Category: Family Law

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Book Review: Banks’s Is Marriage for White People? How African American Marriage Decline Affects Everone

Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

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Same-Sex Couples and Divorce

Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.

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Sidebar Publishes Response to “Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality”

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Adrienne Davis’s article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, by Professor Elizabeth M. Glazer of the Hoftra University School of Law.

In “Regulating Polygamy:  Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.”  In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as frequently invoked.”  Professor Glazer argues that those favoring legalization of polygamous marriage should analogize it to sodomy, rather than same-sex marriage for two reasons:  (1) the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages and (2) sodomy and polygamy share in common a history of criminalization which same-sex marriage does not.

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Divorce Law Beats Fraud, Maybe Contract

We’ve debated whether mutual mistake is a ground to rescind divorce settlements dividing marital property based on an account held with Madoff. The New York Court of Appeals will soon decide in the case of Simkin v. Blank.

As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.

As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.

The New York Court of Appeals today issued an opinion, CFTC v. Walsh, with clues about this balance. Today’s divorce settlement case involves an innocent spouse who received millions of dollars from an ex who allegedly committed a spectacular securities fraud (amounting to some $550 million).

Federal agencies want to recover the property from the innocent spouse. The defense: the millions counted as marital property and the settlement agreement makes it hers, even if fraudulently obtained and once belonging to innocent victims.

The Court thus weighed whether to privilege the public policy intended to restore stolen property to rightful owners or the one favoring finality of divorce settlement agreements. Read More

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Same-Sex Marriage in New York

2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.

But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.

Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.

Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.

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The Old Illegitimacy Part II: Facilitating Societal Discrimination

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

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The Old Illegitimacy: Legal Discrimination Against Nonmarital Children

Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

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Money Matters in Ongoing Marriage Law

Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.

It becomes a special concern then, that sharing patterns in marriage are gendered.  As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.

How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?

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Book Review: Gender Pressures (Reviewing Williams’s Reshaping the Work-Family Debate)

This book review is co-authored by Naomi Cahn.

Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), 304 pp.

As the unemployment rate increases, as we chart the rise of the Tea Party and the Republican Party’s ability to express disdain for the unemployed without significant political cost, Americans lack a roadmap for the role of class and gender in the new American landscape.  Joan Williams’ book, Reshaping the Work-Family Debate:  Why Men and Class Matter (Harvard 2010), supplies that roadmap.  The book creates an innovative critical framework for examining the relationship between law, work and family in the post-industrial economy and for ensuring that both men and women are included in any revisioning of this relationship.

The book builds on Williams’ earlier research exploring the maleness of the workplace and expands it dramatically.  Williams starts with the caustic observation that “we still have a workplace perfectly designed for the workforce of the 1960’s.”  That workplace depended on the availability of “ideal workers,” who could meet employer expectations premised on the availability of someone else to tend to the children, run the necessary household errands, and make the work-family relationship work.  While today’s workplaces successfully assimilate women who participate on the same terms as men, they remain remarkably resistant to creating more supportive environments that would assist parents – male or female – in balancing the competing demands between work and family.  The curious question is why.  Williams makes the case that more flexible workplaces would benefit employers and that the U.S. is so far from the norm that it can boast “the most family-hostile public policy in the developed world.”  She argues that the key to changing it, as her subtitle suggests, requires bringing class and the construction of gender into the debate.  She shows how the hidden injuries of class fuel gender traditionalism and the culture wars associated with a conservative resurgence.

Where the book moves most significantly beyond Williams’ earlier work is placing the debate over the workplace at the intersection of class and gender.  The first part of the book thus retells the story of work-family conflict.  The initial chapter takes on the story that while well-educated women are not more likely tot drop out of the work place, they may face the most intense choices between the remade ideal of super- mothering (the new helicopter parents) and workplace norms that prize total dedication.  The second chapter then tells the often heartbreaking stories of the dilemmas working class parents face; these dilemmas are often not so much about time as flexibility – the inability to make a personal phone call can affect children’s lives.

The middle part of the book links these developments to the remaking of workplace norms of masculinity.  In 1965, class had little to do with leisure; executives and union members worked about the same hours. Today, the American elite works longer hours than most of the rest of the world while working class men put in fewer hours than they did in 1965.  The new “macho” norm for law firm associates or Silicon Valley engineers is total dedication; for the working class men on an oil rig, it continues to be physical bluster.  Williams argues, however, that both competitive norms not only drive women away, they are also bad for business.  Industry productivity goes up when the company takes into account the costs of attrition and the lack of cooperation.  Workplaces with mixed rather than macho gender norms outproduce the competition.

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Intimate Partner Sharing and Commitment Today

My thanks to Angel Maldonado and the rest of the Concurring Opinions team for inviting me to blog this month. During my guest stint I will highlight the law’s involvement in the everyday lives of couples, exploring the intersections of law, sharing and economic behavior and gender relations.

Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even suggest that marriage itself should be on the chopping block—get the state out of intimate relationships, don’t privilege one kind of relationship over another, and leave adults to choose, define and resolve their own relationships.

But failures and worries of relationship failures notwithstanding, the vast majority of American’s today still desire and in fact pursue deep long lasting relations with an intimate partner, and for many, marriage is still seen as the ideal. Although marriage rates have decreased and vary, especially by race and socioeconomics, most people in the U.S. still get married. Lifetime marriage rates from the 2000 census show that overall 86% of men and 88% of women have married at least once by the time they are 49. Interestingly, many unmarried folks are also enthusiastic about marriage. For example, Pew Research Center data from a 2007 survey found that most unmarried adults say they want to marry. Both the never-married parents as well as the cohabiters in the survey were more skeptical than all others that a person can lead a complete and fulfilled life if he or she remains single. No doubt then, committed coupling is still very much in vogue. Something remains powerfully attractive about being part of an intimate partner relationship more generally and for many, about marriage in particular.

What so many people are after is a committed sharing relationship—a protected arena to build and enjoy a web of interdependent connections that bridge the gap between individuals. For many, marriage is the vehicle of choice for this kind of relationship, although surely, cohabiting relationships recurrently serve these goals as well. Because cohabitation is more variable, I will focus on marriage for now, as marriage clearly includes a strong sharing norm. Research demonstrates that extensive sharing is viewed as a centrally important goal for marriage. And behavior reflects this. Although not in every way, and certainly not always perfectly accomplished, spouses regularly engage in an interdependent sharing of their lives, socially and economically.

How should law regard sharing commitments and behavior among couples? Should sharing be supported and nurtured? For any couple who desires it? In what form? Should law funnel intimate partner sharing into a particular relationship structure such as marriage or perhaps civil unions? Or should law seek to reduce interdependence and maximize independence for partners? Alternatively, perhaps law should withdraw altogether and leave it to couples to govern themselves?

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