Stopping Your Own Divorce --------------- Feedback Box:
Factors that will make this kit especially useful:
* You trust our Lord Jesus, you love God, you love His Word, and you are not afraid to obey Him.
* Your spouse has filed for a divorce, not for deep-seated or traditionally legitimate reasons, such as your adultery or violence, but because it is easy, cool, pop songs promote it, and gossiping friends talk it up. A dose of common sense might snap your spouse out of it and save your marriage.
* You have children who, despite your marriage problems, are still thriving under the loving care of both parents, and who will be devastated by divorce.
* Your family is financially sound now, but will be financially ruined by divorce.
* You have children, of whom you want custody, partly from concern that if your spouse is able to stop loving you, your spouse is able to stop loving them -- a tragedy you have witnessed many times!
* Their are inconsistencies in your spouse's reasons for divorce. For example, your spouse is divorcing you because you aren't home "enough", even though by divorcing you, you won't be home at all. Or, your spouse has religious beliefs which condemn your spouse's filing for divorce, and which will cause your spouse great spiritual, psychological, and emotional upheaval for pursuing what even your spouse believes is wrong. Or, your spouse is motivated by shame for some real or perceived failure, which will only be made worse by a failed marriage.
* You care deeply enough about saving your marriage to take a simple initial legal step which you can take without an attorney, OR to seek an attorney who hates the ease, with which divorce is granted, enough to study a strategy which is not traditional.
* You have some concern that your spouse might falsely charge you with abuse in order to get child custody, and you would like a little insurance against that possibility.
Steps to Saving your Marriage:
Here are the easy steps you need to take:
* If you have just been served with a divorce "petition" [a request for the judge to grant the divorce] you have usually 10 days to "respond". You (or your attorney) need to type up a response, and you need to include some or all of the language in this Kit. (If you miss the 10 day deadline, see Appendix B.)
* While you are waiting the 3 months which Iowa law requires you to wait before divorce is final, you need to be ready when the points in your response prod your spouse to talk to you about the sanctity of marriage bonds! Hopefully God will give you wise answers which will encourage your spouse to retract the petition and return home!
* In the event the petition does go to trial, you need to be ready. Either you need to have an attorney willing and prepared to present the points you have made in your response, or you need to prepared to represent yourself at trial, without an attorney. (See Appendix A, "The Pros and Cons of Representing Yourself".)
Before we get to the meat of the Response which this Kit proposes, here's a really quick issue to respond to, and easy to understand. Iowa law requires a 90-day wait for a divorce. But your spouse can ask for an "expedited hearing" to allow the divorce in less time. This is a no-brainer: deny it! If you don't want the divorce even after the 90 days, you certainly don't want it before! If you don't agree to it, the judge won't force it on you.
The response proposed here is written for ease of understanding, and for ease of incorporating into your official reply to the court. All you have to do is read it, edit it where it doesn't really apply to your case, or you don't really agree with it, and import it under your own letterhead.
The terminology isn't hard. Your spouse is called the "petitioner" and you are called the "respondent". You can simply type up your response in roughly the same format as the "petition" which you received. The "petition" has numbered paragraphs which the "petitioner", the petition says, "alleges". #1 might "allege" that your name is Joey Burned, and your spouse's name is Kim. #2 might "allege" your address is 777 Righteous Street. Etc.
In your response, all you have to do is go down that numbered list and say whether they are true or false. For example, you can say "respondent admits" #2, 3, and 4." If there is any statement which is not true, or if you think the judge should know something which your spouse left out, you should say it in your response.
The typical response is pretty cut and dried. Ordinarily it doesn't contain any fireworks; just cotton candy.
There is only one statement in this "petition" which puts up the antennae of anyone who honors marriage:
"There has been a breakdown of the marriage relationship to the extent that the legitimate objuects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved."
Here is where you get busy.
The solution I propose would begin with an amended answer to the original petition, which would deny the standard paragraph alleging the legitimite objects of matrimony have broken down.
In your response, you will say:
Respondent denies #7 [or whatever number it is]. The legitimate objects of matrimony have not been destroyed, and there remains a very reasonable likelihood that the marriage can be preserved. However, although the legitimate objects of matrimony have not yet been destroyed, granting of this petition will destroy them. Respondent pleads with the court not to destroy the legitimate objects of matrimony by granting the petition for divorce.
Iowa law requires real evidence of a marriage breakdown before a divorce may be granted, and case law says this requirement cannot be satisfied by a mere stipulation. By any rational definition of "legitimate objects of matrimony", the legitimate objects of this matrimony have not yet been destroyed.
There are some options for you. If you want to pique your spouse's curiosity, just add the two paragraphs you just read, and let your spouse wonder for the next three months what you have up your sleeve. This approach will provoke him or her to question you, which will be a wonderful thing, since the substance of your discussion will be whether, indeed, your marriage bonds can still be healed! At that point you will have the option of revealing your entire legal argument, or just talking to him or her about it in your own words without showing her the actual language. By discussing it in your own words, he or she will logically assume the arguments are even more carefully presented in their written form. But without knowing how much better they are, he or she may not look forward to judicial scrutiny of whether he or she is making up problems which don't exist.
The Long Version: The Details
You just read the general idea. Here are more details. These details are not any harder to understand. In fact, details help you understand a subject more clearly.
In Iowa, (most other states have similar laws), the divorce petition must allege that "There has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved."
That sentence is found in Iowa Code 598.5(7), "Contents of Petition".
Don't let the numbers intimidate you. If you didn't let commitment to your marriage intimidate you, don't let a silly law book intimidate you!
If you have never read Iowa law out of a lawbook before, here's how: go to any library and ask for the "Code of Iowa" (Iowa laws). Pull out volume 3, whose cover says it has Iowa Laws 505 to 912. "Chapter" ("§") numbers are shown at the top of each page, with a decimal after the chapter number and one to three digits after the decimal. Example: § 598.5.
In fact, that's the number you need to look for. It's about in the middle of the book. Before long you should read the whole chapter, which is only 10 pages long! One of the most troubling 10 pages in Iowa history! (There are another 10 pages that deal with child custody.)
§ 598.5 is the 5th section of Chapter 598. It and it's title, "Contents of Petition", are in boldface. Within this particular section are 10 numbered paragraphs. The one we're concerned with here is #7. Hence the paragraph is cited as: "Iowa Code § 598.5(7)".
Every Iowa petition [application] for divorce will contain the language of § 598.5(7). The spouse upon whom the "petitioner" has served the divorce papers then has a certain amount of time to lodge a formal "response" to the court. (The spouse who must respond is called the "respondent".)
The petition will have numbered paragraphs, corresponding to the numbering, probably, of § 598.5. The respondent will respond to each paragraph, indicating whether he "admits" or "denies" each, referring to them by number. For example, perhaps he "admits #1", which is the name, birth date, address and county of residence of the petitioner, and the name of the attorney.
The purpose of this article is to suggest how to "deny" the paragraph in your petition which correspondes to § 598.5(7), that the legitimate objects of matrimony have indeed been destroyed!
