Family is the primal unit of society.  Men and women have obviously always met and produced offspring.  Successful marriages conserved energy and allowed the marriage partners to pursue other activities that are necessary for human advancement.  Maslow identified sex as a basic need.  It is packed with motive force.  Freud called the driving force that pushes humans into action libidinal energy.  Although libidinal energy is often associated with sex, it can be redirected for other creative effort.  When marriage works, the sex needs of both partners are met, without spending energy searching for a mate.  Energy savings resulting from successful marriages frees energy to promote other creative activities. 

Tribes and clans developed marriage customs and rules to handle the problem of orderly mate selection.  It is difficult to imagine families independent of communities.  Every culture has customs and rules about marriage, although the customs and rules vary considerably.  Religion plays a role in the mating process. Despite notable examples of Old Testament polygamy, Christianity strongly endorsed monogamous marriage.  The Judeo-Christian heritage played a large role in the development of our beliefs about family.  During the Middle Ages, the Catholic Church, rather than nation state legal systems, actually controlled marriage and divorce. Strong beliefs about family held the system in place. 

Modern nation states emerged at the end of the Middle Ages, and wrested control of marriage and divorce from the church.  England’s Henry VIII split the Church of England from the Catholic Church in 1534, just 17 years after Martin Luther kicked off the Protestant Reformation in Germany with his 95 Theses in 1517.  Henry wanted a divorce.  And in due course of time, as the power of nation states evolved and increased, divorces came to be controlled by the State.  States assigned the responsibility for divorces to Courts.  However, states continued to recognize the importance of family, and placed tough restrictions on divorce. 

The idea of falling in love, getting married, and living happily ever afterwards has a rich heritage.  In our culture, romantic love attracts potential marriage partners to each other.  Other cultures have successfully handled mate selection differently.  In our agrarian economy of yesteryear, after “falling in love” and getting married, the couple became an economic unit that operated the farm, or a business in a small town, surrounded by a community and churches that reinforced the requirements of monogamous marriages.  The resulting family—father, mother and children—became an economic unit.  The Strong emotional dependencies within the family played an important part of the development of children. 

The romantic love attraction, and expansion of an agrarian economy worked well in the early development of the United States.  Arduous farm labor was the best way to put food on the table, and the need for superior male physical strength in frontier farm conditions supported and helped maintain traditional beliefs about roles of the sexes.  Male physical strength remained important during the industrial revolution.  Men were good at “working on the railroad, all the live long day.”  Public education that sprang up during the industrial revolution did not damage the family system.  Most of the population remained on the farm well into the Twentieth Century.  But subsistence living on the farm could not support a continually expanding population, and all of that was about to change.

The Great Depression proved that subsistence farming could not feed the growing national population.  Then World War II and the need for ships, airplanes, bombs, guns, ammunition and supplies transformed the economy.  We developed systems of mass production and distribution for all of life’s essentials.  We, as an entire society, learned to function corporately.  We learned to use the factory method and specialization to more effectively produce necessary goods to meet all our needs.  Major cultural evolution occurred.

Women left homes and farms for factories and offices.  After the War, technology supplanted the industrial revolution.  Brains became more important than brawn.  Information became the prime commodity.  Women could deal with technology just as effectively as men.  They stayed in the offices and factories after the war.  Men and women spent less time with their spouses than with other members of the opposite sex, to whom they were not married.  Romantic love that had worked well in the agrarian economy was disastrous in the offices and factories required by the military/industrial complex.  The powerful attraction of romantic love was indiscriminate.  At an even more basic biological level, traditional sexual mores were less effective in controlling the sex drive itself in the new cultural conditions. Movement from job to job in different places in a mobile economy isolated family units and individuals from extended family and intimate communities.  Sexual attractiveness became the primary tool for sales and advertising, and diverted large amounts of energy from other creative effort. 

