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February 29, 2012

The Myth of Easy Divorce

In yesterday's Perspective and History post, the Blog Princess asked what freedoms (or perhaps more accurately, "whose freedoms") conservatives were willing to give up to return to a supposedly simpler time. My dear friend and intrepid debating partner Grim was quick to reply. His number one choice? Easy divorce. I responded (infuriatingly, if predictably) with more questions:

Is divorce ever "easy"? In this case, it seems you would like to make it harder for other people to get out of their marriages. While I personally don't think much of divorce, I also don't think much of the idea that making it harder for people to leave unhappy marriages would do anything to shore up the state of marriage.

Looking at historical divorce rates supports this notion. Starting in 1960 (LONG before no fault), the divorce rate goes exponential. You can't blame "easy" divorce because divorce wasn't easy back then. So how would making divorce harder change things?

Grim responded by asking about a long ago post in which I explored the idea (which, by the way, I agreed with before I looked at the data) that no fault divorce is a major driver of the divorce rate. It's a powerful and emotionally seductive idea because we would really like for there to be simple answers to complex and troubling questions. If we could just identify that single cause, we could turn back the clock.

The argument goes something like this. Back in the golden age of marriage, it was hard to get a divorce. Then no fault came along and suddenly, as though a light switch had been flipped, the divorce rate went through the roof. If we got rid of no fault, things would go back to the way they used to be.

There's just one problem with this argument. As I pointed out in my earlier post, the facts don't support it:

This conclusion (i.e., there's no real evidence that no fault divorce increased the divorce rate) has strong empirical support in actual divorce rate data over time. If no fault divorce laws incent more women to leave their marriages, shouldn't we see an increase in divorce rates following the advent of no fault? Unfortunately for The Futurist, that's not what happened. Watch what happens to the divorce rate as no fault divorce becomes more prevalent:

divorce rate1.jpg

Note that before no fault, divorce rates were already rising rapidly. And note what happens to the divorce rate after no fault: it goes down, not up. How inconveeeeeenient.

Now let's look at divorce rates over a longer time period:


Again, note that the steepest rate of increase in divorces occurs during time periods before no fault existed. Beginning with the passage of no fault laws in ONE state - California - and continuing as no fault spreads to 9 states and then to 48 of the 50 states, the slope of the divorce rate curve decreases and then goes negative (i.e., the divorce rate declines).

Moreover, if we extrapolate the long term trend for divorce rates, we find that present rates of divorce are entirely consonant with what statisticians would have predicted long before feminism or no fault came along to harsh the collective mellows of so-called beta males. Not a good sign for The Futurist's argument.

A frequent tactic of the simple/single cause supporter is to truncate long term historical trends, notably beginning with an unrepresentative period for marriages and divorces in the US: the 1950s. I'm not sure whether this is deliberate or simply lazy but there's no denying that the practice conveniently airbrushes away over a century of steadily and rapidly rising divorce rates.

The myth of easy divorce is usually accompanied by another popular myth: that alimony and child support create powerful incentives for women to leave their marriages. Once again, the facts don't bear this theory out. Over time, the proportion of divorces in which the woman initiated divorce proceedings has been remarkably stable - it varies between 60-70 percent.

... let's look at some actual divorce data from a comprehensive study of 46,000 divorce cases. You may be surprised about the conclusion it draws on the question of why women file for divorce more often than men:

The solution to the mystery, the factor that determined most cases, turned out to be the question of child custody. Women are much more willing to split up because -- unlike men -- they typically do not fear losing custody of the children. Instead, a divorce often enables them to gain control over the children.

"The question of custody absolutely swamps all the other variables," Dr. Brinig said. "Children are the most important asset in a marriage, and the partner who expects to get sole custody is by far the most likely to file for divorce."

THE correlation with custody is so strong, Dr. Brinig said, that she has changed her view about the best way to preserve marriages and protect children. She previously advocated an end to quick no-fault divorces, but she now believes that the key is to rewrite custody laws.

That's right, it's not the expectation of financial gain - nor the ease of no fault - but custody. Moreover, preferential treatment of women in child custody cases is not a recent invention, nor is it tied to no fault. In fact, the rebuttable presumption that the mother is the best custodial parent has always been a strong component of divorce settlements in traditional fault ground states.

