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Full-Text Articles in Law
Religion And Child Custody, Margaret Brinig
Religion And Child Custody, Margaret Brinig
Journal Articles
This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …
Result Inequality In Family Law, Margaret Brinig
Result Inequality In Family Law, Margaret Brinig
Journal Articles
To the extent that family law is governed by statute, all families are treated as though they are the same. This is of course consistent with the equal protection guarantees of the US Constitution as well as those of the states. However, in our pluralistic society, all families are not alike. At birth, some children are born to wealthy, married parents who will always put the children’s interests first and will never engage in domestic violence. Many laws benefit these children, while, according to some academics, they either further disadvantage other children or at best ignore their needs.
This presentation …
Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brinig, Linda C. Mcclain
Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret F. Brinig, Linda C. Mcclain
Journal Articles
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 …
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
Journal Articles
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 …
Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig
Belonging And Trust: Divorce And Social Capital, Margaret F. Brinig
Journal Articles
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 One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock
The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock
Journal Articles
Family policy and the law based on it assume universals. That is, if marriage improves the welfare of the majority of couples and their children, it is worth pushing as a policy initiative. Further, laws will be written (or kept on the books) that privilege marriage over other family forms. Similarly, research that tells us that divorce harms children except following the relatively small number of highly conflicted marriages, spawns efforts to preserve troubled marriages or even to roll back liberal or relatively inexpensive divorce laws. With yet another example, since adopted children mostly do better than children left either …
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
Journal Articles
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
Journal Articles
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 …
Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig
Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig
Journal Articles
This paper considers the affect of amendments to state divorce laws that strengthen their joint custody preference. It does so in the context of suits by noncustodial parents challenging substantive custody standards not requiring equal custody at divorce. The complaint is that most custody laws, by using a best interests standard rather than equally dividing custodial time, violate substantive due process. Further, two states, Iowa and Maine, have recently amended their custody legislation to strongly presume joint physical custody.
After setting out the constitutional problem and describing the legislation in some detail, this paper tests the effects of the change …
The Role Of Socioeconomics In Teaching Family Law, Margaret F. Brinig
The Role Of Socioeconomics In Teaching Family Law, Margaret F. Brinig
Journal Articles
Applying knowledge from other social sciences makes particular sense with the law and economics of the family. Much of the behavior we see and experience within families is difficult to see or understand as economically rational, that is, narrowly self-interested. Many of the legal changes we make that appear to be rational, at least from a cost-benefit perspective, turn out to be unsatisfying or even counterproductive. Though economists tend to view motivations or "utility functions" based upon "revealed preference," extended models like that of socioeconomics go below what is revealed to measure, as best we can, people's attitudes and feelings …
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
Journal Articles
The Chief Reporter of the American Law Institute's Principles of the Law of Family Dissolution wrote in his introduction; "Children are necessarily at the heart of any set of principles of family law." My favorite chapter of the Principles is Chapter Two, entitled "Principles Governing the Allocation of Custodial and Decisionmaking Responsibilities for Children." As of this writing, Chapter Two holds the distinction of being the only portion to have been adopted by a state legislature. While other Chapters had Reporters who were women, Chapter Two not only had a feminist Reporter, but the "allocation principle" that forms the substantive …
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
Journal Articles
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
Journal Articles
Should the young professional's spouse get some share in a newly acquired career while the young military officer's will not? Does the division between alimony and property make any sense, given no-fault divorce? Is reimbursement for lost career opportunities plus a share in the couple's tangible property fair compensation for a divorcing spouse? Such difficult questions frame this piece, which will also—and I believe necessarily—digress into the nature of marriage, the duties of parenting, and modern divorce philosophy.
Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig
Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig
Journal Articles
When state legislatures enabled spouses to obtain divorces without proving fault, one of the real achievements was lower transaction costs. Although the benefit of lower transaction costs for divorce is not completely noncontroversial, the relaxed proof requirements mean that lawyers do not necessarily have to be involved in divorce proceedings. The vast majority of marriage dissolutions involve written agreements between the parties. No-fault divorce also energized the divorce mediation movement.
Mediation is the least intrusive form of third-party involvement in a dispute. Whereas a judge or arbitrator imposes an outcome on the disputants, the mediator assists the parties in reaching …
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
Journal Articles
For almost ten years, legal commentators have been aware of the possibility of applying economic bargaining principles to the problems of negotiations at the time of divorce. Although some cases and journal articles have mentioned the Mnookin and Komhauser article suggesting that custodial time and financial assets might be exchanged, attempts to apply the analysis have been confined to description. No one has attempted an empirical study to see if there really are trade-offs between custodial time and marital assets at the time of divorce, and there has been no formal model describing the process.
Furthermore, there has been no …