Legal Myths #3 and #4

Americans, by nature, resent governmental intrusion, especially when bureaucrats start meddling in personal relationships or religion. Because marriage involves both of these two sensitive matters, Christians especially resent the idea of a judge ruling over what they consider sacred and private. Therefore, believers feel betrayed when they discover their partner has invited government involvement in a relationship that has been sealed by God and should be governed by Him alone.

This perspective, while admirable on many levels, rests on two myths that frequently place the upright partner in danger, along with his or her children. (I invite you to reread Eva’s letter in the earlier post, “Five Court System Myths and the Truth about Justice.”)

Myth #3: Marriage is a sacred matter in which the government should not be involved.

I suspect most people would affirm this statement. It sounds reasonable, were it not for a particular misconception. The truth is, the state has no desire to involve itself in the details of anyone’s marriage, and will only become as involved in marriage as we allow.

A couple submits to a small amount of government involvement when they obtain a marriage license before the wedding ceremony. This formality does nothing more than satisfy the state’s need for documentation. Its purpose is to inform the government that two people are married and should be treated that way with respect to the law. For example, taxes are applied differently once two people merge their lives; two individuals have become one legal and financial entity in the eyes of the state.

Similarly, a parting couple must file for, and receive, a decree of divorce confirming that the state no longer recognizes them as married. All other matters concerning divorce or separation can be settled by mutual agreement, mediation, or some other means. The court has no other involvement unless the couple insists on fighting it out before a judge.

Many Christians avoid the courts altogether, fearing that in giving an inch, the government will take a mile. Moreover, they want to honor the apostle Paul’s exhortation to avoid taking disputes with fellow believers before the courts. (We will examine 1 Corinthians 6:1–8 in detail in another article). Decent, reasonable people always try to resolve conflict in person without dragging another before a judge. Therefore, even in extreme cases of abuse, infidelity, criminal behavior, and even abandonment, Christians steadfastly avoid any contact with the courts, leaving themselves legally vulnerable. That’s because they unconsciously believe myth #4.

Myth #4: Filing a petition for divorce is an unnecessary and cruel formality.

In an ideal world, everyone would be reasonable and we could settle our disputes honorably. Unfortunately, it is impossible to reason with unreasonable people. Furthermore, Christians frequently underestimate the lengths to which a wayward spouse will go to defend his or her sinful choices and are frequently surprised to find themselves on the defendant’s side of the courtroom. Because the legal system can become a dangerous weapon in the wrong hands (as Eva disovered), the upright partner must secure it and then place it out of reach so the wayward partner has less opportunity to hurt someone.

Filing a petition or complaint for divorce with the court protects the upright spouse in several important ways. (Keep in mind that the petition can be rescinded at any time.)

Legal Protection. Simply packing up and leaving could constitute abandonment unless the upright spouse had to move out to preserve his or her own safety or the safety of the children. Even then, credible proof may be required later. In many states, the sinning spouse would have a strong case for a “fault” divorce. Furthermore, in some states, the person initiating the complaint enjoys greater control over the agenda, timing, and tone of the entire divorce process. If the upright spouse does not use the legal system with wisdom, he or she could forfeit significant legal power or even become legally powerless despite how “right” he or she may be.

Financial Protection. Whatever physical and financial situation exists during separation commonly becomes the basis for the terms of the divorce. For instance, if the upright spouse vacates the home and, out of good conscience, provides one thousand dollars each month to cover bills, it will be almost impossible to convince the court that the living and financial arrangements should change after the divorce is final, especially if changing the existing arrangement affects the children in any way.

Filing a petition and using the courts will provide structure for the financial arrangement from the very beginning.

Physical Protection. Temporary restraining orders are more easily obtained when they ask for reasonable protections in connection with a petition for divorce (the first official step in any divorce case). For instance, if the upright spouse is worried that his or her partner might become violent, disappear with the children, or deny access to bank funds or the family car, a temporary order can provide stability until the circumstances become less volatile.

