Dear akivah-ga;
Thank you for allowing me an opportunity to answer your interesting
question.
As a member of law enforcement, I have spent more than 20 years in
various courts testifying in a variety of cases, including criminal,
chancery, civil and divorce proceedings.
The issue of title seems to be fundamentally a matter of semantics,
but the root actually runs much deeper. In some courts, the term
“petitioner” is used in lieu of similar terms used by other courts in
other jurisdictions such as “appellant”, “complainant”, “plaintiff”,
“litigant”, “party of the first part”, “initiator”, “aggrieved spouse”
etc. These terms all have roughly the same meaning. One who implores
the court with a petition is sometimes (but not always) called a
petitioner simply by virtue of his/her initiation of the “action”
itself, and the title is in no way indicative of the potential for
his/her request for consideration to be denied.
The court in certain circumstances does indeed deny some divorces.
What the courts base their decision upon is a mere preponderance of
evidence - that is to say that in order to find that the grounds for
divorce are legitimate under the auspices of the law, the court must
first find that the circumstances in the complaint are factual, as
stated in the original complaint, and that those circumstances
reasonably fit the criteria set forth by law as grounds for legal
divorce. Proof, however, is not required. If the court finds that the
grounds for divorce are baseless, it will deny the divorce.
Consider this 1995 case in which a wife filed for divorce based on
irreconcilable differences. The husband filed his answer to the
complaint and also filed a counter-complaint alleging cruel in
inhumane treatment. The wife, in response to his counter-complaint,
amended her original complaint to also reflect cruel treatment. The
complaint “irreconcilable differences” (in California and in many
other states) is synonymous with “no-fault” divorce, meaning that
there is no real reason for the dissolution other than the fact that
two people are not compatible as mates. In order to be credible then,
the allegation of “irreconcilable differences” must pass a certain
legal muster (parties must have exhausted cooperative efforts to
reconcile, agree to disagree on certain issues, agree to spousal
and/or child support, property settlement, etc). In this case, the
court found that since other extraneous circumstances were predominant
factors in the separation, and which were conveniently omitted in the
original complaint filed by the wife, irreconcilable differences as
alleged in the original complaint did not exist and the petitions to
dissolve the marriage was subsequently denied to both of parties on
those grounds.
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
http://www.mslawyer.com/mssc/ctapp/970715/9501190.html
Here you can see an example of one state’s divorce criteria under
these circumstances:
TITLE 36 DOMESTIC RELATIONS
CHAPTER 4 DIVORCE AND ANNULMENT
http://www.state.tn.us/tccy/tnchild/36/36-4-103.htm
“(e) If there has been a contest or denial of the grounds of
irreconcilable differences, no divorce shall be granted on the grounds
of irreconcilable differences. However, a divorce may be granted on
the grounds of irreconcilable differences where there has been a
contest or denial, if a properly executed marital dissolution
agreement is presented to the court.”
Generally speaking, California petitioners are not routinely denied
their petitions for divorce unless the court finds that a petitioner
did not comply “with what the Court needs for the procedure to be
equitably completed”. That is, one must follow the rules, file the
petition correctly, and no other grounds, accusations or evidence
arises so as to complicate and impede the case.
CALIFORNIA DIVORCE
http://www.ktb.net/~davis/d2.htm
While a person who successfully divorces another would effectively be
a “divorcer”, I suppose, initiating the petition under that title, as
you suggested, would imply that whoever filed a petition is entitled
to a writ of divorce and would actually BE a divorcing party
regardless of the court’s opinion. Calling a petitioner a “divorcer”
also places the divorcee at a distinct disadvantage, as he/she is
entitled to be heard before the court rules on the matter. At the time
of the complaint, the respondent is justifiably no more a divorcee
than a petitioner is justifiably a divorcer. The impact here would be
akin to calling a defendant in a criminal case, “the convict”,
implying his guilt before he/she has an opportunity to a fair hearing
and trial. Since divorces are sometimes denied, “petitioner” is an
appropriate term in this case, as are the other terms I mentioned.
Also, in keeping with parliamentary rule (which dates back to rules
established by monarchies) one shows his/her regard for the high
office of a court of law by “petitioning” the court (sometimes called
“begging the court’s indulgence”) to “consider” the legality of a
complaint. This legalese is of great importance in establishing the
power of the court as an absolute authority over matters pertaining to
rules of law.
