Unlike the adult experience, the child's suffering does not reach its peak at the breakup and then level off. On the contrary. Divorce is a cumulative experience for the child. Its impact increases over time. At each developmental stage the impact is experienced anew and in different ways.... The impact of divorce gathers force as they reach young adolescence, when they are often insufficiently supervised and poorly protected, and when, additionally, they are required then (if not earlier) to adjust to new stepparents and stepsiblings. The impact gathers new strength again at late adolescence when they are financially barred from choosing a career or obtaining an education equivalent to that of their parents. And again, at young adulthood, when their fears that their own adult relationships will fail like those of their parents rise in crescendo. The effect of the parents' divorce is played and replayed throughout the first three decades of the children's lives. ⁽¹⁰⁾

In a culture of divorce, children are the most "unfree." Divorce abrogates children's rights to be reasonably free from adult cares and woes, to enjoy the association of both parents on a daily basis, to remain innocent of social services and therapy, and to spend family time in ways that are not dictated by the courts.... [D]ivorce involves a radical redistribution of hardship, from adults to children, and therefore cannot be viewed as a morally neutral act. ⁽¹⁶⁾

There seems to be a tipping point at which marriage becomes so fragile and divorce so common that an increasing number of women decide it may be safer to dispense with marriage altogether: Illegitimacy surges in the wake of a surge in divorce. ⁽¹⁹⁾

A. Strengthening Marriage

B. Revitalizing Mediating Structures: Inviting Religion to Assist In Preserving Marriages

C. Restoration of Protection and Power to the "Innocent" Spouse

The delay offers two possible advantages to divorcing spouses: First, it permits an economically weaker spouse more time to make financial adjustments by prolonging the support obligation of marriage: and second, it may facilitate reconciliation if the partners marital difficulties are not irremediable. ⁽⁷⁵⁾

III. First Distinguishing Feature: Mandatory Pre-Marital Counseling

The sociotheological idea of covenant is so rich with ethical content that it gives moral meaning to all it touches. ⁽¹⁰⁴⁾ ... [A] covenant shifts the terms of ... relationships. It is not cut casually, for it entails not only celebration and sacrifice but also the incorporation of new shared duties and rights that nourish life with other meanings, and thus a sense that these duties and rights are based on an enduring law and purpose as established by a higher authority. ⁽¹⁰⁵⁾

A. Who Is a Counselor?

B. Content of the Counseling

C. Necessary Documents for Covenant Marriage

D. Grounds for Annulment of Covenant Marriage

The inconsistency in the jurisprudence of relative nullity has been unimportant under the traditional regime; the ease and speed with which the victim of imposition could obtain a no-fault divorce made claims of relative nullity a rare legal event. ⁽¹⁷⁹⁾

A. Declaration of Intent as Contract

B. Agreement to Take All "Reasonable" Steps

C. Content of the Pre-Divorce Counseling

D. Remedies for Breach of Agreement to Take Reasonable Steps

E. A Component That Survives A Migratory Divorce

A. Fault Grounds for Legal Separation or Divorce

1. Adultery and Conviction of a Felony

2. Abandonment for One Year

3. Physical or Sexual Abuse of a Spouse or Child of the Parties

4. Cruelty (Mental) and Habitual Intemperance as Grounds for Legal Separation Only

5. Grounds for Divorce After a Legal Separation

6. Defenses ⁽⁴¹⁵⁾: Recrimination and Comparative Rectitude

B. No-Fault Grounds for Legal Separation or Divorce: Two Years Living Separate and Apart

C. Effect of Covenant Marriage on Incidental Demands in Divorce or Separation Proceedings

The Western tradition has learned, through centuries of experience, to balance the norms of marital formation, maintenance, and dissolution.... The lesson in this is that rules governing marriage formation and dissolution must be comparable in their stringency.... Loose formation rules demand loose dissolution rules, as we see today. To fix `the modern problem of divorce' will require reforms of rules at both ends of the marital process. ⁽⁴⁵⁶⁾

[a]t the present juncture in history, what may really matter is that the Louisiana legislature has recognized the harm done by the tide of no-fault divorce in America, and by a large majority has voted to begin the process of reversing this tide.... Having been to the brink with marital instability, Americans are now starting to address the basic legal framework which has helped to undermine the institution of marriage. Britain and other European countries could follow this example, rather than wait until things get as bad as they are in America. ⁽⁴⁶²⁾

*  Jules F. and Frances L. Landry Professor of Law.

The author prepared the original House Bill No. 756 (the covenant marriage legislation) for introduction by its principal author, Representative Tony Perkins, and testified in favor of the legislation during hearings before the House Committee on Civil Law and Procedure and the Senate Committee on Judiciary A. The author wishes to express her deepest gratitude to Representative Perkins; to his original co-author Representative Jim Donelon; to Judge Darrell White, who introduced the three of us; to Mary Ann Glendon, Maggie Gallagher, Barbara Dafoe Whitehead, and Glenn Stanton, whose cogent books and articles convince the author and others of the intrinsic value of marriage and the compelling necessity to act immediately to rescue it; and to her "covenant" husband, Paul, who has been a source of strength and comfort throughout twenty-seven years of marriage.

1.   John Witte, Jr., FROM SACRAMENT TO CONTRACT: MARRIAGE, RELIGION AND LAW IN THE WESTERN TRADITION, 219 (1997). "In a faint echo of the divine, children are the most important Word most of us will utter." quoting from John E. Coons, "The Religious Rights of Children," in John Witte, Jr., and Johan van der Vyver, eds. Religious Human Rights in Global Perspective: Religious Perspectives 172 (1996).

The author's own most important words are Holden, Lindley, and Carlos.

2.   For an extensive examination of the reasons why a stable lifelong marriage of the parents of children insures the probability of their ultimate success and happiness, see Katherine Shaw Spaht, For the Sake of the Children: Recapturing the Meaning of Marriage, 73 Notre Dame L. Rev. 1547 (1998).

3.   For example, see La. R.S. 9:307 A. (6)(b). If there is a minor child or children of the marriage a divorce is permitted after legal separation only when the spouses have lived separate and apart for one year and six months. If there is no minor child or children of the marriage or if the legal separation was granted on the basis of abuse of a child of the marriage or one of the spouses, divorce after legal separation is permitted when the spouses have lived separate and apart for only one year.

In her article entitled "It's Deja Vu All Over Again": The Covenant Marriage Act in Popular Cultural Perception and Legal Reality, 72 Tul. L. Rev. 1701 (1998), my friend Jeanne Carriere, who urges repeal of the law, failed to specifically consider the welfare of the children. The student author of the note in 43 Loyola L. Rev. 421 (1997), recognized that the legislature was motivated by the interests of children: "The consequences of the dissolution of a marriage on the children are so strong in the eyes of Louisiana legislators that they developed a new law aimed at curbing the effects of divorce." Furthermore, the student author of The Limits of Limits on Divorce in 107 Yale L. J. 1413, 1438-1442 (1997) acknowledged that there is a powerful "child-centered case" against no-fault divorce but then subtly dismisses its supporters as optimists and "develops the darker sensibility of a skeptical liberalism." Id. at 1442.

4.   See Christopher Wolfe, A Marriage of Your Choice, FIRST THINGS at 37, February, 1995, who proposes a legislative option that is truly consistent with Christian marriage as reflected in Christ's words in Mark 10:2-12, marriage that is indissoluble for any reason. The same option was proposed in 1945 by French law professor, Leon Mazeaud of the University of Paris in Solution to the Problem of Divorce which appears in HENRI MAZEAUD ET AL., LECONS DE DROIT CIVIL: LA FAMILLE bk. 1, vol. 3, nos. 1413-15 at 649-52 (Laurent Levenuer ed., 7th ed. 1995). See Cynthia Samuel, Letter From Louisiana: An Obituary for Forced Heirship and A Birth Announcement for Covenant Marriage, 12 Tul. Eur. & Civ. L. For. (1998), in which she describes the proposal made by Mazeaud to the commission to reform the Code Civil.

See also Eric Rasmussen and Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 Ind. L. Rev. 453, 495-96 (1998) (recommend permitting more contractual options for marriage rather than only one as in covenant marriage, although without the freedom permitted in commercial contracts). To the same effect but advocating a broader private ordering of marriage and divorce, see Gary S. Becker, Why Every Married Couple Should Sign a Contract, BUS. WEEK, Dec. 29, 1997, at 30. On both sides of the political and religious spectrum there is some agreement with Stake and Rasmussen: some homosexual activists see the dejuridification of marriage as an opportunity for them to demand participation in the sacred institution of marriage and some committed Christians believe that they live in Babylon and prefer to construct their own law rather than be subject to the law of Babylon. In addition some libertarians argue that marriage should be completely privatized as a personal and religious ceremony, and the State should confer no special status on marriage.

5.   This is true of traditional wedding ceremonies, the vast majority of which take place in churches. But see David Blankenhorn, I Do?, FIRST THINGS, Nov. 1997 at 14-15, in which he abhors modern American marriage vows because they reflect a "loving relationship" of undetermined duration created of the couple, by the couple and for the couple. He makes the point in his article that the marriage vow is deeply connected to the marriage relationship.

6.   La. Civ. Code art. 1978. They are not simply incidental beneficiaries, since (1) the third party beneficiary of any contract need not be named (Andrepont v. Acadian Drilling Co., 255 La. 347, 231 So.2d 347 (1969)) as long as they can be identified when the benefit is sought to be enforced; (2) they are persons with whom the parties have both a legal (La. Civ. Code art. 227) and factual relationship such that there exists the possibility of future liability (La. Civ. Code arts. 227, 229) once they are born; and (3) they can accept the benefit stipulated in their favor (in this case implicitly) at any time before revocation including by filing suit (La. Civ. Code art. 1979). For a recent analogous example, see Sandi v. Palmer, 713 So.2d 822 (La. App. 5th Cir. 1998) (contract between father and former wife and her husband to set up and fund trust for daughters).

See Margaret F. Brinig, Economics, Law and Covenant Marriage, 16 Gender Issues 4, (1998): "Legislation involving families typically produces results that range far beyond the husband and wife involved. Children are the third parties most obviously affected by marriage and divorce legislation. Two features of the Louisiana covenant marriage proposal seem to benefit the offspring of a marriage. The first is that fewer couples will divorce, and, since divorce almost always harms children, children will benefit. The other interesting feature of the legislation is the inclusion of abuse directed against a child as a grounds both for absolute ... divorce and for a mensa divorce.... The only state currently allowing fault divorces where it is not the spouse, but the child who is physically or sexually injured, is West Virginia.... Covenant marriage should foster the kind of permanence that would allow more specific investments in the marriage. This would include not only degrees, but also children...." Emphasis added.

See Comment, Protecting the Interests of Children of Divorce: A Proposal to Create Exceptions to the Louisiana Prohibition Against Contracting for Future Successions, 72 Tul. L. Rev. 1853 (1998).

7.   Although Lenore Weitzman in her seminal work The Divorce Revolution: The Unintended Social and Economic Consequences on Women and Children in America (1987) was the first to document the economic devastation suffered by children (and women) after changes in divorce law in the 1970's, numerous studies since the publication of her research support her conclusions. There are disagreements about Weitzman's calculations of the disparity between post-divorce income and standard of living for men and for women and children, only a few dispute that women and children suffer more economic hardship than men after divorce. See Saul Hoffman & Greg Duncan, What Are the Economic Consequences of Divorce?, 25 DEMOGRAPHY 641 (1988); Atlee L. Stroup & Gene E. Pollock, Economic Consequences of Marital Dissolution, J. OF DIVORCE AND REMARRIAGE 22 (1994); Richard R. Peterson, A Re-Evaluation of the Economic Consequences of Divorce, 61 AM. SOC. REV. 528 (1996). See also Katharine T. Bartlett, Saving the Family from the Reformers, 31 U. of Cal., Davis L. Rev. 809, 835 (1998).

In Margaret F. Brinig's Economics, Law, and Covenant Marriage, 16 Gender Issues 4, (1998), the author explains the economic impact as follows: "[T]he same parties now maintain two households, eliminating economies of scale that were present during the marriage. Given the same incomes, the parties are effectively poorer because of increased costs."

8.   See Patrick F. Fagan et al., The Child Abuse Crisis: The Disintegration of Marriage, Family, and the American Community, BACKGROUNDER, June 3, 1997. The report compiled data drawn from the following studies: ANDREA J. SEDLAK & DIANE BROADHURST, U.S. DEPT'T OF HEALTH AND HUMAN SERVICES, THE THIRD NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (1996), and ROBERT R. WHELAN, FAMILY EDUCATION TRUST, BROKEN HOMES & BATTERED CHILDREN: A STUDY OF THE RELATIONSHIP BETWEEN CHILD ABUSE AND FAMILY TYPE (1994).

There is strong evidence from the British research that the structure of the family is related directly to the safety of mothers and children. The most dangerous place for a woman and her child is in an environment in which she is cohabiting with a boyfriend who is not the father of her children. The rate of child abuse may be as much as 33 times higher. Even cohabiting with the children's father may lead to a rate of abuse as much as 20 times higher. Marriage provides the safest environment for children. It therefore truly makes a difference in advancing the safety and well-being of America's children.

Fagan et al., supra, at 14.

9.   See John Guidubaldi, Differences in Children's Divorce Adjustment across grade level and gender: A Report from NASP-Kent State Nationwide Project, in CHILDREN OF DIVORCE: EMPIRICAL PERSPECTIVES ON DIVORCE (Sharlene A. Wolchik & Paul Karoly eds., 1988); David Demo & Alan Acock, The Impact of Divorce on Children: An Assessment of Recent Evidence, 50 J. MARRIAGE & FAM. 619, 622 (1988).

Glenn S. Stanton's WHY MARRIAGE MATTERS: REASONS TO BELIEVE IN MARRIAGE IN POST-MODERN SOCIETY (1997) is one of the most recent of all the books written by authors who wish to emphasize the positive effects of marriage. Stanton compiles all of the sociological data to date on the detrimental effects of divorce. For example, see Chapter 5, "Shattering the Myth: The Broken Promises of Divorce and Remarriage" at 123-58. See also Jenifer Kunz, The Effects of Divorce on Children, in 2 FAMILY RESEARCH: A SIXTY-YEAR REVIEW, 1930-1990, 325 (Stephen Bahr ed., 1992).

In Margaret F. Brinig's Economics, Law and Covenant Marriage, 16 Gender Issues 4, (1998): "The question for those evaluating restrictions on divorce is whether the gains to adults' autonomy from the easier exits of no-fault regimes outweigh the apparently large costs they inflict upon children."

10.   Judith S. Wallerstein & Julia Lewis, The Long-Term Impact of Divorce on Children: A First Report from a 25-Year Study, Presentation at the Second World Congress of Family Law and the Rights of Children and Youth in San Francisco, California (June 2-7, 1997) (copy on file with author).

11.   Her study has been criticized because it was a small number (116-130 children) and they all came from middle-class northern California families in 1970. Their parents were well-educated.

12.   See Glenn Stanton, Why Marriage Matters? Reasons to Believe in Marriage in a Post-Modern Society 123-58 (1997), for the results of those studies.

13.   The author's devotion to the cause of forced heirship was almost exclusively based upon the plight of children of a first marriage, and the recognition that some of the strongest pressure to change the system of the children's legitime came from subsequent spouses (second, third wives). See Katherine Shaw Spaht, Forced Heirship Changes: The Regrettable "Revolution" Completed, 57 La. L. Rev. 55 (1996); The Aftermath of the "Revolution": 1990 Changes to the New Forced Heirship Law, 51 La. L. Rev. 471 (1991); Katherine Shaw Spaht et al., The New Forced Heirship Law: A Regrettable "Revolution", 50 La. L. Rev. 411 (1990); Katherine Shaw Spaht (with Cynthia Samuel and W.M. Shaw), Developments in the Law--Successions and Donations, 45 La. L. Rev. 575 (1984). See also Comment, Protecting the Interests of Children of Divorce: A Proposal to Create Exceptions to the Louisiana Prohibition Against Contracting for Future Successions, 72 Tul. L. Rev. 1853 (1998).

Professor Cynthia A. Samuel of Tulane Law School in Letter from Louisiana: An Obituary for Forced Heirship and a Birth Announcement for Covenant Marriage, 12 TUL. EUR. & CIV. L. FORUM (forthcoming), treats the subjects of the demise of all-inclusive forced heirship and the enactment of covenant marriage legislation together in her article. In the mind of the author they are inherently connected--widespread divorce created pressure to repeal the law that reserved a portion of one's property for all children. "In 1995 the tide of divorce was primarily what swept Louisiana's law of forced heirship out to sea. But in 1997 when the tide came in again, it contained an unexpected hostility to divorce." Id. at .

