No fault, p.7
No Fault, page 7
But what’s the view like in the winter? I asked, not at all moved by the idea of a man who would choose seasonal blooms over sunrises. She didn’t know, she told me. She didn’t stay there anymore. They stopped talking once she figured out what was wrong with him.
This was one of the few times I’ve heard a story about a couple—any kind of couple—and felt sure I knew the truth, if not what really happened.
Marriage experts and marriage counseling are the crux of the belief that marriage is work, and only labor can keep it intact. As such, it follows that a professional field requires professionals. Rebecca L. Davis’s history of marriage counseling, More Perfect Unions, is an extensive study of the origins of marriage counseling as a movement, which consisted first of formulating and selling it as a legitimate practice. My mother became an expert in divorces and families after the practice of marriage counseling achieved a certain level of prestige, and more than that, a certain level of standardization for training. This was not always the case. The people who were first to assign themselves the role of expert knew more about authority than they did about marriage.
As attitudes toward divorce changed, so did attitudes toward marriage counseling. In the 1950s counselors had considered their clients to be too immature for their marriages; in the 1960s and 1970s, people began to talk a lot about “communication,” a slightly more egalitarian distribution of blame between couples. “Conjoint marital therapy” was introduced, allowing therapists to see what happened when spouses spoke to each other, rather than rely on one side’s interpretation of events. Practitioners began to wonder if they should be helping people adapt to divorced life rather than pressuring them to stay married. Books such as Creative Divorce: A New Opportunity for Personal Growth and The Courage to Divorce were published; the editors of Ms. and Redbook frequently included stories of women who struggled to end their marriages but were ultimately glad to have done so.
Elsewhere, journalists published stories with titles like “Are We the Last Married Generation?” and “The War on the American Family.” In 1987 Newsweek published an article titled “How to Stay Married: The Divorce Rate Drops as Couples Try Harder to Stay Together,” and around this time, Kristin Celello notes, commitment became the catchword most associated with marriage, over communication.
More recently, media coverage about the lack of no-fault divorce tended to center around marriages that are by any account long over but stayed legally intact because spouses did not have access to the resources they needed. “Any law that prescribes that people must live together if the marriage is broken is wrong,” said Judith Sheindlin at a 2007 conference hosted by the Association of the Bar of the City of New York, called “The Need for No-Fault Divorce,” in her trademark rhetoric: firm, sardonic. Sheindlin is more commonly known by her television moniker, Judge Judy.
The field of divorce experts continued to adapt their advice to the times, particularly as psychology and mediation became more common. Dr. Constance Ahrons, who passed away in 2021, was one such advocate for the predecessor of what would later be known as “collaborative divorce.” According to her New York Times obituary, she lived as a divorced woman and worked with divorced couples long before no-fault was “in vogue.” The concept she would become best known for was the title of her 1994 book, The Good Divorce, a combination of reflections of her own experiences, legal precedents, psychological studies, and advice for ending marriages and co-parenting children that suggested healthy boundaries rather than saintlike compassion.
The introduction starts with Ahrons’s anecdote about her eighty-five-year-old mother proudly telling a friend of hers that her daughter was writing a book. “It’s called Divorce Is Good.” Ahrons corrected her, thinking she had misheard. No. Up until her mother passed away years later, she would always claim that the book was called Divorce Is Good.
This deliberate miscommunication is, in many ways, what a certain class of educators, experts, therapists, and authors struggled with in the years after no-fault divorce was first introduced. Books that help us understand the recent past have an adverse relationship to the future. Every self-help book promises to be the last one a reader will ever need, and yet somehow the obvious contradiction of that feeling does nothing to the feeling itself. Vacillating between horror and romance was the chance to start telling what read like a pragmatic fairy tale: perhaps divorce could be if not good then at least better than the alternative. In the way a marriage could be hard and still good, a divorce could find a way to be both, too. In 1994, when The Good Divorce was released, almost half of all the marriages in the United States the prior year were remarriages. People were not done trying, despite the punitive or shameful sensibility that divorce was both inevitable and a failure.
Ahrons began working on The Good Divorce in 1976, teaching at the University of Wisconsin and running a private practice as a family therapist. She saw firsthand the “terrifying disorganization” divorce causes; she saw people who had divorces that could be called good or bad, or sometimes both. But the book was written primarily as a “powerful antidote for millions of divorced parents: an antidote to the negativity of society about divorce.” Ahrons saw the prevalent stereotypes of vicious, destructive divorces (she refers to this prejudice as “divorcism”) as covering up the truth about most families that happen across two households: “an already existing but generally unaccepted cultural phenomenon,” she called it, these good divorces might not make headlines, but they could be models of “a quiet social revolution.”
