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«By: Michelle Yaeger Advisor: Professor Musheno Spring 2013 Legal Studies Honors Thesis Yaeger 2 Acknowledgements Thank you to my parents who have ...»

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Why is it so Hard to get a Divorce?

Examining the Relationship Between California’s

No-Fault-Divorce Laws

and Low-Income Women

By: Michelle Yaeger

Advisor: Professor Musheno

Spring 2013

Legal Studies Honors Thesis

Yaeger 2


Thank you to my parents who have instilled a lifelong love of learning in me from the beginning.

Thank you to Professor Perry for giving me some valuable insights about sources to research. I

am forever indebted to the cooperation and assistance from the staff and volunteers at the Van Nuys Self-Help Legal Access Center and the San Fernando Self-Help Legal Access Center.

Special regards to Robbie Stovitz, Ana Maria Garcia, Lourdes Nunoz, Sara Shiekh, and Ruth Zacarias. This thesis would not be what it is today if you all hadn’t been so helpful. A million thanks cannot express my gratitude to you all, especially Ruth. I also must express my appreciation for Debra Schoenberg who, despite her busy schedule, took the time to meet and talk with me. And of course, I could never have come close to completing this thesis without the guidance of my advisor Professor Musheno. Working with you helped me fall in love with the world of academia. Here’s hoping this thesis is my first step into a longer journey of academic research.

Yaeger 3 Table of Contents I. Abstract: Page 4 II. Introduction: Page 5 III. Origins of California’s Divorce Reform: Page 7 IV. Interpreting the History: Page 9 V. Survey and Interview Methodology: Page 11 VI. Survey and Interview Results: Page 14 a. Mediation—More Positives than Negatives: Page 14 b. Absent Net Relationship Effects from the Divorce Process: Page 15 c. Limited Priority on Priority: Page 20 d. Financial Burdens from Divorce: Page 21 e. Favoring Transparency for Origins of Divorce: Page 22 f. Changes to Marriage: Page 25 VII. A Snapshot of Low-Income Versus Affluent: Page 26 VIII. Study Limitations: Page 29 IX. Conclusion and Synthesis: Page 30 X. Future Research: Page 34 XI. Works Cited: Page 36 XII. Survey Copy: Page 39 Yaeger 4 Abstract In 1969, the California Family Law Act was passed, which made California the first no- fault divorce state. Previously, divorce could be granted only if one party was found guilty of adultery, excessive malice, desertion, neglect, constant inebriation, or a felony conviction. Under the new law, marriage could be dissolved simply based on irreconcilable differences.

Fast forward several decades and one can find many low-income women receiving assistance from volunteers and legal aid attorneys at Self Help Legal Access Centers (SHLACs) throughout California, seeking divorces in this no-fault state. These women, unable to afford attorneys, struggle to move their divorce along. The process of getting a divorce is long (it takes a minimum of six months from the date of separation for divorce to be finalized in California) and complex. It is not rare for a litigant to visit a center multiple times over the course of months or even years before she can file her completed divorce paperwork. Other low-income women simply give up on obtaining a divorce at all and remain in unsatisfactory marriages.

My thesis examines how low-income women experience the divorce process under the California Family Law Act and explores what divorce means to them as a result of their engagement in this process. I will explore the historical context surrounding the passage of the California Family Law Act and explore observed trends among low-income women going through a divorce in order to see if no-fault divorce law plays a role. Next, I report my findings from surveying and interviewing low-income women who are at different stages in their divorce, along with divorce attorneys who work with both low-income litigants and more affluent clients.

The data acquired from these surveys and interviews will allow a glimpse into how these women perceive the law and how they feel the law is impacting them.

–  –  –

Lawrence Friedman called California a “pioneer state” for becoming the first no-fault divorce state. When one examines the previous divorce system, with its adversarial nature, “farcical proceedings” and “courtroom charade[s]” (Reppy 1307) the passage of the California Family Law Act was revolutionary as it mitigated the previous antagonistic quality of divorce by removing guilt or blame from divorce proceedings. Other states followed California’s example;

less than fifteen years after the California Family Law Act was passed in California, no-fault divorce was manifested in one way or another in all states, except for South Dakota and New York (Friedman 664).

A plethora of studies examining the effects of no-fault divorce, particularly its effects on women, have been published since 1969. Older scholarship pointed to certain negative results for women from no-fault divorce. For instance, one study from cited women’s living standards falling in California by 73% (McLindon 352) and feminist academic Lenore Weitzman has written extensively, arguing that no-fault divorce has resulted in a lower fraction of community property provided to women (178).

While these studies provide valuable insight into examining the broader effects of nofault divorce law, more recent research examines what no-fault divorce law means for the present low-income woman. There are several reasons why it is important to examine the relationship between no-fault divorce laws and low-income women. First, several studies illustrate that there may be a close relationship between poverty and divorce. A study conducted in 2010 shows that couples that receive government assistance such as Medicaid and food stamps are more likely to divorce (Schramm and Harris 437) and similarly, a 2012 study indicates that low-income couples have higher rates of divorce (Trail and Karney 413). Second, it is worth

–  –  –

the present economic climate. Studies indicate that there is a negative relationship between divorce rates and economic growth because many people simply cannot afford to get a divorce (Vendatam). And while divorce rates during the recession have decreased, the quality of marital life, already under strain for low-income individuals, deteriorates during a time of economic decline (Vendatam).

