Saturday, November 21, 2009
The IV World Congress on
theme of the IV World Congress
is “The best interest of children and
adolescents: Well-being and development in
the new world economic order.” The program
will be structured around six general
thematic areas: poverty, education, health,
participation, identity and violence. These
have been drawn from the considerations
and conclusions of the Barcelona
Declaration authored by the children and adolescents who participated in the III
World Congress on Child and Adolescent
Rights in 2007. You may access www.
World Congress on Child and Adolescent
Rights is being organized by Defensores
PROCDN, a nonprofit volunteer based
organization promoting the rights of children in Puerto Rico. Please take note and feel free to forward this information.
*No passport is required for U.S. citizens traveling between the United States and Puerto Rico.
Friday, November 20, 2009
Franck: "'So Hedge Therefore, Who Join Forever’: Understanding the Interrelation of No-Fault Divorce and Premarital Contracts"
Jens-Uwe Franck has posted 'So Hedge Therefore, Who Join Forever’: Understanding the Interrelation of No-Fault Divorce and Premarital Contracts, 23 International Journal of Law, Policy and the Family 235 (2009), on SSRN. Here is the abstract:
This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and - at least with regard to spousal support - the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today's perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault divorce.
Thursday, November 19, 2009
Gardina: "The Tipping Point: Legal Epidemics, Constitutional Doctrine, and the Defense of Marriage Act"
Using Malcolm Gladwell's book "The Tipping Point" as a jumping off point, this brief article discuss whether the Supreme Court has reached a "tipping point" with regards to equal marriage and its benefits. The article suggests that to determine whether the Court has reached the tipping point — and more specifically, whether the constitutional question has reached the Court at the right time — requires that one look beyond the Court’s precedent and examine the “national conversation.” The article traces other significant shifts in constitutional doctrine and suggests that the Court’s other tipping points have paralleled shifts in societal norms. the article ultimately concludes that the time is not right for a Supreme Court review of the Defense of Marriage Act. The “national conversation” about marriage equality is in its infancy when compared to race and gender issues. Equal marriage remains a deeply divisive issue. A recent poll shows that a majority of Americans are still resistant to extending marriage rights to same-sex couples. A vast majority of states either have constitutional amendments or statutes that explicitly define marriage as between one man and one woman. If the Justices are looking for evidence of a societal tipping point through legislative changes, as they did in Lawrence v. Texas and Loving v. Virginia, they will not find it yet.
Recently, Timeline did this clip about the increased use of man-gagement rings—or engagement rings for men. This trend proves that engagement rings, often the subject of litigation battles upon broken engagements, have come far since their initial purpose of showing commitment in exchange for a woman’s virginity. See here, here, and here. However, man-gagement rings raise interesting questions regarding people’s perception of engagement. In reality, a couple’s engagement has few, if any, legal consequences. Furthermore, one argument for the man-gagement ring is to keep men faithful, although sometimes even a wedding ring can’t do the trick. Finally, can the man-gagement ring really serve, as it does for some, as a symbol of equitable marriage? This blogger can't help but to be flummoxed.
Wednesday, November 18, 2009
The NY Times reports on the impact more women in the work force is having on child custody rulings.
There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.
“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”
Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.
Read the full article here.
The Illinois Supreme Court has determined that the legislature cannot amend a statute of limitations so as to revive causes of action that had expired under a previous version of the legislature. This will no doubt impede the litigation of childhood sexual abuse claims, as it has in this particular case.
See Doe v. Diocese of Dallas, 2009 WL 3063427 (
Tuesday, November 17, 2009
California Court Rules that, When a Child Support Obligor Remarries, in connection with a Motion to Modify the Court Should Consider 50% of the Income from Community Property Assets
Until 1994, if a child support obligor remarried, a California court had the discretion to consider the income of a new spouse in connection with a motion to modify support. In 1994 this rule was changed so that the income of a new spouse generally was to be ignored. In Anastasi v. Knowles, a California Court of Appeals has to consider how to deal with income from community property assets owned by the couple when motion to modify support was filed. The trial court included all the income from community property assets in the child support modification. The court of appeal disagreed, holding that only 50% of the income should be considered.
