Join me for some voyeurism; we will see people emotionally naked. The best place I have ever found to do this (on a casual basis) is in San Diego’s divorce court. What goes on there every day is far, far better than any television program: more raw, more comical, more poignant than anything anyone ever experienced sitting in front of a picture screen. In the real divorce court, you see people who, often not long ago. were making love to each other, who beamed and stood up in public to declare their undying mutual commitment and yet somehow have wound up in this outpost of civilization, where we can gawk at them, where one and all can watch their lies and their mutual loathing exposed.
Wait, you protest. Why intrude on this private misery? But here — by definition — the pain is no longer private. Most people who get divorced in San Diego County don’t have to make a physical appearance in court. They work things out, keep their heartaches to themselves. Those who come to divorce court are those whom reasonableness has failed — and thus are driven to these chambers crowded with lawyers and clerks and bailiffs and mere spectators (anyone over eighteen gets in, no questions asked). Secondly, a visit to divorce court provides this morality lesson: once having experienced it, you never, ever want what’s happening to these poor souls to happen to you.
Even most judges can't stand this work, according to Thomas Murphy. “So often you’re dealing with issues that have no clear answer or no answer at all,” he says. “Not only are you dealing with an emotional disaster, it’s a financial disaster as well.” And yet Murphy loves this stuff. For a dozen years, he worked as a divorce attorney, in the process becoming one of the first “certified family law specialists” in the county.
He was named municipal court judge in El Cajon in 1980, then rose to the Superior Court in 1985. He immediately made it clear he wanted to work with domestic cases; now he supervises San Diego County’s family law courts, and he’s known statewide for his talents. (A week and a half ago, the state bar association named him “Family Law Judge of the Year.”) At fifty-one, Murphy is in his prime, a trim, broad-shouldered man who wears impeccably tailored suits, walks tall, works energetically, has a droll, charming wit. Draped in the black robe, he looks aristocratic and fearsome, but his speech is down-to-earth and direct.
It’s a recent Monday morning in his courtroom. Department 20. A young woman stalks in, accompanied by her lawyer. Her name is Rachel, and she’s a twenty-six-year-old welder in a local shipyard. Her take-home pay amounts to more than $1500 a month. Five years ago, almost to the day, she married Norman, who is sitting at the table facing Murphy’s left. Rachel, on the right, looks disdainful. Norman looks numb. His attorney stands up and explains that they are here because the husband wants Murphy to order the couple into marriage counseling before any divorce be granted. “I truly believe this is a marriage that can be saved,” the lawyer asserts. He compares his client to a man who has eaten cholesterol all his life but has just suffered a mild heart attack and is willing to mend his ways. Even if the counseling eventually failed, “It would at least help them to be friends in the future,” the lawyer suggests.
Murphy ignores the attorney and poses a direct question to Norman. Does Norman think it would be fair, Murphy wants to know, if Murphy ordered Rachel to undergo marriage counseling with him, the judge? Norman, nonplussed, gulps and replies no. “Say I’m just fascinated by her,” Murphy persists. “That happens sometimes, they say. Say I take one look at her and fall madly in love.” Norman is squirming, and Murphy gently, sympathetically, launches into the lecture. “We live in a society today where if she says she doesn’t want me around her, she doesn’t have to have me.” Divorce now is granted on demand, and “you just have to recognize that for whatever reason, she is entitled to live her life as she sees fit. There’s nothing this court can do to make her love you. You’re going to have to win her some other way.” Murphy suggests writing to her. That prospect seems bleak as she stomps out of the courtroom, leaving her former mate, an unlikely Cyrano, to slink out behind her.
