Divorce Prevention Legislation

Study: Some divorcing couples can & will use "second chances" to rebuild marriages

"Delaying divorce to save marriages" - Washington Post 10/20/11, By William J. Doherty and Leah Ward Sears

 

Texas Wait Period Bill Uses Perfect Existing Law for Domestic Violence Exception

Texas HB 3707 extends the existing 60-day post-filing waiting period to one year in non-consensual no-fault divorces where there are minor children. The added wording is:

(a-1)  Except as provided by Subsection (c), the court may not grant a divorce before the first anniversary of the date the suit was filed if:

 (1)  the divorce is sought on the grounds of insupportability;

 (2)  the household of one of the spouses is the primary residence for a child under the age of 18 born of the marriage; and

 (3)  the respondent does not agree to the divorce.

 

Subsection C is the existing list of exceptions for the current 60-day wait. The exceptions are where there is a restraining order or criminal conviction for family violence. This is language that is already on the books. It reads:

(c)  A waiting period is not required under Subsection (a) or (a-1) before a court may grant a divorce in a suit in which the court finds that:

  (1)  the respondent has been finally convicted of or received deferred adjudication for an offense involving family violence as defined by Section 71.004 against the petitioner or a member of the petitioner's household; or

   (2)  the petitioner has an active protective order under Title 4 or an active magistrate's order for emergency protection under Article 17.292, Code of Criminal Procedure, based on a finding of family violence, against the respondent because of family violence committed during the marriage.

This is exactly what we have been advocating as the only exceptions to bills restricting divorce, and it is a pleasant surprise to see that Texas already does it. It gives the same level of protection for domestic violence that modern protective-order laws and procedures already give, instead of using archaic "intolerable cruelty" fault divorce grounds or trying to make up new ones from scratch. It also means the judge and the divorcing couple do not have to spend time fighting about violence allegations in the divorce case; the work on that will already have been done in the restraining order case or criminal case.

The only faults of this bill are that (1) the waiting period only happens after filing for divorce, which doesn't seem like a great way to allow time for a marriage to recover; and (2) the exception seems to include very short-term temporary protective orders, which can be granted without a two-sided hearing or any notice; but in practice, there is probably never a divorce hearing during the short time that such orders remain in effect.
Texas Legislature, Session 82(R). HB 3707

North Dakota Reform bill turned into a study, passes senate

The Senate Judiciary Committee was mostly against the original SB  2367 on pre-divorce education, and turned it into a study, which was approved by the senate. Better connaisseurs of legislative language than I should tell us who "the legislative management is", and what, if anything, happens when the legislature says  the legislative management shall consider studying" something.

Further status reports and textual massages at http://www.legis.nd.gov/assembly/62-2011/bill-index/bi2367.html

TEXT THAT PASSED SENATE:
A BILL to provide for a legislative management study relating to divorce reform and education.BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:SECTION 1. LEGISLATIVE MANAGEMENT STUDY - DIVORCE REFORM AND EDUCATION. During the 2011-12 interim, the legislative management shall consider studying the physical, emotional, and financial effects associated with divorce involving dependentchildren. The legislative management shall offer legislative policy solutions, including divorc ereform legislation and marriage and relational education, which will lead to increasing the number of dependent children living in intact families. The legislative management shall report its findings and recommendations, together with any legislation required to implement therecommendations, to the sixty-third legislative assembly.

Malta PM opposes referendum for no-fault divorce upon 4-years' living apart

http://www.timesofmalta.com/articles/view/20110221/local/pm-fears-no-fault-divorce

Other news stories seem to indicate the referendum will be held May 28, 2011.

N.D. divorce waiting period/counseling bill

SB 2367 -  Relating to a waiting period for divorce and to mandatory marital counseling. 12 month waiting period before a divorce would be granted, when children are a part of the family. Mandatory counseling would be required before the divorce would be granted after the 12 month period.

Text and Status

Details from Puerto Rico: As bad as I feared

My great former intern from Puerto Rico, Melissa Diaz, sent me the web site of the Civil Code reform commission. The effort goes back to the mid-90s, so it may not be related to the American Law Institute Principles of Family Dissolution, but the reforms proposed for divorce grounds are pretty bad. The official summary of the changes to Title IV, Dissolution of Marriage, says:

- divorce would be available by joint OR INDIVIDUAL petition, including by a guardian of an incapacitated spouse

- there would be four grounds for divorce:
- - voluntary, informed agreement by both spouses to end the marriage
- - irreparable rupture of the commonality of life that marriage creates
- - declared absence of a spouse, with complete separation for one year after the declaration
- - a spouse's incompletion of the conjugal and family duties assumed in contracting marriage

All the material about mutual consent is little but a distraction from the fact that this is unilateral divorce, available either by leaving the marriage for one year, or even faster by claiming "irreparable rupture". In all but one of the U.S. states that have a similar divorce ground, judges hold that if one spouse wants a divorce, that proves this ground of divorce and thus requires a divorce. So even the one-year waiting period in this proposal should not be taken very seriously, because with "irreparable rupture", you don't need to have the one year. However, for what it's worth, this proposal says that unilateral divorce petitioners need to prove specific facts behind their claims, and includes some other language emphasizing that the "rupture" must be fundamental and long-term.

