"National Conference of Commissioners on Uniform State Laws"

NCCUSL

Uniform Marriage and Divorce Act

Hollywood, Florida

Thursday Afternoon, August 5, 1965

Mr. Leonard G. Brown, of New Jersey, presiding;

Mr. Bernard Hellring, of New Jersey, presenting the report.

CHAIRMAN BROWN: Members of the Conference: We had a very interesting meeting on Tuesday night with all of the sections of family law in the Conference. They met with the members of the Uniform Marriage and Divorce Committee, and as a result we filed a report which was unanimously accepted by that group. We realize that we are usurping the time of the Conference today, but we felt it sufficiently important that the members be acquainted with the Committee’s new concept and approach to this very serious problem. With that thought in mind, I am going to ask Commissioner Hellring, of New Jersey, if he will read the report.

MR. HELLRING: I would like to say that Commissioner Brockelbank [Moscow, Id.], who has made a great contribution to this matter, as well as the other members of the Committee on Uniform Divorce and Marriage Laws, ought to be up here with us; namely, Commissioner Sullivan, of [Boise] Idaho, Commissioner Witherspoon [Meridian, Miss.], and Commissioner Munter [Wash., D.C.], all of whom participated in the discussions which gave rise to and resulted in the adoption of {2} this report Tuesday.

* * * * * * * * *

The report of the special Committee on Uniform Divorce and Marriage Laws

of the Conference of Commissioners on Uniform Laws:

* * * * * * * * *

Threescore and seven years ago this Conference of Commissioners on Uniform Laws was established, largely for the initial purpose of making more uniform the laws of the various States on the subject of Divorce and Marriage. Since that time, the Conference has distinguished itself in many areas. No significant contribution has been made on the subject of Divorce and Marriage.

We venture to express the view that the time is appropriate in the development of our American society for such a contribution to be successful at this time. It is singularly appropriate now that the whole subject be evaluated anew, due to the great sociological changes which are being daily effectuated in ordinary living. This is particularly true in home, in marriage contracts, in the raising and custody of children, in religious circles and in the rapidly developing fields of social work. The Ecumenical spirit pervades the world. The sole emphasis in the past upon the religious and the moral in Divorce and Marriage, is now affected by the social and economic problems of contemporary life. {3}

All would agree that greater uniformity in the laws of Divorce and Marriage among our States is desirable. When the wife of a wealthy governor of our greatest State goes 2,500 miles to a foreign jurisdiction for the purpose of consummating a Divorce upon which the parties have previously agreed, it is obviously time for something to be done. The artificial limitations on divorce in our most enlightened jurisdictions fosters fictions of jurisdiction, perjury and disrespect for the law generally.

Unrealistic outlets and causes for divorce in other jurisdictions only foster the same fictions, perjury and disrespect for the law and are equally reprehensible.

As debilitating as the existing hodgepodge of laws on Divorce and Marriage may be upon the lives of the participants, the destructive effect upon children is incalculable. If the time for improvement and uniformity in this field were not at hand for the sake of the marriage partners, it is surely at hand for the sake of the children.

As a part of this report, we have annexed a brilliant series of articles published during the last week in a leading newspaper in New Jersey which is the result of an incisive study and examination of the problems to which we refer. New Jersey has been in the forefront of the modern {4} development of Judicial Administration. In the same spirit and under the leadership of its great Governor, Richard J. Hughes (formerly the Presiding Judge of the Appellate Division of its Superior Court), New Jersey has been making sincere and determined (but so far unavailing) efforts at improvement in the laws on Divorce and Marriage.

Some contend that conditions will have to deteriorate further until Congress somehow preempts the field with a Federal Act. We disagree; and urge that greater Uniformity is the only proper solution, that the time is now, and the place is here in this Conference of Commissioners on the Uniform Laws.

In the early days of our jurisprudence[,] the law on Divorce and Marriage, grounded largely in ecclesiastical law, was more flexible and reflective of fairness and equity than any other field of the law. The situation has now reversed itself.

Forms of Action were long disfavored as restrictive, artificial, cumbersome, often obstructive of Justice and favoring the rich against the poor. Accordingly, Forms of Action were long ago abolished in most common law jurisdictions. Assumpsit and Trover are now merely reminders of an imperfect historical past, the lumbering and inflexible period in the {5} development of our Jurisprudence. Yet the only field of the law in which Forms of Action still abound and still constrict is Divorce and Marriage. Adultery, Desertion, Extreme Cruelty — each a Form of Action; each a mold into which litigants and lawyers must "find a way" to fit or manufacture some facts. We submit that there is no more justification for the presence and use of "Forms of Action" in the administration of the laws of Divorce and Marriage than in any other field of the law — indeed there is less justification.

The absence of facts which fit into a particular statutory form is surely no reason in today’s society for the denial of divorce. Similarly, the existence of facts which happen to fit into one of these pre-cast molds is no longer necessarily a proper basis for granting divorce. And surely, the necessity of contriving a fictional state of fact whether as to "Grounds" or jurisdiction makes no sense at all. So, for example, the act of adultery insures the granting of a divorce in most jurisdictions. Is it always a sensible reason for the dissolution of a marriage, without regard to the destructive effect of that dissolution upon the lives of the children involved? The question becomes even more troublesome when the evidence of adultery is of a contrived or questionable character. {6}

For all the foregoing reasons and others too long to be detailed in this report, we submit that the goal of Uniformity requires a new departure in legislation in this field. It requires an elimination of the "Forms of Action" approach to the administration of the Divorce laws. It requires an analysis of the entire subject of the custody of children as an integral part of drafting any legislation on the subject of Divorce and Marriage.

To this end, we recommend the establishment of a more integrated Special Committee of the Conference Of Commissioners on

Uniform Laws in this field; the recruitment of an able, paid staff with time to devote to necessary research and careful drafting. This staff and the Committee should consult with an Advisory Committee consisting of representatives from the fields of psychiatry, religion, social work and every other phase of our Society which has bearing upon the issues involved. We recommend further that appropriate representations be made to existing Foundations for the financing of this project.

This is a major project and its consummation will bring to this Conference its finest hour and the fruition of its initial purpose.

Respectfully submitted for the Committee. {7}

MR. MERRILL: Thank you.

Gentlemen, in view of the lateness of the hour we are simply putting this information before you in order that you may see the approach and the shape of things to come. Obviously, the recommendations call for action by the Executive Committee. We do not know what that action will be, but it is hoped that there will be some attention paid to this area.

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From the

(pages 184-187)

Report of the Special Committee on Uniform Divorce and Marriage Laws:

One year ago we submitted to the Conference a Report which proposed a fundamental new approach to Uniformity and Reform in the Law of Divorce (For Report, see page 181, 1965 Handbook). We report now on the events of the last year.

During the last five months of 1965 we participated in a number of newspaper and television interviews, oral and written reports to Legislative Committees, members of the American Bar Committee on Family Law and others, and participated in much correspondence and other discussion with interested lawyers and others from all over the country. The committee received several letters relating to the interest of various newspapers, among them the Miami Review and the Bergen Daily Record, to which appropriate replies were made. Commissioner Brown appeared before the Joint Legislative Committee on Matrimonial and Family Laws of the State of New York; and received a letter of appreciation to Commissioner Brown from Senator Wilson, Chairman of that Joint Legislative Committee.

On September 26th, 1965, Commissioner Hellring participated in a half-hour television interview with Commentator John Scott and a newspaper correspondent over a New York Television Channel. The transcript of the interview contains the following:

SCOTT: Has your group (referring to our Committee) been able to come up with any suggestions for study which will result in Uniformity?

HELLRING: Yes. A number of suggestions, the most basic of all being a new approach to uniformity and a new development in the laws of marriage and divorce; an approach which would eliminate once and for all the use of so-called "grounds" for divorce. This new approach would eliminate the necessity of putting a label on a man or on a wife, such as adulterer, deserter, or extremely cruel. These "labels" have, in the view of our Committee, prevented proper development, and blocked Uniformity in the Laws of Marriage and Divorce.

Your Committee has available for examination, a transcript of the entire television interview.

The hearings and other activities of the New York State Joint Legislative Committee, as well as other activities stirred by the report of your committee, produced a great deal of editorial and other newspaper interest and discussion of the subject throughout the country. Illustrative is a series from the New York Herald Tribune running from November 14, 1965 until November 21, 1965 under the general title "Divorce — New York Style," and an article from Town and Country Magazine entitled "Divorce — American Style." While these examples of public interest appear to concentrate on the situation in New York, they are applicable throughout the nation and in all common law jurisdictions.

The other phase of your committee’s activities during the last five months of 1965 was the quest for funds to finance the major study called for by the committee’s 1965 report. We received the complete cooperation and experienced guidance of Allison Dunham, Executive Director of the Conference. Utilizing the material contained in the committee’s 1965 report, Professor Dunham prepared several drafts of a proposed prospectus for presentation to foundations and other sources of funds. Preliminary drafts of the prospectus were submitted to your co-chairmen, under the title "A Comprehensive Marriage and Divorce Law — a Project of the National Conference of Commissioners on Uniform State Laws"; the final prospectus was submitted by Professor Dunham to certain selected foundations. Your committee considers the prospectus to be a clear and learned presentation of the proposed project and its importance.

In January of 1966 (in time for the attention of the Executive Committee of the Conference at its midyear meeting in February) your committee submitted the following:

Copies of the above reports and request for approval of funds are on file in the executive office.

No report on this subject at this time can fail to make reference to the sudden and remarkable developments in the law of divorce in the State of New York during the past year. The hearings held by the Joint Legislative Commission were an exhaustive inquiry by a major jurisdiction into the problems of our society in this field. Moreover, the legislative results — the addition of a number of grounds for divorce — comprise a remarkable amount of reform in a short period of time in New York State. Although the speedy results in New York are evidence of a trend towards liberalization and reform in this field, they have nothing to do with uniformity and give no consideration to any fundamental new approach required to achieve uniformity.

On the other hand, the new departure of the committee’s 1965 report has just received great support and recognition in England. The same new concept was fully and wholeheartedly adopted this week by a Church of England Committee appointed by the Archbishop of Canterbury. The 12-member committee of churchmen, lawyers, and sociologists published a report on July 28th, 1966, urging a dramatic change in Britain’s Divorce Law. The 170-page report, published after two and a half years of study, recommends the abolition of the concept of matrimonial guilt and proposes that the sole basis for divorce should be a judicial finding that there has been a "breakdown" in the marriage. "Grounds," such as adultery, would be taken into consideration only as symptoms, but would no longer stand as self-sufficient reasons for dissolving a marriage; divorce would no longer be "a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and the reverse for the other, but a defeat for both." The report includes the requirement of a judicial finding "that nothing more can be hoped from attempts to reconcile the parties," as a prerequisite for a judgment of divorce. The chairman of the committee, the Bishop of Exeter, Rt. Rev. Robert Mortimer, made the following statement in issuing the report:

The findings and recommendations of this learned report in England are a unique and gratifying reaffirmation of the identical new approach which was proposed by your committee in its report to the Conference one year ago. The time has come for this Conference to show a dramatic recognition of its responsibilities in this field. There is no longer any excuse for procrastination. President McKenzie, in his provocative opening address to this Conference said:

The place to get help is right here — within this Conference — through the medium of this project for a Uniform Divorce Act, which began this Conference 75 years ago. Your committee cannot make proper progress without the vigorous, complete, and unqualified financial and other support of the Conference and its officials.

The activities of the executive director of the Conference and your committee during the past year justify strong expectation that we will receive a grant of funds in the amount requested from one of the foundations with which discussions have been held. While no announcement can be made about it at this time, the executive director has informed your co-chairmen that there is a strong likelihood of the receipt of such a grant within six months.

We recommend immediate action by the allocation of initial funds from the Conference itself in amount adequate to cover the

expenses of committee meetings and the retention of a project research director or reporter, so that the appropriate preliminary study may commence without delay, preparatory to the drafting of an Act. This should be done now.

Respectfully submitted,

Leonard G. Brown

Bernard Hellring

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The 1967 NCCUSL Handbook did not have any report on the UMDA project.

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From the

Section F (2) Marriage and Divorce, Maurice H. Merrill, Chairman. The committee will meet with a liaison committee of the ABA Family Law Section in Chicago on February 16, 1968. The selection of a panel of consultants (about 12) and a panel of advisers (about 30) is tentatively completed. There will be no draft for consideration at the annual meeting, but the committee will undoubtedly desire guidance on major policy questions.

(Page 62)

Professor Merrill reported on the Marriage, Divorce, and Family Law project. He advised that the committee had met with representatives of the Family Law Section of the American Bar Association and the reporter at which time matters of policy were determined. He stated that the committee was in the process of organizing a group of advisors, consultants and representatives of various branches of the legal profession. While there would not be any draft to present at the Philadelphia meeting, work was progressing satisfactorily. The report was accepted.

(Page 82-83)

Mr. Maurice H. Merrill, of Oklahoma, presiding;

Mr. Floyd R. Gibson, of Missouri, presenting the law.

CHAIRMAN MERRILL: The Committee of the Whole will be in order.

The procedure this afternoon will be that Commissioner Floyd Gibson will read the draft of the Act when we get it before you, and I shall be serving as Chairman of the Committee of the Whole. I will also, at least in the beginning, field the questions.

Perhaps it would be well first to introduce the Reporters for this project on the Uniform Divorce and Marriage Law. Most of you, I think, are already acquainted with them in one way or another. You heard President Pierce speak at the opening session particularly of Professor Levy’s work. I would at this time like to present to you Professor Robert Levy, of the University of Minnesota, and Professor Herma Hill Kay, of the University of California at Berkeley, who are the co-Reporters for this project, and ask that they be accorded the privilege of the floor before this Committee. Will you stand, please? [Applause] {2}

May the chair take it, in the absence of need for a motion, that they are accorded the privilege of the floor, that there is no objection? [No one responded.]

I take it that unanimous consent is given.

A word or two, I suspect, is in order to orient you with respect to our position in respect to this matter. This project started out of a feeling by the lawyers who were prominent in the early work of the American Bar Association and who were, of course, the lawyers of that age, who were also the most forward-looking and the most interested in the improvement of the law throughout the United States — out of a feeling on the part of these lawyers that there should be uniformity in respect to most matters that had more than local significance, and yet concerning which it was either, as the Constitution was then interpreted, beyond the power of the Congress to deal, or it was inexpedient that Congress should deal; and the latter reason certainly is still important today.

In considering what the subjects were that gave rise to the feeling of inadequacy and that feeling of a need for some agreement on uniform legislation, there were two topics to which they gave precedence. One was commercial paper, the law of negotiable instruments, which gradually broadened into concern with various other aspects of commercial intercourse {3} throughout the United States, and finally, of course, gave rise to the Uniform Commercial Code Project, covering, if not the waterfront, at least a large part of that area.

The other was the topic of divorce law particularly. I think there was some concern expressed with regard to marriage also, but the whole problem of divorce and the effect of one jurisdiction on another was much in their minds. Indeed, it was something which had been presented to the people of this country almost from the inception of the Union. You can go back to the turn of the 18th century, the forepart of the 19th, and you will find that Vermont was a thorn in the side of its neighboring states. You will find criticisms in the opinions delivered by Massachusetts and Connecticut and New York judges about the way in which Vermont paid no attention to the proprieties among the states, and would allow people to run off from their obligations in New Hampshire, New York,

Massachusetts, and Connecticut and get themselves free from the bonds of matrimony up in Vermont.

Well, from time to time over the years, various states have been the havens for those anxious for speedy divorce who were unable for one reason or another to meet the requirements of their own states, and this has not been a good situation. This was why, when the Conference first came into being, a {4} concern was expressed that it should deal with the topic of marriage and divorce law; and if you will read the Handbooks of the Conference, or such parts of them as is necessary to give the whole picture — you don’t need to read the entire set of Handbooks — you will find almost constantly some form of Conference concern with either subjects of divorce, subjects of the recognition of divorce, subjects of marriage and how best we can get agreement with respect to marriage and its various aspects to reduce the conflict among the states.

You will find the pathway of the Conference strewn with the wrecks of Acts that seemed to be desirable, that did receive the approval of the Conference, and then after a few years turned out to be utterly ineffective and were discarded.

This situation had prevailed until we had almost given up all hope. We had been asked by a group of lawyers, social scientists of one persuasion or another, representatives of the professions affecting the human relations, to hold ourselves in readiness to draw an Act dealing with the vexed subject of divorce, if they could ever get together and agree upon fundamental principles which would govern such an Act. Well, they just never did get together and agree.

However, in connection with that request we had instituted a Special Committee on Divorce and Marriage Law which {5} stood by faithfully, and finally, you will recall, some five or six years ago that Committee, under the co-chairmanship of Len Brown and Bernie Hellring, decided that the time was ripe to do something; that we should no longer wait around; that there was a fresh wind blowing in the country and throughout the world; there was interest in Great Britain, there was interest throughout this country, in doing something that would do away with the whole unsatisfactory and hypocritical nature of the present divorce laws; that it would junk the old notions of fault of various sorts and kinds, and associated forms of statement which had resulted in the adversary type of divorce litigation, even when there was really agreement between the parties; that it had resulted in hypocrisy and prejudice, and what have you, and had stimulated in some instances, perhaps, conflict where there would not have been conflict.

All this, they felt, should be abandoned in favor of the concept of the breakdown of marriage as a basis for divorce, which had been proposed by a number of thinkers in the area, and which, I think I can say properly, had really become the practice in American law, although definitely not the legal theory.

And so you will remember that some five years ago in {6} Miami, if I am correct in my remembrance, the Special Committee came forward with a proposal that now was the time to act. Now was the time for the Conference to see if it could do something by way of providing an adequate basis for a modern law of divorce; and this was agreed to in substance by the Conference.

Steps were taken to secure adequate funds for the research that must necessarily go into that sort of a project, and the Committee was successful in securing funds for study and for research, from both the United States Department of Health, Education and Welfare, and also from the Ford Foundation. And with that support studies were initiated.

That has turned out to be a rather long-continued process. You have heard, I think, in the opening day of the Conference of a monograph which Professor Levy had prepared as the basis for concern and study by the Committee. You can call it a monograph if you want to. I suppose it’s a monograph in the sense that it is a unity, but I would call it about the most polygraphic monograph that it has ever been my good fortune to encounter. It represents a tremendous volume of research and inquiry, not only by Professor Levy, but he would be quite frank, I think, to say that he has been ably abetted therein by Professor Kay, since she joined us as a co-Reporter; and I do want to express the gratitude of the Committee to both of them for {7} their work.

Because of the monumental nature of the investigation that had to be embarked upon first, therefore, we have been a little slow in getting down to the actual work of drafting and of getting something that could come before the Conference. We have been agreed on the concept of irretrievable breakdown as the basic ground upon which marriage should be dissolved. I should have said that we have not worked alone, nor with our Reporters alone. One of the delaying factors was that we were busy recruiting a staff of advisers from the fields of the practice of marriage and divorce law, from the fields of the various social and behavioral sciences, sociologists, clergymen, psychologists, psychiatrists, all the areas of life and activity that impinge upon the institution of the family and the problem of marriage and divorce, and we have had the benefit of suggestions in which these advisers have aided us in blocking out the problem areas and in identifying the issues with which we should deal.

We have also had the advantage of a cooperating committee from the Section of Family Law of the American Bar Association, and these ladies and gentlemen have been exceedingly interested, and they have been in attendance at our various meetings. We have held meetings over the past two years in {8} various cities and at times and places, and have undertaken to identify the problem, to organize the issues, and in some measure to come to an agreement on what should be done.

And we had so far progressed during the last year that we felt that it was altogether proper to lay before you at this meeting some preliminary work and some specific drafts, but due to certain considerations we had to delay our last meeting precedent to this session of the Conference to the day immediately preceding the convening of the Conference.

We worked all day. We found that we had to continue to work through several other days. The result of our discussion was that, instead of the survey of various parts of the law, various problems, including not merely termination of the marriage relationship but problems of custody, of support, of maintenance, matters of that sort which originally we thought we would be ready to lay before you at this meeting, we came to the conclusion finally that it would be best simply to come to you with a well-done, as well as we can do it at the moment — draft of the proposal respecting dissolution or termination of marriage.

As a result, while we certainly stand behind what was said to you in the material that appears in your notebooks under our tab concerning the report of the Committee and the problems {9} that it has, we do not stand upon the drafts that were tentatively written out in the book. We have radically revised the draft respecting termination of marriage. We have done quite a bit of revision and thinking on portions dealing with the other topics, and the net result is that we wish simply to come before you at this Conference with a draft on termination, which is represented by the new material which is on your desks, which was distributed, and we will ask you to refer simply to that material as we put the language before you; and at this time I will ask Judge Gibson if he will begin the reading section by section, unless there are questions which occur to some of you that you would like to raise from the floor.

Seeing no indication of a desire from the floor, Judge Gibson, will you start?

MR. GIBSON: Yes, Mr. Chairman. I will commence reading from what is called the Second Tentative Draft, the Third Working Draft. That should be on your desks. It’s not in the Commissioners’ books.

MR. BARRETT [Jonesboro, Ark.]: Is that limited to Part II?

MR. GIBSON: It is limited to Part II.

MR. BARRETT [Ark.]: Thank you.

MR. GIBSON: Very well. We will commence, then, Part II, Dissolution of Marriage. {10}

Section 201 [Dissolution of Marriage; Legal Separation] —

The brackets are just for the purpose of headnotes. Some states have them; some states do not.

a) the marriage is irretrievably broken; and

MR. BURDICK [Williston, N.D.]: As I read the United States Supreme Court decisions, a state court cannot acquire jurisdiction in {11} personam to render a support order against a nonresident spouse who is served other than by personal service, or even order a decree of custody of the children. All the court can do, as I understand it, is to decree a separation or divorce of the marriage.

Now, here you have made the power of the court conditional upon all four of these situations concurring, and I think you should have some qualification in here recognizing that, to the extent that either the due process clause or something permits that, then these four things should be considered; but to require them willy-nilly, I think, would perhaps place a state in the position of being unable to grant a divorce where service was obtained against a nonresident spouse.

CHAIRMAN MERRILL: Judge Burdick, I recognize the force of your suggestion, which I think might have had more force a few years ago than it has now, in view of the developments that have taken place in respect to long-arm statutes and the various ways in which process may be served outside the state with the effect of personal service. The Interstate and International Procedure Act which this Conference promulgated a few years ago, which has been adopted in a number of states, and other long-arm statutes which are equally lengthy in their reach, have, I think, made it possible in all but, certainly, a very {12} small number of sporadic and maverick type situations to acquire personal jurisdiction. Even though the particular spouse may not have been present in the state, the fact of his having a family there may be sufficient.

MR. BURDICK [N.D.]: I would be hopeful that this is true, but I doubt, from the present United States Supreme Court decisions, that this would be the result. I recognize the need for long-arm provisions, but even there I think the defendant himself must have had some contact with the state, such as cohabiting in the state of the forum or contracting the marriage there or doing some other act in connection with furthering the marriage in the state exercising the jurisdiction.

CHAIRMAN MERRILL: What about having a wife and children there? He can be got for not supporting them in that state.

MR. BURDICK [N.D.]: If they moved there without his assistance, that may not be a sufficient act of contact on his part.

CHAIRMAN MERRILL: He can be extradited in that state and prosecuted criminally, even though they got there without his assistance.

MR. BURDICK [N.D.]: True enough, but even so, we must recognize the fact that under the United State Supreme Court decisions this would preclude this court from exercising the jurisdiction in those cases. {13}

CHAIRMAN. MERRILL: The Committee will consider that in the light of your comments.

MR. JOINER [Detroit, Mich.]: Mr. Chairman, on that very same point, I think the point that is made is premature anyway, because we don’t have before us Part III and Part IV, or any information as to how this is to be dealt with, and even recognizing the validity of everything that Judge Burdick says, it can be dealt with in those parts anyway, to recognize the problem that he states.

CHAIRMAN MERRILL: Thank you, Professor Joiner.

MR. WADE [Nashville, Tenn.]: Mr. Chairman, I think that you have now phrased (1) (b) and (c) as conditions precedent, and the way this reads now, it sounds as if the parties needed to get together and arrange for this. It may be a part of the decree. It’s a little bit the language that is used. I think, instead of making it precedent, "have been accomplished before the decree of dissolution can be granted."

CHAIRMAN MERRILL: Our thought was that it was desirable to phrase it this way as a basis for jurisdiction.

MR. WADE [Tenn.]: The other question I have is how you plan to treat annulment. I would gather from this that you do not want to regard annulment as a dissolution at all; that you regard annulment as rendering it void ab initio. {14}

CHAIRMAN MERRILL: This, Dean Wade, is the reason, as the chair has understood it, for the bracketing of "otherwise valid". There is still reserved for consideration by the Committee the question of whether we want to treat all decrees terminating what even appears to be a marriage under this part on dissolution, or whether we will deal with the problem of annulment through another part of the draft, which would be in Part I, which is going to deal with the subject of marriage. We do intend to put before you a complete code before we are through.

And so my view, Dean Wade, is that this is an appropriate point to raise, but it is one which is yet to be put before you by the Committee, and is reserved for consideration.

MR. WADE [Tenn.]: The word "otherwise" doesn’t indicate other than what.

CHAIRMAN MERRILL: Otherwise, yes. Well, you will notice that this is bracketed, and it is simply an attempt to explain a reservation. This is language which will be subject to revision later.

MR. BURDICK [N.D.]: Mr. Chairman, I’m wondering if your mandatory feature here requiring the court to enter the decree when the court finds these facts exist wouldn’t preclude marriage {15} counseling, if that were indicated.

Now, I’m not in favor of mandatory marriage counseling, but I do believe that it should be permitted in some cases, and this language would seem to preclude the court deferring action in the case so as to give the parties an opportunity —

CHAIRMAN MERRILL: There is provision later.

MR. BURDICK [N.D.]: But your language here requires the entry of the divorce.

CHAIRMAN MERRILL: But only on the final decree, and we have a procedure later under which counseling can be carried on.

MR. BURDICK [N.D.]: It seems to me your language is quite abrupt on that point, as if to afford no alternative of that character.

CHAIRMAN MERRILL: We will note the suggestion.

MR. JOINER [Mich.]: Mr. Chairman, I’m troubled by the style of the draft, Part II. It needs to be reworked, I think, to make clear a matter which I’m sure would not be misunderstood by the people here, but which I think it calls for. It says, "If one of the parties requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects." {16}

Now, what it means is that if a decree of dissolution is to be granted, it should be granted in the form of a decree of legal separation.

CHAIRMAN MERRILL: In other words, that the court is going to grant the decree, if it shall be in this form.

MR. JOINER [Mich.]: There is a problem there, I think, in the style of the language.

CHAIRMAN MERRILL: We will take that under consideration.

MR. CUNNINGHAM [Md.]: I’d like to ask a question about the phrase "irretrievably broken." "Irretrievably" to me has a note of finality that worries me a little bit. If this is an important word of art, I wonder if you thought of various alternatives here and finally came to this, and what was the background of the word.

CHAIRMAN MERRILL: The background is this, that it is a term which has crept quite pervasively into the literature. It is, for instance, the language which was used by the Archbishop’s committee in England. It is the language which has been used in various writings in this country. I have here the English bill, "that the marriage has broken down irretrievably"; this is the language used in our sister jurisdiction.

A recent California statute uses the term "irremediable {17} breakdown of the marriage," which is substantially the same type of concept. A decision in my own state, where we have the statutory basis of incompatibility as a ground for divorce, recently stated that this means that the marriage has irretrievably broken down. This is coming to be quite a common phrase in the literature respective to marriage law, and it was for that reason that we chose it. We could try to think of other terms, I suppose, but this seemed desirable. It appears to be a concept that is getting to be quite pervasive in the literature respective to divorce.

MR. KARESH [Columbia, S.C.]: Mr. Chairman, apropos of the remarks that have just been made, I suppose "irretrievable breakdown" can’t be and will not be defined. It’s customary, of course, to define terms for the purposes of an Act, but I imagine in the light of the preliminary remarks attached to the draft that that defies definition and will not be defined; is that correct?

CHAIRMAN MERRILL: At the present time the Committee is not thinking in such terms. However, you will note as we go farther down into the section that there are provisions that in certain types of situations where certain facts appear, this shows that the marriage has irretrievably broken down.

MR. KARESH [S.C.]: Well, may I say further that the language {18} of the draft is "irretrievably broken". However, both the language that has been employed in these remarks and in the report of the Special Committee, the phrase used has been "broken down", and there’s a slight difference in the flavor of those two. Is that deliberate, or an oversight? To say a marriage is broken — that carries with it the connotation of dissolved; broken down means collapsed.

CHAIRMAN MERRILL: Well, this is a matter of language which the Committee will certainly be glad to take under consideration.

MR. CLOSE [Las Vegas, Nev.]: I’m directing my attention once again to paragraph (2), and as a matter of, I think, style, the way I read the last four or five words, "unless the other party objects", would preclude a decree of legal separation. I would imagine that in some cases, even though one party might object, that a legal separation might be indicated to the court. If that is the case, I presume that he could grant that decree of legal separation; but the way I read this, that would be precluded.

CHAIRMAN MERRILL: Commissioner Close, the thinking of the Committee has been throughout that the device of legal separation is something that is undesirable; that it should persist only based on substantial disagreement of the parties. {19} One of our psychiatric advisors said that this is the sort of thing which seems to be an incitement to homicide if you continue it too long.

MR. BURDICK [N.D.]: I have another suggestion with respect to sub d) of (1), and that is that you require the period of residence in the county of sixty days immediately prior to the filing of the petition.

Well, normally, divorce being an exercise of equity jurisdiction, you regard the rights of the parties as they appear at the time of the hearing on the petition, rather than on the date of the filing, so that if residence has actually been accomplished by the time the hearing is held, that ought to be sufficient.

CHAIRMAN MERRILL: This is a point which has been raised before the Committee, but we had reasons for the alternative statement there. The first one, the "immediately prior to the filing of the petition", was intended to be similar to the residence requirements for jurisdiction to divorce which you frequently have in states today. The parties, or one party, must have been a resident of the state for a certain period; and we took the sixty days immediately prior to the filing of the petition.

Now, the reason for the second alternative, "or the {20} entry of the decree", was this, that the point was raised that there may be a situation in which the wife has at the time of the break gone home to mother and has stayed there for a considerable length of time, and then in order to get jurisdiction over her husband she wants to file her petition in the state where he has continued to live, so she comes back, and again the idea is that she, after all, has had a background here. If she resides in the jurisdiction for as long as sixty days prior to the entry of the decree, this gives opportunity for the court to have available to it such information as may be pertinent respecting her background, and so on, and that this should be sufficient even though she may have not resided sixty days immediately prior to the filing of the petition within the state.

This was the thinking of the Committee, as I understand it.

MR. BURDICK [N.D.]: Well, I would think you would delete the period prior to the filing of the petition, and simply have the sixty days prior to the entry of the decree.

CHAIRMAN MERRILL: Your thought is that the petitioner should be able to come into the state tomorrow and file her petition the next day — the county or district, that is?

MR. BURDICK [N.D.]: I think the petitioner should have {21} resided in the jurisdiction for the required time preceding the entry of the decree.

CHAIRMAN MERRILL: And that alone would satisfy you, even though the entry into the state had been the day before filing of the petition?

MR. BURDICK [N.D.]: That’s correct.

MR. BRAUCHER [Cambridge, Mass.]: Mr. Chairman, I’m a little confused as to what our posture is on this draft at this time, This is the first time this Act has come before us.

CHAIRMAN MERRILL: It is.

MR. BRAUCHER [Mass.]: I understood that we were to take up some rather fundamental issues of general policy, and not to deal with the details of this draft. Have we changed that type of consideration?

CHAIRMAN MERRILL: I may not have been sufficiently explicit in my introductory remarks, and for that I apologize, but our view is that we do not wish to present to you issues of policy apart from some language on the subject. Therefore, we are washing out the issues of policy that were raised in respect to support, to custody, and so on.

Now, insofar as issues of policy arise with respect to the draft on dissolution, those issues are here for consideration. {22}

MR. BRAUCHER [Mass.]: What I have in mind is: Has the Committee abandoned the notion that it would like an answer to the question whether the sole ground of divorce should be that the marriage has irretrievably broken down, or whether there should be additional, more specific grounds?

CHAIRMAN MERRILL: No, Commissioner. That is still in the thinking.

MR. BRAUCHER [Mass]: Because it seems to me that is a big enough subject, without worrying about whether the provision for custody is a condition precedent to jurisdiction or a condition precedent to the decree, and all the other sort of things you will get into.

CHAIRMAN MERRILL: The thought of the Committee is that these are so coincident that we get a better discussion if we discuss them in connection with language.

MR. BRAUCHER [Mass.]: I don’t want to be premature about this, but in order to help myself to understand what we are discussing, would it be appropriate if I moved that it is the sense of the house that the draft should proceed on the basis of providing for divorce only on the ground of irretrievable breakdown of the marriage, without any specification of any additional grounds? If it is appropriate, I will so move, on the thought that we can then talk about that and not get into {23} seven or eight different questions at once.

CHAIRMAN MERRILL: The chair will rule that is in order at this time. You have heard the motion. Is there discussion?

MR. JOINER [Mich.]: Mr. Chairman, I gather, though, that if I read this draft correctly, what you have here is a basic statement of irretrievable breakdown — maybe "down" is in it some place — the broken marriage; and then in a subsequent provision here you do specify some specific things, and therefore this motion, if it’s voted upon favorably, would be, really, contrary to the philosophy of the draft that has been presented to us; is that right?

CHAIRMAN MERRILL: This is not the view of the chair. The view of the chair is that the motion, as he understands it, will express the approval of the house with respect to making the breaking of the marriage, or the breaking down of the marriage irretrievably, the sole formal ground for dissolution. Now, these remaining sections which you have in mind —

MR. JOINER [Mich.]: I understand that. I think that’s correct, but —

CHAIRMAN MERRILL: These bear on that. These bear on that basis.

MR. JOINER [Mich.]: Well, they do give specific statements, {24} and not only by way of example; they give specific direction to the court that in the event that a certain thing happens, this has broken down.

CHAIRMAN MERRILL: This is right, but this is a subsidiary thing.

MR. JOINER [Mich.]: Therefore we vote "yes" on it if we like that kind of an approach, right?

CHAIRMAN MERRILL: This is the chair’s understanding, right.

MR. BURDICK [N.D.]: I’m wondering if the Committee is considering a series of some of the traditional grounds for divorce as creating a presumption of the "irretrievably".

CHAIRMAN MERRILL: The Committee has not thought in those terms. We have thought about them, and the Committee at present is opposed to it.

MR. BUERGER [Buffalo, N. Y.]: Well, anyhow, I believe in this irretrievable breakdown concept. I would also think that the Committee should give consideration to utilizing some of the traditional grounds as creating a presumption that the marriage has irretrievably broken down, if the petitioner desires to invoke it.

MR BRAUCHER [Mass.]: Mr. Chairman, if I may speak again on this subject, I do not want to be premature. You have only {25} read, as I understand it, Section 201, and it is a package with the whole rest of the thing, and maybe in order to vote intelligently on the irretrievable breakdown question you need to go through the other sections. I didn’t mean to try to short-circuit discussion. What I was trying to do was to focus discussion on the question of irretrievable breakdown on the one hand versus desertion, adultery, five years’ disappearance, extreme cruelty, and all the rest of it; and this is a major question. All these other things relate to it, and I thought if we could discuss, sort of, that question, you know, and save any other types of questions until we had sort of disposed of that, maybe we could get forward; but I did not mean to foreclose consideration of the various factors that come in these later sections as to what you mean by irretrievable breakdown of the marriage.

Some of these things are a little artificial. That is, as I read this, you have a compulsory finding of irretrievable breakdown in various circumstances where it may not be the fact, as you or I would look at it if we were making an investigation, and I think that’s deliberate. That is, I think when the parties come in for a divorce, as I understand this draft, you are not going to have a judge saying, "Well, you people are behaving childishly, and we are not going to grant you a divorce." To some extent, when they are acting together, they are their own {26} best judges of whether they have irretrievably broken down or not. That isn’t quite presented in Section 201; it waits until you get over to one of the later sections, and maybe my motion should be deferred until you have those other sections before you.

CHAIRMAN MERRILL: Commissioner Braucher, your ESP is excellent, and in view of that I would inquire of you: Do you wish to withdraw your motion?

MR. BRAUCHER [Mass.]: I think temporarily, on the ground that it may be premature at this point.

CHAIRMAN MERRILL: The motion is withdrawn temporarily, with leave to renew. Is there any other discussion?

MR. CUNNINGHAM [N.D.]: I have a sort of grammatical point. If the marriage is retrievably broken down, instead of irretrievably, is it still possible to get a decree of legal separation? If you go on the assumption that if it’s irretrievably broken down there will be a decree of dissolution unless the parties want to call it a legal separation, and if they fail to establish irretrievable breakdown, would it necessarily follow they could get a decree of legal separation?

CHAIRMAN MERRILL: No. I think the answer is probably "No" to that.

MR. CUNNINGHAM [N.D.]: Also with respect to your remark that {27} you favor the idea of doing away with legal separation, I know from my experience in the military that a dependent wife’s benefits depend on the continuation of the status of marriage, and a lot of lawyers advise unhappy wives of soldiers to get a divorce, not knowing that they cut off all her benefits, so that sometimes there is an advantage in carrying on the state of the marriage, even though for all practical purposes it may be broken down, in order to provide a means of providing for the wife and children through these benefits.

CHAIRMAN MERRILL: The chair has had no particular experience with the problem that you mention. I should think that there should be something in the military regulations which would make it possible to require a soldier to support his children, even though he had been divorced. This is a matter which we will cover at a later point. If you cannot have adequate provision for the support of the children under c), I suppose the court will not decree a dissolution.

MR. EASTHAM [Albuquerque, N.Mex.]: Coming from a state that allows divorce for incompatibility, I think we basically in a marital breakdown type situation have certainly found it to work very satisfactorily. I would like to hear from some other people in the states that have what we call tough divorce laws as to why the legislatures in those states won’t change them, and maybe it will shed {28} some light on this Conference.

I hate to draft a bill that you can’t get the states to adopt. I think you will have no difficulty with this concept in the incompatible type states, but I think we are in a great minority, and I think most of the states have specific grounds that require some misconduct, if you want to call it that. I’m just wondering if there is anyone here at the Conference who is willing to say that they don’t agree with this breakdown philosophy. Or are we that much different from our various legislatures?

MR. MILLIMET [Manchester, N.H.]: Mr. Chairman, I hadn’t come over to the microphone to answer Commissioner Eastham’s question, but I’ll try to do so.

I think that there would be considerable difficulty in New Hampshire in persuading our Legislature to adopt this single cause of divorce. It’s largely based, I believe, at the present time on religious grounds. The population of New Hampshire is substantially Roman Catholic, and there will be considerable opposition to it.

I have had personal experience with certain members of the Legislature who have for years campaigned to make divorce more difficult rather than easier, and I must candidly say to Commissioner Eastham that, although I personally would support {29} this concept, and I think that almost all our Superior Court judges who handle the problem would support it, and most all practicing lawyers who accept divorce matters will support it, I have grave doubts whether the general public and the Legislature will support it.

CHAIRMAN MERRILL: Do you wish also to speak on another topic which might be germane to what we are considering, Commissioner Millimet?

MR. MILLIMET [N.H.]: I just wanted to ask a very simple question. Why do you need sixty days in the county? We don’t have any provision like that, and I wondered why it’s in there.

CHAIRMAN MERRILL: Probably because so many of our states have wider geographic range than New Hampshire. As I understand it, you actually have a state-wide jurisdiction, do you not, in your trial courts?

MR. MILLIMET [N.H.]: Yes.

CHAIRMAN MERRILL: And under that sort of a situation I can see why residence in the district or the county is of little concern; but in so many of our states with very large counties and varied districts, the other matter is important.

You will notice that it may be that we should extend our brackets a little bit there, so that New Hampshire could take care of its peculiar situation, and Oklahoma could take {29} care of its.

MR. MILLIMET [N.H.]: There are a few other small states. Perhaps it should be bracketed.

MR. DAVIS [Houston, Tex.]: Mr. Chairman, in connection with Section 201 (1) d) I would recommend that the residence requirement be limited to before the filing of the petition, I have in mind the situation where one spouse goes home to mother and suddenly files a petition. I think you need a cooling-off period of time, and I think that once the petition has been filed, the marriage is much more likely to be irretrievably broken down than if there is a cooling-off period, and maybe they might not file if they had the cooling-off period.

CHAIRMAN MERRILL: Well, do you think that the cooling-off will progress more rapidly in Texas than it would in Oklahoma? [Laughter]

MR. DAVIS [Tex.]: I do not, but I think that there are many instances where someone might go to another state and quickly file. I realize that if they already live in that state, this cooling-off period doesn’t apply, but there are many instances where they go to another state to get a divorce, and I think it would be fine to have the cooling-off period.

CHAIRMAN MERRILL: Thank you. That will be considered {30} by the Committee.

MR. JOINER [Mich.]: Mr. Chairman, I should like to respond to Mr. Eastham, if I may, in a slightly different vein.

I happen to think that this is the most important subject that we have had before us, even including the Commercial Code and other things, in many, many years, and that of all the subjects we have before us we should respond as best we can in light of our own backgrounds and our own training as to what is the principled and correct decision here, rather than the expedient decision and the decision that would best get through the legislatures.

The crying need in this country at the present time is for such a group as this to sit down and think through the basic problem that exists here and come up with a statute which we think is the sound and best judgment as to the way to solve this problem; and if we start taking into consideration this kind of an approach at this time in the draft of the statute — the expediency of passing the legislation — then the statute that we are apt to draft is one that will probably be of very little value. The time will come when that will have to be presented before the various legislatures, and there are other people at that time who will deal with the problem of expediency, but I don’t think that’s the job of this group here in this {31} particular case at this particular time.

CHAIRMAN MERRILL: Thank you. The chair might add, if there is no other comment, that, as we said a minute ago, California has recently enacted, and possibly by now the Governor has signed, a bill which does adopt the irretrievable breakdown theory, or the irretrievable breakage theory, if that’s better style. That bill, I am informed, received great help from the Roman Catholic authorities in California. Is that correct?

MRS. KAY [Reporter - Berkeley, Calif.]: Yes, it is, and Commissioner Z’berg, who is a legislator from California, is in the audience, if he would like to speak on the subject.

CHAIRMAN MERRILL: Commissioner Z’berg, would you give us the benefit of your thoughts?

MR. Z’BERG [Sacramento, Calif.]: With regard to what? [Laughter]

CHAIRMAN MERRILL: Well, I think, first, since Professor Kay is not sure whether your recent legislative enactment on the subject of divorce has received the Governor’s approval, perhaps you could tell us: Has it received that approval?

MR. Z’BERG [Calif.]: I’m sure he’s going to sign it. There’s no problem about that.

CHAIRMAN MERRILL: He hadn’t signed it when you left? {32}

MR. Z’BERG [Calif.]: He and I don’t communicate very well. [Laughter]

CHAIRMAN MERRILL: And he doesn’t sign in the presence of reporters? The reporters are not present when he signs?

MR. Z’BERG [Calif.]: Oh, he’ll probably do it on television. [Laughter]

CHAIRMAN MERRILL: But at any rate, you weren’t watching television. [Laughter] Okay.

Well, the other question which I understood Mrs. Kay to throw at you was the question of to what extent the Roman Catholic authorities had either aided or had hindered the pathway to this new concept of the basis for marriage dissolution.

MR. Z’BERG [Calif.]: I don’t think they were particularly involved one way or the other. I didn’t see any, or wasn’t aware of any influence from any church groups on this bill at all.

As a matter of fact, it passed overwhelmingly, because we have been working on it for several years, but there was a great push for it. The press was very sympathetic, and it got a lot of coverage, so I doubt very seriously that the Church was involved at all.