I hope you find that that my research exceeds your expectations. If
you have any questions about my research please post a clarification
request prior to rating the answer. I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga
INFORMATION SOURCES
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
http://www.mslawyer.com/mssc/ctapp/970715/9501190.html
DICTIONARY.COM
http://dictionary.reference.com/
Appellant http://dictionary.reference.com/search?q=appellant
Complainant http://dictionary.reference.com/search?q=complainant
Plaintiff http://dictionary.reference.com/search?q=plaintiff
Litigant http://dictionary.reference.com/search?q=litigant
Initiator http://dictionary.reference.com/search?q=initiator
LAW OFFICE OF W DOUGLAS MCKEAGUE
http://www.ocdivorcelaw.com/law.htm
CALIFORNIA DIVORCE
http://www.ktb.net/~davis/d2.htm
SEARCH STRATEGY
SEARCH ENGINE USED:
Google ://www.google.com
SEARCH TERMS USED:
CALIFORNIA DIVORCE
DIVORCE DENIED
IRRECONCILABLE DIFFERENCES DENIED
NO FAULT DIVORCE DENIED
DIFFERENCES “DIVORCE WAS DENIED”
DIFFERENCES “DENIED THE DIVORCE” |
Clarification of Answer by
tutuzdad-ga
on
26 Jun 2003 11:25 PDT
As an afterthought, I wanted to address your statement with regard to
irreconcilable differences, where you stated, “…1 instead of more than
1 is adequate…”
Where these differences are concerned, logically there CANNOT be only
one. The very term “irreconcilable differences” refers to two opposing
positions on a single subject. It is these differences that are
irreconcilable, not the subject of the conflict itself. So, as you can
see, where topics such a religion, politics, child-rearing, life
goals, conflicting careers, etc. are involved there are, at a minimum,
two sides and two schools of thought. If a couple cannot find an
agreeable approach to an issue and the conflict becomes so problematic
that they cannot resolve it, these have irreconcilable differences
(plural).
Also, with regard to your statement, “…these reason(s) seem not to be
irreconcilable in order to be adequate for a divorce (they are simply
preferences and not irreconcilable)…”
While it is true that a couple is at liberty to determine what
differences they have that prevent them from living together
harmoniously in marriage, they do have to convince the court through
sworn testimony or sworn affidavit that they have done everything
within their power to reconcile and were unable to do so. The court
accepts this affirmation as truth unless something or someone arises
to dispute their testimony. Technically, if one swears a falsehood to
the court, one would be subject to a criminal charge of perjury;
realistically however, if two people conspire to deceive the court and
obtain a divorce by affirming false testimony that they have
irreconcilable differences, little is to stop them from doing so and
getting away with it.
Regards;
Tutuzdad-ga
|
Request for Answer Clarification by
akivah-ga
on
26 Jun 2003 14:56 PDT
Thanks for your answer, it does add somewhat to what I already know on
this issue. I need an even more recent California precedent however,
because I have been told there is none and the one you gave me was
older and from a more conservative state, and therefore will do me
little good. A little background may help define my question and what
I already know or have been misinformed on:
As far as when (a) difference(s) exists it is always plural with 2
parties involved, I believe that you have confused the issue by saying
that 1 difference equals 2. Granted there are at least 2 opinions and
these are now plural, but as long as the issue is the same or
equivalent there is still only really 1 difference. In many issues
for example, there are even more than 2 opinions coming from only 2
parties and often some of these multiple opinions may be shared by the
parties--some being different and some being shared--this too is only
one difference, because it is a single issue on which a difference can
be ascertained from. If, however, there is more than one issue,
differences may then arise. Therefore one must be careful to
determine this possibility and separate the issues and determine any
difference for each issue.
As far irreconcilability goes--I believe only when an issue that
divides a party--because it is mutually exclusive/contradictory--can
irreconcilability then be achieved and determined. For example when
one party must not be married and the other must be married, and then
a couple has an irreconcilable difference. The normal solution in the
CA courts is then to grant the divorce after all the paperwork has
been acceptably filled out. It does not matter (unless you find at
least one recent case) if the other party objects to it or not.
