Family Law Prof Blog

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

Sunday, October 31, 2010


Free black and white spider Halloween clip art Free black and white spider Halloween clip art Free black and white spider Halloween clip art




October 31, 2010 | Permalink | Comments (0) | TrackBack (0)

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)

Saturday, October 23, 2010

Chimps & Human Fertility

The Atlantic recently ran a story about the hardships of collecting chimp sperm, but its high promise of providing answers to questions like: “Do the different sugars on the surfaces of chimp and human sperm impact fertility?”  Furthermore, “Perhaps the differences between chimp and human sperm can help explain why humans miscarry nearly 50 percent of all conceptions, while chimps seem rarely to lose an embryo or fetus.”

Read the article here.



October 23, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, October 22, 2010

Katz: "'Wife Beating' and 'Uninvited Kisses' in the Supreme Court and Society in the Early Twentieth Century"

Elizabeth Katz (USDC Maryland) has posted "'Wife Beating' and 'Uninvited Kisses' in the Supreme Court and Society in the Early Twentieth Century" on SSRN.  Here is the abstract:

This paper challenges the conventional narrative that domestic violence victims were ignored by both law and society in the early 1900s. It begins by questioning the dominant position a single Supreme Court tort case, Thompson v. Thompson, holds in the domestic violence discourse. Far from being a strong or unified statement in favor of family privacy or against battered women’s legal rights, the case was decided by a four-Justice majority that pointed victims toward two very public alternative remedies: divorces with alimony and criminal prosecutions. The paper then proceeds to evaluate whether these proffered remedies were available and sufficient. It first concludes that divorce with alimony was a real option but suggests that social and legal impediments made divorce an inferior remedy as compared to tort. It then documents that wife beaters were charged and convicted in criminal courts but details perceived inadequacies of the criminal sanctions. It therefore concludes that the Justices must have been aware that their suggested remedies had shortcomings that could have been addressed by providing a third alternative: interspousal tort suits. The final part of this paper therefore addresses the question of why judges, knowing that divorce and criminal suits had shortcomings, nevertheless refused to allow tort suits. It argues that judges refused to allow interspousal torts for personal harms in part because they worried it would lead to tort suits for marital rape. Such an outcome was unacceptable because sex was seen a marital duty at the time and because awarding damages to wives for unwanted sexual intercourse would make marriage look uncomfortably similar to prostitution.


October 22, 2010 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Cheating Death & Marriage

From Fox News:

Yonni Barrios hit headlines last week not only because he was one of 33 men rescued after 69 death-defying days trapped in a collapsed mine in Chile, but because he requested both his wife of 28 years and his (gasp!) mistress be there greet him on the completion of his ascent.

But while his marriage might be on the wane these days (his wife refused to greet him), Barrios’s bank account may get quite a big boost as a result of his wandering ways.

Pop Tarts has learned exclusively that on Monday, controversial website, which provides an online dating service to those looking to have extramarital affairs, is offering the Chilean miner a $100,000 endorsement deal to be the Spanish speaking spokesperson for the site.

Read more here.


October 22, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, October 21, 2010

Marriage License Application Uncovers Family Secret

From the Associated Press:

Melissa Reed was a proud fiancee applying for what she thought was a routine marriage license two weeks ago when she learned a stunning secret: She had been abducted as a child and living under an assumed name.

The woman was actually a former New Jersey girl named Eva Marie Fiedler who was 6 years old when she disappeared with her mother during a bitter child custody battle. The mother, Nancy Dunsavage, says she fled with her daughter and changed their names to save them from an abusive father.

The mother lived with the secret for all these years, but confessed to the double life when her 32-year-old daughter couldn't get a marriage license because she lacked proper identification. She couldn't bear to keep the secret any longer, knowing that she had deprived her daughter of a chance to get married.

"The wedding is set, the guests are committed and she cannot get a marriage license because she has no photo ID," said Dunsavage, also known as Debbie Reed. "This has brought me to the realization that we cannot continue living like this."

