Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, October 17, 2009

Increased Use of Premarital Agreements in England

We have recently covered (here and here) the preference in English law for equal property division between divorcing spouses.  Of course, one way to avoid statutory and legislative defaults is through contract, in the form of premarital agreements.  At the present time, however, such agreements are not legally enforceable in England, although they may certainly guide the courts in their ultimate decisions.  The unenforceability of premarital agreements may help explain the traditional rarity of such agreements between prospective spouses in England.  However, one of our readers recently pointed out that the English Law Commission is re-examining marital property agreements, with a report and draft Bill expected in late 2012.  There has been another development as well: English family lawyers are now seeing a tenfold increase of the use of such agreements. 

Will a Tiffany’s one-carat diamond soon come standard with a premarital agreement in England?


October 17, 2009 in Antenuptial (postnuptial) Contracts | Permalink | Comments (0) | TrackBack (0)

Important UIFSA Case Decided by the Indiana Supreme Court

The Indiana Supreme Court has reversed a ruling by the court of appeals that the Full Faith and Credit for Child Support Orders Act preempted UIFSA as to rules for continuing jurisdiction to modify.  The Supreme Court interpreted them in a way that was not in conflict.


October 17, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, October 16, 2009

Symposium on Unmarried Couple Adoption Bans

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 speak.


October 16, 2009 in Adoption | Permalink | Comments (0) | TrackBack (0)

Interracial Couple Denied Marriage License in Louisiana

I thought I had seen it all in family law.  But this one has still managed to shock me.  The New York Times reports:

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.

Read the full story here.


October 16, 2009 in Marriage (impediments) | Permalink | Comments (3) | TrackBack (0)

Thursday, October 15, 2009

Spiritual, Not Medical, Treatment of Kids' Illnesses

Wisconsin parents failing to seek medical attention for their 11-year-old daughter, who subsequently died from untreated diabetes, were convicted of second-degree reckless homicide and recently sentenced to 30 days in jail each year for the next 6 years, as well as 10 years’ probation.  Prosecutors said that the parents prayed instead of seeking medical treatment, even when their daughter stopped being able to walk or talk.  The question of whether states should allow parents to practice only spiritual treatment is not a new one, but the debate has been renewed by this case, with many lawmakers pledging to take a fresh look at laws in this area.



Hat Tip: Elizabeth Ryznar

October 15, 2009 in Child Abuse | Permalink | Comments (1) | TrackBack (0)

NYU Press Book Series on Families, Law, and Society - Proposals Sought

NYU Press is beginning a new book series on Families, Law, and Society.  The series will be edited by Nancy Dowd, the David Levin Chair in Family Law and Director of the Center on Children and Families at the University of Florida Levin College of Law.

Families, Law, and Society will publish innovative work exploring the social, legal, and political issues that lie at the center of conversations about the family in modern life . . . The series aims to address the wide range of issues that inform and influence family law in both the private realm (e.g., divorce, adoption, marriage) and public domain (e.g., welfare, child abuse, juvenile justice). While interdisciplinary research is encouraged, the series editor will strive to ensure that all books published in Families, Law, and Society consider the interrelationship between family and law, and critically examine the social and cultural changes in the lived realities of families and the relationship between families and the law.

Proposals for book contributions to the series are sought.  Read the full announcement and see the submission guidelines here:  Download NYU Book Series Announcement.


October 15, 2009 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 14, 2009

Marriage as a Lottery?

Some people may think they win the lottery solely by marrying their soul mates.  Others may think, in the age of high divorce rates, that to achieve life-long marriage is to hit the jackpot.  A recent newspaper article in Bermuda, however, suggests that divorce laws favoring near equal property division between spouses, particularly in the United Kingdom (as covered in a recent post), transform marriage into a big lotto payday upon divorce.  From the view of higher income spouses, therefore, one needs to potentially pay to play in the marriage game.  From the view of lower income spouses, there may be an incentive to view marriage as a career choice, or lotto ticket.  Marriage as a lottery--quite the multi-layered metaphor!

Luckily, it's still a more pleasant lottery to play than Shirley Jackson's.



October 14, 2009 in Property Division | Permalink | Comments (0) | TrackBack (0)

California Legislation Recognizes Some Same Sex Marriages

CNN reports on a California bill quietly signed into law on October 11, 2009:

California Gov. Arnold Schwarzenegger has signed legislation that requires the state to recognize same-sex marriages performed in other states while such marriages were legal in California.

