by Standerinfamilycourt
Woe to those who call evil good, and good evil; Who substitute darkness for light and light for darkness; Who substitute bitter for sweet and sweet for bitter! – Isaiah 5:20
What does a materially-constitutional “no-fault” divorce law look like? Above all, for a unilateral divorce law to be constitutional, there must be no front-door (nor back-door) means to force a divorce on any unwilling spouse who has done nothing to seriously harm the marriage or family members: to the full extent that such harm is not objectively provable with hard evidence. Beyond that, no spouse should be deprived of property, parental rights, free association, free exercise of religious conscience, nor be subjected to arbitrary, vague charges that cannot be understood in advance sufficiently to avoid running afoul of them. In other words, any law that removes these explicit fundamental Bill of Rights protections without regard to proof of marital fault, over which the defendant has had reasonable self-control, should be deemed unconstitutional on its face.
Additionally, notwithstanding abusive past judicial precedents such as Maynard v. Hill, if the state law retroactively renders a contract unenforceable, this is a violation of Article 1 Section 10. After 50 years of divorce-on-demand laws which changed the marital contract from enforceable to unenforceable in most states, this primarily impacts a dwindling number of marriages that were contracted prior to the mid-1970’s, since in virtually all states, licensed civil marriages undertaken after enactment of a state’s unilateral “no-fault” law are merely registered cohabitations, voidable at-will after a defined waiting or living-apart period.
Finally, there should be no violation of the separation-of-powers between the branches of government, as laid out in Articles 1 and 3 of the Constitution. Most liberal, socialist schemes do indeed involve violation of the separation-of-powers between the legislative and judicial branches of government, or between the legislative and executive branches. For example, when a Federal Judge or Justice proclaims a new fundamental right, such as “privacy” without undergoing the rigorous Congress-based, state ratification-based process of amending the Constitution, there has been a violation of separation-of-powers. Hence, judicial precedents and subsequent legislation which rely on an alleged right to “privacy” to legalize or expand abortion, overrule sodomy or adultery prohibitions, require state-paid contraception (and the like), would have been seen as constitutionally invalid by our nation’s founders.
Under this same principle, a legislature may not pass a law that strips the judicial branch of its assigned powers under Article 3 (and its state constitution counterparts), by channeling matters through a court only for appearance sake, while reducing the role of the judges from discretionary to purely administrative. Similarly, legislatures may not delegate powers reserved to them to another branch. There used to be individual legislative divorces enacted as special laws in the legislature which fell into disfavor in case law. Yet “no-fault” unilateral divorce laws are essentially legislative divorces in blanket form, with the states’ family courts administering them in a way that generally does not require judicial discretion.
When any state’s divorce statute eliminates objective fault-based grounds for divorce and declares that the court “shall” * grant a contested divorce upon administratively-valid petition, with no discretionary consideration of the facts in the case as they relate to allegations about undefined terms such as “irreconcilable differences” or “the best interest of the child / children / family”, a violation of Article 3 has resulted. Under this exacting standard, it is reasonable to argue that even mutually-consenting “no-fault” divorce is unconstitutional on these same separation-of-powers grounds, even though fundamental rights of neither spouse would be violated under a strictly consensual divorce law, whereas the fundamental rights of the children of the marriage, and the objective state interest in limiting the cost of services to families, might still be compromised. (Hence, in this blog, use of the term “materially-constitutional” will refer to a state statute where the fundamental 1st and 14th Amendment rights of neither spouse is violated, and both spouses receive equal protection under the law, taken as a whole.)
* Existing Texas statute uses the term “may” instead of “shall”, but under the heavy-handed influence of the Texas Bar Association, their “family courts” consistently administer the law as though the judges have no independent discretion to deny unilateral divorce petitions. Texas is presently considering HB922 and HB926 (formerly HB93 and HB65, respectively), which will remove non-consenting no-fault grounds, but leave all other divorce provisions except the very brief 60-day waiting period unchanged.
Because of the high cost of serving (or mitigating societal ills from) broken families, a few states have experimented with opt-in “covenant marriage” laws (Arkansas, Arizona, and Louisiana) while maintaining all their regular divorce-on-demand machinery for those who don’t opt-in. Since there are no 1st nor 14th Amendment protections for those who don’t opt-in at the time of the marriage, these states don’t qualify as having constitutional divorce statutes. These states have extremely low rates of voluntary participation in these measures, and Arkansas in particular remains among the states with the highest divorce rates.
