LOUISIANA'S COVENANT MARRIAGE: SOCIAL COMMENTARY AND LEGAL
Marriage cultivates virtue by offering love, care, and nurture to its members, and by holding out a model of charity, education, and sacrifice to the broader community. Marriage enhances the life of a man and a woman by providing them with a community of caring and sharing, of stability and support, of nurture and welfare.... Marriage enhances the life of the child by providing it with a chrysalis of nurture and love, with a highly individualized form of socialization and education. It might take a whole village to raise a child properly, but it takes a marriage to make one.... [For] [t]he procreation of children can be among the most important Words we have to utter. (1)
I. Introduction: "For the Sake of the Children"
To preserve and to nurture those most important Words, our children, (2) motivated the covenant marriage legislation, (3) legislation that permits a husband and a wife to obligate themselves legally to a stronger, more enduring union. (4) The covenant marriage and its legal consequences more closely resembles the promises made by each spouse in the wedding ceremony. (5) The children of the marriage are third party beneficiaries of the promises made by their parents (6) and benefit in both tangible and intangible ways--economically, (7) physically, (8) psychologically, and emotionally. (9) Judith Wallerstein's unique twenty-five year longitudinal study of children of divorce establishes what the average citizen intuited before the post-modern era:
Despite criticism of the size and quality of her sample of children, (11) her findings have been affirmed by a myriad of other larger studies. (12) A survey of Louisiana appellate court opinions on issues of succession law over the last fifteen years reveals that the pain and anger experienced by children of divorce (referred to in those opinions as children of a "former marriage") outlive the parent. (13) A Generation at Risk, written by Paul Amato and Alan Booth and published in 1997, documents the two left-of-center authors' extensive research findings about the effect of divorce on children and contains the compelling statement: "Spending one-third of one's life living in a marriage that is less than satisfactory in order to benefit children--children that parents elected to bring into the world--is not an unreasonable expectation." (14) Dr. Wade E. Horn, reviewing the Amato and Booth findings and two other studies, recently commented in a newspaper article: "[C]onventional wisdom tells us that it's better for the children if their parents divorce than if they stay in an unhappy marriage.... Only trouble is, both conventional wisdom and the experts, it turns out, are wrong. Three new studies point to divorce--not marital conflict--as the problem." (15) As Barbara Dafoe Whitehead so eloquently summarizes:
As poignant as these findings and conclusions, social scientists are increasingly convinced that the weakening (17) and virtual collapse of marriage explain the exploding phenomena of cohabitation. Maggie Gallagher in her book The Abolition of Marriage: How We Destroy Lasting Love persuasively argues that there is an indisputable connection between the weak institution we now call marriage, which is defined in no small part by divorce law, (18) and the irregular living arrangement known as cohabitation.
David Popenoe and Barbara Dafoe Whitehead, two names well-known among social scientists and in the popular culture, (20) have completed a massive study of countries throughout the West and conclude that in countries where marriage as an institution is weakest, cohabitation is the most widespread. (21) In other words, if marriage is a weak institution, what's the point of it, a conclusion that has so alarmed Popenoe and Whitehead that they have founded "The Marriage Project" at Rutgers University. Not surprisingly, broken families (22) lead to families that never form.
If a father and a mother committed to each other through lifelong marriage (23) represents the ideal environment for the rearing of responsible, prosperous, and well-adjusted citizens, (24) can the law restore and strengthen the institution of marriage? (25) Law played an indispensable role in the near-destruction of marriage, (26) so surely it can and must in light of its complicity, contribute to the rehabilitation of marriage--for the sake of the children. How best to restore the ideal of eternal, self-sacrificial love is the question. Although the debate is far from over even in Louisiana, (27) covenant marriage legislation, first introduced in Florida in 1990 (28) and now the law in both Louisiana and Arizona, (29) answers the question by making the ideal a matter of choice--what "communitarians" refer to as "opportuning virtue." (30) In addition to the obvious virtues cultivated by marriage, the selection of covenant marriage encourages the virtue of keeping one's promises, which ironically is required in simple contractual relationships with strangers. Furthermore, because a covenant marriage is a choice made by the couple, the legislation offers the possibility of eventually changing the culture. (31) To promote the selection of a stronger marital commitment proponents of covenant marriage must convince each couple of the desirability of covenant marriage which requires intensive missionary work, winning converts one couple at a time.
This article explores how covenant marriage legislation attempts to strengthen marriage through the legal commitment of "covenant couples." By their example and public discussion of the optional covenant marriage, (32) the cultural perception of marriage could gradually shift to the point of acceptance of a new, yet at the same time very old, paradigm (33)--lifelong marriage. Then the author discusses in detail the provisions of the covenant marriage legislation and the legal implications of its enactment on Louisiana divorce law. In the process, the author will address some of the criticisms of the covenant marriage legislation published elsewhere. (34) It is remarkable in some cases--the American Civil Liberties Union (35)--and predictable in others--family law attorneys, (36) feminists, (37) and other liberal groups (38)--who opposes the legislation and why they oppose a mere optional form of marriage, entirely voluntary and chosen by the couple.
II. Immediate Objectives of the Covenant Marriage Legislation and How the Legislation Accomplishes Those Objectives
As much as we honor the institution of marriage, it would seem that we should equally condemn divorce, for divorce is the enemy of marriage.... (39) [D]ivorce inflicts the ultimate damage on marriage.... (40)
Divorce, it is said, shatters the standing of marriage. It is dangerous to make the conjugal bond too fragile. Marriages are contracted with a light heart, if the couple feel that there is a way out.... The objection [that divorce shatters the standing of marriage] is decisive when divorce is permitted, at pleasure, as it was the divorce of the Romans. (41)
The first and foremost objective of the covenant marriage legislation is to strengthen the institution of marriage, principally for the sake of the children. The legislation proposes to accomplish that objective by (1) mandatory pre-marital counseling which stresses the seriousness of marriage and the expectation that the couple's marriage will be lifelong; (42) (2) a legally binding agreement (43) in the Declaration of Intent that if difficulties arise during the marriage the spouses will take all "reasonable steps to preserve the marriage, including marriage counseling;" (44) and (3) limited grounds for divorce making termination of the marriage depend on either misconduct by a spouse within the marital relationship (45) which society collectively condemns, or a lengthy waiting period of two years living separate and apart. (46) Each of these three legal mechanisms in combination, it is hoped, will achieve the laudable purpose of strengthening marriage; and each will be addressed separately in the sections of this article that follow.
Another less obvious objective of the legislation, which is reflected in who may perform the mandatory pre-marital counseling, is to revitalize and reinvigorate the "community" known as the church. Reinvigoration results from inviting religion back "into the public square" (47) for the purpose of performing a function for which religion is uniquely qualified--preserving marriages. A minister, (48) priest, (49) or rabbi (50) may perform the required pre-marital counseling, just as any of them may perform the ceremony. (51) Likewise, as in the case of performance of the ceremony, (52) the legislation provides a secular alternative who may provide the counseling, a marriage counselor. (53) Preventing bad marriages or identifying potential areas of disagreement through serious pre-marital counseling requires intensive one-on-one attention. Furthermore, the work of preserving marriages through counseling when difficulties arise in the marriage necessitates the same time-consuming personal investment which a minister, priest or rabbi can perform well, not only by virtue of the commitment of his time but also by virtue of his moral authority. The religious cleric communicates in both types of counseling sessions the religious view of marriage and the "community's" (54) expectation that the couple will devote serious effort to preserving their marriage.
Because the legislation "invites" religion back to the public square, the legislation is careful not to "dictate" the content of the counseling beyond its basic contours. (55) Furthermore, the legislature refused to dictate a fixed amount of time for the pre-marital counseling, the reason being that to do so would be unnecessarily intrusive. Many religious denominations already have extensive pre-marital counseling programs in place, such as the Catholic Church's Pre-Canaa, the Prep Course, or the Prepare Inventory. The latter two pre-marital counseling programs are attracting increased attention, particularly in those communities which have adopted a "Community Marriage Policy," (56) such as Modesta, California; (57) Austin, Texas; and Grand Rapids, Michigan. (58) With the creation of the nascent national organization, Marriage Savers, (59) such serious, extensive pre-marital counseling programs will increasingly be initiated by religious denominations. Thus, criticism of the pre-marital counseling component of the legislation as "shallow" (60) and lacking in rigorous content and time specifications fails to recognize that the "omission" was calculated to avoid serious objections from those issued an invitation to assist in preserving marriages.
