THE EVOLUTION OF DIVORCE (IN CALIFORNIA)
People think California invented “no-fault” divorce. Not true. The concept of divorce without the element of blame was a subject of discussion in legal and mental health circles throughout the United States in the early 1960’s. The National Conference of Commissioners on Uniform State Laws, source of over 140 uniform state laws, began in 1967 drafting a model of a no-fault divorce statute for states to consider.
The first no-fault law in a modern state was established in Russia in 1917. That was an anti-church part of the revolution. (There was no alimony then –the state took care of you, and besides, everyone was equal.) Historically, marriage and divorce were ecclesiastical matters in all countries, and ecclesiastical rules transmuted into civil rules. To get a divorce under church law, you had to prove you were unpardonably sinned against.
“No-fault” divorce came to us from The Governor’s Commission on the Family established on May 11, 1966. Governor Edmund G. Brown asked the commission for a “concerted assault on the high incidence of divorce in our society and its often tragic consequences,” and said, “the time has come to acknowledge that our present social and legal procedures for dealing with divorce are no longer adequate.”
With fault, if I could prove my spouse committed what was recognized as a “matrimonial offense,” such as adultery, extreme cruelty–mental or physical, desertion, neglect, habitual intemperance or conviction of a felony, as set forth in California’s basic divorce law of 1872, I got more property and more support, and no question about the children.
Eventually, the result was that many people who wanted to end a marriage fabricated spousal wrongdoing, usually collusively with each other as to what the offense was. In 1966, 95% of the 99,762 complaints filed for divorce or separate maintenance were on the grounds of “extreme cruelty.” And in 61,957 of these, a judgment was granted without contest. The other 37,805 apparently went through the full litigation process.
This procedure was described by Supreme Court of California Associate Justice Stanley Mosk: “Every day, in every superior court in the state, the same melancholy charade was played: the ‘innocent’ spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed ‘cruel.’” The usual hearing was concluded in 10 minutes.
Mental health professionals said that the fault concept and adversary techniques in divorce practices served to aggravate the stressful conflict between the separating parties, causing unfortunate grievous consequences for the development and security of children. (However, it seems the adversary techniques have only increased under no-fault, especially with issues involving children, to the extent that the California branch of Association of Family and Conciliation Courts has declared the status of children in family court to be “a public health crisis.”)
Governor Brown voiced good intentions and included the clergy and social welfare people to his bipartisan Commission, along with legal, medical and legislative people. The stated intent was to prevent divorce through a new family court system which would provide a professional staff to for counseling and evaluative services. Up to that time, divorces were part of the regular civil courts. But a new juvenile court system had been established, and it was thought a separate family court would answer “our goal to establish procedures for the handling of marital breakdown which will permit the Family Court to make a full and proper inquiry into the real problems of the family—procedures which will enable the Court to focus its resources upon the actual difficulties confronting the parties…” Governor Brown wrote to his Commission.
Brave words, but more than the family court system could handle, even if people had wanted such services.
One member of the Governor’s Commission said that the fault-oriented approach to divorce as a tool for severing a marriage relationship is like performing brain surgery with a shovel. Another commentator noted that the law thus presumed a marriage broke down only upon the occurrence of a specific act; whereas, in reality, marriages break down for reasons other than the wrongful act of one party, and we should be able to terminate a marriage simply because the relationship has become intolerable and has ended.
So the Commission recommended “a neutral petition be substituted for the present adversary pleading by complaint and answer.” The first no-fault divorce in the United States thus arrived in California through the Family Law Act of 1969, signed by Governor Ronald Reagan, effective January 1, 1970. Within five years, 45 other states soon followed, the far last being New York in 2010.
W. Bradford Wilcox, the director of the National Marriage Project at the University of Virginia and a senior fellow at the Institute for American Values, in an article, The Evolution of Divorce, in 1996 in National Affairs, Fall 2009, suggested one reason for the governor’s signing was that his first wife, Jane Wyman, cited “mental cruelty” for her divorce from him.
Of the 15 citizens who testified before the commission, 14 were men; 10 were divorced. The California Assembly Judiciary drafted the Family Law Act. The chair of the Judiciary Committee was James Hayes who had been divorced in 1966 after 25 years of marriage. His wife has been awarded the home, the children, $650 a month for alimony until death or remarriage and child support.
