17 minute read

Family Law

Further Readings

The family is one of the most common and oldest human social institutions. Itis believed to originate from the child's need for care and the mother's ability to nurse. Family in Western society derived from ancient traditions, such as the Hebrews of the Middle East, where the father was considered the mostpowerful member. In the United States, family normally refers to a group ofkin-related individuals sharing a home. On average, traditional families in America consist of a husband, wife, and one or two children. There is a general conception of families as entities separate from society, in which issues are solved internally. But families and society are integrally intertwined. Consequently, family law evolved as a means to maintain order in society. Family law is a general term traditionally addressing marriage, divorce, domesticdisputes, and paternity. It developed from common law and is handled primarily at the state level. The courts and state legislatures have acted throughouttime to preserve the institution of marriage due to its moral influence on the population. Though the First Amendment has been interpreted as significantly limiting the extent to which the state can interfere with parents over howthey raise their children, certain exceptions are recognized when the healthand safety of children are jeopardized.
Origins of Family Law
In Western society, the family has historically served as the key means for passing ownership of land and other wealth down through generations. During the Middle Ages of Europe, inheritance was of primary importance in families, given the uncertainties of life. Formal rules of inheritance provided for family continuity. The rise of feudal lords increased regulation of marriage, such as determining how land could be disposed by widows. The Magna Carta of 1215 addressed various aspects of inheritance. It provided greater protection towidows and children, including the forced sale of inheritance to pay debts.The Magna Carta underscored the crucial connection between early property lawand the central place of the family in medieval society. This relationship formed the basis for English common law.
Colonists in America, influenced by Puritan and Protestant beliefs, adopted principles from English law. They believed that the well-being of the commonwealth largely depended on the proper discharge of family responsibilities. Protestants viewed marriage as a contract rather than a sacrament, while Puritans stressed the responsibilities of family members. During the colonial period, fathers held sole legal authority over children of the family. State governments replaced colonial governments after independence from Britain and retained primary governmental powers to regulate family matters. With the progression of the Industrial Revolution into the nineteenth century, husbands increasingly worked away from the home and wives assumed greater responsibilities for raising children. This shift in roles of family members greatly influenceddevelopment of family law over the next century. For example, the "tender years" doctrine was adopted, routinely awarding mothers custody of their children in a divorce. By the mid-twentieth century, an emphasis on individual rights and privacy grew in family law including greater freedom to dissolve marriages. In a prisoner sterilization case, Skinner v. Oklahoma (1942), the Court expanded equal protection of the law by declaring marriage and procreation fundamental rights. Griswold v. Connecticut (1965), the first Court ruling to address privacy rights, upheld a couple's right to use birth control.
Marriage and Divorce
Marriage resides at the intersection of public and private life. Though the home is protected by rights to privacy, marriage is a public legal institutionfilled with privileges and obligations integrated into the community at large. Vows are declared publicly and the community becomes a stakeholder in therelationship. 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 themarital 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 mostcommon grounds being adultery, cruelty, desertion, and impotence. In the traditional fault-based system of divorce, if one of the grounds was present in amarriage, 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 bornin 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 reasonfor 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 hearingbefore a no-fault divorce could be granted. A hearing on fault in a marriagedispute 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 tonational efforts to maintain the traditional definition of family in federallaw, states in the late 1990s began to individually consider proposals recognizing same-sex marriages. Hawaii led the way in adopting such measures. Manybelieved the nature of marital relations was a private matter that governmentshould not dictate.
When couples have children, those children become stakeholders in the marriage. By the mid-twentieth century, most states assigned both parents equal responsibility for the support and care of their children. When a parent fails toprovide adequate food, clothing, medical care, education, supervision, or general guidance, the parent may be found guilty of neglect and local welfare departments can conduct investigations. In neglect cases that persist, children can be placed for adoption. The Uniform Marriage and Divorce Act was passedby Congress in 1970. It provided extensive standards governing marriage, divorce, property, alimony, child support, and custody. In 1989, the United Nations Convention on the Rights of the Child was adopted by the U.N. General Assembly which promoted children's legal rights as individuals. Issues focused on nutrition, health care, and other forms of protection. Numerous organizations sponsoring children's rights were established.
Collecting child support payments from an ex-spouse has long been a major issue in family law. Congress passed the Uniform Reciprocal Enforcement of Support Act to assist parents in collecting unpaid child support from ex-spouses residing in other states. The act proved ineffective due to high work loads and a low priority by local authorities. The ability of divorced parents to collect child support payments from unwilling (deadbeat) ex-spouses greatly increased in the 1990s. The Association for Children Enforcement of Support was formed to help find ex-spouses. Also, the Welfare Reform Act, which passed in1996 and turned the major federal welfare program over to states, included provisions for a national deadbeat tracking system and required employers to report new hires to the state. Laws expanded to allow wages to be garnished, professional and drivers licenses revoked, retirement and welfare benefits withheld, and tax refunds and even lottery winnings redirected. In addition, liens could be placed on real estate and personal property, and bank accounts.
