Isn't this a violation of Church/State separation?

In My Humble Opinion
1

I’m posting this in IMHO because I would like the humble opinions of Dopers and not necessarily legal advice but suggestions for resolution for this issue. If it starts wandering into Great Debate territory, may it be moved by mods.

A little background: I’m in Oklahoma and my ex-husband is a lawyer. Our divorce was very nasty and protracted. We now have 50/50 physical and legal custody of our son.

We’ve both moved on and have new partners. His gf lives here locally. My bf lives in the UK and when he comes to visit, he stays with me, naturally.

There is a statute in the OK divorce statute that dictates that there will be no cohabitation with members of the opposite sex to whom one is not married when minor children are in the home. Now, my attorney says in 40 years of practicing law, my ex is one of a handful of people who has ever made this an issue. He has filed contempt charges against me and had the judge smack my hand over one night of my bf being here on the same night as my son. If I do it again, I could lose my share of the custody. Not incidentally, my bf slept in a tent in the yard. He wasn’t even in the house.

Now, I maintain that this is not cohabitation. He’s a guest in my home. He doesn’t pay rent or utilities and this only happens a few times a year. He’s also the only bf I’ve had since my divorce, so it’s not as if I parade men in and out of my home. We’re in a monogamous relationship.

So, here’s the C/S issue: How can the State of Oklahoma tell me I must get married in order to have my very monogamous partner sleep in my home? If we were lesbians, we’d be golden. I don’t know that I ever want to get remarried, and this whole thing just smacks of the State telling me to participate in a religious rite that I’m not interested in at the moment.

How can They do that? What can I do about it?

I’m sure more questions will arise from this and I’m happy to answer them in order to get some clarity on this issue. Trust me, it’s a train wreck.

Many thanks, Dopers!

eta: I realize you may not be a lawyer. even if you are, you are not my lawyer. That’s settled. :wink:

2

No, nothing to do with church/ state separation. Presumably the people of Oklahoma elected the people who passed this law. They may have derived their decision from religious belief, but they could have derived it from purely atheistic sociobiology. We’re not going to make it unconstitutional to outlaw murder just because “Thou shalt not kill” is in the Bible and a lot of people’s conception of why murder is wrong comes from their religion.

If your religion required you to cohabit with a man, then church/ state separation might enter into it, because the state would be preventing you from practicing your religion.

Maybe there is some combination of a civil ceremony and prenuptial agreements that would meet your needs?

3

I agree the law sucks. But IMO it is does not violate the U.S. Constitution…

4

I don’t know that it’s a church/state separation violation, because it doesn’t sound like the law is specifically advocating a specific religion.

Still, that’s a fucked up law. This is just not the business of the State of Oklahoma. Typical Republicans. Go on and on about how the government should stay out of everyone’s business, except when it comes to consenting adults making decisions about their bodies. Then it’s morality legislation fun times! I’d write to my state representatives if I were you. I know it might sound unlikely, but it’s not impossible that the law could be changed if enough people complain.

5

Wow, your ex is an ass. My condolences. I assume his girlfriend has never stayed with him?

6

Hence, the divorce.

Thanks for the condolences.

And that would be the logic, that she’s never stayed over while my son was there, but my son says otherwise. He told me a while back that she’d stayed the night, but later his dad convinced him it had all been a dream. He’s only 7. :frowning:

7

Not a church/state issue.

Couldn’t you marry in a civil ceremony?

8

I suppose so, but as Kyla said, I just don’t understand how it’s the State’s business. Yes, it’s the State’s business if I rape/murder/steal, etc. But I’m not hurting anyone. I just want my little slice of life, liberty, and the pursuit of happiness like everyone else.

My attorney has said, “Why don’t you just get married and get it over with?” (Nice attitude, eh?) And one of the reasons we haven’t is that no one should have a voice in that decision but us. Add to that the fact that I’m as yet undecided on the idea of getting remarried at all, it seems like it would just confuse the issue even more to be doing it to for the wrong reasons, so to speak.

9

Neither do I. I just don’t see what church/state separation has to do with it. They are not making any law regarding religion, nor are they forcing any religion on you.

