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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

Historical Perspective and Current Trends in the Legal Process of Divorce
Sanford N. Katz


  1. The changes referred to in this article are discussed in Weyrauch, W.O., Katz, S.N., and Olsen, F.E. Cases and materials on family law: Legal concepts and changing human relationships. St. Paul, MN: West Publishing Co., 1994. For a discussion of many changes that have taken place and explanations for them, see Weyrauch, W.O., and Katz, S.N. American family law in transition. Washington, DC: Bureau of National Affairs, 1983, pp. 1–4, 115–18, 225–28, 350–53, 495–98.
  2. See note no. 1, Weyrauch and Katz, pp. 1–4.
  3. Consider, for example, an excerpt from a contract entered into in 1877: "We, the undersigned, hereby enter into a copartnership on the basis of the true marriage relation. Recognizing love as the only law which should govern the sexual relationship, we agree to continue this copartnership so long as mutual affection shall exist, and to dissolve it when the union becomes disagreeable or undesirable to either party. We also agree that all property that shall be acquired by mutual effort shall be equally divided on the dissolution of said copartnership. Should any children result from this union, we pledge ourselves to be mutually held and bound to provide them support whether the union continues or is dissolved." The Supreme Judicial Court held that, as a marriage contract, it was unenforceable. Since by 1892 the parties had not gone through a formal marriage ceremony or had lived in a state that legally recognized their relationship as marriage, they were not married. Peck v. Peck, 155 Mass. 479, 30 N.E. 74 (1892). It is perfectly possible that now in some American states such a contract would be enforced not as a marriage contract but as a cohabitation contract.
  4. This requirement was based on English law: "[A] woman acquires the domicile of her husband on marriage, and retains this dependent domicile throughout coverture." A.J. Bland. The family and the conflict of laws in a century of family law. R.H. Graveson and F.R. Crane, eds. London: Sweet & Maxwell, 1957, p. 376.
  5. There is conflict in American case law as to whether custom or law is the source of a woman's assuming her husband's surname upon marriage. In State v. Green, 177 N.E. 2d 616 (1961), the Court of Appeals of Ohio stated at p. 619: "It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father. The State of Ohio follows this custom but there exists no law compelling it." However, in People v. Lipsky, 63 N.E.2d 642 (1945), the Appellate Court of Illinois stated on page 644: "[I]t is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband's surname, with which is used her own given name." Later in the opinion, the court quotes Chapman v. Phoenix National Bank of City of New York, 85 N.Y. 437: "For centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband's surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby."
  6. As late as 1993, this issue has been litigated. In a May 26, 1993 Nevada Attorney General's Opinion (Opinion No. 93-12), it was stated that a married woman does not have to change her surname to that of her husband and register again to vote under that name. The facts that led to the conflict involved the Eureka County Clerk, who removed the married woman's name from the voter registration rolls and required her to change her surname to that of her husband and register again to vote under that name. The case is reported in Family Law Reporter (June 15, 1993) 19:1376.
  7. See note no. 1, Weyrauch and Katz, pp. 225–28.
  8. The historical antecedent of this statement seems to be that made by Lord Hale, Chief Justice of the Court of King's Bench from 1671 until 1675. Lord Hale wrote in Hale P.C. 1:629, "but a husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retreat." This statement and cases abolishing a husband's immunity from prosecution for the rape of his wife are cited in the Georgia case of Warren v. State, 336 S.E.2d 221 (1985).
  9. It is interesting to read divorce cases decided before the concept of the battered child and wife became a recognized phenomenon. Judges limited their opinions to the issues involved and did not comment on even the most outrageous fact pattern that led up to the court case and appeal. To illustrate this point, see Warner v. Warner, 76 Idaho 399, 283 P.2d 931(1955).
  10. Scherer, D.D. Tort remedies for victims of domestic abuse. South Carolina Law Review (1992) 43:543.
  11. A comprehensive study of all the child abuse and neglect statutes in the United States was undertaken in the mid-1970s by Katz, S.N., Howe, R.W., and McGrath, M.S. Child neglect laws in America. Family Law Quarterly (1975) 9:1. Although the data may be out of date today, the collection serves as a historical document for purposes of comparisons with contemporary laws on child abuse and neglect.
