Family Law

Marriage resides at the intersection of public and private life. Though the home is protected by rights to privacy, marriage is a public legal institution filled with privileges and obligations integrated into the community at large. Vows are declared publicly and the community becomes a stakeholder in the relationship. Consequently, states consider marriage a contractual relationship subject to state regulation in order to protect the general welfare of their citizens. States independently establish the minimum age at which individuals may marry, marriage procedures, the duties and obligations created by the marital relationship, the effect of marriage on property, and grounds for divorce.

Originally under English common law, one spouse could not sue the other. By the late nineteenth century, the Married Women's Property Act allowed wives, and later husbands, to sue for property losses. Cases dealing with personal issues, not property, have been allowed only to a limited extent, such as injury due to vehicle negligence, domestic violence, or sexually transmitted disease. Fewer restrictions apply to suits between children and parents. A child can sue parents for breach of contract, property loss, and even personal injury under certain circumstances. States have established varying levels of protection for parents against lawsuits. Some states invoked a "reasonable parent" standard which focuses on parents' exercise of discretion and authority except when parental action is outrageous. In 1993, a Florida teenager successfully sued for "divorce" from a parent by claiming lack of adequate support.

Divorce between spouses not only alters their legal status, but also introduces issues concerning division of property, continued support of dependent children, and child custody concerns. Through the regulation of grounds for divorce and its procedures, each state has designated specific courts to deliberate divorce proceedings.

Originally, grounds for divorce were few and narrowly defined, with the most common grounds being adultery, cruelty, desertion, and impotence. In the traditional fault-based system of divorce, if one of the grounds was present in a marriage, then an individual could proceed with a divorce suit against the spouse at fault. Often the finding of fault greatly influenced the amount of alimony paid afterwards. However, in the mid-1960s, no-fault divorce was born in California and led to a "divorce revolution." Soon, all states adopted some form of no-fault divorce in which the spouses, together, could cite incompatibility, irreconcilable differences, or some length of separation as reason for divorce. The court could then grant the divorce. Many states retained both forms of divorce.

By the late 1990s, divorce reforms began to spread through the states again as the no-fault system was blamed for a substantial increase in divorce and inadequate protection of the financial security of spouses and children. Reformers claimed that although marriage is more than a legal business partnership, the no-fault system treated it as less with few legally binding commitments. Some believed a spouse should at least have the right of a judicial hearing before a no-fault divorce could be granted. A hearing on fault in a marriage dispute could actually serve to deter some divorces. In essence, an effort has begun to reform the structure of legal incentives under which marital relationships operate and to make divorce expensive for those at fault.

Several states recognize common law marriage after a couple lives together for a certain length of time, and the couple demonstrates that they either intend to marry or are representing themselves to others as married. Until the late 1990s, all states restricted marriage to the union of a man and woman. Same-sex couples could not enjoy the legal benefits of marriage. In contrast to national efforts to maintain the traditional definition of family in federal law, states in the late 1990s began to individually consider proposals recognizing same-sex marriages. Hawaii led the way in adopting such measures. Many believed the nature of marital relations was a private matter that government should not dictate.