Family Law Prof Blog

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

Tuesday, December 13, 2011

Kuznicki: "Marriage Against the State: Toward a New View of Civil Marriage"

Jason Kuznicki (Cato Institute) has posted "Marriage Against the State:  Toward a New View of Civil Marriage" (Cato Institute Policy Analysis No. 671 (2011)) on SSRN.  Here is the abstract: 

As U.S. courts have repeatedly declared, marriage is fundamentally a private, individual right. One implication of this view, clear but not always consistently applied, is that the federal role in marriage should be to get out of the way. When it cannot, it should behave in predictable, orderly, and low-cost ways so that individuals may conduct their family and private lives as they think best. When the federal government must act in this area, it should do so only with a view toward preserving individual rights. This paper considers federal marriage policy in a new light by suggesting that some, though far from all, of the federal provisions governing marriage may be understood as protections of this kind, or as guarantees of individual responsibility, as in the case of children. When marriage acts in such a way, it merits federal recognition, but not otherwise. 

Although privatizing all aspects of marriage may well be appealing, such an approach would result, at both state and federal levels, in much greater government interference in family life, higher taxes for married couples, invasions of privacy, difficulties related to child custody, and other negative consequences. In some areas,marriage is a defense against state power, and such a defense should not be lightly discarded. However, marriage should be decoupled from the tax code by adopting a flat tax; the Defense of Marriage Act should be repealed; and Congress should adopt language making it clear that civil and religious marriage are not the same institution, and that the existence of marriage as a legal category is neutral with respect to religion. Wherever possible, marriage penalties and bonuses in the tax code and welfare system should be eliminated.


December 13, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Renting Christmas Toys


BOSTON (CBS) – When you are a kid on Christmas morning, it’s all about volume. But when you are a parent, cruising the aisles of the toy-store in December, it’s about trying to balance a happy holiday with a reasonable budget.

Paul Reinsmith of Boston has found a great way to have plenty of toys under the tree, and all year, without breaking the bank.

Paul and his wife Pam discovered what they call the ‘Netflix’ of toys.

It’s called Toygaroo, a website that lets parents rent toys for a fraction of what they would cost to buy.

See a related video and read more here.


December 13, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Monday, December 12, 2011

Goldberg: "Opting In, Opting Out: Autonomy in the Community Property States"

Charlotte Goldberg (Loyola LA) has posted "Opting In, Opting Out:  Autonomy in the Community Property States" (72 La. L. Rev. 1 (2011)) on SSRN.  Here is the abstract:

This article examines how couples in community property states attempt to opt out of the “sharing” concept that is the hallmark of community property law. The discussion begins with why couples in community property states may want to opt out. Then the discussion explains how couples try to accomplish opting out of the communityproperty system by formal and informal methods, some successful and others not so successful. The methods used before and during marriage and after separation are examined. The main focus is on the California, Louisiana, and Washington community property law.


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

Call for Symposium Papers

Call for Symposium Papers- Lenahan (Gonzales) v. United States of America: Domesticating International Law. Symposium will be held at American University Washington College of Law, Washington, D.C. on April 17, 2012. Deadline for Submission of Abstracts is January 13, 2012.

The American University Washington College of Law’s Journal of Gender, Social Policy & the Law and Women and the Law Program invite symposium papers analyzing the Inter-American Commission on Human Rights’ recent decision in Lenahan (Gonzales) v. United States of America, Case No. 12.626. While other international cases have situated domestic violence as a human rights violation, Lenahan v. United States is the first individual complaint by a victim of domestic violence to be brought against the United States for a failure to enforce a mandatory protective order. The Inter-American Commission on Human Rights’ decision in favor of Ms. Lenahan confirms a state responsibility, rooted in international law, to protect individuals from so-called private violence.  The decision of the Inter-American Commission stands in stark contrast to the U.S. Supreme Court’s ruling on the same facts in the case of Castle Rock v. Gonzales, 545 U.S. 748 (2005), in which the Court held that Ms. Lenahan’s constitutional rights had not been violated because individuals do not have personal entitlement to police enforcement of a protective order.  

