Divine Plagiarism

Divorce is so prevalent in our society that the assertion that it is a right is accepted as a truism. Perhaps, instead of seeing it as a tragic necessity, we should stop and question the construct of divorce. I know this is a touchy subject. And I know that I sound about as puritanical as can be right now. Before you push the ’gasp, stop thinking’ button, though, I would challenge you with the fact that both Susan B. Anthony and Elisabeth Cady Stanton were both vehemently against no-fault divorce. They argued that divorce hurt women. Alimony is an attempt to reconcile this hurt, but even if alimony could balance things between the former spouses, it does little to recompense the children of the marriage for the damages they will suffer as a result of the divorce. Divorce hurts children. They have rights too. I am not arguing for paternalistic policies on marriage. I think libertarian concepts work just fine. I just think we did the math wrong.

Libertarianism is a useful vantage point from which to understand the law. It is particularly useful when trying to understand contract law and tort law. You willingly enter into a contract. As a function of that contract, you promise to do certain things, and are promised certain things in return. In entering into a marriage, we create an entity which has its own formal and informal economic life, an entity that is granted legal recognition (taxes, etc.) In this way, a family is similar to a corporation.

Imagine two people come together and create a corporation. They pool resources, and both invest time and energy in the corporation. Say, for the sake of argument, one decides they no longer like the other person, that they are no longer interested in being part of the corporation. Say, as well, that the corporation cannot continue to exist with only one party. The corporation would fail, and be carved up to be given back to the two original stakeholders proportionately. Rights are balanced as well as they can be, and our libertarian construct holds. It is sad the corporation didn’t work out, but things are as fair as they can be.

Let’s say instead the corporation did very well, and made enough money that the two original stakeholders decided they should take the corporation public. So they open it up, though they decide to retain majority shares. The shares are eagerly bought up by investors. Say now that time goes by, the corporation stalls. The two founders are still critical to the operation of the corporation, without them it will fail. Imagine now that those founders decide they have irreconcilable differences. They are the majority shareholders, and together they vote to dissolve the corporation. Now imagine that after they dissolve the corporation, they sell off its assets and split it between the two of them, cutting out the shareholders entirely. This doesn’t sound right. The shareholders have rights, and should have a share in the settlement. Here is the problem. We like to call half-libertarian constructs libertarian. We cut people out of the deal to enlarge our chunk of the pie.

Alimony came into existence as a recognition of the contribution of women to the economic unit of the family, as well as a recognition that the woman could expect certain duties from the man within the marriage. Traditional domestic roles, though historically ignored by economists, incorporated a high degree of value added to the family unit. If the woman was managing the house, the man could earn money outside the house. This is not meant to be normative, only to say that fuzzier terms were required to see her stake in the arrangement. Additionally, the woman generally had do make greater sacrifices on the behalf of the relationship than the man. A pregnancy sets a woman at least six months behind in career advancement. Domestic activities do not increase her profitability on her own. Ultimately, her chances of remarriage traditionally were less than the man’s, so she sacrifices more in the way of prospects than he does. She has a right to certain duties from the man in the relationship. If the relationship is ended, he needs to provide compensation for those duties.

Children have certain rights, as well. They are the complicating factor. They come into existence as a function of the family, and become stakeholders in that family. They have, in effect, been implicitly signed into the marriage contract by their parents. There are certain duties due them, as part of that contract. The most apparent duties are already addressed by the law: basic clothes, food and shelter. But there are more duties. The parents need to provide the children a home. This is a subjective term, just as the economic contribution of the wife to the household is somewhat subjective. This does not make it insignificant. Studies overwhelmingly show that divorce has a negative effect on children. They incur harm in the dissolution of a marriage, as they are deprived of their right to an unbroken home. They cannot forfeit this right, as the children have no veto on a divorce, and have no legal agency with which to exercise any veto. Therefore, they should receive restitution if the marriage is dissolved from both parties to the dissolution.

Here we turn to policy. What would this right of recompense look like? For this, let’s turn to the idea of irreconcilable differences. Currently, this idea is something of a mockery. It means anything and everything, and has become a catch-all to legitimate all divorces. This was not the intent. Returning to the original intent, the idea was that if a marriage was so totally broken that if the couple could not salvage it even by exhausting all reasonable avenues, then at the end of their frustration they would be allowed to scuttle it. In this we see the difference between good faith and negligence. This is a useful distinction. If the parents try their utmost to save the marriage, they are acting with good faith toward their children, and this should be considered in the settlement. If they ’just don’t love each other anymore,’ which was never a pre-condition for the fulfillment of the duty to the child of providing a home, then their actions take on an air of negligence, and the law must be more directive in delineating stakes in the settlement.

