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
Legislation
| Statistics | Articles/Opinion
| Quotations | Polls
| Other family-related
articles