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BOB POTTER: Today, Minnesota Public Radio presents the second in a series of broadcasts on legal problems and the role of the courts in a changing society. Funds for this series are provided by grants from the Nash Foundation and the Minnesota Bar Foundation. Today's broadcast is on divorce law in Minnesota, how it's changed in recent years, and how it works. While this program does not pretend to be a complete explanation of any particular legal issue, we hope that it will help make understandable some important principles and procedures of family law.

[FELIX MENDELSSOHN, "WEDDING MARCH"]

SPEAKER: Hear ye. Hear ye. This family court of the state of Minnesota is now in session. On today's docket are the cases of Smith versus Smith, Brown versus Brown, Jones versus Jones.

SPEAKER: They had very deep religious hang ups about till death do us part.

SPEAKER: But he was gone so much and he was always gone. And it was a way of life the nights he was gone to ballgames, or playing cards, or doing these things.

SPEAKER: My defenses were still relatively naive. I was still able to project all my problems onto my spouse.

SPEAKER: My dad used to drink a lot. And he came home-- come home late and they used to fight a lot about it.

SPEAKER: Half of the returning Vietnam vets were divorced within six months. I know when I got back, I was a basket case emotionally.

BOB POTTER: Divorce, simultaneously horrible and wonderful, frightening and liberating, and increasingly common. There were almost 1.1 million divorces in the United States last year. For every 100 couples tying the knot today, 35 or 40 will be divorced. That's 14 times the divorce rate of a century ago.

Those unsuccessful marriages will last about seven years on the average. The divorce rate in the Upper Midwest is lower than in most of the rest of the country, but it is still much higher than in most foreign countries. Most divorces involve children. In 1974, over 1 million children had parents who were divorced that year.

SPEAKER: The oversimplification of a whole ton of problems on both sides was that-- the immediate thing was that Chuck wanted his office girl more than he wanted me.

SPEAKER: We weren't matched. Jimmy came into the scene too soon before we were ready. We got pushed into marriage. I pushed too because I wanted my name for my son.

SPEAKER: Why? Because I left, because I walked out. I was raising one baby and I decided I didn't want to raise another baby.

And at that point, I was only 20 years old and I could barely take care of myself. And the thought of dealing with something like this for the rest of my life was just overwhelming. So I just packed up and headed for the airport.

SPEAKER: I don't see why they don't talk to us about this and how we feel about it.

BOB POTTER: One study indicated that divorced people are more likely to report physical disability, chronic illness, neurosis, depression, and isolation. But another study showed that after initial intense pain, most divorcees had become more assertive, independent, and confident, and less tense. But perhaps even that initial pain is lessening as religious and community mores change and as laws become more liberal.

From time immemorial, governments have one way or another been a party to marriage relationships. If you're married, you're not simply in a dual relation with your spouse. You're in a triple relation with you, your spouse, and the state involved.

The state defines rights and responsibilities of your union and reserves the power to declare or deny its existence. And if you're divorced, you know that it's a whole lot more complicated to untie the knot than it was to tie it. Sue Short is an attorney who has handled a large number of marriage dissolutions.

SUE SHORT: First, the client walks in the door and then I discuss with them the basic areas that we alluded to before, the grounds for the dissolution. What happened to this marriage? Why is it that this marriage has not worked? Then the children, things with regard to their custody, their care, any special needs they may have. Then the property, find out what the property is, what they think it's worth approximately, and what their feelings are as to who should get what and how much, and so forth.

Alimony, I find out whether there are strong feelings about alimony, whether the person believes alimony should be granted to him or her and why. Then we usually get down to the-- debts, I forgot debts. How could I forget debts? That's another big area.

BOB POTTER: Divorce can indeed be a legal quagmire. From the time of Hammurabi, there's been a fluid movement of legal solutions to the problems of personal relationships. That movement has been no less fluid here in the United States where it has ranged between the Puritan and the permissive.

10 years ago, people who could afford it flocked to Nevada or Mexico to legally separate. Two centuries ago, they went to Pennsylvania. At various times, even Sioux Falls, South Dakota and Fargo, North Dakota have been divorced capitals of the country.

Just as prohibition didn't stop drinking, tough divorce laws haven't prevented people from separating. So in the last seven years, most states, including Minnesota, have changed their laws to reflect the changes of modern life. As Hennepin County Family court judge Susanne Sedgwick points out, that change was partly because recent response to arcane divorce laws had often been shameless perjury in courtroom testimony.

SUSANNE SEDGWICK: People either would have to rig up the grounds, or perjure themselves, or they would have to go out of state to get really what they wanted in the first place, which was a simple resolution of their marital difficulties. Really not too many years ago, even in Hennepin County, we required two witnesses. As a practical matter, most people, when they're having their marital difficulties, don't do it out in the backyard for the neighbors to see. So many times, I'm sure the witnesses were rehearsed.

BOB POTTER: That requirement for two witnesses, which Judge Sedgwick mentioned, arose from the legal perspective that one of the two parties was somehow at fault in the breakdown of the marriage. That one person was in the wrong and the other was innocent. So the courts required testimony to ascertain that fault in much the same way as in a criminal matter.

The law had neat categories of marital or extramarital activity, which if proven would suffice to legally end the union. But those neat legal categories did not reflect the human reality that sometimes people simply don't get along. And since the law did not reflect reality, people simply lied in the courtroom to get what they wanted.

