- Date 07 Mar 2020
ABOUT THIS PROJECT
Family law Statutes, court decisions, and provisions of the federal and state constitutions that relate to family relationships, rights, duties, and finances.
The law relating to family disputes and obligations has grown dramatically since the 1970s, as legislators and judges have reexamined and redefined legal relationships surrounding Divorce, Child Custody, and Child Support. Family law has become entwined with national debates over the structure of the family, gender bias, and morality. Despite many changes made by state and federal legislators, family law remains a contentious area of U.S. law, generating strong emotions from those who have had to enter the legal process.
Most of the changes made in family law in the late twentieth century have been based on overturning concepts of marriage, family, and gender that go back to European Feudalism, canon (church) law, and custom. During Anglo-Saxon times in England, marriage and divorce were private matters. Following the Norman conquest in 1066, however, the legal status of a married woman was fixed by Common Law, and Canon Law prescribed various rights and duties. The result was that the identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, the husband received all the wife’s Personal Property and managed all the property owned by her. In return, the husband was obliged to support the wife and their children.
This legal definition of marriage continued in the United States until the middle of the nineteenth century when states enacted married women’s property acts. These acts conferred legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during the marriage, thus forcing the wife to rely on his bounty.
Divorce law has also changed over time. In colonial America, divorce was extremely rare. This was partly because obtaining a divorce decree required legislative action, a process that was time-consuming and costly. Massachusetts in 1780 was the first state to allow judicial divorce. By 1900, every state except South Carolina provided for judicial divorce.
Even with availability, divorce remained a highly conflicted area of law. The Catholic Church labeled divorce a sin, and Protestant denominations saw it as a mark of moral degeneration. The adversarial process presented another roadblock to divorce. In the nineteenth century, consensual divorce was not known. For a couple to obtain a divorce, one party to the marriage had to prove that the other had committed a wrong of such weight that the marriage must be ended. The need to find fault was a legacy of family law that was not changed until the 1970s.
Finally, the issue of divorce raised the topic of child custody. Traditionally, fathers retained custody of their children. This tradition weakened in the nineteenth century, as judges fashioned two doctrines governing child custody. The “best-interests-of-the-child” doctrine balanced a new right of the mother to custody of the child against the assessment of the needs of the child. The “tender years” doctrine arose after the Civil War, giving mothers a presumptive right to their young children.
Beginning in the 1960s, advocates of divorce reform called for the legal recognition of no-fault divorce. Under this concept, a divorce may be granted on grounds such as incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The court examines the condition of the marriage rather than the question of whether either party is at fault. This type of proceeding eliminates the need for one party to accuse the other of a traditional ground for divorce, such as Adultery, cruelty, alcoholism, or drug addiction.
By 1987, all fifty states had adopted no-fault divorce, exclusively or as an option to traditional fault-grounded divorce. No-fault divorce has become a quick and inexpensive means of ending a marriage, especially when a couple has no children and moderate property assets. In fact, the ability to end a marriage using no-fault procedures has led to criticism that divorce has become too easy to obtain, allowing couples to abandon a marriage at the first sign of marital discord.
The division of marital property has also undergone significant change since the 1970s. Courts now consider the monetary and non-monetary contributions of a spouse as a homemaker, parent, and helper in advancing the career or career potential of the other party— as, for example, when one spouse works so that the other may go to school. In distributing marital assets and setting Alimony and maintenance, the homemaker’s contributions are significant factors, although there is disagreement as to their valuation. On the other hand, courts no longer look at alimony as a long-term remedy. Alimony is now often awarded for a fixed term, so as to enable a divorced spouse to acquire education or training before entering the workforce.
During a marriage, all custodial rights are exercised by both parents. These include decision making power over all aspects of upbringing, religion, and education, as long as the parental decisions and conduct stay clear of the neglect, abuse, and dependency laws. Upon divorce, that power traditionally went solely to one parent who obtained custody. Traditionally, the Visitation Rights given to the noncustodial parent constituted little more than a possessory interest. This made the custody decision upon divorce a significant one: the relationship between the noncustodial parent and her or his children would change, as the parent would lose the ability to shape decisions affecting the children.
