Our Story (7 Times Around the Jericho Wall) – Part 2

by Standerinfamilycourt.com

“So this I say, and affirm together with the Lord, that you walk no longer just as the Gentiles also walk, in the futility of their mind, being darkened in their understanding,excluded from the life of God because of the ignorance that is in them, because of the hardness of their heart; and they, having become callous, have given themselves over to sensuality for the practice of every kind of impurity with greediness.

But you did not learn Christ in this way, if indeed you have heard Him and have been taught in Him, just as truth is in Jesus, that, in reference to your former manner of life, you lay aside the old self, which is being corrupted in accordance with the lusts of deceit, and that you be renewed in the spirit of your mind, and put on the new self, which in the likeness of God has been created in righteousness and holiness of the truth.” Ephesians 4:17-24

“But I want you to understand that Christ is the head of every man, and the man is the head of a woman, and God is the head of Christ.” 1 Corinthians 11:3

Part 2: FROM DECREE TO PREPARATION FOR APPEAL

Blogger’s Note: the discussion that follows reflects only my own research and independent thought, and does not necessarily reflect the advice of my attorneys.

In my earlier post I described what it’s like to be an unwilling “Respondent”, a conscientious objector, as some 80% of us are, in state government’s 45-year war on the traditional family.

My husband was seeking to be awarded over $200,000 of my retirement assets after spending some $500,000 or more on a 9-year adulterous overseas relationship, using his corporate position, foreign bank accounts, expense accounts and credit cards that I did not gain visibility of until property division discovery began, in the aftermath of our bifurcated grounds trial. (Bifurcation is where the judge rules that there will be a separate trial for grounds and for issues with the division of property. The trials can occur many months apart in a financially complex case such as ours. )

A very dirty secret of the government divorce regime is that the combination of case law and enacted law applies a double-standard to the marriage contract in a very unique way compared with any other legal contract. For purposes of dividing property, the body of binding case law, and the legislative history behind the statute, holds that marital misconduct cannot be applied because the marriage must be treated as an equal “economic partnership”. However, this is a spurious false analogy because most non-marital financial partnerships have far greater protections from partner malfeasance. Unlike the marriage contact, they are legally binding without due cause, and cannot be interfered with by subsequent legislation that would impair them (per Article 1 Section 10 of the U.S. Constitution) – and they cannot be broken without mutual consent and just compensation. By contrast, case law going all the way back to the late 1800’s and the U.S. Supreme Court holds that Article 1 Section 10 (and corresponding state constitution counterparts) uniquely cannot be applied to protect the marriage contract from ex post facto laws that would impair it. At the time that the husband of my youth and I repeated our marriage vows, “irreconcilable differences” was not a ground for divorce, either in our original state or the state to which we would move 26 years later. The Illinois law that would impair our marriage contract wasn’t enacted until 3 years after our wedding day, and wasn’t enacted in the state in which we actually said those vows until after our 35th wedding anniversary had passed.

How utterly shameful that as a result of applying this double standard, the essential covenant building block of our society that shapes the citizen character necessary to sustain our constitutional democracy into the next generation is afforded far less legal protection than the contractual “economic partnership” it is illegitimately compared to by the “no-fault” machinery!

Two hallmarks of corrosive, morally-repugnant legislation that undermines the wellbeing of society as a whole by creating special entitlements for a politically favored group: (1) pernicious use of a popular false analogy, and (2) contortions in the implementation details that result in having it both ways when it comes to a given set of facts and circumstances. Case law around dissipation claims presents a classic example when joined with the political effort to prevent marital misconduct from having a material case outcome.

Not every state has found it necessary to bar marital misconduct from consideration in the division of marital property, which by law includes retirement assets. About a dozen states expressly allow marital misconduct to be considered for this purpose. This alone calls into serious question the necessity of this heinous exclusion which heavily favors the offending spouse who brings the petition, and whether it is the least restrictive means of accomplishing a desirable, or even necessary, government aim. This is an enormously important question because, while recent statistics show that cohabitation has caused the marriage rate to decline-hence the divorce rate appears to have levelled off for couples under the age of 50, the widely-reported claim that the overall divorce rate is declining is false. By contrast, the divorce rate has been very rapidly increasing for couples past the age of 50. This government policy seems to do very serious harm to non-offending spouses who are nearing retirement age, particularly if they contest the divorce action on a moral, family-based objection and they have been the more responsible party financially (reflecting the high correlation between financial stewardship and staying out of adultery).

