Classic Marriage

New rules for a new generation

September 15, 2003 edition

This is a proposal for legislation that would make divorce laws that are stricter than what we have now, but not as strict as what we had in the 1960s. Classic Marriage emphasizes mutual consent, rather than fault or unilateral action, as the most common way of getting a divorce. It would let couples agree to opt out of its restrictions if they have completed marriage skills training. It also strongly encourages such training for all couples.

Classic Marriage gives couples the same choice offered by Covenant Marriage, but with much stronger protections for marriage.

Classic Marriage does not create two kinds of marriage. It assumes that choosing more legal protections for marriage is the norm, not the exception.

Classic Marriage minimizes the bureaucracy imposed on people who try to strengthen their marriages. It does not regulate clergy or other marriage skills trainers, or tell them how to do their jobs.

Its rationale is freedom of contract, not government paternalism. The ability to make binding contracts is vital not just for business, but also for other basic acts of human cooperation, such as marriage and child-raising. The role of the law is to enforce contracts, and to make the process of contracting easier, standardized, informed, and reliable. The law can also recognize that social customs create certain implied or default contracts, which we presume people intend unless they specify otherwise.

Unlike some other proposals, this is not an entirely new framework to replace existing laws and procedures for divorce, custody, property, support etc. It leaves current laws and procedures in place except where it amends them.

There are substantive and procedural changes so that divorce grounds, whether fault or no-fault, can be proven with a minimum of conflict, ugliness, expense, publicity, or involvement of children.

Some sections can be enacted without other sections, to make a narrower bill.

a. Any couple who have received premarital education or marriage education together from any of the providers described in Section 4 may choose not to have Section 2 apply to them by completing a "Choice Form" and filing it with the Clerk's office of the Circuit Court for the county in which they apply for a marriage license, or if they are already married, the county which they reside.

b. A couple to whom Section 2 does not apply (for example, most people married outside this state or before this Act took effect) may choose to have Section 2 apply to them by completing a "Choice Form" and filing it with the Clerk's office of the Circuit Court for the county in which they reside, once they have received marriage education together from any of the providers described in Section 4 .

c. Choice Forms shall be provided by the Clerks of the Circuit Courts. The body of the forms shall read:

"We hereby choose that, if at any time (i) one of us wants to end this
marriage but the other one does not want to, and (ii) we have a child under
18 years old, then the one who wants to end the marriage

____will

____ will not

be able to seek a no-fault divorce of marriage on the grounds of [insert the
words used in all the state's unilateral no-fault divorce statutes, such as
"living apart", "involuntary separation", and/or "irreconcilable
differences"], subject to state law."

d. Such forms are not valid unless signed by both spouses, with each signature acknowledged before, or witnessed by, a Notary Public, Clerk or Deputy Clerk. The forms shall be kept in the court's permanent records.

e. Other forms of agreement; forms and agreements from other states and countries: A written agreement executed before or during marriage, in any state or country, may enforceably specify whether, and under what conditions, 'no-fault' grounds may be grounds for divorce when the parties have children and do not both consent to a divorce. Such an agreement may also enforceably specify a waiting period for divorce when the parties do not both consent to a divorce. For these purposes, only, any form provided by a court for the purpose of making such a choice, in any state or country, if signed by both spouses and retained by the court or other governmental agency or religious institution in its records, shall be presumed to be a valid agreement. "No-fault" grounds include such grounds as living apart; legal, judicial or de facto separation; irretrievable breakdown; incompatibility or irreconcilable differences, as are variously provided in the laws of various states and countries.

Section 1(e)-- This language should be added to the state's premarital agreement laws as well as to its divorce laws. It means that the state passing this bill will also enforce covenant marriages and classic marriages from other states and countries, and will also honor prenups which restrict the ability to get a unilateral no-fault divorce. You want broad generic language when describing contracts or court forms the couple may have signed, because many couples will move between states with different procedures. (Section 7 also addresses this issue.) The part about "religious institutions" is added because in some countries, marriages are only registered with them, not with the government. Also, there are religions in the U.S., such as certain forms of Judaism, in which marriage contracts are common.

