Indiana Law Review


Covenant Marriage: Legislating Family Values

Amy L. Stewart*

Introduction

Hardly a social problem exists that has not been attributed to the breakdown

of the American family, and hardly has there been a time in American history
when this has not been true. Today, a decline in "family values" is blamed for
crime, drug use, low educational achievement, poverty, and probably in some
circles, for the weather. The solution to these problems, the theory goes, is to
save the family, and the way to save the family is to make it harder to get
divorced.

In some states, conservative lawmakers are charging to the rescue. They
propose a concept called "covenant marriage," a sort of "marriage deluxe" that

would be slightly harder to enter and much harder to exit than a "regular"
marriage. Their goal is to reduce the divorce rate by preventing bad marriages

before they begin and by restricting divorce once a couple is married. In July

1997, Louisiana became the first state to pass a covenant marriage bill.' This
Note assesses the likely effectiveness of such a measure. It concludes that
marriages are better made in the human heart than in the statehouse halls.

Part I of this Note reviews the evolution of American divorce law to provide

an historical context for the current movement to reform those laws. As one
product of this new reform movement, the covenant marriage proposal itself is
described in detail. In an effort to evaluate whether new restrictions on divorce
will improve social conditions, the current, less restrictive scheme of no-fault

divorce is analyzed to determine whether it has been responsible for adverse

social consequences. Specifically, this Note considers the impact of no-fault

divorce laws on the well-being of children and spouses, on the post-divorce

finances ofwomen, and on the divorce rate. A brief attempt is made to explore
the factors that contribute to successful marriages. Against this backdrop,

covenant marriage legislation is inspected to determine whether it will succeed

in achieving its social objectives. Finally, this Note recommends alternative
approaches.

I. History and Evolution of Divorce Law

During the Colonial period of American history, the family was an integral
part of a hierarchically organized, interdependent society, and the family owed
duties and obligations to the community.^ In order for men to fulfill their duty
to maintain a well-governed home, they were vested with control over the

* J.D. Candidate, 1999, Indiana University School of Law—Indianapolis; B.S., 1986,
Indiana University.

1. Act of July 15, 1997, 1997 La. Acts 1380 (codified at La. Rev. Stat. Ann. §§ 9:224-25,

234, 245, 272-75, 307-09 (West Supp. 1998)).

2. See Michael Grossberg, Governing the Hearth 4 ( 1 985).



510 INDIANA LAW REVIEW [Vol. 32:509

household's inhabitants and property.^ Women and children were subordinate
and dependent.'* Under the law, husbands and wives were treated as one person,
and the husband assumed all of the wife's legal rights.^ Divorce, where
available, required an act of the legislature, and even divorce from bed and board

(a form of legal separation) was rare.^ This does not mean, however, that
marriages always remained intact. The most common solutions to marital
breakdown were adultery and desertion.^

Unlike the Old World, however, America offered abundant land, commercial

opportunities, and demographic patterns which began to effect changes in the

concept of family.^ Individuals resisted community and family demands that
restricted their personal choices.^ Women gained more social and economic
freedom ^^ and their legal rights increased, as represented by the availability of

divorce in some colonies.'

'

In the Post-Revolutionary era, the family evolved from a public to a private

institution.'^ The law began to regard the family as a separate, self-regulating
body composed of individuals with their own rights and identities.'^ Affection,
not status, became the basis for marriage,'"* which was viewed as contractual in
nature, arising from the consent of both parties and capable of being dissolved.'^

Gender roles within the family became specialized; husbands were responsible

for supporting the family, wives for maintaining the home.'^

Reflecting the more emotional and intimate nature of marriage, the

Nineteenth Century brought a steady rise in the number of divorces, increasing

at a rate of more than seventy percent per year by the end of the century.'^ In

1867, 9937 divorces were granted in the United States; by 1900, 55,000 couples

divorced each year.'^ Restrictive divorce laws failed to stem the tide.'^

Reformers spoke of a "crisis in the family," and "critics warned that divorce and

desertion, male licentiousness, and women's rights threatened the very fabric of

the republic. . . . An overemphasis on personal welfare and private satisfaction

3. See id. at 5.

4. See id.

5. See id. at 25.

6. See Lawrence M. Friedman, A History of American Law 204-05 ( 1 985).
7. See id. at 204.

8. See Grossberg, supra note 2, at 5.

9. See id. at 5-6.

10. See id. 2X5.

U. See id. 2X25.

12. See id. at 6.

13. See id. 2X26.

14. See id. 2X1.

15. See id at 6-7, 19-20.

16. See id. 2X1-9.

17. Seeid2X23^,250'5\.

18. See Friedman, supra note 6, at 500.

19. See Grossberg, supra note 2, at 250.



1 999] COVENANT MARRIAGE 5 1

1

was, they held, a menace to social cohesion because it fostered excessive
individualism and self-indulgence."^^

During the period between the Revolution and the end of the Nineteenth

Century, courtroom divorce gradually replaced legislative divorce, first in the

northern states and later in the South.^' Under the new laws, divorce was an
adversarial process in which one spouse had to prove that the other was at fault,
usually for adultery, desertion, cruelty, or drunkenness.^^ Over two-thirds of all
divorce actions were filed by wives.^^

Although the divorce statutes were strict, between the mid-Nineteenth and

mid-Twentieth Centuries, the law and practice of divorce diverged.^'* Couples

managed to obtain "consensual" divorces, although the statutes allowed no such
thing.^^ The primary mechanisms of consensual divorce were collusion and
perjury .^^ In New York, for example, where adultery was the only allowable
ground for divorce, "divorce rings" flourished.^^ Enterprising entrepreneurs

manufactured adultery for couples in the market for divorce by staging

compromising hotel room scenes, complete with "actresses" who would appear
in court and "testify they knew the husband in the case, blush, cry, and then leave
the rest to the judge."^^ In states that allowed more relaxed grounds for divorce,
such as abandonment and cruelty, these were by far the most popular grounds,

and most ofthese divorces were uncontested.^^ By 1959, cruelty was the ground
in halfofthis country's divorces, and desertion accounted for another twenty-five

percent.^^ Still another option was to travel to "divorce mills"—states popular
among freedom-seeking visitors for their permissive divorce laws.^'

In 1969, California enacted the nation's first no-fault divorce law,

recognizing divorce as the result of factual marital breakdown.^^ California's

new no-fault ground for divorce was "irreconcilable differences, which have
caused the irremediable breakdown of the marriage."^^ The first version of the
Uniform Marriage and Divorce Act, promulgated in 1970, also provided for no-

20. Mat 10-11.
21. See Friedman, supra note 6, at 205-06.

22. See Grossberg, supra note 2, at 25 1

.

23. See id.

24. See Lawrence M. Friedman, Rights ofPassage: Divorce Law in Historical Perspective,

63 Or. L. Rev. 649, 659 (1984).

25. 5ee /G?. at 653, 659.

26. See id. at 659.

27. Id at 659-60.

28. Id at 659.

29. 5^6/^. at 660-61.

30. See id da 66\.

3 1

.

See id.

32. Family Law Act, ch. 1608, § 8, 1969 Cal. Stat. 3314 (codified as amended in scattered

sections of Cal. Fam. Code).

33. Family Law Act, ch. 1608, § 8, 1969 Cal. Stat. 3324 (codified as amended at Cal. Fam.

Code §23 10 (West 1994)).



512 INDIANA LAW REVIEW [Vol. 32:509

fault divorce.^"* By 1985, all fifty states had enacted some form of no-fault
divorce laws.^^ The primary goal of these laws was to eliminate a showing of
fault as a requirement for divorce, thereby reducing the adversarial practices that

fault had fostered.^^ Other purposes for abolishing fault grounds included

eliminating collusion and perjury—^which compromised the integrity of the legal
system—closing the gap between the law as written and the law as applied, and
reflecting changes in conceptions of marital breakdown?^ No-fault divorce laws
were passed, not to change divorce radically, but to bring the law into step with

current practice.^^

II. The "New" Divorce Reform Movement

Divorce law critics loudly and frequently attack the grounds for divorce.

Widespread dissatisfaction with the accomplishments ofdivorce law and

with divorce policy form the context of this criticism. It is asserted by

many that divorces are far too numerous in our society, that they
undermine the foundations of family life, that they generate instability

throughout society, and that they leave an ever-increasing proportion of

American children without the security and affection of a united family,

thereby producing juvenile delinquency, truancy, and a variety of

psychological ills.^^

These words could have been plucked from the pages of a current periodical.

Instead, they were written in 1971 and describe the deep discontent that then

existed regarding the country's fault-based divorce laws and high rate of

divorce.'*^ The legal reforms bom ofthis discontent resulted in the current system
of no-fault divorce.

34. Unif. Marriage and Divorce Act §303 (amended 1973), 9A U.L.A. 147 (1987).

35. See Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and

Its Aftermath, 56 U. CiN. L. REV. 1, 54 (1987). See, e.g., ALA. CODE § 30-2-1 (1989); CONN. Gen.

Stat. Ann. § 46b-40 (West 1995); Ga. Code Ann. § 19-5-3 (1991); Idaho Code §§ 32-603, 32-

616 (1996); IND. Code Ann. § 31-15-2-3 (West Supp. 1998); Iowa Code Ann. § 598.17 (West

1996 & Supp. 1998); ME. REV. Stat. Ann. tit. 19-A, § 902 (West 1998); Mass. Gen. Laws Ann.
ch. 208, §§ 1 A, IB (West 1998); MiCH. CoMP. Laws Ann. § 552.6 (West 1988); Minn. Stat. Ann.

