By Bai Macfarlane
On September 12, an MSNBC story revealed that an estimated 10,000 parents were jailed each year for falling behind in child support payments. According to the story, nearly one quarter of the nation’s minors are in child support programs.
Mike Brunker, the Projects Team editor for msnbc.com says, “But in what might seem like an un-American plot twist from a Charles Dickens’ novel, advocates for the poor say some parents are wrongly being locked away without any regard for their ability to pay — sometimes without the benefit of legal representation.”
Brunker raises concerns about the practice of civil court judges jailing people without the person even having a lawyer. The Fifth Amendment of the U.S. Constitution specifies that no person shall be be deprived of liberty or property, without due process of law.
The Coalition for Divorce Reform raises other concerns. In and e-mail interview, Beverly Willett, the Vice Chair for the Coalition says the no-fault divorce system is gravely unjust.
“The fact that poor parents can land behind bars for failure to pay child support when they have no ability to do so is just one more example of the injustice endemic to our no-fault divorce system.
“Sued for divorce against their will, compelled to split their property and their children and dishonor their marriage vows, and now finally thrown into jail like criminals. Our on-demand divorce culture has so multiplied the number of divorces and clogged our courts that in many cases litigants are herded in and out like animals with little or no opportunity to defend themselves. In essence, they are silenced. Their voice is taken away in much the same way that they are silenced the moment they become an unwilling defendant in a divorce action.”
No-fault divorce occurs when divorce is granted to the person filing for divorce, even though the other spouse has committed no offense against marriage such as adultery, extreme cruelty, or gross neglect of duty.
Timothy B. Nolan, a Gulf War Veteran was a defendant in a no-fault divorce in GeaugaCounty, Ohio. His wife was awarded with their son and he was ordered to pay child support. Even though he was later diagnosed with Multiple Sclerosis, and medically determined unable to continue in his profession, the Geauga County Court and Child Support Enforcement Agency jailed him twice for being behind in child support.
“When I married my wife, I took my vows seriously and I lived up to my promises,” says Nolan. “My wife, on the other hand chose to quit fulfilling her vows. Though marriage is a contract, the courts don’t care whether a husband upheld his obligations while the wife quit. On the contrary, my wife, who breached the contract was rewarded by the Court and I was penalized.”
Willett, from The Coalition for Divorce Reform, says “Some parents do improperly withhold child support, and that’s wrong, but I’m not surprised to learn that the presumption of innocence does not apply in these child support contempt proceedings. With no-fault divorce, innocence is irrelevant too.”
In the MSNBC piece, Brunker writes that the person owing child support is not entitled constitutional protections that criminal defendants receive, including the presumption of innocence. “And in five states — Florida, Georgia, Maine, South Carolina and Ohio — one of the omitted protections is the right to an attorney.”
These same five states that don’t ensure the accused person’s right to an attorney refer to marriage as a contract in their laws. In typical contract law, the party who breaches the contract is held responsible to make good to the party who has been wronged. In Ohio Law “Husband and wife contract towards each other obligations of mutual respect, fidelity, and support” (3103.01). Florida specifies that ordained ministers in communion with some church “may solemnize the rights of matrimonial contract” (741.07(1)). In Georgia, marriage is a contract and written marriage contracts “shall be liberally construed to carry into effect the intention of the parties” (§ 19-3-1, 19-3-63). Maine’s domestic relations law has as its goal “to nurture, sustain and protect the traditional monogamous family unit in Maine society, its moral imperatives, its economic function and its unique contribution to the rearing of healthy children” (§650-1-B).
Other states laws refer to the contractual element of marriage or the value of marriage in rearing healthy children. But, in no-fault divorce practice, the party upholding the contract frequently has reason to complain.
Gregory Lynne, who lost his children in a no-force divorce in Caroline County Virginia, says, “After divorce, the non-custodial parents are robbed of their identities as persons. Hanging-on, teetering between a jail cell and sub-standard wages (after paying child support,) and limited by child visitation orders, discarded parents live a tenuous existence. Many are discouraged and lose hope of ever raising their children to their full potential. Instead, they are treated like indentured servants, pimped by the state to ‘turn economic tricks’ as-if they deserved to be objects of underworld exploitation for the benefit of their absentee families.”
Bai Macfarlane writes at MarysAdvocates.org