Nobody Wins When The Family Feuds: What the Survey Says About The Gravity of No Fault Divorce

By: E.A. Putman

Beyoncé’s cathartic Lemonade album followed by her husband Jay-Z’s remorseful 4:44 album should be a lesson on why Texas should maintain the no-fault divorce action. This past weekend, Houston welcomed home Beyoncé as one half of the Carter duo performing their sold out On The Run II Tour. The superstar couple powered through 

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Sunday, September 16, 2018 On The Run Tour II NRG Stadium Houston, Texas

an almost three hour set that showcased to everyone that in spite of marital strife, Everything is Love.  That’s Bey and Jay. And so many others who decide to not end their marriage.  But for 10.8% of the Texas population, the union was dissolved on at least one of several grounds for divorce–one which may be on the verge of extinction. 

 

In Texas, a spouse may file for divorce based on the following:

  • Insupportability/ Irreconcilable Differences (No Fault)
  • Abandonment for a year without intent to return (Fault)
  • Adultery (Fault)
  • Confinement in a mental hospital (Fault)
  • Cruelty (Fault)
  • Convicted of a felony and sentenced to prison (Fault)
  • Living apart for more than three years (Fault)

Prior to 1970,  no-fault divorce did not exist. Texas law required one of the spouses to declare a reason for filing for divorce.  With the introduction of no-fault divorce, couples were allowed to dissolve their union without proving that one of the spouses did anything wrong to break up the marriage. The reason became it’s just not working. The most recent legislative sessions introduced failed attempts to revert Texas back to a state where fault would have to be alleged (and proven) to finalize a divorce. 

It is undeniable that family law can bring out the worst in people and when there are feelings of remorse, revenge and rejection, the legal process shares the spotlight and sometimes even takes a backseat to a client’s emotional and mental package. Thus, if Texas becomes a state where a spouse must prove fault, the potential for an amicable proceeding and subsequent relationship (if children are involved) is severely diminished. Nobody wins when the family feuds.

If Beyoncé and Jay-Z were not….Beyoncé and Jay-Z…and their respective albums were divorce pleadings rather than a multi-million dollar churning catharsis, it would be the embodiment of the harsh framework of a fault-based divorce system: deceit, infidelity and blame rolled up in one tube.

On 2016’s Lemonade, Beyoncé laments “today I regret the night I put that ring on.” She ponders “something don’t feel right because it ain’t right.” And readily admits, she “found the truth beneath [] lies.” These lyrics, which allude to adultery, are what we will see and hear daily at 8:00 AM prove up dockets for an at-fault divorce. During promo for 4:44, Jay-Z admitted that both his and his wife albums were akin to “using [] art almost like a therapy session”. While these albums, which acknowledged their marital woes, subsequently helped repair their union, airing the nitty gritty details of the marital breakdown may not bode so well for regular people seeking a divorce. 

A system where fault-based divorce is the only option will be an open forum for the court to accept evidence relating to adultery, cruelty, felony conviction and abandonment which will include oral testimony, photographs, documents, screenshots, and in this age, social media. It will be Judge Lynn Toler’s Divorce Court replete with the dramatics.

Maintaining a no-fault based divorce system does not eliminate the need for fault based divorce. There are instances were an at-fault divorce is justified and should be alleged such as an equitable division of  high dollar value marital estate for an innocent spouse or an at-fault  spouse who exhibits violence and could be harmful to children. Additionally, some no-fault divorces may be rooted in fault, but spouses elect to plead insupportability to expedite the divorce process, save themselves or their spouse from scrutiny or because they have already worked out an equitable arrangement. If people who are able to allege and prove fault are agreeable to dissolution based on no-fault, then it is unnecessary to remove the ability for amicability. 

Eliminating no-fault divorce will not be a means to repair a marriage. When one or both spouses decide that the marriage has come to an end, it is best to proceed in the most peaceful way possible and many times that is to admit that a “marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” While the exposé albums of Mr. and Mrs. Carter worked to heal their union, if no-fault divorce is eliminated, the collectively 25 track sequence will become the transcripts of “simple” proceedings. And nobody will win when it is required that the family feud.

6 Replies to “Nobody Wins When The Family Feuds: What the Survey Says About The Gravity of No Fault Divorce”

  1. There are no good reasons for no-fault divorce as it is found in sec. 6.001. There are many laudable sentiments for keeping it around but none that can overcome the harm that it has done or the unconstitutionality that plagues it. The harm to children has been spoken of over and over again in social media as well as before the Juvenile Justice and Family Issues committee. Please notice the text of the statute itself as well as H.B. 3188, Matthew Krause’s compromise bill that does nothing to repeal no-fault.

