Legal System Myth #2

Abandoned partners are often heard to say, “I don’t believe in divorce.” This, of course, is merely the summation of a complex system of belief. Here is what they really mean to say:

My spouse may not intend to honor our vows, but I will. If this marriage ends in divorce, I will not be the guilty party. Furthermore, this dispute doesn’t belong in court; therefore, I will not enable my spouse’s sin by participating in legal action. Besides, I command the moral high ground in this situation, so I don’t have to worry about the outcome if this eventually lands in court. Any judge will see that the truth is on my side.

 Consequently, abandoned partners feel no need to contact an attorney or to respond to their mate’s legal action. Yet, eventually and without exception, they find themselves bewildered and victimized once the judge taps the gavel and signs the final decree. That’s because their entire rationale is founded upon a common myth.

Myth #2: Courts care about who is at fault in the breakup of a marriage and will favor the innocent party.

At one time, courts would only grant a divorce when one partner could prove the other to be at fault for the failure of the marriage. The grounds for divorce differed slightly in each state, but most recognized the obvious: infidelity, abandonment, abuse, or extreme neglect. Furthermore, the court would consider the severity of these grounds when awarding spousal support, child custody, and property to the innocent party. That’s because the courts considered marriage a covenant—a contract—between two people. In order to divorce, one partner had to show that the other was “in breach of contract” or “at fault” for breaking their agreement, the terms of which had been spoken before witnesses at their wedding ceremony.

Of course, the partners could mutually agree to dissolve their contract. However, unless both of them agreed to divorce, “fault” would have to be proven.

In 1970, the advent of the so-called “no-fault” divorce changed everything. As of 1985, nearly every state recognizes some form of “no-fault” divorce, which allows one party to divorce the other without having to prove “grounds.” In fact, one doesn’t even have to gain the consent of his or her spouse. The court merely declares the marriage dissolved because at least one partner claims the union is irretrievably broken and beyond hope of reconciliation.

Because neither partner is considered at fault for the failure of the marriage, neither can be punished when dividing property or deciding the fate of any children involved. All financial and practical matters of the divorce settlement depend on a number of other factors, such as how long the couple was married, the potential earning ability of each spouse, how much each partner contributed to the family’s financial status, and who provided primary care for the children. These “no-fault” statutes require the equitable distribution of all property; therefore, any settlement that divides property in such a way as to punish either spouse will not survive if challenged in court. Unfortunately, this means that someone can be guilty of infidelity, abuse, abandonment, or any number of marriage-killing behaviors, yet emerge from divorce court completely unscathed.

We can bemoan the unfairness of “no-fault” statutes—in fact, many have acknowledged that they have caused more harm than good—however, they are not likely to change soon. Therefore, we are better to deal with life as it is. At present, the courts depend upon both parties fully engaging in the process. The judge has no choice but to act on the information he or she has, so if only one partner presents his or her case, then the judge will use that that information as the basis for all decisions . . . even if that information is deceitful or incomplete. It is not uncommon for the morally guilty spouse to emerge from the courtroom with an unfair share of the family’s money, property, and even custody of the children, all because the victimized spouse failed to engage in the legal process.

It is a sad fact that we must accept as the better part of wisdom: the legal system doesn’t favor the person who is right; the legal system favors the person who is better prepared.

Look for Myths #3 and #4.

One thought on “Legal System Myth #2

  1. Well, for someone completely unfamiliar with divorce, this comes as quite a shock! I am reading these myths with great interest, hoping that what I learn will help others…

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