Customized Marriage JAMES HERBIE DIFoNzo* There is nothing intrusive or overbearingabout offering the choice ofa stronger marriage contract accompanied by preparation and reinforcement to a generation seeking what many of its members did not have as children-the security of a two-parentfamily.' Would we be married,then? I said. What would be the need ofthat? he said. Marriagenever did any good, asfar as I can see; for if the two are of a mind to keep together, they will; and ifnot, then one of them will run off, and that'sthe long and short of it.2 TABLE OF CONTENTS INTRODUCTION: AMERICAN MARRIAGE AND DIVORCE AT THE DAWN OF THE TWENTY-FIRST CENTURY .............................. 876 I. THE PERSISTENT SHADOW OF FAULT IN NO-FAULT DIVORCE ............. 884 A. Divorce in England .......................................... 888 B. Putting Asunder in California .................................. 897 C. "The FinalStage in the Evolution of Divorce?".................. 903 II. THE DIVORCE COUNTERREVOLUTION .............................. 905 A. Fault,No-Fault, and FamilyLife ................................ 909 B. A Comebackfor Culpability? ................................... 916 C. "ChildrenFirst" . ........................................... 922 1m. OF COVENANTS AND SUPERVOWS: CONTRACTS AT THE ALTAR .......... 934 A. Save Us from Our (Later)Selves: Ulysses and the Sirens ............. 940 B. Hitting the Pause Button on Divorce ............................. 945 C. Covenant MarriageLaws: Enacting the Freedom To Make a Binding Commitment ........................ 949 D. The New Paternalismin the Guise of Free Bargaining ............... 957 CONCLUSION: DO-IT-YOURSELF MARRIAGE AND DIVORCE? .............. 961 * Associate Professor of Law, Hofstra University Law School. J.D., M.A., 1977; Ph.D. 1993, University of Virginia. E-mail: <[email protected]>. An earlier version of this Article was presented to the Working Group on Law, Culture & The Humanities, Georgetown University (Mar. 1998). My thanks to John DeWitt Gregory, Linda McClain, Norman Silber, June Carbone, Naomi Cahn, Jana Singer, and Ruth Stem for enlightening discussions of ideas and of drafts. Tricia Kasting provided outstanding bibliographical assistance, and Heather Golin, Ken Band, and Angel Aton served as diligent and delightful research assistants. Hofstra University Law School also offered support by way of summer research grants, for which I am very thankful. 1. Tony Perkins, Reforming Divorce Reform, PoL'Y INsIGHTs, Nov. 1997, at 2. 2. MARGARET ELEANOR ATWOOD, ALIAS GRACE 268 (1996). INDIANA LAW JOURNAL [Vol. 75:875 INTRODUCTION: AMERICAN MARRIAGE AND DIVORCE AT THE DAwN OF THE TWENTY-FIRST CENTURY Americans have always taken their pursuit of happiness to the altar, and the frequent failures of our marital enterprises have diminished neither our efforts nor our expectations. In a 1930 essay entitled RomanticDivorce, Katharine Fullerton Gerould identified "the American habit of acting promptly on our marital dissatisfactions,"3 a predilection stemming from "our seeing marriage as an intensely personal and an intensely romantic affair."4 Connubial individualism has a lengthy pedigree.5 The legal theory of marriage insisted that once wife and husband wed, the legal status of their marriage was placed almost exclusively in the state's hands. But this formulation was honored only in the breach and in the halcyon rhetoric of appellate opinions.6 For 3. Katharine Fullerton Gerould, RomanticDivorce, 88 SCRMNER'S MAG. 485,485 (1930). 4. Id. 5. In the words ofamodem family law scholar, Americans believe in a"fundamental right to marry, and marry, and marry." Mary Ann Glendon, The New Marriage and the New Property,in MARRIAGE AND COHABITATION IN CONTEMPORARY SOCIETIES: AREAS OF LEGAL, SOCIAL AND ETHICAL CHANGE 59, 63 (John M. Eekelaar & Sanford N. Fetz eds., 1980). A popular anti-divorce tract points to a "nagging paradox: Americans express a high regard for marriage and a great willingness to end marriages." MAGGIE GALLAGHER, THE ABOLITION OF MARRIAGE: How WE DESTROY LASTING LOVE 219 (1996). Nor is this sentiment new. See, e.g., Decency in Divorce, 127 NATION 214 (1928) ("American divorce used to be considered a scandal; it has become an institution. It used to be considered a menace to the home; it may come to be looked upon as a bulwark of marriage."); W.D. Howells, Editor'sEasy Chair, 140 HARPER'S MONTHLY MAG. 566, 566 (1920) ("In both [divorce and marriage] the main motive seems to be love, though the course of this popular passion is more circuitous in divorce than in marriage."); Doris Stevens, Uniformity in Divorce, 76 FORUM 322, 324 (1926) (stating that "easy divorce is a civilized thing" but the institution of marriage remains vital). See generally J. HERBiE DIFoNzO, BENEATH THE FAULT LINE: THE POPULAR AND LEGAL CULTURE OF DIVORCE IN TWENTIETH-CENTURY AMERICA 43-61 (1997) (describing the popular and legal support for divorce in the 1920s). 