Posted on 03/19/2004 4:58:57 PM PST by CatherineSiena
In the year 860, a king named Lothair II sought a divorce from his wife, Theutberga. Her marital transgressions, according to the king, included incest and sorcery. Theutberga denied the charges and demanded a trial by ordeal. A stand-in jumped into a kettle of boiling water and emerged unscathed, proving Theutberga's innocence.
Nothing so dramatic awaits Marie Macfarlane, a 41-year-old mother of four from Westlake. But a trial is what she wants.
Her husband, William "Bud" Macfarlane, has filed for divorce, accusing his wife of "extreme cruelty" and "gross neglect of duty" - a brutal legalese that she says cannot describe her marriage. So Marie, a devout Catholic, is taking a stand not often seen today: She's fighting to stop the divorce altogether.
"I'm innocent. There's no way my husband is going to prove that," she said of the charges raised against her in Cuyahoga County Domestic Relations Court. "From my perspective, I'm being punished and my children have been punished because my husband is having a lapse in character."
William Macfarlane and his lawyer, Thomas LaFond, would not comment for this story.
Avoiding an unwanted divorce is much harder than it was in Theutberga's day, when the pope would refuse one even for a king.
These days, divorce is commonplace, and of less moral stigma than it used to be.
Where once some states didn't even recognize it, today a Nevada boarding house known as the home of the "quickie" divorce is on the National Register of Historic Places.
Where once some states didn't even recognize divorce, today a Nevada boarding house known as the home of the "quickie" divorce is on the National Register of Historic Places.
Marie Macfarlane is among the growing number of people who don't think this is a healthy trend. Some researchers and sociologists, both conservative and liberal, have come to view marriage as an essential social institution, benefiting children in particular. With politicians, they've coalesced into a so-called "marriage movement" seeking to promote long-lasting marriages, and to employ the government to help.
Couples in Arizona, Arkansas and Louisiana now can agree to "covenant marriages," contracts creating self-imposed obstacles to divorce stricter than those in existing law. Citing the high number of single parents and children in poverty, President Bush and Congress have encouraged marriage - and, by implication, discouraged divorce - in their welfare-reform agendas.
"There is a cultural war going on over values in this society," said Macfarlane's lawyer, Kevin Senich. "It's influencing the way some people are looking at divorce court and their rights."
Threads of those traditional attitudes can still be found in many state divorce laws, including Ohio's.
Divorce in Ohio is still viewed as a contest, with one spouse proving the guilt of the other to win a decree from a judge. But in response to the "no-fault" divorce reforms of the 1970s, lawmakers made it easier for couples to divorce if both spouses say they are incompatible, or if they have been separated for a year. (Couples also can receive a marriage dissolution if they come to court with a joint agreement in hand.)
Otherwise, a divorcing husband or wife must prove one of 11 grounds against his or her spouse, such as abandonment, adultery, bigamy, "habitual drunkenness" or fraud. The grounds most commonly invoked are the most subjective ones: extreme cruelty and gross neglect of duty.
While the law seems to juggle both traditional and liberal views of marriage and divorce, the courts seem to tilt to the latter, broadly defining what's cruel or neglectful to minimize litigation and avoid leaving people in unhappy marriages.
Trials in domestic court are uncommon, and they tend to be about child custody or property, not whether a divorce should be granted in the first place.
"If somebody wants a divorce, they usually get it," said Lorain County Domestic Relations Court Judge David Basinski, who has denied just four divorce petitions in 15 years.
Because the law presumes there are grounds for a divorce after a one-year separation, some judges see little reason to dismiss divorce cases only to see the couples come back after a year apart. Last year, more than 3,900 divorce petitions and 1,900 dissolution agreements were filed in Cuyahoga County.
"Even if we don't grant the divorce, we can't make people live together," said Timothy Flanagan, administrative judge for the Cuyahoga County Domestic Relations Court.
So in those rare cases like Macfarlane's, where one spouse doesn't want a divorce, the trials can become somewhat farcical, as the lawyers massage one person's unhappiness to fit the law's definition of extreme cruelty or gross neglect. And judges are given great discretion to decide when that threshold is met.
Records of court cases from around the state show that the most everyday annoyances can add up to extreme cruelty. The husband who avoided housework and made noise while his wife studied? Extremely cruel.
The name-calling husband who wouldn't cough up the money to fix the house? Extremely cruel.
So was the obnoxious pot-smoker, the wife who refused to cook or clean, the guy who called his wife "squaw," and the woman who wanted to bury her husband next to her two ex-husbands.
"Courts have become very creative in finding fault," said Senich, who also is challenging the grounds of a divorce in appeals court. "It's eroded people's desire to stick through the bad patches in a marriage."
This doesn't sit well with Macfarlane, for whom divorce still carries a stigma. She says she wants to reconcile with her husband of 13 years, but fears the court procedures are aimed at splitting them up, rather than offering alternatives that could help her and her husband avoid it.
"I believe we do have the ability to be happily married," Macfarlane says. "Isn't it worth giving reconciliation a shot? Maybe not every marriage will get fixed, but some of them will."
Flanagan says the current law is better with the modern reforms. In the '60s and early '70s, when fault had to be shown in all divorces, a spouse could threaten to challenge the grounds as leverage for a more lucrative settlement of property or alimony.
"We were finding that grounds were being used as a bargaining tool and people had to buy their way into getting a divorce," Flanagan said. "It wasn't right."
But Flanagan doesn't believe Ohio should adopt a purely no-fault system, like California and 15 other states.
"To some people, the grounds are very important, and I think we should have that opportunity," he said.
Is it me, or is this just a tad bit illogical?
Ok nobody can tell me that he didn't show signs of being a major jerk before the marriage. These kind of things don't just suddenly pop out of nowhere.
So why on earth did she marry him in the first place?
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