South Dakota, House Bill to End No-Fault Divorce

South Dakota State Representative Tony Randolph, on January 29, 2020, introduced a House Bill to remove no-fault divorce (see HB 1158).  The audio of his statements to the judiciary committee are available on the legislator’s website. As I listened to his presentation given on February 19, I noted some of his points.

Tony Randolph, SD Rep.

Randolph is an electrical contractor, a working guy. He argues that no-fault divorce is detrimental on society. Divorce is a ripping and a tearing. The idea of no-fault divorce (that one party can simply say I don’t want to do this anymore, for any reason, like “I don’t love you anymore,” or I’m interested in someone else) makes no sense for the highest contract into which anyone can enter. It is detrimental to society to end marriage so easily. It is equivalent to throwing the other spouse away and throwing the children away.  In breaking any contract, there is a penalty for breaking the contract, yet for one of the highest contracts that we can enter, we make it throwaway.

Rep. Randolph read into the record Beverly Willet’s letter supporting his Bill to eliminate no-fault divorce. She is a lawyer who founded the Coalition for Divorce Reform.  Children who grow up in intact homes with their Mom and Dad do better on all metrics than those who undergo divorce.  No-fault divorce violates that US Constitution’s protection to due process of law.  Defendants can do nothing to defend against a Plaintiff’s desire for divorce. Marital misconduct used to be the basis for divorce wherein a Plaintiff had to prove that some law-based right was violated by the Defendant.  Marriage constitutes a key-stone of the social order and no-fault destroys social order.

The government, said Rep. Randolph, is supposed to strengthen society, so it is within the government’s responsibility to end no-fault divorce. The South Dakota House Judiciary Committee voted 10 to 3 to reject the Bill. Thereafter, they voted on a motion to end the Bill.  An aid at the South Dakota Legislative Research Council told Mary’s Advocates that voting on a motion to move it to the 41st day means the Bill is killed because there is no 41st day.

Bob Riter, State Bar

Two opponents for the Bill lobbied the judiciary committee. Bob Riter, a registered lobbyist for the State Bar of South Dakota said the current law only allows for no-fault divorce with the agreement of both parties (find audio HERE). Unlike many states, a Plaintiff in South Dakota cannot force a divorce on a Defendant on the grounds of  irreconcilable differences, unless both parties agree, or the Defendant makes no appearance § 25-4-17.2 .  The other opponent for the Bill was Steven S. Siegel, a registered lobbyist for South Dakota Trial Lawyers Association. He said that the family lawyers he know believe that eliminating no-fault divorce is a bad idea.  Doing so would result in people airing their dirty laundry on the public record and it would be horrible to try to force people to stay married.

If one adopts the secular view of marriage – that the obligations should only continue as long as a party emotionally feels fulfilled by the marriage – then it is silly to try to hold someone accountable for breaking their marriage promises. However, if one holds the view that marriage is the building cell of society and children have a right to be raised in an intact home, then it would an act of justice to require the party who reneged on the marriage promises to repair the harm done to the other spouse and children. Justice would demand that fault-based divorce result in the party who wanted to keep the family together receiving compensation for damages caused by the party at fault. Justice would demand that children’s lives would be not be interrupted by forcibly losing everyday access to the parent who did not renege on the marriage promises.

I reside in Ohio, and defendants’ lawyers have been known to omit informing defendants that Ohio’s no-fault ground is inapplicable if the defendant denies it.  In Ohio, besides “incompatibility” a Plaintiff can force a no-fault divorce by being separated from the other for a year. Defendants’ lawyers have been known to omit informing defendants that marital abandonment is a crime in Ohio, and support can be obtained via suing for necessaries.

In South Dakota, there is no such option to force a no-fault divorce by leaving the marital home for particular number of months. I suggest that pro-family South Dakota legislators consider another idea for a bill:  Require the citation of defendants in divorce complaints to show all the grounds for divorce in a predominant way and show that the ground of “irreconcilable differences” cannot be used by a Plaintiff if the Defendant does not agree and informs the court of such.