reconceiving the family -...

RECONCEIVING THE FAMILY

This book provides a critical examination of and reflection on the American LawInstitute’s Principles of the Law of Family Dissolution: Analysis and Recommenda-tions, arguably the most sweeping proposal for family law reform attempted in theU.S. over the last quarter century. The volume is a collaborative work of individualsfrom diverse perspectives and disciplines who explore the fundamental questionsabout the nature of family, parenthood, and child support. The contributors areall recognized authorities on aspects of family law and provide commentary on theprinciples examined by the ALI – fault, custody, child support, property division,spousal support, and domestic partnerships, utilizing a wide range of analyticaltools, including economic theory, constitutional law, social science data, and lin-guistic analysis. This volume also includes the perspectives of U.S. judges andlegislators and leading family law scholars in the United Kingdom, Europe, andAustralia.

Robin Fretwell Wilson is a Professor of Law at the University of Maryland School ofLaw. She is the co-editor of The Handbook of Children, Culture & Violence and haspublished articles on the risks of abuse to children in the Cornell Law Review, theEmory Law Journal, the San Diego Law Review, and the Journal of Child and FamilyStudies. Professor Wilson has testified on the use of social science in legal decision-making in Joint Hearings before the Federal Trade Commission and Departmentof Justice. A member of the Executive Committee of the Family and Juvenile LawSection of the Association of American Law Schools, Professor Wilson frequentlylectures on violence to children, including presentations at Yale University’s EdwardZigler Center for Child Development and Social Policy and the National Societyfor the Prevention of Cruelty to Children in London, England.

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Reconceiving the FamilyCritique on the American Law Institute’sPrinciples of the Law of Family Dissolution

Edited by

Robin Fretwell Wilson

University of Maryland School of Law






cambridge university pressCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo

Cambridge University Press32 Avenue of the Americas, New York, NY 10013-2473, USA

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c© Robin Fretwell Wilson 2006

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First published 2006

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Library of Congress Cataloging in Publication Data

Reconceiving the family critique on the American Law Institute’s Principlesof the law of family dissolution / edited by Robin Fretwell Wilson.

p. cm.ISBN 0-521-86119-5 (hardcover)1. Divorce – Law and legislation – United States. 2. Custody of children – United States.3. Child support – Law and legislation – United States. 4. Equitable distributionof marital property – United States. 5. Divorce settlements – United States.I. Wilson, Robin Fretwell. II. Title.KF535.R43 2006346.7301′66 – dc22 2006010004

ISBN-13 978-0-521-86119-9 hardbackISBN-10 0-521-86119-5 hardback

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In Memory of Our Colleagues,

Lee Teitelbaum and David Westfall






Contents

Acknowledgments page xi

Foreword, by Mary Ann Glendon xiii

List of Contributors xvii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Robin Fretwell Wilson

PART ONE. FAULT

1 Beyond Fault and No-Fault in the Reform of Marital Dissolution Law . . . . . . . 9Lynn D. Wardle

2 A City without Duty, Fault, or Shame . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Scott FitzGibbon

PART TWO. CUSTODY

3 Partners, Care givers, and the Constitutional Substance of Parenthood . . . . . . 47David D. Meyer

4 Custody Law and the ALI’s Principles: A Little History, a Little Policy,and Some Very Tentative Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67Robert J. Levy

5 Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents . . . . 90Robin Fretwell Wilson

PART THREE. CHILD SUPPORT

6 Asymmetric Parenthood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121Katharine K. Baker

7 Paying to Stay Home: On Competing Notions of Fairnessand the Imputation of Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142Mark Strasser

PART FOUR. PROPERTY DIVISION

8 The ALI Property Division Principles: A Model of Radical Paternalism? . . . . . 163John DeWitt Gregory

vii






viii Contents

9 Unprincipled Family Dissolution: The ALI’s Recommendationsfor Division of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176David Westfall

