Divorce as a Fundamental Right
October 5, 2022 - By: Rachel Godskind
Legally ending a marriage in the state of Ohio is no small feat. There are two avenues available to litigants interested in terminating their marriage: dissolution and divorce.¹ If both spouses can come to an agreement regarding any decision involving division of property, spousal support, custody and parenting time, and child support, the spouses may file together for a dissolution of marriage.² Although dissolution may be a faster path to ending a marriage than divorce³—the process can be completed in thirty to ninety days ⁴—a dissolution is still extraordinarily involved, and may require those seeking it to file seventy-six pages of forms with their local domestic relations court.⁵
If both spouses are unable to come to an agreement regarding some or all the aforementioned matters, they will need to file for divorce.⁶ A divorce may take anywhere from four months to two years to resolve.⁷ Furthermore, a divorce may require a litigant to not only file extensive paperwork⁸, but also, to attend hearings, conferences, and mediations.⁹ Ultimately, both divorce and dissolution proceedings can be expensive and can require litigants to have significant knowledge of the legal system. This is compounded by the painful emotions inherent to ending a marriage in even the most amicable circumstances.
Realistically, if a litigant can afford legal counsel to represent them in a divorce or dissolution proceeding—a cost that one law firm posits spans from about $4,000 to $8,000 in Ohio¹⁰—a skilled expert will help them though most of the grunt work of asset division, discovery requests, and court filings. However, if a litigant is unable to afford legal counsel and lacks access to free civil services, they will be left to navigate that relatively complex legal proceeding on their own. In this author’s opinion, this is a major access to justice issue.
In stark contrast to the complexities of divorce in Ohio, obtaining a marriage license in Hamilton County essentially requires seventy-five dollars and a government issued photo ID.¹¹ So long as an Ordained Minister of “any religious society or congregation within the state licensed to perform marriages”,¹² a judge, or a mayor perform the ceremony within 60 days, the couple is good to go.¹³
According to an April 2021 U.S. Census Bureau press release, “among ever-married adults 20 years and over, 34% of women and 33% of men had ever been divorced.”¹⁴ Although certainly not every marriage ends in divorce, termination of marriage does seem to be one of the likely consequences of getting married. This article will question whether the fundamental right to end your marriage follows from the fundamental right to marry, and if so, whether protections could or should exist to make the process of divorce easier and more accessible, particularly for low-income litigants.
In Loving v. Virginia, the Supreme Court struck down a Virginia law that criminalized interracial marriage.¹⁵ First, the Court held that the statute violated the Fourteenth Amendment’s Equal Protection Clause since it used race as a basis for imposing liability with no purpose other than “invidious racial discrimination” designed to maintain white supremacy.¹⁶ The Court then held that the law also violated the Fourteenth Amendment’s due process clause since the freedom to marry is a fundamental constitutional right.¹⁷ The court expounded that:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.¹⁸
Writing for the majority, in the landmark case Obergefell v. Hodges, Justice Anthony Kennedy reaffirmed the right to marry as a fundamental right protected by the due process clause of the Fourteenth Amendment.¹⁹ This is because the right to marry is “inherent in the liberty of the person” and the due process clause proscribes the states from depriving its citizens of “life, liberty, or property” without due process of law. Justice Kennedy then asserted that this fundamental right to marry applies equally to same-sex couples in the same way it applies to different-sex couples.²⁰ Even in light of the recent shakeup of precedent, the Court has continued to hold that the right to marry is venerated as a bedrock of our social order, and that the fundamental right to marry should not be frustrated.²¹
In her work—The “Holey” Bonds of Matrimony: A Constitutional Challenge to Burdensome Divorce Laws—Elizabeth Horowitz argues that under the current doctrine, there are many avenues for finding a fundamental right to divorce under the Fourteenth Amendment Due Process Clause.²² First, she argues that although caselaw refers to an explicit “right to marry”, none of the presiding cases imply that the constitutional protection of the marital relationship changes after the couple has exercised their right to enter the marriage.²³ Therefore, it is not just the right to enter the marriage that is protected, but also the relationship itself—including the right to end it.²⁴
This argument is bolstered by the Court’s conclusion in Griswold v. Connecticut. There, the Court held that the right of marital privacy protects a married couple from state intrusion on their right to use contraception.²⁵ In that case, the Court applied the Due Process Clause to forbid the state from encroaching on personal decisions inherent to the marital relationship. Although Griswold was not a case about divorce, the decision to terminate a marital relationship is arguably a decision inherent to the marital relationship.²⁶