If the parties have any children together by birth and/or legal adoption who have not completed or left high school, then a divorce on grounds of [insert your state's no-fault grounds] may not be granted unless both parties have given consent, as defined in Section 3.

COMMENTARY on Section 2

An older version of Section 2 put the onus on the left-behind spouse to file an objection, rather than on the leaving spouse to obtain consent. If you are very concerned about the problem of a spouse who has not deserted, or asked for divorce, disappearing or just not taking any action, you may want to use all or part of the old Section 2.

a. Context. Consent must be either (i) unconditional, or (ii) part of a written agreement (such as a Separation Agreement, Marital Agreement or Premarital Agreement) that is enforceable in its entirety.

b. Form. (i) Consent must be in writing unless it is given in open court.(ii) Asking any court for a divorce on any grounds constitutes consent.

c. Timing. (i) Consent may be given at any time before the judge signs a final decree of divorce from bonds of matrimony. (ii) Consent is not effective if given only when the other spouse is not proposing or seeking a divorce, except when given in an agreement as described in 3(b).

d. Effect on availability and grounds of divorce. Whenever consent has been given by both parties, and no other grounds have been proven satisfactorily, but it appears that the period of living apart required by Code § _____ has passed [delete the previous phrase if your state has no such period], the court may grant a divorce on grounds of mutual consent.

Section 3 (d) means that once consent is given, a divorce can be granted on a new ground of Mutual Consent if a party who filed on fault grounds chooses not to proceed with fault proof, or tries and fails to prove her fault case. The state's waiting period for no-fault divorce, if any, still must be complied with.

Old Section 3 had many other provisions in order to work with old Section 2, which depended on objection rather than consent. It also had a subsection (e) that set a minimum waiting period for consensual no-fault divorce; and if the subsection were removed, the remainder of old Section 3 would allow consensual no-fault divorce with no waiting period at all. The new section 3 takes a different approach: it leaves unchanged whatever the state's current waiting period is. It also does not interfere with other waiting periods that may be enacted in the future.

a. Marriage education or skills training required, or referred to, by this Act may be provided by any of the following:

(i) An official representative of a religious institution, or any clergy person authorized to perform marriages, or his or her designee (including mentor couples or other lay volunteers, if working in a clergy-supervised program).

(ii) Marriage education providers or programs listed, funded or authorized by (a) The United States Department of Health and Human Services; (b) The United States Department of Agriculture Cooperative Extension Service; (c) The United States Department of Defense and the individual military services of the United States; (d) any other federal, state or local government agency or court; or (e) Smart Marriages / The Coalition for Marriage, Family and Couples Education (http://www.smartmarriages.com) or any of its component programs.

(iii) Any marriage education provider or program approved by the person performing the marriage.

(iv) Marriage education or skills training providers listed in any other on-line or printed directories whose use has been authorized by the Clerk of the Supreme Court.

(v) Marriage education or skills training providers listed in Directories which shall be maintained by the local court clerk's office or other office where marriage licenses are obtained. Each such Directory shall be a binder in which the clerk may place the names of local providers and materials sent by them; copies or internet web site addresses of other lists or directories authorized by this Act; printouts of local sections of internet on-line directories; and other materials or lists that the clerk deems suitable.

b. Proof of completion of marriage education or skills training, or marriage counseling, for all purposes for which it may be required under this Act (and not only in this section), shall be submitted as follows:

(i) Proof of completion of training should be signed by a provider, on the stationery, or other form or certificate, that is used by the provider, program or sponsoring institution, but it need not be notarized.

