Family Law

Creating Families and Legal Obligations

Entering Marriage

Spousal Rights and Obligations during Marriage

1. Changing Views on the Status of Women, pp. 178-186

o Common law approach to status of women and women in marriage
 Blackstone's approach- based on economic rationale.
o Changing views of married women's social and economic status
 Herma Hill Kay
 Catherine Hill & Elena Silva (2005)
 Women have made gains toward closing the gender pay gap during
the past two decades.
o Constitutional Law
 American constitutional law was slow to shed Blackstone's view of
women's social and economic status. Courts slow to recognize that the EP
clause of the 14th amendment applied to women. Before the 1960s, courts
applied rational basis review for acts that discriminated based on gender. The
rationale behind the reluctance to apply higher scrutiny was the policy of
paternalism that women were "second sex" and had different roles then men in
the home and family
 Current approach to EP claims alleging gender discrimination
 United States v. Virginia (1996): recounts the constitutional change
that began in the early 1970s and talks about the Court's current approach
to equal protection claims alleging gender discrimination
 Heightened the level of scrutiny applicable to gender-based
classifications
 Court held that a policy restricting admission to only men
by a public military academy violated EP.
2. Families and Work, pp. 200-213
o Domestic Roles - allocation of domestic work within the family, balance between
work and family
 Domestic work primarily remains the woman's responsibility
 Debate over whether mother's should work full-time jobs
o Increase presence of women in workforce. Laws have been enacted to facilitate
this transitional
 Family and Medical Leave Act of 1993 (FMLA) - designed to eliminate
discrimination based on family-related issues. Designed to promote a more
 gender-neutral allocation of work and family roles between parents based on a
belief that law affects families by helping change gender expectations within the
home.
 Entitles eligible employees to take up to 12 weeks of unpaid leave
from work for medical reasons related to a spouse, child, or parent. Often
used for maternity or parental leave but can also be used to care for sick
family member.
 Eligibility- defined by whether act includes the employer, covers
all public agencies and both public and private elementary and secondary
schools.
 Limitations of the FMLA- employees are eligible only if they have
already worked for the employer for a full year and only if the employer
employs at least 50 employees within one general worksite. Also leave is
unpaid. Slighlty more than 60% of employees are actually covered by the
FMLA
 Pregnancy Discrimination Act (PDA)
 In 1978 Congress amended Title 7 to add the PDA.
 PDA prohibits employers from treating pregnant employees
differently from non-pregnant employees.
o Balance between family and work - issues men and women face
 The Maternal Wall/childcare
 Stereotypes effect women/men in workplace-
 Studies show that mothers with children or pregnant
women are perceived as being low-competence.
 Benevolent stereotypes- ppl may think they are helping
when in fact they are hurting by stripping decision-making power
away from mother. Also ppl's expectations are often forced onto the
woman (ie mother's do not want new additional work).
 Studies show that fathers who choose to engage in more
family time often experience workplace hostility
 These stereotypes explain why that many employers may be
unable to successfully implement policies intended to help family work
balance, and they tend to enforce traditional gender roles.
 Housework
 Cult of domesticity- traditional belief that women are more suited
for housework and taking care of home than men.
 Bull shit crap
 Elder Care
 Elder care is becoming more of an issue in the workplace, but elder
care benefits are not on the rise. Absent specific employer initiatives,
employees caring for elderly rely upon the FMLA which is an important
vehicle to reduce work-family issues that center on elderly care. However,
FMLA only provides 12 weeks while elderly issues can last much longer.
3. Inter-Spousal Support Obligations During Marriage, pp.231-238
 
 The General Support Obligation
 
o Common law rule
 Husband required to support the wife and had right to her domestic services. Wife
could enforce support obligation by using "necessaries doctrine" to induce third
parties to extend credit to her.
 Husband's rights and obligations-
 Obligation- burden of financially supporting wife
 Rights- right to control his wife and all their marital assets. Once
parties merged, women's separate existence as legal entity is gone
and her personal and economic rights were controlled by husband.
 Limitation on spousal duty of support - family privacy doctrine: The spousal duty
to support was limited by the doctrine of family privacy in cases of intact
marriage. Under this doctrine, the courts followed a policy of non-intervention.
Rationales : 1) desire to preserve martial harmony 2) judicial reluctance to
adjudicate trivial matters 3) adherence to the view that husband is head of
household and should determine family expenditures 4) under common law,
wife could not sue husband
 McGuire v. Mcguire (Nebraska 1953)
 To maintain an action of spousal duty to support, the parties must be
separated or living apart from each other.
 As long as the home is maintained and the parties are living as huband and
wife, it may be said that the husband is legally supporting his wife and the
purpose of the marriage relation is being carried out.
 Necessaries Doctrine - husband has common law duty to provide necessaries to
his wife and children. Designed to protect married women who surrendered
their property to their husbands. Wife is allowed to buy necessities from a third
party using husband's credit.
 What is a necessary- depends on the family's social position and is limited
by husband's ability to pay
 Wife has to be cohabited with her spouse or living apart through no fault
of her own when the sale occurred, and the creditor had to rely on the
husband's, not the wife's, credit
 Current status
 Some courts have abolished the necessaries doctrine
 This is gender neutral doctrine.
 2 modern approaches
 (1) make spouse who incurred debt primarily responsible
for payment of debt for necessaries before seeking
reimbursement from other spouse
 (2) PA requires that where debts are contracted fro
necessaries by either spouse for the support and maintenance of
the family, the creditor can bring suit against both husnad and
wife, and have an execution against that spouse's property, if
no property or not enough than execution can be satisfied out
of separate property of other spouse.
  This makes spouses jointly and severally liable for
each other's debts for necessaries.
o Child support obligations during marriage
 Law has hands-off attitude towards child support during marriage
 When divorced, courts dive in to protect child.
 

Non-marital families : cohabitation

Divorce
Grounds
Annulment
Property Division
Alimony

CHILD SUPPORT / CHILD CUSTODY

Establishing Parenthood
Child Support
Child support: payment by one parent (often the noncustodial parent) to the other parent for the
support of their common child. It is in best interests of child that both parents be obligated to pay
support regardless of financial independence of custodial parent. An order of child support
transfers income from one to other so child can benefit from both.

Child support part of divorce decree or paternity judgement.

1. Determine “income” for child support

2. Establish child support
3. Deviating from guidelines
4. Duration of child support – depends upon state laws. All states require parents to be
financially responsible for child during the child’s minority. A few states extend beyond
minority.
5. Termination –child support can be terminated in the event of the death of the child or
emancipation.
6. Stepparent liability / de-facto parents
 7. modification
College education
In pa- rule

Child Custody

1. establish parenthood
2. determine custody