BILL ANALYSIS
AB 1236
Page 1
Date of Hearing: April 26, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1236 (DeVore) - As Amended: April 11, 2005
SUBJECT : MARRIAGE CHOICE: "FAULT-BASED" DIVORCE OPTION
KEY ISSUES :
1)SHOULD A NEW "FAULT-BASED" DIVORCE OPTION BE CREATED TO ALLOW
MARRIED COUPLES TO ENTER INTO A NEW FORM OF MARRIAGE WHICH
WILL MAKE IT MORE DIFFICULT TO GET DIVORCED WITH THE GOAL OF
IMPROVING CHILDREN'S LIVES?
2)SHOULD OUR FAMILY LAW ONCE AGAIN PERMIT A JUDGE TO PUNISH A
SPOUSE FELT TO BE "AT FAULT" THROUGH AN UNEQUAL DIVISION OF
THE COUPLE'S JOINT ASSETS?
3)IS IT CLEAR THAT ALLOWING COUPLES TO RETURN TO A "FAULT-BASED"
SYSTEM, WHICH WILL KEEP SOME HIGHLY-CONFLICTED COUPLES
TOGETHER, WILL ALWAYS BE IN THE BEST INTERESTS OF CHILDREN?
4)MIGHT A PARTIAL RETURN to "fault-based" divorce INADVERTENTLY
RISK increasED DOMESTIC VIOLENCE BY MAKING IT HARDER FOR
ABUSED SPOUSES TO LEAVE THE MARRIAGE? MIGHT A BETTER FOCUS
FOR THIS BILL BE INCREASING ACCESS TO COUNSELING TO HELP
SPOUSES PROBLEM-SOLVE BEFORE THEY FEEL COMPELLED TO DIVORCE?
SYNOPSIS
This bill seeks to allow new and existing couples to enter into
a marriage contract that makes it more difficult to get divorced
by returning these couples to the days of "fault-based" divorce,
and again allowing judges to punish spouses they believe are
most at fault for the divorce through the unequal division of
joint assets. In support of the bill, the author states that
"When people stand at the altar or before a Justice of the Peace
and say, "I do," most don't bargain for the fact that their
spouse will one day drop a bomb-shell on them out of nowhere
that they are seeking divorce. And yet 80% of marriages end
unilaterally. This measure would allow spouses to obtain for
themselves 'insurance' against the possibility of such an
occurrence...." In strong opposition, women's and children's
advocacy groups state, among other concerns, that "the option of
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fault-based divorce would be particularly harmful to women and
children who are victims of domestic violence? The conflict
faced by most divorcing families would only be exacerbated by a
fault-based divorce that requires proof of wrongdoing, causing
more harm to children and increasing the risk for women who are
attempting to escape from a violent situation." The bill raises
a host of important issues, including whether it is wise to at
least partially return to the days when judges are permitted to
punish a spouse felt to be "at fault" through an unequal
division of a couple's joint assets, and whether it is clear
that allowing couples to return to a "fault-based" system, which
will keep some highly-conflicted couples together, will indeed
be in the best interests of children.
SUMMARY : Seeks to allow new and existing couples to enter into
a marriage contract that makes it more difficult to get divorced
by returning these couples to the days of "fault-based" divorce,
and again allowing judges to punish spouses they believe are
most at fault for the divorce through the unequal division of
joint assets. Specifically, this bill , among other things:
1)Makes a plethora of legislative findings about the negative
impacts of divorce, including that children of divorce
generally fare more poorly in school; divorced men smoke more,
drink more, and have more unhealthy diets than their married
counterparts; "various cultural neuroses that are directly
attributable to divorce and its byproducts are a large part of
why the entitlements in our budget are growing at such a rapid
rate;" by giving couples time and incentive to stay married,
we will bring down the rate of divorce and the costs
associated with it; and "it is incumbent upon the state to
find some way of encouraging marriages to stay together;" and
no fault divorce has caused many negative impacts on our
society. (Proposed uncodified section 1, p. 2, lines 1-25,
and p. 3, lines 1-38.)
2)Reinserts as part of the proposed "fault-based" divorce
framework the power of individual judges to punish spouses
they believe are most at fault for the divorce through the
unequal division of joint assets. (Proposed section 1636 (d),
p. 12, lines 6-9.)
3)Permits parties entering into these "fault-based" contracts to
provide for unspecified and uncapped damages for any violation
of the marital contract, including, for example, the
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possibility of a $1 million or more damage award against the
spouse found to have violated specified terms of the contract.
