I am interested in having relationships with men. I have one which is called a marriage.
Mr.Visible, say, is interested in having relationships with men. Why should he not be able to have one which is called a marriage?
We’re both interested in relationships with men. This whole foofaraw about whether or not the sex is “gay sex” or “straight sex” is a red herring; I’m not interested in “straight sex”. I’m just attracted to men. I have a long-term relationship with a man, living together, sharing life and expenses and joys and troubles; I get to call it a ‘marriage’ and have people agree with me. They don’t ask me if I’m fertile, they don’t ask me if I intend to have children, they don’t ask me if I talked to their god to get approval for my union; they did ask me if I had syphilis, though, before they let me get married. But now, people just look at my ring and agree that yes, my family is real.
Marriage is about enforcing the reality of families. I consider it to be about enforcing the reality of all families.
Ok, let’s take this one:
Marriage in the United States shall consist only of the union of a man and a woman . Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
This one pretty clearly prevents any state from ever granting any incident of marriage to anyone that isn’t a married heterosexual couple. (Some right-wing groups claim that it leaves it to the states, but this is clearly not true.) It also deprives civil unions of any legal status they might previously had have (people who have a civil union can call themselves “civilly united” but they have no vindicatable rights were this to be enacted). It further eviscerates domestic partnership registries (which grant some, but not all, of the incidents of marriage upon an unmarried couple) and may even destroy other rights currently taken for granted.
Note that right-wing groups are claiming that this Amendment would permit states to adopt, by legislative process, laws permitting gay marriage or similiar arrangements within their respective states. They are lying.. The language and effect of this amendment is clear.
The sad thing is that this is considered a “moderate” proposal. There are far more severe ones. Take, for example, this one (offered by a Catholic organization):
Section 1. Marriage in the United States and in any State shall consist only of the union of one man and one woman.
Section 2. Individuals greater than eighteen years of age may marry of their own consent. Individuals greater than sixteen years of age and less than eighteen years of age may marry with their own consent and the consent of at least one parent or legal guardian. Individuals less than sixteen years of age shall not marry.
Section 3. Marital status, and the legal benefits, protections, responsibilities, and other incidents thereof, shall not be conferred upon any other individuals, couples, or groups. Civil unions and domestic partnerships, other than marriage, shall not be legal, valid, or recognized in the United States and in any State.
Section 4. Congress shall have the power, by appropriate legislation, to promote and protect marriage and the natural procreation of children within marriage, to discourage and limit divorce, to discourage and limit remarriage after divorce, to discourage, limit, or outlaw adultery, and to discourage, limit, or outlaw any artificial means of procreation.
Section 5. All other articles of this Constitution, and of any law in the United States, and of any constitution or law in any State, shall not withstand the provisions of this article.
Section 6. All judgments, decisions, rulings, and orders of any kind whatsoever, by any court of law in the United States and in any State, shall not withstand the provisions of this article.
Section 7. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 8. This amendment shall take effect one year after the date of ratification.
Furthermore it says that a) the US Constitution and b) the State Constitutions shall not be construed to mandate that marriage contracts be permitted between same-gender couples.
I don’t see how this would forbid a State from extending a Domestic Partnership contract - of any sort barring that with the label “marriage” - to same-sex couples.
A “civil union” is the grant of all the “incidents of marriage” without the name “marriage”. The “incidents of marriage” include all the various rights and privileges that married people enjoy and unmarried people do not. I’m not going to list them here as there are hundreds of them.
What is says is that the incidents of marriage may not be guaranteed as a matter to law to couples who are not married. Even if a state were to adopt a statute (or constitutional amendment) that granted the incidents of marriage to same-sex couples, this amendment (were it a part of the Constitution) would prohibit any person who might otherwise receive those benefits from effectively asserting their right to them in court, for in order to do so that court would have to construe the state law (or constitutional clause) so as to require an incident of marriage be granted to that couple, which is expressly prohibited. What you would end up with is the situation where, on a case by case basis, individual couples might permissively be granted the incidents of marriage, but have no right to sue if they’re denied them in any particular situation. With this Amendment in place, a State could adopt a constitutional amendment creating civil unions, and then decide arbitrarily to randomly deny some incident of marriage from those couples, without recourse at law for those who are denied.
hildea: I’m not particularly familiar with US Divorce laws either. KellyM seems to think that “fault” can become an issue in cases of property distribution, but unsurprisingly I am unaware of her family law background.
