Family Law in Transition

• DOI: 10.1177/0306624X8202600108
• Date: 01 January 1982
• Author: Ernest Rotenberg
• Published date: 01 January 1982
• Subject Matter: Articles

Family Law in Transition
Ernest Rotenberg*
A
WOMAN
in court asked me the other day, &dquo;Why should I stay
married?-I have a dog that growls, a fireplace that smokes, a
parrot that curses and a cat that stays out all night, so tell me, Why
do I need a husband?&dquo;
Had I been a judge in the 1800’s, I might have replied: &dquo;Because
marriage is an institution, the maintenance of which in its purity is
of deep concern to the public, ’For it is the foundation of the family
and of society, without which there would be neither civilization
nor progress’.&dquo; (Maynard v. Hill 8 s.ct. 723, 125 U.S. 190, 31 L Ed.
654 (1887).
As a present-day trial judge I might well conclude that the right
of personal privacy includes the right to have a menagerie, rather
than a marriage. (With all due respect to Roe v. Wade et seq.)
In 1948 I became a lawyer. During the past thirty-two years, the
practice and study of law has been my total commitment. Twenty-
five of those thirty-two years were spent as an active trial prac-
titioner, trying every type of case, also as an assistant district
attorney and as an assistant attorney general. Now, as I enter my
eighth year as a judge, it is apparent to me that those years have
been hectic, exciting and marked by dramatic changes in the law.
The changes are due primarily to a shift in the relative value
society accords to its structure, its institutions, and the private
individual. As shifts in the huge continental plates making up this
planet earth send tremors felt for miles, basic value shifts in society
send far-reaching tremors through our social institutions. The
tremors being felt in family law would rank high on a &dquo;Richter
scale of social upheaval.&dquo; The tremors have thrown family law into
a period of transition that affects both the law the courts are re-
quired to administer and the procedure by which the law is
administered.
The changes in procedure have been the least traumatic. The
Massachusetts Trial Court system was designed in the days when
Concord was one day’s ride north of Boston. Changing economic
factors and the transition in social mores increased the work load
till the system was bursting at the...