Family Law Prof Blog

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

Saturday, October 30, 2010

The Womancession?

Naomi Cahn and June Carbone recently wrote to the Huffington Post on whether the recession disproportionately affects men.  An excerpt:

It's time we faced up to the consequences of growing income inequality. In the Great Recession, the top income earners have recovered, while the poor have gotten poorer. And the disparities in family life make things even worse. The average family requires two incomes to get by. In a recession, two incomes may cushion the effects of a layoff. Yet, increasingly, the ability to manage marriage and wage-earning has become a marker of class.

First, let's look at the employment numbers. The Great Recession disproportionately affected construction and manufacturing, and therefore it disproportionately affected men. Between December 2007 and October 2009, non-farm jobs dropped by 5.8 million for men, but only 2.5 million for women. The result produced the largest unemployment gap between men and women in the post-war era.

Second, think about what may happen next. In September of this year, local governments laid off workers at the fastest rate in thirty almost years. The layoffs disproportionately affected those involved in education, a field that includes more women than men. Economists predict that without renewal of stimulus spending or greater assistance to the states, more cuts in government employment should be expected next year. It's clear that a family with two incomes is in a better position to keep some income coming in; a family with one wage-earner is more vulnerable to downturns that affect some sectors more than others.

Read more here.


October 30, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 29, 2010

Call for Papers: Symposium on "Divorcing the Multinational Family"

                University of Oklahoma Law Review
                       February 25, 2011
                       Norman, Oklahoma
     The University of Oklahoma Law Review is accepting 
     scholarly papers related to issues in transnational 
     divorce, such as international child custody and collection 
     of international child support judgments. The University 
     of Oklahoma Law Review will publish accepted papers in its 
     summer 2011 family law symposium issue. Professionals and 
     scholars are invited to submit a working paper.  

     Key Symposium presentations will be made by William Duncan, 
     Deputy Secretary General, Hague Conference on Private 
     International Law; Ann Estin, Aliber Family Chair in Law, 
     University of Iowa; John Sampson, William Benjamin Wynne 
     Professor, University of Texas; Linda Silberman, Martin 
     Lipton Professor of Law, New York University; Linda Elrod, 
     Richard S. Righter Distinguished Professor of Law, Washburn 
     University; and Jeff Atkinson, Lecturer, DePaul University. 
     While the speaking lineup is tentatively set, please let us 
     know if you are interested in speaking as we would strongly 
     consider creating an opening for those who author 
     exceptional papers.  

     Symposium Date and Location: Friday, February 25, 2011 in 
     Norman, Oklahoma at the University of Oklahoma College of 
     Proposals are due by 5:00 pm CST January 10, 2011.
     Email submissions are preferred; the subject line should 
     include "Family Law Symposium Submission."
     Address submission emails to:
     For questions regarding submissions, contact:
     CONTACT:       Michael Waters - Editorial Advisor
                    University of Oklahoma Law Review


October 29, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

FL Family Law Rules of Procedure

The Florida family law rules of procedure have recently undergone some changes.  Read about it here.



October 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

How Many Parents?

The Boston Globe ran a nice piece earlier this week on the optimal number of parents for a child, and whether the law should recognize more than two.  Read it here.


October 28, 2010 | Permalink | Comments (0) | TrackBack (0)

x / x / 200x


GRAND RAPIDS -- For Chad and Barbie Soper, it's all in the numbers.

A triple-dose of rare birth dates for their three children, who were born on 8/8/2008, 9/9/2009 and 10/10/2010.

The Rockford couple's good fortune, capped with Sunday's birth of their daughter, Cearra Nicole, has led to a crush of national and local media attention for the young family.

The couple does not their family to grow again on 11/11/2011.  Read more here.


October 28, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 27, 2010

Huntington: "Familial Norms and Normality"

Clare Huntington (University of Colorado Law School) has posted "Familial Norms and Normality" (59 Emory Law Journal 1103) on SSRN.  Here is the abstract:

Social norms exert a powerful influence on families. They shape major life decisions, such as whether to marry and how many children to have, as well as everyday decisions, such as how to discipline children and divide household labor. Emotion is a defining feature of these familial social norms, giving force and content to norms in contexts as varied as reproductive choice, parenting, and same-sex relationships. These emotion-laden norms do not stand apart from the law. Falling along a continuum of involvement that ranges from direct regulation to choice architecture, state sway over social norms through their emotional valence is an under-recognized aspect of the family-state relationship.