§ 518.06 (West 1990); Miss. Code ANN. § 93-5-2 (1994 & Supp. 1998); N.H. Rev. Stat. Ann. §
458:7-a (1992); N.D. CENT. Code § 14-05-03, 14-05-09. 1 (1997); Ohio Rev. Code Ann. § 3 105.01

(Anderson 1996); Or. Rev. Stat. § 107.025 (1996); 23 Pa. Cons. Stat. Ann. § 3301 (West 1991);

R.I. Gen. Laws § 15-5-3.1 (1996); S.D. Codified Laws § 25-4-2 (Michie 1992).

36. See Kay, supra note 35, at 4-5, 46.

37. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 B.Y.U. L.

REV. 79, 93-96 (1991).

38. Seeidzi91.

39. Homer H. Clark, Jr., Divorce Policy and Divorce Reform, 42 U. COLO. L. Rev. 403, 403

(1971).

40. Id



1 999] COVENANT MARRIAGE 5 1

3

Today, a new movement is underway to reduce the number of divorces. In
this movement, no-fault divorce is the culprit. Modern reformists are fueling a
backlash against no-fault divorce and spawning proposals to toughen states'

divorce laws/'

Proponents of restrictive divorce laws blame no-fault divorce primarily for
three conditions: the availability of "unilateral" divorce, the rise in the divorce

rates, and the high social costs exacted by divorce. First, they object to the

practice of unilateral divorce (divorce at the request of one spouse, without the

consent of the other), which they equate with no-fault divorce."*^ In fact,
unilateral no-fault divorce is not available in some states."*^ Even so, this
criticism is curious. Fault-based divorce laws, to which the critics of no-fault

divorce seek to return, did not permit consensual divorce."*"* Rather, the statutes

provided for unilateral divorce only, with an innocent spouse obtaining a divorce

from a guilty spouse.'*^ "The mere mention of permitting divorce by consent

evoke[d] strong resistance, not only from adherents of the traditional notions that

divorce should be awarded to the innocent spouse alone, but also from the

reformers."^^ Couples desiring a consensual divorce, but lacking any of the

necessary grounds, contrived to circumvent the laws and manufacture grounds."^^

In a confused twist of logic, today's reformists, who would permit divorce only
by mutual consent (if then), and who loathe the concept of unilateral divorce, are
seeking to return to a system where unilateral divorce was the only sanctioned
course.

A more basic question is whether unilateral divorce is improper at all.

Even in those statistically rare cases in which one party seeks a divorce
and the other resists, it is difficult to see what evidence a court could rely

upon to hold that the marriage had not broken down. Marriage is a
relationship between two people, and if one of those people is

4 1

.

See, e.g. , MAGGIE GALLAGHER, The Abolition of Marriage ( 1 996); Charles S. Clark,

Is It Time to Crack Down on Easy Divorces?, 6 CQ RESEARCHER 409 (1996); William A. Galston,
Braking Divorce, AM. ENTERPRISE, May/June 1996, at 36; Laura Gatland, Putting the Blame on No-

Fault, A.B.A. J., April 1997, at 50; Herma Hill Kay, 'Family Values ' Embrace Fault in Divorce,

Nat'L L.J., May 1, 1995, at A21; Wardle, supra note 37.

42. See Wardle, supra note 37, at 107.

43. See ALASKA STAT. § 25.24.200 (Michie 1996); ARIZ. Rev. Stat. Ann. § 25-316 (West

1991); CoLO. Rev. Stat. Ann. §14-10-1 10 (West 1997); Conn. Gen. Stat. Ann. § 46b-51 (West

1995); Haw. Rev. Stat. Ann. § 580-42 (Michie 1997); 750 III. Comp. Stat. Ann. 5/401 (West

1993); Miss. Code Ann. § 93-5-2 (1994); Mo. .^^nn. Stat. § 452.320 (West 1997); Ohio Rev. Code

Ann. § 3105.01 (Anderson 1996); 23 Pa. Cons. Stat. Ann. § 3301 (West 1991); Tenn. Code Ann.

§ 36-4-103 (1996); Wash. Rev. Code § 26.09.030 (West 1997); W. Va. Code § 48-2-4 (1996); Wis.

Stat. §767.12(1993).

44. See Friedman, supra note 24, at 653.

45. See Kay, supra note 35, at 28.

46. Clark, supra note 39, at 407.

47. See Friedman, supra note 24, at 659.



514 INDIANA LAW REVIEW [Vol. 32:509

determined that it shall not continue, this would seem to be plain
evidence that the relationship had broken down/^

Another argument against prohibiting unilateral divorce is the principle that no
marriage should be maintained without the consent of both spouses, just as no
marriage can be created without the consent of both bride and groom ."^^

The other two major conditions for which critics blame the current divorce
laws are that the laws have caused an increase in the divorce rate and that the

laws have resulted in unacceptably high social costs. Reformers urge that

divorce must be made more difficult because of the sizable costs that it exacts,
financially and psychologically, on women and children.^^ Each of these
concerns is addressed in detail in later sections of this Note.^*

III. Covenant Marriage

Proposals to reform no-fault divorce laws have been introduced in a majority

of states.^^ One version ofthese proposals is the "covenant marriage." Covenant
marriage legislation is intended to counteract no-fault divorce's perceived effect

on the divorce rate and on children by allowing couples to choose a stricter form

ofmarriage.^^ Some variety ofcovenant marriage legislation has been considered

48. Clark, supra note 39, at 406.

49. See Joseph Goldstein & Max Gitter, On Abolition ofGroundsfor Divorce: A Model
Statute & Commentary, 3 Fam. L.Q. 75, 86 (1968).

50. See, e.g., Wardle, supra note 37, at 1 13-16.

51. See infra ?dir\.\\.

52. See, e.g., H.R. 1 179, 61st Gen. Assembly, 1st Reg. Sess. (Colo. 1997); H.B. 249, 144th

Gen. Assembly, 1997-98 Reg. Sess. (Ga. 1997); H.B. 2839, 77th Leg., 1998 Reg. Sess. (Kan.

1998); H.B. 1 168, 181st Gen. Ct., 1997 Reg. Sess. (Mass. 1997); H.B. 5991, 89th Leg., 1997 Reg.

Sess. (Mich. 1997); H.B. 573, 55th Reg. Sess. (Mont. 1997); A.B. 2547, 207th Leg., 1st Ann. Sess.

(N.J. 1996); S. 1 182, 43d Leg., 1st Reg. Sess. (N.M. 1997); H.B. 2208, 46th Leg. Sess., 2d Sess.

(Okla. 1997); S.B. 1122, 69th Leg. Assembly, Reg. Sess. (Or. 1997); S.B. 840, 181st Gen.

Assembly, 1997-98 Reg. Sess. (Pa. 1997); H.B. 1697, 100th Gen. Assembly (Tenn. 1997); S. 120,

52d Leg. (Utah 1997); H.B. 472, 65th Sess. (Vt. 1997); H.B. 1056, 1998 Sess. (Va. 1998). See also

infra notes 54-74 (citing state legislation regarding covenant marriage).

53. See, e.g.. Hearing on House Bill No. 756 Before the Civil Law and Procedure

Committee, 1997 Reg. Sess. (La. 1997) [hereinafter Hearing]; Catherine Candisky, Lawmakers

Propose Vows to Tie Knot a Little Tighter, COLUMBUS DISPATCH, Aug. 22, 1997, at 4C; Sara

Shipley, Marriage Bill Weakened by Senate Panel: No-Fault Divorce OK with 3-Year Separation,
New Orleans Times-Picayune, June 1 1 , 1997, at A6.



1 999] COVENANT MARRIAGE 5 1

5

in twenty states (Alabama/^* Alaska/^ Arizona,^^ California,^^ Georgia,^*

Indiana,^^ Kansas,^^ Louisiana,^' Michigan,^^ Minnesota,^^ Mississippi,^''

Missouri,^^ Nebraska,^^ Ohio,^^ Oklahoma,^^ South Carolina,^^ Tennessee/^

Virginia,^^ Washington,^^ and West Virginia^^). In July 1997, Louisiana became
the first state to allow couples to opt for a covenant marriage/"*

The Louisiana law requires couples who choose a covenant marriage to
undergo premarital counseling and to include a declaration of their intent to enter

into a covenant marriage with their application for a marriage licenseJ^ The
bases for dissolving a covenant marriage mirror fault-based grounds for divorce.

Under a covenant marriage, a "non-breaching" spouse may be granted a divorce
only if the other spouse has committed one of the following specific acts: (1)

54. H.B. 44, 1998 Reg. Sess. (Ala. 1998); H.B. 30, 1998 Reg. Sess. (Ala. 1998); S.B. 606,

1998Reg. Sess. (Ala. 1998).

55. H.B. 390, 20th Leg., 2d Sess. (Alaska 1997); S.B. 318, 20th Leg., 2d Sess. (Alaska

1997).

56. H.B. 2658, 43d Leg., 2d Reg. Sess. (Ariz. 1998); S.B. 1 133, 43d Leg., 2d Reg. Sess.

(Ariz. 1998).

57. S.B. 2, 1997-98 Reg. Sess. (Cal. 1997); S.B. 1377, 1997-98 Reg. Sess. (Cal. 1997).

58. H.B. 1 138, 144th Gen. Assembly, 1997-98 Reg. Sess. (Ga. 1997); S.B. 440, 144th Gen.

Assembly, 1997-98 Reg. Sess. (Ga. 1997).

59. H.B. 1049, UOth Gen. Assembly, 1st Reg. Sess. (Ind. 1997); H.B. 1052, 110th Gen.

Assembly, 2d Reg. Sess. (Ind. 1998).

60. H.B. 2839, 77th Leg., 1998 Reg. Sess. (Kan. 1997).

61. H.B. 756, 1997 Reg. Sess. (La. 1997).

62. H.B. 5990, 89th Leg., 1998 Reg. Sess. (Mich. 1997); H.B. 5991, 89th Leg., 1998 Reg.

Sess. (Mich. 1997).

