Family Law Prof Blog

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

Friday, July 15, 2011

Divorce Costs College Money

From Desert News:

A recent study published in the Journal of Family Issues found that children of divorced parents contribute less to the college costs of their sons or daughters than married parents do.

The Wall Street Journal reported last week that while married couples will fund about 77 percent of tuition costs of their children, divorced parents fund about 42 percent of their children's college cost. Even if a parent remarries and makes the same amount with their new spouse as they did before, the divorced parents will still only pay for about 53 percent of their child's tuition altogether.

Read more here.



July 15, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Thursday, July 14, 2011

New Child Sexualization Website in England

From BBC:

Parents will be able to highlight examples of child sexualisation on a new website, the prime minister has said.

The measure is among the proposals in a review on the commercialisation and sexualisation of children, from Mothers' Union boss Reg Bailey.

David Cameron also backed Mr Bailey's calls to make blocking web and mobile-phone pornography easier.

And he plans to hold a summit on progress on the issues, in October.

Retailers, advertisers, broadcasters, magazine editors, video games and music industry chiefs and regulators will be summoned to the event.

Under the changes proposed by Mr. Bailey's review, steamy pop videos would be restricted to older teenagers and later television slots and magazines featuring sexualised images covered up on shelves.

Read more here.


July 14, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 13, 2011

Kanoy: "The Effectiveness of the Internal Revenue Code's Adoption Tax Credit: Fostering the Nation's Future?"

From Paul Caron's Tax LawProf Blog:

Leah Carson Kanoy (LL.M. (Tax) 2011, Florida) has published Note, The Effectiveness of the Internal Revenue Code's Adoption Tax Credit: Fostering the Nation's Future?, 21 U. Fla. J.L. & Pub. Pol'y 201 (2010). Here is the Conclusion:

The adoption tax credit was designed to further two congressional objectives: to reduce financial barriers to all adoptions and to encourage the adoption of special needs children, such as those in the foster care system. Unfortunately, the adoption credit of I.R.C. § 23 is expensive and has been unsuccessful at achieving the congressional goal of promoting adoptions from foster care. For the credit to successfully incentivize foster care adoptions, it must be structured in a way that it is accessible to lower-income taxpayers who do not have the requisite tax liability to claim the credit. This can be achieved by transforming the current credit into a refundable credit. With the sunset date quickly approaching, Congress must determine whether it should continue to allow millions in forgone revenue without the corresponding desired result, or whether it should consider implementing new spending alternatives that would effectively promote its objectives.


July 13, 2011 in Adoption, Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

RI Birth Certificate Access


PROVIDENCE — For the third year in a row, the House unanimously approved a bill to allow adults who were adopted to obtain copies of their original birth certificates, clearing the way for action in the Senate.

Read more here.


July 13, 2011 in Adoption | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 12, 2011

Field: "Tax Elections & Private Bargaining"

Heather Field (Hastings) has posted "Tax Elections & Private Bargaining" (31 Va. Tax Rev. (2011)) on SSRN.  Here is the abstract:

Focal points for private bargaining occur every instance the tax law provides a tax election that directly affects multiple taxpayers. These elections explicitly enable, and actually incentivize, the taxpayers to cooperate in order to reduce their aggregate tax burden. For example, divorced parents of a dependent child can negotiate about which parent will be entitled to take the dependency exemption for the child. If the parents work together, they can identify the parent for whom the dependency exemption will have the most value. By electing to allocate the dependency exemption to that parent, they can reduce their aggregate tax burden and share in the tax savings. Yet transaction costs, cognitive biases, and sheer irrationality can impede taxpayers’ abilities to bargain effectively. Thus, in order to facilitate bargaining and reduce bargaining costs, this article analyzes how impediments to negotiation should affect the design of two key election parameters: (1) the allocation, among the affected taxpayers, of the power to make the election, and (2) the default rule that will apply if no election is made. As examples, this article examines tax bargaining focal points in three settings where the negotiating dynamic can differ significantly: divorce, employment, and corporate acquisitions. In addition to making a few specific proposals for modifying these elections, this article provides generalizable recommendations about how to design tax election parameters in order to facilitate effective and efficient bargaining.