Although scholars have explored aspects of familial social norms, current accounts offer an incomplete picture of both families and family law because they insufficiently account for the elemental relationship between social norms, emotion, and the state. By exploring the confluence of these forces, this Article makes two contributions to the literature. Descriptively, this Article identifies the centrality of emotion in creating and defining familial social norms. First, emotion is often the content of a familial social norm; therefore it is impossible to understand the norm without understanding emotion. Second, emotions can trigger social norms, with particular emotions leading to changes in behavior. Third, familial social norms carry tremendous emotional weight, which explains why the cost of noncompliance can be particularly high in the family context. Finally, the emotion-laden nature of familial social norms complicates any predictive enterprise for law and policy.

Normatively, a more complete understanding of the operation of familial social norms allows for more effective regulation of families. The state should recognize that emotion is a powerful point of entry when it seeks to influence norms and shape behavior. There are risks to this influence, but exposing the uncomfortable reality that the law often tries to manipulate our affective lives creates an opportunity to use this dynamic for more appealing ends, such as cultivating greater tolerance for parental conduct that falls outside dominant norms.


October 27, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Dailey: "Children's Constitutional Rights"

Anne Dailey (University of Connecticut) has posted "Children's Constitutional Rights" (forthcoming Minnesota Law Review) on SSRN.  Here is the abstract:

This Article presents a developmental theory of children’s constitutional rights that focuses on the fundamental role of children’s rights in the socialization process leading to adult autonomy. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decision-making autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack the capacity for autonomous choice. Choice theory not only justifies the long history of denying children rights, but it also serves to explain the recent but growing number of modern Supreme Court cases in which children’s constitutional rights have been recognized. Choice theory regards these newly recognized rights as "autonomy rights," that is, adult rights given to older children based on their increasing capacity for autonomous choice.

As explained in this Article, choice theory falls short as a theory of children’s constitutional rights for two reasons. First, as a descriptive matter, choice theory is simply too narrow. As choice theorists would acknowledge, the theory does not address whole categories of existing rights where the decision-making autonomy of the right-holder is not in issue. Even more limiting, choice theory has no conceptual apparatus for defining children’s rights in terms of children’s future autonomy or for conceiving of children’s rights in socializing terms. Second, as a psychology of decision-making, choice theory rests on an excessively rationalist model of decision-making that ignores numerous core aspects of mature, autonomous choice. Psychological research on decision-making illuminates the broad range of mental skills – cognitive, emotional, and imaginative – that children must acquire in order to become autonomous decision makers. By associating autonomous choice with critical thinking skills learned in school, choice theory ignores the non-cognitive attributes of choice and the family caregiving essential to their development.

This Article proposes a developmental theory of children’s constitutional rights that overcomes the descriptive and psychological limitations of prevailing choice theory while preserving its central commitment to individual autonomy. The developmental theory’s core insight into the importance of caregiving to children’s future autonomy supports recognizing children’s fundamental constitutional rights in the caregiving relationship. As described in this Article, children’s caregiving rights take three basic forms. First are children’s rights under the Due Process Clause to be free from state intervention into established caregiving relationships. Second are children’s rights arising under other constitutional provisions where the rights at issue touch upon their caregiving interests. Third, and most far-reaching, are children’s affirmative constitutional rights to a minimum level of caregiving services from the state. This final category of rights focuses the debate on state support for the caregiving relationships children need to become autonomous adults and citizens. In elaborating a developmental theory of children’s constitutional rights, this Article aims to secure children’s rightful place as full members and future autonomous participants in the constitutional scheme.


October 27, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Getting Fees from the Opponents in a Divorce Case

A recent article in the Illinois Bar Journal addressed receiving fees from the opposing side in divorce.  Read it here.



October 27, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Securing a Maintenance Obligation in IL

An article in the September issue of the Illinois Bar Journal discusses whether a court may order a maintenance-paying spouse to obtain life insurance as security for the obligation:

Illinois law once gave trial judges the discretion to order a party to obtain reasonable security for a maintenance obligation. (1) The current Illinois Marriage and Dissolution of Marriage Act ("dissolution act") no longer specifically provides for such discretion. Recently, a conflict between the appellate districts arose over whether trial courts have the discretion to order a maintenance-paying spouse to obtain life insurance as security for the maintenance obligation.