10 You and Me against the World: Marriage and Divorce fromCreditors’ Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195Marie T. Reilly

PART FIVE. SPOUSAL SUPPORT

11 Back to the Future: The Perils and Promise of a Backward-LookingJurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209June Carbone

12 Money as Emotion in the Distribution of Wealth at Divorce . . . . . . . . . . . . . 234Katharine B. Silbaugh

13 Postmodern Marriage as Seen through the Lensof the ALI’s “Compensatory Payments” . . . . . . . . . . . . . . . . . . . . . . . . . . 249Katherine Shaw Spaht

PART SIX. DOMESTIC PARTNERSHIP

14 Domestic Partnership and Default Rules . . . . . . . . . . . . . . . . . . . . . . . . . . 269Margaret F. Brinig

15 Private Ordering under the ALI Principles: As Natural as Status . . . . . . . . 284Martha M. Ertman

16 Marriage Matters: What’s Wrong with the ALI’s DomesticPartnership Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305Marsha Garrison

17 Domestic Partnerships, Implied Contracts, and Law Reform . . . . . . . . . . . . 331Elizabeth S. Scott

PART SEVEN. AGREEMENTS

18 The Principles and Canada’s “Beyond Conjugality” Report: The Move towardsAbolition of State Marriage Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351Jane Adolphe

19 The ALI Principles and Agreements: Seeking a Balance between Statusand Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372Brian H. Bix

20 The Principles on Agreements: “Fairness” and InternationalHuman Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392Barbara Stark

PART EIGHT. JUDICIAL AND LEGISLATIVE PERSPECTIVES

21 A Formula for Fool’s Gold: The Illustrative Child Support Formulain Chapter 3 of the ALI’s Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 409Maura D. Corrigan






Contents ix

22 A Response to the Principles’ Domestic Partnership Scheme . . . . . . . . . . 425Jean Hoefer Toal

PART NINE. INTERNATIONAL REFLECTIONS

23 Empowerment and Responsibility: The Balance Sheet Approachin the Principles and English Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433John Eekelaar

24 The Past Caretaking Standard in Comparative Perspective . . . . . . . . . . . . . . 446Patrick Parkinson

25 Compensating Gain and Loss in Marriage: A Scandinavian Commenton the ALI Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472Tone Sverdrup

Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform, by CarlE. Schneider 489

Index 507






Acknowledgments

I am grateful to Mary Ann Glendon for believing in this project, for chairing the October2004 Workshop entitled “Critical Reflections on the American Law Institute’s Principlesof the Law of Family Dissolution” at Harvard Law School at which many of us refined ourchapters, and for her quiet cheerleading throughout. I am also grateful to Carl Schneiderfor letting me take a page from his Workshop playbook. It is entirely appropriate that MaryAnn and Carl form the “book-ends” for this volume since it could not have happenedwithout either of them.

I am indebted to the University of Maryland School of Law for providing a team ofresearch assistants without whom this volume could not have been completed withinmy lifetime. Michael Clisham, Kevin Madagan, and Mikaela Rossman devoted an entireyear to this project, while Tamiya Baskerville, Asher Chancery, Kristen King, JenniferMartin, Rahul Narula, Mona Shah, Amy Siegel, and DelY’vonne Whitehead poured them-selves into refining the final manuscript. Susan McCarty, Susan Herrick, and the lateRyan Easley of the University of Maryland Law Library provided citation verificationand legal research. Yvonne McMorris provided tireless secretarial assistance and, moreimportantly, moral support throughout this project. Jack Duncan provided expert assis-tance during the editing cycle, which was made through support from the Institute forAmerican Values. My former colleagues at the University of South Carolina also pro-vided support and encouragement for this volume, both while I was with them at USCand well after I left. David Owen provided invaluable guidance on publishing an editedcollection.

I am thankful for John Berger’s advice in the formative stages of this project and for KenKarpinski’s careful, thoughtful copy-editing. I was especially sorry that Lee Teitelbaumcould not join us at Harvard as originally planned, but am thankful to him for his warmsupport of this project and his mentoring.