The general introduction to all the family law changes say they are intended to conform the law to advances in human rights, pluralism of family forms, and women's empowerment. It doesn't say how these changes to divorce grounds further those purposes, nor claim that there is a right to unilateral divorce, although in describing existing law it speaks of a "right" to have mutual-consent divorce without disclosing what led to it.

The introduction to the divorce-grounds section does speak of a "right to divorce", in the context of explaining why neither the state nor a third party can initiate a divorce, except for guardians of incapacitated persons. "El derecho a divorciarse, asi como el de contraer matrimonio, es un derecho personalísimo que forma parte del catalogo de derechos de   la personalidad." [Query: if they mean a right to unilateral divorce, that severely diminishes the long-standing "right to contract matrimony"  which they equate it with.]

 

Spanish text of the official summary concerning divorce grounds, etc.:

Netherlands ditches quick divorce procedure

According to this story from the Smart Marriages listserv, the Dutch parliament either changed the law, or defeated a proposed change, or both, but in any case, it was a victory for slightly stricter divorce laws. However, the goalposts were already at a far more permissive point than in most other European countries, or even than in the U.S., because the issue was apparently having divorce through an administrative process rather than a court, and letting people convert marriages to registered partnerships.

If anyone can tell us more, please do so by posting a comment.

Puerto Rico proposes quickie unilateral divorce, other reforms.

This Stephen Baskerville Interview in El Visitante Newspaper in Puerto Rico is mostly about joint custody, but it appears to say, by the way, that the legislature there is introducing quickie unilateral divorce. According to the charts in the ABA's Family Law Quarterly, Puerto Rico currently has a 2-year waiting period for unilateral no-fault divorce, like Pa., Md. & Ill. The article talks about existing "mutual agreement divorce" which is probably quicker. But it also says that as part of a comprehensive family law reform, "the Civil Code has been revised. The draft proposed for public discussion:

 

--Reorganizes the divorce causes, so all divorce process will be a "no-blame divorce".

[If anyone has any more information about this, please post a comment or e-mail me.  From the other proposals listed, it sounds like it may be based on the aptly-named American Law Institute Principles of Family Dissolution.]

Info on all pending Texas divorce prevention bills

 Proposed marriage and divorce bills at a glance  - Houston Chronicle.

April 14, 2007

Proposed marriage and divorce bills at a glance

By The Associated Press

Proposed legislation potentially affecting Texans getting married or divorced are:

_House Bill 180, by Rep. William Zedler, R-Arlington: Allows couples applying for a marriage license or couples already married to designate theirs a "covenant marriage," declaring it is to last for life and making divorce more difficult.

_House Bill 1704, by Rep. William Zedler, R-Arlington: Moves the marriage waiting period from 72 hours to 120 hours.

_HB 2684, by Rep. Warren Chisum, R-Pampa: Encourages couples filing for divorce to attend a 10-hour crisis marriage counseling course. The instruction must include conflict management and forgiveness skills.

_SB 583, by Sen. Dan Patrick, R-Houston: Requires a 180-day, or six-month, waiting period for couples seeking a no-fault divorce, up from the current two months. The waiting time would be three months if the couple undergoes 10 hours of marital counseling.

_House Bill 2685, by Rep. Warren Chisum, R-Pampa: Waives the $30 marriage license fee and 72-hour marriage waiting period for couples who take premarital instruction courses. An accompanying bill would make some federal money allocated to the state available for courses.

Utah enacts divorce prevention / trial separation package

                       Text of the legislation, as enacted

                  

In March, 2007, Utah legislator Lorie Fowlke wrote to Smart Marriages:

I am an attorney and Utah state legislator, and attended your conference last year in Atlanta. I just passed the nation's first divorce orientation legislation, HB 128 and it has been funded! This bill is in addition to the already required 2 hour divorce education class for parents. The divorce orientation class is to help them understand the impacts of divorce, provide resources for strengthening their marriage, and resources to go through the divorce and deal with post-divorce issues with less pain, if they proceed. It also allows couples to file for a temporary separation, WITHOUT filing for divorce, for up to one year. During the separation, they must take the course. If they proceed with the divorce, the relatively small filing fee for the temporary separation is applied to the divorce filing fee. It passed the HOUSE unanimously and the Senate with only one dissenting vote. The court administrator's office is ready to begin implementation through the office that now administers the divorce education class for parents.

I would like people to know about this legislation so that they can introduce something similar in their state. I appreciate all that you do for marriage and families in this country.

Copy and paste this URL into your browser and you will have several options
to retrieve the text or even listen to committee and floor debates:   
http://le.utah.gov/~2007/htmdoc/hbillhtm/HB0128S01.htm

Lorie D. Fowlke
Representative
District 59
Orem, Utah