No-Fault Divorce Laws and Divorce Rates in the United States and Europe


By John Crouch, J.D., with Monika Scoville, J.D., L.L.M., Richard Beaulieu, Ashley Sharpe, Kristen Thrine, Scott Dukat and Sarah Williams.


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Abstract

This paper brings together for comparison the divorce rates and certain relevant divorce laws for the 50 states of the United States of America, and 22 European nations participating in the Commission for European Family Law (CEFL).

This work draws from the most authoritative and current sources in the areas of family law and demographic research. Nonetheless, to present the relevant, operational features of multiple jurisdictions' no-fault divorce laws, it was often necessary to weed out inaccurate, irrelevant and confusing information from even the best secondary sources, and check the statutes themselves, as the same terms mean different things in different states and countries, and some laws are overlapping or obsolete.

The study isolates two relevant factors in European and American divorce laws, which the authors designate as "effective waiting periods" and "reconciliation counseling laws." The effective waiting period is the minimum amount of time the law specifies for the duration of the entire process of separation and litigation leading to a no-fault divorce. Reconciliation counseling laws are any laws that (1) require counseling aimed at saving the marriage, (2) let judges and/or litigants initiate such counseling or delay the divorce process to allow reconciliation, or (3) require anyone in the divorce process to do anything to help such counseling happen. Reconciliation counseling must be distinguished from counseling provided for other purposes, and from mediation of the child and economic issues in the divorce. Finally, the authors note any exceptions to these laws in cases where there is mutual consent to the divorce.

A clear correlation between the length of the effective waiting period and divorce rates is apparent in the U.S. data. For instance, of the ten states with the lowest divorce rates, five have effective waiting periods, while of the ten states with the highest divorce rates, only one has a waiting period of any length.

Generally, states with a waiting period of any length tend to have slightly lower divorce rates than others. The length of this waiting period appears to have a significant correlation with divorce rates only in the states with waiting periods significantly longer than the mean (which offer correspondingly larger cuts in the waiting period if couples achieve mutual consent). The states with two-year waiting periods are Maryland, Illinois, and Pennsylvania. They respectively have annual per capita divorce rates of 3.0, 3.2, and 3.2 per thousand, compared to the U.S. mean of 4.0.

However, the U.S. data demonstrates no relationship between the presence or type of reconciliation counseling laws and divorce rates. This is unsurprising, because these statutes have almost completely fallen into disuse. This suggests some causal relationship between laws and divorce rates, because the waiting periods, which are enforced, correlate with lower divorce rates, while the reconciliation counseling statutes, which are not enforced, do not.

The more diverse European legal data was subjected to a more detailed analysis, including key details about reconciliation counseling laws: whether they are mandatory in all cases, if not, who decides when they will be used, what activities they require, and any provisions for formal delay of the case associated with them.

The multi-axis heterogeneity of European law makes direct comparison difficult, but a pattern in the relationship between waiting periods and divorce rates is still apparent. Additionally, those nations with required reconciliation attempts, such as Bulgaria, Italy, and Spain, tend to have below-average divorce rates.

This study demonstrates the expected correlation between the presence of waiting periods prior to attaining a divorce and the divorce rate in a populace. Also, the statistics show that Europe generally has considerably less divorce, and stricter divorce laws, than the United States. Determining all the causal factors behind this relationship is beyond the scope of this study, but the relationships that have been established by this work indicate that further study in this area may be able to definitively establish a causal framework. Once this has been done, governments should be able to establish a more effective statutory edifice for preventing divorce and maintaining the family.




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