Blogging on family law isn’t for the weak of heart.

Just as I’m recovering from my marathon post on the six bills slated to rewrite our child support and custody laws, I got word that a new bill has been introduced in the House to refashion several hundred years of legal precedent on marriage and divorce. NBD.

And no, this one isn’t from the Custody Dialogue Group.

According to an attorney with knowledge of the bill, HF 1348, is the product of the professionals at the Erickson Mediation Institute working in conjunction with the Family Innocence Project and some help from Hennepin County Judge Bruce Peterson.  The University of Minnesota’s Prof. Bill Doherty also spoke with MPR’s Kerri Miller about the bill yesterday. The bill being sponsored by St Paul Representative John Lesch (DFL), St. Paul Representative Alice Hausman (DFL), and Edina Representative Ron Erhardt (DFL).

Reduced to its fundamentals, HF 1348 aims to remove divorce and other family law matters from our state courts by creating a Cooperative Private Divorce Program akin to the administrative systems in place in Scandinavia and other parts of Europe. (France is considering something similar to streamline their already very streamlined process.)

As I read the bill, divorcing couples would be able to finalize their divorce online simply by completing an “Intent to Divorce” form followed (between 90 and 730 days later) by a second form called a “Declaration of Divorce.”

The Declaration of Divorce can (but need not) include agreements relative to property division, child support, spousal maintenance, and even custody and parenting time, and is intended to be fully enforceable by a court (but also fully modifiable by the parties–by agreement of course).

Upon receipt of a couples’ Declaration of Divorce, the Bureau of Mediation Services (the agency charged with administering the program) would issue a “Certificate of Marital Termination” “completely terminat[ing] the marital status of the participants.” However, the Declaration of Divorce remains on file, and can be accessed, enforced, modified and amended as appropriate.

So taking this bill at face value, it makes divorce cheap, easy, fully electronic, and over and done with in only three months.

What’s not to like?

This is where my grandmother would offer to sell you some swampland in Florida.

Leaving Behind the Lawsuit Mentality

While I’m (deeply) skeptical of this bill, I don’t want to oversell the point, because I’m also sympathetic to the motivations behind it.  Divorce isn’t just another lawsuit, and we shouldn’t treat it that way.

Cheap. Non-adversarial. Private. Flexible. Transparent. Equitable.

These are laudable goals for any divorcing couple, and the family court system should do everything possible to promote them.  I’m firmly convinced that families are best served when they’re empowered to craft their own solutions in a private, emotionally sensitive process that honors their values first and foremost rather than legislatively imposed standards.

I can think of a lot of reasons we should be a fan of this kind of divorce, whether we label it “cooperative,” “collaborative” or “conscious uncoupling.”

But in trying to put these goals into practice, this bill takes the additional step of “getting the courts out of divorce” and replacing them with an administrative agency.

(As an aside the concept of a multi-disciplinary model of mediation isn’t new.  The Institute for the Advancement of the American Legal System at the University of Denver has developed an Honoring Families Initiative that aims to provide integrated counseling, mediation, and legal services for divorcing couples. But nothing in this model requires states to adopt an administrative system for entering divorce decrees.)

One Solution’s Search for a Problem.

And this is where I start scratching my head.  Because I’m not sure why we need this bill.

If the goal is privacy, our rules could be amended to provide divorces with the same privacy protections that other family law files (like paternity and domestic abuse cases) already enjoy.

If the goal is greater deference to couples’ agreements, we could pass legislation (similar to laws already in effect in Texas) to that requires Courts to accept mediated agreements absent cases of family violence (or perhaps child endangerment). (See In re Stephanie Lee, 11-0732,  (Sept. 27, 2013) and my post on the case here.)

If the goal is reduced conflict, let’s allocate more money to family court and mediation services to make these processes available to more couples, and to develop centers along the lines of the IAALS initiative mentioned above.

Introduce the bills.

Have a debate.

But we don’t come closer to achieving any of these goals by imagining that Courts are the problem, and creating a new administrative system to circumvent them.

Four Reasons You May Not Want to Outsource Your Divorce?

Which brings me to my final point. Because Minnesota’s Proposed Cooperative Private Divorce program isn’t just a questionable policy choice, it’s an actively bad law.

For Starters, it’s Unconstitutional.

That’s right. Unconstitutional. Think back to 10th grade civics class, and our country’s centuries-long love affair with separation of powers. You remember: three co-equal branches of government, each with its own, unique powers: executive, legislative, and judicial.

While the doctrine becomes harder and harder to define as government grows, what’s still clear is that one branch of government (say, the legislature) can’t transfer the powers of another branch of government (say, the judiciary) to the third branch of government (the executive).  But that’s exactly what this bill tries to do. In fact, that’s the entire point: getting the courts out of divorce.”

If there’s any doubt that our Supreme Court would overturn this bill, case law provides an instructive example.

In Holmberg v. Holmberg, 588 N.W.2d 720 (1999), the Minnesota Supreme Court overturned a law creating an administrative child support process, independent of the judicial branch, reasoning:

Family dissolution remedies, including remedies in child support decisions, rely on the district court’s inherent equitable powers. Thus, cases involving family law fall within the district court’s original jurisdiction. The legislature’s delegation of an area of the district court’s original jurisdiction calls for this court’s close scrutiny

With its creation of the administrative process, the legislature has delegated to an executive agency the district court’s inherent equitable power. This delegation infringes on the district court’s original jurisdiction.

