In American life marriage is both intensely personal but also a legal institution.
Two people decide privately that they want to build a life together, but the state recognizes that decision, regulates many of its consequences, and ultimately presides over its dissolution.
That raises a fair question: if the state has an interest in marriage, should it require couples to attend counseling before allowing them to divorce? I can see the argument for it.
Stable marriages and families confer enormous benefits, not only on spouses and children but on the communities in which they live. Whether it is fashionable to admit it or not, the nuclear family is the bedrock of a thriving society. Families raise children, share resources, care for one another, and create forms of stability that government cannot easily replace. When marriages fail, the consequences often extend well beyond the two spouses, and for generations.
So the idea of requiring a couple to spend a few hours in counseling before ending a marriage is not absurd. We require people to comply with all kinds of procedural requirements before making consequential legal changes. Why not require one final attempt at reflection before dissolving a marriage?
In some cases, counseling would help. Some marriages end during periods of anger, exhaustion, financial stress, betrayal, poor communication, or temporary crisis. A competent counselor may help spouses identify problems that are repairable. A short delay may prevent an impulsive decision. Some couples who believe their marriage is finished may discover that it is not.
Now the harder question: while the government has a legitimate interest in promoting strong, stable families, does it follow that the government is competent to decide which marriages should be saved?
The answer is no. Clearly.
After decades of practicing family law, one thing becomes obvious: marriages do not fail for one reason. Some couples are simply miserable together. Some have grown apart. Some cannot stop fighting. Some marriages have been damaged by infidelity, addiction, financial irresponsibility, manipulation, neglect, or abuse. Some spouses have spent years trying to repair the relationship before ever consulting a divorce lawyer and have reached a point where the decision is not impulsive at all but is overdue.
A blanket counseling requirement treats all of those marriages as though they present the same problem and would benefit from the same treatment. They do not, and they would not.
Counseling also depends on willingness. A therapist can facilitate communication, identify destructive patterns, and help people examine whether reconciliation is possible. But therapy cannot manufacture desire where none exists. It cannot compel affection, trust, repentance, or commitment. Requiring two people who have already made a considered decision to divorce to sit in a therapist’s office may accomplish little beyond adding expense, delay, and resentment.
There is another practical problem that advocates of mandatory counseling tend to glide past: counseling is not a standardized product, and its quality varies wildly. “Get some good therapeutic help” sounds simple until you have to identify what “good” means, who gets to decide, and who pays for it. Some counselors are excellent. Most are mediocre.
Some are poorly suited to high-conflict couples, abuse dynamics, personality disorders, addiction, or the particular problems a marriage presents. A government mandate would inevitably create a captive market, and captive markets invite waste, inflated fees, box-checking, and providers who profit from the requirement whether or not their services actually help. The last thing divorcing families need is another expensive industry built around satisfying a procedural prerequisite.
That does not mean society should be indifferent to divorce. Quite the opposite.
We should encourage couples to seek help before their problems become irreversible. Good counseling should be accessible and affordable. Churches, communities, schools, employers, and public institutions can do more to support healthy marriages and families. Courts can provide information about counseling and reconciliation services. States can require reasonable waiting periods or educational programs designed to ensure that people understand the consequences of divorce.
But there is an important difference between offering a path back and blocking the path out.
The law should be very cautious about telling an adult, “You may not end this marriage until you have first demonstrated that you tried hard enough to save it.” That is not a judgment government is well equipped to make.
Marriage is worth supporting precisely because it is a profound voluntary commitment. Its value comes from two people choosing, day after day, to remain bound to one another. Once the state begins requiring people to prove their willingness to reconcile before permitting them to leave, it risks undermining the very principle that gives marriage its moral force.
Counseling may help mend a marriage when the people in it want it mended. The fix cannot be ordered into existence.
Promoting strong marriages is a moral and economical imperative. Strong marriages are more than worth promoting, and we must encourage offer struggling marriages and families what help we can. Preserving marriage as an institution cannot, however, justify preservation by force or coercion. The state should encourage reconciliation where it is possible, without standing in the way when it is not.
Utah Family Law, LC | divorceutah.com | 801-466-9277