So I've been on all three sides of this, sort of. My parents divorced when I was a kid, and I was devastated by it. That made me strongly anti-divorce. When I met my first husband in my early 20s, I was extremely serious about the whole thing, actually looked into covenant marriages, and probably would have chosen the option if it was available in my state. I was all about wanting the life-long vow.
I was also divorced after just a few years, while I was still in my 20s. And *absolutely desperate* to get away from him. To this day, I still occasionally have nightmares where I'm somehow married to him again. That's the whole nightmare, just him being in my life again, yet it is one of the most terrifying ones I have, where I wake up sweating and screaming. I don't need to belabor details, but the marriage was a nuclear level disaster, and divorcing him was the most profoundly relieving and best thing that ever happened, leading to an immediately huge improvement in my life. We didn't have kids, and I see no reason the state should care in that circumstance. But also, I would have easily qualified for a fault-based divorce, so maybe not so relevant to your question. Though I am glad I did not have to go through the legal process and expense of a litigation proving it. That would have cost tens of thousands of dollars that neither of us had, and I was already in the hole from paying his criminal legal fees and bailing his ass out of jail.
So there's me being 1. Anti-divorce and pro-covenant, and 2. Profoundly thankful for cheap no-faukt divorce. Now I'm in position 3, which is that I remarried years later, to a man that it would be almost impossible to describe how much more suited and better we are together, than the first guy who I barely want to remember or acknowledge. My now-husband also had a very short marriage in his 20s. We are extremely happy, have been together for a decade, and this marriage is without exaggeration easily 50x better than the first. In every way. The first one I often wished that either he or I would just die. This one we argue over who got luckier, and who married up, because we both feel so lucky. Thank God we both got divorced to our youthful spouses.
But also, we are no longer naive, so we have a pre-nup, setting forth exactly what will happen and how things will be divided, if things go wrong in the future. And that's what I favor now. Marriages should be like every other contract: binding and enforceable, but you can terminate with penalties for breach. If you breach or unilaterally terminate without cause, you pay damages. It's pretty simple, and you can get that result with a pre-nup. I think they should be required for everyone, using a check the box form where you can select different penalties and circumstances.
The reasons for breaking a covenant marriages are not sufficient. I never imagined I would have a spouse I had to bail out of jail, or who would wear an ankle bracelet and not be allowed to leave the house. Other people don't imagine their spouse will develop a shopping or gambling addiction, and set decades of hard-earned assets on fire. People get addicted to drugs. They do all kinds of unpredictable shit, and ultimately you cannot control someone else's behavior. Plus people are under the influence of a drug we call "being in love" when they decide to marry. Applying standard contract law principles seems like a simple solution. You can walk away, but without a good reason you'll pay a hefty penalty.
I agree with your point that marriage should be like other contracts. If Ossia and Jeff have a small business together and set themselves up as partners yo run a coffeeshop-gallery, they can write a customized contract setting out how much capital and labor each will contribute and what the penalties are for not following through. Let's say the contract requires each party to contribute 20 hours a week of time to work at the coffeeshop, a contract specifying that a shirking party who fails to provide their 20 hours one week would owe the cost of hiring a replacement worker would likely be enforceable under civil law.
However, if Ossia and Jeff get married, it's hard for them to craft a customized marriage agreement. Yes, couples can do customized prenuptial agreements, but judges have shown a willingness to cast these aside if they feel that one side lacked independent legal advice, or if they feel one side was pressured. One factor in the risk of prenuptial agreements being cast aside is that in some jurisdictions, family law judges have a huge degree of discretion in their decisions. This discretion is not necessarily a bad thing, as in some cases, a direct implementation of a law or policy might lead to a legally sound yet unfair result. For example, even though a house purchased by a partner 100% before the marriage (and never lived in by the couple) is normally not considered a marital asset for division, in some jurisdictions, a judge can deem that it is a marital asset. But this discretion does mean that a partner in a marriage that's on its way downhill cannot feel too confident in how things will play out.
Just as Ossia and Jeff can customize the contract for their coffeeshop-gallery business, they should be able to customize--within guardrails set by the state--their marital contract. There should still be guardrails on the customization to prevent people from signing contracts that place them at a great disadvantage. For example, a customized marriage contract should not be able to set zero assets division for minor misconduct, because this will encourage bad actors to use minor missteps as a way to dissolve the marriage without asset division.
I agree with your points about cause. Just as with an employment contract (which is an imperfect analogy, given that a big company with an entire floor of HR law lawyers that hires Bob as a floor sweeper has a huge power asymmetry over Bob, a high school graduate...in contrast, with marriage, partners are more equal) if Party A you terminate with no cause, the Party B gets damages (severance in employment law--for marriage ending, it's half assets and possibly support payments).
If Party A terminates for a serious cause (stealing from cash register in an employment law context; blowing the couples RRSPs on casinos, escorts and cocaine in a marriage contract), then the other party gets less of a payout. It shouldn't be *nothing*, because a modest payout smooths the process of separation if the exiting party who committed the misconduct can afford to move out (e.g., so they can pay first and last month's rent on their new place). Making it binary (big damages for cause, zero damages for no cause) may make purportedly misbehaving party more likely to dig in and fight.