At any rate, I’m saying that if MM relationships are likely to permit outside sexual partners, then it seems inappropriate to pull in MF divorce precedents when the relationship crashes. In other words, MMs should have a different standard contract than MFs.
Admittedly, KellyM maintains that my argument has no merit at all, (not even the thinnest sliver of merit apparently. Well! ). She characterizes one of my specific presumptions as a “prejudicial stereotype”. Those are fighting words, where I come from, so I’ll address the issue of alleged prejudice first.
Evidence Beats Table Pounding
As Dr. David Barash, Ph.D and Judith Eve Lipton, M.D. in their (seminal?) article “Monogamy is Unnatural: Fidelity Comes Hard For Humans --Gay and Straight”, relate, “Males of all species are especially poor at monogamy, and we predict that sexual monogamy in gay relationships would be particularly rare. Put two sperm-squirters together, and the likelihood is that one or the other or both–following their biology and perhaps in spite of their “higher” yearnings–is/are going to be unfaithful. We predict that lesbian relationships would be more stable than their gay counterparts, but not entirely faithful, either.”
Ok, so we have 2 experts who think that monogamy will vary between MM and FF couples. So much for the theory.
Let’s look at the data. This page attempts to sort through the statistics on gay monogamy. Some studies indicate that gay monogamy is statistically insignificant. Other studies show a significant incidence of monogamy among committed gay couples (particularly ones who have had a union ceremony, apparently).
I find both sorts of studies plausible: my only question was whether it is fair to assume that gay male couples and MF couples enter and maintain long-term relationships with similar expectations regarding sexual fidelity. By and large, it seems that such an assumption would be inappropriate.
Of course, I have not yet reached KellyM’s best argument, which is, “Judges are not idiots”. I attempted to address that it my original post.
But before we move to the central arguments, methinks that a retraction is in order. I have provided 2 cites, (obtained on the first google page), from gay-friendly webpages indicating that, (lo and behold!) male couples are Martian whereas female couples have different incidences of monogamy. We can continue to dwell on ad hominems or we can focus on the central issues. Your call KellyM. (I see on preview that Kelly has replied to my earlier remarks. I’ll leave those for a separate post.)
KellyM: Thanks for the reply. My google search indicates that a) your “moderate” amendment seems fairly commonplace and b) it is (misleadingly) characterized as putting restraints on judges when in fact the, “nor state and federal law” clause clearly puts restraints on legislatures.
Either the clause should be dropped or Marriage amendment advocates should change their less-than-honest tune.
And yet, you’ve come up with no reason why the monogamy rate among a certain group should change the marriage contract that they enter into. If you found a cite that said that left-handed persons were 30% more likely to cheat on their spouses, would you advocate a Civil Union Type III for them? What about a separate marriage contract for people who had cheated on their spouses in the past? I’m sure there’s a high recidivism rate, why not give them a Civil Union Type IV? Oooooh, wait: people who get married as teenagers are probably ripe for infidelity; let’s make them Type V.
Ironically, my boyfriend and I spent the past couple of months helping his family through an astonishingly rough period caused by his father’s infidelity to his mother. Our stable, prosperous relationship was the crutch they needed to get through their emotional and financial hardships, and keep their marriage together. We worked our asses off for weeks to help them through this. And we’re the ones who deserve to be singled out for separate treatment because we’re more likely to be unfaithful?
The fact remains, you’re using a prediction based on statistics to penalize a group of people for their actions, whether the individuals conform to those statistics or not. And you’re creating a set of divisions in the law where previously there was only one law.