Here's another great quote from the Brinig research:

In most states, including New York, New Jersey, and Connecticut, mothers can fight for and usually win sole custody. But some states have recently begun making joint custody the presumptive norm. That change in the law seems to be keeping more couples together, according to this study and other work by Dr. Brinig. She and colleagues have noted a decline in divorce in states with joint-custody laws. And when couples do divorce, fathers who share custody are less likely to renege on their child-support payments.

This is why I've always favored presumptive joint custody. To put a final nail in the coffin of the simple/single theory of divorce, there's this nugget:

Researchers who have interviewed divorcing couples have repeatedly found that, in cases where the divorce is not mutually desired, women are more than twice as likely to be the ones who want out. After the split, women are typically happier than their exes.

Though I've been happily married for over 30 years, my own experience suggests that this makes sense. When my husband and I argue, he is able to compartmentalize his feelings and go about his business.

That's never been the case with me: I am completely, utterly miserable until the dispute has been resolved and we're back in harmony with each other. Decades of talking with other married women suggest I'm not alone in this. There's a lot of misinformation about divorces out there. Did you know that 95% of divorces are uncontested (even though they could be?).

I didn't either.

Posted by Cassandra at February 29, 2012 06:53 AM

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So are you implying that child custody law changed in the early 1960's causing the upswing in divorce? I'm rather of the impression that "no fault divorce" is symptomatic of the issue rather than causal. Given there was a whole lot of social and cultural change going on in the '60's, I'm more inclined to look to those factors.

Posted by: Pogue at February 29, 2012 09:20 AM

No, I think it's more likely that child custody laws changed waaaaaaay back in the 1800s. Back then, custody was usually awarded to the father.

Women who left their marriages had almost no legal rights whatsoever, and yet clearly they did leave their marriages in increasing numbers starting 150 years ago.

Like you, I think there are multiple cultural (and possibly economic - let's not forget that a woman who can support herself has less to fear from divorce) reasons for declining marriage/increasing divorce. I don't believe in the single/simple cause.

Posted by: Cassandra at February 29, 2012 09:26 AM

If this is the piece I was thinking of, I am mis-remembering it badly: I have a clear memory of us discussing some other reform that preceded no-fault. However, I can't recall the name of it, and this piece (if it is the piece) doesn't mention such a thing.

It's alarming to run up against a cognitive failure as large as this, if this is indeed the only piece you've written on the subject. Still, it's good you listened to our pleas to leave the old site up! I knew it would be useful to be able to reference those old discussions.

Posted by: Grim at February 29, 2012 10:18 AM

Well, I don't know if it's the only piece I've written on no fault, but it's certainly the only one I *remember* having written!

According to MT, I have written well over 2000 posts. I know that's not the right number because it doesn't reflect a whole lot of posts I deleted during one of my hiatuses (is that a word?) that somehow never made it back up to the site. Or the several thousand I wrote over at Jet Noise.

I don't recall doing other research wrt no fault but that doesn't mean I didn't do it :) Alternatively, you may be recalling something written by someone else. I frequently have trouble remembering where in the heck I read something interesting. Drives me nuts!

Posted by: Cassandra at February 29, 2012 10:23 AM

I'd like to say that the one thing I'm absolutely sure of is that it was your post: your style is inimitable, and I generally take a particular pleasure in our discussions that is not easy to forget.

Of course, since I may be quite wrong about the details of the argument, I'm not sure how much confidence to repose in my certainty that it was your argument. Still, for what it's worth, I do feel certain. :)

Posted by: Grim at February 29, 2012 10:27 AM

I'm inclined to trust your memory over mine. The only related thing I recall was something about the history of custody laws, but I thought that was in the comments to a post.

Posted by: Cassandra at February 29, 2012 10:43 AM

Perhaps then, maybe a solution would be that the spouse leaving the family be the one leaving the familiy?

That is, if you are the one that wants to leave, you leave the children behind. You don't get to kick the other spouse out without good cause.

