Starry Decisis: The Ex Files

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Cynics of the world will not be surprised to find out that divorce became a whole lot easier thanks to a Los Angeles case. Citizens of this city of exes have a bad rap for treating marriage like, well, a bad wrap – chucking it easily into the nearest trash can. Yet, the legal decision that makes divorce doable evinces nothing but the highest respect for institution of marriage. It’s a case worth revisiting, especially before the new season of Desperate Housewives begins.

The early 1950s brought attention to the power of American judges. Brown v. Board showed the country just how much courts could do to bring society belatedly into the 20th century, one schoolchild at a time. Out West, our own California Supreme Court was working a legal revolution of its own, led by the pioneering work of Judge Roger Traynor. Supreme Court decisions affect all Americans in highly visible ways. Yet it’s Traynor’s decisions on the California Supreme Court that are more likely to affect our day-to-day lives since they involve state law. Among the most important issues left for states to decide is how, when and why to allow divorce.

The divorce before the court, 1952’s De Burgh v. De Burgh, like many divorces, was an ugly one. Daisy De Burgh wanted to split from her husband Alfred, a drunk who beat her, bragged about his affairs, and refused to give her money even as he spent it recklessly himself. Alfred asserted a defense that Daisy had treated him just as badly: she wrote a letter to his business partner stating that Alfred was gay. This, he argued, was an attempt to ruin his business life. Daisy’s bad acts, Alfred claimed, negated her suit for divorce. The trial judge, in the Los Angeles Superior Court, agreed that the marriage was beyond repair but held that neither Daisy nor Alfred was entitled to a divorce.

If this seems absurd, know that Judge Traynor agreed. Divorce, for hundreds of years, was governed by a system of "fault" - or, blame. Wifey had to accuse hubby of wrongdoing - say, cruelty, adultery - in order to obtain a divorce. Hubby, however, could defend himself by arguing that wifey had provoked his bad acts. This defense, recrimination, was at issue in De Burgh. Both Daisy and Alfred argued that each acted meanly because provoked by the other.

The fault system serves to make it very, very difficult to divorce. It sought to force couples to recognize, hopefully before rushing the altar, that marriage matters not just to them, and their family, but to society as a whole. The recrimination defense, as part of that system, sought to make spouses equally invested in being good partners. The problem with this set-up is that it fails to recognize the reality of marriage. As Traynor explained, it would be totally unrealistic to assume that only one spouse was wholly guilty, and the other wholly innocent. The failure of marriages was a social problem, not easily reduced to "technical marital fault."

The recrimination defense, too, was an absurdity:

[A] strict recrimination rule fails in its purpose of denying relief to the guilty... The spouse who more desperately seeks an end to a hopeless union is penalized by the ability of the other spouse to prevent a divorce through the assertion of a recriminatory defense, and the more unscrupulous partner may obtain substantial financial concessions as the price of remaining silent.

Traynor also suggested that the fault system unfairly tilted the playing field toward men, who usually managed the marriage's community property and could exert more power over their wives.

As a state law judge, Traynor didn't have the power to destroy the defense - only the legislature could do that. Instead, he gave more power to judges to take into consideration whether "society" was actually still interested in keeping the marriage together. Traynor outlined four factors for the trial judge to consider - the possibility of reconciliation, the effect of the conflict on the husband, wife and third parties, and the comparative guilt of the spouses. The formerly mechanical application of the defense would now be at the discretion of the judge. The court could now call 'em as it saw 'em - it didn't have to keep bad marriages together.

The DeBurgh decision paved the way for the "divorce revolution" in the United States, beginning in California. Here, in 1970, the state legislature essentially codified Traynor's decision in the Family Law Act, which created the no-fault divorce system in California. Certainly, no-fault divorce has its detractors, who blame it for rising divorce rates and the societal ills that follow from them (click here for a defense of the system). Traynor, however, stood for the principle that "a marriage in name only is not a marriage in any real sense." If there's a blame game to be played, he seemed to say, let it happen in the living room, and not the courtroom.