LRB-0411/3
PJK:kg:ijs
1999 - 2000 LEGISLATURE
February 4, 1999 - Introduced by Representatives Owens, Ainsworth, Albers,
Gard, Goetsch, Gunderson, Handrick, Jensen, Kedzie, Vrakas and Klusman,
cosponsored by Senators Welch, Roessler and Darling. Referred to
Committee on Family Law.
AB83,1,5
1An Act to renumber 765.13;
to renumber and amend 767.07 and 767.13 (5)
2(a);
to amend 765.09 (3) and 765.12 (2); and
to create 765.09 (4), 765.12 (3),
3765.13 (2), 765.26, 767.07 (2m), 767.07 (3m), 767.085 (1) (bm), 767.085 (1) (cr),
4767.12 (4) and 767.13 (5) (a) 1. b. of the statutes;
relating to: covenant marriage
5and 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:
AB83, s. 1
1Section
1. 765.09 (3) of the statutes is amended to read:
AB83,4,32
765.09
(3) Each party shall present satisfactory, documentary proof of
3identification and residence and shall swear (or affirm) to the application before the
4clerk who is to issue the marriage license or the person authorized to accept such
5applications in the county and state where the party resides. The application shall
6contain the social security number of each party, as well as any other informational
7items that the department of health and family services directs
, subject to sub. (4).
8The portion of the marriage application form that is collected for statistical purposes
9only shall indicate that the address of the marriage license applicant may be
10provided by a county clerk to a law enforcement officer under the conditions specified
11under s. 765.20 (2). Each applicant under 30 years of age shall exhibit to the clerk
12a certified copy of a birth certificate, and any applicants shall submit a copy of any
13judgments or a death certificate affecting the marital status. If such certificate or
14judgment is unobtainable, other satisfactory documentary proof of the requisite facts
15therein may be presented in lieu thereof. Whenever the clerk is not satisfied with
1the documentary proof presented, he or she shall submit the same, for an opinion as
2to the sufficiency of the proof, to a judge of a court of record in the county of
3application.
AB83, s. 2
4Section
2. 765.09 (4) of the statutes is created to read:
AB83,4,75
765.09
(4) If the parties intend to contract a covenant marriage under s. 765.26,
6the marriage license application shall include a separate form with the following
7declaration:
AB83,4,118
We, .... (name of intended husband) and .... (name of intended wife), do hereby
9declare that we intend to contract a covenant marriage and have executed and do
10submit for attachment to the marriage license a declaration of intent under section
11765.26 (1) (b), Wisconsin Statutes.
AB83, s. 3
12Section
3. 765.12 (2) of the statutes is amended to read:
AB83,4,2313
765.12
(2) The Except as provided in sub. (3), the marriage license shall
14authorize the marriage ceremony to be performed in any county of this state within
1530 days of issuance, excepting that where both parties are nonresidents of the state,
16the ceremony shall be performed only in the county in which the marriage license is
17issued. The officiating person shall determine that the parties presenting
18themselves to be married are the parties named in the marriage license. If aware
19of any legal impediment to such marriage, the person shall refuse to perform the
20ceremony. The issuance of a marriage license shall not be deemed to remove or
21dispense with any legal disability, impediment or prohibition rendering marriage
22between the parties illegal, and the marriage license shall contain a statement to
23that effect.
AB83, s. 4
24Section
4. 765.12 (3) of the statutes is created to read:
AB83,5,9
1765.12
(3) If the parties indicate on their marriage license application that they
2intend to contract a covenant marriage, as provided in s. 765.09 (4), the parties shall
3submit to the clerk a declaration of intent to contract a covenant marriage that
4complies with s. 765.26 (1) (b). The clerk shall attach the declaration of intent to the
5marriage license. The marriage license shall authorize the marriage ceremony of
6parties who indicate on their marriage license application that they intend to
7contract a covenant marriage to be performed not sooner than 31 days nor later than
845 days after the license is issued. At any time before the marriage ceremony takes
9place, the parties may rescind their intention to contract a covenant marriage.
