Texas attorney takes on divorce laws
cmfce at smartmarriages.com
Fri Aug 11 09:50:15 EDT 2000
subject: Texas attorney takes on divorce laws
from: Smart Marriages
Texas attorney takes on divorce laws
By Al Knight
Denver Post Columnist
August 9, 2000 - Houston attorney Ed Truncelito is upset by two things.
first is the fact that his wife filed for divorce two years ago, and the
second is that, under Texas law, the divorce was granted over his
Truncelito has now challenged the whole notion of "no-fault divorce," and
wants the Texas Supreme Court to hear his arguments.
Part of Truncelito's case against nofault divorce is utterly personal, but
the part of it that deals with public policy makes some good points.
Marriage, after all, is a contract. Under normal contract law, when one
breaches a contract the other party is usually entitled to damages. In the
marriage contract, however, the standard is that any party can leave
whenever he or she wants.
Truncelito insists that no-fault statutes mean that no one is really
married. Marriage is little more, he says, than cohabitation. To make his
point, he created a Web site, no-one-is-married.com. A press release on
that site argues that the Texas legislature intended that the nofault
provisions were created to operate only in situations where both parties
the marriage agreed on the divorce. In his own case, Truncelito objected
but those objections were pushed aside.
The Texas Supreme Court, Truncelito says, has wrongly interpreted that
state's divorce law to mean that when one party wants a dissolution of the
marriage, the court is obliged to grant it.
The Colorado law, in contrast, provides that the request for a divorce can
come from either or both parties, but if it comes from just one, the other
party may file a response denying that the marriage is irretrievably
broken. The law then provides that the court shall consider all relevant
factors, including "the circumstances that gave rise to the filing of the
petition and the prospect of reconciliation," and either find that the
marriage is broken or continue the matter for no more than 60 days and
"suggest" to the parties that they seek counseling.
Guess what? In practice, the results in Colorado are very much what they
are in Texas. When one party resists a divorce, it might produce a 60-day
delay but not much else. In the end, the divorce will be granted.
While one might sympathize with Truncelito for his predicament, the truth
is that marriage is no longer the kind of emotional commitment and legal
obligation that it once was.
Many young people seem to want to be about as far away from marriage as
they can get. Plainly, it will take something of a revival of general
interest before marriage is seen as much more than just another living
Congress has lately been much involved in eliminating the so-called mar
riage penalty. Bill Clinton has vetoed that bill and it is doubtful there
are enough votes to override it. In any case, the bill wouldn't do much to
overcome the fact that marriage is seen by many people as offering few
advantages over other living arrangements.
If there is any good news as far as marriage is concerned, it seems to be
this: People who are interested in raising families still tend to favor
institution and think it best for them and their children. And, wonder of
wonders, there seems to be a renewed interest in raising families. Many
and women who put careers first in recent years have readjusted their
priorities and decided to raise a family. In doing so, they are not
thinking much about the ease with which it is now possible to get out of a
There are those who think the answer for America - especially for its
children - is the imposition of greater legal restrictions. Covenant
marriages are perhaps the best example of this. Couples would voluntarily
take vows that don't include the usual escape clauses, vows that, for
example, would require intermediate steps before a divorce could be
requested, let alone demanded.
Others like Truncelito think the law should be put back in a form closer
what it was more than 30 years ago, when courts would have to consider
cause before granting a divorce.
That is not going to happen. The nation went down this road primarily to
make it easier for parties to get out of a marriage without airing all of
the family laundry. One of the results was supposed to be lower legal
Fat chance. In far too many cases, there has merely been a shift in
emphasis. Instead of lawyers haggling over fault, they now charge similar
or higher fees for fights over custody and property division.
What this proves is not that no-fault divorce laws are bad but simply that
they weren't quite what they were cracked up to be. Not the first time
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