Abstract

http://ssrn.com/abstract=1467013
 
 

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


Ira Mark Ellman


Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology

1999

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

Number of Pages in PDF File: 32

Keywords: family law, divorce, custody

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Date posted: September 3, 2009  

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: http://ssrn.com/abstract=1467013

Contact Information

Ira Mark Ellman (Contact Author)
Arizona State University College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
480-965-2125 (Phone)
HOME PAGE: http://www.law.asu.edu/HomePages/Ellman/
Arizona State University (ASU) - Department of Psychology ( email )
Tempe, AZ 85287-1104
United States
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