Archive for the ‘Family Law’ Category
Bizarro Section 1982 and “civil union” — a thought experiment in unequal names
posted by Marc Poirier
Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”
This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality. We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names. The confusion would be increased if different states chose different new for the new institution parallel to property. (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately. The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites. (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved. (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.
An unlikely scenario? This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court. I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief. The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.
April 30, 2010 at 4:14 pm
Tags: civil union, discrimination, domestic partnership, marriage, property
Posted in: Civil Rights, Family Law
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Wrongful Adoption or Adopting Blindly?
posted by Solangel Maldonado
I have been following the news stories about the Tennessee mother that put her adopted child on a plane (alone) back to Russia because she could no longer cope with his significant health and behavioral problems. Although saddened by this case, I see a silver lining. Maybe, Americans will finally see that international adoptions are not necessarily any less risky than domestic adoptions. In an article published several years ago, I examined the reasons why many Americans prefer to adopt internationally as opposed to domestically. I am not opposed to international adoptions and in fact, believe that the law should encourage more families to adopt, both domestically and internationally, so long as the adoption is in the particular child’s best interest. However, I was puzzled that many families chose to adopt internationally despite the high financial costs ($20,000-$35,000), extensive delays, and bureaucracies in both the U.S. and the sending country. One common response was that domestic adoptions were too risky—specifically, that foreign-born children had fewer health risks than the children available for adoption in the U.S., international adoptions were less likely than domestic adoptions to be disrupted, prospective parents would have a child in their home sooner, and the process was less expensive. In the article, I summarized the literature debunking these myths. Here, however, I would like to focus on only one—the belief that foreign-born children have fewer health risks than those available for adoption in the U.S.
April 29, 2010 at 11:06 pm
Posted in: Family Law, International & Comparative Law
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Lewis v. Harris II — “civil union” versus “marriage”, one more time
posted by Marc Poirier
Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights” with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006). The petition argues that the state’s Civil Union Law, created in 2006, has utterly failed to create the constitutionally required equality for same-sex couples. It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.
In 2006 in Lewis v. Harris, the court held 7 – 0 that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient. But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples. The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.
Three years later, the March 2010 pleading challenges that law as constitutionally inadequate. It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.
April 29, 2010 at 2:15 pm
Tags: civil union, Constitutional Law, domestic partnership, equal protection, homosexuality, LGBT, marriage equality, same sex marriage, separate but equal
Posted in: Civil Rights, Constitutional Law, Family Law
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Over-Parenting
posted by Gaia Bernstein
Benches in playground are deserted these days. Instead, parents are swinging their children while chanting the ABC. Raising my small children, I have observed that parenting has changed dramatically since I was a child – today’s parents are much more involved in their children’s lives than ever before. In our paper titled: “Over-Parenting,” my co-author Zvi Triger and I describe this new trend of parenting, which we call “Intensive Parenting.” We show that the law already enforces Intensive Praneting and argue that despite the advantages of Intensive Parenting, its norms should not be hastily incorporated into the law.
The intensive parent is on a constant quest to obtain updated knowledge of best child rearing practices and use this information actively to cultivate her child and monitor all aspects of the child’s life. Intensive parenting begins as the pregnant mother accesses an ever increasing amount of information instructing her on how to achieve an optimal pregnancy and does not end when the child enters college. Colleges and more recently even law schools have adjusted to accommodate a new generation of parents who insist on being in direct contact with administrators and professors in order to continue to monitor their children’s life.
But, Intensive Parenting is not just about social norms. We show that it is actually a socio-technological trend. Parents use new information technologies to enhance their ability to monitor and be informed. For example, parents use the cellular phone to stay in constant touch with their children. Commentators observing Intensive parents using the cell phone to communicate with college aged children about the smallest anecdotes of life, have called it ”the world’s longest umbilical cord.”
And what does the law have to do with it? We find that the law is already enforcing Intensive Parenting norms, and is particularly powerful in molding parental rearing norms during custody disputes. For example, courts determining custody allocations consider as a factor the parents’ pre-divorce care taking roles and division of labor. The parent who was more involved in the child’s life before divorce has an advantage in custody resolutions. In practice, attorneys are advising their clients on the eve of divorce to engage in Intensive Parenting. The time period before custody determinations becomes a race for involvement, particularly for the parent who was not originally the primary caretaker. Unfortunately, parents eager to gain custody and operating in a world governed by Intensive Parenting norms often become overly dominating in their interaction with children. For instance, by taking over sport practices leaving their child with no independent outlet or by overwhelming their child with constant messages and phone calls.