“Standerinfamilycourt” cannot possibly be familiar with key provisions of all of the various state divorce laws, though the “model” UMDA (Uniform Marriage and Divorce Act) provides a general roadmap, and various state-by-state tables are available which capture the variations in how the “no-fault” model was enacted and / or implemented in any given state. Not too long ago, a comrade in the effort to repeal unilateral grounds for divorce pointed out that there are two states, Mississippi and South Dakota, with consent-only “no-fault” grounds. Knowing how deceptively the historical practices around “no-fault” laws have developed in the various states (sometimes, even despite well-meaning original statutes), and seeing the relative divorce rates in those states compared with other states, SIFC was skeptical, and so, purposed to analyze both of these state statutes in detail to see to what extent this was likely to be true, as the laws were applied to real families. Texas, for example, will not have eliminated forced divorce on “no-fault” grounds simply by passing HB922, because existing law will be unchanged in a crucial provision that allows either spouse to file (purportedly) fault-based grounds based on living apart for 3 years, even if the filing spouse has refused to live with the non-filing spouse (who did not consent to the separation and therefore was not actually responsible for the alleged fault). Could there be a similar situation going on in Mississippi or South Dakota?
With somewhere between 75% and 80% of divorces nationwide opposed by one of the spouses, typically, a state’s divorce rate correlates with barriers to finalizing a divorce, such as the length of any waiting period or statutory living apart period required. Yet, neither Mississippi nor South Dakota figure in the states with the lowest divorce rate — both states are pretty much “middle of the pack” in their rates of marriage “dissolution”. Both states appear to have had their consent-based “no-fault” laws in place for a considerable length of time, not as a result of the sort of repeal that is being sought in Texas. According to 2017 statistics from the American Community Survey, South Dakota ranks 9th highest with a divorce rate of 13.59 per 1000 married couples of all ages. Mississippi’s rate is somewhat lower, at around 12 per 1000 married couples, as compared to states with the highest rates at 17-19 per 1000, and states with the lowest rates at 5-7 per 1000 married couples. If unilateral divorce is indeed restricted to fault-based grounds in these two states, why isn’t either state’s divorce rate in the lower ranges?
Why would South Dakota, for example, still rank only 33rd out of 50 states in protecting families, if unilateral “no-fault” divorce is restricted by statute ? We’re about to find out. Before looking at the state specifics, we need to reflect for a moment on the coercive power of the state bar associations in shielding the lucrative divorce trade, also in controlling all three branches of state government, and the degree to which the state budget benefits from Federal Title IV-D funds from court operating rules and from legislation that confiscates children from the families those courts have shredded. Then we need to look at whether other provisions in the divorce law which deprive law-abiding citizens who want to keep their families together of their due process and fundamental rights are counterbalancing the consent-only provision. There is also the religion factor, which layers over all of the other factors in law. States with the lowest divorce rates (sadly) tend to have the smallest “conservative” Protestant and Jewish populations, and a typically-higher Catholic population. Lastly, there is the dwindling marriage rate among younger citizens due to a law-driven deliberate preference for cohabitation, and ultimately causing the “per 1000 married couples” measures to disproportionately consist of divorced and remarried older citizens, especially in states where non-consensual “no-fault” grounds are the only grounds available. The map below shows data for those age 30 and under, where Mississippi likely has a higher young marriage rate than South Dakota, and a bit higher consensual divorce rate in that young age bracket.
In a picture where there are many “moving parts”, restricting to consent-only “no-fault” grounds most likely offsets other factors in keeping that state’s divorce rate lower than it would otherwise be, and improvements on other battle fronts (notably, the behavior and doctrine of the church) would catalyze with adopting a materially constitutional statute in lowering that state’s divorce rate.
Here is a summary table of the specifics of each state’s consent-only “no-fault” grounds, and surrounding statutes influencing the net degree of family protection. Mississippi appears to have enacted its “no-fault” law in 1972, while South Dakota’s base “no-fault” law was enacted in 1976, and modified in 1985, possibly to add back the mutual consent feature.
