Wednesday, March 31, 2010
Law.com discusses a New York trial court's rejection of constructive trust and unjust enrichment arguments to transfer any property interest from a New York ad-exec to his long-time girlfriend:
A prominent advertising executive's alleged promises to support his longtime girlfriend if they broke up are unenforceable because the couple never married, a Manhattan judge has ruled.
In declining to impose a constructive trust, Supreme Court Justice Ellen Gesmer ruled that such statements as "I will always take care of you" and "everything that we put in, we will enjoy together" do not constitute legally binding promises.
"Indeed, even if [the defendant] had made an explicit promise that, upon separation, [the plaintiff] would be entitled to 'equitable distribution' of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people," Justice Gesmer wrote.
"Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple."
The plaintiff, Malin Ericson, filed suit in 2009 against Fabien Baron, the advertising executive and creative director best known for reinventing Burberry, producing racy ads for Calvin Klein and designing Madonna's "Sex" book. According to her complaint, Ericson began working for Baron's fledgling company, Baron & Baron, in 1993, and became romantically involved with Baron in 1994. They moved in together later that year, had a daughter in 1999 and remained a couple until 2007, though they never married.
Ericson alleged that, in addition to the assurances Baron made throughout their relationship, when they broke up, he promised he would treat the separation as if the couple had married.
When Baron purportedly failed to live up to that promise, Ericson filed the present petition seeking a constructive trust on his Mercer Street loft, which was purchased in 1997 for nearly $1.5 million, his Amagansett real estate, bought in 1999 for nearly $1.3 million, and three years of profits from Baron & Baron. The company, according to the decision, has gross annual revenues of some $20 million.
Ericson claimed she contributed to the couple's household and Baron's burgeoning business in reliance on his assurances.
Maxine Eichner (University of North Carolina at Chapel Hill--School of Law) has recently published The Supportive State: Families, Government and America's Political Ideals, Oxford University Press (forthcoming). The
There is broad agreement among politicians and policymakers that the family is a critical institution of American life. Yet the role that the state should play with respect to family ties among citizens remains deeply contested. This controversy over the state’s role undergirds a broad range of public policy debates: Does the state have a responsibility to help resolve conflicts between work and family? Should same-sex marriage be permitted? Should the state encourage marriage and two-parent families? Should parents who receive welfare benefits be required to work? Yet while these individual policy issues are endlessly debated, the underlying theoretical question of the stance that the state should take with families remains largely unexplored.
In The Supportive State: Families, Government, and America's Political Ideals, Maxine Eichner argues that government must take an active
role in supporting families. She contends that the respect for human dignity at
the root of America's liberal democratic
Tuesday, March 30, 2010
A bill pending in the Tennessee legislature to mandate equal sharing of a child's time with each parent (with few exceptions) is sparking serious debate between women's advocacy groups and fathers' rights groups.
On one side is an alliance of women's groups, some judges and the Tennessee Bar Association, who say the change would make divorces tougher to settle and give abusive ex-husbands leverage they shouldn't have. Spending half of the time with each parent would also impose impractical schedules on kids, they say.
On the other side are fathers' rights groups who say kids get deprived of full relationships with both parents. Courts have too long ignored laws calling for custody decisions to be made in children's best interests, they say, and judges are overly influenced by notions about the mother-child bond.
The state's House Children and Family Affairs' Family Justice Subcommittee is scheduled to meet today to review divorce-related data it requested from the Tennessee Bar Association, as it works to determine whether to send the bill to a second committee that could send it to the full House.
Other states, including Missouri, start from a presumption of an even custodial split unless there has been abuse, said Janet Richards, a law professor at the University of Memphis who specializes in child custody matters. Tennessee would be alone in requiring clear, convincing evidence that one parent is unfit before dividing custody unequally, she said.
"This law sets up a standard of proof that's just short of the criminal standard of beyond a reasonable doubt," Richards said.
Committee hearings on the bill have drawn standing-room-only crowds full of mothers wearing saucer-size lapel stickers that read "Vote no on HB 2916" and fathers wearing everything from military fatigues to business suits.
