Family Law Outline

By Stephen Sullivan,2014-08-11 10:23
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Family Law Outline ...

    Family Law Outline

    Hasday 2002

    Themes of the class

    ; Socialwhat social purposes are served by the family? How has the family been used to construct/maintain social/political structures? How does this act to exclude certain groups from these structures?

    ; Politicalwhat is the relationship between the family and the state? How should it be regulated? Is the state an aggregation of families or individuals?

    ; Economichow is the state to regulate the economic relationships of family members? Should the cost of dependence be privatized, borne by family members or more collectively?

    ; Individual controlhow much should the individual be in control of his own family relationships? How much should these be statuses? How much should these be deemed contractual in nature?

    I. Theoretical and Historical Perspectives on the Family

    a. Marriage and Parenthood in the Liberal and Republican Traditions

    i. Republican tradition

    1. Locke and Hobbes represent the Republican tradition, which think

    of the family as the ―first society‖ upon which all political

    structures are erected, and which are justified by analogy to the

    family. And while the family is hierarchical in relationship, the

    responsibilities are reciprocal.

    a. Moreover, the state is going to respect the family. It‘s sort

    of like federalism—just as the federal gov‘t interacts with

    the states as states, the gov‘t will interact with the families

    as families.

    b. Hence, society is an aggregation of households rather than

    an aggregation of individuals.

    2. Position of man—he‘s like a sovereign, w/ responsibilities of

    dubious enforceability to other family members.

    3. Rationale for female subordination:

    a. Because man is ―best qualified‖ for the task of governing a

    family (Astell)

    b. Because man generally the more excellent sex, and so

    instances where woman would be dominant would be very

    rare (Hobbes)

    c. Because it is natural (Locke)

    i. Unavoidably, there will be intrafamily conflicts,

    therefore, the state must know to whom to look to

    make family decisions. This falls to the man, ―as

    the abler and the stronger.‖ That is, the husband is

    the better decisionmaker

    4. Three elements of early modern family law: (1) hierarchy was

    necessary to the operation of the household; (2) proper director of

    family‘s activities was its husband/father/master; and (3) the

    subordination of wife to husband was foundation of family unit

    and thus society itself.

    ii. Liberal Tradition

    1. Each sphere of human activity ought to be governed by its own

    goods. Each area has its own ―justice.‖

    2. In marriage and married life, he feels that romantic love is the

    appropriate governing norm

    3. Society is an aggregation of individuals rather than an aggregation

    of households

    b. Modern Feminist Criticism

    i. The critique of liberalism for ignoring the family or treating it as a special


    1. Liberal theories that purport to be universal theories of justice

    ignore the family (e.g., Rawls)

    2. Why is this inadequate?

    a. Completely ignores women

    b. Family regulations, etc., should be consistent w/ notions of

    sexual equalityfamilies should be ordered by norms of

    sexual equality

    ii. What does justice mean w/in the family? (does feminism have any

    positive suggestions, or is it just criticism?)

    1. Okin on the sources of injustice w/in the familyIgnoring gender

    relations is unacceptable because: (1) women must be fully

    included in any satisfactory theory of justice; (2) equality of

    opportunity is seriously undermined by the current gender

    injustices of our society; and (3) the family must be just if we are

    to have a just society.

    a. Disparities within the familywomen are primary parents

    (which has side effect of worsening women‘s careers),

    while men are primary ―breadwinners‖ (which has side

    effect of enhancing men‘s personal careers).

    b. Effect on children—if children‘s first experience w/ gender

    roles is one of sexual inequality, it‘s hard for them to learn

    norms of sexual equality.

    c. Disparities between familiesw/ increased rates of

    divorce/single motherhood, the disparity between the sexes

    has compounded the problem that some families are

    wealthier than others. The division of labor w/in a family

    leaves women less capable than men for supporting

    themselves, making the women relatively impoverished

    upon divorce (esp. when including the frequent

    nonpayment of child support).

    2. Schultz on the status/contract distinction (so what‘s the solution to

    make the family more consistent w/ norms of sex equality?)

    a. Something is a contract rule if its terms are subject to individual change—there‘s a default rule that the parties can negotiate around

    i. Examples of contract rules: Division of property

    agreements (prenups), where they live, etc.

    b. Something is a status rule if its terms are unchangeable from state-set rule—it‘s an all-or-nothing package

    i. Examples of status rule: Married couple can‘t

    contract for domestic services, can‘t bargain around

    marital rape exemption, interspousal tort immunities,

    rules about marriage choice (polygamy, incest, etc.)

    c. The trend is to move from status rules to contract rules, and Schultz feels that this is the way to alleviate problems of family law

    i. Why would private agreements be more consistent

    w/ feminist notions of sexual equality? If parties

    can reach mutually agreeable bargains, then they‘ll

    ipso facto be good for the parties.

