Can’t find fault in new laws yet

ROBERT GARDNER

Our legislators take a lot of heat.

For the last few years there has been angry talk of gridlock in

Sacramento, and yet I notice that each year there’s a long list of

new laws that take effect, so they are obviously doing something.

I always read the list of new laws to be sure that I have not

inadvertently become a lawbreaker, and I am relieved to find out that

if the state actually runs out of money and can no longer pay my

pension, I have a fallback. I can sell churros from a cart.

Apparently, before this year, they could only be sold in stores.

I’m not too clear in my mind what churros are, but I can see myself

doing dandy business walking around Corona del Mar with my cart full

of them followed by eager customers.

There was another law that staggered me with its implications.

This law states that you can’t drive a car and watch television at

the same time. People actually do this? Well, no more, and just in

time. I don’t want some TV-watching driver running over me and my

churro cart.

Some laws have a more significant social impact, like the no-fault

divorce law, enacted in 1970. With its passage, the age of the happy

divorce arrived.

Before 1970, the parties spent a great deal of time trying to pin

the blame for the divorce on the other party. This meant hours of

listening to messy testimony about who was guilty of adultery,

cruelty, desertion or neglect, the grounds for divorce.

With the enactment of no-fault divorce, blame and responsibility

went out the window. All you had to do was find a lawyer who could

pronounce the word “irremediable.”

This was so he could ask the only question necessary to break up

the marriage: “Are there irreconcilable differences which have caused

the irremediable breakdown of the marriage?” This is lawyer-speak

for, “Do you want a divorce?” The answer, looking at statistics, was

a resounding “Yes!”

Now it didn’t matter who was at fault in the breakup of the

marriage. Property acquired during the marriage must be split right

down the middle, regardless of which spouse accumulated it, which

spouse broke up the marriage, which spouse behaved and which one

misbehaved.

The idea behind the act was exemplary -- to take the bitterness

and rancor out of the procedure.

According to the well-intentioned authors of the measure, by this

legislative sleight of hand, divorce matters were no longer adversary

proceedings. Unfortunately, no one ever cared who got the divorce.

The parties fought over children, custody, support and money.

They still do -- and just as bitterly.

The law didn’t remove the rancor, but it did remove fairness.

As a judge, at one time I could evaluate fault or blame and

exercise judgment in the division of property. A husband is tired of

his aging homemaker wife and wants a newer model? I couldn’t stop him

from leaving, but I could be sure that the former wife was taken care

of properly. No more.

After no-fault, it was 50-50, regardless of the parties’ behavior.

I wouldn’t want to go back to the days when it was virtually

impossible to get divorced. I don’t think it benefits anyone to have

two people who can’t stand each other stay married. However, I don’t

know that we should have made it as easy to trade in a wife as a used

car.

Only time will tell if any of the laws introduced in 2004 will

have the kind of impact no-fault did.

Meanwhile, I am content to know that the people I see zooming by

on the highway are not watching Major League Baseball at the same

time and that I can legally sell my churros from my cart.

Just as soon as I find out what churros are.

* ROBERT GARDNER is a Corona del Mar resident and a former judge.

His column runs Tuesdays.