Finally, the covenant marriage legislation seeks to restore some protection and some power to the "innocent" spouse who has kept her promises and desires to preserve the marriage. (61) Unilateral no-fault divorce deprived the "innocent" spouse who desired a continuation of the marriage of any defense to an action for divorce by the spouse who "broke up" the family. (62) Even Herma Hill Kay, Dean of the law school at the University of California, Berkeley, who continues to be an advocate of no-fault divorce law, (63) observed that unilateral no-fault divorce is, "closer to desertion than to mutual separation." (64) By lengthening the period of time for a no-fault divorce by one and one-half years, the covenant marriage legislation empowers the "innocent" spouse by bestowing upon her the exclusive right to a divorce for a two-year period. (65)
The "innocent" spouse's bargaining power (66) can be exercised to insist upon serious counseling in an effort to preserve the marriage, or barring counseling's success, to demand financial advantages for herself (67) or for her children. (68) Since the right to receive an interim allowance (alimony pendente lite (69)) exists at least until divorce (70) and an interim allowance is ordinarily a larger sum than final spousal support, (71) the "innocent" spouse who receives such an allowance enhances her already considerable bargaining power during the lengthy two-year period. In addition to the interim allowance, the "innocent" spouse may also have a claim for damages should the other spouse refuse to comply with his obligation to take all reasonable steps to preserve the marriage. (72) The other spouse who by his own fault has "broken up" the family unit must wait two years to seek his own divorce. While he waits, he will be paying a significantly higher sum in spousal support than he will pay after the divorce. He also may be obligated to pay damages for breach of his contract to seek counseling. In addition if he wants to remarry, he will be the especially vulnerable target of this shift in divorce law policy. (73) Even one critic (74) of the covenant marriage legislation acknowledges these advantages, but only in a footnote:
Both of these "advantages" outweigh critics' concern for increasing acrimony in divorce, (76) which has never been eliminated in Louisiana (77) and now takes the truly venal form of allegations of sexual abuse of a child in a custody dispute. (78) Isn't it preferable for one spouse to accuse the other of abandonment for one year, or even of adultery, than of sexually abusing their child, which necessitates a physician's intimate examination of the child? Acrimony on account of divorce can never be eliminated unless both parties are in agreement that their relationship is "dead," because otherwise one spouse has been guilty of a violation of trust or a loss of romantic interest in the context of the most intimate of all human relationships. Furthermore, even if the two spouses agree that their relationship is "dead", what about the interest of the children, most of whom desire that their parents remain together, if their interest conflicts with the desires of the two parents?
Restoration of "moral discourse" to divorce law (79) troubles most critics of the covenant marriage law more than any other aspect of the legislation. (80) The "moral discourse" consists of society's collective condemnation of certain, selected conduct within the marital relationship. Returning to objective moral judgments about a spouse's conduct threatens the discredited mantra of libertarians and others that "you can't legislate morals." (81) Of course, "you" can. Congress and legislatures do it every day. Only when the morals to be legislated have the potential of impeding the affected person's "liberty" (82) to leave his family when he so chooses do we hear objections. Interestingly, the same objection is never made if the legislation concerns elements of contract law (83)--for example, assigning blame for the breach of contract, (84) requiring all contracts to be performed in "good faith," (85) and assessing damages for breach of contract based upon whether the party breached the contract in good faith (86) or bad faith. (87) Principles of contract and tort law involve moral judgments which most often apply in the context of a relationship between strangers. Why hesitate to make a moral judgment with spouses who have been married for thirty years and have three children?
The return to broader notions of objective fault in divorce and "slowing down" the divorcing process represent, as a general trend, the first time in at least two hundred years in any Western country that divorce law has made divorce more difficult rather than easier. (88) Therein lies the historical and cultural significance of the covenant marriage legislation and explains its national and international notoriety. Therein lies the dual threat to notions of "libertinism" disguised in language of "liberty" and to notions of necessary tolerance of pluralistic behavior, what used to be considered anti-social behavior. (89) Therein lies the perceived threat to many divorce lawyers who recognize that covenant marriage could herald the return to the not so good, "good, old days." In many cases, the "good, old days" meant difficult work gathering evidence of fault in preparation for a trial that might not result in the divorce the client desired, (90) a reduced profit margin per case because clients simply could not pay the costs of extensive litigation, (91) and, potentially, diminished professional stature because of the daily pursuit of the salacious. Despite expressed concern about the return to a practice of widespread perjury by covenant spouses who want a divorce, (92) there was never proof of such a widespread practice in Louisiana. (93) Of course, as to perjury the judiciary and the attorneys bear some responsibility. (94) Even though perjury should surely be condemned, the fraud upon the court did at least require cooperation of both spouses and precluded the current practice of legalized desertion by one spouse.
Permitting one spouse to effectively destroy a family unit of five persons (95) without good reason and without significant consequences has had a corrosive effect on our society. As evidence mounts of the social destruction in the wake of surging divorce rates and now surging cohabitation rates, responsible policy makers can no longer simply wring their hands in despair and helplessness. Action is required. Covenant marriage legislation, hopefully, is only the beginning of the resurgence of interest in and protection of the institution of marriage (96)--the foundation upon which the "family" is built.
Opponents of divorce law reform often counter legislative attempts to make divorce more difficult by urging more onerous requirements for marriage. Proponents of strengthening marriage typically offer pre-marital counseling as an educational (97) obstacle to a hasty, precipitous decision to marry. The most popular bill to strengthen marriage introduced by Michigan state representative Jesse Dahlman offered the incentive of a reduction in price for a marriage license to a couple who would submit to pre-marital counseling. (98) During the 1998 session the Florida Legislature passed an act that provides the same sort of incentive to submit to pre-marital counseling as Representative Dahlman's bill had. (99) For covenant couples pre-marital counseling is mandatory.
Mandatory pre-marital counseling insures not only that an "educational" obstacle to hasty marriage is erected, but also that two documents be executed and signed by the couple, the counselor, and a notary attesting to the fact that the counseling did occur. A covenant marriage, consistent with the legal understanding of covenant at common law, (100) represents the rough equivalent of an agreement that requires greater formality and limits defenses to the agreement that may be raised by the signatories. (101) Covenant: religious "overtones," (102) of course. (103) In his book, Covenant & Commitment, Max L. Stackhouse, opines:
Covenant marriage legislation responds to the opponents of divorce law reform by using mandatory pre-marital counseling and the execution of documents in the presence of a notary "to make marriage more difficult" and the commitment more serious.
A minister, (106) priest, (107) rabbi, (108) or other clergyman of a religious sect may perform the pre-marital counseling required for a covenant marriage, just as they may perform the marriage ceremony. (109) In matters of marriage in the United States, (110) religious figures have traditionally been authorized by the state to perform marriages which are entitled to recognition under secular law. There has never been a clear separation between church and state in matters of celebration of marriage. (111) Yet, both for performance of the ceremony or for pre-marital counseling prior to a covenant marriage, the Louisiana legislation offers a secular alternative. (112) The section of the Revised Statutes that describes the secular alternative to a clergyman uses the term marriage counselor. (113) The term is not defined in the covenant marriage legislation, nor elsewhere in the Revised Statutes where the term is used--for example, as a mediator in child custody disputes. (114) Even though the jurisprudence has yet to define marriage counselor, (115) the Louisiana statutes governing the licensing of professional counselors provide insight as to the qualifications for counselor. A "licensed professional counselor" renders "service to the public in the mental health counseling area." (116) Mental health counseling encompasses "assisting an individual or group, through the counseling relationship, to develop an understanding of personal problems, to define goals, and to plan actions...." (117) To be licensed as a professional counselor requires a minimum of three thousand hours of supervised experience during a minimum of two years of post-master's degree experience in professional mental health counseling; passage of a written, and possibly an oral, examination; a graduate degree "the substance of which is professional mental health counseling in content...." (118) As Professor Carriere accurately observes in her article in the Tulane Law Review, "the state places no restrictions on who may qualify as a `marriage counselor'; at present, Louisiana does not require one to have a license to assume that title." (119) In the footnote, she reports that the Louisiana Association for Marriage and Family Therapy "plans to introduce licensing legislation in the 1999 legislative session." (120)
The covenant marriage legislation imposes only minimal requirements for the content of the pre-marital counseling which include a discussion of: (1) the seriousness of marriage; (2) the intention of the couple that their marriage be lifelong; (3) the agreement of the couple that they will take "all reasonable steps to preserve the marriage, including marriage counseling"; and (4) the limited grounds for divorce in a covenant marriage when compared to a "standard" marriage as explained in "The Covenant Marriage Act." (121) The legislature imposed minimal requirements purposefully, as has already been explained, (122) because the object was to invite religion back into the public square to lend its assistance to preserving marriages, not to dictate the manner in which religion had to assist.