Cianciarulo & David: “Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women”
Marisa Silenzi Cianciarulo (Chapman University--School of Law)
For over a decade, women seeking
asylum from persecution inflicted by their abusive husbands and partners have
found little protection in the United States. During that time,
Monday, March 29, 2010
Joanna Grossman (Hofstra) has posted "Civil Rites: The Gay Marriage Controversy in Historical Perspective" (in Law, Society and History: Essays on Themes in the Legal History and Legal Sociology of Lawrence M. Friedman, Robert Gordon, ed., Cambridge University Press, 2010) on SSRN. Here is the abstract:
This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of stalemate - is not an original one. American states have never been of one mind about the appropriate level of state control over domestic relations, and the federal government has, for the most part, steered clear. Though most conflicts involving state regulation of marriage and divorce had been resolved by the middle of the twentieth century, the battles were long, hard fought, and left an indelible imprint on family law history. In this essay, I argue that the same-sex marriage controversy re-invokes a long history of battles among states over regulation of marriage and divorce, and that lessons from these historical battles are still relevant. The lessons of history - about the legal structures produced in times of panic, the influence of social and economic pressures on law’s development, and the importance of the “separate histories of the law of the fifty states” - cannot be ignored. Nor should we lose sight of Friedman’s recurring observation that social forces, eventually, “shape the legal order.”
Illinois Supreme Court, reversing the appellate court, recently held that,
under the Adoption Act, the time for a parent to make reasonable progress
toward return of child was not tolled by parent’s incarceration. The appellate court had held that because
respondent was incarcerated for 6 months of a 9 month period, she had only 3
months to demonstrate reasonable progress toward the return of her children—an insufficient
amount of time. The case is In re J.L., Minors, No. 108575 (Ill.
Sunday, March 28, 2010
This Article illustrates a paradox in the regulation of families. On the one hand, jurisprudence sanctions biological connection to promote liberty and the private production of value and culture, including the protection of the freedom of non-normative parents to parent. At the same time, however, this regulation serves as a restrictive paradigm for family composition, rigidly adhering to a biologically-evocative two parent maximum that fails to reflect the intricacies of private ordering or political constructions of biological connection. The legal and social disruption of these connections exposes their structural and subjective materiality to individual and group identity and challenges conventional notions of the two-parent family that continue to dominate postmodern family doctrine and theory.
The Article deploys the gendered and racial history and development of adoption law and the lived experience of adoption’s constituents to illustrate the perils and promise of the new postmodern families. Although this critique commends the new regulatory schemes for legitimating lesbian and gay family formation, assisted reproduction, and stepparent-child relationships, it problematizes the exclusive bionormativity of this regulation and suggests that the law should recognize and even legitimate the porousness of these new families. The article proposes a unique and perhaps controversial approach to kinship that pushes against current regulatory trends that privilege social relations at the expense of biological connections.
Saturday, March 27, 2010
From the Christian Science Monitor:
…[R]ecent research suggests gender selection
abortion is on the rise. Actionaid and Canada's International Development Research Centre found in 2008 that in 4 of the 5 states surveyed–Punjab, Haryana,
The reasons why boys are so longed for vary
somewhat by region. In agricultural societies like Nandgaon, boys inherit the
land. In urban India, a trend toward
Underlying the preference for sons is a belief that girls are liabilities who require protection and fat dowries. Though the practice of paying a husband and his family for marrying a girl was banned in 1961, dowry violence – when a woman is abused in her in-laws’ home for paying an insufficient price – is on the rise, according to nongovernmental organizations (NGOs).
Even in families that do not pay dowries, and where
girls may be well educated and lucratively employed, females tend to be viewed
as burdensome because they are perceived as requiring more care and protection
than men, says Puneet Bedi, an obstetrician and campaigner against female
feticide based in New Delhi.
“Everyone wants boys – not just the rich,” he says. “But it is the rich who can easily afford to access the technology.”
Hat Tip: E.R.
Friday, March 26, 2010
Advocates for abused women reacted with outrage Thursday after learning that a Baltimore County judge had enabled a 29-year-old man to be found not guilty of assault when he officiated at the marriage of the defendant and the woman he was accused of beating.
Another judge who waived the required 48-hour waiting period between the issuance of the marriage license and the wedding ceremony did not know the circumstances, according to that judge and a court official.
"It's appalling," said Lisae C. Jordan, general counsel for the Maryland Coalition Against Sexual Assault. "We know to anticipate that behavior from batterers, but to have the judiciary involved in assisting a batterer is just appalling."
Frederick D. Wood had been charged with second-degree assault after his fiancee claimed that on Nov. 29 he hit her in the face, bloodied her nose, kicked her and banged her head against a wall at his home in Middle River.