If there’s anything likely to harm the institution of marriage in the US, it’d be the adoption of your proposal.
Seems that relgious conservatives need Bush to show some balls on this issue if he wants their enthusiasm in 2004. This suggests to me that he’ll have to come out strong on this issue at some point, or else risk low voter turnout from his constituents. Of course, it also might convince independants to vote against him.
It’s part of the argument that I made on page 3. (No biggie, quite frankly I haven’t had the patience to read through this entire thread either).*
The issue is divorce precedents. I postulated, with evidence, that gay men have a higher incidence of open relationships than MF couples. In these open relationships, they define fidelity in a different way.
Well, so what? A small number of MF marriages are constructed in the same way. If a family judge has perfect fact-finding abilities, he can make case-by-case judgments and any statistical patterns are irrelevant. Similarly, if all breakups were amicable this wouldn’t matter.
Here on the earth-planet however, breakups are not always amicable and division of property can get messy. Even petty. Furthermore, I postulate that judges, however wise, are usually not psychic and sometimes find it difficult to unpack the implicit agreements that go into a relationship. Heck, it can be difficult for those inside the relationship to know what their friggin/darling partner is thinking.
In fact, my understanding is that judges even find it difficult to care. So they use rules of thumb. I am suggesting that breeder rules of thumb may be inappropriate when applied to MM and/or FF couples.
“Heavens!”, some may say. “Is M4M claiming that MM, FF and MF relationships may not be identical in every way, shape and form?”
Yup.
Mr. Visible:
--------- If you found a cite that said that left-handed persons were 30% more likely to cheat on their spouses, would you advocate a Civil Union Type III for them?
I think you’re missing the point. I didn’t claim that MM couples tend to cheat on one another. They may or may not. I’m saying that their expectations of whether their partners sleep around with others (for example) may be different, on average, that a MF. That is their implicit contract is different and should be recognized as such. Absent an explicit contract, the implicit one must be gleaned from community standards.
In different communities, different standards apply.
Ergo, applying MF divorce precedents to MM couples would be inappropriate. Similarly applying MM divorce precedents to MF couples would be problematic.
— Ironically, my boyfriend and I spent the past couple of months helping his family through an astonishingly rough period caused by his father’s infidelity to his mother. Our stable, prosperous relationship was the crutch they needed to get through their emotional and financial hardships, and keep their marriage together. We worked our asses off for weeks to help them through this. And we’re the ones who deserve to be singled out for separate treatment because we’re more likely to be unfaithful?
I’m glad to hear you two could be of help. Nonetheless, not permitting MM couples to receive the blessed word, “Marriage”, doesn’t sound too burdensome to me. Similarly, not permitting MF couples to adopt “MM Divorce procedures”, absent a codicil to the contrary, doesn’t sound like a big deal.
I see no reason why a MM couple couldn’t sign an explicit codicil indicating their willingness to abide by hetero divorce rules, however. (Whether this would be wise is a separate matter).
At any rate, the OP asked for a single non-religious reason to oppose gay marriage. I have provided one. Alas, I have the sense that we still haven’t reached the core of the issue…
*I noted this on page 3. Usually, I do not endorse this behavior, but I’ve made an exception for myself on this thread. Apologies to the reader.
Actually, you haven’t. You’ve extrapolated a position from insufficient data, and then used that extrapolation to create a separate class of people in the US. And even a third.
A couple of questions. Please answer these.
How do you determine what trends will be present in gay marriages before there is any such thing?
Is it fair to compare the data on gay relationships and straight marriages, or would it be more fair to compare the data on gay relationships and straight relationships?
If it turns out that the rate of infidelity in straight relationships is approximately equivalent to that of gay relationships, would you rethink your position?
If a gay couple commits to a monogamous relationship, and not an open relationship, why should they not have the same contract as a straight couple that commits to a monogamous relationship?
You seem to think that it’s less of a big deal if a gay man cheats on his monogamous partner. It’s not. It’s an enormous blow, one that a lot of relationships don’t survive. When we promise our hearts, we promise them as fully and as openly as straight people do. And when someone abuses that trust, it hurts us just as much as it would hurt you.
