Covenant marriage recently made headlines when the new Speaker of the House took his position in Washington, D.C. He has one, and so the media tried to figure out just what it was.
They painted covenant marriage as quirky and as weird as they could make it, but the law’s roots are based in a good intention...try to stem the tide of divorces across the land.
"No-Fault" divorce laws are blamed by some for the dwindling permanence of what once was one of our most cherished relationships...the institution of marriage.
So, "covenant marriages," were invented in some states as a legal way to try to “help” couples stay together, with the state getting involved.
If you made marriage covenants, are you in a covenant marriage? Listen in to find out.
As with most laws Bob examines, there are lots of unintended consequences when the government tries to solve something through laws. Divorce law guru and law firm partner Melissa Benson makes her debut on the show to answer the questions. Covenant Marriage: Do you have one? Should you have one? What happens if it blows up?
Covenant marriage recently made headlines when the new Speaker of the House took his position in Washington, D.C. He has one, and so the media tried to figure out just what it was.
They painted covenant marriage as quirky and as weird as they could make it, but the law’s roots are based in a good intention...try to stem the tide of divorces across the land.
"No-Fault" divorce laws are blamed by some for the dwindling permanence of what once was one of our most cherished relationships...the institution of marriage.
So, "covenant marriages," were invented in some states as a legal way to try to “help” couples stay together, with the state getting involved.
If you made marriage covenants, are you in a covenant marriage? Listen in to find out.
As with most laws Bob examines, there are lots of unintended consequences when the government tries to solve something through laws. Divorce law guru and law firm partner Melissa Benson makes her debut on the show to answer the questions. Covenant Marriage: Do you have one? Should you have one? What happens if it blows up?
Bob Sewell:
It's a phrase from popular movies. It's also a question that comes up in our daily life. The question is is that even legal? We talk about the things that drive you crazy, the things you won't believe and the things you need to know and understand. I'm attorney Bob Sewell and this is the podcast. Is that Even Legal? Let's get started. Today's guest on the show is Melissa Benson. Melissa is a family law attorney here in Arizona. Her advice, however, is sought nationally. She's been quoted in the New York Times and she is now on the podcast. Is that Even Legal? So welcome to the show.
Melissa Benson:
Thanks, Bob, thanks for having me.
Bob Sewell:
Melissa, I want to share with you a legal history, legal history story. Back in the day, if you wanted to get a divorce, you had to prove why you were entitled to a divorce. For example, I might say that my spouse was cheating on me or that my spouse had abandoned me. Maybe extreme cruelty, something like this my spouse humiliates me, makes me feel bad or beats on me those are the types of things that entitled you to a divorce. And if you didn't have a divorce, if you didn't have these facts in your marriage or you couldn't prove these facts, you weren't getting a divorce.
Melissa Benson:
Exactly Is this still the case Only if you have a covenant marriage.
Bob Sewell:
Okay tell me. So now we have no fault.
Melissa Benson:
divorce right Right Now you have a no fault divorce. So I can divorce my husband because he leaves his socks on the floor or I don't like the way you guys haircut, or for really any reason or no reason at all.
Bob Sewell:
Okay, that sounds good, I mean, the socks on the floor is a valid reason. I mean, you can't put up with that, melissa, I know.
Melissa Benson:
Right now we're in a toothpaste battle, but that's a whole different story.
Bob Sewell:
All right. So why did we move to no fault divorce?
Melissa Benson:
Because it's so hard to prove those factors. How do you prove that someone really is cheating on you? How do you prove that someone really is beating you, especially with domestic violence, the mental issues that go along with that and the grooming? You don't necessarily have evidence by the time you are ready to get a divorce because we're so ingrained in keeping private matters private. You don't think I need to document this.
Bob Sewell:
Well, I also think the government doesn't need to be inquiring into your marriage, right? If I'm cheating on my spouse and my spouse is cheating on me and I don't want to discuss that with the government, we just want to get a divorce, exactly why would I want the government inquiring? I mean, there's that feeling that that's not the government's business. The government can stay out of the bedroom.
Melissa Benson:
I think that that's a great point. The government needs to stay out of people's bedrooms. The less places the government's involved in our lives, the better.
