BILL NUMBER: AB 1236 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member DeVore
FEBRUARY 22, 2005
An act to add Chapter 4 (commencing with Section 1630) to Part 5
of Division 4 of the Family Code, relating to marital contracts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1236, as introduced, DeVore. Marriage Choice Act of 2005.
Existing law establishes the procedures by which parties to a
marriage may seek a dissolution of marriage. Existing law also
governs marital agreements between a husband and wife.
This bill would enact the Marriage Choice Act of 2005. The bill
would prohibit married parties with children together who have not
completed high school from obtaining a dissolution of marriage on
grounds of irreconcilable differences unless both parties have given
consent, as prescribed. The bill would also establish procedures by
which a couple may enter into a marital contract rejecting the right
to a "no fault" divorce, except in certain circumstances. The bill
would require couples seeking to enter into this type of marital
contract to undergo specified marital counseling and education before
entering into that contract, and also before divorcing. The bill
would require county clerks to develop and make available to the
public choice forms, as defined, in accordance with the act. The bill
would also require a county clerk to file and keep completed choice
forms within the county's permanent records and to establish a
directory of marriage education or skills training providers within
its office, as specified. By placing additional duties on local
officials, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:(a) A primary purpose of government is to promote the
general welfare. Yet current divorce laws have created a situation
that does not further the general welfare, but rather degrades it.
(b) Children of divorce generally fare more poorly in school, in
the workforce, and in their own relationships relative to children
from intact homes.
(c) Divorced men smoke more, drink more, and have more unhealthy
diets than their married counterparts.
(d) The various cultural neuroses that are directly attributable
to divorce and its byproducts are a large part of why the
entitlements in our budget are growing at such a rapid rate.
(e) No fault divorce has contributed to an increased divorce rate,
which in turn has caused many negative impacts on society. For
instance, because of the increased incidence in divorce, more than
one million children annually experience the breakup of their parents'
marriage.
(f) As one might expect, the dissolution of families negatively
affects children psychologically, economically, and socially. Several
studies of children in broken homes found they had higher
occurrences of psychiatric illness, substance abuse, suicide
attempts, and pre-marital sexual activity.
(g) Additionally, a child who repeats a grade is more likely to
come from a family shattered by divorce.
(h) Divorce impoverishes many women and children, and research
shows that families that were previously middle class saw their
incomes drop by half after divorce.
(i) Moreover, broken marriages often require the enforcement of
child support, since many noncustodial parents fail to pay for their
children's reasonable financial upkeep. In 2000, state and federal
governments spent $4.5 billion to enforce child support programs.
(j) All of these consequences produce tremendous public costs and
a self-perpetuating cycle. According to Rutgers University's National
Marriage Project, 18 to 34 year olds are marrying at greatly reduced
rates, largely because many are the products of divorce. Certainly,
all grew up in a culture of divorce. Many are afraid that if they
marry, they too will get divorced and if they are the product of
divorce, the odds are they will.
(k) Consequently, many couples live together out of wedlock, which
creates several other problems. Those who cohabit are 50 percent
more likely to divorce when they do marry and have a higher rate of
pregnancy complications compared with those who are legally wed.
These two factors can also produce a significant outlay of taxpayer
funds.
(l) It is in the interest of government policy makers to reverse
these financially destructive and personally devastating trends. One
way of doing this would be to give couples the choice of
strengthening marriage. Studies show that if couples persevere for
five years from the onset of their marital problems, their marriage
will be stronger and happier than before. Conversely, a significant
number of those who divorce say they later wish they had not.
(m) By giving couples time and incentive to stay married, we will
bring down the rate of divorce and the costs associated with it that
our society can increasingly ill afford to pay.
(n) Thus it is incumbent upon the state to find some way of
encouraging marriages to stay together. In a state that values
individual freedom to the extent that California does, giving couples
the option to freely to make it more difficult to dissolve their
marriages harms no one and actually helps society as a whole.
SEC. 2. Chapter 4 (commencing with Section 1630) is added to Part
5 of Division 4 of the Family Code , to read:
CHAPTER 4. MARRIAGE CHOICE ACT OF 2005
1630. This chapter shall be known and may be cited as the
"Marriage Choice Act of 2005."