Her own divorce was a hard one, in her telling; she notes that she and her husband filed in 1965 without the option of no-fault. Because they were forced to then prove who was at fault, the separation was rooted in fear of social shame and economic punishment, and it went so badly it would eventually lead to an instance of child-stealing between intensely bitter legal battles. Without the option of simply gesturing to the catchall of “irreconcilable differences,” Ahrons had to stand before a judge and tell a story she knew would meet the standards for “cruel and inhumane” behavior, as it is called in courts. “My lawyer, the judge, and I all knew I was magnifying petty incidents into major abuses, in order to concoct sufficient evidence,” she recalls. It took two years for the divorce to be finalized, and a subsequent ten years before she could pay off the accrued legal fees. But like she promises in The Good Divorce, it’s never too late to make your divorce into a good one, and over time she and her ex-husband learned to coexist.
Ahrons describes her research, a longitudinal study of family relationships after divorce, as the first to study “normal” families, which I took to mean ones in which there is no diagnosed illness, evidence of acrimony, or known abuse. Much of the research that existed focused on “families with some psychiatric history, families with some identified problem or dysfunction.” Randomly selected from the pool of public divorce records in a Wisconsin county, ninety-eight families provide what Ahrons believes was the true norm of a geographical area (rather than all divorced families). She calls this formation a “binuclear family,” which remains a unit even though the members live in two households. Ahrons, along with her graduate students, ended up interviewing 287 people over a period of five years, with only two families dropping out of the study altogether.
Much like with Bernard’s studies, the details differed when Ahrons interviewed couples separately. Sometimes they reported different information on when they had separated, who requested the divorce, how often one spouse saw the children, and how much child support payments were. Some of this, again like with Bernard’s research, was based on gender, while other discrepancies were attributed to personality types, or rooted in the positions they had taken for court cases to win support or custody. If she and her grad students had deleted the names from the interview transcripts, Ahrons said, the differences would have made them unable to match who had once been married to who.
Dr. Roderick Phillips began working on an updated version of Putting Asunder: A History of Divorce in Western Society in 2022. I called him and asked if he could think of what legal or cultural shifts would be included in the new edition. “Everything has changed,” he said. Phillips wrote Putting Asunder in 1984 and published it in 1988, when no-fault divorce was not as readily available—Ireland and Italy were two countries in particular that have since seen remarkable legislative shifts. “Generally, the procedures have become a lot simpler…and then there are a number of social issues surrounding divorce, such as a greater receptiveness to accepting accounts of abuse (although it falls well short in practice). And then there’s the whole issue of custody that’s still very much in flux about what the best interest of the child means.” Phillips recalls that the stigma around divorce was so great that a divorced person in the 1960s might have trouble getting a bank loan or mortgage, because to be divorced was a sign of instability. Now, by contrast, he points to a “normalization” that naturally occurred as no-fault divorce became an option and people adjusted their expectations of themselves and each other.
Of course, there can be no change to divorce without change to marriage first. Beyond the changes to divorce law, there are fewer marriages overall. People choose cohabitation or common-law relationships, get married much later in life, or marry multiple times over the course of a life. Heterosexuality is no longer a compulsory part of a legal marriage. An assumption that divorce follows infidelity has partially faded, but parts of it still remain. To Phillips, the notion that marriage equals fidelity is still present, and “for all the talk about open marriages, I think they’re pretty rare.”
There are other stigmas that present differently in contemporary times. When Phillips was writing his first edition, he saw domestic violence as something that was tolerated and that victims were taught to hide as shameful. Physical and mental abuse are both recognized as a legitimate expression of cruelty, and—at least in theory—understood to be neither the victims’ fault nor their responsibility.
I wanted to know if Phillips has seen any surprising precedents for the way divorce is treated today, anything that would seem perhaps more contemporary than we expect of our historical traditions. “Yes,” he said. “The whole question of romance or attraction in the history of marriage. There are some people who argue that people got married for practical reasons, and it’s true in many cases: the people they married were similar in many respects, and when they got together they were able to function as an economic unit. If you went ahead and said, I really like the look of this person, let’s get together because he or she is sexy…I mean, that’s fine, but it’s not going to help you live. You can’t survive on looks or personal charm in those kinds of circumstances. But at the same time, personal attraction or whatever you want to call it did play a part. I suspect that’s still in play today. We have this sense that it’s all about falling in love, but we make decisions before we fall in love; it doesn’t happen randomly.
“This is before online dating, I should say,” Phillips amended, “that you tended to meet people like yourself at work, at university, at the institutions where you were. You make these decisions as you go that filter people out, and then you end up with somebody who is very like you in many respects.”