AB83, s. 5
10Section
5. 765.13 of the statutes is renumbered 765.13 (1).
AB83, s. 6
11Section
6. 765.13 (2) of the statutes is created to read:
AB83,5,1612
765.13
(2) The marriage document shall provide for a designation by the
13officiating person, or by the parties to the marriage if the marriage ceremony is
14performed without an officiating person, as to whether the parties entered into a
15covenant marriage. The designation shall be signed by the parties to the marriage,
16the witnesses and the officiating person, if any.
AB83, s. 7
17Section
7. 765.26 of the statutes is created to read:
AB83,5,21
18765.26 Covenant marriage. (1) Requirements for new marriages. (a)
A
19covenant marriage may be contracted between one male and one female who, in
20addition to complying with the other requirements of this chapter, have done all of
21the following:
AB83,5,2422
1. Received premarital counseling on the nature, purposes and responsibilities
23of marriage from a marriage and family therapist, a professional counselor, a
24member of the clergy or a person designated by a member of the clergy.
AB83,5,2525
2. Executed a declaration of intent that complies with par. (b).
AB83,6,3
13. Indicated their intention to contract a covenant marriage on their marriage
2license application and provided the county clerk with a duplicate original of their
3declaration of intent.
AB83,6,54
(b) A declaration of intent to contract a covenant marriage shall include all of
5the following:
AB83,6,66
1. The following recitation by the parties:
AB83,6,15
7"We do solemnly declare that marriage is a covenant between a man and a
8woman who agree to live together as husband and wife for as long as they both may
9live. We have chosen each other carefully and disclosed to one another everything
10that could adversely affect the decision to enter into this marriage. We have received
11premarital counseling on the nature, purposes and responsibilities of marriage. We
12have read the pamphlet entitled "Covenant Marriage" and we understand that a
13covenant marriage is for life. If we experience marital difficulties, we commit
14ourselves to taking all reasonable efforts, including marriage counseling, to preserve
15our marriage.
AB83,6,1816
With full knowledge of what this commitment means, we do hereby declare that
17our marriage will be bound by Wisconsin law on covenant marriage and we promise
18to love, honor and care for one another as husband and wife for the rest of our lives."
AB83,7,219
2. An affidavit by the parties that they have received premarital counseling
20from a marriage and family therapist, a professional counselor, a member of the
21clergy or a person designated by a member of the clergy, and that the counseling
22included a discussion of the seriousness of covenant marriage, communication of the
23fact that a covenant marriage is a commitment for life, a discussion of the obligation
24to seek marriage counseling in times of marital difficulties and a discussion of the
1exclusive grounds in a covenant marriage for legal separation and divorce if a child
2is involved.
AB83,7,103
3. A notarized attestation, signed by the person who provided the counseling
4specified under subd. 2. and attached to or included in the parties' affidavit,
5confirming that the parties were counseled as to the nature and purpose of the
6marriage and the grounds for legal separation and divorce if a child is involved and
7acknowledging that the person provided to the parties the informational pamphlet
8developed and prepared by the department of health and family services, entitled
9"Covenant Marriage", that provides a full explanation of the terms, conditions and
10consequences of a covenant marriage.
AB83,7,1111
4. The notarized signatures of both parties.
AB83,7,1312
5. If one or both of the parties are between the ages of 16 and 18 years, the
13written consent required under s. 765.02 (2).
AB83,7,1714
(c) The recitation portion of the declaration under par. (b) 1. shall be prepared
15in duplicate originals, one of which shall be retained by the parties. The other
16duplicate original, together with the remainder of the declaration, shall be provided
17to the county clerk for attachment to the marriage license.
AB83,7,2318
(d)
If the parties to a marriage fulfill the requirements of par. (a) and enter into
19a covenant marriage as intended, the officiating person, or the parties if the marriage
20ceremony is performed without an officiating person, shall designate on the
21marriage certificate that the parties entered into a covenant marriage. The
22designation must be signed by the parties, the witnesses and the officiating person,
23if any.