Before we get into our model response, it is probable that by the time you see this article, the response, in any divorce you may know about, will already be filed, since there isn't that much time to file a response, and there is more pressure on respondents to contact attorneys than to spread the grim news to friends.
That's OK. You have 3 months after the petition is filed before you go into court. All you have to do is file an "Amended Response" at any time during that 3 months. Just replace whatever previous response you had to #7 with the following.
If you really want to resist the divorce, perhaps it has already occurred to you to "deny" #7, and not to "admit" it. In other words, perhaps you have already told the court you don't think the "legitimate objects of matrimony" have broken down. If so, great. But you should still file an "amended" response in order to include some more detail.
If not, if you "admitted" that your marriage is down the toilet, no problem. Just file that "amended" response and tell them you deny such a thing.
You don't even have to apologize for that error. You don't have to blame it on unfamiliarity with, or intimidation by, legal protocol. You don't have to say your amended response is prompted by further reflection, after going through family movies, or whatever. The amended response simply ignores your initial response and proceeds to lay out what it should have been. It replaces your initial response. Your initial response is "thrown away", leaving no need to apologize for, or explain, something that doesn't exist.
(The "amended answer" should contain all the rest of your answer, too, that you don't want to change.)
If you have an attorney, he will have to be the one to file your amended answer. In that case, the only thing for you to do will be to read this, decide if you want to do it, mark it up with a red pen to fit the facts of your case, and ask your attorney to file it.
WARNING: The limits of this brief, that I know about, are (1) I am not a lawyer and may have missed a point or two. (2) This thing is so lengthy that I assume you will use it like a grocery store where you shop for a few things you like, but don't take home the whole store. (3) I stopped doing legal research on divorce cases about 1987, so the cases I cite are old. I assume any lawyer who uses any of this will know more recent cases to add. Or you can read new cases yourself. Just read all the cases for the past year, and the older cases which they frequently cite, and that should give you a pretty good feel. Even if nothing is added, however, this brief should be useful. I have not heard of significant changes in the matters which this brief addresses. (4) This has never been tried. I have offered it to many who initially told me they wished there were some way they could actually contest the divorce; but as I began to suggest that there might be ways to contest it, by amending the initial answer and raising arguments in court, they decided well, actually, as long as the other one started it, maybe they really didn't want to stop it.
That wasn't my case! I was willing to try anything to stop my divorce in 1979. But everyone told me it was impossible. This brief is written for anyone who wants to save their marriage as much as I did.
Model response to #7
The following is intended to be incorporated into any response to a divorce petition, insofar as it applies.
Respondent denies #7. The legitimate objects of matrimony have not been destroyed, and there remains a very reasonable likelihood that the marriage can be preserved. However, although the legitimate objects of matrimony have not yet been destroyed, granting of this petition would destroy them. Respondent pleads with the court not to destroy the legitimate objects of matrimony by granting the petition for divorce.
Iowa law requires real evidence of a marriage breakdown before a divorce may be granted; by any rational definition of "legitimate objects of matrimony", the legitimate objects of this matrimony have not yet been destroyed. (See appendix.)
That's it! That's all you put in the main body of the response. You put all the rest in your appendix.
Actually this may be impossible to process by your 10 day deadline, but here is a compromise:
You can insert just the two paragraphs, without any further explanation. If you decide to tip your hand before trial, you can, at any time during the 90 days, file an "Amended Response", and simply add the "(See Appendix)" at the end of the two paragraphs, and then add the Appendix at the end.
Normally one doesn't tip his hand by telling his legal adversary what arguments he will use, before he has to. But my hope is that the very serving of these arguments, and the notice that these rather irrefutable points would actually be argued in court should the petitioner go through with it, would be enough to persuade the petitioner to drop the petition and realize what a wonderful marriage was nearly thrown away. This is a reasonable hope because these arguments are not only legally sound, but they contain spiritual substance.
But if the appendix is never filed, the other attorney may become mad with curiosity, enough to try to use a "pretrial motion" to worm it out of you.
(A "pretrial motion" is a written argument filed with the judge before trial, asking the judge to make a ruling, before the trial starts, on how the trial should be conducted.)
For example, the other attorney might file an "In Limine Motion" (to eliminate consideration of part of your evidence). The other attorney might say you should not be allowed to present evidence that "the legitimate objects of matrimony have not broken down", because it is a 30 year tradition that if one spouse alleges they have, every judge assumes they have, whatever they are, which no one knows anyway, because no one cares to know, and if we start caring now, trials will just get longer and judges are already working too hard. As for the requirement in the law that there has to be evidence, why, that is just too unrealistic, or something, to actually obey. And as for this claim about case law, why, what case law?
That's just an example, of course, of what a pretrial motion might say.
Your answer to a pretrial motion would need to defend your right to present evidence, at trial -- not in the pretrial motion, that the legitimate objects of matrimony have not, yet, broken down. So at that point you could draw, out of this kit, whatever arguments would be appropriate to the challenge from the other attorney.
There is another advantage to presenting your entire arguments prior to trial: if you save them for trial, there is a great danger that an impatient judge will cut you off before you can present them. (If that happens, you should ask to put your arguments on record anyway, so that they will be on the record should you appeal.)
On the other hand, if you present your arguments 90 days before the trial, there is a great danger that a lazy judge will not bother to read them, ever, but may just skim them haphazardly and ignorantly rule against them!
Perhaps drawing the other attorney into pretrial motions is your best hope of getting the judge to actually read your arguments, and think about them.
Perhaps, therefore, a logical strategy would be to wait to see if the other attorney does anything, and if not, to file your "Amended Response" one week before trial. Before that time, a judge probably won't be assigned to your case anyway.
The following are the legal arguments that support the above response. They are legally thorough, but written to be understandable to a layman. If you decide to have an appendix, these arguments would go there. If you face pretrial motions, you can draw upon these arguments for your response. If these arguments are not presented in writing before trial, they will need to be presented orally during trial.
You can tailor these arguments to fit your philosophies and the facts of your case. Omit the bracketed translations of legal terms, which are for your benefit.
"Legitimate objects of matrimony" defined; evidence of breakdown required by statutory and case law
In the 30 years since Iowa law has required that the court be "satisfied from the evidence presented that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved", (Iowa § 598.17), there has been no attempt to define the "legitimate objects of matrimony."
This is a serious omission, considering that:
(1)Iowa § 598.17 explicitly says the court must be "satisfied from the evidence presented" that there has been a breakdown, and
(2) it implicitly says this evidence must be of such quality that in many cases the petitioner will be incapable of presenting sufficient evidence, in which case the divorce will only be granted if the respondent can complete the grim picture; and
(3) Craft v. Craft, 226 N.W.2d Iowa 1975 at 6, 9, which has never been overturned or challenged, says "The statutory requirement for dissolution of marriage, that marriage breakdown be established by competent evidence, is mandatory, and may not be satisfied by parties' stipulation [a written mutual agreement] to that effect." In other words, even when both parties agree in writing that the marriage has hopelessly broken down, the court can't just automatically give them a divorce without additional evidence of the breakdown!
