New rules for a new generation
September 15, 2003 edition
Part of the Divorce
Reform Page, sponsored by Americans for Divorce
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Section 1 -- Choice of Divorce Rules by Couple
at Time of Marriage or Later.
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
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
Section 2 -- No no-fault divorce until children
grown if spouse objects.
Section 3 -- Fault not considered if both consent
to any divorce.
Section 4 -- Marriage Education
Section 5 -- Evidence of fault or breakdown;
Children and publicity.
Section 6 -- Not retroactive except by mutual
Section 7-- Couples married outside this state
Section 8 -- Pleading requirements
Section 9 -- Changed or new to "fault"
grounds for divorce [needed in a few states]
Section 10 -- Marriage Counseling or Education
required before divorce
NOTE ON ENACTING PIECES OF THE ACT SEPARATELY
For a divorce reform bill without choice or counseling provisions,
use Sections 2, 3 and 5, and consider using Sections 6 and 7.
For a choice bill without counseling requirements, remove the references
to "premarital education or marriage education" in Subsections
1(a) and (b), and remove Subsection 4(b).
For a counseling or marriage education bill, use Section
Even if you are not imposing any counseling requirements, we recommend
enacting Subsections 4 (a), (c) and (d), which
increase access to, and public awareness of, marriage education, at little
or no cost to the state.
For a bill that merely honors and enforces covenant marriages from other
states, use Subsection 7(b) and remove references
to "this Act" and "Choice Form".
Section 1 -- Choice of Divorce Rules by Couple
at Time of Marriage or Later
COMMENTARY on Section 1 -- Choice of Divorce Rules
by Couple at Time of Marriage or Later
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
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 not
be able to seek a no-fault divorce of marriage on the grounds of [insert
words used in all the state's unilateral no-fault divorce statutes, such
"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 2 -- No no-fault divorce without mutual
consent until children grown.
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.
Section 3 -- Divorce based on Mutual Consent;
Fault not considered
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
Consent to a divorce.
COMMENTARY on Section 3 -- Divorce based
on Mutual Consent; Fault not considered
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.
Section 4 -- Marriage Education and Skills
Note: The language of this Section is identical to our
MODEL MARRIAGE EDUCATION LEGISLATIVE LANGUAGE, which is separately available
along with notes and commentary from http://www.divorcereform.org/mod.html,
and which additionally includes optional
language on marriage waiting periods, not shown here.
COMMENTARY on Section 4 -- Pre-Marital Education
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
(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
(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
(iii) The clerk shall do this with all persons described in Paragraph
(c)(i), regardless of whether they are legally required to obtain any
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
(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.
Section 5 -- Evidence of fault or breakdown;
Procedures; Children and publicity.
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
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.
COMMENTARY on Section 5 -- Evidence of fault
or breakdown; Procedures; Children and publicity
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 6 ­p;- Effective Date and Retroactivity
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
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.
Section 7 -- Couples married outside this
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
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
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.
Section 8 -- Pleading requirements
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
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
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.
Section 9 -- Changed or new "fault"
grounds for divorce [needed in a few states]
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.
[NO MODEL LANGUAGE RECOMMENDED AT THIS POINT, so all of this Section
Most states still have several "fault" grounds for
divorce, and most reformers do not propose to change them. But:
Section 10 -- Marriage Counseling or
Education required before divorce
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.
COMMENTARY on Section 10 -- Marriage Counseling
or Education required before divorce
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.
This Act has been refined from earlier drafts, over the
years, in response to the comments of many different people in various fields.
This is not the only specific legislation recommended by Americans
for Divorce Reform, Inc., which encourages and publicizes a variety
of social, cultural and legislative efforts to reduce divorce. We
would like to receive your comments and alternative proposals.
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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.