The XX Factor

A Mandatory One-Year Waiting Period for Divorcing Parents Is a Terrible Idea

An additionally mandated one-year waiting period for divorce may do more harm than good

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In an op-ed in last Friday’s Washington Post, family studies professor William J. Doherty and former judge Leah Ward Sears claim that many people who get divorced actually want to stay married. So the authors set out what they say is a “modest reform”: a mandatory one-year waiting period before parents with minor children can get divorced. But their portrayals of what divorcing couples want and what divorce laws require of them are seriously misleading. 

First, the authors have hardly any evidence that divorcing couples want to stay married. Their claim is largely derived from a Minnesota study of just over 300 couples going through divorce; in 30 percent of these marriages, one spouse expressed interest in reconciliation services, and in another 10 percent, both spouses did. In other words, in 90 percent of these couples, at least one partner was completely uninterested in reconciling. Setting aside the wisdom of premising national policies on the self-report of a hundred-odd Minnesotans, their responses are hardly a mandate for year-long waits for divorce.

Second, as I point out in a letter published in today’s Washington Post, the authors misrepresent how long it currently takes to get divorced. They leave readers with the impression that divorce is available on demand, by claiming that most states have “waiting periods” of six months or fewer. It’s true that in most states, once someone files for divorce, he or she isn’t required to wait long to get one. But what the authors leave out is that in many states, in order to file for a no-fault divorce in the first place, couples have to have lived “separate and apart” for months or even years. (No-fault divorce lets couples end their marriages without one spouse accusing the other of wrongdoing.) In other words, states already force couples to take plenty of time to decide whether they want to reconcile.

Sears and Doherty’s Second Chances Act would extend the wait even longer, requiring couples to weather a year-long waiting period after already satisfying their state’s statutory separation period. At best, this would leave families in prolonged limbo, preventing them from getting on with their post-divorce lives. At worst, the long wait after filing could encourage the 90 percent of couples unlikely to reconcile to run into court as quickly as possible. That’s hardly conducive to reconciliation.