No-Fault Divorce, Best Interests of the Child, and the 'Intrinsic Fraud' Rule: The State as Enforcer of Fraud and Underminer of Families (Case Study with Original Court Documents, Document 5, 'the Judicial Temperament Impaired')

Abstract

A bedrock principle of American government, stemming from the social philosophy of government most famously enunciated by Thomas Hobbes (The Leviathan) and John Locke (Second Treatise on Government), is that the people agree to government in order to attain a more contented life (Hobbes) and so unite for the mutual preservation of their lives, liberties and estates (Locke). This principle is expressly invoked in the first independent Constitution of Maryland (11 Nov. 1776), which provides in Article I that [W]e, the Delegates of Maryland ... declare: That all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole. Inherent in this conception is the principle that citizen who honors all lawful and moral obligations, promises, and expectations of the State and its people shall not be at risk of the State using its force to dislodge him from his home and the opportunity to live with and raise his children. The widespread national concern over the U.S. Supreme Court's Kelo decision, regarding takings, is born of this principle. There is nothing so destructive of the legitimacy of the State as the risk that the State will use its power to throw man out of his own house and separate him from his own children when he has done nothing wrong. However, in Maryland, and likely in many other states, the family law has developed in such way as to present in powerful and tangible form the damaging result that the Kelo decision raised to nationwide attention. Because the process has been state-by-state, rather than in one nationwide court decision, and accomplished not through one high-profile deliberate legislative action, but through inadvertent intersection of three different legal principles developed largely by state courts, there has been no flash-point case to concentrate attention and discussion on what has occurred. I am submitting this court document in single dispute (in two related cases, divorce, and suit that the divorce was obtained by fraud), and related documents in that dispute, because the facts presented in this dispute may be seen by the national legal fraternity of law professors and law practitioners as just such flash-point case. The intersecting three legal principles are no-fault divorce, best interests of the child, and the intrinsic rule. Under no-fault divorce, dissatisfied spouse may obtain divorce essentially at-will. Under the best interests of the child, the children are to stay primarily in the pre-divorce family home, and the spouse that has been taking the most care of them in that home gets to stay there with them, unless the other spouse can prove in court that this spouse is so unfit that it is better for the children that this spouse be dislodged. Under the intrinsic rule, misbehaving spouse can violate court rules, hide material and substantial damaging evidence sought under the court rules, and lie under oath, and so induce the other spouse to enter into divorce settlement agreement, and once the agreement is incorporated into and validated by court order, subsequent revelation or discovery of that hidden evidence cannot be cited to challenge the agreement as fraud (unless the evidence is revealed in very short time; in Maryland, within 30 days after the order). The result is that stay-at-home parent – in the traditional family, this will typically be the mother – growing dissatisfied with the marriage, can engage in substantial misconduct, even injurious to the emotional health of the children, with very little State deterrent, secure in the knowledge that she can, virtually at will, in substance convert the birth-certificates of the children into an order ejecting the father from the house – and his conduct, his adherence to the expectations of the government and of society, cannot protect him in any way. Provided that the evidence of misconduct, even misconduct that demonstrates unfitness as parent, is kept hidden during the divorce proceedings and for 30 days thereafter, the result is that the State becomes the enforcer of the fraudulently-obtained divorce agreement, rather than deterrent to fraud. I am the father in the dispute presented in these documents, and the author of the documents (I do not presume to post documents authored by others). I am magna cum laude graduate of Georgetown University Law Center (1991), clerked for federal judge (Judge Andewelt, U.S Court of Federal Claims), and was an associate (1992-1999) and then partner (2000-2006) of the firm Arnold & Porter LLP. No doubt law professors and practitioners will use these documents as textbook examples proving the old adage that lawyer who represents himself has fool for client. But that is just another way in which these documents may be useful to the legal profession, however embarrassing they may be to myself.