CHAIRMAN MERRILL: Commissioner Z’berg’s testimony, {33} as the chair understands it, is that religion was not a factor, and I must say that the impression that the Committee has gathered from study, the news that has been brought to us from various sources, the contacts which have been made with various groups, indicate that there is a fresh wind blowing on this subject, a general willingness on the part of the country to rethink and to face the issue of what is a decent basis for dealing with the subject of termination of marriage, and that we can reasonably hope for independent consideration of the issues, that we can also hope for effective work on behalf of various groups who will study the subject.

I quite agree that we ought not to think that we can draw an ideal statute here in this chamber, or the other chambers in which we shall meet for the next few years, and then have that adopted overnight in all the jurisdictions. There will necessarily have to be studies. There will have to be contacts made. We will have to have the approval of individual groups, and there have been such contacts already made, and I have reason to think that this may be a matter that will appeal to the country. This is the thinking of the Committee.

If there are no further comments, shall we proceed to Section 202?

MR. GIBSON: {34}

(2) The petition may be filed by one or both of the parties.

MR. SULLIVAN: [Boise, Id.]: I would suggest in sub c) of paragraph (1) name the children of the marriage and also state their ages, because at least in our state the question of support of children is geared to minors, and I think that the age of the children should be included. {35}

CHAIRMAN MERRILL: The Committee originally had that provision in. It was brought out in Committee discussion that in many states, at least, persons beyond the age of minority who were children of the marriage remained entitled to support from their parents, and it was thought best not to make that a part of the petition. It will no doubt be brought out in connection with the testimony in the case, because obviously it has to come out in connection with the provision in 201 c); [conferring] and also I thank fellow committeemen for calling my attention to the fact that this likewise comes in the statement of marital status which is provided for in Section 202 sub (1). This is not before you at this time, so of course it’s unfair to say to you that it is taken care of otherwise, but that statement, which will be confidential in character, will be required to contain much more of the detail of this sort of thing than the petition, and the Committee will see that all relevant material is put into the form of that statement, which will be before you at a later stage in the deliberations on this Act.

MR. BURDICK [N.D.]: Just a minor suggestion to the Committee. Since dependency is what you are really talking about, in listing the names of the children why not show the names and dependency status of any children of the parties?

CHAIRMAN MERRILL: This calls, of course, for something {36} of a conclusion on the part of the draftsman of the petition. If all this is included in the statement of marital status, we probably will have it before the court, but in the form of a confidential document rather than something that will be in the face and eyes of all the reporters.

There will be, of course, later in the Act, when we get to the definition section, a section on definitions in the whole Act which will include a definition of "child" and "children", and this also may help you there, Judge Burdick, when you get that before you.

MR. MILLIMET [N.H.]: Wouldn’t it be desirable to require them to allege the residence requirement in the petition itself, so as to get that issue before the court to see if you have jurisdiction?

CHAIRMAN MERRILL: It’s there.

MR. MILLIMET [N.H.]: No, I mean the period of time, the six months’ period of time.

CHAIRMAN MERRILL: The chair’s interpretation, which perhaps is not founded, would be that the statement of residence would be included in the jurisdictional facts with respect to residence.

MR. EASTHAM [N.Mex.]: Joe and I have the same question. We don’t agree with the chair. We think it should be spelled out. {37}

CHAIRMAN MERRILL: Any other questions? [There were none.]

MR. GIBSON:

Section 203 [Response]

And I think they meant to suggest a change to "which the party must verify."

CHAIRMAN MERRILL: Thank you. Any comment?

MR. LONABAUGH [Sheridan, Wyo.]: Here again we seem to be setting up a procedure which is different from our normal rules, and I am wondering if that is wise. In other words, we call it a petition. It should, maybe, be a complaint. It should be twenty days, and we have twenty days in the Rules.

CHAIRMAN MERRILL: This was discussed in the Committee, Commissioner Lonabaugh, and one of the reasons for not simply saying we will follow the Practice Act, and so on, is that it is the intention to make a break with the past procedure and the adversary character of the divorce litigation.

You will notice that the petition is to be filed "In re the marriage of _____________ and _____________." The idea was we {38} would not have adverse parties specifically so denominated, and since we were making that sort of a break, it would be wise also to make a break in the style of the pleading. That’s the thinking of the Committee.

MR. BURDICK [N.D.]: Mr. Chairman, it seems to me that if you are going to make a departure from your Rules, then here, I think, is a great opportunity to truly provide for a cooling-off period. Give him sixty days in which to answer the proceeding, or ninety days, so if the defendant is sincere about trying to get back together again with his spouse, he’ll have plenty of time to consider this.

CHAIRMAN MERRILL: There are later provisions where opportunity is further accorded for what we may call a persuasive period, in the event one party is objecting to the continuance of the marriage. There may be cases where both parties are agreed. They either join in the petition, or the other party does not object, and I don’t know if we ought to require a cooling-off period in all of those cases.

MR. EASTHAM [N.Mex.]: Mr. Chairman, what’s the reason for verification? Is it so you won’t have to have a court hearing, in fact, if 204 sub (1) is met?

CHAIRMAN MERRILL: No, at least this is not the understanding of the chair. This is simply the need to have a {39} solemn declaration, and to bring the petitioner under the obligations — I may say to you that the Committee has in mind, perhaps, a rephrasing of that which would make it read not simply "verify", but a statement under oath, or subject to the obligations of perjury, to take care of various statutes in the states.

MR. EASTHAM [N.Mex.]: I’m not easily convinced by that. I hope the Committee will continue to consider whether this is any more solemn, or less solemn, than any other form of litigation. I agree, you are trying to keep it from being litigation, but it is filed in court, and there are an awful lot of court things that are filed that are in need of verification. If the parties want to meet 204 sub (1) by means of the petition itself, this is fine, but I just wonder about the necessity of the requirement of verification.

CHAIRMAN MERRILL: The Committee will note the comment.

MR. WADE [Tenn.]: This is in furtherance of what Mr. Eastham has said. You have indicated what should be in the petition. You have not indicated what should be in the response. Do you say in the response, "I don’t agree that it’s irretrievably broken down", or do you set out the reasons why you don’t believe it, or what? If all you say is, {40} "I don’t agree", verification carries no particular implication.

CHAIRMAN MERRILL: Thank you, Dean Wade. Any other comments?

MR. BUERGER [N.Y.]: Mr. Chairman, I should like to inquire the reasons for the use of what to me is a completely new word in the field of practice, the word "response".

CHAIRMAN MERRILL: "Response" is not an unfamiliar word to the chair in his jurisdiction. It is frequently used as the opposite, shall we put it, the opposing plea to the requests in a petition. It’s quite familiar in many states. Do you feel that this is something which should be bracketed, in order to take care of the varying practice of the states?

MR. BUERGER [N.Y.]: May I suggest to the Committee that possibly the more frequent word outside of Oklahoma is "answer". [Laughter]

CHAIRMAN MERRILL: Thank you. [Conferring] I am reminded by a comment from the bench that this is another one of the places where we wanted to make a break in many jurisdictions.

MR. BUERGER [N.Y.]: May I revert to Section 201? I particularly refer to Section 201 (1) d). There has been some reference to the possibility of a cooling-off period, and I’m {41} wondering whether there is any really worthwhile purpose in requiring a period of residence in a particular area of the state, whether sub d) might better read "one of the parties has been a resident of this state for six months". And I don’t then care whether it’s prior to the filing of the petition or entering the decree.

CHAIRMAN MERRILL: This gets back to the fact that in many of our states the counties and judicial districts are rather wider in area than in others, and the theory that maybe it’s enough to require — that you should require some residence in the district, where people will have an opportunity to know about the petition, where the court can gain information, and so on.

MR. BUERGER [N.Y.]: The second question with respect to Section 201, now relating to (2): What happens? What is the duty of the court if one party requests a decree of legal separation and the other party objects? Is the court then directed to order a decree of dissolution?

CHAIRMAN MERRILL: If the court is going to grant relief, it would grant a decree of dissolution as its relief.

MR. BUERGER [N.Y.]: Is that a mandatory requirement upon the court?

CHAIRMAN MERRILL: This depends upon the status of the {42} case with respect to the subsequent sections. If it is a situation in which under one of the subsequent sections relief should be granted, that relief will be a decree of dissolution rather than of separation.

MR. BUERGER [N.Y.]: May I suggest to the chair that my comments have been for information, rather than by way of criticism.

CHAIRMAN MERRILL: Thank you, sir.

MR. JOINER [Mich.]: Mr. Chairman, on the section that Commissioner Buerger referred to, and the relationship of counties and the place and the time of residence, is this intended to be the venue provision for this particular statute, and to override and overcome other venue provisions in the statute?

CHAIRMAN MERRILL: Yes.

MR. JOINER [Mich.]: I hadn’t thought it really was. I thought it was something in addition; but this is the only venue provision?

CHAIRMAN MERRILL: This is substantially venue, yes.

MR. JOINER [Mich.]: Well, one other remark, then. I want to urge as strongly as possible Commissioner Eastham’s position about verification.

CHAIRMAN MERRILL: Thank you, Commissioner Joiner.

MR. KEDDIE [Yuma, Ariz.]: I didn’t intend to come up here and speak {43} on the same point that Commissioner Buerger did, but now that I read it, I realize that this is a step backwards for Arizona. We don’t require any length of time of residence in a county.

Now, we thought we were moving forward when we eliminated that provision. There is a reason, I think, too. I have had cases where it was embarrassing to people to commence their action in their own county, and they consequently deliberately moved to another county for the purpose of divorce, which they could get immediately, and I don’t think there is anything wrong in that.

CHAIRMAN MERRILL: Commissioner Keddie, am I correct in my recollection that Arizona is another jurisdiction in which the Superior Court has state-wide jurisdiction?

MR. KEDDIE [Ariz.]: That’s correct.

CHAIRMAN MERRILL: I can see your point. I think we shall refer it to the Committee, but I think we probably have a situation here in which rather wide brackets are indicated.

MR. KEDDIE [Ariz.]: I have another point, if I may. It was really on Section 203 that I stood up here.

CHAIRMAN MERRILL: Yes, sir. We are now going to 203 with Commissioner Keddie.

MR. KEDDIE [Ariz.]: The point I make is that, as I understood {44} your explanation of the thirty days, as opposed to what I think is the usual twenty days’ response period, it was that you wanted to try to eliminate the adversary feeling or atmosphere of a divorce, and I submit to the chair and to the Committee — and I’m going to make a motion to carry out my point — that I have never seen a divorce action yet which could be saved by ten additional days.

These people are wild. You know, when they get in your office, it’s all you can do to just talk to the two of them at the same time. I think there is absolutely nothing gained by changing what our Civil Rules are for divorce. You are not going to accomplish anything.

Consequently, I move to strike Section 203.

CHAIRMAN MERRILL: Commissioner, may I inquire if you would be content to reserve your motion until we are through with the reading of 204, which may, I think, alter the situation for you?

MR. KEDDIE [Ariz.]: I have to confess, I haven’t read 204, so I will, yes. [Laughter]

CHAIRMAN MERRILL: Before I recognize either party — and I believe Commissioner Davies hasn’t been heard from yet, so I may recognize him first — I would like to make this request of the gentlemen of what to them will be the right side of the {45} room, which is to my left. There are shadows which are cast over there that make it difficult for me to recognize who is speaking. So will you particularly bear that in mind when you rise, and state your name.

MR. DAVIES [St. Paul, Minn.]: I’m not sure about this, but I have a feeling that the Committee has really in its deliberations focused on the substantive aspects of the bill, not the procedural aspects. There is something on page 13 in the materials in the binder that I would like to get to, and we’ll never get to that in this Conference, nor in the next one, if we keep on talking procedure. So I thought perhaps we could move on.

CHAIRMAN MERRILL: Well, I hope perhaps we will move on.

MR. BURDICK [N.D.]: I have a point on 203, where you require the filing of the response. When we adopted the Federal Rules of Civil Procedure in North Dakota, we do not require the filing of the summons to commence the action. In other words, we can commence an action in North Dakota without filing, and one of the main reasons why we took that approach was that in actions for divorce it was frequently desirable not to file, in the hope that the parties could get back together again; and here you would require that the action be filed in order to make a response, and I think this ought to be changed to "served" {46} instead of "to file", because this would fly in the face of our policy to allow the commencement of the action without filing.

CHAIRMAN MERRILL: Judge Burdick, in your judgment is there less solidification of position from service, as distinguished from filing?

MR. BURDICK [N.D.]: Well, here you don’t even require them to be served.

CHAIRMAN MERRILL: The party gets something that says the divorce has been asked for. Why is one more congealing than the other is this respect?

MR BURDICK [N.D.]: Now the service is upon the defendant.

CHAIRMAN MERRILL: Yes.

MR. BURDICK [N.D.]: But you don’t require that the response be served on the petitioner. You require that it be filed, and the action may not have been filed, so you are forcing the defendant to file the action.

CHAIRMAN MERRILL: The theory of the Committee was, of course, filing in the clerk’s office. I agree, if there is something of substance that is more conducive to conciliation in the mere service of a paper of this sort on the opposite party than there is in a filing, then perhaps there should be service of the response as well as service of the petition; but {47} the theory of both sections 202 and 203 is that you have reached the stage of commencing an action, and therefore if you file a petition, you file a response.

MR. BURDICK [N.D.]: It may not be filed. In North Dakota, for instance, we can start these actions without filing.

CHAIRMAN MERRILL: The Committee will take the suggestion under advisement.

MR. GIBSON: We will now proceed to Section 204.

Section 204 [Subsequent Proceedings]

Upon the hearing:

I should now also state at this time in connection with Section 204 (1) that the Committee has agreed to insert an additional provision in that section that provides a period — you might call it a cooling-off period — of sixty days before any decree is granted after the filing of the petition.

MR. JOINER [Mich.]: What’s that again now? {49}

MR. GIBSON: There will be a period of sixty days after the filing of the petition before any decree can be entered.

MR. JOINER [Mich.]: In any case?

MR. GIBSON: In any case.

MR. JOINER [Mich.]: Even when both parties come into court?

MR. GIBSON: That’s correct.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’m startled by this little suggestion. It seems to me to open the door to reversing everything the Committee has done. I was brought up in the State of New York at a time when the only ground for divorce was adultery, and a consentual divorce could be obtained in five minutes, and anything that says that should be increased to ten minutes is a step backward. [Laughter]

CHAIRMAN MERRILL: Thank you for the comment.

MR. JOINER [Mich.]: Mr. Chairman, I don’t understand why the Committee have reversed themselves on this. It seems to me they have presented us with an acceptable draft. What has happened in the last twenty-four hours, or whatever it is, that caused this? I’d like some explanation.

CHAIRMAN MERRILL: The explanation is that, thinking the matter over, having a second thought, the Committee came to the conclusion that it might be desirable not to let the parties {50} get a decree in haste and repent at leisure, or have to go to the county clerk the next day and take out a new marriage license and remarry.

MR. TOWNSEND [Indianapolis, Ind.]: Mr. Chairman, I’d like to make a count here. I came to this meeting today expecting to hear something interesting, new, and a little revolutionary in this field of divorce. I hear people getting up and screaming and hollering. It goes through my mind this way because I have trouble believing it.

Going back to a six months’ residence rule — I would have thought that the work should stop immediately, if you are going to put up these bars.

Let me make this point, and I won’t say any more, except that this shocks me, to think that you are moving backward here. As I see it, one of the problems is to get rid of these bad marriages. Everybody is talking about getting the people together again. Who are your experts up there? Let’s hear from some experts on this. How do you feel about this, you Reporters? Don’t you have some Reporters up here? [Laughter]

I know this to be true. Many marriages that are in the process of dissolution are in ambit. They are going back and forth. The truth of the matter is that when you have marriages, {51} often people are shifting in location.

Now, you marriage people — you experts — should know something about this, and I would think you should tell the Commissioners about this, so that we can understand what this is all about. I’m sorry.

CHAIRMAN MERRILL: May the chair first, before recognizing any other Commissioner, suggest to Commissioner Townsend and to the audience that we have certain problems in the Act with respect to proper provision for the care of children. Now, among other things, there is always the possibility that there has been intercourse between the parties at a fairly recent date before this particular hassle between them erupts into breakdown, and there may be pregnancy, and the thought of the Commissioner who brought the matter before us in our last Committee meeting was that this sixty days gave the opportunity for the discovery of a possible pregnancy and the introduction before the court [laughter] of the necessary arrangements for the support of the fruit of that pregnancy.

Now, you may laugh, but we are told by some of our judicial members that this is a distinct problem, and it is for this reason that we introduced the sixty days.

Now, I know what Commissioner Townsend is about to {52} say, I think, and I will agree this is not an ironclad provision. It is simply an additional cautionary provision.

MR. TOWNSEND [Ind.]: Commissioner Merrill, there are other problems here, if you are going to get us into that. They do tell us about venereal disease. That’s another problem that enters into this picture just as much, and you know it does, if you are going to get down to brass tacks.

Let’s talk about the facts. If you are going to come in here with six months’ rules and talk about pregnancy, that’s one thing; but let’s talk about pregnancy, if that’s the problem, or whatever it is that causes dissolution of marriages.

CHAIRMAN MERRILL: Well, we’re talking about it. [Laughter]

MR. BURDICK [N.D.]: I just want to say one more word about these children. Wherever you use "children" in the Act — and I won’t repeat this again — but whenever you talk about children in this Act, I wish you would consider either putting the word "minor" or "dependent", or leaving out both of those adjectives, but use the words that you mean. If you are talking about all the children, then say "children". If you are talking only about minor children or dependent children, please so indicate. This "child" is entirely too loosely used {53} here.

CHAIRMAN MERRILL: As we stated before, there will be a general definition of the terms "child" and "children" covering the entire Act.

MR. BURDICK [N.D.]: But I think you have to discriminate as you use the term. In one place you are talking about dependent children. You are not talking about the adult children who are self-supporting. In another case you are talking only about minor children, and, as I say, I think you should use some discretion here in how you use that term.

CHAIRMAN MERRILL: The Committee will consider that problem, and if they do not feel that their general definition sufficiently covers it, they will take care of that problem.

MR. KEDDIE [Ariz.]: Mr. Chairman, again, I didn’t stand to talk about the sixty-day rule, or whatever it is, whatever you are thinking of; but anybody that comes up with an idea like that hasn’t been practicing among people who are getting divorces. These people aren’t going to bed together very frequently, you know, until they get in that courtroom. To me that’s incredible; but that’s not the point I want to raise. [Laughter]

CHAIRMAN MERRILL: Proceed.

MR. KEDDIE [Ariz.]: Having read and listened to the reading {54} of 204, I can’t see that it answers my objection to 203, and I think it would be worthwhile at least to get the sense of the house. I think it was Mr. Jestrab who this morning said there is no one body that has done more to create lack of uniformity in the area of procedure than we have, and I’m afraid we’re doing the same thing here again. Therefore, I move again to strike.

CHAIRMAN MERRILL: Strike all of 203?

MR. KEDDIE [Ariz.]: Yes, sir.

CHAIRMAN MERRILL: I suggest that this goes much farther than Commissioner Keddie indicates as the reason for his motion. If he persists in stating it that way, we’ll make it that way.

MR. KEDDIE [Ariz.]: Mr. Chairman, can I modify my position? Apparently verification is of importance to the Committee, and it really doesn’t mean much to me, and what I want to do is get rid of this thirty days. What do you want to do, bracket the thirty days?

CHAIRMAN MERRILL: Frankly, it occurs to the chair that twenty days, while the chair is familiar with it and Commissioner Keddie is familiar with it, is not necessarily the universal answer date. It might be better simply to bracket the thirty days and let each state then fit into that {55} situation.

MR. KEDDIE [Ariz.]: That provision, Mr. Chairman, is simply this. I think the Rules of Civil Procedure — I don’t know what the Rules are in every state, but I think every state must have Rules that they go by.

CHAIRMAN MERRILL: Another comment, Commissioner Keddie, is that the filing of the response is optional. That’s another comment.

MR. KEDDIE [Ariz.]: I appreciate that, but my only point is that I think you ought to go by the Rules of Civil Procedure. We have got them there. We understand them. It’s all I can do to understand the Consumer Credit Code, and I haven’t even looked at the Commercial Code, because I’m getting confused, and I don’t want to confuse me any more. So I renew my motion.

CHAIRMAN MERRILL: Commissioner, may the chair inquire if brackets would satisfy the motion?

MR. KEDDIE [Ariz.]: No, I don’t think so. [Laughter]

MR. BARRETT [Ark.]: I did not rise to speak to that point. If you have finished with that . . . .

CHAIRMAN MERRILL: We do have a motion, Commissioner Barrett, which I think should be disposed of. Is there further debate on the motion? {56}

MR. WELLING [Charlotte, N.C.]: Mr, Chairman, I’d like to support this motion. We are down here, and Mr. Joiner made a statement about: don’t be concerned with the state legislatures when drawing these Acts.

MR. JOINER [Mich.]: This Act.

MR. WELLING [N.C.]: The Act is not worth a tinker’s damn if we cannot get it enacted, so that the lawyer has the tools to work with.

Now, every bill since I have been on this Commission, or every Act, comes up with its own rules of court procedure. We all have civil rules. My state finally got around to coming up with good civil rules after about fifteen years’ fight. By the time we got that, we learned that we got nineteen more rules of time and filing and responses to pleadings. And I support the motion, and I would like to see the motion carried, and substitute the Rules of Civil Procedure, as in all civil actions.

CHAIRMAN MERRILL: Well, now, if the chair understands the motion, the carriage of the motion will not bring about the result that you have just stated.

MR. WELLING [N.C.]: That’s what I would like to see.

CHAIRMAN MERRILL: But you would like to have the motion carry whether it prevails with you of not? Very well. {57}

MR. EASTHAM [N.Mex.]: Mr. Chairman, I somewhat share the desire to have uniform rules of procedure and practice, but I think in this particular case I sympathize with the position of the Committee, that they are creating a special animal that is not an adversary proceeding which our normal Rules of Civil Procedure apply to.

There is no requirement for a response unless someone wants to respond. We don’t have a complaint. We have something called a petition, which is not someone versus someone, but it’s kind of an in rem thing having to do with a marriage, and I’m afraid that with that approach, which I tend to agree with, we have to set up the rules of procedure in the Act; and that being the case, if someone is concerned about time, the bracketing of the 30 would certainly accomplish that, I think. But, I think we cannot take the procedure out of this Act and still have the good feature of having the non-adversary proceeding involved. So I am against the motion.

MR. MILLIMET [N.H.]: Mr. Chairman, the way I read this section, I should think these parties who are so hot to get divorced would respond the first day, and this eliminates the thirty days themselves. Isn’t that so?

CHAIRMAN MERRILL: If that occurs, we shan’t have to worry about how many days they have. {58}

MR. MILLIMET [N.H.]: That’s what I was suggesting, I don’t think that this thirty days is mandatory on the parties who are in a hurry.

CHAIRMAN MERRILL: This is right.

Any other debate? Are you ready for the question?

[Upon calls for the question the motion was put to a standing vote.]

CHAIRMAN MERRILL: The motion loses. Is there further discussion?

MR. BARRETT [Ark.]: Unless I am still visiting with Mary Queen of Scots — I am not clear whether 203 stays in or moves out.

CHAIRMAN MERRILL: 203 stays in. The Committee may consider some change, in that it has been apprised by the debate that the Commissioners have varied feelings about what that ought to be.

MR. BARRETT [Ark.]: That’s merely a preface to what I want to say. Under the Civil Procedure Act, according to 203, if you fail to file a response, you are in default. If so, then under 204 sub (1) it’s mandatory on the court, in default, to find the marriage irretrievably broken, whether there are children or not children.

CHAIRMAN MERRILL: No. {59}

MR. BARRETT [Ark.]: Yes it is, because it says nothing about it. Then when you go to sub b) on the following page, lines 20 and 21, it is discretionary for the court, but if there is default it is mandatory, and I think those two are inconsistent.

CHAIRMAN MERRILL: The line which the Committee sees, Commissioner Barrett is between the party who doesn’t care enough to come in and object, and on the other side the party who says, "There are children, and I’m going to do something about it, and I’m going to fight."

MR. BARRETT [Ark.]: Mr. Chairman, my point is that it isn’t stated that way.

CHAIRMAN MERRILL: If one party has denied under oath that the marriage is irretrievably broken down, the provision does not apply.

MR. BRAUCHER [Mass.]: I want to revert — I think it’s sub-section (1) a) — anyway, the first section — to the case where there is an admission for irretrievable breakdown, or there is a failure to deny it.

I really think this is the heart of the whole project. This is the great bulk of the cases, I believe, and I think it’s a matter of the utmost importance, and if you are going to have anything like a sixty-day cooling-off period in that kind {60} of situation, I think you are going to find yourself forced to go back to deal with the adultery case and put that in there and exempt it from the cooling-off period, and then you are going to start saying, "Well, shouldn’t you exempt cases of extreme cruelty and exempt cases of desertion, and all the rest of it?"

I think you lose the whole spirit of the Act. And with that thought in mind, it seems to me that it would now be appropriate to get the sense of the house on this question, and I would like to move . . . .

CHAIRMAN MERRILL: Before you start a motion, may the chair address one other inquiry to you? Would you suggest that the Committee ought to explore other ways of dealing with this problem of the possible existence of an unborn child that it has no opportunity to find out about?

MR. BRAUCHER [Mass.]: Well, I think all we have at this point is a compulsory finding of irretrievable breakdown of the marriage. You still have some other conditions to meet in terms of making provision for support and provision for the children, and it seems to me that the problem you are now raising is not part of the finding of irretrievable breakdown of the marriage. That’s what I have in mind.

What I would like to move is that it’s the sense of {61} the house, as we now understand, that there should be no cooling-off period for cases of admission or failure to deny the irretrievable breakdown of the marriage, so far as that finding goes; so far as this section goes.

CHAIRMAN MERRILL: Cases which come under 204 sub (1)?

MR. BRAUCHER [Mass.]: That’s what I’m saying, yes.

CHAIRMAN MERRILL: You have heard the motion. Is there debate?

MR. CALLOW [Wisc.]: I’d like to be heard. In voting for this motion, we then offer to the states a Model Act which provides in essence that if two people find that their marriage has failed this morning, they can file their joint petition and be divorced in the afternoon.

It was, I think, the consensus of the Committee that this was not desirable, and there was talk first of forty days. And the sixty days developed out of that conversation; but if you support the motion that has been made, you then believe it desirable, proper, appropriate, and in the public interest that people be permitted to on a moment’s, perhaps, serious difference, join in a joint petition that can result in a divorce that afternoon.

I don’t think we find the sixty days to be the inviolate time, or the perfect time, but at least it addresses {62} itself to that situation, which I think should be discouraged.

MR. JOINER [Mich.]: Mr. Chairman, I want to be sure that the last remarks are put in context. We’re dealing only with the non-children marriage.

[ Calls of "No! No!" ]

MR. CALLOW [Wisc.]: In response, this first section says that the agreed to disagree couple, whether they have children or not, can walk into the court and be divorced that afternoon. We think that is not desirable.

MR. JOINER [Mich.]: Wait a minute. They cannot necessarily be divorced. They can get a finding that that marriage is irretrievably broken. They can’t get divorced by your first section unless there are provisions for custody and support and a whole host of other things, by your first section.

MR. CALLOW [Wisc.]: The point is that that afternoon, by agreement, they can work out this matter between them and be in a position to marry the next day a third party.

MR. JOINER [Mich.]: That’s fair.

MR. CALLOW [Wisc.]: I think that’s unfortunate.

CHAIRMAN MERRILL: Reporter Levy had asked for the floor first, I’ll come to you next, Mr. Townsend.

MR. LEVY [Reporter - Minneapolis, Minn.]: I think it fair to say that many of the remarks made here have been accurate. I would simply like to {63} reiterate what Commissioner Braucher said about the importance to the draft and to the underlying concept of the draft of Section 201 and its provisions requiring a judge to be satisfied with the provision for custody, the provision for maintenance, which is our new term for what once was called alimony, and for support of the children; and under that clause we mean, as we do, to incorporate all of Part III, which will deal with the problem of the unborn child.

It should be clear that 204 (1) is meant to apply to all consentual divorces, including those in which children are involved, subject to 201 and the judge’s satisfaction with support, maintenance, and custody provisions.

I would also simply like to point out that I know of no jurisdiction in which the docket of the court would permit, in the absence of an available judge and a judge willing to approve under the terms of this Act property, support, maintenance, and custody provisions — I know of no docket which would permit a three-hour divorce. The issue is, of course, how you phrase what should happen when the two parties agree to the finding of irretrievable breakdown.

CHAIRMAN MERRILL: Now Commissioner Townsend.

MR. TOWNSEND [Ind.]: Well, could I address myself to this question of the three-hour divorce? On the possibility of {64} pregnancy, how can you be sure that this woman is not pregnant at any time up until the decree? I mean, what’s the difference between entering it now or any time? You could have pregnancy occur at any time before the decree becomes final, is that not right?

CHAIRMAN MERRILL: I’m sure it is right. [Laughter]

Is there any further debate?

MR. KARESH [S.C.]: What I want to do is to try to visualize the situation. The court finds that there has been a breakdown of the marriage. Of course it decrees a dissolution. Does the Act take into account who is responsible for that breakdown?

Let’s take a case of this kind. Here’s a husband who has fallen in love with another woman. That happens. [Laughter] He tells his wife, "I’m in love with Suzy," or whoever she may be. "I want a divorce."

She says, "I’m not going to give you one."

He says, "I’ll leave you."

Well, is that such a breakdown that if he, who is responsible for it, brings the action, she can hardly be in a position to say that the marriage hasn’t broken down? So it seems to me if that’s the sort of situation that the Act envisages, the marriage is terminable at will.

CHAIRMAN MERRILL: It is terminable on the basis that {65} it no longer is a viable institution, Commissioner Karesh. This is the view taken by the Committee and the Commissioners’ advisors.

[Calls for the question]

CHAIRMAN MERRILL: The question is called for.

MR. CUNNINGHAM [Baltimore, Md.]: Restate the motion.

CHAIRMAN MERRILL: The motion is that of Commissioner Braucher, and as the chair interprets it, it is to the effect that under 204 sub (1) no waiting period shall be provided. Is that correct, Commissioner Braucher?

MR. BRAUCHER [Mass.]: That’s correct.

MR. HELLRING [Newark, N. J.]: Mr. Chairman, may I be heard on that?

CHAIRMAN MERRILL: I will recognize Commissioner Hellring before we take the vote.

MR. HELLRING [N.J.]: I think you all know how deeply I favor the kind of changes which would be brought about in our divorce laws by the kind of statute we are talking about. On this issue raised by Bob Braucher’s motion, on which I support the position of the Committee — namely that a sixty-day requirement persist before the entry of a decree — I would add only this.

The statute as now drafted makes a substantial differentiation between situations where children of the marriage {66} exist and situations where no children of the marriage exist. The purpose of the sixty-day provision is to make it possible to deal with childless marriages under 201 or under 204 (2) a), and with marriages where there are children in a manner which gives the court some discretion.

The ascertainment of whether children exist is what gave rise to the suggestion on the part of the Committee that a sixty-day period before the entry of the decree was necessary. It may be that the Committee ought to consider shortening the sixty-day period to the original period of forty days, which the Committee had under consideration, but I urge you to vote against the motion in order to preserve properly the differentiation between circumstances where children do exist and children don’t exist in a given marriage under consideration.

I don’t think that the incidence of divorce based upon false adultery testimony will exist merely because the statute has in it a delay of sixty days prior to the entry of a decree. This doesn’t prevent people from filing a petition immediately after they decide that they want a divorce. They can file it immediately. It’s only that the final decree was may not be entered before the passage of sixty days; and as pointed out by Reporter Levy, the dockets in our country are such that it’s highly unlikely in any event that a decree could be {67} entered prior to the sixty-day period.

CHAIRMAN MERRILL: Are you ready for the question? Do you wish the question stated again?

[Calls of "No! No!"]

[The motion was put to a voice vote.]

CHAIRMAN MERRILL: The chair is in doubt.

[The motion was put to a standing vote.]

CHAIRMAN MERRILL: According to the count of the tellers, thirty-four voted "aye" and fifty voted "no".

MR. LANGROCK [Middlebury, Vt.]: Commissioner Merrill, Vermont may have at one time been the leader of divorce, but after hearing the discussion today I have become convinced from what I hear that we should move at this time to strike the six months’ residency requirement, and I would so move, and I would like to speak to it.

It seems to me the only basis for keeping six months’ residency requirement is to permit state hopping to obtain divorces, and the basic purpose of this Conference is to get uniform legislature in all the states, and I think in our initial draft we should at least promulgate the purpose that all states will eventually have this that state hopping will not be necessary, and that the six months becomes an absurdity on its face. {68}

CHAIRMAN MERRILL: If the chair understands Commissioner Langrock’s motion, he is reverting to 201, and he is moving — I think you are moving, Commissioner Langrock, to delete all of 201 (1) d), is that correct?

MR. LANGROCK [Vt.]: Well, perhaps 30 days for venue, but a six months’ period is out.

CHAIRMAN MERRILL: And not the 60 days with respect to the county or district?

MR. LANGROCK [Vt.]: That should go with it too, I’m afraid, at this point.

CHAIRMAN MERRILL: As the chair understands Commissioner Langrock’s motion, it is to delete all of Section 201 (1) d) lines 11 through 14 of the Printed Acts before us. Is that correct, Commissioner Langrock?

[Commissioner Langrock nodded his head in affirmation.]

MR. CUNNINGHAM [N. Dak.]: I think if that motion succeeds, it might mean that individual states that require a longer residence period might prevail, and you might be worse off than before, and therefore it might be wise to bracket that to solve the problem.

I had another point here that I wanted to make.

CHAIRMAN MERRILL: Will that be germane to this motion? {69}

MR. CUNNINGHAM [N. Dak.]: Indirectly, it is.

MR. LANGROCK [Vt.]: May I amend my motion, not to strike out all residency requirements, but to allow the Committee to put in a much shorter one — 30 days, or something else?

CHAIRMAN MERRILL: We have on the part of the mover an apparent modification of the motion. Would you mind trying to state the motion again?

MR. LANGROCK [Vt.]: I would like to strike out the six months’ requirement and leave it to the Committee to put in a shorter period of time which they feel is necessary to acquaint the person with the location, in effect, and my motion is simply to strike this and return it to the Committee. The six months is much too long.

CHAIRMAN MERRILL: The chair is going to interpret that motion as being a direction to the Committee to reconsider the length of time specified in subsection d) and to do so in the interest of shortening it. Is that satisfactory, Commissioner Langrock?

MR. LANGROCK [Vt.]: Yes.

MR. TOWNSEND [Ind.]: Mr. Chairman, could I ask this question of the staff? They may have an answer to it.

It seems to me that this is in grave constitutional doubt, in view of the recent welfare decision by the Supreme {70}Court. You are saying that a man who comes across a state line is denied the right to a divorce because he happened to cross a state line. This is a matter that ought to be taken into consideration here, and I raise the point, and I would certainly vote for the motion, because I think there is a grave constitutional question here.

CHAIRMAN MERRILL: Commissioner Townsend’s position is that the recent Welfare decision puts in peril all our Practice Acts having to do with length of residency. Is that correct, Commissioner Townsend?

MR. MILLIMET [N.H.]: Mr. Chairman, I’d like to hear from the Committee as to why you chose six months; and in that connection I’d like to ask the Committee if you considered the fact that we have in this large country several jurisdictions which have a shorter period, and if you have a long period, don’t you encourage migration to those states for the purpose of getting a divorce? I think Alabama has one day, and Nevada has six weeks, and there are a number of others, I believe.

CHAIRMAN MERRILL: The answer is that the Committee was aware of the existence of short-period states. The Committee felt that the great weight of authority in this country favored a longer period, and so it took that longer period, but it cut it as much as it deemed would receive general approbation. {71}

MR. THOMAS [Alexandria, Va.]: I’d like to speak on this, and speak in opposition to the motion.

I have had to shift gears in my mind, by instruction of Charlie Joiner, and take myself out of the role of being a pragmatist and place myself in the role of making certain social judgments in this area. I do find that trying not to consider what legislators will or will not think of certain things is a little difficult, and maybe a little bit of a mistake, but still, I can’t in this area of residency ignore the fact that, say, a 30 days’ residency in a serious proposal for a Uniform Divorce Law would be a serious mistake.

I point out to you that not only do you want to get the Act passed, and six months appears to be reasonable, but you are asking judges to make supposedly reasonably informed judgements on property matters possibly, and support matters and on custody and other things that I don’t think 30 days’ residency will give sufficient information for.

CHAIRMAN MERRILL: Any further debate?

MR. BURDICK [N.D.]: My comment is in some ways germane, if only to indicate that in North Dakota if the petitioner is serving in the military service of the United States in North Dakota, no residency period is required, and I think the Committee ought to consider that as to residency, whatever period {72} is determined — consider the fact that if the petitioner is serving in the military service in the State, no particular period of residence is required.

But I also speak in favor of the motion.

MR. BUERGER [N.Y.]: I rise to oppose the motion, for the reason that I think it’s too early in the consideration of this draft to give the Committee binding directions, I think that the Committee may well have, from the discussion we have had here, some indication that there is doubt about the desirability of the precise terms of sub d) of 201. I shall vote against the motion for that reason.

CHAIRMAN MERRILL: Will there be further debate? If not, are you ready for the question?

[The question was called for.]

CHAIRMAN MERRILL: The motion is that Section 201 sub (1) sub d) be reconsidered by the Committee with a view to shortening the period of residence required. Is that satisfactory, Commissioner Langrock?

[Mr. Langrock nodded his head in affirmation.]

CHAIRMAN MERRILL: You have heard the motion.

[The motion was put to a voice vote.]

CHAIRMAN MERRILL: The chair again is in doubt. I might as well have called upon you to rise in the first place. {73}

[The motion was put to a standing vote.]

CHAIRMAN MERRILL: The chair and the tellers find 48 in the affirmative and 45 in the negative, and the motion carries. The Committee will reconsider, and do its best to come up with a redraft. Reporter Levy would like to comment.

MR. LEVY [Reporter - Minn.]: I would simply like to say a word about both votes which doesn’t say anything about either of them on the merits, but I think it’s no secret from most of us that the Committee has been trying to do what it thinks best, but it has also been aware that it faces the task of presenting to this floor for the first time what some might consider to be path-breaking, very new, and very different kinds of provisions respecting divorce and the grounds for divorce.

I suspect that the votes, both of them, regardless of the way they went, and the indication that both of them had about some strong sentiment on the floor in certain directions with respect to the Uniform Marriage and Divorce Act, will be very useful to the Committee and beneficial to it, regardless of the votes in each case.

MR. BUSH [Phoenix, Az.]: My remarks, if the chair please, are directed to 204 (2) b) and the last sentence of it, lines 28 through 30. It reads: "If the court denies the petition, a proceeding for dissolution may be commenced again six months {74} after the date of denial."

The implication is that one can’t recommence prior to that, although it doesn’t specifically say that. This troubles me.

It simply occurs to me that it may well be that on the particular day the court denies, there would be a basis for a finding that the marriage is not irretrievably broken, but that certainly doesn’t mean that it couldn’t be hopelessly and irretrievably broken 30 days later. In other words, I think you can clearly have a situation — and this doesn’t seem to indicate it — that nothing could be done.

Really, I wonder if you could tell us why the parties shouldn’t be able to come in and seek dissolution, if something happens that would justify it.

CHAIRMAN MERRILL: The primary occasion for placing this sentence in the draft, Commissioner, was a desire to avoid any inference that a denial would be res adjudicata from now on out. And with respect to the six months’ period, the Committee in its discretion also took the view that they ought not to be in there bothering the court every other day, and I would suggest also in that connection that if you are speaking in terms of irretrievable breakage, and irretrievable breakage does occur, to use your illustration, when it’s really irretrievable {75} it will be there six months or five months thereafter.

MR. BUSH [Ariz.]: That may be, but I can conceive of situations where the husband may be attacking the wife. There may be violence. There may be all kinds of things that occur; and yet apparently there is nothing she can do about commencing this action again.

CHAIRMAN MERRILL: There are, of course, various other methods open to her to protect herself.

MR. CUNNINGHAM [N. Dak.]: I think it might be a good idea to make divorce easier to obtain than to marry in the first place

CHAIRMAN MERRILL: May I say parenthetically that the Committee is going to explore the problem of marriage also.

MR. CUNNINGHAM [N. Dak.]: But I gather from this nonadversary type of provision that the marriage is irretrievably broken and there is a sort of an equivocal response on the part of the other party, falling short of a denial — must the judge decide that the marriage is irretrievably broken? Will there be a hearing of any kind? Will testimony be taken, or is all this to be done on paper?

CHAIRMAN MERRILL: There will, of course, be a hearing with respect to the other matters which the court must deal {76} with before entering a decree of dissolution. If I envisage the inquiry correctly, there will not be in the situation mentioned an inquiry whether there is a breakdown. In other words, this will result in a finding of breakdown.

MR. CUNNINGHAM [N. Dak.]: Well, my thought is: Can the judge find that both parties, or one of them, are lying, and then refuse to grant a divorce where there are no children?

CHAIRMAN MERRILL: It was the intention not to open the door to the judge who says, "I don’t think this ought to be the law."

Now, that, in essence, I suppose is the judge you are thinking of, because it is extremely unlikely that there will be one who lies, either directly, or by silence, if it is realized that this results in the marriage not breaking down. Apparently he wants the marriage to be terminated. If he doesn’t want the marriage to be terminated, he’d certainly be in there howling about it.

MR. CUNNINGHAM [N. Dak.]: How about the serviceman overseas in Vietnam whose wife back home wants to get married to somebody else, and his response is not as good as it would have been had he been able to appear in court? I can see where the wife would have an advantage over the serviceman husband. The Soldiers’ and Sailors’ Civil Relief Act comes into that, but {77} generally the average soldier can’t take advantage of that in the context where he is, because by the time he finds out about it, the situation is so bad that he can’t retrieve it, particularly in domestic relations matters.

CHAIRMAN MERRILL: I think as far as the failure to deny is concerned he doesn’t have to enter his denial, I would take it, until the time provided by the Soldiers’ and Sailors’ Relief Act.

MR. CUNNINGHAM [N. Dak.]: Then the purpose of the Act is gone.

CHAIRMAN MERRILL: I will now recognize Commissioner Sullivan for a motion.

MR. SULLIVAN [Missoula, Mont.]: I move that the Committee of the Whole rise, report that it has had under consideration the Uniform Marriage and Divorce Act, that it has made progress, and asks leave to sit again at this session of the Conference.

CHAIRMAN MERRILL: You have heard the motion.

[The motion was put to a vote and was carried.]

* * * * * * * * *

Mr. Maurice H. Merrill, of Oklahoma, presiding;

Mr. Floyd R. Gibson, of Missouri, presenting the Law.

CHAIRMAN MERRILL: The Committee of the Whole will be in order, and the chair will ask Commissioner Gibson to continue with the reading of the Uniform Divorce and Marriage Law draft at the point where we closed it yesterday.

MR .SULLIVAN [Boise, Id.]: Mr. Chairman, there is a point I would like to inquire about from the Committee. I did not raise it yesterday afternoon, because of the shortness of time, but I would like to refer briefly to a problem that was raised by Commissioner Burdick on Section 204, particularly in (2).