Ironically, when a marriage experiences such crisis that separation is imminent or becomes necessary, filing a petition for divorce is the best way to minimize government involvement . . . but only when the upright partner does the filing. Who better to be in control of the legal process than the partner who wants the marriage to continue?

Have you or someone you know been victimized by malicious use of the legal system? How were you or this person affected?

Next, discover how Myth #5 hides the real cause of divorce.

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.

Five Court System Myths and the Truth about Justice

InjusticeEva’s letter broke my heart. Unfortunately, her tragedy is not uncommon among Christians. I have altered her letter to protect her identity; however, her story could be one of many others who have written to us after reading Redemptive Divorce.

I am writing to you because my family and I need prayer. About four weeks ago, my husband assaulted me in front of our three children, after which I filed charges for domestic violence. The trial is still four months away and, until recently, I felt sure he would be convicted. However, he has filed a countersuit accusing me of abusing alcohol, alleging that I am mentally and emotionally unstable, and wanted the court to declare me unfit to care for our children. While none of this is true, he was able to convince the judge, who has a reputation for siding with husbands, and now he has been awarded custody of our children. The judge also declared that he can live at home, while I find somewhere else to live. And, I have to pay child support, despite the fact he makes a six-figure income and I will be lucky to make minimum wage. I was a stay-at-home mom for our entire marriage.

Our youngest son has been diagnosed with hypoglycemia, which requires careful management of his diet as well as medication to help him fight his ear infections. But my husband isn’t consistent and our son is growing weaker and sicker as time goes by. Now our other two boys are beginning to suffer severe anxiety.

My only hope is to convince another judge to reverse this decision and gain custody of our sons, perhaps based on neglect. But my husband has changed all our bank accounts and cancelled our credit cards, so that I can’t even afford a place to live, much less the cost of an attorney. I don’t even have enough to pay the child support I owe by the end of the month. How could this happen? I’m not the one who beat and choked my partner. I’m not the one who’s neglecting our children. He should be living on the street, yet I can’t go into my own home without permission.

I have never felt so alone. I have never faced such injustice. I don’t know what I’m going to do.

Eva

Earnest Christians desperately trying to resolve impossible situations frequently do everything possible to avoid the legal system, usually because they believe that seeking an attorney’s help is somehow wrong. Unfortunately, the sinning spouse is all too willing to use any means necessary to retain control and to preserve his or her pattern of sin. Sooner or later, though, the matter nearly always lands before a judge, who typically hands the short end of justice to the least prepared spouse. And no one suffers more than the children.

This sadly common scenario can be avoided, but only if we dispel some common moral and legal myths surrounding divorce and the court system. Jesus commanded us to be “shrewd as serpents and innocent as doves” (Matt. 10:16). Therefore, we must study the divorce process from a legal standpoint and then prepare to stand strong for what is right as we submit to the authority of Scripture.

In this article, we will examine the first of five legal system myths.

Myth #1: You don’t need to involve the courts if you just do what is right.

Eva thought if she simply did what was right, the courts would behave like a watchful parent and move to protect and support her. It’s a common misconception. Those of us who do not have regular interaction with the judicial branch of our government tend to think of the court system as an entity—that is, a mission-focused agency of the government whose sole purpose is to fairly and impartially safeguard the rights of people, particularly the downtrodden and defenseless. While the American judicial system is perhaps the finest in the world, it is not an organization in this sense. It is, instead, a meeting ground, governed by rules, where people who disagree on the definition of right and wrong try to convince the government to take their side in a dispute. Therefore, the judicial system can be capable of accomplishing great good or perpetrating astounding evil, depending upon who’s involved in a particular case.

Our system of laws and courts is neither good nor evil. We are much better to think of the judicial system as a powerful tool that can be utilized for either good or evil, depending upon who wields it. And in the hands of Eva’s abusive husband, it became a weapon.

Next, Myth #2: The courts care about how is at fault in the breakup of a marriage and will favor the innocent party.