The first three elements of content required in the pre-marital counseling appear in the declaration of intent signed by the parties. (123) Explaining that in a covenant marriage the grounds for divorce are limited was a requirement added by amendment in the Senate Committee on Judiciary A. It was the understanding at the time the amendment was offered and passed that the explanation of the law of divorce was to be in a pamphlet prepared by the Attorney General, (124) patterned after a similar pamphlet explaining community property law also distributed to applicants for marriage licenses. (125) The senators knew that virtually all of the counselors utilized by prospective covenant couples would be religious and thus not trained in the law. (126) Suggestions that "a person trained in the law or ... schooled in the intricacies of the law governing marriage and divorce should explain the differences...." (127) was never seriously entertained by any legislator. If such a requirement were imposed for covenant marriage, then someone trained in the law would have to explain an apartment lease, a waiver form signed in a doctor's office, and analogously, the information contained in the pamphlet concerning community property law.
Until the covenant marriage legislation required the distribution of the pamphlet, "The Covenant Marriage Act", nothing explained the Louisiana law of divorce to applicants for marriage licenses. No applicant was informed that either spouse could end a thirty-year marriage by filing a petition and living separate and apart from the other for one hundred eighty days. (128) Now, all of a sudden, critics express concern that couples who wish to commit to a stronger form of marriage, and only those couples, must be fully informed by one trained in the law about grounds for divorce. The Florida legislature enacted legislation in 1998 that requires an applicant for a marriage license receive a pamphlet prepared by the Family Law Section of the Florida Bar Association explaining the Florida law of divorce. The covenant marriage law accomplished this objective for the state of Louisiana without separate legislation.
Two documents available in the local Clerk of Court's office must be presented by the couple to the Clerk: (129) (1) Declaration of Intent by the couple; (130) (2) an affidavit by the couple and the counselor accompanied by the notary's signature. (131) As a general matter, the Declaration of Intent signed by the wife and the husband constitutes a special contract ("covenant") between them, not merely a declaration of the couple's aspirations. (132) However, in practice and in its expression the clause of the Declaration that states the intention of the couple that their marriage be lifelong (133) is admittedly aspirational because more specific legislation permits grounds for termination of the marriage other than death. (134) Nonetheless, the declaration signed by the couple containing their expressed intent to achieve the ideal of lifelong marriage (135) communicates a powerful message which should not be under-estimated. (136)
By contrast, the agreement that if difficulties arise during the marriage, the couple will "take all reasonable steps to preserve their marriage, including marital counseling" (137) constitutes a contractual obligation. (138) Permitting such an agreement departs from the general principle that spouses' personal obligations during marriage are matters of public order from which they may not derogate by contract. (139) The legislature recognized that public order demanded this exception as a means to legally compel spouses who agree (140) to take reasonable steps to preserve their marriage.
A spouse may annul a covenant marriage for the same reasons as a spouse in a "standard" marriage: (141) a legal impediment, (142) no marriage ceremony, (143) or consent not freely given by a spouse. (144) In the former two instances the law declares the marriage absolutely null; (145) in the latter instance, relatively null. (146) Nonetheless, there is a potential ground for annulment of a covenant marriage that may exist which does not exist explicitly for a spouse who enters a "standard" marriage: (147) fraud. (148)
A "covenant" marriage contains mixed elements of both status and contract. Whether vices of consent which are available to annul an ordinary contract may be proved to annul a covenant marriage depends upon whether the reference in the legislation to annulment in "standard" marriages means those grounds for annulment are exclusive. Section 274 provides that a covenant marriage "shall be governed by all of the provisions of Chapters 1 through 4 of Title IV of Book I...." Among the chapters that shall govern a covenant marriage is Chapters 1 and 2, which contain the articles on entry into marriage and nullity of marriage. (149) However, Section 274 does not provide that a covenant marriage shall only be governed by those chapters. As a consequence, while conceding that all of the articles that govern entry into marriage and nullity in "standard" marriages also apply to "covenant" marriages, an argument can be made that other articles that apply directly to annulment of ordinary contracts also apply.
Unlike a "standard" marriage, the engaged couple (150) who contract a covenant marriage sign a declaration that includes two relevant statements. First, prospective spouses (151) attest to signing the statement that, "[w]ith full knowledge of what this commitment means, we do hereby declare our marriage will be bound by Louisiana law on Covenant Marriages." (152) To assure full knowledge of the commitment the couple makes, the covenant marriage legislation requires that they be counseled before the execution of the Declaration and that the couple read the "Covenant Marriage Act," the pamphlet prepared by the Attorney General. (153) In fact in the Declaration the signatories attest to having read the Covenant Marriage Act. (154) To subsequently allege and prove that a spouse was in error (155) in contracting a covenant marriage after all of the information is provided in many varied forms presents substantial hurdles.
Just as with error, proving fraud induced a spouse's consent (156) to a covenant marriage will be difficult as a general proposition, with one notable exception. In the Declaration the prospective spouses also attest to the disclosure: "We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage." (157) This statement affirms disclosure of information by each spouse which could adversely affect the decision to enter into this marriage--a disclosure of information that one spouse believes if discovered by the other could result in a broken engagement. For information that could adversely affect the decision of the other spouse to marry, the statement transforms a potential "suppression of the truth" (158) into a "misrepresentation," (159) and that transformation has consequences. (160) Withholding information and misrepresenting its disclosure must be with the intention to "obtain an unjust advantage for one party or to cause a loss or inconvenience to the other." (161) If the other spouse suffers an "inconvenience," (162) such as being married to a person whom he would not have married had he known the truth, then the law may assume the fraudulent intent of the person withholding the truth.
If the withheld information substantially influenced the other spouse's consent (163) then the covenant marriage may be annulled for fraud unless the other spouse could have "ascertained the truth without difficulty, inconvenience, or special skill." (164) If the other spouse could have "ascertained the truth without difficulty," the law assumes that the judgment of the other spouse influenced his decision more than the withholding of information by his fiance. Nonetheless, there is one exception to this assumption: "when a relation of confidence has reasonably induced a party to rely on the other's assertions or representations." (165) Thus, even if the other spouse could have ascertained the truth without difficulty, he may have reasonably relied on the representations of the other spouse because of their confidential relationship. Clearly, a "confidential relationship" exists between prospective spouses (166) so that the other spouse could reasonably rely on the representation of disclosure made in the Declaration of Intent even if he could have ascertained the truth without difficulty. The conversion of a suppression of the truth to a misrepresentation through the statement contained in the Declaration of Intent has consequences for the proof of fraud, which in all cases need be proved by a simple preponderance of the evidence. (167) A misrepresentation makes proof of fraud easier when a confidential relationship exists between the two parties. Under this analysis the spouse who was misled may annul the "covenant" marriage. (168) Because the covenant marriage "contracted by the spouses is null for fraud, the nullity is relative (169) and may be confirmed, either expressly or tacitly, (170) upon discovery of the deception by the spouse who was misled. (171)
Yet, despite annulment of the covenant marriage, the spouse who was misled remains in a "standard" marriage, unless fraud can also be invoked to annul a "standard" marriage. (172) By contrast to the vice of consent of duress, (173) the Civil Code does not explicitly provide that if fraud induces consent to marriage the marriage is null. An argument can be made that because a "standard" marriage "is created by civil contract" (174) and the examples of lack of free consent are not necessarily exclusive (175) a spouse may resort to general principles of the law of conventional obligations for relief, including the law affecting consent. (176) However, "[r]elative nullity has not been used to invalidate marriages in which consent was given on the basis of false or inadequate information concerning the spouse." (177) Thus, the court is most unlikely to annul the remaining "standard" marriage upon proof of fraud. In recognition of the practice of the judiciary, Article 93 when enacted in 1987 eliminated "mistake respecting the person" as an instance in which consent to marry was not freely given. (178)
IV. Second Distinguishing Feature: Agreement to Pre-Divorce Counseling
"... If we experience marital difficulties, we commit ourselves to take all reasonable steps to preserve our marriage, including marital counseling." (180)
Covenant couples in their Declaration of Intent agree to take reasonable steps to preserve their marriage; and this agreement, which is a limited exception to the general principle that spouses' personal obligations are matters of public order, (181) constitutes a contractual obligation. (182) The intention of the legislature in including this statement in the Declaration was not simply to provide an "aspirational statement," (183) which explains why the counselor must discuss "the obligation (184) to seek marital counseling in times of marital difficulties...." (185)
The legislature intended that this obligation be legally enforceable through contractual remedies, rather than as a necessary prerequisite to obtaining a separation or divorce. This intention is evident because of the failure of the legislation to be more explicit concerning the effect of a failure to take reasonable steps. (186) The construction of the sentence in both lettered paragraphs of Section 307 mentions counseling (187) in the introductory clause as preliminary to a covenant spouse obtaining a judgment of divorce or separation. However, when the same sentence in its main clause addresses the obtaining of the judgment and includes the word only, the sole requirement for the judgment is proof of one of the grounds listed. (188) The procedural mechanism for raising the counseling prerequisite would be either a dilatory (189) or peremptory (190) exception, but neither seems applicable to the action for separation or divorce in a covenant marriage. Because the legislation does not use the word only to describe the preliminary counseling, the exception could not be peremptory. (191) Likewise, because the obligation "to take reasonable steps" will not be enforced by specific performance (192), the dilatory exception appears inappropriate because such an exception assumes that whatever prevents the maturity of the action can be cured. (193) Even though the obligation to "take reasonable steps" does not constitute a necessary prerequisite to the action for divorce or separation (194), the availability of contractual remedies at least restores some legal remedy to the spouse who has fulfilled her promises and desires to preserve the marriage. (195)
As an aspect of the Declaration of Intent that is a matter of contract rather than status, the agreement to take reasonable steps to preserve the marriage is subject to the more general rules of conventional obligations. (196) Therefore, the agreement to take reasonable steps also may be dissolved by mutual consent (197) unless the obligation is a matter of public order. (198) The agreement to dissolve a contract is itself a contract; and if the "reasonable steps to preserve the marriage" is a matter of public order that once agreed to cannot be altered by the parties, then the agreement cannot be dissolved by mutual consent. Considering the purpose of the covenant marriage legislation to strengthen marriage (199), a strong argument can be made that once covenant spouses agree to take steps to preserve their marriage the agreement, as a matter of public policy, cannot be altered by the parties.