(Proposed section 1633 (f), p. 6, lines 39-40.)
4)Bars the availability of "no fault" divorce to couples signing
up for the new "fault-based" divorce system, except generally
in the following two limited circumstances: neither party
vetoes the other party's divorce request; or at least one and
a half years of specified marital counseling has occurred.
Thus as long as just one party does not want a divorce, the
other party appears to be presumptively blocked from getting a
divorce for at least 18 months unless one of several limited
grounds is proven to the court's satisfaction, including but
not limited to adultery; habitual addiction to alcohol or
drugs; and physical abuse, extreme mental cruelty, or sexual
abuse of a spouse or child. (Proposed section 1633(e), page
6, lines 20-37.)
5)Establishes new procedures for couples wishing to enter into
"fault-based" marriage. These procedures require that such
couples: (a) receive specified premarital education or
marriage education by any of the bill's approved providers;
and (b) complete a "choice form" indicating their choice that
a "no-fault" dissolution of marriage will not be available and
filing that form with the county clerk after receiving
marriage education together from any of the specified
providers. (Proposed section 1633(a-b), page 4, lines 26-38.)
6)Provides that the marital counseling required by the bill may
be provided by a host of religious and government sponsored
programs, as well as a group called "Smart Marriages / The
Marriages/The Coalition for Marriage, Family and Couples
Education," which the bill states maintains a Web site
available at http://www.smartmarriages.com , and whose founder
the Website reports is the well-known writer of the Dr.
Romance column in http://www.women.com . (Proposed section
1635, page 9, lines 34-39, and page 10, lines 1-27.)
7)Requires county clerks to develop and make available to the
public "choice" forms, as defined, and requires a county clerk
to file and keep completed "choice" forms within the county's
permanent records and to establish a directory of marriage
education or skills training providers within its office, as
specified. (Proposed section 1633(c), page 4, lines 39-40,
page 5, lines 1-3.)
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EXISTING LAW :
1)Establishes the Family Law Act which eliminates "fault"
actions for divorce, annulment and maintenance, and
substitutes "no-fault" proceedings for dissolution, legal
separation, or nullity of marriage. (Family Code Sections 300
et seq.)
2)Provides two "no fault" grounds for divorce as follows: a)
irreconcilable differences, which have caused the irremediable
breakdown of the marriage; b) incurable insanity. (Family
Code Section 2310.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : This bill raises one of the most important issues
surrounding our modern social fabric: why do we have so many
families experiencing the trauma of divorce, and what are the
best remedies for improving family life today? Since its
enactment over 35 years ago, California's "no-fault" divorce
reform has been the principal target of blame for all areas of
family dysfunction, exemplified by some of the findings
contained in this bill and by several earlier bills that this
Committee and Legislature have rejected since California
switched to a "no-fault" divorce system.
Interestingly, it was a famous Republican governor and future
President who ushered in California's "no-fault" divorce reform.
Governor Ronald Reagan signed the Family Law Act of 1969 into
law, making California the first "no-fault" divorce state in the
nation. Or, looked at by some in another way, "On September 5,
1969, with a stroke of his pen, California Governor Ronald
Reagan wiped out the moral basis for marriage in America."
Elizabeth Schoenfeld, Drumbeats for Divorce Reform, 77 Policy
Review: The Journal of American Citizenship (May-June 1996).
Since California's historic divorce reform, every state in the
union has enacted some form of "no-fault" divorce.
Brief History Of Grounds For Divorce In Both The Fault And
No-Fault Eras : Many American states enacted divorce legislation
soon after Independence, in the 1780s and 1790s. Divorce laws
were generally more liberal in the West than in the rest of the
country. California's first divorce law, in 1851, contained the
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following grounds for divorce: impotence, adultery, extreme
cruelty, desertion or neglect, habitual intemperance, fraud, and
conviction for a felony. California's enactment of the first
"no-fault" divorce law in 1969 "?launched a legal revolution,"
based on a growing national consensus that fault-based divorce
laws too often led to expensive and harmful court fights which
left divorcing families in financial and psychological tatters.
(See Lenore Weitzman, The Divorce Revolution, The Free Press,
1985, at 442.)
Movement Viewing "No-Fault" Divorce As Cause of Many Societal
Ills : Nationally, there has been some movement in recent years
to return to "fault-based" divorce, or to at least impose
additional obstacles to getting a divorce or to getting married.
