Family Law Prof Blog

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

Saturday, December 5, 2009

Black: "Same-Sex Marriage and Taxes"

Steve Black (Pierce Law Center), has posted Same-Sex Marriage and Taxes, 22 Brigham Young University Journal of Public Law 327-357 (2008), on SSRN.  Here is the abstract:

Our tax system, while frequently criticized for its complexity, has the flexibility to encourage or influence behavior. It is used to try to influence people‘s spending habits to "jump-start" the economy or encourage businesses to buy more fixed assets. Tax law may even help to channel marital and family decisions. Frequently the proponents of same-sex marriage cite the difference in tax treatment as one of the reasons that same-sex couples receive discriminatory treatment. The tax code contains provisions that benefit only married individuals and families. These benefits provide hundreds to thousands of dollars in tax relief to individuals, but only if those individuals fall into prescribed categories. This article explores those categories, and the extent to which the preference for married couples with children furthers one of the goals of society, which is to perpetuate itself.


December 5, 2009 | Permalink | Comments (6) | TrackBack (0)

Friday, December 4, 2009

Kindregan: Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology

Charles P. Kindregan, Jr. () has posted "Considering Mom:  Maternity and the Model Act Governing Assisted Reproductive Technology," 17 Am. U. J. Gender Soc. Pol'y & L. 601-626 (2009), on SSRN.  Here is the abstract:

The traditional family law doctrine governing maternity was easy to apply. Simply stated the rule for centuries was "the birth mother is the legal mother." However, this rule can no longer operate in the growing field of assisted reproductive technology and especially in collaborative reproduction. Today the birth mother is often a surrogate carrier, who may have a genetic connection to the child she births. However, in most cases the surrogate carrier has no genetic connection to the child. In contrast to the birth mother, the intended mother may be designated as both the legal mother under a contract and actually be the genetic mother. In other cases the intended mother provides an embryo to the surrogate carrier which was produced by a donated egg so that even though she intends to be the legal mother she has no genetic connection to the child. While a heterosexual intended mother may resort to surrogacy to overcome an infertility problem, or because of a history of miscarriage or simply to avoid pregnancy, the growing use of assisted reproduction by same-sex couples raises a number of legal parentage problems which are now coming before the courts. Parentage affects custodial and visitation rights and the law of inheritance. There is little statutory law to assist the courts in such cases. The author examines these problems in the light of the newly proposed A.B.A. Model Act Governing Assisted Reproductive Technology, and also considers the proposed uniform laws governing parentage and probate.


December 4, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Rights for Cohabiting Couples in England?

In England, lawyers and policymakers have continually been debating the rights that should be given to cohabiting couples, if any.  The Law Commission has taken the position that romantic former live-in partners should be forced to pay maintenance if children resulted or if the couple have been living together for at least two years.  See here for the Commission Report, as well as here and here for recent commentary against the Report’s recommendations.  



December 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Tiger Woods Stories Highlight New Forms of Prenups

Th recent stories involving problems in the marriage of Tiger Woods have referred to the type of premarital agreement he entered into with his wife.  The agreement apparently provides that, if the marriage lasts 10 years, his wife gets a specified amount (reportedly $20 million) in the event of a later divorce.  This is an increasingly common type of premarital agreement signed when one partner is much richer than the other at the time of the marriage.   

Premarital agreements can be amended during marriage; it has been reported that, in light of recent events, Mr. Woods has made a much more generous financial offer to his wife if she will agree to refrain from filing for divorce.  The offer reportedly involves a substantial initial payment (reportedly $5 million) if she does not file for divorce immediately and a more substantial payment if the marriage endures for at least a few more years.


December 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 3, 2009

Pouncy: "Marriage and Domestic Partnership: Rationality and Inequality"

Charles R. P. Pouncy (Florida International University College of Law) has posted "Marriage and Domestic Partnership:  Rationality and Inequality," forthcoming in the Temple Political & Civil Rights Law Review, on SSRN.  Here is the abstract:

The efforts of gay and lesbian communities to regularize their relations resulted in competing claims for same-sex marriageand domestic partnerships. This essay argues that the debate between these two forms of organization is tainted by a reliance on analyses provided by neoclassical economic theory. If the decision about which of these institutions presents the best way to structure the relationships of lesbians and gays is dominated by the notion of economic rationality then marriage seems clearly preferable. However, when the focus is changed from the economic interests of the individual to the health and well being of queer communities domestic partnership emerges as the preferable way of organizing gay and lesbian relationships. Thus, the paper argues that queer communities should invest their resources in the development of domestic partnership as a societal institution. Adopting marriageis more likely to support the male privilege and heterosexism inherent in marriage, and will erode the processes of queer culture.


