Repentance Cry

CITIZENSHIP, EQUAL PROTECTION, FAMILY LAW, FUNDAMENTAL RIGHTS,MARRIAGE, RELIGIOUS FREEDOM

CITIZENSHIP, EQUAL PROTECTION, FAMILY LAW, FUNDAMENTAL RIGHTS,MARRIAGE, RELIGIOUS FREEDOM

YOU ASKED: HOW CAN “NO-FAULT” DIVORCE LAWS BE UNCONSTITUTIONAL?

NOVEMBER 16, 2014 STANDERINFAMILYCOURT 

by Standerinfamilycourt.com

This post goes out to Barney, who raised a very valid question last weekend on our companion facebook page:  

Considering the current reach of our fairly new page, there must be dozens of critical thinkers like Barney out there with the same question.    SIFC is thankful for the question and the engagement,  an opportunity to contribute some expanded thought.    All great social reform conversations began exactly this way, and we of course could have just as easily been ignored, so Barney (and his silent counterparts) are sincerely a blessing.    Our legal team will, no doubt,  get the very same question from the bench next spring.     Indeed, I can quote a recent definition-of-marriage judicial  assertion very much to the point from Judge Stephen Reinhardt of the (liberal) 9th U.S. Circuit:

“If the defendants [states of Idaho and Nevada] really wished to ensure that as many children as possible had married parents, they would do well to rescind the right of no-fault divorce, or to divorce altogether.   Neither has done so.  Such reforms might face constitutional difficulties  of their own, but at least they would further the states’ asserted interest in solidifying marriage.”      

– Latta v Otter,  October 7, 2014

Judge Reinhardt, we’ll notice,  stopped well short of saying that such reforms would be unconstitutional.    As the spate of 5-4  Supreme Court decisions clearly demonstrate in cases where the competing fundamental rights of the opposing parties are actually valid on both sides, these competing rights must be prioritized and  must be carefully balanced.   Brilliant legal minds can honestly disagree on the appropriate balance of fundamental rights based on their particular world view, and hopefully they are not wasting taxpayer dollars by accusing one another of misunderstanding the Constitution.

In this blog, we could paste in links to various cases, but we’ve actually done so in several earlier posts, and will be doing so in the very next planned weekly post on relevant legal definitions, so for brevity we won’t do so here.   We’ll come back later and make appropriate linkages.

The basic rule is that a law is presumed to be constitutional if it is aimed a legitimate state purpose (however ineffectively).    That is, it is deemed constitutional unless it intrinsically, or by its means of implementation, it deprives a citizen or class of citizens of one or more fundamental rights.    In one recent example, various U.S. Circuit Courts have ruled that homosexual couples legally married in one state have a fundamental right to stay married if they move to another state:

What are some other fundamental rights?    They are basically anything in the Bill of Rights, or that an authoritative ruling has established as a binding precedent: (free exercise of religion, life, defense of property,  family privacy, parental rights in the education and direction of their children, the equal right to bring a defense against a criminal or civil accusation that would strip life, liberty or property, etc.).

If it’s established that a citizen’s fundamental right is being infringed by a state law, then it is no longer good enough just to have a legitimate state purpose behind it.    In that case, the state must prove two additional things for the law to still be deemed constitutional:   (1) that the state interest is compelling, AND (2) they are implementing it by choosing among available alternatives only the means that least infringes or deprives citizens of that fundamental right.   The Supreme Court has ruled numerous times that the 14th  Amendment requires this.   Meeting both thecompelling interest and the least restrictive means tests becomes very difficult for the state where there are indeed fundamental rights being intruded upon!

And how should valid but competing fundamental rights be balanced?   For example, in late term abortions, shouldn’t a 7-month pre-born child’s right to life be prioritized over the mother’s asserted  right to privacy?   Does the state truly have a compellinginterest in guaranteeing the mother’s right to privacy under the 14th Amendment, to the extent that it actually supercedes another person’s right to life?

How should someone’s fundamental right to liberty and freedom of association be balanced against their innocent spouse’s right toprotection of property, to defend against a civil accusation (as “irreconcilable differences” most surely is) that would strip theirfreedom of association (with children) or strip their property (such as their retirement funds while the other spouse has committed financial abuse in pursuing an affair)?

