Gospel Truths, Volume XVI, NUMBER 8 (August, 2005)
Posted with permission

“A Race to the Courthouse”

By Gene Frost

Much has been written on the subject of marriage and divorce of late, with seemingly every conceivable proposition being advocated. It is not my intent to address the subject generally, but one idea has been advanced which needs to be addressed, which if not corrected portends grievous consequences judicially. The charge is being made, whether properly or prejudicially is immaterial at this point, that “the crux of this controversy” is a race to the courthouse, that the one who files has every advantage in the dissolution of the marriage. He is granted parental custody of offspring and possession and control of property, to which the mate has no redress. Appeal is made to statutes in the state of Kentucky.

Before comment, we present the case as argued. In the Debate in Tulsa, between Tim Haile and J.T. Smith, brother Haile made the following statement (transcribed as best we could, though in a spot or two the recording was low or garbled):

“What about all of those brethren out there—there are some here tonight, that do a lot of writing—who believe the courthouse is the determinate in establishing the right of remarriage of the innocent party. Let’s talk about that for a little bit.

“What about those people who believe that? In the state of Kentucky, there is no right to counter-file for divorce. A lawyer told us that. Now let’s say the godless mate gets in his Corvette and he drives ‘lickity split’ to the lawyer, and then to the courthouse, and he proceeds to initiate and file for divorce against his godly, faithful, innocent spouse. … Let’s just say that the guy is a fornicator; he is sexually immoral. He hops in his car and heads to the courthouse. Well, you know what? It is admitted by lawyers in Kentucky that one thing that woman can’t do, who is put away, is go to the courthouse. That’s one thing, I’ll guarantee you, that she can’t do anything about it.

“You know what a guy told me? He said, “Tim, I appreciate your work on this.” He said, “I went, and my wife committed fornication against me.” And he said, “I went to the courthouse. I heard about it. I got the papers,” he said, “the day I found out she had been unfaithful to me.” No, this is not an emotional argument; this is a fact! This is a real case. How do you answer it from the Bible? I said, “What did you do?” Listen carefully. (I don’t think you guys are listening down here, bro. Smith.) Listen carefully. He went down to the courthouse, and he saw that the proceedings were advancing very rapidly. And he said, “I couldn’t accept this.” He said, “I thought I was going to be a ‘put-away person’ by this.” And he said, “So what I did was, I stood up and I said, ‘Your Honor, I object!’ And he said the guy said, ‘Sit down and shut up. You’ll be divorced either way.’ I said, ‘How close of a quote is that?’ He said, ‘Very.’

“Now think about this a little bit. You know the guy, the godless mate, may have taken the kids. No, the innocent spouse can’t now take the kids. The godless mate already took them because he rejected her. He rejected the innocent spouse, the faithful spouse, and he took the kids. That’s right. You can’t also take the kids now, because we have a man and a woman relationship here, and the man doing the putting away. What about the house? The fornicator says, “I’ll tell you what I’m going to do.” He’s a big burly man. “I want to keep the house.” His little petite wife can’t do a thing about it. “I’m going to keep the house.” No, she can’t also keep the house. We’re not talking about all of that. We’re talking about them doing the same thing. He says, Tim, I want you to get up here and tell us what that is. (By the way, I did not say that the Bible does not explain it. I said the Bible does not specify any precise procedure. Let’s represent things accurately. That’s what I actually said.)

“There is a lot of things that guy might do, that put her away, the putting away man might do that the put away person might not be able to do exactly. But there is one exact thing that they can do. There is one parallel. They can reject each other as their mates. They can disavow. Now God said, “I’m not going to let you do that with my approval unless it is on the grounds, on the basis, of fornication.” Matthew 19:9. So, you know, we have to clarify things a little bit there.” (March 11, 2005, Second Affirmative.)

The second quotation is by Weldon Warnock, writing in Truth magazine:

“In my opinion the whole crux of this controversy is over getting to the courthouse, at least in the United States. The innocent party must file or counter-sue for a divorce or he/she would be the put away and then not permitted to marry, as some reason. However, in Kentucky, as well as some other states, you cannot counter-sue, so says a Bowling Green, Kentucky lawyer who practices family law. He wrote: “There is no counter-suing.” This being the fact of the matter, I suppose it really is a rush to the courthouse, if no innocent put-away person may remarry when fornication is involved.

“What would you tell an innocent person who surprisingly gets his/her divorce papers in the mail and then learns the marriage partner is going to marry another? Or what would you tell the soldier who comes home from the war and his wife has divorced him and is married to another man? Then there are those whose fornicating spouse divorces them and they had no money to counter-sue in the states where permissible? May these persons do what Jesus said in Matthew 19:9? May he/she put away scripturally according to Matthew 19:9 who was unscripturally divorced? Does an unscriptural divorce prohibit an innocent spouse from scripturally putting away for the cause of fornication? Brethren, I did not introduce the preceding situations as emotional arguments, but rather what would you tell them, biblically?

