I rarely blog on proposed family law legislation. Often legislation fizzles to nothing: in my twenty years of practice bills to abolish common law marriage or reform alimony had gone nowhere. Other times bills become radically altered during the legislative process. Within the past few years a bill to make grandparent visitation more uniform ended up greatly weakening grandparent visitation rights while a bill to encourage joint custody ended up merely codifying case law without favoring joint custody.
Thus the recent proposed legislation to reduce the one-year waiting period for a no-fault divorce doesn’t interest me. I’ve no insight into whether it will pass and no opinion on whether the current waiting period is too long. However one opinion I do have on the issue is that there’s no reason the no-fault waiting period needs to be uniform. South Carolina’s waiting period has always been uniform–it was three years until the 1980’s–but not every state has uniform waiting periods. In Pennsylvania there is a 90-day waiting period for a divorce by consent but a two-year waiting period when there is no consent. In Virginia there is a six-month waiting period if the parties have no minor children together and have a written separation agreement but a one-year waiting period if they have minor children.
There’s good jurisprudential rationales for these differing waiting periods. Pennsylvania, by shortening the waiting period 21 months if the parties agree to the divorce, grants the abandoned spouse leverage in negotiating issues of child custody, support and property division. However such a spouse cannot be too unreasonable as his or her leverage decreases over time and ends after two years. Giving the abandoned spouse some leverage discourages spouses from treating their vows lightly thereby supporting society’s interest in preserving marriages.
Virginia, by having waiting periods dependent upon whether minor children are involved, recognizes that divorce is more consequential if the spouses have minor children. Parental separation has well documented negative impacts on children, especially minor children. Requiring spouses who are raising children together to wait longer before ending their marriage offers greater protection to children from the disruption of divorce and discourages parents from giving up too easily on marriage.
Perhaps the issue our legislature should consider is not whether to reduce the waiting period for no-fault divorces but whether the waiting period needs to be uniform.