Marriage Defenders

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Stolen Vows - No-Fault Goes National

"Word of the Emperor's refined habits spread over his kingdom and beyond."


After January 1, 1970, a marriage in California could be ended using the new 'breakdown' standard for divorce. This historic breakthrough would soon be replicated by other states that had stricter divorce laws. Because the social and political causes that California and the other west-coast states often championed were typically more liberal than those of the rest of the country, their progressive ideas were sometimes disparaged. But this bold new law would herald a national movement that eventually would have implications for every single marriage in the country. California's success would be a sign that it was time to move ahead in changing the 'old' way of handling divorce.

Those in leadership roles took notice.

The National Conference of Commissioners of Uniform State Laws (NCCUSL), also known as the Uniform Law Commission, with headquarters in Chicago, serves as a clearinghouse for 'model laws' which are then offered to the states to adopt.

Most people believe that state legislators write the laws. But, most laws are designed at a higher level - by a national group made up solely of lawyers. The implication of this little-known fact is that the boundaries separating the two of the branches of government - the legislative branch and the judicial branch - are a lot fuzzier than most people think. Lawyers can be members of both branches of government - something that is not permitted by our Constitution. The ones who write the laws can be the same ones that practice or enforce the laws - as lawyers and judges.

The function of this obscure law-writing group is described in Herb Jacob's book.

The NCCUSL is a unique quasi-public body. It was organized in 1892 to promote, among other reforms, a uniform marriage and divorce act for the states. However, after several unsuccessful attempts it abandoned that task and turned to other subjects as wills, securities, and the determination of death. It is composed entirely of legal experts. State governors appoint its members from the ranks of law professors, prestigious attorneys, and well-placed legislators. Its budget comes from state appropriations as well as from such grants as it can procure. It works through drafting committees whose products are then debated at its annual conference and usually adopted with only minor changes. Its proposals then go to the American Bar Association (ABA), which generally endorses them. The double endorsement of the NCCUSL and the ABA establishes the so-called 'uniform act' as an influential model for state legislatures. Few uniform acts win approval from state legislatures without substantial alteration to suit local conditions, but the fundamental concepts underlying those model laws are given a powerful thrust by the endorsement of the NCCUSL and ABA.

However, unlike state legislatures, the NCCUSL avoids the limelight of publicity and the media seldom reports its activities. It does not hold public hearings and is not subject to overt pressure groups or partisan politics as are legislatures. Its committees often consult with representatives of diverse groups in order to increase the likelihood that its model statutes will win the approval of state legislatures, but such consultation occurs in a relatively unsystematic way through private rather than public channels. All of these characteristics made the NCCUSL an ideal vehicle for promoting no-fault divorce." 1

In a 1991 article reporting on the upcoming 100th anniversary meeting of the group, the NCCUSL was characterized in the following way: "Although state legislators are principally responsible for drafting laws, members of the NCCUSL are real masters of that craft. Acting as a sort of 'super-legislature', they have written such bulwarks of state statutory law as the Uniform Commercial Code, the Uniform Partnership Act and the Uniform Probate Code." 2

Lawrence J. Bugge, a partner in the Wisconsin Law Firm of Foley and Lardner who served as the organization's president in 1991, says about the work of the NCCUSL, "The chance to analyze and debate tough issues with some of the finest legal minds, and the chance to shape and improve American law for years to come - that's what keeps us at it." 3

On the surface, entrusting law-writing to experts might seem like a good idea, since it is technical work that does require a certain level of expertise. But, because lawyers earn a living interpreting the law, they have a strong vested interest in any changes made to the laws. The NCCUSL is made up solely of lawyers who, in addition to writing laws that affect their livelihood, are also setting public policy through the laws they write.

* * * * *
In 1965, this national organization decided the time was ripe for clearing up the patchwork of marriage and divorce laws throughout the country. Introducing a common standard that would bring greater uniformity among states was their goal. At their 1965 annual meeting, Commissioner Bernard Hellring of New Jersey made the following remarks in introducing this new initiative:

"Threescore and seven years ago this Conference of Commissioners on Uniform Laws was established, largely for the initial purpose of making more uniform the laws of the various states on the subject of Divorce and Marriage. Since that time, the Conference has distinguished itself in many areas. No significant contribution has been made on the subject of Divorce and Marriage.