I am indebted to the Family Law Council of the Institute for American Values for itsgenerous support of the October 2004 Workshop, out of which came the corpus of thisvolume. I am especially grateful to David Blankenhorn for his commitment to bringingtogether interesting people who have something interesting to say, and letting them say it.Finally, I am indebted to and admiring of the American Law Institute and the reportersfor the Principles of the Law of Family Dissolution, Professors Ira Ellman, Grace

xi






xii Acknowledgments

Blumberg, and Katherine Bartlett, for what is arguably the most significant family lawreform attempted in generations.

This is for the Dream Team: Mark Ancell, Michael Clisham, Jack Duncan, Jennifer Hilker,Pamela Melton, and Ken Wilkinson. I could not have done it without you. And, of course,this is for Glen.






Foreword

Mary Ann Glendon

The late twentieth century was a time of unprecedented changes in family behavior, familylaw, and ideas about marriage and family life. Starting in the mid-1960s, in North America,Europe, and Australia, a quake erupted across the whole set of demographic indicators.It came on so rapidly that it caught even professional demographers by surprise: birthrates and marriage rates fell, while divorce rates, births of children outside marriage,and the incidence of nonmarital cohabitation rose steeply. The director of the FrenchNational Demographic Institute characterized the changes as widespread, profound, andsudden: widespread, because so many nations had been affected; profound, because thechanges involved increases or decreases of more than 50 percent; and sudden, because theytook place in less than twenty years.1 Along with changes in family behavior came lessquantifiable but no less momentous shifts in the meanings that men and women attributeto sex and procreation, marriage, gender, parenthood, kinship relations, and to life itself.

These developments were part and parcel of social processes that Francis Fukuyamahas described collectively as “The Great Disruption”: rising affluence, accelerating geo-graphical mobility, increasing labor force participation of women (including mothers ofyoung children), more control over procreation, and greater longevity.2 By the 1990s, thedemographic indicators had more or less stabilized, but they have remained near theirnew high or low levels, registering only modest rises or declines since then.3 The legal andsocial landscape had been utterly transformed. Familiar landmarks had disappeared. Wewere living in a new world.

With hindsight, the question arises as to whether those years of turbulence provideda favorable climate for law revision. The fact is, however, that family law systems werecompletely overhauled, often very hastily, in the 1970s and 80s.4 Family law became atesting ground for various ways of reimagining family relations, and an arena for strugglesamong competing ideas about individual liberty, human sexuality, marriage, and familylife. Many unforeseen developments, notably a sharp increase in poor, fatherless families,now seem to have been influenced by legal changes that were often presented as merely“adapting the law to social reality.” Relatively little attention was paid to the ways in whichlaw also helps to shape social reality.

1 Louis Roussel, Demographie: deux decennies de mutations dans les pays industrialises, in I Family, State, andIndividual Economic Security 27 (M.T. Meulders and J. Eekelaar eds., 1988).

2 Francis Fukuyama, The Great Disruption (1999).3 Stephen Bahr, Social Science Research on Family Dissolution: What it Shows and How it Might be of Interest to Family

Law Reformers, 4 J.L. & Fam. Stud. 5, 5–6 (2002).4 See generally, Mary Ann Glendon, The Transformation of Family Law (1989).

xiii






xiv Foreword

Of the legal developments that have transformed family law, several represent pro-nounced departures from past arrangements: the reconceptualization of marriage and thefamily under the influence of ideas about gender equality, individual rights, and neutralitytoward diverse lifestyles; the trend toward lessened state regulation of marriage formationand dissolution as such (i.e., fewer restrictions on entry into marriage and fewer obstaclesto terminating marriage); and, despite the rise of “children’s rights,” the creation of a moreadult-centered system of family law.

