Stolen Vows

The Illusion of No-Fault Divorce and
The Rise of the American Divorce Industry

Stolen Vows - Chapter 2 - Marriage Is a Promise

“A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” — Student Edition of Restatement of the Law of Contracts, American Law Institute, 1933.

My interest in divorce evolved as an offshoot of my interest in ‘family’. From my own experience as a child, I’d recognized the important influence of family life on individual family members. The death of my mother when I was eight years old had left a deep scar on my psyche. Her subsequent replacement, when my father re-married, brought its own set of problems. My stepmother turned out to be an angry and critical presence in our home, never filling the chasm left by the loss of my mother.

I also had become more aware of the role played in society by healthy families. Children deprived of the essential resources needed in childhood — like love and praise — struggle harder to achieve happiness and cannot contribute in ways that others can who are less handicapped.

My desire to learn more about the reciprocal roles played by family and society motivated my return to graduate school, and I entered the Family Studies program in Madison. The course work provided a good overview. Classes on the challenges confronting contemporary family life, emphasized some of its darker sides — alcoholism and abuse. Throughout the program, the word ‘marriage’ was not very prominent. Instead, ‘family’ was the term-of-choice used to encompass the relationships created by blood and legal ties. Classes emphasized the parent-child relationship, particularly the challenges of the single parent. The importance of the role of marriage seemed secondary.

I was not sure how I would use a degree from this program but I had an instinctual sense that I was on the right track preparing for my calling. Ironically, in all of my classes, the term ‘mediation’ never was mentioned. Also missing was anything about ‘family law’ and its impact on individuals and society. But, this program, with its concentrated focus on the meaning and importance of ‘family’, served me well and prepared me for the work I would eventually discover.

I did not hear anything about divorce mediation until I was out of school. Then, I saw a news story about how its use in court cases was growing. In particular, couples going through a divorce in Wisconsin were encouraged to use mediation to resolve their differences about their ‘child custody’ decisions. Mediation was a burgeoning new field that was gaining prominence because of its use to resolve disputes outside the courtroom. I was immediately drawn to the underlying concept in mediation — that people who were given some help with talking to each other, could resolve their difficulties on their own. I believed that such conflicts were more about not hearing one another — or not understanding what was being said. Providing a third party who was trained to facilitate the communication process, seemed like a good idea. I saw the mediator’s role as both a ‘translator’ and peacekeeper — that they could help with deciphering the meaning in the messages while safeguarding the space where the meeting was held. I believed in the mediation process, even though I did not have any first-hand experience with its actual practice. In fact, I did not get the chance to work with a mentor before beginning the work. The first case assigned to me was a sink-or-swim experience, but luckily, I swam.

Finding out about the training requirements to qualify for court-assigned cases was no easy task. Although the use of mediation had become mandatory in child custody disputes, this fact was still not well-known nor very well-received. My own experience of locating the training resulted in a dozen phone calls before I finally found it. The University Extension program had cobbled together a class in order to meet the law’s hastily implemented requirement for training. A mere 25 hours of classroom training was required to be qualified to receive cases from the local judges, so I quickly completed it.

After finishing the training, I began meeting with couples sent by the judge to take part in the one required session of mediation. I worked as an independent contractor, having to locate a meeting space in an already overcrowded courthouse, which sometimes meant jostling with attorneys for the conference rooms.

The disputes these couples brought to mediation were about where their kids would live — during and after the divorce. Most of the time, both spouses wanted ‘primary placement’ — which meant the kids would live mostly with one of them and the other parent would be more like a visitor. Child support payments also came along with ‘primary placement’ and this fact added more ‘charge’ to the decision-making. In some cases, both parents agreed to ‘shared placement’ and a more cooperative arrangement.

The issue of ‘placement’ had to be resolved before the divorce could be finalized. If the parents were not able to agree on an arrangement, the judge would then assign a third attorney to represent the interests of the child/children.

The couples facing these anguishing decisions were under a great deal of pressure since the divorce was already underway. There was no place in the process devoted to the question of whether or not the divorce should take place — or whether repairs might be made to the marital relationship. In Wisconsin, the law permitted one party to request a ninety-day extension — in order to attempt reconciliation. But, judges did not like to grant such an extension if it was not agreed to by both parties.