But when the domestic violence case against him came up for trial on March 10, District Judge G. Darrell Russell Jr. allowed Wood to leave his courtroom in Essex to obtain a marriage license. Before the day was over, Russell married Wood and his fiancee in his chambers. The woman then invoked marital privilege so that she would not be required to testify against her husband, and Russell found Wood not guilty.
"Here's somebody who is clearly injured. And the authority figure, rather than acting neutrally or doing something to help protect her, pushed her into more entanglement with the alleged batterer," said Dorothy Lennig, longtime director of the legal clinic at the House of Ruth, which helps battered women and their children.
Read more here.
Shannon K. Calt (Lewis & Clark Law School) has posted A., B. & C. v.
In Ireland, abortion is illegal
The European Court of Human Rights has never determined whether the Convention protects a right to life of the unborn or conversely any right to an abortion.The case at hand squarely presents an opportunity for the Court to take a position.
This comment focuses on Irish and
European Court of Human Rights abortion law and the impending decision in A.,
B. & C. v. Ireland. I conclude that - based upon the Court's own jurisprudence - the European Court
of Human Rights is very likely to declare that Ireland's nearly absolute
abortion ban and the resultant effects of Irish law did and continue to violate
rights the Court has already deemed protected by the European Convention on
Human Rights. The Court will likely embrace one of two possible holdings.
First, the Court could find that Ireland's abortion ban causes
This comment is nearly complete and is currently being edited by the staff of the Lewis & Clark Law Review.
Thursday, March 25, 2010
Miriam Smith (York University) has posted "Gender Politics and the Same-Sex Marriage Debate in the United States" on SSRN. Here is the abstract:
This paper explores policy and legal debates over same-sex marriage in the United States, focusing on the indirect effects of the struggle over same-sex marriage and how these implicate the interests of women, including women in heterosexual relationships. The paper highlights the effects of the institutional structures of American politics, which have shaped the same-sex marriage debate in particular ways, privileging an incremental path of policy evolution across the states. This has forced US state courts to engage repeatedly with the legal arguments over same-sex relationship recognition and marriage and, in doing so, courts have increasingly cast the heterosexual nuclear family as a fragile edifice in need of state protection. The paper argues that we must move beyond thinking of same-sex marriage and relationship recognition as struggles that pit allegedly normalized or assimilated same-sex couples against queer politics and sensibilities and, rather, recognize the increasingly complex gender politics of same-sex marriage and relationship recognition, a politics that implicates groups beyond the LGBT community. In doing so, the paper argues that struggles over same-sex marriage are much more than simply struggles for recognition by LGBT communities but, rather, that they are the canary in the mineshaft of broad and profound shifts in gender relations.
An Illinois appellate court recently held that it is error for a court to restrain the Department of Healthcare and Family Services from enforcing child support arrearage against a parent when the Department did not unequivocally agree to modification of the time for payment of support or waiver of the vested right to collect the arrearage by means beyond withholding employment income. The case is In re Marriage of Heady, No. 2-09-0022 (Ill. App. Ct. March 1, 2010) and the opinion is available here.
Wednesday, March 24, 2010
A North Carolina jury last week awarded a wife a $9 million judgment against her husband's mistress, a relatively rare alienation of affections award likely to be appealed.
Cynthia Shackelford's story could have been no different than that of any other aggrieved wife: The North Carolina woman, 60, thought her husband Allan was deeply in love with her. Then came his late nights at the office and suspicious charges on his credit card and cell phone bills. And finally, a private investigator confirmed what she had feared: Her husband, she said, was having an affair.
But Shackelford's story has a $9 million twist. Under centuries-old North Carolina case law, Shackelford sued her husband's alleged mistress, Anne Lundquist, for "alienation of affection," charging that the woman broke up her 33-year marriage.
Last week, Shackelford won. A jury awarded her $5 million in compensatory damages and $4 million in punitive damages to be paid by Lundquist.
A former teacher, Shackelford said she gave up that career to raise the couple's two children and now, at 60, her job options are limited.
Shackelford's lawyer, William Jordan, said her husband was ordered to pay her $5,000 a month in alimony, but he has yet to do so. That may be part of the reason that the jury in last week's case, Jordan said, opted to provide his client such a large award.