This all hint at the complexities surrounding divorce laws. Yet California’s move to becoming a no-fault divorce state was a reform, presumably for the benefit of women. However, the aforementioned studies suggest that effects of no-fault divorce laws for low-income women are not the same as their higher-income counterparts. There seems to be a trend that divorce has a more harmful effect for low-income women. Is this disparity simply because of income? Or does the no-fault divorce law itself play a role? This segues into the questions that my thesis answers.

1) What were the reasons behind reforming California’s divorce laws in the 1960s?

2) Do the intentions of the legislative members spearheading the reform movement resonate with contemporary low-income women?

3) How do California’s current divorce laws affect low-income women seeking divorce and how does this compare with higher-income women who are also seeking a

–  –  –

4) How do these women perceive the no-fault divorce law?

5) What if any distinctions do litigants make between substantive and procedural

–  –  –

My thesis explores both the substantive and procedural elements redound on low-income women from the current divorce laws. With regards to question five, I identify the procedural

–  –  –

that of divorce law such as the various forms that require completion such as financial disclosures and the mandatory hearings and mediation meetings that are required for some couples. Substantively, I refer more to the philosophical and moral foundations of divorce law— for instance why divorce law is no-fault. The substantive element will become clearer from the history of the motives of making California into a no-fault divorce state. I intended to keep these two elements in mind as I set out to explore my third and fourth questions.

The first question was proposed in order to allow a background and exposition for exploring the more contemporary phenomenon of divorce law and low-income litigants, and the second question prompted me to compare the present effects of divorce law with the history of how and why the law is manifested in its current state.

Origins of the California Divorce Law Reform:

When evaluating the law as it presently stands, historical context for the how the law in question originated is a valuable asset. Thus, in order to explore the effects of current California divorce laws on low-income women, it is necessary to evaluate the origins of the legal divorce reforms that took place in the 1960s. Evaluating the original intentions behind the establishment of present divorce laws can demonstrate what were the primary concerns behind certain California politicians pushing to reform divorce law.

When Republican governor Ronald Reagan signed the Family Law Act of 1969, he not only made California the first no-fault divorce state in the United States, he also set a precedent for other states’ transition into becoming no-fault divorce states as well (Hershkowitz and Lieber 130). This transformation was not an overnight process, nor did it arise independently from the cultural and political environment in the postwar United States. By providing a historical context for evaluating the political and cultural forces that drove California’s transition to a no-fault

–  –  –

Putting Asunder by Roderick Phillips contextualize the social and political environment that fostered California’s divorce reform.

Within Krom’s narrative about the various committee and legislative meetings held and the various reports composed that lead up to the passage of the Family Law Act of 1969, he explains that California’s push for reform was reacting to the shortcomings of the original instituted laws. He argues that the earlier fault-divorce law, by forcing blame on one or both parties, was both antiquated by the 1960s, and also a catalyst for “cruel and unworkable” results, (Krom 156). Krom’s assertion makes an implicit assumption that the accusatory nature of the original divorce laws was responsible for the negative effects of divorce being observed at the time the discussion of divorce reform was taking place. Some of these negative effects include stigma and animosity (157) along with “antisocial behavior, welfare costs and moral decay” (160).

Krom suggests that the movement to a no-fault divorce law was responding to the assumption that the central problem perceived within California’s original divorce laws was that it was condemnatory and impeded cooperation by fostering a environment of animosity. The prescribed remedy, which Krom applauds, was to remove the fault aspect of divorce and instead grant a divorce, not based on which party was wrong, but rather “if the legitimate objects of matrimony had been destroyed and there was no reasonable likelihood that the marriage could be saved,” (167).

Phillips highlights the social climate surrounding California’s divorce reform in the 1960s. As he explains, “More liberal attitudes toward authority and institutions were reflected in family law reform as well, and in no part of it was this more true than in terms of divorce law,”

–  –  –

reality of the 1960s and that change was necessary (563). But more than just keeping up with the increasingly liberal environment that characterized the 1960s, a move to reform divorce laws occurred under the initiative of California governor Edmond Brown because Brown was concerned about the increasing divorce rate: “divorce erodes the very foundation of our society,” (567). Thus, it appears that another impetus for changing California divorce laws was the goal of decreasing the divorce rates.

In fact, the motivation of reducing divorce is clearly supported within an introduction in the summary of a report presented by the Governor Brown’s established Commission on the Family: “…the law must be designed to promote family stability, by preventing divorce where it is not warranted, and reducing its harmful effects where it is necessary,” (Dinkelspiel and Gough 72). With this criteria established early in the summary, it is not surprising the rest of the summary demonstrates an emphasis on promoting cooperation and conciliation between parties.

For instance, the summary calls to establish a separate Family Court in order “to minimize the conflict and rancor between parties...and to…focus it’s real inquiry upon the real problems of the marriage” (Dinkelspiel and Gough 74). Moreover, the summary also establishes guidelines and steps regarding counseling and mediation after a “petition of inquiry” is filed (Dinkelspiel and Gough 7) in order to determine whether the marriage can be salvaged.

Interpreting The History:

There are several points to take notice of within Philipps and Krom’s historical expositions regarding California’s path towards the Family Law Act of 1969’s signing. First is the intent behind reform. Both Krom and Phillips illustrate that the law reflecting the social norms of the 1960s was a consideration. Both also illustrate that the new divorce laws were

–  –  –

Within these observations, one can see that there is attention given to social relationships.

Mainly, we see within Krom’s article that by removing the “fault” in divorce, legislative members hoped to decrease the ill feeling between parties engaged in a divorce procedure. The animosity between these parties was a primary consideration in evaluating how to update the law. Likewise, Governor Brown argued that part of the detriments of divorce was its corroding effects on society.

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