Divorce Reform (as amended)

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SUMMARY OF DIVORCE REFORM

Current Law:

Under current law if the only ground for divorce is Irreconcilable Differences, then the parties must agree to the divorce.  If the defendant spouse objects, then the court is not to grant a divorce.  If the parties do agree, then they must wait ninety (90) before the court can enter the divorce decree.  To avoid the requirement that the defendant spouse consent to the Irreconcilable Differences divorce, most unhappy married individuals also allege that the defendant spouse:

(i) is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct; and/or
(ii) has offered such indignities to the spouse's person as to render the spouse's position intolerable, and thereby forced the spouse to withdraw;

Unfortunately these grounds have been interpreted so broadly that a party who does not want a divorce is told by virtually all legal counsel that we’ve discussed the issue with that the court will find these grounds satisfied regardless of how inconsequential the offending spouse’s behavior might be to most people. Effectively, a defendant spouse has virtually no right to avoid a divorce.

Accordingly, when minor children are involved, this bill restore the rights of a defendant spouse to defend his or her marriage and protect their children from the risk of negative impacts that can flow from divorce.  It will also slow down the process of divorce where there are minor children.
  
Section by Section Summary of the Bill.

Section 1 of the bill extends the current ninety (90) waiting period for granting a divorce if there are minor children to at least one hundred and eighty (180) days if the parties have unmarried children between the ages of fifteen (15) and eighteen (18) years and at least three hundred and sixty five (365) days if the parties have an unmarried child under the age of fifteen (15) years. 

The circumstances under which this extended waiting period applies are expanded beyond Irreconcilable Difference to include alleged ground that:

1. The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct; and/or
2.  The husband or wife has offered such indignities to the spouse's person as to render the spouse's position intolerable, and thereby forced the spouse to withdraw;

As previously stated, current law does not include these two grounds (current law includes only irreconcilable differences), but they are added here because they have, in practice, become “catch all” grounds to allow practically any offensive conduct to be “grounds” for divorce when the defendant spouse objects to the grounds of irreconcilable differences.  In other words, these two new grounds for a waiting period have become the “way around” the right afforded a spouse to object to divorce when the only “real” grounds are irreconcilable differences.

However, there are two other changes that bear upon the extended waiting periods to these additional “grounds.”  They are intended to provide protection in the event that cohabitation really is unsafe and improper.

First, in any case pending and commenced on the grounds of “inappropriate marital conduct” or “indignities to the person,” the court may grant a divorce without regard for the waiting period if the court, based upon a prior order or other reliable evidence, finds that, with respect to a spouse or a child, the defendant spouse has engaged in physical or sexual abuse or a pattern of emotional abuse manifesting physical symptoms, such that legal separation during the waiting period is not in the best interest of the parties and their child or children.

Second, if the court is not sure that the conduct is such to dispense with the waiting period and in the best interest of the children, Section 2 of the bill expands the availability of a legal separation where issues like custody, alimony, and child support can be dealt with short of divorce. Specifically, the plaintiff spouse is no longer to require proof of the grounds.  It is sufficient to order legal separation if the court finds either that the plaintiff spouse:

1.  will suffer immediate and irreparable injury or
2.  is more likely than not to establish grounds for divorce

Section 3 of the bill makes changes necessary to conform existing law to the changes made by Section 1.

Lastly, Section 4 of the bill would amend the law of evidence to encourage marital counseling after a divorce has been filed.  This provision provides that certain communications made during marital counseling are privileged and confidential and is modeled after the current law making certain communications made during mediation privileged and confidential.

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Divorce Reform Bill:

SECTION 1

Amend TCA 36-4-101 to designate the current provisions of that section as Section (a) and further amend by adding the following new Sections (b), (c) and (d):

(b) No bill for divorce on the ground of irreconcilable differences shall be heard unless it has been on file for sixty (60) days if the parties have no unmarried child under the age of eighteen (18) years.  No bill for divorce on the grounds for divorce are those set forth in (a) (11), (12) or (14) shall be heard unless it has been on file for at least one hundred and eighty (180) days if the parties have unmarried children between the ages of fifteen (15) and eighteen (18) years before being heard and at least three hundred and sixty five (365) days if the parties have an unmarried child under the age of fifteen (15) years; but said period shall not prohibit the granting of a legal separation pursuant to TCA Section 36-4-102.  The aforesaid periods for which bills for divorce must be on file shall commence on the date the original bill was filed and not on the date the bill was amended to include the grounds set forth in (a)(11), (12) or (14).

(c)  In any case pending and commenced on the grounds set forth in (a)(11) or (12), the court may grant a divorce without regard for the waiting periods set forth in (b) if the court, based upon a prior order or other reliable evidence, finds that, with respect to a spouse or a child, the other spouse has engaged in physical or sexual abuse or a pattern of emotional abuse manifesting physical symptoms, such that legal separation is not in the best interest of the parties and their child or children.

