Family

1. Family • Family law central to status and rights of women • 1848 Seneca Falls convention focused particularly on family law issues: • Marriage • Divorce • Property • Custody of children

2. Women’s Rights in the Family: Two Problems • Difficulties in determining the rules of family law • Difficulties in determining which rules will promote women’s rights. • States have jurisdiction over family matters • 50 different systems • Complexity added by combination of legislation and judicial precedent

3. States and Family Law • States have jurisdiction but in practice families and family behavior are not of government concern. • Family = Private • Laws may require certain behaviors but in practice there is not uniform conformity with law. • Eg; Defense Of Marriage Act – legally defines marriage – has not prevented people outside this definition from setting up “marriage-like” relationships.

4. Two Perspectives on Family Law • Gender role focus • Comparing rights and responsibilities for women and men • Underlying theories of gender roles give meaning to the content of rules/regulations • The effects of gender-roles on the status of women • There is little agreement on this (cultural diversity) • Affected by changing family arrangements and relationships • Judges, lawyers, family members private views

5. Role of Feminists • Minor role in the family law debate • Feminists disagree on what is in the best interest of women • Lawyers are interested and tend to dominate debates • Contemporary women’s movement deeply affected • Feminist theory attacks patriarchal arrangements • Unequal burden of house/paid work responsibilities • Economically dependent women – special protection?

6. Examples of Legal variation • 50 sets of: • Adoption procedures • Who is eligible to adopt • When is adoption finalized • Costs of adoption • Who can offer children/broker adoptions • Information and privacy rights of birth/adoptive parents and adopted • Marriage rules and procedures • Non-marital children • Divorce Laws • Property arrangements • Waiting periods • Conditions for divorce

7. Marriage Regulations Acceptable partners Minimum age Surname after marriage Domicile laws Interspousal immunity Marital support Marital services Marital Property Divorce Legal Fault based No-fault based Alimony Property Parental Rights and Responsibilities Custody after divorce Child support and non-support Families without Marriage “soul mates” (Bruce and Wendy) Gay marriage Property rights Cohabitation laws – illegal! Children born out of wedlock? Legal status depends on the father. Examples of Legal variation

8. Marriage • Unity of Husband and Wife – Coverture • A “covered” woman; a married woman joins her identity with her husband losing her status as “femme sole” • Woman disappears as an independent entity • First challenges to this were from wealthy fathers seeking to protect property from husband’s creditors • Political theory critique: no equality, not democratic • Gradual evolution: property protected, right to control earnings, women were granted contract and liability status (legal status of women has driven legal entity of “marriage”)

9. Marriage • Traditional view: Judeo-Christian idea of lifelong commitment between a man and a woman for the purpose of producing and nurturing children • Governmental presence: has established responsibilities/rights applicable to “legally sanctioned” unions. • When problems arise – govt involved in dispute resolution (child custody, spousal support) • Shared-partnership reforms have varied from state to state

10. Marriage • Separate-but-equal legal status • 1900-1968 marriage was technically viewed as a relationship between two different individuals making equally important contributions • Common-law civil liabilities still in place • Shared equal partnership • Focus on shared overlapping responsibilities • Movement away from duty assignment based on sex • Piecemeal evolution could accommodate this change

11. Marriage Law • Fundamentally concerned with: • Creation of union (marriage) • Dissolution of union (divorce) • Constitutional presence? • None specifically – historically left to states • Full faith and credit clause • Supremacy clause • Any constitutional amendment will conflict with 14th amendment -> equal protection under the law • Supreme court would have to “balance”

12. Marriage Law • Acceptable partners – racial and sex regulations, fees and licenses – racial prohibitions dropped (Loving v. Virginia 1967) sex restrictions still in force • Minimum Age – age requirements still in effect unless the bride is pregnant; then no age restriction exists – all states 18 w/o consent variation (14-18) with consent. • Surname after marriage – few specific statutes; most women take husbands name mostly because of custom. Costs of keeping birth name: some states require wives to use husband’s name on particular documents; courts have upheld states ability to require this of married women only; variation in state laws necessitates explanations to bankers, realtors, insurance companies. Costs of changing your name: divorce, multiple name changes, credit record problems; men unaffected.

13. Marriage Law • Interspousal immunity – spouses cannot enter into contracts with one another nor can they sue each other in court • Problem when women tried to press charges against abusive husbands • Married Women Property Acts – some courts interpret them as allowing contracts and lawsuits others do not

14. Marital-Support Laws • Under common law husbands obligated to support wives • Reform simply extended responsibility for family debt to wives as well as husbands • Husbands not required to pay wives debt; free to refuse eg; McGuire v. McGuire (see page 188) • Today? Each spouse has an obligation to support the other – criminal penalties for abandonment, desertion, nonsupport (reduce state welfare responsibilities)

15. Marital Property • Women no ownership of property as late as 1968 in some states • “Separate Property” – 42 states • Husband and wife treated as separate individuals • May join resources or act independently • Exceptions are the home/homestead and inheritance; eg: some states give a spouse automatic interest in the other’s estate

16. Marital Property • Community Property • 8 states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington • Marriage creates community property • Everything jointly owned if acquired after the marriage • Husbands had the power to manage the property but wives had rights to 50% in the event of death or divorce

17. Evolution of Wife Status • The idea of equal partnership gains ground but has not eliminated either coverture or separate but equal roles • Eg: income earned by wives under Separate but Equal is secondary income (because her role is different yet important to the marriage … in a different way … which some would say is inherently unequal).