Craft continues: "Respondent's first assignment [the first argument of the response] asserts a failure to comply with 598.7 and 598.8, The Code. 598.7 provides: 'The petition must be verified by the petitioner and its allegations established by competent evidence.' Section 598.8 provides: 'Hearings for dissolution of marriage shall be held in open court upon the oral testimony of witnesses...
"'Both parties appeared at trial and testified. Neither testified as to the grounds for dissolution...
"'The provisions of 598.7 and 598.8 are mandatory. The parties are not entitled to dissolution merely by stipulating for it. The rule is of ancient origin and has obtained in Iowa from earliest times. In Lyster v. Lyster, 1 Iowa 130 (1855) we considered a divorce sought on a ground (authorized by the 1851 Code) that the parties "cannot live together in peace and happiness." We held:
"'***The law requires that the court shall be satisfied; that it "shall be made fully apparent to the court, that the parties cannot live together in peace and happiness", and not that the parties shall be satisfied. It is not alone the immediate parties to this proceeding that are affected, but in most instances, the care and disposition of CHILDREN AND PROPERTY; and, in all cases, the proper MORAL ORDER AND PEACE OF SOCIETY will and must arise.***' 1 Iowa at page 131
"The principle and the reasons for it persist. The legitimate interests of the State in marriage termination were recently recognized in Sosna v. Iowa, ...95 S.Ct. 553, 42 L.Ed.2d 532 (decided January 14, 1975). Respondent is right in arguing the requirements of 598.7 and 598.8 cannot be obviated [satisfied] by stipulation."
Unfortunately the great truths of this case were trivialized by accepting a petitioner's oral statement about the marriage breakdown, unsupported by any evidence, and with no rebuttal allowed the respondent, as "satisfactory evidence". But perhaps even that tragic failure is understandable, in light of the confusion in the wake of the lack of any definition of "legitimate objects of matrimony".
However, the seeds of such a definition are found in the Craft case: (1) Children, (2) Property, and (3) the Proper moral order and peace of society. These are, truly, Legitimate Objects of Matrimony, and there is at least a fourth.
What object (purpose; end; goal. In grammar, a substantive that receives the action of the verb) could be more legitimate (1. Born of legally married parents. 2. Sanctioned by law or custom) than the children? Generally speaking, divorce almost never serves the best interests of children:
TESTIMONY OF COURTS
"The record reveals that Michelle feels good about herself, although she exhibits signs indicative of a child who is coping with the very real pain of a divorce situation....Certain problems obviously follow a child after a dissolution. Here is a child who loves both of her parents and is going to miss the parent she is not with....we recognize it is normal for a child to feel remorse after a dissolution and exhibit signs of lonesomeness for the absent parent." Buschmann, filed 11/20/1984. Decided in 1985.)
"(Expounds advantages of joint custody) Moreover, joint custody may mitigate the loss of security and feelings of rejection normally accompanying dissolution by approximating as closely as possible the former family relationship." Burham, 283 N.W.2d 269, 273.
"It is wrong to treat a parental custody decision as merely an adjudication of parental rights. Children are innocent victims of marital bankruptcy. Their welfare is paramount. Custodial claims of contending parents are subservient to the rights of their children to grow to maturity in a proper environment." Bowen, 219 N.W. 2d 683, 688.
"There is no real remedy for a broken home; it will almost certainly impose a heavy handicap on the children who will be affected, no matter with which parent they may reside. The sins of the father, or mother, which cause this condition are too frequently visited upon the children...problems arising from the inability or refusal of parents to live in harmony and to meet the requirements of the marriage relation...injury to the small and innocent people involved through no fault of their own...The best efforts of the courts are too often insufficient to exorcise the evil arising from broken homes." Harwell, 112 N.W.2d 868, 873.
TESTIMONY OF RESEARCHERS
Generally speaking, divorce hurts children, according to researchers as well as according to the Appellate Courts:
"Hardly a child of divorce we came to know did not cling to the fantasy of a magical reconciliation between his parents (5 years after the divorce!)" "California's Children of Divorce", by Wallerstein and Kelly, Psychology Today, January 1980.
"Shortly after divorce, some mothers and sons swirled into a maelstrom of conflict. Many little boys grew more negative, aggressive, and disobedient. Mothers responded by using more commands, levying more punishments, and offering very little encouragement Moreover, their discipline was often inconsistent, perhaps reflecting their preoccupation with their own stresses and frustrations. Not surprisingly, mothers described life with their young sons as 'a fight to the finish...a battle of survival.' It was like 'the old "chinese water torture" or "getting bitten to death by ducks".'" Divorce -- A Summary of Research About the Effects of Divorce on Families, by Robert B. McCall, Ph.D. and S. Holly Stocking, The Boys Town Center, Boys Town, Nebraska (1980).
"Multiple marriages also aggravate sibling conflicts. 'We are entering a period of inter-family feuds the likes of which you have never seen,' said William Selsberg, a lawyer....'How do you equitably settle the claims of the children from the different marriages...?'" "Marriage is now a miniseries...", by Andree Brooks, Des Moines Register, (March 2, 1985) from the New York Times.
"Teachers...rated the children of divorce as more restless, obstinate, disruptive, and impulsive than other children. (Dr. E. Mavis Hetherington, at the University of Virginia) found similar disruptive effects...of divorce -- especially on young boys who were more antisocial, less self-controlled, and more rebellious against adult authority....In the first year following divorce, boys also were more hostile, both physically and verbally, and less imaginative and cooperative in their play with toys and other children. They were less attentive and displayed more pouting, clinging, scowling, crying, whining, and complaining than preschool boys from two-parent families. (Other children) pretend the child doesn't exist, even when he tries to join the group, or they simply tell him to get lost. 'It's a sad thing to watch.'" A Summary of Research... op. cit.
"I see children not being able to concentrate, a sense that nothing lasts and A LOSS OF FAITH IN RELATIONSHIPS....They never develop trust or long term values. They become self-centered and cynical." "Marriage is now a miniseries...", op cit.
"Anger played a significant role in the psychological life of 23 percent [of children of divorce. It took forms including] explosive outbursts of temper and delinquent behavior, such as drug involvement and stealing." "California's Children of Divorce", op. cit.
"Daughters reared by divorced mothers tended to marry younger than girls from nuclear families. They also were more likely to be pregnant at the time of marriage, and to be less satisfied with their husbands and their sexual lives. And sons, as well as daughters, of divorced parents are more likely to divorce when they become married adults." A Summary of Research... op. cit.
"Father-hunger is a...disorder characterized by chronic insomnia and nightmares....I visited the child and his mother at home, and witnessed a night-terror episode. Forty-five minutes after he had gone to bed, the boy bounded into the living room dazed, and screaming 'Daddy, Daddy.' The mother tried to comfort her son, without effect.
The boy became aware of my presence, calmed down and clung to me. 'Daddy hurt, Daddy hurt,' he sobbed.
"'Who hurt Daddy?' I asked. 'A big animal. A big black animal.' We reassured the boy that this was a dream, that his Daddy was not hurt and would visit in two days. After more conversation, we put the boy to bed and he drifted into sleep. Bewildered by the situation, the mother was chagrined when I explained that this was her son's reaction to the absence of his father....With the mother's permission, the child visited the father more frequently....The boy's condition improved.
