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Why No One is Married: The Tragedy of No-Fault Divorce
e3mil.com ^ | 2/24/03 | Ed Truncellito, JD

Posted on 02/25/2003 4:01:47 PM PST by nickcarraway

Marriage today is no more than "registered cohabitation" because no-fault divorce was misinterpreted as "no cause & no proof" divorce. If you can divorce without true cause — then you were not truly married in the first place. You were merely cohabiting, as in ages past, regardless what name it's called.

You could always walk away from a disagreeable cohabitation, but marriage was defined in its protection by law. You couldn't get out of a marriage just because you wanted out. You had to have true cause: abuse, adultery, abandonment, or the like. And not only cause, but genuine proof of it.

When the well-meaning no-faulters tried to take adversarialism out of the divorce process, to make it friendly, it failed. The door swung wide open to "no cause & no proof" divorce. Meanwhile, adversarialism went right back into the property and custody battles.

The old "fault" laws needed overhaul to bring spousal equality, and to make the system friendlier, but no-fault's "no cause & no proof" divorce, administered by warring lawyers, was the wrong implementation. The law should have required that spouses be taught how, and helped, to settle differences as co-equals, to deliberate justly and fairly, with self-control, while honoring their partner and the vows they made for a permanent union.

Beforehand, almost any man could rule his wife and settle disputes by physical force. But spousal equality demands at least a little education, a working knowledge of civilized diplomacy and reasoned compromise — for both genders.

The no-fault laws did not train the partners to solve any problems. The laws simply — and grievously — empowered the courts to settle all their disputes for them, in one grand sweep, by divorce, no matter how whimsical or trivial the disagreement. No-fault did not elevate the status of wives as co-equal family managers. It lowered the status of both spouses, while it elevated the courts as the new, and not-so-charitable, family managers.

The no-fault divorce system, as implemented, funded divorce. It channeled money from troubled families to divorce lawyers, now at hourly rates in the three digits, in exchange for dividing children and property. The court's officers were hired and paid to terminate marriages, not to save them.

The no-fault legal system, as envisioned, was to be a family hospital, and to comfort the hurting spouses and bandage the wounded marriages. Instead, it became a family morgue. It promised to give relief from the former hostilities of the "fault" legal system, but it became more hostile than ever.

Reconciliation dollars, facilities, and assistance were promised, but they never materialized. A generation and a half later, we know that the experiment did not work as planned.

In truth, our no-fault laws, as implemented, abolished true marriage. After many years of no-fault, we no longer even respect the solemn covenants that partners make between themselves and God. Instead, we respect the solemn covenants that lawyers make between themselves and a judge.

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.

No wonder people cohabit. No wonder we have so many broken homes. Partners can walk away from the slightest inconvenience, at any time, with court assistance. They don't ever have to conciliate, or swallow their pride and say they are sorry, or try to please anyone but themselves.

When divorce was made into a guaranteed certainty, it became an easy way out of hard times. Partners knew they would no longer be pressed by embarrassing questions about covenants and faithfulness, as they moved on to their next cohabitation. Nor could they be stopped.

The fundamental attribute, the unique defining characteristic, the earmark, that always distinguished true marriage from cohabitation, is legal security — protection by law — protection by divorce law.

Today, that protection is gone. Genuine proof of true cause was always required for divorce, and anything else — but that — should have changed in an overhaul of divorce law.

It is one thing to let spouses decide, without intrusion, for their own private reasons, whether to live together, or to live apart indefinitely. But it is another thing altogether, for government not to question the cause, when government has already intervened, when government is asked to destroy a marriage, totally and permanently.

The legal security of true marriage cannot be a chain. But neither can it be a thread. It must be a sturdy fabric, a flexible but tough canvas, to weather the gales of life.

That's why true marriage is so secure and stable for mates. When spouses cannot easily shake off their yoke, they soften it by mutual accommodation. In other words: spouses don't stay together because they get along; they get along because they stay together.

And that's why true marriage is so secure and stable for children. True marriage is underwritten by law. Children can rest assured that no passing storm will carry either of their parents away. They know that the whole force of government stands as a benevolent guard to protect their homes and both of their providers.

We are not in the midst of a divorce crisis. It is a marriage crisis.

Ed Truncellito is an attorney and can be reached through the website www.no-one-is-married.com or by e-mail at pursuejustice@lycos.com.

(This article reprinted with permission of Defending Holy Matrimony. Defending Holy Matrimony is an informational website whose mission is to promote an awareness of how civil authority is destroying Christian marriage and family life. Their aim is to foster a pro-marriage movement similar to the pro-life movement.)


