P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 ii This page intentionally left blank P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 RECONCEIVING THE FAMILY This book provides a critical examination of and reflection on the American Law Institute’s Principles of the Law of Family Dissolution: Analysis and Recommenda- tions, arguably the most sweeping proposal for family law reform attempted in the U.S. over the last quarter century. The volume is a collaborative work of individuals from diverse perspectives and disciplines who explore the fundamental questions about the nature of family, parenthood, and child support. The contributors are all recognized authorities on aspects of family law and provide commentary on the principles examined by the ALI – fault, custody, child support, property division, spousal support, and domestic partnerships, utilizing a wide range of analytical tools, including economic theory, constitutional law, social science data, and lin- guistic analysis. This volume also includes the perspectives of U.S. judges and legislators and leading family law scholars in the United Kingdom, Europe, and Australia. Robin Fretwell Wilson is a Professor of Law at the University of Maryland School of Law. She is the co-editor of The Handbook of Children, Culture & Violence and has published articles on the risks of abuse to children in the Cornell Law Review, the Emory Law Journal, the San Diego Law Review, and the Journal of Child and Family Studies.Professor Wilson has testified on the use of social science in legal decision- making in Joint Hearings before the Federal Trade Commission and Department of Justice. A member of the Executive Committee of the Family and Juvenile Law Section of the Association of American Law Schools, Professor Wilson frequently lectures on violence to children, including presentations at Yale University’s Edward Zigler Center for Child Development and Social Policy and the National Society for the Prevention of Cruelty to Children in London, England. i P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 ii P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 Reconceiving the Family Critique on the American Law Institute’s Principles of the Law of Family Dissolution Edited by Robin Fretwell Wilson University of Maryland School of Law iii Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge ,UK First published in print format - ---- - ---- © Robin Fretwell Wilson 2006 2006 Information on this title: www.cambrid g e.or g /9780521861199 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. - --- - --- Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback eBook (EBL) eBook (EBL) hardback P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 In Memory of Our Colleagues, Lee Teitelbaum and David Westfall v P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 vi P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 Contents Acknowledgments page xi Foreword, by Mary Ann Glendon xiii List of Contributors xvii Introduction 1 Robin Fretwell Wilson PART ONE. FAULT 1Beyond Fault and No-Fault in the Reform of Marital Dissolution Law 9 Lynn D. Wardle 2ACity without Duty, Fault, or Shame 28 Scott FitzGibbon PART TWO. CUSTODY 3Partners, Care givers, and the Constitutional Substance of Parenthood 47 David D.Meyer 4Custody Law and the ALI’s Principles:ALittle History, a Little Policy, and Some Very Tentative Judgments 67 Robert J. Levy 5Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents 90 Robin Fretwell Wilson PART THREE. CHILD SUPPORT 6Asymmetric Parenthood 121 Katharine K. Baker 7Paying to Stay Home: On Competing Notions of Fairness and the Imputation of Income 142 Mark Strasser PART FOUR. PROPERTY DIVISION 8 The ALI Property Division Principles: A Model of Radical Paternalism? 163 John DeWitt Gregory vii P1: KAE 0521861195pre CUFX006/Wilson 0 521 86119 5 May 30, 2006 7:35 viii Contents 9Unprincipled Family Dissolution: The ALI’s Recommendations forDivision of Property 176 David Westfall 10 You and Me against the World: Marriage and Divorce from Creditors’ Perspective 195 Marie T.Reilly PART FIVE. SPOUSAL SUPPORT 11 Back to the Future: The Perils and Promise of a Backward-Looking Jurisprudence 209 June Carbone 12 Money as Emotion in the Distribution of Wealth at Divorce 234 Katharine B. Silbaugh 13 Postmodern Marriage as Seen through the Lens of the ALI’s “Compensatory Payments” 249 Katherine Shaw Spaht PART SIX. DOMESTIC PARTNERSHIP 14 Domestic Partnership and Default Rules 269 Margaret F. Brinig 15 Private Ordering under the ALI Principles:AsNatural as Status 284 Martha M. Ertman 16 Marriage Matters: What’s Wrong with the ALI’s Domestic Partnership Proposal 305 Marsha Garrison 17 Domestic Partnerships, Implied Contracts, and Law Reform 331 Elizabeth S. Scott PART SEVEN. AGREEMENTS 18 The Principles and Canada’s “Beyond Conjugality” Report: The Move towards Abolition of State Marriage Laws 351 Jane Adolphe 19 The ALI Principles and Agreements: Seeking a Balance between Status and Contract 372 Brian H. Bix 20 The Principles on Agreements: “Fairness” and International Human Rights Law 392 Barbara Stark PART EIGHT. JUDICIAL AND LEGISLATIVE PERSPECTIVES 21 A Formula for Fool’s Gold: The Illustrative Child Support Formula in Chapter 3 of the ALI’s Principles 409 Maura D.Corrigan [...]