ABA FAMILY LAW SECTION MEETS IN D.C., DEBATES DIVORCE REFORM

Once again the American Bar Association's Family Law Section offered Virginia practitioners a unique opportunity to participate by holding one of its periodic national meetings right across the Potomac. The Section (including a few Virginia lawyers) met October 16-19 in the nation's capital, concentrating on national trends and current federal legislation.

Reviewing current federal legislative proposals, the Section members found that there was no area of family law that someone does not want the Federal Government to start taking over. As desperate politicians sought to widen or close the gender gap, and find some issue that will appeal to those interested in "children's and women's issues," the notion that divorce, custody support and other family law issues have any aspect which belongs in the province of state/local concern to be dealt with in diverse local ways was disdained as utterly passé or shouted down as unthinkable. On one issue, however, the Section leaders did a dazzlingly acrobatic 180 and, for the first time in decades, condemned a proposed federal law as invading the sacred state-law/local-practice family law area.

This was the Parental Rights and Responsibilities Act, a rather innocuous-sounding proposal to reaffirm, at least as its backers see it, the right of parents to run their own families and of the family unit to be free, to an extent, from government invasion and interference. Adopting a report from the ABA Young Lawyer's Division, the Section condemned the proposal as one which would interfere with the right of social workers and other government agents to supervise the proper upbringing of children and protect them from incorrect ideology and other baneful parental influences.

Reviewing what was feared to be a national trend that would show up in more than one state legislature, the Section graciously invited several Michigan legislators and other public figures who seek to pass a proposal pending in that state's legislature that would repeal, as a bad idea that had been tried and found more costly than helpful, the most recent expansion of no-fault divorce availability. Their bill would return Michigan to the situation of a few years back when one had to wait a bit longer to get a no-fault divorce, but would still make no-fault divorce available if both sides agree. The proposal was that without consent and without fault grounds you can get separate maintenance, and then you have to do four years of separate maintenance before you are entitled to an unconditional unilateral no-fault divorce. Presumably the separate maintenance is like being divorced except without the ability to remarry -- an "a mensa" divorce. The Michigan reformers were unanimously condemned by the Section Council -- first, for sadistically forcing people to stay together who don't want to stay together. The Michiganders replied, however, there is no holdup when they don't want to stay together: the proposal addresses the situation in which one of them does not want to stay together.

In the course of the discussion one reformer suggested that divorce lawyers are having a hard time overcoming fully the effects of economic determinism, and thus not looking at this 100% objectively. Deep was the umbrage and high was the dudgeon as member after member of the Section Council rose to condemn the invited reformers after this. Some argued that the proposal would actually make far more work for divorce lawyers, and that opposing it was quite self-sacrificial. Several divorce lawyers from the Section leadership expressed what appeared to be an all but unanimous opinion that the proposal would not actually stop anyone from divorcing, but would simply make everyone find fault grounds, leading to an epidemic of perjury, fraud upon the court, and fabricated evidence (presumably offered by lawyers others than themselves, since it would of course be unethical).

The Michigan bill's main sponsor, Rep. Jessie Dalman, had made the mistake of suggesting that if you look at it from the children's point of view, sometimes the idea of staying together for the sake of the children may prove not to be all bad. Their audience, however, was convinced that is the worst thing you could do to the children, and amounts to child abuse. A YLD representative who is being groomed by the Family Law Section for a leadership position in every conceivable way gave an impassioned personal speech on how harmful continuation of marriage by fighting spouses is for their children. She recounted how, as a budding divorce lawyer at age 13, she begged her parents to divorce.

A Rhode Island judge made an eloquent statement that it is scandalous to say the interests of children are unprotected when adults seeking to maximize individual happiness make the private decision to divorce -- his reason being that guardians ad litem are universally appointed in every divorce case in America in which parties have children. How dare you suggest that we don't fully protect children's interests, he demanded. A psychologist from Michigan opined that children would be scarred hideously if their parents were not allowed to divorce and accordingly they were forced to live in unhappy homes.

State Rep. Dalman asked why we, meaning federal, state and local governments, and ultimately the taxpayers, are constantly funding programs to do more and more for parts of families. Michigan's welfare department, now delightfully renamed the Family Independence Agency, is spending its vast sums of time and money not only on children of no marriages at all, but also on huge numbers of children of divorce. She spoke on the unfairness of the current no-fault laws to persons who have done nothing -- in any terms that the law has the courage to define -- to cause the termination of their marriages. While the party who files for divorce is given enormous advantages in the procedural aspects of a Michigan case, the economically superior party is going to continue to have more power in the long run. And when the party who files is the economically superior party, Rep. Dalman observed, the injustice can be spectacular. She felt that it is bad enough for it to be easy to walk away from a relationship, but truly bad for our society when one can just as easily walk away from the responsibility that the relationship has created. Her bill also requires pre-divorce counseling if the parties have children, and she noted it gives a wide range of fault grounds of divorce, including conviction, desertion, alcohol or drug use, domestic violence and "mental abuse" in addition to adultery.

The Heretic guests went away suitably chastised. Harvey Golden of Columbia, South Carolina said he did not consider it polite to criticize the guests but could not agree as to the worth of their proposal, and observed that his fellow practitioners had their nerve being so sanctimonious about the "return of fault" to divorce practice when we all exploit fault evidence every day in hundreds of ways in the course of litigating custody, support and, yes, property division.

A pure no-fault divorce law that does not offer any fault grounds, Mr. Golden said, is wonderfully expedient for expediting court calendars, but so is arbitrary dismissal of every second case, unless you happen to be interested in fairness. Lawyers who think it is their job to make clients feel good about getting a divorce are really confusing their roles with those of mental health professionals, and perhaps mothers. Many good modern advocates seem to stumble over the idea of fairness and justice these days. They must find it too abstract a concept to apply, especially when there are two sides to an issue. And yet, Golden said, the American system of justice built upon the adversary approach depends for its fairness on at least one really fundamental requirement: That misdeeds not be rewarded.

Mr. Golden argued that requiring a spouse to bear the consequences of his or her acts in bringing about the breakup of the marriage is still important. Perhaps it would be OK, he said, "if we called it accountability." If one views marriage as a partnership it is still inherently unfair that the innocent party suffers all the consequences, and economically that is often what happens. Couples reside together, living at least slightly beyond their means, even when they are both gainfully employed. When they separate, it is definitely more expensive to maintain two separate households. In those cases where the marriage ended because of the conduct or desires of one party, and over the objection of the other, is not fair just to let the axe of economic detriment fall where it may, nor to split the property 50/50. This is especially so if the economically dependent spouse relied upon the continuation of the marriage as a career and decided to forgo other educational or career opportunities and sacrificed the best years of life for a marriage which the other gives up for reasons amounting essentially to adventure or diversion.