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Family Law - Leslie J. Harris, Lee E. Teitelbaum, June R. Carbone I’ve been to over thirty weddings in my life. It might be approaching fifty, but I lost count a long time ago. When I say this, people often look at me like I’m saying I hate babies, but I’ll say it to you anyway: the only thing I can think of that I hate as much as I hate weddings is kitty litter. “But there are good weddings,” I hear you say, “where people plan them really well and they have yummy cake.” And there is good kitty litter, too. But it’s still kitty litter. I spent last Saturday at a good wedding, and I dearly love most of the people who were involved in it. But it was still a wedding.

Partly, my hatred of weddings is probably because I’m a pretty introverted person, and weddings are one of the most forcibly social situations that exist. Actually, they’re the most forcibly social situation I can think of. I’m going to go ahead and relate my hatred of weddings to my general discomfort with family law, though, so that this review serves a purpose other than venting ground for me to talk about people who take all their wedding pictures after the ceremony. I know. Nightmare. But they exist.

Family law is the structure in which the government dictates intimate decisions that citizens make, unrelated to any wrongdoing on the part of the citizen. Any legal dispute in some way involves competing interests and freedoms, right? So, I have the freedom to live in my house; but if I kill someone, I lose the freedom to live in my house. Regardless of the ultimate purpose of losing and gaining freedoms, and not taking into consideration the errors in the system that totally fuck this all up, as far as I can tell the idea of the system is that there is an equal base of freedoms that anyone can lose through an act that a reasonable person would call wrongdoing. Not that everyone starts equal (it’s obviously different to be free to live in a mansion than on the street), but everyone starts out equally free of government involvement. Family law exists in an entirely different, and much more paternalistic, structure. I’m not sure whether I think that’s good or bad, but I do think that’s how it is.

So, here are some of the basics about how the government gets their unpredictable hands on our personal lives:


Note: most of family law is statutory, as opposed to common law. Statutes are created by the legislature, common law is created by courts.

Rights and Responsibilities. Married people are a separate class of citizens, as we all know. Marrieds receive benefits ranging from savings in taxes, insurance, and probate to heightened protection from courts. Very few of the things we expect from marriage are things that the courts will enforce (more on that later), so you really get all these benefits with pretty loosely defined responsibilities in return.

Back in the day, when women couldn’t own anything, marriage made a lot of sense. You’ve got this daughter, who you can’t support for the rest of your life, and her social contribution isn’t recognized economically, so she can’t support herself. So, you contract with another dude who will support her. But, since your daughter’s well-being reflects on you more than the other average slave you’re selling, you throw a big party and turn the sale into a ceremony, instead of the normal signing of documents. So, that makes sense, and at that point it’s just a sale, no real government involvement unless there is clear breach of the contract.

Then, later, we decided that slavery is bad and that people in general should have the ability to own stuff (in the U.S., the Married Women’s Property Acts were passed in the late 1800’s), but the economics of marriage and the emotional/spiritual side of marriage remained really intertwined, as they continue to be today. The only enforceable elements of marriage continue to be property division upon dissolution and annulment for sexual fraud. It is not enforceable, for example, that a partner is “continuing on this journey with you for the right reasons,” like reality TV would have us hope for. Likewise, the vows to “love, honor, and respect” are not enforceable.

Anyway, marriage benefits people in a lot of ways. Public policy is to encourage heterosexual people to marry each other, so the government wines and dines married heterosexuals. But, man, if you get married and have kids and then get divorced, the government is all over you. They can basically tell you what to do from where you live to where your kids go to school. It’s pretty incredible.

States property laws fall into two categories – community property and common law. Community property states presume that both parties own all property acquired after a marriage. In common law states, all acquired property is owned by whoever has the title.

Restrictions on Marriage. Marriage is a fundamental right. I think I talked more about fundamental rights in Constitutional Law. Basically, because it’s a fundamental right, the government can deprive you of it, but only for a really good reason. Also, because it’s a fundamental right, if the legislature tries to take it away from you, the court can step in and give it back. In Loving v. Virginia the Supreme Court said that if you have the right to marry, it doesn’t make any difference if you can’t marry the person you want. As we all know, though, many people can’t marry the person they want. The legislature can’t set unreasonable restrictions on the right to marry, but the rules are more loosey goosey about setting restrictions on who can marry whom.

In order to marry, a person has to be able to have a basic understanding of what marriage is. As in, "yo momma so stupid, yo daddy got an annulment." In Zablocki v. Redhail, though, the Court overturned a law that required court permission to marry if a person was delinquent on child support. So, the Court is really reluctant to allow a rule that prohibits a class of people from marrying.