That was easy. Pitiful, perhaps, but straightforward. Murphy can’t legally require anyone to get counseling as a condition for divorce. “They can ask, but I’m not going to grant it.” But the next drama this morning is trickier, one of those rare cases in which an able-bodied husband is requesting alimony. His name is Bruce, her name is Elizabeth, and they were wed fifteen and a half years ago. They have one daughter and one son. “Irreconcilable differences” they say, are impelling them to divorce. Now she and the kids are living in the three-bedroom house in Chula Vista. Here’s the twist: Elizabeth’s father gave her (and her siblings) a company that owns five mobile home parks around the county. From it, thirty-five-year-old Elizabeth receives something on the order of $112,000 per year. Her forty-one-year-old husband, on the other hand, works as a supervisor for a construction company and grosses a mere $40,000 or so annually. Out of that, he’s paying her $400 a month for child support, and he’s residing in a “little” twelve- by fourteen-foot room in his aged grandmother’s garage.
This is a grim fate, Bruce’s attorney suggests. Instead his client wants to share the custody of the children with their mother, fifty-fifty, and to have Murphy order her to pay him some $1100 per month in “spousal support” so that he may live in the same style he enjoyed during the marriage. Bruce’s lawyer seems smart; he’s forceful and he argues, “If the roles were reversed. I’m sure the argument would be made by [her attorney] that she deserves the same standard of living” she had enjoyed as a wife.
But Murphy is having trouble understanding how Bruce can seriously contend he needs more money, living rent-free as he does and earning the salary he makes. “I’m sure that $40,000 a year is a lot more than most of the people in this courtroom here today make — except the attorneys.” (Some of the younger ones present laugh.) Briskly, Murphy announces that Bruce will henceforth pay no more child support, but neither will Elizabeth owe Bruce any alimony. The only bone the judge tosses to Bruce is that his disaffected spouse must contribute $1000 to Bruce’s heavy legal fees.
The issue of spousal support is the toughest one family law judges face, Murphy says unequivocally. Yet it’s just one of many awful questions that plague divorce law, a body of rules and cases that everyone seems to agree has grown extraordinarily more tangled in recent years. One consequence of that added complexity has been increased respectability for its legal practitioners. “For a long time, domestic lawyers were looked upon as the hacks,” Murphy says. He’s not the only person in this town who started his career (back in 1968) handling divorces because it was the only work he could get. But almost at once the field began changing. Today, the judge says, family lawyers make as much money and enjoy as much prestige as any corporate or personal-injury lawyer.
Murphy says another element that may have helped to improve the reputation of divorce lawyers was the revolutionary change in divorce law that began in 1970. Before then, a divorce could only be granted if one spouse or the other could convince a judge that some legal reason to dissolve the marriage existed — some “ground” such as adultery or “extreme mental cruelty.” Murphy recalls, “You’d go and ask for a divorce, and they’d say no.” He says that not uncommonly “you would hire investigators, who would try to catch the husband and the wife having affairs. They’d break into motel rooms, take pictures of them.... It was an awful thing. And the reason you’d want to do that is because the judge had to give more than fifty percent of the property to the ‘innocent spouse.’ ” In the effort to paint one spouse as being “guiltier” than the other, “the courts would sit and listen to whether or not she was a good cook, whether or not she was having an affair with her boss.” The most common resolution of such bitter confrontations was for the wife to be awarded not only custody of the children, but also to retain the family residence.
It’s not surprising that talk of reform came first to California. As early as 1960, the ratio of divorces to marriages was forty-seven percent in California (compared to just twenty-six percent elsewhere in the United States). And by the early 1960s, the national divorce rate had begun to climb. Certain divorces were inevitable, argued people in California, and the parties in them should not be subjected to the hateful trauma that so-called fault-based divorce made necessary. Throughout that eventful decade, the arguments here escalated and culminated in the California Family Law Act of 1970. It turned the age-old rules of domestic relationships upside down.