We venture to express the view that the time is appropriate in the development of our American society for such a contribution to be successful at this time." 4

In his concluding remarks, Commissioner Hellring hinted at the import of this work:
"This is a major project and its consummation will bring to this Conference its finest hour and the fruition of its initial purpose." 5

The tone was set for this high-minded enterprise and the NCCUSL next applied for grants in order to fund the work that lay ahead. This project would take several years to complete, once funding was secured.

In 1969, Chairman of the Commission, Maurice Merrill from Oklahoma, reflected on the growing interest in divorce law changes:
". . . there was a fresh wind blowing in the country and throughout the world; there was interest in Great Britain, there was interest throughout this country, in doing something that would do away with the whole unsatisfactory and hypocritical nature of the present divorce laws; that it would junk the old notions of fault of various sorts and kinds, and associated forms of statement which had resulted in the adversary type of divorce litigation, even when there was really agreement between the parties; that it had resulted in hypocrisy and prejudice, and what have you, and had stimulated in some instances, perhaps, conflict where there would not have been conflict.

All this, they felt, should be abandoned in favor of the concept of the breakdown of marriage as a basis for divorce, which had been proposed by a number of thinkers in the area, and which, I think I can say properly, had really become the practice in American law, although definitely not the legal theory." 6

The NCCUSL's initial interest was in writing a 'model' law, in order to bring greater uniformity among the states in regulating marriage and divorce. But, this group was also interested in reformulating the 'rules' of divorce - and in eliminating the old notion that one spouse could usually be held accountable for the breakdown of the marriage.

Not all of the group's participants were happy with the role they were being asked to play. In fact, some of the commissioners thought they should stick with conforming the law and should stay out of meddling with the standards that had been around for years. They also did not like the vagueness of the 'Irretrievable Breakdown' standard being proposed. The debate from the record reveals this struggle which, no doubt, accounts for the difficulty this group had in getting the Uniform Marriage and Divorce Act approved. California's breakthrough would be fortuitous for the proponents of change and would ease the way for the work of the NCCUSL - even though this group lacked the dogged persistence of someone like James A. Hayes, the Champion of California's law. California's pending new law would be held up as a model - and as proof that the time had come for this change.

One of the NCCUSL's members who opposed this new standard of Irretrievable Breakdown was Commissioner Fred Hanson from Nebraska. Hanson's statement, taken from the transcripts, reveals the numerous concerns he and other commissioners had about making this change.
"Mr. Chairman, I address myself to the general policy of the Act, so far as it pertains to divorce. It seems to me to do justice between parties without regard to fault is an impossibility. I wonder what's to become of the maxim that no man shall profit by his own wrong - or women either, for that matter.

The proponents of this Act say that the divorce problem is different because there is fault on both sides; but, humans being what they are, there is fault on both sides in every human relationship. The faults, however, are far from equal. No secular society can be operated on the theory that all faults are equal. Adultery is more serious than abusive language, just as murder is more serious than larceny, although I understand that in the old days on the border between Arkansas and Missouri---and I forget which side of the line it was - they would fine you for killing a man, and hang you for stealing a mule. [Laughter] But I understand that this has been corrected. If you want to know more about it, Judge Gibson or Commissioner Barrett can enlighten you.

It's an astonishing thing how often opposites of conduct attract; and this results in inequalities of faults. When this occurs, to disregard the inequality of fault, is to blindfold justice. Oregon recognizes the inequality of fault, but endows it with weightlessness by granting divorce to the party most at fault if the other is not seeking it or is opposing the divorce.

The theory that the state has an interest in the stability of the family is unquestionably wise, but under this law it has no more effect than a particular judge chooses to give it. The concepts that implement the theory of the state's interest - the requirement of definite grounds, collaboration and defenses such as collusion - all are scrapped. In their place we have new terms that defy definition: "irretrievable breakdown" or "irreconcilable differences." Decisions are to be made on a conclusion, and not on basic facts.

