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Reform No Fault Divorce: An Economic Stimulus?

By Mike McManus


            Michigan’s sky-high 14.6% unemployment rate has prompted state leaders to look for the next Henry Ford who can create an industry to put people back to work. If he exists, he’s in the Silicon Valley, not Michigan. 

But there is an unconventional way for Michigan to put thousands back to work: Cut the divorce rate in half, reducing the annual number filing for divorce from 35.450 to 17,725. 

Every divorce is the destruction of a small civilization.  Divorced people do not create new businesses.  They are trying to survive in two households with attorney fees on the same income that supported one household, without attorney fees. With 600 divorces for every 1,000 marriages, Michigan has the highest divorce rate in the Midwest.  Illinois, for example, has only 440 divorces per 1,000 marriages, and its jobless rate is much lower.

However, every marriage is the builder of civilization. Children thrive only in households with their own married mother and father. Married people are happier, healthier, wealthier, live longer and have more sex and better sex. Marriage is also an economic engine, a job creator. How does a mechanic create an auto repair business?  He depends on his wife’s income to help him get started.  Similarly, a woman can begun a hair salon, if supported by her husband.

            In November I made a speech at a Dallas WallBuilders conference proposing two ways that states like Michigan could cut their divorce rates in half: 


            1.  Require that any divorcing couple live apart for a year, if the divorce is mutually agreed upon, and two years if contested.  That is the law of my home state of Maryland, plus Illinois and Pennsylvania.  The divorce rate of these states (2.6 divorces per 1,000 people) is half that of ten “Hot Head States” like Michigan which require a Zero period of living apart (AK, KY, MS, ID, WY, TN, FL, NM, NH, OR), whose divorce rate averages 5.1 per 1,000. These states allow an angry spouse for divorce immediately.  In MD, IL and PA, the longer separation period gives times for hot heads to cool down, and for couples to reconcile.  (These three states have an average jobless rate of 9.1%, well below MI’s 14.6% and even the nation’s 9.7%.)


            2.  Reform No Fault Divorce in cases involving children to require the written consent of both parents, unless a major fault is proven, repeated adultery, serious physical abuse, abandonment.  No Fault Divorce is really Unilateral Divorce, forced by one spouse on another even though it is opposed in four out of five cases by their mate. “By giving the spouse who wants to save the marriage an equal voice with an unhappy mate, many marriages could be restored, perhaps saving most of them,” says Catholic Bishop Gerald Gettelfinger.

            After offering these suggestions in my PowerPoint presentation, Michigan State Sen. Alan Cropsey introduced himself and was complimentary.  I asked him, “How much does Michigan spend on social services?” he pulled a card out and replied, “$4.4 billion.” 

            “According to the Heritage Foundation, half of that is due to divorce, $2.2 billion,” I responded.  “Less than 1% of married women are in poverty, but 24% of divorced women are poor. That makes them eligible for welfare, Medicaid, housing and day care subsidies, etc. If you cut the state’s divorce rate in half, you’d be saving $1.1 billion of taxpayer funds.”

            “Golly, we have an $800 million budget deficit,” he replied. Bingo!

            On the opening day of the Legislature, Jan 13, 2010, Sen. Cropsey, who is Michigan’s Senate Majority Floor Leader, the #2 leader of the Senate, invited me and Dr, Michael Ross and Jay Fedewa, of the Family Rights Coalition of Michigan, to outline our answers to a group of eight state senators and the aides of another half dozen.  I noted that Heritage estimates the taxpayer cost of every divorce at $20,000 per year. 

            “If you cut your divorce rate in half, saving 17,750 marriages from divorce, you would save $355 million in Year One, $710 million in Year Two, as another 17,750 divorces are avoided, and $1 billion in Year Three. The savings grow with each year.”  After my 20 minute presentation, Michigan’s senators asked questions for an hour.


Michigan No Fault Reform Proposed & Attacked


In February, Sen. Michelle McManus (a marvelous name! but no relation), the Deputy Majority Floor Leader, #3 leader of the Senate, introduced a bill, SB 1127, that would replace No Fault Divorce for couples with children with Mutual Consent, unless one spouse proved the other is guilty of a major fault, such as adultery, physical abuse or abandonment.