April 13, 2010 at 3:34 pm
Tags: children, Family Law, parenting
Posted in: Family Law, Law and Psychology, Technology
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Is Your Love Worth $9 Million?
posted by Solangel Maldonado
About a year ago, I blogged about the dying tort of alienation of affections. I say “dying” because all but seven states have abolished the cause of action. However, in at least one of those states, approximately 200 cuckolded spouses each year sue their spouse’s paramour. Just last week, a North Carolina jury awarded a spurned wife $9 million ($5 million in compensatory and $4 million in punitive damages) against the woman she claims wrecked her marriage of 33 years. Although the defendant paramour does not have $9 million, the wife does not regret suing her husband’s lover. She admits that the point of the lawsuit, at least in part, was to send a message. This brings me back to the concerns I raised over a year ago. These suits are not about compensation for one’s injuries or deterring adultery, but rather seek to humiliate the paramour and assert one’s own moral superiority. In fact, these suits can be harmful to the plaintiff herself. In this case, the wife owes tens of thousands of dollars in legal bills and she will probably never receive much (if any) of the $9 million awarded to her. But, as she conceded, this case is about something much greater than money; she wanted people about to enter into a relationship with a married person “to understand, before they do it, how much it hurts.”
The defendant paramour plans to appeal. This might be an opportunity for North Carolina to follow the majority of states that have abolished the cause of action for alienation of affections on the ground that a spouse’s affections cannot be stolen and that one person is never the sole cause of marital breakdown. However, the court might do the opposite and use this opportunity to remind us that “[w]hen a third person is at fault for the breakdown of a marriage, the law ought to provide a remedy.” Norton v. Macfarlane (Utah 1991). Stay tuned.
March 28, 2010 at 11:09 am
Posted in: Family Law
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Bright Ideas: Cahn & Carbone, Red Families v. Blue Families
posted by Daniel Solove
My colleague, Professor Naomi Cahn (GW Law School) and Professor June Carbone (U. Missouri at Kansas City) have recently published a very provocative and interesting new book, Red Familes v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press,2010). Their book examines the fact that “red” states, despite more restrictive family law, have higher teen pregnancy rates and higher divorce rates than “blue” states.
SOLOVE: What inspired you to write the book?
CARBONE & CAHN: We saw the commentary on the 2004 election about moral values and when we saw the statistics on higher divorce rates in the red states, we reacted, “But we know why that happens, red families marry at younger ages and age is a risk factor for divorce.” When we inquired further, we found the differences were much greater than that and worth much more exploration.
SOLOVE: What are the most central ideas of the book are?
CARBONE & CAHN: There really are two family systems , and one is in crisis while the other is doing reasonably well. The “blue” one invests in women as well as men, delays family formation until after young adults reach emotional maturity and financial independence, and views sexuality as a private matter. The “red” system is a traditional one that continues to preach abstinence, early marriage, and more traditional gender roles. The blue system arose in response to the needs of the post-industrial economy while the religious backlash against the new values has locked red families into a war against modernity.
The two systems map onto increasingly ideological divisions in American politics, and make family a point of intense contestation.
The conflict between the two systems produces counterproductive results, such as abstinence education that has the most disproportionate consequences for poor women.
The solution is to reforge values at the state and local level while keeping the pathways (e.g., access to contraception) open through national efforts.
SOLOVE: What was your most surprising finding?
CARBONE & CAHN: We were surprised to find that the relationship between age and divorce is new. While teen marriages have always been risky, those who married at 22 in 1980 had about the same levels of divorce as those who married at 28; today, every increase in age reduces the incidence of divorce. This is surprising to us because it suggests that what is going on is not biological, that is, that the improved stability of later marriage is probably a function of better assortative mating (i.e., the successful marry later and marry similarly successful mates) rather than greater maturity at later ages. It also suggests that what’s wrong with marriage in the early twenties is the absence of the right societal support rather than anything about the immaturity per se of those in their early twenties.
