Family Law Commons^™

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran

St. Mary's Law Journal

Abstract forthcoming

The Homesteading Rights Of Deserted Wives: A History, Hannah Haksgaard

Faculty Publications

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article …

The Integrity Of Marriage, Kaiponanea T. Matsumura

William & Mary Law Review

While the Supreme Court’s decision in Obergefell v. Hodges resolved a dispute about access to legal marriage, it also exposed a rift between the Justices about what rights, obligations, and social meanings marriage should entail. The majority opinion described marriage as a “unified whole” comprised of “essential attributes,” both legal and extralegal. The dissents, in contrast, were more skeptical about marriage’s inherent legal content. Justice Scalia, for instance, characterized marriage as a mere bundle of “civil consequences” attached to “whatever sexual attachments and living arrangements [the law] wishes.” This side debate has taken center stage in several recent disputes. In …

Spousal Support And Domestic Violence: What Happens When The Dependent Spouse Is The Abuser?, Maria Stamatelatos

Journal of Civil Rights and Economic Development

(Excerpt)

Therefore, this Note proposes that New York and other states enact legislation similar to that of the California Family Code, which enacted statutes that prevent someone from obtaining spousal support if they attempted to murder their spouse, committed a violent sexual felony against their spouse, or were convicted of a domestic violence offense against their spouse. The reformed legislation would prohibit judges from awarding spousal support to individuals convicted of attempting to murder their spouse, and would require courts to look carefully at the facts surrounding each case where a spouse has been indicted or convicted of a violent …

In The Right Direction, Family Diversity In The Inter-American System Of Human Rights, Macarena Sáez

Scholarly Articles in Law Reviews & Journals

This Article argues that the Inter-American System of Human Rights has contributed to a family system that embraces gender equality and non-heterosexual and gender non-conforming families. It argues that the system had, from its inception, an expansive idea of the family that included associations outside marriage. This was the basis for a robust development of the concepts of equality and non-discrimination by the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights. Although the IACtHR has only decided a handful of cases related to the non-heterosexual family, its rich case law on equality and the right to …

Searching The Legacy Of The Reformation For Lutheran Responses To Modern Family Law, Marie A. Failinger

Concordia Law Review

This article builds upon historical work on changes in the law of marriage, divorce and the family after the Reformation, and describes how modern Lutheran theology, formed during the Reformation, evaluates modern trends in American family law. From the key Lutheran theological insight that God is creatively ordering human activity as a partner with human beings, the Lutheran tradition approaches issues such as no-fault divorce and same-sex marriage with both trust and challenge.

Cohabitation Worldwide Today, Margaret Ryznar, Anna Stępień-Sporek

Georgia State University Law Review

Despite the increase in cohabitation around the world, legal responses to it remain limited, particularly in the last several years. Yet, there are universal issues at the end of a cohabitation, particularly related to property division. This article will survey the recent legal developments on the property consequences of cohabitation in both the United States and Poland, drawing on comparative lessons to suggest future developments in this area of law.

Getting To Equal: Resolving The Judicial Impasse On The Weight Of Non-Monetary Contribution In Kenya's Marital Asset Division, Benedeta Prudence Mutiso

Michigan Journal of Gender & Law

Marital property law reforms and changing international human rights standards in the late 20th and early 21st century prompted Kenya to end certain discriminatory practices against women, especially in the area of property rights. For 50 years, Kenya relied on England’s century-old law, the Married Women’s Property Act of 1882, to regulate property rights. In 2010, Kenya adopted a new Constitution that called for equality between men and women, and in 2013, Kenya enacted independent legislation in the form of the Matrimonial Property Act (MPA). The MPA provides a basis for trial courts to divide marital property upon divorce. Specifically, …

Searching The Legacy Of The Reformation For Lutheran Responses To Modern Family Law, Marie Failinger

Faculty Scholarship

This article builds upon historical work on changes in the law of marriage, divorce and the family after the Reformation, and describes how modern Lutheran theology, formed during the Reformation, evaluates modern trends in American family law. From the key Lutheran theological insight that God is creatively ordering human activity as a partner with human beings, the Lutheran tradition approaches issues such as no-fault divorce and same-sex marriage with both trust and challenge.

