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Should Divorce Laws Rest in Federal Law Instead Of Letting The States Decide?

Wednesday, March 22, 2017 19:10
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Matrimony is supposed to be guided by love and commitment, but that is not always the case. As many as half of all marriages end in divorce, which can become complex and ugly. The laws that regulate marriage and divorce are largely left for individual states to decide. Marriage laws are not just the definition of who can get married and at what age, but also who can end a marriage, the reasons why, and how many hurdles you have to jump through to say “I don’t anymore”.

States get to decide the logistics concerning divorce proceedings, but in legal circles, there are some experts who are suggesting that perhaps there should be more standardization in divorce laws and rules. It hardly seems fair that if you live in one state, you have to wait two years to get divorced, when just a few hundred miles away, you can end a marriage in as little as two weeks.

A recent Supreme Court ruling in 2015 made gay marriage legal across the nation.  This new development has many legislators and attorneys wondering if perhaps other marriage legalities should be decided at the federal level, instead of being left up to the states. Marriage has always been a state’s rights issue, but if the Supreme Court is allowed to put jurisdiction on gay marriage, perhaps national divorce law should likewise be determined and standardized on a federal level.

One of the biggest issues for couples occur when they cross over state lines, moving from one state to another. If they get divorced, they are not beholden to the rules that they agreed to when they were married. Once they move to a different location, the contract they entered into when they said “I do” no longer applies.

Of course, there are those couples who can dissolve a marriage without having to hire a divorce lawyer, reaching a mutual agreement about how to separate assets and determine custody of their children. But for nasty divorces, the law often has to step in. When it does, the couple must abide by the laws that are in place in the state they’re living in when the divorce occurs. Regardless of where they got married, they must follow state laws in the place where they’re living when they divorce.

Things such as alimony, custody, time required to file, distinguishing between marital assets and assets you had prior to marriage, and handling things like investments and pensions, are all serious but complex considerations. They are all also things that may vary from one state to another, which simply seems arbitrary to a person who is divorcing.

The difference from one state to the next can be astounding. If a couple has to relocate due to a job, why must they surrender the marriage contract that they entered into when they took their vows? A fairer way to protect both parties in a divorce is to have a standardized way to calculate monetary assets and other financial matters.

When it comes to specifics like fault and no fault divorce or waiting periods, things can get even more complicated. Some states, like Pennsylvania, require that couples to live separately for a minimum of one year before filing for divorce. It used to be three years, but the time has diminished over the past several decades. The reason that the time constraints have changed is that making couples wait a specific amount of time can be emotionally disturbing for both people, as well as for their children.

The original idea behind the waiting period was that each partner should have time to consider the gravity of what divorce does, both financially and emotionally, to both partners. But, the fallout for the children who have to sit in limbo can be more damaging, and lead to emotional upheaval for everyone. There is no evidence that a waiting period rejoins more couples, or that it is healthy for anyone involved.

In any instance, setting a time limit for a couple’s personal decision may seem like an overreach on the part of state governments. Many states, however, still approach divorce as if they have jurisdiction over marriages, and over who can and cannot separate. That can lead to one partner abusing the system for their own gain, and to damage to the overall family unit.

Those living in a specific state should not be penalized for where they live, be entitled to fewer marital assets or less support, or have to wait longer when they know that there is no resolution to their marriage problems. Perhaps standardizing divorce rules at a federal level would make things more “fair,” and allow families to have a clear definition of entitlements no matter where they choose to live, or why they choose to divorce.


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  • raburgeson

    To be free means that no one can make decisions that would effect your life. People stand up and become free.

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