The Divorce Law Debates

NCCUSL

Uniform Marriage and Divorce Act

[Note: The home-state of each Commissioner has been inserted into the original record.
Page numbers from the original source material are designated within { } brackets
and should be used, along with the year of the meeting, when citing material from this record.
For those who would like to verify the accuracy of this material, the NCCUSL Handbooks
as well as microfiche copies of the transcripts, can be found at most law libraries.]

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Proceedings in Committee of the Whole

Report of The Special Committee on

Uniform Divorce and Marriage Laws of the

Conference of Commissioners on Uniform Law

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.

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

of the Conference of Commissioners on Uniform Laws:

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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

1966 Handbook of the National Conference of Commissioners on

Uniform State Laws and Proceedings of the Annual Conference Meeting

(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:

(a) It’s midyear report to its section chairman (for transmittal to the vice-president of the Conference and through him to the Executive Committee of the Conference);

(b) A much more lengthy and detailed midyear report of the committee to the executive director of the Conference (with copies to its section chairman and to the president of the Conference, the vice-president and the chairman of the Executive Committee); and

(c) The committee submitted its request to its section chairman for approval of funds to cover the expense of a proposed meeting, in Chicago, of the entire committee with the president and vice-president and chairman of the Executive Committee of the Conference as well as the section chairman (for appropriate transmittal to the chairman of the Executive Committee).

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 whole idea of the guilty party, and the innocent party should be got rid of. The real issue in every divorce case is, in fact, the state of the marriage relationship. The offence is only a symptom or excuse or a means of bringing the marriage before the Divorce Court.”

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:

“. . . our own shortcomings are pointed up in our failure to publicize our organization, its qualifications and accomplishments in order to create a broader and more favorable public image, as well as our failure to establish effective organizations within the various jurisdictions for the promulgation of our acts.

“The reference to lack of organization is not intended as a criticism of the Commissioners. Obviously, we cannot afford the uncompensated time required to be available at the beck and call of legislative committees and present an erudite explanation of every bill embodying a uniform act. The fact is, we need help — and the question is — where do we get it?”

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

Co-Chairmen

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

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From the

1968 Handbook of the National Conference of Commissioners on

Uniform State Laws and Proceedings of the Annual Conference Meeting

Minutes of the Midyear Meeting of Executive Committee Held

February 17 – 18, 1968, Chicago, Illinois.

At this meeting, the Vice President submitted reports on the activities of the various Sections since the 1967 annual meeting, including the following report on the activities of Section F, which included the UMDA project :

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)

On February 18th, after the UMDA committee had met, the following minutes were presented:

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)

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Law

Thursday Afternoon, August 7, 1969

Dallas, Texas

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.

(1) Subject to Subsection 2 of this section, the [ __________ ] Court shall enter a decree of dissolution of an [otherwise valid] marriage when it finds that

a) the marriage is irretrievably broken; and

b) provision for custody of any children of the marriage has been made under Part 3; and

c) provision for support of any children of the marriage and maintenance of the spouse has been made under Part 4; and

d) one of the parties has been resident of this state for six months and of the [county] [judicial district] for 60 days immediately prior to the filing of the petition or the entry of the decree.

(2) 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.

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}

Section 202 [Commencement of Proceeding; Marital Status Statement; Petition]

(1) The proceeding for dissolution of marriage shall be commenced by the filing of a statement of a marital status in the form prescribed by section 110 and of a petition styled “In re the marriage of _______________ and _________________, verified by the petitioner, and setting forth:

a) the residence of the parties; and

b) the fact of marriage; and

c) the names of any children of the marriage; and

d) the fact that the marriage is irretrievably broken; and

e) any arrangements as to the custody and support of the children and the maintenance of a spouse; and

f) the relief sought.

(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]

Where a petition is filed by one of the parties, the other party shall have 30 days from the date of service of the petition and process to file a response which he must verify.

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]

(1) When both of the parties, by petition or otherwise, have stated under oath that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court shall find the marriage to be irretrievably broken.

(2) When one of the parties has denied under oath that the marriage is irretrievably broken, the matter shall be heard no earlier than 90 days after service of the petition, and as soon thereafter as the matter can be heard.

Upon the hearing:

a) If there are no children of the marriage, the court shall find the marriage to be irretrievably broken if either of the parties so {48} states under oath at the hearing; or

b) If there are children of the marriage, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition of dissolution and the prospect of reconciliation, and may (i) find that the marriage is irretrievably broken, or (ii) dismiss the petition or (iii) may adjourn the matter for another hearing six months later and may suggest to the parties that they seek counseling. If the court adjourns the matter and one of the parties states under oath at the adjourned hearing that the marriage is irretrievably broken, the court shall so find. If the court denies the petition, a proceeding for dissolution may be commenced again six months after the date of denial.

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.]

* * * * * * * * *

Uniform Marriage and Divorce Law

Friday Morning, August 8, 1969

Dallas, Texas

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

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

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

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

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

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

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

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

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

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

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

but both parties agree to dissolution.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIRMAN MERRILL: That is right, sir.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Any other comments or questions?

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

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

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

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

SECTION 205 [Decree]

A decree of dissolution of marriage or of legal separation shall become final when entered, subject to the right of appeal. At the end of six months following the entry of a decree of legal separation, either party may move to convert the decree of legal separation to a decree of dissolution of marriage. The court shall enter {92} such a decree with any alteration in provisions regarding custody, support, maintenance and division of property as may be fair, just and equitable.

CHAIRMAN MERRILL: Is there comment? Discussion?

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

CHAIRMAN MERRILL: Thank you Commissioner Callow.

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

CHAIRMAN MERRILL: You are in order, Commissioner.

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

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

[No one responded.]

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

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

CHAIRMAN MERRILL: The chair will now recognize Commissioner Sullivan.

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

CHAIRMAN MERRILL: You have heard the motion.

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

* * * * * * * * *

Proceedings in the Committee of the Whole

Uniform Marriage and Divorce Act

Colony Motor Hotel, Clayton, Missouri

Saturday Morning, August 1, 1970

Mr. Harold E. Read of Connecticut presiding;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. GIBSON: We will start with Section 101:

SECTION 101. [Short Title..] This Act may be cited as the “Uniform Marriage and Divorce Act.”

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

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

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

CHAIRMAN READ: Thank you, Commissioner.

MR. GIBSON: [Reading]

SECTION 102. [Purposes; Rules of Construction.]

(a) This Act shall be liberally construed and applied to promote its underlying purposes.

(b) The underlying purposes of this Act are

(1) to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships;

(2) to provide more adequate procedures for the solemnization and registration of marriage;

(3) to promote the amicable settlement of disputes that have arisen between parties to a marriage;

(4) to mitigate the potential harm to the spouses and their children caused by the process of {16} legal dissolution of marriage; and

(5) to make the law of legal dissolution of marriage more effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

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

CHAIRMAN READ: I believe it is.

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

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

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

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

CHAIRMAN READ: We’ll accept a comment.

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

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

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

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

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

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

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

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

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

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

MR. GIBSON: We will proceed with the reading.

SECTION 103. [Uniformity of Interpretation.] This Act shall be so construed as to effectuate its general purpose to make uniform the law of those states that enact it.

Part II

Marriage

SECTION 201. [Formalities.] Marriages must be licensed, solemnized and registered or otherwise recognized as provided in this Act.

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

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

Will you comment on 201?

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

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

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

CHAIRMAN READ: We accept that.

MR. GIBSON: [Reading]

SECTION 202. [ Marriage License and Marriage Certificate.]

(a) [The Secretary of State, Commissioner of Public Health] shall prescribe the form for an application for a marriage license which shall include the following information: {21}

(1) name, address, date and place of birth of the parties to the proposed marriage;

(2) if either party has previously been married, the date and place of dissolution of the marriage;

(3) name and address of the applicants’ parents, guardian or legal custodian;

(4) whether the applicants are related to each other and, if so, the degree of the relationship;

(5) if the applicants are related to each other as aunt and nephew or uncle and niece, whether one of them is incapable of becoming a natural parent, and, if not, whether they have consulted a qualified genetic counselor.

(b) [The Secretary of State, Commissioner of Public Health] shall prescribe the forms for the marriage license, the marriage certificate and the consent to marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. GREEN [Mo.]: That’s right.

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

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

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

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

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

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

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

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

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

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

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

Can we go on to 203?

MR. GIBSON:

SECTION 203. [License to Marry.] The [marriage license] clerk shall issue a license to marry and a marriage certificate when:

(1) both parties to a prospective marriage have appeared before the clerk, unless excused by the [ ] court for good cause, have completed an application for a marriage licence have paid the marriage license fee of [$ ], and have furnished

(i) satisfactory proof that each party to the marriage will have attained the age of 18 at the time the marriage license becomes effective, or will have attained the age of 16 and has either the consent of both parents or guardian to the marriage, or has obtained judicial approval (Subsection (a) (i) of Section 205), or if under the age of 16, has judicial approval (Subsection (a) (2) of Section 205); and

(ii) satisfactory proof that the marriage is not prohibited (Subsections (a) (1) or (2) if Section 207) {27} or has obtained a court order for the issuance of a license (Subsection (6) of Section 205);

[and]

[(iii) a certificate of any medical examination required by the laws of this state;] [and]

[(iv) the Matrimonial Information Statement

(Section 501).]

(2) The clerk has furnished or is satisfied that each party to the prospective marriage has been furnished a statement in the form prescribed by [the appropriate state official] that sets forth

(i) the function and desirability of premarital counseling [ and setting forth the names, addresses and telephone numbers of local public and private agencies and individuals qualified to counsel persons planning to marry];

(ii) the importance of and how to obtain a premarital medical examination and premarital advice as to family planning; and

(iii) the importance of and how to obtain counseling as to the legal obligation of marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIRMAN READ: Thank you, Commissioner.

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

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

CHAIRMAN READ: Will you comment further on 203?

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

CHAIRMAN READ: The Committee will consider that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Chairman, do you have a report?

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

CHAIRMAN READ: You have heard the motion.

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

* * * * * * * * *

Uniform Marriage and Divorce Act

Saturday Afternoon, August 1, 1970

Mr. Harold E. Read of Connecticut presiding;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIRMAN READ: The Committee will consider that.

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

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

CHAIRMAN READ: Will you remark further on 203?

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

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

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

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

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

[The motion was put to a voice vote. ]

CHAIRMAN READ: The motion is lost. [Laughter]

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

All those in favor, please stand.

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

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

[The motion was put to a standing vote.]

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

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

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

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

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

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

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

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

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

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

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

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

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

[The motion was put to a voice vote.]

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

MR. GIBSON:

SECTION 204. [License; Effective Date.] A license to marry becomes effective throughout this state 10 days after the date of its issuance and expires 180 days after that date, unless the [ ] court orders that the license will be effective when issued.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. BRAUCHER [Mass.]: Yes.

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

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

MR. GIBSON:

SECTION 205. [Judicial Approval]

(a) Following notice to the parents, guardian or legal custodian, the [ ] court may order the clerk to issue a marriage license and a marriage certificate

(1) to a party aged 16 or 17,

(i) if the party has no parent, guardian or legal custodian, or has no parent capable of consenting to his married, or

(ii) if the party’s parent, guardian or legal custodian, has not consented to the prospective marriage but the marriage would serve the best interests of the party;

(2) to a party under the age of 16 if the party is capable of assuming the responsibilities of marriage and the marriage would serve his best interests.

(b) The [ ] court shall order the clerk to issue a marriage license and a marriage certificate to parties to marriages permitted by Subsection (a) (3) of Section {60} 207 upon the showing required by that Section.

(c) The [ ] court shall authorize performance of a marriage by proxy upon the showing required by Subsection (c) of Section 206.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIRMAN READ: Yes, sir.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. SCHWARTZ [Mass.]: Yes.

CHAIRMAN READ: We will continue with 206.

MR. GIBSON:

SECTION 206. [Solemnization.]

(a) Marriages may be solemnized by a judge of the [ ] court, a rabbi, a priest or a minister of any religious denomination, if he has attained the age of [21]. The person solemnizing the marriage shall complete the marriage certificate and forward it to the [marriage license] clerk.

(b) Members of a religious denomination having a special mode of solemnizing marriages may be married in accordance with the denomination’s established practice without participation of a person described in subsection (a). A party to the marriage shall complete the marriage certificate and forward it to the [marriage license] clerk.

(c) If a party to a marriage is unable to be present at the solemnization, he may authorize another to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present {71} and has consented to the marriage, he may solemnize the marriage by proxy. If he is not satisfied, the parties may seek a court order permitting the marriage to be solemnized by proxy.

(d) Upon receipt of the completed marriage certificate, [the marriage license] clerk shall register the marriage.

CHAIRMAN READ: Will you comment on 206?

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIRMAN READ: I think the Committee will consider that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May we continue, then, with 207?

MR. GIBSON:

SECTION 207. [Prohibited Marriages.]

(a) The following marriages are prohibited:

(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

(2) a marriage between an ancestor and a descendant or between a brother and a sister;

(3) a marriage between an uncle and a niece or between an aunt and a nephew, unless the parties have obtained a court order permitting them to marry upon a showing that

(i) one of them is incapable of becoming a natural parent, or

(ii) they have consulted a qualified genetic {81} counselor as to the risks of defective children their marriage entails.

(b) Children born of a prohibited marriage are legitimate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. JOINER [Mich.]: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. MILLER [La.]: Beyond the criminal aspect, it has {90} inheritance or succession implications. If, indeed, it is a valid marriage, the mere fact that it may be a violation of the criminal law would not necessarily affect those property rights.

CHAIRMAN READ: The motion, then, is to prohibit marriages between persons of the same sex.

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

CHAIRMAN READ: That motion is carried, and appropriate language will be drafted.

MR. WALSH [Minn.]: I’d like to refer to subsection (3). This genetic business, as Professor Levy mentioned — I don’t think it has much relevance to the question. Mr. Schwartz raised the relevant point. It’s an ethical problem, and we can only go one way or another on it, and I would move that the Conference delete all the language in line 8 beginning with “unless” and all the language in lines 9, 10, 11, and 12.

[The motion was seconded by Mr. McKusick.]

MR. LANGROCK [Vt.]: I’d like to speak against that motion, just from experience in the past year. I have a client home who wishes to marry his niece, approximately 70 and 50. They have been living together for many years, and would like to legitimize their relationship. They are not going to change their habits of living together, but they would feel a lot better {91} about it if it was permitted.

I think this is a picture that has repeated itself. Where there is no genetic problem, and we are talking about individuals who want to legitimize a relationship which already exists, it certainly doesn’t offend my morals.

MR. McKUSICK [Maine]: I wonder if Commissioner Walsh would accept an amendment of his motion to strike only lines 11 and 12. It seems to me that an added objection to this provision is the foolishness on the face of it of this rigmarole of merely having consulted a paraprofessional group — an ill-defined professional group — called qualified genetic counselors.

The counselor may tell them that they are going to have clearly defective children, but that doesn’t make any difference. I would suggest that that ought to be eliminated at the very least as a basis for getting a court order which is nondiscretionary on the part of the court, and I would assume that in the situation that the Commissioner from Vermont pointed out, possibly a court could be satisfied that there would be no offspring from this marriage.

CHAIRMAN READ: Commissioner, will you accept that amendatory motion?

MR. WALSH [Minn.]: No, I would not. I agree that paragraph (ii) doesn’t make much sense, but even with that deleted my {92} objection stands. This is an ethical question, a social question, and it’s a question that must be decided on the basis of our individual convictions.

CHAIRMAN READ: You are not obliged to accept the amendment.

MR. McKUSICK [Maine]: I will support this motion as a full-blown motion, but I would propose to present the motion, if it fails, in more limited form.

MR. MERRILL [Okla.]: Mr. Chairman, may I, before you vote, rehearse to you the practical situation out of which this provision arose?

It was called to our attention in the course of the debate and the consideration of this part of the Act that there is a situation in Rhode Island with a certain group of the Jewish persuasion whereby marriages of this type are legal and customary, and it was called to our attention that we should not write into the Act a uniform provision which would upset that situation.

MR. NEEDHAM [R.I.]: In one of my backgrounds I have had the privilege of being associated for most of my 20 years with members of Jewish persuasion in the practice of law. It is true that this provision does exist in the State of Rhode Island, and that marriages are permitted in the State of Rhode {93} Island within this degree of consanguinity. The number of those marriages, or the desirability when we consider them the broad scope in the ethical vein, I think, is before this Conference, particularly when the Conference is going to extend a provision which exists only in Rhode Island, and only in Rhode Island among people of Jewish persuasion. You are not limiting the application in the Uniform Act to people of Jewish persuasion. You are saying that any aunt and any nephew or any uncle and any niece, regardless of their persuasion may lawfully contract a marriage, as they now do in Rhode Island.

Clearly, gentlemen: We are the only state that has this provision, and I suggest most respectfully — I think, with consent of my Jewish associate present with me — is it wise to extend a provision which is in Rhode Island, and we’re the only one, and make it the uniform provision for the other 49 states? I personally don’t think it is.

MR. HELLMAN [R.I.]: If I may add just several words to Tom Needham’s statement, to the best of my knowledge — and I have been wracking my brain ever since he asked me ten minutes ago — there have only been two cases that I know of where anyone in Rhode Island has ever used that provision. As a matter of fact, one of the couples was not a Rhode Island couple. Brother Schwartz may remember the case, because they were from {94} Massachusetts, and they moved back into Massachusetts, were tried for, and convicted of, incest.

It hasn’t been a particularly viable provision, and frankly, I don’t think it has an awful lot to commend it, based on the Rhode Island experience. If the Commission does wish to adopt it, I’m afraid they are going to have to have broader policy grounds.

MR. CALLOW [Wisc.]: The Committee is for taking it out. I would say from the Committee’s point of view that we will probably support taking it out, because we have been enlightened by comments from the floor that were not generally known to us before, and at least this half of the table, I am satisfied, will support the motion.

MR. EASTAUGH [Alaska]: Rhode Island is not the only state with the problem. The natives of Alaska are a matriarchal society, and such marriages are accepted.

Also, the proposal of the Committee, as pointed out by my colleagues, does not distinguish between marriages between those relations and those by marriage in the uncle-niece and aunt-nephew category.

MR. LANGROCK [Vt.]: I don’t mean to talk too much, but I’m a little bit surprised at this tone of moral indignation at the prospect of the aunt-nephew and uncle-niece situation. {95} This is a recognized marriage in many, many countries in the world, and in the Western World, and why we have what I would consider such a very puritanical sense about it in the group — well, I’m surprised.

These people are free citizens of this country who wish to form a relationship and legitimize a situation, and if there is no genetic risk here, who are we to impose our archaic value system upon them and call it incest? If we are trying to prohibit a series of genetic mistakes, that’s all right; or are we trying to impose some moral code on people who may not subscribe to it?

I would like to move to amend the motion by striking out all of Section 3, and simply throw it open to uncles and nieces to marry.

CHAIRMAN READ: Hold your motion. I’m sure if the other amendment wasn’t acceptable, that’s not.

MR. LANGROCK [Vt.]: My motion is to amend the amendment. I don’t like the language of the genetic counselor, and all that. My question is —

CHAIRMAN READ: We are still on the motion first made, without amendment, and I think your motion requires separate action. I think we are about ready to vote, but before we do, I think we should be certain that the expression of the {96} Committee sentiment is clear, if there is going to be a vote; so if you will all hold on for just a moment, we’ll check this out.

[The Committee conferred.]

MR. HELLRING [N.J.]: The Committee has polled itself just now, and in view of the expressions here the Committee, with very little dissent, is prepared to support the motion. This provision was in here, as I told you, at the beginning, largely — well, not largely — entirely from the advice of the advisors, the committee of advisors we had, who told us there was no problem in this kind of a marriage; but in view of the ethical question that has been raised, the Committee, with very little dissent, is prepared to support this change in the section.

MR. VON HERZEN [Calif.]: What are we doing now?

CHAIRMAN READ: The motion is, in subsection (a) (ii) of Section 207, delete line 8 starting with the word “unless” and delete all of lines 9, 10, 11, 12.

MR. WALSH [Minn.]: I would comment that I would not, and I doubt if anyone else would object, to a provision for special and unique social groups continuing their special and unique marriage relationships; but for a general standard for the country, I would stand by the motion.

MR. MILLER [La.]: I’m confused on the motion. Does the {97} Committee favor the deletion of the entire subparagraph (3)?

MR. HELLRING [N.J.]: No, no!

CHAIRMAN READ: The motion which I understand the Committee to be in favor of is to delete, starting with the word “unless” in line 8, and running to the end of line 12.

MR. LANGROCK [Vt.]: That would interdict all marriages of uncles and nieces.

MR. NEEDHAM [R.I.]: If we have a particular problem in Rhode Island, we will take care of it, but we in Rhode Island support this amendment.

[The motion was put to a voice vote.]

CHAIRMAN READ: I’m in doubt, but the Committee has already given you an idea of what they want to do. Rather than take time to count, will you accept the Committee’s agreement to reconsider it? I think they might also consider the possibility of bracketing whatever is left when they get through. Will you accept that?

MR. McKUSICK [Maine]: I call for a division.

CHAIRMAN READ: A division has been called for.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion carries 47 to 28.

MR. VON HERZEN [Calif.]: Mr. Chairman, did I understand the Chairman to say that the Committee is considering bracketing {98} all of section 207?

MR. HELLRING [N.J.]: No.

MR. VON HERZEN [Calif.]: Well, then, let me make a suggestion on the remainder of Section 207.

It is entitled “Prohibited Marriages”, and the wording is that certain marriages are prohibited. I am unable to find anywhere a sanction for violation of the prohibition.

Now, if a law is drafted from the standpoint of the negative, such as we have here, where the negative is affirmatively expressed — this conduct is prohibited — normally you find a sanction for violation of that prohibition. There may be instances where this isn’t done, but I think ordinary legislative drafting requires such a sanction.

I would suggest to the Committee that, instead of having a prohibition such as you have in Section 207, you find an affirmative way of placing it in Section 203, or one of those early sections, wherein you permit marriage affirmatively between certain people, certain persons. If you wish, you might say that marriage is permitted between persons of the opposite sex, and so forth, rather than having a section here which prohibits a marriage and then has no sanctions.

MR. CALLOW [Wisc.]: We picked that up. That’s where we are going to put it, in 203. {99}

MR. SACHSE [Wisc.]: Was it your intention to include nieces and nephews by marriage as well as by blood?

MR. HELLRING [N.J.]: No, of course not. Absolutely not!

MR. SACHSE [Wisc.]: Well, is the daughter of your wife’s sister your niece, or isn’t she? Is she your niece? If she is, then you have prohibited —

MR. HELLRING [N.J.]: Well, we’re going to solve that. Now that we have made this change, we will have to deal with it, of course, in the drafting.

Incidentally, in connection with Commissioner Von Herzen’s questions, the view of the Committee was that the sanction, of course, was invalidity of the marriage.

MR. HILLMAN [R.I.]: I’d like to raise the consanguinity problem in another light: stepbrothers and stepsisters. These days we have more and more families living with his children, her children, and their children, and his children are not by blood in any way related to her children. I wonder if the Committee would consider permitting the marriage between stepbrother and sister.

CHAIRMAN READ: I take it it’s permitted, because it’s not prohibited.

MR. HILLMAN [R.I.]: Well, they are brother and sister for most purposes. {100}

CHAIRMAN READ: I don’t think so.

MR. JOINER [Mich.]: If it is the intention that marriages entered into under section (a) (1) are void or to be declared illegal, isn’t it quite proper that a marriage that is entered into prior to the dissolution of a prior marriage in which there [has] been a dissolution of the marriage — that it ought to be considered an appropriate marriage?

On November 1 two persons were married, but the marriage of one of them on an earlier occasion was not dissolved until December 1. Nothing happened. They lived in good faith, and go on now, and it seems to me quite appropriate that, the marriage having been dissolved —

MR. HELLRING [N.J.]: Are you suggesting that upon the effective date of the dissolution of the prior existing marriage, the nascent marriage should suddenly spring to life?

MR. JOINER [Mich.]: It seems to me that is appropriate.

MR. HELLRING [N.J.]: It is a concept we had not considered, and if you have some suggested language as to how to solve it , we’d like to hear about it.

You might take a look at the problems contained in Section 209 when we get to it. There is a section which was also the subject matter of a great deal of debate, the subject matter of a putative spouse, and that may solve the problem {101} which you raise.

MR. CALLOW [Wisc.]: I have talked to some of the members of the Committee, and I think we have an oversight which we would like to correct, and that is that, obviously, the half-brother — half-sister relationship, in the judgement of most of us, should be prohibited, and we will give due consideration to that and write it into the Act, although it is not prohibited at this time.

CHAIRMAN READ: May we continue, then, with Section 208?

MR. GIBSON: [After conferring] It has been suggested that I announce that this section is placed in here in lieu of — in substitution of — an annulment section, to give effect to an annulment, or what would usually be thought of as an annulment action, on a marriage.

SECTION 208. [Declaration of Invalidity.]

(a) The [ ] court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or {102} other incapacitating substances;

(2) a party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not at the time the marriage was solemnized know of the incapacity;

(3) a party was under the age of 16 and did not have judicial approval (Subsection (a) (2) of Section 205) or was between the ages of 16 and 18 and did not have parental consent or judicial approval (Subsection (a) (1) of Section 205); or

(4) the marriage is prohibited by Section 207.

(b) A declaration of invalidity may be sought by the following persons:

(1) for the reasons set forth in subsection (a) (1), by either party or by the legal representative or the party who lacked capacity to consent;

(2) for the reason set forth in subsection (a) (2), by the party able to consummate the marriage;

(3) for the reason set forth in subsection (a) (3), by the underaged party, his parent, guardian, or legal custodian;

(4) for the reason set forth in subsection (a) (4), by either party, or by the legal spouse in case {103} of bigamous marriages.

c) A petition for a declaration of invalidity for the reasons set forth in Sections (1), (3) and (4) of subsection (a) must be filed no later than 90 days after the petitioner obtained knowledge of the described condition. A petition for declaration of invalidity for the reasons set forth in section (2) of subsection (a) must be filed no later than one year after petitioner obtained knowledge of the described condition. In no event may a petition for a declaration of invalidity be filed after the death of either party to the marriage.

(d) It is a defense to a petition for a declaration of invalidity

(1) for the reasons set forth in subsection (a) (1) that the parties, with knowledge of the conditions stated in the petition continued to cohabit as husband and wife;

(2) for the reason set forth in subsection (a) (2), that the parties, with knowledge of the condition, continued to live together; or

(3) for the reason set forth in subsection (a) (3), that the parties, after each under-aged party has arrived at the age of 18, have cohabited as husband and wife. {104}

(e) Children born of a marriage declared invalid are legitimate.

(f) Unless the court finds, after a consideration of all relevant circumstances including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree not retroactive, it may declare the marriage invalid as of the date of the decree. The provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children on dissolution of marriage are applicable to non-retroactive decrees of invalidity.

CHAIRMAN READ: Will you comment?

MR. SULLIVAN [Id]: Mr. Chairman, just a correction, I think. On page 7 in line 12 it states “or was between the ages of 16 and 18”. If you recall, in the Section meeting yesterday we made the change that it would be only at age 17. Therefore, it should be revised to say only 16 and 17.

CHAIRMAN READ: The Committee accepts that.

MR. SULLIVAN [Id.]: I raise the question of an absolutely prohibited marriage, such as between a sister and a brother, or a descendant and an ancestor, or an uncle and a niece, et cetera. As I read this section that we are now considering, {105} if neither one of the parties of such a prohibited marriage questions the matter, no one else could.

MR. HELLRING [N.J.]: We just recognized that here. This is really a typographical error resulting from an oversight due to a change in the section made at yesterday’s meeting.

MR. SULLIVAN [Id.]: I don’t know who else should have the right to do it. I would think that the state itself should have the right, and perhaps collaterals, but it ought to be somebody other than the parties to the prohibited marriage.

MR. MILLER [La.]: In that same light, one of the grounds for challenging a marriage appears to be mental incapacity of one of the parties. It would seem that one of the defenses is continued cohabitation. I would assume that the lack of capacity could be raised on behalf of the other party, and I wonder whether continued cohabitation by one under this kind of a disability should be a defense to the petition.

MR. CALLOW [Wisc.]: We have already considered taking that out.

MR. WELLING [N.C.]: As I read the Act and this section, subsection (a) of 208 spells out the marriages that can be annulled or declared void, and you speak of the lack of capacity, and then you define it as mental incapacity or infirmity, et cetera. I see no provision where one of the parties to the {106} purported marriage is already under the disability of a prior marriage that has not been dissolved.

CHAIRMAN READ: I think that would come under subsection (4) of section (a).

MR. WELLING [N.C.]: That is telling about who has the right, the way I read it, to come under subsection (a) to have the marriage declared void.

PROFESSOR LEVY: (a) (4).

CHAIRMAN READ: Line 15 on page 7.

MR. CUNNINGHAM [Md.]: I’m not sure of the effect of c) and the death idea. Is this sort of a dead man’s statute concept there?

In other words, take this hypothetical. The young, wealthy man gets married to the gold digger, and five hours later is killed in an auto accident. You are preventing this marriage from being declared invalid, I think.

CHAIRMAN READ: I think that’s the intention, yes.

MR. CUNNINGHAM [Md.]: Do you like my hypothetical?

CHAIRMAN READ: I don’t think that your hypothetical is the one that the Committee would think best describes what they were driving at. I think they are trying to avoid a review of the validity of every marriage after death.

MR. WELLMAN [Mich.]: Is a court decree of invalidity necessary {107} in relation to a 207-prohibited marriage? You say it is.

CHAIRMAN READ: The Committee indicates yes.

MR. WELLMAN [Mich.]: Well, now, if you do not have a court decree, that means that the marriages you prohibit under 207 are considered marriages.

MR. HELLRING [N.J.]: No, but remember Commissioner Von Herzen’s question about sanctions. Here is an opportunity to give them the sanction, so that you have a clear-cut rule in it. It isn’t enough just to say it is prohibited. We felt there ought to be a provision that gives you the machinery.

MR. WELLMAN [Mich.]: But you have a statute of limitations on here. It must be filed no later than.

MR. HELLRING [N.J.]: When that question was raised earlier, one of us commented that that, unfortunately, was the result of a typographical error, resulting from a last-minute change, and I do not think the time limit was intended by the Committee to apply to that, and we have that under consideration.

MR. WELLMAN [Mich.]: You don’t mean the structure of the parties, nor the time limit, on marriages declared invalid for 207 reasons? And therefore you do not need a court decree on 207 marriages. It is invalid, and may be so declared at any point.

MR. HELLRING [N.J.]: Yes, that is certainly true, but {108} providing for a machinery for a declaration of invalidity will give many parties the kind of sanction that at least provides for a civil sanction, and clarity of title, so to speak.

MR. WELLMAN [Mich.]: I think if you delete line 15 of the section we are working on—

MR. HELLRING [N.J.]: We will certainly take your suggestion into consideration as we review the drafting of this section.

MR. JOINER [Mich.]: Mr. Chairman, I want to follow up on this a little bit and tie it down to a specific set of facts.

Suppose a brother and sister marry. They get married whether it’s legal or not. It says it’s prohibited, but they get married. Nothing happens. There is no decree, but there is a death. At that point what happens to the property? Does it follow under the marriage? Are they married at that point, or are they not married?

MR. CALLOW [Wisc.]: We feel they are not married, but we need to work on this section again, there’s no question about it. This was a ten o’clock last night problem that we ran into.

MR. ABRAMS [N.J.]: Is it the intention that no collateral attacks can be made on these marriages?

CHAIRMAN READ: Yes, I think that’s the intention.

MR. ABRAMS [N.J.]: How about a wrongful death action? {109}

CHAIRMAN READ: I think it should be clear that the Committee has said that it needs to rework the provisions that relate to 207 marriages which are prohibited. Otherwise there is no collateral attack, and so on. That’s intended.

MR. VON HERZEN [Calif.]: Mr. Chairman, in view of the discussion here, it seems to me what you have really stated in 207 — you have used the word “prohibited”, but I think the intention is that the following marriages are void. This is in effect what you are just now stating.

MR. HELLRING [N.J.]: Some of the members of the Committee feel that (a) (4) under 208 may not be necessary at all, which is the sense of some of the discussion here. In other words, there need not be a tie-in between Section 207 and Section 208. It was thought when Section 207 was finally brought in after much debate to be put into the Act, after an overwhelming vote of the Committee, that in the drafting of it yesterday perhaps we ought to include a tie-in between 207 and 208, but we have not had an opportunity to give that mature consideration.

MR. VON HERZEN [Calif.]: I’m saying that in a civil statute using the word “prohibited” is not near as good as using the word “void”, so that the contract becomes no contract.

CHAIRMAN READ: The Committee will consider that.

MR. JOINER [Mich.]: Mr. Chairman, if you do not have a tie-in {110} between the two, if you want the result that you have expressed that you want anyway, you have to use the word “void” or some such language as that.

I read it the other way, and I had thought the better policy went the other way when I read it to begin with.

MR. HILLMAN [R.I.]: That’s the reason why it was included this way, because it was recommended to us by the Reporters, and it was the view of some of the members of the Committee that the policy would be better the way you have expressed it.

MR. DUNHAM [Ill.]: Do you want a motion one way or the other? Because I think the Committee’s view — the view as expressed here that there is no collateral attack — is the better view.

CHAIRMAN READ: We’ll be pleased to have a motion.

MR. DUNHAM [Ill.]: I’ll make a motion that it’s the sense of the house that there should be no collateral attack on 207 marriages.

MR. HELLRING [N.J.]: And that the present structure, as reworked, should be used?

MR. MILLER [La.]: I’d like to speak against that. I’d like to speak against such a motion being applicable to all of 207. There certainly ought to be permitted a collateral attack with respect to marriage between a father and a daughter. {111} I think you are hitting with too broad a swath in thinking that under no circumstance, as to none of the void marriages, could there be collateral attack.

PROFESSOR LEVY: I’d like to clarify one thing here with respect to the motion.

In the first place, we have to have some clarity about what collateral attack may mean. If you will notice, for example, under 208 (b) (4), the legal spouse is entitled to collaterally attack one of the 207 marriages; namely, the 207 (a) (1) marriage.

Also, there is nothing in the statute which prevents the kind of collateral attack and the sanction of a criminal prosecution for bigamy or a criminal prosecution for incest. That’s the kind of collateral attack that this statute takes no position on, and the Committee did not want to take any position on that. That kind of collateral attack is the most effective sanction for the kind of behavior that is prohibited by 207, will still be available, and will be the primary sanction against that kind of marriage.

The question we’re really talking about is: What kinds of collateral attack should be permitted? And it was the intent of the Committee [to] not permit collateral attacks which have primarily economic consequences on the parties to even a {112} prohibited marriage after the death of one of them. So, for example, in the case that Mr. Langrock mentioned, his couple in Vermont, if they do go into a court and get a license, which they can get if they happen not to mention that they are uncle and niece, and then the old man dies, should it be possible for his siblings after his death to try and get his property away from his “wife” by virtue of the provisions of 207 (a)?

I understand Mr. Dunham’s motion to try to confirm the position of the Committee here; that is, that most forms of collateral attack, other then the ones I have mentioned as being permissible and continuing, should not be permitted.

CHAIRMAN READ: The motion, then, is for the sense of the house that there should be no collateral attack.

MR. SULLIVAN [Id.]: I’d like to ask a question about this. If I understand Mr. Dunham’s motion correctly, it would prohibit any collateral attack on a 207 marriage. But how about where a man is married to a woman for several years and runs off with some gal and marries her under her assumption that he is single, and then gets hit by a truck? Does this motion mean that his legal spouse cannot attack that marriage?

CHAIRMAN READ: No. I was trying to state Commissioner Dunham’s motion as explained by Professor Levy, with a sort of a definition of the kind of collateral attack we are {113} talking about, that, basically, I think we’re trying to exclude the economically motivated collateral attack usually incident to death. Is that right, Allison?

MR. DUNHAM [Ill.]: Yes. As I understand Commissioner Sullivan’s case, that’s taken care of specifically by saying the legal spouse may attack.

CHAIRMAN READ: Yes.

MR. DUNHAM [Ill.]: And that’s all right. But I would think that the defendant in a personal injury action on wrongful death should not be able to say: I don’t have any liability because the only surviving member of the category is this void spouse.

CHAIRMAN READ: Correct.

MR. CALLOW [Wisc.]: Mr. Chairman, I’d like to move to table this, to give us a chance to work on it and present it to this Conference later in our deliberations. I simply don’t feel that we have knowledge enough of our intent or our desires in the working language that we have to come to a vote that would be informative and useful to this Committee, and I would move to take the priority of the motion to table.

CHAIRMAN READ: Is there objection to tabling? [No one responded.] Hearing none, the motion is tabled.

MR. JONES [University, Ala.]: In your reconsideration here of the {114} hypothetical that Commissioner Cunningham presented, it seems to me in the light of your rather limited period of statute of limitations here you might permit reconsideration after death of some of these other marriages — primarily the man who is under the influence of drugs, and five hours later he’s killed.

CHAIRMAN READ: I take it that would be part of the Committee’s reconsideration.

MR. GIBSON:

SECTION 209. [Putative Spouse.] Any person who has cohabited with another to whom he is not legally married in good faith belief that he was married is a putative spouse. A putative spouse is entitled to all rights conferred upon a legal spouse, whether or not the marriage is prohibited or declared invalid (Section 208).

If I may proceed just a moment, I will read Section 211, which is really part of the problem of a putative spouse, or the whole problem that is raised in connection with a putative spouse. I’m skipping Section 210 for the time being, and reading alternate Sections 211. Both of them are bracketed.

MR. MILLER [La.]: What have you done with 209?

MR. GIBSON: We are considering 209 in connection with 211. I’d just like to read these first. {115}

There are three versions of 211:

[SECTION 211. [Validity of Common Law Marriage.] Common law marriages contracted in this State are valid.]

[SECTION 211. [Invalidity of Common Law Marriage.] Common law marriages contracted in this State after the effective date of this Act are invalid.]

[SECTION 211. [Common Law Marriage.] Persons who have cohabited for one year, intending thereby to be married, are married.]

MR. SULLIVAN [Id.]: We had a lot of discussion in Chicago and again here during the Section meeting about 209. I think 209 really opens up a can of worms. Professor Kay informed me that if a man dies having two or three brides at the time of his death, they divide the property up, one way or another. I think that is by case law in California, as I understand it. Is that correct?

And I think that the only thing you can do is that if a person is not married to a woman under the terms of this Act, then there should be no legal consequences flowing from an illegal or invalid or void marriage. I think we’re going to get into a lot of trouble, and unless this Conference is willing to spell out the legal consequences that will flow, both economic and otherwise, from a void marriage, that 209 is going to {116} cause more trouble than it’s worth.

I would move at this time that Section 209 be stricken.

MR. MILLER [La.]: May I be heard on that before the vote is taken?

I might add that at lunch somebody said that there had been a Louisiana problem, partly accounted for by the fact that the Louisiana representatives didn’t appear and speak and participate. I’m afraid that DeVan Daggett and I have created an opposite problem, because we are speaking, perhaps, far too often.

However, the putative marriage problem is one that we have had in Louisiana quite an experience with, and it might help if I could pose a few of the Solomon-like decisions that are necessary to result.

The speaker that just spoke, of course, was exactly right, in that you surely cannot deprive the legal wife of her rights by vesting them in a putative wife, and the problem will come particularly in the instances of 207 (1) — that type of putative marriage — where the wife did not know that the husband was really married, and in good faith married him, but there was a legal wife. Under those circumstances it’s our experience in Louisiana that that innocent putative wife should {117} have some rights, should have some protection, and it would be unwise to follow the suggestion of the last speaker and say in all circumstances the putative wife had no rights.

On the other hand, what should be the relative balance between the legal wife and the putative wife? Now, one of our courts had this situation, and handled it in this fashion. There happened to be no children by that first marriage — by that legal marriage — and in our State we have community property. The husband owns half, and the wife owns half, and that husband took on a putative wife, and the court handled it in this fashion: The court took his half of the community property and gave it to the putative wife; and in that instance the legal wife and the putative wife were both protected.

I can’t suggest on the floor how it should be handled, but it’s not just a clear-cut, white or black situation. There are gray areas, and I think it deserves some reconsideration by the Committee, to find the balance of the respective rights between a legal wife and a putative wife.

MR. MERRILL [Okla.]: Mr. Chairman, I should like to comment a bit on the motion and Judge Miller’s very able comment.

I do have this to say, that it is a problem which I think is impossible to solve in vacuo. You have just too many variations on the situation that may come up, and I think {118} therefore, that the Committee has arrived at the soundest solution with the section on putative spouse as it now stands, because it does leave to the court the problem of how we adjust the property in the particular situation which we have before us. I just think it would be impossible to work out a code — it’s like Jeremy Bentham’s idea that he ought to be able to fashion a code for every man’s vest pocket, and when he had a situation arise, he could pull out a little booklet and look at it, and it would tell him what the law was, and he wouldn’t need a lawyer.

Unfortunately, as we all know, human situations are not that simple, and particularly un-simple is this multiplicity of situations which may arise out of the gay deceiver — male or female — who is able to fool two or three persons of the opposite sex and maintain over a period of years two households.

Now, I simply do not think it is possible for this Committee or any other committee that might be named by this body to work out the exact relationship in regard to the division of property that might arise by virtue of having a legal spouse and one or two — I think in the ordinary case you wouldn’t get more — putative spouses.

MR. MILLER [La.]: I have some suggested language that I think might help: “with due regard to the rights of the legal {119} wife, if any” — some words to that effect.

MR. MERRILL [Okla.]: Thank you. We will take that under consideration, although I do not offhand think that this adds much, if you don’t mind my saying so. You still have the can of worms. But I would urge very strongly upon the house that there are complex problems here. There are innocent parties, children and others, the spouse, herself or himself, who in one way or another have interests that ought to be protected, and I would strongly oppose the motion to delete the putative spouse concepts.

MR. HILLMAN [R.I.]: Mr. Chairman, may I speak in support of the motion?

I think back to a case I handled some years ago involving a bus driver who had a wife at every stop — well, not every stop, but he had four of them — and if you adopt this concept of 209, what do we do with dower? He had children by all four of them, I might add. Do each of the wives get a dower interest in states with dower? Who gets the widow’s allowance in the state, No. 1, 2, 3, or 4, or all of them? Or do they divide it?

I’m afraid that this putative wife concept creates quite a quagmire for us, and I speak in support of the motion, thinking it would be more appropriate left out, and perhaps {120} given very detailed and serious consideration as a separate piece of legislation.

MR. RUUD [Austin, Tex.]: I think we need to distinguish several questions. In Section 207 we are dealing prospectively. We are trying to prevent by law the establishment of a husband-and-wife relationship. When we come to Section 209, we are looking past. We are looking back. A relationship in fact has existed, and the question is: What now should be done, and what recognition, if any, should be given? And Section 209 says: We should recognize the fact that a relationship has existed.

But we qualify it. We give recognition — we give rights — only to the innocent person.

Now, if you want to punish the innocent person who in good faith has behaved as a husband or wife out of some kind of moral notion, I suppose we’re entitled to do that. I think we should. I think there is a great deal of wisdom in Section 209.

Now, a third problem is the one Judge Miller has referred to, and the last speaker referred to. There are complex problems of working out what you do with the property. I have a feeling that we can solve that. There’s nothing wrong to giving dower, or some approximation, to four people. There {121} may not be much to divide, but it seems to me we can develop that kind of a solution.

I would hope that the Conference would reject this motion.

MR. SULLIVAN [Id.]: Frankly, gentlemen, it terrifies me to get into a legal dispute with Dean Merrill, but he says we can leave it to the courts to apportion it out in an equitable manner.

I would call your attention to the language in line 3 of Section 209: “A putative spouse is entitled to all rights conferred upon a legal spouse”. That deprives the court of any discretion of any kind.

I would like to point out further that this section has nothing to do with children. We’re talking about a putative spouse, a person that is not in fact married to a man. As I said before, I think it opens up so many complex legal problems which under the terms of this are unfairly resolved without any discretion in any court, that I just think by striking it out of here we’re in much better shape so far as this Act is concerned. If California and other states have judicial remedies whereby they can exercise equitable discretion in apportioning out property left that way, then I think we are going to have to {122} spell it out here. But to put it in the language that we now have in 209 would be a great mistake.

MR. HELLRING [N.J.]: Mr. Chairman, I think that Judge Gibson, after reading 209, went on to read all three alternative versions of 211 in order to emphasize to the Conference that this entire problem has obviously been the subject matter of a great deal of debate within the Committee, and I think it’s fair to say, a considerable amount of disagreement among the members of the Committee.

Certainly, with respect to the three versions of Section 211, which deal with the more generalized question of common law marriage, you can see that there was not enough unanimity to adopt one or the other position, and so all three of them have been offered in the alternative, either to accept common law marriages as is now the case in 13 states, or to say common law marriages are invalid, as is now the case in the rest of the states — and while I say that is the case in the rest of the states, it should be pointed out that in many of those states where common law marriages are supposedly invalid, they are to some degree recognized for certain purposes, such as Social Security and other purposes.

But in the light of this difference of opinion is this decision which you are now raising on the floor, and the {123} issue pointed up by Commissioner Sullivan’s motion is an issue on which many of us on the Committee feel we need guidance from the Conference. The concept of a putative spouse, while not the same thing as common law marriage, raises some of the same problems — raises similar problems — and is one on which the Committee would certainly like to have an expression of viewpoint.

CHAIRMAN READ: I’d like to ask Professor Kay to comment, Commissioner, if I can ask you to wait a minute.

PROFESSOR KAY: The concept of the putative spouse is essentially an equitable concept which has been defined in some states by case law, and in others by statute, to give protection to the kind of case that normally comes up under it. The normal case that comes up under a putative spouse provision is a case where a man and a woman have lived together for something like 25 or 30 years in belief that they are married, and at the end of that time one of them died, and the question then arises on distribution of the estate, whether the person who has for all that time acted as a spouse, believing he or she was a spouse, should be entitled to the rights of the spouse, or whether some of the collateral kin or the children should instead be able to take all of the property. It is usually purely an economic question. {124}

Now, we have had this doctrine in California as a matter of case law for some 50 or so years. It was enacted as part of our new Family Law Act in putative statutory form for the first time when that Act was passed in 1969, but the doctrine remains the same, and our courts have never had any problem adjusting the rights as between a legal spouse and a putative spouse or more than one putative spouses. However, to make that point clearer and allay some of Mr. Sullivan’s criticism, it would seem to me perfectly appropriate to add a sentence to the end of Section 209 expressing some such idea as this, that if in addition to a putative spouse there is also a legal spouse or there are more than one putative spouses, the court shall in its discretion make such division as seems just under the circumstances of the property, and that would guarantee the court’s expression, and it would solve some of these problems that have been brought up. But if a Reporter is permitted to strongly urge, I strongly urge that you not delete the section, because it does solve many cases that otherwise would cause injustice.

[The question was called for by Mr. Jestrab.]

MR. NEEDHAM [R.I.]: I would just like to pose one question. When you give the putative spouse all of the legal status, as the section reads, what does this do to the property {125} rights? And I’m talking about title — the title to real estate. If there is a legal right, and one or more putative spouses and they all have legal rights, it seems to me that you now have effectively encumbered the chain of title to the real estate.

Now, I don’t know whether giving them this kind of right — I kind of like what the last speaker said; maybe not give them all legal rights, but put some language in there whereby the Act, in the case of the situations in California would give the justice some guidance.

CHAIRMAN READ: Commissioner Sullivan, Professor Kay has suggested that some additional language might be added here which I would put in the category of giving extra coverage to the problem of multiple spouses. Would you accept the Committee’s agreement to consider that, instead of moving to strike this section?

MR. SULLIVAN [Id.]: Frankly, Mr. Chairman, I’m a little hesitant to accept the Committee’s agreement to do anything about this section, because we have discussed it in Chicago, we have discussed it here in St. Louis, and the consensus — as I remember, it was a very close vote, but, anyway, the Committee voted to leave it as is.

Therefore, I am greatly hesitant to leave the question {126} to the judgement of the Committee, because I don’t think their judgement is very good. [Laughter and applause]

That is the reason that I made the motion to bring it before the house. I thought maybe in the wisdom of a greater number of people that have had wider experience, perhaps, than the Committee has shown [laughter], the house could instruct the Committee to do something that they have been unwilling to do.

Now, as far as Miss Kay’s suggestions are concerned, I think perhaps something could be worked out. I didn’t like her language very well. [Laughter] Therefore I would hesitate very much to leave it to the judgement of the Committee.

CHAIRMAN READ: You are entitled to your motion.

MR. SULLIVAN [Id.]: I call for the question.

CHAIRMAN READ: The motion is to strike Section 209, Putative Spouses.

MR. VON HERZEN [Calif.]: Mr. Chairman, I move to table that until the Committee has a chance to get it back. I think this motion has preference, and I think that gets everybody off the spot.

CHAIRMAN READ: The motion is to table the motion to strike Section 209.

MR. BOATWRIGHT [Va.]: If we table it, we’ll kill Commissioner {127} Sullivan’s motion, is that correct?

[Calls of “No! No!”; calls of “Yes! Yes!”]

CHAIRMAN READ: If we table it, it will stay on the table until it is taken from the table.

MR. BOATWRIGHT [Va.]: It will kill Commissioner Sullivan’s motion.

[The motion to table was put to voice vote.]

CHAIRMAN READ: We will have to proceed with Commissioner Sullivan’s motion.

[Mr. Sullivan’s motion was put to a voice vote.]

[Calls for a division]

MR. NEEDHAM [R.I.]: Mr. Chairman, I think it might be time for the chair to consider a motion to adjourn.

CHAIRMAN READ: If I heard a motion to adjourn, I would consider it.

MR. NEEDHAM [R.I.]: I so move.

MR. JENNER [Ill.]: Mr. Chairman, you cannot entertain such a motion.

[Whereupon Mr. Sullivan’s motion was put to a standing vote.]

CHAIRMAN READ: Commissioner Sullivan, your motion lost by 47 to 33.

MR. McKUSICK [Maine]: I wonder if this Section 209 is not {128} so closely related to the subject matter of the three alternative Sections 211 that 209 ought to be bracketed even after you rework it.

CHAIRMAN READ: The Committee will consider it.

MR. GREEN [Mo.]: I hope that, notwithstanding this vote, the Committee will make an effort to make a little sense out of this section and try to prevent double, triple, and quadruple insurance companies being involved in the case of wrongful death. It will take more than adding a sentence. It will take rewriting, and I hope it will be done.

Beyond that, I hope that the Committee will give some consideration to the term “legal spouse.” As I understand it, “legal spouse” is somebody who marries somebody else, not somebody who has been divorced or who is a party to a void marriage; and if that is so, the putative spouse, as I understand it, here cannot be divested of his or her marital rights, the way a divorced spouse can be, and I wonder if the Committee didn’t mean to say that the putative spouse is entitled to the rights that he would have if he had been a legal spouse, or something like that, because it just looks to me that the putative spouse is going to have the rights even though the parties to a divorced marriage would not have, and if you meant what you said a few minutes ago, that the prohibited marriage is really a {129} void marriage, then I think the party to a prohibited marriage would not have any rights, but a putative spouse would have all of the rights of a legal spouse; and so I think there is a great deal of confusion about what you mean by “legal spouse.”

MR. McKUSICK [Maine]: I wonder if the Committee would like to have the issue shaped up by having a motion to bracket Section 209, however reworked.

CHAIRMAN READ: Are you moving?

MR. McKUSICK [Maine]: I would so move.

MR. GIBSON: Mr. Chairman, I think the Committee would like to rework before the Committee of the Whole decides whether or not to put it in brackets.

MR. McKUSICK [Maine]: I will withdraw the motion.

MR. GIBSON: We will proceed with a reading of Section 210.

MR. BRAUCHER [Mass.]: Mr. Chairman, are you passing 211 at this point?

MR. GIBSON: Yes.

CHAIRMAN READ: We’ll catch up to 211.

MR. BRAUCHER [Mass.]: Will you come back to it?

CHAIRMAN READ: We just read it to tie them together. We’ll take them up in order.

MR. GIBSON: {130}

SECTION 210. [Application.] All marriages contracted within this State prior to the effective date of this Act or outside this State that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted are valid in this State.

If there is no comment on this section, we will then proceed to consideration of Section 211, the three choices presented.

CHAIRMAN READ: 211 has already been read.

MR BRAUCHER [Mass.]: Mr. Chairman, I find myself in a little doubt as to what the Committee is proposing to us here. Are they bringing in three things — pick one — or are they saying: Would you promulgate this Act with three alternatives for each state to choose, or what is the posture?

MR. MERRILL [Okla.]: That is the exact answer, Commissioner Braucher. This is a matter on which the members of the Committee and the members of the Section alike were broadly split, and there was extreme reluctance on the part of many Commissioners who came from states which have abolished common law marriage to do anything which would recognize it. There was an equally strong and determinedly expressed reluctance on the part of Commissioners who came from states which retain common {131} law marriage to putting into a Uniform Act anything that would throw a doubt on their continued use of common law marriage, which they have found to be an extremely useful institution; and the result was that it occurred to the Committee that the safe solution here was to — we didn’t think it was desirable to say nothing about the subject. We felt that it was desirable to present the states with alternatives.

MR. MILLER [La.]: Where in the draft are the effects of a common law marriage, so that you know which definition you want to take?

MR. MERRILL [Okla.]: These are left to be determined, as they have been in the past, by the common law doctrine.

MR. MILLER [La.]: I would think, before we could intelligently vote on this, we would need to have some idea of what effects are intended to flow from a common law marriage.

MR. MERRILL [Okla.]: Well, the effects that are intended to flow are exactly all the effects that flow from any valid marriage. That’s the situation. It is a valid marriage, and we have not undertaken to—

MR. MILLER [La.]: Well, in my State there is a great distinction between a putative marriage and a common law marriage. A common law marriage is just living in sin. [Laughter]

MR. MERRILL [Okla.]: The answer to that, Judge, is that you {132} don’t have common law marriage in Louisiana. That’s the answer. We have it [in] Oklahoma, and it’s just as valid and just as effective and carries with it every incident of marriage with bell, book, and preacher.

MR. BRAUCHER [Mass.]: Mr. Chairman, I think it would be helpful if we had a rundown on what the present state of the law is around the country. Each of us has some understanding of his own law. In particular, do we have any states which have once abolished common law marriages, and then put them back into effect by statute?

MR. MERRILL [Okla.]: I am told by one of my fellow Commissioners that there is one. I was not aware of that.

MR. HELLRING [N.J.]: Thirteen states still have it. One of our Reporters will tell you — or perhaps either of them will tell you — that in some of the states in which common law marriage does not exist or has been abolished, certain incidents of common law marriage are recognized as a matter of case law; but they can tell you about that better than I can. The fact is that there are 13 states left in which common law marriages are recognized.

Now, the thought of the Committee, Commissioner Braucher, was that, obviously, the Conference would not adopt both of the first two alternatives. They would take either of {133} the first two, and then could possibly also take the third one, if they wanted to. I hope that gives you an idea of what the Committee has in mind.

Now, you could, of course, leave it as it is, which is to leave all three of them in brackets, which, of course, would mean that you leave it to each state to include which ever section it wants, and not press for uniformity in that respect. The idea in doing that would be to give the statute a certain amount of additional acceptance from the standpoint of uniformity on the rest of it; but those are the alternatives with which the Conference, I’m afraid, is confronted, because of the inability of the Committee to come to a single conclusion.

MR. MERRILL [Okla.]: Mr. Chairman, I hesitate to correct too much my friend and colleague, but my recollection of what the Committee voted was not that we were asking the Conference to choose between one or the other, or possibly a combination of these three; we are asking them to include these with brackets, because the overwhelming position of the two opposing ranks in our Committee, in our Section, and I’m sure it would be reflected on the floor of the Conference itself, was: We are utterly opposed to one or the other of these particular provisions. Our State will accept this if you bring us the {134} particular provision to which we are opposed. And our position, as I understood it, was that we were proposing these as bracketed sections, intended to be bracketed sections, and left to the individual states.