  12. See Katz, S.N. When parents fail. Boston: Beacon Press, 1971; Wald, M. State intervention on behalf of "neglected" children: A search for realistic standards. Stanford Law Review (1975) 17:985–1040.
  13. In the early 1960s, the Children's Bureau of the U.S. Department of Health, Education, and Welfare set up a working group to study the law's response to child abuse. It was at this group's meeting that Dr. C. Henry Kempe presented his findings regarding battered children. This author was a member of the working group which was led by the then chief of the Children's Bureau, Katherine Oetinger. The result of that group's work was the Model Mandatory Child Abuse Reporting Act, which required certain professionals to report incidents of child abuse. There were obstacles that we met in proposing the act to states. One concern was family privacy and the confidentiality of the doctor-patient relationship. It is interesting to observe the advancements that have been made in 30-odd years and how there are few questions about privacy and confidentiality today.
  14. Nevertheless, some people do assume that they are divorced because they have deserted their spouses or gone through certain motions or signed legal documents in a lawyer's office. Legally, however, they are not divorced. In a 1961 law review article Professor Henry Foster coined the phrase "common law divorce," which he defined as "the private termination of marriage, independent of judicial action, which may be relied upon by the parties as carrying with it a privilege to remarry." There is no such doctrine as "common law divorce" in American law. Foster, H.H. Common law divorce. Minnesota Law Review (1961) 46:43,58–62.
  15. For a history of the law of divorce procedure, see Clark, Jr., H.H. The law of domestic relations in the United States. St. Paul, MN: West, 1987, pp. 405–19.
  16. This was called the defense of recrimination. It has been abolished in the United States. Katz, S.N., and Raskin, M.G. The dying doctrine of recrimination in the United States of America. Canadian Bar Review (1947) 35:1046.
  17. The Divorce Reform Act of 1966 changed the law to broaden the grounds. The act became effective on September 1, 1967. See New York Law 1966 Ch. 244, Sec. 15.
  18. This passage is cited in Wels, R.H. New York: The poor man's Reno. Cornell Law Review (1950) 35:303–4. In his article, Wels discusses "the mockery and the fraud attendant upon divorce proceedings" in New York.
  19. See note no. 18, Wels, p. 326. Wels writes:"Our present laws [referring to the laws of New York], from a lawyer's viewpoint, are bad because of the corrupting effect which their administration has had upon our courts. The keystone of our Western democracy is the integrity and honesty of our courts, and the knowledge that any citizen who has been aggrieved will obtain just and honest dealing there. Our divorce practice has become an evil in that it has corrupted and degraded those courts."
  20. See note no. 15, Clark, p. 496.
  21. For a full discussion of fault and no-fault divorce, see note no. 15, Clark, pp. 496–528.
  22. A case that illustrates this point is Jarrett v. Jarrett, 78 Ill.2d 337, 400 N.E. 2d 421 (1979), where the Illinois Supreme Court held that a divorced mother who lived with a man to whom she was not married was denied custody of her child because of her immoral conduct. To the Illinois Supreme Court, such conduct "debases public morality." Mrs. Jarrett appealed the decision to the U.S. Supreme Court, which denied certiorari. 449 U.S. 927 (1980).
  23. The reform movement, especially in California, is discussed in Kay, H.H. Beyond no-fault: New directions in divorce. In Divorce reform at the crossroads. S.D. Sugarman and H.H. Kay, eds. New Haven, CT: Yale University Press, 1990, pp. 6–36.
  24. See note no. 23, Kay, pp. 67.
  25. See note no. 18, Wels, p. 306. The same can be said for grounds of divorce. For example, in writing about New York divorce law when adultery was the only ground for divorce, Wels writes: "In establishing adultery at the time [in 1787] as the sole ground for divorce, the Legislature then intended to make divorce as difficult as possible for the purpose of preserving the family unit. For many years this result was attained, and the statute exercised a severe restraint upon divorce actions."
