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Divorce

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Full-Text Articles in Law

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright Oct 2019

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1866, Danaya C. Wright

Danaya C. Wright

Historians of Anglo-American family law consider 1857 as a turning point in the development of modern family law and the first big step in the breakdown of coverture and the recognition of women's legal rights. In 1857, The United Kingdom Parliament ("Parliament") created a new civil court to handle all divorce and matrimonial causes, removing the jurisdiction of: the ecclesiastical courts over marital validity; the Chancery over custody of children and separate estates; the royal courts over marital property; and Parliament over full divorce. The new Divorce and Matrimonial Causes Court, a wing of the admiralty and probate courts, would …


Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney Sep 2019

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Susan S. Fortney

No abstract provided.


The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan Feb 2018

The Elimination Of Child “Custody” Litigation: Using Business Branding Techniques To Transform Social Behavior, Elena B. Langan

Elena B. Langan

This article discusses how rebranding principles, already being used to alter social behavior in other non-consumer contexts, could be utilized to accomplish the legislative goal to reduce litigation as well as diminish animosity in custody cases. Part II of this article discusses the impetus for a transformation in the way parents view custody disputes. Part III discusses basic branding principles and how companies establish a brand and can successfully change their branding. Part IV explores the evolution of the current custody brand, identifies eight states that have eliminated “custody” and, in some cases, “visitation” from their vernacular, and discusses, in …


The Law Of Attorney Fees In Family Law Cases, Robert G. Spector, Carolyn S. Thompson Dec 2016

The Law Of Attorney Fees In Family Law Cases, Robert G. Spector, Carolyn S. Thompson

Robert G. Spector

No abstract provided.


Religion And Child Custody, Margaret Brinig Oct 2016

Religion And Child Custody, Margaret Brinig

Margaret F Brinig

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 Oct 2016

Result Inequality In Family Law, Margaret Brinig

Margaret F Brinig

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 …


Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig Sep 2016

Does Parental Autonomy Require Equal Custody At Divorce?, Margaret F. Brinig

Margaret F Brinig

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 One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock Sep 2016

The One-Size-Fits-All Family, Margaret F. Brinig, Steven L. Nock

Margaret F Brinig

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 …


Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig Sep 2016

Does Mediation Systematically Disadvantage Women?, Margaret F. Brinig

Margaret F Brinig

No abstract provided.


Substantive Parenting Arrangements In The Usa: Unpacking The Policy Choices, Margaret Brinig Jun 2016

Substantive Parenting Arrangements In The Usa: Unpacking The Policy Choices, Margaret Brinig

Margaret F Brinig

Policy makers in the US currently debate whether to keep discretionary child custody standards, that is, “best interests of the child” clarified by some factors, or to move to a more rule-based system, such as a presumptive shared parenting regime. This article briefly sets out the problem, theoretical and evidence-based ways of approaching it, and some new results from a study of court documents from one US state indicating that a strong presumption of shared custody is associated with an increase in post-decree domestic violence. While presumptions or de facto rules should facilitate bargaining, these results may tip the balance …


Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau Apr 2016

Analytical And Comparative Variations On Selected Provisions Of Book One Of The Louisiana Civil Code With Special Consideration Of The Role Of Fault In The Determination Of Marital Disputes, Thomas E. Carbonneau

Thomas Carbonneau

This article is intended to be a type of "structuralist" commentary upon selected provisions in Book I of the Louisiana Civil Code. Its sole purpose is to illustrate, both for pedagogical and doctrinal reasons, some of the analytical difficulties to which these code provisions might give rise when they are read in a close textual fashion. It should be emphasized that this study is a textual commentary and not a historical assessment of the sources or origins of the code texts – the latter analysis is outside the purview of the present endeavor. Accordingly, this article consists of a critical …


A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau Apr 2016

A Consideration Of Alternatives To Divorce Litigation, Thomas E. Carbonneau

Thomas Carbonneau

This article argues for the need to inform divorce proceedings with a sense of the human reality of matrimonial breakdown. Part one assesses the adequacy of the existing adjudicatory approach to divorce by focusing upon the hiatus between the legal approach to divorce and the emotional content of divorce disputes. Part two lays the foundation for constructive change, providing a statistical portrait of divorce in contemporary America. Part four discusses mediation and suggests that it is a more viable alternative mechanism to divorce litigation. Part five discusses the implementation of a judicial arbitration structure.