Many states do not allow marital fault to be considered in either dividing property or determining child custody.   What is the state’scompelling reason for this, given that a dozen or so states do take marital fault into consideration for these purposes, and given that not doing so sets an offending spouse up to actually profit from their own destructive acts against the marriage?   In fact there may be some legitimate state reasons for this,  but this surely does not offset anon-offending spouse’s fundamental right to due process over their property and parental rights!   In practice, some states may only allow the defrauded spouse to prove any financial abuse in court if they agree with the state and their petitioning spouse that a marriage is “irreconcilable”,  which may conflict with their biblical convictions, and conflict with any right a few states still give to bring evidence that irreconcilable differences do not actually exist (as in the case of an emotionally ill spouse who in reality needs treatment more than they truthfully need a divorce).   What about a discarded spouse’s right of conscience, guaranteed by the 1st Amendment and by most state constitutions, to act according to their biblical conviction if they believe and obey the truly startling and radical words of Jesus (Luke 16:18):

 “Anyone who divorces his wife and marries another woman commits adultery, and the man who marries a divorced woman commits adultery.”    

The state may have a legitimate reason for seeking to provide a low-cost exit from a marriage, but since all 50 states’ current no-fault laws infringe on the fundamental constitutional rights to stay married, and to family privacy and self-governance for both spouses and any children, what’s the compelling state reason for not having minimum requirements and evidence of professional counseling before accepting only one spouse’s opinion concluding that “all efforts to reconcile have failed”, or that “future efforts to reconcile would not be in the best interests of the family”?   What’s the compelling state interest in not considering other impacted family members’ views on their best interests?   What’s the compelling state interest in facilitating and sanctioning adultery in preference to the existing low-conflict marriage, or in shielding the offending party from incurring meaningful natural financial consequences of divorcing for selfish reasons?    Given the vast amount of damning evidence on the cost of unilateral divorce to state and local governments (hence, taxpayers) over the past 45 years, isn’t the compelling state interest actually in the opposite direction?

It’s also instructive to look at what marriage has become under the no-fault regime.   Unilateral divorce was supposed to “reduce acrimony” (although stripping all of the fundamental rights of one spouse to give blatant legal preference to the other makes it seem like the framers were smoking something),  it was supposed to “protect the children from harm in watching their parents deal with conflict” (never mind the tenfold physical and emotional abuse that is typically in store for the kids at the hands of the live-in boyfriend or girlfriend that has replaced the legitimate mother or father).    When individual sexual autonomy started to trump the compelling interests of society and the extended family as a whole, the meaning of government’s role in protecting marriage profoundly shifted.   Another recent ruling on a gay marriage case stated this point brilliantly, in SIFC’s estimation:

“One starts from the premise that governments got into the business of defining marriage, not to regulate love but to regulate sex…..one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.   One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.     People may not need the government’s encouragement to have sex.   And they may not need the government’s encouragement to propagate the species.  But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.”

- DeBoer v Snyder,   November 6, 2014

Judge Jeffrey Sutton,  U.S. 6th Circuit Court of Appeals

Unilateral divorce laws intrude into the integrity of the family in a tyrannical attempt to regulate mere affection.   Or, as Texas attorney Ed Truncellito describes our post-1970′s stripped-down version of matrimony in  his blog  “Why No One Is Married“:

“In truth, our no-fault laws, as implemented, abolished true marriage…….Although cohabitation is handicapped in many ways, it unfortunately has one important advantage: ordinary cohabitation keeps government out of the home.    In contrast, the registered cohabitation that we still call “marriage” invokes the jurisdiction of government officers. They receive authority to manage the lives of both spouses and their children with legal force. ”  

So given all this, what would a constitutional no-fault law look like?

(1) Irreconcilable differences as a non evidence-based ground for divorce would be available only by mutual or cross petition – with fully agreed child and property terms, otherwise it would revert to fault-based procedure to protect the due process rights of the non-offending spouse who for moral or religious reasons does not want to end the marriage.

(What we currently have, while deceitfully called “no-fault”,  is actually forced, unilateral, guaranteed divorce that excuses and often rewards destructive behavior toward the marriage).

(2) Proof and balanced consideration of marital fault would be restored in all contested cases where property and child custody matters could not be agreed between the spouses, and would be done without intrusive and non evidence-based court assessments of when the marriage allegedly broke down.   Proof of dissipation and marital fault would be merged and would simply follow the full proven time frame(s) of the offense(s).

(3) Contested, non-mutual out-of-state and offshore divorce decrees where the grounds and agreed settlement terms do not conform with (1) above will not be honored against assets and child arrangements domiciled in the state, and in-state marital fault proceedings will be required to effect those divisions.

(4) Equal evidence parameters and time frames to bring proof of fault would be restored to both spouses by abolishing court rules and operating procedures which are currently designed to suppress evidence of fault in order to give preference to the Petitioner over the Respondent.