  26. Blake, N.M. The road to Reno. Westport, CT: Greenwood Press, 1962. In the 1940s Arkansas, Florida, and Idaho had a reputation of "key[ing] their laws to the revenue of the divorce trade, . . . [seeking] such traffic to compensate for the lack of real gold mines within their boundaries." See note no. 18, Wels, p. 304. It should be noted that, unless both husband and wife subject themselves to the jurisdiction of a divorce court, that court can only terminate the marriage. It does not have the power to assign property or custody of children. See Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957).
  27. See note no. 15, Clark, pp. 413–14. The durational residency requirements of most states are listed in Walker, T.B., and Elrod, L.H. Family law in the fifty states: An overview. Family Law Quarterly (1993) 26:319,340.
  28. An illustration of this point is the Florida case of McClelland v. McClelland, 318 So. 2d 160 (1975), where the District Court of Appeals permitted the wife to plead adultery as the cause of an irretrievably broken marriage.
  29. This was emphasized in the Florida case of Ryan v. Ryan, 277 So. 3d 266 (1973), where the Supreme Court of Florida wrote that a judge is more than a ministerial officer in divorce cases. To the Supreme Court of Florida a judge must make a "proper inquiry" to determine whether a marriage is irretrievably broken (the no-fault basis for divorce in Florida).
  30. Deborah L. Rhode and Martha Minow observe that, although decreasing acrimony and hostility between the parties was a worthy goal, the early reforms in no-fault divorce did not pay sufficient "attention to vulnerable groups . . . ." They write: "Early no-fault reforms gave no special attention to the concerns of particularly vulnerable groups such as displaced homemakers with limited savings, insurance, and employment options; families with inadequate income to support two households (a problem disproportionately experienced by racial minorities); or couples with no children, no significant property, and no need for a formal adjudicative procedure. Nor was child support central to the reform agenda; it appeared only as a side issue, buried within custody and other financial topics. . . . Reformers also neglected the impact of post divorce property divisions—such as the forced sale of the family home—on dependent children. And what was most critical, no-fault initiatives omitted criteria for assessing the outcomes of divorce, outcomes affecting not only the parties and their children but subsequent marriages, stepfamilies and public welfare responsibilities." Rhode, D.L., and Minow, M. Reforming the questions, questioning the reforms: Feminist perspectives on divorce law. In Divorce reform at the crossroads. S.D. Sugarman and H.H. Ray, eds. New Haven, CT: Yale University Press, 1990, p. 196.
  31. Marvell, T. Divorce rates and the fault requirement. Law and Society Review (1989) 23:542–65.
  32. See note no. 31, Marvell, p. 543. This statement is attributed to Thomas Marvell who reviews the literature dealing with the impact of divorce rates and the advent of no-fault divorce. He maintains that one cannot make a blanket statement that no-fault divorce has had no effect on the divorce rates. He criticizes the research done in the field, claiming that the methods used (for example, cross-sectional design and time-series analyses) were not well suited for the research. He claims that "the visual observation of graphs" is "unlikely to uncover subtle effects." Further, he states that some studies used incomplete data (like petitions filed instead of divorces granted) and incorrect dates for the passage of laws. Another view is stated by Herbert Jacob. He writes: "It is true that divorce rates rose sharply during the period that no-fault divorce and the other divorce law changes were being made. However, every study of the impact of these laws on divorce rates has concluded that no relationship existed between the introduction of no-fault and the rise in divorce." Jacob, H. The silent revolution. Chicago: University of Chicago Press, 1988, p. 162. For another view, see Zelder, M. The economic analysis of the effect of no-fault divorce law on the divorce rate. Harvard Journal of Law and Social Policy (1993) 16:241. Professor Zelder argues that "no-fault divorce law should be expected to increase the divorce rate . . . . The prediction that no-fault divorce law will increase the divorce rate seems obvious; commentators perceived the switch from fault to no-fault as a shift to 'easier' divorce laws, so more divorces would be expected to occur. Whether or not divorce became easier, however, the American divorce rate did not increase under no-fault during the 1970s as a consequence of divorce becoming easier."
