UPDATING THE BRAKING MECHANISMS IN NO-FAULT DIVORCE LAWS:


A PROPOSAL FOR COUNSELING PERIODS BEFORE DIVORCE



By John Crouch, JD, with Richard Beaulieu

Part of the Divorce Reform Page, sponsored by Americans for Divorce Reform
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An Early Warning/Prevention System for Divorce:
The Marriage and Divorce Counseling Period Act

Fifth Draft by John Crouch, January 31, 2005
Comments to the author at divorcereform@usa.net or 703-528-6700

Introduction

This Act establishes an early warning and prevention period before divorce, lasting either three months, six months, one year, or two years, depending on whether there are children and whether the spouses reach an agreement on the divorce and its consequences.

The periods are modeled on existing state laws, especially those of a few low-divorce-rate states that require a two-year or 18-month wait before a no-fault divorce when only one spouse wants the divorce, but shorten it considerably if the parties negotiate mutual consent. However, this Act fundamentally redesigns the waiting periods so that they can better serve their purpose of letting people carefully consider divorce and try to repair their marriage.

The Marriage Hospital

A forgotten but crucial chapter in the history of divorce is the idea of family courts as a "marriage hospital" that would help families reconcile and improve their relationships when possible. This was the founding vision with which California Governor Edmund ("Pat") Brown launched the commission that ended up producing the current system of no-fault divorce. It was based on the Los Angeles County Conciliation Courts, which flourished in the 1950s and 1960s.

This Act begins rebuilding the "marriage hospital" in four ways:

Helping spouses tell each other, before it is too late, that their marriage needs help
Getting marriage education and counseling information out to families that may need it
Allowing time for counseling and education to work
Letting spouses use states' existing provisions for court-ordered counseling before or after a spouse files for divorce.

Mutual Consent

Most recent divorce reform efforts have been based on ideals of individual consent and contract: either protecting the contractual rights of parents of minor children by requiring mutual consent for a no-fault divorce, or letting a couple choose which divorce laws will apply in their marriage. Americans are generally receptive to arguments based on freedom and choice, but will reject them when they think another value is more important, or when they are not sure how the libertarian proposal would work in practice. Thus, pure mutual-consent rules have a broad appeal but also face substantial obstacles. They are such a fundamental change in the current rules that they have hardly ever gotten out of committee in state legislatures, and they are not likely to pass in many states without a widespread societal discussion of very basic issues. People also reasonably wonder how skillfully and humanely courts and legislatures would handle issues of severe marital mistreatment, which they have not had to deal with in the divorce-grounds context for 30 years.

In contrast, this Act gives a major incentive for mutual consent, by shortening the waiting period significantly. But it does not make mutual consent so indispensable that there would be pressure to craft additional exceptions to protect deserving spouses from being "trapped" in a harmful marriage. Even without mutual consent, the waiting period is two years at most.

Fault and Other Difficult Issues Not Implicated

This Act takes advantage of the fact that since this is a modest restriction on divorce, we do not have to address some of the messy practical and philosophical issues that would be unavoidable when restricting people's long-term ability to divorce. These include "fault" and other extreme mistreatment that would justify ending the marriage; problems of how to prove fault grounds; and the question of opting out of the divorce restrictions at the time of marriage. Many of us believe these questions can be resolved (see the treatment of them in "Classic Marriage", www.classicmarriage.com), but it will take years for reform advocates to craft comprehensive legislation on them and convince society as a whole that such basic change is needed.

Unlike previous reform attempts, this one cannot be said to even slightly encourage "fault" divorce. Because the waiting periods apply regardless of fault, they give no incentive to start a fault divorce. In fact, Part III on "Temporary Relief" removes one of the principal incentives to filing on fault grounds - getting into court faster - by letting separated spouses get certain temporary relief even if they do not have divorce grounds.