But it's unclear whether Cynthia Shackelford will ever see any of the $9 million she's now owed by Lundquist. Lundquist, who did not appear at last week's trial, told The Greensboro News & Record that she plans to appeal the case.
"I'm so caught off guard by everything," she said. "I don't have a lot of money, so where this $9 million comes from is kind of hysterical."
Scant funds by alleged cheaters is one reason why many North Carolina alienation of affection claims never make it to court, Rosen said.
"They're not worth suing most of the time," he said. "For this to really work out, you've got to have a paramour [who] has substantial assets."
Cynthia Shackelford, who owes tens of thousands of dollars in legal bills, said she hopes to recover at least some money from Lundquist.
But she said she's also focused on something more intangible -- spreading awareness about the harm posed by adultery.
Read more here.
A remarkable story from CNN:
Seoul, South Korea (CNN)--Police have arrested a South Korean couple whose toddler starved to death while they were raising a virtual child online, authorities said.
The couple fed their 3-month-old daughter once a
day between marathon stretches in a local Internet cafe, where they were
raising a virtual child in the fantasy role-playing game Prius Online, police
told local reporters Friday.
Prius Online is a 3-D game in which players nurture an online companion, Anima, a young girl with mysterious powers who grows and increases her skills as the game progresses.
Police have not identified the 41-year-old father
and 25-year-old mother, who lived in Suwon, a suburb south of Seoul. But the father apologized, speaking to reporters.
"I wish that she hadn't got sick and that she will live well in heaven forever. And as the father, I am sorry," he said.
The baby reportedly died five months ago.
Read more here.
Tuesday, March 23, 2010
Excellent article in The New Yorker yesterday about the marriage counseling industry and its origins:
Marriage in America is in disarray, or so they say. Americans, among the marryingest people in the world, are also the divorcingest. Even during the downturn, business is up at eHarmony, which has taken credit for one out of every fifty weddings in the United States, but “The State of Our Unions,” an annual report issued jointly by the National Marriage Project and the Institute for American Values, warns of a “mancession”: in a lousy economy, more men than usual are working fewer hours than their wives, making for unhappier husbands and angrier rows. A spike in the divorce rate is anticipated, although this may be mitigated by the fact that divorce isn’t cheap and people are broke. You might think that the mancession would also foretell a falloff in couples counselling, which isn’t cheap, either, but there’s no sign of a, ah, therapycession.
Campaigns to defend, protect, and improve marriage have been around for a long time. They’re usually tangled together. They even share a family history. David Popenoe, a founder of the National Marriage Project, is the son of Paul Popenoe, the father of marriage counselling, who is best remembered for the Ladies’ Home Journal feature “Can This Marriage Be Saved?” It’s still running. For decades, the stories in “Can This Marriage Be Saved?” came from Paul Popenoe’s American Institute of Family Relations, based in Los Angeles, the country’s leading marriage clinic. Reporters called it “the Mayo Clinic of family problems.” At its height, in the nineteen-fifties, Popenoe’s empire also included stacks of marriage manuals; a syndicated newspaper column, “Modern Marriage”; a radio program, “Love and Marriage”; and a stint as a judge on a television show, “Divorce Hearing.” People called him Mr. Marriage.
They also called him Dr. Popenoe, even though his only academic degree was an honorary one. For a time, he counselled more than a thousand couples a year. Consider a case published in 1953: Dick is about to leave his wife, Andrea, for another woman. He is bored with Andrea. “Living with her is like being aboard that ship that cruised forever between the ports of Tedium and Monotony,” he says. Can this marriage be saved? You bet. At Popenoe’s clinic, Andrea is urged to make herself more interesting. She learns how to make better conversation, goes on a strict diet, and loses eight pounds. The affair is averted.
Popenoe’s business launched an industry; marriage clinics popped up all over the country. They are popping up still. The American Association for Marriage and Family Therapy, founded in 1942, has some twenty-four thousand members, although the actual number of therapists who see couples is much higher. Up to eighty per cent of therapists practice couples therapy. Today, something like forty per cent of would-be husbands and wives receive premarital counselling, often pastoral, and millions of married couples seek therapy. Doubtless, many receive a great deal of help, expert and caring. Nevertheless, a 1995 Consumer Reports survey ranked marriage counsellors last, among providers of mental-health services, in achieving results. And, as Rebecca L. Davis observes in an astute, engaging, and disturbing history, “More Perfect Unions: The American Search for Marital Bliss” (Harvard; $29.95), the rise of couples counselling has both coincided with and contributed to a larger shift in American life: heightened expectations for marriage as a means of self-expression and personal fulfillment. That would seem to make for an endlessly exploitable clientele, especially given that there’s not much profit in pointing out that some things—like the unglamorous and blessed ordinariness of buttering the toast every morning for someone you’re terribly fond of—just don’t get any better. Not everything admits of improvement.
