When does marriage become a legal trap?
Divorce attorneys are bracing for a legal shift as more states adopt covenant marriage, a voluntary but restrictive contract limiting grounds for divorce. (Images from Shutterstock)
Marlene Pontrelli, a family law attorney with Dickinson Wright in Phoenix, Arizona, recalls a particularly disturbing divorce case involving alleged emotional abuse. What could have been a fairly seamless process was anything but because the couple in question was part of a covenant marriage.
In this instance, Pontrelli says, the court dismissed the case, stating that the couple, per covenant marriage law, must live apart for two years before even considering a divorce.
Divorce attorneys are bracing for a legal shift as more states adopt covenant marriage, a voluntary but restrictive contract limiting grounds for divorce.
Covenant marriage is a legally binding contract or agreement between a man and a woman. In these marriages, couples must complete premarital counseling, and divorce is only permitted with proof of adultery, sexual or physical abuse, imprisonment or abandonment for longer than two years. If the covenant couple legally separates, they can’t remarry because the divorce only ends their cohabitation, not the marriage itself.
The couples who do manage to separate are not entitled to the same protections as they would be in traditional marriages.
For example, says Tracy Moore-Grant, a mediator, arbitrator and founding partner of Patterson Moore Butler in Georgia, they don’t necessarily receive child support after a covenant marriage. She blames the conflict and confusion on religion officials, who she says are meddling in the practice of law.
Related article from ABAJournal.com: All you need is love—and a contract?
Erin Levine, the founder and CEO of Hello Divorce, and the founder of Levine Family Law Group, recently did a podcast on the subject, and she received an email from someone in a covenant marriage who is attempting to separate.
In her email, the woman explains that she entered the covenant marriage because her ex believed it was the Christian thing to do—only later realizing how much control she would lose as a result.
“I wish there was a way that I could have seen earlier that choosing to be in a covenant marriage meant that I would lose control. I had no idea about the divorce side of things when entering into this marriage because I was in premarital bliss. I wasn’t giving divorce two seconds of thought, and now, I’m almost embarrassed to say, I was in a covenant marriage.”
While many conservatives and religious communities see it as a way to promote family stability, legal experts caution that it may complicate separations, especially for those in toxic or abusive relationships. It also undermines same-sex marriages, as covenant marriages are limited to marriage between a man and a woman.
House Speaker Mike Johnson, a conservative Republican from Louisiana, is currently in a covenant marriage, and Arkansas Gov. Mike Huckabee converted his marriage to a covenant one in 2005.
Currently, covenant marriages are only allowed in Arizona, Arkansas and Louisiana, but Tennessee heterosexual couples will also have this option after July 1—those who are already married in Tennessee may change their marriage to a covenant designation—thanks to a bill passed by the state House of Representatives in January.
Missouri, Texas and Oklahoma have also filed similar covenant marriage bills this year. Oklahoma’s bill failed to pass the Judiciary Committee in the state senate, Texas passed the bill, and Missouri is pending. The Oklahoma bill would have given couples in covenant marriages the added benefit of a $2,500 tax credit. While Florida doesn’t have a covenant marriage law in place, there have been moves to limit alimony, which would potentially make it more difficult to divorce.
Still, the overall rate of covenant marriage is very small, with just 1-3% of marriages in Louisiana, Arizona and Arkansas being covenant, according to the National Healthy Marriage Resource Center. For example, in Maricopa (a conservative city in Arizona), there were 128,500 traditional marriages from 2020 to 2025—and 558 covenant marriages, says Cliff Summerhill, spokesman for the clerk of the superior court in Arizona.
While it’s not mandatory for anyone living in these states to enter into a covenant marriage, the idea creates a legal framework to support anyone interested in eliminating the traditional “no-fault divorce” laws.
“States are realizing the excessive amount of money some parties receive as a result of no-fault laws, and the harm that’s being caused to families as a result,” says Yonatan Levoritz, an attorney in New York City, and founder of the Levoritz Law Firm. “Covenant marriages are designed to be very difficult with a lot of red tape and a high burden.”
Kristyn Carmichael, a professional mediator with Couples Solutions Center in Phoenix, says covenant marriages tend to be on the rise when there are social concerns for lower marriage rates, high divorce rates and lower birth rates.
But, she says, by making someone prove why a divorce is needed, we are causing a lot of victims of domestic violence and financial abuse to be stuck in an unsafe marriage.
“It creates a barrier for the abused spouse, or simply the spouse without power, to leave the relationship,” Carmichael says.
Covenant marriage has much in common with fault-based divorce in that the spouse requesting the divorce is obligated to prove that their partner has committed an offense, explains Holly Davis, a founding partner of Austin, Texas-based firm Kirker Davis.
The fault-based system fell out of favor—though it’s still allowed in some states—because it created myriad difficulties for the court system. Davis explains that it was practically an invitation to perjury and falsified evidence from couples who were desperate to end their marriages, Davis says.
“The system tasked civil family law courts to act more like criminal courts, in essence, with deciding which spouse was innocent and which one was guilty, and who therefore deserved the punishment of divorce,” Davis says. “This divorce-as-punishment model failed to account for the existence of a mutual agreement between consenting adults that it was time to part ways.”
It was often the case, she says, that the partner who stood before the court with the most outrageous stories of private mistreatment won, whether that testimony was factual or not.
Likewise, since someone is held accountable in a covenant divorce, they are substantially more expensive, and they could paralyze an already overburdened court system, Moore-Grant says. To hire the staff and judges who understand the laws behind a covenant marriage would also increase taxes, she says.
As more states consider adopting covenant marriages, the legal and personal costs of making ‘til death do us part an ironclad contract remain to be seen.
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