Both easy divorce and the repeal of all-inclusive forced heirship represent the triumph of a radical individualism, inherently selfish and narcissistic. Civil institutions such as lifelong marriage enforced by strict laws of divorce and the reserve of property for children at death necessarily curbed a citizen's narcissism. What now passes for "liberty" is so often more properly understood as undisguised selfish "license."

See generally Mary Ann Glendon, RIGHTS TALK (1991).

14.   PAUL A. AMATO & ALAN BOOTH, A GENERATION AT RISK: GROWING UP IN AN ERA OF FAMILY UPHEAVAL (1997).

15.   Wade E. Horn, Strong Case for Staying Together Despite Discord, WASHINGTON TIMES, Jan. 6, 1998, at E2. The other two studies were Rex Forehand et al., Is Adolescent Adjustment Following Parental Divorce a Function of Predivorce Adjustment?, 25 J. ABNORMAL CHILD PSYCHOL. 157 (1997) and RONALD L. SIMONS, UNDERSTANDING DIFFERENCES BETWEEN DIVORCE AND INTACT FAMILIES: STRESS INTERACTION AND CHILD OUTCOME 203-05 (1996).

16.   Barbara Dafoe Whitehead, THE DIVORCE CULTURE 184, 190 (1997).

17.   See Katherine Shaw Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 12 BYU J. Pub. L. 277 (1998).

18.   See Id., in which the author argues that the definition of marriage which includes permanency has been so diluted and weakened by easy divorce that it is no surprise homosexuals can demand entry into what was once a sacred institution distinguished historically by among other attributes sexual complementarity and permanence. See David Orgon Coolidge, Same-Sex marriage? Baehr v. Miike and the Meaning of Marriage, 38 S. Tex. L. Rev. 1 (1997).

Contra: Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 U. Ill. L. Rev. 719. It should be pointed out that Professor Ellman is the Chief Reporter for the American Law Institute's Principles of Family Dissolution and has consistently resisted, and his writings reflect why, the injection of fault into divorce proceedings with one notable exception, physical violence.

10.   Maggie Gallagher, THE ABOLITION OF MARRIAGE: HOW WE DESTROY LASTING LOVE 123 (1996).

20.   See David Popenoe, Fostering the New Familism: A Goal for America, RESPONSIVE COMMUNITY (Fall, 1992); The Family Condition in America, VALUES & PUB. POLICY (1994); Decline & Renewal of Marriage in America, in PROMISES TO KEEP (Inst. for Social Research, Univ. of Michigan); and The Evolution of Marriage and the Problem of Stepfamilies: A Biosocial Perspective of Stepfamilies: Who Benefits? Who Does Not? (1994). These articles are only a selected few from a list that exceeds forty articles and books.

Barbara Dafoe Whitehead, THE DIVORCE REVOLUTION (1997); Dan Quayle Was Right, THE ATLANTIC MONTHLY, Apr. 1993, at 47.

21.   David Popenoe & Barbara Dafoe Whitehead, Report on Cohabitation, National Marriage Project at Rutgers, the State University of New Jersey (forthcoming fall, 1998).

This study essentially undercuts Katharine T. Bartlett's notion of a "family-enabling model of reform" that treats all family structures as potentially desirable, including the cohabitation model, and suggests legal rules to govern such structures (gay and lesbian marriage, etc.). See Katharine T. Bartlett, Saving the Family from the Reformers, 31 U. of Cal., Davis L. Rev. 809 (1998). The "reformers" to which Bartlett refers are trying to save the family from earlier reformers.

See also Allan Carlson, The Family, Public Policy & Democracy: Lessons from the Swedish Experiment, 12 THE FAMILY IN AMERICA (newsletter of The Howard Center for Family Religion & Society, August, 1998): "The central error in the Swedish model lies at the very beginning: in the assumption that the human family is malleable, a derivative social construct ever adjusting to meet new economic conditions, rather than a system rooted in a relatively fixed human nature." Id. at 7 .

22.   Family is defined as a father and mother united by marriage with biological or adoptive children. The family is broken by divorce because either the father or the mother is no longer present in the home. The tragic result is broken everything: "Broken homes. Broken promises. Broken hearts. Broken marriages. Broken ideals. Broken lives. Broken minds. Broken laws. Broken bodies. Broken societies. Broken people. Broken ... everything is broken." Stanton, supra note at 159.

For a different more inclusive view of family, see, e.g., Bartlett, supra note .

23.   See Stanton, supra note at 105. He summarizes the findings of the study by SARA MCLANAHAN & GARY SANDEFUR, GROWING UP WITH A SINGLE-PARENT: WHAT HURTS, WHAT HELPS (1994) and then quotes them as follows: "Regardless of which survey we look at, children from one-parent families are about twice as likely to drop out of school as children from two-parent families."  MCLANAHAN & SANDEFUR, id. at 41.

"It is no exaggeration to say that a stable, two-parent family is an American child's best protection against poverty." KAMARCK & GALSTON, PROGRESSIVE POLICY INSTITUTE, PUTTING CHILDREN FIRST: A PROGRESSIVE FAMILY POLICY FOR THE 1990s 12 (1990).

See also David Blankenhorn's Fatherless America: (1995).

24.   In the "Call to a Civil Society" the result of two-years of discussion and drafting and released by the Institute for American Values, on May 28, 1998, the authors, who include Professor Mary Ann Glendon, David Blankenhorn, Professor Don Browning, Professor James Q. Wilson, Senator Dan Coats, and Senator Joe Lieberman, recommend that to renew our democracy morally America should first, increase the likelihood that more children will grow up with their two married parents. One of the specific recommendations that pertains to the family is number 8: "We hope that state legislatures will consider reforming no-fault divorce laws. The twin purposes of reform are lowering the divorce rate and improving the quality of marriage. Ideas for reform include: extending the waiting period for divorce; establishing incentives or requirements for pre-marital education and for marital counseling in cases of at-risk marriages; and, in cases in which only one spouse wants the divorce, requiring the establishment of fault. Another potentially promising reform is `covenant marriage' legislation, recently adopted in Louisiana and now being considered in other states, which permits individual couples to opt out of the no-fault system and enter into a legally more binding marriage." Id. at 19-20.

25.   See Katherine Shaw Spaht, For the Sake of the Children: Recapturing the Meaning of Marriage, 73 Notre Dame L. Rev. 1547, 1559-1562 (1998), in which the author argues that the interrelationship of law and culture, particularly in this country, is symbiotic.

Professor Mary Ann Glendon has always recognized the influence of law on the culture. See MARY ANN GLENDON, THE NEW FAMILY AND THE NEW PROPERTY (1981); MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987); MARY ANN GLENDON, A NATION UNDER LAWYERS (1994). "Concerning divorce law in the United States, as Professor Glendon has observed, it has come `to embody the idea that termination of a marriage [is] a matter of individual right.' " Spaht, supra note at 1559-60, quoting from GLENDON, ABORTION AND DIVORCE at 113.

Even the student author of Note, The Constitutionality of Covenant Marriage Laws, 66 Fordham L. Rev. 2471, 2507 (1998) acknowledges that liberals agree that "law influences how people behave, and individuals perceive other people and institutions...." See also id. at note 320 and authorities cited therein.

26.   See Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 The American Econ. Rev. 608 (1998). The author observes: "States that adopted divorce laws which were more strongly unilateral had greater increases in the divorce rate. Nevertheless, the evidence shows that adopting any type of unilateral divorce raised the divorce rate." To the same effect, see Margaret F. Brinig & F.H. Buckley, No-Fault Laws and At Fault People, 18 Int'l Rev. L. & Econ. (forthcoming 1998) (no-fault divorce significantly increased divorce rates because the costs of filing for divorce decreased; study isolated effect of legal variable from other demographic and social factors).

Mary Ann Glendon, Divorce and Abortion in Western Law (1987); Carl E. Schneider, Marriage, Morals, and the Law: No-Fault Divorce and Moral Discourse, 1994 Utah L. Rev. 503. Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 Va. L. Rev. 29-37 (1990); Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. Legal Studies 869 (19 ); Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79; Judith Younger, Marital Regimes: A Story of compromise and Demoralization Together with Criticism and Suggestions for Reform, 67 Cornell L. Rev. 45 (1981); William A. Galston, Divorce American Style, Pub. Interest, Summer 1996 at 12.

But see, Note, The Limits of Limits on Divorce, 107 Yale L. J. 1435 (1998) in which the author argues that the effect of law is limited. In doing so he merely echoes what many academics have said before. See Ira Mark Ellman & Sharon Lohr, Marriage as a Contract, Opportunistic Violence & Other Bad Arguments for Fault Divorce, 1997 U. Ill. L. Rev. 719.

27.   H.R. No. 1 (Reg. Sess. 1998):

"WHEREAS, on September 5, 1969, California enacted the first no-fault divorce law and within five years thereof forty-four other states enacted similar legislation; and

WHEREAS, the state of Louisiana also enacted similar no-fault legislation pursuant to which a majority of divorces in this state are granted; and

WHEREAS, Louisiana's "no-fault" grounds are provided in Civil Code Articles 102 and 103 which simply require that the spouses have lived separate and apart for one hundred eighty days prior to the filing of the rule to show cause, or that the spouses have lived separate and apart continuously for a period of six months or more on the date the petition is filed; and

WHEREAS, according to a news release of the American Bar Association, nearly thirty years after no-fault divorce was first introduced in the United States, many state legislators are trying to reinstate fault as a prerequisite for divorce in their states.

THEREFORE, BE IT RESOLVED that the House of Representatives of the Legislature of Louisiana does hereby request that the Louisiana State Law Institute study and make recommendations to the Civil Law and Procedure Committee as to the merits of reinstating fault as a prerequisite to a divorce...."

See also S.B. No. 160 (1997 Reg. Sess.) by Senator Max Jordan provided that couples with children under the age of 18 could not divorce without proving fault grounds. The amended bill passed out of Senate Committee Judiciary A without objection but was defeated on the Senate floor by a vote of 12-25.

28.   Fla. H.R. 1585 (1990). See Spaht, supra note at 1573, n. 110.

29.   Ariz. R.S. 25-901-906 (1998). The bill was signed by the Governor on May 21, 1998. See Len Munsil, Proposal Weeds Out Less Committed and Ira Mark Ellman, Senate Bill Revives Horror of Fault Divorce, Ariz. Rep. at B5, Mar. 6, 1998. See also Louisiana's Covenant Marriage Law, 1 Married 14 (1997) (magazine of National Asso. of Marriage Enhancement in Phoenix, Ariz.) (cover story).

30.   In fact, the Communitarian Network has produced a booklet entitled, Opportuning Virtue: Lessons to be Learned from Louisiana's Covenant Marriage Law: A Communitarian Report (Amitai Etzioni & Peter Rubin eds., 1997). In that publication is an article by Amitai Etzioni entitled How to Make Marriage Matter from Time Magazine, Sept. 6, 1993 at 73, in which he urges the possibility at law of "super-vows" which incorporates the same notion as covenant marriage legislation. See also WILLIAM A. GALSTON, PROGRESSIVE FAMILY POLICY FOR THE TWENTY-FIRST CENTURY, BUILDING THE BRIDGE: 10 BIG IDEAS TO TRANSFORM AMERICA, 149, 156 (Will Marshall ed. 1997).

Margaret F. Brinig in her article Economics, Law, and Covenant Marriage, 16 Gender Issues 4 (1998) concludes with the observation: "It [covenant marriage legislation] allows the noble sentiments and incentives that lie behind covenant marriage to precommit without completely extinguishing personal freedom. With the covenant alternative in a federal system, contractual alternatives in family law widen considerably, and to good ends."

31.   See Joe Loconte, I'll Stand Bayou, 89 POLICY REVIEW 30, 32-33 (1998), in which the author refers to covenant marriage as a sleeping giant: "Covenant marriage uses both law and civil society to confront couples with the nature of their marriage commitment. Such confrontation could help rewrite our nation's most troubling cultural tale." Id. at 34.

The observation in footnote 131 in Carriere's article, supra note at 1721 attributed to her colleague Harvey Couch that those who initially select the option of a covenant marriage will be those who are least likely to divorce is at least partially true. As one might expect, those initially opting into a covenant marriage in Louisiana are generally deeply committed Christians. See Jeff Hooten, Tying the Knot a Whole Lot Tighter, 12 CITIZEN MAG. 6 (1998). However, Christian denominations are not immune from divorce; in fact, the number of divorces in Christian denominations is roughly equal to the overall divorce rate in the United States. Id. at 9.

Christ's view of marriage and divorce is best reflected in the passage in Mark 10: 2-12, in which Jesus is addressing his disciples about his statements concerning divorce.

32.   The importance of public debate of the disintegration of marriage and the consequences of divorce for society is largely overlooked in the articles written criticizing the covenant marriage legislation. For example, in Carriere's article, supra note she dismisses the effectiveness of the legislation because the numbers of couples selecting the option thus far are small and probably self-selecting. See "No Honeymoon for Covenant Marriage", Wall St. J. Aug. 17, 1998; "Covenant Marriage: Some do, more don't", Times Picayune, Aug. 17, 1998. One need only consider how effective the recent public discussion (and in some cases misinformation) about the evils of tobacco has been. Another example was the public discussion ensuing over civil rights during that movement.

Ultimately, whether the option of covenant marriage can change the cultural attitude of the citizens of Louisiana and Arizona toward marriage and divorce will be determined. The National Science Foundation and The Center for the Family at Brigham Young University are financing the proposed five-year empirical study of Professors Steve Nock at the University of Virginia, Laura Sanchez at Tulane University, and Jim Wright at Tulane University of the proposition, "Can Louisiana's (Arizona's) Covenant Marriage Law Solve America's Divorce Problem?" Emphasis added.

Others interested in "The Marriage Movement" hope to ignite the public debate using a community marriage policy (see discussion in note infra): " `In public discourse, marriage is the "M" word,' says Theodora Ooms of the Family Impact Seminar, in Washington, D.C. `Nobody talks about it.' So we are using the new marriage policy as a way to begin a public dialogue.' " Roger Sider, Grand Rapids Erects A Civic Tent for Marriage, 6 POLICY REVIEW 6-7 (July-Aug. 1998).

33.   See Note, Marriage and Divorce: Degrees of "I Do," An Analysis of the Ever-Changing Paradigm of Divorce, 9 U. Fla. J.L. & Pub. Policy 265 (1998).

34.   For example, Jeanne Carriere, "It's Deja Vu All Over Again": The Covenant Marriage Act in Popular Cultural Perception and Legal Reality, 72 Tul. L. Rev. 1701 (1998); Note, 107 Yale L. J. 1435 (1998) (the effect of law on culture and the principal arguments of the student author introduced with this sentence, "The child-centered case against no-fault divorce, like the view it opposes, rests on a distinctive vision of human nature and legal authority....", is addressed by the author elsewhere in 73 Notre Dame L. Rev. 1547 (1998)); Comment, 43 Loyola L. Rev. 421 (1998). See also Katharine T. Bartlett, 31 U. of Cal. Davis L. Rev. 809 (1998).

One criticism will not be addressed and that is that no one knew about the legislation (Stealth Anti-Divorce Weapon, ABA J. Sept., 1997 at 28) because it is addressed elsewhere (Why Covenant Marriage? A Change in Culture For the Sake of the Children, 46 La. Bar J. 116, Aug., 1998) and because in both Carriere's article and the student comment in the Loyola L. Rev. the authors cite numerous newspaper articles written during the period of time when the legislature was considering the covenant marriage legislation and published in the two largest newspapers in the state, The Times Picayune and The Advocate. Every single one of the articles, consisting of editorials and op-ed pieces, opposed the enactment of the legislation.

Furthermore, to the criticism that the legislation was enacted in haste, the author's response is that that observation is simply not true and I was there. Secondly, to the criticism that other approaches should have been adopted, such as a mandatory scheme (see Note, Limits to the Limits on Divorce, 107 Yale L. J. 1435, 1441 (1998), my response is "been there, tried that." See note supra, describing a Senate Bill introduced during the 1997 session that would have imposed a scheme disallowing no-fault divorce if the couple had minor children. Third, to the criticism that the Law Institute should have been involved (see Comment, 43 Loyola L. Rev. 421 (1997), my response is "been there, tried that, too." See Katherine Shaw Spaht and Kenneth Rigby, The New Divorce Legislation: Background and Commentary, 54 La. L. Rev. 20 (1993).

35.   The only testimony offered in opposition to the covenant marriage legislation came from the American Civil Liberties Union. Liberties is highlighted because this august organization that protects our most precious liberties, such as the right to abort one's fetus, would deny two people the liberty to contract a more binding marriage.

