The Crossroads of Divorce: A Nationwide Survey of Statutes Affecting Reconciliation Efforts

Abstract

With divorce being so common, the merits and effectiveness of reconciliation are of concern. Reconciliation efforts appear, for the most part, ineffective and unsought. This paper focuses on reviewing reconciliation-focused statutes surrounding the divorce process to discover what helps are available to struggling couples. Recommendations are given which would bring reconciliation resources and options to the forefront sooner in the divorce process in order to increase their effectiveness and people’s receptivity of them. It is hoped that these changes can help preserve and strengthen marriages. Future research needed in the area is suggested.

I. Introduction

Have you ever become lost while driving in unfamiliar territory? If so, you know the feelings of uncertainty that come each time you come to an intersection and must choose a path. Uncertainty haunts you even as you continue down a road you thought was the correct one, but as you continue down it, now you are not so sure. In situations like these, road signs and maps are helpful.

For couples undergoing marital difficulty, the situation can be similar. The territory is unfamiliar. Feelings of uncertainty are present as you try to choose the correct path but are not sure if it will really lead you to your desired destination. You are at a crossroads. Sometimes couples get on the road to divorce unwittingly and aren’t sure if they want to be on it. How do they get back on the road to marital harmony? Are there any roadmaps or signs? The road to divorce seems like the correct road because it is busy and so many people are traveling on it. However, if they don’t stop soon, before they know it (and it does happen quickly) some find themselves reading a sign that says, “Welcome to Divorce.”

The purpose of this paper is to focus on those couples who find themselves at the crossroads of divorce and look at what statutory road signs are in place to help them find the road to marital harmony if divorce is not their desired destination. Too often, the needed directions for reconciliation are not given until a couple has decided to divorce and has come so far along the road that turning back doesn’t seem workable. Reconciliation resources and services need to enter the picture earlier in order to be effective and utilized. After a brief note regarding the background of divorce and reconciliation, this paper looks at the statutory “road signs” on the road to divorce and when these road signs appear. The paper concludes by looking at the potential merits of moving these road signs earlier and the plethora of research which is still needed in the future.

II. Background of Divorce and Reconciliation

  1. A. Effects of Divorce

In the last sixty years especially, divorce has transformed from the uncommon to the commonplace.[1] People talk of “starter marriages” as if it is normal and expected that a first spouse is to be discarded and upgraded for a better and more appropriate replacement just like a starter home.[2] The commonality of divorce in our society is startling and costly. Not only are homes and families more frequently upset by divorce, but the courts have been flooded with litigation stemming from divorce and the harm left in its wake.[3] The devastating impact on children and the increase on the demands of court resources, among other things, have led legislators in all states to work to come up with solutions to these troubling family issues.

Always at the forefront of society’s thought is the protection and nurturing of children. As a result, we focus on the harm to children, especially as we see studies that show how children suffer the ill effects of divorce, not just a few years after their parents’ divorce, but decades later.[4] Our current approach vigorously attempts, and rightly so, to shield children from the harsh effects of divorce. However, in these vigorous attempts, often the well-being of the parents, forgotten to be intricately connected to their children, has been eclipsed.

  1. B. Background of Reconciliation

With the family being the most basic unit of our society, marriage has historically been highly valued. With the rise of divorce,[5] states have come up with a plethora of tools to attempt to help families during these crucial and often shattering moments. While there are plenty of remnants of state laws which focus upon reconciliation efforts for divorcing couples and parents, these are quickly eroding away as no-fault divorce principles have taken hold on our society. For example, waiting periods required before divorce finalization, originally established primarily to allow time for tempers to cool and ensure marriage was not dissolved without careful thought, [6] are waived with increasing frequency. Some statutes seem to only remain as the shell of a policy to preserve marriage. Why have we moved away from these reconciliation efforts? Are we truly so backed into the corner of burgeoning litigation and self-serving attitudes that the solution we think best is to make divorce easier to obtain? What reconciliation-focused laws remain in use? Of those that have lost effectiveness, are there efforts underway to resurrect the principle of reconciliation and set it up as the ideal solution or, at the very least, a first-step requirement before turning to divorce? This paper shares the results of a nationwide survey of state statutes in order to answer these important questions.

Addressing divorce and reconciliation issues would be incomplete and unfair without a note about domestic violence and other abuse. There are those who have, in the words of Dallin H. Oaks, a former Utah Supreme Court Justice, “firsthand knowledge of circumstances worse than divorce.”[7] He continued, “When marriage is dead and beyond hope of resuscitation, it is needful to have a means to end it.”[8] This paper does not seek to ignore the awful circumstances in which victims find themselves. In some cases, divorce is not only a prudent option, but necessary.