Taming The Tigers: Domestic Violence, Legal Professionalism, And Well-Being, Jill Engle Jan 2016

Taming The Tigers: Domestic Violence, Legal Professionalism, And Well-Being, Jill Engle

Jill Engle

Domestic violence kills thousands of American women every year. In 2013, one of them was my client. My law school clinic represented a woman divorcing her abusive husband after twenty years of marriage. Three days after we served him with the divorce complaint, he walked into the grocery store where she worked and shot her dead. He then turned the gun on himself, and died from self-inflicted gunshot wounds. The lead student working her case listened in horror as one of our local colleagues who had heard the breaking news described it to her in a phone call to the …


Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill Engle Jan 2016

Promoting The General Welfare: Legal Reform To Lift Women And Children In The United States Out Of Poverty, Jill Engle

Jill Engle

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 …


Two Ways To End A Marriage: Divorce Or Death, Laura A. Rosenbury Oct 2015

Two Ways To End A Marriage: Divorce Or Death, Laura A. Rosenbury

Laura A. Rosenbury

Default rules governing property distribution at divorce and death are often identified as one of the primary benefits of marriage. This Article examines these default rules in all fifty states, exposing the ways property distribution differs depending on whether the marriage ends by divorce or death. The result is often counter-intuitive: in most states, a spouse is likely to receive more property if her marriage ends by divorce than if the marriage lasts until "death do us part." This difference can be explained in part by the choices of feminist activists over the past thirty-five years: feminists played a large …


Constrained Choice: Mothers, The State, And Domestic Violence, Rona Kaufman Kitchen Dec 2014

Constrained Choice: Mothers, The State, And Domestic Violence, Rona Kaufman Kitchen

Rona Kaufman Kitchen

Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers …


The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya Wright Nov 2014

The Crisis Of Child Custody: A History Of The Birth Of Family Law In England, Danaya Wright

Danaya C. Wright

This article attempts to show that the inter-spousal custody cases of the nineteenth century created such a crisis in equity that they eventually demanded a new court structure and a new set of legal doctrines. The custody cases posed such a profound threat to the stability and authority of the Chancery courts that within fifty years an entirely new court system was required. That court system combined the tripartite jurisdictions of the law, equity, and ecclesiastical courts in matrimonial matters. While many scholars and historians have applauded that moment, I would suggest that the new court was merely a way …


"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright Nov 2014

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

Danaya C. Wright

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children of the marriage, and …


The Case For Relocation – Relocation Vs Continuity: Bnt V Bns [2014] Sghc 87, Jonathan Chen Yeen Muk Sep 2014

The Case For Relocation – Relocation Vs Continuity: Bnt V Bns [2014] Sghc 87, Jonathan Chen Yeen Muk

Jonathan Muk

BNT v BNS (“BNT”) is significant for the fact that it is one out of two major Singapore decisions dealing with a foreigner parent seeking permanent relocation of the children overseas. In coming to her decision, Judith Prakash J overruled the trial judge’s decision and denied the mother permission to bring the children back to their home country, Canada. An analysis of the case is worthwhile, considering that in the earlier decision of AZB v AYZ [2012] 3 SLR 627, Andrew Ang J had granted the mother permission to relocate the children from Singapore to the United States of America. …


Law Is The Answer? Do We Know That For Sure? Questioning The Efficacy Of Legal Interventions For Battered Women, Leigh Goodmark May 2014

Law Is The Answer? Do We Know That For Sure? Questioning The Efficacy Of Legal Interventions For Battered Women, Leigh Goodmark

Leigh S. Goodmark

No abstract provided.


Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret Brinig, Linda Mcclain May 2014

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Margaret Brinig, Linda Mcclain

Margaret F Brinig

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 …


Incentivizing Divorce, Andrea B. Carroll Apr 2014

Incentivizing Divorce, Andrea B. Carroll

Andrea Beauchamp Carroll

Marriage is an important relationship, both for the parties to it and for society as a whole. Its benefits, stemming from the economies of scale and joint consumption inherent in the relationship, are largely unquestionable. And when marriage fails, the results are rather staggering. Economically, it is estimated that the annual cost of divorce to American taxpayers approaches $30 billion. From a social science perspective, the negative impacts of divorce on women and children have long been decried. In the face of these facts, we expect family law to fulfill a certain role. It should channel parties into the relationship …


Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle L. Drumbl Nov 2013

Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle L. Drumbl

Michelle L. Drumbl

None available.


Penalty Defaults In Family Law: The Case Of Child Custody, Margaret F. Brinig Oct 2013

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 Oct 2013

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 Oct 2013

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 Oct 2013

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 Oct 2013

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 Oct 2013

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 Oct 2013

Trading At Divorce: Preferences, Legal Rules And Transactions Costs, Margaret F. Brinig, Michael V. Alexeev

Margaret F Brinig

No abstract provided.