Amendment One Update

As an update, I have pasted below a blog post from the Greensboro News & Record from a group of Family Law Professors from the various law schools in North Carolina:

As usual, Doug, your comments are thoughtful. But family law professors from every law school in the state – including Campbell – agree with the UNC white paper on the dangers that Amendment One poses to domestic violence protection for unmarried couples. The Campbell white paper ignores a critical distinction between the Ohio amendment and Amendment One. The Ohio Supreme Court eventually concluded that the Ohio amendment did not require denying domestic violence protection to a victim unmarried to her abuser. But the Ohio amendment merely prohibited THE STATE from CREATING a legal status for unmarried relationships. Amendment One is much more far-reaching. Amendment One declares that the only “domestic legal union” that the state shall find “valid” or “recognize” is a marriage. In other words, all other “domestic unions” are “illegal,” or “not lawful.” Surely, lawyers who represent batterers who live with victims to whom they are not married will argue for this interpretation. I certainly hope that ALL the district court judges in the state who hear this argument will reject it, which seems a vain hope indeed. And I hope that when after some district court judges accept the argument, the appellate courts of this state will eventually reject it. But how much domestic violence are we willing to tolerate until that happens – assuming the appellate courts reject the argument? There is no reason to tolerate any. Marriages in North Carolina have been limited to a man and a woman for 150 years. Fifteen years ago, we passed yet another marriage statute, making clear that if same sex couples marry in a state that permits their marriages and then move to North Carolina, North Carolina will not honor their marriages. If Amendment One is defeated, which I fervently hope it will be, nothing changes. Marriages in North Carolina will continue to require the “consent of a man and a woman,” as they have for 150 years. If Amendment One passes, things change: unmarried families – some of whom are prohibited by the state from marrying – are a lot less safe. That’s why family law professors from every law school in the state – including Campbell – have joined this statement:

We are family law professors who teach at every law school in the state of North Carolina. We speak on behalf of ourselves, rather than our institutions. Based on our professional expertise, the language of the proposed North Carolina amendment is vague and untested, and threatens harms to a broad range of North Carolina families. The amendment is phrased more broadly than most similar amendments in other states, and would therefore likely be construed by courts more broadly than in other states. The amendment would certainly ban same-sex marriages, civil unions, and domestic partnerships, and would very likely ban the domestic partnership health insurance benefits that a number of municipalities and counties currently offer to same- and opposite-sex unmarried couples. It also threatens a range of other protections for unmarried partners and their children, including domestic violence protections and child custody law. We are aware that some law professors at Campbell Law School think otherwise. In our view, this disagreement simply underscores the fact that Amendment One is vaguely worded and that it is not possible to know how broadly it will eventually be construed.

April 20, 2012

Jean Cary
Professor of Law
Campbell Law School

Scott Sigman
Associate Professor
Charlotte School of Law

Katharine Bartlett
A. Kenneth Pye Professor of Law

Kathryn Bradley
Professor of the Practice of Law
Director of Legal Ethics

Carolyn McAllaster
Clinical Professor of Law
Director, Duke Legal Project
Duke Law School

Sonya Garza
Assistant Professor
Elon School of Law

Kia H. Vernon
Assistant Professor of Law
North Carolina Central School of Law

Maxine Eichner
Reef C. Ivey II Professor of Law

Holning S. Lau
Associate Professor
UNC School of Law

Jennifer Collins
Professor of Law

Suzanne Reynolds
Executive Associate Dean and Professor of Law
Wake Forest School of Law

The Soul Mate Myth?

Many authors and theorists have proposed that the idea of a “soul mate” is a basis for our high divorce rate. 

The summary of this argument is that if you believe that your soul mate is out there, then you believe that marriage will work if you just find the right person. 

Thus, if marriage gets hard, then you married the wrong person.   

In short, believing in a soul mate is believing that marriage is about the other person's personality, not our own efforts.  Or, so the argument goes.

Timothy and Kathy Keller argue against the soul mate idea in their recent book, The Meaning of Marriage. The following excerpt succinctly makes their point:

 You never marry the right person

The Bible explains why the quest for compatibility seems to be so impossible. As a pastor I have spoken to thousands of couples, some working on marriage-seeking, some working on marriage-sustaining and some working on marriage-saving. I’ve heard them say over and over, “Love shouldn’t be this hard, it should come naturally.” In response I always say something like: “Why believe that? Would someone who wants to play professional baseball say, ‘It shouldn’t be so hard to hit a fastball’? Would someone who wants to write the greatest American novel of her generation say, ‘It shouldn’t be hard to create believable characters and compelling narrative’?” The understandable retort is: “But this is not baseball or literature. This is love. Love should just come naturally if two people are compatible, if they are truly soul-mates. “

The Christian answer to this is that no two people are compatible. Duke University Ethics professor Stanley Hauerwas has famously made this point:

Destructive to marriage is the self-fulfillment ethic that assumes marriage and the family are primarily institutions of personal fulfillment, necessary for us to become "whole" and happy. The assumption is that there is someone just right for us to marry and that if we look closely enough we will find the right person. This moral assumption overlooks a crucial aspect to marriage. It fails to appreciate the fact that we always marry the wrong person.

