Family Law in Modern America

Domestic relations law is just another name for family law. Yet, this area of the law extends beyond merely the family. Rather, it deals with the laws governing the familial relationship, which has changed substantially over the years.

The traditional ideal of the “nuclear family,” made up of a married couple raising their 2.2 children, is fading, down from 40 percent of all households in 1970 to less than 25 percent in 2000. Even the U.S. Supreme Court has acknowledged that “demographic changes . . . make it difficult to speak of an average American family.” See Troxel v. Granville, 530 U.S. 57, 64 (2000).

Since this area of law touches on so many substantive subject areas, to be well versed in family law, one must consult various sources to determine the solution to some particularly vexing situations.

Sources of Family Law

Family law emanates from five sources:

1. Each state’s statutory and constitutional law.
2. United States Constitution.
3. Federal law directly addressing family-law matters, ranging from child support enforcement to interstate custody disputes.
4. Tax and welfare laws, both federal and state, which provide or withhold benefits on the basis of marital status, dependency, and family configuration.
5. Regulation, such as zoning laws (e.g., restricting a large proportion of living space to “single-family” uses).

Yet, despite the variety of sources regulating family law subjects, family law remains overwhelmingly in the hands of the states, less because of constitutional barriers to federal intervention than because of longstanding wariness on the part of federal legislators and judges to enter the thicket of family regulation. Given that marriage involves an institution of public interest, states may regulate this type of conduct.

An example of state regulation involves the formalities involved in obtaining a marriage license. Historically, before couples were granted a marriage license, a blood test or other health examination of both parties (to screen for sexually transmitted diseases) was often required as a prerequisite. Today, the number of states requiring blood tests has declined.

Example: Tyler wanted a divorce; however, his wife, Shania, objected on the ground that a divorce would violate her First Amendment right to free exercise of religion. (She was a Hindu and a divorce would bring shame to her family.) The court disagreed. Rather, the court held that a divorce did not violate her right to the free exercise of religion even if it conflicted with her religious beliefs. Specifically, marriage (as a civil institution rather than a religious one) is a personal relationship subject to dissolution on terms fixed by state law. E.g., see, Sharma v. Sharma, 8 Kan. App.2d 726, 667 P.2d 395 (1983).

Other examples of permissible state regulation include:

• reforming divorce law to permit no-fault divorce (See Buchholz v. Buchholz, 197 Neb. 180, 248 N.W.2d 21 (Neb. 1978); Gleason v. Gleason, 308 N.Y.S.2d 347, 256 N.E.2d 513 (N.Y. 1970); and
• outlawing polygamy, despite the religious freedom argument (See Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878); Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985).

The bias against federal involvement is based partly on longstanding custom, but it also reflects a modern judgment that decentralized policymaking is particularly desirable in the realm of family relations. Emphasizing state law allows family law to conform more easily to local conditions and values and “leav[es] the states free to experiment” as productive laboratories of inventive social regulation. See Santosky v. Kramer, 455 U.S. 745, 770 (1982) (Rehnquist, J., dissenting).

Even though marriage is regulated by states, the right to marry is a fundamental right, thereby also enjoying protection by the United States Constitution. Conversely, there is no fundamental right to divorce, which is also regulated by states.

Family Law and the United States Constitution

For many years the United States Constitution was thought to be chiefly relevant to family law as a protector of state prerogative against federal encroachment. Specifically, the Tenth Amendment holds that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This had long been thought to put family law under the exclusive jurisdiction of the states. The traditional view was expressed by the late Justice Hugo Black: “The power to make rules to establish, protect and strengthen family life . . . is committed by the Constitution of the United States . . . to the legislature of that State. Absent a specific constitutional guarantee, it is for that legislature, not the life-tenured judges of this Court, to select from among possible laws.” See Labine v. Vincent, 401 U.S. 532 (1971).