March 1, 2010 at 6:55 pm
Posted in: Articles and Books, Book Reviews, Bright Ideas, Culture, Family Law, Feminism and Gender, Politics, Psychology and Behavior
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Billionaire Girard’s Imperfect Legacy
posted by Lawrence Cunningham
In his early-19th century will, Stephen Girard, one of the richest persons in United States history, endowed a school, Girard College, for the education of white boys who were poor and orphaned. As of the early 21st century, the Philadelphia school (whose Founder’s Hall is pictured at right and from which I was graduated in 1980), educates students of all races and both genders from families with limited financial resources headed by a single parent or guardian. Thus have the scope of race and gender radically opened and the concepts of poor and orphaned subtly shifted.
Girard’s will, which elaborately detailed all aspects of the school and dedicated his entire fortune to creating it, also prohibits clergy of any sect ever from stepping foot on campus. Despite early constitutional challenges, this provision remains unchanged and generally enforced. Though there is considerable scholarship on Girard College, in law as well as sociology and other fields, relatively little intellectual energy has been devoted to discerning how and why transformations occurred as to race, gender, poverty and family, yet not as to religion.* Read the rest of this post »
January 5, 2010 at 8:59 pm
Posted in: Civil Rights, Estates and Trusts, Family Law, Feminism and Gender, Race, Religion
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Regulating Surrogacy–But Only In Certain Cases
posted by Solangel Maldonado
A few days ago, the New York Times ran an article on the legal regulation of gestational surrogacy, or rather, the lack thereof. A gestational surrogate carries an embryo created from either (1) the intended parents’ eggs and sperm, (2) donated eggs or sperm, (3) or donated eggs and sperm. Although some people object to all types of surrogacy, it is this third type that is most controversial because the intended parents—the persons who contracted with the gestational surrogate—have no genetic link to the child they contracted to create.
Gestational surrogacy raises many questions—for example, what happens when the gestational surrogate refuses to relinquish the child at birth—but I want to focus on one issue I find particularly disturbing. In an effort to provide uniformity and predictability, the American Bar Association has drafted a model act for states to adopt. The act would require individuals seeking to create a child using a gestational surrogate to obtain court preapproval and undergo a home study similar to that required of adoptive parents. At first glance, preapproval seems like a good idea as it would ensure that the parties know their rights and that the intended parents are fit to raise a child. My problem with the proposed act is that the home study and preapproval process is only required where neither of the intended parents has a genetic tie to the child.
On one level, the ABA’s proposal makes sense. Some the concerns raised by gestational surrogacy—the commercialization of procreation and commodification of children—might not be present when at least one of the intended parents is also a biological parent. Arguably, it might be more difficult to justify regulation of surrogacy agreements when parents are raising their own biological children and relying on technology to merely facilitate the creation of those children, as opposed to creating and raising children unrelated to them.
I am troubled, however, by the message the law would send if it required court preapproval of gestational agreements involving intended parents who are unable or unwilling to provide their own gametes while imposing no such burden on those who provide their own gametes. It may signal that parents who lack genetic ties to their children are somehow not “real parents” in the same way as those with biological ties. I wonder whether this message would further fuel the desire of individuals currently using all kinds of technology to create their own biological children, sometimes at great physical, emotional, and financial cost to them and their families. I also wonder whether such a law would signal to adoptive parents and children that their families are somehow different (and less desirable) than those who share biological ties.
December 17, 2009 at 11:56 am
Posted in: Family Law
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No Right to Retire?
posted by Rachel Godsil
Courts regularly grapple with the competing principles of autonomy and obligation in the context of family law. How to reconcile these principles – when gender, money, relative status, jealousy, spite, avarice are involved – is a fascinating challenge for judges. These issues are also fun to teach since they are often uncomfortably close to most people’s own experiences.
On Monday, the Massachusetts Supreme Court considered a variant of the autonomy/obligation condundrum in Pierce v. Pierce - in which the Court was basically asked to decide whether a higher earning spouse has a “right to retire” and be exempted from otherwise on-going alimony obligations.
Rudolph Pierce was a well-compensated attorney. In the divorce agreement from Carniece, his wife of 32 years, he agreed to pay $110,000 year in alimony until either party died or she remarried. When he decided to retire from his partnership at age 65, he argued that he should be relieved of any obligation to pay alimony and asked the court to adopt a rebuttable presumption that all alimony should be terminated when (1) the supporting spouse retires from employment at a customary retirement age and has no actual earned income, (2) the parties’ marital assets, including their retirement assets, had been equally divided at the divorce, and (3) the parties have the same amount of liquid assets at the time of the provider spouse’s retirement.
