Family Law Prof Blog

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

Sunday, June 19, 2011

Happy Father's Day!



June 19, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Friday, June 17, 2011

Columbia Law School Center for Reproductive Rights Fellowship

The Center for Reproductive Rights – Columbia Law School Fellowship (“CRR-CLS Fellowship”) is a two-year, post-graduate fellowship offered by the Center for Reproductive Rights (“the Center”) and Columbia Law School (“the Law School”). The Fellowship is designed to prepare recent law school graduates for legal aca­demic careers, with a focus on reproductive health and human and human rights. Fellows will be affiliated with the Center and the Law School and will participate in the intellectual life of both programs.

The CRR-CLS Fellowship is a full-time, residential fellowship for up to two full years starting in June, July, or August 2012. The Fellow will be a member of the community of graduate fellows at the Law School and will be integrated into the legal and policy work of the Center. They will have work space at both locations. The Fellow will also have access to law school facilities, including the library and on-line research resources, and faculty events. It is expected that the Fellow will work closely with an assigned Law School faculty mentor.

Fellows will pursue independent research and scholarship in preparation for entering the legal academic job market at the conclusion of their first Fellowship year. During their Fellowship tenure, Fellows are expected to produce a work of publishable legal scholarship that is related to reproductive rights. Fellows will also have responsibility for a range of work at CRR, including planning and hosting of academic conferences or roundtable discussions, drafting blog posts and/or other short advocacy pieces, and creating curricular materials. The scope and details of the Fellows’ work will be agreed upon in consultation with their faculty mentor and the Center for Reproductive Rights.

STIPEND AND BENEFITS:  The Fellow will receive a stipend of $55,000 per year for each full year in residence. The Fellow shall be responsible for purchasing and maintaining her or his own health insurance. The Fellow may purchase insurance through Columbia University.

ELIGIBILITY:  Applicants must show exceptional promise as a legal scholar and a commitment to entering academia. A strong interest in reproductive or sexual rights, women’s rights and/or human rights is required, although extensive experience in the field is not essential. Applicants will be evaluated by the quality of their application materials, and by their record of academic and professional achievement. A J.D. from an accredited law school in the United States is strongly preferred.  In some exceptional cases, we may consider those with foreign law degrees. If the future Fellow is not a U.S. citizen, a J-1 visa is required and Columbia will provide the necessary paperwork for the process. An F-1 visa is not allowed for appointment to Columbia as a post-doctoral fellow. Fellows are not required to be graduates of Columbia Law School.

APPLICATION:  Completed applications must be received by the Law School by October 31, 2011. Please note that it is preferred that application materials, other than the transcripts and letters of recommendation, be submitted electronically. A complete application must include:

1. CRR-CLS Fellowship Application Form (biographical and contact information);

2. Curriculum Vitae;

3. Unofficial transcripts from college, law school and any graduate schools attended;

4. Statement of Scholarly Interest and future academic projects, including a discussion of how the fellowship will help the applicant in pursuing those interests and realizing those projects;

5. A paper or other writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting original ideas. This can be a draft rather than a publication;

6. A 1-2 paragraph statement of why you want to pursue a career in the legal academy;

7. Three letters of reference. At least two letters should be from professors who can speak to the applicant’s potential as a future legal academic. 

Transcripts and letters of recommendation should be mailed or delivered to:

CRR-CLS Fellowship Program

Professor Carol Sanger

Columbia Law School

435 W. 116th Street

New York, NY 10025

ATTN: Marianne Carroll, Faculty Assistant

Other application materials should be sent via email to:


June 17, 2011 | Permalink | Comments (2) | TrackBack (0)

Mahoney: "The Equitable Distribution of Marital Debts"

Margaret Mahoney (Univ. of Pittsburgh School of Law) has posted "The Equitable Distribution of Marital Debts" (79 UMKC L. Rev. 445 (2010)) on SSRN.  Here is the abstract:

The settlement of a couple’s financial affairs at the time of divorce often requires the resolution of debt issues between them. Specifically, responsibility must be allocated between former spouses for repayment of their outstanding debts. This article analyzes the laws in common law property states that govern the judicial authority to reallocate responsibility for the repayment of individual and joint debts at the time of divorce.