Read more here.



October 26, 2010 in Maintenance (alimony) | Permalink | Comments (5) | TrackBack (0)

Monday, October 25, 2010

Joslin: "Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology"

Courtney Joslin (UC Davis School of Law) has posted "Protecting Children (?): Marriage, Gender, and Assisted Reproductive Technology" (83 So. Cal. L. Rev. 101) on SSRN.  Here is the abstract:

The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology ("ART"), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other.

This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge - the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children - both marital and nonmarital - born through ART.


October 25, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

The Future for Autistic Children

The Atlantic recently ran a story about the adulthood of autistic children:

As new cases of autism have exploded in recent years—some form of the condition affects about one in 110 children today—efforts have multiplied to understand and accommodate the condition in childhood. But children with autism will become adults with autism, some 500,000 of them in this decade alone. What then? Meet Donald Gray Triplett, 77, of Forest, Mississippi. He was the first person ever diagnosed with autism. And his long, happy, surprising life may hold some answers.

Read more here.



October 25, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, October 24, 2010

Shacking Up and the Divorce Rate

From Newsweek:

Moving in together before marriage used to be associated with a higher risk for divorce. But now, as more unmarried couples than ever before decide to live under the same roof, do they face the same fate?

Sociologists think the calculus may have changed. Part of the difference stems from just who’s deciding to shack up. In the late ’70s, only about a third of people lived together before tying the knot. Those people tended to be less traditional in their beliefs—it was the age of the hippie, after all—and therefore more likely to get divorced, says Pamela Smock, a sociologist at the Population Studies Center at the University of Michigan, Ann Arbor. As cohabiting has come more common across the country, however, the once strong link between “living in sin” and divorce has weakened over time. While some religious groups, such as socially conservative Christians and Orthodox Jews, still frown upon living together before marriage, two thirds of marriages in the U.S. now start as cohabitations. “Something that used to be stigmatized is now becoming the common experience,” Smock says.

Another difference is why couples decide to live together. The ’70s-era domestic partners might have been motivated by free love. But as you might expect in an era of high unemployment and rising poverty rates, it’s often money, not romance, that prompts today’s couples to share an address. “What really stood out was the change in unemployment characteristics,” says Rose Kreider, a family demographer for the U.S. Census who analyzed recent data on the topic. In 2008, 59 percent of cohabiting couples said both partners were employed. That number fell to 49 percent in 2010. Kreider says the survey specifically asked people if they were living with a boyfriend or girlfriend.

As it turns out, money is likely to play a major role in a couple’s prospects for the future, too. Many of the cohabitations that started for economic reasons during the Great Recession are “fragile” and probably won’t result in marriage, says Wendy Manning, associate director of the Center for Family and Demographic Research at Bowling Green State University. That’s because the lower your income, the less likely you are to move from cohabitation to marriage, research has shown. (Of course, walking down the aisle isn’t a goal for everyone) According to Manning’s and Smock’s research, even if couples with less money do end up getting married after cohabiting, they’re still more likely to get divorced.

In tough economic times, financial stress can often trump love. During the Great Depression, when cohabiting was taboo, both marriage and divorce rates dropped. “These trends had little to do with marital happiness,” says Andrew Cherlin, a sociologist at Johns Hopkins and the author of The Marriage-Go-Round: The State of Marriage and the Family in America Today. “People kind of stay put during an economic downturn.” Today, the divorce rate is at the lowest point since the early 1970s. Even with more Americans moving in together, the long-term decline in marriage also accelerated during the recession, according to the Census Bureau. Although the age at which people first marry is at a historic high (28 for men and 26 for women), most American couples still strive for marriage after they move in together, except during an economic downturn, Cherlin says. In other places across the world—such as the Scandinavian countries, in particular—cohabiting relationships have become a substitute for marriage. But for most Americans, “cohabitation is an acceptable but temporary arrangement,” Cherlin says. “Many cohabiting couples may now be in limbo, unable to marry and afraid to break up.”

Read the full story here.


October 24, 2010 in Current Affairs | Permalink | Comments (2) | TrackBack (0)