Minnesota Proposed Covenant Marriage Option Bill

Item from the Smart Marriages Archive, reproduced in the Divorce Statistics Collectio n

THE COVENANT MARRIAGE OPTION BILL

OVERVIEW AND RESPONSE TO QUESTIONS

William J. Doherty, Ph.D.
University of Minnesota

1. What is the Covenant Marriage Option Bill?

This proposed Minnesota state law gives couples the option of choosing a
marriage contract that requires more preparation before marriage and more
help-seeking if trouble occurs, and is more binding than current law.
In existing marriage and divorce law, no preparation for marriage is
mandated, no counseling is required for a troubled marriage, and the
marriage can be dissolved without cause, often swiftly, if one partner
wants to end it. The Covenant Marriage Option involves publicly agreeing
to:

÷ Twelve hours of premarital education that emphasizes lifelong
commitment and communication and conflict resolution skills.
÷ Taking steps to restore the health of oneºs marriage if it is in
trouble, including participating in at least 12 hours of marital
counseling.
÷ A two-year period from the time of separation until a divorce decree
can be finalized, unless there has been adultery, abuse, abandonment, or
a felony conviction.

The bill also provides a way for currently married couples to convert
their no- fault marriage into a Covenant Marriage by going through a
process of marriage education, a declaration of intent, and
re-registering their marriage with the state.

2. What Is the Rationale for Establishing a Covenant Marriage Option?

Through a series of divorce law reforms, Minnesota has made divorce
easier to obtain but has done nothing to help make marriages more viable.
This is akin to making it easier to terminate parental rights without
providing more education and support for parents in raising their
children. Nearly all newlyweds aspire to a happy, life-long marriage,
but nearly half will divorce"a trend that has been in place for 20 years.
The negative fallout from failed marriages is well-documented for adults
and children and for the broader society that picks up the pieces and the
costs. Some destructive marriages are best ended, but what about
preventable and regrettable divorces? How can a piece of legislation
help couples to achieve their goal of a successful life-long marriage and
prevent unnecessary divorces? The Covenant Marriage Option bill cannot
single handedly reverse powerful social trends, but it puts the state
squarely behind three elements that research has shown can help to build
viable marriages and prevent unnecessary divorces:

÷ A substantive premarital education course, the best of which have been
shown to improve marital quality and prevent divorce. One study found a
50% reduction in divorce rate over five years for couples who
participated in a high-quality premarital educational program (Markman et
al., 1995). In a recent poll of New Jersey adults, spouses who had
experienced premarital education were nearly four times less likely to
have considered divorce than those who had not been through such a
program (New Jersey Family Policy Council, 1999).
÷ Marital counseling, which research has shown to be effective in
treating marital distress (Bray & Jouriles, 1995).
÷ A pro-commitment ethic, which has been found to help prevent marital
deterioration (Amato, 1998).

In addition, the Covenant Marriage Option reduces the likelihood of
impulsive decisions to divorce by requiring a two-year waiting period
during which spouses can reflect on the direction they want to take, and
perhaps put more effort into saving the marriage. In the New Jersey poll
mentioned above, 46 percent of divorced people reported that they wished
that they and their ex-spouse had tried harder to work through their
differences.

3. Does the Covenant Marriage Option Bill Eliminate No-Fault Divorce?

÷ No, the bill creates a second option for marriage. It does not replace
no-fault divorce laws, and the bill does not require that anyone choose a
covenant marriage.

4. What Are the Safeguards if a Covenant Marriage Becomes Destructive?

÷ The divorce process can be initiated immediately if one of the
following conditions is present: adultery, physical or sexual abuse,
felony conviction, or abandonment for one year.

5. Wonºt Couples be in Legal Limbo for Two Years if They Want to End Their
Covenant Marriage? What About Child Support and Custody?