In the United States, since the nineteenth century, mothers traditionally gained custody of children. In the late twentieth century, changes in marital and social roles have led to fathers assuming duties once thought to be the exclusive province of mothers. This, in turn, has led to fathers showing more interest in claiming custody and to courts granting fathers custody. Yet the vast majority of custody dispositions still go to the mother.
From a dissatisfaction with custody, decisions have emerged the concept of joint custody. Under joint custody, legal custody (the decision-making power over the child’s conduct of life) remains with both parents, and physical custody goes to one or the other or is shared. The concept has met with mixed reactions. If both parents are reasonable, both may be able to participate fully in decisions that would have been denied one of them. On the other hand, joint custody is likely to be harmful if the parents play out any lingering animosity, or confuse the child with conflicting directions, or are simply unwilling to agree on basic issues involving the child’s welfare.
Beginning in 1980, the laws governing custody disputes have been guided by federal statutes. A 1980 amendment to the judiciary act (28 U.S.C.A. § 1738A) authorized federal rules that control the enforcement and modification of custody decrees. When in conflict, these rules supersede state statutes, including the Uniform Child Custody Jurisdiction Act (UCCJA), which all states have enacted in some version. The UCCJA was created to deal with interstate custody disputes. Before it was passed, a divorced parent who was unhappy with one state’s custody decision could sometimes obtain a more favorable ruling from another state. This led to divorced parents’ Kidnapping their children and moving to another state in order to petition for custody.
In most cases, a divorce decree will require the noncustodial parent, usually the father, to pay child support. The failure of parents to pay child support has significant consequences. Lack of support may force the custodial parent to apply for welfare, which in turn affects government budgets and ultimately taxes. This problem has resulted in increasingly more aggressive collection efforts by the government.
The Uniform Reciprocal Enforcement of Support Act (URESA) exists in all states in some form. URESA allows an individual who is due to alimony or child support from someone who lives in a different state to bring an action for receipt of the payments in the home state. This measure circumvents such problems as expense and inconvenience inherent in traveling from one state to another in pursuit of support.
In response to federal legislation that mandates a more aggressive approach, states have become more creative in extracting money from those who fail to pay child support—who, because they are usually fathers, have come to be labeled deadbeat dads. In 1975, Congress enacted a provision that created the Office of Child Support Enforcement in the department of health and human services (42 U.S.C.A. § 651). The office was charged with developing ways of collecting child support. In 1984, the law was amended to strengthen enforcement powers. State laws now must require employers to withhold child support from the paychecks of parents who are delinquent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens against the property of those who owe support. Unpaid support must be deducted from federal and state Income Tax refunds. Expedited hearings are required in support cases.
Family law has grown beyond the boundaries of marriage, divorce, and child custody and support. New areas of law have been created that deal with the legal rights of persons who have not been legally married.
Palimony The colloquial term palimony entered the U.S. lexicon in 1976, with the lawsuit Marvin v. Marvin, 18 Cal.3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (Cal.). The term refers to alimony paid out of a non-marital union. In Marvin, the California Supreme Court ruled that although public policy is to encourage and foster the institution of marriage, equitable distribution of property accumulated during a non-marital relationship is not precluded. In this case, Michelle Triola Marvin, who had cohabited with film actor Lee Marvin for seven years without a formal marriage, brought an action to enforce an oral contract under which she was entitled to half the property accumulated during the seven-year period, along with support payments. Though the facts of the case ultimately led to Michelle Marvin’s not recovering any palimony, the case established the right of a cohabitant to obtain a Property Settlement.
Family law has been governed by the adversarial process. This process is geared to produce a winner and a loser. In divorce and child custody cases, the process has increased tensions between the parties, tensions that do not go away after the court process is completed.
States have begun to explore non-adversarial alternatives, including family mediation. Court systems are also experimenting with more informal procedures for handling family law cases, in hopes of diffusing the emotions of the parties.