Nostalgic Attempts to Recapture What Never Was: Louisiana's Covenant Marriage Act

• Publication year: 2021

77 Nebraska L. Rev. 567. Nostalgic Attempts to Recapture What Never Was: Louisiana's Covenant Marriage Act

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Comment*

Nostalgic Attempts to Recapture What Never Was: Louisiana's Covenant Marriage Act

TABLE OF CONTENTS

I. Introduction: The State of the Marital Union ........... 567
II. An Overview of Fault and No-Fault Divorce .............. 571
III. The Louisiana Solution for Taming the Divorce Rate . . . 574
A. An Overview of Covenant Marriage .................... 574
1. The Counseling Components ........................ 575
2. The Fault and Fault-like Divorce Grounds ......... 575
3. The Complete Disclosure Element of Covenant
Marriage ......................................... 576
B. Reactions to Covenant Marriage ...................... 578
IV. Addressing the Criticisms of Covenant Marriage ......... 580
A. The Coercion Factor ................................. 580
B. Feminist Objections ................................. 581
C. Conflict of Laws Issues ............................. 583
V. Conclusion ............................................. 587

I. INTRODUCTION: THE STATE OF THE MARITAL UNION

There are widespread concerns nationwide about the impact of the towering divorce rate currently plaguing this nation. Roughly fifty percent of new marriages entered into today can expect to end in divorce. (fn1) Most Americans are aware that divorce rates in the United States rose steadily through the seventies and through the mid-eighties. (fn2) In fact, the divorce rate has been rising since the mid-nineteenth century.(fn3) What many do not know is that the precipitous increase has

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leveled off and remained steady since the mid-eighties.(fn4) Nevertheless, many Americans, and especially their lawmakers, are extremely interested in curbing the American divorce rate. Anyone who has experienced the impact of a divorce would say that this is a worthwhile aspiration.

Divorce wreaks havoc on children and on families, both economically

and socially. These effects are well documented. Increasing numbers of children are raised in single-parent families.(fn5) Single-parent families earn significantly less on average than two-parent house-holds. (fn6) Fathers, in the aggregate nationwide, are behind in child support payments totaling several billion dollars.(fn7) Children raised in single-parent homes are more likely to suffer from behavioral and emotional problems, to become sexually active, to use drugs, and to fare poorly in school.(fn8) Commentators refer to the American family as being in crisis. The previously mentioned conditions indicate that this could be correct.

Given the plight involved in the culture of divorce, many have begun searching for ways to fix the near preponderance of broken American marriages. Taking what some feel is a rather myopic view, many lawmakers and commentators have begun putting the blame for the staggering divorce rate on no-fault divorce laws. In almost every state legislature, the nostalgic yearning for some return to the previous regime of fault divorce law can be found, and Louisiana is one state that passed legislation aimed at putting some fault back into divorce proceedings.(fn9)

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Louisiana enacted legislation that will allow its state's couples to opt to have a "covenant marriage" rather than a standard marriage. The language of the statute reads:

A covenant marriage is a marriage entered into by one male and one

female who understand and agree that the marriage between them is a

lifelong relationship. Parties to a covenant marriage have received

counseling emphasizing the nature and purposes of marriage and the

responsibilities thereto. Only when there has been a complete and

total breach of the marital covenant commitment may the non-breaching

party seek a declaration that the marriage is no longer legally

recognized.(fn10)

As this language indicates, the legislation precludes couples who have chosen to have a "covenant marriage" from access to the state's general no-fault divorce law. The law declares that covenant marriage couples may only have their marriage dissolved when a "non-breaching party" can show that there has been a "complete and total breach of the marriage covenant commitment."(fn11) The legislation sets forth "exclusive means to terminate a covenant marriage."(fn12) These means do not include the ground of "living apart," or a six month separation, which is available in the no-fault divorce law.(fn13) However, the covenant marriage can be dissolved after two years of separation.(fn14) Couples choosing covenant marriage must also document that they received pre-marital counseling and agree to undergo counseling before seeking a divorce.(fn15)

