Jerry Kopel

Suppose Stanley Kowalski proposed to Stella DuBois in New Orleans in September of 1997. If Stella said "yes", Stanley would likely opt for a "covenant" marriage under Louisiana's new marriage law in which the parties agree that proving "fault" such as adultery, abuse, abandonment, or a long separation, will be the only way to end the marriage.

Any lawyer in Colorado over the age of fifty is familiar with "covenant" marriages. In Colorado it was known as "fault" divorce, which meant you could not get a divorce unless you proved the other party:

Was impotent, a habitual drunkard or drug addict for one year, insane or mentally incompetent for three years; had committed acts of extreme or repeated physical or mental cruelty; committed adultery, or desertion for one year, or failure to support for one year; was convicted of a felony, or separated for three years.

These charges of fault with varying times required for specific acts, go back to the 19th century. Most attorneys tried to use the "cruelty" fault if possible. In 1971, Colorado adopted the Uniform Dissolution of Marriage Act, HB 1299, sponsored by Rep. Betty Ann Dittemore (R) and Sen. Joe Shoemaker (R) which provided for no-fault divorces.

No doubt some of the social conservative House legislators who call themselves Bunny Rabbits) have already requested the legislative drafting office to prepare legislation similar to Louisiana's, for introduction in the 1998 session. But they need to be aware of a loophole that they and the Louisiana legislature cannot close.

Suppose Stella finds out what Stanley did to Blanche DuBois (Stella's sister in a Streetcar Named Desire, in case you did not remember where you saw these names) in one of Stella's visits to Blanche at the sanitarium. Stella decides to end her marriage but she doesn't want to go through a nasty fault divorce in Louisiana in which evidence of Stanley's rape of Blanche would be placed in evidence. So what does Stella do?

She takes a bus to Denver and visits an attorney who suggests Stella (1) rent an apartment in Denver for six months, (2) change her voting registration to Colorado and (3) get a local job.

In 90 days she will have established "domicile" in Colorado which the state Supreme Court has interpreted to mean the same thing as "residence", and Stella will then be eligible to file for no-fault divorce. The case can be heard ninety days after Stanley is served with process.

Stanley might even show up for the divorce hearing and protest that he and Stella had entered into a Louisiana covenant marriage. But it won't do any good. Louisiana marriage and divorce law can't dictate to one domiciled in Colorado.

A 1969 law, CRS 14-2-210 states: "The right of any person to become a resident domiciled in the state of Colorado shall not be denied or abridged because of sex or marital status, and the common law rule that the domicile of a married woman is that of her husband shall no longer be in effect in this state."

Ninety days after Stanley is served with process the district court can rule that the marriage is "irretrievably broken" under CRS 14-10-106 (1).

If the Colorado legislature successfully passes a law similar to Louisiana's and even if they have it apply to anyone seeking divorce under a "covenant" marriage wherever entered, then Stella would likely have gone to Nevada instead of Colorado.

Nevada has made itself a prosperous state by doing everything the social conservatives find reprehensible. It is the only state with legalized prostitution. It was the original state for gambling casinos, and at one time was the only state for quickie divorces.

The divorce business in Nevada has declined somewhat since the adoption of no fault divorces in other states. Now that other states have pushed their way into the casino business, thereby hurting the Nevada economy, what better way to bring in more money than by becoming the ONLY no-fault divorce state?

It would not surprise me at all if Nevada money didn't help pass the Louisiana covenant marriage law.

* * *

One measure certain to be reintroduced in 1998 will be 1997's HB 1198 by Rep. Marilyn Musgrave, R-Fort Morgan, and Sen. Ken Arnold, R-Westminster, regarding the "invalidity of certain marriages." HB 1198 required that marriages be between a man and woman, and be licensed, solemnized, and registered.

Purpose of the bill was to ensure that if any other state allowed marriages between persons of the same sex, such marriages would not be recognized as valid in Colorado.

The measure was vetoed by Gov. Romer in 1997, as it was in the 1996 session...and as it will likely be in the 1998 session. That has nothing to do with why the legislature will pass the measure. It has everything to do with the 1998 election, when the issue will be used as a hammer on legislators (mostly Democrats and a few moderate Republicans) who voted against it.

If Rep. Musgrave REALLY never intended to ban future common law marriages (one of the reasons for Romer's veto), all she need do is add an exception to her bill by a new CRS 14-2-104 (3) stating:

"The requirements of subsections (1) and (2) do not apply to any common law marriage, as recognized by the Colorado Supreme Court, between a man and a woman, entered into in Colorado or any other state or territory that recognizes common law marriages between a man and a woman."

My guess is the bill will be introduced early, and pass early in anticipation of a vote to override a Romer veto. The House could possibly override a veto, but the 12 Democrats in the Senate who voted "no" in 1997 would likely do the same in 1998.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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