Covenant Marriage Reformers Should Listen to Divorce Lawyers -- Carefully



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By John Crouch, Arlington, Virginia

April, 1999

[Article originally prepared at the invitation of the Regent University Law Review, but not published there. Biblical references are present because Regent is a Pentecostal Christian school and articles in its Law Review commonly use them.]

Proposals for Covenant Marriage legislation raise questions that divorce lawyers are uniquely equipped to help answer. Lawyers are the law's indispensable technicians. They have unique insight into: (1) What judges, court clerks, and clients will or won't do in response to new legislation; and (2) Which laws about things other than divorce grounds will interact with reforms to produce unintended results. Also, divorce lawyers are uniquely able to testify about the need for reform, and how bad things really are in the present system of divorce litigation.

Covenant Marriage is a legislative proposal to let couples choose, when they get married, stricter divorce laws than those which apply generally. The additional restrictions on divorce, in most bills, consist of a waiting period, generally two years, and marriage counseling before the divorce can be obtained. These restrictions generally apply only to no-fault divorce (i.e., divorce granted on grounds of separation or irreconcilable differences.) Covenant Marriage bills also provide that couples must receive a certain amount of premarital counseling in order to be allowed to choose Covenant Marriage.

This article will apply practicing lawyers' knowledge and experience to discuss what the likely effects of Covenant Marriage will actually be in practice. It is based not merely on my own experience, but on the observations of many divorce lawyers, recorded in a variety of media. [FN: Because this article's thesis is that practicing lawyers have knowledge that is worth sharing here, it will cite the humble sources in which lawyers' experience is actually reported, such as articles in bar association newsletters, non-academic books by practicing lawyers, transcripts of conference proceedings, continuing legal education outlines, comments by nationally-known veteran divorce lawyers on a closed listserv - and even the previously unrecorded experience of the author, who is himself a divorce lawyer and who suspects that his job has some relevance to the reason why he was asked to write about the practitioner's perspective.] It will draw on lawyers' observations about the effects of the present system, to inquire whether change is needed in the first place, and whether proposed alternatives to reform are likely to work. It will evaluate the behavioral theories upon which Covenant Marriage proposals are based, in light of what lawyers actually have observed in their clients' lives. It will shed light on possible unintended consequences, and will explore ways to prevent such collateral damage. But in the process, it will also try to clarify the limits of lawyers' unique knowledge and foresight, so that the reader who does not practice divorce law will be able to evaluate divorce lawyers' arguments about Covenant Marriage critically.

This article will discuss what divorce lawyers have to say about the following major issues raised by Covenant Marriage legislation: the need for reform; whether covenant marriage is a "return to fault"; the prospects for helping people make better marriage decisions; whether people will instead be "trapped" by the results of bad marriage decisions; whether covenant marriage can provide an effective deterrent to divorce; waiting periods, and whether they will work as intended; tax-law marriage penalties and their unintended interaction with waiting-period laws; whether to allow divorce when there is mutual consent; and issues to consider in drafting pre-marital and pre-divorce counseling requirements.

Contents:

Introduction

I. The Need For Reform -- What Lawyers Say
A. How Bad Things Are

B. Unfeasibility of Alternatives to Reform
C. The Politics of the Divorce System's Constituencies -- A House Divided

II. Divorce Lawyers' Attitudes Toward Family Law Practice and Reform

III. Will Covenant Marriage Be a Return to Fault?
A. Fault in the Past: Dispelling the Mythology
B. Fault in Today's No-Fault System
C. Fault as a Device to Avoid Waiting Periods
D. Problems of Fault Evidence, Corroboration and Children: Illustration of the Drawbacks of Divorce Lawyers' Conservatism

IV. Marriage Decisions: Will Covenant Marriage Make Better Marriages, or Trap People In Bad Ones?
A. What We Don't Know

B. Repeat Offenders.
C. "Growing Apart" or Changed Personality.
D. How Premarital Education Can Help.

V. The Decision To Leave a Marriage: How Can Covenant Marriage Provide an Effective Deterrent to Divorce?
A. People's Responsiveness To Law and Legislation

B. Lawyers' Knowledge Of Clients' Life Decisions
C. Reform Must Change People's Minds Before They Consider Divorce

VI. Waiting Periods: A "Cooling-Off" Period for Reflection and Reconciliation?
A. The Theory Behind Covenant Marriage and Waiting Periods
B. The Dynamics of Separation and Reconciliation
C. What Message Do Waiting-Period Laws Send?
D. Lawyers and Clients Don't Think It's a "Cooling-Off" Period.
E. Prospects for a True "Cooling-Off" Mechanism
F. Combined Effect of Waiting Periods and Marriage Penalties on Reconciliation
G. The Mutual Consent Issue -- Experience in States with Long Waiting Periods
H. Economic Side Effects of Waiting Periods

VII. Counseling Requirements in Covenant Marriage: Lawyers' Advice Within and Without Their Expertise
A. Counseling on legal grounds for divorce
B. Marriage Counseling Before Divorce: What we know.
C. Who Performs Premarital Education: Priests, therapists, witches, or marriage educators?

VIII. Conclusion: Specific Recommendations



I. The Need For Reform

A. How Bad Things Are

Divorce lawyers are uniquely able to testify to how bad things are in the present system. Few would disagree with the prophet Malachi, who observed that "divorce ... covers one's garment with violence." [FN Malachi 2:16.] But unlike others who have firsthand knowledge of this, they also have perspective, gained from many different cases. Unlike their clients, they know that the ravages of divorce cannot be blamed on a few bad judges, bad lawyers, or overly emotional husbands or wives. They know that most judges do not single out women, or men, for mistreatment.

There are so many horrible things about divorce litigation that whole books can be written about them; this article can only scratch the surface and list just a few of the things lawyers are in a unique position to observe. Not just the splitting up but the litigation process itself harms children and makes families dysfunctional, as West Virginia Supreme Court Justice Richard Neely observed in The Divorce Decision: The Legal and Human Consequences of Ending A Marriage. [FN McGraw-Hill, 1984, p. 67] Even when everyone involved is a reasonably good person, destructive litigation and bad parenting are the logical results of the system's incentives. [Ibid. pp. 70-74.]

In family law litigation, the nice clients and nice lawyers usually don't win -- virtue is not opportuned. As Chief Judge Judith S. Kaye admitted, "Our cumbersome, outdated court structure giving jurisdiction over family issues to both Supreme Court and Family Court is an invitation to mischief for those intent on making the divorce experience as unpleasant as possible." [FN "We'll Speed Up D-I-V-O-R-C-E" New York Daily News, Friday, October 23, 1998.] Her observation is equally applicable to Virginia, with its two levels of family law trial courts and de novo appeals. A recent issue of the Virginia State Bar's family law newsletter saw fit to quote Isaiah: "'No one enters suit justly, no one goes to court honestly; they rely on empty pleas, they speak lies, they conceive mischief and bring forth iniquity. ... uprightness cannot enter. Truth is lacking, and he who departs from evil makes himself a prey.'" [FN Isaiah 59:4, 14-15, quoted in "Legal Quotation of the Quarter", Virginia State Bar Family Law News Vol 18 No. 1, p. 24 (Spring 1998)]

When a strong yet ethical lawyer with a constructive approach confronts an unethical one, "we all know who is going to prevail - the unethical jungle fighter." This comment was made by an ABA Family Law Section member at a 1988 ABA/Johnson Wax Foundation Wingspread Conference, or retreat, at a conference center in Wisconsin. The proceedings were published, with all participants remaining anonymous and speaking even more freely and bluntly than they usually do, as Child Custody Disputes: Searching for Solomon. [FN ABA, 1989. This comment appears at p. 171.] Why does this happen? It is what many clients want, according to another conference participant. [FN Or possibly the same participant, as all comments were anonymous.] They hire lawyers to [castrate] their evil spouse. "I say it exactly that strongly because I believe that everybody understands that that's what it's all about. ... In the context of that, I'm not sure how much you can humanize." [FN Ibid., pp. 176-77. Brackets indicate a restating of a more graphic description of castration.]

One reason it is so easy for the worst litigants or lawyers to win is that all they have to do is out-spend their opponents. Divorce litigation's expense is far out of proportion to anything ordinary people can pay. As long ago as 1988, one ABA Family Law Section member quoted $25,000 as his or her standard retainer in cases involving child custody. [FN Ibid., p. 28] The problems of representing people who cannot pay, or who run out of money, are a major item of discussion among lawyers. [FN: See, e.g., Jan Gabrielson, Practical Reflections of a California Divorce Lawyer, Century City, Cal.: Walzer & Gabrielson, 1989, pp. 49-56.]

