Bill Now Carrying Divorce Changes Warrants Scrutiny

Details: 27 May 2011

State Senator Paul Schumacher from Columbus recently used a traditional legislative metaphor to make an excellent point about an amendment to, and maneuver involving, a bill being given first-round consideration by the full Legislature. He compared LB 669 to a Christmas tree, upon which ornaments are hung.

In its original form, LB 669, which was designated a Speaker’s priority bill, proposed to modify policy regarding the sealing of records in the juvenile justice system. But that purpose was accomplished with an amendment to another, earlier considered bill, LB 463, which was passed by the Legislature and signed into law by the Governor.

Using LB 463 to accomplish the purpose left LB 669 as a shell at the first stage of floor consideration. So, the Judiciary Committee, chaired by Omaha Senator Brad Ashford, decided to use the shell as a "Christmas tree," upon which to hang as ornaments the provisions of four other bills from the committee’s jurisdiction. The "ornaments" proposed by AM1342—an amendment of 21 pages and 24 sections—included LBs 339, 349, 476 and 451, none of which had been designated as priority legislation and none of which had been advanced to the full Legislature by the committee.

LB 451 is described in its originating statement of intent as offering seven provisions to enhance judicial flexibility. In particular, it was one of those provisions that prompted Senator Schumacher to perceptively describe it as the "bulb" (being hung on the "tree") that "lights up the room." His comment affirmed one made by Sen. Tony Fulton: that what was taking place on LB 669 was not an insignificant matter.

What was originally section 12 of LB 451 became section 23 of AM1342 to LB 669. It proposes to modify current law regarding Nebraska’s "no-fault" system for dissolving marriages. Pursuant to statute 42-361, dissolution requires that a hearing be conducted in open court with oral testimony (or depositions) of witnesses as evidence. Pleadings alone are insufficient.

Section 23 of AM1342, nee section 12 of LB 451, would add a new subsection that would waive the hearing requirement given certain conditions: that both husband and wife agree to the waiver; that both husband and wife certify in writing that the marriage is irretrievably broken; that just one certifies that he or she has made every reasonable effort to effect reconciliation; that all required documents have been filed; and that both husband and wife have signed an agreement that resolves all issues (e.g., spousal support, child custody, support and visitation and asset allocation).

The purported justification for allowing divorce decrees to be issued without hearings is saving court time and expense. That would be accomplished by making some divorces easier, quicker and more convenient for the judges, the parties and the attorneys. That’s apparently why the Nebraska State Bar Association is lobbying for the changes.

The cautions and reservations expressed by Senators Fulton and Schumacher notwithstanding, AM 1342 was adopted on a 28-0 vote and the "Christmas tree" on which it was hung, LB 669, advanced to the second round of consideration.

Whether the changes that would be made by AM1342 are sound public policy is debatable. If both parties agree that the marriage is irretrievably broken and there are no issues to resolve—as Sen. Schumacher observed: no children, no money (assets) to speak of, and no love—then reducing workloads and costs by eliminating the court appearance is intuitively sensible. Still, some unresolved questions loom large.

If both parties have to certify that the marriage is irretrievably broken, then why does only one party have to certify that he or she has made "every reasonable effort to effect reconciliation"? Section 42-360 of current law requires that "No decree shall be entered unless the court finds that every reasonable effort to effect reconciliation has been made." Is certification by one party, in the absence of a hearing, enough evidence to satisfy that standard?

Secondly, Section 42-363 of current and longstanding law requires that "no suit for divorce may be heard or tried until 60 days after perfection of service." It sets a pre-decree waiting period, a stabilization period, to provide the parties time to contemplate the myriad impact of the action and to ensure that no advantage is taken of either party.

But if there is no hearing, because it is being waived, and no dispute to be "tried," is the waiting period also waived as a byproduct? Is Section 42-363 circumvented? Could the divorce be granted merely on the basis of the pleadings? Are those intended consequences of the proposed change? Is it the Judiciary Committee’s intent to facilitate "quickie divorces" in Nebraska?

Unfortunately, the first-round process, as affected by the way AM1342 was handled, didn’t allow much opportunity to examine those issues. Senators Fulton and Schumacher—hopefully they would be joined by others—could cause that examination to happen during the second round of consideration. The policy issues are substantive and significant enough to warrant that.

And finally…..

The Legislature’s special Redistricting Committee has been facing the challenges of realigning elective-office boundaries as a result of 2010 census numbers. This includes both the state legislative districts and the three Congressional Districts. The districts have to be generally equal in terms of population. The definitive tilt to the eastern end of the state—primarily Douglas, Sarpy, Cass and Lancaster counties—is evident by a couple of the committee’s tentatively proposed maps. For example, think about this: Alliance and Falls City would both be in the Third Congressional District. And, Legislative District 49 would shift from the western end of the state to Sarpy County.