Children can also terminate legal ties to parental control through a declaration of "emancipation." They may then enter into contracts and purchase assets. Emancipation is normally considered automatic when serving on active duty in the military or holding a job and living apart from the family home.
Property in the Family
Historically, common law regarded a married couple as a legal entity with thehusband as the head of the household. He controlled all marital property, including property brought into marriage by the wife. If the wife outlived thehusband, she could recapture her rights over the property she brought into the marriage. During the 1970s, the United States Supreme Court struck down many gender-based laws, holding that the laws violated the Equal Protection Clause of the Fourteenth Amendment. For example, in Reed v. Reed (1971) the Supreme Court struck down a state law that preferred men over women as administrators for descendants' estates. Now husbands and wives can manage theirown property.
Some states adhere to the English common law "title theory" of property whichattaches ownership of an asset during marriage to the spouse who holds the title. Title to a marital asset is held by the spouse who earned the funds topurchase the asset, unless title was shifted by gift, contract, or a court order. The owner of the property can manage, control, and dispose of the property without the consent of, or even giving notice to, the other spouse. If thepurchaser of the asset includes the other spouse on the title, it is presumed the spouse intended to present the other spouse with a gift unless evidencedemonstrates otherwise.
Other states are known as community property states. This property system, created in Spain and France, is based on a sharing or partnership theory of marriage. It presumes each spouse, whether directly or indirectly, contributes equally to the accumulation of assets during the marriage. The homemaker provides intangible contributions to the marital relationship, and property acquired through the efforts of either spouse is regarded as marital property ownedequally between the two. Spouses can also hold separate property including assets acquired through gifts or inheritance prior to marriage.
In a common law property system, traditionally the wife would have nothing toleave at death since the husband already controlled all of the property. However, a husband could choose to leave his estate to someone other than the widow, thus leaving the widow destitute. To prevent this unfairness, over the years states devised methods of granting surviving spouses some rights to marital property. The most common form still implemented today is the "statutoryelective share." This method entitles a surviving spouse to a legally prescribed portion, typically one-third to one-half, of the deceased spouse's property owned at the time of death.
In community property jurisdictions, the deceased spouse may dispose of his or her one-half of the estate through a will along with any separate property.The surviving spouse has no right to survivorship in this system unless theproperty was left to him or her in the will.
By the late 1990s, division of pensions became a major divorce asset issue and the subject of proposed state legislation. State laws and the Retirement Equity Act of 1984 traditionally allowed spouses to obtain rights to the other's pension benefits if divorced. Increasing use of 401(K) pension plans meantthat pension funds might be the largest asset of a family besides a home. However, due to the flexibility of such plans which made them attractive, protection of spousal financial interests following divorce were lessened in valuing and dividing the pension benefits. Proposed restrictions for withdrawal offunds were opposed by the pension industry for fear of increased liability and the greater record keeping demands a new system might pose. Inclusion of pension benefit clauses became an increasingly important part of the court order approving a property settlement agreement.
Duties and Rights of Spouses
Under common law, the husband had a duty to support his wife, while the wifehad a duty to perform household chores and other services for the husband. Generally, courts, as in McGuire v. McGuire (1953), were unwilling to set a specific standard of support to be provided by the husband while the family remained intact. Family living standards were considered a matter of concern for the family, and the courts found no grounds to interfere with such marital matters for the most part. However, courts have the option of intervening by applying the "doctrine of necessities." Under this doctrine, a husband or wife could be held responsible for the purchase of essential goods or services, including food, clothing, shelter, and medical and legal expenses. Similarly, a spouse could be held liable for the other spouse's debts and contracts regardless of her or his consent or knowledge of the purchases.
All states today require husbands to provide necessities for their wives andchildren, and in many states wives face similar requirements. Debts incurredduring marriage, especially for necessities, are normally considered joint debts, even if spouses are living apart but are not divorced. Creditors may therefore sue either spouse to recover such debts. In many states, debts incurred before marriage by one spouse do not become the responsibility of the otherspouse. However, marital property may be claimed by creditors if the original debtor cannot pay pre-marriage debts. After divorce, debt is allocated to each ex-spouse in accordance with the state's property laws. Debts are often divided equally, especially when associated with providing necessities. Creditors can sue either ex-spouse regardless of the split.