“So, as some improperly reason, God is bound and regulated by what an ungodly spouse does in a loose, permissive court. Surely this could not be true! By the way, most courts in the United States will not permit divorce for adultery, but for irreconcilable differences or incompatibility. As one preacher said in response to this point: ‘God knows.’ Sounds a little like so‑called ‘mental divorce’ to me! Let me add in reference to marriage and divorce, we have to satisfy the legal requirements of civil government. We are to obey the laws of the land (Rom. 13) as long as they do not violate God's law (Acts 5:29).”

Both men refer to Kentucky law. Enumerating the supposed import of the law they cite, we note the following items that need to be examined.

1. There is no counter-filing for divorce.

2. The one being divorced cannot make a legal response or appeal.

3. The one who petitions for divorce has every advantage; he can make demands not available to his/her spouse.

4. One can be divorced and remarried without his/her spouse’s knowledge.

According to these brethren, there is no equal protection under the law, that is, under Kentucky law. Thus, it is truly a race to the courthouse; the first one to file wins everything: gets custody of children, possession of the house, and “lots of things” the one being put away is not able to do. Who gets to the courthouse first is the “crux,” i.e. the essential or deciding point; it is the “determinate,” or that which settles the question conclusively.

Whether one believes the argument or not is immaterial in that the entire representation of Kentucky law is a misrepresentation.

— 1 —

Is it true that there is no counter-filing for a divorce?

A counter-filing, or a counter-claim, is a claim by the defendant that arises from the same petition for divorce, and “represents the defendant’s right to have the claims of both parties counterbalanced in whole or in part.” This action “prevent(s) the courts from being swamped with multiple lawsuits by allowing” the demand for divorce by both parties “to be settled in one action.” [Family Legal Guide, page 254.] There can be no separate suits, with both parties in the role of Petitioner and Respondent filing separate suits, pertaining to the same action of a legal dissolution of their marriage. If this is what the “Kentucky lawyer,” who is quoted, referred to, this is correct, in which case his statement is used out of context. But to say that a Respondent cannot file a response to counter the claims of the Petitioner is false. No reputable Kentucky lawyer would say that a Respondent cannot counter and demand a dissolution on his/her own in the same divorce action, using the same court action number assigned by the court.

Kentucky law provides that a divorce petition may be filed singly, by either mate, or jointly. (They can arrive at “the courthouse” at the same time, i.e. they can plan for both to demand dissolution of their marriage in the same petition.) In either case, both may state his case and demand the divorce. The Kentucky Revised Statutes sets forth that:

“(3) Either or both parties may initiate the proceeding.

“(4) If a proceeding is commenced by one of the parties, the other party must be served in a manner provided by the Rules of Civil Procedure and may file a verified response.” [KRS 403.150 (3 & 4).]

Note that both parties may participate in the same petition. When a proceeding is commenced by one, the other mate must be notified and permitted to file a response, or counter-file, if you please. Both parties have equal access to the court. The law is designed to protect the rights of all parties involved in a legal dispute. This is elementary. In fact, after both have petitioned the court, if the Petitioner withdraws (drops his suit), it does not annul the counter-petition of the Respondent, in which case the Respondent becomes the Petitioner. “If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” [Kentucky Civil Rule 41.01 (2).]

— 2 —

Is it true that the one being divorced cannot make a legal response or appeal?

The very thought is ludicrous. The idea that when one party files, the other party “can’t do anything about it,” is patently false.

When one files for a divorce, the court does not proceed solely upon his request or desire. He has no more input than the Respondent. The Respondent may even deny that the marriage is irretrievably broken:

“If one of the parties has denied under oath or affirmation that the marriage is irretrievable broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation…”

He “may suggest to the parties that they seek counseling.”

“The court, at the request of either party shall, or on its own motion may, order a conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is irretrievably broken.” [KRS 403.170 (2)(b)].

In a divorce procedure, both parties may equally petition the court with a demand for divorce. A “demand” is “an assertion of a legal right; a forceful claim that presupposes no doubt of its validity.” [Family Legal Guide, page 317.] The Petitioner must file a Petition for Dissolution of Marriage that includes all pertinent information required by statute to be supplied, and state a demand for relief:


“1. Dissolution of the marriage.”

The Respondent then files a response to the Petition and also states a demand for relief:

“WHEREFORE Respondent demands:

“1. A dissolution of the marriage of the parties.”