That law for the first time made possible “no-fault” divorce (a model that since has been adopted by almost every state in the nation). Suddenly, marriages had to be terminated whenever either one of the spouses wanted to do so. The only “reason” he or she had to cite was the formulaic “irreconcilable differences” — differences one needed only assert (rather than prove). The law also sought to toss out traditional assumptions about marital roles and responsibilities, such as the notion that women had primary responsibility for the children, while men carried the burden of supporting the wife and kids. Instead such concepts as “the best interests of the children” and the ability of both ex-spouses to work and support themselves and their offspring were to be considered in making decisions about alimony and child support and custody. Finally, since the law was attempting to purge the notions of guilt and innocence from divorce court, divorce judges were required by the new law to divide all the couple’s property evenly (rather than giving more than half to the “innocent” party as the old system had required). Men and women in the brave new world of no-fault divorce were to walk away from their mistaken troths equally and amicably, the reformers imagined.
Today you can sit in Murphy’s courtroom for hours without hearing anyone breathe a word of infidelity. Instead couples squabble endlessly over such questions as what constitutes the “property” to be divided. What does he or she really earn, and what are their true expenses? What’s the best way to split one child into two separate lives? Sometimes the couples are brisk and businesslike — they’re the ones who thought they would fight to the bitter end, then wised up when they realized they were about to let a total stranger decide their most intimate affairs. At the last minute, they settle between themselves, and Murphy need only give their decision an official seal of approval. Then there are other couples like Sarah and Robert, married November 29, 1985, and standing before Murphy just one year, eight months, and twenty-eight days later, feeling so angry that if one spat at the other, it would surprise no one.
Once, they must have made a lovely couple, a couple you could use as a model in some ad to sell cruise-ship vacations. She’s slim and feminine in a flowered summer dress, her curly blond hair falling to her shoulders. He runs his own small business, a landscaping company. Twenty-eight years old, he’s bearded but businesslike in a dark blue blazer and conservative tie. Six months after they were married, a little girl was born. It is principally over her that Sarah and Robert are battling, though their hostility slops over and messes up other issues. A few weeks ago, they had devised this wacky arrangement for Robert to see his daughter: Every other weekend, he was to come to Sarah’s home and stay from 6:00 p.m. Friday to noon Saturday (sleeping on the couch or the floor). In addition, he was to be permitted visits from 5:00 to 7:00 p.m. every Tuesday and Thursday, and for up to three hours every Monday, Wednesday, and Friday between 8:00 a.m. and 5:00 p.m. But now Sarah is alleging that he has tried to stay longer; she even phoned the cops once to have him removed. He has been taking her things, she says, rummaging through her personal belongings and scattering them around her home. In the courtroom, Sarah’s attorney waves a photograph for Murphy’s edification. “Her house was literally trashed, your honor!”
“Your honor, we’d like to show you photos of how she left the house,” Robert’s attorney fires back. “She left it in worse shape than when she came back.”
But the issue is not Sarah’s prowess as a housekeeper. The wife is asking that Robert be barred from her house; that he instead pick up his daughter at the Carl’s Jr. restaurant on the corner of Burgener Boulevard and Field Street and be allowed no more overnight visits. She also, vehemently, adamantly, wants the return of six coffee cups of hers. “He has heirlooms!” Sarah’s attorney cries. “Family heirlooms!”
Robert himself speaks up, his voice heavy with rancor, that “it seems illogical to pick up your daughter at a fast-food restaurant.” Besides, he doesn’t know what Carl’s Jr. she’s talking about.
“On Burgener,” Murphy says.
“Burgener and Field,” Sarah’s lawyer appends.
“You know it?” Robert’s attorney asks the judge, surprised.
Murphy asks how much each lawyer is charging. It turns out that Sarah and Robert together are spending close to $250 per hour on this idiotic bickering. “But if he’s taking her coffee cups, I can understand how that’s pulling her chain,” Murphy says, sarcastically. His tone turns fierce. “This whole case is going to be settled today." The four combatants will go out into the hall and hash things out. That’s an order; they dutifully file out of the room.
Next Murphy fixes his attention on a man who is desperate to stop his ex-wife from moving to San Francisco with their eight-year-old son. This case has been officially examined many times before; orders for the move have been approved, but the man can’t bear it. He tells Murphy that new facts have emerged. He has discovered, for example, that his wife “performed surgery” on the son’s head “against doctor’s orders.” He says he’s also learned that the son is being punished with school work. “Our son loves school!” he exclaims, adding that the boy himself would prefer to remain in San Diego. Since the wife is on her way from Alpine, Murphy says they’ll await her arrival then discuss the matter further.