This Symposium celebrates the 20th anniversary of the influential American University Journal of Gender, Social Policy & the Law. The organizers welcome papers from scholars and practitioners (sorry, no student papers) exploring the multiple dimensions of these cases, including implications both in the United States and abroad.  For more information and to submit an abstract online, visit:


Read the full announcement here: Download Call.


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

Sunday, December 11, 2011

Wardle: "The Impacts on Education of Legalizing Same-Sex Marriage and Lessons from Abortion Jurisprudence"

Lynn Wardle (BYU ) has posted "The Impacts on Education of Legalizing Same-Sex Marriage and Lessons from Abortion Jurisprudence" (BYU Educ. & L. J. (2011)) on SSRN.  Here is the abstract: 

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.


December 11, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Saturday, December 10, 2011

Infertility Tax Credit

Rep. Lewis (D-Ga) has introduced a tax credit for infertility treatments in the Family Act 2011.  Read the bill here.


December 10, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, December 9, 2011

Dew & Wilcox: "Give and You Shall Receive? Generosity, Sacrifice, & Marital Quality"

Jeffrey Dew & W. Bradford Wilcox have posted "Give and You Shall Receive?  Generosity, Sacrifice, and Marital Quality" on SSRN.  Here is the abstract:

This study seeks to determine if spouses who reject the individualistic tenor of contemporary life by embracing a spirit of generosity and sacrifice in their marriages enjoy higher-quality marriages than their peers who do not. Relying on data from the new, nationally representative Survey of Marital Generosity (N=3,146), we found that for both husbands and wives, generosity — defined here as small acts of kindness, regular displays of affection and respect, and a willingness to forgive one’s spouse their faults and failings — was positively associated with marital satisfaction and negatively associated with marital conflict and perceived divorce likelihood. However, the association between making major sacrifices and marital quality varied by gender. Uniformly, wives who reported making major sacrifices for their husband were less satisfied in their marriages. But for husbands, this association depended on their levels of satisfaction with sacrificing. The more satisfied husbands reported being with sacrificing for their wives, the less making a major sacrifice for their wife was associated with lower marital satisfaction. Overall, then, regular expressions of generosity, but not major acts of sacrifice, are linked to higher quality marriages among contemporary spouses (aged 18-55).


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

Child Abduction

From the New York Times:

The week before they abducted their eight children from a foster care center in Queens, Nephra and Shanel Payne stocked up at Costco on supplies and dry goods, like graham crackers, diapers and infant formula for Nefertiti, their 11-month-old daughter. They stashed family photos and important documents in a storage facility and crammed a basketball and a football — essential for traveling with a Little League team’s worth of boys — into their car.

They had just been told, they said, that New York City’s child welfare agency was planning to put their children, some of whom had been in foster care for nearly three years, up for adoption rather than reuniting them with their parents.

“It’s either do something or let your kids get swallowed by a system that does not have a heart,” Mr. Payne, 35, said. “To do nothing would have been more hurtful, more reckless.”

Read more here.


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

Thursday, December 8, 2011

Background Checks Faulty?

From TribLIVE:

Jerry Sandusky, the former assistant football coach at the center of the Penn State child sexual abuse scandal, should have been a familiar figure to child welfare officials around his central Pennsylvania home for decades.

Long before his arrest this month on 40 charges related to child sex abuse, Sandusky successfully navigated the system's various background checks to become the adoptive father of five sons and a daughter, a foster parent, a host for a half-dozen Fresh Air Fund children from New York City and a congressional honoree as an "Angel in Adoption."

Court records show Sandusky and his wife, Dottie, were designated to coordinate visits with his grandchildren as recently as last year when one son's marriage began to disintegrate.

Read more here.


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

Wednesday, December 7, 2011

460 FL Adoptions in November--National Adoption Month

From WCTV:

In November, 460 children statewide became part of a permanent, loving family. Throughout the month, the Florida Department of Children and Families and our many community partners celebrated National Adoption Month by holding dozens of community group adoption ceremonies.

These adoptions included 44 sibling groups, including four groups of four siblings, three groups of five siblings and one group of seven siblings all being adopted together. The final number for this year is up slightly from 450 children adopted during November last year.

Read more here.


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

Tuesday, December 6, 2011

Relationship Splits Yield More than Split Ends

From Huffington Post:

Getting divorced is tough. Splitting your finances, your property, your kids, your time -- all of those factors can lead to high levels of stress. And according to a new study, all of that stress can lead to increased hair loss in divorced women.