6. The Supreme Court limned the three-party social contract of marriage over a century ago in a case in which it condemned the "loose morals and shameless conduct of the husband" as "meriting the strongest reprobation," but nonetheless declaimed marriage as a lofty ideal: Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. ... The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888). These oft-cited formulations of marriage's moral purity are at odds with the opportunistic conduct at issue in the case. The husband left his first wife and children in Ohio in 1850 and headed for the Oregon Territory, promising to continue to support them and either to return within two years or to send for them. But the husband reneged on his promise of support and instead abandoned them. He then secured the passage of a legislative act in the Oregon Territory granting him a divorce from his first wife, and soon afterwards married again. The Supreme Court condemned the husband's behavior 2000] CUSTOMIZED MARRIAGE at least a hundred years, argued Gerould, Americans "have envisaged marriage as a purely individual, not at all as a social, contract, and have refused to consider any marriage successful that did not maintain, for both parties, a high romantic satisfaction."7 We pay a price in this quest for "white-hot emotional perfection,"' of course. And Gerould judged the matter correctly, for her generation as for its successors: "As long as personal happiness is made the only desideratum in marriage, the divorce courts will be full."9 But even the equable Gerould would likely have been astonished had she lived to see just how full divorce courts became in the wake of the no-fault divorce revolution.'0 Between 1970 and 1996, the number of divorced Americans more than quadrupled, from 4.3 million to 18.3 million." Although the divorce rate declined but held that the territorial legislature had the power to award the legislative divorce. See id. at 210. This lack of congruence between legal theory and reality in domestic relations developed in the infancy of American history. See NORMA BASCH, FRAMING AMERICAN DIVORCE 38-39 (1999) (describing post-Revolutionary pressure for consensual divorces); MARYLYNN SALMON, WOMENANDTHE LAW OF PROPERTY IN EARLY AMERICA 58-80 (1986) (describing colonial practice of "wife sale" and arbitrated extra-legal divorces). 7. Gerould, supra note 3, at 486. Gerould's reference in 1930 to the passage of a hundred years constituted more than rhetorical flourish. The 1830s marked the beginning of a public argument between feminism and the "ideology of domesticity," focusing on tensions in the hierarchical relationship between men and women. NANCY F. CoTr, THE BONDS OF WOMANHOOD: "WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835, at 5-9 (1977); see also MICHAEL GROSSBERG, A JUDGMENT FOR SOLOMON: THE D'HAUTEVILLE CASE AND LEGAL EXPERIENCEIN ANTEBELLUMAMERICA (1996) (case study ofAmerican marriage in the 1830s, documenting the early inroads of romantic individualism into the realm of matrimonial hierarchy). 8. Gerould, supra note 3, at 486. 9. Id. In this view, divorces are aproduct of our cultural assumptions about marriage. See David L. Cohn, Are Americans Polygamous?, ATLANTIC MONTHLY, Aug. 1947, at 30, 32. We teach our young that to be married is automatically to be happy. We believe that everybody is, ought to be, or can be made happy; that all are "entitled" to happiness as to fresh air. But simultaneously, in our anarchy of impermanence, we believe that if we are not happy in one marriage we shall surely be happy in another. Id. at 32; see also Christopher Lasch, Divorce American Style, N.Y. REV. BOOKS, Feb. 17, 1966, at 3, 4 ("Easy divorce is a form of social insurance that has to be paid by a society which holds up domesticity as a universally desirable condition ....). 10. On the history of modern no-fault divorce in the United States, see DIFONZO, supra note 5.See also HERBERT JACOB, SILENT REVOLUTION: THE TRANSFORMATION OF DIVORCE LAW IN THE UNITED STATES (1988); GLENDA RILEY, DIVORCE: AN AMERICAN TRADITION (1991). Roderick Phillips provided a good international overview ofdivorcetrends in the West in RODERICK PHILLIPS, PUTrrING ASUNDER: A HISTORY OF DIVORCE IN WESTERN SOcIETY (1988). 1I.See CENSUS BUREAU, U.S. DEP'T OF COMMERCE, Numbers of Divorced and Never- MarriedAdultsIncreasing, Says Census Bureau Report (visited Apr. 13, 1998) <http://www. census.gov/Press-Releaselcb98-56.html>. The question whether no-fault divorce resultedin the booming divorce rates is problematic and beyond the direct scope of this Article. Note, however, that a causative relationship is central to the no-fault divorce "counterrevolution." Compare H.