Classic Marriage

New rules for a new generation

April 9, 2001 edition

Part of the Divorce Reform Page, sponsored by Americans for Divorce Reform
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This is a proposal for legislation that would make divorce laws that are stricter than what we have now, but not as strict as what we had in the 1960s. Classic Marriage emphasizes mutual consent, rather than fault or unilateral action, as the most common way of getting a divorce. It would let couples agree to opt out of its restrictions if they have completed marriage skills training. It also strongly encourages such training for all couples.

Classic Marriage gives couples the same choice offered by Covenant Marriage, but with much stronger protections for marriage.

Classic Marriage does not create two kinds of marriage. It assumes that choosing more legal protections for marriage is the norm, not the exception.

Classic Marriage minimizes the bureaucracy imposed on people who try to strengthen their marriages. It does not regulate clergy or other marriage skills trainers, or tell them how to do their jobs.

Its rationale is freedom of contract, not government paternalism. The ability to make binding contracts is vital not just for business, but also for other basic acts of human cooperation, such as marriage and child-raising. The role of the law is to enforce contracts, and to make the process of contracting easier, standardized, informed, and reliable. The law can also recognize that social customs create certain implied or default contracts, which we presume people intend unless they specify otherwise.

Unlike some other proposals, this is not an entirely new framework to replace existing laws and procedures for divorce, custody, property, support etc. It leaves current laws and procedures in place except where it amends them.

There are substantive and procedural changes so that divorce grounds, whether fault or no-fault, can be proven with a minimum of conflict, ugliness, expense, publicity, or involvement of children.

Some sections can be enacted without other sections, to make a narrower bill.
Section 1 -- Choice of Divorce Rules by Couple at Time of Marriage or Later.
Section 2 -- No no-fault divorce until children grown if spouse objects.

Section 3 -- Fault not considered if both consent to any divorce.
Section 4 -- Marriage Education
Section 5 -- Evidence of fault or breakdown; Children and publicity.
Section 6 -- Not retroactive except by mutual consent
Section 7-- Couples married outside this state
Section 8 -- Pleading requirements
Section 9 -- Changed or new to "fault" grounds for divorce [needed in a few states]
Section 10 -- Marriage Counseling or Education required before divorce


NOTE ON ENACTING PIECES OF THE ACT SEPARATELY

For a divorce reform bill without choice or counseling provisions, use Sections 2, 3 and 5, and consider using Sections 6 and 7.

For a choice bill without counseling requirements, remove the references to "premarital education or marriage education" in Subsections 1(a) and (b), and remove Subsection 4(b).

For a counseling or marriage education bill, use Section 4.

Even if you are not imposing any counseling requirements, we recommend enacting Subsections 4 (a), (c) and (d), which increase access to, and public awareness of, marriage education, at little or no cost to the state.

For a bill that merely honors and enforces covenant marriages from other states, use Subsection 7(b) and remove references to "this Act" and "Choice Form".


Section 1 -- Choice of Divorce Rules by Couple at Time of Marriage or Later

a. Any couple who have received premarital education or marriage education together from any of the providers described in Section 4 may choose not to have Section 2 apply to them by completing a "Choice Form" and filing it with the Clerk's office of the Circuit Court for the county in which they apply for a marriage license, or if they are already married, the county which they reside.

b. A couple to whom Section 2 does not apply (for example, most people married outside this state or before this Act took effect) may choose to have Section 2 apply to them by completing a "Choice Form" and filing it with the Clerk's office of the Circuit Court for the county in which they reside, once they have received marriage education together from any of the providers described in Section 4 .

c. Choice Forms shall be provided by the Clerks of the Circuit Courts. The body of the forms shall read:

"We hereby choose that a no-fault divorce

____ will
____ will not

be available to us if and when (i) we have any child under age 19 who has not yet left high school, and (ii) one of us wants a divorce but the other of us does not consent."

d. Such forms are not valid unless signed by both spouses, with each signature acknowledged before, or witnessed by, a Notary Public, Clerk or Deputy Clerk. The forms shall be kept in the court's permanent records.

