No-fault Divorce: A Quiet Legislative Coup?

(FIRST OF FOUR ARTICLES) Nearly half of all the cases heard in I Michigan's circuit eourts in a year's 1 time are divorce cases. Amazed? Even circuit judges are taken aback f by that knowledge. I But what is more astounding to some I persons is the fact that circuit judges I will use a brand new law in divorce I cases come Jan. 1 - a law that sneaked I through the Legislature virtually unnotI iced by all but the most veteran Lansing I watchers, a law thát is so vague as to leave widespread doubt - intentionally I or not - about what it really means. The statute calis for "no-fault" divorce I and was approved by the Michigan legisI lature this summer and signed by Gov. I Milliken July 29. It goes into effect Jan. 1 for all new divorce actions and for any pending cases if the .parties make the switch before I their case comes to trial. In essence, the new law gets rid of the I eight grounds for divorce in the present I law and substitutes a no-fault ground "... that there has been a breakdown of I the marriage relationship to the extent I that the objects of matrimony have been I destroyed and there rematas no reasonaI ble likelihood that the marriage can be I preserved." The law is silent about what constiI tutes a "breakdown of the marriage reI lationship"; about what the "objects of I matrimony" are, and about what comI prises a "reasonable likelihood that the I marriage can be preserved." This absence of definition has caused J some persons to charge that the law will 1 turn circuit eourts into divorce milis, if it is liberally interpreted, and others to suggest that, in the hands of a strict judge, the new law will come out looking much like the old one. Still others maintain that a judge who believes in the indissolubility of marriage has enough leeway under the new law to make it virtually impossible for some people to untie the knot. An Ann Arbor attorney who helped draft the legislation feels that it will have to be amended vëry quickly if the "legislative intent" is going to be preserved. That intent, according to him and others, is that the simple filing of a divorce suit constitut.es enough evidence of a "breakdown of the marriage relationship" to warrant a divorce decree. The lawyer also thinks the Legislature did not intend that judges should have an option in granting divorces. In other words, the assumption in the new law is that divorce is automatic upon request. Judges, however, are not of one mind about how to interpret the new law. Washtenaw County Circuit Judge William F. Ager Jr. said recently that an informal poli he took of 10 Wayne County judges sitting around a lunch table showed that there were 10 different ions about what will happen Jan. 1. The no-fault divorce law seems to have been the legislative bram child of Democratie Rep. J. Robert Traxler of Bay City who heads the House Judiciary Committee which sent the no-fault bill to the House floor for approval. According to 75th District Rep. David M. Serotkin, also a sponsor of the bill, Traxler asked the Michigan Law Revisión Commission to study the concept of no-fault divorce. Serotkin, who spoke recently in Ypsilanti, said a Wayne State University family law professor was then asked by the Commission to come up with a proposed bill. She studied the three other states which have no-fault laws and writings on the subject and ended up copying Iowa's law, which the Commission recommended as a good choice for Michigan. In the hands of the Legislature, however, the Iowa wording underwent many mutations. "You know," Serotkin said, "there's always a good deal of consideration in a legislative committee given to guessing what departure from tradition will be accepted. Most often, first töjes don't pass at all." He said the House judiciary committee expected a "great deal of opposition on the floors of the House and Senate." To avóid this, he added, committee members "prepared a bilí that was vague." Serotkin noted in an aside that many members of the legislature, havihg had "first-hand experience" with divorce, wanted the new law to "bear more resemblance to reality." (He did nqt say whether he referred to the male or female members of the legislature.) As it turned out, however, there was almost no opposition and little debate about the proposed law. "When the vote was called, suddenly there was this big, green board of votes," he said. (The electronic voting mechanism in the House registers green lights for "yes" votes.) "Had the committee known that the general body of the legislature was as sympathetic to the proposition of nofault, it would have gone further in this bill," Serotkin maintained. "We will have to come back to fill in some of these uncertainties." Outside the legislature, there has been some push for no-fault laws from professional groups - marriage counselors, clergymen, psychologists and others. The prevailing opinión about the nofault concept seems to be that it will smooth the raw emotional edges I duced by the divorce process. Washtenaw County Friend of the Court Richard S. Benedek, whose office sees all couples with minor children who seek a divorce, says, "The facts of life aren't that one person's all good and one's all bad. It seems like everything gets off to a better start if you aren't socked with a complaint that says you've been guilty "When the vote was caec, suddenly there was this big, green board of votes." -State Rep. David M. Serotkin of extreme and repeated cruelty." As John W. Reed, U-M law professor and director of the Institute of Continuing Legal Education, put it: "The feeling seems to have been that it was one of those ideas whose time had come. With changes in mores and thinking, it became somewhat acceptable and legislatively feasible." However, some women - especially those concerned with women's rights - are suspicious. They feel the law wil! make it more difficult for a woman with children and low job skills to get a favorable property settlement. If there is no assignment of fault in divorce, they say, there will be no leverage to use when discussing property settlements and child support. They also think that, because the legal system is dominated by men, women will receive short shrift. Their seasoning is that what is "fair and equitable" to a man's way of thinking may not be to a woman's. "It just comes at the wrong time in relationship to the economie status of women," a local attorney, who is a woman, said. "Michigan is only the fourth state to pass a no-fault law. What's the rush?" When making its recommendations about no-fault, the Michigan Law Revisión Commission noted that the legislature had several alternatives. - It could totally revise the marriage and divorce laws in the state and, in the process, institute no-fault divorce. - It could add a no-fault ground to all the other divorce grounds then on the books. - It could substitute one no-fault ground for all the others. The legislature chose the third route, as was recommended by the Commis-B sion. Even though many experts believel family law needs scrutinizing and 1 ing, the Commission cautioned against I total revisión at this time because of the I lengthy process invólved. But, as the local attorney said, what I was the rush? Wouldn't a studied, intelligent revisión I of family law have been better in the 1 long run? Perhaps Rep. Traxler, who babied the I no-fault divorce bill along, gave some I clue when he told a group of lawyers I who met to discuss the law that there is I a "quiet men's liberation movement I ing on" in Lansing these days. (Tomorrow: What does the no-fault I law say?) - - - - i __ accent on women I Section Two December 19, 1971 I Pages 15 to 28 I