In Note, The Constitutionality of Covenant Marriage Laws, 66 Fordham L. Rev. 2471, 2508 (1998), the author states: "The American Civil Liberties Union ("ACLU") takes another liberal view, arguing that covenant marriage laws are an impermissible joinder of church and state insofar as the legislation incorporates Christian values into law. The ACLU asserts that the term 'covenant' has biblical connotations and promotes marriages found in the Bible, complete with a dominant husband and submissive wife. Indeed, the original legislation was proposed by a Promise Keeper, and graduate of Liberty University." Of course, the author of this article drafted the legislation and testified in favor of it in both legislative committees.

A staff attorney for the ACLU described the covenant marriage law as a " `Trojan horse' that would, in some cases, harm children by holding them hostage to bad marriages." Note, Marriage and Divorce: Degrees of "I Do," An Analysis of the Ever-Changing Paradigm of Divorce, 9 U. Fla. J.L. & Pub. Pol'y 265, 282 n. 125 (1998).

36.   After passage of the legislation, members of the family law section of the Louisiana State Bar Association attacked the bill. See The Stealth Anti-Divorce Weapon, ABA J. Sept., 1997 at 28, quoting Randy Fuerst, an attorney in Lake Charles. See discussion in text at notes infra.

37.   Hard-core feminists are reported to be in opposition to covenant marriage legislation because they "find that the legislation's efforts to protect women from divorce demeaning, or worse, dangerous." Note, Fordham L. Rev. supra note at 2508-2511. "Covenant marriage laws fail to address `the potential for oppression between the individual and other forms of organized social authority,' such as the family." Id. at 2510. This one sentence best sums up the feminist view of marriage and family--oppressive. Another example is the Note, Marriage and Divorce: Degrees of "I Do," An Analysis of the Ever-Changing Paradigm of Divorce, 9 U. Fla. J.L. & Pub. Pol'y 265, 280 (1998): "Despite the fact that divorce generally resulted in a financial disadvantage for women, the change from fault to no-fault FORCED women to become better educated, more marketable, and consequently, more financially independent. To revert to a traditional, fault-based divorce system would ENCOURAGE women to resume traditional gender roles, which emphasis the financial dependence of women on their spouses." Emphasis added. Unlike these women, the author desires to offer women a choice.

The feminists' ultimate agenda is best described in Carolyn Graglia's, Feminism Isn't Antisex. It's Only Antifamily, Wall St. J., Aug. 6, 1998: "The founding principle of NOW was that women should abandon homemaking and child-rearing and enter the workplace so as to become economically and politically independent from men. Child care in the words of one critic of the domestic role is `boring, tedious, and lonely'; being financially dependent on a husband is `irksome and humiliating.' ... Since their own interest in marriage was minimal, feminists encouraged women to abandon the ideal of chastity and even of marital fidelity...." Mrs. Graglia is also the author of an excellent new book on the subject of the feminist agenda entitled DOMESTIC TRANQUILITY: A BRIEF AGAINST FEMINISM (1998).

38.   Other liberal views in opposition to covenant marriage legislation are described as those views which highly value individual autonomy and free choice. Note, The Constitutionality of Covenant Marriage Laws, 66 Fordham L. Rev. 2471, 2507-09 (1998).

39.   Sanders v. Gore, 676 So.2d 866, 877 (La. App. 3d Cir. 1996) (Judge Yelverton, concurring and dissenting).

"Planiol believed that the institution of divorce was inimical to the institution of marriage. In his treatise published nearly 60 years ago in 1939, he said `[M]odern legislations, reacting against the Catholic principle of the absolute indissolubility of marriage, returned to divorce...'... He deplored the increase in divorce, but noted the still great difference between a divorce by modern legislations and the Roman Law: modern legislations recognizing divorce only for specified causes, and Roman Law permitting divorce contingent solely upon the will of the spouses...." Id. at 876.

40.   Id. at 878.

41.   11 M. Planiol, Treatise on the Civil Law, §1143 at 635 (La. St. L. Inst. Trans. 1959), quoted in Sanders v. Gore, 676 So.2d 866, 876 (La. App. 3d Cir. 1996) (Judge Yelverton, concurring and dissenting).

42.   La. R.S. 9:273 A. (2) (a).

43.   The agreement of husband and wife to "take all reasonable steps to preserve the marriage, including marital counseling" is a legally binding contract permitted and sanctioned by the state as a limited exception to the fundamental principle that the personal obligations of the marriage contract may not be altered by the parties. La. Civ. Code art. 86, comment (b); La. Civ. Code art. 1968. Generally, the personal obligations of husband and wife, including when the marriage terminates, cannot be made the object of a contract because they are matters of public order. See Holliday v. Holliday, 358 So.2d 618 (La. 1978); Favrot v. Barnes, 332 So.2d 873 (La. App. 4th Cir. 1976), reversed on other grounds 339 So.2d 843 (La. 1976).

44.   La. R.S. 9:273 A.(1). See also La. R.S. 9:273 A. (2)(a). See discussion in text at notes infra.

45.   La. R.S. 9:307A. and B., such as adultery, conviction of a felony and sentenced to imprisonment at hard labor or death, abandonment for one year, physical abuse of a spouse or a child of the parties, and a legal separation for cruel treatment (mental cruelty) or habitual intemperance that renders the life together insupportable plus an additional one year or one year and one hundred eighty days of living separate and apart. See discussion in text at notes infra.

46.   La. R.S. 9:307 A. (5). This ground for divorce in a covenant marriage is considered to be an example of unilateral no-fault divorce. The significant difference between unilateral no-fault divorce in a "standard" Louisiana marriage and that in a "covenant" marriage is the lengthier waiting period of one year and one-half in a "covenant" marriage. Thus, the two-year waiting period significantly slows down the process of divorcing when compared to the 180-day waiting period for divorce in a "standard" marriage. La. Civ. Code arts. 102, 103.

47.   RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984).

48.   Generally, a minister is understood to be the clergyman in a church of Protestant denomination--Baptist, Methodist, Pentecostal.

The Louisiana Baptist Convention (Southern Baptist) adopted a resolution on November 17, 1997, endorsing covenant marriage and encouraging their ministers to use it as any other tool in strengthening marriage. The National Southern Baptist Convention in Nevada adopted a similar resolution in June, 1998, encouraging their members from states other than Louisiana and Arizona to encourage the introduction and passage of covenant marriage legislation in their states. By contrast, Dan E. Solomon, Bishop of the United Methodist Church in Louisiana released a statement on June 27, 1997, essentially describing the legislation as intrusive and redundant (on file with the author). Other evangelical Protestant denominations such as the Pentecostals and Assemblies of God have wholeheartedly endorsed covenant marriage.

49.   Priests clearly includes a Catholic and Episcopalian clergyman.

The Catholic Bishops of Louisiana issued a Pastoral Statement on October 29, 1997, recognizing the commendable concern of the legislature for the permanence and stability of marriage by enacting the Covenant Marriage Act. Nonetheless, the statement continued: "Because there are elements in this particular Covenant Marriage Act which require those preparing couples for marriage to offer instruction on divorce contrary to the Church's teaching, Catholic ministers preparing couples for marriage will concentrate their focus on the Church's responsibility and teaching. The task to offer guidance with regard to the specifics of the Covenant Marriage Act will then be left to those who render this service in the name of the State. It would be inappropriate for those ministering to couples preparing for marriage in the Catholic Church to confuse or obscure the integrity of the Church's teaching and discipline by also providing this service, contradictory to Church teaching and mandated by this state law." (on file with author).

By contrast, the Episcopal Bishop-Elect Charles Jenkins of Baton Rouge was quoted in the newspaper on October 30, 1997, as saying the following: "By bringing couples in covenant marriages back to a fault-based divorce system, with the cynicism and occasional collusion for the sake of a divorce, `It goes back to the bad old days regarding divorce and dissolution of a household,' Jenkins said. `We've been there; it doesn't work. Those old ideas compromised the moral character of couples, they compromised the integrity of judges, courts and attorneys." Bruce Nolan, Bishops Back Off Covenant Marriage, TIMES-PICAYUNE, Thursday, Oct. 30, 1997, at A1.

50.   No rabbi or other official of the Jewish faith has issued a formal statement; however, the Times-Picayune reports that Jewish leaders had already signaled little support for the new civil contract. See Bruce Nolan, Bishops Back Off Covenant Marriage in TIMES-PICAYUNE, Thursday, Oct. 30, 1997, at A1.

51.   La. R.S. 9:202 (1). See also La. Civ. Code art. 91 and comments thereto.

52.   Id. at (2). A state judge or justice of the peace is permitted to perform the marriage ceremony.

53.   Discussion of who is a marriage counselor under the statute appears in text at notes infra.

54.   The "community" as used here refers not only to the congregation of the church or temple but also the larger society in which the couple lives, including their neighborhood, social circle, or city.

55.   The basic contours consist of an emphasis on the seriousness of marriage, the intention of the couple that it be lifelong, and an explanation of the differing grounds for divorce explicated in the Attorney General's pamphlet entitled "The Covenant Marriage Act." See discussion in text at notes infra.

56.   Dr. Roger Sider in his article Grand Rapids (Michigan) Erects A Civic Tent for Marriage, 6 POLICY REVIEW 6-7 (July-Aug. 1998) describes their community marriage policy: "These figures [divorce rate and percentage of children who grow up without marriage parents under the same roof] got the attention of a group of local citizens: a mayor, a pastor, a social worker, and myself, a psychiatrist. Each of us had

become alarmed at the mounting toll exacted by the erosion of marriage in western Michigan, especially on children. In fall 1996, we set out to establish a community marriage policy, modeled on programs enacted in 86 cities across the nation, to give children a better chance of growing up in stable, two-parent homes.

Most other community marriage agreements rely heavily on churches to raise the bar for wedlock. Their strategies often include premarital counseling for engaged couples. That's a vital step, but we're going much further: In Grand Rapids, we are erecting a large civic tent under which a variety of community leaders--not only clergy but also political, medical, business, and judicial figures--come together to strengthen marriage....

The policy sets three goals to be achieved within 10 years: reduce the divorce rate by 25 percent, reduced by 25 percent the number of children growing up without the benefit of married parents in a stable home, and establish thorough preparation for marriage as a community norm....

Michael McManus, the author of MARRIAGE SAVERS (1995) and the architect of the community marriage policy concept points out that churches and synagogues are foundational to the policy's success. Because at least 75 percent of our community's weddings take place in churches, our clergy and our congregations have both a special responsibility and a special opportunity to revitalize marriage."

57.    Demographics: More Get Marriage Counseling Before Marriage, Wall St. J. B1 (February 6, 1996).

58.   See extensive discussion in note 54 supra.

59.   See note supra. Marriage Savers is headed by President, Mike McManus and Director, Kent Dyer, 8500 Michael's Court, Bethesda, MD 20817.

60.   See Jeanne Carriere, supra at 1705-10.

61.   "Divorce was also known to have had a greater negative economic effect on women than on men, one reason being that no-fault divorce took away the bargaining power that the innocent spouse, usually the wife, had under the fault system to agree to divorce only in exchange for adequate alimony, child support, and property.... By 1997 those who were frustrated in their attempt to better the economic situation of divorced women and those who were newly alarmed over the effect of divorce on children joined forces with those who objected to easy divorce on religious or moral grounds. They united in an effort to try a different approach." Cynthia Samuel, supra note at .

Nonetheless, some commentators portray this bargaining power as the equivalent of blackmail: "A divorce law restricted to fault does harm by preserving legal unions that are emotionally nonviable, creating incentives for evasion and blackmail." Herma Hill Kay, Beyond No-Fault: New Directions in Divorce Reform, DIVORCE REFORM AT THE CROSSROADS 36 (1990). But even Dean Kay adds, "A no-fault, no-responsibility divorce law does harm by favoring the economically independent party over the dependent party, creating incentives to distort the law of property in search of just solutions. A framework for a nonpunitive, non-sexist, and nonpaternalistic system of marriage dissolution built on sharing principles can minimize, if not entirely eliminate, the financial harm done by divorce." Id. Emphasis added. See note supra, for a description of the feminists opposition to covenant marriage.

See also Katharine T. Bartlett, Saving the Family from the Reformers, 31 U. of Cal., Davis L. Rev. 809, 834-43 (1998), in which the author who admits internal conflict as both a traditionalist and a feminist concludes that women and children may have the most to lose from divorce reform. Thereafter, she attempts to make the case principally for women, not children, which suggests her feminist side prevailed.

62.   Even Herma Hill Kay acknowledges as much in her article, Beyond No-Fault supra note at 36. "The fault doctrine may have served to lend emotional vindication to the rejected spouse, as well as measure of financial protection and status as the preferred custodian of children. If so, greater justification may be required in those cases for eliminating that doctrine from the related core areas of support, property distribution, and child custody.... But if fault is withdrawn, the party formerly able to invoke that doctrine may be left in a vulnerable position both when negotiating a dissolution agreement and when litigating the matter in court." Id. at 8.

For an example of the result of no-fault on the spouse who desires to preserve the marriage, See Katherine Shaw Spaht, Why Covenant Marriage? A Change in the Culture For the Sake of the Children, 46 LA. BAR J. 116 (Aug. 1998).

See Ellman & Lohr, supra note for a different view.

63.   See Kay, note supra.

64.   Kay, supra note at 8.

65.   The grounds for immediate divorce that the "innocent" spouse may have against the other spouse include adultery, abandonment for one year, commission of a felony with a sentence to imprisonment at hard labor or death, or physical or sexual abuse of a spouse or a child of the parties. In addition, she may seek a legal separation for cruel treatment or habitual intemperance and one year or one year and six months later obtain a divorce. See discussion in text at note infra.

66.   The phenomena is described by Robert Mnookin & Kornhauserin Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L. J. 950 (1979). See also Cynthia Samuel, supra note at ; Herma Hill Kay, supra note at 8.

67.   Such as a greater proportion of the community property (but without violating the formula for lesion, see La. Civ. Code art. 814) or a larger sum in final spousal support than she would be entitled to under La. Civ. Code arts. 111-116.

68.   This is particularly true when the "innocent" spouse is not employed or earns less than the other spouse and the children are approaching majority, the time when children are the most expensive. In Louisiana the obligation to pay support for children 18 years or older is governed by the provisions of La. Civ. Code art. 229. Unlike child support for minor children, support for major children does not include a sum for education (i.e. college education). Furthermore, support is limited under Article 229 to food, clothing and shelter but only if the claimant is unable to support himself. Thus, the "innocent" spouse could exercise her bargaining power to entice the other spouse to agree to support the children during college (i.e. creation of a trust) in exchange for her initiation of divorce proceedings for legitimate grounds before the two year period elapses.

Furthermore, Cynthia Samuel in her article, supra note at suggests that La. Civ. Code art. 1976 be amended to remove the prohibition against one's future succession as the object of a contract. If the prohibition is removed, the "innocent" spouse may also exercise her bargaining power to exact a contract to provide for the children at the other spouse's death. See also Comment, Protecting the Interests of Children of Divorce: A Proposal to Create Exceptions to the Louisiana Prohibition Against Contracting for Future Successions, 72 Tul. L. Rev. 1853 (1998).

69.   La. Civ. Code art. 111 (repealed Jan. 1, 1998).

70.   La. Civ. Code art. 113. See discussion in text at notes infra. This interim allowance may be claimed from the moment that the spouses begin living separate and apart before any divorce or separation action is instituted. See La. R.S. 9:291.

71.   La. Civ. Code arts. 111, 112. Compare the criteria of an interim allowance and that of final periodic support.

72.   See discussion in text at note infra.

73.   A motivation for no-fault divorce, Herma Hill Kay explained, was to remove punishment from the marital dissolution equation: "While the primary objective of the modern American no-fault divorce reform movement was to change the grounds for divorce, related reforms were proposed as well in the laws governing other core issues of family dissolution. These proposals were initially limited to an effort to remove the punitive function formerly performed by the fault doctrine from such questions as alimony, property distribution, and child custody." Kay, supra note at 8. Nonetheless, Dean Kay in the next paragraph admits that fault "may have served to lend emotional vindication to the rejected spouse...." Id. At the end of her article, however, she continues to support a non-punitive system of marriage dissolution. Id. at 36.

An important function of law, i.e. tort and contract, is to punish. It seems particularly appropriate to punish a spouse for breaching his promise which was made solemnly and which is of such importance to third parties, principally his children but also to society at large.

