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Divorce Law S Vagueness Upsets The Judicial Seesaw

Divorce Law S Vagueness Upsets The Judicial Seesaw image Divorce Law S Vagueness Upsets The Judicial Seesaw image
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(LAST OF FOUR ARTICLES) Will hundreds of eager couI pies beat paths to the doors of I Michigan's circuit courts aft■ er the first of the year when ■ the no-fault divorce law takes ■ effect? If the experiences of CaliI fornia and Iowa are any indi■ catión, there will be an initial I surge of divorce actions and I then the activity will Ie vel off land drop back nearly to its ■ previous rate. The initial rise in divorces ■ is credited to the law's "clean I up function" - it will allow ■ persons who couldn't get diI vorces before, for one reason I or another, to start the wheels ■ turning. But many lawyers contend I that even now divorces are so I easy to get in Michigan that Bthe new law, with its preten■ tions of liberality, won't creI ate that much more of a mar■ ket for divorce. Washtenaw County Friend ■ of the Court Richard S. BeneIdek says that 1,294 divorces Hwere heard in Circuit Court in Bl970 and 866 divorces were Igranted. What the new law may do I - if lawyers and judges don't Bcapitalize on its vagueness - Bis clear the courtroom air of [the bickering associated with ? divorce. ' "In traditional divorce cases the fault myth has been u s e d as blackmail," says John W. Reed, director of the U-M Institute of Continuing Legal Education. "The purpose of this law is to make divorce cleaner." But in making it cleaner, won't it make it too easy, too clean, too much a matter of whim? Reed feels that the vagueness of the law on certain points and the presence of certain language will guard against the marriage partner who might make a mockery of the system. The law says evidence of a marriage breakdown must be presented in open court and also provides t h a t a judge needn't be bound by the fact that both spouses want out of a marriage. Because the law appears to give the judge this discretion, Reed feels it will make divorce "a formal and little bit difficult thing." (Whether judges will use that discretion remains to be seen.) Yet Reed and others who are acquainted with the law also say that, as he put it, "there's no way a judge can deny divorce." Reports indícate that no divorces have M been denied as yet under the California or Iowa no-fault statutes. "I suppose," Reed adds, "one might argue if there's not going to be a denial of divorce, why can't people just file a complaint in court and get a divorce? "We just didn't want to make it that easy. We wanted to give it some dignity." In California, a couple need only fill out the correct forms and the divorce is practically final. It's not clear whether a lawyer will always be necess a r y in Michigan divorce cases eithr - but in Michigan, propejrty settlements often necessitate legal assistance, while in California, property is "communal" and is automatically split 50-50. "Even now the proceeding in court is a rather perfunctory one. The new law will elimínate knock-down, dragout battles, but those are not typical anyway," Benedek says. Of course, some observers feel the law will simply créate its own brand of contests. One by-product may be, as Washtenaw County Circuit Judge William F. Ager Jr. says, "the innocent party many times will suffer.". But there seems to be no ÊÊ remedy. In the old law there was a provisión for "separate maintenance" which allowed the couple to remain legally married, but one party supported the other financially. This was often used in cases where religious beliefs prevented a spouse from suing for divorce. But under the new law, separate maintenance is likely to be very rare because of a curious clause that says if one spouse files fór separate maintenance and the other spouse cross-files for divorce, the judge only may grant a divorce. "In some religious groups, there's going to be difficulty in accepting some of the concepts of no-fault divorce," admits Msgr. Clifford F. Sawher, president of Michigan Inter-Professional Association on Marriage, Divorce and the Family, who is nevertheless a proponent of the law. He also I is pastor of Assumption Grotto Catholic Church in Detroit. "It seems to be directly opposed to our concept of the permanency of marriage - I the concept of 'what God has joined together, let no man I put asunder.' " Sawher suggests that I gious persons (as well as all I others) should examine I riage more closely before I changing the yows. He also I feels that there should be I compulsory preparation for I marriage - with the f orce of I law to back it up. "There was a time not too I long ago when I was among I those who were quite against I divorce. There was a time I when divorce was not an I ceptable thing and those who I went through it were kind of I put out of the community," I Sawher remarks. "My own thinking has gone I throilfrh fln PVAiilHmvanr nrn. I associated with its circuit court. All couples with children who are contemplating divorce must see the marriage counselor, who is attached to , the Friend of the Court office. Judge Ager feels that the proviso is another which guards against the quickie, Las Vegas-type divorce. Lawyers express doubt that the new law will change their lives much. Their jobs still will be to follow the wishes of their clients. However, a few have I gested that, since huge property settlements may be harder to come by, so may j the reputations of big-time div o r c e lawyers who prided themselves on the settlements they could win for their clients. Whatever behavior changes the new law might bring about, chances are it still won't rub out the tendency for spouses to privately fix the I accent on women V.mWMIHCWWMWWJWHWMMAIAWJJJH.JJ.mj.iM....l - ...1.. - -i W-] Iblame for the divorce on each I other. "The types of problems we Ihave here are not readily I cured by legislatura," Benedek I points out. "The law change doesn't Imean the couple vill be able Ito get along with eaeh other land it doesn't mean there Iwon't be problems when it I comes to support payments land visitation rights. "Basically, we'll still play I the same games of winnerI loser, good guy-bad guy." It may even be that the new I law will be in for some rough I sledding constitutionally. In ■ Iowa, for example, two test I cases are pending. One says the law is too am■ biguous and the other con■ tends that the legislature unI lawfully delegated its authoriIty to the courts in letting ■ them decide the criteria for divorce. ( The outcome of these cases f is likely to affect any I lenges to the Michigan law. "I'd just love to test this I law," one Ann Arbor attorney I stated in a moment of pique. No-fault divorce will not be I as easy as saying "I divorce I you" three times to your I spouse and walking out the I door. Nor will it fully I nate the fault factor. And, as I with any new law, the waters I will be muddied for a while. "What I'm worried about is I the balance," says Ann Arbor I attorney Shirley J. Burgoyne. I "You throw the balance out of I kilter when you change a law I and you never know where it's going to come back to. Of course, no system is perfect . . ." The law probably will leave the judicial seesaw flapping for some time. Bess. Now divorce is not I I ceptable but the process of I I vorce has become I I ble." M Sawher hopes that the I I fault concept will correct this I I and ease the trauma of I 1 ration. M Í "There will be the removal I l of much of the stigma, much Eg I of the neuroticism that' s I i volved' in children of unhappy I l marriages," he says. "And I I 1 it's going to have an impact lp ■ in getting marriages based on i I neurotic choices of the I m I ners straightened out." ! m By making divorce more Eg I available, Sawher thinks 1%: I sound marriages will no i I er be perpetuated in a ■" ■ die fashion and, as a result, B I children of those marriages ■ $1 will be brought up in a ■ Pi ier atmosphere. & "it is my hope that judges I I will not interject the concept I ; I of fault or guilt so that we I I really are not far advanced I I from where we were before," mL i he adds. Washtenaw County is one of I only two counties in the state I to have a marriage counselor