Bob Sewell:
I want to pivot a little bit, because recently in the news Mike Johnson, new speaker of the House, he's from Arkansas and he decided he wanted a covenant marriage. What's what's going on? Why did the legislatures decide? Well, I guess. First of all, what is a covenant marriage?
Melissa Benson:
So a covenant marriage is. You agree to change from a fault no fault to a fault divorce, and so, instead of being able to divorce for any reason whatsoever, you now have to meet the criteria of one of the I believe it's six or seven criteria, depending on the state that allows you to get divorced. And he actually converted his regular marriage into a no, into a covenant marriage.
Bob Sewell:
So okay, so he can, and he did around his 20th anniversary somewhere on there, right?
Melissa Benson:
Somewhere around there. It was a. It was a wedding anniversary decision.
Bob Sewell:
How romantic I mean I can't write Is honey, let's convert.
Melissa Benson:
We were chicken before, but now but now I like you after 20 years.
Bob Sewell:
I'm ready to make this really commit. You know cook? Okay, I'm not. I shouldn't be. I shouldn't be making fun of that, however. So these are people, you don't have to choose a covenant marriage right.
Melissa Benson:
Right, you have to, actually in Arizona, you have to do premarital counseling and then sign a sworn statement with your marriage license that you agree to change your marriage into a covenant marriage and you're going to do everything you can to prevent yourself from getting divorced and you're going to be bound by only these limited criteria for the divorce.
Bob Sewell:
What's the what's the rationale? Why did the legislature decide this was a good idea?
Melissa Benson:
Well, I can't say why the legislature decided to do anything that the legislature decides to do, but I think it was to say we want to strengthen marriages and make marriages less likely to fail, but you have to decide that that's what you want, so you have to opt in. We're not going to do it statewide, because I don't think that they could have gotten by and to make all marriages fall.
Bob Sewell:
But it's. It's essentially. It's a reaction to the no fault divorce, right? Like, hey, this is bad, everyone's getting divorced. No one values the sanctity of marriage. So we're going to create an avenue for those people who truly believe in marriage, who truly love their spouse. We're going to make this harder for them to get divorced.
Melissa Benson:
Potentially. Yes. It's interesting that the person who championed it had was on her sixth marriage at the time of championing here in Arizona. Yeah, yeah.
Bob Sewell:
She believed in marriage. I mean that if she, she kept trying, she kept trying, she kept trying. Okay, so if you're at number six, you truly believe in marriage, because a lot of people would have given up by number five. I mean, let's just face it, this is so. So these are people that, though, in all seriousness, these are people that feel, like you, that divorce shouldn't just be for any reason. It should be for very specific reasons.
Melissa Benson:
Yes.
Bob Sewell:
Now, what is it gonna take if I am in a covenant marriage? What is it gonna take for me to actually get divorced?
Melissa Benson:
First, you will have to hire a lawyer, because Arizona no longer has self-service forums for people with covenant marriages, so you cannot get a divorce without having an attorney If you have a covenant marriage.
Bob Sewell:
Well, I could get divorced if I knew what to say on my petition right.
Melissa Benson:
But you would have to draft your petition from scratch because they don't have a form that you fill out every other Thing in the court. You have a form. You have a form for a motion. You have a form for a regular divorce. You have a form for a regular response. You have forms to modify. The only thing Arizona doesn't give you a form for is a divorce from a covenant marriage.
Bob Sewell:
Okay, so so the the Arizona Supreme Court, in Maricopa County, and specifically to, has decided we're not going to give you a form To make this easy on you to get divorced, correct, okay?
Melissa Benson:
and then you have to prove one of the criteria listed in the statute Abandonment Improved. Your spouse is imprisoned. You have domestic violence, you have adultery. Consent is one of them. So if we both agree that we don't want to be married anymore, we can both agree to undo our covenant marriage. But aside from consent, the other ones you have to prove to a judge at trial.
Bob Sewell:
So if my wife says you know, bob, you're not as handsome as he used to be, you're not as funny as it used to be, you don't have as much money as he used to have, right, all the things that just happened, I just said, are absolutely true. But if I, if that's what she says, and then she tries to divorce me, no go, I could hold her to this marriage.
