An Early Warning/Prevention System for Divorce:
The Divorce Early Warning and Prevention Act

A sample Early Warning and Prevention Notice.


June 24, 2005

Please send questions and comments to the lead drafter, John Crouch

Originally posted and maintained by Americans for Divorce Reform; now maintained by John Crouch. You can call me at (703) 528-6700 or e-mail me through my law office's web site.

Introduction

This Act is the state-legislation portion of a common legislative platform adopted by a large number of marriage skills educators, therapists, family policy experts and healthy marriage movement leaders at a meeting in New York City in March, 2004. The platform was described in a Statement signed by some of those who attended, but was supported by many who did not join in that Statement for reasons unrelated to the legislative platform. It requires:

Marriage and family education in late secondary school; and relationship education in early secondary school. (Section IV)
A tax credit as an incentive for marital or premarital education. (Section III)
An early warning and prevention period before divorce, lasting either three months, six months, one year, or two years, depending on whether there are children and whether the spouses reach an agreement on the divorce and its consequences. (Section I)

To make these policies work smoothly and productively, it also provides for:

Having courts and agencies that deal with families provide information about marriage education to people who may need it. (Section II)
Letting people who have not yet filed for divorce nonetheless resolve certain pressing issues in court, or in out-of-court agreements. (Section V)

The provisions on marriage education are written to be compatible with the existing range of programs and providers, and flexible enough to accommodate changes in the field.

The provisions on providing marriage education information are consistent with family courts' and agencies' contemporary role of referring families to a wide range of services. The recent development of state and local healthy marriage resource centers, often federally funded, will help immensely with the logistics and financing of gathering and disseminating referral information. These centers work online and offline to give current referral information to the public, and to agencies and professionals that provide referrals to the public.

The early warning and prevention periods are modeled on existing no-fault state laws in a few low-divorce-rate "blue" states that require a two-year or 18-month wait before a no-fault divorce when only one spouse wants the divorce, but shorten it considerably if the parties negotiate a voluntary settlement. .

Unlike earlier proposals, which turned away from no-fault back towards fault divorce, this proposal builds on three marriage-preserving elements of no-fault divorce law: waiting periods, mutual consent, and marriage counseling. But it changes how these elements operate, to adapt to changes in society since the no-fault laws were written.

This Act fundamentally redesigns waiting periods so that they can better serve their purpose of letting people carefully consider divorce and try to repair their marriage. Instead of making people live apart, or file for divorce, to start their waiting period, it begins the waiting period with something a person can do before deciding to end the marriage - sharing an "Early Warning and Prevention Notice" with their spouse. The Notice makes it clear that the marriage has serious problems that are leading towards divorce, and it tells both spouses how to find marriage skills education and counseling.

Men and women have great reserves of energy and will to work on their marriage, but they are often bad at communicating to each other that there are truly serious problems in the marriage. Professionals working with couples have noted that typically wives will spend years trying everything they know, and finally give up on the marriage, long before husbands recognize that there is a serious problem. (Weiner-Davis (2001), The Divorce Remedy, Simon & Schuster, pp. 39-40.) The law is often a blunt instrument in personal affairs, but one thing it is good at is giving people commonly accepted ways to "give notice" of important things to each other. This Act gives couples a common language to warn each other when they think the marriage is in danger, and begin working to repair it before it is too late. And it does so at the very beginning of the process, when counseling and education are more effective. Both spouses are more likely to have some hope and commitment at that point than after a long separation, conflicts over children and finances, bitter divorce litigation, and the new relationships that often begin during separation.

Even if a divorce cannot be avoided, this Act gives both spouses time to adjust to, and accept, the divorce, so that they will be psychologically ready to collaboratively negotiate the economic arrangements and focus on their children's needs. (See, e.g., Anita Robboy (2002), Aftermarriage: The Myth of Divorce, Indianapolis: Alpha Books. pp. 36-39 ; Pauline Tesler (2001), Collaborative Law. American Bar Association, p. 188.)

