Category: Family Law

5

Is Your Love Worth $9 Million?

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.

4

Bright Ideas: Cahn & Carbone, Red Families v. Blue Families

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.

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1

Billionaire Girard’s Imperfect Legacy

GC Founder's HallIn 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 More

6

Regulating Surrogacy–But Only In Certain Cases

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.

2

No Right to Retire?

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.

0

The State of/and Nonmarital Unions

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.

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0

First Marriage

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 More

1

You’ve lost that Loving feeling

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.

0

Unmarried Couple Ban Symposium

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.

8

Breaching a Child’s Confidentiality

the-lost-childOver 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