The First Amendment to the U.S. Constitution, and counterpart clauses in each state constitution guarantee the right to the free exercise of religion for both spouses by stating that Congress / state legislatures may make no law that establishes a state religion or prohibits the free exercise thereof.  This free exercise is far more than belief, worship or expression – it is the right to act upon conviction,  make life decisions according to those convictions and do so without losing other constitutional protections,  such as the 14th Amendment which protects property from seizure without due process and guarantees equal protection under the laws. Additionally, the Federal and state versions of the Religious Freedom Restoration Acts (RFRA) passed in the 1990’s require government authorities to prove a “compelling” government interest in enforcing laws against individuals claiming a religious objection, and to use the least restrictive means to enforce the law if the first burden of proof is met by that governing authority.   For example, states that create immoral incentives rewarding the unilateral dissolution of marriage by petitioners who are adulterers, homosexuals, addicts, etc., by providing that marital misconduct not be considered in dividing the marital property or in child custody decisions are probably violating RFRA, as well as the 14th Amendment

This is very important to followers of Christ who believe several things about both marriage and divorce that directly conflict with U.S. divorce laws. It is also important because followers of Christ believe they must obey God first in all things if what He commands about the order of society (“What God has joined let man not separate”) stands in conflict with civil laws.   A follower of Christ who believes it is a violation of God’s law to file a divorce petition even when they know their spouse is engaged in various acts destructive to the marriage will often be discriminated against by unilateral divorce laws because they are seen as “condoning” the behavior and not taking “prudent action” even when that action would be against their biblical conscience.   Unilateral divorce laws that do not allow marital misconduct to be considered in dividing property are certainly not a “least restrictive means” of enforcement since several U.S. states do allow the consideration of maritial misconduct for that purpose.   Under most state laws, such a position can result in serious loss of financial abuse protections that would otherwise be available to them, and result in confiscation of even their retirement benefits late in life, in violation of the 1st and 14th Amendments to the U.S. Constitution.

So, does the state have any compelling government interest in enforcing unilateral divorce laws that discriminate against spouses who take biblical stands for the permenance of their marriage? Does the state have even a compelling government interest in elevating the interests of the “Petitioner” while totally subjugating the constitutional rights of the “Respondent” where religion is not involved?

Here are some arguments the state has relied upon to pass and enforce civil laws that suspend the constitutional rights of “Respondents” who have had the civil charge of “irreconcilable differences” or “irretrievable breakdown” brought against them with no effective right of defense in Family Law Court:

1. THE LIE: “Unilateral divorce is needed to keep battered or mentally abused spouses from being trapped in a bad marriage”

THE TRUTH: Returning to the fault-based system that balances the constitutional due process owed to both spouses should not unduly burden a battered or abused spouse in obtaining a divorce for cause. However, the definition of each of the various categories of abuse needs to be specifically and objectively defined, and can no longer be vague or subjective, as was too often the case in the past. Battered and abused spouses should then have no problem bringing clear and objective evidence to prove their case, and it is unlikely this was really an issue before unilateral divorce was enacted. Even so, society is better served if the biblical prescription for this situation is promoted. The biblical prescription calls for physical separation, with ongoing marital faithfulness by the offended spouse, and holding out the possibility of reconciliation if the misconduct can be treated and resolved.

See 1 Corinthians 7:10-11.

2. THE LIE: “The ‘majority’ of divorce cases are uncontested, so the few cases that are contested don’t matter enough to justify a change in the law”

THE TRUTH: Recent studies show that in 80% of divorces there was a spouse objecting and morally opposed – this is a clear majority of cases contested, or would be contested if finances permitted. The coerciveness of this law and the lack of financial means to contest a divorce petition, that most families face, serves to give a false picture.

 

3. THE LIE: “ ‘No-fault’ divorce only applies to couples who mutually agree to end their marriage”

THE TRUTH: In a cunning game of “bait & switch”, this misrepresentation was advanced in the earliest states to enact the new law. Two states actually did enact laws to this effect, but in California the uncontested piece was removed from the final version, and in Texas, it was enacted but ignored by the legal community. In all states, unilateral forced divorce is imposed on contesting spouses.

4. THE LIE: “If we go back to fault-based divorce, we would just go back to the ‘bad old days’ when two people who both wanted a divorce had to perjure themselves to make up charges against each other

THE TRUTH: This argument is so illogical that it’s amazing anyone could be gullible enough to buy it. It’s like swinging a sledgehammer to kill a gnat.   All it would have taken to deal effectively with that situation is offer a choice of UNCONTESTED-only “irreconcilable differences”, or if a spouse morally objects to divorce, continue to require proof of fault-based grounds.   At least one state did exactly that (Texas), but the entrenched interests in the legal profession did not carry it out in that fashion after it was so enacted sensibly by the legislature, so Texas ended up with unilateral divorce like all the other states eventually did.

