Statistics indicate that the divorce rate in the United States remains strikingly high, at anywhere between 40-50%. Although marriages fail for many reasons, fault is largely irrelevant in divorce in Pennsylvania because of Pennsylvania’s “no-fault” divorce laws. Under Pennsylvania law, most divorces are sought on the basis of “irreconcilable differences” – a vague and blameless term. In other words, if a spouse longer wants to be married, barring unusual circumstances, there are few legal obstacles to securing a divorce.
No-fault divorce laws have become the subject of increasing national scrutiny. This is, in part, because some experts believe that marriage counseling should be mandatory before a divorce will be granted.
Under the Pennsylvania Divorce Code, counseling is not mandatory. Parties must be informed of the availability of counseling and, if requested, provided a list of qualified professionals who can provide such services. If a party requests counseling, the court must require up to a maximum of three counseling sessions. However, in reality, most parties and attorneys in divorce, perhaps unfortunately, gloss over this option. Counseling, however, could possibly initiate attempts at reconciliation or, at the least, provide the parties tools on which they could rely in litigating their divorce to make it a remotely tolerable experience.
In some cases, divorces are so highly contested and the parties so angry that it is difficult to imagine that counseling would not provide some beneficial effects (whether mandatory or not). At a minimum, spouses might learn useful skills regarding how to manage their emotional responses to the circumstances of the divorce. It might also allow for the parties to develop the skills necessary to separate emotional issues from practical ones, which becomes highly relevant when making decisions about how to divide personal assets, debts and, most importantly, co-parent children. So often divorcing spouses’ irrational entrenchment in certain legal positions is the result of unresolved hostility and anger. If counseling could assist the parties’ willingness to engage in more productive negotiations in resolving their divorce, it would inevitably save the parties’ attorney fees, time and familial anguish.
A new type of therapy, intended to address these issues before a complaint for divorce is filed, is called “discernment counseling.” Bill Doherty, a professor in the family social science department at the University of Minnesota, created this therapy. Discernment counseling aims to help struggling couples decide whether to divorce or remain married and was recently the subject of an article published in the Wall Street Journal. Dr. Doherty found that, in most divorcing couples, there is a spouse who is “leaning in” (wanting to stay in the marriage) and one that is “leaning out” (wanting out of the marriage). The therapy is focused on assisting the “leaning out spouse” to determine whether or not leaving the marriage is the correct choice. The therapy also assists the “leaning in” spouse to develop and utilize effective coping skills in accepting divorce as an outcome. The approach seems to focus on each spouse’s ability to identify and acknowledge the feelings that each has regarding the marital problems, effectively process the feelings, and effectively manage such feelings/circumstances with his or her partner.
With his assistance, the couple determines whether they wish to remain in the same state of relationship, divorce, or attempt a trial reconciliation period with the assistance of therapy. Interestingly, the article reports that Dr. Doherty, in working with 25 couples over five sessions, 40% decided to attempt reconciliation. If divorce, however, is the outcome, the couple attempts to navigate the separation and divorce process in the most amicable way, resulting in the least collateral damage.
Dr. Doherty’s discernment counseling sounds rather simple, yet is a unique method to approach a dissolving marriage situation. Rather than solution-oriented and union-focused, it emphasizes acceptance, responsibility and reasonable reactions to, most likely, an unfortunate set of circumstances. His approach may be an attractive one in light of the status of marriage today.