MR. HELLRING [N.J.]: I accept entirely the Chairman’s version of what the Committee did.

MR. DEACON [Jonesboro, Ark.]: I just indicated to the rest of the Committee that I thought that the Conference should be told the intended effect, from the Committee, of the third alternative 211. Actually, there are some of us on the Committee that felt that if being called a common law marriage is not what is known in the case law as a common law marriage — this is a new statutory marriage, because this definition says that people who have cohabited for one year, intending thereby to be married, are married — the case law setting up common law marriage requires a little more than that, so this really is a liberalization of living together and creating a legal relationship; and as I recall, the Reporters said that they thought it was necessary that the states have an opportunity to recognize that there are many young people today who do not want to go through a ceremony, and that they therefore should have the right to have that considered a marriage, because they consider it a marriage, and that is my interpretation as a member of the Committee {135} of what was intended by that third alternative.

CHAIRMAN READ: If I can ask you, gentlemen, to continue to stand there for a moment, I’d like you to hear a little bit more from the Committee before we move.

PROFESSOR LEVY: As you might guess from what has already come from the Committee, speaking as a party to the conversations, and as one no less involved in the issues that the Committee faced and refaced and refaced, I think, and I am told by Commissioner Ruud that when alternative provisions are presented, they are not to be bracketed — but I think the Committee finally felt that it should put, as part of the Act, these three alternative provisions as alternatives, one of the purposes being to signal to the state legislatures that there is an issue — the common law marriage — that they have to face.

If I can go on for a few moments, and simply review in somewhat the same fashion that Commissioner Merrill suggested, the issue of common law marriage has closely divided the Committee time after time, and for very good reasons. It is a controversial issue — that is, by and large, in the states that continue to recognize common law marriage, because those states recognize it as an equitable doctrine designed as an ex post facto saving device to protect the property rights of {136} persons who have enjoyed over a long period of time a stable family relationship.

The common law marriage doctrine has been preserved, very commonly, in states in which there are fairly large minority groups, subcultural group populations. A great many states, as has already been indicated to you, have abolished common law marriage. They have done so on the ground that the original theory on which common law marriages were recognized — namely, that it’s hard to get to the preacher — is no longer necessary and in our Act especially it’s no longer necessary to recognize common law marriages because we have made it considerably easier to go through a ceremonial marriage than has been the case in many states with more rigorous procedural and substantive requirements.

The result of all the discussion was that one of the alternatives should be, if we recognize that common law marriages— not in the traditional sense, that two parties get together in words of the present tense agree to hold out to being married — but is really a way of recognizing as a marriage two persons who have enjoyed a family relationship and are known in the community as husband and wife — that is, have they cohabitated, and do they have the reputation in the community of husband and wife? {137}

So we thought that there should be some effort to put into current statutory terms the kind of concept of a common law marriage that it has become in practice, instead of referring to the traditional words in the present tense, and so forth; and that is the third alternative which you see on the top of page 9.

The other two are simply efforts to signal to the legislatures: You either have or you do not have a common law marriage doctrine, and you have to decide what you want to have, because if you have it and these alternatives are not in there, you might abolish common law marriage by mistake.

MR. DAGGETT [La.]: Mr. Chairman, you have overlooked still another point, you know, on this subject. In Louisiana, as well as all South or Central American countries, by publicly living together you establish what is known as open concubinage, which has a status in those societies different from marriage, and it does have different legal limitations on who shall receive the benefits of this home away from home. [Laughter]

The main reason I got up to speak again, however, being a new member and admonished to sit and listen — and I haven’t done either one — is this: I am in this business every day of drawing up these beautiful laws, and they all wind up {138} in the wastebasket. I’d like to commend the Committee on a beautiful document, an interesting document, but I am reminded of a bill in our Legislature.

We are the only State that doesn’t make it a crime of any kind to commit adultery. There was a bill introduced to prohibit adultery, and it received one favorable vote. [Laughter] The only way that it got to the floor to get a vote at all was that it was recommitted to several committees and they finally got it into one which would report it to the floor without action, so that it could at least be debated and voted upon; and that was the Senate Committee on Wildlife, Fisheries, and Oysters. [Laughter]

Although this is a beautiful Act, I, having been around the Legislature for 20 years, am a little non-plussed to go home after being paid by the State to come here, with my first big effort on a Uniform Law, and I don’t think I can even get this one introduced. Ever since I have been in the Legislature, we amend the laws on marriage and these things every session, and we have no uniformity of policy.

As opposed to the adultery thing I just mentioned, in the last two sessions we have had more hoopdedoo about sex education, as to whether or not it shall be prohibited. After mass marches on the Capitol and public hearings all over the {139} state, the House finally passed a bill prohibiting any sex education in any school, thereby prohibiting the teaching of gynecology in medical schools, and also the usual guppies and puppies in the classrooms in elementary schools; and the Senate in its greater wisdom killed the bill.

I’m trying to say in a jocular fashion that I would like to go home with a simple document that even simple people in the simple Legislature in Louisiana might pass. We started off in a pretty good, simple fashion with marriage licenses; and, you know, the marriage license has four purposes. One is that people ought to know that by going down to the county courthouse they are fixing to do something that’s equally as important as getting a fishing license. [Laughter] Secondly, it gives the clerk of court a chance to shake hands with everybody. [Laughter] Third, it puts $3.00 in the clerk’s special fund.

Now, other than that, it doesn’t have much function but it’s important in that it does give to these people about to embark upon this idea at least a formal sense of doing something important.

Now, we can pass that, but we can’t go into all this sociological business about whether someone ought to be sterilized before they get married. It won’t pass. It would be a {140} good idea.

Now, the insane asylums are full of people, but we keep filling them up. So all I would like is to be able to take home a simple starting ground. This is the most controversial area among the states. I don’t think of any subject where the laws of the 50 states are more different; but we could start if we kept it simple, as a uniform law. This document is too full of complicated issues that couldn’t be resolved in the rest of my lifetime in my own State.

So when the Committee reconsiders it, I’d like for them to think in terms of a simple thing that I can understand and I can sell. [Laughter]

CHAIRMAN READ: Thank you, Commissioner.

MR. BURKE [N.D.]: I’m going to suggest that in Section 210 you need a qualification, “persons who are not disqualified from marrying under Section 207”, and also limiting it to cohabitation within the State, rather than trying to regulate the marriage outside the State. I would offer those two suggestions to the Committee.

CHAIRMAN READ: I think I have already heard some Committee discussion on that subject.

MR. DUNHAM [Ill.]: I think the question that Commissioner Miller asked about what the consequences of all of this are is {141} still very important, because I don’t quite understand why you need any statement on common law marriage. You do have the putative marriage section. Let’s assume for a moment someone can work out one that’s entirely acceptable. I wouldn’t put it where it is; I would put it somewhere else. But that’s a matter of style.

You do have provisions that talk about the legitimacy of children. You have from the putative marriage section provisions about the property. Well, what’s left? The only thing I can think of is: Can you get divorced if you have never been married? Why don’t you put a provision in there saying you can’t? What are the other consequences?

PROFESSOR LEVY: Well, I think it’s not only that. There are people who would not be putative spouses, for example, now. If the Committee adopts Commissioner Joiner’s suggestion with respect to 207 (a) (1) — that is, that a marriage prohibited because it’s bigamous become unprohibited, I think, is the way Commissioner Hellring talked about it, when the legal marriage ends through death or divorce — that might solve some of the problems; but the typical problem, the problem that I think Commissioner Merrill and others from Oklahoma concern themselves with, is the two people who in the case of some minority groups don’t believe in white man’s law, and join {142} together informally in a marriage which last[s] 47 years. They don’t think that they are — they don’t believe in the good faith of their marriage.

The question at the end of that relationship is: Can there be a wrongful death action which the “wife” can take advantage of? Can there be Workmen’s Compensation and Social Security benefits which apply, and so on? That is what the common law doctrine is designed, or used, to effect.

MR. GREEN [Mo.]: I direct your attention to the third alternative of Section 211. I think this has many of the same difficulties that Section 209 has now. 209 is the case of two people who go together for, I guess, a day or a week, or something like that, and the spouse has all the rights of a legal spouse. Under 211 if he has done it for a year, it becomes a full legal marriage. I think something ought to be done with both of these sections to limit it to people who are still living together at the time.

CHAIRMAN READ: The Committee has said it will consider those issues.

MR. SULLIVAN [Mont.]: Mr. Chairman, I move that the Committee of the Whole rise, report that it has made progress in considering the Uniform Marriage and Divorce Act, and asks leave to sit again. {143}

CHAIRMAN READ: You have heard the motion.

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

* * * * * * * * *

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Monday Morning, August 3, 1970

Mr. Harold E. Read of Connecticut presiding;

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

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

Chairman Merrill will give you some introductory explanation of how we are going to get from the new material to the old material, to try to avoid some of the typing errors that have crept in.

MR. MERRILL [Norman, Okla.]: As you are aware, we had some difficulty on Saturday due to the errors of the typing office in preparing the text, and there were typographical errors that we did not have time to correct before going on to this. As a result of the discussions which occurred in the Committee of the Whole Saturday, the Committee and the Section have gone over Parts I and II, dealing with marriage. We have prepared a text in accordance with what we understand to be the questions raised, and when there was a vote, the decisions taken in Committee of the Whole. That is now in the hands of the typists, and will be reproduced and be available later, but obviously we cannot go on with that now. {A2}

So we are going to proceed with Part III on Dissolution of Marriage, and the succeeding Parts, and in that connection again we ran into some little problems with the stenographic division as a result of which we have for your discussion, beginning with Section 301, a test. It is from the book. This will take us over through to Section 305, and we there have some material from the typists, starting with 306, that is on your desks, and it goes over through page 20 — that is, the middle of page 20 — and at that point, then, we have to refer you back again to the book, which has been unchanged, and we will go through with that, the remainder of Part III, and we will then start on Part IV on Custody, if we get that far this morning, using some of the material on your desks.

Is that clear?

MR. HELLRING [Newark, N.J.]: We start in the book?

MR. MERRILL [Okla.]: Yes, that’s the order. And with that introduction and with our apologies for our problems in the stenographic division, I will now ask Commissioner Floyd Gibson to continue with the reading.

MR. GIBSON: We will commence with Part III, Dissolution.

SECTION 301. [Dissolution of Marriage; Legal Separation.] {A3}

(a) The [ ] court shall enter a decree of dissolution of marriage when

(1) The court finds that one of the parties has been a resident of this State or is a serviceman who has been stationed in this State, for 90 days next preceding the filing of the petition or the entry of the decree;

(2) the court finds that the marriage is irretrievably broken; and

(3) to the extent it has jurisdiction to do so, the court has approved or made provision for child custody, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property.

(b) If a party 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.

CHAIRMAN READ: Will you comment on 301?

MR. MILLER [Baton Rouge, La.]: Does that constitute approval as presented? If there is no comment, does that constitute approval as presented?

CHAIRMAN READ: If there is no comment, I take it it merely means there is no comment. [Laughter]

MR. BURDICK [Williston, N. Dak.]: Mr. Chairman, I notice that this section {A4} and the several sections that follow provide for the commencement of this proceeding by the filing of a petition, and this is a little bit at odds with our procedure in South Dakota, where we commence an action by the service of process, and not by filing of the petition, and I think that in line 5, “preceding the filing of the petition” — I would prefer language such as “the commencement of the action” or “commencement of the proceedings”; and then allow Section 302, the commencement of the proceedings, by the service of process rather than by the filing of the petition.

CHAIRMAN READ: The Committee will consider that.

MR. RING {Wash., D.C.]: Mr. Chairman, I have a query to the Committee as well.

Reading Section 302, I gather that the petition may merely allege that the marriage is irretrievably broken, and if the other party accepts that allegation it may leave very little for the court to determine but to accept the allegation of the parties.

This, it seems to me, has a definable effect upon the statement of the purposes that are set out at the beginning of the proposed Act relating to the importance of looking after the interests of the children and the family relationship; and I inquire whether in not defining “irretrievably broken” the {A5} Committee has any feeling that there should be a different standard of whether or not the marriage has reached a point where it ought to be dissolved where there are minor children whose interests also may be wrapped up in the whole question whether or not the marriage is irretrievably broken; and if there should be, or if the Committee’s view is that there should be a difference in view and a difference in the function of the court, if there are minor children involved, whether that should not be expressed in the Act itself.

CHAIRMAN READ: I think the intention is that those considerations are expressed in Section 305, and perhaps you can hold that until we get to 305.

MR. RING [Wash., D.C.]: I’ll wait until 305. I’m sure that there are answers in 305, but I’ll raise it again at that time, if it seems appropriate.

. MR. AUSTIN [Watertown, S.D.]: Mr. Chairman, in connection with 301, I agree with what Judge Burdick said about the matter of the filing of the petition, that it should relate to the commencement of the proceedings, to tie in with South Dakota practice. The question I’d like to raise is whether or not the words “90 days next preceding the filing of the petition or the entry of the decree” do not create a problem as to when you have to commence the 90 days’ residence. {A6}

Is it possible that you could get the proceeding all going and then start the 90-day residence? It seems to me that that would be contrary to the practice in any state at the present time.

CHAIRMAN READ: I think it is contrary to the practice in most states, but I think it is the intention of this draft.

MR. AUSTIN [S.D.]: Well, I question whether that’s the way it should be.

MR. MERRILL [Okla.]: May I further amplify the explanation with regard to this? It was taken up and discussed in Committee of the Whole last year. The view expressed by the Committee and, I think, at that time at least, agreeable to the Committee of the Whole was this, that you may have several situations in which it would be desirable for the court to have jurisdiction to entertain an action for dissolution. One of those is the case of the person who is in the state who is able to file, but who must go out of the state for one reason or another, and then return, or at least be present for the decree; and we did not wish to insist that the petitioner in that instance should maintain his presence in the state for the entire 90-day period.

So there is a problem if you said “90 days before” — let me get that language exactly; if you simply said “for 90 {A7} days next preceding the entry of the decree”, you would have that problem, and we intended to avoid that.

The other was that you may have the problem of the party who has just come in, and we did not want to foreclose the filing of the petition by one who was in the condition of a recent arrival. If they had been here for the 90 days preceding, we thought the 90 days was a sufficient length of time to be an acceptable compromise between some of the states that let you commence an action immediately, the day after you arrive in the state or perhaps in the afternoon of the morning that you flew in, and those which maintain a longer period of residence.

This was taken as an acceptable compromise to that end, we wanted to keep it an open-ended proceeding both for new residents and, on the other hand, the old residents who, because of the difficulties which arose out of the family break-up, might find it necessary to be out of the state after the time that they originally filed their petition.

MR. STRAUCH [Tenn.]: One of the predicates for entering the decree under this is that the court find that the marriage is irretrievably broken; and under (b) the court can enter a decree of legal separation rather than a decree of dissolution, unless the other party objects. Does that mean that at the {A8} time the court finds it irretrievably broken, but there is a potentiality that they might get back together?

It looks like the court would have a little problem there, that it finds it irretrievably broken now, but still they might get back together.

MR. MERRILL [Okla.]: There must be that finding. There must be the finding of irretrievable breakdown.

Now, while I’m up here, may I say to the Committee that, in line with the acceptance of Judge Burdick’s suggestions a while ago, the Reporters and the Committee are making the change at all appropriate places, so that this bit of language which is necessary to adjust to Judge Burdick’s suggestion will be made at various appropriate points.

MR. WALLER [Augusta, Ga.]: I’m asking a question about the meaning of the word “serviceman”. Is that broad enough to include a WAC? Is the word “serviceman” defined anywhere?

CHAIRMAN READ: I think that a good Statutory Construction Act would include it.

MR. PENCE [Laramie, Wyo.]: Eliminating the parentheticals in 301, it says that the court may enter a decree of divorce when it has provided for the maintenance of the spouse. Does this, as it seems to, provide as a condition precedent that in every event where a divorce is issued, provision for the maintenance of {A9} the spouse is requisite?

MR. MERRILL [Okla.]: Commissioner Pence, may I inquire, are you referring to sub (3), lines 8 through 10? Is this your point of reference?

MR. PENCE [Wyo.]: Well, I would eliminate the parentheticals, and it says the decree of the court may be entered when the court has provided for the maintenance of the spouse, among other things, and this seems to anticipate that in every event—

MR. MERRILL [Okla.]: It can deny, if in its view provisions for the support and maintenance of the spouse are not proper. Now, if, for instance, you have the spouse of completely independent means or full capacity to earn and presently employed, and no problem whatever of that sort, there will be adequate provision made by making no specific provision.

MR. PENCE [Wyo.]: It seems to me it should say “if appropriate”, then, or words to that effect.

MR. MILLER [La.]: Thank you, Commissioner. We’ll take that under advisement.

MR. GIBSON: The Committee is considering putting the word “considered” before “approved” on line 8; “the court has considered, approved, or made provision for”. Would that answer your objection, Commissioner Pence? {A10}

MR. PENCE [Wyo.]: Yes, it would.

MR. GIBSON:

SECTION 302. [Commencement of Proceedings; Marital Status Statement; Petition.]

(a) A proceeding for dissolution of marriage or for legal separation is commenced by filing [a Statement of Marital Status (Section 502) and] a petition styled “In re the marriage of ___________and ___________,” verified by the petitioner.

(b) The petition shall allege that the marriage is irretrievably broken and shall set forth

(1) the residence of each party and the length of residence in this State;

(2) the date of the marriage and the place at which it was registered;

(3) the date on which the parties separated;

(4) the names, ages, and addresses of any living children of the marriage and whether the wife is pregnant;

(5) any arrangements as to the custody and support of the children and the maintenance of a spouse; and

(6) the relief sought. {A11}

c) Either or both parties to the marriage may file the petition.

Any comment on 302? [There was none.]

If not, we will proceed with 303. In this section the stenographer, or typist, left out part of the section, and I’ll read it to you and call your attention to it when we come to it. The insert is after the first sentence of 303, and the wording has been changed to conform to Judge Burdick’s suggestions.

SECTION 303. [Response.] If a proceeding is commenced by one of the parties, the other party may within [30] days file a verified response.

I will next read the part that has been left out of your copy.

Existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are hereby abolished.

That language also appears in your draft on page 32; that is, the language, style, and phraseology are taken from page 32, line 7. Continuing:

[The respondent shall file a Statement of Marital Status (Section 502), but his failure to do so does not deprive the court of jurisdiction to dissolve the marriage.] {A12}

I will continue with Section 304.

SECTION 304. [Temporary Order or Temporary Injunction.]

(a) In an action for dissolution of marriage or legal separation or for maintenance or support following dissolution of the marriage by a court which had jurisdiction only to dissolve the marriage, either party may move for temporary maintenance or for temporary support of a child of the marriage entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.

(b) As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction.

(1) restraining any person from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life, and if so restrained, requiring him to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued; {A13}

(2) enjoining a party from molesting or disturbing the peace of the other party;

(3) excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result.

(c) The court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury would result to the moving party if no order were issued until the time for responding had elapsed.

(d) A response may be filed within [20] days of service of notice of motion or at the time specified in the temporary restraining order.

(e) On the basis of the showing made and in conformity with Section 308 on maintenance and Section 309 on support, the court may issue a temporary injunction and an order for temporary maintenance or support in such amounts and on such terms as are just and proper in the circumstances.

(f) A temporary order or temporary injunction

(1) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent {A14} hearings in the proceeding;

(2) may be revoked or modified prior to final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under Section 314; and

(3) terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.

MR. HILLMAN: I have two small comments.

First, with regard to subpart (b) of this section, in line 17 and 21 I would suggest that the language be broadened to include potential molesting, disturbing, or harm to the children as well as the spouse, which seems to be contemplated by the present language. If it does fit with the present language, I think it could be made clearer.

Also, I would suggest that the 20 be made 30, as to the time within which the response may be filed regarding the advice of notice of motion. The party who responds to the petition has 30 days to file, and I think this provision should be parallel.

MR. BULLIVANT [Portland, Ore.]: I’d like to inquire with respect to (b) (1), an order restraining any person from transferring, encumbering, concealing, et cetera. Does that contemplate that the third person who may have custody of a bank account or other assets of one of the parties be made a party to the divorce proceeding? We have had a lot of procedural trouble in my State over this issue as to whether or not if those persons had custody of assets they must be made a party to the divorce proceedings.

MR. MERRILL [Okla.]: Commissioner, may I inquire if it is the thought that this injunction might run against persons who are not parties to the action?

MR. BULLIVANT [Ore.]: That’s correct. A bank holding the bank account of one of the parties may receive a restraining order, for instance.

MR. MERRILL [Okla.]: Well, if it is appropriate, just as with any other injunctive proceeding or restraining order, if you can make the persons subject to it, and serve them with a copy, they then are required to obey the restraint.

MR. BULLIVANT [Ore.]: Our courts at the trial level have held that such an injunction is invalid.

MR. MERRILL [Okla.]: Is that based on constitutional grounds?

MR. BULLIVANT [Ore.]: Just the fact that they are not a party to the proceeding, and they cannot be bound by the order, unless they are made a party.

MR. MERRILL [Okla.]: You mean, in Oregon you cannot serve {A16} notice — injunction — in the order of injunction itself — on a person, and bind him by it?

MR. BULLIVANT [Ore.]: That is correct. If he is not a party to the proceedings, I think our courts have held that privity doesn’t exist.

MR. MERRILL [Okla.]: The suggestion comes — and I think it’s a sound one — that in a state which has a practice of that sort it would be appropriate to put in the comment the provision that in those states it would be necessary for a petitioner, or a party who wishes an order of this sort, to comply with the local rules of practice by making the prospective person to be enjoined a party in accordance with the rules of that particular state.

MR. PRYOR [Burlington, Iowa]: Would it not be sufficient to insert, following the word “from” in line 11 the words “directly or indirectly”?

MR. MERRILL [Okla.]: We had thought, Commissioner Pryor, that “in any way disposing of” covered both direct and indirect disposition.

MR. PENCE [Wyo.]: Mr. Chairman, I wanted to raise two or three or four questions, and not for purposes of debate, but merely as inquiry.

You are using the word “petition” instead of “complaint”, {A17} which we have become accustomed to under the rules of procedure. You are using the word “response” instead of “answer”. You are talking about a 30-day answer period instead of a 20. You are also talking about verifying complaints, and I’m not talking of those complaints which ask for injunctive relief, but the initial complaint. And I wonder why we depart in the field of domestic relations from the terminology which has become more or less uniform under the rules.

CHAIRMAN READ: That is the point that Commissioner Burdick made earlier. The Committee has accepted it, and will make—

MR. HELLRING [N.J.]: [Interposing] No, no, no!

CHAIRMAN READ: I’m sorry. It sounds to me like the same point, but—

MR. JESTRAB [Williston, N.D.]: Mr. Pence took the words right out of my mouth.

MR. MERRILL [Okla.]: You second Commissioner Pence’s inquiry?

MR. JESTRAB [N.D.]: Yes, and I have some other things I’d like to say. [Laughter]

MR. MERRILL [Okla.]: Commissioner Jestrab, if you don’t mind, we’ll take that one first, and then we’ll take the next one. {A18}

With respect to several suggestions which Commissioner Pence combined in one, this too was discussed at the Committee of the Whole last year, and you will recall at that time we made the point, and we were not instructed otherwise, that because this is a procedure which involves a new and different concept of the approach to proceedings for the dissolution of a marriage, that we had felt that it was wise to depart from the established practice and to establish terms and to emphasize that departure through the adoption of this new phraseology. This is the reason.

MR. JESTRAB [N.D.]: Everything that Mr. Pence said I have been wanting to say. I don’t know anything about unhappy marriages, my own having been one of bliss for so many years. [Laughter]

I have been thirty-two years at the bar, and I have never gotten anybody a divorce. I do know a little bit about procedure — not much, but a little bit — and always, anytime some reformer wants to start changing the law, they also want to start changing the procedure. And if I may take the liberty sometimes reformers may know a lot about divorce, but they don’t know very much about procedure.

The plain fact of the business is that if you are dealing with something which has to do with human relationships — {A19} procedures where the law regulates human relationships — all you are going to do is to make it more confusing. Some of us have labored long and hard to achieve uniformity of procedure, and I don’t think any divorce experts ought to come in and start changing the law of procedure, something that we have labored so hard and so diligently in so many states to achieve for so long; and if you can’t say that you will file a complaint to achieve what you are talking about — a petition; if you can’t eliminate these verifications; if you can’t talk about the commencement of a proceeding — the commencement, excuse me, of an action — under the Federal Code the concept of a proceeding is different from that of an action. This is an action, and you ought to call it an action, because all you are going to do is to destroy what so many of us have worked so hard for so many years. This is a great mistake.

MR. HELLRING [N.J.]: Commissioner Jestrab and Commissioner Pence—

MR. JESTRAB [N.D.]: I’ll make a motion.

MR. HELLRING [N.J.]: Could you hold it for just one moment? Maybe this will make it unnecessary.

The Committee, and even the Reporters, I think it can be said — don’t feel very strongly about any of these things. What’s in a name? {A20}

However, I think it’s fair to say that the Committee was guided somewhat by the views of the Reporters and others who suggested that using milder terminology for these proceedings would have a tendency, perhaps, to mollify the adversary aspects of this type of proceeding from the way it had been, and some words like “response” instead of “answer”, words like “petition” instead of “complaint”, are found here.

However, I think it’s fair to say that the Committee will take the views that have been expressed here under further consideration and will debate the matter, and if that’s satisfactory, then a motion will not be necessary. However, if you want the sense of the house on it, please go ahead.

MR. MERRILL [Okla.]: May I add to Commissioner Hellring’s statement one other factor that I think might well be taken into consideration? And this is that in the two states which recently have enacted statutes which accept the concept of irretrievable breakdown as the sole basis for dissolution of marriage, this type of styling has been employed in both statutes, and therefore there is some indication of what legislatures are willing to accept, even in states which have established procedures which otherwise deal with the problem of pleading.

MR. PENCE [Wyo.]: Well, Mr. Chairman, for the most part I {A21} think that procedures are not legislative any more within our concept of things, and that there are rules of the Supreme Court, and I hate to go back to the old system of legislating rules after prescribing rules by the Court, and I think that we should have a sense of the house, and I move you, Mr. Chairman, that the sense of the Committee of the Whole in this particular is that the language and procedure in this Act should be amended to conform as nearly as possible to the Rules of Civil Procedure as we know them.

CHAIRMAN READ: Will you remark on the motion?

MR. JESTRAB [N.D.]: If nobody wants to speak, I can’t emphasize too strongly what I have already said, and I would like again to amplify what Commissioner Pence has said about the rules of court.

We are just starting on a similar project in the rules of evidence, and I think that all you are going to do is to get the legislature back into enacting procedural statutes and you are going to give aid and comfort to the people who have regretted that they have lost this power; and I would ask at least all practitioners, people who go to the courthouse, people who deal with this, to support this motion.

MR. CORNELL [San Francisco, Calif.]: We have adopted this Act, and I think that procedure is very important with respect to the philosophy {A22} behind the change, which is to take dissolution, the breakdown of marriage, out of the advocacy realm. By using the language of plaintiff and defendant we have traditionally in the past placed blame on one party or the other. I think that the only law we have in California that held marriages together in the past has been the community property law. Other than that, I don’t think that the Dissolution Act is going to help very much with respect to saving marriage. I don’t think the present laws — they are strict on other states — help save marriage either. I think that’s up to the social workers, the churches, and the schools.

What we have done with the change in California is change the aspect of divorce, and it takes education. Lawyers don’t change their ways very fast, and by changing the terminology, it’s helping us to give a new view toward this. I think the Act, if it’s expected to save marriages — and it falls short there — I don’t think that’s the scope of this Act.

MR. WELLING [N.C.]: You are not going to save marriages by calling it an action, or a proceeding, or anything else. It doesn’t make any difference what you call it. When people get to the point where they are going to divorce and separate from each other, one party is mad. So let’s don’t call a cow a horse, and let’s stay with our civil procedure. Let’s call it a complaint, and an action.

And further, I find no place in this Act where it provides for service of process as we know it in most states. I think we ought to leave the procedure matter out of this Act entirely.

MR. THODE [Salt Lake City, Utah]: I don’t understand that “petition” and “answer” are not adversary terms. It just seems to me that those are older adversary terms. If this was intended to be taken out of the adversary process, it seems to me it should be other than “petition” and “answer”. Those are adversary terms too; but I certainly agree with Mr. Jestrab that the modern terms are the ones that should be used.

MR. PRYOR [Iowa]: We have exactly the same Act as the California Act. It went into effect the 1st of July. I agree wholeheartedly with everything that the Commissioner from California said.

Incidentally, the term “divorce” is not to be found in our law. It is an Act for the Dissolution of Marriage.

CHAIRMAN READ: That comment supports the Commissioner from California, saying that Iowa has the same Act and the same terminology, and he would favor the general trend of the existing draft.

MR. NEEDHAM [R.I.]: I think that with the two comments {A24} from the Commissioners whose states have adopted this Act, the effect of Commissioner Jestrab’s motion is perhaps more far-reaching. It’s more fundamental, I think.

I think what we are talking about now is: Is the house ready to abandon our traditional concepts of what happens in a divorce action, and will our states accept a theory of a compromise between husband and wife, simply because the agreement has been made and the property has been distributed — elimination of the fault theory of divorce?

I don’t think that when the motion was made to go back to our rules of civil procedures that it necessarily implied that. Are we ready to accept this theory?

But I think, if we go back to the rules of civil procedure, we definitely are going back to accepting a fault type of domestic relations, and if that’s what the purpose of the motion is, I think we ought to at least inspect that idea before we abandon what the Committee is doing.

I might say, Mr. Jestrab, that I do agree with you. I would like to go back to the fault concept of divorce, and I’m not as liberal as they are in Connecticut, and I do realize that in divorce, as my good friend from down South said, one of the parties is mad, and I think that what we traditionally have known in divorce, regardless of what we call it — we’re not {A25} going to keep the parties together.

MR. JESTRAB [N.D.]: Mr. Chairman, I don’t mind being quoted, but I don’t like being misquoted. [Laughter] I haven’t expressed any views on the merits of this Act one way or the other. I think that I have even refrained from voting on some of the motions.

I’m talking now about: How are you going to accomplish the results that you seek to accomplish by this Act? And that’s all that I’m interested in. And that is the procedural machinery that you endorse. And I think that to adopt 1875 language — “petition”, and so on — there isn’t anything new about it. It’s just a misunderstanding of what you are talking about. And all that I’m speaking for is in support of the rules of civil procedure.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’m troubled by this terminology dispute. I don’t suppose a great deal turns on it ,but I have the feeling that if you’re going to register lands, for example, you don’t start with a complaint; you start with a petition. If you are going to adopt a child, you don’t have a complaint for the adoption of a child. And I think the spirit is to get this thing into a little different category of type of judicial proceeding where, as I say, a petition to register land, a petition to adopt a child — to me, this language {A26} of complaint doesn’t seem very appropriate.

Now, maybe in North Dakota they use “complaint” for a lot of uncontested and nonadversary proceedings, but I find that more or less inappropriate language, and I would like enlightenment on it.

MR. VON HERZEN: Mr. Chairman, Members of the Conference: There are two aspects of this that I have gathered from the debate. One is the question of whether or not this is going to create any confusion, and with relation to the attorneys that have had occasion to practice under the Act as it was passed in California I am unable to find, and have been unable to find in the last year, any substantial confusion that has resulted from the use of the new terminology. This is Point No. 1.

No. 2 is that I have heard, instead of Mr. Jestrab’s motion — I have heard Mr. Pence’s motion, and Mr. Jestrab has risen to support Mr. Pence’s motion. Mr. Jestrab has not made a motion. Am I correct in this?

CHAIRMAN READ: I believe so.

MR. VON HERZEN: Now, if this be true, and what I heard was the fact that we were perhaps departing, or entering into a field where procedural rules were being made in this Act, I rise to differ. I think that the use of terminology does not {A27} require or present a position that has put procedural rules as a substantive law. We still have motions. We still have certain things that we have to do. We still have to comply with rules respecting time, and things of that sort, in procedural matters. There are matters that will come up in these type of petitions that will require the ordinary rules of procedure, which we have not changed.

Now, the fact that we call the matter a petition rather than a complaint does not change procedure. It is simply terminology. When I was attending law school some years ago, they required us to take a course in common law pleading. Now, gentlemen, the fact that we have gotten away from certain types of common law pleading does not in my way of thinking change the fact that we are in modern law calling a matter as it should be called, perhaps something different than a complaint, perhaps something different than an answer. And this I think to be good. It has served California well so far. I admit that perhaps another five or ten years will give us the perspective of history, and things of that sort, but we don’t need that. I think we have at least enough innovation within the Conference so that we’re able to accept mentally new terminology where it’s needed, and I think it’s needed in this Act.

MR. CALLOW [Wisc.]: I’d just like to make one further observation {A27a) that does provide that the petition may be filed by both of the parties, and this may be a departure from the true adversary relationship of a complaint against one another. You might suggest they are both complaining about the situation of marriage, but we do provide that both parties may file this petition together, which makes it something other than a complaint of the one against the other.

MR. BURDICK [N. Dak.]: I have no great difficulty with the terminology of “petition”, although I prefer “complaint”; but nowhere in these sections do I find any provision for the service of anything upon the respondent.

MR. HELLRING [N.J.]: Section 303 (9).

MR. BURDICK [N. Dak.]: [Continuing] . . . whether by publication; whether you rely on the procedure under Rule 4, in most states—

CHAIRMAN READ: Section 303 provides for a response within so many days after service.

MR. BURDICK [N. Dak.]: But service of what?

CHAIRMAN READ: Service, I take it, would come under the ordinary procedural law of the state.

MR. BURDICK [N. Dak.]: We don’t have any provision for serving a petition. We have a provision for serving a summons, and if it can be served, then the summons must be accompanied {A28} by the petition, and if not, it must be filed, and notified where it is filed and where a copy can be obtained.

CHAIRMAN READ: I think service would be in accordance with the rules of procedure of the state, and it seems to me that’s the point that Commissioner Von Herzen was making.

MR. BURDICK [N. Dak.]: Well, the only provision we have is for service of a summons in our rules.

MR. DAVIES: Mr. Chairman, point of order. I think Judge Burdick has a very good point which I don’t want to have blurred with the issue of terminology change, and I hope we’ll dispose of that one and then get to the one which I believe has some merit.

CHAIRMAN READ: That was a point of order? [Laughter]

MR. BUERGER [N.Y.]: I ask for enlightenment with respect to rules in other states. I am reasonably familiar with those in New York, where our Civil Practice Law and Rules provide both actions and proceedings.

The purport of what I understand is Mr. Pence’s motion is that the terminology should be adapted to whatever the general terminology that is in use in a particular state, and that we should try to avoid the use of terminology that is not consistent with existing rules.

MR. DANA [New York, N.Y.]: I would like, respectfully, to suggest to {A29} Commissioner Jestrab and the other Commissioners who were about to make a motion that we vote for or against this rather novel change to consider withholding their motion.

The whole point of this Act is that it contains many new and startling features. Just to take a small example, we saw on Saturday that solemnization is much easier. We’re just coming to a novel point that there can be divorce, or dissolution by agreement between the parties; and I think another important, novel feature of the Act is this terminology change of taking the adversary idea away, and thus improving it.

I think as we reach each extraordinary new feature of this Act, a final motion by the Committee of the Whole on whether that feature should be adopted should await the time when we have seen all the new, extraordinary features in this Act, so that we fully appreciate what the Committee has done and have the entire concept. I would suggest that, as we go along, there can be changes in the phraseology, and so on, but on each big point it seems to me that the motions on these very important points, particularly — I come from New York, in which, as most of you know, it has taken us 300 years to get a new ground other than adultery for divorce. We just got a new, extraordinarily liberal abortion law. But I think that in New York this Act might not, possibly, succeed right away, {A30} but before I would get up and say, “Well, there’s no point in taking over this Act, because it has so many new features that people aren’t accustomed to that it might be disapproved,” in each state I think we should see the big points, wait for each startling new feature, and accept it for the moment, and wait until all the big, new points are before us, before we vote seriatim, one by one, as we go along, to leave in or knock out one or another of these extraordinary new points.

I therefore urgently suggest that a motion to strike out one of the big, new points that we have come on today, for getting rid of the hostile and adversary words, should be delayed until we have seen all the extraordinary high points of this Act.

CHAIRMAN READ: The motion is for the sense of the house as to using terminology more consistent with the customary rules of civil procedure.

MR. SPANN [Atlanta, Ga.]: I think we just had a motion to delay.

MR. HELLRING [N.J.]: He didn’t make a motion.

CHAIRMAN READ: I don’t believe there was a motion.

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

MR. GIBSON: We will proceed with the reading of Section 304.

MR. EAGLES [Raleigh, N.C.]: Do we assume that the Committee will {A31} take whatever steps are necessary to provide for service, or whatever you are going to call these papers?

CHAIRMAN READ: Yes, we will do so.

MR. MERRILL [Okla.]: May I make one other response to that? And that is that the language of 303 is the language in California, and I am informed by those with experience in the California practice that they have had no trouble in adapting that to their regular methods of procedure.

MR. EAGLES [N.C.]: The only problem is that 303 presupposes a requirement of service, and I don’t find it.

CHAIRMAN READ: The Committee will consider that problem.

MR. McKUSICK [Maine]: I would also suggest that the Committee should consider such questions as the availability of discovery and other procedural devices. Is this an action which is within the coverage of Rule 1 under state rules that are modeled on the Federal Rules? Is this an action with all the procedural devices that are available in an action?

CHAIRMAN READ: The Committee will consider that also.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, the Act contemplates verification for the petition and the response to the petition. It contemplates that the motion for a temporary order be accompanied {A32} by an affidavit; but it says nothing about the response to the motion being verified. In the District of Columbia, a response, which is called an opposition, is required to be verified.

MR. HELLRING [N.J.]: You mean on line 26 of page 11?

MR. GARDNER [Wash., D.C.]: Section (d).

MR. HELLRING [N.J.]: Yes.

MR. GARDNER [Wash., D.C.]: Does the Committee intend to not require that that response to the motion be verified, or has it considered it?

CHAIRMAN READ: The Committee will consider that also.

MR. GIBSON: I think that, as contemplated by the Committee, though, it is not verified.

MR. HELLRING [N.J.]: He means the response to the temporary.

MR. GIBSON: Yes. I think it is intended by this Act that all of the procedural rules and laws that the state has will apply to the Act, such as the taking of depositions of discovery, and any rules and any implementations to procedure that a state has will apply to this type of proceeding, and a comment will be made in the Act to that effect.

MR. EAGLES [N.C.]: Point of clarification. Do you intend to require the response to be verified or not? {A33}

MR. GIBSON: The Committee certainly does.

MR. HELLRING [N.J.]: (2) of 303 provides for it.

MR. GIBSON: We will proceed with the reading of Section 305.

MR. BURDICK [N. Dak.]: Mr. Chairman, it’s a little difficult to get to the microphone before you get to the next section. I understand this is deliberate. [Laughter]

But I think that it won’t be sufficient to have a mere comment that the ordinary rules of civil procedure will apply to the extent that they are not inconsistent with this Act. I think you have to have a provision in the Act to that effect, if that’s what you intend.

CHAIRMAN READ: Thank you.

MR. GIBSON:

(a) If both of the parties by petition or otherwise have stated under oath that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court shall, after hearing, make a finding whether the marriage is irretrievably broken.

(b) If one of the parties has denied under oath that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect {A34} of reconciliation, and shall

(1) make a finding whether the marriage is irretrievably broken, or

(2) adjourn the matter for another hearing not less than 30 or more than 60 days later and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.

CHAIRMAN READ: Will you comment?

MR. RING [Wash., D.C.]: Mr. Chairman, I raised earlier the question whether there was to be some distinction between the situation where the marriage really involves only two parties, the husband and the wife, and the situation where you have minor children involved.

I serve on a school board of a city of 100,000, and invariably when we get to talk about problem children within our school system, the report that we get back from our guidance people, to a very disturbing rate, is that our children have come from broken homes.

Now, I recognize that in many instances where you have held the family together you still have a problem, but the problem arises from something far more profound than the problem of whether there exists a contractual husband-and-wife {A35} relationship. Frequently families do face up to the responsibilities that extend beyond merely their personal relationships, and are able to make a wholesome relationship because there are minor children involved and they feel a sense of responsibility to those minor children, and it seems to me that Section 305 does not take this into account.

When the husband and wife agree that their family situation is irretrievably broken, the judge is supposed to have a hearing, but I think experience would demonstrate that where both husband and wife agree the judge is not going to conduct a very extensive hearing, but there are other parties that may be interested — if there are minor children involved, the minor children themselves, and the community at large, who may be faced with responsibilities for those minor children.

And so I would propose that there be some addition to subsection (a) making it clear that the judge, in holding such a hearing when there are minor children, must take into account the welfare of the children themselves.

In short, I realize that I’m suggesting that the standard of “irretrievably broken” is a standard that, when it’s just a husband and wife, may be a lesser standard than when there are minor children involved; but I think that’s a wholesome dual standard that should be reflected, and I would {A36} propose some language along the lines of adding after “irretrievably broken” in subsection (a) “taking into account in making such findings the welfare of minor children, if any”.

MR. HELLRING [N.J.]: Commissioner Ring, this Section 305 is, of course, the heart of the whole Act, and as you can imagine and the Committee of the Whole can imagine, it has been the subject matter of three years of debate among the Committee and among the advisors to the Committee and among the Section, and everybody else, and it is the distillation of all of the wisdom we have been able to gather from England and from California and from all of the states that have had it under consideration, and from all of our advisors.

As 305 now stands, it doesn’t make separate reference to the situation of families with children as distinguished from families without children. In earlier drafts there were such distinctions. The way in which the language of 305 is now cast, the ultimate discretion remains with the court. 305 as it now stands does not permit parties under any circumstances to come in and simply register their divorce by agreement. In every case a judicial determination of irretrievable breakdown is required as it now stands.

We have given special consideration to the subject matter of representation for children in Section 310, which, (A37} when it is presented later today, will draw to your attention the fact that the court is permitted to appoint an attorney to represent the interests of a minor or dependant child with respect to custody and support.

Now, when we get to 310, we’ll be discussing the representation of a child in that section, and it may be that your comment should wait until then. You may want at that time to make a motion or to make a suggestion, or a proposal, that in appointing an attorney to represent the interests of a minor child, the attorney may be authorized under the Act to deal not only with questions of custody and support for the child, but perhaps also to be able to be heard on behalf of the child with respect to the question of irretrievable breakdown. The Committee debated that, and as Section 310 now stands, we limited the representation to the subject matter of custody and support; but I urge you to consider that when we come to Section 310.

So far as Section 305 is concerned, certainly the court in making its determination of irretrievable breakdown or not irretrievable breakdown — because as the language reads, it says that “the court shall, after hearing, make a finding whether the marriage is irretrievably broken”; and, of course, in making that determination the court will take into consideration {A38} all factors, including the question of whether there are children, whether there aren’t children, and what the best interests of those children may be.

MR. RING [Wash., D.C.]: I think the suggestion that you have made with respect to Section 310 is not a full response to my concern. The situation, as you have described it to me, is that, really, there will be a common law of every court, and the common law is going to depend upon the disposition of that particular judge. The judge has no guidelines as to what “irretrievably broken” means, and he’s going to determine in his own mind whether a different standard should be taken into account when there are minor children, and I think that this issue should be posed for the group as a whole.

I realize that you have been giving diligent consideration to this matter for three years, and, indeed, your wisdom may be greater than mine, but I think that I would like to propose, in the way of a motion, without being wedded to particular language, that there be included some general statement to the effect that in making this determination of irretrievably broken the judge shall take into account in the making of such a finding the welfare of minor children, if any and I so move.

MR. LANGROCK [Vt.]: I have read this section and, to be {A39} quite candid, I’m pretty shocked. I remember last year at the Conference the idea that when two adults have verified under oath that they do not wish their marriage to continue, and that it is irretrievably broken, that ultimately a divorce will be granted, the basic principle being that nobody can force two people to live together who are determined to end their marriage. That was the feeling that was adopted by the Conference last year. I believe there were one or two dissenting votes out of the entire group; and I’m surprised that the Committee has gone back to this.

The other thing that I’m really shocked at is that, as a Vermonter, I find this a reactionary step backward from getting a divorce in Vermont. We have that antiquated fault principle, but if somebody is at fault, or both parties are at fault, they can get a divorce. If both are committing adultery, either one is entitled to a divorce, and no judicial officer can interfere with it.

In this case we have two people who are previously at fault, and some judge can sit in here and say: We’re not going to grant it. We’re going to force you two people to live together and try harder.

Personal philosophy can come into it, and personalities can come into it. And so in a situation where I can obtain {A40} a divorce for a client in Vermont now, under this liberalized Act I wouldn’t be able to.

So I certainly would be against the motion. My feeling is that the sense of the Conference which was had last year should be returned to, and not left where it is at the present time either.

MR. DUNHAM [Ill.]: I was going to make roughly the same point that Mr. Langrock made, although until Commissioner Hellring spoke I thought maybe I had a matter of style.

It seems to me that what the Conference voted last year is whether that word “whether” should be deleted and the word “that” should be substituted. ” . . . that”, it seems to me is what’s involved in the consentual divorce.

Commissioner Langrock made the point in response to the motion — and I agree with him on that — that if we introduce these factors about children and give the judge “whether”, we are actually making divorce harder in the states that have all sorts of ridiculous fault tests. Today, for example, if you have had absence equivalent to desertion for a year, or whatever the statutory period is, the judge cannot deny the divorce on the ground that there are children.

MR. DAVIS [Tex.]: Mr. Chairman—

MR. MERRILL [Okla.]: Commissioner Davis, if you don’t mind, {A41} I would like to comment on one aspect of Commissioner Dunham’s comment, to put the matter in perspective.

What the Conference did last year in Committee of the Whole was simply to sustain the principle that irretrievable breakdown should be the sole ground for dissolution. It did not undertake to specify a particular method of procedure or to specify whether by certain types of filings the court could be required to reach the finding of irretrievable breakdown, and it is through the process of debate which we have been through at great length over the past year that we have finally evolved to the point that we feel that we simply cannot properly draw an Act which eliminates the authority of the court to determine the question of irretrievable breakdown.

Now, this does not mean that you are putting into the hands of any recalcitrant judge the authority to delay and prevent divorce from now on out, as Commissioner Langrock puts it, or for an unconscionable time. The procedural arrangements are such that eventually you get your decision, and it has got to be a decision based on the evidence, which will include the parties’ position as to the situation in which they are put.

I frankly expect the course of decision under this Act, and the way the courts will function under this Act, to {A42} parallel very closely what our courts in my own State have done with the concept of incompatibility. In fact, the whole trend of the decisions there and the actual proceedings under it have seemed to achieve under the style of incompatibility exactly the result that it is hoped will come from this Act under irretrievable breakdown.

So I would like to lay the ghost, if I may, of any fear that this is a device for holding people together forever.

MR. DAVIS [Tex.]: I think my comment goes very much to what Commissioner Merrill says. It is my recollection that last year there were certain tests in this Act as to what constituted an irretrievable breakdown of marriage, and I understood that those were in to keep a recalcitrant judge from deciding that there is always a chance for every marriage.

Now, of course, there’s the right of appeal, but I’m wondering if after the judge has made the findings of fact — how effective some of those appeals may be; and it seems to me that some of the tests that you had in before were good tests to prove that the marriage — and compel a finding by the court that the marriage had — irretrievably broken down.

MR. LANGROCK [Vt.]: I must disagree a little bit with Professor Merrill. I think I hold the world’s record, having lost four uncontested divorces [Laughter] — and I’m dead serious {A43} about this. In all four cases tragedy resulted. And to leave it to a judge — I think the first speaker talked about the individual standards of the judge. He would like to impose more standards, and clearly set them forth. I think you should take away the discretion of the judge where two parties have decided there is no marriage.

CHAIRMAN READ: I will ask for the moment that you confine your remarks to the motion.

MR. LANGROCK [Vt.]: If I may, I don’t think I’m going afield from it. What I am simply saying is that the motion was asking to put more standards into this particular area to guide the judge in making this judgement. I am saying that if you put the standards in, you are going to create havoc. If you leave it the way it is, with no standards, you are going to create havoc. What you have to do is take out the discretion of the judge when both parties say there is no marriage here.

MR. DUNHAM [Ill.]: Well, we are in an odd parliamentary situation; because Mr. Langrock and I didn’t get the floor first, we’re in the position of having to vote no on a proposal to add further restrictions which are not necessarily contained in the word “whether”. I suppose what we have to do is vote no on that, and if we are successful, then I would like to make a motion that the word “whether” be deleted, and that the {A44} word “that” be inserted.

CHAIRMAN READ: That will be in order in due course.

MR. JESTRAB [N. Dak.]: Again, I think that this could be resolved in procedural terms that are familiar to lawyers, and you could recite in the Act that if an affidavit — or where a party has testified by means of affidavit in a courthouse — that there shall be a conclusive presumption that the marriage is irretrievably broken. That language is familiar to lawyers, and I suppose for that reason you don’t want to use it; [Laughter] but it is at least something that we have worked with before, and it’s done in other actions.

You will find it very often in real property, where there is a requirement that you search for people in the chain of title, and if you file an affidavit, in the language of the statute that’s enough. So this is something that we’re used to; but, again, probably you don’t want to use it. [Laughter]

CHAIRMAN READ: The motion is that language be added to subsection (a) of Section 305 requiring consideration of the welfare of minor children, if there are any.

MR. JOINER [Mich.]: Point of order. It never received a second.

CHAIRMAN READ: Seconding is not required under the {A45} rules of the Conference.

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

MR. DUNHAM [Ill.]: Now I would like to make the motion that in line 5 of Section 305 the word “whether” be deleted, and that the word “that” be inserted. And I take it, from the explanation of the Committee at this point, that that’s not a change of style.

MR. MILLER [La.]: I’d like to speak in opposition to that motion. If we are to be that liberal, why go to the extent of having any judicial proceeding? Why not merely permit the two spouses to file to the effect that the marriage is irretrievably broken, and that it may automatically be dissolved?

MR. BURDICK [N. Dak.]: I join the opposition to the motion. Our Rules of Civil Procedure do not permit the taking of a default judgment without prima facie evidence in support of the petitioner, or the complainant. This would be at great odds with our practice, and I oppose it.

In other words, you still would have to submit some evidence in support of a petition before a judgment, even by default, can be issued, and I think it’s a good practice. We have followed it ever since I have been a judge, which is quite a few years now, and I would oppose this automatic decree.

MR. BRAUCHER [Mass.]: Mr. Chairman, the last two speakers {A46} seem to me to have misconceived what is being proposed here. As I understand it, there is an earlier section here which tells you whether you will grant the decree dissolving the marriage, and this is only one of the steps that have to be gone through, and there are other steps that have to be gone through.

So I think Commissioner Miller’s point is not well taken. This is not just a ministerial thing. There has to be a judicial proceeding to take care of the property and the custody of the children, as well as the finding of irretrievable breakdown.

Now, as I understand Commissioner Dunham’s motion, this does not go to a default judgement. This is only the case of a consent judgement, where both parties apply for the judgment; and so the remarks that relate solely to default are no apropos. I don’t think in North Dakota there would be a requirement that you have prima facie proof in the ordinary civil action if both parties stipulate that the finding may be made.

MR. BURDICK [N. Dak.]: What Commissioner Braucher says is partially true. This would not be true in the default situation; but, nevertheless, the court must make an automatic finding of irretrievable breakdown. There is nothing left as far as the marriage relationship is concerned, and the court would have to grant the dissolution; and this I would be opposed to, {A47} for the reason that the court may wish to extend, with another two or three months of counseling and further effort, to determine that this marriage has in fact broken down. The parties may say so, but they may not mean it, and this would allow the court a little bit of waiting time before having to make this final determination.

I invariably see parties come into my court completely at odds on many things, and yet in time they become reconciled, and for that reason I would oppose imposing the duty on the court to make this finding irrespective of granting the decree in other matters automatically.

MR. SULLIVAN [Mont.]: Mr. Chairman, in explanation of Mr. Braucher’s comment, I think that if you look at line four, when one of the parties has so stated and the other has not denied it, this does permit a default situation.

MR. BRAUCHER [Mass.]: I stand corrected, Mr. Chairman.

MR. FRASER [N.Y.]: I don’t see what the point of this “after hearing” is. What’s the point of having any hearing, if the court is bound to make a definite finding of breakdown? What’s the hearing for?

MR. MERRILL [Okla.]: In answer to Commissioner Fraser, may I make the point that the effect — or the fact — of the hearing and the taking of the testimony at the hearing will give the {A48} opportunity for the party who in some way, either by pressures or motives that for the time being seemed adequate to overcome his or her indisposition to the divorce, or her feeling that there was not irretrievable breakdown — that was overcome — and that he did respond to those pressures, signed the statement and so on, and now has come to the conclusion that maybe there is some chance to save things, or has come to that conclusion lately, that at the time had a feeling of despair about the marriage.

This does give the opportunity for a last minute attempt to save, to think through, to consider whether or not the breakdown really is there, and this is the reason for the hearing. This is the reason — the basic social reason, I think, why the Committee has changed its approach from the approach which we were thinking of last year, of having certain situations in which automatically the court was called upon to make a finding of irretrievable breakdown, simply because the parties either (a) had jointly at one time executed a verified document that the marriage was irretrievably broken down, or that one party had so stated and the other had not denied. It was in order to take care of the social interests where there may be a possibility — a reasonable possibility — for reconciliation, to give the court a chance to carry the matter along {A49} that far, that we came to the conclusion that we should not require an automatic dissolution on the basis simply of affidavits, moving papers, and so on.

MR. MILLER [La.]: May I speak once more in opposition to the motion?

I understand from Charlie Joiner that the Conference at some earlier meeting at which I was not a member had voted against having any sort of interlocutory decree possible under this Act. In our State, for example, we have divorce and we have legal separation, and in many instances a legal separation is granted rather than an outright divorce. Matters of custody are taken care of. Matters of preservation of property are taken care of, but this period of waiting is required in order to permit the possibility of reconciliation, and it has been my experience that in many instances there has been such a reconciliation.

Now, under this statute there is no decree of separation possible unless both parties request it, as I understand it. The only instance in which a decree of separation, rather than an absolute divorce, can be entered into is when both parties request it.

Now, that’s a far step, and I think it’s a much greater step to say that the judge has absolutely no discretion, {A50} because if you are going that far, then certainly in the instance of a childless marriage if the parties present a notarial instrument, and say, “We have solved our own property rights; we have no children; here’s our notarial agreement of irretrievable breakdown, recorded in the courthouse,” then why not permit the marriage to be dissolved, if the court is to have no discretion whatever?

CHAIRMAN READ: We have some comment from the Committee.

MR. MERRILL [Okla.]: I was really going to respond to Commissioner Miller’s impression. I think it is more proper to say that the legal separation may not be decreed if one party objects thereto, not if both parties consent. There is, perhaps, a little difference between both parties consenting and one party objecting. But otherwise, Commissioner Miller, your statement is correct in principle.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’d like to apologize to you and to the members of the house for misstating the effect. I did misspeak; and it seems to me Mr. Dunham, with whose views on this I think I associate myself, has made the wrong motion, and to correct the situation I would like to move a substitute.

The difficulty is, the “after hearing” doesn’t make {A51} any sense, and the default thing raises troubles in North Dakota, and so forth. I would like to make a substitute motion that it’s the sense of the house that on consent of both parties the finding of irretrievable breakdown should be made.

Maybe that’s not clear enough. I’d like to leave the drafting to the Committee, because I don’t think the simple change of “whether” to “that” quite does the job, and I don’t want to change the North Dakota practice on default judgements, but it seems to me where both parties apply for the divorce, the finding of irretrievable breakdown should be made.

Now, there are some factors that should be satisfied in order to grant the divorce, and I don’t want to disturb that either.

