The divorce decision: the legal and human consequences of ending a marriage.

NOTHING IS as boring as a lawyer's brief, but few things are as fascinating as hearing an off-duty lawyer talking turkey about the way the legal system really works. Richard Neely, a justice on West Virginia's Supreme Court of appeals, writes little books that talk turkey.

The Divorce Decision: The Legal and Human Consequences of Ending a Marriage might be seen as a practical footnote to G. K. Chesterton's forgotten gem The Superstition of Divorce. The twentieth century began by sentimentalizing divorce much as the Victorians had sentimentalized the family, with a lugubriously expanding list of hard case leading finally to no-fault divorce law.

As Chesterton saw, "the divorce controversy is not really a controversy about divorce. It is a controversy about remarriage; or rather about whether it is marriage at all." He argued that dissoluble marriage is not really marriage. "While free love seems to me a heresy, divorce does really seem to me a superstition." If we are to have free love, he suggested, let's have free love, and call it that. Those who want to have the freedom to make and break liaisons under the forms of traditional matrimony are possessed by "a most illogical and fanatical appetite for getting married in churches. It is as if a man should practice polygamy out of sheer greed for wedding cake." Such a man desires "to violate his vow at the same altar at which he made it."

Well, Chesterton lost the debate, and we now enjoy divorce-on-demand. We find feminists simultaneously calling for the end of the family and the enforcement of child-support laws. They hate marriage, but they retain their simple faith in divorce. Others still believe in both institutions, as witness our 50 per cent divorce rate. But neither marriage nor divorce turns out to be quite what the romantics have in mind.

Which is where the lawyers come in. They have an unjustly bad name. Shakespeare, as is well known, called for killing them all (another strong argument, by the way, that "Shakespeare" was only a pen name, since nobody would dare openly take on such a powerful lobby). Though there are bad lawyers here and there, most lawyers are the sort of people who always wind up picking up the pieces in this mad world. Their job is not to subserve the noble ideal of divorce, but to play the angles once divorce is a fact of life. They do this at their clients' behest, and they are very good at it, but they take the rap for the inevitable ugliness of divorce itself. A man's bitterness against his ex-wife is rivaled only by his rancor against the lawyer who was so depraved as to represent her interests.

Neely points out that divorce is simply an exorbitant lifestyle. The legal costs are the least of it; they are high only because the further stakes are even higher. A divorce case is, first of all, a dispute as to how to make one income support two households. The first casualty is justice--or at least the sort of justice envisioned by two idealists who come to the law for material vindication.

"Economics alone," writes Neely, "dictates that even a blameless husband support his children." He speaks from experience as both lawyer and judge: "Numerous women have run off with other men in the face of a husband's extraordinary efforts to preserve the marriage, and yet the court has felt compelled to give custody of the children to the mother. When I have made such decisions, I have been overwhelmed by a sense of sorrow." But the children's welfare may necessitate such decisions, since the bad wife may be the better parent, or the only parent in a position to give the children the care they need.

At other times the father may have an unfair advantage. As a lawyer, Neely recalls, he once represented a man who had left his wife and two children to ride off with a woman who shared his devotion to motorcycles. The wife held all the aces. The father didn't want custody. But such was the mother's devotion to her children that Neely counseled his client to sue for custody, which frightened the poor man into a relatively soft settlement out of court. Thus are the angles played.

Neely confirms what Chesterton foresaw: that the dynamics of legal divorce favor the the guilty party. He argues that the fairer the law tries to be, the less predictable the results. The aggressor against the marriage bond enjoys a certain advantage. And as usual, the actual result is radically different from what the reformers envisioned. What was meant as an emergency measure inexorably becomes a matter convenience.

Then there are the children. Neely says that sociologists biased in favor of divorce have played down the impact of divorce on the children, though judges and lawyers see it every day, as do police. And the consequences spread through society as a whole; the crime rates are only the beginning of the story. Our social institutions are increasingly pitted against the kind of love--someone has called it "practical concern"--that holds society itself together. Legal forms can only help by supporting natural affection; they are no substitute for it, as we should have learned by now.

Is divorce ever justified? Neely thinks it is, in a small minority of cases. But the cases he refers to might be served just as well by legal separation. The personal and general destructiveness of divorce summons us to rethink the whole issue even more radically than he has done.

But he has done plenty. He suggests that we think of divorce as being like smoking: a personal option to some extent tolerable, but with collateral social results to which we can't be indifferent. Until now, divorce has had a good press: It has been judged by its promises, while marriage has been judged by its worst cases. The Divorce Decision should help to correct the balance.