Will these reforms force people to stay married against their wills?   That’s an interesting question since studies show that 80% of spouses in this country are divorced against their will.    It’s also an interesting question because additional studies show a high rate of remarriage to the same first spouse after civil divorce  and even after subsequent remarriage(s).   Other studies show a 60-70% divorce rate for second and subsequent remarriages, and a 97% failure rate for any relationship begun in adultery (this may include cohabitation and marriage combined).     In practice, these reforms will more likely just even out the power balance between spouses in resolving their differences, possibly increasing the percentage of mutual petitions if honest reconciliation efforts fail.   It will certainly make non-mutual divorces more expensive in some cases.    In a rare few cases, people unhappily married to a non-offending religious objector to divorce may not be able to obtain an in-state divorce because they can’t prove serious fault where none exists.   Under the Fourteenth Amendment, that’s as it should be.

Parting wisdom from Jesus:   “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning……”

The disciples said to him, “If this is the situation between a husband and wife, it is better not to marry.”    – Matthew 19:10

Indeed.   One may freely choose their behavior,  but they should not get to also choose the consequences.

Reference Used and Cited: 

http://www.standerinfamilycourt.com/?p=972

7 Times Around the Jericho Wall  |  Let’s Repeal No-Fault Divorce!

This post goes out to Barney, who raised a very valid question last weekend on our companion facebook page:  https://www.facebook.com/nofaultequalsnoaccountability/posts/1527839317455483

Revive Our Hearts

Revive Our Hearts 

Day 1 – Lord, I pray that my husband will grow spiritually and consider his accountability before You. I pray that he will guard his heart by developing spiritual disciplines – Bible reading and study, prayer, meditation, scripture memorization, etc. (2 Peter 3:18; Prov. 4:23)

Day 2 – Lord, I pray that my husband’s relationship with You and Your Word will bear fruit in his life. I pray that he will be a man of wisdom and understanding, fearing the Lord. (Prov. 3:7, 9:10; Ps. 112:1)

Day 3 – I pray that my husband will be humble and quick to agree with You about his sin. I pray that his heart will be tender toward Your voice, oh Lord. (Ps. 51:2-4; Micah 6:8)

Day 4 – Dear Lord, I pray that my husband will grow in leadership skills in our relationship – protecting and providing for us. I pray that he will lead us wisely and love us sacrificially, so that God will be glorified in our marriage. (Eph. 5:25-29; Col. 3:19)

Day 5 – Lord, I pray that my husband will be faithful to his wedding vows. I pray that he will have a desire to cultivate a stronger relationship with me as a sign of his loyalty and commitment, and as a picture of Christ’s love for the Church. (Prov. 20:6; Gen. 2:24)

Day 6 – Heavenly Father, I pray that my husband will love righteousness and hate wickedness, especially the evils of the culture. I pray that he will recognize and avoid wickedness in his own life, and if necessary, take a clear, strong stand against evil. (Prov. 27:12; John 17:15, 1 Cor. 10:12-13)

Day 7 – I pray that my husband will safeguard his heart against inappropriate relationships with the opposite sex. Lord, let his heart be pure and undivided in his commitment to me. (Prov. 6:23-24, 26; Rom 13:14)

Day 8 – Lord, I pray that my husband will work hard to provide for our family, to the best of his ability. I pray that the character qualities necessary for a successful career and ministry will be a growing part of his character – persistence, decisiveness, strength, an analytical mind, organizational skills, positive relationships with people, determination, etc. (Rom. 12:11; 1 Cor. 15:58

Day 9 – Lord, I pray that my husband will handle finances wisely, will have discernment concerning budgeting and investments, and will be a good steward of his money in regard to giving to the Lord’s work. I pray that money will not become a source of discord in our family. (Prov. 23:4-5; Rom 12:13; Heb. 13:5)

Day 10 – Lord, I pray my husband will cultivate strong integrity, and not compromise his convictions. I pray that his testimony will be genuine, that he will be honest in his business dealings, and will never do anything that he needs to hide from others. (Prov. 20:7; 1 Tim.1:5,3:7; Eph.6:10-12)

Day 11 – Lord, I pray that my husband will have a humble, teachable spirit and a servant’s heart before the Lord. I pray that he will listen to You and desire to do Your will. (Prov. 15:33; Eph19 430

Day 12 – Lord, I pray that my husband will yield his sexual drive to the Lord and practice self-control. I pray that our sexual intimacy together will be fresh, positive, and a reflection of selfless love. (Prov. 5:15,18; 1 Cor. 7:3, Song of Solomon 7:10)

Day 13 – I pray that my husband will use practical skills to build our family and make wise decisions for our welfare. I pray that he will serve unselfishly. (Gal. 5:13; Phil. 2:3-4

Day 14 – Lord, I pray that my husband will speak words that build up our family and reflect a heart of love. I pray that he will not use filthy language. (Prov. 18:21; Eph. 4:29)