According to a comment in Prospectus magazine for May, it says that California has conciliation procedures and trained staff workers who become thoroughly familiar with the rocky marriages. This may compensate to some extent for the indefiniteness of the grounds, but this Act provides only that the judge may suggest to the parties that they seek counseling. If the court is to rely on conclusions instead of factual evidence, the divorce proceeding becomes more of an administrative than of a judicial process. Morever, providing comparable machinery to that which they have in California may very well be impracticable in sparsely populated areas.

California Senator James A. Hayes, the chief architect of the California law, says in an article in the last American Bar Association Journal that discarding the traditional grounds, collaboration, and defenses, and suppressing evidence of specific acts, as they do in California, will reduce the acrimony between the parties and the trauma to the children, thus making divorce a less bitter pill; but in the typical case reaching the filing stage, everything will have been said. The children will know most of what is to come out in the pleadings or the evidence, and typically, will learn little or nothing more from these. The real trauma to the children is the permanent separation of the parents. Therefore, the anticipated benefits are illusory. Injury to the innocent cannot be eliminated here any more that it can in criminal law enforcement.

But when the divorce pill is sugar-coated, inevitably more people will take it, and more children will be victims of the trauma. Senator Hayes says the sugar coat will reduce the divorce rate. Now, I am old enough to remember when pills were not sugar-coated. The coating was added to pills in order that they would be taken more readily, and I personally know that it works. Senator Hayes' premise supports the opposite of his conclusion. It will not reduce the divorce rate; it will increase it.

Advocates of easy divorce say: How cruel it is to keep people tied together when they are not happy! It's true that all restraints are in a sense cruel, but without the sturdy fence the bawling cattle in the pasture would be destroying themselves in the green corn and damp alfalfa. And so it is with the restraints on divorce. [Laughter]
Acts such as this one that is proposed discard all the time-tested experience of the past. They destroy the establishment, so far as divorce is concerned. They offer in its place vague terms, "irretrievable breakdown" or irreconcilable differences," grounds which are in themselves a conclusion and not a basic fact. If every state should enact such a uniform law as is proposed, when would the content of these fuzzy terms cease to vary, not only from state to state but from judge to judge? The proposed law actually is in the main stream of rebellion against accepted norms, a rebellion that threatens to destroy the institutions of our country.

Now, there is a field for uniformity where we may labor to bring together the best wisdom that has been distilled in 50 legislative laboratories. If so doubtful an experiment as this is to be tried, let it be in some of the venturesome states. California and Oregon and perhaps others have embarked upon it already. Until a large body of experience is available, let it rest there. We should not be among the first by whom the new is tried.

C. S. Lewis, the English author, just before his death wrote an article entitled: "We Have No Right to Happiness," which was published in The Saturday Evening Post in 1963. It is an interesting analysis of the way some people think about divorce, and it will also illustrate a case in which injustice would be done under this type of law.

He and some neighbors had been discussing a thing that had happened in their community. Mr. A had gotten a divorce from his wife, in Order to marry Mrs. B, who had won a divorce from her husband in Order to marry Mr. A. One of the group, a woman named Clare, remarked: "After all, they had a right to happiness."

Now, there is no doubt whatever that Mr. A and Mrs. B were very much in love, and if they continued to be in love and nothing happened to their finances, and their eyes did not rove as they had during their previous marriages, they could expect to be happy. It's equally clear that they were not happy with their old partners. Mrs. B had adored Mr. B when they were first married, but he got badly used up in the war. It was known that he had lost his job, and it was suspected that he had lost his virility. Life with him was no longer her bowl of cherries. [Laughter]

As to the first Mrs. A, she had lost all her bounce and beauty. Some have said that this was due to the rigors of bearing and rearing Mr. A's children and nursing Mr. A himself through the long illness that overshadowed the early part of their marriage. Now, you must not think that Mr. A was the kind of a man who throws away a spouse as he would an orange peel that he has sucked dry. He was deeply shocked and grieved by the subsequent suicide of Mrs. A. We know that the was, because he told us so himself.

