Religious Issues In Divorce

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Monday, March 11, 2013

A common and somewhat complicated issue in many divorces involves religion. In our increasingly diverse and heterogeneous society, interfaith marriages (where spouses are of different religions) have consistently increased. In these marriages, some couples agree to raise the children in one particular faith, whereas others agree to expose the children to both faiths.

Even when religion did not seem to play a large role in the lives of interfaith couples during marriage, at the time of divorce religion often takes on a central place of importance. For some spouses, having control over the religious upbringing of the children may be of paramount importance – and the other spouse may know this and attempt to exploit that fact in the divorce proceedings.

Federal and state constitutional protections of freedom of religious expression and the prohibition against establishing religion place family courts in a bit of a bind when dealing with religion in divorce. For example, a family court could not prevent one parent from exposing the children to that parent’s religion unless the court received sufficient evidence that doing so would cause the children significant emotional or psychological harm – a high standard. Similarly, a family court could not order one parent to participate in the religious activities of the other parent with the children because the State cannot force a parent to worship in a manner inconsistent with his or her beliefs. And a family court could not order one parent to pay for religious school with which that parent did not align because compulsory funding of religion violates freedom of conscience and puts the State in the position of endorsing religion.

Can a family court in Missouri deal with religion at all? Missouri courts consider religious upbringing an issue of legal custody, so if one parent has sole legal custody, that parent theoretically has the right to decide in what faith to raise the children. However, absent a finding of emotional or psychological harm, the courts cannot prevent the other parent from continuing to expose the minor children to his or her faith. In joint legal custody, the parents would be left to decide for themselves how to handle religious worship and education.

Courts generally do not want to involve themselves in religious matters. When parents have serious differences, the best approach would be for parents to mutually agree to raise the children in one particular faith. Courts will consider evidence of prior religious experience during the marriage and can weigh the sincerity of one parent’s religious commitment in evaluating whether to award joint or sole legal custody. Because of the risk of confusion to the minor children and the desire to remove religion as a wedge issue post-dissolution, parents should try and work through this issue with the focus on what will be best for the children. Suddenly finding religion at the time of divorce to extract something in return can result in losing legal custody and structuring physical custody to accommodate religious participation.

If you find yourself in an interfaith marriage with religion an issue in divorce, contact our St. Louis family law attorneys – we can help.