July 12, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Premarital Agreements

From the Wealth Strategies Journal:

A premarital agreement is a contract between two persons who intend to marry that determines their financial rights at the end of the marriage by death or divorce.  It seems to be a fairly widespread belief that it is easy to challenge the validity of a premarital agreement in court.  In one sense it is easy:  A determined opponent will be able to find a lawyer who is willing to go into court and attempt to convince a judge to throw out a premarital agreement.  However, it is a myth that these challenges are often successful.  In fact, they rarely succeed.  

But, even when the party who wants the agreement to be upheld - the proponent - wins the fight over validity, he or she often pays a heavy price in legal fees, delay, risk and uncertainty.  When a proponent wins the fight over validity, often it is only after a trial and then an appeal.  

The thesis of this article is that it is not enough for a premarital agreement to meet the minimum standards for validity in the state where the agreement is to be signed.  Rather, the proponent's interests can be better protected if the process leading to execution and the text of the agreement discourage an attack by making it overwhelmingly difficult for an attack to succeed.   

Read more here.


July 12, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Monday, July 11, 2011

Clarke: "Beyond Equality? Against the Universal Turn in Workplace Protections"

Jessica Clarke (Univ. Minn. Law School) has posted "Beyond Equality? Against the Universal Turn in Workplace Protections" (86 Indiana L. J. 1219 (2011)) on SSRN.  Here is the abstract:

Sexual harassment law and family leave policy originated as feminist reform projects designed to protect women in the workplace. But many academics now ask whether harassment and leave policies have outgrown their gendered roots. The anti-bullying movement advocates taking the “sexual” out of harassment law to prohibit all forms of on-the-job mistreatment. Likewise, the work-life balance movement advocates taking the “family” out of leave policy to require employers to accommodate all types of life pursuits. These proposals are in line with recent cases and scholarship on civil rights that reframe problems once seen as issues of inequality as deprivations of liberty or dignity. I refer to this trend as the universal turn in workplace protections.

This Article urges caution with respect to the universal turn. Drawing on feminist legal and political theory, it provides a set of questions to ask in evaluating proposals to universalize protections. It concludes that anti-bullying and work-life proposals are likely to dilute feminist workplace gains and mask inequality. If the universal rule swallows the anti-discrimination rule, the transformative potential of requiring employers and the public to scrutinize the workplace for gender discrimination is lost. Personality conflicts are seen as no worse than sexual harassment, and recreational pursuits are supported to the same extent as caretaking responsibilities. The benefits of sexual harassment law and leave policy are likely to be diluted.

I therefore oppose universal approaches to harassment and work-life conflicts that would simply expand civil rights protections to cover harms other than discrimination. Instead of the universal turn, this Article proposes a hybrid approach focused on inclusivity that would expand protections incrementally without abandoning equality.


July 11, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)


From the Wealth Strategies Journal:

IDIGT (pronounced: "I dig it") is another wonderful tax acronym for an Intentionally Defective Irrevocable Grantor Trust. Selling assets to an irrevocable trust has become the fav leisure activity of the ultra-wealthy, not only cause it makes great talk on the links, but it can provide an incredible array of tax and asset protection benefits. But rather than extol the benefits of this technique, let's look at what happens when Jr. gets divorced and Jr.'s ex wants to Dig It too. 

Read more here.


July 11, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Joslin: "Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts"

Courtney G. Joslin (UC Davis School of Law) has posted "Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts" (forthcoming Boston U. L. Rev.) on SSRN.  Here is the abstract:

There are tens of thousands of same-sex married couples in the United States. A significant number of these couples, however, cannot divorce. First, many same-sex spouses cannot divorce in their home states because the relevant state law precludes recognition of same-sex marriages. Second, an anomalous jurisdictional rule makes it difficult for these spouses to divorce elsewhere. In contrast to the rules governing other civil actions, one of the spouses must be domiciled in the forum for a court to have jurisdiction over a divorce.

This Article considers the second hurdle – the domicile rule. Previously, divorce jurisdiction was a subject of intense interest to the Court and to legal scholars. But despite an ever increasing disjunction between divorce jurisdiction and general principles of state court jurisdiction, critical examination of the domicile rule has largely disappeared.

This Article responds to recent calls to challenge the myth of family law exceptionalism by critically analyzing the domicile rule. After considering the domicile requirement in the context of state court jurisdiction doctrine more generally, this Article contends the time has come to abandon the domicile rule. Abandonment of the rule alone, however, does not fully resolve the problem. Accordingly, this Article advances a set of normative proposals to ensure that all spouses have a forum in which to divorce.


