Legislature(1997 - 1998)
02/25/1998 01:12 PM House JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 390 - CHARTER MARRIAGES Number 2273 CHAIRMAN GREEN announced the final item of business would be HB 390, "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." REPRESENTATIVE PETE KELLY, sponsor, referred members to a large chart prepared by his staff. He expressed the belief that HB 390 reflects the interests of the state of Alaska, which has a legitimate concern about the state of marriage in Alaska. He said marriage is the institution that provides future citizens, and if those future citizens are raised in stable families, they are more likely to succeed and less likely to be a burden on the state. REPRESENTATIVE KELLY offered statistics from an article in the Boston Globe. First pointing out that no-fault divorce was created in 1969, he said since 1970 the divorce rate in the country has gone up 279 percent; the number of children living with divorced parents has gone up 352 percent; the number of children living in single-parent families has gone up 108 percent; and the number of couples living outside of marriage has gone up 553 percent. He noted that studies have been done regarding the effects on children. TAPE 98-25, SIDE A Number 0006 REPRESENTATIVE KELLY cited statistics relating to fatherless children, including an increase in: illegitimate births, failures of their own marriages, the high school drop-out rate, emotional and behavioral problems requiring counseling, and the rate of incarceration. He said the most reliable predictor of crime is neither poverty nor race, but growing up fatherless. He pointed out that these statistics reflect not only what happens in divorce but also in "illegitimate families." He said we must do something to stop people from being added to that population. Number 0074 REPRESENTATIVE KELLY explained that HB 390 describes another contract in statute. There is no enforcing agency. When a couple decides to marry, they will get a license for either marriage A or B. The first is a testament marriage, such as has existed since 1969 with no-fault divorce. If they choose that, everything is the same in Alaska for that couple as it would have been before. If they choose this new charter marriage, however, certain conditions will apply. There will be counseling before marriage, as well as leading up to the divorce. If a woman is in an abusive relationship, or if one spouse is sexually abusing a child of the marriage or a child of the other spouse, that person can get a divorce like anyone else can, which is provided for in the bill. REPRESENTATIVE KELLY explained that the difference is when the parties are just incompatible. This contract states that the couple will seek counseling on that. If they can't come to any conclusions based on that counseling, then they are going to live apart for a year. He said, "After that period of time, they can go seek and separation of bed and board, which is a legal separation; that lasts a year, and at the end of that time, they're divorced." Number 0233 REPRESENTATIVE KELLY indicated his hope that this will cause couples thinking of marrying to discuss their expectations beforehand and determine whether they agree. Perhaps those who don't agree won't marry in the first place, which he suggested would be a net benefit to the state. He suggested this will be a first step in stemming the tide of no-fault divorce and the wreckage that has brought on this country. REPRESENTATIVE KELLY told members, "I don't have any delusions about the fact that this is going to all of a sudden cure all of our problems, and there's not going to be any more single-parent families, and we're all going to live happily ever after and sing 'Kumbaya' together or anything like that. But I think it is a step." He pointed out that Alaska's divorce rate is 5.1 per thousand population, compared to the national rate of 4 per thousand. He specified that the rate is per thousand population, not per thousand who get married. Number 0330 REPRESENTATIVE KELLY said in the 1950s, only 11 percent of children could expect that their parents would break up. Nowadays, that is 50 percent. Enacting no-fault divorce essentially made divorce in this country as much of an institution as marriage, because 50 percent buy into divorce and 50 percent buy into a long-lasting marriage. Representative Kelly suggested it is time to do something about that, and this way preserves what he called the sacred right of choice in this country. He emphasized that it is all voluntary. If someone wants a higher tier of marriage, a more responsible contract at least as sacred as a business contract, this offers that choice. Number 406 CHAIRMAN GREEN said he was wondering whether this bill might increase the number of people living out of wedlock. He asked whether there are indications about that from other states where this has been done. REPRESENTATIVE KELLY replied that other states do this. For example, Louisiana has a "covenant marriage," but that has only been enacted for a short time and there is no data yet. Although Pennsylvania has something like this, somewhat, it may be comparing apples and oranges. Representative Kelly said it shows that states are now beginning to take these kinds of steps. Number 0477 REPRESENTATIVE KELLY told