Brigitte M. Bodenheimer Memorial Lecture on the Family: Inventing Family Law

University of California Davis Law Review, Vol. 32, p. 855, 1999

32 Pages Posted: 3 Sep 2009

See all articles by Ira Mark Ellman

Ira Mark Ellman

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley; Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology

Date Written: 1999

Abstract

This essay discusses the problem of overbroad discretion throughout family law in connection with the drafting of the American Law Institute’s Principles of the Law of Family Dissolution. Nearly everywhere, both child custody and alimony are within the realm of trial court discretion. The dominant custody standard, 'best-interests-of-the-child,' effectively leaves each trial judge free to make the important value choices that necessarily underlie a custody determination. As for alimony, the dominant approach directs the court to set a maintenance order it believes 'just.' Except for a handful of equal division states, where allocation of marital property is governed by a very mechanical rule, many common law equitable distribution states reject even a presumption of equal division, and instead insist on a discretionary allocation of property by a trial court. The problem with a discretionary system is that judges 'apply different rules as often as they face different facts.' The desire to customize every result to a case's particular facts leads to an unjustified disparity in the treatment of like cases.

We have at times had clear rules. However, the traditional rules relied upon by the common law reflect values we no longer share. In drafting the American Law Institute’s Principles of the Law of Family Dissolution, the drafters began with two thoughts in mind: (1) there is no avoiding the law's choice of values; and (2) the values should be contained in the rules, not obscured in discretion, or in illusory inquiries into parties' own choices during their marriage.

Keywords: family law, divorce, custody

Suggested Citation

Ellman, Ira Mark, Brigitte M. Bodenheimer Memorial Lecture on the Family: Inventing Family Law (1999). University of California Davis Law Review, Vol. 32, p. 855, 1999, Available at SSRN: https://ssrn.com/abstract=1467013

Ira Mark Ellman (Contact Author)

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

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United States

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