Yeah, no shit people don't approve of this

[trinityvixen]

So this woman is out to save marriage from divorce in Oklahoma. This may be an unpopular thing to say, but I applaud her for at least having the courage of her convictions and going full-on with the crazy and not being a hypocrite. See, she really does think gays are a threat to marriage. And she sat a good long time and thought, "Gee, you know what else is a threat to marriage?"

Et voila, she has something she wants done about divorce. Not that she intends to be any less batshit, rights-denying, human-hating about this than she is about gay marriage. This woman wants you married, goddamnit, and you will stay that way, so help her GOD...

Her rules would basically make it impossible for all but childless couples and those who get married at Vegas chapels on drunken binges (are you listening, Britney Spears?) to get divorced. You couldn't divorce for "incompatibility" if you'd been married for ten years or more (because every thing that might happen to you to change your personality has only a ten-year window in which to happen which opens right after you get married and nothing good/bad/major will ever happen to you or your spouse after that window is closed). You also can't divorce for "incompatibility" if you have minor children, which means that unless you were living in sin with the partner with whom you had children until those children were 6-7-8 years of age, HA HA NO DIVORCE FOR YOU. I suppose that's one way to keep an eye on those people of ill repute who would dare to birth bastards in this day and age. (That's probably her next suggestion: finding a way to declare certain kinds of children legally illegitimate in a country with no royalty.)

You also can't object to a divorce on "incompatibility" grounds if the other person objects. Would love to be in that Divorce Court. ("Your Honor, we're clearly incompatible! He wants a divorce and I don't! Er, wait...") It's the kind of logical conundrum that would kill off our Robot Overlords.

The non-funny side to this is that a person who is not outright abusive or unfaithful could trap you in a marriage basically forever by refusing to divorce you. Two things about that: 1) No one should ever have that power over you again, which is why divorce exists at all. 2) If this whole thing were to pass, that person could hold you until such time as you hit the big Tin/Aluminium Anniversary and became ineligible. (Ooh, did this Rep. know that the traditional presents for that anniversary are so...tarnishable?) ::shudders at the thought::

No fault divorce! The three best words in the English language!

Comments

[edgehopper.livejournal.com]

This reform goes too far, but why should marriage be less binding than a contract?

If you start working for a private biotech company and sign a noncompete agreement with them, and 12 years later you get tired of working for the company and want to go elsewhere, you're stuck with the contract. You can try to negotiate your way out of the contract if the company will let you, but mere unhappiness won't save you. This isn't the case with no fault divorce in pretty much all states--even in New York, where fault is required to get the divorce but doesn't go to asset division, child custody, and child support.

My preferred reform is to just say that a marriage is a contract, and should be treated as such. You want out of the contract without good cause, fine--but you're in breach, and you'll pay through the nose for it (or if you're the lower-earning party, you'll walk away with nothing).

[chuckro.livejournal.com]

What interest does that state have in making people miserable?

If you need to be legally bound to have, hold, love, honor and cherish, then you are in a sham of a marriage anyway, because you can't truly do any of those things if you don't want to.

[trinityvixen.livejournal.com]

I addressed some of this myself. For me, legally binding marriages are usually of the sort that are either religious or of monetary gain. In the first case, even being miserable, a person finds other fulfillment/commandment in staying married. In the latter case, the marriage is already underwritten with enough pre-nups that making divorce tougher on other people wouldn't change what happens in this case at all. The lawyers would just work around it.

[edgehopper.livejournal.com]

None--but the state does have an interest in holding people to their legal commitments, of which marriage is one.

Obvious example, and the dominant one: Most marriages today (and almost all marriages prior to feminism) are based on a division of labor; one party is primarily responsible for household upkeep and childrearing, and the other is primarily responsible for bringing in income. There's a clear bargain here; the party staying at home taking care of kids gives up income and income potential, while the party working knows that his/her family is well taken care of. When a party breaches the contract, it hurts the other party. If the stay at home parent leaves for no reason, the working party shouldn't be penalized in child custody. If the working party leaves for no reason, the stay at home parent is utterly economically screwed.

The argument has nothing to do with love, and everything to do with family economics.

[trinityvixen.livejournal.com]

Seems to me a working parent loses out on child care regardless of whether the stay-at-home parent leaves or stays. Child care doesn't pay for itself.

Also: is this not a better argument for ending division-of-labor marriage than it is for preventing divorce? Or, rather, improving child care support so parents don't have to make such a choice?

