Deploying the State’s Police Power to Sever Marital Ties

Could you be jailed for trying to preserve your marriage? There’s an ongoing case in the State of Florida that reveals this is entirely possible.  

According to Florida public policy, “Just as the family is the foundation of society, the marital relationship is the foundation of the family.”

How could someone – who has not been accused of an ‘offense’ – be threatened with jail for trying to preserve their marriage and family unit?  The woman involved in this case has already been fined $15,000, and has faced the threat of jail. She has taken a stand, in part, to try to protect her 13-year-old daughter from the harm of divorce – including consequences that are clearly laid out in the report, “The Effects of Divorce on America,” by Patrick Fagan and Robert Rector. So far, the court isn’t buying it. Judges understand how no-fault divorce is supposed to work – that the results are always ‘uniform’ because every divorce is granted.

Some background….

Florida’s No-Fault Divorce law was actually designed and drafted by a national group of lawyers/commissioners.  

“Although state legislators are principally responsible for drafting laws, members of the National Conference of Commissioners on Uniform State Laws are real masters of that craft. Acting as a sort of shadow super-legislature, they have written such bulwarks of state statutory law as the Uniform Commercial Code, the Uniform Partnership Act, and the Uniform Probate Code.” (1)

In 1965, the Commissioners announced they were going to begin a ‘Project’ to draft a new divorce law ‘blueprint’ for the states.  By 1968 they had received funding. After hiring staff, the Project was underway. 

A handful of ‘insiders’ maneuvered to get the outcome they wanted which was to essentially strip the judge of any ‘judicial discretion’.  Any person who filed for a divorce would get a divorce – no matter what the circumstances.  But the rest of the Commissioners could see that this outcome was too radical for public sensibilities so they decided to ‘camouflage’ it, in order to make it more palatable to the public and to state legislators.

Dissension within the ranks almost derailed the Project. Some Commissioners objected to the direction things were going. One high-level official challenged the Commissioners to be more honest about what they were proposing:  

“I respectfully submit that if marriage is to be terminable by unilateral action without any judicial determination that the marriage is in effect dead, then the proceeding has no business in a court of law and should be relegated to a ministerial function in the marriage license bureau.” (2)  

There were no empirical studies to support the need for this policy-shift and the inter-disciplinary professionals that were invited to be ‘advisors’ and ‘consultants’ on the Project were marginalized or ignored.   

During their law-drafting sessions, the Commissioners even joked about how much their product resembled Russia’s system of Post Card divorce. [see an inside account written by a Russian woman, published in the Atlantic Monthly in 1926]  

They said it would help couples in crisis by focusing first and foremost on the “best interests of the family.”  They claimed that the family’s collective interests would receive help from various places, including Conciliation Courts with their mission of restoring family health, or inter-disciplinary professionals, such as religious leaders, marital and family therapy specialists and others that would be readily available to assist families. 

The stated goal of the ‘model law’ was: “to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships”.  They suggested that this was going to be the most important uniform state law ever drafted.  But, they were proposing something that was radical – the judge’s role would be to terminate every marriage that came to the court. A Florida Supreme Court ruling claimed a judge couldn’t do this before having a meaningful “inquiry,” but, that detail has magically disappeared from divorce ‘hearings’. (3)

Florida lawmakers had a “hurried drafting pen.”(4) Making only a few minor changes, they rushed the blueprint into law in 1971 (the same year that no-fault car insurance was enacted). It only took two weeks from the end of their floor debate to the implementation of the law, even though work wasn’t done on the national draft of the law, and it hadn’t received approval from the American Bar Association, which finally came in 1974 – a necessary formality before a new law can be ‘promulgated’ (officially released).  

Products that are ‘faulty’ and are deemed ‘harmful’ are being taken off the shelf. Florida’s No-Fault Divorce law falls into that category and needs to be recalled.  
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(1) “ULC to Meet – for 100th Time,” The National Law Journal, July 29, 1991, p 3.
(2) Excerpt from a letter written to the Commissioners on September 26, 1969, by Hon. Louis H. Burke, Associate Justice of the California State Supreme Court.
(3) The Florida Supreme Court in its 1973 Ryan v. Ryan Opinion said that an inquiry must be part of the process, but now, the only inquiry is to ask the petitioner two questions: “Is the marriage irretrievably broken?” [Yes], and “Is there any chance of reconciliation?” [No]
(4) Virginia Anne Church, “Faults in Florida No-Fault Divorce,” The Florida Bar Journal, Vol. 45, No. 9 (Nov. 1971), p. 568.