We have seen how no-fault divorce was first introduced in California in 1968, in an attempt at relatively modest reform. The original legislation tried to eliminate the emotionally divisive need to prove that one partner was “at fault” in breaching the marriage covenants. It also added a new justification for granting a divorce: “irretrievable breakdown.”
But in order to preserve society’s interest in — and its ultimate control over — marriage termination, the new law left family court judges with the responsibility to decide whether the marriage was in fact beyond repair. Thus no-fault divorce did not originally give marriage partners the right to simply announce that their marriage was over. Yet the no-fault concept ultimately led to that conclusion.
The 1960s were a time of huge social change, with challenges to state authority that frightened all public leaders from representatives in Congress to school principals and judges. Judges charged with the duty to determine “irretrievable breakdown” found themselves simply unable or unwilling to challenge the claims of people who wanted to get out of their marriages. So within a short time, marriage became essentially terminable at will — first at the will of both parties together and then at the will of only one party.
The state’s willingness to take this approach papered over an ironic misunderstanding about what marriage breakdown really meant — and means. It soon became easy for couples to assume the marriage must be over if the state didn’t resist ending it and for judges to assume the marriage must be over if the couple didn’t resist ending it.
In fact, however:
There is something deceptive about [the phrase “irretrievable breakdown”]. The passive, impersonal structure, the dry legalities of the language, conceal a lie. It suggests that a marriage has an independent organic existence. It exonerates us by portraying us as merely the clinicians pronouncing the body dead. But at what precise point does the breakdown of a marriage become irretrievable? The moment we declare it so, and no sooner. And the marriage doesn’t just break down. We disconnect the life support. While it requires will to make a marriage work, it also requires a quite horrifying act of will to bring one to an end.
This development was influenced by many factors. For one thing, the emphasis on individual rights during the 1960s especially prized “the right to be let alone.” That idea originally focused on being “let alone” from government control of one’s life. But to state-appointed judges, it soon meant deferring to the partner who wanted a divorce rather than to a partner who wanted to help make the marriage succeed.
Togetherness is always harder for courts to enforce than separateness because law, like the proverbial bull in the china closet, is inherently better at pulling (or blowing) things apart than it is at keeping them together.
Another purely coincidental factor was that no-fault auto insurance came on the national scene at about this same time. This concept introduced the idea that accidents simply happen, and courts shouldn’t waste time trying to fix blame for them. Rather, insurance companies should just pay the bills and save the court costs of the blame game.
A failed marriage is hardly like a fender bender, but before long, it was easy to assume, wrongly, that therapy sessions could do for refugees from a divorced family what an auto body shop could do for a wrecked car — repair the damage.
Economic changes also played a role. Over the past several decades, corporations and governments have generally replaced the family as the primary source of economic power and property rights. As part of some evolving patterns about the best way to protect the individual against unfairly losing one’s source of economic sustenance, it is now easier for a married person to divorce a spouse than it is for an employer to fire somebody he hired last month. Not that many years ago, by contrast, divorce was very difficult to justify in court and an employer could terminate an employee at will.
Other general forces of cultural change have also had a heavy impact on the way people came to interpret no-fault divorce. Our society has recently experienced a gradual shift from positive to negative attitudes about the very idea of one person’s “belonging” to another in a marriage or family.
The Cost of Blindness
An anonymous letter to the New Yorker magazine eloquently captured this development. The writer had just attended the funeral of a woman she called Mary Jones. She was a couple of generations younger than Mary and hadn’t known her well, but the nature of Mary’s relationship with her husband had left an indelible impression on the young writer, enough to draw her to the funeral.
Every summer since her childhood she had “watched Robert and Mary Jones walking down the beach to the water for a swim: she a tall, big-boned woman, clearly beautiful when young, a person” of both “character and humor.” Robert was “a small man, distinguished, upright (in spirit and body), cheerfully earnest, energetic.”
The couple were “slightly comical” because of “their difference in size.” They would walk at a leisurely pace, several feet apart, conversing.” Their “conversation ranged from serious discussion to banter,” often “punctuated with laughter; I remember the laughter most vividly. When they reached the water, they would wade in, still talking, losing their balance somewhat on the rocks underfoot, talk some more, and, finally, sink in and swim around a little — in a semi-upright position that allowed them to continue talking. Their enjoyment of each other was arresting — sharp as pepper, golden. I have seen other happy older couples, but” something about Robert and Mary “came to represent to me an essence of human exchange — something indescribably moving and precious, which comes to fruition only toward the end of a lifelong marriage. Whatever that essence is, I find it dazzling. It has always struck me as one of the great possibilities life has to offer.”
Then the writer reflected on the contrast between her image of the Joneses’ marriage and our new age of liberation, which is now “forming the values and governing the lives” of our generation. Not that liberation is all bad: “The spirit of emancipation has also touched deep nerves of truth, has also opened windows on life’s great possibilities.”
