In northeastern Ohio, Catholic marriage advocate Bai Macfarlane is challenging the practice of domestic relations lawyers in her area after researching Ohio criminal law and historical records about divorce. She questions whether divorce lawyers are in collusion with each other for their own profit by furthering divorces rather than upholding Ohio law. She’s compiled findings on the ProFamiliesOhio website. See here
When the current laws are actually implemented, Macfarlane says “Unhappy spouses are encouraged to get help improving their marriage, rather than paying divorce lawyers.” She says “Fear of breaking the law may not be the most virtuous reason for someone to choose to work on improving his or her marriage. However, if the law is the reason that a family stays together and a marriage improves, it is still worth obeying these laws. The children and faithful spouse who do not want a divorce would be most interested.”
Macfarlane says that if properly enforced, that laws on divorce in Ohio could protect the average spouse and their children from forced no-fault divorce. Those who marry in the Catholic Church do so with the understanding that separation is tolerated under certain limited conditions: e.g. when a spouse has committed adultery, or if a spouse has repeatedly engaged in gravely dangerous behavior such that separation is the only way to be safe. When Catholics marry, they agree to mutually help each other. They agree to maintain an intact home unless a morally legitimate reason for separation exists. Any Catholics who seek to separate, said Macfarlane, can do so only under arrangements that are in accord with Catholic Church canon law.
Msgr. Charles Pope, a popular Catholic blogger, recently called upon estranged Catholic couples to work things out. He wrote:
"Children deserve and have the right to expect two parents, a father and mother, committed to each other till death do them part. Anything short of this is a grave injustice to children and a mortal sin before God. … Married couples must learn to work out their differences (as was done in the past) and not resort to divorce, which offends God (cf Malachi 2:16)."
The most recent public records from the Ohio Department of Health, Office of Vital Statistics shows that in 2011 there were 39,000 divorces and 67,000 marriages in Ohio. One sixth of those divorces occurred in the 5-county area around Cleveland. According to Macfarlane, Ohio divorce lawyers are coercing the spouse who doesn’t want divorce (who has done nothing grave enough to justify separation) to agree to terms of a divorce, threatening that if they don’t comply they will be charged huge attorney fees, and even risk losing their children.
Macfarlane found that in Ohio, the law says that if the spouse wanting the divorce cannot show that the other is guilty of extreme cruelty or gross neglect of duty (or other grave faults listed in the law), the one wanting to break up the family can only get their divorce under two conditions:
1. If the person filing for divorce says the parties are incompatible, this could be a ground for divorce, unless denied by the other party. Macfarlane says that some lawyers never tell the defendant that they can eliminating this ground for divorce by denying incompatibility.
2. The only other ground for no-fault divorce is when parties live separately and apart for a year. However, if one spouse leaves the marital home (when the other has done nothing grave enough to justify separation), this is a first decree misdemeanor against the family according to Ohio criminal law.
Macfarlane believes many Ohio civil divorce pleadings should be dismissed outright, or dismissed after a simple hearing demonstrating that grounds for divorce do not exist. As an example, Macfarlane said that if a woman had no morally legitimate reason for separation and wants a divorce because she has fallen out of love, feels emotionally distant from her husband, and finds his personal quirks annoying, it would be false to say her husband is extremely cruel.
An honest attorney, said Macfarlane, would advise her that she could be charged with perjury for signing an affidavit containing this falsehood. Likewise, Macfarlane said an honest judge should tell the attorney the same and the case should be dismissed. If the woman were given a speedy trial, and all she could show was that she didn’t like how her husband left his socks on the floor and that he was controlling how their dishwasher was loaded, the case should be dismissed. In this case, grounds for divorce would not exist and she cannot use incompatibility as grounds in Ohio when the husband denies incompatibility.
Macfarlane spoke with several lawyers to understand aspects of family-law practices in her region. “All of them said that in their cases, divorces are issued because of the ground of incompatibility or living separate and apart,” Macfarlane said.
When she asked the divorce lawyers about the Ohio law stating that abandonment is a crime against the family, she got various responses. “One lawyer told me people can separate, but that does not mean one has been abandoned; another told me that this law is only for non-support, but not abandonment; another told me (after showing her this law) that she didn’t want to me to quote her in any article.”
According to Ohio law, married couples contract with each other “respect, fidelity and support” (ORC 3103.01). When no-fault divorce laws were being enacted across the US in the 1970’s, the sponsor of the Ohio legislation explained to his fellow legislators his proposal in 1974:
"This bill does not call for an easy divorce system similar to California's ‘no-fault’ divorce. I am opposed to the California system -- and let me tell you why. In California, if either spouse wants a divorce -- for any reason -- or for no reason at all -- that spouse gets his or her divorce, with the other marriage partner having no opportunity to contest or defend. ... Now that kind of one-sided procedure offends my sense of justice -- it took both parties to enter into the marriage, both should be involved in deciding whether to terminate it (Norris, HB 233, SB 348)."
The Ohio legislators, for the first time, gave parties the option to mutually agree to the terms of ending their own marriage without having to prove one was guilty of any offense against marriage (like adultery, or extreme cruelty). This legislation also gave parties the option to contest the terms of the divorce if they were mutually agreed to be separated for two years. The terms of divorce are custody, property division and support. Macfarlane publicizes on ProfamiliesOhio.com the legislative records collected from the Ohio Historical Society in Columbus. She says “It is clear that the legislators never intended for one party to force divorce on the other when the other did not want divorce and had committed no grave offense against marriage.”
In 1989, the legislators added to the list of grounds for divorce: incompatibility, unless denied by the other party. Macfarlane found the sponsor of the 1989 legislation told his peers “Ohio is not a ‘no-fault state,’ and we do not want to move to that. If one party objects, the other would have to prove another ground (Trantor).”
Macfarlane says, “The first divorce lawyer I interviewed was wrong about Ohio law when he told me, ‘You have to understand that Ohio is a no-fault state, so it is almost unnecessary for anybody to prove grounds at the stage in our history.’”
is a work of Mary’s Advocates, the non-profit organization founded by Macfarlane to strengthen marriage.