 

5. THE LIE: “Unilateral divorce reduces the level of acrimony and perjury in a divorce case”

THE TRUTH: If anything, a law that strips one spouse (the moral objector) of all their constitutional rights to the free exercise of religion and conscience in raising their children, protection of contract rights from impairment by ex post facto laws, their right to equal protection under the law, and the right to protection of their property (not to even mention…their children) from seizure and confiscation without due process of law cannot credibly be represented as “reducing acrimony”.   If there is any “reduction” in the level of acrimony, it’s come merely from shutting people out of court altogether due to the unconstitutionally high cost of contesting an action that’s become nearly impossible to defend against.  The fact is, if there are children involved, the acrimony is not reduced, it’s only postponed until after the divorce, when big money is perpetually spent to bring issues back to court – making divorce very lucrative for the legal profession for years after the divorce.  In contested and uncontested cases, perjury also abounds no differently than before to conceal assets, exaggerate grounds allegations, thwart financial dissipation claims, etc.

 

6. THE LIE: “If marital misconduct is considered in any aspect of a settling a divorce case, it clogs up the court system”

THE TRUTH: Given that 80% of “respondents” are divorced against their conscience, will and choice, enforcing real consequences for the petitioner’s willful, destructive acts against the marriage in both the division of property and the determination of “best interest of the child” would probably start driving down the number of divorce petitions the same way that they skyrocketed when all the economic and parental consequences were foolishly removed by law.  What factually clogs up the court is the ease and lack of consequences for the wrongdoer in bailing out of their marriage and family responsibilities, sometimes serially.  When an adulterous spouse can no longer dissipate thousands or hundreds of thousands of dollars in pursuing an affair and then be awarded a chunk of the innocent spouse’s larger pension / retirement just for bringing the divorce petition, the courts would dramatically unclog.  The following states were wise enough to discern this, and have enacted divorce statutes that consider marital misconduct in dividing marital property: Alabama, Connecticut, Massachusetts, Missouri, New Hampshire, South Carolina, Vermont, Virginia, and Wyoming. (Several additional states consider marital misconduct for child custody and alimony determination.)

 

7. THE LIE: “Since unilateral divorce was enacted, the suicide rate among depressed wives has declined by 20%”

THE TRUTH: Whether or not this is objectively true, it’s also important to look at the endangerment and suicide rate in the children of the dissolved marriage. A reliable longitudinal study came out in 2012, the New Family Structures Study by Mark Regnerus of the University of Texas at Austin that sheds objective light on this argument by every type of living and child rearing arrangement.  Another factor that needs to be weighed and measured is the spouse and child endangerment that occurs when the stability of marriage is traded for subsequent cohabitation with violent and abusive unmarried partners – does the allegedly-reduced suicide rate among unfettered petitioners actually offset the incidence of murder, rape and battery that is the reality for women and children, post-divorce?

 

8. THE LIE: “Unilateral divorce laws serve society by reducing the level of immorality when unhappy spouses are freed to remarry who they wish”

THE TRUTH: Grim divorce statistics from second, third or forth marriages, far and away higher than the 1^st marriage divorce rate, cast considerable doubt on this argument. People are only truly happy when they unselfishly live for the good of others. Unhappy spouses tend to be self-focused people, which only reinforces their unhappiness. People who deal with their own issues before blaming their spouse tend to stay married and don’t tend to remain unhappy. Unilateral divorce laws have clearly increased the level of immorality in our society by reducing the marriage rate, by increasing unmarried cohabitation, rebound-lesbianism and generational sin that results when children aren’t reared well.  Given the economic incentives under the unconstitutional laws, combined with the acceptance of unmarried cohabitation, unilateral divorce has often encouraged deliberate spouse-poaching, the targeted breakup of a home.  Love is a decision, but emotions come and go.  Long-married couples all know that one falls in love with their spouse in a new and different way many times over throughout the course of their marriage.

9. THE LIE: “The potential threat of unilateral divorce has a good effect of making couples work harder to keep their marriages healthy”

THE TRUTH: Most people do not actually know that so-called “no fault” divorce is not by mutual consent, so this argument is doubtful at best.  The fastest-growing rate of divorce is among couples married 30 years or more, thanks to Viagra and emptying nests, as well as the common perception, even among allies of covenant marriage, that empty-nest marriages are more expendable than marriages with children.  In an increasingly immoral society, couples are in danger of working overtime to safeguard their marriage so that they no longer can feel relaxed and secure in it, the whole point of marriage.  To the extent this assertion is true, it is probably not attributable to fear of the law itself but to fear of the skyrocketing rate of divorce that the immorality of this law actually drives.  Repealing unilateral divorce would, over time, have a far more beneficial effect on the stability of marriages and society.

 

10. THE LIE: “Going back to the old fault-based system will overwhelm the courts”

THE TRUTH: See #6 above. This might be true for a short time due to the current high number of cases, but it would eventually dramatically reduce the number of divorce petitions actually filed, and most likely make petitioners who would otherwise file with unclean hands more willing to try meaningful counseling, clergy, etc., because they usually cannot prove any allowable grounds. Especially true if nebulous grounds such as “mental cruelty” were objectively defined in the law by specific behaviors and had to be proven with corroboration by a licensed counselor after “x” number of sessions. “Going back to the old fault-based system” is probably an exaggeration anyway, because there are endless creative possibilities for family-friendly measures to accompany the legal change needed to restore respondent and petitioner to a level playing field of due process, including enhancements such as counseling and conflict management / communication coaching.

 

7 Times Around the Jericho Wall  |  Let’s Repeal No-Fault Divorce

– by standerinfamilycourt.com