[edgehopper.livejournal.com]

Seems to me a working parent loses out on child care regardless of whether the stay-at-home parent leaves or stays. Child care doesn't pay for itself.

Yes, that too. I'd expect the party at fault to pay for whatever aspect of child care he/she would have otherwise paid for.

is this not a better argument for ending division-of-labor marriage than it is for preventing divorce? Or, rather, improving child care support so parents don't have to make such a choice?

It's also an argument for ponies, unicorns, free health care for all, and an unlimited supply of gold. You can get rid of extreme cases (though lots of people want such divisions of labor), but there will be some division of labor in every marriage that's not between two clones. So sayeth the laws of economics.

[trinityvixen.livejournal.com]

Yes, that too. I'd expect the party at fault to pay for whatever aspect of child care he/she would have otherwise paid for

...this is still advocating forced marriage, per all my commentary on your increasingly uncomfortable statements supporting it as such. What you're saying is that wanting a divorce makes you the party "at fault." You say this isn't about ethical violations, but saying someone is "at fault" means they were wrong. That they wronged somebody. Forget the child care issue, you're basically saying that divorce is akin to harming someone. And that if you want to go through with it, that makes you the bad guy. And you're going to pay.

So it's to be coercion to stay married? That's better, is it?

[edgehopper.livejournal.com]

Fault is the legal term, if you prefer, use "the party in breach".

And marriage is no more forced than a mortgage. It's an agreement (in the case of marriage, with no termination date--in the case of a mortgage, usually with a ~30 year termination date) that you enter into freely, but that you then can't break without suffering the consequences. It's no more inhuman to hold someone to one agreement than the other; a bedrock of society is that people are supposed to abide by their agreements.

[trinityvixen.livejournal.com]

It's no more inhuman to hold someone to one agreement than the other

The hell it isn't. If you can't tell the difference, no, if you don't see a difference between a financial institution and its investment and two people getting married, I'm done with this conversation. People aren't banks. End of of story.

[edgehopper.livejournal.com]

Obviously people aren't banks. One should have a greater commitment to one's spouse than one's bank. That's kind of the point.

[ivy03.livejournal.com]

I actually agree with you on this point! Wow. Common ground.

[chuckro.livejournal.com]

Marriages may be "based on" division of labor, but that's not a contract, that's an agreement. Jethrien and I don't have a contract, written or verbal, regarding our marriage. New Jersey required only that we be in our right minds, not related, and not married to anyone else. The Roman Catholic Church only required we swear to love, honor and cherish each other. At no point did any authoritative body give us a list of fiscal/economic requirements--we don't have to live together, share funds, or file taxes together, we simply have the option of doing so.

If you chose to make yourself economically dependant on someone else, you open yourself to certain risks. In marriage, like in many other circumstances, you can attempt to formalize this contract to reduce those risks (say, by pre-nuptial agreement) or not. That, in turn, is typically a matter of trust. If I loan you a video game, I trust that you'll give it back, I don't make you sign anything. If I take on breadwinner duties while Jethrien raises children, she trusts that I will make good on my side of the bargain. She's taking a risk, but she feels, through knowledge of my character, that that risk is worthwhile.

But there's a big difference between a "betrayal of trust" and a legal "breach of contract"--the former can easily arise purely from misunderstanding, for instance, because no one bothered to spell out the exact terms of agreement and assumptions were made. (Legal systems cannot function with that kind of ambiguity, that's why contracts run hundreds of pages.)

Maybe we do need a system of consistantly-updated marriage contracts that define financial roles and expectations, along with child care and the like. I'm sure that would keep a lot of lawyers in business. But absent that, I think we have to accept that some people will put too much trust in the wrong person, and they'll get hurt because of it, and that's just what happens.

[edgehopper.livejournal.com]

Jethrien and I don't have a contract, written or verbal, regarding our marriage. New Jersey required only that we be in our right minds, not related, and not married to anyone else. The Roman Catholic Church only required we swear to love, honor and cherish each other. At no point did any authoritative body give us a list of fiscal/economic requirements--we don't have to live together, share funds, or file taxes together, we simply have the option of doing so.

But should you get divorced, New Jersey will happily determine that you in fact did create a whole bunch of financial obligations, and will impose alimony in accordance with the standard of living enjoyed during marriage. So when you write,

If I take on breadwinner duties while Jethrien raises children, she trusts that I will make good on my side of the bargain.