e. Other forms of agreement; forms and agreements from other states and countries: A written agreement executed before or during marriage, in any state or country, may enforceably specify whether, and under what conditions, 'no-fault' grounds may be grounds for divorce when the parties have children and do not both consent to a divorce. Such an agreement may also enforceably specify a waiting period for divorce when the parties do not both consent to a divorce. For these purposes, only, any form provided by a court for the purpose of making such a choice, in any state or country, if signed by both spouses and retained by the court or other governmental agency or religious institution in its records, shall be presumed to be a valid agreement. "No-fault" grounds include such grounds as living apart; legal, judicial or de facto separation; irretrievable breakdown; incompatibility or irreconcilable differences, as are variously provided in the laws of various states and countries.
COMMENTARY on Section 1 -- Choice of Divorce Rules by Couple at Time of Marriage or Later

Section 1(e)-- This language should be added to the state's premarital agreement laws as well as to its divorce laws. It means that the state passing this bill will also enforce covenant marriages and classic marriages from other states and countries, and will also honor prenups which restrict the ability to get a unilateral no-fault divorce. You want broad generic language when describing contracts or court forms the couple may have signed, because many couples will move between states with different procedures. (Section 7 also addresses this issue.) The part about "religious institutions" is added because in some countries, marriages are only registered with them, not with the government. Also, there are religions in the U.S., such as certain forms of Judaism, in which marriage contracts are common.
Section 2 -- No no-fault divorce until children grown if spouse objects.

a. Unless at the time of filing the parties had lived separate and apart for one year after all their children (as defined in Subsection a) had completed or left high school or reached the age of 19, a divorce [or legal separation] upon the grounds set out in [existing statute section on no-fault grounds of divorce such as separation, living apart, incompatibility, irreconcilable differences, irreparable, irretrievable or irremediable breakdown] shall not be granted if:

(i) there are living children born of the parties before the parties' separation, born of either party and adopted by the other, or adopted by both parties; and

(ii) the court or its trier of fact is informed before the divorce is granted that, during a period beginning shortly before the separation or the Plaintiff's filing, whichever is earlier, and ending sixty days after initial service of the pleading requesting the divorce, the Defendant has filed or transmitted to the court or trier of fact, or to any other court where Plaintiff filed for divorce within the period, a written objection to the granting of a divorce.

b. The clerks of the ______ Courts shall provide forms for the objection described in Subsection (a)(ii), but the forms' use shall not be mandatory or exclusive.

c. If the objection is received shortly before a hearing on grounds or if it does not indicate that it was sent to the Plaintiff, then the court or the trier of fact shall immediately inform the Plaintiff and shall cancel the hearing if the Plaintiff requests cancellation.

d. The objection shall have no effect if the Defendant has consented, agreed or filed for divorce as described in Subsection 3(a), or if the Defendant does so after objecting, or withdraws the objection.

COMMENTARY on Section 2 -- No no-fault divorce until children grown if spouse objects.

Section 2 is based on Virginia legislator Roger McClure's divorce reform bill, HB 2624, in which nothing changes from the way divorce works now unless the Defendant (the spouse who is not seeking a divorce) asserts a right to object. Other reform proposals which aim at the same goal do this by requiring the Plaintiff (the one who wants a divorce) to get Defendant's consent before filing for a no-fault divorce, which makes it harder for the Plaintiff to take the initiative. Those proposals are good in that they put the Defendant in a stronger position emotionally and rhetorically, because she is someone refusing to do someone else a favor to the detriment of her family, rather than assuming the role of someone who is objecting and standing upon her "rights"-a position which is disapproved of and looked down upon in our culture. The only reason I do not prefer this "consent" model instead of the "objection" model is that "consent" models do not provide for cases where the Defendant has disappeared, or is totally passive and will not say yes or no. If someone writes consent-based legislation that deals with this, I would like to look at this issue again.

