BY. Dr. WALTER D. JOHNSON Associate professor of economics and legislative studies, he heads the Family Studies Committee of the Illinois Legislative Studies Center at Sangamon State University. This article is excerpted from "Divorce, Alimony, Support and Custody: A Survey of Judges' Attitudes in One State," Family Law Reporter, Bureau of National Affairs, Inc., Washington, D.C., November 4. 1976. The full study is also available from SSU's Legislative Studies Center.

What the judges think about No-fault divorce

GROUNDS FOR DIVORCE are specified in state statutes. Reasons for marriage are not. To obtain a divorce in Illinois, the wife or husband must accuse the other in court on one of the grounds. Even if the husband and wife have mutually agreed to the divorce, one must be found at fault in front of the judge.

No-fault divorce is a concept that eliminates the need to legally establish that either spouse is in the wrong. California adopted the principle in 1969, and about half of the other states have followed suite. Several of the remaining states, including Illinois, have considered passing the same legislation. No bills have passed the General Assembly, but a majority of judges throughout the state, who are primarily concerned with divorce cases, favor the adoption of no-fault in Illinois, according to a survey.

The recognition of grounds other than adultery by New York in 1967 continued the trend liberalizing state divorce laws. Mental cruelty was added to the existing list of grounds for divorce in Illinois in 1967, a step which eliminated the necessity of those seeking divorce, and their lawyers, to provide concrete evidence of transgressions such as adultery or physical brutality. In 1973, the clause requiring witnesses to

Even if husband and wife have mutually agreed upon divorce, one must be found at fault. The no-fault concept eliminates the need to find one partner in the wrong. About half the states have adopted such laws; bills have been considered, but not enacted, in Illinois

marital offenses was dropped in favor of a single corroborative testimony, a step which further eased adversary pressures of the divorce procedure. Following the pattern established in other states, the next logical step in revising Illinois divorce law would be the adoption of the no-fault concept. Indeed, a variety of bills has been introduced in the General Assembly in the past five years relating to no-fault. Considerable controversy, however, has surrounded these proposals, and none has passed. Legislative discussion has centered around the lack of protection no-fault gives to women or to the individual not wanting the divorce, the need to protect children, the fear of further increasing the number of divorces by making it easier, and finally the potential for increased financial burdens on the state.

As the branch of government charged with carrying out state laws on divorce, the Illinois judiciary will be directly affected by any changes in these statutes. The debates and actions of the General Assembly on no-fault divorce are obviously of deep concern to the state's judiciary. Throughout the past five years of discussion relating to changing Illinois divorce law, however, no concerted effort has been made to find out what the judges think about the whole issue.

In an attempt to remedy this situation, Sangamon State University's Legislative Studies Center undertook a survey of the state's judiciary this spring. A questionnaire concerning the no-fault concept was sent to 143 Illinois judges, all of whom were identified as being responsible for hearing divorce cases based on assignment records of the chief judge's office of each of the 20 judicial circuits in Illinois. For the Chicago circuit a list of those judges assigned to the chancery division (which handles divorce) was used. Completed questionnaires were returned by 102 judges.

When asked about the adoption of no-fault in Illinois, 69 per cent of the judges favored this move. Only 23 per cent were opposed to its adoption in Illinois. Eight per cent were undecided. Like the legislature, the judiciary was divided on what form no-fault should take. In recent years the issue of whether to replace the existing grounds for divorce with no-fault or add no-fault as an alternative while keeping the present fault grounds has become a crux in the legislative debate over no-fault. The judicial viewpoint provides no real assistance in resolving this dilemma. Of judges favoring no-fault, 37 percent advocated replacement, 41 per cent preferred the additive concept and 6 per cent wanted it restricted to cases where children were not involved. The remaining 16 per cent were undecided as to what form the law should take. As was the case in the General Assembly, judges voting for the addition of no- fault generally argued for the preservation of existing grounds as a protective measure for a spouse who did not want the divorce, They felt that having to

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"judges voting for the addition of no-fault generally argued for the preservation of existing grounds as a protective measure for a spouse who did not want the divorce'

prove cause would deter the other party from acting too hastily and help to maintain the bargaining power of the person not wanting the divorce. Those favoring a single ground pointed to the almost exclusive use of mental cruelty in their jurisdictions, noting that the "addition of no-fault 'grounds, ' really abolishes and makes senseless any grounds."

