Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
Child Custody And Divorce: Free Legal Advice
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There has been a lot of discussion, lately, among the so-called "family values" crowd, that perhaps getting a divorce is too easy, that the process is too available to the population, and that, as a consequence, too many children are growing up in one-parent families, when they could have grown up in two-parent families.
I think that the proposal to go back to "fault" based divorce is not well thought out, and would result, should the no-fault statutes ever get repealed, in the return of the old nightmares, which the no-fault laws were designed to cure.
Let's compare the old system with the new system. The old law governing divorce in Michigan (before 1971 PA 75: the no-fault law) read as follows:
"A divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties, or one of them, reside, or by the court of chancery, on the application by petition or bill of the aggrieved party, in [any] of the following cases:
"1. Whenever [adultery] has been committed by any husband or wife;
"2. When one of the parties was physically incompetent at the time of the marriage;
"3. When one of the parties has been sentenced to imprisonment in any prison, jail or house of correction, for three years or more; and no pardon granted to the party so sentenced, after a divorce for that cause, shall restore such party to his or her conjugal rights;
"4. When either party shall desert the other for the term of two years;
"5. When the husband or wife shall have become an habitual drunkard;
"6. And the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony, any party who is a resident of this State, and whose husband or wife shall have obtained a divorce in any other State."
And the procedure for getting a divorce, if not by consent, was a real nightmare. In the first place, you couldn't really consent. That would have been 'collusion' against the interests of justice, or at least against what was then public policy, so that was out.
To get a divorce in those days, you had to gather your evidence (private detectives were really big in those days), and file a lawsuit, listing in your complaint the GROUNDS that you had for the divorce. In other words, you had to list, in a public record, that you were coming into court prepared to prove to a judge that your spouse deserted you for more than two years, or was a habitual drunkard, or was guilty of adultery, etc. The other party then filed an answer denying the allegation(s). The judge would hold a trial on whether the allegations were true. If the allegations were not sufficiently proved, then Plaintiff loses, and there is no divorce. Seriously, no divorce.
This caused untold amounts of misery, and instigated all sorts of shenanigans, just to qualify, to make your case, to establish "grounds". Maybe the man would move to New York, fully intending to stay forever, and, after a few (or even twenty) years, hire himself a good-looking milkman, and say "go take your truck over to my spouse's residence, and make your pitch. Let me know if anything romantic happens."
Some states (revolutionary bastions of liberalism, to be sure) even made it a little (but not much) easier, and added "irreconcilable differences" to their statutes, so one party could go in and prove at least that (..."we shoot guns at each other, every time we see the other party, we really, truly, can't stand each other"), and get a divorce. But all states didn't recognise that ground, and if a divorce got itself granted on that ground, that divorce might not be recognised in Michigan, which was a state that didn't have that ground in its statute.
You would also see (and still can today, in the really old movies) that scene where the protagonist and the heroine, who are truly in love, can't get married, because he's got a wife back in Michigan, that he hasn't seen in twenty years, but "she won't give him a divorce". That meant that she wouldn't do the decent thing, and recognize that the marriage was over, and sue him for divorce, and win by default. He, of course, couldn't sue her, alleging one or more of those grounds, because she had living male relatives, who would come right over with a gun if you said any such thing in a public record about their beloved (and presumed moral-and-chaste) relative. He might induce her to move to one of the states that recognized "irreconcilable differences", and then again he might not. And what if he did? If he sues there, and she denies, and takes the stand, and says "we have no differences", does the divorce get granted? Likely not.
The whole thing was a big, big, mess. One lady (and I think it was in the Billy Rose [the famous bandleader] divorce) even kept herself shut up in her penthouse, so that she couldn't be served. Well, if she's not served, there's no case yet, right? Right. This went on for months. Then one enterprising young detective made a PAPER AIRPLANE out of the summons, and flew it across an airshaft, and saw the lady pick up the airplane from her table. She's served, but she filed an appeal on the grounds of faulty service, and THAT went all the way up the appeals ladder. Still good service. It was in her hand. But the whole process by this time, was correctly recognized as a caricature, a cartoon, of itself.
The various legislatures asked, at different times, whether we should compel a miserable person to remain in a marriage, and whether we can't just divide up the property, and let two persons get on with their lives. The answer was, in most if not all states (and I don't know of any "fault" states anymore; if you know of one, email me), the no-fault divorce laws.
In Michigan, the modern (no-fault) statute reads in part:
(1) A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language.
(2: omitted here, for brevity)
(3) The court shall enter a judgment dissolving the bonds of matrimony if evidence is presented in open court that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. [MCL 552.6; MSA 25.86.]
Now doesn't that make a lot more sense? Not only do we not care about the grounds, you may not recite any grounds, even if you think you have them. Just say it's over. If one party to the marriage will say, under oath, that "there has been a breakdown in this marriage relationship to the extent that the objects of matrimony have been destroyed, and there remains no reasonable likelihood that this marriage can be preserved", then the judge will (must) grant a divorce. Let's get the property divided, and let's allow two people to get on with their lives.
There can be problems enough with dividing property, with deciding whether or not there ought to be alimony, with deciding where children ought to live, and all the rest, without having to go back to the circus- and Enquirer- like atmosphere regarding whether or not someone DESERVES a divorce, and forcing hateful and embarrassing allegations to be proved and disproved, in a court of law, on the public record, by highly paid (by the hour) legal gunslingers. Think about it.
There are waiting periods, after filing, to protect children and adults from hasty decisions. Perhaps the waiting period might be made longer where children are involved (but Michigan's is at six months). But going back to the days of "fault" divorces is definitely not an answer, not a solution, to any problem that I know of.
Good luck with it.