No-Fault Divorce, Covenant Marriages and Divorce Mediation
As the topics of no-fault divorce and covenant marriages have made their way into the national headlines with the election of a conservative House Speaker, it is worth a quick review of how divorce laws have evolved over time.
Historically, divorce laws allowed divorce only upon proof of fault. Grounds for divorce were enumerated in state statute and included, for example: cruelty, neglect, adultery, abandonment, drunkenness or insanity. In the 1950’s, for example, it was noted that approximately 95% of divorces in Cuyahoga County (Cleveland) were sought on the grounds of gross neglect of duty and extreme cruelty.
Critics of this archaic fault-based scheme noted its many downfalls. Many spouses, for instance, were forced to remain in abusive relationships. The emotional and financial hurdles to hire a lawyer, file for an adversarial divorce, and publicly allege misconduct were simply too overwhelming for most. And even for couples who did agree to divorce, the incidence of collusion was high as they had to strategically comport with statutory requirements to conclude their marriage. If the court found evidence of collusion, the divorce would be denied.
In the 1960’s, cultural attitudes toward marriage and divorce began to shift. In 1969, California was the first state to pass a no-fault divorce law. Soon after, a wave of divorce reform swept the nation. By 1985, nearly all fifty states allowed couples to divorce based on some type of no-fault provision.
Ohio, in fact, was the first state in 1974 to pass compromise legislation that allowed termination of marriage upon agreement of the parties, otherwise known as “dissolution.” R.C. 3105.61, enacted by 1974 H.B. 233, eff. 9-23-74. Under a dissolution scheme, a couple can avoid an adversarial lawsuit. There is no “plaintiff” or “defendant” and the court does not have to determine property rights, spousal support or allocation of parental rights. Instead, the couple agrees on the terms of their separation – both financial and shared parenting – and files a petition to have the court review and approve their agreement.
In response to the proliferation of no-fault divorce, many state legislatures have sought to change their marriage statutes. In the states of Louisiana, Arizona, and Arkansas, for example, there are “covenant marriage” laws on the books. In this instance, premarital counseling is required before a couple may enter into a covenant marriage. And for couples who choose a covenant marriage, they promise to undergo marital counseling before filing for divorce, and divorce is permitted only upon the showing of a 2-year separation or proof of fault.
Divorce mediation, such as the type offered by Next Page Mediation, is aligned with a no-fault approach. A fundamental principle of mediation is self-determination. The parties are responsible for making their own decisions. Mediation simply provides the forum for a productive conversation. As a mediator and neutral third-party facilitator, I do not delve into subjective notions of fault. The reasons why a couple is divorcing are almost always immaterial. Instead, mediation is focused on the how. Can a couple achieve a peaceful resolution and save themselves and their children from the harsh repercussions of a litigated divorce? Do they feel empowered to arrive at a resolution that it is fair and equitable? These are the important questions of mediation – not who is at “fault.”