Select Page

Family Law
SUNY Buffalo Law School
Boucai, Michael

Family Law

Fall 2012

Professor Boucai

First Class

Thursday, September 06, 2012

3:01 PM


READINGS: Casebook pp. 217-­22(top); UBLearns Halley & Rittich, Critical Directions in Comparative Family Law


-Household = was an economic unit encompassing human reproduction, material production, and a complex array of legal relationships.

Ex: Slaves, indentured servants, and contract servants were as much a part of the household as husbands and wives.

Ex: Food wasn’t just cooked and eaten in the household, it was grown there. Threat was spun there. Cloth was woven there.


–Eventually, market modernization changed things.

>Productive work for pay moved out of the home.

>The law of master and servant–formerly part of the law of husband and wife and the law of parent and child–gradually dissolved.

–Only the husband and wife and the parent and child remained in the newly private, intimate, and affective space of the home.

>Whereas the dominant gender in the household had been male, the dominant gender in the family was female: patriarchy found a way to

establish a distinctive feminine domain by segregating it from and subordinating it to the masculine market.

-The Modern Household

–We consider a “household” to be a human association bounded through social negotiation and aimed at securing human reproduction, including reproduction

from day to day of its members as well as the production of new human beings.

–In liberal economic orders, it is an important source of social security.

–It may be either larger or smaller than the legally recognized family, may include non-family members, and may be made up by people with no recognized

family relationship to each other.

–All household members may live in the same residence or they may not.

–Households pool income and labor resources in that they allocate work responsibilities and income streams among household members.

>But they need not actually commit all their labor to the household or merge all their assets; household members may maintain separate property.

–Any one person may be a member of more than one household.

>The polygamous husband and the live-in nanny can be examples, but so can the child living in a university dormitory where students form some sort of

collective life involving economic dependency but return home for vacations.

–Defining the outer boundary of a household is ultimately arbitrary–does it include the grandfather who occasionally makes spontaneous gifts to his adult child

for the support of his grandchildren, or the employer who provides health insurance for a working spouse/parent and his legal family, for instance?

–Above all, the household is economic both in the sense that it has an internal economy that can be studied, and in the sense that it is continuous with the

market economy–including the informal economy…–in which it is inextricably embedded and with which it engages in myriad dynamic transactions.

II. Marriage as a Contract vs. Marriage as a Status

-For most of 20th century there was no family law. The law of husband & wife and parent & child existed together.

-Head of the household had the roles of husband, father, and master.

-Wife and child were comparably subservient to the head of the household.

-Critical category became marriage.

–Question was whether marriage was a contract or a status.

>It was a contract in the past but with the rise of formalism, free labor, and separate spheres in the late 19th century, it was increasingly considered a status.

–Contract law housed the will of the parties.


–Marriage law housed the will of the state.

>sentimentally, morally altruistic

III. Family Law Exceptionalism and Tiers of Family Law

Family Law Exceptionalism = understood as different from all other aspects of law

-2 Ideas

1 — The family itself is a unique social institution

2 — Family law is distinct from other types of law

-An alternative to the family is the household

–The household is an economic unit and can also include non-familial roommates.

–The household is continuous to the market.

-What could be bad about exceptionalizing family law?

–Families are different. Thus, the move to households as an alternative is more inclusive for non-traditional families.


-Fundamentals of Family Law

-Law that would be found back in the law of domestic relations

-Marriage and its alternatives: divorce, parental status, and parental rights and duties


-Explicit family-targeted provisions peppered throughout substantive legal regimes that seem to have no primary commitment to maintaining the distinctiveness of

the family

–Ex: welfare law often turns directly on the statuses of husband, wife, parent, and child

–Ex: Contract Law:

>Infant’s incapacity to contract

>Spousal duty to pay third-party suppliers of necessaries

–Ex: Property Law:

>Alienability (or not) of personal or joint property to non-family members

>Inalienability of real property via tenancy by the entirety

–Ex: Employment/Labor Law:

>Right/no-right to paid or unpaid dependent-care leave

–Ex: Pension Law:

>Survivors’ entitlements

–Ex: Welfare Law

>Welfare entitlements and social transfers that depend on total household income versus individual income

–Ex: Tax Law

>Joint filing and all its related rules Inheritance tax

–Ex: Immigration Law

>Family reunification rights/no-rights of citizens and legal immigrants


-Regimes that don’t talk about husbands, wives, etc. but do contribute to the way families live.

-The myriad legal regimes that contribute structurally but silently to the ways in which family life is lived and the household structured, sometimes intentionally,

sometimes in ways we could describe as functionally rational, sometimes in the mode of disparate impact or sheer accident or even perversely.