Deep Dive – No Fault by Consent Only (version 1).xlsb
In this table (click on document to expand), red shading indicates provisions in the law defective enough to override all or most benefits from requiring mutual consent for “no-fault” divorce grounds such as “irreconcilable differences”. Yellow shading indicates cautionary areas (“it depends”), and green shading indicates provisions that are materially consistent with Bill of Rights fundamental protections for the non-offending spouse and innocent family members. Demonstrably, most of the green and none of the red is associated with key provisions in the Mississippi statute, making it the most protective toward rightful families, of all the family codes in the nation, whereas South Dakota has left a few “back doors” open, whereby a unilateral divorce may ultimately be obtained without an innocent spouse’s consent, if traditional back-up allegations are pursued to exploit longstanding vagueness of definitions in the statute, such as “mental cruelty”.
“standerinfamilycourt’s” Conclusions:
Obviously we see the old adage, “the devil is in the details” when we take a close look at the consent-only “no-fault” divorce laws, with a critical eye to whether they nevertheless still effectively function as unilateral laws with delayed timing–by which people can still be manipulated by determined “family law” practitioners who, in the larger picture, continue to have an enormous financial conflict of interest with the true best interests of the family and the objective best interests of even the state.
South Dakota’s divorce statute is obviously better than that of 48 other U.S. states, but it still contains perverse financial incentives that boost the divorce industry at everyone else’s expense, and that encourage divorce coercion, because marital fault is not considered in either child custody (hence, still subjecting the citizens of the state to Title IV-D abuses) or in property division. Additionally, definitions of “abuse” as an alternative ground for divorce in the statute remain more vague than in Mississippi’s statute, which is a problem because “mental cruelty” has long been the next reliable “go-to” when other unilateral grounds are not available. Finally, the provision for defaulted, implied consent in South Dakota creates a weaker law than in Mississippi, and opens the door for process service abuses, which is also a potential issue with Texas’ HB922, as currently drafted.
All things considered, Mississippi comes the closest of all 50 U.S. states to having a substantially constitutional “no-fault” divorce law that is only unilateral when it comes to fault-based grounds. Among the best features of Mississippi’s statute:
-> No potential for abuse of a non-consenting spouse via default judgment provisions (rather than explicit appearance via joint petition, or service of process compliance).
-> 60 day waiting period, even with written mutual consent.
-> Some consideration of marital fault in property division, if the consenting parties cannot agree, and the offended spouse would be at a disadvantage.
-> Strong consideration of marital fault in child custody decisions
-> Fairly explicit and actionable definition of physical and mental abuse, in terms of defining severity, extent, duration and other terms that in most states are vaguely defined by intention. Limited “back door” available by resorting to cruelty allegations if “no-fault” fails to secure a “dissolution” decree.
– >The abandoner cannot allege “abandonment” nor “living apart” as back-door unilateral grounds, if unable to gain the non-offending spouse’s consent to the dissolution.
(Had the case against “SIFC” been brought in Mississippi, instead of Illinois, it is highly doubtful the petitioner would have prevailed on any grounds. Had the case been brought in South Dakota, the petitioner would likely have had to resort to false charges of “mental cruelty” in order to prevail, or there would have had to be a risky strategy of process service fraud leading to a default in-absentia judgment that could likely have been successfully challenged upon discovery.)
Why should it matter to take a deep look at what’s working in states like Mississippi, as we seek to repeal unilateral “no fault” grounds in additional states, such as Texas? One big reason is to be prepared for the likely charge from the powerful “family law” lobby that these laws have not significantly reduced the divorce rate enough that the “threats” to women, gays, and abused spouses from repealing unilateral grounds for divorce is justified. Looking at the above map, this will surely become a more prominent challenge if and when the movement begins to pick up steam–and purely emotional arguments can no longer carry the day, as they do today. We need to be armed with facts that demonstrate exactly why having a constitutionally-defensible statute may not have had the impact we would hope for, especially as it relates to those “back doors” left open in some states. The second reason is to clearly recognize and target other barriers to family preservation that lie outside the law — for example, immoral church practices, which might become more susceptible to reform under a tighter law. The third reason is to gain important comfort that the state of Mississippi has managed to survive for 43 years, over the entire divorce-on-demand era, as the only state with a materially constitutional consensual-only “no-fault” law which powerful special interests have never succeeded in overturning in court based on “privacy” challenges.
Do nothing from selfishness or empty conceit, but with humility of mind regard one another as more important than yourselves; do not merely look out for your own personal interests, but also for the interests of others. – Philippians 2:3-4
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7 Times Around the Jericho Wall | Let’s Repeal Unilateral Divorce!