Because of the blog’s topic, we are fed a lot of reported news on the state of marriage and divorce in 21st century America. Three topics seem to be headlining this week, the inconsistency of which is baffling.

  1. There is a movement afoot to eliminate or severely restrict the right to secure a divorce. This even includes discussion of a Congressional Act. These reports began last August but seem to be multiplying in recent weeks.
  2. Lots of discussions about public acceptance of polyamorous relationships.
  3. A new recent trend of articles suggesting that prenuptial agreements include clauses that would partially or defeat the right of a “cheating spouse” to get property or alimony if infidelity during the marriage is established.

Put these three topics together and you might think that Americans want polyamorous marriages but if sex is involved you lose all economic rights and you shouldn’t be able to be divorced. That’s a tall legislative order.

The entrée to this discussion should be a read of Professor Geoffrey Stone’s 2017 history “Sex and the Constitution.” Stone takes us back to Greek and Roman days when polyamory and single sex relationships were, at times, freely accepted. Notwithstanding the Puritanism we learned in grade school and church school, our society was considerably looser than we were taught until the end of the Civil War and passage of the Comstock Act of 1873. The local side of this is told in Clare Lyon’s history of the sexual life of Philadelphia in the 18th and 19th century titled “Sex Among the Rabble.” Then there is Joshua Rothman’s “Notorious in the Neighborhood” a study which concludes that while there were laws all over America banning interracial relationships, wealthy Americans had sex with whomever they wanted and often set up and supported separate households for their concubines, regardless of race and despite any law. This continued pretty openly until a certain U.S. Postmaster, Anthony Comstock, decided that he could reform American morality by regulating what Americans could send each other in the mail.

These books suggest that we go through cycles of promiscuity as history evolves. When I was first licensed to practice in 1980, no fault was brand new to Pennsylvania and a known extramarital relationship was often a career ending event for the person found “guilty” of adultery or what was then called “criminal conversation.”

This can be characterized as a culture war over what we like to call “family values.” But the data show that if there is an injured party in this enterprise it is marriage itself. You make the comparison, again recognizing that until 1980 there was no such thing as a no-fault divorce

                        Pa population              Marriages        Divorces

1980                11,864,000                  93,673             34,922

2022                13,014,000                  72,031             29,101

So, our population has increased almost 10% yet our marriages declined by 25%. And, yes, even the divorce stats have declined by 17%.  If we aspire to return to “family values” we may have to do something about the fact that 40% of kids born in recent years do not have parents who are married to each other.

To state the self-evident, if you want to stress test a marriage, try introducing new partners to the partnership. We have not seen a lot of this but sex outside the marriage does inevitably produce complications like surprise children, surprise financial relationships (e.g., gifting and lending) which don’t keep marriages stable. Jealousy lives.

Lastly, please spare both the bench and bar your aspiration to prevent “adultery” via contract. The way this is brought to attorneys is in plain laymen’s language. “If he/she cheats, he/she should have to suffer.” The range of “cheating” is as broad as the mind can conjure. Lawyers have trouble defining it and judges really don’t care to listen to this kind of testimony. In olden days, you didn’t have to show “proof” of extramarital sex, just “inclination and opportunity.” If the detective saw you registered at the “Luckywell Motel” as Mr. and Mrs. but it was your neighbor’s car in the motel lot next to yours, courts would conclude there was both “inclination and opportunity” sufficient to find adultery. Realize as well that we are encountering a fair number of people who are “cheating” with someone of their own gender. If you want to unnerve your future spouse, try handing that person a prenuptial draft which makes clear that adultery means sex with someone of the same sex or who appears to be of the same sex but identifies as someone of another sex. Then we can try to define what is sex in a day an age when, to put it discretely, “tastes differ.”