Toronto divorce lawyer Larry Frolick's book on _Splitting Up_ begins, "This is not a self-help book. The middle class cannot afford to get divorced. And there are no solutions to this problem." [FN: _Splitting Up: Divorce, Culture and the Search for a Real Life,_ Toronto: Hounslow Press, 1998; p. 9.]

One court system reports that 60% of domestic relations litigants are pro se at the beginning of their litigation, and 80% are pro se by the end of it. [FN: "Do-it-yourself law hits courts" by Laura Parker and Gary Fields, USA Today Jan. 22, 1999. p. A3.] But despite much-publicized pseudo-attempts, the courts have not actually been able to come up with "generic justice" that satisfactorily replaces the zealous advocacy that lawyers are ethically obligated to supply, as Family Advocate Editor Arnold Rutkin, a Connecticut divorce lawyer, has pointed out in that magazine's theme issue on "The Low Budget Divorce Case: When There Isn't Enough Money to Go Around". [FN: "From the Editor." Family Advocate, Vol. 17 No. 2, p. 4. (Fall 1994).] They probably never will, he adds, because it is not what clients want or need. [FN Ibid.] In fact, the courts are not really committed to replacing the function of lawyers for divorce litigants who cannot afford them. That would be a true abandonment of our adversary system, and would require judges and court personnel to assume some of the advising and advocacy roles of lawyers. "The public policy ... is apparently not to make divorce economically feasible ... . After practicing family law since 1983, I have reached the inescapable conclusion that our system doesn't work." [FN Betsy H. Phillips, "A Modest Proposal by a Troubled Divorce Lawyer," Virginia State Bar Family Law News v. 14, No. 4, p. 4 (Winter 1994-95)]

Those who are attracted to the new beginnings offered by divorce also forget that life as a divorced family is much more expensive. With people starting their economic life later and divorcing sooner, "There no longer is a pot of gold at the end of every client's rainbow." [FN Edward J. Walinsky, "Maxims of Equity 1996", Virginia State Bar Family Law News vol. 6 No. 1 p. 2, 7 (Spring 1996)] "A great deal of the marital estate is often used up ... the standard of living of both parties will diminish." [FN Betsy H. Phillips, "A Modest Proposal by a Troubled Divorce Lawyer," Virginia State Bar Family Law News v. 14, No. 4, p. 4 (Winter 1994-95)]

Divorce lawyers realize that many people who are not getting what they want out of the shrinking pie of divorce; and that those people seem to think that if someone has to be left holding the bag, it should be the lawyers. Richmond divorce lawyer and then-Chairman of the Virginia State Bar Family Law Section Ronald S. Evans wrote: "We are still perceived as part of a system which promotes acrimony for pecuniary gain. ... In our recent Los Angeles experience [i.e., the King riots], we have seen what happens when people do not perceive that they can achieve justice by resorting to our courts. This may be a microcosm of what we can expect in our country in the area of family law ... ." [FN "Chairman's Message", Virginia State Bar Family Law News v. 12. n. 2 p. 1 (Summer 1992).]

B. Unfeasibility of Alternatives to Reform

As a practicing divorce lawyer, I must agree with the Wingspread conferee who said "I'm not sure how much you can humanize".[FN Op. cit., p. 177.] Everyone wants to be nice and get involved in efforts to make divorce a nicer process (at least everyone wants to do this in his or her spare time, if not in litigation). Nobody wants to be the bad guy and work on making divorce harder to get into. However, it seems clear, from my own experience and the collective experience of the lawyers quoted above, that the process is a very bad one, for many unchangeable built-in reasons having nothing to do with substantive law or procedure. "Divorce all too often means economic ruination and the tearing apart of children. It is not fair to hold out false promises of anything else." [FN Betsy H. Phillips, "A Modest Proposal by a Troubled Divorce Lawyer," Virginia State Bar Family Law News v. 14, No. 4, p. 4 (Winter 1994-95)] Thus, if we hope to reduce the suffering the process inflicts, the only feasible solution is not to try to make it nicer (although as self-respecting human beings we must try to do that, too), but to reduce the number of people who end up in it -- especially in divorces that could be prevented.

C. The Politics of the Divorce System's Constituencies -- A House Divided

Lawyers are uniquely positioned to observe what different kinds of clients, and mothers' and fathers' and adopters' and grandparents' pressure groups, are demanding from the legal system, and it is apparent that these demands cannot be reconciled or satisfied. "This system isn't meant to really work. The system really doesn't work. It's the best system we have, but this system is not really going to live up to people's expectations," another Wingspread conferee said. [FN: ABA, op cit, p. 155] Another participant responded that among all the other unrealistic expectations people have about marriage, "they have unrealistic views of divorce, and they have unrealistic views of how the system is going to change something for them." [FN Ibid., p. 158] The coalition of various constituencies who supported the breakup of the family -- whether we are speaking of any particular family or of "the family" as a social institution -- are now fighting bitterly over the scraps of what is left. They still want the freedom to divorce as long as someone else pays for it, and someone else loses custody and is impoverished. But how long can such a coalition's pro-divorce consensus last?

II. Divorce Lawyers' Attitudes Toward Family Law Practice and Reform

Divorce lawyers as a group may not be politically conservative, but they are conservative about changes that affect their work and their clients. This conservative attitude carries over into their legislative activities. This conservatism is quite rational, because they and their clients are the ones who pay the price of change, literally. Divorce lawyers spend thousands every year on new form books, manuals, periodicals, and Continuing Legal Education Seminars, and then we have to spend time teaching ourselves and our paralegals to use the new ways and discard the old. And when a few clients' cases fall through the cracks in this process, they too pay the costs of change. [FN This observation about conservatism is limited to lawyers in private practice, as opposed to those government and academia. Private-sector lawyers have to keep up with change and don't get paid to do so, and they also don't get paid to spend time working for change for the sake of change.]

The rarer a reliable template becomes, the more tightly lawyers seize on it. We know that drafting of legal documents and of legislation is so full of pitfalls that the best we can do is to follow whatever path across the marsh has been successfully followed before, and stick to it religiously. We still heed such maxims as "Fiat prout fieri consuevit - nil temere novandum.- Let it be done as it hath used to be done -- nothing must be rashly innovated." [FN Black's Law Dictionary, 4th Ed., p. 751.] "It is a safe thing to follow approved precedents, for nihil simul inventum est, et perfectum." - Nothing is simultaneously invented and perfected. [FN Co. Litt. 230a]

We also long for constancy and predictability in the law. When both lawyers can tell their clients beforehand what a court will do, the case can settle -- clients can follow the law without having to have a court battle to find out what the law would do. An informed settlement is more dignified and less traumatic, it is all most clients can afford anyway, and it gives lawyers a more socially useful and elevated role: "the wise representative to his client of the legal system and the society." [FN Scott Turow, quoted in Bruce Nash, Allan Zullo and Kathryn Zullo, Lawyers' Wit and Wisdom: Quotations on the Legal Profession, in Brief. Philadelphia: Running Press, 1995, p. 37.] Unfortunately, predictability is "at odds" with other popular goals such as flexibility and perfect fairness, as West Virginia Supreme Court Justice Richard Neely, who favors cutting short the carnage of litigation with a maternal preference in custody cases, points out. [FN The Divorce Decision: The Legal and Human Consequences of Ending A Marriage, McGraw-Hill 1984, pp. 39, 79.]

"It is growing increasingly difficult to look a client in the eye and assure him or her what a Court will most likely do. This makes attorneys' jobs even more difficult." [FN Edward J. Walinsky, "Maxims of Equity 1996", Virginia State Bar Family Law News vol. 6 No. 1 p. 2 (Spring 1996)] Trying to tell a potential client what a Virginia court might or might not do is like giving tourists directions through Washington, D.C.'s crazed traffic pattern: it is so crooked and other-handed that it just makes most of them think you are waffling and dishonest, and that you are winking and nudging them when you tell them not to hurt and defraud their spouse. Many clients are visibly disgusted by this. But even worse, when talking to some of them, I get the idea that they want it in a lawyer.