TOPICS: Activism/Chapters; Constitution/Conservatism; Culture/Society; Government
KEYWORDS: family; marriage

1 posted on 02/25/2003 4:01:47 PM PST by nickcarraway
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To: Desdemona; Canticle_of_Deborah; Salvation; NYer; Flying Circus
ping
2 posted on 02/25/2003 4:02:28 PM PST by nickcarraway
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To: nickcarraway
read later
3 posted on 02/25/2003 4:13:19 PM PST by LiteKeeper
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To: nickcarraway
That's all very good, but the fact is "no fault" divorce became popular when folks discovered that all the "reasons", aka, "the family's dirty linen", need not be published for public review.

"No fault" let's people "save face".

4 posted on 02/25/2003 4:21:48 PM PST by muawiyah
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To: nickcarraway
Beforehand, almost any man could rule his wife and settle disputes by physical force.

I can promise you that had my late father ever laid a hand on my 85 year old mother she would have killed him without a thought. There is a term for women who aren't willing to do that, "abused".

Most women of her generation and mine would no more accept being "coerced" than I would. If you are not ready to kill the person who tries to coerce you, you aren't human, just a future slave.

The simple fact that you brought this up as an example of the "good old days" though needing updating and "Spousal Equality" demonstrates that you have so little understanding of a real relationship that nothing you say is of value.

Lawyers made huge fees on divorces in the old days, now most divorces hardly pay enough to keep the lights on. I am sure you would just looooove to see at fault divorce return. You are just another cheap jack lawyer trolling for business.

So9

5 posted on 02/25/2003 4:24:05 PM PST by Servant of the Nine (Republicans for Sharpton)
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To: nickcarraway
Marriage never fails, people fail. Then the people in authority (family, friends, church & magistrate) also fail to enforce the law. Marriage is the prime victim of the gods of tolerance. Tolerance is the flaming jet fuel flowing through the girders of our culture.
6 posted on 02/25/2003 4:27:10 PM PST by Theophilus
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To: nickcarraway
The problem in our society is not divorce, but not enough people getting married. Not being married when pregnant, not respecting marriage in the first place, and the consequences to society of children without fathers in the home is the problem.

When people are in a marriage and want out, the consequences of staying can be more devestating on children, than if they separate.

In the last 50 years, we've had a cultural swing towards socialism in this society, where government and psychology have replaced religion in the lives of people. The lack of community bonding is one of the first steps in destroying a culture, and that is what has happened. In order to restore respect for marriage, a restoration of the benefits of religion is paramount in our society.



7 posted on 02/25/2003 4:27:48 PM PST by FirstTomato (If I think of a tagline, you all will be the first to know!)
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To: nickcarraway
So, what is the solution?

Can Christians make their own marriage agreements separate from the civil authorities?
8 posted on 02/25/2003 4:36:24 PM PST by TruthConquers
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To: Servant of the Nine
Lawyers made huge fees on divorces in the old days, now most divorces hardly pay enough to keep the lights on. I am sure you would just looooove to see at fault divorce return. You are just another cheap jack lawyer trolling for business.

Well, I'm not a lawyer, and I would love to see fault divorce return. Because no fault divorce has cost me over $20,000, jail time, and the opportunity to spend time with my five year old son. You see, adultery and kidnapping are winked at in no-fault divorce. You, sir/madam (I suspect the latter) are clueless.

9 posted on 02/25/2003 4:39:36 PM PST by buccaneer81 (Plus de fromage, s'il vous plait...)
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To: nickcarraway
"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."

Of course if you are a subversive socialist, wanting to bring our country down, you will applaud this with every fiber of your being.

10 posted on 02/25/2003 4:41:04 PM PST by nightdriver
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To: nickcarraway
Ridiculous. The #1 cause is the immoral practice of alimony.
11 posted on 02/25/2003 4:46:06 PM PST by DAnconia55
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To: buccaneer81
Well, I'm not a lawyer, and I would love to see fault divorce return. Because no fault divorce has cost me over $20,000, jail time, and the opportunity to spend time with my five year old son.

Since that is not the normal course of a no fault divorce, I would suggest you screwed up badly either in picking a wife or in divorcing her. Now you want everyone else to pay for your stupidity by making divorce more difficult.

So9

12 posted on 02/25/2003 4:47:41 PM PST by Servant of the Nine (Republicans for Sharpton)
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To: TruthConquers
Can Christians make their own marriage agreements separate from the civil authorities?

I don't know about you, but I am not married because of anything the civil authorities have done. I am married (26 years and counting) because I made a commitment to my wife and my God. I honor the state's right to make laws, but their laws have nothing whatsoever to do with whether I keep my commitment.

The problem here is that divorce laws (of whatever description) are like locks, they only work against those who don't need them. Anyone determined to evade either will generally succeed without too much trouble.

