Posted on 05/08/2015 6:49:06 AM PDT by St_Thomas_Aquinas
What is no-fault divorce?
When you ask most people, they will say it’s a mutual-consent process, or that it preserves privacy, or that it eliminates blame for the failure of the marriage.
Not many people will answer that it’s a lawsuit in which one party is suing the other party. And even fewer will know that it came from the Soviet Union.
Like previous divorce actions, no-fault divorce is still a lawsuit, which means that one party is invoking the state’s police powers against the other party. The main difference now is that the person filing for divorce no longer has to provide a reason for why they’re doing it. This type of lawsuit is unique; it’s the only type of legal action devoid of any ‘claim’ (complaint), and if the party being sued doesn’t know the complaint, then there’s no possibility of a defense.
As for the communist origins of no-fault divorce, a 1975 law review article by Donald M. Bolas entitled, “No Fault Divorce: Born in the Soviet Union?” explains how, after speaking with Russian lawyers, he stumbled upon how Soviet divorce law may have influenced our own laws.
Bolas explains that when the Bolsheviks took over in 1917, religious marriages were no longer recognized by the state. Marriage became a “state action” and divorce became merely an administrative process known as Russian Post Card Divorce. One spouse simply filled out the paperwork at city hall and the other party was then notified by mail that they were no longer married. Some people married twenty times. There was also a ‘free love’ bureau where people could sign up for partners.
The fact that this type of law increases the divorce rate is proven every day in the United States. Since the onset of no-fault divorce, the divorce rate doubled with one divorce granted for every two marriages that take place. In terms of sheer numbers, approximately a million divorces are finalized each year, translating into 3,000 divorces every day.
How coincidental that the U.S. divorce rate is among the highest in the world, vying only with Russia!
Another interesting fact about no-fault divorce is how strikingly similar its underlying thinking is to abortion law. In fact, laws dealing with both subjects were being drafted at the same meeting. This is how it all began.
History
In 1970, a national group of lawyers gathered for their annual meeting at the Colony Motor Hotel in Clayton, Missouri, just outside of St. Louis. At this meeting, two new ‘model’ laws were being drafted and debated. These laws would serve as ‘blueprints’ for state legislators around the country to enact as state laws. The purpose was to create more uniformity in state laws. One of these laws was called the Uniform Marriage and Divorce Act (UMDA) and the other was the Uniform Abortion Act (then, in 1973, Roe v. Wade overturned all state abortion laws).
A common theme found in both of these debates was the word viability and this word would be operative in rationalizing both of these laws.
In the case of abortion, the discussion revolved around the viability of the human life, meaning its potential for survival outside the mother. The divorce debate was similar: a marriage could be terminated “on the basis that it no longer is a viable institution,” according to the transcripts that have been preserved from these debates.
Using viability as the operative term would soften the discussion on divorce, or abortion, making these new laws more palatable to the public. This way of thinking would also help cover up the truth so we wouldn’t have to ‘look’ at the reality: that both are really destructive acts. One act destroys the product of the one-flesh union while the purpose of the other act is to destroy the one-flesh union itself.
During a pregnancy, we now are able to ‘see’ the reality of life due to technical advances. However, in the case of marriage, there isn’t any test. One person’s word suffices. Judges and lawyers don’t check for vital signs in the marriages, which assumes they are all dead on arrival.
The label given to this new type of divorce is something of a misnomer. The term ‘no-fault’ came into the vernacular with the introduction of ‘no-fault’ car insurance. The rationale behind no-fault car insurance was to move cases more quickly into ‘settlements.’
The same is true for no-fault divorce because now the emphasis is on moving cases into mediation where settlements are supposed to be reached, conveniently skipping the step of determining viability. Once a petition for divorce is filed, the marriage is essentially doomed, since no one checks for any pulse.
The term “no-fault” has served masterfully to cover up something that is far more sinister. The idea that the State is forcing people out of their marriages is hard to fathom but because every divorce petition is granted, and none are ever denied, then there are certainly a few viable marriages that meet an untimely death.
Conciliation/Reconciliation
Before the onset of no-fault divorce there was a burgeoning activity around the country called the Conciliation Court Movement with the focus on marital reconciliation. This movement began in 1939 when California enacted its Children’s Court of Conciliation Law in order to:
… protect the rights of children and to promote the public welfare by preserving and promoting family life and the institution of matrimony, and to provide means for the reconciliation of spouses and the amicable settlement of domestic and family controversies.
By 1970, Conciliation Courts were operating in Alaska, Arizona, Hawaii, Illinois, Michigan, Missouri, Montana, Nebraska, Montana, North Dakota, Ohio, Oregon and Wisconsin, using a growing body of knowledge and techniques to help restore family life. But now, such lofty goals cannot be found anywhere in our statutes.
When no-fault divorce entered the picture, the emphasis in conciliation courts soon changed to ‘divorce with dignity.’ Settlement negotiations took place under the auspices of a mediator who assisted the courts in keeping the conveyor belt moving.
Is there another possibility? Can distressed spouses find ‘relief’ for their anguish? Could we create Marriage Support facilities that operate in the same way as the Pregnancy Support facilities that offer another answer than abortion? Marriage Support facilities could do the same thing by offering couples the help they need to stay together.
