The Illusion of No-Fault Divorce and
Stolen Vows - Chapter 3 - California
“Once upon a time there lived a vain emperor whose only worry in life was to dress in elegant clothes. He changed clothes almost every hour and loved to show them off to his people.”
- from The Emperor’s New Clothes, Hans Christian Anderson
It is no surprise that California is where this story begins and that the social upheaval of the 1960's provides the backdrop, for this was a time of unrelenting challenges to the country’s traditional value systems. During this time, the ‘rules’ that guided behavior were undergoing rapid change. Nothing was sacred. California, with its unique aura, would provide the fertile ground for introducing a dramatic law-change that social historians would herald decades later because of its impact on families.
The West Coast had a certain allure — like a welcome mat rolled out for those who wished to abandon their old lives to find new ones. Californians — for the most part — hailed from elsewhere — Iowa, Minnesota, New York. These newcomers had moved to California seeking opportunities of one kind or another. They had left behind families, friends and familiar settings to move west — just like the gold miners of 1849, who’d sought their fortunes in the hills.
California pushed the margins of change. The free-speech movement, which arose in Berkeley in the early 60's, tested the limits on public speaking. The sexual freedom and mind-expanding illicit drug-use at the time also set California apart from the rest of the country. Experimental lifestyles were tolerated more than anywhere elsewhere. California took the lead in shedding the constraints of societal norms and, in turn, beckoned the rest of the country to do the same.
California would also become known as the first state to dispose of the prevailing rules for ending marriage. The ‘old’ system had to go. It did not fit with the times — where self-indulgence had more sway than living up to personal commitments. Added to this push to ‘modernize’ the laws was the notion — championed by those most eager for the change — that a new set of rules would help the families facing the devastation of divorce by turning down the ‘heat’ in the court process. By eliminating blame-placing, the acrimonious nature of divorce-court would be lessened. Replacing the old system would be a new, enlightened process, which would place a greater focus on helping the families going through the process. The expectation — and the early hope — was that estranged spouses might find their way back to each other and reconcile, as a result. At least, these were the early selling points for changing the rules.
Due to my own youth and preoccupation, I was oblivious to the activities in the California legislature which — three decades later — would come to be recognize as a legal benchmark for the country. Ironically, my own marriage took place at that time in California — the year before California’s no-fault law was passed. Many years later, the synchronous nature of these two events struck me — after I had begun doing legal research into the cause of this country’s high divorce rate and the reasons the problem had been so intractable. During that time, I had no interest in such mundane social issues. The start of my own marriage seemed miles away from the unsavory reality of divorce laws.
Historical accounts of the divorce reform movement mark the early sixties as the time when agitation about divorce laws first began to heat up. Certain groups were voicing concerns about the divorce process and the deleterious effect it had on families. Other groups — made up of lawyers and judges — were complaining that divorce proceedings were making a mockery of the justice system. In a marriage where both partners were in agreement about the divorce, one spouse needed to be certified as ‘guilty’ of a misdeed, in order to meet the letter-of-the-law. The result of these converging forces would be the overthrow of the previous rules-of-the-game, trading them for a new and untested standard. California would become the proving ground for this groundbreaking new approach and the boldness of this move would throw open the door for an avalanche of similar law-changes around the country.
California broke the ice on this matter. Any other state would have taken longer to pull off such a feat. But, California was uniquely positioned to deliver a new blueprint for the rest of the country.
The rest of the states would roll out no-fault laws over the next fifteen years because — once the floodgates were opened — the deluge of change was impossible to stop. The lofty goal enshrouding this change — of helping families by providing ‘aid and comfort’ during the emotional tailspin of a divorce — was never realized. Instead, the outcome of this legal breakthrough resulted in a loosening of the reigns on marriage, devaluing the meaning in the vows and replacing tried-and-true standards with a hollow criterion that would lead to untold misery.
In state after state, the divorce rate climbed even higher when they followed California’s lead — the exact opposite of what was forecast by early proponents of the change.
