SB17: Bill Text

LRB-1590/3

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1999 - 2000 LEGISLATURE

1999 Senate BILL 17

January 26, 1999 - Introduced by Senators Welch, Darling, Roessler and Fitzgerald, cosponsored by Representatives Owens, Ainsworth, Kedzie, Handrick, Vrakas, Goetsch, Jensen, Gunderson, Albers and Gard. Referred to Committee on Judiciary and Consumer Affairs.

SB17,1,5 An Act to renumber 765.13; to renumber and amend 767.07 and 767.13 (5) (a); to amend 765.09 (3) and 765.12 (2); and to create 765.09 (4), 765.12 (3), 765.13 (2), 765.26, 767.07 (2m), 767.07 (3m), 767.085 (1) (bm), 767.085 (1) (cr), 767.12 (4) and 767.13 (5) (a) 1. b. of the statutes; relating to: covenant marriage and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, married persons may be divorced or legally separated without showing either party to be at fault for a breakdown in the marriage. For a divorce, the court must find that the marriage is irretrievably broken, which may be based on the statement of one of the parties and the court's determination that reconciliation is not reasonably likely. For a legal separation, the court must find that the marital relationship is broken. The court may convert a judgment of legal separation into a judgment of divorce if at least one year has elapsed since the judgment of legal separation was entered and at least one of the parties requests it.

This bill establishes covenant marriage as an option for a man and a woman who are entering into a marriage and for a man and a woman who are already married. If the parties to a covenant marriage, or one of them, decides to seek a divorce or a legal separation and at least one of the parties has a minor child, the court must make certain findings that do not apply in other marriages. In addition to finding that the marriage is irretrievably broken, or that the marital relationship is broken in the case of legal separation, the court must find that the parties have undergone marriage counseling, in an attempt to save the marriage, and that at least one of the following grounds applies:

1) The respondent has committed adultery.

2) The respondent has committed a felony and has been sentenced to imprisonment.

3) The respondent has abandoned the petitioner for at least one year.

4) The respondent has abused the petitioner or a child of either or both parties.

5) The parties have been living apart without reconciliation for two years or more.

6) The respondent is habitually intemperate or treats the petitioner so cruelly that living together is impossible. (This ground applies only for a legal separation.)

If neither of the parties to a covenant marriage has a minor child and the wife is not pregnant, the court may grant the parties a divorce or legal separation upon the same basis as in a marriage that is not a covenant marriage. As in other marriages, the parties to a covenant marriage may stipulate as to any issues that the court would have to decide (such as property division, child custody and child support), including the grounds on which the divorce or legal separation is based. The family court commissioner may preside at the hearing and grant a judgment of divorce or legal separation in any marriage if the parties stipulate as to all issues that must be decided.

In order to enter into a covenant marriage, the parties must execute a declaration of intent to contract a covenant marriage, which must be signed by the parties and notarized, and which must include a recitation regarding their marriage as a commitment for life and the stated commitment to obtain marriage counseling if they experience marital difficulties. In addition, the parties must receive premarital counseling from a marriage and family therapist, a professional counselor, a member of the clergy or a person designated by a member of the clergy. The person providing the counseling must sign, and have notarized, an attestation that he or she provided counseling.

When the parties apply for a marriage license, they must inform the county clerk, as part of their marriage license application, that they intend to contract a covenant marriage. The parties must submit to the county clerk a duplicate original of their declaration of intent to contract a covenant marriage, which the clerk attaches to the marriage license. Parties who indicate to the county clerk that they intend to contract a covenant marriage may marry no sooner than 31 days and no later than 45 days after their marriage license is issued. This extra time affords the parties an opportunity to rescind their decision to contract a covenant marriage. (For other marriages, the parties must marry within 30 days after their marriage license is issued.) The person officiating at the marriage of the parties designates on the marriage document, which when completed is sent to the register of deeds, whether the parties entered into a covenant marriage.

Persons who are already married may designate their marriage as a covenant marriage by executing a declaration of intent to designate an existing marriage as a covenant marriage, which must be signed by the parties and notarized, and which must include a recitation regarding their marriage as a commitment for life and the stated commitment to obtain marriage counseling if they experience marital difficulties. A duplicate original of the declaration of intent must be filed with the register of deeds in this state with whom the parties' marriage certificate is filed. If the parties were married in another state, they must file a duplicate original of the declaration of intent, along with a copy with their marriage certificate, with the register of deeds of the county in which they reside.

The bill requires the department of health and family services (DHFS) to develop by rule and prepare an informational pamphlet on covenant marriage that DHFS must provide free of charge upon request to persons who, under the bill, may provide premarital counseling to persons who wish to enter into a covenant marriage, as well as to any other person who requests a copy.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB17, s. 1 Section 1. 765.09 (3) of the statutes is amended to read:

SB17,4,3 765.09 (3) Each party shall present satisfactory, documentary proof of identification and residence and shall swear (or affirm) to the application before the clerk who is to issue the marriage license or the person authorized to accept such applications in the county and state where the party resides. The application shall contain the social security number of each party, as well as any other informational items that the department of health and family services directs, subject to sub. (4). The portion of the marriage application form that is collected for statistical purposes only shall indicate that the address of the marriage license applicant may be provided by a county clerk to a law enforcement officer under the conditions specified under s. 765.20 (2). Each applicant under 30 years of age shall exhibit to the clerk a certified copy of a birth certificate, and any applicants shall submit a copy of any judgments or a death certificate affecting the marital status. If such certificate or judgment is unobtainable, other satisfactory documentary proof of the requisite facts therein may be presented in lieu thereof. Whenever the clerk is not satisfied with the documentary proof presented, he or she shall submit the same, for an opinion as to the sufficiency of the proof, to a judge of a court of record in the county of application.

