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

[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.

[trinityvixen.livejournal.com]

I think this is a problem. Obviously, your experience informs upon your point of view. I just fail to see how forcing the issue and making all those who initiate divorce pay through the nose for the privilege would make it better. You might avoid this particular issue, but you'd be punishing hundreds more people. I don't think it balances out, either. I think it still need to be determined on a case-by-case level with no inherent assumption of divorcing party = wrong party.

And I didn't advocate any blame, dude. I didn't say "pat the bully and the bullied alike," I said don't assume you now who the bully is. Which is what you're suggesting you do know because someone initiating divorce = the bully. You don't actually disagree with me procedurally where it comes to abuse/infidelity, but your bias against the divorcing party damns all divorcing parties. Are some divorcers scumbags? Yeah, obviously, and you've got the personal history to prove it. I just doubt very much whether punishing them with divorce would in any way fix marriage. It would, undoubtedly, diminish, not improve, marriage.

[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.

[edgehopper.livejournal.com]

Actually, Agunah was an issue for her. But if you don't have evidence, don't get unilaterally divorced (mutual divorce, negotiating your own terms--fine by me). We don't let people out of any other legal obligation on a whim; we don't put people in jail because someone feels violated (unless they're Duke lacrosse students, but that's another matter). Ask my current client if he can go work for another company because he felt mistreated at the old one, regardless of agreements signed.

[chuckro.livejournal.com]

But if you don't have evidence, don't get unilaterally divorced

That's a really problematic stance, though. It has the unintended consequence of punishing someone who wants to escape from an abusive spouse if they can't provide sufficient evidence. "It's not abuse if it doesn't leave marks", anyone?

[edgehopper.livejournal.com]

Just like our rules requiring reasonable doubt for a rape conviction have the unintended consequence of punishing rape victims without physical evidence of the crime. The alternative is a justice system that weighs one person's feelings over another without caring about the truth. Relying on evidence is the best we can do, even if occasionally someone will get screwed due to lack of evidence.

[chuckro.livejournal.com]

Severely different scale, though: A rape victim who cannot produce evidence won't see justice, but the government isn't putting barriers to them escaping getting raped again. This isn't just, "We won't help you without evidence." This is "We will punish you if you try to help yourself and don't have evidence."