We never know whom we marry; we just think we do. Or even if we first marry the right person, just give it a while and he or she will change. For marriage, being [the enormous thing it is] means we are not the same person after we have entered it. The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.

Their point is made from a Christian perspective.  But, the point stands regardless of religious or spiritual issues:  “The primary challenge of marriage is learning how to love and care for the stranger to whom you find yourself married.”

Food for thought for those married or wanting to be married.  I certainly see the soul mate belief echoed in many clients and their spouses.  

I don't know whether the soul mate belief contributes to our divorce rate, and we may never know for sure.  But, I do think some serious consideration of the issue helps immunize a marriage from divorce.

Hidden Damage of Divorce: Revisionist History

Frankly, I don’t know the psychological term for it.  Maybe revisionist history is appropriate.  I seem to remember that the term “incongruence” may play into it.

But, whatever it is called, there is an odd (but predictable) event that frequently happens with divorcing couples.  Let’s call it the “contamination effect”. 

When a couple decides to separate, the disharmony of the tail end of the marriage somehow contaminates the rest of the marriage.  Sometimes one or both spouses look back on the whole marriage through the same lens that they view the separation or divorce.  The emotions of the very end of the marriage retrospectively color their view of the entire marriage.  Some couples even start playing the marriage over in their head looking for reasons to convert good memories of moments in their marriage to bad memories.  The phenomenon is displayed visually in this video.

This often becomes more prevalent as the legal fighting ramps up through adversarial negotiation and court battles.  In my experience, the worse the divorce gets, the more the couples’ view of their marriage is likely to be distorted.

And that phenomenon creates a lot more unnecessary destruction.  There are enough tough repercussions of divorce.  Couples should not have to lose the positive memories of their marriage in a divorce.  In fact, I suspect that this kind of thinking is what causes many people to give up on marriage once they have been divorced.

That is just one more reason why it is important that each couple make an educated decision about their divorce process.  Choosing a divorce process that does not create more hard feelings can be very important.  Honoring the years of marriage while creating a plan for each party to move forward can help couples leave a marriage without having to entirely revise their memories of the past. 

Update on Wednesday, October 12, 2011 at 11:12AM by Tre' Morgan

Interestingly enough, I had a discussion with my dental hygienist yesterday on this very topic.  (And yes, it is hard to do that while you're having your teeth cleaned.  I had to speak very quickly between rinses and suctions.)

The interesting part to me was that she was very surprised at my contention that a marriage does not have to last forever to be considered successful.  My point was that if a marriage is good and healthy for 20 years, but then ends, then I would hate to call that marriage a failure.  What about the 20 years of good marriage?  Where did that go?

Which leaves me to wonder whether we as the public believe that only marriages that last the rest of our lives can be considered successful?

Divorce Party: Honoring the Marriage in a Divorce

I just recently heard about divorce parties.  While I don’t know anybody that has thrown one, I think that the idea behind them has some wisdom and merit. 

This article about Jack White and Karen Elson’s divorce party points out that a divorce party can be a good thing.

White and Elson threw their party to “honor our time shared.”  

While it is admittedly idealistic, the idea of honoring the time that a married couple spent together, even after a divorce, seems like a valuable exercise.

After all, even in the case of divorce, the time during the marriage has value.  Often that time produces at least some good times for the couple.  It has often led to valued relationships with in-laws and friends.  And, given that many marriages produce children, that time cannot be simply discarded as wasted. 

I may well help the healing process of divorce for a couple to honor the marriage, even though it is ending.  After all, that time cannot be forgotten, cannot be recaptured and cannot be changed.  Choosing to view it in solely a negative light is often both unrealistic and unhealthy. 

While that doesn’t need to involve a divorce party in every case, it is worth acknowledging the value of the time spent together to help both people move forward in health.

Does Making Divorce Easier Protect Marriage?

I recently had a conversation with a Collaborative Divorce attorney in Rome, Italy (the internet is an amazing thing).  He told me that in Italy, a couple has to wait 5 years before a court will grant a divorce. 

I was stunned, as even the longest “cooling off” periods in the United States are not that long. 

He indicated that this lengthy waiting period might be having an interesting effect on marriage rates in Italy.  He felt strongly that the lengthy waiting period was actually driving the marriage rate down.  He observed that young people in Italy were more reluctant to get married because it was so hard to get out of the marriage if it went poorly.  He even indicated that this was a factor in a falling birth rate in Italy (apparently Italians are less inclined towards single parenthood than Americans).

In the Southern United States, and North Carolina particularly, laws are designed to protect and promote marriage.  North Carolina requires a one-year separation period before either party can even ask a court for a divorce.  Ostensibly, this is to prevent people from making hasty decisions about divorce.  The thinking is this: “If we make it hard to get divorced, then less people will get divorced.”

The Italian situation presents an interesting question though:  At what point do the lawmakers’ efforts to protect marriage actually start backfiring?  Is it possible that people in this country or this state are less inclined to marry because divorce is so hard?  Is it possible that our divorce laws are actually driving down the marriage rate, instead of driving down the divorce rate? 

I am not aware of any scientific research on this topic.  But, it presents an interesting policy debate.  Perhaps marriage as an institution is best served by making divorce easier, instead of harder.