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Does divorce need to be adversarial?

The Minnesota Legislature is more than half-way through its 2015 session, and last week marked the deadline for bills to be voted out of committee. The bills that did not move out of committee are off the table for this session. They will carry over to the 2016 session, though; they may still become law.

Scores of bills dealt with family law issues this year. Some of them address crimes against children and women, some address children's health care needs. One even proposes a tax credit for toddlers.

Some deal directly with marriage and divorce, and it looks as if many of those did not get past committees this year. Among them is a bill that proposes Minnesota adopt "Cooperative Private Divorce."

In fact, the bill's sponsors had decided not to push for a hearing during this session. They do want lawmakers and Minnesota residents to start thinking about it, though. The idea, they claim, is the next logical step for no-fault divorce.

Private divorce would not involve the courts. The parties would file an "Intent to Divorce" form with a state agency and then proceed to write their own divorce agreement. After 90 days, the couple would submit the agreement and a "Declaration of Divorce" form, and the marriage would be dissolved. There would be no attorneys involved, and the court would not need to sign off on the agreement. Plus, all of the information would be confidential.

Attorney and court involvement turn even amicable divorces into adversarial proceedings, the sponsors argue. This would be just one avenue couples could take: If there are disputes over property or custody, the couples would certainly be taking the more traditional path. Further, any problems down the road for privately divorce couples can still be resolved with court involvement.

Opponents of the bill say, first, that the program is unnecessary. The current system allows couples to divorce with very little interaction with the court. Second, chances are that the courts will take more time unwinding bad agreements under private divorce than they do reviewing and approving agreements now.

There is also an argument that the law would be unconstitutional. According to the Constitution, family law matters are handled in state courts. It is not up to the Legislature to change that, one critic says.

We will have to wait for next year to see which side prevails.

Sources:

Star Tribune, "'Private divorce' measure aims to take split-ups out of Minnesota courtrooms," Abby Simons, March 4, 2015

Minnesota House of Representatives, HF 1348 status as of March 23, 2015

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