There are, nevertheless, a great number of couples seriously contemplating divorce whose marriages can be saved. Of those couples, this paper focuses narrowly on those who have decided to seek divorce through the court system and what, if any, resources, policies and/or mandates states have in order to help a couple seek reconciliation before granting them a divorce. It is hoped that as a result of this paper, legislators, researchers, and the community in general can shift their thinking back towards the merits and ideals of reconciliation and work to establish or resurrect those mechanisms which effectively promote reconciliation.

III. Research and Findings of

Nationwide Reconciliation Efforts

A. Definitions

Because states employ such a wide range of methods and terminology in their legislation, terms relating to reconciliation efforts are defined below as they will be used in this paper.

Reconciliation is used to refer to the general process and attitude a couple has when seeking to repair a damaged marital relationship.

Divorce education means courses designed and/or offered by a state to educate parties as to the effects of divorce and merits of reconciliation. The focus is more on the parents.

Parent education means courses designed and/or offered by a state to educate parties with minor children specifically to the effects of divorce upon their children and how parents can and should work together to minimize harmful outcomes.

Pre-filing requirements refers to any state requirements that must be fulfilled before filing for a divorce.

Conciliation refers to an action some states permit to be filed by one party that delays divorce proceedings in order to allow an opportunity for parties to seek reconciliation.

Residency requirements refer to the time necessary for a party or a couple to be a resident of a state before that state will allow a divorce action to be filed.

A separation period means the time period established by a state for which a couple must be separated before they can file for divorce.

A waiting period means the time period established by a state for which a couple must wait and remain separated before a divorce can be finalized.

Counseling requirements refers to that counseling which is necessary to fulfill state statute or a court’s mandate or request to engage in marital counseling for the purposes of reconciliation.

No-fault divorce or no-fault divorce equivalent means that a state will grant a divorce without regard to why a marriage is broken or who bears fault. When a state does not use the term no-fault divorce, the no-fault divorce equivalents are commonly known as irretrievable breakdown, irreconcilable differences or incompatibility. States typically find sufficient marital breakdown when both parties agree to no reasonable probability of reconciliation and the couple has been separated for the statutorily-required length of time. Some states require only the proper separation period and just one party to deny the possibility of reconciliation.

C. Method

The research conducted thus far (that which is reflected in this paper) has focused only on review of state statutes. Each state’s table of contents was perused to locate the domestic relations chapter or section. Portions of the domestic relations section relative to dissolution or divorce were then located and reviewed for the concepts defined above. If a concept could not be found within the domestic relations section, a general search of the state’s code was made to locate or piece together the missing concept. Searches were conducted using alternative terms to see if a state simply identified the concept with different terminology. For example, while many states identified their parent education program with the words “parent education,” Maryland identified theirs by using the words “educational seminar.”[9] In some states, a concept was not found under any of the search terms or their discovered equivalents. If a concept was not found in a state, it either does not exist as part of the current statutes or is identified by an undiscovered term not commonly used by other states.

D. Findings and Analysis[10]

Research shows that most states do have reconciliation as a goal. In fact, in many states, even those with no-fault divorce, courts are required to find that there is no reasonable probability of reconciliation before they will proceed with a divorce. On its face, the statutes indicate a preference for marriage preservation, yet divorces and the number of unmarried adults have increased over the last half-century.[11] The facts could lead one to conclude that either these reconciliation procedures are ineffective, they are underutilized, or most marital breakdowns today are beyond saving.[12] Since marriages did not fail with the same frequency heretofore, it is irrational, and deplorable to some, to see this last option as a reasonable explanation for the increase in divorce. Left then with ineffective or underutilized to describe current reconciliation efforts, our focus should be on making our efforts effective and utilized. How do we do this? In order to find out, we must be acquainted with the requirements of our laws surrounding divorce and what they communicate to people, both explicitly and implicitly, about reconciliation. We will review these laws by looking at the statutes regarding divorce and/or parent education programs, timing requirements for these programs, waiting and/or separation periods, residency requirements, no-fault divorce, and, finally, reconciliation, conciliation and counseling.