MR. DUNHAM [Ill.]: I consent to this modification of the motion, that if it is a default judgement type of situation or a case where both parties have not petitioned, then it seems to me the “whether” language is all right; but where both parties have joined in the petition it seems to me the court should be required to issue the decree of irretrievable breakdown, and I will accept Mr. Braucher’s substitute, because I think it does what I want.

CHAIRMAN READ: I think it states the issue more clearly. {A52}

MR. CUNNINGHAM [Md.]: I wonder if there is any middle position between the Dunham view and the present Committee view; and let me just throw this out as a suggestion.

It seems to me that there is virtue in the automatic finding, the Dunham view, in the case of consent, and perhaps also in the failure to appear. I wonder, though, whether a right in the court to delay for 30 days, or some period, the recording of this finding — in other words, it will require another hearing and appearance of the parties in 30 days — could be a device to take care of the minority of cases where it’s all going through too fast and there’s something that may be wrong, without getting back into the whole problem of finding grounds.

MR. BURDICK [N. Dak.]: I don’t find the substitute motion too offensive with respect to childless marriages, but where minor children are involved, I don’t believe that that automatic feature should be provided. I think that there the court should consider sort of a cooling-off period, even though the parties state the marriage is irretrievably broken, where there are minor children involved. I think the court should put the brakes on it, and if this motion is to prevail, I would certainly want to offer that qualification by a subsequent motion.

MR. KULP [Camden, N.J.]: I can’t conceive of any circumstances {A53} where both spouses consent to the entry of a judgement where there shouldn’t be at least some testimony taken and some hearing had. Too many times in my own experience I have had young people come in and talk about a divorce when their marriage has only endured for a day, a week, a couple of weeks, a month, and I just don’t feel that that’s the sort of thing where they can determine by themselves that that marriage is irretrievably broken.

It seems to me there should be some slight restraining influence, if you want to call it that, that they must at least state in a place where it’s more than talking between each other what are the factors and contentions that actually have led them to that conclusion.

I wonder whether in the complaint, although we’re well past that point, where they set up the fact that the marriage is irretrievably broken, the facts should not have been required — in the complaint itself; in other words, to take the time to sit down and analyze what are the real facts that bring it to the breaking stage. That might be helpful.

MR. DANA [N.Y.]: Mr. Chairman, as an abstract matter, if we were a legislature, we might agree that under the new concept maybe the petitioner should be able to get a decree of divorce by merely signing a paper, but I think we have to be {A54} practical and pragmatic about it. We each have to take this back to our own states, and our legislatures have thought that a divorce is something that the court does grant. If we passed the motion made by Commissioner Dunham and Commissioner Braucher, I think in each state we could get it passed, if they said, “This absolutely allows the parties to file a piece of paper,” and if we could defend by saying, “No, that is not true. The court still has to hold a hearing, and the court makes the decision whether or not it’s irretrievably broken.” I think we could achieve many of the purposes of the Act, including these novel provisions which I am in favor of, if we could say, “It’s all done under the aegis of the court, and the court must participate.”

So I think we have a pragmatic thing here.

MR. LANGROCK [Vt.]: It seems to me that we are being totally hypocritical. Again we are talking about interfering with people’s decisions as individuals. It seems to me what you are really talking about here is poor people and rich people. This is the law for the rich people in the country today. Anybody who has enough money — people who agree that they want a divorce — can get a divorce. We’re talking about a larger scope of what the law already is.

We tell two people who have worked out matters that {A55} some judge, who is going to hear the matter for fifteen minutes on a crowded docket, can say, “Well, you have to live together for another six months”, or another year or another ten years. That builds in the hypocrisy that we’re trying to get out of it. If you want the formality of a hearing, just to bring it into the court system, I have no objection, but I do not feel that a judge should be able to say: “Your marriage isn’t broken down,” when you have got two people who say it is.

MR. CALLOW [Wisc.]: I am inclined to think that there are two things that are important for this Conference to recognize, and there is a very strong sentiment by many people to believe that there should be a judicial determination. We have heard quite regularly that this bill would not be acceptable unless judicial determination was retained.

The second thing about it is that this does bring the people to the court for the purpose of evaluating in that courtroom the causes that have brought them apart. Many of us preside in these courts and see these people come to court, and it is not unusual for people at that moment of examination in the courtroom to recognize that their differences were not nearly as great as they thought they were in the past, and I’m satisfied that that courtroom appearance, the offering of testimony, though it may occur only in some cases, is such that {A56} they have suddenly evaluated the very thin problems that have kept these people apart during the period of temporary separation, and I’m satisfied that the court proceeding is very salutory in bringing people to the true evaluation of their marriage, and I would urge that this motion be defeated.

MR. BOATWRIGHT [Va.]: Mr. Chairman, Commissioner Braucher’s motion, I think, should be supported if he will add the provision for a hearing. I don’t know whether that would be agreeable to him or not.

MR. BRAUCHER [Mass.]: My motion did not deal with that subject.

MR. BOATWRIGHT [Va.]: I understood your motion to be, sir, that you wanted it automatic in the case of the two parties agreeing.

CHAIRMAN READ: As I understand the Commissioner, he wants it automatic, but he doesn’t mind if it’s automatic after a hearing. [Laughter]

MR. BOATWRIGHT [Va.]: If you are not going to provide for a hearing, then it seems to me you ought to really simplify and speed the thing up by merely authorizing the parties to file a certificate in the office of the clerk of the court — no more — saying, “We’re divorced.” I understand that’s the Russian style. [Laughter] {A57}

Now, all of us know that many of these husband-and-wife divorces are prearranged. Everybody is agreed on what’s going to be done. The property settlement is going to be made; and there can be cases, such as the young couple, in which the judge can do some good, but in 99 per cent of the cases no judge is going to be able to change them, and you can’t stand in this social force which is going on and change it by putting some law on the books.

It seems to me that it should be automatic with the provision for the court to hold a hearing if the court so desires, and furthermore, the hearing can be long or short. In some cases the hearing is going to drag on.

The gentlemen from Vermont who lost four cases uncontested — it sounds like he was practicing in one of the counties in Virginia where the judge didn’t like divorce, and everybody got turned down on divorces, and the inevitable result was that they switched over to a neighboring community and got divorces there.

So I hope that the Conference will adopt the Braucher motion with the provision that a hearing would be provided.

MR. DUNHAM [Ill.]: I would think the hearing should be in there. There is a place for the hearing in the sense of the court convincing itself: Are the parties of the same opinion {A58} as they were when they filed their petition?

What I want to be sure of is that, if the court is satisfied that the consent is there, the court shall issue the decree.

MR. ABRAMS [N.J.]: I’m sorry to disagree with my colleague from New Jersey, but I want to support the motion. I’m not one of those who have such great faith in the judicial discretion, and particularly in matrimonial matters, and I think of this in terms of some judges that we have where I come from who have a very great variety of views with respect to what constitutes, for example, cruelty.

We have three grounds for support: adultery, cruelty, and desertion, and with respect to desertion and adultery there is no discretion in the judge, if the facts are there and established. Then he must grant the divorce. It is on the ground of cruelty where you get involved in the personal relationships of the parties.

Now, when a judge in a hearing under this matter has a right to decide that, although adultery has been committed by the party, he should not grant the divorce because in his opinion it is not irretrievably broken, or if one party has moved out on the other that possibly they could get together again, and still should be compelled to live together — We had {A59} a judge in New Jersey — I won’t mention his name — who used to be called “Get ‘em in Bed.” [Laughter] We have rules of corroboration, but he wouldn’t abide by them. He needed more direct, eye-witness testimony. I don’t mean to introduce levity into this, but it’s a fact of life.

I have known plenty of judges who I wouldn’t like to have the right to decide whether a marriage is irretrievably broken, based on the testimony of the parties. If they don’t feel it’s good, the judge should not have much to say about it. And I believe that the idea that a judge can sit down and say, “Well, now, you young people should do something different” is a myth. If we are going to put a hearing in here for political reasons, and decide that we don’t want, for political reasons, to just let the parties sign a paper, like they used to do, but no longer do, in Russia, that’s one thing. But if we want to patch it politically, then I support the motion to have a hearing to establish that they are of the same mind they were when they signed the petition, but that’s as far as I think it should go.

MR. BURDICK [N. Dak.]: I would just like to add one further word. Every year in all of my counties we set up orders to show cause why certain actions should not be dismissed, and with two-thirds of these cases we ultimately dismiss them, {A60} because there has been no action taken, cases where the parties have brought a divorce case and later reconciled, went back to live together, and solved their own problem.

So a great many of these actions are started at a time when the parties are angry at each other, and eventually reconcile, and this happens so frequently that I certainly think that there ought to be some cooling-off period, and especially in the cases where there are minor children.

[Calls for the question]

CHAIRMAN READ: Before the question Judge Gibson would like to speak.

MR. GIBSON: Mr. Chairman, I would like to say a few words on this motion, because it goes to the entire heart of the Act. I think the Conference should understand the importance of the motion.

Now, if by this Act you want to allow a consensual divorce, a divorce by registration, why, now is the time to decide that fact. I don’t think many of the fifty legislatures in the states will take an Act that provides for consensual divorce, and what it amounts to if the motion carries is that you are using the court in a ministerial capacity to carry out a clerk’s function.

If you want to do that, go all the way, then. Don’t {A61} get the court involved. You don’t need a court order ordinarily to get married. Now, if you want to allow a dissolution of the marriage by a registration, enact a section to that effect. But I don’t think many of the legislatures will buy that.

If you want to camouflage it, then, by saying, well, we are using a judicial process because the parties have to file a petition, then when they file the petition the judge has no discretion. The judge has no discretion in the matter.

Now, this is based on a sound judicial discretion. The judge uses its discretion, which of course at times a judge does, or will. There is a remedy for that. But I don’t see how you can legislate on the basis that in every action a judge is going to be using his discretion. If he does, of course, he shouldn’t be a judge, and he won’t be a judge very long.

Now, to take care of one or two isolated instances in a state or a county by taking away all judicial discretion in this matter — you are making an Act, then, that is entirely foreign to the concept of divorce at this time. I will admit that this is an approach that is advocated by some groups, and some people favor it. It was considered in England, and turned down. It was proposed to the California Legislature, {A62} and turned down; and I don’t think this group should promulgate an Act saying that you can get divorced by consent. If you do, you are going to kill the Act in many states or kill the opportunity for adopting the Act.

I think the motion should be defeated.

MR. JESTRAB [N. Dak.]: I am going to recite, upon the request of a very distinguished member of this body who is unable to be here, the reason why some people feel that this should be granted without discretion on the part of the judge.

I don’t know how you want to phrase it, but the idea, I am told by this very distinguished member of this organization — the reason is that when people do not wish to live together, either one of two things is going to happen. They are going to be forced to continue the relationship against their will, in which case the relationship will become more bitter, corrosive, destructive, as time goes on, or the other alternative: They will swear to anything.

If this latter course is taken in order to get a divorce, they will spread upon the record things that will harm them in the future and may do harm to children yet unborn. It is out of a desire to keep the record clear and to avoid that sort of thing that people who espouse this point of view take the position that they do. {A63}

I bring that to you at the very special request of a very distinguished member of this body.

CHAIRMAN READ: The motion has been called for, and the motion is for the sense of the house on the proposition that Section 305 be amended to provide that a marriage shall be found irretrievably broken when both parties consent after hearing.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion loses by about 53 to 30.]

MR. WILBERT [Kans.]: I rise with a great deal of humility, because I realize that the Committee has labored hard and long, and I always support committees, but I have to enter a special appearance here because Kansas has just recently enacted a part of a divorce law in regard to subsection (2) of subsection (b), and this is where the court makes a finding that it’s irretrievably broken, and then we come to the “or” part of it, which means that he’s probably in doubt.

Now, if he’s in doubt, he can adjourn it for 30 or not more than 60 days, and what I’m talking to is “and may suggest to the parties that they seek counseling.” We have got an almost word-for-word statute in Kansas now that says this, and the parties may petition, or the court may send them to a counselor, if there is a counselor in that county. {A64}

Well, you use the word “shall” at the beginning, and you say he shall do two things; but then you put the “may” part in, and my only plea to the Committee is: Let’s keep the “shall” in, and have it that the court shall require that the parties seek counseling.

The reason I say that is that I have only had one case — and I just want to give this to the Committee from my one experience — but lawyers are adversaries, and I’m afraid that they are not always absolutely truthful with the court because of their adversary position, and I felt my party could get together with the other party if they would seek the counselor.

The other lawyer said: No, they will never get back together again. I suggested that they meet that evening at 7:30 in an office with just some friends, and after that evening — the next morning — they both said they were going back together again.

But what bothered me was that the attorney on the other side said: No, these parties will never be reconciled. My party will never go back. But he wasn’t intellectually and, I don’t think, even judicially honest with the court. But my point is that he said: No, I don’t believe in this conciliation thing. It’s a lot of hooey. {A65}

Now, if you use the “shall” down at this point — and the judge is in doubt, or else he wouldn’t use subparagraph (2) — then it looks like he ought to make them go to some kind of counselor. I may be wrong. I do not claim great wisdom. But sociologically, if we are going to make divorce easier, I think we ought to at least make them go to a counselor, and make it “shall” if the court is in doubt under sub (2).

That’s my only point, and I want to plead not guilty to having microphonitis.

CHAIRMAN READ: Is it your point that the judge shall suggest counseling, or shall require it?

MR. WILBERT [Kans.]: Shall suggest. Well, no — I’m sorry. You said it right: require. I’m sorry about that, but that’s the way I feel about it. What I want to do is to make the judge do it, is what I’m saying.

CHAIRMAN READ: To require counseling in all cases?

MR. WILBERT [Kans.]: Because I don’t like — if you are going to let them get loose, you ought to make them have counseling before they do.

CHAIRMAN READ: Do you want to make that as a motion?

MR. WILBERT [Kans.]: No, I’m not going to burden you with that. If you don’t think it’s any good, just kick it out.

MR. MERRILL [Okla.]: And for the benefit of the Committee of {A66} the Whole let me say — and also Commissioner Wilbert — that we recognize the force of the consideration that he advances. On the other hand, we have been faced with a strong constitutional argument that compulsory counseling may well be unconstitutional under the principles, at least, that lie back of some recent decisions. There has been some very strong debate on that issue that has gone on in the legal journals, and we felt that it was wise, therefore — plus another thing, that a lot of our advisors have urged that compulsory counseling is not in the best interests of the parties; that the best thing to do was to give the folks the idea that you ought to think this over, and you ought to get counseling; and this was back of our feeling.

We will think it over in accordance with the chair’s statement, but I do think that we should say to the Committee that we have given a great deal of consideration to it already, and for the reasons stated we came up with the draft in the form that it now is.

MR. DOWNS [Mich.]: Mr. Chairman, I would like to make a substitute motion on 305 (a). I know it’s about noon. I’ll hold it until afterwards; or if you want, I can just make it, and you can discuss it after the noon recess.

MR. CALLOW [Wisc.]: What’s the substance of it?

CHAIRMAN READ: I think, because of the reports we {A67} have coming now, we will have to take that up tonight.

MR. CALLOW [Wisc.]: Can we just have the substance, so we can be thinking about it?

MR. DOWNS [Mich.]: Yes. The substitute would be in 305 (a), after the word “hearing” — “with both parties personally present, make a finding that the marriage is irretrievably broken if there are no children under 18 and no pregnancy.”

CHAIRMAN READ: You will renew that this evening?

MR. DOWNS [Mich.]: Yes.

MR. LEFLAR [Fayetteville, Ark.]: Mr. Chairman, I might for the same purposes make a very quick suggestion that the Committee could think over and perhaps avoid further discussion later, in reference to Section 305 (b) (2), lines 11 and 12. Joe Barrett and I were discussing this together, and he was going to make the point, but he had to leave.

It is in reference to the time limitation which is set there, not less than 30 or more than 60 days, and particularly “or more than 60 days”. That limitation would put the judge in a very limited strait jacket in reference to the time within which he must act. There might be circumstances in which the action could not be taken within 60 days, and there might be situations in which a little more than 60 days would be useful for purposes of securing outside advice or bringing the parties together or helping them in any way; and the thought that we had was merely that the 60 day outer limit might be too binding. There might be situations in which an unlimited amount of time, as far as that is concerned, would be more advantageous for all purposes.

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

CHAIRMAN READ: You have heard the motion.

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

* * * * * * * * *

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Colony Motor Hotel, Clayton, Missouri

Monday Evening, August 3, 1970

Mr. Harold E. Read of Connecticut presiding;

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

CHAIRMAN READ: Continuing with Section 305, is there anyone who cares to continue with Section 305?

MR. COWEN [Athens, Ga.]: Mr. Chairman, with respect to 305, (a) I move that we add an additional sentence, to this effect: If after hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, a presumption is created that the marriage is irretrievably broken.

CHAIRMAN READ: Is there comment on the motion?

MR. SULLIVAN [Boise, Id.]: Let’s hear it again.

MR. COWEN [Ga.]: I will reread the motion. The intent is that if both parties are present, both parties are represented by independent counsel, and both parties state that the marriage is irretrievably broken, there is a presumption that the marriage is irretrievably broken.

MR. WALSH [St. Paul, Minn.]: Is there any way to rebut the presumption?

MR. RUUD [Austin, Tex.]: Evidence. {70A}

MR. WALSH [Minn.]: Who would ask for it? The judge?

CHAIRMAN READ: There is provision for counsel for children. I think counsel for children could present evidence to rebut it.

MR. RUUD [Tex.]: Not the way it is drafted now.

CHAIRMAN READ: Excuse me. I presume that it would be the responsibility of the Court to seek the evidence, then.

MR. WALSH [Minn.]: Thank you.

CHAIRMAN READ: It is the sense of the Committee, I think, that a motion of that magnitude might lie on the table until we have a few more Commissioner here. When we do have a few more, Commissioner Cowen, I think I will ask you to read it once or twice again, and see if we can proceed.

Are there other comments on 305?

MR. DAGGETT [Baton Rouge, La.]: Mr. Chairman, we have in Louisiana a separate thing that the Court may order of a legal separation which serves a very worthwhile purpose. This, on consideration, only calls for a voluntary separation agreement, which takes care, of course, of the problem of property settlements, the partition of community assets, the custody of children. Here the advantage, however — and I’m not making a motion, but would simply like the Committee to consider that it be at least a permissible alternative order by the Court from a final {71A} divorce.

We have in Louisiana a large population percentage-wise of Catholics and Episcopalians who, for philosophical or moral reasons, do not believe in divorce at all, and many of the Catholic lawyers will refuse to take a divorce case, thereby depriving the population of adequate, proper legal representation. Yet they will provide for something less; namely, the legalization of living separate and apart, the handling of property problems and custody problems. So that I at least would like for the Committee to give serious thought to something else other than the one solution of a final divorce action.

Have I misread the Act?

PROFESSOR LEVY: 301 provides for a decree of legal separation, but both parties have to agree.

MR. DAGGETT [La.]: What about if one party is willing to sue for the separation? Has any thought been given to the possibility that one might be legally divorced — by which I mean he can get a new license to remarry — where the other one could have just a separation, thereby satisfying his religious, moral and philosophical scruples?

At least I’d like the Committee to consider it and give it some thought, anyway, as to an alternative possibility. {72A} We are talking, really, about a third of the persons who marry, at the most, who divorce, so we’re not concerned about the two-thirds who make it work. In the one-third where it doesn’t work we do have a definite segment which would like something in between.

PROFESSOR LEVY: There is in 301, as I have indicated, a separation on the finding of irretrievable breakdown where both parties want it. We did that because we didn’t like the idea of permitting one person to remarry while the other person remains married.

For another thing, we thought it unfair for the person who wants to remarry, if he or they can prove irretrievable breakdown, to be deprived of a divorce simply at the whim of the other party. And, finally, our advisors suggested to us that the religious principle at stake has to do not with divorce at all, but with remarriage, and under those circumstances the Committee felt that it was appropriate for the law to leave it to the religious fervor or the conscience of the person who felt that way to keep from remarrying, rather than to prevent the other party from divorcing and remarrying.

MR. NEEDHAM [Providence, R.I.]: Mr. Chairman, this point that was raised, again, as the good gentleman from Louisiana says, {73A} presents a problem in his state, the same as it does in mine. We are, perhaps, the only state in the Union that is 65 per cent of one religious persuasion. I think that once you establish a program where a divorce becomes a matter of right, you eliminate the concept of fault, and if a petitioner goes into Court and says, “I would like to have a legal separation; the marriage is irretrievably broken,” and the respondent, or the other party, says, “Oh, no, it is not, but if it is, I want a divorce, not a legal separation” — and then we say, “Well, this party has a right to the divorce, even though they were denying that it was irretrievably broken” — in my jurisdiction at least, we have three possibilities.

We have a divorce from the bonds of marriage; we have a mensa et thoro petition, which is a divorce from bed and board; and then we have a third proceeding which is a separation, or separate maintenance, without the commencement of divorce proceedings, and at least in my jurisdiction we are going to have considerable difficulty if we don’t have some way that those who have a certain religious persuasion, seeking the intervention of Court, can be protected, being the person who went to Court in the first place, in holding a status of separation rather than dissolution. There still are people in this country who believe that marriage was intended {74A} to last until one of the parties died, and this presents a rather serious social problem in the State of Rhode Island, and I just throw it out along with what the other gentlemen have said. I think it’s a serious social problem, and it’s not only the Catholic Church that believes that divorce is — your religious advisor is correct in advising that excommunication, or the sanction of excommunication in the Catholic Church is only administered to those who remarry, but there is the religious tenet in those areas where divorce — the elements of scandal and the evil to be done in a moral sense by a Catholic seeking the intervention of a Court in an attempt to destroy the bonds of marriage, which he takes as a serious obligation and which he believes as a matter of faith does persist until one dies — there is a certain social and moral obligation by way of not giving scandal to his neighbors and friends, and in a community where 65 per cent of the population espouse the same belief, this can be a serious problem.

I don’t know what it would be in another community, but I suggest there is a very real issue here.

CHAIRMAN READ: Thank you.

MR. MERRILL [Norman, Okla.]: Mr. Needham, were you present, may I inquire, last year at the debate in which we were told by Commissioner Z’berg of California that there was no opposition {75A} from the Roman Catholic religion or other religions, for that matter, to the concept of irretrievable breakdown, and the California statute, which does not make provision for a lasting divorce a mensa et thoro—

MR. NEEDHAM [R.I.]: I would say, Commissioner, first of all I was, unfortunately, unable to attend in Dallas. However, with the great rejuvenation and ecumenical movements in the Catholic Church in recent years, I suggest that we may find the leader of a pastoral group in California saying that there is no social — or there is no basis for objection.

In Rhode Island we have, perhaps, one of the most stringent of bishops throughout the States, and we do have a very strong leader in this area. Our procedure in Rhode Island as it relates to commencement of separate maintenance, without starting a divorce petition, was started several years ago in order to eliminate the fact that a Catholic would have to start under our proceeding a divorce action, although it was mensa et thoro, because the word “divorce” was odious to not only the ministry but also was odious to some Catholics who wanted to have a separate maintenance, and so there was a separate statutory proceeding.

I think, personally, strictly on the moral issue involved and in a philosophical way, I personally do not {76A} believe that there is any ecclesiastical sanction to a Catholic seeking a divorce if the marriage is irretrievably broken, and in order to protect the property rights of the particular father and mother, or the various spouses; but this is a personal opinion rather than anything attempting to say that any diocese or any branch of the Catholic Church holds that way.

MR. MERRILL [Okla.]: Well, we do appreciate the problem that Commissioner Daggett and you have raised, but we have also given a great deal of thought and discussion to it over the three years that this has been pending, and it also, of course, has received discussion in California and in Iowa, where I’m sure there is a considerable Catholic strength and considerable Lutheran strength, and of other denominations, and I feel that this does not necessarily pose the obstacle that perhaps you feel.

MR. NEEDHAM [R. I.]: I appreciate your remarks. I suggest it doesn’t propose the obstacle in the absolute. It may pose an absolute in some jurisdictions to adopting it, however.

MR. MERRILL [Okla.]: Thank you.

CHAIRMAN READ: Will you comment further on 305?

MR. BARRETT [Jonesboro, Ark.]: Mr. Chairman, I’d like the permission of the Committee of the Whole to raise a point on 305 (2). I {77A} don’t like to raise it tonight, when we have a poverty of attendance at this session.

My colleague, Dean Leflar, raised it just before noon for the consideration of the Committee, and I have since learned that the Committee has already considered it, and has rejected the thought being expressed. Consequently, I want to raise it in order to have the sense of the house as to whether or not Section 305 (b) (2) hamstrings or puts in a strait jacket the trial judge when there is an adjournment. And if that has already been considered by the Committee and rejected, as I understand it has, then I want to ask to have the views of the house, the sense of the house, on that hamstringing, but I want to do it when the Commissioners are present in such numbers that I feel that we would have a real and full expression from the Committee of the Whole.

May I have that privilege, say, tomorrow or the next day, when this comes up again?

CHAIRMAN READ: I think we should do it tonight, but we could lay it on the table until the cocktail hour is over. Within an hour I think people should be beginning to come back.

MR. BARRETT [Ark.]: May I bring it forth at that time?

CHAIRMAN READ: Yes, I’ll put you directly behind Commissioner Cowen’s motion. {78A}

MR. SULLIVAN [Id.]: Mr. Chairman, I apologize for getting in here a little late. I would ask if 305 (a) still reads the same as it does in the draft which we have.

CHAIRMAN READ: I believe it still reads the same way, yes.

MR. SULLIVAN [Id.] : I’d like to make a motion. This has been debated at considerable length in the Committee and in the Section. I’m sorry that Miss Mentschikoff isn’t here to present the proposition so much more eloquently than I can, but I would like to move that 305 (a) be amended to read, in line 4, “the court shall, unless disputed at the hearing, make a finding that the marriage is irretrievably broken”.

In other words, this is just a finding of fact. If both parties agree by stipulation that this fact exists, or if the fact is undisputed, then the Court must find that this is a fact.

I think when it was discussed in the Section meeting on Friday most of the members of the Section agreed that under those circumstances if the Court should find it is not irretrievably broken, that that is error, and on appeal would automatically be reversed. If that is true, where the parties have stipulated by agreement or there is no evidence to the contrary, I think we should say the Court shall so find. {79A}

Now, there was considerable discussion, if you recall, that the judge should still have some discretion in making a finding in the absence of any proof whatsoever. I think this is wrong, and I think we should say so.

I agree that the judge, maybe, should have discretion in matters where his discretion is properly exercised, but this is not without precedent. Under the Federal Rules of Civil Procedure, which have been, I think, adopted by most of the states, if you have a suit on a promissory note, and there is a default, the clerk enters the judgement. So I think we have to say in this Act that the Court has discretion to find. Otherwise, in the absence of any proof whatsoever, it’s ridiculous. I think we should say exactly what we are doing.

MR. DANA [New York, N.Y.]: Mr. Chairman, I would like respectfully to speak against the suggestion just made, on two grounds.

First, it is the same suggestion which was made this morning and voted down, and I would like to suggest, as I did this morning, the reason why any similar motion, I feel, should be voted down, and that is that if we can get the Act in its present form adopted, it will be tremendous progress, because 95 or 98 per cent of the judges when they receive this petition uncontested will, despite the word “whether”, sign the petition and agree that the marriage is irretrievably broken. {80A/81A} If we as a Conference are greedy and try to go after that last 2 or 3 per cent where there may be an arbitrary judge or a judge who is opposed to divorce — if we are greedy and go after that last 2 or 3 per cent by changing “whether” to “shall”, we will fall flat on our faces when we all reach our own state legislatures, because there will be thousands of people in every state who would then be able to point to this Section as not only novel, but so novel that it permits divorce by agreement.

We have to continue, in my view, having it cast in the form of permission being asked of the Court, so we can tell our legislatures that we are asking only for a slight change in the law, but it’s still under the aegis of the Court.

So, to summarize this suggestion just made, I feel it’s essentially what was before us this morning.

CHAIRMAN READ: Thank you, Commissioner.

MR. JENNER [Chicago, Ill.]: Mr. Chairman, there is more than a quorum at present. So, Mr. Chairman, would you now conduct the meeting from this point forth without reserving matters?

CHAIRMAN READ: I am about to do so.

Commissioner Sullivan, it seems to the Chair that Commissioner Dana’s remarks are well taken, that your motion is almost identical to what was voted down this morning, and I think I will rule your motion out of order. {82A}

MR. SULLIVAN [Id.]: May I make one statement, Mr. Chairman?

CHAIRMAN READ: Yes, sir.

MR. SULLIVAN [Id.]: It is somewhat different, because my motion, I think, solves the problems that were raised by Commissioner Ruud. I think the phraseology of my motion solves the problem that concerned Commissioner Ruud, at least as expressed at the Section Meeting; that is, that the parties might, in an agony of controversy, both say: “Well, sure, let’s get divorced.” And so they sign it and then they repent at semi-leisure.

So if at the hearing they dispute it, at least they have had a cooling-off period, and I think that solves the problem that was expressed by Commissioner Ruud, and that is why I think the motion which I have made is substantially different from the one which was voted down earlier today.

CHAIRMAN READ: Commissioner Cowen, would re-state your motion?

MR. COWEN [Ga.]: Mr. Chairman, it seems to me that the motion that I made earlier is a middle ground which might prove acceptable to all concerned. The motion was, and is: If at the hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, {83A} a presumption is created that the marriage is irretrievably broken.

Now, I take that to mean that after unusual circumstances the judge will act upon the rebuttal of the presumption, but as in the present case of an uncontested divorce, he has to satisfy himself that the grounds do exist, and therefore he would have the power to make further inquiry if he so desired.

CHAIRMAN READ: Will you remark on the motion?

MR. CALLOW [Waukesha, Wisc.]: I’d like to be heard very briefly.

I can only suggest that this Conference decided that the 10-day waiting period for marriage was too long. The Committee has reconsidered, and will ask you to consider three days as a reasonable waiting period, hoping that the sense of the house is that there be a lesser amount rather than bracketing the time to wait.

And if we consider that marriage can be entered into rather spontaneously, and if we permit people to just walk away from their marriage after a very brief time, we have not followed what we are accepting as the purpose of this Act, which is to strengthen and preserve the integrity of marriage and to safeguard meaningful family relationships, and I think that it would be unfortunate if we were to modify the Act as {84A} drafted by adopting this motion.

MR. DAVIES [St. Paul, Minn.]: Mr. Chairman, I’d like to suggest that Dean Cowen’s amendment does solve to a great extent the problem of the arbitrary judge whom Peter Langrock deals with, and permits the parties to get the divorce they need, but it does serve to protect the right of the judge to look at the circumstances, and does guard against the intoxicated divorce situation, and does bring the parties to Court in circumstances which will prevent a hasty filing, and so on, that some people have been concerned about.

It seems to me that he did characterize it as middle ground, and it does meet the objections that I have heard on all sides.

MR. VON HERZEN [Los Angeles, Calif.]: Mr. Chairman, Gentlemen of the Conference, it seems to me that this would become known as the “lawyer’s amendment.” [Laughter] I believe that in so far as making the Act something that is palatable to the legislatures, the reverse would happen, and I believe that, as the Judge has indicated, it would make the Uniform Act very difficult to pass. I would recommend against it.

CHAIRMAN READ: Are you ready for the question?

MR. DAVIES [Minn.]: I don’t think the amendment compels each party to have a lawyer, but if they both do, then it helps {85A} create the presumption, but doesn’t stand in the way of 99 per cent of the judges of the country with one lawyer. I think it just deals with the tough situation of the unreasonable judge who just doesn’t like divorce.

CHAIRMAN READ: The question is on the motion to add to Section 305 (a) a sentence reading: “If at the hearing both parties are represented by independent counsel and state that the marriage is irretrievably broken, a presumption is created that the marriage is irretrievably broken.”

[The motion was put to a voice vote.]

CHAIRMAN READ: The Chair is in doubt.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion is lost, 43 to 32.

We will now take from the table Commissioner Barrett’s motion, which is — Would you like to restate it, Commissioner?

MR. BARRETT [Ark.]: Mr. Chairman, I want the sense of the house directive to the Committee as to whether or not you put the trial judge in a strait jacket under 305 (b) (2). As the Section now reads, an adjournment cannot be less than thirty days nor more than more than sixty days, and I construe it as being mandatory, the effect of which would be in a large area of the continent of the United States, that the trial judge may be {86A} engaged in a lengthy trial on that sixtieth day, and he would have to adjourn it and take this up and then go back to his case. I’m sure that’s not the intention of the Commissioners here, whatever may have been the intention of the draftsmen.

What I’m saying is that you should not under those circumstances put the trial judge in a strait jacket, that he must dump everything else on the sixtieth day and reconvene this hearing. It can go on his trial calendar. The effect of this Section, as I read it, would be to completely destroy the ability of the trial judge to control his trial calendar.

So my motion is that the sense of the house is that the trial judge should not be in that strait jacket. What language the drafting committee uses to effectuate that result, I am not concerned.

MR. GIBSON [Kansas City, Mo.]: Commissioner Barrett, would it satisfy your objection if language were put after 60 days there, “or as soon thereafter as the case may be reached on the Court’s calendar”?

MR. BARRETT [Ark.]: That would be all right. The way I read it, you completely put the trial judge in a strait jacket.

MR. GIBSON: I think that should be in there, myself. I don’t know what the Committee thinks.

MR. BARRETT [Ark.]: Thank you, Judge. I was sure you would {87A} feel that way.

MR. GIBSON: I think the Committee accepts that suggestion of Commissioner Barrett.

MR. DOWNS [Detroit, Mich.]: Mr. Chairman, I submitted a motion before our noon recess. Since that time I have reworded this to be the sense of the Committee, that with the permission of the body I would like to withdraw my motion and present this in a two-sentence statement. [Passing a paper to Mr. Hellring]

Mr. Chairman and Members of the Conference, this applies to Section 305. I’ll read the two sentences, and then, if I may, speak very briefly to it.

First, there must be personal appearance by the parties at a hearing, so the Court can determine if the parties are still convinced the marriage is irretrievably broken.

Second, if the Court so determines, and there are no children under eighteen, then the Court shall find such marriage irretrievably broken.

I move that this be the sense of the Committee of the Whole regarding Section 305.

Mr. Chairman and Members of the Conference, if I sensed the feeling of the body this morning, I felt there were two things that were of concern to the Commissioners. The first was to be sure that any declaration of divorce, or {88A} dissolution of marriage, be done with court supervision, and not merely by filing a statement with the court clerk. This would provide that if people originally filed a petition or complaint for dissolution of the marriage, then at a court hearing subsequently the judge would have the opportunity to determine if the people were still of the same mind, and it would avoid the quickie, the one done under intoxication, permitting court review, and both individuals would need to be there so the judge could be sure that this was a voluntary action.

Secondly, this would only apply where there were no children under eighteen. As a practical matter, I think this would be applicable where young people marry without thinking it through too thoroughly, and have not yet had children. The other one would be those marriages of some duration where the parents continue the legal marriage until after the children are through high school, and then make the decision for a dissolution of marriage. This would not apply to a contested case. It would only be applicable if both parties to the marriage voluntarily came before the judge, assured him that they did desire the dissolution, that it was irretrievably broken, and there were no minor children under eighteen.

I believe this is a compromise, and, I hope, does {89A} represent what I think was the thinking of the body. Thank you.

CHAIRMAN READ: I take it, gentlemen, that this is the same proposition we have been debating, except for a consideration of the existence of children under eighteen and the requirement of a personal appearance, and I only mention that to state that I hope we can dispose of it without repeating all of the debate that goes with the basic issue.

MR. DOWNS [Mich.]: That statement is correct.

MR. BURDICK [Williston, N. Dak.]: I would have no objection to that motion, and I think it is pretty much the sense of the Committee of the Whole, but I would like to get rid of that early time for the court hearing, the second hearing in 305, not less than 30 or more than 60. I don’t know why you put in the 30-day minimum period. The parties may come in ten days later and say, “Judge, we have tried to get together and we just can’t get together.”

I see no reason for the minimum period. The 60- or 90-day period would have some meaning, but I don’t see any sense to the 30-day period.

MR. MERRILL [Okla.]: I would like to ask one question of Mr. Downs to clarify his motion.

Now, the question is this. He speaks of the personal {90A} appearance by both parties as the Requirement No. 1. May I inquire what he envisions is the effect of this proposal on the situation which so frequently occurs where the other party to the marriage just isn’t there, and has been served by mail, and he just doesn’t bother to appear? Would this preclude the Court acting there?

MR. DOWNS [Mich.]: This would not preclude the Court acting, Mr. Chairman. This is a very modest proposal. It’s not intended as draft language and, if adopted, I would certainly expect the Committee to prepare the draft language.

MR. MERRILL [Okla.]: That’s what I wanted to know. I think we could get around that.

MR. DOWNS [Mich.]: This would apply only where both parties voluntarily determine the marriage is irretrievably broken, there are no children under eighteen, and the Court would have both parties physically present, so that the Court could be assured this was truly a voluntary action. This would not apply when one party is out of the jurisdiction, or a contested case.

MR. CALLOW [Wisc.]: I’d like to appeal to the Chairman to determine whether or not this is in order. It seems to me this is so consistent with that which has been considered by the house that it’s out of order. {91A}

CHAIRMAN READ: I ruled that it is in order, in that it raises the issue of children under eighteen and personal appearance.

[The question was called for.]

CHAIRMAN READ: The question has been called for.

MR. SPRADLING [Cape Girardeau, Mo.]: Speaking against the motion—

CHAIRMAN READ: The motion has been called for.

MR. SPRADLING [Mo.]: Well, is there to be no debate on the motion?

CHAIRMAN READ: No further debate.

MR. SPRADLING [Mo.]: Well, a point of order, Mr. Chairman. This is a new motion.

CHAIRMAN READ: State your point of order.

MR. SPRADLING [Mo.]: My point of order is that you cannot close debate by a simple call for the question. If you want to move the previous question, why, that is different; but this is a brand new motion, and the Chair has ruled that it’s a new motion and not out of order, so I think it’s entitled to some debate.

CHAIRMAN READ: The Chair requests that you limit debate, since the sensitive issues are identical; but proceed with your statement.

MR. SPRADLING [Mo.]: Well, if you have ruled that they {92A} are identical, I won’t have to say any more, but I thought you ruled that they weren’t.

The point I wish to make at this time, being a member of a state legislature and conferring with Commissioner Dana, is that we’re just having a recapitulation of the same thing, ringing on the same theme. This is slightly different, but what we are doing is making it possible to have divorce by agreement and have it ratified by the Court, and compelling him to do so under most circumstances. And while we sit here as Commissioners trying to develop laws for the benefit of our home states and our legislatures, and while I would agree, myself, personally, in principle that what you are trying to do is perfectly all right, and I would go for it, I can assure you that I agree with Commissioner Dana that you haven’t got a chance of passing it, and we have spent all this time working on a perfectly good bill with a chance that it will never go through, and then what have we accomplished for our constituents?

So I think in the interest of prudence and wisdom and knowing that we are not plenary here, but only advisory to state legislatures, we ought to vote this motion down.

MR. DANA [N.Y.]: I would like to supplement that by saying that the present motion really has two parts. The first asks that it be stated in this Section that both parties be present; {93A} the Section as it presently reads says “upon hearing”.

Now, I’m not a trial expert, but I would suppose that either both parties were there, or one was there and the other was represented by counsel, or both represented by counsel. No judge is going to hold a hearing talking to himself in his own room. So the favorable color of the first part of the motion — namely, that you have got to have the parties present — I think tends to try to influence the Conference to vote in favor of the second part of the motion, which I believe has been voted down this morning.

CHAIRMAN READ: I was about to separate them.

MR. DANA [N.Y.]: Well, I believe that “upon hearing” would be interpreted as requiring that the parties both be present or represented.

CHAIRMAN READ: The first part of the motion is that there must be a personal appearance by the parties at a hearing, so that the Court can be convinced that the marriage is irretrievably broken.

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

CHAIRMAN READ: The second amendment is, if the Court so determines, and there are no children under eighteen, then the Court shall find such marriage irretrievably broken.

[The motion was put to a vote and was lost.] {94A}

MR. HILLMAN [Providence, R.I.]: Mr. Chairman, may I go to another part of 305 (b) (2) that concerns me somewhat?

I thought Commissioner Barrett was raising it, but apparently his objection doesn’t go as deeply as mine does. We have provided that when one party objects to the divorce, the trial justice shall adjourn the matter for another hearing not less than 30 nor more than 60 days later. But what happens after the 60th day, whether it’s the 60th day or the 61st, or whatever? According to lines 13 and 14, “At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.” I suggest that this is putting the judge in a stronger strait jacket than Commissioner Burdick suggested. May I hypothesize this case?

The husband and wife come into Court and the husband says it’s irretrievably broken. The wife says: “No, the trouble is his alcoholism.” The judge continues for thirty days and directs the husband to seek assistance with his problem of alcoholism. After thirty additional days, or sixty additional days, they again appear before the Court. The alcoholism clinic reports that, yes, he is making progress, and there is some hope. As the statute is presently worded, the judge must at that time make a finding that the marriage is or is not broken. If he finds that it is not, because {95A} there is hope, they have to start all over again.

I suggest that there should be some opportunity given to the trial judge to give a further continuance beyond the sixty days, if he feels that it would be helpful.

MR. LANGROCK [Middlebury, Vt.]: I think I agree with much of what Commissioner Hillman has said. I’m willing to concede the Conference’s position as to 305 (b) (2), that we do feel there is a role for judicial discretion in the situation of the determination of irretrievable breakdown. The point that bothers me is, while I think we have got to have a longer period of time in which the judge may work — what I’m worried about is the perpetual situation, where one party wishes a divorce and is not going to live with the other party, and I think there should be some period of time where eventually the Court recognizes as a matter of law that this marriage is irretrievably broken.

I would, therefore, move to amend Section 305 (b) (2) so that it would read as follows: “adjourn the matter for another hearing or hearings not more than a year later, and suggest that the parties may seek counseling. At the adjourned hearing — appearance — the court shall make a finding upon the request of either party that the marriage is irretrievably broken.” {96A}

The basic substance of this motion is that it gives the Court one year to work with the parties, and at the end of this period of one year, if the Court is not successful at this point, then the recognition of the fact that the marriage is irretrievably broken is a judicial fact.

MR. BURDICK [N. Dak.]: I’d like to ask Commissioner Langrock if he will accept an amendment merely stating “if the parties have not reconciled”.

MR. LANGROCK [Vt.]: That’s quite all right.

MR. BURDICK [N. Dak.]: And with that additional language I would support the motion.

CHAIRMAN READ: The question is on the amendment to Section 305 (b) (2), providing for, in the case of an adjournment hearing, a hearing or hearings not less than 30 days nor more than one year thereafter—

MR. LANGROCK [Vt.]: Just not more than one year. [Passing a paper]

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

MR. VON HERZEN [Calif.]: In response to Mr. Wilbert’s suggestion this morning, I suggest that we delete the word “may” in line 12, because, actually, it really is redundant. In that paragraph the Court can do whatever it wants to and whatever the facts indicate, and the word “may” really doesn’t {97A} do one single thing except weaken the situation from the standpoint of future consideration by legislatures.

CHAIRMAN READ: I believe the Committee accepted that change this morning, Commissioner.

MR. BURDICK [N. Dak.]: I would like to inquire if the Committee accepted my suggestion to delete that minimum 30-day period in line 11?

CHAIRMAN READ: I believe the Committee did not.

MR. BURDICK [N. Dak.]: Then I move that the words “less than 30 or” be deleted, so it would read “not more than 60 days”.

CHAIRMAN READ: Will you remark on this motion?

MR. CALLOW [Wisc.]: And as soon thereafter as the Court calendar would permit.

MR. MILLER [Baton Rouge, La.]: I would think we ought to have at least some minimum period for an effort at reconciliation. Thirty days is certainly a short enough minimum period to at least accord the opportunity of reconciliation.

MR. BURDICK [N. Dak.]: My point is that it certainly strait jackets the judge if something has occurred within the 30-day period. As far as notice is concerned, the ordinary five days plus travel time protects the adverse party, as far as notice is concerned; but if the parties come in ten days afterwards and convince the Court — {98A}

MR. HELLRING [Newark, N. J.]: I don’t think the Committee has any very strong feelings about it. In our thinking so far, it seemed to us that, as Judge Miller pointed out, probably thirty days was the minimum that they could need for any sensible attempt at reconciliation, so we put in that minimum. But would you be willing to have the Committee consider it, or would you like to have a vote on it?

MR. BURDICK [N. Dak.]: I understood the Committee would not consider it. I would appreciate it if the Committee would consider eliminating it. If not, I wish to make a motion.

MR. CALLOW [Wisc.]: I think you should stick with your motion.

MR. BURDICK [N. Dak.]: My motion is to delete the minimum period, so that the Court would have flexibility from the time of the original hearing to the date when he has the subsequent hearing.

CHAIRMAN READ: You have heard the motion.

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

CHAIRMAN READ: We will proceed with Section 306.

MR. GIBSON [Mo.]: I will now proceed with the reading of Section 306. I probably should announce before reading this that this part of the Act is not contained in your book, but there is a separate sheet on the table that contains the {99A} changes made by the Committee. This was passed out yesterday.

SECTION 306. [Separation Agreement.]

(a) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support or visitation of their children.

(b) In a proceeding for dissolution of the marriage or for legal separation, the terms of the separation agreement are binding upon the court unless it finds, after considering the economic circumstances of the parties shown by the separation agreement, except terms providing for the custody, support and visitation of children, any other evidence produced by the parties, and any evidence the court may order the parties to produce, that the separation agreement is unconscionable.

(c) If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and {100A} maintenance pursuant to Section 307 to 309.

(d) If the court finds that the separation agreement is not unconscionable as to support, maintenance and property,

(1) unless the separation agreement provides to the contrary, the terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or

(2) if the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.

(e) Terms of the agreement set forth in the decree can be enforced by all remedies available for the enforcement of a judgement including contempt but are no longer enforceable as contract terms.

(f) Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.

CHAIRMAN READ: Will you comment on Section 306?

MR. MILLER [La.]: Mr. Joiner is speaking with the Reporters {101A} about what may be an error — an unintentional error. As I read—

CHAIRMAN READ: If I could interrupt you, Commissioner, we are about to point out an error, I think.

MR. MILLER [La.]: Because as it now reads, it would take away any discretion of the Court in matters of custody, support, or visitation, provided only that the spouses had agreed; and that’s the very error—

MR. CALLOW [Wisc.]: We recognize the error.

MR. GIBSON: There is an error in the draft I just read as to the placement of the interlineation on line 11. That phrase “except terms providing for the custody, support and visitation of the children,” should be inserted in line 9, after the word “agreement”, so that (b) starting on line 8 would read:

In a proceeding for dissolution of the marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support and visitation of the children, are binding upon the court . . . . . and so forth.

CHAIRMAN READ: Will you remark on Section 306?

MR. McKUSICK [Portland, Maine]: Can I inquire what is meant in lines 10 and 11 by the words “shown by the separation agreement”? {102A}

Does that simply mean that the judge should consider as evidence the recitations in the separation agreement as to the circumstances of the parties?

MR. MERRILL [Okla.]: It is, I think, Commissioner, one of the items to be considered by the Court. There are other items as well.

MR. HELLRING [N. J.]: May I suggest to Commissioner McKusick that it isn’t so much a question of the recital but, you see, at the time when the Court is making that consideration — is considering it — it’s after the separation agreement has been entered into, and the question before the Court is whether it’s unconscionable, and so the Court has to consider the economic circumstances of the parties as a result of the terms of the separation agreement, and that’s what I think the Reporters were trying to describe in that language.

Now, maybe some better language could be used for it. None of us on the Committee, I’m afraid, picked it up as you have.

MR. McKUSICK [Maine]: Having accepted that explanation, then I’m troubled by whether the other evidence produced by the parties or requested by the Court simply relates to the economic circumstances of the parties, and couldn’t go to other relevant factors, such as duress by one party or the other, or {103A} misrepresentation or mistake as to the assets of the other party.

I would think it would be better to say, “after considering the economic circumstances of the parties and any other relevant evidence produced by the parties or ordered by the court to be produced”.

MR. HELLRING [N. J.]: Would you be satisfied if the Committee were willing to give your suggested language consideration?

MR. McKUSICK [Maine]: Entirely so, yes.

MR. HELLRING [N. J.]: Some of the members of the Committee want to say you, Commissioner McKusick, that they like your language already.

PROFESSOR KAY: I want him to write it down.

MR. JENNER [Ill.]: I do not rise with respect to the Uniform Marriage and Divorce Act, but now that we have a very full attendance, first to compliment the Conference for the attendance this evening. It’s very heartening, and it is typical of the spirit that we have observed throughout this meeting. I would like to call to your attention several matters, the first of which is that Professor Levy must leave at noon tomorrow. He is committed to leave for Israel at noon {104A} tomorrow. The Committee has been pressing me very hard to keep the Conference working along on the Uniform Marriage and Divorce Act, which I have declined to do, so that we would have at least initial consideration of the Uniform Consumer Sales Practices Act.

That Committee is now at work — all twelve or thirteen of them, I think — in another room on this floor. We have encouraged them with this comment, that if the Uniform Consumer Sales Practices Act Committee is able this evening to produce a redraft, with the benefit of the comments and motions made during the afternoon, we will find some time for another session of that Committee on the calendar.

Now, in order to do that and also to undertake to consider all these other Acts that we have on this very busy and very heavy calendar, it is necessary that we do move, gentlemen, and we have given you a very, very generous amount of time to move along with the discussion tonight, so that we will have some chance of finishing this either this evening, or we give you one hour tomorrow morning.

CHAIRMAN READ: We thank you. And with that in mind, I will add, once again, you have all been very helpful to the Committee in submitting drafting and style comments in writing, and I hope you will continue to do so, and to try to avoid {105A} anything that will be a source of delay.

MR. PENCE [Laramie, Wyo.]: Mr. Chairman, I would like to raise a question about subsection (e) on page 14, because my experience at least has been that in so many of these divorce actions one of the parties has moved to another state. This is quite frequent, and as a result of that they are outside the jurisdiction of the Court, in so far as contempt proceedings or other enforcement of the decree is concerned; and if the contract is not performed, and things remain to be done by way of property settlement and otherwise, many times the only recourse that the other party has is to bring an action upon the contract.

If I interpret (e) correctly, you have done away with that remedy when you incorporate the contract into the decree, and I’m wondering if that is the wise thing to do.

PROFESSOR KAY: The thought of the Committee, Commissioner, was that for purposes of interstate divorces it would be possible to bring an action on the judgement in the other state, in so far as the payments due under the judgement are final and not retroactively modifiable, and this draft does provide that payments for maintenance will not be retroactively modifiable. They are final, and are entitled to full faith and credit under the decisions of the United States Supreme Court. {106A}

If it is future installments, then it is not final, and is not under the law of most states entitled to full faith and credit, but most states have followed the lead of Chief Justice Traynor and others in granting voluntary recognition, and it seemed to us that it was so important to avoid the dispute between whether the contract was enforced or the judgement was enforced that it was better as a matter of policy to provide that the judgement would supersede the contract.

MR. PENCE [Wyo.]: Well, I suppose that in most states that would be true, but in some states it’s not true, or hasn’t been in the past, and I’m not so much concerned about payment of money as I am with other property provisions in the contract that might not be enforced otherwise.

MR. TOWNSEND [Indianapolis, Ind.]: Could I ask a question here? Do you have a provision for a lien on property of either spouse, and the effect of that lien on property, and how it’s perfected, and so forth? I know at least in two states this is a very serious problem, and there should be some provision as to this lien, how it’s perfected when you have many creditors and problems that grow out of these divorce cases, and it seems to me you would need something here to take care of it, and I don’t see it.

CHAIRMAN READ: This Act does not contain any {107A} provisions of its own for liens. If there are such provisions in other law of the state, I take it they would apply.

MR. TOWNSEND [Ind.]: Many states have lien statutes that are parts of the divorce law. CHAIRMAN READ: Perhaps it will be necessary to draft the repealer clearly in such jurisdictions.

MR. TOWNSEND [Ind.]: It seems to me this is a very significant problem.

MR. BUERGER [Buffalo, N.Y.]: Mr. Chairman, will the Committee accept a suggestion in line 17, the insertion of a paren before Section and a paren after 309?

CHAIRMAN READ: I would request that anything of that sort be submitted to the Committee in writing. Shall we proceed with Section 307?

MR. GIBSON:

SECTION 307. [Disposition of Property.]

(a) In a proceeding for dissolution of the marriage, for legal separation or for maintenance following dissolution of the marriage by a court which had jurisdiction only to dissolve the marriage, the court shall set apart to each spouse his property and shall divide the marital property without regard to marital misconduct, in such proportions as the court deems just after considering all {108A} relevant factors including:

(1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(2) the value of the property set apart to each spouse; and

(3) the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.

(b) For purposes of this Act only, “marital property” means all property acquired by either spouse subsequent to the marriage except:

(1) property acquired by gift, bequest, devise, or descent;

(2) property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise or descent.

(3) property acquired by a spouse after a decree of legal separation; and {109A}

(4) property excluded by valid agreement of the parties.

c) All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, and tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (b).

MR. DAVIS [Houston, Tex.]: Mr. Chairman, with reference to c), do you intend that income from the separate property, as we call it in our State, is marital property if the income is acquired during the marriage?

In other words, stocks that are owned prior to marriage — are the dividends from those stocks marital property during the marriage?

CHAIRMAN READ: I would take it that they are.

MR. DAVIS [Tex.]: Well, it certainly is not clear that c) intends to cover that.

CHAIRMAN READ: I believe the Committee will — I know the Committee will consider it. It sounds as though they will accept it. {110A}

MR. MILLER [La.]: Mr. Chairman, as I read this, this would eliminate the community property system following the separation or divorce. Under the community property system in the states that have it, or at least in my State, the wife, regardless of the necessities of proving an actual contribution, is an absolute owner provided one has any community property which is managed by the husband during marriage, but upon dissolution of the marriage, for whatever cause, her vested right in that one half is vested and does not require proof of what she may have done to deserve that one half.

Now, I don’t know that any other community property states — I would think the same rule applies in other community property states.

MR. HELLRING [N. J.]: Commissioner Miller — and particularly Commissioner Tom Davis — in response to your question about income, income during the marriage on property acquired prior to the marriage — I think that was your question, wasn’t it?

MR. DAVIS [Tex.]: Yes.

MR. HELLRING [N. J.]: A careful reading of this paragraph has made it clear to the Committee that by an inadvertent typographical omission there were some words left out of that Section which were intended to be in there, and which provide that property acquired prior to marriage and any increase in {111A} that property, including income, remain individual and not community property.

Does this answer your question?

MR. DAVIS [Tex.]: It does, but that’s exactly contrary to the law of my State. Some of the community property states do that, but some others do not.

MR. HELLRING [N. J.]: That was the way in which the Committee had intended it, in order to try to arrive at some uniformity, in order to make it possible for some of the states which do not have any community property at all to accept the statute and go along with it.

If you want further discussion here of the community property portion, it might be better for us to hear for a while from Herma Kay, the Co-Reporter, who has done a lot of work in this field; but I don’t want to get into it at length, myself, particularly since I come from a state which doesn’t have community property.

MR. KIDWELL [Honolulu, Hawaii]: I’m a member of a committee on a tax relating to community property transferred from community property states to noncommunity property states. In our consideration of that Act, it has been our assumption that it is the law of most jurisdictions that in allocating property in divorce the court takes into consideration all property {112A} held by either spouse, whether that property is held in straight tenancy, tenancy by the entirety, joint tenancy, or as community property; and where the divorce is in the non-community property states, at least in Hawaii, if the spouses have brought with them community property, the Court takes into consideration that community property in allocating the property between spouses.

Therefore, I believe that subsection c) should refer also to community property, when referring to property held individually or by the spouses in some form of co-ownership, and I suggest that the Committee consider the addition of community property as an additional form of ownership to the three that are mentioned.

