Family Law

Author:Jeffrey Lehman, Shirelle Phelps

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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.

Historical Background

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

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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 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.

Divorce

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.

Child Custody

During a marriage, all custodial rights are exercised by both parents. These include decisionmaking 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...

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