The spouses' agreement to take reasonable steps "must be performed in good faith." (200) Good faith is not defined in the Civil Code (201) nor is the term sufficiently defined in the jurisprudence. (202) The judiciary appears to determine "good faith" within the context of the specific contract, and in at least one case the court seemingly equated failure to perform in "good faith" with conduct of the obligor that bordered on "bad faith." (203) In Louisiana Power & Light Co. v. Mecom (204) the court held that the duty of good faith does not require a party to a contract to remind the other party of his contractual duties. Based upon these two cases, the spouse who desires to preserve the marriage does not fail to perform the agreement in "good faith" if she fails to remind the other party of his duty "to take reasonable steps to preserve the marriage." He, on the other hand, does fail to perform the contract in "good faith" if he engages in intentional and malicious conduct that prevents taking reasonable steps to preserve the marriage. More often than not, the spouse who no longer desires to be married will have breached the obligation by his non-performance, and his failure to perform the contract in "good faith" will be academic. Nonetheless, for some cases in which a spouse argues that he took "reasonable steps to preserve the marriage," but his conduct belies "good faith", the court may award damages.
A spouse may rescind this agreement to take reasonable steps to preserve the marriage for the vices of consent--error, (205) fraud, (206) or duress. (207) In an effort to eliminate the possibility of error or fraud, the counselor must discuss the obligation to seek marital counseling in times of marital difficulties as a part of the pre-marital counseling. (208) The truthful disclosure by the counselor and his discussion of the obligation to take reasonable steps to preserve the marriage attested to by the notary provide insurance against error or fraud. Error will be difficult to allege and prove if after such counseling the spouse who is seeking relief signed the Declaration of Intent which contained his agreement to take reasonable steps to preserve his marriage. Even if there were a misrepresentation about the statement contained in the document, fraud may be difficult to prove since the truth arguably could have been ascertained by simply reading the document. (209) The Senate Committee amendment that required this obligation to be explained both in the pamphlet and in the counseling session proves the intention of the legislature that the couple have all of the information necessary to make a decision deliberately and knowledgeably.
One criticism of the legal efficacy of the agreement to "counseling" (210) is that "coercive marital counseling" does not work. (211) The two systems, one in California and the other an experiment in New Jersey, (212) do not resemble the binding agreement of the spouses to a covenant marriage. In the first place, the contractual agreement to take reasonable steps to preserve the marriage will not in the ordinary case result in compelling a spouse's attendance at counseling, i.e. specific performance. (213) In the second place, the law does not impose this obligation upon every spouse whose marriage is experiencing difficulty, as in California and New Jersey. The obligation is only imposed upon every spouse who promised to take reasonable steps to preserve his marriage after being informed of the nature of the obligation he undertook. Being bound by one's promises voluntarily made is qualitatively different from being required to submit to "counseling" by sole imposition of the law. (214)
The spouses agree to take all "reasonable" steps to preserve their marriage, including marriage counseling. Nothing in the agreement or the legislation suggests that marriage counseling is the exclusive "reasonable" step, in fact the inference is quite the opposite. By simply offering marital counseling as an illustrative example, the legislature in no way intended to limit the spouses to a particular type of "step." Reasonable steps to preserve the marriage could include sessions with family or friends during which the couple discusses the difficulties in their marriage. Within the religious community support groups of all types exist which could be consulted in an effort to preserve the marriage, such as Sunday School classes, Bible study groups, and mentoring couples. "Steps" could likewise include living in separate bedrooms in the same house ("cooling off"), separate buildings on the same piece of property, or in separate dwellings while the spouses discuss the marital disharmony. Whether the "steps" are "reasonable" will depend upon the circumstances. What may be "reasonable" when one spouse has abandoned the other may not be reasonable if one spouse has physically abused the other.
As previously observed (215) the contractual obligation to take reasonable steps to preserve the marriage must be performed in good faith. (216) It can be argued that should one spouse agree to marital counseling but only for one session because he is intent upon divorcing, or should the spouse also insist that he choose the counselor, it may be that he has breached his obligation by not performing it in good faith. (217) The requirement that the obligation be performed in good faith permits the court to examine the motives of a spouse even in instances where the spouse has mechanically fulfilled his obligation to attend marital counseling. Should the court determine that the insistent spouse has not performed his obligation in good faith the other spouse may be awarded damages. (218)
Of ultimate importance is that the "steps" to be taken are steps that attempt to "preserve the marriage"; and, as has been observed elsewhere, (219) therapists often fail to consider the family as a unit when marital difficulties arise. Therapists, consisting of psychiatrists, psychologists, social workers, and marriage counselors, (220) are trained to devote their professional efforts to maximizing the individual spouse's fulfillment and happiness. (221) As to their alleged "venal" motive of a lucrative professional opportunity offered as experts in family cases, (222) some therapists sensing a shifting cultural trend now endorse "marriage education and enrichment" (223) as a new field of professional opportunity. The authors of the covenant marriage legislation anticipate that many covenant couples who later experience marital difficulties will seek assistance from the same individual who provided their pre-marital counseling. In virtually all cases, that individual will be a minister, priest or rabbi, a religious figure. Counseling by a religious figure should (224) stress preservation of the marriage and emphasize the importance of the family unit, rather than concentrate upon one spouse's individual happiness. What's more, the religious figure will undoubtedly not be morally neutral; (225) thus, he will not hesitate to assign blame to the spouse who, for example, committed adultery, abandoned the other spouse for no good reason, physically or sexually abused the spouse or children, or committed a felony.
Even though counseling is not a mandatory prerequisite to filing for divorce, (226) commentators have criticized the agreement to take "reasonable" steps to preserve the marriage as subjecting victims of domestic violence to potential loss of life. (227) Assuming that domestic violence is as widespread a phenomena as some writers suggest, (228) the agreement only binds the victim to take "reasonable" steps to preserve the marriage. In most cases of domestic violence where the spouse has been the victim, joint counseling would not be reasonable. No obligation to preserve the covenant marriage assumed by the victim of violence requires her to risk her life. (229) Reasonable steps to preserve the marriage could include her individual counseling through a battered women's program and a separate intervention with the batterer who also submits to additional therapy. Interestingly, one story of a Louisiana covenant spouse who was physically abused by the other offers hope that under controlled circumstances even joint counseling may be accomplished with beneficial consequences. With additional protection provided her and upon the advice of her attorney, the victim spouse attended a joint marital counseling session with the abusing spouse conducted by the couple's minister. The minister did not hesitate to blame the husband for the couple's marital difficulties. By virtue of his moral authority to instill shame and inflict humiliation upon the abusing spouse in the presence of others, the minister performed a service that benefitted the victim, society and the abuser. (230) Should the victim be sued by the batterer for breach of her obligation to take "reasonable" steps to preserve the marriage, her defense would be the unavailability of "reasonable" alternative steps in light of the degree of violence perpetrated by the batterer. Furthermore, by analogy the victim could argue that the bad faith of the abusing spouse prevented her performance. (231) His bad faith consisted of the intentional and malicious act (232) of physical abuse which threatened her life and thus prevented her performance.
