I see via Rod Dreher that there is a movement afoot in some states to restrict no-fault divorce, on the grounds that easy divorce is undermining marriage. Rod and I disagree about lots of things, but we’re both in agreement that marriage could certainly use some shoring up. The question is, is this a good way to do that?
I can see the appeal of making marriage more difficult to get out of. My brief tour through the divorce literature indicated that ending a high-conflict marriage is better for everyone, including the kids -- despite the financial and emotional drawbacks, it really is better to have two homes, rather than one where Mom and Dad are engaged in a bitter civil war.
On the other hand, the evidence on ending low-conflict marriages -- one in which maybe one party, or both, doesn’t feel perfectly fulfilled, but they get along OK -- wasn’t so happy. Children of low-conflict marriages whose parents divorce have more difficulty adjusting than the kids of high-conflict marriages. It’s thought that the divorce comes as a shock to these kids; a relationship that seemed fine to them suddenly dissolves, which changes their ability to trust the world and other people.
These divorces aren’t necessarily so great for the adults, either. Divorce tends to be a financial disaster for all but the very rich, because it’s more expensive to support two households than one. And people who exit marriages don’t necessarily find this makes them happier. We tend to think that marriages are good, and then they go bad, and then you divorce and get happy again, but unhappiness can often be a temporary condition that later improves.
Some approximation of this insight is what structured divorce laws before the no-fault revolution. You exited marriages in which there was abuse, adultery, abandonment or wild financial irresponsibility, not because you were just sick and tired of being married.
So could we make marriages stronger by making it harder to exit? Keep people together who rush into divorce court instead of waiting out a temporary spell of unhappiness?
Maybe. But we should be cautious about assuming that this would definitely make marriage stronger. As with so many rule changes, it might have the opposite of the intended effect. To see why, consider European labor markets.
Er … what? European labor markets? Weren’t we talking about marriage? Is McArdle getting a bit forgetful in her old age?
Yes, unfortunately, she is; I recently spent 15 minutes trying to remember the name of Kiefer Sutherland. But there is a connection, I swear. Just bear with me.
After World War II, many left-wing European governments wanted to do something about unemployment. As I discuss extensively in my book, unemployment is about the worst thing that can happen to you in a modern democracy, short of death or dismemberment. So they passed laws making it very, very difficult to fire workers. In Italy, for example, a judge could reverse a layoff decision, not because you’d fired the worker unjustly, but because the judge didn’t think you needed to cut staff. Hurrah! Finally, workers were protected from the dark specter of unemployment!
Well, not quite. Workers were thrilled; employers were terrified. Now hiring a worker meant you were stuck with them unless they committed some absolutely flagrant offense -- like, say, emptying the till and running out the door.
That’s a hell of a commitment to make to someone you barely know. So employers didn’t want to hire scary strangers; they wanted to hire close friends and family. Or, better yet, no one at all. Youth unemployment in many of these nations was staggering. The insiders had a great deal, but people without jobs found themselves consigned to a series of temporary, not-very-well-paid contracts. Or the dole.
The lesson is that when you make it harder to exit, you also make people reluctant to enter. If we try to strengthen marriage by clamping down on divorce, we may find that more and more people simply refuse to get married in the first place.
The divorce laws of an earlier era were one part of a complex social institution with mutually reinforcing norms and a fairly elaborate system of punishments and rewards. People were encouraged to stay in marriages because divorce was difficult -- but it is at least as important that divorce was heavily stigmatized. Even more important is the energy society spent encouraging people to get married in the first place -- not just with the gauzy dreams of wedding gowns and perfect babies that help sustain the institution today, but also with a complicated system of carrots and sticks that have now completely vanished. Old maids were stigmatized; women who had babies out of wedlock were shunned. Marriage was the only socially permitted way to cohabit and, for that matter, often the only legal way to do so: Landlords didn’t like renting to people who were shacking up, and hotels that rented to rooms to openly unmarried couples risked being indicted as brothels. On the positive side, getting married often meant a raise for a man, and for both parties, it constituted instant admission to adulthood.
In short, the legal system of yesteryear didn’t have to worry that harsh divorce laws would discourage marriage entirely; any marriages that they did discourage probably shouldn’t have happened. But people would continue to get married, because there wasn’t any viable alternative for the majority of people who wanted to live on their own and raise a family without the neighbors talking -- or calling the vice squad. In the same way that European politicians didn’t have to worry about bad incentives during the immediate postwar boom years, when anyone who could breathe and carry a tool bag could get a job. When the boom weakened, however, the laws intended to shore it up instead kicked out more of the props underneath the job market.
We might well find the same story with no-fault divorce. Even if you accept the premise that marriage needs to be strengthened -- which I do! -- and even if you accept the premise that the state therefore has a right to force people to stay married, which is a bigger stretch, I’m not sure that the state should. As conservatives are fond of noting, societies, like economies, are very complex organic systems. We do not understand them, much less control them with a few simple tweaks.
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