"STAYING TOGETHER FOR THE CHILDREN'S SAKE HAS BEEN DECRIED AS ONE OF THE WORST REASONS FOR PROLONGING A MARRIAGE, BUT WHEN DIVORCE THREATENS TO BREAK UP A SMALL BOY'S EMOTIONAL DEVELOPMENT, THE PARENTS MIGHT PUT ASIDE THEIR DIFFERENCES to provide the child with a crucial need -- a father. ...Couples might (at least) elect to separate at a less crucial stage of their child's development." "Another divorce trauma: Father-hunger" by Alfred A. Messer, Des Moines Register, reprinted from the Wall Street Journal (August 1, 1984) p. 1.
TESTIMONY OF IOWA LAW
Generally speaking, divorce hurts children, according to Iowa Law as well as researchers and Appellate courts:
"Iowa Code 598.1(6) Definitions. "Best interests of the child" includes, but is not limited to, the opportunity for maximum continuous physical and emotional contact possible, with both parents, unless direct physical or significant emotional harm to the child may result from this contact. Refusal by one parent to provide this opportunity without just cause shall be considered harmful to the best interest of the child." BURDEN OF PROOF
As a measure of the depth of respect for the importance of strong marriages to children, here is strong language which the House Judiciary Committee passed in 1996, though it is not yet law:
"598.1 LEGISLATIVE FINDINGS AND INTENT.
"The general assembly of the state of Iowa finds that the family is the unit of self-government best able to teach and practice the virtues that benefit not only the members of the family, but also all citizens of this state and of this country. The general assembly further finds that the institution of marriage embodies virtues which promote societal stability, including loyalty, commitment, trust, mutual support, faithfulness, self-sacrifice, adherence to duty, hope, and love. The general assembly also finds that the integrity and permanence of the marriage relationship is of vital importance to the welfare of society and of the people of the state of Iowa.
"The general assembly finds that when the state has failed to apply and enforce the provisions of civil contracts of marriage vast social, financial, and human costs have been imposed upon all Iowans. Crime and disrespect for authority derive in large part from the breakdown of authority within the family unit which, in turn, is largely a result of divorce and births outside of wedlock and the separation of parents from their children. Police, courts, schools, social agencies, state government, and private volunteer groups can provide, at best, only secondary assistance in child rearing r the regulation of human relationships and then only at increasingly prohibitive costs. Furthermore, social science demonstrates that divorced spouses and their children suffer severe declines in financial status and are much more susceptible to depression and other mental health problems than are persons involved in stable marriages. Additionally, incidents of child abuse occur in disproportionately great numbers at the hands of individuals living in households in which the individuals are not the parents of the abused child.
"Consequently, the general assembly concludes that divorce should be discouraged and that the institution of marriage requires strengthening, by enforcement of its obligations, through legal recognition of the permanence of the relationship, and by application of sanctions against those who would violate the contract of marriage. The general assembly further concludes that, as a matter of state policy and legal presumption, the laws of this state should be construed to strongly support the formation, existence, continuation, and permanency of marital relationships, and should be construed to discourage the dissolution, infringement, or inhibition of marriages.
"It is therefore the intent of the general assembly that this chapter be construed to effectuate the following purposes:
"1. To promote the best interests of children by assuring that as many children as possible are under the direct care, parental supervision, and custody of both their mothers and their fathers.
"2. To promote the best interests of Iowa taxpayers and citizens, by reducing the burden of social and human costs generated by the breaking up of families and homes which results from no-fault divorce.
"3. To promote the best interests of men and women, both as individuals owing legal and moral duties to one another as participants in the institution of marriage, by furthering policies which support the parties'' marital vows, mental and financial well-being, and social responsibility." (Page 5, line 9 through page 6, line 28, HF 2473, which may be passed this year.)
Specifically speaking, in this case, divorce will not serve the best interests of our child, as testimony at trial will show. But in view of the authorities cited above, the burden of proof will be on the petitioner to prove that, in this case, the best interests of our child, the most "legitimate" of the objects of matrimony, have already been "destroyed", and would not in fact be destroyed by granting her petition.
Testimony of witnesses will show that any arguments they directly observed in our marriage were no more "destructive" or "mentally abusive" than arguments they typically observe either in their own good marriages, or in other marriages that are still solid and beneficial to all parties. Testimony will show there has been no domestic violence, no abandonment, no drunkenness, no drug use, no gambling, no spending sprees, no adultery, no sodomy.
The record shows there have been no allegations of child abuse as of this filing. The court knows false child abuse allegations are a problem in divorce cases, being a ploy recommended by scurrilous attorneys to weight child custody awards in favor of the spouse levelling the charges. The court should take judicial notice of the fact that no child abuse allegations have yet been lodged, there having in fact been no child abuse; and should they be lodged later, the court should be wary of any "evidence" of abuse that is gathered by "junk science" as defined by William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc., 113 Sup. Ct. 2786:
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green, at 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K.Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability") [The article cited gives Psychotherapy as the premier example of a discipline which fails these criteria.]
Let me clarify that I have far more trust in my wife, under normal circumstances, than to suspect she might falsely accuse me of child abuse. But experience has shown that the same trust may not be with confidence universally lodged in attorneys, and that something wicked happens to good marriages while they are under the poison of the influence of divorce attorneys. I should also clarify that my dealing with the possibility of false accusations at this point, before there has been any hint of an allegation, is not because I consider it likely that this will be a problem, but only because even the smallest chance that the poison of the divorce process will provoke my faithful wife to participate in such a thing justifies taking the preventative step of getting on the record, as soon as possible, what the U.S. Supreme Court says about junk science, in the hope that will discourage the use of such folly to destroy the Legitimate Objects of Matrimony in our family.
DIVORCE IS DANGEROUS TO CHILDREN.
"Endangerment" is a concept well defined in environmental law. Children need its protection too. Children are as important as rivers. Maybe more.
The authorities above list many terrible dangers to which my child will be exposed if the court grants petitioner's petition, thus destroying the Legitimate Objects of Matrimony. The resulting tragedy may be put in further perspective by reflecting on how the effects of divorce mitigate all the child welfare reforms for which our forbears have fought over the past century.
Our forbears fought to guarantee education for all children; but educational opportunities, from camps and private schools to computers, music teachers, and tutors, are less available to children of divorce, because of the inevitable damage to the family finances.
Our forbears fought to remove children from parents who chain them in attics, and who physically and sexually abuse them; yet the discipline problems and love lost between stepparents and stepchildren frequently result in children locked in bedrooms for extended periods; and the halving of at-home caregivers leaves "latchkey children" tragically "home alone" for long hours. There is greater risk of physical and sexual abuse with step-parents than natural parents, and there is 8.4 times more abuse in foster homes than in natural homes. (Des Moines Register, July 25, 1989 "Children in Foster Care at Greater Risk of Abuse -- Study")
Our forbears fought to rescue children living on streets, barely fed or clothed, as a result of utter poverty; yet post-divorce poverty and friction increase the degree of poorly nourished and clothed children who walk the streets at night, looking for love.
