Friday, January 18, 2008

Earning the Right to Divorce

...or she does
I am not an attorney nor do I have in depth knowledge of the law, but after observing a few friends and family members going through divorce, the laws and rules of evidence and civil procedure regarding divorce confused me to say the least. After discussing this with many people, I discovered I was not the only one confused by "divorce court".

I believe my confusion stems from the establishment of no-fault grounds laws where neither party is considered at fault. I am not referring to childless couples, as I believe, in most instances; divorcing couples without children do not carry the same burden of responsibility as married couples with children. There are no innocent victims involved when a childless couple divorce.

This lack of a clearly defined "defendant" leads to what I would call a more casual atmosphere where the outcome of each case can partially result from the bond the attorneys have with the judges and/or the bond attorneys have with each other. More "off the record" discussions between attorneys and judges (I witnessed this first-hand) occur making impartiality practically impossible. In addition, the judge may be focused on adhering to the "no fault" aspect of the law, at the expense of true justice where the truly innocent (children) are protected. It's not the fault of the individual attorneys or judges, rather the "fault" of the "no fault" laws governing divorce that try so hard not to condemn either party that it overlooks the real victims, the children.

I understand the reason behind no fault divorce and agree that prior to the "divorce revolution" in the 1970s; divorce court did compromise the integrity of the American justice system by making perjury a likely occurrence. Anyone living in a marriage from hell will find a way to end their misery any way they can. The courts realized this and amended divorce legislation allowing spouses to initiate divorce proceedings without any proof of marital wrongdoing, therefore eliminating the need to fabricate situations to get out of one's commitment.

Yet, it seems this issue was solved at the peril of many other issues the most profound being the injustice to children. Children have financial and psychological advantages when both parents are married and fully supporting them. They lose these advantages when one or both parents decide to divorce because of the lack of adequate laws in place governing divorce. Therefore, unless the divorcing parents are diligent about putting the children first, the children become the victims through no fault of their own.

Non-adversarial divorce is not the problem in and of itself, rather there needs to be reform to the existing laws requiring both parents to be more responsible to their children. Currently, the children and/or the spouse without the career or the financial means usually suffer the most because "justice" is so expensive. If the parent retaining primary custody can afford to pay $300/hr to an attorney for countless hours, sometimes until that child is 18-years old, the child's rights will be protected. Most Americans do not have that kind of money, especially the parent normally left to care for the children. He or she, and the children are left at the mercy of the other spouse who makes the money and therefore wields the power.

Parents should be required to "earn" a divorce instead of having the divorce granted, just because one or both parents want it. An agreement in writing, providing specific details about how both parents intend to support their children in much the same way as when they were married, should be mandatory before the divorce decree is granted. In other words, the divorce decree comes after settlement takes place, not before, as it is now. Of course, this only applies if both spouses do not pose a danger to the children.

Marriage is a contract between two people and the government agreeing that each spouse is obliged to support the other and any offspring that should result of their marriage. The government, in return, will provide certain rights and protections -- over 1500 federal and approx. 500 state, depending on the state --to the married couple and their offspring. If the couple decides to end the contract, they should be obliged to support each other in the manner of which they grew accustomed when there are children involved, no matter what the socioeconomic status of the couple.

"We the People" end up paying for the "deadbeat dad" or mom who might make six-figures but just does not feel like living up to his or her responsibly any more. Currently, without the money and resources it's extremely difficult for the custodial parent to make the irresponsible parent face up to his or her responsibility, because the irresponsible parent has to turn into "Jack the Ripper" for the courts to aggressively pursue him or her and by the time the court finally does pin that parent down the child is usually married with kids of his or her own.

Instead of "No Fault" divorce, we should have "No Fault of the Children" divorce, putting the focus on children's rights first and taking the focus off making sure the ones truly at fault, the divorcing couple, remain faultless.

It seems another "divorce revolution" is needed to correct the injustices of the last one.

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