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
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me through my law office's web site.