Guest Post: An Idea To Bring Conservatives And Libertarians Together On Marriage

Conservatives and libertarians often fight about same-sex marriage as well as the role of the state in marriage. So I came up with a new idea that can help bring conservatives and libertarians together in their desire to help couples in their life-long journey. Some of the top family attorneys in the country have endorsed this approach.

A couple currently has the legal right to write premarital or marital agreement contracts saying that before either spouse files for separation or divorce, they would be required to do mediation, arbitration, waiting periods, financial counseling, psychological counseling, marital counseling, or other marital remedies.

Couples also have the right to limit their use of certain grounds for divorce [see Massar v. Massar, a case where a New Jersey couple wrote a marital agreement contract saying that neither of them would use any messy fault-based ground for divorce, but only a clean-cut no-fault divorce].

Likewise, a couple could write their own contract saying that neither of them will use no-fault divorce, but only certain fault-based grounds for divorce. [see Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation (ABA, 2011), p. 111 (“In some fault states, courts may enforce a provision [in a premarital agreement] that waives fault”).]

This contractual approach to marriage is a good libertarian idea. The couple does not impose on any couple but themselves certain pre-divorce requirements. This is the way marriage should be done across the board. By having couples self-regulate their marriage, their marriage will inevitably be more stable and permanent. Instead we now have a situation where the saying “What the government can regulate, it can destroy” applies just as much to marriage as to anything else the government touches.

Amazingly, House Bill 1128 is a bill currently in the North Dakota Senate which would take away ALL of these rights from married couples to craft their own pre-divorce requirements.

House Bill 1128 was heard in the Senate Judiciary Committee last week. The relevant language is on Page 5:

2. A term in a premarital agreement or marital agreement is not enforceable to the extent that it:
c. Purports to modify the grounds for a court-decreed separation or marital dissolution available under law of this state other than this chapter

House Bill 1128 bans couples from “modifying the grounds” for a separation or divorce. But if a couple wants to limit themselves to only using no-fault divorce out of a desire to avoid the messiness of fault-based divorce, they should continue to have the right to do so.

To ban couples from “modifying the grounds” for a separation or divorce also means that couples would no longer have the right to self-require such pre-divorce remedies as mediation, arbitration, waiting periods, financial counseling, psychological counseling, and marital counseling. Judges often require couples to do these things before considering divorce. So why shouldn’t couples be able to self-require such things? This language needs to be removed from the bill.

There’s another section in this bill that’s quite concerning:

3. A term in a premarital agreement or marital agreement which defines the rights or duties of the parties regarding parental rights and responsibilities is not binding on the court.

A couple may currently lay out their duties with respect to how they raise their children, where their children attend school or church, finances, and so forth. It is patently ridiculous for the legislature to revoke the current rights of parents to lay out how they’re going to define their parental rights and duties. Parenthood is not defined or granted by the state. Parents need to retain ALL of their “rights and responsibilities” concerning their children.

House Bill 1128 is the most anti-marriage piece of legislation I’ve ever seen in the North Dakota legislature. I hope the legislators don’t overlook the important details of what they’re voting on. As the saying goes, the devil is in the details.

HB1128 is coming up soon for a vote by the Senate. Please contact the members of the Senate Judiciary Committee to quickly remove the bad portions of this legislation.

Senator David Hogue (Minot), Chair – dhogue@nd.gov
Senator Margaret Sitte (Bismarck), Vice-Chair – msitte@nd.gov
Senator Kelly Armstrong (Dickinson) – karmstrong@nd.gov
Senator Spencer Berry (Fargo) – sdberry@nd.gov
Senator John Grabinger (Jamestown) – jgrabinger@nd.gov
Senator Stanley Lyson (Williston) – slyson@nd.gov
Senator Carolyn Nelson (Fargo) – cnelson@nd.gov