MR. HELLRING [N. J.]: We will certainly give consideration to your suggestion. I might point out to you that, of course, the Section contemplates that, while there is a differentiation between what we call marital property here and property individually held, that the court in making its determination as to the distribution and division of the property will take into consideration all of the property that exists, whether individually owned or whether it’s marital property, just as you suggest.

MR. KIDWELL [Hawaii]: I believe confusion could arise unless {113A} community property is referred to here.

PROFESSOR KAY: In California, which is a community property state, before we enacted our new Family Law Act, which we did in 1969, even though it was recognized that the wife acquired a vested interest — a vested one-half interest — in the community property during the time of the marriage, at the time of divorce the Court was permitted to divide the marital property — the community property — in such proportion as the Court deemed just in respect to the circumstances of the parties; and the old law, in fact, differed according to the grounds of divorce, and the Court was ordered to divide the property unequally if the divorce was based on insanity, for instance, or adultery.

We thought, in making this grant, that it would be too much of a change to try to state in the old common law property states, who had not considered before the concept of dividing what they would view as the husband’s property on divorce at all — to say to them: You have to give half of this property to the wife at the time of divorce. And that’s why we went to this softer standard of “in such proportions as the court deems just”.

Now, it seems to me that in the community property states — and we intended to put this in a comment — that the {114A} community property states may wish to, instead of saying “in such proportions as the court deems just”, say that the court shall divide the marital property equally, or use some other language more in line with the traditional concepts of community property; but we did think that would be too much of a change to ask of the common law states.

MR. NEEDHAM [R. I.]: Mr. Chairman, I have a couple of questions. In reading this, we are talking about the jurisdiction of a court where there is only jurisdiction as it relates to a right to dissolve, or divorce.

Now, I assume that this Section means where there is no personal jurisdiction over one of the parties; namely, what we should traditionally call in the common law states no personal jurisdiction over the respondent who is brought into court.

Now, I don’t think that there is very much difficulty in dividing anybody’s property if the respondent submits to the jurisdiction of the Court, but if I read this Section correctly, we’re talking about a Court which had jurisdiction only to dissolve the marriage, and then we go on to say that the property shall be divided, and we go into various formulas, and we talk about marital property, and we talk about regardless of how the property is held. {115A}

Now, I frankly find it difficult to believe, No. 1, that a court by acquiring jurisdiction to divorce can affect property in the absence of personal jurisdiction outside the state, and, No. 2, if they don’t have personal jurisdiction and the respondent owns property within the state, I suggest that there may be some constitutional prohibitions about any division of that property, and I cite the old constitutional case of Pennoyer v. Neff. If I am wrong, I would like to be informed.

PROFESSOR KAY: The mention, Commissioner Needham, in the original section (a) of 307 is that you have had a prior divorce proceeding, usually in another state, that has been an ex parte proceeding; for example, the Neff divorce, where only one spouse appears, and the other spouse is not before the Court.

Now, under standards of the Supreme Court due process law, the Neff Court lacks jurisdiction in a case like that to do anything except dissolve the marriage, so that leaves the property and support and maintenance rights to be decided in another proceeding where there is personal jurisdiction over both parties, and in subsection (a) of Section 307 we are saying that this is now that second proceeding, where there is a proceeding for maintenance following dissolution of {116A} the marriage by a court which had jurisdiction only to dissolve the marriage. That is not the Court that was the former Court. In this proceeding we have jurisdiction over both parties.

MR. HELLRING [N. J.]: If I may say so, what Professor Kay is saying is that you are quite correct, Commissioner Needham. Section 301 said that in a proceeding for dissolution of the marriage the Court will act on this subject of distribution of property — and I’m reading from line 8 on page 9 under “Dissolution”, Part III, Section 301, where it says “to the extent it has jurisdiction to do so”, so that we did recognize your point in the draft, and that’s the way we intended it.

MR. JOINER [Detroit, Mich.]: Mr. Chairman, don’t you have to, then, if you are going to follow up this theory, change the first clause of Section 307 (a)? Don’t you have to say in the first clause, “in an action for disposition of property following dissolution of marriage by a court which had jurisdiction only to dissolve the marriage, the court shall set apart”? Isn’t that exactly what you are saying?

PROFESSOR KAY: In the maintenance section we had called it a proceeding for maintenance. I would have no objection to calling it a proceeding for disposition, with the understanding that you could then join a proceeding {117A} for disposition of property with a—

MR. JOINER [Mich.]: But it is not accurate the way it is now. It is not in this state an action for dissolution of the marriage — in this state.

PROFESSOR KAY: No. No, it is not. There are three things: dissolution of marriage — that’s the first; legal separation is the second; and the proceedings for maintenance of property is different, as you suggested, but that’s not a proceeding for dissolution.

MR. HELLRING [N. J.]: But we will consider your suggestion, certainly.

MR. MILLER [La.]: How can there be two?

CHAIRMAN READ: Commissioner, I think what is being said here is that the Court which has jurisdiction only to dissolve the marriage modifies only the action for maintenance. In other words, an action for dissolution, an action for legal separation, or an action for maintenance following dissolution, and so on, by a court which has jurisdiction only to dissolve the marriage; do you see what I mean? The modifier is only on the third of the three actions.

MR. JOINER [Mich.]: Better change the order of it, then, and put it up in front.

CHAIRMAN READ: I think if it’s not clear that the {118A} Committee has the issue well in mind.

MR. HELLRING [N. J.]: Yes, and the Reporters and the Committee will work out the language.

MR. JESTRAB [Williston, N. Dak.]: I’m just not sure that I understand what the problem is. As I understand it — and I undertook to enforce the judgement in Rozann v. Rozann (?) in two other states, so I’m familiar with this question, and I don’t see why you need to deal with that problem in this Act. All you need to do here — and I think you have done it — is to provide for divorce, or dissolution — whatever you want to call it; that’s the old-style term — make the order, and then it’s a judgement. It’s entitled to full faith and credit, and you don’t need a lot of fancy language in this statute to enforce it.

I don’t know what the problem is. Either I’m behind or somebody is ahead, or something. I don’t get it.

PROFESSOR KAY: This is not the Rozann situation. In Rozann the California Court had personal jurisdiction over both parties. Here we’re assuming the typical Neff divorce, where there is not personal jurisdiction over both parties.

MR. JESTRAB [N. Dak.]: Well, of course, if there isn’t personal jurisdiction over both parties, or jurisdiction of the status, your divorce isn’t any good.

PROFESSOR KAY: No, no. The Court, under the {119A} Supreme Court decision, may dissolve the marriage.

MR. JESTRAB [N. Dak.]: If they have jurisdiction of the status.

PROFESSOR KAY: This action presupposes there has been termination of status, and nothing more, and we are now bringing a separate proceeding not to terminate the status, because that has already been terminated, but to take care of maintenance, support, and disposition of property.

MR. JESTRAB [N. Dak.]: And that would be brought in the state where you could get jurisdiction and where the property lies, is that correct?

PROFESSOR KAY: That’s correct.

MR. JOINER [Mich.]: I would just like to inquire, if I may, of Professor Kay: have we covered the situation where part of the property is in the state where the marriage dissolution is taking place, and there has to be an action in another state to take care of the rest of the property?

PROFESSOR KAY: We haven’t provided for that expressly. In so far as there was in rem jurisdiction in the first state, we take care of it in the first state, but we have not referred to what Mr. Jestrab referred to as the Rozann situation.

MR. KULP [Camden, N. J.]: Mr. Chairman, I have a hard time {120A} accommodating myself to subsection (b), where it says: “For purposes of this Act only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except”. I have no problem with property acquired by gift, bequest, devise or descent, but the thing I wonder is: why, when a man or woman brings property to the marriage, couldn’t it be considered marital property?

You have in another section — Section (4), which is on line 23 — “property excluded by valid agreement of the parties.” But it would seem to me that where the parties go into a marriage, that should be legally submitted to the marriage, unless they expressly agree otherwise.

PROFESSOR LEVY: I think it might be possible for me to answer that, Commissioner Kulp.

I think that there has been a lot of talk earlier this evening — and this morning — about legislative acceptability. I think if the Conference promulgates Section 307 and the common law property states accept it, we have done one whale of a year’s work, and I don’t think that we are going to be able to get too many state legislatures to go beyond what we have done here. I think this is a marvelous advance in the law of most states.

MR. HELLRING [N. J.]: Commissioner, if I may rise one {121A} moment to a point of pride, it is that the New Jersey Commissioners — a State which doesn’t have any community property — are pressing hard for broadening it, which is an indication of the fact that at least as to this aspect of the statute we look forward to some uniformity in bringing the statute into New Jersey.

MR. HOROWITZ [Seattle, Wash.]: There are, of course, eight states in the Union that have the community property system. I don’t pretend to know what the divorce law is on the disposition of property, but we do have the problem occasionally — and importantly — of separate property on the part of the husband and nothing on the part of the wife — no community property, no separate property.

Under the language of this Section, if all the separate property were awarded to the husband, there would be nothing for the wife, because there is no marital property, so the rule has been adopted in our State by decision that all property of the parties, separate and community, is subject to disposition by the Court, and that works out fairly well.

Is it the intention of the draftsmen here to adopt the view that if there is separate property owned by one spouse, and no marital property whatsoever — is all that separate property awarded to the spouse only? {122A}

PROFESSOR KAY: That would mean that on the award of maintenance the Court would have to take into account that there would be no property disposition to make up for it.

MR. HOROWITZ [Wash.]: Your remedy as to (e) would be a serious change in the law of my State.

PROFESSOR KAY: It would be normal practice under the California system, because we do not, and never have permitted division of separate property of either spouse.

MR. LEFLAR [Fayetteville, Ark.]: I venture to suggest that it would be a substantial change not only in community states, but also what’s done in common law states. After all, if the man has a million dollars and marries a good-looking girl, she is entitled to a part of that million dollars when he gets the divorce, even though it’s premarital property, and she gets it.

CHAIRMAN READ: I don’t think that marriage can be irretrievably broken. [Laughter]

MR. ABRAMS [Newark. N.J.]: Mr. Chairman, I’m not sure I appreciate the real impact of this Section. If a lady runs away with her next-door neighbor and goes to a state that happens to have this initial Act, and she is able to persuade the Court that the marriage is irretrievably broken, so that a decree is granted to her, then she can come back, regardless of what her status is with her paramour, or if she remarries, and cut up {123A} her husband’s property. Is that the idea?

CHAIRMAN READ: I take it she can cut up the marital property, as defined in the Act, and she can take her separate property regardless of fault, and that division also, Commissioner Abrams, is just and proper as determined by the Court.

MR. JESTRAB [N. Dak.]: I don’t want to labor this, and I know the hour is late and you are anxious to get on, but I’m still puzzled by this business that the Court — I only know of one place where the Court will grant a divorce upon the grounds that the state or territory has jurisdiction of the status, and I think that’s in a Southern state, or it’s the Virgin Islands, or some place. [Laughter]

In other places you have to serve people with process, and you serve people with process by mail, or whatever, substituted or other sort of service that you have; but when you do that, you have jurisdiction of the person.

Now, you can’t enter a personal judgement against them, but I believe that you can decree in the judgement that is entered the division of the property, and that you can—

[Calls of “No! No!”]

MR. JESTRAB [N. Dak.]: Now, wait just a minute — and that you can enter a decree dividing up this property, and that you can take this decree elsewhere and sue on it. {124A}

Now, maybe I’m wrong about that, and some of these experts can tell me. I have tried it two or three times; but I’d be interested to hear what they think about it.

PROFESSOR KAY: Well, as I read the Supreme Court’s due process opinion, it is that in such typical cases as the Nevada Court practice, where the Court has jurisdiction over one party based on residence and testimony at the domicile, and has served the other party by publication outside of Nevada, so that there is no personal service within the state and there is no long-arm statute that’s applicable, then Nevada lacks personal jurisdiction over the other party and has only jurisdiction over the marital status, which is furnished by domicile, and can do nothing more than decree the dissolution of the marriage. It cannot affect property rights or support rights, and, indeed, depending on the way you read Malik v. Anderson, it’s even doubtful that they can affect the custody of children, although I don’t feel very strongly about that.

However, that question aside, it’s perfectly clear that Nevada can not affect property rights if it lacks personal jurisdiction over the other party.

MR. JOINER [Mich.]: Mr. Chairman, I’m sorry. I just don’t want to leave something uncovered here that’s going to be important, and I want to come back to the one I asked about {125A} earlier, in which the Court did have power to dissolve the marriage and did have power to divide certain property, but it’s only a small portion of the property, so therefore when you come in the second stage for your maintenance action, I look to the maintenance section, and I don’t find anything there that gives him the power to divide that property. If you can foreclose that some way by the draft, I think it is a drafting problem, not a substantive problem.

PROFESSOR KAY: Do you think it would take care of it if we asked the Courts to take into account the property decision, if any, made by another Court?

MR. JOINER [Mich.]: It has to do with the language “maintenance following dissolution of the marriage by a court which had jurisdiction only to dissolve the marriage”. What you really mean is by a court which did not have jurisdiction to grant an award of this property.

PROFESSOR KAY: Well, the language I originally used is ex parte divorce, which is technically correct, and the Committee didn’t want to use that, so we used this language, which spells out what an ex parte divorce is, and we can take under consideration, if you like, some other language.

MR. VESTAL [Iowa City, Iowa]: Can’t you say “a court that did not have jurisdiction over the person of the defendant”? {126A}

PROFESSOR KAY: You can say that.

CHAIRMAN READ: All right, the Committee will consider that.

Can we continue, then, with Section 308?

MR. GIBSON:

SECTION 308. [Maintenance.]

(a) In an action for dissolution of marriage, legal separation, or maintenance following dissolution of the marriage by a court which had jurisdiction only to dissolve the marriage, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance

(1) lacks property, including marital property apportioned to him, to provide for his reasonable needs, and

(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering {127A} all relevant factors including

(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) the standard of living established during the marriage;

(4) the duration of the marriage;

(5) the age, and the physical and emotional condition of the spouse seeking maintenance; and

(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

CHAIRMAN READ: Will you comment?

MR. BUERGER [N.Y.]: Mr. Chairman, the opening clause of Section 309 should follow the same formula that you finally agreed on for the opening clause of Section 308. {128A}

CHAIRMAN READ: I believe the Committee noted that the same problem exists in both sections.

We will proceed with 309.

MR. GIBSON:

SECTION 309. [Child Support] In an action for dissolution of marriage, legal separation or maintenance, the court may order a parent owing a duty of support to a child of the marriage, whether born or unborn, to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including

(1) the financial resources of the child;

(2) the financial resources of the custodial parent;

(3) the standard of living the child would have enjoyed had the marriage not been dissolved;

(4) the physical and emotional condition of the child, and his educational needs; and

(5) the financial resources and needs of the noncustodial parent.

CHAIRMAN READ: Will you comment?

[No one responded.]

CHAIRMAN READ: If not, we will continue with 310.

MR. GIBSON:

SECTION 310. [Representation of Child.] The court may appoint an attorney to represent the interests of a minor or dependant child with respect to his custody and support. The court shall enter an order for costs, fees and disbursements in favor of the child’s attorney. The order shall be made against either or both parents, except that, if the responsible party is indigent, the costs, fees and disbursements shall be borne by the [appropriate agency].

CHAIRMAN READ: Will you remark?

MR. NEEDHAM [R. I.]: This is perhaps a rhetorical question, but I still hold to the fact that when a marriage is determined to be irreconcilably broken, that the interest of the child being protected that this section says he has a right to have protected may very well import that the child, through its attorney, may have a right even over the agreement of the parties that the marriage is irreconcilably broken.

MR. HELLRING [N. J.]: Well, as the section is now drafted, Commissioner Needham — and I think I’m repeating what I said earlier today in response to the comment which was made by Commissioner Ring, and which I see he is about to repeat now [Laughter] — when he rose earlier today, I commented that {130A} Section 310 as it is now written limits the power of the Court to the appointment of an attorney to represent the interests of the minor or dependant child to questions of custody and support, and those questions only, and that if this is to be broadened, as some members of the Committee and some other Commissioners feel it should be, that the Committee of the Whole will have to broaden it; but as it reads now it’s limited to custody and support.

MR. RING [Wash., D.C.]: You guessed my reason for rising. It seems to me that, having put in “may”, this is a permissive act of the judge in connection with custody and support, and that by implication you are denying the judge the authority to see to it that the child has representation in other circumstances where the judge may feel it appropriate for the child to have representation. I don’t think you ought to limit the judge’s discretion.

In most instances probably the child needs no representation, and since the “may” is in the proviso already, there is no requirement that the judge appoint representation, and under these circumstances I think that it should be extended to permit the judge in his discretion to provide counsel for the child not only in connection with custody and with support, but also with the dissolution of the marriage and on {131A} the matters relating to the family relationship under this Act.

I would like to move that it is the consensus of this group that the authority of the Court should extend to appointing counsel in every matter that may arise.

MR. HELLRING [N. J.]: You are not suggesting in your motion that the word “may” be changed to “must”? You are leaving it discretionary?

MR. RING [Wash., D.C.]: Very much so! I think it should be discretionary.

MR. DUNHAM [Chicago, Ill.]: Mr. Chairman, it seems to me that to add representation of the child to the proceeding for dissolution of the marriage puts us right back to all of the things that we have been arguing about at an earlier point, and, most importantly, it would seem to me the idea that the child should keep the family together when the family is in fact irreconcilably broken down — the marriage is — is just an impossibility, and I don’t see how the child or the attorney has anything to say on that issue, if it is in fact broken down, or if the parties — the husband and wife — agree that it is broken down.

CHAIRMAN READ: Will you remark further?

PROFESSOR LEVY: I can report to you that, while the studies are fairly recent and there aren’t a great many of {132A} them, what studies there are which have followed up children of divorce suggest that children of divorced parents make out better on every relevant criterion — how well they do in school, how well they do after school, et cetera — than do the children of undivorced parents who label their parents’ marriages as unhappy.

MR. PIRSIG [Minneapolis, Minn.]: Mr. Chairman, I’d like to suggest to the Committee that the functions that are contemplated here for the attorney are normally the functions of a guardian ad litem, and there are cases that suggest that, rather than an attorney performing these functions, there should be a guardian ad litem appointed.

MR. HELLRING [N. J.]: The Committee did consider this at great length, and decided not to include any provision for a guardian ad litem, but to try this attorney representation method, for a number of reasons.

Among those reasons was the desire not to include in the Act an opportunity for the kind of political appointments that we were told are made available in situations of this kind in some areas of the country. There was also a feeling that it would be more appropriate for simple representation by an attorney, and that it would speed up the proceeding, whereas a guardian ad litem situation would slow it up. {133A}

MR. CALLOW [Wisc.]: And the third point is that there are some jurisdictions in which it is deemed improper for the counsel to serve as both guardian ad litem and counsel, and I think that is a problem that we considered.

MR. PIRSIG [Minn.]: That was my very point, that while you designate him as an attorney, nevertheless you are conferring functions upon him as an attorney and as a guardian ad litem, and there are cases which indicate that the proper function of an attorney in a case of this kind is to advise someone else as to the respective legal consequences of this or that action, and it is for the guardian ad litem to make a decision in the light of that legal advice.

MR. CUNNINGHAM [Md.]: I’m worried about the thrust of the last sentence, where your responsible party is indigent, because an attorney to advise as to the child’s rights of support is not going to get blood out of a stone. In other words, what he can accomplish as the attorney for the child to work out support is minimal.

What bothers me is the thought that in certain areas this may be an automatic attorney’s fee out of public funds that is not justified. I don’t know what the answer to it is, but I am concerned that it can get out of hand.

CHAIRMAN READ: I believe the Supreme Court thinks {134A} it’s not justified.

The motion, then, is for the sense of the meeting as to the proposition that the Court may appoint an attorney to represent the interests of a minor or dependant child, not only with respect to custody and support, but with respect to other matters, including, particularly, the breakdown of the marriage.

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

CHAIRMAN READ: May we continue with 311?

MR. GIBSON:

SECTION 311. [Payment of Maintenance or Support to Court.]

(a) Upon its own motion or upon motion of either party, the court may at any time order that maintenance or support payments be made to the [clerk of courts, court trustee, probation officer] as trustee for remittance to the person entitled to receive the payments.

(b) The [clerk of court, court trustee, probation officer] shall maintain records listing the amount of payments, the date when payments are required to be made, and the names and addresses of the parties affected by the order.

(c) The parties affected by the order shall inform the [clerk of court, court trustee, probation officer] of {135A} any change of address or of other conditions that may affect the administration of the order.

(d) If a party fails to make required payment, the [clerk of court, court trustee, probation officer] shall send by registered or certified mail notice of the arrearage to the obligor. If payment of the sum due is not made to the [clerk of court, court trustee, probation officer] within 10 days after sending notice, the [clerk of court, court trustee, probation officer] shall certify the amount due to the prosecuting attorney. The prosecuting attorney shall promptly initiate contempt proceedings against the obligor.

(e) The [prosecuting attorney] shall assist the court on behalf of a person entitled to receive maintenance or support in all proceedings initiated under this section to enforce compliance with the order.

CHAIRMAN READ: Will you comment?

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I would like to make a comment with respect to the contempt proceedings that are contemplated.

It is held in some jurisdictions that a person cannot be confined for failure to obey an order which provides for the payment of money only, and in some jurisdictions this has been {136A} held to be applicable to orders providing for temporary maintenance, so that the statutes regarding temporary maintenance expressly provide that in contempt proceedings punishment for failure to obey can include confinement.

Now, is it the Committee’s intent that confinement shall be one of the penalties for failure to obey under this Act? And if so, should there be some express provision in there?

MR. MERRILL [Okla.]: The Committee’s thought there, I think, Commissioner Gardner, was that we would relate this to the other procedures available in that particular state. In other words, since the processes of civil contempt do vary from state to state, we wouldn’t try to break in on that with a uniform rule. We would relate it to the rules of that particular state with respect to the extent of the process for civil contempt.

MR. VON HERZEN [Calif.]: Mr. Chairman, may I beg your indulgence and go back to 309, just to have a matter considered by the Committee?

In 309, on line 3, the words are used, starting with line 2, “the court may order a parent owing a duty of support to a child of the marriage, whether born or unborn”, and “whether born or unborn” seemed to me to be surplusage, because {137A} the Court could have that right in any event, and this may cause considerable problems for us in relation to other Acts.

As you probably know, there is considerable dispute as to when a child in the womb is a human being, and with relation to our Uniform Abortion Act the use of the words “child . . . whether born or unborn” could create problems, and I would like to have the Committee consider the possibility of whether those three or four words are really necessary.

CHAIRMAN READ: I’m sure the Committee will do so.

MR. McKUSICK [Maine]: I have another difficulty with those same words. One might infer from that that a child adopted by the couple during marriage was not included in the phrase “a child of the marriage”, where it says “whether born or unborn”.

CHAIRMAN READ: I’m sure the Committee will consider that also.

MR. HELLRING [N. J.]: The Committee is delighted to accede to the suggestion of Commissioners Von Herzen and McKusick, and those words will be dropped.

CHAIRMAN READ: We will proceed, then, with 312.

MR. GIBSON:

SECTION 312. [Wage or Salary Assignments.] The court may order the person obligated to pay support or maintenance to make an assignment of a part of his earnings {138A} to the person entitled to receive the payments. The assignment is binding on the employer 2 weeks after service upon him of notice that it has been made. The employer shall withhold from the earnings payable to the employee the amount specified in the order. The employer may deduct from each payment a sum not exceeding [$1.00] as reimbursement for costs. The employer shall not discharge or otherwise discipline the employee as a result of a wage or salary assignment authorized by this section.

CHAIRMAN READ: Will you comment on 312?

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I take it from lines 9, 10, and 11 on page 18 that the Committee had some concern over the possible severe consequences that might result to an employee whose only means were either a wage or salary, especially in light of the fact that no particular showing has to be made before the assignment is ordered. I wondered if the Committee gave any consideration to the impact this might have on hiring practices, and might operate to reduce the potential for employment as well as result in termination of employment.

MR. MERRILL [Okla.]: I shall have to say, Commissioner Gardner, that that particular point was not raised in the Committee discussion. I do not know whether we have anything like available statistics to indicate that there would be an {139A} impact there. Your suggestion, I take it, is that the employers would immediately refuse, or at least give a lower status to those prospective employees who were married and had children.

It seems to me that, just ex cathedra and without, as I say, any opportunity to consult statistics — which I doubt exist — it would be impossible for an employer effectively to recruit a labor force without having considerable bodies of employees married and with children.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, I had particularly in mind that many employers, before hiring, examine the record to see if there are any judgements existing. It may well be that many employers might examine the records to see if there have been any wage assignments as to a particular applicant, and might equate that with the existence of a judgement, and let that influence them in so far as hiring an employee.

CHAIRMAN READ: Thank you.

MR. SULLIVAN [Id.]: Mr. Chairman, I’m a little concerned about that. It seems to me there is some confusion. In the first sentence it says that the court may order the person to make an assignment of part of his earnings. Then we come over, and it says the employer shall withhold from the earnings payable to the employee the amount specified in the {140A} order.

Now, the first sentence requires two acts: one, an order; the second is an assignment to be made, say, by the father. If that is true, it should provide in the third sentence “shall withhold the amount specified in the assignment”; or, I think, it would be more proper, really, if it could be done, just to have the one act — in other words, the order directing the payment out of earnings, rather than the two acts, because if we are going to have two acts, then I take it that the third sentence should refer to the assignment and not to the order.

CHAIRMAN READ: Thank you.

MR. TOWNSEND [Ind.]: This also is in conflict with those states that have adopted the Federal Rules to the effect that an order where you can order a person to do something — you can order the act to be done, or the order “so be it.” And this is a very clumsy way, I think, to approach it.

CHAIRMAN READ: Thank you. I think this is more a drafting point than a point of substance, and I’m sure the Committee will take care of it.

MR. TOWNSEND [Ind.]: At this point I would like to suggest, too, if you want to make these decrees enforceable, particularly those that are not final — and these may or may not be final — {141A} and also on disposition of property and on attorney’s fees, that you include some provision here for a lien on the property. This is the most effective way that you can bring about a collection, and right here is the point at which you can put in a provision for an order directing a lien on real or personal property and ordering it to be perfected, and it’s a very simple provision. I don’t want to do the drafting, but certainly I think something should be done here, particularly for attorney’s fees. [Laughter]

MR. GIBSON: In most states, Commissioner, a judgement is a lien, and in those states where it’s not a lien, they, of course, could provide for it to be a lien; but I think that in a substantial number of states any judgement—

MR. TOWNSEND [Ind.]: If it is a final judgement, it is, or it may be; but if you are talking about something here that is subject to revision — is it not? — in many states it’s not a lien.

MR. GIBSON: Well, a decree of maintenance, or even a temporary decree of maintenance, at least in Missouri, provides a lien, or a decree for attorney’s fees constitutes a lien. I think that’s a matter of detail.

MR. TOWNSEND [Ind.]: Do not most divorce statutes include this? This isn’t in your lien statutes? {142A}

PROFESSOR LEVY: Commissioner, if you will look at my original monograph, you will note in there a recommendation for the Conference to concern itself with conforming the lien law and also the law of criminal contempt. The Committee persuaded me that we could do without it in here, because it was a hornets’ nest that might take us five or ten years to correct, while we were trying to correct all of the other things that we are correcting here.

I personally, not through laziness but tiredness, urge you not to insist that we take up those matters here also.

CHAIRMAN READ: We will continue with 313.

MR. GIBSON:

SECTION 313. [Attorney’s Fees.] The court from time to time may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this Act and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgement. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

MR. NEEDHAM [R.I.]: Mr. Chairman, is it the intent of the Committee that the attorney’s fee be permitted to be ordered {143A} regardless of whether or not the party with the attorney’s fee be of sufficient means to pay? And is it the opinion of the Committee that the party having sufficient means should pay a reasonable attorney’s fee?

MR. MERRILL [Okla.]: The Committee thought from that, Commissioner Needham, that, based on practice generally, the term “reasonable attorney’s fees” does include the proposition that those fees are necessary for the purpose of enabling the party to maintaining the proceeding, and that similarly the term “reasonable” gives the discretion with respect to the ability of the respondent, if you wish to use that term, to pay the fee.

MR. NEEDHAM [R.I.]: I’m going to just say that it’s my understanding of the general practice in divorce law that the criterion is that the party asking for fees not have sufficient means, and that the other party has sufficient means to pay a reasonable attorney’s fee.

There was a case in Rhode Island I am familiar with, and I’m familiar with the same type of decision in at least three other states where that is the criterion, and while I like to see attorneys get paid, I don’t like to see the Conference just say: Well, if it’s a reasonable attorney’s fee on a court order, it’s got to be paid. {144A}

CHAIRMAN READ: Section 314.

MR. GIBSON:

SECTION 314. [Decree.]

(a) A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from the decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage, so that the parties may remarry pending appeal.

(b) No earlier than 6 months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution of marriage.

(c) The Clerk of Court shall give notice of the entry of a decree of legal separation or dissolution

(1) if the marriage is registered in this state, to the [marriage license] clerk of the [county, judicial district] where the marriage is registered and the [marriage license] clerk shall enter the fact of separation or dissolution in the [Registry of Marriage]; or

(2) if the marriage is registered in another {145A} jurisdiction, to the appropriate official of that jurisdiction, with the request that he enter the fact of separation or dissolution in the appropriate record.

MR. BURDICK [N. Dak.]: I really don’t see the need for recording the fact of separation in the other state. Perhaps this may be desirable in the state where the court and the place of marriage are the same, but I really don’t see where this would serve any purpose, to record separation in another state.

I think the objective is to simply wipe out the marriage which occurred in the other state if there has been a divorce, but I don’t see where this pertains to separation.

MR. McKUSICK [Maine]: In line 6 I wonder if that phrase “so that the parties may remarry pending appeal” isn’t stating the obvious.

Also, I would think it should read “so that either of the parties may remarry pending appeal.” Otherwise it sounds as if the divorced couple are going to remarry.

CHAIRMAN READ: I’m sure the Committee will consider that.

MR. DAVIES [Minn.]: I have a problem with line 6 as well. I can conceive of a situation where someone may take an appeal {146A} on the property aspect or on the support aspect or the custody aspect, and before the time has run might challenge the finding that the marriage is irretrievably broken. Should it not be that they can remarry after the time for commencing the appeal has expired, rather than that they may be married pending an appeal?

It seems to me what you are doing is stating the rule as an exception to something, rather than as a rule that they can remarry after the time for appeal has arrived, and then perhaps have a provision that they can remarry even if an appeal has been taken, if the appeal only challenges property, or something.

CHAIRMAN READ: The Committee, I’m sure, will consider the suggestion.

MR. GIBSON:

SECTION 315. [Independence of Provisions of Decree or Temporary Order.] If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended; but he may move the court to grant an appropriate order.

CHAIRMAN READ: Any comment? [There was none.] {147A}

MR. GIBSON:

SECTION 316. [Modification and Termination of Provisions for Maintenance, Support and Property Disposition.]

(a) Except as otherwise provided in subsection (f) of Section 306, the provisions of a decree of dissolution or legal separation with respect to maintenance and support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable. The provisions as to property disposition may not be revoked or modified.

(b) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

(c) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child but not by the death of the parent obligated to pay support. When the parent obligated to pay support dies, the amount of support may be modified or revoked to the extent just and appropriate in the circumstances on petition of {148A} representatives of his estate.

MR. McKUSICK [Maine]: A small matter. In lines 3 and 4 you speak of “provisions of a decree of dissolution or legal separation”. That doesn’t take care of the situation where you may have an order of maintenance and support entered in connection with a dissolution of marriage obtained in another state.

PROFESSOR KAY: That’s an oversight, and we’ll put it in.

MR. HELLRING [N. J.]: Right.

MR. McELROY [Tulsa, Okla.]: My question is: how do you ever discharge the personal representative, administrator, or executor, if you have an outstanding order for child support which continues to be an obligation of the estate of the deceased?

PROFESSOR LEVY: When the obligation for support under the state law terminates, the obligation for support of the decedent terminates.

MR. McELROY [Okla.]: So with a small child you could have a continuing probate proceeding or administration proceeding for fifteen or twenty years?

PROFESSOR LEVY: That’s one possibility. The language, however, that we adopted is designed, as the comment {149A} will suggest that it is designed, to permit the representative to make a lump sum settlement for the obligation of support, so that the estate will not necessarily stay open.

MR. McELROY [Okla.]: Will that be provided in the language of the Act?

PROFESSOR LEVY: The Committee thought that it was, with the appropriate comment. If you don’t think it’s clear enough with the comment, the Committee will simply work on it some more.

MR. McELROY [Okla.]: I would suggest that the Committee consider that, because I don’t personally see that it’s clear enough in this language.

MR. BURDICK [N. Dak.]: The Federal Internal Revenue laws authorize the state court to specify which of the parties should receive the dependency deduction in case of support payments, and I think there ought to be some provision written in here in this section, or chapter, that authorizes the Court to do this.

The federal Act recognizes that the Court can do that, but that isn’t to say that the state law would provide for this, and I think the two — in other words, a special provision should be made making it compatible with the federal Act, so that the Court who makes the order for support can {150A} specify which of the parties shall receive the dependency deduction within the rules of the federal law.

CHAIRMAN READ: The Committee will consider your suggestion, Judge, and, in fact, seems to be doing so. [Laughter]

MR. NEEDHAM [R.I.]: I just have a hypothetical I’d like to get the Committee’s answer to.

We are talking about a division of property in other sections, and let us assume that there has been a division of property — modest property — and custody has been awarded to one of the parties. Let’s say it’s the wife — but that in a division of the property the marital domicile was set off to her and a certain portion of the real estate and some of the personal property was set off to her, and the obligation to contribution of a nominal sum was imposed upon the father and the husband. And let us assume that within a relatively short period after that the wife made a will, or remarried, and then she died, leaving the property which came to her. She does not, as I interpret this, have any obligation to support.

Now, I would think under those circumstances the obligation of custody would be revived in the father of the children, now deprived of better than half of his property. I wonder whether some situation can be reflected here so that {151A} the father gets the same break when he dies, so he can remarry and dispose of his property. The obligation to continue support — you say that continues until the children reach some age, simply because the Court said he had to pay weekly amounts to the wife. It doesn’t seem quite fair, if something happens to the wife who has received a substantial amount of property, and he has to take over the custody of the children, that a corresponding obligation should not fall on the estate of the wife who received the custody of the children.

Would someone like to answer that, please?

MR. GIBSON [Mo.]: I think, Commissioner Needham, that that particular factual condition that you have hypothesized would be taken care of, in that the child would be an heir of the wife and share in the wife’s estate, and that money wasn’t given to the wife for the child. The child’s support is paid by the father, even though the child’s support might be reduced be reason of the financial condition of the mother. The child still would share in the mother’s estate.

MR. NEEDHAM [R.I.]: That’s an assumption on your part, sir. A wife could remarry, and because of the way that she held her real estate received from her first husband, a great portion of it could go off to her second husband, or she could divest herself by will. {152A}

MR. CALLOW [Wisc.]: I think this defies draftmanship. I don’t think we could solve the problem.

MR. GIBSON [Mo.]: I suppose you could hypothesize any number of cases that would cause an injustice in equity to a child, but I don’t see how you can take care of those type of cases in an Act of this kind, because you probably create more difficulties and do more harm in trying to make a charge back against that estate of the mother than you would correct any inequities that might arise. At least that’s the way the Committee feels about it.

MR. NEEDHAM [R.I.]: May I suggest that both parties have an obligation of support, and the Committee has recognized that obligation in other sections that we have discussed, where they talked about the financial condition of the custodial parent, and I just find this provision, incidentally — the one that we’re talking about — that the support payments should continue if there is sufficient money — I like this provision. I think that it does add some help to the children and the person who is left without a source of income at the death of the father; but I find, if it’s not off, and we are going to impose it upon the parent who had the obligation to pay money — then I think when we are dealing with property settlements — and I have represented a lot of respondents who {153A} have found themselves with children in these circumstances — that there should be some corresponding help for the father after he gives up his property in this circumstance.

MR. HELLRING [N. J.]: Commissioner Needham, I hope that your suggestion indicates that the Committee’s drafting, or wording of some of the sections, will yield appropriate remedy in a situation such as you propose. Section 309, dealing with child support, makes it perfectly clear that the Court may order support to the child not only from the father but from the mother as well, and certainly in those non-community property states where this Act may be adopted, if there is an equal division, let’s say, of all of the property, the Court may well order child support to be paid by both parents, and under those circumstances the same thing would apply.

I take it your suggestion is that the Committee give some further thought to strengthening these provisions, to make more sure, if possible, that the statute permits this kind of an order by the Court.

MR. NEEDHAM [R.I.]: I think you and I are talking the same. I would like to see both obligated to support where you are having a post-death obligation, which is new in this Act, unless I am mistaken. I know of no state that has adopted this. It’s new in this Act, and I suggest that it’s possible to {154A} strengthen it where the obligation to support will still be upon both parents to some degree, so that a father who is left with children and the obligation to support may look for some help to the estate of a wife, whose estate could assist him in this regard.

MR. HELLRING [N. J.]: I think your position has been clearly stated.

MR. HOOPER [Chicago, Ill.]: Why can’t we just change the word to “the”?

MR. HELLRING [N. J.]: Why don’t we take it under consideration, and see if we can beef the language up?

MR. BARRETT [Ark.]: I don’t have an answer, but I have a question.

In making support an obligation of the estate of the decedent, how are you going to handle the question of priority of claims against that estate? I don’t think you have done it here, and I don’t know of any law that permits it, or any statute anywhere that would determine the priority for paying support to the child against the estate of the decedent in relation to other claims against the estate, such as security claims, deferred claims, et cetera.

CHAIRMAN READ: I imagine that the Committee felt that that would fall under the estate law, and that it would {155A} fit into one class or another of claims, and perhaps they didn’t want to tangle with the very complicated problem of disposing of it in this Act, when everyone is going to be adopting the Uniform Probate Code right away anyhow. [Laughter]

MR. BLEWETT [Great Falls, Mont.]: Mr. Chairman, I do very little divorce work, but I understand this Code to mean now that once a decree as to disposition of property is entered, it can’t be modified or revoked. Does this Act make any allowance for fraud or concealment on the part of one of the spouses who has property? If it does, I don’t find it in there.

CHAIRMAN READ: I think the answer is that that problem would be covered under the unconscionability sections.

MR. HELLRING [N. J.]: You remember that provision which says that the Court may, on a finding that the agreement is unconscionable, modify it. Certainly evidence of fraud would justify that kind of a finding very easily.

Also, with the permission of the Chair, I’d like to say, Commissioner Needham, that the Reporters are already working on some language which will give further effect to the suggestion you last made.

MR. NEEDHAM [R.I.]: I hope that the suggestion is being taken up by the Reporters not because I made it, sir, but because it does represent, I think, a problem in this area. {156A}

MR. HELLRING [N. J.]: Yes, and the Committee agrees with you.

MR. NEEDHAM [R.I.]: One other situation. Am I correct in interpreting the section now under discussion that a modification may be sought against the legal representative of the decedent? Modification of the support order for children could be sought against the legal representative?

MR. HELLRING [N. J.]: That happens to be the very thing that they were working on.

MR. NEEDHAM [R.I.]: Right. Fine!

MR. BLEWETT [Mont.]: Well, Mr. Chairman, with due respect to the Committee, I think I find a little support here among the group for my position as to whether this adequately allows for discovery of fraud or concealment, and I would like to have it given further consideration. I think the original paragraph that Commissioner Hellring refers to has to do with the power to modify the agreement as presented by the parties, whether it’s unconscionable. I don’t think the language in lines 7 and 8, “The provisions as to property disposition may not be revoked or modified”, covers the point I’m raising, as I see it.

CHAIRMAN READ: The Committee will consider it.

MR. HELLRING [N. J.]: And if you have some language that you would like to suggest — some of the members of the {157A} Committee are saying, “Let’s write it right in,” so we are in agreement with you.

CHAIRMAN READ: May we continue?

MR. GIBSON: Part IV, Custody:

SECTION 401. [Commencement of Proceeding, Jurisdiction.] [If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act,] a child custody proceeding is commenced in the [ __________ ] court

(1) by a parent

(i) by filing a petition for dissolution or legal separation; or

(ii) by filing a petition seeking custody of the child in the [county, judicial district] where the child is permanently resident or where he is found; or

(2) by a person other than a parent, by filing a petition seeking custody of the child in the [county, judicial district] where the child is permanently resident or where he is found, but only if the child is not in the physical custody of one of its parents.

At this point we revert to the page 21 that is in your books. The next section is Section 402. {158A}

CHAIRMAN READ: Will you comment on 401? [No one responded.]

MR. GIBSON:

SECTION 402. [Best Interests of Child.]

(a) The court shall determine custody in accordance with the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors including

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;

(4) the child’s adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. {159A}

CHAIRMAN READ: Will you remark?

MR. GIBSON: It has been called to my attention in line 2 that the little (a) should be taken out, because there is no (b).

SECTION 403. [Temporary Orders.]

(a) A party to a custody proceeding may move for a temporary custody order, and must submit an affidavit (Section 410). The court may award temporary custody pursuant to Section 402 after a hearing, or, if there is no objection, solely on the basis of the affidavits.

(b) If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated unless a parent or the child’s custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interests of the child require that a custody decree be issued.

(c) If a custody proceeding commenced pursuant to Section 401 (1) (ii) or (2) is dismissed, any temporary custody order is vacated.

CHAIRMAN READ: Will you comment? [No one responded.]

MR. GIBSON: {160A}

SECTION 404. [Interviews.]

(a) The court may interview the child in chambers to ascertain the child’s wishes as to his custodian. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case.

(b) The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination any professional personnel consulted by the court.

CHAIRMAN READ: Will you comment?

MR. SHOEMAKER [Denver, Colo.]: It’s my previous understanding of the section involving providing legal counsel for a child with respect to support or custody that the Act considered it was appropriate to provide legal counsel, and I wonder, with respect to line 3, why the word “may” is used, instead of “shall”.

MR. HELLRING [N. J.]: Well, for one thing, that sentence refers not only to counsel for the child in those instances where the Court decides to appoint an attorney to represent the child, but it applies to all counsel. {161A}

MR. SHOEMAKER [Colo.]: I understand that, but if the Court has appointed counsel for the child, is it contemplated that the Court decides whether or not we are going to permit that counsel for that child to be present or not?

MR. HELLRING [N. J.]: I would certainly think so. You see, the Court has the discretion to appoint him in the first place, and if the Court wants to limit the degree of his appointment in this respect — namely, to have an opportunity for the Court to interview the child without counsel — it may be that it will happen only in the rarest cases, but there seems no reason to deny that flexibility and discretion in the matter.

MR. MERRILL [Okla.]: May I add to the explanation of Commissioner Hellring the point that our advisors have sold us that on certain occasions and under certain circumstances it may be highly undesirable for the child to be bothered by lawyers, even his appointed counsel, and this is intended to give the Court discretion in instances of that sort, under the obligation to keep a record which will be available to the counsel in the case.

MR. SHOEMAKER [Colo.]: Try to get that passed in our Legislature!

CHAIRMAN READ: Section 405.

MR. MERRILL [Okla.]:

SECTION 405. [Investigations and Reports.]

(a) In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child. The investigation and report may be made by [the court social service agency, the staff of the juvenile court, the local probation or welfare department, or a private agency employed by the court for the purpose].

(b) In preparing his report concerning a child, the investigator may consult any person who may have information about the child and his potential custodial arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child’s custodian; but the child’s consent must be obtained if he is of sufficient age and capable of forming independent judgements, and in any event if he has reached the age of 14. If the requirements of subsection c) are fulfilled, the {163A} investigator’s report may be received in evidence at the hearing.

(c) The court shall mail the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (b), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom he has consulted for cross-examination. No party may waive his right of cross-examination prior to the hearing.

MR. NEEDHAM [R.I.]: Just one question, sir. In the subsection (b) which we have under consideration who is to determine which child in a specific instance, and how is it determined as to which child’s consent must be given prior to age 14?

MR. MERRILL [Okla.]: I did not catch your subsection.

MR. NEEDHAM [R.I.]: Commissioner Merrill, I’m referring to the situation where a court gives an order to investigate, or where he may have the child examined by professional {164A} personnel for diagnosis.

MR. MERRILL [Okla.]: I think you are a section ahead of us. We are on Section 405.

MR. HELLRING [N. J.]: Line 14.

MR. MERRILL [Okla.]: Oh, yes, yes. I see where you are now. I misunderstood you, because I thought you referred to subsection (d). You are referring to subsection (b)?

MR. NEEDHAM [R.I.]: It was (b), sir. Who is to determine which child under 14 is of sufficient age and capable of forming independent judgements?

MR. MERRILL [Okla.]: This would be the Court, I think.

MR. NEEDHAM [R.I.]: Where is the method or the procedure set out here for the investigation or to get such a determination?

MR. MERRILL [Okla.]: This I think we have to leave to the ingenuity and the ability of the trial Court. This is one of many such judgements.

MR. NEEDHAM [R.I.]: Why, sir, do you say that the investigator may consult the medical or psychiatric — and so forth — who have served the child in the past without obtaining the consent of the parents? The investigator need not obtain the consent of the parents?

MR. MERRILL [Okla.]: Yes. {165A}

MR. NEEDHAM [R.I.]: Then there is a semicolon, and I suggest the subject of the semicolon is still the investigator, and that it is he who must have the child’s consent.

Now, does he make the judgement that the child is of sufficient age? Suppose the child is ten, and the investigator says, “I don’t want to bother your father and mother, but I’d like to have you see a doctor.” And he says, “I think you are able to go see a doctor, and I want you to go see a doctor.”

MR. MERRILL [Okla.]: If the Court determines — with those words inserted, would it change the section sufficiently to suit you?

MR. NEEDHAM [R.I.]: My situation is that without some judicial proceeding, the person of anybody under the age of fourteen ought not to be subjected to a medical or psychiatric or any other kind of an examination. I think it should be written in, if you are going to have a psychiatric examination given to anybody under the age of fourteen, “by order of the Court.” It ought to be written in that you have an order of the Court.

MR. HELLRING [N. J.]: I think, Commissioner Needham, that the last point you made is taken care of in the sentence before, which starts on line 10 and runs to line 11. I think that’s fully taken care of. {166A}

As a matter of fact, if I understand your point correctly, it would be that you are happy with the way we do it in that sentence, where it requires an order of the Court for the investigator to refer the child to professional personnel for diagnosis.

I think when this section was originally drafted that sentence and the next one were somehow in a different juxtaposition, but the way they are now the Committee feels that your point on the sentence which includes line 14 is very well taken, and the Committee will consider a revision of the language to make an appropriate provision.

MR. NEEDHAM [R.I.]: Thank you, sir.

MR. SHOEMAKER [Colo.]: Mr. Chairman, is there some significance attached to the age of fourteen on line 16 of page 23?

MR. MERRILL [Okla.]: This is the age at which, by the laws of many states if not all, a child is regarded as having sufficient intelligence and understanding to choose his own guardian, to consent to his own adoption, and so on.

MR. SHOEMAKER [Colo.]: Why isn’t that included under the best interests of the child as a relevant factor in Section 402, then? Why isn’t the age of the child a relevant factor? I don’t think you mean that the mental and physical health relate to age. {167A}

CHAIRMAN READ: I would think that in 402 the requirement that the wishes of the child at any age should be taken into account recognizes that the Court is going to pay more attention as the child gets older.

MR. SHOEMAKER [Colo.]: So the age of the child — wouldn’t that be a relevant factor under 402, then? Shouldn’t that be listed as a relevant factor with the other five?

MR. MERRILL [Okla.]: The Committee will consider that. I’m not quite sure we would be convinced.

MR. SHOEMAKER [Colo.]: Well, under proceedings now it’s a factor, isn’t it? So why wouldn’t it be a factor in this proposed law?

MR. CALLOW [Wisc.]: Including but not limited to is, really, what you mean, I think.

MR. SHOEMAKER [Colo.]: Right.

MR. BURDICK [N. Dak.]: Your requirement for consent of the child fourteen years of age to this examination presupposes that the child is of normal mentality. He may not be. I would think your first requirement there is the intelligence and understanding, and that ought to be an adequate criterion, rather than requiring consent of a child who is a moron, or subnormal in some respect.

MR. HELLRING [N. J.]: Judge Burdick, I think that sentence {168A} which contains the requirement of the approval of a child over fourteen has to do only with getting information. It has to do only with the investigation, or being able to obtain information from medical, psychiatric, or other expert persons who have in the past served the child.

MR. BURDICK [N. Dak.]: That’s my point. The child may be a moron and an incompetent, and here you are requiring his consent where obviously it would be futile.

MR. HELLRING [N. J.]: You are talking about it as if you were listening to what the Reporters were just telling me, because in the method of solution for Commissioner Needham’s last point the language is going to be reworded to take care of yours, because it will provide unless the Court finds even below fourteen he hasn’t got the capacity.

CHAIRMAN READ: Section 406.

MR. MERRILL [Okla.]:

SECTION 406. [Hearings.]

(a) Custody proceedings shall receive priority in being set for hearing.

(b) The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems necessary to determine the best interests of the child. {169A}

(c) The court without a jury shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child’s best interests, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

(d) If the court finds it necessary to protect the child’s welfare that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.

MR. KEELY [Denver, Colo.]: I have several questions. If a proceeding is commenced by a parent by filing a petition for dissolution or legal separation, I assume that the child custody proceeding is part of the divorce — pardon me — of the proceeding for dissolution or legal separation. It doesn’t say that, but I think that’s what it means.

MR. MERRILL [Okla.]: This is clear.

MR. KEELY [Colo.]: Now, if it is commenced otherwise, you have provided for hearings. Who are the parties at the hearings? Who will be served notice of this hearing of the petition? Will the parents, if it’s someone other than a {170} parent? Who gets to appear? Who gets to submit evidence? Who gets to file a response to the petition, and so forth?

Perhaps I’m overlooking something, but I think that should be covered.

MR. MERRILL [Okla.]: Thank you. The Committee will consider it, if we have not thoroughly covered it.

CHAIRMAN READ: Section 407.

MR. MERRILL [Okla.]:

SECTION 407. [Visitation.]

(a) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation by the parent would endanger the child’s physical health or significantly impair his emotional development.

(b) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical health or significantly impair his emotional development.

CHAIRMAN READ: Will you comment? [No one responded.]

MR. MERRILL [Okla.]: {171A}

SECTION 408. [Judicial Supervision.]

(a) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and religious training, unless the court finds, after motion by a non-custodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical health would be endangered or his emotional development significantly impaired.

(b) If both parents or all contestants agree to the order, or if the court finds that in the absence of the order the child’s physical health would be endangered or his emotional development significantly impaired, the court may order the [local probation or welfare department, court social service agency] to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out.

CHAIRMAN READ: Comments? [There were none.]

Section 409.

MR. MERRILL [Okla.]:

SECTION 409. [Modification.]

(a) No petition to modify a custody decree may be filed earlier than one year after the date of the initial {172A} decree. If a petition for modification has been filed, whether or not it was granted, no subsequent petition may be filed for 2 years after disposition of the prior petition, unless the court decides on the basis of affidavits (Section 410), that there is reason to believe that the child’s present environment may endanger his physical health or significantly impair his emotional development.

(b) [If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act,] the court shall not modify a prior custody decree unless it finds upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custodian established by the prior decree unless

(1) the custodian agrees to the modification;

(2) the child has been integrated into the family of the petitioner with the consent of the custodian; or {173A}

(3) the child’s present environment endangers his physical health or significantly impairs his emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

MR. MILLER [La.]: May I ask a question? Who may seek to modify a custody decree? Can the Court on its own motion do so? And further, can some other person other than the parties do so, such as the grandparents or a friend?

I have in mind that the Court on its own motion might well, before a year elapsed, come across facts that would require a modification.

PROFESSOR KAY: I would assume that since it’s subject to the jurisdiction of the Court, the Court could make such orders on its own motion as it thought were necessary. The thrust of the draft is that no independent person will be able to modify that decree within a year, but if circumstances arise that require immediate measures to be taken for the protection of the child, the Juvenile Court presumably would be available.

MR. HELLRING [N. J.]: Could I just comment on that last question by Judge Miller?

As Commissioner Merrill has pointed out, Section 401 {174A} tells us who is appropriate to file petitions for custody in the first instance, and, of course, those people appropriate with respect to any petition for custody, even a petition for modification, because it is still a petition for custody. If any changes take place in the status of the parties, such as death, which may affect that, then that may be an answer to your question.

I notice that in your comment, however, Judge Miller, you referred particularly to the first sentence of 409 — namely, the one-year limitation — and, of course, there the purpose of the Committee was to put some finality, at least for a period of a year, on a custody decree, so as to do something toward at least obviating to some extent the unseemly litigation which has existed throughout the country in these disputes.

MR. MILLER [La.]: I think that would be fine, if the Court itself can modify it within the year, if facts are brought to his attention by friends or by other relatives of the child, and the Court on its own motion could modify it within the year. It’s fine to restrict the parties to waiting at least a year.

MR. HELLRING [N. J.]: There is always the escape valve of an application to the Juvenile Court, to a different court, where there is some extreme circumstance of impropriety in the {175A} custodial situation.

MR. MILLER [La.]: I would think this Court should have it.

MR. HELLRING [N. J.]: Well, I can only comment on that at this time that the Committee was troubled by this question, and dealt with it at great length, and , indeed, there were suggestions of making the period longer than a year during which no application for modification could be made. There was an enormous amount of evidence presented to the Committee by the advisors to the Committee and various professional advice along this line, to try to do something in this Uniform Act to discourage relitigation — early, quit relitigation of custody decrees, in order to give the custodian and the child a limited period at least to try it out.

MR. JOINER [Mich.]: Mr. Chairman, I don’t think that the language that’s drafted by the Committee necessarily precludes what Commissioner Miller desires, because the language drafted by the Committee simply proscribes a petition to modify, and does not limit the Court’s power to modify.

I am more troubled, however, by the second sentence in this Section 409 (a), which proscribes a second modification within two years, and I really think what is meant there, if I understand correctly, is a second effort to modify by the same person. You permit custody matters to be opened {176A} up by either party or by some outside person initially. The same thing could happen here, and I would suppose you would not want to proscribe a legitimate claim for modification on something that had never been presented to the Court before.

MR. HELLRING [N. J.]: I take it your question would be solved if on line 4 after the word “petition” we were to insert the words “by the same party”.

MR. JOINER [Mich.]: Yes.

MR. HELLRING [N. J.]: “. . . no subsequent petition by the same party”. With the permission of the Chairman and the Committee, perhaps we could consider that. Are we ready to accept it? [Conferring]

The Committee has conferred, Commissioner Joiner, and they accept your suggestion.

CHAIRMAN READ: Section 410.

MR. MERRILL [Okla.]:

SECTION 410. [Affidavit Practice.] A party seeking a temporary custody order or modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. The court {177A} shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

MR. VESTAL [Iowa]: I’m a little troubled by your parties here. You say “other parties to the proceeding,” and this goes back to 401, where you have the people who start this, but who are the defendants or the other parties who participate in this?

MR. MERRILL [Okla.]: This was a matter, Commissioner Vestal, which, you will recall, was raised a bit ago, and we said we would give thought to proper phrasing of the parties.

MR. VESTAL [Iowa]: All right, then. Go back to 409, where you put in “by the same party”. If you have somebody that participated as a defendant, isn’t he obligated to present his arguments at that time, so that he then would be barred even though he has not initiated the action? He has presented his arguments, and he should be barred too, shouldn’t he?

MR. MERRILL [Okla.]: You don’t want it to go farther, you mean?

MR. VESTAL [Iowa]: I want him to present his arguments the first time, and when he has presented his arguments he {178A} should be barred.

PROFESSOR KAY: But we are assuming a change in circumstances, so it isn’t the type of situation where you necessarily could raise for the first time all the arguments that might be relevant later.

MR. VESTAL [Iowa]: You simply say “no subsequent petition by the same party”. You don’t say for different grounds.

PROFESSOR KAY: Well, it says “for 2 years”.