I have changed Del. McClure's wording in four ways:

First, I changed the separation time requirement so that for a divorce based on separation, the plaintiff's one year of separation before filing would only start after the children were all out of high school. The original version of the bill, and all other versions of this reform that I have seen, gives an incentive for one parent to move out on the child's 17th birthday, in order to have one year's separation when the child turns 18. (I would appreciate tips on improving the sentence structure of Section 2 . I added an "unless" clause to Del. McClure's existing sentence, which contains an "if." The result is not ambiguous, but it may be hard to follow.)

Second, Section 2(a) means that the elimination of non-consensual no-fault divorce only applies to cases where there were children born before the separation. Although children need to be raised by both their natural parents regardless of whether the parents separated before birth or after, this wording avoids giving any added incentive to abort them. If your own analysis of this incentive indicates that it would be so minimal that it is outweighed by the benefit to the children from protecting the marriage, then you may want to leave out the phrase "before the parties' separation".

Third, I gave the spouse 60 days to object instead of 21, because divorce defendants often are unsure at first about what is happening, what to do, or even what they can do or want to do.

Fourth, I employed defensive drafting, anticipating perverse, pedantic, obstructionist interpretations by some courts. (See esp.Sec. 2(d) and Sec. 3(b).) Any divorce lawyer in my state would advise doing this. For example, if there is no language dealing with how an objection can be withdrawn, there will probably be rulings that once objection is made, a divorce is impossible even if the objection is withdrawn. Many trial judges and their law clerks will take this position even if they are pro-divorce, because they are opposed to divorce cases, opposed to divorce litigants, and especially opposed to people who file things and then withdraw them (their theory being that if something was withdrawn it must have been frivolous in the first place, and that filings should be discouraged in the interest of docket management). Also, judges have an ingrained tradition of obstructing fault-based divorce. They used to do this because before no-fault, divorce was supposed to be discouraged, especially if the judge suspected that the parties were cooperating to get a divorce and not conducting a true adversary proceeding. When no-fault was introduced, they continued to do this on the grounds that fault-finding was nasty, un-modern and irrelevant, and no-fault divorce was preferable. Many of them surely will continue this tradition even when the present reasons for it have disappeared.
Section 3 -- Divorce based on Mutual Consent; Fault not considered
a. In any case pending and commenced on grounds of separation, cruelty, [include other fault or no-fault grounds used in the state, but not desertion], or adultery, the court shall grant a divorce on grounds of mutual consent, if the court is informed that the Defendant:

(i) filed for a divorce in this state, during a period beginning shortly before the separation or the Plaintiff's filing, whichever is earlier, and ending when the final order concerning the divorce is entered by the court; or

(ii) consents during the period described above in Subsection (a)(i), orally in person in open court, or by transmitting to the court where the case is pending any pleading, form, or signed writing which consents to the divorce; or

(iii) has agreed in a binding written contract, premarital agreement, marital agreement, or separation agreement, to consent to, or not to file objection to, a divorce on "no-fault" grounds , or

(iv) has agreed, in a written agreement or court form that provided a choice of divorce laws and was completed by both spouses at the time of the marriage, that the marriage may legally be dissolved on "no-fault" grounds with no pre-divorce counseling required, and there has been no later written agreement or joint declaration revoking or superseding that agreement or form.

b. The court shall act as described in Subsection (a) regardless of

(i) any Objection filed under Section 2(a)(ii),

(ii) whether the Defendant filed for divorce as described in Subsection 3(a)(ii) in a proper venue, or

(iii) whether the allegations in the original pleadings were true or proved, unless it finds they were made in bad faith; but

(iv) the Court need not and shall not reopen a case, after a final order granting a divorce, to change the grounds of the divorce to consent grounds, except at its discretion upon motion of both parties.

c. The court may nonetheless consider any evidence that it finds to be relevant to other matters before it.

d. The clerks of the Circuit Courts shall provide forms for the consent described in Subsection (a)(ii), but the forms' use shall not be mandatory or exclusive.

e. Waiting Period For Mutual Consent Divorce.

(i) The court may only grant a divorce under this Section at such time as it (or its designated trier of fact) has been satisfied, from the evidence before it, that the parties have lived separate and apart for six months with the intention of at least one party to consider divorce.