More cases flash by. One of them brings a middle-aged, not-very-attractive woman before the bench. She wants Murphy to annul the marriage that took place in May of 1986 between her and a Mexican man. Three months later, they separated. But nine months and five days after the wedding, a little boy was born. Murphy points out that an annulment would make her son “the child of a nonmarital relationship.” Why would she choose to bastardize her offspring?
Her concentrated hatred for the ex-husband is transparent. After the wedding, he had laughed at her, revealed that the only reason he married her was to win American citizenship. Why should her son bear his name? “Denied,” Murphy says curtly. He doesn’t approve of her reason. But her attorney springs to his feet and interjects that the ex-husband is being sought by the district attorney’s office and the San Diego Police Department’s child-abuse squad. He’s threatened the woman, who is about to move to Houston.
“How can an annulment do any good?” the judge mutters. But worn down, he changes his mind and grants it, ordering a letter to be written to the immigration service advising it of what has happened.
Another woman stands before him; this one also lived with her estranged husband for only three months. But she is white-haired and elderly, “a lady of genteel poverty,” in the words of her attorney. Her problem is basic. Before marrying this past February, she was living in a subsidized downtown apartment where she had paid only $175 per month. She naturally vacated that apartment when she married, but since leaving her seventy-eight-year-old husband, she has been forced to move into the Maryland Hotel, where rent now costs her $600 a month — an impossible bite from her net monthly income of $666. Though she has applied for another subsidized apartment, she faces a wait of at least a year, and during that period she thinks her fairly well off husband should pay her $425 a month in alimony.
Why did these two old people — one absent from the courtroom — fall in love? What happened between them in their ninety-day union? We spectators only get the vaguest glimpses of an answer. The old man in May suffered a stroke, we hear, and subsequently threatened to kill his bride. She in turn is being accused of looting money from his bank accounts when she was acting as his temporary conservator. Murphy orders the entire matter to wait a month, when he’ll have more of the financial facts of the case before him.
And now Sarah and Robert are back, having resolved their warfare over the coffee cups. Unfortunately, they still can’t agree on who should pay for the lawyers — nor upon how Robert should be permitted to visit the daughter.
“Fine,” Murphy responds. “Go back and talk some more.”
But when they return again a half-hour later, they still haven’t been able to agree. Even their attorneys look shamefaced. Now more dirt emerges; Sarah says Robert has a drug problem. In a tremulous voice, she tells Murphy that she also doesn’t want her daughter sleeping at her ex-husband s apartment because “I just really feel she’s too young to go to a different place.”
Murphy is trying to be patient. “I recognize that your buttons are being pushed by him, and I suspect his are by you.” But does she realize that just sixty days before — before they separated — she had no problem leaving her child with its father? The judge continues, “I suspect that if he’s stupid enough to have a substance-abuse problem, he does not do that when the child is there.”
As he talks, Murphy’s tone of reasonableness subtly evaporates, replaced by that of the stern father, irritated beyond reason. Do Sarah and Robert realize that they’ve created a visitation schedule “that almost requires that you get married again? There are multitudes, multitudes of problems!” Abruptly, Murphy announces that Robert will be allowed to have his daughter overnight, but he will have to pay $500 of Sarah’s attorney’s fees. The judge is not quite finished with the two of them, however. “Come down here and watch, and you’ll see that two or three times a week, we put people in jail.” He will incarcerate them, too, if they try to flout the court orders. He has found, Murphy says, that prison produces the most dramatic, most cathartic effect on decent people — people like them. “Your present visitation schedule is doomed to failure,” he predicts flatly. The couple will find themselves spending a thousand dollars a month on lawyers. Face it, he tells them, “You’re divorced now.” But if they continue battling, he promises them that in twelve or thirteen years, their daughter will be down in juvenile court, using drugs, and probably with a child of her own. “So just keep it up!“ he says curtly, dismissing them. "I'll be here.”
