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COPYRIGHT 1998 Transaction Publishers, Inc.
Introduction: The Problem
Marriage and divorce are critical components of an understanding of women's issues, since family inevitably interacts with the workplace. Wives in the late 1990s, though they are disserved by divorce in many ways, instigate dissolution of their marriages at a far higher rate than do their husbands (Braver et al., 1993). In Connecticut, for example, more than two-thirds of wives (68.2 percent) filed for divorce during the years 1991-1995, despite the fact that nearly the same percentage of these marriages (68.6 percent) included minor children. Understanding why wives are dissatisfied with marriage and what might improve family is both important and difficult. This article does not attempt to resolve all of these issues, but it asks whether a change in the laws affecting marriage and divorce might make a difference to married women, their husbands, and their children.
Assaults against no-fault divorce have been mounted before, and they have been universally unsuccessful. Yet we can learn from these earlier trials. When no-fault was limited to a relaxation of the principle that to obtain a divorce the complainant must be blameless, spouses who wanted to escape their marriages left temporarily for states with easier divorce rules (Brinig and Buckley, 1998a). They were able to obtain divorces after meeting relatively short standards for domicile. Their home states, which had more restrictive divorce policies, still had to provide for their abandoned spouses. Under common conflict of laws rules, the spouses left behind sought to maintain that the home states (or states of matrimonial domicile), should be able to govern the prevailing divorce rules for the marriages in question. Not so, declared the Supreme Court in the famous case of Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 213, 87 L.Ed. 279 (1942). Divorce jurisdiction is based upon domicile of either or both of the spouses, since it affects the marital status of husband and wife. The marriage, the res giving the forum subject matter jurisdiction, follows either spouse to a new domicile. As long as the migrating spouse met the divorce state's residence requirements and intended to establish a new domicile, it mattered not that the matrimonial domicile's policy against easy divorce was thwarted. The full faith and credit clause of the constitution requires that a court honor a sister state's valid divorce decree, however painful this might be to the marital domicile's public policy, fisc, or the abandoned spouse (Williams v. North Carolina II, Williams II, 325 U.S. 226, 242, 65 S.Ct. 1092, 1101 [1945]).
Divorce laws can always be set (or changed) by legislative action (Maynard v. Hill, 125 U.S. 190 [1888]). This is a matter for state, not federal, law, and federal courts decline jurisdiction over divorce and related actions under the "domestic relations exception" (Ankenbrandt v. Richards, 112 S. Ct. 2206 [1992]). The legislature may even alter the exit rules for a marriage already contracted.(1) When no-fault divorce laws were enacted, unhappy citizens challenged them unsuccessfully, claiming impairment of their contracts, disruption of valid property rights, or infringement of first amendment religious freedom.(2) Thus despite a marrying couple's earnest wish to make marriage more permanent or exit less facile, states currently will not enforce contracts between individuals restricting divorce (Towles v. Towles, 256 S.C. 307, 182 S.E.2d 53, 55 [1971].
In some states, though, there may be monetary costs for unilaterally terminating a marriage. A majority of states allow fault to be considered in determining alimony or in dividing property. Presumably individual couples contracting beforehand could make similar bargains at the time of marriage, allowing unilateral divorce only upon payment of some financial penalty.(3) It is unsurprising that the divorce rates in states retaining some concept of fault are lower than where fault is irrelevant. Perhaps because such financial penalties deter divorces, there are very few reported cases considering such contracts. Only a very few couples enter into premarital contracts at all. Many lawyers consider them destructive of the spirit of most engaged couples, for, as one court wrote, "It is seldom that parties in their premarital negotiations conduct themselves in the same manner as parties negotiating a business deal. As Dickens says, 'The confiding eye of affection is not the distrustful eye of business.'" Alexander v. Kuykendall, 63 SE2d 746 (Va 1951). Premarital contracts are also beyond the financial means of all but a very few Americans.
The awkwardness of individual contracts plus the growing feeling that no-fault divorce has spawned substantial social problems set the stage for the movement towards what Louisiana has recently enacted as covenant marriage and what a growing number of other legislatures are considering. Because of the lack of federal jurisdiction over divorce plus the extraterritorial validity of divorces wherever obtained, any rolling back of the no-fault carpet must occur through state legislative action. In other words, what the state legislatures must do is allow couples the freedom to contract about their divorce regimes. Otherwise, by default, the state divorce grounds will govern. The Louisiana covenant marriage legislation thus demonstrates both the extension and limitations of freedom of contract when applied to family law. The statute allows for greater freedom in contracting, without which the state determined rules for divorce do not allow for choice in divorce regimes.