As I thought about Clare's remark afterwards, it made no more sense to me than the right to have a millionaire father or good weather for a picnic or to have your life be a bowl of cherries.

The ancestry of Clare's maxim is an august one. Our fathers wrote of the right to the pursuit of happiness. What they meant by the phrase is not entirely clear, but it is very clear what they did not mean. They did not mean the right to pursue happiness by any and all means---murder, rape, robbery, and so forth, nor even by the kind of wanton disregard for solemn vows, deep obligations of gratitude, and common humanity exhibited by Mr. A, for example, toward his first wife.

Now, Clare was a leftist politically, and she was also a teetotaler. She would not have excused the man-eating tycoon on the ground that ruthlessly getting wealth made him happy, nor would she have excused the lush because he was happy only when drunk. There were several women in the neighborhood who had been heard to say, in substance, that boxing Clare's ears would have augmented their happiness materially; but would Clare have excused them had they exercised their right to happiness in this way?

Yet Clare's maxim can be reconciled with these philosophies of hers. Her remark related only to sexual happiness. Women to Clare never talk about any other kind. Here I may be getting myself into trouble with the ladies on the Committee and probably those in the Family Law Section; the Chairman is now a woman. I may be getting myself into the same kind of trouble that Mr. Humphrey got into with Congresswoman Patsy Mink the other day, but I'm going to take time to go into this part of it. However, Mr. Lewis also makes a very good case for the proposition that where there is a permissive attitude toward divorce, it is the women who are the big losers.

So Clare and those whose thinking parallels hers are allowing to the sexual impulse a preposterous privilege, a privilege we would not right now at least think of extending to other natural impulses. All must be controlled. The instinct for self-preservation, given free reign, becomes cowardice; the acquisitive instinct becomes avarice, or worse.

Maybe we are on the way to allowing unwarranted privilege in other areas. I haven't heard of read very much lately abut punishment for arson or malicious destruction of property---that is, when it's done on the pretext that you are protesting against something or other, and it matters very little what.

Now, Mr. Lewis' article left me wondering about the one point. How did Mr. A and Mrs. B get their divorces? This article was written in 1963. Under the proposed uniform law, or the law of California or the law of Oregon, getting that divorce would have been no more trouble than good coffee is to Mrs. Olson. [Laughter]

Now, were these discarded spouses too shocked by the perfidy of Mr. A and Mrs. B to even lift a finger? Mrs. A's subsequent suicide would indicate that she was. Or were these divorces simply the result of miscarriages of justice, such as do occur under the traditional divorce laws? A no-fault law would prevent such miscarriages, by legalized abortion.

Now, I deny being a reactionary. I served on the Uniform Probate Code Committee from 1962 throughout its life. I made no resistance to the drastic changes that law would make in the law of my State, even though it was generally thought by many - including prominent attorneys from my State - that it would materially reduce the income from the kind of practice I enjoy. This was because I saw in that law a definite and clear benefit to the public, and there was a long and favorable experience with the basic theory of that law in Washington and Texas. So I deny that I'm a reactionary. It's just that I have a conviction that this largely academic proposal is not as superior to the experience of the past as the revolutionary changes it makes would indicate, but is, in fact, far inferior.

To make the record perfectly clear, I am opposed to the Act on the theory on which it is now drawn. [Laughter and applause.] 7
In responding to Mr. Hanson's remarks, the presiding chair said,
Thank you, Commissioner. None of us doubt that we are dealing with a controversial and emotional subject. I think it helps to have you put it all in context to start with." 8

The work of this national organization moved ahead with much less notice than the work in California. 9 While the work of the NCCUSL had begun at nearly the same time as the work in California, the NCCUSL's work would take longer to finally complete. But, the impact would be enormous, affecting laws in almost all the rest of the states, and legitimizing what California had done.