members that some cities have begun doing this, but not on a municipal level. The churches in cities have been getting together and creating something like this and then tracking what is going on in their own churches. He said divorce in the Christian community is almost as prevalent as elsewhere, and people have decided to do something about it. Perhaps 80 cities have done this now, and they think it has been successful. He doesn't know how well that data could be tracked, as it is within a specific population that may not apply to the rest of the state. Representative Kelly acknowledged that hadn't answered the question and said he didn't know that it will really have much impact on living out of wedlock. He suggested that with a third option, people may opt for a testament marriage anyway. Number 0578 REPRESENTATIVE ROKEBERG mentioned that there is no fiscal note from the Alaska Court System. He asked the sponsor to talk about the fiscal note from the Bureau of Vital Statistics and to comment on ramifications in the court system because of the necessity for hearings to grant separations from bed and board. REPRESENTATIVE KELLY replied that he hadn't talked to the Alaska Court System about the lack of fiscal note. He pointed out that there are divorced actions anyway, and the intent of HB 390 is to have fewer of them. He indicated he couldn't speak for the court system but that he thought they were perhaps assuming there would be the same number of hearings, or fewer. Number 0726 REPRESENTATIVE ROKEBERG remarked that they are adding a layer, and he suggested it would depend on how many people signed up for this social experiment. REPRESENTATIVE KELLY responded that no-fault divorce should be considered the social experiment, adding, "This is what our parents were married under, ... essentially what you see in this bill." He said it isn't increasing the number of people married, and that to divorce, couples must go through a court action anyway. "So, if we're talking about the number of divorces, I think what you're saying is there'd have to be an increase in the number of people married to actually have an increase in the number of people divorced," he concluded. REPRESENTATIVE ROKEBERG restated that it adds the separation action before divorce, which would require an additional court appearance. CHAIRMAN GREEN suggested it would be moot if after the first court hearing the couple reunited. REPRESENTATIVE KELLY said he didn't mean to speak for the court system, which had not provided a fiscal note. He then stated, "There are a number of breaks before you get to that, and maybe they're just assuming they're going to have fewer to deal with, it's going to be a net wash." Number 0775 REPRESENTATIVE ROKEBERG said it is apparently quite costly, with some $13,300 to print up forms in the first year, and $5,000 thereafter. He asked what it costs to get a marriage license, suggesting it could be a self-supporting process. REPRESENTATIVE KELLY said it is $25. REPRESENTATIVE ROKEBERG asked whether Representative Kelly had considered raising those fees to offset the additional costs. REPRESENTATIVE KELLY replied that he is willing to face the House Finance Committee with a $13,000 fiscal note. REPRESENTATIVE ROKEBERG asked whether that is because he sits on that committee. Number 0867 REPRESENTATIVE JAMES commented that with bills meant to modify social behavior, they always measure the cost to get there but not the cost of the social behavior. Where she sees the real benefit of this legislation is at the time of the decision to marry; it is a huge decision, when here is another option that everyone has been taking. She suggested that making that decision will produce a different end result, and that for a couple who had made that statement, there would be less chance of divorce. She said it seems the social modification would cost less down the road than the current system does. Number 0959 REPRESENTATIVE PORTER agreed with the sponsor that the issue of fees is a finance question that should be dealt with by the House Finance Committee. He said he would like to ask the House Finance Committee to consider that when looking at legal issues in the bills sent to them by the House Judiciary Committee. Representative Porter then informed members that in discussions, he and the sponsor had the same thought about the effect of the bill. It wasn't on any of the post-marriage effects, but rather on the pre-marriage effect that he suggested everybody at the table had gone through. REPRESENTATIVE BERKOWITZ responded, "No." REPRESENTATIVE PORTER explained that if two people decide to marry, they'll discover, if this is law, that they have an option to sign up for A, the no-fault option, or for B, "this regular commitment." He stated, "Now, I don't want to be sexist, but I would guess, looking back at my relationship, my wife would have wanted to sign up for B. And that would have put me on the spot, by golly. I can fortunately say that this year makes 40 years, so it wasn't an issue. But the one thing that bothers me about divorce statistics is that they are somewhat misleading. Knowing as I do the folks at this table, I know that there are at least four that have been married in excess of 20-30 years, which somewhat belies the statistic that four out of five marriages