A Possible Solution: Louisiana Covenant Marriage
The Louisiana legislation does not revoke no-fault divorce. For couples who elect an easy exit, unilateral divorce will still be possible after six months.(4) However, for those who wish to enter into a covenant marriage after counseling and notice about the default (no-fault) alternative that will be waived,(5) a more difficult divorce will be possible. The grounds for dissolving the covenant marriage are the traditional fault grounds: adultery, physical or sexual cruelty to the other spouse or the child of either or both, and imprisonment at hard labor for a felony, plus separation for a lengthy period. For less serious marital problems, permanent separation (called a bed and board separation) remains available.(6) The covenant marriage will be available for Louisiana couples already married. It will not affect marriages contracted elsewhere (unless the couple remarries in Louisiana) nor divorces taking place outside the state (unless the divorcing state has no jurisdiction over the action).(7)
The Virginia legislature is currently considering a return to fault that can usefully be contrasted to the Louisiana regime.(8) Virginia couples would have some choice as to whether they were to have a no-fault or a fault divorce, with two differences. Virginia's proposal allows childless couples to have what is in effect a unilateral no-fault divorce.(9) For these, six months' separation only is needed. The second difference is that Virginia couples with children could bilaterally agree to divorce without having to prove fault grounds. In other words, they could always modify their contract about divorce terms once the marriage became problematic. The fault-only divorce becomes less attractive where it is mandatory once children are born. This option reduces choices, unless the decision whether or not to continue a pregnancy (more controllable than whether or not to initiate one) is seen as the operative conscious choice, in which case it would ultimately be the wife's choice. One possible unintended consequence of such an option would be an increased number of abortions sought by pregnant women who wanted to divorce under the no-fault provisions.(10)
Covenant marriage, with its several variations, presents some of the same questions as does the same-sex marriage problem raised by the Hawaii Supreme Court case of Baehr v. Lewin (Ertman, 1996). How much will the action of one state, say Louisiana, affect marriages in another state? The answer is that it will not, at least not directly. Although covenant marriages would be recognized in all states under full faith and credit (because they are marriages validly entered into that are not violating any other state's strong public policy), the covenant marriage's restrictions on divorce will not have extraterritorial effect.(11) They will just be like other marriages as far as the other states are concerned. The same-sex marriage question is far more threatening because the new unions themselves would violate enacted public policy in other states. There is no way to simply remove the different or offending provision without denying the very relationship in question. To the extent that more difficult exit rules offend the foreign state's public policy, they can just be ignored. The marriages will otherwise seem exactly the same. For same-sex marriages contracted elsewhere, the entire marriage will be against public policy in other states.
Possible objections
The precommitment required for covenant marriage might limit freedom.
The Louisiana statute, by allowing the state to take a greater role in determining reasons for divorce (thus, reducing freedom of some couples to exit unhappy relationships), at the same time makes more choices available at the onset. I have argued elsewhere that sometimes prescribing sorts of behavior (in this case, no fault divorces for those electing covenant marriage) when one is in a relationship gives more freedom (Brinig, 1994: 1587). Covenant marriage, as Elizabeth and Robert Scott point out (Scott and Scott, 1998 forthcoming), will also lead to greater investment in the sorts of things that make marriages better but that are bad investments in the less permanent world of no-fault. It will promote more marital autonomy (freedom from state regulation while marriage continues), while permitting enforcement of whatever contracts the couple wishes to make, such as contracts over household tasks (Silbaugh, 1995). In another piece, Frank Buckley and I pointed out that the sort of precommitment made in the Louisiana covenant marriage would lead, like other bonding devices, to better later choices (Brinig and Buckley, 1998b).
The election cannot be made because of information problems.
One objection to the sort of precommitment that covenant marriage implies has been made by Lynn Baker and Robert Emery (1993). Baker and Emery point out that most couples, even those seeking marriage licenses, don't know much about marriage and divorce law, and particularly are overly optimistic about the chances for their own marriage to come upon hard time. Of course, marrying when one is not optimistic about the future relationship would certainly signal the likelihood of its demise. This may be one reason couples are reluctant to enter into premarital agreements in general (and lawyers are reluctant to advise them in the routine case) (Rasmusen and Stake, 1998; Younger, 1988). Baker and Emery found, however, that the engaged couples did know the statistics on divorce. Their confidence is not only characteristic of marriage, but the many long-term relational contracts courts enforce every day.
Another type of information problem is described in the important article by Becker, Landes, and Michael (1978). These economists note that many unstable relationships are those entered into when the parties could not complete an optimal search for a new partner. Such hasty marriages, which tend to break up within the first couple of years, include those where the woman is already pregnant or has one or more minor children from a previous relationship, and those of couples who have religious or racial differences. On the other hand, couples who are older and more able to tolerate change seem to have better marital chances (Klagsbrun, 1985). If the Louisiana couples were not required to have counseling before covenanting to marry, this information lack might be quite serious, especially for young couples. The counseling requirement seems to be among the most popular reasons given for supporting the new legislation. The enthusiasm assumes that premarriage counselling will be effective in deterring the unwary from unwise matches. The fact that a number of religious groups currently require such counseling before their adherents can be married in a religious ceremony indicates that the counseling may have positive results (Shipley, 1997; Rosin, 1996; Winters, 1997).
Finally, there may be an objection based upon signaling. No one is certain how many couples in Louisiana will ultimately elect covenant marriage. In other words, the equilibrium number may be quite high not because couples would select the stricter divorce rules in the abstract, but because not to select covenant when it is an option suggests that one is less certain about marital fidelity or longevity (Bishop, 1984;...
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