The trial court agreed to a significant modifcation of Rudolph’s obligation – to $42 k – but held that in light of Carniece’s recent loss of her job, the fact that she was not yet t entitled to Social Security, and that Rudolph continued to have significant earning capacity (in addition to his assets and his current wife’s salary), he wasn’t off the hook altogether. The Supreme Court rejected Rudolph’s rebutabble presumption and affirmed the multi-factoral test generally applicable to modification requests.
My first thought (which the Court echoed) is why (at age 57), Rudolph agreed to such a high alimony award without a change upon his retirement. A cynic would suggest that this might have been intentional so that his wife would agree to a fairly equal division of property despite the parties’ differential earning capacity (his wife had been the primary caretaker of the children and home though she worked outside of the home as well).
Cynicism aside – this is a difficult issue. Rudolph’s arguement that declining to accept the presumption would grant the recipient spouse “effective veto power over the provider spouse’s retirement decision” was wildly exaggerated. But the Court did impose limitations on when a “supporting spouse” will be able to retire – and for some, the idea of having to continue to work to support a former spouse will seem deeply problematic.
November 11, 2009 at 2:06 pm
Tags: gender
Posted in: Family Law
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The State of/and Nonmarital Unions
posted by Linda McClain
If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it, then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage and government’s proper role in nonmarital unions. Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various equitable grounds – is part of our society’s basic vocabulary of relationships. But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children. ”Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.
October 31, 2009 at 1:19 pm
Posted in: Family Law
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First Marriage
posted by Linda McClain
Yesterday, when I went on the Internet on my office computer, the headline was, “State of Their Union,” referring to a sneak preview of a long story in this Sunday’s New York Times Magazine, “The Obama Marriage.” Earlier that day, when I turned on my home computer, my internet provider listed as one of the top videos of the week “Michelle Obama’s Love Tips.” Intrigued, I clicked on the site, which took me to a segment on E!News, with a story on “The First Lady sounds off on finding love” in the December issue of Glamour magazine. Suddenly, we are awash not just in the usual glamorous photos of the First Couple, but also in stories of the First Marriage. Since marriage promotion happens to be the next topic in my Family Law course, and is a topic in which I have more than a passing interest, I thought I would write here about this very public marriage and how it might relate, if at all, to the federal government’s campaign of promoting healthy marriage (which, at the moment, due to DOMA, excludes same-sex couples from its purview) and to the more general question of marriage and gender relations. Read the rest of this post »
October 30, 2009 at 8:21 am
Posted in: Family Law
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You’ve lost that Loving feeling
posted by Kaimipono D. Wenger
An incredible story in today’s news:
A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.
“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”
Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.
It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.
October 15, 2009 at 3:54 pm
Tags: Civil Rights, Loving v. Virginia, marriage, Race
Posted in: Civil Rights, Constitutional Law, Family Law
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Unmarried Couple Ban Symposium
posted by Solangel Maldonado
This symposium announcement just crossed my desk:
The Arkansas Law Review will host a symposium on the Unmarried Couple Adoption Ban on November 5, 2009, at the University of Arkansas School of Law in Fayetteville, Arkansas. The symposium will address the legal and political issues surrounding what was Arkansas’s Initiated Act 1, banning the adoption of children by unmarried couples in the state, as well as the national context in which it was passed. It will represent a balanced presentation of the various viewpoints on this widely debated issue.
Primary speakers will be Professor Mark Strasser of Capital University School of Law and Professor Lynn Wardle of Brigham Young University Law School. Representatives from Arkansas Advocates for Children & Families and the Family Council Action Committee will also participate.
October 14, 2009 at 1:31 pm
Posted in: Conferences, Family Law
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Breaching a Child’s Confidentiality
posted by Daniel Solove
Over at the NYT blog is an interesting story about a British writer (Julie Myerson) who has published a memoir about her son’s drug addiction (The Lost Child). Her 20-year old son has criticized the publication of the book. According to the Telegraph (UK):
The 20-year-old said: “What she has done has taken the very worst years of my life and cleverly blended it into a work of art, and that to me is obscene.
“I was only 17, I was a confused teenager, I was too young really to know who I was or what was happening.
“What she describes in her book are a series of incidents, it’s not who I am and I find it very sad that she feels the need to tar me with the ‘drug addict’ brush.