The passage of no-fault divorce in California erased all the old rules on the books — grounds which included adultery, abandonment, and abuse — and replaced them with a sole standard for divorce based on something called ‘Irretrievable Breakdown’ of marriage.1
California’s progressive spirit of change is like the Emperor who loved to change his clothes. The ‘old’ laws had to go. But, the story of how this sleight-of-hand took place finally needs to be told in such a way that more people will understand what took place at this important turning point.
By using this children’s morality tale, the cloud of illusion — that has held people spellbound for too long — may finally be lifted.
* * * *
Once Upon a Time . . . .
The story begins in the early 60's when state assemblyman Pearce Young was actively promoting laws to strengthen families. As a legislator, his own efforts were unsuccessful, but his continued activism after he was out of office eventually pushed the issue back into the laps of lawmakers.2
On April 18, 1963, the California Assembly passed a resolution that would “assign for study to an appropriate interim committee the subject of the feasibility of enacting standards for the guidance of the judiciary in application of existing civil code procedures relating to divorce, alimony, support, and custody of children.”3
This new political movement was quickly picking up steam. The perceived goal was to strengthen families, particularly during a very vulnerable time for families — when couples were going through divorce.
In their enthusiasm about helping families, members of the State Assembly broadened their mission beyond just studying the problem but to include the possibility of enacting new laws, if needed. The following week they announced they would study the laws pertaining to divorce. They were given the green light to challenge the status quo in this contentious area of law.
The reform efforts were taken to the next level when the Assembly Interim Committee on the Judiciary then invited a variety of experts to testify and offer their views on both the laws and the process so legislators could get a better picture of the realities that families faced during the time of divorce.
California was gearing up to modernize its laws. No other state had not been able to topple the fault-based system used for granting divorce. Nevada was a defiant exception, with its divorce regulations that were well-known for being lenient. In fact, ‘divorce’ was one of the state’s big tourism industries because of the way it facilitated this activity for those coming from other states. But, these ‘migratory divorces’ were not always legal back in a spouse's home state — after they departed Nevada.
The present effort was being driven, by shifting social views about marital problems. A 1970 law review article explains it this way: “The basic premise of the new law is that the nineteenth century concept of divorce, based only upon a matrimonial offense committed by one or both of the parties, is essentially outmoded and irrelevant, often producing cruel and unworkable results. As such, the new law substitutes the concept of dissolution based upon the actual breakdown of the marriage without a finding of individual fault.”4
“The times . . . . they are a-changing,” — as Bob Dylan crooned back then — and the rules no longer fit. A least, that’s what some were saying during this time of growing social unrest.
California was positioned to be the first state out of the gate on this issue — and it would propel marriage free from the old rules of the game. The assumptions underlying the marriage-promise were unraveling as marriage was being cut loose from its moorings, leaving it adrift on a sea of despair.
California’s pioneering effort would soon be praised by the national body of lawyers — the Uniform Law Commission — who set the standard for the nation’s laws, and their hearty endorsement of California’s breakthrough would ease the way for the fundamental premise in no-fault divorce to be embraced throughout the rest of the country.
* * * * *
The story told here is a greatly simplified version of a longer, more richly-detailed story. But, books recounting the history of no-fault divorce have been dry, and included far more legal and historical details than only the most ardent scholar could wade through. But, the story of this law-change is too important to keep it locked away from the rest of us. The essential parts of the story are so compelling — about the good idea initially proposed that would help families — and about the unsavory dealings of those who had no one’s best interests but their own.