Still, she’s troubled not by the principle of liberation but by its “limitations” — “the blind side of our age” and “the cost of the blindness; of a perhaps fatal stupidity intertwined with our [modern] enlightenment.” The “idea of emancipation, after all, has to do with an escape from bonds, not a strengthening of bonds.” Our age of liberation somehow makes relationships into political issues. It focuses on “the individual, not the connection between individuals,” stressing “terms like ‘self-awareness,’ ‘self-fulfillment,’ ‘self-discovery,’ ‘self-determination,’ and ‘self-sufficiency’ — terms that crowd anybody other than the ‘self’ right out of one’s imagination.”
Our generation thinks these attitudes are supposed to help relationships. But “when the relationship — no matter how good — gets in the way of self-fulfillment, it is clear which one has to go.” That’s why it’s not just a coincidence that “more and more people are living alone these days, that more are getting divorced, that fewer are getting married, ” and that, therefore, “there are going to be fewer and fewer Robert and Mary Joneses.”
The writer wanted to hang onto the warmth of Mary’s marriage against the “chill of an unknown future.” What chilled her was a “sense of the transformation of our society from one that strengthens the bonds between people to one that is, at best, indifferent to them; a sense of an inevitable fraying of the net of connections between people at many critical intersections, of which the marital knot is only one. Each fraying accelerates others,” affecting feelings about community, citizenship, and family.
“If one examines these points of disintegration separately,” she continued, “they have a common cause — the overriding value placed on the idea of individual emancipation and fulfillment, in the light of which... the old bonds are seen not as enriching but as confining. We are coming to look upon life as a lone adventure.”
And while there is value in this view, we are “carrying it to such an extreme that,” if we have no Robert or Mary of our own to return to, our life journey may be “rendered pointless by becoming limitless.” And that’s why she “hoarded a small, indirect warmth” at Mary Jones’s funeral — because Mary reminded her that “we give form and meaning” to our “solitary destinies” through “our associations with others.” But as our commitment to these human ties “has been allowed to fade away,” we are left “exposed to a new kind of cold.”
Cold New World
Part of this cold new world is that people are no longer sure what the word family even means. Is family a legal term, a social or political one, or just a matter of personal preference?
As the government has generally “deregulated” marriage, it increasingly leaves the process of family creation and definition to individual preferences. For example, a growing number of state and private agencies now treat unmarried “domestic partnerships” the same as they treat formal marriages for purposes of health insurance and other benefits.
I remember when the idea of extending spousal benefits beyond traditional definitions of the family was first introduced in San Francisco in the late 1970s as a proposal for city employees. An editorial in that open-minded city’s open-minded newspaper thought the idea was preposterous.
But within a short time, delegates to the 1980 White House Conference on the Family came very close to adopting a proposal that would have defined the family as any “two or more persons who share resources, responsibility for decisions, values and goals, and have commitment to one another over time.”
These countercultural ideas really were unthinkable as serious public policies when they were first proposed. I recall the day when Sister Barbara B. Smith, then the general Relief Society president for the Church, called me. She knew that I taught family law, and she wanted to know how the law defined the term family. She explained that this question had become the most divisive issue in a committee meeting for the 1980 White House Conference on the Family, on whose planning board Sister Smith served.
That same divisiveness has only spread its influence in the intervening years.
Psychological Claustrophobia
For some liberated people, even a common family name began to create a kind of psychological claustrophobia. One cartoon a few years back showed a man and woman with their two children standing outside a neighbor’s apartment. The apartment owner had just opened the door. The father said with a smile, “Hi! We’re the new family from next door. I’m Bill Jones, this is Sally Smith, and these are our kids, Beth Townsend and Jason Connally.”
In taking this brief glance back through history, I am struck by the persistent evidence that in many ways, most people in “Mainstreet USA” really didn’t want to lose the marriage plot. To some significant degree, public opinion has simply been carried along by noisy, revolutionary forces and turbulent movements that have swept many individuals and families into their path like so much debris in a flood plain.
Despite a fundamental increase in the public’s tolerance for permissive lifestyle choices, and despite the fact that our runaway interpretation of no-fault divorce has made America the world’s most divorce-prone society, most people aren’t convinced that a “culture of divorce” is really desirable.
It is quite possible — though very ironic — that the current interpretation of no-fault divorce law, the general movement toward emancipation and self-interest, and even today’s confusion about the meaning of family have not resulted from society’s fully conscious choice. As one study found, the no-fault divorce movement “was the product of a limited elite, including academics and lawyers, and of the therapeutic culture... There is reason to speculate that a majority of the public may remain traditional in its concepts of marriage and the family.”