No Defense for the Healthy Marriage Act

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The so-called “Healthy Marriage Act,” North Carolina Senate Bill 518, currently in committee, would put extra legal hurdles in front of couples that want to divorce, including waiting two years and attending counseling classes. Trying to strengthen marriage by making it difficult to end is like trying to prevent obesity by outlawing large soft drink containers: it overreaching and will not work.

Under current North Carolina law, a couple must live separately for one year before filing for divorce. Rather than requiring the parties to live separately, the Healthy Marriage Act would require one of the spouses to “declare” that she intends to divorce in the future and then wait for two years. One benefit of the current law is that it allows the parties to test living separately before going through with a divorce.

The Huffington Post quotes Senator Austin Allran, the Act’s primary sponsor, as saying: “North Carolina has a very high divorce rate — one of the worst — and it’s probably because we’ve been lax in our divorce laws. Made it too easy.” This turns out not to be the case. My research has yielded no correlation between “lax” divorce laws and the divorce rate. D.C. has the lowest divorce rate; Oklahoma the highest. Neither state has a waiting period.

Thirty-four states have no waiting period. Only three states have an eighteen month waiting period. No other state requires a two year wait, so North Carolina would have the longest waiting period in the country.

The Act would also require the spouses to take a course on communication skills and conflict resolution. If the couple has children, the couple would also have to take a four hour class on the impact of divorce on children. This would be a boon for family therapists and family law attorneys, who would now have a more complex law through which they have to navigate their clients.

Filing for absolute divorce in North Carolina currently requires one spouse to file a straight-forward complaint in the county district court. Often the other spouse does not respond to the complaint, so the County Clerk enters a default and then enters the divorce judgment. In these situations, the couple does not even have to go before a judge to get a divorce.

The Healthy Marriage Act does not make any provision for abandoned spouses. Under current law, if a spouse has abandoned the marriage and cannot be found, service of the divorce complaint can be done by publication. Again, if there is no response, the clerk will enter a default. Under the proposed law, the spouse who wants the divorce will not be able to prove that the spouse who abandoned the marriage took the required classes. In that situation, the spouse wanting the divorce would not be able to get it until she found the abandoning spouse and got him to take the required classes.

A spouse who did not want to get divorced could refuse to take the classes. In abusive relationships, this would put an additional burden on the abused spouse. The abuser would have leverage to make demands, and the additional waiting period would only serve to keep the couple together longer.

It is doubtful that Healthy Marriage Act would do anything to achieve its stated goal, but it would be additional government intrusion on the lives of North Carolina citizens. Disputes in family court already require couples to put their private lives in the public record. Family court judges can determine the parents’ custody schedule, where the child will attend school, drug testing and psychological evaluations. The Act would require the courts to get even more entrenched in couple’s personal lives. It would create more problems and solve none.

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