Under current law, she'd be supported by more than mere "trust"; family law would require you to continue to make good on your side of the bargain after a divorce--regardless of the reasons for the divorce. That's my problem with the status quo; it imposes only the financial responsibilities of marriage and does so in a way that bears no relation to the other responsibilities of marriage. I'd prefer a system that either recognized that all of the responsibilities matter, or one that doesn't enforce any of them and leaves it up to private parties (say, a marriage licensing/registration system that only exists to determine those government benefits and privileges that come with the relationship).

[chuckro.livejournal.com]

I'm not arguing that there aren't serious problems with the current family court system--there are. I'm just saying that approaching marriage as if there were a firm and defined contract (when there is none) doesn't improve anything. Do I think that alimony laws are often archaic and child custody cases are often badly handled? Yes. Do I think that making divorce more difficult will solve them and many other related issues? No.

I think "a marriage licensing/registration system that only exists to determine those government benefits and privileges that come with the relationship" would be great for married couples (of any combination of genders) without children; I'd love to see it. I think you'd still have the custody/child support issues; but I think that's a much larger issue that I'd rather not delve into now.

[trinityvixen.livejournal.com]

Because people aren't their jobs. Because people aren't signing on for a negotiated fee in a marriage. (Unless they're trophy wives, in which case their divorce issues are probably already rigidly defined enough not to need the help.) Because we don't legislate you against hurting people's feelings (unless you're slandering them). That's what your analogy works out as: if someone divorces you and gets a new partner and chooses to rub that in your face? That fucking sucks, but it's not nor should it be illegal. And would you really want someone who doesn't want you? You think forcing a solution is the best idea?

I have to take issue with "incompatibility" equated with "without good cause" as well. Unless your definition of incompatibility is arbitrary to the extreme (i.e. he/she sneezed, I want a divorce), it's a fair reason to divorce a person. I was incompatible with a roommate I'd been living with, though I didn't know it when I signed on to room with her. Suppose I made a similar mistake with a husband I never lived with? Personal habits that annoy and cannot be corrected or won't are extremely detrimental to both parties over time, and some times you cannot know what will affect you before hand. Should you be punished for not guessing how well you'd be able to tolerate these things?

I'll be honest here with you: I really hope no future girlfriend or wife of yours would ever read this. Because it makes you sound inhuman, as though you think people are being ethically unsound for not being able to stay in love for the rest of their lives. We know, statistically, that there is a so-called "natural" divorce rate (that is, even when people aren't allowed to divorce, there is always a double-digit percentage of people that would and want to) that hovers in the 20-30% range, if not higher. What it seems like you are saying is that those people? Are disreputable. Are somehow dishonorable and should be legally and monetarily punished for not being able to stay married. That's unfeeling. If it's not what you meant, correct me, but that is exactly what you said: divorce should be met with punishment. I would hope you wouldn't force marriage on a partner at all, ever, let alone use the threat of forcing the divorcing party to risk financial depredation because they were unsuitably loyal.

It also makes you sound incredibly naive. So while I admire your faith and your loyalty and your aspiration to stay married when the time comes, I pity that future married you when he's unhappy. God forbid you should ever be so unhappy that you don't want to stay married to a person even if you're no longer compatible. I wouldn't wish that one anyone, but especially I don't wish it on you because you're determined that it should be stuck out.

[edgehopper.livejournal.com]

You seem to confuse "breach of contract" with "acted unethically" (though the two are often concurrent). It's entirely possible that the best course of action is to breach a contract, and take the resulting hit--it happens all the time in business. If you're truly unhappy in a marriage, go ahead and leave. What I object to is expecting to break an agreement and get all the advantage out of it as well.

This is not about punishment (it can't be--contracts never result in punishment). This is simply about enforcing a legal agreement. This also is not about mutually agreed divorces; I agree the state has no interest there beyond making sure the children aren't abused. This only comes up as an issue where one party wants a divorce, and the other doesn't. And in that case, I'm a fan of holding people to their agreements, and see no reason why change of circumstance should relieve one of the financial responsibilities of marriage any more than it would a bankruptcy or other long term contract.

[edgehopper.livejournal.com]

should relieve one of the financial responsibilities of marriage any more than it would a bankruptcy or other long term contract.

Substitute "mortgage" for "bankruptcy" in that sentence.

[trinityvixen.livejournal.com]

How am I to read this line about "get all the advantage out of it"? You say it's not about punishment, but your statement inherently implies that one is not allowed to get what one wants in a divorce. Or marriage, to whit, your other line:

And in that case, I'm a fan of holding people to their agreements, and see no reason why change of circumstance should relieve one of the financial responsibilities of marriage any more than it would a mortage or other long term contract.

