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Margaret Klaw Headshot

Permission to Divorce

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Is it too easy to get divorced? Huh? That was my reaction when I got a call from the producer of a radio show who wanted to know if I could discuss/debate that issue with a lawyer who co-chairs the Coalition for Divorce Reform, an organization whose mission is to make it harder to get divorced. Really. Marriage as an institution needs to be saved, they say. No-fault divorce -- surely one of the most universally popular social reforms of the modern era -- is a disaster, they say. The coalition has developed model legislation which would require that if a couple has minor children, both spouses must complete a "divorce education curriculum," followed by an eight-month "reconciliation and reflection period" before a divorce action can even be filed.

Adoption of this statute would be an unmitigated disaster. Most egregiously, take the issue of domestic violence. Although there is an exception in the legislation for a spouse who has a protection order against the other spouse, this category doesn't come close to including all survivors of domestic violence. I've represented numerous women who are deathly afraid of their abusive husbands but don't have protection orders because they were threatened with further abuse if they ever took that step. Or sometimes the abuse took place in the past, making the spouse ineligible to obtain a protection order but fearful nonetheless. Forcing women (or men) who have finally gained up the courage and resolve to get out of abusive marriages -- often, they tell me, for the sake of their children -- to jump through these hurdles in order to start a divorce action is downright cruel. It's also dangerous. To have to participate in a course which the legislation dictates must include tutelage in the benefits of reconciling and restoring marriages, and then wait another eight months before being permitted to begin a divorce action, places the fearful spouse at heightened risk of retaliatory violence and the children at risk of escalating conflict between their parents. And for what purpose?

Which illustrates the bigger issue. Do we really want to go back to a time when a paternalistic state gets to decide the validity of a person's reasons for wanting a divorce? Or what's best for our kids? Not one of the hundreds of people I've represented in divorce cases has ever told me they wished it were harder to get divorced. I see no evidence whatsoever that people take divorce lightly. This is what I see: They are sad. They are scared. They cry. They are worried about their kids. They feel that they have failed. By the time they make it to my office, they have tried counseling, they have tried to live with addiction or financial disaster or mental illness or even domestic violence.

The problem is not why people are getting divorced, which is nobody's business but theirs. It's the way they're going about it. All the long-term research shows that what's bad for children of divorce is a high level of conflict between their parents. What policy-makers and family lawyers should be focusing on is promoting less adversarial and more child-centered ways to get divorced, by keeping families out of court and helping them make their own decisions through mediation, collaborative law, or just plain working it out themselves. That is the divorce reform we need.

Interested in hearing the debate and discussion between me and Beverly Willett, co-chair of the Coalition for Divorce Reform? Listen, at Radio Times, WHYY, April 16, 2014.