Every state does have prohibitions on types of marriage, though. Age, incest, and polygamy are the big three. Race is a suspect class, though (meaning that if a law seems to discriminate based on race, the court is extra-suspicious of it), and anti-miscegenation laws are unconstitutional. Sexual orientation is not a suspect class yet. But, let’s talk about the big three before I go into the same-sex marriage stuff.

Age. Commonly, people have to be 18 to get married, but in most states they can get married younger if the parents approve (???!!!). The thing that gets me about that is that it is a crime for someone over 18 to have sex with someone under 18, but it’s totally cool for someone over 18 to make a lifelong commitment to have sex with someone under 18 if the parents say it’s okay.

Incest. You’d think this would be an obvious one, but this one weirds me out, too. The really valid policy reason in favor of an incest restriction is that there are power dynamics within a family that make it unlikely that a romantic relationship within a family would be fully consensual. But, here’s the thing: the statutes make restrictions way beyond the immediate family. For example, adoption and marriage are considered. So, if a single woman adopts a daughter and a single man adopts a son, then the woman and the man marry after the adopted children are fully grown, the adopted children are prohibited from marrying each other. It’s easier to write the statutes the way they’re written, but it’s kind of weird.

Polygamy. (or, "yo momma so fat, yo daddy got arrested for polygamy.") Serial polygamy is completely legal, as we all see every day, but all the states have prohibitions on concurrent polygamy. In State v. Holm, a man married one woman in a civil ceremony, and then married another woman in a private, religious ceremony. He was arrested for polygamy, even though he didn’t attempt to have the state recognize the second marriage. The court held that this was not a violation of the First Amendment, but that is so bogus. Think about it. If a man gets married and then a couple of years later decides to keep a mistress, we may not like it, but he won’t get arrested for bigamy. Here, though, because the couple called themselves husband and wife instead of lovers, it was a crime. That really bothers me.

Same-sex Marriage. Each state treats same-sex relationships differently – marriage, domestic partnerships (which is separate but “equal”), cohabitation, or nothing. Some states adopt a Defense of Marriage Act (DOMA), meaning they won’t recognize same-sex relationships that are recognized in other states. This is a big deal because of the Full Faith and Credit clause in Article IV, Section 1 of the federal Constitution. States are supposed to recognize judicial orders of other states. It’s how we don’t have civil wars all the time. But Congress adopted the DOMA, saying that states don’t have to recognize stuff related to same-sex relationships. This totally sucks for same-sex partners who get married in one state, move to another state, and then want to get divorced – because they can’t.

Formalities. You have to get a license and have a ceremony. This is a statutory thing, so the requirements are different in different states. Some require pre-marital counseling, drug tests, and other handy prerequisites. It’s not required, but usually people pay $22,000 on a wedding, too. So, not mandatory, but recommended.

Contracts. (aka, If you ain’t no punk holla’ we want prenup!) The court pretty much hates marriage agreements, as far as I can tell. I think they’re cool, though. There was this one couple that contracted everything in their marriage, down to who did the laundry and how many times per week they would have sex. It’s totally unenforceable, but the expectations are there up front. I would hate that, but I think it's funny that people do it.

This topic brings up one of the shadiest things about marriage, imao – involving property in marital agreements at all makes it more likely that the party entering the agreement with the most selfless and genuine motivation is the one most likely to get screwed in the end. You fall in love, and the person you’re in love with says they want to marry you and spend the rest of their life with you. But, they’ve been burned in the past, so they want prenup. That seems really reasonable to you because all you care about is how super duper in love you are, not their money. So, you sign the contract saying you don’t get any of their stuff if you get divorced. Then you’re married for twenty years. During that time, you take care of the kids and work only in the home. Then, your truelove wants a divorce. All this time, the person working outside of the home has been amassing a fortune of savings, and the person working in the home has been amassing a big, fat zero. Luckily, the court doesn’t enforce prenups (or mid-marriage agreements) in situations like that where it’s totally unfair.

I think the thing that is the most unpleasant about property being the point of marriage is that ultimately divorce is just this huge government-run garage sale of your relationship. Yuck.

Cohabitation. Now, states pretty much treat this the same as marriage. So, that’s something to watch out for. Almost no states have common-law marriage anymore, but most states recognize cohabitation and divide property gained during the cohabitation the same as they would marital property. It’s probably better to be married with a prenup in a lot of situations than to be cohabitating, because you have more control over who owns what (hypothetically). If you don’t have something written, you can sue to have the court equitably distribute property when you break up. This depends on the property distribution statutes in the states, also.

