Wednesday
Perverse covenant incentives
I’ve never given any thought to the concept of covenant marriage until today, and I’m trying to get a grasp on it despite not knowing a bit of family law. In particular, I don’t see how it actually makes divorce importantly more difficult than no-fault, other than through additional delay and an unspecified amount of counseling. One of the six legal grounds for divorce in the Louisiana version of the statute is, “The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.” La. R.S. 9:307 (a)(3).
So one spouse can just decide to leave, go anywhere they want to for a year, come back, agree to counseling, and then they can get a divorce. Or at least, this is what I thought at first. But it turns out that if the other spouse doesn't care about your abandonment enough to ask for a divorce, you have no grounds to get it. Similarly, I thought originally that the statute created a perverse incentive to commit adultery ((a)(1)), since adultery creates grounds for divorce. But I was wrong, one's own adultery is never a ground for them to request a divorce. Instead, it creates an even worse incentive to be caught committing adultery, and to do so so flagrantly that eventually your spouse can't tolerate it and asks for a divorce themselves. Or commits adultery or a felony in response to your adultery. Are these really the sorts of incentives we want to create?
Is there a change from no-fault as far as the likelihood of the non-covenant breaching party receiving a more economically valuable marriage settlement and more custody rights? There’s nothing about marriage settlements in the material I read. If one accepts the stated goals of people in the covenant marriage movement to avoid creating single-parent or dysfunctional families for the benefit of the children, it's not cleat that the actual institution disincentivizes that in a meaningful way. It seems to just create a way for a supremely tolerant and most likely supremely miserable spouse to avoid divorce forever?
All of the above not withstanding, I think it should be available to people who want it. None of the above negatives overcome a presumption that people should be able to come to voluntary arrangements about their relationship to each other, though there are always issues of what is and is not truly voluntary. Of course if you're the first person who wants it in a particular state, it make take a while for the legislature to pass it.
Also, a point inspired by what Will and Phoebe had to say about covenant marriage: it seems likely that covenant marriage will make normal marriages less special or less sacred or cause whatever devaluation of marriage that gay marriage supposedly would cause.
Very cleverly, Sam Heldman makes the point that being asked to enter a covenant marriage is really insulting, since it means the person asking you thinks their future self is going to need extra special restraints to keep them in the marriage.
Finally, Waddling Thunder adds some historical perspective on the gradations of legal marriage in ancient Rome.
