Mass. Bill Would Ban Sex at Home for Divorcing Parents

Henri de Toulouse-Lautrec/The Yorck Project/Wikimedia Commons

Yes, you are reading that headline correctly: A measure proposed in Massachusetts would make it illegal for parents in the midst of divorce proceedings to engage in "a dating or sexual relationship" with anyone within the marital home. The mandate would apply not only until a divorce is final but until "all financial and custody issues are resolved." Is Massachusetts nanny statism trying to parody itself? 

It seems highly improbable this bill could pass the state legislature, let alone stand up in court. And even in some bizarro universe where this could hold up, I'm not sure how it could possibly be enforced (though it could sure muck up custody battles a little more). 

Still, I thought it was worth sharing as a particularly egregious example of politicians' overreach and arrogance. State Sen. Richard J. Ross (R-Wrentham) is behind Senate Bill 787, filed "by request" on behalf of one of his constituents. Here's the full text: 

In divorce, separation, or 209A proceedings involving children and a marital home, the party remaining in the home shall not conduct a dating or sexual relationship within the home until a divorce is final and all financial and custody issues are resolved, unless the express permission is granted by the courts.

According to MALegislature.gov, it's been referred to the Joint Committee on the Judiciary. 

Update: In the wake of the negative publicity this bill has been getting, Sen. Ross just issued a statement stressing that SB 787 was filed by request and that he is not the sponsor of this legislation nor does he endorse it. "First and foremost, I believe in the democratic process and true representation of the people," said Ross. "For that reason, when a constituent requested that I file a free petition on his behalf, I did so." 

Comments

[Agile Cyborg]

By Mr. Richard J. Ross (by request), a petition (accompanied by bill, Senate, No. 787) of Robert LeClair for legislation to prohibit certain activities within the home until a divorce is final and financial and custody issues are resolved. The Judiciary.

-------------------

So Rob has to be Rich's buddy or lover or something.

[Elizabeth Nolan Brown]

I'm not certain it's the same Robert LeClair, but there's a Robert LeClair in Ross' district who writes books about divorce and custody law. Maybe this is some strange attempt at PR on his part...

[Swiss Servator, mehr Spr?ngli]

"You want to understand the law here in MA, now? Buy my latest book wherever fine publications are sold!"

[gimmeasammich]

"Buy my book!"

[Scarecrow Repair]

I hope you nominated this for nanny of the month and surely nanny of the year.

[croaker]

Wonder how much publicity he'll get if his address is published and one morning he gets up to find a case of TP covering his lawn.

Senator Ross has demonstrated he has the IQ of a turnip. That so-called bill should have resulted in an "Oh, HELL no! I'm not taking the heat for your stupid idea."

I really wish we had a "New Texas" system here where politicians could be physically chastised for idiocy performed on the floor of the legislature. Ross deserves 24 hours in the stocks. LeClair should get 30 lashes on the steps of the Capitol.

[Rasilio]

While the law is stupid I can't say I really blame the guy who pushed the rep to propose it.

He's probably some devoted family guy who busted his ass off to provide for his family and stay at home wife. A wife who then had an affair, kicked him out of the house, took half (or more) of everything he owned and is now taking half or more of his paycheck while doing everything she can to make sure he never gets to see his kids. Meanwhile within weeks at most of kicking him to the curb she moved her boyfriend into the house and the kids are starting to call him daddy.

As for how it would be enforced, Duh, the whole point of the law is to give the guy something to use as leverage in a custody/support dispute because right now, especially in Massachusetts, he ain't got none whatsoever.

[Agile Cyborg]

If you are correct his problems are significant- but why do they deserve the attention of increased government intrusion?

[Fluffy]

It isn't increased government intrusion.

The state already asserts the right to dictate all aspects of child custody post-divorce.

[John]

What fluffy said. Once you go to court the judge determines "what is in the best interests" of the child. So if the judge doesn't approve of one parent's sex life, the judge can deny custody or impose terms on that parent as a condition of visitation.

Sure the judge can't tell you who you can sleep with. But the judge sure as hell can tell you who you can sleep with and how if you expect to see your kids.

[Agile Cyborg]

So the court system in this area has been given considerable leeway through legislation I imagine has been petitioned for over the years by those caught up in divorce. This seems to be all about affording irritated partners control way beyond their failed marriage even as they seek new partners.

[John]

More or less. It is really just the predictable result of letting judges decide family matters. It is certainly reasonable to think that if the mom is a whore and is bringing a different guy home every night, it would be in the best interests of the children to go with the dad. And if that is true, then the judge can effectively tell the mother "don't be a whore if you want your kids".