Posted by: Yu-Ain Gonnano at February 29, 2012 11:11 AM

Well, in any case, the reason it was my #1 item is that I've been thinking about the issue of the collapse of the family a lot lately, due to the fact that it's been an item of discussion in many places; and because what I thought I remembered from your research was that it would be necessary to go back beyond no-fault to reform even earlier laws. That suggested a substantial legislative undertaking; but it could be worthwhile if it could shore up the collapsing family structure, given all the harm that comes from it.

If I am misremembering that, then changing the law may not be worthwhile. Or perhaps it is custody law that must be changed, if that's at the back of all this; though I'm not sure how to change it, since the custody of the children ought to be decided on the interests of the children alone. (Of course, since the best thing for the children -- in the absence of a physically abusive parent -- would be for the couple to suck it up and remain married, perhaps the judge might be empowered to order that in many cases; but that is something I haven't thought all the way through.)

Posted by: Grim at February 29, 2012 11:12 AM

I am not entirely sure that changing the law would produce the intended effect. I do think presumptive joint custody is worth trying for its own sake, but I also (and here I may well get myself into trouble) have grave concerns about unintended consequences.

In most households to this day, the father simply does not get involved in child care to the degree the mother does. This is not to say that no fathers can be primary caregivers. I don't believe that is true.

My oldest son is an excellent father and would (I think) do fine with full custody in the unhappy event of a divorce. But when I look at the divorcing couples I've known, I can't think of a single one - not one! - where the father was involved with the kids on a day to day basis during the marriage.

Again, that's not to say no Dads are because I know several like that. But these Dads were in healthy marriages.

A woman in a physically or emotionally abusive marriage would be extremely unlikely to leave if she had to leave her kids behind and I've seen how hard it is to fight those battles in court. I think it's probably a mistake to make policy based on the assumption that people behave the same in good and bad marriages. There's a reason a lot of marriages fail.

During the early years of our marriage I knew quite a few women who went through divorces. Only one was a friend, and she divorced because her husband was a maintenance alcoholic who turned into a jerk when he drank. He was not a bad guy, and since he hid his drinking, she was the only one who experienced the fallout.

I would not have stayed in that marriage either. He stopped even trying after she worked with him for a long time. In the end, she didn't want their son to grow up in a home watching that kind of dysfunction and I think she did the right thing.

It eventually came out that he had a problem, but at the time no one believed her. It was agonizing. I certainly don't think leaving him with the child would have been a good thing. He showed no willingness to be a father until his son was nearly grown up. By that time, there was a lot of scar tissue.

Posted by: Cassandra at February 29, 2012 12:10 PM

That is, if you are the one that wants to leave, you leave the children behind. You don't get to kick the other spouse out without good cause.

My parents used to joke that what kept them together is they agreed that whoever left had to TAKE the children.

I don't like any form of presumptive custody. To assume the mother is more involved in child care is just that. An assumption. I am certain it is mostly true. But not always, and I hear horror stories from divorced dads. But the plural of anecdote is not "data", so I'm willing to pass on that. But I think if a court cannot be bothered to do even the most cursory investigation (through witness testimony, CPS, etc) then awarding custody should probably be taken out of the courts' hands. The mother shouldn't be the default, the father shouldn't be the default, joint custody shouldn't be the default. The default OUGHT to be trying to determine who is the more fit parent in the event of contested custody. I think if two divorcing adults can work out how custody should be handled between them, then the court OUGHT to rubber stamp it. After all, if they agree to joint custody, chances are, there's not an abusive spouse there. Otherwise there's no chance in hell the other wouldn't fight.

Divorce isn't something to take lightly. I agree. Fact is, I wouldn't be married to my wife without it. Her ex wasn't abusive. He didn't cheat on her. He didn't even really do anything particularly egregious to her (nor she to him, in fact). The problem was, he didn't do anything. He refused to keep a job. Refused to try to find a job. And he even lied to her for two weeks that he HAD a job, and she was dropping him off and picking him up daily from "work" that for him involved waiting eight hours in the same spot. She gave him the combined savings, kept the house and all the debt and in exchange, he left and granted her a no fault divorce. It's hard for ME to be upset at divorce. But I can see that it's hardly an unalloyed good.

Posted by: MikeD at February 29, 2012 01:50 PM

The New American Divide by Charles Murray speaks on divorce as more of a degree vs non-degree issue.
Excerpt from James Taranto in the WSJ.