1631. For purposes of this chapter, the following definitions
apply:(a) "Choice form" means a form provided by the county clerk's
office to a married couple, or a couple entering into a marriage,
which shall be completed by the couple and filed with the county
clerk as set forth in this part.
(b) "County clerk" means the clerk of the county in which the
parties have applied for a marriage license, or, if the parties are
already married, the county in which the married couple resides.
(c) "No-fault dissolution of marriage" means a dissolution of
marriage on the grounds of irreconcilable differences.
1632. If married parties have any children together by birth or
legal adoption who have not completed or left high school, then a
dissolution of marriage on grounds of irreconcilable differences
shall not be granted unless both parties have given consent, as
prescribed in Section 1634.
1633. (a) A couple who wishes to not be subject to the
limitations on dissolutions of marriage set forth in Section 1632
shall do all of the following:(1) Receive premarital education or
marriage education together in accordance with this part from any of
the providers described in Section 1635.
(2) Complete a choice form indicating their choice that a no-fault
dissolution of marriage will be available, and filing the choice
form with the county clerk. A choice form shall not be valid unless
it is signed by both spouses, with each signature acknowledged or
witnessed by a notary public or county clerk.
(b) A couple who is not subject to Section 1632 because they were
married outside this state or married prior to the enactment of this
part, may choose to become subject to Section 1632 by completing a
choice form indicating their choice that a no-fault dissolution of
marriage will not be available, and filing the choice form with the
county clerk after they have received marriage education together
from any of the providers described in Section 1635.
(c) The county clerk shall develop and make available to the
public choice forms in accordance with this section. The county clerk
shall also file and keep completed choice forms within the permanent
records of the county. The forms shall be in substantially the
following form:
WAIVER (option 1): "We hereby choose that a no-
fault dissolution of marriage
____will
____ will not
be available to us if and when (i) we have any
child under 19 years of age who has not yet left
high school, and (ii) one of us wants a
dissolution of marriage but the other of us does
not consent."
WAIVER (option 2): "I understand that, pursuant
to the laws of the State of California, married
persons may obtain dissolution of their marriage
only by claiming that the parties' marriage is
"irretrievably broken." I understand that
most, if not all, states in the United States
may have similar laws permitting dissolution of
marriage without requiring the proof of any
reasonable grounds for dissolution of marriage.
By signing this written marriage contract, I
knowingly and voluntarily waive any right
to a dissolution of my marriage by any and all
other statutory rights and provisions and
specifically limit the availability of
dissolution of marriage to only those specific
reasonable grounds for dissolution of marriage
which are herein enumerated."
Signature of both married parties:_______________
_________________________________________________
Dated: _________________________
Acknowledgment by notary public
or county clerk:
NOTICE: This form is not valid unless signed by
both spouses, with each signature acknowledged
before, or witnessed by, a notary public or
county clerk.
(d) A written agreement executed before or during marriage, in any
other state or country, may specify whether, and under what
conditions, "no-fault" grounds may be grounds for dissolution of
marriage when the parties have children and do not both consent to a
dissolution of marriage. The agreement may also specify a waiting
period for a dissolution of marriage when the parties do not both
consent to the dissolution. For these purposes only, any form
provided by a court for the purpose of making a choice, in any state
or country, if signed by both spouses and retained by the court or
other governmental agency or religious institution in its records,
shall be presumed to be a valid agreement. "No-fault" grounds include
such grounds as living apart, legal, judicial, or de facto
separation, irretrievable breakdown, incompatibility, or
irreconcilable differences, as are variously provided in the laws of
various states and countries.
(e) For those who reject recourse to no-fault dissolution of
marriage, dissolution of marriage is restricted to the following
grounds:
(1) Adultery.
(2) Infection with a sexually transmitted disease when the spouse
seeking the dissolution of marriage did not know at the time of
marriage that the other spouse was infected, or the other spouse
acquired the disease after marriage from someone other than the
spouse petitioning for dissolution of marriage.
(3) Infection with a fatal disease when the spouse seeking the
dissolution of marriage did not know at the time of marriage that the
other spouse was infected with the disease.
(4) Abandonment by the other spouse for one or more years
preceding filing.
(5) Habitual addiction to alcohol or drugs.
(6) Failure to financially provide for the family.
(7) Imprisonment for two or more years.
(8) Physical abuse, extreme mental cruelty, or sexual abuse of a
spouse or child.