Yes, it's very, very analogizable to business partnerships, and I think it should work mostly the same way. I don't see any good reason for courts to treat marriage contracts as the one potentially non-enforceable type of contract. But I realize not everyone has the resources or inclination to get a lawyer and think through all this carefully, which is why I think there should be basically some simple "check the box" options from a reasonable but not crazy range of options, to make it fairly simple. Things like whether in a divorce you each keep your own 401k/retirement accounts or you split them, things like that. But if you want to get more in-depth you probably still need a lawyer. Still, it's better that way, bc the contract should be enforced no matter where you live. But without one, you're subject to whatever default rules apply in the jurisdiction you happen to live in when someone files...which is ridiculous because each state is different and no one decides where to live based on the divorce laws. Yet you could end up with an entirely different result just because you happened to move from California to Texas a couple years before a spouse files divorce papers.
The other difficulty is that bad behavior can be difficult to prove. That's my biggest objection to fault based divorce, is it incentivizes being sneaky on both sides, to either hide proof of bad behavior, or to be secretly gathering it, because you actually have to have evidence to prove your claim.
Re:fault...the employment law analogy is helpful here. Under employment law the employer can break the contract with no penalty (severance) if the employee is fired with cause. But for the employee to be fired with cause, they have do do something bad enough (or an equivalent accumulation of lesser bad behavior) to satisfy an employment tribunal that it warrants this treatment. So s thrify employer can't avoid severance just by finding some minor misstep and trying to fire with cause.
With marriage contracts, I agree with you that we don't want family law courts spending days dredging through texts and emails. There should be a line that has to be crossed for the spouse's bad behavior to be deemed to be a fault. It's easy to set out a case of this line bring crossed. I'll give two. Husband A burns through the couple's retirement nest egg at casinos across the state. Or Husband B has longstanding sexual relationships with multiple partners and gives them lavish gifts (using marital assets).
Those extreme examples are clear cases of breaching the marital contract and the expectations of trust. However, where to draw the line on lesser misbehavior is harder to judge. What if Husband A had one boozy bender at the casino and burned through one joint account? What if Husband B has a single week-long fling with a neighbor?
Wow, crazy story and glad you found your current husband ❤️ Your example highlights how our youthful confidence can lead to bad decisions in this area (and just that people can drastically change after marriage) and being forced to stay in a bad marriage seems really awful to me - as I said, it doesn’t seem unreasonable to be a little paternalistic here. It’s normal for young people to have more absolute investment in their beliefs and ideologies… there are so many things I thought were beyond obvious when I was in my early 20s that I later came to doubt and can see how a version of me would’ve been like… why would I need an option to get divorced?
When I talked about this with Alex Kaschuta she also made the point that a lot of “no fault” divorces have plenty of fault and the “no fault” option just allows you to leave without so many hoops to jump through.
I also was very happy to have relatively simple and inexpensive divorce available to me - but while I definitely didn’t “believe in divorce” when I first got married (I didn’t have any divorced relatives also so it seemed very deviant to me) I *probably* wouldn’t have pulled the trigger if the only option on the table was a covenant marriage (and definitely wouldn’t have upgraded it.)
As for the prenup thing I also used to be super anti but I have largely been convinced otherwise by the other lawyer who engages with me online lol (Wesley Fenza). I probably wouldn’t take it as far as you suggest and make it mandatory, but only because I think the “standard prenup” that you implicitly get with the marriage contract isn’t a bad one and I like reducing process costs for people - but you proposal would have the added benefit of making sure people understand the contract they’re signing even if they stick with the “implicit prenup”.
I think freedom of choice gets fuzzy, and perhaps even inverted, when it refers to a freedom to limit your future choices. It certainly doesn't feel like freedom to the future person being constrained.
It's one thing to make a conditional agreement with someone that exposes you to some future consequence if you don't hold up your end of the bargain: "if you file for divorce without cause, you will have to pay XYZ penalty, etc." We can debate what penalties are fair - child support seems fair? - and as you said, that echoes the bankruptcy debates, especially about discharging college loans.
But it's another thing to foreclose a future option entirely. That feels like a different kind of paternalism: is the state (or often, the church) insisting that it - or, past you - knows better than current you about what's best for you? Or that the state/pastor can judge your moral obligations to your spouse better than you can? "You're not allowed to do X unless you present me enough evidence to justify it by my standards" can't hardly be framed as the *less* paternalistic position. How can restricting people from changing their minds and trapping them in unwanted legal arrangements for the rest of their lives be pro-freedom?
To use an extreme example, we don't allow people to voluntarily sell themselves into lifelong slavery: some rights are eternal and cannot be preemptively waived. Maybe who you choose to spend the rest of your life with is one of those.
Thanks, Andrew! I largely agree. But also would note that future you could still move out and effectively break up with your partner without getting a divorce - of course they would retain some rights to your information etc but those could be framed as penalties XYZ.
I think that, in a way no-fault divorce should theoretically improve marriage quality overall. The reason being that even leaving open the possibility of being blindsided by an unwanted divorce ought to encourage better bevavior and more relationship investment on the part of both parties to prevent such.
Phrased another way, there plenty of 1950s era marriages were made up of two people who didn't put much effort into the marriage because they knew their spouse couldn't divorce them anyway. Keeping no-fault the standard at least aligns the incentives better.
