Challenge to Massachusetts No-Fault Divorce

Constitutional Challenge against Massachusetts No-Fault Divorce Law under Viewpoint-Discrimination

By guest contributor, Justinian

On February 15th, the divorce defendant, Mark E. Dallmeyer, filed a claim that the Massachusetts no-fault divorce law is unconstitutional. See Motion to Dismiss. He’s inviting other divorce defendants to do the same.  In Massachusetts, six months after a plaintiff’s filing, the court can force a divorce on any defendant, simply because the plaintiff says that the marriage is “irretrievably broken”.

In the Fall of 2020, Marks wife, of nearly thirty-five years, filed a court complaint asking for unilateral “no-fault” divorce. From the beginning, Mark has contested this divorce. His pre-trial date is set for April 25, 2023. Mark says he found Mary’s Advocates’ coverage of a Pennsylvania husband’s constitutional challenge against no-fault divorce (Pankoe v. Pankoe), which inspired him to do the same in his own state.

In filing his motion challenging the Massachusetts unilateral “no-fault” divorce statute, Mark also challenges the Court’s subject-matter jurisdiction, which strikes at the core of state authority. Mark intends to take this as far as he can in order to bring light to what he believes is a void and unconstitutional law. Fundamentally, he argues that the “no-fault” statute in Massachusetts is a viewpoint-based statute, which requires the courts to discriminate between opposing viewpoints, namely whether a marriage is “irretrievably broken.” The U.S. Supreme Court has emphatically stated that the “legislative powers of the government reach actions only, and not opinions” (Reynolds v. United States, 1879). Mark argues that the question as to whether a marriage is “irretrievably broken” is a matter of opinion, which the government does not have authority to regulate. Moreover, the law cannot exist as a government-sponsored preference for the inevitable outcome that marriages brought to the Court are necessarily “irretrievably broken.”

Mark Dallmeyer (source LinkedIn)

The State of Massachusetts was recently handed a blistering 9-0 defeat in the recent 2022 case, Shurtleff v. City of Boston. This case was all about how the State of Massachusetts committed viewpoint-discrimination in violation of the 1st and 14th Amendments. In a similar vein, Mark feels that Massachusetts has overstepped its Constitutional limitations and is so drunk with power that it continues to enforce this unilateral “no-fault” divorce law that targets the opinions rather than the conduct of its own citizens. Ultimately, this law means that divorces are granted based on the State’s preferred ideological viewpoint. Among the many arguments that Mark puts forth in his Motion to Dismiss, viewpoint-discrimination in violation of the 1st and 14th Amendments is the central issue. Massachusetts was repudiated for committing viewpoint-discrimination in 2022 and it seems that it has yet to learn its lesson since the “no-fault” law is entirely about viewpoint-discrimination.

Though the Pennsylvania case (Pankoe v. Pankoe) was taken all the way to the Supreme Court of the United States (SCOTUS), the Court only agrees to judge about 1-3% of the cases that reach its chambers, per year. It is important to note that SCOTUS did not rule in favor or against the Pankoe case. It simply decided not to review the case and just denied the Writ of Certiorari request. Mark Dallmeyer believes that until the “no-fault” divorce issue is finally settled at the highest Court in the land, “there’s no reason why we shouldn’t keep trying to make our case in court.”

Mark can be reached at [email protected]. He is interested in corresponding with others who wish to challenge the “no-fault” law, who have just recently been served their copy of the plaintiff’s divorce complaint. He emphasizes the importance of acting immediately so defendants do not forfeit their ability to make their own constitutional challenge.

We will be watching this case closely and will provide updates as needed.

Feb. 24, 2023 update: The judge in Massachusetts has given both parties the opportunity to submit briefs in favor and against the motion, due no later than March 17th. Then, he said he will give a ruling on the motion.

COURT EVENTS

October 2, 2020 – Wife’s Complaint for Divorce
Feb. 15, 2023 – Mark’s Motion to Dismiss .
UPDATED after Feb. 22, 2023.
Feb. 22, 2023 – Court Order for Submission of Briefs
Feb. 24, 2023 – Mark’s Notice to Massachusetts Attorney General.
Mar. 3, 2023 – Mark (Defendant’s) Brief in Support of Motion to Dismiss

Excerpt from “Defendant’s Motion to Dismiss”