Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, May 6, 1994 TAG: 9405110061
SECTION: EDITORIAL PAGE: A-15 EDITION: METRO
SOURCE: By JOYCE A. ARDITTI
DATELINE: LENGTH: Long
For one thing, the state has its approaches reversed. Couples can get married, with little thought or preparation, at minimum expense if they choose. Restrictions on marriage are virtually nonexistent.
Now divorce, that's another story. Anyone who believes that divorce is getting "too easy" has obviously yet to go through one - at least in Virginia. Besides often being an emotionally painful experience, the potential expense is tremendous, depending on the attorneys involved, the complexity of property issues at hand, and the level of conflict between the divorcing parties.
There are still a few "dinosaur" divorce attorneys who, true to their stereotype, fuel their clients' hostilities and extend divorce proceedings unnecessarily through litigation. This is often at the expense of family functioning and economic stability. A skilled negotiator is what is most needed by divorcing parties - someone who is ethical and, I would argue, compassionate. After all, family lawyers are dealing with families. Breaking up is hard to do ... let's not make the work of family reorganization any more difficult than it already is.
Divorce has a longstanding legal tradition, rooted in l9th century English common law, that is largely punitive and, unfortunately, fraught with sexism. According to this tradition, couples had to have "grounds," and prove marital fault, to obtain a divorce. The "innocent" spouse was assured justice; the "guilty" spouse was promised punishment.
Often grounds, and subsequent rewards and punishments, are linked to sex-based roles and expectations. A husband is expected to be the primary breadwinner in the family - and alimony, child support and custody laws generally reflect that expectation. A wife's failure to carry out domestic duties or follow her husband to a chosen domicile were, and sometimes still are, considered grounds for desertion.
The "double standard of adultery," whereby harsher adultery statutes were applied to women, still exists at some level in our courts today. In fact, during the l9th century, many European countries, including England and France, prohibited women from obtaining a divorce on the grounds of adultery alone - but for men, adultery was the easiest, most common way to end a marriage.
So much for history lessons. Although all states now have no-fault statutes in place (whereby grounds are unnecessary and a divorce is granted after a certain waiting period), many states, including Virginia, still allow fault divorces.
What if legal restrictions similar to those applied during divorce were in place for marriage? What if couples had to adhere to prescribed waiting periods after obtaining their marriage licenses? During the wait, they would be required to obtain legal counsel and draw up a "marriage contract." Such a contract would encompass issues related to property, breadwinning, conflict negotiation, household responsibilities, intentions regarding children and child care, vacations - maybe even agreed-upon sexual practices.
Imagine: prospective couples being forced to discuss and specifically negotiate these issues prior to marriage. Then at the end of the waiting period, assuming that the couple still wanted to marry and were able to negotiate a satisfactory "contract," a judge could "grant" them a marriage - given sufficient grounds, of course!
If such an idea seems preposterous, it may emphasize the ease with which couples can begin relationships, in contrast to the difficulty involved in ending these same relationships.
Rather than legislating marriage and divorce, the state should focus on protecting children and preventing exploitation. The state has an obligation to provide a legal context responsive to the needs of families when marriages end. Well-functioning parents, a low level of interparental conflict and economic adequacy are three key elements of family well-being, regardless of family structure. Divorce needs to be carried out in a therapeutic, compassionate climate, rather than an adversarial one, to facilitate these outcomes.
The family court is an important service for divorcing families as well as families dealing with juvenile matters. The fact that the family court will not become a reality next year is an unfortunate example of politics substituting for policy. The family-court initiative offers a compassionate approach to family reorganization by providing mediation services and trained "family" judges that families in crisis and transition could utilize.
"Dinosaurs" aren't extinct yet - sadly, a few old "dinosaur" attorneys still roam around Roanoke, preserving antiquated fault legislation that accommodates their financial appetites.
For now, until the family court becomes a reality and Virginia joins the ranks of other no-fault states, it is the individual responsibility of family lawyers and judges to reassess adversarial divorce "fault" traditions, seek outcomes that foster effective post-divorce family functioning, and behave compassionately.
Joyce A. Arditti, an assistant professor in the Department of Family and Child Development at Virginia Tech, teaches a course in family law and public policy.
by CNB