H. B. 2682
(By Delegates Harrison, Greear, Walters,
Calvert and Henderson)
[Introduced February 23, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend chapter forty-eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-d, relating to
domestic relations; creating the marriage contract act; and
providing that the dissolution of a marriage will only take
place by showing a preponderance of the evidence by one
party of the fault of the other party which constitutes
grounds for the end of a marriage.
Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2D. MARRIAGE CONTRACT ACT.
§48-2D-1. Marriage contract.
Two persons of the opposite sex may, either prior to or
after a marriage is lawfully and duly solemnized, enter into a
written marriage contract providing that the marital relationship
will not be dissolved except on a showing by a preponderance of
the evidence by one party of the fault of the other party which
constitutes grounds for the dissolution of the marriage, as
specified in the marriage contract.
§48-2D-2. Enforcement by court.
If the requirements for enforceability as defined in this
article are met, a marriage contract shall be enforced by a court
of competent jurisdiction and the marriage of the parties shall
not be dissolved or modified except under the terms of the
marriage contract.
§48-2D-3. Legal proceedings to dissolve marriage.
A party to the marriage who believes that the marriage
contract has been violated and that the grounds specified in the
contract exist for dissolution of the marriage may institute a
legal proceeding to dissolve the marriage, and if the grounds as specified in the contract are proven, that party shall be awarded
a decree of dissolution of marriage.
§48-2D-4. Enforceable written marriage contract.
The written marriage contract, to be enforceable, must
contain the following agreements between the parties:
(a) The written marriage contract contains the exclusive
understanding and agreement between the parties regarding the
terms of continuance of their legal marital relationship.
(b) The marriage of the parties shall not be dissolved or
otherwise modified except by mutual consent of the parties or
upon a showing by a preponderance of the evidence by one party of
the fault of the other party which constitutes grounds for the
dissolution of the marriage, as specified in the marriage
contract, in a court of competent jurisdiction. Those acts that
constitute fault must be set out in the marriage contract and
must not be contrary to public policy in order to justify the
dissolution of the marriage of the parties.
(2) Those acts that constitute fault may include:
(A) When consent to the marriage of the party to the
petition for dissolution, legal separation or declaration concerning validity was obtained by force or duress or fraud of
the other party;
(B) When the party filing the petition for dissolution,
legal separation or declaration concerning validity was incapable
of consenting to the marriage because of physical or mental
incompetence;
(C) When a party commits adultery;
(D) When a party is impotent and the party filing the
petition for dissolution, legal separation or declaration
concerning validity was unaware at the time of the marriage that
the other party was or was likely to become impotent;
(E) When a party is infected with a sexually transmitted
disease and the party filing the petition for dissolution, legal
separation or declaration concerning validity was unaware at the
time of the marriage that the other party was so infected;
(F) When a party has abandoned the relationship or has
disappeared for one or more years;
(G) When a party has an habitual and ongoing addiction to
alcohol or drugs;
(H) When the husband continually neglects or refuses to make reasonable provision for the basic needs of the family;
(I) When a party has been imprisoned in a state, federal or
foreign prison for at least two years;
(J) When a party is continually treating the other party or
any minor natural, adopted, step or foster child residing in the
home of a party, with physical abuse or extreme mental cruelty or
any such child with sexual abuse;
(K) When a party is determined to be legally insane; and
(L) Any such other actions or circumstances as shall be
agreed by both parties at the time the marriage contract is
signed.
(c) Any legal proceeding involving the marriage contract
shall be brought in the circuit court. The rules of civil
procedures shall govern all proceedings. West Virginia shall
retain jurisdiction over all actions involving the marriage and
the laws of this state shall apply. A dissolution of marriage,
divorce, legal separation or declaration concerning the validity
of the marriage that is not in conformity with the marriage
contract and the law of West Virginia shall have no force or
effect in West Virginia.
(d) The parties must acknowledge that each recognizes that
in the absence of a written marriage contract, either party may
petition the court for a dissolution of marriage on the grounds
that the marriage is irretrievably broken and the petition shall
be granted in accordance with the provisions of article two of
this chapter. The parties must state in the written marriage
contract that each, by executing the document, gives up that
right and agrees to be bound solely by the terms of the written
marriage contract to determine the grounds that will enable a
party to successfully petition for dissolution of the marriage.
(e) The written marriage contract shall not be enforceable
until the marriage is duly and lawfully solemnized.
§48-2D-5. Jury trial on contested issue of violation of written
marriage contract.
(a) When violation of a written marriage contract is alleged
and the responding party contests the petition or denies the
allegation of fault, the court shall submit the issue of whether
the marriage contract has been violated to a jury at the request
of either party.
(b) If the jury finds that a violation of the written marriage contract has occurred the court shall enter a decree of
dissolution of marriage. The court shall determine issues of
property division, child custody, child visitation and
maintenance requests by either party without submission of those
items to the jury.
NOTE: The purpose of this bill is to create the Marriage
Contract Act which provides that the dissolution of a marriage
will only take place by showing a preponderance of the evidence
by one party of the fault of the other party which constitutes
grounds for the end of a marriage. The bill authorizes written
marriage contracts between two persons of the opposite sex that
are enforceable in the courts of this state.
Article 2D is new; therefore, strike-throughs and
underscoring have been omitted.