            The on line Michigan Messenger mistakenly charged: “Under the McManus  bill those seeking divorce would be required to allege specific problems such as adultery, physical abuse, imprisonment…”


No.  The bill would not require proving of fault, but ask couples with minor children agree on divorce, unless one proved the other guilty of adultery, abuse, etc.  Childless couples and those with adult children, 44% of all marriages, could still get a No Fault Divorce. 


How many might be saved?  Most of them.   In four out of five marriages one spouse opposes the divorce, but can’t stop it because No Fault Divorce allows one person to force the divorce.  In perhaps 20 percent of cases, the couples would agree to divorce.  Most of the rest could be saved.  Paul Amato of Penn State reports, “Just 30 percent of divorcing spouses reported more than two serious quarrels in the past month.”  One spouse is simply unhappy in the marriage.


The other spouse, however, is happy and is open to changes.  Evidence?  About 4,000 Detroit couples on the verge of divorce, attended a weekend retreat called Retrouvaille, that saves four of five of marriages, report its leaders, Mark and Betty Squier. 


Hundreds of studies agree that children are best brought up by both parents.  Children of divorce are three times more likely than those with married parents to be expelled from school or to get pregnant as a teenager, are five times as apt to live in poverty, six times as likely to commit suicide. .Also, a divorced woman will live four years less than a married one, and a divorced man, 10 years less. 


Nevertheless, divorce attorneys are stoutly opposed.  Michael Robbins, a “Matrimonial Lawyer,” says “You can’t legislate morality and you can’t force people to stay together if they don’t want to stay together.” 


That’s misguided!  All laws are intended to “legislate morality,” like those punishing thieves and murderers.  Without jail sentences there would be more robberies and murders.   No Fault Divorce law is immoral; it encourages quickie divorce.  The law should promote marriage preservation, not its destruction.


An Economic Development Strategy?


Unemployment is expected to remain near 10 percent through 2010.  Clearly, an economic stimulus is needed.  But how can the nation afford more deficit spending with a $1.5 trillion deficit this year and an expected $1.7 trillion next year? It can’t. 

The deficit must be reduced.  Fortunately, that can be done even as the economy is given a much needed stimulus.  How? By cutting America’s divorce rate in half.

            If 500,000 marriages of the 1 million expected to end in divorce each year were restored,  there would be fewer single parent families asking for public assistance, food stamps, Medicaid, housing and day care subsidies, the Earned Income Tax Credit, etc. And the private cost of setting up two households would be eliminated, while saving thousands in legal fees.

            One study by the Institute for American Values, “The Taxpayer Costs of Divorce and Unwed Childbearing,” conservatively estimated the public cost at $112 billion.[i]  It notes that less than 1% of married women and children are in poverty, while 24% of the divorced are poor. The 2008 report estimated that “a mere 1% reduction in rates of family fragmentation would save taxpayers $1.12 billion annually.”  Therefore, a 50% reduction in the divorce rate would save taxpayers $55 billion.

            The Institute acknowledges its estimates are low because they do not include the $40 billion Earned Income Tax Credit nor school programs for the poor, such as No Child Left Behind (@ $24 billion).  And only 8.7% of the cost of justice programs are included, though two-thirds of those in prison are from fragmented families. A more comprehensive estimate by Robert Rector and Christine Kim of the Heritage Foundation, estimated the public cost of 13 million single parent families at $260 billion in FY2004.[ii]  With six more years and a recession, the current figure is probably $300 billion. The study, “Fiscal Distribution of Single-Parent Families in the United States, FY2004,” estimates that half of these families (50.2%) were either divorced or separated, which now costs taxpayers $150 billion a year. Thus, if the divorce rate could be cut in half, the public savings would be $75 billion a year.

How can divorce rates be cut in half?

            First, answer this question.  Why is America's divorce rate two to seven times those of Canada and European countries?

           As Andrew Cherlin documents in his recent book, The Marriage-Go-Round, 23 percent of American couples separate or divorce after five years.  Compare that with the 10-12 percent of couples who divorced in five years in Canada, Austria, Finland, West Germany and Sweden; only 8 percent of the French or British; and a mere 3-5 percent of Italians, Belgians and Spanish.


First Reform: Require Two Years of Separation

      Cherlin writes, "In no other country is the waiting period for a No-Fault Divorce so short," as in America.  Germans must live separately for three years if one spouse does not want the divorce, five years in Britain and six in France.

