A Modest Proposal
This is a lengthy but worthwhile article on the current state of family law. Many good points on the problems with the current no-fault divorce system. Where else in life can the one who breaches a contract still go to court with no prejudice against them and ask for all the benefits from the contract? Why on earth have such a crazy system for the most important agreement in life? (The article proposes one answer: the more divorces there are, the more divorce lawyers and courts and social workers there are.)
No-fault divorce was sold because people shouldn't be "forced" to remain married. But it's no more fair to force them to get divorced. At least the marriage they voluntarily chose at some point.
The fad for "covenant marriage" laws seems to have passed. But I see no reason why people shouldn't accept a simple, fair proposal with no religious trappings: treat marriage like any other contract. If two parties both want to rescind the contract, they can do so on whatever terms they want. But otherwise, the one who breaches the contract can claim no benefits under it and may be liable for damages.
How would this work in real life? There would basically be three potential divorce scenarios:
1. Both parties want to get divorced. They would draw up their own divorcing contract, negotiate between themselves who gets the kids, the house, etc. The court would then certify and enforce this contract, freely negotiated between the parties.
2. One party breaches the marriage contract in some way other than filing for divorce. (The classic grounds for fault: adultery, abuse, abandonment.) The other party can, if he or she wishes, file for divorce by establishing one of those grounds for fault. If they establish it, they are presumptively entitled to the children, the house, child support, etc., since they were injured by the breach of the marriage contract. (The other party can of course keep their own personal belongings and may have an equity claim to some portion of the marital property, as would be the case under any other contract.)
Some would say that this puts us back to the bad old days of evil, acrimonious divorces where everyone's dirty laundry is aired. Yes, and we're so far from that now. Does the name Jack Ryan ring a bell? Especially when children are involved, all that dirty laundry is going to be aired anyway, even if it has to be soiled for the purpose at hand.
3. One party wants a divorce but the other does not, and no fault is shown. In that case, the party who wants a divorce gets one--but that's all they get. In fact, they may be liable for damages (alimony, child support, etc.), to the extent the other party can prove them.
Now, there's nothing religious about that treatment of marriage and divorce--just simple, straightforward contract law. Who could object? And it would result in a nosedive in the divorce rate, as people discovered it wasn't worth the cost to go off and "find themselves."
And on the side, it might dampen the push for same-sex marriage. If marriage really was marriage, would they want it?