SECTION 2

Amend TCA 36-4-102 to delete the existing Section (b) and substitute the following new Section (b) in place thereof:
(b)  If the other party specifically objects to legal separation, the court may, after a hearing, grant an order of legal separation, notwithstanding such objections, if the court determines plaintiff will suffer immediate and irreparable injury or the plaintiff is more likely than not to establish one or more of the grounds set forth in § 36-4-101(a). The court also has the power to grant an absolute divorce to either party where there has been an order of legal separation for more than two (2) years upon a petition being filed by either party that sets forth the original order for legal separation and that the parties have not become reconciled. The court granting the divorce shall make a final and complete adjudication of the support and property rights of the parties. However, nothing in this subsection (b) shall preclude the court from granting an absolute divorce before the two-year period has expired.
SECTION 3

Amend 36-4-103 to delete Section (c)(1) and redesignate existing Section (c)(2) as Section (c).

SECTION 4

Amend Title 36, Chapter 4 to add the following new appropriately designated Section:
36-4-___  (a)  When the parties to a divorce action choose to enter into marital counseling together with a counselor of their choosing, the counselor shall not divulge information disclosed to the counselor by the parties or by others in the course of counseling. All records, reports, and other documents developed by the counselor or provided by the parties to the counselor in connection with the counseling are confidential and privileged.
(b) Communications made during counseling may be disclosed only:

(1)  When all parties to the counseling agree, in writing, to waive the confidentiality of the written information;
(2)  In a subsequent action between the counselor and a party to the counseling for damages arising out of the counseling;
(3)  When statements, memoranda, materials and other tangible evidence are otherwise subject to discovery and were not prepared specifically for use in and actually used in counseling;
(4)  When the parties to the mediation are engaged in litigation with a third party and the court determines that fairness to the third party requires that the fact or substance of an agreement resulting from mediation be disclosed; or
(5)  When the disclosure reveals abuse or neglect of a child by one (1) of the parties.
(c)  The counselor shall not be compelled to testify in any proceeding, unless all parties to the counseling and the counselor agree in writing.

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Status:

SB428/HB438 has been assigned to the Judiciary Committee in the Senate and to the Domestic Relations Subcommittee of the Committee on Children and Family Affairs in the House.

Research and Links:

Marriage FACTS in support of Divorce Reform

Executive Summary
What the information below demonstrates is that the move in our country to make divorce easier has created “unilateral divorce,” empowering one spouse who is unhappy to leave a spouse who is otherwise happy or desirous of trying to make the marriage work.  The law has produced this unintended result to the injury of marriage (who will invest much of themselves in a relationship that can be unilaterally terminated?), children, and justice.
It demonstrates that marriage is subject to the inevitable ebbs and flows of life and that, given time, a significant majority of unhappily married adults who avoid divorce or separation will end up happily married five years later. Conversely, it shows that just one out of five of unhappy spouses who divorced or separated had happily remarried in the same time period. 
It demonstrates that children are better off with a married mom and dad and that, absent abuse or serious conflict, children are better off with parents who experience conflict than they are if the parents divorce.
Lastly, the evidence demonstrates that longer waiting periods can have an affect on the divorce rate. 
We hope, when you have read the facts below, you will come to the same conclusions to which we have come, namely, that:
            If 75% of divorces have one happily married spouse,
            If divorce does not usually make the unhappy spouse any happier
            If divorce tends to hurt children unless there is abuse or serious conflict,
            If, like all of life, there are ups and downs in marriages, 
            If the “downs” are often overcome by time, and
            If strong marriages make a strong social order,
Then slowing down divorce where fault is not the ground for divorce is good for marriage, good for children, and good for all.

Marriage Before and After No-Fault Divorce
In 1969, one-fourth of marriages ended in divorce and of these, 85% to 90% were not contested.
The number of divorces rose from 393,000 in 1960 to 708,000 in 1970.
From 1970, the year after No Fault in California to 1978, the number of divorces jumped another 55 percent to 1.1 million.
It is estimated that in 2005, there were 1,067,400 million divorces.
In Tennessee, the divorce rate dropped slightly between 2001 and 2004, but compared to changes in divorce rates in other states, Tennessee’s divorce rate has gone from 38th highest to 41st highest.

What No Fault and Irreconcilable Differences Did
"'You can't force two people to stay married,' we tell
ourselves and turn the page. Divorce, however, is not
usually the act of a couple, but of an individual. Eighty percent of
divorces in this country are unilateral, rather than truly mutual,
decisions. Rather, the divorce revolution can be more accurately
described as a shift of power, favoring the interests of one party over
others: the interests of the spouse who wishes to leave over those of
the spouse who is being abandoned and over those of the children whose consent is not sought."

