By Mike McManus
The following is an abbreviated version of my testimony of February 5, 2013 to the Louisiana Marriage Commission.
No Fault Divorce Reform
I suggest that Louisiana consider two different No Fault Divorce Reform strategies. The first is based on the fact that lengthening the time before a couple can get divorced will reduce the divorce rate. One reason America’s divorce rate of 23% after five years is triple the 8% divorce rate of Britain or France is that if a spouse opposes a divorce in those countries, they have to wait 5-6 years to get it.[i] At present, 25 states have a ZERO waiting period or only 20-60 days. Similarly, states that require up to 2 years if a divorce is contested (PA, IL and until last year, MD) have divorce rates 45% lower than 10 Hot Head states with a zero requirement (NV,AR, WY, ID, OK, KY, MS, FL, Al, ME):. 5.67 divorces per 1,000 people vs. 3.1 divorces per 1,000.)
● Parental Divorce Reform Act (PDRA) or Second Chances. PDRA is proposed by the Coalition for Divorce Reform (www.divorcereform.us) that I helped create. A similar bill was introduced in Minnesota, sparked by Prof. Bill Doherty ([email protected]) called Second Chances. The Institute for American Values published a 60 page paper on this proposal by Doherty and Leah Sears, the former Chief Justice of Georgia. The bills have similarities.
1. Both propose that if a couple has children, they would have to take a course on the impact of divorce on children and adults before the divorce is filed. PDRA’s course must be taken in person (except for rural areas where face-to-face instruction is not available), but Second Chances allows it to be online. The PDRA also includes marriage education which covers the value of reconciliation, and actually teaches communication and conflict resolution skills. The hope is that the PDRA course would persuade many couples to work at their marriage rather than divorce.
2. PDRA proposed couples wait 8 months for the divorce to be filed. Second Chances would require a year’s delay. It would also require the complaining spouse to give a written notice in advance of an intent to file for divorce. The couple would have to take the course on kids before filing for divorce.
3. PDRA requires the couple take marriage education classes to improve their skills of communication and conflict resolution, which would save more marriages. However, couples need not take the classes together. Most marriages fail because couples do not know how to talk about their differences in a satisfying, constructive way. Fortunately that can be taught. Second Chances does not require the classes, but only encourages them.
4. Couples would be able to live under the same roof during the 8-12 month delay, which would encourage reconciliation. Louisiana and all states with waiting periods require couples to move apart. That only encourages one or both spouses to date. Second Chances was introduced in Minnesota and won the backing of the Bar Association, thanks to patient lobbying by University of Minnesota Professor Bill Doherty. PDRA is being considered in several states,.
Louisiana has an advantage: Louisiana already requires a year’s delay if the couple has children. That is the most difficult element of PDRA or Second Chances to sell to a Legislature. Only seven states (NY, MD, SC, VA, WV, AR, and NC) now require a full year’s delay. For example, Minnesota has a ZERO waiting period at present, and is thus one of the Hot Head States that I criticize. If Louisiana were to adopt PDRA, for example, it would simply be adding six months of delay to couples without children and the educational elements of a four to eight-hour course on the impact of divorce on children and adults, and classes to improve their skills of communication and conflict resolution. These educational elements are not controversial, and would make sense to legislators.
A second reason the Louisiana Legislature would find PDRA popular with legislators is that during the minimum of an 8 month delay before any divorce papers are filed – the couple could remain under the same roof. Current Louisiana law requires the couple to move apart for the year. That only encourages one party or the other to begin dating. Obviously, that increases odds of divorce. PDRA would allow the couple to remain under the same roof – to encourage reconciliation. This would not be a controversial reform with the Legislature. It makes pragmatic sense. Indeed it would be a popular option to the present requirement that they move apart.
The state should be on the side of marriage preservation not divorce. It should discourage irresponsible unilateral divorce and marital irresponsibility.
● Responsible Spouse is a second No Fault Divorce reform that would cure one of the worst aspects of No Fault – the fact that in 4 of 5 cases, one spouse opposes the divorce.[ii] This bill would designate the spouse trying to save the marriage as the Responsible Spouse, who, would get 60% to 100% of marital assets and 50%-67% of child custody time (with a judge setting the exact split). This proposal would give the spouse trying to save the marriage, important leverage to fight to restore it. An unhappy mate could file for divorce, but he/she would pay a price of less child custody and fewer assets.
However, if one’s partner is guilty of physical abuse, adultery, abandonment, etc., and there is actual evidence, with high evidentiary standards – then the person filing for divorce would be designated the Responsible Spouse. So a battered wife, would be the Responsible Spouse in filing for divorce, and would get most assets, etc.
If children are involved, a Missouri version of the bill would divide custody 50-50, based on the number of years till the child is 18. If he is aged 4, the mother would get custody for 7 years till age 11, then the father would have 7 years of custody till age 18. This makes practical sense. Young children need the love of a mother most, and teenagers most need the discipline a father can offer. This custody reversal would happen automatically, unless a spouse is found unfit or waives it.
The Responsible Spouse reform is not a part of the PDRA or Second Chances, but I endorse it and I believe it would cut the divorce rate in half by itself. It is more controversial, and could wait a year after PDRA is passed.
Subsidize Marriage, Not Cohabitation
A recent scholarly report indicates that the rise of cohabitation “is the largest unrecognized threat to the quality and stability of children’s family lives.”[iii] Some 42% of American children will live in a cohabiting household and “are markedly more likely to be physically, sexually and emotionally abused than children in both intact, married families and single parent families.” That is double the 23% of kids impacted by divorce. However, the report does not suggest a remedy.
I propose a strategy to increase the marriage rate and reverse the 41% unwed birth rate. How? Replace state subsidies of cohabitation with subsidies for marriage. Millions of single mothers receive welfare, Medicaid, food stamps and other subsidies on the assumption they are bringing up children alone. Most, however, are cohabiting and have the benefit of their partner’s income, as if they were married. But if they marry, they lose all subsidies, which discourages marriage. Therefore, I propose this answer:
Gov. Bobby Jindal should say: “Louisiana believes in marriage. Therefore, I propose that if cohabiting couples with children marry, that they would continue receiving Medicaid, food stamps, etc. for two years, and then these benefits would be tapered off over 3-4 years. That would be the best outcome for the adults, the children, and the state. The state should subsidize marriage not cohabitation.”
Louisiana could be the first state to reform No Fault Divorce, cutting its divorce rate in half. If its example were followed by the nation, there would be 500,000 fewer divorces each year and 5 million fewer divorces in a decade!
Cohabitation Reform would increase Louisiana’s marriage rate and reduce its and slash its 53% unwed birth rate, second highest in the nation.
If enacted together, Louisiana would show the nation how to rebuild marriage in America.
[i] Andrew Cherlin, The Marriage-Go-Round: The State of Marriage and the Family in America Today, Alfred A. Knopf, New York, 2009, p. 206
[ii] Frank Furstenberg and Andrew Cherlin, Divided Families, (Cambridge, MA, Harvard University Press, 1991, p. 22.
[iii] W. Bradford Wilcox, Why Marriage Matters: Thirty Conclusions from the Social Sciences, Institute for American Values, August, 2011.