It seems to me that if there is merit in subsection (2) a), where there are no children, that the divorce will be granted upon the oath of either party that the marriage is irretrievably broken, then in sub b) in line 16 there should be added the words "minor children". I cannot quite understand why, if one of the parties testifies under oath that the marriage is irretrievably broken, they should then be required to go through all the procedures of sub b) merely because they happen to have a married daughter who is about 30 years old. I cannot see the point of that. I can understand it with minor children, but where the children are adults, sub a) should apply, and I believe you made some response to that yesterday, Mr. Chairman, but either I didn’t understand it or I found it unsatisfactory. {79}

CHAIRMAN MERRILL: Thank you, Commissioner Sullivan. The problem, of course, was raised yesterday. It has been raised before the Committee. The current proposal of the Committee has been to take care of that problem through the definition of "child" and "children", which will be written into the definition part of the Act. This, however, is entirely fluid at this time. [Conferring]

Some of the Committee feel that we committed ourselves further yesterday than was my recollection as to form. My own reaction was that we reserved the power to deal with this in the definitions, or in any other way that seemed appropriate. We do have more of a problem than simply minority, Commissioner Sullivan, because there may be children who are unable to care for themselves or who need providing for, and the intention is to reserve to the court, if you will, power to deal with whatever is necessary to safeguard the interests of those persons, and we certainly are advertent to your problem, and we are going to deal with it in the redraft.

MR. CUNNINGHAM (Baltimore, Md.): Mr. Chairman, before you leave 204 I think there is a conflict of policy here that I’d at least like to hear the Committee comment on.

That is, there are two basic factors in 204. One is whether the parties consent, the husband and wife consent. The {80} other is whether or not there are children — and let’s say "minor children" to keep it simple.

Now, it seems to me that in sub (2) you have recognized that there may be a state interest apart from the parties where there are minor children. I don’t see the policy behind waiving that state interest, if you will, in the situations where the parties agree that the marriage is over.

In other words if you say in (2) a) that you can get a divorce if only one party wants it, in effect, because of (2) a), but yet say, "There is a state interest if there are children and there is a disagreement between the parties," I don’t quite see how you make the step: Let’s forget about the state interest where there are children,

but both parties agree to dissolution.

CHAIRMAN MERRILL: Thank you Commissioner. The view of the Committee, if I have correctly apprehended that view as its Chairman, is that if there is agreement that this marriage has gone kaput, has definitely gone kaput, and the children are going to be worse off if the marriage is continued, if there is an attempt at continued salvage of it against the will of the parties — both parties — than there would be if we just recognized that and took care of the interests of the children through the powers of the court conferred by other {81} provisions in the Act — that’s one part of it.

On the other hand, where there is not this agreement that everything is off, where one party, whether operating under delusions of hope or operating under a sound evaluation of the nature of his or her spouse’s judgment on the spur of the moment that says, "I think we can work this thing out for the sake of the children, that we can really re-establish a home in which the children will have the proper sort of upbringing and surroundings, and all that"— that under those circumstances there ought to be given a reasonable time for working out and for bringing around a reconciliation.

Now, that is basically — I think I am correct — the Committee’s thought in this differentiation as to this provision.

MR. CUNNINGHAM [Md.]: If that is the policy, I think you want to think very carefully about 204 (1), where the party fails to appear and deny. Where there are children, and you have a situation where the court really doesn’t know what the attitude of the person is, it seems to me there ought to be something more than merely failure to appear and deny, before you go ahead, where there are children.

CHAIRMAN MERRILL: Of course, Commissioner, here the problem in large measure is that of the person who has run off, and you don’t know where he is, and you can’t [get] him to come back {82} and do anything.

MR. CUNNINGHAM [Md..]: I think there may be very subtle reasons why a person doesn’t come in and deny.

CHAIRMAN MERRILL: I agree. We have that problem. The question is how best to adjust to that problem.

MR. STRAUCH [Memphis, Tenn.]: As I understand Section 204 (1), where there is a consentual agreement that the marriage is irretrievably broken and there are no children, it is mandatory that the court so find and grant a decree. I come from a jurisdiction where this matter is more or less in the discretion of the court, and many times in these types of cases there are relevant factors that, even though young and immature parties may agree that the marriage is irretrievably lost or broken — that the court sometimes in its discretion thinks otherwise, and is proved right. Many times before a decree is granted we ask: Are there possibilities of reconciliation? They say there are not, and we think there are, and we are proved right. I can think of many cases, if it were mandatory that I make a decree of irretrievable breakdown, where two weeks later I am proven right.

CHAIRMAN MERRILL: The Committee at present feels that this is the policy that should be followed.

MR. JESTRAB [Williston, N. Dak.]: Mr. Chairman, I was going to just {83} inquire: Did I correctly understand that it’s the position of the Committee that the state — the public — has no interest in this marriage at all, and that, if they get married, they can dissolve it by contract any time they want to where there are no children? Is that the position?

CHAIRMAN MERRILL: With respect to that particular issue, Commissioner Jestrab. Now, of course, there are other interests which the state has even in that type of marriage; namely, proper provision for the division of property, the proper provision for the maintenance of one of the spouses, or perhaps for both of them, if you can think of certain situations that may arise. We preserve the interest of the state there, and we do feel that that is the basic interest of society with respect to the situation of the parties in that sort of a situation.

MR. JESTRAB [N. Dak.]: All right, now. You have stated that that’s the policy. Now, I would expect you can probably tell us how you have adopted that policy.

CHAIRMAN MERRILL: That is a matter that, in detail, would probably take us into next week. I’ll try to summarize it as best I can.

As you know, Commissioner, from our statement yesterday, we have had the advice — the discussion — from and the co-operation {84} of large segments of people who have had occasion to deal with this general question of the marriage status, partly as practitioners in family law, partly as sociologists and psychiatrists, and this, that, and the other, and all the various professions that do have to deal with counseling and with care and with advising and with the cure, if you please, of the sick, and so on, and we have had all that advice, and we have had it at great length, and the sum and substance of it all is that when you get a situation in which even one of the parties is determined that the marriage shall no longer persist, "that it has become intolerable for me to remain in this state, and I will not remain" — when you reach that state, it is really for the best interests of society to say, "We will wipe the slate clean. We will dissolve this marriage, and the legal consequences that result from a continuing state of marriage, and we will clear it up," and in varying form, as you no doubt have observed looking at the draft as a whole.

We do give that policy effect, but we vary the way in which the policy is to be applied and to be carried out, according to the question of recognition by both parties that this state has arrived at, or the recognition has been arrived at, perhaps, by only one and not the other, and also as to whether there are dependents whose interests must be taken {85} into account and provisions made for them by the court.

We have tried to deal with this in terms of these varying situations, but the basic idea throughout — and I do not think it is properly phrased, if you don’t mind my saying so, in terms of agreement or consent by the parties, "We’re through" — this is automatic. It’s rather a recognition by society of the situation that develops from that attitude on the part of the parties to the marriage, and this basically is the theory on which the statute is drawn.

MR. CALLOW [Waukesha, Wisc.]: Mr. Chairman, could I respond?

I think that the Committee in its deliberations, Commissioner Jestrab — and others — that we sensed from those who advised us that the right of the individual to be married or not to be married is an individual right that he is entitled to express. And it was upon this premise, in great measure, I think, that this conclusion that it was desirable to permit people to leave marriage upon their own consent was reached.

I must admit that this was a somewhat novel approach to me, but I have adjusted to it over the year that we have been meeting. I would tell you, too, that it was to take some of the heat out of these relationships, and those of us who are involved in divorce work, either as judges or practitioners, find that if we can have those people leave the courtroom with {86} other than a terribly hostile attitude toward each other, there has been a great deal accomplished. They will still have to work together to rear these children. They will still have to recognize that there is a family relationship, even though it is not under the same roof. They will have visitation problems.

So I think we are taking the heat out of divorce, and also recognizing the right of the individual to get out of marriage, as long as the children’s interests are provided for, and only in the subsection that covers the situation where there are children have we left the judge’s discretion to dismiss the petition, or to suggest that the parties seek counseling, where one points out to the judge that the marriage is not irretrievably broken down.

So, really, we have recognized the right of individuals not to stay married, in reaching this decision.

MR. JESTRAB [N.D.]: I would like to ask one more question, if I may, Mr. Chairman. The next question is — and it’s my last question — what about the point that was raised by the Commissioner from Tennessee. Are you depriving the courts of the right to make a judgment that this state of the relationship has arrived? Is that what you are doing?

CHAIRMAN MERRILL: Commissioner Jestrab, I think I can best respond to that by relating a story from my own practice {87} and recalling an afternoon when an entire session was spent in argument, and at the close of that argument the judge said: "Mr. Merrill, your authorities are all in point, and they support your position, and they arise under statutes which are exactly the same as ours, and I agree that opposing counsel has brought nothing to rebut those authorities; but they are not Oklahoma authorities. We have nothing. And I just don’t think that ought to be the law."

And it wasn’t the law that afternoon in the Court of Common Pleas of Tulsa County.

Now, we have to face up to the fact that the human element exists in judges as it does in other people, and if you have a judge who just doesn’t sympathize with this general concept, you have to give him a rule by which he must abide. If you give him the loophole of saying, "It doesn’t seem to me that there is a breakdown here," he can go through that hole. This is the problem with which we have to deal.

MR. WILBERT [Pittsburg, Kans.]: Mr. Chairman, I just noticed that the title of this entire law is Uniform Marriage and Divorce Law. I understand that you are just in the divorce area.

CHAIRMAN MERRILL: That is right, sir.

MR. WILBERT [Kans.]: I’d like to make a suggestion, though, as a matter of policy for the benefit of the Reporters, since {88} it’s going to be Uniform Marriage and Divorce, that you consider a policy of not allowing yourselves to be hypocritical.

The reason I say that is that unless, when the preacher ties you together, you change the old "for better, for worse, for richer, for poorer, in sickness and in health," and all that thing — "until death do us part" — if you are not going to be hypocritical about it, then you want to have a new streamlined oath; say, "until this marriage is irretrievably broken." [Laughter]

CHAIRMAN MERRILL: The Committee will take that under advisement. Are there any other comments?

MR. LANGROCK [Middlebury, Vt.]: I’d like to comment, Commissioner Merrill, on Commissioner Jestrab’s comments. I get the feeling that depriving the court of jurisdiction when the two parties are in agreement is a new one, but in reality that exists today if you have money, and the only people who are being deprived of this at the present time are people in the low income brackets who can’t go to Mexico or other states.

So I don’t find it so shocking as a practitioner, in this day and age.

CHAIRMAN MERRILL: Commissioner, the Committee couldn’t be more in agreement. Are there any other comments?

MR. TOWNSEND [Indianapolis, Ind.]: Could I make a suggestion here for {89} the Committee to take under consideration?

To call a person a bastard is, I think, regarded as sort of unseemly these days.

CHAIRMAN MERRILL: I could tell you something about that. [Laughter]

MR. TOWNSEND [Ind.]: And we have just eliminated the word, at least in substantial part, under the new Probate Code. Divorce also is a naughty word, and it carries connotations that I think are evil, and I would think that you might work on some new term other than divorce.

Now, children live in fear of this. Women who get divorced live in fear of the term divorce. It has become a naughty word, and it would seem to me that the Commission might well consider some new term here. I have some ideas, but I won’t burden you with them.

CHAIRMAN MERRILL: Of course, so far as the phraseology of the statute is concerned, we have used the word "dissolution." Perhaps you are suggesting that the Committee be restyled. That’s for the Executive Committee to consider.

MR. CUNNINGHAM [N. Dak.]: Well, if that’s the policy, this may be a good idea. I don’t know. It’s going back to what Roman law had, and that may be a good idea, but I question the manner in which this thing is going to be implemented. {90} There is no point in having any papers filed or any hearing, or anything of this sort, if all you need to do is have an agreement initially between the parties that the marriage is done.

It seems to me that if you are going to make a new stab in a new direction and get away from fault concepts — with which I agree — and get away from the adversary character of the procedure, why don’t you take advantage of the continental system and make this an inquisitorial type of test, just to be satisfied that the parties are really sincere in wanting this divorce, that this consent is honest, and then empower the judge to make an investigation, to call the parties, if they are available to him, and to make the decision the best way he can that, yes, these parties do feel this way?

And if he has that finding, then I see no quarrel with the mandatory requirement; but here you have no need for any type of investigation at all. The parties can just submit a piece of paper saying they agree, and that’s it. The judge can only then rubber stamp it. There’s no need for further inquiry at all. I think some built-in inquiry system should be incorporated into it.

CHAIRMAN MERRILL: Commissioner, as the Committee views the matter, while this is a basic societal interest, {91} there are other societal interests which need to be dealt with in the dissolution of even the childless marriage by the common consent of the parties, and we have incorporated the means for dealing with those interests judicially in the provisions of Section 201. And we do feel that there is a judicial function to be performed in that connection.

Any other comments or questions?

MR. MILLIMET [Manchester, N.H.]: Has the Committee given any thought to making it harder to get married?

CHAIRMAN MERRILL: That is in the background of our thinking, Commissioner Millimet. We are going to deal with the problem of marriage in that part of the Act.

If there are no further comments, Judge Gibson will proceed.

MR. GIBSON [Kansas City, Mo.]: We will proceed with the reading of Section 205.

CHAIRMAN MERRILL: Is there comment? Discussion?

MR. CALLOW [Wisc.]: Mr. Chairman, at this point, since we are at the end of this reading of this portion, I’m wondering, now that Mr. Braucher has returned, whether or not he would like to renew the motion that he withdrew, I guess, in order that we might have the sense of the house with regard to the philosophy that has been incorporated in this.

CHAIRMAN MERRILL: Thank you Commissioner Callow.

MR. BRAUCHER [Cambridge, Mass.]: Mr. Chairman, I’m a little bit in difficulty, because the meeting of the Executive Committee overlapped with this discussion, and I may be out of order here in some way, but . . .

CHAIRMAN MERRILL: You are in order, Commissioner.

MR. BRAUCHER [Mass.]: I would like to renew my motion of yesterday, which was that it is the present sense of the house that we approve the test of the irretrievable breakdown of the marriage as the sole criterion, as opposed to the list of false-type causes for divorce. That’s to be understood, of course, in the light of this draft, with some of the specifics that have been added to what will be deemed to be an irretrievable {93} breakdown.

CHAIRMAN MERRILL: You have heard the motion. Is there discussion?

[No one responded.]

There being no Commissioner who desires to be heard, the chair will put the motion, which is that it is the sense of the house that the Committee should proceed on the basis of the philosophy indicated by Commissioner Braucher, the basic position that irretrievable breakdown be the basis for the dissolution of marriage. Are you ready for the question?

[Upon calls for the question the motion was put to a voice vote and was carried.]

CHAIRMAN MERRILL: The chair will now recognize Commissioner Sullivan.

MR. SULLIVAN [Missoula, Mont.]: Mr. Chairman, I move that the Committee of the Whole rise, report that it has had under consideration the Uniform Marriage and Divorce Law, that it has made progress, and asks leave to sit again at a future meeting of the Conference.

CHAIRMAN MERRILL: You have heard the motion.

[The motion was put to a vote and was carried.]

* * * * * * * * *

Proceedings in the Committee of the Whole

Uniform Marriage and Divorce Act

Colony Motor Hotel, Clayton, Missouri

Saturday Morning, August 1, 1970

Mr. Harold E. Read of Connecticut presiding;

Mr. Floyd R. Gibson of Missouri presenting the Act.

CHAIRMAN READ: The Committee of the Whole will please be in order.

Chairman Merrill will give you some introductory remarks, to be followed by Commissioner Gibson in reading the Act.

We will start off with a problem I want to work very hard on. I remind you that we’re supposed to be talking substance and policy at this meeting. Pure drafting suggestions, style suggestions, often involve some aspect of substance, but I hope you will make every effort to take your suggestions of style and drafting, deliver them to the Committee in writing, so that we don’t take a lot of time on them on the floor. It’s going to be very difficult to get through this Act, and the President’s instructions are very firm that we are going to get through it promptly. Therefore, if you are in doubt as to whether a drafting suggestion involves some substance, why don’t you submit it in writing anyhow, and the Committee will consider it and come back to you for advice on the matter of substance {2} if there seems to be one.

Would you also be sure to state you name when you rise, both for the benefit of the stenographer and for my benefit, because I can’t see any farther than Bert can.

MR. MERRILL [Norman, Okla.]: Thank you.

Sitting back there, I was conscious of quite a reverberation, an echo. I’m going to introduce an experiment, if I may. Can I be heard this way, without resort to the mike? [Calls of "Yes!"] All right, let’s forget it. At least I’m going to forget it.

There are two or three things that I need to call to your attention. The first is that we have worked very hard this year. We have held meetings in New Orleans — in Atlanta. We had a Section meeting in Chicago. We had a pre-Conference Section meeting here all day yesterday, and I want to say for the benefit of President Jenner that I think Section F had advance word of what his remarks were going to be about the duty and obligation of a Section with respect to going over a Uniform Act. They were most industrious. They were also most fertile in their suggestions, and we have certainly benefitted tremendously from the cooperation of the Section.

As a result of that, not just of yesterday but as a result of the work during the whole year, we have had considerable {3} revamping of particular phraseologies, and the result is that we will be working this morning from a draft which is not in your books, which represents what we finally came up with at the conclusion of the meeting of Section F last night. That has been laid on your desks, and so if you will refer to that as we go through.

And one other thing that I should all to your attention is the change in the title of the Act. As you will note, it is now the Uniform Marriage and Divorce Act. Our change has resulted from a growing conviction, as we held these meetings through the year, that no matter what we said about the shift in emphasis from divorce to the idea of dissolution, people were still going to be talking about divorce. They have been using that term in our polity for centuries, and you just are not going to get the popular mind shifted from divorce to dissolution, and we might just as well face it and call it a Divorce Act with respect to that particular portion of the Act.

The second matter which I shall call to your attention — it will come out more specifically through the discussion, but

I think you ought to have it in mind as you approach the discussion — is that with respect to the situation where both parties are either in accord with the desire for a divorce or there is no contest, we have taken care to assure that the approach {4} to the court’s function is one of a judicial nature; that we have not transformed the court into a mere registrar of a consent divorce. This is not to say that there may not be shortened procedures, and certainly the elimination of the controversial and backbiting sort of thing that may be stimulated by some of the more specific grounds for divorce that have prevailed under the old order — we hope we are getting away from those — but we are also meeting the objection which has come from various areas and which has resulted in the two major State Acts involving divorce reform lately, and the acceptance of the irretrievable breakdown concept has resulted, however, in each of those cases in a statute providing for a judicial approach to the dissolution of marriage, no matter what the status of the parties may be. It’s phrased in terms of judicial control and judicial discretion in the entry of the finding of irretrievable breakdown. This has been true in California, and it’s true in the new act in Iowa, and because of this and other matters which have come to our attention through the year, we have decided that it would be better from the stand point of public appreciation and legislative approval to make that shift, and this is what we have provided for in the draft.

Now, with that introduction, I will ask Judge Gibson of our Committee to serve as the reader in the beginning — we will {5} spell him if he needs assistance — and I would like to reemphasize the chair’s announcement: Will you please identity yourself by name and state? This greatly aids the reporter. It also is an aid to your fellow Commissioners. Judge Gibson!

CHAIRMAN READ: Before Judge Gibson starts, I would like to recognize Commissioner Fred Hanson for the purpose of making some preliminary remarks from the floor.

Mr. F. T. HANSON [McCook, Nebr.]: Mr. Chairman, I address myself to the general policy of the Act, so far as it pertains to divorce. It seems to me to do justice between parties without regard to fault is an impossibility. I wonder what’s to become of the maxim that no man shall profit by his own wrong — or woman either, for that matter.

The proponents of this Act say that the divorce problem is different because there is fault on both sides; but, humans being what they are, there is fault on both sides in every human relationship. The faults, however, are far from equal. No secular society can be operated on the theory that all faults are equal. Adultery is more serious than abusive language, just as murder is more serious than larceny, although I understand that in the old days on the border between Arkansas and Missouri — and I forget which side of the line it was — they would fine you for killing a man, and hang you for stealing a {6} mule. [Laughter] But I understand that this has been corrected. If you want to know more about it, Judge Gibson or Commissioner Barrett can enlighten you.

It’s an astonishing thing how often opposites of conduct attract; and this results in inequalities of faults. When this occurs, to disregard the inequality of fault, is to blindfold justice. Oregon recognizes the inequality of fault, but endows it with weightlessness by granting divorce to the party most at fault if the other is not seeking it or is opposing the divorce.

The theory that the state has an interest in the stability of the family is unquestionably wise, but under this law it has no more effect than a particular judge chooses to give it. The concepts that implement the theory of the state’s interest — the requirement of definite grounds, collaboration and defenses such as collusion — all are scrapped. In their place we have new terms that defy definition: "irretrievable breakdown" or "irreconcilable differences." Decisions are to be made on a conclusion, and not on basic facts.

According to a comment in Prospectus magazine for May, it says that California has conciliation procedures and trained staff workers who become thoroughly familiar with the rocky marriages. This may compensate to some extent for the {7} indefiniteness of the grounds, but this Act provides only that the judge may suggest to the parties that they seek counseling. If the court is to rely on conclusions instead of factual evidence, the divorce proceeding becomes more of an administrative than of a judicial process. Morever, providing comparable machinery to that which they have in California may very well be impracticable in sparsely populated areas.

California Senator James A. Hayes, the chief architect of the California law, says in an article in the last American Bar Association Journal that discarding the traditional grounds, collaboration, and defenses, and suppressing evidence of specific acts, as they do in California, will reduce the acrimony between the parties and the trauma to the children, thus making divorce a less bitter pill; but in the typical case reaching the filing stage, everything will have been said. The children will know most of what is to come out in the pleadings or the evidence, and, typically, will learn little or nothing more from these. The real trauma to the children is the permanent separation of the parents. Therefore, the anticipated benefits are illusory. Injury to the innocent cannot be eliminated here any more than it can in criminal law enforcement.

But when the divorce pill is sugar-coated, inevitably {8} more people will take it, and more children will be victims of the trauma. Senator Hayes says the sugar coat will reduce the divorce rate. Now, I am old enough to remember when pills were not sugar-coated. The coating was added to pills in order that they would be taken more readily, and I personally know that it works. Senator Hayes’ premise supports the opposite of his conclusion. It will not reduce the divorce rate; it will increase it.

Advocates of easy divorce say: How cruel it is to keep people tied together when they are not happy! It’s true that all restraints are in a sense cruel, but without the sturdy fence the bawling cattle in the pasture would be destroying themselves in the green corn and damp alfalfa. And so it is with the restraints on divorce. [Laughter]

Acts such as this one that is proposed discard all the time-tested experience of the past. They destroy the establishment, so far as divorce is concerned. They offer in its place vague terms, "irretrievable breakdown" or "irreconcilable differences," grounds which are in themselves a conclusion and not a basic fact. If every state should enact such a uniform law as is proposed, when would the content of these fuzzy terms cease to vary, not only from state to state but from judge to judge? The proposed law actually is in the {9} main stream of rebellion against accepted norms, a rebellion that threatens to destroy the institutions of our country.

Now, there is a field for uniformity where we may labor to bring together the best wisdom that has been distilled in 50 legislative laboratories. If so doubtful an experiment as this is to be tried, let it be in some of the venturesome states. California and Oregon and perhaps others have embarked upon it already. Until a large body of experience is available, let it rest there. We should not be among the first by whom the new is tried.

C. S. Lewis, the English author, just before his death wrote an article entitled: "We Have No Right to Happiness," which was published in The Saturday Evening Post in 1963. It is an interesting analysis of the way some people think about divorce, and it will also illustrate a case in which injustice would be done under this type of law.

He and some neighbors had been discussing a thing that had happened in their community. Mr. A had gotten a divorce from his wife, in order to marry Mrs. B, who had won a divorce from her husband in order to marry Mr. A. One of the group, a woman named Clare, remarked: After all, they had a right to happiness.

Now, there is no doubt whatever that Mr. A and Mrs. B {10} were very much in love, and if they continued to be in love and nothing happened to their finances, and their eyes did not rove as they had during their previous marriages, they could expect to be happy. It’s equally clear that they were not happy with their old partners. Mrs. B had adored Mr. B when they were first married, but he got badly used up in the war. It was known that he had lost his job, and it was suspected that he had lost his virility. Life with him was no longer her bowl of cherries. [Laughter]

As to the first Mrs. A, she had lost all her bounce and beauty. Some have said that this was due to the rigors of bearing and rearing Mr. A’s children and nursing Mr. A himself through the long illness that overshadowed the early part of their marriage. Now, you must not think that Mr. A was the kind of a man who throws away a spouse as he would an orange peel that he has sucked dry. He was deeply shocked and grieved by the subsequent suicide of Mrs. A. We know that he was, because he told us so himself.

As I thought about Clare’s remark afterwards, it made no more sense to me than the right to have a millionaire father or good weather for a picnic or to have your life be a bowl of cherries.

The ancestry of Clare’s maxim is an august one. Our {11} fathers wrote of the right to the pursuit of happiness. What they meant by the phrase is not entirely clear, but it is very clear what they did not mean. They did not mean the right to pursue happiness by any and all means — murder, rape, robbery, and so forth, nor even by the kind of wanton disregard for solemn vows, deep obligations of gratitude, and common humanity exhibited by Mr. A, for example, toward his first wife.

Now, Clare was a leftist politically, and she was also a teetotaler. She would not have excused the man-eating tycoon on the ground that ruthlessly getting wealth made him happy, nor would she have excused the lush because he was happy only when drunk. There were several women in the neighborhood who had been heard to say, in substance, that boxing Clare’s ears would have augmented their happiness materially; but would Clare have excused them had they exercised their right to happiness in this way?

Yet Clare’s maxim can be reconciled with these philosophies of hers. Her remark related only to sexual happiness. Women like Clare never talk about any other kind. Here I may be getting myself into trouble with the ladies on the Committee and probably those in the Family Law Section; the Chairman is now a woman. I may be getting myself into the same kind of trouble that Mr. Humphrey got into with Congresswoman Patsy {12} Mink the other day, but I’m not going to take time to go into this part of it. However, Mr. Lewis also makes a very good case for the proposition that where there is a permissive attitude toward divorce, it is the women who are the big losers.

So Clare and those whose thinking parallels hers are allowing to the sexual impulse a preposterous privilege, a privilege we would not right now at least think of extending to other natural impulses. All must be controlled. The instinct for self-preservation, given free reign, becomes cowardice; the acquisitive instinct becomes avarice, or worse.

Maybe we are on the way to allowing unwarranted privilege in other areas. I haven’t heard or read very much lately about punishment for arson or malicious destruction of property — that is, when it’s done on the pretext that you are protesting against something or other, and it matters very little what.

Now, Mr. Lewis’ article left me wondering about one point. How did Mr. A and Mrs. B get their divorces? This article was written in 1963. Under the proposed uniform law, or the law of California or the law of Oregon, getting that divorce would have been no more trouble than good coffee is to Mrs. Olson. [Laughter]

Now, were these discarded spouses too shocked by the {13} perfidy of Mr. A and Mrs. B to even lift a finger? Mrs. A’s subsequent suicide would indicate that she was. Or were these divorces simply the result of miscarriages of justice, such as do occur under the traditional divorce laws? A no-fault law would prevent such miscarriages, by legalized abortion.

Now, I deny being a reactionary. I served on the Uniform Probate Code Committee from 1962 throughout its life. I made no resistance to the drastic changes that that law would make in the law of my State, even though it was generally thought by many — including prominent attorneys from my State — that it would materially reduce the income from the kind of practice I enjoy. This was because I saw in that law a definite and clear benefit to the public, and there was a long and favorable experience with the basic theory of that law in Washington and Texas. So I deny that I’m a reactionary. It’s just that I have a conviction that this largely academic proposal is not as superior to the experience of the past as the revolutionary changes it makes would indicate, but is, in fact, far inferior.

To make the record perfectly clear, I am opposed to the Act on the theory on which it is now drawn. [Laughter and applause.]

CHAIRMAN READ: Thank you, Commissioner. None of us {14} doubt that we are dealing with a controversial and emotional subject. I think it helps to have you put it all in context to start with.

Commissioner Gibson will read starting with the first of the substitute pages on your desk.

MR. GIBSON: We will start with Section 101:

MR. HARTNETT [Dela.]: I hate to stop you at the very beginning, but I question whether it’s wise to include both marriage and divorce in the same Act. I’m sure you have discussed it, but in my opinion, as we can see from the comments already made, the divorce part is going to be extremely controversial, and probably extremely difficult to get enacted in many states, whereas I can envision that the marriage part will not be as controversial, and probably be relatively easy to have enacted.

Also, I know from experience that the people who are interested in the marriage part are not the same people who are interested in the divorce part. Interest in the proposed Uniform Marriage Act, as I see it based on experience in my state, where we recently revised the marriage law, will be from parents of underage children who are very interested in whether their children can marry without their consent or not, and {15} those parents will have no concern whatsoever about the divorce part of this.

On the other hand, there will be many people very interested — and perhaps emotionally so — who will be interested in the divorce part, who will not be interested in the marriage part; and I think that when they all get down to their lobbying against the bill, you are going to have a lot of trouble with it.

CHAIRMAN READ: Thank you, Commissioner.

MR. GIBSON: [Reading]

MR. JENNER [Chicago, Ill.]: I have an inquiry, Mr. Chairman. I inquire whether that language in lines 2 and 3, "This Act shall be liberally construed and applied to promote its underlying purposes" — is that language that the Conference adopted in Dallas as a change in that particular provision?

CHAIRMAN READ: I believe it is.

MR. JENNER [Ill.]: Mr. Chairman, I have the language now, I’m reading, and the new language is: "This Act shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this Act among those states which enact it."

And I suggest to you, Mr. Chairman, that in view of the action of the Conference, that subsection (a) be conformed to that.

CHAIRMAN READ: I believe the section that you are referring to is the next one, which is 103, and I suppose that technically we shouldn’t conform until Judge Burdick makes the {17} motion and we adopt the new format.

MR. BURDICK [N.D.]: I have no motion to make. [Laughter]

CHAIRMAN READ: We’ll accept a comment.

MR. BURDICK [N.D.]: I was wondering if the Committee overlooked reference to annulment. I understand there are provisions in the Act now dealing with annulment, and I wonder if section (5) shouldn’t be "legal dissolution and annulment".

CHAIRMAN READ [Conn.]: The Committee will take note of that. I think they are thinking that annulment is a form of legal dissolution.

MR. BURDICK [N.D.]: I don’t think so. I think dissolution presumes a legal marriage and annulment does not.

MR. VON HERZEN [Los Angeles, Calif.]: Mr. Chairman, I have some philosophical difficulty with the inclusion of marriage and divorce in the same statute, and I think that psychologically and philosophically this is bad. I think it’s bad law. That’s the way it strikes me now, and I just would like to place a question to the Committee, whether it might be possible at a little later stage in the proceedings, perhaps to consider the possibility of divorcing the divorce end of the law from the marriage end of the law and placing this in two separate Uniform Acts. Is that a possibility, or are we at a point where this can no longer be considered? {18}

CHAIRMAN READ: Anything you bring up can be considered, I would take it.

MR. VON HERZEN [Calif.]: Well, I’m not ready to make that motion, because the idea of putting these two together, and the effects that this will have with respect both to passage of the law and with respect to its effect on the public really hasn’t been fully thought out by me, and I would like to have the privilege of presenting this, perhaps, at a little later point in our meeting.

MR. MERRILL [Okla.]: May the chair make one comment? Because I think that will be desirable as a background for your reaction to Commissioner Von Herzen’s suggestion, and perhaps for his consideration also; and that is this.

The Committee and the Conference are acting under the terms of grants which were made to us by the Department of Health, Education and Welfare and by the Ford Foundation, and the terms of those grants were that we should research and undertake the preparation of a Code of Marriage and Divorce Law. I may not be exactly quoting the terms of the grant, but this in effect was the purpose.

Therefore, we did feel bound by the terms of our commission and by the fact that the Conference had accepted these grants to try to work out a Code on the subject of {19} Marriage and Divorce.

Now, with respect to what might later be done in the way of division by a legislature, the acceptance of parts, for instance, the enactment of separate parts, as has been done with respect to some other of the extensive codes which have been promulgated by the Conference, this may be a matter of legislative strategy in the various states. I think that under the terms of the grant it would be undesirable for the Committee to attempt to provide separate statutes.

MR. GIBSON: We will proceed with the reading.

Part II

Marriage

MR. JENNER [Ill.]: Mr. Chairman, I move that in the event the Conference this afternoon adopts the report of the Executive Committee with regard to the change in the interpretation provision of this Conference, Section 103 will be conformed to that action of the Conference. {20}

CHAIRMAN READ: I take it that the motion is not necessary, Bert, because the motion this afternoon would override what we do this morning. However, the Committee will do so anyhow.

Will you comment on 201?

MR. STRAUCH [Memphis, Tenn.]: In regard to Section 201, am I to understand that this section eliminates common law marriage, or as we call it sometimes in our State, marriage by estoppel? [Laughter]

MR. MERRILL [Okla.]: This matter will be reached at a later stage. We have sections dealing with that.

MR. FRASER [N.Y.]: This is a trifling thing, perhaps, but why don’t you put that in the singular? The rest of it refers to a marriage, or the marriage. Why not just say "A marriage must be licensed"?

CHAIRMAN READ: We accept that.

MR. GIBSON: [Reading]

There was a question asked regarding (a) (2) about the dissolution of the marriage, the question being: What about dissolution by death?

Now, it is the opinion of the drafters of the Act and, I believe, of the Committee that (a) (2) would refer to a dissolution by death. " . . . .if either party has previously been married, the date and place of dissolution of the marriage" {22} would be the date of death of the other spouse. Is that right?

MR. MILLER [Baton Rouge, La.]: May I ask a question with respect to subparagraph (5)? Why shouldn’t that also include first cousins, as well as the higher relationships?

CHAIRMAN READ: Will you hold that until we reach that subject later?

MR. GIBSON: That will be taken up in Section 205.

MR. MILLER [La.]: Well, it appears in 202 (5).

MR. GIBSON: 207 — I’m sorry. As I understand it, marriages between first cousins are not prohibited.

MR. MILLER [La.]: They are in our state.

MR. GIBSON: Well, that’s true in a lot of states. This would change that.

MR. SHOEMAKER [Denver, Colo.]: Why was sex left out of the information required? Or is it intended that two males can marry?

MR. GIBSON: I don’t think that it’s so intended, no. There is no objection to putting sex in there.

MR. BURDICK [N.D.]: I would like to suggest that the Social Security number be included here under (1), because many of these marriages end in divorce, as we know, and they usually involve dependent children, and the Social Security Administration will now allow you to pursue these if you have your Social Security number — that is, for the purpose of enforcing support {23} orders — and one of the best ways to get that number is at the time of the marriage and certainly the Social Security number is one of the best means of identifying the persons, and I recommend that you include that as an item of identification.

CHAIRMAN READ: The Committee will note that I have a feeling that the Social Security number is picked up in other sections and at other stages of the proceedings, rather than here, but the Committee will consider whether it should be here.

MR. GREEN [St. Louis, Mo.]: Mr. Chairman, I’m not entirely sure what all of the purposes might be of subparagraph (2), lines 7 and 8, but presumably you want to be able to verify the previous dissolution by divorce or death, or whatever has happened, and that’s why we’re asking for the date and place of the dissolution.

In the case of some women these days who get married over and over again, unless you get the name that they were going under at the time of dissolution, you are not going to be able to verify it. I wonder if it wouldn’t be a good idea to require the name of the previous spouse.

MR. GIBSON: I couldn’t get your suggestion. Will you — ?

CHAIRMAN READ: I think the suggestion was that under {24} subparagraph (2) the name of the party at the time of the dissolution must be included, because with multiple marriages you can’t tell whom you are dealing with unless you have the prior name, is that right?

MR. GREEN [Mo.]: That’s right.

MR. JENNER [Ill.]: Mr Chairman, I do not rise in opposition to that, but I rise with a possible alternative suggestion.

I have had trouble in the case of proving collaterally in litigation dissolution of marriages. I get approximately the date and the place, but I have trouble finding where the court is — the particular court — especially in large metropolitan areas.

I think you will accomplish what Commissioner Green has in mind and afford the full information by requiring in sub (2) not only the date and place, which is not very informative, but the court in which the dissolution took place.

CHAIRMAN READ: The Committee sound as though they accept that.

MR. SCHWARTZ [Boston, Mass.]: I’m not a biologist, but I’m wondering about the meaning and significance of the words "qualified genetic counselor." I’m not clear as to whether there is sufficient unanimity about geneticist that you cannot select one as opposed to another. I don’t know what the work "qualified" {25} means in this connection.

MR. MERRILL [Okla.]: The suggestion is that we will answer that a little later.

MR. GREEN [Mo.]: I don’t think Mr. Jenner’s solution is a complete solution to the problem. If all we know is the date and place and court, we could have in a metropolitan area any number of divorces granted in that court that day. If we don’t know who she got divorced from that day, we’re just going to have to track down a whole lot of divorces out of that court that day.

CHAIRMAN READ: The Committee will accept that. I think this is a matter of drafting to carry out Commissioner Jenner’s suggestion.

MR. NEEDHAM [R.I.]: Mr. Chairman, if you place the emphasis by accepting the suggestion from the last two Commissioners, Green and Jenner, then you, by putting in language, are apt to have the words "dissolution of the marriage" refer only to dissolution of the marriage by divorce.

Now, it was my thought that it was represented to the Conference by the chair that you also intended to have the word "dissolution" refer to death. If you start putting words in that define dissolution within the Act, you better include death as well. {26}

CHAIRMAN READ: I think this is also a matter of drafting to carry out the suggestion. I’m sure the Committee will cover it.

Can we go on to 203?

MR. GIBSON:

MR. LANGROCK [Vt.]: I have a question here. I’m not sure that anybody under the age of 16 should ever be allowed to marry. My experience would be that it doesn’t work out {28} at all.

Are there any statistical studies available as to the possibility of a marriage succeeding where the persons marrying are under the age of 16? Or is it almost always a case of pregnancy involved?

MR. MERRILL [Okla.]: I will ask Bob Levy, our reporter, to answer that. And may I at this time do something that I should have done earlier; ask unanimous consent of the Committee of the Whole that the privilege of the floor for the purpose of answering questions and making comments be accorded to Robert Levy and Herma Kay.

CHAIRMAN READ: Hearing no objection from the Committee of the Whole, you have the privilege of the floor.

PROFESSOR ROBERT J. LEVY [Minn.]: I think the answer, to the extent that I can give you anything that can possibly be labeled an answer, because of the relative lack of statistical data, is that as the age of the marrier, or of either marrier, goes down, the prospects for dissolution through divorce go up; the chances of divorce go up. All of that is fairly well acknowledged.

It’s also fairly clear that not all marriages of people who are under X age end in divorce. The problem with saying anything more than that, however, is that no one has {29} ever gotten data sufficient to isolate fairly and adequately what the impact of youth by itself is. Most of the studies acknowledge that when young people marry, there are other problems also commonly associated with divorce that accompany that youth; for example, lack of education, lack of employment opportunities, lack of education of the parents, or a divorce among the parents. So I think that most social scientists would say that the chances of divorce increase as the age at which marriage occurs goes down, but they are not willing to say that extreme youth means that the marriage will end in divorce because there are too often complicating what are called independent variables which are too often associated with youth.

MR. LANGROCK [Vt.]: If I may just, perhaps, put it in the form of a motion, I don’t personally believe — and I will move that we delete from the Act — any permission that marriage be allowed under the age of 16. I think what almost always happens is that the girl goes before a judge, and if she is pregnant, then the marriage is permitted; and if she is not, then it never is.

I do not think that pregnancy is a valid criterion for allowing the marriage to take place. I think, in the light of the comments of Mr. Hanson in his report, talking about the nature of the long-lasting obligation, that we should at least {30} have somebody dig into it who has some knowledge of what is going on, and I don’t think there is any social justification for allowing anybody under the age of 16 to marry, and I move we delete it.

MR. MERRILL [Okla.]: Mr. Chairman, speaking for the Committee, we would feel obliged to oppose that motion. This is a question which has loomed large in our deliberations through the period that this Act has been in process of consideration. We sympathize — I think every member of the Committee would sympathize heartily with Commissioner Langrock’s philosophical position that 16 is certainly a minimum age for marriage. On the other hand, we have been confronted with the fact that these kids are getting together, that if there is an insuperable barrier to marriage, many of them — and increasing numbers — are nevertheless going to live together, and as one of our Committee members expressed it no longer ago than last evening, it would be preferable to have them married rather than to have them living together in an unrecognized association.

The fact with which we are confronted is that something must be done. I have had such cases under my own observation. I think every member of our Committee has had that. I’m sure that most of the Commissioners, in one form or another, have been confronted with this sort of situation, and our philosophy {31} is that, since we are going to have substantial numbers of persons under 16 who will in one form or another get together, we think it is much better to allow the court to review the situation and to grant what might be called a dispensation from the ordinary age standards, if the situation justifies it. This is the thinking of the Committee, and we would on that ground urge defeat of the motion.

MR. NEEDHAM [R.I.]: Mr. Chairman, I feel constrained to comment on the Commissioner from Vermont’s philosophy.

I too have experienced marriages of youngsters under the age of 16, and I too have had the experience that they do not succeed, whether or not they have court approval. I’m not certain that this motion should have been put now, at this particular time. However, by way of speaking in opposition to the Committee, we are informed that the sense of the Committee is that the purpose of our Act is to promote integrity and stability in marriage and to bring about a conscious awareness in the citizenry of this country of the obligations of marriage.

Then we are told, and we recognize, that many of our youngsters under the age of 16 are going to enter into relationships, and we think we ought to give the responsibility to somebody else as to whether or not we should give them some kind of legal status by letting them get married. What standards? Who {32} makes the decision? What uniformity is being promoted by turning the responsibility over there?

One might ask the further question: if we have a problem, and if children are going to get together under the age of 16, why not face up to the problem of lowering the legal age to get married? Put it down to 14.

I suggest that neither the Committee nor anybody here would support a 14-year-old age, but I think we sit here and say sanctimoniously that we’re going to hold to 16, but we’re going to push it off to the juvenile court, or some court, to say behind closed doors under what conditions — and I agree, no judge permits a marriage unless in the event of a pregnancy, and I don’t think the fact that a young lady is pregnant should be a basis for granting any court the privilege of allowing the marriage, and I would vote to support his motion.

MR. HELLRING [N.J.]: I think it’s fair to say that other members of the Committee are in great sympathy with the views expressed by Commissioners Langrock and Needham. Indeed, if there were a way to accomplish the philosophical objective to which they address themselves, the Committee would have presented it. We have thought about it at great length. The Reporters have researched it, and there really isn’t a way to do it any better, we think, than the way in which we have done it. {33}

Now, for one thing, if you will study this section, which has already been read, you will see that a person under the age of 16 may not get a license to marry, and may not marry without a court order, without judicial approval. That means that even if both parents consent, no license issues, and no marriage takes place, unless there is judicial approval.

The subject of judicial approval of such a marriage is dealt with further in Section 205, and the language in 205 (2), which appears on the next page, may be the subject matter of some further discussion by Commissioners Langrock and Needham when we get to it; but I call attention to the fact that we have placed the greatest possible impediments to any marriage below 16 which we feel can sensibly or socially be placed. The requirement of judicial approval gives the various states, within the concept of uniformity, the opportunity to look at every situation on an individual basis and give the court the opportunity to decide what is in the best interests of the applicant, or the person under 16; so that if you look at 205 (2) — and I refer to it now only to clarify the meaning of the section we are now considering — you will see that it says at the bottom of page 4 that judicial approval may go to a party under the age of 16 if the court finds that the party is "capable of assuming the responsibilities of marriage and the marriage would serve his {34} best interests."

If there is a pregnancy, and if the judge looks at the situation and decides that under all of the circumstances — the parents’ views are considered, and everybody else’s views are considered — that the best interests of that child required judicial approval and that that child is capable of assuming the responsibilities of marriage, then and only then is the court authorized under these standards to grant judicial approval. Under all of these circumstances, it’s the view of the Committee that we have gone just as far as we possibly can go to give effect to the general philosophical concepts which Commissioners Langrock and Needham have already expressed. Thank you.

MR. JENNER [Ill.]: Mr. Chairman, I rise to oppose the motion. It seems to me, in addition to the comments made by Commissioner Hellring, the motion is self-defeating; that the very objective of the making of the motion is defeated by the motion itself, if carried, in that you will have a situation in which you will deprive the court of undertaking to approve a marriage to meet the situation of which the makers of the motion told us.

