Family Law Prof Blog

Maravilla: "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas"

Christopher Maravilla has published "The other don't ask, don't tell: adultery under the Uniform Code of Military Justice after Lawrence v. Texas," 37 Cap. U. L. Rev. 659-680 (2009).  Here is an excerpt:

The U.S. military has a long standing prohibition, punishable by court martial, against adultery committed by service members whether it is between service members of the same rank, different ranks, or with civilians. [FN1] While the armed forces are a unique body in terms of constitutional jurisprudence and not necessarily subject to the same protections as civilians (generally with regard to the First Amendment right to free speech), [FN2] this doctrine is not absolute. The Supreme Court's decision in Lawrence v. Texas opened the issue whether consensual sexual activity between two adults is protected under the Constitution, specifically in homosexual relationships. [FN3] The Court of Appeals for the Armed Forces in United States v. Marcum sidestepped the issue by finding that Lawrence did not apply to the specific facts in that case. [FN4] Subsequent military courts have misread Marcum in holding that Lawrence either: (1) is applied only on a case by case basis, [FN5] or (2) does not apply in the military context at all. [FN6]

Adultery covers a wide range of conduct from one night stands, relationships with a co-worker, to long-term romantic entanglements. [FN7] Adultery among members of the Armed Forces is considered common. [FN8] For example, condoms have been made available for both married and unmarried sailors going ashore. [FN9] There are no statistics available for the rate of adultery among members of the armed forces. There is, however, what is considered to be an informal amendment to the prohibition of adultery: “[D]o what you want, but don't do it blatantly and don't get caught.” [FN10] In other words, the policy is another form of “Don't Ask, Don't Tell.” [FN11]

In interviews with soldiers stationed at Fort Bliss in El Paso, Texas, the New York Times found one soldier who said, “But everyone is human. It's going to happen.” [FN12] Another married soldier spent forty dollars to spend five minutes with a prostitute in a Mexican brothel. [FN13] To prosecute any one of these individuals for their conduct becomes almost arbitrary. Critics also argue that the military prosecutors' willingness to pursue charges against adulterers varies depending on the service and the commanders. [FN14] Lawrence J. Korb of the Brookings Institute also argues that these prosecutions when they do occur are more aimed at a member of the Armed Forces already in trouble for something else. [FN15] He likens it to “getting Al Capone on income tax evasion.” [FN16]

However, as this article argues, Lawrence applies to the military, and the crime of adultery in and of itself should no longer be barred by the military because it serves to merely enforce a moral code. Rather, adultery between service members of different ranks should be brought under the *661 prohibition against fraternization. [FN17] While this article does not reach “Don't ask, Don't tell,” many of the arguments presented resonate with that issue. This article will: (1) discuss the military's criminalization of adultery in light of Lawrence and Marcum, (2) argue that this prohibition serves only to enforce a moral code, and (3) that such prosecutions should be brought as fraternization, not adultery.

The abstract is also on SSRN.

AC

Delaying Divorce During Recession

The Washington Times reports on the growing phenomenon of decisions to delay divorce until the recession ends.

In the reality of this recession, even couples who both want a divorce can get stuck in a dead marriage.

Take Sheryl Schelin of Myrtle Beach, S.C. She and her estranged husband wanted to get a divorce two years ago but because of financially tough times that included job loss, they couldn't afford to maintain separate residences — a prerequisite to file for divorce in that state, she says.

So, Ms. Schelin now lives with the couple's 10-year-old daughter and her estranged husband lives with his new girlfriend and neither can completely move on emotionally.

"It's totally draining," she says, adding it feels like she's in limbo, neither going backward or forward. "I want my maiden name back, but that's not going to happen until the divorce goes through."

Which will be next summer at the earliest, she says.

So, in the end, can anything good come out of this temporary drop in divorce rates? A permanent reduction, perhaps?

Read the full story here.

AC

New York Court Rejects "Social Abandonment" as Ground for Divorce

A New York court of appeals has rejected a wife's claim for divorce on grounds of "constructive abandonment" on grounds that "the husband refused to engage in social interaction with the wife by refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and the wife's birthday, by refusing to eat meals together, by refusing to attend family functions or accompany the wife to movies, shopping, restaurants, and church services, by leaving her once at a hospital emergency room, by removing the wife's belongings from the marital bedroom, and by otherwise ignoring her."  Such "social abandonment," the court held, does not rise to the level of constructive abandonment, which New York courts have held requires constant refusal to engage in sexual relations despite repeated requests. 

