What’s the big rush to get divorced?

In the 2012 session, the Utah Legislature took a welcome baby step toward restoring moral seriousness to the state’s treatment of divorce by restoring the (very short) 90-day waiting period before filing and finalization.

At the other end of the country (in more ways than one), New York formally acquiesced to the divorce revolution in 2010, becoming the last state to adopt no-fault divorce. A recent Wall Street Journal article describes a small but significant wrinkle in the implementation of the change. It seems that some judges actually apply the law as it’s written and this is, to some, a problem. Specifically, “a handful of judges have interpreted the law differently, calling for trials to determine whether the marriage is ‘irretrievably broken.’” This has led one legislator to propose legislation “that would ban jury trials in no-fault divorce cases.”

Why the uproar over judges doing what seems reasonable? The law says a divorce can be granted if a marriage relationship “has broken down irretrievably for a period of at least six months.” How would a court know that this has happened without some kind of inquiry? 

According to some lawyers cited by the Journal, the legislature should have been more explicit in endorsing “the generally understood definition of no-fault divorce: If one spouse wants to dissolve the marriage, it should be dissolved.” As one prominentNew Jersey attorney (who said she is “horrified” by the idea of courts examining the grounds for divorce) says: “It only takes one person to believe it’s a broken marriage.”

The obvious injustice here is noted by an adjunct law professor quoted in the story: “I think there would be problems if you’re leaving the court in a position of having to make a finding of fact, which is presumably based on evidence, and then saying only one side gets to be heard.” He notes this is “a fundamental violation of due process.”

It should be a source of discomfort for us to think that our laws are designed to perpetrate an injustice.

A hard look at the situation in New York, which has been largely institutionalized in Utah, should motivate the state to continue down the path of reform to strengthen marriage.

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