The only way to stop that result is to take away the power of judges to decide what is in the best interests of the children.

[prolefeed]

It is certainly reasonable to think that if the mom is a whore and is bringing a different guy home every night, it would be in the best interests of the children to go with the dad.

It is reasonable to think that sometimes in this situation the mother would be the best person to look after the kids, and sometimes the dad.

Having an active sexual life and being a good parent aren't mutually exclusive.

[John]

Prolefeed,

You miss my point. It is not that it is the only answer or even the right answer. It is that it is a reasonable answer. And since it is a reasonable answer, it is an answer some judges are going to give and therefore judges dictating people's sex life as a condition to their getting or keeping custody of their kids is a totally predicable result for giving judges the power to award custody on the basis of "best interests of the child".

[sarcasmic]

Having an active sexual life and being a good parent aren't mutually exclusive.

Introducing the kids to a new daddy every day isn't good parenting.

[prolefeed]

I'm thinking it takes a failure of imagination to believe that a woman (or a man) who is having an active sex life will necessarily be a less fit parent than the other parent. For example:

1) the other parent is also having an active sex life

2) the other parent is a sociopath, a child molester, a degenerate homeless gambler, a (insert some description worse than having an active sexual life).

And, bringing a date home every night is not the same thing as bringing a new daddy (or mommy) home every night.

[prolefeed]

Also, John is pushing the worst case scenario -- someone who has a different sexual partner every night (who John calls a "whore"). What about someone who dates another person for a month or two, then finds someone else to date, and then someone else to date after that? What if they date for a bit (or for quite a while) before having sex? Is this a harmful role model for children?

Basically, John is letting his socon freak flag fly, and so I called bullshit on that.

[robc]

I thought John literally meant a whore. As in bringing paying clients home.

[Rasilio]

Actually you all are pushing variations of irrelivant scenarios.

First off IANAL but the wording of this law is very specific and would only apply in very very limited situations and for limited durations while the divorce proceedings were ongoing and while there was a dispute about alimony, child support payments, or visitation.

It would also only apply in cases where the custodial spouse also remained living in the shared home.

The issue here is almost always going to involve a woman who either has already been having an affair or was on the verge of it with a new partner waiting in the wings and within days to weeks of the seperation at most has him moving into the home at least part time. It is not about a woman who now being free of the bonds of her marriage sleeping around promiscuiously.

[sarcasmic]

And, bringing a date home every night is not the same thing as bringing a new daddy (or mommy) home every night.

It's confusing for a young child. That's all I'm saying.

Suppose the kids start to bond with a boyfriend/girlfriend, and the relationship goes sour. Repeat that a few times and you've got a recipe for serious social issues.

[HellsBells]

Mom or dad can have all the sex they want with whomever they wish, just not in the place the kids call home.

[wwhorton]

Mom or dad can have all the sex they want with whomever they wish, just not in the place the kids call home.

"You can have any horse you want, as long as it's this one."

[Agile Cyborg]

Evidently a significant level of animus between divorcing adults has handed the government quite a bit of reign in this area. I find this startling.

[John]

You will find a lot of things about family law and child welfare law in general startling.

I frankly would get rid of the entire body of law. The damage done by CPS is far greater than any good such laws have ever done.

As far as divorce law goes, I would be honest and set a default of "the mother gets the kids". Sucks for men. But someone has to get them in the even of a divorce. And anything is better than the God damned judge deciding.

[Robert]

OK, so say you get rid of that entire body of law. What then when disputes arise? The body of law may be malignant, but it serves a purpose, and something is going to have to be in its place unless you want anomistic anarchy to rule in such cases, which would allow (practically require) for instance kidnapping.

However, such a sentiment is consistent for someone (don't know if it's you) who says to get gov't out of marriage, because that's part of family law. It's like saying gov't should not take sides in issues like abortions, which would mean pro- & anti-abortionists would be allowed to literally shoot it out with impunity (since nobody would have a right to have an abortion, i.e. to keep someone from keeping someone from having an abortion, nor a right to keep someone from having an abortion).

[Bones]

Defaulting to "mom gets the kids" is the root of a great many problems, and that default COMES FROM judges most of the time! The default should be joint custody. Start at joint custody and then if someone has evidence of abuse against the other parent, bring it up and prove it. Family law seems to be the only place where evidence isn't required to strip someone of their rights.

[Mickey Rat]

This is one those where the law is bad because the issues it is trying to address are not tractable and wishing the issues away does not work.

[tarran]

It sucks for the kids whose mother is mentally ill too.

