A constitutional litigation expert is offering to help protect marriage from no-fault divorce in the United States. Shelby Sharpe, of Fort Worth, Texas, said that he is offering his time as legal counsel pro-bono (free of charge) provided that the defendant covers the out-of-pocket costs of the legal proceedings.
Sharpe recently described a constitutional problem with no-fault divorce on March 8
, when he gave testimony in committee hearings for proposed legislation to repeal one ground for unilateral no-fault divorce in Texas. Unilateral no-fault divorce occurs, for example, when the court forces divorce on the defendant because the petitioning spouse says the parties are incompatible. The US Supreme Court, says Sharpe, has established principles required for defending parties’ rights to due process. Moreover, Sharpe explains that because no defendant can win a divorce case by stopping the divorce, the no-fault grounds are unconstitutional when they are forced on a party that does not want divorce.
Sharpe is collaborating with Mary’s Advocates to conduct a community outreach campaign in smaller states to try to find a defendant, willing to push this legal challenge through the appellate system, wherein divorce will be granted for grounds like incompatibility, irretrievable breakdown, or irreconcilable differences.
Mary’s Advocates is an educational non-profit organization working to reduce unilateral no-fault divorce and support those who are unjustly abandoned. Another problem with no-fault divorce is that many courts will not consider marital misconduct, such as abandonment or adultery, when making property splits, child custody, and support decisions. Consequently, the spouse who reneges on marriage promises is not held accountable to repair damage caused to a faithful spouse and children, who are counting on those promises being upheld.
To win for a divorce defendant, Sharpe needs more than his own arguments; in the state where the challenge is being made, he needs all the clerks of courts to provide written answers to depositions on written questions. Only the clerks from each local court can provide admissible sworn evidence that no one has ever won a no-fault divorce case on the basis that grounds for the complaint were not provable against the defendant.
There are twelve smaller states, with less than thirty divorce courts, that will force a divorce on a defendant simply because the plaintiff claims something like incompatibility, irretrievable breakdown, or irreconcilable differences: Alaska, Hawaii, Rhode Island, Connecticut, New Hampshire, Massachusetts, Arizona, Maine, Nevada, New Jersey, Wyoming, and Utah. Questioning the clerks in one of these states would be easier and less costly than in highly populated states. For example, Arizona has fifteen county courts, and questioning each clerk who might charge $200 each, would total $3000.
Alaska, Hawaii, Rhode Island, Connecticut, New Hampshire, Massachusetts, Arizona, Maine, Nevada, New Jersey, Wyoming, and Utah
The defendant willing to make this legal challenge would have to not sign any divorce settlement in which he appears to agree to be divorced. This risks angering a divorce judge who may make a punitive property division judgement, and parenting decision. Therefore, the ideal defendant would have no minor children subject to a custody battle, and be able to comfortably live with a property split that would be worse than 50/50.
If the divorce judge refuses to agree with Sharpe’s constitutional argument at the trial level, he would make recourse to an intermediate appellate court, state supreme court, and the U.S. Supreme Court. Shelby Sharpe has been accepted to argue cases at the U.S. Supreme Court since 1982. If the U.S. Supreme Court decides in the defendant’s favor, all states’ practice of forcing unilateral no-fault divorce on defendants would be judged as unconstitutional.
Any divorce defendant interested in making this challenge, who will cover his own out-of-pocket costs for legal proceedings, can find contact information on the websites of Mary’s Advocates
and attorney Shelby Sharpe
on Mary’s Advocates blog shows the grounds for divorce in the statues of the twelve smaller states listed.
Bai Macfarlane is the founder of Mary's Advocates.