Later, away from the courtroom and out of his somber robe, Murphy sounds much more tolerant of the likes of Sarah and Robert. Most of the people who wind up in divorce court are essentially good human beings. “Almost always you’re dealing with two decent people who just can’t get along together.” If they seem irrational, you have to bear in mind how devastating divorce is he says. “It’s very common when people are going through a divorce for them to act in ways they would not normally act.” They’ll get arrested for drunk driving or start treating their children differently, for example. Murphy says because he understands this, he’s perhaps unusually willing to let people speak informally in his courtroom, to let them air some of their despair. “Say today you learn that your best girlfriend is having an ongoing, hot, heavy affair with your husband. You’d be devastated. And then two days later, you’re in a courtroom, and he and she are sitting there, holding hands. He’s so stupid that he does that. I mean, that’s what people do. You’re sitting there, and some judge says, ‘I want you to be reasonable.’ And you feel, ‘I don’t want to be reasonable! I can’t believe this is happening! ’ People need to shout out sometimes and say things.”
There is one category of cases heard regularly in the family law courts for which Murphy’s tolerance seems to vanish. These are the cases in which the district attorney’s office charges that parents (invariably men) are failing to provide child support that they should be paying. These cases often involve women who are taking public aid, even though the able-bodied fathers of their children could help out. Many times they also involve men who deny that a needy child is theirs.
There’s something particularly seedy about these paternity cases. They transport us staring spectators right into the beds of the former lovers. Watch this one: first the assistant district attorney calls the woman to the stand. In this particular case, she is Hispanic with lush, glossy hair. She’s wearing a cream-colored silken dress, pale white stockings, and flat-heeled shoes. She could be ready to take her first Holy Communion, but instead she’s being asked about the illegitimate child to which she gave birth this past July 20. The baby girl weighed eight pounds, the woman testifies. In May of 1986, she met the man who she claims fathered the infant.
“Did you have sexual relations with Mr. Lopez in October of 1986?” the assistant D.A. asks.
“Yes,” the mother whispers.
“Did you have sexual relations with him in November of 1986?”
“How about in September of 1986?’’
“Were you having sexual relations with anyone else at that time?” She swears not. When asked if he ever acknowledged that he was the father, she answers that he said so at the time she went in for her pregnancy test and that later, he’d told her not to worry, that he would help her financially.
Now it’s his turn. He’s short, slightly plump, with a hint of the dandy about him. His dark beard and mustache are neatly trimmed, and his eyes are framed by gold-rimmed glasses. He claims he last saw her in September of 1986 and that he further never acknowledged the child as being his daughter. But Murphy rules that her brief testimony has established a prima facie case of paternity. To further determine the truth in this case — as in most such cases — he orders the man to undergo blood testing. These tests can establish, with up to ninety-nine percent probability, when a man fathers a child and can rule out definitively those who are not fathers of the children in question. But Murphy no longer routinely waits for the test results before making alleged fathers contribute to the support of their offspring. These days he orders payment as soon as the case comes to court — and then refunds the money in those rare cases where the tests establish the man’s innocence. In this particular case, it’s announced that the man, a postal employee, has been married for fifteen years and already has five children (ages three through thirteen) from that marriage. At this, an audible gasp runs through the courtroom. Murphy is impassive; he tells the man to pay the county one hundred dollars a month.
You want to say to people. ‘Don't I you understand how children get there?’ ” Murphy tells me, on another occasion. He and his wife of twenty-two years have two children, a boy who’s about to enter college and a girl who’s now a junior at Valhalla High School. He often refers to them in his courtroom. They sound like high achievers, children to be proud of, and Murphy says he always felt an immense moral responsibility, as their father, to do all he could to help bring them up properly. It's simply not fair that some of us should not feel that same responsibility, he believes. “It is a disgrace that people can have children and then just give up the responsibility of raising them; that they can say, through selfishness, ‘I want to do my new life now. I have created this child, but I just want to forget it, and I think that society should pay for that child, or some woman should pay for that child, or some man, and I want to go do my own thing.’"