In California there are only 2 counties that seem to have adopted any
semblance of court mandated marital reconciliation procedures. Glenn
and San Diego Counties have implemented a CA law that under the
circumstance when there is domestic violence and/or children involved
in the marriage, a court procedure is exercised to encourage the
couple's reconciliation with the legislature’s stated reason of a
benefit to them and society.
In Sacramento County for example, the Judges have decided not to vote
on enacting this law even though they are required to every January,
probably because it would cost too much to implement. When someone
points this out and it affects their case adversely, they are not even
able to change the venue of the proceedings to somewhere the courts
observe the law; because there is no precedent for such a venue
change.
Also "marriage" counseling is not necessary to establish that this
difference has been worked on and determined to be irreconcilable,
since under this circumstance the one that wants out is getting the
counseling for divorce, while the other wants to get real marriage
counseling. After the first session the counselor says that each
party has a different goal and so the counseling ends because they are
trained only for situations where both parties recognize the value of
marriage over divorce or vice a versa. (Currently, it is popular to
remain neutral on this in the psychology profession and not encourage
the patient one way or the other--though religious counselors still
try to encourage marriages). Therefore it only takes one difference
and as long as that 1 party fills out the paperwork correctly the
divorce is granted.
Further, while assumably at one time both individuals wanted to be
married; nothing is to stop one party from changing their mind because
they feel like it (or changing it back for that matter). This
preference is the single reason for such divorces and they happen all
the time. If, however, they happen to change their mind during the
divorce proceeding then the divorce can be stopped (if they elect
to)and this is the reason for trying to determine if the divorce
should happen because of this preference or not.
I maintain that since a dissolution is supposed to be a petition like
you seem to indicate (and not an automatic granting), and also that it
is to be based on irreconcilable differences; that the quantity and
the merits of the irreconcilability of these difference(s) need to be
thoroughly analyzed and then judged upon.
The procedure for this should place a court hearing on the merits of
the irreconcilable differences (if there are any) right after the
petition and response is made. If there are merits the procedure
should continue otherwise the petition should be denied. (Otherwise
the children and parents must go through a lot of unnecessary
trouble.)
In all the divorce cases I have heard about (thousands) there was no
determination of the irreconcilable differences made at any time.
After the response, there came a written disclosure of children and
assets, custody mediation, then a trial to implement or force an
agreement on the custody and the financial arrangements, and then the
divorce was granted. It was assumed that the party not wanting the
divorce did not have any rights to stop the procedure and they were
considered belligerent if they did not want to sign an agreement
mandating the divorce and it was ordered over that party's wishes
otherwise.
All the attorneys I have talked to seem to think that I am crazy
bringing this up and none want to represent me because of this. I
realize that you can not force someone to be your friend, but letting
someone get divorced seems to be a different matter—am I wrong?
|
Clarification of Answer by
tutuzdad-ga
on
26 Jun 2003 21:52 PDT
Dear akivah-ga;
I shall address each of your concerns separately in hopes of providing
a clarification:
As for the definition of “irreconcilable differences – I suppose if
one were to analyze this, it would be a half-empty cup to some and a
half-full cup to others. The bottom line is that it is the differences
of opinions that makes it plural and not the subject upon which they
disagree. These two beliefs (plural) are the conflicting positions
(plural) that cannot be reconciled into one agreeable or cooperative
course of action. One could accurately describe the conflict by
saying, “We do not agree on a subject” (singular), or one could just
as accurately say, “We have different views” (plural).
“As far (as) irreconcilability goes I believe only when an issue that
divides a party--because it is mutually exclusive/contradictory--can
irreconcilability then be achieved and determined." – I agree, and I
actually stated this point in my follow-up answer. It is true that
California courts routinely award a dissolution of marriage if one
spouse merely alleges irreconcilable differences and there is little
the other spouse can do to prevent it. This is not in dispute. The law
however dictates that the court does indeed have the responsibility
and the authority to determine if grounds for divorce exist. In fact,
the court is obligated under law to review these grounds to see if
they pass legal muster. Read the law closely:
“2311. Irreconcilable differences are those grounds which are
determined by the court to be substantial reasons for not continuing
the marriage and which make it appear that the marriage should be
dissolved.”