    1. Problems:

    a. Since men earn more, the realities of

    the market will mean that parties are

    likely to contract in ways that

    perpetuate gender roles

    b. Bounded rationality problem: parties

    will find this easy route to go to

    because bounded rationality problem

    from socialized norms of family life:

    e.g., the stay-at-home mom

    c. Information failure: People have

    unrealistic expectations of success of

    their marriage

    d. Anticommodification: the contract

    bargaining model doesn‘t graft well

    w/ marriage, because people don‘t

    bargain for self-benefit in the context

    of a marriage

    2. Of course, this all really turns on what the

    substance of the status rules are. If they‘re

    bad or unequal, contract rules are

    nevertheless desirable. Otherwise, status

    rules may generally be superior

    3. Disparities between familieshave tremendous effect on

    children‘s opportunities. If we value equality, this is something

    else social justice should tackle.

    a. Is it legitimate to distribute wealth and opportunities based on family (e.g., allow inheritance)?

    i. Opposing principles: freedom of property v.

    egalitarianism. Of course, we‘re not just talking

    about wealth, but also opportunities creating by

    good nurturers. This has a problem in that bettering

    one‘s family‘s fortunes is a primary incentive that

    we‘d be tampering with.

    4. Fineman on the privatization of dependency

    a. This norm has effect of promoting traditional gender

    rolesforces women to stay home to take care of family b. Has stigmatizing effect on those who cannot provide for all

    of family‘s needs (e.g., single mothers)

    c. Privatization of dependency is a myth:

    i. State already provides for families in many ways,

    but they‘re just not perceived as payments to the

    family (e.g., tax benefits vs. welfare payments) d. Is the privatization of dependency really a problem?

    i. If we eliminate it, we‘ll get larger families

    ii. Subsidies provided for child rearing (as opposed to

    cash to pay household expenses) aren‘t going to be

    as good as what family provides

    iii. We‘ll get homogenized children who will be

    unwilling to support their own families in the future

    II. The Common Law of Marriage

    a. Status/Contract at Common Law

    i. The contract to marry

    1. Though there are some limits (e.g., no polygamy, incest, etc.), this

    area generally covered by contract law

    2. Capacity and Intent to Marry

    a. Void and Voidable Marriages

    i. Void marriagelegal nullity, incapable of

    possessing any marital consequences; thus, it can

    never ratified and can be collaterally attacked by rdeither ―spouse,‖ by any interested 3 party, or by

    the state—even after the death of either ―spouse.‖

    1. Examples: same sex marriage, polygamous

    marriage, incestuous marriage.

    ii. Voidable marriagevalid unless annulled by either

    spouse. Cannot be annulled after death of either

    spouse, nor can anyone other than spouse attack it.

    1. Examples: underage marriage, fraudulent

    marriage, marriage under duress, marriage

    to a mental incompetent, sham marriage,

    marriage in jest. In some states, marriage

    can also be annulled for: natural/incurable

    impotency, marriage to felon/prostitute,

    marriage to spouse who is pregnant or who

    has recently impregnated another woman.

    2. Fraudulent marriage(1) there must be

    material fraud and (2) the fraud must affect

    the essentials of the present marriage (i.e.,

    must adversely affect the possibility of

    normal marital cohabitation).

    a. Examples of sufficient fraud: lying

    about an intent not to have

    sex/children, concealment of

    impotency/STD, concealment of

    pregnancy by another, lying about

    one‘s religious beliefs

    b. Examples of insufficient fraud: lying

    about your character, chastity, age,

    health, wealth, citizenship, ancestry,

    number of prior marriages, lack of

    love, that you‘re pregnant by


    3. Breach of Promise to Marryan action at common law that is still around in a few states, but most have eliminated b/c (1) inconsistent w/ no-fault divorce, and (2) possibility of fraud (―fertile field for blackmail and extortion‖).

    4. Premarital gifts

    a. Traditional rule is that donor of gift conditioned on

    marriage can only recover the gift if the engagement is

    dissolved by mutual agreement or if the engagement is

    unjustifiably broken off by the donee.

    b. Modern rule is that such gifts must be returned no matter

    what. Rationale: if fault is irrelevant to modern divorce

    proceedings, so should it also be deemed irrelevant to the

    breaking of the engagement. Also, the purpose of

    engagement period is to allow a couple time to test the

    permanency of their feelings, and so it would be ironic to

    penalize donor for taking steps to prevent unhappy


    5. Premarital agreements (―prenups‖)—originally used mostly by

    older couples getting remarried, but not being used more broadly by couples who want to maintain property they have or will acquire as separate rather than as marital property

    a. Traditional approachcan only affect property rights on

    the death of a spouse (i.e., mutual bar of dower/curtesy,

    surrender of right of election to take against another‘s

    estate). Would only be enforced if (1) agreement provided

    for full disclosure of the parties‘ assets; (2) independent

    legal advice of counsel provided to less empowered spouse.

    i. Worry of overreaching—parties aren‘t negotiating

    at arms length

    ii. Agreements weren‘t enforced if they had contingent

    divorce planning provisions, b/c such provisions

    were thought to ―encourage‖ or ―promote‖ divorce.