63. S.F. 2760, 80th Reg. Sess. (Minn. 1997); S.F. 2935, 80th Reg. Sess. (Minn. 1997).

64. H.B. 1201, 1998 Reg. Sess. (Miss. 1998); H.B. 1222, 1998 Reg. Sess. (Miss. 1998);

H.B. 1645, 1998 Reg. Sess. (Miss. 1998); S. 2910, 1998 Reg. Sess. (Miss 1998).

65. H.B. 1864, 89th Gen. Assembly, 2d Reg. Sess. (Mo. 1998).

66. L.B. 1214, 95th Leg., 2d Reg. Sess. (Neb. 1997).

67. H.B. 567, 122d Gen. Assembly, 1997-98 Reg. Sess. (Ohio 1997).

68. H.B. 2208, 46th Leg. Sess., 2d Sess. (Okla. 1997); S.B. 1115, 46th Leg. Sess., 2d Sess.

(Okla. 1997).

69. S.B. 870, 112th Gen. Assembly (S.C. 1997); S.B. 961, 112th Gen. Assembly (S.C.

1997).

70. H.B. 2101, 100th Gen. Assembly, 1998 Reg. Sess. (Tenn. 1997).

71. H.B.J. Res. 266, 1998 Sess. (Va. 1998); H.B. 1056, 1998 Sess. (Va. 1998); H.B. 1 159,

1998 Sess. (Va. 1998).

72. S.B. 6135, 55th Leg., 1998 Reg. Sess. (Wash. 1997).

73. H.B. 4562, 73d Leg., 2d Reg. Sess. (W. Va. 1998).

74. Act of July 15, 1997, 1997 La. Acts 1380 (codified at La. Rev. Stat. Ann. §§ 9:224-25,

234, 245, 272-75, 307-09 (West Supp. 1998)). Arizona has now become the second state to pass

a covenant marriage bill. Act of May 21, 1998, 1998 ARIZ. SESS. Laws 135.

75. La. Rev. Stat. Ann. §§ 9:272-73 (West Supp. 1998).



5 1

6

INDIANA LAW REVIEW [Vol. 32:509

adultery; (2) commission of a felony and sentence to death or imprisonment at
hard labor; (3) abandonment for at least one year; (4) physical or sexual abuse
of the spouse or a child of one of the spouses; or (5) continuous physical
separation of at least two years7^ Divorce also may be granted following a one-
year legal separation if there are no minor children of the marriage or if the
ground for the separation was abuse; the minimum separation period is eighteen
months if there are minor children/^ However, legal separation itself is available
only upon a showing of one of the grounds required for divorce or "habitual
intemperance of the other spouse, or excesses, cruel treatment, or outrages of the

other spouse, if such habitual intemperance, or such ill-treatment is of such a

nature as to render their living together insupportable."^^ Regardless of the

ground, couples must undergo counseling before obtaining a divorce or legal
separation.^^

In order to gain passage, the Louisiana law was weakened in several respects
during the legislative process. As originally drafted, physical or sexual abuse
would not have been grounds for divorce, but only for legal separation.^^ The
grounds for legal separation also were expanded to include habitual intemperance

or excesses, cruel treatment, or outrages.^ ^ The state Attorney General's Office
was required to develop a pamphlet for couples, explaining the distinctions
between covenant marriage and regular marriage .^^ Perhaps most significantly,

the bill was amended to allow couples to divorce after living apart continuously
for two years—essentially no-fault divorce with a waiting period.^^

The covenant marriage law in Louisiana, like similar efforts in other states,
is the product of a political movement involving conservative Christian groups.
The bill's author. State Representative Tony Perkins, holds degrees from the
Reverend Jerry Falwell's Liberty University and is a longtime Christian and a

member of the Promise Keepers, an evangelical men's movement.^"* All of those
who appeared in support of the bill in a Louisiana House committee and who
identified an affiliation with a particular group were members of Christian
religious organizations.^^ Some see the law as legislating Biblical grounds for
divorce.^^ The reaction of Louisiana's religious institutions, therefore, has been

76. See id. § 9:307.

77. See id.

78. Id

79. See id.

80. See H.B. 756, 1997 Reg. Sess. (La. 1997).

81. See Bruce Nolan, Creating a More Perfect Union? La.'s "Covenant Marriage"

Debated, NEW ORLEANS TiMES-PlCAYUNE, June 29, 1997, at Al

.

82. See Shipley, supra note 53, at A6.

83

.

See Nolan, supra note 8 1 , at A 1

.

84. See Cheryl Wetzstein, Legislative Pioneer Credits Power ofPrayer: Says He "Reaped

Without Sowing, " WASH. TIMES, Oct. 9, 1 997, at A2.

85. See Hearing, supra note 53.

86. See Kevin Sack, Louisiana Approves Measure to Tighten Marriage Bonds, N.Y. TIMES,

June 24, 1997, at Al.



1999] COVENANT MARRIAGE 5 1

7

quite surprising. Initially, it appeared that Louisiana's churches would
encourage, if not require, couples to choose covenant marriage.^^ Indeed, the

state's Southern Baptist churches generally have been supportive.^^ Catholic,

Episcopal, Jewish, and Methodist leaders, however, have been reserved.
^^

Louisiana's Catholic bishops, for example, chose not to endorse covenant

marriage because of the requirement that premarital counseling include an

explanation of the law's higher standards for divorce, a subject that the Catholic

Church will not explore.^^

Proponents of covenant marriage stress that their proposals simply provide

couples with a choice between "regular" marriage and a more committed form.^'

The practical nature of this choice has yet to be determined. During the debate
over the covenant marriage bill in Louisiana, some predicted that real "choice"
would be nonexistent. Couples would be shamed into choosing covenant
marriage for fear of appearing uncommitted to their mate, or the more restrictive
covenant marriages would be chosen in a haze of idealistic premarital bliss.^^ In

fact, few couples have chosen covenant marriages since the law went into
effect.^^ In the first month in which covenant marriage licenses were available,
only twenty-six covenant marriage licenses were issued, out of approximately

3000 total marriage licenses.^"* The discussion of choice, however, avoids the
obvious: Couples have choice without covenant marriage legislation. Couples

already may, and do, make choices about their level of commitment to their
marriages, just as couples make choices about having children or buying a home.
No authorizing statute is required.

87. See Nolan, supra note 8 1 , at A6.

88. See Janet McConnaughey, Covenant Marriages Slow-Going in State, New ORLEANS
Times-PicaYUNE, Oct. 19, 1997, at A4; Bruce Nolan, Bishops Back OffCovenant Marriage, New
Orleans Times-Picayune, Oct. 30, 1997, at Al [hereinafter Bishops Back Off Covenant

Marriage^ ; Nolan, supra note 8 1 , at A 1

.

89. See Bishops Back OffCovenant Marriage, supra note 88, at Al

.

90. See id.

9 1

.

See, e.g. , Amitai Etzioni, Marriage With No Easy Outs, N.Y. TIMES, Aug. 13,1 997, at

A23.

92. See, e.g., Margaret Carlson, Till Depositions Do Us Part, Time, July 7, 1997, at 21;
Nolan, supra note 81, at Al; Editorial, Cracking Down on Divorces, TULSA WORLD, Aug. 23, 1997,

at A15.

93. See Julie Kay, Covenant Couples Few: Only 5 Licenses Obtained in Baton Rouge,

Baton Rouge Advoc, Oct. 25, 1997, at IC; Victoria Loe, Covenant Marriages Get Mixed

Reception: Many Couples Find More-Binding Nuptials Confusing, DALLAS MORNING NEWS, Sept.

14, 1997, at 43A; Janet McConnaughey, Few Seeking Licenses Under New Covenant Marriage

Law, Baton Rouge Advoc, Aug. 24, 1997, at 3B; New Form ofMarriage Not That Popular,

Charleston Gazette & Daily Mail, Oct. 15, 1997, at 3D.
94. See New Form ofMarriage Not That Popular, supra note 93, at 3D.



518 INDIANA LAW REVIEW [Vol. 32:509

IV. The Impact OF No-Fault Divorce

Covenant marriage is proposed to reduce the harm caused by divorce, and in
particular, by no-fault divorce. The targeted "harms" include the effects of
divorce on children and spouses, the relationship between no-fault divorce and
the financial status ofwomen, and the impact of no-fault divorce on the divorce
rate.

A. On Children

Scholars differ about the precise effects of divorce on children, but the
weight of the evidence suggests that children suffer the consequences of their
parents' estrangement. Covenant marriage proponents' loudest cry is for the
need to protect children from this harm by restricting access to divorce.

In 1989, Judith Wallerstein and Sandra Blakeslee published their landmark

book, Second Chances, in which they followed sixty divorced families in
California over a period of fifteen years.^^ In their book, Wallerstein and

Blakeslee chronicled in gripping detail and for the first time the traumatic effects

of divorce on children, both at the time of divorce and throughout later life. They
concluded, "[d]ivorce is a wrenching experience for many adults and almost all
children. It is almost always more devastating for children than for their
parents."^^ The effects were felt by all age groups. Preschool children suffered
problems with separation; had trouble settling down or sleeping; resumed earlier
behaviors such as thumb-sucking, bedwetting, or attachment to security objects;

and became cranky, sad, and withdrawn.^^ Children aged five through eight
experienced feelings of loss, rejection, guilt, and loyalty conflicts, and many
suffered declines in school performance.^^ Nine- to twelve-year-olds felt anger,

grief, anxiety, and loneliness, and sometimes exhibited somatic symptoms,

delinquent behavior, and drops in school performance.^^ Adolescents were at

particular risk, dealing with rejection and anxiety resulting from the collapse of

their family structure just at the time that they are exploring their own sense of
identity.^''

Wallerstein and Blakeslee's study has been criticized for its lack of a control

group and for its failure to consider the psychological adjustment of the children

in the study prior to their parents' divorce. ^^' However, other studies also have

found that divorce has harmfiil effects on children. Children of divorce have an

increased risk of disruptive disorders, anxiety disorders, and attention deficit

95. Judith S. Wallerstein & Sandra Blakeslee, Second Chances ( 1 989).
96. Id. at 297.

97. See id. at 282-83.

98. See id at 2S3.

99. See id at 284.

100. See id at 2S4-S5.

101. See, e.g., Barbara Ehrenreich, In Defense ofSplitting Up: The Growing Antidivorce

Movement is Blind to the Costs ofBad Marriages, TIME, Apr. 8, 1996, at 80; Katha Pollitt, What's

Right About Divorce, N.Y. TIMES, June 27, 1997, at A29.