“She’s been writing about me since I was two, and, quite frankly, I’m not surprised by anything she does any more.
The NYT Blog asks:
Is it inappropriate and even harmful to expose the private lives of minor children, in particular? What privacy lines should be observed, if any, in writing about family members and others?
It contains responses from four people, Alison Gopnik (a psychology professor), David Matthews (author), Melanie Gideon (author0, and Michael Greenberg (author). For example, Author David Matthews writes:
Nothing is off limits as far as I’m concerned. Whether an author wants to risk fraying familial and social ties in the pursuit of the truth (as they see it) is a question left up to the writer.
Matthews’ response strikes me as rather extreme. In Britain, family members owe each other duties to keep private information confidential. In the US, the breach of confidentiality tort applies to doctors, lawyers, and others, but hasn’t been extended to friends and family. Perhaps it should be.
According to the Telegraph article, Myerson’s son said:
“I even consulted a lawyer to try to stop it, but was told there wasn’t much I could do, so I made her take out the part where she said I was selling drugs to my 12-year-old brother, which was one of her fantasies.
I’m surprised that he was advised the law didn’t protect him, since the book was published in Britain and he’d likely have a decent case under British precedent.
The Myerson case is increasingly becoming more common. Numerous bloggers are chronicling the lives of their children online, posting photos and a day-by-day account of their lives. What happens when these children grow up and resent having their entire childhood permanently recorded for the world to see?
Should family members owe each other a duty of confidentiality? Should parents write about a child’s life without that child’s consent?
Hat tip: PogoWasRight
September 1, 2009 at 7:40 am
Posted in: Family Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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The Law Gives Up on Beatty Chadwick
posted by Dave Hoffman
Beatty Chadwick, Post Release
Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation. I opined that:
Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”
So, I guess that Cover needs to be footnoted: “Except when judges blink.” Beatty is out. And his jailers are celebrating:
About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.
“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”
Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts. As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.
But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large. His conduct (as alleged) created a social harm which his ultimate freedom only made worse. As the attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”
July 27, 2009 at 7:36 pm
Posted in: Behavioral Law and Economics, Criminal Law, Family Law, Law and Psychology, Weird
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Is Divorce Too Easy? Helping Marriages Survive Infidelity
posted by Solangel Maldonado
Last week I came across a New York Times article that has led me to question my position on the legal regulation of divorce. I generally agree that once a person decides to end his or her marriage, there is little that lawmakers can do to help “save” it. Most people know that divorce often wreaks havoc on the family’s financial security, is almost always painful for the children, and can have long term negative effects on children’s emotional health, academic achievement, and adult relationships. Despite this knowledge, approximately one million children each year experience their parents’ divorce. Although there are many reasons why couples divorce, adultery is often at the top of the list. While some states require spouses seeking a no fault divorce to live apart for a statutory period (often 6 months), no state imposes a waiting period when the alleged ground is adultery. Adultery is seen as a marital offense that no one should have to endure. Indeed, until the late 1960s, adultery was the only ground for divorce in New York. It turns out, however, that most marriages survive adultery. In other words, although a betrayed spouse has the legal right to file for divorce immediately (at least in the two-thirds of states that still have fault based divorce), most do not. Marriages often last for years after the infidelity is discovered.
Many of us find it hard to believe that, in a time of websites with mottos such as “Life is short. Have an affair“, marriages might actually be stronger and more resilient today than they were 20 or 30 years ago. The divorce rate has stabilized in recent years after rising dramatically in the 1970s and 80s. In addition, the 10-year divorce rate for couples who married in the 1990s is significantly lower than that of couples who married in the 70s and 80s. Admittedly, a lower divorce rate does not necessarily mean that spouses are happy, but marriage has traditionally served a greater good than promoting the happiness of its individual members. The Supreme Court has described marriage as the “foundation . . . of society, without which there would be neither civilization nor progress.” Zablocki v. Redhail, 434 U.S. 364, 384 (1978).
Given society’s interest in marriage and all of the negative consequences of divorce, should law incentivize couples to repair the marriage after infidelity? For example, the reason why some states require couples seeking a no fault divorce to live apart for a significant period of time is that lawmakers believed that this waiting period might actually lead to reconciliation. The hope was that spouses who were living apart while waiting out the statutory period would come to the realization that they did not want to be apart and would reconcile. I am not aware of any empirical evidence suggesting that this waiting period actually leads to long term reconciliation, but many couples do reconcile after separation. Maybe they would not have done so had they been able to seek a divorce immediately.