In other words, you’re convinced we’re less human than you are.
When you assume that we’re promiscuous, it’s an offensive stereotype. It’s as bigoted as any assumptions people would make about a group because they’re a different race, or a different nationality, or a different social class. You’re making generalizations about people, and disregarding the individuals that make up that group. Even if we were, as a group, more likely to be promiscuous, making the assumption that because I’m in that group I conform to that stereotype is insulting. It’s the very nature of the word “prejudice,” you see. Even before you know anything about me, you’ve pre-judged me.
Being a second-class citizen in my own country is an onerous burden. And if a word is more important to you than the liberties of your fellow men, there’s something seriously wrong with your value system.
Joe Random: Looking back over your most recent posts, it occurs to me that we might be talking past each other, and in disagreement about a fundamental issue. In your last post you made these statements:
…among others. Whereas, in an earlier post, I said this:
I’ve actually said that more than once. You’ve never specifically agreed or disagreed, but the statements I quoted from you above lead me to think that you disagree. Rather, you seem to think that the only thing that actually makes a marriage is a marriage license issued by the state, and that all a marriage really is is a piece of paper issued to two people entitling them to certain priviliges and benefits. Is that accurate?
Consider Britney and Jason and their 55 hour wonder in Las Vegas. It’s brought up a lot in gay marriage threads. Where they, in fact, married? You might say that’s a stupid question, they had a marriage license, duly issued by the State of Nevada. Of course they were married. But when I say “married” here I am referring to my own conception of marriage as something that exists independantly of the state sanctioning it. In that sense, were they married? Or do you not agree that marriage has such an existence?
Well. We seem to be at an impasse here, and I’m not sure where to go. “The nature of the relationship is fundamentally the same,” you say. But consider: At the very foundation of an intimate relationship between, say, two women, is the requirement that each of the participants 1-be a woman who 2-wants to be with another woman. I do not say “foundation” lightly here…if these initial requirements had not been met, then this particular relationship could never have existed, could never have grown. No matter what we may say, no matter what we may observe about such a relationship after it has grown into it’s fullness, when it has (or as the case may be, lacks) love, caring, commitment, etc etc just like any other intimate relationship between two women, or a man and a woman, or two men, nonetheless the relationship never could have begun growing in the first place if not for these initial conditions of sexual orientation and gender. No matter how cool Bette might have thought Tina was, as a person, their relationship never would have gotten started if Tina had been a guy, or had wanted to be with a guy.
Now, you might allow that this is all true so far as it goes, but there are also other things that have to be present at the start of any given relationship, in order for it to grow into one, besides “sexual compatibility”, as you put it. But I put it to you that nothing else, absolutely nothing else, is as universal as, or runs as deep as, the overriding preference for a person of one particular gender. It’s something you might not even think about, in the sense that fish don’t think about water, but unless you’re looking for love in internet chatrooms, you almost always know (Pat from Saturday Night Live notwithstanding) the gender of potential mates when you first meet them. Whatever else is on your list, the gender checkbox is at the very, very top, even if you don’t notice it there.
And so it is for the overwhelming majority of us, as opposed to other things that might be on people’s lists. No preference about physical appearance (other than those directly associated with gender) or personality is as universal as the desire that a potential mate be the right gender to begin with. And nothing else runs as deep.
I’m against that one.
I’m against that one too.
That was an interesting article. I found this bit in particular:
…to be exactly in line with my own thinking on the subject. As applied to everyone, I mean, not just gay people.
Measure for Measure: Property division in dissolution is a nonstarter. In virtually every state, the rule is 50-50 division unless a 50-50 division is manifestly inequitable (and it is incumbent on the party asserting manifest inequity to demonstrate that 50-50 is manifestly inequitable). An incident of cheating generally does not work to create “manifest inequity”. Judges do not generally involve themselves in property division (almost always referring the matter to mediation or arbitration). 95% of no-issue marriages are dispensed of in less than an hour of the judge’s time. The nasty, drawn-out ones you hear about on TV invariably involve parties with unusually large marital estates and are actually quite rare. Virtually all contested divorces involve child custody issues.