Because of these significant cultural changes, traditional marriage broke down.  The legal system and traditional laws could not stem the tide of change. Although Alabama disbarred lawyers for “quickie divorces” in the late nineteen fifties, the State legislated “no fault” divorce in 1969.  The law no longer attempted to preserve marriages.  Marriage was merely an agreement between two individuals, and if they decided to dissolve it, the process was made easy by no-fault divorce laws.

The changes in law did not cause the breakdown.  Changes were inevitable.  But courts, governmental agencies, and the legal profession were ill-prepared for change, and have not handled it well, as we will explore in other essays.

In the essay on Family Meltdown, I described the meltdown of family that resulted from our nation’s movement from an agrarian, small town economy to a technological economy.  Men and women have more contact with members of the opposite sex who are not their spouses than with their spouses.  The Nineteen Sixties marked the pivotal change.  The judicial system was ill-prepared for the change.  The adversarial legal system was not designed to solve the problems of the disintegration of marriage and family. 

Nursery Rhymes teach us a lot.  “Humpty Dumpty sat on a wall, and had a great fall.  All the Kings horses and men” could not fix the problem.  The “king’s horses and men could not put Humpty Dumpty together again.”  Judges and governmental bureaucracy—the “king’s horses and king’s men”–can’t repair emotional and structural problems inherent in the breakdown of marriage and family.  Of course, assigning domestic relations disputes to the courts seemed natural enough at the time.  As pointed out in the family meltdown essay, the state had taken control of the regulation of marriage centuries earlier, and courts were handling the divorces that occurred when governmental policy still required a sufficient legal reason for divorce.  In that system, marriage was more than a simple contract between two parties.  The State—society itself—was like a third party to the marriage.  I had a vested interest in the outcome.  But, after the adoption of no-fault divorce the assignment of marital disputes in which marriage itself was not a protected relationship to an adversarial system was not a good governmental policy.  

For starters, in order for a lawyer to make money, there had to be a divorce.  Lawyers were paid nothing for maintaining a marriage.  So lawyers had no motive to save the marriage. But there are other, even more pernicious effects of the assignment. Adversarial trials can be devastating to the continuing relationship of the parties.  The adversarial legal system actually requires lawyers to provide “zealous representation” for their client.  Lawyers were forbidden by the ethics of the profession to advise both parties to a divorce.  “Zealous representation” involved digging every possible skeleton out of the closet and throwing as much dirt at the other side as possible.  The parents were and still are urged to “fight for their rights.”  (Imagine this as a requirement of legal ethics!) The kids who were emotionally attached to and dependent on both parents.  Children were caught in the middle.  Often kids were pulled into the battle, with both parents trying to “use” them as witnesses, and urging them to take sides. 

The system that had previously sought to preserve marriages became extremely insensitive to that relationship overnight.  In the “no fault” system, there was no legal issue as to whether a divorce was “justified” or “in the best interest” of the family.  The issues were about who would get the kids, who would get the property, and how much spousal and/or child support would be paid.  A financial obligation was a poor substitute for the emotional support of the non-custodial parent.

As pointed out in the family meltdown essay, the breakdown of the institution of marriage was brought about by changes in the culture, not by changes in the law.  And judges and the court system was ill-prepared to handle the onslaught of cases.  The changes opened Pandora’s Box.  I spent about 40% of my time for 18 years as a judge in a rural Alabama circuit court dealing with domestic relation cases.  No amount of wisdom can bring happiness in these cases.  To do an adequate job, hundreds of hours would be required for every case, and judges simply cannot do that.  Myriad problems engulfed the system.  Humpty Dumpty lies irreparably shattered.

The problem I am describing does not reflect adversely on the character of lawyers and judges.  Most of them are extremely sensitive to the issues, but are caught in the system.  We assigned the most sensitive and important relations that exist in our society to an adversarial system that was not designed to deal with it.  Lawyers are ethically committed by the adversarial system to “zealously” represent their clients.  In other words, unless they fight with maximum hostility for husband or wife that they represent, even though kids are caught in the middle, they may be criticized for being “ineffective”. 

