TX Committee Juvenile Justice & Family, End no-fault Divorce

pictured are TX Rep. Matt Krause, and lawyer Shelby Sharpe

Author: Bai Macfarlane, Mary’s Advocates

On April 12, the Texas legislature’s committee for Juvenile Justice & Family Issues voted in favor of ending unilateral no-fault divorce in cases when the Plaintiff could automatically be granted a divorce simply because he asked for one. No-fault divorce started in the late 60’s in California it was sold to the public as a way to allow parties to divorce amicably when both parties want divorce.

However, unilateral no-fault divorce has morphed into the most outrageous infringement by state courts upon the most fundamental natural rights. In no-fault divorce, children are routinely denied everyday access to a parent who has done nothing grave to justify separation of spouses. Innocent parents are kicked out of their own homes. Abandoners are purportedly relieved of their obligation to provide their full share of support to the marital home. By contrast, abandoners are awarded much of the marital property, and often rewarded with ongoing financial support too.

Texas Representative Matt Krause introduced HB 93 last November, and if passed, it would repeal “insupportability” as a ground for divorce. Presently, if a Plaintiff claims marital insupportabilitq, the courts are empowered to force a divorce decree on an innocent spouse who wants to keep the family together. Public hearings for HB 93 were held on March 8, wherein constitutional law expert, Shelby Sharpe explained that unilateral no-fault divorce is simply unconstitutional–because it is impossible for a defendant to win and stop a divorce (watch video below).

Even if “insupportability” is repealed as a ground for divorce, Texas law allows for unilateral no-fault divorce after an abandoner has separated from his spouse for three years (Texas Family Code § 1.6.006). During that interim, however, the spouse who is counting on marriage promises to be fulfilled can get much financial support. Texas Family Code § 1.2.501, specifies that each spouse has the duty to support the other: “A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the spouse to whom support is owed.”

In my telephone conversation with Shane Birdwell, the Communications Director for Representative Matt Krause, Birdwell said the next step for HB 93 is to go to the Calendars Committee. They have jurisdiction to determine priorities for floor consideration of bills. Birdwell explained that if, after 30 days, Calendars does not vote on the bill, it will automatically move to be heard by the full House of Representatives, but the leadership of the House decides which bills deserve higher priority. See history of the HB 93 HERE, and read Committee Substitute HERE.  If this bill is not heard on the floor by May 29, (the end of this session), it dies.

Starting a minute:second, 5:36 – 8:44

Shelby Sharpe: The due process problem is, if I have a constitutional right, and you can take it from me, and I have no due process, that creates a problem. By the way, do you realize this is the only law that has ever been passed where the defendant cannot win.  Do you want to put that over in workers’ comp? Do you want to put that in torte cases where the defendant can never win?   Wow!  Do you want to put that in Med Mal cases where they can’t win? But this is the only one where they can’t win.

Moderator: Mr. Kain (sp?) has a question.

Questioner:  I like where you are on due process. I believe in the beginning you kind of, maybe, mentioned six element and said there are two elements not present here. Could you explain those or describe them for me?

Shelby Sharpe: The two elements: 1) you have to be able to prove a legal bar to the divorce, or 2) a lack of merit in the claim.  Those are the final two elements of the six elements the Supreme Court of the United States say make up due process.  The first four elements are all there. In other words, notice, right to have counsel, right to be able to call witnesses, right to be able to put on proof [missing] to do two things – one, either show a legal bar (which there is none), or show a lack of merit.  By the way, when I handled that divorce case back some time, as a constitutional issue, I got the certificates of 175 of the 254 clerks that divorce cases were filed.  From 1970 to 1993 when I handled that, they told the number of cases filed, and the number of cases not dismissed for want of prosecution, that went to a judgement, the plaintiff won every one.  Not that is irrefutable proof that this violates (and by the way, every constitutional lawyer I’ve talked to, NOT family lawyer, they say this is a no brainer. Thank you very much.

Moderator: Mr. Dale (sp?) has a question.

Questioner: So has anybody ever brought a constitutional challenge to this?

[Shelby Sharpe raised his hand]

Questioner: And?

Shelby Sharpe: At the end of the trial, the judge dismissed his court reporter. I had filed a brief, and the judge said “Mr. Sharpe, you’re absolutely right. This thing does violate it. The opposing counsel, the petitioner, he said “Judge, I couldn’t file a response because he’s right.” And the Judge says, “But, I want the appellate court to tell me. Me personally, it’s unconstitutional.”  My client, by the way, I was pro bono; it didn’t cost him a penny. But, he decided that he didn’t want to carry it any farther. If I could ever get somebody that would let me get in the Supreme Court of Texas with this on no-fault, I know that court well enough because I’ve been before them on a ton of times on constitutional issues, they would say it is unconstitutional. If I could get before the Supreme Court of the United States, they would knock it out in all 50 states, because it is a patent thing. Nobody has got a case that supports them on the due process part. It is just not there.