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Aiming at Idaho's "easy" divorce law

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Divorce is a simple truth in modern-day society: For whatever reason, once blissfully wedded couples often find themselves looking for a way out.

In Idaho, that process is relatively easy thanks to the state's no-fault divorce law, allowing one spouse to sue for divorce without the express agreement of the other. That simple fact has raised the ire of some of the state's more conservative residents who believe that it should be harder to end a marriage.

"We believe divorce is a serious problem in Idaho and merits public political action to reduce the divorce rate," said Bryan Fischer, executive director of the Idaho Family Values Alliance.

Fischer has been joined by fellow uber conservative Rep. Steven Thayn, R-Emmett, who touted the virtues of mutual-consent divorce as part of his Family Task Force (BW, News, Family First, Nov. 21, 2007).

Thayn's controversial ideas, including finding ways to keep women at home with children, failed to gain support—even from his fellow committee members. The task force's final report did not include any proposed legislation, and House members chastised Thayn for wasting taxpayer money and failing to listen to others.

Sen. Elliot Werk, D-Boise, said the Senate didn't want anything to do with the task force, and that House leadership refused to promote any of Thayn's ideas.

"We recognize the divorce rate is too high, and we'd like it to be less, but [it's not right to try] to legislate the actions of the citizens of the state in how they conduct their personal lives," Werk said. "It's not the business of government to throw up roadblocks in people's lives."

Fischer points to statistics that show a higher divorce rate in Idaho than the national average. He believes the state's no-fault divorce laws are largely responsible for an increasing divorce rate.

According to the Division of Vital Statistics at the National Center for Health Statistics, a department in the Centers for Disease Control, Idaho's divorce rate fell between 1997 and 2004, declining from 6.5 divorces per 1,000 people in 1997 to 5 divorces per 1,000 people in 2004.

Those numbers have held, according to the Idaho Bureau of Vital Records and Health Statistics. In 2006, 7,392 divorces (or 5 per 1,000 people) were granted in Idaho. The rate is slightly higher in Ada County, were 1,853 divorces (or 5.2 per 1,000 people) were granted. According to the U.S. Census Bureau, the national average in 2006 was 3.7 divorces per 1,000 people, the lowest since 1970.

But according to the Idaho Supreme Court, the number of domestic-relation cases, which are predominantly divorces, have incrementally, but steadily, increased over the past decade.

In 1997, 12,392 cases were either opened or reopened in Idaho­—reopened cases are typically adjustments to existing divorce decrees. The number grew to 12,473 in 2002, after several years of see-sawing rates. Cases peaked in 2004 with 15,172 cases opened, but dropped, with 13,324 in 2007.

While every state except New York has no-fault divorce, Fischer and other IFVA members would like to see that changed. In Fischer's ideal world, lawmakers would replace no-fault divorce with mutual consent, in which both parties would have to agree on a divorce before it would be allowed.

"The law, as written, now guarantees a legal victory to someone who wants to break a very important social contract," Fischer said.

"Mutual consent would give the innocent party—the one who wants to keep the marriage together—it would give them some legal protection and give them some bargaining power or leverage," he said.

Fischer believes mutual consent would give the spouse who doesn't want the divorce a power chip, allowing him or her to use the need to agree as a way to get a better deal.

Currently, Idaho is a community-property state, guaranteeing that assets accumulated during a marriage are divided equally.

Under no-fault divorce, one party must swear under oath that irreconcilable differences exist within the marriage. If the other spouse objects, a judge will send the couple to counseling to see if the marriage can be saved.

Irreconcilable differences has become the most common reason stated for the disillusion of a marriage, and can encompass everything from bad habits and financial conflict to religious differences and disagreements over how to raise children, said Boise attorney David Leroy Leroyd.

According to Idaho Code 32-603, a divorce can be granted in cases of adultery, extreme cruelty, willful desertion, willful neglect, habitual intemperance (usually drugs or alcohol), a felony conviction, permanent insanity or irreconcilable differences.

Many of these causes date back to 1864 and 1899, but today, couples rarely cite any cause for divorce other than irreconcilable differences, Leroy said.

A default divorce is granted when neither party objects to the divorce complaint. While many couples say they want a default divorce, Leroy said that's rarely how things turn out.

"There are hundreds of details of unraveling people's lives, especially if children are involved," he said. "There will be something that isn't taken into consideration at first."

Magistrate Judge David Day, one of four judges who deals with divorces in Ada County, said the vast majority of divorces are finalized without going to court.

But if a divorce is contested, couples head before judges like Day, who make decisions based on state law. He frequently sees couples dealing with preliminary matters, including how to handle visitation rights or who gets to stay in the house during the divorce.

Disputing couples are often sent to mediation, in which trained professionals try to help warring spouses find common ground.

While the judge has the final say, Day said they always prefer a couple to work things out themselves because agreements spouses sign off on, rather than are forced into, are more successful.

Leroy, who has worked in the legal world for 37 years, said there are more divorces now than a few decades ago, but said they are not more prevalent in any population group. He has seen divorces between spouses in their 80s to those in their teens.

The typical time it takes to finalize a divorce in Idaho is roughly five months, Leroy said, but added that depending on complexity, it can take anywhere from 20 days to two years.

In Ada county, divorcing parents are sent to parenting classes held by Ada County Court Services called Focus on the Family. Here, parents are taught to not make the children a battleground.

"We really like to help people resolve the issues in ways they can deal with," Day said.

Fischer said he knows a lot of people disagree with him, but he feels making divorce more difficult is worth it, especially for the sake of children.

Fischer still believes that legislation is the place to start, not only as a way to cut down on divorces, but to discourage cohabitation, which he said people are doing because they can't count on the stability of marriage.

"People are increasingly resorting to cohabitation," he said. "It's bad for adults and bad for children."

While Fischer said he doesn't think the climate is right for getting anything changed during this legislative session, he said he's laying the groundwork and hopes to move forward next year.

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