In 1972, he petitioned to end his financial obligations to his ex-wife. He argued,
When our divorce law was originally drawn, a [woman’s] role in society was almost totally that of mother and homemaker. She could not even vote. Today, increasing numbers of married women are employed, even in the professions. In addition, they have long been accorded full civil rights. Their approaching equality with the male should be reflected in the law governing marriage dissolution and in the decisions of courts with respect to matters incident to dissolution.
Those were the words written by his judiciary committee in 1969. Hayes won. The court told his ex-wife to get a job.
http://www.nationalaffairs.com/authors/detail/w-bradford-wilcox
I am reminded of the Rush Limbaugh quotation, “If Thomas Jefferson thought taxation without representation was bad, he should see how it is with representation.” If Governor Brown the First thought divorce with fault was bad, he should see it with no-fault. Family law in California has been a festering sore in the body politic ever since then.
The Governor’s Commission excluded “child custody and support,” among other items, due to their” limitation of time.” It has been little noted that “custody battles” burgeoned after 1970. One long-time lawyer said that there were no custody contests when the divorce was someone’s fault and their bad behavior was relevant. After no-fault, blame and accusations of bad behavior became relevant only as it might affect children. The fault was now in the parenting. Children became the weapon of choice.
That “neutral petition” demanded that a parent has to choose to ask for “custody,” joint or sole, and “visitation” for the other parent. In this initial step, no guidance was provided to tell a person what joint custody meant, and lawyers frequently advised the choice of “sole custody” as a point for bargaining.
Now, as a result of pushing by “fathers’ rights” groups, the choice on the petition has been limited to “joint” or “other,” but “custody” is still not a neutral word, and “joint” is usually understood by an aggressive parent to mean fifty-fifty. That 50-50 seriously affects the amount of child support a person pays or receives, so litigation over “joint custody” has been grossly incentivized.
For the other parent, the petitioner requests: “child visitation (parenting time) be granted to…,” the choices being petitioner, respondent or other. How insulting is that, that the parent with custody is “granting” to the other parent time with his or her own children.
Then the summons that accompanies this “neutral” petition contains a box just below the responding person’s name, “You have been sued.”
A positive result, based on findings in research, was that domestic violence and female suicide decline in states that legalize no-fault divorce. Specifically, it was reported that “states that adopted no-fault divorce experienced a decrease of 8 to 16 percent in wives’ suicide rates and a 30 percent decline in domestic violence.”
Another positive outcome was that, as a professor of history at Evergreen State College stated, “in the years since no-fault divorce became well-nigh universal, the national divorce rate has fallen, from about 23 divorces per 1,000 married couples in 1979 to under 17 per 1,000 in 2005.”
However, on the negative side, that residual “fault” element remains in relation to child custody. And this element has been used to great advantage by abusive men against their wives in order to gain control of the children in custody litigation. Abused women have been “pathologized,” says Barry Goldstein in his recent book, The Quincy Solution. Goldstein, co-author with Elizabeth Liu of Representing the Domestic Violence Survivor, and an attorney representing victims of domestic violence for 30 years, says most contested custody cases involve domestic violence.
According to the Family Violence Appellate Project, a law clinic established at the University of California at Berkeley law school, one study found that abusers are granted custody in 54 percent of custody cases involving documented domestic violence. Motivated by this appalling statistic, FVAP is the only organization in California dedicated to appealing cases on behalf of domestic violence survivors and their children.
“We focus on cases that will set legal precedent in favor of survivors throughout the state of California so the law can do what it was meant to – keep families safe. Support our work and help change the legal landscape to protect domestic violence survivors and their children, one appeal at a time,” says their mission statement.
Adding fuel to that fire, the California state legislature, again lobbied intensively by fathers rights people, in 1984 put a price on the heads of children by lowering or raising child support according to the amount of time a parent spent with his or her children. According to a June 2000 article in the Los Angeles Times, “Lawyers now routinely advise clients to make sure joint custody agreements are not just in writing but that children actually spend close to half their time with each parent.” This applied to preventing the other parent from moving away, but equally applies to support.
The state of California, through legislation, has made family law court the great enabler of the most cruel behavior one family member can inflict on another.
The festering in the divorce process continued. Problems with family law multiplied. A Certified Family Law Specialist testified in 1996, “In recent years, caring members of the Family Law Bar have become increasingly frustrated by the procedural and substantive complexity of the family law system which makes it virtually impossible for them to render cost-effective service to the middle and low income client. Even for the higher income client, the cost of obtaining a divorce in this state has become unreasonable.”
