Law Commons^™

California Putative Spouses: The Innocent, The Guilty, And The Law, Helen Y. Chang

Helen Y Chang

The purpose of this article is to examine the historical roots of the putative spouse doctrine and its implementation into California’s family and community property system. Although California has historically recognized the putative spouse doctrine to save otherwise void or voidable marriages, California’s actual application of the doctrine has been piecemeal with a resulting patchwork of inconsistent statutes and judicial decisions. For example, a putative spouse is a “surviving spouse” under California’s Probate Code for purposes of intestate succession but a putative spouse is not a “surviving spouse” under the same Code for purposes of a family allowance during estate …

Leveling The Playing Field: Curing The Hidden Biases Against Fathers In Hawaii’S Child Custody Regime, Samuel C. Hodges

Samuel C. Hodges

No abstract provided.

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

All That Heaven Will Allow: A Statistical Analysis Of The Co-Existence Of Same Sex Marriage And Gay Matrimonial Bans, Deirdre Bowen

Deirdre M Bowen

This article offers the first analysis to date of national data evaluating whether defense of marriage acts (mini or super-DOMAs) preserve and stabilize the family. After finding that they do not—just as same sex marriage does not appear to destabilize families—the article analyzes what variables are, in fact, associated with family stability. Specifically, those variables are: families below the poverty line; men and women married three or more times; religiosity; percent conservative versus liberal in a state; disposable income; percent with bachelor’s degree; and median age of first marriage. Next, the article applies the sociological concepts of moral entrepreneurism and …

Innocent Spouse Relief - Relief From The Sneaky Spouse, Corinna Marie Cicmanec

Corinna Cicmanec

Innocent Spouse Relief: Relief from the Sneaky Spouse

This article discusses Internal Revenue Code § 6015, also known the as Innocent Spouse provision. This provision offers relief to spouses from the joint and several liability that stems from filing a joint return. Innocent Spouse Relief is available in certain situations when one spouse is “sneaky” in regards to disclosing financial information to the other spouse and the IRS. This article specifically analyzes how §6015 affects women, and the hurdles women face when filing successful claims. This paper explores the current problems with §6015 claims process, and suggests options for the …

A Home With Dignity: Domestic Violence And Property Rights, Margaret Johnson

Margaret E Johnson

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its …

Termination Of Copyright Transfers: The Author Spouse’S Last Laugh, Llewellyn Joseph Gibbons

Llewellyn Joseph Gibbons

The 1976 Copyright Act provides that an author may unilaterally terminate a transfer of copyright approximately 35 years after the initial transfer. In community property states, state law assumes that through the magic of the operation of state law, the author-spouse transfers the copyright that federal law initially vests in the author to the community property (marital) estate. Author-spouses are now entering the period when they may begin to terminate any putative copyright transfer to the community property estate or terminate other transfers that may be the basis for pre-or-post-nuptial agreements, property settlements, or dissolution decrees in divorce actions. This …

Manufacturing Moral Panic As Political Distraction: An Empirical And Social Theoretical Analysis Of Domas, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. After concluding that they do not, the article analyzes what variables are, in fact, correlated with family stability. Specifically, the relationships between families below the poverty line, men and women married three or more times, religiosity, percent conservative versus liberal in a state, disposable income, percent with bachelor’s degree, and median age of first marriage, and marriage and divorce trends is fully explored. Next, the article applies the sociological concepts of moral entrepreneurism, which …

I Wanna Marry You: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. The article examines marriage and divorce changes in trends for every state over the last ten years for which data is available comparing changes, if any, before and after a DOMA was enacted or same sex marriage was permitted. After concluding that DOMA does not play a role in either divorce or marriage changes in trends or rates, the article explores what variables are, in fact, correlated with family stability. Given that poverty, religiosity, …

Bringing Up Baby: Adoption, Marriage, And The Best Interests Of The Child, Robin Fretwell Wilson, W. Bradford Wilcox

Robin Fretwell Wilson

In the piece, Professor Brad Wilcox and I ask who should care for children when their biological parents cannot? This is a question of potentially explosive dimensions under new definitions of legal parentage proposed in this volume of the WILLIAM & MARY BILL OF RIGHTS JOURNAL. This question is also important today for evaluating state adoption laws. A significant number of states bar consideration of a prospective adopter’s marital or non-marital status. We believe these laws miss an important opportunity to maximize the best interests of each child being placed. In this piece, we take an exclusively child-centered approach, drawing …

Regulating The Family: The Impact Of Pro-Family Policy Making Assessments On Women And Non-Traditional Families, Robin S. Maril

Robin S. Maril

Beginning in the 1980s, pro-family advocates lobbied the Reagan administration to take a stronger, more direct role in enforcing traditional family norms through agency rulemaking. In 1986 the White House Working Group on the Family published a report entitled, The Family: Preserving America’s Future, detailing what its authors perceived to be the biggest threats to the “American household of persons related by blood, marriage or adoption – the traditional . . . family.” These threats included a lax sexual culture carried over from the 1960s, resulting in rising divorce rates, children born “out of wedlock,” and increased acceptance of “alternative …

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …

The New Frontier Of Advanced Reproductive Technology: Reevaluating Modern Legal Parenthood, Yehezkel H. Margalit Dr., John D. Loike Dr., Orrie Levy Adv.

