OPINIONS SPLIT ON RESTORING BLAME IN DIVORCE LAW.

Byline: Mary Lynne Vellinga Scripps-McClatchy Western Service

Nearly three decades have passed since California led the nation in offering no-fault divorce, which quickly spread to all 50 states.

But with half of all new marriages now ending in divorce, a backlash has developed among critics who want to change the law again - this time to make breaking up more difficult.

A law setting up weddings called covenant marriages, which require premarital counseling and will be harder to dissolve, was signed this year in Louisiana. It is an additional, voluntary type of marriage in Louisiana.

Bills that would require more premarital counseling or change no-fault divorce laws have been introduced in 10 other states, according to research by the state Assembly Judiciary Committee. Similar legislation has been drafted for introduction in California next year.

In addition, Saratoga lawyer David Prince is pushing an initiative that would eliminate no-fault divorce for California couples with dependent children. Prince says he has the financial backing to get his proposal on the November 1998 ballot, although he won't say where the money will come from.

If Prince has his way, couples with children could dissolve their marriages only if one spouse could prove the other was convicted of a felony, is insane or committed adultery, extreme cruelty, desertion, neglect or habitual intemperance - the same grounds for divorce under the pre-1970 law.

Psychological trauma 

Now 35, Prince said his parents were divorced when he was about 12, several years after California's no-fault divorce law took effect.

``It created a great deal of psychological trauma for me personally,'' said Prince, who said he thinks he would have been better off if his parents had stayed together. He remembers his two-parent home as happy.

``My parents had a low-conflict marriage,'' he said. ``They yelled and fought, but it was not a slugfest.''

So far, most proposals to change divorce laws have failed. But they have helped fuel a widespread discussion in the media about the effects of divorce and whether children's needs are adequately considered under the current system, which allows either spouse to end the marriage unilaterally, regardless of the reason.

``California, of course, started the transformation from fault to no-fault, and now I think there's this effort among a lot of states to take another look at no-fault divorce,'' said Barbara DaFoe Whitehead, a social historian and author of ``The Divorce Culture.''

Whitehead, who is not backing attempts to change the no-fault law, helped touch off the wave of anti-divorce thinking with her 1993 Atlantic Monthly article titled ``Dan Quayle Was Right.'' The title is a reference to the famous speech in which Quayle criticized television character Murphy Brown for having a child out of wedlock. At the time, his remarks drew widespread ridicule.

Emotional problems

Whitehead's article quoted statistics showing children in families headed by a single parent are six times more likely to be poor. She cited a 1988 survey by the National Center for Health Statistics that found children in single-parent homes two to three times more likely than those from two-parent homes to have behavioral or emotional problems.

Her dim view of divorce was echoed by some influential liberal critics, including Hillary Clinton, who wrote in her book ``It Takes a Village'' that she was ``ambivalent about no-fault divorce with no waiting period where children are involved.''

Whitehead argues that American standards for what constitutes an acceptable marriage are so high that they're difficult to meet. She says a flawed marriage, unless it involves physical abuse or intense conflict, is often better for the children than a divorce.

``Kids have a different standard,'' Whitehead said. ``It's not: Do Mommy and Daddy love each other? It's: Are Mommy and Daddy in the same house and available to me?

``There's a gap between what adults need to be happy and kids need to be happy in families. We need to find a balance.''

Yet Whitehead and some other divorce critics disagree with the notion that getting rid of no-fault, quick divorces will do anything to improve the situation. They said the escalation in the divorce rate did not result from adoption of no-fault laws but from changes in society - such as greater numbers of women in the work force.

More counseling

Whitehead said she likes the idea of providing more premarital counseling and requiring couples who split up to adopt a parenting plan. But bringing back fault-based contests would simply escalate the conflict in divorce cases and increase the harm inflicted on children, she argued.

Whitehead's view is supported by Charles Kobayashi, supervising judge in the Family Law Section of Sacramento Superior Court.

He said there is a lot of fighting in the child-custody phase even without requiring that one partner prove another was at fault in the divorce.

``If we didn't have no-fault divorce it would be 10 times as bad,'' Kobayashi said.

Those who oppose getting rid of no-fault divorce say doing so could also hurt battered women afraid of testifying against their husbands in divorce court.

``One has to be concerned about women's ability to exit marriages where there is domestic violence,'' Whitehead said.

Some social commentators think the harm inflicted on children by divorce has been blown way out of proportion when compared with the damage caused by being raised in an unhappy household. They object to the characterization of divorcing parents as people seeking their own personal gratification at the expense of their children.

``The real question isn't what's best for the children, a two-parent home or a one-parent home? It's which is better - a miserable two-parent home, with lots of fighting and shouting and frozen silences and tears, or a one-parent home - or a pair of one-parent homes - without those things?'' wrote author Katha Pollitt in a recent essay in The New York Times.