GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2025

Status

Accepted

Abstract

Divorce is the termination of a legal relationship. It is necessary for the enforceable division of property and debts between spouses as well as for remarriage. However, it’s not simply a lawsuit. Instead, it most often involves a seismic shift in the very foundations of life and, as such, frequently provokes, exacerbates, and exposes insecurities, instabilities, and vulnerabilities. This legal process also involves a unique relationship between litigants who are former intimate partners—often co-parents—and who are largely unrepresented and therefore engaged in a new form of relationship as opposing parties to a lawsuit. Given these complex dynamics, one might hope that the legal process would be expedited to minimize trauma and to bolster financial stability. Instead, the legal process of divorce is complicated, time-consuming, and rife with pro-cedural and substantive hurdles that result in the majority of divorces languishing in the court system. But unlike most legal system delays, the ponderous pace of the divorce system is not the result of inefficiencies or bugs in the system. To the contrary, many of the divorce system’s delays are deliberate features. Most are expressly intended to slow the pro-cess, compel couples to reconsider their decisions, and ultimately, deter divorces. Others are intended to support pro se litigants, but instead, as implemented, often greatly disadvantage them.

Our society’s traditional support for the institution of heterosexual marriage—which one can enter after little more than the mere submis-sion of a form—has informed the structure of the divorce system and has resulted in a series of procedural hurdles to discourage divorce. This Article enters a conversation about the relationship between religion, morality, tradition, and the procedural impediments to divorce and begins a conversation about how those impediments most harm those located at the intersection of poverty and gender bias. These conversa-tions are critically important now, as national political efforts to restrict access to divorce have reemerged. Specifically, this Article analyzes the procedural impediments to efficient divorce actions and the harm those impediments cause to all, but particularly to our system’s most vulnerable litigants—disproportionately low-income women. After illustrating that these procedural delays have not resulted in preserving marriages and instead have enhanced the risk of harm, this Article analyzes a range of system changes that take into account the often-emergent nature of divorces, the unique relationship between the parties, and the support processes that would better meet the particular needs of divorce litigants and their families, as well as the court system generally. These statutory and procedural innovations seek to create an expeditious path to perma-nent resolution of divorce cases for all litigants. They include eliminating or greatly reducing waiting periods, shifting the presumption in divorce cases to limited discovery, providing expedited mediation opportunities, and creating the statutory right to expedited divorces for those for whom delay would cause particular harm. These statutes would operate much like domestic violence protection order statutes, acknowledging the par-ticular vulnerabilities of those seeking protection and the unique nature of judicial intervention in the context of intimate family relationships.

GW Paper Series

2025-32

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