    This had undesirable consequence of invalidating

    whole agreement.

    b. Modern approachdivorce planning provisions enforced if

    (1) contractual terms are fair and (2) contract made w/ full

    disclosure of parties‘ worth.

    i. Rationalesuch agreements promote rather than

    reduce marital stability by defining the expectations

    and responsibilities of the parties

    c. Uniform Premarital Agreement Act

    i. Child support rights cannot be bargained around;

    nor can spousal support be so low that spouse

    qualifies for public assistance

    ii. Agreements unenforceable if:

    1. the party didn‘t execute the agreement

    voluntarily, or

    2. the agreement was unconscionable when it

    was executed if a party:

    a. wasn‘t provided w/ fair/reasonable

    disclosure of property/financial

    obligations of other party,

    b. didn‘t voluntarily and expressly

    waive, in writing, such disclosure,


    c. didn‘t have adequate knowledge of

    the property/financial obligations of

    the other party.

    ii. The status of being married

    1. Since marriage is a legal status based upon contract, there are three

    parties to any marriage: husband, wife, and the state, and public policy of the state is to regulate marriage based upon the general welfare of its citizens.

    2. In pretty much every area that‘s not property-based, the contract to

    marry disappears into the status of being married, whose terms are set by state and unalterable.

    a. Rationale for status rules as opposed to contract rules

    marriage is too important a link between man and

    god/society for people to alter

    3. Terms at common law (see grounds for void/voidable marriages above):

    a. No divorce w/out cause (e.g., adultery)

i. Rationale for restrictions on divorcepeople know

    these status rules in advance

    b. Subsequent incapacity of one spouse doesn‘t end marriage

    c. Support Rights and Obligations

    i. Husband had duty to provide support to wife (and

    she had corresponding duty to provide household


    ii. Can‘t directly enforce the duty in court

    1. Rationale: the living standards of a family

    are a matter of concern to the household and

    not for the courts to determine (i.e., notions

    of family autonomy and privacy, coupled

    with apprehensions that courts would be

    overburdened with ―trivial‖ family matters if

    family members were provided a legal

    forum for airing grievances against each


    2. It is consonant w/ the idea that women never

    have right to cash (just like wives not having

    rights to own wages), which is again

    designed to increase man‘s rights vis a vis

    their wives.

    iii. Doctrine of necessarieswife/child could purchase

    any essential good/service on husband‘s credit and

    husband became directly liable to the provider of

    these necessary items

    1. Family‘s economic status/standard of living

    and husband‘s ability to provide defined

    scope of doctrine

    2. Merchants can‘t recover when items

    furnished gratuitously, when husband had

    already provided necessaries, or when wife

    wrongfully lived apart from husband.

    3. Consequences of not making duty to support

    directly enforceable:

    a. Limited practical applicationrisky

    for merchants

    iv. Separate Maintenancec/l doctrine that permitted

    wife to sue her husband for non-support during the

    spouses‘ separation while they remained legally


    v. Family support statutes

    1. Family Expense Statutes

    a. Allows creditor to execute against

    either spouse‘s property to collect

    debts incurred for necessary family

    expenses (i.e., a codification of the

    doctrine of necessaries).

    2. Criminal Non-Support Statutes

    a. Only come into play in drastic

    caseswhere spouse/child left

    completely w/out means of

    support/food/clothes/housing. Most

    also require abandonment in addition

    to non-support (thus, don‘t apply

    when spouses living under same

    roof). D can‘t be convicted for non-

    support unless capable of providing

    that support.

    b. Purpose is to protect the public, not

    the deserted spouse.

    c. Criticismself-defeating: Ds won‘t

    be able to provide support for their

    families if they are jailed. But

    statutes have dual purpose of

    punishing past behavior and acting

    as incentive to D to comply w/

    support obligations in the future.

    b. Common Law Coverture

    i. Legal consequences

    1. Wives cannot sue, claim custody, keep wages, form contracts, must surrender all personal property to husband, must give a realty to husband to manage (and to have curtesy if they have a kid), husband has legal right to her person (including sexmarital rape


    2. Married women still subject to criminal law, unless it‘s a petty crime (in which case husband was responsible).

    a. Any felony or a ―feminine‖ crime (e.g., running a brothel),

    she was individually responsible b/c it was thought husband

    couldn‘t have influenced her.