MR. HELLRING [N. J.]: I take it you are addressing your question, Commissioner Vestal, to Commissioner Joiner’s suggestion which the Committee just adopted.

MR. VESTAL [Iowa]: No, I’m raising a question about his insertion there “by the same party”.

MR. HELLRING [N. J.]: That’s what I mean. You are opposed to what the Committee just did in accepting Commissioner Joiner’s suggestion?

MR. VESTAL [Iowa]: Exactly.

MR. HELLRING [N. J.]: Let me say to you, then, that the Committee will consider it further. It did occur to us when Commissioner Joiner made his points that, let’s say, the wife got the custody in the first place, the husband files a petition, and the wife contests it, and there’s no modification. She keeps the custody. {179A)

Now, then, she’s not going to be making an application for a change in custody, because she’s still got it; but if she should pass away in the interim, and someone else — perhaps her parents or someone — wants to make an application, that may be by a different party, you see.

MR. VESTAL [Iowa]: My idea here is that if you intend to have litigation between the two parties, and the husband presents his case, and it’s adjudicated on that, and there is no factual change, then I think he should be precluded and not be allowed, even though here you talk about a subsequent petition by the same party. I think he should be barred.

MR. HELLRING [N. J.]: You like it the way we had it in the first place?

MR. VESTAL [Iowa]: Exactly.

MR. HELLRING [N. J.]: Well, why don’t we give it further consideration?

MR. NEEDHAM [R.I.]: There are two things I’d like to cover in the same vein. I don’t think that modification of an existing decree of custody can have anything but the two original parties to the decree of custody.

Now, it may be in some other proceeding that the Juvenile Court may elect to terminate custodial rights, but this is not in this particular Court, nor in this particular {180A} proceeding. The jurisdiction, as I understand it, is either independent of a right to dissolve the marriage or is ancillary to a right to dissolve the marriage. There are but two parties to the transaction, the husband and wife.

In the hypothesis just made a moment ago about the wife dying and the grandparents wanting to have custody of the children against the father who was denied custody in the divorce proceeding, I suggest that in most jurisdictions such a right would be raised by habeas corpus in an entirely different forum with an entirely different procedure, and I suggest that while we have many, many people who help us in determining custody, in the last analysis when you refer back to 401 you only have two parties to the modification petition. You are modifying an existing decree between two parties, and only two.

MR. SHOEMAKER [Colo.]: Couldn’t there be three parties to a modification? What if we had this situation where an attorney was appointed for the child? Could the child use that attorney to seek modification?

CHAIRMAN READ: I think the Committee has stated back several sections that it is considering identification of just who all these parties may be, and until they complete that reconsideration I don’t think we’re moving forward by {181A} debating who conceivably might be a party.

MR. MERRILL [Okla.]: Part V is a provision which has been added primarily for the purpose of gaining statistical information. This is the sort of matrimonial statement that is to be utilized in the state office. It is not to be made public. The entire thing is in brackets, I am requested by my advisors to say, from beginning to end. If a state does not want to be in the position of keeping a repository of information that can be used to study the various incidents resulting from marriage and divorce, it is not required to take this Part.

[SECTION 501—

MR. JOINER [Mich.]: Mr. Chairman, is it in order to move that the reading of this matter be waived?

CHAIRMAN READ: The Chair finds it in order, yes.

MR. JOINER [Mich.]: I so move.

MR. DANA [N.Y.]: If you will look at line 3 at the beginning of Section 501, it says that this form shall include the following information, and if you look back at page 3 of your book you will see that the person cannot get a license unless the form includes the following information: date and place of birth.

Suppose the groom was a foundling? He never could fill that out. Suppose he had no Social Security number? {182A} Technically the clerk could not give him a license.

In line 3 I suggest you say that the form shall include, to the extent available, the following information.

Similarly, in 502 the person could never apply for a divorce unless it had included every bit of the information.

PROFESSOR KAY: We’ll take that under advisement, but we’re saying here only what the form should have blanks for. This makes no requirement that all the blanks have to be filled in, and in the case you provided the blanks could be filled in by “unknown” or “unavailable”, or some such statement.

MR. DANA [N.Y.]: I respectfully differ. My point is exactly that it says that the form as filed shall include the following information. It doesn’t say that the form shall list the following categories or questions.

PROFESSOR KAY: Well, that’s what’s meant, and we’ll change the language to make it show that.

MR. LANGROCK [Vt.]: I don’t like the entire concept. I think we are getting much too much information on individuals today. But particularly (vi) I don’t like, and (viii) I don’t feel should be in either. In the first place, I don’t think it is accurate. It calls for a somewhat embarrassing question to the young lady, and at least in Vermont, I’m sure they don’t always know the answer to that question at that point.

MR. HELLRING [N. J.]: Commissioner Langrock, I think it’s important to emphasize this to you that ‘way back in Section 203 of this entire proposed Act the requirement for a matrimonial information statement as a prerequisite for the granting, or for the issuance by the marriage license clerk of a license to marry is put in brackets, and therefore this whole Part V is in brackets, and the Committee is presenting this only as a section for those states which are interested in this kind of statistical information.

MR. LANGROCK [Vt.]: Just because it’s in brackets, there’s no reason why the Conference should adopt something which we think is inferior.

MR. HELLRING [N. J.]: I agree with you.

MR. LANGROCK [Vt.]: And I would ask the Committee to reconsider the necessity of both (vi) and (viii).

CHAIRMAN READ: Having heard those comments, is there objection to waiving the reading of the remainder of the bracketed provisions?

MR. TOWNSEND [Ind.]: I think there’s one thing that’s terribly dangerous here, and I think it goes to a question of personal dignity, and that is: if you key this into the Social Security numbers, which was suggested earlier, and allow this information to be ultimately traced back to the individual, {184A} I think it’s a damnable thing, and I don’t think this sort of information should be allowed or that this group — particularly — should sponsor it.

MR. DAVIES [Minn.]: I’m glad that the Committee is considering (viii) about pregnancy, but we are also skipping over material on page 29. I think (vii) and (ix) there are very interesting provisions to have going into some computer somewhere, to be traced back to the individual, a statement of what the party believes caused a breakdown in the marriage, and whether and for how long either party has ever obtained professional counseling for the marriage, and, if so, from whom. I think we have to regard our privacy to some extent.

PROFESSOR LEVY: I’d like the Commissioners to note that Section 503 on page 30 here is a very carefully drawn, very thoroughly put out confidentiality section. We have been sitting here for several days, and the Committee has sat for several years trying to figure out what to do about marriage and divorce, and by general acknowledgment the greatest problem, including differing values, was that we don’t know enough. Nobody knows enough to know what we should do about regulating marriage, or what to include in an Act on Divorce.

This is an effort to try to put down, for the option of states that want it, an opportunity to find out something {185A} about marriage and divorce in their states, so that they can regulate it on the basis of more accurate information.

MR. KASS [Wash., D.C.]: In answer to the comment about the confidentiality, our federal income tax records are also confidential, and yet are made available to every state and local law enforcement agency.

I object strongly to this whole concept, and unless I can hear personally a justification as to why this type of statistical information is needed, I wouldn’t be for its inclusion.

MR. HELLRING [N. J.]: Are you moving?

MR. KASS [Wash., D.C.]: I’m not moving yet. I’m seeking justification as to why this section appears.

We ask questions about race and religion which I think should not be included in this information — pregnancy, as Commissioner Davies has pointed out — and there is other material. We add our Social Security number, which goes into the computer data.

MR. HELLRING [N. J.]: Well, perhaps I can restate what Professor Levy has said from the standpoint of the members of the Committee in a way which will make clear to you why you find this in here at all, and that’s what I gather is the import of the question: what is all this doing here? {186A}

It is not here because it has anything to do with a Uniform Act on Marriage and Divorce from the standpoint of how do you get married and how you get a divorce or a dissolution of marriage or a declaration of invalidity or disposition of property or maintenance or custody or support — none of those reasons. It’s in here for one reason.

We got a great deal of benefit from the advice and deliberations of a number of experts, an advisory group which was put together largely by the former Executive Director of this Conference, Allison Dunham, and by the Reporters and other officials of the Conference. During the course of our meetings with these advisors, some of them impressed us and pressed upon us very sharply the absence of any statistical information in this field from which, on the basis of which, these various experts — and apologists, psychiatrists, psychologists — could make empirical studies as to what were the causes of breakdown in marriage, what were the statistics with respect to the happiness and unhappiness of children of divorced parents, and so on. They pressed upon us the fact that, as responsible citizens and Commissioners from the various states, we had another duty in promulgating this statute in addition to the promulgation of a proposed Uniform Act, and that we had the obligation of providing some machinery for those states who {187A} wanted it to begin a data gathering — statistical data gathering — procedure.

Some of us on the Committee opposed it with the same vigor, Commissioner Kass, that you are. Some of us didn’t care about it one way or the other, and others were impressed by it. There was a considerable difference of opinion among the members of the Committee, and as a result this format was worked up, and the Committee agreed to present it only so that such states, and the legislatures of such states, as wanted it would take it. But you are perfectly free, if you want to do it, to seek to test the sentiment of this house as to whether the Committee of the Whole wants to bring to the Conference an Act which contains this, even in brackets; and, really, there’s nothing to add to how it got here but what I just said.

MR. KASS [Wash., D.C.]: I appreciate the answer, Mr. Chairman. I’m terribly concerned that this Conference not go on record as supporting the creation of data banks which will invade the privacy of American citizens.

MR. McKUSICK [Maine]: I’m concerned also about this, and it seems to me that, taking the very able explanation that Commissioner Hellring has made of it, all this information that is listed in here doesn’t stand up under the test of being {188A} necessary for that kind of statistical study that is being made.

I think, to me, the vice here is that the information is tagged to individuals. It isn’t like the questionnaire that we all often receive, and it says, “You may return this without signing it”; in other words, so that the anonymity will be maintained.

And as you go down through it, you have such things as names of children and names of the attorneys and the Social Security number, and so on and so forth, and it just beats one to know for what possible statistical purpose that is to the researcher, and, really the only purpose is for the nosey individual who wants to tag it down in some way.

I would think that this would be a whole lot less offensive if some attempt were made to make the information blind, cold data, rather than having it identifiable with individuals.

MR. HELLRING [N. J.]: Commissioner McKusick, I think the question, however, is posed very clearly in the way in which it’s put, because if we tried to reduce the amount of statistical data, we’d run into some — I know we ran into some difficulty in the Committee. Some of us asked the very same questions, and for precisely the same reasons. Why do you need the names {189A} of attorneys?

Well, you do, because if a sociology major or someone else wants to go to a given community and make a study, if he goes through the list and sees that certain lawyers or law firms handled 90 per cent of the divorce cases in the community, then he can get all his information very quickly.

Now, I’m not making this up. This is exactly the answer we got to the precise question you asked.

MR. McKUSICK [Maine]: All the sociology major has to do is to go down to the Courthouse and see who is the attorney of record.

MR. HELLRING [N. J.]: In a big city that’s very difficult. How are you going to do that in Cook County?

MR. JENNER [Ill.]: I can tell you how you do it in Cook County. You go down to the Courthouse.

MR. HELLRING [N. J.]: I don’t want to have my slip showing as to how I feel about this, but I think the question is clearly stated.

MR. DUNHAM [Ill.]: I share much of the other opinions, but assuming that there is an objective of collecting certain kinds of information for statistical research purposes, this seems to me not to be the correct way of going about it; that is, putting in the statute a mandatory list of questions which must be {190A} asked. It may or may not be necessary to have all this information for a statistical type of purposes, and it seems to me the proper procedure is to set up some kind of an administration where a widely based board can approve and construct the type of information they want at the particular time they ask the questions, just as the Census Bureau prepares a new list every ten years.

MR. CALLOW [Wisc.]: Mr. Chairman, since nobody is speaking in favor, I would call the question.

CHAIRMAN READ: The question is on the motion to strike all of Part V.

MR. RUUD [Tex.]: Mr. Chairman, I think some defense of what was put in here should be made. It wasn’t put in here merely irrationally, and the names were not included out of some sort of pique. I think there is a great deal of — this is a sensitive question, but the rationale for having the name of the bride and the groom, for example, in the matrimonial information statement and some of this other was so that you could match marriage records and divorce records.

Now, there may be some way you can do this in a way that conceals the identity, and I wish we could, but I don’t think at this hour we can work that out.

[Calls for the question] {191A}

CHAIRMAN READ: The question is on the motion to strike Part V.

[The motion was put to a vote and was carried without a dissenting voice.]

CHAIRMAN READ: We strike Part V. The reading of Part VI was waived, I believe. Is there objection?

MR. JENNER [Ill.]: Well, you do come to matters of substance in this Part. I suggest that the Committee rise and ask leave to have another session, because to waive at this late hour the By-Laws of the Conference, which require a reading of all sections line by line, I think is quite unwise.

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

CHAIRMAN READ: The question is on the report of the Committee of the Whole.

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

* * * * * * * * *

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Clayton, Missouri

Tuesday Afternoon, August 4, 1970

Mr. Harold E. Read of Connecticut presiding;

Mr. Maurice H. Merrill of Oklahoma presenting the Act.

CHAIRMAN READ: We’ll start with the beginning of Part VI, some of which is more or less boilerplate, but we’ll read the whole thing.

MR. GIBSON [Kansas City, Mo.]: This part of the Act is in the book, page 30, Part VI, which will be renumbered Part V.

SECTION 601. [Effective Date.] This Act shall take effect on ( ________ ).

SECTION 602. [Application.]

(a) This Act shall apply to all proceedings commenced on or after its effective date.

(b) This Act shall apply to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Pending actions for divorce or separation shall be deemed to be filed on the basis of irretrievable breakdown and evidence adduced after the effective date of this Act shall be in compliance with this Act.

(c) This Act shall apply to all proceedings {B2} commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.

(d) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order granting the appeal or the new trial shall govern the appeal, the new trial, and any subsequent trial or appeal.

SECTION 603. [Severability.] If any provision of this Act or application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

MR. ARNOLD [Crossett, Ark.]: Maybe I misread Section 602 (b), but in the last sentence it doesn’t seem to me it reads correctly.

CHAIRMAN READ: We’re reading from the supplement which was distributed.

MR. ARNOLD [Ark.]: “Pending actions for divorce or separation shall be deemed to be filed on the basis of irretrievable breakdown and evidence adduced after the effective date of this Act shall be in compliance with this Act.” Isn’t there a preposition {B3} or something missing?

MR. GIBSON [Mo.]: ” . . .deemed to be filed on the basis of irretrievable breakdown”; you probably have to put a comma after “breakdown”. It could be made a separate sentence. [conferring]

We are striking the “and”, and making a separate sentence starting with the word “Evidence”.

MR. NEEDHAM [Providence, R.I.]: Gentlemen, is there an explanation or some reason why in (d), where a new trial is ordered after appeal — I would assume it goes back to the court of general divorce jurisdiction — why the subsequent trial and appeal would be on the basis of the old law, rather than the new? Or am I reading this incorrectly? Why is that not a pending action?

PROFESSOR KAY: You are reading it correctly, Commissioner Needham. The thought there was that in a case where there has been a prior divorce action before this Act was in effect, and there had been an appeal granted prior to the effective date of this Act, or an appeal had already been determined and a new trial ordered prior to the effective date of this Act, the reason for reversal on appeal or consideration of the appeal was due to an error of the court below in the court below, and they ought to have a chance to correct that under the old law, prior to the time this new Act was put into effect. {B4}

MR. NEEDHAM [R.I.]: Thank you.

MR. MILLER [Baton Rouge, La.]: Is there any constitutional problem posed in (c) with respect to modification of a judgment or order relating to property, particularly real property?

PROFESSOR KAY: The Act provides, Judge Miller, that the disposition of property cannot be modified unless it subsequently be reopened for fraud. So that substantive provision in the Act will take care of that.

MR. MILLER [La.]: That’s in some other section?

PROFESSOR KAY: That is correct.

MR. AUSTIN [Watertown, S. Dak.]: Does the term in subsection (d), “order granting the appeal” — exactly what is meant by that? An order reversing the decision?

I suggest a style change, or rewording.

MR. GIBSON [Mo.]: ” . . . an order sustaining the appeal”.

SECTION 604 [Specific Repealer.] The following acts and all other acts and parts of acts inconsistent herewith are hereby repealed: (Here should follow the acts to be specifically repealed, including any acts regulating:

(1) marriage, including grounds for annulment and provisions for void marriages;

(2) existing grounds for divorce and legal {B5} separation;

(3) existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity and lapse of time; and

(4) alimony, child support, custody and division of spouses’ property in the event of a divorce and judicial proceedings designed to modify the financial or custody provisions of divorce decrees.)

SECTION 605. [General Repealer.] Except as provided in Section 606, all acts and parts of acts inconsistent with this Act are hereby repealed.

SECTION 606. [Laws Not Repealed.] This Act does not repeal:

It has been suggested that it’s not necessary to read this.

CHAIRMAN READ: That brings us to the end of the original text of the Act.

MR. DAVIES [St. Paul, Minn.]: Mr. Chairman, is it the intent of Section 605 to rely on that general repealer?

CHAIRMAN READ: No, there is a specific repealer.

Commissioner Merrill will read revised sections, some of which are on your desk, but most of which, I’m afraid, we’ll {B6} have to let you refer to your books and correct as you go along.

MR. MERRILL [Norman, Ok.]: If the Committee please, I should like to go first into a little review of the matters that will be before you with reference to how you find the Parts I and II of the draft which, in a revised form, were placed on the tables yesterday; and we will follow those Parts through the revised form.

In Part III, Sections 301 to 303 inclusive represent material which has been substantially redrawn, as a result of the suggestions yesterday, coupled with proposals which were received from Messrs. Buerger, Jestrab, Burdick, and Pence.

A[s] you will note when we come to present the matter, we do not feel that we could adopt substantially and specifically the proposals which they made, but we believe we have covered everything that they could desire on the basis of the votes that were taken yesterday.

Then on Sections 304 and 305 we shall refer you, for purposes of following what was done, to the book and the material as it appears in the book on this Act.

Sections 306 through 401 are based on material previously distributed and placed on your desks which you have, and you will refer to that.

For Sections 402 through 408 inclusive we shall again {B7} have to refer you to the books, due to a hangup with the stenographic service; and then, from thereon to the end, we have the distributed material on your desks, and we will work from that.

The procedure which I should like to follow, with the permission of the Committee, is this. We went at great detail yesterday over many, at least — practically all — of the provisions of this Act. Many were passed without substantial comment or suggestion. On others, of course, there were either votes as to what should be done, or there were suggestions which we said we would take under consideration, and as we go through I would like, in respect to those sections, to call your attention to what the Committee has done; and with regard to those as to which no change has been indicated, I should like simply to be able to state that, and unless some member of the Committee desires to take something up that has not been raised before, we crave your consideration to let those go as read.

Are you now ready? [No one responded.]

Section 101, then, Part I, the new material on your desks, is, of course, the short title, and has not been changed.

In Section 102 there is no change.

In Section 103 there is, as I understand it, no change. It has been modified, I should say, to conform to Conference style, but that, of course, was taken up yesterday and agreed to. {B8}

Section 201 does contain a change which is intended to take care of some problems that were raised yesterday.

SECTION 201. [Formalities.] A marriage between a man and a woman licensed, solemnized and registered as provided in this Act is valid in this state.

You will note that it now reads “between a man and a woman”; this rules out the suggestion of a claimed homosexual marriage.

MR. BURDICK [Williston, N. Dak.]: I wonder if you shouldn’t use “male and female”. Because “man” might connote that the individual has reached maturity; and “woman” may mean the same thing.

MR. MERRILL: We have, of course, limits to it.

MR. BURDICK [N.Dak.]: I understand, but it seems to me that this is somewhat limiting.

MR. MERRILL: That is not the Committee’s view. Do you wish to press it? [Mr. Burdick did not respond.]

Section 202 covers the changes which were ordered yesterday as a result of certain discussion. The title is unchanged.

SECTION 202. [Marriage License and Marriage Certificate.]

(a) [The Secretary of State, Commissioner of Public Health] shall prescribe the form for an application {B9} for a marriage license which shall include the following information:

(1) name, sex, address, social security number, date and place of birth of each party to the proposed marriage;

(2) if either party has previously been married, his married name, the date, place and court in which the marriage was dissolved or declared invalid or the date and place of death of the former spouse;

(3) name and address of the parents or guardian of each party;

(4) whether the parties are related to each other and, if so, their relationship;

(b) [The Secretary of State, Commissioner of Public Health] shall prescribe the forms for the marriage license, the marriage certificate and the consent to marriage.

Now, in Section 203 there are several changes.

SECTION 203. [License to Marry.] When a marriage application has been completed and signed by both parties to a prospective marriage and at least one party has appeared before the [marriage license] clerk {B10} and has paid the marriage license fee of [$______ ], the [marriage license] clerk shall issue a license to marry and a marriage certificate form upon being furnished:

(a) Satisfactory proof that each party to the marriage will have attained the age of 18 years at the time the marriage license becomes effective, or will have attained the age of 16 years and has either the consent to the marriage of both parents or guardian, or judicial approval (Subsection (a) (1) of Section 205) or, if under the age of 16 years, has both the consent to the marriage of both parents or guardian and judicial approval (Subsection (a) (2) of Section 205); and

(b) satisfactory proof that the marriage is not prohibited (Subsection (a) of Section 207); [and]

[(c) a certificate of any medical examination required by the laws of this state].

We strike out (d), the Matrimonial Information Statement, and so on, in response to the action which was taken last evening.

I am also reminded that the language giving information where certain advice could be obtained, and how important it was, and so on, was struck also in accordance with the vote of the {B11} Committee earlier.

SUBSECTION 204. [License, Effective Date.] A license to marry becomes effective throughout this state 3 days after the date of the issuance and expires 180 days after it becomes effective, unless the [ ___________ ] court orders that the license will be effective when issued.

This represents, of course, that compromise which seemed to evolve out of the discussion as to when a license should become effective and how long it should last.

SECTION 205. [Judicial Approval.]

(a) The [ __________ ] court, after a reasonable effort has been made to notify the parents or guardian of each underaged party, may order the [marriage license] clerk to issue a marriage license and a marriage certificate form

(1) to a party aged 16 or 17 years who has no parent or guardian or has no parent capable of consenting to his marriage, or whose parent or guardian has not consented to his marriage, or

(2) to a party under the age of 16 years who has the consent to his marriage of both parents, if capable of giving consent, or his guardian only if the court finds that the underaged party is capable {B12} of assuming the responsibilities of marriage and the marriage would serve his best interests. Pregnancy alone does not establish that the best interests of the party would be served.

(b) The [ ____________ ] court shall authorize performance of a marriage by proxy upon the showing required by the provisions on solemnization (subsection (b) of Section 206).

Now, the changes here primarily are directed to certain matters that were deemed advisable as a result of a discussion on this section. It is intended to ensure that in either case the underage party is capable of assuming the responsibilities of marriage, as well as that the marriage would serve his best interests.

MR. NEEDHAM [R.I.]: On what I think might be considered a style change, but I’m not sure, I notice in 205 you have qualified — and, I think, properly — the consent of both parties, if capable of giving consent. I would assume that if one party were dead, that would take care of that situation, but I recall the fact that in 203 you required consent of both parents or guardian, and I was wondering if some limitation there could be put in — consent of both parents, if living, or guardian, or judicial approval — so that we won’t run into that situation {B13} where we have only one parent who is willing to give consent, and get judicial approval, when somebody like myself might say it has to be both parents, and since you can’t get both parents, you can’t get a license.

MR. MERRILL: Commissioner Needham, we felt that the reference to Section 205 carried with it — if this is your question, which I take it that it is — we do not have a modification capable of giving consent; is that right?

MR. NEEDHAM [R.I.]: In other words, you feel the judicial approval incorporated in sub (a) complies, if capable, and is read in — incorporation by reference?

MR. MERRILL: Yes.

MR. NEEDHAM [R.I.]: I think that’s very reasonable.

MR. MERRILL: In Section 206, Solemnization and Registration, we have some new subsections which were not present before and did come as a result of the discussion in Committee of the Whole.

(a) A marriage may be solemnized by a judge of a court of record, a public official whose powers include solemnization of marriages, or in accordance with any mode of solemnization recognized by any religious denomination, Indian Nation or Tribe or Native Group. Either the person solemnizing the marriage, or, if no individual acting alone {B14} solemnized the marriage, a party to the marriage shall complete the marriage certificate form and forward it to the [marriage license] clerk.

(b) If a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his proxy. If the person solemnizing the marriage is satisfied that the absent party is unable to be present and has consented to the marriage, he may solemnize the marriage by proxy. If he is not satisfied, the parties may petition the [ ______________ ] court for an order permitting the marriage to be solemnized by proxy.

(c) Upon receipt of the marriage certificate, the [marriage license] clerk shall register the marriage.

I think you will recognize the changes.

SECTION 207. [Prohibited Marriages.]

(a) The following marriages are prohibited:

(1) a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

This is intended to cover both death and separation decree.

(2) a marriage between an ancestor and a descendant, between a brother and a sister, between an uncle and a niece, and between an aunt and a nephew, whether the relationship is by the half or {B15} the whole blood.

(b) Children born of a prohibited marriage are legitimate.

MR. NEEDHAM [R.I.]: Am I also correct that it was the feeling of the Committee — it was raised, I believe, on the floor — some question about a relationship of affinity, particularly aunt and nephew. I would take it that as it now reads the relationship must be by way of blood, and not by way of law.

MR. MERRILL: This was the Committee’s thinking. It is what we thought was the sense of the house.

MR. NEEDHAM [R.I.]: Thank you.

MR. GRAVEL [Burlington, Vt.]: Mr. Chairman, we presently are considering a Uniform Legitimacy Act here in the Conference, and wouldn’t it be best to leave recitations of legitimacy to the Uniform Legitimacy Act?

MR. MERRILL: I think not, Commissioner, for this reason — two reasons. First, of course, we can never anticipate the complete adoption even of our best-drawn Acts, although we might like to. We have in the present draft conditioned some of our references to the Uniform Child Custody Jurisdiction Act, because we couldn’t count on its speedy adoption.

Also, this is an area in which we have certain provisions intended to take care of children, and we feel that, regardless {B16} of what might be done in some other Act, that for the purposes of this Act those provisions ought to apply to children born as in sub (b).

MR. GRAVEL [Vt.]: Thank you.

MR. MERRILL:

SECTION 208. [Declaration of Invalidity.]

(a) The [ __________ ] court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances;

(2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and the other party did not at the time the marriage was solemnized know of the incapacity;

(3) a party was under the age of 16 years and did not have the consent of his parents or guardian and judicial approval (Subsection (a) (2) of Section 205) or was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial {B17} approval (Subsection (a) (1) of Section 205); or

(4) the marriage is prohibited by Section 207.

(b) A declaration of invalidity may be sought by any of the following persons and must be commenced within the times specified, but in no event may a petition for a declaration of invalidity be commenced after the death of either party to the marriage:

(1) for a reason set forth in subsection (a) (1), by either party or by the legal representative of the party who lacked capacity to consent; no later than 90 days after the petitioner obtained knowledge of the described condition;

(2) for the reason set forth in subsection (a) (2), by either party no later than one year after the petitioner obtained knowledge of the described condition;

(3) for the reasons set forth in subsection (a) (3), by the underaged party, his parent or guardian; prior to the time the underaged party reaches the age at which he could have married without satisfying the omitted requirement;

(4) for the reason set forth in subsection {B18} (a) (4), by either party, by the legal spouse in case of bigamous marriages, or by the [appropriate state official], at any time prior to the death of one of the parties.

(d) Children born of a marriage declared invalid are legitimate.

(e) Unless the court finds, after a consideration of all relevant circumstances including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of this Act relating to property rights of the spouses, maintenance, support and custody of children on dissolution of marriage are applicable to non-retroactive decrees of invalidity.

Now, my attention has been called to the fact that, on further consideration, we did collapse the old (c) and (d). So (e) should be (d), and (d) should be (c), at the top of page 8.

MR. ARNOLD [Ark.]: Mr. Chairman, it is my understanding that the effect now of the section would be that under these circumstances that I would like to outline there cannot be an attack made on marriages that are in effect void under Section {B19} 207.

That is, if a man and wife marry and have children and then separate, and the man takes a second wife without the benefit of divorce, the first wife dies, and then the husband dies, the children of the first, legitimate marriage would have no standing either to question the marriage nor to take any steps about it, because of the intervention of the death, which would terminate the right.

MR. HELLRING [Newark, N.J.]: That is a correct understanding of the meaning of lines 20 and 21 of this section, as it now reads.

MR. ARNOLD [Ark.]: I further, now, would understand that in this situation if a man and wife marry and separate, but there is no divorce, and the man then takes a second wife and dies, the first wife is barred from any right to challenge the standing of the second wife. Am I correct in that understanding?

MR. MERRILL: That is correct, bearing in mind that under those situations we will have coming into effect the provisions relating to putative spouses later.

MR. HELLRING [N.J.]: Whether the putative spouse doctrine applies here or not, the answer to your question remains yes, as lines 20 and 21 now read.

MR. ARNOLD [Ark.]: I’m concerned by the language of 209, and I know that we should not jump to that, but somewhere between {B20} the first time I saw that and the way it now reads there have been some insertions; the words “declared invalid”. But apparently it doesn’t change that.

Now, Mr. Chairman —

MR. HELLRING [N.J.]: I’m asked by some of the members of the Committee to inform the Committee of the Whole that the vote of the Committee on these two lines and on this concept which terminates the right to make a challenge for invalidity, or make a challenge of prohibited marriages, which is what you are raising now, Commissioner Arnold — the vote among the Committee was an even vote of six to six, and therefore the Committee, and therefore the Committee did not remove the language. The motion was for an elimination of lines 20 and 21, and for a period at the end of line 19, after the word “specified”; and the motion did not carry by a vote of six to six in the Committee — or maybe a colon after the word “specified” on line 19.

MR. ARNOLD [Ark.]: Mr. Chairman, I would like to move that it be declared the sense of the Conference, or Committee of the Whole, that the language of 208 should be modified in order that the right to question the invalidity of a marriage prohibited by Section 207 would survive, and that the children of a legitimate marriage, or a legal marriage, would have the right to question such a marriage — a second marriage — and that {B21} the death of a party to that so-called putative marriage, or prohibited marriage, would not terminate that right.

MR. CALLOW [Waukesha, Wisc.]: I would like to speak to that motion, only to suggest that we felt — those who voted to defeat the suggestion — that one should not gain by an illegal act; second, that if the marriage could be declared void by a public official the day before death, that right should be preserved after death; and third, the purpose of providing that one might not challenge an act after death meant that one could have some defenses that might die with the deceased, and there could be no defenses to a prohibited marriage, and we felt all interests of justice would be served by permitting the action to survive and the merit of the action to be determined by the court.

MR. BURDICK [N.Dak.]: I would like to make the motion more specific.

MR. MERRILL: Do you wish to amend?

MR. BURDICK [N.Dak.]: I would move the substitute motion that we place a colon at the end of line 19, and strike lines 20 and 21.

MR. HELLRING [N.J.]: Judge Burdick, in connection with that, there might be some other minor language changes required by that; for example, at the end of page 7, the last clause, “at any time prior to the death of one of the parties.” {B22}

So I assume your motion means whatever other language changes may have to be made to conform.

MR. EASTAUGH [Juneau, Alaska]: Mr. Chairman, if I may have the indulgence of the Committee, I would like to refer back to Section 207.

On Saturday afternoon I raised the inquiry to the Committee of whether sub (3) would prohibit marriages between nephews and aunt of those aboriginal cultures of our country. I now find a reference to “Indian Nation or Tribe” has been incorporated in the section relating to solemnization.

Now, I’m not expert on this matter, but I understand that the aboriginal peoples of Alaska have been having such marriages before the white man came, who are now imposing the ethic, as I recall the language used Saturday, upon the original peoples of this country.

Since Saturday I understand that the problem is not related merely to Alaska, but to Polynesian peoples as well as the Indian tribes of the western states.

Has the Committee considered that problem?

CHAIRMAN READ: I thought you were going to tie your comment into the motion on the floor.

MR. EASTAUGH [Alaska]: I’m very sorry. I didn’t realize a motion was pending. {B23}

CHAIRMAN READ: May we hold that for a minute, then?

MR. MERRILL: Then you may go back and possibly have a motion of your own.

MR. NEEDHAM [R.I.]: On the motion, sir, as I understand the effect of the motion, it would be to have a declaration of invalidity available after the death of one of the parties to the marriage. I don’t find any problem with that particular motion if we relate it only to Section 207, what I prefer to call void marriages rather than prohibited marriages, but I think there is great merit to not allowing a collateral attack after the death of one of the parties where there is other than the impediment of 207 present.

It’s my belief that if a marriage is void — you call it prohibited; but if a marriage is void, I think that death ought not to prevent an attack upon the status of husband and wife. I think that if a man marries his sister, and then he dies — I don’t believe that that situation should not open to attack, and I would support the motion if it could be related to Section 207, but I am opposed to the motion if what we are going to do is to allow an attack upon all invalid marriages after the death of one of the parties. I think that an annulment proceeding — and that’s what we are talking about in the other section — where a procedural requirement hasn’t taken place {B24} — I think if we are going to talk about an annulment proceeding, I think death ought to seal that once and for all.

CHAIRMAN READ: Commissioner Arnold, I don’t believe you either accepted or rejected Judge Burdick’s amendment to your motion.

MR. ARNOLD [Ark.]: You are correct, sir, that I didn’t and the reason was that I did not feel that the deletion of the words in lines 20 and 21 would be sufficient of itself, in view of the repeating of the same limitation in lines 35 and 36. My original motion was —

MR. CALLOW [Wisc.]: He’s agreed to take 35 and 36 out too.

MR. ARNOLD [Ark.]: Fine. My original motion, in response to Commissioner Needham, was directed to the marriages under 207 only.

MR. MERRILL: It was not so phrased.

MR. ARNOLD [Ark.]: The motion was so phrased.

MR. NEEDHAM [R.I.]: Would it not be best to try to have the Committee limit your remarks to (b) (4), as it relates to prohibited marriages, and allow the general language to relate to the other areas of annulment?

MR. ARNOLD [Ark.]: Well, if it read that way, I think it probably would, but I don’t think that would be the result if you took it out in 35 and 36, and this is the reason why the {B25} motion was stated as being the sense of the house, and leaving the Committee to accomplish the result.

MR. MERRILL: I should very much like to have a specific direction, so that at the close of this meeting, if it seems appropriate, we can make the proper change.

MR. BURDICK [N.Dak.]: Mr. Chairman, I withdraw my motion to get the sense of the meeting, and the language could be left to the Committee.

PROFESSOR KAY: We could put that sub (4) in a different subsection, so we could make clear that there was no time limit with reference to it.

MR. BURDICK [N.Dak.]: I’m really concerned about sub (4), as Mr. Needham suggests — the prohibited marriages under 207.

MR. ARNOLD [Ark.]: I think we’re in agreement as to what we want, but I do want, as a separate motion or part of this, to preserve this right to people other than just those who were a party to it, or the legal spouse in the case of a bigamous marriage, or a state official. In other words, I want to broaden those who have that right.

I would be glad to have that considered separately.

MR. MERRILL: Well, will you specify your motion?

MR. DUNHAM [Chicago, Ill.]: Commissioner Arnold’s illustration of the children of the first marriage objecting after death to {B26} the second marriage — I’m trying to figure out a situation where it’s important for them to do so. 207 legitimizes various sets of children regardless of the invalidity of the marriage. The putative spouse section, 209, in certain circumstances at least, gives the illegal spouse, if you will, property rights, though perhaps not in one hundred per cent of the cases.

So what we are dealing with, it seems to me, is the case where the second spouse, the illegal spouse, cannot qualify as a putative spouse; but the cutting off of the action therefore validates her marriage status just by the statute of limitations route, if you will.

Aren’t we talking about a very little problem, it seem to me, in this type of situation? It seems to me the policy of getting the litigation concerning marital status and the like out of the way during the lifetime of the parties far outweighs any of these other matters that we are talking about.

MR. NEEDHAM [R.I.]: Mr. Chairman, I think that this is correct, as the gentleman says, if we are only talking about those marriages which are voidable, or which are susceptible to an annulment for failure to satisfy the requirements of consent, et cetera; but when you get into the area of a void marriage, or a prohibited marriage, we are talking about an entirely {B27} different thing, and I think Professor Kay made the suggestion that perhaps we ought to take these two problems — the 207 marriage, which is prohibited — and treat it in a different section.

Now, I concur with that remark. I think that Section 207 marriages, which are taken care of in (b) (4), perhaps ought to be taken care of in another section, where you may provide that they may be attacked at any time by people who have an interest in showing that that was a void or prohibited marriage, and let the justice sitting in that, whether it’s in a probate court or whether it’s in a land court, determine the respective rights. However, I think the Professor’s suggestion is one that would solve my objection.

MR. HELLRING [N.J.]: Would you be satisfied — and I’m putting the same question also to Commissioners Burdick and Arnold — if on line 20 the language read, “but in no event may a petition for a declaration of invalidity (except for marriages prohibited by Section 207) be commenced after the death of either party to the marriage”?

MR. NEEDHAM [R.I.]: And then strike subsection (4) completely.

MR. HELLRING [N.J.]: Not completely, but strike the last phrase of it. {B28}

MR. HOOPER [Chicago, Ill.]: I don’t think that would do what you want, because it wouldn’t bring in the children. I think you have to handle it as a separate paragraph (c).

MR. NEEDHAM [R.I.]: I think it would be clearer to handle (1), (2), and (3), under (b), as you currently have them.

MR. HELLRING [N.J.]: As a separate section (c) ?

MR. NEEDHAM [R.I.]: And then handle the (b) (4) type of situation under 207 under a separate heading which clearly shows a definite cleavage into different categories.

MR. HELLRING [N.J.]: Would you like to see us work up the language and come back to it?

MR. RUUD [Austin, Tex.]: May I speak to the question?

MR. MILLER [La.]: I assume the prohibited marriage, where both parties to it are guilty — that is, both parties had knowledge that it was a prohibited marriage — there was a legal spouse of one, or perhaps of both of the guilty parties — should the death of a guilty party cause that innocent legal spouse to lose property rights? If the death is going to eliminate the right to attack where both parties were in fact guilty, then that means that this second guilty spouse who survived comes in to share and take away from the rights of the legal spouse.

MR. CALLOW [Wisc.]: Profiting from an illegal act. {B29}

MR. NEEDHAM [R.I.]: That’s exactly the problem, sir.

MR. RUUD [Tex.]: What we are trying to do with Section 207 is to influence behavior, is it not? And I wonder how much behavior we influence when one of the parties to the marriage is dead. [Laughter] I suspect we don’t influence much.

I suspect further that the risk — or not — of this provision may not influence behavior much. So I think it’s out of some notion that the person is bad, and I’m not certain that’s very safe ground on which to make policy. I think, in short, there is a great deal of wisdom in the statute in the way it’s drafted.

MR. NEEDHAM [R.I.]: May I respond to that, sir?

I agree with the Commissioner from Texas that 207, taken by itself, is an attempt to influence the action of people in the community, but I feel that the purport of the section now under discussion is really directed toward the rights which would apply subsequent to the death of somebody who enters a void marriage, and I don’t think that a person ought to profit by a violation of the statute which says that this is a course of conduct he ought not to take. And if we do not allow an attack after death, this is exactly what we are putting our stamp of approval on.

MR. MERRILL: On behalf of those of the Committee who voted to retain the language as it is, in addition to adopting {B30} fully the arguments so persuasively made by Commissioners Dunham and Ruud, may I add that we came to the conclusion that this was an area in which, actually, justice could be much better done by forbidding the related attack.

We did not feel that there were any vested rights of property on behalf of the so-called innocent party.

MR. HELLRING [N.J.]: Those of us on the Committee who share the views of Commissioner Needham and Commissioner Arnold and Commissioner Burdick on this subject would suggest also that, if it be true, as Commissioner Ruud has suggested, that a principal purpose of Section 207 is to influence conduct, while it’s quite true that if you don’t influence the conduct of the one who dies after he’s dead, you do influence the conduct a good deal of both of the parties by indicating to them what the situation will be after the death of both of them, if they know at the time they contemplate the act that by accomplishing the act now they accomplish nothing if one of them dies.

CHAIRMAN READ: Speaking of accomplishing nothing, one of the best ways to do it is to try to draft on the floor.

We have a draft, and for the purpose of, perhaps, putting something more affirmative into this discussion, could you read it?

MR. HOOPER [Ill.]: Under this draft we would insert in line {B31} 18 after the words “declaration of invalidity” the words “under subsection (a) (1) through (3)”; and then we would eliminate subparagraph (4), and have a new subsection (c), which reads:

A declaration of invalidity for the reason set forth in subsection (a) (4) may be sought by either party, [appropriate state official], or the legal spouse in case of bigamous marriages, or any child of a deceased spouse at any time.

MR. BRAUCHER [Cambridge, Mass.]: Mr. Chairman, I rise to speak against this motion. I’m troubled by the case in the clearcut situation that people are hypothesizing, but I think these cases are not always so clearcut.

One of the problems that you get into is finding out what the facts were. We all have read about Oedipus, and so forth, and trying to trace some of these things back is often rather difficult, and it gets more difficult the more people die, and it seems to me that to have a thing which remains open-ended, possibly, for basically a human lifetime, when it becomes almost impossible to reconstruct who was whom and where they were in some previous identity which they had long since lost frightens me enough so that I think we ought not to do this.

MR. ARNOLD [Ark.]: Mr. Chairman, I see no reason for not doing what should be done, simply because it may be difficult {B32} to prove the facts. At least let’s give the opportunity to do that.

I would move the adoption of what was read there as the sense of the house, in lieu of the motion which I previously made, in order that we might get on with the vote.

MR. MERRILL: That would be a direction to the Committee.

MR. LANGROCK [Middlebury, Vt.]: It seems to me that in this situation we’re really talking about only the case where the parties didn’t have sense enough to make a will, and you are affecting property rights, and again you have the unusual case of the little guy, the person who isn’t knowledgeable, and I think that you are really discriminating against the little fellow who hasn’t money enough to go to a lawyer, as against his spouse.

CHAIRMAN READ: I think, to the extent that a wife has a right to elect against a will, you still have some merit left.

MR. MILLER [La.]: In my state a man can’t divest himself by will to whomever he wishes. The spouse has certain rights, and so do the children.

MR. DUNHAM [Ill.]: Commissioner Arnold mentioned the idea of what should be done. I think both sides can construct cases that will raise issues of what should be done. I’ll take what {B33} I regard as the worst case on my side.

A brother and sister marry. There are two other children. They know that they are violating the law. They live together for forty years. They accumulate assets. They have no children. Then comes the death, and the husband dies intestate.

Now, if we take this sister out, and say she only has the status of a sister, she gets one-sixth. If she claims as a spouse, since now nobody can attack her claim, she gets one-third or one-half. I would say that what should be done is that she should get one-third or one-half, and not one-sixth.

MR. MILLER [La.]: Under that hypothet there would be no one to attack that marriage because, as I read the language, it would be limited to a legal spouse or children of a legal marriage, and in the hypothet case no one could attack that.

[Calls for the question.]

MR. GIBSON [Mo.]: Just a moment. I’d just like to ask Commissioner Arnold if on his motion it would be preferable to say that the action may be brought at any time, or to put some limitation on that by saying at any time not to exceed five years following the death of either party. That wouldn’t leave an open-end proposition.

MR. ARNOLD [Ark.]: Certainly, as far as I’m concerned. {B34}

CHAIRMAN READ: As to Commissioner Arnold’s suggestions, I think the issues are different as far as the children are concerned. I would like to take this proposal and separate it to the extent of allowing parties other than children to bring the attack, and on a subsequent vote to consider separately the children.

So the motion is for a provision stating that a declaration of invalidity for the reason set forth in subsection (a) (4) may be sought by either party, by the legal spouse in the case of bigamous marriages, or by the [appropriate state official], at any time not to exceed five years following the death of either party.

MR. BURDICK [N.Dak.]: Mr. Chairman, parliamentary inquiry: How can the chair separate the motion?

CHAIRMAN READ: It was suggested by the mover.

MR. ARNOLD [Ark.]: No. When the gentleman read the proposed language, I moved then that that be adopted as the sense of the house.

CHAIRMAN READ: I’m sorry. All right, you do not wish to separate?

MR. ARNOLD [Ark.]: No, sir.

CHAIRMAN READ: In that case we will not separate. It will read: A declaration of invalidity for the reason set {B35} forth in subsection (a) (4) may be sought by either party, by the legal spouse in the case of a bigamous marriage, by the [appropriate state official], or by a child of either party, at any time not to exceed five years following the death of either party.

MR. TOWNSEND [Indianapolis, Ind.]: Could I speak to this?

In Professor Dunham’s example, suppose that the couple had married and had children, that the children had grown up and are now forty years of age, and the husband and wife live together. You are saying that the children can come in and completely defeat the right of the wife in this case to receive anything. This would be preposterous.

Let me say this. You have got a beautiful provision here. Somebody with a great deal of imagination has dealt with the problem. I think this represents a movement away from the old idea that a person must come into equity with clean hands — something that is likely to be dissolved because of the fact that time has taken care of it.

I think this is a good provision, that this whole law represents to me a very imaginative new approach to a very serious problem.

CHAIRMAN READ: You have heard the question.

[The motion was put to a voice vote.] {B36}

CHAIRMAN READ: I believe the motion carries.

[Mr. Dana called for a division.]

CHAIRMAN READ: The question is on a vote in favor of a provision reading as follows. It will be subsection (c):

A declaration of invalidity for the reason set forth in subsection (a) (4) may be sought by either party, the legal spouse in the case of a bigamous marriage, by the [appropriate state official], or by a child of either party at any time not to exceed five years following the death of either party.

MR. BURDICK [N.Dak.]: Mr. Chairman, I believe the motion also contemplates limiting line 18 to those three particular subdivisions.

CHAIRMAN READ: With appropriate ancillary drafting.

[The motion was put to a standing vote.]

CHAIRMAN READ: The motion is lost, as it was in the Committee, by a vote of forty-one to forty. [Laughter]

MR. BURDICK [N.Dak.]: Mr. Chairman, I request a roll call by states.

MR. JENNER [Chicago, Ill.]: Point of order, Mr. Chairman. We can’t have a roll call by states in the Committee of the Whole. I’m sorry, but we can’t.

CHAIRMAN READ: I’m sorry, Mr. President. But I believe {B37} the rules state that the judge is entitled to a vote by states as a matter of right.

MR. NEEDHAM [R.I.]: As a matter of fact, they do.

CHAIRMAN READ: The Secretary has been summoned from wherever, and we will have a vote by states. Under the rules, as I understand them, there’s one vote per state, and any state which is evenly divided has no vote.

The Committee of the Whole will please come to order. The Secretary will call the roll of the states. As the name of your state is called, please cast one vote, either affirmative or negative. If your delegation is evenly divided, you have no vote. For those jurisdictions represented only by Associate Members, the Associates have the privilege of the floor but do not have the right to vote.

MR. NEEDHAM [R.I.]: Question, please. In a delegation, if the delegation is divided and there is a majority side of the delegation, are they entitled to cast in that direction?

CHAIRMAN READ: The delegation votes by majority vote, as I understand it.

MR. NEEDHAM [R.I.]: Thank you.

CHAIRMAN READ: The proposition that I am supposed to restate has disappeared. Does anyone really need it restated? {B38}

[Calls of “No!” “The question!”]

CHAIRMAN READ: The Secretary will call the roll of the states.

MR. McKEOWN [Coos Bay, Ore.]: This is going to cost you overtime, so vote fast. [Laughter] We’ll now have a vote by the states on the issue that is now presented to you.

[Mr. McKeown called the roll, eliciting the following replies:]

ALABAMA: [No response]

ALASKA: Aye.

ARIZONA: Aye.

ARKANSAS: Aye.

CALIFORNIA: Aye.

COLORADO: Aye.

CONNECTICUT: No.

DELAWARE: [No response.]

DISTRICT OF COLUMBIA: Aye.

FLORIDA: Yes.

GEORGIA: Yes.

HAWAII: Pass.

IDAHO: Aye.

ILLINOIS: No.

INDIANA: No.

IOWA: No. {B39}

KANSAS: [No response]

KENTUCKY: [No response]

LOUISIANA: Aye.

MAINE: [No response]

MARYLAND: No.

MASSACHUSETTS: No.

MICHIGAN: [No response.]

MINNESOTA: No.

MISSISSIPPI: Aye.

MISSOURI: Aye.

MONTANA: No.

NEBRASKA: No.

NEVADA: [No response]

NEW HAMPSHIRE: No.

NEW JERSEY: By a divided vote, no.

NEW MEXICO: [No response]

NEW YORK: Yes.

NORTH CAROLINA: Yes.

NORTH DAKOTA: Aye.

OHIO: Aye.

OKLAHOMA: No.

OREGON: Aye.

PENNSYLVANIA: [No response]

PUERTO RICO: [No response] {B40}

RHODE ISLAND: Yes.

SOUTH CAROLINA: [No response]

SOUTH DAKOTA: Aye.

TENNESSEE: No.

TEXAS: No.

UTAH: No.

VERMONT: No.

VIRGINIA: No.

WASHINGTON: No.

WEST VIRGINIA: No.

WISCONSIN: Aye.

WYOMING: No.

CHAIRMAN READ: Is there any state which was unrepresented when the roll was called which wishes to indicate a vote?

MR. KIDWELL [Honolulu, Hawaii]: Hawaii still passes. [Laughter]

MR. McKEOWN [Ore.]: Mr. Chairman, according to the vote, there are twenty ayes and nineteen noes.

CHAIRMAN READ: May we return to order, please? Commissioner Eastaugh?

MR. EASTAUGH [Alaska]: Mr. Chairman, I rise to the pont that I sought to raise Saturday, and if my recollection is correct, I recall that Commissioner Hellring made a statement with regard {B41} to sub (3) under Section 207. Perhaps this is not the right language, but there was no genetic vice in a marriage between aunt and nephew, and uncle and niece. That is my recollection.

MR. HELLRING [N.J.]: I made the statement as a report by me of advice received by the Committee from advisors who were geneticists. Well, I don’t know if they were geneticists — one of them, I think, was — anthropologists — and there were psychologists and social workers and someone from HEW, and that was the report which was made to us.

MR. EASTAUGH [Alaska]: I mention this because this goes to the point that I raise, and I feel a duty to speak for the aboriginal cultures in Alaska.

Now, I mentioned that Rhode Island was not the only state with a problem; that I felt that Alaska had one; and that since the mention of this point last Saturday I understand that Hawaii may have the problem in its Polynesian culture, and I believe that it might also be true with respect to certain of the tribes in the western states.

I have talked to Professor Kay about how best to raise the point, and she made the suggestion that perhaps I should ask for a motion of the sense that this should not apply to subcultures; that is, this prohibition now in sub (2) {B42} of Section 207 should not apply to subcultures.

I would prefer to have that expressed in the way of “aboriginal cultures”. It is my understanding that these marriage practices have been continuing for many, many more years than the white man has been in North America, and I recall that when the white man went over the Chilcat Pass, they employed Alaskan native women to carry their packs of two hundred pounds — on the backs of native women. I am sure that such a practice has not led to a debilitated native race.

Now, I make the motion, and ask the consideration of the Conference.

MR. MERRILL: You have heard the motion.

CHAIRMAN READ: Will you remark on the motion — other remarks, that is.

MR. HELLRING [N.J.]: And your motion is for a change only in 207 (2)?

MR. FRASER [Syracuse, N.Y.]: What is an aboriginal culture in this country? Would African aboriginal customs be recognized in this country[?]

MR. EASTAUGH [Alaska]: Whatever it is, if I may reply to that, I refer to Senate 1830, which is the Alaska Native Land Claims Settlement, and the Senate and the Interior Department report accompanying it referred to the Alaska claims and the {B43} aboriginal claims as referring to the original occupants of Alaska.

MR. MERRILL: Mr. Chairman, as I interpret the motion — and I would like Commissioner Eastaugh to follow me, if he agrees — I interpret the motion as directive toward sub (2), Paragraph (2), of subsection (a) of Section 207; that it be amended by striking the period after “blood”, and adding a comma and these words: “except as to the marriages permitted by the established customs of aboriginal cultures”. Does this express your thought?

MR. EASTAUGH [Alaska]: That does very nicely.

MR. BRAUCHER [Mass.]: Mr. Chairman, I had understood Mr. Eastaugh to be talking about only the nephew-aunt and uncle-niece, and I would think you would separate this, so that the ancestor-descendent and brother-sister are not affected by it.

MR. MERRILL: This can be done very easily.

CHAIRMAN READ: Yes, I think perhaps we will restore sub (3), where we are referring to between uncle and niece, and so on.

Is there further comment? [No one responded.]

[The motion was put to a vote and was carried without a dissenting voice.]

MR. CALLOW [Wisc.]: May I address a question to this subject? {B44}

I have been somewhat concerned, and I have talked to my fellow committee members, and they express some concern, and as long as we’re here, I’m wondering if there is any inference to be drawn from the fact that we speak to the half and the whole blood; whether the word “adoption” might not be substantially clearer, and avoid any possible misunderstanding.

MR. MERRILL: the Committee will accept.

MR. DANA [N.Y.]: Mr. Chairman, I would like to ask the Committee to give the rationale why, under Section 208 as addressed prior to the motion which just carried so narrowly — why it is that a marriage which is unvalid, say, under section (a) (1) of 208 on page 6, of a party who was drugged or given too much alcohol, could never be attacked after the death of either party.

Let me give you the worst example I can think of. One day before gangster Dillinger is killed by the FBI, it turns out that he drugged a twenty-one-year old and went through a marriage ceremony with her. The next day he is shot to death by the FBI.

If something like that happens in the future, and this Act is enforced, as I understand it, neither the poor girl nor her horrified parents could ever move to have that marriage declared invalid. She would forever be known as the widow of {B45} gangster Dillinger. That stain could never be wiped out.

I realize there might be a balancing on the other side, but where you have a short, one-day duration, infamous marriage that was carried out only because of complete incapacity, why would you want those never to be attacked after the death of one party?

MR. MERRILL: The thought of the Committee was that the great balance is so far on the side of the justice that would be achieved by preventing posthumous attacks, and that the example which Commissioner Dana has given would be relatively infrequent, and that it was better to keep the provision as it is.

MR. Z’BERG [Sacramento, Calif.]: On a different point — and I’m sorry I wasn’t here yesterday — I’m wondering why the cause of action for fraud is not in here. If consent was obtained by fraud, I wonder whether or not that consent was given; if you did have a valid marriage; if you have to get a divorce rather than getting an annulment; and if your consent was given by way of fraud, do you have to allege that the marriage is irretrievably broken, when it never really existed? Yet it seems that there has to be a finding that the marriage was broken, and here there wasn’t really anything to break.

You also have a residency requirement, which you don’t normally require for an annulment. So I’m wondering if {B46} someone can explain to me why the whole subject matter of fraud is not included.

Suppose that John Dillinger said he was a millionaire, and it turns out that he’s John Dillinger. Then you are going to be the widow, or ex-wife, of John Dillinger rather than getting the marriage annulled.

PROFESSOR KAY: The thought, Commissioner Z’berg, was that in the fraud situation you have a case where the party’s consent has been procured by reasons that he wasn’t quite aware of. He didn’t know the full facts at the time, and then he finds out what the whole truth is, and at that point he can either determine to stay in the relationship or get out of the relationship.

If he stays in the relationship, the present law would be that the relationship is ratified and the marriage is valid, and if he wants to break it up later, he can seek dissolution. The thought of the draft is that if he decides to get out of the relationship because of the fraud when he discovers it, that he ought to do so by means of dissolution rather than by means of annulment, because we felt that in many states that had previously had laws — like, for example, New York — the law of annulment based on fraud just became an alternative means of getting a divorce; rather than the need for preserving the concept of {B47} annulment, the ground has been misused in many states, and we thought it would be better to eliminate it.