It seems to me that the Committee, facing a very difficult social problem that is there — and we can’t do anything about the social problem — has reached about as close to a Solomon-like {35} decision as can be made. It seems to me that the motion, if carried, will brand us with being people who pull a sack over our heads and fail to face the facts.

CHAIRMAN READ: The question has been called for, and it seems to me that the issue is very clear, Unless you have something new and novel to contribute, I would like to go ahead with the vote.

MR. WELLING [Charlotte, N.C.]: What is the magic approval of the court that a 16-year-old child who is pregnant can go out and succeed in marriage, which the child can’t do anything but fake? And for this group to give approval to such conduct is sticking our head in the bag. What we need to do is look and see what the social problem is, and get that 16-year-old child to the proper facilities to take care of it. A 16-year-old is not today in a position to assume the responsibilities of marriage. In our State he cannot get a job without a special work permit at age 16.

Years ago we had a society where people had at 16 and 18 completed the formal education they were going to get, and they went out into the work world and formed a family to live together and to raise children. Today at age 16 children are just beginning their formal education, and to saddle them with a marriage is wrong, and I will support the motion. {36}

CHAIRMAN READ: Thank you, Commissioner.

The question has been called for. The motion is to strike the provision of subsection (i) of section (1) of Section 203 and, I presume, to make an appropriate amendment in 205, so as to prohibit marriages under the age of 16.

[The motion was put to a voice vote and was lost.]

CHAIRMAN READ: Will you comment further on 203?

MR. JENNER [Ill.]: Just a housecleaning suggestion. I suggest that on line 6 you eliminate the dollar figure, because that will change from time to time. I suggest that it is sufficient to say "have paid the marriage license fee required by statute", or some appropriate reference of that character.

CHAIRMAN READ: The Committee will consider that.

MR. BURKE [Madison, Wisc.]: I would like to make a further suggestion in regard to this age, simply because in our sponsorship of Uniform Acts I am quite sure that we in Wisconsin could not come in with this Act allowing marriages under 16 and hope to get anywhere with it. It would be amended out of there so fast it would scare you, and then we’d wind up with an un-uniform Act, and we are even criticized for having put such a thing in our State.

I would go farther than the 16 requirement. Is it not possible to bracket even the reference to marriage under 18, so {37} that the state can have the flexibility, under some circumstances at least, of freedom of choice, so that we don’t wind up in the position of sponsoring an unacceptable Act, and wind up with nonuniform amendments?

CHAIRMAN READ: Thank you, Commissioner. I think, as a matter of fact, there is a substantial degree of uniformity in this country at the present time authorizing marriages under 16 on order of court.

MR. MEANS [Tallahassee, Fla.]: I wonder if it’s wise to have an official document set out the names and addresses and phone numbers of counsel. As with the genetic counselors, you have a difficulty of definition. This is tantamount to furnishing approval of somebody’s competence.

Even if you get by these problems, there is an additional one of keeping the information continually updated.

CHAIRMAN READ: Commissioner, the Committee agrees. That’s a bracketed provision, however.

MR. MEANS [Fla.]: I’m sorry. I didn’t notice it was bracketed.

MR. ABRAMS [N.J.]: I’d like to ask the Committee why Section 203(1)(iii) is bracketed. Why is it not conceived by the Committee that a medical examination with the respect to marriage should be a uniform requirement of the states? {38}

PROFESSOR LEVY: Well, in the first place, I think you should notice that under subsection (2) (ii) the clerk is instructed to inform the parties about the importance of a premarital medical examination, and that is not bracketed. That is, the agency is directed to tell the parties to a marriage that premarital medical examinations are important.

We bracketed (iii) because we thought it appropriate not to get into what is unquestionably a very difficult and a highly controversial problem that is currently being fought out in the literature and, I suspect, in the state legislatures about the importance of the kinds of premarital medical examinations that most state legislatures have provided in their marriage codes.

The premarital medical examination idea was fostered early in the thirties under the fear of venereal disease and as a way to discover venereal disease and to treat it. It has been pointed out for a good ten years now that the cost of discovering venereal disease through premarital medical examination comes to something like, I think, in New York, which was the state that was used for the study — something like $3,000 — or was it $30,000?— per case of venereal disease discovered. And the main supporters of premarital medical examination legislation have now become the blood testers and other laboratory {39} persons who see it as an economic issue, rather than as one associated, so the experts believe, with anything approaching rational marriage or premarital regulation policy.

It seemed to the Committee that, without getting caught in the middle of that kind of controversy, we could bracket the language and by comment point out to the legislature of each state that here is an issue that the legislature should address itself to. It will then become a subject for discussion and controversy in each legislature which the Conference can gratefully stay out of.

MR. ABRAMS [N.J.]: In view of the response of the Committee, is it then the position of the Committee that a medical examination is good or bad, or of no value? I can’t quite understand.

If it is good, then I think we ought to have it. If it is bad, then we ought to take a position. Why bracket it at all? Why not simply state that we don’t think it should be required?

MR. HELLRING [N.J.]: May I say to Commissioner Abrams that a test of the sentiment of the Commissioners present in this Committee of the Whole may well be a desirable thing. The Committee was divided on this question. We thought it well for Professor Robert Levy to answer your initial question. Since it was the knowledge imparted to the Committee by him and his research {40} on this question which first presented us with any doubts as to whether there ought to be a premarital medical examination required. When we got the information he supplied us, there was a test of the sentiment of the Committee, and the result of the test was to place this section in brackets, which means, of course, that each state will make its own decision as to whether a medical examination will be required. We did think that we had contributed a good deal to the current law on the subject by adding, as Professor Levy pointed out, subsection (2) (ii) on the next page, which goes beyond simply a medical examination of the type with which we are familiar, by requiring that the applicant for the marriage license have pointed out to him the importance of and how to obtain a premarital examination not limited to a blood test, as well as premarital advice as to family planning; but if you think that a test of the sentiment of the Conference with regard to blood tests should be obtained, this is the time to have it.

MR. JENNER [Ill.]: It is now twenty-five minutes after twelve. We have lunches at 12:30. May I suggest that this discussion be continued this afternoon?

Mr. Chairman, do you have a report?

MR. SULLIVAN: [Missoula, Mont.]: Mr Chairman, I move that the Committee of the Whole rise, report that it has had under consideration {41} the Uniform Marriage and Divorce Act, that it has made progress and asks leave to sit again.

CHAIRMAN READ: You have heard the motion.

[The motion was put to a vote and was carried.]

* * * * * * * * *

Uniform Marriage and Divorce Act

Saturday Afternoon, August 1, 1970

Mr. Harold E. Read of Connecticut presiding;

Mr. Floyd R. Gibson of Missouri presenting the Act.

CHAIRMAN READ: Will you comment further on Section 203, which you were considering before lunch?

MR. MERRILL [Norman, Okla.]: Before we get into that, Mr. Chairman, may I request those of you who have written suggestions to hand up that, in view of the need for your getting them to all, you hand them to Bill Burrage on the extreme end.

MR. DUNHAM [Ill.]: In Section 203, lines 9 and 10, with respect to marriages between children 16 and 17 — that is, over 16 but under 18 — it seems to me the requirement of consent of both parents is an unduly onerous provision, even with the catch-all of allowing the judge to substitute for the consent, whereas if the child is the product of a broken home, they may not be able to find the other parent, and I assume "parents" is {42} used in the biological sense. So I would like to move that the consent of only the custodial parent be required, not both parents.

MR. CALLOW [Wisc.]: I’d like to speak to that. I would speak for the Committee, to the extent that this was debated at substantial length by your Committee, and we concluded, I believe it’s fairly stated, that we tried to eliminate — or avoid eliminating — parental rights as much as possible in the matter of divorce, and we felt that the person — the non-custodial parent — who contributed to the support of the child, who spent a good deal of time with the child, had an inherent right to consent; the more frequent being the father who is the supporting rather than the custodial parent. We felt we would be taking from that parent a right that seems to have been appropriately awarded to the father, and it should not be taken from him simply because there was a divorce.

We recognized that there could be these problems. We recognized that there might be a situation where the father could not be found, and in that event application could be made to the court; but we felt that it would be considerably more acceptable to the legislatures and serve the public interest better to provide this right for both parents to be involved in this rather important act, and for that reason we have {43} required both, and I assure you that it was not considered lightly, but was considered after great deliberation, and this conclusion reached.

MR. SULLIVAN [Boise, Idaho]: As Judge Callow said, this was debated at great length in the Section meetings in Chicago and in the Committee and yesterday. I agree with Mr. Dunham’s motion. I think that the situation is too remote, where we are getting into a consent, where the father should have to give consent.

If the situation is such that he is close to the child, he’s going to know about it anyway, and any persuasive factors that he might be able to bring to bear about it will be brought anyway, but we are dealing also with a situation which I think is probably five percent of the cases where the father or the mother who is the non-custodial parent is going to be almost unavailable, or cantankerous, and I don’t think that the consent should be required. I agree with Mr. Dunham’s motion.

MR. HELLRING [N.J.]: Mr. Chairman, on this question the Committee took a position which was more restrictive. This morning when we talked about the question of underage marriages of people under 16 — persons under 16 — on the issue of whether that should be prohibited entirely, the Committee after lengthy debate decided it couldn’t do that, but it would present the {44} greatest possible restrictions upon such marriages.

Now, on the question of persons of the ages of 16 and 17, even though they are a year or two older, it seemed to the Committee that the greatest possible roadblocks or deterrents should be placed upon such marriages short of prohibiting them, and here again in requiring the consent of both parents in marriages of children of the ages of 16 or 17 — or persons, if you will, of the ages of 16 and 17 — which can be done under this Act without judicial approval if there is the consent of both parents — it seemed to us the sensible thing to include both parents, even where there has been a divorce and where the child is in the custody of one of the parents, because of the frequency of circumstance under which the non-custodial parent, although having either given up custody voluntarily, as is true in most instances, or having been denied custody, is the parent supporting the child and having a great interest in the child. Such a parent would find himself in a very peculiar position if suddenly, without even a by-your-leave, the custodial parent consented, and the non-custodial parent found that his child had suddenly become married.

And so we thought it was better to put as much deterrent as possible into it, and the Committee by a strong vote voted in favor of the requirement of both parents. {45}

CHAIRMAN READ: Possibly, Commissioner Dunham, there may be some middle ground. I don’t see one right now here. Obviously, if the feeling is strong enough on both sides, I wonder if you would settle for a sense of the meeting, or an agreement by the Committee to consider ir further.

MR. DUNHAM [Ill.]: The sense of the meeting.

MR. DOWNS [Detroit, Mich.]: I have further question on the medical matter in lines 26 and 27. Is that in order now?

CHAIRMAN READ: No, I don’t think so. We’re calling for a motion as to the sene of the meeting.

MR. FRASER [N.Y.]: I don’t see, myself, what the great problem is, because if the consent of both parents cannot be obtained, all you have to do is go to court. What more do you want?

MR. HELLRING [N.J.]: That’s the way this Act is now drawn. You are certainly right.

MR. BURKE [N.D.]: I was wondering, if there is only one living parent, does that mean that judicial consent would be required?

CHAIRMAN READ: The Committee indicates that it is not so intended.

MR. BURKE [N.D.]: I think it probably ought to be worded a little more clearly in that respect. {46}

CHAIRMAN READ: The Committee will consider that.

The motion, therefore, is on the sense of the meeting as to whether the approval only of the custodial parent should be required in persons aged 16 and 17.

[The motion was put to a voice vote and was lost.]

CHAIRMAN READ: Will you remark further on 203?

MR ABRAMS [N.J.]: Mr. Chairman, I have a question. When we adjourned for lunch, I was about to make a motion with respect to Section 203 (1) (iii), and things looked a little clearer at the time, but since then I was asked if I have been retained by the laboratory lobby, and I wished to deny that. [Laughter]

I would like to move with respect to 203 (1) (iii) that the brackets be deleted, and, further, that portion of the sentence "required by the laws of this state" be deleted, and whatever requirements are to be imposed with respect to a medical examination be incorporated at this point, rather than differing to some other Act which the state may or may not have, because uniformity, if we are going to achieve uniformity in this thing, should apply as well to whatever medical examination should be employed.

If there is a worthwhile medical test — and I’m not sure that there is, after listening to Professor Levy — then, {47} whatever it is, it is just as important in New York as it is in North Dakota, and by changing the medical requirements, even if you had a required certificate, all you are doing is making marriage transitory, and they are going to a place where different medical tests would be applicable, and those are just the people we do not want to allow, probably, to marry, because of medical impediments.

Therefore I move, actually, for the sense of this body that a certificate of medical examination should be required, and that what the medical examination should be should be incorporated in this Act.

CHAIRMAN READ: You have heard the motion. Will you comment further? [There was no response.]

[The motion was put to a voice vote. ]

CHAIRMAN READ: The motion is lost. [Laughter]

Well, the chair is not in doubt, but the neighborhood is in doubt.

All those in favor, please stand.

MR. VESTAL [Iowa City, Iowa]: Restate the motion.

CHAIRMAN READ: The motion is, in this subsection (iii) of subsection (1) of Section 203, to strike the brackets, strike the language "required by the laws of this state", and state in this Act the type of medical examination that we recommend be {48} required on a uniform basis in all states.

[The motion was put to a standing vote.]

CHAIRMAN READ: The count is thirty-five opposed, and thirty-two in favor. I told you I was not in doubt. [Loud laughter]

MR. BRAUCHER [Mass.]: Mr. Chairman, I have been troubled by subsection (2) of this Section 203.

Now, I realize that this kind of thing is found in a number of statutes, but I find it really rather strange as a statutory condition to the right to have a license that you have to be furnished with advice as to something that’s important, especially if the thing that you are advised is important is utterly unimportant. [Laughter]

I have a picture of a man forty years old going in for a marriage license and having some bureaucrat telling him how important it is that he obtain counseling, and I find that an offensive piece of government work.

I toyed with the thought that maybe this should be limited to those people under 18, or maybe even those under 16, but it seemed to me that I really was unable to identify myself adequately with people under 18 and under 16, and I suspect they would find this offensive too, and I therefore move you, Mr. Chairman, that we delete subsection (2). If the bureaucrat {49} wants to have literature out in his office, the way you have it in the doctor’s office, I have no objection to that; but I don’t think it needs to be in the statute.

Moreover, as I read this, it contemplates that he will tell these people what kind of literature should be handed out to them and I’m sure that there are some people who will take a far stronger view than the one that I have expressed. There are some people who do not like to be told by the government about the importance of premarital medical examination, for example.

MR. HELLRING [N.J.]: It seems to me that by a system of negative default I have been asked to respond to that. [Laughter]

One of the Commissioners tells me to point out that it was put in at the request of HEW. [Loud laughter] That must be a member of the Committee who is in favor of the motion. [Laughter]

You know, we all, of course, resent government telling us what to read. We feel the same way about it as Commissioner Braucher does. On the other hand, this is the result of a great deal of discussion, which started way over on one end on the question of whether you should impose a requirement of premarital counseling before you give a marriage license and {50} what you can do to either slow up hasty marriages, what you can do to warn people about the necessity for getting medical examinations, and premarital counseling, and about the same forty-year-old fellow with the flapper blonde who knows that he has been a bachelor all his life and has got a lot of money — maybe he does need the premarital counseling [laughter] — but, anyway this goes no further than to place in the statute a tool with which the agency giving out the marriage license can furnish the mildest kind of opportunity for exposure to the applicant for a marriage license, and, of course, we have young people in mind to a great extent, as Commissioner Braucher guessed — but simply expose them to some information on the subject, in the event they would be interested in having it.

We don’t see how it can be harmful. They are not required to read it before getting the marriage license. They are not required to make a report on it running a thousand words, or anything of that kind. They are merely exposed to it, and they can ignore it entirely.

So for those people — for those young people — who may as a result of parental pressure decide to follow the advice contained in any one of these pieces of literature that’s handed to them, we thought that it would be some indication to the states which were being asked to adopt this as a Uniform Act {51} that the Conference had given consideration to the question, and at least had provided a method of exposure, without any compulsion. We don’t see how it can harm; and after full debate the Committee urges that the motion be defeated and that the language be left as it is.

MR. LANGROCK [Vt.]: It seems a little hypocritical to take a seventeen-year-old boy who is under a charge of statutory rape of a fifteen-year-old girl, and ask him to be very careful about undertaking the legal obligations of marriage. [Laughter]

CHAIRMAN READ: The motion is to strike subsection (2) of Section 203.

[The motion was put to a voice vote.]

CHAIRMAN READ: I think that motion carries. Will you comment further on 203? If not, Commissioner Gibson will read Section 204.

MR. GIBSON:

MR. JOINER [Mich.]: I want to inquire as to why the 10-day {52} period was selected.

CHAIRMAN READ: Nine was too short. [Laughter and applause]

MR. MERRILL [Okla.]: That statement is literally true, plus the fact that eleven was too long. [Laughter]

MR. JOINER [Mich.]: Why, though, do you have such a long period?

MR. CALLOW [Wisc.]: Let me respond to that.

We have just — I think, unfortunately — deleted a section, but that is the choice of the house. If you go back into Bob Levy’s monograph on this, you will find that there is some statistical information going back in history, I suppose, that a long engagement might be desirable; that many engagements that are lengthy — statistically, I think about one-third — actually didn’t culminate in marriage. And we felt that though we, by accusation, have drawn a bill which will make divorce easer, and that has been the sense of those who are most critical of the proposed law — we felt that we should on the other hand put in some stringent material. We start out in our purposes by suggesting "to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships", and we firmly believed, after consulting with many advisors and drawing upon the rather expansive experience {53} of those members of this Committee and of the Section, that we should not permit or encourage by legislation a marriage to occur on rather short notice.

I remember well the words of Professor Braucher a year ago when he was very concerned about delaying the right to marry, and I’m convinced that we believed — and there are people who are students of this field who believe — that not only should people be obliged to wait ten days before marrying, but probably a great deal longer, and they would think that ten days is an inadequate amount of time, although there are vehicles by which it may be avoided. If people cannot come into the state because of military commitments or other special circumstances, the judge can waive the 10-day requirement.

Now, I’m convinced that we did well by putting in this provision that there should be some literature made available to those contemplating marriage. We felt we should make some of this literature and some of this information available to people, and I can tell you that my experience would indicate that that would have been desirable.

I would also believe that the 10-day requirement is highly desirable, and will meet with the approval of the various legislatures as to the matter of the time element, and there certainly were some who thought that thirty days was considerably {54} more appropriate. Others thought three days would be appropriate. Ten was reached on the consensus of our Committee and on the advice of what I think are rather learned advisors.

MR. JOINER [Mich.]: It seems to me that what you have done is that you have in a very large number of cases required the additional step, then, of going to the court to get permission to have an immediate license, because in a large number of marriages — or a significant number — it seems to me people do come in from out of state — college people coming in to get married.

MR. CALLOW [Wisc.]: They usually see each other at Christmas time. If they are to be married in June, it’s good for 180 days, so that problem is eliminated.

MR. LANGROCK [Vt.]: This provision would have prevented my marriage, [laughter] and I’m one of the people who married somebody from out of state, and I certainly didn’t have any ten-day delay. I think it doesn’t accomplish anything, and all it does is put another burden on the judiciary to administer an Act when it’s unnecessary, and I don’t think you can prevent bad marriages by extending it from three days to ten days.

MR. BRAUCHER [Mass.]: While we’re having testimonials here, Mr. Chairman, [laughter] I have been married for almost thirty {55} years, and I went from one state to another to avoid a three-day waiting period, because I didn’t have three days, because there were obligations to the United States Government that took priority. And I would move you that we delete the waiting period entirely.

CHAIRMAN READ: Bob, you are saying that a license to marry becomes effective when issued?

MR. BRAUCHER [Mass.]: That’s the sense of it. I don’t want to do the drafting. I have no objection to the 180 day part of it.

MR. McELROY [Tulsa, Ok.]: I would like to agree with Professor Braucher personally. I think this ten days, particularly in Oklahoma, is only the period of courtship. [Laughter]

Secondly, our State has always been rather rapid in its adoption of uniform laws, and I’m afraid that our marriages would commence to take place in Texas, Colorado, Kansas, and Arkansas, if we happened to be the first to enact such a provision as this. I think that would be one mistake.

The other mistake would be that, as a matter of form, it’s a restriction upon the right to contract that I don’t believe anybody would ever pay any attention to, and I don’t see any excuse for it.

CHAIRMAN READ: I think in part this provision reflects, {56} as I recall, a sense of the meeting vote last year in Dallas, at which it was indicated that if we were going to make it easier to be divorced, we should make it harder to become married, and I think that that’s a worth while consideration for you.

MR TOWNSEND [Ind.]: I would like to speak in behalf of Professor Braucher’s suggestion, on this very basic ground.

I think somewhere this meeting has gotten two ideas that seem not to agree with me, and one is that marriage is a dirty thing, and I don’t see that throwing up an obstacle to it because it’s bad is a good idea, because most marriages turn out pretty well.

Again, we have made divorce a dirty word, which I don’t agree with, because many dissolutions have been very desirable, and I think the whole atmosphere here should be reexamined in this particular light, because I don’t believe young people think the way you are talking.

PROFESSOR LEVY: There is some evidence in a number of studies that suggests that a waiting period does avoid some marriages — the drunk marriages, the migratory, across-state-line marriages, the very youthful marriages that often are regretted very quickly and terminated very quickly, either through annulment or divorce. There is no evidence that suggests {57} that more marriages that perhaps by consensus in this room you would all agree are ones that should not have been entered — whatever that means — would be avoided by lengthening the waiting period.

Now, it does seem that there is a value judgment here, because it’s fairly clear, I would think, that people who, let us say, are drunk and who in the absence of a waiting period can talk a clerk into a license, because of the waiting period may very well do what marriage entitles them legally to do without getting married. You have to make a decision about whether that is behavior that is better for us to encourage than it is for us to encourage them to get married in order to do what they have in mind anyway.

I leave that to you, but it does seem to me to be fairly clear that a waiting period does prevent some marriages that are very quickly decided by the parties to be of no importance — some waiting period. The length of the waiting period, as far as I can tell, is immaterial in that respect.

CHAIRMAN READ: The motion, then, is to delete the ten-day waiting period on effect of the marriage license in Section 204.

MR. CALLOW [Wisc.]: Only because it was suggested by one of the Commissioners that perhaps we had made marriage a dirty {58} word, and divorce, perhaps, even dirtier — I assure you that it was our intent to make marriage considerably more thoughtful and considerably more workable and entered into more advisedly. And we also intended to take from divorce that attitude that seems to exist that there must be bitterness and unpleasantness. We tried to draw a law and offer it to you — a divorce law — that would serve the interests of all without recrimination, without unpleasantness, still recognizing the obligations that are upon each of the parents for those children who were in the world, and our attitude in drafting was toward that and rather than making these things, as suggested, a dirty word.

MR. BUERGER [N.Y.]: I move to amend Mr. Braucher’s motion to delete the 10 in line 2 of Section 204 and substitute brackets with a blank in it and an appropriate comment to the section indicating the relative desirability of either a waiting period or no waiting period. [Laughter]

CHAIRMAN READ: Will you accept that amendment, Mr. Braucher?

MR. BRAUCHER [Mass.]: Yes.

CHAIRMAN READ: The motion, then, is to bracket the place where the 10 now appears, but leave the number of days blank and explain by comment what we are driving at.{59} [The motion was put to a voice vote and subsequently to a standing vote.]

CHAIRMAN READ: That motion carries by 49 to 34, so that the brackets will be inserted, plus a comment.

MR. GIBSON:

MR. HOLMAN [Seattle, Wash.]: Speaking to paragraph (a), I would like to know what the Committee’s thinking is on a couple of points here.

No. 1, you have a notice requirement here, and I’m wondering if this notice should be given in accordance with some other statute, number of days’ notice. Is notice by publication acceptable? You have the problem of the non-custodial parent which we discussed before lunch, who may not be available to get notice, and this means that the non-custodial parent that you may not be able to get hold of is going to have trouble getting a notice.

The second question is one of draftsmanship. If a notice is required under (a), then how do you justify subsection (i) where the party has no such parent, guardian, or legal custodian? It seems to me that makes a nullity out of it.

I just wondered if the Committee had thought about those two points.

MR. MERRILL [Okla.]: First, with respect to the question as to notice and the method of notice, it is our thought that in most states there are either practice acts or rules of court which define the manner in which notice is to be given, and in this particular instance we felt that it was desirable to let the particular practice, rule or statute, of that state govern.

Now, I’m not sure that I understood exactly Commissioner Holman’s second comment. Could you make that a little clearer?

MR. HOLMAN [Wash.]: Commissioner Merrill, the section starts out, "Following the notice to the parents, guardian or legal custodian, the court may order", and then it gives the two cases. Well, one of the two cases is where the party has no parent, legal guardian, or legal custodian, so it seems to me that it’s very difficult to give the notice.

MR. MERRILL [Okla.]: That was your problem? I could not see it at first.

MR. HOLMAN [Wash.]: I think it’s a drafting point.

MR. MERRILL [Okla.]: My feeling, frankly, there was that it would be self-evident. I say my feeling; it was also the feeling of the Committee and the Section that it would be self-evident that if these persons were not present, not available, not in being, so to speak, you then required no notice, and that (a) was not operative in that situation.

MR. HOLMAN [Wash.]: I’m afraid our courts might not agree {62} with you, Commissioner Merrill.

MR. MERRILL [Okla.]: You mean that the Supreme Court of Washington would rule that you must give notice to people who are not in existence?

CHAIRMAN READ: Gentlemen, the Committee will reconsider the drafting, and in the meantime I would like to ask that drafting questions be submitted to the Committee in writing. We should not be debating them on the floor.

MR. VON HERZEN [Calif.]: I rise to ask a question. What is meant in line 5? You give notice to the parent or guardian. The court may order the clerk to issue a marriage license to a party aged 16 or 17. From the standpoint of legislative draftsmanship, you just have to make up your mind. It’s either 16 or 17, and I don’t think you can put it in this disjunctive. What is intended there?

MR. HELLRING [N.J.]: All it means is that it applies to persons of the age of 16 and persons of the age of 17, all persons of those two ages.

MR. VON HERZEN [Calif.]: Of those two ages?

MR. HELLRING [N.J.]: That’s all it means.

MR. VON HERZEN [Calif.]: And it is not necessarily, then, a lower minimum?

MR. HELLRING [N.J.]: No, no, no! It isn’t that at all. {63} We will, however, reconsider the drafting of this. That’s all it was intended to provide.

MR. BRAUCHER [Mass.]: Mr. Chairman, I was a bit disturbed by the answer that was given to the Commissioner’s earlier question about the kind of notice that would be required in the event that one of the parents could not be found. He at that point made reference to the practice acts of the state, and there are obvious provisions for notice in there. Is it really the intention that we would require published notice, which many of the practice acts provide for when you can’t find a person? I would hope it would not be.

CHAIRMAN READ: I think the vote on the prior resolution was for the sense of the meeting on this subject of who has to consent in the first place. I think the Committee has agreed to consider further an in-between solution to some of these problems where, obviously, there could be special coverage of cases where a party cannot be found, for example.

MR. BRAUCHER [Mass.]: It seems to me it’s quite obvious in that kind of a case that you shouldn’t have to spend any money to get any notice to anybody at that point.

MR. HELLRING [N.J.]: The Committee is of the same view.

MR. McKUSICK [Portland, Maine]: The term "legal custodian" appears in this section; it does not appear in 203. I wonder if that’s {64} an oversight.

More substantively, I would think that in subsection (a) (1), applying to a party aged 16 or 17, that a court order of the license should have the criterion of the party being able to assume the responsibilities of marriage just as much as for a party under the age of 16; that the inability to assume the responsibilities of marriage may be exactly the reason the parent is withholding the consent.

CHAIRMAN READ: The Committee will consider that suggestion as part of the general redrafting.

MR. BURKE [Wisc.]: I am bothered by this section, We’re on 205, I believe?

CHAIRMAN READ: Yes, sir.

MR. BURKE [Wisc.]: Lines 14 through 16 say that the court shall order the clerk to issue a marriage license and a marriage certificate to parties to marriages permitted by subsection (a) (3) of Section 207 upon the showing required by that Section, and that says that this is the relationship marriage, the uncle and niece or the aunt and nephew.

Well, I disagree with the first cousin approach, but, aside from that, apparently all these parties have to do is go before the court and say that one party is incapable of becoming a natural parent, or that they have consulted a genetic {65} counselor — whatever that is — before the marriage can go through.

However, the judge has nothing to say about it. If two morons come in and say, "We have consulted a genetic counselor," the judge has no discretion but to order the clerk to issue a marriage license. This is nonsense.

CHAIRMAN READ: Can we hold that problem until we reach 207? I think it’s just preliminary here.

MR. NEEDHAM [R.I.]: Mr. Chairman, I’m also in agreement with the prior remark concerning the party being capable of assuming the responsibilities of marriage, and that it would serve his best interests, as a condition which ought to be written into the 16 and 17 age.

I also think if the Committee is going to redraft this suggestion — I suggest that a parent may be withholding consent to the marriage between 16 and 17 because he objects to the marriage even though a youngster of theirs is pregnant, or even though the father of the child would face some other action. They are withholding their consent, and I wonder whether or not, by way of example, the Committee might consider language which it specifically wrote as to section (ii) under (a), "to a party under the age of 16, whether or not pregnant, unless the party is capable of assuming the responsibilities {66} of marriage and the marriage would be in his best interests", as some language which might also be considered in light of 16 and 17, particularly where a judge could defeat the wishes of the parents of the two kids.

MR. HELLRING [N.J.]: Here again, if you will submit the language to the Committee, we’ll certainly take it under consideration. It’s interesting for us to see — and we have all been talking here about how the views that are being expressed on the floor match to a great extent many of the views that have been expressed by the Committee and various of its members over the debates that we have had during the last two and a half years, and there is a similar veering from slowing up the process to speeding it up.

You eliminated here the exposure to literature. You changed the ten days from ten days to a bracket; but, on the other hand, you want to put in the requirement that they are capable of assuming responsibilities, both as to the 16 and 17 as well as the under 16. We have no objection to doing that at all, but we want you to know that there are people on the Committee, as well as people on the floor, who consider this an unnecessary slowing up process as well. And so our job has been — and continues now to be — to reconcile all these viewpoints and try to put an act together which will be as attractive {67} as possible to the greatest number of states.

MR. TOWNSEND [Ind.]: I have a very serious amendment to this section. I’ll call it Judge Burdick’s amendment, to the effect that the court shall list its Social Security number and ZIP Code in signing the order.

MR. NEEDHAM [R.I.]: Mr. Chairman, I would like, in view of the response to the last action to inquire directly of the Committee whether the Committee feels that it is their view that solely because a woman who is under the age of 18, or under the age of 16, is pregnant, that that’s a reason for her to get married.

MR. HELLRING [N.J.]: Certainly not!

MR. WELLMAN [Ann Arbor, Mich.]: I’m troubled by the judicial approval section here, in this sense. I don’t know quite what this proceeding is. Is this a matter in which the interested persons petition the court in the ususal sense?

I guess I don’t like that idea. I don’t think it should be so difficult to obtain judicial approval. On the other hand, I think if you leave it as it is here, routed to blank court — whatever court is inserted there — there will be a distinct tendency to have it become that.

Is it possible to get the Committee’s opinion as to how the court should act here, whether it is an advisor and {68} overseer of the clerk, or is it intended to be a rather formidable judicial proceeding which may be more of an impediment that is intended?

PROFESSOR LEVY: I think that it’s worth mentioning one general principle that the Committee has followed throughout, and that is that we have tried to avoid making procedural law except when the Committee felt that the procedural principle was an important part of the substantive marriage and divorce law policy that we are seeking to obtain. As you will see later, we have a new name for a divorce petition, styled in a certain fashion because it was considered that that’s important.

We talked about the problem that you raise, and decided not to do anything about it, because we did not think it was important enough to put in this statute, and also because it would involve us in not simply putting a clause or a phrase in, but, rather, putting a great deal in, and also because — well, at least I reported; I can’t remember whether Commissioners reported, that in my State where there is a requirement of judicial waiver of the waiting period, that such things are handled very informally. The parties go to a judge informally in his chambers and say: We’d like to have the waiting period waived. And the judge gets a form, and signs an order, and {69} that’s the end of it.

But there really isn’t a lot of procedural formality and it’s my suspicion, although I can’t testify to this in other states or lots of counties in my own State, that such affairs are in fact handled very informally.

CHAIRMAN READ: In view of the fact that the Committee has already said that it will reconsider some of the drafting and perhaps the substance of this section, I think we might go on with 206.

MR. FRASER [N.Y.]: Just half a second. Since you are talking about drafting, wouldn’t it be well to try to avoid these his’s?

CHAIRMAN READ: Could I have that in writing? We shouldn’t debate drafting on the floor.

MR. FRASER [N.Y.]: I think it’s a little bit more than that.

CHAIRMAN READ: Can I ask you to give it to the Committee; and if it creates any substance problem with which they have any trouble, they will come back for advice.

MR. SCHWARTZ [Mass.]: Mr. Chairman, it may be premature to make a motion to strike sub (b) now, but it ties in with 207 (3) (a), to which I will object later on, and I reserve my motion— {70}

CHAIRMAN READ: Will you bring it up when we reach 207?

MR. SCHWARTZ [Mass.]: Yes.

CHAIRMAN READ: We will continue with 206.

MR. GIBSON:

CHAIRMAN READ: Will you comment on 206?

MR. JOINER [Mich.]: Mr. Chairman, I gather it is the intention of this section (a) to endow by law the persons in a religious denomination who by that denomination itself are given the power to solemnize marriages — but to give them legal power as well as religious power at that point. Is that correct?

MR. CALLOW [Wisc.]: That is correct.

MR. JOINER [Mich.]: If that is the case, it would seem to me better to state it that way than to use the terms "rabbi", "priest", "minister", because that may not cover a number of persons of certain other denominations that may have the power to solemnize marriages. What you are really talking about is all persons which that denomination gives the power to solemnize marriages, isn’t it?

MR. CALLOW [Wisc.]: You want to strike (b)? {72}

CHAIRMAN READ: I think subsection (b) is intended to cover your point.

MR. BUERGER [N.Y.]: It’s my recollection that the Section voted to change the title of the section to Solemnization; Registration.

MR. CALLOW [Wisc.]: This is topographically in error.

MR. HELLRING [N.J.]: I want to be sure that the rest of the members of the Conference heard that. The two suggestions made by Commissioner Buerger just now are the sense of the Committee, and, actually, are changes which were made yesterday by the Committee, but somehow did not find their way into this retyping job. Thank you, Commissioner Buerger.

MR. WELLING [N.C.]: And there are numerous changes yesterday that have not been changed.

CHAIRMAN READ: If there are other mistakes, would you give the Committee a note on it, please?

MR. DAGGETT [Baton Rouge, La.]: If there is to be a section on solemnization and registration, one thing I would like to ask the Committee to consider is this problem on registration.

In Louisiana since the 1800's we have been able to register the birth of cattle, dogs, et cetera, and now in recent years, since 1914, we have registered births of humans. In recent years we registered title to motor vehicles. We still {73} have no central registration document in our State, and I don’t think there are in most states, for marriages.

We have 64 counties, which we call parishes, and to find out if someone is married you would need to check in 64 different places, and probably still wouldn’t find out. We desperately need some form of central registration. I have run into the problem several times in successions in determining heirship, and that sort of thing, and you might want to consider some rather simple form for this kind of information to be available.

CHAIRMAN READ: I think the Committee will consider that.

MR. BOATWRIGHT [Va.]: In Section 206 is it the intention of the Committee to require the participation in the ceremony of a priest or minister of some religious denomination as a prerequisite to making the marriage valid?

CHAIRMAN READ: I don’t think this section says that, sir.

MR. BOATWRIGHT [Va.]: Well, it leaves it up in the air, and I think if that’s not what you want to say, you ought to say that that is not a requirement for a valid marriage.

CHAIRMAN READ: It seems to me that it authorizes a judge to handle it, plus various religious people. It does not {74} bring in some of the other officials presently authorized.

MR. BOATWRIGHT [Va.]: I understand, but, the way it is, it looks both ways, and I don’t mean to debate the question on the floor, but it does seem to me that if you would not want to require the participation in the ceremony by the minister or rabbi, and so forth, you ought to say so. The way it is here, you can look at it any way.

MR. HELLRING [N.J.]: I’m afraid the Committee doesn’t quite understand your point, I’m very sorry to say. Subsection (a) of 206 simply provides for an itemization of those people who may solemnize marriage, and then in the second sentence states what that person shall do. And then part (b) simply broadens the permissible area, or group of people who can do it, by giving effect to the kind of thought which was expressed here by Commissioner Joiner earlier, and that’s all it does.

MR. BOATWRIGHT [Va.]: I’m sorry, but I think Mr. Manson, who is now on trial in Los Angeles, could now qualify to perform under this paragraph (b).

CHAIRMAN READ: He might. I wonder, if you still have a problem, if you could draft something for the Committee to consider.

MR. GIBSON: Mr. Chairman, may I call the Conference’s attention to a change in the printed form on page 5, which is {75} subparagraph (b) of Section 206? Line 6 of (b) should read: "Parties, one of whom is a member of a religious denomination" and so forth.

MR. STRAUCH [Tenn.]: Mr. Chairman, I wanted to say here in connection with Section 206 that we have previously recommended that we separate this into Uniform Marriage Law and Uniform Divorce Law. It seems to me that this Section 206 is another reason why it should be separated, because in 206 the marriage can be solemnized by both a civil or religious person, whereas the divorce can only be accomplished by a civil and not by any religious person. This is another reason, I think, why we should separate the Uniform Marriage Law and Uniform Divorce Law.

MR. F. T. HANSON [Nebr.]: Mr. Chairman, I have a question here. I don’t know whether it’s still true or not, but we used to have marriages among Indians by tribal customs, which is something that would not come within this religious denomination thing. I’m not sure whether we still do or not, but if we do, they ought to be recognized.

And then in paragraph (c) I have a question about the form of the proxy. What form does this proxy take? Do you take somebody’s word for it?

MR. LANGROCK [Vt.]: On the question of proxy, how big a problem is this? I have never heard of anybody being married {76} by proxy. I don’t understand it. I see all sorts of procedural problems on the point where you have to have them appear for a marriage license, and if they don’t have to appear to get married, and so on. Is it really something that we have to have, a provision for proxy marriages?

PROFESSOR HERMA KAY: The problem of proxy marriage does arise with some frequency in cases involving the conflict of laws, Commissioner Langrock, and I myself have worked on cases involving how to get a California girl married to a serviceman who is stationed in Bangkok where the only way she could be admitted to the country was if she was the wife of an American serviceman, and yet she couldn’t get married without a proxy while she was in California and he was in Bangkok, and I think you do have situations like that coming up, not with amazing frequency, but which present unusual hardships when they do arise, and I think it would be wise to include something in the draft to take care of that situation.

MR. VON HERZEN [Calif.]: Can I ask whether or not the Committee has examined the immigration law with relation to this particular subject matter?

There is a problem that could well arise, and should be considered from the standpoint of immigration, and I can assure that this problem exists. Marriages by proxy, you know, {77} are recognized under the Japanese law, among other countries. Would a man, for example, residing in California be able to have a marriage by proxy to a Japanese girl, and then have her come into the country as his wife?

PROFESSOR LEVY: I think the answer to that is yes, if you agree with the Committee that this provision is a good one.

I would simply like to add, I know, that if in the case you are talking about, that a proxy marriage was arranged between the parties so that the Japanese girl could defraud the immigration authorities and get into this country as a wife when she wouldn’t otherwise be able to under the immigration laws, they can be prosecuted for conspiracy to defraud the government, and the Supreme Court of the United States has addressed itself to the validity of the marriage and its impact on the substantive section of the marriage laws, and they have held that even though the marriage may be valid, they can still be prosecuted.

So I think if your concern is fraudulent immigration, you need not be concerned in favoring the proxy marriage.

MR. HANSON [Nebr.]: Mr. Chairman, I would move that the Committee be instructed to include in paragraph (c) a requirement as to the form of proxy, whether it’s in writing or however. {78} There ought to be some requirement here as to the form of proxy.

CHAIRMAN READ: I should think that we might say a written proxy, but a proxy is a recognized legal document. I wouldn’t think anybody would have any trouble preparing one, and I wonder if, rather than the motion to instruct the Committee — if you will accept, I will agree on behalf of the Committee to consider the desirability of specifying a form, if you will accept that.

MR. HANSON [Nebr.]: Well, I think the mere fact that we are familiar with what a proxy means in corporation law — I’m not so sure we know what it means in marriages.

CHAIRMAN READ: Will you accept my suggested modification of you motion, though?

MR. HANSON [Nebr.]: How did you want to modify it?

CHAIRMAN READ: I said that I would agree on behalf of the Committee that they will consider the desirability of specifying a model form. For example, it could appear in the comment, if it seems that there would be any real confusion about what should go in.

MR. GIBSON: Mr. Chairman, it seems to be the consensus among some of the members of the Committee here that we might take care of most of Judge Hanson’s objections if we {79} insert in line 12 here "in writing" after "authorize"; so it would read, "he may authorize in writing another to act as his proxy." That would leave it, then, that any legal form of proxy would suffice.

MR. HANSON [Nebr.]: That is satisfactory to me.

MR. DAY [Columbus, Ohio]: Mr. Chairman, I’d like to go back to Section 206 (b), "Members of a religious denomination having a special mode", et cetera. I would suggest a change in that language.

Under (a), for example, I don’t believe that there is any requirement here, and I think it’s not an uncommon practice, for people to be married by a priest, minister, or rabbi, et cetera even though they may not be a member of that denomination — maybe neither of them — and I would suggest that these should be the same way, and I would propose the language that marriages may be solemnized in accordance with the established practice of a religious denomination, without participation of persons described in subsection (a), and make it more standardized.

CHAIRMAN READ: The Committee would like to have that in writing, if you can give it to them. May we go on?

MR. WELLING [N.C.]: I have a proxy I want to execute. Do I do that before an officer of some court? Who executes this {80} document? Does he just sign it and send it on?

CHAIRMAN READ: As the draft is now written, I would say that it has no particular formalities of execution.

MR. WELLING [N.C.]: Don’t you think something this serious — entering into a marriage situation, where you can possibly have children — that we ought to at least find out who the man was, and if he is the man?

CHAIRMAN READ: If you have a suggestion, would you submit it in writing? Thank you.

May we continue, then, with 207?

MR. GIBSON:

MR. SCHWARTZ [Mass.]: The thrust of sub (3) in line 7 is that marriages between uncle and niece are prohibited, because the resulting children may be defective. Have you also considered that they also might smack of incest?

CHAIRMAN READ: I don’t think it can be incestuous if it’s a permitted marriage.

MR. SCHWARTZ [Mass.]: What I’m saying is that we really are talking about a question of fundamental morality, and not merely of defective children.

MR. HELLRING [N.J.]: The Committee had the benefit of a great long list of advisors in many fields on all aspects of the draft. We had advisors from the clergy. We had advisors from the field of anthropology. We had a group of sociologists, psychiatrists, geneticists. We had legal advisors and consultants, and I think it’s important for the Conference to know that we have been subjected to this kind of exposure over the past two and a half years.

Now, among the groups of advisors were advisors who talked to us about this problem of genetics, and to the extent {82} that we received any advice from them in this particular area it was that the possibility of defective children in this kind of situation is highly remote, and that the whole new thinking in the field, indeed, was such as to make even the presence of subsection (a) (3) questionable.

However, we felt that we’d compromise on the problem by putting the section in, so that persons of this degree of consanguinity — or, rather, this degree of relationship — an uncle and a niece, or an aunt and a nephew — would be exposed to an opportunity to consider the question.

The marriage between such persons is not here prohibited to any extent. It merely is in here for the purpose of exposing them to an opportunity to consider it, and to bring either the proof of (a) (3) (i), or else the simple proof that they have consulted a qualified genetic counselor.