When the entire complex of changes is viewed together, it is apparent that the storythe law tells about family life has been substantially rewritten. The legal narrative nowplaces much more emphasis on the rights of individual family members than on familialresponsibilities. Marriage is treated less as a necessary social institution designed to providethe optimal environment for child rearing than as an intimate relationship between adults.This historic transition has taken place through piecemeal changes, with little deliberationconcerning the likely social consequences of weakening the connections between marriageas a couple and marriage as a child-raising partnership.

In short, the affluent western nations have been engaged in a massive social experiment –one that has opened many new opportunities and freedoms to adults, but one that presentsnew risks where children and other dependents are concerned. By ratifying many changesin the sexual mores and marriage behavior of large numbers of adults, the law has playedits role in transforming the very experience of childhood. An unprecedented proportionof children are now spending all or part of their childhoods in fatherless homes, often inpoverty. In fact, female-headed families created by divorce, desertion, or single parenthoodnow constitute the bulk of the world’s poverty population. As for intact child-raising fam-ilies, their standard of living is generally lower than that of childless households, especiallyif the mother stays home to care for the children.

The political obstacles to more child-oriented policies, moreover, have increased. For,as the proportion of childless households grows, the culture has become ever more adultcentered.5 With declining birth rates, children are less visible in everyday life; adults are lesslikely to be living with children; and neighborhoods less likely to contain children. Supportfor measures that might address the needs of child-raising families becomes harder to rally.As the old saying goes, “Out of sight, out of mind.”

It thus seems evident that among the most pressing issues for family law and policyin the future will be those arising from the impaired ability of families to socialize thenext generation of citizens, and the diminished capacity of society’s support institutions(families, government, mediating structures of civil society) to furnish care for the veryyoung and other dependent persons. Even advanced welfare states still rely heavily onfamilies for the care of the young, the frail elderly, the sick, and the severely disabled,but the capacity of families to perform these functions has been dramatically reducedeverywhere. No society, for instance, has yet found a substitute for the care, services, andsupport formerly furnished by the unpaid labor of women. As the baby boom generationapproaches retirement age, it is becoming apparent that the combination of declining birthrates, greater longevity, and shortage of caretakers has brought health care and pensionsystems to the brink of crisis.

5 Peter Uhlenberg, Changing Adulthood Changes Childhood, (New York: Institute for American Values, WorkingPaper No. 57, 1998).






Foreword xv

What makes all these problems especially thorny is that their resolution will requirefinding a just balance among competing goods. After all, many of the developments thathave weakened legal and social family ties are unintended consequences of freedoms thatmodern men and women prize. No one, for example, wants to roll back the clock onwomen’s rights. The challenges are thus formidable: How can society take account ofchildren’s needs (and the preferences of many, perhaps most, mothers) while still providingequal opportunities to women? How can society respond to the needs of persons in brokenor dysfunctional families while strengthening, or at least not undermining, the stablefamilies upon which every society depends for the socialization of its future work forceand citizenry? How can policy makers develop adequate responses to families currently indistress while shifting probabilities so that fewer families will find themselves in distressedcircumstances in the future? When do the advantages for individuals of unprecedentedfreedom begin to be outweighed or nullified by the social costs of the cumulative effectsof individual choices on social and family life?

By the time the American Law Institute completed its Principles of the Law ofFamily Dissolution in 2002, family law had already been substantially transformed inall western legal systems. The Principles consolidated many of the transformative trendsand recommended further, far-reaching changes. Thus, the present volume, with its com-prehensive appraisal of that ambitious undertaking, could not have appeared at a morepropitious moment. Now that we are in a period of relative demographic equilibrium, thetime is ripe for analysis of how various innovations have worked out in practice, for evalu-ation of their consequences, and for charting future directions that will benefit individuals,families, the dependent population, and society as a whole. These are matters that needto be widely discussed and deliberated, not only among specialists, but among the peoplemost directly affected. How fortunate we are, then, to have this rich collection of essays byso many distinguished judges, practitioners, and scholars. Their diverse viewpoints willsurely raise the level of the national conversation about where family law has been, whereit is now, and where it ought to be headed.






