After the couple has made the utilitarian decision to seek a divorce, the state, through divorce and family court, becomes the self-interested party. The court has many aspects to consider. They have the wishes of the parents, the well-being of the children, and the public good to weigh into their decisions. While the decision to get a divorce is made at the individual level with utilitarian concerns, the divorce process is one of republican utilitarianism and morality. Mnookin and Kornhauser report that while the divorcing parties can make private agreements concerning child support, custody, property division, and visitation it is the court and the welfare of the state, that takes precedence.
"Private agreements concerning these matters are possible and common, but agreements cannot bind the court, which, as a matter of official dogma, is said to have an independent responsibility for determining what arrangement best serves the child's welfare" (Mnookin and Kornhauser 955). Serving the needs of the child is the civic duty to serve the best needs of society. Though divorce is still a matter for the public good, and the providence of the state, decisions are not always made with utilitarian attitudes.
The various ethical models interlock to produce a decision. The wishes of the parents, though not binding, are often considered and heavily influence the outcome. In today's rubber-stamp process of the crowded judicial system, "parents actually have broad powers to make their own deals" (Mnookin and Kornhauser 955). In addition, the dissolution of same-sex marriages, or marriages with no children, may not have any legal consequences at all and utilitarian behavior could become overly selfish (Kohm 5). America's tradition of individualism could result in only one party benefiting from the utilitarian pursuit of happiness.
However, when children are involved the court must be judicious in evaluating the welfare of the children and the public good. Spouses must be held accountable to reduce the pain that the state will endure from additional wards and responsibilities.
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