Read the full article here.
Trinder, Firth, & Jenks: “‘So Presumably Things Have Moved on Since Then?’ the Management of Risk Allegations in Child Contact Dispute”
Liz Trinder, Alan Firth, & Christopher Jenks have posted ‘So Presumably Things Have Moved on Since Then?’ the Management of Risk Allegations in Child Contact Dispute, 24 International Journal of Law, Policy and the Family 29 (2010) on SSRN. Here is the abstract:
Over the past decade, considerable efforts have been made to ensure that domestic violence and child protection issues are identified, assessed, and managed appropriately within the family justice system. These efforts follow sustained criticism that allegations of harm have been previously overlooked or marginalised within court processes, including in private law cases concerning residence and contact disputes following parental separation. In this article, however, we argue that allegations of harm continue to be marginalised in court-based dispute resolution. Our findings are based on a detailed study of 15 in-court conciliation or court-based dispute resolution sessions. We use conversation analysis to examine in detail precisely how allegations are overlooked or downgraded. We find that conciliators routinely ignore, reframe, or reject allegations unless there is an existing external evidence to support the claim. However, the precise way in which marginalisation occurs is contextual and interactional, shaped not least by the specificity or persistence of allegations presented by parents. We suggest that the conciliator's handling of allegations reflects a particular understanding of their institutional role and tasks that centre upon settlement, contact, and case processing seemingly at the expense of risk management.
Monday, March 22, 2010
England's highest court is hearing argument today in a case between a German paper industry heiress and her French ex-husband about the enforceability of a prenuptial agreement they signed in advance of their 1998 marriage.
At stake in the legal tussle between Katrin Radmacher, heiress to a paper industry fortune, and her French ex-husband Nicolas Granatino, is a settlement worth millions of pounds and the status of pre-nuptial agreements in English law.
A lower court in 2008 awarded Granatino 5.9 million pounds but Radmacher appealed, citing an agreement signed in Germany in 1998 before the couple married in London that stipulated he would get nothing if the pair divorced.
In a landmark decision, the Court of Appeal ruled last July that the pre-nuptial agreement was valid, reducing Granatino's settlement to 1 million pounds.
Before that ruling, English courts did not recognise such agreements, in which couples decide before their marriage how they would split their assets in the event of a divorce.
The hearing is scheduled to last two days, with a decision due several weeks later.
The couple's marriage began to break down in 2003 after Granatino gave up an investment banking job that Radmacher said paid him up to 330,000 pounds a year, to become a biotechnology researcher at Oxford University earning 30,000 pounds a year.
Read more here.
There is an interdisciplinary conference at the
At the conference, check out Constitutional Law Prof Blog’s Ruthann Robson’s presentation of “UnSettled,” which “explores the links and dissonances amongst five colonial/post-colonial societies (including Australia, Canada, New Zealand,
Sunday, March 21, 2010
This piece, a short entry in The Child: An Encyclopedic Companion, examines the legal regulation of pregnant women. In particular, the article discusses whether and under what circumstances the state can force pregnant women to undergo unwanted medical treatments or physically restrain or punish pregnant women for engaging in otherwise legal conduct when the state believes that these interventions are necessary to protect the fetus from potential harms.
Saturday, March 20, 2010
Women who enjoy catching a couple of extra zzzzzz’s will be happy to learn that they may be advancing women’s causes by doing so, as sleep has been classified as the next feminist issue. According to TimesOnline:
Just as Virginia Woolf noted in A Room of One’s
Own that one can’t “think well, write well, love well” if one has not
“dined well”, so it would seem that women in particular can’t function well if
they haven’t slept well. Two of America's
Arianna Huffington, the powerhouse publisher of The Huffington Post, and Cindi Leive, the equally indomitable publisher of Glamour, have joined forces to identify women’s sleep deprivation as “the next feminist issue”. They cite studies that indicate that women are more sleep-deprived than men, including one that says American women are getting 90 minutes less than the seven to eight hours recommended for someone to be well and perform well.