Dr. Bahman Guyuron, the study's lead author, found that women who have had multiple marriages (including widows and divorcees) suffer more hair loss than those who are happily married. In men, marital status did not appear to impact hair loss patterns; genetics and excessive smoking were the top factors. He analyzed the lifestyles and hair patterns of 66 identical male twins and 84 female twins to determine which external factors contribute to hair loss.

Read more here.


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

Monday, December 5, 2011

Call for Papers

The Indiana Journal of Law and Social Equality is currently seeking submissions for its inaugural issue and symposium, “Whither Social Equality?” The issue and the symposium, to be held on March 30, 2012, in Bloomington, Indiana, will explore the current state of social equality thought from a variety of perspectives and address a variety of different forms of (in)equality (race, class, gender, sexual orientation, intersectionality, and familial status).

Submit papers, proposals, or abstracts to by January 16, 2012.  Papers may be accepted for publication, presentation at the symposium, or both. Papers may vary in length from short essays to more traditional law review length (latter preferred).


December 5, 2011 in Scholarship, Family Law | Permalink | Comments (2) | TrackBack (0)

Sunday, December 4, 2011

Westreich: "The 'Gatekeepers' of Jewish Marriage Law: Marriage Annulment as a Test Case"

Avishalom Westreich (Ramat Gan Law School) has posted "The 'Gatekeepers' of Jewish Marriage Law:  Marriage Annulment as a Test Case" (forthcoming J. L. & Religion) on SSRN.  Here is the abstract:    

From early classic commentators to modern Jewish Law scholars, the character of marriage annulment in Jewish Law has been much debated. These debates revolve around the appropriate reading of Talmudic sources. Nevertheless, textual analysis of the main passages reveals support for almost all the competing opinions. 

Normally, as the paper argues, Jewish Law is characterized by a pluralist discourse and, despite acrimonious controversies, the merits of competitive arguments are recognized, receiving some legitimacy – at least on a post factum level. Nevertheless, Jewish family law, and especially the case of marriage annulment, is characterized quite differently. In the last few decades some proposals of marriage annulment were raised as a solution to the problem of chained wives (agunot). On the basis of the analysis of Talmudic and post-Talmudic sources we could expect some acceptance of these proposals. Yet those solutions have met severe objections, frequently resulting in total rejection, accompanied by strong emotional reactions. These phenomena patently diverge from the pluralist hermeneutic discourse normally characterizing JewishLaw. The paper compares the discourse in the marriage annulment debate with related matters, such as tort compensation to chained spouses and the conversion conflict. Hence, the paper argues that social conflicts, struggles for monopoly, and the hold of symbolic capital – applying here the construct and terminology of Pierre Bourdieu – direct the development of this particular issue of Jewish Law. 

The paper contributes to three areas: first, it proposes a study of one of the core issues of Jewish Law, which has been intensively discussed and debated since antiquity to the present day. Second, the paper analyzes the discourse which characterizes the field, proposing a new comprehension of its dynamics, while indicating the conflicts and symbolic struggles serving as the main catalyst. Finally, the paper may be regarded as a test case for applying a critical-sociological theory to the development of a specific legal field, shedding new lights on the potential range of its application.


December 4, 2011 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Saturday, December 3, 2011

Family Law Changes in British Columbia


The B.C. government introduced sweeping legislation Monday that would overhaul provincial laws for divorce, separation and child custody.

The new Family Law Act is an effort to reduce costly legal battles by encouraging out-of-court settlements through mediation, arbitration or other means.

It makes a child's best interests the only consideration in parenting disputes and identifies children's safety as an overarching objective. It also includes a definition of family violence that will be used when determining what is in a child's best interests. The province's family law hasn't been updated since 1978 when it was first introduced, and the makeup of families, along with case law, has changed significantly since then, said Nancy Carter, executive director of the attorney general's civil policy and legislation office.

The changes would also "reduce judicial discretion" for judges to overrule agreements made by parents, said Carter.

Read more here.


