Free Speech and the Law, Part I

GUEST: Harriet Pilpel
VTR: 10/16/1979

I’m Richard Heffner, your host on The Open Mind. My guest is the attorney distinguished for her contributions in many different fields. But I’ve invited Harriet Pilpel, expert in the field of marriage and the law, to join me today specifically to discuss on the seas of matrimony in contemporary America.

Mrs. Pilpel, thanks for joining me today. I’ve noted that you’ve written that in our times it’s clear that the tie that binds marriage, no longer does, not at least to the extent that it used to. And that’s a fact. Statistically we can demonstrate that. But you’ve gone in various things that you’ve written and in our own discussions to suggest that our courts ought to do more by way of recognizing that fact, recognizing that people now live together beyond and above or below the usual patterns of marriage. I wonder whether that kind of recognition by the courts and by the offices of the courts, lawyers such as yourself, doesn’t bring about an acceptance of that situation, doesn’t exacerbate it, doesn’t make it more the case, isn’t a self-fulfilling prophecy more than anything else.

PILPEL: Well, I hate to correct my host, but it is not the courts by and large who are going to make the changes; it’s the legislatures that have made the changes. I mean, for example, the overwhelming number of states, I think it’s 37, but it may be 47, in the United States now have no-fault grounds for divorce. The courts didn’t do that; the legislature does that, and the courts interpret what the legislature has done. You are right however in one respect, and that is that by and large legislatures have not addressed themselves at all to such a question as living together without marriage. The courts, faced with an issue of two people who have lived together without marriage, who are now fighting about whether their property should be divided or whatever, have no choice. I mean, you wouldn’t have them abdicate. I mean, they are faced with actual controversies between two live people, a man and a woman. And so if the legislature hasn’t given them guidance, they have no choice. They have to find out some solution for the problem that’s before them.

HEFFNER: But there have been those that said that California at the Marvin decision, the court, not the legislature, there seemingly put its seal of approval upon a relationship beyond marriage and gave it some of the benefits of marriage. Is that an unfair…

PILPEL: Well, lawyers make a distinction, as you no doubt know, between holding what they held and what they said. And what they said is merely called dictum and it is not binding. It is true that the California Supreme court in a decision which turned out not to apply in the Marvin case held that where a party to a two-person couple who have been living together more or less as man and wife could prove that there was an agreement between them that if they separated or dissolved there would be a certain division of property, that that would be enforced. But that really is not new law except as applied to people living together. That’s ordinary contract law. I mean, if you and I make a deal that if we go into a business and then we break up the business and our arrangement was oral or written that if we broke up the business we’d each get half, that would be enforceable on general contract principles. It would not require legislation. So that what the Supreme court of California seems to me to have done – and I’m not a California lawyer, I hastily avow, and could be totally wrong – but from reading the decision in New York, it seems to me what they said is, “Sure, if she can prove an implied or an express contract that certain things were to happen if they separated, she can recover.” The fact is that in the final decision that’s not what happened. What happened was that the court, under what is called general equity principles, namely what most people would call just ordinary fairness, ordered that Lee Marvin pay her a certain amount of money for, if effect, rehabilitation so that she could get back to the career and to the lifestyle she had before. So that really had nothing to do with what the Supreme court of California said.

HEFFNER: but in the first instance – and you don’t practice in California, and I don’t practice at all because I’m not a lawyer – but there have been those who have talked about divorce without marriage, and that in a sense we’re coming closer to, given the California Supreme Court’s initial decision, to enjoying some of the benefits of divorce without some of the drawbacks perhaps of marriage. Is that a fair statement?

PILPEL: Well, it’s fair but partial.

HEFFNER: What do you mean partial?