Melissa Benson:
If it's a covenant marriage, yes so is this good policy.
Bob Sewell:
I.
Melissa Benson:
Don't. I don't think it's a good policy. I think that we don't want to hold people hostage in their marriages. Why not? Because that likely will lead to some of the issues for a covenant marriage divorce. Oh so if I can't get out because Bob won't let me out, if I start beating Bob, then I can say Now we have domestic violence in our relationship, so I can get out.
Bob Sewell:
Yeah, but but, melissa, let me let me play devil's advocate, advocate with you. We could just live separate and apart. I mean, my wife and I, we went to the altar and we went before God and we said we will be married forever. But no man divide a sunder. That's what we said, right, and and? And who's more important, you know, in this, in this situation, god or or the state? Well, obviously God, right. And so we've done this, we've made this commitment we could just live separate and apart. We don't have to live together. We could not. We have chosen, our course. We could just stay married to each other and have separate lives.
Melissa Benson:
Well, that doesn't really fall into the sanctity of what marriage is supposed to be. And you said you have less money than you had before. How are you gonna afford to separate lives, Bob?
Bob Sewell:
Okay, but seriously seriousness, if that sort of came to, we just didn't get along. You know something happened. You know something. You know Heraclitus. He famously says no man steps into the same river twice. So I am not the same guy I was when I got married 26 years ago.
Melissa Benson:
Yeah, and I am not the same person as when I got married 20 years ago.
Bob Sewell:
So you were just newlywed, you got nothing on me, okay. I know I'm not anywhere close to your 26 years, but but I could, we could have that as an option in an honor of my covenant.
Melissa Benson:
And some people do that, but some people just I've had people tell me I just wanna be divorced, I don't care about anything else, I do not want to be tied to this person anymore and but there's more than just covenant versus non-covenant marriage, divorce versus not divorced right in this state. We have legal separation.
Bob Sewell:
Tell me about that.
Melissa Benson:
So legal separation is essentially? It's essentially the same thing as a divorce, except both parties have to agree. So in a divorce you don't have a choice. If I say I want divorce and it's a non-covenant marriage, then I can get a divorce, whether you like it or not. For legal separation, we both have to agree that we wanna be separated.
Bob Sewell:
So why would I do that? Why would I choose a separation?
Melissa Benson:
Usually, I see it in people who, for religious reasons, don't want to get divorced.
Bob Sewell:
Okay.
Melissa Benson:
Or there is a health issue and they wanna stay on the other parties' health insurance. There's some tax ramifications that don't apply to legal separation versus divorce. I'm not a tax attorney so I don't know what those are. I always tell people to talk to their CPA but generally, aside from the tax implications and the health insurance and the fact that you can't get remarried, legal separation's the same thing as a divorce.
Bob Sewell:
Okay interesting. So, but a person who values marriage, they could have chosen legal separation. They didn't have to go to covenant marriage, right, right.
Melissa Benson:
But you both have to agree. Where, as a covenant marriage, we both agree when we're still in the honeymoon phase and we love each other and this is gonna last forever because we believe everything that the other person's saying to us. Where a legal separation, we have to agree when things are already falling apart.
Bob Sewell:
Well, so that was so cynical, the way you describe that I don't know if I could be around you anymore.
Melissa Benson:
I just I'm sorry, bob. Yeah, I'm actually being my poor husband, yeah you're actually.
Bob Sewell:
I have heard. I haven't met your husband, but I have heard he's quite the saint, very chill guy is that true he is.
Melissa Benson:
my husband is a saint.
Bob Sewell:
He puts up with me, so I always wonder what type of person wants to marry an attorney. It is. We're such miserable people I mean you can't.
Melissa Benson:
I wasn't an attorney 20 years ago when we got married.
Bob Sewell:
Neither was I. I was a dumb high school student. Exactly, wow, high school, a college student, wow. Okay. So how many states do you know have adopted legal, have adopted covenant marriages?
Melissa Benson:
There's only three states that do covenant marriage Arkansas, Louisiana and Arizona. Okay, Interesting.
