Must we accept unilateral divorce?

Maggie Gallagher

5/29/2003 12:00:00 AM - Maggie Gallagher
In 1988, David Blue and Pamela Ford decided to get married. Again. The ink from the first divorce papers was barely dry when the winds of love blew them back together. This time, though, David and Pamela signed a pre-nup. It was a pretty standard agreement.

When you marry, the state draws up an implicit contract for you. Nowadays in most states it includes an absolute right to divorce at any time for any reason. Your property and child custody will be distributed according to rules set by the government. Child support and alimony or maintenance will also be established by the courts.

But suppose you don't like this deal the government offers. Most states now let you offer your beloved a prenuptial agreement to make sure that, in the event of divorce, she does not get too much of your money. "With all my worldly goods I thee endow," except for the really big bucks, of course.

David and Pamela's agreement was a fairly standard attempt to define David's liability: Pamela would get $30,000 for each of the first five years of marriage, and $40,000 for each year afterward, in the event of divorce. But there was a twist. Pamela and David agreed: If David wants the divorce for any reason except her sexual infidelity, his payoff obligation leaps by 50 percent.

Fast-forward a decade: David is now worth $24 million. Pamela and David get married and live the high life: no kids, expensive homes in Boca Raton, Fla., and Louisville, Ky. Pamela files for divorce, and David counterfiles.

Is a pre-nup clause conditioning the financial settlement, based in part on who wants the divorce and why, legal and binding?

In Kentucky, the answer is yes. (Read the latest court decision in the ongoing Blue v. Ford divorce saga at http://pub.bna.com/fl/021078.pdf.)

This is a potentially important legal development. We live in a world where individual choice is exalted as the highest good. The general principle of family law is becoming "whatever kind of family you want." Even the idea of parenthood is being deconstructed, with proposed new legal rules that break open the all-or-nothing idea that a child has but one father and one mother.

To this general rush to embrace choice, there is one significant exception. Suppose instead of trying to limit your liability in divorce, you want to give more of yourself in marriage than the standard unilateral divorce contract allows. Say -- just say, mind you -- you want to sign an agreement with your fiance to make a traditional Catholic marriage, where divorce is not allowed and the most a court can do is order separation of bed and board: child support and property division, sure, but no right to remarriage. Or suppose you want an old-fashioned Protestant marriage covenant, where divorce is permissible only for serious cause like adultery or physical cruelty. What do we think of people such as that?

No, no, no, legal elites have heretofore maintained: People should be free to make virtually any kind of family they want, except any kind of traditional marriage. Where once prenuptial agreements that contemplated divorce were viewed as a violation of public policy, the trend nowadays is to strike down any attempt to limit the right to divorce, no matter how devoutly desired, as a violation of public policy. The good of divorce deserves more protection than the right to marry.

What if Kentucky of all places starts a trend? What if more and more traditional religious people -- Jews, Protestants, Catholics, Hindus -- try to draw up more binding marriage contracts? What if people really, really want to say, for better or worse, until death do us part? Will the law let us?

It will be interesting to find out.