"The most common factors concerning families of reported child abuse and neglect in 1977 (defined as including sexual abuse or exploitation) were broken families, family disputes...." "Increased Federal Efforts Needed to Better Identify, Treat, and Prevent Child Abuse and Neglect", a Report to the Congress of the United States by the Comptroller General, HRD-80- 66, (April 29, 1980)
"With these broad age and family size factors accounted for, it is necessary to determine the particular stresses which are associated with child abuse. The answer to this seems to lie in the family's circumstances. In both of the studies discussed here there was an over-representation of single-parent families and almost all of these were fatherless families." "Families who Injure Their Children", by Clare Hyman, a chapter of Psychological Approaches to Child Abuse, ed. Frude, pub. Littlefield -- Totowa NJ (1981), p. 101.
Our forbears fought against child slavery, which uprooted children from their parents and shipped them off to relatively cruel guardians; but the evils of divorce commonly set forces in motion that end up shipping a child off to another home, if not an institution, contrary to the will of both child and parents.
We hope none of these terrible things will happen to our child. But there can be little argument that, regardless of what we hope, divorce endangers children.
"The meaning of 'endanger' is, I hope, beyond dispute. Case law and dictionary definition agree that endanger means something less than actual harm. When one is endangered, harm is threatened; no actual injury need ever occur. 'Endanger' is not a standard prone to factual proof alone. Danger is a risk, and so can only be decided by assessment of risks. (A) risk may be assessed from suspected, but not completely substantiated, relationships between facts, FROM TRENDS AMONG FACTS, from theoretic projections from imperfect data, or from probative preliminary data not yet certifiable as 'fact'." Ethyl Corp. v. EPA, No. 73-2205 E.C.Cir., Jan 28, 1975.
It is an entrenched principle in Iowa divorce courts that the physical care of the child is to be determined only with regard to the best interests of the child, and not with any regard to the wishes or interests of the parents. So why shouldn't "the best interests of the child", which Iowa § 598.1(6) defines as "the opportunity for maximum continuous physical and emotional contact possible with both parents", be a factor in determining whether the "competent evidence" of a marriage breakdown required by Iowa § 598.7 has been satisfactorily provided?
Divorce, sought for no justifiable reason, is the ultimate child abuse.
The second Legitimate Object of Matrimony suggested by Craft (ibid) is the family "property", or finances. Bank records and expert testimony from financial counsellors will show these Legitimate Objects of Matrimony have not yet been destroyed, but they have been harmed by the separation thus far, and will be seriously threatened by a divorce.
Some authorities above have alluded to the financial harm to families done by divorce, since family financial collapse hurts the children of those families. This connection was brought out in the "Children In Jeopardy" Governor's conference November 28, 1984 (p. 42-46):
"...several facts about poverty in Polk County....Many families run out of food before the end of the month. Many families are forced to relocate to smaller living quarters. Many do not seek medical attention until the situation reaches a crisis. Many families are dysfunctional as evidenced by family breakups, violence, suicide, increased jailings, teenage pregnancies and a higher dropout rate.
"Impoverished children live in an environment that is completely foreign to the rest of society....Reality for impoverished children is a stressful combination of environmental factors that include no privacy, high divorce rates and poor health. Because poor people move an average of once every three years, poor children have few good role models in their communities and few lasting relationships.
"Poverty is more than an economic and physical state for children. It affects self-esteem and predisposes many children to lasting poverty. Educational...escape routes are closed for most poor children by the third grade. By that time, many perceive themselves as dumb, as failures. Poor quality schools and language handicaps combined with low self esteem give the poor a sense of futility. This sense of fatalism makes poverty a self-fulfilling prophecy.
"Dr. Long believes there is a situational or emotional response to poverty....Poor children have two...emotional responses to poverty -- an aggressive...or a dependent response. Both of these personality types develop and are reinforced by self image, incidents...and others' responses to their behavior. Dr. Long described this phenomenon as the child's conflict cycle.
"Aggressive children do not trust others, but believe they must act aggressively to survive....When the child encounters a situation in which he feels an aggressive action is appropriate he acts...in an aggressive manner and consequently receives an aggressive response from peers or adults (reinforcing aggressive tendencies).
"Dependent children react in a manner exactly opposite to aggressive children. These children are withdrawn, fearful and passive. Passive children encounter situations with fearful preconceptions. Since they are afraid of taking chances they are passive and alienate themselves from people. This alienation is met with alienation and passivity from others."
MORAL ORDER AND PEACE OF SOCIETY
The third Legitimate Object of Matrimony suggested by Craft is the "proper moral order and peace of society". Is there a state interest in encouraging the preservation of marriages and discouraging divorce? When Vice President Dan Quayle, in 1992, criticized Murphy Brown for idealizing single parenthood, which he said was to blame for many of government's problems today, liberals went on a feeding frenzy, accusing him of being out of touch and out of date. But by 1994, even Democratic candidates and cabinet members were agreeing that two-parent homes were beneficial to America, and within a few days of the 1994 election, the last holdout, President Clinton, finally agreed that America would be better off with more two-parent families! And of course the voters of 1994 overwhelmingly threw in their hats with the candidates who not only promoted "family values", but who defined "family" as built around two heterosexual parents.
So it appears America is once again nearly unanimous in affirming America's state interest in encouraging marriage preservation and discouraging divorce.
The blight to America's economy and security, from the effects of divorce from AFDC payments to the Child Abuse Industry to juvenile delinquency to domestic violence to unemployment, is obvious and should not require establishment by argument or evidence.
But no further evidence of a state interest in children is necessary than a quick glance at the Iowa budget, which shows 80% of Iowa's budget is for children: 60% for education and 20% for the Department of Human Services, most of whose budget goes for AFDC or for child abuse, foster care and adoption. The evidence of the Iowa budget shows Iowa has declared a far greater interest in its children than in its courts! With such a priority of state interest on children, over and above every other state interest, the court need not even consider the impact of divorce on America's economy or security to evaluate whether America or Iowa has a state interest in preserving marriage! The court need look no farther than the danger to every child of divorce!
And yet, whether the court looks at the effect of divorce upon children, or upon the nation -- wherever the court looks, it will see a state interest in preserving marriage. The court will serve this state interest by not granting divorce when the Legitimate Objects of Matrimony are still strong, and where a few words of common sense and firmness from the court will preserve the marriage, since the divorce is sought for reasons which are immature, premature, and/or transient.
THE PSYCHOLOGICAL HEALTH OF THE PETITIONER
A fourth Legitimate Object of Matrimony which I propose, in addition to the Legitimate Objects suggested by Craft, is the mental health and happiness of each family member.
It is not necessary here to repeat the evidence above that divorce endangers the mental health and happiness of children. Nor is it necessary to attempt to prove the endangerment to my own: that being obvious to the court from the passion of my response.
But the court may not realize, unless it is explained here, that petitioner's action in filing this petition is actually contrary to petitioner's own religious beliefs that the petition may hold eternal consequences for him/her, and may actually, if not prevented, cause petitioner psychological harm beyond the power of any psychiatrist to heal. Not to mention the possibility of eternal risk, which all who are wise will avoid.