But yeah, the machinery of law runs much more smoothly when you reduce the use of facts as an input.

[Notorious G.K.C.]

What if the father is innocent of marital misconduct (and this applies to mothers too)?Remains faithful, does his/her conjugal duties, doesn't abandon the spouse, stays out of prison and the nuthouse, is sober, doesn't abuse the kids, etc. And the other spouse is a cheater, drunk, etc, or just walks out. Shouldn't the innocent spouse get the kids? As for the argument that the guilty spouse may be the better parent: if you're the better parent, prove it by avoiding irresponsible behavior which could lead you to lose custody - if you're such a great parent, you won't want to endanger your custody rights, will you?

I would revive the idea that the innocent spouse

[Notorious G.K.C.]

gets the kids. What an incentive to good behavior!

[Gary T]

See what CPS becomes after being given unchecked power over parents.
They start substituting their own parenting decisions for yours, and threaten to take your children if you don't:
CPS Interrogation:
http://youtu.be/NIsnbUxAPhs

[AlmightyJB]

"As for how it would be enforced"

Mommy an mommy's new friend have a lot of pictures to hang on the wall in mommy's bedroom so please leave us alone and ignore the banging on the wall.

[Fist of Etiquette]

You invite the state as a third party to your union, this is what you get.

[robc]

4th party, at least for many weddings.

[sarcasmic]

filed "by request" on behalf of one of his constituents.

Translation: Somebody's wife kicked him out of the house and is already banging some other dude.

[Swiss Servator, mehr Spr?ngli]

Yes.

[JW]

Wait, my ex moved to Mass.?

[RBS]

This is pretty common in Family Law.

[RBS]

Not the statute part but the restraint against fucking your new lover in the marital home before the divorce is final.

[Agile Cyborg]

Has this ever once been enforced?

[Swiss Servator, mehr Spr?ngli]

I've seen it get used in Court (in Kane County, IL) to slap around the party who had the "paramour" (yeah, the Judge actually used that term). Usually it was a pry bar used on the visitation dates/terms.

[Agile Cyborg]

Interesting.

[Freedom Frog]

What about sex with each other?

[prolefeed]

That would be prohibited too by this wording.

[Rasilio]

In many, possibly most jurisdiction sex with your spouse while going through divorce proceedings would put an immediate halt to the divorce

[GroundTruth]

That was actually how it came across both here and on the idiot box this AM.

The amazing thing is, having been an inmate in Taxachusetts for three decades, I had no trouble believing that was the actual thrust of the bill.

[Robert]

When I read the headline, indeed most of the article, that's what I thought it meant, i.e. just that. I still thought it ridiculous, but at least saw a rationale for it, i.e. you're waisting the court's time if you're not serious enough about divorce to stop having sex w each other.

[robc]

Until the comments, that is what I thought too.

[Brandon]

I actually that that that was the only thing banned by this wording.

[Rasilio]

Oh yeah, and the Feminazi brigade was on this pretty damned quick. Last night I saw memes decrying Republicans attempts to make it illegal for divorced women to have sex even though the proposed law does no such thing.

It applies to every custodial parent regardless of gender (what's that you say, that always means the woman? Maybe we should do something to change that imbalance then), it does not make having sex illegal it makes it illegal to have dates within the home you shared with your soon to be ex, you are still free to go out on dates and get as freaky as you like at a hotel or your new love interest's house and finally you can actually have your lover over if you get it approved by a family court judge and well obviously since they always rule in the best interests of the child they would only bar you from having sexy sleep overs if it would be dangerous for your child to see that and really who could oppose such a thing?

[Agile Cyborg]

"best interests of the child"

That was already fucked up by the divorce. Even under questionable terms I cannot imagine anyone agreeing to allow the government to police sex between consenting adults behind closed doors no matter where those doors are located.

[Notorious G.K.C.]

What is divorce law if not policing sex and just about everything else in a relationship?

[Agile Cyborg]

You tell me. I just find it egregious for anyone to expand the role of government for whatever reason within the context of non-violent relationships, however failed.

[Notorious G.K.C.]

Divorce law already regulates your property and child custody, and submits child-rearing disputes in many cases to a judge. How much more regulate-ey can you tet?

[Rasilio]

Forget for a moment that this is the government. You have a contractual relationship which has become toxic and yet cannot ever be entirely ended because of a mutual ongoing commitment (aka children) therefore the parties to the contract seeks the aid of a dispute resolution agency. That is all that is going on here. Yes it is stupid for the couple to allow the state of their relationship to reach the point to where they cannot come to reasonable co-parenting and child support arraingements but the fact is they cannot and so dispute resolution is required and only the most hardline anarchists would argue that there isn't a legitimate role for government in that process.

