Covenant Marriage vs Colorado No-Fault Divorce

Man signing prenuptial agreement before wedding.

What Is a Covenant Marriage?

In short, a covenant marriage is a way around a no-fault divorce whereby a couple entering into marriage agrees to make it harder to dissolve the marriage by requiring counseling, specific grounds, or a longer waiting period. Think of it as roughly analogous to a prenuptial agreement, except instead of governing what happens in case of divorce, the goal is to try to prevent divorce.

We do not hear about covenant marriages much, as they are pretty rare. Per Wikipedia, only three states recognize them: ArkansasArizona, and Louisiana. And it’s unlikely to expand to Colorado anytime soon. But when covenant marriage makes the news, we pay attention.

Recently, a woman in Texas asked the U.S. Supreme Court to treat her marriage as a “covenant marriage”, so that the state’s no-fault rules would not apply to a divorce. She argued that because of her and her husband’s Christian beliefs at the beginning of the marriage, the court should essentially defer to those beliefs. Her chances of success are low – Texas is not one of those few states which recognizes covenant marriages.

Fault vs. No-Fault Divorce

Traditional wedding vows include the language “till death us do part”, which itself appears derivative of the Biblical “What therefore God hath joined together, let not man put asunder.” (Mark 10:9).

Even in the west, once you were married, you stayed married until one spouse died, with very limited exception. And even though civil law allows couples to get a divorce, many religions prohibit remarriage within the church if one spouse was divorced (e.g. the Catholic Church will not remarry a divorced person absent an annulment, which critics say is a way for the rich or powerful, such as Sen. Edward Kennedy, to remarry).

In the Anglo-American legal tradition, things began to change in the sixteenth century. People could now get divorced and remarried, at least under the civil law, but they needed to have a good reason to do so. During this period, one could only get a divorce if there was an allegation of some kind of marital infraction. Typical grounds included physical abuse, abandonment, and adultery.

In Colorado, this changed in 1972, when the traditional grounds for divorce were repealed, and we became a no-fault state. Per C.R.S. 14-10-107(2), the ground for a divorce, which must also be alleged in every petition for dissolution of marriage, is that the marriage is “irretrievably broken.” And per subsection (5), the defenses to divorce are abolished.

Now, couples can divorce for any reason (or none at all). The Legislature believed that the old rules trapped a lot of people in bad marriages even if there was no legal basis for calling the marriage “bad”. The hope for many supporters of no-fault divorce was that people trapped in such marriages could be happier in the long run if they could more easily extricate themselves from problem relationships. Unsurprisingly, the divorce rates rose steadily across the country in the 1970s as most states adopted no-fault. The national divorce rate peaked in about 1980, and has been decreasing ever since.

Covenant Marriage To Reduce Divorce Rates 

Exit no-fault divorce, enter Covenant Marriage. Many of the opponents of no-fault divorce believed that the new legal regime in effect encouraged divorce. Where previously a couple going through a rough patch would have worked on the relationship, and may have even come out on the other side all the stronger, now couples could easily throw in the towel and walk away easily. In the minds of these proponents, if couples could bind themselves to a legal system that would incentivize couples working through their differences, the negative social effects of divorce could be lessened. 

How Does Covenant Marriage Work?

In order to qualify for a covenant marriage, a couple generally needs to attend pre-marriage counseling, and then enter into an agreement that removes themselves from the standard no-fault rules. If the couples decide to enter a covenant marriage, in order to get a divorce, one spouse must prove one of the old fault factors, or more modern variants thereof.

In states where covenant marriage exists, the grounds for divorce include adultery, substance abuse, or felony convictions. Also, where in the past abandonment typically meant one spouse leaving the other never to be seen or heard from again (much easier done before modern communications technology or social media), a couple in a Covenant Marriage could get a divorce if they mutually decide to live apart for two or more years depending on the state. 

Covenant Marriage In Colorado?

By and large, covenantal marriages are unlikely to be coming to a court near you. The last state to enact Covenant Marriage was Arizona in 2002. In the states that it exists, it is not terribly popular, with the vast majority of couples sticking with the standard marriage and divorce system. If you happen to have entered into a covenantal marriage, where available, then it is also likely that you need to stay in that state to have the covenant enforced. Given the unpopularity of the system, there hasn’t been much litigation on the subject.

And just because you enter into a covenant marriage in one state, it does not mean another state without covenant marriage will honor it. On the contrary, an Alabama court declined to enforce the provisions of a covenant marriage a couple had entered into in Louisiana. Blackburn.1Blackburn v. Blackburn, 180 So.3d 16 (Ala.Civ.App. 2015). It’s hard to imagine Colorado coming to a different conclusion, should the issue arise here.

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