Judicial Discretion - a 'problem' to resolve

Of all the issues that the Commissioners dealt with, judicial discretion was the most challenging.

Judicial Discretion is the power vested in the judge to determine the outcome of a case based on the evidence presented.

Typically, the 'accuser' presents a complaint or accusation and the 'accused' offers a defense to the accusation.

Prior to 'no-fault', the judge would make a judicial finding and write an order: to grant or deny the divorce based on facts presented. Some divorces were denied, especially if the accuser came to court with "unclean hands".

In no-fault divorce actions, cases are still heard by the court and the action is still considered a 'lawsuit' in spite of the way the language has been altered to make it appear otherwise.

But, the new ground for divorce - Irretrievable Breakdown - was intended to be a 'conclusory allegation'. In other words, merely saying it would mean it was true. And, this is how they took away judicial discretion.

In fact, a number of documents from the Project show how they wanted to assure the desired outcome. The judge's role needed to be turned into a ministerial act - a rubber stamp process - but they knew the public wouldn't buy that. It went against the deepest beliefs of the Founding Fathers.

In addition, when a judge carries out a 'ministerial act' the judge loses 'judicial immunity'. In other words, a judge could be targeted for damages when operating in an 'administrative' capacity ('rubber stamp' - no 'discretion').

By keeping the process in the courtroom, it looked judicial, even though the judge's hands were tied.

Another way to see it is that by eliminating discretion, the process becomes 'totalitarian', whereby 'state-imposed' divorce is the rule.

The terminology - 'no-fault' - was a palatable label for a process that was really ominous - even terrifying. Think about it. If the judge sits in for the state, and state policy is "every divorce is granted by the accuser's mere statement, "It's irretrievably broken," what happens when an occasional case arises where someone disputes that outcome? ...doesn't believe it's "irretrievable"? ...thinks that psychological help is warranted because there's an 'acting out' on the part of the accuser? What will this look like? Are we talking 'jail' in order to carry out state policy if someone objects to the imposition of a divorce? [See link to 'Florida Case.'] What else could it mean if there's no discretion?

As an agent of the state, a judge can deploy police powers to assure 'cooperation' in severing the marital ties.

It's understandable why 'discretion' was such a controversial issue.

The initial boldness of eliminating discretion has been somewhat softened by subsequent 'case law' that seems to uphold the idea of state-imposed divorce. The convoluted arguments are typically circular in logic.

Reading case law is an exercise in futility, because the first claim made is that the court carries out an 'inquiry' to determine the 'state of mind of the parties' but, the state of mind of the 'accused' is, by definition, disregarded.

Why it's not called 'state-imposed' divorce instead of 'no-fault' divorce is that it sounds too harsh. 'No-fault' divorce is one of the most successful euphemisms in all of history.