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Abstract:
Among the most fundamental barriers to the aggressive participation of many married women in the work force are the disincentives for secondary income earners embedded in the federal tax code. Specifically, the current code contains a marriage penalty, which is aggravated by the progressive nature of taxation and any potential increases in income taxation. Meanwhile, child care expenses, a prerequisite for entry to the labor market, are treated inadequately. Although these immortal problems persist despite political pushes for relief, new attention to this topic is warranted given the Obama Administration’s pledge for tax law reform. If the principle to be prioritized is that married women should not face tax disincentives to pursue paid work, then the tax code must finally deal with these issues effectively.

federal income taxation, tax, marriage penalty, marriage bonus, family law

Abstract:
Eyebrows have recently arched not only at the high sums involved in big money divorce cases, but also at the amount of ink spilled on this relatively small subset of divorce cases. Yet, it is precisely in big money cases that fairness acquires substantial haziness. Is it fair for a high-wage earner to pay an ex-spouse half of his future profits? Or, would it be fairer for the ex-spouse to be awarded less than half, but still receive millions of dollars? Such questions are particularly acute in short marriages or when one spouse is at fault for the divorce. Courts in both England and the United States have been encountering these issues with increasing frequency and differing results. The majority of American courts have employed the principle of equitable distribution, resulting in a disproportionate property division between spouses, particularly when the marital estate grew because of one spouse’s extraordinary efforts. England, on the other hand, has recently implemented a yardstick of equality that achieves nearly equal property division between spouses, representing a major shift in English case law and a doctrinal break from American law. This Article examines these changes in the comparative context, underscoring the consequences of each country’s interpretation of fairness in post-divorce property division.

family law, comparative law, comparative family law, property division, property distribution, divorce, English law

Abstract:
Many American and English courts today permit infant adoptions without notifying or seeking the consent of biological fathers. However, children’s best interests would be better served by recognizing their father-child relationship, instead of institutionally denying it. Any legal approach that ignores the biological father devalues the importance of a child’s placement in the paternal family unit, the significance of the medical history on the father’s side, the emotional link between a father and his child, and the father’s legal right to his own child. This comparative law Article therefore argues, using the American and English legal systems as illustrative examples, that both the father and the child should have their father-child relationship protected, which must be properly severed and waived by informed consent before a child is placed for adoption.

family law, comparative law, comparative family law, adoption, English law, Fourteenth Amendment, fathers' rights, children's best interests

Abstract:
Family law litigants have long searched for permutations of constitutional principles that gain access to federal courts. Typically, such litigants have been most successful with due process and equal protection arguments—even at the expense of the venerable “best interests of the child” standard in child-related cases. One legal system currently wrestling with this familiar clash between the interests of children and adults is that of England—where adults are armed with the rights granted by the Human Rights Act 1998, while children’s interests are given preference in an earlier act, the Children Act 1989. England’s strategy in dealing with this conflict offers several important lessons to the United States that are examined in this work. First, federal courts should be wary of granting and expanding constitutional relief for adults in child-related cases. Such expansion not only compromises the best interests standard, but also risks significant resistance from the states. Second, federal courts should be cautious in relying on the Constitution to protect children’s interests, which is not as effective as the best interests standard. These lessons emerge from this work’s analysis of England’s experience, providing insight into the tension between children’s interests and adults’ rights in the United States.

family law, comparative law, comparative family law, English law, Human Rights Act 1998, Children Act 1989, equal protection, due process, Fourteenth Amendment, children's best interests, adult rights, constitutional rights

Abstract:
The premarital agreement, perhaps one of the world’s most unromantic documents, also happens to be quite powerful and complex. Although its most highly-publicized use has been to control post-divorce property division, the premarital agreement’s most significant importance is in its power to circumvent the statutory defaults governing spouses’ rights and responsibilities not only during divorce or death, but also during marriage. However, the enforceability of premarital agreements is subject to procedural and substantive review in the United States. Such agreements also raise universal public policy issues with regard to the meaning of fairness and the limits on freedom of contract. To further understand and address these issues, this Article considers premarital agreements in the comparative context, analyzing the approach of the United States, as well as that of France, Germany, Switzerland, and Poland. The resulting lessons implicate the freedom of contract, the potential characteristics of the regulatory framework surrounding premarital agreements, and the popularity of such agreements among prospective spouses.

family law, domestic relations, comparative law, comparative family law, premarital agreement, prenuptial agreement, marital agreement, France, Germany, Switzerland, Poland, contract, prospective spouses, divorce, property division, community property, equitable distribution