The core of the content of pre-divorce counseling, as already mentioned, (233) consists of "reasonable steps to preserve the marriage." That agreement of the spouses as to the aim of pre-divorce counseling determines the contours of the counseling; its content is not specified by the legislation. Clearly, the spouses commit to reasonable steps to preserve the marriage; thus, counseling that emphasizes the fulfillment and happiness of the individual to the exclusion of the other members of the family would not conform to the spouses' agreement. Religious figures who counsel are more likely to emphasize the preservation of the marriage. Some denominations, such as the Catholic Church, or other faith-based organizations, such as Marriage Savers, offer programs with a remarkable success rate. (234)
The law characterizes the obligation to take reasonable steps to preserve the marriage if marital difficulties arise as an obligation to do (235) subject to a suspensive condition. (236) Upon fulfillment of the condition (marital difficulties), (237) the obligation is enforceable. If one spouse breaches the obligation, (238) which in the ordinary case will be by nonperformance, (239) the other may seek legal redress during the marriage. (240) Because the obligation to take reasonable steps is an obligation to do, the court would ordinarily award damages rather than specific performance, although specific performance is within the discretion of the court. (241) Professor Carriere accurately observes that "compelling an unwilling party to attend marriage counseling, either as an exercise of state power in a family law action or as specific performance in contract, appears self-defeating if the goal is to reconcile the couple." (242)
Nonetheless, the spouse affected by the other's breach may seek damages, both pecuniary (243) and non-pecuniary. (244) Pecuniary damages consist of damages to compensate for pecuniary loss sustained and the profit of which the spouse was deprived by the other's breach. Pecuniary loss sustained may include, if causally related to the breach, (245) increased expenses for maintaining two households rather than one during the period of separation or expenses necessitated by attempts to obtain the other spouse's compliance with the obligation. (246) In the former case a causal connection could be proved if "reasonable steps" would have included living together while steps to preserve the marriage were pursued. Profit of which the spouse was deprived would ordinarily not include lost future profits because of the difficulty of proving causation with sufficient precision. (247) Furthermore, the ultimate recovery of these pecuniary damages will depend upon whether the other spouse who refuses to take reasonable steps to preserve the marriage fails to perform in "good faith" (248) or "bad faith", (249) the latter defined as a failure to perform that is both intentional and malicious. (250) Circumstances surrounding the failure to perform ordinarily prove the breach was intentional. However, to constitute bad faith the breach must also be malicious, designed to injure the offended spouse. Proof of malice may or may not be difficult depending upon the existing evidence. Evidence of particular importance is that contemporaneous with the failure to perform, such as the response of the obligor to entreaties by the obligee to attend counseling sessions.
The aggrieved covenant spouse may recover nonpecuniary loss because the nature of the agreement is "intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract" (251) the other spouse knew, or should have know "that his failure to perform would cause that kind of loss." (252) "That kind of loss" refers to "damage of a moral nature which does not affect a `material' or tangible part of a person's patrimony", (253) but damage that is more than "mere worry or vexation." (254) Examples of the type of loss suffered by the aggrieved spouse if the other breaches his obligation include embarrassment, mental anguish, humiliation, and psychological damage. (255) As to these damages, Article 1999 affords the court "much discretion." (256) The sum awarded for these non-pecuniary damages need not be nominal. (257)
A covenant marriage represents a status combined with permissible contractual agreements between the spouses. Being married or divorced is a matter of status; (258) however, the obligation to "take reasonable steps to preserve the marriage, including marital counseling" is a matter of contract. (259) For purposes of jurisdiction and conflict of laws, the distinction is important. Whether a covenant spouse may leave Louisiana, establish a domicile in Texas and then sue for divorce under Texas law is generally accepted as a matter of the law relating to status. (260) Thus, a covenant spouse who wishes to divorce under laws less stringent than those to which he committed himself may travel to Texas and if he establishes a domicile (261) may obtain a divorce under the less restrictive law of Texas. Professor Carriere accurately describes the result of two United States Supreme Court decisions in Williams v. North Carolina: (262) "Covenant marriage partners do have another option that makes quick divorce, even unilateral quick divorce, a possibility: divorce in a different jurisdiction. (263)
Nonetheless, even if a covenant spouse's status as married or divorced is governed by the law of the new domicile (Texas), the other spouse may argue that a breach of the obligation to take reasonable steps to preserve the marriage is a matter of contract. (264) Under the provisions of Louisiana's long-arm statute, (265) the covenant spouse who remained in Louisiana could seek damages from her spouse now domiciled in Texas for breach of his obligation to take all reasonable steps to preserve the marriage. (266) Even though the first paragraph of the long-arm statute does not provide explicitly for personal jurisdiction in such a case, the second paragraph permits the exercise of personal jurisdiction over the Texas domiciliary "on any basis consistent with the constitution of the state and of the Constitution of the United States." (267) Under the relevant federal (268) and state (269) jurisprudence, Louisiana has specific jurisdiction (270) over the Texas covenant spouse if he has meaningful minimum contacts with Louisiana and the maintenance of the suit "does not offend traditional notions of fair play and substantial justice." (271)
The plaintiff, who by the same suit may seek support for herself and any children of the marriage, (272) bears the burden of proving the other spouse's minimal contacts with Louisiana. (273) The spouse who is a domiciliary of Texas had contacts with Louisiana which include: execution of the Declaration of Intent in Louisiana after mandatory pre-marital counseling by a duly authorized counselor, performance of the ceremony in Louisiana, residence in Louisiana after the covenant marriage, and a former spouse and children who remain domiciled in Louisiana to whom the defendant continues to owe an obligation of support. Once the plaintiff proves minimal contacts, the burden shifts to the nonresident defendant "to prove the exercise of jurisdiction `would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness....' " (274) It will be difficult for the nonresident defendant to prove that the exercise of personal jurisdiction over him would be unreasonable since Louisiana specifically recognizes jurisdiction over him when he has failed to support his spouse or his child. (275) Trying the related issues of support and damages for breach of the covenant marriage agreement in one action in a Louisiana court serves the general concern for efficient and just resolution of disputes arising between covenant spouses. (276)
V. Third Distinguishing Feature: Limited and More Time-Consuming Grounds for Divorce and Resurrection of Legal Separation
Despite recognition that the covenant marriage law utilizes pre-marital and pre-divorce counseling in an attempt to strengthen marriage, critics (277) and supporters (278) of the legislation focus on the defining component--limitations on divorce. Critics are not deterred by the predicate element of consent of the parties; (279) they insist that "government" prevent a more binding commitment. Some admit that their principal concern is that "what is voluntary today is mandated tomorrow", although recent attempts to eliminate unilateral no-fault divorce in this country have been singularly unsuccessful. (280) Yet, at a time when the divorce proponents breathed a collective sigh of relief, Louisiana passed the covenant marriage law, referred to alternatively as "a stealth anti-divorce weapon" (281) and as a "skunk." (282) The historic significance of its passage explains the indignant reaction: the covenant marriage legislation represents the first time, as general trend, in two hundred years in any Western country that divorce has become more difficult rather than easier. (283)
If a spouse agrees to a covenant marriage, divorce requires proof of fault in the nature of adultery, conviction of a felony and a sentence of imprisonment at hard labor or death, abandonment (for one year), physical or sexual abuse of a spouse or child of the parties, (284) habitual intemperance or cruel treatment (285) and a period of time living separate and apart thereafter. (286) In addition to the fault grounds for divorce, either spouse may obtain a divorce upon proof of living separate and apart for two years. (287) By comparison to grounds for divorce in a "standard" marriage, (288) divorce in a covenant marriage is more difficult and/or time consuming.
Although the grounds for divorce and separation from bed and board superficially resemble the law in effect until 1979, (289) significant differences exist. First and foremost, physical or sexual abuse of a spouse or a child was never grounds for divorce in Louisiana until 1997, and this conduct is grounds for divorce only in a covenant marriage. In a "standard" marriage in Louisiana the victim of spousal abuse must seek a "no-fault" divorce based upon living separate and apart for six months. To refuse to pass judgment on this conduct and to grant a "no-fault" judgment instead appears indefensible. The batterer should be adjudged guilty of the act or acts of violence which society condemns in a civil proceeding that permits proof by a simple preponderance of the evidence. Furthermore, she should not have to wait for six months or longer, married to but separated from the abuser, if "reasonable" steps were taken to preserve the marriage without success. (290) Secondly, abandonment was simply a ground for legal separation and did not require proof of a period of time during which the abandoning spouse constantly refused to return. (291) Third, before repeal in 1991, (292) there were eight grounds for separation from bed and board based upon fault, (293) grounds which had expanded to ten by adding two additional "no-fault" grounds. (294) In a "covenant" marriage there are only six grounds for separation from bed and board, (295) which do not include, for example, public defamation, an attempt on the life of the other spouse, or intentional non-support of the other spouse who is in destitute or necessitous circumstances. (296) Fourth, a judgment of divorce after legal separation required proof of having lived separate and apart for six months, without regard to whether there were minor children of the marriage. (297) Covenant marriage legislation expresses unambiguously the legislature's concern for the effect of divorce on children, a sentiment not so clearly communicated by prior divorce law.