What troubles me about this is the assumption that people divorce for financial gain, because they want money for nothing. Point is, you dismissed unhappiness as secondary to the fallout over who has what thing. Unhappy? Sure. But you can't be happy and have the TV, the house, or half the assets. All your arguments have been about my money, my things, my stuff, my checks, mine, mine, mine. You're playing out this scenario as if there is a wronged party in an "incompatibility" divorce, as if someone being divorced against their will could only be the wronged party. That's laughably untrue. Most of the time, the person being divorced has been given every opportunity to figure out their shit, has been told explicitly how to figure out their shit and they failed to do so. Since most people are self-protective, they deflect the anger onto the person wanting the divorce. That's what you're doing in all your arguments: the person wanting the divorce is selfish, end of story.

You're also using binding non-compete contracts as an ideal model for marriage. This is, to put it bluntly, horse shit. Non-compete contracts are terrible things meant to solidify the power of a firm or company against competition (or reckoning). It's about maintaining control over people. Advocating marriage as contract implies that that is what you want: control. I sincerely hope that you're going to back the fuck away from that implication reeeeeeally soon because it's fucky creepy right now, how you're coming off.

As ivy03 pointed out, too, marriage used to be contractual. Literal, actual contracts. Some marriages still are, for those who want them. These days, we tend to talk about marriage licenses, a form you file with the government to show that you've managed to jump through the right hoops by them to be married. Currently, those hoops are: 1) getting someone to agree to marry you (note the assumption that being with you is voluntary, very important) and 2) filing out the form in front of witnesses testifying to that fact). Licenses? Can be revoked, lost, or changed based on your residence, age, and medical complications. Or, hey, changed to license you to drive entirely new vehicles! Licensing marriage is a way to approve and recognize it, not to hold people trapped to it. That, not the contract, is the ideal.

[edgehopper.livejournal.com]

What troubles me about this is the assumption that people divorce for financial gain, because they want money for nothing.

Straw man. People divorce for whatever reason. They shouldn't profit from it, whether or not that was their intent (unless the other party is in breach through abuse or adultery--Tiger Woods should take a huge hit.)

Most of the time, the person being divorced has been given every opportunity to figure out their shit, has been told explicitly how to figure out their shit and they failed to do so. Since most people are self-protective, they deflect the anger onto the person wanting the divorce. That's what you're doing in all your arguments: the person wanting the divorce is selfish, end of story.

I don't care who was selfish. I care about what the terms of the agreement were. If you don't want to enter into a binding agreement, then don't--keep living together without a marriage contract. In this day and age, you don't have to. Of course, your ability to plan for the future drops considerably because the partner you've depended on could leave on a whim, but then, you also can leave on a whim.

But marriage is an agreement to form a legal economic unit; if it were only a matter of love, there's no need to make it a state concern. The modern terms have dropped requirements of sexual performance and childbearing, but the basic bargain these days is, "We stay together, we depend on each other, no one becomes abusive or commits adultery, and this arrangement is until the death of one of the parties." Pure no fault divorce says that such an agreement is unenforceable--then why enter into it?

You're also using binding non-compete contracts as an ideal model for marriage. This is, to put it bluntly, horse shit. Non-compete contracts are terrible things meant to solidify the power of a firm or company against competition (or reckoning). It's about maintaining control over people.

Noncompetes are enforceable only to the extent necessary to protect the employer's interest; they are designed to protect a company's risks from the employer/employee relationship (that they don't invest all the money in training to see the employee go off and steal the investment.) It's not about control at all. If you wish to maintain otherwise, I take no responsibility for your willful ignorance as to the business world.

To close, here's a simple question: If state marriage is no fault, why should I enter into it? What advantage do I gain from having the state recognize my marriage, if it's dissolvable at will to the considerable advantage of the lesser-earning party? If you reduce marriage to the non-binding whimsical institution you seem to support, what's the point?

[trinityvixen.livejournal.com]

If state marriage is no fault, why should I enter into it? What advantage do I gain from having the state recognize my marriage, if it's dissolvable at will to the considerable advantage of the lesser-earning party? If you reduce marriage to the non-binding whimsical institution you seem to support, what's the point?

You're joking, right? We give a lot of rights to people who are married. There are financial advantages they share, tax incentives and breaks, not to mention certain powers should a loved one be ill, die, or need citizenship, etc. The advantages to marriage are many. There's the social approval alone, if those more tangible benefits are insufficient.

