Additional commentary by Timothy Horrigan; August 7, 2010
HB 1510 was one of the weirder bills to be introduced in 2010. It would have banned no-fault divorce for couples with minor children. The prime sponsor was Gary Hopper, whom I later worked with on the House Address hearings, and the initimable Bill O'Brien also played a big role. The basic goal, reducing the number of "broken familes" was a good one, but this bill would have just made things worse. Couples would be reluctant to get married at all, and if they did marry and it didn't work out, one of them would have had to be the bad guy in a fault divorce.
One ironic detail of the hearing was that all the self-appointed experts who came to address the Children & Family Law committee were middle-aged men, myself included. (Even Cornerstone Policy Research's Kevin Smith is 40-ish.) This detail is ironic because divorce with children is an issue which primarily effects younger people, and women more than men (since women are more likely to be custodial parents.)
Rep. Timothy Horrigan (Strafford #7); January 26, 2010
I recently learned a lot about divorce while cosponsoring HB1402, which would repeal the criminal penalty for adultery. (I have been fortunate in my personal experience with divorce: my ex and I parted amicably. Things were helped along by the fact that we had no children and very little joint property.) I have also recently learned more about the problems with our family-law system while serving on an ad-hoc House redress caucus.
Divorce is never easy for the partners or their children— and the poisonous atmosphere surrounding the family-law system makes it even harder for everyone concerned. But this bill just makes the atmosphere that much worse.
The intent of HB1510 is to prevent parents from divorcing. This is discriminatory and a gross affront to personal liberty— but it also doesn't do the children any good. Divorce never happens in a vacuum: it is only the unhappy marriages which end in divorce. This bill tries to force children to live with unhappy parents who don't want to be married to each other: that is much worse than living in a one-parent household. It is even worse than growing up as the object of one of today's elaborate "co-parenting" arrangements which often tend to be designed with the parents' egos in mind rather than the children's well-being. (These arrangements are cobbled together by parents and courts who evidently take the Biblical story in 1 Kings 3 about King Solomon too literally: unlike the State of New Hampshire, King Solomon did not actually try to cut the baby in half.)
Fault divorce is an adversarial procedure which is currently used very seldom. About 50 fault divorces are granted each year in New Hampshire, compared to about 5000 no-fault divorces. Courts rarely if ever deny a fault divorce, since it is virtually impossible to force two people to be married when one (or both) of them don't want to be married.
Unhappily married couples would rarely if ever respond to the changes in HB1510 by suddenly becoming happily married. Some couples might agree to be unhappily married— but most would bypass HB1510 by moving out of state or by agreeing to let one party be the bad guy. The latter strategy has several serious drawbacks. It requires at least one party to lie to the court, which is technically a crime called "perjury," and which also complicates the mediation process. It requires one party to place herself at a severe disadvantage in the divorce negotiations, after she agrees to be the bad guy and her spouse gets to be the good guy. Finally, a fault divorce can be granted only when exactly one partner is at fault. Quite often, both partners are at fault. In such a case, the two partners would be forced to continue being married to each other, which may be poetic justice but which is not good for the children.
A technical issue I would also like to mention is: this bill would, as I read it, apply whenever one or both partners have children. There is (evidently) no exception for a case where the partners have children and/or stepchildren who are under someone else's custody. There are a significant number of cases where couples would be forced to stay together for the sake of children who weren't actually living with them. A related technical issue is that the bill makes no provision for couples who are guardians of children who they have not adopted.
HB 1501 was killed on March 18, 2010 by a 248-81 vote. The 81 voters on the losing side were all Republicans.
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