(ii) Corroboration by a non-party witness shall be necessary only if the trier of fact, in its discretion, is not satisfied by the other evidence before it.

(iii) Parties shall be considered to have lived separate and apart regardless of

(A) brief interruptions of separation for the purposes of pursuing possible reconciliation,

(B) sharing a home for economic reasons while sleeping in separate rooms, or

(C) any activities required in order to discharge mutual responsibilities to the couple's children, families or community.
COMMENTARY on Section 3 -- Divorce based on Mutual Consent; Fault not considered

Section 3 is a beefed-up version of a current provision of Virginia divorce law. The Virginia provision is up to the judge's discretion and is only available once the parties qualify for a no-fault divorce.

3(a)(i) would not present a venue problem, because the remedy does not depend on whether venue was proper.

3(a) (iii) This Section provides for agreeing to "consent" or to "no objection" because of the varying systems proposed in current reform bills.

3(b) is designed to avoid a problem that arose with the Virginia provision and other typical snags raised by judges and their law clerks.

3(c) leaves unchanged the courts' power, if they have any in this particular state, to impose economic penalties for misbehavior. They presently can do this in Virginia and many other states. But under this provision, courts would be able to do so without going through the unique procedures designed for finding fault grounds for divorce.

3(e) may be omitted. Its function is to keep Section 3 from totally repealing all waiting periods for people who both consent to divorce. But in putting the waiting period back in, I made some improvements to it so that it will no longer have the perverse side effect of discouraging attempts at reconciliation and other responsible behavior.
Section 4 -- Marriage Education and Skills Training
Note: The language of this Section is identical to our MODEL MARRIAGE EDUCATION LEGISLATIVE LANGUAGE, which is separately available along with notes and commentary from http://www.divorcereform.org/mod.html, and which additionally includes optional language on marriage waiting periods, not shown here.

a. Marriage education or skills training required, or referred to, by this Act may be provided by any of the following:

(i) An official representative of a religious institution, or any clergy person authorized to perform marriages, or his or her designee (including mentor couples or other lay volunteers, if working in a clergy-supervised program).

(ii) any U.S. Armed Forces family support center or chaplain's office.

(iii) Marriage education or skills training providers specifically authorized as marriage educators by, or listed in on-line or printed marriage educator directories of, the Coalition for Marriage, Family and Couples Education (http://www.smartmarriages.com), The United States Department of Agriculture Cooperative Extension Service, PREP, Inc.; PAIRS, PREPARE, FOCCUS, RELATE, IMAGO Relationship Education, the National Institute for Relationship Enhancement, the Couple Communication® programs, The National Council on Family Relations, The Couples Health Program SM, Marriage Savers, Inc., the American Association of Pastoral Counselors, the American Association of Christian Counselors, or any Community Marriage Policy TM or Community Marriage Covenant.

(iv) Marriage education or skills training providers listed in any other on-line or printed directories whose use has been authorized by the Clerk of the Supreme Court.

(v) Marriage education or skills training providers listed in Directories which shall be maintained by the local court clerk's office or other office where marriage licenses are obtained. Each such Directory shall be a binder in which the clerk may place the names of local providers and materials sent by them; copies or internet web site addresses of other lists or directories authorized by this Act; printouts of local sections of internet on-line directories; and other materials or lists that the clerk deems suitable.

b. Proof of completion of marriage education or skills training, or marriage counseling, for all purposes for which it may be required under this Act (and not only in this section), shall be submitted as follows:

(i) Proof of completion of training should be signed by a provider, on the stationery, or other form or certificate, that is used by the provider, program or sponsoring institution, but it need not be notarized.

(ii) If the provider is not yet in the Circuit Court's Directory and appears to the Clerk or Deputy Clerk to be qualified as a marriage educator under the terms of this Section, the Clerk or deputy may add the provider or the program to the Circuit Court's directory (regardless of whether the provider or program is already in another on-line or printed directory or is clergy).

c. (i) Whenever anyone contacts a Circuit Court Clerk or Deputy Clerk seeking a marriage license or celebrant, or anything else preliminary to marriage, or to file for divorce, legal separation, child custody or support, the Clerk or deputy shall ask if the couple have gotten or are getting marriage skills training, and from whom.