In 1974, the Minnesota Legislature rewrote Minnesota Statutes Chapter 518. It was called the no-fault divorce act. The law's most important change was to add irretrievable breakdown of the marriage relationship to available grounds for divorce.

The terms plaintiff and defendant were eliminated in the 1974 act. The new terms are now petitioner and respondent. The word divorce was eliminated and the new term is marital dissolution. In this program, we'll use both terms interchangeably.

Although the 1974 law did make divorce much easier in Minnesota, often, it is still difficult both legally and emotionally. After a couple decides to get a divorce, usually one party will seek the advice of an attorney who will outline some of the considerations, which Sue short mentioned a few moments ago. Then what usually happens is the lawyer makes up a summons and a petition. The summons is to formally let the person's spouse know what's going on. The petition is to the court seeking the dissolution of the marriage.

At this point, negotiations and arrangements between the parties both in and out of court begin in earnest if they haven't begun much earlier. Oftentimes, circumstances will warrant the husband and wife appearing at a temporary hearing. This hearing usually occurs within a couple of weeks of the filing of the original petition and is designed to deal with urgent matters of immediate importance. As Attorney Sue Short points out, this often happens when children are involved.

SUE SHORT: What happens to the temporary hearing is that those issues are settled, which cannot wait for a further-- a lengthy determination. Who has what's called temporary custody, custody during the pendency of the proceeding, what the temporary visitation rights are to be. If there are debts, which are a problem, you would have a person ordered to assume immediate responsibility for payment of the debts so the creditors wouldn't get nervous about the non-payment of bills, for example.

You can get an order for temporary exclusive occupancy of the homestead. That sometimes is a subject of controversy, especially when custody is also in controversy. Because as I said before, the person who gets custody usually is the person who gets occupancy of the homestead. The court can also grant at that point a temporary award of alimony for the support of one or the other during the pendency of the proceeding.

BOB POTTER: In the larger counties, such as Hennepin and Ramsey, the courts have referees who handle all these initial hearings. Referees fulfill all the same functions as judges except a judge must sign any final order and may hear appeals from referees' decisions. Hennepin and Ramsey counties have special family courts, which handle most divorce cases. However, new legislation abolishes both referees and family courts in July of 1978.

Susanne Sedgwick is the only Hennepin County family court judge. She signs all referees' orders and hears all child custody disputes herself. Only if there is a contest over property division between a couple who have no children will a dissolution matter be handled in the regular district court calendar. In most other counties in Minnesota, these matters are taken up by the regular district judges in turn with all sorts of other legal matters. Judge Sedgwick points out that sometimes these temporary hearings are the most important functions of the court.

SUSANNE SEDGWICK: The hearings are almost all on affidavits, in other words, the statements that are filled out both as to income and generally as to the parties' situation and on file with the court. Those are the affidavits and the statements that are read by the referee and used to make the determination as to the initial matters. The people appear at the temporary hearing, but there is not testimony taken. The testimony is really taken by affidavit.

BOB POTTER: Sue Short explains the next step in this process.

SUE SHORT: You try to reach an agreement, which is called a stipulation, between the parties as to what is going to go into the judgment and decree of dissolution. That would cover things like custody, visitation, and child support, alimony, property division, debts, insurance, all of the various issues.

BOB POTTER: It occasionally takes a long time to agree upon a stipulation because people may have lengthy disagreements over, for example, how their property should be divided. In that case, there may be extended negotiations between the husband and wife, negotiations which often take place through their lawyers rather than face to face.

SPEAKER: Naturally, that was one of the things that I wanted was the house. We tried to get it so that we would give him like $3,000 because I figured that that was about all that he had really put in if that much. And he wouldn't go for that. And this was through his lawyer and my lawyer. I didn't have anything to do with it.

And then we ended up with six, which is the lien that he has on the house right now. And that was in our final stipulation that he would get that if and when I sell the house. But I'm not forced to sell it, which is a very good thing. I mean, that was the one thing that I was afraid of was that a judge might say, which I know they have in many cases, that the wife has to sell the house at the time of the youngest child's graduation from high school. Then they can divide the property.

I'm making out a will. And this is part of the stipulation of the divorce that I make out a will that the house will go to my children, and divided equally, and that he will get his $6,000 at the time of my death. And then if I remarry-- this was the one thing that he wanted if I remarry, that I would have to sell the house and then he would get his $6,000 lien. So that's the way it is. And that was the stipulation for the divorce and he signed it.

BOB POTTER: We'll discuss in a few moments what happens when the husband and wife cannot agree on a full stipulation. But as in this case, when both parties are finally able to agree on property division, the process smooths out a bit and moves toward what's called a default hearing. The stipulation is typed up in its final form acceptable to both people and is signed by both. It is filed with the court sometimes with a few supplemental documents and the court sets a date for the hearing.

Then there is a waiting period. For example, in Hennepin County, there's a mandatory 90-day waiting period between the filing and the hearing itself. Only one person shows up at the hearing, the petitioner, the one who's formally requested the dissolution. That person is usually accompanied by a lawyer. The referee and a clerk are generally the only other people in the courtroom.

