Just a Race to the Lawyer's Office???

(Three Types of Mental Divorce)

By Patrick Donahue

Someone coined the term "mental divorce" to describe the teaching that a person that has been put away unscripturally may remarry scripturally if they divorce (in their mind) their former spouse because of their former spouse's fornication, such fornication having occurred either before or after the actual divorce. One of the most used arguments for this position is that if this is not so, then it just becomes a "race to the lawyer's office." The argument is that if a man cheats on his wife, and then divorces her unscripturally before his wife can divorce him scripturally, then that means that whoever gets the divorce first ("gets to the lawyer's office first") affects whether or not the woman can remarry in this situation, and that just can't be so! What is the answer to this argument? Some who oppose some of the types of "mental divorce," answer the argument by explaining a means by which the wife can remarry in this case, thereby hedging in their opposition to "mental divorce." But this is not the correct answer. The correct answer is that the possibility of scriptural remarriage on the part of the woman in this situation does depend upon who gets the actual divorce. Sometimes it is a race to the lawyer's office!

The First Type Of "Mental Divorce"

I mentioned that there are different types of "mental divorce." What I call the first type is when a man divorces his wife unscripturally and then remarries, thereby committing adultery after the divorce. Some say that the already put away woman can then remarry in this case by "putting away" (in her mind) her former husband for fornication. But Luke 16:18 directly condemns this scenario.

I believe that Luke 16:18b (
"and whosoever marrieth her that is put away from her husband committeth adultery") is a general statement that would condemn the remarriage of any put away person, whether that person has been put away for fornication, or for some other reason. But if this clause only applied to just one particular situation, it would apply to the mental divorce situation just described. Notice that the subject of verse 18a (the man) divorces his wife unscripturally, and then marries another, thereby committing adultery. So far this is the exact "mental divorce" scenario under consideration. Now the question is, may the man's former wife remarry because he is now committing fornication? Verse 18b directly answers this question. It says that if one marries that woman (the woman who has been put away unscripturally, and whose former husband has remarried therefore now committing fornication), it is adultery! How much clearer could Jesus have been on this situation?

Let me repeat, I don't think that Luke 16:18b refutes this mental divorce position only. That would be limiting the words to much less than what Jesus intended for them apply. But there is no way to get around the fact that Luke 16:18b does refute this one situation. If it refutes anything, it refutes this mental divorce position; the words of Luke 16:18 fit this mental divorce position exactly!

The Second Type Of "Mental Divorce"

Some who join me in opposing this first position will accept what I call the second type of mental divorce. The difference in the second type and the first type is that the man in the second type commits adultery prior to divorcing his wife. When a man cheats on his wife (commits adultery) and then unscripturally divorces her, the claim is made that since the husband has committed fornication, the wife has "grounds" and ought to be able to remarry, even though she did not actually get the divorce. Besides, if this position is not true, its advocates say, then it just becomes a "race to the lawyer's office." Though it is true that the wife in this situation has the grounds, just having the grounds is not enough. Nobody believes that just because a husband commits fornication, that the wife can remarry a second husband without first divorcing her first spouse. That would be polygamy! No, everybody realizes that she must first divorce her husband (for his fornication), and then she may remarry. Having the grounds is not enough; a person must divorce their spouse on those grounds to be eligible for scriptural remarriage. The conclusion?: a woman put away by a fornicating husband may have the scriptural "grounds" for divorce, but since she has already been put away, she has lost the opportunity/option of putting away her husband on those grounds.

At this point, the mental divorce advocates would like to call the unscriptural divorce, only a divorce "in the eyes of man," and therefore the woman put away by a fornicating husband still has the option of later divorcing (in her mind) her former husband "in the eyes of God." But this terminology doesn't do anything to help the position. Jesus teaches in Matthew 19:9b that whoever marries a put away woman commits adultery, and this includes (but is not limited to) the woman put away unscripturally. Let's read the phrase with that in mind: whoso marrieth her which is put away unscripturally doth commit adultery. Notice that the woman put away, even one put away unscripturally by a fornicating husband, is still a put away woman, therefore if she remarries, adultery occurs. Now let's read the phrase again using the terminology of those advocating mental divorce: whoso marrieth her which is put away "in the eyes of man" doth commit adultery. Clearly then, the mental divorce advocates' terminology notwithstanding, a woman put away by a fornicating husband commits adultery if and when she remarries.

The Third Type Of "Mental Divorce"

The third type of mental divorce is upheld by many who oppose the first and second types, in spite of the fact that it is just a subset of the second type. This position says that if a fornicating husband divorces his wife, and the wife tries to keep the marriage together, she may not remarry, but if instead the wife counter sues (but is unsuccessful), or if she lets it be known to the court and to the brethren that she is agreeing to the divorce because her mate has committed fornication, then she may remarry. Again the argument is made that if this is not so, then it just becomes a "race to the lawyer's office." But this argument from human reasoning and emotion will not hold up against Jesus' clear teaching. This position is condemned by exactly the same arguments that its advocates use to condemn the first two types of mental divorce. The basic answer is that just having the grounds, and divorcing for those grounds, are two different things. Jesus said that "whoso marrieth her which is put away doth commit adultery," and trying to get a divorce (but not succeeding), or agreeing to the divorce (agreeing to an unscriptural divorce is a sin anyway) because of the husband's fornication, does not change what Jesus said. If "trying to get a divorce" is just as good as "getting a divorce," then a woman who tries to get a divorce from her husband for fornication (said husband having no intentions of getting a divorce himself), but is unsuccessful (maybe the judge rules that her proof is insufficient), may remarry anyway! Polygamy would be justified after all.

So a woman who tries to get a divorce (but fails), or agrees to a divorce by her husband because he has committed fornication, is still the put away woman of Mt 5:32b, 19:9b, and Lk 16:18b, and therefore may not remarry scripturally. For a woman to be scripturally eligible for remarriage, three events must have occurred: (1) her husband must have committed fornication, (2) she must be the one to get the divorce (if her husband gets the divorce, even if she tried to divorce him but failed, she is disqualified), and (3) her divorce must be for (because of) fornication.
In all three mental divorce cases, only the first event has occurred, the second and third events have not occurred, and therefore the woman may not scripturally remarry.


Jesus' statement that "whoso marrieth her which is put away doth commit adultery" condemns the remarriage of a woman who is put away by a husband, regardless of whether or not that husband has committed fornication, and regardless of when that fornication occurs, before or after the actual divorce. And the same is true regardless of whether or not the put away woman tried to get a divorce. She either got a divorce for fornication or she did not; "trying" does not qualify her for remarriage, at least not according to Jesus' teaching. But someone will say, that makes it a "race to the lawyer's office." In this particular situation, the answer is, yes it is a race to the lawyer's office (using their terminology). Jesus teaches that not only is it important to have the grounds (fornication), but it is also important who gets the divorce. And that means that if both parties file for divorce, it is important who succeeds in getting the divorce first.

[Editor’s Note: Thanks to Pat Donahue for writing the article!
He may be reached at:
Pat.Donahue@MSFC.NASA.GOV, 4607 Old Railroad Bed Road, Harvest, AL 35749, (256) 721-0726.]

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