"Covenant" Marriage Law -Reply

[Mark Tushnet]

It strikes me that, as with many legal "reforms,"
the devil is in the details.

1.  List members might be aware of Lynn Baker &
Robert Emery, "When Every Relationship is Above
Average," 17 Law & Human Behavior 439 (1993):
Applicants for marriage licenses were asked what,
in their view, was the proportion marriages formed
that year that would end in divorce.  The median
answer was the correct one, which was 50% for the
relevant period.  They were then asked a second
question:  What is the chance that *your* marriage
will end in divorce?  Here the median answer was
that the chance was zero.

2.  According to a report on NPR this morning, the
bill contains a provision allowing divorce after a
three-year separation period.  Does the bill also
provide that post-divorce support or alimony
obligations will differ (be increased) if one
spouse is found to have committed adultery?  Or
does it provide for enhanced enforcement of the
state's anti-fornication laws (if there are any)?
It doesn't take a sophisticated tax lawyer to
figure out what advice to give to a spouse who
wishes to leave a convenanted marriage and take up
one of almost all of the life options available to
unmarried people unless the answer to at least one
of those questions is "Yes."

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001

202-662-9106
   (fax) 202-662-9497
tushnet at law.georgetown.edu