November 1972 (first issue)
It is 2001 and (while the black monolith plays its eerie games in outer space) a young man and woman approach the Marriage-Divorce windows at their town hall, “We want to record a marriage, ” he says. The clerk matter-of-factly whips out Form 101-23. “Date of commencement of marriage?” he asks, pencil poised. . . “Uh, last I night, ” the young man says . . . The young woman blushes prettily. . . The clerk is unmoved, “Personal decision or religious ceremony?” he asks. . . “Personal decision.”. . . “How long do you plan to continue the marriage until termination?” . . . “Six months”. . . The clerk puts down his pencil patiently, “That’s impossible, ” he says. “The tax office won’t recognize any marriage of less than one fiscal year duration. If you want a legal marriage, you’ve got to obey the legal rules. Now, shall I tear this form up, or do you want a one-year contract?” The lovers exchange glances. . . “Make it two years, what the hell, “says I the man, and the lady blushes again, happily. . . “Two years, ” the clerk mutters, stamping the form. “You must really be in love. . . Five dollars registration fee, please.” The marriage is official, for tax and business purposes – and why else, a citizen of2001 would ask, should the State be involved in citizens’ private sexual arrangements? “We want to terminate a marriage,” says the next couple.Strangely, neither of them have that angry, hurt look of people seeking divorce in our day. Why should they? This is a simple legal transaction of telling the State what they have done: the State has no authority to tell them they must do otherwise. “Is this your original termination date?” the clerk asks. “It’ll cost an extra dollar to opt out early, because then I have to hunt up the original form and note the change.
Does this sound fantastic? It seems more incredible to assert that our present divorce laws can last, without dramatic change, for another thirty years. It is equally plausible, sociologically, that the real changes will be more radical than I have suggested in this prophecy, for social changes are always more rapid and thorough than anyone predicts in advance. (How much of the world of 1973 did anyone foresee in 1943? – Women’s Lib? Gay Lib? Moon shots? Legal abortion? four letter words in movies??!) It’s sure to come!
Our obsolete and idiotic divorce laws must be changed. They are irrational, chaotic, authoritarian, undemocratic, and violate the principle of the separation of church and state. They encourage both dishonesty and vindictiveness.
Present divorce laws derive from a predominately rural and Christian past which has little relevance to either the values or the technology of the present day American scene. Marriage was considered a sacred life-long contract which only some appalling lapse of conduct on the part of one of the persons could abrogate. This approach is increasingly absurd in a country where, in fact, most marriages now do end in divorce.
Most states perpetuate the fallacy of the old adversary system, meaning that in any divorce action there must always be a guilty party. Mutual consent is not grounds for dissolving a marriage; one party’s “guilt” must be proved before a divorce can be granted. Couples that otherwise might resolve things quite rationally and amicably are often led into bitter and costly struggles. Too often the husband who gallantly lets the wife appear to be the injured party is shafted with vicious and punitive alimony.
Virtually everyone knows at least one divorced man who has been economically crippled for life, a walking horror story of such vindictive judicial proceedings.
Granted, women have some legitimate gripes about a system which discriminates against them and makes it practically impossible for them to support themselves and their children at a decent standard; on the other hand, it is inhumane and unrealistic to expect unfortunate divorced husbands to continue to be victimized and pick up the tab for society’s inequities. An increasing number of men are finding the present state of affairs intolerable.
The real cause of the divorce doesn’t matter. The wife can be frigid, promiscuous, lazy, selfish, thieving or a cross between Gravel Gertie and Ti-Grace Atkinson, the divorce laws will produce the same result. When the marriage ends the husband will be the villain and the wife will be perpetually comforted and compensated out of his bank account, especially if she has attained the sanctity of motherhood.
For she will almost inevitably get custody of the children. It doesn’t matter if the children prefer the father, or if she regards them with chronic fury, disgust or icy malevolence; it doesn’t matter if she spreads for the milkman, the postman, the grocery boy and the dyke down the street. She gets the kids, and with them, a subsidy. There are a couple of exceptions to this. Judges will sometimes give the children to the father if the mother is a certified junkie with a heroin habit or if she is demonstrably so insane that she thinks Jews come from Mars or blows her nose in her soup. Otherwise, she has it made.
The current divorce picture is sometimes needlessly cruel to children. Since the law sets up an adversary proceeding in which the parents are forced to fight or to pretend to fight, the children become part of the spoils of war. When a custody battle does develop, the children’s emotions are inevitably twisted and turned like silly putty and if they are never quite normal afterwards, nobody (except the moralists who wrote the law) should be surprised.