The devastating effects that divorce had on the children was an issue that was conveniently overlooked. Classes were offered to divorcing parents to help them deal with the reality of divorce, but classes stayed away from presenting anything about the increased risks that children-of-divorce face. Classes were also available for children, in order to help them adjust to the divorce. ‘Best interests of the child’ was a legal term that was supposed to guide the decisions made about the children. But, no one ever addressed the simple truth that mending the marriage served the highest of all ‘best interests’. This idea was conveniently overlooked as arguments about ‘placement’ proceeded.

Some of the estranged spouses with whom I worked, managed to agree to a post-divorce arrangement for their children because they wanted to avoid further lawyer-involvement.

A few of them even found their way out of their difficulties and were able to put the marriage back together. Watching these couples move towards reconciliation was a deeply rewarding experience for me. But, sometimes these meetings brought out the worst in them, revealing the cruel patterns of behavior that had brought them to this point. The hardened hearts and stubborn resistance I witnessed sometimes left me drained and frustrated. Some couples even directed their anger at me, because they didn’t know where else to put the blame for their predicament. Re-directing anger at a third party — called transference — is one way to avoid making the changes needed to solve personal problems.

During these encounters, I would question my belief in mediation — and my choice of work. But seeing the healed relationships that sometimes emerged motivated me to keep going.

The cases sent to me were the hardest of all. These were couples with minor children and the court required them to submit a plan before the judge would sign the divorce decree. Spouses would agree to their own plan or the courts would do the job for them. Offspring of the marriage had to be handled in much the same way that other ‘property’ is handled — through a ‘settlement agreement’.

Most couples had conflicting feelings about their divorce-dilemma and some spouses even objected to the divorce. But, the contemporary view of troubled marriages was that divorce was the remedy — for at least one of the spouses. No other remedy was offered to them unless they sought it on their own. There was no ‘Hospital for the Broken Hearted’. And judges would not require counseling. It was just not done. A divorce was considered unstoppable — according to the rules in place — and lawyers often pressed their clients into understanding that fact. A spouse who wanted to reconcile was hard-pressed to find a lawyer who would help them with that goal. There was no legal tool — other than a request for a ninety-day delay in order to try to affect reconciliation — that could be used to defend a marriage from divorce. It was just not done because most understood it would be a waste of time and money.

When an unhappy spouse seeks a divorce and shows up at the lawyer’s office, the first step is to pay a fee-in-advance to cover the costs of the anticipated work to complete the divorce process. This advance-payment is like a security deposit which, essentially, guarantees the end-product. By paying up front the spouse who wants out can be assured of the final outcome.

But, most of the time, only one of the spouses is pursuing the divorce and the other spouse — the one who receives the ‘surprise’ at their workplace when they are served the divorce papers — is on the receiving end of the divorce.

Since the inception of no-fault divorce, there is little legal recourse for the spouse on the receiving end — once the paperwork has been set in motion. Some use procedural delay to buy time but — in the end — the divorce to its final conclusion unless the spouse who filed goes through a change-of-heart.

Some states — including Wisconsin — at one time, included a ‘marital assessment’ within the divorce process. Couples were required to see a counselor before the divorce could proceed. But Wisconsin, and most other states, have discarded such delays and divorces now move forward as the settlement-work is completed. The result is that — instead of seriously scrutinizing whether there is any chance of reconciliation — the court sees the marriage as ‘over’ — unless one of the spouses resists. When there is such resistance, the judge must then make a ruling about the Breakdown of the marriage after he makes a cursory inquiry that is totally without substance. In reality, the judge’s role should be seen as akin to that of a doctor, whose job is to determine whether an ‘accident victim’ is still alive, using the appropriate protocol. Right now, for marriage, there is none.