1 999] COVENANT MARRIAGE 5 1

9

hyperactivity disorders compared to children from intact families, regardless of
the child's pre-divorce temperament or adjustment.'^^ Preschool children

exposed to parental separation are more vulnerable to disruptive behavior
problems and mood disorders, and children exposed to parental separation after
age ten show increased risk of substance abuse. '^^ Divorce affects children's
self-esteem,'^"^ and young adult children of divorced parents experience more
problems with submission and overcontrol.'^^ In addition, the probability of

attending college is lower for children from disrupted families than for those

whose parents remain together.'^^ Some of the behavior problems observed in
children of divorce appear to be linked to a decline in economic circumstances.'^^

Some researchers have discovered that it is other factors in a child's life,
rather than the divorce itself, that increases the risk of psychological problems.

As Wallerstein and Blakeslee pointed out:

Divorce is not an event that stands alone in children's or adults'

experience. It is a continuum that begins in the unhappy marriage and

extends through the separation, the divorce, and any remarriages and

second divorces. Divorce is not the culprit; it may be no more than one
of the many experiences that occur in this broad continuum. '^^

This body of research suggests that many children's problems previously
associated with divorce actually are "present many years before the marital
disruption" '^^ and that "exposure to these conditions may compromise children's
economic, social, and psychological well-being in later life whether or not a

separation takes place.""^ According to one leading study:

[T]he evidence suggests that much of the effect of divorce on children
can be predicted by conditions that existed well before the separation

1 02. See Stephanie Kasen et al., A Multiple-Risk Interaction Model: Effects ofTemperament

and Divorce on Psychiatric Disorders in Children, 24 J. ABNORMAL CHILD PSYCHOL. 121, 140-42

(1996).

1 03. See David M. Fergusson et al., Parental Separation, Adolescent Psychopathology, and

Problem Behaviors, 33 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1 122, 1 129 (1994).
104. See Melissa K. Bynum & Mark W. Durm, Children ofDivorce and its Effect on Their

SelfEsteem, 79 PSYCHOL. REP. 447, 449 (1996).

105. See Robert Bolgar et al., Childhood Antecedents ofInterpersonal Problems in Young

Adult Children ofDivorce, 34 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 143 (1995).
1 06. See Mike Powers, The Hidden Costs ofDivorce, 25 HUM. ECOLOGY F. 4 ( 1 997).

107. See Donna Ruane Morrison & Andrew J. Cherlin, The Divorce Process and Young
Children 's Weil-Being: A Prospective Analysis, 57 J. MARRIAGE & Fam. 800, 811 (1995).

1 08. Wallerstein & Blakeslee, supra note 95, at 297.
109. Paul R. Amato & Alan Booth, A Prospective Study of Divorce and Parent-Child

Relationships, 58 J. MARRIAGE & Fam. 356, 363-64 (1996).
110. Frank F. Furstenberg, Jr. & Julien O. Teitler, Reconsidering the Effects of Marital

Disruption: What Happens to Children ofDivorce in Early Adulthood?, 15 J. FAM. ISSUES 173, 187

(1994).



520 INDIANA LAW REVIEW [Vol. 32:509

occurred. . . . [TJhose concerned with the effects of divorce on children
should consider reorienting their thinking. At least as much attention
needs to be paid to the processes that occur in troubled, intact families

as to the trauma that children suffer after their parents separate.''^

These studies warn that "failure to take into account the family processes and
individual characteristics that lead up to marital dissolution may misrepresent or
at least overstate the cost of divorce to children."'

^^

The quality of the parents' marriage deserves particular attention. Several
studies have determined that marital quality and parental conflict, not divorce,

influence children's adjustment.''^ One such study found that if conflict between
parents is relatively low, children are worse off in early adulthood if their parents

divorce, but if conflict between parents is high, children are better off if their

parents divorced than if they remained married."'*

While these studies focus on the precise cause of the social or emotional
difficulties children of divorce experienced, a sizable body of scholarship reveals
few or no differences between children whose parents have divorced and children
of intact families. Divorce has been found to have negligible socio-emotional

effects on adolescents,"^ teens from divorced families have been found to be just

as well-adjusted as teens from intact families,"^ and young adults from divorced

and intact families have been found to exhibit few significant differences."^ One
study found that marital disruption increased boys' behavioral problems but had

no effect on girls' behavioral problems."^ Regarding later adult relationships,

young adults indicate a desire for and strong commitment to marriage, regardless
of their parents' marital status,"^ and adult children from divorced and intact

111. Andrew J. Cherlin et al., Longitudinal Studies ofEffects ofDivorce on Children in Great

Britain and the United States, 252 Sci. 1386, 1388 (1991).

112. Furstenberg & Teitler, supra note 1 1 0, at 1 88.
113. See Amato & Booth, supra note 109, at 358; Teresa M. Cooney & Jane Kurz, Mental

Health Outcomes Following Recent Parental Divorce: The Case of Young Adult Offspring, 17 J.

Fam. Issues 495, 509 (1996); Fergusson et al., supra note 103, at 1 129-30; Jean M. Muransky &
Darlene DeMarie-Dreblow, Differences Between High School Studentsfrom Intact and Divorced

Families, 23 J. DIVORCE & REMARRIAGE 187, 193-94 (1995); Karen Westervelt & Brian
Vandenberg, Parental Divorce and Intimate Relationships ofYoung Adults, 80 PSYCHOL. REP. 923,

926(1997).

1 14. See Paul R. Amato et al.. Parental Divorce, Marital Conflict, and Offspring Weil-Being

During Early Adulthood, 73 SOC. FORCES 895 (1995).

115. See Ketty P. Gonzalez et al.. Adolescents from Divorced and Intact Families, 23 J.

Divorce & Remarriage 165, 172-73 (1995).
1 16. See Muransky & DeMarie-Dreblow, supra note 1 13, at 194.
117. See Julie J. Evans & Bernard L. Bloom, Effects ofParental Divorce Among College

Undergraduates, 26 J. DIVORCE & REMARRIAGE 69, 85 ( 1 996).
118. See Morrison & Cherlin, supra note 1 07, at 8 1 0- 1 1

.

1 1 9. See Cathy Landis-Kleine et al.. Attitudes Toward Marriage and Divorce Held by Young

Adults, 23 J. Divorce & Remarriage 63, 70 ( 1 995).



1 999] COVENANT MARRIAGE 52

1

families show no difference in their own marital quality. '^^

B. On Spouses

Divorce is commonly associated with various forms of psychological and
physical distress, leaving the impression that divorced people are unhappier and

unhealthier than their married counterparts. For instance, according to William

Galston, University of Maryland professor and former assistant to President

Clinton for domestic policy, divorced men are twice as likely to die from heart
disease, stroke, hypertension, and cancer as married men.'^' A divorced woman's
risk of dying from cancer is two to three times higher than the risk for a married

woman. *^^

Research, however, reveals a subtler relationship: It is social attachment, not

marital status, that affects a person's well-being.'^^ The presence or absence of
a partner does have an impact on distress, but the presence or absence of a

marriage does not.^^'* Similarly, it is the lack of social and economic support that

produces the negative consequences of divorce on individuals, not the fact of

divorce itself. ^^^ Finally,

[ajlthough social attachments are associated with low depression levels,

on average, negative social attachments are worse than none. People

who report that their relationships are unhappy, that they often consider
leaving their spouse or partner, and that they would like to change many
aspects of their relationship have higher distress levels than people

without partners. It is better to have no relationship than to be in a bad

relationship.'^^

C On the Financial Status of Women
Divorce exacts a serious economic toll on women and children, but no-fault

divorce laws do not exacerbate the problem. In a pioneering study, Lenore

Weitzman found that in the first year after divorce, men experience an average
of a forty-two percent increase in their standard of living, while women
experience a seventy-three percent decline. '^^ This study launched a critical

evaluation of the nation's no-fault divorce laws. The reasons that Weitzman
cited for this disparity included the inadequacy of financial awards granted to

1 20. See Pamela S. Webster et al., Effects ofChildhood Family Background on Adult Marital

Quality and Perceived Stability, 1 1 AM J. SOC. 404, 426 ( 1 995).
121. William A. Galston, Divorce American Style, PUB. INTEREST, Summer 1 996, at 1 2.

122. See id.

123. See Catherine E. Ross, Reconceptualizing Marital Status as a Continuum of Social

Attachment, 57 J. MARRIAGE & Fam. 129, 137 (1995).
124. See id

125. SeeidatUS.

126. Id at 139.

1 27. Lenore J. Weitzman, The Divorce Revolution 323(1 985).



522 INDIANA LAW REVIEW [Vol. 32:509

women at divorce, the greater demands placed on women's limited resources
after divorce, and the discrepancy between former husbands' and wives' earning

I TO
power.