Both petition the court for divorce! They have equal access to the law.

Further, in his/her response to the Petition the Respondent may state whatever he likes, even to charge a mate with infidelity—not as the cause or blame for divorcement, but in petitioning the court for equal and fair distribution of property, which would be proper in a case of dissipation (i.e. when one expends marital property with intent to deprive a mate of his/her proportionate share).

I have excerpts of a court case, in which this occurred:

“Wife presented sufficient evidence in dissolution action to raise a reasonable inference that husband dissipated marital assets; husband maintained a joint checking account with his mistress …” [Brosick v Brosick, Ky. App., 974 SW2d 498.502 (1998).]

The records even identify the paramour by name in this case.

When anyone says that a mate’s infidelity cannot be entered in a petition under any circumstance, he is mistaken. A mate may not be accused of infidelity as the cause (or basis) for dissolution, but can be when one’s rights are denied, as we have noted, as when assets have been dissipated.

— 3 —

Is it true that the one who petitions for divorce has every advantage; he can make demands not available to his/her spouse?

Some people have the mistaken idea, and it seems to be reflected in this question, that the one who files for the divorce, when it is granted, is granted the divorce. The truth of the matter is “the decree of dissolution … shall not be awarded to one (1) of the parties”; the decree works in behalf of both parties without prejudice. [Cf. KRS 403.130 (5)].

Just because one spouse, say the husband, is first to the courthouse, is it true that his wife loses out on everything? Some brethren are claiming that since the husband (in this case) arrived first at the courthouse, he can take the kids, possess the house, etc. The wife “can’t now take the kids” “because he rejected her.” He says, “I want to keep the house,” and the “wife can’t do anything about it.” “No, she can’t also keep the house.” This is an absurd scenario. It is a burlesque picture of our judicial system! It does not comport with reality. I cannot and I do not believe that a Kentucky lawyer gave such advice and information.

“But, what about the ‘guy,’ in brother Haile’s example, who showed up in court at the last minute and cried out, “Your honor, I object!”? If the full story be known, I doubt if he wrote a response as the Respondent. It sounds like he did nothing, waived his right to be heard, and at the last minute made an out-of-order protest—just a show to be able to claim he was unjustly put away. If someone will identify the case, who the “guy” is, when and where the divorce took place, it would be a fairly simple matter to determine exactly what did happen. Whatever, I know that he was offered proper recourse, to address the court and be heard.

— 4 —

What can one do when, without notice, he receives his/her divorce papers in the mail? Or, what of the soldier who returns from war only to find that his wife has divorced him and is married to another man?

First of all, it never happened! As we have already noted, when a divorce proceeding is commenced by one of the parties, seeking dissolution of the marriage, the other party must be served, or notified, in a way set forth in the Rules of Civil Procedure. A divorce cannot be obtained in a clandestine operation, so that the first inkling a mate would have that his marriage is dissolved is receipt of a letter deposited in his mail box. The idea contradicts the concept of judicial justice.

What of the soldier who returns from battle only to learn that his wife is his no more, but is now the wife of another man? It doesn’t happen. Federal laws have been strengthened to protect members of the military in civil action or proceedings. If a military defendant is not readily contacted, a “stay of proceedings” will be issued for “a minimum period of 90 days.” “The court may not enter a judgment until after the court appoints an attorney to represent the defendant.” [Service members Civil Relief Act of 2003 (50 U.S.C. App. 501 et seq.).]

These scenarios makes for emotional drama, but are bereft of reality.

A Warning

I have written this article as a warning primarily to young preachers, lest one repeats this “race to the courthouse” argument and concludes that civil authority has no place in ratifying marriage or a dissolution of marriage. All it is going to take to get some preachers in real legal difficulties is for some young man or woman to “divorce,” without a legal dissolution of the marriage, and “remarry,” without civil recognition of the union. Let such an one be hauled into court on charges of bigamy, to then stand before a judge, and argue that he/she divorced and remarried “in God’s sight” and didn’t need the sanction of civil authority. The judge will inquire, “Who told you that you were divorced and there was no dissolution in civil court? Or married, without legal recognition?” Let the poor misguided soul then answer, “Why, preacher (so-and-so) said this was God’s way!” I fear we are going to have some preachers in legal hot water if this tack is taken.

Really, a “race to the courthouse” is not an issue, much less the crux of the controversy. Before you take an emotional argument as “gospel,” be advised to learn the truth. On legal matters, consult the law … not preachers with an agenda. We would do well to read and heed Rom. 13:1-7 and Rom. 12:17.

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Last Updated:  Thursday, January 26, 2006 12:41 PM