    Insupportability has 3 separate elements to it. Each element raises 3 fact questions of law. The respondent makes the claim so that is who the burden of proof is on. The plaintiff (claimant) makes the claim that #1the legitimate ends of the marriage relationship have been destroyed, #2 that it was discord or conflict of personalities that destroyed those legitimate ends, and #3 there is no reasonable expectation of reconciliation. It is for the plaintiff to give evidence and testimony that gives proof to each of these claims.

    Please read 6.001 line for line. There is absolutely no definition given to this statute which is quite apparent. This becomes a fatal flaw of Insupportabilty recognizing it’s utter vagueness. That is what is known as a Due Process of Law violation of the 14th Amend. The Fair Notice in Statute requirement found in the Vagueness Doctrine. So what are the implications of this?

    The courts have no understanding of this statute’s legislative intent. The appellate courts have never contemplated the issue and therefore there is no saving construction given. It remains vague and meaningless. Moving forward, we recognize that the trial court determines questions of fact only and cannot supply their own meanings to this no-fault ground. It’s left to the appellate court to determine questions of law. What the meaning of Insupportability is would be a question of law, not a question of fact. See where the problem is? This becomes an unsettled question of law that has gone for 50 years without the appellate court’s consideration. What does all that mean?

    What it means is that the trial court doesn’t understand what the legitimate ends to the marriage relationship are. Opposing counsel does not know that these legitimate ends of the marriage relationship are either. Who is to inform the plaintiff? The plaintiff petitions the court with a claim alleging something that he/she has no understanding of and cannot honestly assert as true. In other words, the plaintiff is telling a lie, making a false statement, committing perjury, perpetrating a fraud, etc… This is where everything unravels and starts shooting off in several different directions.

    1. The trial judge is the evidentiary gatekeeper. The person who is suppose to be on the lookout and guard against perjured testimony. The trial judge is a licensed family law attorney at bar and has experience enough. Even if it was that judge’s 1st day as a lawyer, that judge would know that he/she didn’t know what the legitimate ends of the marriage relationship are. This means that the judge knows that the plaintiff can give no testimony to establish the proof necessary to the correct evidentiary standard that the legitimate ends have been destroyed. In other words, the perjury and fraud on the court are obvious.

    2. Retained counsel for the plaintiff is a juris doctor. Competent to represent clients at trial, every attorney must be held to understand the Disciplinary Rules of Professional Conduct. It’s counsel’s fiduciary to the client to give diligent and effective representation. It is the counsel’s fiduciary duty to inform his/her client as to the meaning of the claim being submitted to the court (or the absence of meaning as it applies here) and cautioning against giving false testimony.

    3. The plaintiff has several issues by claiming Insupportability without knowing what the legitimate ends of the marriage relationship are. Testifying to something that a person has no knowledge of is (a) lying. It’s committing perjury, a fraud upon the court, (b) submitting a frivolous claim. Not knowing what the legitimate ends are, the plaintiff cannot have any understanding of having the necessary evidence or testimony to support the elements of the statute and therefore no evidence to support the claim being made, (c) fair notice in pleadings is not found as required in the Texas Rules of Civil Procedure, (d) does not give the respondent spouse fair notice ie Fair Notice In Statute which is a 14 Amend. Due Process violation found in the Vagueness Doctrine.

    4. Retained counsel for the respondent has a fiduciary duty towards his/her client in giving effective representation which does not happen unless he/she accurately informs his/her client as to what the meaning of sec. 6.001 is or informs the client of the statute’s constitutional vagueness. This also shoots off into different directions: (a) counsel insufficiently informs the client which deprives the respondent of information to make an informed decision on the course of representation at trial (b) prevents the client from presenting any meritorious defense against the plaintiff’s claim (c) by the fact that opposing counsels both recognize the statutory vagueness and it’s implications, both attorneys are implicated in collusion in a fraud against the court, (d) this is clearly a breach of retained counsel’s fiduciary duties owed to his/her client and an attorney’s betrayal.