I agree with this. Many rose tinted glasses these days, but it is obvious how many more couples just used to blatantly hate each other back in the day.
Yeah I largely agree but I do find it interesting that people opt in and also buy that there are other benefits that come with the security. Clearly there’s a balance to be struck otherwise we wouldn’t get married at all so that we could keep our partner on their toes even more.
I think the alternate view also comes down to a far more community centric and less individualistic worldview. More focus placed on how marriages staying together benefit your larger family, kids, community and less on how in love and happy you feel day to day.
Regan, I think that this is true that there may be some perceived benefits and security; in reality many of these benefits are illusory. The reason covinent marriage exists is because several people in the United States take Matthew 19:9, 1 Corinthians 7:13-16, 1 Timothy 5:8 literally using those verses among others as a guide to public policy.
What is telling is that only in three states has this model of marriage been adopted - Louisiana, Arkansas, and Arizona are admittedly conservative states but think of all the Bible Belt states that never bothered to adopt it - and further consider that covenant marriage has been around for 20 years and there doesn't seem to be much of a push to adopt it. Even in the states that have it only 1-3% are such marriages.
I think that there are some benefits to two different groups. The first are fundamentalists who truely have a covinental view of marriage. That noted, most fundamentalists will also take seriously what the Bible teaches about membership in a local church, submission to its authority, church discipline - the upshot being the public shaming and communal stigma for most divorces will be a greater disincentive than anything the law can affect.
The other are nervous young people anxious that their spouse will change and that they will be blindsided by an unwanted divorce. To a degree such a restrictive covinent may act as a palliative to cure the angst of a young bride or groom. This begs the the question though if someone who goes into marriage with this mindset is mature enough to marry to begin with. Maybe if we are being cynical it could be argued that states with covinent marriage might encourage younger marriage and in so doing increase the fertility rate; I would be curious if the ages on covinent marriages skew younger though i bet the data set availableis fairly constrained.
The final, theoretical benefit would be as a form of protection in marriages where one partner enters the marriage with significantly more assets than the other.
In reality, a covinent marriage can easily be dissolved in the same way marriages were in the 1950s - by traveling to a state without them, establishing residence, and divorcing under the laws of that state. As such someone truly savy will know that it wouldn't be a reliable form of asset protection.
My sense is that excluding (or taxing) an outcome can improve the game theoretic outcome. Simple prisoners dilemma game can make this point with high or low relationship effort: if your increase the cost of low/low, you'll increase likelihood of the high/high effort outcome. If low/low is less costly prisoner dilemma logic kicks in (low/low effort is a dominant strategy).
There is also a higher willingness to pay upfront costs to ensure a good match if the exit costs are higher. Society and people are better off with higher quality marriages, of longer duration. Costlier exit means better screening up front, more incentive for effort and slower exit in stress. Not saying that no one should ever leave a marriage, but many couples have bad periods and are happy they stay.
My blatantly paternalistic view is that recency bias makes people very bad at calculating long term costs of divorce. Making divorce more immediately painful makes the long term loss more imminent. It adds more pain to some bad situations, but if it avoids some marginal divorces, it is probably making the decision making more rational. Basically we should put a social weighing on negative outcomes where participants don't fully observe costs.
Final point, if one person thinks the other is hedging financially, sexually or emotionally, and the view on marriage is weak, the natural response is to hedge as well. Basically, thinking your partner is not fully committed is rational reason to do so yourself which is unstable. High cost to cheat and exit leads less actual and perceived hedging.
I have a covenant marriage, so I'm either bias or practicing what I preach.
Oh wow! I had never even heard of the concept before but find it interesting as an option. Thanks for the comment - I am thinking through your points, but in general agree that marriage seems to be socially beneficial, and that higher costs means more upfront screening and fewer divorces (but also fewer marriages all else equal).
I think where my intuition diverges is on the degree to which the social benefit comes from permanent marriages vs just long marriages… like I don’t see a massive social difference in a couple who is married for 30 years and raises kids and eventually breaks up because they’re no longer finding the partnership to be mutually beneficial etc vs if they stay together.
And my bias is that if I hadn’t been able to leave my marriage I wouldn’t have been able to find someone else who is more compatible in terms of socially relevant goals like having children. But I also probably would not have gotten married if I knew I could only divorce in extreme circumstances! And the other consideration is that I think a marriage which fails can still be a better situation than the marriage never happening and then the couple breaking up in terms of providing some risk reduction (depending how you look at it) in how finances will be dealt with etc.
A few thoughts: Divorces of long married couples with adult children are interesting. Typically they've been damaged for years at that point. One sided divorces are pretty ugly at that point with one party feeling incredibly burnt after putting in decades of effort. On the positive side, old married couples can be an incredible source of strength for a community; there is a team/service vibe that has excess capacity once the kids have left the house.
There is sort of a "what is marriage" thing which becomes more distinct with costlier divorce. I don't think couples will lose much by continuing to be an unmarried couple. If you want you start a family, you want someone to have a fairly robust commitment. There isn't all that much reason for a young person to marry if they aren't interested in children. I think it's viewed as "super in love" status, when marriage is less about eros and more a pragmatic social partnership. If a couple has multiple years of fun time together with lots of eros and friendship, that's really fun. Eventually you have the conversation, what's the point... the telos of the relationship (all of this assumes modern Western cultural norms). I think marriage should be that point: we want to build pragmatic purpose from this relationship, a union of families and tribes. (My in-laws are as much family as my family of origin. My grandfather was buried on his brother in laws plot despite divorcing my grandmother.) This doesn't detract from the experience of the "super in love" couple, it is of a different category.