This movement was spurred by what has been seen as increasingly
high divorce rates, the high rate of poverty in single-parent
homes, and perceptions that the real "victims" of no-fault have
been the children of divorce. The movement to restore fault
divorce, or move in that direction though a "fault-based"
divorce option, is guided by the hope that the imposition of
obstacles to getting divorced will remove the "easy out"
reformers say "no-fault" has provided. In the absence of
"no-fault," reformers contend, couples will be forced to work
through their problems and the end result will be increased
numbers of families remaining intact, and, most importantly,
healthier, more stable children. Others disagree, however,
contending that the return to "fault-based" divorce will bring
with it greater numbers of families who are physically separated
without being legally divorced, fewer marriages, and an
increased number of women and children living in violence and
living with high levels of conflict. But others point to
studies which show that rather than divorce law, poverty is the
factor that is most to blame for these problems. And though
single parent families clearly tend to be poorer than two-parent
families, there is plenty of poverty observed in both types of
family arrangements.
What Are The Most Common Causes Of Divorce ? Unfortunately,
especially for the sake of our children, no statistics on this
key social issue have yet been collected, either in California
or the country. Even the grounds listed on the vital statistics
forms that are filed with each divorce case in most states
rarely list the actual cause of the divorce. Thus policy-makers
are forced to conjecture, and rely on their own life experience,
when grappling with the charges and countercharges made about
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the prevalence of divorce in our society. One point seems to
bring consensus: not all marriages fail for the same reason.
Nor is there usually one reason for the breakdown of a
particular marriage. One respected organization, the American
Academy of Matrimonial Lawyers, a non-profit association of
attorneys whose approximately 1500 experts in family law "have
learned a lot about marriage and the pitfalls of divorce,"
states that though there are no single causes of divorce, "we
hear some reasons more often than others. They are: poor
communication; financial problems; a lack of commitment to the
marriage; a dramatic change in priorities; infidelity." "Why
Marriages Fail," a web-based booklet by the American Academy of
Matrimonial Lawyers (accessed on the Web on April 24, 2005, at
http://www.aaml.org/Marriage_Last/MarriageLastText.htm .
Why the Author Believes This Measure Will Improve Children's
Lives : In support of this measure, the author writes:
There are some people who would choose - if the law allowed
them - to reject recourse to a no-fault divorce. This
measure should give them that choice? When people stand at
the altar or before a Justice of the Peace and say, "I do,"
most don't bargain for the fact that their spouse will one
day drop a bomb-shell on them out of nowhere that they are
seeking divorce. And yet 80% of marriages end
unilaterally. This measure would allow spouses to obtain
for themselves 'insurance' against the possibility of such
an occurrence...
Other Arguments in Support: In addition to the author, several
other groups have written in support. The California
Association of Marriage & Family Therapists, who opponents note
would see a new state mandate for thousands of couples to use
their services, writes that "Too many Californians enter
marriage without an understanding of how to address conflicts
that arise within the marriage; we believe that education and
counseling, whether occurring before or during marriage, can
help Californians improve the quality of their marriages; we
also believe that such education and counseling would also help
strengthen families." The California Family Alliance writes
"This bill is a good idea and recognizes the value of marriage
to society. It will allow couples to set standards for their
marriage prior to a time of crisis when emotions may run high
and decisions are made to divorce that, in the long run, are not
in the best interests of either party."
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Women's and Children Advocacy Groups Strongly Oppose This
Proposed "Reopening" of the Fault-Based Divorce Door They Fought
Hard to Close 35 Years Ago : Although the author contends that
this bill will improve the lives of many women and children,
those traditional groups fighting for the rights of women and
children are not supporters of this potential partial return to
the age of "fault-based" divorce. For example, California NOW,
representing women's rights in the state, writes:
Fault-based divorce would result in an increased
number of women and children living with violence and
with high levels of conflict. The problems of
children cited as associated with divorce are not
necessarily the result of the divorce but of the
parental conflict that accompanied it. Children who
live in high-conflict two-parent homes are also at
higher risk for a variety of emotional or behavioral
problems. Studies have shown that children in
high-conflict, intact families have the same
psychological and social difficulties as associated
with children of divorce? The option of fault-based
divorce would be particularly harmful to women and
children who are victims of domestic violence? The
conflict faced by most divorcing families would only
be exacerbated by a fault-based divorce that requires
proof of wrongdoing, causing more harm to children and
increasing the risk for women who are attempting to
escape from a violent situation.
