"Basically, people get married without the understanding, explaination or knowledge of the laws of the land."
Come on now. Do you really believe that people don't know the law with the prevalence of divorce in their every day lives? That is nonsense.
That is nonsense. I believe that most of them know almost nothing about it when they get married, but by the time the divorce comes they may have finally learned the absolute minimum that they really should have known prior to the marriage. Even if they could have known this beforehand, and even if their eighteen and twenty year old minds had been capable of encompassing anything so convoluted, marriage law and particularly the property division aspects of it are inscrutable. What they will be, in a particular case, can only be discovered when the judge renders his decision--and the version of “the law" represented by this decision may only be valid in the particular case in question until and unless overturned on appeal.
In my own situation I was all of nineteen years old when I first heard about this nonsense, and as it was explained to me at the time, you had to be married AND RUNNING A BUSINESS TOGETHER to come under the control of the particular law we are discussing. I think the way it was stated to me was something like, "There is a law which can divide everything a married couple makes equally between them, no matter whose name it is in. This is so that if they are running a farm or a ranch together, and they both have to work on it, they will share equally in the income." and, of course, as I had been told since infancy, "In the U.S. a person is considered innocent until proven guilty." The first statement made sense to me, particularly when considered in light of the second. The combined meaning, which still makes sense to me today, is that if a couple are PROVEN to be running a business together, then the income is equally shared by them under law. Of course the reality turns out to have little, if any, relationship to this common sense and just version which I formerly believed to be true!
As an example of what I mean, even after studying this subject for many years, I still don’t know if section 3.003 of the Texas Family Code trumps section 7.001 or vice versa. I further don’t know if more recent case law providing that “presumption of equal division of community property” (not to mention presumption of community property itself) is only a “starting point” and that the ultimate distribution of this property can be determined by “a number of things” including “wastage of the marital assets, the health of the parties and need”, would trump the statutes mentioned or not. Nor do I know in how one-sided a manner the so-called “marital assets” may be distributed under such nebulous law. Could all of them be given to one party? If so, then a court could steal everything a person has by first classifying it as one-hundred percent community property, and then, supposedly under the considerations mentioned, arbitrarily giving all of the community property to one party! Perhaps section 7.001 would trump all of the rest, as one attorney has suggested to me, thus making the judge in the case essentally a tyrant and making all such "law" superfluous! Do you know the answer to these questions? No, of course you don’t. All you will have in reply are opinions or citations of other meaningless, argumentative case law--if even that. But then, if there were such answers there would be no need for lawyers, who get paid to argue. To me this is all just ridiculous, meaningless, self serving and exploitative nonsense promulgated by demagogues, implemented by tyrants and used as an income vehicle by lawyers and the entire divorce industry!
Moreover, the presumptions created under marrital laws are not unlike other loaws like the Implied Consent laws in states. If you avail yourself of the privilege to drive, you implicitly consent to provide a breath, blood or urine sample if there is probable cause to believe you have been operating under the influence and, if you do not, you lose your license.
Apples and oranges again. You are even mixing criminal and civil law. For the analogy you are making to be valid, and for "implied consent" to be comparable with the law under discussion, the ”probable cause” you mention would have to be enough for conviction, unless you could somehow disprove that you were driving under the influence with the burden of proof being upon you. You would have to have immediate access to a certified and calibrated breathalyzer and a trained technician to operate it--all at your own expense--to even have a chance of rebutting an officer’s “probable cause” that he thought he saw you driving in a manner that could have indicated intoxication. Losing your right to drive, while inconvenient, is hardly as serious as losing one-half of everything you have!
Being at a disadvantage because of how a Judge applies the law is far different than claiming that the laws are somehow unconstitutional in their creation.
True. But is being at a disadvantage because of the arbitrary way a judge may be allowed to apply ambiguous , unconstitutional and self contradictory laws really any worse than the existence of these laws in the first place?
Regardless, the discussion with jbar is pointless. He will tilet at windmills with his own brand of ignorant hostility whether or not there is truly a legitimate legal point to be made.
I leave it to lawyers to make legal points. I only deal with common sense and the innate sense of justice that we are all born with.
Even tilting at windmills can eventually be productive, if you keep it up long enough, and have enough help!
Edited by jbar (04/23/08 07:54 PM)