriages from happening in the first place.

Needless to say, few states adopt this brand of paternalism at the front end. Individuals don’t (when was the last time you stood up and objected at a wedding when the preacher invited you to?) so it should come as no surprise that democratically elected governments don’t, either. Per About.com, no state requires couples to wait more than five days to marry after applying for a marriage license, and only six (Alabama, Kansas, Massachusetts, Nebraska, Texas and Wisconsin) even limit one’s ability to remarry within the first six months following a divorce. By contrast, North Carolina requires a full year of physical separation before either party can even file for divorce, and another month or two after that before a divorce will actually be granted. Despite this, our divorce rate has held steady at 4.5 per 1,000 in 2001 and 4.4 in 2004, well above the national average in both years. More recently, our rate has increased even as the national rate declined. While inter-state comparisons are always tricky, it seems clear that our long waiting period for divorces is certainly not helping matters, and may even make the marriage failure rate worse.

While lengthy waiting periods do little or nothing to prevent divorce, it does plenty to make the process uglier and more expensive than it needs to be. Not only does requiring one spouse to move out create an unnecessary financial burden for both in the short term, it also sets up the spouse who doesn’t move to cry “abandonment,” which should be irrelevant in a no-fault environment but which does wonders to privilege the spouse who drove the other away over the one who had the cojones to leave. The law shouldn’t favor either spouse over the other. Whoever files has to pay the filing fee, and in return, they get to choose the venue (if more than one is available) and most importantly, they get the warm and fuzzy feeling of having filed an official court document stating that they hereby “complain of” the estranged spouse who for years has been complaining of them. That’s the only difference it ought to make.

5 Responses to “Family Law Is FUBAR, Part 1: Chains of Love Act”

  1. J. Tyler Ballance Says:

    If you want to make the divorce process, “fair” stop rewarding the female with half of the husband’s assets and pension. Make it a rebutable presumption that physical assets acquired during the married years will be divided proportionally by the earnings of the husband and wife and any pensions acquired would be retained by the person who earned said pension, while all assets acquired prior to marriage revert to the original owner.

    Another point is accountability of child support received. States have many forms of retribution to use against those who fall behind in payments, but only Missouri has a provision where the person receiving child support can be asked to account for how the money was spent. We already have a tax form to document payments for a nanny or day care, so it would be a practical matter to insist that, on the annual tax form, that child support would be documented as having actually been spent for the children, instead of for the mother’s drug habit.

  2. Heartless Libertarian Says:

    What would the NC divorce rate be if you removed all the military personnel assigned to Fort Bragg, Camp Lejeune, and Pope and Seymour Johnson AFBs? (along with any others I may have forgotten)

    The military has always had a higher divorce rate, and the GWOT has made it worse, especially for the Army. NC happens to have two of the largest installations in the country. (I think Ft Hood is the only one bigger, in terms of personnel, not including the Pentagon.)

  3. Xrlq Says:

    Good question. Ideally, military should be excluded from these stats, or at least limited to those who hail from the state in question and didn’t just happen to get stationed there. I recall reading somewhere that the divorce rate was up in Charlotte, which is nowhere near any of these bases.

  4. Jim Says:

    Your argument regarding divorce and applying the filter to marriage instead is probably right.

    But it does not address (even though you do elsewhere) the fact that in almost all cases divorce and tax law favors and incentivizes women, especially if they have children. One wonders what the divorce rate would be without those incentives.

  5. Baby bath tub Says:

    @Jim,

    I completely and utterly agree with your view point- government incentives to women with children plays a vital role in these awful statistics- increased in divorce rate.

    Perhaps divorce rate would fall if these incentives are withdrawn. Then the oat “better for worse” should have a true and concise meaning in the real world.

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