  33. Weitzman, L.J. The divorce revolution: The unexpected social and economic consequences for women and children in America. New York: Free Press, 1985, p. 366. Weitzman's research has been both praised and, of late, highly criticized. For example, Herbert Jacob writes: "Weitzman does not distinguish between the effects of no-fault and the new property division rules because an equal division rule was adopted along with no-fault in California, where she obtained most of her data.... Another problem is that.... the Weitzman.... analyses focus almost entirely on asset division, alimony, and child support.... There are good reasons, however, to surround a discussion of these resources with caveats, because they may reflect changes in the property division and child support statutes as well as the impact of no-fault." Jacob, H. Another look at no-fault divorce and the post-divorce finances of women.Law and Society Review (1989) 23:95–97.
  34. See note no. 32, Jacob, p. 111.
  35. The research is summarized in Bianchi, S.M., and Spain, D. American women in transition. New York: Russell Sage Foundation, 1986.
  36. "Changed circumstances" is a legal term. It denotes that important facts unknown or not able to be determined at the time of divorce have arisen, thus justifying a hearing which might result in a modification of the original divorce decree.
  37. There is a distinction between working in the home and working outside the home in the "commercial work force." Whether a person (usually the wife and mother) works in the home or outside the home, it is still "work." The difference is that working at home is devalued in our society while working outside the home or in the commercial world is not. See note no. 30, Rhode and Minow, and note no. 23, Sugarman and Kay, pp. 193–94.
  38. For a discussion of both systems, see Glendon, M.A. The transformation of family law. Chicago: University of Chicago Press, 1989, pp. 116–47.
  39. The five community property states referred to are Arizona, Idaho, Nevada, Texas, and Washington. The four are California, Louisiana, New Mexico, and Puerto Rico. For a full discussion of community property, see McClanahan, W.S. Community property law in the United States. Rochester, NY: The Lawyer's Co-operative Publishing Company, 1982, pp. 531–46.
  40. See note no. 39, McClanahan, p. 35.
  41. A recent illustration of this principle is the case of Elkus v. Elkus, 572 N.Y.S.2d 901 (A.D. 1 Dept. 1991), in which the New York Supreme Court (Appellate Division) held that Mr. Elkus, the husband of Metropolitan Opera star Frederica von Stade, had a property interest in Ms. von Stade's operatic career.
  42. Professor Mary Ann Glendon was one of the first scholars to bring this phenomenon to the attention of others. Glendon, M.A. The new family and the new property. Toronto: Butterworths, 1981. In 1981 she wrote that employment ties (the employer's inability to fire an employee without cause) were more secure than family ties (because of no-fault divorce, where a spouse may leave another spouse without cause). Professor Glendon's observations were more true in the 1970s and early 1980s than they would be today. Over the past decade the employment bond itself has loosened considerably. The employment relationship today appears little more stable than the marital relationship itself. The fastest growing area in the employment sphere is multiple job holding and contingent employment arrangements. On this phenomenon see, Kohler, T.C. Individualism and communitarianism at work. Brigham Young University Law Review (1993) 2:727-41. Professor Kohler writes on p. 736: "It may be that instability increasingly characterizes many of the significant relationships among Americans: employment relationships in the U.S. now last an average of 4.5 years, while the average marriage lasts but seven. Trends are not wholly clear, but the average length of both may be on the way down."
  43. Golden, L.J. Equitable distribution of property. Colorado Springs: Shephard's/McGraw-Hill, 1983, pp. 262-65. See Turner, B.R. 1990 supplement to equitable distribution of property. Colorado Springs: Shephard's/McGraw-Hill, 1990, pp. 248–49.