[prolefeed]

This anarchist separated from his wife and reached an amicable dispostion of property and child custody without resorting to government courts.

I agree that some dispute resolution agency is needed for non-amicable situations, but that only government can fill that role? Not so much so.

[Robert]

I there a difference between "dispute resolution agency" and gov't?

[Rasilio]

Government courts are a type of dispute resolution agency. Not all dispute resolution agencies are part of or sponsored by a government.

It could just as easily be a religious body that performed the marriage, an agreed upon arbitration agency a clan council of elders, etc.

[Ken Shultz]

I think there's something to the suggestion that only government can fill that role.

It isn't just that you're enforcing contractual obligations between the parents--and there is that! If you promise to take care of a woman so that she can devote her time to taking care of four kids that you fathered, and then you decide later, you want out? There's a legitimate role for the government in enforcing that contract.

But there's also the question of your legal obligations to your children. Who imposes the right small children have to their parents' support sans government?

You can call it something other than government, but when I'm talking about government, here, I'm talking about the body responsible for enforcing people's fundamental rights.

Adults may be able to enforce their own rights without any body like the "government" involved, but small children can't. Like I said, call it whatever you want if you don't like the word "government", but there needs to be some body whose job it is to protect and enforce the rights of people who can't protect themselves.

[robc]

It isn't just that you're enforcing contractual obligations between the parents

They arent even doing that. Most people have vows (oral contract with witnesses) much stricter than the no fault divorce laws. At this point, I think every single state is ignoring marital contracts.

[robc]

Its yet another advantage of separation of state and marriage. The state can get back to just enforcing contracts.

[Ken Shultz]

That's what it should be!

Marriage should be a contract, and that's it.

I would argue our obligations to our children can be seen as contractual, as well, in that we willingly accept them when we willingly engage in an act that might create them. It's like an assumption of risk.

How to enforce those assumed contractual rights for small children and other people who can't defend themselves is a question I can't answer without using something like government either.

It's not just children. I believe we may have a contractual obligation to take care of our elderly parents. If the government weren't shitting all over that obligation with Social Security and Medicare, that would be much more obvious--like it is to people in developing countries who don't have those social programs.

There are the rights of the dead. Who enforces my rights when someone murders me if not something like the government?

[Ken Shultz]

Massachusetts makes California look sane by comparison.

If right wing religious nuts proposed this, the media would be having a field day.

[prolefeed]

Ummm, the bill was proposed by a Republican. "By request". Which means that the bill's author, or the person who requested the legislator propose it, could very well be a right wing religious person.

[Ken Shultz]

Then it's a conspiracy. Somebody get Jesse Walker on this, quick!

Phelps dies, so they had to manufacture a right wing religious freak figure to run against in Massachusetts?

I knew it would come to this!

[Rasilio]

Pretty sure he is either a Mens Rights or Fathers Rights activist.

[R C Dean]

Their url is mal-legislature? Seriously?

[prolefeed]

Sounds like the bill's author is trying desperately to distance himself from this -- from his Facebook page:

"I have heard from numerous constituents and residents of the Commonwealth regarding Senate Bill 787, An Act relative to divorce. This was a free petition that I filed at the request of a constituent. I am not the sponsor of this legislation, nor have I ever endorsed or spoken in favor of it.

The Massachusetts Executive Office of Administration and Finance defines a 'free petition' as: 'In Massachusetts all citizens have the right to petition the state legislature. This procedure is called the right of free petition. A citizen drafts and files a Petition and accompanying Bill. A legislator sponsors the Bill in the General Court. If a legislator disagrees with the contents of the Bill, he/she may indicate this by placing the phrase "By request" after his/her name.'

First and foremost, I believe in the democratic process and true representation of the people. The Commonwealth of Massachusetts was built upon these ideals, and serves as a prime example of the legislative process. State government is not reserved solely for those who have been elected. It belongs to every citizen of Massachusetts. For that reason, when a constituent requested that I file a free petition on his behalf, I did so. While the proposal is not one that I support, I do support his right to participate in state government."

[Elizabeth Nolan Brown]

Yep. I just got this in press release form.

[taker]

Legal marriage for gays is not a good idea because legal marriage is not a good idea. This kind of nonsense demonstrates that.

I believe libertarians would better petition for the removal of marriage from the legal lexicon and allow consenting adults to form whatever association they desire, and indenture themselves as the like to another human being or a number of them.

[GroundTruth]

So say we all!

[Notorious G.K.C.]