For that reason, he agrees unreservedly with those who criticize the large numbers of men who.fail to make their required child-support payments. Murphy thinks all such payments should be routinely deducted from wage-earners’ paychecks. The law is close to requiring that in California now, he says, though “it doesn’t happen as often as it should.... It’s still perceived by many employees as being something to be ashamed of." Instead, people should think of it like income tax withholdings, Murphy suggests. “I mean, the federal government won’t let us promise that we’ll pay that (tax] money.”
Murphy acknowledges that his attitude toward male child-support obligations has evolved over the years; it’s an evolution that has affected a number of divorce judges. Years ago, “We’d start out by asking how much he needed to live on,” and then child support would be ordered out of the leftovers. “We used to make child-support orders of $100 or $125 a month, and the childcare costs would be $200, and we’d say, ‘Well, that’s just unfortunate.’ ” Then a couple of years ago, a number of social critics began drawing widespread attention to just how low support orders were statewide. “I became won over by the group that says we’ve really got to look specifically and closely at that child’s needs,” Murphy says. After all, “The custodial parent is the one who really ends up on the short end. Always.” Despite the gender-neutralizing aims of the 1970 Family Law Act, the vast majority of custodial parents are still women, and commonly nowadays those women have to work full time and take care of those kids, according to Murphy.
“That’s a guarantee of two jobs, right there. So you work all day and come home, and you’ve got these kids. Show me kids that aren’t selfish; there aren’t too many. They’re asking from you all the time, and in general that person is giving, giving, giving all the time. It’s tough on that parent.” So Murphy says, “I’ve tried to make the husbands recognize — to the extent anybody recognizes what’s going on in those courts — that their number-one priority is their kids.” Murphy thinks his child-support orders are somewhat higher than those granted by his fellow divorce judges in San Diego. But one factor tends to keep the child-support award decisions roughly comparable. Within the past few years, child-support guidelines have been adopted throughout California. These take the form of complex tables that suggest what the payments should be, depending upon how much money each ex-spouse is making, which one has the children, how many children there are, and other factors. One thing Murphy dislikes about these tables is that people tend to expect to receive what the formula merely suggests. “There a strong tendency on the part of the public and the lawyers and the judges to use them without any discretion.’’ But despite that problem, he says having some guidelines is inarguably better than not having any. It’s a point he emphasized dramatically at a family-law seminar held for local divorce lawyers one recent Saturday morning at the Catamaran Hotel.
Murphy was there to talk about the issue of spousal support — an area where no guidelines exist. “Since the 1850s, California courts have been making permanent spousal-support awards, and yet we do not have one decision, we do not have one instance of case law that tells us what is the purpose of permanent spousal support.” To illustrate just what quandaries that can create, he ventured an experiment that involved his two judicial colleagues in the family law courts, Thomas Ashworth and Anthony Joseph, both of whom were also present at the seminar. In rapid fashion, Murphy outlined the facts in seven hypothetical alimony cases. In each he revealed what he probably would rule, and then he asked his fellow judges what their decisions would be.
There was this case, for example. A three-year marriage breaks up when the wife is earning $1700 per month. The husband hasn’t worked throughout the marriage but instead has attended college. Should the husband get alimony?
Murphy: “In my court, probably not.” Maybe that revealed a little sexual bias on his part, he admitted.
Ashworth: “I might possibly give him a few months,” but very reluctantly, he adds. And he wouldn’t expect the ex-wife to support the man during the months when school was not in session.
Joseph: “I would certainly allow a person to complete their education.” So he’d order her to pay spousal support, though he’d want to weigh in his decision whether children were involved and what the husband’s job prospects were.
Here was another example: A husband and wife are separated after four years of marriage. The husband is fifty-seven; the wife is fifty-three. Both were married once before. He earns $4000 per month, but she was a homemaker during the marriage, has no employable skills, and is in poor health. Murphy asked, should she get alimony? If so, how much and for how long?