SPEAKER: It was very easy. And I just thought it went so smoothly and it was really a good experience for me. And my lawyer was-- he was really so kind. He wrote the questions so that all I'd have to give was yes or no answers. And it was just as easy as could--

SPEAKER: You promise to tell the truth, the whole truth, and nothing but the truth in the proceeding before this court?

MARY ELLEN SMITH: Yes, I do.

SPEAKER: Is your true and correct name Mary Ellen Smith?

MARY ELLEN SMITH: Yes, it is.

SPEAKER: Were you and the respondent duly married on September 11, 1973 in Minneapolis, Minnesota?

MARY ELLEN SMITH: Yes, we were.

SPEAKER: And ever since that time, have you been and are you now husband and wife?

MARY ELLEN SMITH: Yes.

SPEAKER: Is the true and correct--

BOB POTTER: What happens physically is very simple, the petitioner takes the witness stand and the lawyer asks a series of leading questions, which usually require just a simple yes or no answer.

SPEAKER: Has there been an irretrievable breakdown of the marriage relationship?

MARY ELLEN SMITH: Yes, there has.

SPEAKER: Did extreme and hostile disagreements over money and financial matters cause recurrent frustration and serious marital discord?

MARY ELLEN SMITH: Yes.

SPEAKER: Did this discord cause you loss of weight, sleeplessness, nervousness, and did it make you extremely irritable?

MARY ELLEN SMITH: Yes, it did.

BOB POTTER: In this somewhat mechanical fashion, the lawyer and petitioner outline why the marriage has broken down and why it should be dissolved by the court. This is the time too when name changes take place. Name changes are written into the stipulation and become a part of the final court order along with the more mundane items such as who gets the car, or the refrigerator, or the good sofa.

SPEAKER: --the Northwestern National Bank in the amount of $2,000.

MARY ELLEN SMITH: Yes, I do.

SPEAKER: Do you and the respondent own a Sears refrigerator now in respondent's possession?

MARY ELLEN SMITH: Yes.

SPEAKER: Have you and respondent satisfactorily divided all other items of personal property, household goods, and furniture which you own?

MARY ELLEN SMITH: Yes.

SUE SHORT: After the testimony has been concluded, the referee or the judge will probably have some questions, which he or she wants to ask. Very often, they will break in during the grounds part of it and ask whether, for example, they have had marriage counseling, how that worked out, and that sort of a thing. Then they may be curious about matters which they did not think were covered fully in the attorney's presentation.

Then they will eventually say the findings are approved, the dissolution is granted, name change is granted. And then if it's a referee, the referee then signs a statement on the findings of fact, which are the documents, which the attorney presents to the court and which constitute the official court statement of what happened at that hearing. Now, the dissolution is not final however until the judgment and decree is recorded in the judgment docket by the clerk of court.

SPEAKER: And the judge was very nice. He said he agreed with the stipulation. He thought it was fair, and equitable, and that he would grant the divorce. And that was all there was to it. And it was so easy that I guess I was surprised.

BOB POTTER: Sometimes though it's not so easy. For one reason or another, the husband and wife may end up fighting it out in the courts. People still face unpleasant courtroom scenes if there's a dispute over custody or visitation rights with children or there may be a financial dispute over child support, the division of real and personal property, or that bane of the grass widower alimony.

[RY COODER, "ALIMONY"] Alimony, alimony, alimony, alimony, alimony killing me I don't want six extra children when ain't but two that look like me Please have mercy, judge your honor Alimony killing me Alimony, alimony

On August 6, 1954, John Jacob Astor married Dolores Fullman. They went on a 46-day honeymoon, got off the boat, and never lived together again. John and Dolores battled in the courts for the next 14 years. In 1954 alone, John Astor paid $100,000 in attorney's fees. In return for 46 days of cohabitation, he paid almost $200,000 in alimony and attorney fees to his wife plus a considerable but undisclosed property settlement.

Large property settlements are not necessarily inequitable however. Several years ago, in the Minnesota case of Bollenbach versus Bollenbach, the state Supreme Court emphasized the principle that when a man wants to get rid of his wife for somebody else, he has to give her enough money so that she can retain the standard of living to which she has become accustomed. In that case, the husband had inherited several million dollars and the court required him to give half of the money to his wife of many years. Just because he was tired of her, the court said, he couldn't throw her out into the cold with nothing.

The transition from marriage to divorce can be painful enough without forcing people to drag each other through the mud in a public forum. However, when the 1974 Legislature passed Minnesota's so-called no-fault divorce act, the lawmakers were not altogether clear about whether they meant to eliminate all the mud. While the law effectively removed fault as a necessary ground for the dissolution itself, the legislators were unclear about whether fault should remain a consideration in financial matters such as alimony, child support, and property division.

No specific mention of this issue was made in those particular sections of Chapter 518. This created a hole in the law where two conflicting positions were arguable concerning the role that fault should play in divorce property settlements. University of Minnesota family law Professor Robert Levy.

ROBERT LEVY: Therefore, it was fair to argue, on the one hand, that the old decisions, which said that fault were relevant continued to be relevant so long as the legislature had not said that it's no longer to be taken into account. On the other hand, the argument could be made that the reason for changing the law respecting grounds for divorce was to take hostility, and anger, and name calling out of divorce proceedings, and simply to direct judges to find out whether the marriage was dead or irretrievably broken. If it were permissible for a judge to take bad conduct into account in distributing property or in determining how much alimony was to be paid, then the same kinds of fights which had been encouraged in determining whether a divorce was proper would simply be shifted over to the determinations by the judge as to how much property should be distributed.