Now, the mere consultation is all that’s necessary. They may decide to get married no matter what he tells them according to the way this reads, and we want you to understand that such a marriage has not been prohibited by this section, and if there is any different view, it should be debated here. It was the view of the Committee that on this question of the morality, or incestuousness, or whatever you want to call it, this was the position that the Committee should present to the {83} Conference.

MR. SCHWARTZ [Mass.]: Have you found there was any strong revulsion against such marriages in the course of your studies?

MR. HELLRING [N.J.]: Perhaps Professor Levy would comment on this. He’s done a good deal of further research in the field.

PROFESSOR LEVY: There is today one state in which uncles and nieces of a particular religious persuasion are permitted to marry, if they are a part of this group in the religion — the Jewish religion — which believes in such marriages. However, except for that Rhode Island statute, I don’t think there is anything that could be called a trend toward favoring uncle-niece and aunt-nephew marriages.

On the other hand, there is, I personally believe very strong trend both in the marriage laws and in the incest criminal laws to, in general, relax the prohibitions and to specifically permit first cousins to marry. I can’t at this moment give you, although there is some material in my monograph where I could count noses — I can’t do that off the top of my head, but there is no doubt in my mind that the state legislatures are responding to the requests in the literature of the last two decades for a relaxation of the incest prohibitions, and are permitting first cousins to marry. {84}

Moreover, there is in the courts increasing recognition of first cousin marriages when the parties do what they ordinarily do when there is a prohibition in their home state — namely, they run across state borders to marry — and that, combined with increasing recognition of the cost of prohibiting marriages — namely, saying that people who may have lived together for a long time aren’t married — have brought the legislatures, I think, to an increasing acceptance of first cousin marriages.

MR. SCHWARTZ [Mass.]: I’m talking about uncle and niece, not about first cousins.

PROFESSOR LEVY: I think that Mr. Hellring’s statement is all that — I have nothing to add to his statement on that.

MR. SCHWARTZ [Mass.]: Then I take it you have found no general revulsion against such marriages.

I still would like to find out what a qualified genetic counselor is.

MR. HELLRING [N.J.]: Those who have advised us have said there was no reason to prohibit the marriage. I have made no other study of it. None of us have, except for the advice we got from them.

Someone here raised the question of marriages between {85} persons of the same sex. The Committee had not considered it appropriate to make any mention of that issue in this draft, but, of course, if the Conference has the view that there ought to be some mention of it, this is the place to prohibit it, if you think any mention of it needs to be made.

PROFESSOR LEVY: I would simply like to add that there are such things as a qualified genetic counselor. Indeed, I have in my file at home — unfortunately — a book which lists worldwide all the genetic counselors. One thing that is not a genetic counselor — and I’m sure the comment will reflect this — is a doctor, who, the genetic counselors claim and complain, frequently put themselves out as genetic counselors, and we will make that clear in the comment too.

It perhaps will make you somewhat easier about this section when I suggest to you that the pamphlet which lists all the qualified genetic counselors in the entire world is a very, very thin pamphlet.

MR. MILLER [La.]: I would like to suggest that we affirmatively prohibit marriages between people of the same sex. The property aspects, if nothing else, or the property implications of any such attempted marriage would lead me to believe that we definitely ought to make clear that that is a prohibited marriage. {86}

CHAIRMAN READ: I think it requires a motion to really bring that subject before us.

MR. JOINER [Mich.]: Well, in order to bring it before the house, I move that such a provision be inserted at this point.

CHAIRMAN READ: You are moving in favor of the permissibility of marriages between members of the same sex? [Laughter]

MR. JOINER [Mich.]: No, prohibiting — putting a prohibition in here.

MR. HELLRING [N.J.]: Could we simply say that you would have another number as part of subsection (a) which would provide simply that a marriage entered into between persons of the same sex — ?

MR. JOINER [Mich.]: Yes.

MR. SCHWARTZ [Mass.]: May I speak against the motion, if it’s before the floor? [Laughter]

I can’t conceive of any judge saying that we’re talking about marriages between people of the same sex. Secondly, such a prohibition would give implied sanction to homosexuality.

CHAIRMAN READ: There is some current litigation as to whether Acts which read, perhaps, not too differently from this permit marriage between persons of the same sex, and therefore I suppose it would be pertinent to face the issue one {87} way or the other here, in order to make it clear.

MR. SACHSE [Wisc.]: That might be the best solution to the population explosion and pollution control. [Applause]

MR. CUNNINGHAM [Md.]: I suggest that the prohibition be in the form of a definition of the word "marriage", rather than in here.

MR. CALLOW [Wisc.]: I think we agree that it would be better placed, or at least we surely should consider placing it in the earlier sections as well, if not solely there, because if we are talking about marriages between persons of the same sex, it would suggest that we believe that such a marriage could be a marriage except for the prohibition, and I think we might put this prohibition in Section 203; but we will be glad to write it into the appropriate sections of this Act, if it is the consensus of the house.

MR. DAGGETT [La.]: In Louisiana we have embarked upon a law where we have a problem to find out today how you decide what sex they are. [Laughter] It refers to such notables as Miss, Mr., or Mrs. — whatever it is — Christine Jorgensen, for example, with his Denmark operation.

We have a statute in Louisiana which permits the changing of a birth certificate from male to female under various rigorous medical requirements, where the medical profession {88} certifies a person that has male plumbing, but is otherwise totally female, may have these necessary surgical alterations, and then be declared female, including the change of the birth certificate from male to female.

Such items appear in publications like Time magazine, I notice, that Mrs. Christine Jorgensen, I believe, is living a very happy married life in Connecticut as Mrs. Somebody-or-other. So these problems do occur in a very special medical and scientific context, totally aside from any homosexual or Lesbian relationships, and there is a special provision for.

CHAIRMAN READ: I take it Commissioner Joiner’s motion is directed to people of determinably the same sex. [Laughter]

MR. MILLER [La.]: I suggest it is a drafting problem. I think the suggestion that it be in the definition of "marriage" is appropriate, without trying to draft the language here.

CHAIRMAN READ: I think we want a vote on the policy. We’ll find a place to put it, I’m sure.

MR. ABRAMS [N.J.]: In connection with homosexual relationships I think there is another consideration for the Conference, not by virtue of the Marriage Act, but by virtue of criminal statutes. What is the attitude of the Committee on sanctioning a marriage relationship which puts the people in violation {89} of the criminal law?

MR. CALLOW [Wisc.]: We’re prohibiting it.

CHAIRMAN READ: The motion is to prohibit it. It could lose.

MR. ABRAMS [N.J.]: I’m speaking to the motion. If we are going to prohibit a marriage that constitutes criminal activity, then it seems to me that we ought equally to prohibit all other relationships that are criminal as well. Why not prohibit all relationships which are criminal under the law? We have incest laws, for example. I don’t know what they are exactly in my State. I wouldn’t be able to pretend to know exactly what relationships are incestuous; but this statute authorizes such marriages.

CHAIRMAN READ: I don’t think it does. I think the trend in criminal law is in favor of recognizing homosexuality. Most of the modern criminal statutes passed in recent years do so in the case of consenting adults. Whether we have to have a special provision for persons under the age of 16 to satisfy Commissioner Langrock, I don’t know, [Laughter] but I think if we directly reach this problem, I suppose the repealer in each State is going to have to take into account some kind of a tie-in between the marriage law and the criminal law.

MR. MILLER [La.]: Beyond the criminal aspect, it has {90} inheritance or succession implications. If, indeed, it is a valid marriage, the mere fact that it may be a violation of the criminal law would not necessarily affect those property rights.

CHAIRMAN READ: The motion, then, is to prohibit marriages between persons of the same sex.

[The motion was put to a vote and was carried.]

CHAIRMAN READ: That motion is carried, and appropriate language will be drafted.

MR. WALSH [Minn.]: I’d like to refer to subsection (3). This genetic business, as Professor Levy mentioned — I don’t think it has much relevance to the question. Mr. Schwartz raised the relevant point. It’s an ethical problem, and we can only go one way or another on it, and I would move that the Conference delete all the language in line 8 beginning with "unless" and all the language in lines 9, 10, 11, and 12.

[The motion was seconded by Mr. McKusick.]

MR. LANGROCK [Vt.]: I’d like to speak against that motion, just from experience in the past year. I have a client home who wishes to marry his niece, approximately 70 and 50. They have been living together for many years, and would like to legitimize their relationship. They are not going to change their habits of living together, but they would feel a lot better {91} about it if it was permitted.

I think this is a picture that has repeated itself. Where there is no genetic problem, and we are talking about individuals who want to legitimize a relationship which already exists, it certainly doesn’t offend my morals.

MR. McKUSICK [Maine]: I wonder if Commissioner Walsh would accept an amendment of his motion to strike only lines 11 and 12. It seems to me that an added objection to this provision is the foolishness on the face of it of this rigmarole of merely having consulted a paraprofessional group — an ill-defined professional group — called qualified genetic counselors.

The counselor may tell them that they are going to have clearly defective children, but that doesn’t make any difference. I would suggest that that ought to be eliminated at the very least as a basis for getting a court order which is nondiscretionary on the part of the court, and I would assume that in the situation that the Commissioner from Vermont pointed out, possibly a court could be satisfied that there would be no offspring from this marriage.

CHAIRMAN READ: Commissioner, will you accept that amendatory motion?

MR. WALSH [Minn.]: No, I would not. I agree that paragraph (ii) doesn’t make much sense, but even with that deleted my {92} objection stands. This is an ethical question, a social question, and it’s a question that must be decided on the basis of our individual convictions.

CHAIRMAN READ: You are not obliged to accept the amendment.

MR. McKUSICK [Maine]: I will support this motion as a full-blown motion, but I would propose to present the motion, if it fails, in more limited form.

MR. MERRILL [Okla.]: Mr. Chairman, may I, before you vote, rehearse to you the practical situation out of which this provision arose?

It was called to our attention in the course of the debate and the consideration of this part of the Act that there is a situation in Rhode Island with a certain group of the Jewish persuasion whereby marriages of this type are legal and customary, and it was called to our attention that we should not write into the Act a uniform provision which would upset that situation.

MR. NEEDHAM [R.I.]: In one of my backgrounds I have had the privilege of being associated for most of my 20 years with members of Jewish persuasion in the practice of law. It is true that this provision does exist in the State of Rhode Island, and that marriages are permitted in the State of Rhode {93} Island within this degree of consanguinity. The number of those marriages, or the desirability when we consider them the broad scope in the ethical vein, I think, is before this Conference, particularly when the Conference is going to extend a provision which exists only in Rhode Island, and only in Rhode Island among people of Jewish persuasion. You are not limiting the application in the Uniform Act to people of Jewish persuasion. You are saying that any aunt and any nephew or any uncle and any niece, regardless of their persuasion may lawfully contract a marriage, as they now do in Rhode Island.

Clearly, gentlemen: We are the only state that has this provision, and I suggest most respectfully — I think, with consent of my Jewish associate present with me — is it wise to extend a provision which is in Rhode Island, and we’re the only one, and make it the uniform provision for the other 49 states? I personally don’t think it is.

MR. HELLMAN [R.I.]: If I may add just several words to Tom Needham’s statement, to the best of my knowledge — and I have been wracking my brain ever since he asked me ten minutes ago — there have only been two cases that I know of where anyone in Rhode Island has ever used that provision. As a matter of fact, one of the couples was not a Rhode Island couple. Brother Schwartz may remember the case, because they were from {94} Massachusetts, and they moved back into Massachusetts, were tried for, and convicted of, incest.

It hasn’t been a particularly viable provision, and frankly, I don’t think it has an awful lot to commend it, based on the Rhode Island experience. If the Commission does wish to adopt it, I’m afraid they are going to have to have broader policy grounds.

MR. CALLOW [Wisc.]: The Committee is for taking it out. I would say from the Committee’s point of view that we will probably support taking it out, because we have been enlightened by comments from the floor that were not generally known to us before, and at least this half of the table, I am satisfied, will support the motion.

MR. EASTAUGH [Alaska]: Rhode Island is not the only state with the problem. The natives of Alaska are a matriarchal society, and such marriages are accepted.

Also, the proposal of the Committee, as pointed out by my colleagues, does not distinguish between marriages between those relations and those by marriage in the uncle-niece and aunt-nephew category.

MR. LANGROCK [Vt.]: I don’t mean to talk too much, but I’m a little bit surprised at this tone of moral indignation at the prospect of the aunt-nephew and uncle-niece situation. {95} This is a recognized marriage in many, many countries in the world, and in the Western World, and why we have what I would consider such a very puritanical sense about it in the group — well, I’m surprised.

These people are free citizens of this country who wish to form a relationship and legitimize a situation, and if there is no genetic risk here, who are we to impose our archaic value system upon them and call it incest? If we are trying to prohibit a series of genetic mistakes, that’s all right; or are we trying to impose some moral code on people who may not subscribe to it?

I would like to move to amend the motion by striking out all of Section 3, and simply throw it open to uncles and nieces to marry.

CHAIRMAN READ: Hold your motion. I’m sure if the other amendment wasn’t acceptable, that’s not.

MR. LANGROCK [Vt.]: My motion is to amend the amendment. I don’t like the language of the genetic counselor, and all that. My question is —

CHAIRMAN READ: We are still on the motion first made, without amendment, and I think your motion requires separate action. I think we are about ready to vote, but before we do, I think we should be certain that the expression of the {96} Committee sentiment is clear, if there is going to be a vote; so if you will all hold on for just a moment, we’ll check this out.

[The Committee conferred.]

MR. HELLRING [N.J.]: The Committee has polled itself just now, and in view of the expressions here the Committee, with very little dissent, is prepared to support the motion. This provision was in here, as I told you, at the beginning, largely — well, not largely — entirely from the advice of the advisors, the committee of advisors we had, who told us there was no problem in this kind of a marriage; but in view of the ethical question that has been raised, the Committee, with very little dissent, is prepared to support this change in the section.

MR. VON HERZEN [Calif.]: What are we doing now?

CHAIRMAN READ: The motion is, in subsection (a) (ii) of Section 207, delete line 8 starting with the word "unless" and delete all of lines 9, 10, 11, 12.

MR. WALSH [Minn.]: I would comment that I would not, and I doubt if anyone else would object, to a provision for special and unique social groups continuing their special and unique marriage relationships; but for a general standard for the country, I would stand by the motion.

MR. MILLER [La.]: I’m confused on the motion. Does the {97} Committee favor the deletion of the entire subparagraph (3)?

MR. HELLRING [N.J.]: No, no!

CHAIRMAN READ: The motion which I understand the Committee to be in favor of is to delete, starting with the word "unless" in line 8, and running to the end of line 12.

MR. LANGROCK [Vt.]: That would interdict all marriages of uncles and nieces.

MR. NEEDHAM [R.I.]: If we have a particular problem in Rhode Island, we will take care of it, but we in Rhode Island support this amendment.

[The motion was put to a voice vote.]

CHAIRMAN READ: I’m in doubt, but the Committee has already given you an idea of what they want to do. Rather than take time to count, will you accept the Committee’s agreement to reconsider it? I think they might also consider the possibility of bracketing whatever is left when they get through. Will you accept that?

MR. McKUSICK [Maine]: I call for a division.

CHAIRMAN READ: A division has been called for.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion carries 47 to 28.

MR. VON HERZEN [Calif.]: Mr. Chairman, did I understand the Chairman to say that the Committee is considering bracketing {98} all of section 207?

MR. HELLRING [N.J.]: No.

MR. VON HERZEN [Calif.]: Well, then, let me make a suggestion on the remainder of Section 207.

It is entitled "Prohibited Marriages", and the wording is that certain marriages are prohibited. I am unable to find anywhere a sanction for violation of the prohibition.

Now, if a law is drafted from the standpoint of the negative, such as we have here, where the negative is affirmatively expressed — this conduct is prohibited — normally you find a sanction for violation of that prohibition. There may be instances where this isn’t done, but I think ordinary legislative drafting requires such a sanction.

I would suggest to the Committee that, instead of having a prohibition such as you have in Section 207, you find an affirmative way of placing it in Section 203, or one of those early sections, wherein you permit marriage affirmatively between certain people, certain persons. If you wish, you might say that marriage is permitted between persons of the opposite sex, and so forth, rather than having a section here which prohibits a marriage and then has no sanctions.

MR. CALLOW [Wisc.]: We picked that up. That’s where we are going to put it, in 203. {99}

MR. SACHSE [Wisc.]: Was it your intention to include nieces and nephews by marriage as well as by blood?

MR. HELLRING [N.J.]: No, of course not. Absolutely not!

MR. SACHSE [Wisc.]: Well, is the daughter of your wife’s sister your niece, or isn’t she? Is she your niece? If she is, then you have prohibited —

MR. HELLRING [N.J.]: Well, we’re going to solve that. Now that we have made this change, we will have to deal with it, of course, in the drafting.

Incidentally, in connection with Commissioner Von Herzen’s questions, the view of the Committee was that the sanction, of course, was invalidity of the marriage.

MR. HILLMAN [R.I.]: I’d like to raise the consanguinity problem in another light: stepbrothers and stepsisters. These days we have more and more families living with his children, her children, and their children, and his children are not by blood in any way related to her children. I wonder if the Committee would consider permitting the marriage between stepbrother and sister.

CHAIRMAN READ: I take it it’s permitted, because it’s not prohibited.

MR. HILLMAN [R.I.]: Well, they are brother and sister for most purposes. {100}

CHAIRMAN READ: I don’t think so.

MR. JOINER [Mich.]: If it is the intention that marriages entered into under section (a) (1) are void or to be declared illegal, isn’t it quite proper that a marriage that is entered into prior to the dissolution of a prior marriage in which there [has] been a dissolution of the marriage — that it ought to be considered an appropriate marriage?

On November 1 two persons were married, but the marriage of one of them on an earlier occasion was not dissolved until December 1. Nothing happened. They lived in good faith, and go on now, and it seems to me quite appropriate that, the marriage having been dissolved —

MR. HELLRING [N.J.]: Are you suggesting that upon the effective date of the dissolution of the prior existing marriage, the nascent marriage should suddenly spring to life?

MR. JOINER [Mich.]: It seems to me that is appropriate.

MR. HELLRING [N.J.]: It is a concept we had not considered, and if you have some suggested language as to how to solve it , we’d like to hear about it.

You might take a look at the problems contained in Section 209 when we get to it. There is a section which was also the subject matter of a great deal of debate, the subject matter of a putative spouse, and that may solve the problem {101} which you raise.

MR. CALLOW [Wisc.]: I have talked to some of the members of the Committee, and I think we have an oversight which we would like to correct, and that is that, obviously, the half-brother — half-sister relationship, in the judgement of most of us, should be prohibited, and we will give due consideration to that and write it into the Act, although it is not prohibited at this time.

CHAIRMAN READ: May we continue, then, with Section 208?

MR. GIBSON: [After conferring] It has been suggested that I announce that this section is placed in here in lieu of — in substitution of — an annulment section, to give effect to an annulment, or what would usually be thought of as an annulment action, on a marriage.

CHAIRMAN READ: Will you comment?

MR. SULLIVAN [Id]: Mr. Chairman, just a correction, I think. On page 7 in line 12 it states "or was between the ages of 16 and 18". If you recall, in the Section meeting yesterday we made the change that it would be only at age 17. Therefore, it should be revised to say only 16 and 17.

CHAIRMAN READ: The Committee accepts that.

MR. SULLIVAN [Id.]: I raise the question of an absolutely prohibited marriage, such as between a sister and a brother, or a descendant and an ancestor, or an uncle and a niece, et cetera. As I read this section that we are now considering, {105} if neither one of the parties of such a prohibited marriage questions the matter, no one else could.

MR. HELLRING [N.J.]: We just recognized that here. This is really a typographical error resulting from an oversight due to a change in the section made at yesterday’s meeting.

MR. SULLIVAN [Id.]: I don’t know who else should have the right to do it. I would think that the state itself should have the right, and perhaps collaterals, but it ought to be somebody other than the parties to the prohibited marriage.

MR. MILLER [La.]: In that same light, one of the grounds for challenging a marriage appears to be mental incapacity of one of the parties. It would seem that one of the defenses is continued cohabitation. I would assume that the lack of capacity could be raised on behalf of the other party, and I wonder whether continued cohabitation by one under this kind of a disability should be a defense to the petition.

MR. CALLOW [Wisc.]: We have already considered taking that out.

MR. WELLING [N.C.]: As I read the Act and this section, subsection (a) of 208 spells out the marriages that can be annulled or declared void, and you speak of the lack of capacity, and then you define it as mental incapacity or infirmity, et cetera. I see no provision where one of the parties to the {106} purported marriage is already under the disability of a prior marriage that has not been dissolved.

CHAIRMAN READ: I think that would come under subsection (4) of section (a).

MR. WELLING [N.C.]: That is telling about who has the right, the way I read it, to come under subsection (a) to have the marriage declared void.

PROFESSOR LEVY: (a) (4).

CHAIRMAN READ: Line 15 on page 7.

MR. CUNNINGHAM [Md.]: I’m not sure of the effect of c) and the death idea. Is this sort of a dead man’s statute concept there?

In other words, take this hypothetical. The young, wealthy man gets married to the gold digger, and five hours later is killed in an auto accident. You are preventing this marriage from being declared invalid, I think.

CHAIRMAN READ: I think that’s the intention, yes.

MR. CUNNINGHAM [Md.]: Do you like my hypothetical?

CHAIRMAN READ: I don’t think that your hypothetical is the one that the Committee would think best describes what they were driving at. I think they are trying to avoid a review of the validity of every marriage after death.

MR. WELLMAN [Mich.]: Is a court decree of invalidity necessary {107} in relation to a 207-prohibited marriage? You say it is.

CHAIRMAN READ: The Committee indicates yes.

MR. WELLMAN [Mich.]: Well, now, if you do not have a court decree, that means that the marriages you prohibit under 207 are considered marriages.

MR. HELLRING [N.J.]: No, but remember Commissioner Von Herzen’s question about sanctions. Here is an opportunity to give them the sanction, so that you have a clear-cut rule in it. It isn’t enough just to say it is prohibited. We felt there ought to be a provision that gives you the machinery.

MR. WELLMAN [Mich.]: But you have a statute of limitations on here. It must be filed no later than.

MR. HELLRING [N.J.]: When that question was raised earlier, one of us commented that that, unfortunately, was the result of a typographical error, resulting from a last-minute change, and I do not think the time limit was intended by the Committee to apply to that, and we have that under consideration.

MR. WELLMAN [Mich.]: You don’t mean the structure of the parties, nor the time limit, on marriages declared invalid for 207 reasons? And therefore you do not need a court decree on 207 marriages. It is invalid, and may be so declared at any point.

MR. HELLRING [N.J.]: Yes, that is certainly true, but {108} providing for a machinery for a declaration of invalidity will give many parties the kind of sanction that at least provides for a civil sanction, and clarity of title, so to speak.

MR. WELLMAN [Mich.]: I think if you delete line 15 of the section we are working on—

MR. HELLRING [N.J.]: We will certainly take your suggestion into consideration as we review the drafting of this section.

MR. JOINER [Mich.]: Mr. Chairman, I want to follow up on this a little bit and tie it down to a specific set of facts.

Suppose a brother and sister marry. They get married whether it’s legal or not. It says it’s prohibited, but they get married. Nothing happens. There is no decree, but there is a death. At that point what happens to the property? Does it follow under the marriage? Are they married at that point, or are they not married?

MR. CALLOW [Wisc.]: We feel they are not married, but we need to work on this section again, there’s no question about it. This was a ten o’clock last night problem that we ran into.

MR. ABRAMS [N.J.]: Is it the intention that no collateral attacks can be made on these marriages?

CHAIRMAN READ: Yes, I think that’s the intention.

MR. ABRAMS [N.J.]: How about a wrongful death action? {109}

CHAIRMAN READ: I think it should be clear that the Committee has said that it needs to rework the provisions that relate to 207 marriages which are prohibited. Otherwise there is no collateral attack, and so on. That’s intended.

MR. VON HERZEN [Calif.]: Mr. Chairman, in view of the discussion here, it seems to me what you have really stated in 207 — you have used the word "prohibited", but I think the intention is that the following marriages are void. This is in effect what you are just now stating.

MR. HELLRING [N.J.]: Some of the members of the Committee feel that (a) (4) under 208 may not be necessary at all, which is the sense of some of the discussion here. In other words, there need not be a tie-in between Section 207 and Section 208. It was thought when Section 207 was finally brought in after much debate to be put into the Act, after an overwhelming vote of the Committee, that in the drafting of it yesterday perhaps we ought to include a tie-in between 207 and 208, but we have not had an opportunity to give that mature consideration.

MR. VON HERZEN [Calif.]: I’m saying that in a civil statute using the word "prohibited" is not near as good as using the word "void", so that the contract becomes no contract.

CHAIRMAN READ: The Committee will consider that.

MR. JOINER [Mich.]: Mr. Chairman, if you do not have a tie-in {110} between the two, if you want the result that you have expressed that you want anyway, you have to use the word "void" or some such language as that.

I read it the other way, and I had thought the better policy went the other way when I read it to begin with.

MR. HILLMAN [R.I.]: That’s the reason why it was included this way, because it was recommended to us by the Reporters, and it was the view of some of the members of the Committee that the policy would be better the way you have expressed it.

MR. DUNHAM [Ill.]: Do you want a motion one way or the other? Because I think the Committee’s view — the view as expressed here that there is no collateral attack — is the better view.

CHAIRMAN READ: We’ll be pleased to have a motion.

MR. DUNHAM [Ill.]: I’ll make a motion that it’s the sense of the house that there should be no collateral attack on 207 marriages.

MR. HELLRING [N.J.]: And that the present structure, as reworked, should be used?

MR. MILLER [La.]: I’d like to speak against that. I’d like to speak against such a motion being applicable to all of 207. There certainly ought to be permitted a collateral attack with respect to marriage between a father and a daughter. {111} I think you are hitting with too broad a swath in thinking that under no circumstance, as to none of the void marriages, could there be collateral attack.

PROFESSOR LEVY: I’d like to clarify one thing here with respect to the motion.

In the first place, we have to have some clarity about what collateral attack may mean. If you will notice, for example, under 208 (b) (4), the legal spouse is entitled to collaterally attack one of the 207 marriages; namely, the 207 (a) (1) marriage.

Also, there is nothing in the statute which prevents the kind of collateral attack and the sanction of a criminal prosecution for bigamy or a criminal prosecution for incest. That’s the kind of collateral attack that this statute takes no position on, and the Committee did not want to take any position on that. That kind of collateral attack is the most effective sanction for the kind of behavior that is prohibited by 207, will still be available, and will be the primary sanction against that kind of marriage.

The question we’re really talking about is: What kinds of collateral attack should be permitted? And it was the intent of the Committee [to] not permit collateral attacks which have primarily economic consequences on the parties to even a {112} prohibited marriage after the death of one of them. So, for example, in the case that Mr. Langrock mentioned, his couple in Vermont, if they do go into a court and get a license, which they can get if they happen not to mention that they are uncle and niece, and then the old man dies, should it be possible for his siblings after his death to try and get his property away from his "wife" by virtue of the provisions of 207 (a)?

I understand Mr. Dunham’s motion to try to confirm the position of the Committee here; that is, that most forms of collateral attack, other then the ones I have mentioned as being permissible and continuing, should not be permitted.

CHAIRMAN READ: The motion, then, is for the sense of the house that there should be no collateral attack.

MR. SULLIVAN [Id.]: I’d like to ask a question about this. If I understand Mr. Dunham’s motion correctly, it would prohibit any collateral attack on a 207 marriage. But how about where a man is married to a woman for several years and runs off with some gal and marries her under her assumption that he is single, and then gets hit by a truck? Does this motion mean that his legal spouse cannot attack that marriage?

CHAIRMAN READ: No. I was trying to state Commissioner Dunham’s motion as explained by Professor Levy, with a sort of a definition of the kind of collateral attack we are {113} talking about, that, basically, I think we’re trying to exclude the economically motivated collateral attack usually incident to death. Is that right, Allison?

MR. DUNHAM [Ill.]: Yes. As I understand Commissioner Sullivan’s case, that’s taken care of specifically by saying the legal spouse may attack.

CHAIRMAN READ: Yes.

MR. DUNHAM [Ill.]: And that’s all right. But I would think that the defendant in a personal injury action on wrongful death should not be able to say: I don’t have any liability because the only surviving member of the category is this void spouse.

CHAIRMAN READ: Correct.

MR. CALLOW [Wisc.]: Mr. Chairman, I’d like to move to table this, to give us a chance to work on it and present it to this Conference later in our deliberations. I simply don’t feel that we have knowledge enough of our intent or our desires in the working language that we have to come to a vote that would be informative and useful to this Committee, and I would move to take the priority of the motion to table.

CHAIRMAN READ: Is there objection to tabling? [No one responded.] Hearing none, the motion is tabled.

MR. JONES [University, Ala.]: In your reconsideration here of the {114} hypothetical that Commissioner Cunningham presented, it seems to me in the light of your rather limited period of statute of limitations here you might permit reconsideration after death of some of these other marriages — primarily the man who is under the influence of drugs, and five hours later he’s killed.

CHAIRMAN READ: I take it that would be part of the Committee’s reconsideration.

MR. GIBSON:

If I may proceed just a moment, I will read Section 211, which is really part of the problem of a putative spouse, or the whole problem that is raised in connection with a putative spouse. I’m skipping Section 210 for the time being, and reading alternate Sections 211. Both of them are bracketed.

MR. MILLER [La.]: What have you done with 209?

MR. GIBSON: We are considering 209 in connection with 211. I’d just like to read these first. {115}

There are three versions of 211:

MR. SULLIVAN [Id.]: We had a lot of discussion in Chicago and again here during the Section meeting about 209. I think 209 really opens up a can of worms. Professor Kay informed me that if a man dies having two or three brides at the time of his death, they divide the property up, one way or another. I think that is by case law in California, as I understand it. Is that correct?

And I think that the only thing you can do is that if a person is not married to a woman under the terms of this Act, then there should be no legal consequences flowing from an illegal or invalid or void marriage. I think we’re going to get into a lot of trouble, and unless this Conference is willing to spell out the legal consequences that will flow, both economic and otherwise, from a void marriage, that 209 is going to {116} cause more trouble than it’s worth.

I would move at this time that Section 209 be stricken.

MR. MILLER [La.]: May I be heard on that before the vote is taken?

I might add that at lunch somebody said that there had been a Louisiana problem, partly accounted for by the fact that the Louisiana representatives didn’t appear and speak and participate. I’m afraid that DeVan Daggett and I have created an opposite problem, because we are speaking, perhaps, far too often.

However, the putative marriage problem is one that we have had in Louisiana quite an experience with, and it might help if I could pose a few of the Solomon-like decisions that are necessary to result.

The speaker that just spoke, of course, was exactly right, in that you surely cannot deprive the legal wife of her rights by vesting them in a putative wife, and the problem will come particularly in the instances of 207 (1) — that type of putative marriage — where the wife did not know that the husband was really married, and in good faith married him, but there was a legal wife. Under those circumstances it’s our experience in Louisiana that that innocent putative wife should {117} have some rights, should have some protection, and it would be unwise to follow the suggestion of the last speaker and say in all circumstances the putative wife had no rights.

On the other hand, what should be the relative balance between the legal wife and the putative wife? Now, one of our courts had this situation, and handled it in this fashion. There happened to be no children by that first marriage — by that legal marriage — and in our State we have community property. The husband owns half, and the wife owns half, and that husband took on a putative wife, and the court handled it in this fashion: The court took his half of the community property and gave it to the putative wife; and in that instance the legal wife and the putative wife were both protected.

I can’t suggest on the floor how it should be handled, but it’s not just a clear-cut, white or black situation. There are gray areas, and I think it deserves some reconsideration by the Committee, to find the balance of the respective rights between a legal wife and a putative wife.

MR. MERRILL [Okla.]: Mr. Chairman, I should like to comment a bit on the motion and Judge Miller’s very able comment.

I do have this to say, that it is a problem which I think is impossible to solve in vacuo. You have just too many variations on the situation that may come up, and I think {118} therefore, that the Committee has arrived at the soundest solution with the section on putative spouse as it now stands, because it does leave to the court the problem of how we adjust the property in the particular situation which we have before us. I just think it would be impossible to work out a code — it’s like Jeremy Bentham’s idea that he ought to be able to fashion a code for every man’s vest pocket, and when he had a situation arise, he could pull out a little booklet and look at it, and it would tell him what the law was, and he wouldn’t need a lawyer.

Unfortunately, as we all know, human situations are not that simple, and particularly un-simple is this multiplicity of situations which may arise out of the gay deceiver — male or female — who is able to fool two or three persons of the opposite sex and maintain over a period of years two households.

Now, I simply do not think it is possible for this Committee or any other committee that might be named by this body to work out the exact relationship in regard to the division of property that might arise by virtue of having a legal spouse and one or two — I think in the ordinary case you wouldn’t get more — putative spouses.

MR. MILLER [La.]: I have some suggested language that I think might help: "with due regard to the rights of the legal {119} wife, if any" — some words to that effect.

MR. MERRILL [Okla.]: Thank you. We will take that under consideration, although I do not offhand think that this adds much, if you don’t mind my saying so. You still have the can of worms. But I would urge very strongly upon the house that there are complex problems here. There are innocent parties, children and others, the spouse, herself or himself, who in one way or another have interests that ought to be protected, and I would strongly oppose the motion to delete the putative spouse concepts.

MR. HILLMAN [R.I.]: Mr. Chairman, may I speak in support of the motion?

I think back to a case I handled some years ago involving a bus driver who had a wife at every stop — well, not every stop, but he had four of them — and if you adopt this concept of 209, what do we do with dower? He had children by all four of them, I might add. Do each of the wives get a dower interest in states with dower? Who gets the widow’s allowance in the state, No. 1, 2, 3, or 4, or all of them? Or do they divide it?

I’m afraid that this putative wife concept creates quite a quagmire for us, and I speak in support of the motion, thinking it would be more appropriate left out, and perhaps {120} given very detailed and serious consideration as a separate piece of legislation.

MR. RUUD [Austin, Tex.]: I think we need to distinguish several questions. In Section 207 we are dealing prospectively. We are trying to prevent by law the establishment of a husband-and-wife relationship. When we come to Section 209, we are looking past. We are looking back. A relationship in fact has existed, and the question is: What now should be done, and what recognition, if any, should be given? And Section 209 says: We should recognize the fact that a relationship has existed.

But we qualify it. We give recognition — we give rights — only to the innocent person.

Now, if you want to punish the innocent person who in good faith has behaved as a husband or wife out of some kind of moral notion, I suppose we’re entitled to do that. I think we should. I think there is a great deal of wisdom in Section 209.

Now, a third problem is the one Judge Miller has referred to, and the last speaker referred to. There are complex problems of working out what you do with the property. I have a feeling that we can solve that. There’s nothing wrong to giving dower, or some approximation, to four people. There {121} may not be much to divide, but it seems to me we can develop that kind of a solution.

I would hope that the Conference would reject this motion.

MR. SULLIVAN [Id.]: Frankly, gentlemen, it terrifies me to get into a legal dispute with Dean Merrill, but he says we can leave it to the courts to apportion it out in an equitable manner.

I would call your attention to the language in line 3 of Section 209: "A putative spouse is entitled to all rights conferred upon a legal spouse". That deprives the court of any discretion of any kind.

I would like to point out further that this section has nothing to do with children. We’re talking about a putative spouse, a person that is not in fact married to a man. As I said before, I think it opens up so many complex legal problems which under the terms of this are unfairly resolved without any discretion in any court, that I just think by striking it out of here we’re in much better shape so far as this Act is concerned. If California and other states have judicial remedies whereby they can exercise equitable discretion in apportioning out property left that way, then I think we are going to have to {122} spell it out here. But to put it in the language that we now have in 209 would be a great mistake.

MR. HELLRING [N.J.]: Mr. Chairman, I think that Judge Gibson, after reading 209, went on to read all three alternative versions of 211 in order to emphasize to the Conference that this entire problem has obviously been the subject matter of a great deal of debate within the Committee, and I think it’s fair to say, a considerable amount of disagreement among the members of the Committee.

Certainly, with respect to the three versions of Section 211, which deal with the more generalized question of common law marriage, you can see that there was not enough unanimity to adopt one or the other position, and so all three of them have been offered in the alternative, either to accept common law marriages as is now the case in 13 states, or to say common law marriages are invalid, as is now the case in the rest of the states — and while I say that is the case in the rest of the states, it should be pointed out that in many of those states where common law marriages are supposedly invalid, they are to some degree recognized for certain purposes, such as Social Security and other purposes.

But in the light of this difference of opinion is this decision which you are now raising on the floor, and the {123} issue pointed up by Commissioner Sullivan’s motion is an issue on which many of us on the Committee feel we need guidance from the Conference. The concept of a putative spouse, while not the same thing as common law marriage, raises some of the same problems — raises similar problems — and is one on which the Committee would certainly like to have an expression of viewpoint.

CHAIRMAN READ: I’d like to ask Professor Kay to comment, Commissioner, if I can ask you to wait a minute.

PROFESSOR KAY: The concept of the putative spouse is essentially an equitable concept which has been defined in some states by case law, and in others by statute, to give protection to the kind of case that normally comes up under it. The normal case that comes up under a putative spouse provision is a case where a man and a woman have lived together for something like 25 or 30 years in belief that they are married, and at the end of that time one of them died, and the question then arises on distribution of the estate, whether the person who has for all that time acted as a spouse, believing he or she was a spouse, should be entitled to the rights of the spouse, or whether some of the collateral kin or the children should instead be able to take all of the property. It is usually purely an economic question. {124}

Now, we have had this doctrine in California as a matter of case law for some 50 or so years. It was enacted as part of our new Family Law Act in putative statutory form for the first time when that Act was passed in 1969, but the doctrine remains the same, and our courts have never had any problem adjusting the rights as between a legal spouse and a putative spouse or more than one putative spouses. However, to make that point clearer and allay some of Mr. Sullivan’s criticism, it would seem to me perfectly appropriate to add a sentence to the end of Section 209 expressing some such idea as this, that if in addition to a putative spouse there is also a legal spouse or there are more than one putative spouses, the court shall in its discretion make such division as seems just under the circumstances of the property, and that would guarantee the court’s expression, and it would solve some of these problems that have been brought up. But if a Reporter is permitted to strongly urge, I strongly urge that you not delete the section, because it does solve many cases that otherwise would cause injustice.

[The question was called for by Mr. Jestrab.]

MR. NEEDHAM [R.I.]: I would just like to pose one question. When you give the putative spouse all of the legal status, as the section reads, what does this do to the property {125} rights? And I’m talking about title — the title to real estate. If there is a legal right, and one or more putative spouses and they all have legal rights, it seems to me that you now have effectively encumbered the chain of title to the real estate.

Now, I don’t know whether giving them this kind of right — I kind of like what the last speaker said; maybe not give them all legal rights, but put some language in there whereby the Act, in the case of the situations in California would give the justice some guidance.

CHAIRMAN READ: Commissioner Sullivan, Professor Kay has suggested that some additional language might be added here which I would put in the category of giving extra coverage to the problem of multiple spouses. Would you accept the Committee’s agreement to consider that, instead of moving to strike this section?

MR. SULLIVAN [Id.]: Frankly, Mr. Chairman, I’m a little hesitant to accept the Committee’s agreement to do anything about this section, because we have discussed it in Chicago, we have discussed it here in St. Louis, and the consensus — as I remember, it was a very close vote, but, anyway, the Committee voted to leave it as is.

Therefore, I am greatly hesitant to leave the question {126} to the judgement of the Committee, because I don’t think their judgement is very good. [Laughter and applause]

That is the reason that I made the motion to bring it before the house. I thought maybe in the wisdom of a greater number of people that have had wider experience, perhaps, than the Committee has shown [laughter], the house could instruct the Committee to do something that they have been unwilling to do.

Now, as far as Miss Kay’s suggestions are concerned, I think perhaps something could be worked out. I didn’t like her language very well. [Laughter] Therefore I would hesitate very much to leave it to the judgement of the Committee.

CHAIRMAN READ: You are entitled to your motion.

MR. SULLIVAN [Id.]: I call for the question.

CHAIRMAN READ: The motion is to strike Section 209, Putative Spouses.

MR. VON HERZEN [Calif.]: Mr. Chairman, I move to table that until the Committee has a chance to get it back. I think this motion has preference, and I think that gets everybody off the spot.

CHAIRMAN READ: The motion is to table the motion to strike Section 209.

MR. BOATWRIGHT [Va.]: If we table it, we’ll kill Commissioner {127} Sullivan’s motion, is that correct?

[Calls of "No! No!"; calls of "Yes! Yes!"]

CHAIRMAN READ: If we table it, it will stay on the table until it is taken from the table.

MR. BOATWRIGHT [Va.]: It will kill Commissioner Sullivan’s motion.

[The motion to table was put to voice vote.]

CHAIRMAN READ: We will have to proceed with Commissioner Sullivan’s motion.

[Mr. Sullivan’s motion was put to a voice vote.]

[Calls for a division]

MR. NEEDHAM [R.I.]: Mr. Chairman, I think it might be time for the chair to consider a motion to adjourn.

CHAIRMAN READ: If I heard a motion to adjourn, I would consider it.

MR. NEEDHAM [R.I.]: I so move.

MR. JENNER [Ill.]: Mr. Chairman, you cannot entertain such a motion.

[Whereupon Mr. Sullivan’s motion was put to a standing vote.]

CHAIRMAN READ: Commissioner Sullivan, your motion lost by 47 to 33.

MR. McKUSICK [Maine]: I wonder if this Section 209 is not {128} so closely related to the subject matter of the three alternative Sections 211 that 209 ought to be bracketed even after you rework it.

CHAIRMAN READ: The Committee will consider it.

MR. GREEN [Mo.]: I hope that, notwithstanding this vote, the Committee will make an effort to make a little sense out of this section and try to prevent double, triple, and quadruple insurance companies being involved in the case of wrongful death. It will take more than adding a sentence. It will take rewriting, and I hope it will be done.

Beyond that, I hope that the Committee will give some consideration to the term "legal spouse." As I understand it, "legal spouse" is somebody who marries somebody else, not somebody who has been divorced or who is a party to a void marriage; and if that is so, the putative spouse, as I understand it, here cannot be divested of his or her marital rights, the way a divorced spouse can be, and I wonder if the Committee didn’t mean to say that the putative spouse is entitled to the rights that he would have if he had been a legal spouse, or something like that, because it just looks to me that the putative spouse is going to have the rights even though the parties to a divorced marriage would not have, and if you meant what you said a few minutes ago, that the prohibited marriage is really a {129} void marriage, then I think the party to a prohibited marriage would not have any rights, but a putative spouse would have all of the rights of a legal spouse; and so I think there is a great deal of confusion about what you mean by "legal spouse."

MR. McKUSICK [Maine]: I wonder if the Committee would like to have the issue shaped up by having a motion to bracket Section 209, however reworked.

CHAIRMAN READ: Are you moving?

MR. McKUSICK [Maine]: I would so move.

MR. GIBSON: Mr. Chairman, I think the Committee would like to rework before the Committee of the Whole decides whether or not to put it in brackets.

MR. McKUSICK [Maine]: I will withdraw the motion.

MR. GIBSON: We will proceed with a reading of Section 210.

MR. BRAUCHER [Mass.]: Mr. Chairman, are you passing 211 at this point?

MR. GIBSON: Yes.

CHAIRMAN READ: We’ll catch up to 211.

MR. BRAUCHER [Mass.]: Will you come back to it?

CHAIRMAN READ: We just read it to tie them together. We’ll take them up in order.

MR. GIBSON: {130}

SECTION 210. [Application.] All marriages contracted within this State prior to the effective date of this Act or outside this State that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted are valid in this State.

