The Associated Press recently reported that France is considering a plan to allow divorces by mutual consent to proceed without a judge, simplifying the process. Under the new proposal, a court clerk, rather than a judge, could approve an uncontested divorce.
According to Le Figaro, a French newspaper, approximately 54% of French divorces are uncontested and divorcing couples who have reached an agreement spend approximately only eight (8) minutes before a judge.
Opponents of the new process worry that the proposal will further weaken the institution of marriage, as well as make agreements harder to enforce.
How would such a proposal work domestically? In the District of Columbia, uncontested divorces are currently set before a single judge whose calendar assignment includes hearing all such uncontested hearings. Multiple uncontested divorce hearings are scheduled for the same time and each hearing takes approximately 10 to 15 minutes total, with final Orders issued that same day. During an uncontested divorce hearing, either the court or attorney inquires of the Plaintiff in order to satisfy that the statutory requirements for a divorce have been met. However, the D.C. Code does not specifically require that such testimony be given in open court and could, hypothetically, be offered by affidavit or telephonically without requiring an in-person appearance.
In Maryland, Montgomery County Circuit Court also sets multiple uncontested divorce hearings at the same time before a single judge with each case having approximately 10 minutes before the judge. Such a proposal is not feasible in Maryland at this time, however, given the provisions in the Maryland Code requiring that a judgment granting a divorce or annulment may be entered only upon testimony in person before an examiner or master or in open court and testimony of the required corroborating witness must also be oral.
However, other jurisdictions have already implemented processes and procedures similar to those being considered in France. For example, Virginia permits the granting uncontested divorces based on submission of affidavits when all issues between the parties have been resolved and there are no further issues to be adjudicated by the court.
Although there may be some concern that divorce without a court hearing may further weaken the institution of marriage, such proceedings have significant advantages. For example, a divorce by affidavit saves litigants both the emotional and financial expense associated with having to appear in court. The availability of such proceedings may also promote amicable settlement rather than contentious litigation between couples who have already decided that they want to dissolve their marital relationship. Additionally, removing uncontested hearings from the court’s docket will allow judges to spend more time on more factually and legally complicated situations – cases in which there is no substitute for the judicial system.
In sum, although the use of a clerk, affidavits or a teleconference in lieu of an in-person judicial proceeding may prove to be cost effective and efficient in many cases, the use of any such procedures should not be considered a “one size fits all” solution, and couples considering dissolving their marital relationship should still be given the option of whether they would like to appear before a judge to end their relationship. The freedom to continue to choose how to end such relationship can be empowering for those who have already made the decision that a divorce is the best option for them.