How, then, do we quantify a good faith effort? To some extent, as with any proof by ordeal, this will have to be somewhat arbitrary. Marriage counseling is a universalizable and effective tool of salvaging a marriage. One year is long enough to prove a serious commitment to working through problems. Therefore, if a couple is willing to undergo one year of intensive marriage counseling, they should be considered to be acting in good faith. This counseling would be subsidized, though not free. In order to ensure that counseling does not become a rubber-stamp or a formality, counselors would have to be certified by some means. Reasonable metrics should be applied to this process (I.e. 99.9% of cases ending in divorce is probably not a counselor that is very interested in success.) If the counselor assesses that the couple is not making a good faith effort, then they will be considered in breach. They can choose either to be assigned to another counselor (up to a total of 3) and restart the year of counseling, or proceed to the delineated settlement (to be explained in the next paragraph.) If one party is clearly not trying and the other is clearly making an effort, this will be considered in the proportioning of the settlement, to recognize the good faith of the party who is trying. If at the end of the year of the counseling, the differences remain irreconcilable in the eyes of the counselor, then the parents are to be considered as acting in good faith. In that case, an argument can be made that in such a home, brokenness is already extant to such a degree that the parents would not be performing any duty to the children by maintaining a nominally intact home. A divorce with a traditional alimony and child support arrangement would then be appropriate. Preferably, though, the parents actually resolve their difficulties, and the marriage is saved.

Counseling cannot be compulsory. This opens up too many cans of worms. Therefore, there must be a more direct option for couples who decline counseling or who do not act in good faith in counseling. As tort law, this cannot be punitive (although the law having a deterrent effect is not the same as a punitive law.) It must simply balance shares of the settlement between the stakeholders. We will call this the ‘delineated settlement.’ The children are entitled to an unbroken home. If they are deprived of this right, they should receive recompense. The most objective means of this recompense would be money. The amount would be derived from anticipated lifetime counseling bills, lifetime reduction in wage earning potential, and emotional distress on the part of the child. Consideration would also be given to proportionality with the parents’ income. Percentages could be assessed regionally and tweaked for the individual cases. This money would be set aside in an interest bearing account, and made accessible to the child when they reach the age of majority. Consideration could be given to limiting the fund to educational purposes (college, trade school, etc.) The idea of equalizing pain is less than ideal, but it works as a libertarian concept of torts.

There is the danger of unintended consequences. The most significant being possible facilitation of abusive relationships. Abuse is a criminal law matter. If abuse exists in a relationship, and is established in a court of law, then the option will be given to the abused party to proceed directly to the delineated settlement with an automatic assessment of the totality of the damages to the children against the abusing party. If the perty accused of abuse is not convicted in a criminal court, there will remain an option to try that party in a civil court at a lower standard of proof. This could lead to the unintended consequence of spurious charges of abuse. In order to discourage this, frivolous charges of abuse will be considered as acting in bad faith, and will be considered in the settlement.

Policy is always concerned with outcome, just as law is concerned with justice. We have looked to libertarian constructs for justice. Let us then look to outcomes. Having ‘irreconcilable difficulties’ actually mean something increases the opportunity cost for divorce. Just as any supply/demand graph will tell you, this will reduce quantity. This incentives resolving problems, by deterring divorce. It makes it worth sorting things out, and provides families an avenue to sort things out. So it will save some marriages. The family is the foundation of the state, as it pre-dates the state, and is a super-ordinate institution. The rights of man come before the rights of the state, because man is more important than the state. If the man ceases to be man, then the state will fail. The family exists between man and the state. Man makes family. Families make states. No conception of the state is possible without the idea of some form of family (not necessarily nuclear.) Without the family, the state will fail. A state where half of marriages fail is not a healthy state. So if we can same some marriages, we increase the good.

Let me end on a more emotional note. I thank my parents for their courage and for their willingness to stick it out when things got tough. Because they chose to love each other even when they didn’t feel like it, I had the privilege of growing up in an intact home. Most of my friends (and my father) were denied that privilege. I will speak for many here. We had a right to have two parents at the same time. All of us did. We had a right to have families when we were growing up. We should not have to make songs like ‘Broken Home’ because of the choices of people who had songs like ‘Imagine.’ If we were robbed of that right, we should be paid back for the things that we were robbed of. But how much better would it have been if it wasn’t so damn easy to get a divorce. We spend so much time building escape hatches and ejection seats. We make it so easy to give up and run away. Maybe, we should spend some of that time trying to make things work. Maybe, if we chose to honor each other past the point where it ceased being fun, we might find that we could actually learn to trust each other. Maybe, if we actually tried, we might find out that we actually love each other. And then we’ll have somewhere to start from.