If there is no comment on this section, we will then proceed to consideration of Section 211, the three choices presented.

CHAIRMAN READ: 211 has already been read.

MR BRAUCHER [Mass.]: Mr. Chairman, I find myself in a little doubt as to what the Committee is proposing to us here. Are they bringing in three things — pick one — or are they saying: Would you promulgate this Act with three alternatives for each state to choose, or what is the posture?

MR. MERRILL [Okla.]: That is the exact answer, Commissioner Braucher. This is a matter on which the members of the Committee and the members of the Section alike were broadly split, and there was extreme reluctance on the part of many Commissioners who came from states which have abolished common law marriage to do anything which would recognize it. There was an equally strong and determinedly expressed reluctance on the part of Commissioners who came from states which retain common {131} law marriage to putting into a Uniform Act anything that would throw a doubt on their continued use of common law marriage, which they have found to be an extremely useful institution; and the result was that it occurred to the Committee that the safe solution here was to — we didn’t think it was desirable to say nothing about the subject. We felt that it was desirable to present the states with alternatives.

MR. MILLER [La.]: Where in the draft are the effects of a common law marriage, so that you know which definition you want to take?

MR. MERRILL [Okla.]: These are left to be determined, as they have been in the past, by the common law doctrine.

MR. MILLER [La.]: I would think, before we could intelligently vote on this, we would need to have some idea of what effects are intended to flow from a common law marriage.

MR. MERRILL [Okla.]: Well, the effects that are intended to flow are exactly all the effects that flow from any valid marriage. That’s the situation. It is a valid marriage, and we have not undertaken to—

MR. MILLER [La.]: Well, in my State there is a great distinction between a putative marriage and a common law marriage. A common law marriage is just living in sin. [Laughter]

MR. MERRILL [Okla.]: The answer to that, Judge, is that you {132} don’t have common law marriage in Louisiana. That’s the answer. We have it [in] Oklahoma, and it’s just as valid and just as effective and carries with it every incident of marriage with bell, book, and preacher.

MR. BRAUCHER [Mass.]: Mr. Chairman, I think it would be helpful if we had a rundown on what the present state of the law is around the country. Each of us has some understanding of his own law. In particular, do we have any states which have once abolished common law marriages, and then put them back into effect by statute?

MR. MERRILL [Okla.]: I am told by one of my fellow Commissioners that there is one. I was not aware of that.

MR. HELLRING [N.J.]: Thirteen states still have it. One of our Reporters will tell you — or perhaps either of them will tell you — that in some of the states in which common law marriage does not exist or has been abolished, certain incidents of common law marriage are recognized as a matter of case law; but they can tell you about that better than I can. The fact is that there are 13 states left in which common law marriages are recognized.

Now, the thought of the Committee, Commissioner Braucher, was that, obviously, the Conference would not adopt both of the first two alternatives. They would take either of {133} the first two, and then could possibly also take the third one, if they wanted to. I hope that gives you an idea of what the Committee has in mind.

Now, you could, of course, leave it as it is, which is to leave all three of them in brackets, which, of course, would mean that you leave it to each state to include which ever section it wants, and not press for uniformity in that respect. The idea in doing that would be to give the statute a certain amount of additional acceptance from the standpoint of uniformity on the rest of it; but those are the alternatives with which the Conference, I’m afraid, is confronted, because of the inability of the Committee to come to a single conclusion.

MR. MERRILL [Okla.]: Mr. Chairman, I hesitate to correct too much my friend and colleague, but my recollection of what the Committee voted was not that we were asking the Conference to choose between one or the other, or possibly a combination of these three; we are asking them to include these with brackets, because the overwhelming position of the two opposing ranks in our Committee, in our Section, and I’m sure it would be reflected on the floor of the Conference itself, was: We are utterly opposed to one or the other of these particular provisions. Our State will accept this if you bring us the {134} particular provision to which we are opposed. And our position, as I understood it, was that we were proposing these as bracketed sections, intended to be bracketed sections, and left to the individual states.

MR. HELLRING [N.J.]: I accept entirely the Chairman’s version of what the Committee did.

MR. DEACON [Jonesboro, Ark.]: I just indicated to the rest of the Committee that I thought that the Conference should be told the intended effect, from the Committee, of the third alternative 211. Actually, there are some of us on the Committee that felt that if being called a common law marriage is not what is known in the case law as a common law marriage — this is a new statutory marriage, because this definition says that people who have cohabited for one year, intending thereby to be married, are married — the case law setting up common law marriage requires a little more than that, so this really is a liberalization of living together and creating a legal relationship; and as I recall, the Reporters said that they thought it was necessary that the states have an opportunity to recognize that there are many young people today who do not want to go through a ceremony, and that they therefore should have the right to have that considered a marriage, because they consider it a marriage, and that is my interpretation as a member of the Committee {135} of what was intended by that third alternative.

CHAIRMAN READ: If I can ask you, gentlemen, to continue to stand there for a moment, I’d like you to hear a little bit more from the Committee before we move.

PROFESSOR LEVY: As you might guess from what has already come from the Committee, speaking as a party to the conversations, and as one no less involved in the issues that the Committee faced and refaced and refaced, I think, and I am told by Commissioner Ruud that when alternative provisions are presented, they are not to be bracketed — but I think the Committee finally felt that it should put, as part of the Act, these three alternative provisions as alternatives, one of the purposes being to signal to the state legislatures that there is an issue — the common law marriage — that they have to face.

If I can go on for a few moments, and simply review in somewhat the same fashion that Commissioner Merrill suggested, the issue of common law marriage has closely divided the Committee time after time, and for very good reasons. It is a controversial issue — that is, by and large, in the states that continue to recognize common law marriage, because those states recognize it as an equitable doctrine designed as an ex post facto saving device to protect the property rights of {136} persons who have enjoyed over a long period of time a stable family relationship.

The common law marriage doctrine has been preserved, very commonly, in states in which there are fairly large minority groups, subcultural group populations. A great many states, as has already been indicated to you, have abolished common law marriage. They have done so on the ground that the original theory on which common law marriages were recognized — namely, that it’s hard to get to the preacher — is no longer necessary and in our Act especially it’s no longer necessary to recognize common law marriages because we have made it considerably easier to go through a ceremonial marriage than has been the case in many states with more rigorous procedural and substantive requirements.

The result of all the discussion was that one of the alternatives should be, if we recognize that common law marriages— not in the traditional sense, that two parties get together in words of the present tense agree to hold out to being married — but is really a way of recognizing as a marriage two persons who have enjoyed a family relationship and are known in the community as husband and wife — that is, have they cohabitated, and do they have the reputation in the community of husband and wife? {137}

So we thought that there should be some effort to put into current statutory terms the kind of concept of a common law marriage that it has become in practice, instead of referring to the traditional words in the present tense, and so forth; and that is the third alternative which you see on the top of page 9.

The other two are simply efforts to signal to the legislatures: You either have or you do not have a common law marriage doctrine, and you have to decide what you want to have, because if you have it and these alternatives are not in there, you might abolish common law marriage by mistake.

MR. DAGGETT [La.]: Mr. Chairman, you have overlooked still another point, you know, on this subject. In Louisiana, as well as all South or Central American countries, by publicly living together you establish what is known as open concubinage, which has a status in those societies different from marriage, and it does have different legal limitations on who shall receive the benefits of this home away from home. [Laughter]

The main reason I got up to speak again, however, being a new member and admonished to sit and listen — and I haven’t done either one — is this: I am in this business every day of drawing up these beautiful laws, and they all wind up {138} in the wastebasket. I’d like to commend the Committee on a beautiful document, an interesting document, but I am reminded of a bill in our Legislature.

We are the only State that doesn’t make it a crime of any kind to commit adultery. There was a bill introduced to prohibit adultery, and it received one favorable vote. [Laughter] The only way that it got to the floor to get a vote at all was that it was recommitted to several committees and they finally got it into one which would report it to the floor without action, so that it could at least be debated and voted upon; and that was the Senate Committee on Wildlife, Fisheries, and Oysters. [Laughter]

Although this is a beautiful Act, I, having been around the Legislature for 20 years, am a little non-plussed to go home after being paid by the State to come here, with my first big effort on a Uniform Law, and I don’t think I can even get this one introduced. Ever since I have been in the Legislature, we amend the laws on marriage and these things every session, and we have no uniformity of policy.

As opposed to the adultery thing I just mentioned, in the last two sessions we have had more hoopdedoo about sex education, as to whether or not it shall be prohibited. After mass marches on the Capitol and public hearings all over the {139} state, the House finally passed a bill prohibiting any sex education in any school, thereby prohibiting the teaching of gynecology in medical schools, and also the usual guppies and puppies in the classrooms in elementary schools; and the Senate in its greater wisdom killed the bill.

I’m trying to say in a jocular fashion that I would like to go home with a simple document that even simple people in the simple Legislature in Louisiana might pass. We started off in a pretty good, simple fashion with marriage licenses; and, you know, the marriage license has four purposes. One is that people ought to know that by going down to the county courthouse they are fixing to do something that’s equally as important as getting a fishing license. [Laughter] Secondly, it gives the clerk of court a chance to shake hands with everybody. [Laughter] Third, it puts $3.00 in the clerk’s special fund.

Now, other than that, it doesn’t have much function but it’s important in that it does give to these people about to embark upon this idea at least a formal sense of doing something important.

Now, we can pass that, but we can’t go into all this sociological business about whether someone ought to be sterilized before they get married. It won’t pass. It would be a {140} good idea.

Now, the insane asylums are full of people, but we keep filling them up. So all I would like is to be able to take home a simple starting ground. This is the most controversial area among the states. I don’t think of any subject where the laws of the 50 states are more different; but we could start if we kept it simple, as a uniform law. This document is too full of complicated issues that couldn’t be resolved in the rest of my lifetime in my own State.

So when the Committee reconsiders it, I’d like for them to think in terms of a simple thing that I can understand and I can sell. [Laughter]

CHAIRMAN READ: Thank you, Commissioner.

MR. BURKE [N.D.]: I’m going to suggest that in Section 210 you need a qualification, "persons who are not disqualified from marrying under Section 207", and also limiting it to cohabitation within the State, rather than trying to regulate the marriage outside the State. I would offer those two suggestions to the Committee.

CHAIRMAN READ: I think I have already heard some Committee discussion on that subject.

MR. DUNHAM [Ill.]: I think the question that Commissioner Miller asked about what the consequences of all of this are is {141} still very important, because I don’t quite understand why you need any statement on common law marriage. You do have the putative marriage section. Let’s assume for a moment someone can work out one that’s entirely acceptable. I wouldn’t put it where it is; I would put it somewhere else. But that’s a matter of style.

You do have provisions that talk about the legitimacy of children. You have from the putative marriage section provisions about the property. Well, what’s left? The only thing I can think of is: Can you get divorced if you have never been married? Why don’t you put a provision in there saying you can’t? What are the other consequences?

PROFESSOR LEVY: Well, I think it’s not only that. There are people who would not be putative spouses, for example, now. If the Committee adopts Commissioner Joiner’s suggestion with respect to 207 (a) (1) — that is, that a marriage prohibited because it’s bigamous become unprohibited, I think, is the way Commissioner Hellring talked about it, when the legal marriage ends through death or divorce — that might solve some of the problems; but the typical problem, the problem that I think Commissioner Merrill and others from Oklahoma concern themselves with, is the two people who in the case of some minority groups don’t believe in white man’s law, and join {142} together informally in a marriage which last[s] 47 years. They don’t think that they are — they don’t believe in the good faith of their marriage.

The question at the end of that relationship is: Can there be a wrongful death action which the "wife" can take advantage of? Can there be Workmen’s Compensation and Social Security benefits which apply, and so on? That is what the common law doctrine is designed, or used, to effect.

MR. GREEN [Mo.]: I direct your attention to the third alternative of Section 211. I think this has many of the same difficulties that Section 209 has now. 209 is the case of two people who go together for, I guess, a day or a week, or something like that, and the spouse has all the rights of a legal spouse. Under 211 if he has done it for a year, it becomes a full legal marriage. I think something ought to be done with both of these sections to limit it to people who are still living together at the time.

CHAIRMAN READ: The Committee has said it will consider those issues.

MR. SULLIVAN [Mont.]: Mr. Chairman, I move that the Committee of the Whole rise, report that it has made progress in considering the Uniform Marriage and Divorce Act, and asks leave to sit again. {143}

CHAIRMAN READ: You have heard the motion.

[The motion was put to a vote and was carried.]

* * * * * * * * *

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Monday Morning, August 3, 1970

Mr. Harold E. Read of Connecticut presiding;

Mr. Floyd R. Gibson of Missouri presenting the Act.

CHAIRMAN READ: The Committee of the Whole will please be in order.

Chairman Merrill will give you some introductory explanation of how we are going to get from the new material to the old material, to try to avoid some of the typing errors that have crept in.

MR. MERRILL [Norman, Okla.]: As you are aware, we had some difficulty on Saturday due to the errors of the typing office in preparing the text, and there were typographical errors that we did not have time to correct before going on to this. As a result of the discussions which occurred in the Committee of the Whole Saturday, the Committee and the Section have gone over Parts I and II, dealing with marriage. We have prepared a text in accordance with what we understand to be the questions raised, and when there was a vote, the decisions taken in Committee of the Whole. That is now in the hands of the typists, and will be reproduced and be available later, but obviously we cannot go on with that now. {A2}

So we are going to proceed with Part III on Dissolution of Marriage, and the succeeding Parts, and in that connection again we ran into some little problems with the stenographic division as a result of which we have for your discussion, beginning with Section 301, a test. It is from the book. This will take us over through to Section 305, and we there have some material from the typists, starting with 306, that is on your desks, and it goes over through page 20 — that is, the middle of page 20 — and at that point, then, we have to refer you back again to the book, which has been unchanged, and we will go through with that, the remainder of Part III, and we will then start on Part IV on Custody, if we get that far this morning, using some of the material on your desks.

Is that clear?

MR. HELLRING [Newark, N.J.]: We start in the book?

MR. MERRILL [Okla.]: Yes, that’s the order. And with that introduction and with our apologies for our problems in the stenographic division, I will now ask Commissioner Floyd Gibson to continue with the reading.

MR. GIBSON: We will commence with Part III, Dissolution.

CHAIRMAN READ: Will you comment on 301?

Any comment on 302? [There was none.]

If not, we will proceed with 303. In this section the stenographer, or typist, left out part of the section, and I’ll read it to you and call your attention to it when we come to it. The insert is after the first sentence of 303, and the wording has been changed to conform to Judge Burdick’s suggestions.

That language also appears in your draft on page 32; that is, the language, style, and phraseology are taken from page 32, line 7. Continuing:

I will continue with Section 304.

MR. HILLMAN: I have two small comments.

First, with regard to subpart (b) of this section, in line 17 and 21 I would suggest that the language be broadened to include potential molesting, disturbing, or harm to the children as well as the spouse, which seems to be contemplated by the present language. If it does fit with the present language, I think it could be made clearer.

Also, I would suggest that the 20 be made 30, as to the time within which the response may be filed regarding the advice of notice of motion. The party who responds to the petition has 30 days to file, and I think this provision should be parallel.

MR. BULLIVANT [Portland, Ore.]: I’d like to inquire with respect to (b) (1), an order restraining any person from transferring, encumbering, concealing, et cetera. Does that contemplate that the third person who may have custody of a bank account or other assets of one of the parties be made a party to the divorce proceeding? We have had a lot of procedural trouble in my State over this issue as to whether or not if those persons had custody of assets they must be made a party to the divorce proceedings.

MR. MERRILL [Okla.]: Commissioner, may I inquire if it is the thought that this injunction might run against persons who are not parties to the action?

MR. BULLIVANT [Ore.]: That’s correct. A bank holding the bank account of one of the parties may receive a restraining order, for instance.

MR. MERRILL [Okla.]: Well, if it is appropriate, just as with any other injunctive proceeding or restraining order, if you can make the persons subject to it, and serve them with a copy, they then are required to obey the restraint.

MR. BULLIVANT [Ore.]: Our courts at the trial level have held that such an injunction is invalid.

MR. MERRILL [Okla.]: Is that based on constitutional grounds?

MR. BULLIVANT [Ore.]: Just the fact that they are not a party to the proceeding, and they cannot be bound by the order, unless they are made a party.

MR. MERRILL [Okla.]: You mean, in Oregon you cannot serve {A16} notice — injunction — in the order of injunction itself — on a person, and bind him by it?

MR. BULLIVANT [Ore.]: That is correct. If he is not a party to the proceedings, I think our courts have held that privity doesn’t exist.

MR. MERRILL [Okla.]: The suggestion comes — and I think it’s a sound one — that in a state which has a practice of that sort it would be appropriate to put in the comment the provision that in those states it would be necessary for a petitioner, or a party who wishes an order of this sort, to comply with the local rules of practice by making the prospective person to be enjoined a party in accordance with the rules of that particular state.

MR. PRYOR [Burlington, Iowa]: Would it not be sufficient to insert, following the word "from" in line 11 the words "directly or indirectly"?

MR. MERRILL [Okla.]: We had thought, Commissioner Pryor, that "in any way disposing of" covered both direct and indirect disposition.

MR. PENCE [Wyo.]: Mr. Chairman, I wanted to raise two or three or four questions, and not for purposes of debate, but merely as inquiry.

You are using the word "petition" instead of "complaint", {A17} which we have become accustomed to under the rules of procedure. You are using the word "response" instead of "answer". You are talking about a 30-day answer period instead of a 20. You are also talking about verifying complaints, and I’m not talking of those complaints which ask for injunctive relief, but the initial complaint. And I wonder why we depart in the field of domestic relations from the terminology which has become more or less uniform under the rules.

CHAIRMAN READ: That is the point that Commissioner Burdick made earlier. The Committee has accepted it, and will make—

MR. HELLRING [N.J.]: [Interposing] No, no, no!

CHAIRMAN READ: I’m sorry. It sounds to me like the same point, but—

MR. JESTRAB [Williston, N.D.]: Mr. Pence took the words right out of my mouth.

MR. MERRILL [Okla.]: You second Commissioner Pence’s inquiry?

MR. JESTRAB [N.D.]: Yes, and I have some other things I’d like to say. [Laughter]

MR. MERRILL [Okla.]: Commissioner Jestrab, if you don’t mind, we’ll take that one first, and then we’ll take the next one. {A18}

With respect to several suggestions which Commissioner Pence combined in one, this too was discussed at the Committee of the Whole last year, and you will recall at that time we made the point, and we were not instructed otherwise, that because this is a procedure which involves a new and different concept of the approach to proceedings for the dissolution of a marriage, that we had felt that it was wise to depart from the established practice and to establish terms and to emphasize that departure through the adoption of this new phraseology. This is the reason.

MR. JESTRAB [N.D.]: Everything that Mr. Pence said I have been wanting to say. I don’t know anything about unhappy marriages, my own having been one of bliss for so many years. [Laughter]

I have been thirty-two years at the bar, and I have never gotten anybody a divorce. I do know a little bit about procedure — not much, but a little bit — and always, anytime some reformer wants to start changing the law, they also want to start changing the procedure. And if I may take the liberty sometimes reformers may know a lot about divorce, but they don’t know very much about procedure.

The plain fact of the business is that if you are dealing with something which has to do with human relationships — {A19} procedures where the law regulates human relationships — all you are going to do is to make it more confusing. Some of us have labored long and hard to achieve uniformity of procedure, and I don’t think any divorce experts ought to come in and start changing the law of procedure, something that we have labored so hard and so diligently in so many states to achieve for so long; and if you can’t say that you will file a complaint to achieve what you are talking about — a petition; if you can’t eliminate these verifications; if you can’t talk about the commencement of a proceeding — the commencement, excuse me, of an action — under the Federal Code the concept of a proceeding is different from that of an action. This is an action, and you ought to call it an action, because all you are going to do is to destroy what so many of us have worked so hard for so many years. This is a great mistake.

MR. HELLRING [N.J.]: Commissioner Jestrab and Commissioner Pence—

MR. JESTRAB [N.D.]: I’ll make a motion.

MR. HELLRING [N.J.]: Could you hold it for just one moment? Maybe this will make it unnecessary.

The Committee, and even the Reporters, I think it can be said — don’t feel very strongly about any of these things. What’s in a name? {A20}

However, I think it’s fair to say that the Committee was guided somewhat by the views of the Reporters and others who suggested that using milder terminology for these proceedings would have a tendency, perhaps, to mollify the adversary aspects of this type of proceeding from the way it had been, and some words like "response" instead of "answer", words like "petition" instead of "complaint", are found here.

However, I think it’s fair to say that the Committee will take the views that have been expressed here under further consideration and will debate the matter, and if that’s satisfactory, then a motion will not be necessary. However, if you want the sense of the house on it, please go ahead.

MR. MERRILL [Okla.]: May I add to Commissioner Hellring’s statement one other factor that I think might well be taken into consideration? And this is that in the two states which recently have enacted statutes which accept the concept of irretrievable breakdown as the sole basis for dissolution of marriage, this type of styling has been employed in both statutes, and therefore there is some indication of what legislatures are willing to accept, even in states which have established procedures which otherwise deal with the problem of pleading.

MR. PENCE [Wyo.]: Well, Mr. Chairman, for the most part I {A21} think that procedures are not legislative any more within our concept of things, and that there are rules of the Supreme Court, and I hate to go back to the old system of legislating rules after prescribing rules by the Court, and I think that we should have a sense of the house, and I move you, Mr. Chairman, that the sense of the Committee of the Whole in this particular is that the language and procedure in this Act should be amended to conform as nearly as possible to the Rules of Civil Procedure as we know them.

CHAIRMAN READ: Will you remark on the motion?

MR. JESTRAB [N.D.]: If nobody wants to speak, I can’t emphasize too strongly what I have already said, and I would like again to amplify what Commissioner Pence has said about the rules of court.

We are just starting on a similar project in the rules of evidence, and I think that all you are going to do is to get the legislature back into enacting procedural statutes and you are going to give aid and comfort to the people who have regretted that they have lost this power; and I would ask at least all practitioners, people who go to the courthouse, people who deal with this, to support this motion.

MR. CORNELL [San Francisco, Calif.]: We have adopted this Act, and I think that procedure is very important with respect to the philosophy {A22} behind the change, which is to take dissolution, the breakdown of marriage, out of the advocacy realm. By using the language of plaintiff and defendant we have traditionally in the past placed blame on one party or the other. I think that the only law we have in California that held marriages together in the past has been the community property law. Other than that, I don’t think that the Dissolution Act is going to help very much with respect to saving marriage. I don’t think the present laws — they are strict on other states — help save marriage either. I think that’s up to the social workers, the churches, and the schools.

What we have done with the change in California is change the aspect of divorce, and it takes education. Lawyers don’t change their ways very fast, and by changing the terminology, it’s helping us to give a new view toward this. I think the Act, if it’s expected to save marriages — and it falls short there — I don’t think that’s the scope of this Act.

MR. WELLING [N.C.]: You are not going to save marriages by calling it an action, or a proceeding, or anything else. It doesn’t make any difference what you call it. When people get to the point where they are going to divorce and separate from each other, one party is mad. So let’s don’t call a cow a horse, and let’s stay with our civil procedure. Let’s call it a complaint, and an action.

And further, I find no place in this Act where it provides for service of process as we know it in most states. I think we ought to leave the procedure matter out of this Act entirely.

MR. THODE [Salt Lake City, Utah]: I don’t understand that "petition" and "answer" are not adversary terms. It just seems to me that those are older adversary terms. If this was intended to be taken out of the adversary process, it seems to me it should be other than "petition" and "answer". Those are adversary terms too; but I certainly agree with Mr. Jestrab that the modern terms are the ones that should be used.

MR. PRYOR [Iowa]: We have exactly the same Act as the California Act. It went into effect the 1st of July. I agree wholeheartedly with everything that the Commissioner from California said.

Incidentally, the term "divorce" is not to be found in our law. It is an Act for the Dissolution of Marriage.

CHAIRMAN READ: That comment supports the Commissioner from California, saying that Iowa has the same Act and the same terminology, and he would favor the general trend of the existing draft.

MR. NEEDHAM [R.I.]: I think that with the two comments {A24} from the Commissioners whose states have adopted this Act, the effect of Commissioner Jestrab’s motion is perhaps more far-reaching. It’s more fundamental, I think.

I think what we are talking about now is: Is the house ready to abandon our traditional concepts of what happens in a divorce action, and will our states accept a theory of a compromise between husband and wife, simply because the agreement has been made and the property has been distributed — elimination of the fault theory of divorce?

I don’t think that when the motion was made to go back to our rules of civil procedures that it necessarily implied that. Are we ready to accept this theory?

But I think, if we go back to the rules of civil procedure, we definitely are going back to accepting a fault type of domestic relations, and if that’s what the purpose of the motion is, I think we ought to at least inspect that idea before we abandon what the Committee is doing.

I might say, Mr. Jestrab, that I do agree with you. I would like to go back to the fault concept of divorce, and I’m not as liberal as they are in Connecticut, and I do realize that in divorce, as my good friend from down South said, one of the parties is mad, and I think that what we traditionally have known in divorce, regardless of what we call it — we’re not {A25} going to keep the parties together.

MR. JESTRAB [N.D.]: Mr. Chairman, I don’t mind being quoted, but I don’t like being misquoted. [Laughter] I haven’t expressed any views on the merits of this Act one way or the other. I think that I have even refrained from voting on some of the motions.

I’m talking now about: How are you going to accomplish the results that you seek to accomplish by this Act? And that’s all that I’m interested in. And that is the procedural machinery that you endorse. And I think that to adopt 1875 language — "petition", and so on — there isn’t anything new about it. It’s just a misunderstanding of what you are talking about. And all that I’m speaking for is in support of the rules of civil procedure.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’m troubled by this terminology dispute. I don’t suppose a great deal turns on it ,but I have the feeling that if you’re going to register lands, for example, you don’t start with a complaint; you start with a petition. If you are going to adopt a child, you don’t have a complaint for the adoption of a child. And I think the spirit is to get this thing into a little different category of type of judicial proceeding where, as I say, a petition to register land, a petition to adopt a child — to me, this language {A26} of complaint doesn’t seem very appropriate.

Now, maybe in North Dakota they use "complaint" for a lot of uncontested and nonadversary proceedings, but I find that more or less inappropriate language, and I would like enlightenment on it.

MR. VON HERZEN: Mr. Chairman, Members of the Conference: There are two aspects of this that I have gathered from the debate. One is the question of whether or not this is going to create any confusion, and with relation to the attorneys that have had occasion to practice under the Act as it was passed in California I am unable to find, and have been unable to find in the last year, any substantial confusion that has resulted from the use of the new terminology. This is Point No. 1.

No. 2 is that I have heard, instead of Mr. Jestrab’s motion — I have heard Mr. Pence’s motion, and Mr. Jestrab has risen to support Mr. Pence’s motion. Mr. Jestrab has not made a motion. Am I correct in this?

CHAIRMAN READ: I believe so.

MR. VON HERZEN: Now, if this be true, and what I heard was the fact that we were perhaps departing, or entering into a field where procedural rules were being made in this Act, I rise to differ. I think that the use of terminology does not {A27} require or present a position that has put procedural rules as a substantive law. We still have motions. We still have certain things that we have to do. We still have to comply with rules respecting time, and things of that sort, in procedural matters. There are matters that will come up in these type of petitions that will require the ordinary rules of procedure, which we have not changed.

Now, the fact that we call the matter a petition rather than a complaint does not change procedure. It is simply terminology. When I was attending law school some years ago, they required us to take a course in common law pleading. Now, gentlemen, the fact that we have gotten away from certain types of common law pleading does not in my way of thinking change the fact that we are in modern law calling a matter as it should be called, perhaps something different than a complaint, perhaps something different than an answer. And this I think to be good. It has served California well so far. I admit that perhaps another five or ten years will give us the perspective of history, and things of that sort, but we don’t need that. I think we have at least enough innovation within the Conference so that we’re able to accept mentally new terminology where it’s needed, and I think it’s needed in this Act.

MR. CALLOW [Wisc.]: I’d just like to make one further observation {A27a) that does provide that the petition may be filed by both of the parties, and this may be a departure from the true adversary relationship of a complaint against one another. You might suggest they are both complaining about the situation of marriage, but we do provide that both parties may file this petition together, which makes it something other than a complaint of the one against the other.

MR. BURDICK [N. Dak.]: I have no great difficulty with the terminology of "petition", although I prefer "complaint"; but nowhere in these sections do I find any provision for the service of anything upon the respondent.

MR. HELLRING [N.J.]: Section 303 (9).

MR. BURDICK [N. Dak.]: [Continuing] . . . whether by publication; whether you rely on the procedure under Rule 4, in most states—

CHAIRMAN READ: Section 303 provides for a response within so many days after service.

MR. BURDICK [N. Dak.]: But service of what?

CHAIRMAN READ: Service, I take it, would come under the ordinary procedural law of the state.

MR. BURDICK [N. Dak.]: We don’t have any provision for serving a petition. We have a provision for serving a summons, and if it can be served, then the summons must be accompanied {A28} by the petition, and if not, it must be filed, and notified where it is filed and where a copy can be obtained.

CHAIRMAN READ: I think service would be in accordance with the rules of procedure of the state, and it seems to me that’s the point that Commissioner Von Herzen was making.

MR. BURDICK [N. Dak.]: Well, the only provision we have is for service of a summons in our rules.

MR. DAVIES: Mr. Chairman, point of order. I think Judge Burdick has a very good point which I don’t want to have blurred with the issue of terminology change, and I hope we’ll dispose of that one and then get to the one which I believe has some merit.

CHAIRMAN READ: That was a point of order? [Laughter]

MR. BUERGER [N.Y.]: I ask for enlightenment with respect to rules in other states. I am reasonably familiar with those in New York, where our Civil Practice Law and Rules provide both actions and proceedings.

The purport of what I understand is Mr. Pence’s motion is that the terminology should be adapted to whatever the general terminology that is in use in a particular state, and that we should try to avoid the use of terminology that is not consistent with existing rules.

MR. DANA [New York, N.Y.]: I would like, respectfully, to suggest to {A29} Commissioner Jestrab and the other Commissioners who were about to make a motion that we vote for or against this rather novel change to consider withholding their motion.

The whole point of this Act is that it contains many new and startling features. Just to take a small example, we saw on Saturday that solemnization is much easier. We’re just coming to a novel point that there can be divorce, or dissolution by agreement between the parties; and I think another important, novel feature of the Act is this terminology change of taking the adversary idea away, and thus improving it.

I think as we reach each extraordinary new feature of this Act, a final motion by the Committee of the Whole on whether that feature should be adopted should await the time when we have seen all the new, extraordinary features in this Act, so that we fully appreciate what the Committee has done and have the entire concept. I would suggest that, as we go along, there can be changes in the phraseology, and so on, but on each big point it seems to me that the motions on these very important points, particularly — I come from New York, in which, as most of you know, it has taken us 300 years to get a new ground other than adultery for divorce. We just got a new, extraordinarily liberal abortion law. But I think that in New York this Act might not, possibly, succeed right away, {A30} but before I would get up and say, "Well, there’s no point in taking over this Act, because it has so many new features that people aren’t accustomed to that it might be disapproved," in each state I think we should see the big points, wait for each startling new feature, and accept it for the moment, and wait until all the big, new points are before us, before we vote seriatim, one by one, as we go along, to leave in or knock out one or another of these extraordinary new points.

I therefore urgently suggest that a motion to strike out one of the big, new points that we have come on today, for getting rid of the hostile and adversary words, should be delayed until we have seen all the extraordinary high points of this Act.

CHAIRMAN READ: The motion is for the sense of the house as to using terminology more consistent with the customary rules of civil procedure.

MR. SPANN [Atlanta, Ga.]: I think we just had a motion to delay.

MR. HELLRING [N.J.]: He didn’t make a motion.

CHAIRMAN READ: I don’t believe there was a motion.

[The motion was put to a voice vote and was lost.]

MR. GIBSON: We will proceed with the reading of Section 304.

MR. EAGLES [Raleigh, N.C.]: Do we assume that the Committee will {A31} take whatever steps are necessary to provide for service, or whatever you are going to call these papers?

CHAIRMAN READ: Yes, we will do so.

MR. MERRILL [Okla.]: May I make one other response to that? And that is that the language of 303 is the language in California, and I am informed by those with experience in the California practice that they have had no trouble in adapting that to their regular methods of procedure.

MR. EAGLES [N.C.]: The only problem is that 303 presupposes a requirement of service, and I don’t find it.

CHAIRMAN READ: The Committee will consider that problem.

MR. McKUSICK [Maine]: I would also suggest that the Committee should consider such questions as the availability of discovery and other procedural devices. Is this an action which is within the coverage of Rule 1 under state rules that are modeled on the Federal Rules? Is this an action with all the procedural devices that are available in an action?

CHAIRMAN READ: The Committee will consider that also.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, the Act contemplates verification for the petition and the response to the petition. It contemplates that the motion for a temporary order be accompanied {A32} by an affidavit; but it says nothing about the response to the motion being verified. In the District of Columbia, a response, which is called an opposition, is required to be verified.

MR. HELLRING [N.J.]: You mean on line 26 of page 11?

MR. GARDNER [Wash., D.C.]: Section (d).

MR. HELLRING [N.J.]: Yes.

MR. GARDNER [Wash., D.C.]: Does the Committee intend to not require that that response to the motion be verified, or has it considered it?

CHAIRMAN READ: The Committee will consider that also.

MR. GIBSON: I think that, as contemplated by the Committee, though, it is not verified.

MR. HELLRING [N.J.]: He means the response to the temporary.

MR. GIBSON: Yes. I think it is intended by this Act that all of the procedural rules and laws that the state has will apply to the Act, such as the taking of depositions of discovery, and any rules and any implementations to procedure that a state has will apply to this type of proceeding, and a comment will be made in the Act to that effect.

MR. EAGLES [N.C.]: Point of clarification. Do you intend to require the response to be verified or not? {A33}

MR. GIBSON: The Committee certainly does.

MR. HELLRING [N.J.]: (2) of 303 provides for it.

MR. GIBSON: We will proceed with the reading of Section 305.

MR. BURDICK [N. Dak.]: Mr. Chairman, it’s a little difficult to get to the microphone before you get to the next section. I understand this is deliberate. [Laughter]

But I think that it won’t be sufficient to have a mere comment that the ordinary rules of civil procedure will apply to the extent that they are not inconsistent with this Act. I think you have to have a provision in the Act to that effect, if that’s what you intend.

CHAIRMAN READ: Thank you.

MR. GIBSON:

CHAIRMAN READ: Will you comment?

MR. RING [Wash., D.C.]: Mr. Chairman, I raised earlier the question whether there was to be some distinction between the situation where the marriage really involves only two parties, the husband and the wife, and the situation where you have minor children involved.

I serve on a school board of a city of 100,000, and invariably when we get to talk about problem children within our school system, the report that we get back from our guidance people, to a very disturbing rate, is that our children have come from broken homes.

Now, I recognize that in many instances where you have held the family together you still have a problem, but the problem arises from something far more profound than the problem of whether there exists a contractual husband-and-wife {A35} relationship. Frequently families do face up to the responsibilities that extend beyond merely their personal relationships, and are able to make a wholesome relationship because there are minor children involved and they feel a sense of responsibility to those minor children, and it seems to me that Section 305 does not take this into account.

When the husband and wife agree that their family situation is irretrievably broken, the judge is supposed to have a hearing, but I think experience would demonstrate that where both husband and wife agree the judge is not going to conduct a very extensive hearing, but there are other parties that may be interested — if there are minor children involved, the minor children themselves, and the community at large, who may be faced with responsibilities for those minor children.

And so I would propose that there be some addition to subsection (a) making it clear that the judge, in holding such a hearing when there are minor children, must take into account the welfare of the children themselves.

In short, I realize that I’m suggesting that the standard of "irretrievably broken" is a standard that, when it’s just a husband and wife, may be a lesser standard than when there are minor children involved; but I think that’s a wholesome dual standard that should be reflected, and I would {A36} propose some language along the lines of adding after "irretrievably broken" in subsection (a) "taking into account in making such findings the welfare of minor children, if any".

MR. HELLRING [N.J.]: Commissioner Ring, this Section 305 is, of course, the heart of the whole Act, and as you can imagine and the Committee of the Whole can imagine, it has been the subject matter of three years of debate among the Committee and among the advisors to the Committee and among the Section, and everybody else, and it is the distillation of all of the wisdom we have been able to gather from England and from California and from all of the states that have had it under consideration, and from all of our advisors.

As 305 now stands, it doesn’t make separate reference to the situation of families with children as distinguished from families without children. In earlier drafts there were such distinctions. The way in which the language of 305 is now cast, the ultimate discretion remains with the court. 305 as it now stands does not permit parties under any circumstances to come in and simply register their divorce by agreement. In every case a judicial determination of irretrievable breakdown is required as it now stands.

We have given special consideration to the subject matter of representation for children in Section 310, which, (A37} when it is presented later today, will draw to your attention the fact that the court is permitted to appoint an attorney to represent the interests of a minor or dependant child with respect to custody and support.

Now, when we get to 310, we’ll be discussing the representation of a child in that section, and it may be that your comment should wait until then. You may want at that time to make a motion or to make a suggestion, or a proposal, that in appointing an attorney to represent the interests of a minor child, the attorney may be authorized under the Act to deal not only with questions of custody and support for the child, but perhaps also to be able to be heard on behalf of the child with respect to the question of irretrievable breakdown. The Committee debated that, and as Section 310 now stands, we limited the representation to the subject matter of custody and support; but I urge you to consider that when we come to Section 310.

So far as Section 305 is concerned, certainly the court in making its determination of irretrievable breakdown or not irretrievable breakdown — because as the language reads, it says that "the court shall, after hearing, make a finding whether the marriage is irretrievably broken"; and, of course, in making that determination the court will take into consideration {A38} all factors, including the question of whether there are children, whether there aren’t children, and what the best interests of those children may be.

MR. RING [Wash., D.C.]: I think the suggestion that you have made with respect to Section 310 is not a full response to my concern. The situation, as you have described it to me, is that, really, there will be a common law of every court, and the common law is going to depend upon the disposition of that particular judge. The judge has no guidelines as to what "irretrievably broken" means, and he’s going to determine in his own mind whether a different standard should be taken into account when there are minor children, and I think that this issue should be posed for the group as a whole.

I realize that you have been giving diligent consideration to this matter for three years, and, indeed, your wisdom may be greater than mine, but I think that I would like to propose, in the way of a motion, without being wedded to particular language, that there be included some general statement to the effect that in making this determination of irretrievably broken the judge shall take into account in the making of such a finding the welfare of minor children, if any and I so move.

MR. LANGROCK [Vt.]: I have read this section and, to be {A39} quite candid, I’m pretty shocked. I remember last year at the Conference the idea that when two adults have verified under oath that they do not wish their marriage to continue, and that it is irretrievably broken, that ultimately a divorce will be granted, the basic principle being that nobody can force two people to live together who are determined to end their marriage. That was the feeling that was adopted by the Conference last year. I believe there were one or two dissenting votes out of the entire group; and I’m surprised that the Committee has gone back to this.

The other thing that I’m really shocked at is that, as a Vermonter, I find this a reactionary step backward from getting a divorce in Vermont. We have that antiquated fault principle, but if somebody is at fault, or both parties are at fault, they can get a divorce. If both are committing adultery, either one is entitled to a divorce, and no judicial officer can interfere with it.

In this case we have two people who are previously at fault, and some judge can sit in here and say: We’re not going to grant it. We’re going to force you two people to live together and try harder.

Personal philosophy can come into it, and personalities can come into it. And so in a situation where I can obtain {A40} a divorce for a client in Vermont now, under this liberalized Act I wouldn’t be able to.

So I certainly would be against the motion. My feeling is that the sense of the Conference which was had last year should be returned to, and not left where it is at the present time either.

MR. DUNHAM [Ill.]: I was going to make roughly the same point that Mr. Langrock made, although until Commissioner Hellring spoke I thought maybe I had a matter of style.

It seems to me that what the Conference voted last year is whether that word "whether" should be deleted and the word "that" should be substituted. " . . . that", it seems to me is what’s involved in the consentual divorce.

Commissioner Langrock made the point in response to the motion — and I agree with him on that — that if we introduce these factors about children and give the judge "whether", we are actually making divorce harder in the states that have all sorts of ridiculous fault tests. Today, for example, if you have had absence equivalent to desertion for a year, or whatever the statutory period is, the judge cannot deny the divorce on the ground that there are children.

MR. DAVIS [Tex.]: Mr. Chairman—

MR. MERRILL [Okla.]: Commissioner Davis, if you don’t mind, {A41} I would like to comment on one aspect of Commissioner Dunham’s comment, to put the matter in perspective.

What the Conference did last year in Committee of the Whole was simply to sustain the principle that irretrievable breakdown should be the sole ground for dissolution. It did not undertake to specify a particular method of procedure or to specify whether by certain types of filings the court could be required to reach the finding of irretrievable breakdown, and it is through the process of debate which we have been through at great length over the past year that we have finally evolved to the point that we feel that we simply cannot properly draw an Act which eliminates the authority of the court to determine the question of irretrievable breakdown.

Now, this does not mean that you are putting into the hands of any recalcitrant judge the authority to delay and prevent divorce from now on out, as Commissioner Langrock puts it, or for an unconscionable time. The procedural arrangements are such that eventually you get your decision, and it has got to be a decision based on the evidence, which will include the parties’ position as to the situation in which they are put.

I frankly expect the course of decision under this Act, and the way the courts will function under this Act, to {A42} parallel very closely what our courts in my own State have done with the concept of incompatibility. In fact, the whole trend of the decisions there and the actual proceedings under it have seemed to achieve under the style of incompatibility exactly the result that it is hoped will come from this Act under irretrievable breakdown.

So I would like to lay the ghost, if I may, of any fear that this is a device for holding people together forever.

MR. DAVIS [Tex.]: I think my comment goes very much to what Commissioner Merrill says. It is my recollection that last year there were certain tests in this Act as to what constituted an irretrievable breakdown of marriage, and I understood that those were in to keep a recalcitrant judge from deciding that there is always a chance for every marriage.

Now, of course, there’s the right of appeal, but I’m wondering if after the judge has made the findings of fact — how effective some of those appeals may be; and it seems to me that some of the tests that you had in before were good tests to prove that the marriage — and compel a finding by the court that the marriage had — irretrievably broken down.

MR. LANGROCK [Vt.]: I must disagree a little bit with Professor Merrill. I think I hold the world’s record, having lost four uncontested divorces [Laughter] — and I’m dead serious {A43} about this. In all four cases tragedy resulted. And to leave it to a judge — I think the first speaker talked about the individual standards of the judge. He would like to impose more standards, and clearly set them forth. I think you should take away the discretion of the judge where two parties have decided there is no marriage.

CHAIRMAN READ: I will ask for the moment that you confine your remarks to the motion.

MR. LANGROCK [Vt.]: If I may, I don’t think I’m going afield from it. What I am simply saying is that the motion was asking to put more standards into this particular area to guide the judge in making this judgement. I am saying that if you put the standards in, you are going to create havoc. If you leave it the way it is, with no standards, you are going to create havoc. What you have to do is take out the discretion of the judge when both parties say there is no marriage here.

MR. DUNHAM [Ill.]: Well, we are in an odd parliamentary situation; because Mr. Langrock and I didn’t get the floor first, we’re in the position of having to vote no on a proposal to add further restrictions which are not necessarily contained in the word "whether". I suppose what we have to do is vote no on that, and if we are successful, then I would like to make a motion that the word "whether" be deleted, and that the {A44} word "that" be inserted.

CHAIRMAN READ: That will be in order in due course.

MR. JESTRAB [N. Dak.]: Again, I think that this could be resolved in procedural terms that are familiar to lawyers, and you could recite in the Act that if an affidavit — or where a party has testified by means of affidavit in a courthouse — that there shall be a conclusive presumption that the marriage is irretrievably broken. That language is familiar to lawyers, and I suppose for that reason you don’t want to use it; [Laughter] but it is at least something that we have worked with before, and it’s done in other actions.