end up in divorce. They don't. Four out of five marriages do, not four out of five people. Some people are on the fourth, fifth, sixth ... marriages. So, this is an option that I think some of those folks need to consider. But, quite frankly, I don't think that the system is totally broke, especially looking at the table we have right here." Number 1135 REPRESENTATIVE ERIC CROFT said a confusing part of the bill for him is the separation from bed and board. In both that section and the actual charter marriage section, there are a number of specific exceptions including abuse. However, if a couple just didn't want to remain married, they would file for a separation from bed and board. He referred to page 7, line 18, and said to do that, they would have had to, under the general provision, been living separately for a year. Then, after a year of living separately had passed after the date of judgment, they would be entitled to a charter divorce, on page 5, lines 6 through 12. He said that is a year plus a year, or 18 months if there are children. REPRESENTATIVE KELLY said that is correct. REPRESENTATIVE CROFT noted that it would be either two or two and a half years of living apart beforehand. He then referred to page 3, lines 4 through 6, and said one thing the couple must recite to each other is that the partners have disclosed to the intended mate all facts that may adversely affect the intended mate's decision to enter into the charter marriage. He commented that it seems a daunting task [there was laughter], then asked: Even if one could do it, what is the redress if one doesn't? What happens for a violation of this section? Number 1258 REPRESENTATIVE KELLY replied that this is the description of a contract, and he doesn't think any government agency will be involved. However, the afflicted party could take it before a judge, just as a businessperson might do if a partner had not disclosed information. He said he doesn't know what the redress would be but assumes it would be a matter for a judge to decide. He asked Representative Croft, "Is that your experience in law?" REPRESENTATIVE CROFT referred to failure to disclose necessary facts, mentioning realtors who are required to do so and that sometimes a contract can be voided. He said if it is a requirement somehow and one fails to disclose it, it might be a remedy. He added, "It would be an odd application here, that is, in addition to the other listing of elements, I could say as an additional way that I get a separation or get a divorce - I get out of this contract - is because of fraud in the inducement or whatever. I mean, I was not disclosed pertinent facts." Number 1361 REPRESENTATIVE BERKOWITZ suggested that if someone failed to disclose a material term, "that they're impossible to live with or that they snore or that ... they're going to develop some loathsome disease," it would seem to void the contract, which puts it into the testamentary zone anyway. REPRESENTATIVE KELLY questioned that, then acknowledged that if one had failed to disclose being an incurable philanderer, the couple would probably divorce for reasons of adultery anyway. He asked, "What if you have a communicable disease? What if you're carrying HIV or some other form of sexually transmitted disease and you fail to disclose that?" REPRESENTATIVE BERKOWITZ responded, "The problem I have with this provision is that you're essentially telling me I've got to go out there and find out certain things. Do I have to go get genetic testing to prove that I'm not a carrier of Tay Sachs? Do I have to go do all these things or else the government's going to peer over my shoulder and tell me that my marriage somehow ... isn't of the same grounds as another marriage where we just promise like we do now?" Number 1455 REPRESENTATIVE PORTER suggested people cannot be accused of failing to disclose something they don't know. REPRESENTATIVE BERKOWITZ replied that there could be an affirmative obligation to go out and get that information. REPRESENTATIVE KELLY said it seems beyond the scope of the bill, and the government isn't going to make a person do anything in here. It is a contract between two people. REPRESENTATIVE BERKOWITZ suggested that if he were to decide on a charter marriage and go through all this, it would be the government telling him how he has to behave, in probably one of the most intimate relationships a person can have. He said, "And to me, you're defining the scope of this relationship. And at core, I'm just really baffled by how someone with a conservative ideology can suggest that the government can describe the parameters of a relationship." REPRESENTATIVE KELLY restated that there is nothing about the government here; it is a contract. Number 1518 REPRESENTATIVE BERKOWITZ countered that it is part of the law, and the law is part of what the state does. He said, "If I and another individual choose to adopt these terms ...." REPRESENTATIVE KELLY interjected, "Choose." REPRESENTATIVE BERKOWITZ responded, "Choose, as individuals. We could do that right now. We're not creating two hierarchies of marriage. And what you're doing is you're saying if someone goes for this charter marriage, they've got to go through all this stuff. And that, to me, is an erosion of personal privacy and personal ... choice." CHAIRMAN GREEN