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

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