You will find it very often in real property, where there is a requirement that you search for people in the chain of title, and if you file an affidavit, in the language of the statute that’s enough. So this is something that we’re used to; but, again, probably you don’t want to use it. [Laughter]

CHAIRMAN READ: The motion is that language be added to subsection (a) of Section 305 requiring consideration of the welfare of minor children, if there are any.

MR. JOINER [Mich.]: Point of order. It never received a second.

CHAIRMAN READ: Seconding is not required under the {A45} rules of the Conference.

[The motion was put to a voice vote and was lost.]

MR. DUNHAM [Ill.]: Now I would like to make the motion that in line 5 of Section 305 the word "whether" be deleted, and that the word "that" be inserted. And I take it, from the explanation of the Committee at this point, that that’s not a change of style.

MR. MILLER [La.]: I’d like to speak in opposition to that motion. If we are to be that liberal, why go to the extent of having any judicial proceeding? Why not merely permit the two spouses to file to the effect that the marriage is irretrievably broken, and that it may automatically be dissolved?

MR. BURDICK [N. Dak.]: I join the opposition to the motion. Our Rules of Civil Procedure do not permit the taking of a default judgment without prima facie evidence in support of the petitioner, or the complainant. This would be at great odds with our practice, and I oppose it.

In other words, you still would have to submit some evidence in support of a petition before a judgment, even by default, can be issued, and I think it’s a good practice. We have followed it ever since I have been a judge, which is quite a few years now, and I would oppose this automatic decree.

MR. BRAUCHER [Mass.]: Mr. Chairman, the last two speakers {A46} seem to me to have misconceived what is being proposed here. As I understand it, there is an earlier section here which tells you whether you will grant the decree dissolving the marriage, and this is only one of the steps that have to be gone through, and there are other steps that have to be gone through.

So I think Commissioner Miller’s point is not well taken. This is not just a ministerial thing. There has to be a judicial proceeding to take care of the property and the custody of the children, as well as the finding of irretrievable breakdown.

Now, as I understand Commissioner Dunham’s motion, this does not go to a default judgement. This is only the case of a consent judgement, where both parties apply for the judgment; and so the remarks that relate solely to default are no apropos. I don’t think in North Dakota there would be a requirement that you have prima facie proof in the ordinary civil action if both parties stipulate that the finding may be made.

MR. BURDICK [N. Dak.]: What Commissioner Braucher says is partially true. This would not be true in the default situation; but, nevertheless, the court must make an automatic finding of irretrievable breakdown. There is nothing left as far as the marriage relationship is concerned, and the court would have to grant the dissolution; and this I would be opposed to, {A47} for the reason that the court may wish to extend, with another two or three months of counseling and further effort, to determine that this marriage has in fact broken down. The parties may say so, but they may not mean it, and this would allow the court a little bit of waiting time before having to make this final determination.

I invariably see parties come into my court completely at odds on many things, and yet in time they become reconciled, and for that reason I would oppose imposing the duty on the court to make this finding irrespective of granting the decree in other matters automatically.

MR. SULLIVAN [Mont.]: Mr. Chairman, in explanation of Mr. Braucher’s comment, I think that if you look at line four, when one of the parties has so stated and the other has not denied it, this does permit a default situation.

MR. BRAUCHER [Mass.]: I stand corrected, Mr. Chairman.

MR. FRASER [N.Y.]: I don’t see what the point of this "after hearing" is. What’s the point of having any hearing, if the court is bound to make a definite finding of breakdown? What’s the hearing for?

MR. MERRILL [Okla.]: In answer to Commissioner Fraser, may I make the point that the effect — or the fact — of the hearing and the taking of the testimony at the hearing will give the {A48} opportunity for the party who in some way, either by pressures or motives that for the time being seemed adequate to overcome his or her indisposition to the divorce, or her feeling that there was not irretrievable breakdown — that was overcome — and that he did respond to those pressures, signed the statement and so on, and now has come to the conclusion that maybe there is some chance to save things, or has come to that conclusion lately, that at the time had a feeling of despair about the marriage.

This does give the opportunity for a last minute attempt to save, to think through, to consider whether or not the breakdown really is there, and this is the reason for the hearing. This is the reason — the basic social reason, I think, why the Committee has changed its approach from the approach which we were thinking of last year, of having certain situations in which automatically the court was called upon to make a finding of irretrievable breakdown, simply because the parties either (a) had jointly at one time executed a verified document that the marriage was irretrievably broken down, or that one party had so stated and the other had not denied. It was in order to take care of the social interests where there may be a possibility — a reasonable possibility — for reconciliation, to give the court a chance to carry the matter along {A49} that far, that we came to the conclusion that we should not require an automatic dissolution on the basis simply of affidavits, moving papers, and so on.

MR. MILLER [La.]: May I speak once more in opposition to the motion?

I understand from Charlie Joiner that the Conference at some earlier meeting at which I was not a member had voted against having any sort of interlocutory decree possible under this Act. In our State, for example, we have divorce and we have legal separation, and in many instances a legal separation is granted rather than an outright divorce. Matters of custody are taken care of. Matters of preservation of property are taken care of, but this period of waiting is required in order to permit the possibility of reconciliation, and it has been my experience that in many instances there has been such a reconciliation.

Now, under this statute there is no decree of separation possible unless both parties request it, as I understand it. The only instance in which a decree of separation, rather than an absolute divorce, can be entered into is when both parties request it.

Now, that’s a far step, and I think it’s a much greater step to say that the judge has absolutely no discretion, {A50} because if you are going that far, then certainly in the instance of a childless marriage if the parties present a notarial instrument, and say, "We have solved our own property rights; we have no children; here’s our notarial agreement of irretrievable breakdown, recorded in the courthouse," then why not permit the marriage to be dissolved, if the court is to have no discretion whatever?

CHAIRMAN READ: We have some comment from the Committee.

MR. MERRILL [Okla.]: I was really going to respond to Commissioner Miller’s impression. I think it is more proper to say that the legal separation may not be decreed if one party objects thereto, not if both parties consent. There is, perhaps, a little difference between both parties consenting and one party objecting. But otherwise, Commissioner Miller, your statement is correct in principle.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’d like to apologize to you and to the members of the house for misstating the effect. I did misspeak; and it seems to me Mr. Dunham, with whose views on this I think I associate myself, has made the wrong motion, and to correct the situation I would like to move a substitute.

The difficulty is, the "after hearing" doesn’t make {A51} any sense, and the default thing raises troubles in North Dakota, and so forth. I would like to make a substitute motion that it’s the sense of the house that on consent of both parties the finding of irretrievable breakdown should be made.

Maybe that’s not clear enough. I’d like to leave the drafting to the Committee, because I don’t think the simple change of "whether" to "that" quite does the job, and I don’t want to change the North Dakota practice on default judgements, but it seems to me where both parties apply for the divorce, the finding of irretrievable breakdown should be made.

Now, there are some factors that should be satisfied in order to grant the divorce, and I don’t want to disturb that either.

MR. DUNHAM [Ill.]: I consent to this modification of the motion, that if it is a default judgement type of situation or a case where both parties have not petitioned, then it seems to me the "whether" language is all right; but where both parties have joined in the petition it seems to me the court should be required to issue the decree of irretrievable breakdown, and I will accept Mr. Braucher’s substitute, because I think it does what I want.

CHAIRMAN READ: I think it states the issue more clearly. {A52}

MR. CUNNINGHAM [Md.]: I wonder if there is any middle position between the Dunham view and the present Committee view; and let me just throw this out as a suggestion.

It seems to me that there is virtue in the automatic finding, the Dunham view, in the case of consent, and perhaps also in the failure to appear. I wonder, though, whether a right in the court to delay for 30 days, or some period, the recording of this finding — in other words, it will require another hearing and appearance of the parties in 30 days — could be a device to take care of the minority of cases where it’s all going through too fast and there’s something that may be wrong, without getting back into the whole problem of finding grounds.

MR. BURDICK [N. Dak.]: I don’t find the substitute motion too offensive with respect to childless marriages, but where minor children are involved, I don’t believe that that automatic feature should be provided. I think that there the court should consider sort of a cooling-off period, even though the parties state the marriage is irretrievably broken, where there are minor children involved. I think the court should put the brakes on it, and if this motion is to prevail, I would certainly want to offer that qualification by a subsequent motion.

MR. KULP [Camden, N.J.]: I can’t conceive of any circumstances {A53} where both spouses consent to the entry of a judgement where there shouldn’t be at least some testimony taken and some hearing had. Too many times in my own experience I have had young people come in and talk about a divorce when their marriage has only endured for a day, a week, a couple of weeks, a month, and I just don’t feel that that’s the sort of thing where they can determine by themselves that that marriage is irretrievably broken.

It seems to me there should be some slight restraining influence, if you want to call it that, that they must at least state in a place where it’s more than talking between each other what are the factors and contentions that actually have led them to that conclusion.

I wonder whether in the complaint, although we’re well past that point, where they set up the fact that the marriage is irretrievably broken, the facts should not have been required — in the complaint itself; in other words, to take the time to sit down and analyze what are the real facts that bring it to the breaking stage. That might be helpful.

MR. DANA [N.Y.]: Mr. Chairman, as an abstract matter, if we were a legislature, we might agree that under the new concept maybe the petitioner should be able to get a decree of divorce by merely signing a paper, but I think we have to be {A54} practical and pragmatic about it. We each have to take this back to our own states, and our legislatures have thought that a divorce is something that the court does grant. If we passed the motion made by Commissioner Dunham and Commissioner Braucher, I think in each state we could get it passed, if they said, "This absolutely allows the parties to file a piece of paper," and if we could defend by saying, "No, that is not true. The court still has to hold a hearing, and the court makes the decision whether or not it’s irretrievably broken." I think we could achieve many of the purposes of the Act, including these novel provisions which I am in favor of, if we could say, "It’s all done under the aegis of the court, and the court must participate."

So I think we have a pragmatic thing here.

MR. LANGROCK [Vt.]: It seems to me that we are being totally hypocritical. Again we are talking about interfering with people’s decisions as individuals. It seems to me what you are really talking about here is poor people and rich people. This is the law for the rich people in the country today. Anybody who has enough money — people who agree that they want a divorce — can get a divorce. We’re talking about a larger scope of what the law already is.

We tell two people who have worked out matters that {A55} some judge, who is going to hear the matter for fifteen minutes on a crowded docket, can say, "Well, you have to live together for another six months", or another year or another ten years. That builds in the hypocrisy that we’re trying to get out of it. If you want the formality of a hearing, just to bring it into the court system, I have no objection, but I do not feel that a judge should be able to say: "Your marriage isn’t broken down," when you have got two people who say it is.

MR. CALLOW [Wisc.]: I am inclined to think that there are two things that are important for this Conference to recognize, and there is a very strong sentiment by many people to believe that there should be a judicial determination. We have heard quite regularly that this bill would not be acceptable unless judicial determination was retained.

The second thing about it is that this does bring the people to the court for the purpose of evaluating in that courtroom the causes that have brought them apart. Many of us preside in these courts and see these people come to court, and it is not unusual for people at that moment of examination in the courtroom to recognize that their differences were not nearly as great as they thought they were in the past, and I’m satisfied that that courtroom appearance, the offering of testimony, though it may occur only in some cases, is such that {A56} they have suddenly evaluated the very thin problems that have kept these people apart during the period of temporary separation, and I’m satisfied that the court proceeding is very salutory in bringing people to the true evaluation of their marriage, and I would urge that this motion be defeated.

MR. BOATWRIGHT [Va.]: Mr. Chairman, Commissioner Braucher’s motion, I think, should be supported if he will add the provision for a hearing. I don’t know whether that would be agreeable to him or not.

MR. BRAUCHER [Mass.]: My motion did not deal with that subject.

MR. BOATWRIGHT [Va.]: I understood your motion to be, sir, that you wanted it automatic in the case of the two parties agreeing.

CHAIRMAN READ: As I understand the Commissioner, he wants it automatic, but he doesn’t mind if it’s automatic after a hearing. [Laughter]

MR. BOATWRIGHT [Va.]: If you are not going to provide for a hearing, then it seems to me you ought to really simplify and speed the thing up by merely authorizing the parties to file a certificate in the office of the clerk of the court — no more — saying, "We’re divorced." I understand that’s the Russian style. [Laughter] {A57}

Now, all of us know that many of these husband-and-wife divorces are prearranged. Everybody is agreed on what’s going to be done. The property settlement is going to be made; and there can be cases, such as the young couple, in which the judge can do some good, but in 99 per cent of the cases no judge is going to be able to change them, and you can’t stand in this social force which is going on and change it by putting some law on the books.

It seems to me that it should be automatic with the provision for the court to hold a hearing if the court so desires, and furthermore, the hearing can be long or short. In some cases the hearing is going to drag on.

The gentlemen from Vermont who lost four cases uncontested — it sounds like he was practicing in one of the counties in Virginia where the judge didn’t like divorce, and everybody got turned down on divorces, and the inevitable result was that they switched over to a neighboring community and got divorces there.

So I hope that the Conference will adopt the Braucher motion with the provision that a hearing would be provided.

MR. DUNHAM [Ill.]: I would think the hearing should be in there. There is a place for the hearing in the sense of the court convincing itself: Are the parties of the same opinion {A58} as they were when they filed their petition?

What I want to be sure of is that, if the court is satisfied that the consent is there, the court shall issue the decree.

MR. ABRAMS [N.J.]: I’m sorry to disagree with my colleague from New Jersey, but I want to support the motion. I’m not one of those who have such great faith in the judicial discretion, and particularly in matrimonial matters, and I think of this in terms of some judges that we have where I come from who have a very great variety of views with respect to what constitutes, for example, cruelty.

We have three grounds for support: adultery, cruelty, and desertion, and with respect to desertion and adultery there is no discretion in the judge, if the facts are there and established. Then he must grant the divorce. It is on the ground of cruelty where you get involved in the personal relationships of the parties.

Now, when a judge in a hearing under this matter has a right to decide that, although adultery has been committed by the party, he should not grant the divorce because in his opinion it is not irretrievably broken, or if one party has moved out on the other that possibly they could get together again, and still should be compelled to live together — We had {A59} a judge in New Jersey — I won’t mention his name — who used to be called "Get ‘em in Bed." [Laughter] We have rules of corroboration, but he wouldn’t abide by them. He needed more direct, eye-witness testimony. I don’t mean to introduce levity into this, but it’s a fact of life.

I have known plenty of judges who I wouldn’t like to have the right to decide whether a marriage is irretrievably broken, based on the testimony of the parties. If they don’t feel it’s good, the judge should not have much to say about it. And I believe that the idea that a judge can sit down and say, "Well, now, you young people should do something different" is a myth. If we are going to put a hearing in here for political reasons, and decide that we don’t want, for political reasons, to just let the parties sign a paper, like they used to do, but no longer do, in Russia, that’s one thing. But if we want to patch it politically, then I support the motion to have a hearing to establish that they are of the same mind they were when they signed the petition, but that’s as far as I think it should go.

MR. BURDICK [N. Dak.]: I would just like to add one further word. Every year in all of my counties we set up orders to show cause why certain actions should not be dismissed, and with two-thirds of these cases we ultimately dismiss them, {A60} because there has been no action taken, cases where the parties have brought a divorce case and later reconciled, went back to live together, and solved their own problem.

So a great many of these actions are started at a time when the parties are angry at each other, and eventually reconcile, and this happens so frequently that I certainly think that there ought to be some cooling-off period, and especially in the cases where there are minor children.

[Calls for the question]

CHAIRMAN READ: Before the question Judge Gibson would like to speak.

MR. GIBSON: Mr. Chairman, I would like to say a few words on this motion, because it goes to the entire heart of the Act. I think the Conference should understand the importance of the motion.

Now, if by this Act you want to allow a consensual divorce, a divorce by registration, why, now is the time to decide that fact. I don’t think many of the fifty legislatures in the states will take an Act that provides for consensual divorce, and what it amounts to if the motion carries is that you are using the court in a ministerial capacity to carry out a clerk’s function.

If you want to do that, go all the way, then. Don’t {A61} get the court involved. You don’t need a court order ordinarily to get married. Now, if you want to allow a dissolution of the marriage by a registration, enact a section to that effect. But I don’t think many of the legislatures will buy that.

If you want to camouflage it, then, by saying, well, we are using a judicial process because the parties have to file a petition, then when they file the petition the judge has no discretion. The judge has no discretion in the matter.

Now, this is based on a sound judicial discretion. The judge uses its discretion, which of course at times a judge does, or will. There is a remedy for that. But I don’t see how you can legislate on the basis that in every action a judge is going to be using his discretion. If he does, of course, he shouldn’t be a judge, and he won’t be a judge very long.

Now, to take care of one or two isolated instances in a state or a county by taking away all judicial discretion in this matter — you are making an Act, then, that is entirely foreign to the concept of divorce at this time. I will admit that this is an approach that is advocated by some groups, and some people favor it. It was considered in England, and turned down. It was proposed to the California Legislature, {A62} and turned down; and I don’t think this group should promulgate an Act saying that you can get divorced by consent. If you do, you are going to kill the Act in many states or kill the opportunity for adopting the Act.

I think the motion should be defeated.

MR. JESTRAB [N. Dak.]: I am going to recite, upon the request of a very distinguished member of this body who is unable to be here, the reason why some people feel that this should be granted without discretion on the part of the judge.

I don’t know how you want to phrase it, but the idea, I am told by this very distinguished member of this organization — the reason is that when people do not wish to live together, either one of two things is going to happen. They are going to be forced to continue the relationship against their will, in which case the relationship will become more bitter, corrosive, destructive, as time goes on, or the other alternative: They will swear to anything.

If this latter course is taken in order to get a divorce, they will spread upon the record things that will harm them in the future and may do harm to children yet unborn. It is out of a desire to keep the record clear and to avoid that sort of thing that people who espouse this point of view take the position that they do. {A63}

I bring that to you at the very special request of a very distinguished member of this body.

CHAIRMAN READ: The motion has been called for, and the motion is for the sense of the house on the proposition that Section 305 be amended to provide that a marriage shall be found irretrievably broken when both parties consent after hearing.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion loses by about 53 to 30.]

MR. WILBERT [Kans.]: I rise with a great deal of humility, because I realize that the Committee has labored hard and long, and I always support committees, but I have to enter a special appearance here because Kansas has just recently enacted a part of a divorce law in regard to subsection (2) of subsection (b), and this is where the court makes a finding that it’s irretrievably broken, and then we come to the "or" part of it, which means that he’s probably in doubt.

Now, if he’s in doubt, he can adjourn it for 30 or not more than 60 days, and what I’m talking to is "and may suggest to the parties that they seek counseling." We have got an almost word-for-word statute in Kansas now that says this, and the parties may petition, or the court may send them to a counselor, if there is a counselor in that county. {A64}

Well, you use the word "shall" at the beginning, and you say he shall do two things; but then you put the "may" part in, and my only plea to the Committee is: Let’s keep the "shall" in, and have it that the court shall require that the parties seek counseling.

The reason I say that is that I have only had one case — and I just want to give this to the Committee from my one experience — but lawyers are adversaries, and I’m afraid that they are not always absolutely truthful with the court because of their adversary position, and I felt my party could get together with the other party if they would seek the counselor.

The other lawyer said: No, they will never get back together again. I suggested that they meet that evening at 7:30 in an office with just some friends, and after that evening — the next morning — they both said they were going back together again.

But what bothered me was that the attorney on the other side said: No, these parties will never be reconciled. My party will never go back. But he wasn’t intellectually and, I don’t think, even judicially honest with the court. But my point is that he said: No, I don’t believe in this conciliation thing. It’s a lot of hooey. {A65}

Now, if you use the "shall" down at this point — and the judge is in doubt, or else he wouldn’t use subparagraph (2) — then it looks like he ought to make them go to some kind of counselor. I may be wrong. I do not claim great wisdom. But sociologically, if we are going to make divorce easier, I think we ought to at least make them go to a counselor, and make it "shall" if the court is in doubt under sub (2).

That’s my only point, and I want to plead not guilty to having microphonitis.

CHAIRMAN READ: Is it your point that the judge shall suggest counseling, or shall require it?

MR. WILBERT [Kans.]: Shall suggest. Well, no — I’m sorry. You said it right: require. I’m sorry about that, but that’s the way I feel about it. What I want to do is to make the judge do it, is what I’m saying.

CHAIRMAN READ: To require counseling in all cases?

MR. WILBERT [Kans.]: Because I don’t like — if you are going to let them get loose, you ought to make them have counseling before they do.

CHAIRMAN READ: Do you want to make that as a motion?

MR. WILBERT [Kans.]: No, I’m not going to burden you with that. If you don’t think it’s any good, just kick it out.

MR. MERRILL [Okla.]: And for the benefit of the Committee of {A66} the Whole let me say — and also Commissioner Wilbert — that we recognize the force of the consideration that he advances. On the other hand, we have been faced with a strong constitutional argument that compulsory counseling may well be unconstitutional under the principles, at least, that lie back of some recent decisions. There has been some very strong debate on that issue that has gone on in the legal journals, and we felt that it was wise, therefore — plus another thing, that a lot of our advisors have urged that compulsory counseling is not in the best interests of the parties; that the best thing to do was to give the folks the idea that you ought to think this over, and you ought to get counseling; and this was back of our feeling.

We will think it over in accordance with the chair’s statement, but I do think that we should say to the Committee that we have given a great deal of consideration to it already, and for the reasons stated we came up with the draft in the form that it now is.

MR. DOWNS [Mich.]: Mr. Chairman, I would like to make a substitute motion on 305 (a). I know it’s about noon. I’ll hold it until afterwards; or if you want, I can just make it, and you can discuss it after the noon recess.

MR. CALLOW [Wisc.]: What’s the substance of it?

CHAIRMAN READ: I think, because of the reports we {A67} have coming now, we will have to take that up tonight.

MR. CALLOW [Wisc.]: Can we just have the substance, so we can be thinking about it?

MR. DOWNS [Mich.]: Yes. The substitute would be in 305 (a), after the word "hearing" — "with both parties personally present, make a finding that the marriage is irretrievably broken if there are no children under 18 and no pregnancy."

CHAIRMAN READ: You will renew that this evening?

MR. DOWNS [Mich.]: Yes.

MR. LEFLAR [Fayetteville, Ark.]: Mr. Chairman, I might for the same purposes make a very quick suggestion that the Committee could think over and perhaps avoid further discussion later, in reference to Section 305 (b) (2), lines 11 and 12. Joe Barrett and I were discussing this together, and he was going to make the point, but he had to leave.

It is in reference to the time limitation which is set there, not less than 30 or more than 60 days, and particularly "or more than 60 days". That limitation would put the judge in a very limited strait jacket in reference to the time within which he must act. There might be circumstances in which the action could not be taken within 60 days, and there might be situations in which a little more than 60 days would be useful for purposes of securing outside advice or bringing the parties together or helping them in any way; and the thought that we had was merely that the 60 day outer limit might be too binding. There might be situations in which an unlimited amount of time, as far as that is concerned, would be more advantageous for all purposes.

MR. SULLIVAN [Mont.]: Mr. Chairman, I move that the Committee of the Whole rise, report that it has had under consideration the Uniform Marriage and Divorce Act, that it has made progress, and that it begs leave to sit again at this Conference.

CHAIRMAN READ: You have heard the motion.

[The motion was put to a vote and was carried.]

* * * * * * * * *

Mr. Harold E. Read of Connecticut presiding;

Mr. Floyd R. Gibson of Missouri presenting the Act.

CHAIRMAN READ: Continuing with Section 305, is there anyone who cares to continue with Section 305?

MR. COWEN [Athens, Ga.]: Mr. Chairman, with respect to 305, (a) I move that we add an additional sentence, to this effect: If after hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, a presumption is created that the marriage is irretrievably broken.

CHAIRMAN READ: Is there comment on the motion?

MR. SULLIVAN [Boise, Id.]: Let’s hear it again.

MR. COWEN [Ga.]: I will reread the motion. The intent is that if both parties are present, both parties are represented by independent counsel, and both parties state that the marriage is irretrievably broken, there is a presumption that the marriage is irretrievably broken.

MR. WALSH [St. Paul, Minn.]: Is there any way to rebut the presumption?

MR. RUUD [Austin, Tex.]: Evidence. {70A}

MR. WALSH [Minn.]: Who would ask for it? The judge?

CHAIRMAN READ: There is provision for counsel for children. I think counsel for children could present evidence to rebut it.

MR. RUUD [Tex.]: Not the way it is drafted now.

CHAIRMAN READ: Excuse me. I presume that it would be the responsibility of the Court to seek the evidence, then.

MR. WALSH [Minn.]: Thank you.

CHAIRMAN READ: It is the sense of the Committee, I think, that a motion of that magnitude might lie on the table until we have a few more Commissioner here. When we do have a few more, Commissioner Cowen, I think I will ask you to read it once or twice again, and see if we can proceed.

Are there other comments on 305?

MR. DAGGETT [Baton Rouge, La.]: Mr. Chairman, we have in Louisiana a separate thing that the Court may order of a legal separation which serves a very worthwhile purpose. This, on consideration, only calls for a voluntary separation agreement, which takes care, of course, of the problem of property settlements, the partition of community assets, the custody of children. Here the advantage, however — and I’m not making a motion, but would simply like the Committee to consider that it be at least a permissible alternative order by the Court from a final {71A} divorce.

We have in Louisiana a large population percentage-wise of Catholics and Episcopalians who, for philosophical or moral reasons, do not believe in divorce at all, and many of the Catholic lawyers will refuse to take a divorce case, thereby depriving the population of adequate, proper legal representation. Yet they will provide for something less; namely, the legalization of living separate and apart, the handling of property problems and custody problems. So that I at least would like for the Committee to give serious thought to something else other than the one solution of a final divorce action.

Have I misread the Act?

PROFESSOR LEVY: 301 provides for a decree of legal separation, but both parties have to agree.

MR. DAGGETT [La.]: What about if one party is willing to sue for the separation? Has any thought been given to the possibility that one might be legally divorced — by which I mean he can get a new license to remarry — where the other one could have just a separation, thereby satisfying his religious, moral and philosophical scruples?

At least I’d like the Committee to consider it and give it some thought, anyway, as to an alternative possibility. {72A} We are talking, really, about a third of the persons who marry, at the most, who divorce, so we’re not concerned about the two-thirds who make it work. In the one-third where it doesn’t work we do have a definite segment which would like something in between.

PROFESSOR LEVY: There is in 301, as I have indicated, a separation on the finding of irretrievable breakdown where both parties want it. We did that because we didn’t like the idea of permitting one person to remarry while the other person remains married.

For another thing, we thought it unfair for the person who wants to remarry, if he or they can prove irretrievable breakdown, to be deprived of a divorce simply at the whim of the other party. And, finally, our advisors suggested to us that the religious principle at stake has to do not with divorce at all, but with remarriage, and under those circumstances the Committee felt that it was appropriate for the law to leave it to the religious fervor or the conscience of the person who felt that way to keep from remarrying, rather than to prevent the other party from divorcing and remarrying.

MR. NEEDHAM [Providence, R.I.]: Mr. Chairman, this point that was raised, again, as the good gentleman from Louisiana says, {73A} presents a problem in his state, the same as it does in mine. We are, perhaps, the only state in the Union that is 65 per cent of one religious persuasion. I think that once you establish a program where a divorce becomes a matter of right, you eliminate the concept of fault, and if a petitioner goes into Court and says, "I would like to have a legal separation; the marriage is irretrievably broken," and the respondent, or the other party, says, "Oh, no, it is not, but if it is, I want a divorce, not a legal separation" — and then we say, "Well, this party has a right to the divorce, even though they were denying that it was irretrievably broken" — in my jurisdiction at least, we have three possibilities.

We have a divorce from the bonds of marriage; we have a mensa et thoro petition, which is a divorce from bed and board; and then we have a third proceeding which is a separation, or separate maintenance, without the commencement of divorce proceedings, and at least in my jurisdiction we are going to have considerable difficulty if we don’t have some way that those who have a certain religious persuasion, seeking the intervention of Court, can be protected, being the person who went to Court in the first place, in holding a status of separation rather than dissolution. There still are people in this country who believe that marriage was intended {74A} to last until one of the parties died, and this presents a rather serious social problem in the State of Rhode Island, and I just throw it out along with what the other gentlemen have said. I think it’s a serious social problem, and it’s not only the Catholic Church that believes that divorce is — your religious advisor is correct in advising that excommunication, or the sanction of excommunication in the Catholic Church is only administered to those who remarry, but there is the religious tenet in those areas where divorce — the elements of scandal and the evil to be done in a moral sense by a Catholic seeking the intervention of a Court in an attempt to destroy the bonds of marriage, which he takes as a serious obligation and which he believes as a matter of faith does persist until one dies — there is a certain social and moral obligation by way of not giving scandal to his neighbors and friends, and in a community where 65 per cent of the population espouse the same belief, this can be a serious problem.

I don’t know what it would be in another community, but I suggest there is a very real issue here.

CHAIRMAN READ: Thank you.

MR. MERRILL [Norman, Okla.]: Mr. Needham, were you present, may I inquire, last year at the debate in which we were told by Commissioner Z’berg of California that there was no opposition {75A} from the Roman Catholic religion or other religions, for that matter, to the concept of irretrievable breakdown, and the California statute, which does not make provision for a lasting divorce a mensa et thoro—

MR. NEEDHAM [R.I.]: I would say, Commissioner, first of all I was, unfortunately, unable to attend in Dallas. However, with the great rejuvenation and ecumenical movements in the Catholic Church in recent years, I suggest that we may find the leader of a pastoral group in California saying that there is no social — or there is no basis for objection.

In Rhode Island we have, perhaps, one of the most stringent of bishops throughout the States, and we do have a very strong leader in this area. Our procedure in Rhode Island as it relates to commencement of separate maintenance, without starting a divorce petition, was started several years ago in order to eliminate the fact that a Catholic would have to start under our proceeding a divorce action, although it was mensa et thoro, because the word "divorce" was odious to not only the ministry but also was odious to some Catholics who wanted to have a separate maintenance, and so there was a separate statutory proceeding.

I think, personally, strictly on the moral issue involved and in a philosophical way, I personally do not {76A} believe that there is any ecclesiastical sanction to a Catholic seeking a divorce if the marriage is irretrievably broken, and in order to protect the property rights of the particular father and mother, or the various spouses; but this is a personal opinion rather than anything attempting to say that any diocese or any branch of the Catholic Church holds that way.

MR. MERRILL [Okla.]: Well, we do appreciate the problem that Commissioner Daggett and you have raised, but we have also given a great deal of thought and discussion to it over the three years that this has been pending, and it also, of course, has received discussion in California and in Iowa, where I’m sure there is a considerable Catholic strength and considerable Lutheran strength, and of other denominations, and I feel that this does not necessarily pose the obstacle that perhaps you feel.

MR. NEEDHAM [R. I.]: I appreciate your remarks. I suggest it doesn’t propose the obstacle in the absolute. It may pose an absolute in some jurisdictions to adopting it, however.

MR. MERRILL [Okla.]: Thank you.

CHAIRMAN READ: Will you comment further on 305?

MR. BARRETT [Jonesboro, Ark.]: Mr. Chairman, I’d like the permission of the Committee of the Whole to raise a point on 305 (2). I {77A} don’t like to raise it tonight, when we have a poverty of attendance at this session.

My colleague, Dean Leflar, raised it just before noon for the consideration of the Committee, and I have since learned that the Committee has already considered it, and has rejected the thought being expressed. Consequently, I want to raise it in order to have the sense of the house as to whether or not Section 305 (b) (2) hamstrings or puts in a strait jacket the trial judge when there is an adjournment. And if that has already been considered by the Committee and rejected, as I understand it has, then I want to ask to have the views of the house, the sense of the house, on that hamstringing, but I want to do it when the Commissioners are present in such numbers that I feel that we would have a real and full expression from the Committee of the Whole.

May I have that privilege, say, tomorrow or the next day, when this comes up again?

CHAIRMAN READ: I think we should do it tonight, but we could lay it on the table until the cocktail hour is over. Within an hour I think people should be beginning to come back.

MR. BARRETT [Ark.]: May I bring it forth at that time?

CHAIRMAN READ: Yes, I’ll put you directly behind Commissioner Cowen’s motion. {78A}

MR. SULLIVAN [Id.]: Mr. Chairman, I apologize for getting in here a little late. I would ask if 305 (a) still reads the same as it does in the draft which we have.

CHAIRMAN READ: I believe it still reads the same way, yes.

MR. SULLIVAN [Id.] : I’d like to make a motion. This has been debated at considerable length in the Committee and in the Section. I’m sorry that Miss Mentschikoff isn’t here to present the proposition so much more eloquently than I can, but I would like to move that 305 (a) be amended to read, in line 4, "the court shall, unless disputed at the hearing, make a finding that the marriage is irretrievably broken".

In other words, this is just a finding of fact. If both parties agree by stipulation that this fact exists, or if the fact is undisputed, then the Court must find that this is a fact.

I think when it was discussed in the Section meeting on Friday most of the members of the Section agreed that under those circumstances if the Court should find it is not irretrievably broken, that that is error, and on appeal would automatically be reversed. If that is true, where the parties have stipulated by agreement or there is no evidence to the contrary, I think we should say the Court shall so find. {79A}

Now, there was considerable discussion, if you recall, that the judge should still have some discretion in making a finding in the absence of any proof whatsoever. I think this is wrong, and I think we should say so.

I agree that the judge, maybe, should have discretion in matters where his discretion is properly exercised, but this is not without precedent. Under the Federal Rules of Civil Procedure, which have been, I think, adopted by most of the states, if you have a suit on a promissory note, and there is a default, the clerk enters the judgement. So I think we have to say in this Act that the Court has discretion to find. Otherwise, in the absence of any proof whatsoever, it’s ridiculous. I think we should say exactly what we are doing.

MR. DANA [New York, N.Y.]: Mr. Chairman, I would like respectfully to speak against the suggestion just made, on two grounds.

First, it is the same suggestion which was made this morning and voted down, and I would like to suggest, as I did this morning, the reason why any similar motion, I feel, should be voted down, and that is that if we can get the Act in its present form adopted, it will be tremendous progress, because 95 or 98 per cent of the judges when they receive this petition uncontested will, despite the word "whether", sign the petition and agree that the marriage is irretrievably broken. {80A/81A} If we as a Conference are greedy and try to go after that last 2 or 3 per cent where there may be an arbitrary judge or a judge who is opposed to divorce — if we are greedy and go after that last 2 or 3 per cent by changing "whether" to "shall", we will fall flat on our faces when we all reach our own state legislatures, because there will be thousands of people in every state who would then be able to point to this Section as not only novel, but so novel that it permits divorce by agreement.

We have to continue, in my view, having it cast in the form of permission being asked of the Court, so we can tell our legislatures that we are asking only for a slight change in the law, but it’s still under the aegis of the Court.

So, to summarize this suggestion just made, I feel it’s essentially what was before us this morning.

CHAIRMAN READ: Thank you, Commissioner.

MR. JENNER [Chicago, Ill.]: Mr. Chairman, there is more than a quorum at present. So, Mr. Chairman, would you now conduct the meeting from this point forth without reserving matters?

CHAIRMAN READ: I am about to do so.

Commissioner Sullivan, it seems to the Chair that Commissioner Dana’s remarks are well taken, that your motion is almost identical to what was voted down this morning, and I think I will rule your motion out of order. {82A}

MR. SULLIVAN [Id.]: May I make one statement, Mr. Chairman?

CHAIRMAN READ: Yes, sir.

MR. SULLIVAN [Id.]: It is somewhat different, because my motion, I think, solves the problems that were raised by Commissioner Ruud. I think the phraseology of my motion solves the problem that concerned Commissioner Ruud, at least as expressed at the Section Meeting; that is, that the parties might, in an agony of controversy, both say: "Well, sure, let’s get divorced." And so they sign it and then they repent at semi-leisure.

So if at the hearing they dispute it, at least they have had a cooling-off period, and I think that solves the problem that was expressed by Commissioner Ruud, and that is why I think the motion which I have made is substantially different from the one which was voted down earlier today.

CHAIRMAN READ: Commissioner Cowen, would re-state your motion?

MR. COWEN [Ga.]: Mr. Chairman, it seems to me that the motion that I made earlier is a middle ground which might prove acceptable to all concerned. The motion was, and is: If at the hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, {83A} a presumption is created that the marriage is irretrievably broken.

Now, I take that to mean that after unusual circumstances the judge will act upon the rebuttal of the presumption, but as in the present case of an uncontested divorce, he has to satisfy himself that the grounds do exist, and therefore he would have the power to make further inquiry if he so desired.

CHAIRMAN READ: Will you remark on the motion?

MR. CALLOW [Waukesha, Wisc.]: I’d like to be heard very briefly.

I can only suggest that this Conference decided that the 10-day waiting period for marriage was too long. The Committee has reconsidered, and will ask you to consider three days as a reasonable waiting period, hoping that the sense of the house is that there be a lesser amount rather than bracketing the time to wait.

And if we consider that marriage can be entered into rather spontaneously, and if we permit people to just walk away from their marriage after a very brief time, we have not followed what we are accepting as the purpose of this Act, which is to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships, and I think that it would be unfortunate if we were to modify the Act as {84A} drafted by adopting this motion.

MR. DAVIES [St. Paul, Minn.]: Mr. Chairman, I’d like to suggest that Dean Cowen’s amendment does solve to a great extent the problem of the arbitrary judge whom Peter Langrock deals with, and permits the parties to get the divorce they need, but it does serve to protect the right of the judge to look at the circumstances, and does guard against the intoxicated divorce situation, and does bring the parties to Court in circumstances which will prevent a hasty filing, and so on, that some people have been concerned about.

It seems to me that he did characterize it as middle ground, and it does meet the objections that I have heard on all sides.

MR. VON HERZEN [Los Angeles, Calif.]: Mr. Chairman, Gentlemen of the Conference, it seems to me that this would become known as the "lawyer’s amendment." [Laughter] I believe that in so far as making the Act something that is palatable to the legislatures, the reverse would happen, and I believe that, as the Judge has indicated, it would make the Uniform Act very difficult to pass. I would recommend against it.

CHAIRMAN READ: Are you ready for the question?

MR. DAVIES [Minn.]: I don’t think the amendment compels each party to have a lawyer, but if they both do, then it helps {85A} create the presumption, but doesn’t stand in the way of 99 per cent of the judges of the country with one lawyer. I think it just deals with the tough situation of the unreasonable judge who just doesn’t like divorce.

CHAIRMAN READ: The question is on the motion to add to Section 305 (a) a sentence reading: "If at the hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, a presumption is created that the marriage is irretrievably broken."

[The motion was put to a voice vote.]

CHAIRMAN READ: The Chair is in doubt.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion is lost, 43 to 32.

We will now take from the table Commissioner Barrett’s motion, which is — Would you like to restate it, Commissioner?

MR. BARRETT [Ark.]: Mr. Chairman, I want the sense of the house directive to the Committee as to whether or not you put the trial judge in a strait jacket under 305 (b) (2). As the Section now reads, an adjournment cannot be less than thirty days nor more than more than sixty days, and I construe it as being mandatory, the effect of which would be in a large area of the continent of the United States, that the trial judge may be {86A} engaged in a lengthy trial on that sixtieth day, and he would have to adjourn it and take this up and then go back to his case. I’m sure that’s not the intention of the Commissioners here, whatever may have been the intention of the draftsmen.

What I’m saying is that you should not under those circumstances put the trial judge in a strait jacket, that he must dump everything else on the sixtieth day and reconvene this hearing. It can go on his trial calendar. The effect of this Section, as I read it, would be to completely destroy the ability of the trial judge to control his trial calendar.

So my motion is that the sense of the house is that the trial judge should not be in that strait jacket. What language the drafting committee uses to effectuate that result, I am not concerned.

MR. GIBSON [Kansas City, Mo.]: Commissioner Barrett, would it satisfy your objection if language were put after 60 days there, "or as soon thereafter as the case may be reached on the Court’s calendar"?

MR. BARRETT [Ark.]: That would be all right. The way I read it, you completely put the trial judge in a strait jacket.

MR. GIBSON: I think that should be in there, myself. I don’t know what the Committee thinks.

MR. BARRETT [Ark.]: Thank you, Judge. I was sure you would {87A} feel that way.

MR. GIBSON: I think the Committee accepts that suggestion of Commissioner Barrett.

MR. DOWNS [Detroit, Mich.]: Mr. Chairman, I submitted a motion before our noon recess. Since that time I have reworded this to be the sense of the Committee, that with the permission of the body I would like to withdraw my motion and present this in a two-sentence statement. [Passing a paper to Mr. Hellring]

Mr. Chairman and Members of the Conference, this applies to Section 305. I’ll read the two sentences, and then, if I may, speak very briefly to it.

First, there must be personal appearance by the parties at a hearing, so the Court can determine if the parties are still convinced the marriage is irretrievably broken.

Second, if the Court so determines, and there are no children under eighteen, then the Court shall find such marriage irretrievably broken.

I move that this be the sense of the Committee of the Whole regarding Section 305.

Mr. Chairman and Members of the Conference, if I sensed the feeling of the body this morning, I felt there were two things that were of concern to the Commissioners. The first was to be sure that any declaration of divorce, or {88A} dissolution of marriage, be done with court supervision, and not merely by filing a statement with the court clerk. This would provide that if people originally filed a petition or complaint for dissolution of the marriage, then at a court hearing subsequently the judge would have the opportunity to determine if the people were still of the same mind, and it would avoid the quickie, the one done under intoxication, permitting court review, and both individuals would need to be there so the judge could be sure that this was a voluntary action.

Secondly, this would only apply where there were no children under eighteen. As a practical matter, I think this would be applicable where young people marry without thinking it through too thoroughly, and have not yet had children. The other one would be those marriages of some duration where the parents continue the legal marriage until after the children are through high school, and then make the decision for a dissolution of marriage. This would not apply to a contested case. It would only be applicable if both parties to the marriage voluntarily came before the judge, assured him that they did desire the dissolution, that it was irretrievably broken, and there were no minor children under eighteen.

I believe this is a compromise, and, I hope, does {89A} represent what I think was the thinking of the body. Thank you.

CHAIRMAN READ: I take it, gentlemen, that this is the same proposition we have been debating, except for a consideration of the existence of children under eighteen and the requirement of a personal appearance, and I only mention that to state that I hope we can dispose of it without repeating all of the debate that goes with the basic issue.

MR. DOWNS [Mich.]: That statement is correct.

MR. BURDICK [Williston, N. Dak.]: I would have no objection to that motion, and I think it is pretty much the sense of the Committee of the Whole, but I would like to get rid of that early time for the court hearing, the second hearing in 305, not less than 30 or more than 60. I don’t know why you put in the 30-day minimum period. The parties may come in ten days later and say, "Judge, we have tried to get together and we just can’t get together."

I see no reason for the minimum period. The 60- or 90-day period would have some meaning, but I don’t see any sense to the 30-day period.

MR. MERRILL [Okla.]: I would like to ask one question of Mr. Downs to clarify his motion.

Now, the question is this. He speaks of the personal {90A} appearance by both parties as the Requirement No. 1. May I inquire what he envisions is the effect of this proposal on the situation which so frequently occurs where the other party to the marriage just isn’t there, and has been served by mail, and he just doesn’t bother to appear? Would this preclude the Court acting there?

MR. DOWNS [Mich.]: This would not preclude the Court acting, Mr. Chairman. This is a very modest proposal. It’s not intended as draft language and, if adopted, I would certainly expect the Committee to prepare the draft language.

MR. MERRILL [Okla.]: That’s what I wanted to know. I think we could get around that.

MR. DOWNS [Mich.]: This would apply only where both parties voluntarily determine the marriage is irretrievably broken, there are no children under eighteen, and the Court would have both parties physically present, so that the Court could be assured this was truly a voluntary action. This would not apply when one party is out of the jurisdiction, or a contested case.