said it is not a requirement but a desire to get involved. Number 1557 REPRESENTATIVE BUNDE asked whether there is a danger of going back to the old Reno, Nevada, divorce and faked adultery, for example, that occurred when getting a divorce was difficult. REPRESENTATIVE KELLY emphasized that it is voluntary, pointing out that under HB 390, people can get separated and divorced but it just isn't quite as easy. He suggested in the old days it was harder than this to get divorced. Number 1640 REPRESENTATIVE CROFT asked how the loathsome disease would be covered. He noted that page 4 lists the bases for a charter divorce, including adultery, a crime against a person, physical abuse, sexual abuse of the child, maltreatment or abandonment, or this bed and board separation. REPRESENTATIVE KELLY said he guessed it was in reference to what Representative Berkowitz had asked regarding the declarations in the beginning, and the discussion of disclosure. REPRESENTATIVE CROFT stated his understanding that it wouldn't be a basis for a divorce but might be a basis for saying, "That was so significant you should have told me, so I get a divorce because you violated section (E) of this disclosure requirement." He asked, "Or would it just not be a basis at all?" REPRESENTATIVE KELLY replied, "You know, the more I look at it, it may not be a basis at all." Number 1701 REPRESENTATIVE CROFT said he was trying to understand it and hadn't made up his mind yet. He suggested it would cut a big hole in this bill if someone could forget about all these other factors and this counseling and the promises, and instead take the quick way out because that person's mate hadn't revealed, for example, that he snores. Representative Croft asked, "On the other hand, 'He never told me he had HIV,' that's not a basis here, and if we don't allow it as an exception there, I've got to live apart for two and a half years before I get a divorce?" REPRESENTATIVE KELLY said as he looks at it, he doesn't think that is a basis. He then asked, "Could you under number (5), Representative Croft?" REPRESENTATIVE CROFT responded, "Maltreatment?" REPRESENTATIVE KELLY noted that it says cruelly, in a manner that impairs the health or endangers the life of a petitioning spouse. He then stated, "If you did not know that you had HIV and you married, and then the couple found out that this happened, to me that falls under the 'for better or worse.' You've got to deal with that, as a couple. If he knew he had HIV and in fact married anyway and had sexual relations with this person without telling them, I guess you could make the claim that this was 'or endangers the life of the petitioning spouse.'" Number 1789 REPRESENTATIVE CROFT responded, "I guess that would be the rub. That's the way I'd read it, that if they had sexual intercourse, that would be a manner that impairs the health or endangers the life of. If you just confess it without that, you've got a two- or two-and-a-half-year wait, probably two in that situation." He recalled a country song titled, "Why Did You Believe Me When I Told You That I Loved You, When You Knew I'd Been a Liar All My Life?" He suggested that goes to this section. Number 1899 REPRESENTATIVE BERKOWITZ referred to the statistics regarding fatherless children and said he was curious how they compared with motherless children and children from unhappy homes where people have stayed together. He said children are important, but there are other principles at stake here. He asked whether perhaps the sponsor isn't a little nostalgic for a time that never really was. REPRESENTATIVE KELLY said there was a time in this country when we performed better in school, when the juvenile crime was much lower, when we didn't have huge welfare rolls, and when honor meant something at the highest levels, which we no longer have. One indicator of that is the high rate of divorce and the absolute disregard for the sacredness of the family. Representative Kelly stated, "Those are important things. If we can set policy and make it voluntary and take this little step, and it's $13,000, I don't see it as a net loss. But if we do take this step, we at least try to do something to stem the tide." Number 1899 REPRESENTATIVE BERKOWITZ responded that there was also a time where life expectancy was 40 years and 90 percent of Americans lived an agrarian lifestyle. He stated, "We have come a long way. And I would submit that what we're seeing here is what happens with freedom. And we hear a lot that freedom isn't always free, and there are costs and consequences to freedom, and part of the consequence is, at least in your estimation of facts, we have a higher divorce rate, and there's some kind of moral decay. And I would not agree necessarily that there [has] been a moral decay. I think there has always been a morally rotten part of this society, and I think there will always be a morally rotten part of this society. I just don't think through government action we can correct that moral deficiency." REPRESENTATIVE KELLY stated his belief that through government action, in a lot of ways, we have created a moral deficiency. "I guess we just have a philosophical disagreement," he added. Number 1937 REPRESENTATIVE JAMES pointed out that this is purely voluntary, indicating she would probably agree with Representative