MR. ROBISON [Anchorage, Alaska]: Mr. Chairman, through my timidity in being the newest Commissioner, I failed to ask a question of Section 205. I was not here, and did not have the benefit of Saturday’s discussion, but in the section on judicial approval I’m wondering why a child under 18 who has the consent of a parent but not the consent of the second parent, and attempts to obtain judicial approval — the justice might see grounds and reason for giving judicial approval, but apparently cannot, if the unwilling parent still refuses to give that consent.

Am I wrong in my interpretation?

MR. CALLOW [Wisc.]: At 16 and 17 the judge can overrule the parents, but under 16 it’s the parents and the judge.

MR. ROBISON [Alaska]: In 205 he may overrule the nonconsenting parent?

MR. CALLOW [Wisc.]: For the 16 or 17-year old, yes.

MR. ROBISON [Alaska]: I’m happy with that explanation.

Under 205 (a) (2), as I understand it, that cannot be done?

MR. CALLOW [Wisc.]: That’s correct.

MR. ROBISON [Alaska]: I have the same concern there, but diminished. {B48}

CHAIRMAN READ: Thank you.

MR. CUNNINGHAM [Baltimore, Md.]: In your redraft of 201, where you changed the “must” word to “valid”, you have now a situation where there is the implication of invalidity if the solemnization was not proper. Take the example of only two days’ wait, rather than three days, after the license. As I understand 208, this is an exclusive method of declaring something invalid. Do you have a problem now of having the word “valid” cover areas where you don’t want it to cover, and no way of testing it, and also no remedy to the three-day situation?

PROFESSOR KAY: There is case law in a great many states that says, in the situation that you mention, that the issue is raised not on a traditional annulment ground, but by raising the question of whether the prescribed statutory procedure has been followed. The section says that if the marriage has been performed as set forth here, then the marriage is valid, which applies, and the comment will state that if it has not been performed in accordance with those provisions, then the marriage could be considered invalid, and the issue could be raised as to whether or not the court will do so.

In those cases the court usually weighs the policy in favor of upholding the validity of the marriage against the policy of the licensing state. For example, we had a California {B49} case of a child who was married under an assumed name but who had the consent of the parents, and we had the issue, and the court said that the marriage would be upheld since the defect was only technical and the child had the parents’ consent, and it seemed to the court that the policy in favor of validity of marriage outweighed the technical defect.

MR. CUNNINGHAM [Md.]: It seems to me that it’s much better to have a light criminal penalty in favor of making the three-day wait, rather than to get into the question of the validity of the marriage.

CHAIRMAN READ: We will continue with Section 209.

MR. JENNER [Ill.]: Mr. Chairman, I have checked on the official vote, and Frances, regrettably, misrecorded New Jersey, and I have asked Mr. McKeown to announce the vote, which is twenty to twenty, which means that the motion is defeated. [Laughter]

MR. CALLOW [Wisc.]: I will take exception to that at this point. You have announced this, but I don’t know that that is the result.

MR. JENNER [Ill.]: I have asked the Secretary, who has the official vote, to appear and report the vote.

MR. CALLOW [Wisc.]: Very well.

MR. NEEDHAM [R.I.]: May I inquire? As I understand the vote {B50} of any parliamentary body, once the vote is announced, and it is not challenged, it stands. [Applause]

CHAIRMAN READ: The chair will rule that if the vote as announced was in error, it can be corrected. Will the Secretary step to the rostrum, please?

MR. HELLRING [N.J.]: There are other people here to vote now. We ought to get a revote.

MR. MILLER [La.]: In support of Mr. Jenner’s point of order, I feel I should, in the light of Mr. Jenner”s statement, say that I attempted to keep a tally, and according to my tally the vote was tied.

CHAIRMAN READ: Thank you.

MR. MILLER [La.]: I would like to suggest that perhaps this is the way this ought to be presented to the state legislatures. Certainly, if the motion didn’t carry, I would assume that on a roll call of the states the draft would not be approved. That being so — if that were to be so — it might be well that both motions be incorporated in this Act when submitted to the respective state legislatures. I can tell you in my State which one we would choose.

CHAIRMAN READ: Section 209.

MR. MERRILL:

SECTION 209. [Putative Spouse]. Any person {B51} who has cohabited with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited (Section 207) or declared invalid (Section 208). If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.

This covers the questions that were raised yesterday.

CHAIRMAN READ: Will you comment?

MR. ARNOLD [Ark.]: It’s very difficult to comment on this, not knowing exactly where we stand on the other matter, because the two play together considerably.

MR. MILLER [La.]: Well, in furtherance of that point, 209, as it now reads, would nullify the effect of the motion which we thought was carried, because if, despite the right of {B52} a legal spouse to attack the invalidity of a completely void marriage, that so-called wife of that completely void marriage would still have the rights of a wife, it defeats the whole purpose of the motion which has caused so much controversy.

MR. RUUD [Tex.]: There is one distinction in 209. You notice it’s necessary for the putative spouse to be in good faith.

MR. MILLER [La.]: Well, even so, this concept of the putative wife and common law wife having full rights of a legal wife is so foreign to my own jurisdiction that it’s difficult for me to view that. A putative wife, as attempted to point out in some earlier discussion — the case law in our State has tried to wrassle with the problem of how to give certain rights to a putative wife in good faith without, however, taking away the rights of the legal spouse, and unless this draft is to make some provision for some balancing of those rights, it seems to me its completely wrong to deprive a legal wife, or to make her share equally with a putative wife.

CHAIRMAN READ: The standard for the division is appropriateness to the interests of justice, which, when you run into these cases is, I imagine, about the best you can do.

MR. BUSH [Phoenix, Ariz.]: Mr. Chairman, I would like to move at this time that Section 209 be deleted. I think there has been {B53} a good deal talking pro and con on it. It does have some connection on the motion on which there has been some dispute about whether or not it carried, and that would be my motion at this time.

MR. NEEDHAM [R.I.]: Mr. Chairman, is it the consensus of the Committee that the status of putative spouse and the rights of a putative spouse would be those rights that would ordinarily be adjudicated after the death of, say, the person who has two or more wives?

MR. MERRILL: Yes, Commissioner Needham, but not necessarily, because if you will note 209, the phraseology in lines 6 and 7 is “including the right to maintenance following termination of his status”, and so on, so that the Committee’s understanding is that some of these rights are rights which exist while the parties all are in being.

MR. NEEDHAM [R.I.]: Now, is there a procedure whereby, for instance, I in my younger days lived with a woman who thought I was her husband, and then I left college and she found out that we were not married, and I went on to have a family, and so forth? When are her rights determined, as envisioned by the Committee?

MR. MERRILL: ” . . until knowledge of the fact that he is not legally married terminates his status”. In the case {B54} which you put, she got that notice back yonder.

MR. NEEDHAM [R.I.]: When would she come into my property? When would she be a putative spouse, a widow?

MR. MERRILL: This would be covered by the apportionment thing.

MR. CALLOW [Wisc.]: She gets whatever you owned at the time that she found out. At that point she no longer can take any part of your estate later acquired, but that which you have acquired up to that point is subject to her taking.

MR. NEEDHAM [R.I.]: So she might have been entitled to my government assistance when I was going through college, but she wouldn’t be entitled to my home when I died?

MR. VON HERZEN [Los Angeles, Calif.]: He tells her, and she doesn’t believe him. Then what happens?

MR. CALLOW [Wisc.]: You have got a judicial determination.

MR. HELLRING [N.J.]: The way the majority of the Committee want it to be is the way you interpret it, Commissioner Needham and Commissioner Von Herzen; that when she finds out and when she believes it, I guess, then she can seek her rights. That’s the way this reads now.

MR. VON HERZEN [Calif.]: I have a question for the Committee. It looks to me, Mr. Chairman, that with this wide open situation as to when you have your belief, or lose your belief, with relation {B55} to property that may be available to you after the death of the person to whom you believe yourself to be married — he tells you he isn’t, and you don’t believe him — then the whole thing rests and turns on the question of the bona fide of the belief. Now, is this an invitation to fraud?

CHAIRMAN READ: It’s knowledge. It’s knowledge.

MR. CALLOW [Wisc.]: That’s why there is a motion to strike this section.

MR. ABRAMS [Newark, N.J.]: I’m not exactly sure about this section. I believe I support the motion, but I’d like to ask a couple of questions of the Committee.

Under this section, this marriage presumes a ceremony, and it presumes a registration; is that so?

MR. HELLRING [N.J.]: Not necessarily, no.

MR. ABRAMS [N.J.]: No ceremony?

MR. HELLRING [N.J.]: Not necessarily. In some circum stances there could be. I mean, we had various examples cited to us. Perhaps one of the other Commissioners might want to give some of the examples. One that I remember was that a man says to a woman, “I have the power to marry people, and so I hereby say we’re married,” and she believes him. That was one of the cases; or impersonating a clergyman, or something of that kind. {B56}

MR. ABRAMS [N.J.]: Wouldn’t there be a license?

MR. MERRILL: Not necessarily.

MR. CALLOW [Wisc.]: It’s pretty close to common law marriage.

MR. HELLRING [N.J.]: Well, no. When I thought it sounded like common law marriage and I asked, I was told: No, it wasn’t.

MR. RUUD [Tex.]: It is not close to common law marriage. There is a good faith test that’s required, and it isn’t just living together.

MR. ABRAMS [N.J.]: Well, good faith means you don’t know the law, or you learn the law later, and she learns that the law is that she had to have a registration, and she didn’t have it. What is the significance of that?

MR. HELLRING [N.J.]: I can’t comment any more, I don’t think.

MR. ABRAMS [N.J.]: Well, anyway —

MR. HELLRING [N.J.]: One of the other Commissioners perhaps can help you; one of the other Committee members.

MR. MERRILL: I think the answer goes as I have given it to you, Commissioner Abrams.

MR. DAGGETT [Baton Rouge, La.]: Gentlemen, this is being raised as a new matter. I hate to revert to my professorial aspect, but {B57} if you would all like a little explanation, Louisiana doesn’t consider this new.

In the Justinian Code, which was a codification of the Roman law of some 600 years prior thereto, the putative marriage was recognized. The Siete Partidas of Charles the V made some changes, reverting largely to Hebraic law.

We had a further confusion in the Napoleonic Code revision, in which this matter was debated at some length. We adopted a version of the Napoleonic Code drafters in Louisiana. In the case of Ray (?) v. New York in Louisiana we recognized the situation where one party to the putative marriage is in good faith and the other is not, in which case we then applied the rule of the Siete Partidas and the Hebraic law, where the sins of the father descend upon the children to the third generation, thereby taking the share of the one in good faith, the dirty old man, and giving it to the woman who was wronged.

Then in the later case of Prince v. Hopson (?) in Louisiana both parties were in good faith. Both were under the mistaken belief that they had a valid divorce. As a matter of fact, neither one did. In this case the Hebraic law didn’t work, since there was no one at fault. In this sense we then did not have anybody to deprive of their right to split among the girls, so the man in good faith, apparently, because he {B58} died — his entire share went to his children, and the girls split it up, the legal wife having to share with this dirty woman who was not a lawful wife.

Now, presumably, if we project this dirty woman into more putative marriages, the many girls will divvy up, depending upon the duration of the putative marriage.

This is further complicated by the notion of community property, which 13 states in this country now, unfortunately, have. This has a slight further complication as to which community we are speaking about when we partition it. All of this makes it a little complex for a uniform law, [laughter] but we do have a wealth of experience on it, and it has nothing whatsoever that is new about it, and it dates from Justinian’s day with common law marriages when the tribes in Britain were rather primitive and didn’t really bother about marriage anyway.

We still don’t have common law marriages. We permit sleeping around in Louisiana. [Laughter] In fact, we encourage it. It’s one of our chief tourist attractions. [Loud laughter] But it should not be confused with putative marriage, which under the civil law contemplates a formal, written contract, as well as the solemnity of a celebration of some sort.

We, of course, have been liberal with those that are {B59} not as well educated as others and don’t have a definite religion, so that we recognize the old slave marriages of just jumping over the broomstick; but jumping over the broomstick was important, because it did at least represent a ceremony, as distinguished from just sleeping together.

Now, putative marriage doesn’t really mean that you have to sleep together. At my age it’s quite conceivable to have a home away from home without much sex. I’m not getting it at home, and I’m not getting it any place else. [Loud laughter] Cohabitation really has nothing to do with it. It’s a matter of status, and of maintaining that status within the society. [Laughter]

So I would like to not see these totally remote concepts of common law marriage, practiced among the barbarian tribes of Britain, introduced into our rather formal law, which has been in existence for several thousand years; and if we are going to codify the law pertaining to putative marriage, it should be more elaborate and should take into consideration matters of community property as well as some of these other problems, none of which deal with cohabitation. [Laughter and applause]

MR. JESTRAB [Williston, N.D.]: I’m glad to understand that this has a respectable lineage going back to the Pentateuch, but we {B60} plowed this ground here two or three days ago, I had thought, at some length, and I was satisfied at that time with the explanation from the Committee that this is something that has developed in the community property states as an equitable idea; and if I am wrong about that, I’d like to be straightened out. But it’s just an equitable device that has developed, and it has some respectable modern experience, and I think probably that if you don’t have this, you are going to develop it, so what you are doing is codifying the California experience; and I would oppose the motion to delete it.

Now, as opposed to the motion to delete it, we have the suggestion that it ought to be extended into a kind of a code, but if the experience we have had with this Marriage and Divorce Act is any guideline, we’ll be here to the end of time working on a code of putative marriage, and I think it’s all right just the way it is, and I would oppose the pending motion.

CHAIRMAN READ: The question is on the motion to strike Section 209.

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

CHAIRMAN READ: The chair is in doubt.

[The motion was put to a standing vote and was lost.] {B61}

CHAIRMAN READ: The chair is no longer in doubt.

MR. MERRILL:

Section 210. [Application.] All marriages contracted within this State prior to the effective date of this Act or outside this State that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted are valid in this State.

There’s no change there.

In Section 211 we come to Alternative A and Alternative B:

Section 211. [(Alternative A)]. [Validity of Common Law Marriage.] Common law marriages are not invalidated by this Act.

[(Alternative B)]. [Invalidity of Common Law Marriage.] Common law marriages contracted in this State after the effective date of this Act are invalid.

These two sections represent the insurmountable difficulty that we ran into over and over again in the Committee, as reported to you yesterday, and we stand on the proposition that the thing to do is to offer alternative drafts which can be accepted by the devotees of the common law on the one {B62} side and by the advocates of propriety on the other.

In Section 212 we intended to provide an alternative, but the Committee this morning, after discussing the comments that had been made earlier, voted to delete that section entirely. That is deleted. We pass this on to you for your information.

Now, if we may, we reach the stage of the discussion to which I referred earlier, in which, because of the new drafting which we did in response to your various suggestions that came to us from various people yesterday, we do not have a text before you, and we ask you to listen attentively to the draft which we have. This will be Part III.

Mr. Secretary, do you have any other information for us?

MR. McKEOWN [Ore.]: Yes, Mr. Chairman. [Executive Secretary Frances Jones and Mr. McKeown advanced to the rostrum.]

Mr. Chairman, Members of the Conference, when the vote was called for New Jersey, Frances Jones understood them to say that the vote was split, which would mean there was no vote, but, actually, they did say afterwards, they say, that they voted no — the majority. So, therefore, the vote that I announced 20 to 19, was incorrect, and, actually, the vote is 20 to 20.

Is that right, Frances? {B63}

EXECUTIVE SECRETARY JONES: Yes.

MR. HELLRING [N.J.]: Mr. Chairman, in view of the way the vote went, I have been authorized by the other two Commissioners from New Jersey to say that, in view of the way the vote has gone, we would ask for a reconsideration, since we voted no, and the motion therefore did not pass, because it was an even ballot.

However, while I have been so authorized, and therefore so state to the Chairman, before any reconsideration or revote is taken on the motion to reconsider, I would like to suggest, with the permission of the chair, another, perhaps better solution to this.

You will remember our saying that the Committee itself was divided by an even vote also of 6 to 6 on this question; that it was a vote of 41 to 40 by the Committee of the Whole; and then when a vote by states was called, it was again a divided vote of 20 to 20. Therefore, I venture to suggest that perhaps it would be wiser, since, after all, this is a Uniform Act we are seeking to accomplish — that perhaps we offer the language in the alternative to the states, either bracketed or in the alternative, so that we aid uniformity rather than make more difficult the question of ultimate passage. {B64}

MR. BURDICK [N. Dak.]: Mr. Chairman, as one of the proponents of the motion, this would be agreeable to me.

MR. JENNER [Ill.]: Mr. Chairman, in view of that close vote, I can’t possibly think of a sounder reason for submitting something in the alternative or in brackets, either way. The alternative seems to me better, since the Conference is obviously evenly divided.

MR. HELLRING [N.J.]: May I, then, so move?

CHAIRMAN READ: The motion, then, is to present the existing text of Section 208 —

MR. DAVIES [Minn.]: Mr. Chairman, I like to speak from time to time for the counterpart of this institution, the state legislatures. What we are is a service organization, providing them guidance material with which they do their job. We face here very tough questions, so we can duck it. I think that’s not doing our job.

I think there should be at least an A and a B, a preferred option and an alternative option; but we should give some assistance to the people who face the question of how the bill should be drafted and what should be in it.

MR. HELLRING [N.J.]: May I respectfully comment on that, Mr. Chairman?

I hasten to point out that in this very difficult {B65} Act presenting this very difficult subject, which has been — it was the first subject that the Conference of Commissioners on Uniform Laws ever studied, and, indeed, is said to be the reason for the coming into existence of the Conference some 70 years ago or more.

Now for the first time the Conference is close to promulgating an Act which has a chance for uniformity, a result which even recently was looked upon as impossible. In the light of that, and in spite of that, the Committee has offered, and the Committee of the Whole has heard and is passing upon, a proposed Act which has very few alternative provisions. Indeed, it’s notable in that respect. The alternative offering of common law marriage or no common law marriage is one of the few instances. There are some few instances of bracketing. The principal instance of it was eliminated entirely last night, when we knocked out Part V. So we have done this very rarely, even in this difficult Act. And I don’t think it can be said that we are ducking it when the Committee divides 50-50 and the Committee of the Whole divides 50-50 and the states divide 50-50, and I urge that we not try again to do this by a single vote.

MR. DUNHAM [Ill.]: Mr. Chairman, since I was one of the more vociferous opponents, I want to support Bernie’s motion {B66} and respond a bit to Commissioner Davies of Minnesota.

I agree with Commissioner Davies that on the whole it is our duty to take positions, and that we should not at the Committee level or at various early steps duck a matter, and neither should we duck it in the Committee of the Whole when it is to avoid a difficult thing. However, this issue has been debated and debated and debated in the Conference at various levels, and what the vote indicates is that if we are at all representative of the country, the country is as split as we are on this, and it seems to me the only solution, then, is to throw it back to the state legislatures, confident that we have explored everything and have been unable to resolve it.

Therefore, I would support Commissioner Hellring’s motion.

CHAIRMAN READ: Commissioner Jestrab, I’d like to speak. The chair is of the opinion that this matter perhaps did not require great debate, and I’d like to have the question as soon as possible. But please go ahead.

MR. JESTRAB [N.Dak.]: To suggest that we don’t know all the answers is to recognize reality, and to feign an omnipotent certainty when we just simply don’t know what we are doing is a mistake. {B67}

Each of us is required to go back to our legislature and do our level best to get any Act passed. Each of us also has a higher duty to make a personal verification of the morality of some of these things with our own conscience, and to take an Act of this kind and to give the states, which are laboratories for experiment, an opportunity to perform their experimental function in certain areas is to fulfill the highest calling of this Conference, and I support Mr. Hellring’s motion.

MR. NEEDHAM [R.I.]: Mr. Chairman, I too feel that the responsibility, morally and intellectually, is satisfied when reasonable men debate the issues; and if we are in doubt as to which side justice preponderates, I think if we follow the suggestion of Mr. Davies we would give birth to nothing, I think we are making great efforts to give birth to something, and although I personally disagree with many of the novel recommendations, I’m very pleased to join, and I’m proud of the product that we are developing, and I think the suggestion made from the podium is an excellent one, and being one of those deeply involved in the debate, I support it, and I would like to see it put the way it was suggested.

[Calls for the question]

CHAIRMAN READ: The motion is to state as alternatives {B68} for selection by the states the existing text of Section 208 and the additional text which was the subject of the vote by states.

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

MR. LEFLAR [Fayetteville, Ark.]: Mr. Chairman, I have to apologize for not being here Saturday when Section 210 was taken up, and we went over it rapidly enough that I didn’t develop my thought at the time we were discussing it a few moments ago. That is the one which has to do with validating marriages which are valid by the law of the place in which they were contracted.

It seems to me that that does not go far enough, and it backtracks from the present law. Actually, under the present accepted law of conflict of laws a marriage is valid not only if it be valid by the law of the place where it was contracted, but if it be valid by the law of the domicile of the parties. Those are alternatives under the present law, and the objective, obviously, of the present law, as well as of this new measure, is to achieve validity for marriages that are entered into in good faith and are valid by the laws of appropriate states.

It seems to me that we would come much nearer to achieving what we want if in line 4 of Section 210, after the word “contracted”, we added the words “or by the domicile of {B69} the parties”, and I move that that be done.

I will not argue further for it now, because it seems to me to be so obviously desirable that it does not need argument, but if argument seems needed, I will come back.

CHAIRMAN READ: Will you remark on the motion? Will any member of the Committee comment?

PROFESSOR KAY: The Reporter, being a colleague of Professor Leflar’s, welcomes the suggestion and heartily endorses it.

CHAIRMAN READ: May I state that the Committee accepts?

MR. MERRILL: The Chairman of the Committee is willing to accept.

CHAIRMAN READ: Since the Committee accepts it, I take it a vote may not be necessary.

MR. LEFLAR [Ark.]: Wonderful!

MR. MERRILL: We are now up to Part III, Dissolution. I made my explanation earlier of the circumstances under which this comes before you. Let us now start with what now becomes Section 301, and I will try to read sufficiently slowly that you may follow, although you may not necessarily wish to try to write it down.

SECTION 301. [Application of [Rules of Civil Practice] to Proceedings under this Act.] {B70}

There is an inner bracket here, Rules of Civil Practice, and the reason obviously is that in some states you have a code of practices, and in other states we have rules, and we will make the appropriate designation.

(a) The [Rules of Civil Practice] applicable to an action or proceeding apply to all proceedings under this Act, except as otherwise specifically provided in this Act.

This is intended to give the widest degree of application to the local practice laws, except when for reasons which are prevailing with respect to the philosophy of the law it is necessary to break in upon them.

(b) A proceeding for dissolution of marriage, legal separation or declaration of invalidity of marriage shall be entitled “In re the Marriage of ______________and ______________”. A custody or support proceeding shall be entitled “In re the [Custody] [Support] of _____________”.

(c) The initial pleading in all proceedings under this Act shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings, and all pleadings in other matters under this Act shall be denominated as provided in the [rules of Civil Practice]. {B71}

(d ) In this Act, “decree” includes “judgment”.

That is proposed Section 301.

MR. BURDICK [N. Dak.]: This is relatively minor, but I think you mean to say an action for declaration of invalidity.

MR. MERRILL: Did I so read? I regret that. That will be accepted.

Section 302 reads as follows, and this is the old 301, which was renumbered, and there were one or two changes in this.

Section 302. [Dissolution of Marriage; Legal Separation.]

(a) The [ ___________ ] Court shall enter a decree of dissolution of marriage when

(1) The court finds that one of the parties has been a resident of this State, or is a member of the armed services who has been stationed in this State, for 90 days next preceding the commencement of the proceeding or the entry of the decree;

(2) the court finds that the marriage is irretrievably broken; and

(3) to the extent it has jurisdiction to do so, the court has considered, approved or made provision {B72} for child custody, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property.

Otherwise Section 302 remains as Section 301 was yesterday.

MR. DAVIES [Minn.]: May I ask a question?

Does that mean that there is no requirement as to how long they have been a resident? I thought you struck the 90 days, and inserted it only after “serviceman”.

MR. MERRILL: The commas are intended to make that residence requirement applicable in both instances, that 90-day requirement.

SECTION 303. [Commencement; Pleadings; Abolition of Existing Defenses.]

(a) All proceedings under this Act are commenced in the manner provided by the [rules of Civil Practice].

(b) The petition shall allege that the marriage is irretrievably broken and shall set forth

. . . and from then on we have the six requirements that were in the section as it originally appeared; and that we have (c), “Either or both parties to the marriage may file the petition”, which involves no change.

We have a new subsection (d) which states: {B73}

(d) If a proceeding is commenced by one of the parties, the other party must be served in the manner provided by the [rules of Civil Practice] and may within [30] days after the date of service file a verified response.

(e) The existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are hereby abolished.

MR. NEEDHAM [R.I.]: Mr. Chairman, I suggest most respectfully, sir, that we are now in an area where we do not have a text to work from. I think we have a text of other sections on our tables before us, and which could also be before the chair. I don’t know when we are going to have the text available to us that you are presently reading, but this is a most difficult way to consider a very intricate proceeding, and if we are going to have future sessions, I would prefer to pass on something which is before me, so that we could have an intercourse on a common basis.

MR. MERRILL: The difficulty, Mr. Needham, is that we do not know how much more time we will have, and we thought it best to get our responses to this at this time.

MR. NEEDHAM [R.I.]: I, sir, for one — I object to being called upon to retain in my head something the chair is {B74} reading and which I don’t believe at this particular point is anywhere near in a finished draft. I would prefer to work from a text of some kind, and I think you told us at the beginning that there are other written sections which are before us, and I would rather go to those sections and consider those sections, and wait for some future time to have an opportunity to see the finished draft that the Committee is proposing.

CHAIRMAN READ: The fact of the matter is, Commissioner Needham, that I’m not sure there is a future time, at least at the moment.

As far as your problem is concerned, I certainly sympathize. However, we have just finished reading the only materials, I think, which really involve new things. I think that in order to move forward at all, we have to follow something in the nature of this procedure.

MR. NEEDHAM [R.I.]: Well, let me ask a question which might be illustrative of some of my difficulty. As I understand, in what has been read there is a requirement that the residence of someone be given, and the length of residence in this state.

MR. MERRILL: That is in your book.

MR. NEEDHAM [R.I.]: That is in the book? As I understand that provision, taken with something else you have read, a person need not be a resident of the state when he files a {B75} petition, providing that he will be a resident for 90 days prior to the entry of the decree, so that if the requirement is that he need not be a resident at the time he makes application, how can he list how long he is a resident of this state?

And it is difficulties like that that I cannot pick up when the chair is reading a text that I do not have in front of me.

MR. MERRILL: On the particular comment, obviously, he states the length of whatever residence he has at that time. If he has just come in, he has one day’s residence.

MR. NEEDHAM [R.I.]: But he doesn’t have to?

MR. FRASER [N.Y.]: Mr. Chairman, just a little thing, but I don’t want to pass it. You start off “All proceedings”. Why don’t you cast that in the singular as you do in subsection (d), and just say “A proceeding under this Act”?

MR. MERRILL: The Committee was of the opinion that this was more forceable.

MR. BUSH [Ariz.]: Mr. Chairman, my comment goes to subsection (c), I believe. It is the one that has to do with the abolition of defenses, and I’m not sure that my comment —

CHAIRMAN READ: I believe it’s (e).

MR. BUSH [Ariz.]: My comment may have to do with style, but {B76} it seems to me somewhat confusing to say “The existing defenses”. Why don’t you simply say that the defenses of condonation, connivance, collusion, recrimination, et cetera, are abolished?

MR. MERRILL: We wanted to pick up some other defenses not resting in statute that might exist in particular states.

MR. HELLRING [N.J.]: How about saying “Previously existing”?

MR. BUSH [Ariz.]: I think that’s better.

PROFESSOR KAY: “Prior existing”.

MR. HELLRING [N.J.]: Well, “Previously existing”, I think, is clearer, and that seems to be accepted by everybody.

MR. MERRILL: Any further comments?

CHAIRMAN READ: We’re going to go now to 304, which is in your books on pages 10 and 11, and I think you will find that the changes are not so substantial as to make it too difficult for you to follow in this rather cumbersome proceeding, for which we apologize.

MR. MERRILL: The only changes in Section 304 are in sub (a):

In a proceeding for dissolution of marriage, legal separation, or a proceeding for disposition of property, maintenance or support following dissolution of the marriage {B77} by a court which lacked personal jurisdiction over the absent spouse, either party may move for temporary maintenance or for temporary support of a child of the marriage entitled to support.

Now, the change there is to take care of the objection to the rather, it was thought, cumbersome and round about way of dealing with the court which lacked jurisdiction to enter an order concerning maintenance, support, and so on, because of having no jurisdiction over the person of the absent spouse; and that is taken care of by the phraseology: “following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse”.

There is no substantial change — no change at all, I don’t thin —

CHAIRMAN READ: Would you like to have that new language read again?

MR. BUSH [Ariz.]: Yes, slowly.

MR. LANGROCK [Vt.]: And loud.

MR. MERRILL: The first is subdivision (a):

In a proceeding for dissolution of marriage, legal separation, or a proceeding for disposition of property, maintenance, or support following dissolution of the marriage by a court which lacked personal jurisdiction over {B78} the absent spouse, either party may move for temporary maintenance or for temporary support of a child of the marriage entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.

That is all of subsection (a).

CHAIRMAN READ: Will you comment on the new language in subsection (a)? [No one responded.]

MR. MERRILL: Regarding subsection (b), now, there I think it would be well for me, since this [is] in your books, to request that you consult the book and note that the change is in line 18 on page 11 in your book which is subsection (b) (2), and the change is in line 18. You continue on after the words “of the other party”, you knock out the period, and say “or of any child”, and insert a semicolon. I guess it was a semicolon. So you insert a semicolon after “or of any child”.

There is no change otherwise.

In Section 305, which is irretrievable breakdown on page 12 in your books, there is inserted in line 3, subsection (a), at the beginning of the line, “or affirmation”; this is, of course, to take care of the persons who do not desire to take oaths.

The same thing is on line 6 of sub (b), “oath or {B79} affirmation”.

In sub (b), paragraph (2), line 11, “adjourn” has been changed to “continue”.

In line 12 we have retained, in lines 11 and 12, the days provided there, and have inserted a comma, and then followed that by “or as soon thereafter as the matter may be reached on the court’s calendar”. This was in response to suggestions made yesterday.

We have struck “may”, so that it reads, “and suggest to the parties that they seek counseling”.

MR. NEEDHAM [R.I.]: Commissioner Merrill, would you please read, as you have it amended, Section 305 (b) (2) in its entirety?

MR. MERRILL: 305 (b) (2) as amended reads as follows:

continue the matter for another hearing not less than 30 or more than 60 days later, or as soon thereafter as the matter may be reached on the court’s calendar, and suggest to the parties that they seek counseling. At the subsequent hearing, the court shall make a finding whether the marriage is irretrievably broken.

MR. NEEDHAM [R.I.]: You say “at the subsequent hearing”, rather than “at a subsequent hearing”? {B80}

MR. MERRILL: We think that’s a generic term, Commissioner Needham.

MR. NEEDHAM [R.I.]: There’s no chance that “at the subsequent hearing” might be interpreted to mean that you are only entitled to one hearing? Is that the intent?

MR. MERRILL: One hearing, which, of course, may be taken care of as soon thereafter as it may be reached on the court calendar. When he reaches it, then it takes care of it for once and for all.

MR. HELLRING [N.J.]: We don’t think that the word “the” can stop a judge from having more than one session.

MR. NEEDHAM [R.I.]: I don’t think it should, sir. I just was wondering what the sense of the Committee was, and if it is the sense of the Committee that it does not prevent, or you didn’t intend that he only was able to continue it once, then I’ll take the “the” rather than the “a”.

MR. BURDICK [N. Dak.]: I think that you have provided for a single hearing, and I think that this is wrong.

MR. NEEDHAM [R.I.]: I think, in fairness, there was a motion put yesterday which I believe was pretty much to give the judge some discretion to continue from time to time, and I think the sense of the house was that we lost this situation, and I don’t know whether it’s the intent of the Committee that {B81} it be disposed of as soon after this one subsequent hearing—

MR. HELLRING [N.J.]: I think it’s fair to say that the Committee would like to encourage a prompt decision, and not a continuing series of adjournments, and therefore the choice of the word “the”. However, I think we all realize that nothing can prevent a judge from starting a hearing and then continuing it for a conclusion at another time, merely by the word “the”; that the word “the”, however, is designed to encourage prompt determination, and not a series of continuations or adjournments.

MR. NEEDHAM [R.I.]: I think that there is a different side of that question, and I think in the interests of American justice, what you said — that a judge may interpret it that he may only adjourn once, and that at the subsequent hearing he must make his decision — I think that that is open to that interpretation. I think we lost on it yesterday, but I just wanted to inquire.

MR. BURDICK [N. Dak.]: I think the difficulty is with the use of the word “another” on line 11. I would move to delete the word “another”.

MR. MILLER [La.]: Substitute the word “further”.

CHAIRMAN READ: The Committee accepts that, Judge Burdick. {B82}

MR. MERRILL: Now, there is one other difference.

MR. FRASER [N.Y.]: Why not say “continue the hearing”? Isn’t that enough?

MR. MERRILL: There is one other change in Section 306, and this will be on page 14 of your book, in subsection (f), line 30. [Conferring] Oh, we are back now — we are back to the material that was passed to you that you were on before.

The change in subsection (f) of Section 306 reads: “Except for terms concerning the support, custody or visitation of children”.

CHAIRMAN READ: That was read that way yesterday.

MR. MERRILL: We’re now back on the material that came to you day before yesterday. In Section 306 we have here —

CHAIRMAN READ: I believe the changes in Section 306 are all changes to which we announced agreement yesterday, or changes which are purely style, and I would not think it was necessary either to review them or to read them.

MR. MERRILL: In Section 307 no changes of substance have been made.

MR. MILLER [La.]: Didn’t you specifically exclude the income dividends from separate property?

MR. MERRILL: We haven’t gotten that far. {B83}

MR. MILLER [La.]: I thought you said there were no changes.

MR. MERRILL: Speaking of (a), where we have simply the change of the court having no jurisdiction over the absent spouse.

Now, we do have a change in subsection (b), in which we have added, in response to the suggestions yesterday concerning what you did with the increase in value of property acquired before the marriage — we have added a new (5) to sub-paragraph (b), which is line 23 of the material which you have; and following that line there is —

The increase in value of property acquired prior to the marriage.

This is the change which was made in response to the suggestions which came to us from the floor.

MR. MILLER [La.]: I didn’t remember that suggestion. I heard the discussion about income or dividends from separate property constituting community property, but I didn’t know we had discussed treating as community property the increase in value of pre-existing separate property.

PROFESSOR KAY: The way the section is drafted, that is an exception, and the new subsection means that increase in value of separate property will remain separate property. The Committee discussed the question of income, and decided that {B84} it preferred to follow the Texas view, rather than the California view, whereby the income from separate property would be community.

MR. MILLER [La.]: I don’t see where it’s in there.

PROFESSOR KAY: We have defined marital property by saying that it’s everything except what’s excluded, and that’s not excluded, and the comment will so say, that since it’s not excluded, it remains community property.

MR. HELLRING [N.J.]: We did accept Commissioner Davis’ suggestion, but only as to income.

MR. MERRILL: No other changes of substance in 307.

In Section 308 we have made the same change regarding the proceeding where a court lacked personal jurisdiction over the absent spouse.

Now, there is one change of substance in lines 6 and 7, to carry out the intent:

. . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance

(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs . . .

So that takes care of the problem that was raised {B85} from the floor about the spouse who can’t provide for his reasonable needs.

MR. BURDICK [N. Dak.]: I think you have to go language such as this: “the court lacked jurisdiction to divide the property of the parties”, for this reason, that under the long-arm rules that are being developed now across the country, the court may have jurisdiction to award custody based upon residence and cohabitation, contrary to May v. Anderson. In other words May v. Anderson may very well be reversed under long-arm principles, so far as contact with the state is concerned, and I think that if you base this entirely on jurisdiction of the parties, the court may have had jurisdiction for certain purposes, but I think you are really concerned with lack of jurisdiction to divide the property.

I may not have expressed that too clearly, but I think that —

PROFESSOR KAY: Would it satisfy you if, in addition to speaking of lacking jurisdiction over the parties, which I think is necessary under the Vanderbilt case, we say “and/or lacked jurisdiction to divide the property”?

MR. BURDICK [N. Dak.]: Yes, I think that would be helpful.

MR. HELLRING [N.J.]: Is that line 4?

CHAIRMAN READ: That would be in line 4. {B86}

MR. MERRILL: You would add the words “or lacked jurisdiction to divide the property” after “absent spouse”?

PROFESSOR KAY: We only want that in the property section, not in the maintenance section, Judge Burdick?

MR. BURDICK [N. Dak.]: That’s right.

Mr. MERRILL: Those were the only changes in 308. In 309 —

MR. HELLRING [N.J.]: Excuse me, Commissioner Merrill. Did you mention the change in line 28 of Section 307, where the words “community property” were added?

MR. MERRILL: That had been agreed to yesterday, and it’s not a formal change, so I did not mention it.

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

CHAIRMAN READ: You have heard the motion.

[The motion was put to a vote and was carried.] {B87}

* * * * * * * * *

Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Clayton, Missouri

Thursday Morning, August 6, 1970

Mr. Harold E. Read of Connecticut presiding;

Professor Herma Hill Kay, Co-Reporter, presenting the Act.

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

Professor Kay will read the sections which require reading, and direct your attention to the style changes in the sections which do not require reading. As you all know, we want to do everything possible to move along as quickly as we can. Professor Kay?

PROFESSOR KAY: Thank you, Mr. Chairman.

You should have on your tables a new draft of the Uniform Marriage and Divorce Act, and in addition to that draft you should have a separate page 25a. Those two things will —

MR. HELLRING [N.J.]: I don’t think that page has been passed out yet.

PROFESSOR KAY: We will begin where we left off last time this Act was considered, with Section 309, which is on page 22 of the new draft.

MR. BURDICK [N. Dak.]: Mr. Chairman, I have to leave. I {B88} wonder if I could make some short comments on a couple of things that are bothering me about this Act.

CHAIRMAN READ: Please do.

MR. BURDICK [N. Dak.]: One is that I think the words “irretrievable breakdown” are unfortunate for this event that occurs and I think “irreconcilable breakdown” is much more appropriate. We speak of the parties as being irreconciled when they have become separated and when they can’t get back together where the breakdown is irreconcilable.

CHAIRMAN READ: I would hope, Commissioner, and anticipate, that we will have a comment which will bring in the concept you are describing, and alternatives. It’s a little late to amend the Act —

MR. BURDICK [N. Dak.]: I don’t think it is.

CHAIRMAN READ: And it seems to me a comment would do it.

MR. BURDICK [N. Dak.]: We are here for final consideration, and I think it’s entirely appropriate.

The other deals with Section 314. I see absolutely no necessity for serving the marriage clerk with a notice that a decree of separation has been issued, and having this endorsed on marriage licenses. I see no necessity for that at all. {B89}

MR. HELLRING [N.J.]: Where is that, Judge Burdick?

MR. BURDICK [N. Dak.]: Page 26, lines 11 and 15.

PROFESSOR KAY: We took that out of the section.

MR. BURDICK [N. Dak.]: You still require them to be sent to the other states.

PROFESSOR KAY: We don’t require that they be reported. Was that your motion?

MR. BURDICK [N. Dak.]: I see no point in even sending it, as far as separation is concerned. I would move that in lines 11 and 15 the words “legal separation or” be deleted.

CHAIRMAN READ: There seems to be a little confusion as far as the attitude of the Committee is concerned, and I will ask the members of the Committee who object to state the other side.

MR. CALLOW [Wisc.]: I would simply suggest that in the matter of the dissolution of the marriage — I would speak in opposition to the motion, on the premise that the clerk should know that every time a decree concerning the dissolution of a marriage — legal separation — is filed that he has the duty to mail, as required by this statute, and such an order or decree does affect the rights of the parties, and it was the intent of this filing to put the absent party on notice of the contents of that order or decree, and I think it is desirable {B90} that it be maintained in the Act as drafted.

CHAIRMAN READ: The question, then, is on a motion to delete the words “legal separation or” in line 11 and line 15 on page 26.

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

CHAIRMAN READ: You should all have the new draft, which in the upper right-hand corner says August 5, 1970 plus one supplemental page designated 25a.

MR. HELLRING [N.J.]: That is a single document containing the entire Act with the exception of one page, which has been passed out separately this morning.

MR. VON HERZEN [Calif.]: We don’t have it.

CHAIRMAN READ: Turn around and take one off the desk of the State of Connecticut. [Laughter]

PROFESSOR KAY: Section 309, on page 22 of the new draft, is where we are beginning. In section 309 we have inserted on line 3 the words “either or both”, making it clear that the court has authority to enter a child support order against either or both parents, including the custodial parent.

In Section 310, page 23, in response to instruction from the floor we have added the words “and visitation” in line 4, indicating that the child’s attorney can represent him on the issues of custody, visitation, and support. {B91}

In Section 311 we have added a new subsection (f), which is found on page 25, in response to a suggestion that this proceeding ought to be tied into the Uniform Reciprocal Enforcement of Support Act. The section is entirely new, and begins at line 30. It reads as follows:

(f) If the person obligated to pay support has left or is beyond the jurisdiction of the Court, the [prosecuting attorney] shall institute any other proceeding available under the laws of this state for the enforcement of duties of support and maintenance.

That authorizes the prosecuting attorney to institute proceedings on behalf of the person entitled to support under the Uniform Reciprocal Enforcement of Support Act, and the comment will make specific reference to the Uniform Reciprocal Enforcement of Support Act.

Section 312, which is the assignment section, has been broadened at the suggestion of Commissioner Dunham of Illinois, on page 25, to include trust income as well as earnings, so that after a court makes an appropriate order, an assignment can be ordered either of earnings or of trust income, and the payor can be required to pay over.

In Section 313, the attorney’s fees section, we have in response to comment from the floor included on line 2, at {B92} the bottom of page 25 — and it carries over to the top of 25a, which is your new separate sheet — and separate page 25a should be on your desks — we have included “after considering the financial resources of both parties” to take care of the objection that was made in regard to the need of the party asking for attorney’s fees and the ability of the other party to meet those fees.

Section 314 has not been changed except as to some minor matters of style.

Section 315 has not been changed at all. It’s simply the way it was when we originally read it.

MR. DAVIES [Minn.]: Is there any thought that that provision on attorney’s fees changes the basis upon which attorney’s fees are granted now?

In other words, as I look at it, I’m concerned that the court might say: Well, you have got more money, so you have to pay; rather than the action cannot be carried forward.

PROFESSOR KAY: I don’t understand that it changes at least the normal rule in my State, which would be that you take into account the ability of the party to pay his own fees and the ability of the other party to the extent that that party cannot pay.

MR. DAVIES [Minn.]: I think the law in Minnesota is that {B93} attorney’s fees are normally not awarded unless the award is necessary for the other party to carry forward the action; but I thought this might change that law.

PROFESSOR KAY: I don’t think so. The comment can indicate the kind of situation that would come up.

MR. ARNOLD [Ark.]: May I make an inquiry about this new subsection (f) in 311 on page 25?

It appears now that you are directing that the prosecuting attorney “shall institute”, that which is mandatory any time the father or husband leaves the state, whether the wife wants it instituted or asks for it or not.

MR. MERRILL: Commissioner, this subsection was drafted to meet a suggestion by Attorney General Henderson in Florida, who felt that the Act should permit a direct tie-in to what has become the universally adopted “Skipping Pappy” Act. The “Skipping Pappy” Act does put certain obligations on the prosecuting attorney. This language was intended simply to tie in.

It is, of course, true that the earlier part of the section would result in some explanation being made on behalf of the person entitled to support — the wife, and so on — and this is simply intended to relate to the “Skipping Pappy” Act.

MR. ARNOLD [Ark.]: I don’t find that language anywhere {B94} else in the section.

MR. MERRILL: Well, of course, to me the answer simply is that it ties in with that other Act of the State; but if you feel that other language is desirable, the Committee will be very glad to put in there “upon request”.

MR. ARNOLD [Ark.]: Or even just “may”.

MR. GIBSON [Mo.]: I think “may” should go in there.

MR. HELLRING [N.J.]: We accept. The Committee accepts the change from “shall” to “may”.

PROFESSOR KAY: In Section 316, page 26, a sentence has been added at line 8 and 9 — rather, a clause has been added. The argument was made on the floor that the court ought to be able to reopen judgment respecting property if there had been fraud or overreaching, and since most states have laws permitting judgments to be re-opened on those grounds, we simply have said, “unless the court finds the existence of conditions that justify the re-opening of the judgment.” So that the sentence is: “The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of the judgment.

I see we have two “the’s” in that sentence, and we’ll strike the one after “finds”. {B95}

Then in subsection (c) of that section, page 27, in line 17 we have added the words “commuted to a lump sum payment” to allow the court upon petition of representatives of the estate of the decedent parent to ask that the child’s right to support be limited, or be commuted to a lump sum payment, so that the estate can be settled promptly.

Then, going on to Part IV, Section 401, Custody, page 27, a new subsection (b) has been added beginning at line 14 down through line 17, to take care of the suggestions from the floor that a provision should be included requiring notice to certain persons. So the section now reads, beginning at line 14:

Notice of a child custody proceeding shall be given to the child’s parent, guardian and custodian, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.

There are no changes except minor matters of style in either Section 402 or Section 403, or Section 404.

In Section 405, on page 29, we have at lines 14 through 16 changed the age at which the child’s consent to an examination of medical records is required from 14 to 16, and have added a provision that the court dispense with the child’s {B96} consent, if the child lacks mental capacity to consent; so that the phrase reads, beginning with line 11, “The investigator may consult and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining consent of the parent or the child’s custodian; but the child’s consent must be obtained if he has reached the age of 16, unless the court finds that he lacks mental capacity to consent.”

Mr. Chairman, there are no other substantive changes.

CHAIRMAN READ: Are there comments from the floor?

MR. VON HERZEN [Calif.]: Mr, Chairman, Members of the Conference, when this Act first was presented, I indicated that I was disturbed by the fact that we were preparing and submitting to the states a Uniform Act on Marriage and Divorce.

Now, we lawyers customarily, perhaps, think of these two events in a person’s life as being in one package. However, I can assure you — and I believe I can speak on behalf of the great mass of our people — that they do not consider these two together, and the young person who is about to be married is not considering divorce, and I think it will be very unfortunate if we present this to our states in this form. The more I have thought about it over the last two or three days, the {B97} more I am convinced that the Conference would be making an error in submitting this to the legislatures in the form of a Uniform Marriage and Divorce Act, and I therefore move that the portions of the Act that refer to marriage be separated from the portions of the Act that are in the Divorce Act, and that they be submitted separately as a Uniform Marriage Act and a Uniform Divorce Act.

CHAIRMAN READ: Commissioner Von Herzen, at the time we have reached in this proceeding, taking into account the rules of the Conference relating to the necessity of having the Act on your desks before it can be acted on by the states, a motion which requires substantial revision of this Act is, in the opinion of the chair, tantamount to a motion to reject.

MR. VON HERZEN [Calif.]: I do not agree with the opinion of the chair in this respect. I think it can be done, and the Chairman of the Committee has assured me on several occasions that it could be done, and we’re still in the process of considering it in the Committee of the Whole, and under the rules of the Conference it is perfectly right and proper that this motion be made.

I don’t know of anything in our Bylaws, and I will challenge the chair to point out anything in the Bylaws, that prevents this motion being considered now. {B98}

CHAIRMAN READ: I have not ruled, but the provision in the Bylaws to which I would refer is the provision which states that if you want to amend an Act, you must submit your amendment in writing, unless excused by the chair.

MR. BRAUCHER [Mass.]: Mr. Chairman, I speak against this motion, but I would urge the mover to accommodate this further motion, if it can be done.

I have been worried about this. In many states this Act will have to be broken up, if it is passed, because it will go into different chapters in the Revised Statutes, and some Commissioners may want to separate it when they introduce it. That’s a tactical problem for the Commissioners in the particular state, and I would hope that the Committee would agree to put in a comment which would explain how you would break it. When you break it, so that it would help people to see how it’s going to fit if it has to be broken anyway to fit the Revised Statutes, and I think that will meet what Commissioner Von Herzen wants to accomplish without messing us up at this stage of the proceedings.

MR. HELLRING [N.J.]: Commissioner Braucher, the Committee not only accepts your suggestion, but informs you that that was their plan; but the Act in respect of its several parts, and particularly in respect of its division between marriage {B99} and divorce, is not dissimilar to the situation we have in the Uniform Securities Act, and I see that some of the Commissioners in the rear are shaking their heads up and down, so they must have been here at the same time when that Act was being considered and promulgated.

That Act was submitted as a single Act, but it had clear comment to the effect that it could be adopted in either all of its parts or one part or the second part or the third part. There were three parts; and I think Commissioner Dunham will also be able to recall that.

And so the Committee had planned to comment in such fashion that it would be clear in each state that wanted to adopt only one portion and not the other that that, of course, could be done, and exactly where, as Commissioner Braucher pointed out, the division ought to be made, if that situation should arise.

CHAIRMAN READ: Commissioner Von Herzen, can you see your way clear to going with Commissioner Braucher?

MR. VON HERZEN [Calif.]: I wish I knew what Bob had in mind. How are we going to separate the fact that this is a Uniform Marriage and Divorce Act? Can we put it both in the conjunctive and the disjunctive?

CHAIRMAN READ: If I can answer on behalf of {B100} Commissioner Braucher, I would envision his suggestion as encompassing a comment which would say that, for example, if under the statutes of your State it is necessary to separate the provisions on marriage and divorce simply so that they will fall into the proper places in the statutes, you would follow on the following procedure, and call the first part the Uniform Marriage Act and the second part the Uniform Divorce Act.

MR. VON HERZEN [Calif.]: And then would there follow, for example, the fact that of Section 102 subdivisions, perhaps, (3), (4), and (5) would be a portion of the Divorce Act, as distinguished from the Marriage Act, et cetera?

MR. HELLRING [N.J.]: That would be delineated in the comment.

CHAIRMAN READ: The comment would have to tell you how to do it, and this is the reason I’m suggesting that it might be tantamount to a motion to reject, because the drafting problem, I think, is greater than we can handle and duplicate and put on the desks in the remaining hours of this Conference.

MR. VON HERZEN [Calif.]: Incidentally, I may say, Mr. Chairman, that no one in California is familiar with the provision of the Bylaws that you cited to me, and I doubt if such a provision {B101} exists. [Laughter]

CHAIRMAN READ: I take it that it’s my responsibility to know whether it exists or not. [Laughter]

May I take it, then, that you would accept that suggestion?

MR. VON HERZEN [Calif.]: Just a moment. There are some other people who want to talk.

MR. F. T. HANSON [McCook, Nebr.]: I agree with the Commissioner from California in his desire to separate these two Acts — I think, for a different reason than he has, because he is from California.

In so far as the marriage portion of this Act is concerned, I could support that, although I liked it better before we took out the delay time. However, as far as the Divorce Act is concerned, my feeling about that can best be expressed by giving you a short illustration. This is not entirely hypothetical.

I am thinking about a case where there are no children. The husband has a home away from home. He sleeps around a little, and this is because he has a generous nature. [Laughter] He is very liberal with everything that he has to offer. [Laughter]

His wife, on the other hand, is perfectly chaste. {B102}

CHAIRMAN READ: Excuse me, sir. Is this germane to the motion?

MR. HANSON [Nebr.]: This is germane to the motion.

CHAIRMAN READ: Of separating the marriage — ?

MR. HANSON [Nebr.]: I am telling why I want to divide it.

CHAIRMAN READ: Please continue.

MR. HANSON [Nebr.]: His wife’s virtue is as far above question as that of Caesar’s wife. She does have one fault. The greatest fault she has is that she knows a few bad words, and she has from time to time caused her husband no little embarrassment by using these bad words in the presence of third persons; but she has never used these bad words on her husband — that is, not until she learns about the shack and the other benevolent activities. Now, when she used these bad words upon her husband, on top of the embarrassment that he had suffered in the past he was so shocked that the legitimate objects of matrimony, as far as he was concerned, were destroyed. So he filed a petition for dissolution, and he served, this time, his wife with a summons that she brought to the office, and she sobbed out her story, and she wound up with these words — and these are actually her words — “And the hell of it is, I still love the son of a bitch.” [Laughter]

So what do you do? You file a denial of irretrievable {B103} breakdown, and in the course of time you go up to the courthouse, and the judge hears the story. In this case he heard rather more, I think, than he is supposed to hear under the Uniform Act. At least he heard a lot more than he would be supposed to hear under the California Act.

And when he has heard all this, he says to himself: That woman is stupider than even the average woman is in affairs of the heart.

Now, some of us have occasion to thank God that women are stupid in these matters. But the judge says: She is stupider than she is allowed to be under the Uniform Law, if she thinks that her marriage has not irretrievably broken. She doesn’t have a right to forgive that much. She doesn’t have a right to continue to love and hope.

So what can the judge do? He grants the decree of dissolution. It sends the man back to his loves, which are now a shade less illicit than they were before. He doesn’t lecture the man about his fault. He doesn’t lecture either one of them about their faults, because their transgressions he must not regard, nor impute unto them their sins. This is the gospel according to the Uniform Divorce Law.

So, in effect, he said to the man: Go in peace. If you want to get married again, do so without any misgivings. {B104} Any time you feel that this marriage is the least restraint on you, come back in, sit a while, and we’ll take the shackles off you again.

On the other hand, his wife, who doesn’t understand that under the Uniform Law there are not prevailing parties, or no losing parties, who doesn’t understand that she isn’t a losing party, goes home, and her friends and her relatives all come in to sympathize with her, and all of them and all of the members of the community say that what has been done in this case is not justice. And I agree.

And so, while I could vote for the Uniform Marriage Law, I cannot vote for the Uniform Divorce Law, and if that law is ever introduced in my State while I live, I will be compelled to insist on testifying against it.

CHAIRMAN READ: Thank you, Commissioner. Commissioner Von Herzen?

MR. VON HERZEN [Calif.]: Mr. Chairman, Members of the Committee, both Commissioner Braucher and Commissioner Allison Dunham have indicated that this could be done in the same way as the Securities Act that we submitted, by having a prefatory note stating that this is submitted in this fashion, but can be adopted in either section so-and-so or section so-and-so, which refer to the Marriage Act on the one hand and the Divorce {B105} Act on the other.

I would be constrained to accept that kind of a situation if it can be placed in a prefatory note, and I believe that our product at this point would be at least acceptable as far as the states are concerned, and would have some degree — a much greater degree of — acceptability. And if I could be assured of that, that’s as far as I need to go.

CHAIRMAN READ: The Committee accepts. There is no motion on the floor.

MR. BUERGER [Buffalo, N.Y.]: I call your attention to the revision of Section 312 on page 25. The addition of trust income in line 4 requires the insertion of the words “trust income” after “earnings” in line 8. Moreover, “wage or salary” in line 15 is superfluous.

MR. HELLRING [N.J.]: Line 8 is acceptable, to change the insertion of that word in line 8. Where else did you want it?

MR. BUERGER [N.Y.]: We are no longer using the words “a wage or salary assignment”. We are just calling it “an assignment”; so “a wage or salary” in line 15 ought to be deleted, and “an” be inserted in line 14.

CHAIRMAN READ: That relates only to employees. I don’t think an employer can discharge as a result of an assignment a trust income. {B106}

MR. BUERGER [N.Y.]: I’m suggesting that to track with the rest of the section; “wage or salary” is superfluous.

CHAIRMAN READ: Thank you.

MR. NEEDHAM [R.I.]: As I recall, Mr. Chairman, when we struck the material which was in Part V, I think we struck all those sections. Now, was it the intent of the Committee that we remove Part VI, or did you mean to renumber, so that 601 now become 501?

CHAIRMAN READ: The numbering is in error, and we will take care of it.

MR. NEEDHAM [R.I.]: I have lived up to a promise.

