Family Law Prof Blog

Weaver: "Grandma in the White House: Legal Support for Intergenerational Caregiving"

Jessica Dixon Weaver has posted "Grandma in the White House: Legal Support for Intergenerational Caregiving," 43 Seton Hall L. Rev. 1 (2013) on SSRN.  Here is the abstract:

Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, money, time, and part of their autonomy in order to ‘retribe’ their family. Often times, these grandparents are not as fortunate as Mrs. Robinson, and their selfless commitment to family not only reduces their current income, but also negatively affects their retirement funds and ability to care for themselves in the future. As the number of citizens over the age of sixty-five increases and the average age of grandparents decreases, these fundamental changes in the family caregiving network pose a threat to a significant portion of our population, particularly women, who make up the majority of grandparent caregivers. 

The impact of this family evolution on the older generation has yet to be examined from a legal perspective that goes beyond the traditional spectrum of family law. This article fills a gap in the legal analysis of family law reform in that it focuses on two underdeveloped topics: grandparents who are an integral part of the family, and the impending crisis of a significant aging population. This Article explores how employment, tax, and housing laws discourage intergenerational caregiving. Although research shows that grandparent involvement in their grandchildren’s lives results in multiple positive outcomes, government support for the extended family network lags behind the social framework of today. This Article examines how other modern countries in Europe and Australia have adopted laws that reduce the economic strain of grandparent caregiving. It further argues that the transubstantive nature of family law requires advocacy for grandparents beyond custody and visitation rights. Expanding social welfare for grandparent caregivers will revise the concept of the system of laws that supports family care work and can reform the administration of federal, state, and local regulations governing work and family.

MR

Breger: "The (In)Visibility of Motherhood in Family Court Proceedings"

Melissa L. Breger (Albany Law School) has posted "The (In)Visibility of Motherhood in Family Court Proceedings," 36 New York University Review of Law & Social Change, 555 (2012) on SSRN.  Here is the abstract:

Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children – expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?

MR

Feuer: "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder"

Albert Feuer has posted his paper entitled "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder" 45 J. Marshall L. Rev. 635 (2012) on SSRN.  Here is the abstract:

This Article discusses the interaction between ERISA and family law (i.e., domestic relations law and estates law). The Supreme Court and the US Department of Labor (“DOL”) may improve the practice of both ERISA and family law by dispelling myths that they have reinforced.

First, the Court incorrectly asserted that the Retirement Equity Act of 1984 (“REACT”) “enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse.” This assertion has encouraged plan administrators and other courts to find that domestic relations orders (“DROs”) govern an excessively broad class of ERISA pension and life insurance benefits. However, REACT, like ERISA, was a reaction to the inadequacies of state law and prior federal law pertaining to domestic relations and estate law. Thus, it similarly circumscribed the role of state law and increased substantive protections for ERISA participants and beneficiaries.

Second, the Court added a gloss to ERISA in non-family law contexts that emphasizes the importance of limiting the cost burdens imposed on employers by ERISA, which, if excessive, would discourage employers from establishing and maintaining employee benefit plans. This gloss has encouraged other courts to lose sight of the leitmotif of ERISA, protecting plan benefits of participants and beneficiaries. Thus, courts have wrongfully permitted individuals to use superseded (state family law or federal common law) ownership claims to obtain benefit entitlements from the recipients of those entitlements rather than the plans. Such holdings violate Supreme Court decisions extending over more than a hundred years, which consistently protected ERISA entitlements and other federal entitlements, before and after their distribution.

The DOL has created issues by both its actions and inactions. First, the DOL incorrectly asserted that the ERISA benefit claim provisions should not govern plan reviews of DRO for compliance with the pertinent ERISA requirements, the qualified domestic relations order (“QDRO”) requirements, but has failed to present an alternative set of review provisions for plans to follow. This has created unnecessary issues concerning the roles of plan administrators, participants, their families, and courts in such reviews Second, the DOL has provided only nonbinding, informal guidance to the general public rather than extensive DOL regulations with respect the QDRO requirements. This has created unnecessary issues for persons seeking to prepare a DRO that complies with the pertinent ERISA requirements, and for plan administrators responding to such requests.

MR

Oldham: "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?"

J. Thomas Oldham posted his article "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?" on SSRN.  Here is the abstract:

This article summarizes the provisions of the Uniform Premarital and Marital Agreement Act, which was promulgated by the Uniform Law Commission in the summer of 2012. It compares these provisions to the Uniform Premarital Agreement Act, the rules currently applicable in states that did not adopt the UPAA, and the approach applied in other countries to premarital agreements contemplating divorce. The article summarizes the new requirement in the UPMAA that, to be enforceable, each party must have had “access to independent counsel,” and discusses how courts might construe such a provision.

MR

Knight & Comer-HaGans: "Domestic Partner Benefits"

A new paper, written by Margaret A. Knight and DeLawnia Comer-HaGans, aims to summarize literature review findings about barriers employers face with providing Domestic Partner Benefits and discuss some advantages of providing some benefits.  Exploring the DPB issue provides insights into “sexual orientation, marital status, legal definitions and requirements, and benefit equity” issues.  Download Domestic Partner Benefits.

MR

New Chinese Law Requiring Visits to Eldery Parents

From the Bangkok Post:

China has passed a new law stipulating that family members should pay regular visits to their elderly relatives, according to the government's official website.

The ruling, approved by China's National People's Congress on Friday, is part of a package of amendments to the Protection of the Rights and Interests of the Elderly legislation and will come into force on July 1, 2013.

"Family members who live separately from the elderly should visit them often," the law says, adding that "employers should guarantee the right to home leave in accordance with relevant regulations".

The law mentions no specific penalties for those who fail to visit frequently, nor elaborates on what "often" means.

Read more here.

MR