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Articles 1 - 30 of 31
Full-Text Articles in Family Law
Institutionalized Silence: The Problem Of Child Voicelessness In Divorce Proceedings, Brandon Sadowsky
Institutionalized Silence: The Problem Of Child Voicelessness In Divorce Proceedings, Brandon Sadowsky
Brandon Sadowsky
In this paper, I present the current state of child representation in divorce proceedings. I argue that children should be represented in all divorce proceedings. I then consider the best interest and client-directed models of child representation and argue that each model is supported by important intuitions: paternalism and autonomy, respectively. I try to formulate a hybrid model that satisfies both of these intuitions.
Family Law, Sharon K. Lieblich
Family Law, Sharon K. Lieblich
University of Richmond Law Review
No abstract provided.
Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig
Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig
Margaret F Brinig
This paper considers whether an amendment to state divorce laws that strengthens its joint custody preference operates as a traditional default rule, specifying what most divorcing couples would choose or as a penalty default rule the parties will attempt to contract around.
While the Oregon statutes that frame our discussion here, like most state laws, do not state an explicit preference for joint custody, shared custody is certainly encouraged by Section 107.179, which refers cases in which the parties cannot agree on joint custody to mediation and by Section 107.105, which requires the court to consider awarding custody jointly. In …
Unhappy Contracts: The Case Of Divorce Settlements, Margaret F. Brinig
Unhappy Contracts: The Case Of Divorce Settlements, Margaret F. Brinig
Margaret F Brinig
This paper examines a particular type of contracts that is, sadly, increasingly frequent: the agreements produced by divorcing couples. They are unhappy contracts, agreements produced as a necessary part of exit from what is now suboptimal marriage. They are virtually required by many states and are, in theory at least, closely monitored by courts since, when children are involved, they will be incorporated into court orders.What parties to unhappy contracts do is attempt to minimize losses, rather than maximize gain. How are contracts structured that will do this, and how does a difference in the size or power of the …
No-Fault Laws And At-Fault People, Margaret F. Brinig, F. H. Buckley
No-Fault Laws And At-Fault People, Margaret F. Brinig, F. H. Buckley
Margaret F Brinig
Absent transaction costs, the Coase Theorem suggests that divorce reform would work no change in the frequency of divorce but perhaps would alter the distribution of marital wealth. However, divorce does involve substantial process costs, which no-fault lowered. This paper explores the question of what happened to state divorce rates because of the legal changes wrought by the family law revolution that began in the 1970s, isolating the effect of the legal variable from other demographic and social factors that might also explain the variation in divorce rates across states and across time.
Property Distribution Physics: The Talisman Of Time And Middle Class Law, Margaret F. Brinig
Property Distribution Physics: The Talisman Of Time And Middle Class Law, Margaret F. Brinig
Margaret F Brinig
No abstract provided.
Feminism And Child Custody Under Chapter Two Of The American Law Institute's Principles Of The Law Of Family Dissolution, Margaret F. Brinig
Feminism And Child Custody Under Chapter Two Of The American Law Institute's Principles Of The Law Of Family Dissolution, Margaret F. Brinig
Margaret F Brinig
No abstract provided.
Child Support Guidelines: The Good, The Bad, And The Ugly, Margaret F. Brinig, Douglas W. Allen
Child Support Guidelines: The Good, The Bad, And The Ugly, Margaret F. Brinig, Douglas W. Allen
Margaret F Brinig
Child support guideline systems do more than simply determine the amount of income to be transferred from the noncustodial to the custodial household. They create incentives, one way or another, for spouses to divorce and seek custody and support payments. We examine three cases found in North America, and find that the common method of income shares provides a decent guideline that does not create any perverse incentives for divorce. Percentage-of-obligor-income methods do worse than other systems, and can cause increases in divorce rates for families in which one spouse earns a high income. Finally, the Canadian system, which is …
Trading At Divorce: Preferences, Legal Rules And Transactions Costs, Margaret F. Brinig, Michael V. Alexeev
Trading At Divorce: Preferences, Legal Rules And Transactions Costs, Margaret F. Brinig, Michael V. Alexeev
Margaret F Brinig
No abstract provided.
Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig
Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig
Margaret F Brinig
To whom do spouses belong? Do they belong to their communities as well as each other and their immediate families? These questions are explored in an empirical paper demonstrating ways in which social capital in communities may affect even the marriages of people living in them.