Because of the superficial similarities to the law of separation and divorce in the 1970's, critics have argued that the covenant marriage legislation "substantially replicates a version of the Louisiana divorce law that was in place during the period when the divorce rate was increasing [1970s (298)]; its few changes enhance the availability of speedy divorce. (299) ... It offers this regime [covenant marriage] as an alternative to the civil code regime that has been in place during a period of declining divorce rates." (300) Divorce rates significantly increased during the period of 1968-1979 principally because of the enactment of easy "no-fault" divorce laws which "broke the dam" of pending domestic cases. (301) Professors Margaret Brinig and F.H. Buckley demonstrate in their article No-Fault Laws and At-Fault People that even after the introduction of "no-fault" laws higher divorce rates persisted in "no-fault" states. (302) Despite assertions about Louisiana's divorce rate being only slightly less than the national rate, (303) Louisiana is the only state which fails to report consistently the number of divorces to the National Center for Health Statistics. (304) That inability to establish the divorce rate in Louisiana has created significant obstacles to the current five-year empirical study of the effect of Louisiana's covenant marriage legislation on the state's divorce rate. (305) Even using old or unreliable Louisiana divorce statistics, the phenomenon of a spike in the divorce rate during the 1970s can easily be explained as the result of almost universal enactment of easy unilateral divorce in the 1970's. (306) Furthermore, the level or slightly declining national divorce rate occurring since the 1991 enactment of Louisiana's easier divorce scheme ignores the alarming increase in cohabitation rates during the same period of time. Cohabitant relationships terminate without affecting divorce statistics. (307) The precipitous increase in cohabitation rates do not bode well for our nation's children whose best welfare, as has been observed earlier, (308) depends upon the traditional two-parent home where the biological parents are committed to each other through marriage.
Termination of a covenant marriage necessarily affects status (309); termination of a covenant marriage is not a matter governed by the principles of contract. Section 274 of Title 9 imposes upon a "covenant" marriage (310) the means of termination of a "standard" marriage under Civil Code article 101. (311) Causes for termination of a "standard" marriage are exclusive. (312) The judiciary has always distinguished marriage from an ordinary contract (313) as a relationship conferring status. (314) Thus, speculation that a "covenant" marriage may be dissolved by mutual consent (315) like an ordinary contract (316) overlooks not only the provisions of Section 274 but also those of Section 273 which instruct the counselor to discuss: "... the exclusive grounds for legally terminating a covenant marriage by divorce or by divorce after a judgment of separation from bed and board." (317)
Louisiana's assertion of judicial jurisdiction (318) to render a separation from bed and board in a covenant marriage is narrower than the state's assertion of jurisdiction to divorce couples in either a "standard" or covenant marriage. (319) For jurisdiction to render a legal separation Louisiana requires that in addition to the Louisiana domicile of either plaintiff or defendant the ground for separation (i.e. adultery, abandonment, physical or sexual abuse) occurred in Louisiana or while the matrimonial domicile was in Louisiana. (320) To render a divorce in either a "standard" or covenant marriage, the law only requires that either the plaintiff or defendant be domiciled in Louisiana. (321) The restrictive jurisdictional statute poses the historical issues of where does the abandonment or the living separate and apart occur and when is the matrimonial domicile in Louisiana. (322) Even though the statutory assertion of jurisdiction is narrow, the Revised Statute section also adopts the chivalrous notion of permitting a "returning spouse" access to Louisiana courts if she was domiciled in Louisiana prior to the time the cause of action occurred, the cause of action occurred outside of Louisiana, and she is domiciled in Louisiana at the time the action is filed. (323) This jurisdictional provision likewise had a predecessor. (324)
These two provisions asserting Louisiana's jurisdiction in a separation action seem unnecessarily restrictive and inconsistent with the policies of the covenant marriage legislation. If jurisdiction in a separation action were coextensive with jurisdiction to render a divorce, the law would provide more protection to the "innocent" covenant spouse by providing greater access to Louisiana courts. The "innocent" spouse to a covenant marriage should be permitted easy access to Louisiana courts, especially for a legal separation, in an effort to assure enforcement of the contractual provisions of her covenant marriage. Assurance comes in the form of guaranteed application of Louisiana law, (325) especially since Louisiana would have personal jurisdiction over the absent covenant spouse. (326) No court in another state would be as well equipped to interpret and apply the Louisiana law of covenant marriage. As importantly, it is illogical to restrict access to a legal separation in instances where access to divorce is not so restricted. Louisiana's assertion of jurisdiction, if it is to be consistent with the overall policy of covenant marriage, should encourage separation from bed and board, which preserves the marriage, in preference to divorce.
A spouse in a "covenant" marriage, just as in a "standard" marriage, (327) may seek a divorce for the other spouse's adultery or conviction of a felony if the sentence imposed is imprisonment at hard labor or death. (328) Adultery, defined in the cases to include at the least oral sex (329) as well as sexual intercourse with penetration, has always been considered the most serious violation of a spouse's marital obligations. (330) The possibility of the wife's adultery introducing a "bastard" into the husband's blood line (331) in combination with the sharing of one's sexual potential as an expression of the deepest human intimacy made adultery the most reprehensible of conduct within the marital relationship. The jurisprudence interpreting the meaning of commission of a felony (332) will apply, of course, to the identical ground for divorce or separation from bed and board in a "covenant" marriage. (333)
Abandonment, once grounds for a legal separation in Louisiana (334) and still relevant for purposes of final periodic support, (335) requires evidence that a spouse has left the matrimonial domicile, without lawful cause, and "constantly refuses to return." (336) Jurisprudence recognized that abandonment could be "constructive" without the necessity of a spouse "quitting" the matrimonial domicile. For example, if he changed the locks on the doors of the matrimonial domicile or otherwise prevented the other spouse from entering, the judiciary recognized that the action constituted a "constructive" abandonment. (337) Ordinarily, proving a spouse left the matrimonial domicile is not difficult. The issue that proves the most troublesome is whether the spouse left "without lawful cause." Although the jurisprudence is not entirely consistent, (338) courts generally permit proof of a constant refusal to return by evidence that the other spouse has not returned prior to the divorce or separation litigation. (339)
Lawful cause to leave which precludes the offense of abandonment includes proof that the spouses' agreed to live separate and apart even if that agreement is implied from conduct, (340) or that the spouse who remained at the matrimonial domicile was guilty of fault justifying the departure of the other spouse. (341) Fault in a "standard" marriage that justifies one spouse's departure from the matrimonial domicile is conduct that constitutes grounds for legal separation or divorce prior to January 1, 1991, (342) the same definition of fault for purposes of final spousal support. (343) In a "covenant" marriage fault that constitutes lawful cause should consist of grounds for a legal separation or divorce in a "covenant" marriage--such as adultery, commission of a felony, physical or sexual abuse of the spouse or a child of the parties, habitual intemperance or cruel treatment that renders their common life together insupportable. (344) In effect for a "covenant" marriage, fault for purposes of lawful cause to abandon a spouse, has been redefined with the identical contours of separation or divorce grounds in a "covenant" marriage. To the extent that additional grounds for separation existed prior to January 1, 1991, (345) and do not fall under the rubric of cruel treatment (346), they are not "lawful cause" for abandonment in a "covenant" marriage.
Unlike the prior ground for separation, abandonment in a "covenant" marriage must exist for a one-year period. (347) As a consequence, the third element of abandonment, "has constantly refused to return", should be easier to prove, at least its constancy. However, what may be more difficult to prove, in a conscious departure from prior jurisprudence, is that the other spouse has constantly refused to return during the entire one-year period. Refusal implies a request, or at the very least a demonstrated willingness to receive the abandoning spouse into the matrimonial domicile. Prior to 1958 this refusal was proved by a judicial summons directed to the abandoning spouse and his failure to obey the summons by returning to the matrimonial domicile. (348) Thereafter, the legislation permitted proof of abandonment "as any other fact in a civil suit." (349) This change led to some judicial decisions "running counter to the historic purpose of the suit for abandonment," (350) which was "more an effort to have the errant spouse return and renew the conjugal life than to put an official end to it." (351) With the enactment of "covenant" marriage legislation, the object of which is to strengthen marriage by counseling and a more difficult and time-consuming divorce process, abandonment for the first time became a ground for divorce but only if it lasted for a period of one year. Considering the purpose of the legislation and the seriousness with which abandonment is treated, the judiciary should require proof of a request by the abandoned spouse and then a failure to return by the other. (352) Furthermore, constancy within the one-year period implies more than one request for the other spouse's return and the last such request within a reasonable time immediately prior to the expiration of the one year.
