Minnesota Lawyer
In its last act Tuesday before a budget agreement could trigger the sprint toward a final bill, the joint House-Senate Public Safety/Judiciary conference committee took on the thorny subject of do-it-yourself divorce.
A cooperative divorce measure from Rep. John Lesch, chair of the House Judiciary committee, first took the form of House File 1115. It allows a couple to get a certificate of marital dissolution through the Bureau of Mediation Services, without involving lawyers or the courts.
The idea is to spare splitting couples the expense of counsel and the agony of adversarial legal dramatics, Lesch has often said.
The measure is opposed by battered women’s advocates and by the Minnesota State Bar Association’s family law and real property sections. They worry it could put abusive partners in the driver’s seat while depriving both spouses of competent counsel and judicial oversight.
But Lesch, himself an attorney, says the current divorce process needlessly pits couples against one another. Were his option available, he said, couples could set rancor aside and calmly work out agreements themselves.
By contrast, lawyers tend to pit divorcing spouses against one another to wrangle the best deal for the client, Lesch said. Such was his personal experience with a rough divorce a decade ago, he has said.
“Around the corner there’s another motion saying that you’re a bad parent,” Lesch told the committee Tuesday. “There’s another motion to say that you’re a bad spouse in one way or another.”
Both sides in almost all divorces case feel aggrieved to some degree, Lesch added. “So it’s really easy to bait a person to go down the nasty route,” he said. “It’s an industry.”
The bill sparked an angry debate among Democrats on April 29, when it was heard on the House floor during consideration of the House public safety omnibus budget bill.
Assistant House Majority Leader Jamie Becker-Finn, DFL-Roseville, tried unsuccessfully to strip it out of that bill. Her challenge lost, 63-68, partly because GOP House Minority Leader Kurt Daudt, R-Crown, urged Republicans to join the relative handful of DFLers who backed it.
However, in the conference committee’s final pre-budget-numbers hearing last week, committee members from both parties remained silent.
‘Pretty simple’
Former Rep. Andy Dawkins, DFL-St. Paul, has worked many divorce cases over 30 years as an attorney. He has been trying to get cooperative divorce reform passed since 2014 and he spoke on its behalf before Tuesday’s hearing.
“The bill is pretty simple,” he said. “It just says there should be two classes of divorce. Those with controversy and those without.”
He noted that when he and former Sen. Ellen Anderson, DFL-St. Paul, divorced last year, they fit the latter category. They filled out an online petition by themselves and got a judge to sign off on it within a week, he said.
That might sound like an advertisement for his opponents’ argument—there are already alternatives available to nasty courtroom divorces. But Dawkins said the process he Anderson went through included no form of spousal abuse screening. The Lesch bill does, he said.
It also includes a 90-day waiting period to finalize a divorce from the time a declaration of intent is filed, giving couples a last chance to patch things up. And before a marital dissolution certificate gets issued, parents of minor children would have to attend a four-hour parenting education program.
Dawkins predicted that, if the bill passes, half of divorcing couples would pursue the option.
That could save the courts $404 per case—his $754 estimate of each case’s total court cost, minus the $350 user fee paid by the couple. In 2014, the year he started working on the reform, there were 15,628 family law divorce filings in Minnesota.
“There’s $3 million a year less that the judiciary budget is going need to have to do divorce cases in the state of Minnesota,” Dawkins said.
The bill permits cooperative divorce participants to go to court at any point prior to the dissolution certificate’s issuance. It also includes a notice to couples that repeatedly urges spouses to educate themselves on complex legal issues dealing with real estate, child support and other matters.
The bill offers further guidance to abused mates, telling them to avoid cooperative divorce and seek a lawyer’s help if they have been threatened or intimidated, or if they have doubts that their spouse would sign an agreement that is in the whole family’s best interests.
The measure was opposed by Joel Carlson, chief lobbyist for the Minnesota Association for Justice, who testified on behalf of the Minnesota Coalition for Battered Women.
Carlson questioned the need for the bill. He said that 90 percent of Minnesota divorces already involve no court intervention, except for judicial review of the final divorce agreement.
Lesch agreed with the figure, but disputed its relevance. “The suggestion that 90 percent of what’s going on right now is agreed to without conflict—everyone in this room knows that’s not true,” he said.
Carlson also said he was disturbed by a passage in the bill that describes the two key ways the cooperative process differs from standard divorce.
“First, the two of you have total control over your divorce and no one will oversee or scrutinize the decisions you make,” it says. “Second, it is a completely private process.”
“Now think about that from the eyes of a battered woman—isolation, not hearing from anybody, secrecy,” Carlson said. “Those are the hallmarks of family abuse. These are not benefits when you’re looking at this process as a battered woman.”
Dawkins testified that even with judicial oversight, plenty of divorces already are “brow-beaten-into” affairs.
“Should that outweigh the large number of cases that are going to have a better outcome for the whole family?” he said. “This is a pro-family bill.”
State bar’s concerns
Bryan Lake, head of government relations for the Minnesota State Bar Association, said the state bar agrees with the battered-women’s advocates about the bill’s dangers.
But it also has other concerns, Lake said, not least of which is a lack of judicial oversight. “If this proposal becomes law, these agreements would just be filed with the Bureau of Mediation,” he said. “No one would ever see them. There would be no oversight, no nothing.”
He said the bill lacks provisions for enforcing child support or custody agreements. “Because if you don’t have a court order,” he said, “there is nothing for the court to enforce.”
It also places no limits on couples’ ability to go back to court to reopen real estate disputes, post-divorce. If a lawyer-less agreement is filed without a judge’s sign-off, and it contains incorrect descriptions of real estate holdings, a future lawsuit is a near certainty, he suggested.
“Every attorney that I have spoken to thinks that this will lead to more work for them, not less,” Lake said.
The bill faces a steep climb to passage. Rep. Carlos Mariani, DFL-St. Paul, said in an interview last week he is not sure it has enough conference committee votes, even among DFL House members. A two-thirds majority from both chambers is required for conference committee passage.
Even if it survives its DFL test, the measure is in trouble in the GOP-led Senate.
Sen. Warren Limmer, R-Maple Grove, is the conference committee’s Senate co-chair and he, too, has doubts about the Lesch measure. He said he is unsure what it offers to couples that is not now available through alternative dispute resolution.
“The more I understand it,” Limmer said, “I have more and more questions.”