In that year, the Judicial Council, the folks who run the court of this state, appointed a committee called Family Court 2000, which ran up and down the state listening to opinions of what was wrong.
“Nothing wrong here,” said Milo De Armey, sent by the Orange County Bar Association to the hearing in Los Angeles; “Just some people who have mental problems.” “Nothing wrong here,” said the supervising judge of family law in Los Angeles County; “We settle cases all the time in the hallways on the day of trial.”
Fifty percent of the people who wanted divorces were going to court without lawyers. In 1995, Judge James D. Garbolino, member of the Judicial Council Subcommittee on Family Law reported that in 80% of family law cases, neither person had a lawyer; in 10 to 12 percent of the cases, one spouse had a lawyer; and in only 11 to 14 percent of family law cases were both parties represented by lawyers. In 1996, the Family Court 2000 committee said only 15% of litigants going through the divorce process had lawyers.
Family Court 2000 did result in many changes to facilitate the effectiveness of the efforts of the people applying and obtaining divorces without lawyers. All courts established self-help centers. Forms were simplified, and lawyers were provided with official rules to enable them to represent people in only part of the process.
One member of that committee said it foundered on the issue of “due process.” Some committee members had argued for relaxing the rules of evidence, and for allowing more administrative law processes in family courts. The “due process” people opposed that. At an Orange County meeting called by one of the panelists to discuss The Family Court 2000 issues, I asked what due process has to do with family law. None of the lawyers there provided an answer.
The Fifth Amendment to the United States Constitution provides: “ [N]or shall any person . . . be deprived of life, liberty, or property, without due process of law.” . .
Section One of the Fourteenth Amendment to the United States Constitution provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . .”
In California, property acquired during a marriage is presumed community property. If a couple cannot divided it themselves, and they ask the state to do it for them, how is it the state is depriving someone of property? Where is the state action?
Or children and parenting plans—where is the property interest? Liberty? Life? We do recognize a civil right to parenting, but if a couple cannot work out their own parenting plans, and they ask the state to do it for them, where’s the harm?
Then came Elkins. I knew instantly when I read the public relations announcement from Bill Vickery, director of the Judicial Council, stating that the Elkins Task Force would include “due process” that this task force once again would not make any fundamental changes in family law.
In 2006, Jeffrey Elkins sued the family law court of Contra Costa County for they way they treated him. He won. The Supreme Court of California said, “you can’t do that to Jeffrey,” adding in the following footnote that all the family courts of the state should be fixed:
We recommend to the Judicial Council that it establish a task force, including representatives of the family law bench and bar and the Judicial Council Advisory Committee on Family and Juvenile Law, (emphasis added) to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for laypersons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court.
In spring 2008, the judicial council appointed only members of the bench and bar and a few court employees– 38 judges, lawyers and court employees– to a task force named Elkins.
The task force meetings were held in Los Angeles and in San Francisco. The public was given 15 minutes of the meeting time to speak, and comments were taken by email. At the first Los Angeles public meeting, seven persons signed up to address the task force. Fortunately, only four showed up because that 15 minutes was for all speakers, not for each speaker.
So many citizens asked to speak to the task force that an additional session was added to their schedule. That special meeting was held in the judicial council offices in San Francisco from 10:00 a. m. until 5:30 p. m. with a short 30 minutes for lunch. Thirty-five people told their divorce horror stories.
All the stories involved custody of children, although the subject could have been any aspect of divorce. All speakers were women, but for one man, one politician from San Diego with his film crew for his story, and a representative of a not-profit group. And one 14 year old boy who told of psychological abuse by a man, a “master,” appointed by the court to monitor visitation.
Some changes are that judges in some courts are trying to give people a chance to testify. However, in Orange County one day I counted the cases on each family court calendar, calculated the court working day, and concluded that each case would have 24 minutes of the judge’s time. Hence, many times a case is continued. One case filed in December 2014 was not heard until August 2015 after four continuances.
The judicial council in a survey of citizens opinions of their courts in 2007 found that what people wanted of their family courts was “a chance to tell their story” and “a fair process.” In the two years–at least–it takes to endure a litigated divorce, no judge wants to hear your story, and there is no way to make the process fair. If one lawyer wants to play legal games, there is no gatekeeper to stop her. If your parents will pay a lawyer to cause unlimited problems, no one will give you equal funds to counter the other lawyer.
“The pain I suffered, the fear of and anger I felt toward nearly all of the principals involved, and the inescapable sense of helplessness and isolation exhausted me.”
Alec Baldwin
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