A Proposal: Tax Divorce

Roll back no-fault divorce,” I said when a friend asked what we could do about marriage in America. He laughed. “That’s a nonstarter. Society has changed. People don’t want society telling them what they can and can’t do.” True enough, but I asked him to hear me out.

In 1969, California was the first state to legislate no-fault divorce. It quickly swept through the nation, and we were promised that it was a great improvement on the adversarial system of the past. People could get out of failed marriages without painful court battles and costly legal fees, and children would be happier because they would no longer have to endure their parents’ conflict and unhappiness.

But the facts ended up contradicting the promise. No-fault divorce broke up millions of families, and the consequences have been devastating. Gone are the heady days when divorce was declared a win“win, with unsatisfied adults moving on and children flourishing in an environment unstained by grown-up unhappiness and conflict. As Barbara Dafoe Whitehead wrote in her groundbreaking 1998 book The Divorce Culture , “The truth is that divorce involves a radical redistribution of hardship, from adults to children.”

A study commissioned by the Institute for American Values tried to put a price tag on the social costs of this radical redistribution, which are high, because the hardships show up in behavior problems that are more prevalent among the children of divorced parents than those who grow up in intact families. These behavior problems require social workers, mental-health professionals, and sometimes also policemen and prison guards. And they lead to lower achievement in schools, less productivity for workers, and so forth. Adding it all up, the study concluded that the social cost of divorce in America is $112 billion annually.

So, yes, people today want to be free to make their own “lifestyle choices,” which is why it is probably politically impossible to restore the old divorce laws. But at the same time our attitudes toward the social costs associated with “lifestyle choices” have changed.

Take the examples of drinking and smoking. Nobody thinks we can go back to Prohibition, nor do any but zealots wish to ban tobacco. But we’ve ring-fenced drinking and smoking with regulations and imposed high taxes. The arguments for these policies are not based on old-fashioned, puritanical morality but instead on social costs. In New York City a pack of cigarettes costs eleven dollars, most of that in taxes. Smokers grumble, but most people allow that somebody needs to pay for all the health-care costs associated with smoking, and people need to be discouraged from making destructive choices other people have to pay for. Why not take the same approach to divorce?

Thus my proposal. Couples who get divorced should pay 5 percent of their net worth to the state as a tax. This will discourage divorce and help compensate society for the social costs of divorce. Call it a sin tax if you’d like, though that conjures moral judgment, which our age shrinks from making. Better, perhaps, to think of it along the lines of the tax on cigarettes, or proposed taxes designed to reduce the emission of dangerous pollution. Divorce pollutes our marriage culture, so why not tax it accordingly?

Struggling middle-class families need all the resources they can get to help their children avoid the worst effects of divorce. To keep the tax from harming children, it will kick in at 1 percent for couples with children and assets of at least $500,000 and rises by a percent for every $100,000 up to $900,000, where it is capped at 5 percent.

Which brings me to my Public Square for last month. Many have argued that fighting for same-sex marriage is “pro-marriage.” Writing in the Wall Street Journal in 2008 when the California Supreme Court ruled in favor of same-sex marriage, Jonathan Rauch wrote, “America needs more marriages, not fewer, and the best way to encourage marriage is to encourage marriage, which is what society does by bringing gay couples inside the tent.”

I doubt that New York’s decision to legalize same-sex marriage will do anything other than undermine our already weakened marriage culture. But I want to take Jonathan Rauch at his word and ask him to support my proposal. He should. It creates an incentive for what he claims to desire: more marriages.

I won’t be expecting a call from Rauch. After all, one key principle that motivates the “right” to marry also requires support for a “right” to divorce: When it comes to sex and intimacy, people should be able to do what they want, and only for as long as they want to do it. That’s a good reason, however, to put my proposal before the New York legislature. Voters need to know whether those who were so solicitous of marriage when they pledged support for same-sex marriage are in fact supporters of marriage.