Contested divorces with children are usually long and difficult, with or without a waiting period. The only thing this Act takes away from families in such divorces is the seductive illusion that divorce is going to be easy and convenient, or that fault grounds can speed up the process.

Fundamentally Different From a "Waiting Period"

Awaiting period is typically a burden placed by the government on people who have already decided to do something, in hopes that they will change their minds. It is between the government and the individual. In contrast, the early warning and prevention period is mostly a social and legal duty that married people owe to each other, not to the state. It is a notice requirement, like the widely-accepted norms of two weeks' notice for quitting a job, or one month's notice for eviction. Thus it has the potential to move from the statute books into the realm of common law that people carry around in their heads, that they think of as the rules of life. That is our best hope for using the law to influence decisions people make in their private lives, before they come into contact with the legal system.

Pros and Cons of Existing Waiting Period Laws

Three states, all with relatively very low divorce rates, already have two-year waiting periods, which are cut to one year or less in cases of mutual consent. About half the states have shorter waiting periods, ranging from a few weeks to six months to a year, and they correlate slightly with lower divorce rates. But existing waiting periods are clumsily designed tools for saving marriages in today's society.

Waiting periods in public policy are intended to make individuals' decisions be more deliberate, considered, and informed. They fail to further those ends if the way they are enacted, or other related rules, tend to give the individual no choice once the period has begun. For example, if there is a waiting period to buy a gun, the buyer can be reasonably certain that at the end of the period, she will be able to choose to buy a gun, or not to buy one. But divorce usually does not work that way. In divorce, there are two individuals making decisions separately, and in reaction to each other. Existing waiting period laws encourage one spouse to either move out and stay out, or file for divorce, or both, as soon as possible after deciding that divorce is probably imminent. The resulting distrust, conflict and litigation help pull both spouses away from the marriage. If they do consider reconciliation, each spouse has to consider not only his or her own commitment to the marriage, but the other spouse's apparent level of commitment, and the fact that there is currently no way to bindingly agree to a long-term marriage.

Mutual Consent

Most recent divorce law reform efforts have been based on ideals of individual consent and contract: either protecting the contractual rights of parents of minor children by requiring mutual consent for a no-fault divorce, or letting a couple choose which divorce laws will apply in their marriage. This Act gives a major incentive for mutual consent, by shortening the waiting period significantly. It restores mutual consent to a central place in the public and private dialogue of divorce.

Fault and Other Difficult Issues Not Implicated

Even without mutual consent, though, the required early warning and prevention period is two years at most. No one is "trapped" in a marriage, so it is not necessary to get bogged down in defining exactly when a marriage is so bad that unilateral divorce should be allowed. That is a major advantage that this Act, being only a modest barrier to divorce, has over more far-reaching reforms. There should be no controversies about reintroducing or expanding fault grounds.

Unlike previous reform attempts, this one cannot be said to even slightly encourage "fault" divorce. In fact, it reduces the role of "fault" divorce laws in states that still have them. The waiting periods apply regardless of fault, so they give no incentive to start a fault divorce. And Part V on "Temporary Relief" removes one of the principal reasons that people still file "fault" divorces - getting into court faster - by letting spouses get certain temporary relief without filing for divorce.

Exceptions to the early warning and prevention period

However, the early warning and prevention period does not apply in a few clearly-defined situations: after a criminal conviction or a long-term restraining order for domestic violence or child abuse, or in divorces on grounds of imprisonment or commitment to a mental hospital (in states that already have those divorce grounds). These exceptions all depend on judicial proceedings outside of the divorce case; not on a determination by the divorce court.

Fitting into existing law

Instead of modifying existing divorce grounds, which vary widely among states with overlapping, confusing terminology for both no-fault and fault grounds, we introduce a new provision that can be added to any state's divorce laws. It does not have to mesh with existing wording, because it would be separate from the grounds of divorce. No existing laws would be amended or repealed.