MR. CALLOW [Wisc.]: I’d like to appeal to the Chairman to determine whether or not this is in order. It seems to me this is so consistent with that which has been considered by the house that it’s out of order. {91A}

CHAIRMAN READ: I ruled that it is in order, in that it raises the issue of children under eighteen and personal appearance.

[The question was called for.]

CHAIRMAN READ: The question has been called for.

MR. SPRADLING [Cape Girardeau, Mo.]: Speaking against the motion—

CHAIRMAN READ: The motion has been called for.

MR. SPRADLING [Mo.]: Well, is there to be no debate on the motion?

CHAIRMAN READ: No further debate.

MR. SPRADLING [Mo.]: Well, a point of order, Mr. Chairman. This is a new motion.

CHAIRMAN READ: State your point of order.

MR. SPRADLING [Mo.]: My point of order is that you cannot close debate by a simple call for the question. If you want to move the previous question, why, that is different; but this is a brand new motion, and the Chair has ruled that it’s a new motion and not out of order, so I think it’s entitled to some debate.

CHAIRMAN READ: The Chair requests that you limit debate, since the sensitive issues are identical; but proceed with your statement.

MR. SPRADLING [Mo.]: Well, if you have ruled that they {92A} are identical, I won’t have to say any more, but I thought you ruled that they weren’t.

The point I wish to make at this time, being a member of a state legislature and conferring with Commissioner Dana, is that we’re just having a recapitulation of the same thing, ringing on the same theme. This is slightly different, but what we are doing is making it possible to have divorce by agreement and have it ratified by the Court, and compelling him to do so under most circumstances. And while we sit here as Commissioners trying to develop laws for the benefit of our home states and our legislatures, and while I would agree, myself, personally, in principle that what you are trying to do is perfectly all right, and I would go for it, I can assure you that I agree with Commissioner Dana that you haven’t got a chance of passing it, and we have spent all this time working on a perfectly good bill with a chance that it will never go through, and then what have we accomplished for our constituents?

So I think in the interest of prudence and wisdom and knowing that we are not plenary here, but only advisory to state legislatures, we ought to vote this motion down.

MR. DANA [N.Y.]: I would like to supplement that by saying that the present motion really has two parts. The first asks that it be stated in this Section that both parties be present; {93A} the Section as it presently reads says "upon hearing".

Now, I’m not a trial expert, but I would suppose that either both parties were there, or one was there and the other was represented by counsel, or both represented by counsel. No judge is going to hold a hearing talking to himself in his own room. So the favorable color of the first part of the motion — namely, that you have got to have the parties present — I think tends to try to influence the Conference to vote in favor of the second part of the motion, which I believe has been voted down this morning.

CHAIRMAN READ: I was about to separate them.

MR. DANA [N.Y.]: Well, I believe that "upon hearing" would be interpreted as requiring that the parties both be present or represented.

CHAIRMAN READ: The first part of the motion is that there must be a personal appearance by the parties at a hearing, so that the Court can be convinced that the marriage is irretrievably broken.

[The motion was put to a vote and it was lost.]

CHAIRMAN READ: The second amendment is, if the Court so determines, and there are no children under eighteen, then the Court shall find such marriage irretrievably broken.

[The motion was put to a vote and was lost.] {94A}

MR. HILLMAN [Providence, R.I.]: Mr. Chairman, may I go to another part of 305 (b) (2) that concerns me somewhat?

I thought Commissioner Barrett was raising it, but apparently his objection doesn’t go as deeply as mine does. We have provided that when one party objects to the divorce, the trial justice shall adjourn the matter for another hearing not less than 30 nor more than 60 days later. But what happens after the 60th day, whether it’s the 60th day or the 61st, or whatever? According to lines 13 and 14, "At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken." I suggest that this is putting the judge in a stronger strait jacket than Commissioner Burdick suggested. May I hypothesize this case?

The husband and wife come into Court and the husband says it’s irretrievably broken. The wife says: "No, the trouble is his alcoholism." The judge continues for thirty days and directs the husband to seek assistance with his problem of alcoholism. After thirty additional days, or sixty additional days, they again appear before the Court. The alcoholism clinic reports that, yes, he is making progress, and there is some hope. As the statute is presently worded, the judge must at that time make a finding that the marriage is or is not broken. If he finds that it is not, because {95A} there is hope, they have to start all over again.

I suggest that there should be some opportunity given to the trial judge to give a further continuance beyond the sixty days, if he feels that it would be helpful.

MR. LANGROCK [Middlebury, Vt.]: I think I agree with much of what Commissioner Hillman has said. I’m willing to concede the Conference’s position as to 305 (b) (2), that we do feel there is a role for judicial discretion in the situation of the determination of irretrievable breakdown. The point that bothers me is, while I think we have got to have a longer period of time in which the judge may work — what I’m worried about is the perpetual situation, where one party wishes a divorce and is not going to live with the other party, and I think there should be some period of time where eventually the Court recognizes as a matter of law that this marriage is irretrievably broken.

I would, therefore, move to amend Section 305 (b) (2) so that it would read as follows: "adjourn the matter for another hearing or hearings not more than a year later, and suggest that the parties may seek counseling. At the adjourned hearing — appearance — the court shall make a finding upon the request of either party that the marriage is irretrievably broken." {96A}

The basic substance of this motion is that it gives the Court one year to work with the parties, and at the end of this period of one year, if the Court is not successful at this point, then the recognition of the fact that the marriage is irretrievably broken is a judicial fact.

MR. BURDICK [N. Dak.]: I’d like to ask Commissioner Langrock if he will accept an amendment merely stating "if the parties have not reconciled".

MR. LANGROCK [Vt.]: That’s quite all right.

MR. BURDICK [N. Dak.]: And with that additional language I would support the motion.

CHAIRMAN READ: The question is on the amendment to Section 305 (b) (2), providing for, in the case of an adjournment hearing, a hearing or hearings not less than 30 days nor more than one year thereafter—

MR. LANGROCK [Vt.]: Just not more than one year. [Passing a paper]

[The motion was put to a vote and was lost.]

MR. VON HERZEN [Calif.]: In response to Mr. Wilbert’s suggestion this morning, I suggest that we delete the word "may" in line 12, because, actually, it really is redundant. In that paragraph the Court can do whatever it wants to and whatever the facts indicate, and the word "may" really doesn’t {97A} do one single thing except weaken the situation from the standpoint of future consideration by legislatures.

CHAIRMAN READ: I believe the Committee accepted that change this morning, Commissioner.

MR. BURDICK [N. Dak.]: I would like to inquire if the Committee accepted my suggestion to delete that minimum 30-day period in line 11?

CHAIRMAN READ: I believe the Committee did not.

MR. BURDICK [N. Dak.]: Then I move that the words "less than 30 or" be deleted, so it would read "not more than 60 days".

CHAIRMAN READ: Will you remark on this motion?

MR. CALLOW [Wisc.]: And as soon thereafter as the Court calendar would permit.

MR. MILLER [Baton Rouge, La.]: I would think we ought to have at least some minimum period for an effort at reconciliation. Thirty days is certainly a short enough minimum period to at least accord the opportunity of reconciliation.

MR. BURDICK [N. Dak.]: My point is that it certainly strait jackets the judge if something has occurred within the 30-day period. As far as notice is concerned, the ordinary five days plus travel time protects the adverse party, as far as notice is concerned; but if the parties come in ten days afterwards and convince the Court — {98A}

MR. HELLRING [Newark, N. J.]: I don’t think the Committee has any very strong feelings about it. In our thinking so far, it seemed to us that, as Judge Miller pointed out, probably thirty days was the minimum that they could need for any sensible attempt at reconciliation, so we put in that minimum. But would you be willing to have the Committee consider it, or would you like to have a vote on it?

MR. BURDICK [N. Dak.]: I understood the Committee would not consider it. I would appreciate it if the Committee would consider eliminating it. If not, I wish to make a motion.

MR. CALLOW [Wisc.]: I think you should stick with your motion.

MR. BURDICK [N. Dak.]: My motion is to delete the minimum period, so that the Court would have flexibility from the time of the original hearing to the date when he has the subsequent hearing.

CHAIRMAN READ: You have heard the motion.

[The motion was put to a voice vote and was lost.]

CHAIRMAN READ: We will proceed with Section 306.

MR. GIBSON [Mo.]: I will now proceed with the reading of Section 306. I probably should announce before reading this that this part of the Act is not contained in your book, but there is a separate sheet on the table that contains the {99A} changes made by the Committee. This was passed out yesterday.

CHAIRMAN READ: Will you comment on Section 306?

MR. MILLER [La.]: Mr. Joiner is speaking with the Reporters {101A} about what may be an error — an unintentional error. As I read—

CHAIRMAN READ: If I could interrupt you, Commissioner, we are about to point out an error, I think.

MR. MILLER [La.]: Because as it now reads, it would take away any discretion of the Court in matters of custody, support, or visitation, provided only that the spouses had agreed; and that’s the very error—

MR. CALLOW [Wisc.]: We recognize the error.

MR. GIBSON: There is an error in the draft I just read as to the placement of the interlineation on line 11. That phrase "except terms providing for the custody, support and visitation of the children," should be inserted in line 9, after the word "agreement", so that (b) starting on line 8 would read:

In a proceeding for dissolution of the marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support and visitation of the children, are binding upon the court . . . . . and so forth.

CHAIRMAN READ: Will you remark on Section 306?

MR. McKUSICK [Portland, Maine]: Can I inquire what is meant in lines 10 and 11 by the words "shown by the separation agreement"? {102A}

Does that simply mean that the judge should consider as evidence the recitations in the separation agreement as to the circumstances of the parties?

MR. MERRILL [Okla.]: It is, I think, Commissioner, one of the items to be considered by the Court. There are other items as well.

MR. HELLRING [N. J.]: May I suggest to Commissioner McKusick that it isn’t so much a question of the recital but, you see, at the time when the Court is making that consideration — is considering it — it’s after the separation agreement has been entered into, and the question before the Court is whether it’s unconscionable, and so the Court has to consider the economic circumstances of the parties as a result of the terms of the separation agreement, and that’s what I think the Reporters were trying to describe in that language.

Now, maybe some better language could be used for it. None of us on the Committee, I’m afraid, picked it up as you have.

MR. McKUSICK [Maine]: Having accepted that explanation, then I’m troubled by whether the other evidence produced by the parties or requested by the Court simply relates to the economic circumstances of the parties, and couldn’t go to other relevant factors, such as duress by one party or the other, or {103A} misrepresentation or mistake as to the assets of the other party.

I would think it would be better to say, "after considering the economic circumstances of the parties and any other relevant evidence produced by the parties or ordered by the court to be produced".

MR. HELLRING [N. J.]: Would you be satisfied if the Committee were willing to give your suggested language consideration?

MR. McKUSICK [Maine]: Entirely so, yes.

MR. HELLRING [N. J.]: Some of the members of the Committee want to say you, Commissioner McKusick, that they like your language already.

PROFESSOR KAY: I want him to write it down.

MR. JENNER [Ill.]: I do not rise with respect to the Uniform Marriage and Divorce Act, but now that we have a very full attendance, first to compliment the Conference for the attendance this evening. It’s very heartening, and it is typical of the spirit that we have observed throughout this meeting. I would like to call to your attention several matters, the first of which is that Professor Levy must leave at noon tomorrow. He is committed to leave for Israel at noon {104A} tomorrow. The Committee has been pressing me very hard to keep the Conference working along on the Uniform Marriage and Divorce Act, which I have declined to do, so that we would have at least initial consideration of the Uniform Consumer Sales Practices Act.

That Committee is now at work — all twelve or thirteen of them, I think — in another room on this floor. We have encouraged them with this comment, that if the Uniform Consumer Sales Practices Act Committee is able this evening to produce a redraft, with the benefit of the comments and motions made during the afternoon, we will find some time for another session of that Committee on the calendar.

Now, in order to do that and also to undertake to consider all these other Acts that we have on this very busy and very heavy calendar, it is necessary that we do move, gentlemen, and we have given you a very, very generous amount of time to move along with the discussion tonight, so that we will have some chance of finishing this either this evening, or we give you one hour tomorrow morning.

CHAIRMAN READ: We thank you. And with that in mind, I will add, once again, you have all been very helpful to the Committee in submitting drafting and style comments in writing, and I hope you will continue to do so, and to try to avoid {105A} anything that will be a source of delay.

MR. PENCE [Laramie, Wyo.]: Mr. Chairman, I would like to raise a question about subsection (e) on page 14, because my experience at least has been that in so many of these divorce actions one of the parties has moved to another state. This is quite frequent, and as a result of that they are outside the jurisdiction of the Court, in so far as contempt proceedings or other enforcement of the decree is concerned; and if the contract is not performed, and things remain to be done by way of property settlement and otherwise, many times the only recourse that the other party has is to bring an action upon the contract.

If I interpret (e) correctly, you have done away with that remedy when you incorporate the contract into the decree, and I’m wondering if that is the wise thing to do.

PROFESSOR KAY: The thought of the Committee, Commissioner, was that for purposes of interstate divorces it would be possible to bring an action on the judgement in the other state, in so far as the payments due under the judgement are final and not retroactively modifiable, and this draft does provide that payments for maintenance will not be retroactively modifiable. They are final, and are entitled to full faith and credit under the decisions of the United States Supreme Court. {106A}

If it is future installments, then it is not final, and is not under the law of most states entitled to full faith and credit, but most states have followed the lead of Chief Justice Traynor and others in granting voluntary recognition, and it seemed to us that it was so important to avoid the dispute between whether the contract was enforced or the judgement was enforced that it was better as a matter of policy to provide that the judgement would supersede the contract.

MR. PENCE [Wyo.]: Well, I suppose that in most states that would be true, but in some states it’s not true, or hasn’t been in the past, and I’m not so much concerned about payment of money as I am with other property provisions in the contract that might not be enforced otherwise.

MR. TOWNSEND [Indianapolis, Ind.]: Could I ask a question here? Do you have a provision for a lien on property of either spouse, and the effect of that lien on property, and how it’s perfected, and so forth? I know at least in two states this is a very serious problem, and there should be some provision as to this lien, how it’s perfected when you have many creditors and problems that grow out of these divorce cases, and it seems to me you would need something here to take care of it, and I don’t see it.

CHAIRMAN READ: This Act does not contain any {107A} provisions of its own for liens. If there are such provisions in other law of the state, I take it they would apply.

MR. TOWNSEND [Ind.]: Many states have lien statutes that are parts of the divorce law. CHAIRMAN READ: Perhaps it will be necessary to draft the repealer clearly in such jurisdictions.

MR. TOWNSEND [Ind.]: It seems to me this is a very significant problem.

MR. BUERGER [Buffalo, N.Y.]: Mr. Chairman, will the Committee accept a suggestion in line 17, the insertion of a paren before Section and a paren after 309?

CHAIRMAN READ: I would request that anything of that sort be submitted to the Committee in writing. Shall we proceed with Section 307?

MR. GIBSON:

MR. DAVIS [Houston, Tex.]: Mr. Chairman, with reference to c), do you intend that income from the separate property, as we call it in our State, is marital property if the income is acquired during the marriage?

In other words, stocks that are owned prior to marriage — are the dividends from those stocks marital property during the marriage?

CHAIRMAN READ: I would take it that they are.

MR. DAVIS [Tex.]: Well, it certainly is not clear that c) intends to cover that.

CHAIRMAN READ: I believe the Committee will — I know the Committee will consider it. It sounds as though they will accept it. {110A}

MR. MILLER [La.]: Mr. Chairman, as I read this, this would eliminate the community property system following the separation or divorce. Under the community property system in the states that have it, or at least in my State, the wife, regardless of the necessities of proving an actual contribution, is an absolute owner provided one has any community property which is managed by the husband during marriage, but upon dissolution of the marriage, for whatever cause, her vested right in that one half is vested and does not require proof of what she may have done to deserve that one half.

Now, I don’t know that any other community property states — I would think the same rule applies in other community property states.

MR. HELLRING [N. J.]: Commissioner Miller — and particularly Commissioner Tom Davis — in response to your question about income, income during the marriage on property acquired prior to the marriage — I think that was your question, wasn’t it?

MR. DAVIS [Tex.]: Yes.

MR. HELLRING [N. J.]: A careful reading of this paragraph has made it clear to the Committee that by an inadvertent typographical omission there were some words left out of that Section which were intended to be in there, and which provide that property acquired prior to marriage and any increase in {111A} that property, including income, remain individual and not community property.

Does this answer your question?

MR. DAVIS [Tex.]: It does, but that’s exactly contrary to the law of my State. Some of the community property states do that, but some others do not.

MR. HELLRING [N. J.]: That was the way in which the Committee had intended it, in order to try to arrive at some uniformity, in order to make it possible for some of the states which do not have any community property at all to accept the statute and go along with it.

If you want further discussion here of the community property portion, it might be better for us to hear for a while from Herma Kay, the Co-Reporter, who has done a lot of work in this field; but I don’t want to get into it at length, myself, particularly since I come from a state which doesn’t have community property.

MR. KIDWELL [Honolulu, Hawaii]: I’m a member of a committee on a tax relating to community property transferred from community property states to noncommunity property states. In our consideration of that Act, it has been our assumption that it is the law of most jurisdictions that in allocating property in divorce the court takes into consideration all property {112A} held by either spouse, whether that property is held in straight tenancy, tenancy by the entirety, joint tenancy, or as community property; and where the divorce is in the non-community property states, at least in Hawaii, if the spouses have brought with them community property, the Court takes into consideration that community property in allocating the property between spouses.

Therefore, I believe that subsection c) should refer also to community property, when referring to property held individually or by the spouses in some form of co-ownership, and I suggest that the Committee consider the addition of community property as an additional form of ownership to the three that are mentioned.

MR. HELLRING [N. J.]: We will certainly give consideration to your suggestion. I might point out to you that, of course, the Section contemplates that, while there is a differentiation between what we call marital property here and property individually held, that the court in making its determination as to the distribution and division of the property will take into consideration all of the property that exists, whether individually owned or whether it’s marital property, just as you suggest.

MR. KIDWELL [Hawaii]: I believe confusion could arise unless {113A} community property is referred to here.

PROFESSOR KAY: In California, which is a community property state, before we enacted our new Family Law Act, which we did in 1969, even though it was recognized that the wife acquired a vested interest — a vested one-half interest — in the community property during the time of the marriage, at the time of divorce the Court was permitted to divide the marital property — the community property — in such proportion as the Court deemed just in respect to the circumstances of the parties; and the old law, in fact, differed according to the grounds of divorce, and the Court was ordered to divide the property unequally if the divorce was based on insanity, for instance, or adultery.

We thought, in making this grant, that it would be too much of a change to try to state in the old common law property states, who had not considered before the concept of dividing what they would view as the husband’s property on divorce at all — to say to them: You have to give half of this property to the wife at the time of divorce. And that’s why we went to this softer standard of "in such proportions as the court deems just".

Now, it seems to me that in the community property states — and we intended to put this in a comment — that the {114A} community property states may wish to, instead of saying "in such proportions as the court deems just", say that the court shall divide the marital property equally, or use some other language more in line with the traditional concepts of community property; but we did think that would be too much of a change to ask of the common law states.

MR. NEEDHAM [R. I.]: Mr. Chairman, I have a couple of questions. In reading this, we are talking about the jurisdiction of a court where there is only jurisdiction as it relates to a right to dissolve, or divorce.

Now, I assume that this Section means where there is no personal jurisdiction over one of the parties; namely, what we should traditionally call in the common law states no personal jurisdiction over the respondent who is brought into court.

Now, I don’t think that there is very much difficulty in dividing anybody’s property if the respondent submits to the jurisdiction of the Court, but if I read this Section correctly, we’re talking about a Court which had jurisdiction only to dissolve the marriage, and then we go on to say that the property shall be divided, and we go into various formulas, and we talk about marital property, and we talk about regardless of how the property is held. {115A}

Now, I frankly find it difficult to believe, No. 1, that a court by acquiring jurisdiction to divorce can affect property in the absence of personal jurisdiction outside the state, and, No. 2, if they don’t have personal jurisdiction and the respondent owns property within the state, I suggest that there may be some constitutional prohibitions about any division of that property, and I cite the old constitutional case of Pennoyer v. Neff. If I am wrong, I would like to be informed.

PROFESSOR KAY: The mention, Commissioner Needham, in the original section (a) of 307 is that you have had a prior divorce proceeding, usually in another state, that has been an ex parte proceeding; for example, the Neff divorce, where only one spouse appears, and the other spouse is not before the Court.

Now, under standards of the Supreme Court due process law, the Neff Court lacks jurisdiction in a case like that to do anything except dissolve the marriage, so that leaves the property and support and maintenance rights to be decided in another proceeding where there is personal jurisdiction over both parties, and in subsection (a) of Section 307 we are saying that this is now that second proceeding, where there is a proceeding for maintenance following dissolution of {116A} the marriage by a court which had jurisdiction only to dissolve the marriage. That is not the Court that was the former Court. In this proceeding we have jurisdiction over both parties.

MR. HELLRING [N. J.]: If I may say so, what Professor Kay is saying is that you are quite correct, Commissioner Needham. Section 301 said that in a proceeding for dissolution of the marriage the Court will act on this subject of distribution of property — and I’m reading from line 8 on page 9 under "Dissolution", Part III, Section 301, where it says "to the extent it has jurisdiction to do so", so that we did recognize your point in the draft, and that’s the way we intended it.

MR. JOINER [Detroit, Mich.]: Mr. Chairman, don’t you have to, then, if you are going to follow up this theory, change the first clause of Section 307 (a)? Don’t you have to say in the first clause, "in an action for disposition of property following dissolution of marriage by a court which had jurisdiction only to dissolve the marriage, the court shall set apart"? Isn’t that exactly what you are saying?

PROFESSOR KAY: In the maintenance section we had called it a proceeding for maintenance. I would have no objection to calling it a proceeding for disposition, with the understanding that you could then join a proceeding {117A} for disposition of property with a—

MR. JOINER [Mich.]: But it is not accurate the way it is now. It is not in this state an action for dissolution of the marriage — in this state.

PROFESSOR KAY: No. No, it is not. There are three things: dissolution of marriage — that’s the first; legal separation is the second; and the proceedings for maintenance of property is different, as you suggested, but that’s not a proceeding for dissolution.

MR. HELLRING [N. J.]: But we will consider your suggestion, certainly.

MR. MILLER [La.]: How can there be two?

CHAIRMAN READ: Commissioner, I think what is being said here is that the Court which has jurisdiction only to dissolve the marriage modifies only the action for maintenance. In other words, an action for dissolution, an action for legal separation, or an action for maintenance following dissolution, and so on, by a court which has jurisdiction only to dissolve the marriage; do you see what I mean? The modifier is only on the third of the three actions.

MR. JOINER [Mich.]: Better change the order of it, then, and put it up in front.

CHAIRMAN READ: I think if it’s not clear that the {118A} Committee has the issue well in mind.

MR. HELLRING [N. J.]: Yes, and the Reporters and the Committee will work out the language.

MR. JESTRAB [Williston, N. Dak.]: I’m just not sure that I understand what the problem is. As I understand it — and I undertook to enforce the judgement in Rozann v. Rozann (?) in two other states, so I’m familiar with this question, and I don’t see why you need to deal with that problem in this Act. All you need to do here — and I think you have done it — is to provide for divorce, or dissolution — whatever you want to call it; that’s the old-style term — make the order, and then it’s a judgement. It’s entitled to full faith and credit, and you don’t need a lot of fancy language in this statute to enforce it.

I don’t know what the problem is. Either I’m behind or somebody is ahead, or something. I don’t get it.

PROFESSOR KAY: This is not the Rozann situation. In Rozann the California Court had personal jurisdiction over both parties. Here we’re assuming the typical Neff divorce, where there is not personal jurisdiction over both parties.

MR. JESTRAB [N. Dak.]: Well, of course, if there isn’t personal jurisdiction over both parties, or jurisdiction of the status, your divorce isn’t any good.

PROFESSOR KAY: No, no. The Court, under the {119A} Supreme Court decision, may dissolve the marriage.

MR. JESTRAB [N. Dak.]: If they have jurisdiction of the status.

PROFESSOR KAY: This action presupposes there has been termination of status, and nothing more, and we are now bringing a separate proceeding not to terminate the status, because that has already been terminated, but to take care of maintenance, support, and disposition of property.

MR. JESTRAB [N. Dak.]: And that would be brought in the state where you could get jurisdiction and where the property lies, is that correct?

PROFESSOR KAY: That’s correct.

MR. JOINER [Mich.]: I would just like to inquire, if I may, of Professor Kay: have we covered the situation where part of the property is in the state where the marriage dissolution is taking place, and there has to be an action in another state to take care of the rest of the property?

PROFESSOR KAY: We haven’t provided for that expressly. In so far as there was in rem jurisdiction in the first state, we take care of it in the first state, but we have not referred to what Mr. Jestrab referred to as the Rozann situation.

MR. KULP [Camden, N. J.]: Mr. Chairman, I have a hard time {120A} accommodating myself to subsection (b), where it says: "For purposes of this Act only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except". I have no problem with property acquired by gift, bequest, devise or descent, but the thing I wonder is: why, when a man or woman brings property to the marriage, couldn’t it be considered marital property?

You have in another section — Section (4), which is on line 23 — "property excluded by valid agreement of the parties." But it would seem to me that where the parties go into a marriage, that should be legally submitted to the marriage, unless they expressly agree otherwise.

PROFESSOR LEVY: I think it might be possible for me to answer that, Commissioner Kulp.

I think that there has been a lot of talk earlier this evening — and this morning — about legislative acceptability. I think if the Conference promulgates Section 307 and the common law property states accept it, we have done one whale of a year’s work, and I don’t think that we are going to be able to get too many state legislatures to go beyond what we have done here. I think this is a marvelous advance in the law of most states.

MR. HELLRING [N. J.]: Commissioner, if I may rise one {121A} moment to a point of pride, it is that the New Jersey Commissioners — a State which doesn’t have any community property — are pressing hard for broadening it, which is an indication of the fact that at least as to this aspect of the statute we look forward to some uniformity in bringing the statute into New Jersey.

MR. HOROWITZ [Seattle, Wash.]: There are, of course, eight states in the Union that have the community property system. I don’t pretend to know what the divorce law is on the disposition of property, but we do have the problem occasionally — and importantly — of separate property on the part of the husband and nothing on the part of the wife — no community property, no separate property.

Under the language of this Section, if all the separate property were awarded to the husband, there would be nothing for the wife, because there is no marital property, so the rule has been adopted in our State by decision that all property of the parties, separate and community, is subject to disposition by the Court, and that works out fairly well.

Is it the intention of the draftsmen here to adopt the view that if there is separate property owned by one spouse, and no marital property whatsoever — is all that separate property awarded to the spouse only? {122A}

PROFESSOR KAY: That would mean that on the award of maintenance the Court would have to take into account that there would be no property disposition to make up for it.

MR. HOROWITZ [Wash.]: Your remedy as to (e) would be a serious change in the law of my State.

PROFESSOR KAY: It would be normal practice under the California system, because we do not, and never have permitted division of separate property of either spouse.

MR. LEFLAR [Fayetteville, Ark.]: I venture to suggest that it would be a substantial change not only in community states, but also what’s done in common law states. After all, if the man has a million dollars and marries a good-looking girl, she is entitled to a part of that million dollars when he gets the divorce, even though it’s premarital property, and she gets it.

CHAIRMAN READ: I don’t think that marriage can be irretrievably broken. [Laughter]

MR. ABRAMS [Newark. N.J.]: Mr. Chairman, I’m not sure I appreciate the real impact of this Section. If a lady runs away with her next-door neighbor and goes to a state that happens to have this initial Act, and she is able to persuade the Court that the marriage is irretrievably broken, so that a decree is granted to her, then she can come back, regardless of what her status is with her paramour, or if she remarries, and cut up {123A} her husband’s property. Is that the idea?

CHAIRMAN READ: I take it she can cut up the marital property, as defined in the Act, and she can take her separate property regardless of fault, and that division also, Commissioner Abrams, is just and proper as determined by the Court.

MR. JESTRAB [N. Dak.]: I don’t want to labor this, and I know the hour is late and you are anxious to get on, but I’m still puzzled by this business that the Court — I only know of one place where the Court will grant a divorce upon the grounds that the state or territory has jurisdiction of the status, and I think that’s in a Southern state, or it’s the Virgin Islands, or some place. [Laughter]

In other places you have to serve people with process, and you serve people with process by mail, or whatever, substituted or other sort of service that you have; but when you do that, you have jurisdiction of the person.

Now, you can’t enter a personal judgement against them, but I believe that you can decree in the judgement that is entered the division of the property, and that you can—

[Calls of "No! No!"]

MR. JESTRAB [N. Dak.]: Now, wait just a minute — and that you can enter a decree dividing up this property, and that you can take this decree elsewhere and sue on it. {124A}

Now, maybe I’m wrong about that, and some of these experts can tell me. I have tried it two or three times; but I’d be interested to hear what they think about it.

PROFESSOR KAY: Well, as I read the Supreme Court’s due process opinion, it is that in such typical cases as the Nevada Court practice, where the Court has jurisdiction over one party based on residence and testimony at the domicile, and has served the other party by publication outside of Nevada, so that there is no personal service within the state and there is no long-arm statute that’s applicable, then Nevada lacks personal jurisdiction over the other party and has only jurisdiction over the marital status, which is furnished by domicile, and can do nothing more than decree the dissolution of the marriage. It cannot affect property rights or support rights, and, indeed, depending on the way you read Malik v. Anderson, it’s even doubtful that they can affect the custody of children, although I don’t feel very strongly about that.

However, that question aside, it’s perfectly clear that Nevada can not affect property rights if it lacks personal jurisdiction over the other party.

MR. JOINER [Mich.]: Mr. Chairman, I’m sorry. I just don’t want to leave something uncovered here that’s going to be important, and I want to come back to the one I asked about {125A} earlier, in which the Court did have power to dissolve the marriage and did have power to divide certain property, but it’s only a small portion of the property, so therefore when you come in the second stage for your maintenance action, I look to the maintenance section, and I don’t find anything there that gives him the power to divide that property. If you can foreclose that some way by the draft, I think it is a drafting problem, not a substantive problem.

PROFESSOR KAY: Do you think it would take care of it if we asked the Courts to take into account the property decision, if any, made by another Court?

MR. JOINER [Mich.]: It has to do with the language "maintenance following dissolution of the marriage by a court which had jurisdiction only to dissolve the marriage". What you really mean is by a court which did not have jurisdiction to grant an award of this property.

PROFESSOR KAY: Well, the language I originally used is ex parte divorce, which is technically correct, and the Committee didn’t want to use that, so we used this language, which spells out what an ex parte divorce is, and we can take under consideration, if you like, some other language.

MR. VESTAL [Iowa City, Iowa]: Can’t you say "a court that did not have jurisdiction over the person of the defendant"? {126A}

PROFESSOR KAY: You can say that.

CHAIRMAN READ: All right, the Committee will consider that.

Can we continue, then, with Section 308?

MR. GIBSON:

CHAIRMAN READ: Will you comment?

MR. BUERGER [N.Y.]: Mr. Chairman, the opening clause of Section 309 should follow the same formula that you finally agreed on for the opening clause of Section 308. {128A}

CHAIRMAN READ: I believe the Committee noted that the same problem exists in both sections.

We will proceed with 309.

MR. GIBSON:

CHAIRMAN READ: Will you comment?

[No one responded.]

CHAIRMAN READ: If not, we will continue with 310.

MR. GIBSON:

CHAIRMAN READ: Will you remark?

MR. NEEDHAM [R. I.]: This is perhaps a rhetorical question, but I still hold to the fact that when a marriage is determined to be irreconcilably broken, that the interest of the child being protected that this section says he has a right to have protected may very well import that the child, through its attorney, may have a right even over the agreement of the parties that the marriage is irreconcilably broken.

MR. HELLRING [N. J.]: Well, as the section is now drafted, Commissioner Needham — and I think I’m repeating what I said earlier today in response to the comment which was made by Commissioner Ring, and which I see he is about to repeat now [Laughter] — when he rose earlier today, I commented that {130A} Section 310 as it is now written limits the power of the Court to the appointment of an attorney to represent the interests of the minor or dependant child to questions of custody and support, and those questions only, and that if this is to be broadened, as some members of the Committee and some other Commissioners feel it should be, that the Committee of the Whole will have to broaden it; but as it reads now it’s limited to custody and support.

MR. RING [Wash., D.C.]: You guessed my reason for rising. It seems to me that, having put in "may", this is a permissive act of the judge in connection with custody and support, and that by implication you are denying the judge the authority to see to it that the child has representation in other circumstances where the judge may feel it appropriate for the child to have representation. I don’t think you ought to limit the judge’s discretion.

In most instances probably the child needs no representation, and since the "may" is in the proviso already, there is no requirement that the judge appoint representation, and under these circumstances I think that it should be extended to permit the judge in his discretion to provide counsel for the child not only in connection with custody and with support, but also with the dissolution of the marriage and on {131A} the matters relating to the family relationship under this Act.

I would like to move that it is the consensus of this group that the authority of the Court should extend to appointing counsel in every matter that may arise.

MR. HELLRING [N. J.]: You are not suggesting in your motion that the word "may" be changed to "must"? You are leaving it discretionary?

MR. RING [Wash., D.C.]: Very much so! I think it should be discretionary.

MR. DUNHAM [Chicago, Ill.]: Mr. Chairman, it seems to me that to add representation of the child to the proceeding for dissolution of the marriage puts us right back to all of the things that we have been arguing about at an earlier point, and, most importantly, it would seem to me the idea that the child should keep the family together when the family is in fact irreconcilably broken down — the marriage is — is just an impossibility, and I don’t see how the child or the attorney has anything to say on that issue, if it is in fact broken down, or if the parties — the husband and wife — agree that it is broken down.

CHAIRMAN READ: Will you remark further?

PROFESSOR LEVY: I can report to you that, while the studies are fairly recent and there aren’t a great many of {132A} them, what studies there are which have followed up children of divorce suggest that children of divorced parents make out better on every relevant criterion — how well they do in school, how well they do after school, et cetera — than do the children of undivorced parents who label their parents’ marriages as unhappy.

MR. PIRSIG [Minneapolis, Minn.]: Mr. Chairman, I’d like to suggest to the Committee that the functions that are contemplated here for the attorney are normally the functions of a guardian ad litem, and there are cases that suggest that, rather than an attorney performing these functions, there should be a guardian ad litem appointed.

MR. HELLRING [N. J.]: The Committee did consider this at great length, and decided not to include any provision for a guardian ad litem, but to try this attorney representation method, for a number of reasons.

Among those reasons was the desire not to include in the Act an opportunity for the kind of political appointments that we were told are made available in situations of this kind in some areas of the country. There was also a feeling that it would be more appropriate for simple representation by an attorney, and that it would speed up the proceeding, whereas a guardian ad litem situation would slow it up. {133A}

MR. CALLOW [Wisc.]: And the third point is that there are some jurisdictions in which it is deemed improper for the counsel to serve as both guardian ad litem and counsel, and I think that is a problem that we considered.

MR. PIRSIG [Minn.]: That was my very point, that while you designate him as an attorney, nevertheless you are conferring functions upon him as an attorney and as a guardian ad litem, and there are cases which indicate that the proper function of an attorney in a case of this kind is to advise someone else as to the respective legal consequences of this or that action, and it is for the guardian ad litem to make a decision in the light of that legal advice.

MR. CUNNINGHAM [Md.]: I’m worried about the thrust of the last sentence, where your responsible party is indigent, because an attorney to advise as to the child’s rights of support is not going to get blood out of a stone. In other words, what he can accomplish as the attorney for the child to work out support is minimal.

What bothers me is the thought that in certain areas this may be an automatic attorney’s fee out of public funds that is not justified. I don’t know what the answer to it is, but I am concerned that it can get out of hand.

CHAIRMAN READ: I believe the Supreme Court thinks {134A} it’s not justified.

The motion, then, is for the sense of the meeting as to the proposition that the Court may appoint an attorney to represent the interests of a minor or dependant child, not only with respect to custody and support, but with respect to other matters, including, particularly, the breakdown of the marriage.

[The motion was put to a vote and was lost.]

CHAIRMAN READ: May we continue with 311?

MR. GIBSON:

CHAIRMAN READ: Will you comment?

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I would like to make a comment with respect to the contempt proceedings that are contemplated.

It is held in some jurisdictions that a person cannot be confined for failure to obey an order which provides for the payment of money only, and in some jurisdictions this has been {136A} held to be applicable to orders providing for temporary maintenance, so that the statutes regarding temporary maintenance expressly provide that in contempt proceedings punishment for failure to obey can include confinement.

Now, is it the Committee’s intent that confinement shall be one of the penalties for failure to obey under this Act? And if so, should there be some express provision in there?

MR. MERRILL [Okla.]: The Committee’s thought there, I think, Commissioner Gardner, was that we would relate this to the other procedures available in that particular state. In other words, since the processes of civil contempt do vary from state to state, we wouldn’t try to break in on that with a uniform rule. We would relate it to the rules of that particular state with respect to the extent of the process for civil contempt.

MR. VON HERZEN [Calif.]: Mr. Chairman, may I beg your indulgence and go back to 309, just to have a matter considered by the Committee?

In 309, on line 3, the words are used, starting with line 2, "the court may order a parent owing a duty of support to a child of the marriage, whether born or unborn", and "whether born or unborn" seemed to me to be surplusage, because {137A} the Court could have that right in any event, and this may cause considerable problems for us in relation to other Acts.

As you probably know, there is considerable dispute as to when a child in the womb is a human being, and with relation to our Uniform Abortion Act the use of the words "child . . . whether born or unborn" could create problems, and I would like to have the Committee consider the possibility of whether those three or four words are really necessary.

CHAIRMAN READ: I’m sure the Committee will do so.

MR. McKUSICK [Maine]: I have another difficulty with those same words. One might infer from that that a child adopted by the couple during marriage was not included in the phrase "a child of the marriage", where it says "whether born or unborn".

CHAIRMAN READ: I’m sure the Committee will consider that also.

MR. HELLRING [N. J.]: The Committee is delighted to accede to the suggestion of Commissioners Von Herzen and McKusick, and those words will be dropped.

CHAIRMAN READ: We will proceed, then, with 312.

MR. GIBSON:

CHAIRMAN READ: Will you comment on 312?

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I take it from lines 9, 10, and 11 on page 18 that the Committee had some concern over the possible severe consequences that might result to an employee whose only means were either a wage or salary, especially in light of the fact that no particular showing has to be made before the assignment is ordered. I wondered if the Committee gave any consideration to the impact this might have on hiring practices, and might operate to reduce the potential for employment as well as result in termination of employment.

MR. MERRILL [Okla.]: I shall have to say, Commissioner Gardner, that that particular point was not raised in the Committee discussion. I do not know whether we have anything like available statistics to indicate that there would be an {139A} impact there. Your suggestion, I take it, is that the employers would immediately refuse, or at least give a lower status to those prospective employees who were married and had children.

It seems to me that, just ex cathedra and without, as I say, any opportunity to consult statistics — which I doubt exist — it would be impossible for an employer effectively to recruit a labor force without having considerable bodies of employees married and with children.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I had particularly in mind that many employers, before hiring, examine the record to see if there are any judgements existing. It may well be that many employers might examine the records to see if there have been any wage assignments as to a particular applicant, and might equate that with the existence of a judgement, and let that influence them in so far as hiring an employee.

CHAIRMAN READ: Thank you.

MR. SULLIVAN [Id.]: Mr. Chairman, I’m a little concerned about that. It seems to me there is some confusion. In the first sentence it says that the court may order the person to make an assignment of part of his earnings. Then we come over, and it says the employer shall withhold from the earnings payable to the employee the amount specified in the {140A} order.

Now, the first sentence requires two acts: one, an order; the second is an assignment to be made, say, by the father. If that is true, it should provide in the third sentence "shall withhold the amount specified in the assignment"; or, I think, it would be more proper, really, if it could be done, just to have the one act — in other words, the order directing the payment out of earnings, rather than the two acts, because if we are going to have two acts, then I take it that the third sentence should refer to the assignment and not to the order.

CHAIRMAN READ: Thank you.

MR. TOWNSEND [Ind.]: This also is in conflict with those states that have adopted the Federal Rules to the effect that an order where you can order a person to do something — you can order the act to be done, or the order "so be it." And this is a very clumsy way, I think, to approach it.

CHAIRMAN READ: Thank you. I think this is more a drafting point than a point of substance, and I’m sure the Committee will take care of it.

MR. TOWNSEND [Ind.]: At this point I would like to suggest, too, if you want to make these decrees enforceable, particularly those that are not final — and these may or may not be final — {141A} and also on disposition of property and on attorney’s fees, that you include some provision here for a lien on the property. This is the most effective way that you can bring about a collection, and right here is the point at which you can put in a provision for an order directing a lien on real or personal property and ordering it to be perfected, and it’s a very simple provision. I don’t want to do the drafting, but certainly I think something should be done here, particularly for attorney’s fees. [Laughter]

MR. GIBSON: In most states, Commissioner, a judgement is a lien, and in those states where it’s not a lien, they, of course, could provide for it to be a lien; but I think that in a substantial number of states any judgement—

MR. TOWNSEND [Ind.]: If it is a final judgement, it is, or it may be; but if you are talking about something here that is subject to revision — is it not? — in many states it’s not a lien.

MR. GIBSON: Well, a decree of maintenance, or even a temporary decree of maintenance, at least in Missouri, provides a lien, or a decree for attorney’s fees constitutes a lien. I think that’s a matter of detail.

MR. TOWNSEND [Ind.]: Do not most divorce statutes include this? This isn’t in your lien statutes? {142A}

PROFESSOR LEVY: Commissioner, if you will look at my original monograph, you will note in there a recommendation for the Conference to concern itself with conforming the lien law and also the law of criminal contempt. The Committee persuaded me that we could do without it in here, because it was a hornets’ nest that might take us five or ten years to correct, while we were trying to correct all of the other things that we are correcting here.

I personally, not through laziness but tiredness, urge you not to insist that we take up those matters here also.

CHAIRMAN READ: We will continue with 313.

MR. GIBSON:

MR. NEEDHAM [R.I.]: Mr. Chairman, is it the intent of the Committee that the attorney’s fee be permitted to be ordered {143A} regardless of whether or not the party with the attorney’s fee be of sufficient means to pay? And is it the opinion of the Committee that the party having sufficient means should pay a reasonable attorney’s fee?

MR. MERRILL [Okla.]: The Committee thought from that, Commissioner Needham, that, based on practice generally, the term "reasonable attorney’s fees" does include the proposition that those fees are necessary for the purpose of enabling the party to maintaining the proceeding, and that similarly the term "reasonable" gives the discretion with respect to the ability of the respondent, if you wish to use that term, to pay the fee.

MR. NEEDHAM [R.I.]: I’m going to just say that it’s my understanding of the general practice in divorce law that the criterion is that the party asking for fees not have sufficient means, and that the other party has sufficient means to pay a reasonable attorney’s fee.

There was a case in Rhode Island I am familiar with, and I’m familiar with the same type of decision in at least three other states where that is the criterion, and while I like to see attorneys get paid, I don’t like to see the Conference just say: Well, if it’s a reasonable attorney’s fee on a court order, it’s got to be paid. {144A}

CHAIRMAN READ: Section 314.

MR. GIBSON:

MR. BURDICK [N. Dak.]: I really don’t see the need for recording the fact of separation in the other state. Perhaps this may be desirable in the state where the court and the place of marriage are the same, but I really don’t see where this would serve any purpose, to record separation in another state.

I think the objective is to simply wipe out the marriage which occurred in the other state if there has been a divorce, but I don’t see where this pertains to separation.

MR. McKUSICK [Maine]: In line 6 I wonder if that phrase "so that the parties may remarry pending appeal" isn’t stating the