FAMILY LAW: MAYERI Fall 2014
INTRODUCTION
What is a family?
· Group of persons w/ at least one authority figure
· Live together/have lived together at some point
· Participate in joint activities, including financial, and day-to-day living – cooking together, care-giving etc.
· Loving relationship
· Blood relationship
· Sexual relationship
· Legal relationship
· Dependency relationship – child/parent
· Interdependency/ shared responsibilities for earning and care-giving
Legal Recognition [of a family] What is at stake?
· State acknowledgement of responsibilities, e.g. spouses- at divorce/dissolution there is a way of dividing assets
· Joint ownership of property
· Medical benefits – insurance etc.
· Authority to make decisions for other family members/on their behalf .e.g. medical decisions
· Tax effects – e.g. marriage
· Immigration/citizenship
· Testimonial privileges
· Right to bring certain legal claims, e.g. loss of consortium
· Inheritance
· Custody rights and responsibilities
Theme 1: Family law is Everywhere, all jurisdictions, state and national, even women’s suffrage and VAWA counts as family law
Theme 2: Family Law’s Exclusivity: Marriage and parenthood, form v. function, functionality doesn’t equal legality, two family law systems?
Theme 3: Law and Social Norms, laws frequent reliance on social norms, law in turn, shaping social norms/behavior, and creation of legal consciousness
Theme 4: Individuals and the state: duties individuals owe to one another, relationship between individuals and the state, state definitions of parenthood and marriage, marriage and parenthood as defining citizenship.
Enduring Questions: How should we deal with dependency and inequality? Dependence of adults on one another, children on parents families on the satte, what gender equality in family relations look like, when and how should the state be involved?
INTRODUCTION TO FAMILY LAW
Significant Trends to watch out for:
· The movement from public to private ordering, exemplified by the increased acceptance by courts of premarital and separation Ks agreed to by the parties- which is partly offset by the count-rent of increased government intervention in families to protect victims of domestic violence.
· The expanding role of the federal government through ConLaw [i.e. Loving v. Virginia] and statutory law [such as Parental Kidnapping Prevention Act]
· Broadened commitment to equality which has reduced discrimination [based on race, national origin, gender, illegitimacy, disabilities, sexual orientation and gender identity in family matters
· The burgeoning number of transnational issues for families with dual citizenship [i.e. immigrant issues]
· Growing number of procedural innovations ranging from mediation and arbitration to collaborative divorce.
Cherlin: The Marriage Go-Round
· America handles/lives marriage differently, americans cohabitate for the first time sooner, higher proportion of Americans marry at some point in life, have partners at relatively young age, children more likely to see their parents split up
· Rise of individualism: rise of expressive individualsm has flourish as prosperity has given more Americans the time and money to develop themselves…suggests that commitments to spouses and partners are personal choices that should be? Ended if they become unsatisfying.
LEGAL FORM AND FAMILY LAW
“The Channeling Function in Family Law”
· Schenider: Channeling function he law creates or supports social institutions which are thought to serve desirable ends . . . generally the channeling function does not require people to use the social institutions but offers incentives and disincentives for their use. Primarily it is their very presence, social currency, and governmental support that make people channel into them.
· Two broad social institutions using the channeling function
o First the law recruits social institutions and then uses them by recognizing them, reward participation [tax benefits for married couples], disfavoring competing institutions [laws against adultery, sodomy, etc.]
o Marriage: law indirectly sets standards form marital behavior through the law of divorce [esp. fault-based divorce]
o Parenthood: laws criminalizing fornication, cohabitation, adultery, and bigamy in principal limit parenthood to married couples, and those legal disadvantages that still attach to illegitimately make it wise to confine parenthood to marriage.
· McClaine: Marriage is declining.
o Women have become more economically independent, blue collar men’s economic positions have declined
o Women are becoming mothers before marriage now [women had strong desire to become a mother before a wife]
o Precisely bc women value marriage, they do not marry fathers of their
ete fulfillment through the claims of romance.
Essig & Owens, “What if marriage is bad for us?”
THE TRADITIONAL MODEL OF MARRIAGE
McGuire v. McGuire: husband and wife do not want to separate or get divorced, but wife is going to court cause he is too frugal. She wants money, issue is whether a court can compel him to give her some. Court cannot compel support payments while they are still living together as husband and wife. Living standards of family are concerns of households, not the courts. Dissent says this holding would incentivize wife to leave husband.
· Doctrine of family privacy: today this concept is different, but here the reference is really about placing the family in a place to avoid intrusion.
· Graham, below, seems to say both have an obligation, but here the Ct doesn’t enforce this idea.
Graham v. Graham: wife attempts to alter terms of a K of marriage. Agreement that wife will pay husband $300 to travel with him, she says he hasn’t fulfilled his part of the bargain. Ct says husbands have a duty/bargain and you cannot K out of that [public policy], making these types of Ks enforceable will cause controversy.
Bradwell v.Illinois: statute says women cannot practice law, argues that women belong in the domestic sphere and allowing practice of law would destroy family harmony.
CHALLENGES TO THE TRADITIONAL MARRIAGE MODEL
National commission on children ‘beyond rhetoric’: sharpest increase in labor force participation among mothers over the past 20 years.
Seigel: She the People:
· even though women were allowed to vote, judiciary moved to repress the structural significance and instead said it ONLY applied to voting and had no normative significance for other matters.
· Adkins first opinion to strike down minimum wage law on sex equality grounds, but more imp bc it reads the 19th amendment as conferring equality on women
· but this ^ was rare, neither Ct nor Congress acted consistently with this ^ understanding.