Day 15 – I pray that my husband will choose his friends wisely. Lord, I pray that You will bring him men who will encourage his accountability before God, and will not lead him into sin. (Prov. 13:20; Prov. 27:17)

Day 16 – I pray that my husband will choose healthy, God-honoring activities. Lord, I pray that he will not give in to any questionable habits or hobbies, but that he will experience freedom in holiness as he yields to the Spirit’s control. (1 Cor. 6:12, 10:31; 2 Tim. 2:4)

Day 17 – Lord, I pray that my husband will enjoy his manliness as he patterns his life after You and strong men in the faith. I pray for his physical, emotional, mental, social and spiritual strength. (Eph. 3:16; 1 Peter 2:21; 1 Cor. 10:11)

Day 18 – Lord, I pray that my husband will have an eternal perspective – living in light of eternity. I pray, Father, that he will reject materialism and temporal values and put God first in his life. (Matt. 6:33; Deut. 6:5; Eph. 5:16; Ps. 90:12)

Day 19 – Heavenly Father, I pray that my husband will be patient and a man of peace. I pray that he will not give in to anger, but will allow the Holy Spirit to control his responses. (Rom. 14:19; Ps. 34:14)

Day 20 – God, I pray that my husband will yield his mind and thoughts to the Lord. I pray that he will not entertain immoral or impure thoughts, and that he will resist the temptation to indulge in pornography.(Prov. 27:12; 2 Cor. 10:5)

Day 21 – Lord, I pray that my husband will learn how to relax in the Lord and, in his greatest times of stress, find joy and peace in his relationship with You. I pray that he will submit his schedule and finances to You! (Neh. 8:10; Prov. 17:22; Ps. 16:11)

Day 22 – Lord, I pray that my husband will practice forgiveness in our relationship and with others. I pray that he will recognize any roots of bitterness and yield any resentment and unforgiving attitudes to the Lord. (Eph. 4:32; Heb. 12:15)

Day 23 – I pray that my husband will be a good father – disciplining his children wisely and loving them unconditionally. (If he is not a father, pray this. . . that he will find a young man to mentor in the things of the You, Lord.) (Eph. 6:4; Col. 3:21; 2 Tim. 2:1-2)

Day 24 – I pray that my husband will have a balanced life – that he will balance work and play. I pray that he will fear God, but also gain favor with people he knows at work and church. (Luke 2:52; Prov. 13:15)

Day 25 – Lord, I pray that my husband will be courageous in his stand against evil and injustice and that he will stand for the truth. I pray that he will protect me and our family from Satan’s attacks. (Ps. 31:24; Eph. 6:13; Ps. 27:14)

Day 26 – Lord, I pray that my husband will discover and live his God-given purpose. I pray that he will offer all his dreams to You, and pursue only those goals that will bring You glory and count for eternity. (Jer. 29:11; 1 Cor. 10:31)

Day 27 – I pray that my husband will understand the importance of taking care of his body – the temple of the Holy Spirit – for the glory of God. I pray that he will practice self-control by making wise food choices and get sufficient exercise to stay healthy. (Rom. 12:1-2; 1 Cor. 6:19-20, 9:27)

Day 28 – I pray that my husband will be a man of prayer. Lord, I pray that he will seek and pursue You in purposeful quiet times. (1 Thes. 5:17; Luke 22:46; James 5:16)

Day 29 – Lord, I pray that my husband will surrender his time and talents to You. Dear Jesus, I pray that his spiritual gifts will be manifest in his career, at church, and in our home. (Eph. 5:15-16; 1 Cor. 12:4,7)

Day 30 – Lord, I pray that my husband will serve You and others with pure motives. I pray that he will obey You from his heart and glorify You in everything. (1 Cor. 10:13; John 7:17-18; Col. 3:23-24)

Day 31 – Lord, I pray that my husband will recognize the lies of the enemy in his life. I pray that his attitudes and actions will be guided by the truth as he brings his thoughts into captivity to the Word of God. (John 8:44; 2 Cor. 10:4-5)

Reference Used    Revive Our Hearts  / Nancy Leigh DeMoss  http://www.standerinfamilycourt.com/?p=1501

PRAYER

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A few GOOD BOOKS!!! The 2015 Suggestions are IN!

  Looking for some awesome books to Study about Marriage or Just to study yourself approved?
Here are MANY to choose from!! Our Suggestions for early Feb.  2015. Be sure to check out ALL of them. :)

Treat yourself for Valentines Week or Anytime!




Tools ESV Bibles

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MANY ON DIVORCE and RE-MARRIAGE  TRUTH MATTERS!!


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These are just a few of my favorite picks! More to COME!!
 Be Renewed and BE INSPIRED!!! Amen