The opinion details the history of constructive abandonment, and is a very interesting read.  See it in full here.

AC

No Legislative Revival of Causes of Action in Illinois

The Illinois Supreme Court has determined that the legislature cannot amend a statute of limitations so as to revive causes of action that had expired under a previous version of the legislature.  This will no doubt impede the litigation of childhood sexual abuse claims, as it has in this particular case. 

See Doe v. Diocese of Dallas, 2009 WL 3063427 (Ill.), or see here for the opinion.

MR   

Kraft: Empirical Study of "Effect of Labor Division between Wife and Husband on the Risk of Divorce: Evidence from German Data"

Kornelius Kraft (University of Dortmund, Department of Economics) and Stefanie Neimann have posted "Effect of Labor Division between Wife and Husband on the Risk of Divorce: Evidence from German Data" on SSRN.  Here is the abstract:

Using German panel data from 1984 to 2007, we analyze the impact of labor division between husband and wife on the risk of divorce. Gary Becker's theory of marriage predicts that specialization in domestic and market work, respectively, reduces the risk of separation. Traditionally, the breadwinner role is assigned to the husband, however, female labor force participation and their wages have risen substantially. Our results suggest that there are gender-specific differences, e.g. female breadwinner-couples have a substantially higher risk of divorce than male breadwinner-couples. In contrast, the equal division does not significantly alter the probability of separation.

AC

Divorce After a Cancer Diagnosis

New research suggests that women receiving a diagnosis of a life-threatening illness are six times more likely to become divorced than their male counterparts receiving the same news.

The study included diagnoses of both cancer and multiple sclerosis and found an overall divorce rate of nearly 12 percent, which is similar to that found in the normal population.

But when the researchers looked at gender differences, they found the rate was nearly 21 percent when women were the patients compared with about 3 percent when men got the life-threatening diagnosis.

Read the MSNBC report here.

AC

She may walk in beauty, like the night…but don’t text it

Technology is no stranger to alternative forms of procreation, see here and here, but now neither is it a stranger in the courtroom.  Although this stranger is not tall, dark, and handsome, it is landing people in hot water nonetheless.  Family lawyers are now using incriminating phone text messages as evidence of marital infidelity or bad parenting to achieve favorable settlement or court outcomes, instead of hiring private investigators or decoys.  Read more here.     

 

MR

Fun for your Monday morning - Will California Soon Ban Divorce?

The Los Angeles Times reports on a proposed constitutional amendment to ban divorce.

California Secretary of State Debra Bowen today authorized the backer of an initiative that would ban divorce to begin collecting signatures to put the proposed constitutional amendment before voters.

John Marcotte now has until March 22, 2010, to collect 694,354 signatures of registered voters in order to get the measure on the ballot next year. The proposal would change the California Constitution to "eliminate the ability of married couples to get divorced in California."

Couples could still get their marriages annulled under the proposal.

AC

Divorce Actions by Guardians of Incompetents

The Dallas Morning News reported yesterday a case in which a son is seeking a guardianship for his 87-year-old father and to bring a divorce action on his behalf.  The news report provides plenty of details on the facts of the case and would make a fine case study of divorce dynamics on its own, but it is especially useful for calling student attention to the increasing intersections of elder law and divorce law. 

For a summary of the specific legal issues raised by this case, see the comment by UMKC Law Student Diane Snow Mills, "But I Love What's-His-Name": Inherent Dangers in the Changing Role of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad. Matrimonial Law. 527 (2000).  That article reviews the state laws on the issue and notes that, at the time of the article, only eight states had statutes or rules which specifically provided for divorce actions brought by the guardian of an incompetent ward.   In the remainder of the states, "the overwhelming majority of jurisdictions with no express statutory authority had held that the decision of whether or not to bring a dissolution action was such a highly personal one and could not be made by anyone other than the aggrieved spouse."  The article does note  a minority trend in the states to increasingly allow these actions and reviews the legal issues. 

