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America Makes It too Hard and Dangerous to Get Divorced

8 minute read
Feinglos, MPP, is the founder of Grieve Leave, a community and platform that inspires grievers to intentionally take time to process the feelings that come with loss. Grieve Leave has been featured in Newsweek, ABC, and Elle. Laurenzi is a writer and journalist who covers grief, criminal justice, and systems that impact mental health in America

Of the almost 700,000 divorces in the United States each year, 70% of them are initiated by women. In 2021, one of us (Rebecca) became one of those women when she sought a divorce in her home state of North Carolina. But she was surprised to learn that before she could even file, she needed to wait a full year first, as North Carolina is one of a handful of states that mandates a separation period before couples are allowed to file for divorce. Although she was sure of her decision, Rebecca couldn’t do anything but count down the days on the required clock—and stay legally married.

As a former state policy advisor and an investigative journalist, we teamed up to better understand the requirements that can prevent people from leaving unhappy marriages. Together, we researched state-by-state divorce policies and interviewed leaders in advocacy and law in an effort to make information more accessible in what is an intentionally complicated system. What we found was striking: Divorce in the U.S. is governed by an arbitrary constellation of policies that impede the freedom to end a marriage and have a disproportionately harmful impact on women. And as confusing and inconvenient as these laws were for Rebecca, the impact they can have on women in financially unstable or violent relationships is nothing short of devastating. Policies that make people wait to get divorced are paternalistic at best, and dangerous at worst.

Rebecca lives in one of just seven states that require couples to live in separate households before a spouse can file for divorce. North Carolina and South Carolina each require mandatory separation periods of one year, while Delaware, Louisiana, Montana, Vermont, and Virginia mandate a period of six months. And those are just the states that impose pre-filing waiting periods: 35 states require a “cooling-off” period where couples must wait a minimum amount of time after filing for their divorce for it to be finalized. In states like Florida, West Virginia, and Wyoming, that wait can be as brief as 20 days. But if you’re trying to get divorced in Massachusetts, you must wait at least 300 days from when you file for divorce. And, if you’re really unlucky, you might live in a state that requires both a separation period and a cooling-off period.

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These required waiting periods can create dangerous situations for the people stuck in them. “The longer it takes to get that court decree, the longer the couple is navigating around the system and having to resolve things for themselves,” Amy Barasch, the Executive Director of Her Justice, a New York-based nonprofit that provides legal services to women in need, told us. “Usually the person for whom that’s the most challenging is the partner who has less power, less money, and is probably more involved in raising the children.” In many heterosexual households, that partner is often the woman.

Read More: The Gift I Gave Myself After My Divorce

Divorce proceedings establish parameters for dividing joint marital assets and responsibilities, like co-parenting. But for couples divorcing in a state with a required separation period, they have six months to a year of marital limbo: while they are required to live apart but stay legally married, the couple is on their own during that time to navigate the ambiguity of finances and other roles that had been shared. This makes women, in particular, vulnerable to exploitation, as only 30% of wives in dual-income homes earn more than their husbands, and the earning penalty for mothers is about $16,000 each year. In states that require a separation period to divorce, there is nothing to stop, say, one spouse from draining a joint bank account or selling marital property amidst a hostile relationship breakdown, all while still legally married.

These complicated laws are a holdover of a fraught American tradition: to make divorce as difficult as possible. Until the 1950s, divorce cases were tried in the traditional legal system that required one spouse to have wronged the other under a specific set of “legitimate” reasons to end the marriage—like adultery or extreme cruelty. The petitioning spouse had to prove fault, a burden that required presenting extensive and often gender-biased evidence to the court. As divorce proceedings began to shift to new, statewide systems of family courts, states enacted no-fault divorce policies wherein married couples could legally split without needing to demonstrate the fault of one spouse. Through the 1970s and onward, no-fault divorce became available nationwide and reduced prohibitive barriers to filing. A rapid rise in divorce rates followed, as, for the first time, individuals had a more accessible way to end unwanted marriages.

Today, filing for no-fault divorce is the only option in 17 states, while couples in the other 33 can choose to file either by citing a fault or with no-fault. If you go the no-fault route, you might avoid the effort and resources it takes to prove your spouse’s wrongdoings in court. But because of separation and cooling-off period requirements, you still might need to wait months—or more than a year—for your divorce to be finalized. Waiting period laws function as a deterrent to divorce that is still reminiscent of the old fault system.

But there’s some hope for change. On April 13, 2023, Rep. Charles Smith, a state representative from North Carolina’s 44th District, filed bipartisan House Bill 604 to help reform the state’s waiting period policy. When Smith spoke with family law experts for their insights as he drafted the bill, he asked whether North Carolina’s one-year separation period came from an antiquated history. “They didn’t really have another reason,” Smith shared with us. “It was just that before deciding if you really want to get divorced, we need you to wait a year to figure out if you’re ready to make that decision. That’s all they gave me.”

The new bill eliminates the required yearlong separation period specifically for victims of domestic violence, a parallel effort to the recently-filed, bipartisan Senate Bill 575. (Neither bill addresses the cooling-off period after filing.) Women make up 85% of domestic violence victims and face the highest risk of serious injury or death when they try to leave their abusers. But in some states, North Carolina included, victims of domestic violence must still complete mandatory waiting periods without exception prior to filing for divorce.

Rep. Smith started his career as a district attorney specializing in domestic violence cases, where he saw the danger of drawn-out resolutions for victims. “With how cyclical a [domestic violence] relationship is, having that immediate out is important to break the cycle,” he said. “The more time that goes [by], the more influence the abuser has.”

These joint bills in the North Carolina state legislature are a promising, renewed effort that follows a series of failed attempts across multiple states to reduce or eliminate divorce waiting periods. North Carolina’s 2015 attempt to eliminate the yearlong waiting period in cases of one spouse’s felony conviction went nowhere, along with other stymied bills in 2019 and 2021. Last month, Virginia put forth a bill that died in committee. And because South Carolina’s one-year separation period is written into its constitution, any changes would require voters to approve an amendment—an effort which has failed in the past.

Each of these bills has attempted to chip away at outdated laws that put women at risk. But we need to consider how our society views divorce more broadly. “We’ve got federal policies that affirmatively encourage marriage,” Amy Barasch told us. “We make sure that if you’re low income, the locality can’t charge a fee to get your marriage license. We remove every possible barrier. But then should you choose to end that marriage, barriers pop up in all sorts of ways.” While we found that 38 states have a mandatory waiting period of some kind for even the most straightforward divorces, ranging from 20 to 455 days, only 18 states require any wait to get married—the longest of which is five days.

We need widespread divorce policy reform and the elimination of waiting periods in states that require them. But we also need to reckon with why divorce continues to be one of the most expensive, complicated, and stressful life experiences for American adults. The ability and time it takes to end an unhappy or unsafe marriage should not depend on whether you live in the Carolinas or California. We must make divorce accessible, safer, and more equitable for all.

“We see divorce as a social justice issue,” Barasch said. “Highlighting the impact of ludicrously complicated divorce laws is so important, especially for women.”

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