Friendly Critique of a Typical Covenant Marriage Bill

Letter by John Crouch to a state policymaker who sent him a covenant marriage bill.

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Thanks for sending me the Covenant Marriage bill. Since you appear to be soliciting my opinion, I will give it to you. Remember that it's friendly criticism and that we support bills even if they are not what we think is ideal.

1. Don't include divorce grounds in the premarital counseling
2. What divorce grounds should not require counseling
3. The waiting period
4. Who does the counseling
5. Inter-state application.
6. Counselor's signature having to be notarized, and other bureaucratic overkill
7. Upgraders having to register in county where married, and other built-in obstacles to swift implementation

1. Don't include divorce grounds in the premarital counseling.
9-11-804(a)(2)(A) "... authorized counseling which shall include ... a discussion of the exclusive grounds for legally terminating a covenant marriage by divorce."
This is the provision that made the Catholic Church in Louisiana vocally reluctant to support CM. They didn't want to be cooperating with divorce or telling people that divorce is OK under any circumstances. You should leave out that language, and instead have the information be in the informational pamphlet.

2. You're going to get some flak for requiring counseling before divorce or separation even where there's abuse of the spouse or children. On the other hand, if you make an exception for this, how do you stop it from being an incentive to make false accusations and have "fault" trials with children as witnesses? That's a hard one. And also, marriage counseling may not always be feasible when one spouse is in prison, although there are programs that do that.

3. The waiting period is not very long. In fact, I had read in some places that Arkansas already required 3 years for non-consensual no-fault divorce, although other sources said 1.5 or 2 years. You could try a longer waiting period, especially if it's in a climate where anything you propose is going to get watered down. Democrats in Maryland in 1999 introduced a bill that did not offer a waiting period as a way to get a non-consensual no-fault divorce. Minnesota's 1998 bill had a 5-year waiting period.

4. Premarital counseling. The bill does not make any distinction between who is qualified to do marital counseling and who is qualified for premarital counseling. The secular providers of marriage counseling and PRE-marital training are not the same people, although there is a large overlap between them. I don't know if non-therapeutic "marriage educators" are very widespread in Arkansas yet, but they do make a very good argument that their approach is more effective for pre-marital training than the various products provided by therapists. Also, on average they are a lot more pro-marriage than therapists. The marriage education movement includes many family therapists who are critical of their profession's hostility or neutrality toward marriages and its promotion of self-centeredness in patients.

There's more about this in our model counseling provisions, which I am sending separately.

Also, many churches use a combination of lay people and clergy for premarital training. There's also more on this, including suggested language, in the model provisions.

5. Inter-state application. This question is a little harder for you than it was for the first state that did CM. If people have a Covenant Marriage from Louisiana or Arizona, will your state treat it as a Covenant Marriage? It certainly should, shouldn't it? You could deal with this in the definitions section, or in a separate definitions subsection within Sec. 9-11-807 on "Divorce or separation."

6. Counselor's signature having to be notarized.
a. In practice, counseling is often performed in church offices after hours, or by secular marriage education practitioners who do it in tiny offices or as their second job, so a notary often might not be available at a convenient time. Something on the stationery of the counselor or the church ought to be sufficient.
b. Counseling is a public service and shouldn't be treated like a privilege jealously guarded by the government.
c. We don't want to treat people too much like criminals, or cater to the idea that marriage, and especially covenant marriage, is something dangerous that we need to protect people from.

7. Upgraders having to register in county where married or get copy of license from another state:
a. Additional bureaucracy will probably discourage many potential upgraders. Why not have them do it where they live?
b. I'd try as much as possible to avoid things that require additional work and cooperation from court personnel. Many of them will not be very enthusiastic about CM or may just have a steep learning curve on it. The provision involving marriage licenses from other states will require cooperation from clerks there, doing something they're not used to doing, and probably not knowing why.
c. Right now, the practice of divorce law does not include any reason to go dig up the marriage license (unless something is different about divorce in your state). I'm a divorce lawyer, but I've never seen a marriage license except for my own. I realize that divorce in Covenant Marriages might require production of the license in the rare and dumb case where the parties disagree on whether it was a covenant marriage. But my point is that there is no existing system for this which CM procedures would have to fit into. Doing the upgrade where you live, or elsewhere in the state, wouldn't screw anything up administratively, as far as I can tell.

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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.