Hezi Margalit

Assisted reproductive technologies (ARTs) have challenged our deepest conceptions of what it means to be a parent by fragmenting traditional aspects of parenthood. The law has been slow to respond to this challenge, and numerous academic articles have proposed models for adapting parentage laws to ARTs. In the coming years, however, scientific advancements in reproductive technologies, such as somatic cell nuclear transfer and stem cell technologies, will challenge both parentage laws and proposed legal models for traditional ARTs in new and fascinating ways. For instance, these advanced technologies could allow two women to create a child without any male genetic …

A Strategy For Teaching Objectivity To The Domestic Relations Student: Utilizing Psychodrama To Explore Attorney Empathy Toward Improving Family Law Outcomes, Bruce L. Beverly

Bruce L. Beverly

The basic domestic relations law course is often taught by the casebook method, with little reference to actual underlying human drama. In order to produce effective advocates, it is necessary for student to be brought out of the sterile case recitation model and into a role where the student experiences, in a controlled and directed fashion, some of the hardships faced by the players in a family law case. This article proposes that, in line with new emphasis on experiential learning and alternate learning styles, one might employ a psychodramatic approach to teaching the domestic relations course, in order to …

Meeting The Challenges Of Adoption In An Internet Age, Mary Kate Kearney, Arrielle Millstein

Mary Kate Kearney

No abstract provided.

Handbook Of The Law Of Persons And Domestic Relations. By Joseph W. Madden, Robert C. Brown

Dr Robert Brown

No abstract provided.

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

The Debate, David M. Smolin, Elizabeth Bartholet

David M. Smolin

This chapter is taken from a forthcoming book on Intercountry Adoption, edited by Judith L. Gibbons and Karen Smith Robati and forthcoming in June of 2012. The chapter constitutes a debate between Professor Elizabeth Bartholet and Professor David Smolin. Each independently was given three questions to answer, and then one opportunity to respond to the other's answers to those three questions, all with strict space limitations. The debate illustrates some of the starkly different perspectives regarding the law, policies, and facts relevant to intercountry adoption.

Homogenous Rules For Heterogeneous Families: The Standardization Of Family Law When There Is No Standard Family, Katharine K. Baker

Katharine K. Baker

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

Marriage As Partnership, Sanford N. Katz

Sanford N. Katz

In this essay honoring Professor Mary Ann Glendon, the author discusses the contract of partnerships concept of marriage as it applies to antenuptial agreements, cohabitation contracts, and property settlement agreements, the three contexts about which Professor Glendon has written in her books The New Family and the New Property (1981) and The Transformation of Family Law (1996).

New Directions For Family Law In The United States, Sanford N. Katz

Sanford N. Katz

This article provides a survey of one major development in family law in the United States that has occurred during the most recent past. This development is the change that has occurred in marriage-like relationships. The article begins with a discussion of contract cohabitation and the extent to which it reflected a change from traditional views of formal or informal marriage as the only legally acceptable model for adults who desired to live together. It shows how contract cohabitation laid the groundwork for the establishment of domestic partnership laws. These laws were first adopted by municipalities and then by states …

Preserving The Family Through Change For The Sake Of Future Generations, Sanford N. Katz

Sanford N. Katz

Within the last fifty years, a transformation has taken place in American law. Before then, family relationships, like parent-child relationship, were clearly defined by biology or adoption. Marriage was defined by gender. Marriage certificates and birth certificates evidenced one's legal status. The transformation that has occurred was the legal recognition that took reality into account that relationships can develop without formalities. No longer can it be said that either one is in a certain status or one is not. Marriage-like relationships have been recognized, like civil unions, as well as de facto parenthood. American law has now recognized that marriage …

Identifying Sperm And Egg Donors: Opening Pandora’S Box, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

The Ongoing Debate About Mediation In The Context Of Domestic Violence: A Call For Empirical Studies Of Mediation Effectiveness, Susan Landrum

Susan Landrum

For approximately three decades, scholars, mediators, and domestic violence victims’ advocates have debated whether mediation is an appropriate way to approach family law issues where the parties have a history of domestic violence. Those debates have addressed whether mediation is ever appropriate where there is a history of domestic violence and, if so, when it may be used and how the mediation process can provide for victims’ safety and fair mediation outcomes. There has also been much discussion about the need for mediator and attorney training on domestic violence issues, the proper design of effective screening processes, and the form …