July 11, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Saturday, July 9, 2011

Caylee’s Law

Our friends at the Constitutional Law Prof Blog are discussing Caylee’s Law, which is a proposed federal law that “would make the mother's failure to report her daughter missing a felony.”  Read the interesting discussion here.


July 9, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, July 8, 2011

700 Signatures

From the Daily Journal:

DELAWARE, Ohio — A judge in central Ohio must put his signature on paperwork for as many as 700 divorce cases where he had delegated the signing to magistrates.

That didn't fly with a state appeals court, which ruled late last month in a case from Judge Everett Krueger's court that a judge must sign the entries.

The Delaware County Common Pleas judge told The Columbus Dispatch on Wednesday that no divorces are invalid. But he says to be safe he's going through all the cases and signing off on the ones that magistrates had taken care of.

The newspaper says court employees are reviewing divorce files going back five years.

Read more here.



July 8, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Thursday, July 7, 2011

Divorce Parties

From the Washington Post:

Jack White and wife Karen Elson have split up. Which is very sad. But it’s really okay with them, so they’re throwing a party to celebrate the demise of their marriage! Hooray?


The former White Stripes frontman and Elson are throwing a bash in Nashville on Friday to “celebrate their 6th anniversary and their upcoming divorce,” according to the invitation. But only people who actually know the couple are invited, meaning no “plus ones or dead beats.”

Read more here.



July 7, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 6, 2011

World Wedding Tour

From Mail Online:

The couple are planning to have ceremonies in 30 different countries on an epic two-year £50,000 round-the-world trip.

At the end of their journey, the couple will decide what their favourite destination was and return there for an official wedding.

Read more here.


July 6, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 5, 2011

Gay Divorce Part 2: The Permissibility of Same-Sex Divorce Nationwide

From the New York Times on same-sex divorce:

But Americans are a roving sort, and people who marry and move to places hostile to their union could find, in disunion, a legal limbo. A couple who marry in New York and seek a divorce in Texas could find themselves fighting not just each other but also Texas’ attorney general, Greg Abbott. He has tried to intervene in two same-sex divorces, arguing that if the state does not recognize the marriage it won’t recognize the divorce, either.

If blocked in Texas, the unhappy couple can’t head back to New York for a quick split either. New York’s same-sex marriage law does not require residency to wed, but the state does require residency of at least 90 days to obtain a divorce. A stay like that is out of the question for most people.

“Where can you get a divorce?” asked Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School. “The answer might be nowhere, perversely.”

Do a little reductio, and it’s not a long way to absurdum.

Margaret M. Brady, a lawyer in New York specializing in family law for same-sex couples, said that even those couples facing no extraordinary obstacles to divorce would find it a very different experience from that of heterosexual couples. Under New York law, the automatic division of property covers only assets acquired after marriage, not “premarital contributions” to things like real estate. Yet some of her clients were together 15 years or more before marrying. “It will be interesting to see if the courts will be willing to take into consideration those premarital contributions made at a time that the couple could not avail themselves of the privilege of marrying,” she said.

Same-sex divorce, of course, is not new. Massachusetts first allowed same-sex marriage in 2004 (and Vermont allowed civil unions in 1999). Some of the pioneer couples in such states have realized that connubial bliss isn’t. But the addition of New York, which, with 19 million people, is the third largest state by population, will add many new cases and conundrums. “There have been only a handful of cases on the topic, but that is sure to change,” said William C. Duncan, the director of the Marriage Law Foundation, which provides legal resources for those supporting traditional marriage.

Today, denying divorce denies justice, said Allen A. Drexel, a family law expert in New York with a large practice among same-sex couples. “The right to obtain a legal divorce is one of the most important, if least celebrated, rights of marriage,” he said. The process of separation can bring out the worst in people, he said, and “the incentives to game-play and to engage in forum-shopping to take advantage of the inconsistent legal treatment exists.”

Read the full piece here.


July 5, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Gay Divorces in NYC

From the New York Post:

Wedding planners aren't the only ones riding the gay-marriage gravy train.

Lawyers, too, are expecting a bonanza -- from gay divorce.


"The same issues present themselves with same-sex couples: How do we split assets? What do we do with the children?" Clement said. "The law doesn't change merely because you have same-sex partners."