List of Contributors

Jane F. Adolphe is an Associate Professor of Law, Ave

Maria School of Law. Her research largely concerns

issues pertaining to the family and international law.

Katharine K. Baker is a Professor and Associate Dean

at Chicago-Kent College of Law. She is the author of

numerous articles on family law, feminism, and

sexual violence.

Brian H. Bix is the Frederick W. Thomas Professor of

Law and Philosophy, University of Minnesota. He

works in Family Law, Jurisprudence, and Contract

Law. He is one of the five authors of Family Law:

Cases, Text, Problems (4th ed. 2004), and the author

of A Dictionary of Legal Theory (2004), Jurisprudence:

Theory and Context (4th ed. 2006), and Law,

Language, and Legal Determinacy (1993).

Margaret F. Brinig is the William G. Hammond

Professor of Law at the University of Iowa College of

law. She has written a number of books, including

From Contract to Covenant: Beyond the Law and

Economics of the Family (2000), and many articles on

family law.

June Carbone is the Associate Dean for Professional

Development, and a Professor of Law at Santa Clara

University. She served as Presidential Professor of

Ethics and the Common Good at the University’s

Markkula Center for Applied Ethics from 2001 to

2003. She is the author of From Partners to Parents:

The Second Revolution in Family Law (2000) and the

third edition of Family Law (2005) with Leslie Harris

and the late Lee Teitelbaum.

Justice Maura D. Corrigan was elected to the

Michigan Supreme Court in 1998 and was the Chief

Justice of that Court from 2001–2004. She currently

serves on the Pew Commission on Children in Foster

Care and on the U.S. Department of Health &

Human Services’ Advisory Task Force on Child

Support. Previously, while a member of the

Conference of Chief Justices, she co-chaired the

Problem Solving Courts Committee.

John Eekelaar is a Fellow of Pembroke College,

Oxford and was Reader in Family Law at Oxford

University until 2005. He has written and researched

on family law for many years. He is co-director of the

Oxford Centre for Family Law and Policy, and a

Fellow of the British Academy. He is now Academic

Director of Pembroke College.

Martha M. Ertman is a professor at the University of

Utah’s S.J. Quinney College of Law. She is the author

of a number of law review articles bridging

commercial and family law, and edited the book

Rethinking Commodification: Readings in Law &

Culture (2005) with Joan Williams.

Scott FitzGibbon is a professor at Boston College Law

School, a member of the American Law Institute, and

a member of the International Society of Family Law.

One of his major scholarly interests is jurisprudence

and legal philosophy, with special attention to

friendship and marriage in the Aristotelean tradition.

Marsha Garrison is Professor of Law at Brooklyn Law

School. She is the coauthor of Family Law: Cases,

Comments and Questions (5th ed. 2003) and has

written many articles on a diverse range of family law

issues.

Mary Ann Glendon is the Learned Hand Professor of

Law at Harvard University. Her books include A

World Made New: Eleanor Roosevelt and the Universal

Declaration of Human Rights (2001), A Nation Under

Lawyers: How the Crisis in the Legal Profession is

Transforming American Society (1994), and Rights

Talk: The Impoverishment of Political Discourse

(1991).

John DeWitt Gregory is the Sidney and Walter Siben

Distinguished Professor of Family Law at Hofstra

University. He is the author or co-author of several

books, including Property Division in Divorce

xvii






xviii Contributors

Proceedings: A Fifty State Guide (2003) (with Janet

Leach Richards and Sheryl Wolf), and a number of

articles.

Robert J. Levy is the William L. Prosser Professor of

Law Emeritus at the University of Minnesota Law

School. He is currently a Visiting Professor at Florida

International Law School. Professor Levy is the

author of several books about Family Law and several

articles about the ALI Principles. Professor Levy

was a co-Reporter for the Uniform Marriage and

Divorce Act.