Furthermore, in Boddie v. Connecticut, the Supreme Court held that due process prohibits states from denying access to the courts for individuals seeking to terminate their marriage solely because they could not afford the filing fee.²⁷ The Court in United States v. Kras declined to extend that precedent to the requirement of filing fees for bankruptcy actions. The Court differentiated the claim in Boddie from the claim in Kras by noting that the “judicial forum inBoddie touched directly... on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship.”²⁸
Horowitz argues that the laws of her home state, Illinois, unconstitutionally “infringe on the right to obtain a divorce in various ways.”²⁹ Although the laws do not put a blanket ban on divorce, much like the path to termination of marriage in Ohio, the legal process is “onerous and burdensome.”³⁰ She maintains that unconstitutional infringement on a fundamental right does not always require an outright ban of the fundamental right or protected activity.³¹
In fact, in Carey v. Population Services International, the Supreme Court held that a regulation prohibiting the sale of contraceptives to minors was unconstitutional under the Due Process Clause. Although the regulation did not impose a blanket ban on the use or even the sale of contraceptives generally, the court asserted that the "same test must be applied to state regulations that burden an individual's right to decide to prevent conception ... by substantially limiting the access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely."³²
It is evident that Ohio law need not place an outright ban on the termination of marriage to unconstitutionally infringe upon a litigant’s fundamental right to do so. As asserted in the introduction section of this paper, even dissolution is a costly, time-intensive, and complicated process. Further, the reality is that dissolution is not an option for many litigants—particularly those who have been impacted by interpersonal violence—since the process requires litigants to file together and agree on all fronts. Although litigants who can afford an attorney may be able to circumvent these complicated procedures by allowing an advocate to navigate the court system on their behalf, many low-income litigants are left to figure out an incredibly complex judicial system on their own. If divorce arguably is a fundamental right—as a corollary to the fundamental right to marry—Ohio’s current laws surrounding divorce may unconstitutionally infringe upon that protected act in a way that particularly harms low-income litigants.
Although there is not enough room within the space and parameters of this paper to discuss what divorce reform may look like, it is arguable that if a fundamental right to divorce exists under the Fourteenth Amendment Due Process Clause, the system as it exists impermissibly infringes upon that right. Terminating a marriage in this state is expensive, time-consuming, and legally complicated. Given the relative ease with which people can obtain marriage licenses, surely divorce need not be so inaccessible to any litigant who cannot afford representation. Divorce must not be some special right reserved for those who can afford it and gatekept from those who cannot.
Notes:
1. Divorce, Dissolution or Legal Separation, https://www.ohiolegalhelp.org/topic/end_marriage (last visited Sep. 10, 2022).
2. Ohio Dissolution Timeline, https://www.ohiolegalhelp.org/topic/dissolution-process (last visited Sep. 10, 2022).
3. Id.
4. Id.
5. See Getting a Dissolution, https://www.ohiolegalhelp.org/topic/dissolution (last visited Sep. 10, 2022). (Form Packet for Hamilton County Dissolution with Children available on this page).
6. Ohio Divorce Timeline, https://www.ohiolegalhelp.org/detail/divorce-process (last visited Sep. 10, 2022).
7. Id. (A divorce without children may take up to one year to resolve while a divorce with children may take two years).
8. See Getting a Divorce with Children, https://www.ohiolegalhelp.org/topic/divorce_kids (last visited Sep. 10, 2022). (Form Packet for Hamilton County Divorce with Children available on this page).
9. Id.
10. What Will my Divorce Cost?, https://kirklandsommers.com/what_will_my_divorce_cost/ (last visited Sep. 10, 2022).
11. Marriage License Process, https://www.probatect.org/marriage-license/marriage-licence-process (last visited Sep. 10, 2022).
12. Id.
13. Id.
14. Number, Timing and Duration of Marriages and Divorces, https://www.census.gov/newsroom/press-releases/2021/marriages-and-divorces.html (Apr. 22, 2021).
15. Loving v. Virginia, 388 U.S. 1 (1967).
16. Id. at 388.
17. Id.
18. Id.
19. Obergefell v. Hodges, 576 U.S. 644 (2015).
20. Id. at 646.
21. See Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228, 2227-2278 (2022). (Though a tremendous hit to substantive due process doctrine and reproductive rights, the majority asserted that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”)
22. The "Holey" Bonds of Matrimony: A Constitutional Challenge to Burdensome Divorce Laws, 8 U. PA. J. CONST. L. 877, 881 (2006). 2
3. Id.
24. Id.
25. Id. (citing Griswold v. Connecticut, 381 U.S. 479 (1965)).
26. Id.
27. Id. at 886. (citing Boddie v. Connecticut, 401 U.S. 371 (1971)).
28 Id. (quoting United States v. Kras, 409 U.S. 434 (1973)).
29. Id. at 888.
30. Id.
31. Id.
32. Id. (quoting Carey v. Population Services International, 431 U.S. 678 (1977)).