In many ways, the Church might be the perfect home for these facilities. Tribunal offices could incorporate the Conciliation Court model, summoning couples from the civil courts. At this time, spouses are typically directed to Catholic Charities, but this is not enough because the problem requires a blending of both legal and pastoral initiatives.
Also needed are skillful practitioners who are trained in multiple fields. Working with a dyadic relationship is much harder than working with one person individually. Not many practitioners can handle such a challenge without bringing their own biases into the work.
By all appearances we are a nation that wants to defend traditional marriage, as evidenced by the number of state constitutional amendments that have passed. The next step is to protect marriages from being destroyed in this country’s no-fault divorce mills.
“A contract has to rest on some kind of law or precedent”
Where in the world did you get that idea?
It absolutely does not. A contract is just an agreement between two or more parties. Actually it doesn’t even have to be written, it can be verbal.
OK, I see what you're driving at now. There would have to be some evidence that would withstand legal scrutiny.
"Fault" divorce was the nationwide norm prior to 1970, so there is plenty of jurisprudence and case law to draw from in its re-establishment, although at the moment the genie appears to be out of the bottle.
I don't think it's that simple. You can't agree to sell yourself into slavery, AFAIK.
Regarding marriage, even pre-nups have dubious value, right?
What if a couple draws up a contract for a polygamous relationship? Should that be legal?
What if a man and woman want to draw up a contract to auction off their children? Should that be legal?
The bottom line is that the State has the right to regulate marriage for the good of men, women and children. Irregular arrangements are detrimental to society.
You're free to disagree. But these eternal truths were self-evident for all of recorded human history, until now. And I don't think that it's possible to separate marital law from the State, since the State, at least as a last resort, holds a monopoly on the lawful use of coercion in settling disputes.
Check out this History of Marriage from the old Catholic Encyclopedia. It's not a particularly Catholic entry, since it's simply describing the history of marriage.
Taking the word natural in its full sense, we may unhesitatingly affirm that monogamy is the only natural form of marriage. While promiscuity responds to certain elemental passions and temporarily satisfies certain superficial wants, it contradicts the parental instinct, the welfare of children and of the race, and the overpowering forces of jealousy and individual preference in both men and women. While polyandry satisfied in some measure the temporary and exceptional wants arising from scarcity of food or scarcity of women, it finds an insuperable barrier in male jealousy, in the male sense of proprietorship, and is directly opposed to the welfare of the wife, and fatal to the fecundity of the race. While polygamy has prevailed among so many peoples and over so long a period of history as to suggest that it is in some sense natural, and while it does seem to furnish a means of satisfying the stronger and more frequently recurring desires of the male, it conflicts with the numerical equality of the sexes, with the jealousy, sense of proprietorship, equality, dignity and general welfare of the wife, and with the best interests of the offspring.
“I don’t think it’s that simple. You can’t agree to sell yourself into slavery, AFAIK.”
Sure you can... Think student loans.
“Regarding marriage, even pre-nups have dubious value, right?”
As long as what their agreeing to is not forbidden by some other law which would make it invalid.
“What if a couple draws up a contract for a polygamous relationship? Should that be legal?”
It’s not illegal to have a polygamous relationship any more, you can just only register one spouse with the state. (ie; cival marriage)
“What if a man and woman want to draw up a contract to auction off their children? Should that be legal?”
This falls under contracting for something that is illegal under criminal law. That in a contract would not be binding...
Nobody insists that the State set up conditions for initiating or terminating relationships predicated upon sharing bonsai or bicycling or classic British films. And relationships involving property land, homes, exchange of goods and services, can be readily taken care of by private contract.
I have often said this in relation to the irrationality of "gay marriage." What for? What friends demand legally enforced "twosiness"? It calls to mind a banner I saw in a crowd shot of the big pro-traditional-marriage march in Gay Paree: a couple of flamboyant queers proclaiming "We're gayer without marriage."
So it seems marriage is primarily set up, not to secure the consortium and interests of adults, but primarily to secure the rights and interests of children.
Do children no longer have rights? Do thy no longer have interests? If there is truly "NO FAULT" in a marriage (the 5A's: no adultery, assault, abandonment, addiction, abuse) how is it in the children's interest to dissolve the marriage?
It seems to me that the State's interest --- the public interest --- in preserving marriage for the sake of the offspring, would naturally call for disincentives to divorce, and incentives to reconcile.
Not the contrary.
Children have a right to a father and a mother who are married to each other.
They still do.
Well said. The children get lost in all this.
My state adopted no-fault in 2007. Until then, many couples were separating and staying separated, never to reconcile again. They just couldn't afford the actual divorce.
IOW, no-fault divorce didn't destroy those marriages; they already were destroyed. No-fault simply made it possible to turn those separations into official divorces.
In the meantime, "fault" divorce is still an option.
BTW, even with no-fault, the plaintiff still has to give a reason - such as separation for 18 months or irreconcilable differences.
The problem isn't with no-fault. The real problem for many years has been that, even when "fault" can be shown, it has no effect on support, child custody, etc., as far as the courts are concerned.
Interesting...OBVIOUSLY the attempt here was to weaken the country by DESTROYING families. Seemed to have worked quite well, too.
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