State Rep. John Lesch and state Sen. Sandy Pappas recently introduced a “cooperative private divorce” bill that creates an administrative pathway to divorce that skips the court system. If most divorces settle out of court and people just file paperwork for court approval, why is this such a significant reform?
Any time people are put in an adversarial position, anxiety and animosity are almost inevitable. A court proceeding is fundamentally a contest between adversaries — a win/lose battle that depends on convincing a powerful decisionmaker that the other person is wrong.
In our culture, the very idea of divorce has the court system in the background. People are assumed to be adversaries, and they respond with hostility in the very situation that calls for generosity of spirit. Everyone in the family law system knows the bitter court battles that result. Even more important, many of the divorce cases that settle out of court are begrudging compromises made by adversaries to avoid the risk of a judge deciding against them.
The hard work of many good people has humanized the divorce system, and Minnesota’s is one of the best. But the essential nature of the adversary court system cannot be negated. It’s like how we handle prostitution and drug use — diversion and treatment programs have modified the criminal system, but once an issue is assigned to the criminal system rather than the public health system, certain consequences inevitably follow. Once we decide that divorce requires a court order, we suffuse the process with conflict.
In a cooperative private divorce, people would submit a simple form online called “Intent to Divorce.” After 90 days to make sure they have thought it through and have consulted with any advisers they wanted, they could submit another form called “Declaration of Divorce” that contained whatever agreements they chose to make about their children or their financial affairs. Then they would be issued a “Certificate of Divorce.” That’s it. Complete privacy. No judge’s approval. The couple could modify their agreements or scrap the private system and go to court any time they wanted.
The most common criticism of this new system is paternalistic: Without oversight, people will screw it up. But most “mistakes” now come from lay people not always following the complex rules a judge might use to decide arguments about things like real estate. But is it really a mistake if people agree on what seems fair to them? And if they wanted to follow complex rules, they would be free to hire lawyers. People get married, raise children and write wills without court oversight. Why can’t they decide how they divorce?
Once the court monopoly on divorce is ended, the private market will respond with supportive services that not only would reduce mistakes but may prevent some divorces, because the first stop for couples in trouble won’t automatically be a lawyer to represent them against their spouse. We know lawyers who welcome this chance to do creative work in a nonadversarial setting.
Another objection is that some people will be pushed around without a judge to protect them. The bill contains careful warnings that the private system should be used only by people who can work together in good faith. And, as in all areas of the law, judges will retain authority to vacate private agreements obtained through misconduct.
Some experienced family lawyers contend that an administrative divorce system is unconstitutional. Legal scholars will weigh in, but it’s interesting that those who say it’s unconstitutional don’t usually refer to a constitutional provision or a policy argument about why the Legislature lacks authority to dissolve the bond between people it created. Rather, they contend that some court might find the system unconstitutional. This is exactly what happens in the current divorce system — the discussion moves from what is the best course of action to a prediction about what a judge might do.
Everywhere you look, the tide of cultural evolution is toward empowerment and respect for individuals. It is time the divorce system got into the flow.
William Doherty is a professor of family social science at the University of Minnesota. Bruce Peterson is a Hennepin County district judge.