For those who want to read more of the details of this historic change in the laws, they can find them in books written by those who studied this historic time. One of the best accounts is in a small but richly-detailed book that tells about the path that ‘no-fault’ took as it moved across the country — Silent Revolution: The Transformation of Divorce Law in the United States, written in 1988 by Herbert Jacob, who was a political scientist at Northwestern University and is now deceased. Two other detailed accounts are written by Allen Parkman. He emphasizes the affects no-fault has had on family stability as a result of its inverse incentives — using an economist’s reasoning. The first is No-Fault Divorce: What Went Wrong? (1992), and the second is Good Intentions Gone Awry: No-Fault Divorce and the American Family (2000). Other books, such as The Divorce Revolution (1985), by Lenore Weitzman, emphasized the financial impact of the law-change on women and children. Those who want more of the story after finishing the account offered here, can find ample opportunities to do so in these other accounts.
* * * * *
Divorce reform was gaining ground. The establishment of the Assembly committee was a turning point. Consensus was growing among lawmakers that divorce laws needed to be changed — and there was virtually no opposition to this growing movement. Governor Edmund G. Brown, who was enthusiastic about family law reform, gave an important endorsement to the committee’s work by saying he would follow the hearings closely. But the governor also expressed caution, urging “thorough study before any recommendations be made.”5
Aid and Comfort for Troubled Marriages
The first of this committee’s three public hearings, centered on the important role the courts could play in steering troubled marriages back to health. Testimony given by professionals who worked with divorcing families, supported the idea that marriage counseling combined with court conciliation services could play an important role for couples who were going through the divorce process. And if such counseling did not result in marital reconciliation, then it would serve the purpose of helping former spouses learn how to raise their children together more cooperatively, as well as gain insight into their marital problems so they could avoid repeating the same mistakes in the next relationship.6
Judge Pfaff, who presided over the Conciliation Court in Los Angeles, was the most compelling speaker heard by the committee. In his testimony he claimed that, “Ninety per cent of [divorces] are neither necessary nor justified, that is, provided these people could actually have some counseling and were interested in saving their marriage.”7
Judge Pfaff also reported, “We have found that where we can persuade them to take advantage of the reconciliation court’s facilities . . . . that 64 out of 100 of these couples reconciled. A year later, 3 out of 4 of them were still together.”8
The committee was intrigued by Judge Pfaff’s testimony and this fact was reflected in the committee’s Final Report, which recommended that counseling services should accompany any change made in divorce law.9
* * * * *
This little-known detail about the California law-reformers — the emphasis they placed on providing services to couples in order to increase the chance of reconciliation — is a crucial piece of information about how this law-change was finessed. Unless we know about the details of meetings that preceded the change, we won’t understand the aura under which no-fault was sold to the public — and why we have had such false hope in it. The Committee, through its report, was saying that if the goal was to help families by changing the laws, then we also had to change how we worked with those couples going through the divorce process. Changing the laws alone would not do it. These early reformers wanted more than to liberalize the laws. And, in fact, some members cautioned that simply changing the laws without changing our court-response, might even prove disastrous to families.
A Bid for the Marriage Hospital
Governor Edmund G. Brown officially got involved when he established the Governor’s Commission on the Family in the spring of 1966. He wanted to make “a concentrated assault on the high incidence of divorce in our society and its often tragic consequences.”10 At the conclusion of its work, the Governor’s Commission had two main recommendations:
1) change the present divorce laws by eliminating the concept of ‘fault’
2) establish Family Courts that would offer greater help to troubled couples.
The Commission proposed a model Family Court Act that would give these courts
“integrated jurisdiction over family matters, assisted by a staff of lay specialists, which exists for the purpose of providing help for families in trouble, employing the resources of the community to that end. The court, under this concept, is not cast simply in the role of arbiter in a controversy, rather it’s main function is to provide therapeutic aid to the family unit. This departure from the court’s traditional role is the basis of the family court philosophy. While the function of the court to decide marital controversies is not denied, it is considerably overshadowed by the aid-providing function.”11
The significance of the above statement needs to be emphasized. The Commission members were saying that the court’s most important role in divorce cases was to provide assistance to the spouses who came before them — the casualties of divorce — that this was to be their role — first and foremost. They said that the courts still could sort out controversies in these cases but that the work of offering help to these couples should override this role. The Commission’s recommendations sounded almost the services the Red Cross offers to disaster victims.
