I was sent this be a friend this AM, about the push to legalize no fault (forced, unilateral) divorce in New York. This man speaks Truth. Some have even held that this form of divorce is unconstitutional because it does not allow any defense by the Respondent, thus denying the Respondent due process. I am in agreement with this view. God bless!
No-fault divorce shakes the foundations of all marriages
April 12, 2007
Imagine yourself as a defendant in a lawsuit. In court, the judge carefully considers statements made by the plaintiff, but disregards even your most passionate defense. You are presumed guilty. Is this a court found in some foreign country? No. This is how no-fault divorce courts operate in 49 American states, and I'm writing to oppose Judge Judith Kaye's recent support for bringing this travesty of justice to New York.
New York is the only state in America without no-fault divorce. Critical legal protections safeguarding marriage contracts remain in place in the Empire State, while divorce courts in all other states operate in a profoundly unjust and unconstitutional manner. A New Yorker can still oppose a divorce, ask that the charges be proven and take the case to a trial before a jury. If Judge Kaye's recommendation becomes New York law, defendants in no-fault divorce cases won't be able to compel plaintiffs to prove what they've claimed, and defendants will lose their constitutional right to a jury trial.
In no-fault divorce the plaintiff prevails almost without exception. A defendant can't raise a legally recognized defense during the proceedings. Even an accused child molester is afforded that legal protection. Under no-fault divorce laws, a defendant is effectively denied that right. If one spouse wants a divorce for any reason, the state dissolves the marriage contract, regardless of the other spouse's wishes. The plaintiff/spouse wanting the divorce needs only say in court: "Your Honor, the marriage is irretrievably broken."
And what does irretrievably broken mean? Since these words have been used to dismantle millions of American families in no-fault divorce pleadings over the past 35 years, you might be shocked to learn that the legal profession doesn't have a consensus definition of the term "irretrievably broken" that is objective and measurable. Is it not, therefore, judicially unconscionable for judges in no-fault divorce cases to make subjective judgments invalidating marriage contracts based upon the claim of only one spouse?
"But what about wedding vows?" you might ask. What about them? In no-fault divorce, vows don't matter. "But it was a religious ceremony!" That doesn't matter, either. In no-fault divorce, if one spouse wants out of the marriage, the judge grants it.
Judge Kaye's support for no-fault divorce should be judicially examined through the critical lens of the U.S. Constitution. Article I, Section 10 prohibits states from passing laws "impairing the obligations of contracts," and marriages are legal contracts. No-fault divorce laws impair the obligations of marriage contracts and give judicial privileges to the spouse asking the state to nullify the contractual obligations, while denying the defendant equivalent privileges. In essence, no-fault divorce courts treat marriage contracts as not legally binding.
Might New York legislators, perhaps mindful of the U.S. Constitution, have reasoned that marriage contracts must be afforded their constitutional protection? Judicially protecting the marriage contract is one sound reason to oppose Judge Kaye's recommendation and avoid joining other states that have disregarded this section of the U.S. Constitution.
If Judge Kaye's plan becomes law in New York, the legal contracts couples enter into upon marriage won't be worth the paper on which they are written. Wedding ceremony phrases such as "as long as we both shall live," and "I solemnly swear" will be rendered judicially meaningless. If no-fault divorce becomes New York law, the legal safeguard for marriage will be as protective as a screen door in a hurricane.
Keep no-fault divorce out of New York!
Gary Ciesla lives in Highland Falls.
Opinion - No-fault divorce shakes the foundations of all marriages
Labels: Defense of Marriage, Divorce, Family, Forced divorce, No fault Divorce, Vows