Petitioner has not thought through this action. The petition is inconsistent with the petitioner's expressed love for our child(ren) and expressed commitment to our child's interests. It is inconsistent with the petitioner's appreciation of the need for sound finances. There is no benefit of divorce that can reasonably compensate the petitioner for the very real losses the petitioner will sustain.
But the greatest danger to petitioner's mental health is petitioner's own desire to obey every word of the Holy Bible, which petitioner believes is the Word of God -- despite the fact the Bible, as traditionally interpreted, provides only two justifications for divorce, abandonment and adultery, neither of which have occurred in this case.
"And unto the married I command, yet not I, but the Lord, Let not the wife depart from her husband: But and if she depart, let her remain unmarried, or be reconciled to her husband: and let not the husband put away his wife." 1 Corinthians 7:10-11
"It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement: But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery." Matthew 5:31-32
"Have ye not read, that he which made them at the beginning made them male and female, and said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder." Matthew 19:4-6
There has been no adultery in this marriage. Matthew 5:28 says a man is guilty of adultery even if all he does is look upon another woman with longing. Jesus must have intended this statement to convict men of the need to bridle even their thoughts; He could not have intended that verse as an excuse for women to divorce their husbands, or surely every woman would have an excuse to divorce their husbands, depending on how deeply you probe into a man's subliminal thoughts. Surely Jesus intends Matthew 5:28 as a warning to us all to purify our thoughts as well as actions, but He intends "saving for the cause of fornication" to be interpreted as physical fornication, for purposes of justifying divorce.
But even if mere desire for adultery were grounds for the other spouse to seek divorce, there would be no grounds for petitioner to seek divorce, even on this ground. Because I have no desire for adultery. My eyes are only for my petitioner! I cannot, of course, vouch for my subconscious mind, since by definition it is the part of my mind of whose contents I am not conscious. I admit that, from it, many temptations bubble up. But as soon as I become conscious of them, I can affirm for this court, and for my petitioner, that I habitually beat them back down into submission to God's Word, insofar as God's Grace gives me the light to understand it, leaving no conscious desires in my heart to mitigate my faithfulness to my beautiful petitioner.
Neither has there been abandonment. We are now separated, but it was only at my precious petitioner's insistence, and I have not stopped praying for the day I can return home!
My petitioner has been born again, in accordance with John 3:3-7, and shares my reverence for Scripture, the written record of God's laws, which both petitioner and myself believe will one day judge Iowa law. My petitioner shares my fear, not of "them that kill the body, and after that have no more that they can do", but of the True Judge, "which after he hath killed hath power to cast into hell"! Luke 12:4-5
A case can be made for other Biblical grounds for divorce, but those grounds do not exist in our case either.
Exodus 21:26-27 "And if a man smite the eye of his servant, or the eye of his maid, that it perish; he shall let him go free for his eye's sake. And if he smite out his manservant's tooth, or his maidservant's tooth; he shall let him go free for his tooth's sake."
Verse 7 shows that "maid", "maidservant", and "wife" are apparently close synonyms, if not interchangeable. So infliction of permanent injury, to an extent that would leave a person classified as "crippled", was clear grounds for divorce. (Loss of an adult tooth in those days was a permanent and serious injury.)
But in our marriage there has been no domestic violence, and certainly none causing any permanent or even serious injury.
"Even so it is not the will of your Father which is in heaven, that one of these little ones should perish. Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican." Matthew 18:17
If the parties are married, does Jesus mean this process to provide grounds for divorce? Did Jesus intend married couples to have access to this relief? 1 Corinthians 7:12-15 tells us to stay married to a spouse who "believeth not", but it would seem difficult for husbands to love (in the way that Christ loves the church) or wives to obey someone whom they are told to treat as "an heathen man and a publican"!
But in our marriage there has not been such refusal to listen to reason that either of us is so disrespectful of authority that we would flout the consensus of the community regarding any problem between us. That is why I am confident that if the Court can agree in counseling against divorce, rather than resigning itself to the inevitibility of divorce, my husband/wife will respect and heed that, and our marriage will be saved.
Exodus 21:10-11 "If he take him another wife; her food, her raiment, and her duty of marriage, [sexual relations, so that she may have a son to share his inheritance] shall he not diminish. And if he do not these three unto her, then shall she go out free without money."
The latter of these three is specifically reinforced, and the former two implied, by 1 Corinthians 7:3
"Let the husband render unto the wife due benevolence [her due]: and likewise also the wife unto the husband." (See the context for specific reference to sexual relations.)
We know that being married to an infidel is not Biblical grounds for divorce.
1 Corinthians 7:13 "And the woman which hath an husband that believeth not, and if he be pleased to dwell with her, let her not leave him."
But we know from 1 Timothy 5:8 that "if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel"! So maybe that is a ground of divorce.
But there are no freeloaders in our marriage.
(When the petitioner is the husband, and if the facts fit: Ironically, it is the petitioner who is out of work at the moment, but he has worked hard to find work. What more can anyone ask? Ironically, his shame about not having a job seems to be contributing to some sort of feeling of not deserving my love, of not wanting to live off "my charity". But that is not my feeling! I don't know how much love any of us "deserves", but I think he "deserves" my love at least as much as I deserve God's love.
And as for his contribution to our finances, I need him back! We will be hurting until he gets work, but we are crying while he is gone, and we will be crippled if he leaves altogether! The legal fees sure haven't helped our family finances, and my work caring for our children has been greatly increased, both by having less help caring for them, and by their needs having greatly increased as a result of the turmoil and confusion they are suffering because of his absence!
The evidence will fail to reveal any good reason for this divorce. This divorce doesn't make sense. There is plenty of potential in this marriage for a long, happy love affair, and the petitioner would not likely prove an exception to the "73% of women...and 65% of men...who think the divorce might have been a 'mistake' and that they should have tried harder to work things out" (surveyed one year after the divorce). Divorce -- A Summary of Research... ibid.
RULING OUT OTHER "LEGITIMATE OBJECTS"
What else could "The Legitimate Objects of Matrimony" mean?
Feelings? Feelings change. They are no foundation for a lifetime. The evidence will show that the feelings of my petitioner have quite recently been just as positive as this suit indicates they are now negative. If the petition is denied, there is plenty of reason for hope that the cycle of feelings will once again display upward swings.
How about sexual relations? If sexual relations have ceased, is that grounds for divorce? Are those the Legitimate Objects of Matrimony, which when destroyed leave nothing of the marriage?
Such an idea may be found trumpeted in Playboy Magazine, but nowhere else. It is not to be found in case law, common sense, or folklore, which says sexual activity typically declines after the first year, even as the marriage bonds grow stronger and stronger. Sex often ceases altogether in the twilight years, when the marriage bonds are typically at their brightest!
It is not to be found in Scripture, which allows for temporary abstinence during marriage, although recommending against it; 1 Corinthians 7:10-11, already quoted.
It is not to be found in the most basic dogma of today's divorce courts, which decide other marital issues based on "the best interests of the child", not on "the sex lives of the parents".
I bring up this subject only to be thorough in eliminating frivolous claims to "The Legitimate Objects of Matrimony". Actually it doesn't even apply in this case, because sexual activity between myself and my wonderful petitioner have not altogether ceased.