The Role Of Socioeconomics In Teaching Family Law, Margaret F. Brinig
The Role Of Socioeconomics In Teaching Family Law, Margaret F. Brinig
Margaret F Brinig
No abstract provided.
Bargaining In The Shadow Of The Best-Interests Standard: The Close Connection Between Substance And Process In Resolving Divorce-Related Parenting Disputes, Jana B. Singer
Jana B. Singer
This essay, written for a Symposium celebrating the child custody scholarship of Professor Robert Mnookin, examines the close connection between changes in substantive child custody doctrine and changes in custody dispute resolution processes over the past 30 years. Part I of the article explores how the widespread adoption of an unmediated “best interest of the child” standard, and the ensuing rejection of the sole custody paradigm, precipitated a shift from adversarial to non-adversarial resolution of divorce-related parenting disputes. Part II of the essay reverses the direction of the analytic lens and considers how the shift from adversarial to non-adversarial dispute …
Marriage Is Between A Man And A Woman And . . . : Latest Evolution Of Marital Residence Regime In Contemporary China, Yu Di
Chicago-Kent Law Review
This Note discusses the controversial August 2011 Judicial Interpretation on the Marriage Law of China concerning the treatment of marital residence in divorce proceedings. The Interpretation gives great weight to the title under which the property is held, and commentators have criticized this approach as unfair to women. This Note examines the Interpretation from a historical and comparative viewpoint. Section I traces the development history of Chinese law of marital property. Section II summarizes the U.S. law on the most prominent scenario addressed by the new Interpretation, that of the distribution at divorce of a marital residence to the acquisition …
In Re Marriage Of Olhausen: The Characterization Of State Disability Retirement Benefits After Dissolution, John K. Hoover
In Re Marriage Of Olhausen: The Characterization Of State Disability Retirement Benefits After Dissolution, John K. Hoover
Pepperdine Law Review
No abstract provided.
In Re Marriage Of Brown: Every Family Lawyer Knows What It's Done--Do You Know What It Can Do?, Gordon Hartstein
In Re Marriage Of Brown: Every Family Lawyer Knows What It's Done--Do You Know What It Can Do?, Gordon Hartstein
Pepperdine Law Review
No abstract provided.
"Rethinking" Embryo Disposition Upon Divorce, Michael T. Flannery
"Rethinking" Embryo Disposition Upon Divorce, Michael T. Flannery
Faculty Scholarship
No abstract provided.
Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Michigan Law Review
The twenty-first century has seen the dawn of a new era of the family, an era that has its roots in the twentieth. Many of the social and scientific phenomena of our time - same-sex couples, in vitro fertilization, single-parent families, international adoption - have inspired changes in the law. Legal change has encompassed both constitutional doctrine and statutory innovations, from landmark Supreme Court decisions articulating a right to procreate (or not), a liberty interest in the care, custody, and control of one's children, and even a right to marry, to state no-fault divorce statutes that have fundamentally changed the …
Black Marriage, White People, Red Herrings, Melissa Murray
Black Marriage, White People, Red Herrings, Melissa Murray
Michigan Law Review
Ralph Richard Banks's Is Marriage for White People? is worlds away from Agatha Christie's novels. Decidedly a work of nonfiction, Banks's book considers the plight of middle-class African Americans who, according to statistics, are the least likely of any demographic group to get and stay married. Despite these obvious differences, Is Marriage for White People? shares some important commonalities with Agatha Christie's mysteries. Banks seeks to solve a mystery, but red herrings draw attention away from the true issue that should be the subject of Banks's concern. The mystery, of course, is the black marriage decline. In 1950, 78 percent …
Mediating The Religious Upbringing Issue In Divorce Cases, Katheryn M. Dutenhaver
Mediating The Religious Upbringing Issue In Divorce Cases, Katheryn M. Dutenhaver
Pepperdine Dispute Resolution Law Journal
The article presents information on the family dispute resolution based on divorce cases based on religion. The judicial orders in different jurisdictions related to custodial parent are considered. The difficulty facing the judges while deciding the remedies and the need of designing stand-alone dispute resolution system is discussed. The techniques utilized by the mediators in solving such disputes are also discussed.
How To Give The Dog A Home: Using Mediation To Solve Companion Animal Custody Disputes, Emily Franklin
How To Give The Dog A Home: Using Mediation To Solve Companion Animal Custody Disputes, Emily Franklin
Pepperdine Dispute Resolution Law Journal
The article presents information on the domestication of dogs with respect to the resolution of the custody disputes of the animals and the method of mediation for the solving the disputes of companion animals in the U.S. Companion animals are considered as the essential part of the family in the country. Information on the requirement of mediation with respect to the animal law and the family law of the U.S. is also presented.