CALIFORNIA : FAMILY CODE: 2310-2313
http://www.divorcesource.com/CA/CODE/2310_2313.html
As you can clearly see, the word of law states that irreconcilable
differences are “determined by the court”. Now, how California courts
go about fulfilling this obligation is a different story. The
implication at least is that the court could, at its discretion, deny
the petition if it found that these differecnes did not exist. Of
course, it would have to LOOK at the first, which it obviously does
not do (contrary to how the law literally reads). The court, bound by
no specific criteria generally accepts the allegation of one spouse as
the truth – and for better or worse (no pun intended) THAT IS the
bitter truth. Is this right? Is this ethical? Maybe not, but this does
happen to be the accepted precedent. You obviously disagree with this
method, and frankly, (if this comforts you any) I for one support your
position wholeheartedly. Unfortunately it would probably take a number
of reluctant lawyers (as you have apparently already experienced) to
support you as well in getting this method changed and to bring
California courts into compliance with this abundantly forthright law,
as it was originally written and intended.
“In Sacramento County for example, the Judges have decided not to vote
on enacting this law even though they are required to every January,
probably because it would cost too much to implement. When someone
points this out and it affects their case adversely, they are not even
able to change the venue of the proceedings to somewhere the courts
observe the law; because there is no precedent for such a venue
change.”
This would probably be grounds for appeal or at minimum for a
complaint to the agency that oversees California’s Judiciary conduct,
but for the most part, I suspect that many people are just happy to
get it over with and are quite weary of litigation by the time it
reaches this point. Someone one said, “If you always do what you’ve
always done, you’ll always get what you’ve always gotten”. Unfair law
and practices are only changed when someone seeks to change them. It
may take a monumental effort on someone’s part, but it WILL take
someone to make the effort first.
“Also "marriage" counseling is not necessary to establish that this
difference has been worked on and determined to be irreconcilable…” –
Again, you are correct; this is not in dispute. As outlined above the
law clearly mandates that it is THE COURT that bears this
responsibility. In California, unfortunately, it is the way that the
court does it that is debatable. Did the original intent of the law
assume that courts would resort to taking one spouses word over that
of another without any evidence to support the allegations, or, for
that matter, or even if the petition is filed by mutual consent? In my
opinion, the answer is “no”. Is the court specifically precluded by
law from making its determination of irreconcilable differences simply
by taking one spouses word for it? Examining the way the law is
worded…apparently not.
“I maintain that since a dissolution is supposed to be a petition like
you seem to indicate (and not an automatic granting), and also that it
is to be based on irreconcilable differences; that the quantity and
the merits of the irreconcilability of these difference(s) need to be
thoroughly analyzed and then judged upon.”
“The procedure for this should place a court hearing on the merits of
the irreconcilable differences (if there are any) right after the
petition and response is made. If there are merits the procedure
should continue otherwise the petition should be denied. (Otherwise
the children and parents must go through a lot of unnecessary
trouble.)”
Clearly, you are correct in this assumption and for what its worth, I
support your position on the issue. The law, as written in CALIFORNIA:
FAMILY CODE: 2311, does indeed mandate this.
Here is an interesting article of others who feel the same way you do:
CALIFORNIA DIVORCE REFORM AFTER 25 YEARS
http://www.rmslaw.com/articles/art71.htm
(Contains quite a bit of history but toward the end you’ll see what I
mean)
It is suggested here that the court’s actions are the way they
presently are because “..the Act was passed at the behest of male
interest lobbying groups by a male-dominated legislature under the
guidance of a divorcing man…who had a personal interest in reducing
the negotiating power of married women.”. Now, however, the tables are
turned and equality is of paramount concern. This chauvinistic view
has obviously come back to haunt.