Who's "we," kemo sabe?

[AlmightyJB]

I would like someone to file a free petition for me to dissolve the government.

[Elizabeth Nolan Brown]

Get a constituent to send it to Ross! He apparently files everything...

[AlmightyJB]

What about sex with the person they are divorcing? Didn't see an exemption?

[Rasilio]

Don't know about Mass law but most states require some sort of legal seperation period before the divorce can be made final and any sex between the parties during that period ends the divorce proceedings (or at least restarts the seperation period)

[Art Stone]

My initial reaction from the headline was the purpose was to prevent fake divorces where the couple continue to live together but the wife files for social services benefits like subsidy for Obamacare premiums. Then I realized governments want you to milk the system. What was I thinking?

(209a is an forced separation due to alleged physical abuse)

If this went into affect, would it apply to gay marriages?

What if the children are not living in the marital household after the separation? (Mom takes the kids with her and lives somewhere else)

[JW]

When I got divorced, it was made clear that any sexy time with the soon-to-be ex would start the separation period (12 months) all over again. You could one day short of that magical day and any drunk, pity sex at 11:59 PM would start the clock over, presuming that somebody told.

Illegal? Not in the literal sense, but it was a violation of divorce laws to hook up during the split up.

[JW]

To clarify, that was between the divorcing people.

Since you were still legally married until the divorce, sex with anyone else could be considered adultery, but that scenario was pretty moot by then, especially considering the adulterous witch I was married to.

[Stormy Dragon]

I wonder if that law is still enforcable post Lawrence v. Texas.

[JW]

I'm not sure why that would matter. It wasn't the type of sex, just that you had it at all.

[Rasilio]

Yes, it is not the sex that is the problem but the fact that the government does not owe you a divorce. You don't even need to have sex, a romantic dinner date would be enough to do it if the judge heard about it.

[Xmas]

Adultery is a crime in Massachusetts. Even the Mass Bar Association is unsure if the Adultery laws are incompatible with Lawrence. With more recent decisions declaring marriage to be a fundamental right for couples of any gender, it's possible that court backing of adultery laws will be even stronger.

Mass Bar on Adultery

Adultery, as the Stowell court recognized, presents the opposite situation. In what is surely one of its least controversial holdings, the SJC took judicial notice that "the act of adultery frequently has a destructive impact on the marital relationship . . . ." To say that threats to marriage are a particular concern of the Supreme Court's fundamental rights jurisprudence understates the matter substantially - marriage is practically the Court's Platonic ideal of what an intimate relationship is. The seminal case in constitutional privacy law, Griswold v. Connecticut, is grounded in the "sacred precincts of the marital bedroom," and (in perhaps the highest imaginable praise from the Warren Court) implies that marriage might be more important than the Bill of Rights: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system

[Paul.]

Blue state, yeah? My body, my choice, yeah? Sexual freedom, yeah?

[Dr No]

The problem here is not the bill. Obviously it's terrible. The problem is blaming Rep. Ross. He actually did the right thing in this case; he is required by the Massachusetts state constitution to submit any bill properly submitted by a MA citizen. Required. I heard him on the radio today, talking about how he had no love for the bill, had taken all sorts of flak for it, but submitted it because that was his damn job.
A legislator actually following the law? Hell. It really is the nail that sticks up gets the hammer.

[Art Stone]

If true that he is required to submit the bill, libertarians could have a field day with this - either proposing things like repealing taxes or the other way - proposing really extreme stupid laws like making it illegal to park your car with the windows open.

[GregM]

According to the Massachusetts Attorney General you are correct: https://www.sec.state.ma.us/trs/trslaw/lawidx3.htm There's some ambiguity about whether a legislator is "sponsoring" a bill he doesn't approve of though. I'm going to guess that that argument will be settled in favor of Senator Ross.

Like Art Stone, I'm very surprised that this provision of the Massachusetts constitution is not used mischievously more often. Alternatively, it is but the silly laws introduced under the citizen's petition only rarely get press coverage and are generally disassociated from the legislator required to introduce it.

[jimpeel]

Only in Massachusetts.

[Rick Sincere]

This is just the sort of thing we'd expect from the first state to legalize gay marriage. Get the gays to marry, then prohibit fooling around while they're getting divorced.

[Ladybug0617]

They are crazy as heck. Ok, so how are they gonna kiss and make up and possibly not divorce... simply ludicrous!!!!!

[Michael Price]

"State Sen. Richard J. Ross (R-Wrentham) is behind Senate Bill 787, filed "by request" on behalf of one of his donors. "
Fixed that for you.