Doctors have standards to use when determining when a person is dead. But the standards used for declaring a marriage ‘dead’ lacks any real substance and a judge can now reach such a conclusion without going through any checklist or doing an examination. Merely taking the word of the one who wants the divorce is all that is required to declare the marriage is broken. The other spouse’s pleas for help are ignored. Worst of all, advances made in ‘relationship medicine’ are completely disregarded. Judges will not suggest or prescribe them nor will they inquire about whether anything was even attempted before the divorce was filed. This is like withholding life-saving treatment from an accident victim and sending them off in a body bag.

The book, Your Marriage and the Law, although written in 1952 before no-fault divorce laws were enacted, provides wisdom that is relevant in today’s no-fault climate. The following story illustrates how we miss the mark by allowing divorce-on-demand and explains why we should care.

The nurse stepped briskly into the surgeon’s office. “There’s a man outside who says he’s got a ruptured appendix,” she said.

The doctor looked up briefly from the scalpels he was polishing. “How does he know?” he asked.

“He says he’s got a pain in his right side.”

“Can he prove it?” asked the doctor.

“Yup. He’s got two witnesses with him who testify that he’s swooned, holding his side, a couple of times.”

“Okay,” said the doctor, picking up his scalpel, “I guess it is his appendix. Get him on the operating table and I’ll take it out,”

Half an hour later, after having removed the appendix, the doctor returned to his office to work on a monograph which he was preparing for presentation at the state medical convention on “Peritonitis: a Threat to the American Way of Life.” Since his schedule was rather tight, he never saw the patient for a check-up after the surgery. In fact, there was no reason why he should have; he considered his job finished when he had taken the last stitch in the wound.

The foregoing, of course, is completely hypothetical, bearing no relation to anything likely to happen to you in your doctor’s office. Unfortunately, it’s a pretty accurate picture of how our divorce courts operate in performing what should be our most delicate kind of emotional and social surgery. No doctor will rely on a patient’s self-diagnosis, backed up by the enthusiastic agreement of the patient’s friends. He will examine the patient and look for other possible physical and psychological factors which might explain the patient’s pain. He may prescribe medication, diet, exercise or other appropriate remedies short of surgery. If an operation is necessary, he will prepare the patient for it and see the patient after it is over so that he may gauge the effects of his treatment, prescribe aftercare and know better whether he should treat the next patient with a similar ailment by the same or different methods.

Divorce courts should function with respect to ailing marriages in much the same way that a doctor functions in regard to an ailing patient. For the most part, they don’t. They are not equipped so to function. Chiefly they exist to put the rubber stamp of state approval on arrangements made by the parties. At least 85 per cent of the divorces granted by the courts of this country are uncontested. This means, in effect, that the parties decide what “grounds” they will use for dissolving their marriage and what the setup will be after the divorce — financially and with respect to the custody of the children. All the court has to do — actually all it has the power to do in most states — is say okay.1

The authors’ statement is still an accurate assessment of the problem, even though the laws have changed. The arrangements made by the parties is still true in cases where the divorce is by mutual agreement, but in other cases, it is the judge’s finding of Irretrievable Breakdown that ends the marriage — without any investigation into the facts. The story criticizes the process of fifty years ago. The change to no-fault was supposed to help families. But instead, things got even worse for families.

The authors go on to explain why this third person — the judge acting for the state — is given this role.

In terms of legal theory, of course, the state is an actively interested third party in every marriage. For this reason, a marriage, while it is a contract, differs in one vital respect from all other contracts. If Tom Adams contracts to work for Bob White for five years, and Adams and White decide one afternoon over a friendly drink that the arrangement isn’t working out as they had hoped, they are perfectly free to tear up the contract, shake hands and go their separate ways, Not so with the marriage contract, at least as far as legal forms are concerned. Society asserts an interest in every marriage and must approve its dissolution. This interest results, as the lawmen put it, in marriage being a status as well as a contract.2

A less tangible but probably more important reason for the state’s concern with the dissolution of marriages is the belief generally held in democracies that society is a chain and that each family constitutes one of the links that together make up the chain. If the links are not individually strong — if marriages are not holding together — then the very foundations of the state itself are threatened. This belief became entrenched at a time when the family was, far more than it is today, the basic unit of society — economically as well as socially and psychologically. Great-grandpa and great-grandma may have hated each other violently after a few years of marriage, but the chances are that they stayed married anyway. A far larger percentage of our population lived on farms than they do now, and on farms particularly the wife was an essential part of her husband’s ability to earn a living. If she did not churn butter, milk the cows, look after the chickens, and do a hundred other jobs, the money which her husband would have had to spend to hire some one to do her work would probably have eaten up the profits of the crop.3