13 posted on 02/25/2003 4:52:09 PM PST by Restorer (TANSTAAFL)
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To: Servant of the Nine
Divorce should be next to imposible!

I've been married for 43 years so what do I know.
14 posted on 02/25/2003 4:58:22 PM PST by dalereed
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To: Restorer
My wife and I have discussed this very thing. What makes the marriage right before God? The state or commitment before God? Could he honor a marriage that did not have the state blessing? There was a time when the state did not make marriage its business, rather it was the responsiblity of the community to recognize marriages. I think it may be a matter of intent. I wholeheartedly reject the cohabitation thing to "see if we work." A legal marriage does make it more difficult to just walk away though.
15 posted on 02/25/2003 5:18:07 PM PST by bethelgrad (for God and country)
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To: Servant of the Nine
He may have screwed up but States vary widely in their treatment of the walking wallet. I was divorced in Mass and I contested for adultery, I made out out well, if you consider $250,000 worth of alimony until I retire well.

If I had contested in New Hampshire where Adultry is actionable in the courts I could have reclaimed my money. Regretfully I didn't live in NH at the time.

16 posted on 02/25/2003 5:38:45 PM PST by Little Bill (No Rats, A.N.S.W.E.R (WWP) is a commie front!!!!)
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To: nickcarraway
Although cohabitation is handicapped in many ways, it unfortunately has one important advantage: ordinary cohabitation keeps government out of the home.

The only thing wrong with the above sentence is the word "unfortunately". Cohabitation does keep government out of the home, and that's a huge advantage over government-regulated marriages. If you want to get married in a religious ceremony, go ahead and do it; just don't register it with the government. Instead, create a cohabitation contract to handle the civil issues (property ownership, monetary arrangements, etc.). That way you aren't forced to accept the one-size-fits-all government-defined civil marriage contract.

My POSSLQand I have lived together, utilizing a cohabitation contract, for over 25 years now. It has worked out just fine, and we've successfully avoided government interference in our relationship.

17 posted on 02/25/2003 6:12:01 PM PST by dpwiener
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To: Servant of the Nine
Your reply leads me to believe that you are a beneficiary of the divorce industry. I did nothing wrong, and like so many men lost everything. But I will never give up on my son.

You are a real piece of work. It must be nice to judge from upon high. If you were any more smug, your last name would be Clinton.

18 posted on 02/25/2003 6:20:39 PM PST by buccaneer81 (Plus de fromage, s'il vous plait...)
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To: All
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19 posted on 02/25/2003 6:20:54 PM PST by Bob J (Join the FR Network! Educate, Motivate, Activate!)
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To: buccaneer81
Your reply leads me to believe that you are a beneficiary of the divorce industry. I did nothing wrong, and like so many men lost everything. But I will never give up on my son.

Other than losing a house in a divorce, I have nothing to do with them.

I and hundreds of people I know have been diovorced with no more than a little financial hardship. Well worth it to be rid of the other person.

If what you say is true, then your case is extraordinary, a fraction of one percent. Why should we turn the law on it's head so that it makes 99+% unhapier in order to make you happy?

I would guess that you, and you alone chose the wrong woman. Why should the other 99+% of people who function best under the current system be punished for that?

So9

20 posted on 02/25/2003 6:27:46 PM PST by Servant of the Nine (Republicans for Sharpton)
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To: Little Bill
He may have screwed up but States vary widely in their treatment of the walking wallet. I was divorced in Mass and I contested for adultery, I made out out well, if you consider $250,000 worth of alimony until I retire well.

You chose your place of residence. I think mine cost me about that in community property and child support in Texas.

The problem is that we have chosen poorly, not that the law is bad.

So9

21 posted on 02/25/2003 6:37:05 PM PST by Servant of the Nine (Republicans for Sharpton)
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To: Servant of the Nine
Since that is not the normal course

What makes you think it is so far off the norm?

22 posted on 02/25/2003 6:45:58 PM PST by paul51
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To: Servant of the Nine
Do you have any kids, or were they just "collateral damage" in your zeal to be rid of your spouse?
23 posted on 02/25/2003 6:48:04 PM PST by buccaneer81 (Plus de fromage, s'il vous plait...)
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To: nickcarraway
The big question seems to be whether or not the marriage is a true one or people legally cohabitating.

Maybe that's what needs to be answered.
24 posted on 02/25/2003 7:53:00 PM PST by Desdemona
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To: buccaneer81
Well, I guess he left. Anyone who thinks the current system functions well or the law is OK is in severe denial or needs to do more research.
25 posted on 02/25/2003 9:48:51 PM PST by paul51
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