Rep. Tom McBillvray has sponsored a bill that could affect many Montanans that file for dissolution of their marriage in this state. House Bill 438 was introduced on February 7, 2011. If passed, the bill would require those with minor children to attend counseling before the district court could make a finding that the marriage is “irretrievably broken.”
The bill goes on to specify what type of counseling would be required, the topics that must be covered, the amount of counseling that must take place, and the type of counselor that must be utilized.
The most problematic aspect of the bill is the proposed subsection 5(b), which states that the counseling requirements do not have to be met “if there has been a claim of physical abuse of one of the parties by the other. Corroboration is not required for a claim of physical abuse….” Appropriately, the bill makes room for those that have been physically abused, as I think most would agree that forcing parties to undergo counseling when there has been physical violence is not appropriate. My concern is that more and more claims of physical abuse will be made, just so that litigants are able to avoid the counseling requirement. Since corroboration of the claim is not necessary, a litigant would understand that they do not need to have prove that physical abuse has occurred.
Another concern is how the court handles this statute if a party defaults. If a party fails to respond to the petition for dissolution in an appropriate amount of time, the court may enter that party’s default and grant the dissolution according the petition. If counseling is automatically required, how does the court grant the dissolution? And more importantly, if a person does not even respond to a petition for dissolution, is it reasonable to think they will willing go to counseling? I doubt it.
While I am not particularly a fan of the entire proposal, a better option may be to include a provision that allows the District Court to waive the counseling requirement if appropriate. It would prevent litigants from being punished for their spouse’s refusal to participate.
Follow this bill here.