The topic of debt allocation in divorce proceedings is of great importance to many divorcing couples. However, the rules of law in this area in many common law property jurisdictions are not as well-articulated as the corresponding rules governing asset distribution. Furthermore, the (largely judicial) rules that have been formulated often reflect a reluctance to establish judicial authority to reallocate responsibility for the repayment of debts of the marriage. No clear explanation has been offered for this reluctance to include liabilities as fully as assets within the conceptual framework of the economic partnership of marriage at the time of dissolution.

This Article examines the existing rules that govern equitable distribution of debts at divorce in the common law property states and speculates about the reasons for withholding full recognition of debts in equitable distribution law. The Article also analyzes the current state statutes and case law and the provisions of the recently promulgated Principles of the Law of Family Dissolution by reference to the general goals of equitable distribution law in the common law property states, relating to a fair winding down of the spouses’ economic affairs at the end of marriage. It concludes that certain restrictive debt allocation rules, such as the joint purpose doctrine and rules excluding student loans from distribution in all cases, are inconsistent with the basic equitable goals in this area of law.


June 17, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Lifetime Alimony in TN

From the Daily Journal:

NASHVILLE, Tenn. — The Tennessee Supreme Court heard arguments Thursday on a case that could change the way alimony is awarded in the Volunteer State.

The case involves the bitter divorce of a former Hendersonville couple, Craig and Johanna Gonsewski (gahn-ZES-kee). In 2009, the Tennessee Court of Appeals ordered Craig Gonsewski to pay his former wife $1,250 a month in alimony. The payments were to last for life or until she remarries.

The ex-husband is appealing, claiming that the appellate court went too far by giving her that amount of money for life.

Some legal experts believe that if the award is allowed to stand it could signal more alimony awards in Tennessee. Other say the case is so narrow that any decision will have limited impact.

The case is different because it considers a lifetime alimony award for a wife who has a career and worked throughout the marriage and was in her 40s at the time of the divorce. Lawyers say most lifetime awards go to women over the age of 50 who have been married for decades and sacrificed their careers for family.

Read more here.



June 17, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Thursday, June 16, 2011

Cain: "A Primer on the History and Proper Drafting of Qualified Domestic Relations Orders"

Terrence Cain (Univ. of Arkansas - Little Rock) has posted "A Primer on the History and Proper Drafting of Qualified Domestic Relations Orders" on SSRN.  Here is the abstract:

The divorce rate in the United States is slightly more than one-half the marriage rate. Divorce is a fact of life in this country, and will likely be so for the foreseeable future. On August 23, 1984, the divorce lawyer’s job got more complicated when Congress created the Qualified Domestic Relations Order (“QDRO”) as part of some significant amendments to ERISA. QDROs are necessary because before those 1984 ERISA amendments, a lot of divorced persons found out the hard way that they could be deprived of their marital or community property interest in their former spouses’ retirement plans. For most divorcing couples, the two largest assets of the marriage are the marital home and retirement accounts. Over ninety-nine million persons participate in private sector retirement plans, and those plans’ assets total more than $4 trillion dollars, which exceeds the total value of all residential real estate in the United States. Dividing retirement accounts is not as simple as a court decreeing that each party gets one-half of the other party’s account. It takes a properly drafted QDRO to make sure each party gets his or her marital or community property share of the other’s retirement benefits. Drafting a QDRO can be time consuming, complex, and frustrating in part because it requires lawyers who practice primarily state law to have a working knowledge of parts of the notoriously lengthy and complex ERISA. A substantial number – perhaps a majority – of QDROs are not prepared properly, in that they do not reflect the parties’ understanding of what they were awarded in the divorce proceeding. In fact, a former administrator for a retirement plan stated that between fifteen and twenty percent of the time, lawyers fail to see a QDRO through to completion. This article will detail the history leading to the creation of QDROs, explain what QDROs are, and offer suggestions on what pitfalls to look for and avoid in drafting them.


June 16, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Madoff Triggers Divorce Re-Opening

From the New York Times:

After 33 years of marriage, Steven Simkin and Laura Blank divorced in 2006. They agreed to split their considerable wealth equally. She got the apartment on the Upper East Side; he got the house in Scarsdale, N.Y.

Afterward, they spoke infrequently, mostly concerning their two grown sons.

More than two years later, Ms. Blank received a voicemail message that stunned her: Mr. Simkin wanted to revise their settlement. She refused, and he sued.