The legal community in our state wrings its hands over the prevalence of dissipation claims and has passed several recent measures to curb them, even though the inherent flaw in the philosophy of the law itself makes them the only available avenue to economic justice for many innocent Respondents on whom divorce was unwillingly imposed. Our judge displayed a particular contempt toward our well-founded and carefully documented dissipation claim, which consumed some 8 trial days to fully present, due to the extent of the financial abuse. As we shall see with the further details of our case, certain aspects of the “no-fault” law are only enforceable against a contesting, non-offending spouse by the liberal application of double-standards and by having a certain set of facts interpreted “both ways”, depending on the phase of the bifurcated trial (grounds versus property).

In order to avoid a grounds trial once a petition for dissolution of marriage is filed, a non-offending “Respondent” must affirm or at least not dispute any of the (effective) civil charges that have been levelled against them and against the marriage. They must, in effect, “plead guilty” in their filed response to the petition, affirming each of the following allegations which constitute the legal basis for a finding of “irreconcilable differences” (in many other states, Respondents are not actually afforded this opportunity) :

– that husband and wife have lived separately and apart continuously for at least 2 years (unless a cohabiting “reconciliation attempt” has occupied a portion of that time)

– that dissolving the marriage is in the family’s best interest

– that all attempts to reconcile have failed

– that further attempts to reconcile would be impracticable

– that the marriage has undergone an “irretrievable breakdown”

No bible-believing follower of Christ could ever conscionably sign off on the majority of these allegations without dishonoring God who is an active Party in the marriage covenant, unless theirs was a non-covenant remarriage of the kind that Jesus would call adultery per Luke 16:18 and Matthew 5:32. Moreover, once forced to civil trial, my Christian attorney and I attempted to bring significant evidence to individually refute each of these points because they simply were not true.

My husband, on the other hand, defended against what limited evidence of ours the judge would allow with outright perjury, both in his deposition and on the witness stand. Due to court rules of evidence, it was far from a level playing field to begin with, Plaintiff vs. Defendant, “Petitioner” vs. “Respondent”. My husband was openly permitted by the judge to reach far back into our decades-long marriage and drag out his version of isolated incidents some 20 years prior to buttress his allegations, but I and my attorney were restricted to bringing evidence of events that occurred only in the two years prior to the petition filing. Procedural Due Process and Equal Protection violation #1.

The judge deemed my husband “the more credible witness” for purposes of ruling on the truthfulness of the grounds, although there was never a shred of evidence brought in the case to support the judge’s bias against my personal credibility. After all, we couldn’t both be telling the truth. On the other hand, the judge had every opportunity to observe that my husband’s testimony conflicted not only with mine but with the testimony of both of our adult children in sworn depositions which the judge specifically asked to read before he ruled. At times my husband’s testimony on the witness stand conflicted with testimony in his sworn deposition. Perjury is very hard to keep track of, but someone who is telling the truth has no such conflicts – all of this escaped the judge’s notice (or regard). Where there’s smoke, there’s fire, and where there’s adultery, there’s inevitably perjury, yet it was I, the “Respondent” who was presumed not a credible witness. In his official ruling of “irreconcilable differences”, the judge is on record as stating he believed I was “punishing” my husband’s good behavior in coming home (from his overseas job) for virtually every holiday, and for sleeping with me every time during the two years of “separation”; I was punishing my husband with my decision to contest the grounds for divorce, and because I sought to bring evidence to refute the civil allegations against me and against our decades-long marriage. Love for my husband and reverence for the clear instructions of God could not, in the judge’s biased eyes, have plausibly motivated my behavior. Substantive Due Process violation #1, based on my exercise of moral conscience and religious expression.

In two of the recent marriage redefinition cases, Robichaux v Caldwell (Louisiana), and Bishop v Smith (Oklahoma), Federal judges discuss the role of animus against a “suspect” class of people in denying them their 14th Amendment rights to equal protection under the law. According to these Federal precedents, animus can be shown to exist if “some structural aberration in the law is at issue, like the imposition of wide-ranging and novel deprivations upon the disfavored group or deviation from the historical territory of the sovereign simply to eliminate privileges that the disfavored group might otherwise enjoy.” Is it possible that the ruling cohort of the legal community, in enforcing a blanket legislative preference for Petitioners, has developed just such an animus against contesting Respondents as a class such that boorish courtroom treatment of Respondents is a clear and consistent symptom? What would it take to prove this? Certainly the trend in recent legislation in our state has become progressively harsher to the rights of Respondents, who lack sufficient numbers, organization or economic clout to defend themselves as a class from unjust legislation, and from oppressive court rules designed to systematically suppress evidence that might be unfavorable to the Petitioner.