74.   See Ellman & Lohr, supra note , who interpret the circumstances differently.

75.   Jeanne Carriere, note supra, at 1720 n. 118. See Samuel supra note at .

76.   This reducing acrimony in divorce has been the mantra of no-fault divorce advocates since the early 1970's. For example, Herma Hill Kay's observation in Beyond No-Fault: New Directions in Divorce Reform, supra note at 8: "If follows that once the marriage is no longer viable, neither its legal existence nor its related legal incidents should become weapons used to obtain revenge for the breakdown or to extort a favorable settlement."

77.   Even in "standard" marriages, adultery and conviction of a felony remain as grounds for divorce. La. Civ. Code art. 103. Furthermore, "fault" of the claimant of final spousal support at divorce has always been and remains an absolute bar to its receipt (La. Civ. Code art. 111) and the conduct of a parent, including his moral fitness, has been and remains relevant to child custody determinations. La. Civ. Code art. 134 (6). Other examples of issues to be litigated that explore "fault" in divorce proceedings include Post-Separation Family Violence Relief Act, La. R.S. 9:361-366. See also La. Civ. Code art. 24 (fault is relevant for entitlement to the marital portion at death).

"Even without covenant marriage fault is still a factor in determining an award of post-divorce spousal support (i.e., post-divorce alimony), thus fault is already litigated in connection with support." Cynthia Samuel, supra note at .

78.   La. R.S. 9:364 in essence makes allegations of sexual abuse of a child the "atomic bomb" of divorce proceedings. If such sexual abuse can be proved, then the abuser's custody and visitation rights are terminated.

79.   Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev. 1803 (1985), cited by Jeanne Carriere, note supra, at 1723, n. 137.

Despite acknowledging that Schneider and Mary Ann Glendon have thoughtful objections to no-fault divorce, Ellman & Lohr, supra note at 734 conclude that, "[o]ne can be sympathetic to many of their points and still support no-fault divorce, for any number of reasons. Unfortunately, however, some of Schneider's and Glendon's observations have been made with phrases easily converted into slogans by others with less nuanced views. A particularly misleading example is the suggestion that no-fault divorce means `no-responsibility' divorce." Such a suggestion is attributed to William A. Galston, Divorce American Style, 124 THE PUBLIC INTEREST 12, 18 (1996).

80.   See, e.g., Jeanne Carriere, note supra at 1723:

However, relatively few actions within the family are so violative of social norms that the relational context makes no difference to the question of blameworthiness. Western literature is replete with evidence for the proposition that even one party's adultery, while a clear breach of the marital obligation and never a good idea, can occur in a context in which culpability for the breach must be shared by the spouses. (see sources in footnote 140)

See also Ellman & Lohr, supra note . Professor Ellman is particularly vehement about the restoration of fault to divorce proceedings for any purpose. See, e.g., The Misguided Movement to Revive Fault Divorce, and Why Reformers Should Look Instead to the American Law Institute, 11 INT'L J. L. POL'Y & FAM. 216 (1997) (Professor Ellman is the chief reporter of the ALI project on Principles of Family Dissolution); The Place of Fault in a Modern Divorce Law, 28 Ariz. St. L. J. 773 (1996). His strong aversion to fault explains why the American Law Institute's project, Principles of the Law of Family Dissolution, does not include fault as a relevant factor for purposes of marital property distribution or compensation payments at divorce.

Even social commentators who understand the destructiveness of divorce are in some cases reluctant to suggest a return to fault-based grounds for divorce. See Maggie Gallagher/Barbara Dafoe Whitehead, End No-Fault Divorce?, FIRST THINGS, Aug.-Sept., 1997 at 24.

81.   Or, "[a] good marriage cannot be legislated, because `[a]lmost all couples who marry believe their love is forever and their commitment is for a lifetime. But things sometimes change and people sometimes change. And sometimes, no amount of work or commitment will make a marriage successful.' " In Note, Marriage and Divorce: Degrees of "I Do," An Analysis of the Ever-Changing Paradigm of Divorce, 9 U. Fla. J.L. & Pub. Pol'y 265, 281 (1998), quoting in note 120 from Difficult Divorces May Add to Misery (Baton Rouge, La.), June 13, 1997, 10 B (editorial).

Compare the language used in the newspaper editorial to that of Max L. Stackhouse in COVENANT & COMMITMENTS: FAITH, FAMILY, AND ECONOMIC LIFE 159 (1997): "Through covenant they become interlocked structures by which our human propensities to egoism, selfishness, short-sightedness, and carelessness are constrained and the possibilities of altruism, generosity, long-range vision, and engagement are evoked."

82.   "[F]amily standardizing reform [traditional family anchored by husband and wife] threatens the very diversity and notions of individual freedom on which more robust notions of the community and family depend." Emphasis added. Bartlett, supra note at 818.

83.   Even more pronounced are the moral judgments made in the context of tort law. La. Civ. Code art. 2315.

84.   La. Civ. Code art. 2013.

85.   La. Civ. Code art. 1983.

86.   La. Civ. Code art. 1996.

87.   La. Civ. Code art. 1997. See also comment (b) for a definition of bad faith that requires proof of intention and maliciousness.

88.   See generally, Mary Ann Glendon, DIVORCE AND ABORTION IN WESTERN LAW 64-81 (1987); Witte, supra note 1; Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. Cinn. L. Rev. 1 (1987).

89.    William Bennett, DEATH OF OUTRAGE: (1998); Gertrude Himmelfarb, THE DE-MORALIZATION OF SOCIETY: FROM VICTORIAN VIRTUES TO MODERN VALUES (1995).

90.   Presently, to obtain a divorce under the provisions of La. Civ. Code art. 102 requires only the filing of pleading forms that can be stored on a computer disk and names substituted. One hundred and eighty days later, the attorney files another form that also may be stored on a computer disk and names substituted. There need be no hearing to prepare for (La. Code Civ. P. art. 3956) and there is but one defense--reconciliation which requires proof of an intention to resume the life in common. La. Civ. Code art. 104.

91.   Compare the time and effort of the attorney in the preparation of the forms required for a divorce under La. Civ. Code art. 102 and that required to prove a case of adultery at a trial. The attorney's time is ordinarily expensive, but his client who is now living separate and apart from the other spouse has almost double the expenses he had before the separation and ultimately, "you can't get blood out of a turnip."

But see Samuel, supra note at : "Covenant marriage will not add much to the expense of divorce in Louisiana. Even without covenant marriage fault is still a factor in determining an award of post-divorce spousal support (i.e., post-divorce alimony), thus fault is already litigated in connection with support."

92.   Carriere, supra note at 1244. The possibility of perjury as to the type of marriage contracted can be solved relatively easily by the requirement that a copy of the marriage certificate be attached to the petition for separation or divorce.

J. Herbie DiFonzo, BENEATH THE FAULT LINE: THE POPULAR AND LEGAL CULTURE OF DIVORCE IN TWENTIETH-CENTURY AMERICA (1997).

93.   New York is always cited as the example of rampant perjury in divorce cases because New York was and continues to be one of the states with the strictest divorce laws in the country.

94.   See Samuel, supra note at : "Some of these problems festered in part due to the lenient attitude of lawyers and judges toward divorce at a time when the legislation was strict as to all couples. But when a couple has voluntarily chosen a strict regime of divorce after premarital counseling on the subject, there is no justification for the lawyer or judge to manipulate or allow manipulation of the law or evidence to effect a divorce for such a couple...." The "problem" of perjured testimony is one that addresses itself to the lawyers and the judges.

95.   See Katherine Shaw Spaht, Why Covenant Marriage? A Change in the Culture for the Sake of the Children, 46 LA. BAR J. 116 (Aug. 1998).

96.   However, not for the reasons Katharine Bartlett describes in her article, supra note at 816: "This Lecture [Brigitte V. Bodenheimer Memorial Lecture on the Family] is about marriage. That does not mean that I believe marriage is the only appropriate vehicle for raising children or nurturing adults; my view is, rather, that marriage is worth strengthening because its popularity and its associations with familial responsibility and commitment to others make it too beneficial a resource to abandon." Obviously, such a view is reflective of what Professor Bartlett describes at the beginning of her article: "The dissonance between my attachment to tradition and my feminism creates the perspective from which I examine public debates about family and values." Id. at 811.

See Midge Decter, The Madness of the American Family, POLICY REVIEW 33 (Sept., Oct. 1998) ("In a recent talk, author and social critic Midge Decter asked why the wealthiest and healthiest country on earth has such nutty ideas about the family").

97.   Educational options are always favored by the same persons who strenuously oppose any changes in the law which permit autonomy of the individual (license). As a consequence "education" about virtually everything has grown from a "cottage" to a "nationalized" industry. At the same time the public wrings its hands because primary and secondary education in this country have failed in its responsibility to teach our children basic skills.

98.   Michigan House Bill No. 5217, 89th Leg., Reg. Sess. (Mich. 1997); S. File No. 2935, 89th Leg., Reg. Sess. (Mich. 1997). The most controversial of her bills was the bill to repeal unilateral no-fault divorce. It was the centerpiece of her legislative package and the first legislative initiative to receive national attention.

Neither measure passed the Michigan Legislature and by virtue of term limits Representative Dahlman, a truly courageous female legislator, no longer may continue her quest to end the tragic consequences of no-fault divorce for Michigan citizens.

99.   The "Marriage Preparation and Preservation Act," Chap. 98-403 (H.B. No. 1019) (2d Reg. Sess. 1998) (eff. Jan. 1, 1999). Pre-marital counseling is encouraged for engaged couples by the incentive of $32.50 reduction in the cost of a marriage license, which may not prove to be a strong enough incentive.

In addition another provision of the same legislation requires that a course in life management skills (1/2 credit), which would include among the other components marriage and relationship skill-based education, be taught to high school students as a graduation requirement. Fla. Stats. 232.6 (eff. Jan. 1, 1999). Unfortunately, the bill does not require that "marriage" and its benefits be extolled, and the legitimate fear based upon past experience is that any curriculum added to the high schools in Florida will treat all "relationships" as of equal value. Thus, conflict resolution skills taught as a part of this curriculum, much like the PARTNERS program developed by the American Bar Association, will relate to all types of relationships, rather than an emphasize the use of those skills to prolong and strengthen a couple's marriage.

Another component of the Act is the creation of a Family Law Handbook to be prepared by the Family Law Section of the Florida Bar Association which would detail the rights and obligations of spouses, including property law and divorce law, and be available in the Clerk of Court's office. Fla. Stats. 741.0306 (eff. Jan. 1, 1999).

100.   See Margaret F. Brinig, Status, Contract, & Covenant, 79 Cornell L. Rev. 1573 (1994). See also Margaret F. Brinig, CONTRACT OR COVENANT (Harvard Univ. Press forthcoming, 1998).

101.   Black's Law Dictionary (4th ed. 1968) defines covenant as "[a]n agreement, convention, or promise of two or more parties, by deed, in writing, signed, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts...."

102.   See, Comment, Covenant Marriages: A Guise for Lasting Commitment?, 43 Loyola L. Rev. 421 (1998).

103.   John Witte, Jr., FROM SACRAMENT TO CONTRACT: MARRIAGE, RELIGION AND LAW IN THE WESTERN TRADITION (1997).

104.   Max L. Stackhouse, COVENANT & COMMITMENTS: FAITH, FAMILY AND ECONOMIC LIFE 140 (1997).

105.   Id. at 142.

106.   Ordinarily, the term minister is used to refer to the leader of an individual Protestant church--for example, a Baptist minister.

The Southern Baptist denomination adopted resolutions at both their state convention in November, 1997, and at their national convention in June, 1998, endorsing covenant marriage legislation in Louisiana and legislative attempts to adopt similar legislation in other states.

The Methodist Bishop for the region that includes Louisiana issued a statement labeling covenant marriage legislation "unnecessary," "confusing," and "intrusive." Press release from the Louisiana Area United Methodist Church (June 27, 1997) (on file with author). See Church Leaders Debate `Covenant Marriage,' Interpreter 15 (May-June 1998), a publication of the United Methodist Church. Methodists who are not members of the United Methodist Church are celebrating and encouraging covenant marriages.

Evangelical Protestant denominations, such as Assemblies of God and Pentecostals, have likewise embraced the concept of covenant marriage and some individual churches require a covenant marriage license for the marriage to be celebrated in their sanctuary or chapel. The requirement reflects their belief that the covenant marriage more nearly represents their religious view of marriage. The author of the student comment, Covenant Marriages: A Guise for Lasting Commitment, 43 Loy. L. Rev. 435 n.69 (1998) labels such a morally consistent position bias.

107.   The category of priest would include a priest in the Catholic Church. However, the Catholic Bishops of Louisiana issued a pastoral statement in October, 29, 1997, which commended the concern of the legislature for strong and stable marriages but refused to permit their priests to offer instruction on divorce, as the Act requires, contrary to the Church's teaching. (on file with the author) See Bruce Nolan, Bishops Back Off Covenant Marriage, TIMES-PICAYUNE, Oct. 30, 1997.

Priest may also include a priest in the Episcopal Church. Unlike the Catholic Bishops, Bishop Charles Jenkins in a statement issued in October, 1997, surprisingly objects to covenant marriage because "[B]y brings couples in covenant marriages back to a fault-based divorce system, with its cynicism and occasional collusion for the sake of a divorce, `It goes back to the bad old days regarding divorce and dissolution of a household,' [Bishop Jenkins said. `We've been there; it doesn't work. Those old ideas compromised the moral character of couples; they compromised the integrity of judges, courts and attorneys." Id.

108.   Although no official statement has ever been issued by a Jewish rabbi, the Times-Picayune reported that Jewish leaders already had signaled little support for the new civil contract, but no official statement was ever issued or reported identifying the Jewish leaders. Id.

109.   La. R.S. 9:202.

110.   European practice is quite different and requires a civil ceremony before a civil magistrate for state recognition; a religious ceremony is purely optional. See Katherine Shaw Spaht, Family Law in Louisiana 1-2 (2d ed. 1998). See also Witte, supra note ; Mary Ann Glendon, ABORTION AND

DIVORCE IN WESTERN LAW (1987).

111.   See Note, The Constitutionality of Covenant Marriage Laws, 66 Fordham L. Rev. 2471, 2504 n.306 (1998): "If opponents of the law argued in court that covenant marriage violates the Establishment Clause, the argument would not likely go far as there is evidence that many churches reject covenant marriage....The Court [in Harris v. McRae] rejected this argument [violation of separation of church and state], holding that `it does not follow that a statute violates the Establishment Clause because it "happens to coincide or harmonize with the tenets of some or all religions.' " The student author also concluded that covenant marriage laws did not violate the due process or equal protection clauses of the Fourteenth Amendment to the United States Constitution.

112.   La. R.S. 9:273 A. (2)(a) ("or secular marriage counselor"); La. R.S. 9:202 (2), 203 (celebrant may be a judge or justice of the peace).

The American Civil Liberties Union had argued at the hearing before the House Committee on Civil Law and Procedure that the content of the covenant marriage legislation represented an unconstitutional violation of "the separation of church and state." It is difficult to understand such an argument when the legislation clearly provides a secular alternative. By the time of the hearing on the bill in the Senate Committee on Judiciary A, the failure to separate church and state argument was only a minor part of the myriad objections of the ACLU to the bill. See discussion in notes supra.

113.   La. R.S. 9:273 A. (2)(a).

114.   La. R.S. 9:334 (A)(1)(b).

115.   There have been no reported appellate court cases interpreting the term, marriage counselor, in the statute that imposes qualifications for mediators. La. R.S. 9:334 (A)(1)(b). However, the statute qualifies marriage or family counselor with the adjectives licensed or certified.

116.   La. R.S. 37:1102.

117.   Id. 37:1103(4) (a).

118.   La. R.S. 37:1107. The specific requirements, particularly educational, are detailed and fairly onerous. In addition to the eight required areas of study of at least one semester (A (8)(b), one of the two areas encouraged for inclusion in graduate training is "marriage and family studies." A. (8)(c).

119.   Carriere, supra note at 1708.

120.   Id. at note 41.

121.   La. R.S. 9:273 A. (2)(a).

122.   See discussion in text at note supra.

123.   La. R.S. 9:273 A. (1).

124.   Section 5 of 1997 La. Acts, No. 1380.

125.   La. R.S. 9:237.

126.   Nonetheless, the requirement that the counselor explain the grounds for divorce prevented the priests in the Catholic Church in Louisiana from fully participating in a movement designed to strengthen marriage. The tragedy is that by comparison to the "standard" marriage in Louisiana, a covenant marriage more closely conforms to the Catholic Church's understanding of Christian marriage. At a time when the Church's annulment practices are under attack Catholics would have benefitted by embracing covenant

marriage and promoting it for its faithful. See Shelia R. Kennedy, FAITH SHATTERED (1997).

