More states stir against ease of 'no fault' divorce

In Spokane, Wash., a judge delays a woman's divorce from her abusive husband when he learns that she's pregnant.

Georgia and several other states consider whether to lengthen the waiting period before marriages can be legally ended. Elsewhere, a growing movement is under way to promote "collaborative divorce," in which couples agree to settle such issues as child custody and finances without going to court - taking some of the civil war, in theory, out of marital breakups.

How - or even whether - to dissolve troubled marriages is becoming a prominent topic of public discussion and political activity.

It's part of the generally conservative marriage movement which includes the option in several states (Arkansas, Louisiana, and Arizona) to choose more restrictive "covenant marriages" and resists same-sex marriages. But the issue crosses ideological and political lines - liberals and conservatives alike worry about the high rates of divorce in this country - and in many ways it comes down to government's role in this most personal of decisions.

In addition, there are a growing number of laws that aren't directly related to the availability of divorce but could affect the instances and impact of failed marriages. Some provide "marriage skills" education in public schools as a way of avoiding divorce; others mandate "custody counseling" for divorce cases involving children.

"Half the states now have provisions for it or require it," says John Crouch, executive director of Americans for Divorce Reform, a small, all-volunteer group in Arlington, Va.

Critics have said that no-fault divorce laws led to an increase in US divorce rates. But recent research indicates that about 10 years after states pass such laws, divorce rates return to previous levels. Also, studies show that such "unilateral divorce" helps reduce the rate of domestic violence and suicide among women.

But now that a generation of Americans - and especially their children - have grown up during a period when divorce lost much of its social stigma and become easier to get, questions are being raised about the practice.

A bill being considered by the Georgia Legislature would extend the waiting period for divorce from 30 days to four months for couples without children and to six months for couples with children. The waiting period could be waived in cases involving spouse abuse, but parents would have to attend special classes on how divorce affects children.

While several states are moving in the same direction, similar bills have been considered and rejected in some states, including New Hampshire and Colorado. Lawmakers in New York - one of the last states which still do not grant no-fault divorces - are debating the need to make divorce easier. Last month, Michigan Gov. Jennifer Granholm vetoed bills that would encourage premarital counseling for couples and require counseling for couples with children who seek divorce.

"Let me be clear: Marriage preservation is a very important issue," Governor Granholm wrote in her veto letter. "But the decisions men and women make about marriage are private decisions. State government should not expand its role into such private matters."

That question of state involvement in private matters is illustrated in a controversial Washington State case. In particular, the case emphasizes the key role individual judges can play in weighing traditions involving marriage and divorce against more modern attitudes about relationships, particularly women's rights.

There, Spokane County Superior Court Judge Paul Bastine delayed the divorce of Shawnna Hughes from her abusive husband on the grounds that she is pregnant.

The episode has outraged many feminists, but the facts in the case are far more complicated than talk-show hosts and pundits around the country have described - including the state's interest in seeking child support from the father (who Ms. Hughes says is not her husband), since Hughes and her two children are on welfare. Meanwhile, both men are in prison on federal drug charges.

Washington State law presumes that a husband is the father of any child born to his former wife within 300 days of a divorce. Judge Bastine ruled that the question of paternity needed to be established before divorce could be granted. The Northwest Women's Law Center and the American Civil Liberties Union of Washington are preparing a legal appeal. A bill in the state legislature would remove pregnancy as a factor in granting divorce.

In less complicated cases, advocates say nonadversarial collaborative divorce reduces the emotional and financial cost of legal separation. This involves a team approach - including financial advisers and mental-health professionals as well as lawyers - seeking resolution without a court fight.

This may take a bit longer than a quick no-fault divorce. But it can end up costing much less than a contested divorce, advocates say, and it is especially beneficial for the children in such cases. Some studies indicate that couples who initiate collaborative divorce proceedings are more likely to stay together in the end than those who go to court - perhaps lowering the rate of divorce.

"It's clearly becoming mainstream," says Susan Hansen, an attorney in Milwaukee whose practice includes mediation and collaborative divorce. "I'm enjoying the opportunity to use my skills to help families, rather than engage in adversarial battles which tend to escalate the financial and emotional expense of divorce."

The question remains whether changing state laws and programs will make a difference in American patterns and practices regarding divorce.

"There are some people who believe that the law makes absolutely no difference in human behavior, but I don't believe that," says Mr. Crouch of Americans for Divorce Reform.

"It's part of changing the culture," he says, "especially laws that are intelligently designed so that they don't just affect what goes on in the courtroom; they actually become part of people's beliefs about what duties they owe to each other - become part of the rules of life."

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