December 3, 2009 in Marriage (impediments) | Permalink | Comments (1) | TrackBack (0)

Australian Mistress Receives $100,000 Because of De Facto Relationship

An Australian court has ordered a man who had an affair with a woman for 20 years while married to pay the mistress more than $100,000 under the country’s new laws that provide people in de facto relationships with certain rights.  Read more here.


December 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 2, 2009

NY Senate Votes Down Gay Marriage Bill, 38-24

See here for the New York times article describing the vote.


December 2, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Increased Risk of Birth Defects with Assisted Reproduction

A new study has found a higher rate of birth defects among babies conceived by assisted reproduction compared to babies conceived naturally.

In the study, almost 3 percent of infants conceived with assisted reproduction were diagnosed with a major birth defect, compared to less than 2 percent of babies conceived naturally, Dr. Darine El-Chaar and colleagues from The Ottawa Hospital in Ontario, Canada and colleagues found.

It's scientifically plausible, the researchers note, that babies born with assisted reproduction would be at greater risk for major birth defects, "given the interventions required in these treatments."

Read the full story from ABC News here.


December 2, 2009 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Babysitter Wins Custody of Child

A unique custody determination was recently made in Chicago, granting custody of a child to his babysitter over his own mother.  Family lawyers in Chicagoland are pretty surprised.  Read more here.  


December 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 1, 2009

Renewed Attention to Cousin Marriages

The New York Times featured this article last week reviving a frequently recurring discussion of prohibitions on marriages involving first cousins.  The article largely recaps the same old issues, but I found the perspective fresh as it related to religion's take on such marriages.


December 1, 2009 in Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Ruling on Paternity Awaited in Michigan

As the Detroit News explains, under current Michigan law:

If the mother is not married, the biological father is responsible for providing support. If the mother is married, then the husband is responsible for the child, not the biological father. Only in divorce can the husband cede his parental rights to the child.

Across the nation, states define fathers in different ways. But most states refuse to guarantee biological fathers a role in the lives of children born or conceived during another couple’s marriage, said Jeanne M. Hannah, a family attorney in Traverse City.

This interpretation of paternity is being challenged in the Michigan courts, with a ruling being awaited eagerly by many.  Read the full article here.


December 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, November 30, 2009

$65 Million in Annual Alimony?

Back in May, we speculated that Italian Prime Minister Silvio Berlusconi's wandering eye might cost him millions but the news of just how much money his estranged wife, Veronica Lario, wants is still shocking. The former actress is seeking 43 million euros (around $65 million) each year in alimony.

Lario, who is 20 years his junior, put up with Berlusconi's indiscretion for many years but earlier this year Berlusconi's attendance at an 18-year-old girl's birthday party seems to have been the final straw.

Read more here and here.


November 30, 2009 in Maintenance (alimony) | Permalink | Comments (0) | TrackBack (0)

Mass Adoptions

In Pennsylvania recently, on National Adoption Day precisely, 49 children were adopted by dozens of families at the Allegheny County Family Court.  Read more here


November 30, 2009 in Adoption | Permalink | Comments (1) | TrackBack (0)

Sunday, November 29, 2009

English Survey Reveals Deep Detriment of Divorce on Children

Family lawyers at the London law firm Mishcon de Reya had commissioned a study of over 4,000 parents and children to mark the 20th anniversary of the Children Act 1989, which aimed to improve the welfare of children dealing with their parents’ separation.  The Guardian summed up these results:

It found that one in three children whose parents had separated or divorced had permanently lost contact with their father. One in 10 of those said the acrimonious process had left them feeling suicidal, a third said they had later found solace in drink and drugs, while 10% admitted to involvement in crime. The survey repeated a widely held belief – that these poor outcomes were due to failures in the family court system, rather than failures in parenting.

The complete results are now available here.  For commentary on this issue, see here, here and here.



November 29, 2009 | Permalink | Comments (3) | TrackBack (0)