June 28, 2015

The Marriage Mess

Same with Bob and Billy. Maybe Bob meets someone else or Billy, once grown up, once to marry someone properly. They get a quick divorce and off they go.
Has anybody thought all of this through? There doesn’t seem to be evidence of it.
If they have thought it through how then will they stop such abuse of the law? - Fr. Dwight Longenecker
Fr. Dwight...has it right. (Pardon for that.)

The next steps in this game are to legalize polygamy (used as a broad term for marriage with more than two individuals involved), incest, and any number of other relationships formerly considered illegal and taboo, with an eye towards eradicating the taboo, as well as the law. As described by one author in The New Republic:
My hope is that marriage equality queers marriage, rather than straightening queers—that we reinvent it and keep reinventing it, and sexuality is finally acknowledged as having no inherent moral value except, perhaps, when it is ignored.
Having practiced law for several years in the domestic relations field (divorce, child support, etc.), I can say with certainty that this "new way of doing business" will prove absolutely disastrous in terms of legal relations, especially involving children. It will, however, prove a boon to attorneys who want to practice in the area.

Marriage, with its traditional prerogatives related to rights in relationship and children, to non-interference of the state, and to care, companionship, and sharing in property, provided the simplest and easiest way for a couple to organize their entire legal life together without much expenditure on attorneys and courts. Marriage provided rights in retirement accounts, insurance, and other benefits of one's spouse with little need for great forethought.

With the advent of no-fault divorce, and the rapid rise in the "non-marriage" culture, especially among the lowest classes, legal relations became much more complex. Among the upper classes, with access to attorneys and knowledge, marriage has often become much more of a "planning for divorce" event. Few women lack a career and / or education of their own, many couples keep separate bank and expense accounts, and often have complex prenuptial agreements in the event of one or both having independent wealth or inheritance. Such prenuptial agreements can even plan, though they may be ignored by courts, provisions for child support upon divorce. After a divorce and re-marriage, such couples have access to attorneys to plan for distribution of their estates to children of first marriages, etc. In the event that the couple never does marry, but forms a de-facto marriage, they have access to attorneys to contractually plan and allocate property and write separation agreements, similar to prenuptial agreements, but without the "nuptials" to complicate things.

As an aside, the above statement from the author is nearly ironic in that his dream, "gay marriage" legalized or not, is in full steam, and his statement is more of a marker than a prediction.

This is quite different than the lower classes in our present situation. Many will choose to have children at a very young age (say 15 - 21), when unmarried, and will not marry their child's father, often at his preference, but the reverse is not unusual, as the woman realizes that the baby's father is in no real sense a father or provider. This pregnancy necessitates either the signing of a paternity certificate in the hospital or soon after by the father (as the presumption of being a child of the couple does not exist in an unmarried couple), and usually, the execution of a paternity suit if the father wants visitation rights and the mother wants child support payments. The times when the couple end up together, acting as a married couple, are astonishingly small, especially over time. Quite often, the father and mother are under-employed, or not employed at all, and both are on state-assistance. However, the father is imputed minimum wage, and will immediately begin falling behind on child support. In 2012, Indiana parents were collectively $2.3 billion dollars behind, 95% fathers.

Such is the situation in which we find ourselves.

Into the midst of this rather stormy harbor comes the ship of loose legal relationships - not loose in the old moral sense, but rather flexible, malleable at will, but also partaking of legal binding in the sense that they are recognized and approved by the state. The law is not now equipped to handle such relationships, in any sense, and may never be, even with sweeping changes. Even contractual, written, considered, arrangements will have difficulty coping with the situations.

Let me give a few examples. Some will already seem familiar and are currently complicating the legal landscape. With legal recognition of polygamy, serious problems of custody, visitation, and support will arise, making the current complexities seem trivial by comparison. The law, for the most part, has now been based upon biological relationship - absent termination of parental right or adoption, biological parents were presumed to be responsible for, and have rights in (so to speak) their children. Divorce or separation resulted in the child spending part of the time with one parent, part with the other. This, without much doubt, has resulted in many children who experience greater feelings of dislocation and despair. Now, in the case of plural marriages, even with the consent of all adults involved, the children adopted or parented by the initial three (presuming born or adopted to a three-way couple, in this example) will still experience a shifting in and out of members of the marriage (I do not expect that stability of an institution of an already destabilized by no-fault divorce) - in short, multiple divorces over the course of a lifetime. While the law, at this point, presumes adoption by only two people, if there is a right to polygamous marriage created in law, then a right to three-way adoption will as well - how could it be denied? "Heather Has Two Mommies" will need to be revised and expanded to "Johnny Has Two Mommies, a Daddy, A Step Mother, and Two Stepfathers," plus a myriad of sisters and brothers and half-sisters and half-brothers. 

The above presumes that the parties even actually marry, which seems increasingly unlikely in this culture. In fact, strangely, the above scenario may be what many children in the lower classes experience in this county already in the worst cases - a shifting web of multiple partnerships in which the custodial parent has many partners moving in and out of his / her life. 

This does not begin to approach the problems with legalization of incest (imagine a parent raising a son or daughter with the sneaking suspicion that one is raising a replacement - looking and acting like oneself, but 20 years younger), or other, more...creative...relationships, but I do not think it requires much imagination, given my examples above, to consider the serious problems which will arise.

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