Best thing about cohabitation is that they call it a “meretricious” relationship. Good word. It comes from the idea that you are a prostitute because you weren’t married and now you want money for the sexual favors you rendered your partner. That might be my favorite thing in family law.


Fault. It used to be that people had to show fault in order to dissolve a marriage. Fault fell under the categories of cruelty, adultery, or desertion. BUT (best part) if both spouses had something they were at fault for, that’s recrimination and no one gets a divorce. Also, another cool thing is that spouses used to set situations up where one would pretend to cheat on the other and get caught so that they would be able to file for a fault-based divorce. If the court caught them, it was collusion or connivance, and no divorce, suckers.

No Fault. Now, every state has no-fault divorce. You just have to show irreconcilable differences. It’s fraud if you try to show irreconcilable differences just to dissolve the marriage for insurance benefits or Social Security, or something, but otherwise the court pretty much lets people get divorced whenever they want.

Property and Support. The presumption is that people get half of the property acquired during the marriage. In Title-Based states (which no one is anymore), they just let people have whatever is in their names. In Pure Equitable Distribution (or “hodge-podge”) states, the court can grab at whatever property it wants to grab so that the property is distributed fairly. In Marital Property states, the court divides only property acquired after the marriage.

The court recognizes that sometimes it takes a while for people to get back in the work force after they’ve been out of it for a long time, so usually spousal support is designed to allow a spouse to live at the standard they lived during the marriage until they can get back on their feet.


Third Parties. Parents have a fundamental right to make decisions about their kids, and the court presumes that fit parents make decisions in the best interests of their children. So, if grandma sues for visitation of the kids, and mom and dad don’t want it, the court sides with mom and dad. I like this rule because it makes me uncomfortable when the court assumes it knows better than parents.

The place where this rule kind of sucks is unmarried fathers:

Unmarried Fathers. These guys are really the worst off of all people in family law. They don’t really have any rights to children.

Important note: if you are an unmarried father and want to have visitation rights with your child, you have to register with the putative-father registry in your state. That makes sure you get notified of any legal proceeding about the child. It might mean you have to pay child support, though, so it’s not for douchebags.

If a woman is married and her husband isn’t impotent, he is presumed to be the father of her children. A child doesn’t have the right to have two fathers, so in that situation if there is a different bio dad, he’s out of luck. He’s not the legal father. This is because marriage, not children, defines family relationships in the U.S.

Adoption. In order for one parent to adopt, the other parent loses all of his or her rights to a child. So, in step-parent adoption, the biological parent has to give up his or her rights to the child before the adoptive step-parent can take those rights over. This is kind of rough when a bio dad hasn’t registered with the putative-father registry, so doesn’t get notice of the adoption proceeding. He doesn’t have any recourse.

Reproductive Technology. Surrogates aren’t considered legal parents of the children they carry, so they don’t have standing in courts. They can’t make any decisions about the babies that are not genetically theirs. Also, sometimes people are surrogates for the genetic children of relatives, so that gives me the heebie jeebies. Like, a daughter being a surrogate for her parents’ new child. It’s like in Arrested Development when Buster says, “Sister is my new mother, mother!” I’ve had that stuck in my head for a month.

Kids and Divorce. A teen mom once said to me, “Giving birth is the best birth control.” That’s not true – birth control is the best birth control. It’s something to keep in mind when thinking about kids because it’s really complicated to calculate child support. I have to remember to take my calculator to the final tomorrow. Personally, I think legal family relationships should be centered on children, not marriage.

Regardless of what I think, the rules after divorce are that parents can get “legal custody” and/or “physical custody.” Once you have kids together, if both parents have some kind of custodial involvement with the kids (even visitation rights), you’re stuck. The court can order you NEVER TO MOVE AWAY!! How much does that suck? There was this lady who wanted to move to Australia, and she couldn’t because her baby daddy wanted to stay in Oregon. What a nightmare! Also, if you can’t agree on something with the kids, the court makes the decision for you. So, use protection, people. Have kids with people who want to live where you want to live.


I took this class with a girl who has dramatic fights with her husband almost daily. They throw things at each other and use other people in my class to make each other jealous. It’s pretty awe-inspiring. So, she was a big study help. If any of us ever didn’t understand a rule from class, she would give us an example from real life. Real American family. So, this review is dedicated to her and the time we spent tonight hypothetically dividing up their marital property.