However, Richard Peterson, of the Social Science Research Council, has
shown that Weitzman's results were in error,*^^ as even Weitzman now admits.'^^
Peterson's analysis indicates that the rise in men's standard of living after

divorce is ten percent, and the decline in women's standard of living is twenty-
seven percent.'^' This, of course, still represents a significant gap in the financial

status of men and women after divorce, but Peterson asserts that the introduction
of no-fault divorce did not increase the gender gap.'^^ Other studies similarly

have shown that no-fault divorce laws have little impact on the economic
circumstances ofwomen after divorce*^^ and that fault-based divorce laws do not
protect divorced women against the economic hardship of divorce.^^"^ Despite the
lower standard of living that women face after divorce, throughout American
history women have filed the majority of divorce actions. '^^

D. On the Divorce Rate

There is no clear evidence that no-fault divorce has had any effect on the

divorce rate in this country. One ofthe concerns most frequently cited in support
of covenant marriage proposals is the need to take action to reduce the nation's

high divorce rate.'^^ According to this view, the divorce rate has increased as a

result of no-fault divorce, so rolling back no-fault divorce laws will stem the tide

in the divorce rate.

Divorces in America began increasing in the Nineteenth Century.'^^ By the
first half of this century, the divorce rate was relatively stable, ranging between

128. /^. at 340-43.

129. Richard R. Peterson, A Re-Evaluation ofthe Economic Consequences ofDivorce, 61

Am. Soc. Rev. 528, 534 (1996).

130. Lenore J. Weitzman, The Economic Consequences of Divorce Are Still Unequal:

Comment on Peterson, 61 Am. Soc. Rev. 537, 538 (1996).

131. Peterson, supra note 1 29, at 534.

132. Richard R. Peterson, Statistical Errors, Faulty Conclusions, Misguided Policy: Reply

to Weitzman, 61 AM. Soc. REV. 539, 540 (1996).

133. See Herbert Jacob, Another Look at No-Fault Divorce and the Post-Divorce Finances

of Women, 23 LAW & Soc'Y REV. 95, 1 1 1 (1989).
134. See Kay, supra note 35, at 68-70.

135. See Lawrence M. Friedman & Robert V. Percival, Who Suesfor Divorce? From Fault
Through Fiction to Freedom, 5 J. LEGAL STUD. 61, 70-75 (1976).

1 36. See, e.g. , Ashton Applewhite, Would Louisiana 's "Covenant Marriage " Be a GoodIdea

for America?, INSIGHT MAG., Oct. 6, 1997, at 25; Duren Cheek, "Covenant Marriage" May Soon

Be Option, Tennessean, Oct. 9, 1997, at lA; Mary Beth Lane, "Covenant Marriage" Bill

Testimony Marked by Tears, PLAIN DEALER, Oct. 16, 1997, at 5B; Ted Roelofs, Plan Aims to Help

Marriages, GRAND Rapids PRESS, Oct. 6, 1997, at Al.

137. See^wpra notes 17-18 and accompanying text.



1999] COVENANT MARRIAGE 523

2.1 and 2.6 divorces per thousand population.
'^^ The trend that troubles policy-

makers is the steady rise in the divorce rate that began in 1967.'^^ Between 1967

and 1981, the divorce rate more than doubled, growing from 2.6 per thousand
population in 1967 to 5.3 per thousand population in 1981.'"*^

There is much debate about why this increase occurred. Some, including
those who seek to promote covenant marriage, argue that the growth in the
divorce rate was the result of no-fault divorce. Others cite different factors, such

as women's entrance into the workforce, which granted women greater social and
economic independence, and cultural change, such as increased individualism

and greater expectations of marriage. As support for these sociological
explanations for the increase in the divorce rate, many point to the fact that this
latest rise in divorce began before California enacted the first no-fault divorce

law.

Researchers have attempted to demonstrate empirically whether no-fault

divorce laws affected the divorce rate. The results are inconclusive. Most
studies have found no effect,'"*' while some have found a limited effect,''*^ and
some have found a significant positive effect.'"*^ Perhaps the most conclusive
proof is time. Since 1981, the divorce rate in America has been declining, down
to 4.6 divorces per thousand population in 1994, the lowest rate since 1974.''*'*

V. Why Marriages Last

If one desires to focus attention on reducing the harmful effects of divorce,

one must attempt to uncover what makes some marriages successful. Although
to some, "success" simply may mean years of marriage, here the term will be
expanded to encompass happiness in marriage. The secret formula remains
elusive, but certain ingredients appear to be important.

138. See Nat'l Center for Health Stat., Monthi-y Vital Stat. Rep., Annual Summary

ofBirths, Marriages, Divorces, and Deaths: United States, 1994, Oct. 23, 1995, at 4.

139. See id.

140. See id

141. See, e.g., GARY S. BECKER, A TREATISE ON THE FAMILY 333-34 (1991); David Lester,
Trends in Divorce and Marriage Around the World, 25 J. DIVORCE & REMARRIAGE 169, 170
(1996); H. Elizabeth Peters, Marriage and Divorce: Informational Constraints and Private

Contracting, 76 AM. ECON. Rev. 437, 452 ( 1 986).

142. See, e.g., Thomas B. Marvel!, Divorce Rates and the Fault Requirement, 23 L. & SOC'Y
Rev. 543, 563-64 (1989); Martin Zelder, The Economic Analysis ofthe Effect ofNo-Fault Divorce

on the Divorce Rate, 16 Harv. J.L. & PUB. POL'Y 241, 256-57 (1993).
143. See, e.g., Michael P. Kidd, The Impact ofLegislation on Divorce: A Hazard Function

Approach, 11 APPLIED EcON. 125 (1995); Paul A. Nakonezny et al., The Effect ofNo-Fault Divorce

Law on the Divorce Rate Across the 50 States and Its Relation to Income, Education, and

Religiosity, 57 J. MARRIAGE & Fam. 477, 485-87 ( 1 995).
1 44. See Nat'l CENTER FOR Health Stat., supra note 1 3 8, at 4; Nat'l Center for Health

Stat., Monthly Vital Stat. Rep., Advance Report ofFinal Divorce Statistics, 1989 and 1990,

March 22, 1995, at 9.



524 INDIANA LAW REVIEW [Vol. 32:509

Since completing their compelling study of divorced couples and their
children,''*^ Wallerstein and Blakeslee have tackled a different subject in their

recent book The GoodMarriage. ^^^ As the title suggests, the authors interviewed
fifty couples in an attempt to discover common attributes of successful
marriages. ^"^^ As a result of their research, Wallerstein and Blakeslee identify
nine tasks that couples must address in order to build and maintain a happy
marriage. Describing these tasks as building blocks, the authors observe that

"[i]f the issues represented by each psychological task are not addressed, the
marriage is likely to fail, whether the couple divorces or remains legally

married."'"^^ The nine tasks described by Wallerstein and Blakeslee are: (1)
complete the transition into adulthood by detaching from the family of origin (or

in a second marriage, from the former spouse), committing emotionally to the

new partner and relationship, and building new connections with extended
families;

'"^^
(2) build togetherness and unity while carving out areas of

autonomy;'^^ (3) maintain a balance between the responsibilities of parenthood

and nurturing the adults' relationship;
^^^

(4) manage challenge and adversity in
ways that strengthen rather than weaken the relationship;'^^ (5) make the
relationship a safe place for expressing conflict, disagreement, and anger;'^^ (6)
maintain a pleasurable and fulfilling sexual relationship;'^"^ (7) include laughter

and humor; '^^ (8) provide emotional nurturance and encouragement;'^^ and (9)
draw on the images and joy of the early relationship and combine those with a
realistic perspective of the present. '^^ Another study, consisting of fifty-seven

couples who had been married between twenty-five and forty-six years, found
similar answers to the question of what makes marriages thrive.

'^^

145. See WALLERSTEIN & Blakeslee, supra note 95

.

146. Judith Wallerstein & Sandra Blakeslee, The Good Marriage (1995).
147. Mat 8-11
148. Mat 331.
149. Id.

150. Id.

151. Mat 331-32.
152. Mat 332.
153. Id

154. Id

155. Id

156. Id

157. Id

158. See Florence Kaslow & James A. Robison, Long-Term Satisfying Marriages:
Perceptions of Contributing Factors, 24 AM. J. Fam. THERAPY 153, 165-67 (1996). This study

described the essential ingredients of a successful marriage as including: commitment to the

marriage and the spouse; respect for and responsibility to the spouse; fidelity, integrity, loyalty, and

an expectation of reciprocity; trust, mutual support, and accountability; love, sense of belonging,

and personal development; good communication skills; flexibility, cooperation, and good problem-

solving skills; equitable power distribution, shared leadership, and joint decision-making;

compromise and creativity in handling differences; shared values or spirituality; and fun and



1999] COVENANT MARRIAGE 525

Other research has looked at the impact of specific factors on marital quality.

A sampling ofthat research confirms that daily behaviors and exchanges between
spouses/^^ spouses' conflict resolution styles,'^^ health problems/^' and socio-

economics/^^ among other factors, all may influence marital satisfaction.
Interestingly, attitudes toward divorce do not seem related to marital

disruption.
'^^

VI. Analysis AND Recommendations

To analyze the potential effectiveness of the new covenant marriage
proposals, it is important to identify the specific goals which the proposals seek

to achieve. These goals include: lowering the divorce rate, returning to fault

grounds for divorce, requiring a waiting period before a no-fault divorce can be

granted, requiring counseling, and improving the economics for women and
children. The following analysis addresses the likely impact of covenant
marriage on each of these goals, and suggests other recommendations for

achieving them.

