Texas Considers How to Protect Children & Innocent Spouses in Divorce

Yesterday a Texas House Committee heard testimony on two key legislative proposals that would work to protect children and innocent spouses victimized by divorce.  See http://kxan.com/2017/03/08/texas-bill-making-divorce-harder-gets-early-movement/ for the full story.

Here’s one testimony submitted for those hearings:

Texas No Fault Divorce Legislative Proposals –

Testimony of Lynne Marie Kohm, John Brown McCarty Prof of Family Law, Regent University School of Law, family law expert (see https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=183817).

March 8, 2017

No Fault Divorce bills (HB 65 and HB 93) are important considerations for Texas families. 

HB 65 protects a family with minor or disabled children from rushing into a unilateral divorce that may prove harmful to all parties. Requiring a short waiting period of 6 months, this bill essentially strives to protect vulnerable children from unnecessary instability in their lives.  A wise exception is made for the presence of domestic violence in the family. 

The best interest of a child in a marriage dissolution is paramount to any legislative or judicial action for divorce.  When one marriage partner rushes into a divorce without agreeing with the other spouse on aspects that affect the children of that family, they are unwittingly endangering those children.  Numerous scholars have studied the negative effects for children of divorce.  Social science research has found a near universal concern for disrupting children’s family stability with divorce. Children are an investment in the future of Texas, and it should come as no surprise that when a state routinely allows parents to easily and quickly divorce children are directly part of a family breakdown, which has been interpreted almost exclusively in terms of harm to children. 

Children experience physical, mental, and emotion health problems when they endure their parents’ divorce. Children of divorce do less well in school, experience earlier sexual debut, have a higher likelihood for juvenile crime, greater rates of substance abuse, and generally leave home earlier than those from an intact family. For an overview of the numerous social scientific studies that have been designed to measure and assess the harm inflicted on children living outside the ideal married family see Carol Smart, New perspectives on childhood and divorce, at http://journals.sagepub.com/doi/abs/10.1177/0907568203010002001?journalCode=chda.

These facts are so sincerely realized in the State of Texas that current legislation regarding post-divorce requirements already involve a co-parenting program for divorcing or separating parents specifically to reduce the stress of divorce on children, to improve their physical health and reduce visits to the doctor.  It makes sense that a bill favoring a brief 6 month waiting period would foster those same objectives.  HB 65 protects a family with minor or disabled children from rushing into a unilateral divorce that may prove harmful to all parties.

HB 93 repeals insupportability as a ground for divorce in Texas, to protect marriage partners from unilateral abandonment of the marital contract.

Insupportability is a purely one-sided avenue for divorce that nearly always leaves a victim spouse without remedy for damages incurred by that divorce.   This aspect of insupportability creates greater need for increased welfare benefits to divorced women with children who are left largely unsupported by their divorcing husbands.  This effect is exacerbated by Texas’ community property laws and minimal spousal support laws which can leave a victim spouse of either gender without remedy when he or she has detrimentally relied on the marriage for support and financial stability.

Texans will still have numerous avenues for divorce when insupportability is repealed to protect victim spouses.  Marital partners’ remedies for a troubled marriage include numerous fault grounds and bilateral agreements.  Texas law allows for a separation agreement to be entered into between divorcing or separating parties under Texas Family Code Section 7.006. This in itself is a bilateral agreement, protecting the autonomy and interests of each party, a remedy unavailable in Texas’ current grounds of insupportability. These legal remedies for troubled marriages are not only sufficient to protect Texans, but serve to protect innocent Texans from being taken advantage of by the unilateral (and remediless) decision of a spouse to recklessly depart from marital duty. HB 93 repeals insupportability to protect marriage partners from unilateral abandonment of the marital contract.