  44. See W. Va. Code Sec. 48-2-32 (Supp. 1985) cited and discussed in Ellman, I.M., Kurtz, P.M., and Bartlett, K.T. Family law cases, text, problems. 2d ed. Charlottesville, VA: Michie, 1991, p. 234. Ellman, Kurtz, and Bartlett have written:"It is often said that the homemaker wife may be essential to her husband's market success. But while it may be clear that her services and support added greatly to his comfort, or to his emotional health, it would be harder to show that her services made a significant contribution to . . . 'the acquisition, preservation and maintenance or increase in value of marital property.' Thus such language, if seriously applied, would not leave much for many homemakers. . . . It thus matters greatly whether a 'homemaker's economic contribution is equal, or merely to create an opportunity for the homemaker to try to show how her services contributed to the parties' assets."
  45. These factors include: duration of the marriage, age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or an addition to maintenance, and the opportunity of each for future acquisition of capital assets and income. Statutes also state that consideration should be given to the contribution or dissipation of each party to the acquisition, preservation, depreciation, or appreciation in value of the respective estates, and as the contribution of a spouse as a homemaker or to the family unit. Uniform Marriage and Divorce Act, Section 307. Alternative A. Family Law Reporter, Section 201:0004.
  46. See note no. 38, Glendon, p. 228.
  47. For a full discussion of the mechanics of the division of marital property, see note no. 43, Golden, pp. 233–82.
  48. See note no. 44, Ellman, Kurtz, and Bartlett, pp. 227–42.
  49. Indeed, the length of a marriage is one of the factors that judges must consider in making an equitable assignment of marital property. See note no. 44, Ellman et al. Also see Inker, M., Walsh, J., and Perocchi, P. Alimony orders following short-term marriages. Family Law Quarterly (1978) 10:91.
  50. See note no. 15, Clark, p. 619.
  51. See note no. 1, Weyrauch and Katz, pp. 319–20.
  52. The 1963 Supreme Court of Washington case of Dakin v. Dakin, 62 Wash. 2d 687, 384 P.2d 639 (1963) illustrates this point: "The record shows that the plaintiff [wife] has no children to support or care for; that she was 53 years of age at the commencement of this action; that she was extremely nervous and upset at the time of the trial; but, otherwise she is an able-bodied woman; that, because of her past condition, she has been unable to maintain steady employment; that she attended teacher's college for two years and taught school for four years thereafter; that she has had considerable experience as a social worker, although no formal training. It is the policy of this state to place a duty upon the wife to gain employment, if possible. *** . . .We think that [the plaintiff] should be encouraged to rehabilitate herself and that, within a reasonable period, she may become self supporting. Although she may have been nervous and upset prior to her decree of divorce, there is no evidence which indicates this condition is of a permanent nature. Except for this condition, she appears to be an able-bodied woman capable of future employment. We conclude that alimony should be awarded which is adequate for the purpose of providing for her during her transitional period."
  53. The following case is cited and discussed in note no. 1, Weyrauch and Katz, pp. 85-90. An early case that illustrates this point is Morgan v. Morgan, 81 Misc. 2d 616, 366 N.Y.S.2d 977 (1975). This New York case involved a wife who had financially helped to put her husband through law school. After divorce, the wife wanted to enter medical school. Her husband refused to support the endeavor. The trial court judge wrote: "In my opinion, . . . under these circumstances, the wife is also entitled to equal treatment and a 'break' and should not be automatically relegated to a life of being a well-paid, skilled technician laboring with a life-long frustration as to what her future might have been as a doctor, but for her marriage and motherhood. I am impressed by the fact that the plaintiff [wife] does not assume the posture that she wants to be an alimony drone or seek permanent alimony. Rather she had indicated that she only wants support for herself until she finishes medical school in 5½ years (1½ years more in college and 4 years in medical school) and will try to work when possible. In this regard, she merely seeks for herself the same opportunity which she helped give to the defendant [husband]. Accordingly, I am directing that the defendant shall pay a total sum of $200 weekly for alimony and child support. . . ." The trial court judge's decision was appealed. On appeal the alimony award of $100 was reduced to $75 a week.