We wish we could still believe that "half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." [FN Elihu Root, quoted in Bruce Nash, Allan Zullo and Kathryn Zullo, Lawyers' Wit and Wisdom: Quotations on the Legal Profession, in Brief. Philadelphia: Running Press, 1995, p. 58.] But soon it will be considered harassment or an ethical violation to call a client a fool, and malpractice to tell him to stop if he could have gained something by not stopping. [FN. See Mich. Rules of Professional Conduct Rule 6.5 (1995), on treating persons "discourteously or disrespectfully because of [any] protected personal characteristic", cited in Andrew E. Taslitz and Sharon Styles-Anderson, "Still Officers of the Court: Why the First Amendment Is No Bar to Challenging Racism, Sexism and Ethnic Bias in the Legal Profession", 9 Georgetown J. Leg. Ethics 781, at 782, n. 4 (Spring 1996). Compare Root's view with that expressed in Matthew 5:22]

III. Will Covenant Marriage Be a Return to Fault?

A valuable contribution that divorce lawyers can make in the Covenant Marriage debate is to discredit the idea that it means a return to fault-based divorce. The only restriction on no-fault divorce in Covenant Marriage bills is a two-year waiting period, which several states already have anyway.

A. Fault in the Past: Dispelling the Mythology

The acrimonious, undignified system based on adultery, cruelty, entrapment, perjury and collusion, as depicted in such works as "Chinatown," may never have been prevalent, at least not in most states. Indeed, a Virginia State Bar Family Law Section Committee studying Covenant Marriage suggested that the risk of collusion would increase, but were unable to cite any incidences of it in their own state in the days before no-fault. They were only able to cite reported conditions in New York, from a time when adultery was the only immediate divorce ground. [FN: Covenant Marriage: Report of the Legislative Committee of the Virginia State Bar, December, 1998, p. 10] At any rate, such a perjury-based system could not be re-created now, with modern sensitivity to ethics in the post-impeachment era.

Indeed, fault, especially adultery, was not as important in the past as we may imagine, according to lawyers who have researched this question. When Virginia had a two-year waiting period, only 0.5 percent of divorce cases were contested and went to a final hearing, and desertion and two-year separation were by far the most popular grounds of divorce, according to a 1969 book by a Northern Virginia divorce lawyer. [FN William B. Clinch, Getting a Virginia Divorce, Middleburg, Virginia: Denlinger's, 1969, p. 6.] According to Miami attorney and no-fault advocate Stanley Rosenblatt's 1969 The Divorce Racket, before no-fault was allowed, 85 to 90 percent of divorces were uncontested. Cruelty and desertion grounds accounted for 73 percent of divorces, with adultery the third most common ground and four other grounds close behind it. [FN: Los Angeles: Nash publishing, 1969. pp. 8-9, 11. Rosenblatt thought his proposed no-fault "revolution" would greatly reduce the role of lawyers and judges, and drastically reduce employment opportunities for them, because the only issues left would be custody, property and support, simple issues which lawyers and judges had no particular expertise in. He also thought his proposal would be an "emancipation proclamation" for men, who were economically oppressed and "victimized" by "the little woman." Ibid., 47-48.]. Even if divorce were worse then than it is now, it only happened to half as many people. [FN: Ibid., p. 9; "According to the National Center for Health Statistics (1988: 2-5), the divorce rate rose from 2.5 per 1000 population in 1965 to 3.5 in 1970 to 4.8 in 1975." "No-Fault Divorce: Proposed Solutions to a National Tragedy," 1993 Journal of Legal Studies 2, 15, citing National Center for Health Statistics, 1988, 2-5, cited by Thomas B. Marvell, Divorce Rates and the Fault Requirement, 23 Law & Society Review 544, n.4, (1989); The marriage rate has fallen nearly 30% since 1970 and the divorce rate has increased about 40%. Ahlburg and DeVita, "New Realities," 4-12, cited in Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love. Regnery, 1996, p.5].

B. Fault in Today's No-Fault System

Also, we have not exactly done away with fault in the present system. Leaving aside the explosion of fault-like accusations and ill will in custody and support cases, fault divorce grounds themselves are still frequently filed and heard. A recent study by divorce lawyers Richard J. Byrd and Carol Schrier-Polak for the Fairfax County, Virginia Bar Association revealed that of those divorce cases in which any issue was contested, 76 percent involved fault claims. [FN: Reported in Richard J. Byrd, "Divorce and Delay: How Long Does It Take To Get a Divorce in Fairfax County?", Virginia State Bar Family Law News vol. 11 No. 2 p. 13 (Spring 1991)] An informal review of my own current cases revealed that half of them involved fault grounds which were not merely pled, but were actually either presented at a hearing or used as significant bargaining chips in a settlement.

C. Fault as a Device to Avoid Waiting Periods

A way to completely dispose of any concerns about an increased temptation to use fault grounds would be to make the waiting period apply not only to no-fault divorce, but to divorces on all grounds. There would then be no added advantage to using fault grounds. There is nothing in scripture or in any part of our secular culture, excepting the most frivolous and destructive, which urges hasty divorce in any situation, or deems it unvirtuous to forgive one's spouse. This solution is favored by Elizabeth Scott in her landmark article on "Rational Decisionmaking in Marriage and Divorce" [FN 76 Va. L.Rev. 9, 91, 92-93 (1990)] She puts it so strongly that it bears repeating: "The case for mandatory delay to promote thoughtful divorce decisions is probably as strong [when] the desire to leave the marriage is prompted by offensive behavior ... as it is when boredom or other attractions are the motivating factors." [FN Ibid. p. 93 She also notes that regardless of fault, the parties' children would usually benefit from the marriage continuing. Ibid. at 91]

D. Problems of Fault Evidence, Corroboration and Children: Illustration of the Drawbacks of Divorce Lawyers' Conservatism

Lawyers have a sensible and rational reverence for the institutions of their profession, but by the same token they may endow them with too much value or significance. Frequently one hears a maxim repeated as if it were an immutable law of the universe and a distillation of centuries of wisdom, when in fact it is just something a judge once said in a ten-dollar case about a goat. And even if it is something quite meaningless to lay people, lawyers and judges seem to begin to think of it as part of the moral landscape, and to treat non-lawyers who display ignorance of it as foolish, immoral, and undeserving of any relief in "our" courts. [FN It is my belief, based on my experience as a lawyer, that judges and lawyers also act this way from a well-trained instinct to find a villain in every case or situation, despite the officially "no-fault" nature of most family law cases and some tort cases.]

Judges and lawyers also display this attitude with clients who have different priorities from those we have been trained to serve -- such as non-economic objections to spouses' misbehavior. For example, only after the Virginia Court of Appeals changed the law to give adultery economic consequences did Virginia Beach divorce lawyer George Christie advise that "Lawyers need no longer attempt to throttle clients who express their indignation over such acts as marital infidelity." [FN "The Role Of Marital Fault In Determining Equitable Distribution", Virginia State Bar Family Law News Vol. 14, No. 2 p. 12. (Summer, 1994)] Our misplaced urge to "throttle" our wronged clients is perhaps inseparable from our aspiration to be "the wise representative ... of the legal system and the society." [FN Turow, in Nash, op. cit.]

As historian Lawrence Stone said of the "ancient and barnacled" divorce courts of England from the 14th to the 19th Century, "Ancient rules shaped the rigid categories and classifications into which the canon lawyers crammed the disorderly behavior of spouses, thus creating a 'thought style' which became part of the collective ethos of the group" (of divorce lawyers). This led them to defend laws that were commonly acknowledged to be "merely an invitation to illicit cohabitation and bastardy." [FN Road to Divorce: England 1530-1987, Oxford University Press, 1990, p. 16]

Like any other profession or trade, we are proud of the things we know that lay people don't, and of the trivia that we share in common with our colleagues. The danger in this is that we mistake obscurity for profundity, and sublimeness for importance. We may have too much affection for archaic, useless things that can wreak havoc in ordinary people's lives. The law concerning proof of divorce grounds is replete with such chaff.

In the debates on Covenant Marriage and divorce reform, lawyers have correctly pointed out ways in which reforms will interact harmfully with certain existing laws -- but they appear inadvertently blind to the fact that the laws causing interaction problems are easily changeable, and have little modern appeal except inertia. This is largely true of the property-division complications discussed below. It is wholly true of such archaic matters as collusion and corroboration, and their disturbing modern result, the spectre of children dragged into court to testify publicly against their parents.

