Taken Into Custody By Divorce

National Catholic Register: Taken Into Custody By Divorce by Jennifer Roback Morse (HT: Kevin Schmiesing)

Most Americans have made their peace with no-fault divorce, believing easy divorce to be an enhancement of individual liberty. But a new book by Stephen Baskerville argues that permitting unilateral divorce allows an unprecedented scope for government intrusion into ordinary people’s lives. Taken Into Custody has several breakthrough insights.

First, no-fault divorce frequently means unilateral divorce: One party wants a divorce against the wishes of the other, who wants to stay married. This fact means that the divorce has to be enforced. The coercive machinery of the state is wheeled into action to separate the reluctantly divorced party from the joint assets of the marriage, typically the home and the children. Involving the family court in the minutiae of family life amounts to an unprecedented blurring of the boundaries between public and private life.

People under the jurisdiction of the family courts can have virtually all of their private lives subject to its scrutiny. If the courts are influenced by feminist ideology, that ideology can extend its reach into every bedroom and kitchen in America.

Thus, the social experiment of no-fault divorce, which was supposed to increase personal liberty has had the unintended consequence of empowering the state.

I had an unusual opportunity to see this first-hand last summer when I did a Continuing Legal Education workshop for judges. Most of the judges had significant experience with family courts, so they were unusually well-informed. My audiences are usually amazed when I point out that family courts perpetrate greater invasions of personal privacy than any other governmental agency. Not the judges. I had expected some resistance from them on this point. After all, they are the ones doing the intruding.

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But fathers’ rights advocate Stephen Baskerville has harsh words to say about the entire no-fault industry, including the judges. The court-appointed therapists, the domestic violence experts, the visitation supervisors, the teachers of parenting classes, all these experts seem to be there to help divorcing families. But on Baskerville’s telling, they simply extract additional payments from the family, and do nothing to save the marriage.

He reports that even mediators find that they are not allowed to try to preserve the marriage. Their role is simply to talk the reluctant party into acquiescing….

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….How can it be that all these people are keeping the system going out of their own self-interest, and yet profess disdain for that same system?

I think the answer lies in what economists call perverse incentives.

No one likes the actual outcome of the system, but no one has an incentive or the ability to change it. So people go along, following the rules as laid down, trying to make marginal improvements to the best of their ability, and still being sickened by the whole sight. The incentives are so perverse that it is as if everyone were motivated by a desire to create as many divorces as possible.