Describing the problem is easy; solving it is not.  Someone said, “To survey the Aegean Stables is not to clean them.”  In Greek mythology, the Aegean Stables was where the horses that pulled the sun across the sky by day slept at night.  One of Hercules tasks was to clean the Aegean Stables.  He solved the problem by running a river through the stables.

To understand that there are problems with the system is not to provide solutions.  But perhaps recognition of problems is the first step toward solving them.  Many lawyers and judges today recognize the problems, but are caught in the system.  Mediation holds some promise, but often is too expensive, and fraught with the same faults and economic burden as the adversarial system.  Collaborative divorce, in which lawyers representing the parties attempt to work peaceful solutions, without the bitter rancor of the traditional adversarial system also holds some promise.

We have a long way to go.  The system that has ruled in Alabama since 1969 has damaged the role of family in the moral formation of children.  We will explore that topic in the next essay.

Twentieth century psychology correctly identified the sources of moral formation. Sigmund Freud, Erik Erikson, Jean Piaget, Lawrence Kohlberg and others showed that moral formation occurs in stages of development.  Internalization of the commands and images of the parents plays a strong and vital role in moral formation. Traditional family was the first template for moral formation. Earlier in history, conscience was believed to be an inherent part of human nature—something humans are born with.  There is probably some genetic predisposition for development of conscience, because the capacity would support survival, but there is also a very strong social/cultural component to moral formation. Basically, conscience is instilled by the surrounding culture. Parents usually start the process, and continue to be a central role. Moral formation includes both a cognitive (learning) component and emotional component. The learning component is important: if and individual knows that it is wrong to do a particular thing, he or she is much less likely to do it. In fact, Russian psychologist Lev Vygotsky realized that individuals internalize all that they know from the surrounding culture. The internalization begins with parents. But the emotions that are involved include not only shame and embarrassment because of wrong-doing, but also includes the development of an internal monitor that Freud called the “superego” that demands correct behavior. According to Freud, the superego resulted from the internalization of the commands and the image of the parents. The superego is the conscience.

In the essay on Family Meltdown, I describe the breakdown of traditional family and marriage when the culture shifted from an agrarian to an urban, industrial/technologically based economy. In western civilization, romantic attraction played an important role in pairing couples off, and then, according to the fairy tales, they lived “happily ever after.”  However, romantic attraction didn’t work as well in the industrial, technological economy.  Romantic attraction—to be frank, the attraction of sex—in offices and factories, between males and females who were not married to each other produced inevitable results. Laws changed in the 1960’s, shifting to no-fault divorce. Change in law was the result, not the cause, of the breakdown of marriage. Courts were ill-prepared to deal with the onslaught of emotion-laden divorces, child custody matters, child support matters. The adversarial system for dispute resolution is the hallmark of the court system, but it definitely was not the best place to resolve the highly emotional issues arising from breakdown of the most fundamental unit of civilization.  And that gets us to the point of the present essay: because the family was largely responsible for moral formation, the effect of the breakdown of family had significant impact on our society.  The legal system that has evolved for the resolution of emotionally charged domestic disputes leaves much to be desired.  The potential results are far reaching.

Often we hear theories about the cause of crime. Searching for a “cause of crime” is the wrong approach. There is no “cause” for crime, although many social and personal factors may create an environment in which it is more likely to occur.  There is a cause for moral, law-abiding behavior. The cause for proper conduct is sound moral formation—the adequate development of conscience.  Sound moral formation has been imperiled by breakdown of family, and the resulting destruction of the traditional template for moral formation.  Moral formation traditionally depended on the child’s strong, healthy relationship with both parents. Our method of dispute resolution does little to improve the prospect.  A few hours of a judge’s time, with attorneys doing battle to zealously represent clients in an adversarial setting, with economic factors being the pre-eminent concern, is not a good way to make decisions that will drastically affect the entire future for children, mothers and fathers.