December 3, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, December 2, 2011

Ratner: "Distribution of Marital Assets in Community Property Jurisdictions: Equitable Doesn't Equal Equal"

James Ratner (Univ. of Arizona) has posted "Distribution of Marital Assets in Community Property Jurisdictions:  Equitable Doesn't Equal Equal" (72 La. L. Rev. 21 (2011)) on SSRN.  [He also gave a great talk on it at a community property symposium LSU Law hosted in the spring - thanks, Jamie!]  Here is the abstract:

The hallmark of an American community property system is that community property is owned in present undivided one-half ownership by each spouse. At divorce, however, most community property jurisdictions parrot common law jurisdictions and divide the community property "equitably" rather than "equally." While “equitable” could be interpreted to differ from “equal” only in that “equal” requires a 50/50 split of each community asset and “equitable” requires only equal division of the community worth, “equitable” has recently been interpreted in a far more open-ended manner. As a result, vague factors including need, contribution, duration of the marriage, the age of the divorcing parties, as well as the behavior of the parties during the marriage, are used to justify substantially unequal divisions of community property at divorce. Recent Arizona cases exemplify this approach. The question of an equitable rather than equal division comes down to whether the flexibility of an open-ended, standardless notion of equitable division of the community worth is necessary to permit something other than a 50/50 distribution in the occasional situation where "everybody knows a 50/50 split yields a bad result." The need to address unusual situations likely led to the open-ended concept of equitable division articulated in the Arizona cases, but that interpretation cannot be constrained to the highly stylized facts that led to the interpretation. Instead, the interpretation injects into every divorce the potential for a fight over the need to depart from a 50/50 split of the community worth. In addition, because the open-ended conception of “equitable” includes authorizing divorce courts to consider whether spouses contributed to the marriage relationship, the use of “equitable” as envisioned by those decisions injects a form of fault inquiry into the calculus concerning the proper share of the community worth. The costs of the flexibility to adjust in a small number of situations seem far outweighed by the harms of distortion to the vast majority of divorces. Equal, rather than equitable, offers a superior, although imperfect, compromise between the competing claims of contribution and need as well as the legitimate societal desire to enable judicial flexibility.


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

Divorce in China

From the Telegraph:

There is no doubt that marriage is in crisis in China.

Once a dirty word, divorce is now so commonplace that in the first half of 2011 almost one million marriages ended, a jump of 17.2 per cent on last year according to the Ministry of Civil Affairs.

Amongst Mrs Yang's generation, the 18-30 age group, and in the major cities, around one-third of all marriages fail. But it is not just the young and the metropolitan middle classes who are walking away from wedded bliss. In the first quarter of 2011, the biggest rise in divorces was in the southwestern province of Sichuan and eastern Shandong Province.

Read more here.


December 2, 2011 in Divorce (grounds) | Permalink | Comments (0) | TrackBack (0)

Thursday, December 1, 2011

Hor: "Relatively Criminal: Spouses and the Criminal Process"

Michael Hor (National Univ. of Singapore) has posted "Relatively Criminal:  Spouses and the Criminal Process" (Singapore J. L. Stud. (2011)) on SSRN.  Here is the abstract:     

This article explores the interface between family law and criminal law in the criminal process, in the contexts of the spouse as a witness and the spouse as a victim. It probes the question of whether the criminal law should retain or develop special rules or policies when the marital relationship is potentially affected by the operation of the criminal process, contrasting the decline of spousal ‘exceptionalism’ in the context of spousal witnesses with the apparent vigor exhibited in the official reluctance to enforce the criminal law in situations of minor spousal violence.


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

Restaurant Tax on Bringing a Baby?

From the London Evening Standard:

A mother has told how she was made to pay £3 to take her newborn baby into Britain's biggest restaurant.

Natasha Young told staff at the Cosmo restaurant that her son Kaedon was just six weeks old and that she was breast-feeding him.

But they refused to take the charge off her bill, saying the pushchair was taking up space in the 800-seat, 22,000 sqft oriental buffet restaurant in the Valley Leisure Park, Croydon.

Ms Young said: "I was told the pushchair was taking up space. It was full but I had booked a table. When I got there they said I have to pay for the baby even though he does not eat. I was told he was taking up space. I offered to put the pushchair back in the car and they said we still had to pay for the space he was taking up."

Read more here.


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