- Judy Parejko, August 3, 2000
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Texas was unique in that it didn’t want to make divorce easy – it didn’t
want to go the way of all the other states in their no-fault enactments. But that is just
what happened - the unintended consequence of confusion with the law aided by aggressive
lawyers.
Few expected the divorce rate to double when, state-by-state, no-fault divorce rolled
across the country thirty years ago. Ridding the courts of the acrimony so commonly a part
of divorce hearings was one of the aims of this law change. In addition, most cases were
viewed as "uncontested" and therefore, without the need for proving fault.
According to legal experts, changes were necessary to "bring the law into conformity
with prevailing practice." Proving cruelty, or other grounds, was unnecessary, as long as the divorce was uncontested. By eliminating the need to lay blame for the marital problems, hostilities could be reduced. The new law essentially said: "If this marriage doesn’t work any more, the two of you are free to go your separate ways."
At the time, Texas was unusual among the states by allowing no-fault only if neither spouse objected to the divorce. Most other states implemented more radical reforms, allowing no-fault divorce actions, even if one spouse felt there was still a chance for the marriage to be saved. It didn’t matter – the filing spouse had all the power.
But Texas did not want to make it so easy to dissolve a marriage. The right to object to the divorce was maintained when the law was enacted by the legislature. The divorce respondent could demand that "fault" grounds be used instead of the "no-fault" ground. Research into the origin of "no-fault" reveals this little-known fact.
Now let’s look at a recent case in Harris County to see how all this plays out so many years after the change in law.
At a temporary injunction hearing on July 19, 2000, before 312th Circuit Court Judge James D. Squier, defendant Dennis Wright contested his wife’s divorce action, claiming that he and his wife might be able to reconcile, if given half a chance. The fact that they had two small children was an important added incentive for trying over.
Wright was represented by attorney Ed Truncellito, who after his own divorce in 1998, had done extensive research on Texas divorce law, and subsequently discovered that, in 1970, when the Texas no-fault divorce law was enacted, it applied to "uncontested" cases only. He also found that the 48 words in the Texas no-fault law were so vague that by 1975, pressured by divorce attorneys, the Texas courts had interpreted no-fault to be "no defense," meaning that if only one spouse wanted the divorce, a divorce was granted. While that may always work well for divorce attorneys who promise results, it doesn’t work so well for reluctant spouses and their children.
In Wright’s case, he didn’t think divorce was the answer to their marital problems, and he was hoping that he might de-rail the divorce if he, through his attorney, questioned the faulty interpretation of the law. He and his attorney were well-aware that stopping a divorce in Texas was rare to nonexistent.
At the hearing, Judge Squier ruled against the challenge of the quarter-century faulty interpretation of the law. Neither Wright, nor his attorney expected otherwise, since no one had warned the judge about a challenge that could undermine the whole process. Truncellito hoped to see an eventual review of the law by the Texas Supreme Court.
However, the hearing highlighted another problem. While Wright attended this hearing, his wife did not. And she missed the argument set forth by her attorney, Richard Mintz, who had nothing to say about the history of no-fault interpretation. Instead, he argued that his client needed the divorce because, quoting, "Dennis Wright may have the intelligence of Einstein, but he has the emotional makeup of Hannibal Lecter" (the character who was a serial killer and cannibal in the movie, Silence of the Lambs).
After the hearing, the drama continued outside the courtroom where Truncellito asked for reconciliation measures for his client. Mintz not only refused but further added, "You can be damned sure this case is going to be divorce!" After all, hasn’t he previously been able to guarantee divorces to his clients? Decades of confusion about the law had given unchecked power to divorce attorneys to further destroy any remaining goodwill between spouses. They could safely promise divorce and, for a large enough retainer, always deliver.
A proper ruling by the Texas Supreme Court could go a long way to straighten out this mess and silence the boasting of such divorce attorneys. One-sided, no-defense divorce has given attorneys a lot of power over emotionally-distraught spouses, to decide the fate of marriages and children.
Trial judges have their hands tied, because they have so many cases to handle. On the one side, they are limited by case history revealing gradual erosion of the law due to faulty interpretation, and on the other, by attorneys who pressure them. The result for distressed families is that they cannot rescue themselves when they fall into the divorce-trap.
Texas law also explicitly states that mediation should be part of the divorce process, if there is any place for it. Using mediation to explore whether or not reconciliation is possible seems an appropriate use for this alternate dispute resolution process. Such an exploratory process, by a mediator modeling good communication and problem-solving skills, could help Wright and his wife sort out whether the solution they really want to their "problem" was divorce.
But in their case, as in so many others, the mediation session that was offered had nothing to do with the marriage or reconciliation. Both lawyers, who were present during the session, presumed divorce. The only issues being considered in mediation were child support and custody. Following that session, Wright had fired his original attorney and hired Truncellito, after learning about his extensive legal research into the issue. For the spouse who wants to try to save the marriage, options are not avialable.
Wright’s case will go on appeal to the Texas Supreme Court unless his wife’s attorney drops the no-fault grounds in order to avoid the added work and, instead, re-files, using "cruelty" grounds.
But Truncellito’s own divorce will go on appeal to the Supreme Court, filed August 7th, 2000, and that should allow the high court to once-and-for-all sort out whether Texas is just another "no-fault, no-defense" state or not. No-fault law and implementation will be on trial, if the case is heard.
Truncellito is also preparing a class-action lawsuit, filed against the State Bar of Texas. The claim would be similar to the one towards Big Tobacco – that they knew their product was harmful but looked the other way. Divorce attorneys who use tactics like Mainz’ only increase the level of a couple’s distress, decreasing the likelihood of any reconciliation and increasing their financial hardship because of the steep litigation fees.
And after all, there is no money in reconciliation. Divorce attorneys’ work is to produce divorces for their clients and due to the vague wording, that is just what they have been successfully doing for the past three decades, overlooking the increased family carnage.
When the State Bar drafted the no-fault law in Texas, they made a small mistake. They left out the word "uncontested only" from no-fault’s wording. The legislature didn’t notice, because it was so clear in all the surrounding commentary of the enactment.
So when the no-fault law was published and the commentary disappeared, courts quickly forgot this important limitation. And divorce attorneys, recognizing the power they gained in the confusion of the 48 words in the law, could promise - with utmost certainty - that divorce would be granted.
Truncellito believes that leaders in the State Bar knew what was happening, but they didn’t tell anyone. Like Big Tobacco, they even went further and covered their tracks. For a quarter of a century now, Texans, whose spouses wanted to get divorced, were divorced whether they liked it or not. But that is not what the legislature intended. How the Texas Supreme Court handles this legal quagmire will be interesting, to say the least.
(Note: Truncellito’s appeal was finally dismissed - without comment - by the Supreme Court.)