1.  Divorce education and parent education.

The majority of U.S. states do not separate divorce education from parent education. Most have one established program which is primarily a parent education course but which also includes elements of divorce education (general effects of divorce, reconciliation resources, etc.). In accordance with findings in the article A Nationwide Survey of Mandatory Parent Education,[13] research of statutes revealed that forty-six states throughout the United States have parent education programs of various sizes and forms. This article gives a wonderful explanation of the status of current parent education programs across the nation and should be referenced for more specific information about the characteristics of each state’s program. The following points regarding education programs should be noted as they are germane to reconciliation efforts:

  • Although parent education exists in most states, it is still largely discretionary. Even in states that mandate the education, courts can waive participation in some circumstances.
  • Education programs are centered on minimizing damage to children with little or no discussion about the possibility of reconciliation.
  • Education programs are still experimental in regards to effects on reconciliation. Research lauds the positive effect of parent education programs in reducing litigation and harm to children,[14] but has not paid nearly as much attention to how divorce education about reconciliation is received by parties, whether or not it positively changes their thoughts and behavior, and, if so, by how much.
  • Parent or divorce education program attendance occurs after parties have paid to file for divorce and are fairly set in their course[15] and reconciliation may or may not be mentioned. Parties are not likely to be thinking as much on the possibility of reconciliation when information about reconciliation comes, if at all, after their decision to divorce has already been made.

2. Timing of parent and/or divorce education courses

States do realize the importance of education and understand that the sooner people receive education, the sooner they can put it into practice. In divorces, the state benefits from earlier education in the form of decreased litigation and more amicable parties.[16] Parties enjoy a smoother litigation process and better communication even after the divorce decree.[17] For these reasons, when divorce education is mandated, most state statutes require that people take the course quickly. Of the seventeen states that do require divorce education, thirteen specify a required time frame within which the parties must take the course. Out of those thirteen, ten tie the completion requirement to within so many days of filing,[18] indicating that the state wants the parties to receive the education as soon as possible, while still allowing them a reasonable time frame within which to take it. The large majority of parties who take a state-mandated course have a positive experience and feel the information is helpful.[19] Both the state and parties benefit from earlier parent and/or divorce education.

For many parties, the parent or divorce education is the first time that they encounter information about reconciliation and related community resources, if at all. Perhaps an attorney or friend has asked them about the possibility of reconciliation, but chances are that these conversations have been limited. As was mentioned before, by the time parties take the parent or divorce education courses, they are usually fairly committed to the decision of divorce and the course directs their attention past reconciliation and towards minimizing ill effects to their children.

With these realities in mind, education on reconciliation options and resources needs to come earlier in the divorce process in order to be effective and utilized. How much earlier? How can we identify a couple in need before they file for divorce? These questions are more difficult to answer. One possibility would be to make divorce and/or parent education a pre-filing requirement. Currently, no states have pre-filing divorce requirements which aim to assist in reconciliation. Only Minnesota has attempted such an endeavor in the form of a statute requiring pre-filing divorce education.[20] Minnesota’s initiative is based on research conducted within Hennepin County among divorcing couples. The research revealed that in four out of ten couples, one spouse would be willing to pursue reconciliation and that in one out of ten couples, both spouses would be willing to pursue reconciliation.[21] Moving the requirement from soon after filing to pre-filing would not be too startling a change and would be a significant step towards not just paying lip service to the ideal of reconciliation but offering education during the crucial decision time before parties have committed to legal action.

3. Waiting and/or separation periods

Waiting periods and required separation periods vary greatly, but for those states who employ them, their purpose is the same. Waiting periods and separation periods are a way of ensuring that parties have time to cool off and not make such an important decision merely on a whim. If courts were presented with evidence that a couple had been living apart for over a year (a typical separation period requirement) before a divorce action commenced and that they still had not changed their mind 60 days after the filing date (waiting period), then the court could be fairly sure that (a) the decision was not frivolous, and (b) reconciliation was not probable for this couple. Indeed, some comments on the purposes of these statutes reflect that they exist primarily to prevent rash decisions and to allow sufficient time for possible reconciliation.[22] The shortest waiting periods in the nation are 20 days and the longest are two years. Almost half of the states require a waiting period of at least sixty days. Waiting and separation periods clearly communicate a policy preference for preserving marriages.

4. Residency requirements

Although residency requirements are bound to the passage of time, unlike waiting and separation periods, their primary purpose is to discourage advertising their state as a kind of divorce mill. As has been stated previously, divorce can be expensive and time consuming. If a person is traveling to a state solely for the purposes of obtaining a divorce, that state has motivation to establish requirements ensuring that its court resources are devoted to its own citizenry. Residency requirements in the United States range from just six weeks to one year. As a general rule, it appears that shorter residency requirements are associated with western states that are less visited. Longer requirements seem associated with older states on the East coast. Residency requirements do not communicate much about a state’s reconciliation policies. Perhaps, though, one could say that residency requirements in a way provide a second type of waiting period which reflects a preference for permanence over transitory-type action. Forcing a plaintiff to wait before filing, encourages careful thought over fleeting action.

