Family Law Prof Blog

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

Tuesday, October 31, 2017

Arizona Tribe Ordered to Recognize Same-Sex Marriages

PHOENIX (AP) — A tribal court has cleared the way for gay couples to marry on an American Indian reservation in the Phoenix area after a two-year legal battle that could have repercussions for Native Americans elsewhere.

The court ruled that same-sex couples have a fundamental right to marry under the constitution of the Ak-Chin community and the Indian Civil Rights Act of 1968.

“This decision made it clear that the tribal law was unconstitutional under tribal law” and not just U.S. federal law, said attorney Sonia Martinez, who represented the same-sex couple in the lawsuit. “I have no idea if other tribes are going to do the same thing, but I think it at least opens the door.”

 

Read more here.

 

October 31, 2017 | Permalink | Comments (0)

Happy Halloween

Halloween

October 31, 2017 | Permalink | Comments (0)

Monday, October 30, 2017

UK Cracking Down On Child Maintenance

Parents will no longer be able to use a legal loophole to avoid paying child maintenance, under new laws to be brought in within months.

If a parent owes maintenance, payment can currently be taken only from a bank account held solely by them.

A "small minority" are avoiding payments by having a joint account with a partner, the government says.

It says new rules mean money can be taken from joint accounts, which could mean an extra £390,000 being collected.

 

Read more here.

October 30, 2017 in Child Support Enforcement | Permalink | Comments (0)

Higdon Recent Family Law Articles

Michael Higdon (University of Tennessee College of Law) has recently posted two family law articles to SSRN:

Polygamous Marriage, Monogamous Divorce, 67 Duke L.J. 79 (2017).  Here is the abstract:

Could the constitutional right to marry also encompass polygamy? That question, which has long intrigued legal scholars, has taken on even greater significance in the wake of Obergefell v. Hodges. This Article answers that question in a novel way by scrutinizing the practice of plural marriage through the lens of economic game theory, exploring the extreme harms that would befall the state should polygamy become law. More specifically, the Article delves into the ex ante consequences of legalization, not on practicing polygamists (as is typically the focus), but on sequential bigamists—that is, those who never intend to have more than one spouse at any given time but who nonetheless marry more than one person in their lifetime. The Article concludes that the state has a compelling economic interest in limiting marriage to two people. If polygamy were to become the law of the land, states could no longer prohibit bigamy. In turn, separating couples would lose one of the strongest incentives they currently have to choose formal divorce proceedings over the seemingly simpler option of mutual desertion: the threat of criminal charges for bigamy. In essence, a sequential bigamist could then marry multiple times in his lifetime without ever divorcing and, at the same time, without risking a criminal charge of bigamy. Such actions—dubbed “sequential polygamy”—would compromise the state’s interest in protecting its citizens from financial harms. After all, divorce proceedings provide the state with an opportunity to intercede into the process, thereby obtaining some assurance that those who are leaving a marriage are not doing so at their financial peril. With the legalization of polygamy, however, bigamy becomes a thing of the past, eroding the state’s ability to encourage divorce as a means of safeguarding the health and safety of its citizens. Most concerning is the impact this change would have on those living in poverty—the people likely to be hardest hit by any societal shift away from formal divorce. Finally, any attempts by the state to distinguish between bigamy and polygamy (for example, by permitting plural marriage but only if all spouses consent), would fail to ameliorate the resulting harm to its citizens.

 

Constitutional Parenthood, Iowa L. Rev. (forthcoming).  Here is the abstract:

Despite having recognized the constitutional rights of parents almost a hundred years ago, the Supreme Court has not weighed in on the subject of who qualifies as a “parent” under the Fourteenth Amendment in thirty years. In light of the Court’s silence, the states have been forced to individually grapple with the issue of constitutional parenthood — a task made exponentially more difficult by the fact that the last thirty years have ushered in an avalanche of change when it comes to the American family. With such societal changes as advances in assisted reproduction, the legalization of same-sex marriage, and the increased frequency of divorce, remarriage and cohabitation, states now regularly encounter claims of parental identity that thirty years ago would have been unimaginable. Nonetheless, the states have persevered, adopting a number of approaches to deal with these increasingly thorny issues. The problem, however, is that the constitutional protections that are afforded parents now vary by state. Even more troubling is the fact that some states have defined “parent” in such a way as to discriminate against those families that do not comport with that states’ conception of the “ideal” family. To solve this problem, this Article makes two proposals. First, the Supreme Court must offer more guidance on how states may define constitutional parenthood. Although a definitive definition of the term is both impractical and unrealistic, the Court can and should delineate the outer boundaries of that constitutional standard. Second, taking a cue from some of the tests developed by the states, this Article proposes what exactly those boundaries should be so as to help craft a definition of constitutional parenthood that is more responsive to and protective of the twenty-first century family.