Studies have found that at least two-thirds of people who discovered a spouse’s affair were still married and living with the cheating spouse years later. These studies might suggest that the law need not provide an incentive for spouses to stay together after infidelity—the majority are already doing so even though they have legal ability to exit immediately. Of course, there are many reasons why a betrayed spouse might stay (for the sake of the children or financial stability, for example) even if the law does not place any obstacles to exit. But is it possible that some marriages that did not survive infidelity could have survived had the law made divorce more difficult? Is it possible that a woman (whose first instinct upon discovering her husband’s affair is to kick him out) would give him a second chance if she knew that she was stuck with him anyway for at least another 6 months to a year. As the New York Times article noted, although the wife of unfaithful South Carolina Governor Mark Sanford asked him to move out after she discovered his affair, she still believes that their marriage can be repaired. What if the law could give them a push in that direction? Although a waiting period alone might not change spouses’ willingness or desire to try and save their marriage after an affair, social norms might. If the law were to require a cooling off period in cases of adultery, as it often does in no fault divorce cases, it would signal that adultery is forgivable—that society no longer considers it an offense that no one should be expected to endure. As a result, individuals who do not give their cheating spouses a second (or third, or fourth) chance could be stigmatized as uncommitted or even selfish. Therein lies the challenge when law tries to regulate intimate relationships. How can lawmakers encourage stronger marriages (which are presumably good for society and children) while simultaneously respecting individuals’ rights to personal happiness and freedom?
July 9, 2009 at 11:52 pm
Posted in: Family Law
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Criminalizing Matchmaking: Mail Order Marriage Laws
posted by Solangel Maldonado
During his recent appearance on the Late Show with David Letterman, actor Alec Baldwin, who has been involved in a bitter custody dispute with his ex-wife for years, offended many people when he said that he would love to have more children and was “thinking about getting a Filipino mail-order bride.” Mr. Baldwin has since apologized for the insensitive comment and admitted that “such anger and frustration about the issue of sex trafficking is understandable.” Admittedly, some mail order marriages are the result of sex trafficking, but does this mean that countries should criminalize the mail order marriage industry as the Philippines has done?
The Philippines has two statutes addressing mail order marriages. Republic Act No. 6955, enacted in 1990, makes it a crime for any person to ”carry on a business which has its purpose the matching of Filipino women for marriage to foreign nationals either on a mail-order basis or through personal introduction.” The penalty for violation of the Act is a minimum six years imprisonment. In addition, if the offender is a foreigner, he will be deported (after serving his sentence) and permanently banned from Philippines.
In 2003, the Philippines enacted the Anti-Trafficking in Persons Act,which, among other things, makes it illegal “To introduce or match for money, profit, or material, economic or other consideration . . . any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage.” The penalty for violation of the Anti-Trafficking Act is 20 years imprisonment and a minimum fine of one million pesos.
Despite these laws, the mail order bride industry continues to flourish. Experts estimate that one-third to one-half of all foreign fiancees who enter the United States each year met their American husbands-to-be through an international marriage broker. A large majority of the women come from Southeast Asian countries, including the Philippines, and the law has had little effect on international marriage brokers who do a lot of their advertising and matching online. Although the United States also has laws regulating the mail order bride industry, some commentators argue that these marriages exacerbate gender, race, and class inequalities and thus, the United States should follow the Philippines’ approach. Thoughts?
June 10, 2009 at 8:35 am
Posted in: Family Law, International & Comparative Law
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Personality Types, Creativity, and Same-Sex Marriage
posted by Naomi Cahn
Co-authored with June Carbone
UCLA’s Williams Institute has just issued two studies on the economic effects of gay marriage. The first study, on the relationship between a state’s approach to marriage equality and population migration – documents that members of the “creative class” – people who “create’ as their job – who are in same-sex relationships were much more likely to move to Massachusetts following the Goodridge decision and the legalization of same-sex marriage. The study’s author suggests that this could improve help the state’s economy in the long-term. A second study shows that same-sex weddings have added over $100 million to the Massachusetts economy (although this is not even a drop in the bucket in the $300 billion spent in Massachusetts in, for example 2004). Serendipitously, David Brooks wrote an op ed in the New York Times today, “In Praise of Dullness,” discussing a different study that found the ideal C.E.O. is ” humble, diffident, relentless and a bit unidimensional,” in short, “not the most exciting people to be around.” This study complements the work of journalists and political scientists, such as Bill Bishop and Andrew Gelman, who increasingly find that the high tech centers of the country (including the Boston corridor) attract that same creative class open to new ideas and approving of same sex marriage, while the conscientious, more religious, and conventional family oriented types are drawn to other regions – regions that tend to oppose same-sex marriage.
