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

Family Law
January 7, 2008

How does the state regulate intimate relationships:
– Marriage
o What is society saying about sex in relation to marriage etc.? (Adultery as well.)
o Societal legal benefits. (Baker v. State, VA statues giving married persons legal rights such as right to sue for loss of consortium.) . . . what are the negatives?
§ State and private benefits: i.e.
· Immigration status, social security
o Religion vs. marriage.
o Power & Gender.
§ Emotional support
§ Commitment
o Culture/Race/Ethnicity/Class
– co-habitation (two persons of opposite gender.)
– co-habitation (persons of the same gender, relationships) – and those that are “less than co-habitation.”

– Three Periods of family law (Somewhat chronological, and overlapping.)
o 1. Traditional Law Period
§ The state had a monopoly on:
· determining the terms and conditions of marriage
· allocating the benefits and burdens at dissolution of marriage.
· State wants to protect core values
· Keeping control of an internal social order
§ State controlled interpersonal relationships.
· Power of the state came from police power. (Power to protect public welfare, health etc.)
§ Entry into marriage:
· State controls this stringently. Terms on: kind ship of relationship, race, gender, number of spouses, etc.
· Period was characterized by discrimination vs. women. Spousal roles were strictly defined by the law.
o Husband had duty of financial support, wife had duty of services to husband. (Gender Defined.)
o Husband was only spouse able to contract, women couldn’t hold property, sue etc. Wife had no legal ability to deny sex to her husband.
o Husband had right to control community property and right to control wife’s earnings.
o K’s between spouses were almost non-existent. (Aka, K’s dealing w/ divorce. No such thing as anti-nuptial agreements.)
o Needed “fault” grounds for divorce. Adultery need be proven, also cruelty, and abandonment. The court ultimately decided whether the party had proved their grounds.
§ Two Criterion:
· Fault
· Need
· Children:
o Assumption that families were biological, children were considered the property of the fathers. Custody went automatically to the fathers. (Later moved to a maternal preference for custody. Based on stereotypical views of women and children.)
§ 1850’s: Married women’s property acts:
· Gave women more rights than they had before, (State Laws.)
· Women could now acquire, own and transfer property, make K’s, sue, keep their earnings, etc.
§ Cohabitation: (not approved of during the traditional law period.)
· No real remedies at the end of the relationship. Actually there were fornication statutes that subject those unmarried co-habitants to punitive sanctions.
· (Exception) – CL Marriage. Very few states recognize this, 11.
o 2. Transition/Constitutional Law Period
§ Constitutional challenges to state laws/state action.
§ Question: Are the constitutional rights of individuals being violated?
§ Equal protection clause: 14th Amend. Important.
· Griswold v. Conn., Roe v. Wade etc.
§ State gave up the monopoly over the terms of dissolution of marriage.
· Moved toward “No-fault” divorce. (Decision to marry became more of a private decision.) Rep’d a change in societies values.
· Legal disabilities of children born outside of marriage – were done away with.
· Different custody rights/ adoption. Spousal Torts immunities are done away with.
§ Some things didn’t change:
· Not until late 70’s, 80’s did the martial rape exception become struck down.
· In 1981, A state couldn’t constitutionally have a law that gave the husband legal control to community property.
o 3. Private Ordering Contract Period
§ “Private Ordering Models” – More Autonomy (For persons to structure their personal relationships.) – Period of transition and “confusion.”
§ Law struggles to keep up w/ rapid change in structure of society.
§ Much more discussion of K’s in the family:
· Marital, anti-nuptial
· Think about what analogies can be drawn between divorce and no fault/tort. (Divorce to an accident, didn’t expect it, but it occurred anyway.) Family law should be geared toward planning for “economic loss.”
§ Support and services are still considered the legal duties of spouses
· Recently, they have been uncoupled from gender. What are the implications of this?
§ Mediation introduced
· Custody/divorce
· Parties try to reach private d

r daily family services.
à No real definition of family, depends on the legal definition between jurisdictions.
– law might have particular goals/purposes to fulfill by providing definitions of family.
– Advantages of “administrative convenience.”
Chapter 1, two points of view:
– Complexities of family relationships
o Organizing families around the idea of “care giving.”
o Inevitable dependency, is where the benefits of family should flow from.
§ What about those interdependent in all ways, but not having sex?
· What does the role of sex play?
§ Dependent when born as child, need care givers.
§ Dependent elderly, who become inevitably dependent.
§ Handicap/sick persons ..
– Channeling function, the law essentially should shape people’s behavior into certain social structures.

January 14, 2008
– Will the law protect a particular relationship?
o Definition of family depends on what the circumstances are, and who is the subject of litigation.
– Oneida Community:
o Whether this idea constitutes a family? – do the have the “indicia,” do they have interdependent housekeeping/cooking arrangements?
o Context in which litigation takes place is relevant to whether they are a “family” or not.
o Relationship of people making decisions on an individual basis as opposed to as a ‘single’ unit.
– Economics:
o Support, from the state. Considered a negative as opposed to be “expected.”
o Property ownership within the family, joint ownership.

Henry Sumner Maine, Ancient Law: Debate, is marriage a status or a contract?
– Idea of progressive society moving away from status to a contract.
o Based more on private agreement
o Right/duties/obligations come from status, but within a K, the individuals determine those rights/duties/obligations.