With Justice for ALL (quote from the pledge of allegience U.S.A.)
This is an informational website offering support not legal advise
By Gregg Herman
November 26, 1997
Louisiana's marriage laws contain a new twist.
Under a recently enacted law, couples can opt for a "covenant marriage".
Rather than traditional "no fault" divorce grounds, a couple can agree
that, essentially, traditional "fault" grounds will be applied to
their marriage. Is this a good idea? What implications arise for the practice
of family law should this practice become widespread?
For many years, no fault divorce laws spread through
the country while, at the same time, divorce rates skyrocketed. Whether a cause-and-effect
relationship exists has been the subject of much discussion and research. As
far back as 1987, the Family Advocate (a publication of the ABA Family Law Section)
presented a special issue, debating both sides of no fault divorce. See: Vol.
10, No. 2, Fall, 1987.
The new Louisiana law does not simply reinstate fault as grounds for divorce. Rather, it allows couples to choose which law will apply to their divorce. If they opt for "fault" rules, they must receive premarital counseling. Then, a divorce may only be granted upon proof of:
" A felony conviction with a sentence of hard labor
" Abandonment for one year
" Physical cruelty
" A two-year separation
" An 18-month legal separation if there is a minor child
" A one year legal separation if there are no minor children 1
In its October, 1996 fall meeting in Washington,
D.C., the American Bar Association Family Law Section debated whether fault
grounds should be restored to states where they had been eliminated. Speakers
included mental health professionals, a legislator and family law attorneys
from across the country. The sentiment was unanimous that no fault divorce makes
divorce easier. It eliminates the necessity for placing blame within the legal
system. At the same time, it makes divorce less litigious and, thus, less expensive.
Whether this is a good thing or a bad thing was the subject of some disagreement.
No fault laws proliferated due to dissatisfaction with fault as a requirement to get divorced. In the words of one commentator:
...under a fault-based divorce regime, a number
of couples in unhappy marriages often would have to fabricate various fault
grounds for divorce and resort to perjury, often with the assistance of their
legal counsel. Wealthier Americans increasingly utilized questionable migratory
divorces from sister states "divorce mills" or from various foreign
countries that offered "quickie" twenty-four hour divorces to American
domiciliaries. No-fault divorce legislation in the United States, therefore,
was intended to be a good faith remedy to many of these perceived evils and
shortcomings inherent in a fault based system. 2
It is undisputed that children are best served by being brought up in a two-parent home, where both parents are actively and cooperatively involved in parenting. If this cannot happen, the next best scenario is for separate homes, each presenting a loving, caring environment, with an absence of conflict between the parents. The anecdotal evidence arising from the ABA Family Law Section discussion, was that not only does fault divorce not decrease the overall divorce rate, but it increases the level of conflict between the parents, as they are forced to litigate the underlying basis for the dissolution.
The concept of allowing choice of laws is troublesome
in several respects. Perhaps the largest question is whether, in addition to
preventing divorces, it also has the effect of preventing marriages. It is becoming
more common today for couples to have prenuptial agreements, and more than one
engagement has ended due to disagreements in the negotiations. Where grounds
for divorce are added, much more significant issues are at stake than just money.
One can just imagine the discussion during negotiations:
Her: Honey, How about one of those covenant marriages?
Him: Well, I think a regular marriage should be OK for us.
Her: Why do you have a problem with a covenant? Are you planning on being unfaithful?
Him: Of course not, buttercup. It's just that I think the regular rules should be good enough for us.
It doesn't take much imagination to see where this
discussion is going to lead.
One of the beautiful theories of American jurisprudence
is the concept - perhaps more theory than reality - that there are 50 laboratories
for experimentation. Under this theory, one state can study the effect of a
law in one state and extrapolate as to the wisdom of adopting the law. For example,
Wisconsin adopted nearly 10 years ago the Uniform Marital Property Act. Partially
due to its poor experience, shared with other states, Wisconsin remains the
only "uniform" state.
Similarly, Louisiana has apparently volunteered
to be the laboratory for a new concept. Will "Covenant Marriages"
reduce the divorce rate? Will it prevent marriages between partners who are
not willing to commit to each other? Or, will it only increase the bitterness
and fighting, not only during the divorce, but before the marriage, as well?
As an experiment, it will be interesting for the other 49 states to see where
it leads and whether it is worth following.
1- ABA Journal, September, 1997
2 - Peter Nash Swisher, "Reassessing Fault Factors in No-Fault Divorce", Family Law Quarterly, Vol. 31, No. 2, Summer, 1997 at 270-71.