Instead of modifying existing divorce grounds, which vary widely among states with overlapping, confusing terminology for both no-fault and fault grounds, we introduce a new provision that can be added to any state's divorce laws. It does not have to mesh with existing wording, because it would be a separate provision from the grounds of divorce.

Waiting Periods

Most waiting periods in public policy are intended to make individuals' decisions be more deliberate, considered, and informed. They fail to further those ends if the way they are enacted, or other related rules, tend to give the individual no choice once the period has begun. For example, if there is a waiting period to buy a gun, the buyer can be reasonably certain that at the end of the period, she will be able to choose to buy a gun, or not to buy one. But divorce usually does not work that way. In divorce, there are two individuals making decisions separately, and in reaction to each other. Existing waiting period laws encourage one spouse to either move out and stay out, or file for divorce, or both, as soon as possible. The resulting distrust, conflict and litigation help pull both spouses away from the marriage. If they do consider reconciliation, each spouse has to consider not only his or her own commitment to the marriage, but the other spouse's apparent level of commitment, and the fact that there is currently no way to bindingly agree to a long-term marriage.

In contrast, this Act does not require or encourage spouses to separate, nor to begin litigation. It requires them to warn each other when they think the marriage is in danger, and it helps them learn about marriage counseling and education resources. And it does so at the very beginning of the process, when counseling and education is more effective. Both spouses are more likely to have some hope and commitment at that point than after a long separation, conflicts over children and finances, bitter divorce litigation, and the new relationships that often begin during separation.

Also, reconciliation is the main reason, but not the only reason for waiting periods. Divorce lawyers are starting to say what they have probably sensed for a long time -- "The Good Divorce" doesn't happen until both spouses have gone through a process and reached acceptance of the divorce, and one spouse is usually far behind the other in that process. As Boston divorce lawyer Anita Robboy describes it in Aftermarriage: The Myth of Divorce (2002), marriages that have children of any age, or that have lasted a long time, do not really end. Her book illustrates how, when the abandoned spouse is pushed into divorce before she has consented or come to terms with it, the result can be permanent bitterness and years of litigation. This fact is explicitly recognized in the Collaborative Law movement, which seeks to replace litigation with a mediation-like process of negotiation which moves at the pace of the "slower" spouse. (See, e.g., Pauline Tesler, Collaborative Law. 2001, American Bar Association.)

Contested divorces with children are usually long and difficult, with or without a waiting period. The only thing this Act takes away from families in such divorces is the seductive illusion that divorce is going to be easy and convenient, or that fault grounds can speed up the process.

Some reported disadvantages of waiting periods -- complication of property and divorce grounds issues, and prolonging litigation -- are somewhat ameliorated by the Act's Part III on "Temporary Relief", or could be helped by changing specific state laws that create problems but are outside the scope of this Act (e.g., Maryland's rule that deserters deserve "rent" from the left-behind spouse).

A Waiting Period Designed for a Free and Individualistic People

This Act is not a pure waiting period - a burden placed by the government on people who have already decided to do something, in hopes that they will change their minds. It is very different from a waiting period in two ways:

(1) Because it hinges on one spouse giving notice to the other, it can be understood as a notice requirement, a duty that people have to each other, not to the state. Like the widely-accepted norms of two weeks' notice for quitting a job, one month's notice for eviction, or "don't drink and drive", it has the potential to move from the statute books into the realm of common law that people carry around in their heads, that they think of as the rules of life. That is our best hope for using the law to influence decisions people make in their private lives, before they come into contact with the legal system.

(2) It combines waiting periods with two other important concepts -- mutual consent and protection of children -- in a formula already used by some states with relatively low divorce rates. When the waiting period is mostly a right that each spouse has against the other, and can bargain away; and is partly to protect the children, and only minimally "for your own good", it should make sense to a nation of selectively libertarian pragmatists.


Full Text of the Counseling Period Act

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Originally posted and maintained by Americans for Divorce Reform; now maintained by John Crouch. You can call me at (703) 528-6700 or e-mail me through my law office's web site.