While divorce agreements are generally ironclad and rarely rescinded, this challenge has now reached New York’s highest court. Deeply divided appellate justices requested what is considered an unusual review of settled law involving contracts.

What made Mr. Simkin’s call for a do-over even remotely possible has its roots in Bernard L. Madoff’s Ponzi scheme.

Read more here.



June 16, 2011 | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 15, 2011

Birckhead: "Juvenile Justice Reform 2.0"

Tamar Birckhead (UNC Chapel Hill) has posted "Juvenile Justice Reform 2.0" (forthcoming Brooklyn J. Law & Policy) on SSRN.  Here is the abstract:

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to affecting institutional change through litigation: courts are themselves passive institutions that respond slowly to new information; they are oriented toward past events and circumstances rather than the possibilities implicit in future ones; and they graft qualifications onto preexisting law rather than engaging in a fresh consideration of the issues. In his landmark work, The Hollow Hope: Can Courts Bring About Social Change?, Professor Gerald Rosenberg persuasively argued that in order to overcome these constraints in a particular case or controversy, certain key elements must be present: incentives for the institution to change; costs to the institution for not changing; the existence of parallel institutions to help implement the change; and the use of court orders to leverage additional resources to bring about the change or to serve as a cover for administrators who are willing to act but fear political repercussions.

For more than sixty years after the founding of the first juvenile court in 1899, its philosophy and guiding principle were based on the rehabilitative ideal, which rejected the traditional adversary system found in criminal court proceedings in favor of informal procedures, indeterminate sanctions, judicial discretion, and individualization. The 1967 Supreme Court case of In re Gault struck at the core assumptions of this paradigm with its emphasis on the functional similarity between juvenile and adult criminal court and extension of key due process protections to youth charged in delinquency court, including the right to counsel and the privilege against self-incrimination. Yet, as revolutionary as the Gault decision was, its holding failed to translate into long-term sustainable reform – the result, at least in part, of the absence of the requisite factors articulated by Professor Rosenberg. Whether the recent Supreme Court cases of Roper v. Simmons, Graham v. Florida, and their progeny will facilitate such reform remains an open question.

This Article, written for a symposium at Brooklyn Law School on “Adolescents in Society: Their Evolving Legal Status,” explores the potential for twenty-first century Supreme Court decisions implicating juveniles’ constitutional rights to transform the way in which the courts process and punish young offenders. It discusses the method and means by which institutional reform litigation brings about change and the structural challenges that arise when courts attempt to transform complex institutions. It provides a brief review of Supreme Court decisions prior to Brown that served to prevent rather than enable social change in the areas of slavery, racial segregation, and workers’ rights; it contrasts these cases with the decision and impact of Brown. It argues that although In re Gault was indeed a foundational legal holding, it did not translate into effective policy due in part to local officials’ failure to implement the decision as expected and lawmakers’ inability to enact legislation that was true to the spirit of Gault. The Article argues that based on the analysis developed by Professor Rosenberg and other scholars, recent Supreme Court decisions ending the juvenile death penalty and juvenile life without parole sentences for non-homicides could lead to significant change in both the juvenile and criminal justice systems for young offenders. It acknowledges the limitations to this theory and the challenges that are likely to arise, and concludes that although courts can reform complex institutions, constitutional litigation is an unreliable path to social change.


June 15, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Parenthood > Marriage

An interesting finding from Pew several months ago:

Today’s 18- to 29-year-olds value parenthood far more than marriage, according to a new Pew Research Center analysis of attitudinal surveys.

A 2010 Pew Research survey found that 52% of Millennials say being a good parent is “one of the most important things” in life. Just 30% say the same about having a successful marriage– meaning there is a 22 percentage point gap in the way Millennials value parenthood over marriage.

Read more here.


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

Tuesday, June 14, 2011

Divorce in Philippines

From PhilStar:

MANILA, Philippines (Xinhua) - Congress began this week a heated debate on the issue of legalizing divorce, but many social scientists believe it hard to achieve in this majority Catholic country at present.

The Philippines and the Vatican are now the only places in the world to ban divorce, after Malta voted to remove its ban on divorce on May 31.