(ii) If they have not, or if the answer is vague, the clerk or deputy shall inform such persons that training may be available from clergy, or from programs offered by religious institutions, and that both non-religious and religious marriage educators are available from the providers and directories that are authorized by Subsection (a) of this Section (above).

(iii) The clerk shall do this with all persons described in Paragraph (c)(i), regardless of whether they are legally required to obtain any such training.

d. Whenever marriage skills training is available in a geographic area, information on what it is, where to get it, and why, shall be made available to the public at all:

(i) places where marriage licenses are applied for

(ii) offices of civil marriage celebrants

(iii) governmental offices that offer family services or counseling, including any that provide services to single or married parents or to newly-released former prison inmates

(iv) court clerk's offices that deal with domestic relations or juvenile delinquency cases.

(v) providers of court-referred or government-referred divorce education, parenting education, or custody education programs.

e. If the marriage education is provided as marriage preparation, the couple shall undergo the training together. If it is required by state law or court procedures as a prerequisite to divorce, the individual parties may undergo it separately and need not both choose the same program or provider.
COMMENTARY on Section 4 -- Pre-Marital Education

Instead of requiring pre-marital counseling for covenant marriages, this proposal strongly encourages marriage education for all marriages. It seeks to maximize the availability of marriage education and skills training, and to minimize bureaucratic barriers between marriage education providers and couples who seek marriage education.

Even couples who are without the guidance of a minister should be able to find competent pre-marital training. One of the best places to go to find such training is the nationwide directory of marriage educators maintained by the Coalition for Marriage, Family, and Couples Education at http://www.smartmarriages.com. For reasons of quality, practicality and convenience, people should be allowed to use this Directory, which is available free on the world wide web, and others like it.

Licensing, Regulation and Accreditation: Premarital education is not limited to therapy or "marriage counseling". Many of the most effective providers of it are not licensed or degreed family therapists, counselors or social workers. Their training and accreditation is provided by the dozens of marriage education programs that have been developed in recent decades and continue to evolve and grow. Many providers are volunteers or do it as a second, part-time job. Consolidated state licensing and regulation is unnecessary and would only stifle the availability and improvement of this vital public service. In fact, if governments, or semi-governmental professional self-regulatory bodies, gain any role in regulating counseling content or techniques, the resulting product will end up reflecting narrow or politicized values that are at odds with the values and practical needs of most couples.

If marriage preparation legislation excludes or regulates the clergy, it is not worth doing. Excluding marriage educators or lay religious trainers is also a big mistake.

Length and Content: Clergy and other accredited marriage educators are perfectly competent to determine the length and content of their programs. The state need not and should not interfere.

Definitions: Terms such as "clerk", "Circuit Court" and "Supreme Court" are used simply because those are the terms used where I practice, in Virginia. Terms such as "training," "premarital training" and "providers", when used alone, are intended to be fully interchangeable with the longer phrases used earlier in the Section, "Marriage education or skills training" and "Marriage education or skills training providers". The shorter versions are used in parts of the Act that tell Clerks and deputies to tell couples certain things, so as to make such communication between court employees and the public as brief, intelligible and informal as possible.

Section 4 (a)(i): Each state has constitutionally-tested language it uses to describe clergy or marriage celebrants in its statutes. You should use the language already used in your state's code, and then add " or his or her designee". Here's why to add that last bit: Many churches provide a mixture of clergy and lay counseling. This includes churches that are part of the Community Marriage Policies promoted by Marriage Savers, Inc.

Section 4 (a) (ii): Family support centers go by different formal names within the various branches of the military; thus the term is used generically here and the actual office providing the counseling may have a different name.

Section 4 (a) (iii): All directories listed here are approved by, and accessible through, http://www.smartmarriages.com.

