“If [Ken] Cuccinelli had it his way, a mom trying to get out of a bad marriage, over her husband’s objections, could only get divorced if she could prove adultery or physical abuse or her spouse had abandoned her or was sentenced to jail.”

–voiceover of Terry McAuliffe ad, “Interfering”

This ad poses a fact-checking conundrum. Indeed, our colleagues at PolitiFact Virginia have already labeled it “mostly false.” But, no disrespect to PolitiFact, the more we looked into it, the more we decided the ad was mostly true; indeed, the line above is completely correct.

It comes down to context, which we acknowledge can be subjective. The missing context that led to PolitiFact’s ruling is that Cuccinelli, as a state lawmaker, did not single out women when he proposed laws regarding divorce. (Update: On Sept. 26, PolitiFact Virginia changed its ruling to “half true.”)

But there’s other, perhaps more important, context as well—notably that Cuccinelli’s proposals were part of the legislative agenda of so-called father’s rights groups. Cuccinelli could not offer a law that specifically targeted women, but the practical effect of his proposals is that mothers would be shortchanged compared to current law.

We’ve been tough on a number of McAuliffe’s claims, but this assertion stands up relatively well. Let’s take a closer look.

The Facts

As detailed in August by Ben Pershing of The Washington Post, Cuccinelli has a close relationship with the fathers’ rights movement, which is made up of activists who argue that the legal system does not treat men fairly in divorce and custody cases. That is not Cuccinelli’s belief, his campaign has said, but Pershing documented how Cuccinelli championed a number of bills that had won the strong support of such groups.

A particular target of Cuccinelli is no-fault divorce, which he acknowledges is a political hot potato, as shown in this video clip from a speech he made to Virginia Christian Alliance in 2011. “I’ve done that by trying to do things like end no-fault divorce, take care of children, actually prioritize children when parents are having conflict in the law,” he said. “And I tell you what, you want politically uncomfortable, that’s a very uncomfortable place to be.”

Under Virginia’s current law, there’s no such thing as a quickie divorce. A couple seeking a no-fault divorce must separate for at least year before they can be granted one. Many couples find that route preferable to arguing over–and proving–such claims as adultery, even if that is the cause of the break-up.

In 2008, as a state senator, Cuccinelli proposed to make it impossible, in marriages with minor children, for a spouse to file for divorce under this procedure if the other spouse filed a written objection. As Cuccinelli put it in a 2008 speech: “What we’re trying to do is essentially repeal no-fault divorce when there are children involved.”

But, as McAuliffe’s ad stated, that also means the spouse seeking a divorce would need, possibly at great expense, to make a case for one of the other grounds, such as adultery or physical abuse.

McAuliffe’s ad, designed to take advantage of a gender gap in the race, emphasized the impact of this shift from the perspective of the woman. For instance, here’s what the state of Virginia says about proving adultery: “Proving adultery is very fact-specific. The evidence must be strict, satisfactory and conclusive that the other spouse did in fact engage in sexual relations with another person.” So if a no-fault divorce is not available, that’s the burden that a woman wanting a divorce would need to climb if Cuccinelli’s proposal had become law.

As far as we can tell, Cuccinelli has never said he was targeting women. Cuccinelli, in campaign literature in 2007, offered this reason for his tough stance on divorce:

“We must strictly enforce court orders related to custody and make sure custody decisions are based on the best interest of children. Studies show that the dissolution of marriage has long term negative impacts on children and those marriages that last for five years are much more likely to go the distance. For this reason, the state has an interest in marital preservation. I support family law reform that establishes mutual consent divorce and requires counseling where children are involved, unless abuse is involved.”

But, as we noted, Virginia currently does not allow quick divorces. Research shows that, financially, women have the most to lose from a divorce, especially if they have dependent children.

Besides the bill that forms the basis of McAuliffe’s ad, Pershing documented two other instances of Cuccinelli sponsoring legislation that found favor with father’s rights groups.

As a state senator in 2005, Cuccinelli offered a bill that would have made it so parents initiating a no-fault divorce could have that action counted against them “when deciding custody and visitation.” The measure never came to a vote, but Cuccinelli won praise from Stephen Baskerville, then-president of the American Coalition for Fathers and Children, for fighting against the no-fault divorce “epidemic.”

Cuccinelli also was the lone Senate vote against legislation to increase child support payments by tying them more closely to inflation. The 2006 measure passed 39-1, but stalled in the Virginia House of Delegates. Baskerville said the bill was an attempt to “railroad through higher child support, though it already is at punitive levels.”

Just as Cuccinelli was an outlier with his vote on increasing child support payments, his bills on marriage and child custody did not fare well during the legislative process. Virginia records show that both died in committee almost as soon as they were submitted.

Cuccinelli’s campaign did not respond to a request for comment.

The Pinocchio Test

As we said, context is important. The fact that Cuccinelli did not directly single out women in his legislation makes it difficult to award a rare “Geppetto Checkmark,” especially for an attack ad. Still, given the context in which Cuccinelli offered this bill—with the support of the father’s rights movement–neither does it quite merit Pinocchios. But we don’t give ½ Pinocchios.

Here’s our standard for a single Pinocchio: “Some shading of the facts. Selective telling of the truth. Some omissions and exaggerations, but no outright falsehoods.” The last sentence comes close to describing this ad: “some omissions [ie, Cuccinelli’s bill was not aimed only at women] but no outright falsehoods.”

That’s pretty good for an attack ad. As the saying goes, the ad has “an elephant of truth.”

One Pinocchio

(About our rating scale)

Check out our candidate Pinocchio Tracker

Follow The Fact Checker on Twitter and friend us on Facebook