Convenant Marriage

By Attorney 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:

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.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.