l JJ . ' ) ƒ ' f ( ' 'The divorced are theffaternity orfhose who have gone through an emotional ravaging that, short of starvation, imprisonment, disease and death itself, is probably equal to most that the world has to offer.' - Joseph Epstein, 'Divorced in America' "Divorce is to the practice of law as proctology is to medicine.' - Michael Wheeler, 'No-Fault Divorce' (EDITOR'S NÖTE: Is the legal profession corrupt? Fairly or unfairly, the revelations of misdoings by lawyers in the Watergate affair have made that a popular notion today, and distrust spilis over into areas of law that impinge more directly on the ordinary citizen. NEA Writer Lew Koch explores the subject in a six-part series beginning today, and News Staff Reporters add the perspectives of local commentators.) By Lew Koch (Newspaper Enterprise Assoclation) I There is no such thing as an amicable divorce. It's just that some husbands and wives are more adept at emotionally and I . economically eviscerating their spouses thanothers. Despite the advent of "no-fault" divorce in 1970, the lawyer who fails to I wam nis cliënt that he or she may suffer I massive retaliation at the hands of the "wronged spouse" - either doesn't understand the law or human nature or both. On orders from the cliënt, the lawyer and the court may do their damndest to punish and avenge past marital transI gressions to the fullest extent the law I permits. "No-fault" divorce was the first attempt to separate the process of divorce from the concept of blame. Before"no-' I fault" a spouse had to be proved guilty of, say, adultery, extreme cruelty, habitual drunkenness, insanity or the like. Of course, the other spouse was judged as "innocent." Even if the lawyI ers to the divorce proceedings didn't say so in open court, they knew this concept was absurd. Today, all but seven states (Illinois, Massachusetts, Mississippi, Montana, Ohio, Pennsylvania and South Dakota) ' - - ■ have some kind of "no-fault" divorce statutes. Those laws permit the "dissolution of the marriage" because of "irreconcilable differences which have caused the irremediable breakdown of the marriage." Most divorce lawyers (who prefer to cali themselves matrimonial attorneys much in the fashion of garbage collectors who like to be called sanitary engineers) fought the concept of "no-fault" divorce. They predicted chaos in the courts. In reality what they feared was an untimely end to drawn-out divorce suits and accompanying sky's-the-limit fees. Well, no-fault divorce is here to stay, but so are the high legal fees. There has been, nevertheless, one unexpected fallout from no-fault - the "do-it-yourself" divorce. It is more possible for a carefully reasoning couple, say in their early 20's, with no children, little property.and a dispassionate disgust with their marriage, to sit down, fill out 'a number of legal forms and then, for a modest fee, present them to a judge and get their own divorce - all without a lawyer . That's the way about one in every 20 divorces in California is being handled. Your lawyer may teil you that many judges are horrified by the appearance of two citizens standing in front of the bench demanding legal satisfaction without attorneys. But what your lawyer won't teil you is that many of those same judges are equally appalled by the ineptness of many divorce lawyers who appear in court acting as counsel. Almost to a man, divorce lawyers despise "do-it-yourself" They say that even in the 43 states which do not require "grounds" for a divorce, there is still ampie territory available for dispute and error: technical (result - bigamy), taxes (here comes the I.R.S.), child support (back in court, this time with lawyers), community debts (credit agencies), custody and visitation (back to court again), insurance (who pays?) and community property (who gets?) . Despite no-fault divorce, the fact is that legally, divorce remains an adversary situation: one person gets custody of the children, the other visitation rights; one spouse gets the house, the other looks for an apartment; one spouse, usually the wife; gets alimony andor child support, the husband just pays and pays. Because one spouse gets and the other gives, divorce proceedings are usually filled with perjury, evasion and massive attempts at fault-finding. As Joseph Epstein puts it in nis recent book, "Du vorced in America," "The process of divorce offers greater opportunity for mental cruelty than marriage itself ." "However impeccably it is carried out with regard to legal niceties, divorce is corrupt at heart. That is not exactly a club secret, or if it is then a very large club is in on it, for it is something known I to everyone who has ever been divorced, I to every lawyer who has ever tried a I vorce case, and to every judge that has ever presided over a divorce trial. Corruption is built into the very system of American divorce law," according to Epstein. The effect of divorce on children, clearly the most significant question of all, remains one about which all too little is known. In only one state, Wisconsin, is it mandatory for a guardián ad litem, a lawyer for the children, to be appointed in contested divorces. The only obligation of the guardián ad litem is to protect I the best interest of the child, not the I warring parents. Don't expect youf divorce lawyer to I urge you and your spouse to reconcile - I because if you do, there goes his high fee. Although your divorce lawyer won 't suggest it, a couple cosidering divoree should spend a day oit two in divorce court, listening to other couples go through the procedure. Then, perhaps, I they might consider going to a legitímate I I marriage counselor. Ideally, there should be fewer divorce I I lawyers and more judicial arbitrators j I whose job it would be to determine I jwhether a divorcing couple has made an jequitable, sensible compact to end their marriage - without lawyers. Although this arbitrator would have some judicial powers, he or she would be paid by both parties to the divorce. If the couple cannot agree, then the arbitrator should send each of the parties to I rate attorneys and assign a lawyer for I any children involved. But if history is any indication, divorce I lawyers will, all too unfortunately, be I with us for a long time to come. NEXT: Negotíatíng the 'value' of your injuries ArhorNews SundayJuly21 1974 Section Two Pages 19 to 34
Rights Held By
Donated by the Ann Arbor News. © The Ann Arbor News.