Louisiana has sought for decades to stem the tide of the so-called divorce epidemic, from enacting the nation's first "covenant marriage" laws to requiring couples to undergo a lengthy "cooling-off" period before officially calling it quits.
Even the most conservative lawmakers acknowledge that some marriages cannot — and perhaps should not — be saved. But they insist the state has a vested interest in limiting the prevalence of divorce, particularly when children are involved, given the host of societal ills associated with broken homes.
"Many people think it's not the government's business whether you're married or not," said Michelle Ghetti, a professor at the Southern University Law Center. "I would argue that, given the interest the government has in the economy, incarceration and education, it is most certainly the government's business, especially if we're paying taxes for it."
Now the Legislature is considering a softening of its traditional stance toward divorce — a measure that would undo a 2006 law that gave Louisiana one of the longest mandatory waiting periods in the country. If passed, the legislation would reduce the cooling-off period for a no-fault divorce from a year to six months for couples with minor children.
House Bill 136 was advanced in committee last week and is scheduled for debate on the House floor on Tuesday.
The measure has reignited debate in Baton Rouge over the state's role in family life.
Conservative groups like the Louisiana Family Forum have assailed the bill as "dangerous and detrimental," insisting that longer waiting periods prevent "unnecessary" divorces and protect children. "The remedy of shortening the dissolution period is a terrible thought," Gene Mills, the group's president, said last week.
But the bill's sponsor, Rep. Patrick Jefferson, D-Homer, said the state should not stand in the way of couples who have decided to part ways, adding that a prolonged waiting period tends to heighten the acrimony in a dissolving marriage.
His pitch to the House Committee on Civil Law and Procedure last week echoed the common refrain that lawmakers legislate morality at their own peril.
"The old adage goes you can't keep that which doesn't want to be kept," Jefferson said. "We live in a fallen world. Perfection does not exist."
With its deeply religious heritage, Louisiana has adopted some of the most conservative divorce laws in the country. The state already is unlike most others in that it requires even married couples without children to live apart for six months before a no-fault divorce can become final. Immediate divorces are granted only in cases of adultery, domestic violence or when a spouse is convicted of a felony and sentenced to prison.
On a close vote Tuesday, a Louisiana House committee advanced legislation to shorten the wai…
"Abuse was not even a ground for immediate divorce in Louisiana until two years ago," said Andrea Carroll, an LSU law professor.
It was not until 1990 that the Legislature removed legal separation as a prerequisite of divorce, making it the last state to eliminate that requirement.
In 1997, Louisiana made national headlines when it became the first state to enact a covenant marriage law, affording couples the option to choose between a traditional and a covenant marriage. The latter, which remains exceedingly uncommon, requires a couple to seek counseling and, in most cases, live apart for two years before their divorce can be made final.
Louisiana, like every other state, allows for what is known as no-fault divorce in traditional marriages, meaning the parties are no longer required to prove one spouse committed adultery or some other act deemed ruinous to the relationship. Fault once was a decisive factor not only in obtaining a divorce but also in the division of property and the calculation of alimony.
In 2006, lawmakers passed a bill requiring married couples with minor children to live apart for 365 days before they may be legally divorced, an increase from the six-month period previously in place.
The goal was to reduce the divorce rate. But rather than relying on statistics, that bill's sponsor, the late Rep. Ernie Alexander, was "shooting in the dark" and "hunching it out," said Randy Trahan, an LSU law professor who opposes a reduction in the cooling-off period.
"There was no social science data to suggest his hunch was correct at the time, but there is now," Trahan said, citing a 2011 study. "The longer the waiting period, the lower the divorce rate. The shorter the waiting period, the higher the divorce rate."
Proponents of HB136 counter that a 12-month waiting period has failed to encourage reconciliation and merely deepens the estrangement between spouses. Having to wait a year before divorcing only increases conflict and protracts litigation, said Carroll, who called the 2006 law a failed experiment.
"We're at the point where now we need to do something about the unintended consequences of that 2006 change," Carroll said. "It's become about lawyers and filings and money and spousal support and not really about kids."
"Kids are harmed by divorce," she added, "but what they're most harmed by is the level of conflict between the parents."
The proposed law has the backing of several family law judges and practitioners around the state, who said that, for many couples, appearing in court and filing for divorce is often a last resort.
"Having to wait a whole year makes it more contentious, and the parties are not able to move forward with whatever life changes they need to make," Judge Bernadette D'Souza, of Orleans Parish Civil District Court, said in an interview.
Were the waiting period shortened to six months, D'Souza said, "children could then adjust to the change of their environment more quickly, rather than having to drag it out for over a year."
Trahan, however, said research has shown that many couples become amenable to reconciliation several months into the process.
Ghetti, the Southern University professor, said the only legal benefit of obtaining a divorce is the ability to remarry. Several states that have shorter cooling-off periods than Louisiana are stricter with this privilege, requiring newly divorced people to wait for up to a year before getting hitched again.
That's a good idea, in Ghetti's view. "The sooner you jump into a marriage," she said, "there is an increase in the chance that the second marriage is going to fail."
Louisiana's divorce rate has fallen over the past 15 years, as has the national rate, in part because fewer people are tying the knot in the first place.
Figures released last year by the National Center for Family & Marriage Research put the state's divorce rate in the middle of the pack compared with other states, raising questions about the efficacy of the roadblocks the state has erected around divorce.
Carroll, who pitched HB136 last week on behalf of the Louisiana State Law Institute, noted in an email that all Southern states have seen a steadily declining divorce rate over the past 10 years and that each of those states has a significantly shorter waiting period than Louisiana.
"Divorce rates are going down everywhere," she wrote, "but those states didn't experience greater declines in the divorce rate than did Louisiana, indicating that declining divorce rates are a result of factors other than the waiting period."