PILPEL: I mean that it is not just the Supreme Court of California which has recognized that if couples have a contract between them as to what’s to happen in the event of certain things happening, that contract will be enforced. I mean, other state courts have held that even in this context. Several other state courts. Now, you talk about the benefits of divorce which sort of startled me because I never think of divorce as having benefits, but I suppose if I turn myself around I can try to figure that out. The benefits of divorce are highly questionable because unless the parties have made a separation agreement, what the wife of the husband will get from the other or from their joint property will depend on what a court decides. So they don’t know what’s going to happen in advance. As a result, I would say that upwards of 95 percent, probably much more than 95 percent, of separations between a husband and wife, or even a non-husband and a non-wife, where there are substantial property interests involved will be settled between them, that is by separation agreement, each represented by a lawyer. They sign the agreement, and when they go to court the court almost always adopts the agreement as, quote, “the benefits of divorce.” I mean, that agreement determines what that couple will get if they’re divorced. At the present time, there haven’t been, I think, any cases anyway that I know of where couples who entered into a living-together arrangement that wasn’t marriage have made contracts in advance of their getting together as to what would happen if they separate. But that is a procedure which is followed very often by couples who are going to get married, as you probably know. There is something called an ante – not again, but before: A-N-T-E – or prenuptial agreement which many couples, especially older couples, enter into before they get married, in which, for example, they waive all rights they might otherwise have to share in the other[s property in the event one of them dies. Now, in a number of states, if they also agree that neither will look to support of the other, that may be unenforceable. It would probably be unenforceable in New York, which is the only law I really know well. It had been suggested, and I think it’s not a bad suggestion, that couples who plan to live together and don’t want any confusion as to who owns what might enter into a similar agreement before they live together, which unless the agreement were conditioned on, quote, “sexual services”, which would be against public policy, but unless that were so, than that agreement might very well be binding if they separated, and they wouldn’t have to go to court as in the Marvin case or some of the other cases I referred to.

HEFFNER: Are you satisfied with a procedure both legislative and judicial that makes it easier for the marriage bond to be severed?

PILPEL: Well, when you put it that way I’d like to be able to answer no, but I will answer yes, because in point of fact when a marriage is irretrievably broken down, no amount of legislation or court decisions will in fact keep it together. And when the states began passing no-fault marriage laws, which I’ll mention in a minute in terms of what they mean, they weren’t doing it necessarily because they thought it was a good idea in the abstract; they were doing it because in point of fact that is what was happening. In other words, if a man did not want to live with a woman, he left her. And if he left her and there were no grounds for divorce that he had against her, and she wouldn’t give him a divorce, they were in a permanent state of non-status as it were. It was extremely hard on everybody concerned, and it was not good for the state.

HEFFNER: Why do you make such a sexist statement? Why didn’t you say, “If a woman leaves a man?”

PILPEL: Because prior to the oncoming of no-fault divorce laws it was more frequent that the man left the woman, not because of anything meretricious about men, but because until the last decade or two women generally were not economically independent, and they were less likely to walk out on a marriage because that’s where their money was. I mean, that’s where they were supported.

HEFFNER: What are the facts of the matter now? Do you know who leaves whom in what numbers?

PILPEL: That depends. You see, the states of the United States all have different laws. There are, as you know, 50 states and the District of Columbia. In those states where there is no-fault divorce, which means, among other things, that if the husband and wife have been separated for a certain period of time, six months, a year, or two years, either can get a divorce just on the grounds that they haven’t been living together for that period of time. Then I think that it may be a pretty 50/50 proposition. In other words, I think that where that’s the ground it is as likely to be the man or the woman. But in a state like New York, where we still don’t really have a no-fault ground, it would still be a problem for many women to leave even marriages that are hopeless from their point of view and bad for them and bad for the children without considerable apprehension as to where their next money was coming from if they don’t work or have resources of their own.