The Virginia State Bar Family Law Section Committee studying Covenant Marriage cited an "unquantifiable" risk of this because fault conduct often occurs in the home, where there are no other witnesses except the parties themselves. [FN: Covenant Marriage: Report of the Legislative Committee of the Virginia State Bar, December, 1998, p. 10] But what is wrong with the parties being the only witnesses, as routinely happens in domestic violence cases that concern the same kind of conduct? Well, as committee member Lawrence Diehl explained, "divorce requires by statute the 'corroboration' of independent evidence ... ." [FN Letter from Lawrence D. Diehl to The Hon. James F. Almand, Chairman, Virginia General Assembly Special Joint Courts of Justice Subcommittee Studying Family Issues, Regarding H.B. 2624, June 30, 1997, p. 2.] This means that a divorce grounds case cannot be maintained with the testimony of a party and no other witnesses, unlike in any other kind of legal proceeding, criminal or civil, including even the other parts of a divorce case, such as custody. This is true even if the other party also testifies to the same facts, even if it is a purely no-fault divorce, and even if both parties ask for the divorce on the same grounds. [FN Va. Code Ann. §20-99(1), see also Alphin v. Alphin, 15 Va. App. 395, 424 S.E. 2d 572 (1992); Diehl, Swisher, & Cottrell, Virginia Family Law: Theory and Practice. §8-4(h), n. 27. The Harrison Company, 1991. p. 153] Why is this required? To prevent two consenting adults from "collusion", which means working together to get a divorce that they may not be entitled to. [FN Diehl, p. 153; Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646 (1986); Forbes v. Forbes, 182 Va. 636, 29 S.E. 2d 829 (1944)] This is nothing but a relic from the time when public policy discouraged divorce even in cases of mutual consent, and when the likelihood of collusion was perhaps greater because of the limited grounds for divorce.

The chance of children's having to testify against their parents may be remote -- though it is certainly not too rare in custody cases. Nonetheless, the Bar's raising of concerns about such possibilities is in fact not a problem for Covenant Marriage proponents, but an opportunity to add popular, pro-child relief to their legislation. Covenant Marriage bills should repeal archaic corroboration requirements in all divorces and simply provide that the role of corroboration and of party admissions shall be the same as in any other case. Expense-generating complexities such as condonation and recrimination could also be abolished. Children could be flatly prohibited from testifying about fault, since parties would now be able to testify. Children -- and adults, too -- could be spared much of the trauma of showing the family's dirty laundry in public by a provision that fault hearings not be open to the public. Such hearings could be held exclusively in less formal, less public juvenile courts, which would not even create a public record of the "dirty laundry," or could continue to be handled by Commissioners in Chancery (as they are called in Virginia, or Masters or Referees, as they are called in other states).

IV. Marriage Decisions: Will Covenant Marriage Make Better Marriages, or Trap People In Bad Ones?

A. What We Don't Know

Lawyers' experience as lawyers gives us no particular knowledge of what people's state of mind is when they marry, and how seriously people consider the possible results. Many critics of covenant marriage proposals, including divorce lawyers, speak of marriage as if it were a frivolous act engaged in by silly people. They predict that couples will choose covenant marriage merely as a symbol of how strong their romantic love is at the time, so that it will merely reinforce their giddy state of denial of the possibility of divorce, rather than making them consider marriage and the possibility of divorce more soberly, as it was intended to. This is an idea that certainly is true about some people, and it to be expected that research will reveal how many people choosing covenant marriage have this attitude. Covenant Marriage legislation should ensure that such people get tough pre-marital counseling and interrogation to make them deal with reality. But while this prediction certainly may have some merit, it is not something on which lawyers have any specific knowledge. [FN Lawyers know a lot about the decision to divorce and quite a bit about the decision to physically separate, but they know a lot less about the decisions that clients make when getting married. What they do know about this comes from a very biased pool.]

However, there are some particular kinds of situations that divorce lawyers do have partial knowledge of, and which are highly relevant to Covenant Marriage proposals:

B. Repeat Offenders.

By far the most common observation that divorce lawyers make about marriage is that their clients seem to keep marrying the same kind of people. They learn this from listening to their clients who are on their second, third and fourth divorces and by dealing with their clients' current spouses in litigation against former spouses.

C. "Growing Apart" or Changed Personality.

By the same token, I as a lawyer have seen very little evidence of the idea, used to justify no-fault divorce, that people simply "change" over time and "grow apart", so that they are not the same people who married each other. This notion was treated very seriously by Elizabeth Scott in "Rational Decisionmaking in Marriage and Divorce," [FN 76 Va. L. Rev. 9 (1990)] in which she laid out the theoretical groundwork for Covenant Marriage and recommended legislative and contractual "precommitment" restrictions to reduce divorce. Cases where I have seen this "growing apart" generally have been ones where the children are grown.

Other cases of a sudden change in personality are: a) ones in which the new spouse did not exactly change, but rather showed his or her true colors shortly after the marriage (colors which usually had been evident to everyone else all along); b) cases of a radical change in behavior at the time of the first pregnancy or childbirth; or c) sudden changes caused by behavior covered under fault divorce grounds, such as addiction, crime or adultery. The model in which spouses change so much that they are not the same two people who married [FN Scott, op. cit.] does not occur, at least in the marriages which the great majority of proposals to restrict no-fault divorce are aimed at (that is, non-mutually-consenting people with minor children).

D. How Premarital Education Can Help.

The cases of "character change" described immediately above are precisely the kinds of problems which can best be prevented or revealed ahead of time by rigorous pre-marital education, which is an element of all current and recent Covenant Marriage proposals. [FN Studies are just beginning to be done on the effectiveness of counseling, and so far it looks as though it has great potential. As Stanley & Markman note: "Our studies show that marital failure is predictable to a surprising degree--with up to 90 percent accuracy in classification of future outcomes for research samples, using only premarital data. Hence, for many couples the seeds of divorce are present prior to marriage. The factors that predict marital failure range from relatively static dimensions, such as history of parental divorce and differences in religion, to more dynamic dimensions such as communication and conflict management patterns. The dynamic factors make the most attractive targets for premarital counseling because these factors are both highly predictive of divorce and amenable to change. In essence, it is not how much couples love each other, but how they handle conflict that best predicts future marital distress or divorce -- and conflict is inevitable." Scott M. Stanley & Howard J. Markman, Can Government Rescue Marriages? University of Denver Center for Marital and Family Studies, 1997] Nearly all the no-fault cases of sudden change which lawyers encounter are the "true colors" phenomenon, or unhealthy reactions to common life events such as childbearing, as described above. Those who feel that they failed to discover their spouse's true nature before the marriage, or who find they cannot cope with the stresses of normal things that occur in marriage, such as childbearing, presumably are those whom current forms of pre-marital counseling would help most. Most such programs currently being promoted, such as PREP and PREPARE/ENRICH, feature hundreds of probing questions asked of the couple in addition to skills training. Studies have reported that the use of these counseling programs in organized "community marriage policies" greatly reduces the divorce rate in certain cities that have the policies, and also causes 20% of participants to break off their engagements. [FN Michael J. McManus, Marriage Savers, Revised Edition, Grand Rapids: Zondervan, 1995, pp. 308-09, 316.]

V. The Decision To Leave a Marriage: How Can Covenant Marriage Provide an Effective Deterrent to Divorce?

A. People's Responsiveness To Law and Legislation

"Family law is highly interstitial. That is, there are only a few points in most people's lives when family law directly touches them." [FN Carl E. Schneider, The Law and the Stability of Marriage: The Family as a Social Institution, in David Popenoe, Jean Bethke Elshtain, & David Blankenhorn, Promises to Keep: Decline and Renewal of Marriage in America (Rowman & Littlefield,1996). at 206.]

In trying to legislate so as to affect human behavior, we must ask such questions as: When legislators decide to pass a law to send a message, is anybody going to be listening? And when do they start listening -- at what point in the cycle of behavior that we are trying to change? When making decisions about marriage and divorce, when do they look to government for guidance and definition? When do people bargain "in the shadow of the law?" [FN Robert H. Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).] And when do they act in total ignorance of the law?

What parts of the law become part of the culture that divorce clients carry with them and consider when making choices in their lives? Lawyers know something about this from their contact with clients, although other disciplines may have equally valuable insights on this question when they turn their attention to it. And conversely, lawyers know which of our common cultural notions about divorce law -- which are often shared by legislators -- are realities in the law and practice of their state, and which are misconceptions or anachronisms.