(ii) If the provider is not yet in the Circuit Court's Directory and appears to the Clerk or Deputy Clerk to be qualified as a marriage educator under the terms of this Section, the Clerk or deputy may add the provider or the program to the Circuit Court's directory (regardless of whether the provider or program is already in another on-line or printed directory or is clergy).

c. (i) Whenever anyone contacts a Circuit Court Clerk or Deputy Clerk seeking a marriage license or celebrant, or anything else preliminary to marriage, or to file for divorce, legal separation, child custody or support, the Clerk or deputy shall ask if the couple have gotten or are getting marriage skills training, and from whom.

(ii) If they have not, or if the answer is vague, the clerk or deputy shall inform such persons that training may be available from clergy, or from programs offered by religious institutions, and that both non-religious and religious marriage educators are available from the providers and directories that are authorized by Subsection (a) of this Section (above).

(iii) The clerk shall do this with all persons described in Paragraph (c)(i), regardless of whether they are legally required to obtain any such training.

d. Whenever marriage skills training is available in a geographic area, information on what it is, where to get it, and why, shall be made available to the public at all:

(i) places where marriage licenses are applied for

(ii) offices of civil marriage celebrants

(iii) governmental offices that offer family services or counseling, including any that provide services to single or married parents or to newly-released former prison inmates

(iv) court clerk's offices that deal with domestic relations or juvenile delinquency cases.

(v) providers of court-referred or government-referred divorce education, parenting education, or custody education programs.

e. If the marriage education is provided as marriage preparation, the couple shall undergo the training together. If it is required by state law or court procedures as a prerequisite to divorce, the individual parties may undergo it separately and need not both choose the same program or provider.

Instead of requiring pre-marital counseling for covenant marriages, this proposal strongly encourages marriage education for all marriages. It seeks to maximize the availability of marriage education and skills training, and to minimize bureaucratic barriers between marriage education providers and couples who seek marriage education.

Even couples who are without the guidance of a minister should be able to find competent pre-marital training. One of the best places to go to find such training is the nationwide directory of marriage educators maintained by the Coalition for Marriage, Family, and Couples Education at http://www.smartmarriages.com. For reasons of quality, practicality and convenience, people should be allowed to use this Directory, which is available free on the world wide web, and others like it.

Licensing, Regulation and Accreditation: Premarital education is not limited to therapy or "marriage counseling". Many of the most effective providers of it are not licensed or degreed family therapists, counselors or social workers. Their training and accreditation is provided by the dozens of marriage education programs that have been developed in recent decades and continue to evolve and grow. Many providers are volunteers or do it as a second, part-time job. Consolidated state licensing and regulation is unnecessary and would only stifle the availability and improvement of this vital public service. In fact, if governments, or semi-governmental professional self-regulatory bodies, gain any role in regulating counseling content or techniques, the resulting product will end up reflecting narrow or politicized values that are at odds with the values and practical needs of most couples.

If marriage preparation legislation excludes or regulates the clergy, it is not worth doing. Excluding marriage educators or lay religious trainers is also a big mistake.

Length and Content: Clergy and other accredited marriage educators are perfectly competent to determine the length and content of their programs. The state need not and should not interfere.

Definitions: Terms such as "training," "premarital training" and "providers", when used alone, are intended to be fully interchangeable with the longer phrases used earlier in the Section, "Marriage education or skills training" and "Marriage education or skills training providers". The shorter versions are used in parts of the Act that tell Clerks and deputies to tell couples certain things, so as to make such communication between court employees and the public as brief, intelligible and informal as possible.Terms such as "clerk", "Circuit Court" and "Supreme Court" should be modified to fit your state.

Section 4 (a)(i): Each state has constitutionally-tested language it uses to describe clergy or marriage celebrants in its statutes. You should use the language already used in your state's code, and then add " or his or her designee". Here's why to add that last bit: Many churches provide a mixture of clergy and lay counseling. This includes churches that are part of the Community Marriage Policies promoted by Marriage Savers, Inc.