    5. Respondent is left uninformed and in trusting counsel’s representation, is left with no index of suspicion. If told that there is no defense against a suit for dissolution on the no-fault ground of insupportability, the client is misinformed and is left with no knowledge of how to contest the claim and vindicate his rights or the rights of his children. Just to note: There are no affirmative defenses against the Insupportability claim. An affirmative defense is a subcategory of defenses and it cannot be construed as to mean that there is no defense to this claim at all.

    Meritorious defenses against sec. 6.001:
    1. Challenging the constitutionality of this statute, both as applied and on it’s face.
    2. Challenging it’s validity as opposed to public policy.
    3. Challenging this claim as frivolous.
    4. Challenging the sufficiency of the evidence to support any of the 3 elements of the statute.

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  2. Not too sure how this works. Do I wait until my previous comment is approved and posted or can I submit another while waiting. I have a really good feeling that you are the one attorney who can explain Insupportability . I have read the Scorecard article regarding the Lecouna appeal heading to the Texas Supreme Court. You tweeted this article but it didn’t mention what the State’s interest in the legitimate ends of the marriage relationship were or what Shawn Lecouna may have stated her’s were. Just so very, very interesting. Did the trial court file a findings of fact and conclusions of law or did either party even request it? I don’t know if a jury trial had been requested or if that is even a thing any more. If they did have a jury trial, any chance of taking a look at the jury charge? I’ve always been curious as to what a jury charge in an no-fault suit would look like. My guess is that it would be very revealing. I have all the faith and confidence in your abilities to get down to the nitty gritty of this matter. Any attorney with 8 years or more as an attorney has my respect.

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  3. Please let me know if I’m correct about this. The State and the courts recognize the best interests of the child as being in the traditional 2 parent, intact family. Is this related to or because of the legal presumption that a fit parent acts in the child’s best interests? As this is, the parent who wishes to contest the dissolution of the marriage contract does so for the continuation of the marriage as it stands to benefit that child’s interests. Now if you are to suggest that a child suffers in a high conflict marriage, I might agree but that would necessitate a finding of such based on evidence at trial which would never be heard in a no-fault trial.

    As the no-fault statutory scheme was crafted to reduce the adversarial nature of divorce, that impedes the respondent from arguing towards what he/she may believe to be in the child’s best interests. And it would seem rather fundamental that pleading no-fault would be to remove the child from that traditional 2 parent, intact family without identifying any concrete injury or expectation of harm in the continuation of the marriage. This leads to what is rather obvious in that the plaintiff is actually acting in opposition to those interests of the child and subsequently is found rebutting his/her own parental presumption of being a fit parent acting in the child’s best interests.

    Please take notice that it is the plaintiff who has petitioned the court and therefore invited the court to act. The respondent did nothing to request the court’s interference in his/her rights to privacy, parenting, etc… The plaintiff -effectively waives his/her rights while the respondent does not.

    So with the knowledge that the plaintiff has waived his/her rights to the court so that the court may act and the plaintiff’s claim effectively rebutts the plaintiff’s parental presumption of being a fit parent acting in the child’s best interestes, the respondent does nothing to either forfeit or waive his/her rights in the care and custody of his child or any other rights that are implicated by the no-fault suit for dissolution.

    Please explain what justification the trial court could possibly have for ruling favorably for the respondent’s claim?

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  4. I know you must be busy with all the work an attorney must do so I’ll wait patiently for your response to what I am posting. While waiting, I’ll submit those questions that come to me after reading your article.

    You speak of the scenario in which the spouses may be amicable to the dissolution. Not really understanding how this can be successful. This would result in an agreed decree in which no trial takes place, correct? In an agreed decree or consent decree as it may be called, all that would be required is prove up testimony and both parties waive their rights to allow the court to determine the issues. The problem that exists is that without knowledge of what those legitimate ends of the marriage are, neither spouse would be able to give testimony stating that those legitimate ends of the marriage relationship have been destroyed. As I am sure that you have much experience and are well versed in family law and sec. 6.001, please help me understand what testimony is being given and how the trial judge is able to permit a consent decree to happen? Does the trial judge use his/her own personal understanding of what those legitimate ends are or do the parties to the suit testify as to what they believe their legitimate ends of the marriage relationship are?

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  5. Please tell me if you agree. To determine what Due Process is required the rights affected by the proceedings must first be recognized. Understanding that the dispositional phase of the trial deals with the granting of the divorce it’s self but also the division of community property, conservatorship determinations, child support and the granting of those exclusive rights of parenting to one parent or the other, is it readily understood that marriage, parenting, religion, property, and privacy are all fundamental rights that are implicated by the suit for dissolution? Whether based on a particular fault ground or the no-fault ground of Insupportability, the respondent’s rights and those rights held by the child it’s self are at risk.