California will recognize same-sex marriages from a period of time before Proposition 8 was enacted.

Same-sex marriages performed elsewhere between June 16, 2008, and November 5, 2008, are to be legally recognized, as are in-state marriages performed during that time.

The end date represents when a ballot initiative, Proposition 8, added a ban on same-sex marriage to the state constitution.

Proposition 8 bars the state from recognizing any marriage performed outside the state outside those dates. The state Supreme Court ruled after the proposition passed that marriages performed before the ban would remain on the books.

But Senate Bill 54 splits a legal hair and requires the state to recognize such marriages as "unions," providing "the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state," the governor said.


October 14, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 13, 2009

University of Houston Conference on Children, Sex and the Law

The University of Houston will offer a conference on children, sex and the law on October 23, 2009. Presenters will be Frank Zimring, Seth, Kreimer, Jenifer Drobac, Ellen Marrus and Sacca Coupet. 


October 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, October 12, 2009

The Tender Years Presumption

Courts and legislatures have rejected the presumption that mothers should win custody of their young children in the case of divorce.  Such a presumption, the tender years’ presumption, has been determined to be against public policy that strives to treat the genders equally, as well as in conflict the equal protection clause embedded in the fourteenth amendment.  In practice, however, courts still often treat women more favorably than men in custody disputes.  In the court of public opinion as well, mothers are still often viewed as victims of divorce and are therefore treated with more sympathy and favor—as Jon and Kate (of plus eight fame) seem to continually illustrate.


October 12, 2009 in Custody (parenting plans) | Permalink | Comments (0) | TrackBack (0)

Reflections on Family Law Practice

David Lat of Above the Law has just posted a thread on careers in family law firms.  The post quotes Dahlia Lithwick, Slate’s Supreme Court correspondent, as saying that her time in family law practice “bickering over the pots and pans” made other career options look more appealing.  The post contained some more positive reflections on being a family law practitioner, but, overall, it was probably not family law's best moment.  In your experiences, does the practice of family law deserve the more negative aspects of its reputation?



***This post has been corrected to reflect that in the Above the Law post, family law was not compared to other fields of law specifically, but to other career choices generally.

October 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Call for Papers on Adoption - FRIDAY deadline

The Future of the Family: Modern Challenges in Adoption Law

Sixth Annual Wells Conference on Adoption Law


March 11, 2010

Capital University Law School

Columbus, Ohio


The conference is seeking proposals for presentations and papers emphasizing the following themes:


v      The Impact of the Economic Crisis on Families

Suggested topics include, but are not limited to: available funding for subsidies, decisions to delay adoption, role of the extended family, and impact on the number of children placed for adoption.


v      The Impact of Artificial Reproduction on Families

Suggested topics include, but are not limited to: the state’s role in regulating artificial reproduction, the right not to procreate, legal issues involving unused embryos, and resolution of rights and responsibilities in embryo donation and adoption.


v      Overcoming Barriers to the Creation of Families for Members of the GLBT Community

Suggested topics include, but are not limited to: laws and public policies limiting adoption by GLBT parents, the impact of these laws from the perspective of the child's right to permanence, empirical studies on outcomes for children, and alternatives available when second parent adoptions are not permitted.


Participants are asked to a lead a panel discussion on one of the topics above.  Each topic will have 3-4 panel members who will present 30-45 minutes each, with discussion to follow.  In addition, participants are requested to prepare an article associated with their presentation for publication in the Capital University Law Review next year.  The article would be due on September 1, 2010.


Capital University Law School is home to the National Center for Adoption Law & Policy.  In light of the University’s strong focus on child welfare and adoption law, the Capital University Law Review initiated the Wells Conference on Adoption Law in 2005.  The First Annual Wells Conference was entitled “Illuminating the Child’s Perspective,” and highlighted speakers such as Barbara Bennett Woodhouse, Elizabeth Bartholet, and Martin Guggenheim.  Subsequent topics have included Father’s Rights in Adoption, Hearing the Child’s Voice, and Challenges to Permanency, and have highlighted presentations by Lynn D. Wardle, Katheryn D. Katz, Mary Beck, Cynthia Mabry, and Jini L. Roby.


Please send your proposals to the Wells Conference Committee Chair, Alisa Hardy ( by October 16, 2009. 



