Can My Spouse Divorce Me?
Traditionally, Valentine’s Day is a day of romance, but as the romance fades, some people realize they are no longer in love with their spouse. At that point, they begin thinking of divorce. But what if the other spouse wants to work things out? In Minnesota, all that is required to obtain a dissolution of marriage order or divorce is one spouse’s statement there has been an “irretrievable breakdown in the marriage relationship.” That’s it! Why? Because we live in a “no-fault” divorce state. Therefore, even if one spouse “refuses to sign” the divorce will still occur.
Now no-fault divorce procedures exist in every state, but it did not used to be that way. In 1953, Oklahoma adopted the first no-fault divorce statutes in the country, followed by California sixteen years later in 1969 with the passage of the Family Act Law and signed into law by then Governor Ronald Reagan.
Back in the old days, in order to get a divorce, “grounds” were needed. Some of the grounds for divorce that could be alleged were adultery, cruelty, abandonment, insanity, and confinement (one spouse being incarcerated or jailed). Those allegations could be met with the defenses of condonation (agreeing to the bad behavior), connivance (backstabbing), reconciliation (forgiving), and recrimination (blaming the other spouse of the same acts). The process was litigious in nature, and it was extremely ugly. And when a fault-based divorce was granted, the wife often got the house and kids, and the husband was ordered to pay alimony and child support.
“No-fault” divorce statutes were intended to reduce the acrimony that developed during the divorce process, which was ultimately seen as a benefit to the children involved. Minnesota adopted no-fault divorce in 1974, but the process has remained difficult on the family because the focus of the fight has shifted from the reason for divorce to child custody and property issues. So, although it is very easy to legally obtain a divorce, the determining the issues of custody, child support, and property division remain expensive and emotionally draining.
As bad as the legal battles in divorces with children can become, the most difficult part is really “co-parenting” the children after the divorce. Custody, child support, and parenting time are all usually decided during the proceeding, and difficult to change. One common mistake is agreeing to joint physical custody when the parents are unable to effectively communicate with one another or hold different parenting philosophies. Granting sole physical custody to one parent, with reasonable and liberal parenting time to the other, is oftentimes the best choice for the children involved as it can reduce the ongoing conflict between parents. But that affects child support, so the levers move as the decisions are made. Thus, consulting an attorney, even if a party cannot afford one for the entire process, is deeply beneficial in helping construct expectations, informing a person of his or her rights and the rights of the spouse, and most importantly, identifying issues relevant to the case.
Spouses must understand that any joint debt held in both names during marriage will not disappear, even if the other spouse agrees to pay. I have seen when one party agrees to take on certain debts and be ordered by the court to pay, but then fails to do so; the other spouse is still left holding the bag. At the time, complex issues of bankruptcy and debt management should be discussed; however, doing so has more legal ramifications, so once again consulting an attorney can have great benefits.
Finally, from my perspective, the attorney’s job is to seek value, reduce the stress of the process, encourage healthy communication for the sake of the children, explain and navigate the process, properly introduce evidence, manage expectations, and quickly and fairly divide debts and assets. Other family law attorneys believe that their job is to get what their clients want and deserve, rather than what they need and have a right to. This is not wrong, just a different legal practice philosophy. But that kind of philosophy defeats the original intent of the no-fault divorce statutory system and to which opposing counsel is almost required to respond in kind. So has anything really changed? The process is still as nasty, it’s just that the sundering of the matrimonial bonds is easier.