Legislators in Louisiana and other like-minded advocates hope that solutions such as "covenant marriage" will induce couples to enter marriage more solemnly and be less likely to seek divorce.(fn16)

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Their battle cry calls for strengthening marriage. Covenant marriage bills and other no-fault alternatives have been introduced into the legislatures in almost every state. Louisiana was the first state to enact a covenant marriage bill.(fn17) There appears to be some evidence that many Americans are at least nominally in favor of "strengthening the marital bonds" as well. In a Time/CNN poll, fifty percent of those surveyed answered "yes" when asked if it should be harder for couples to get divorced.(fn18) If the premarital counseling, fault and fault-like divorce grounds, and reinforced pledge of commitment involved in the covenant marriage experiment operate to decrease the divorce rate in Louisiana, then many states will likely follow suit.

This Comment will examine covenant marriage in light of the experiences of both fault and no-fault divorce laws. It will begin with an overview of fault and no-fault divorce law. Next, the Louisiana covenant marriage legislation will be discussed. The spotlight will be on whether this legislative salve will be able to deliver what its proponents intend. There are many legal and societal components of covenant marriage that suggest that it will not.

It is this Comment's proposition that returning to fault based divorce law will do little to curb the American divorce rate. The divorce culture of the latter half of the twentieth century was the product of a changing society. It was not principally the product of no-fault divorce. Putting the blame squarely on the shoulders of no-fault divorce laws for the high divorce rate is misplaced. In reality, the fault system operated like a no-fault system in disguise. Couples facing fault divorce laws were adept at evading these laws in the 1950s. They will be no less adept at evading covenant marriage's return to fault principles in the 1990s. The very people who are the least adept at evading fault-like divorce laws, the poor and abused spouses, will be hurt the most by a return to fault divorce laws as embodied in covenant marriage.

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II. AN OVERVIEW OF FAULT AND NO-FAULT DIVORCE

Under the old fault divorce regime, the law in every state required a showing that one of the parties to the marriage had violated one of the narrowly defined marital transgressions. Most typically, these included adultery, cruelty, and desertion.(fn19) Other grounds included certain crimes-insanity, homosexuality, and drug addiction.(fn20) Only an "innocent" or "non-breaching" spouse could apply for a divorce. That is, only a spouse who had not also committed one of the defined breaches of the marriage listed above could be granted a divorce. Further, if the court concluded sua sponte that the couple had colluded together to fabricate a fault ground, the court was to deny the divorce. A non-breaching spouse continuing a relationship with a spouse who had breached one of the fault grounds was viewed as condoning the behavior and would be denied a divorce for that transgression. On paper, the grounds for divorce under the fault regime were quite difficult to prove.

In reality, the substance of dissolution proceedings diverged widely from the rigid form of the fault divorce laws.(fn21) By the early 1960s (and long before that) "divorce-seeking couples often subverted or ignored the restrictive fault rules. The most common evasions were migration and collusion; couples would either go to a jurisdiction with more lenient divorce laws, or would perjure themselves before the court to manufacture instances of marital 'fault.'"(fn22) "In the 1960s, ninety percent of American divorces on fault grounds were granted without contest."(fn23)

By the 1960s, many commentators felt that American divorce court proceedings had transformed into "adversary theater[s] of the absurd." (fn24) American society was increasingly viewing marriage and the family as less of an autonomous unit and more of a partnership between individuals that was "terminable at will when it failed to meet the needs or desires of either party."(fn25) Divorce evolved into "a regrettable, but necessary, legal definition of a marital failure, where very often the factors leading to the marriage breakdown were not all one-sided and based solely on the fault of one guilty party, but they were also caused by the incompatibility and irreconcilable differences of

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both spouses."(fn26) Opinion turned against the fictions and excesses of the rigid fault regime. It was at this point that no-fault divorce laws began to enter the picture. This changed attitude toward divorce drove the movement toward no-fault divorce laws, not the other way around.

Central to the movement toward no-fault divorce was the preservation of judicial integrity.(fn27) No-fault divorce laws were never originally conceived as either a way of encouraging easy divorces or encouraging serial marriages.(fn28) Rather, they were intended to give trial...