BOB POTTER: With the thousands of divorces, which occur in the state each year, this issue could not remain unresolved for long. The Minnesota Supreme Court was eager to end the confusion and it did in the case of Peterson versus Peterson. Professor Levy and others argued to the Supreme Court that the legislature in passing the '74 law had intended by implication that courts should no longer consider fault or marital misconduct in dividing property. On the other hand, [? Raymond ?] [? Plutz, ?] an attorney who specializes in divorce cases argued to the court that it would be unfair and unreasonable if the courts could not consider marital misconduct in property division.

[? RAYMOND PLUTZ: ?] Conversely, acting or openly declaring that the marriage is meaningless to you, that you have no intent of subscribing to the marital duties imposed on you, that you feel no responsibilities to the marriage or to your spouse, but don't forget to send the alimony or don't forget to remember me favorably in the property division. As you can see that's contradictory. And that sort of conduct is what we speak of when we say serious marital misconduct.

ROBERT LEVY: In the Peterson case, the Supreme Court of Minnesota decided that fault would continue to be relevant to property and alimony distribution, but issued in what lawyers call dictum. A dictum is an instruction to judges, which is not necessary to decide the case, but nonetheless a statement, which judges would take into account. In any event, in dictum, the Supreme Court of Minnesota made it clear that although fault was still relevant, a judge had discretion to decide whether or not he would take fault into account.

[? RAYMOND PLUTZ: ?] And we go back into the long line of decisions dating back to 1877, which says that this sort of conduct is one of the many considerations in determining what the property division should be, what the financial distribution should be between parties. I think that original decision said, and it has been repeated in various forms throughout the years, that an adulterous woman cannot stand in regard to alimony the equal of one whose conduct is irreproachable. And whether it's adultery or other things that are just totally destructive of the marriage relationship, totally selfish, I think pure justice requires that it be at least considered.

SUSANNE SEDGWICK: My problem is I just don't know how to do it. I guess I don't know how you, number one, assess fault on the part of both parties and add it up. And you'd almost have a comparative fault type thing. If the fault that's to be considered is the traditional biggest fault, which is or always was adultery, I don't really think that's the predicating cause of the breakup of very many marriages. It might be an ancillary factor, but I don't think it's a predicating cause.

And I don't think it ought to be the grounds for treating one party inequitably after 30 years of marriage. So I don't know. I've tried to reconcile the Supreme Court decisions with my own way of thinking by telling the attorneys that if they intend to introduce fault and they want the court to consider that in an inequitable division of property, they're going to have to tell me how to do it because I just plain don't know how.

BOB POTTER: Judge Sedgwick's candor in admitting her confusion with this area of the law is unusual. Judges do not often speak for attribution and are rarely open about such feelings. Perhaps with good reason, Judge Sedgwick has several times been reversed on this issue by the state Supreme Court. So it's hard to tell whether she is unusual in her approach to the problem of weighing fault in property division.

There are, of course, many factors in addition to marital misconduct, which any judge will have to look at in deciding how to divide income and property between two people who are separating. Judge Sedgwick.

SUSANNE SEDGWICK: Number one, I want to know how long the marriage is. And I guess I have to know what the relative responsibilities of the parties were during that marriage. If there's a traditional marriage where the man has been the breadwinner and the woman has been in the home and it's been a long marriage of 20, 25, or 30 years, then, obviously, there's a security problem.

Because the man is going to have usually job security, he may have pensions, or profit sharing trusts. In any event, he has a relatively secure future. And depending on the woman's age, I guess particularly if she's over late 40s, the job market is pretty bleak unless she has some unusual skills or is an unusual woman.

But I would try to sometimes unequally divide property in order to give more security to the party that doesn't have the job security. If I had the choice, for example, between being able to equalize the party's relative positions by property or doing it by alimony, I probably would do it by unequal division of property if there was a lot of animosity between the parties so that I could break them off completely and alimony still keeps them tied to one another. However, there's two sides to that story too because alimony is also a very real tax-planning consideration. , Actually, where you have a property settlement, the property transferred is not tax deductible to the person that has to transfer it, nor is it taxable to the person who receives it.

Where you have alimony, it's a tax-- it's tax deductible. And under the new under the 1976 Tax Reform Act, it really has a substantial impact on some of the middle income people because alimony can be taken right off the top along with the standard deduction by the person paying it. And prior to that, you had to itemize deductions in order to take alimony. But now you can take the standard deduction and alimony right off the top by the person paying it.

Alimony is taxable to the person who's receiving it. The tax planning that goes in there can make the difference between a family living comfortably after the dissolution and a family having to really scrape.

SPEAKER 12: I don't like this and I don't understand why it's happening.

[SONNY AND CHER, "YOU BETTER SIT DOWN KIDS"]

(SINGING) You better sit down kids I'll tell you why kids You might not understand kids But give it a try kids Now, how should I put this I've got something to say Your mother is staying, but I'm going away

No we're not mad kids and it's hard to say why Your mother and I kids don't see eye to eye Say your prayers before you go to bed Make sure you get yourself to school on time I know you'll do the things your mother asks She's going to need you most to stay in line

SPEAKER: I wish it would stop.

