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Changing family formation and the practice of family law

The past twenty years have seen rapid demographic changes in family court clientele.  I am seeing fewer divorces among the professional/managerial classes and seeing more out-of-wedlock custody, visitation and child support cases (and fewer married couples) among the working class.  However practitioners, such as myself, cannot be certain whether their anecdotal experience is an accurate reflection of these trends or merely random noise.

Until recently there was very little good sociological research written for non academics on contemporary American family formation and marriage.  However the past few years the National Marriage Project (NMP), a nonpartisan, nonsectarian, and interdisciplinary initiative located at the University of Virginia, has been releasing one or two fascinating sociological studies each year on the modern American family.  These studies research and analyze the health of marriage in America, the social and cultural forces shaping contemporary marriage, and identify strategies to increase marital quality and stability.

In addition to an annual “State of Our Unions,” the NMP produced a 2012 study “The Date Night Opportunity: What Does Couple Time Tell Us About the Potential Value of Date Nights?”  Its most recent study, “Knot Yet: The Benefits and Costs of Delayed Marriage In America” has been the subject of numerous op-ed pieces.  Anyone interested in the future of the American family should find these studies fascinating.

“Knot Yet” comports with what I have been seeing in family court as well as my observations of my peer’s experiences.  Among the trends “Knot Yet” demonstrates:

• The divorce rate is declining for couples in which the wife has a college decree but is increasing for those in which the wife does not

• For women, obtaining a college education and delaying child bearing until marriage is both positively and increasingly correlated with household income, avoiding depression and marital/family stability.

• Female educational attainment is now positively correlated with ever getting married (historically, female educational attainment and marriage were negatively correlated)

• Age of first marriage is rapidly increasing at every educational level (almost three years later than it was 20 years ago)

• The out-of-wedlock child bearing rate is low and barely rising for women with a college degree

• The out-of-wedlock child bearing rate is rapidly increasing for women with lower educational levels

• Cohabiting parents are less likely to remain together over time than are married parents

• For women with college degrees, the average age of first marriage is typically a few years before the average age they first bear children

• For women without college degrees, the average age of first marriage is typically a few years after the average age they first bear children

The study notes what it calls “The Great Crossover.”  While woman at all educational levels are both marrying and having their first child later than they were in the past (with the trend for both increasing over time), the age of first marriage is increasing faster than the age of first birth. Approximately 20 years ago the age for first birth for the average American woman crossed over and became earlier than the age of first marriage.  By 2011, this gap has widened to about a year.  This gap has increased to almost five years for women with less than a high school degree.

The one counterintuitive–yet, from my experience, accurate–bit of information from this study is that while couples who marry in their early 30’s are slightly less prone to divorce than couples who marry in their mid 20’s, the couples who marry in their mid 20’s remain happier in their marriage over time.  While my peers who married 5-10 later than my wife and I did were more mature when they married, with many of these older couples one or both felt like they were “settling.” Often one of them had some regret about not treating relationships in their early or mid 20’s as potentially marriageable and in hindsight wished they had married someone they had dated previously.

For reason subject to vigorous debate, America has created a marriage culture in which stable family formation is reasonably likely only for those who obtain college degrees and who delay child bearing into (at least) their late 20’s.  Since no culture in history has achieved this educational attainment or been able to delay first birth to such a late age, these trends bode well for college educated spouses who are able to delay child bearing into their late 20’s but bode ill for the stability of many American families.  The NMP’s “Date Night” study provides useful suggestions for sustaining a marriage.  Ironically those most likely to have the resources to follow those suggestions are those least in need of the boost.

What this means for the practice of family law is that we can expect to see fewer divorce and custody cases among the college educated and more custody, visitation and support cases among those without college degrees.  The increasing divorce rate for those without college degrees may be limited in its impact by the decreasing marriage rate within this group.

The view that family court is presiding over the decline of Western Civilization is something I increasing hear from family law attorneys and judges.  I’ve even heard it recently from one of our state’s Supreme Court justices [and no, I’m not saying who].  The trends noted in “Knot Yet” demonstrate why this view is so prevalent.

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