"The Common Clause" (poem) >>> A Criticism of No Fault Divorce

@derangevisions and I have had some wonderful exchanges in the comments sections of posts over the past few day. He's a good guy and I'd recommend you check out his feed.

Following is a response I made to one of his comments which appeared on this recent post. I thought it worth it's own post. Our society has undergone some pretty radical changes over the past few decades and nowhere is that more apparent than in divorce courts. We've now had No Fault Divorce for more than 40 years and the concept has spread throughout the world. 

Was this a step in the right direction?

I think not. The reason is that human beings are judgement-making machines. Despite the current obsession with *"not judging each other,"* neuroscience tells us that we may as well ask each other not breathe air. Assigning responsibility (fault) is one of the most fundamental things our brains do in interpersonal interactions gone awry. We seem, nevertheless, to be suffering under the delusion that we can do otherwise.

We seem to be having a problem with reality-testing, separating fantasy from reality. We seem to want to shape society to reflect *what we'd like human beings to be* versus *what they really are.* A world justified by *ideological assertion* instead of *scientific fact.*

The statistical results have not been pretty. 

The reply:    

Here's the thing: Human beings are social animals. We do not live on a  mountain-top by ourselves. We live together in groups. When you live in groups, there have to be rules or, if not, there will be chaos. Inevitably, having rules impinge upon individual freedoms.

There's no way around it. 

So, a balance is sought. The proper place to draw the line is, of course, hugely subjective. So, formally or informally, we take a vote. Either directly by referendum/election, or informally, through the creation of social mores. The people who fall outside the prevailing norms inevitably feel  oppressed. 

And so, they form In-Groups of like-minded people so as to  increase their collective heft, and thus, attempt to change the status quo or, at least, survive within it. The result is a pendulum swinging back and forth between extremes. Conservative/Liberal ... Ying/Yang. 

In a YouTube conversation between noted professors, psychologists and authors, Jordan Peterson and Johnathon Haidt, Peterson likens it to the movement of a snake, an apt metaphor in my opinion. The undulating left/right slithering resulting in straight line progression, which is the average of the motion of the two extremes. 

In-Grouping works the same at all scales, whether families or nations. We are stronger together than we are apart so we unite for common cause. The problem, of course, is that nothing is free. The price for such increased cumulative strength is the necessity to trust In-Group members. By increasing outward focus, so as to take on the world, one inevitably decreases in-ward focus ... because someone else has your back. Everyone in the In-Group makes themselves vulnerable to each other. 

So long as everyone adheres to the rules, often memorialized by oaths  and ceremonies to ensure that there will be no doubt as to what the rules are, the Group is golden. But the moment you introduce a betrayer, you've got an existential crisis on your hands ... for the entire Group. Either that betrayer has to be punished or ostracized (a term derived from ancient Athens which meant to exile a citizen for 10 years on the basis of a public vote. This was usually done so as try to neuter potential tyrants or decapitate power-groups that threatened the  democracy of the city.) 

But what happens if a society not only forbids betrayer punishment/ostracization ... but punishes/ostracizes the subject of the betrayal? That is precisely the state affairs in western divorce courts today. 

No Fault Divorce. 

Not only are betrayers (adulterers) not punished/ostracized, arguing that they ought to be is viewed as "parent  alienation," which may well be grounds for losing even half custody. 

You are no longer allowed to morally elevate Loyalty over Betrayal ... and if you do, you will be punished. 

Let that sink in. 

Imagine for a moment that we strip sex out of it ... because every issue involving sex seems to make everyone lose their minds. 

Try to concoct a circumstance, no matter how fanciful, where the  government gets to enact a law separating faultless parents from their  children ... for half of their childhood. Half of their Birthdays, Easters and Christmases. Half of their summer vacations and half of their ... Tuesdays. There would be an armed rebellion within 24 hours, unless a military coup d'etat preempted it. And yet, this is precisely what 50\50 post-divorce custody entails. 

Now if both parents were equally responsible for the dissolution of  the marriage, then fair enough. But what if they're not? What if Mommy was banging her boss or Daddy was banging a waitress at Hooters? Oh, excuse me ... Making Love. Two families destroyed. 

Two families financially devastated. The loss of two homes and much, if not all, of the marital assets (lawyers are expensive). And, the skyrocketing of the probability of the children falling prey to every social ill one could imagine: Poor grades, non-graduation from high school, illegal drug use, teen pregnancy, juvenile delinquency, criminal records and an inability to romantically pair-bond (to name but a few). 

All this just so we can adjudicate with having to pass judgement. 

No Fault Divorce was launched in the US by the State of California under the Governorship of Ronald Reagan (Oklahoma was first, but it did not spread until California made it into law). According to Michael Reagan, Ronald Reagan's son, (extract from "Twice Adopted") it was one of his greatest political regrets: 

And why did Ronald Reagan, the pro-family conservative, sign such a  law? I believe that some of his reasons were personal. Notice that Dad  signed the no-fault divorce law some twenty years after going through  his own divorce. His wife, Jane Wyman, had divorced him on grounds of  "mental cruelty." Even though listing grounds for divorce was largely a  formality, those words were probably a bitter pill for him to swallow. He wanted to do something to make the divorce process less acrimonious,  less contentious, and less expensive. 

Dad later said that he regretted signing the no-fault divorce bill and that he believed it was one of the worst mistakes he ever made in  office. That law set in motion one of the most damaging social experiments in the history of our nation. Not only did the divorce rate skyrocket as a direct result of the no-fault experiment, but divorce conflicts and legal costs remain as ruinous as ever. The acrimony in divorce has simply shifted to different issues. Instead of fighting over who gets blamed for what, couples battle primarily over custody, visitation rights, and child support. 

Dante understood the dynamics. He understood that healthy group-formation, at all levels, is the bedrock of social order, and without it, societies implode, causing untold misery. Betrayal is the cancer of healthy group existence. He understood that the highest moral good, as has been articulated by every moral code ever invented, is self-sacrifice for the good of the group. Or, as Spock would so memorably opine as he lay dying, *“Logic clearly dictates that the needs of the many outweigh the needs of the few.” And, as Captain Kirk would answer, “Or the one.” 

We cannot have it both ways, as both Loyalty and Betrayal are defined by being each other's opposite. It is difficult to imagine how we can cohere as a society without elevating the former over the latter.