SPEAKER: I wish that God would help us in this and I pray to him every night.

SPEAKER: When I heard that my mom and dad were going to get divorced, I was really sad.

SPEAKER: And when I heard my mom and dad were getting divorced, I couldn't believe it. I was too scared to.

SPEAKER: I cried and I couldn't get to sleep when they told me that they were getting divorced. And that night, my mom slept on the floor and didn't sleep with my dad.

SPEAKER: I want to live with both my mom and my dad.

SPEAKER: I don't see why they don't talk to us about this and how we feel about it.

BOB POTTER: OK, you're getting a divorce, but what about the kids? Child custody and visitation can be the most volatile, painful, and difficult decisions in the whole divorce process. Children generally love and need both parents and most parents are genuinely determined to do what is best for their children. Usually, by the time a couple comes into court to finally dissolve their marriage, they've already determined with whom each child will live and what visiting rights the other parent will have.

In these circumstances, usually, the mother gets custody of the kids and the father has very flexible visitation privileges. But it isn't always so easy. While this type of separation is being arranged all parties involved, parents and children alike, are often quite confused, unwilling to make a final decision on such an important matter. So they will ask the court to decide, but courts prefer to avoid such responsibility if at all possible. So many metropolitan areas have developed special services to encourage people to make these decisions themselves.

SUSANNE SEDGWICK: We have tried to facilitate people making their own decisions by a mediation process. And that's what initially happens. Now, if a couple comes in and indicates to the court that they can't resolve the question of who is to have primary care of the children, we would explain to them the mediation process and explain to them that we have experts that have seen a lot of families with a lot of similar problems that would be available to help--

ROBERT WYCKOFF: Well, our services are all an alternative to court action and an alternative to systems in relying on the ability of people to make decisions for themselves. Most of it is a counseling process. Now, critical to this entire process is the involvement of all the family members you see. The key is then to give some kind of an atmosphere so that people can talk between themselves.

BOB POTTER: Robert Wyckoff of Hennepin County Child Custody Mediation Services. Their offices are on the same floor as family court and they are an official auxiliary to the court. Their office has over 20 counselors and Saint Paul has a comparable staff. Counseling sessions and groups are occurring constantly dealing with the problems, such as personal adjustment to divorce child custody, visitation, and even drug dependency.

Sometimes the father and mother have been fighting bitterly. Sometimes they have an amicable relationship, but just cannot agree about what should be done with the kids. Sometimes these problems continue years after the divorce.

SPEAKER: My mom now she has to get a job because my dad doesn't live with us anymore and she doesn't have much money. And then we don't see her until after dinner when she comes home. And when my mom's not here, then we fight and we-- and then we have a lot of yelling and the neighbors think something's wrong.

ROBERT WYCKOFF: A big element also is parenting, helping people know how to be parents to their children.

SPEAKER: Sometimes, my mom and dad say bad things about each other.

ROBERT WYCKOFF: There's a real propensity in non-custodial parents, for instance, that they have access to the child maybe once a week.

SPEAKER: When my dad comes to get me on weekends, he always brings me presents.

ROBERT WYCKOFF: There's a real inclination to make that a Goody time we're going to go out and pull out all the stops. We'll go to the candy store, we'll go to shows, and we'll do all those exciting things.

SPEAKER: When my mom picks me up, she always gets me a candy bar or something.

ROBERT WYCKOFF: The idea of the closeness of parent to child gets lost in that kind of stuff you see. There's not really the warmth, and the communication, and just being together that's so important.

BOB POTTER: Most of the people who utilize this type of service work out an arrangement between themselves. But there's always that 10% who can't work it out, then it's up to the judge.

SUSANNE SEDGWICK: The factors are pretty well laid out in the statute that are to be considered by the court. But I suppose there are the common sense factors that most people would list themselves, and that's the emotional ties and the love and affection that exists between the competing parties and the children. Which party is best able to provide for the physical and emotional needs of the children?

SPEAKER: Has one child been born of this marriage?

SPEAKER: Yes.

SPEAKER: Is that child's name Eric John Anderson born on September 1, 1973?

SPEAKER: Yes.

SPEAKER: You are alleging that the best interests of the child would be served by a grant of custody to you and that you are a fit and proper person to have the care, custody, and control of the child? Has the child been living with you since he was born?

SPEAKER: Yes, he has.

SPEAKER: Are there love, affection, and other emotional ties existing between you and the child?

SPEAKER: Yes.

SUSANNE SEDGWICK: In essence, it is who provides the psychological support and who can continue to provide it and provide the child with the greatest stability.

SPEAKER: You are alleging that the respondent is an unfit person to have the care, custody, and control of the minor child. Do you believe that the respondent has a violent temper?

SPEAKER: Yes, I do.

SPEAKER: Do you believe that the respondent abuses alcohol?

SPEAKER: Yes.

SPEAKER: Do you fear that the health, safety, and welfare of the minor child would be impaired if the respondent were ever granted custody of the child?

SPEAKER: Yes, definitely.

SUSANNE SEDGWICK: But it's the party that reads to the child and that cares for the child when the child is sick, the party that the child will call or come to for comfort.

BOB POTTER: Once the court makes this type of custody decision, several questions may remain, such as child support payments and visitation rights. Attorney Sue Short.