127.   Note, Covenant Marriages: A Guise for Lasting Commitment?, 43 Loy. L. Rev. 421, 435 (1997). See also similar criticism in Carriere, supra note at 1708-1710.

128.   La. Civ. Code art. 102. See Florida legislation creating a Family Law Handbook to be distributed in every Clerk of Court's office in Florida, note supra.

129.   Two documents are required whether the couple is to be married for the first time or is already married and is converting to a "covenant" marriage; however, the Declaration of Intent signed by a couple not yet married (La. R.S. 9:273 A. (1)) and the Declaration signed by an already-married couple (La. R.S. 9:275 C. (1)(a)) differ.

130.   La. R.S. 9:273 A. (1).

131.   La. R.S. 9:273 A. (2) (a) (b); 273 B. (two documents).

132.   See Carriere, supra at 1712: "A more likely intent on the part of the legislature was to provide a statement of the aspirations of the parties to a covenant marriage. The commitment to seek marital counseling occurs in the declaration of intent, in the midst of other statements couched as agreements and promises, cut conveying aspirations, rather than constituting binding contracts."

Two other authors recognized the obligation as legal but assumed that the obligation was a prerequisite to filing for divorce. See Comment, Covenant Marriages: A Guise for Lasting Commitment?, 43 Loy. L. Rev. 421, 436-38 (1997). See also Cynthia Samuel, Letter From Louisiana: An Obituary for Forced Heirship and A Birth Announcement for Covenant Marriage, 12 Tul. Eur. & Civ. L. For. n.20 (1998): "Treatment of the counseling agreement as aspirational rather than as a requirement would solve this problem [danger of counseling in physical abuse cases], but La. R.S. 9:307A appears to make counseling a requirement before the judgment of divorce can be obtained." See discussion of R.S. 9:307A in text at notes infra.

133.   La. R.S. 9:273 A.(1): "...We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live...."

134.   La. R.S. 9:307 A. See discussion in text at notes infra concerning the inability to dissolve covenant marriage by mutual consent as is possible in an ordinary contract.

135.   See discussion in text at notes concerning the benefits of lifelong marriage not only for the children but also for the two spouses. For the best summary of the evidence, see Glenn S. Stanton, Why Marriage Matters: Reasons to Believe in Marriage in Post-Modern Society (1997).

136.   The aspirational goal of lifelong marriage in the Declaration deliberately signed and solemnized by the couple reflects the role of law in educating and persuading the public. James Boyd White asserts that "law is most usefully seen not...as a system of rules, but as a branch of rhetoric ... as the central art by which community and culture are established, maintained and transformed." Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684, 684 (1985). Mary Ann Glendon expresses the same view and draws upon her knowledge as a comparativist: "The rhetorical method of law making appears not only in the great continental codifications, but also, here and there, in all sorts of contemporary European legislation. It is most especially evident in continental family law." GLENDON, ABORTION AND DIVORCE, supra note at 7.

137.   La. R.S. 9:273 A. (1).

138.   La. Civ. Code art. 1906. See discussion of the consequences of its recognition as a contractual obligation in the text at notes infra. See also a similar discussion in Carriere, supra note at 1711-1712, wherein the author assumes in her discussion that the agreement might be a contract and what remedies would be available. Her conclusion is that the remedies may not be meaningful "for achieving the stated goal of the legislation." Id.

139.   La. Civ. Code art. 98, comment (b). See also such representative cases as Holliday v. Holliday, 358 So.2d 618 (La. 1978); Favrot v. Barnes, 332 So.2d 873 (La. App. 4th Cir. 1976), writs denied 334 So.2d 436 (La. 1976).

140.   Legal compulsion does not necessarily mean specific performance, but legal compulsion does mean that there are consequences for the spouse who having made the promise fails to perform it. See discussion in text at notes infra.

141.   La. R.S. 9:274: "A covenant marriage shall be governed by all of the provisions of Chapters 1 through 4 of Title IV of Book I of the Louisiana Civil Code and the provisions of Code Title IV of Code Book I of Title 9 of the Louisiana Revised Statutes of 1950."

Chapters 1 and 2 of Title IV of Book I concern prerequisites for contracting a valid marriage and grounds for nullity of marriage.

142.   Id. See also La. Civ. Code arts. 88 (existing marriage), 89 (same sex), and 90 (related within the prohibited degrees).

143.   Id. See also La. Civ. Code arts. 91 (description of marriage ceremony requirements), 92 (no marriage by procuration).

144.   Id. See also La. Civ. Code art. 93 (consent is not freely given if the result of duress or if given by a person incapable of discernment).

145.   La. Civ. Code art. 94.

146.   La. Civ. Code art. 95.

147.   See discussion in text at notes infra.

148.   La. Civ. Code arts. 1953-58. Compare Carriere, supra note at 1729-30.

149.   La. Civ. Code arts. 86-97.

150.   The statement that appears in the declaration for couples to be married for the first time (La. R.S. 9:273 A (1)) does not appear in the declaration to be signed by already married spouses who are converting their marriage to a covenant marriage. See La. R.S. 9:275 C (1)(a). The reasons should be obvious.

151.   As well as already married couples, see La. R.S. 9:275 C. (1) (a).

152.   La. R.S. 9:273 A. (1).

153.   1997 La. Acts, No. 1380, §5.

154.   La. R.S. 9:273 A (1): "... We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life...."

155.   La. Civ. Code art. 1949-1952.

156.   La. Civ. Code arts. 1953-1958. See generally, Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. L. Rev. 1 (1989).

157.   La. R.S. 9:273 A (1). Emphasis added.

158.   La. Civ. Code art. 1953. See also comment (b): "Under this Article, fraud may result not only from an act, such as a false assertion or suppression of the truth, but also from a failure to act, such as silence, that is calculated to produce a misleading effect."

159.   Id. See also Carriere, supra note at 1728-29: "In contrast to other statements in the declaration [see discussion in notes supra and notes infra], this is not an aspiration for the future, but an acknowledgment that an act took place in the past. At least for covenant marriages, a court seeking free consent should look beyond the ceremonial words to how the other party elicited them, and fraud should be regarded as vitiating it."

160.   See La. Civ. Code art. 1954.

161.   La. Civ. Code art. 1953.

162.   See Orr v. Walker, 236 La. 740, 109 So.2d 77 (1959) for an example of the meaning of inconvenience (certain rights incapable of monetary appraisal), as distinguished from loss, which is generally understood to mean pecuniary loss.

163.   La. Civ. Code art. 1955.

164.   La. Civ. Code art. 1954.

165.   Id. See also comment (b): "Under the exception provided in the second paragraph of this Article, there is fraud even when a party could have readily ascertained the truth without difficulty, inconvenience, or special skill, when a relation of confidence has induced the party to rely on the other's assertions or representations." Notice that suppression of the truth, silence and inaction are not included.

166.   For the most recent example of a confidential relationship, see La. Civ. Code art. 1483. The ordinary standard of persuasion to annul a last will and testament for undue influence is clear and convincing evidence. However, if a relationship of confidence existed between the wrongdoer and the testator, then the burden of persuasion is reduced to a simple preponderance of the evidence unless the wrongdoer is related to the testator by affinity, consanguinity or adoption. In comment (c) the redactors explain that a confidential relationship generally will affect the burden of proof but that the Article does not lower the standard of proof "where a challenge is made against a confidante who is related to the donor by marriage ... because in many instances the most likely persons who would be involved would be a spouse or child." Emphasis added. Clearly, husbands and wives enjoy a confidential relationship; therefore, an engaged couple should enjoy a confidential relationship.

167.   La. Civ. Code art. 1957.

168.   La. Civ. Code arts. 2031 (relative nullity if lack of free consent), 2032 (five year liberative prescription to begin with discovery), 2033 (effect of annulment).

Arguably, unlike a relatively null marriage, it could be argued that the covenant spouse who annuls the covenant marriage for fraud may claim damages and attorney's fees. La. Civ. Code art. 1958. A "standard" marriage may be annulled if consent is given under duress or by one incapable of discernment, but the specific Civil Code articles (La. Civ. Code arts. 95, 97, 101) indicate that annulment is the only remedy available. Compare the remedy available if an ordinary contract is annulled for duress. La. Civ. Code art. 1964.

169.   La. Civ. Code art. 2031. Cf. La. Civ. Code art. 95.

170.   See La. Civ. Code art. 95 and comments thereto for analogous treatment of tacit confirmation by cohabitation by the couple.

171.   La. Civ. Code art. 1842. Cf. La. Civ. Code art. 95.

172.   See Samuel, supra note at : "Nevertheless, in Louisiana I hear the objection that covenant marriage will not be freely chosen, but will be forced upon immature couples by their parents, priests, ministers, or rabbis. A situation of true duress by parents and clergy could be remedied by invalidating the couple's consent to the covenant marriage and treating the marriage as a non-covenant marriage. But when the choice of covenant marriage is a result not of duress, but of religious or moral scruples instilled in the couple from childhood, the choice should be considered free and binding, especially since the marriage will not be absolutely indissoluble."

173.   La. Civ. Code arts. 1948, 1959 et seq. See La. Civ. Code art. 93: "Consent is not free when given under duress...."

174.   La. Civ. Code art. 86. See Katherine S. Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1145 (1988).

175.   La. Civ. Code art. 93 provides that "[c]onsent is not free if given under duress or when given by a person incapable of discernment." The Article does not provide that consent is not free only in those two instances. See also Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1145 (1998).

176.   La. Civ. Code arts. 1927-1965.

See Katherine Shaw Spaht, Revision of the Law of Marriage: One Baby Step Forward, 48 La. L. Rev. 1131, 1145 (1998): "An argument can be made that article 93 does not declare that the reasons for defective consent are exclusive. Therefore, an aggravated case involving a mistake in physical identity could be resolved by resort to the general articles on error. A justification for resorting to those articles is that article 86 defines marriage as a relationship created by civil contract. The words civil contract were used for two reasons: (1) To demonstrate the historical assertion of jurisdiction over marriage by secular authorities and (2) To permit analogy to the law of conventional obligations when appropriate."

177.   Carriere, supra note at 1728. See Stier v. Price, 37 So.2d 847 (La. 1948); Delpit v. Young, 25 So. 547 (La. 1899); Verneuille v. Verneuille, 438 So.2d 615 (La. App. 4th Cir. 1983); McKee v. McKee, 262 So.2d 111 (La. App. 2d Cir. 1972). See also Katherine Shaw Spaht, Family Law in Louisiana 81-82, 84-91 (2d ed. 1998).

178.   La. Civ. Code art. 93, comment (e): "... [T]his Article omits reference to `mistake respecting the person' as a cause of invalidity. The jurisprudence strictly interpreted that language as referring only to mistakes of physical identity.... As so limited, the omitted language was never applied to invalidate a marriage in Louisiana."

179.   Carriere, supra note at 1728.

180.   La. R.S. 9:273 A (1).

181.   La. Civ. Code arts. 98 (see also comment (e)), 1968. See also cases cited in note supra.

182.   La. Civ. Code art. 1906: "A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished." Emphasis added.

183.   Carriere, supra note at 1712: "A more likely intent on the part of the legislature was to provide a statement of the aspirations of the parties to a covenant marriage. The commitment to seek marital counseling occurs in the declaration of intent, in the midst of other statements couched as agreements and promises, but conveying aspirations rather than constituting binding contracts...."

See Samuel, supra note : "Treatment of the counseling agreement as aspirational rather than as a requirement would solve this problem, but LA R.S. 9:307A appears to make counseling a requirement before the judgment of divorce can be obtained."

184.   Obligation is defined in La. Civ. Code art. 1756: "An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee...." See also comment (b) to La. Civ. Code art. 1760 (obligation without preceding adjective means "civil" obligation which can be enforced by legal action). See also La. Civ. Code art. 1758 (effect of obligation).

By contrast, the aspirational statement in the Declaration of Intent that a covenant marriage is for life is treated differently in the provision that mandates the content of pre-marital counseling. The counselor "shall include" communication of the fact that a covenant marriage is a commitment for life...." La. R.S. 9:273 A. (2)(a).

185.   La. R.S. 9:273 A. (2)(a).

186.   La. R.S. 9:307 A.: "Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of...."

187.   See discussion in text at notes infra that reasonable steps to preserve the marriage may include steps that are not marital counseling.

188.   See text at note supra.

189.   La. Code Civ. P. art. 926.

190.   Id. art. 927.

191.   A peremptory exception under La. Code Civ. P. art. 927 is no cause of action. Without the strength of only to support the argument that no judgment of divorce or separation can be rendered in a "covenant" marriage without counseling first, there is no basis for arguing that there is no cause of action.

192.   See discussion in text at notes infra.

193.   A dilatory exception can be raised under La. Code Civ. P. art. 926 if the action is premature. The argument would be that "counseling" under La. R.S. 9:307 A., B. is a prerequisite to the filing of an action for divorce or separation and thus that the action is premature until compliance with the obligation to seek counseling. However, because the obligation may not be enforced by specific performance, the obligation may not ever be fulfilled.

194.   By virtue of the simple phrase contained in Section 307 and the fact that there is no specific mechanism for counseling as a required prerequisite for filing a petition for divorce, a persuasive argument can be made that counseling is not a preliminary requirement for divorce in a covenant marriage. But see Samuel, supra note at n.20.

See Carriere, note supra at 1712: "Moreover, if the state were to require counseling as a preliminary to separation or to divorce, it might, under Boddie v. Connecticut, have to subsidize the counseling for the indigent."

195.   See discussion in text at notes infra. The author disagrees with the observation by Professor Jeanne Carriere in her article in 72 Tul. L. Rev. 1701, 1711-12: "However, whether a meaningful remedy exists is doubtful.... Damages, the more usual remedy for the breach of a contract of such a personal nature, are equally pointless for achieving the stated goal of the legislation...." The legislation has more than one goal and restoration of power to the spouse who desires to preserve the marriage is one of them. The availability of damages is simply another weapon in her arsenal.

196.   Title IV of Book III, comprised of La. Civ. Code arts. 1906-2057.

197.   La. Civ. Code art. 1983. The covenant marriage itself, which includes issues of status that are matters of public order (i.e. termination by divorce), may not be dissolved by mutual consent. See discussion in text at notes infra.

198.   La. Civ. Code art. 1968.

199.   See discussion in text at notes supra.

200.   La. Civ. Code arts. 1983 (contracts) and 1759 (obligations).

201.   See La. Civ. Code art. 3506.

202.   See, e.g., Grisaffi v. Dillard Depart. Stores, Inc., 43 F.3d 982 (5th Cir. 1995); Delta Truch & Tractor, Inc., v. J.I. Case Col, 975 F.2d 1192 (5th Cir. 1992); CNB v. Audubon, 566 So.2d 1136 (La. App. 2d Cir. 1990).

203.    Bad faith is defined in comment (b) to La. Civ. Code art. 1997 as an act that is intentional and malicious. In Delta Truck & Tractor, Inc. v. J.I. Case Co., 975 F.2d 1192, 1204 (5th Cir. 1992), the court found that a contractual party had breached its duty to act in good faith as a matter of law: "... IH sold its agricultural equipment business to Case knowing that the transaction would result in the termination of IH dealers without cause.... IH deliberately structured the transaction so as to leave the terminated IH dealers with little or no recourse against either IH or Case."

204.   357 So.2d 596 (La. App. 1st Cir. 1978).

205.   La. Civ. Code arts. 1949-1952.

206.   La. Civ. Code arts. 1953-1958.

207.   La. Civ. Code arts. 1959-64.

208.   La. R.S. 9:273 A. (2)(a). In addition the counselor must sign a notarized affidavit that he counsel them consistent with their own affidavit. See also La. R.S. 9:273 A. (2)(b).

209.   See La. Civ. Code art. 1954 (no fraud if could have ascertained the truth without difficulty).

210.   "Reasonable steps" does not necessarily mean only marital counseling. See discussion in text at notes infra.

211.   Carriere, supra note at 1712-13: "The Los Angeles Conciliation Court of the 1950s permitted a spouse who felt that his marriage was in difficulty to petition for a conciliation hearing, at which the other spouse's attendance could be compelled. The goal of the court was to effect reconciliation by means of counseling that led to a detailed 'reconciliation agreement,' itself enforceable through use of the court's contempt power to impose finds and even imprisonment. Even though at least one spouse probably wanted to save the marriage California's experiment with compulsory conciliation was apparently a failure. [footnote 71 at 1712 cites J. Herbie DiFonzo, Beneath the Fault Line: The Popular and Legal Culture in Twentieth Century America (1997), which concludes that there are no reliable statistics] A similar experiment in New Jersey likewise failed. Beginning in September 1957, the New Jersey Legislature established `quasi-mandatory marriage counseling' for those seeking divorce in two districts of the state. After three years, the program ended with a failure rate of 97.3 percent...."