October 30, 2017 | Permalink | Comments (0)

Sunday, October 29, 2017

Australia Prepares for Same-Sex Marriage Vote

From Reuters:

SYDNEY - (Reuters) - Thousands of people rallied around Australia on Saturday urging the legalization of same-sex marriage, one week before final ballots can be submitted in a contentious postal survey on the issue that has divided the country.

The largest crowd was in Sydney, where organizers said between 5,000 and 10,000 people gathered in front of Central Station before marching along one of the city’s biggest roads to Victoria Park.

Read more here.

October 29, 2017 | Permalink | Comments (0)

Saturday, October 28, 2017

New York's Low Divorce Rate

From The New York Post:

Forget Virginia, New York is for lovers!

Love is alive in the Empire State, which has the country’s fourth lowest divorce rate, new data reveals.

And couples stuck it out even more often New Jersey, which ranked the third best place to get hitched, according to census data compiled by the blog 24/7 Wall Street.

In New York, only 12.9 per 1,000 married people called it quits in 2016, according to census data. In New Jersey 12.7 per 1,000 people split the same year.

Read more here.

October 28, 2017 | Permalink | Comments (1)

Friday, October 27, 2017

Indiana's High Divorce Rates

From the Indy Star:

Indiana has the sixth highest divorce rate among the 50 states, according to a new report by financial website 24/7 Wall Street.

Low incomes may lead to the demise of many marriages in the Hoosier state.

"The median household income of $52,314 a year is more than $5,000 less than the nationwide median income of $57,617," the report states.

Read more here.

October 27, 2017 | Permalink | Comments (0)

Thursday, October 26, 2017

Custody Order Halted for Convicted Rapist

From USA Today:

SANDUSKY, Mich. — A Michigan district court judge stayed his order Tuesday granting a rapist joint custody and parenting time as father of an 8-year-old boy after the judge learned details of the case.

The original problem? Apparently a standardized form, said Rebecca Kiessling of Rochester Hills, Mich., the lawyer for the boy's mother. Kiessling also is co-founder of the group Hope After Rape Conception.

Read more here.

October 26, 2017 | Permalink | Comments (0)

Wednesday, October 25, 2017

Detained immigrant seeking abortion

From The Los Angeles Times:

The ACLU asked a federal appeals court Sunday night to reenter the case of a 17-year-old pregnant immigrant in detention whose request for an abortion has been blocked by federal officials.

The woman, identified in court as Jane Doe to protect her privacy, has been held in a federal detention center in south Texas since crossing the border illegally in September.

Read more here.

October 25, 2017 | Permalink | Comments (0)

Tuesday, October 24, 2017

Occupations & Divorce Risk

From Naomi Cahn and June Carbone, writing for the Institute for Family Studies:

A recent report on which occupations have the highest and lowest divorce rates intrigued us. The studyanalyzed data from the 2015 American Community Survey, and, based on the number of people in a particular occupation who had married at least once, calculated the percentage of people who divorced. We had fun discovering the likelihood of divorce for a variety of occupations: for example, librarians have about a 28% chance of divorce, while phlebotomists have approximately a 46% chance, according to this study.

But as researchers who have looked at the role of economics and race in marriage and divorce, we wanted to see if the data, broken down by occupation, supported other studies on the relationship between money, marriage, and divorce.

People with less income are less likely to be married in the first place, and more likely to be divorced, as a recent IFS study discussed. About 25% of “poor” adults (in households with income below the 20th percentile) aged 18 to 55 are currently married, compared to 39% of working-class adults (in households with income between the 20th and 50th percentiles), and 56% of middle- and upper-class adults (above the 50th percentile). Furthermore, while under one-third of ever-married middle- and upper-class people have ever been divorced, 40% of working-class and poor men and women who have ever been married have also been divorced.

We also know that wealthier people report being happier in their marriages than low-income individuals: as Bloomberg recently reported, 53% of those who describe themselves as lower class rate themselves as happy in marriage, compared to 70% of those who rate themselves as upper class.

Read more here.

October 24, 2017 | Permalink | Comments (0)

Monday, October 23, 2017

Prenup in Modern Love

The prenup is the feature of a recent New York Times "Modern Love" column.  Read it here.

 

October 23, 2017 | Permalink | Comments (0)

Sunday, October 22, 2017

More Women Unfaithful

From CNN:

One of the more interesting facts in Esther Perel's new book, State of Affairs: Rethinking Infidelity, comes near the beginning.