SUE SHORT: With the child support, what the court does is that the court evaluates the financial circumstances of both parties. And under the statute, they also may consider the financial circumstances of the custodial parents, that's the parent with the child, spouse if there is one. Now, that spouse does not have any support obligation as to the child, but they do consider that as a source of-- a source of revenue although it is not-- there is no enforceable support obligation there. They balance the financial circumstances, the amount of earnings, the types of assets owned by the people and that sort of thing. And they arrive at a figure which seems reasonable for the non-custodial parent to contribute toward the support of the children who are with the custodial parent.

The child support award is almost never sufficient to care for that child totally. It is usually expressed in terms of an amount per child per month.

SPEAKER: I didn't really even know if I would get child support. I hope that I would, but I also know what my husband is like and how he probably wouldn't give it to me anyway. And I also know how the law works. They can only do so much.

If he doesn't pay, you can put him in jail. But what good does that do? He still isn't going to pay.

BOB POTTER: Unfortunately, within two years of the divorce, most people are no longer paying their child support or alimony. Collecting these court-ordered payments is such a problem that the Anoka County Attorney's Office, for example, has set up a special section to take care of such tasks. Frequently, people who don't get the payments from their former spouse end up on AFDC.

Generally, legal remedies are so difficult, or traumatic, or fruitless that most people do not take the matter back to court. Among those people who do make payments, there are frequent complaints that the payment figure originally settled upon has become unfair after a period of time. For instance, a non-custodial parent has gotten a much better paying job, has quadrupled his income, and so now can afford much more than the $60 a month he has been paying.

SUSANNE SEDGWICK: Finances just change all the time. And the law is that there has to be a substantial change in circumstances between the time of the judgment and decree and the time the matter comes back into court and that the substantial circumstance really has to be on both parties. There has to be an increased need on the part of the children that has substantially increased, as well as the increased ability to pay. So the mere fact that somebody is lucky enough to have quadrupled their income doesn't necessarily mean that the court can legally quadruple the child support.

BOB POTTER: Perhaps the most difficult situation with child support and alimony arises in interstate situations. We are a very mobile society, which creates a real problem when, for example, the non-custodial father moves to Montana and stop sending any money.

SUE SHORT: There is something called the Uniform Reciprocal Enforcement of Support Act, which has been adopted in many states. That is a mechanism for enforcing child support and alimony across state lines. The process is simply to apply to the court in the home state of the person who was entitled to receive the money. That court will correspond with the-- there will be an order and the county attorney actually is the one who does the corresponding with the county attorney in the foreign state and then they proceed against the debtor in that state.

It works fairly well. But, of course, then what happens is that then the debtor appears in the foreign state and then the foreign state has the power to reduce the amount, which is owed. So it pretty much depends upon the willingness of the other state to enforce the child support order.

But generally, it is a way to get to a person in another state. It's kind of an insane system because we have these little states and you can't do anything outside your state. And it's really odd because it is so easy to go to another state and then you just simply get a barrier of immunity from state to state.

BOB POTTER: Visitation can cause even greater problems than those which occur over money. The initial visitation decision is made much the same way as with custody, looking at what the children need and what the parents can provide. The general philosophy is that a child needs both parents. When both parents are reasonable, this arrangement is usually flexible. But some people fight forever and may need continued counseling or very structured visitation times and procedures.

SPEAKER: Visitation was set up for me to see my son and Wendy was finding every loophole in it that I couldn't. Oh, he's sick or well, we're going out of town. We're going to be out of town. We can't come back in.

You can have them the next week. And the next week and come up, well, we're out of town too. I started getting tired of it and we got a counselor involved. And she still counsels us off and on.

She don't like seeing us come in and I don't like bringing her in. But I never knew my dad. I'd never seen him and he's dead now.

Jimmy's not going to have that happen. He's going to know who I am. He's going to grow up knowing me.

SUE SHORT: In fact, I've had cases in which there have been actual physical encounters over the child, over transferring the child. It was a baby situation from passing the baby from one to another and the one ended up getting thrown down the stairs with a baby in his arms. People do incredible things when they're under that kind of emotional stress.

SPEAKER: And so when she decided she wasn't going to let me see Jimmy, John backed her up. And she usually picked the time that he was drunk so I couldn't-- he had 50 to 100 pounds on me. I'm not a fighter. I never have been.

These are the things I feel that my right as a father has been taken away from me, not seeing that he's getting the right bringing up. And yes, I would like to get custody of him. I'm trying. It's going to be slow.

And when she finds out, it's going to be very nasty because she is really going to resent it. Well, I'd have to prove-- what's a word for it-- that she's an unfit mother, let's put it that way. And I couldn't. She loves--

[BABY CRYING]

Tammy, quiet. She loves Jimmy. I'll never say she doesn't. But I think she can't cope with him. Especially right now, I don't think she can cope with him and the two other kids.

SUSANNE SEDGWICK: And we do not lightly change a judgment and decree. But on the other hand, people have changes of circumstances or children's circumstances change, people's financial circumstances change. One of the things that is a very sore point and a sad thing is where there is a remarriage and the parent with custody marries someone who is going to be moving out of state or the parent with custody is with one of the many companies who routinely transfer their employees out of state.

And the other parent watches the child go 5,000, 6,000 miles away from home. So those matters frequently come back in. And there is no resolution to them other than to try to determine some reasonable visitation in some way to be able to keep as much contact as possible with the parent who either will remain here, who will go away.