Yet, as early as the 1920s, the Supreme Court began to recognize constitutional protection for “a private realm of family life which the state cannot enter.” See Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Specifically, the Court has referenced various portions of the Constitution to support its positions:

• Due Process or Equal Protection Clauses to the Fourteenth Amendment.
• The First Amendment’s freedom of association.
• The implied right to privacy developed in various seminal cases (see, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

The constitutional guarantee of “family privacy” was first applied to invalidate state laws that restricted the child rearing judgment of parents concerning the education of their children. Through the 1960s and 1970s, however, similar constitutional protection rapidly expanded to other aspects of family life, including marriage (see Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967)), family living arrangements (see Moore v. City of East Cleveland, 431 U.S. 494 (1977)), procreation (see Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)) and the avoidance of procreation through contraception and abortion (see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973)).

Example: Beth, a resident of East Cleveland, OH, was the sole guardian of her two grandsons who were cousins. She wanted to live with them in the family home. Unfortunately, the city of East Cleveland had passed a zoning ordinance which allowed only members of a single “family” to live together. The U.S. Supreme Court struck down this ordinance, stating the government could not pass zoning regulations which impair the ability of family members to reside together, even if the family is an “extended” rather than a “nuclear” family. See Moore v. City of East Cleveland, 431 U.S. 494 (1977).

During the same period, expanding notions of “equal protection” led the Supreme Court to strike down an array of state laws that discriminated on the basis of race, gender and illegitimacy. See, e.g., Loving, 388 U.S. at 12 (striking down a ban on interracial marriage); Orr v. Orr, 440 U.S. 268 (1979) (striking down gender-based alimony law); Levy v. Louisiana, 391 U.S. 68 (1968) (striking down law discriminating against illegitimate children). In combination, the Court’s “privacy” and “equality” rulings have helped to dramatically reshape the traditional landscape of family law. See, e.g., Lawrence v. Texas, 123 S. Ct. 2472 (2003) (striking down a ban on homosexual relations).

This brief overview of the relevant portions of the Constitution that apply to family law cannot possibly cover the topic in sufficient detail. Rather, the constitutional law course provides a more in-depth analysis of numerous constitutional protections.

Women’s Right to Own Property

Another area ripe for state intervention was in the area of women’s property rights—or lack thereof. Acquisition of property either before or during a marriage, and its subsequent distribution upon death or the dissolution of the union, can have a major impact on one’s wealth.

At common law, women were not permitted to retain property in marriage or divorce. Rather, all their assets went to their husbands upon marriage, and on his death passed to his personal representative. See, e.g., Jordan v. Jordan, 52 Me. 320 (1864). Even a woman’s personal property, such as clothing and jewelry, belonged to her husband; however, this sort of property did come back to her upon his demise. See, e.g., Tipping v. Tipping, 1 P.Wms. 730, 24 Eng.Reg. 589 (1721). In addition, a woman also lacked the right to make contracts, either with her husband or with others (see, e.g., Robinson v. Reynolds, 1 Aikens 174 (Vt. 1826)) and to sue or be sued (without joining her husband). See, e.g., Cole v. Shurtleff, 41 Vt. 311 (1868).

To modify this common law position, states enacted the Married Women’s Property Acts which gave married women the right to acquire, own and transfer all kinds of property, to make contracts, to engage in business or be employed and keep her own earnings, and to sue or be sued. See, e.g., Estate of Nickolay, 249 Wis. 571, 25 N.W.2d 451 (1946).

New York passed its landmark Married Women’s Property Act in 1848. See N.Y.-McKinney’s Dom.Rel.L. § 50 (1977) and N.Y.-McKinney’s Gen.Obl.L. §§ 3-301 to 3-315 (1978). Specifically, the Act stated:

An act for the more effectual protection of the property of married women:

§ 1. The real property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the sole disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.

§ 2. The real and personal property, and the rents, issues, and profits thereof, of any female now married, shall not be subject to the disposal of her husband; but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband heretofore contracted.

§ 3. Any married female may take by inheritance, or by gift, grant, devise, or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues, and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.

With these newfound rights, inter alia, women are on more equal footing to protect their interests.