I really like this comment and hearing your perspective on marriage, especially because a lot of people I engage with are more in the rationalist space or libertarian space and I have less exposure to thoughtful conservatives.
I do see marriage as being primarily a vehicle for building families, but even without kids I think it can serve a purpose by providing enough security that they can invest in one another. For example, who wants to move for their spouses job if they don’t share equally in the financial success that the move will generate. But when kids are added to the picture there are many more opportunities for positive sum division of labor etc.
Covenant marriages remind me of the whole "luxury beliefs" slander. High-human-capital elites can probably make it work; it's no accident that the educated PMC has lower divorce rates.
But for low human capital... it seems like covenant marriage laws act more like those laws that allow minors to be married: (1) They give religious extremists a legal shield for abusive practices we wouldn't otherwise tolerate, and (2) lower-SES people who might benefit already have enough problems that they don't actually realize the same benefits that high-SES elites do.
Ultimately, I'm for maximizing liberty and self-determination, so if the good people of various states want to decide to give themselves this option, then I don't believe in expending political capital to stop them. To the extent that this enables religious extremists, well, the abusive ones should be investigated and prosecuted anyways.
But I'm also not going to expend political capital on normalizing covenant marriage at even
an admittedly relatively slight expense to the lower class, just so elites can pat themselves on the back and achieve higher self-actualization. If you want actualization, meditate and get a counselor -- that's what I do. The lack of covenant marriage isn't one of those "lurking moral crises" that demands we take action on it.
I think this is closer to where I am. I'm generally for maximizing liberty and self-determination. I also think there's an interesting way where covenant marriages open up the general conversation about "what marriage is" and to another commenter's point allow for more customization of the marriage contract.
My prior is that most people will be well served by the default, standard no-fault divorce marriage contract. But creating cheaper options for people who don't want that, in either direction, seems like a good thing.
I do think we have to contend with “too much of a good thing”, though. One of the central problems of the modern world is the paradox of choice overwhelming our ability to evaluate too many available options.
So, I think there’s a space between “liberty” and “choice” that we have to balance.
I honestly really struggle with that balance. On the one hand, I want to be able to offer choices and options to those who want them, and for those who don't, that's perfectly fine; they should stick with their defaults. Regan's pieces on gender convinced me that the defaults can work quite well for most people.
But it seems like even offering the choice in the first place can trap people who, by their own measure, should be using the defaults to try alternatives and never getting to their best equilibrium. I don't totally understand why it works out that way, but it seems to be a reality.
In a way it would be a freer society if you could choose to sell yourself into slavery, but there are certain conditions society does not allow you to enter into -- at least not that will be enforced by the state. I support that degree of paternalism. No one can force two adults to keep living together, so it seems like a covenantal marriage gone sour could just be some messy legal entanglement.
I wonder if the state should be in the marriage business at all. Someone in the informal role of "spouse" who lives with you who earns little or no money could be a dependent for tax purposes. Recent US trends are that marriage is a luxury for the rich, and those in the working class and below don't get married even if they live together. For the more well off, I toy with ideas like a civil contract with a "security deposit" of many thousands of dollars. If one wants to stay and the other insists on leaving, the first party gets the security deposit?
Definitely the government should be in the business of enforcing child support payments, however.
I think it depends on what you think the social value of marriage is and how much you think the state can and should encourage it. I think the social value is probably pretty good, I want to encourage people to partner up for long enough to have and raise kids but that doesn’t have to mean they’re in never ending religious marriages. I think tax incentives are a reasonable and positive way to encourage marriage and I think marriage provides some insurance for partners who invest a lot in the relationship (i.e. stay at home moms or primary caretakers who haven’t been able to advance their careers as much given home responsibilities).
Surely the idea of marriage would strongly persist due to the culture. And if the goal is to encourage children, then perhaps do that more directly. The government supports marriages that are childless by choice too. I do concede your point about it being insurance for stay-at-home partners to some extent, but even there it seems like a very blunt instrument.
But doing away with state-recognized marriage is perhaps outside the Overton window and not worth getting stuck on.
To my surprise, according to the latest data that I've seen, less than 5% (1-3%) of newly married couples take advantage of covenant marriages in the states in which that option is offered.
I make the assumption that few of us get married with the intention of getting divorced. Yet there appears to be a strong bias against entering into a marriage contract that would require a high level of partner malfeasance to exit.
Given current statistics, states that were able to eliminate no fault divorce would likely depress marriage rates and prompt couples, or individuals, to relocate to other jurisdictions to execute divorces. I'm old enough to remember when that was a thing.
A minor point, but I didn't see it mentioned: divorce still happened prior to no-fault, so the question is, given the optimal rate is non-zero, was it too infrequent 🤷♂️
Yes, and do we want to come up with an objective standard for judging when the conditions are bad enough to end the marriage or leave that decision to the individuals involved without demanding any sort of proof
So I've been on all three sides of this, sort of. My parents divorced when I was a kid, and I was devastated by it. That made me strongly anti-divorce. When I met my first husband in my early 20s, I was extremely serious about the whole thing, actually looked into covenant marriages, and probably would have chosen the option if it was available in my state. I was all about wanting the life-long vow.
