Family Law Prof Blog

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

Wednesday, December 8, 2010

Bix: “Private Ordering and Family Law”

Brian Bix (University of Minnesota Law School) has posted Private Ordering and Family Law, Journal of the American Academy of Matrimonial Lawyers (forthcoming 2010) on SSRN.  Here is the abstract:

Until recently in American family law (and the family law of most countries), private arrangements to alter the legal rules surrounding family status were rarely enforced. There was, of course, “private ordering” of a basic sort: e.g., one chose whether to marry or not, and whom to marry, but once one married, the legally enforceable rules of marriage, the ability to exit through divorce or annulment, the financial obligations upon divorce, and so on, were all set by the state, which might also limit the power of the parties to distribute their own property upon death, as with a spouse’s “statutory share.” Similarly with parenthood: one could choose whether to have (and whether to adopt) children, but once one was a parent, one’s obligations and rights were set by the state, which would also determine the limited circumstances and set terms under which one could surrender parental rights to a child.

Much has changed in recent decades, with American states increasingly allowing different types of private ordering in a range of different family law areas. One can speak of premarital agreements, marital agreements, separation agreements, open adoption agreements, co-parenting agreements, agreements on the disposition of frozen embryos, and agreements to arbitrate disputes arising out of any of the above agreements. This article offers an overview of the changes and limits to private ordering in American family law, while considering the extent to which these changes have been a positive development.


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Prenuptials are increasingly common in Sydney Australia as a way of giving couples a greater say in their intentions. It is an interesting balance between State, Federal and 'personal' law.

Posted by: Sydney Lawyer | Dec 19, 2010 1:17:09 PM

I think family laws are different according to different countries. But USA has started providing good services towards family laws. Very nice article.

Posted by: family law sydney | Apr 19, 2011 10:26:05 PM

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