Present law, called No Fault Divorce, is really Unilateral Divorce in which one spouse can force the divorce on an unwilling partner.  And that is what happens in four out of five cases. Marriage Savers[1]proposes a major reform: replace No Fault with Mutual Consent.  If a married couple has children, and no major fault is alleged, such as abuse, adultery or desertion -- they should be allowed to divorce only by Mutual Consent. Given the need of children to be raised by their own mother and father, their parents’ marriage which was entered into willingly by two people should not be allowed to end unless both husband and wife agree.  If a major fault is proven, such as adultery or physical abuse, Mutual Consent would not be required.  If a couple has no children, No Fault Divorce would be allowed, since no offspring would be affected. Therefore, what’s proposed is a limited reform, not a return to the old system in which all divorces were granted only on grounds of fault. Rather, the goal is to give both spouses an equal voice in the future of their relationship, if they are parents of children under 18. 

Why?  Most divorces are not over substantial issues.  One study estimates that severe conflict is present in only 30 percent of the cases.[2]  “Nor do unhappy marriages necessarily stay that way: 86 percent of those who rated their marriage as unhappy in the late eighties and were still married five years later reported that their marriages had become happier,” according to a study reported in The Case for Marriage by Linda Waite and Maggie Gallagher.[3]

As a practical matter, Mutual Consent would spark a negotiating process.  Critics say this would imprison people in an unhappy marriage.  No, it simply gives the person trying to save the marriage bargaining power to save it, if possible. In the days before No Fault, a husband might ask for a divorce but his wife could say, "No, I won't agree to it.  We have two kids.  You made a vow before God `for better for worse.’” He might then reply, "Well, I am in love with my secretary, and I could run off with her, but I am trying to be fair to you. I will give up my equity in the house, and let you have it."  She could reply, "But I do not earn enough to make the mortgage payments.  I could sue you for divorce due to your adultery, but I will not. I am saying, give her up and let's try to heal our marriage by going to Marriage Encounter or a Family Life Weekend.” 

He then has a decision to make ?? whether to give up his lover and work to improve the marriage or offer alimony in addition to the house.  Thus, what would result from Mutual Consent are four major societal gains:

Fewer divorces:  Experts such as John Crouch, J.D. (who is a divorce lawyer), Director of Americans for Divorce Reform and David R. Levy, J.D., President of the Children’s Rights Council, estimate that if Mutual Consent replaced No Fault Divorce, the divorce rate would fall by 30%. Why? “Making marriage a more reliable contract will change the incentives that affect spouses’ behavior and decisions throughout the marriage,” says Crouch.

Fairer divorces:  In the case above, the spouse trying to save the marriage can gain economic advantages through the negotiation process.

Friendlier divorces: People would have to negotiate first, instead of jumping into ugly, expensive courtroom battles. More cases would be resolved by negotiation, collaborative divorce, or mediation, not by judges.  Studies also consistently show that when people make their own decisions in mediation or negotiation, they are less likely to go back to court later to change or enforce the terms of the divorce.

More responsibility: If the terms have to be agreed upon by both parties, greater responsibility will be taken to protect marriage by husbands and wives. Currently people generally decide to divorce before they think hard about all the painful issues the divorce will raise: how the children’s time with both parents, and how the family’s income, property and debt, will be divided.  They end up with results neither spouse wanted. Having to consider those practical decisions as part of the divorce decision will help them see farther ahead, and realize what they’re getting into before it’s too late. Many will conclude that it would be easier to make the marriage work, than to have a successful divorce.

Mutual Consent would give the person who wants to save the marriage a leverage totally missing today. It would provide the “due process” guaranteed by the Constitution. For example, Marriage Savers knows of a case in a New England state, in which a wife who has been carrying on an adulterous affair, has filed for divorce.  The husband, a father of children aged 4, 7 and 9, is willing to forgive her adultery if she gives up the lover.  While he could file for divorce on grounds of adultery, he wants to save the marriage for himself and their children. The law allows unilateral divorce, and he has no leverage in the court to stop the divorce.  If Mutual Consent were required in cases involving children, she could not get divorced without his consent.  She would then have an incentive to give up her affair, and go on a Retrouvaille weekend that restores four out of five marriages. (www.retrouvaille.org).