Explain to me how same-sex marriages, assuming arguendo that your thesis regarding fidelity is true, would change this rule, given that infidelity is not generally sufficient grounds to alter the rules of property distribution.
Once again you’re wrong, Wierd_Al. You’re arguing from the specific to the general and not making any type of rational arguement why the specific makeup of a singular relationship should affect the general understanding of the concept of legal marriage.
Let’s ignore the topic of homosexuals getting married for a bit. Your reasoning still doesn’t hold up. Straight couples can and do marry even when they have no interest in having sexual relations - and this is especially true historically and places where arranged marriages are common. So sexual compatibility is not even an essential characteristic of legal marriage.
It is totally irrelevant to the discussion whether I as an individual prefer a male partner or you as an individual would prefer a female partner. The things that make up a legal marriage in the general concept are independent of any particular relationship. That being the case, there is no logical reason for a ban on allowing same-sex couples to be legally married.
For a legal marriage, right now, all it requires is for a man and woman to go fill out the paperwork and have a Justice of the Peace sign the papers. There are no questions about if they love each other. There are no questions about whether they’ll even live together. Only that they are of legal age, aren’t certain family relations and are citizens.
Sorry, not until we get some preliminaries in order.
Only in your mind, Mr. Visible. I’m indicating that there’s a higher preponderance of open relationships among homosexuals. I’m not saying that lies and betrayal hurt any less: indeed, the title of my previous post indicates as much.
More generally, I am saying that extending heterosexual divorce precedents into the homosexual realm involves assumptions. Starting with a fresh slate, as it were, does not: divorce judges can make decisions based upon similar couples.
But say I’m wrong. Research in the field of gender studies is rather underdeveloped after all. In that case, I still don’t see the harm in separating out divorce precedents by relationship-type, rather than co-mingling them.
Bullshit. When did I say “all homosexuals” are anything? Indeed, the site that I linked to detailed the variation of behaviors among homosexual couples.
We’re getting closer to the heart of the matter here. But why go there when we can abuse each other’s positions? Your objections boils down to a single non-derogatory word or phrase-- marriage vs. domestic whatever; my argument has nothing to do with the incidents of marriage, as defined by KellyM. I’d say that basing virulent accusations on such a slender pole reflects either poor integrity or an hysterical approach to the subject at hand. But perhaps we misunderstand each other.
KellyM: Nice post, I hope to consider it later. Sorry for having to deal with the above crapola first. Weird Al: Thanks for pulling that quote; I liked it as well. The point about jealousy is very apropos.
I deny that marriage in its legal form – which is the only form in discussion – is about sexuality in any way, shape or form. The presumption of sexual involvement between spouses certainly exists, but it has no bearing on the legality of a marriage in any fashion.
No, they do not. For the umpteenth time, there is no requirement that a couple make any vow of any kind whatsoever in order for their marriage to be legal and valid. Whatever vows a couple may take together are incidental to whether or not they are married in the eyes of the law.
No, we conclude, because it is factually correct, that the emotional status of the participants in a marriage are irrelevant with regard to the legal status of said marriage.
You’re almost on the right track here, but you veered off into incorrectness. The marriage isn’t invalid in such cases because the couple didn’t have sex. The marriage is invalid because the couple says – or at least one half of the couple says – that the marriage was entered into without good faith, for one of any number of reasons which vary from state to state. The lack of consummation is presented only inasmuch as it provides support to a claim that one or both partners realized at some point after the wedding that they did not wish to be married to one another, so much so that they refrained from sexual activity with one another. That’s all it means.
