By Beverly Willett
Courtesy of Washington Examiner
Until sued for divorce, many spouses have no idea they can be divorced without cause and against their will.
I’m a lawyer and I, too, was in the dark right up until my husband left. So why is this violation of the U.S. Constitution that has shattered innocent lives not on the agenda of any candidate running for high office?
Fifty years ago this summer in 1969, California Governor Ronald Reagan signed the first no-fault divorce statute into law. Since then, all states have enacted similar legislation. Despite early applause from lawmakers that these laws would serve couples, they have negatively altered the landscape of marriage and family in the United States and violated the U.S. Constitution.
The 14th Amendment mandates that no person be deprived of life, liberty or property without due process of law. The Amendment’s procedural protections include the plaintiff’s obligation to assert grounds, the defendant’s right to be heard, including the right to cross-examine and call witnesses, and offer evidence, and the right to impartial decision-making. But spouses sued for divorce have no right to their day in court. No weighing of evidence takes place. Only one spouse need allege, without proof or specificity, irreconcilable differences or that the marriage has irretrievably broken down.
No allegations of harm or misconduct are required. Innocence counts for nothing. The word of the person who wants the divorce is alone enough. Before passage of no-fault, marriages were dissolved on the basis of marital misconduct, such as cruelty, abandonment, and adultery. Just like in every other lawsuit, plaintiffs had to allege and prove a violation of their legal rights—the very definition of justice. But lawmakers abolished this requirement in divorce cases.
They claimed it encouraged animosity between spouses, drove up litigation costs, and led to institutionalized lying – with the latter, even if both spouses were innocent but wanted out, one still had to take blame. This last issue could have been solved easily by permitting divorce by mutual agreement.
Legislators further maintained no-fault would drive down the divorce rate, decrease spousal hostilities, and lower litigation costs. The opposite occurred. By 1980, the national divorce rate had doubled to 50%. The number of matrimonial lawyers exploded.
These laws also transgress the Constitution’s guarantee of substantive due process. In its decision legalizing same-sex marriage, the U. S. Supreme Court reiterated the fundamental right to marriage and its sweeping benefits – everything from companionship and security to safeguarding children to tax, inheritance, health insurance and myriad other benefits. No-fault, however, renders these rights hollow. They must be forfeited without cause or compensation.
The fallout from no-fault divorce has thus been financially, emotionally and physically devastating to divorced families with increases in poverty, suicide, depression, drug and alcohol abuse, and more. Adultery has been normalized. Approximately one million children a year become divorce statistics.
Although the divorce rate has decreased in recent years, it remains much higher than pre-no-fault days and marriage rates have plummeted, from 72% to 50%. Divorce plays a part in the increased rate of cohabitation, with marriage becoming more an entitlement reserved for the privileged. Divorce rates for baby boomers have also skyrocketed, doubling since 1990, tripling for those over 65.
The Supreme Court held that marriage forms a union greater than two persons and constitutes a “keystone of our social order.” By definition, then, no-fault is anti-marriage, bestowing absolute power on the spouse who wants out for any reason whatsoever. It reduces the marriage contract to one terminable at will, making it no contract at all.
Any grade-schooler can understand this patent unfairness. Later in life, Reagan told his son Michael he regretted signing California’s Family Law Act. My divorce was final in 2009, one year before New York became the last state to adopt no-fault. I counted myself lucky and thought I’d be protected. But lawyers and judges pressured me for years not to exercise my rights. As my lawyer told me, in practice New York had already become a no-fault state, long before the legislature and governor made it official. Although I successfully defended myself against the wrongful charges, and hoped my husband would finally come home, he simply moved to New Jersey, where no-fault had been enacted. I ran out of options. My lawyer had been right.
Since then, I’ve been writing about divorce and advocating for reform. But repeal and other reform efforts have been routinely crushed. Protestors assert that repeal would remove their choice to leave a marriage, ignoring the fact their spouses are stripped of their rights. State legislators are often lawyers and businesspeople, and the divorce industry is a multi-billion dollar operation with powerful constituents who profit from family dissolution. Many women claim any reform will roll back progress made combatting domestic violence, even when proposed bills have maintained protections and are designed merely to encourage reconciliation in low-conflict marriages.
Those courageous enough to speak up about their horrific experiences are called names and punished in family court, something I’ve experienced first-hand. Researchers recognized early on that many women and children become impoverished by no-fault divorce too. So why don’t politicians care? Even the New York State chapter of the National Organization for Women opposed adoption of no-fault divorce in New York. Supreme Court cases in the modern era have marked watersheds in the nation’s due process history, from overturning the ban on interracial marriage to recognition of rights of privacy to the gay rights revolution.
The Supreme Court has never recognized a fundamental right to divorce, but for 50 years state divorce laws have nonetheless legislated such a de facto right. If such a right existed, however, wouldn’t it logically arise out of the right to marry, without which it could not be exercised? And if consent of both parties is required to exercise the right of marriage, wouldn’t it follow, absent fault, that the consent of both spouses is required to dissolve a marriage?
Fifty years of this barbaric failed experiment is more than enough. It’s time to repeal these unconstitutional laws, uphold the right of marriage, and restore fundamental fairness in our family courts.