÷ Couples who have chosen the Covenant Marriage Option may obtain a legal
separation, which provides full legal protections and responsibilities
while they live apart, including child support, temporary custody, and
spousal maintenance when appropriate. But they cannot obtain a divorce
decree and remarry until the two year waiting period is over.
÷ All other legal remedies are fully in force, including obtaining a
protection order from an abusive spouse.
÷ Other than not being able to unilaterally take possession of joint
marital assets during a legal separation, the principal legal privilege
curtailed by Covenant Marriage is the ability to remarry within two years
of a separation. In light of the dangers of quick remarriage, this is
not an excessive burden"and it is an obligation that the couple
voluntarily took on when deciding to enter a Covenant Marriage.
÷ Some critics of Covenant Marriage have asserted that low income women
in particular will be disadvantaged. Data from a state-wide poll and
from in-depth focus groups in Louisiana, however, indicated that low
income women were more enthusiastic about Covenant Marriage than higher
income women and men. In focus groups, poor African-American women were
particularly enthusiastic because they saw Covenant Marriage as
encouraging more sober thinking about entering marriage, and as
discouraging hasty and unilateral departures (Nock et al., 1999; Nock,
personal communication, 12/13/99).

6. Why Should the State be Involved in Promoting More Stable Marriages?
Isnºt
Marriage a Private Matter?

÷ In all societies, marriage has always been a public concern, not just a
private
matter, mostly because of the needs of children. The state and its
citizens benefit from successful marriages and pay a large price for
failed marriages. The breakup of a childºs parents is the leading cause
of that child going on public assistance. Children of divorce, on
average, have less academic success, disengage earlier from school,
become parents younger, and have more emotional problems during childhood
and adulthood--differences that hold up after economic and other social
class differences are taken into account (Cherlin et al., 1998; McLanahan
& Sandefur, 1994). For adults, the positive health benefits of a good
marriage, and the negative health effects of divorce, have been
well-documented by social scientists (Waite, 1995).
÷ The Covenant Marriage Option bill does not put the state in the
position of urging couples to choose a Covenant Marriage, which should be
a private decision. Rather, it gives them the legal option to have a
Covenant Marriage.
÷ Offering the Covenant Marriage Option also puts the state on record as
supporting careful preparation for marriage, assistance for troubled
marriages, and extensive consideration before ending a marriage. The
vast majority of Minnesota citizens support such measures. (See question
12 for data on Minnesotans' attitudes and values about marriage and
divorce.)

7. If People Want a Divorce, Wonºt Covenant Marriage Merely Delay the
Inevitable and Add to Everyoneºs Distress?

÷ People may be certain about divorcing today but ambivalent tomorrow.
Many people do not look back on their divorce as necessary and
inevitable. An Australian survey found that about 40 percent of
divorced people said that they regretted their divorce and thought it
could have been avoided (Relationships Australia, 1995). For people who
voluntarily commit to a Covenant Marriage, it is not draconian for the
state to insist that they slow down the process of divorcing and obtain
marital counseling in order to test the validity of their sense that the
marriage cannot be changed and salvaged. Furthermore, the majority of
divorces do not involve both spouses wanting the marriage to end. In
most cases, only one partner wants the divorce. In no-fault divorce, the
more committed spouse has little leverage to see if reconciliation is
possible. The only way for this spouse to slow down the divorce process
is to create disputes over property or children, tactics that only serve
to further alienate the other spouse. A Covenant Marriage gives the
more committed partner the option to insist on a waiting period and a
significant number of marriage counseling sessions"a process that the
other spouse once promised to participate in. Delay and help-seeking are
especially valuable when the divorce-seeking spouse is acting
impulsively, for example, during a personal crisis or after becoming
infatuated with someone else. Covenant Marriage puts a brake on a quick
divorce, requires that the couple seek help, and prevents premature
remarriages that often lead to further divorce.

8. Isnºt There a Risk That People Will be Pressured into Entering a
Covenant
Marriage Because Itºs the "Superior" Marriage?