During the one-year period of abandonment while the spouses are physically living apart, either spouse may seek limited incidental relief: child custody, child support and spousal support. (353) The same criteria apply to the granting of such incidental relief as apply to their award pending separation or divorce. (354) Thus, a court considering a request for spousal support during this period should apply the criteria for the award of interim spousal support: "the needs" of the claimant spouse, the "ability of the other party to pay, and the standard of living of the parties during the marriage." (355) The award of spousal support while the couple is physically separated serves the same purpose as an interim award--"to maintain the status quo without unnecessary economic dislocation...." (356) Other incidental relief that may be requested by a spouse in a proceeding for divorce (357) or separation (358) but which is not explicitly available before filing suit includes special injunctive relief, (359) except for an injunction in family violence cases; (360) use and occupancy of the family home or use of community movables or immovables; (361) or use of personal property. (362) During the one-year period the community of acquets and gains continues to exist. However, either spouse may seek a judgment of separation of property after the couple has been physically separated for six months; (363) the judgment terminates the community regime. (364)
For the first time in Louisiana history physical or sexual abuse of a spouse or a child of the parties, which includes children who are not children of the marriage, (365) is a ground for divorce but only in a covenant marriage. (366) Before January 1, 1991, a spouse could obtain a separation from bed and board for cruel treatment which always included physical cruelty toward a spouse as long as the cruelty rendered the common life together insupportable. Cruelty by a spouse directed at a child of the parties if in the presence of the offended spouse also constituted cruel treatment since the presence of the offended spouse meant it was intended to harm her. By comparison, the covenant marriage legislation expanded the offensive conduct to include sexual or physical abuse of the child without the requiring that the abuse be in the presence of the other spouse. In addition the legislation elevated the seriousness of the societal offense (367) to a ground for divorce. What a mockery the law makes of divorce from the abuser in a "standard" marriage by pronouncing that the breakup of the marriage was no one's fault. (368) The abused spouse in a covenant marriage need not wait 180 days or six months to seek a divorce but can file for a divorce immediately (369) with the concomitant societal judgment about the abuser's conduct.
Physical and sexual abuse are terms used in the Post-Separation Family Violence Relief Act as part of the definition of "family violence." (370) The definition of "family violence" under the Act explicitly includes acts beyond physical or sexual abuse, such as any offense against the person, (371) but also clarifies that the term does not include "reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the family violence of the other parent." (372) Louisiana courts have had occasion to interpret the meaning of "sexual abuse," which includes touching a child in her vaginal area, (373) encouraging child to touch and kiss adult in groin area, (374) and adhesions of the hymen consistent with penetration discovered during physical examination. (375) "Physical abuse" includes striking a spouse in the face; (376) pushing, punching, shoving, biting, or kicking a spouse; (377) throwing water in spouse's face and then throwing her to the floor; (378) grabbing a spouse by the neck and choking her; (379) grabbing a spouse's hair and banging her head against the inside of a car; (380) putting a gun in a spouse's face and threatening to kill her; (381) and severely shaking and whipping a child which leaves bruises. (382)
Broader notions of objective fault as grounds for divorce restores a higher standard of morality in conduct within the marital relationship. (383) Although far more incidents of violence occur in non-marital relationships, (384) covenant marriage makes the abuser legally accountable to society. Covenant marriage restores on behalf of society a standard of morality within the marital relationship which society is willing to apply to the conduct of married partners. Covenant marriage not only condemns certain marital misbehavior but also admonishes a couple that only the strongest reasons justify termination of the marriage, particularly if there are children. Communicating society's ideal in the form of a choice can only strengthen the cultural perception of marriage and perhaps save it from extinction. (385)
Unlike Arizona (386) Louisiana covenant marriage legislation limits cruel treatment, other than physical or sexual abuse, to grounds for separation upon proof that the cruelty in question renders the spouses' life together insupportable. (387) The legislation, just as its predecessor, (388) includes "excesses", "outrages", and "ill-treatment" (389) in addition to cruel treatment. All such conduct was aggregated under the rubric mental cruelty. A survey of cases interpreting the terms (390) reveals that mental cruelty can include the refusal of sexual relations (391) or sexual excess, (392) failure to adequately perform housecleaning and the preparation of meals, (393) religious fervor and constant proselytizing, (394) harassment beyond mere nagging and griping, (395) serious monetary irresponsibility, (396) or an accumulation of such offenses. (397) Intemperance clearly refers to alcohol (398) and drug use, whether stimulants or depressants, (399) which if habitual, constant and repetitive rather than intermittent or isolated, may also be ground for a separation from bed and board.
In either case, however, the cruelty or habitual intemperance must be such that it renders the common life together insupportable. The requirement that the offensive conduct render the life together insupportable introduces a subjective factor intended to focus attention on the sensibilities of the offended spouse and the social milieu of the couple. The measure of insupportability should not be the same for all persons; for the same act will render the common life insupportable for some, but not for others. (400) Each case should be considered on its own merits, but this individualization of cases "must not be made a basis for abusing the law through laxity in its application." (401) The court "should use extreme prudence, having due regard for the possibility of the continuance of the spouses' life in common," (402) particularly since the marriage is a covenant marriage voluntarily chosen by the spouses. (403)
An "innocent" spouse may choose to seek a separation from bed and board rather than a divorce (404) for reasons as various as religious conviction or the desire to maintain spousal support at a higher level. (405) Should a spouse choose to obtain a separation from bed and board the length of time that must elapse between the judgment of separation from bed and board and the divorce differs depending upon whether there are minor children of the marriage. (406) If there are minor children of the marriage, as a general rule, the spouses must live separate and apart for one year and six months after the legal separation (407) before either spouse may file suit for divorce. (408) By contrast, if there are no minor children of the marriage, the spouses need live separate and apart for only one year after the legal separation before either may file for divorce. (409) The distinction in grounds for divorce after a legal separation emphasizes the existence of minor children of the marriage, supporting the claim that covenant marriage legislation was "for the sake of the children." (410) In troubled marriages where there are children of the marriage, "slowing down" the process of divorce in an effort to permit steps to be taken is a realistic response if the goal is to preserve the covenant marriage. (411) If there are no minor children of the marriage, the legislature lacks the compelling concern to preserve the marriage that it has if there are such children.
Despite the obvious concern for the preservation of a covenant marriage when there are minor children, there is an exception to the slowdown if "abuse of a child [need not be child of the marriage (412)] is the basis for which the judgment of separation from bed and board was obtained...." (413) If abuse of a child was the ground for legal separation, (414) then the threat posed to the child by the additional six-month period outweighs the policy permitting more time for the spouses to take steps to preserve the marriage. The focus of the covenant marriage legislation remains on the child of the marriage: preserve the marriage for the sake of the child unless the marriage poses an actual, realistic threat to the safety and psychological health of the child.
The introductory section of the legislation describing a covenant marriage declares that "[o]nly when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized." (416) This general definition of an element of covenant marriage, grounds for termination, is modified by the more specific provisions that thereafter govern divorce in a covenant marriage. (417) For example, the sentence begins by stating that "[o]nly when there has been a complete and total breach of the marital covenant...." may the non-breaching party seek relief. However, the more specific provision that governs divorce in a covenant marriage permits a spouse to obtain a divorce if the spouses have been living separate and apart for two years, (418) which does not involve a complete and total breach of the marital covenant by one spouse. (419) As general rule of interpretation, the more specific provision prevails if there is a conflict; but in this instance the more specific section prevails because it begins with "[n]otwithstanding any other law to the contrary...." (420) The explanation for the discrepancy in definition and the more specific section on grounds for divorce lies in the legislative history: the bill as introduced contained only two grounds for an immediate divorce in a covenant marriage, both of which (adultery and abandonment for one year) involve a complete and total breach of a spouse's marital obligations. (421)
Adultery and abandonment, however, are not the only grounds for an immediate divorce under the covenant marriage legislation which represent a spouse's total breach of his marital obligations. Conviction of a felony and physical and sexual abuse also involve conduct that constitutes a complete and total breach of one's marital obligations. Thus, the four "fault" grounds for an immediate divorce ultimately included in the covenant marriage legislation or the additional "fault" ground for a legal separation (422) concern a spouse's conduct that breaches his marital obligations. For the offenses that constitute "fault", the more specific provision is consistent with the general definition: only the non-breaching party may seek legal relief. (423) So what happens if both parties have engaged in conduct that constitutes "fault" grounds for separation and divorce and thus breached their marital obligations?