* * * * *
Lawyers had been voicing three main complaints about the 'substance' of divorce laws:
1) they resented having to 'manufacture' evidence about one spouse's wrongdoing in order to meet the narrow provisions of the law; 2) they claimed that the requirements of the adversarial system - where spouses could not be represented by a common attorney - only promoted greater conflict and made divorces more painful, 3) they complained that variations in state laws made cases more difficult when spouses lived in different jurisdictions - which sometimes put large property settlements at stake.10

The issue of 'migratory divorce' was also a growing concern. For an attorney, the downside of living in a state with stricter divorce laws was a revenue loss, as people sought divorces elsewhere. If a spouse desired a quicker divorce, he or she would move temporarily to a state that had more lenient laws, and returning Home after the divorce was granted. Nevada was well-known for accommodating these 'quickie' divorces, although some spouses found they were not legal back home.

But, the main complaint voiced was about the sometimes-distasteful practice of meeting the letter-of-the-law in a divorce to which both spouses were consenting. The law, at the time, did not allow divorces on the basis of 'mutual consent' and spouses in such cases were forced to establish 'fault' dishonestly in what was viewed as a 'contrived' situation. An easy way to resolve this problem would have been to simply add 'mutual consent' to the menu of standards under which a divorce would be granted, and leaving the previous grounds in place. But, those who were re-writing the laws did not choose this solution and, instead, overturned the whole system. The question about the outcome in this question - why this path was chosen and not the other in the national project to offer a model law - is what aroused my curiosity - and is what led me to investigate the story that lay behind the inception of no-fault. What I discovered needs to be understood. It is part of the subterfuge that helps keep the illusion in place.

* * * * *
The winds of change were blowing. Robert J. Levy, from the University of Minnesota law school, was assigned the task of keeping records of the meetings and also preparing drafts of the proposed law for the committee during their working sessions. He expressed early misgivings about the claims that advocates of this new Irretrievable Breakdown standard were making. He said that 'no-fault' was not a cure for the problems of the present system and, in fact, would produce its own set of problems. He expressed doubt that the new system would produce less animosity and he also expressed concern about allowing judges to determine what constituted marital breakdown. But, his interest was not about the spouse who might be 'forced out' of a marriage. He was, instead, worried that a judge might not make the right call, since judges are no experts on evaluating relationship-health - and not grant a divorce. His fear was that a spouse might not be able to dispose of an unwanted marriage.

Levy was right about judges' inabilities to assess marital health but he was wrong about requiring all requested divorces to be granted - even when one of the parties did not want the divorce. Salvageable marriages would be put at risk. But Levy eventually supported the move to no-fault, although with some reservations, writing that, "I have (somewhat reluctantly) come into the fold - I am going to recommend that the Conference adopt a Breakdown of Marriage (with safeguards) approach to divorce grounds." 11

What he meant by 'safeguards' is bewildering though. The meaning in his use of the word 'safeguards' appeared to have more to do with safeguarding the petitioning spouse's right to a divorce. 12

The other record-keeper at these meetings was Herma Hill Kay, an ambitious young Berkeley law professor who was also a key player in the California law-change. She supported no-fault, believing that it would be a positive move. Her involvement also provided a helpful link to California's success and was instrumental in shaping the work of the NCCUSL.13

The NCCUSL finally finished its work on the Uniform Marriage and Divorce Act (UMDA) in 1970 - five years after it first announced it would take on this task. But the endorsement of the American Bar Association (ABA) was still needed and, for three years, the ABA blocked final approval of the law. The members of the ABA's Family Law Section took it as an affront that they had not been included in the NCCUSL's early work on this issue. In addition, the ABA came out against the Irretrievable Breakdown standard, believing it would make divorce too easy.

While the Family Law Section did not object to incorporating 'Irretrievable Breakdown' as a one of the 'options' for granting divorce, some of its members objected to making it the sole standard for divorce. They reminded the NCCUSL that both England and Canada had rejected 'Irretrievable Breakdown' as the sole standard for divorce. They even used 'red-baiting' in their arguments, by pointing out that Soviet Russia was the only country using 'Irretrievable Breakdown' as the sole standard.