During testimony, the Commission showed it agreed that no matter how highly skilled the judge might be, he could not properly deal with family controversies without special assistance. To meet family needs, a judge would now work together with a professional staff made up of those with extensive experience and training.11
The team-approach to difficult medical problems is the same approach that the courts were to take in order to help these families.
Mandatory procedures to obtain a divorce were to be heavily weighted to encourage couples to avail themselves of all the opportunities available to them in order to try to reconcile their marriages. For those couples who did not reconcile after exhausting all opportunities provided, the goal was to minimize the conflict between a husband and wife during the completion of their divorce.12
* * * * *
The reform effort was driven by the highest ideals. Providing aid and comfort to troubled families while reducing the divorce rate was Governor Brown’s intention. In response to his leadership, the Governor’s Commission proposed a progressive Family Court Act, which offered a type of approach to divorce similar to that used on the battlefield during war, called Triage (pronounced TREE-AZH) and defined as, “the sorting of and allocation of treatment to patients, and especially battle and disaster victims, according to a system of priorities designed to maximize the number of survivors.”14 A Family Court Triage program could refer wounded spouses to needed services, such as alcohol treatment, but it could also be the doorway into a Marriage Hospital where couples could access needed help for their marital relationship.
This was California’s proud vision. Triage and Marriage Hospital are labels derived from the ‘medical model’ that could be applied to the ideas originally put forth by the Governor’s Commission. Using the medical model for relationship-work, we can better understand the job at hand. A relationship is like a physical body — we just can’t see it. And it needs to be given the same help we would offer an disaster victim that is brought to the emergency room.
Those who study the records from the early divorce reform movement will find they had a strong interest in rescuing marriages from the grip of divorce — in order to reduce the number of casualties of divorce, not forgetting the children, who are also casualties of divorce. Children grieve for years over the loss of their intact families. Only recently have we become more aware of the long-term consequences that divorce inflicts on children.15
Judge Pfaff’s early testimony laid out an ethical and humane role for the courts. While the early reformers were demonstrating California’s progressive leadership and its pioneering vision, the state would later fail to include the ‘aid and comfort’ dimension within its final reform. But it would still deliver the ‘easy’ divorce that other states had not been able to do.
* * * * *
When lofty ideals clash with practical realities, dreams can vanish. The cost of setting up statewide mandatory counseling would be steep — estimated at five to ten million dollars a year. Counties would have to finance their own programs and local county board members balked at this burden, seeing it as another unfunded mandate. In the end, their resistance spelled certain doom for this noble idea. But even though plans for these needed services were dropped, re-writing of the laws forged ahead. Now, others took over, picking up where the Governor’s Commission left off.
One person in particular had a personal stake in the outcome of push to change the laws and he worked hard to keep the momentum going. In 1969, James A. Hayes was appointed chairman of the Assembly Judiciary Committee, the committee that would oversee any activity regarding divorce laws. But, even more important, he was also involved in a bitter divorce. In 1966, he had filed for divorce from his wife of 25 years, with whom he had four children. The success of such a law-change would affect his personal situation in two dramatic ways. First, it would make a divorce easier for him to obtain, and second, it would affect the rules for his property-settlement and any alimony payments since ‘fault’ would no longer be considered in the property division. The cost of no-fault divorce would prove to be high for most women — especially women like Mrs. Hayes who had stayed at home to raise her children. James Hayes’ ambitious drive to overcome the obstacles that blocked this bill was motivated by his own personal prospects. The undeniable vested interest he had in the outcome of this law-change was not publicly appreciated until years later. Consequently, he was able to continue in this important leadership role in spite of this unsavory detail. Keeping such a vested interest hidden from the public’s eye is somewhat harder now and once the news is out, it can spell doom for ideas that are promoted to be in our best interest.