AB83,8,8
24(2) Requirements for marriages previously contracted. (a) Notwithstanding
25sub. (1), on or after the effective date of this paragraph .... [revisor inserts date], a
1marriage between one male and one female that was entered into before the effective
2date of this paragraph .... [revisor inserts date], may be designated by the married
3couple as a covenant marriage if the couple executes a declaration of intent that
4complies with par. (b). The declaration of intent shall be filed with the register of
5deeds with whom the couple's marriage certificate is filed. If the couple was married
6outside the state, a copy of their marriage certificate, or comparable document, with
7the declaration of intent attached, shall be filed with the register of deeds of the
8county in which the couple resides.
AB83,8,109
(b) A declaration of intent to designate an existing marriage as a covenant
10marriage shall include all of the following:
AB83,8,1111
1. The following recitation by the parties:
AB83,8,19
12"We do solemnly declare that marriage is a covenant between a man and a
13woman who agree to live together as husband and wife for so long as they both may
14live. We understand the nature, purposes and responsibilities of marriage. We have
15read the informational pamphlet entitled "Covenant Marriage", developed and
16prepared by the department of health and family services, and we understand that
17a covenant marriage is for life. If we experience marital difficulties, we commit
18ourselves to taking all reasonable efforts, including marital counseling, to preserve
19our marriage.
AB83,8,2320
With full knowledge of what this commitment means, we do hereby declare that
21our marriage will be bound by Wisconsin law on covenant marriage and we renew
22our promise to love, honor and care for one another as husband and wife for the rest
23of our lives."
AB83,8,2424
2. The notarized signatures of both parties.
AB83,9,4
1(c) The recitation portion of the declaration under par. (b) 1. shall be prepared
2in duplicate originals, one of which shall be retained by the parties. The other
3duplicate original, together with the remainder of the declaration, shall be filed as
4provided in par. (a).
AB83,9,14
5(3) Effect; special grounds for divorce or separation if a child is involved. 6A covenant marriage shall be subject to the same provisions as any other marriage
7and shall be in all respects the same as any other marriage, except that, if the parties
8to a covenant marriage, or either of them, has a minor child, or the wife is pregnant,
9at the time an action for divorce or legal separation is commenced, a court may grant
10a judgment of divorce or legal separation only upon one of the bases specified in s.
11767.07 (2m) (c). If, at the commencement of an action for divorce or legal separation,
12neither party to a covenant marriage has a minor child and the wife is not pregnant,
13a court may grant a judgment of divorce or legal separation with respect to the
14marriage as provided in s. 767.07 (1).
AB83,9,23
15(4) Informational pamphlet. The department of health and family services
16shall develop by rule and prepare an informational pamphlet, entitled "Covenant
17Marriage", that explains covenant marriage in easily understood language,
18including the procedure for entering into, or designating an existing marriage as, a
19covenant marriage and the effect of entering into, or designating an existing
20marriage as, a covenant marriage. The department of health and family services
21shall make the pamphlet available, upon request and free of charge, to any person
22who may provide the premarital counseling under sub. (1) (b) 2. and to any other
23person.
AB83, s. 8
24Section
8. 767.07 of the statutes is renumbered 767.07 (1), and 767.07 (1)
25(intro.), (a) and (b), as renumbered, are amended to read:
AB83,10,3
1767.07
(1) (intro.)
A Except as provided in subs. (2m) and (3m), a court of
2competent jurisdiction shall grant a judgment of divorce or legal separation if
all of
3the following apply:
AB83,10,54
(a) The requirements of this chapter as to residence
and marriage assessment
5counseling have been complied with
;.
AB83,10,86
(b) 1. In connection with a judgment of divorce or legal separation, the court
7finds that the marriage is irretrievably broken under s. 767.12 (2), unless
par. (b) 8subd. 2. applies.