Jennifer S. Hendricks has posted “Contingent Equal Protection: Reaching for Equality After Ricci and PICS,” 16 Michigan Journal of Gender & Law__, (2009), on SSRN. Here is the abstract:
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de facto inequality. Recent developments in affirmative action cases, however, have made it increasingly plausible for the conservative plurality to claim that substantive equality is not even a legitimate state interest. The Article demonstrates that this claim is nonetheless a radical departure from existing precedent across a spectrum of equal protection cases. It explores the consequences of the plurality's view, including the threat to remedial programs ranging from Title VII's disparate impact rules to the Family and Medical Leave Act. It also suggests some possibilities for developing the opposite view into a more robust and substantive theory of equality enforceable under the Equal Protection Clause.
Perhaps this is one question I would ask before dumpster diving and sifting
through 10-tons of trash in search of a pair of wedding rings. However, one town in
Monday, November 16, 2009
This recent article in the Atlantic Monthly describes an emerging theory in behavioral science called, among other names, the “orchid hypothesis.” This theory posits that the genes associated with ADHD, depression, and other anti-social behavior can actually provide stability and success for people if they, as children, were raised in stable environments. In other words, “bad” genes might have far-reaching benefits given a “good” childhood. This theory has great implications for parenting and welfare policy.
Hat Tip: Elizabeth Ryznar
Kraft: Empirical Study of "Effect of Labor Division between Wife and Husband on the Risk of Divorce: Evidence from German Data"
Kornelius Kraft (University of Dortmund, Department of Economics) and Stefanie Neimann have posted "Effect of Labor Division between Wife and Husband on the Risk of Divorce: Evidence from German Data" on SSRN. Here is the abstract:
Using German panel data from 1984 to 2007, we analyze the impact of labor division between husband and wife on the risk of divorce. Gary Becker's theory of marriage predicts that specialization in domestic and market work, respectively, reduces the risk of separation. Traditionally, the breadwinner role is assigned to the husband, however, female labor force participation and their wages have risen substantially. Our results suggest that there are gender-specific differences, e.g. female breadwinner-couples have a substantially higher risk of divorce than male breadwinner-couples. In contrast, the equal division does not significantly alter the probability of separation.
In November 2008, in Poland, the Family and Guardianship Code of 25th February 1964 (hereinafter ‘Family Code’) was changed. An amendment came into force on 13th June 2009, mainly concerning relations between children and parents and introducing significant changes in the establishment of motherhood and fatherhood, parental authority, contacts with children, alimony and guardianship of minors.
Previously, the Family Code did not have any provisions regarding the establishment of motherhood. However, the development of new techniques of artificial insemination questioned and weakened the dictum mater simper certa est, making some changes necessary. According to the present wording of Family Code, the mother of the child is the woman who gave birth to the child.
Parental authority has been changed in this way, taking into
consideration the partnership between children and parents. On the one hand, in cases when a child is able
to act alone, the child should listen to the opinions and recommendations of the
parents. On the other hand, parents
should listen to the child before making any decisions regarding the child’s assets
or the child personally.
The right to contact belongs to each parent regardless of parental authority. Parents are able to make an agreement establishing the rules regulating each parent’s manner of contact with their common children.
A child may claim subsidies from the parents as long as the child cannot
support himself. However, the parent of
a child coming of age may defeat the claim by showing that the subsidies create
excessive detriment and the child does not attempt to gain the qualifications
that would enable him to support himself.
Posted by Guest Blogger Anna Stępień-Sporek, Associate Professsor, University of Gdańsk School of Law
Sunday, November 15, 2009
Georgia Clarifies that Disclosure of Financial Information Is Required for an Enforceable Premarital Agreement
In Quarles v. Quarles, the Georgia Supreme court reversed a trial court's order granting the husband's motion for summary judgment that the premarital agreement was enforceable. The Supreme Court found that the evidence was disputed regarding whether the husband adequately disclosed his financial information in connection with the execution of the agreement. Because of this, due to the requirement under Georgia law that the parties exchange adequate financial information before execution, the husband's motion for summary judgment should not have been granted.