SUE SHORT: Child custody problems become incredible mazes when there are interstate situations. For example, you have a person who has custody in Minnesota, say, you have a father who has visitation rights and this will get into the visitation situation too. Father who has visitation rights in California, say. The children go to him for two weeks in the summer for visitation. He refuses to return the children to Minnesota at the end of visitation.

The Minnesota court cannot order him to return the children because, of course, the Minnesota court doesn't have jurisdiction to order him in California to do anything. So what you have to do-- what the person has to do is to go to California, get a writ of habeas corpus there, and to have the children then return to Minnesota. But that involves traveling to California or at least retaining counsel in California.

There are states which will not cooperate with that sort of a process. There are states which regard children found within their boundaries as being within the protection of the state. So it's very difficult for that to happen.

BOB POTTER: Of course, for most people it's prohibitively expensive to fly to California and retain counsel. But some people have trouble just paying legal expenses for the simple dissolution proceedings right here in Minnesota. And even among those who can pay, there's frequently a good deal of resentment about how much it costs for what is often a very simple paperwork exercise for their divorce attorney.

SPEAKER: My lawyer, I hope he died an agonizing slow death. If he didn't die, I'd love to shoot him in the kneecaps and see to it that he did.

BOB POTTER: Divorce is a process, not a single event. It is often a long process during which emotions are heightened, relationships ripped apart, financial problems exacerbated, and children hurt. And on top of it all, the legal system imposes its often confusing rules and procedures.

People's attorneys can become the direct representative of those legal hassles. And although the attorneys will usually serve to smooth out difficult times and resolve problems, occasionally, people feel their lawyer did quite the opposite. For many reasons, some good, some bad, lawyers are not always respected in American society. Many people have bad memories of their brief encounters with the legal profession.

SPEAKER: I went to his office, the wife and I, and it was in a plush building downtown. High floor, big suite, mahogany doors, rows and rows of books, plush carpeting, very formal, very impressive. The place oozed respectability and power and all manner of things unknown to us, but very impressive.

We're ushered into the lawyer's office, sat down. He wheezed in, a fat disgusting fellow at first glance, turned out to be more disgusting later. He'd had a bulbous nose, veiny, WC Fields sort of character. Potbellies, vest didn't quite make it down to his pants top.

Anyway, we told him what we wanted, how we wanted to divide up the few belongings we had. That wasn't good enough for him. He started talking to the wife and insinuating-- never directly, but insinuating that if she wanted, she could have any or all of the items which we had agreed I would keep, and further that she could tell me to take a walk and she could keep him as her attorney and I would have to pay his fees as well as give her everything.

BOB POTTER: Professional ethics and disciplinary rules require any attorney representing two clients in the same matter to advise both of them fully of their rights, especially when the two clients are in a potentially adversarial position like in a divorce case. This is essential. Otherwise, for example, one spouse might conceal assets in order to get a more favorable property settlement.

But sometimes, an attorney may be less than conscientious or tactful in exercising this duty. Many people have the perception that the lawyer really does not have the best interests of the parties at heart, rather that money and efficiency are of prime importance. In 1971, Chuck Thibodeau and several others who had miserable experiences with divorce attorneys and courts started the Divorce Education Association or DEA. They contended that 90% of all marriage dissolutions could be handled by the parties themselves without lawyers and ideally should be handled outside the court system.

CHUCK THIBODEAU: People get ripped off in divorce. Men, women, and children suffer at the hands of the efficiency of that sausage machine, that they're pushed through there on an automated basis. Court orders, if you took all the court orders in one day and read them, they all look alike. The only thing that would vary would be the numbers on them. Since 1971, I've been helping individuals, as a social work advocate, obtain their own divorces without the assistance of any attorneys.

Out of that, I would say probably 70% of the people that I met on first contact had it all figured out. Most of the time you're going to find the man in pulling out saying, hey, you know, wife and kids take the house, take all of the assets. You guys will need that to get along on. I'll get an apartment and I'll send you so many dollars. But what you said earlier was important for the other 30% that I'm talking about is that, yeah, people need their legal rights decided in some form, a certain percentage of them do.

After the contested divorce would be involved in the other 30%, out of that, about 20% of that 30%, would come to agreement. They would negotiate. They'd be willing to negotiate the other 10% want to fight. And the court was there, and they fought, and they get destroyed, and they got wiped out.

[LAUGHS]

And all the lawyers were the only ones who walked away with anything.

[LAUGHS]

BOB POTTER: As it turned out the lawyers even walked away with Thibodeau's Divorce Education Association. DEA was taken to court by the State Bar Association and charged with the unauthorized practice of law. DEA claimed that the lawyers were angry because the association had successfully counseled thousands of people to handle their own dissolution paperwork, thereby depriving attorneys in the state of many fat fees.

DEA also accused the bar of a conflict of interest in the case insofar as judges, who are members of the bar, would be ruling on the merits of the case. The Bar Association claimed that DEA was run by persons unversed in legal technicalities, thereby potentially depriving many clients of their full rights under the law. The court decided that Thibodeau and the DEA were not qualified to practice family law.