TEXT OF THE ACT


I. EARLY WARNING AND PREVENTION PERIOD BEFORE DIVORCE

A. No one may ask a court for a divorce [replace with "dissolution" in states using that term]
until an Early Warning and Prevention Period has elapsed, except:
[1. On grounds of incarceration;] [To be used only in states where this is a divorce ground. Use the term used in present state law, and add a specific state code reference.]
[2. On grounds of institutionalization or insanity;]
[To be used only in states where this is a divorce ground. Use the term used in present state law, and add a specific state code reference.]
[3. When the dissolution is in the nature of annulment;] [To be used only in states where civil annulments and divorces are both called "dissolutions". Add references to specific state code sections.]
4. When the respondent has been convicted, during the marriage, of a violent or sexual felony against the petitioner or a minor child; or
5. When a court has made a final, non-preliminary civil protection order against the divorce respondent, based on a final determination that the respondent committed physical violence against the divorce petitioner or a minor child of the divorce petitioner, where respondent had actual advance notice and an opportunity to participate in an evidentiary hearing.

B. The length of the Early Warning and Prevention Period is two years for couples who have had children together by birth or adoption, and one year for couples who never have; but the Period shall be reduced to one-quarter of its length if the parties have a written agreement on the divorce and on all issues that a court would otherwise decide in the divorce case.

C. The Early Warning and Prevention Period begins-
1. When one spouse delivers an Early Warning and Prevention Notice to the other spouse, or
2. When the spouses begin permanently living apart, only in cases where
(a) The respondent cannot be located,
(b) The court therefore authorizes process service by publication, and
(c) No Early Warning and Prevention Notice was delivered.

D. An Early Warning and Prevention Notice is a document on paper, signed by a married person and delivered to the person's spouse, that states:
1. That the couple has serious problems that may lead to separation or divorce;
2. That information about marriage education and counseling resources is available from courts that deal with divorces or other family-related cases;
3. That "delivering this document makes divorce legally possible after an Early Warning and Prevention Period";
4. Both spouses' names;
5. Who delivered it and who received it; and
6. The date, method and address of delivery.

E. All courts having original jurisdiction over divorces or other domestic relations cases shall provide Early Warning and Prevention Notice forms to the public.
1. The courts shall attach to the forms available information about marriage education and counseling resources, as described in Part III of this Act.
2. The forms shall include at least
(a) the heading "Marriage of _______ and ________";
(b) the title "Early Warning and Prevention Notice";
(c) the statements required by I-D;
(d) a space to list steps that need to be taken to repair the marriage; and
(e) a check-box and instructions so that the person completing the form may choose to omit the statement, described in I-D(3), that "delivering this document makes divorce legally possible after an Early Warning and Prevention Period".
3. If the statement described in I-D(3)is omitted, the Early Warning and Prevention Notice is incomplete and has no legal effect under this Act.
4. An Early Warning and Prevention Notice need not be on a court-provided form.

F. Either spouse may file the original or a copy of the Early Warning and Prevention Notice with a court having jurisdiction over divorces. This filing has no legal effect and is not a substitute for delivery to the spouse. The court shall keep those documents and index them under the heading "Marriage of _______ and ________". The court must not allow general public access to those documents before domestic relations litigation between the spouses has begun in that court.

G. Residency and domicile requirements for divorce are satisfied if the respondent in a divorce case met those requirements at the time when either spouse delivered an Early Warning and Prevention Notice to the other.

H. An Early Warning and Prevention Notice ceases to have any legal effect under any provisions of this Act three years after it is delivered, if the spouses are living together; but if it has been renewed by delivering a new Notice within those three years, the original Notice's legal effect shall continue.

I. In cases where the Early Warning and Prevention Period would be two years, with no reductions, in computing the amount of time of the Early Warning and Prevention Period that has elapsed no time shall be counted during which a spouse was a member of the U.S. Armed Forces and was serving unaccompanied by his or her spouse:
1. on active duty in a combat zone as designated by the President of the United States by Executive Order pursuant to 26 USC § 112; or
2. accruing imminent danger pay pursuant to 37 USCS § 310; or
3. on active sea duty, as defined in 37 USC § 305a.