October 12, 2009 in Adoption | Permalink | Comments (0) | TrackBack (0)

Why cant U teach me 2 read?

Read  Beth Fertig (senior reporter for WNYC Radio in New York and a regular contributor to National Public Radio) has published Why cant U teach me 2 read? (Farrar, Straus and Giroux, September 2009).  This book examines the American public school system, the right to education, and the legal facets to education.  From the publisher's description:


Why cant U teach me 2 read? is a vivid, stirring, passionately told story of three students who fought for the right to learn to read, and won--only to discover that their efforts to learn to read had hardly begun.

A person who cannot read cannot confidently ride a city bus, shop, take medicine, or hold a job—much less receive e-mail, follow headlines, send text messages, or write a letter to a relative. And yet the best minds of American education cannot agree on the right way for reading to be taught.  In fact, they can hardly settle on a common vocabulary to use in talking about reading. As a result, for a quarter of a century American schools have been riven by what educators call the reading wars, and our young people have been caught in the crossfire.   

Why cant U teach me 2 read? focuses on three such students.  Yamilka, Alejandro, and Antonio all have learning disabilities and all legally challenged the New York City schools for failing to teach them to read by the time they got to high school. When the school system’s own hearing officers ruled in the students’ favor, the city was compelled to pay for the three students, now young adults, to receive intensive private tutoring.

Fertig tells the inspiring, heartbreaking stories of these three young people as they struggle to learn to read before it is too late. At the same time, she tells a story of great change in schools nationwide—where the crush of standardized tests and the presence of technocrats like New York’s mayor, Michael Bloomberg, and his schools chancellor, Joel Klein, have energized teachers and parents to question the meaning of education as never before. And she dramatizes the process of learning to read, showing how the act of reading is nothing short of miraculous.

Along the way, Fertig makes clear that the simple question facing students and teachers alike—How should young people learn to read?—opens onto the broader questions of what schools are really for and why so many of America’s schools are faltering.     

Why cant U teach me 2 read? is a poignant, vital book for the reader in all of us.


October 12, 2009 in Books | Permalink | Comments (0) | TrackBack (0)

Does the Polanski Case Reveal Anything about a Change in U.S. Attitude

A New York Times article on October 11 states that the Polanksi case reveals how much American attitudes have changed regarding sexual relationships between adults and teenagers.  Is this true? 

The article then refers to the movie Manhattan and its depiction of a relationship between an older man and a 17-year-old girl.  The author suggests that the public would be less tolerant today of the view implied in the film that the relationship was not socially objectionable.  Indeed, an executive who was involved in the purchase of Manhattan by United Artists, is quoted as saying that it's unclear whether such a movie could be made today.

It would seem that an instance of sexual contact between an adult male and a 13-year-old girl allegedly involving drugs and alcohol might be perceived to be significantly different from (as depicted in Manhattan) a relationship of some duration between an adult and a girl of 17.  But it may be that as a society we have learned more about the frequency and emotional costs of sexual contact between adults and teenagers.




October 12, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, October 11, 2009

Developments in English Divorce Law

Under English divorce law, there is no distinction between "property division" and "spousal support".  Judges are given great discretion to achieve a "fair" result.  During the past decade, high court judges have reevaluated what this means if the parties have more property than needed for the parties' basic needs.  Until about 2000, in "big money" divorce cases the poorer spouse was awarded enough to provide for his or her "needs," as adjusted to the standard of living during marriage.  The richer spouse kept the rest.  So, one might say that, compared to the U.S., for a rich spouse England was a divorce haven.

In 2000 judges stoped using "need" as the focus and began to use terms such as "equal sharing."  One might comment that equitable distribution came to England (through its courts, not its legislature) about two decades after it was accepted in the U. S.   During the past decade, courts have tried to clarify whether the norm of equal sharing included premarriage acquisitions (to which the answer appears to be, much to the relief of Paul McCartney, no), as well as when an unequal division is appropriate.  This has left English divorce law in a mess.  As one might expect, different trial judges are interpreting these vague new rules in different ways, so forum shopping is rampant.

It is unclear what is next for England.  The present English government seems to have little interest in getting mired in legislative family law reform.  But the current level of confusion also seems to beg for some sort of response. 

  T. O.

October 11, 2009 | Permalink | Comments (2) | TrackBack (0)

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