The only reason why there should be separate labels for same-gender marriages and opposite-gender marriages is if the two are materially different in the law. What you are arguing is that a same-gender couple and an opposite-gender couple get blood tests, fill out an application, pay a fee, engage in whatever ceremony they wish (if any), sign a certificate, have witnesses sign a certificate and file that certificate with a state in different ways, because that is the legal process of marriage, and that’s all that’s in debate here. We’re not talking about how couples relate to one another or behave with regard to one another or what their day to day lives are like, we’re simply talking about the legal means by which a couple becomes officially registered as having a marriage. So explain, please, what portion of that process is sufficiently different in a same-gender couple to merit a different title?
What part of it don’t you understand? You do not have to make any specific promises to be married. The only thing you have to do is meet the criteria of the state and affirmatively confirm – by your signature – that you do wish to be married to your partner. That’s not a vow, that’s not a promise.
Typically. But that doesn’t change the fact that the word friend covers relationships regardless of gender as does the word spouse. You’re the one who put forth the assertion that when the genders of the players are different, then there must be different labels applied to relationships, but then you turn around and point out that even in the case of marriage, there is the word spouse which is gender neutral. So which is it? Are gender-specific labels a necessity or not?
You’re arguing strictly from ignorance here. You’re not even familiar enough with the timeline of racial equality in marriage for your attempt at a point to have the smllest shred of merit.
Here’s a hint – the first antimiscegenation law on this continent was written in 1705 and the last was struck down by Supreme Court decision in 1967. Think about what that means and why your “what changed was that black people came to be accepted” as anything is a ridiculous commingling of two separate issues which have never coincided in any legal decision.
Simply put, even if we ignore that separate but equal isn’t, maintaining the division in the law maintains the division in the societal mindset and it is a division which is false, dangerous and most importantly, has no reason for existing other than the continued placation of people who have yet to wrap their minds around the fact that their preferences or beliefs are not sufficient foundation for the law.
Under the law, that is precisely and exactly accurate and, for the umpteenth time, the law is all we’re debating over.
Of course they were married. Does their marriage meet your concept of marriage? Perhaps so, perhaps not. But your concept of marriage isn’t the law. Your concept of what a marriage is, ought to be or ought not be is not the basis by which people are conferred marital status. What you’re talking about is a fine and dandy matter of discussion in a psychology seminar or professional gathering of family counselors or clergypeople but it has no place in a discussion about the equal application of law to all citizens because it is not germane in any way.
And if this is true, how is it germane to the discussion? An open relationship is not a bar to marriage. Intent to be unfaithful isn’t even a bar to marriage. We don’t ask people what their intentions are with regard to sex before we issue a marriage license. If a gay couple marries and then ends up divorcing contentiously and the “open” status of their marriage is in question, they will go through the same process as a hetero couple in the same situation. Why wouldn’t they? Because one study suggests that they’re more likely to have an open relationship or perhaps might be, in some cases and in certain situations blah blah blah vaguecakes more likely to be unfaithful? Come on. You cannot use single studies or even a handful of studies of this type as a reason that some segment of the population needs to have special laws which relate only to them. Next you’ll be suggesting that there be some special provisions in criminal law for blacks because there is a higher preponderance of criminal behavior in black communities. :rolleyes:
Unfortunately, much of the contract is implicit. As I’ve said earlier, if an MM couple want to sign an explicit contract outlining the sorts of penalties that would occur during divorce should one or the other sleep with a third party, I have no problem with that.
Again, the problem arises when the contract is implicit. I’m suggesting that MM implicit contracts may be presumed to be different (on average) than MF or FF implicit contracts, and that the exact nature of them may not be directly observable by the judge. Therefore, divorce precedents for MM, MF and FF couples should not be commingled, pending more experience in this area. Naturally, I’m not claiming that statistical guesswork or even community standards should replace direct observation, where direct observation is feasible.
It is MrVisible and TeaElle who are making assumptions about what MM, MF and FF implicit contracts are like. I am merely suggesting that we should keep them separate until we’ve built up an adequate volume of case law. Afterwards, judges can let their collective experience guide them.
Of course, KellyM has blown my point out of the water, by suggesting that accusations of infidelity, while not wholly irrelevant, don’t really carry the weight that they used to in divorce court. (Assuming that I’m reading her correctly.)
