Divorce, American Style: An Interview with Bai Macfarlane

(Hat tip: Mark Shea)

Bai Macfarlane's interview with GodSpy:

Her high-profile Catholic marriage — and divorce case — has sparked a debate about the injustice of no-fault divorce and the tragedy of marital abandonment. We spoke to Bai Macfarlane about her struggle to reform civil and ecclesial marriage laws in the U.S.
"All happy families are alike; every unhappy family is unhappy in its own way."

If ever there was a couple to make a liar out of Leo Tolstoy, it seemed that Bud and Bai Macfarlane were it. As parents of four home-schooled young boys, and founders of Catholic media apostolates like the Mary Foundation, St. Jude Media and CatholiCity, they appeared—at least from a distance—uniquely happy in their role as young leaders of the "New Faithful" Catholic revival inspired by the pontificate of Pope John Paul II.

But Tolstoy's maxim reasserted itself early last year when Bud left the family and filed for divorce, accusing his wife of "extreme cruelty" and "gross neglect of duty"—charges Bai vehemently denies. Even worse, according to Bai, her refusal to give up home-schooling her sons—per Bud's demand—and to go along with the divorce, was twisted by the courts into an excuse to punish her by giving primary custody of her children to her husband.

The irony—in a story filled with ironies—is that while formerly irrepressible Bud has withdrawn from public view, Bai is now in the spotlight because of her new mission: to reform Catholic marriage and civil divorce in this country. Bai's fight is personal, but extends way beyond her marital problems. No-fault laws, she says, together with church diocesan policies that encourage marital abandonment and easy annulments, puts innocent spouses (and children) at a disadvantage in civil divorce cases and helps tear families apart. We talked to her about how the past year has shaped her view of these issues.

GodSpy: Bai, I want to be clear about what no-fault divorce is: One spouse can unilaterally divorce the other for no reason. How does no-fault affect society's view of marriage?

Bai Macfarlane: No-fault divorce makes people think that a marriage just "breaks." It makes people think they have no responsibility for repairing or working on their marriage. It's the idea that if you decide that your marriage isn't working, or if it's not giving you the satisfaction you expected, it's the normal thing—it's almost the brave or heroic thing—to move along. You can just try again with somebody else.

Even the term "no-fault" says no one is responsible...

Yes. A good example was the literature from our diocese's divorce ministry. It talked about divorce as if it were like a car accident—two drivers in a car accident, both kind of dazed, they get out of the cars, the police are there, and they don't really know what's going on. This infuriated me because it totally eliminates any culpability.

Before no-fault, divorce was a way to protect someone who was in a truly abusive situation. In those situations someone was at fault. But thanks to no-fault, there is no longer any sense of responsibility for a marriage, or any sense of the indissolubility of marriage at all.

No-fault divorce laws spread in the early seventies when a national group that was trying to get uniform divorce laws in all the states wanted to provide a way for a judge to grant an amicable divorce when both parties wanted to end the marriage. With fault divorce, one person is guilty of something, and that person loses out in the settlement. What happened was that when the American Bar Association's Council of the Family Law Section reviewed the suggested changes in the law, they also added the requirement that if a couple lived apart for 180 days the judge would automatically grant the divorce. Up until then judges had the discretion to keep a couple together when there was really no fault. What ended up happening was the absolute opposite. Now when one person wants out there is a bias against saving the marriage, a bias against the other person who wants to keep it together.

Can you be more specific about how no-fault makes divorce more likely?

In the old days when you went to an attorney for a divorce, that attorney knew he was going to have to prove some fault before he would accept you as a client. I think one of the damaging aspects is that there is a whole industry making lots of money on no-fault divorce. When one unhappy spouse goes to an attorney thinking "I might want a divorce," the attorney sees the unhappy spouse as next month's cash flow.

Also, no-fault puts a couple into war mode. Two people who are having serious marital problems go talk to attorneys, and the attorneys—unless they're exceptional—are bracing themselves for a battle. And the battle is going to be about money and kids.

For example, in my case I sought out lots of advice about how to repair a marriage that's in terrible shape. One of the repeated themes is—you make yourself very vulnerable. You accept responsibility for your personality quirks that have annoyed your spouse, and you apologize. Now, if I send one of these apology letters, and I list the things about me that I know irk my husband, and I say—I'm really sorry that I'm this way and I really believe we can work on this—that letter can show up in court and be used against me to demonstrate how horrible I am. You step into a war zone instead of a healing zone; you step into a trap.

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Previous Pro Ecclesia posts on this subject:
Law Professor Defends Marriage in Appellate Court: Says No-Fault Divorce Unconstitutional as Applied to Catholics

Legal Appeal Challenges Civil No-Fault Divorce

Ohio Woman Seeks Reform of US Divorce Law