An individual also holds the right to file personal injury and wrongful deathlawsuits on behalf of a spouse or child. Under common law principles, a spouse has the right to receive compensation from the wrongdoer for the love, affection, care, services, companionship, and sexual relations that she or he, as the surviving spouse, is now denied. These aspects of marital relations arecollectively known as "consortium" and any person who willfully interferes with this relation is liable for damages. In order to recover such compensation, most courts require proof that the wrongdoer intentionally or negligentlyharmed the spouse or the child and caused physical injury or death. Loss of consortium is limited to married couples. Unmarried cohabitants may not receive any compensation for such a loss. In wrongful death cases, the surviving spouse and children of the deceased generally also qualify for compensation from the wrongdoer for the amount of future income which would have been provided by the deceased or incapacitated spouse. Regarding misdeeds of a child, parents are not liable under common law for a child's wrongful activities unlessthe actions were somehow supported by a parent. However, by the 1970s, states began making parents liable in civil suits for damages caused by their children.
Criminal Law
Criminal law involving family issues includes spousal rape, assault, and child abuse and molestation. Most states prohibit prosecution of a husband for the rape of his wife while still living together, although this prohibition isincreasingly being challenged. This prohibition stems from the common law concept that once a woman married, she granted consent to intercourse with her husband that cannot be rescinded, and rape was traditionally defined as the unlawful "carnal knowledge" without consent. In Smith v. State (1981) and Commonwealth v. Chretien (1981) the courts held that a wife could rescind marital consent once she lived apart from her husband. By the mid-1990s, 11 states allowed for prosecution of husbands who rape their wife while living apart.
Assault includes domestic violence, such as when spouse physically attacks the other. Spouses may obtain temporary restraining orders barring the abuser from the home and prohibiting further violent acts. The assault or violation of an order can result in criminal prosecution. Local authorities were historically reluctant to become involved in domestic disputes, but this has changedduring the 1990s with the rising incidence of abuse and increased public awareness.
When a parent without custody removes a child from the custodial parent, he or she may be found guilty of felony kidnapping as addressed in the Parental Kidnapping Prevention Act of 1980. A court upheld the precedence of the law essentially protecting parental rights over other standards protecting children's rights in In re Baby Girl Clausen (1993).
Child abuse escalated throughout the 1990s. Estimates are that 1.5 million children suffered from moderate to severe child abuse each year during this period. Abuse included physical, sexual, and emotional mistreatment, and extremecases of neglect. Almost 80 percent of the abuse was committed by the parents. Although it is a devastating crime, abuse appeared to be immune from legalprevention and protection. Several states passed laws requiring persons to report suspected child abuse. In some cases, the abused child is removed fromthe home and placed in care of the state. Financial costs for institutional care correspondingly increased throughout the decade. With poverty identifiedas a key factor, reformers sought to assure the economic well-being of families. Child abuse reporting laws and monitoring by juvenile courts and social workers proved to be the primary preventative measures available. Abuse is normally an important factor in custody hearings. Incest, which is marriage or sexual relations between close relatives including stepparents, also constitutes a crime, and it is regarded as child abuse when it occurs between a parentand child.
Family Law Reform
As divorce rates and the incidence of illegitimate children escalated, a strong call was made in the 1990s for family law reform. The Clinton administration pushed through the Family and Medical Leave Act of 1993 to encourage greater responsiveness of family members to family needs. The Violence Against Women Act, passed the following year, addressed domestic violence. As the twentieth century came to a close, the perceived "collapse" of the institution of marriage raised fundamental issues. Many believed family law should establishsociety's expectations about the commitments of family members and more clearly define the boundaries of family. Increased regulation of family life was demanded with increased moral commitments imposed. Proposals were made to increasingly treat the family as a legal entity, rather than just a collection ofindividuals, subject to social responsibilities. Some claimed that family law became inappropriately "constitutionalized." Individual rights in the Billof Rights, designed to protect individual liberties from government action, were over expanded to interpersonal disputes.
In 1996, the Commission on Child and Family Welfare submitted a report to Congress entitled, "Parenting Our Children: In the Best Interest of the Nation."The commission found that over one-fourth of children in the United States lived with only one parent and often lacked adequate nurturing and financial support. The report focused on getting both divorced parents actively involvedin their children's lives. The commission emphasized that parents' primary concern, regardless of marital status, should be for the well-being of their children. The report identified ways in which courts could reduce the adversarial nature of custody hearings, including mandatory mediation to resolve disputes and development of parenting plans. It also found that courts with family law jurisdiction frequently had the least resources as well as lower legalstatus than other courts.
The Uniform Parentage Act, adopted by many states, established court procedures and standards for determining paternity of children when paternity is contested. However, the image of the family is radically changing in several waysat the conclusion of the twentieth century. Consequently, family law is being challenged to regulate unprecedented situations. No longer are cases strictly between family members. With artificial reproduction methods, questions arise concerning who the "real" parents are. For instance, does a surrogate mother with no biological relationship to the child she gives birth to have rights to him or her? What are the rights and responsibilities of an ex-husband when his ex-wife wishes to implant the frozen eggs that he fertilized during their marriage? The question arises as to whether these relationships should be addressed through contract and property law as the court resorted to in Kass v. Kass (1998). Family law was clearly entering uncharted territoryas the twenty-first century approached.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Ex proprio motu (ex mero motu) to File