As you asserted, the court rarely if ever DENIES a petition for
divorce based on the fact that irreconcilable differences have not
been adequately established. What it can do, however, is deny certain
awards based on this failure to establish just cause. This is clearly
set forth in CALIFORNIA FAMILY CODE 4320-4324, which states, in part:
“4320. In ordering spousal support under this part, the court shall
consider all of the following circumstances:…
… (j) The balance of the hardships to each party…”
This is so written in order to compensate one spouse who is not in
mutual agreement to the petition for divorce. That is to say that if
one party divorces another against his or her will, there is little
he/she can do to stop it, but that doesn’t necessarily mean that a
“no-fault” divorce would be granted and each would walk away with
his/her own personal affects and nothing more. In this case, the
divorcing party would be bound to provide some support to the spouse
from whom he is separating as a means of compensation for the
hardships caused by the unwanted divorce.
AND -
“4323. (a) (1) Except as otherwise agreed to by the parties in
writing, there is a REBUTTABLE PRESUMPTION, AFFECTING THE BURDEN OF
PROOF, of decreased need for spousal support if the supported party is
cohabiting with a person of the opposite sex. Upon a determination
that circumstances have changed, the court may modify or terminate the
spousal support”
Again, here a “no-fault” divorce (one based solely upon irreconcilable
differences) can come into dispute. The divorce would likely be
granted but not without due compensation in light of the rebuttal from
the aggrieved spouse.
CALIFORNIA FAMILY CODE 4320-4324
http://www.divorcesource.com/CA/CODE/4320_4324.html
I hope this helps to clarify my position and research on this matter.
I wish you luck..
Regards;
Tutuzdad-ga
|
Request for Answer Clarification by
akivah-ga
on
27 Jun 2003 00:17 PDT
You seem to get my logic on the irreconcilable difference(s) yet you
stick to you old answer somewhat.
Let us make it simpler yet. Let us imagine an idea that has only 1
deviation from another idea. Let us assume that deviation encompasses
only 1 trait. Then there is only 1 difference in that trait between
the 2, right?
Also there is only 1 difference in the idea as a whole, right?
What then, if the deviation has more than 1 trait?
If one is looking at each trait separately then it appears that there
is more than 1 difference, however if you are looking at the idea only
then there is still only 1. One person can look 1 way and see many
differences and the other can look the other way and see only 1. Now
if the person could change that 1 idea and make it the same then he
has eliminated all of the differences so really there is only 1. 1
change required=1 real difference.
Let us say the actual difference is that one wants marriage and the
other does not. If either party changed their mind then that
difference would no longer exist and they would be reconciled, never
having more than 1 difference. Let us imagine being interviewed in
court all the while privy to the other side’s position. Whenever a
position was presented the second party agreed to the first's
position. If the first party then changed their position in an effort
to create a difference the other party would merely have to change
their mind to conform to it. The court thus then could never prove an
irreconcilable difference.
However, if the communication was not allowed all marriages would have
more than one irreconcilable difference and everyone would be
illegible for divorce. Therefore, if one spouse withholds
communication to the other then divorce illegibility is inevitable.
If there is a perceived significant gain, by divorcing, then a selfish
person is likely to divorce.
It seems that under these circumstances one could ask the opinions of
others who are close to the couple—such as friends, children, clergy,
colleagues etc. whether a marriage should continue or not and one may
get a more balanced opinion than relying exclusively on the
petitioner’s word like it is now done.
You seem to be inviting me to establish a precedent where there has
been none established before by prevailing on the courts requiring a
test of irreconcilability after the petition and responses are made.
How would one structure such a test giving the problem I pointed out
above?
The courts now use the second method, which always produces reasons
for a divorce; the first method will never produce reasons for a
divorce—thus what do you suggest—perhaps some sort of compatibility
test? Maybe if one could be invented it should be required before
marriage licenses are given as well.
Anyway in conclusion there seems to be no valid reason for the misuse
of the word petitioner, because there is not anyone willing to fight
the established precedent of not listening to the differences in
court. Does any one else have an opinion on this?
So your answer seems to be that petitioner is a historical term used
to lend an air of choice in granting or not granting a request to
dissolve a marriage by one party against the wishes of the other, when
in fact there is no choice and divorcer would be a more accurate term
as my question indicates.
Further, there are no recent CA precedents established to question
this reason of dissolution by irreconcilable differences even though
it seems to be (so far) inadequate for determining whether a marriage
should be dissolved or not.
This comes to the billion dollar question (after all divorce is a
multi-billion dollar industry): What right does our government have
in granting divorces (or marriages for that matter) if it can not
establish accurate criteria of qualifications for it?
