Marriage penalties in tax law

Section 1 (b): "evidence of separation" is intended to apply not only in states where separation is a ground of divorce, but also in states where separation is not a ground itself, but is considered to be irrefutable evidence of irretrievable breakdown, irreconcilable differences, incompatibility, etc.
A possible variation on this subsection would be to still allow an in-court hearing, rather than referral to a commissioner, if both parties want one. This is because, in some states, a hearing before a commissioner may be more expensive than a court hearing, and some new commissioners may not be well versed in the legal and evidentiary requirements for fault grounds.

Section 2 is based on Virginia legislator Roger McClure's divorce reform bill, HB 2624, in which nothing changes from the way divorce works now unless the Defendant (the spouse who is not seeking a divorce) asserts a right to object. Other reform proposals which aim at the same goal do this by requiring the Plaintiff (the one who wants a divorce) to get Defendant's consent before filing for a no-fault divorce, which makes it harder for the Plaintiff to take the initiative.

Those proposals are good in that they put the Defendant in a stronger position emotionally and rhetorically, because she is someone refusing to do someone else a favor to the detriment of her family, rather than assuming the role of someone who is objecting and standing upon her "rights" -- a position which is disapproved of and looked down upon in our culture. The only reason I do not prefer this "consent" model instead of the "objection" model is that "consent" models do not provide for cases where the Defendant has disappeared, or is totally passive and will not say yes or no. If someone writes consent-based legislation that deals with this, I would like to look at this issue again.

I have changed Del. McClure's wording in four ways:
First, I changed the separation time requirement so that for a divorce based on separation, the plaintiff's one year of separation before filing would only start after the children were all out of high school. The original version of the bill, and all other versions of this reform that I have seen, gives an incentive for one parent to move out on the child's 17th birthday, in order to have one year's separation when the child turns 18. (I would appreciate tips on improving the sentence structure of Section 2. I added an "unless" clause to Del. McClure's existing sentence, which contains an "if." The result is not ambiguous, but it may be hard to follow.)

Second, Section 2(a) means that the elimination of non-consensual no-fault divorce only applies to cases where there were children born before the separation. Although children need to be raised by both their natural parents regardless of whether the parents separated before birth or after, this wording avoids giving any added incentive to abort them. If your own analysis of this incentive indicates that it would be so minimal that it is outweighed by the benefit to the children from protecting the marriage, then you may want to leave out the phrase "before the parties' separation".

Third, I gave the spouse 60 days to object instead of 21, because divorce defendants often are unsure at first about what is happening, what to do, or even what they can do or want to do.
Fourth, I employed defensive drafting, anticipating perverse, pedantic, obstructionist interpretations by some courts. (See esp. Sec. 2(e) and Sec. 3(b).) Any divorce lawyer in my state would advise doing this. This is how I explained the situation to Del. McClure: "Can a no-fault divorce be entered if a spouse who has objected withdraws the objection? Reading [HB 2624] literally, the answer is no.

Many trial judges and their law clerks will take this position even if they are pro-divorce, because they are opposed to divorce cases, opposed to divorce litigants, and especially opposed to people who file things and then withdraw them (their theory being that if something was withdrawn it must have been frivolous in the first place, and that filings should be discouraged in the interest of docket management)." Also, judges have an ingrained tradition of obstructing fault-based divorce.
 
 They used to do this because before no-fault, divorce was supposed to be discouraged, especially if the judge suspected that the parties were cooperating to get a divorce and not conducting a true adversary proceeding. When no-fault was introduced, they continued to do this on the grounds that fault-finding was nasty, un-modern and irrelevant, and no-fault divorce was preferable. Many of them surely will continue this tradition even when the present reasons for it have disappeared.

Section 3 is a beefed-up version of a current provision of Virginia divorce law. The Virginia provision is up to the judge's discretion and is only available once the parties qualify for a no-fault divorce.
3(a)(i) would not present a venue problem, because the remedy does not depend on whether venue was proper.
3(a) (iii) This Section provides for agreeing to "consent" or to "no objection" because of the varying systems proposed in current reform bills.
3(b) is designed to avoid a problem that arose with the Virginia provision and other typical snags raised by judges and their law clerks.
3(d) leaves unchanged the courts' power, if any, to impose economic penalties for misbehavior. They presently can do this in Virginia and some other states. Under this provision, courts would be able to do so without going through the unique procedures designed for finding fault grounds for
divorce.

Section 7 -- Reform Choice-of-Law rules. This would mean that marriages, like contracts, would be governed by the laws of the place and time where they were entered into. The proposals out there that allow couples to choose their own marriage contracts, such as Louisiana's Covenant Marriage or the Washington State Bill Allowing Contracts to Restrict No-Fault Divorce, would need something like this in order to be effective. Even if only a few states passed such laws, it would be a big help to people married in other states. It's not an all-or-nothing situation; there's no need to wait until all states pass such provisions at once, or are forced to by Congress. States might even pass such laws at a time when they are still unwilling to pass any other restrictions on divorce.
Such provisions would also help people who were married before no-fault divorce was introduced, or who come from countries where divorce was rare or restricted at the time they married.

Section 8 -- "Hold Harmless" rules mean that a spouse can always get a divorce if he can afford to compensate the abandoned spouse and children well enough to prevent economic harm to them from the divorce. There are three different roles such a standard could play:
First, it could be used in cases where there are no minor children, because spouses still have economic expectations and needs. Many would argue that any restriction stronger than this should not apply when there are no children, because, without children to be "third-party beneficiaries" of the marriage contract, the state does not have a powerful enough interest to justify restrictions on personal liberty. In contract law in general, courts usually require payment of damages for breach of contract instead of forcing the parties to perform what they contracted to do. They can only force performance in order to prevent irreparable harm or protect certain third parties. The 13th Amendment, concerning "involuntary servitude," is often cited on this point.
Second, you could have a "Hold Harmless" rule that applies only when there are minor children, with no other restriction. Thus it would be a substitute for the consent model proposed by Section 2; and divorce would always be available for those who could afford it.
Third, it could apply in all cases. Thus it would replace the Section 2 consent requirement, but it would also protect spouses with no minor children.

Section 9 -- Marriage penalties in tax law. Many pro-family people have criticized the "marriage penalty" on two-income families. I doubt that the marriage penalty actually destroys happy marriages, but as a divorce lawyer I know that, more often than not, it is what drives separated people to file for divorce and to try to get their divorce through the court system as quickly as possible. Without this impetus, most clients would probably not spend money on their divorce (the divorce itself, not custody or support) until they wanted to remarry. This time constraint also discourages reconciliation attempts, because most reconciliation attempts destroy the one-year separation period; to get a no-fault divorce, the couple must again be separated continuously for a whole year.

For more information and explanation on Marriage Penalties see Introductory Article and Links on Marriage Penalties

Section 10 -- Optional -- Choice of Rules -- Couples could be given a choice about important provisions of the contract and rules that underlie their marriage, as opposed to the marital status itself. We already let people make premarital contracts about alimony and property. States could simply amend their divorce laws and/or their premarital agreement laws to include the text suggested in Section 10. If you use this method, the word "premarital agreement" should not be used as the name of their choice of divorce grounds, nor of the written form couples fill out. Premarital Agreements have unpleasant connotations for many people.
You want broad generic language when describing contracts or court forms the couple may have signed, because many couples will move between states with different procedures.