The apparent normative goal of modem divorce law is the efficient termination of unsuccessful marriages. Once the couple (or either party) determine that the marriage is no longer satisfactory, then quick and easy exit is deemed desirable. As Carl Schneider suggests, the law has withdrawn from moral discourse about divorce, adopting a neutral stance toward marital dissolution. Although divorce typically imposes formidable psychological and economic costs, there are few legal incentives to remain married, or even to consider thoughtfully the decision to end the marriage. Moreover, although decisions about marriage and divorce have important legal implications, the law does nothing to prevent or deter hasty or ill-informed choices by couples entering marriage.
The current stance of the law is understandable in its historical context. Divorce law of a generation ago conflicted with prevailing social norms and was frequently evaded or ignored. The movement from legal rules based on "fault" to "breakdown" grounds for divorce reflected a modem conception of marital dissolution. More precisely, it signaled a changed conception of marriage. Marriage is no longer a relationship reinforced by religious, moral, and legal restraints. Indeed, contemporary marriage has been aptly described as a "nonbinding commitment," a relationship that may begin with optimistic hopes that it will endure, but that survives only as long as each spouse's needs are met.
This conception of marriage and divorce, although apparently offering enhanced personal freedom, has seemed unsatisfactory to many observers. Some perceive the high divorce rate as symptomatic of deep societal dysfunction. Social critics have described with alarm the "culture of narcissism" in our society, characterized by self-gratification and the absence of commitment. Several legal scholars have suggested that the rhetoric of family law Should emphasize relationship and responsibility and speak less in the language of individual rights.
Contracts | Family Law | Law
Center for Gender & Sexuality Law
Elizabeth S. Scott,
Rational Decisionmaking about Marriage and Divorce,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/326