The analysis in Holmberg doesn’t pull any punches: under the Minnesota Constitution, the legislature cannot delegate to an executive agency powers that are within the district court’s inherent equitable jurisdiction. That includes divorce.

I’d be interested to hear from the bill’s proponents how they intend to jump the Holmberg-hurdle.  Or maybe the thought is to win the fight in the legislature and save the court battle for another day. Either way: bad law.

It Lacks Interstate Enforceability.

If straight-up unconstitutionality isn’t enough, the bill also creates nightmares for couples that may move out of state.

When a couple chooses to get divorced, they want some assurance that they’re actually divorced.  But the Certificate of Marital Termination isn’t the equivalent of a divorce, despite this bill’s insistence to the contrary.

I hate to re-live high school more than once per post, but we need to go back to 10th grade civics one more time.  And not the interesting stuff either: full faith and credit.

Under our federal constitution, the public acts, records, and judicial proceedings of one state are entitled to full faith and credit in all other states.

This is a big deal for families.  It means that if you’re divorced in one state, you’re divorced in every state. Just because you move to Wisconsin doesn’t mean a court can disregard the terms of your property division, maintenance award, child support obligation, or custody arrangement.

But full faith and credit doesn’t apply equally to all public acts. Your Minnesota driver’s license isn’t entitled to full faith and credit in Wisconsin (though it may be respected anyway for policy reasons). Your Minnesota marriage license isn’t entitled to full faith and credit either.

To summarize a lot of case law in a very short sentence: administrative acts only get full-faith and credit if they’re sufficiently judicial in nature. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966).

Minnesota’s Cooperative Private Divorce Program not only fails to meet this standard, it does so deliberately.

So your Certificate of Marital Termination won’t count for much outside of Minnesota (if it even counts for anything here).

But even if other states agreed to recognize these certificates, that wouldn’t solve our enforcement problems.

Why? Because the laws enacted to help ensure interstate enforcement of custody and support obligations (the Uniform Child Custody Jurisdiction and Enforcement Act and the Uniform Interstate Family Support Act) are all based on enforcing court “orders” not administrative certificates. See 518D.102 and § 518C.101.

To be fair, the bill tries to get around both problems by providing that “the district court shall issue an order confirming the declaration of divorce and certificate of marital termination upon petition by a participant of the cooperative divorce process.”

But wait a minute.

Wasn’t the whole idea to “get the court out of divorce?”

How is an administrative action confirmed by Court order better than just submitting a stipulated order to the Court in the first place.

I’m stumped.

It Lacks Meaningful Oversight.

If unconstitutionality and unenforceability together don’t doom this bill, the Cooperative Private Divorce program lays out the welcome mat for fraud and overreaching in divorces.

Minnesota has a long history of judicial oversight of family law, underpinned by the belief that “the trial court stands in place and on behalf of the citizens of the state as a third party to dissolution actions. It has a duty to protect the interests of both parties and all the citizens of the state to ensure that the stipulation is fair and reasonable to all.” Karon v. Karon, 435 N.W.2d 501 (Minn. 1989).

While this reasoning undoubtedly has some paternalistic overtones, it’s also intended to prevent divorces from becoming overreaching or even fraudulent to the detriment of  one spouse or the citizens of the state. (By leaving one spouse or the children dependent on public assistance for example.)

But the Cooperative Private Divorce program shelters overreaching spouses from responsibility or scrutiny, leaving Minnesota tax payers on the hook.

It’s a Recipe for Disaster.

But my biggest objection isn’t about cases or the constitution, it’s common sense.

Imagine the following hypothetical:

Judy and Johnny marry at 18 in an act of youthful rebellion.  Six months later someone new is trending on Judy’s Twitter feed, and it’s not Johnny. So they submit their intention to divorce, they submit their declaration, and that’s it. They’re divorced. But because they’re 18, they don’t bother to resolve any other issues (property, spousal maintenance, etc.), so under the law all of those items are reserved.

20 years later, Johnny’s made it big and is getting divorced a second time, this time from his wife of 15 years (bad luck, I know). Judy gets wind at their high school reunion and realizes that she still has a viable claim for spousal maintenance and property.  So Judy brings an action to resolve all those issues. The results are predictably horrifying.

Think it can’t happen? It will. In fact, I’d bet money on it.

(If you don’t believe me, you may want to check-out Wyatt v. Vince from the UK’s Supreme Court permitting and ex-Wife to return to court for financial assistance 20 years after the divorce.)

Nobody wants to be the inspiration for a question on my family law exam, but that’s just what Johnny is.

Time for a Change.

In some ways the proponents of this bill are right. It’s time for a change. It’s time for lawyers and legislators to step-up and help make the process of divorce more respectful, less antagonistic, and more deferential to the values of individual couples.

But creating an administrative legal quagmire does exactly none of those things.

Let’s hope this bill meets an early end.

(Update: I had the opportunity to speak with the Star Tribune about these bills, here: “‘Private Divorce’ Measure Would Take Split-Ups Out of Minnesota Court Rooms.” Though note that the article mistakenly references the U.S. Constitution rather than the Minnesota Constitution.)

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