In other words, whether or not an implicit contract to be sexually faithful exists or was broken will not substantially affect either divorce proceedings and equally importantly, the negotiations preceding the meeting with the judge. The latter must be demonstrated as well.
Since my ignorance in family law is vast, it is difficult to respond to that. I have gleaned, however, that Divorce Law varies greatly between states, so the problem may be even more intractable than I thought. (Then again, my knowledge is so superficial that even the preceding statement may be off.) More later. Maybe.
Oh yeah, if there’s a child custody dispute, it’s my understanding that the welfare of the kid comes first, so it will be the comparative behavior of the two parties, as opposed to disagreements regarding the nature of their, um, agreements, that will matter. So that fork of the argument doesn’t look too promising for me.
There is also the question of whether separate divorce precedents between MM, MF and FF couples should necessarily imply that only one of the contracts should win the coveted term, “Marriage”. But I’ll leave that issue (and others) for another post.
No. M4M advocates attaching the word “Marriage” solely to MF couples for cough administrative purposes.
Others find the word evocative and highly symbolic. Still others have an eye on the 2004 election and prefer to grant the symbols to one side and substantive reforms to the other.
I have specific training in family law as a “guardian ad litem” (a person who investigates and reports to the court on the fitness of the parties in a divorce to have custody of the children of a marriage), and have twice served in that capacity. In the course of obtaining that training, I received a thorough understanding of the principles of family law. (I was also a law student.) In addition, I have been through a divorce myself.
Most (but not all) states adopted, in or before the 1970s, substantially similar reforms to their marriage codes that, amongst other things, took away the concept of “fault” for divorce. These reforms also, in most states, entirely removed or substantially limited “alimony”, and in partial compensation, changed the default property distribution to equal between the parties. Prior to these reforms, proof of fault was required, alimony was routinely ordered to be paid from the ex-husband to the ex-wife, and the vast bulk of the property would generally go to the ex-husband. Even then, infidelity did not often alter the distribution of property, although infidelity by the wife would sometimes reduce or entirely eliminate alimony. The main place infidelity came in was in proving “fault”, the need for which was eliminated by the no-fault reforms. A relatively typical formulation of this rule is found here (from Indiana Code 31-15-7-5):
The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
You will note that the conduct of the parties, except as it relates to “the disposition or dissipation of their property” is not relevant in determining whether a deviation from “equal distribution” is “just and reasonable”.
Contrast the law of California, which mandates an equal division of community property without exception. See California Family Code § 2550.
Contrast also the law of Utah, which provide little guidance in making the property distribution and explicitly permits, but does not require, the court to consider the “fault” of the parties in setting alimony. See Utah Code § 30-3-5. Utah has not adopted any significant part of the 1970s divorce reforms (although it does have “irreconcilable differences” as a ground for dissolution) and can probably be considered the most conservative state of the union in regards to these matters.
The fidelity of a partner in determining child custody may or may not be relevant. The rule is, everywhere, “the best interest of the children.” How the past fidelity of either parent plays into this is obviously case-sensitive. As a guardian ad litem, my concern for what caused the breakup would be minimal, except insofar as it might tend to suggest the likelihood of a repetition of events in a subsequent relationship for that parent, or insofar as the children were directly involved in the breakup. So I would want to know about significant incidents of past infidelity, but infidelity alone would not (and does not) create a presumption of parental unfitness and I would not include it in my final report unless I deemed it relevant in determining the relative fitness of the parents.
Finally, fidelity has absolutely no role in fixing child support, which is done in every state by formula guided primarily by the respective incomes of the parents with very limited opportunities for adjustment.
The only three things to be decided in a divorce case being property distribution, child custody, and child support, I see no reason (administrative or otherwise) why we need three parallel institutions under law when the rules applied to one can be applied to the other two without modification or alteration.
). She characterizes one of my specific presumptions as a “prejudicial stereotype”. Those are fighting words, where I come from, so I’ll address the issue of alleged prejudice first.