The differing divorce laws from state to state are a nightmare of chaos and irrationality. You can get a divorce if your wife commits adultery in Alabama, Alaska and most other states, but not in Florida or Michigan. Illinois alone has been thoughtful enough to offer a dissolution of the marriage should your wife happen to put poison in your orange juice. In most states if the woman copulates with her pet poodle there’s not a thing you can do about it, but North Carolina will staunchly protect your dignity by granting you a divorce in this event. In Louisiana you can divorce your wife if she decides to move away from you and live somewhere else; not however, if she is merely insane, sadistic, or an addict. If your bride gives you the clap on your wedding night its only grounds for divorce in Hawaii, Illinois and Kentucky. Kentucky, by the way, allows you a divorce with no actual proof of adultery if the woman is “lewd” or “lascivious”. (Who would want to marry a woman who wasn’t?)
These laws are authoritarian and undemocratic. Behind them is the unstated assumption that people’s rights are always to be defined for them by their “betters.” Thus, the rights of the child are defined by the tolerance of the parents-and, within this framework, the rights of the worker by the whims of the employer; the rights of a student, by the teacher; the rights of a teacher, by a Board of Education; and. so on, each person acting by grace of those above him on a pyramid of power. At the top of the pyramid-see the back of your dollar bill-is the Eye of God; or, if God can’t be found, a king who will act as God’s agent. When the king is not an individual but a coalition, monarchy is decentralized and we have the shell (although not the substance) of democracy. This is the whole theory behind statute law.
But there is another kind of law, equally ancient and traditional, but having a libertarian instead of authoritarian basis. This is common law, or the law of the people. Instead of a pyramid of power, this system posits a wheel in which all are on the same plane and equally distant from the center, which is not a Godly power above them, but a consensus they have reached through ages of compromise between their separate interests. Thus, statue law is imposed downward by superiors on inferiors, but common law is agreed upon horizontally among equals.
Obviously, common law is the only kind of law compatible with grass-roots democracy or libertarianism. It is rather shocking to contemplate the extent to which we are still governed by aristocratic statute law. (This may well be, as heretical Constitutional lawyers like Lysander Spooner have insisted, the chief cause of the failure of democratic ideals and our evolution into a class society similar to Europe.) Especially noteworthy is the authoritarian downward-from-God-to-us-via-the-Master-Class structure in our divorce laws. None of them show any sign of the give-and-take of people acting as equals to iron out their differences; all came down from above. The idea of the divorce laws, in short, is that your “betters” – who kindly wrote these laws for you – know better than you do how and when you should mate and how and when you should part.
Fortunately, the times – as Bob Dylan noted – they are a-changin’. The first no-fault divorce law was enacted by California in January 1971, after five years of debate and investigation by special committees. Since then Iowa and Colorado have followed suit, and other states are considering similar legislation.
The “no-fault” divorce is just what the name suggests. Neither party sues the other and alleges misconduct. They merely act in concert to get out of a situation which they both find intolerable. The role of the court is not to fix blame but to act as advisor to both in setting up a property division which is fair to each (and to any children they may have.) In general, everything is structured to lessen the hurt and the hatred of the couple, and nothing is devised to inflame these negative emotions further. Under this new law, one case has already occurred in which the woman was ordered to pay alimony to the man.
Herbert Glieberman, an attorney who has observed the California divorce scene closely under this new law, says that it definitely decreases unpleasantness and bitter feelings on both sides. One Los Angeles psychiatrist has even suggested that, as divorce proceedings become more rational, we will have to invent a new religious or quasi-religious ritual to convince the divorced that they really are released from the marriage and that nobody blames them. This is not so far-fetched; one lawyer describes a client, after a brief and unemotional hearing, blurting out, “How do I know I’m really divorced?” He had all the legal documents he needed; obviously, what he wanted, psychologically, was some form of ritualized purgation.
Already alternative forms of mating-the commune, the crash pad, the trio, the unwed couple are multiplying, and even LIFE magazine does not ridicule these experiments any longer but treats them with respect. Some people will always want to pair off into couples, for longer or shorter periods (some, yes, even for life), and they may have to register this arrangement with the state tax and welfare people. But, as my opening fantasy suggests, not much else of marriage, or of our traditional divorce laws, can or should survive into the 21st Century.