Reynolds V. United States, Rewritten, Laura T. Kessler

Utah Law Faculty Scholarship

In Reynolds v. United States, 98 U.S. 145 (1878), Chief Justice Morrison Waite, writing for a unanimous Supreme Court, upheld the federal Morrill Anti-Bigamy Act outlawing polygamy in the federal territories and providing criminal penalties for it. This is a re-writing of that opinion, presented in the form of a dissent, available in Feminist Judgments: Family Law Opinions Rewritten (Cambridge University Press, forthcoming 2020). Unlike the Court’s opinion, this dissent concludes that religious practice, as well as belief, is protected by the First Amendment. It therefore holds that a religious duty to engage in an unlawful practice may be a …

From Marriage To Households: Towards Equal Treatment Of Intimate Forms Of Life, Deborah Zalesne, Adam Dexter

Buffalo Law Review

Law and attitudes around marriage have changed drastically in our own history and are widely different across cultures. Same-sex marriage is now legal, polyamorous relationships are on the rise, and, as an empirical matter, marriage serves a different purpose than it did as little as forty years ago -- marriage is no longer a prerequisite for sexual intimacy, cohabitation, or parenthood. There are no essential elements to a definition of marriage to which the state can appeal without arbitrarily restricting citizens’ possibilities with respect to their most intimate relationships. Therefore, because any state-sanctioned version of marriage will be arbitrary, the …

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …

The Marital Wealth Gap, Erez Aloni

All Faculty Publications

Married couples are wealthier than people in all other family structures. The top 10% of wealth holders are, in great proportion, married. Even among the wealthiest households, married couples hold significantly more wealth than others. The Article identifies this phenomenon as the “Marital Wealth Gap,” and critiques the role of diverse legal mechanisms in creating and maintaining it. Marriage also contributes to the concentration of wealth because marriage patterns are increasingly assortative: wealth marries wealth. The law entrenches or even exacerbates these class-based marriage patterns by erecting structural barriers that hinder people from meeting across economic strata.

How can the …

Ménage À What? The Fundamental Right To Plural Marriage, Renuka Santhanagopalan

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Old Issues New Perspectives, Ronald Griffin

Faculty Books and Book Contributions

The book commences with Ronald C. Griffin‟s essay Ghost Town: The Death of Marriage, the Birth of Cohabitation, and the Emergence of the Single Woman. In his essay he revisits the history of marriage, the economics of marriage, the rise and demise of childhood, the emergence of new couplings and the social traumas that come with them.

The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo

Michigan Journal of Gender & Law

This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”

The central claim of this Article is thus that …

Solving Millennial Marriage Evolution, Kathleen E. Akers, Lynne Marie Kohm

University of Baltimore Law Review

No abstract provided.

It Takes A Village: Empowering The Dead Broke Parent, Wendy Tolson Ross

Faculty Works

No abstract provided.

Chained Against Her Will: What A Get Means For Women Under Jewish Law, Michelle Kariyeva

Touro Law Review

No abstract provided.

Introduction: For Better Or For Worse? Relational Landscapes In The Time Of Same-Sex Marriage, Michael W. Yarbrough

Publications and Research

As same-sex marriage has become a legal reality in a rapidly growing list of countries, the time has come to assess what this means for families and relationships on the ground. Many scholars have already begun to examine how marriage is helping some same-sex couples, but in this introduction I call for a broader and more critical research agenda. In particular, I argue that same-sex marriage crystallizes a key tension surrounding families and relationships in many contemporary societies. On the one hand, strict family norms are relaxing in many places, allowing more people to form more diverse types of caring …

The "P" Word: Ohio Should Adopt The Uniform Premarital Agreements Act To Achieve Consistency And Uniformity In The Treatment Of Prenuptial Agreements, Jenna Christine Colucci

Cleveland State Law Review

Throughout the United States, courts have used inconsistent standards for the interpretation of prenuptial agreements. Under Ohio jurisprudence, courts are concerned with protecting the vulnerable spouse or the economically disadvantaged party. This legal standard acknowledges the unique relationship of the parties to the contract and will generally review the procedural and substantive components of the prenuptial agreement. Conversely, other courts are weary of interfering with the contractual freedom of the parties and will only invalidate a prenuptial agreement upon a showing of fraud, duress, or misrepresentation. The Uniform Premarital Agreement Act was drafted in 1983 to address the inconsistent treatment …

Issues Of Improving The Regulation Of Circumstances Preventing Marriage In Family Law, U. Sharaxmetova

Review of law sciences

the article highlights the issues of circumstances on preventing marriage. Author, having studied the circumstances on preventing marriage, shares with the idea on improvement of family legislation.