(9) Legal insanity.
(10) Mutual consent of both parties.
(f) Common law equitable principles may be raised as defenses to
the action. The contract may provide for remedies for violation of
the contract, including damages, dissolution of marriage, or
separation. A decree of dissolution that does not conform to the
marriage contract is null and void. A marriage contract that limits
the availability of dissolution of marriage to only those reasonable
grounds specified above shall contain an express waiver of the right
to obtain a dissolution of marriage because of "irreconcilable
differences" or because the marriage is "irretrievably broken." When
obtaining a dissolution of marriage, the petitioner shall allege the
grounds pursuant to the contract. A dissolution of marriage shall be
granted if the other party does not deny the alleged grounds or if
the court finds that the alleged grounds exist. The restrictions also
apply to legal separations.
1634. (a) Consent to dissolution of marriage shall be either: (1)
unconditional, or (2) part of a written agreement, such as a
separation agreement, marital agreement, or premarital agreement that
is enforceable in its entirety.(b) Consent shall be in writing
unless it is given in open court. Asking a court for a dissolution of
marriage on any grounds constitutes consent.
(c) Consent may be given at any time before the judge signs a
final judgment for dissolution of marriage. Consent is not effective
if given only when the other spouse is not proposing or seeking a
dissolution of marriage, except when given in an agreement as
described in subdivision (b).
(d) Whenever consent has been given by both parties, and no other
grounds have been proven satisfactorily, the court may grant a
dissolution of marriage on grounds of mutual consent.
(e) A party who has filed a choice waiver rejecting the option of
a no-fault dissolution of marriage shall not ask a court for a
dissolution of marriage until after the counseling and consideration
period set forth in subdivision (f) has elapsed.
(f) The counseling and consideration period is two years, less six
months for each of the following circumstances:
(1) The parties have never had children.
(2) The parties have a written agreement for dissolution of
marriage and the agreement covers all relevant issues.
(3) After the period begins, the parties obtain marriage
education.
(h) The counseling and consideration period begins when one spouse
delivers a marriage help request notice to the other spouse.
1635. (a) Marriage education or skills training required by this
chapter may be provided by any of the following: (1) An official
representative of a religious institution, or any clergy person
authorized to perform marriages, or his or her designee, including
mentor couples or other lay volunteers, if working in a
clergy-supervised program.
(2) Marriage education providers or programs listed, funded, or
authorized by any of the following:
(A) The United States Department of Health and Human Services.
(B) The United States Department of Agriculture Cooperative
Extension Service.
(C) The United States Department of Defense and the individual
military services of the United States.
(D) Any other federal, state or local government agency or court.
(E) Smart Marriages / The Coalition for Marriage, Family and
Couples Education, which maintains a Web site available at
http://www.smartmarriages.com, or any of its component programs.
(3) Any marriage education provider or program approved by the
person who has solemnized or is solemnizing the marriage.
(4) Marriage education or skills training providers listed in any
other online or printed directories whose use has been authorized by
the Clerk of the Supreme Court.
(5) Marriage education or skills training providers listed in
directories that shall be maintained by the county clerk's office.
Each directory shall consist of a binder in which the county clerk
may place the names of local providers and materials sent by them,
copies or Web site addresses of other lists or directories authorized
by this chapter, printouts of local sections of internet online
directories, and other materials or lists that the clerk deems
suitable.
(b) Proof of completion of marriage education or skills training,
or marriage counseling, for all purposes for which it may be required
by this chapter shall be submitted as follows:
(1) Proof of completion of training should be signed by a
provider, on the stationery, or other form or certificate, that is
used by the provider, program or sponsoring institution, but it need
not be notarized.
(2) If the provider is not yet in the county clerk's directory and
appears to the county clerk to be qualified as a marriage educator
under the terms of this section, the county clerk may add the
provider or the program to the directory, regardless of whether the
provider or program is already in another online or printed directory
or is clergy.
(c) (1) If a person who desires to reject recourse to no-fault
dissolution of marriage applies to the county clerk for a marriage
license, the county clerk shall ask if the couple has received or are
receiving marriage skills training, and from whom. If that couple
has not, or if the answer is vague, the clerk or deputy shall inform
that person that training may be available from clergy, from programs
offered by religious institutions, and that both nonreligious and
religious marriage educators are available from the providers and
directories that are authorized by subdivision (a).