212.   Id.

213.   See discussion in text at notes infra.

214.   Analogously, Cynthia Samuel, supra note at opines: "But when a couple has voluntarily chosen a strict regime of divorce after premarital counseling on the subject, there is not justification for the lawyer or judge to manipulate or allow manipulation of the law or evidence to effect a divorce for such a couple."

215.   See discussion in text at notes supra.

216.   La. Civ. Code arts. 1983 and 1759.

217.   See discussion of the jurisprudence in text at notes supra.

218.   Id. See also discussion in text at notes infra.

219.   Carriere, supra note at 1713-14. See also Gallagher, supra note ; Whitehead, supra note ; William J. Doherty, How Therapists Threaten Marriages, THE RESPONSIVE COMMUNITY, Summer 1997, at 31; Peter Kramer, Divorce and Our National Values, N.Y. TIMES, Aug. 29, 1997, at 23A.

220.   "The present lack of licensing for marriage counselors in Louisiana adds a further danger to the marriages of receptive couples who in good faith entrust themselves to an untrained mountebank." Carriere, supra note at 1714. See discussion in text at notes supra.

221.   Carriere, supra note at 1713: "One reason given for the alleged hostility toward marriage is the philosophical dedication of therapists to their clients' individual fulfillment and happiness, rather than to saving their marriages.... In the unlikely event that the accusations that marriage counselors in general encourage divorce were true, the obligation to seek counseling in a

covenant marriage might increase, rather than decrease divorce."

But see Kramer, supra note .

222.   "But a venal, as well as a philosophical, motive for advocating divorce has been attributed to marriage counselors: divorcing couples and family courts make extensive use of psychological expertise, creating a `bonanza' for the helping professions." Carriere, supra note at 1713.

223.   Among such therapists is Diane Sollee, Director of Coalition for Marriage, Family and Couples Education. She organized the Second Annual Smart Marriages/Happy Marriages Conference in Washington, D.C. held July 8-12.

224.   The author is unwilling to state unequivocally that the counseling by a religious figure will emphasize preservation of the marriage because of the statements about covenant marriage by at least one leader of a religious denomination. See statements by Episcopal Bishop Charles Jenkins in the Times-Picayune, supra note .

225.   "Second, the neutral moral stance of marital counselors, according to conservative commentators, encourages divorce by failing to assign blame to the spouse responsible for the breakdown of the marriage...." Carriere, supra note at 1713.

The conservative commentators to whom Carriere refers are Barbara Dafoe Whitehead, supra note and Maggie Gallagher, supra note .

226.   See discussion in text at notes supra.

227.   Carriere, supra note at 1714: "Whatever hypothetical benefits mandated counseling offers, they are more than offset by its most serious drawback: The obligation to obtain counseling, if treated as a mandatory step prior to divorce for those in a covenant marriage, may endanger battered spouses." Emphasis added. The subsection of Carriere's article in which this statement appears is entitled, "Risking Lives to Save Marriages." See also Samuel, supra note at n.20.

228.   Carriere, supra note at 1714: "This is not a negligible group; domestic violence is an experience common to `[u]p to one half of all American women--and approximately two thirds of women who are separated or divorce," according to Martha Mahoney [Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 3 (1991)]. Mahoney's calculations underreport domestic violence because, first she examined only female victims and, second a recent report by the Justice Department indicates that occurrences have been startlingly underestimated."

229.   "The Louisiana Legislature has recognized the danger that separation poses to spouses and children and has sought to protect these victims through the Post-Separation Family Violence Relief Act." Carriere, supra note at 1715. The Post-Separation Family Violence Relief Act is contained in La. R.S. 9:361-69.

230.   In a footnote in her article in the same section in which she so severely criticizes the "counseling" agreement in a covenant marriage, Professor Carriere observes: "It is difficult to understand the logic by which assigning blame to a party dissatisfied with her or his marriage is viewed as a means of preventing marital breakdown; it seems that it would supply an added source of grievance and an added impetus to end the marriage. Of course, if the blame is deserved, as in the case of a battering spouse, then such a result (assuming safe separation from the batterer) could benefit both the victim and society." Carriere, supra note at 1714, n.80.

231.   La. Civ. Code art. 2003: "An obligee may not recover damages when his own bad faith has caused the obligor's failure to perform....If the obligee's negligence contributes to the obligor's failure to perform, the damages are reduced in proportion to that negligence."

In addition if the abuser had failed to perform his obligation to take reasonable steps, the victim could raise the defense of nonperformance. La. Civ. Code art. 2022.

232.   La. Civ. Code art. 1997, comment (b).

233.   See discussion in text at notes supra.

234.   The Catholic program, Retrouvaille, an outgrowth of Marriage Encounter, has a very successful track record in preserving marriages. For information about Marriage Savers and Retrouvaille, see Michael J. McManus, MARRIAGE SAVERS (1995).

235.   La. Civ. Code art. 1986.

236.   La. Civ. Code art. 1767.

237.   "The difficulty of proving that marital difficulties existed may be bootstrapped by the court, because the presence of the couple in the courtroom would be evidence enough that they do." Carriere, note supra at 1711.

238.   A breach may occur, according to La. Civ. Code art. 1994, if a spouse fails to perform by nonperformance, defective performance, or delay in performance.

239.   Id.

240.   La. R.S. 9:308 A.: "Unless judicially separated, spouses in a covenant marriage may not sue each other except for causes of action pertaining to contracts...."

241.   La. Civ. Code art. 1986: "... Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court."

See also comment (c): "... If the obligation which the obligee has failed to perform is an obligation to do, the granting of specific performance lies with the discretion of the court, to be exercised in a manner consistent with the principle that the obligor's personal freedom ordinarily may not be encroached upon...." Emphasis added.

242.   Carriere, supra note at 1711.

243.   La. Civ. Code art. 1995 (loss sustained and profit deprived).

244.   La. Civ. Code art. 1998.

245.   La. Civ. Code art. 1994: "An obligor is liable for the damages caused by his failure to perform a conventional obligation...."

Causation, of course, is a serious issue in the breach of a contractual object like that in the Declaration of Intent. For analogous jurisprudence, see Sanders v. Gore, 676 So.2d 866 (La. App. 3d Cir. 1996) (breach of promise to marry; promise to marry against public policy because married to someone else at time promise made); Glass v. Wiltz, 551 So.2d 32 (La. App. 4th Cir. 1989) (breach of promise to marry; failed to prove breach caused damages).

246.   Such expenses might include rent or house note, ordinary living expenses (i.e. food, furnishings, staples, telephone, utilities, etc.), and other extraordinary expenses related to living separately from the spouse who desires to preserve the marriage.

247.   See, e.g., Fussel v. La. Business College of Monroe, 519 So.2d 384 (La. App. 2d Cir. 1988); Folds v. Red Arrow Towbar Sales, 378 So.2d 1054 (La. App. 2d Cir. 1979).

One possible claim to lost future profits might succeed if the breaching spouse obtained a separation of property judgment after living separate and apart from the plaintiff for six months. See La. Civ. Code art. 2374 D. If the plaintiff spouse could prove that living together was a reasonable step to take to preserve the marriage but that the other spouse had refused, then plaintiff might be able to recover her one-half interest in what would have been community property but for the judgment of separation of property. Ultimate recovery would depend upon the strength of the plaintiff's argument about living together as a reasonable step and the extent of her recovery upon proof of how long that living together would have been a reasonable.

248.   La. Civ. Code art. 1996: "An obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made."

249.   La. Civ. Code art. 1997: "An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform."

250.   La. Civ. Code art. 1997, comment (b).

251.   La. Civ. Code art. 1998. See also Saul Litvinoff, THE LAW OF OBLIGATIONS IN THE LOUISIANA JURISPRUDENCE 517-32 (4th ed. 1997).

252.   Id.

253.   Id., comment (b).

254.   Id., comment (d).

255.   See, e.g., Sanders v. Gore, 676 So.2d 866 (La. App. 3d Cir. 1996); Glass v. Wiltz, 551 So.2d 32 (La. App. 4th Cir. 1989).

256.   La. Civ. Code art. 1999: "When damages are insusceptible of precise measurement, much discretion shall be left to the court for the reasonable assessment of these damages."

257.   La. Civ. Code art. 1999, comment (b).

258.   See Williams v. North Carolina I, 317 U.S. 287 (1942); Williams v. North Carolina II, 325 U.S. 226 (1945). See also La. Code Civ. P. art. 10 A. (7).

259.   See discussion in text at notes supra.

260.   See authorities cited in note supra.

261.   Domicile is residence in fact with an intention to remain permanently or indefinitely. See La. Civ. Code art. 42. See Mississippi Board of Choctaw Indians v. Holyfield, 109 S.Ct. 1597, 1608 (1989).

262.   See note supra.

263.   Carriere, supra note at 1731.

264.   See discussion in text at notes supra.

265.   La. R.S. 13:3201 B.

266.   See discussion in text at notes supra.

267.   Id.

268.   See, e.g., Burger King Cor. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed. 2d 528 (1985); Dickson Marine, Inc. v. Panalpina, Inc., 961 F. Supp. 947 (E.D. La. 1997).

269.   See Anderson v. Interamerican Manufacturing, Inc., 693 So.2d 210 (La. App. 4th Cir. 1997); Coastal Credit Co., Inc. v. CSS, Inc., 685 So.2d 464 (La. App. 3d Cir. 1996); Teknika Electronics Corp. v. SES/LA, 673 So.2d 1129 (La. App. 3d Cir. 1996).

270.   "In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction--general and specific jurisdiction.... When a state exercise personal jurisdiction over a defendant in a suit arising out of or related to the defendant's contacts with the forum, the state is exercising specific jurisdiction over the defendant...." (Emphasis added.) Teknika Electronics Corp. v. SES/LA, 673 So.2d 1129, 1133 (La. App. 3d Cir. 1996).

271.   Id. at 1133-34.

272.   La. R.S. 9:3201 A. (6): "A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident...Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state." See Wicker v. Wicker, 597 So.2d 1273 (La. App. 3d Cir. 1992).

273.   Coastal Credit Co., Inc. v. CSS, Inc., 685 So.2d 464 (La. App. 3d Cir. 1996).

274.   Id. at 467, quoting from deReyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 107 (La. 1991).

275.   La. R.S. 13:3201 A. (6).

Other relevant factors mentioned by the court in Teknika Electronics Corp. v. Satellite Earth Stations of La., Inc., 673 So.2d 1129, 1134 (La. App. 3d Cir. 1996), appear to permit the exercise of personal jurisdiction over a nonresident defendant "when he presents sufficient minimal contacts that do not alone satisfy due process considerations." Factors to be considered include: "... the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, at least where that interest is not adequately protected by the plaintiff's power to choose the forum, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states

in furthering fundamental substantive social policies."

276.   The interest of the state of Louisiana in deciding an issue unique to Louisiana's covenant marriage law is strong. The Louisiana judiciary will be more informed than judges from other states about the distinct provisions of the covenant marriage statutes.

277.   See authorities in note supra.

278.   Spaht, supra note ; Samuel, supra note .

279.   See, e.g., Carriere, supra note ; Bartlett, supra note .

280.   See, e.g., Bartlett, supra note ; Ellman & Lohr, supra note .

281.   A Stealth Anti-Divorce Weapon, ABA J., Sept. 1997, at 28.

282.   See Ira Mark Ellman, Senate Bill Revives Horror of Fault Divorce, Ariz. Rep. B5, Fri. March 6, 1998. Contra: Len Munsil, Proposal Weeds Out Less Committed, Ariz. Rep. B5, Fri., March 6, 1998.

283.   The comparison of grounds for divorce in a "standard" marriage to those of a "covenant" marriage occur in the text at notes infra.

284.   La. R.S. 9:307 A. (1)-(4).

285.   La. R.S. 9:307 B. (6).

286.   La. R.S. 9:307 A. (6).

287.   La. R.S. 9:307 A (5).

288.   La. Civ. Code arts. 102, 103.

289.   La. Civ. Code arts. 138, 139; La. R.S. 9:301, 302. See Katherine S. Spaht, Family Law in Louisiana 146-49 (2d ed. 1998).

In 1979 La. R.S. 9:301 was amended to permit a no-fault divorce when the spouses have lived separate and apart for one year.

290.   Often the period of time during which the spouses live separate and apart as required by La. Civ. Code arts. 102, 103, is the most dangerous time for an abused spouse. Passage of the Post-Separation Family Violence Relief Act (La. R.S. 9:361-69) recognized the post-separation period as a particularly vulnerable time period.

291.   La. Civ. Code art. 138 (5) (repealed Jan. 1, 1991).

292.   La. Civ. Code art. 138 (repealed Jan. 1, 1991).

293.   La. Civ. Code art. 138 (eff. before the 1979 legislative session) included the following as grounds for separation from bed and board: adultery, conviction of a felony and a sentence to imprisonment at hard labor or death, habitual intemperance and cruel treatment that rendered the common life together insupportable, public defamation, abandonment, attempt on the life of the other spouse, fled from justice after having been charged with a felony, and intentional nonsupport of a spouse in destitute or necessitous circumstances.

294.   For a description of the unilateral and the mutual no-fault grounds for separation from bed and board, see Katherine Shaw Spaht, Family Law In Louisiana, 148 (2d ed. 1998).

295.   La. R.S. 9:307 B. (1)-(6).

296.   See other grounds for separation from bed and board that existed before Jan. 1, 1991, in note supra.

297.   La. R.S. 9:302 (repealed Jan. 1, 1991).

298.   "The divorce rate had its sharpest rise in the United States from 1962 to the 1980s, following a minor countertrend from 1950 to 1962 ... between 1968 and 1979, it rose to its highest point, 5.3 divorces per 1000 people." Carriere, supra note at 1721.

299.   Id. The additional grounds for immediate divorce based upon fault added by covenant marriage legislation are abandonment for one year and physical or sexual abuse of a spouse or child of the parties.

300.   Id.

301.   "The claim of a causal relationship between the divorce rate and divorce law, except in the extreme circumstance of a nationwide ban on divorce, is highly dubious." Id. Professor Carriere cites as authority for this proposition, Ira Ellman & Sharon Lohr, Marriage as a Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 1997 Ill. L. Rev. 719, 722-23. In Ellman & Lohr's article the authors concentrate upon the methodology utilized by Brinig & Crafton, infra, to prove that "no-fault" divorce raises the opportunity costs of divorce for victims of spousal abuse. Professor Ellman, who is also the Chief Reporter for the American Law Institute's project entitled "Principles of the Law of Family Dissolution," is an outspoken critic of a restoration of objective fault to the marital relationship. See Ellman's other articles cited in note supra.

Despite the claim that there is only an insignificant correlation between the enactment of "no-fault" divorce and divorce rates, at least two more recent articles demonstrate that there is such a correlation. See Margaret E. Brinig & F.H. Buckley, No-Fault Laws & At Fault People, 5 Int'l Rev. L. & Econ. (1998)(no-fault divorce significantly increased divorce rates because the costs of filing for divorce decreased; furthermore, higher divorce rates persisted in no-fault states); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 American Econ. Rev. 608 (June, 1998) (unilateral divorce raised divorce rates significantly; states with more strongly unilateral divorce laws had greater increases in the divorce rates): "The rise in the 1960's and 1970's looks especially stark compared to the law level in the 1950's, but it also was steeper than the century-long trend." Id. n.2. .

302.   Brinig & Buckley, supra note .

303.   Carriere, supra note at 1721, citing Kenneth J. Rigby, Alternative Dispute Resolution, 44 La. L. Rev. 1725-1725-26 (1984), citing in turn, C. Vetter, Child Custody: A New Direction, 9 (1982).

304.   See tables in Friedberg, supra note at 614, note b by Louisiana.

305.   Steve Nock, sociology professor at the University of Virginia, is the of the research team conducting the study entitled, "Is Louisiana's Covenant Marriage Law the Solution to America's Divorce Problem?" The team includes Laura Sanchez, sociology professor at Tulane University and Jim Wright also of Tulane University.

The Gallup Organization began conducting the telephone survey in the summer of 1998 after the questionnaire was designed by the team after consultation with an advisory committee larger in number and with focus groups.

Another study of the effect of grass-roots politics utilizing the covenant marriage legislation as an example is being conducted by Professor Katherine Rosier of Louisiana State University.