A. Goal: Lower the Divorce Rate

If covenant marriage is proposed as a means simply to bring down the rate
of divorce in America by rolling back no-fault divorce, the proponents of

covenant marriage have missed the mark. The evidence that no-fault divorce has

had any effect on the divorce rate is, at best, inconclusive and suggests that no-

fault divorce laws were not the cause of the latest rise in the divorce rate

observed from the late 1960s through the early 1980s.^^ In fact, the trend is not

limited to the United States. "[I]n all Western countries where divorce is

permitted, divorce rates have risen steadily over the [past hundred years], have

fluctuated following each ofthe world wars, and have accelerated from sometime

in the 1960s or early 1970s until the early 1980s."^^^ Furthermore, in recent

years, divorce rates in this country have been decreasing on their own, suggesting

friendship. Id.

159. See Patti L. Johnson & K. Daniel O'Leary, Behavioral Components of Marital
Satisfaction: An Individualized Assessment Approach, 64 J. CONSULTING & CLINICAL PSYCHOL.
417,420-21(1996).

160. See Lawrence A. Kurdek, Predicting Change in Marital Satisfactionfrom Husbands

'

and Wives ' Conflict Resolution Styles, 57 J. MARRIAGE & Fam. 153, 161 (1995).
161. See Alan Booth & David R. Johnson, Declining Health and Marital Quality, 56 J.

Marriage & Fam. 2 1 8, 222 ( 1 994).
162. See Jessie M. Tzeng & Robert D. Mare, Labor Market and Socioeconomic Effects on

Marital Stability, 24 SOC. Sci. RES. 329, 348-49 (1995).

163. See Kristin G. Esterberg et al.. Transition to Divorce: A Life-Course Approach to
Women 's Marital Duration and Dissolution, 35 Soc. Q. 289, 302-03 (1994).

1 64. See supra notes 1 4 1 -42 and accompanying text.

1 65. Roderick Phillips, Putting Asunder 584 ( 1 988).



526 INDIANA LAW REVIEW [Vol. 32:509

that legislative intervention, even if effective, is unnecessary.'^^

Divorce is a complicated function of many socioeconomic and cultural
factors. In the final paragraph of his book on the history of divorce over the last
thousand years of Western culture, Roderick Phillips concludes:

[M]arriage stability, marriage breakdown, and divorce cannot be

understood in isolation from their social context. It is fundamentally

misleading and pointless to interpret the increase in marriage breakdown

and divorce as evidence of the decline of matrimonial commitment or
domestic morality. Marriage is integral to broad social, economic,

demographic, and cultural processes, and it is entirely futile to expect

marriage to remain constant or to have a consistent social meaning while
social structures, economic relationships, demographic patterns, and

cultural configurations have undergone the massive changes of the past

centuries. If this book has shown anything, it is that divorce and
marriage breakdown have their place in the history of Western society.
Yet although we can isolate them as themes for particular study, they
cannot be analyzed or understood without reference to the many broader
facets of historical change.

'^^

Several recent historical conditions may contribute to divorce in today's
society. The most obvious and frequently cited factor in the latter half of the
Twentieth Century is the dramatic entrance of women, and married women in
particular, into the labor market. '^^ This factor alone has wrought enormous

change in the concept of marriage and in the marital relationship. Employment
can raise women's self-esteem, economic independence, and sense of alternatives
outside of marriage. Employment of both spouses also creates pressure and
stress within the family. Traditional gender roles, in which the husband was the
breadwinner and the wife was responsible for maintaining the home and caring
for the children, are utterly shattered. '^^ During the same time that the family
structure was responding to these massive changes, individuals' expectations of
emotional fulfillment from marriage increased.*^^

Changing the law to make divorce more difficult to obtain will not address
any of these cultural challenges to marriage. As history has shown, restricting
access to divorce as a means to reduce the divorce rate may be no more than an
empty exercise. "[P]revailing customs and peoples' immediate wants can totally

thwart and not just partly circumvent laws enacting morality."'^' While attitudes

toward divorce have changed in the last several decades,'^^ an individual's

166. See supra note 141 and accompanying text.

167. Phillips, supra note 165, at 640.

168. See, e.g., id. at 620-22; Tzeng & Mare, supra note 162, at 348-49.
169. See PHILLIPS, supra note 165, at 620-22; Esterberg et al., supra note 163, at 302-03:

Kay, supra note 35, at 21; Tzeng & Mare, supra note 162, at 349.
170. See PHILLIPS, supra note 165, at 623-24.

171. Marvell, supra note 142, at 565.

1 72. See PHILLIPS, supra note 1 65, at 624-27.



1999] COVENANT MARRIAGE 527

attitude toward divorce does not make him or her more or less likely to
divorce. ^^^ Furthermore, current divorce rhetoric does couples an injustice. The
"easy" divorce is lamented, resulting in proposals to make divorce more difficult
For the vast majority of couples, there is no such thing as an easy divorce, no
matter what the controlling law. "The moment when it first becomes apparent
that one's marriage was a mistake is the beginning of probably the longest,
darkest period in the human lifetime."'^"*

B. Goal: Return to Fault Groundsfor Divorce

Under Louisiana's new covenant marriage law, divorce may be obtained by
an "innocenf spouse if the other spouse has committed acts of adultery, felony,

abandonment, or physical or sexual abuse. ^^^ These are similar to the grounds

found in divorce statutes during the 1960s.^^^ The reintroduction of fault-based
grounds into the legal scheme of divorce is especially troubling. Such a
suggestion belies either a lack of understanding or a conscious disregard of

history. First, history has shown that even under a fault-based system of divorce,

divorce rates rose.'^^ Second, the recent transition to no-fault divorce should

serve as a reminder that it was the serious and increasingly unacceptable
shortcomings of fault-based divorce that led to the development of no-fault

divorce in the first place.^^^ Third, the requirement of proof of fault in a divorce

proceeding by an "innocenf spouse against a "guilty" spouse reflects a

characterization of spousal relationships that was outmoded thirty years ago and
is hardly recognizable today. In a 1964 article describing the need to replace

fault grounds in divorce, a University of Colorado law professor observed,

[t]he matrimonial offenses which are listed as grounds for divorce are

not usually the basic psychological causes of marital failure, but more
often are either symptoms of that failure, or are pretexts for escaping
from the problems ofmarriage. Thus, the offense alleged should be seen

as only one symptom of a larger problem—^the overall disintegration of
the marriage. The responsibility for the breakdown of the marriage is
frequently shared by both spouses; hence, the present legal theory that

one spouse is guilty and the other innocent is unrealistic.'^^

Perhaps the most striking indictment of a return to fault grounds for divorce

comes from the fact that many of the most outspoken and harshest critics of
divorce and its consequences oppose a return to fault. Barbara Dafoe Whitehead,

who gained popularity with conservatives for hQV Atlantic Monthly article entitled

173. See Esterberg et al., supra note 163, at 302.

1 74. Nora Johnson, A Marriage on the Rocks, ATLANTIC MONTHLY, July 1 962, at 48.

175. La. Rev. Stat. Ann. § 9:307 (West. Supp. 1998).

176. See Friedman, supra note 24, at 661

.

1 77. See supra notes 1 7-3 1 and accompanying text.

1 78. See supra notes 36-38 and accompanying text.

179. Clark, supra note 39, at 405.



528 INDIANA LAW REVIEW [Vol. 32:509

Dan Quayle Was Right^^^ and who also has authored a highly critical book
entitled The Divorce Culture,

^^^
argues that ending no-fault divorce will only add

to the damage of divorce. '^^ A return to fault-based grounds for divorce will
increase the costs of divorce actions, draining the pool of marital assets available

to women and children, and will intensify the pain for children as their parents
attribute blame for their breakup.'" Whitehead concludes that "[n]o-fault laws
didn't create the divorce culture. The divorce rate began to go up nearly a decade
before states adopted them. Repealing the no-fault system isn't the way to bring
it back down."*^"* Wallerstein and Blakeslee, in their book on the long-term
consequences of divorce on former spouses and children, wrote:

Our findings do not support those who would turn back the clock. As
family issues are flung to the center of our political arena, nostalgic

voices from the right argue for a return to a time when divorce was
difficult to obtain. But they do not offer solutions to the serious

problems that have contributed to the rising divorce rate in the first

place. . . . Like it or not, we are witnessing family changes which are an
integral part of the wider changes in our society.

'^^

In a recent interview on the subject ofcovenant marriage and making divorce

more difficult, Wallerstein said, "I'm a little worried. In America we tend to rush
into things without thinking what their unintended consequences may be. . . . If
you make divorce very difficult, you may get higher abandonment. You might
get children even less protected economically."*^^ In another interview, she

observed, "I think we have no idea how this is going to affect children, and
divorces in situations where parents declare in a public forum what their

accusations are against each other will cause a great deal of pain.'"^^

In an article published, perhaps prophetically, in the Louisiana Law Review,
a law professor and advocate of divorce law reform warned "[t]he unprecedented

nature of many of the phenomena facing the family law reformer today means
that we cannot simply plug in legal devices which worked well in an earlier time
and under different conditions."'^^ Even Lenore Weitzman, who severely
criticizes no-fault divorce for causing economic harm to women and children.

1 80. Barbara Dafoe Whitehead, Dan Quayle Was Right, ATLANTIC MONTHLY, Apr. 1993, at

47.

181. Barbara Dafoe Whitehead, The Divorce Culture ( 1 997).

1 82. Barbara Dafoe Whitehead, Should Breaking Up Be Harder to Do? No-Fault Divorce

Statutes Should Not Be Repealed, L.A. DAILY J., Jan. 17, 1997, at 6.

183. See id

184. Id

1 85. Wallerstein 8l Blakeslee, supra note 95, at 305.

1 86. Mary Ann Hogan, The Good Marriage?, MOTHER JONES, July-Aug. 1 995, at 1 8.

1 87. Julie Irwin, Ohio Bill Would Raise Barfor Divorce, CINCINNATI ENQUIRER, Aug. 20,

1997, at Al.