I was also divorced after just a few years, while I was still in my 20s. And *absolutely desperate* to get away from him. To this day, I still occasionally have nightmares where I'm somehow married to him again. That's the whole nightmare, just him being in my life again, yet it is one of the most terrifying ones I have, where I wake up sweating and screaming. I don't need to belabor details, but the marriage was a nuclear level disaster, and divorcing him was the most profoundly relieving and best thing that ever happened, leading to an immediately huge improvement in my life. We didn't have kids, and I see no reason the state should care in that circumstance. But also, I would have easily qualified for a fault-based divorce, so maybe not so relevant to your question. Though I am glad I did not have to go through the legal process and expense of a litigation proving it. That would have cost tens of thousands of dollars that neither of us had, and I was already in the hole from paying his criminal legal fees and bailing his ass out of jail.
So there's me being 1. Anti-divorce and pro-covenant, and 2. Profoundly thankful for cheap no-faukt divorce. Now I'm in position 3, which is that I remarried years later, to a man that it would be almost impossible to describe how much more suited and better we are together, than the first guy who I barely want to remember or acknowledge. My now-husband also had a very short marriage in his 20s. We are extremely happy, have been together for a decade, and this marriage is without exaggeration easily 50x better than the first. In every way. The first one I often wished that either he or I would just die. This one we argue over who got luckier, and who married up, because we both feel so lucky. Thank God we both got divorced to our youthful spouses.
But also, we are no longer naive, so we have a pre-nup, setting forth exactly what will happen and how things will be divided, if things go wrong in the future. And that's what I favor now. Marriages should be like every other contract: binding and enforceable, but you can terminate with penalties for breach. If you breach or unilaterally terminate without cause, you pay damages. It's pretty simple, and you can get that result with a pre-nup. I think they should be required for everyone, using a check the box form where you can select different penalties and circumstances.
The reasons for breaking a covenant marriages are not sufficient. I never imagined I would have a spouse I had to bail out of jail, or who would wear an ankle bracelet and not be allowed to leave the house. Other people don't imagine their spouse will develop a shopping or gambling addiction, and set decades of hard-earned assets on fire. People get addicted to drugs. They do all kinds of unpredictable shit, and ultimately you cannot control someone else's behavior. Plus people are under the influence of a drug we call "being in love" when they decide to marry. Applying standard contract law principles seems like a simple solution. You can walk away, but without a good reason you'll pay a hefty penalty.
I agree with your point that marriage should be like other contracts. If Ossia and Jeff have a small business together and set themselves up as partners yo run a coffeeshop-gallery, they can write a customized contract setting out how much capital and labor each will contribute and what the penalties are for not following through. Let's say the contract requires each party to contribute 20 hours a week of time to work at the coffeeshop, a contract specifying that a shirking party who fails to provide their 20 hours one week would owe the cost of hiring a replacement worker would likely be enforceable under civil law.
However, if Ossia and Jeff get married, it's hard for them to craft a customized marriage agreement. Yes, couples can do customized prenuptial agreements, but judges have shown a willingness to cast these aside if they feel that one side lacked independent legal advice, or if they feel one side was pressured. One factor in the risk of prenuptial agreements being cast aside is that in some jurisdictions, family law judges have a huge degree of discretion in their decisions. This discretion is not necessarily a bad thing, as in some cases, a direct implementation of a law or policy might lead to a legally sound yet unfair result. For example, even though a house purchased by a partner 100% before the marriage (and never lived in by the couple) is normally not considered a marital asset for division, in some jurisdictions, a judge can deem that it is a marital asset. But this discretion does mean that a partner in a marriage that's on its way downhill cannot feel too confident in how things will play out.
Just as Ossia and Jeff can customize the contract for their coffeeshop-gallery business, they should be able to customize--within guardrails set by the state--their marital contract. There should still be guardrails on the customization to prevent people from signing contracts that place them at a great disadvantage. For example, a customized marriage contract should not be able to set zero assets division for minor misconduct, because this will encourage bad actors to use minor missteps as a way to dissolve the marriage without asset division.
I agree with your points about cause. Just as with an employment contract (which is an imperfect analogy, given that a big company with an entire floor of HR law lawyers that hires Bob as a floor sweeper has a huge power asymmetry over Bob, a high school graduate...in contrast, with marriage, partners are more equal) if Party A you terminate with no cause, the Party B gets damages (severance in employment law--for marriage ending, it's half assets and possibly support payments).
If Party A terminates for a serious cause (stealing from cash register in an employment law context; blowing the couples RRSPs on casinos, escorts and cocaine in a marriage contract), then the other party gets less of a payout. It shouldn't be *nothing*, because a modest payout smooths the process of separation if the exiting party who committed the misconduct can afford to move out (e.g., so they can pay first and last month's rent on their new place). Making it binary (big damages for cause, zero damages for no cause) may make purportedly misbehaving party more likely to dig in and fight.