306.   "During the past twenty years, the United States has experienced a period of rapid change in the laws governing divorce. Touched off in 1969 by California's adoption of the nation's first divorce code that dispensed entirely with traditional fault-based divorce grounds and completed in 1985 when South Dakota added a no-fault provision to its list of fault based grounds, the concept that marriage failure is itself an adequate reasons for marital dissolution has been accepted by every state." Kay, supra note at 6.

307.   Gallagher, note supra.

Maggie Gallagher is, of course, not the only person drawing the connection. In the National Weekly Edition of The Washington Times, (June 29-July 5, 1998) at 11, the paper reported on a gathering at the Heritage Foundation:

"American society must revive the institution of marriage, said Heritage Foundation analyst Robert Rector.

The falling teen birthrates aren't as important as the leveling off of the `illegitimacy ratio,' or percent of births that occur out of wedlock each year, he said.

For three decades, the percent of births born to women outside wedlock has grown `remorselessly,' charting the `collapse of the American family,' he said.

`Women aged 18-25 still had the most babies,'he said. `They just didn't marry.'

* * * * *

To capitalize on this trend, society should promote marriage as well as programs that help couples build and retain healthy relationships and be good parents, said Mr. Rector."

See also Popenoe and Whitehead, Report on Cohabitation, note infra.

308.   See discussion in text at notes supra.

309.   See discussion in text at notes supra.

310.   La. R.S. 9:274: "A covenant marriage shall be governed by all of the provisions of Chapters 1 through 4 of Title IV of Book I of the Louisiana Civil Code and the provisions of Code Title IV of Code Book I of Title 9 of the Louisiana Revised Statutes of 1950."

Chapters 1-4 include: Chapter 1. Marriage. General Principles (La. Civ. Code arts. 86-93); Chapter 2. Nullity of Marriage (La. Civ. Code arts. 94-97); Chapter 3. Incidents and Effects of Marriage. (La. Civ. Code arts. 98-100); Chapter 4. Termination of Marriage (La. Civ. Code art. 101).

311.   La. Civ. Code art. 101: "Marriage terminates upon: The death of either spouse. divorce. A judicial declaration of its nullity when the marriage is relatively null...."

312.   See Favrot v. Barnes, supra at note .

313.   See Hurry v. Hurry, 144 La. 877, 81 So. 378 (1919); Mason v. Mason, 399 So.2d 1272 (La. App. 4th Cir. 1981); Stallings v. Stallings, 177 La. 488, 148 So. 687 (1933).

314.   La. Civ. Code art. 86. Marriage is a relationship although created by civil contract.

315.   See the commentary by Professor William Crawford accompanying Prec. Form 361, in PLEADINGS & JUDICIAL FORMS ANNO. at 25: "The `covenant' part of the covenant marriage, apart from the C.C. art. 87 requirements, is a form of contract in addition to the C.C. 87 contract of marriage and should not be viewed as a rule of public order.... If the covenant contract is not a rule of public order, then that contract may be mutually rescinded by the parties to the covenant. Furthermore, if the covenant were rescinded then the ordinary divorce procedures but not separation, would be available to the parties...." (Emphasis added.) Such a conclusion is not consistent with the law of marriage or the provisions of the covenant marriage legislation.

316.   La. Civ. Code art. 1983.

317.   La. R.S. 9:273 A (2)(a). Emphasis added. See also La. R.S. 9:273 A (2)(b). To the same effect for already married couples, see La. R.S. 9:275 C.

318.   For a discussion of issues of interstate jurisdiction and conflict of laws, see discussion in text at note supra. These issues arise in the context of migratory divorce, where one spouse to a "covenant" marriage in either Louisiana or Arizona travels to another state and seeks a divorce under the law of the state of the spouse's new domicile.

The author addresses the issues of conflict of laws as relates to the status of the covenant couple and those provisions of a covenant marriage that are contractual in greater depth in a forthcoming article to be published in Creighton L. Rev. in 1999.

For a discussion of issues of migratory divorce, see Carriere, supra note at .

See also comment (d) to La. Civ. Code art. 3522: "... Thus, to equate jurisdiction with choice of law with regard to that issue [right to divorce], as is done in Article 3521, seems to be not only acceptable but also efficient...."

319.   La. Code Civ. P. art. 10 A. (7) (divorce); La. R.S. 9:308 (separation from bed and board). See also La. Code Civ. P. art. 3941 (venue for divorce); La. R.S. 9:308 B (2).

320.   La. R.S. 9:308 B (1)(a).

321.   La. Code Civ. P. art. 10 A (7). See also id. art. 10B.

322.   La. R.S. 9:308 which narrowly confers jurisdiction to Louisiana to render a separation in a covenant marriage bears a striking resemblance to the language of the Code of Civil Procedure prior to its amendment in 1990.

323.   La. R.S. 9:308 B (1)(b).

324.   La. Civ. Code art. 142 (repealed 1990).

325.   This issue as well as other conflict of laws issues will be addressed in the author's article to be published in Creighton L. Rev., forthcoming in 1999. The effects of a Louisiana covenant marriage litigated in a Louisiana court will be determined by Louisiana law. It is far better for the effects of a covenant marriage to be determined in Louisiana by a Louisiana court more familiar with the legislation and the policies favoring its enactment.

326.   La. R.S. 13:3201 B. See discussion in text at notes supra.

327.   La. Civ. Code arts. 102 (2), (3).

328.   La. R.S. 9:307 A. (1), (2) (covenant marriage); La. Civ. Code art. 103 ("standard" marriage). The spouse in a "covenant" marriage may also seek a separation from bed and board, rather than a divorce, for the same reasons. La. R.S. 9:307 B. (1) (2). See discussion in text at notes supra.

329.   See Menge v. Menge, 491 So.2d 700 (La. App. 5th Cir. 1986); Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4th Cir. 1982). See also Bonura v. Bonura, 505 So.2d 143 (la. App. 4th Cir. 1987).

330.   La. Civ. Code art. 98 (spouses owe each other fidelity, support and assistance)

331.   See Katherine Shaw Spaht and William Marshall Shaw, Jr., The Strongest Presumption Challenged: Speculations on Warren v. Richard and Succession of Mitchell, 37 La. L. Rev. 59 (1976).

332.   La. Civ. Code art. 103.

333.   See, e.g., Kitchen v. Kitchen, 480 So.2d 495 (La. App. 5th Cir. 1985); Nickels v. Nickels, 347 So.2d 510 (La. App. 2d Cir. 1977).

334.   La. Civ. Code art. 138 (5) (repealed Jan. 1, 1991).

335.   La. Civ. Code art. 111. See, e.g., Brehm v. Brehm, 685 So.2d 377 (La. App. 5th Cir. 1996), writ denied, 688 So.2d 505 (La. 1997); Mercer v. Mercer, 671 So.2d 937 (La. App. 3d Cir. 1996); Harrington v. Montet, 634 So.2d 1302 (La. App. 3d Cir. 1994).

336.   La. R.S. 9:307 A. (3). See also La. R.S. 9:307 B. (3).

337.   Guillory v. Guillory, 626 So.2d 826 (La. App. 2d Cir. 1993).

338.   See, e.g., Von Bechman v. Von Bechman, 386 So.2d 910 (La. 1980); Bell v. Magee, 406 So.2d 717 (La. App. 4th Cir. 1981) and discussion in text at notes infra.

339.   See Gipson v. Gipson, 536 So.2d 586 (La. App. 1st Cir. 1988).   "Indeed, some decisions seem to require of the plaintiff only that he prove (1) the defendant's departure (2) without cause, and not (3) that he made any effort to urge the defendant to return to the common dwelling. See, e.g., Beck v. Beck, 341 So.2d 580 (La. App. 2d Cir. 1977). Indeed, it seems these decisions impose upon the defendant the duty to return at least before trial of the issue of abandonment begins, if not by the time of the initiation of the suit against him." Katherine Shaw Spaht, Louisiana Family Law Course by Robert Anthony Pascal 143-144 (4th ed. 1986).

340.   For example, Mercer v. Mercer, 671 So.2d 937 (La. App. 3d Cir. 1996). However, a strong argument can be made that the court should be reluctant in a "covenant" marriage to find that lawful cause includes an agreement to separate on the basis of conduct. See also Broussard v. Broussard, 462 So.2d 1386 (La. App. 3d Cir. 1985) (agreement was voluntary).

341.   See, e.g., Bruce v. Bruce, 696 So.2d 661 (La. App. 1st Cir. 1997); Brehm v. Brehm, 685 So.2d 377 (La. App. 5th Cir. 1996), writ denied 688 So.2d 505 (La. 1997); Caldwell v. Caldwell, 672 So.2d 944 (La. App. 5th Cir. 1996), writ denied, 679 So.2d 1351 (La. 1996); Harrington v. Montet, 634 So.2d 1302 (La. App. 3d Cir. 1994); Skannal v. Skannal, 631 So.2d 558 (La. App. 2d Cir. 1994), writ denied, 637 So.2d 1067 (La. 1994).

For an excellent discussion of the conflict in circuit courts of appeal in the early 1980s about the meaning of "lawful cause", see Durand v. Willis, 470 So.2d 947 (La. App. 3d Cir. 1985). Some cases appear to accept as proof of lawful cause conduct that is less serious than the conduct required to obtain a separation or divorce.

342.   The grounds for a separation from bed and board before January 1, 1991, are listed in note supra.

343.   See, e.g., Adams v. Adams, 389 So.2d 381 (La. 1980); Caldwell v. Caldwell, 672 So.2d 944 (La. App. 5th Cir. 1996), writ denied 679 So.2d 1351 (La. 1996).

See also comment (e) to La. Civ. Code art. 111.

344.   La. R.S. 9:307 A., B.

345.   La. Civ. Code art. 138 (repealed Jan. 1, 1991). See discussion in text at notes supra. In fact three of the fault grounds for separation before Jan. 1, 1991, which were omitted in the covenant marriage legislation, could be cruel treatment.

346.   Public defamation, attempting to kill the other spouse, and intentional nonsupport of a spouse in destitute or necessitous circumstances would in the ordinary case be considered cruel treatment. If such conduct rendered the life together insupportable, it would be grounds for a separation from bed and board in a "covenant" marriage. See La. R.S. 9:307 B. (6). If a spouse was charged with a felony and fled from justice, prior to January 1, 1991, the other spouse was entitled to a separation. Whether or not the circumstances of being charged with a felony and fleeing from justice falls under the rubric of cruel treatment will determine if all previously existing grounds for separation are incorporated in lawful cause for the purposes of abandonment in a "covenant" marriage.

347.   La. R.S. 9:307 A. (3); B. (3).

348.   See Katherine Shaw Spaht, Louisiana Family Law Course by Robert Anthony Pascal 143-144 (4th ed. 1986).

349.   Former La. Civ. Code art. 145 (repealed Jan. 1, 1991).

350.   Spaht, supra note at 143.

351.   Id.

352.   Samuel, supra note at : "But when a couple has voluntarily chosen a strict regime of divorce after premarital counseling on the subject, there is no justification for the lawyer or judge to manipulate or allow manipulation of the law or evidence to effect a divorce for such a couple...."

See also Green v. Green, 567 So.2d 139 (La. App. 2d Cir. 1990).

353.   La. R.S. 9:308 D. See Chi v. Pang, 643 So.2d 411 (La. App. 3d Cir. 1994) (interpreting parallel La. R.S 9:291).

354.   La. R.S. 9:308 D.(covenant marriage); La. Civ. Code art. 105 ("standard" marriage).

355.   La. Civ. Code art. 113. See also La. Civ. Code art. 111.

356.   La. Civ. Code art. 113, comment (b): "... Generally, the same purpose was attributed to alimony pendente lite under former Civil Code Article 111 by the court in Arrendell v. Arrendell, 390 So.2d 927, 930 (La. App. 2d Cir. 1980): `(I)t is designed to preserve and continue the status quo insofar as maintenance and support are concerned. It relates to facts as they have existed during the time the parties were living together and as they actually exist at the time the litigation commences, not to future possibilities and capabilities.' ..."

357.   La. Civ. Code art. 105 ("standard" marriage); La. R.S. 9:308 D. ("covenant" marriage).

358.   La. R.S. 9:308 D.

359.   La. R.S. 9:371, 372. See La. Code Civ. P. arts. 3944, 3604 for examples of the special nature of this injunctive relief.

Nothing precludes a spouse from seeking general injunctive relief under La. Code Civ. P. art. 3601, or protective orders under La. R.S. 46:2136.

360.   La. R.S. 9:366: "All separation, divorce, child custody, and child visitation orders and judgments in family violence cases shall contain an injunction as defined in R.S. 9:362. Any violation of the injunction, if proved by the appropriate standard, shall be punished as contempt of court, and shall result in a termination of all court ordered child visitation." Emphasis added.

For the definition of family violence, see La. R.S. 9:362 (3).

361.   La. R.S. 9:374.

362.   La. R.S. 9:373.

363.   La. Civ. Code art. 2374 D.: "When the spouses have lived separate and apart continuously for a period of six months, a judgment decreeing separation of property shall be granted on the petition of either spouse." Id. art. 2356: "The legal regime of community property is terminated by...judgment of ... separation of property...."

This remedy assumes, of course, that other grounds for separation of property do not exist, such as mismanagement of community property. See La. Civ. Code art. 2374 A.

364.   La. Civ. Code art. 2356.

365.   The term clearly includes stepchildren of the spouse who is guilty of physical or sexual abuse. Compare Ariz. Stat. 25-903 (4) (1998), which makes physical or sexual abuse of any child or relative of either spouse permanently living in the matrimonial domicile grounds for divorce in a covenant marriage.

366.   La. R.S. 9:307 A. (4). See also the relaxation of grounds for divorce after legal separation when there are minor children of the marriage if abuse of a child was the basis for the legal separation (La. R.S. 9:307 B. (4)). La. R.S. 9:307 A. (6)(b) reduces the period of time in such case from one year and six months to one year.

367.   See La. R.S. 9:361 and La. R.S. 46:2121 and 2131 as expressions by the legislature of the condemnation of such conduct within the marital relationship or at its termination. La. R.S. 9:361 was enacted in 1992. ( 1992 La. Acts, No. 1091).

368.   La. Civ. Code arts. 102, 103 (1). Even Professor Carriere in a footnote in her article, note supra at 1714 n. 80 states: "It is difficult to understand the logic by which assigning blame to a party dissatisfied with her or his marriage is viewed as a means of preventing marital breakdown; it seems that it would supply an added source of grievance and an added impetus to end the marriage. Of course, if the blame is deserved, as in the case of a battering spouse, then such a result ... could benefit both the victim and society." Emphasis added.

369.   Proof of physical or sexual abuse in a civil proceeding for divorce need be by a simple preponderance of the evidence, not beyond a reasonable doubt as required in a criminal prosecution of the abuser. For a recent example, see Thibodeaux v. Thibodeaux, 668 So.2d 1269 (La. App. 5th Cir. 1996) (for purposes of alimony, court found husband had slapped wife despite fact he was acquitted on assault charge).

370.   La. R.S. 9:362 (3).

371.   Id.: " `Family violence includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children...."

372.   La. R.S. 9:362 (3).

373.   See Bearden v. Bearden, 645 So.2d 1189 (La. App. 2d Cir. 1994) (daughter described to mother that father had touched her and demonstrated by placing her finger inside both her vaginal and anal regions); State Dept. of Social Services in the Interest of A.D., C.D., & D.D., 628 So.2d 1288 (La. App. 3d Cir. 1993)(one daughter admitted to "vague, nonspecific sexual contact" but the other indicated to the court that her father touched her in the vaginal area).

374.   Kiefer v. Yellon, 646 So.2d 1073 (La. App. 5th Cir. 1994) (conduct also included father's rubbing his penis on child until ejaculation).

375.   Id.

376.   Michelli v. Michelli, 655 So.2d 1342 (La. App. 1st Cir. 1995).

377.   Id. See also Morrison v. Morrison, 699 So.2d 1124 (La. App. 1st Cir. 1997).

378.   Id.

379.   Id. See also Morrison v. Morrison, 699 So.2d 1124 (La. App. 1st Cir. 1997).

380.   Id.

381.   Morrison v. Morrison, 699 So.2d 1124 (La. App. 1st Cir. 1997).

382.   Evans v. Terrell, 665 So.2d 648 (La. App. 2d Cir. 1995) (there was also a burn mark on the back of the child's hand).

383.   See Schneider, supra note ; Brinig & Buckley, supra note ; Brinig & Crafton, supra note .

384.   See Fagan, supra note .

385.   See Gallagher, note supra; Popenoe and Whitehead, note supra.

See also Margaret F. Brinig, Economics, Law and Covenant Marriage, 16 Gender Issues 4 (1998) (the precommitment made in Louisiana covenant marriage would lead, like other bonding devices to better later choices); Elizabeth Scott and Robert Scott, , Va. L. Rev. (forthcoming, 1998) (covenant marriage should lead to greater investment in the sorts of things that make marriages better but that are bad investments in the less permanent world of no-fault).