In addition, the Family Law Section did not want divorce to merely become an administrative process, decreasing the need for court involvement. They did not want the role of attorneys and judges to be diminished in the divorce process. By making a petition for divorce a 'done deal' they were afraid they might lose revenue in this area of work. They also expressed concern that a unilateral 'divorce-on-demand' standard would leave no protection for the other spouse.

Their fear was that judges would have no way to avoid issuing divorce decrees if this was the case. And without clear guidelines for determining marital breakdown, judges would have no means for determining who should qualify. The ABA advocated for adding delaying restrictions and counseling requirements, which would serve to prolong the divorce process. Cynics say the ABA's resistance to the UMDA, was more about their own self-interest - that lawyers would experience a revenue-loss if the divorce process was shortened. In the end, the objection raised by the Family Section allowed them to promote the ABA as being committed to the institution of marriage and family.14

Debate surrounding the UMDA also centered on the use of the two words, 'shall' and 'will' which, in essence gave judges great latitude in rulings. Few people understand the 'law' well-enough to know how important each word can be.

The Uniform Marriage and Divorce Act was approved at the 1970 meeting of the NCCUSL , but it took until 1974 - after some revisions in the wording - to receive final endorsement from the ABA.15

* * * * *
The final solution to 'problem' - defined as a confusing array of state divorce laws that caused difficulties for spouses and for those within the legal arena - was a new 'no-fault' standard for divorce. But the problems that would follow in the wake of this new standard would spell even greater misery for families. Now, a judge would force a divorce on an unwitting - or innocent - spouse, even if he or she believed that the marriage could be saved. By eliminating the requirement for 'mutual consent' to a no-fault divorce - or for 'just cause' inherent in the former grounds for divorce - negotiating power during 'settlements' would be obliterated.

The legal experts that brought this change may have been well-aware of what would happen. But, I prefer to believe that most of the legislators involved in instituting no-fault did not foresee family stability being so deeply undermined with so many more children suffering the losses of divorce.

Whether the career-motives of lawyers trumped their concern about family stability is debated by the critics. California had wanted to include safeguards. But the national effort did not include any safeguards, nor were any even considered.

Countless times the law-writers claimed they had our best interests at heart. But, as a result of their efforts, divorce would become so easy that it would become all-but-guaranteed for any spouse who sought legal services and paid the lawyer's retainer-fee.
With stealth and with cunning, marriage vows had been stolen away from the brides and grooms that had made them.

The Uniform Marriage and Divorce Act, elevated California's progressive new idea to a national ideal - a model law - that would spread across the country. Through the work done by the experts, a spell was cast and we have slowly fallen victim to it. Those who brought us no-fault divorce claimed it would help families because it would reduce acrimony as well as the divorce rate. But the opposite happened. The divorce rate rose in each state that introduced no-fault divorce. One out of two marriages can still end in divorce. And the workload on the courts has only increased. Child custody disputes and child support actions clog the court dockets now. And angry parents wonder how their lives have become so miserable.

As a result of removing 'blame' from divorce, new standards were needed to resolve the issues that are a spin-off from the split-up. Current practice relies on vague and counterfeit terms, such as 'best interests of the child' - a term that is devoid of what children would most often wish for: that they could have both their mommy and daddy living together with them and getting along. But no provisions were put in place to truly address this 'best interest'. The Marriage Hospital disappeared when the budget-watchers complained. The courtrooms are still busy - sorting out decisions that used to be easier - before the rules were so drastically changed.

Within fifteen years after California's achievement, each state would adopt its own version of no-fault divorce, incorporating Irretrievable Breakdown as the new standard. For most states, it is the sole standard, and for those in which it is not, the result is the same. Building case-law to back up judges in their narrowly-defined role of granting divorces was all that remained to be done. Meanwhile, family wealth would be syphoned into the hands of the

Divorce Industry.
Notes
1. Jacob, Silent Revolution, 62.
2. "ULC to Meet---for 100th Time," The National Law Journal, July 29, 1991.
3. Same as above.
4. Transcripts of NCCUSL Proceedings, August 5, 1965, page 2, available from the Uniform
Law Commission office, Chicago.
5. Same as above, page 6.
6. Transcripts

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