I would like to have this area of law returned to religion, because at
least my religion has several thousands years of tested criteria both
for a good marriage and a good divorce and since I was married
religiously what business does our government have in regulating an
area that it has no or inadequate criteria for?
The recent history of divorce procedure seems more to me made by
selfish people more interested in a buck than a good marriage and this
has no gender boundaries (most legislators are lawyers and women are
becoming legislators and lawyers more and more). The real tragedy is
that it seems (statistics bear this out) that our children are
learning this system now in unprecedented numbers and percentages,
which does not bode well for that oldest of institutions, marriage.
|
Clarification of Answer by
tutuzdad-ga
on
27 Jun 2003 11:14 PDT
Dear akivah-ga:
No doubt such a conflict of ideology could accurately be called a
single conflict, if it is the conflict itself that we are discussing.
I maintain however that two opinions on a single issue is plural, thus
the common term, “irreconcilable differences”, that applies to such a
disagreement, and not “irreconcilable difference”. This of course, is
MY opinion, which is really small potatoes compared to the larger
issue. YOUR opinion also sounds like a valid explanation (even to me)
though I don’t subscribe to it. Of course, that doesn’t make either
opinion wrong by any stretch of the imagination. It may be that you
and I simply have “irreconcilable differences” when it comes to this
single issue – just as in a marriage, neither of us is wrong, yet we
cannot seem to agree. See what I mean?
My understanding is that your inquiry here is whether or not a couple
is eligible for divorce simply by virtue of the fact that they cannot
agree on one course of action related to a single subject (as is
normally practiced), as opposed to your understanding and
interpretation the law: which requires that they have irreparable
disagreements (plural) on multiple fronts (plural) – since the law
states “irreconcilable differences” (plural). As I understand it, you
assert that the law dictates that if a single disagreement is at issue
here, the litmus test to determine the minimal legal grounds of
divorce has not been met and therefore should not he awarded by the
court. IF the latter were the case then, all an opposing spouse would
have to do would be to “seemingly” disagree with their spouse’s
ideology on one or more other issues upon being interviewed by the
court in order to make themselves eligible for divorce.
Again, both opinions may be correct. Since it is a relatively simple
task for anyone to dispute the ideology of another it’s just as easy
for one to seemingly disagree with another on any number of issues
(even if they actually do agree) in order to give the impression that
the marriage is an abysmal failure. One spouse can easily say we have
“irreconcilable differences” and petition for divorce simply because
they have become enamored with someone other than their legal spouse
for that matter, when in fact, such is not the case, even on a single
issue, much less a number of issues. What then, would be gained by the
state by mandating that a couple disagree on a prescribed number of
issues before they are eligible for divorce? Obviously nothing.
YOUR STATEMENT: “You seem to be inviting me to establish a precedent
where there has been none established before by prevailing on the
courts requiring a test of irreconcilability after the petition and
responses are made. How would one structure such a test giving the
problem I pointed out above? The courts now use the second method,
which always produces reasons for a divorce; the first method will
never produce reasons for a divorce—thus what do you suggest—perhaps
some sort of compatibility test? Maybe if one could be invented it
should be required before marriage licenses are given as well.”
One guess is probably as good as another when talking about potential
solutions. It would be a trial and error process I suppose to see what
works and what does not, and of these solutions offer, which are
readily accepted by “the people” as a matter of legislation. If you
are seeking my personal input, it would seem that the covenant concept
is more binding than the vow concept. Those who have marriage
covenants agree to place themselves in a binding legal contract with
their spouse which requires them to undergo an arduous counseling
should divorce become an option. They are also precluded in some
instances from dissolving the marriage for long periods of time,
allowing for consideration, mediation and reflection that often
results in a change of heart.
As mentioned in the earlier article I offered for your perusal here:
http://www.rmslaw.com/articles/art71.htm , one person supported the
concept that any spouse who divorces another in an instance in which
the willing spouse is opposed to the divorce, in spite of the wiling
spouse’s protest, should be required to provide for the willing spouse
even in his absence. No doubt the idea here is that since the willing
spouse is being deprived of the marriage contract into which the two
of them entered into, the abandoning spouse should be penalized for
breaking said contract, thus creating a potential punitive threat
(perhaps even a substantial one) that would have to be considered by
anyone petitioning the court for divorce. This penalty might reduce
the number of divorces, but the down side is that it might also result
in an increased number of unhappy marriages, abusive situations and
unnecessarily detrimental environments for children.