“These are awful cases,” Ashworth moaned. But they arise all the time, he acknowledged. In this particular instance, Ashworth felt much depended on whether the wife had been receiving alimony from her first husband up until her remarriage. If she had, and the second husband knew that she was giving this up to marry him, then Ashworth would tend to grant her alimony for an open-ended time, he said. If, on the other hand, she had merely been struggling along on her own resources between the two marriages, he would only order alimony for two or three years, “maybe $1200 a month.” Joseph, in contrast, said he would give $1200 for an indefinite period of time, no matter what the circumstances. Murphy said he felt he would order perhaps $700 a month for a maximum of three years.
Is this fair? Murphy asked the assembled lawyers. “Is it fair that you go into Tom Ashworth’s department and get a reasonable spousal-support award for a reasonable amount of time, and you go into Tony Joseph’s department and get a high spousal-support award forever, and in my court you get support for a few weeks?’’ He answered his own question. “I think it’s real unfair” But until we clarify the rationale behind spousal support and adopt some guidelines, such discrepancies will be the norm. Murphy suggested.
In the absence of guidelines, “We can do just about what we want,” Murphy told me on another occasion. “You use your own philosophy, I guess.” He mentions one ticklish decision he made in this area that is now up on appeal. It involved a six-year marriage in the course of which the wife was permanently injured. The circumstances of that injury were rather cloudy; she and her husband had been drinking at a bar when it occurred. Upon the divorce, the husband had been ordered to support her, and he had done so for around five years, “almost the full length of the marriage.” Then the husband had come before Murphy, asking to be relieved of further financial obligations to the woman. Murphy says he thought at the time it was an “impossible” case, but he continued the support for one additional year. After that year, however, the case had come back to him again, and he says he finally thought, “Someone has to make a decision. I said, ‘Support is terminated. It is the obligation of society to carry this woman from this point on.’ ”
Someone has to make these decisions, but Murphy gives the impression that it’s a lot more fun to toss off the questions than to decide what the answers to them should be. Should child-support obligations end. as they have historically, when the children reach eighteen? (Murphy says a California state legislator has proposed a law that would require parents to contribute to the costs of a college education if they would have shouldered those costs had there been no divorce.) But do we want to open the doors for children to sue their parents for nonpayment of such support? “Do we want to place that power in the kids? What school do they go to? What courses do they take?” the judge asks.
Murphy says he had to make a decision in one case in which the father had contractually agreed to send his son to college but hadn’t explicitly spelled out all the attendant arrangements. Though the son went to UCSD and the mother was a San Diego resident, neither wanted to live together. Instead, the son wanted to rent a Del Mar apartment costing $800 a month. “And so I had to decide whether or not included in that education was a Del Mar apartment, the use of a vehicle. Again, do we want to give kids that age the power to allow that kind of destruction to go on in a family?”
He tosses off another, even broader, more persistent dilemma: When one spouse’s earning capacity increases during the marriage, is that an “asset” of which the other spouse should receive half at the time of divorce? One classic example is the woman who works to put her husband through medical school. Say this couple divorces after ten years, just when his earnings are beginning to take off. During the marriage, he gained his education and his increased earning ability. “Are we going to say that when he walks out of that divorce, she’ll get his medical building, their house, and he’ll owe her another $200,000 to $300,000 and also be ordered to pay her support? Does that make any sense?” Murphy asks.
What about the woman who shoulders virtually all the burdens of housekeeping and child care so that her husband can develop his career? In the divorce court, she’ll argue that she sacrificed her own career because she expected to share in her husband’s future. But what if she was a crummy housekeeper? Is that relevant? Suppose she chose homemaking because she was too lazy to get any other job. Or what if she became a superlative tennis player while her husband worked? Should her tennis skills also, somehow, become a divisible asset? “We go back to the very thing that we tried to get away from when we took away the fault,” Murphy says. “And do we want to bring that kind of junk up in divorces, again?” In his mind there's no doubt at all. "No, we don't."