MR. ELLIOTT [Phoenix, Ariz.]: I want to bring up a horse that we have probably flogged to death already, but I think if the Conference will listen and think about this subject, we can obviate what really is a very serious problem. I’m referring to the section on putative spouse, which I think is Section 209.

At least in the State of Arizona, where, as you all well know and have heard many times, we have the community property system, this concept of bringing a third party into a marriage creates a situation of havoc that is almost impossible to describe, as we have the section now in the Act, without brackets. It obviously is being recommended to all states, {B107} including Arizona. I think brackets around this section would take care of the problem and would serve a very useful purpose, at least so far as we in the community property system are concerned.

CHAIRMAN READ: May I interrupt you, sir? Do you propose to make a motion?

MR. ELLIOTT [Ariz.]: I move that Section 209 be bracketed.

CHAIRMAN READ: Thank you. The motion is that Section 209, Putative Spouse, be bracketed. Is there comment?

MR. HELLRING [N.J.]: I think the discussion has been lengthy on the subject, and to repeat it again would be unnecessary.

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

CHAIRMAN READ: The section is bracketed.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, is it in order to make a substantive comment about subsection (c) which appears on page 27? Would that be in order?

CHAIRMAN READ: At this point I would like to hear your suggestions, or your motions.

MR. GARDNER [Wash., D.C.]: In section (c) the obligation to support is not abated by death of the party who is obligated. I would pose one situation, where a father has had a prior marriage and had three children by that marriage, and it had been terminated by the death of the mother. He remarried, and a divorce {B108} occurred, and their was a child of the second marriage, and there was a support decree. Then he died, leaving the three children by the prior marriage and one child by the subsequent marriage, and the obligation to support would be of such amount as to consume his entire estate, which would exclude the interests of any of the children by the previous marriage. Yet that obligation could be revoked or commuted only on petition of the representative of his estate, who might have no interest in protecting the interests of the children by the prior marriage.

I ask if that would be an equitable result.

CHAIRMAN READ: Thank you.

MR. ARNOLD [Ark.]: Mr. Chairman, I would like to inquire regarding Section 312, to which there has now been added —

CHAIRMAN READ: Excuse me. I think Commissioner Gardner’s comment perhaps should be answered.

PROFESSOR KAY: I didn’t hear the beginning of it, Commissioner Gardner. I was trying to make a note; but as I understood your point, it was whether the representative of the estate would adequately represent the interests of children of a prior marriage.

MR. GARDNER [Wash., D.C.]: YES.

PROFESSOR KAY: The representative is not going to be {B109} the one who asks to have this order enforced. The children of the prior marriage themselves will be able to ask that. They will be treated as creditors under this section. All the representative of the estate can do is to ask that either it be modified or revoked, and he will be in an adverse position, presumably, to the children of the prior marriage.

MR. DUNHAM [Ill.]: I think I would make the opposite answer in the particular case. I think the personal representative is the fiduciary of all the children, and in the case posed by Commissioner Gardner, where I think he has an obligation to go in and seek a modification of the support order to look after the interests of those children, as well as the interests of the other child, just as he has an obligation in all credit situations to challenge creditor’s claims that are not good, or that are subject to modification.

Now, normally I think that will be in the proceeding anyway, so that I think Commissioner Gardner’s point is taken care of.

CHAIRMAN READ: I think Commissioner Gardner’s point is taken care of, whether you or Professor Kay are right.

MR. MILLER [La.]: It seems to me that Mr. Gardner’s is not taken care of. The second widow will be the one who will be the representative of the estate, and it will be her child who {B110} is going to have this claim to the detriment of the children of the first marriage. It seems to me that to meet Mr. Gardner’s point, which is a real point, we at least ought to stop after the word “circumstances”, and not limit —

MR. HELLRING [N.J.]: Where is that? In what section?

MR. MILLER [La.]: Line 18 of page 27. As it now reads, this second wife — and the surviving widow is normally the representative of the estate, and she would certainly not be the one who seeks to protect the children of the first marriage against the claim of her own child. The claim she would be asserting would be against the interests of the children of the prior marriage.

You ought to leave it open to the court to being revoked or modified by the court, to the extent just and proper in the circumstances.

MR. HELLRING [N.J.]: Do I understand that Commissioner Gardner’s point and yours, Commissioner Miller, is purely related to the question of who can raise the question?

MR. MILLER [La.]: Right.

MR. HELLRING [N.J.]: And is that your point as well, Commissioner Gardner?

MR. GARDNER [Wash., D.C.]: Yes, it was, because the provision by its terms makes the position of the representative of the {B111} estate the only vehicle by which you can raise the question.

MR. CALLOW [Wisc.]: Put in a period after “circumstances”.

CHAIRMAN READ: The Committee is inclined to put a period after “circumstances” in line 18.

MR. HELLRING [N.J.]: We accept the suggestion in the form put by Commissioner Miller.

MR. ARNOLD [Ark.]: I just wish to inquire of the Committee: Did they consider the change in 312, and the results it might have on so-called spendthrift clauses in trusts and wills?

MR. HELLRING [N.J.]: That point was raised by Commissioner Dunham, and Miss Kay pointed out, I think, it was included in the section for that very reason.

MR. ARNOLD [Ark.]: In other words, it is intended to abrogate those provisions?

MR. DUNHAM [Ill.]: It is my thought in putting it in the form in which I suggested it — and it is in that form — that it left open the question of whether in the particular jurisdiction a spendthrift trust can be attacked on this ground. As many of you know, in Griswold’s book, published a number of years ago, there was an increasing number of states that were permitting spendthrift thrusts to be attacked on a series of grounds, and the biggest ground was the support ground, and it seemed to me that what this does is leave it to the state. {B112}

If it’s a nonspendthrift trust, this clearly operates. If it is a spendthrift trust and the jurisdiction permits spendthrift trusts to be attacked by a support attachment, demand, an assignment of income from a spendthrift trust — if that is the law of the jurisdiction, that would apply. If it is not the law of the jurisdiction, then it seems to me that the situation is that the words would indicate this trustee can’t respond.

MR. HELLRING [N.J.]: We want to be associated with those remarks. That’s exactly the way the status of the law is, as we see it. We think perhaps one thing could be added, that the very way the words “trust income” are included may give just a little push in favor of those tendencies in those jurisdictions which have begun to permit the limitation on spendthrift provisions where the point is involved.

MR. ARNOLD [Ark.]: I think you are correct that it would have that effect. In fact, I think it would make it mandatory that if the application were filed, the court would have to give consideration to it, as a result of the Act, and I would therefore move you, sir, that the language be inserted, leaving it to the Committee as to the language, that this be done only if it’s otherwise authorized by the jurisprudence of the state.

CHAIRMAN READ: Could you settle for a comment? {B113}

MR. ARNOLD [Ark.]: I could settle for a comment, but I judged that the Committee would not have favored such a comment.

CHAIRMAN READ: I would take it that there will be a comment. Does that dispose of your motion?

MR. ARNOLD [Ark.]: Yes, sir.

CHAIRMAN READ: Thank you. Will you remark further? [No one responded.]

MR. SULLIVAN [Mont.]: I move that the Committee of the Whole rise, report that it has had under consideration the Uniform Marriage and Divorce Act, has considered it section by section, has made certain changes and amendments, and recommends that the Act, as so amended by approved and presented to the Conference for a vote by the states for final adoption.

[The motion was seconded by Mr. Merrill.]

CHAIRMAN READ: You have heard the motion.

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

From the

Handbook of the National Conference of Commissioners

on Uniform State Laws and

Proceedings of the Annual Conference

Vail, Colorado

1971

Page 44

Minutes of the Midyear Meeting of the Executive Committee

held February 6-7, 1971, Chicago, Illinois

The Midyear Meeting of the Executive Committee of the National Conference of Commissioners on Uniform State Laws was held at the Palmer House, Chicago, Illinois, commencing on February 6, 1871 at 10 a.m.

Vice President Sullivan submitted the following report on the activities of the Sections:

Page 50-1

Section F, William G. Callow, Chairman

Special Committee on Marriage and Divorce Laws, Maurice H. Merrill, Chairman.

Since the promulgation of the Uniform Marriage and Divorce Act at the annual meeting of the Conference in August, 1970, work has gone forward on the preparation of Comments. These comments should be ready for transcription late in 1970 or early 1971.

Meanwhile, the act was presented to the Council of the Section of Family Law by Orpha A. Merrill, Special Advisor, and by Maurice H. Merrill, Chairman of the Committee. Action by the Council was deferred at that time.

On November 28 and 29, a special meeting of the Council was called to consider the Act, and the Committee was invited to be represented. Due to prior commitments, the Chairman and Vice Chairman could not be present, but the Committee was represented by Messrs. Callow, Hellring, and O’Connell. After considerable discussion, the Council declined to approve the act at this time. Several suggestions for change were made. It was indicated that further consultation between the Committee and the Section of Family Law’s Liaison Committee would be desirable. It is planned to pursue this matter, in the hope of arranging a meeting for the spring of 1971.

In the meantime, approval of the Act by the American Bar Association has been held up, but it is planned to go forward with the promotion of legislative action in the various states.

Page 85-6

Fourteenth Session

Friday Afternoon, August 27, 1971

Minutes of Sixth Meeting of Executive Committee

The sixth meeting of the Executive Committee of the National Conference of Commissioners on Uniform State Laws meeting in its eightieth year in Vail, Colorado, was held at 8:00 A.M. on Thursday, August 26, 1971, at Manor Vail Lodge.

The Vice President submitted the following supplemental report giving the results of the Sunday meetings of the Sections:

Page 89

Report of Section F

Special Committee on Uniform Divorce and Marriage Act.

Chairman Merrill expanded on the written report filed by advising the Section that Felix Infausto and Ralph Podell, assigned representatives of the Family Law Council, were attending the Vail Conference and were meeting with the Special Committee in an effort to resolve differences and that progress was being made and that the recommended amendments would be laid before the Conference for approval during the Conference.

The Section accepted the report and pursued a study of the proposed changes throughout the day and evening. The Section recommended continuation of the Special Committee. Representatives of the Special Committee have requested a one-day meeting with the full Family Law Council this fall to explain the Act and seek approval.

Page 93-4

President Jenner inquired of the Executive Secretary whether copies of all of the Acts and Amendments to be voted on for approval were on the Commissioners’ desks and Mrs. Jones reported that all had been placed on the desks at the last session.

Mr. Callow moved the adoption of the following resolution:

Be It Resolved, By the National Conference of Commissioners on Uniform State Laws, meeting in its 80th year in Vail, Colorado, on the 27th day of August, 1971, that the Uniform Marriage and Divorce Act as Amended is hereby approved and adopted as a Uniform Act, and that the Act be now submitted to the Board of Governors of the American Bar Association for its consideration, with the recommendation that it be approved by the American Bar Association, and that it be promulgated for enactment by the legislatures of the several states, the District of Columbia, the Commonwealth of Puerto Rico, and the Insular Possessions of the United States.

The motion was seconded, put to a vote, and carried.

Whereupon the roll of the states was called with the following results:

Ayes: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming.

Noes: None.

Secretary Needham announced that there were 48 affirmative votes and no negative votes.

President Jenner declared the motion carried. (For Act as adopted, see page 241 of Handbook)

Commissioner Burdick reported that the Oregon Commissioners who were unavoidably absent had requested him to announce that, if present, they would vote “aye” on all of the Acts to be submitted.

From the

Handbook of the National Conference of Commissioners

on Uniform State Laws and

Proceedings of the Annual Conference

San Francisco, California

1972

Page 55-6

Minutes of the Midyear Meeting of Executive Committee

Held February 5-6, 1972, New Orleans, Louisiana

The Midyear Meeting of the Executive Committee of the National Conference of Commissioners on Uniform State Laws was held at the Marie Antoinette Hotel, New Orleans, Louisiana, commencing on February 5, 1972, at 10:00 AM.

Report of Secretary

Since the 1971 Annual Meeting, the members of the Executive Committee were asked to vote on the question of whether the Comments of the American Bar Association Family Law Section concerning the Uniform Marriage and Divorce Act should be printed and distributed with the Act. The vote was against the proposition.

Mid-Year Report of Vice President.

Page 70

Division E, Don J. McClenahan, Chairman

Special Committee on Uniform Marriage and Divorce Act, Maurice H. Merrill, Chairman.

This Act was approved in 1970 and revised at the 1971 annual meeting. Four or five states have adopted acts formulated on the basic principle of the Act, namely, nonfault divorce. There is interest in the Act by a number of states, but the Committee does not know if it will be introduced in any other states during 1972. The comments for the revised draft have been completed. The Committee will continue in standby status and do what it can to encourage adoption of the Act. There is no need for change in the membership of the Committee. Discussions are continuing with the Family Law Section of the ABA. There are some differences of opinion on certain sections of the Act with members of the Family Law Section, and efforts are continuing to resolve them. The Act, as amended in 1971, will be presented for approval to the House of Delegates of the American Bar Association at the 1972 mid-year meeting.

Report of the Vice President on Committee Work

page 170

Division E, Don J. McClenahan, Chairman.

Special Committee on Uniform Marriage and Divorce Act, Maurice H. Merrill, Chairman.

To date the Chairman reports that the following states have either adopted the Act or have Acts so similar that he considers them with adoption of the Act: Colorado, Kentucky, California, and Iowa.

The principle of no-fault divorce has been considered in other states and the Act is responsible for this interest. It is expected that the Act will continue to have influence in this field for some time to come. The Committee should be continued for two reasons. First, the Family Law Section of the ABA has been instructed to draft its version of the Uniform Marriage and Divorce Act and submit it to the Conference. This Committee should consider this draft. The second reason is that inquiries are still being addressed to the Committee about it.

Proceedings in Committee of the Whole

Amendments to Uniform Marriage and Divorce Act

Hyannis, Massachusetts

Friday Morning, July 27, 1973

Mr. Alfred C. Hagan of Idaho, presiding;

Mr. Maurice H. Merrill of Oklahoma presenting the Amendments.

CHAIRMAN HAGAN: The proposed Amendments were distributed yesterday afternoon, and they are dated July 26, 1973, so that you can find them, and are headed “Approved by Special Committee on June 22, 1973”. They were distributed to you about two o’clock yesterday.

Are there any other members of the Special Committee who have not come forward? They desire your attendance up here.

Commissioner Merrill, as Chairman of the Committee, will explain the special report which is in your big book, and will elaborate on that report to some extent before we go over the Amendments line by line. Commissioner Merrill!

MR. MERRILL: Mr. Chairman and members of the Conference, may I crave your indulgence for a moment to recite some history.

As you all know, we went through a long and arduous task in dealing with the problem of the Uniform Marriage and Divorce Act. We had invoked the assistance — advice — of {2} the Section of Family Law of the American Bar Association, along with many other consultants and advisers, but with the customary independence of the Conference we considered that we were charged with the responsibility for the final determination of form and substance of the draft.

For one reason or another, the Family Law Section felt that they should have been accorded a more dominant role than that simply of advisers — consultants. When the matter came up after the promulgation of the Act by action of the Conference for approval by the American Bar Association, while we secured the approval of the Board of Governors and the recommendation that it be approved, the Family Law Section opposed that action on the floor of the House of Delegates, and succeeded for the time being in blocking action.

As a result of conversation over quite a period of time, the American Bar Association delegates at the last session said: Well, let the Section of Family Law prepare a proposed draft and submit it to the Conference, and see if that can be approved.

That was the state of things as of last fall and winter. We got the draft. As Chairman, I got the impression on reading it and preparing an analysis for the use of our Committee that we simply could not accept that draft in {3} toto, and my impression was that we were asked to take it in toto.

Later on, as a result of consultation and consideration with the members of the Committee, it developed that several members of the Committee believed that it would not be necessary to adopt in toto the proposals of the Family Law Section, but that there were certain items which could be considered on which we might be able to work out acceptance of certain matters that probably would be an improvement to the draft as amended in 1971, and so we held a Committee meeting to go over that draft.

The result of that was that we came up with four major proposals — well, really, with five — but one of them was not by any means the acceptance of the Family Law Section’s draft for a change in Section 201. Instead, Judge Burdick contributed a very fine draft, and suggested that, definitely, we did need a changed definition of “marriage”, and his draft met with the approval of the Committee.

Now, originally — and you will find that in your copies of the report of the Committee — we felt that, since this was not a Family Law Section matter at all, probably we would let that particular amendment follow the ususal course of changes in Conference drafts; but after further {4} consideration we have determined that we will put it before you along with the various charges which we have suggested, with a view to seeing if we can come to a rapprochement with the Family Law Section. And I should say that several members of our Committee have indicated reasons to believe that this can be done, and I will ask them at the proper time, if there are questions, to give reasons for the faith that is in them, because I myself was not able to be in on the conferences that led them to that belief.

Now, with that as an introduction, let me refer you to the draft dated July 26, 1973, entitled “Revisions of Uniform Marriage and Divorce Act Approved by Special Committee on June 22, 1973.” It’s been on your desks since yesterday afternoon, and it is there.

Unless there are questions that someone would like to raise at this time, I will proceed to a reading of the sections section by section, line by line, and then let me say, too, that because of the need for action on the proposals as a package, I would as soon defer individual discussion until we have completed the line by line reading of the proposals. Unless someone urgently desires to have discussion as we go along and to ask questions, I would like that to be the order.

MR. NEEDHAM [Providence, R.I.]: Mr. Chairman, do I understand that {5} we may consider for adoption, for instance, 201, and we may by a separate motion at a later time put a motion to a specific section that we not approve it, or are we going to read it all the way through and take them all, or not take them all, or can we take some and reject some?

CHAIRMAN HAGAN: With Commissioner Merrill’s indulgence, I think we’ll read each section, and then have comments.

MR. NEEDHAM [R.I.]: And take a vote on each section?

CHAIRMAN HAGAN: We will wait for approval of the total package of amendments, rather than vote on each section.

MR. MERRILL: The reason for that, if I may supplement, is that we are recommending the whole package. We think they are desirable additions. We are not recommending them for adoption contingent with or upon approval by the Family Law Section.

We do hope, of course, that as a result of these modifications the Family Law Section will withdraw its opposition before the House of Delegates, but we have no binding agreement with them; and furthermore, this Committee is recommending these sections for adoption whether or no.

And, of course, that carries with it the proposition, Commissioner, that the Conference is free to recommend {6} disapproval of any particular section, but we also would say to you that we feel that any serious modification of those sections might jeopardize the chance of an agreement with Family Law.

Does that answer your question, Commissioner?

MR. NEEDHAM [R.I.]: Yes.

MR. MERRILL: Very well. I will now proceed with the sections as you find them in your leaflet, and our first recommendation is a revised form of Section 201, which would read as follows:

Section 201. Formalities.

Marriage is a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential. A marriage license, solemnized, and registered as provided in this Act is valid in this State. A marriage may be contracted, maintained, invalidated or dissolved only as provided by the law of this State.

CHAIRMAN HAGAN: Any comments on Section 201?

MR. WADE [Nashville, Tenn.]: I wonder, in connection with the last sentence, about the aspect of conflict of laws. When you say “only as provided by the law of this State”, you seem to be implying that the law of another state may not apply in {7} connection with it.

MR. MERRILL: Commissioner, this does not deal with the conflicts problem. That is simply an intra-state matter. We have another section — there’s another section which has already been approved, and which has not been put up, as I understand it, for modification — that deals with the matter of interstate recognition. That was voted upon twice, as I recall, by the Conference in connection with some objections which the Family Law Section had.

They had it up again in the matters that were submitted to this Committee by them in their draft, and that happened to be a section that we recommend against fooling with at all.

MR. WADE [Tenn.]: Well, it may be helpful if a comment on this section would indicate that it is to be read in the light of the conflicts section.

MR. MERRILL: Thank you. And I’m sure we will do that with our comments.

MR. JOINER [Detroit, Mich.]: Mr. Chairman, I’d like to follow on that particular comment of Commissioner Wade’s. What does the conflicts section say that would over-call this? Because this is a very drastic sentence.

MR. HELLRING [Newark, N.J.]: It’s Section 210, and it reads: {8}

All marriages contracted within this State prior to the effective date of this Act or outside this State that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicil of the parties are valid in this State.

MR. JOINER [Mich.]: That covers the “contracted” and “maintained”, but it doesn’t cover the “invalidated of dissolved” provision in this section. This section would say, if you read it literally, that if you contracted a marriage in this State, this State only could dissolve that marriage, and that obviously is not the conclusion we desire to reach.

MR. MERRILL: I don’t think, with all due respect to Commissioner Joiner, that this follows from the language that is used. If you feel that a comment is necessary, we will incorporate that in the comment as well.

MR. JOINER [Mich.]: Well, I really don’t think a comment is what’s called for. Why is this sentence so important. What does this particular sentence add?

MR. MERRILL: As a matter of fact, this language — and possibly if Judge Burdick is present, since it was his suggestion, he can give the philosophy back of that. Apparently he is not present. {9}

As I recall, in connection with our discussion, his view was that this is simply a domestic proposition directed to the courts of the enacting state, and would obviously have no application to situations beyond the jurisdiction of that state. You are aware, of course, of the general constitutional conflict rule, that domicil or residence within the state gives jurisdiction over the marital relationship of the parties, and we are not dealing with the problem of interstate recognition at all here.

MR. JOINER [Mich.]: Well, I know we are not, unless we do inadvertently. That’s the problem I’m getting at here, that the language is sufficiently broad, it seems to me, that it gets us into that, whether we need to or not.

MR. MERRILL: Well, the judgment of the Committee, I think, is that it is not that broad, especially when related to the other sections of the Act.

MR. NEEDHAM [R.I.]: Mr. Chairman, I join with the prior Commissioner. I think that when you are talking about maintaining or contracting a marriage, you are talking about one animal. When you go to the trouble of saying clearly that it is a civil contract, and then you refer to termination of a civil contract, and you refer to the law of the place of the making of the contract as the only law which will {10} govern its termination, I think you are in a conflicts problem and I would think a foreign jurisdiction taking jurisdiction over people who moved from the State of Rhode Island to Massachusetts, in looking at the place of the contract, would have at least some reasonable basis to say that there must be grounds for terminating it according to the law of Rhode Island, the place of the making, and I don’t think that’s what we intend.

MR. HELLRING [N.J.]: Mr. Chairman, the last sentence of this proposed revised Section 201 is the part which is creating the trouble, obviously, and the comments made from the floor by Commissioners Joiner and Needham and others accord with, generally, the view of that portion of the Special Committee that’s sitting up here.

That sentence, however, needs to be, I think, discussed by Judge Burdick, who was the architect of this formulation. He is now in the room, and I think he ought to be given an opportunity to discuss it.

This arose out of a formulation which the Council of the Family Law Section was proposing, and Judge Burdick was able to improve upon it sufficiently so that the Special Committee went along with it; but that last sentence, as to which these comments have been made, seems to the members of {11} the Special Committee sitting up here to be unnecessary.

CHAIRMAN HAGAN: Judge Burdick, just so you will be appraised, we are discussing the last sentence of Section 201, “A marriage may be contracted, maintained, invalidated or dissolved only as provided by the law of this State.” The buck appears to have been passed to you, so I will recognize you.

MR. BURDICK [N.D.]: I don’t think that this provision was intended to solve conflict of laws problems. It is a sentence designed primarily for intra-state treatment of a particular marriage, and I don’t know if this sheds any light on the situation or not, but it’s not intended to solve conflict of law problems.

MR. HELLRING [N.J.]: In that case, I think, speaking for the members of the Special Committee that are sitting up here, we’d like with the permission of the floor to have you consider this revised Section 201 without the last sentence, as suggested by Commissioners Needham and Joiner.

CHAIRMAN HAGAN: Do I understand, Commissioner Hellring, that the Committee is offering to withdraw the last sentence.

MR. BURDICK [N.D.]: I have no objection.

MR. MERRILL: Not wholly. The chair would like to {12} ask Judge Burdick one other question which I think might help to solve the problem which both Commissioner Joiner and Commissioner Needham have thought they saw, and that is this: that last sentence does not say “May be contracted, maintained, invalidated or dissolved only as provided by the law of this State.” A part of the law of this State is going to be that Section 210 to which we had reference, and I think that amounts to incorporation by reference.

MR. BURDICK [N.D.]: I think this is sort of a — but I’ll defer.

MR. JOINER [Mich.]: I was going to make a motion, but I don’t want to make a motion if—

CHAIRMAN HAGAN: The Committee is not unanimous, apparently, in their desire to withdraw this last sentence; so that’s where we’ll leave it. I believe Commissioner Dickerson has the floor at this point.

MR. DICKERSON [Bloomington, Ind.]: I’m a little confused about the relationship of the second sentence to the third sentence. The second sentence seems to be presumptive with respect to what it takes to get into a marriage. In other words if you comply with three aspects of this Act, and this Act alone, then you have got a valid marriage.

Now, I’m not familiar with the rest of the Act, {13} but does that preempt such things as incestuous marriages and marriage between epileptics?

MR. MERRILL: If you all will remember, the rest of the Act does contain a great many things, including the problem of who is eligible to contract marriage, what marriages are invalid, what marriages are subject to declarations of invalidity, which we substituted for the traditional annulment phrase, and so on; so that this does not preempt the other portions of the Act.

MR. BURDICK [N.D.]: Mr. Chairman, I think some of the ambiguity here — and I think your explanation, Chairman Merrill, is the legal answer to the problem. In other words, Section 210 takes care of it.

I think it may be clearer if a period were added after the word “law” in line 6, instead of “of this State”, so that it would read: “A marriage may be contracted, maintained, invalidated or dissolved only as provided by law.” And then you would, I think, take care of your problem.

MR. MERRILL: Your suggestion is to eliminate “the” and then put a period after “law”.

MR. BURDICK [N.D.]: That would remove a discrepancy between the second and third sentences, and the third sentence seems so be on a preemptive basis. I think the two sentences {14} should be: co-extensive. I wonder whether we want to press uniformity to that extent, however.

MR. MERRILL: May I inquire whether this change would meet Commissioner Joiner’s doubts?

MR. JOINER [Mich.]: The answer is: It solves the problem I raised, I think, but it also has in the Act a sentence containing some 15 or 20 words which seem to me to add absolutely nothing to the Act.

MR. HELLRING [N.J.]: Mr, Chairman — Commissioner Joiner, it may be helpful to read Section 201 as it is in the present Uniform Marriage and Divorce Act. Section 201 as it now appears is a single sentence, tow and a half lines, and it says:

A marriage between a man and a woman, licensed, solemnized, and registered as provided in this Act is valid in this State.

Now, various suggestions have been made by the Family Law Section. They wanted to import the proposition that it was a civil contract, and wanted reference separately to the licensing and solemnization and registration, and the product you see here is the result of attempting to say in a somewhat larger number of words the same thing as we said before, and I think that it accomplishes it whether you leave in the last sentence and stop after the word “law”, {15} as Judge Burdick last suggested, or whether you take out the last sentence.

CHAIRMAN HAGAN: Well, at least at this stage I think the Committee is willing to accept Judge Burdick’s suggestion. Is that correct?

MR. MERRILL: Yes, it is.

MR. BURDICK [N.D.]: I would be satisfied with that.

MR. MERRILL: Then perhaps we will not need a motion.

MR. PACKEL [Harrisburg, Penn.]: May I make another suggestion which I think can take care of the whole problem? And that is, if that last sentence were changed and began: “aside from rules of conflict of laws”, and then it continues the way it is, except at the very end, “only as provided by the local law of this State”.

There we would clearly be saying that if it’s a purely internal matter, this controls, but otherwise it’s a matter of conflict of laws.

MR. MERRILL: Frankly, as a matter of judicial interpretation, I would be troubled by introducing the term “local law”, because that carries with it in many states a peculiar connotation.

MR BURDICK [N.D.]: I was just going to say again that I {16} think my suggested amendment to provide in line 6 “only as provided by law” eliminates the conflict of laws problem.

CHAIRMAN HAGAN: The Committee has taken that suggestion, and we will change the last sentence accordingly.

MR. LANGROCK [Middlebury, Vt.]: When Bernie read the old definition, I didn’t notice the words “personal relationship”, and I take it this is a new addition to this section.

MR. HELLRING [N.J.]: Yes, it is. Yes, it is.

The one thing that the Council of the Family Law Section was urging, and which the Committee was unwilling to accept, was a suggestion that there be put into the language some reference to the fact that the State has an interest. And we rejected that.

MR. LANGROCK [Vt.]: Well, the thing that bothers me about this is that I’m not sure, first of all, what a personal relationship is; and if it’s talking about consummation of a marriage, does this present a problem? Could you make a showing where a marriage is everything else, but there is no personal relationship, and therefore it’s not a marriage based upon this Act? [Laughter]

MR. MERRILL: Frankly, I am unable to visualize a situation in which an alleged marriage wouldn’t be some form of — {17}

MR. LANGROCK [Vt.]: Take the situation where two people are married. We have a proxy situation. Say they had never met each other — the old family situation — and ten minutes later one of the parties drops dead.

Now, at this point there is a sizable estate involved. Are we opening litigation by these words, and do they really add anything?

MR. MERRILL: Again, all I can say in response is that I would say there’s a personal relationship there. It may be of a tenuous character, but it’s still there.

MR. DICKERSON [Ind.]: I’d like to know whether all of the requirements for validity of a marriage are subsumed under the three terms licensing, solemnization, and registration, as appears in the second sentence. These look like mere procedural or technical aspects of entering into marriage, and do not reach to the more basic requirements of validity.

On that basis, it seems strange to say that if you merely followed three of the technical requirements, you had a valid marriage, even though you didn’t have some of the other essentials. In that case, as I say, I think that would be a rather peculiar result.

On the other hand, if all the requirements are subsumed under this, all this says, really, is {18} that a marriage that complies with this Act is valid, and that does not seem to me a very cosmic statement for this Conference to be perpetrating on the public. [Laughter]

MR. HELLRING [N.J.]: Commissioner Dickerson, you are absolutely right. This is one of the five amendments that we are presenting. It is the least important section and the least important amendment, but it happens to be one that the Council of the Family Law Section is concerned with.

MR. DICKERSON [Ind.]: It would greatly improve my day if you would strike that sentence. [Laughter]

MR. MERRILL: Much as I would like to improve your day, Commissioner Dickerson, let me say that I think your experience with legislative interpretation and the problems that you get into with courts would lead you to feel that there are times when maybe you should err on the side of verbosity, rather than compression.

MR. WORLEY [Kingsport, Tenn.]: I have the opposite concern, the concern that registration ought not to be a condition precedent to the validity of the relationship. And despite the sanctity of the sentence by reasons of its origin in the original Act, I would like the Committee to respond to that concern.

MR. MERRILL: Our understanding, Commissioner, is that the other portions of the Act include all these other {19} things to which you referred.

For instance, you may recall that we have alternative drafts when we come to the problem of common law marriage, which was a great bone of contention in the Family Law Section and even among the Commissioners themselves when the draft was up for consideration. We solved it by putting in alternative drafts, one referring to common law marriage, and the other forbidding common law marriage; and “solemnized” in our understanding includes those acts which in the states which recognize common law marriage do constitute common law marriage. “Solemnized” is a very expansive word.

MR. WORLEY [Tenn.]: Is it the intent of the Committee to make registration a condition precedent to a valid marriage?

MR. MERRILL: Only if there is a particular situation — and we have a registration provision later on — in which that marriage should be registered.

For instance, in our alternative with respect to common law marriage there was a provision for the states which were abolishing common law marriage to provide for the registration of a common law marriage which had been validly consummated, or was consummated in another state; and this would apply there. It would not apply in a state which was accepting common law marriage as a regular, valid institution, {20} because there is no provision for registering that marriage.

MR. WORLEY [Tenn.]: Well, it’s one thing to require registration as a condition precedent to the consummation of a common law marriage, and quite another to make it precedent to the validity of any marriage solemnized in this state.

MR. MERRILL: But only in this Act, Commissioner. If it’s not required in the other sections of this Act, then, obviously, that particular verb has no application.

MR. WORLEY [Tenn.]: That strains my faith, but since I don’t have the rest of the Act, I should be satisfied, I suppose.

MR. NEEDHAM [R.I.]: I’m troubled about this situation. With the exception, as I recall, of those provisions of the Act which recognize the validity of preexisting and foreign marriages, this is the only area in the Act where we say a certain thing is a valid marriage.

Now, it doesn’t seem to me that we ought to have a Section 201 which says if it’s registered, solemnized, and — your third word.

MR. MERRILL: Licensed.

MR. NEEDHAM [R.I.]: [Continuing] That it is a valid marriage. You can pose a situation of a brother and sister getting a license, going through a formal ceremony, and having {21} the marriage registered. Now, that section says that is a valid marriage.

Now, the only way that we can say that it’s not a valid marriage is to go to another section, and we put one section in conflict with another in order to say it’s not a valid marriage.

MR. MERRILL: I personally must say that I feel that this is not a conflict of sections but a harmonization of sections.

MR. HELLRING [N.J.]: I agree with the Chairman on that comment. You see, Commissioner Needham, Section 201 talks about being licensed, solemnized, and registered as provided in this Act, and then in the following sections you have Section 202, a section on marriage license and marriage certificate. Section 203 deals with the license to marry. Section 204 deals with the effective date of the license, and so forth — including Section 206, which deals in detail with both solemnization and registration, including the provision for registration by the clerk upon receipt of the marriage certificate.

MR. NEEDHAM [R.I.]: Commissioner, in any of those sections you have just cited is there a reference to the fact that a marriage between a brother and sister would be invalid, {22} or is that another section?

MR. HELLRING [N.J.]: That’s not one that I happened to mention just now. There is a section called “Prohibited Marriages”. I’m looking for it now. [Referring to papers] It’s Section 207, and it says the following:

Marriages are prohibited:

(1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

(2) A marriage between an ancestor and a descendant or between a brother and a sister —

MR. NEEDHAM [R.I.]: As I recall what you have referred me to, you have said “A marriage licensed . . . as provided by this Act”, and if we go to the licensing sections of the Act, we find nothing about an incestuous marriage. It would be solemnized as provided by the Act. And there is no reference to an incestuous marriage in . . .

MR. HELLRING [N.J.]: Let me correct you. There is. There is a reference right in Section 202. Under “Marriage License and Marriage Certificate” you are required to set forth whether the parties are related to each other; and if so, the relationship. So it all ties in. There has been no gap, so to speak, on any of that. {23}

I understand your concern, because, unfortunately, you don’t have the whole Act before you. I assure you, however, that this small change in Section 201 does not affect the very orderly collection of the sections dealing with the subject of marriage, and their licensing, solemnization, and registering.

MR. LANGROCK [Vt.]: In reading this, it seems to me the old section is so much better. We have got so much language in here which is just meaningless. The only question I ask is this: Is this necessary to make the Family Law Section happy?

If it is, let’s leave it alone and get on to something else. But I don’t think it’s anything that, as far as tight draftsmanship — it’s a long way from that.

MR. MERRILL: It is the judgment of the Committee that this will add to the happiness of the Family Law Section.

CHAIRMAN HAGAN: All right, we will move on now to section 202 as proposed.

MR. MERRILL: Now, with reference to Section 202, there was a long and elaborate proposal from the Family Law Section, most of which the Committee felt was not at all desirable and should not be accepted, but we did come to the conclusion that one proposal which the Committee drafted {24} would be advisable, and that is to add a subparagraph (5) to subsection (a) of Section 202 as it has been comprised in the original Act, and I think possibly — let me first read that new paragraph (5) and then I will ask Commissioner Hellring to read the entire original provision. I think that might help the comprehension of the group, to do it that way.

MR. HELLRING [N.J.]: Right.

MR. MERRILL: The new proposed subparagraph (5) is:

(5) The name and date of birth of any child, of whom both parties are parents, born prior to the making of the application unless their parental rights and the parent and child relationship with respect to the child have been terminated.

That is the proposal as to subsection (5). Now, Commissioner Hellring, if you will put that in context —

MR. HELLRING [N.J.]: Section 202 deals with “Marriage License and Marriage Certificate”, and generally sets forth what the form shall be, and Section 202 (a), which is the main part of it, reads as follows:

[The Secretary of State,] [Commissioner of Public Health,] [ or appropriate authority] shall prescribe the form for an application for a marriage license, which shall include the following information: {25}

And under (a) as the statute now reads — as the Act now reads — there are four subsections:

(1) It is required that there be listed the name, sex, occupation, address, social security number, date and place of birth of each party to the proposed marriage;

(2) If either party was previously married, his name and the date, place, and court in which the marriage was dissolved or declared invalid, or the date and place of the death of the former spouse;

(3) Name and address of the parent or guardian of each party; and

(4) Whether the parties are related to each other, and if so, their relationship.

The proposed amendment would add a (5) in the form as read by Chairman Merrill.

The Family Law Section, in making this proposal, said in its comment that the proposed new subdivision (5) is intended to tie in with other sections of the Act which legitimate children whose parents subsequently marry. In addition, there are other provisions in the Act alerting attention to the existence of children and the need for protecting {26} their interests. And the proposed section, they say, would constitute an admission of paternity and might serve to save the legitimacy of the children.

This, although not one of the important amendments as the Special Committee sees it — these first two seem to be the unimportant ones; it’s the last three that we are coming to that are going to be much more important. But this one, it seemed to us, was not something which would in any sense do violence to the concept of the sections on marriage.

MR. DUNHAM [Ill.]: I have a question of information. I have forgotten what the original Act says. What do we now say if the parties in the application make an erroneous statement as to any one of the things that they are required to say?

MR. MERRILL: There is a curative section.

CHAIRMAN HAGAN: Are there any sanctions — I believe the question is — for failure to make proper application? How does it affect the validity of the marriage?

MR. MERRILL: Can you locate that section quickly?

MR. HELLRING [N.J.]: I’m looking.

MR. MERRILL: In essence, as the chair recalls, there is a provision for the good faith of the parties, and the erroneous misstatement is regarded as not in itself an {27} invalidating factor.

MR. DUNHAM [Ill.]: That would be applicable to (5) too, because I think that the conclusion of law that the parties are required to state in the proposed new (5) about the parental rights and the parent and child relationship having been terminated — answering that correctly — they may not know what the adoption proceeding is.

MR. MERRILL: No, there is a curative provision with respect to that.

CHAIRMAN HAGAN: Any further comment on 202? [There was none.] All right, we’ll move to Section 302.

MR. MERRILL: Now we come to one of those provisions which, as Commissioner Hellring has stated, is regarded as very essential to the prospect of agreement with the Family Law Section, and once again we are not buying the entire Section 302 as the Family Law Section had originally proposed it, but we think we are meeting their major objective. And if you will turn to page 2 of your flier, the revisions are in subsections (a) (2) and (a) (4).

Now, all else we leave untouched from the Act as it was finally dealt with at Vail in 1972.

Now, in (a) (2) we have this language:

(a) (2) the court finds that the marriage is {28} irretrievably broken, which finding shall be supported by evidence (a) that the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding, or, (b) that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage, and that there is no reasonable prospect of reconciliation, and

And then it goes to (a) (3), which we have left unchanged. Then in (a) (4) the language will be:

to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property; or provided an adjourned hearing to complete these matters.

CHAIRMAN HAGAN: Any comment?

MR. JENNER [Chicago, Ill.]: Mr. Chairman, it seems to me quite unfortunate and unwise to force people, one or the other of the parties, to leave the home and separate for six months as a condition precedent to the dissolution of a marriage that no longer exists in fact, though temporarily in law, and that that sub (a) of (a) (2) is at odds with the basic {29} premise of the Uniform Marriage and Divorce Act.

And I would move you, Mr. Chairman —

MR. MERRILL: [Interposing] Commissioner Jenner, if I may, since you are about to move — I would like for you to reserve your motion until I have explained the philosophy back of the way this provision is framed.

Now, I quite agree. I am in harmony with your point of view. On the other hand, this matter of a time limitation has been very dear to the hearts of the Family Law Section, and what we are doing — you will note that (a) and (b) are alternatives in that revision, and what we really expect is that (a) will be used only by those persons who have actually lived separate and apart for more than 180 days, if they wish to do that, but that (b) affords the way of maintaining our principle that the irretrievable breakdown duly found by the court after proper hearing and all the other judicial proceedings that we have provided in other parts of the Act — that this is shown by this serious marital discord which adversely affects the attitude of one or both of the parties toward the marriage.

And if there is that serious effect on the attitude of one party toward the marriage, and there is no reasonable prospect of reconciliation — and that sentence, as I recall, {30} was part of our original draft — when you get that, you have an alternative method which is available, to maintain the principles of our Act. It is not dependent upon the proof of the 180 days’ separation — and with the Family Law Section, I recall, it was twice that time — and we feel that this will afford the opportunity for the Family Law Section to say: Well, the major objectives of our proposal have been met, and we’ll meet you on that.

Now, with that explanation, I would suggest — and, obviously, I cannot control and would not try to, if I could — but I would suggest that perhaps the motion to strike, or whatever you had in mind, might well be omitted.

MR. WADE [Tenn.]: Mr. Chairman, I think this might be helped if (a) and (b) were reversed. (b) is the one which is setting forth the real basis, and (a) is simply giving a mechanical means for doing it. If you put (a) first, you give the impression that you do have to have the separation for that time.

MR. HELLRING [N.J.]: Commissioner Wade, I don’t think it makes any difference whether (a) is first and (b) is second, or whether they are reversed. I agree with you that a fast reading of it may indicate more clearly that you don’t have to have the 180 days’ separation in order to establish {31} irretrievable breakdown, if they were reversed.

I do think that at this moment it would be fair for us to emphasize to the Conference — that is, the Committee of the Whole — that this is one of the two items which we consider to be of some substance on which we are attempting to meet the objections of the Council of the Family Law Section. Now, we’re not meeting either of their objections by adopting their proposal. We are trying to meet them by some step in the direction of their ideas.

As Commissioner Merrill pointed out, the Council of the Family Law Section has had it as a flag held high by its spiritual leader, Professor Foster of the New York University Law School, that really there ought not to be any divorces granted on irretrievable breakdown unless you have a separation time standard, and in those states where he has been advising legislatures, this has been largely the result.

Now, what we have done here is to import the idea of a stated period of time of separation — not the stated period that they would like; they suggested a year and a half. They were willing to come down to a year. We have talked about 180 days, and all we have done here, really, is to retain exactly what we had before, but to add something that the parties can do in case they don’t want to talk about discord, {32} in case they want to do it purely on the basis of a time period of living separate and apart. This does not, as the Committee sees it, do any violence to our original Section 302 — none whatever.

I think it should be pointed out, by the way, that the material that you have before you which appears to amend only sections (a) (2) and (a) (4) omits one thing, and that is that the old section (a) (2) has become section (a) (3) in between. That’s the one that deals with the requirements for meeting certain conciliation provisions provided for in the statute.

But it’s our concept that this change here, although significant because it imports the idea of living separate and apart as one of the ways of proving irretrievable breakdown, and therefore does include within it a major idea of the Council of the Family Law Section — that it does not do violence in any degree to our original Act as it now stands, but adds something which the parties can use if they want to.

MR. MILLER [Baton Rouge, La.]: As I recall the discussion several years ago when this Act was finally approved, there was considerable doubt among the minds of some of the Commissioners — including my own and Mr. Daggett’s, who was from Louisiana at that time — that irretrievable breakdown alone was {33} just carrying the thing too far; that one day — two days — of marriage, and a party could come in and claim irretrievable breakdown.

I’m wondering if there isn’t, in view of the feeling of the Family Law Section, some sentiment now to require a cumulation of two things: a short period of separation plus irretrievable breakdown.

My own thought with respect to this particular language would be to reduce the 180 days to 90 days, but require also proof of irretrievable breakdown. In other words, instead of the disjunctive, 180 days’ separation or irretrievable breakdown, which, as you have said, really means nothing, because they are disjunctive, and irretrievable breakdown, presumably, could be after two days or three days, without any opportunity at all for the parties to get over an emotional fight or to reconsider their problem.

If there is any support for that sentiment — I recall there was some at the time the Act was under final consideration — I would like to move as an amendment that this read, instead of 180 days, 90 days, but instead of the disjunctive “or” add the word “and” — 90 days’ separation and irretrievable breakdown.

If there is no support, I won’t urge it, but I know {34} I had the strong feeling at the time that irretrievable breakdown is two days, three days, and the young couple could have a fight, and wouldn’t even have time to exercise —

CHAIRMAN HAGAN: Commissioner Miller, are you making a motion, or are you seeking further support?

MR. MILLER [La.]: Well, I won’t want to make the motion unless there are at least a few here that seem to think the motion might have merit.

CHAIRMAN HAGAN: All right.

MR. MILLER [La.]: I won’t make it at this time. I’ll wait and see if someone speaks to the point.

MR. NEEDHAM [R.I.]: Mr. Chairman, I’d like to inquire as to what the status now is. As I understand from the amendment, the new subsection (a) (2) is going to read “the court finds that the marriage is irretrievably broken”, and then you go on.

Now, are we going to retain subsection (3) of the present 302?

MR. HELLRING [N.J.]: No, no. Let me explain that to you. Subsection (a) (2) will read as you have it on your sheets that were distributed, and the old subsection (a) (2) will become subsection (a) (3).

MR. NEEDHAM [R.I.]: I don’t understand what you are doing {35} now, sir.

MR. HELLRING [N.J.]: The old (a) (2) becomes (3).

MR. NEEDHAM [R.I.]: The old (a) (2) is going to be (3)?

MR. HELLRING [N.J.]: Right. And the old (a) (3) —

MR. NEEDHAM [R.I.]: Is now (a) (2)?

MR. HELLRING [N.J.]: It’s now as revised.

MR. NEEDHAM [R.I.]: May I also ask, sir, is there not, if we are going to retain Section 305 (a), a conflict in the amendment of (a) (2), the last section?

I recall that in 305 they say that a finding of irretrievable breakdown is a determination that there is no prospect of reconciliation, and in our new subsection (a) (2) you give an (a) and a (b), and then you add, “and that there is no reasonable prospect of reconciliation”, as an additional finding that the courts must find before they can take some action.

MR. HELLRING [N.J.]: Well, just look at the structure of the new proposed (a) (2). You still have in the first portion of it, before the subsections (a) and (b) — you still have the main event; namely, a finding of irretrievable breakdown.

MR. NEEDHAM [R.I.]: Yes.

MR. HELLRING [N.J.]: Now, (a) and (b) which follow merely are the evidential supports for the finding of irretrievable {36} breakdown.

MR. NEEDHAM [R.I.]: I understand that.

MR. HELLRING [N.J.]: And, therefore, the finding of irretrievable breakdown still constitutes — and I’m reading now from 305 — “a determination that there is no reasonable prospect of reconciliation”.

In making the finding under the (b) part of the new proposed (a) (2), the court has to find that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage, and that there is no reasonable prospect of reconciliation.

MR. NEEDHAM [R.I.]: Do you read the last few words as a limitation only on (b)?

MR. HELLRING [N.J.]: Yes. And if you think it would be better without the comma before it, we’ll be glad to take the comma out.

MR. NEEDHAM [R.I.]: All right, thank you.

MR. EASTHAM [Albuquerque, N.M.]: I think I am not satisfied with the explanation just given to Commissioner Needham.

305 allows the parties — in effect, without any evidence — to state that the marriage is irretrievably broken, and the court is required to find, if both parties sign the affidavit, that it has been. Yet now in the new 302 we’re {37} requiring that there be evidence. Under sub (2) (a) and (2) (b) there has to be evidence that there is a serious marital discord and that there is no reasonable prospect of reconciliation.

MR. HELLRING [N.J.]: Commissioner Eastham, I think if you will reread Section 305, you will see that in that heavily debated section we did not say that a court must find irretrievable breakdown. We said that if both parties swear that the marriage is irretrievably broken, or one of them says it and the other doesn’t deny it, that then the court after hearing shall make a finding. But then it goes on to say that it shall make a finding whether the marriage is irretrievably broken, not “that”. The word is “whether” and not “that”.

That was heavily debated here. It was one of the key issues before the house when the statute was originally adopted.

MR. EASTHAM [N.M.]: Okay. So what we have done now in 302 is to say what kind of evidence has to be presented at that hearing. Okay.

MR. HILLMAN [Providence, R.I.]: Based upon the prior discussion, I think, at best, we have some bad drafting by leaving in the present line 8. I don’t think it improves matters; and, indeed, it confuses matters, by having it here in addition to {38} being in 305. And I would strongly urge that it be taken out of here, on the basis that you already have it in a more appropriate place, and I think the argument could easily be made that you are setting up another precondition.

MR. HELLRING [N.J.]: Mr. Chairman, I would like to suggest that this is something which, as originally suggested by Commissioner Needham and now repeated by the last Commissioner who spoke — Commissioner Hillman — is very much worth the careful thought and consideration of the Committee. We really left it in, that phrase, because of the affection which this Conference and the Council of the Family Law Section have both always shown to the whole idea of reconciliation, and we felt that here was an opportunity to flag it once again.

It may be unnecessary, particularly in the light not only of the mention in 305, but in the light of the fact that the old Section 302 (a) (2), which is now going to be Section 302 (a) (3) also refers to conciliation provisions of Section 305, and follows right after it.

That’s why I think that last suggestion made by the two Commissioners from Rhode Island serves the careful thought and consideration of this Committee.

MR. BURDICK [N.D.]: Mr, Chairman, I too agree that the {39} last clause should be stricken in the light of 305. I think it’s confusing and 305 is where the real test should be.

Inasmuch as you have added a period of separation as a ground for a finding of irretrievable breakdown, I think you have a confusion here with the reasonable prospect of reconciliation under 305, unless you intend that last clause to apply to both, and I think you eliminate that confusion by deleting the clause on lines 8 and 9.

MR. MERRILL: The Committee is glad to accept the comment which has come, and we will consider it.

The one thing that stands in the way of our accepting it immediately is the thought that reconciliation has been so much a desired thing on the part of the Family Law Section that maybe this will help us with them. That’s our only reason for hesitating over accepting your suggestion, and we will consider it, and you will find the result of our consideration when we get the draft before you for final vote by the Conference.

CHAIRMAN HAGAN: I want to remind the Chairman of the Committee that I believe the amendments are up now for final adoption. Commissioner Joiner!

MR. JOINER [Mich.]: Well, I don’t think I’m quite satisfied with that answer, and I therefore move to strike the {40} comma at the end of line 7 and insert a period, and then strike all of line 8 and all of line 9.

CHAIRMAN HAGAN: All right, the motion, Commissioner, is to put a period at the end of line 7, after “marriage”, and strike 8 and 9; is that correct?

MR. JOINER [Mich.]: Right.

MR. MERRILL: You don’t want to strike the “and”, do you, Commissioner?

MR. JOINER [Mich.]: I am just about to inquire of Commissioner Joiner: You don’t really want to strike the word “and”?

MR. JOINER [Mich.]: No.

CHAIRMAN HAGAN: All right. The motion, then, is to put a comma after “and” in line 8 and strike the remainder of lines 8 and 9. I just picked another “and”.

MR. NEEDHAM [R.I.]: I think that does it too.

Are you going to put that to a vote, or has the Committee accepted it, or what?

MR. HELLRING [N.J.]: We’d rather have you vote.

CHAIRMAN HAGAN: All right, is there any comment on the motion at this time?

MR. LANGROCK [Vt.]: I’d like to ask the Committee a question. It seems to me that, from what we heard before, this {41} is the logical thing to do. It’s intellectually much better this way. I’m not worried about the intellectually pure Act in this case.

This is an Act which is needed to get passed. There are a lot of marriages in a lot of states which have bad laws. This would be an improvement.

I don’t think this is going to present any problem in the factual context of the courtroom. It seems this is almost like a sacred cow by the Family Law Section. We’re being blackmailed — we might as well admit it — but the value of having ourselves succumb to their lack of intellectual honesty in the matter is such that maybe we ought to go along with the way the Committee has it. [Laughter]

MR. ADAMS [Jacksonville, Fla.]: Mr. Chairman, my point doesn’t involve the matter of acceptance. The question I would like to ask is why this whole thing isn’t moved over to Section 305.

Section 305 is entitled “Irretrievable Breakdown”, and it seems to me it should be the section in which you define what irretrievable breakdown is, and this section ought to be just left alone.

CHAIRMAN HAGAN: Any comment from any member of the Committee? {42}

MR. CALLOW [Waukesha, Wisc.]: I would like to respond to that.

I believe Commissioner Langrock has put his finger on the exact situation. We have tried to come before you believing that the Act is probably a better Act for the amendments that we have brought to you today, and as they have been corrected; but I do believe that the sacred cow does exist in the minds of those who have been successful in opposing this Act, and we once upon a time reached an accord with the Family Law Section that would have gained for the Act their approval, had we placed in comment — in comment only — their alternative points of view. And that was not acceptable.

We now will be faced with another vote before the House of Delegates, and there may be sentiment here that we don’t care what the House of Delegates does, but I suggest that this language does not spoil the Act, and yet it does accommodate those who choose to believe that this must be in the Act before it could be acceptable to them, and notwithstanding the fact that I think it’s redundant, really, that it would be useful for us to maintain it as drafted.

But again, I would like to make one last comment, that we have no firm commitment with the Family Law Section. We certainly would not want to leave you with the impression that if you choose to leave it as it is, we have carte blanche {43} cooperation with the Family Law Section. We have moved in the direction to reconcile differences while still maintaining intellectual honesty in the Committee in offering this to the Conference.

So I make that statement to you for your evaluation in your vote.

MR. RUDOLPH [Lincoln, Nebr.]: I’d like to ask a question in relationship to it.

As I understand it now, you have got your 180 days. Now, can a court refuse to give a divorce after the 180 days when you make your reference to 305, since you are putting it in 302; but then the court shall make the finding after a hearing?

Now, as I understand it, you have two possibilities. One is that the court must give the divorce. The other is that he could actually say: Go to reconciliation. I don’t think that this is clear. I would tend to interpret it that the court must, but does the Committee have a view on that particular point, as to whether the court must give the divorce if they have separated for 180 days?

MR. MERRILL: Commissioner Rudolph, this was a matter that provoked great debate and change of mind and position not only before the Conference itself and Committee {44} of the Whole, but also within the drafting committee in the many sessions which we held during the gestation period of this Act.

Originally it was influenced by what we had understood to have been the position taken in California. We withdrew an Act which basically would have required, on the affidavit or sworn statement or failure to deny, under differing circumstances, that the marriage had been irretrievably broken — would have required the court automatically to have —

MR. RUDOLPH [Nebr.]: I understand that. I understand prior to that point.

MR. MERRILL: Now, during that process we gradually came to the conclusion — and as a matter of fact, if you will trace the California statute, it too passed through that period of change whereby in each case the matter of determination of irretrievable breakdown became an issue of fact to be determined by the trial court on the entire evidence, and it was not required to register simply the will of the parties. And that is our position.

MR. RUDOLPH [Nebr.]: Even with the 180 days?

MR. MERRILL: Right.

Mr. HELLRING [N.J.]: Well, I’d like to comment this way. I think the addition of this 180-day alternative takes it one {45} step closer to a “must”, because Section 302, which deals with when the court shall enter a decree of dissolution, says: “The court shall enter a decree of dissolution of marriage if”, and then the first section has to do with domicil and residence, and the second one is the proposed new one, which says: “If the court finds that the marriage is irretrievably broken, which finding shall be supported by evidence” — and if you just use (a), it leaves precious little room.

MR. RUDOLPH [Nebr.]: This would be my interpretation.

MR. HELLRING [N.J.]: Except if there is a dispute as to how many days have passed, or as to whether they really were separated all during that time, or lived in the same house, but two beds in the same room.

MR. RUDOLPH [Nebr.]: The other question I would have from that — that’s the way I would read it, and I take it that the 180 days was put in by the Family Law Section to make it tougher, and not easier, and whether this would meet their requirements — I like it better, because I think there ought to be some control on the judge’s discretion.

We have judges that sometimes decide that no marriages are — you know, they just don’t like divorces, and they—

MR. HELLRING [N.J.]: Commissioner Rudolph, I don’t want to {46} take a lot of time to explain the concepts of the Council of the Family Law Section. It isn’t the whole Family Law Section.

