IMMEDIATE
Michael Greenwald
800-CLE NEWS, ext.1626
(Philadelphia) – The American Law Institute (ALI) has published its first comprehensive work in the field of family law: Principles of the Law of Family Dissolution: Analysis and Recommendations. With this innovative and groundbreaking new volume, the Institute completes more than a decade of work on the legal consequences of family dissolution, including those involving domestic partners. These Principles cover such vital issues as the allocation of custodial and decisionmaking responsibilities for children, child support, distribution of marital property, compensatory payments to former spouses, and the legal effect of agreements between the parties.
Responsive to the enormous changes in society that have taken place over a half century during which divorce rates climbed and the traditional roles of men and women were challenged, this innovative volume moves beyond the traditional formulations that were often framed in such general terms as to give nearly unbounded discretion to the decisionmakers charged with implementing them. The Principles provide family law with the conceptual clarification and improved adaptation to social needs that has long been the ALI’s hallmark. It makes a major contribution to the better administration of justice in an area too often marked by inequity.
The work is described as "Principles" rather than "Restatement" because "Principles" is the better designation for a project that carefully explores and clarifies the fundamental assumptions—about the best interests of children, fairness to divorcing wives and husbands, and the legitimate economic claims of unmarried partners—upon which the legal rules must rest. Many of these Principles, nevertheless, restate and clarify present law, while others recommend directions for implementation by courts, legislatures, and other appropriate decisionmakers. The result is a coherent legal framework, sensitive to both the traditional value systems within which most families are formed and the nontraditional realities and expectations of other families, a framework the earlier drafts of which have already begun to influence both courts and legislatures.
Different portions of these Principles are intended for different primary audiences and the formulations vary accordingly. Some provisions function as traditional Restatement rules and are addressed to courts in their capacity as decisionmakers in individual cases. Other sections are addressed mainly to rulemakers rather than to decisionmakers. In these cases, the black letter typically articulates the provision’s aim and structure, as well as the considerations appropriate to its formulation, but specific details of its implementation are left to be fleshed out by the appropriate rulemakers in particular jurisdictions. The commentary amplifies the black letter’s guidance by examining the range of possibilities consistent with the rationale of the particular principle and is illuminated throughout by numerous practical Illustrations. Extensive Reporter’s Notes set forth the legal and scholarly sources drawn upon for each section and furnish the background for additional research. The work is further enhanced by comprehensive Tables of Cases and Statutes and by an Index.
Family law is largely state law, and no state’s law is precisely that of these Principles. But nearly everything in the Principles can be found in the current law of some states, as well as in that of other countries with a common-law tradition. In seeking to accommodate both important traditional values and the reality of modern conditions, the Institute has borrowed profitably from both domestic and foreign experience.
Professor Ira Mark Ellman of Arizona State University College of Law served as Chief Reporter for the ALI’s Principles of the Law of Family Dissolution: Analysis and Recommendations. The other Reporters were Dean Katharine T. Bartlett of Duke University School of Law and Professor Grace Ganz Blumberg of the University of California at Los Angeles School of Law. All three were honored by the Institute with the special designation of R. Ammi Cutter Reporter because of the excellence of their work on this project.
In addition to obtaining the close review of a diverse group of Advisers expert in the field and of the ALI’s Members Consultative Group for this project, the Reporters benefited from having the views of a Judges Consultative Group, which included many jurists who work on family-law cases every day.
Description of Contents
Topic 1 of Chapter 1 presents an overview of the issues addressed in the remaining Chapters, of the nature of the challenge presented by the subject matter of each Chapter, and of the approach taken to meet that challenge. Topic 2 considers whether the parties’ marital conduct should be weighed in the allocation of their property or the determination of compensatory-payment awards, and provides the rationale underlying the treatment given this question in both Chapters 4 and 5. Topic 3 sets out two brief but general provisions with application in many of the remaining Chapters.
The principle substantive provisions are set forth in Chapters 2 through 7. Chapter 2 addresses the subject of custodial and decisionmaking responsibility for children. Much of its analysis is a refinement and rationalization of the elastic "best interests of the child" standard set forth in the relevant statutes of every state, and may therefore be relied upon by courts in interpreting and applying their statutes. On the other hand, adoption of this Chapter through legislation would provide a more comprehensive clarification of existing law relating to custodial and decisionmaking responsibility and is for that reason preferable.
