No-Fault Divorce Challenged in Nebraska Court
- Posted by Mary's Advocates
- On January 7, 2019
- 4 Comments
by Bai Macfarlane, Director of Mary’s Advocates
A Nebraska husband who has been married for 32 years is a divorce defendant that asked the Court to dismiss the whole case because he is asserting that Nebraska’s state laws are unconstitutional. Mary’s Advocates, a non-profit organization upholding marriage, has obtained the public records of the case. Because Mary’s Advocates seeks reconciliation of marriages, the identifying information of the couple has been redacted in Plaintiff-wife’s complaint for divorce and the Defendant-husband’s preliminary challenge of unconstitutionality.
Readers might get lost in the legal jargon used in his request for the Court to dismiss his case. Husband defendant is asserting that the state Court lacks subject-matter jurisdiction to issue the judgments that his wife is requesting. The powers of the states are limited by the U.S. Constitution and the states’ constitutions. State legislators could enact laws that are actually illegal, and those laws can be corrected when someone aggrieved by the laws brings a challenge.
For example, if Nebraska legislators enacted a law saying that any short plaintiff less that 5’7” can request a civil court judge to force a tall defendant (over 5’7”) to pay the plaintiff $1000, a court would issue a judgement against the tall defendant. If a tall defendant complained to the court that this law is unconstitutional, the court would have to refrain from issuing the order until after the challenge against constitutionality was resolved. One reason this ridiculous law would be unconstitutional is that it denies each defendant’s right to due-process and fair notice. Due process and fair notice include informing the defendant of the harm the defendant allegedly caused the plaintiff — and the real possibility of the defendant proving himself innocent. Tall people are doing no lawfully restricted harm to short people, so said law would be unconstitutional. Another reason is that it is absolutely impossible for any person over 5’7″ to prove oneself to be less that 5’7”. Violations of due process and fair notice are a reason for a court to lack “subject-matter jurisdiction.”
The Nebraska husband’s motion to dismiss says “the divorce statute precludes judicial competency” and “the divorce statute serves as a ruse.”
The current divorce statutes show that grounds for divorce exist if plaintiff asserts that the marriage has become irretrievably broken. Defendant-husband asserts, “The plaintiff fails to present a legal dispute, case or controversy. Plaintiff does not present a material question of fact as to the cause of action. Plaintiff is only requesting that this Court render an advisory opinion as to whether it thinks the marriage has become irretrievably broken.”
With correct due process and fair notice, a plaintiff has no right to bring a civil complaint against a defendant unless the defendant is alleged to violate some legally protected right. Just as legislators cannot invent a right to have no tall people around, the legislators cannot invent the right for all spouses to “feel” their marriage is not broken. This is subjective gobbledygook.
The Nebraska wife, furthermore, asked the Court to evict her husband from the marital home. In Nebraska, divorce judges routinely evict innocent defendants from their homes because the statutes show a divorce judge can evict a defendant simply because the plaintiff says, “emotional harm would otherwise result.” The U.S. Constitution restricts states’ power to deprive one of property because property is a fundamental right. Marriage is also a fundamental right. When states’ legislators interfere with residents’ fundamental rights, as said by the husband, “the State may not apply its usual deference to the constitutionality of the statute. Rather, the strict scrutiny standard must be applied. This alters the burden of proof to the State. The State must, therefore, prove that the divorce statute serves a compelling State interest.”
In coming weeks, the local Court will either ignore, deny, or grant the defendant husband’s motion to dismiss the complaint for divorce. Court rules require that the Nebraska state Attorney General be notified and offered the right to weigh in on the challenges against the constitutionality of state statutes.
4 Comments
1.) The first half of his comment is irrelevant because marriage does not fall under contract law. Fortunately, he admits statutory jurisdiction, but completely ignores constitutional jurisdiction.
2.) The Strict Scrutiny test is a standard of review, not a legal argument. And the plaintiff does not have the burden to prove a compelling state interest as Brisky has previously suggested. The whole point of Strict judicial scrutiny is that the State, not the plaintiff, bears the burden to prove a compelling state interest, meaning a public interest. This is impossible with no-fault because while at-fault divorce statutes are based on public policy, no-fault statues are based on private policy. It serves private interests fundamentally as it only requires private deliberation.
3.) There is no triable issue of fact because the no-fault statute does not prescribe any rights, duties or obligations devolving upon the defendant. Any determination that a marriage is irretrievably broken would be based on the Judge's personal views and will about the quality of the marriage, not based on any public judgment as to what the law is regulating. Without a legal right, duty or obligation owed to the plaintiff, a judge cannot ascertain the law, because there is no law to ascertain. It is void for voidness.
4.) Brisky doesn't seem to indicate an understanding that no-fault divorce statutes do not require the judge to determine whether a marriage is irretrievably broken, but whether the plaintiff has made a statement, made an allegation, or demonstrated their belief in some way that it is. This is a fundamentally different interpretation, because it is one that leaves a judge without discretion, meaning that divorce becomes a ministerial act, meaning that judges act in the absence of subject-matter jurisdiction because this undercuts to the competency of the judiciary to act as an independent and discretionary body.
4.) Neither Scalia nor Thomas believe[d] in substantive due process, so why does Brisky? If he means there is no substance to the no-fault statute, I agree. But that just means that a judicial process is impossible. If he means marriage is protected by substantive due process, I fundamentally disagree, and Brisky does not know about Joseph Story, the overturning of legislative divorces, Boddie v. Connecticut, or New York's Constitutional articulation of a "due judicial proceeding" "granting divorces." Proceeding is synonymous with process...
If he is suggesting that because marriage is a fundamental right it is protected by substantive due process, this is misleading. If that were true, I would love to see how he distinguishes between the legal function of at-fault statutes as opposed to no-fault statutes. Why would substantive due process repeal no-fault and not repeal at-fault grounds? His argument doesn't make any sense to me.
I welcome a two-way dialogue to discuss and constructively challenge his argument, but frankly it is without any legal basis, historical precedent, or insight into how no-fault statutes are being statutorily interpreted in our country.
The defendant in item 17 asserts "The statute directly interferes with the fundamental rights of marriage, privacy, religious belief and religious exercise. This means that the State may not apply its usual deference to the constitutionality of the statute. Rather, the strict judicial scrutiny standard must be applied." He there is saying that marriage is a fundamental right.