Preface xxv
Acknowledgments xxvii
PART I
MARRIAGE AND ITS ALTERNATIVES 1
CHAPTER 1
Defining Family 3
June Carbone & Naomi Cahn, Uncoupling 4
Martha Albertson Fineman, Why Marriage? 5
Carol Sanger, A Case for Civil Marriage 5
Cynthia Grant Bowman, Social Science and Legal Policy:
The Case of Heterosexual Cohabitation 7
Braschi v. Stahl Associates Company 8
Notes and Questions 11
Obergefell v. Hodges 12
Notes and Questions 14
City of Ladue v. Horn 16
Notes and Questions 19
Armstrong v. Mayor 21
Notes and Questions 25
CHAPTER 2
The Importance of Being a Family 27
A. Marital Property 28
1. Ownership and Control of Wealth 29
a. The Common Law Tradition 30
Problem 31
Adams v. Jankouskas 31
Notes and Questions 34
Problems 35
b. Community Property 35
Elizabeth R. Carter, The Illusion of Equality: The Failure of the
Community Property Reform to Achieve Management Equality 37
Notes and Questions 38
Problems 39
2. Employment-Related and Public Benefits 40
Boggs v. Boggs 41
Notes and Questions 45
3. Family Support Duties 46
McGuire v. McGuire 46
Mary Anne Case, Enforcing Bargains in an Ongoing Marriage 49
Lee E. Teitelbaum, Family History and Family Law 51
Bruce C. Hafen, The Family as an Entity 52
Notes and Questions 53
Sharpe Furniture, Inc. v. Buckstaff 54
John Kenneth Galbraith, Economics and the Public Purpose 56
Elizabeth R. Carter, The Illusion of Equality: The Failure of the
Community Property Reform to Achieve Management Equality 57
Notes and Questions 59
Problem 60
“Necessaries” and Public and Private Benefits 61
Notes and Questions 62
4. Constitutional Limits on Gender-Based Classifications 62
Problem 62
a. Relevant Statutes 63
b. Empirical Data 63
Naomi Cahn, June Carbone & Nancy Levit, Gender and the
Tournament: Reinventing Antidiscrimination Law in an
Age of Inequality 63
Kevin Miller, The Simple Truth About the Gender Pay Gap 64
c. Constitutional Decisions on Gender Equality 64
B. Domestic Violence 68
Elizabeth Pleck, Domestic Tyranny: The Making of Social Policy
Against Family Violence from Colonial Times to the Present 69
1. Responses by the Criminal Justice System 69
Williams v. State 70
Notes and Questions 72
Problem 73
Note: The Impact of Mandatory Arrest and No-Drop Policies 74
2. Protective Orders 75
J.D. v. M.D.F. 75
Notes and Questions 81
Note: Federal Domestic Violence Legislation 84
C. Reproductive Choice 85
1. Overturning Constitutional Protection for Abortion 85
Dobbs v. Jackson Women’s Health Organization 86
Notes and Questions 92
2. Substantive Due Process Rights after Dobbs 93
Notes and Questions 93
Problem 95
CHAPTER 3
Entering Ceremonial Marriage 97
A. The Agreement to Marry 97
Lutwak v. United States 97
Notes and Questions 100
Note: “Void” and “Voidable” Marriages 101
Problems 102
Note: Marriage-Related Immigration Rules 102
In re Marriage of Ramirez 103
Notes and Questions 106
Problems 108
B. Constitutional Protection for the Right to Marry 109
Loving v. Virginia 109
Notes and Questions 111
Obergefell v. Hodges 113
Notes and Questions 124
Note: Free Exercise Claims Colliding with Same-Sex Couples’ Rights 126
Note: International Legal Recognition of Same-Sex Couples 128
C. Restrictions on Marrying 128
1. Formalities 128
Duncan v. Duncan 128
Notes and Questions 132
Problem 133
2. Mental Capacity 133
In re Marriage of Oakley 133
Notes and Questions 136
3. Relationship 138
Nguyen v. Holder 138
Notes and Questions 140
Problems 143
4. Age 143
Porter v. Dep’t of Health & Human Services 143
Notes and Questions 146
5. One at a Time 147
State v. Holm 148
Notes and Questions 154
Problem 158
D. Interstate Recognition of Marriage 158
Matter of Geraghty 158
Notes and Questions 161
Problems 163
CHAPTER 4
Legal Recognition of Informal Family Partnerships 165
Mary Ann Glendon, Marriage and the State:
The Withering Away of Marriage 165