With the insight that divorce lawyers can bring from their experience, a wider discussion can begin concerning when and how the law should try to conform to the culture, and when and how it can change the culture.

B. Lawyers' Knowledge Of Clients' Life Decisions

Divorce lawyers know a great deal about some of the life decisions divorcing people make, and why. [FN This is not just because lawyers work closely with clients; it is because lawyers, and divorce lawyers especially, are one of the few professions nowadays who pride themselves on describing clients' problems not in therapeutic jargon but in layman's terms, and trying to cut to the heart of the matter. They do this when assessing potential cases, when negotiating terms of a settlement with the other side, and in court. In family law cases, which turn not on a few key facts but usually on an infinite number of facts, taking into account almost everything about the spouses and their situation, lawyers try to get the whole picture. They investigate what the client's relationship has been like, what both sides' motives and priorities are, and what kind of things might be going on that the client himself or herself is blind to.] Thus, if we are attempting legislation that affects the life decisions that clients make and how they make them, lawyers can tell us a lot about how some of those decisions are made, and what clients do and don't think about.

Clients who want a divorce have usually decided firmly to get one before they come to a lawyer. There are quite a few who are not completely decided, but rarely do they consult a lawyer about whether they will ultimately be able to get a divorce, or whether it is advisable to leave the marriage. They never ask if divorce will be worth the wait. By this point, they are not looking to the law to lead them to virtue [FN Katherine Spaht, "For the Sake of the Children: Recapturing the Meaning of Marriage" 73 Notre Dame L.R. 1547 (July 1998)]. What they ask me is: How do I use the law to get what I want, how long will it take, what will it cost, and what county should I file in? [FN Occasionally a few of the wiser ones ask, "What can happen to me if I start this process?"]

C. Reform Must Change People's Minds Before They Consider Divorce

Therefore, it seems essential that any reform aiming to affect or prevent the divorce decision must be one that people will be aware of before they see a lawyer, and before they decide to separate and begin ending the marriage. It should be communicated at the time of the marriage (in the offices where marriage licenses are obtained), and so pervasively through the media that it changes the culture of marriage and the basic rules of life. Such results have been accomplished with domestic violence, drunk driving, and smoking, by such means - but not by legislation alone, and not by legislation that's explained to people only by their lawyers.

Divorce reform, after all, is not aimed at making divorce even harder for people whose marriages are already irretrievably broken. Rather, it primarily targets people who are not yet at the point of separating or consulting lawyers. It aims to make investment in a marriage less risky, and potentially destructive behavior less rewarding. It changes the perceived incentives in marriage by giving more mutual protection, more individual self-determination for those who do not wish to be pushed out of their marriage, and fewer deceptively easy exits. (It is worth noting that the stage of marriage which divorce reform primarily aims to affect is not one that divorce lawyers have a lot of expertise in.)


VI. Waiting Periods: A "Cooling-Off" Period for Reflection and Reconciliation?

[Note: Since this article was written there have been some developments in this area. Some economists at Berkeley and Yale are doing a study of whether state waiting periods have in fact helped prevent divorce, following up on earlier work predicting that they would. Americans for Divorce Reform has found that the states with long waiting periods all have very low divorce rates relative to the U.S. average, as do several states with short waiting periods. We are completing work on a comprehensive waiting period proposal designed to avoid the drawbacks pointed out in this article. Also, the most prominent "marriage penalty" in federal tax law is being phased out.].

Current covenant marriage proposals allow people to choose a slightly longer waiting period for unilateral no-fault divorce, although they do not let them choose a more truly traditional restriction such as "until death do us part" or until the children are 18. [FN One rare exception to this is the Maryland Covenant Marriage bill, 1999 H.B. 1076, which lets couples choose to completely forgo the option of no-fault divorce.] Nearly all covenant marriage bills, including the two already enacted, offer a two-year waiting period, though a bill proposed in Minnesota in 1997 offered a five-year period and a 1999 Texas bill offers three years. [FN 1997 MN S.F. 2935; 1999 Texas H.B. 350] Lawyers have considerable expertise concerning the effects of waiting periods, since nearly all states already have some form of waiting period.

Covenant Marriage aims to strengthen the public policy in favor of reconciliation between estranged spouses. [FN See also I Cor. 7:11]. Lawyers have an intimate but incomplete experience with their clients' reconciliations, since when a reconciliation is successful the lawyer generally does not hear from the client. In lawyers' experience, reconciliation is rare once the parties have gone to a lawyer.

A. The Theory Behind Covenant Marriage and Waiting Periods

The leading theoretical essay predicting the behavioral effects of waiting periods and other features of Covenant Marriage is "Rational Decisionmaking in Marriage and Divorce", a 1990 article by Elizabeth Scott. [FN 76 Va. L.Rev. 9 (1990)] This article appeared in the same year that the first Covenant Marriage bill was introduced, in Florida in 1990, and it may well be the first proposal for such legislation in the U.S. or in recent history.[FN: Florida H.R. 1585 (1990). Similar legislation was proposed by Léon Mauzeaud in "Solution au Problême du Divorce," in Recueil Dalloz, Jurisprudence 1945, pp. 11-12, and by Henri Mauzeaud in Contre-Projet: Travaux de la Commission de Reforme du Code Civil 498 (1947-48), as Katherine Spaht has noted in "For the Sake of the Children: Recapturing the Meaning of Marriage", 73 Notre Dame L.R. 1547, 1566 (July 1998).]. Scott makes several observations about how people can form more reliable, rewarding relationships through rational "precommitment strategies" that limit their later selves' power to stray from their original commitments. [FN Scott, op. cit. ]

Most of Scott's observations are astute and practical, but one of her propositions lacks something in the way of reality-testing. Scott argues that cooling-off periods chosen ahead of time by the parties will help people stick with their marriages and increase their sense of security. She explains that people know ahead of time they may be temporarily overtaken by emotion or whim, and that they may want to bind themselves so that they will only be allowed to make a dangerous, important decision conclusively if they are able to stick with it for a certain non-binding, probationary period.[FN Ibid.] Thus she is hopeful that voluntarily-chosen waiting periods of a few years, rather than more far-reaching agreements to give up the right to no-fault divorce when there are children or is no mutual consent, can reduce divorce and enable reconciliation.

B. The Dynamics of Separation and Reconciliation

What Scott failed to realize, though, is that the spouse who decided to leave, and who spends the waiting period soberly reevaluating that decision, is not the only moving part of her machine. In our present non-binding marriage system, each party's incentive is to continually re-evaluate his or her own commitment in response to the other spouse's apparent level of commitment. [FN On the role of committment see Susan Sprecher, "'I Love You More Today Than Yesterday': Romantic Partners' Perceptions of Changes in Love and Related Affect Over Time," 76 Journal of Personality and Social Psychology No. 1. (Full text available from the APA Public Affairs Office or at http://www.apa.org/journals/psp/psp76146.html.)] The left-behind spouse is usually withdrawing from the relationship and trying to move on to new things, adjust, and rebuild an independent life. After all, that is what everyone around him or her says is healthy and normal. He or she may be reluctant to get burned again, when offered a reconciliation which may not last. Also, because of our adversary legal system, many other matters may be poisoning relations between the spouses.

C. What Message Do Waiting-Period Laws Send?

Americans certainly are fond of talking about how other people should have "cooling-off periods" for guns, marriage and divorce, among other things, but I have not observed any evidence that our clients actually use any such legislated period for its intended purpose, once they have made up their mind and declared what they want to do. Perhaps it is not that they have a defiant attitude towards the law -- it just does not occur to them that they can or should look to the law for parent-like advice on these particular decisions. However, this does not necessarily mean that people do not plan and carry out their own cooling-off periods on their own initiative before deciding to divorce.

Even a long waiting period, such as the five-year one in the 1997 Minnesota Covenant Marriage bill [FN 1997 MN S.F. 2935], would still probably send the message that divorce is an entitlement, and that the government is simply placing a burden on that entitlement. A waiting period that is based on a number, rather than on the presence of children or mutual consent, is not a law that says what spouses' obligations to each other are. It gives no rights or protected expectations to anyone, and says nothing about any moral duty to other people. It simply says, if you want to be divorced five years from now, move out now.