HEFFNER: Well, you know, you talk about the recognition by legislatures, and then in time, in turn, the judicial system of marriages that are irretrievably broken down. But we were both talking a few moments ago about the fact that here, as we tape this show today, the 23rd of August, we both read in a newspaper this morning a letter – no a letter; an op-ed piece – called “Teetering Near Divorce” by a Mrs. X, which seems to say that it has been, in part at least, the pressure of permitting divorce, the pressure of making it easier and more available, that leads her to be incapable of maintaining her marriage in the face of some extraordinary violation of the trust and faith between here and her husband. And she does say – and I really wonder how you respond to this – she says, “I’m at a loss. I would by nature and upbringing have held my home intact at almost any price. And I’m confused by the signals society is transmitting. Only a short while ago society would, for the sake of its stability, have applied sanctions to keep my home together. Now it has dropped its sanctions and no longer seems to think that it has any stake in marriage at all. And that’s why I asked the question at the beginning whether we aren’t eroding it by permitting easier no-fault divorce.

PILPEL: Well, I don’t think we are. I think the erosion preceded the no-fault divorce. This Mrs. X actually reflects a kind of enlightened point of view in one sense. Until recently, most women, faced with proof that their husbands had been unfaithful to them, might have felt societal pressure to get a divorce. She doesn’t seem to recognize that. She is a very permissive lady. She has said in that piece that she would tend to overlook the adultery which she is satisfied exists, and go on with the marriage to preserve the marriage, which she certainly can do. But to give you an idea that the morays of society did not expect that to be the case, until not so many years ago, the only ground for divorce in New York was adultery. It was considered so serious that you could get a divorce for that but not for anything else.

HEFFNER: Yes, but Harriet, I understand what you’re doing with that single ground, but it seems to me that historically, in our literature, in our folklore, what we know about our parents and our grandparents doesn’t seem to indicate that in the face of that kind of betrayal women just went out and were divorced. Quite to the contrary. The pressure was, as she indicates, not that she’s so liberal and accepting, but the pressure in the past would have been society’s to maintain a family; and now it’s the opposite.

PILPEL: I don’t think there’s any pressure toward the opposite. None whatever. I am perhaps influenced by the fact that in New York the opposite doesn’t exist. In New York the only grounds for divorce are faults of various kinds, like adultery, desertion and so forth; or if the parties voluntarily enter into a separation agreement and a year has passed; or if they have gotten a separation decree against each other in a court action. But in most states now mere living apart would make a divorce possible.

HEFFNER: And you have indicated that in so many instances in New York State the separation procedure does take place and it leads almost automatically to divorce.

PILPEL: but I don’t think actually that the number of divorces, contrary to the suggestion in that article, has increased. It has reached a ration of something like one to three. But if you looked at some of the most recent census figures, it appears to be slightly receding. In other words…

HEFFNER: The rate of increase is decreasing? The rate of increase is definitely decreasing, so with all these forces that you are referring to, the fact is the rate of increase of dissolution of marriages is not increasing. That is partly because many people are living together without marriage. And they are living together without marriage, I think, partly because they would prefer to split (I guess is the expression) voluntarily than to have to go through some elaborate court procedure in order to be split. And as you know, I have suggested that we recognize that by establishing two kinds of marriage, which I still think would be a very good idea. What are they?

PILPEL: Well, I would have two kinds of marital status. One would be if two people want to live together, I would let them enter into something which would be called marriage one. Marriage one would last as long as both parties wanted it to last. I could be evidenced, for example, by their going down to the town hall or the county clerk or something, signing a register, Mary Jones and Tom Smith married such-and-such a date. And that would be that.

HEFFNER: Like signing in at a hotel?

PILPEL: Like signing in at a hotel. They would continue in that state as long as both of them wished to. There would be many advantages in that situation. For example, two people live together, they dearly love each other. One of them is in an accident, the other one has no legal status to sign that person into a hospital, to consent to medical treatment if the person is unconscious and so forth. There are various kinds of benefits that might be payable to a spouse that dies suddenly, such as, let’s say, someone in the military who is suddenly killed, a living-together-mate would not be entitled to benefits, but the spouse would. So there would be some benefits. I would permit either of them to withdraw that registration at any time, and I would automatically withdraw the registration as a marriage one status if there were a child.