I think your best argument comes from the definition of cohabitation. It seems that as you describe it no male friends, including relatives, can ever spend the might at your house. This seems unenforceable on it’s face.
ETA: Get a new attorney. One with your best interests at heart, and who has the stones to fight for you.

10

But if the law says she’s married, then she probably loses alimony.

11

'Twould be true… if I’d ever gotten any. In OK, alimony is based upon one spouse’s inability to support themselves. I’m perfectly capable of supporting myself and received no spousal support.

12

The issue has nothing to do with religion. The issue is whether or not something is in the best interest of the child. My state does not have a similar statute, but we may as well have, because there is caselaw indicating that cohabitation without benefit of marriage can considered in child custody/modification cases. “Moral fitness” is one of the factors used to decide initial custody, and can also be used in an attempt to modify prior custody determinations.

13

Another vote for “your ex is an ass”. I don’t have advice or legal knowledge. Just want to offer sympathy. When I applied for temprary custody because my son’s father said to me “I will take him where you can’t find him” my petition was denied, but there was a condition in the temporary agreement stipulating tha neither of us would take the child on any out of state trips without notifying and receiving approval from the other. He hauled me into court because he found out after the fact that I had taken the baby to have lunch with a relative over the state line, 10 miles from our home. Lunch! We were “out of state” for all of 1.5 hours and I had to take a day off from work and pay an attorney more than a few bucks.

Is your ex representing himself or in some other way getting deeply discounted representation? Grrrr.

14

OK, but how does being in a very long-term committed relationship equate to immorality? I promise I’m not being deliberately obtuse, but don’t people (both gay and straight) raise children in happy loving homes without benefit of marriage all the time?

15

We separated six years ago. Divorced three years ago. He represented himself throughout the divorce. Then he got a lawyer after. :confused: One would think everything would be settled at the time of the divorce, but it’s always something with him. He’s a control freak. Most of the time, I just try to stay out of his way, but I just can’t believe there’s no solution to this issue.

16

I’ll say it again. Get another lawyer. It may well be the case that there is no way to fight this law, but you need someone who will at least get of his ass and try.

17

Doesn’t even seem to have anything to do with religion on it’s face.

(And trust me, there are a LOT of issues that DO involve religion on its face and also aren’t seen as violating any sort of church/state separation. It’s probably one of the biggest jokes in Constutitional Law IMO).

18

When he filed for contempt (and won??) did you point out that your BF was in a tent in your backyard? That just blows me a way that a judge would find that to be any form of “cohabitation” at all…Sucky judge, suckier ex…you have my sympathies for both.

My state has similar rules, but I am not sure if they are laws or “guidelines” regarding “overnight guests” of the opposite sex with regard to child custody but to my knowledge they are never upheld, or at least I can’t find a case of anyone losing their custody based solely on cohabitation outside of marriage.

My husband’s EX tried to use it against us back when we were “shacking up” but living in a different state (the divorce and custody case was in Kansas, we lived elsewhere but the case stayed where she was). My husband had majority custody of his kids (she had summers and rotating holidays) and the minute we moved in together she tried to make a case for reversing custody based on that. The problem with that was that she too was living with her boyfriend, so the judge in the case (where my husband “appeared” by telephone) basically told her to quit wasting his time and to stop filing frivolous claims (but she didn’t…to this day we fight the frivolous nonsense).

19

Please note that I don’t necessarily condone the rule, but I happen to live in the Reddest county of a very Red State. Jesus is much bigger than John Lennon ever thought about being here. Last time I looked, we still had a sodomy statute on the books–they may have repealed it, since SCOTUS frowned on similar laws. I don’t do criminal defense anymore, and rarely have reason to review those statutes.

That said, the immorality appears to be the possibility of sexual activity outside of marriage.

20

Yes, I told the judge he was in a tent in the back yard, and yes, my ex won. How, I just don’t know.

Here’s an additional twist (we need one?): On New Years Eve, they went to a hotel, got two rooms and she stayed in one room with her kids and my son and his dad stayed in the other room. But somehow, that’s “totally different.” :rolleyes: