A Statutory Proposal to Remove Divorce from the Courtroom

Over the past decade the divorce rate in the United States has more than doubled. Although the reasons suggested for this rapid rise are varied, the resultant impact on the judicial system is clear: divorce cases greatly overburden the courts. Presently they account for about one half of all civil cases filed. Unlike most other civil suits of which nearly half are dismissed or settled, divorce requires a court decree for relief unless the parties reconcile and abandon their suits. In addition to the actual granting of the divorce decree, court time is needed for pre-divorce motions for temporary support and custody and for post-divorce motions for modification or enforcement of support or alimony. It might be argued that the burden of divorce cases on the court is overstated since the majority of divorces are uncontested with the substantive issues, such as property division, alimony, child custody and support, settled out of court. In such cases only the actual granting of the decree requires court time. Even uncontested divorces, however, generally require approximately five minutes court time each, and not all divorces are uncontested. As the divorce rate continues to rise, divorce cases will require a greater and more disproportionate share of court time. The present system of divorce also places unnecessary burdens on the parties. The adversary system is ill-suited to the needs of those involved in terminating a marriage. Clearly, reform in divorce law is essential to promote efficient use of valuable court time and to permit prompt resolution of the difficult problems created by divorce. This article will examine the current alternatives to adversarial divorce proceedings as well as suggestions by the private sector. It will discuss whether these solutions are effective in eliminating the burdens of traditional divorce proceedings. In conclusion it will propose procedural legislation which would remove divorce from the courtroom in order to minimize the burdens on the parties and the courts.