Recent cases on the subject have reflected this increasing willingness to allow these actions.  In August of this year, the Ohio Court of Appeals held that a guardian could bring a divorce action on behalf of an incompetent ward.  The court distinguished prior precedent that had prohibited such actions on the basis that those cases predated the adoption of the current Ohio Rules of Civil Procedure, which allow guardians "to sue or defend" on behalf of a ward.  Broach v. Broach, 177 Ohio App.3d 664, 2008-Ohio-4132. (opinion online)   Likewise, last month the New Hampshire Supreme Court issued a decision in a case raising a related issue: whether a guardian could continue an action for divorce that a husband had brought before he became incapacitated by stroke.  While the court noted that the majority rule continues to be that guardians may not initiate divorces on behalf of their incompetent wards, the case before it was exceptional in that the intent of the ward was clear given his action of bringing the divorce petition before he had become incapacitated.  In the Matter of John Salesky and Jacqueline Salesky, New Hampshire Supreme Court, October 8, 2008 (opinion online)(last visited November 18, 2008 bgf).

Why People Divorce

A commissioned poll by an online divorce site (Divorce360.com) examines the reasons people divorce.  The number one reason people gave for divorce is abuse. More than one in three (36%) divorced Americans cited either verbal or physical abuse as the main cause of divorce. Money, at 22%, is a distant second. Women are more than twice as likely as men (48% vs. 21%) to divorce because of verbal or physical abuse. Men, in turn, are more than twice as likely as women (22% vs. 11%) to cite sex as the cause for their failed marriage.

Read the Divorce360 report (last visited January 9, 2008 bgf)

CBS Airs "Divorce Today" Series

CBS News' Early Show is running a series on divorce.  Articles and videos available on their website that professors may find useful in their teaching include:

Putting An End To Divorce Wars.  Reconcilable Differences: Some Couples Seek Mediation, Not Litigation, To Keep The Peace.  (article)

Divorce Among Senior Couples.  Deirdre Bair, author of "Calling It Quits: Late-Life Divorce And Starting Over," speaks with Harry Smith. (video)

How Divorce Wars Take A Toll On Kids. Children Are Often Caught In The Middle Between Feuding Parents (article)

last visited August 21, 2007 bgf

Case Law Development: Divorce Courts may not Prohibit Oral Testimony

The California Supreme Court has invalidated a county court rule that required divorce trials be submitted on written declarations and prohibited oral testimony except in “unusual
circumstances.”  The rule also required parties to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial. A divorce litigant whose evidence was excluded because he had failed to establish its admissibility in the pretrial stage challenged both sets of rules. 

The court acknowledged that local courts have rulemaking authority, however, "local courts may not create their own rules of evidence and procedure in conflict with statewide statutes."  Avoiding the constitutional issues presented by the case, the court analyzed the statewide evidence and procedure statutes, the caselaw concerning hearsay admissibility, and the history of trial procedure in the state, concluding that the local rule conflicted with these statewide evidence rules regarding hearsay.

The Supreme Court acknowledged that the local rules were designed in response to increasing case loads and limited judicial resources.  However, on balance, that did not justify the violation of basic trial procedures.

That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. ... While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-thetotem-pole treatment.” 

Regarding the court's sanction of excluding evidence for failure to establish admissibility in pretrial proceedings, the court concluded that "The trial court abused its discretion ... by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence.... The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits."

Elkins v. Superior Court (California Supreme Court August 6, 2007)

Opinion online  (last visited August 13, 2007 bgf)

Divorce Insurance?

Professor Dave Hoffman of Temple University School of Law has posted a fascinating report on an investment device that looks something like Divorce Insurance at his blog "Concurring Opinions"   Couples purchase an annuity which pays out in 25 years, or immediately if they divorce.

bgf

Family History, Not Genes, Predicts Divorce

Forbes magazine reports on an Australian twin study indicating that family history is more predictive of divorce than genetic history. "Adults whose own parents had split had nearly twice the risk of going through a divorce themselves, the researchers found.  But there is no "gene" for divorce, so to speak, said lead researcher Robert M. D'Onofrio, an Indiana University psychologist. "Genetic factors that influence both generations do not [significantly] account for that increased risk," he said. The findings are published in the August issue of the Journal of Marriage and Family."