÷ Fortunately, there is research data addressing this concern. A
federally funded study of Covenant Marriage in Louisiana has looked hard
for this problem and not found it. Clergy and other marriage officiators
in Louisiana are doing a good job of allowing couples to make their own
decisions about Covenant Marriage (Nock et al., 1999).
÷ There is also no indication of other forms of social pressure to enter
a Covenant Marriage in Louisiana or Arizona, the other states with a
Covenant Marriage Option law. Far from there being a trendy stampede of
couples to enter a Covenant Marriage, only about 3 percent of newlyweds
in Louisiana thus far are choosing this option (Nock et al., 1999). The
worry about widespread social pressure to do the "superior marriage" is
not born out by experience to date.
÷ Some critics have expressed concern that women will feel pressured by
their partners into a Covenant Marriage. The experience in Louisiana is
that women, not men, are the main initiators of Covenant Marriages.
÷ In Minnesota, clergy leaders are planning to develop a code of ethics
for clergy who counsel couples about Covenant Marriage.

9. Wonºt Abused Women be Trapped and Endangered by a Covenant Marriage?

÷ As mentioned before, abused women will have all the immediate legal
remedies currently available to them. They can leave their spouse, they
can file for a legal separation without asserting a reason, and they can
get a protection order, just as they can now. Indeed, it is during the
separation process, not the later divorce process, that women are at most
danger if their spouse has a history of violence. Once separation and
safety procedures are in place, the woman has the option of asking the
court to waive the two-year waiting period and the counseling requirement
because of a history of abuse in the marriage. If she has already told
the court that she has been abused, because she filed for protection,
there appears to be little additional risk of telling the same
information to the divorce court in order to dissolve the Covenant
Marriage.

10. Wonºt There be a Flood of Litigation from Spouses Trying to Get Out
of the Covenant Marriage Requirements?

÷ In order to prevent frivolous litigation, the Covenant Marriage Option
Bill has provisions stating what are the specific grounds for dissolving
a Covenant Marriage, and what are not grounds. For example, the claim
that oneºs spouse was not truthful in promising to fulfill the terms of
the Covenant Marriage is explicitly excluded as a ground for dissolution.
Only the serious problems mentioned above--adultery, abuse, felony,
abandonment--or two years of separation- are ground for dissolution.
÷ Might some spouses falsely accuse their partner of adultery or abuse,
in order to dissolve a Covenant Marriage, or might a spouse falsely deny
accurate charges? Of course this can happen, and the courts would have
to resolve the matter as they would in any case of establishing the
truth. But predictions about large numbers of couples litigating fault
and overloading the courts stem from speculative fears that do not take
into account the self-selected nature of covenant marriage and the
supports provided for these couples.

11. Isnºt There a Risk That Some People May Later Regret Having Formed a
Covenant Marriage?

÷ There are no risk-free decisions to get married. Currently, married
people run the risk of having their marriage terminated unilaterally, and
sometimes quickly, by a spouse who does not even have to say why, and who
can refuse the prudent step of a cooling-off period during which to seek
help for the marriage. Many people who regret their divorce might see
greater risks in the current no-fault system.
÷ What are the worst risks for people who unwisely choose a Covenant
Marriage? They might have to pay for a legal separation and then later
for a divorce. They might be unable to take sole possession of their
share of joint assets during the two-year separation. They might go to
marriage counseling with a spouse who refuses to participate in good
faith. Their spouse might lie to get out of the covenant marriage
requirements, with a judge having to resolve the dispute. And they
could not remarry for two years. These risks will be published in a
pamphlet that the Covenant Marriage bill requires all couples to assert
that they have read before entering a covenant marriage. All other risks
are identical to those involved in ending any marriage.
÷ On balance, given the potential gains for couples who choose the
Covenant Marriage Option, the risks appear to be modest and prudently
assumed by couples who want to hold themselves to higher standards of
commitment and responsibility. Refusing to give couples this option, on
the grounds that we want to protect them, seems both unwarranted and
paternalistic.