Do these divisions suggest that opposition to same-sex marriage is in our genes – or at least our personality types? The CEOs and the creative class of the new economy may not belong to different tribes, but they tend to see the world through different lenses that color their perceptions. Read the rest of this post »
May 19, 2009 at 1:34 pm
Tags: cultural frameworks, economics, gay marriage
Posted in: Civil Rights, Family Law
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After Craigslist, Seeking Arrangements?
posted by Frank Pasquale
Attorney generals have been pressuring Craigslist to eliminate “ads that are poorly disguised come-ons for illegal prostitution.” One key question about the campaign: is the prostitution or the “poor disguising” of it the target? The free pass given to Seeking Arrangements suggests the latter–and how difficult it is to limit commodification nowadays.
According to Ruth Padawer’s excellent profile of Seeking Arrangements, the deals brokered by “sugar daddies” and “sugar babies” on the site are complicated:
[S]ince the 1970s, courts have ruled that as long as the woman is paid for some service besides sex — housecleaning, companionship — the arrangement is not the equivalent of prostitution. “When these sugar-daddy relationships go the way I think they should go, the lines are pretty blurry between that and a typical boyfriend-girlfriend relationship,” [one woman on the site] said. “And when they go the way I don’t think they should go, the lines are blurry between that and sex work.”
One image on the site features a dazed, graying man doted on by two barely clad attendants . . . . But this marketing spin doesn’t capture the nuances of the relationships that often develop between the “daddies” and the “babies” who meet on the site — relationships that can turn out to be more complicated than even the members themselves expect.
Padawer notes that “these men — especially those shopping for women half their age — are digging deep into their pockets to pay for an illusion: that . .. they’re still enchanting enough to charm pretty young women.” It’s a description/judgment that might well undercut the appeal of such sites if it becomes prevalent enough (though the decadent spirit has always preferred simulation over the real thing).
The law appears to have chosen to fight only the straight-up trade of sex for money. The battle against sites like Seeking Arrangements will probably have to be a cultural one.
May 15, 2009 at 7:05 am
Posted in: Economic Analysis of Law, Family Law, Feminism and Gender
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What’s in a Name, Part 2: Consider “half-siblings”
posted by Naomi Cahn
Ryan Kramer graduated from Colorado University’s aerospace engineering program on Friday, a program that is so tough that only about 50% of those who begin ultimately finish it. Before he starts his master’s degree in engineering management at USC this fall, one of his big summer plans is to meet two of his half-siblings; he has at least five others.
I’ve met Ryan once, and was incredibly impressed with him – I’m not surprised that he was able to complete his competitive college program nor that he is seeking out half-siblings and the man who anonymously provided the sperm that enabled Ryan to exist. Ryan and I met at a conference on establishing a national donor gamete databank. Ryan and his mother, Wendy Kramer, have started the enormously successful Donor Sibling Registry, which is now responsible for connecting more than 6000 people with others who share some of the same genetic origins (disclosure: I have just become a board member of the DSR).
Donor-conceived offspring often – although not always – regret their lack of connection with their entire biological heritage. They want to know more about the often anonymous individual[s] who helped create them. As the secrecy around using “donor” sperm and eggs dissolves – in the past, parents frequently did not tell their children that they had been created by donor gametes — offspring and their parents are increasingly trying to get additional information and are advocating for disclosure of “donor” identities. Many have begun to use the internet to create an extended family that includes others who have used the same donor. Almost 150,000 people visited the DSR website in 2008, and more than 24,000 people have registered on it. It maintains an extremely active blog and message group.
The language in the donor world shows how these families are constructed. Offspring who share the same donor are typically labelled “half-siblings. “Accidental incest” is a concern. The word “donor” is itself a misnomer; gametes are typically sold rather than provided altrustically. Read the rest of this post »
May 10, 2009 at 2:30 pm
Posted in: Bioethics, Family Law, Feminism and Gender
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