Sunday, December 1, 2002
Legal group urges revamp on states family laws
A story published today by the New York Times reports that an influential group of lawyers and judges has recommended sweeping changes in family law that would increase alimony and property rights for many divorced women, while extending such rights for the first time to many cohabiting domestic partners, both heterosexual and gay.
The proposals, from the American Law Institute, seek to update family law to reflect changes in society over the last 30 years. One conclusion, for example, is that if a spouse has committed adultery, it should not affect a judge's decision about alimony or marital property.
The findings are likely to have a major impact, given the prestige of the institute, a private organization of eminent lawyers, judges and legal scholars that has had immense influence on the development of American law since the group was founded in 1923.
The American Law Institute has devoted 10 years to drafting the recommendations, which seek to make family law more predictable and consistent.
Judges now have vast discretion in divorce proceedings, so decisions on alimony, child custody and the division of property vary widely by state, and even among judges in the same state.
The report says that a parent's sexual orientation should not be a factor in decisions on child custody, and that domestic partnerships should be treated like marriage in many important respects.
One of the critics, Lynn D. Wardle, a law professor at Brigham Young University, described the report as a radical effort to equalize the legal status of marriage and domestic partnerships involving unmarried people of the same or opposite sex.
In general, the institute said, "domestic partners are two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple."
At the end of an intimate relationship, the report said, "a domestic partner is entitled to compensatory payments" similar to alimony "on the same basis as a spouse."
Likewise, the report said, when domestic partners split up, their property should be divided in the same way a divorce court would divide the property of a husband and wife.
Ira Mark Ellman, a law professor at Arizona State University who was a principal author and editor of the report, said: "Our purpose was to adapt family law to changes in the family as an institution. The law has to take account of social changes driving the family."
The institute does not encourage domestic partnership or cohabitation as an alternative to marriage, but says that domestic partners, like spouses, incur economic obligations to each other when they live together for any significant time.
Even though the institute is highly respected in the legal world, its proposals could encounter political resistance in some states.