Section 4 (e): Section 4 is designed to work with any legislation that makes marriage education or counseling mandatory, not just as part of Classic Marriage; as well as being able to stand on its own as legislation that encourages and publicizes marriage education. Subsections 1(a) and (b) require couples to undergo training "together" before signing a choice form. The requirement that the couple to undergo marriage preparation training together means that for most couples, having taken high school family life, relationships or marriage skills curricula (such as PARTNERS, CONNECTIONS, PEERS, or Building Relationships) would not be sufficient, even if the programs are listed in the approved directories. These programs are very valuable but they are not the same thing as marriage preparation.

But for already-married couples who may be required to undergo marriage education or counseling before a divorce will be granted, there are reasons not to require couples to receive it together, though it is usually better if they do. For one thing, in cases where there is alleged domestic violence, and where there may be restraining orders barring the spouses from each other's presence, court systems that currently provide divorce education and custody education have found it expedient to allow the parties to attend separate sessions. Second, this means the parties do not have to agree on which provider to use before they can proceed; so neither spouse can hold up the process by refusing to attend.
Section 5 -- Evidence of fault or breakdown; Procedures; Children and publicity.

a. Except for evidence of living apart, (i) no minor child of either of the parties to a divorce suit may give evidence of grounds for divorce; (ii) nor may any statement of such a child, by hearsay or otherwise, be used as evidence of grounds for divorce.

b. Except for evidence of living apart, or of imprisonment or conviction of a crime, evidence of grounds of divorce shall not be heard ore tenus in a court of record or in a hearing open to the public. Instead, it shall be heard [here specify procedures already available in the state, such as referral to a commissioner or master, automatic remand or transfer to juvenile or family court, or having all divorces begin in juvenile court for a hearing on grounds].

c. The defense of recrimination is abolished. The court may nonetheless consider any evidence that it finds to be relevant to matters before it.

d. In suits for divorce based on grounds other than living apart, separation or desertion, the defenses of condonation and of cohabitation after knowledge are abolished. The court may nonetheless consider any evidence that it finds to be relevant to matters before it.

e. The role of corroboration, the requirements for corroboration, and the sufficiency, credibility, weight, role and use of admissions by the parties, shall be the same in divorce suits as in other suits in equity or at law. All requirements to the contrary are abolished.

f. This Section applies to suits for divorce from bonds of matrimony, [suits for judicial or legal separation,] and suits for divorce from bed and board.
COMMENTARY on Section 5 -- Evidence of fault or breakdown; Procedures; Children and publicity

Section 5 (b): "evidence of living apart" is intended to apply not only in states where living apart is a ground of divorce, but also in states where it is not a ground itself, but is considered to be irrefutable evidence of irretrievable breakdown, irreconcilable differences etc.

A possible variation on this subsection would be to still allow an in-court hearing, rather than a commissioner, if both parties want one. This is because, in some states or localities, a commissioner's hearing may be more expensive than a court hearing.
Section 6 ­p;- Effective Date and Retroactivity


a. This act takes effect on the _____ day of ___________________, 20______.

b. Section 2 applies to all couples married after this Act takes effect, except as provided in Section 7.

c. Section 2 shall not apply to couples married before this Act takes effect, except (i) as provided in Section 7, or (ii) for such couples who choose to have Section 2 apply to them by completing a "Choice Form", or who have made a similar choice or agreement by one of the means described in Section 1(e).

d. Section 3 shall apply to all cases pending when this Act takes effect, or filed thereafter.

e. All other Sections of this Act shall apply to all cases filed after this Act takes effect.
Section 7 -- Couples married outside this state
a. Section 2 does not apply to couples who were neither married in this state nor resident and domiciled here at the time of marriage, except (i) if they have completed a Choice Form under Section 1(a) (or a similar law of another state) indicating in substance that Section 2 should apply, or (ii) pursuant to another out-of-state agreement or form described in Section 1(e), or (iii) upon proof that the law prevailing at the time and place of their marriage did not provide for unilateral no-fault divorce as defined in Section 1(e); or (iv) as provided below in Subsection 7(b).

