The Uniform Marriage and Divorce Act (UMDA) and

Florida’s No-Fault Divorce Law

The American Bar Association’s (ABA) ‘drafting arm’ was established in 1891 and was called the National Conference of Commissioners on Uniform State Laws (NCCUSL).  The NCCUSL was made up of lawyers, judges, and law professors (members had to be lawyers) appointed by their respective state governors to attend annual meetings where they would draft new ‘uniform’ laws for state legislators to enact.

In 1965, the NCCUSL announced they were embarking on a new project to draft a uniform law regarding marriage and divorce.

In 1966, William J. Pierce, Chairman of the NCCUSL Executive Committee, applied to the Ford Foundation for a grant in order to begin work on the project, and in January 1967, the Ford Foundation awarded them $60,000. The grant application describes the goals of the project.[1]

In February 1967, the U.S. Dept. of Health, Education and Welfare awarded the NCCUSL a grant for $25,000; an additional grant was awarded later.  Robert J. Levy was hired to serve as the ‘reporter’ for the project, and in April 1968, Herma Hill Kay was hired as ‘co-reporter’.

The reporters were key in shaping the project’s outcome. They provided the Commissioners with research and proposed drafts. Both reporters worked closely with the Commission leadership, including Maurice Merrill, Allison Dunham, and William Pierce. 

Maurice Merrill, who served as the Chair of the project the first year, showed that he wanted to eliminate judicial discretion when he wrote this comment about the law, “… expressly forbids the court to refuse to dissolve a marriage if one or both parties desire that it shall end following the 90 day waiting period.” [2]

Merrill wanted to completely eliminate grounds for divorce and said this in a letter, "The important thing is to do away with the necessity of stating a ‘cause of action’..." [3]

In a letter, Herma Kay pressured Robert Levy that judicial discretion should be completely eliminated by making a ‘judgment’ of divorce automatic – turning the ‘divorce decree’ into a ‘foregone conclusion’ from the outset – saying in a letter, "Why should [the court] be allowed to deny the divorce?" [4]

Brigitte Bodenheimer, who reviewed the first proposed draft, expressed strong criticism – that it went too far – and wrote this comment to Robert Levy: “The appropriate form of divorce under these conditions would be divorce by registration in an administrative office.” [5]

California Supreme Court Justice Louis H. Burke wrote a letter to the Commissioners, warning them about what they were proposing, “...the proceeding has no business in a court of law and should be relegated to a ministerial function in the marriage license bureau.” [6]

On August 1, 1970, Commissioner Fred T. Hanson from Nebraska expressed numerous objections to the draft during the annual meeting, saying that the ‘unclean hands doctrine’ would be overturned, that ‘irretrievable breakdown’ had no definition, that divorce would be based on a foregone ‘conclusion’ rather than ‘factual evidence’, and that the proceeding would really be ‘administrative’, not judicial.[7]

During the 1970 meeting, the Commissioners laughed about the fact that their new law would be ‘Russian style’ if there wasn’t any hearing.[8]

The Reporters, as well as the Commissioners, knew that such a radical law would not be acceptable to state legislators nor to the public, and discussed how they would have to “camouflage” the process by requiring a ‘hearing’ with a judge presiding in order to make the process appear ‘judicial.’ [9]

The NCCUSL approved their UMDA draft at their 1970 meeting but when it came time for the ABA’s House of Delegates to give its approval, the ABA’s Family Law Section recommended against it. The draft was not approved that year. Negotiations then began between the Commissioners and the Family Law Section and some minor changes were made. The Uniform Marriage and Divorce Act was finally approved by the ABA House of Delegates in 1974, over the objections of the leadership of the Family Law Section.[10]

In February 16, 1971, Florida legislators introduced their new divorce bill: “It was the consensus of the [Florida] Judiciary to use HB 17-C and the Uniform Marriage and Divorce Act as vehicles for staff to draft a Committee Bill.”[11]