"Reforming no-fault divorce is more than a tactical necessity.
Simple decency requires that the law retreat from relentlessly favoring
the spouse who leaves in no-fault divorces and place some minimal power
back into the hands of the spouse who is being left. Imposing a five- to
seven-year waiting period for contested no-fault divorces (as do many
European jurisdictions) would serve the ends of both justice and
prudence: raising the number of marriages that ultimately succeed, while
at the very least ensuring that those who want a quick and easy divorce
will have to negotiate with their marriage partner in order to get it."

Unhappy Couples or Unhappy Individuals?
Unhappy marriages were less common than unhappy spouses. Three out of four unhappily married adults were married to someone who was happy with the marriage.  75% of the time, one spouse to a divorce was happily married!  

Does Divorce Solve Problems?
For the Adult Spouses?
Unhappily married adults who divorced or separated were no happier, on average, than unhappily married adults who stayed married.
Even unhappy spouses who had divorced and remarried were no happier, on average, than unhappy spouses who stayed married.
Divorce did not reduce symptoms of depression for unhappily married adults, or raise their self-esteem, or increase their sense of mastery, on average, compared to unhappy spouses who stayed married.
Staying married did not typically trap unhappy spouses in violent relationships. Eighty-six percent of unhappily married adults reported no violence in their relationship (including 77 percent of unhappy spouses who later divorced or separated). Ninety-three percent of unhappy spouses who avoided divorce reported no violence in their marriage five years later.
If only the worst marriages end in divorce, one would expect greater psychological benefits from divorce. Instead, looking only at changes in emotional and psychological well-being, we found that unhappily married adults who divorced were no more likely to report emotional and psychological improvements than those who stayed married. (emphasis added)

For the Children Involved?

"Research seems to suggest that the marriage must be under intense and consistent conflict before it can be considered better for the children if the parents get a divorce."

"[T]the behavioral problems from the single-parent families are far worse than in unhappily married families."

According to… research … in the … 1997 book A Generation at Risk a whopping 70 percent of divorces end "low-conflict" marriages. "For children's sake," [sociologists, Paul] Amato and [Alan] Booth conclude, "some marriages should not be salvaged. But in marriages that are not fraught with severe conflict and abuse, future generations would be well served if parents remained together until children are grown."

Only 12 percent of divorced parents are able to create friendly, low-conflict relationships after divorce.

Fifty percent of middle-class divorced couples engage in bitter, open conflict as "angry associates," or worse, "fiery foes."  Five years afterwards, most of these angry divorced [couples] remain mired in hostility.

Nearly a third of friendly divorces degenerate into open, angry conflict."

Two-thirds of angry divorces remain that way after 5 years of being separated, and one-quarter to one-third of those divorces that were initially in good spirits had degenerated to open conflicts."

Time Changes Things?
The vast majority of divorces (74 percent) happened to adults who had been happily married five years previously.
Two out of three unhappily married adults who avoided divorce or separation ended up happily married five years later. Just one out of five of unhappy spouses who divorced or separated had happily remarried in the same time period. 
The most unhappy marriages reported the most dramatic turnarounds. Among those who rated their marriages as very unhappy, almost eight out of ten who avoided divorce were happily married five years later.

Waiting Periods Support Marriage.

Waiting periods for divorce range from 0 to 2 years in U.S. and from 0 to 6 years in the 22 European nations participating in the Commission for European Family Law.

Of the 22 European nations studied, all 8 of them with a divorce rate under 0.2% have either mandatory counseling or waiting periods of three or more years.

Of the 13 European nations with a divorce rate of 0.2 to 0.3%:
- 5 have waiting periods of three or more years,
- 3 have waiting periods of 1 or 2 years.

Waiting periods in the U.S.:
-Of the 10 states with the highest divorce rates,  9 have no waiting period.
-Of the 10 states with the lowest divorce, 5 have waiting periods.
States with any waiting period tend to have slightly lower divorce
States with 2 year waiting periods have much less divorce than the U.S. average.
Longer waiting periods and mandatory counseling (not education) both correlate strongly, but not perfectly, with lower divorce rates.

Why You Should Care?

From a purely pragmatic standpoint, other peoples’ divorces affect you.  The 2004 State of Our Unions report reveals that "marriages that end in divorce also are very costly to the public. One researcher determined that a single divorce costs state and federal governments about $30,000, based on such things as the higher use of food stamps and public housing as well as increased bankruptcies and juvenile delinquency. The nation's 10.4 million divorces in 2002 are estimated to have cost the taxpayers over $30 billion."

In the U.S., "the average divorce costs nearly $50,000, and ... $175 billion
is spent annually on divorce, mostly on litigation."

.

Do Mothers and Fathers Matter?
by Maggie Gallagher and Joshua K. Baker

Reforming No-Fault Divorce by Michael J. Manus http://www.ethicsandreligion.com/redesignedcolumns/C1325.htm

Mutual Consent: A Major Divorce Reform by Michael J. Manus http://www.ethicsandreligion.com/redesignedcolumns/C1324.htm  

“Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences” http://www.americanvalues.org/html/r-wmm.html

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