The query raises the possibility of the familiar defense of recrimination and the ameliorating principle, comparative rectitude. Recrimination as a judicially recognized defense derived from the underlying principle of the law of separation and divorce that relief was available only to the offended spouse. (424) Recrimination "had no role, and was not invoked, in a suit for separation or divorce based on living separate and apart." (425) If invoked by the defendant as a defense to a suit for separation or divorce by the plaintiff, the defendant had to prove "fault" by the plaintiff. To be successful the defendant had to prove not only the "fault" of the plaintiff, but also the degree of seriousness of plaintiff's "fault." If the defendant was successful in proving that plaintiff was at "fault" and that plaintiff's "fault" was equal to that of his, then plaintiff's suit was dismissed. The result, of course, of a successful invocation of the defense was that neither spouse could obtain a separation or divorce for "fault" of the other. If the defendant could not prove that the "fault" of the plaintiff was equal to or greater in degree than his own, (426) then plaintiff prevailed and was entitled to a judgment. (427) Even if the defendant were successful and plaintiff's suit was dismissed, either spouse could thereafter seek a "no-fault" divorce after living separate and apart for the requisite period of time.
The defense of recrimination with its corollary principle of comparative rectitude was legislatively overruled in separation actions (428) and judicially overruled in divorce suits. (429) Does the definition of a covenant marriage resurrect the defense of recrimination in a suit for divorce by a covenant spouse? What effect would its resurrection have on the covenant couple? If additional fault grounds for divorce had simply been added to the list of grounds for divorce in a "standard" marriage under Civil Code article 103, a strong argument could be made that the jurisprudence had abolished the defense. However, by creating a new tier, or type, of marriage that emphasizes relief exclusively for the "innocent" spouse, the legislature may have expressed an intention to permit the principles inherent in a remedy for "fault" to be asserted. Comparative fault, developed as a modification of contributory negligence, is well established in Louisiana tort law, which is based upon the duty of a person whose "fault" causes damage to another to repair it. (430) However, the development of comparative rectitude to temper the perceived harshness of the defense of recrimination overlooked the fact that comparative rectitude was unnecessary to afford relief to the parties. As long as the law provided a "no-fault" ground for divorce, either spouse could ultimately obtain a termination of the marriage. During the same session that the covenant marriage law was passed, the legislature rejected comparing the "fault" of the two spouses when deciding entitlement of the claimant spouse to final spousal support. (431) Thus, it may be that the legislature's intent is to authorize implicitly the defense of recrimination in an action for divorce in a covenant marriage without the historically complimentary doctrine of comparative rectitude. The legislature may believe that justice requires a divorce for "fault" be reserved for the "innocent" spouse (not comparatively innocent). If neither spouse is "innocent", then they both must wait the statutory time period of two years before either may obtain a divorce. Relief is available after the expiration of the two- year period which is a humane outcome. However, neither spouse is entitled to relief that adjudges one of them guilty of offensive conduct which broke up the marriage.
The covenant marriage bill as introduced did not include a "no-fault" ground for divorce, (432) which explains why the definition of covenant marriage ignores the possibility that such a marriage could terminate without a total breach of a spouse's marital obligations. (433) Living separate and apart for three years was added to the bill by amendment in the Senate Committee on Judiciary A, but the time period required for living separate and apart was reduced to two years in conference committee before final passage of the bill. (434) Living separate and apart remains a ground for divorce in a "standard" marriage, but the statutory time period is significantly shorter, six months. (435) Nonetheless, jurisprudence interpreting "living separate and apart continuously" applies to both provisions. (436) The two-year period of living separate and apart restores, as Professor Carriere observes, (437) the ground for divorce under Louisiana law from 1938-1979. What is new is that the same statutory period of living apart constitutes a ground for separation from bed and board, (438) thus affording to a spouse who for religious reasons would never seek a divorce a ground for legal separation even if each spouse was guilty of offenses toward the other.
Although a "covenant" spouse can claim the same incidental relief as a spouse in a "standard" marriage, a strong argument can be made that the very existence of a covenant marriage should have greater bearing upon certain incidental relief. A "covenant" marriage should have particular impact upon incidental demands which consider the relevancy of conduct of a spouse or of the strength of the spouses' commitment. Spousal support, both the interim periodic support allowance (439) and final support, (440) as well as child custody are examples of such incidental relief.
An interim allowance awarded to a spouse based upon her needs, his ability to pay and their standard of living during the marriage serves the purpose of maintaining the status quo. (441) In a covenant marriage, at the option of the "innocent" spouse, the status quo as married and also obligated to take steps to preserve the marriage may last as long as two years. The "innocent" spouse who is in need should be awarded a sum to maintain her as nearly as possible at the level of their marital standard of living throughout the entire two-year period. Additionally, if the facts justify its extension, the award should continue for an additional one hundred eighty days after the divorce. (442) The purpose of an interim period in a covenant marriage (443) is to assure that all reasonable steps designed to preserve the marriage have been taken. Maintaining the status quo during the "interim" period in hopes of preserving the marriage guarantees the optimum climate for the serious work of reconciliation. Protection against traumatic economic dislocation to the extent possible, particularly for the "innocent" spouse, is justified because covenant spouses solemnly and deliberately promised a more binding commitment. The existence of a covenant marriage justifies a generous interim allowance for the maximum time allowable.
For final periodic support, the court must consider the factor of fault of the claimant prior to the filing of a proceeding to terminate the marriage. (444) The promises of the covenant couple made after counseling and reflection should be treated as extremely serious; and if one spouse breaches those promises, he should suffer the consequences. (445) Under the jurisprudence prior to 1991, if a spouse obtained a judgment of separation from bed and board on the basis of the fault of the other spouse, the judgment was determinative of whose pre-separation fault caused the dissolution of the marriage. (446) Thus, if a covenant spouse obtains a judgment of separation from the other spouse on the basis of his adultery, the judgment is conclusive as to whose fault caused the separation. The husband may not introduce evidence of his wife's fault prior to the judgment of separation, only evidence of her fault, if any, between the judgment of separation and filing suit for divorce. If the wife is in need based upon the criteria in Article 112 (447) and the husband is able to pay, (448) the court should award her final periodic support. An obvious advantage of obtaining a legal separation on the ground of the other spouse's fault is to determine for purposes of final support whose fault caused the separation.
Even though the jurisprudence previously distinguished between a judgment of separation on grounds of fault and a judgment of divorce for identical reasons, the judiciary should reconsider that distinction in the context of a "covenant" marriage. In Lagars v. Lagars (449) the Louisiana Supreme Court concluded: "[W]hen there has been no judicial separation, a spouse claiming post-divorce alimony in an action for divorce based on adultery is entitled to alimony, if in need, if the claimant spouse obtains a judgment of divorce in his or her favor, unless the other spouse affirmatively defends and proves that the claimant spouse was at fault. We reach this conclusion because when there has been no judicial separation, the divorce is the first fault determination between the parties, and the judgment of divorce based on the adultery of the non-claimant spouse carries with it the implication that the claimant spouse was not at fault...." (450) Lagars was decided after the Louisiana Supreme Court abrogated the defense of recrimination and its corollary principle, comparative rectitude. (451) Therefore, it was possible for a spouse to obtain a divorce from the other spouse on the ground of adultery yet also be guilty of fault. Lagars simply shifted the burden of proof to the spouse against whom the judgment of divorce had been rendered to prove the "alimony-barring" fault of the claimant spouse. If, as has been argued previously, (452) the defense of recrimination is resurrected, (453) then the covenant spouse who obtains a judgment of separation or divorce on the ground of the fault of the other spouse is "innocent" and not at fault. Both judgments should have preclusive effect: a judgment of separation, determinative of whose fault caused the separation; (454) a judgment of divorce, whose fault caused the breakup of the marriage.
Fault of a covenant spouse that constitutes grounds for a separation or divorce should also be considered relevant in decisions relating to child custody, particularly the factor of moral fitness. (455) The purpose of covenant marriage after all was to strengthen marriage; and one of the means to accomplish that objective was society's collective judgment about unacceptable conduct within the marital relationship. The covenant marriage law offers spouses the opportunity to bind themselves to a stronger commitment than the law is willing to impose. By voluntarily undertaking this commitment, permitted because in the interest of children to be born of the union, a covenant spouse accepts society's judgment about his behavior during the marriage. He should also expect consequences should his behavior breach the obligations he solemnly undertook, especially consequences as to his relationship with his children.
Covenant marriage legislation accomplishes the balancing of norms of formation, maintenance, and dissolution. It more stringently regulates the formation of marriage by mandating pre-marital counseling and the execution and filing of documents which require the participation of the counselor and a notary public. (457) By virtue of the contractual provisions in the Declaration of Intent, covenant marriage legislation imposes the duty upon spouses to maintain their marriage, if possible, by taking reasonable steps to preserve it. (458) Last but surely not least, covenant marriage legislation contains more stringent rules of dissolution by divorce. (459) Marriage has been described by Maggie Gallagher as the only truly heroic act most of us can attempt. (460) Easy divorce denies us that opportunity for heroism. Covenant marriage extends the invitation to Louisianans to be heroic, to make a choice that represents a measure of self-sacrifice. (461) Furthermore,
And, to think, Louisiana started the retreat from the precipice.