I certainly can’t imagine wanting to make the system any more problematic than it is already. But Murphy tells me not to give the wrong impression of the family-law courts. Emotional questions come up every day, he says. But the really tough questions — “questions in which you have to make a decision, but there is no ‘answer’ ” — confront each divorce judge only once or twice a week, he says.
And in fairness, the casual observer also can catch flashes of breathtaking clarity. One recent trial, for example, ostensibly concentrated on the ex-husband’s child-support obligations, but it also touched upon the ex-wife’s relationship with her lawyer, for whom she also happened to work. The question of their relationship was relevant, since she was asking Murphy to order her ex-husband to pay some $11,000 in attorney’s fees. During an earlier session, she had been asked flat out if she was having an affair with this man. Although she said no, at the trial Murphy finally made clear his assessment of her answer. “I saw the lady testify on the witness stand ,” the judge said drily. “I don’t believe her.” Besides, Murphy asked the attorney, ‘‘Even if you’re not having an emotional or a sexual relationship with her, do you really think it’s appropriate for you [as her employer] to represent her?” The lawyer blustered that he thought it was; every single penny of the $11,000 had been spent on doing things that were simply ‘‘good lawyering,” he claimed. But Murphy, unmoved, ordered each side to pay for their own legal costs.
Earlier that morning, I watched Murphy in an even blunter, more down-to-earth exchange with a young divorcing couple. They had two kids; the wife was moving with them to Phoenix. ‘‘You understand if you can’t reach an agreement today. I’ll make an arbitrary decision for you,” the judge warned them sternly. ‘‘You have to live with what I say. Now, who do you think can make a better decision about visitation — you or me? I strongly suggest you don't leave it up to me.”
First, they tackled the matter of child support, where the husband thought $300 per month would be reasonable. The wife responded that he had been paying $404, so she thought that amount should continue.
‘‘Compromise?” Murphy offered. ‘‘Split it down the middle? Is $175 per child okay?” Swiftly the pair agreed. For resolving their $7000 worth of debts, Murphy suggested that perhaps bankruptcy might be ‘‘the only answer.” That left the question of visiting the children. The couple was willing to try a joint legal custody in which the two children would move to Phoenix with their mother, but the father would get reasonable visitation. ‘‘You know what it is to be reasonable?” Murphy pressed them. “That means you [the wife] are in town. You call him and say [conversationally], ‘Hey, Cliff, you want to see the kids?’ Or he’s in Phoenix and he calls to let you know. You say [disappointed but resigned], ‘Oh God, I’ve got plans. We were going to go to Wet and Wild this weekend.’ But you change those plans. You say you’ll go another time.” The lecture concluded, the judge offered, “Good luck to you both. And be reasonable with each other.” With everything so neatly resolved, only the husband was confused. He hadn’t grasped that his divorce had just been finalized, and he asked humbly, “How soon will we know, your honor?”
“You’re done,” Murphy told him. “Want to get married again?”
“Makes sense,” said Murphy with a straight face.
Had justice been served? “Justice is what our legislature says justice is,” Murphy told me one day. “And justice in most cases is not what the parties perceive. If you’ve been an abused woman, your idea of justice is to be repaid for that abuse. If you’re a husband whose wife has run away with another man, your idea of justice is, you should get the children and she should be stoned.” Murphy says he’s come to think of his role as a judge less as a dispenser of some abstraction called Justice and more as one whose principal job is to end conflicts. “On many occasions — innumerable occasions — we don’t know what the real truth is.
One side says one thing, another side says another.” Even being given a few weeks to make a decision wouldn’t make any difference. “We might have a better idea of who was being honest and dishonest or of how much money that person was making, but unless we in effect lived with that person for a few months, there’s no way we could really know for sure. So we end controversy, with the information we’ve got. And we do it, hopefully, without anyone shooting anyone.” □
The names and occupations of some of the husbands and wives in the above proceedings have been changed to protect their privacy.