D. Lawyers and Clients Don't Think It's a "Cooling-Off" Period.

How many divorcing people see the waiting period as a cooling-off period in which reconciliation is possible? What lawyers seem to notice most frequently is the case of the "trial separation" initiated by one party and reluctantly accepted by the other. The conventional wisdom lawyers repeat to each other is that these things are not temporary trial separations; they are nearly always a way to give the left-behind spouse time to adjust to the end of the marriage, or perhaps to give the departing spouse time to leave without being harassed, questioned, begged or lectured too much by the other spouse, who might otherwise be apoplectic. [FN Again, lawyers only see the clients who come to them, not a scientifically selected cross section. However, one thing lawyers learn in practice, and which forms part of the conservatism of the profession, is that a truism or folk belief within the profession, even if it has not been validated by a disinterested, empirical study, still counts. It should probably be relied upon if lawyers have placed genuine reliance upon it in the past in making decisions in which they or their cases have some stake. On the other hand, it is possible that some such adages repeated by lawyers are relied upon only by those who take their advice and not by the lawyers themselves, or are only used in political arguments.]

Lawyers' experience would appear to suggest that the legally required interval between separating and filing for divorce is not the hoped-for cooling-off period that allows for reflection and encourages reconciliation. Of course, some people do separate and reconcile during this period, but those people often have not yet consulted a lawyer and learned what the specifics of the law are. I have never had someone consult me and be deterred from ending a marriage by the waiting period -- my only potential clients exhibiting any particular interest in waiting periods are Marylanders trying to avoid that state's two-year period and others interested in going to Nevada or Mexico for a quickie divorce. As one Pennsylvania attorney has written, "The waiting period seldom causes the parties to reconsider and reunite. We should be honest about that." [FN Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Thu, 22 Oct 1998 12:32:07 EDT Re: Waiting periods for no-fault divorce]

E. Prospects for a True "Cooling-Off" Mechanism

If waiting periods really are intended for reflection and reconciliation, perhaps a way could be found to do without the requirement that the couple be living apart and in abstinence. Perhaps, instead, the waiting periods could begin with some kind of formal declaration of intent that would initiate a probationary period for attempting to save and reevaluate the marriage. During such a period, and even after filing for divorce, people should not be penalized for trying to reconcile and to see if they can live together tolerably and affectionately after all.

F. Combined Effect of Waiting Periods and Marriage Penalties on Reconciliation

Lawyers do not explicitly discourage reconciliations, at least in cases that don't involve abuse or bad-faith behavior. But they nonetheless are compelled, by their ethical duty of competent and zealous advocacy and their interest in preventing malpractice suits, to warn their clients that reconciliation attempts will likely stop the running of the separation waiting periods, so that the waiting period has to begin all over again, forcing them into another year of "dead" marriage and another year of suffering from the tax laws' marriage penalties.

Even though it has been widely reported that more couples get a marriage "surplus" than a marriage penalty (at least from the most commonly cited source, the differences in the standard deduction and progressive rate structures), somehow it always works out that it is the penalty that the lawyer feels a duty to advise clients of and avoid if possible. [FN There are also marriage penalties in social security benefits, the earned income credit, and for various deductions, including the new student loan interest deduction.] Perhaps this is because of who generally tends to get divorced more, and certainly it has something to do with the fact that lawyers are ordinarily expected to want to complete cases as fast as possible unless they've been instructed otherwise. Also, of course, it takes two to agree to file a joint return, and if things are still so undecided that you don't know whether you are going to reconcile or not, then you also don't know whether, if you do separate again, things will still be amicable and agreeable so that the other spouse would agree to file a joint return.

Nonetheless, whatever the reasons, it's widely remarked that court houses all are seized by a "Christmas Rush" in which clerks and judges cast off their habitual obstructionism in the forgiving spirit of the season, and do their best to see that people get their divorces by New Year's Eve.

Lawyers preparing for the Christmas rush warn their clients that even attempts at reconciliation, if they involve doing anything in which the couple holds themselves out to others as man and wife (which can be hard to avoid when they still are man and wife), can spoil Christmas by delaying the divorce for another year -- even if there is mutual consent in favor of proceeding with the divorce. Thus waiting periods like those in Louisiana's Covenant Marriage law and in most current no-fault laws, which have no mutual consent exceptions, may do more to deter reconciliation than to "opportune" it. [FN While it is outside the scope of lawyers' knowledge and expertise to do so, one may speculate on whether and how much this predicted chilling effect of waiting period laws may be counteracted by the marriage counseling that Covenant Marriage requires, and which the waiting period allows some additional time for. Louisiana 1997 HB 756, Section 307. ]

G. The Mutual Consent Issue -- Experience in States with Long Waiting Periods

Lawyers can boast of considerable current experience with waiting periods, because nearly all no-fault divorce states already have waiting periods in one way or another. [FN Linda Elrod and Robert Spector, "A Review of the Year in Family Law", 31 Fam. L. Q. 613, 663 (Appendix Table 4) (Winter 1998)] Most are for one year, but ten states require 18 months or two years -- which is the maximum waiting period specified in Louisiana's Covenant Marriage law for unilateral no-fault divorce in families with children. [FN Ibid.] In addition, Rhode Island, Texas and Utah require three years. [FN Ibid.]

A query on the effects of long waiting periods to the American Bar Association Family Law Section members-only listserv elicited several responses from various states about the practical effects of these 18-month to three-year periods. This listserv excludes from participation, or even perusal, non-members of the Family Law Section, and even Section members who are not lawyers. Precisely because of its exclusivity, and because it includes many long-time officers of the Section who are leaders in the profession, its content is considered highly reliable, on-point and authoritative. [FN: Because of the listserv's Unauthorized Practice of Law and malpractice liability-avoidance rules, I will cite messages not by author, but only by subject, date and time.] None of the participants mentioned that waiting periods facilitated reconciliation or reconsideration after "cooling off", but several noted that a longer waiting period that could be cut short by mutual consent gave aid and comfort, and bargaining power, to left-behind spouses. This mutual consent exception is provided by Arizona's Covenant Marriage law, but not Louisiana's [FN Louisiana 1997 HB 756; Arizona 1998 S.B. 1133].

Pennsylvania requires 90 days with consent, two years without. "The waiting period seldom causes the parties to reconsider and reunite. We should be honest about that. There are better ways to save marriages -- particularly when children are involved, " said one Pennsylvania attorney, who nevertheless favored the two-year period because of the emotional space and financial support provided to the abandoned spouse, and because of "the policy statement it makes that marriage is intended to be a major and long term commitment." [FN Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Thu, 22 Oct 1998 12:32:07 EDT Re: Waiting periods for no-fault divorce] Another Pennsylvanian added: "For the dependent spouse, this is helpful, but for the one who wants out, it's a drag." [FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Sat, 10 Oct 1998 07:03:39 EDT Re: Waiting periods for no-fault divorce]

Illinois likewise requires six months with consent, two years without, living "separate and apart" (but not necessarily in separate abodes.) [FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Sun, 11 Oct 1998 16:05:50 -0700 Re: Waiting periods for no-fault divorce] Often, when asked to consent, "clients object for religious or moral reasons or to keep on the spouse's health insurance or to wrangle more money."[FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Sat, 10 Oct 1998 01:11:41 EDT Re: Waiting periods for no-fault divorce] In Maryland, "cooperation gets a one-year divorce, non-cooperation requires two." [FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Sun, Sat, 10 Oct 1998 10:48:58 -0400 Re: Waiting periods for no-fault divorce]

However, there were no such responses from states that have only a slight consent differential in their waiting periods, such as Virginia, which allows a divorce six months sooner if there are no children and there is a complete separation agreement covering all issues. [FN Va. Code Ann. 20-91(9)(a)] This is very different from mere mutual consent to the divorce itself, and the six month difference, in a process that often takes more than a year, probably does not give a significant incentive. Most Covenant Marriage bills, such as Virginia's, leave this slight differential in place, by adding a year to the existing one-year period and to the existing six-month period. [FN Virginia General Assembly 1999 H.B. 2763]

Early academic pioneers of divorce reform and Covenant Marriage, such as Elizabeth Scott [FN "Rational Decisionmaking in Marriage and Divorce," 76 Va. L.Rev. 9 (1990)] and Martin Zelder [FN The Economic Analysis of the Effect of No-Fault Divorce Law on the Divorce Rate, 16 Harvard J. Law & Pub. Pol. 241 (Winter 1993)], cited increased bargaining power of the innocent spouse as a major benefit of waiting periods and other restrictions. As noted in the listserv postings quoted above, divorce lawyers would tell you that a waiting period or other restriction on divorce, whether part of a Covenant Marriage option or not, has this equitable effect only if the couple can escape the restriction by mutual consent, and can thereby get divorced substantially earlier as a result of their bargain.

