State Policies to Promote Marriage. B. Divorce Laws and Procedures


The second area of interest is whether states have proposed or implemented policies to change divorce laws or procedures. We examined covenant marriage, modifications to no-fault divorce, mandatory education for divorcing couples, waiting periods for divorce, different laws for couples with children, and mediation initiatives. All 50 states and the District of Columbia have at least one activity in this area. (Tables 2 and 3 in the detailed matrices provide information on specific state policies.)

Covenant marriage laws. One area of divorce reform is covenant marriage legislation. Three states have passed such laws: Louisiana (1997),(5) Arizona (1998), and Arkansas (2001). In each state, couples have the choice between regular marriage and covenant marriage. Covenant marriage generally requires pre-marital counseling, signing of a statement of intention to enter into a covenant marriage, and an agreement to seek additional counseling if marital problems surface. Divorce is granted for specified “fault-based” reasons, including adultery, domestic violence, commission of a felony, and alcohol or drug abuse. Couples that seek a divorce based on mutual consent (e.g., no-fault) must wait a specified amount of time (e.g., two years in Louisiana). Twenty-five other states have introduced one or more covenant marriage bills. Bills failed in 11 of these states.(6)

Modifications to no-fault divorce laws. When a party seeks a divorce, he or she must state the ground for divorce. All states offer no-fault divorces in which neither the wife nor the husband blames the other for the breakdown of the marriage. In 13 states, no-fault is the sole ground for divorce. Common bases for no-fault divorces are irreconcilable differences, irretrievable breakdown, or incompatibility. Thirty-nine states also offer fault-based grounds for divorce, including adultery, physical cruelty, desertion, and use of drugs.(7) We found 17 states that addressed one or more modifications to no-fault divorce laws. In one state — Georgia — a law was enacted, while in the others, bills failed or are still under consideration. In Georgia, a no-fault divorce cannot be granted unless both parties agree to the divorce and no children are involved. No-fault modification bills failed in seven states.(8) New Jersey’s bill, for example, would have outlawed no-fault divorce. Indiana would have only allowed no-fault divorces for marriages based on contract licenses (as opposed to covenant licenses). Proposed laws in 10 states would regulate no-fault when a child is involved (e.g., California would require parents to complete a parenting plan) or would require the mutual consent of both parties.(9)

Mandatory education on the effects of divorce. States are also taking steps to educate couples about the effects of divorce on children. Twenty-six states have one or more activities in this area. Nineteen states enacted laws that mandate education for divorcing couples. Generally the focus is on requiring parents (as opposed to couples with no children) to attend an educational program on the effects of divorce on children and to discuss parenting issues. Laws in eight states require all parents to attend a class.(10) In the other 11 states with laws, courts may order participation, with requirements varying by county in some states.(11) An additional nine states have introduced one or more bills. Bills that are still in progress in five states focus on required counseling or education (Maryland, Pennsylvania, Wisconsin), and distribution of a booklet on options available to couples prior to divorce (New Mexico). Michigan, which already has a voluntary program, is considering legislation that would require a pre-divorce program on the effects of divorce on children. Bills failed in five states.(12) Kansas’ failed bill, for instance, would have required education on the effect of divorce on the child involved, including developmental stages, responses to divorce, symptoms of maladjustment, and education and counseling options for the child.

The presumption of joint legal custody. Research suggests that joint legal custody can help reduce conflict after a divorce, increase the non-custodial parent’s involvement with the children, and increase child support payments relative to non-custodial parents who do not have joint custody.(13) Most jurisdictions (47) have a joint legal custody presumption law on the books.(14) In these cases, the presumption or strong preference is in favor of joint custody. In Delaware, for instance, the statute states: “The father and mother are the joint natural custodians of their minor child and are equally charged with the child’s support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right or presumption of right or fitness, superior to the right of the other concerning such child’s custody or any other matter affecting the child…Where the parents live apart, the Court may award custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.”(15)

Minimum period before a divorce is granted and residency requirements for a couple seeking a divorce. Minimum waiting periods for divorce or some type of residency requirement are also common. Twenty-two jurisdictions define a minimum period between the date a petition for divorce is filed and the date the court grants a divorce. The period ranges from 20 days (Wyoming) to one year (Vermont). Utah also has additional legislation pending. Legislators attempted to remove a section in the law that exempted couples from a waiting period if they completed an educational course (the bill died).(16) All but two states (Alaska and South Dakota) has a residency requirement before a divorce can be filed. The residency requirement ranges from 30 days (Arkansas) to one year (12 states).(17)

Different laws for couples with children. Finally, 30 states have implemented or considered one or more policies that treat divorcing couples with children differently from those without children (7 states have activities in more than one area). These policies generally are not mutually exclusive from other categories. The most common area is mandating or offering education about the effects of divorce on children. As noted above in the section on mandatory education, 19 states have laws in this area.(18) Nine states proposed legislation.(19) Of the 17 states that passed or are considering modifications to their no-fault divorce laws, 9 nine addressed eliminating no-fault divorce in cases with children (one law passed and eight are proposed).(20) In addition, of the 22 states that define a minimum period between the date a petition for divorce is filed and the date the court grants it, two have longer waiting periods before a divorce is granted to couples with children (Oklahoma and Tennessee). In Oklahoma, there is a 30-day waiting period if minor children are involved (no waiting period for childless couples); in Tennessee, the waiting period is one month longer for couples with children (90 days versus 60 days).

Mediation initiatives. Eight states offer mediation services through the courts.(21) Mediation generally addresses custody and visitation issues. California, Iowa and Wisconsin mandate mediation for custody and visitation disputes. In Kansas, divorce education workshops and dispute resolution is mandated in some counties and offered in others at the judge’s discretion, while in Missouri mediation is available but not required. In the District of Columbia, judges have the option of mandating mediation. In New Mexico, court-ordered marriage clinics provide evaluations of both parents and mediation prior to divorce. In Utah, however, all couples requesting a divorce, regardless of the presence of children, must receive mediation.