No-fault Divorce Law Faces Religious Challenge in Nebraska - Word&Way

No-fault Divorce Law Faces Religious Challenge in Nebraska

OMAHA, Neb. (AP) — A devoutly Catholic husband who refused to grant his wife a divorce on religious grounds urged Nebraska’s highest court Thursday (Sept. 3) to overturn the state’s no-fault divorce law in a case that could leave Nebraska as the only state without a law that lets couples end their marriage without assigning blame.

Michael Dycus is challenging a district court judge’s decision to approve the divorce, contending that his wife didn’t give a valid reason why their 33-year marriage failed. In oral arguments before the Nebraska Supreme Court, his attorney argued that the state’s no-fault divorce law violates the state constitution because it doesn’t allow him the same due-process and equal-protection rights that he’s guaranteed in other types of court cases.

In this screengrab from from Nebraska Supreme Court video, attorney Robert Sullivan addresses the Nebraska Supreme Court during oral arguments on Sept. 3, 2020, in Lincoln, Nebraska. (Nebraska Supreme Court via AP)

“One party will receive a divorce by testifying that in spite of efforts to save it, (the marriage) is irretrievably broken,” Dycus’s attorney, Robert Sullivan, said in his arguments before the court. “The other party cannot stop that. It’s like trying to hold back an avalanche.”

Nebraska’s no-fault divorce law, approved in 1972, allows judges to dissolve a marriage if both spouses declare that the marriage is “irretrievably broken,” or if one spouse makes that statement and the other doesn’t deny it. If one spouse disputes that the marriage is beyond saving, the judge is then required to consider what prompted the divorce filing and the chances that the marriage can be salvaged before issuing a ruling.

The case before the court is widely viewed as a long shot, but it’s caught the attention of religious liberty groups who argue that judges should have to order counseling or mediation if one spouse requests it.

“I’ve been a lawyer for 31 years, and I’ve never seen this come up,” said Robert Parker Jr., an attorney who represented Dycus’s wife, Debra, in the divorce proceeding.

All states allow some form of no-fault divorce, but Nebraska is one of 17 that offer it as the only option. Fault divorces require one spouse to allege that the other destroyed their marriage through infidelity, abuse, or other damaging acts. Critics say fault divorces encourage spouses to lie under oath and make it harder to end a failed marriage.

Parker said he considers the appeal so far-fetched that he withdrew as Debra Dycus’s attorney in January, after her husband appealed, because he felt badly charging her for representation in what he considers an open-and-shut case. No one appeared on her behalf on Thursday to argue her side before the high court.

“I can’t imagine that they’re going to touch a 48-year-old no-fault divorce statute,” Parker said. “I’d be absolutely shocked.”

One high-court justice raised a similar sentiment during Thursday’s oral arguments.

“This is a statute that’s been on the books for longer than I’ve been a lawyer,” said Justice William Cassel. “Isn’t it curious that it’s being brought up at this point in time?”

Some conservative, religious freedom groups argue that the issue gained new relevance following the U.S. Supreme Court’s 2015 decision to allow gay marriage nationwide. Sullivan noted that the majority opinion described marriage as “a profound union” and one of society’s oldest institutions.

“Why is it that marriage is held up as such a fundamental right, and yet it’s so simple to get out of?” he said.

Sullivan said Michael Dycus is pursuing the case because he objects to divorce on religious grounds and he believes that society isn’t treating marriage with the seriousness it deserves.

Nebraska’s no-fault divorce law allows one spouse to declare the marriage dead, and the courts “rubber stamp that” without giving the other spouse an adequate chance to argue why it should be preserved, said Matthew Heffron, an attorney for the Thomas More Society, which filed a brief urging the court to strike down Nebraska’s law. Nebraska does allow a spouse who objects to argue why the divorce shouldn’t be granted, but Heffron said it’s often just a formality.

A phone message left with Michael Dycus wasn’t immediately returned.

Deb Dycus declined to comment on the personal aspects of her divorce but said in an emailed statement that the case has no merit. She said she has been a practicing Catholic her entire life but considers her divorce a civil issue that has been publicly framed as a religious matter.

“Although it was not needed, more than two years ago I sought and was granted permission by the bishop of my diocese to approach the civil courts to settle the civil effects of a divorce,” she wrote.

Parker said most couples in Nebraska who don’t have minor children can get a divorce in about three months if they’re willing to cooperate. The Dycuses have children, but they’re all grown. Debra Dycus filed for divorce more than a year ago and likely won’t see a resolution until the Supreme Court rules.

“She’s miserable,” Parker said. “She just wants to be divorced.”