386.   Ariz. Stats. 25-903 (4) (1998) (emotional abuse).

387.   La. R.S. 9:307 B. (6).

388.   La. Civ. Code art. 138 (3) (repealed Jan. 1, 1991).

389.   Id.: "On account of 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."

390.   One such excellent survey although now dated was Pierson, The Degree of Cruelty Necessary to Justify Separation from Bed and Board in Louisiana, 16 La. L. Rev. 533 (1956), which considered the meaning of the terms for purposes of the ground for separation from bed and board.

Cases are still decided interpreting the terms for purposes of determining fault under La. Civ. Code art. 111 (final periodic spousal support).

391.   Wagner v. Wagner, 686 So.2d 946 (La. App. 1996), writ denied 692 So.2d 394, 399 (1997); Shenk v. Shenk, 573 So.2d 1000 (La. App. 4th Cir. 1990); Phillpott v. Phillpott, 285 So.2d 570 (La. App. 4th Cir. 1973), writ refused 288 So.2d 643 (La. 1974).

392.   See Von Bechman v. Von Bechman, 386 So.2d 910 (La. 1980); Mudd v. Mudd, 206 La. 1055, 20 So.2d 311 (1945).

393.   See Lamb v. Lamb, 460 So.2d 634 (La. App. 3d Cir. 1984), writ denied 462 So.2d 1249 (because of couple's financial ability to afford a maid, wife's ineptitude in cleaning and preparing meals not fault).

394.   Daigle v. Breaux, 477 So.2d 798 (La. App. 5th Cir. 1985).

395.   Minella v. Minella, 713 So.2d 816 (La. App. 5th Cir. 1998); Roussel v. Roussel, 688 So.2d 160 (La. App. 5th Cir. 1997); Wagner v. Wagner, 686 So.2d 946 (La. App. 4th Cir. 1996), writ denied 692 So.2d 394, 399 (1997); Guillory v. Guillory, 626 So.2d 826 (La. App. 2d Cir. 1993).

396.   Allen v. Allen, 648 So.2d 359 (La. 1994), on remand, 653 So.2d 169 (La. App. 2d Cir. 1995) (proof insufficient because of mitigating circumstances, reversed and remanded); Guillory v. Guillory, 626 So.2d 826 (La. App. 2d Cir. 1993). But see Butts v. Butts, 426 So.2d 302 (La. App. Cir. 1983).

397.   See, e.g., Simon v. Simon, 696 So.2d 68 (La. App. 5th Cir. 1997).

398.   Michelli v. Michelli, 655 So.2d 1342 (La. App. 1st Cir. 1995); Roland v. Roland, 519 So.2d 1177 (La. App. 1st Cir. 1987). There may be a question as to whether a gambling addiction is habitual intemperance or cruel treatment. See Olivier v. Abunza, 266 La. 456, 76 So.2d 528 (1955).

399.   Crifasi v. Crifasi, 650 So.2d 347 (La. App. 4th Cir. 1995).

400.   See, e.g., Spansenberg v. Carter, 151 La. 1038, 92 So. 673 (1922; Sullivan v. Sullivan, 215 So.2d 198 (La. App. 3d Cir. 1968).

401.   Robert Anthony Pascal, LOUISIANA FAMILY LAW COURSE 142 (4th ed. by Katherine Shaw Spaht 1986).

402.   Id.

403.   See Samuel, supra note at n.20.

404.   The grounds for divorce in a covenant marriage are almost identical to those for a separation from bed and board. The only difference is that habitual intemperate or cruel treatment that renders the common life together insupportable is only a ground for legal separation. See discussion in text at notes supra.

405.   La. Civ. Code art. 113: "..., the court may award a party an interim periodic allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage. The obligation to pay interim periodic support shall not extend beyond one hundred eighty days from the rendition of the judgment of divorce, except for good cause shown." Emphasis added.

The negative inference is that the interim allowance terminates with divorce unless it is extended, which is consistent with the predecessor to Article 113, Article 148 (repealed Jan. 1, 1998). See Wascom v. Wascom, 691 So.2d 678 (La. 1997). Article 148 permitted a recipient to receive alimony pendente lite subject to the criteria in that article until a divorce judgment was rendered. The criteria in Article 148 (repealed Jan. 1, 1998) and Article 113 permit the award of a larger sum than the application of the criteria for alimony, now final spousal support, after divorce. See La. Civ. Code arts. 111, 112.

406.   La. R.S. 9:307 A. (6) (b). See discussion in text at notes supra.

407.   Accurately described in the legislation as one year and six months "from the date the judgment of separation from bed and board was signed." La. R.S. 9:307 A (6)(a). To the same effect, see identical phraseology in La. R.S. 9:307 A (6) (b).

408.   La. R.S. 9:307 A (6) (b).

409.   La. R.S. 9:307 A. (6) (a).

410.   See authorities cited in note supra.

411.   "Proponents of covenant marriage hope that the two year period will be long enough to effect a reconciliation by giving counseling an opportunity to succeed, or if reconciliation is impossible, will be long enough to force the spouse who wants an immediate divorce to offer an adequate financial inducement to the innocent spouse to sue for an immediate divorce should the innocent spouse have grounds for such a divorce...." Samuel, supra note at .

412.   "... a child of the marriage or a child of one of the spouses...." La. R.S. 9:307 A (6)(b).

413.   Id.

414.   La. R.S. 9:307 B (4).

415.   The defense of reconciliation should be available to covenant spouses although the defense does not appear in a form identical to La. Civ. Code art. 104: "The cause of action for divorce is extinguished by the reconciliation of the parties." Furthermore, Article 104 is excluded from the provisions of La. R.S. 9:274 that provides a covenant marriage shall be governed by certain chapters of the Civil Code Title IV which apply to "standard" marriages. Article 104 appears in Title V of Book I. Nonetheless, reconciliation is mentioned specifically in La. R.S. 9:307 A.(5) (living separate and apart for two years without reconciliation); La. R.S. 9:307 A. (6) (a) and (b) (one year or one year and six months living separate and apart without reconciliation after a judgment of separation); La. R.S. 9:307 B. (5) (same as A. (5)); La. R.S. 9:309 A. (2) (status of judicially separated covenant spouses until reconciliation); La. R.S. 9:309 B. (2) (community property regime reestablished upon reconciliation). Living separate and apart because the fault of one spouse has offended the other spouse is analogous to living separate and apart because of a judgment of separation from bed and board. La. R.S. 9:309 A. (2). Consistently with the spirit of a covenant marriage reflected in all of the statutory provisions governing its creation and existence, the offended spouse may terminate the marriage for reasons of fault on the part of the other spouse. If the spouse is no longer offended because he or she has forgiven the offense by the other, reconciliation should be a defense to an action to terminate a covenant marriage for fault.

The defense of excuse due to mental or emotional illness is probably available, although the defense itself created by the judiciary at the height of Americans' acceptance of psychological excuses for offensive behavior ought to be reexamined. See Brehm v. Brehm, 685 So.2d 377 (La. App. 5th Cir. 1996), writ denied 688 So.2d 505 (1997); Doane v. Benenate, 671 So.2d 523 (La. App. 4th Cir. 1996).

416.   La. R.S. 9:272 A. Emphasis added.

417.   For a related discussion, see text at notes supra.

418.   La. R.S. 9:307 A. (5).

419.   The obligations of the marital covenant include fidelity, support and assistance. La. Civ. Code art. 98. Living separate and apart does not expressly violate the obligations of fidelity, support and assistance. In fact, comment (f) to Article 98 addresses the spouses obligation to live together: "Under this revision the spouses are free to live together as necessary to fulfill their obligation mutually to support, assist, and be faithful to each other...."

Living separate and apart as a grounds for divorce contemplates an agreement by the spouses to live apart, or two spouses guilty of a total breach of marital obligations, so that neither or both can be accused of violating the obligation contained in Article 98, such as the positive obligation of fidelity (to share one's sexual potential with the other) or the obligation of assistance (to assist each other in cooperative endeavors of married life). Living separate and apart is to be distinguished from abandonment which does involve a breach of the obligation to live together so as to fulfill the obligations of fidelity and assistance.

420.   La. R.S. 9:307 A.

421.   See Carriere, note supra at 1715 n.91; Samuel, note supra at .

422.   Habitual intemperance and cruel treatment that renders the common life together insupportable. La. R.S. 9:307 B. (6).

423.   La. R.S. 9:307 A. (1): "Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of...:

"(1) The other spouse has committed adultery...."

See also La. R.S. 9:307 A (2)-(4) and 9:307 B. (1)-(4), (5).

424.   "For instances in which the doctrine of recrimination was applied, see J.F.C. v. M.E., 6 Rob. 135 (1843); Maranto v. Maranto, 297 So.2d 74 (La. App. 1st Cir. 1974); and Schillaci v. Schillaci, 310 So.2d 179 (La. App. 4th Cir. 1975)." Katherine S. Spaht, Family Law in Louisiana, 203 (2d ed. 1998).

See also Wheelahan v. Wheelahan, 557 So.2d 1046 (La. App. 4th Cir. 1990), writ denied 559 So.2d 1379.

425.   Katherine S. Spaht, Family Law in Louisiana 203 (2d ed. 1998).

426.   The most obvious example of a proper invocation of comparative rectitude is when one spouse has been guilty of habitual intemperance or cruel treatment which are only grounds for legal separation (see discussion in text at notes supra) and the other, guilty of grounds for divorce, such as physical or sexual abuse or adultery.

427.   "If the offenses were of entirely different orders of degrees of seriousness, the spouse guilty of the lesser fault was entitled to relief by invoking the principle of comparative rectitude. Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952). The obvious purpose of comparative rectitude was to ameliorate the effects of the application of the doctrine of recrimination." Id.

428.   La. Civ. Code art. 141 (repealed Jan. 1, 1991). "In 1976, the Legislature enacted Louisiana Civil Code art. 141, which provided that a separation from bed and board `shall be granted although both spouses are mutually at fault in causing the separation.' ..." Katherine S. Spaht, Family Law in Louisiana, 203 (2d ed. 1998).

429.   Id. "Subsequently, in Thomason v. Thomason, 355 So.2d 908 (La. 1978), the court abrogated the doctrine of recrimination in divorce suits."

430.   La. Civ. Code arts. 2315, 2324.

431.   See House Bill No. 2053 (1997 Reg. Sess.), introduced on recommendation of the Louisiana State Law Institute. The bill as introduced "recommended that fulat of the claimant spouse not be a bar to final periodic support, but that the comparative marital misconduct, if any, of both parties be one of the factors that a court could consider in determining the entitlement, amount, and duration of final spousal support." Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L. Rev. 887, 893 (1998). The House Committee on Civil Law and Procedure rejected that provision and adopted an amendment that eliminated the language from the bill. The series of amendments replaced "comparative fault" with the familiar statutory formulation of fault as an absolute bar to a claim for final spousal support (alimony after divorce). See La. Civ. Code art. 111.

For a description of the spousal support revisions, see the excellent commentary by Ribgy, Id.

432.   The bill as introduced contained only two grounds for divorce and one ground for legal separation. House Bill No. 756. As anyone with legislative or negotiating experience knows the bill as introduced must reflect the strongest position of the proponent so that there is room to negotiate over amendments. This observation seems so elementary as not to deserve mention, however, critics, particularly academic critics, have concentrated upon the harshness of the bill as introduced. See authorities cited in note supra.

433.   See discussion in text at notes supra which explains in some detail the interpretation of La. R.S. 9:307 A. The section begins with "[n]otwithstanding any other law to the contrary" which necessarily includes La. R.S. 9:272A and also distinguishes the statutory language to describe who is entitled to a divorce for the first four grounds and to a divorce for the fifth and sixth ground.

434.   Before the bill returned to the House for concurrence in the Senate amendments it was discovered that the Senate Committee amendments had not been properly incorporated within the language of the bill, a clerical mistake. The bill passed by the Senate floor reflected that grounds for divorce included habitual intemperance and cruel treatment. Because the inclusion of such grounds threatened to undercut the basic intention of the legislation (see Carriere, note supra at 1725-26), the House rejected the Senate amendments and the bill was sent to Conference Committee. In the Conference Committee a compromise was reached: habitual intemperance and cruel treatment would be grounds for legal separation only, but living separate and apart for two, rather than three, years would be grounds for divorce.

435.   La. Civ. Code art. 103 (1).

436.   See, e.g., Adams v. Adams, 408 So.2d 1322 (La. 1982); Otis v. Bahan, 209 La. 1082, 26 So.2d 146 (1946); Leveque v. Borns, 174 La. 919, 142 So. 126 (1932).

437.   Carriere, supra note at 1718-24.

438.   La. R.S. 9:307 B. (5).

439.   La. Civ. Code art. 113.

440.   La. Civ. Code arts. 111, 112.

441.   La. Civ. Code art. 113, comment (b): "The purpose of an interim allowance is to maintain the status quo without unnecessary economic dislocation until a determination of the amount of final support can be made and until a period of time for adjustment elapses that does not exceed, as a general rule, one hundred eighty days after the judgment of divorce...." See also Arrendell v. Arrendell, 390 So.2d 927 (La. App. 2d Cir. 1980).

442.   La. Civ. Code art. 113: "... The obligation to pay interim periodic support shall not extend beyond one hundred eighty days from the rendition of judgment of divorce, except for good cause shown." See also comment (e).

443.   In many cases of "covenant" marriage the interim period will be marked by living separate and apart rather than the period that elapses after suit for divorce is filed. See La. R.S. 9:308A, D. (covenant marriage). See also La. Civ. Code art. 105; La. R.S. 9:291 (standard marriage).

444.   La. Civ. Code art. 111. See discussion in text at note supra.

La. Civ. Code art. 111, comment (c): "A condition for the award of final periodic support is the claimant's freedom of fault prior to the filing of a proceeding to terminate the marriage. Fault continues to mean misconduct the [that] rises to the level of one of the previously existing fault grounds for legal separation or divorce.... However, unlike prior law this Article is explicit that the fault of the claimant that precludes an award of spousal support must have occurred prior to the filing of the `proceeding to terminate the marriage'--for example, prior to the institution of an action for divorce."

445.   See Samuel, supra note at n.20.

446.   See, e.g., Frederic v. Frederic, 302 So.2d 903 (La. 1974); Fulmer v. Fulmer, 301 So.2d 622 (La. 1974); Nethken v. Nethken, 307 So.2d 563 (La. 1975). See also Bruner v. Bruner, 364 So.2d 1015 (La. 1978).

447.   La. Civ. Code art. 112. See also id. art. 111.

448.   Id.

449.   491 So.2d 5 (La. 1986).

450.   Id. at 8.

451.   See discussion in text at notes supra.

452.   See discussion in text at notes .

453.   The discussion in the text at notes supra argues for the resurrection of the defense of recrimination without the corollary of comparative rectitude so that consistently with the definition of a covenant marriage (La. R.S. 9:272) only the non-breaching party could obtain a termination of the marriage.

454.   The covenant spouse against whom the judgment of separation was rendered would only be permitted to introduce evidence of the claimant's fault committed between the judgment of separation and filing suit for divorce.

455.   La. Civ. Code art. 134 (6).

456.   John Witte, Jr., From Sacrament to Contract: Marriage, Religion and Law in the Western Tradition, 217-18 (1997).

457.   La. R.S. 9:273 A and B. See discussion in text at notes supra.

458.   Id. 273 A. (1).

459.   Id. §307.

460.   Gallagher, supra note at 265: "To dare to pledge our whole selves to a single love is the most remarkable thing most of us will ever do. With the abolition of marriage that last possibility for heroism has been taken from us."

461.   "Louisianans, at least, can no longer ignore the dissonance between the marriage of our cultural imagination and marriage as it actually exists; they have a choice. It may be that, as Dr. Peter Kramer, clinical professor psychiatry at Brown University, opines: `contrary to claims on behalf of Louisiana's Covenant Marriage, it is out of touch with our traditional values: self-expression, self-fulfillment, self-reliance.' As Christopher Wolfe has confirmed, `[t]he ideal of autonomy, an autonomy so broad as to preclude fixed, permanent, lifelong commitments, is the foundation of our contemporary marriage laws. It is a substantive moral ideal.' " Katherine Shaw Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 12 BYU J. P. L. 277 (1998).

462.   Robert Rowthorn, Marriage and Trust: Some Lessons from Economics, Cambridge J. of Econ., (forthcoming, 1998) (on file with author).