I have been reading with interest some of the blogs regarding the Parental Divorce Reduction Act. Many of the ideas seem excellent; some of them I disagree with.
As a specialist in family law for over 40 years, I strongly believe that a divorce should be the last resort, not the first resort, and that too many people will file for divorce, often for the wrong reasons. The Act's purpose is to reduce unnecessary divorce, decrease parental conflict and litigation surrounding a divorce, and educate parents regarding the impact of divorce on families. These are all admirable goals.
There are some key provisions to the Act that I would like to discuss. The first requirement is that there be counseling prior to commencing an action for divorce if there is a minor child of the marriage. The Act requires parents to complete a divorce education curriculum, followed by an eight-month reconciliation reflection period. The Act goes not to state that this will apply unless there is domestic abuse or criminal activity. The Act also goes on to state that the counseling provisions will be self-funding through additional fees regarding marriage licenses.
Here are some of my comments and thoughts regard the aforementioned key provisions of the Act. My first question is how will the Act be funded? The proposals for self-funding make a lot of sense, but the problem I see is that right now, especially in Michigan where I practice, along with many other States, we've been going through a severe recession and there are not enough dollars to go around to keep the present system working fully much less adding other requirements and costs.
The main problem I see is the waiting period if there are minor children of eight months before filing a petition to the end the marriage. The following are my thoughts and comments:
1. Many states require that the parties live separately and apart for at least a year before filing. It seems that this would be in conflict, because if people are trying to save a marriage, they normally do not separate.
2. In Michigan where I practice, if there are minor children, after filing there is a six month statutory waiting period to give people the time to reflect and make sure that they want to go forward and finalize the divorce because of the impact of a divorce on children.
3. If, after the counseling is completed and one or both of the parties still want to go ahead with the divorce, I question the need for the eight month waiting period before filing, and would argue that after filing, there could be an extension of the six month period to eight months.
4. Often people need court protection. Let me give you some examples.
(1) If one party is failing to pay bills, or is hiding money or transferring assets, there is a need for immediate court intervention and protection.
(2) The Act has an exclusion for domestic violence. How do you define domestic violence? In a situation involving physical violence, it is easy to define.
(3) But what about situations where there has been a history of threats and coercion, but without actual physical violence?
(4) What about a situation where one spouse is using intimidation towards the other?
(5) What about the situation where there is emotional abuse, but no physical abuse?
(6) What if one spouse is using the children to relay messages or putting the children in a very uncomfortable position, but there is no physical abuse?
(7) What if one spouse is using economic abuse towards the other by failing to disclose assets, or keeping control of the finances?
As a practitioner with extensive experience over many years specializing in family law, I have concerns, because many marriages have an imbalance of power between the parties. Often, one spouse is very controlling, and the other spouse feels powerless. These are reasons why the idea of an eight-month cooling period sounds nice as an ideal, but in actuality, may not make a lot of sense even if there are children. Also, there are a lot of attorneys who just like to litigate and heat matters up. How will this legislation control that?
In conclusion, while I believe there is a lot that is good in the proposed legislation to reform marriage and save as many marriages as possible I do have some questions and a lot of reservations. Let me know what other thoughts or comments that you have.
By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222