Yes, it's very, very analogizable to business partnerships, and I think it should work mostly the same way. I don't see any good reason for courts to treat marriage contracts as the one potentially non-enforceable type of contract. But I realize not everyone has the resources or inclination to get a lawyer and think through all this carefully, which is why I think there should be basically some simple "check the box" options from a reasonable but not crazy range of options, to make it fairly simple. Things like whether in a divorce you each keep your own 401k/retirement accounts or you split them, things like that. But if you want to get more in-depth you probably still need a lawyer. Still, it's better that way, bc the contract should be enforced no matter where you live. But without one, you're subject to whatever default rules apply in the jurisdiction you happen to live in when someone files...which is ridiculous because each state is different and no one decides where to live based on the divorce laws. Yet you could end up with an entirely different result just because you happened to move from California to Texas a couple years before a spouse files divorce papers.
The other difficulty is that bad behavior can be difficult to prove. That's my biggest objection to fault based divorce, is it incentivizes being sneaky on both sides, to either hide proof of bad behavior, or to be secretly gathering it, because you actually have to have evidence to prove your claim.
Re:fault...the employment law analogy is helpful here. Under employment law the employer can break the contract with no penalty (severance) if the employee is fired with cause. But for the employee to be fired with cause, they have do do something bad enough (or an equivalent accumulation of lesser bad behavior) to satisfy an employment tribunal that it warrants this treatment. So s thrify employer can't avoid severance just by finding some minor misstep and trying to fire with cause.
With marriage contracts, I agree with you that we don't want family law courts spending days dredging through texts and emails. There should be a line that has to be crossed for the spouse's bad behavior to be deemed to be a fault. It's easy to set out a case of this line bring crossed. I'll give two. Husband A burns through the couple's retirement nest egg at casinos across the state. Or Husband B has longstanding sexual relationships with multiple partners and gives them lavish gifts (using marital assets).
Those extreme examples are clear cases of breaching the marital contract and the expectations of trust. However, where to draw the line on lesser misbehavior is harder to judge. What if Husband A had one boozy bender at the casino and burned through one joint account? What if Husband B has a single week-long fling with a neighbor?
Wow, crazy story and glad you found your current husband ❤️ Your example highlights how our youthful confidence can lead to bad decisions in this area (and just that people can drastically change after marriage) and being forced to stay in a bad marriage seems really awful to me - as I said, it doesn’t seem unreasonable to be a little paternalistic here. It’s normal for young people to have more absolute investment in their beliefs and ideologies… there are so many things I thought were beyond obvious when I was in my early 20s that I later came to doubt and can see how a version of me would’ve been like… why would I need an option to get divorced?
When I talked about this with Alex Kaschuta she also made the point that a lot of “no fault” divorces have plenty of fault and the “no fault” option just allows you to leave without so many hoops to jump through.
I also was very happy to have relatively simple and inexpensive divorce available to me - but while I definitely didn’t “believe in divorce” when I first got married (I didn’t have any divorced relatives also so it seemed very deviant to me) I *probably* wouldn’t have pulled the trigger if the only option on the table was a covenant marriage (and definitely wouldn’t have upgraded it.)
As for the prenup thing I also used to be super anti but I have largely been convinced otherwise by the other lawyer who engages with me online lol (Wesley Fenza). I probably wouldn’t take it as far as you suggest and make it mandatory, but only because I think the “standard prenup” that you implicitly get with the marriage contract isn’t a bad one and I like reducing process costs for people - but you proposal would have the added benefit of making sure people understand the contract they’re signing even if they stick with the “implicit prenup”.
I think freedom of choice gets fuzzy, and perhaps even inverted, when it refers to a freedom to limit your future choices. It certainly doesn't feel like freedom to the future person being constrained.
It's one thing to make a conditional agreement with someone that exposes you to some future consequence if you don't hold up your end of the bargain: "if you file for divorce without cause, you will have to pay XYZ penalty, etc." We can debate what penalties are fair - child support seems fair? - and as you said, that echoes the bankruptcy debates, especially about discharging college loans.
But it's another thing to foreclose a future option entirely. That feels like a different kind of paternalism: is the state (or often, the church) insisting that it - or, past you - knows better than current you about what's best for you? Or that the state/pastor can judge your moral obligations to your spouse better than you can? "You're not allowed to do X unless you present me enough evidence to justify it by my standards" can't hardly be framed as the *less* paternalistic position. How can restricting people from changing their minds and trapping them in unwanted legal arrangements for the rest of their lives be pro-freedom?
To use an extreme example, we don't allow people to voluntarily sell themselves into lifelong slavery: some rights are eternal and cannot be preemptively waived. Maybe who you choose to spend the rest of your life with is one of those.
Thanks, Andrew! I largely agree. But also would note that future you could still move out and effectively break up with your partner without getting a divorce - of course they would retain some rights to your information etc but those could be framed as penalties XYZ.
I think that, in a way no-fault divorce should theoretically improve marriage quality overall. The reason being that even leaving open the possibility of being blindsided by an unwanted divorce ought to encourage better bevavior and more relationship investment on the part of both parties to prevent such.
Phrased another way, there plenty of 1950s era marriages were made up of two people who didn't put much effort into the marriage because they knew their spouse couldn't divorce them anyway. Keeping no-fault the standard at least aligns the incentives better.
I agree with this. Many rose tinted glasses these days, but it is obvious how many more couples just used to blatantly hate each other back in the day.
