Select Page

Family Law
Rutgers University, Newark School of Law
Perry, Twila L.


I.            Introduction to Family Law
a.        There is a struggle between legal form and substance in defining “Family”
b.      5 trends in Family Law:
i.      The movement from public to private ordering (enforcing premarital and separation contracts; counter-trend of increased gov’t intervention to protect victims of domestic violence)
ii.      The expanding role of fed gov’t through constitutional & statutory law
iii.      The broadened commitment to equality
iv.      The burgeoning number of transnational issues presented by families with dual citizenship
v.      Increased procedural innovations (ex. mediation, arbitration, collaborative divorce)
c.       The Modern American Family
i.      1 in 3 marriages end in divorce (although declining)
ii.      The U.S. has higher rates of marriages, remarriage, and divorce than most other nations.
iii.      The State of Marriage and the Family Today
1.      Covenant Marriage (available in some states)
a.       Ex. In Arkansas, under the covenant marriage, couples agreed to undergo premarital counseling, will attend marriage counseling before splitting up, and neither spouse could obtain a quick divorce based on “no fault” grounds (only allowed for serious transgression). Must wait 2 yrs. otherwise
2.      Factors for divorce: People in high divorce states tend to have less education, marry early, and not Catholic.
iv.      The American Difference
1.      Americans marry and cohabit for the 1st time sooner than people in most other western nations
2.      Higher proportion of Americans will marry at some point in their lives
3.      Marriages and cohabiting relationships are far more fragile
4.      Children born to married or cohabiting parents are more likely to see breakups
5.      American parents are more likely to re-partner. Thus, children are more likely to have another adult partner enter their household.
6.      American women become parents at an earlier age
v.      Rise of individualism
1.      Western society has adopted an individualistic outlook on family and personal life
2.      Two types of individualism
a.       Utilitarian individualism: the self-reliant, independent entrepreneur pursuing material success
b.      Expressive individualism: a view of life that emphasizes the development of one’s sense of self, the pursuit of emotional satisfaction, and the expression of one’s feelings.
3.      Notes
a.       Marriages are now more strongly linked to education (College graduated more likely to get married)
b.      Racial differences (Blacks less likely to get married)
c.       Education correlates with the age people marry
d.      There is a link between social inequality and marriage. Low and moderate-income Americans increasingly have multiple partnerships.
d.      Legal Form and Family (49-59)
i.      The Channeling Function in Family Law (Schneider)
1.      The law develops and supports social institutions that are thought to serve desirable ends. 
2.      This idea is that a basic purpose of family law is to support fundamental social institutions, like marriage and parenthood, and to steer people into participating in them.
3.      The channeling function does not require people to use these social institutions, although it may offer incentives/disincentives. It is their very presence (social currency) and governmental support they receive which combine to make it seem reasonable and natural for people to use them—people are channeled into them. 49-50
4.      Legislature posits a normative model of marriage or parent hood with several key characteristics (models are not reality but simply describe ideals which have retained allegiance in American society).
a.       Marriage: normative model = monogamous, heterosexual, permanent. It rests on love. H/w are to treat each other affectionately, considerately, and fairly. Should be animated by mutual concern and willing to sacrifice for each other.
b.      Parenthood: normative model= should be married to each other, preferably biological parents, have authority over the CH & can make decisions for them, expected to love their Ch and be affectionate, considerate & fair, be supportive and nurturing. Should provide stable home, staying married.
5.      Question is how is the law interpreted as supporting these two institutions and channeling people into them? 50
a.       Family law is interpreted to set framework of rules to promote institute of marriage:
i.      Sustain the model of marriage by writing standards into it prohibiting polygamous, incestuous, and homosexual unions
ii.      Improve marital stability by inhibiting divorce
iii.      Improve marital behavior by imposing obligations during marriage:
1.      Direct: duty of support
2.      Indirect:
a.       invented special categories of property to reflect and reinforce the special relationship of marriage.
b.      Sets standards through divorce
iv.      Marital property law implicitly sets standards for the financial conduct of spouses

ion of singleness (divorced v. single status)
c.       Channeling function doesn’t primarily use direct legal coercion. People are not forced to marry, or to have children.  The function forms and reinforces institutions, which have significant social support and come to seem so natural that people use them almost unreflectively. It relies centrally but not exclusively on social approval of the institution on social rewards for its use and social disfavor of its alternatives.
7.      What purpose does the Channeling function serve? The law doesn’t just create a shell of an institution, it builds institutions with norms.
a.       Channeling Institutions spare people of having to invent forms of family life de novo. 52
i.      Institution of marriage helps people to plan for the future even before becoming engaged and to reach easier understandings w/their partners about their married lives.
ii.      Helps those who deal w/married couples
1.      Know that when you’re inviting them to something, its including both
2.      Know not to contemplate an intimate relationship with  someone who is wearing a wedding ring
b.      Criticisms of the function: it violates the visions of state neutrality. 53
i.      Response:
1.      One can’t abolish the function in family law b/c its goals are so central they aren’t likely to be abandoned.
2.      As long as we pursue the goals of protective, arbitral and facilitative functions, then we will be creating, building on and shaping social institutions and channeling people into them.
3.      Only way to change function is to expand family law to be like contract law.  But this wouldn’t succeed b/c family law involves children, who cannot make contracts. It would make another institution regardless b/c contract law has own elements.
4.      Therefore, channeling cannot be escaped. It arises b/c we are social beings whose relations w/those around us shape institutions that in turn shape us. And b/c we are not perfect, we need these institutions to protect ourselves from each other. It is a social tool and one of the ways the law tries to soften the harshness of life.