      Such laws grant couples time to reconcile. Clearly, they work.

      By contrast, there is NO minimum time of separation in 32 states, such as Tennessee, Michigan, Florida, Mississippi, Kentucky, Idaho and Wyoming, according to John Crouch of Americans for Divorce Reform.  These states have “hot head laws” that favor the angry spouse, those who want a divorce immediately.  Why shouldn't state laws encourage reconciliation? Every study shows permanent marriages benefit men, women and especially children.   For example, a married woman will live four years longer than the divorced, and a married man, ten years longer!  Children of divorce live four years less.

“Hot head states” have divorce rates that are double those of Maryland, Illinois and Pennsylvania where couples must live apart two years, if a No-Fault Divorce is contested.[iii] Therefore, it is reasonable to assume that if states with no time requirement, such as MS, ID, FL, KY, WY, TN, NM, NH, and OR adopted a law like Maryland’s, in which a spouse seeking a No-Fault Divorce must live separately for a year, and two years, if the divorce is contested -- they could cut their divorce rates in half.     


Second Reform: Modify No-Fault Divorce

       Alternatively, states could cut divorce rates in half by reforming No-Fault Divorce laws. Few seem to realize that in four out of five divorces, one spouse does not want a divorce, according to an earlier book by Cherlin, Divided Families, co-authored with Frank Furstenberg. Yet spouses who oppose divorce are legally powerless to stop it in 49 states with No Fault Divorce. (NY is the exception.) No Fault should be called Unilateral Divorce.  Why should a contract that was willingly entered into by two people, be terminated by one spouse acting unilaterally? That is unfair and even unconstitutional. Both the 5th and 14th Amendments guarantee that “No person shall be deprived of life, liberty or property, without due process of law.” How can there be “due process” if the person opposing the divorce always loses?

Therefore, I propose that in cases involving minor children, that a father or mother would have to get the written permission of their spouse to obtain a divorce, if they cannot prove their spouse is guilty of one of the three A’s – adultery, abandonment or abuse.  I wrote a short book,  calling for a reform that would replace No Fault with Mutual Consent in cases involving young children, How to Cut America’s Divorce Rate in Half: A Strategy Every State Should Adopt.[iv].  I quoted Divorce Attorney John Crouch as saying, that by requiring Mutual Consent in cases of minor children, "The law would guide people to postpone the divorce decision until they had worked out the details of how the divorce would actually work. A large proportion of divorces would be settled out of court.  Divorces would be fairer to both parties with less legal fees. I believe it could reduce divorce rates as much as 50 percent. Changing the rules about ending a marriage would prevent a lot of marriages from breaking down in the first place. They would not only influence the decision to divorce, but the behavior and choices that lead to divorce."

          The consensus of both legal and religious leaders that divorce rates could be cut in

 half prompted me to write the book, If divorce rates were cut in half, each year 500,000 children would not experience a parental divorce. In an endorsement, AFA Chairman Don Wildmon called this proposal “revolutionary and absolutely unprecedented. It would save millions of marriages and stabilize American families, giving kids a much better start in life.  I can’t think of any reform that could make America a better place.”  These were not just kind words.  AFA bought 1,000 copies of the book, making it available to his AFA state affiliates. Similarly, Family Research Council President Tony Perkins wrote, “The first step in strengthening the family is reforming no-fault divorce. Mike McManus’ latest work provides a strategy to reform this broken system.”  FRC also bought 1,000 copies, which prompted the Florida Family Policy Council and the Wisconsin Family Council to invite me to speak at state legislative breakfasts.


            John Stemberger, President of the Florida FPC, suggested that I change the name of the reform from Mutual Consent to “Modified No Fault,” which sounded more politically palatable. He said, “In your proposal, No Fault would remain unchanged in cases of childless couples or those with adult children. You are only trying to change No Fault in cases of minor children. It is “Modified No Fault.”  I readily agreed to that title, but he was still unable to get any state senator to introduce the bill. Nor has a bill been introduced in Wisconsin.


            Why? “Modified No Fault collides head-on with America’s worship of Personal Autonomy,” he told conservative state legislators gathered in Dallas recently by WallBuilders.