Commentary

Clients often lament that they cannot use the legal system to get their spouse to change certain behaviors unless they initiate a separation or file for divorce, which would destroy the marriage they are trying to save. This Act gives them something they can do, and which the other spouse should be able to understand.

Some spouses may want to use the Warning/Notice to make the other spouse understand and address certain problems, but may not want to take steps to make a divorce imminent at that point, so I-E-3 gives them that option.

I-B. "Agreement on the divorce": There are many ways to codify a requirement for mutual consent in a divorce law. Divorce lawyers routinely deal with clients who think they have started a friendly, uncontested divorce, because they simply have not discussed the economic and child custody issues before deciding to divorce. This Act uses the method used in Virginia and Switzerland, which require a complete written agreement on all issues in the divorce. However, this Act also requires agreement on the divorce itself - a subject that is actually not covered in most separation agreements under present law. Spouses' willingness to settle financial and child-related issues should not harm their interest in trying to repair their marriage. A couple who have a complete separation agreement that does not include an agreement on the divorce may later execute a separate document agreeing on the divorce.

II. MARRIAGE EDUCATION INFORMATION

All courts, and other governmental or government-related agencies, dealing with families shall provide written information about marriage education and counseling resources, whenever such resources are available within a reasonable distance of the court or agency's geographical area and the information has been provided to the court or agency.

Commentary

This Act emphasizes the value of increasing the practical information about, and access to, services at the local level, rather than a top-down mandate for services that are not yet universally available in all areas. Not making programs mandatory also takes pressure off the issue of who is allowed to provide services. Most marriage education legislation and covenant marriage legislation has been drafted by people unfamiliar with marriage education, and restricts it to existing state-licensed professions. The problem is that most members of those professions do not in fact provide marriage education and may not even be familiar with it; and many secular or lay providers who do provide it are left out of the legislation.

A. Places where information must be available under this Act include:
1. Places where marriage licenses are issued.
2. Offices of civil marriage celebrants.
3. Governmental providers of family services or counseling, including any that provide services to parents or to former prisoners.
4. Court clerks' offices that deal with domestic relations or juvenile delinquency cases.
5. All providers of court-referred or government-referred divorce education, parenting education, or custody education programs.

B. When information must be provided.

When parties contact a court directly to express an intention to marry, to apply for a marriage license, to be married by a civil marriage celebrant, to procure or file an Early Warning and Prevention Notice form, to file for temporary relief during separation, or to file for divorce, the clerk or celebrant shall ask them if they have received marriage education, and if the answer is negative or vague, shall give them written information about marriage education and counseling resources.

C. Providers that must be included.

The court or agency must provide contact information about any of the following that are available within a reasonable distance of the court or agency's geographical area, if the court or agency has received usable contact information for them:
1. Any member of the clergy, or a clergy-supervised marriage education program;
2. Any other trained marriage educator approved or listed by the court or agency.
3. Marriage education providers, programs or referral services listed, funded or authorized by:
(a) The United States Department of Health and Human Services;
(b) The United States Department of Agriculture Cooperative Extension Service;
(c) The United States Department of Defense and the individual military services of the United States;
(d) Any other federal, state or local government agency;
(e) A Community Marriage Policy, Healthy Marriage Initiative, Marriage Resource Center, or similar institution (including the National Healthy Marriage Resource Center); or
(f) Smart Marriages / The Coalition for Marriage, Family and Couples Education (http://www.smartmarriages.com) or any of the programs listed on its web site or presented at one of its conferences.

D. Religious and secular providers

Information must be provided regardless of whether the education provider or program has a religious affiliation, or focuses on any segment of the population. Courts and agencies shall not remove indicators of a religious, racial, ethnic or other focus from the provider's contact information.