5. No-fault divorce

By far, the vast majority of states allow no-fault divorce or, if it is not termed no-fault divorce, a no-fault divorce equivalent. The trend towards no-fault divorce indicates a desire to avoid wasting court resources and to simplify the complex divorce process. The result of easier-to-obtain divorces, though, has also assisted the burgeoning of divorce cases. Now that so many people are divorced, the courts are more filled than ever with civil cases that stem from divorce proceedings (custody, visitation, etc.). The merits and faults of no-fault divorce laws are the topic of another paper. The point for this paper is that the recent no-fault divorce trend, whether intended or unintended, has pulled against the policy for reconciliation and diminished its effectiveness. The question becomes whether the no-fault divorce trend should only be read as an attempt to reduce court waste and simplify the hassle of fault proceedings, or if it should also be interpreted as a general attitude shift away from the desirability of reconciliation. Is society saying that it values judicial economy at the expense of reconciliation? Possibly. But given the fact that other reconciliation-oriented statutes and procedures have remained unaltered, this is doubtful.

6. Reconciliation, conciliation, and counseling

Statutes are abundant that reflect reconciliation as an important consideration before granting a divorce. These statutes take different forms. From a nationwide review of state statutes, three major types of reconciliation approaches were found. First, some states offer conciliation, an action which allows one party to petition the court for time to seek reconciliation. Second, other states require a couple to undergo marital counseling before divorce finalization. Third, some states allow a judge to order a couple to attempt reconciliation before a divorce proceeding continues. In at least thirteen states, the court has the power to require reconciliation efforts if just one of the parties requests the opportunity.

States vary in whether or not the divorce proceedings are stayed or continued until after the appointed reconciliation period has expired. One state stays the proceedings and then will automatically drop the case if after 90 days neither party moves for dissolution.[23] States also vary in how many reconciliation methods are employed. Some use only conciliation actions. Others give judges wide discretion in what reconciliation efforts may be ordered. Some only require that a court make parties aware of reconciliation resources. Regardless of how intense or long a state requires reconciliation efforts to be, most states have statutes that communicate the importance of reconciliation efforts and that marriages should be saved whenever possible.

7. Summary of findings and analysis

Evidence of a state policy in favor of reconciliation can be found through statutes regarding divorce and/or parent education programs, timing requirements for these programs, waiting and/or separation periods, and requirements for reconciliation, conciliation or counseling. Research regarding residency requirements largely indicates a neutrality towards reconciliation principles as their aim is to discourage divorce forum shopping. The recent no-fault divorce trend may be seen as favoring simplicity and a decrease in litigation at the expense of reconciliation efforts. However, since states who have adopted some form of no-fault divorce have not altered their reconciliation statutes, this view may be unfounded. Actual practice surrounding how these reconciliation-oriented statutes are treated by courts may reveal an attitude not reflected in the statutory laws. Statutes reveal that courts generally have some discretion to control the extent of the required reconciliation efforts. So, whether or not reconciliation efforts are ineffective or underutilized depends in large measure upon the disposition of courts and judges. Shifting the timing of reconciliation efforts from post-filing to pre-filing requirements may go a long way to help these efforts to be more effective.

V. Directions for Future Research

Future research in the area of reconciliation is largely uncharted and has great potential to help states move in a direction that will make reconciliation policies more utilized and effective.  The most obvious place to focus future research is to find an accurate picture of actual practices in a state. How often do states require couples to attempt reconciliation? When ordered, do couples give more than a perfunctory attempt at reconciliation? How often do couples actually reconcile? Do couples feel they might have reconciled had they been ordered to engage in reconciliation attempts earlier? For example, if marital counseling had occurred pre-filing, do they feel it might have changed the outcome? The most accurate picture of actual practice should be sought by contacting attorneys, judges, and parties in each state to determine their experience as to their state’s policies on reconciliation, how well the state adheres to those policies, and how parties feel their actions may have changed if reconciliation efforts had been undertaken sooner.

The studies conducted in Hennepin County regarding a party’s willingness to undergo reconciliation need to be replicated in other states to check for consistency, statistical significance and general applicability. Participants in parent or domestic education courses could be asked not just whether they would consider reconciliation now (post-filing), but how they might have viewed the possibility of reconciliation had they received the education pre-filing.  Future research in the area of reconciliation is desperately needed to give states and their legislators the information required in order to increase the effectiveness and utilization of their reconciliation methods.