A. Common Law Marriage, Presumptions About Marriage, and the Putative
Spouse Doctrine 166
1. Common Law Marriage 166
Stone v. Thompson 166
Notes and Questions 171
Problems 173
2. Presumptions About Marriage and Putative Spouses 174
Spearman v. Spearman 174
Notes and Questions 176
Problem 178
B. Unmarried Cohabitants 178
Cynthia Grant Bowman, Social Science and Legal Policy:
The Case of Heterosexual Cohabitation 178
Eleanor Brown, Naomi Cahn & June Carbone, The Price of Exit 179
1. Contractual and Equitable Remedies 181
Marvin v. Marvin 181
Notes and Questions 182
a. Applying Contract Theories 183
Boulds v. Nielsen 184
Notes and Questions 186
b. Applying Equitable Theories 187
Cates v. Swain 187
Notes and Questions 190
Uniform Cohabitants Economic Remedies Act 191
Problems 191
2. Other Legal Statuses for Intimate Partners? 193
Connell v. Francisco 193
Katharine K. Baker, What Is Nonmarriage? 195
Notes and Questions 196
Problems 197
Erez Aloni, Registering Relationships 197
Notes and Questions 198
PART II
FAMILY DISSOLUTION 201
CHAPTER 5
Divorce Grounds and Procedures 203
A. The Traditional Divorce System 204
Kucera v. Kucera 205
Notes and Questions 207
Problems 211
B. The Adoption of No-Fault Divorce 212
Lawrence Friedman, Rights of Passage: Divorce Law in Historical
Perspective 212
1. No-Fault Grounds for Divorce: Irretrievable Breakdown 213
Uniform Marriage and Divorce Act §§302, 305 214
Desrochers v. Desrochers 215
Notes and Questions 216
2. The Coexistence of Fault and No-Fault Grounds 217
Flanagan v. Flanagan 217
Notes and Questions 221
3. No-Fault Divorce Procedure and Collusion 221
Vandervort v. Vandervort 221
Notes and Questions 223
California Family Code Summary Dissolution 224
Notes and Questions 225
Problems 226
C. Divorce Commentary 226
Stéphane Mechoulan, Divorce Laws and the Structure
of the American Family 227
Eleanor Brown, Naomi Cahn & June Carbone, The Price of Exit 228
Notes and Questions 229
CHAPTER 6
Property Division and Spousal Support 231
A. Overview 231
1. Historical Justifications of and Criteria for Economic Awards 231
2. Economic Orders in the No-Fault Era 232
3. Criticism of No-Fault Economics 233
Susan W. Prager, Sharing Principles and the Future
of Marital Property Laws 235
J. Thomas Oldham, Putting Asunder in the 1990s 236
June Carbone & Naomi Cahn, Nonmarriage 236
B. Property Division at Divorce 237
Uniform Marriage and Divorce Act §307 238
Notes and Questions 239
Problem 240
1. The Meaning of “Equitable Distribution” 240
Arneault v. Arneault 241
Notes and Questions 246
Problems 251
2. Characterization of Property as Separate or Marital 252
Siefert v. Siefert 252
Notes and Questions 254
Problem 255
O’Brien v. O’Brien 255
Notes and Questions 260
Note: Challenges to the Classification Regime—Marital
Partnership Theory Revisited 262
Problems 263
3. Property Division and a Cohabitation Remedy? 264
Thieme v. Aucoin-Thieme 265
Notes and Questions 267
4. Choice-of-Law Issues 268
5. Dividing Debts 268
Geldmeier v. Geldmeier 269
Notes and Questions 270
Problem 271
6. The Marital Home 272
C. Spousal Support at Divorce 272
Uniform Marriage and Divorce Act §308 273
Paula England & George Farkas, Households, Employment and Gender 274
Herma Hill Kay, Equality and Difference: A Perspective
on No-Fault Divorce and Its Aftermath 275
Ira Mark Ellman, The Theory of Alimony 275
J. Thomas Oldham, Putting Asunder in the 1990s 276
Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony 276
Twila Perry, Alimony: Race, Privilege, and Dependency in the Search
for Theory 277
In Re Marriage of Pazhoor 278
Notes and Questions 285
Problems 285
3. The Emergence of Alimony Guidelines 286
Zaleski v. Zaleski 286
Notes and Questions 290
4. Fault Revisited 292
5. Spousal Support for the Caregiving Parent? 292
Problem 292
Empirical Data on Working Parents 293
