Legislature(1997 - 1998)

02/25/1998 01:12 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                     
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              
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               
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                
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              
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                  
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                
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.              

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