For hundreds of years, millions of parents did work out their marital differences for the sake of their kids. More will do so in the future, but only if state legislatures replaced No Fault Divorce with Mutual Consent.  Family Courts would cease to be kangaroo courts. If no mother or father can unilaterally divorce the child’s other parent, husbands and wives who pledged to stick together “till death do us part’ will live their vows, often pledged before God.

Why? Children need both a married mother and father. What was entered into by two people, should not be terminated by one spouse acting alone, against the interest of their own children. Government has an interest in the future of children, and they are best protected with the love their married mother and father can offer.

Scores of studies show that children do better if their parents remain married to each other, except in the comparatively few high?conflict divorces. One of the most striking statistics of the many documented in The Case for Marriage is that parental divorce knocks four years off the life expectancy of adult children of divorce, and  "Forty?year?olds from divorced homes were three times as likely to die from all causes as forty?year?olds whose parents stayed married."[4].

Mutual Consent has been introduced in several state legislatures (such as New Mexico, Utah and Virginia), but has not been enacted into law yet.  For example:

                        1. The Virginia bill (2008) provided that unilateral divorce “shall not apply if (1) there are minor children born of the parties born of either party and adopted by the other, or adopted by both parties, and (2) either party files a written objection to the granting of a divorce…”  

                        2.  The Utah bill (2005) provides that a divorce may not be granted on the grounds of irreconcilable differences if:

                        “(a) there are living minor children of the marriage;

                        “(b) the parties have been married ten years or longer; or

                        “(c) one of the spouses contests the action.

                        3.  The New Mexico bill (2003) limits the reliance on incompatibility as grounds for divorce “Unless there is mutual consent based on both parties agreeing that incompatibility exists or the district court funds that domestic abuse…has occurred and has entered an order of protection pursuant to the provisions of that act.

 B. Replace Sole Custody with Shared Parenting

If there is a divorce with children, the law should replace a presumption of Sole Custody with a presumption of Joint Custody or Shared Parenting.  States with the most Joint Custody enjoyed the largest drop of divorce in the 1990's. The evidence:  The states which approved the strongest presumption of Joint Custody are Montana, Kansas, Connecticut, Idaho, Rhode Island, and Alaska. Five of those states also had the largest decline in divorce rates in the 1990’s: Montana, Kansas, Connecticut, Idaho and Alaska. 

                        Why? Attorney David L. Levy, CEO of the Children's Rights Council, says, “If a parent knows that he or she will have to interact with the child's other parent while the child is growing up, there is less incentive to divorce.”

The exact nature of Shared Parenting would be worked out by the husband and wife. It would be a core ingredient of a Mutual Consent Divorce. Shared Parenting would rarely mean 50-50 split of time, but a reasonable split might be closer to two-thirds - one-third. Some form of shared parenting exists in many states, such as Texas which guarantees each parent joint custody with at least one-third of the time with children.  The wife might care for the children during the week, and the father on the weekend.  In some cases, the children would stay in the same house, but the mother or father would take turns moving in and out to care for the children.  There might be an agreement that primary custody with young children, at very early ages, 1-12, the mother might have two-thirds of their time, and 100% in the case of nursing infants. But the primary custody could shift at age 12 to the father who would care for the children during the week.  In both cases, the other parent would see their children at least a third of the time. Sole Custody with one spouse having the children 12-13 out of 14 days – virtually removes millions of fathers from their parenting role.  Moving out-of-state would be prohibited, unless mutually agreed upon. 

No parent who is fit should have less than one-third of the children’s time. John Crouch, J.D., of Americans for Divorce Reform and David L. Levy, J.D., estimate Shared Parenting would push down divorce rates by another 20%. More parents would be responsible mothers and fathers.                         

Summary: If Mutual Consent and Shared Parenting are enacted as a package, a state’s divorce rate could plunge 50% in any state.

Nationally, such reforms, if enacted nationally, would save a half million marriages a year from the divorce and its shattering impact on innocent children.  These two reforms would also save tens of billions of federal and state tax dollars now subsidizing divorce, with no real benefit to children.[5]More important, millions of children would do better in school and would be more likely to mature into responsible adults.  Child support orders would be modified to a two-thirds, one-third split, based on custody.

