From no-fault divorce to same-sex marriage, the institution of marriage is under sustained legal attack in the United States. Fortunately, policy groups such as the National Organization for Marriage have helped pass Defense of Marriage Acts in more than 30 states, preserving the traditional legal definition of marriage as the union of one man and one woman oriented to the procreation of human families. This legislative trend has the potential to expand to as many as 40 states.
The effort to stop widespread divorce has been far less organized or strategic. Some states have enacted “cooling off laws,” such as Utah’s HB 316, that delay divorce proceedings up to 90 daysreflecting the proven benefit of a cool-down period in preserving stressed marriages. States like Louisiana and Alabama have championed so-called “Covenant Marriage law,” which reestablishes a solid contractual framework for marriage. Even so, “covenant marriages” are offered as separate, optional alternatives to existing state marriage law.
Two neglected marriage statutes already on the books in many states may provide the silver-bullet solution to reinstating marriage as a real and enforceable contract: (1) Alienation of Affections Laws and (2) Adultery and Cohabitation Laws.
Alienation of Affections Laws
Alienation of affections is a tort legal action brought by a betrayed spouse against a third-party individual alleged to be responsible for the breakup of the marriage. In alienation-of-affections lawsuits, the defendant is typically the illicit lover of the unfaithful spouse. (However, family members, counselors, therapists, and clergy who advise a spouse to get a divorce have also been sued for alienation of affections.) Alienation of Affections Laws are presently enforced in North Carolina, Utah, Mississippi, New Mexico, South Dakota, Hawaii, and Illinois. Among states with alienation of affections laws, North Carolina appears to have the most active enforcement, with as many as 200 cases each year. See the following articles:
“North Carolina wife wins multi-million dollar alienation of affection case, to chagrin of liberals”
Adultery and Cohabitation Laws
Adultery is a criminal act in Virginia and 22 other states. In Michigan, Idaho, Massachusetts, Oklahoma, and Wisconsin, adultery is a felony (not merely a misdemeanor). As an example, Florida’s code contains a statue against both adultery and cohabitation (See 798.01 and 798.02).
Such laws, if revived and enforced, would effectively restore marriage as a serious and legally-binding contract enforceable by law.