Bob Sewell:
So this wasn't. It hasn't actually caught on like wildfire.
Melissa Benson:
No, it has not caught on like wildfire. It's actually very small, not even a bonfire.
Bob Sewell:
And I think we did this what Late 80s? Something like that.
Melissa Benson:
I believe it was in the 2000s. It was in the 2000s.
Bob Sewell:
okay, so when did covenant marriage in Arizona happen? When did? When did the legislature adopted?
Melissa Benson:
It was passed into statute in 1998.
Bob Sewell:
So we have we have 25 years that have lapsed, and then are there about 25 years. This hasn't exactly caught on in the rest of the states.
Melissa Benson:
No, not in the rest of the states, and it's very limited amount of people that do covenant marriages in Arizona, or at least that we see. On the divorce side. They're kind of a unicorn. It's not something that we see very often.
Bob Sewell:
So you have seen it before.
Melissa Benson:
I have, and some people have actually had to move states to get divorced because they couldn't prove one other criteria and couldn't get the other party to consent, and so if they leave the state, they can get divorced under the laws of a state that does not have covenant marriage.
Bob Sewell:
So, melissa, the other states that have adopted this tend to be fairly churched states. Right, they tend to be sort of the Bible Belt. Louisiana, arkansas, arizona is more that direction. We tend to have a very religious population. Do you find people are confused by the term covenant marriage Because they say, yeah, I went to the church, I made my covenants.
Melissa Benson:
Sometimes. Sometimes people say it's a covenant marriage and then I asked them more specific questions like did you do premarital counseling? Did you sign a special agreement when you got your marriage license? And that's how we figure out. Other people say I don't know. I don't know what is a covenant marriage, and I say if you don't know what a covenant marriage is, you don't have one.
Bob Sewell:
What's interesting is you mentioned that you haven't seen it. They're kind of unicorns. Is that a testament, necessarily that those who are entering into covenant marriages are staying married?
Melissa Benson:
Not necessarily because there are very few and far between. I believe less than a thousand people have entered into covenant marriages within the last five years in Maricopa County.
Bob Sewell:
Out of how many marriages.
Melissa Benson:
Out of over 100,000.
Bob Sewell:
And you mentioned before that in a no fault divorce situation you could any reason right, you were quoted in the New York Times about any reason you could get a divorce under a no fault divorce right.
Melissa Benson:
Yes, when I talked to the reporter, I told her I could divorce my husband because I don't like the way he gets his hair cut.
Bob Sewell:
Okay. Well, how's my hair? I want to make sure my marriage is not on the rocks, okay.
Melissa Benson:
I think you're fine, bob. Okay, I'll be okay.
Bob Sewell:
I need a haircut right now, but okay, so is this something in seriousness? Is this something that you would recommend to people who are going to sign the marriage contract? They're going to get the license and enter into the marriage contract. Is a covenant marriage something that you would recommend?
Melissa Benson:
No, I think if you want to put these restrictions on your marriage and what you would want to get a divorce you can do that yourself if that's what's in your heart, but we don't need to get the state involved in anything more than necessary or make it more difficult for you to get divorced should you need to.
Bob Sewell:
Hmm, let me take the, let me take the opposite view, just for, just for fun, why not? I mean, if you really believe that your marriage should not ever be divided for any reason, that you should stay married no matter what, even even if you know you guys are miserable together, you should try to figure it out. If that's your value system, why not enter into that covenant marriage? Just know what you're doing. Just know in advance what it's actually all about.
Melissa Benson:
I think, if you're going to do that, you should talk to a divorce attorney so you know what you're going to have to do to get out of it. Should you choose Melissa?
Bob Sewell:
thanks for coming on.
Melissa Benson:
Thanks for having me.
Bob Sewell:
Bob, Thanks for listening to. Is that Even Legal? Remember this isn't legal advice. If you have a legal question for yourself, reach out to an attorney. Remember that we're fun, we're lovable and we are here to help you To my listeners in 62 countries across the world. If you have something you want to explore, email us at produceratevenlegalcom and don't be shy about leaving a review for this podcast on your favorite podcast forum. See you next time.