Reimbursement Of Community Contributions To A Spouse's Education Upon Divorce: California Civil Code Section 4800.3, Suzanne E. Rand
Reimbursement Of Community Contributions To A Spouse's Education Upon Divorce: California Civil Code Section 4800.3, Suzanne E. Rand
Pepperdine Law Review
When the California Legislature passed California Civil Code section 4800.3, it attempted to create a remedy for the circumstances posed by the highly publicized case of In re Marriage of Sullivan. The legislature created a new cause of action for "reimbursement" of funds contributed to the education or training of a spouse. The question remains whether reimbursement is an equitable and workable remedy for the Sullivan type situation. This comment analyzes the section and suggests possible approaches to litigation of a section 4800.3 claim.
The Dischargeability In Bankruptcy Of Debts For Alimony And Property Settlements Arising From Divorce, John Francis Murphy
The Dischargeability In Bankruptcy Of Debts For Alimony And Property Settlements Arising From Divorce, John Francis Murphy
Pepperdine Law Review
No abstract provided.
Privatizing Family Law In The Name Of Religion, Robin Fretwell Wilson
Privatizing Family Law In The Name Of Religion, Robin Fretwell Wilson
Robin Fretwell Wilson
No abstract provided.
An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler
An Incomplete Revolution: Reexaming The Law, History, And Politics Of Marital Property, Mary Ziegler
Scholarly Publications
Did the divorce revolution betray the interests of American women? While there has been considerable disagreement about the impact of divorce reform on women’s standard of living, many agree that judicial practices involving the division of marital property and the allocation of alimony have systematically disadvantaged women. Most often, in the courts and the academy, commentators see these practices as evidence of the need for family law reform.
These conclusions rely on a shared account of the history of divorce reform. According to this account, the transformation of divorce law in the 1970s and 1980s was a “silent revolution,” a …
An Incomplete Revolution: Feminists And The Legacy Of Marital-Property Reform, Mary Ziegler
An Incomplete Revolution: Feminists And The Legacy Of Marital-Property Reform, Mary Ziegler
Michigan Journal of Gender & Law
As this Article shows, the conventional historical narrative of the divorce revolution is not so much incorrect as incomplete. Histories of the divorce revolution have focused disproportionately on the introduction of no-fault rules and have correctly concluded that women's groups did not play a central role in the introduction of such laws. However, work on divorce law has not adequately addressed the history of marital-property reform or engaged with scholarship on the struggle for the Equal Rights Amendment to the federal Constitution. Putting these two bodies of work in dialogue with one another, the Article provides the first comprehensive history …
The Future Of Family, Max D. Siegel
The Future Of Family, Max D. Siegel
Student Articles and Papers
The State organizes society into families, implicating and often ignoring various liberty and equality interests while fortifying a “traditional” family structure comprised of one man, one woman, and their mutually and exclusively conceived offspring. This structure has historically benefited the heterosexual elite within the United States, but modern advancements for sexual minorities suggest a new standard for State recognition of family. Queer liberation will erase the traditional family by rewriting its legal and social dimensions, resulting in laws and policies that track more closely with familial bonds outside a heteronormative, man-woman binary. This Article explores the ramifications of enhanced queer …
Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill C. Engle
Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill C. Engle
Journal Articles
American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment …
Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Linda C. Mcclain, Margaret F. Brining
Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Linda C. Mcclain, Margaret F. Brining
Faculty Scholarship
This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.
A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let …
The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey
The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey
Publications
This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.
While the situation that gave rise to the battered women's movement in the 1970s is often presumed …
Family Lawyering: Past, Present, And Future, John M. Lande, Forrest S. Mosten
Family Lawyering: Past, Present, And Future, John M. Lande, Forrest S. Mosten
Faculty Publications
In the past fifty years, divorce law has turned upside down. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. Today, courts regularly handle a much broader range of issues, including disputes about issues such as domestic violence; parental relocation; religious upbringing; payment for children's college education; grandparent and stepparent visitation rights; rights of same-sex and unmarried couples; alienation of parents and children; and the role of e-mail, the Internet, and cybersex in divorce.
Family law practice inevitably evolved in response to these social and legal changes. This …