In spite of that decision, Thibodeau points to thousands of people who successfully engineered their own marriage dissolution without using an attorney. And he still strongly believes that in most cases, attorneys and attorneys' fees are an unnecessary, even a negative factor in divorce proceedings. Judge Susanne Sedgwick

SUSANNE SEDGWICK: Well, I hear a lot of people complaining that they don't need a lawyer for it, but I go back to the analogy to taking out your own appendix. Going through a dissolution action when you're sitting on the other side of the table and you're are a client or you're one of the litigants, and you have your own concerns, and you have your own emotional involvement in the situation, it probably looks easy. And it probably looks as if the lawyer isn't doing anything.

And my experience has been that people who are emotionally involved in anything, but particularly in their own affairs, are not using clear judgment. And we have a lot of difficulty with people who have attempted to act as their own attorneys and they have wanted to amicably settle something. And there has either not been full disclosure between one party and the other or there has been an unrealistic expectation of what would happen afterwards. Oh, well, I'll take care of you anyway so don't worry about this or don't worry about that.

Sometimes they're just-- people are too involved to make the kind of business decision that they would make on the part of somebody else and I foresee that as being the real job that a lawyer does. We have been talking earlier about just some of the tax ramifications even for relatively modest incomes. And if people know that, fine. But if they don't know it, they can be-- both parties can be, in essence, cheating them themselves.

BOB POTTER: At the same time, even people who are glad they utilize the services of an attorney sometimes feel that, at least as far as the fees are concerned, they got cheated.

[? RAYMOND PLUTZ: ?] Well, that's like asking a contractor how much you'll charge to build a house. I'll have to know how many bathrooms you want in your house and whether you want it made of brick, or stone, or wood. It ranges where there truly are no issues, where both parties have a good grasp on what the assets are and what their rights are, and in the light of that knowledge have reached an agreeable decision, and that is reasonably in accord with accepted standards of fairness. I'll handle that sort of a divorce for about $350.

SUE SHORT: I have a sliding-fee scale that slides all over the place. I base it on the financial ability of both parties essentially. It is possible for either party to get a contribution to his or her attorney's fees from the other person. That depends upon, as I said, financial capability.

A default can sometimes go as high as $500 if it's a very complex thing, if you have a lot of real estate and that sort of thing. And there are a lot of attorneys who do charge more than that. On the other hand, I have charged-- I have done them even with children and with real estate both for as little as $250 to $300 if the financial means simply aren't there.

Those are the people who are caught between legal aid and the deep blue sea. I mean they have too much of legal aid, but they just simply do not have the means to pay any more than that. I would say an average figure for me is $350 to $400.

BOB POTTER: Marriage dissolution is sometimes the simplest of legal problems and at other times the most complicated and convulsive. On the one hand, divorce is simply a legal process involving money and property, not altogether unlike a simple contract dispute or fender bender controversy. On the other hand, divorce encompasses the most basic of human emotions and relationships-- love, hate, independence, children, identity, religion, and pain.

SUSANNE SEDGWICK: I've heard a lot of stuff on TV about cancer patients. And the first thing they ask is, why me? And I think this is probably the routine reaction of people involved in divorce, why me?

Why can't I handle this? What did I do wrong? What could I have done better? What can I do now?

All these self-doubt things, really, why can't I handle it? Why am I alone in this? I'm the only one in the world that is suffering this way.

SPEAKER: I didn't like that my mom and dad used to fight a lot. I want to live with both of them because I really love both of them.

BOB POTTER: Of course, the law can't do anything about this pain, loneliness, and regret. The law is, at best, an imperfect structure with which to define particular aspects of human relationships. With the rest of it, you just hope that people can work it out by themselves.

SUSANNE SEDGWICK: And it's important to know that one is not alone, that other people are experiencing the same problems, that other people are experiencing the same pain, the same sense of failure, the same feeling that somehow in the future, it can happen and happen right, that marriage is not a bad thing, that the opposite sex is not out to do them in, that reparations need not be visited.

SPEAKER: Any regrets?

SPEAKER: No. None at all. Sometimes I miss two paychecks coming in when we're eating rice Krispies three meals a day.

[LAUGHS]

But your body adjusts to all the deficits, all sorts of deficits. No, I don't regret it.

SPEAKER: The day I realized that it was done between Joanne and me was a day of freedom, and comfort, and self satisfaction saying, OK, so that's that. So turn away from-- quitting looking back and start looking ahead. And within about two weeks, I met another lady, which a few months later, I married.

[PAUL SIMON, "50 WAYS TO LEAVE YOUR LOVER"]

(SINGING) The problem is all inside your head, she said to me The answer is easy if you take it logically I'd like to help you in your struggle to be free There must be 50 ways to leave your lover

She said it's really not my habit to intrude Furthermore more, I hope my meaning won't be lost or misconstrued But I'll repeat myself, at the risk of being crude, there must be 50 ways to leave your lover

BOB POTTER: This program was written and produced by William Tilton, engineering by Michael Moriarty and William Tilton. Funds for this series are provided by grants from the Minnesota Bar Foundation and the Nash foundation. We'd like to thank University of Minnesota Law professor JJ Cowen for his assistance in its preparation. This is Bob Potter speaking.

(SINGING) Get yourself free Slip out the back, Jack Make a new plan, Stan You don't need to be coy, Roy You just listen to me Hop on the bus, Gus You don't need to discuss much Just drop off the key, Lee and get yourself free She said it--