YOUR STATEMENT: “So your answer seems to be that petitioner is a
historical term used to lend an air of choice in granting or not
granting a request to dissolve a marriage by one party against the
wishes of the other, when in fact there is no choice and divorcer
would be a more accurate term as my question indicates.”
You are right. This is indeed my answer. “Petitioner” is a historical
term for the person for the person filing the request. However, in an
accurate and grammatical and literal sense, as I mentioned, the court
cannot accurately call him a “divorcer” until the action to divorce is
set into motion. Therefore, while the requesting party may LEAVE THE
COURT a divorcer, he actually files his petition as, and COMES TO THE
COURT as a petitioner. Statistically, the supporting and conclusive
evidence is that all who come with their petitions will be satisfied
and that they ultimately will be a successful “divorcer” simply by
virtue of their request unless other circumstances prevent them from
it. On the other hand, some petitions are not awarded for other
unrelated reasons (death, change of heart, failure to pay, etc)
meaning that in all cases, the petitioner does not become a divorcer
until such an action is ratified and finalized by a court of law.
YOUR ADDITIONAL QUESTION: “What right does our government have in
granting divorces (or marriages for that matter) if it can not
establish accurate criteria of qualifications for it?”
Good question. You might consider posting that as a separate question
(which it is) and getting some researcher input on it. Much could be
said here, and the same goes for the adoption “industry”, the
funeral/death “industry”, foster care “industry” and many more.
YOUR ADDITIONAL QUESTION: “I would like to have this area of law
returned to religion, because at least my religion has several
thousands years of tested criteria both for a good marriage and a good
divorce and since I was married religiously what business does our
government have in regulating an area that it has no or inadequate
criteria for?”
Another great question that you should post for input from other
researchers. If it is OPINION you are seeking about this particular
topic, I’ll offer mine briefly. My personal opinion, unrelated to this
forum or it’s views of course, is that a spiritual contract made
within the doctrine of one’s religious beliefs should only be put
asunder by that religious authority. Again, in my opinion, the state
can no more nullify one’s marriage any more than it can determine who
goes to heaven or hell. Once more, in my opinion, there is a great
disparity in the concepts of “separation of church and state” vs.
“separation of state and church”. One excellent example of this in the
US is the curious practice of holding state sanctioned political
election polling in religious churches, synagogues and temples but the
federal law prohibits students from praying in their own state run
schools. This is likely the type of emotionally charged rant you will
get should you choose to post this very deep and interesting quandary
in the forum as a separate question.
YOUR STATEMENT: “The recent history of divorce procedure seems more to
me made by selfish people more interested in a buck than a good
marriage and this has no gender boundaries (most legislators are
lawyers and women are becoming legislators and lawyers more and more).
The real tragedy is that it seems (statistics bear this out) that our
children are learning this system now in unprecedented numbers and
percentages, which does not bode well for that oldest of institutions,
marriage.”
While I support your notion to some degree that divorce has become a
commercialized industry and now ceases in large part to take the
sanctity of the institution or the interest of those involved to
heart, I tend to believe that society, as a whole, is originally
responsible. The “throw-away” nature of our society and its spoiled,
selfish, postmodern propensity to instantly gratify itself at all
costs is probably more to blame. How ironic it is that by creating
such a disposable society that we have rendered ourselves worthless
and disposable in the process. Like vultures, the money-hungry merely
capitalized on dead and dying relationships and created the industry
we have today.
Moreover, how pathetic the situation has become that we can now stoop
to offering online divorces, in a kind of “shake-and-bake” petition
where you just add water and stir, and that seemingly high offices for
whom all respect should be due actually stoop to recognize these
instant, impersonal terminations of matrimony in some jurisdictions
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=instant+online+divorce
Finally, I hope your experience with us has been a positive one and I
look forward to working on other questions for you in the future.
Regards;
Tutuzdad-ga
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