–occupancy limits in landlord/tenant law that give more or less protection to incumbents;

–employment rules that permit dismissal on the part of the employer “at will” or, by contrast, require employers to give notice to employees who are

dismissed without cause;

–rules that exclude household employees from the protective legislation governing workplaces or that craft special regimes governing such employees


-The wide range of informal norms that may substantially alter the impact of FL1, 2, and 3 and, in some cases, effectively “govern” the household

IV. 20th-Century Trends

a. Increasing uniformity across states; “federalization” of family law

b. Increasing legal interest in and state intrusion into the “private” sphere of the family

–but not total, family law still protects the privacy of family affairs as much as any other type of law

III. Increasing availability of private ordering of private/family/intimate life

–Doctrine of family privacy; see McGuire v. McGuire

–In Eisenstadt v. Baird, SCOTUS held that there is a right of the individual to be free from unwarranted gov’t intrusion in the intimate aspects of life (in

this case it was referring to right to use contraception).

–Decisions upholding constitutional right to same-sex marriage.

–Laws establishing no fault divorce in some states

d. Family Law Functionalism

–Law increasingly uses a functional definition of “family”

–Not who makes a family, but what makes a family.

>e.g. care, support, love, etc.

The General Support Obligation

-At common law, husband was required to support the wife, and he had the corresponding right to her “domestic service.”

-To enforce the support obligation, a wife might seek to force her husband to provide her with money or might use the “necessaries doctrine” to induce third parties

to extend credit to her.

Domestic Relations–important term

McGuire v. McGuire, 59 N.W.2d 336 (1953)

*Classic case exemplifying the doctrine of marital privacy for American students.

-The court held that Lydia McGuire could not get a court order mandating her husband to provide her with more than

subsistence support as long as the marital relation between them was legally intact.


1/3 of female same-sex households and more than 1/5 of male same-sex households include biological children under 18.

b. Possible Directions that Family Law is Heading Towards

i. Equivalence btw Cohabitation and Marriage

1. Many argue that marriage and cohabitation should be treated equally under the law.

a. But this approach denies that some couples might intentionally choose not to marry.

b. And it would have the law treat the 2 institutions similarly when social science data show that, when it comes to the well-being of children, cohabitation is on average much less stable and safe.

ii. Redefining Marriage as a Couple-Centered Bond

1. To accommodate same-sex couples, this approach redefines marriage as a gender-neutral union btw 2 persons.

a. So could no longer say that children need their mothers and fathers.

b. Conception of marriage would be refocused on the couple rather than the children.

iii. Disestablishment, or the Separation of Marriage and State

1. Many call for getting the state out of the marriage business.

a. But this approach denies the state’s legitimate and serious interest in marriage as our most important child-protecting social institution and as an institution that helps protect and sustain liberal democracy.

c. Demographic Considerations

i. Today, the marriage marked in the U.S. seems to be divided into three submarkets based on educational attainment.

1. Educational attainment increasingly predicts marital stability and happiness.

a. The decline in the divorce rate that began in the 1970s is limited to individuals with a 4-year college degree.

b. In contrast, the divorce rate for less education women is rising.

II. Functions of Family Law; Schneider, “The Channeling Function in Family Law”

a. Protective Function

i. State’s interest in protecting adult partners and children from abuse and of fostering children’s best interests.

ii. Also, protecting from economic harm (e.g., laws of property distribution upon family dissolution)

b. Facilitative Function

i. Helps people to arrange and live their lives in ways that they choose.

1. Family law does this by allowing people to enter into enforceable contracts and by validating their private choices.

c. Arbitral Function

i. Helps people resolve their conflicts.

1. Upon divorce, the courts decide btw the parties on disputes involving property, spousal maintenance, child custody and support.

2. Civil union and some domestic partnership laws afford access to such rules.

d. Expressive Function

i. Imparts ideas through words and symbols:

1. to provide a voice in which citizens may speak; and

2. to alter the behavior of people the law addresses

ii. It’s seen in the symbolic dimensions of marriage.

iii. Ex: In listing grounds for a fault-based divorce, divorce law expresses an ideal of proper marital behavior: good spouses are faithful, not

cruel, and live together.

e. Private Welfare Function

i. Provides support and care to family members

1. what gov’t provides and what family members provide to each other and the influence of both of those on each other

f. Channelling Function

i. The law develops and support social institutions which are thought to serve desirable ends.

1. Seen in debate about the social institution of marriage and its purposes.

Also seen in discussion of parenthood.