Mere months after Massachusetts passed its same-sex marriage bill in 2004, gay couples began filing for divorce -- sometimes having to use outdated forms that still listed "husband" and "wife."

Read more here.


July 5, 2011 in Divorce (grounds) | Permalink | Comments (3) | TrackBack (0)

Monday, July 4, 2011

Happy Fourth of July!



July 4, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, July 3, 2011

Bachiochi: "Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights"

Erika Bachiochi has posted "Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights" (34 Harv. J. Law & Pub. Policy (2011)) on SSRN.  Here is the abstract:

Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.

This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not - indeed, should not - include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).

I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality - that the human species gestates in the wombs of women - need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.

Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.


July 3, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saturday, July 2, 2011

Civil Unions in RI

From the NYT:

PROVIDENCE, R.I. — Less than a week after same-sex marriage was legalized in New York, the Rhode Island State Senate on Wednesday evening approved a bill allowing not marriage, but civil unions for gay couples, despite fierce opposition from gay rights advocates who called the legislation discriminatory.

Read more here.


July 2, 2011 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Friday, July 1, 2011

Yakusheva: "In High School and Pregnant: The Importance of Educational and Fertility Expectations for Subsequent Outcomes"

Olga Yakusheva has posted "In High School and Pregnant: The Importance of Educational and Fertility Expectations for Subsequent Outcomes" (49 Economic Inquiry 810 (2011)) on SSRN.  Here is the abstract:

School and Beyond data (1980–1992) to examine the importance of educational and fertility expectations in explaining the achievement gap of adolescent mothers for over 5,500 young women from different socioeconomic backgrounds. Using a non‐parametric local propensity score regression, the study finds that the economic disadvantage associated with having a child in high school is particularly large in poor socioeconomic environments; however, this disadvantage is a result of preexisting differences in the educational and fertility expectations and is not because of a diminished capacity of the socioeconomic environment to mediate the effect of an unplanned childbirth. The findings suggest that childcare assistance and other policies designed to alleviate the burden of child rearing for young mothers of low means may not produce the desired improvement in their subsequent educational and labor market outcomes. A much earlier policy intervention with a focus on fostering young women's outlook for the future is needed.


July 1, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)

Tarasen: "Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State of Celebration"

Nick Tarasen has posted "Untangling the Knot: Finding a Forum for Same-Sex Divorces in the State of Celebration" (forthcoming Univ. of Chicago L. Rev.) on SSRN.  Here is the abstract:

Same-sex couples with marriages or civil unions living in states hostile to their relationships may lack access to any court procedures to declare them divorced, leaving them indefinite legal limbo. This comment proposes and defends a new solution to provide these couples with access to divorce: divorces in the state of celebration of the marriage or civil union.

The difficulties that same-sex couples face in accessing divorce results from two factors. First, “hostile,” states such as Texas refuse to recognize same-sex marriages, even for the limited purpose of dissolving them. Second, Supreme Court precedents suggest that domicile is a constitutional prerequisite for personal jurisdiction over a divorce action (the so-called, "domicile rule"), thus largely preventing same-sex couples from traveling outside of their home states to obtain divorce decrees.

The existing literature on this topic has focused entirely on encouraging hostile states to recognize same-sex relationships, at least for the limited purpose of dissolving them. This comment contends that such a strategy is unlikely to provide a remedy in the foreseeable future. Instead, this comment suggests that each friendly state can allow same-sex couples who can obtain marriages there (the, “state of celebration”) to return to obtain a divorce, even if neither spouse still resides there. This solution has already been legislatively adopted in civil union/domestic partnership statutes in California, Delaware, Illinois, and Oregon.

However, the domicile rule may cast serious doubt on the validity any dissolutions granted under these statutes, because jurisdiction over these dissolutions would not be founded on domicile. This comment suggests that a limited exception to the domicile rule, for divorces performed in the state of celebration, is consistent with constitutional constraints on personal jurisdiction when the couple’s domicile refuses to recognize their marriage. It argues that while states may once have had an interest in regulating the divorces of their citizens (interests which originally undergirded the domicile rule), such interests are not offended by these divorces. In particular, it argues that states flatly refusing to recognize same-sex marriages cannot simultaneously assert any interest in preventing same-sex couples from being divorced elsewhere, nor in applying their own substantive law to govern such actions.


July 1, 2011 in Scholarship, Family Law | Permalink | Comments (1) | TrackBack (0)