Unfortunately, the title of this post probably would be instantly readable to anyone grinding through our divorce system, which approaches many things in a impressively backwards way. Why do I say backwards? Well fundamentally because the law is approached in a backwards manner: In a criminal trial, a citizen is presumed innocent until proven guilty, and he cannot be punished without a jury of his peers finding him guilty. Things don't work that way for a man caught in the family court system, a system so bizarre and wrongheaded, that it reminds me of Bosch's vision of hell in his painting 'The Garden of Earthly Delights'.
The way the courts do work, is that you are guilty until proven innocent, and your right to due process, when honored, is honored post the imposition of the punishment for your purported crime. Let's review the ways in which this happens:
- If a woman wants her husband or partner out of the house, she can file for a protection order that gets him out, and prevents him from having contact with her or the children. As we have seen in 'U is for Unequal', our judges have been trained to grant these orders by default, rather than potentially allow some predator access to the wife and children he has been living with every day and night for the last several years. It can take months for the man caught in this situation to clear his name and even get access to his children. Meanwhile, he has been deprived of his residence with no notice, and without a hearing. So much for not depriving a person of his life, liberty or property without due process.
- She can also file for divorce and interim support and at the same time, freeze her husband's assets. The man suddenly finds himself paying, potentially through wage execution, a court ordered child support and alimony number, without anything resembling an actual jury trial, and certainly without regard to fault. The speed with which all this can happen is mind-boggling. Actually getting the divorce to trial, and getting a settlement will take many months, and the wife will likely be in no hurry to move this process along, as the judge might order her to begin the process of selling the marital house, or reduce the emergency support order that he issued when she first filed, which may be higher than the court would eventually discover was required.
- If the man falls behind in his payments, whether due to unemployment, financial difficulty, or just plain a stubborn sense that he is being enslaved or peonized, the full weight of the courts come down on him, garnishing his income with the state taking in many cases up to 65% (this is the NJ number). The non-payer's assets (accounts, car, boat, house) will be seized, (or liens will be taken out against them) and he may have his license revoked and be thrown into jail, all before there is even a hearing on his ability to pay.
In each of these cases, the assumption of the court is that the lip-service to due process (the man's right to a trial) can be taken care of at some future date. It is my contention that justice delayed is justice denied. Men are regularly taken to the cleaners by the system, and if the court ever recognizes an error, it usually only corrects the inequity going forward (ignoring the months of suffering, loss of home, freedom and assets, legal fees for himself and his wife, and any other overpayments that occurred in the past), mostly because the wife "doesn't have the ability or liability to pay restitution" for all this. ...Somehow these issues were not considerations when the system was punishing the man. And when the court does in the odd instance recognize an inequity and award the man some restitution for overpayments, his ex-wife has likely spent this money already, and it will never be collected back. (Good luck getting the courts to respond to this full court finding of debt anywhere near as agressively as they did when the husband was alleged to be a deadbeat, if they act at all.)
Similarly, men are expected to be psychic. They are supposed to know that they owe child-support and alimony from the moment of separation, and should be paying it, even though no court finding exists showing what, or even that they need to pay. If they do not pay, they will likely be hit with a huge bill when the divorce finalizes, -and they cannot wait for wage execution to kick in, because the lump owed once penalties are added in may be unpayable. Effectively, men are treated as having a liability whose magnitude the courts decide after the fact.
Hmmm, doesn't this remind you of ex post facto laws? Doesn't the idea of finding people liable and punishing them first, and trying them later rub your sense of due process the wrong way? Sure it does, but that's the divorce court world for you, all backwards, deciding your guilt or innocence after punishing you. And one of the reasons that this kind of behavior is supposed to be prohibited by The Constitution of the United States is that it is very difficult for a court or any ruling body to admit that it did the wrong thing after the fact, and very hard to properly restore rights and provide restitution to people after they have been punished and had their rights taken away.
Simply put, Family Law is a horror show of unearthly proportions. Welcome to the Garden.
-M
(The last image is from the online Artchive)
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