In a November 1971, a Florida Bar Journal article has this quote about the new law: “Hurried drafting pen draws stick figure.” The author claims that Florida legislators hurried their no-fault bill into law without really examining it. She also states that the Florida law incorporated “identical language” for Irretrievable Breakdown as the Uniform Marriage and Divorce Act.[12]

In the 1973 Florida Supreme Court case, Ryan v. Ryan, Florida Attorney General Robert L. Shevin states the following in his Intervenor Brief: “Florida’s no-fault divorce law is based on the Uniform Marriage and Divorce Act which was drafted by the National Conference of Commissioners on Uniform State Laws, August 1—7, 1970.”[13]

----------------------------------------------------------------------------------------------

Professional Affiliations

Louis H. Burke – California State Supreme Court Justice, former Uniform Law Commissioner who had resigned after being appointed to the California Supreme Court.

Allison Dunham – professor at the University of Chicago Law School and serving as Executive Director of the Uniform Law Commission.

Floyd R. Gibson – circuit court judge from Missouri and a NCCUSL Commissioner

Brigitte Bodenheimer – professor at the University of California, Davis, School of Law who served as Reporter on the Uniform Child Custody Act drafting committee.

Fred T. Hanson – circuit court judge in Nebraska and NCCUSL Commissioner

Herma Hill Kay – professor at the University of California, Berkeley, School of Law.

Robert J. Levy – professor at the University of Minnesota Law School.

Maurice H. Merrill – professor at the University of Oklahoma College of Law who served as Chair of the Uniform Marriage and Divorce Act Project.

William J. Pierce – professor at the University of Michigan Law School who served as the Chairman of the Executive Committee of the Uniform Law Commission

---

[1] 1966 Ford Foundation grant application submitted by William J. Pierce, Chairman of the NCCUSL Executive Committee which gives the scope of the intended project www.uniformdivorce.com/FordGrantFull.pdf

[2] October 21, 1968 “Tentative Draft #1” of the “Dissolution of Marriage” section of the UMDA prepared by Herma Kay www.uniformdivorce.com/unilateral.pdf

[3] November 1, 1968 correspondence from Maurice Merrill to Herma Kay www.uniformdivorce.com/cause.pdf

[4] November 18, 1968 correspondence from Herma Kay to Robert Levy www.uniformdivorce.com/discretion.pdf

[5] June 2, 1969 correspondence from Brigitte Bodenheimer to Robert Levy about the UMDA draft (see pg. 3) www.uniformdivorce.com/Bodenheimer.pdf

[6] September 26, 1969 correspondence from Louis H. Burke to the NCCUSL Commissioners www.uniformdivorce.com/Burke.pdf

[7] August 1, 1970 NCCUSL Transcripts, statement by Nebraska NCCUSL Commissioner Fred T. Hanson www.uniformdivorce.com/Hanson-foregone.pdf

[8] August 3, 1970 NCCUSL Transcript, statement by Virginia Commissioner John B. Boatwright www.uniformdivorce.com/Russia.pdf

[9] August 3, 1970 NCCUSL Transcripts, statement by Missouri NCCUSL Commissioner Floyd R. Gibson www.uniformdivorce.com/camouflage.pdf

[10] February 3, 1972 memo outlining the UMDA Project timeline, prepared by Maurice Merrill www.uniformdivorce.com/timeline.pdf

[11] June, 1971 legislative record from the Florida State Archives, giving the timeline of activity for the Committee Bill www.uniformdivorce.com/FL-History-HB17C.pdf

[12] Vol. 45, Florida Bar Journal, “Faults in Florida No-Fault Divorce,” by Virginia Anne Church, p. 569 (November, 1971) www.uniformdivorce.com/Church.pdf

[13] Intervenor Brief filed on July 21, 1972 by Florida Attorney General Robert L. Shevin in the Florida Supreme Court Case, Ryan v. Ryan www.uniformdivorce.com/Ryan-Intervenor.pdf