I told Phillips my favorite joke—that not everyone who gets married will get divorced, but everyone who gets divorced has been married—and he told me one of his own. He was giving a lecture soon after his book had come out, and he was asked why divorce was becoming so common. “I turned around and said, ‘The question shouldn’t be why is divorce so common, but why was it so rare in the past?’ I started the talk by saying that I had studied divorce in ten countries from a period of the Middle Ages to the present, and I’d tried to find out what unites these tens of thousands of divorce cases. I said to the audience, ‘I just realized what it was. I’m going to tell you for the first time what unites them all. I have concluded marriage is the main cause of divorce.’ ”
Because of the punishing rewards that the TikTok algorithm provides, the time I’ve spent on the app often comes with a lot of divorce content. The sensitivity and responsiveness of that data-driven feedback loop came to know me well enough to hurt my feelings. More than that, the platform knows how to convince me that time spent there is not time wasted. I’ve watched other people celebrate a divorce or mourn a marriage, listened as the more charismatic kinds of lawyers offered astute or bizarre interpretations of their clients’ predicaments.
There is one divorce lawyer who appeared regularly on my feed, a man named Justin Lee whose account is titled BREAKUP LAWYER JUSTIN, styled in all caps just like that. In some of his videos he is disheveled and drinking red wine out of a stemless glass, the better to give his tough-love style of advice the feeling of late-night confidentials; in others he responds directly to some of the popular and toxic unsolicited advice that comes from other accounts. In one, he interrupts a man who is saying “Never marry someone who tells you how much money they make” with “Never marry someone who doesn’t tell you how much money they make.” He uses the popular meme formats to joke about how his motives for getting into divorce law are a mix of altruistic and theatrical: he loves to help people, and he loves drama. In one of his most widely viewed videos, he succinctly describes the reason why divorce law is considered as—if not more so—dangerous as criminal law, using language that seems like a monologue out of a network legal procedural. While criminal law can be understood as bad people on their best behavior, he says with his tie loosened and his sleeves rolled up, divorce law is good people on their worst behavior.
This dichotomy is a good fit for a divorce lawyer, in which the nature of everything he does will come down to one side versus the other. Even with the prevalence of collaborative law and the popular theories about good divorces, the fact remains that all court documents record cases as one spouse versus the other—a break that requires what was one to become unquestionably two.
One popular format for both sincere and satirical videos was the concept of “the stay-at-home girlfriend,” vlogs of a day spent by a woman whose full-time job is something like a homemaker but who isn’t currently married. Sometimes they are elaborate displays of wealth and involve extensive rituals for grooming and hygiene, from nails and hair to outpatient cosmetic surgeries; sometimes they are ingenious, if obsessive, displays of cleanliness and cooking skills. They are easily parodied since the real thing is already so close to a joke. Lee responded to one that seemed legitimately sincere with a pragmatic legal perspective. “Nothing is ever free in this world,” he says. “The price you pay as a stay-at-home girlfriend is your autonomy, your freedom…what happens when your boyfriend breaks up with you ten years down the line? You’ll be a thirty-five-year-old with no job experience, no career….”
Marriage and divorce laws, for all their gestures at equality, are still ways for states and governments to determine which relationships matter most, a value given to citizens in exchange for the value their commitment supposedly brings to society. Like Bernard’s statement about questioning norms being the surest way of knowing that they’ve lost their power, to consider the imbalance of power in this relationship purely in terms of what laws exist now is to miss all the ways the laws have been and could still be. The law is not really a way of determining how people’s lives are, or even how they must be; it follows the change that happens in ordinary lives as a result of extraordinary action.
The courts are also not exactly the best forum to debate right and wrong. They are a contest of last man standing, in which winning is determined as much by who has the time and money required to pursue a lawsuit to the very end as it is by any scale of justice. A woman who has offered her labor in exchange for shelter and security instead of wages is not only at risk of not being able to afford either going forward; she is also at risk of not being able to afford a lawyer who can argue her case, or that it’s worth considering a new precedent, or that it is an exception to an existing one. Any spouse who cannot afford a lawyer’s retainer does not have much chance of being equally protected by the possibilities of the law.
On the other hand, we are no longer living in a time that offers only white men access to education, property, bank accounts, and marriage licenses. Often these legal warnings have to be taken as they really are, which are sales pitches for a service. No matter how much you love each other now, no matter how collaborative the law gets, these counsels ask, can you really get by without a lawyer advocating for your best interest? Other times they are hand-wringing, not unlike the faulty social statistics about the prospects of the unmarried woman, making the world outside marriage seem too dire to be risked, or at least to be risked without the help of a highly paid professional.
Despite what is perhaps our well-earned cynicism about the prospects of marriage, or wry satirizing about the promise of lifelong love, there’s still a taboo around talking about either in terms of economics. With any marriage—and now, too, with any of the popular forms of cohabiting or co-parenting—there is the potential for transformative material change to everyone involved in the making of this new family, for better or worse. Getting married is one of the major factors in determining a person’s class and wealth, and even the most modest joint incomes will still get a couple further than many single, self-supported households. Rents might become halved, utilities can be split, and you are free to send out requests that someone buy you the really, really expensive salad spinner that you want but could never justify paying for yourself. Single people rarely, if ever, get to demand their friends and family furnish their new homes.