Is "love" a Legitimate Object of Matrimony? When love "dies", was it love? Can love die? Or are we back to feelings? Infatuation? Genuine love is not a thermometer that goes up or down with the health of a marriage. It is a heater you insert in the marriage, and if the temperature drops you repair the heater, not the marriage! Love is a duty laid before us, towards every human being, even our enemies! It's not something God only asks of us when we are in the mood! It's something required even when it costs us dearly! In fact, God's definition of "great love" is the willingness to lay down your life.
Being loved may be restful, but loving feels like happiness. It is happiness. It's also work. It requires commitment.
Are "good vibes" a Legitimate Object of Matrimony? Are arguments a legitimate reason to grant divorce? If the absence of controversy were the primary yardstick of fulfillment in human relationships, WHY DID YOU DECIDE TO BE A JUDGE?
This court cannot rationally order divorce for the sake of shielding our child from arguments, unless it is prepared to determine which parent's imperfect relationship skills are the greater CAUSE of those arguments (determined by examining the whole range of the interparental relationship, not excluding treatment of the marriage bonds) so that it will not, in its award of physical custody, subject our child to that mental abuse, then undiluted by the other parent's loving presence! But the testimony will show the family atmosphere did not thicken until the cloud of legal termination of the family bonds entered it.
The truth is, as Democratic Presidential Candidate Rev. Jesse Jackson explained December 3, 1987 when his attempts to influence the Chicago mayoral race resulted in failure, riots, and charges that he was really running for mayor in case he didn't make president: "No pain, no gain."
The truth is, as Syracuse University philosophy instructor Michael Novak explained in the March, 1978 Reader's Digest,
"Marriage does impose grueling, baffling, frustrating responsibilities....One tries instead to live as angels once were believed to live -- soaring, free, unencumbered.
"People say of marriage that it is boring, when what they mean is that it terrifies them: too many and too deep are its searing revelations, its angers, its rages, its hates, and its loves. they say of marriage that it is deadening, when what they mean is that it drives us beyond adolescent fantasies and romantic dreams. They say of children that they are piranhas, brats, snots, when what they mean is that the (effect) of parents (on) the future of their children is now known with greater clarity and exactitude than ever before.
"Being married and having children has impressed on my mind certain lessons, and most of what I am forced to learn about myself is not pleasant. The quantity of sheer impenetrable selfishness in the human breast (in my breast) is a never-failing source of wonderment. I do not want to be disturbed, challenged, troubled. Huge regions of myself belong only to me. Seeing myself through the unblinking eyes of an intelligent, honest spouse is humiliating. Trying to act fairly to children, each of whom is temperamentally different from myself and from each other, is baffling. My family bonds hold me back from many opportunities. And yet these bonds are, I know, my liberation. They force me to be a different sort of human being in a way I want and need."
ADMISSIBILITY OF EVIDENCE
The parties to this case deserve better than a perfunctory consideration of the requirements of Iowa § 598.17. The petitioner and respondent have suffered great expense, borrowed against our child's future, and our system of justice has taken great pains, to assemble men of wisdom, and to ask wise men to be "satisfied from the evidence presented" whether this marriage should in fact be dissolved.
But since Iowa courts are not accustomed to considering evidence as required by Iowa § 598.17, and since the Court remembers that the purpose of the change to "no fault" divorce in 1970 was to end the days when petitioners had to prove their spouses were monsters before they were allowed to divorce, there may be confusion how it will be possible to admit evidence pertaining to § 598.17 without upending the entire legislative intent of that section and the rest of the "no fault divorce" code.
First let it be noted that § 598.17 is very definite about requiring evidence of a marriage breakdown before a divorce can be granted. And where, in any other court in America besides a divorce court, has it ever been heard that where one party may submit evidence, the other party may not contest it, cross examine it, and offer opposing evidence?!
There is no other possible construction [interpretation] of § 598.17 but that evidence of marriage breakdown was intended by the legislature to be challengeable. THE LEGISLATURE NEVER INTENDED THAT EVERY APPLICATION FOR DIVORCE BE AUTOMATICALLY GRANTED, regardless of whatever evidence a resisting spouse might wish to submit!
The ONLY change the legislature wished, according to this code section, was that courts no longer make a determination which spouse was the more "at fault". It's enough to know that the Legitimate Objects of Matrimony have been destroyed, without having to chronicle which monster destroyed them!
It may be that the legislature also believed some couples are simply "incompatible", without either spouse being "guilty" of anything. The law doesn't say that, and I personally don't believe there are such couples; although I acknowledge there are spouses who mutually lack the mental self discipline (maturity) to accommodate one another. Unfortunately, easy divorce has taken the pressure off such spouses to grow up. Divorce is their easy way out of a situation that requires more maturity than they care to muster.
The legislature also made it possible for a spouse to get a divorce by testifying about his/her own faults, which have already, or is about to, destroy the Legitimate Objects of Matrimony, and their determination not to repent of them. That wasn't possible before 1970.
Of course, parental faults should affect the court's decision in awarding custody of the children: there is absolutely nothing in the Iowa Code to indicate that interparental "fault" should be inadmissible as evidence relating to parental commitment to the best interests of the child.
(This paragraph is for your information, not to be included in the appendix; although it may help you in court later:) In fact, Iowa courts have greatly erred in being satisfied to award custody to a parent who can provide the "mundane, routine daily needs of the child", a standard which doesn't even distinguish between the parents, since any parent can do that! Those are the needs of an animal, which any adolescent babysitter can tend to! That's like choosing a computer on the basis of which computer has a keyboard! They all have keyboards! That's like choosing a car on the basis of which one is the least bumpy when it's parked! When you want to choose the best parent, courts should look for intellectual, emotional, and moral qualities, and how they hold up under pressure. The much quoted Winter case of 1975 claims that courts care about moral, intellectual, educational, etc qualities in parents; but it trivializes these criteria to the extent that they gave custody to the mother, who was 7 months pregnant after a 7 year affair with a hired hand, because the court thought that immorality was "canceled out" by the father's "evasiveness" in court about his finances!
The foregoing discussion of legislative intent should not be taken as an implication that these are factors in the instant case [the case before you]. My sweet petitioner is not immature. He/she has not been unfaithful; nor is he/she guilty of any other "fault" capable of destroying the Legitimate Objects of Matrimony.
And if he/she were found guilty of something, he/she would not defiantly refuse to repent. My petitioner would not threaten to consciously disobey God or this court, because he/she will not. If this court does not grant this petition, my petitioner will be mine again, in heart as well as in body. Till death do us part! He/she will purify the love in his/her heart towards me, a concept that would horrify any infatuated adolescent but in fact that's how true love works: its foundation is commitment and faithfulness, over which blow the breezes of feelings and emotion.
And of course I will make it as pleasant for him/her as I can, by [men:] loving her as I love my own body, after the example of my Savior, [women: obeing him as I obey my Savior] as commanded in Ephesians 5:25-33, whether or not I feel like it. And although infatuated adolescents may cringe at this Scripture too, these verses are true in stating that my husband/wife is as my own body, and it is absolutely true that disciplining myself to love my spouse has never been any more unpleasant than disciplining myself to exercise my body, or eat healthy food for my body, etc. And it is just as true that if this court grants this petition, the effect on me will be that of having one of my ribs amputated.
