THE DIVORCE DECISION: The Legal and Human Consequences of Ending a Marriage

Common-sense commentary about divorce--particularly its often-downplayed disadvantages--by a West Virginia judge and informed critic of our legal system (How Courts Govern America, Why Courts Don't Work). The sad fact of divorce law is that ""the wicked tend to prosper and the innocent to suffer in spite of the best efforts of the courts."" Overall, the process denies emotional satisfaction to the divorcing parties, as complex relationships are dissected to fit into neat legal theories, while the system's inherent and irreconcilable tension (the inconsistent goals of flexibility vs. predictability of result) renders the outcome in any fact situation--child custody, for example--uncertain. Further, Neely argues, the courts must shape one set of substantive rules (increasingly oriented toward ""no fault"" divorce grounds and sex-neutral custody analyses) to fit many different constituencies: young, childless partners; couples with young children; and mature couples (who married under the ""old"" rules and now find these have changed). ""Reforms"" often do unintentional harm. Under newly-enacted, sex-neutral custody laws, for example, ""mothers routinely sacrifice necessary financial support in order to get custody of their children without a fight,"" since fathers who really don't want their kids now use the threat of a custody fight as leverage to negotiate a low alimony settlement. Neely emphasizes that the negative economic consequences of divorce receive scant attention: mothers of small children are almost always worse off financially after divorce, and enforcement of support decrees is a low priority task for prosecutors. Except in the case of a childless couple without substantial assets parting amicably, the economic and legal issues are too tricky to risk a do-it-yourself approach. (For example, the extent to which the parties' agreed contractual settlement is ""merged"" into the court's decree has profound implications.) Neely's bottom line recommendation: a ""thoughtful reevaluation of the desirability of divorce."" Approach it, he suggests, as we do smoking--avoid the spread of misinformation, so people cannot lie to themselves about its consequences, and make its social costs better known. While we're at it, fix what we can in the process (simplify custody laws by adopting a ""primary caretaker"" preference rule, upgrade support-award enforcement by establishing a national system funded by a small percentage of each award). Trend-bucking--but in line with today's best psychological and social thinking. In itself: provocative and crisply written.