In addition, the Coalition for Family Equity, another statewide
women's rights organization, writes in strong opposition to the
bill, emphasizing concerns that the bill's narrow discussion
about the need to prove up domestic violence under the new
"fault-based" scheme:
[The proposal's] underlying premise - that marital
couples should foreclose future choices about their
families at the outset of marriage - is abhorrent, and
the dangers for women in particular are unacceptable?
Divorce may be stressful for children, but so is
living in a conflict-ridden household. The prospect
of forcing children to continue living in such an
environment for two additional years [under the bill]
is cruel and unnecessary...
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The California Association of Clerks and Elections Officials'
Opposition : In addition to opposition from women's and
children's rights groups, the bill is also opposed by the
California Association of Clerks and Elections Officials. The
County Clerks state they are opposed to the bill for several
reasons, including that the requirement that they develop, file
and authenticate signatures of couples and maintain "choice
forms" is unworkable; and the requirement that they have a
directory that includes marriage education or skills training
providers is not possible since "Clerks are not trained or
educated in determining who should be included in this binder."
Some Additional Questions Raised by the Proposal :
1) Should, as this measure appears to allow, couples be
able to specify that the spouse who "causes" the divorce
shall pay a potentially huge damage award?
2) Might this change inadvertently lead to more children
living in separated but "non-divorced" families?
3) Should our family laws ever attempt to force couples to
attend over a year of marital counseling before they can
divorce, even if such forced interaction could be
dangerous?
4) Are couples in the glow of new love in the best position
to determine, without ay legal counsel and potentially
years before the need arises, whether they should agree to
permanently waive their "no fault" divorce rights?
5) In addition to eliminating current community property
law rules regarding the equal division of community
property assets, does this bill also permit judges to award
separate property to the other spouse as a penalty for
"fault"?
Conclusion: What would this proposed move back in the direction
of "fault-based" divorce accomplish? Though it is clear the
verdict is unknown, some lawyers warn that returning to a
fault-based system would bring with it another layer of
litigation to many divorce proceedings, resulting in more
emotional frustrations, higher legal bills, and even more
impacted court calendars. Critics of the return to fault-based
divorce caution that:
"Those who advocate returning moral judgments to the
divorce arena have a short memory. By the late 1960s,
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even some church leaders had recognized that the fault
system was out of step with modern family life. . . .
[T]he advent of no-fault did not change access to
divorce so much as it legitimated practices that
already were occurring. Should some of the mutual
consent or other proposals become law, couples would
once again be forced to stage elaborate theatrics to
achieve a quick divorce. Alternatively, couples could
simply drive over state lines to a jurisdiction that
provides [unrestricted] 'no-fault' divorces."
Moreover, if the goal of bringing fault back to divorce is
improving the health and welfare of California's children,
others argue that a full or partial return to "fault-based"
divorce may not be the answer and may in fact lead to unintended
consequences:
"If the legal system were changed to make divorce more
difficult, it would most likely increase the
proportion of children living in separated but
non-divorced families. It would also increase the
proportion of people who spend their childhood in
high-conflict two-parent families. . . . Given that
the legal system cannot stop married couples from
living apart or fighting, changing the legal system to
decrease the frequency of divorce is unlikely to
improve the well-being of children." Paul R. Amato,
Life-Span Adjustment of Children to Their Parents'
Divorce, in The Future of Children: Children and
Divorce, Volume 4, No. 1, 143, 152-153 (Spring 1994).
Opponents of measures like this also note that as a practical
matter, commentators note that marriage relationships can end
whether or not divorce is available, and remind supporters of
measures like this that divorce often allows the possibility of
potentially healthier remarriages.
On the other hand, the Capitol Resource Institute and other
"no-fault" divorce reformers have argued that "no-fault divorce
reduces the negotiating power of spouses who do not want to end
their marriages, especially women." Capitol Resource Institute,
"Breaking Up Is Easy to Do" (1996), at 7. By removing fault
from the equation used to determine the division of property and
the amount of any support award, the argument suggests,
"no-fault" enables the spouse who wants the divorce to leave the
marriage without suffering any real consequences. Thus, the
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only thing that may be indisputable in the growing debate about
"no-fault" divorce in this country is that there are still many
questions that need to be answered, and there is very little
hard data to support assertions that bringing "fault" back to
divorce court will help families or, most importantly, children.
REGISTERED SUPPORT / OPPOSITION :
Support
California Family Alliance
Capitol Resource Institute
California Association of Marriage & Family Therapists
Opposition
California NOW
Coalition for Family Equity
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334