    With regard to Due Process, these fundamental rights being implicated require the application of heightened scrutiny for review on appeal. Since it is the trial court that determines the level of scrutiny to be applied in pretrial, heightened scrutiny also raises the evidentiary standard, doesn’t it? Beyond a preponderance of the evidence is recognizably being unconstitutionally low.

    As it is widely held, the testimony of the marriage having become insupportable by the plaintiff and merely repeating the elements of the statute as true during trial is all that is found as necessary for the trial judge to grant the divorce. I don’t understand. The plaintiff’s testimony by itself is merely conclusory and is held as incompetent testimony at trial and therefore objectionable for preservation of error on review. Furthermore, conclusory testimony need not be objected to for preservation of error and the appellate court may rule against such testimony sua sponte. This would clearly show that the preponderance level it’s self has not been reached.

    Please help me with the understanding of family courts in Texas and how the dissolution based on sec.6.001 escapes the requirements found in law.

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  6. My concern for the children of no-fault divorce might be understandable after you read “Primal Loss” written by Leila Mueller. The record is pretty quiet with regards to the child of the dissolution and I’m inclined to believe that the vast majority are not receiving competent representation.

    Since Insupportability case law is silent on the question of rights held by children, I am asking questions that are unsettled questions of law. Has any court ever detailed the full set of fundamental rights of the child as a citizen of the U.S.? What I find in the Texas Family Code is rather skimpy and sometimes at odds with what is found in U.S. Supreme Court case law.

    Is it recognized by the Family Law Section that there are actually two trials when the divorce is of two parents and children of the relationship? As I’ve mentioned the fundamental rights of religion, parenting, privacy and property, these rights related directly to the parent/child relationship. As it is found in the TFC, the suit for dissolution and the SAPCR are two sperate suites that are required to be joined at trial. This creates an impermissible violation as the SAPCR cannot be understood as ripe for consideration by the court until after the dispositional phase of the divorce suit has been completed. For the very reason that the outcome of the divorce claim cannot be known or prejudged prior to the trial phase and the opportunity for the respondent to present a defense to the claim. If it is a foregone conclusion that the trial judge will rule in favor of the claim, then any testimony or evidence for the respondent becomes irrelevant and his/her rights to contest the claim no longer exist. In the adversarial system of jurisprudence, this is a complete abdication of the trial judge’s oath and responsibilities.

    Looking back to the beginning and recognizing the discovery phase of the two suits separately, the interrogatories for the SAPCR are dependent and linked to the trial court’s ruling in the dispositional phase.

    As I may have mentioned earlier, the no-fault divorce has no harm element and the plaintiff makes an affirmative choice not to allege any fault towards the respondent. Since no-fault does not allege any fault and does not have a harm element attached to it, the testimony of any fault towards the plaintiff would be understood as irrelevant and prejudicial and objected to for preservation of error. What this means in it’s entirety is that there is no testimony or evidence in a no-fault suit that could possibly rebut the respondent’s parental presumption of being a fit parent acting towards his/her child’s best interests. The respondent who challenges the suit for divorce does so for those best interests of his/her child. This being so, the plaintiff’s fundamental rights that existed during the course of the marriage prior to the suit for dissolution continue to exist throughout the discovery phase and all the way through until the end of the trial phase.

    Please give recognition to the trial court’s balancing of interests at the onset of the trial. The respondent has done nothing to either waive or forfeit his/her rights and his full rights still exist. The child of the relationship has recognizable rights. The plaintiff files the claim that stands opposed to what was recognized by the State, the courts and both parents throughout the course of their marriage as being in the best interests of the child. For this reason and the understanding of the rights of the respondent and the child as they are intertwined by virtue of the parent/child relationship, the trial court must remain highly differential to the respondent’s rights, the child’s rights and the status quo ante.

    By way of waiver when petitioning the court, the plaintiff no longer has the same rights of parenting. The right to represent the child’s legal interests remain with the respondent who contests the dissolution. The representation of the child’s best interests is a benefit received by the child therefore stands as a right held by the child it’s self. With all this taken into consideration, it becomes quite apparent that any appointment of an attorney ad litem to represent the child’s legal interest would be an egregious breach of those parental right of both, the child and the respondent.

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