Since my attorney and I made the Christ-honoring choice not to start financial discovery during the grounds phase of the trial, we were not aware of the massive financial abuse at the time the judge made his finding of “irreconcilable differences”. Learning through family members that the circumstances which triggered my husband to suddenly file his petition after 7 years of status quo were of a superficial nature (his girlfriend was barred from his work country earlier that year for violating immigration laws under my husband’s management accountability), we wanted to emphasize counseling and reconciliation, which in reality is what remains to be in the true best interest of our children and grandchildren. However, the system is grossly biased against any genuine reconciliation attempts, and actually throws up perverse incentives against reconciliation.

Under our state’s statute and relevant case law, dissipation is defined as the misuse of marital funds and assets for a purpose not supportive of the marriage after the marriage has begun an “irretrievable breakdown” (crossing a specific threshold). My husband had used his senior position in the consulting firm where he worked to install his girlfriend as an employee and she also became the approver of his travel expense reports. There was significant global travel involved with his work. It was therefore necessary to include my husband’s company expense reports in the discovery requests, and to hire forensic accountants to adequately document our complex case, given the time constraints in my own fulltime employment. My husband’s attorney brought several expensive but successful motions aimed at barring both the work and the expert testimony of the accountants, also at limiting the time frame allowed for the dissipation claim, and barring the claim itself.

Even after many adverse rulings, our evidence still represented air-tight documentation that my husband and his girlfriend had established a pattern of taking lavish pleasure trips at least monthly that were not reimbursed as business travel. Despite substantial precedent in case law that should have precluded the judge from limiting the time frame of our claim, or rejecting the graphic category summaries of our evidence, or dismissing our expert witness accountants in the face of a very complex and employment-entangled international case, the judge ruled against us on all of these, changing his mind twice in ruling on the length of the dissipation period over which he would allow discovery and entertain evidence. He also disregarded our evidence that my husband continued to spend abusively in contempt of court after a protective stay was issued in October, 2013. He additionally allowed my husband’s substantial, willful noncompliance with discovery deadlines on multiple occasions and refused motions for continuance in relief of this. Procedural Due Process and Equal Protection violations #2, 3, 4 and 5.

Then outrageously, and despite the admitted continuous presence of my rival, my husband’s attorney filed a motion in the closing days of the property trial asserting that marriage reconciliation “could have occurred at any point up to the date the petition was filed“, asking that the judge deem the petition filing date as the date of “irretrievable breakdown of the marriage” and further asking that the many years of dissipation occurring prior to late 2012 be dismissed. Despite the aforementioned case law that should have precluded this, the judge was only too happy to comply, saying it was justified because I contested the grounds and because, the judge said, I still do not believe as a matter of conscience or on a biblical basis that our marriage is irretrievable (true enough, not that the law cares what my opinion or the opinion of our adult children is).

The judge had thereby found a way to punish me financially for my convictions, believing those convictions had unduly “punished” my husband. Clearly, he was making a political example of me. What should have been a provable $500,000 to $600,000 claim was thereby reduced to only $35,000. The result was that he ordered a 50/50 split of our assets instead of the 60/40 split that would have preserved my retirement assets intact, and he arbitrarily ordered both our main residence and nearby vacation home sold, disregarding our reasonable recommendations to award the higher value property to my husband for (his) sale, and award the lower-value property to me for an ongoing residence that I could afford to maintain into my approaching retirement. Substantive Due Process violation #2, based on my exercise of moral conscience and religious expression.

That judicial move, however, transformed our technical appeal into a constitutional appeal, one that caught the empathy of an experienced religious freedom law firm who agreed to take our appeals case.

At least one of the recent marriage redefinition case rulings, Bostic v Shaefer (Virginia) goes into an interesting discussion of the precedents defining a fundamental right. Citing a 1943 Supreme Court case, West Virginia State Board of Education v Barnette, fundamental rights are those which are “deeply rooted in the nation’s history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if [they were] sacrificed.” I believe there are numerous fundamental rights stripped from Respondents by the enforcement of the unilateral divorce system, all of which rights had been deeply rooted in the nation’s tradition and history until the enactment of state-by-state unilateral divorce laws commenced 45 years ago. One does not have to read very far into a piece by Fathers’ Rights advocate Stephen Baskerville to see how basic liberty is routinely stripped without cause from some Respondents. My own liberty to live in a home I currently own and could well afford with my future finances has been punitively stripped from me by this judge. My fundamental right to reasonably defend my retirement was arbitrarily stripped from me simply for the crime of showing up in court to defend the sanctity of my marriage, as is my basic constitutional right. If homosexuals as a class sharing a chosen, non-immutable shared emotional characteristic may claim a fundamental right to get married to the person of their choice (as has been recently ruled in numerous states across the land and allowed by the U.S. Supreme Court to stand due to lack of review), then contesting Respondents as a morally-defined and politically disfavored class have a fundamental right to stay married to the person of their choice, absent some just cause proven against them. This is before even touching my 1st Amendment right to freedom of conscience and religious exercise toward my God-given marriage.

