Domestic Relations
Fall 2006
Professor Montgomery
Outline
CHAPTER 1—WHEN ARE ADULT PARTNERS A FAMILY?
Regan, Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation
Cohabitation on the rise and not merely as a pre-marriage “trial”.
Arguments for institutionalization of cohabitation—cohabitation and marriage involve substantially the same attitudes and orientation; respect for individual privacy and autonomy mandates that the state now favor any particular form of intimate relationship above others.
Arguments against institutionalization (Regan’s view)—research shows cohabitors are not married in substance, but not in form. Their relationships are less stable; society has a legitimate interest in promoting intimate commitment between adults, regardless of whether the relationship involves children.
Fundamental value of modern liberal society: Individual Authenticity
i. Self-Fidelity—unique identity that individuals should strive to attain.
ii. Autonomy—idea that human beings can be self-governing.
iii. Integrity—requires that a person remain true to principles/commitments.
Ability to make and keep commitments is critical to unity of the self over time.
For intimate commitment to be constitutive of identity thus requires that it be seen as something that derives its value from a source outside the self’s choice to engage in it. It requires social validation.
Three Ways That Family Law is Changing in States
(1) Constitutionalization
(2) Federalization (government threatening states with loss of funds, other states enforcing child support orders)
(3) Alternative Dispute Techniques (ADR/Collaborative lawyers)
Revolutions in Domestic Relations Law
(1) No Fault: family law used to prohibit divorce. Then we had laws which allowed divorce, but it was based upon fault grounds. So, unhappy couples would rig adulterous relationships in order to get a divorce. Finally, we came up with no fault divorces where the husband and wife lived apart from each other for a year.
(2) Equitable Distribution: it used to be that when there was a divorce, each party kept what they brought to the marriage. So, since husband kept everything, permanent alimony was routinely granted for the wife. However, now we have equitable distribution of marital property. 50/50 is the standard now. It doesn’t really matter what one party may have done because no fault is no fault. Occasionally, it does change things, but not very often. Property has taken the place of alimony except in long term marriage situations.
(3) Alternative Living/Parenting Arrangements:
It is up to states to decide who is a parent; who is a family; and what is a marriage!!!
Every state has marriage formalities. Some states allow common law marriage and some states require a marriage license. Usually in order to satisfy common law marriage, you must hold yourself out to be married to the public. There are also age requirements and marriages which are prohibited (incestuous etc).
What are some of the tangible benefits that come from being married? You get inheritance, you get tax bene
NOTE:
i. This case has not been widely applied.
1. NOT IMPORTANT City of Ladue v. Horn (1986)
ii. Court says here there is no fundamental interest at stake.
iii. The ordinance meets rational basis as it is reasonably related to the health, safety, morals, and general welfare in the city.
iv. Maintenance of a traditional family environment constitutes a reasonable basis for excluding uses that may impair the stability of that environment and erode the values associated with traditional family life.
NOT IMPORTANT Borough of Glassboro v. Vallorosi (1990)
Court agrees college students here constitute a stable and permanent living unit.
Basically, the 3 unimportant cases do not matter very much. They basically say that it is up to the states on regulation.
CHAPTER 3—ENTERING CEREMONIAL MARRIAGE
Introduction
Marriage is important for determining social and economic rights and duties of spouses and various rights, incidents, and benefits that depend on marital or family relationships because a variety of social institutions employ familiar terms to express certain relationships and obligations.
Varieties of Marriages:
Traditional—live together, maybe kids, etc.