(d) Whenever marriage skills training is available in a geographic
area, information describing what marriage skills training is, where
it is available, and the purpose for marriage training, shall be
made available to the public. This information may be provided to the
public by the Internet, and also may be provided to the public in
any of the following circumstances:
(1) Upon application for a marriage license.
(2) Within offices of civil marriage celebrants.
(3) Within governmental offices that offer family services or
counseling, including any that provide services to single or married
parents or to newly released former prison inmates.
(4) Court clerk's offices that deal with domestic relations or
juvenile delinquency cases.
(5) Providers of court-referred or government-referred dissolution
of marriage education, parenting education, or custody education
programs.
(6) When taking marriage preparation classes, the couple shall
undergo the training together. If required by law or court procedures
as a prerequisite to dissolution of marriage, the individual parties
may undergo it separately and need not both choose the same program
or provider.
1636. (a) Except for evidence of living apart, a minor child of
either of the parties to a proceeding for dissolution of marriage
shall not give evidence of grounds for dissolution of marriage and
any statement of a child, by hearsay or otherwise, shall not be used
as evidence of grounds for dissolution of marriage.(b) Except for
evidence of living apart, imprisonment, or conviction of a crime,
evidence of grounds of dissolution of marriage shall not be heard in
open court, but instead shall be heard in closed proceedings of the
court.
(c) The court may nonetheless consider any evidence that it finds
to be relevant to matters before it. The sufficiency, credibility,
weight, role and use of admissions by the parties, shall be the same
in dissolution of marriage actions pursuant to this chapter as in
other actions in equity or at law.
(d) This section only applies to dissolution of marriage
proceedings for marriages subject to this chapter.
1637. This chapter applies as follows:(a) Section 1632 applies to
couples married on or after the effective date of this chapter,
except as specified in subdivision (b).
(b) Section 1633 does not apply to couples who were not married in
this state or residents at the time of marriage, except:
(1) If the couple completed a choice form pursuant to subdivision
(a) of Section 1633, or a similar law of another state, indicating an
intent to be subject to the procedures prescribed by Section 1633.
(2) If it is proven that the law prevailing at the time and place
of a couple's marriage outside this state did not provide for
unilateral no-fault dissolution of marriage as described in Section
1633.
(b) If a couple was married in another state or country whose law
at the time allowed a couple to make a choice of dissolution of
marriage rules at the time of the marriage or later during the
marriage, or if a couple made such a choice in another state at some
time during the marriage pursuant to legislation, and if that couple
has not completed a choice form in this state, then the grounds for
dissolution of marriage and other substantive requirements chosen by
the couple at the time of the marriage or later, as provided by the
law of the state where they did so, shall apply instead of the
dissolution of marriage grounds and other substantive requirements
provided by this state's law.
(c) If the place of last marital cohabitation was a state,
district, territory, province, or country that adjoins this state,
and one party to the marriage still remains in that place, then this
state shall not exercise any jurisdiction that it has to grant a
dissolution of marriage unless the out-of-state party consents to a
dissolution of marriage, and to the proceedings for dissolution of
marriage being heard in this state's courts.
(d) Regardless of where the couple entered into marriage, if they
have been married less than five years, they shall either show proof
of having completed or shall complete premarital education courses
through providers listed in Section 1635. If the couple has been
married for five years or more, they may dispense with the premarital
education requirement.
1638. In any dissolution of marriage proceeding commenced on or
after the effective date of this act, if there is a choice form,
agreement, or an out-of-state marriage of the kind described in
Section 1637, which may affect whether Section 1632 applies to the
marriage, then any petition for dissolution of marriage shall refer
to the choice form or other agreement. Failure to do so shall not
affect the validity or timeliness of the pleading, and later written
or oral amendment or stipulation shall be allowed permitted up to the
time of the hearing on grounds for dissolution of marriage.
1639. Any marriage counseling or education required before
dissolution of marriage may be provided by any of the providers
listed in Section 1635, or by licensed behavioral health
professionals, psychologists, social workers, marriage and family
therapists, psychiatrists, pastoral counselors, certified family life
educators, or professional counselors, but not by a therapist who is
treating or has treated one of the spouses separately. The
individual parties may undergo it separately and need not both choose
the same program or provider.
SEC. 3.
If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.