Since 1990, notes the psychoanalyst and writer, the rate of married women who report they've been unfaithful has increased by 40 percent, while the rate among men has remained the same.
 
Read more here.

October 22, 2017 | Permalink | Comments (0)

Saturday, October 21, 2017

Guardianship

From the New Yorker:

Guardianship derives from the state’s parens patriae power, its duty to act as a parent for those considered too vulnerable to care for themselves. “The King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries,” reads the English statute De Prerogative Regis, from 1324. The law was imported to the colonies—guardianship is still controlled by state, not federal, law—and has remained largely intact for the past eight hundred years. It establishes a relationship between ward and guardian that is rooted in trust.

In the United States, a million and a half adults are under the care of guardians, either family members or professionals, who control some two hundred and seventy-three billion dollars in assets, according to an auditor for the guardianship fraud program in Palm Beach County. Little is known about the outcome of these arrangements, because states do not keep complete figures on guardianship cases—statutes vary widely—and, in most jurisdictions, the court records are sealed. A Government Accountability report from 2010 said, “We could not locate a single Web site, federal agency, state or local entity, or any other organization that compiles comprehensive information on this issue.” A study published this year by the American Bar Association found that “an unknown number of adults languish under guardianship” when they no longer need it, or never did. The authors wrote that “guardianship is generally “permanent, leaving no way out—‘until death do us part.’ ”

When the Norths were removed from their home, they joined nearly nine thousand adult wards in the Las Vegas Valley. In the past twenty years, the city has promoted itself as a retirement paradise. Attracted by the state’s low taxes and a dry, sunny climate, elderly people leave their families behind to resettle in newly constructed senior communities. “The whole town sparkled, pulling older people in with the prospect of the American Dream at a reasonable price,” a former real-estate agent named Terry Williams told me. Roughly thirty per cent of the people who move to Las Vegas are senior citizens, and the number of Nevadans older than eighty-five has risen by nearly eighty per cent in the past decade.

In Nevada, as in many states, anyone can become a guardian by taking a course, as long as he or she has not been convicted of a felony or recently declared bankruptcy. Elizabeth Brickfield, a Las Vegas lawyer who has worked in guardianship law for twenty years, said that about fifteen years ago, as the state’s elderly population swelled, “all these private guardians started arriving, and the docket exploded. The court became a factory.”

Pamela Teaster, the director of the Center for Gerontology at Virginia Tech and one of the few scholars in the country who study guardianship, told me that, though most guardians assume their duties for good reasons, the guardianship system is “a morass, a total mess.” She said, “It is unconscionable that we don’t have any data, when you think about the vast power given to a guardian. It is one of society’s most drastic interventions.”

Read more here.

October 21, 2017 | Permalink | Comments (0)

Friday, October 20, 2017

Divorce is Genetic

From PsyPost:

Children of divorced parents are more likely to get divorced when compared to those who grew up in two-parent families — and genetic factors are the primary explanation, according to a new study by researchers at Virginia Commonwealth University and Lund University in Sweden.

“Genetics, the Rearing Environment, and the Intergenerational Transmission of Divorce: A Swedish National Adoption Study,” which will be published in a forthcoming issue of the journal Psychological Science, analyzed Swedish population registries and found that people who were adopted resembled their biological — but not adoptive — parents and siblings in their histories of divorce.

...

The study’s findings are notable because they diverge from the predominant narrative in divorce literature, which suggests that the offspring of divorced parents are more likely to get divorced themselves because they see their parents struggling to manage conflict or lacking the necessary commitment, and they grow up to internalize that behavior and replicate it in their own relationships.

Read more here.

October 20, 2017 | Permalink | Comments (0)

Thursday, October 19, 2017

Single Moms in Iceland

From CNN:

"What would a society look like without marriage?"
 
The question popped into my brain after I stumbled across a list of countries with the most unwed mothers.
 
With 40% of its babies born out of wedlock, America sits near the middle of the global pack in this category. Conservative Turkey brings up the rear with a scant 3%.
 
And the nation at the top of the list? The world leader in single moms?
 
Iceland.
 
Read more here.

October 19, 2017 | Permalink | Comments (0)

Wednesday, October 18, 2017

Marriage as Mark of Privilege

From the New York Times:

Marriage, which used to be the default way to form a family in the United States, regardless of income or education, has become yet another part of American life reserved for those who are most privileged.

Fewer Americans are marrying over all, and whether they do so is more tied to socioeconomic status than ever before. In recent years, marriage has sharply declined among people without college degrees, while staying steady among college graduates with higher incomes.