C.  Set Aside 1% of Welfare (TANF) Funding to Strengthen Marriage

Two of the purposes of the Welfare Reform Law passed by Congress in 1996, relate to marriage:

1. To prevent and reduce the incidence of out-of-wedlock pregnancies

2. To encourage the formation and maintenance of two-parent families

Another goal of welfare reform was to “reduce the dependence of needy parents on government benefits by promoting job preparation, work and marriage.” The result has been a 60% drop in the numbers of families receiving public assistance. Yet the federal law continued to give $16.5 billion in federal TANF funding. Thus the states are getting a $10 billion bonus, of which virtually none has been earmarked for marriage.

An organization called FAMLI (Fatherhood and Marriage Leadership Institute).led by former HHS Deputy Assistant Secretary Chris Gersten, has promoted a “1% Solution Campaign” to win state funding for marriage strengthening programs. Its core idea is to persuade states to set aside 1% of its welfare spending (Temporary Assistance to Needy Families or TANF), for healthy marriage initiatives. Clearly, the states have the money.  A request for a 1% set aside is a very modest goal.

Texas recently passed a law or $15 million to strengthen marriage education.  The Texas Health and Human Services Commission created what it calls “Twogether in Texas,” which is funding a variety of healthy marriage initiatives.  For example, if couples take an 8-hour premarital class that focuses on communication skills, conflict management skills  -- the state waives the normal marriage license fee.  Twelve Regional Intermediaries are funding those free premarital education classes, and other initiatives with s $950,000 per region grant for 18 months, beginning in September 2008.

Utah passed a similar 1% TANF set-aside in 2006 allocating $750,000 for a Utah Healthy Marriage Initiative.  It will fund a public awareness campaign, Marriage Week activities, capacity-building including the formation of local coalitions and research, according to FAMLI. Mississippi has set aside $2 million of TANF funding through a series of sub-grant awards to provide marriage and relationship skills education including parenting skills, financial management and conflict resolution for non-married pregnant women and expectant fathers; pre-marital education and marriage skills training for engaged couples, marriage enhancement and marital skills training for married couples;  divorce reduction programs that teach relationship skills and marriage mentoring programs using married couples as role models and mentors in at-risk communities. Priority is given to low-income families/individuals (income at/ below 200% of poverty.)

 Marriage Savers, the sponsor of this website, has helped the clergy of 223 cities (more than 10,000 pastors and priests) create “Community Marriage Policies”® that have pushed down divorce and cohabitation rates, and raised marriage rates.  How?  We train clergy and couples in healthy marriages to become “ Mentor Couples” to help other couples at five stages of the marital life cycle:

            1.  Prepare couples more thoroughly for marriage, by requiring 4-6 months of preparation that includes taking a premarital inventory, meeting with a trained mentor couple to discuss its results, and to learn skills of resolving conflict.

            2.   Enrich existing marriages with a low-cost annual retreat at the church, using an inventory, videos, or speakers.

            3.   Restore marriages in crisis by training "back-from-the-brink" couples whose own marriages once nearly failed, to mentor those in current crisis, saving four of five troubled marriages.
     
            4. Reconcile the separated with a workbook course that a person trying to save his/her marriage takes with a person of the same gender over 12 week, to grow so much that the errant spouse is attracted back in more than half the cases.

            5. Help stepfamilies be successful, by creating a Stepfamily Support Group that can save four of five marriages that normally divorce at a 70% rate.

An independent study by the Institute for Research and Evaluation of the first 114 Community Marriage Policies that were signed by 2000 reported that divorces fell 17.5% in seven years, on average.[6]  That was nearly double the 9.4% drop of divorces in very similar control cities/counties.  While the difference is modest, it was enough to save between 31,000 and 50,000 marriages that would have ended in divorce. (Some cities such as Austin, El Paso, Salem, OR and Kansas City, KS slashed divorce rates in half.) With seven more years and twice as many (223) CMPs, perhaps 100,000 divorces were averted. The Institute also reported that cohabitation fell to a level one-third lower than control cities.  Finally, marriage rates rise in CMP cities, though not for several years. In Evansville, IN from 1998-2004, the divorce rate fell 20% and the marriage rate rose 16%.

Thus, a solid case can be made that a 1% set aside of TANF funds could reduce divorce rates by a fifth over a decade, cut cohabitation by a third, and raise marriage rates.