11/06/2014 06:05 pm ET | Updated Jan 06, 2015

The Problem With Covenant Marriages and Fault-Based Divorce

On October 30, 2014, I was contacted by a reporter, who asked if I could explain the Arkansas "covenant marriage" law to them. Among other things, if a couple chooses to enter into a "covenant marriage," which limits the grounds available for divorce, they must first receive pre-marital counseling. Arkansas, Arizona and Louisiana are the three states providing the option to enter into such marriages. Unfortunately, as with many things that these and other states do, they have enacted such laws in an effort to "fix" what they erroneously believe to be the problem.

Let's begin with the pre-marital counseling aspect. Depending upon the skill-set of the person providing such counseling and the information covered, pre-marital counseling can be extremely beneficial. However, in order for pre-marital counseling to be helpful, it must cover topics that are known to lead to divorce. Unfortunately, "there is no minimum number of counseling hours required and the content of the counseling is not specified, except that the responsibilities of CM are to be explained."

In my article titled "3 Things a Couple Can Do to Combat the Top Risk Factors and Save a Marriage," I covered some of these issues. The top risk factors for divorce are as follows: (1) quality of interaction; (2) having divorced parents; (3) marrying at a very young age; (4) lack of a college education; and (5) the manner in which a person reacts to problems and disappointments. How does "a discussion of the seriousness of Covenant Marriage" help to combat the top risk factors? It should be noted that Arkansas is included among the youngest-marrying states and has the highest percentage of divorces, with the exception of Nevada. Interestingly enough, "only 20.6% of residents in Arkansas had obtained at least a bachelor's degree in 2013, less than in all but two other states." While Covenant Marriages may make it more difficult to divorce, it certainly does nothing to improve the quality of such marriages.

The good news is that although the couples may not have combated the top risk factors before marrying, they have another opportunity before they are permitted to divorce. Those individuals entering into Covenant Marriages must seek demonstrate that they sought marriage counseling before they can obtain a divorce. Unfortunately, "the entire field of couples therapy suffers from a systemic problem. Couples often resist seeking help until they have been distressed for a long time -- Brian D. Doss, an assistant professor of psychology at the University of Miami, says the average couple is unhappy for six years before seeking couples counseling -- at which point relationship problems are very difficult to fix." Therefore, the mere requirement that the couples attempt marriage counseling before filing for divorce doesn't really address the problem.

Couples entering into Covenant Marriages are essentially reinstating fault-based divorce. For example, in Arkansas, "a couple may seek divorce only for the following reasons: (1) Adultery by the other spouse; (2) Commission of a felony or other infamous crime by the other spouse; and (3) Physical or sexual abuse of the spouse or of a child of either spouse." Interestingly enough, neither emotional nor financial abuse are considered grounds for divorce, among other things.

It should be noted that "arguments against returning fault to divorce include the following: First, returning fault to divorce would cause people to incur far greater legal fees than they already do. That is so because proving fault is very time-consuming, and lawyers' time is very expensive.... Secondly, putting fault back into divorce would certainly require more judgeships. That is so because many more divorce cases would go to trial, where they now settle out of court.... Thirdly, returning fault to divorce would inflict even more trauma and injury on the children of divorcing parents. Children suffer greatly when they hear anyone criticize or denigrate either of their parents. If fault were an issue, the level of disparagement would increase dramatically, which would make the children's problems worse," according to the Honorable Anne Kass.

Don't fret though, because in Arkansas spouses in a Covenant Marriage can divorce on the grounds that they have lived separate and apart for either two or two and a half years, depending upon whether or not the couple has minor children together. For that matter, even those couples in Arkansas who are in traditional marriages must be separated in such a manner for one and one half years to two years, depending upon whether or not they have minor children. Keep in mind that "a family's income needs to increase by almost a third to maintain the pre-divorce standard of living in two households, according to calculations by Andrew Hoffman, a Certified Divorce Financial Analyst." This financial dilemma might certainly discourage people from physically separating in order to meet such a qualification and it will no doubt increase the tension between the spouses.

Furthermore, that doesn't even take into account the issues they may have co-parenting their children during that limbo period. Regardless, this is all done to preserve the sanctity of marriage and to provide a stable environment for children. Sadly, it has the opposite effect. In fact, "while divorce rates did rise as a result of no-fault divorce, domestic violence rates fell by approximately 20 to 30 percent and wives' suicide rate fell by 8 to 13 percent." Therefore, it is no coincidence that South Carolina has both fault-based divorce and the highest rate of domestic violence in the entire United States. Maybe this is why Glenn Smith published an article about the domestic violence problem in South Carolina on August 26, 2014 titled 'Till Death Do Us Part'. It doesn't seem that forcing people to remain in unhappy marriages is the answer.

"Although there may be disagreement regarding whether or not divorce in and of itself is damaging to children, no reasonable person can disagree that the way in which people divorce plays a significant role. All the top researchers in the field have come to the conclusion that it is the way in which people divorce (including what they do or don't tell their children) and the parental conflict that damages children."

On a positive note, family law is state specific and people may divorce anywhere, as long as they meet the residency requirements. Moreover, the laws that apply at the time of divorce are the laws of the state in which the couple divorces. Therefore, people living in such backward states need not remain in unhappy marriages, even if they entered into a Covenant Marriage.

I'm afraid that if you ask the wrong question, you get the wrong answer. I know the Bible Belt would like to believe otherwise, but their beliefs lead to results that are far from family-friendly. Unfortunately, this is only one of an infinite number of examples of the conservative right's flawed logic. Considering our recent election results, God help us is all I can say and I say it with the utmost sarcasm.