The Philippine House committee on revision of laws kicked off its deliberations on the controversial divorce bill, with pro- and anti-divorce lawmakers facing off on the issue of legalizing divorce in the country.

One of the authors of the bill, women's party list group Gabriela believes that the existing laws on marriage are not enough, and legalization of divorce will help many couples and families suffering from failed marriages.

Read more here.



June 14, 2011 in Divorce (grounds) | Permalink | Comments (4) | TrackBack (0)

Monday, June 13, 2011

Malta Legalizes Divorce

From ABC News:

A weekend referendum in the Mediterranean island of Malta found majority support for the introduction of divorce laws.

But it was a tight win for the pro-divorce movement, with just over 53 per cent voting in favour of the referendum.

The result was Malta's prime minister, Lawrence Gonzi, who had campaigned heavily against the introduction of divorce.

"The majority result in favour of divorce is not the result that I'd hoped for," he said.

"But the will of the people has to be respected and parliament should enact a law for the introduction of divorce."

The referendum asked whether divorce should be legalised "in the case of a married couple who has been separated or has been living apart for at least four years and where there is no reasonable hope for reconciliation between the spouses, whilst at the same time ensuring that adequate maintenance is guaranteed and the welfare of the children is safeguarded".

Read more here.



June 13, 2011 in Divorce (grounds) | Permalink | Comments (3) | TrackBack (0)

Saturday, June 11, 2011

Wedding Movies

What's with the wedding movie craze?  See about it here.


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

Friday, June 10, 2011

Video Games Causing Divorces

From Deseret News:

Last year, Divorce Online reported that men paying more attention to their video games than their spouse was the cause of 5 percent of divorces. The number jumped up to 15 percent this year.

Read more here.


June 10, 2011 in Divorce (grounds) | Permalink | Comments (1) | TrackBack (0)

Thursday, June 9, 2011

Chowbe: "Adultery - A Conceptual and Legal Analysis"

Vijaykumar Chowbe (Sant Gadge Baba Amravati Univ.) has posted "Adultery – A Conceptual and Legal Analysis" on SSRN.  Here is the abstract:

Legal analysis of regulation of adulterous behavior of married persons under different legal systems demonstrate that the provision of adultery is greatly influenced by the social values of, "sexual morality," which existed at the moment of formulating the legal provision. In India, S. 497 of IPC had been drafted before a 150-year colonial period and, since from its inception, it has been whirling into debatable controversies on several accounts, such as its gender bias approach, reflecting cultural conflicts, questioning equality clause, and strong arguments have been raised either for its retention, modification, or complete deletion from penal statutes. This article has attempted to articulate these controversies from legal point of view in contemporary India.

This article attempted to analyze adultery from its legal conceptual base, and proceeded to examine its effect, impact, and co-relation with other aspects such as marital ties, property claims, over the progeny, remarriage and divorce. The philosophy, object and justification of legal regulation of adulterous behavior of a person in society has been examined on time scale so as to make appraisal whether its retention, modification, or deletion is indispensable in the present context or otherwise. The article ends with addressing the legal dilemma of whether the legal regulation of adultery is still relevant, and, if it is, to what extent? The conclusion in this respect is self-explanatory.


June 9, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

New TN Child Custody Law

From the Tennessean:

One of the most difficult decisions a family law judge decides is child custody. A new dimension will likely be added to the child custody statute once approved by Gov. Bill Haslam.

The new law would require that in taking into account a child’s best interests, courts are to order custody arrangements that permit both parents to enjoy the “maximum participation possible” in the life of the child consistent with the location of the parents’ residences, the child’s need for stability, and other statutorily enumerated factors.

The term “maximum participation” is a new concept in the allocation of parenting time. The parents’ maximum participation in their children’s lives appears to be of paramount consideration under the new proposed law in fashioning parenting arrangements for minor children. This factor appears in the bill set apart from other factors lumped together that are “set out below” in the statute, i.e., the 10 enumerated factors appearing in the current version of the statute.

Read more here.


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

Wednesday, June 8, 2011

Merin: "Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel - On Religious Norms and Secular Reforms"

Yuval Merin (COMAS) has posted "Anglo-American Choice of Law and the Recognition of Foreign Same Sex Marriages in Israel - On Religious Norms and Secular Reforms" (36 Brooklyn J. Int'l L. 509 (2011)) on SSRN.  Here is the abstract:

Israeli same-sex couples who marry abroad may register as "married" in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli same-sex couples (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, and based on the scope and interpretation of the public policy doctrine in Anglo-American law, the prohibition on same-sex marriages within Israel does not reflect a strong enough public policy for the invalidation of such marriages when contracted abroad.