Chapter 3, Child Support, deals with a subject that has for more than two decades been under federal mandates requiring adoption and periodic review of guidelines governing decisions in particular cases (unless the trial court explains the reason for departure in a written opinion). Much of this Chapter is therefore intended for the individuals who serve on the body designated under state law to conduct the required periodic reexaminations of its child-support guidelines. These portions of Chapter 3 provide a methodology and rationale for the construction of child-support guidelines that clarify the basic policy choices presented to the guideline writers, recommend a range of reasonable policy choices, and illuminate how to construct guidelines that implement the choice that is made within that range.
Chapter 4 addresses the allocation of the parties’ property at divorce. Its basic framework is compatible with the system of equitable distribution required under the marital-property laws of most American jurisdictions, and most of its provisions could therefore be relied upon by courts in most states in performing their function of interpreting and applying their state laws. Depending upon the jurisdiction, particular sections would require legislative action for their adoption.
Chapter 5, Compensatory Spousal Payments, addresses a subject that under existing law goes by one of three labels, depending upon the jurisdiction: alimony, spousal support, or maintenance. In most states, the law in this area is largely a judge-made elaboration of relatively general statutory principles. In most jurisdictions, the existing statutory law is thus sufficiently flexible that courts could rely upon Chapter 5’s analysis in deciding individual cases. A core recommendation of Chapter 5, however, is the establishment of presumptions or guidelines to provide predictability and consistency, and the Chapter provides an analysis and rationale for a particular approach to the creation of such guidelines. Statewide consistency can be achieved only through the action of a body with statewide authority. In some jurisdictions, however, the existing statutory framework would accommodate the adoption of statewide guidelines through a decision by the highest court that adopted at least portions of this Chapter. In other jurisdictions, legislative action would be required. At the same time, in many jurisdictions lower courts have authority to adopt local rules that function as guidelines. While such locally adopted guidelines do not normally have the same mandatory impact as legislation or a decision of the state’s highest court, they may function quite effectively in providing greater consistency and predictability. Such local guidelines have in fact been adopted in several states, and in at least one case they are based upon the recommendations contained in this Chapter.
Chapter 6 addresses the subject of financial claims that may arise at the termination of certain stable, cohabiting relationships between two unmarried persons. In the United States, such claims have typically been governed by case law, although some states have legislation supplementing it. The approach taken by Chapter 6 is similar to that adopted through case law in at least one state, and by legislation in several Canadian provinces as well as several other foreign jurisdictions. Either method of adoption would seem possible, although legislative enactment would permit a more comprehensive approach to the subject.
Chapter 7 addresses premarital, marital, and separation agreements, which have been regulated by a blend of statutes and case law. Traditionally, statutes have been relatively general, and case law has provided the principal limitations on the enforceability of these agreements. This is still true in about half the states, and the analysis and recommendations contained in Chapter 7 could be relied upon by the courts of those states in the development of their law. However, with respect to premarital agreements, the remaining states have adopted some form of the Uniform Premarital Agreement Act. In these states, the approach recommended by the Institute could be adopted most effectively and comprehensively by amending legislation, but at least some provisions of Chapter 7 could also be relied upon by courts in interpreting or applying the Uniform Act as enacted in their state.
As an aid to jurisdictions that wish to adopt legislatively the Institute’s recommendations with respect to child support (Chapter 3) and compensatory spousal payments (Chapter 5), there are two Appendices that set out appropriate legislative language.
Principles of the Law of Family Dissolution: Analysis and Recommendations (hardbound, li, 1,187 pages, Order Code 1FAMDISOT) is available for purchase through September 30, 2002, for $112.50 plus $10.25 shipping and handling; after September 30, the price will be $125 plus $10.25 shipping and handling. To order, contact ALI’s Customer Service Department at 4025 Chestnut Street, Philadelphia, PA 19104-3099; Phone: 1-800-CLE-NEWS (253-6397); FAX: 215-243-1664; or on the Internet at www.ali.org.
The Principles of the Law of Family Dissolution volume is now available online via Lexis (FAMDIS file within the 2NDARY and FAMILY libraries) [and via Westlaw in the ALI-FAMDISS database, January 21, 2004].
The American Law Institute was founded in 1923 and is based in Philadelphia. The Institute, through a careful and deliberative process, drafts and then publishes various restatements of the law, model codes, and other proposals for legal reform "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work." Its membership consists of judges, practicing lawyers, and legal scholars from all areas of the United States as well as some foreign countries, selected on the basis of professional achievement and demonstrated interest in the improvement of the law. The Institute’s incorporators included Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, and former Secretary of State Elihu Root. Judges Benjamin N. Cardozo and Learned Hand were among its early leaders.
The Institute's restatements, model codes, and legal studies are used as references by the entire legal profession.
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