Section 4 (a) (ii): Some of the leading component programs of the Smart Marriages Coalition, at present, are PREP, Inc.; PAIRS, PREPARE, FOCCUS, RELATE, IMAGO Relationship Education, the National Institute for Relationship Enhancement and its Relationship Enhancement curriculum , the Couple Communication® programs, The Couples Health Program SM, and Marriage Savers, Inc. and its local Community Marriage Policies TM or Community Marriage Covenants.

Section 4 (e): Section 4 is designed to work with any legislation that makes marriage education or counseling mandatory, not just as part of Classic Marriage; as well as being able to stand on its own as legislation that encourages and publicizes marriage education. Subsections 1(a) and (b) require couples to undergo training "together" before signing a choice form. The requirement that the couple to undergo marriage preparation training together means that for most couples, having taken high school family life, relationships or marriage skills curricula (such as PARTNERS, CONNECTIONS, PEERS, or Building Relationships) would not be sufficient, even if the programs are listed in the approved directories. These programs are very valuable but they are not the same thing as marriage preparation.

But for already-married couples who may be required to undergo marriage education or counseling before a divorce will be granted, there are reasons not to require couples to receive it together, though it is usually better if they do. For one thing, in cases where there is alleged domestic violence, and where there may be restraining orders barring the spouses from each other's presence, court systems that currently provide divorce education and custody education have found it expedient to allow the parties to attend separate sessions. Second, this means the parties do not have to agree on which provider to use before they can proceed; so neither spouse can hold up the process by refusing to attend.

a. Except for evidence of living apart, (i) no minor child of either of the parties to a divorce suit may give evidence of grounds for divorce; (ii) nor may any statement of such a child, by hearsay or otherwise, be used as evidence of grounds for divorce.

b. Except for evidence of living apart, or of imprisonment or conviction of a crime, evidence of grounds of divorce shall not be heard ore tenus in a court of record or in a hearing open to the public. Instead, it shall be heard [here specify procedures already available in the state, such as referral to a commissioner or master, automatic remand or transfer to juvenile or family court, or having all divorces begin in juvenile court for a hearing on grounds].

c. In suits for divorce based on grounds other than living apart, separation or desertion, the defenses of condonation and of cohabitation after knowledge are abolished. The court may nonetheless consider any evidence that it finds to be relevant to matters before it.

d. The role of corroboration, the requirements for corroboration, and the sufficiency, credibility, weight, role and use of admissions by the parties, shall be the same in divorce suits as in other suits in equity or at law. All requirements to the contrary are abolished.

e. The defense of recrimination is abolished. The court may nonetheless consider any evidence that it finds to be relevant to matters before it.

f. This Section applies to suits for divorce from bonds of matrimony, [suits for judicial or legal separation,] and suits for divorce from bed and board.

Section 5 (b): "evidence of living apart" is intended to apply not only in states where living apart is a ground of divorce, but also in states where it is not a ground itself, but is considered to be irrefutable evidence of irretrievable breakdown, irreconcilable differences etc.

A possible variation on this subsection would be to still allow an in-court hearing, rather than a commissioner or special master, if both parties want one. This is because, in some states or localities, a commissioner's hearing may be more expensive than a court hearing.

a. This act takes effect on _________________, 20______.

b. Section 2 applies to all couples married after this Act takes effect, except as provided in Section 7.

c. Section 2 shall not apply to couples married before this Act takes effect, except (i) as provided in Section 7, or (ii) for such couples who choose to have Section 2 apply to them by completing a "Choice Form", or who have made a similar choice or agreement by one of the means described in Section 1(e).

d. Section 3 shall apply to all cases pending when this Act takes effect, or filed thereafter.

e. All other Sections of this Act shall apply to all cases filed after this Act takes effect.

