It's a Mad, Mad World: Uncomfortable Praise for the Evolution of Divorce Law in the United States

Mad Men Season 3 Episode Photos
Mad Men Season 3 Episode Photos Photo Gallery
Don Draper (Jon Hamm) in Episode 13

One of television's most popular shows, Mad Men (season five premieres on March 25 on AMC), is set in the early to mid 1960s New York, and features the troubled marriage and eventual divorce of two of its main characters. The show has earned praise for its efforts to remain historically accurate, and as such, gives divorce practitioners a chance to view the dissolution of a marriage as if it were in a time capsule.

The show's main character, Don Draper, is a professionally successful advertising executive with a lifestyle which includes a serious drinking problem and many extra-marital affairs. His wife, Betty, had been a model, but stopped working to care for their children after their oldest was born. After discovering one of Don's affairs, and finding out that he was actually living under someone else's name, and that he had previously been divorced in California, she went to her father's estate attorney to ask about her options regarding a divorce. The following is the dialogue between Betty and the attorney, fictionally set in 1963 (from the season finale of Season 3):

Attorney: "What do you want to do? Do you want a divorce? In New York State you need to prove adultery. Can you?"
Betty: "Maybe."
Attorney: "I mean prove it in a court of law. That's hard to do, unless he wants out, but you're not going to get anything. You won't even be able to buy [your brother] out of [your father's] house, so you'll have to sell it. And, he can take the children. That's my legal advice. You want the rest of it? Are you afraid of him?"
Betty: "No."
Attorney: "Is he a good provider?"
Betty: "Well, he is but that's not the point. It's a lie so big, Milton. I feel like I've been in some dream since I found out. Just saying it out loud to you is ... the first time I'm realizing it's true."
Attorney: "You have three small children together. At least, go home. Give it a try. That's what I'd tell my own daughter."

At the time of this fictional dialogue, No-Fault divorce had not yet become available in most states. New York became the last state to allow for No-Fault divorce in 2010. Massachusetts, by contrast, has had No-Fault divorce for over thirty years.

No-Fault divorce makes proving a wrong, such as adultery, unnecessary in a divorce proceeding. Since No-Fault divorce became common, divorce cases have shifted their focus from what a husband or wife has done wrong to accepting that individuals should have the ability to exit a marriage if they feel that it has irretrievably broken down, and figuring out how to sever some of the ties that bind a couple.

Other than the procedural requirement that something fault-based be proven in court, the two points that the attorney makes that are diametrically opposed to modern divorce law is the idea that Betty would not get anything, and that Don would get the kids. Modern divorce law is designed to (it doesn't always work out this way, but it is designed to) minimize the transition for any children in the midst of a divorce. Judges like to keep children in as stable position as possible. The idea of having three young children taken away from their stay-at-home mother to reside primarily with their father and his long hours and drinking problem, without much evidence that the children would be better off with him than with their mother, is unlikely in a modern divorce. Further, the revolution (and evolution) of alimony, property division, and child support within the context of a modern divorce would make it very unlikely that Betty would be left without many assets or support from Don to continue their upper middle class lifestyle.

Lastly, and this might be more the issue of a Hollywood script than a historically accurate portrayal of how attorneys spoke to potential clients about divorce fifty years ago, it is inappropriate for an attorney to try and convince a potential client to either obtain or refrain from obtaining a divorce. That is a personal decision that should be made only by the individual.

What is considered "fair" is fluid. Views on politics, ethics, gender relations, and many more issues vary over the course of time, and vary among different cultures within the same time. From this divorce practitioner's viewpoint, the modern divorce is generally "fair" given what that term carries in early twenty-first century Massachusetts, at least far more than what it was fifty years ago.