The Food and Drug Administration approved the pill for contraceptive use in 1960. Over the next half-century, the marriage rate declined and the illegitimacy rate skyrocketed, Charles Murray notes in a recent Wall Street Journal essay adapted from his new book:

In 1960, extremely high proportions of whites in both Belmont [Murray's metaphor for the upper middle class] and Fishtown [the working class] were married—94% in Belmont and 84% in Fishtown. In the 1970s, those percentages declined about equally in both places. Then came the great divergence. In Belmont, marriage stabilized during the mid-1980s, standing at 83% in 2010. In Fishtown, however, marriage continued to slide; as of 2010, a minority (just 48%) were married. The gap in marriage between Belmont and Fishtown grew to 35 percentage points, from just 10. . . .

In 1960, just 2% of all white births were nonmarital. When we first started recording the education level of mothers in 1970, 6% of births to white women with no more than a high-school education—women, that is, with a Fishtown education--were out of wedlock. By 2008, 44% were nonmarital. Among the college-educated women of Belmont, less than 6% of all births were out of wedlock as of 2008, up from 1% in 1970.


Posted by: Russ at February 29, 2012 03:03 PM

The New American Divide by Charles Murray speaks on divorce as more of a degree vs non-degree issue.

I find Murray's thesis interesting but also wonder whether (again) we're looking at the chicken or the egg? In other words, are educated people more likely to stay married because they're educated, or are people who are able to delay instant gratification and visualize the future more likely to marry AND get degrees?

I suspect it's the latter and that we're looking at a self-selecting sample. So what explains the fact that more working class folks are divorcing?

If all else fails, blame birth control:

The Food and Drug Administration approved the pill for contraceptive use in 1960. Over the next half-century, the marriage rate declined and the illegitimacy rate skyrocketed, Charles Murray notes in a recent Wall Street Journal essay adapted from his new book:

This is about as classic an example as one can find of a post hoc logical fallacy. I'm sure many things happened around 1960. Why single out birth control?

Is there any evidence that it was birth control and not some other cause? No, not that I've seen. But for some odd reason, conservative male bloggers and pundits seem downright obsessed with the notion that (depending on the day and their mood) feminism, birth control, or "letting" women get degrees or work is responsible for the death of Western civ :p

If they can pony up some actual information (aside from a sloppy and unsupported post hoc argument) then I'm all ears. My natural inclination is to believe that women are tremendously important in the formation and maintenance of families. But there's that pesky "educated women are the ones staying married" issue to deal with. Maybe affluence allows these women to get the help they need around the house so they're not exhausted all the time.

I have argued for years that unless the women can bring in a good salary, families are usually better off with one stay at home parent. Before I got my degree, I was rarely able to clear enough money to make working profitable. I worked from home often and that meant no child care expenses, but I did the math and we lived better on one salary with me managing our finances.

So I'm not hostile to the idea of traditional gender roles: I *lived* them for 2 decades.

What DOES really chap my derriere is the poorly reasoned, poorly supported finger pointing I see so much of. Taranto in particular has been on a real tear lately about feminism, birth control, and working women. Supposedly these things have caused everything that's wrong with America to be wrong.

It's kind of funny. My husband's grandmother worked full time. My best friend's mom worked when we were in school. My grandmothers both had college degrees and worked. And all had stable families. I agree with Murray that culture/values is why this worked.

How come you never hear these folks railing on about the Internet or pop culture or pornography? All of these influences have played a huge role in the erosion of traditional values. I would argue they have played a huge role in the declining willingness to do the hard work of marriage.

I deeply mistrust folks with easy answers (usually, "Blame him/her!") to complex questions. I suspect Murray is onto something with his culture argument, but most of the commentary I've seen on his book smacks of raging confirmation bias.

Posted by: Cassandra at February 29, 2012 04:03 PM

"I find Murray's thesis interesting but also wonder whether (again) we're looking at the chicken or the egg? In other words, are educated people more likely to stay married because they're educated, or are people who are able to delay instant gratification and visualize the future more likely to marry AND get degrees?"

I would say you are on to something.

Posted by: Russ at February 29, 2012 08:30 PM