Most common grounds
Anticipating the mental cruelty argument by those who favored replacing all other grounds with no-fault, the judges were asked what percentage of divorce cases claimed mental cruelty as the basis for the action. Nearly three quarters (72 per cent) of the judges estimated that at least 90 per cent of the divorce proceedings they heard utilized mental cruelty as grounds. Almost half placed it at 95 per cent or above. Only three justices outside of the Chicago circuit cited figures lower than 75 per cent. Chicago was unique in that approximately the same number of divorce cases are heard on the grounds of desertion as on mental cruelty. Although comparable figures were not available from the other circuits, areas with heavy urban populations usually reported less use of mental cruelty.

In contemplating the move to no-fault, a number of judges noted that the real issue is how to balance off the need for easing the trauma of divorce while still protecting the rights of the individual and the integrity of the family unit. The question for them then becomes, will no-fault offer a remedy for this problem? The answer is not easily arrived at.

As one judge said: "The lawyer practitioner does not want no-fault because he fears litigants can avoid his services. That of course depends upon how the legislation is written. On the other hand he doesn't want the court to have too much say about whether the non-faulting party can get a divorce or as to what the terms of the divorce shall be. I say they cannot have it both ways.

"In my view, figuratively, if two persons to a marriage contract wish to cancel that contract, they have no dependents, and no property or debt entanglements that need the artful hand of a practitioner to avoid further litigation, they ought to be able to go to a counter, sign a book and cancel the contract.

"Now those cases would be a small percentage of the divorce cases through my court. I certainly do not want litigants to be able to secure the laundry process of the court, putting the responsibility solely on the court as to their property rights and the rights of their children without at least one advocate, representing one of them. " Considerable attention has been given in the General Assembly to a compromise position based on a waiting period to be required between filing for a divorce and the scheduling of the hearing. Those arguing that no-fault should replace other grounds generally state that the inclusion of a mandatory waiting period will give the parties time to contemplate the wisdom of their action and provide a protective buffer for the party who does not want the divorce. While offering the waiting period as a compromise, proponents of replacement would like the time period to be minimal. On the other hand, those who would like to merely add no-fault, advocate an extended waiting period which would make no-fault less attractive.

The compromise issues
When polled concerning the establishment of a waiting period, given the adoption of no-fault, 30 per cent of the judges felt it was unnecessary. Of those who favored a waiting period, 22 per cent felt one month was sufficient; 24 per cent voted for two months; 18 per cent set it at three months and 6 per cent at four months. A current legislative proposal of a six-month waiting period was chosen by only 21 per cent of the respondents. The remaining 9 per cent opted for periods between six months and a year.

A second compromise issue revolves around the establishment of a reconciliation service for individuals who file for a divorce. Again, those who favor replacement see this as a protective measure for the spouse not wanting the divorce. When asked if they would favor the establishment of a reconciliation service, 65 percent of the judges replied that they would. In choosing between a mandatory or a voluntary service, 63 per cent of those favoring counseling felt it should be voluntary, although several judges qualified their responses by adding that if one of the parties were to request the service, it should be mandatory for the other to attend. Approximately half the judges who voted against a reconciliation service also added that if one were instituted, it should be on a voluntary basis. Several stated they would favor the institution of such a service but not in the courts. Others cited the lack of funds in their jurisdiction

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as the motivation for their negative response.

The real issues in almost any divorce center on finances and/ or children involved. By removing the necessity of proving fault, many believe that the bargaining position of the parties, especially the female, will be weakened. It is argued that retaining the fault concept is crucial for protecting both sides. When asked if they felt the adoption of no-fault would affect settlements and/or their judicial decisions, almost half (48 per cent) of the judges surveyed responded negatively. An additional 8 per cent felt it would have only a slight effect, and only in unusual cases. Some justices (6 per cent) were not sure what the effect would be and took a "wait and see" approach to the question. Interestingly, the 38 per cent that answered "yes" to the question were almost equally split between those that felt the adoption of no-fault would have a positive effect on negotiations and those that thought it would create additional problems. Those in the first group generally felt that no-fault would help remove some of the sting from the divorce process by reducing its adversary nature. As one judge put it, "Divorces will be better conducted and emphasized and will help the parties and the children by allowing their energies to be used in the proper areas." In the final analysis, less than 20 per cent (half the yes responses) of the judges felt the adoption of no-fault would have an adverse effect on the negotiations or the settlements.

For better or worse
In summary, the judiciary, like the legislature, basically favors the idea of adopting the no-fault principle of divorce in Illinois but is divided as to what form this change should take. There also tends to be agreement on the institution of a reconciliation service, with the judiciary favoring a voluntary program. Compared to their counterparts, however, Illinois judges prefer a shorter waiting period in obtaining a divorce. The judiciary also tends to discount the potentiality of problems arising in regard to the marital settlement agreements. It is their view that the adoption of no-fault may in fact help allay some of these problems by removing the basis of much of the bitterness which now arises out of an accusatory process. 

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