The Fault with No-Fault

"Respondent remains committed to preserving the marital relationship".
(Kathleen McCarthy, divorce attorney for Christine Olson, in a response to the divorce petition filed by legendary basketball coach Lute Olson)

If you're a fan of college basketball, you know who Lute Olson is. Until he took an abrupt and unexplained season-long leave of absence from his job a couple of months ago, he had coached the University of Arizona Wildcats for 25 highly-successful years, leading them to one national championship and numerous Final Four appearances.

Although early speculation centered on Coach Olson's health (he is 73), it is now clear that the leave of absence was, at least in part, related to a divorce action that he filed shortly after announcing the leave. Because Arizona---like every state except New York---allows no-fault divorce, the divorce petition cited no reasons other than that the marriage was "irrevocably broken".

By all accounts, Christine Olson was surprised and devastated by the divorce filing. Through a spokesman, she declared that "...she is worried about Coach Olson, she's still in love with him, and if there's any way to save the marriage, she'd like to work on it". Her attorney is seeking an order from the judge to refer the matter to the court's conciliation department. But Coach Olson's lawyer has pretty much declared that any conciliation attempt would be a waste of time: "The marriage is still irretrievably broken, and there is no chance of reconciliation".

I don't know anyone involved in the case personally, and I'm not taking sides, but I feel bad for Christine Olson. Assuming she is sincere in what she's said, she's had the rug pulled out from under her. To be sure, her marriage to Coach Olson was a relatively short one (four years), and she is unlikely to be hurt financially (she is an accomplished businesswoman in her own right, and is presumably amply protected by the pre-nuptial agreement the parties signed). Fortunately, there are no children involved. But Christine Olson, like many others in her situation, is about to lose what she feels is a good marriage, and there's not a damn thing she can do about it.

The no-fault divorce laws allow a husband or wife to unilaterally decide that the marriage is over. It doesn't matter if the person has a good reason, a bad reason, or no reason at all. It doesn't matter if the other person insists that the marriage can be saved. It doesn't matter if there are kids at home. If one person wants the divorce, the court will grant it. Court conciliation programs like the kind Christine Olson's lawyer is referring to can slow down a divorce but, if one party remains intransigent, cannot stop it.

As I've stated in my book, I'm not opposed to no-fault divorce in principle, and if both parties agree that the marriage is over I don't think the laws should interfere with their right to get divorced. But when only one party wants the divorce, the courts should be doing more than just rubber-stamping the petition. In such cases, there should be meaningful and mandatory participation in the conciliation process. If the divorce petitioner fails to show up for the sessions, or just sits there with his arms folded and refuses to talk, the court should dismiss the case. If there are minor children, there should be additional sessions dealing solely with the effect of divorce on children. If the parties have ample resources, they should be required to pay for in-depth marriage counseling from private counselors, since most court conciliation programs are understaffed and underfunded.

Maybe none of these measures would save the Olson marriage, but at least Christine Olson would feel that she had a forum (other than the newspaper) for expressing her thoughts and her feelings to her husband, and that she had done everything she could to save their marriage.