... believe that if the “social norm against 13 14 Principles § 4 .10 Principles § 1, Topic 2, at 52 16 Principles § 1, Topic 2, at 53 Principles § 1, Topic 2, at 52 17 Principles § 1, Topic 2, at 53–57 18 Principles § 1, Topic 2, at 53 19 Principles § 1, Topic 2, at 54 20 Principles § 1, Topic 2, at 54 (footnote omitted) 21 Principles § 1, Topic 2, at 56, 58 22 Principles § 1, Topic 2, at 58– 61 (citing Hakkila... child .13 Even those who disagree with the ALI’s proposed reforms, as this volume argues they frequently should, will likely feel obliged to consider them and explain the basis of their disagreement .14 10 Lance Liebman, Director’s Forward, in Principles, at xv W Va Code Ann § 48 -11 -10 6 (LexisNexis 2004) 12 A judicial advisor to the ALI’s work on the Principles purported to adopt the “approximate the time”... entitlement to parental rights vis-` -vis the child.”); E.N.O v L.M.M., 711 a N.E.2d 886, 8 91 (Mass 19 99) (relying in part on Principles in holding that the best interests calculus must include an examination of the child’s relationship with both his legal and de facto parent[s]”), cert denied, 528 U.S 10 05 (19 99); Youmans v Ramos, 711 N.E.2d 16 5, 16 7 n.3 (Mass 19 99) (adopting the ALI’s definition of “de facto... seek court-ordered visitation) 14 For example, although the Maine Supreme Judicial Court recently refused to adopt the Principles’ conception of parenthood, it acknowledged that the Principles will be extremely influential C.E.W v D.E.W., 845 A.2d 11 46, 11 52 & n .13 (Me 2004) (declining to adopt the ALI’s definition of parenthood) 11 4 Robin Fretwell Wilson The questions the ALI tackles are sufficiently... Custody, 80 Cal L Rev 615 (19 92) 9 See Symposium, ALI Principles of the Law of Family Dissolution, 20 01 BYU L Rev 857; Symposium, Gender Issues in Divorce: Commentaries on the American Law Institute’s Principles of the Law of Family Dissolution, 8 Duke J Gender L & Pol’y 1 (20 01) ; Symposium on the American Law Institute’s Principles of the Law of Family Dissolution, 4 J.L & Fam Stud 1 (2002) Introduction... established in 19 23 “to promote the clarification and simplification of the law and its better adaptation to social needs.”4 The ALI has been 1 Section of Family Law, American Bar Ass’n, 10 FAQs About Family Law, http://www.abanet.org /family/ faq.html (last visited Dec 1, 2005); Leslie J Harris, Same-Sex Unions Around the World, Prob & Prop., Sept./Oct 2005, at 31; Lehr v Robertson, 463 U.S 248 (19 83); Leslie... legislators, or others A number of contributors suggest we should place it in the hands of the people who have the most information on the ground, closest to the circumstances: in some instances, the adults who 16 See Lindy Wilmott et al., De Facto Relationships Property Adjustment Law – A National Direction, 17 Austl J Fam L 1 (2003) (describing differences in state rules) 17 Law No 99–944 of Nov 15 , 19 99, Journal... unique relational interest of the other spouse, but they also injure the 9 10 Lynn D Wardle community Legal compensation for such loss appropriately protects and deters further injury to both public and private interests I The ALI’s Faulty Critique of Fault A The Drafters’ Critique of Fault in Chapter 1 of the PRINCIPLES The drafters begin their explanation in Chapter 1, Topic 2, of why marital misconduct... Should Look Instead to the American Law Institute, 11 Int’l J L Pol’y & Fam 216 (19 97); Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault Divorce, 19 97 U Ill L Rev 719 , 772; Ira Mark Ellman, Should The Theory of Alimony Include Nonfinancial Losses and Motivations?, 19 91 BYU L Rev 259, 304 (“One piece of wisdom contained in the no-fault reforms... without which the later event would not have occurred.” Divorce for drunkenness or adultery is no different than divorce because a spouse grows fat or spends too much time at the office – in either case the offended spouse 8 These categories are based on research that was done in 19 96 Principles § 1, Topic 2, at 44–48 10 Principles § 1, Topic 2, at 47 Principles § 1, Topic 2, at 46 11 Principles § 1, Topic . P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9 5 May 30, 2006 7:35 ii This page intentionally left blank P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9 5 May 30, 2006 7:35 RECONCEIVING THE. family law has been, where it is now, and where it ought to be headed. P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9 5 May 30, 2006 7:35 xvi P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9. Colleagues, Lee Teitelbaum and David Westfall v P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9 5 May 30, 2006 7:35 vi P1: KAE 05 218 611 95pre CUFX006/Wilson 0 5 21 8 611 9 5 May 30, 2006 7:35 Contents Acknowledgments