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Resources from Marriage Savers: Columns

How To Reform No Fault Divorce

January 14, 2009
Column #1,429

(Third of three parts)
Copyright 2009 Michael J. McManus

After two weeks and dozens of calls, the top person in the American Bar Association finally talked to me about No Fault Divorce.  What Anita Ventrelli, Chair of the ABA's Family Law Section, said was shocking.

I asked her if divorce is a law suit.  She said it was, which will surprise many spouses.  I then asked whether there was any defense one spouse could give in court against their partner's claim that the marriage had "irreconcilable differences." 

"I don't know of one," she replied.

"What if the other spouse says the marriage IS reconcilable?"

"The court holds that as long as one party to the marriage does not want to be married, you do have irreconcilable differences.  Both people do not have to agree."

I responded, "So the spouse trying to save the marriage always loses?"

"I would not agree that in having to be divorced, someone who does not want to be divorced - is losing, as long as they are treated fairly," Ventrelli asserted.

That's nonsense.  First, as she later acknowledged, "In every lawsuit some are winning and some are losing."  Second, if the ABA's top divorce lawyer can't think of any defense, the law is corrupt, utterly biased, and rigged to destroy America's most important institution, the family. Who benefits? Only the lawyers!

In any other law suit, the sued person always can get their day in court and can present evidence arguing the case. The judge hears both sides and makes a decision based on which person's evidence is most compelling.

Not in Family Law Court.  The person suing for divorce ALWAYS wins.

I asked Ventrelli, "What about the 5th and 14th Amendments guaranteeing that "no person be deprived of life, liberty or property without the due process of law?" 

She replied that if No Fault were unconstitutional, "We would not have it any more.  No Fault is not an unconstitutional taking of life, liberty or property."

That's an Alice in Wonderland response. The law is not constitutional because it exists, but because it has not been successfully challenged.  How is it constitutional for the opponent of a No Fault divorce to ALWAYS lose?  And lots of life, liberty and property are taken in a divorce.

Consider the case of "Dr. Peter Hopkins," 53, who didn't want a divorce, but was so determined to remain in the lives of his kids that he spent $250,000 in attorney's fees.  To do that he had to liquidate his retirement, taking a 50% cut (due to taxes), making his real cost $500,000. The result is he sees the kids for 48 hours every other weekend, one weekday per week, alternate holidays and four weeks in the summer.

The physician asserts, "No Fault Law is unconscionable.  It is un-American. How can the law deny the accused the right to defense?"

What's needed is to reform No Fault Divorce.  Peter Hopkins should have to agree to his wife's desire to divorce.

He says, "If there is marital conflict the couple should demonstrate they've made an effort to resolve it.   When that has occurred, and both agree to divorce, it should be granted. Without mutual consent, there needs to be a clear and objective fault by a high evidentiary standard such as recalcitrant infidelity or unrelenting acts of violence. The law's bias should favor maintenance of the marriage and the intact family - not its destruction. 

       "As a physician I have seen there's tremendous hope in the most hopeless situations. After someone is crushed by severe trauma or disease, I've seen them recover and adapt in remarkable ways," Hopkins said. 

        "In America we have no system for treating the marriage as we doctor patients. The law presumes the marriage is dead on arrival. A mere assertion by one spouse that the marriage is dead is sufficient to abandon any hope of treating it.  If we applied this logic to the practice of medicine we would assume that all patients with serious disorders are hopeless and withdraw all treatment from them."

My new book, How To Cut America's Divorce Rate in Half, proposes a "Modified No Fault Law" in which both parents of young children would have to agree to the divorce, if major fault is not proven. Childless couples and those with adult children could still get a No Fault Divorce. The proposed change is modest but it could cut the divorce rate in half.

"By giving the spouse who wants to save the marriage an equal voice with an unhappy mate, many marriages could be restored, perhaps saving most of them," asserts Evansville, IN Catholic Bishop Gerald Gettelfinger.