Post-Divorce Conflict

While taking a continuing legal education course the other day, the instruction opened up with a stunning anecdote. He was at a restaurant having dinner with his ex-wife and their two children, while saving food for a doggie bag for her current husband. The waitress simply refused to believe that this was possible.

Some divorces are followed by prolonged high conflict between the ex-spouses. Other couples get along swimmingly when their only shared responsibility is co-parenting, rather than the full array of mutual responsibilities that come with marriage. I've seen estimates that in 30% of cases, or so, that the ex-husband simply exits stage left and disappears from the scene entirely. Divorces in cases where there are no shared children, are beyond the scope of this post, but are much simpler legally and morally -- having children, rather than consumation of a marriage, is really the key dividing line between the marriages in which the public has a stron interest, and those in which the only real concern is protecting the economic interests and expectations of the parties.

One of the realities of American divorce, which sometimes takes divorcing individuals a little while to get a handle upon, is that while you can move out and end the marriage, that you are locked into some sort of relationship with your ex-spouse, if you have children, at least until all of your shared children are emancipated. Some academics have described the American system of marriage as serial polygamy. I'd even venture to guess that there are probably more adults who have minor children from multiple living partners and maintain relationships with them via those partners in the United States right now, than there are in many contemporary polygamous societies, like Morocco and Saudi Arabia.

Every scenario has its drawbacks. Almost everybody agrees that high conflict post-divorce relationships are not good for children. But, even those who vehemently complain about the frequency of divorce in contemporary society do not dispute that divorce is appropriate for very high conflict couples.

Very low conflict, to the point of genuinely friendly, divorce couples are more confusing. On one hand, parents who are friendly to each other after a divorce are clearly doing less harm to their children than those who have high-conflict post-divorce relationships, and for that matter, are doing less harm to themselves emotionally. But, in these cases, it is hard not to wonder why they couldn't have stayed married, at least until their children were adults, and there is a growing body of evidence that appears to show that outside the highest conflict marriages, that staying married is much better for children than getting divorced, on average anyway.

The examples of societies and subcultures where divorce and separation are rare even where marriages are frequently arranged, of marriage before divorce was widely available, and of marriages saved by some sort of intervention or counseling, suggest that it would be possible to prevent a large share of the divorces that happen now, although it is less obvious that preventing these divorce would be an unequivocally good thing.

In cases where a parent, usually a father, disappears entirely, there is no conflict, which is a plus, but the children suffer the harm of growing up without a parent, and the absent parent usually provides only the most minimal of support, if any.

What predicts the kind of post-divorce relationship that a couple will have? I suspect, but do not known, that high conflict post-divorce relationships usually follow high conflict marriages, and that low conflict post-divorce relationships are most common following low conflict marriages.

Are there many low conflict marriages that end up producing high conflict relationships after divorce? If so, what distinguishes those cases, why did the couples break up, and what, if anything, could have saved those marriages? Are there many high conflict marriages that end up producing low conflict relationships after divorce? If so, what aspect of the divorce lowered conflict, and did the divorce make the children better off? Does divorce more often increase or decrease conflict between two parents, when it has an impact at all?

There is also the economic mystery. There is strong evidence that, on average, women suffer great economic hardship from divorce, while men tend not to experience nearly as great of an economic impact from a divorce. (Query if these data adequately consider the very high rates of swift remarriage after divorce properly). But, these is also anecdotal evidence that a large share of divorces, perhaps as many as two-thirds are initiated by women. The classic case is of the man who is stunned to arrive home one day, with the furniture, wife and children gone and a process server at the door delivering the divorce decree, who had no idea that his marriage was in trouble. Why should those most likely to suffer economic harm from a divorce be most likely to seek one?

This post doesn't have those answers. It is merely asking the questions.

In previous posts, I've looked at data that show that there is a strong social class and economic component to divorce, and to the parallel and corollated phenomena -- having children without getting married in the first place. The economic analysis tends to show that (1) divorces are much more common when a woman is less economically dependent upon her husband than when she is when she benefits economically from the marriage relative to what she would reeive in divorce, (2) women in poor and working class couples receive far less economic benefit from their male partners than women in middle class and upper middle class couples, (3) the likelihood of prompt remarriage to a better provider is a key factor in women's decision to end a marriage and is greater when a husband is not economically successful, and (4) uncertainty regarding and poor information regarding the economic outcomes of a divorce in court and in financial impact from splitting up a household can lead to decision making based upon overly optimistic economic expectations that don't pan out.

The economic intepretation of the disparity between middle class divorce and out of wedlock parenting rates, which are quite low, and those of working class families, again suggests that there are a large percentage of divorces that are avoidable if the right financial conditions are present. Contrawise, it suggests that strong economic pressures to end a marriage are hard to surmount with other measures, even though statistics show that couples are actually on average better off economically if they stay together even if they are poor.

The example of the European welfare states, which have the highest rates of non-marital childbearing, also support the economic analysis of divorce rates. The social safety net in those countries makes women far less economically dependent, and hence reduces the pressure on women to stay in a legal relationship with a co-parent. The conservative critique of the American welfare system as a driver of high divorce and non-marital childbearing rates in poor families also shouldn't be dismissed out of hand.

The lay interpretation of divorce as caused by conflict in marriage or similar failures of couples to love each other may be valid at the extremes, but other circumstances clearly have a powerful impact in a large swath of less extreme cases. This makes the question of determining who is harmed and who is helped in different subsets of divorces important from a policy perspective, and also makes understanding the causes of divorces critical to having any impact on divorce rates. For example, despite the fact that New York State is one of the hardest states in the United States to have a court grant a unilateral divorce in, it is not the state with the lowest divorce rate and is does not have a divorce rate that much lower than the nation as a whole. Changes in the grounds for granting a divorce unilaterally are not the most important fact in how many marriages end.

My intuition is that (1) public policy action to save more marriages when children are present is a good idea even if it involves considerable public expense (something also true in a large subset of child abuse and neglect cases where economic pressures are a major factor in child mistreatment), (2) the public policy action that would be most effective would be primarily economic and cultural in nature rather than adjustments in the process by which one is allowed to obtain a divorce, (3) it is feasible in some manner, although difficult, to screen high conflict marriages from lower conflict ones in a way that prevents economic pressures from keeping marriages that need to end from being forced to endure, and (4) it is possible to single out and better manage the legal process in minority subset of cases that have high conflict post-divorce relationships, in order to minimize the harm these cases cause to the children involved.