The Law

Fundamental to American jurisprudence is that a defendant must e afforded the opportunity to defend himself. The Judiciary Act of 1789 guaranteed parties in the federal courts the right to plead and manage their own causes personally or by the assistance of counsel. The wording in numerous state constitutions suggest that a defendant has a fundamental right to defend either personally or by counsel. An analysis of the centuries of consistent history led the Supreme Court to hold that there is a right to defend by the use of counsel or to personally defend oneself. Faretta v. California, 95 S. ct. 2525, 2540 (1975).

The no-fault divorce proceeding is a legal yet illegal court proceeding. One spouse sues the other for a divorce. The spouse wanting a divorce files a complaint against the other alleging, in some states, irreconcilable differences. The spouse filing the complaint is call the plaintiff, or the petitioner. Plaintiff literally means, "the party who sues." The spouse being sued or divorced is called the defendant or respondent. Defendant literally means "the person defending or denying."

The party in a lawsuit who proves his or her case wins the lawsuit, that is, if the plaintiff successfully convinces the court that he or she has been wronged, the plaintiff wins. If, on the other hand, the defendant is successful in defending against he claim brought against him, he wins; and the complaint is dismissed.

The defendant in a divorce proceeding, however, specifically in no-fault states, is not given the opportunity to defend or deny the claims brought against him. A defendant spouse in a divorce proceeding is denied the opportunity to deny. He or she is denied the opportunity to defend. There is no defense for a spouse being divorced. 

 John Quincy Adams once said, “Whoever tells the best story wins.” In a divorce proceeding, there is no story for the defendant that wins. The defendant spouse cannot “win” in a divorce proceeding. There is no argument that the defendant spouse can bring that will dismiss the charges brought against him/her. In a divorce proceeding, there is no case law that can convince a judge that the divorce should not be granted. There are no facts strong enough for the defendant in a divorce. The defendant loses as soon as the complaint is filed. The government and the states must address the legality of these no-fault divorce proceedings by allowing defendants to at least attempt to defend the charges brought against him/her. A defendant in a divorce, by law, must be able to defend and must be given the opportunity to win. Anything less is borderline unconstitutional.