            Michigan’s unemployment rate of 14.6% is the nation’s highest.  More than any other state, it needs a way to close a budget deficit.  However, there are ten states in precarious economic positions, any of which could benefit fiscally from a plunge in the divorce rate.


            Do you think it is too easy to get divorced?  Do you think the state law should be on the side of hot heads who want an instant divorce, or should the time of separation be stretched out for two years if the divorce is contested, so that there is time for reconciliation? Do you think that the parent of young children, who is most committed to the marriage, should have an equal voice with the unhappy mate who wants a divorce?


            Are you one of the 35 million Americans since 1970 who was forced into a divorce you did not want?  Or are you one of their 42 million kids who experienced the pain of a parental divorce?  Would you like to see the law changed to protect spouses and children who believe couples should work out their differences for the sake of their children and each other?


            Are you worried about the mounting federal and state budget deficits?  Would you like to see a saving of federal and state funds due to divorce that ranges between $55 billion and $75 billion, depending on which study you think is more credible?


            Call your state legislator or state senator and ask that they consider the two reforms outlined here, either of which might cut your state divorce rate in half:


            1.  Require that those seeking a divorce live apart for a year, and two years, if the divorce is contested by their spouse.


            2.  Require that in cases of minor children, that both parents would have to agree in writing to the divorce, unless one can prove the other guilty of adultery, physicial abuse, etc.


            However, there are two major obstacles to these reforms.  First, at present, no constituents are asking state legislators to reform the law.  Those who got a divorce they did not want, blame their ex-.  They are unaware of their state’s unjust law that allows Unilateral Divorce.  Second, state Judiciary Committees who would consider such a law, are often composed of 100% attorneys, who, if they are not profiting from divorce, have colleagues who are.


            What can be done? 


Consider the case of Mothers Against Drunk Driving.  Its founder, Candy Lightener, who lost a daughter to a drunk driver, could not get her California legislature, to raise the age at which liquor could be sold from 18 to 21.  Therefore, she convinced a Congressman to attach an amendment to the Federal Highway Appropriations Law to reduce federal funding by 10% to any state which did not pass state legislation to raise the age of liquor sales to minors to 21. 


            Every state raised the legal drinking age to 21.  None lost any federal funds. MADD employed the same tactic in 2000 to push states to define drunk driving as having a Blood Alcohol Content at .08 BAC, when most states were at 1.0 or even 1.5, as in Massachusetts.


            Result: the number of drunk driving deaths plunged from 30,000 a year to 13,000.


            Why not follow MADD’s example, and ask the Federal Government to reduce the Federal Welfare Reform Surplus by 10%, unless states enact No Fault Divorce Reform? When Congress passed Welfare Reform in 1996, the governors insisted on one provision.  If states reduced their welfare rolls  by putting welfare recipients to work, that the Federal funding of public assistance would not drop below its then level of $16.5 billion.  Welfare rolls are down by 61%, giving states a $10 billion “Welfare Reform Surplus” that can be spent on anything.


            Washington could withhold $1 billion of the surplus, until each state enacted laws to give both parents of young children a voice on divorce. Doubtless, as in the MADD example, no state would lose a dollar.


            But a half million kids would not experience their parents divorce each year – 5 million children in a decade!  And the federal and state budget deficits would fall by $55 billion to $75 billion.


            A worthwhile cause for families, children, and a healthy society!


[i] Benjamin Scafidi, “The Taxpayer Costs of Divorce and Unwed Childbearing,” Institute for American Values, Institute for Marriage and Public Policy, Georgia Family Council, Families Northwest, 2008, New York.


[ii] Robert Rector, Christine Kim, “Fiscal Distribution of Single-Parent Families in the United States, FY2004,” 2007, The Heritage Foundation, Washington DC.


[iii] In 2006, the divorce rate averaged 5 divorces per thousand in WY, ID, KY, FL, MS, NM, NH, OR and TN, states with a zero required period of separation before divorce.  However in the three states which required 2 years of separation if the divorce is contested, MD, PA and IL, the divorce rate was 2.6 per thousand, half that of the “hot head states.”

[iv] Mike McManus, How to Cut America’s Divorce Rate in Half: A Strategy Every State Should Adopt. Foreword by Gov. Mike Huckabee, Marriage Savers, 2008.