Overview of Governing Legal Principles and Practical Realities 293
The Politics and Social Value of Caregiving 293
D. Divorce and New Property 295
1. Basic Principles 295
Note: Valuing Streams of Payments 296
2. Pensions and Other Employment-Related Benefits 297
Mickey v. Mickey 297
Notes and Questions 303
Note: Dividing Benefits Into Marital and Nonmarital Shares 306
A Comparison: Survivorship Rights and Death Benefits 307
Note: Social Security, Military, and Other Pensions 308
Problems 311
3. Professional Practices and Other Closely Held Businesses 311
McReath v. McReath 312
Notes and Questions 316
Problems 318
4. Degrees, Licenses, Jobs, and Earning Capacity 319
Marriage of Harris and Harris 319
Notes and Questions 323
CHAPTER 7
Parent-Child Support Duties 325
Leslie Harris, Dennis Waldrop & Lori R. Waldrop, Making and
Breaking Connections Between Parents’ Duty to Support and
Right to Control Their Children 325
A. The Current Child Support Model 327
Robert G. Williams, Guidelines for Setting Levels
of Child Support Orders 328
Jane C. Venohr, Child Support Guidelines and Guidelines Reviews:
State Differences and Common Issues 330
Notes and Questions 332
B. Challenges to the Continuity of Expenditures Model 333
Leslie Joan Harris, The Proposed ALI Child Support Principles 334
Jo Michell Beld & Len Biernat, Federal Intent for State
Child Support Guidelines: Income Shares, Cost Shares,
and the Realities of Shared Parenting 336
Notes and Questions 337
C. Applying Child Support Formulas 339
Tuckman v. Tuckman 339
Notes and Questions 342
Problems 344
In re Marriage of Turk 345
Notes and Questions 348
Note: Child Support Obligations of Low-Income Parents 348
D. Post-Majority Child Support 349
Leslie Harris, Dennis Waldrop & Lori R. Waldrop, Making and
Breaking Connections Between Parents’ Duty to Support and
Right to Control Their Children 349
McLeod v. Starnes 350
Ruth N. Lopez Turley & Matthew Desmond, Contributions to
College Costs by Married, Divorced, and Remarried Parents 353
Notes and Questions 354
Problems 356
E. Adult Children’s Legal Obligation to Support Parents 357
American Healthcare Center v. Randall 357
Swoap v. Superior Court 359
Notes and Questions 360
CHAPTER 8
Modification, Termination, Enforcement, and Tax
and Bankruptcy Treatment of Orders 363
A. Modification and Termination of Support 363
1. “Foreseeable” Changes in Circumstances 364
2. “Voluntary” versus “Involuntary” Decreases in the Payor’s Income 365
Sharpe v. Sharpe 365
Notes and Questions 369
Problems 371
3. New Families—Spousal Support, Remarriage, and Cohabitation 372
Peterson v. Peterson 372
Notes and Questions 374
Problems 376
In the Matter of Raybeck 376
Notes and Questions 379
Problem 380
4. New Families—Child Support 381
Harte v. Hand 381
Notes and Questions 383
Problems 385
B. Enforcement 385
Timothy Grall, Custodial Mothers and Fathers and Their Child
Support: 2017 385
1. Private Enforcement Mechanisms—Liens, Trusts, and Insurance 387
2. Jailing “Deadbeat” Parents 388
Turner v. Rogers 388
Notes and Questions 392
Note: Civil or Criminal Contempt? 395
Problem 396
3. The State-Federal Child Support Enforcement Program 397
4. The Continuing Challenge of Childhood Poverty 398
Timothy Grall, Custodial Mothers and Fathers and Their Child
Support: 2017 398
Leslie Joan Harris, Questioning Child Support Enforcement Policy
for Poor Families 399
C. Taxes 400
1. Taxation of the Ongoing Family 401
2. Taxation of the Family After Divorce 402
a. Property Division—IRC §1041 403
b. Spousal Support—Former IRC §§71 and 215 403
c. Child Support, Child Tax Credits, Child Care Credits, Earned
Income Credits, and Children’s Medical Expenses 404
D. Bankruptcy 405
In re Chamberlain 406
Notes and Questions 408
CHAPTER 9
Child Custody 411
A. Introduction 411
Michael Grossberg, Governing the Heart