12. What Do Minnesotans Think About the Provisions of Covenant Marriage?

A recent poll of Minnesota adults, conducted by a Virginia-based research
firm and using random sampling methods, provides data on the attitudes
and experiences of Minnesotans about marriage and divorce (Minnesota
Family Institute, 1998). Overall, Minnesotans appear to be quite
supportive of the intent and provisions of Covenant Marriage. Following
are relevant findings:

÷ Minnesotans believe in lifelong marriage. Ninety percent of
Minnesotans expect to be married for life, and "lifelong commitment" was
rated as the most important factor in a strong marriage, along with good
communication.
÷ But divorce is common. 21 percent of Minnesotans have been divorced.
÷ The majority of divorced people wish they had tried harder. Of those
who are currently divorced, 66 percent answered yes to the question
"Looking back, do you wish you and your ex-spouse had tried harder to
work through your differences?"
÷ Formal preparation for marriage is common and helpful, but not
universal. Less than one-half (44%) of ever-married Minnesotans
participated in premarital counseling, but 78 percent of those who did
participate found it helpful to the success of their marriage. People
who have been divorced are 60 percent less likely to have had premarital
counseling.
÷ Premarital counseling is typically very brief. The average couple who
had premarital counseling attended only an average of 1.8 sessions, far
fewer than the 12 hour requirement for Covenant Marriage.
÷ Minnesotans believe in sustaining marital commitment through hard
times. The vast majority (86%) believe that "a couple who is unhappy in
their marriage should remain together and work to re-establish the love
they once felt." Couples who had premarital counseling endorsed this
view more strongly than those who did not have premarital counseling.
÷ Minnesotans are not optimistic about divorce as a way to solve
problems. About two-thirds agree (64%) with the statement that "people
who divorce typically exchange one set of problems for another." Nearly
the same percent of adults (61%) whose own parents had divorced believe
the same thing.
÷ On the other hand, Minnesotans believe that divorce is sometimes
necessary and justified. Almost everyone (95%) believes that abuse or
abandonment are good reasons to consider divorce. More than half (58%)
believe the same for adultery, while less than half (42%) believe that no
longer feeling love for one's spouse should cause one to consider divorce.
÷ Minnesotans support mandatory marital counseling. Over three-fourths
(78%) of Minnesotans believe that "mandatory pre-divorce counseling"
would be effective "in strengthening the institution of marriage."
÷ Minnesotans also endorse longer waiting periods before divorce. Over
two-thirds (69%) believe that this would strengthen the institution of
marriage.

REFERENCES

Amato, P. R., & Rogers, S. J. (1999). Do attitudes toward divorce affect
marital quality? Journal of Family Issues, 20, 69-86.

Bray, J. H., & Jouriles, E. N. (1995). Treatment of marital conflict and
prevention of divorce. Journal of Marital and Family Therapy, 21,
461-473.

Cherlin, A. J., Chase-Lansdale, P. L., & McRae, C. (1998). Effects of
parental divorce on mental health throughout the life course. American
Journal of Sociology, 63, 239-249.

Markman, H. J., Renick, M. J., et al. (1993). Preventing marital
distress through communication and conflict management training: A 4-and
5-year follow-up. Journal of Consulting and Clinical Psychology, 61,
70-77.

McLanahan, S., & Sandefur, G. (1994). Growing up with a single parent.
Cambridge, MA: Harvard University Press.

Minnesota Family Institute (1998). Minnesota marriage report.
Minneapolis: Minnesota Family Institute.

New Jersey Family Policy Council (1999). New Jersey marriage report: An
index of marital health. Parsippany, NJ: New Jersey Family Policy
Council.

Nock, S. L., Wright, J. D., & Sanchez, L. (1999). America's divorce
problem. Society, 36, 43-52.

Relationships Australia (Western Australia) (1995). Build better
relationships: Background and planning document. Available from
Threshold magazine, 17 Silverdale Road, Ivanhoe 3079 Australia.

Waite, L. J. (1995). Does marriage matter? Demography, 32, 483-507.

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