    3. Ameliorations:

    a. Feme sole estatecourts of equity began to ameliorate c/l

    disabilities by allowing specific property to be held in trust

    for the wife‘s ―sole and separate use.‖ This was a kind of

    estate that had to be created by someone other than the wife

    herself. It allowed wife to retain her property rights after

    marriage and to contract, convey, devise, and sue/be sued

    w/ respect to that property, while safeguarding her from

    exposure to the claims of her husband and his creditors. thb. Married Women‘s Property Acts—passed in late 19

    century. Grant wives the rights to acquire/own/transfer all

    types of real/personal property to the same extent as

    unmarried women. Allow wives to enter into contracts, to

    retain own earnings, to make wills, to sue and be sued, and

    to be responsible for own tortuous/criminal conduct.

    Typically shielded wife‘s assets from husband‘s creditors.

    Since most married women weren‘t employed outside the

    home and brought little property into the marriage, the

    economic position of married women in general wasn‘t

    greatly improved.

    ii. Contemporary explanations

    1. Blackstonea woman was civilly dead (well, suspended

    animation) after she married, b/c her identity merges into that of her husband

    a. Gender hierarchical—he‘s like the benevolent parent and

    she like the child. It‘s not supposed to be a despotic


    b. Blackstone may have been somewhat overstating the

    casewives had certain rights in equity, which were

    defensive safeguards of her separately inherited property (if

    set up by others, e.g., her fatherfeme sole estate).

    2. Reeve (an early American judge)justified civil disabilities on

    wife as means of protecting husband‘s rights to his wife‘s person (e.g., if she can enter into contracts, she can go to debtors prison which would deprive husband of her services). Hence, the rights of husbands are privileged much higher than anyone else‘s rights (except that of state when wife commits a felony).

    iii. Possible modern explanations

    1. Lovesince women have so little rights, we know they‘d only get married for love. In other words, it assures us that people get married for the ―right‖ reason. And it forces every marriage to mirror the ideal marriage (no conflict)

    a. However, there are problems w/ the idea that there‘s no exit

    remedy for women. What if she falls out of love w/ her


    b. Moreover, it‘s not clear that we promote marital love

    through making one party subservient to the other. The

    fact that the husband‘s will always controls undermines


    2. Privacylessens state involvement in private affairs

    a. Marital problems can get to public sphere w/out going to

    courts. Marriage isn‘t made a complete black box by the

    regime of coverture.

    b. Assumes unity of interest between husband and wife. Only

    a certain kind of privacy is recognized: man has right to

    dominate (take her wages, etc.), but she has no reciprocal


    3. Promotes marital stability by giving spouses separate spheres of

    responsibility (husband public sphere and wife domestic sphere).

    It does this by limiting arena of conflicts (coverture coupled w/

    limited divorce). Coverture has result of disabling wife, who then

    has incentive to make her husband happy w/ her so he supports her.

    a. But this assumes that it is the lawsuit rather than the

    conflict itself that destabilizes relationships. 4. Efficiencyvery cheap rule to administer. Encourages people to

    marry only those they think they‘ll get along financially and

    otherwise w/ in the long term.

    a. Efficiency losses, though, in getting around coverture (by

    doctrine of necessity, or faking adultery to get a divorce,


    b. Efficiency losses where husband isn‘t more competent than

    wife in public sphere

    c. Efficiency losses in distorting the market; reduces

    incentives for wives to work b/c they have no right to


    c. Common Law of Marriage Imported to America

    i. Changes:

    1. Abolition of primogeniture

    2. Killing one‘s husband no longer petty treason (as opposed to high

    treason for regicide) th 3. Married Women Property Rights eventually passed in late 19


    III. Common Law of Parenthood

    a. How were legally recognized relations established between adults and their

    biological children?

    i. Motherhood

    1. Legitimate childrenalways recognized as the legal mother of

    anyone they give birth to.

    2. Illegitimate children

    a. Original c/l view was that mothers and bastards wasn‘t a

    family (though custom treated them as family). Bastards

    didn‘t inherit and c/l didn‘t impose upon putative father any

    legal liability to support.

    b. Later, mothers given custody of bastard children.

    i. Rationalepublic welfare: mothers more likely to

    care for their illegitimate children, and so reduce the

    strain on public resourcesprivatizing necessity.

    Also found its root in the ―cult of domesticity‖

    (womanhood being equated w/ motherhood).

    ii. Fatherhood

    1. Legitimate childrenc/l takes the man to be the legal father of any

    child his wife gives birth to while they are married.

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