The big divorce news of the week

The New York Times reported that the national divorce rate was down this week. I saw the first posting about this on Taking Down Words (which has some interesting commentary to the post) but the Divorce Prof Blog also has a post on the news. I am not linking directly to the story on the Times site because I think that the Times' policy is to make people pay for older posts (and Divorce Prof has a link to the original article). Here is how Divorce Prof Blog reported the news:

The New York Times reports that the national per capita divorce rate has declined steadily since its peak in 1981 and is now at its lowest level since 1970. The article points out that experts disagree asto the cause. Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

In the original article, this paragraph caught my eye:

The number of couples who live together without marrying has increased tenfold since 1960; the marriage rate has dropped by nearly 30 percent in past 25 years; and Americans are waiting about five years longer to marry than they did in 1970.

I read this as showing that cohabitation is on the rise. I suspect from what I see in my practice that the less affluent mentioned in the first quote and those choosing cohabitation probably include many of the same people. At bottom, too many marriages end for financial reasons.

Another paragraph in the Times' article also caught my attention and made me grit my teeth:

Adding such factors together, Patrick Fagan of the conservative Heritage Foundation sees a bad situation.

''Cohabitation is very fragile, and when unmarried parents split, for the child it might as well be a divorce,'' Fagan said. ''Among those who are marrying there's increased stability, but overall the children of the nation are getting a rawer and rawer deal from their parents.''

Mr. Fagan is an idiot. Divorce gives children a raw deal that our legal system is not designed to deal with in any realistic manner. Indiana law provides for parental rights (visitation) and obligations (child support) under the heading of paternity cases. What paternity courts cannot deal with are property issues between parents. Paternity courts cannot order maintenance (Indiana's analog to alimony which is generally only for the duration of the divorce) for the custodial parent. Although knowing the stinginess of some of our divorce courts, I am not sure that maintenance provides much comfort in a divorce case.

Cohabitation just presents an additional problem for the people with children by causing a financial eruption without the remedies provided by Indiana divorce law. I would suggest a cohabitation agreement but the people I have in mind at this point do not have the money to pay for such an agreement. If Mr. Fagan wants to do right by the children of this country, he should consider the economic condition of those parents and their children. For those people, perhaps we should consider a return to alimony (for anyone reading this outside the borders of Indiana, we have not had alimony since about 1973).

Stability can come for those who have the foresight to enter into a cohabitation agreement. Divorce law creates a public safety net for those married but that safety can be approximated in a private agreement.