Marriage two would be marriage as we know it today. A lot of people would maybe go right into marriage two, and that would be their right. I mean, just exactly as we know it today, until death or divorce do us part. But those people who are living together will at least have some modicum of legal status which would cover their situation.

HEFFNER: Does this mean that you do not feel that society has a considerable stake, so considerable that it manifests itself in the law and in our legislation and in our judicial procedures in the maintenance of marriage as we have known it?

PILPEL: I think I would say that I think that is what I think, because in point of fact, marriage as we have known it is not marriage as we know it today. I think society has a very considerable stake in what I would call the family as opposed to marriage, which is why I would have rather strict rules applying to situations where there are children. But in terms of adult human beings deciding on their lifestyle whether with someone else in marriage or someone else in non-marriage, it seems to me that that is not destructive of marriage. In fact, I suggest that possibly one of the reasons the rate of divorce is no longer as increasing as it was is because more people are living together. And I think it is less disrespectful of marriage to live together and then decide whether you are really married before you have children than it is to enter into a marriage and to constantly up the divorce rate.

HEFFNER: Harriet, I’ve resolved all on my own to ask this question of most guests: What’s the downside of what it is you are suggesting? It isn’t likely to be that you have a strong feeling about this and that you are an advocate but that you don’t have some uneasiness about what’s happening to us generally or what would happen if there were this easier pattern of dissolution of, at least, marriage one, dissolution of marriage without benefit of children?

PILPEL: Dissolution of a marriage without children?

HEFFNER: No downside to that?

PILPEL: You could say, I mean, you, somebody, not I, could say that people would be more apt to enter into these meretricious relationships if there were any social sanction. The fact is that the last statistics I saw were overwhelming, as I think I mentioned to you before we went on the air. Between 1960 and 1970 the number of couples living together without marriage increased 700 times, 700 percent. And between 1970 and 1977 it doubled again. And I’m sure since, from 1977 to 1979 it probably increased greatly again. And no law is a sanctuary really. So that I don’t think that it would make a great deal of difference except to make life easier. And for a moment I’d like to make a plea for older citizens in this connection.

HEFFNER: What do you mean, “older citizens”?

PILPEL: I mean people who have married, had their families, and been widowed or divorced and are in their 60s or 70s. Among the groups that are living together without marriage, we often tend to forget that a large group consists of elderly people. They do not enter into a conventional marriage now for a variety of reasons. One is that their social security benefits may be very adversely affected, the social security benefits they’re getting from their previous spouse, if they remarry. And they would be adversely affected.

HEFFNER: that could be handled, obviously. It could be changed.

PILPEL: It could be changed. But I would leave it to you to try to change the social security law. It takes quite a while in the regulations. Another reason is that these people already have their own families, and the natural objects of their affection would probably be their children. And If they enter into an ordinary marriage without any enabling legislation, several things would happen. For one thing, they would acquire a right in the property, each of the other. And in most instances they don’t really want that to happen. They want the property which, let’s say, the man inherited from his wife and the wife from her husband to go to the children of the prior marriage. In addition to that, in some states there would be an obligation to support the other, which they also don’t want, because at the age of 73, let’s say, a man is not anxious to take on a support obligation, and in some states, as I said before, that can’t be waived even if the parties agree to waive it. Some of this can be taken care of by the antenuptial agreement I mentioned to you before, and indeed most couples who have legal advice who are marrying late in life will probably enter into a prenuptial or antenuptial agreement if they have any considerable amount of property and want to protect it. But that wouldn’t necessarily take care of the support question. And when it comes to elderly couples, the question of who can sign for admission to a hospital or who can sign for emergency surgery is very, very important. And so what happens with some of these elderly couples is that the person nearest and dearest to them is impotent to do anything for them, and they have to locate a daughter who is living 4,000 miles away to give the consent. It is very awkward, and it can be very dangerous. And the final reason why this elderly group lives together is often economic. I mean, there are people who find that two actually do live more cheaply than one, especially today when rents are the way they are and so forth. And so they want to live together. But if they live together without marriage, many of them are older people, they’re embarrassed about the whole thing. So I find it difficult to think of many reasons against my suggestion of marriage one and marriage two.