b. If a couple was married in another state or country whose law at the time allowed a couple to make a choice of divorce rules at the time of the marriage or later during the marriage (including states with statutes similar to this Act or with Covenant Marriage legislation), or if a couple made such a choice in another state at some time during the marriage pursuant to such legislation, and if such couple has not completed a Choice Form in this state, then the divorce grounds and other substantive requirements chosen by the couple at the time of the marriage (or later), as provided by the law of the state where they did so, shall apply instead of the divorce grounds and other substantive requirements provided by this state's law.

c. If the place of last marital cohabitation was a state, district, territory, province or country that adjoins this state, and the Defendant still remains in that place, then this state shall not exercise any jurisdiction that it has to grant a divorce unless the defendant consents (as described in Section 3) to a divorce, and to such divorce being heard in this state's courts.
Section 8 -- Pleading requirements
In any divorce case commenced after the effective date of this Act, if there is a Choice Form, agreement, or other writing, as described in this Act, or an out-of-state marriage of the kind described in Section 7, which may affect whether Section 2 applies to the marriage, then any Bill of Complaint for Divorce, and any Objection or Answer to the Bill of Complaint, must so state. Failure to do so shall not affect the validity or timeliness of any such pleading, and later written or oral amendment or stipulation shall be allowed up to the time of the hearing on grounds of divorce.
Section 9 -- Changed or new "fault" grounds for divorce [needed in a few states]

[NO MODEL LANGUAGE RECOMMENDED AT THIS POINT, so all of this Section is commentary].
Most states still have several "fault" grounds for divorce, and most reformers do not propose to change them. But:

a. In the 15 or so states where all fault grounds have been abolished, some such grounds will have to be reinstated.

b. A few states have certain fault grounds that are a joke, which judges routinely use as a substitute for no-fault, sometimes without allowing any evidence to be presented by the defense. It is impossible to tell which ones these are from looking at a state's statutes -- you would have to consult divorce lawyers in each particular state about this. These need to be pared back, reformed or removed entirely.

c. Also, in all states, once restrictions on no-fault divorce are put in place, perhaps some additional fault grounds, reflecting social change for the worse in recent decades, should eventually be enacted, usually by borrowing from other states or countries.

I have compiled some Fault Grounds from Other States and Countries. My associate has compiled all Grounds for Divorce in the various states of the U.S.
Section 10 -- Marriage Counseling or Education required before divorce
Any marriage counseling or education required before divorce may be provided by any of the providers listed in Section 4(a), or by licensed behavioral health professionals, psychologists, social workers, marriage and family therapists, psychiatrists, pastoral counselors, certified family life educators, or professional counselors, but not by a therapist who is treating or has treated one of the spouses separately. The individual parties may undergo it separately and need not both choose the same program or provider.
COMMENTARY on Section 10 -- Marriage Counseling or Education required before divorce
Having heard marital therapists such as Bill Doherty and Frank Pittman of the Smart Marriages coalition describe what "marriage counseling" provided by therapists and even by the clergy often consists of, I would be hesitant to include any requirements for it. If such language is included, it might even be best to restrict it to clergy and to marriage education providers and marital therapists who are endorsed by the Smart Marriages directory and other directories mentioned along with it in Section 4. But excluding other family therapists is probably politically impossible and perhaps not fair, and if that is the case in your state, it is better not to have any pre-divorce counseling requirements at all at this point.

But if you are nonetheless going to include requirements or incentives for pre-divorce counseling, the language in Subsection 4(a) (plus Section 10 above if therapists are to be included) is what we recommend for defining the providers.

The counselor should not be a therapist who is treating or has treated one of the spouses separately. That creates very unhealthy, confused situations which breed mistrust, and often facilitates divorce rather than reconciliation or a better marriage.

If there are going to be marriage counseling requirements, it would be good to include language saying that marriage counseling must be directed towards saving the marriage - but trying to come up with acceptable wording, definitions and exceptions would be a very delicate and contentious process and may not be possible.

This Act has been refined from earlier drafts, over the years, in response to the comments of many different people in various fields. This is not the only specific legislation recommended by Americans for Divorce Reform, Inc., which encourages and publicizes a variety of social, cultural and legislative efforts to reduce divorce. We would like to receive your comments and alternative proposals.

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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.