CARLSBAD, Calif., March 30, 2017 – Once the holiday season is over, family law attorneys all over the United States get ready for the onrush of clients through the door at the beginning of the year. From January through March, the number of divorces filed rises as much as 30 percent depending on the statistics you believe – peaking right now in March.
Starting 50 years ago in California, each state adopted no-fault divorce laws. By 1980 there was only one state holding out. New York was the last state to get on board and sign a no-fault divorce law in 2010. No-fault divorce laws allow couples to get divorced by mutual agreement, without having to place blame or name a specific “reason” other than “irreconcilable differences” or even “incompatibility.”
During this period of time, the divorce rate rose in the United States by 20 to 25 percent depending on the study you choose.
Now a Texas state legislator thinks it’s time to reconsider the no-fault divorce laws. Representative Matt Krause of Fort Worth, Texas says he wants to “reinforce the sanctity of marriage,” and that he believes getting rid of no-fault divorce will help couples work harder on restoring their relationships though tough times, or even give more thought to getting married in the first place.
Krause, who has been married 14 years, plans to introduce a bill this year to remove “insupportability” as grounds for divorce, and require couples to live separately for three years before filing for divorce. Couples unwilling to wait could file a fault type divorce on the grounds of adultery, cruelty, or abandonment. Couples could also file without waiting if one spouse was convicted of a felony or confined to a mental institution.
Representative Krause, Lawyer Myra is here to tell you this is a bad idea. Doing away with no-fault divorce is not going to lower the divorce rate. It may also create serious unintended consequences – and we have history to provide us an example.
When the state of New York was on the fence about following the other 49 states in allowing no-fault divorce, its legislators and researchers took a long look at the history to that point of no-fault divorce laws.
One of the reasons no-fault divorces were originally permitted was to reduce the instances of perjury in the legal system. Couples who mutually agreed on getting divorced under a fault system but didn’t have a real “reason” like adultery or abuse would simply agree to make something up. Early no-fault divorce laws still required mutual consent, but the courts realized one spouse could “blackmail” the other spouse for generous financial settlements or other concessions before agreeing to go along. The number of litigated divorces increased as a result until the states moved to no-fault systems, which required one spouse to file for divorce without the consent of the other.
It is true that divorce rates increased in every single state that adopted no-fault divorce – at first. For up to five years, divorce filings increased when the no-fault floodgates first opened. But when this surge caught up with the law, divorce rates settled back down. As all states (except New York) adopted no-fault divorce, the national divorce rate stabilized, and then it dropped and continues to drop.
The peak rate was 23 divorces per 1,000 married couples in 1979. It dropped to 17 divorces per 1,000 couples in 2005. Nearly a decade later, the divorce rate is just four divorces per 1,000 couples in 2014, according to the Centers for Disease Control. In the state of Texas, there are even fewer divorces – just 2.6 divorces per 1,000 couples according to the Texas Department of State Health Services.
There is an even more important reason not to go back to the days before no-fault divorce. A University of Pennsylvania study cited in 2010 when the state of New York was considering the law showed the rate of domestic violence among married couples dropped 30 percent and the suicide rate among married women dropped as much as 16 percent in states after no-fault divorce laws were adopted. These are positive if unintended consequences and we certainly would not benefit from rolling these gains back at the expense of forcing a few more unhappy couples to stay married.
Representative Krause first proposed this legislation in 2015. It narrowly passed approval in a single committee, but failed to make it to the full Texas State Assembly for a vote. Experts say it’s a long shot to be considered again this year.
Representative Krause’s concerns about promoting the societal benefits of marriage may come from a sincere place, but they are misplaced against the societal damage done when the government makes an arbitrary decision about what two people should tolerate in any relationship.
What would be far healthier is educating divorcing couples about their options for avoiding a contentious, litigated divorce by pursuing Alternative Dispute Resolution such as mediation or Collaborative Divorce. This is especially helpful when children are involved. Reducing parental conflict reduces harmful long-term impacts of divorce on children, which is where the real damage of divorce is usually done.
Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.
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