Zelder acknowledges this, but instead of advocating a straightforward mutual consent exception, he argues that in practice, that was what we had before no-fault in the alleged bad old days of collusion, perjury and entrapment. He shares a widely-held belief that in practice, the fault system was actually a mutual consent divorce system in which both spouses could collude to falsify fault if they wished. Thus he advocates a simple repeal of no-fault in order to return us to the old sexual economy in which wives "gave" husbands a divorce in return for a generous financial settlement. [FN Ibid. at 246 and n. 12.]

Any divorce lawyer, however, could point out that those bad old days cannot come back, if in fact they ever existed. The years since no-fault have seen a revolutionary tightening and increased codifying of legal ethics; lawyers know that their behavior is under a microscope. Perjury and subornation are not exactly respectable these days. Furthermore, advocating a law on the grounds that it encourages people to bear false witness in court for their mutual benefit simply does not dovetail very well with divorce reformers' aim of "opportuning virtue". [FN Katherine Spaht, "For the Sake of the Children: Recapturing the Meaning of Marriage", 73 Notre Dame L.R. 1547 (July 1998)] If you want to encourage efficient and fair settlements through a mutual consent exception, divorce lawyers would say, you should simply do it, straightforwardly.

H. Economic Side Effects of Waiting Periods

ABA lawyers from various states also reported minor complications in property division arising from lengthy periods between separation and divorce. Illinois's system is "a problem for the pensioned spouse as assets get divided as of the date of judgment, not the date of separation." [FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Sat, 10 Oct 1998 01:11:41 EDT Re: Waiting periods for no-fault divorce] "New Jersey has an 18 month waiting period. One problem with that is caused by the fact that many judges adhere strictly to the 'date of marriage to date of complaint' rule for determining and valuing marital assets." [FN: Listserv posting to ABA Family Law Section Lawyers <FAMLAWESQ@MAIL.ABANET.ORG> Fri, 09 Oct 1998 17:52:09 -0400 Re: Waiting periods for no-fault divorce] In Maryland, the spouse who remains in the house can be forced to pay rent to the one who left for the time between separation and equitable distribution. This, among many other indignities suffered by left-behind spouses, has led several of them to start a group called "Marylanders for Divorce Reform," which advocates Covenant Marriage and other reforms.

Most of these problems are correctable quirks that appear only in a few states and have been avoided by most states. Nonetheless, in a Covenant Marriage regime that requires a lengthy separation before even filing for divorce, states should consider measures to allow more economic normalcy and less limbo during that period, and eliminate state-specific peculiar institutions that complicate or prejudice the division of property. [FN A highly innovative proposal for a system to expedite property division is Betsy H. Phillips's "A Modest Proposal by a Troubled Divorce Lawyer," Virginia State Bar Family Law News v. 14, No. 4, p. 4 (Winter 1994-95)] Increasing the use of the date of separation for valuing property, and as the end of the period in which property acquired and pensions accrued are deemed marital, would eliminate many of these problems.

This is one area in which it will be very helpful to have divorce lawyers involved in the reform process, to point out particular facets of their state's property division laws that are already creating unnecessary complications, and to fix them before a longer waiting period makes them worse. This of course will require caution. Reform efforts should not get bogged down in attempts to solve problems that are not directly related to what a reform bill does. Even proposed solutions that are generally seen as pro-marriage, such as punishing fault in property division or rejecting interspousal tort liability, can awaken otherwise uninvolved opposing constituencies and can mire a bill in years of unsympathetic "study". It would likewise be foolish to turn the whole drafting process over to divorce lawyers who are not actually very interested in divorce reform, and let them turn a reform bill into something completely different that addresses several of their own pet concerns and perhaps leaves out reform altogether.

Divorce lawyers are indispensable for pointing out problems, but we must realize that there are often fairly simple solutions that they may not be volunteering information about, or may not have even tried to think about.

VII. Counseling Requirements in Covenant Marriage: Lawyers' Advice Within and Without Their Expertise

The Virginia State Bar's consideration of Covenant Marriage legislation shows both how useful, and how useless, lawyers' input can be.

A. Counseling on legal grounds for divorce

Virginia's 1998 Covenant Marriage bill, like many others, required premarital counseling to include "the legal grounds for terminating a covenant marriage by divorce." [FN Virginia General Assembly 1998 H.B. 1056, p. 2, lines 9-11, in proposed new Code § 20-37.4(A)(ii)]. This is probably because it was copied almost entirely from Louisiana's bill, which also introduced four additional fault grounds, unlike Virginia's. [FN Louisiana 1997 HB 756]

Lawyers on both sides of the issue complained to the bill's sponsor that the counseling on this point would have to be so complex that it would be Unauthorized Practice of Law unless done by lawyers. [FN: Covenant Marriage: Report of the Legislative Committee of the Virginia State Bar, December, 1998, p. __; Letter from John Crouch to The Hon. Robert McDonnell, October 21, 1998, p. 1] This was not mere protection of our monopoly, but an honest warning that our divorce laws, which appear simple in the statute books, are embarassingly complex and unpredictable when actually applied -- even on the basics. This is because of corroboration requirements, the many defenses, judges and comissioners' discretion, their unpredictability, and their pervasive disapproving attitude towards fault grounds. And when people are told about the divorce grounds, they often ask the very questions that only lawyers can even try to answer. "What if she told me 'get out'? What if he admits the adultery? What about separation under one roof? What's 'condoning' adultery? What if we didn't get a legal separation?" [FN Crouch letter, supra, p. 1]

Members of the State Bar study committee recommended that couples instead be given a pamphlet, written by lawyers under the auspices of the State Bar, that would explain the divorce grounds. [FN Covenant Marriage: Report ... supra, p. ___] I, on the other hand, proposed that only the difference between the divorce grounds in covenant marriage and in casual marriage be explained, and that rather than having a priest, therapist or lawyer do it, the clerk issuing the marriage license could simply say, "The difference is that to get a divorce, the waiting periods are one year longer and counseling is required." [FN Crouch letter, supra, p. 2]

In the 1999 bill, the sponsor and his co-sponsors took heed of all this advice. What they chose to do was to have the counseling include not an explanation, but simply "A reading of the grounds for terminating a covenant marriage contained in §20-37.8" [FN Virginia General Assembly 1999 H.B. 2736, p. 1, lines 40-41, in proposed new Code § 20-37.4(A)(v)] This is a wise recognition that we cannot guarantee to people, or even to lawyers, a full and sufficient understanding of the law on some subjects, and that a reading of it is sometimes only a reading.

B. Marriage Counseling Before Divorce: What we know.

Divorce lawyers have some knowledge of the effects of bad therapy and bad therapists, although none of this knowledge pertains to pre-marital counseling. But it does provide important insights on how to structure the pre-divorce counseling requirements. Many of our cases come to us because one spouse's therapist helped focus the patient's discontent on the other spouse and choose to end the marriage. [FN On this point, see "Therapy Can Be Hazardous to Your Marital Health!", Bill Doherty's keynote address at the July, 1999 Smart Marriages conference held in Arlington, Virginia by the Coalition for Marriage, Family and Couples Education. Though this speech has not yet actually been delivered at the time this is being written, it has already engendered heated discussion, which can be found in Diane Sollee, "How Therapy Can Be Hazardous", at http://archives.his.com/smartmarriages/0475.html, and Diane Sollee, "Therapy can be harmful ...responses", at http://archives.his.com/smartmarriages/0489.html] Often the spouse who ultimately ends up leaving prevails on the other to come and meet with the therapist. In such cases, it is often unclear what the different people involved are trying to achieve by the "counseling", and the dynamics can be unhealthy and engender distrust. And of course, we have many other cases where we are told that marriage counseling, for whatever reason, did not work. As with reconciliation, lawyers are disproportionately exposed to the cases where it doesn't work out.

