Challenge to Massachusetts No-Fault Divorce

Constitutional Challenge against Massachusetts No-Fault Divorce Law under Viewpoint-Discrimination

By guest contributor, Justinian

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On February 15th, the divorce defendant, Mark E. Dallmeyer, filed a claim that the Massachusetts no-fault divorce law is unconstitutional. See Motion to Dismiss. He’s inviting other divorce defendants to do the same.  In Massachusetts, six months after a plaintiff’s filing, the court can force a divorce on any defendant, simply because the plaintiff says that the marriage is “irretrievably broken”.

In the Fall of 2020, Marks wife, of nearly thirty-five years, filed a court complaint asking for unilateral “no-fault” divorce. From the beginning, Mark has contested this divorce. His pre-trial date is set for April 25, 2023. Mark says he found Mary’s Advocates’ coverage of a Pennsylvania husband’s constitutional challenge against no-fault divorce (Pankoe v. Pankoe), which inspired him to do the same in his own state.

In filing his motion challenging the Massachusetts unilateral “no-fault” divorce statute, Mark also challenges the Court’s subject-matter jurisdiction, which strikes at the core of state authority. Mark intends to take this as far as he can in order to bring light to what he believes is a void and unconstitutional law. Fundamentally, he argues that the “no-fault” statute in Massachusetts is a viewpoint-based statute, which requires the courts to discriminate between opposing viewpoints, namely whether a marriage is “irretrievably broken.” The U.S. Supreme Court has emphatically stated that the “legislative powers of the government reach actions only, and not opinions” (Reynolds v. United States, 1879). Mark argues that the question as to whether a marriage is “irretrievably broken” is a matter of opinion, which the government does not have authority to regulate. Moreover, the law cannot exist as a government-sponsored preference for the inevitable outcome that marriages brought to the Court are necessarily “irretrievably broken.”

The State of Massachusetts was recently handed a blistering 9-0 defeat in the recent 2022 case, Shurtleff v. City of Boston. This case was all about how the State of Massachusetts committed viewpoint-discrimination in violation of the 1st and 14th Amendments. In a similar vein, Mark feels that Massachusetts has overstepped its Constitutional limitations and is so drunk with power that it continues to enforce this unilateral “no-fault” divorce law that targets the opinions rather than the conduct of its own citizens. Ultimately, this law means that divorces are granted based on the State’s preferred ideological viewpoint. Among the many arguments that Mark puts forth in his Motion to Dismiss, viewpoint-discrimination in violation of the 1st and 14th Amendments is the central issue. Massachusetts was repudiated for committing viewpoint-discrimination in 2022 and it seems that it has yet to learn its lesson since the “no-fault” law is entirely about viewpoint-discrimination.

Though the Pennsylvania case (Pankoe v. Pankoe) was taken all the way to the Supreme Court of the United States (SCOTUS), the Court only agrees to judge about 1-3% of the cases that reach its chambers, per year. It is important to note that SCOTUS did not rule in favor or against the Pankoe case. It simply decided not to review the case and just denied the Writ of Certiorari request. Mark Dallmeyer believes that until the “no-fault” divorce issue is finally settled at the highest Court in the land, “there’s no reason why we shouldn’t keep trying to make our case in court.”

Mark can be reached at He is interested in corresponding with others who wish to challenge the “no-fault” law, who have just recently been served their copy of the plaintiff’s divorce complaint. He emphasizes the importance of acting immediately so defendants do not forfeit their ability to make their own constitutional challenge.

We will be watching this case closely and will provide updates as needed.


Feb. 15, 2023 – Mark’s Motion to Dismiss .

Excerpt from “Defendant’s Motion to Dismiss”

The defendant categorically denies the allegation that the marriage is irretrievably broken and contests this cause of action for divorce. In so doing, the defendant challenges the constitutionality of the unilateral no-fault divorce law in that the statute requires the Court to discriminate between viewpoints, namely whether the marriage is “irretrievably broken”. The state statute in question is G.L.c 208 sect. 1B. This motion requests the dismissal of the case in its entirety since there are no outstanding triable facts as to the underlying cause of action. The first question before this court is whether G.L.c 208 sect. 1B confers legal standing upon the plaintiff. The second and ultimate question before this court is whether G.L.c 208 sect. 1B is a viewpoint-based statute that communicates and/or endorses a government-sponsored preference for the outcome of divorce proceedings, in favor of the plaintiff. Everything else is a derivation of these two questions. The arguments presented hereto involve pure questions of law.

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About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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