Carbone: "Family Courts and the Invisible Middle in an Era of Inequality"

June Carbone (Minnesota) recently posted to SSRN her article Family Courts and the Invisible Middle in an Era of Inequality, Edward Elgar Research Handbook on Family Justice Systems (2023).  Here is the abstract:

This chapter would examine how family law interacts with groups that order informal relationships without marriage, adoption, or contract. Marriage and adoption once served to formalize family relationships. Family law then overwhelmingly addressed two distinct contexts: divorces that dissolved the parties’ relationship and state actions that intervened to address child welfare. Today, however, forty percent of births take place outside of marriage and ever large numbers of couples cohabit, marry, divorce, and cohabit again without necessarily formalizing the terms of their shifting relationships. The chapter will examine how family courts intersect with these changing relationships.

First, while the conventional literature describes these couples as “drifting” into family relationships, the chapter will argue that these patterns reflect class-based community norms tied to understandable wariness about marriage and commitment.

Second, the chapter will suggest that family courts fail to recognize the different norms underlying the relationships, which further increases the reluctance to interact with the family court, increasing the attractiveness of avoiding formalities.

Third, the chapter will maintain that rather than recognize community differences most proposed reforms simply seek to impose marriage-based assumptions on the unmarried.

The chapter will conclude that these patterns form a largely invisible system of family law in which working parents achieve a matter of autonomy only to the degree that they can succeed in staying out of court. The chapter will suggest that family courts cannot simply acknowledge the alternative norms because the dissonance with formal values is too great. Instead, the best hope for reform lies with increased support for informal resolutions, aided by community-based mediation, that gives the parties greater autonomy in resolving their own disputes.