188. Mary Ann Glendon, Family Law Reform in the 1980's, 44 LA. L. REV. 1553, 1555

(1984).



1 999] COVENANT MARRIAGE 529

does not advocate a return to fault.

We do not have to abandon the nonadversarial aims of the no-fault
reforms to accomplish these goals. Nor do we have to return to the
charade of the fault-based traditional system. The reformers correctly
diagnosed many of the problems in the traditional system and correctly
prescribed remedies to alleviate them. . . . This research has shown that
the no-fault reforms have generally had a positive effect on the divorce

ion

process ....

Finally, the American people are ambivalent about changing divorce laws.
In a recent Time/CNN poW, fifty percent of those surveyed said that it should be
harder for married couples to get a divorce, yet fifty-nine percent said that the

government should not make it harder for people to get a divorce.'^^
Rather than attempting to make divorce more difficult, in a yearning for some

ideal family of an imaginary past, policy-makers should focus on the cultural and

socioeconomic realities that contribute to divorce today. A thorough analysis of
these subjects is beyond the scope of this Note, but several areas merit attention.

Spouses should be given support for coping with new gender roles and new
models of distribution of labor within the household. Economic and educational
opportunities should be available to both spouses to provide adequate financial

support for the family. Accessible and affordable child care must be available

for working parents. Finally, workplace demands and personnel policies should

enable spouses to invest in and nurture satisfying marital and family

relationships.

C Goal: Require a Waiting Period Before a No-Fault Divorce
Can Be Granted

States should proceed cautiously when considering longer waiting periods
preceding divorce. Although it was not included in the original version of the
bill, the covenant marriage law passed in Louisiana allows a couple to obtain a

divorce from a covenant marriage "after living separate and apart continuously

without reconciliation for a period of two years."'^' Under the traditional
marriage law in Louisiana, a couple may divorce after a six-month separation. '^^

Prior to the transition to no-fault divorce, several states' divorce laws allowed

divorce after lengthy separations. ^^^ Many of these states reduced the waiting
period when no-fault laws were passed.

^^"^

1 89. Weitzman, supra note 1 27, at 366, 382.

190. See Walter Kirn, The Ties That Bind, TlME MAG., Aug. 18, 1997, at 49.

191. La. Rev. Stat. Ann. § 9:307 (West Supp. 1998).

192. La. Civ. Code Ann. art. 102, 103 (West 1993 & Supp. 1998).
193. See Kay, supra note 35, at 6; Marvell, supra note 142, at 544; Walter Wadlington,

Divorce Without Fault Without Perjury, 52 Va. L. Rev. 32, 52-68 (1966).

194. See Marvell, supra note 142, at 552-54. See, e.g., Md. CODE ANN., Fam. Law § 7-103

(1991); N.C. Gen. Stat. § 50-6 (1996); S.C. Code Ann. § 20-3-10 (Law. Co-op. 1985); Vt. Stat.



530 INDIANA LAW REVIEW [Vol. 32:509

One researcher found that states that shortened the separation period required
to obtain a divorce experienced a rise in their divorce rates. '^^ From this, he
inferred that "longer waiting periods might reduce the number of divorces in a
state . . .

."'^^ However, he was careful to point out that it was not clear whether
this effect might be the result of longer waiting periods prompting more
reconciliations or more out-of-state divorces. ^^^

The theory behind an extensive waiting period is that it gives couples a
chance to "cool off," think carefully about whether they truly want to terminate
their marriage, engage in counseling, or attempt reconciliation. Couples can, of
course, voluntarily take the time to do all of these things before filing for divorce.

State-mandated separation periods can create risks. For instance, some couples
may have no interest in taking time to reconsider their decision to divorce,
resulting in a new era of migratory divorce.

More devastating is the potential impact of mandatory waiting periods on
women and children. Already economically disadvantaged by divorce, women
and children may now be faced with enduring a lengthy separation period during
which they would not have the benefit of property division or child support
payments available upon divorce. Resort to the old familiar devices of
abandonment, collusion, and perjury to demonstrate "faulf is inevitable.

'^^

Ironically, the statutory separation requirement itself may thwart
reconciliation. Since the statute requires that the couple live apart "continuously

without reconciliation"'^^ for two years, couples who wish to preserve their
option to divorce may be discouraged from attempting to resume cohabitation or
marital relations.

D. Goal: Require Counseling

Louisiana's covenant marriage law, like covenant marriage bills in other

states, requires couples to participate in premarital counseling before getting a

marriage license and requires them to seek counseling again before being granted

a divorce. Chicago Tribune columnist Clarence Page echoes the reaction of

many people in declaring the requirement of premarital counseling, "the best part
of the bill."^^^ In the Time/CNN poW on Americans' attitudes toward divorce,
sixty-four percent of respondents said that couples should be required to take a

marriage education course before they can get a marriage license.
^^'

Increasing the availability of premarital counseling or marriage education

Ann. tit. 15, § 551 (1989); Va. Code Ann. § 20-91 (Michie 1995).

195. Marvel!, supra note 142, at 563-65.

196. /^. at 564.

197. Id.

198. See supra notes 24-30 and accompanying text.

199. La. Rev. Stat. Ann. § 9:307 (West Supp. 1998).

200. Clarence Page, Happily Ever After? Fix Marriages Before They Start, Chi. Trib., Aug.

20, 1997, at 19.

20 1

.

See Kirn, supra note 1 90, at 49.



1 999] COVENANT MARRIAGE 53

1

programs holds promise for strengthening marriage relationships. Even this
course, however, should be approached with sobriety. Counseling and education

programs are not all created equal, and even the best program or therapist cannot

reach an unreceptive audience. As Barbara Dafoe Whitehead acknowledged in
a recent interview, "[i]t's impossible to get them to contemplate troubles,

adversity, conflict, especially if it's their first marriage and they are fairly young.

It's not a teachable moment."^^^ One can imagine the "covenant marriage
counseling" shops that might spring up to provide couples with quick, easy

counseling sessions, complete with the required signed and notarized attestation,

on their way to the clerk of the court's office for their marriage license. Under
those circumstances, the requirement would have little effect. In fact, there is
data that shows that premarital counseling does not affect marital outcomes.^^^

This study, however, did not distinguish among different types of counseling
programs, and the authors themselves cautioned, "the present data do not

demonstrate that premarital programs are generally unhelpful; indeed, it is quite

likely that some of the couples in these studies participated in highly effective
premarital programs.''^^"*

Research suggests that professionals should focus on several key factors

which have been shown to affect marital quality and stability.^^^ Several
comprehensive premarital assessment questionnaires are now available and in use
by counselors and educators to assist in evaluating couples' fitness for marriage

and in preparing couples for the challenges ahead.^^^

For supporters of premarital counseling, the question of whether counseling

202. Ellen Goodman, Editorial, On the Highway ofLove, Louisiana Will Road-Test Two

Marriage Choices: Regular or High-Test?, BOSTON GLOBE, Aug. 10, 1997, at D7.

203. See Kieran T. Sullivan & Thomas N. Bradbury, Are Premarital Prevention Programs
Reaching Couples at Riskfor Marital Dysfunction?, 65 J. CONSULTING & CLINICAL PSYCHOL. 24,
29(1997).

204. Id.

205. See Jeffry H. Larson & Thomas B. Holman, Premarital Predictors ofMarital Quality
and Stability, 43 Fam. RELATIONS 228, 234-37 (1994). The first area is to focus on assessing each

partner's individual traits and behaviors related to later marital quality and stability, including:

emotional health, self-esteem, neurotic behaviors, sociability, and dysfunctional relationship beliefs;

conventionality; and physical health. The second area is to assess homogamy, interpersonal

similarity, and interactional processes, including: similarity of race, socioeconomic status, religion,

intelligence, age, and absolute status; similarity of values, attitudes, beliefs, and sex role

orientations; and interactional processes. The third area is to assess background and contextual

factors, including family of origin, sociocultural factors, and current contextual factors, such as:

parental marital stability, parental mental illness, family dysfunction, and support from family for

marriage; age at marriage, educational level, socioeconomic status, income, occupation, and race;

seeking support from friends; and external pressures, including societal stressors such as economic

booms, recessions, war, and job or career pressures, and internal pressures such as parental

intimidation or overinvolvement. Id. at 235-36.

206. See Jeffry H. Larson et al., A Review of Comprehensive Questionnaires Used in

Premarital Education and Counseling, 44 Fam. RELATIONS 245 (1995).



532 INDIANA LAW REVIEW [Vol. 32:509

should be mandated by the state is still open to debate. For instance, what is the
consequence if a couple cannot afford the required counseling? Fortunately, a
number of programs have been developed voluntarily and are being offered to
couples around the country .-^^^ These programs involve clergy, schools, courts,

and other members of the community in seeking to help couples strengthen
marriages.^^^ A study of one program, PREP: The Prevention and Relationship
Enhancement Program, disclosed a lower rate of separation and divorce for
couples who had used the program .^°^

Community marriage policies are an exciting example of this trend.
Championed by Michael McManus, nationally syndicated columnist and
president and co-chairman of the Marriage Savers Institute, community marriage
policies involve agreements among churches of all denominations to work
together to strengthen marriage. McManus believes that, "it is possible to push
down the divorce rate. A number of things do work at every stage of the marital
cycle."^'^ Under a community marriage policy, churches require couples to
undergo four months of marriage preparation, including the completion of a
premarital inventory, before being married in the church. According to

McManus, ten percent of couples decide to break their engagement upon seeing
the results of their premarital inventory.^^^ These couples' scores typically are

within the same range as those of couples whose marriages end in divorce.^'^ For
couples who go forward with their plans, the church's commitment does not end
with the wedding ceremony. In each church, couples with successful marriages

are trained to mentor others.^^^

The first community marriage policy was adopted in Modesto, California in
1986.^^'* Today, community marriage policies are in force in seventy-two
communities around the country .^^^ McManus claims that Modesto' s divorce
rate has declined by forty percent, resulting in 1000 fewer divorces each year.^'^

In Peoria, Illinois, divorces declined from 1210 divorces in 1991 to 985 in 1996,

and Albany, Georgia, and Montgomery, Alabama, each have experienced

declines of approximately eleven percent.^ ^^ While churches have been the

primary focus of community marriage polices (as McManus points out, seventy-

207. See Elizabeth Gleick, Should This Marriage Be Saved?, TIME, Feb. 27, 1 995, at 48; Hara

Estroff Marano, Rescuing Marriages Before They Begin, N.Y. TIMES, May 28, 1997, at B9.

