Law Of Family Dissolution Research Articles

You and Me Against the World: Marriage and Divorce from Creditors' Perspective, in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution

The Principles of the Law of Family Dissolution addresses the financial rights and obligations of family participants with respect to each other. But, legal regulation of families affects more than just family participants. It affects relationships with outsiders such as credit card issuers, tort claimants, taxing authorities, and medical care providers. Although the Principles expressly do not address these non-family relationships, the subjects the Principles do address necessarily affect creditors in ways that may be surprising. This chapter shows that family law and creditors' rights are inescapably related. Part I explains how two or more persons can collaborate to shield wealth from their creditors and how creditors can protect themselves from this behavior. Part II explains some of the ways marital and divorce law facilitate wealth-shielding behavior. Part III makes some observations about the Principles' potential effect on the balance between the property rights of adults in marital or cohabiting relationships inter se and the rights of their creditors. To understand the full impact of the Principles, we must consider creditors' perspective. Indeed, only when we take into account how creditors will perceive changes in regulation of marriage and families, can we fully appreciate the social impact of the proposed regulation.

Do Americans Play Football?

The English approach to property and periodical awards in divorce cases, as exemplified by the decision in the McFarlane and Parlour cases, is compared to the American approach, as exemplified by the Principles of the Law of Family Dissolution, adopted in 2000 by the American Law Institute (ALI). It is suggested that these two English cases seem more alike to English courts than they would to American, because the English analysis places little or no emphasis on a factor that American practice generally regards as important - the duration of the parties` relationship. The ALI`s analysis urges a formulaic approach to financial settlement that emphasizes the relationship`s duration, while rejecting financial need as a useful concept upon which to base a decision rule. In contrast, the English decision in these two cases pays little attention to duration while giving attention to need. The American approach is explained and defended. Finally, O`Brien, a well-known American precedent rejected by Mr Justice Thorpe, is discussed. It is argued that difficulties inherent in the O`Brien rule explain not only its widespread rejection by other American courts, but also why the English decision in Parlour and McFarlane is correct in its somewhat reluctant conclusion that different rules should apply to the division at divorce of capital and of income.

ALLOCATING CUSTODIAL RESPONSIBILITIES AT DIVORCE

The American Law Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations contains a set of detailed reform proposals for the allocation of custodial responsibility for children among parents, including the approximation rule. This article examines two bodies of social science evidence that explicitly or implicitly were used to justify the approximation rule, attachment theory and research and research on the impact on children of shared parenting arrangements subsequent to divorce. These two bodies of evidence used to justify the approximation rule are reviewed and evaluated to provide an assessment of its social‐based rationales.

A Marriage and Family Therapy Perspective on Child Custody Issues

The American Legal Institute's Principles of the Law of Family Dissolution (1998) significantly improve the ability of court proceedings to facilitate the resolution of important issues in child custody decisions. However, some limitations in the Principles' ability to do so exist. This paper discusses the advantages and the limitations of the Principles from a marriage and family therapy (MFT) perspective. Recommendations for refining the Principles to overcome the limitations are then discussed. Specific emphasis is given as to how MFTs and other clinical professionals can assist the process without creating an undue reliance on expert witnesses.

Property Settlements as the Cornerstone of Financial Arrangements at Divorce

The financial arrangements provided by the ALI's Principles of the Law of Family Dissolution (Principles) are fundamentally flawed because they attempt to equitably deal with failed marriages rather to encourage potentially successful marriages. The legal arrangements at divorce - both the grounds and the financial settlement - have a far more important effect on the quality of marriages than is commonly recognized. In addition to love and physical attraction, marriages benefit from spouses making decisions based on their family's best interests rather than a narrow concern for their own self interest. Still, economics provides strong evidence that individuals' own self interest has a central role in their decisions. A key, therefore, to a successful marriage is an incentive structure that encourages spouses to recognize that their self interest is best served by addressing the concerns of other family members, especially their spouse. Extending their concern in this way can result in costs to them that will only be rationally incurred if there are corresponding benefits from the other family members. These costs can be emotional as well as financial.