Divorce Litigation and the Welfare of the Family

In a recent article Chief Justice Warren, writing on the topic The Law and The Future, reminds us that Some of the defects in our system are inherited; others keep creeping in. Justice, like freedom, needs constant viligance. There are some who believe that an inspection of the modern orthodox adversary divorce procedure will reveal one or more of those defects. It is the purpose of this article to attempt such an inspection. There is nothing novel in the suggestion that divorce is a controversial subject. Its repercussions impinge on many of the social and physical sciences; but its contact with the law is an occasion for some people to view with what, one suspects, is alarm. In particular, criticism is directed against the procedural aspect of divorce litigation. There is probably enough truth in some of the unfavorable comments to make the most enthusiastic supporter of the orthodox system hesitate to pronounce it unqualifiedly a show piece, an example of the best that courts and lawyers are capable of doing... The reader at this preliminary point should be warned that this paper is not another log thrown on the eternal fire of policy controversy--shall we have more or less divorce. Rather, it is a plea: for a better quality of service to the public; for improving the public relations of lawmen serving in a lay community. If the recommendations of this article were all to be adopted there is no reason to assume that the quantity of divorce statistics would thereby be increased or decreased. There might, however, be an improvement in the public attitude toward the administration; and some of that might reach as far as the courts and the bar. With this caveat we proceed with the argument. When one mentions facts with respect to litigation there arises in legally trained minds a customary slogan: the truth, the whole truth and nothing but the truth. This is our present starting point. The argument will run that: the whole truth (to shorten the phrase) should be available to the divorce judge; presently, too often, he does not have the advantage of this basic commodity; and that something ought to be done about it. In keeping with this breakdown the article divides naturally in three sections: why should the whole truth be made available to the divorce judge; why is it not now being made available; and what may reasonably be done to remedy the matter