MR. RUDOLPH [Nebr.]: Just Mr. Foster. [Laughter]

MR. HELLRING [N.J.]: It’s just the Council, and the leadership of the Council, and they start out as if they were going to espouse, let’s say, the advice of Ben Miller, and they say: Irretrievable Breakdown — what does that mean? How can you have that without standards?

Now, if you give us a standard, and if the standard is living separate and apart for a year — and we have said 180 days — that’s a standard. We feel that we can touch it. We can taste it. Don’t you see?

And so this has been the way they have presented it all along, and this is the way they have argued it in legislatures, and so we are trying to give them that. And, actually, we think, having done it, that we have added something beneficial to the Act.

MR. RUDOLPH [Nebr.]: I agree with you.

MR. BURDICK [N.D.]: Mr. Chairman, I think the test of the reasonable prospect of reconciliation ought to remain. In Section 305 we have this test, that there is no reasonable prospect of reconciliation, and I can see no reason why it cannot apply to the separation (a) provision as well. And so, {47} therefore, I would suggest a substitute motion that line 8 be moved to line 3.

MR. JOINER [Mich.]: Could I speak to that?

CHAIRMAN HAGAN: Yes, Commissioner. It’s your motion.

MR. JOINER [Mich.]: Let me tell you what I have in mind here.

It seems to me, the way the draft is presented at the present time, we look a little bit silly, because we start off with section (1), which is the jurisdictional basis for the divorce, and then we require the finding of irretrievable breakdown on either one of these two sets of facts, ending up with a clause that says “and that there is no reasonable prospect of reconciliation”, and then the very next requirement in the statute is that the court finds that the reconciliation provisions of Section 305 either don’t apply or have been met.

So it isn’t just having surplusage in the statute in different parts, where you are flagging something. They are right next to each other, and if you take it out of (a), then you know in all cases for sure that they have to look to 305, as they are directed under subsection (3) to determine whether or not the conciliation provisions have been met. {48}

MR. HELLRING [N.J.]: Mr. Chairman, that’s precisely why I said on behalf of the Committee earlier that we thought your suggestion, originally made by Commissioners Needham and Hillman of Rhode Island, was very good, and that it deserved our very serious consideration.

On the other hand, we don’t oppose your doing it by a vote on the floor. We’re inclined to take it out now ourselves, but it probably would be just as well if you vote it out.

[Mr. Needham called for the question.]

CHAIRMAN HAGAN: The question has been called for. I’ll restate the motion. The motion is to put a comma after the word “marriage” in line 7, and strike line 8.

[The motion was put to a voice vote.]

CHAIRMAN HAGAN: The ayes have it.

MR. NEEDHAM [R.I.]: Mr. Chairman, I’d like to ask the Committee a question, as it relates to (a) (4), and specifically, sir, as it relates to the new language that we put in one of the prior sections — I think, 202 — where we added the section where the names of the children born prior to the marriage should be included in the marriage certificate — or in the marriage application, rather.

Now, in the comments and explanations that were {49} given in the blue book, reference was made to the section of the Act which deals with separation, that it would tie in with the separation section.

Now we have a new (a) (4) that talks about the support of any child of the marriage entitled to support. Does that new language refer to the children named in the application, who may not otherwise be legitimized?

CHAIRMAN HAGAN: It’s a question to the Committee, if you want to respond.

MR. HELLRING [N.J.]: Well, first of all, the language, Commissioner Needham, to which you refer is not new. That’s part of the old language. The new part of (a) (4) is only after the semicolon. Everything up to the semicolon is identical to what we had before. And this (a) (4) is designed to make sure that it’s clear in the statute that the court is aware of everything else that has to be done with respect to this marriage, in addition to granting the divorce.

MR. NEEDHAM [R.I.]: Then, forgetting the preamble and asking the direct question, would it be the Committee’s opinion that if we added the — I think — fifth requirement to the marriage application — that is, a child born of the parents prior to the application — that that child would be a child of the marriage, entitled to support, without the necessity of {50} fulfilling legitimizing statutes found elsewhere in a state’s statutes?

CHAIRMAN HAGAN: Judge Callow, do you want to rule on that?

MR. CALLOW [Wisc.]: Well, it was our intention to flag this to the judge, and it was our intention that the court would make inquiry as to the children of the marriage. And if he then has been made aware of that, which seems to be a part of the record by virtue of the application for the marriage license, though it probably would not be a part of the complaint, the person would have considered it at the time of the marriage, and if they were asked the question about the children of the marriage, they would then respond, saying that there was a child, identified as a child of the marriage at the time of the application, and it would therefore be entitled to support.

MR. HELLRING [N.J.]: I would think the answer to your question, Commissioner Needham, is yes. I think it would be a strange court that wouldn’t take the needs and requirements of this particular child in mind under the circumstances you suggested, merely because the child was born to these married people before they were married.

MR. NEEDHAM [R.I.]: I don’t wish to press the point, {51} Commissioner, but there are many times when people would put something on a marriage application — the child was born as an illegitimate child. They will put on the application that he is the father, and it may be that two years later the thing that makes it irretrievably broken is the fact that the child was not his. And, therefore, what effect do you give the putting of the name on the marriage certificate? Does that legitimize the child, or doesn’t it?

MR. HELLRING [N.J.]: I don’t think that legitimizes the child at all. I think it later comes out that it was a false statement; then it’s a matter of evidence for the court to determine what the truth is.

MR. DUNHAM [Ill.]: It seems to me that the new version of (a) (2) is a substantial departure from our original concept. As Commissioner Hellring pointed out, there are two lines of thought in the Commissioners, and more extensively in the Family Law Section. One is that we need some standards for irretrievable breakdown. That can be accomplished by doing much less than (a) (2) does, by saying that if there is 180 days’ separation, the marriage is irretrievably broken, or if there is marital discord, the marriage is irretrievably broken. But this does more than that.

This says: The only way you can show irretrievable {52} breakdown is by showing either a 180-day separation or serious marital discord, which now requires the parties, even in the consensual divorce, to make public all sorts of fictitious or other evidence of marital discord, when the basic thing they want is to get out of the arrangement.

CHAIRMAN HAGAN: Do you want to Committee to comment?

MR. DUNHAM [Ill.]: Yes, I want the Committee to comment.

MR. MERRILL: You do? Very well.

Let me first suggest that there are two different issues — or approaches, perhaps, I might phrase it — that come up always in question with this matter of whether you cling to the old adversary grounds of divorce approach or the matter of accepting something like irretrievable breakdown as a concept. One of them is that, as a practical matter, the court handling a lot of things, no matter what your standard is, on a basis of: Well, this is what they want, and they come in, and we’ll handle it in chambers — and that takes care of it.

Now, there isn’t any statute that can do away with that sort of approach.

The other is the question of what form of framing the issues will best eliminate the resort to these knock-down-and-drag-out {53} appearances, where there is some likelihood of that kind of a fight. Now, it is that which we have undertaken to make the basis for our statute. The question of whether you can get “quickie” divorces by agreement of the parties is probably not a matter that we can consider in our draft.

Now, that is, I think, the answer, really, to your suggestion, Commissioner.

MR. DUNHAM [Ill.]: It is your intention, therefore, to say that there is no other way in which you can show irretrievable breakdown, other than by showing either 180 days’ separation or serious marital discord?

MR. MERRILL: Yes, which was, in our point of view, that which was covered by the irretrievable breakdown concept in the first place. This is merely taking care of the Family Law Section’s feeling that there ought to be spelled out a guideline. And this, we think, does not depart from our original concept, but does meet their desire.

MR. DUNHAM [Ill.]: Spelling out the guideline — that can easily be done without doing this. You could say, for example — and I’m about to make a motion to that effect — that the court shall find that the marriage is irretrievably broken. Then you can say the court shall find it’s irretrievably broken if {54} there is evidence of separation or serious marital discord; but don’t go on to say that this is the only way it can be done.

MR. PACKEL [Penn.]: May I suggest a one-word change?

CHAIRMAN HAGAN: Excuse me, Commissioner. There are two others who have been waiting a long time.

MR. BURDICK [N.D.]: I’ll defer to Commissioner Dunham. This is a different point.

MR. DUNHAM [Ill.]: Let me make my motion.

MR. HELLRING [N.J.]: Before you do, Commissioner, how do you feel about the problem you raise if on line 2, after the comma, it were to read “which finding may be supported by evidence”, instead of “shall”?

MR. DUNHAM [Ill.]: Well, that’s kind of meaningless, isn’t it?

MR. HELLRING [N.J.]: Well, then, forget it.

MR. DUNHAM [Ill.]: I would do it this way. I would propose a motion that we put a period after “broken” in line 2, and either continue there or in another section — another subsection — a provision that says: “The marriage is irretrievably broken if there is evidence that the parties have lived apart for 180 days” — or whatever period of time you agree on — “or that there is serious marital discord”, as you have it, {55} and with no attempt to make those the only methods by which irretrievable breakdown is shown.

MR. MERRILL: I would be afraid, frankly, Commissioner Dunham, of that language, because to me it reads as though, if that evidence is there, that’s it. Is that what you intend?

MR. DUNHAM [Ill.]: It removes the judicial discretion entirely.

CHAIRMAN HAGAN: Have you made the motion?

MR. DUNHAM [Ill.]: I have made the motion, but if you are bothered about that, I will go back to the “may” proposal, which is easer, I think: “which finding may be supported by evidence that”. And I’ll make that as my motion now.

I move that line 2 be changed to read “irretrievably broken, which finding may be supported by evidence that”.

MR. MERRILL: I think I’m authorized to say that the Committee accepts.

CHAIRMAN HAGAN: The Committee has accepted the proposed motion.

MR. CALLOW [Wisc.]: I want to read it in the full context.

MR. MERRILL: Well, here is what the motion is at the present time on the floor. In line 2 the word “shall” is stricken, and substituted therefore is the word “may”. {56}

CHAIRMAN HAGAN: Any comment on the motion?

MR. MILLER [La.]: Mine’s on a different point.

CHAIRMAN HAGAN: Well, fine, then. I’ll defer you. Any comment on the motion.

MR. PACKEL [Penn.]: I’d like to make the point that I think we ought to go definitely on record on the issue of whether 180 days’ living apart is enough to give the divorce, and there shouldn’t be any discretion in the judge. I’m against this motion, because it puts it in the “may” category, and in speaking against this motion I point out that we would squarely have the issue if we just changed one word, and that one word would squarely present the issue as to whether or not there should be an absolute right to divorce if the parties have lived apart for the 180 days.

So in opposing the motion I point out that if in line 2, where it reads “which finding shall be supported by” — if we struck “supported” and put “satisfied”, we would then have squarely the issue as to whether there should be this absolute right to divorce if there has been 180 days’ separation.

So that’s why I am opposed to the present motion, because it leaves it in the discretion, whereas I think there should be an absolute right to divorce if the parties have {57} lived apart for 180 days.

MR. CALLOW [Wisc.]: Just speaking for the Committee, I think this puts it pretty well in focus. I think this puts it pretty well in focus. I think Commissioner Rudolph first brought this matter up, and we said to him that we moved substantially in the direction of making it quite reasonable to conclude that any reasonable judge would find — 180 days of separation would probably result in a finding that irretrievable breakdown had occurred.

Now, we felt that that was the fine line that left some judicial discretion, but very compelling direction to the court, and we then find that the Attorney General of Pennsylvania’s suggestion is almost complete, and Mr. Hellring said — he used a good phrase — “precious little difference”, or “precious little room”, was the way he left it — and I think that that perhaps is a precious little room that should be allowed for those who insist upon judicial discretion being maintained, and those who want to have rather specific direction. And it is for that reason that I would hope that we might maintain the language as it presently exists, in order to maintain that precious little difference.

MR. SPANN [Atlanta, Ga.]: I would comment only that in substituting the “may” one of the purposes of the efforts made by the Committee, they have said, was to come closer to the position {58} of the Family Law Section; that they are not recommending anything solely for that reason, but because they feel it has merit also.

The Family Law Section bill as now proposed — I don’t know how many people have seen it — has many differences between our act and what they now propose, but we are now talking about the most fundamental difference in philosophy between the two, as I have been given to understand it by Family Law people, and that is that irretrievable breakdown might be defined.

And when we say it shall be supported by evidence, we have defined it as either 180 days or irreconcilable conflict with reconciliation improbable. We have taken out that line also, which they use.

But if you put “may” in there, we have gone right back to saying these may be bases, but any other basis of irretrievable breakdown that the court wants to find exists in there; so you have not met their objection at all, because you haven’t put any guidelines in other than saying these two can be the basis, but anything else the court may decide is a basis for irretrievable breakdown may be considered, and you have made no real change in the Act as we had it before, so far as the Family Law Section is concerned. {59}

If you are going to say “may”, it’s quite obvious that these may be grounds. But if it’s only “may”, what about a separation for sixty days? The court may find that sufficient.

I don’t think, when you say “may”, you have really added anything to the Act as we had it before we began to discuss these amendments. I would therefore speak against the motion.

MR. DUNHAM [Ill.]: I’m impressed by the Commissioner from Pennsylvania’s argument. I’d like to amend my motion so that it reads, “which finding may be satisfied by” —

MR. CALLOW [Wisc.]: “. . . shall be satisfied”.

MR. DUNHAM [Ill.]: “. . . shall be satisfied by evidence that”. I’ll delete the “may” and go to the Commissioner from Pennsylvania’s language — “which finding shall be satisfied by evidence that”. I would read that to mean that it may be established by other evidence.

MR. MERRILL: Beg your pardon? I didn’t catch that last comment, Commissioner.

MR. DUNHAM [Ill.]: My interpretation, if we put the language in “which finding shall be satisfied by” — or “established by” — “any evidence that”, is that it means that if you have 180 days, you have without question proved irreconcilable {60} breakdown. It’s the same thing as a conclusive presumption, if you want to state it that way — which I wouldn’t — but it does not limit the parties from establishing irreconcilable breakdown by some other means.

CHAIRMAN HAGAN: I want to make sure I have got Commissioner Dunham’s motion right. You want to substitute for your previous motion striking “supported” and putting in “established”?

[Calls of “Satisfied! Satisfied!”]

CHAIRMAN HAGAN: Okay.

MR. DUNHAM [Ill.]: I’ll tell you what I’m trying to do, and I regard some of this as drafting style, which I don’t want to get into.

What I would like to say is, if we have these facts, either (a) or (b), we have satisfied irretrievable breakdown, but we have not prevented the court from using other evidence to satisfy irretrievably breakdown.

Commissioner Burdick said: Instead of “shall”, use the word “will” — “which finding will be satisfied by evidence that”.

CHAIRMAN HAGAN: Do you want that in your motion too?

MR. DUNHAM [Ill.]: Let’s use that, to make it as strong {61} as possible.

MR. KRONISH [Newark, N.J.]: Mr. Chairman, it’s a matter of style but I’m troubled by this problem. I think findings are supported, but findings are not satisfied. Requirements are satisfied.

It’s just a matter of style, and I’m sure the Committee can work it out.

MR. CALLOW [Wisc.]: Commissioner Dunham, did you wish to take away judicial discretion?

MR. DUNHAM [Ill.]: On the 180 days.

MR. CALLOW [Wisc.]: This Conference spent a great deal of time recognizing another sacred cow, and that was judicial discretion, and it was upon that premise that the Act fell into its original design, and is continued forward in this design.

MR. DUNHAM [Ill.]: As a matter of fact, I don’t think there is any judicial discretion today in most states that have a statutory definition of desertion.

MR. CALLOW [Wisc.]: I concede that there are those states, but I am ready to recognize that the Conference and the Family Law Section, notwithstanding desertion and voluntary separation, still believe that judicial discretion should be maintained, and I get back to the point of the precious little difference {62} which seems to be of importance to those who vote in the House of Delegates, as well as those who vote in the Family Law Section, and I urge that you stay with the language of the draft as it presently appears.

That is my personal position. I don’t know whether the Committee supports me.

MR. MERRILL: The Chairman supports you, Judge Callow.

MR. HELLRING [N.J.]: Well, so do I, largely, because we have had it said to us so many times that this little difference will also be very important in the legislatures when they come to look at this statute.

MR. WORLEY [Tenn.]: I support the position of the Committee as to retaining the language in the text, but I raise a Question, I think, worthy of consideration in connection with the motion.

It has to do with the effect of the language on the scope of review of appellate courts. I note that the Family Law version deliberately, I suppose, used the language “shall be established by”, which I construed to mean the preponderance of the evidence. I note that the Committee used the language “shall be supported by”, which I construed to mean would be irreversible on appeal, if supported by any evidence. {63}

And now we come to the language in the motion, “shall be satisfied by”, the meaning of which escapes me. I merely raise the question, because I think it is pertinent.

CHAIRMAN HAGAN: Any other comment on the motion?

MR. MILLIMET [Manchester, N.H.]: Mr. Chairman, it seems to me we made this decision a long time ago, and that we shouldn’t — if we support this motion, we are changing a fundamental precept that we adopted several years ago, and I am opposed to it.

MR. DUNHAM [Ill.]: Well, I would like to comment on that. That’s true, but the draft we have before us is going back on, in my opinion, the decision we made a number of years ago that there were not to be these kinds of specialized grounds, like 180 days and marital discord; that the phrase “irreconcilable breakdown” was enough to control the court.

Now, some people say: We need, for certainty purposes, some standards. And what I was trying to say by my motion is: Okay, we will do that. We will say if you have 180 days, or whatever time we agree on, you have got certainty. You have got reversible error if the court won’t grant it on those facts. But we do not prevent the court and the parties from offering other types of evidence of irreconcilable breakdown. {64}

CHAIRMAN HAGAN: Any further comment?

MR. EASTHAM [N.M.]: Mr. Chairman, I’m afraid we’re going in a very bad direction here. I think Commissioner Dunham should have left his motion the way it originally was, because I think that focuses a little better on the true issue.

I am quite opposed to the concept of mandating that decision by any sort of evidence. I would hope that the Conference would turn down this particular motion, and then maybe we could get to the “shall-may” motion, and focus on what I think should be the true issue.

I’m not going to propose a substitute motion, but I hope the Conference votes this down, and then we can make a “may-shall” motion, which I think really focuses on the issue.

CHAIRMAN HAGAN: All right, the question has been called for. The motion, again, is, in line 2, Section 302 (a) (2), to delete the words “shall be supported” and in lieu thereof place “will be satisfied”, so the clause will read: “The court finds that the marriage is irretrievably broken, which finding will be satisfied by evidence (a)” et cetera.

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

MR. EASTHAM [N.M.]: Mr. Chairman, I now move that the word “shall” in line 2 be changed to the word “may”. {65}

CHAIRMAN HAGAN: All right, the motion has been made. Any comment on the motion?

MR. DAVIS [Houston, Texas]: Mr. Chairman, my objection to substituting “may” is that the court might not even find 180 days is evidence. There is no obligation to make any kind of finding at all. Instead of giving the court discretion in certain instances, I think it gives an absolute discretion, and has no measure for the court to go by.

MR. EASTHAM [N.M.]: That’s the intention of the motion, to make it in the discretion of the court, which is where the Act has been all along and, in my opinion, where it should be.

CHAIRMAN HAGAN: Any further comments? [There were none.] Very well, the motion before the house, then, is, in line 2 of Section 302, to delete the word “shall” and in lieu thereof place the word “may”.

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

CHAIRMAN HAGAN: Very well, we have 302 as amended by the Joiner motion.

MR. EASTHAM [N.M.]: Mr. Chairman, are we on (a) (4) as well as (a) (2)?

CHAIRMAN HAGAN: Yes, that has been read.

MR. HELLRING [N.J.]: Before you comment, two written suggestions have been handed up to the Committee during the {66} course of the discussion, one by Commissioner Wade and one by Commissioner Burke of Wisconsin. The Committee likes both of them, and so we would like you to insert in the draft before you in (a) (4) the following.

On line 12, after the comma, after the words “the support of any child”, we want to take out the words “of the marriage” — a suggestion made by Commissioner Burke.

And then in line 14 after the semicolon and after the words “or provided”, we want to insert the word “for”.

Now, I thought I’d call these to your attention, Commissioner Eastham, before you commented, in case they had bearing on your comment.

MR. EASTHAM [N.M.]: That addition of the word “for” in line 14 may solve it. The only place I can find for an adjourned hearing in the statute — and I may have missed something — is in 305, which provides solely for an adjourned hearing for the granting of the divorce. You have now inserted a new concept here, as I understand it — which I agree with — to allow the granting of the divorce at an earlier hearing, and provide for an additional hearing at a later time for the property settlement.

MR. HELLRING [N.J.]: That was precisely the intention of it, and the word “for” does clarify it, and that’s why we {67} thought it was good.

MR. EASTHAM [N.M.]: I guess this does the job, although it’s a little ticklish. If the Committee feels it does the job, I’ll be satisfied with that.

MR. HELLRING [N.J.]: Well, if you have better language, don’t hesitate to hand it up to us.

MR. EASTHAM [N.M.]: Okay.

MR. MERRILL: May I suggest to Commissioner Eastham that the Act in another section provides that, as a general matter, the rules of procedure or the statutes of civil practice, and so on, govern proceedings under the Act, and practically every Act that I know of does permit the court to provide for adjourned hearings.

MR. EASTHAM [N.M.]: My concern has been that, because you used the adjourned hearing concept in 305, a court might say: That’s the only kind of adjourned hearing we can have. And, of course, that would prevent the bifurcation of the two issues — one, the granting of the divorce, and the other, the handling of the support and maintenance, and so forth.

CHAIRMAN HAGAN: All right, we will move on to Section 303, then.

MR. MERRILL: In Section 303 there is a change which simply follows upon the change which we had proposed in {68} Section 302, and that would simply provide, in sub (b) of that section — we do not change (a) at all —

(b) (3) that the jurisdictional requirements of Section 302 exist and that the marriage is irretrievably broken in that either (a) the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding or (b) that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage, and that there is no reasonable prospect of reconciliation.

And that simply tracks the language which we have.

MR. HELLRING [N.J.]: Mr. Chairman, it no longer tracks it exactly, because, by vote of the Conference, the last line was removed from 302, where it also was line 8. And so we have here, I think, the question of whether we want to track it exactly or whether we want to leave this clause in here, even though it was taken out of 302.

MR. MERRILL: I think that part of Commissioner Joiner’s argument in behalf of his shortening motion was that we had the reconciliation scattered through the other sections, and I think that Section 306 was part of it, was it not — or 303? (69}

MR. JOINER [Mich.]: Yes, sir. I have a question, Mr. Chairman. I’m trying to relate this to the Act that I have in my hand, and it doesn’t seem to relate.

What is Section 303? Do you have a different Act in front of you than I have?

MR. MERRILL: We have the 1971 version.

MR. JOINER [Mich.]: They passed out some versions here. The 1970 version, I guess, is what they passed out.

MR. MERRILL: Section 303 as it was in the original starts out in (b):

The verified petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth

— these various things, and what we come down to then in the clause which we are now considering is (b) (3), where we have “that the jurisdictional requirements of Section 302 exist and that the marriage is irretrievably broken in that”, and so on.

And we changed the language with respect to the data on which the parties separated, by virtue of the fact that (a) will take care of that by stating that they have lived separate and apart for this period.

MR. MILLER [La.]: I’m confused as to whether or {70} not the action here today eliminates any discretion on the part of the judge to find that, notwithstanding the existence of 180 days’ separation, and notwithstanding a finding that there does presently exist serious marital discord which adversely affects the attitude of one or the parties toward the marriage — I’m concerned that if we eliminate both in Section 302 and we now eliminate in Section 302 the language “and that there is no reasonable prospect of reconciliation”, I think we are taking away completely from the judge any discretion whatever to find that, notwithstanding these present, existing facts. There is still a reasonable prospect of reconciliation; because if you will look at 305 (c) in the printed Act, it says that a finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

Now, by eliminating the judicial requirement of “no reasonable prospect of reconciliation” — by eliminating that from 302 and eliminating it from 303, you have eliminated it completely.

MR. MERRILL: We have not eliminated it from 303. We have left that in.

MR. MILLER [La.]: Well, I thought there was a motion being made that was being discussed right now to eliminate it {71} from 303.

CHAIRMAN HAGAN: Commissioner, I think the reason for the motion in the previous section was duplicity, and not necessarily —

MR. MILLER [La.]: Well, I agree, as long as you leave it somewhere. But don’t take it out of both 302 and 303, because it is not in 305.

MR. MERRILL: In our judgment, Commissioner, it is still in 303.

MR. MILLIMET [N.H.]: Mr. Chairman, I can’t quite understand where we are here. Under 303 now, as I understand the so-called conforming change, we are requiring everybody who wants to seek a divorce to allege one of these two alternative grounds. Is that the situation?

CHAIRMAN HAGAN: I think it is.

MR. MILLIMET [N.H.]: Doesn’t that mean that these are the only possible grounds, then? I thought we had wanted to leave the judge with discretion to find that the marriage was irretrievably broken if he had some other basis for it. If you have to allege one of these two grounds, it seems to me that only under those two situations can a divorce be granted. I didn’t think that was our idea at all.

MR. MERRILL: Our view, Commissioner, is that all {72} this provision with respect to serious marital discord does is to spell out what, actually, we had originally in our irretrievable breakdown concept, without any changes. This is merely spelling it out and giving the Family Law Section the view that we have provided something that a court can lay hold on; that, basically, that is the same thing that we had in our original Act.

MR. MILLIMET [N.H.]: Well, I would think that the mind of man can conceive of an irretrievably broken marriage which doesn’t necessarily involve marital discord. Maybe my mind doesn’t conceive it, but I don’t see why we should paint ourselves into that corner.

CHAIRMAN HAGAN: Can we move on to 307?

MR. MERRILL: If there is no further motion or discussion of 303, we will move to 307, and this is, again, a very important section, as we see it, and it does represent a place where we are asking you to reconsider and to depart from a decision which, by close vote, was made by the Conference earlier; and that is with regard to the distribution of property.

Our original section, as you will recall, and as you will see by the draft before you, drew a line of distinction between two kinds of property: property that was termed marital property, and other property, which was defined. {73}

Some members of the Committee and some members of the Conference have preferred to have substantially what the Section of Family Law has put before us as a matter of policy, and what we are asking is that the Conference yield on that point and revert to that which was narrowly voted down before, and the result of that is that we get Section 307, which reads as follows:

Section 307 (a). In a proceeding for dissolution of marriage, or for legal separation, or in a proceeding for disposition of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably divide and apportion between the parties the property and assets belonging to either or both, however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making such division and apportionment the court shall consider the duration of the marriage, any prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and sources {74} of income, vocational skills, employability, estate, liabilities and needs of each of the parties, whether the division of property or apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income; and the court shall also consider the contribution or dissipation of each in the acquisition, preservation, deprecation or appreciation in value of the respective estates, as well as the contribution of a spouse as a homemaker or to the family unit.

(b) In any such proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any dependent child of the parties.

CHAIRMAN HAGAN: Comment?

MR. PACKEL [Penn.]: I assume it’s spelled out somewhere that this is a court that has personal jurisdiction over both spouses?

MR. MERRILL: Oh, yes.

MR. EASTHAM [N.M.]: I don’t like the retreat in either section (a) of section (b). {75}

In section (a), of course, the retreat means that property that was obtained before the marriage, even if the marriage is dissolved within six months — of course, that’s a factor to be considered, but I think most state legislatures are not going to let the court — let the divorce court — divide separate property that the spouses had going into the marriage, or that they obtained by bequest or devise during the marriage. The legislatures aren’t going to let the divorce court simply give the other spouse part of this separate property. I just don’t believe a legislature is going to do it, notwithstanding the Family Law Section.

I think the decision that this Conference made initially was correct. I think changing this is going to make it much more difficult to obtain passage of this Act.

And as far as (b) is concerned, again I don’t think the legislature is going to particularly want a divorce court to be able to take out of the possession of both the spouses control of some of their assets and put them into a separate fund for the children. It seems to me that the parents have the obligation to support. I don’t think it’s up to the divorce court to take a chunk out of the parents’ assets and put it into some sort of a trust fund, administered by someone other than the parents. Apparently the divorce court {76} would have that right. I don’t think the legislatures are going to buy that either.

So I think this whole Section 307 proposed change is a mistake. I don’t know how we get it on the floor. Let’s hear some more comments before any motions are made.

MR. HELLRING [N.J.]: Mr. Chairman, before the other comments, it might be appropriate to place before the Committee of the Whole the comment of the Family Law Section in its very strong position on this question. There is no other portion of the Uniform Marriage and Divorce Act as to which the Council of the Family Law Section feels as strongly as it does about this, with the exception of the 302 item we just discussed. They say — and I am quoting from their appeal:

We have steadfastly opposed the Uniform Marriage and Divorce Act provision for division of only so-called marital property, and we strongly support the principle of giving the court the power to make provision for and to protect children where necessary and otherwise to make equitable and just division between the spouses of their joint and separate estates, marital and otherwise, pursuant to the guidelines above set forth. Each case must depend on its own facts and not be subject to mere mathematical formula, we are here dealing with the equities, {77} necessities and lives of human beings.

Now, having quoted that from the Family Law Section, I should also point out that the existing Section 307 was the subject matter of a great deal of disagreement within the Special Committee from the beginning of its deliberations on this question, and the limitation of the power of the court to deal only with marital property was contained in Section 307 by a closely — very closely — divided vote in our own Special Committee, and largely as a result of the influence of the Reporters, and some other people, who were from marital — what’s the California phrase? — community property states.

There was a great deal of pressure on the Committee during that period from California and from those people who had experience with the California statute, and a number of the members of the Special Committee at the present time strongly favor the change that is here proposed — and, indeed, favor it wholly aside from the views of the Council of the Family Law Section — and although this change was, again, adopted by a divided vote of your Committee, this time the division was not as close, and this time the division went the other way, and I think you ought to be aware of that.

MR. MERRILL: May I also inquire of Commissioner Hellring, and also Commissioner Callow, whether in their {78} opinion the rejection of this change would adversely affect the possibility of any agreement with the Family Law Section?

MR. HELLRING [N.J.]: Well, I hate to emphasize that again, because of our general attitude about this whole question of accommodation with the Council of the Family Law Section. However, again we must be mindful of the comments of Commissioner Spann earlier, and the fact that there is before the House of Delegates at the present time for action at its meeting in Washington next week a whole different statute proposed — revised statute — containing many, many, many more changes than we are talking about here.

And there is no question that the answer to your — there is no doubt that the answer to your question, Mr. Chairman, must be that if this proposed change is not acceptable to the Conference, we might as well give up any possibility of getting their support.

MR. CALLOW [Wisc.]: I’d like to respond a little further, and just call to your attention — or emphasize to your attention — that in Section 307, line 13, we have “shall consider”, and then we set forth antenuptial agreements; that’s at line 14. And at line 21 we have “the court shall also consider the contribution or dissipation”, and that the contribution of a spouse as a homemaker is a consideration that the court {79} shall consider.

And I think that that, in some measure, identifies the fact that one may inherit a million dollars and divorce a short time later, and it’s fair to infer that the contribution by the spouse would be considered by the court as being very modest to such wealth of the parties.

MR. SULLIVAN [Boise, Id.]: I come from a community property state. Of course, we are in the minority in number in the states, but we have our sacred cows too. One of them is the basic difference between community and separate property. We like the distinction that’s made and the way it operates and we think it should be maintained.

Now, I don’t know the attitude of the non-community property states at the present time under the divorce statutes, whether in most states they lump all assets together and make a distribution — in other words, do they follow the principles and the theory of the proposed amendment of Section 307, or do they have some other distinctions? However, it appears to me from all of the comments that I have heard this morning that reaching an accord with the Family Law Section is really a futile hope, and I think that this provision here is so basic that if this causes the disruption with the Family Law Section, or assists in failing to reach an accord, so be it. {80}

To get this matter in focus, I would move that the proposed amendment as presented in Section 307 of this draft be disapproved, and that the present Section 307 in the 1970 draft be maintained.

MR. DAVIS [Tex.]: Mr. Chairman, I have a question to ask, and it may have a bearing on how I would vote on the motion. In reference to antenuptial agreements, I assume that this would give the right to disregard one. He would take it into consideration, but he would not have to follow it. Is that the current law?

MR. MERRILL: Speaking for myself, as having had considerable experience with the matter of judicial interpretation, I would say that you are correct, Commissioner Davis, except that all this will be subject, again, to the principles of appellate review of the decision below, and it might well be that under certain circumstances which we could not possibly detail as to what the evidence was concerning the circumstances surrounding the antenuptial agreement, and so on — in certain circumstances it might be an abuse of discretion for the court to honor that antenuptial agreement.

Does that answer your question?

MR. HELLRING [N.J.]: If I may add to that, Mr. Chairman, I think that the rule on that would be quite clear. An antenuptial {81} agreement is, of course, binding upon the parties. There’s no way for the court to tamper with that. There’s no way for us to legislate the right on the part of the court to tamper with it.

But the court has a right to take into consideration the terms of the antenuptial agreement in making its determination as to a just division of all other property that isn’t dealt with by the antenuptial agreement.

Now, that question that you have raised, Mr. Davis, I think, is essential to an understanding of what we are doing here on a much more fundamental basis than just dealing with antenuptial agreements. Even if we have the statute as it now exists, and the provision of Section 307 is limited to “marital property”, when the court makes a decision with respect to that, the court, of course, takes into consideration what the parties have which is premarital property, and tries in a backhanded way to accomplish the same division of the overall property anyhow.

And this new amendment to Section 307 is designed to give the court the opportunity to do openly and clearly and on the table, so to speak, what the courts are doing anyway, by weighting their judgments with respect to that portion of the property as to which they do have jurisdiction, taking {82} into consideration the rigid relationship of the parties as to any property over which they don’t have any jurisdiction.

Now, in answer to Commissioner Sullivan’s comments, you can’t give very much of a description of what the present rules are in non-community property states. This is a new subject in many states. States like New York and New Jersey and others come to this kind of a problem of making equitable division of property as a new proposition. They are just experimenting with it. And, therefore, I think we can’t make any generalities.

What the effect of this section as now proposed by our Committee, with or without reference to what the Council of the Family Law Section thinks — what it would do is to eliminate all [illegible] and put the issue squarely before the judge, to make an independent determination as to what’s best for the parties under all of the circumstances of the marriage, including the children. And that’s why the Committee hopes that the motion which has been made will not be carried.

Commissioner Callow called my attention to the fact that antenuptial divisions are against public policy in some states, but this provision wouldn’t enforce an individual antenuptial agreement, if they are invalid as a matter of public {83} policy.

MR. PACKEL [Penn.]: I think we’re dealing here with a very, very fundamental problem. Many years ago in Pennsylvania, in order to try to take advantage of the husband-wife tax situation, Pennsylvania passed a statute making it, in effect, a community property state, and that statute was held unconstitutional.

I think we are on serious constitutional grounds to give the court power to do as suggested here with respect to the private property of either one of the spouses. It’s true we spell out factors that are to be considered, but when you look at those factors, it’s every conceivable thing, and you are really giving carte blanche to a judge to decide what to do with the private property of either one of the spouses, and I venture the off-the-top-of-my-head opinion that this statute would be held unconstitutional in states like Pennsylvania.

MR. HELLRING [N.J.]: Commissioner Packel, I hope that there is no constitutional issue, but, remember, if there were, it would run afoul of that same problem if you only left it with respect to marital property under the present statute, because martial property under the present statute is considered marital property no matter whose name it’s in. {84}

And, therefore, if it’s all in the husband’s name, and has always been in the husband’s name, you are still giving the court the power to deal with it and to take it away from him and give all or part of it to the wife. And if you have got a constitutional question, I’m afraid you have got it there just as much.

MR. PACKEL [Penn.]: What you say turns on the meaning of “marital property”. Maybe Pennsylvania is peculiar. We have an estate by the entireties, as you have in several states, but otherwise that’s the only thing that would be considered marital property — property which is in the joint name of the two spouses — under Pennsylvania law.

MR. HELLRING [N.J.]: But under our present Section 307 of the Uniform Marriage and Divorce Act we have our own description of what is dealt with. It says:

For purposes of this Act, “marital property” means all property acquired by either spouse subsequent to the marriage except:

(1) property acquired by gift, bequest, devise, or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, {85} devise, or descent;

(3) property acquired by a spouse after a decree of legal separation;

(4) property excluded by valid agreement of the parties; and

(5) the increase in value of property acquired before the marriage.

All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (b).

So that if the constitutional question exists, it exists just as much with respect to our present Section 307 as it would with the proposal we have made.

MR. EASTHAM [N.M.]: Two questions: Can the Committee tell us how many states presently permit a divorce court to take property owned by the spouses going into the marriage and divide it differently — in a divorce court? That’s the {86} first question. Is there any precedent anywhere in the United States for this?

And the second question is: What is meant by “opportunity of each for future acquisition of capital assets and income”? Does this mean you look at probabilities of bequests that may be coming in the future — this type of thing? I don’t quite understand that phrase.

MR. MERRILL: Taking up the second part first while it’s fresher in our minds, to the Chairman, at least, that has reference to these matters of expectancies that one of the spouses may have by virtue or a will or a trust provision, and so on, which may vest at some time in the future in him but over which he has not at that time specific control.

Now, with respect to the first part of the question, the difficulty is that the jurisdictions have so many varying provisions and so much varying case law that I do not think I can answer that categorically. I can simply say that there are jurisdictions which do provide for considerable leeway in this matter of distribution.

MR. TORVINEN [Reno, Nev.]: I can’t speak for other community property states, but I would like to join with Commissioner Sullivan from Idaho in stating that 307 just wouldn’t have any ghost of a chance of being adopted in Nevada. Our community {87} property system follows more closely the preceding Section 307, and I think if we are going to make an Act that community property states can even consider, I think we have to draft an alternative Section 307 and recognize community property.

CHAIRMAN HAGAN: We have the same problem with the old 307, according to Commissioner Hellring, and it’s his contention that we have no community property with either 307.

MR. HELLRING [N.J.]: Well, further with respect to that, the question raised by the Commissioner from Nevada, the Committee very clearly recognizes the problem of the community property states in this area. Indeed, as I said earlier, it recognized it so much in the earlier go-round of this statute that the Committee yielded to the views of the community property states and swallowed it whole, even though the community property states are in the minority.

In making this proposal for a change, we don’t want to forget about the community property states, and a proposal has been discussed by the Committee which has now also been recommended to the Committee by Commissioner Wellman as a solution to this issue which would accommodate both. Commissioner Wellman points out that in the Probate Code the sort of issue which we are now discussing has been handled by brackets and by putting a bracketed option into the Act for {88} community property states, and he suggests that the old version of 307, the one that’s printed in the Uniform Marriage and Divorce Act booklet, be used and offered as a community property state option in brackets, and that the amendment we’re now offering be offered as the amendment for the common law states. That may be a solution to the problem.

I don’t want to try to evade Commissioner Eastham’s question about the experience of non-community property states in this matter. At the same time, I don’t want to go into it at inordinate length. There are a number of states which have this equitable distribution type of provision. I can tell you that the experience in New Jersey has been very considerable in the last two years. It does not in New Jersey have the limitations which our Act has, although, interestingly enough, some of our courts in New Jersey have used the Uniform Marriage and Divorce Act as a precedent for limiting the scope of the property over which the court has jurisdiction, or trying to limit it, and that issue is now before our Supreme Court in New Jersey.

But there is no difficulty that I have read about anywhere in giving courts this power. Indeed, in common law, without statute, many courts in many common law states have taken the power by awarding alimony and setting aside assets {89} for security for that alimony. Some courts have been straining to get to the position which I think the new proposed 307 is designed to put them in.

MR. HOLMAN [Seattle, Wash.]: Mr. Chairman, I come from a community property state — Washington — and it’s interesting that it seems to be different than the situation in Nevada or in Idaho, as expressed just recently.

In our State, which is community property and always has been, we have had a statute on our books for at least sixty years which does exactly what this proposed new language does. In other words, it clearly appears from our statute, and the courts have universally so held, that all the property of both spouses is before the court for division.

Now, we tried to pass this Uniform Marriage and Divorce Act in our Legislature. Commissioner Hellring came out to Seattle a few months back to help us, and the big stumbling block that we found, interestingly enough, was 307. Our Legislature liked that statute. They did not like the 307 in the Uniform Marriage and Divorce Act, so they junked it and passed their own no-fault divorce. So we have just the opposite problem there that Commissioner Sullivan relates in Idaho.

In my opinion, it would certainly help us in {90} Washington if we could make this change, and therefore I am going to hope that the motion will be defeated.

MR. HELLRING [N.J.]: How would you feel about the option of brackets for community property states?

MR. HOLMAN [Wash.]: We would like the option to keep the thing in Washington as we have always known it and lawyers are used to it.

MR. HELLRING [N.J.]: Mr. Chairman, the Committee is unanimous — those of us who are here — on the proposal of having the proposed amendment be adopted as part of the Uniform Marriage and Divorce Act, to be followed by a bracketed section containing the material in old Section 307. Or we can put both in brackets. I think it ought to be both in brackets, and it certainly can be done that way.

CHAIRMAN HAGAN: Does this offer of the Committee have an effect on your motion, Mr. Sullivan?

MR. SULLIVAN [Id.]: Yes, Mr. Chairman. If the Committee has agreed that they will offer an alternative for the community property states along the lines of presently existing 307, then I would withdraw my motion. However, I would like to make one suggestion to the Committee.

If it’s going to be offered as an alternative, perhaps the format followed in the Uniform Probate Code, which {91} has various alternatives throughout for the benefit of community property states — we do not need all of that language set out in presently existing 307. I think that was designed for the non-community property states, because they have no such distinctions between separate and community property.

If there is going to be an alternative offered, which I understand is now assured, it could be easily handled by just a few lines — I haven’t tried to draft it — merely to the effect that the court in making a division shall deal with the community property of the spouses only, and leave it to each of the community property states to define the distinctions between separate and community property, without getting into all these definitions.

MR. HELLRING [N.J.]: In other words, you think we could use the first part of old 307, the (a) part, and probably leave out all or most of the (b) part, which contains the definitions. We certainly will look into that, and if it works out that way and makes sense that way, we will certainly do it.

MR. MERRILL: May the Chairman comment, with all deference to his colleague, Bernie Hellring, that that sort of proposal is probably going to complicate the redrafting of this matter in order to get it on your desks for an adoption {92} vote by states, and also there may be some of the non-community property states that may desire to conform to the present 307, and therefore it occurs to the Chairman that it would be appropriate simply to provide the alternative drafts in brackets, in accordance with the form that we have adopted elsewhere.

MR. JOINER [Mich.]: I would urge very strongly that you do just exactly that, that you put brackets around both sections without comment as to which state should choose which one. I think, with that, perhaps we can go forward and get the Act ready — move out of the Committee of the Whole, can’t we? — and move on to some other business.

MR. MERRILL: I think that’s correct.

MR. SULLIVAN [Id.]: Just one short comment in answer to Commissioner Hellring’s suggestion.

I think, as far as the community property states, if we used the language of the old 307 down to sub (b), that would satisfy it, with the exception that where you talk about marital property, you use the word “community” and where you say “each spouse’s property” it would be “each spouse’s separate property”, just to conform to the nomenclature that’s in common use in those states.

MR. BUGGE [Milwaukee, Wisc.]: Point of information, Mr. Chairman. {93} The proposed new, or alternate, 307 of the Family Law Section, I take it, is a proposal for replacing the entire old 307, is that correct?

MR. MERRILL: Yes, that is their proposal.

MR. BUGGE [Wisc.]: If that is correct, I just call to your attention that the term “marital property” is defined in old 307 and used in 308, and some corrective change would have to be made in 308, since the distinction would be eliminated if the new 307 were adopted by a particular state.

MR. CALLOW [Wisc.]: Yes. We plan to accommodate the other sections with those changes, Commissioner Bugge.

I would also call to your attention that the Committee has accepted a suggestion that in Section 307 at line 8 we strike the language “divide and”; and to be consistent, at line 12 we would strike the language “such division and”, and in line 18 “division of property or”, and use the word “apportion”.

And that is done because some believe that “divide” could be interpreted as dividing equally, and “apportion” eliminates any suggestion to that effect. And so we intend to use “apportion” rather than “divide”.

MR. McKUSICK [Portland, Maine]: A slightly different suggestion, and a question, perhaps. I would read the sentence starting at {94} line 12 as making these considerations exclusive. I would think one other consideration that might be listed is which spouse has custody of children — of dependent children.

There is an implication from subsection (b) that the only way of taking that consideration into account is by setting up a separate trust fund for the children.

I would think another thing that might well be taken into account by the court is the fact that the mother is going to have the custody of the children and the expense of the children, and that ought to be a factor to take into account in deciding how much of the husband’s property is going to be set aside for the wife.

MR. MERRILL: Commissioner, we also think that that is one of the elements that is involved in the phrase “shall . . . finally equitably apportion” the assets; and this, we think is also involved in that.

MR. HELLRING [N.J.]: We certainly will take your suggestion into consideration, though.

MR. McKUSICK [Maine]: I’m troubled about the specificity of (b). The implication is that it’s not included in needs or equitable apportionment between the parties.

MR. CALLOW [Wisc.]: I think the Committee will certainly consider that suggestion and relate it to the custody provisions. {95}

And also, it has been suggested that on line 22, which would be the back side of the proposed Amendments, that after the word “each” the word “party” be inserted, to be more definitive. And that will be accepted by the Committee.

MR. NEEDHAM [R.I.]: Just one question in regard to the trust provisions that you have in subsection (b). Is it the intent of the Committee to give the court the authority to provide for the education of a child beyond the time when it would have jurisdiction to provide for its custody?

By that I mean, in my State we have divested our Family Court of most of its jurisdiction by providing that an eighteen-year old is a full adult, and our Family Court provides for the support, maintenance and education of children to their eighteenth birthday, in the absence of an agreement between the parties for education beyond the eighteenth birthday.

Now, it would seem that, reading this in its broadest terms, the court would have authority to say that this is a doctor’s son, and the best interest and general welfare of the child, considering its aptitude, and so forth, is that the child shall have a baccalaureate degree, and therefore set up a trust fund which will provide the means for the child, who is twelve, thirteen, fourteen years of age, for {96} attaining its baccalaureate degree.

Is that the intent of the language?

CHAIRMAN HAGAN: I think Commissioner Needham’s question, basically, is this. Does anything in the Act extend the support obligation over the age of majority? Is that your question?

MR. EASTHAM [N.M.]: Mr. Chairman, Section 316 does that already.

MR. MERRILL: Yes. That part is not concerned here at all.

MR. NEEDHAM [R.I.]: So that there are other provisions of the Act that do extend it beyond the age of majority?

MR. HELLRING [N.J.]: We give the court that discretion as to all dependent children, whether they are above or below the age of majority.

MR. NEEDHAM [R.I.]: Dependency being determined when? When the divorce is granted, or when the additional support is needed?

MR. HELLRING [N.J.]: Both times, I would suppose.

MR. MILLIMET [N.H.]: Along that same line, I’m troubled by the presumption that’s created in 316 (c). This eighteen-year-old provision has been adopted in our State and, I assume, many states, and now it provides that if they don’t do {97} something about that, support will be terminated by emancipation of the child. And I assume that an eighteen-year-old is emancipated — and he is for most purposes, at least under out statute — and therefore, if you don’t have a provision, it would terminate.

I don’t know whether we want that, now. This change in making children adults at eighteen has a drastic effect on this situation.

MR. MERRILL: With regard to Commissioner Millimet’s comment, I think that this is one of the places where, as is so common in the Conference, we have to wait and see what problems arise from this new change in the law. This is not something which the Committee has considered to be any part of the recommendations which we are making now, and probably we ought to see what conditions arise.

MR. NEEDHAM [R.I.]: The age of majority for all jurisdictions back in 1971, almost universally, was twenty-one years of age, and the problems of education and the obligations of parents were continued in all divorce courts, until they were twenty-one years of age, as a dependent child, and it does raise some very substantial problems concerning if you are going to give in subsection (b) the power to the court to place funds in trust to provide for an education, and you now {98} have a child — an adult, no longer dependent; I mean, he is a full adult — his father can turn him out without any liability in my jurisdiction at eighteen years of age — and it would seem to me you do have some problems which may not have been the same as we discussed two years ago, or three years ago, when we discussed this, and I daresay that perhaps some of the Family Court people did consider the problems of education and an educational trust fund as it related to that period of time between eighteen and twenty-one. However, I have my doubts.

MR. MERRILL: One other comment for you before I make a motion, and that is that in line 17 in the draft that is before you, at the end of the line, we are going to insert another pair of words, “custodial provisions”, so that this will take care of some problems which have been raised by Commissioners with respect to what happens when you deal with somebody who has custody, which has greater obligations by virtue of that.

MR. CALLOW [Wisc.]: I would like to respond to the Commissioner from Rhode Island that the problem, Commissioner Needham, about the eighteen, nineteen and up to twenty-one-year-old child caused us to deliberate at some length over the incompetent or handicapped child who might be dependent, {99} whom you might be obliged to support forever, and that seems to be contrary to the philosophy of most of the states, that the parents are not obliged to support those who are handicapped over the age of majority.

I can’t give you an answer as to how I feel about this directly, nor do I believe that the Committee has reached a firm conclusion on it, Commissioner Needham, and I just respond to you that we are not dealing with that situation where the youngster should be able to go to college, and even those eighteen and still in high school are not being supported by dad, although most states require both dad and mom to contribute equally to a minor child; but when you get to the dependent, you get all flavors of dependency.

So that would be my personal response to your situation, and I can’t give you an answer, and I know many states are considering dealing with the problem, but I don’t know that they have reached any conclusion as to how they are going to deal with the problem.

MR. NEEDHAM [R.I.]: I see. In my jurisdiction we use the words “dependent child” or “dependent person”, but we use that in relation to our Juvenile Act, and we use “minor child” or “children” in our domestic relations side of the Act. And with a dependent child the jurisdiction of the {100} juvenile court ends at eighteen as well, so we have the age of majority coming right back.

MR. McKUSICK [Maine]: I misunderstood Commissioner Callow, perhaps. The Uniform Civil Liability for Support Act — and Maine is one of the half-dozen states that adopted that Act — I believe it provides an obligation of parents to an adult but disabled, incompetent child. I just throw that in.

I don’t think it is true that parents don’t have obligations — certainly, in the State of Maine — and I believe under the Uniform Civil Liability for Support Act there is a requirement for supporting competent children.

MR. HELLRING [N.J.]: And because of that and the fact that other states that common law recognize the obligation of support up until the time of that indeterminate word “emancipation”, the Committee decided originally to, if you will, hide behind the word “emancipation”, and talk about providing for children to the time of emancipation; but the court has the discretion to look at that at the time of the divorce, when the child is, maybe, twelve, and take into consideration all the factors, and also take a look at it at a later date, if it gets another chance.

But I think that’s all we can say. {101}

MR. EASTHAM [N.M.]: Before Commissioner Merrill makes his motion, I want to know — I submitted a drafting change in Section 302 on that adjourned hearing question. Does that have to be brought up on the floor, or can the Committee just make that without it being brought up on the floor?

MR. HELLRING [N.J.]: We accepted your suggestion that’s in 302 (a) (4), at line —

MR. EASTHAM [N.M.]: 14

MR. HELLRING [N.J.]: Just a second. 302 (a), line 14 — I mentioned that earlier. In line 14 we added the word “for” after the word “provided”. And then, in place of the words “an adjourned” we adopted Commissioner Eastham’s suggestion of the words “a separate, later”; so it would read, “provided for a separate, later hearing to complete these matters”.

MR. OETTINGER [Chapel Hill, N.C.]: Mr. Chairman, is it in order, prior to the motion, to go back for just a moment to Section 202 (5) for a question.

CHAIRMAN HAGAN: What aspect do you want to bring up?

MR. OETTINGER [N.C.]: I’m concerned that that provision is a two-edged sword, and I would like to know if there was division on the Committee, and what is conceived to be the advantage of requiring in an application for a marriage license {102} the name and date of birth of the child. I can see some disadvantages that were not discussed.

CHAIRMAN HAGAN: I think the matter has been pretty well discussed, but if any member of the Committee wishes to comment —

MR. MERRILL: I frankly do not have anything to add to what we said earlier; namely, that this is a warning light. It is certainly not a conclusive determination which will bind the parties in the later divorce situation, if that is what your question is directed to.

MR. OETTINGER [N.C.]: May I make a comment to indicate my concern?

The one thing that a child born out of wedlock does not need is premarital publicity. Many states, including my own, have statutes to protect the names of those children. As I read this, this would require a listing as a public record of the name of such a child, with no guarantee of legitimacy. Am I correct in that, sir?

MR. MERRILL: The phrase is “of whom both parties are parents”. Now, I take it that that does not raise the question of legitimacy at all.

MR. OETTINGER [N.C.]: Right, but the danger of publicity, both to the parties and the child, is, as I indicated, raised {103} by this section, is it not? It was not a consideration before the Committee, was it?

MR. CALLOW [Wisc.]: The Committee did not consider that it raised that danger. We considered at some length, as I recall our meeting in October, that the listing could be a public record, and therefore could conceivably be somewhat embarrassing; and yet we also recognized that that information would be available to the child at a later time, if he chose to inquire as to whether mother and dad were married, and then look at his own birth certificate. We felt that the concern that he might have would be about his age, as opposed to the date of the marriage.

We also felt that we were serving the child’s best interests by having the parents acknowledge that they were, in fact, his parents at that point, and that his interest was better served by the acknowledgment than his privacy rights by not acknowledging; and that choice was made quite deliberately.

MR. OETTINGER [N.C.]: I can see your balance of the equities, and both sides of them, and I will not make a motion, but I do have great concern over this still. Thank you, sir.

MR. NEEDHAM [R.I.]: So do I.

MR. MERRILL: Very well. I think we have now {104} reached a stage where I should move that the Committee of the Whole rise, report that it has had under consideration the proposed Amendments to the Uniform Marriage and Divorce Act, has considered them section by section, line by line, has made certain changes and amendments, and recommends that the Amendments, as so amended, be approved and presented to the Conference for a vote by the states for final adoption.

CHAIRMAN HAGAN: You have heard the motion.

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

* * * * * * * * *

From the

Handbook of the National Conference of Commissioners

on Uniform State Laws and

Proceedings of the Annual Conference

Kanapali, Maui Hawaii

1974

Page 61

Division F, Don J. McClenahan, Chairman.

Special Committee on Uniform Marriage and Divorce Act, Maurice H. Merrill, Chairman.

This act was amended at Hyannis to meet the primary objections of the Family Law Section of the American Bar Association. Informal consultations with members of the Section indicated that the amendments did remove its opposition to approval of the act. Subsequently, President Read was informed that a “sub-committee,” unspecified as to membership or source of power to act, has determined to oppose approval of the act unless it was amended again to the form proposed by the Family Law Section in 1970. This would mean a revocation of the basic principle of irretrievable breakdown as a ground for dissolution of a marriage and would make living apart for a substantial period a determinative factor in the dissolution of a marriage. The committee opposes this suggestion. Efforts will continue to win approval of the act as amended at Hyannis.

There continue to be adoptions and introductions of the act, though often with some modification. The inclusion of irretrievable breakdown in the new legislation indicates adoption by the majority of the states of this concept. The committee will continue to function as a standby and counselling group in the oversight of the act.

Page 179

Special Committee on Uniform Marriage and Divorce Act, Maurice H. Merrill, Chairman.

This act was approved by the American Bar Association at its meeting in February, 1974. The committee will continue on standby status.

From the

Handbook of the National Conference of Commissioners

on Uniform State Laws and

Proceedings of the Annual Conference

Quebec City, Canada

1975

Page 100

It was voted to discharge the following committees: The Special Committee on Uniform Consumer Sales Practices Act; the Special Committee on Uniform Abortion Act; the Special Committee on Uniform Marriage and Divorce Act; and the Special Committee on Model Public Defender Act. It was agreed that the Special Committee on Uniform Parentage Act be continued for the purpose of considering amendments to the Act to provide for inclusion of the concept of implantation.