Yeah I largely agree but I do find it interesting that people opt in and also buy that there are other benefits that come with the security. Clearly there’s a balance to be struck otherwise we wouldn’t get married at all so that we could keep our partner on their toes even more.
I think the alternate view also comes down to a far more community centric and less individualistic worldview. More focus placed on how marriages staying together benefit your larger family, kids, community and less on how in love and happy you feel day to day.
Regan, I think that this is true that there may be some perceived benefits and security; in reality many of these benefits are illusory. The reason covinent marriage exists is because several people in the United States take Matthew 19:9, 1 Corinthians 7:13-16, 1 Timothy 5:8 literally using those verses among others as a guide to public policy.
What is telling is that only in three states has this model of marriage been adopted - Louisiana, Arkansas, and Arizona are admittedly conservative states but think of all the Bible Belt states that never bothered to adopt it - and further consider that covenant marriage has been around for 20 years and there doesn't seem to be much of a push to adopt it. Even in the states that have it only 1-3% are such marriages.
I think that there are some benefits to two different groups. The first are fundamentalists who truely have a covinental view of marriage. That noted, most fundamentalists will also take seriously what the Bible teaches about membership in a local church, submission to its authority, church discipline - the upshot being the public shaming and communal stigma for most divorces will be a greater disincentive than anything the law can affect.
The other are nervous young people anxious that their spouse will change and that they will be blindsided by an unwanted divorce. To a degree such a restrictive covinent may act as a palliative to cure the angst of a young bride or groom. This begs the the question though if someone who goes into marriage with this mindset is mature enough to marry to begin with. Maybe if we are being cynical it could be argued that states with covinent marriage might encourage younger marriage and in so doing increase the fertility rate; I would be curious if the ages on covinent marriages skew younger though i bet the data set availableis fairly constrained.
The final, theoretical benefit would be as a form of protection in marriages where one partner enters the marriage with significantly more assets than the other.
In reality, a covinent marriage can easily be dissolved in the same way marriages were in the 1950s - by traveling to a state without them, establishing residence, and divorcing under the laws of that state. As such someone truly savy will know that it wouldn't be a reliable form of asset protection.
My sense is that excluding (or taxing) an outcome can improve the game theoretic outcome. Simple prisoners dilemma game can make this point with high or low relationship effort: if your increase the cost of low/low, you'll increase likelihood of the high/high effort outcome. If low/low is less costly prisoner dilemma logic kicks in (low/low effort is a dominant strategy).
There is also a higher willingness to pay upfront costs to ensure a good match if the exit costs are higher. Society and people are better off with higher quality marriages, of longer duration. Costlier exit means better screening up front, more incentive for effort and slower exit in stress. Not saying that no one should ever leave a marriage, but many couples have bad periods and are happy they stay.
My blatantly paternalistic view is that recency bias makes people very bad at calculating long term costs of divorce. Making divorce more immediately painful makes the long term loss more imminent. It adds more pain to some bad situations, but if it avoids some marginal divorces, it is probably making the decision making more rational. Basically we should put a social weighing on negative outcomes where participants don't fully observe costs.
Final point, if one person thinks the other is hedging financially, sexually or emotionally, and the view on marriage is weak, the natural response is to hedge as well. Basically, thinking your partner is not fully committed is rational reason to do so yourself which is unstable. High cost to cheat and exit leads less actual and perceived hedging.
I have a covenant marriage, so I'm either bias or practicing what I preach.
Oh wow! I had never even heard of the concept before but find it interesting as an option. Thanks for the comment - I am thinking through your points, but in general agree that marriage seems to be socially beneficial, and that higher costs means more upfront screening and fewer divorces (but also fewer marriages all else equal).
I think where my intuition diverges is on the degree to which the social benefit comes from permanent marriages vs just long marriages… like I don’t see a massive social difference in a couple who is married for 30 years and raises kids and eventually breaks up because they’re no longer finding the partnership to be mutually beneficial etc vs if they stay together.
And my bias is that if I hadn’t been able to leave my marriage I wouldn’t have been able to find someone else who is more compatible in terms of socially relevant goals like having children. But I also probably would not have gotten married if I knew I could only divorce in extreme circumstances! And the other consideration is that I think a marriage which fails can still be a better situation than the marriage never happening and then the couple breaking up in terms of providing some risk reduction (depending how you look at it) in how finances will be dealt with etc.
A few thoughts: Divorces of long married couples with adult children are interesting. Typically they've been damaged for years at that point. One sided divorces are pretty ugly at that point with one party feeling incredibly burnt after putting in decades of effort. On the positive side, old married couples can be an incredible source of strength for a community; there is a team/service vibe that has excess capacity once the kids have left the house.
There is sort of a "what is marriage" thing which becomes more distinct with costlier divorce. I don't think couples will lose much by continuing to be an unmarried couple. If you want you start a family, you want someone to have a fairly robust commitment. There isn't all that much reason for a young person to marry if they aren't interested in children. I think it's viewed as "super in love" status, when marriage is less about eros and more a pragmatic social partnership. If a couple has multiple years of fun time together with lots of eros and friendship, that's really fun. Eventually you have the conversation, what's the point... the telos of the relationship (all of this assumes modern Western cultural norms). I think marriage should be that point: we want to build pragmatic purpose from this relationship, a union of families and tribes. (My in-laws are as much family as my family of origin. My grandfather was buried on his brother in laws plot despite divorcing my grandmother.) This doesn't detract from the experience of the "super in love" couple, it is of a different category.