Berkowitz if they were saying this is what people must do. She suggested that only people who have thought marriage though pretty seriously will take the option. REPRESENTATIVE BERKOWITZ commented that marriage itself is a voluntary state. Number 1970 AL ZANGRI, Chief, Vital Statistics, Division of Public Health, Department of Health and Social Services, came forward to testify. He stated, "In general, the department doesn't have a lot of problems with this bill. We, however, do have to oppose it because of the ... Section 1, part (b), which attempts to allow anyone who is already married to opt for a charter marriage. That is not a conceptual problem for anybody, so long as you're married under Alaska law. We have the ability to go back and change an Alaska marriage, to annotate it in any way that we need to, and to make certified copies of that." MR. ZANGRI continued, "We, however, cannot do that to a California marriage or to an Oregon marriage, or any other marriage from any other state. We have no jurisdiction over their records. We have no jurisdiction over their contract terms. As a bureau, we ... would indeed probably find ourselves cut off from the rest of the states if we attempt to do this. If, as this bill calls for, we are to then note the marriage from, say, California, and then make ... any copies of that with that note, we would be unable to do that, at all. One thing, we don't have copies of that California marriage. If they give us a copy of that California marriage, we cannot make a certified copy of it. That California marriage will always exist as an unannotated marriage anywhere, and even if you walk into an Alaska court, you will have your California marriage there. There may be in existence somewhere in our files a declaration, but if they don't ask us for it, and a court never asks us for it, no one will ever see it." Number 2054 REPRESENTATIVE PORTER asked whether people who had been married in California could come to Alaska and reaffirm their vows independently if this were in place. MR. ZANGRI said in general yes, but in a reaffirmation of vows, there is no new license or marriage certificate. REPRESENTATIVE PORTER asked whether they couldn't just generate an original marriage, even though they were married someplace else. MR. ZANGRI replied, "It is possible for someone to go through the entire marriage procedure again. I'm not an attorney. I don't know what the effect of that would be. I do know that then you will have two records of a marriage, one in California, one in Alaska. If you then go to court with those particular certificates, the one that you show is your choice." Mr. Zangri told members the other question that comes up is how Alaska treats covenant marriages from other states, if they get a marriage certificate that comes in here; that is an issue for the courts, not the bureau. However, it is an issue for the bureau when they have to decide how to file or keep records of an out-of-state marriage with a new Alaska annotation to it, because they have a very difficult time doing that legally. Number 2129 REPRESENTATIVE CROFT asked whether now, without this law, people can marry in the normal testament marriage and then sign an agreement, such as in a business partnership, regarding certain conditions such as counseling. He asked, "Do we need this for them to do those terms?" MR. ZANGRI said it is a question for attorneys, but in general, he thinks someone can make any kind of contract with another that is an agreement to do certain things. If one party brings that into court, then there is a contract issue rather than a divorce issue. REPRESENTATIVE KELLY suggested that is just a prenuptial agreement, which has merit. Number 2179 MR. ZANGRI referred to Section 1, part (b). He told members that on page 2, line 1, the department requests an amendment to make that line read, "A couple that is already lawfully married under an Alaska contract ...." Also on page 2, they request that line 12 read, "to a charter marriage. An Alaska marriage ...." He explained that with those two changes to the bill, the department would withdraw its opposition, because they have no problem doing that. REPRESENTATIVE KELLY said he had no objection. Number 2210 REPRESENTATIVE JAMES made a motion to adopt that as an amendment. CHAIRMAN GREEN noted the amendment to add "[A]n Alaska" on page 2, lines 1 and 12. He asked whether there was any objection. Hearing none, he announced that the amendment was adopted. Number 2239 REPRESENTATIVE BERKOWITZ asked whether someone could essentially put together a marriage contract like this without a marriage license. MR. ZANGRI said no. REPRESENTATIVE BERKOWITZ asked why not. MR. ZANGRI explained, "Because under an Alaska statute, you cannot be married without a license after 1964 in Alaska. You can make a contract that says some things, but it's not an Alaska marriage. Alaska ... specifically does not recognize common law marriage." REPRESENTATIVE BERKOWITZ asked, "But in terms of defining the relationship I have with this other person, aside from all the benefits that flow through marriage, I can do it outside of the state." MR. ZANGRI replied, "Certainly." Number 2284 CHAIRMAN GREEN asked whether there were further questions, then announced they would hold HB 390 over until the following Friday.