June 8, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Banking: A World Without Child Custody Fights

From Dealbreaker:

According to a new study...the majority of divorcing bankers could take the kids or leave them but really want that damn dog.

Read more statistics about divorcing bankers here.


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

Tuesday, June 7, 2011

Papke: Transracial Adoption: "The Adoption of Native American and African American Children by Whites"

David Ray Papke (Marquette Univ. School of Law) has posted "Transracial Adoption: The Adoption of Native American and African American Children by Whites" on SSRN.  Here is the abstract:

This paper critiques the case law, federal statutes, and secondary commentaries related to transracial adoption in the United States. The abstractness of the phrase “transracial adoption” obscures a crucial feature of almost all adoptions in which the adoptive parents and adoptees are of different races, namely, the adoptive parents are white and the adoptees are members of minority groups. Given the way whites remain the nation’s dominant racial group and have the greatest political and socioeconomic power, adoptions of this sort rankle some as still another example of racial “haves” getting what they want from racial “have-nots.” The paper explores the ways this concern has manifested itself in the legal discourse, stressing the adoption by whites of, first, Native Americans and, second, African Americans. How do the laws related to these varieties of transracial adoption compare? What do adoption and adoption law controversies tell us about systems of racial dominance in the United States?


June 7, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Bram & Seyhan: "Match of the Day: The Search for a Suitable Spouse"

Avi Bram & Eda Seyhan (Univ. of Oxford) have posted "Match of the Day: The Search for a Suitable Spouse" on SSRN.  Here is the abstract:

The institutions of family and marriage may seem beyond the remit of economics, involving complexities which the discipline could only ever assume away. There is, however, a significant body of research, which applies the adaptable economists’ toolbox to these areas of life, often yielding a significant degree of insight. Gary Becker’s seminal Treatise on the Family, one of the first studies to subject decisions about sex, marriage, childbearing and childrearing to economic analysis, employed concepts such as the maximisation of family, or household, utility functions to explain family collective choice, with later authors using game theoretic models to offer a different perspective on the intra-household distribution of goods. However, the well-documented phenomenon of urban areas having higher divorce rates than rural regions is not addressed by existing family economics literature, despite the importance of such trends to social policy planners. We develop a new model that provides a theoretical basis for the difference in rural and urban divorce rates, drawing on insights from labour economics and social psychology that have not previously been applied to family economics.


June 7, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Did a Survey Game Divorce Statistics?

From the Escapist:

The British tabloid Daily Mail said today that 15 percent of divorces filed in the U.K. for "unreasonable behavior" now cite videogame addiction as a cause. What the report fails to mention is that courts often won't pass a petition for divorce unless three or four reasons for the split are provided. After the heavy hitters like "lack of love and affection" and "an inability to deal with debts" are put down, it's not that big of a stretch to complain about your husband's videogaming habits.

More damningly, EuroGamer noted that an advertisement for videogaming stories related to divorce appeared on Divorce Online's Facebook page, offering £250 for people to tell their stories and appear a national newspaper. "[The newspapers] also tend to pay too!" the ad said.

Read more here.


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

Monday, June 6, 2011

Illegal Surrogacies in England and Wales?

From Mail Online:

Couples are being allowed to ‘buy’ babies from surrogate mothers even though they are breaking the law, a High Court judge has revealed.

Although surrogacy is legal in England and Wales, couples can only pay women carrying their child to cover ‘reasonable  expenses’ incurred during pregnancy, such as loss of earnings. 

Paying more, in a ‘commercial surrogacy’ arrangement, is illegal.

But Mr Justice Hedley, a specialist in family law, said he had granted parental orders to ‘intended parents’ who had paid women more than expenses to have their children.

He said that in certain cases, couples who had paid high fees should be allowed to keep the baby, to  prevent it being left ‘parentless  and stateless’.

The judge said that in the past few months he had granted four parental orders to such couples. His admission may be seen as a sign that childless couples who pay women vast sums of money to have their babies  need not fear prosecution.

Read more here.




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