SB17, s. 2 Section 2. 765.09 (4) of the statutes is created to read:

SB17,4,7 765.09 (4) If the parties intend to contract a covenant marriage under s. 765.26, the marriage license application shall include a separate form with the following declaration:

SB17,4,11 We, .... (name of intended husband) and .... (name of intended wife), do hereby declare that we intend to contract a covenant marriage and have executed and do submit for attachment to the marriage license a declaration of intent under section 765.26 (1) (b), Wisconsin Statutes.

SB17, s. 3 Section 3. 765.12 (2) of the statutes is amended to read:

SB17,4,23 765.12 (2) The Except as provided in sub. (3), the marriage license shall authorize the marriage ceremony to be performed in any county of this state within 30 days of issuance, excepting that where both parties are nonresidents of the state, the ceremony shall be performed only in the county in which the marriage license is issued. The officiating person shall determine that the parties presenting themselves to be married are the parties named in the marriage license. If aware of any legal impediment to such marriage, the person shall refuse to perform the ceremony. The issuance of a marriage license shall not be deemed to remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal, and the marriage license shall contain a statement to that effect.

SB17, s. 4 Section 4. 765.12 (3) of the statutes is created to read:

SB17,5,9 765.12 (3) If the parties indicate on their marriage license application that they intend to contract a covenant marriage, as provided in s. 765.09 (4), the parties shall submit to the clerk a declaration of intent to contract a covenant marriage that complies with s. 765.26 (1) (b). The clerk shall attach the declaration of intent to the marriage license. The marriage license shall authorize the marriage ceremony of parties who indicate on their marriage license application that they intend to contract a covenant marriage to be performed not sooner than 31 days nor later than 45 days after the license is issued. At any time before the marriage ceremony takes place, the parties may rescind their intention to contract a covenant marriage.

SB17, s. 5 Section 5. 765.13 of the statutes is renumbered 765.13 (1).

SB17, s. 6 Section 6. 765.13 (2) of the statutes is created to read:

SB17,5,16 765.13 (2) The marriage document shall provide for a designation by the officiating person, or by the parties to the marriage if the marriage ceremony is performed without an officiating person, as to whether the parties entered into a covenant marriage. The designation shall be signed by the parties to the marriage, the witnesses and the officiating person, if any.

SB17, s. 7 Section 7. 765.26 of the statutes is created to read:

SB17,5,21 765.26 Covenant marriage. (1) Requirements for new marriages. (a) A covenant marriage may be contracted between one male and one female who, in addition to complying with the other requirements of this chapter, have done all of the following:

SB17,5,24 1. Received premarital counseling on the nature, purposes and responsibilities of marriage from a marriage and family therapist, a professional counselor, a member of the clergy or a person designated by a member of the clergy.

SB17,5,25 2. Executed a declaration of intent that complies with par. (b).

SB17,6,3 3. Indicated their intention to contract a covenant marriage on their marriage license application and provided the county clerk with a duplicate original of their declaration of intent.

SB17,6,5 (b) A declaration of intent to contract a covenant marriage shall include all of the following:

SB17,6,6 1. The following recitation by the parties:

SB17,6,15 "We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for as long as they both may live. We have chosen each other carefully and disclosed to one another everything that could adversely affect the decision to enter into this marriage. We have received premarital counseling on the nature, purposes and responsibilities of marriage. We have read the pamphlet entitled "Covenant Marriage" and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to taking all reasonable efforts, including marriage counseling, to preserve our marriage.

SB17,6,18 With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Wisconsin law on covenant marriage and we promise to love, honor and care for one another as husband and wife for the rest of our lives."

SB17,7,2 2. An affidavit by the parties that they have received premarital counseling from a marriage and family therapist, a professional counselor, a member of the clergy or a person designated by a member of the clergy, and that the counseling included a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek marriage counseling in times of marital difficulties and a discussion of the exclusive grounds in a covenant marriage for legal separation and divorce if a child is involved.

SB17,7,10 3. A notarized attestation, signed by the person who provided the counseling specified under subd. 2. and attached to or included in the parties' affidavit, confirming that the parties were counseled as to the nature and purpose of the marriage and the grounds for legal separation and divorce if a child is involved and acknowledging that the person provided to the parties the informational pamphlet developed and prepared by the department of health and family services, entitled "Covenant Marriage", that provides a full explanation of the terms, conditions and consequences of a covenant marriage.

SB17,7,11 4. The notarized signatures of both parties.

SB17,7,13 5. If one or both of the parties are between the ages of 16 and 18 years, the written consent required under s. 765.02 (2).

SB17,7,17 (c) The recitation portion of the declaration under par. (b) 1. shall be prepared in duplicate originals, one of which shall be retained by the parties. The other duplicate original, together with the remainder of the declaration, shall be provided to the county clerk for attachment to the marriage license.

SB17,7,23 (d) If the parties to a marriage fulfill the requirements of par. (a) and enter into a covenant marriage as intended, the officiating person, or the parties if the marriage ceremony is performed without an officiating person, shall designate on the marriage certificate that the parties entered into a covenant marriage. The designation must be signed by the parties, the witnesses and the officiating person, if any.