"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