No Iowa appellate court has ever challenged the principle, articulated in California, (McKim v. McKim (1972) 6 Cal 3d 673, 100 Cal Rptr 140, 493 P2d 868), that "evidence of specific acts of misconduct is improper and inadmissible, except where child custody is in issue and such evidence is relevant to that issue, OR AT THE HEARING WHERE IT IS DETERMINED BY THE COURT TO BE NECESSARY TO ESTABLISH THE EXISTENCE OF IRRECONCILABLE DIFFERENCES. The court noted that the basic substantive change in the law resulting from enactment of the dissolution of marriage statute was the elimination of fault or guilt as grounds for granting or denying divorce and for refusing alimony and making unequal divisions of community property." (As summarized in 55 ALR3d 606)
The second reason for hearing evidence of factors contributing to the marriage breakdown is to show that, by any reasonable definition of "the legitimate objects of matrimony", the "legitimate objects" of this union have not been "broken", but will BE broken if the court adds its weight at this time to the forces attacking this union.
California, (in McKim cited above), in defining their similar statute, (providing for dissolution of marriage upon a finding of irreconcilable differences which have caused an irremediable breakdown of the marriage), said that although the legislature "intended that as far as possible dissolution proceedings should be nonadversary, it did not intend that a dissolution of marriage could be obtained upon consent alone, or that findings of the existence of irremediable differences should be made perfunctorily."
The court noted that the legislature had rejected a proposal under which the court could have been required to dissolve a marriage upon a showing that the parties had taken certain procedural steps, and that a certain period of time had lapsed, the court pointing out that the public was interested in the marriage relation and the maintenance of its integrity, and that the law wisely required proof of the facts alleged as grounds for a dissolution.
Under the statute, the court emphasized, "the decision of whether the evidence advanced supports findings that irreconcilable differences do exist and that marriage has broken down irremediably and should be dissolved is to be made by the court, rather than the parties. By eliminating faults and wrongs as substantive grounds for dissolution, and by requiring the consideration of the marriage as a grounds for dissolution, and by requiring the consideration of the marriage as a whole and making the possibility of reconciliation the important issue, the court reasoned, the intent of the statute was to induce a conciliatory and less charged atmosphere which would facilitate resolution of the other issues and perhaps effect a reconciliation." (55 ALR3d 596 summary)
Do you see how much alike is this reasoning and the Craft reasoning above? And how alike California law and Iowa law are on these points?
That same California court denounced "the fallacy of an argument that the legislature, by enacting the dissolution of marriage law, had delegated the function of dissolving marriages either to any litigant who wants to have his or her marriage dissolved, or to the absolute discretion of the courts without any guidelines whatsoever."
This reasoning is like Craft v. Craft, 226 N.W.2d Iowa 1975 at 6, 9, which has never been overturned or challenged, which says "The statutory requirement for dissolution of marriage, that marriage breakdown be established by competent evidence, is mandatory, and may not be satisfied by parties' stipulation [a written mutual agreement] to that effect."
The court may have perceived that this response, though legal and lengthy, is written with the dual mission of a love letter to my wonderful petitioner. That established, please allow me to drop out of this impersonal third person monkey business and say a few concluding words in second person to my wonderful, beautiful/handsome wife/husband:
(You're on your own now. Go for it! Win her heart! You did it once. It should be second nature now. And after you succeed the second time, make it a habit! May the Lord protect your family from the courts!)
The Pros and Cons of Representing Yourself
Representing yourself: There is a saying, "He who is his own attorney, has a fool for a client", but that is a saying made up by and for lawyers. My experience is that there are pros and cons.
The advantages of an attorney:
* You don't have to do any work. You just sit and watch.
* Your case is less likely to be blindsided by some legal maneuver you never anticipated. (Although lawyers get snookered, too.)
* You don't have to muster the courage to stand up to people who hate you and are trying to defeat you, and who are speaking a language you barely understand, and whose logic sounds either perverted or so lofty as to be beyond your comprehension, and you are not sure which. (You need to prepare yourself for their twisted logic and strange rhetoric by reading several Supreme Court cases and looking up legal terms in Black's Law Dictionary. Even if you already are comfortable with courtroom rhetoric, you need to read divorce cases until you find a few which you can quote to show that in a case with facts like the facts in your case, the justices support what you are asking the judge to do.)
The advantages of defending yourself "pro se" (without an attorney):
* You will have thousands more dollars to spend on your children!
* Should your case benefit from a longer trial than usual, you will not have to give up because you ran out of money.
* By doing your own legal research, you are in a better position to recognize laws and precedents helpful to your case than an attorney, because an attorney does not know the facts of your case as well as you do. If you do not know how judges reason, or what they look for, you will not even know what facts are worth mentioning to your attorney. Attorneys do their best, in their limited time with you, to draw out of you the facts that will help in the courtroom, but long hours of your own legal research will inspire your memory cells to come forward with more useful information than an attorney can pull out of you in a couple of hours.
* The judge gets to know you, if you defend yourself. He gets to evaluate how you think. There is relatively little opportunity for this when you have a lawyer. If you have a lawyer, in case you didn't know it, you are not allowed to direct any of the questioning, or to make any points, other than what you have time to scribble out, or whisper, for your attorney to say.
* You can make a more convincing and passionate plea for reason, mercy, justice, and love, first person, than a lawyer can, third person, who is understood to be saying what he is saying, not because he believes it, but because he is paid to win.
* If you have actually read the 20 pages of the Iowa divorce and custody law, and the 50 or so pages of the Rules of Civil Procedure, and a couple of dozen Supreme Court cases, and have thought how to apply them to your case, you are likely to think of procedural tricks which might not ordinarily occur to an attorney -- sometimes because he has forgotten them, if he doesn't specialize in divorce, but other times because they just take more time and money, and aren't sure fire effective enough for most clients to want to pay for them. But when they cost you nothing, you can actually do more, procedurally, than an attorney.
If you decide to be brave, and do it yourself, it would be helpful to have a paralegal, or a nonprofessional who is familiar with court procedure, who will sit with you during trial to advise you. The judge will not allow him to speak out loud, but he can whisper advice to you or pass notes to you. You will still be the one to do all your own arguing and questioning, but help like that can reduce the danger of being blindsided by some legal maneuver you did not anticipate.
In that situation a paralegal, or a friend, will usually not charge you at all, in order to eliminate the risk of liability for giving you bad advice.
Appendix B: If you miss the 10 day Response deadline
If you are late: If you miss this deadline, but are ready fairly soon afterwards, you can file it late and ask the judge to accept it as if it were on time. Or, before the 10 days, you can file a "motion for extension of time", asking additional time to respond. But the response is pretty easy, and shouldn't take a lot of time. Just don't put it off. If you don't respond at all, then when your spouse goes to court, your spouse will get whatever he or she asks, and you won't even necessarily be notified of the hearing until afterwards!
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