While the authors make an important point about marriage as both a ‘status’ and a ‘contract’, all that now remains is marriage as a ‘status’. In 1972, the California case, Walton vs. Walton, dismissed the contractual nature of marriage — marriage vows no longer constituted a contract.4 The ‘state’ could intervene in its role of protecting the health, safety, morals, and general well being of the people. The Walton case produced a precedent-setting decision that cleared the way for judges to ‘force’ divorces where one spouse wanted to stay married. Any serious inquiry into the viability of the marriage was left out of the equation. By being able to end a marriage without any inquiry, the meaning in the marriage vows had essentially been stolen from the bride and groom who had made them.

There is no other situation where the right to enter into a contract has been so seriously impaired. Marriage is supposed to be protected as a ‘public good’ but, instead, marriage was further devalued by the change in the law that took away its protections. The ones who did this were the ones who were supposed to be protecting us.

The divorce process in most states now begins with ‘settlement’ decisions. The first meeting, called a temporary hearing, is where decisions are made about children and finances. In most states, the process does not start with an inquiry into the ‘facts’ of the marriage — whether it can be salvaged or who caused the damage.

In Wisconsin, the question asked at the final court hearing is the sole standard for granting the divorce: “Do you think this marriage is irretrievably broken?” The judge must get an answer to this question from both parties, and if the answer is “No” from one of them, then the judge must rule on this matter — in order to meet the letter of the law.

Sitting in the courtroom and watching the process can be heart-rending but also can provide a valuable education. While working as a mediator, I also became a court-watcher because I wanted to know about the rest of the divorce process. The laws and the legal process had not been taught in mediation training but I was learning how it worked by watching — and I was beginning to sense that something was not quite right.

One thing I learned as I was educating myself is that Wisconsin law requires each county to have a Family Court Counselor. This person is supposed to act like a gatekeeper for couples and assist them in accessing what they needed. But my county conveniently ignores this rule. A buffer does not exist between the ‘law’ and people’s needs.

Another rule that is ignored mandates the courts to provide information about services to families going through divorce — such as listings of marriage counselors in the area or programs they might need. But, few counties provides such help. The clerks who staff the courts feel they are already overworked and, in fact, most judges don’t ask them to do it. Stemming the flow of divorce casualties is not their job.

The noncompliance in my county — as in most other counties — of laws that were added to try to reduce the divorce rate, is an example of the lack of will to change the attitudes and practices that are firmly embedded in the court culture — a culture of divorce.

Matters-of-the-heart do not belong in the hands of lawyers or of judges. If, indeed, these professionals have a role, it would be to determine whether or not the marriage ‘contract’ had been upheld — but by eliminating the contract-quality of marriage, there no longer is such a role for them. And the vested interests of those in the law profession appear to be diametrically opposed to solutions other than divorce. Primarily their role is to remove the obstacles to the divorce and get the best settlement for their client.

By ignoring certain rules and operating in a culture of divorce, the courts provide little help to families in despair.

* * * * *

Marriage is a promise we make — to love, honor, and take care of each other for the rest of our days. At least, those are the words we say — those are the vows. But, something happened that had a profound impact on those words.

Over thirty years ago, the meaning was stolen and how this happened is the story told here. But, because the picture in this story is so hard to see — because it is hidden behind an illusion that clouds our perception — we need help. Hans Christian Anderson’s morality tale — The Emperor’s New Clothes — is a vehicle that can help us find our way though the illusion that has held us spellbound for too long.

Chapter Endnotes

1. Pilpel & Zavin, 275.

2. Pilpel & Zavin, 276.

3. Pilpel & Zavin, 277.

4. Walton v. Walton, Court of Appeal, Fourth District, Division Two, 1972. 28 Cal.App.3d 108, 104 Cal. Rptr. 472.