Currently, 26 percent of poor adults, 39 percent of working-class adults and 56 percent of middle- and upper-class adults ages 18 to 55 are married, according to a research brief published from two think tanks, the American Enterprise Institute and Opportunity America.

In 1990, more than half of adults were married, with much less difference based on class and education: 51 percent of poor adults, 57 percent of working-class adults and 65 percent of middle- and upper-class adults were married.

Read more here.

October 18, 2017 | Permalink | Comments (0)

Tuesday, October 17, 2017

We Expect Too Much From Marriage

From the Atlantic:

Tall, dark, handsome, funny, kind, great with kids, six-figure salary, a harsh but fair critic of my creative output ... the list of things people want from their spouses and partners has grown substantially in recent decades. So argues Eli Finkel, a professor of social psychology at Northwestern University in his new book, The All-or-Nothing Marriage.

As Finkel explains, it’s no longer enough for a modern marriage to simply provide a second pair of strong hands to help tend the homestead, or even just a nice-enough person who happens to be from the same neighborhood. Instead, people are increasingly seeking self-actualization within their marriages, expecting their partner to be all things to them. Unfortunately, that only seems to work if you’re an Olympic swimmer whose own husband is her brusque coach. Other couples might find that career-oriented criticism isn’t the best thing to hear from the father of your 4-year-old. Or, conversely, a violinist might simply have a hard time finding a skilled conductor—who also loves dogs and long walks on the beach—on Tinder.

Read more here.

October 17, 2017 | Permalink | Comments (0)

Monday, October 16, 2017

Modern Arranged Marriage in the U.S.

From New York Times:

Shankar Prasad wasn’t supposed to want this.

He was born in the United States, the third of four brothers from a family who immigrated to this country from India in 1975. He grew up in New Jersey. He went to Rutgers. He worked for a hedge fund in New York. In short, he had a “modern” American life.

He was supposed to meet the love of his life in a bar in the East Village of Manhattan. Instead, in 2008, he told his mother he wanted to get married — and he wanted her help.

“Everybody wants that romantic story, the boy-meets-girl that you see in every movie and TV show,” said Dr. Prasad, 35, the associate provost for global engagement and strategic initiatives at Brown University. “This is our version of a boy-meets-girl. It just happens to be somebody who looks like you and speaks the same language as you do and comes from your culture. But it’s the same idea.”

Dr. Prasad had willingly entered what most would describe as the westernized version (though it also happens in South Asia) of an arranged marriage.

No, he did not meet his wife on his wedding day or fly off to India and come back with his partner a month later. Instead, with his mother’s help, Dr. Prasad made use of a network that has been in place in the United States for at least two generations, with one goal in mind: marriage.

Read more here.

October 16, 2017 | Permalink | Comments (0)

Sunday, October 15, 2017

Divorce Jeans?

From the New York Times:

You’d like to know how Ms. Abedin is doing a week and a half after appearing in divorce court? Look at her jeans.

Ms. Abedin seems to be taking the path of the divorce makeover, a fairly common ritual in the painful breakup process. Going for a new look allows you to take the white-hot glare off a difficult part of your life and focus on something else. It can signal who you’d like to become.

...

Some spend ridiculous amounts of money on their makeovers: Amanda Sanders, a makeover artist in New York, told The New York Post in May that she charges $250 an hour to revamp newly single women.

For Geneen Wright, 42, of West Hollywood, Calif., her look completely changed from the businesslike gray-and-black minimalist uniform she often wore during her marriage to Daniel Humm, the head chef and co-owner of the Manhattan restaurant Eleven Madison Park.

“During a marriage there’s a lot you can’t control,” Ms. Wright said. “But my clothing was the one thing I could control to be perfect. I could be perfectly put together.”

Read more here.

October 15, 2017 | Permalink | Comments (0)

Saturday, October 14, 2017

What To Do With Old Wedding Band

From Today:

Jordana Horn was cleaning out her desk recently when she found a surprise buried in the back of a drawer: her wedding band from a previous marriage.

Horn, a TODAY Parents contributor, divorced her first husband nearly a decade ago and has since remarried, so she hadn’t thought about this old ring for a while. Still, the platinum band represented an important chapter in her life and she didn’t want to just leave it collecting dust.

...

When it comes to etiquette, there are no established rules for dealing with rings following a split, says etiquette guru Lizzie Post, a spokesperson for the Emily Post Institute and host of the Awesome Etiquette podcast.

However, some common decency should apply when it comes to heirloom jewelry, Post says.

Read more and see the video here.

October 14, 2017 | Permalink | Comments (0)