I really like this comment and hearing your perspective on marriage, especially because a lot of people I engage with are more in the rationalist space or libertarian space and I have less exposure to thoughtful conservatives.
I do see marriage as being primarily a vehicle for building families, but even without kids I think it can serve a purpose by providing enough security that they can invest in one another. For example, who wants to move for their spouses job if they don’t share equally in the financial success that the move will generate. But when kids are added to the picture there are many more opportunities for positive sum division of labor etc.
Covenant marriages remind me of the whole "luxury beliefs" slander. High-human-capital elites can probably make it work; it's no accident that the educated PMC has lower divorce rates.
But for low human capital... it seems like covenant marriage laws act more like those laws that allow minors to be married: (1) They give religious extremists a legal shield for abusive practices we wouldn't otherwise tolerate, and (2) lower-SES people who might benefit already have enough problems that they don't actually realize the same benefits that high-SES elites do.
Ultimately, I'm for maximizing liberty and self-determination, so if the good people of various states want to decide to give themselves this option, then I don't believe in expending political capital to stop them. To the extent that this enables religious extremists, well, the abusive ones should be investigated and prosecuted anyways.
But I'm also not going to expend political capital on normalizing covenant marriage at even
an admittedly relatively slight expense to the lower class, just so elites can pat themselves on the back and achieve higher self-actualization. If you want actualization, meditate and get a counselor -- that's what I do. The lack of covenant marriage isn't one of those "lurking moral crises" that demands we take action on it.
I think this is closer to where I am. I'm generally for maximizing liberty and self-determination. I also think there's an interesting way where covenant marriages open up the general conversation about "what marriage is" and to another commenter's point allow for more customization of the marriage contract.
My prior is that most people will be well served by the default, standard no-fault divorce marriage contract. But creating cheaper options for people who don't want that, in either direction, seems like a good thing.
I do think we have to contend with “too much of a good thing”, though. One of the central problems of the modern world is the paradox of choice overwhelming our ability to evaluate too many available options.
So, I think there’s a space between “liberty” and “choice” that we have to balance.
I honestly really struggle with that balance. On the one hand, I want to be able to offer choices and options to those who want them, and for those who don't, that's perfectly fine; they should stick with their defaults. Regan's pieces on gender convinced me that the defaults can work quite well for most people.
But it seems like even offering the choice in the first place can trap people who, by their own measure, should be using the defaults to try alternatives and never getting to their best equilibrium. I don't totally understand why it works out that way, but it seems to be a reality.
In a way it would be a freer society if you could choose to sell yourself into slavery, but there are certain conditions society does not allow you to enter into -- at least not that will be enforced by the state. I support that degree of paternalism. No one can force two adults to keep living together, so it seems like a covenantal marriage gone sour could just be some messy legal entanglement.
I wonder if the state should be in the marriage business at all. Someone in the informal role of "spouse" who lives with you who earns little or no money could be a dependent for tax purposes. Recent US trends are that marriage is a luxury for the rich, and those in the working class and below don't get married even if they live together. For the more well off, I toy with ideas like a civil contract with a "security deposit" of many thousands of dollars. If one wants to stay and the other insists on leaving, the first party gets the security deposit?
Definitely the government should be in the business of enforcing child support payments, however.
I think it depends on what you think the social value of marriage is and how much you think the state can and should encourage it. I think the social value is probably pretty good, I want to encourage people to partner up for long enough to have and raise kids but that doesn’t have to mean they’re in never ending religious marriages. I think tax incentives are a reasonable and positive way to encourage marriage and I think marriage provides some insurance for partners who invest a lot in the relationship (i.e. stay at home moms or primary caretakers who haven’t been able to advance their careers as much given home responsibilities).
Surely the idea of marriage would strongly persist due to the culture. And if the goal is to encourage children, then perhaps do that more directly. The government supports marriages that are childless by choice too. I do concede your point about it being insurance for stay-at-home partners to some extent, but even there it seems like a very blunt instrument.
But doing away with state-recognized marriage is perhaps outside the Overton window and not worth getting stuck on.
Fear of being wiped out financially in a divorce is a big reason I never married and had kids despite coming up on double-FIRE financially.
To my surprise, according to the latest data that I've seen, less than 5% (1-3%) of newly married couples take advantage of covenant marriages in the states in which that option is offered.
I make the assumption that few of us get married with the intention of getting divorced. Yet there appears to be a strong bias against entering into a marriage contract that would require a high level of partner malfeasance to exit.
Given current statistics, states that were able to eliminate no fault divorce would likely depress marriage rates and prompt couples, or individuals, to relocate to other jurisdictions to execute divorces. I'm old enough to remember when that was a thing.
A minor point, but I didn't see it mentioned: divorce still happened prior to no-fault, so the question is, given the optimal rate is non-zero, was it too infrequent 🤷♂️
Yes, and do we want to come up with an objective standard for judging when the conditions are bad enough to end the marriage or leave that decision to the individuals involved without demanding any sort of proof
From the comments here, it sounds like we should force women to skip ahead and only marry their second husbands. Then we can end no-fault divorce.
lol getting the husband right, that’s the tricky part