Read the Forbes article (last visited July 27, 2007 bgf)

Divorce Rate Lowest Since 1970

The New York Times reports that the national per capita divorce rate has declined steadily since its peak in 1981 and is now at its lowest level since 1970.  The article points out that experts disagree asto the cause.  Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

Read the article  (last visited May 11, 2007 bgf)

Chinese Divorce

"Divorce, once nearly unheard of in China, has become more common than ever as women such as Wu gain financial independence and shrug off the diminishing stigma of leaving their husbands. Legal barriers to divorce have fallen away -- couples needed permission from their employers until just four years ago -- and the Internet has become a resource for discontented spouses seeking guidance. More broadly, experts say, the increase in divorce points to an embrace of individualism in this country, which in many ways remains only nominally communist." By Maureen Fan, Washington Post Link to Article (last visited 4-10-07 NVS)

Stigma of Third Divorces?

"“The stigma of divorce is lower than in the past, even the stigma of a second divorce,” said Andrew Cherlin, a professor of public policy at Johns Hopkins University who specializes in marriage and divorce trends. “Researchers used to think that people in third marriages were very different — not as good at keeping a marriage together by temperament or taste.”

“But these days, with so much more divorce, third marriers aren’t necessarily so different.”

There is little information on people who marry three or more times because the demographic is relatively small. Census surveys show that only 3 percent of men and women marry three times or more, compared with 13 percent of men and 14 percent of women who marry twice.

But third marriages are, by logic, more common among older Americans, and when broken down by age the census figures show a significantly higher incidence of marriage for certain groups. Eight percent of men and 6 percent of women in their 50s had married three or more times, 2001 figures show, and so had 7 percent of men and 6 percent of women in their 60s.

That’s likely to rise as people who grew up in the 1970s, when divorce became more commonplace, reach midlife, Dr. Cherlin said." By Mireya Navarro, N.Y. Times Link to Article (last visited 4-1-07 NVS)

Collaborative Law Websites

"Because it ends a marriage, divorce can be a painful experience. But there is no denying that divorce is also a new beginning. Recognizing this, many individuals have sought a more constructive way of divorcing. For them, Collaborative Practice (Collaborative Law and Collaborative Divorce) has been the answer. It promotes respect, places the needs of children first and keeps control of the process with the spouses." By International Academy of Collaborative Professionals (IACP) Link to Website

"Separating or divorcing is never easy. But when couples and their advocates take a less adversarial approach, the entire family benefits. Collaborative practice (often called collaborative law) helps families resolve divorce issues with dignity and respect. In the collaborative process, husbands, wives, their attorneys, and any other collaborative professionals working with the family, agree to resolve all issues of their case without contentious court proceedings. They plan together to craft an agreement. They make thoughtful decisions that can actually work for the entire family." By Collaborative Law Institute of Minnesota Link to Website

(Last visited 3-1-07 NVS)

Collaborative Law in New York

"Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements.

New York, which does not have no-fault divorce, is notorious for judicial delays that turn even the least fraught divorces into expensive, acrimonious affairs. Judge Kaye, who has long championed overhauling state divorce laws, repeated her call for no-fault divorce in her speech on Monday, but that idea has stalled in the Legislature in the past.

The planned Collaborative Family Law Center, which will serve all five boroughs, does not require legislative approval, and it will serve as a pilot project on alternative approaches to divorce when it opens in Manhattan this year.

“Too much money, too much delay, too much agony,” Judge Kaye said in her speech, describing the state’s divorce laws. “We anticipate that spouses who choose this approach will find that the financial and emotional cost of divorce is reduced for everyone involved — surely a step in the right direction,” she added." By Danny Hakim, N.Y. Times Link to Article (last visited 3-1-07 NVS)

Late-Life Divorce Research Published

Author Deirdre Blair, has released a new book: "Calling It Quits: Late Life Divorce and Starting Over."  Blair interviewed more than 400 ex-wives and ex-husbands, aged 50 to 83, who had ended marriages that had lasted anywhere from 20 to 60 years. She also talked to adult children of older divorced parents. The book explores what an AARP Magazine survey referred to as the "groundbreaking" and growing trend of late-life divorce and provides an insider look at life in the years after the end of a long-term union.

Read about the book from the Hartford Courant. (last visited January 24, 2007 bgf)