There has been a recent push by lawmakers in several states to either make the divorce process more difficult, or to end no-fault divorce altogether. With reasoning that ranges from biblical to social to economic, a number of politicians are trying to throw more speed bumps in the way of couples who are simply trying to escape dead-end marriages.
Though the intentions are good — they want to strengthen families and help children by potentially reducing impulsive divorce — the effect of extending waiting periods or the revocation of no-fault divorce seems much more likely to cause additional problems than end up with their desired result.
One of the ideas behind the push to make divorce more difficult together comes from the correlation between children of divorce being more likely to experience worse outcomes in life, such as a higher likelihood to develop behavioral issues or a higher chance of dropping out of school. However, correlation does not equal causation.
It is impossible to independently verify if other factors contributed to these problems or whether the parents remaining together in a dysfunctional marriage would have caused a different outcome. It has been determined that parents staying together just for the sake of their kids often create an extremely stressful environment. If the love is gone and all you and your spouse do is fight, this does not promote model conflict resolution skills and creates a situation where a child’s needs are more likely to be neglected.
On the other hand, children of low-conflict divorce where parents manage to co-parent effectively are extremely likely to live well-adjusted lives. This lends to the idea that divorce isn’t necessarily the biggest factor; it’s more the environment a child grows up experiencing. Forcing two people who wish to get a divorce to stay in their marriage longer will only serve to encourage more opportunities for arguments, more opportunities to cultivate resentment and extend the distress all parties (including children) must face.
As for eliminating no-fault divorce altogether, it will turn back the clock on several decades of legislation aimed at reducing the need for couples to stay in loveless marriages and decreasing contention during separation, while simultaneously offering an escape from subjection to situations of emotional and physical abuse — two factors that aren’t necessarily an option for at-fault divorce or are difficult to prove. Taking away the right of a person to determine when their relationship has reached the breaking point is completely unfair to the individual and creates potentially dangerous situations.
Additionally, fault is almost always an issue in divorce already; it just isn’t necessarily a major factor that needs to be proven during the proceedings. There is rarely a divorce where one, or both, parties have not committed some sort of wrong, whether it is cheating, lying, drugs and alcohol or any other serious transgression. Even if a fault basis were required to obtain a divorce, most marriages will already have broken down due to someone’s fault.
And say they actually did institute a proof requirement. It would likely not be nearly as difficult to substantiate as other things divorce attorneys have to prove in cases on any everyday basis, such as the values of pension plans, depletion of marital assets, etc. This likely won’t lead to a major decrease in the number of couples deciding to divorce; it just creates an unnecessary step that will wind up causing more headaches for everyone involved.
Besides, most judges do not want to hear who is at fault — they just want the case to be over as quickly as possible. In counties that currently require you to prove elements of incompatibility, all that it really amounts to is putting someone on the stand to explain why the marriage is over. The judge just wants a quick explanation so they can move on to the important aspects.
A recent example of proposed legislation is a Kansas bill submitted by a member of the House Judiciary Committee, which seeks to replace “incompatibility” as a valid justification for divorce with eight (unspecified as of yet) reasons to allow a divorce. While he did not author the bill, Rep. Keith Esau, R-Olathe, said he supports its intention to strengthen families.
“I think we’ve made divorce way too easy in this country,” Olathe said. “If we really want to respect marriage it needs to be a commitment that people work at and don’t find arbitrary reasons to give up.”
Perhaps he may feel that reasons of incompatibility or irreconcilable differences are “arbitrary,” but in many (if not most) cases, couples have either been miserable for a long time, attempted to reconcile or a combination of the two. Without no-fault divorce, they must now endure an even more trying and difficult process to separate and move on with their lives by fighting in court over who was to blame.
While this bill is unlikely to go anywhere, it does give an example of the sort of misguided logic politicians are using to push this sort of legislation. They want to solve the “problem” of divorce by making it harder than it already is to achieve. It already often takes more than a year and thousands of dollars to settle a divorce, yet you can get married in Kansas by filling out some paperwork, paying an $85 fee and waiting three days.
Perhaps instead of forcing miserable married people to try to “work it out” for months with extended waiting periods or a more difficult divorce process, they should write legislation that ensures people who get married are more compatible. Maybe instead of a mere three-day waiting period, legislators could look into instituting mandatory 12-month plus waiting periods, which many states have for divorce, prior to marriage.
While I realize this will never happen for a variety of reasons, it illustrates how politicians are trying to kill the snake by cutting off the tail: Making divorce more difficult isn’t going to stop it from happening, just as cutting off the tail likely won’t kill the snake. It will simply slow down and exasperate an already laborious system, causing more difficulty and suffering for everyone.
Obviously, the current system in place is not perfect. However, it is still miles better than it was, and reverting back to a process similar to what existed over half a century ago will erase decades of social progress. Leave the decision to end a marriage up to the adults in the relationship.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”