III. MARRIAGE EDUCATION TAX CREDIT

A. A credit of up to $100.00 is allowed, against the income tax imposed by Code § _________, for any costs paid by the taxpayer for premarital, marital or relationship education provided by a provider described in Section II-C of this Act.

B. If the premarital, marital or relationship education includes a premarital or marital inventory (i.e., one which is similar in nature, form and research-based development to such inventories as PREPARE, ENRICH, RELATE or FOCCUS), then the maximum credit allowed by this section is increased by $35.00 and includes the cost of the inventory.

C. This section applies regardless of the tax filing status or marital status of the taxpayer or taxpayers.

D. This section applies regardless of whether the education program or the inventory is provided by a religious institution or includes any religious content.

Commentary

This tax credit is based on a bill proposed in Michigan.

Some marriage education programs are adapted to particular religions, ethnic groups, age brackets and other life circumstances, but they all teach the same basic skills and further the same secular purposes of improving marriages and reducing divorce.

A premarital inventory is a questionnaire designed to reveal areas of compatibility and incompatibility that couples need to address, and to ensure that difficult issues are discussed openly as soon as possible. These inventories are completely different from commercial "matchmaking" questionnaires, and are for couples who are married or considering marriage. They are usually processed by computer, but they must be interpreted for the couple by a trained marriage educator as part of a counseling/education process. The couple usually pays an additional processing fee for the inventory, currently up to $35.00, so that amount is added to the tax credit for couples who take inventories and pay it. Some proposed premarital education legislation has required an inventory; this Act does not require it, because many existing programs do not include one.

IV. MARRIAGE AND RELATIONSHIP EDUCATION IN SECONDARY SCHOOLS

State statutes on requirements for graduation from secondary school should be amended as follows. The particular courses, grade levels and areas that these units will fit into depends on the existing curriculum and requirements in each state, so the only legislative language specified verbatim below is the content of the required curriculum, not the courses or grade levels that it should be a part of, or the number of hours or units.

The early secondary school curriculum should include required instruction in:
Healthy relationship formation and maintenance, including instruction on developing conflict-management/resolution skills; communication skills; recognizing, preventing and responding to relationship violence; the importance of healthy marriages; and parenting responsibility.

The late secondary school curriculum, in the last two years if possible. should include required instruction in:
Marriage and family education, including the nature and value of marital commitments; characteristics and formation of healthy marriages; conflict management/resolution skills; couple communication skills, parenting responsibility; financial responsibility, effects of marriage, divorce and unwed parenthood; recognizing, preventing and responding to family and relationship violence; and laws on marriage, divorce, parental duties, and domestic violence.

Commentary

This section is adapted from laws passed in Florida and Washington State. It is important to ensure that school systems will follow through and implement the new instruction requirements, and not just re-name existing units that do not really address or value marriage. States should explore federal funding of these initiatives through the Temporary Assistance to Needy Families (TANF) program, which authorizes states to use funds saved by reducing welfare rolls under the 1996 welfare reforms for a wide range of poverty-prevention programs, including marriage education. There are many well-developed curricula available for age-appropriate marriage and relationship education, so states do not need to invent their own curricula from scratch. For more information see The Dibble Fund for Marriage Education at www.dibblefund.org; Pearson (2000), Can Kids Get Smart About Marriage? A Veteran Teacher Reviews Some Leading Marriage and Relationship Education Programs at http://marriage.rutgers.edu/Publications/pubCanKids.htm; and the CMFCE Directory of Youth and School Based Marriage Education Programs at www.smartmarriages.com/school.html.

V. RIGHTS OF SPOUSES BEFORE DIVORCE

Commentary

This Part of the Act mostly restates general rules - already prevalent in most states but are lacking in a few states - which minimize the harm to the spouses' and children's interests from living apart while considering divorce. It also includes some additional protections for separated families.