The lofty ideals promoted by those in the early reform movement served to ease the way for the vested interests that soon stepped in to take their place. The original proposal put forth by the Governor’s Commission had laid out a two-pronged approach. Changing divorce law was only one part of it. The other part — the services offered to the casualties — was considered an even more important aspect of the reform, but this was the piece that got discarded when the rest of the job was in the hands of one person who served to secretly benefit.
If the recommendations of the Governor’s Commission had been adopted, then there would be no story to tell here. The Hospital-approach would now be used in the courts and the divorce rate would consequently be much lower. Sadly though, the story did not end this way. In fact, California’s early vision of the plan that was supposed to include such services may lie at the heart of the problem of why ‘no-fault’ achieved such swift national success. The early version of the plan may also explain why we have been spellbound by an illusion for so long.
The belief that this law-change would be good for families is what drove this reform idea. This belief, and the accompanying hope that captured imaginations in the early days, may have been the push that opened wide the door to such a radical change — something that had been so impossible to achieve by others.
This enlightened vision for handling divorce disguised the pending law-change in such a way that it looked like a positive development for families. When policymakers in other states had proposed such sweeping change, their constituents quickly let them know that they would have blood on their hands if they tampered so boldly with family stability. In addition, the outcry of conservative interest groups, like the Catholic Church, had previously stymied any proposed alterations to the rules of divorce. But this time, due to the glow leftover from the work of the Governor’s Commission, the imminent danger to families was little-noticed and the final phase of the project was handed over to a person who would reap immediate rewards.
* * * * *
Other constituents got on the bandwagon and pushed for loosening divorce law. Among them were divorced men who were disgruntled by the price they paid for ‘divorce’ — in alimony and property settlements to their former wives.15 These men felt that it was important to change the ‘rules’ of divorce so that men would not be stripped of so much. These divorced men were — typically — already involved with another woman and they thought that men should be able to exit a marriage with more of their property and income so they could re-marry and invest in new families. This constituency was made up of those who had already divorced as well as those who expected they might someday get divorced.
A related constituency included the women who were involved with divorced — or married — men. These women believed they had a right to the resources that were now going to the wives — and they resented this drain on their husband’s — or potential-husband’s — resources.
Assemblyman James A. Hayes deserves to be recognized as the Champion of California’s no-fault divorce law because of his dogged determination to see it through. The final version of the bill was passed on July 23, 1969, and Governor Ronald Reagan — ironically, a conservative Republican — signed it into law on September 4, 1969. Some believe Governor Reagan had no idea what he was, indeed, signing, and that if he had, he would have declined.
This bill wiped out all the previous grounds for divorce and replaced them with a sole standard for divorce —irremediable breakdown of the marriage. Services that were supposed to accompany this law-change, were not included and, in due time, the country would learn that the rug had been pulled out from under marriage.
California’s progressive spirit of change was like the Emperor, who loved to change his clothes. The old laws would make way for the new. They were much finer and could be shown off to the rest of the country. California was proud to be a leader — dressing in its finest. All the rest of the states would soon do the same and no one would notice the scoundrels slipping away with their bags of gold......
1. The little-used ‘incurable insanity’ ground was left on the books. It was the only previous ground for divorce that survived the law-change.
2. Krom, “Divorce Law Reform,”158
3. Krom, “Divorce Law Reform,”158.
4. Krom, “Divorce Law Reform,”156.
5. Krom, “Divorce Law Reform,”159.
6. Krom, “Divorce Law Reform,”160.
7. Krom, “Divorce Law Reform,”160.
8. Krom, “Divorce Law Reform,”160.
9. Krom, “Divorce Law Reform,”161.
10. Krom, “Divorce Law Reform,”163.
11. Krom, “Divorce Law Reform,”164.
12. Krom, “Divorce Law Reform,”165.
13. Krom, “Divorce Law Reform,”165.
14. Webster’s New Collegiate Dictionary, (1980).
15. Wallerstein, The Unexpected Legacy of Divorce.
16. Parkman, “Good Intentions one Awry,” 79, Wheeler, 50-51, 136-138, Kay (1987), 31.
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