By Scott Trout
Managing Partner, Cordell & Cordell
A Nebraska bill would require therapy or counseling for couples for up to six months before a divorce could proceed if children are involved or either the husband or wife does not believe the marriage is over.
State Sen. Tony Fulton’s bill would give judges greater discretion in a divorce case during this six-month “cooling off” period. (Read the full text of Fulton’s divorce reconciliation bill.)
However, similar legislation has been attempted in many states with only a few passing it. The concerns are from many perspectives.
From a litigant’s point if view, the proposed bill appears to give little or no discretion to the judge but to mandate counseling. The concern would be with an abusive spouse who denies the marriage is broken, forcing counseling for the sole purpose to harass the spouse.
There appears to be a “catch all” section giving the judge discretion to do what is in the best interests but in my experience it is rarely invoked.
Secondly, as a litigant I would be concerned that the government is mandating something such as counseling for six months and interfering in people’s lives and marriages when perhaps the prospects of actual reconciliation are futile.
Furthermore, the state grants adults the freedoms to enter marriage without restriction, but then assume those same two adults don’t have the common sense to understand when the marriage is over. I believe the statute would be better suited with discretionary language or both parties could waive out by filing a joint stipulation.
From a divorce attorney’s perspective, it creates a lot of problems trying to seek temporary orders of support and custody. While this proposal is silent, many like it have been interpreted to mean no court actions can take place during this six-month cooling off period. This would pose substantial hardships to both parents.
Furthermore, assuming it is allowed, the mere prospect of court action during this period serves as a catalyst to separate the parties even more as they argue in court during what is mean to be a period of trying to reconcile. It truly is a double-edged sword.
While I believe the idea is novel and respectable, history has shown us in other states that is impractical and doesn’t decrease the divorce rate by forcing it after filing for divorce.
Rather than mandating counseling, courts would be better served if they were empowered to order counseling at the discretion of the judge, if after competent evidence, the judge believed both parties would be best served by counseling rather than having one spouse controlling the issue.
The Cordell & Cordell law firm continuously recommends trying to save their marriage before filing. This bill attempts to deal with it after filing when perhaps the relationship is already so strained and deteriorated that any chance at reconciliation is insignificant.
Scott C. Trout is the Managing Partner of Cordell & Cordell, P.C., a firm focusing exclusively on domestic relations.
Mr. Trout practices all types of divorce, including complex asset and business valuation, in Missouri, Illinois and Georgia. Mr. Trout has been recognized as one of the leading attorneys in the family law area. He has excellent courtroom presence and is well respected by judges, opposing counsel and most importantly, his clients. He has appeared in all three District Appellate Courts in the State of Missouri, the Missouri Supreme Court, the 5th District Appellate Court in Illinois, as well as the 7th Circuit of the United States Court of Appeals.
Mr. Trout has been recognized by his peers and his professional accomplishments by being named Super Lawyer in the area of Domestic Relations for 2009, 2008, 2007 and 2006.
2 comments on “The Problem With a Mandatory Cooling Off Period in Divorce”
1 Year Mandatory Separation in NC
These mandatory “cooling off” periods are really hurtful and serve no good purpose. Here in NC, you have to live in separate residencies for 1 year before a final divorce is granted. In a situation like mine, where out of a 20 year marriage the last 10 years were spent as simply “house mates”, there is no need to have a cooling off period. We have already had one for 10 years!
The judge should have full discretion, especially in a no-fault, no-contest divorce. Now we have to live in “limbo” for another year, and neither one of us can truly get on with our new, separate lives until that year is over.
It is backwards.
What we need is 6 months mandatory counseling for people before they get married.
Once the attorney fees are paid and a divorce action is filed, the relationship trust is already broken. Almost nobody withdraws their filing at this point, no matter what counseling is mandated. And most who do withdraw end up either refiling or their soon to be ex-spouse refiling.