208. See Marano, supra note 207, at B9.

209. See Scott M. Stanley et al.. Strengthening Marriages and Preventing Divorce: New

Directions in Prevention Research, 44 Fam. RELATIONS 392, 395 ( 1 995).

2 1 0. Telephone Interview with Michael J. McManus, President and Co-Chairman, Marriage

Savers Institute (Nov. 2, 1997).

211. Id

212. Id

213. Id

214. See id.

215. See id.

216. Id

217. See id.



1999] COVENANT MARRIAGE 533

four percent of couples are married in churches), judges and other local officials

are becoming involved in some communities?^^ The American Bar Association's
Family Law Section has developed a ten-week marriage education course for
junior and senior high school students. Called PARTNERS, the curriculum
teaches essential relationship skills and gives students a realistic view of the
challenges of marriage before they marry?^^

There is also an incentive for businesses to get involved. Marital distress

results in decreased productivity and increased absenteeism among employees.^^^
Employer-sponsored marriage education, counseling, or intervention programs

are a cost-effective means of enhancing employees' personal well-being while
increasing business profits.^^'

Counseling also is important at the other end of the marital spectrum, when
couples are contemplating or preparing for divorce. In this situation, counseling

is emphasized not so much as an attempt to repair the marriage, although that
certainly should be encouraged for couples who desire it, but as a critical means
of dealing with the negative effects of divorce on children.^^^

"Every aspect of the children's lives can be made easier by the parents'
attitudes at the time of the crisis as well as later," proclaim Wallerstein and

Blakeslee.^^^

At a minimum, the variety of supports and services for divorcing
families needs to be expanded in scope and over time. These families

need education at the time of the divorce about the special problems

created by their decision. They need help in making decisions about
living arrangements, visiting schedules, and sole or joint custody. And
they need help in implementing these decisions over many years—and
in modifying them as the children grow and the family changes.
Divorcing families need universally available mediation services. They
also need specialized counseling over the long haul in those cases where

the children are at clear risk, where the parents are still locked in bitter

disputes, and where there has been family violence.^^"^

In particular, parents should be counseled against interfering in their son's or

daughter's relationship with the other parent.^^^ The children themselves should

be offered professional support and guidance, either in the community or through

218. See id.

2 1 9. Family Law Section, American Bar Association, PARTNERS for Students: A
Curriculum Adjunct to Teach Family Law and Relationship Skills.

220. See Melinda S. Forthofer et al.. Associations Between Marital Distress and Work Loss

in a National Sample, 58 J. MARRIAGE & Fam. 597, 600, 602 (1996).
221. SeeiddA.6QA.

222. See supra Part IV.A.

223. Wallerstein & Blakeslee, supra note 95, at 285.
224. Id at 306.

225. See Bolgar et al., supra note 105, at 142.



534 INDIANA LAW REVIEW [Vol. 32:509

school-based support services
226

E. Goal: Improve the Economicsfor Women and Children

Covenant marriage legislation does nothing to address the financial status of

women and children. The legislation makes no revisions in the determination of
property division, child support, or spousal support. The goal of covenant
marriage is to improve the standard of living of women and children by keeping
them in the same household with their husbands and fathers. But when divorce
occurs, women and children will still suffer financially.^^^ Covenant marriage
legislation may increase the financial burden by requiring costly litigation to
establish fault or by subjecting families to a prolonged waiting period before a

divorce can be granted.
^^^

Lenore Weitzman may have overstated the gender gap between husbands and
wives and their post-divorce finances, but a gender gap still exists.^^^ No-fault

divorce did not create this circumstance,^^^ so the solution does not lie in a return

to fault grounds for divorce. Weitzman suggests several responses, tailored
toward the particular circumstances of the divorcing wives and their children.

First, child support awards should be designed to equalize the standards of

living between the custodial and non-custodial households, should include

automatic cost-of-living adjustments, and must be enforced. The custodial parent
of minor children should be allowed to maintain the family home, and college-

age dependent children should be provided with support to complete their

education. Glendon argues for a "children-first principle," in which the first

priority for distribution of family property upon divorce would be to secure the

welfare of the couple's children.^^* Weitzman also suggests clear standards for

custody awards so that custody is not used as a bargaining chip in financial

negotiations.^^^ Second, according to Weitzman, long-married older housewives

should be entitled to permanent support at a level sufficient to maintain the same

standard of living as their former husbands.^" Third, custodial parents should be

given the family home, support aimed at maintaining the same standard of living

as their former spouse, and generous resources in the years immediately

following divorce to allow them to invest in education, training, and career

counseling to maximize their long-term employment prospects .^^"^ Fourth,

middle-aged women who have foregone career opportunities in order to raise
children should be awarded an equal share of the marital partnership, including

226. See Kasen et al, supra note 102, at 143.

227. See supra Part IV.C.

228. See supra notes 181, 184 and accompanying text; discussion at Part VI. C.

229. See supra Part IV.C.

230. See supra notes 132-35 and accompanying text.

23 1

.

Glendon, supra note 1 88, at 1 559.

232. Weitzman, supra note 127, at 379-80.

233. /^. at 380-81.

234. SeeiddXl^U.



1999] COVENANT MARRIAGE 535

the husband's career assets and enhanced earning capacity; training, counseling,

and education if necessary to begin, resume, or upgrade employment; and

compensation for lost career opportunities.^^^ This latter element is emphasized

in another recent treatise on the economics of divorce, in which it is suggested
that courts should recognize the decrease in value of the human capital of the
spouse who invests directly in the other's career or in the assets of the
marriage.^^^

Conclusion

Those who talk most about the blessings of marriage and the constancy
of its vows are the very people who declare that if the chain were broken
and the prisoners left free to choose, the whole social fabric would fly
asunder. You cannot have the argument both ways. If the prisoner is
happy, why lock him in? If he is not, why pretend that he is?^^^

Covenant marriage legislation will fail at its intended purpose, because legal

restrictions on divorce do not create healthier families. In an historical refrain,

divorce reformers again are decrying the high divorce rate and seeking to rewrite

the states' divorce laws in order to save the family.^^^ Covenant marriage, whose
primary feature is a limitation on the grounds for divorce, is one current

initiative.^^^ Covenant marriage is not a new approach to the problem; it is
merely the ghost of a system that was declared dead three decades ago.^"^^
Covenant marriage's reinstatement of fault grounds for divorce will return the

divorce process to a system of perjury, collusion, and abandonment^'** without

addressing the underlying causes or effects of marital breakdown .^"^^ History has

taught that divorce laws in America have little impact on the rate of divorce^"*^

and that more restrictive divorce laws do not keep couples together when they
want to be apart.^"*"* Social changes impact divorce laws; divorce laws do not

effect social change.^"*^

There are alternatives, however, if policy-makers are serious about

addressing the negative consequences of marital breakdown. Premarital

counseling and marital education could encourage couples to consider the

challenges of marriage, potentially preventing troubled marriages before they

235. See id. at 3S\-S2.

236. See ALLEN M. Parkman, No-Fault DIVORCE: WHAT Went Wrong? 4 1-42 ( 1 992).
237. George Bernard Shaw, Man and Superman, act III.
238. See supra Part II., notes 17-20 and accompanying text.

239. See supra Part III.

240. See supra notes 32-38, 175-79 and accompanying text.

241

.

See supra notes 24-3 1 and accompanying text.

242. See supra Part VLB.

243. See supra Parts IV.D.,yi.A.

244. See supra notes 6-7, 24-3 1 and accompanying text.

245. See supra Parts V.D., VI.A., notes 8-11, 17-19 and accompanying text.



536 INDIANA LAW REVIEW [Vol. 32:509

begin.^'*^ However, legislatively mandated premarital counseling may not be the
answer. Premarital counseling is likely to be most effective for couples who are
motivated by a genuine, sincere desire to explore their readiness for marriage.

Counseling perceived as simply one more legal requirement to be completed
before the wedding ceremony may have little impact. Religious organizations,
schools, family law practitioners, political leaders, government organizations,

friends and family can use their influence to encourage couples to engage in

voluntary premarital counseling or education before the flowers are ordered and

the invitations are mailed.^"*^ These same people and institutions should

encourage married couples contemplating divorce to seek counseling for the sake

of their children.
^'^^

State legislators should review and amend laws governing financial support
upon divorce."^"^^ Where the effect of current law is to disadvantage children
economically because of their parents' decision to divorce, statutes should be

revised and child support orders enforced.

Covenant marriage is good public relations but bad public policy. Making

divorce more difficult will not make marriage stronger or the divorce rate lower,

as history has already shown. Returning to fault-based divorce will provide a

quick reminder ofwhy that system was abandoned a generation ago. Those who
are serious about addressing the problems of marital disruption should focus their

attention on the institutions that influence couples' personal choices, both at the

time of marriage and at the time of divorce, and on the support we provide for
children when their parents cannot live together anymore.

246. See supra notes 200-1 9 and accompanying text.

247. See supra notes 207-21 and accompanying text.

248. See supra notes 222-27 and accompanying text.

249. See supra Parts IV.C. and VI.E.