If there is anything divorce lawyers can usefully contribute on the counseling issue, it is that any marriage counseling that a covenant marriage bill requires (the counseling required before divorce, not the premarital counseling) should not be by one spouse's therapist, but should instead be by a therapist, marriage educator or clergy member who is initially consulted by the couple and meets with both of them together. This norm is already reflected in our rules on mediation, especially mediation performed by lawyers, and for similar reasons [FN Virginia Model Rules of Professional Conduct, Rule 2.10(c) (Adopted by the Supreme Court 1999, effective 2000)]. Similarly, the spouses should be able to know for certain that the marriage counselors, like mediators, will not be able to testify in a future divorce or custody case.

C. Who Performs Premarital Education: Priests, therapists, witches, or marriage educators?

[Note -- for the latest developments on this issue see "Model legislative provisions on pre-marital education"]

Bar groups have also lobbied energetically, with considerable success, about the issue of who performs the premarital counseling -- a question on which lawyers have no particular expertise at all. In Virginia, the 1998 bill allowed any counseling to be performed either by persons authorized to perform marriages, or by "licensed professional counselors or marriage and family therapists." [FN Virginia General Assembly HB 1056]

For clergy, Virginia bar members recommended using the language from Florida's 1998 marriage counseling law, which allowed state-sponsored marriage courses to be taught by "An official representative of a religious institution which is recognized under s. 501(c)(3) ... if the representative can demonstrate relevant training." [FN Florida Statutes Section 61.21,(5)(a)(3), as amended 1998 by HB 1019] (A First Amendment lawyer, of any political persuasion, probably would not recommend this government entanglement with pastors' training.[FN Lemon v. Kurtzman, 403 US 602 (1971)]). They also noted with concern that under a recent Virginia court decision, witches can be marriage celebrants and thus might engage in premarital counseling under the bill. They did not consider similarly requiring marital and family therapists to have "appropriate training".

In response, the sponsors of the 1999 legislation doubled the hours of counseling required from four to eight, and changed the language on marriage celebrants to include only clergy, which may or may not exclude witches.[FN The sponsors borrowed this approach from the 1998 Georgia Covenant Marriage bill, HB 1138, at the suggestion of one of the most prominent opponents of Covenant Marriage, Lawrence Diehl, made in a letter by him to Delegate Robert McDonnell, October 7, 1998, p. 1]

Perhaps partly because of the bar's expressed concerns about "unqualified persons being counselors", [FN Letter from Lawrence Diehl to Delegate Robert McDonnell, October 7, 1998, p. 1] the language on marriage and family therapists was unchanged, even though it restricts the right to perform counseling to family counselors and therapists "as defined by [Virginia Code] §54.1-3500." That statute in turn defines the term as "a person trained in the assessment and treatment of cognitive, affective, or behavioral and emotional disorders within the context of marriage and family systems through the application of therapeutic and family systems and techniques" -- a definition which overlaps only partially and incidentally with what premarital counselors do. This restriction on counseling is something the original Louisiana bill was careful not to include, having left the term "marriage counselor" intentionally undefined.[FN Louisiana 1997 HB 756; Section 273(A)(2)(b); author's conversation with Prof. Katharine Spaht, September 1998]

Bar groups' approach to the counseling question may just reflect a cultural or class-based belief in the value of therapy, or a tendency to have confidence in a profession whose training and standing is comparable to our own. Or possibly the idea is to make Covenant Marriage so bureaucratic that few people will go through with it. But they do not exhibit a depth of experience that would make divorce lawyers particularly qualified to deliver their collective opinion on the question of premarital counseling.


VIII. Conclusion: Specific Recommendations

I hope I have demonstrated that legislators and academics need to listen carefully to divorce lawyers' comments on reform proposals. Specifically, they need to listen for indications of whether the lawyers are speaking from experience, or whether they are giving their off-the-cuff political opinions just like anyone else. Divorce lawyers on both sides of the issue are, by definition, not disinterested.

While divorce lawyers are a necessary part of the process, it is also necessary to have some knowledgeable lawyers in the lawmaking process who genuinely support the reforms they are critiquing or shaping. Certainly, divorce reform is a refreshingly non-partisan, collaborative arena in which people who favor different solutions to a commonly recognized problem are able to get a lot of good advice and information from each other. In Virginia, covenant marriage's sponsors get their drafting advice from their diehard opponents, who in turn get their information on it from materials collected and disseminated by its supporters. Nonetheless, as divorce lawyers themselves always have to tell their clients, it's not a good idea to get all your advice from your adversary.

Nonetheless, several specific recommendations for improving reform proposals can be drawn from divorce lawyers' experience:

Divorce lawyers' intimate knowledge of their clients' life decisions regarding marriage and divorce indicates that fault and no-fault divorce -- and bad marriages -- could probably be greatly reduced by premarital counseling that (A) interrogates couples so as to force potential conflicts to the surface, and (B) trains them in how to treat each other and (C) how to negotiate the many conflicts and challenges that arise in any marriage. All marriages, not just covenant marriages, could be helped by such preparation.

Our experience with marriages arising from short courtships also indicates that waiting periods for marriage might be helpful. But preventing divorce is not the only relevant public policy concern. Laws requiring or encouraging premarital waiting periods, age minimums, or counseling would have to be written very carefully, if at all, so as not to send the message that "it is better not to marry," especially for people who would otherwise have illegitimate children. [FN Matthew 19:10]

On marriage counseling when a divorce is imminent, divorce lawyers can make a few recommendations, though our knowledge of the subject is far from comprehensive. The counselor should not be one spouse's therapist, and must not be identified more with one spouse than the other. (If the counseling is state-imposed, there will be less of a sense that it is one spouse's project.) The counselor must be overtly trying to make the marriage work if possible, and must have a duty to the couple, not just to the individuals. The counselor should not be neutral on whether the marriage ends. [FN See note on Doherty, above].

Waiting periods will probably be effective for some reform goals but not so much for others. Partially this depends on how they are written. The way they operate needs to be refined. The pupose of allowing reflection and reconcliation is not served by waiting periods as such, especially the way they are written in current law and current reform proposals. If waiting periods are to be of any use for this purpose, a way must be found to restructure or redefine them so as not to discourage reconciliation attempts. Correcting all the various marriage penalties in federal and state tax law, and in Social Security, would also help remove deterents to reconciliation.

If the waiting period is going to be short, up to three years or so, it should apply to fault as well as no-fault divorce. So should counseling requirements. The goal of providing time for reflection and reconcliation, preventing hasty decisions, is still generally considered a worthy one even when there has been fault. Also, removing the tempting, usually illusory prospect of a quick fault divorce would mean that reforms would decrease fault litigation, not increase it.

The spectre of fault litigation engulfing the beleaguered children of divorce can also be laid to rest by modernizing and civilizing the way evidence of fault is taken. It should not be taken in open court or in a way that will be made public. The institutions for having the evidence heard discreetly and informally already exist. If we don't want children testifying about fault, we should make a clear rule that says they can't. How, then, can a fault case be proven? The same way as any other case involving the same kinds of facts, if we repeal divorce's archaic and unique corroboration rules.

But mutual consent, not fault, should be the primary way out of a waiting period, or indeed out of a marriage. Divorce lawyers' experience shows that allowing a divorce at least a year earlier with mutual consent -- preferably with no undue delay after consent is obtained -- would further two goals: making divorce economically fairer to the spouse and children who did not choose it and plan for it; and making it more dependent on out-of-court negotiation, thus less litigious and expensive in most cases.

Both of these effects -- once we get to the point where the people affected know about them beforehand -- would in turn further the larger goal of discouraging divorce and the behavior that leads to it, especially for families that cannot easily afford it, or for whom its costs to everyone involved would exceed its benefits. The resulting incentive will only be significant if consent is the exception to a waiting period that is otherwise considerably longer. Perhaps 18 months or two years would be sufficient, but longer periods such as five years have also been proposed, and it should be remembered that even "until the children are 18" is a waiting period.

However, these deterrent and cost-allocating effects might be slight if the waiting period itself is slight. Indeed, even a longer waiting period probably would not produce deterrent results comparable to what would happen if we actually said that some people, in certain conditions, are protected from divorce.

If the rules can be changed to give people more choice in arranging their lives, so that they can reasonably expect that they probably will not end up in the divorce process without either choosing it or doing something to provoke it, the current generation may no longer have to fear that "It is better not to marry." [FN Matthew 19:10]


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Originally posted and maintained by Americans for Divorce Reform; now maintained by John Crouch. You can call me at (703) 528-6700 or e-mail me through my law office's web site.