The discovery touched off a bizarre chain of events that has landed her 57-year-old mother in jail in Reno on a 1985 fugitive warrant out of New Jersey. Prosecutors in New Jersey want to bring her there to face charges in what they consider a parental abduction.

Details of the secret life the daughter apparently never knew she had began to emerge this week in newly unsealed court documents.

Read more here.


October 21, 2010 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Davis: "The Game of Love: Polygamy, Default Rules, and Bargaining for Equality"

Adrienne D. Davis (Washington U. School of Law) has recently posted The Game of Love: Polygamy, Default Rules, and Bargaining for Equality on SSRN.  Here is the abstract:

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as “intimacy liberty,” particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social norms. It argues that the gay marriage analogy, invoked on both the “left” and the “right,” is a red herring, a distraction from the real challenge polygamy raises for law - how plural marriage transforms the conventional marital dyad and whether law is up to regulating marital multiplicity. Both of the gay analogies, the slippery slope invocation and the alternative lifestyles defense, distract us from the fact that polygamy’s distinctive feature lies not in the spouses’ gender (as is the case for same-sex couples marriage) but rather in its departures from the two-person marital model. Polygamy’s defining feature, marital multiplicity, generates specific costs and vulnerabilities, as well as opportunities for exploitative and opportunistic behavior, some of which we have seen played out in distressing fashion in recent high-profile conflicts. Hence, this paper approaches polygamy as a problem of bargaining, cooperation, strategic behavior, and, forgive the pun, the problems it engenders. No one, including others who have considered polygamy from a bargaining perspective such as Gary Becker and Richard Posner, has confronted polygamy as a regulatory matter, instead assuming it is merely dyadic marriage multiplied. Is the law up to regulating marital multiplicity? This Essay contends that, in contemplating the design of a plural marriage regime, we are not starting from scratch. While conventional family law, with its assumptions of the marital dyad, may not be up to the task, other legal regimes have addressed polygamy’s central conundrum: ensuring fairness and establishing baseline behavior in contexts characterized by multiple partners, on-going entrances and exits, and life-defining economic and personal stakes. In particular, commercial partnership law has addressed precisely these concerns through a robust set of off-the-rack rules. The Essay contrasts polygamy with aspects of partnership law to derive a set of default rules that might accommodate polygamy’s marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered. The point is not to use partnership law as a “map,” but rather to make the point that there are already conceptual models for what might be thought of as plural marital associations.


October 21, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Caceres-Delpiano & Giolito: "The Impact of Unilateral Divorce on Crime"

Julio Caceres-Delpiano (Universidad Carlos III de Madrid) & Eugenio Giolito (Universidad Carlos III de Madrid; Institute for the Study of Labor) have posted "The Impact of Unilateral Divorce on Crime" on SSRN.  Here is the abstract:

Using data from the FBI´s Uniform Crime Report program and differences in the timing of the reform’s introduction, we find that unilateral divorce increases violent crime rates by approximately 9 percent during the period under analysis. Arrest data shows an average increase of 18% for murder and 20% for aggravated assault arrest rates over the period 1965-1997. Then, using age at the time of the reform as an additional source of variation, our findings suggest that the impact of unilateral divorce is driven by cohorts of young adults who were children at the time of the reform. These results are robust to a specification that controls for confounding factors that .may operate at the state-year level. We find consistent results on the impact of the reform on the likelihood of an individual being institutionalized, using Census data for the period 1960-2000. We argue that the main channel behind our findings is the increase in poverty and inequality among families which were “surprised” by the reform. Specifically, we show that mothers in adopting states are more likely to be the household head and to fall below the poverty line, especially those with lower levels of education.


October 20, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Favoring Mothers

In an editorial, one divorcing father in London laments the favoritism in family law towards the mother.  Read it here.



October 20, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)