  54. See Bruch, C.S., and Wikler, N.J. The economic consequences. Juvenile and Family Court Journal (1985) 36:5.
  55. See Williams, R.B. Child support and the costs of raising children: Using formulas to set adequate awards. Juvenile and Family Court Journal (1985) 36:41.
  56. See Thompson, R.D., and Paikin, S.F. Formulas and guidelines for support. Juvenile and Family Court Journal (1985) 36:33.
  57. Horowitz, R.M. The child support enforcement amendments of 1984. Juvenile and Family Court Journal (1985) 36:1.
  58. See Katz, S.N. Introduction. Juvenile and Family Court Journal (1985) 36:xi–xiv.
  59. See note no. 44, Ellman, Kurtz, and Bartlett, pp. 402-3. The authors report that, "According to the most recent Census Bureau data, only 61% of the 8.8 million mothers living with children under 21 whose fathers were not living in the household report having either a decree or an agreement for child support. . . . While 81.1% of divorced mothers report having an award or agreement, only 43% of separated mothers and 18.4% of never-married mothers report having an order or agreement."
  60. See note no. 44, Ellman, Kurtz, and Bartlett, pp. 403–4.
  61. See note no. 43, Golden, p. 201. Golden writes: "Frequently, the marital home (if classified as marital property) will be awarded to the custodial parent. This is so even though the other spouse may have strong family or sentimental ties to the residence. Many states specifically list the desirability of awarding the marital home to the custodial parent as a factor for the court to consider in making the final equitable distribution."
  62. Ginsburg, E.M., and Robboy, A.W. Support and education after age eighteen. The Massachusetts Family Law Journal (1993) 10:101–5.
  63. Walker, T.B. Family law in the fifty states: An overview. Family Law Quarterly (1992) 25:417,439–40.
  64. For an excellent discussion of mediation and the issues raised in my brief summary of the process see Folberg, H.J. Divorce mediation-The emerging American model in the resolution of family conflict. J.M. Eekelaar and S.N. Katz, eds. Toronto: Butterworths, 1984, pp. 193-232; see also Folberg, J., and Milne, A. Divorce mediation: Theory and practice. New York: Guilford Press, 1988.
  65. See note no. 64, Folberg and Milne, pp. 431–49.
  66. In Smith v. Lewis, 530 P.2d 589, 11 Cal. Rptr. 621 (1975), the Supreme Court of California held that an attorney who negligently failed in a divorce action to assert his client's community interest in her husband's retirement benefits was guilty of malpractice. The court stated, "[E]ven with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." Increasingly there are unsettled areas of the law, especially with regard to what is and what is not marital property.
  67. See Folberg, J., and Taylor, A. Mediation. San Francisco: Jossey-Bass, 1984.
  68. This is manifested from time to time when legislatures either refuse or are reluctant to reduce the periods between the time a divorce decree is issued and when it is final. For example, in Massachusetts, 90 days must elapse between the time a decree is granted and when it becomes final. Attempts to reduce the period have been unsuccessful. The reason for the time period is supposedly to give the spouses time to reconcile. It is generally believed (although there are no definitive studies to prove the point) that such a goal is unrealistic.
  69. See Rheinstein, M. Marriage stability, divorce and the law. Chicago: University of Chicago Press, 1972, pp. 5–6. For a discussion of this issue as well as the effect of divorce on families in Great Britain, see Eekelaar, J. Regulating divorce. Oxford: Clarendon Press, 1991.
  70. The author has derived this information from his involvement in the past few years in judicial education both in the Commonwealth of Massachusetts and with the Council of Juvenile and Family Court Judges, a national organization that holds educational programs for judges from many states.
  71. Katz, S.N., and Kuhn, J. Recommendations for a model family court. A report from the National Family Court Symposium. Reno, NV, 1991; Edwards, L.P. The juvenile court and the role of the juvenile court judge. Juvenile and Family Court Journal (1992) 43:145; Page, R.W. Family courts: An effective judicial approach to resolution of family disputes. Juvenile and Family Court Journal (1993) 44:1–59.