David D. Meyer is a Professor and the Mildred Van

Voorhis Jones Faculty Scholar at the University of

Illinois College of Law. He has written widely at the

intersection of constitutional law and family law.

Patrick Parkinson is a Professor and Head of the Law

School at the University of Sydney, Australia. He is

the Chair of the Family Law Council (the Australian

Government’s advisory body) and also chaired a

review of the Child Support Scheme in 2004–05. He

has written many books and articles on family law,

child protection and the law of equity and trusts. He

is a member of the Executive Council of the

International Society of Family Law.

Marie T. Reilly is a Professor of Law at the University

of South Carolina School of Law. She is a teacher and

author of articles on bankruptcy and commercial law

subjects.

Carl E. Schneider is the Chauncey Stillman Professor

of Law and Professor of Internal Medicine at the

University of Michigan. He is the co-author of a

family-law casebook – An Invitation to Family Law:

Principles, Process and Perspectives (2d ed. 2000) –

and the author of The Practice of Autonomy: Patients,

Doctors, and Medical Decisions (1998).

Elizabeth S. Scott is a University Professor and Class

of 1962 Professor of Law at the University of Virginia.

She was a founder and is co-director of the Center for

Children, Families and the Law at the University of

Virginia. She is a co-author with Ira Ellman and Paul

Kurtz of a widely used casebook in Family Law, and

has also co-authored (with Walter Wadlington,

Charles Whitebread, and Samuel Davis) a casebook

on children in the legal system.

Katharine B. Silbaugh is Professor of Law and

Associate Dean for Academic Affairs at Boston

University School of Law. She is author of numerous

publications addressing family and employment law

aspects of household labor and the work-family

conflict.

Katherine S. Spaht is the Jules F. and Frances L.

Landry Professor of Law at Louisiana State University.

She is the author of a treatise on community property

and three textbooks on family law and successions.

She has authored numerous articles and chapters in

books on the subject of marriage.

Barbara Stark. Professor of Law at Hofstra Law

School, is the author of International Family Law: An

Introduction (2005), editor of Family Law and Gender

Bias: Comparative Perspectives (1992), and the author

of over fifty articles and chapters on family law and

human rights law.

Mark Strasser is the Trustees Professor of Law at

Capital University Law School in Columbus, Ohio.

He is the author of several books including On

Same-Sex Marriage, Civil Unions, and the Rule of Law:

Constitutional Interpretation at the Crossroads (2002)

and Legally Wed: Same-Sex Marriage and the

Constitution (1997).

Tone Sverdrup is Professor of Law, Faculty of Law,

University of Oslo. She is the author of several books,

including one on co-ownership in marriage and

unmarried cohabitation, and the standard family law

textbook in Norway (co-authored with Professor

Peter Lødrup).

Jean Hoefer Toal is the Chief Justice of the Supreme

Court of South Carolina and a former member of the

South Carolina House of Representatives. She is the

author of numerous law review articles and other

scholarly works.

Lynn D. Wardle is a Professor of Law at the J. Reuben

Clark Law School of Brigham Young University. He is

a past president of the International Society of Family

Law, and the author, co-author, or co-editor of many

books and law review articles mostly addressing

issues of family law, including Marriage and Same-Sex

Unions: A Debate (Lynn D. Wardle et al. eds.,

2003).

David Westfall held the John L. Gray and Carl F.

Schipper, Jr. professorships at Harvard Law

School, where he joined the faculty in 1955. His

publications include Estate Planning Law and

Taxation (4th ed. 2001); Forcing Incidents of Marriage

on Unmarried Cohabitants: The American Law

Institute’s Principles of Family Dissolution, published

in the Notre Dame Law Review; and Family Law

(1994).

Robin Fretwell Wilson is a Professor of Law at the

University of Maryland School of Law and a member

of the Executive Committee of the Family and

Juvenile Law Section of the Association of American

Law Schools.






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