Once handed down, appellate rulings in divorce cases are readily retrievable online these days from a simple Google or Bing search without a legal subscription service. Because by 2013, several innocent family members now worked for my husband’s firm, which was likely to be explicitly named in the eventual published case, we filed a motion to proceed with our appeal under a fictitious name, “Jane and John Doe” and “XYZ Company.” I love my husband and want to do everything I can to leave the door open for his return to fellowship with the Lord and to reconciliation with our family. I feel a moral responsibility to pursue this important appeal for the good of society if that’s the Lord’s assignment for me, but I also don’t want to deliberately make myself the direct instrument of retribution.
I believe my role is to stay out of the way of correcting natural consequences God brings to my husband as a result of his own actions, but not to step into that role myself if it can be avoided.
The court made its bias plain that I should have spared my husband of any consequences altogether by readily consenting to what God’s word forbids. To accomplish this, I should have modeled the principle of disposable covenants for the edification of my watching children and their spouses, grandchildren and their future spouses.

Whether we win or lose on appeal, public details of my husband’s breach of fiduciary responsibility to his firm is likely to harm his firm’s existing and potential client relationships, given the nature of that business. Incredibly, my husband’s attorney filed a response actively opposing our motion, even though it was in my husband’s very obvious best interest for the judge to grant the anonymity.

Proverbs 12: 4 – A capable wife is her husband’s crown, but a wife who causes shame is rottenness in his bones.

Proverbs 31: 12 – The heart of her husband trusts in her. She brings him good and not harm all the days of her life.

I should say here that my attorney did not feel it was prudent to base our filed anonymity motion on these true family concerns, so he instead filed the motion based on potential damage to my own safety and well-being should there be additional political opponents to our constitutional appeal. As a consequence, the trial judge erroneously treated our motion as though we had requested that the case be wholly impounded, and therefore denied our motion based on “the public’s right to know”, which we now have to appeal.

We have also filed several stay motions that the trial court judge denied, which are now going to the appeals court. My husband and I have each spent about $100,000 so far in legal fees, about 80% of which were incurred in the property / dissipation phase of our two trials where the main issue was my pension and his failure to provide for his own retirement due to dissipation of marital assets. Tens of thousands of dollars alone were spent on respectively combatting and defending my right as a Respondent to the sort of due process that everyone else takes for granted under the system of justice outside of Family Law Court.

In the meantime, I have taken up a bit of legal research myself in order to be a better-informed consumer of constitutional law services than I was of family law services. I have sought to record my learnings over this long journey in the hopes of being helpful to others in the future. I drew inspiration here from reading Judith Brumbaugh’s excellent book, “Judge, Please Don’t Strike that Gavel on My Marriage.” Judith is an amazing saint who has gone before, back in the 1980’s when she brought what was probably one of the nation’s first religious freedom constitutional challenges to Florida’s unilateral divorce law, which is actually harsher than Illinois’ (unless HB1452 passes in the Illinois Senate this fall). Judith was cut off early from funds to pay attorney fees, and incredibly she taught herself at the local library to represent herself after she became the victim of a judge who also was determined to make a political example of anyone who would dare contest a “no-fault” divorce based on a biblical stand for her covenant marriage.

(SIFC Update: to the praise and glory of God, the prayers of the saints in Illinois were heard and the 2013-2014 Illinois legislative session ended without passing HB1452 despite its earlier lopsided margin of victory in the state house of representatives.) This mercy defeats accelerated family destruction and increased poverty that would have otherwise devastated thousands of additional families across the state.

There are some legal environment factors today that I believe are changing by the month concerning marriage rights, equal protection and due process, and are very different now than in those earlier days of unsuccessful constitutional challenge of “no-fault” divorce, which I will cover (attorney advice permitting) in my next post.

Malachi 3:5 –

“I will come to put you on trial [state family law courts ,who trample My Covenant]. I will be quick to testify against … adulterers, lying witnesses, and those who cheat workers out of their wages and oppress widows and orphans. I will also testify against those who deprive foreigners of their rights. None of them fear me,” says Yahweh Tsebaoth [ the God of Angel Armies].”

I close this post by wryly pointing out that the above promise from God started to be fulfilled in 2014 when Judge Steven Reinhardt of the 9th Federal Circuit called out state unilateral divorce laws in his ruling in Latta v Otter striking down the constitutional vote of the people of the states of Idaho and Nevada to define marriage as one man and one woman. Standerinfamilycourt is in the process of reviewing all of the 2014 marriage redefinition cases, a time-consuming undertaking!