“Conservatives aren’t just fighting same-sex marriage. They’re also trying to stop divorce.” That’s the title of a recent, much-discussed op-ed in the Washington Post by Scott Keyes. I am responding as a political progressive who believes that we can do more with public policy to prevent unnecessary divorces without reverting to the era when spouses would lie about each other’s misdeeds in order to get a fault-based divorce.
Keyes’ main argument is that when couples come to a decision to end their marriage, the state’s only job is to help them get an equitable and efficient divorce. Waiting periods and requirements for education about reconciliation constitute an unreasonable and potentially harmful burden. Let people get on their lives without putting obstacles in their way or trying to get them to change their minds.
The problem with this argument is that it doesn’t fit what we know about divorce. First of all, thirty years of research have shown that only infrequently do both parties want the divorce. Generally one spouse is pushing for the breakup, while the other who wants to stay married. Quick divorce-on-demand favors the one who wants out, leaving little opportunity for the other spouse to make adjustments to see if the marriage can be salvaged.
Second, Keyes assumes that people have all their rational faculties at work when they file for divorce. Research and everyday observation attest that this is one of the great crisis periods in people’s lives. Work in the field of behavioral economics offers a theoretical rationale for the common-sense psychology behind cooling off periods for major life decisions like entering or leaving a marriage. People in “hot states” of emotion are prone to make costly decisions based on systematic errors, particularly in areas of life they do not have a lot of experience with (divorce decisions among them). In particular, people are prone to overestimate the short-term benefits of taking action and underestimate the likelihood that they will feel better in the future if they hang on.
A substantial number of parents in the divorce process believe that restoring their marriage is still possible.
The third problem with the divorce-on-demand argument is the assumption that people have abandoned hope for their marriage and just want to get the divorce over with. My own research, originally requested by a family court judge, has shown that a substantial number of parents in the divorce process believe that restoring their marriage is still possible, and many are interested in services to help them reconcile their marriage. We surveyed 2,484 divorcing parents, asking whether they believed their marriage could still be saved with hard work, and about whether they would seriously consider reconciliation services if they were made available. About one of four individual parents indicated some belief that their marriage could still be saved, and in about one in nine couples both partners did. As for reconciliation services, about three in ten individual parents indicated potential interest, and among couples, about one in three had one partner interested but not the other. In over 10 percent of couples, both partners indicated some degree of interest reconciliation services.
The fact that most study participants were nearing the end of the divorce process suggested to us the possibility that the proportion of couples open to reconciliation might be even higher at the outset of the divorce process. Subsequent data collection from divorce lawyers’ offices has found that only half of clients at the first consultation have ruled out the possibility of saving their marriage. We have now created a protocol for lawyers and mediators to look for “divorce ambivalence” in clients and make referrals when couples might benefit from a new service we’ve created called discernment counseling. Discernment counseling helps couples considering divorce develop clarity and confidence about their decision based on a better understanding of what has happened to the marriage and the potential for reconciliation.
Of course, Keyes could still claim that it’s paternalistic for the state to use waiting periods and other measures to protect people from their own ambivalence or mistakes. Interestingly, some legal scholars who generally view cooling off periods as anti-democratic, such as former Yale Law School dean Anthony Kronman, see divorce situations as an exception because speed is usually not a major concern and because of the potential for clouded judgment. Divorcing couples with minor children also have other stakeholders in their decision who have a special interest that the decision be thoughtful and not rushed.
As for pragmatic concerns, in states with waiting periods, couples are not left in limbo during the waiting period; they work out the terms of their separation on their own or with assistance from lawyers or the courts while they wait for their divorce to become final. No one has produced any evidence that couples in states with waiting periods are disadvantaged in comparison with those in non-waiting period states. I am aware of no movements to eliminate waiting periods in states that have them. Keyes is raising hypothetical arguments about harm.
Polling consistently shows that more than half of Americans favor more speed bumps on the road to divorce.
In addition to modest waiting periods, a case can also be made for mandating education about the potential for reconciling the marriage, given research evidence about the large number of divorcing people who still hold hope for their marriage. An example of a brief, feasible form of education is a 12-minute reconciliation module I developed for Children in Between Online, a leading evidence-based course on coparenting for divorcing couples. The module, which is also available as a free standalone for the general public, presents research-based information about divorce decision-making, asks parents to self-assess their interest in reconciliation, and offers perspectives and resources based on their self-assessment. Contrary to what skeptics expect about negative reactions to such a reconciliation message, Children in Between creator and director Don Gordon reports that parents have responded positively to the module. It seems that most divorcing people are open to reasonable policies and programs aimed at helping them make sure their decision to divorce is well-grounded.
Keyes implies that only social conservatives would favor policies that stand in the way of immediate divorce. But if waiting periods are a conservative plot to trap people in bad marriages, why did the “blue” state of New York institute an uncontroversial six-month waiting period several years ago when it revamped its divorce system and became the last state to adopt no-fault divorce? The answer is that the divorce reformers and legislators thought it was reasonable to have a short cooling off period before a divorce becomes final. And Hillary Clinton, no conservative favorite, has argued that “divorce should be more difficult when you have children…making it a little harder, a little longer for people who have children to divorce.” Slowing down the divorce process is just good public policy.
And most Americans recognize this. Polling consistently shows that more than half of Americans favor more speed bumps on the road to divorce, especially for couples with children. An example is a CBS News poll in 2010 that reported “a majority of Americans (53 percent) thinks getting a divorce is too easy and should be made more difficult to obtain than it is now, while one in four Americans thinks getting a divorce should be made easier. These numbers are similar to those found in polls conducted by the University of Chicago over the past 20 years.” Modest, common-sense divorce reform is something all Americans can support.
William J. Doherty, Ph.D., is a professor and Director of the Minnesota Couples on the Brink Project at the University of Minnesota. He recently cofounded The Doherty Relationship Institute with his daughter Elizabeth Doherty Thomas to disseminate protocols for helping couples dealing with difficult divorce decisions (www.dohertyrelationshipinstitute.com).