HEFFNER: No downside?

PILPEL: Well, I don’t think…

HEFFNER: Socially, in the larger…

PILPEL: I think socially it would all be on the up for the reasons I mentioned. And I think I am primarily concerned with the older people in this connection. I think it would help the younger people also, but I think they’re going ahead and doing it anyway. The older people who are doing it anyway, I do get a considerable sort of cost to themselves in self-respect and so forth, and we shouldn’t exact that price from them.

HEFFNER: Harriet, what it seems to me you’ve done, you’ve taken the core of the argument against the more permissive attitude that our society has taken toward dissolution of marriage and said the core is children, has to do with raising of children, and if that is not a factor then you want to liberalize…

PILPEL: Then I want the law to reflect the practice. Because in any situation where the law doesn’t reflect the practice, you have, in effect, what we had with prohibition. I mean, if everybody is doing things a certain way and the law says they should be doing things a different way, you get a lot of illegal activity, you sometimes get an end for our legal structure, you get a lot of good people who are hurt and bad people who are helped. So that generally speaking I think the law should reflect the morays unless, to use your expression, there is some strong reason on the downside. And I say that where there are not children involved I don’t see any strong reason on the downside.

HEFFNER: Then I must go logically to the next question. When there are children involved, given the practice you’ve had for many years now and given your involvement in questions of marriage and the law, if you extend it to marriage with children and the law, what are your feelings there? Will you share those?

PILPEL: I have mixed feelings when there are children involved, because there I do feel that if divorce is made too easy there are situations in which an underprivileged or the underprivileged of the two spouses may be very badly treated, and that would impact on the children, or course. I am think of, let’s say, a couple where they’re in a state where there is a six-month separation ground for divorce. And the man has walked out, leaving the woman with two small children. Now, theoretically, the fact that he can get a divorce does not affect the fact that he has to continue to support them. I mean, legally he still has to continue to support them if the wife is devoting her time and energy to the children, who are, let’s say, two and four or something. The fact is, and this is something of a problem, that there are, shall we say, husbands and wives, who if they have to make an agreement for support before they get a divorce, will do so. But if they can get a divorce without satisfying the court that they have made decent support provisions, may be less apt to do so. Now, since New York is a special state, I really don’t know whether it’s worked that way. My impression is that in many states the courts will not give a divorce even on the basis of a six-months or a year’s separation unless they are satisfied that if there are children some provision has been made for them. Or unless they’re satisfied that if, let’s say it’s a marriage of very long duration and the woman has been off the labor market for a long time and has contributed to her husband and so forth, that some provision is made for her.

HEFFNER: I am fascinated that for a person who wants to recognize and deal with reality you keep making it almost exclusively, or exclusively in your presentation of men leaving women with children. Seemingly the statistics should indicate that there is an increasing, a growing pattern of women leaving husbands with children. You know, I realize we have almost no time left, and I didn’t stick with this question of divorce without marriage, which does seem to me to be enormously important, that the Marvin decision, however one may deal with it technically, seems to point in the direction of a sanction upon relationships that used to be marriage and isn’t any more.

PILPEL: Well, if you were going to point to that case, it contains a rather sad message for people who want benefits from living together without marriage, because the plaintiff in that case really got very little.

HEFFNER: But could have gotten more.

PILPEL: If there had been a contract proven. And I think that when there are two adult human beings who wish to make a contract that they will do such-and-such if they separate, why shouldn’t that be enforced? But I think that would have been enforced before. As a matter of fact, in some states, although originally the courts held that any cohabitation without marriage was so against public policy that they wouldn’t even consider any settlement, in some of those states they have reversed themselves.

HEFFNER: Harriet, I was thinking that the only contract we used to know was the one in which you said, “I do, I do.” Thanks very much for joining me today, Harriet Pilpel.

And thanks too, to you in the audience. I hope that you will join us again on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”