VI. Recommended Action

Besides future research, the most logical action to improve reconciliation efforts is to help couples become aware of reconciliation resources and options sooner. Each remedy courts already offer (or order) can be analyzed to see if it is possible to adjust the timing for earlier intervention. For now, adjustment to the timing of the parent and/or divorce education courses makes the most sense. Education changes people and their actions. Moving the education courses to a pre-filing requirement would cause parties to lose nothing (they have to take the classes eventually anyway). The positive effects already documented regarding these education courses would take effect sooner. The parts of the education which address reconciliation would be received at a time when it is more likely that parties would take action of their own volition, thereby increasing their effectiveness. Couples seriously contemplating divorce should have education about divorce as a first-step requirement instead of a last-ditch effort. Then, perhaps reconciliation efforts would be more genuinely undertaken.

VII. Conclusion

Divorce is an all-too-common occurrence in our society. Despite this fact, marriage remains an important part of our society and something worth preserving. Reconciliation-oriented statutes surrounding the divorce process reflect this truth. Although reconciliation is an ideal, it is not always pursued in the most effective way or at the most effective time. Reconciliation efforts could be greatly improved by helping struggling couples to come into contact with education and resources regarding reconciliation sooner. Parent and/or divorce education courses could be made a pre-filing requirement. For those couples who want to get off the road to divorce, but aren’t quite sure how, a pre-filing divorce education requirement could be just the road sign needed at a time when they are still willing to make a course correction.


[1] J. Herbie Difonzo & Ruth C. Stern, The Winding Road from Form to Function: A Brief History of Contemporary Marriage, 21 J. Am. Acad. Matrim. Law. 1, at pp. 22-23.

[2] Dallin H. Oaks, Divorce, Ensign, May 2007, 70, at 70.

[3] Randall W. Leite & Kathleen Clark, Participants’ Evaluations of Aspects of the Legal Child Cusotdy Process and Preferences for Court Services, 45 Fam. Ct. Rev. 260, 260 (2007) (caseloads in the domestic relations area are the “largest and fastest growing segment of state-court civil caseloads”).

[4] Judith S. Wallerstein & Julia M. Lewis, The Unexpected Legacy of Divorce: Report of a 25-Year Study, Vol. 21, No. 3 Psychoanalytic Psychology 353, 366-67 (2004).

[5] See supra note 1.

[6] See Falconer v. Falconer, 48 N.W.2d 158, 160 (Sup. Ct. of Mich., 1951) (stating that “[t]he six months’ period was clearly designed by the legislature as one for the cooling of tempers and the effecting of reconciliations”).

[7] Oaks, supra note 2, at 71.

[8] Id.

[9] See Md. Code Ann., [Educational Seminar] § 7-103.2 (2010).

[10] All research reported on in Part D of this paper, except otherwise stated, refers to appendices compiled from personal research. These appendices have not been included in this publication for the sake of brevity.

[11] Difonzo & Stern, supra note 1.

[12] Sadly, it is possible that a careless attitude towards marriage in general is responsible for the increase in divorce; people just don’t care anymore. But, if people do not care about marriage anymore, why then would they ever get married in the first place? A different attitude towards marriage may be partially responsible for an increase in divorce, but there are plenty of people who still do get married without the expectation of an eventual divorce. They want their marriage to last. Reconciliation efforts are designed and provided for these people.

[13]Susan L. Pollet and Melissa Lombreglia, A Nationwide Survey of Mandatory Parent Education, 46 Fam. Ct. Rev. 2, 375 (2008).

[14] Id. at 379.

[15] Some states do allow parties to take parent and/or divorce education courses before filing, but having that actually occur is rare if not unheard of. For example, a person may go to the course to support a family member but does not go for the purposes of his/her own relationship.

[16] See Matthew Goodman et al., Parent Psychoeducational Programs and Reducing the Negative Effects of Interparental Conflict Following Divorce, 42 Fam. Ct. Rev. 263, 268-69 (2004).

[17] Id.

[18] Some states tie the completion requirement to the date of service on the defendant or the return of summons, but these dates are all relatively close to the filing date.

[19] Goodman et al., supra note 17.

[20] William J. Doherty, Summary of a Bill to Fund the Minnesota Divorce Reconciliation Project and Require An Online Educational Program Before Divorce Filing, SF 1227, HF 1942, Apr. 16, 2009.

[21] Id.

[22] See supra note 7.

[23] See Ind. Admin. Code [Final hearing; evidence; dissolution decree; continuance; motion for dissolution] § 31-15-2-15 (2010).

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