Family Law, Allison Anna Tait

University of Richmond Law Review

Another year of family law activity in Virginia brought both new

legislation, which will likely have long-term impacts, as well as a

new set of judicial opinions that will bring changes to the Virginia

rules. The terrain covered in the legislation and opinions varies,

but it includes certain fixtures such as marriage and divorce requirements,

equitable distribution, spousal and child support, and

child custody. This brief overview addresses all these areas, beginning

with the legislative changes and then moving to the courts.

Regulating Nonmarriage, Albertina Antognini

Law Faculty Popular Media

In the Closing Thoughts column of UK Law Notes, Prof. Albertina Antognini discusses her research on the regulation of nonmarriage. Two years have elapsed since the Supreme Court recognized the constitutional right to marry in the landmark case of Obergefell v. Hodges. Much ink has been spilled in the opinion’s aftermath by scholars who have in turn lauded it for its promotion of dignity and equality, criticized it for having a conservative vision of what marriage entails, or pored over its reasoning to better understand the future it has ushered in. Underlying the opinion, and the recent scholarly …

Obergefell’S Ambiguous Impact On Legal Parentage, Leslie Joan Harris

Chicago-Kent Law Review

For more than thirty years, the central questions of the law of parentage have been when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Obergefell v. Hodges, the Supreme Court endorsed the claim that children whose parents are married are better off socially and legally than nonmarital children; its language could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court’s argument assumes that the same-sex couple—both members—are …

Judicial Discretion V. Predictable Outcomes: A Review Of The 2016 Amendments To The Illinois Marriage And Dissolution Of Marriage Act, David E. Braden

Chicago-Kent Law Review

In 2015, the Illinois General Assembly comprehensively amended the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Illinois legislators cited a desire to increase predictable outcomes and to minimize adversarial litigation as primary goals for passing this overall to Illinois’s marriage and divorce law. This Comment evaluates how the amendments advance the stated legislative goals of increasing predictable outcomes and minimizing litigation while maintaining flexibility for fact-specific decision-making through judicial discretion. While the results are mixed, this Comment identifies changes in key provisions to which practicing attorneys should take note.

Romantic Discrimination And Children, Solangel Maldonado

Chicago-Kent Law Review

In recent years, social scientists have used online dating sites to study the role of race in the dating and marriage market. This research has revealed a racialized and gendered hierarchy that disproportionately excludes African-Americans and Asian-American men. For decades, other researchers have studied the risks and outcomes for children who are raised in single-parent homes as compared to children raised by married parents.

Drawing on these studies, this Essay explores how racial preferences in the dating and marriage market potentially disadvantage the children of middle-class African-American women who lack or reject opportunities to intermarry relative to children of married …

Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra J.D., Mph

Chicago-Kent Law Review

In Obergefell v. Hodges, Justice Kennedy declared that “marriage is fundamental under the Constitution and [should] apply with equal force to same-sex couples.” This Article examines how the advent of marriage equality may impact the rights of same-sex couples to have biological children via assisted reproduction and surrogacy. Specifically, this Article points out the ways that the Obergefell decision affects the law of infertility. By the law of infertility, I mean the laws that require insurance coverage of infertility treatments and other assisted reproductive technologies (“ART”). Because same-sex couples are not able to have biological children with each other …

Parents, Babies, And More Parents, June Carbone, Naomi Cahn

Chicago-Kent Law Review

This Article makes two basic points. First, the three-parent family is here. Once states accept that parenthood does not depend on either biology or marriage, then three parents are inevitable unless the states go out of their way to rule that adults who otherwise meet their definitions of parenthood will not be recognized. Second, as three-parent family recognition increases, there are difficult questions on how to manage the status of each parent. This difficulty arises because the two major trends in the family law—the recognition of a multiplicity of family forms and the insistence on parental equality—are on a collision …

A Practical Solution To The Marriage Penalty, Margaret Ryznar

Pepperdine Law Review

In the federal income tax code, there is a marriage penalty resulting from tax brackets that do not double upon marriage. This marriage penalty persists despite universal condemnation of it, penalizing a significant portion of married women who work and many same-sex couples. This Article proposes a novel way to deal with this marriage penalty by creating a filing status for dual income couples that earn an amount within a particular percentage of each other. This filing status would be the same as the current married filing status, except it would double the rates of single filers by accommodating two …