a. Section 2 does not apply to couples who were neither married in this state nor resident and domiciled here at the time of marriage, except (i) if they have completed a Choice Form under Section 1(a) (or a similar law of another state) indicating in substance that Section 2 should apply, or (ii) pursuant to another out-of-state agreement or form described in Section 1(e), or (iii) upon proof that the law prevailing at the time and place of their marriage did not provide for unilateral no-fault divorce as defined in Section 1(e); or (iv) as provided below in Subsection 7(b).

b. If a couple was married in another state or country whose law at the time allowed a couple to make a choice of divorce rules at the time of the marriage or later during the marriage (including states with statutes similar to this Act or with Covenant Marriage legislation), or if a couple made such a choice in another state at some time during the marriage pursuant to such legislation, and if such couple has not completed a Choice Form in this state, then the divorce grounds and other substantive requirements chosen by the couple at the time of the marriage (or later), as provided by the law of the state where they did so, shall apply instead of the divorce grounds and other substantive requirements provided by this state's law.

c. If the place of last marital cohabitation was a state, district, territory, province or country that adjoins this state, and the Defendant still remains in that place, then this state shall not exercise any jurisdiction that it has to grant a divorce unless the defendant consents (as described in Section 3) to a divorce, and to such divorce being heard in this state's courts.

In any divorce case commenced after the effective date of this Act, if there is a Choice Form, agreement, or other writing, as described in this Act, or an out-of-state marriage of the kind described in Section 7, which may affect whether Section 2 applies to the marriage, then any Bill of Complaint for Divorce, and any Objection or Answer to the Bill of Complaint, must so state. Failure to do so shall not affect the validity or timeliness of any such pleading, and later written or oral amendment or stipulation shall be allowed up to the time of the hearing on grounds of divorce.

Most states still have several "fault" grounds for divorce, and most reformers do not propose to change them. But:

a. In the 15 or so states where all fault grounds have been abolished, some such grounds will have to be reinstated.

b. A few states have certain fault grounds that are a joke, which judges routinely use as a substitute for no-fault, sometimes without allowing any evidence to be presented by the defense. It is impossible to tell which ones these are from looking at a state's statutes -- you would have to consult divorce lawyers in each particular state about this. These need to be pared back, reformed or removed entirely.

c. Also, in all states, once restrictions on no-fault divorce are put in place, perhaps some additional fault grounds, reflecting social change for the worse in recent decades, should eventually be enacted, usually by borrowing from other states or countries.

I have compiled some Fault Grounds from Other States and Countries. My associate has compiled all Grounds for Divorce in the various states of the U.S.

Any marriage counseling or education required before divorce may be provided by any of the providers listed in Section 4(a), or by licensed behavioral health professionals, psychologists, social workers, marriage and family therapists, psychiatrists, pastoral counselors, certified family life educators, or professional counselors, but not by a therapist who is treating or has treated one of the spouses separately. The individual parties may undergo it separately and need not both choose the same program or provider.

Having heard marital therapists such as Bill Doherty and Frank Pittman of the Smart Marriages coalition describe what "marriage counseling" provided by therapists and even by the clergy often consists of, I would be hesitant to include any requirements for it. If such language is included, it might even be best to restrict it to clergy and to marriage education providers and marital therapists who are part of the Smart Marriages coalition. But excluding other family therapists is probably politically impossible and perhaps not fair, and if that is the case in your state, it is better not to have any pre-divorce counseling requirements at all at this point.

But if you are nonetheless going to include requirements or incentives for pre-divorce counseling, the language in Subsection 4(a) (plus Section 10 above if therapists are to be included) is what we recommend for defining the providers.

The counselor should not be a therapist who is treating or has treated one of the spouses separately. That creates very unhealthy, confused situations which breed mistrust, and often facilitates divorce rather than reconciliation or a better marriage.

If there are going to be marriage counseling requirements, it would be good to include language saying that marriage counseling must be directed towards saving the marriage - but trying to come up with acceptable wording, definitions and exceptions would be a very delicate and contentious process and may not be possible.