My counter point to you would be this: if divorce is impossible, or so financially punitive to a point that it wouldn't be worth the risk of entering, who would get married? They're both ridiculously reductive questions, yours and mine, because it assumes there are no benefits to marriage no matter what. Which isn't true.

[edgehopper.livejournal.com]

You're joking, right? We give a lot of rights to people who are married. There are financial advantages they share, tax incentives and breaks, not to mention certain powers should a loved one be ill, die, or need citizenship, etc. The advantages to marriage are many. There's the social approval alone, if those more tangible benefits are insufficient.

The legal benefits are insignificant next to family stability (and most of those benefits can be contracted around), and social approval can often be achieved solely through religious marriage. The biggest advantage of old fashioned marriage (no socially legitimate sex without it!) is gone, and good riddance.

I'm only asking about the benefits of the state institution of marriage. And I see a lot more disadvantages than benefits for a high-earning partner in a no fault system. A few tax breaks over the risk of financial catastrophe at someone else's whim. Not that hard of a decision, really.

You see inhumanity because you're entirely focused on the leaving party, and assume that they're innocent. Let me spell out my preferred system:

Let H be the higher income party, and L be the lower income party. In the event of a nonmutual divorce filing:

If the leaving party proves that the non-leaving party is in breach of the marriage contract through domestic abuse, adultery, drug addiction, or a similarly serious violatition of domestic order, the non-leaving party is considered in breach. If the leaving party cannot so prove, the leaving party is in breach.

If L is the breaching party, both parties walk away with no alimony, and absent abuse or mutual agreement otherwise, the parties have joint custody of kids with H as primary custodial parent.

If H is the breaching party, L receives half of the difference in their income as alimony for 10 years. Absent abuse or mutual agreement otherwise, the parties have joint custody of kids with L as primary custodial parent.

Marital assets divided in accordance with the rules above--the party in breach leaves with nothing more than he/she entered if poorer, and loses half of marital assets if richer.

[trinityvixen.livejournal.com]

Must be nice to live in a lawyer's world. Everyone's a party.

(Lawyer joke! Only, er, it's far too true, isn't it?)

The difference between your argument and mine is not just in sympathies, I hope you realize that. I can sympathize with both sides. It would suck to be told, out of the blue, that someone you loved didn't love you any more. And, yeah, I'd fight to keep them, but I'd never want to force them. (Why bother? I'd only prove that I wasn't worth it.)

The difference between our arguments is that you see divorcing as an act wherein one party is doing moral wrong to another (and thus all the legal stuff should side with the wronged party), and I don't. I think it might hurt somebody's feelings, might even hit them in the pocket a little, but that's the risk both took. If it hadn't been one divorcing, it might have been the other. Loads of divorces are mutual. Divorce is a sign that the pair is wrong, not that either or both individuals are. They just aren't meant to be together. I think exacerbating hurt feelings by slinging blame--"breach! breach!"--is pointless and won't stop divorce nor will it really mediate the abuses in divorce settlements. The worst thing to do where there are resentments is to try and force people together harder with such rigidity. It just isn't practical, and life is never so simple as your Person A and B example. Never.

[edgehopper.livejournal.com]

Loads of divorces are mutual. Divorce is a sign that the pair is wrong, not that either or both individuals are.

And when you have a mutual settlement, I have no problem with it.

This is only an argument when one party wants a divorce and the other doesn't (I'm overusing "party" because it's delightfully gender-neutral, incidentally). But for the state to take every request for divorce and say, "Eh, you're both wrong" is like the teacher who sees a bully beating up a nerd and throws them both in detention for fighting. We have a justice system to judge such things and determine which party, if any, is at fault.

I'm coming to this discussion with a heavy bit of personal experience her, namely my mom, who was screwed over by fault-neutral divorce laws. Yeah, the emotional issues were horrible, and we've all resolved that my dad was an awful person. That doesn't come anywhere near sufficiently compensating my mom for my dad's breaking an arrangement where she took care of us for 15 years, giving up the equivalent of net millions in earning potential, and getting away with the same division and alimony as anyone else. You can't ignore finances when you talk about law, because the end result of American civil law is always money. Marriage is supposed to protect people's interests in that situation, and your preferred law doesn't do that--which is why I find it far more inhumane than the cold contract calculus in my preferred code.

[chuckro.livejournal.com]

If your mother decided she'd had enough of your father and wanted a divorce, but could not prove a "serious violation of social order", this system would screw her over mightily. How would that improve matters?

Sounds problematically close to Agunah to me.

[wellgull.livejournal.com]

Yeah, good point, noncompete agreements should also be illegal.