A. Temporary Relief.

Married persons living apart, whether or not they have asked a court for divorce, separation, annulment or dissolution, may nonetheless ask for any of the following temporary relief, in a court that would have jurisdiction in a divorce case or other domestic relations case between the parties:
1. Parenting time (i.e. child custody, visitation, access, etc.), subject to state and federal laws on jurisdiction for such cases.
2. Child support, subject to state and federal laws on jurisdiction for such cases.
3. Protection from domestic violence.
4. Spousal support; preservation of marital or community property, and fair, equitable access to marital or community property.
5. Preservation of evidence of the existence, character and value of property, grounds of divorce, or any other issues in a future divorce or separation case.
6. Court-ordered marriage education, marriage counseling for the purpose of repairing the marriage, custody/parenting education, or mediation.

Commentary

Proposals to limit divorce often incur the knee-jerk response that abused or abandoned spouses will be unable to get any relief if the law does not let them file for divorce right away. In general, this is completely untrue, as divorce lawyers know well. However, in some states there is reportedly no way to seek temporary relief without filing for divorce.

We have chosen to respond to this issue directly and thoroughly, by reiterating the pre-divorce relief that is already almost universally available, and adding some that should be available. Relief that is already available in a state should not be edited out of this Act when it is introduced, because this Section lists it in one place, clearly and simply, corrects common misconceptions about what abandoned and abused spouses can get, and gives more comprehensive help for pre-divorce families than many states' laws do.

This Section broadens existing rights of action by extending them to people who have not filed for divorce and may not have grounds for divorce. Therefore, "courts having jurisdiction" does not mean that a court can act only where divorce grounds already exist, or only where pre-existing state law gives the court jurisdiction to grant that particular relief. It means that courts are still limited by statutes and case law on personal and subject-matter jurisdiction, including child support and custody jurisdiction statutes.

V-A-4. Preservation of property may include, among more obvious things, orders to make payments on mortgages or other debts, and total or partial prohibitions on incurring further joint debts by using certain credit cards, convenience checks, or overdraft protection plans. Preservation of property must be balanced against the parties' ongoing needs. Access to property may include, for example, exclusive possession of a home or vehicle, or a provisional division of certain funds for living expenses and legal expenses.

V-A-5. Increased waiting periods for divorce have been criticized on the grounds that they would, and in some states already do, complicate property division and other litigation in the divorce. Confusion or injustice sometimes arises from property values changing between the date of separation and the trial date; or from post-separation mortgage payments, pension contributions, and other transactions. This is a problem in a few states, but it does not have to be. This subsection on preserving evidence helps fix the problem. States could also help by making clearer rules on when assets are valued, and how the value of the marital-property share is or is not affected by post-separation events. But no legal system can abolish the messy details of life, so this will be an issue in some cases regardless of the length of the waiting period.

V-A-6. Many states have provisions for court-ordered marriage counseling for the sake of reconciliation, though these have fallen completely into disuse. Such counseling is much more likely to be effective at or before the beginning of separation than after the spouses have gone through a waiting period and filed for divorce.

B. Agreements.

Married persons may enter into written agreements, which are legally binding, subject to the general rules of the law of contracts, even if they are not submitted to a court, and which may:
1. Resolve issues that a court would otherwise decide in a divorce or separation case, including property, debt, child and spousal support, child custody and parenting time, subject to courts' ongoing authority to modify child-related arrangements when circumstances change;
2. Resolve other issues that a court could not resolve in a domestic relations case; and
3. State whether or not the agreement constitutes consent to a divorce.

Commentary

This simply restates the law in most states, but there are a few where people apparently have to start a case in the courts, and essentially commit to divorce, in order to make a binding agreement.

The provision letting an agreement say "whether the agreement constitutes consent to a divorce" is included because there are people who do not want a divorce, but who enter written agreements to settle the practical issues relating to separation. If these agreements had the effect of shortening the waiting period regardless of the parties' wishes, that would discourage settlement of disagreements. For the same reason, Section I-B-2 refers to "a written agreement on the divorce and all related issues that a court would otherwise decide".

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Originally posted and maintained by Americans for Divorce Reform; now maintained by John Crouch. You can call me at (703) 528-6700 or e-mail me through my law office's web site.