Legislation

The very reason DivorceInjustice.org exists is to change society for the better.  One of the ways I have tried to do this is by bringing to public light the unethical and criminal actions in my divorce and another is via blogging about divorce injustice. The theory is that if the public knows more just how corrupt the divorce systems is that it will prompt them to demand reform. This section is about what that reform should be. 

Immediate Legislative Goals

Although current laws are widely ignored in divorce proceedings (as Spring and Nelly Wince's actions clearly show), laws can and should be modified to help make the system less arbitrary and more just. The way this has worked in most states which have either passed divorce reform laws or are considering doing so, is to move away from open ended, or in some cases legally discriminatory, judicial guidelines to ones that are more clear and equitable. It is much more difficult for a judge to rule unjustly when it goes against a legal guideline. Too much judicial discretion is an open door to unethical decisions.

Below are my ideas on how the law needs to be changed. These changes are modest and evolutionary. Many of the provisions have already been enacted in various states.

Divorce Law

• All divorce laws should be gender neutral. (Minnesota currently has an explicit bias in favor of the woman in a heterosexual marriage for spousal support)

Court Guidelines for Custody

• Joint custody should be awarded unless both parties agree otherwise or there is strong evidence that it would be in the best interest of the child or children to have less than joint custody with one of the parents. Examples of where joint custody would not be in the best interest of a child would be criminal convictions or strong evidence of substance abuse by one of the parents.

Court Guidelines for Spousal Support

1. Spousal support can be either:

• Rehabilitative alimony: Support given to a lesser-earning spouse for a period of time necessary to acquire work outside the home and become self-sufficient.

• Reimbursement alimony: Support given as a reimbursement for expenses incurred by a spouse during the marriage.

2. Spousal support should never exceed half the length of the marriage unless the spouse receiving support is classified as disabled.
3. In no case should a spouse receiving support have a gross income higher than the person paying support.
4. Spousal support shall terminate once the payor qualifies for normal social security retirement.
5. If the payor can show that the recipient has maintained a common household with another person for a continuous period of at least three months, the existing alimony order shall be suspended, reduced, or terminated. (this is verbatim from the Massachusetts Alimony Reform Act of 2011)
6. Should a payor remarry, the new spouse's income and assets shall not be used to benefit a previous spouse.
7. The Court will have the right to deviate from the above guidelines only under exceptional circumstances. 

It should be noted that the above does not concern child support as that is handled separately. I do believe that both parents have an equal obligation to support their children; however, the reality is that this is difficult to enforce without harming the children. Although it may be considered unfair that one spouse provides more support than the other for a child or children and a person may reduce their child support obligations by falsely claiming they cannot find a job or through purposeful under-employment, making each party provide the same level of support regardless of their desire to do so could unduly harm the child or children.

If the above is legally enacted it will provide the following benefits:

1. Reduce the incidence of divorce as it reduces the financial incentive to subvert the system for financial gain through unethical and criminal actions.
2. Reduce criminal activity not only in divorce cases but beyond. A litigant that commits perjury or a lawyer that knowingly lies in court will became less likely to follow the law in in other areas.
3. Restore confidence in the fairness and impartiality of the judicial system.
4. Reduce the cost of divorce not only for the litigants but society as well.
5. Reduce the negative impact, both emotional and financial, of divorce on children.

Fraud Upon the Court

Fraud upon the court is one of the most serious offences there is against an officer of the court, a category which includes judges and lawyers. USLegal.com states:

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court defined it as: 

"Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."

Fraud upon the court is so serious it has no statue of limitations and a finding of fraud upon the court has the power to invalidate court rulings. 

Nelly Wince's actions are a textbook example of fraud upon the court. And for at least one of her actions I have evidence against her that is about as strong as you can get. Yet, the Court and Office of Lawyers Professional responsibility has ignored this. Most lawyers I have talked to say it isn't used in Minnesota and the County Attorney's office told me, in writing, that fraud upon the court doesn't exit at all in Minnesota. When I asked about Minnesota Statue 518.145 (which incidentally is the first result you get back on Google when searching for "fraud upon the court Minnesota") which uses the term, "fraud upon the court" I received no reply. 

In Minnesota today, fraud upon he court is commonly committed without fear of  prosecution. In fact it has become a way of doing business for lawyers such as Nelly Wince.

I believe the legislature should:

• Clarify both the law regarding fraud upon the court and its seriousness.  
• Direct law enforcement to vigorously prosecute cases of fraud upon the court. 

This will go along way to creating a more just legal system. 

In the Long-Term  

Ultimately, I believe that the vary nature of marriage should and will change but this may take a generation. 

However, even today a couple can achieve almost all the benefits of marriage without legal marriage.

It is true that the are certain tax benefits to being married but these are offset by the disadvantages. For example, a joint income allows you to shelter more income from taxes if incomes are widely desperate, however as incomes approach equality the benefit disappears and becomes a disadvantage. For example, for married couples the Adjusted Gross Income (AGI) limit for a Roth IRA in 2014 is $192,000 whereas for single people it is $129,000. Thus, a couple not legally married each with an income of $120,000 per year can each take full advantage of a Roth IRA whereas if they were married they would be unable to contribute to a Roth IRA at all.

It should be noted that many of the tax benefits of marriage, such as using a spouse for a tax shelter are harmful to society as a whole.

As for items such as making medical decisions while incapacitated, that can be done just like the elderly and single do through a health care proxy.   

In the end, I think the concept of a legal marriage will disappear. It is not something the government should be involved with as it has no vested interest in it. The populace seems to agree given that cohabitation rates are up and marriage is down. I think this is primarily because people see the reality of divorce. Between 2006 and 2019, 23% of births happened outside of marriage. And it isn't like the government has has stellar record when it comes to marriage. Laws prohibiting interracial marriages weren't even struck down by the Supreme Court until 1967 and even today many states ban same sex marriages. Add to that the unfair and overly complicated tax laws surrounding marriage and the costs and social upheaval relating to divorce (what this site is all about) and it is clear that the concept of marriage needs to change and is changing.

If marriage ceases to be a legal matter, does that mean the end of marriage? Absolutely not. I imagine the day when marriage will be more of a religious matter like First Communion or a just a secular term synonymous with cohabitation. And that will be good for society and good for couples.