When moral formation declines, it is predictable that there will be an increase in crime. The rate of incarceration remained constant in the United States from 1924 to 1964, but began to mushroom in the late 1960’s—the same time that traditional marriages began to breakdown at a rapid rate.  It would be a mistake, however, to jump to the conclusion that the breakdown of family was the initial cause of the increase in incarceration. Just because two things happen one after another does not mean that the first causes the second.  Reasons for the increase in the rate of incarceration included the increased use of drugs, the criminalization of conduct that might not have been criminal previously, and numerous other factors coming out of the tumultuous 60’s. But the breakdown of moral formation is likely to cause increasingly poor behavior, and to escalate the rate of incarceration, in a vicious, degenerating downward spiral. What goes on in domestic relations court interacts with what goes on in criminal court.

Thoughtful people are beginning to understand that there is a systemic problem in the way we have dealt with domestic relations litigation.  But we have a long way to go.  In the next essay in this series, I will deal with a huge problem in the economics of divorce: Child Support.

Family is the basic economic unit of our culture. Other essays in this series have examined the breakdown of family and problems related to the problem of trying to resolve family disputes in an adversarial judicial system. Problems related to child and spousal support epitomize the unanticipated difficulties of the transition to no-fault divorce managed by an adversarial judicial system. The traditional family was the ultimate consumer. Food, clothing, housing, transportation, and all of the basic requirements for life are a part of the family budget. The purchase of those necessities has been the bedrock on the entire economic system. 

Difficulty with the management of money is a major cause of marital breakdown.  In the traditional family before the meltdown in the second half of the Twentieth Century, law discouraged divorce.  Economic forces within the family itself created pressure to make the family budget work. The policy of government and law did not encourage either parent to make decisions based on selfish economic interests. But then marriage became just another contract, and suddenly, the non-fungible, incommensurable moral duties and the affective role of parents, that included love, nurture, participation in moral formation, education and other responsibilities that do not lend themselves to monetary evaluation, were assigned monetary value.

In the present day adversarial legal market for divorce, either party can readily obtain an evaluation of economic prospects for child support and spousal support. While spousal support is evaluated on somewhat equitable principals including the age, condition, station in life, length of the marriage, contributions to the marital estate and the like, child support is simply based on the prospective income of the two spouses.  The system assigns a monetary value to things that really can’t be bought or sold.

The excellent intentions of lawmakers in requiring every parent to be responsible for the economic needs of their children are admirable, but when a system is created that causes an economic motivation for divorce to be thrust into the core of every marriage with children, the unintended results are scary. The conversion of the responsibility of parenting to a monetary sum inserts a conflict of economic interest into every marriage that involves children.  The appearance of an economic advantage is not limited to those marriages that would likely have ended in divorce anyway. The monetary child support obligation applies not just to the irresponsible parent-it applies to every parent.  It can provide part of the motivation for divorce.

The non-custodial parent is forced to pay child support.  But the custodial parent is not really accountable for the disposition of the child support that he or she receives.  Nothing assures that it will be used for the benefit of the children.  In a society in which drugs are problematic, and are not the only unhealthy possibility for the unattached custodial parent, the lack of accountability is a real problem.

But the temptation to legally require accountability from the custodial parent is not a viable answer to the problem. An already overburdened court system could not meaningfully take responsibility for managing the financial affairs of every family that undergoes a divorce, and impose and enforce some type of fiduciary responsibility, like that of a guardian, on the custodial parent. In the traditional family when the law protected the marriage itself, and divorce was more difficult, the wife and husband exacted some accountability of each other.  To solve the accountability problem, we must again harness some of the energy that naturally brought the parents together in a bonded relationship and caused them to bond with the children in the first place.  Without forcing incompatible couples to endure each other, we must discourage the animosity generated in our present adversarial system.  We must create a system that encourages parents to work together for the best interest of the children.  The support of extended family, community and church is needed.  A new morality for grandparents needs to evolve, that is not shaped by the culture of adversarial divorce.

A widespread practice of pre-litigation mediation offers promise, for these and other problems related to the adversarial system of divorce.  Without involving lawyers and the adversarial system of the courts, a mediator could meet with both parties and help to reach a successful voluntary solution.  Then the parties could seek disinterested advice, and one of them could file for an uncontested divorce.