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ALI Family Law Report

Posted: 12 Sep 2000  

Ira Mark Ellman

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

Date Written: 2000


American Law Institute gives final approval to The Principles of the Law of Family Dissolution at its May, 2000 Annual Meeting.

Subject to the discussion at the meeting and to final editorial revisions, the American Law Institute completed its review of this project by giving final approval to Tentative Draft No. 4, which was presented to this meeting, as well as final approval to earlier drafts that had been tentatively approved. The entire work will be integrated into a coherent final text, which is expected to be published in 2001.

Tentative Draft No. 4 included two new chapters. Chapter 6, entitled Domestic Partners, addresses the financial claims that may arise at the termination of certain stable, cohabiting relationships between two persons who do not marry. Chapter 7 addresses Agreements, including premarital and marital agreements, separation agreements, and agreements between domestic partners that limit or alter the rights otherwise provided for in Chapter 6.

Chapter 6's treatment of domestic partners does not adopt the contractual approach most often associated with the California Supreme Court's decision in Marvin v. Marvin, but instead follows more recent trends that treat persons as having entered a relationship with legal significance when they live together and share a life together for a sufficient period of time. These trends are most evident in the law of some foreign countries, particularly Canada and Australia. Under the formulation adopted by the Institute, parties who live together with their common child, for the required minimum time period, are deemed domestic partners. The required time period is left for the adopting jurisdiction to choose, but the commentary suggests that a two-year period would be reasonable. Unrelated parties who do not have a common child are presumed to be domestic partners if they share a common household for a separately-established minimum period, the commentary suggesting a three-year period as a reasonable choice. The resulting presumption is rebuttable by evidence that the parties did not "share a life together as a couple," a defined phrase that is elaborated upon in the commentary. Parties may also be treated as domestic partners if one of them shows that they shared a common household and a life together for a "significant period of time," even if that time is less than the minimum periods set in the other provisions. Once parties are considered domestic partners, the dissolution of their relationship triggers property and compensatory payment (alimony) remedies that overlap almost entirely with those available at the dissolution of marriage. It should be noted that Chapter 6 addresses only the legal claims that the domestic partners have against one another at the dissolution of their relationship. Nothing in the chapter requires third parties, such as employers or government agencies, to accord any special treatment of the domestic partners. The relationship of third parties to married couples, or unmarried domestic partners, is not within the scope of the ALI's Family Dissolution project. Chapter 6 makes no distinction between opposite-sex and same-sex couples, incorporating both within its rules.

Chapter 7 deals with Agreements. It recognizes the value of private agreements to the parties, but also that formal contracts, even when made, can never be the exclusive source of the rights and obligations that arise between persons who live in a family relationship. It thus provides for the enforcement of agreements within the limits of constraints appropriate to the family context that supplement the rules of contract applicable to commercial arrangements. These constraints are of two kinds. Procedural requirements are addressed primarily by Section 7.05. It requires the person seeking to enforce a premarital agreement to show that the other parties' consent to it was both informed, and not given under duress, but establishes a rebuttable presumption that this burden is met when the agreement is executed at least 30 days before the wedding, both parties had a reasonable opportunity to consult independent counsel, and (if either party did not have counsel) the agreement contains plain language explaining how it alters rights otherwise arising at dissolution. There is also a separate disclosure requirement. Analogous procedural requirements apply to marital contracts and contracts between domestic partners that would waive claims otherwise recognized under Chapter 6. Fairness requirements are addressed primarily by Section 7.07, which establishes circumstances under which a court must ask whether enforcement of an agreement would work "a substantial injustice." This section recognizes that a family dissolution may occur under circumstances different than those at the time of execution in ways that alter the agreement's impact upon the parties, and that even if contracting parties are able to anticipate the possibility of altered circumstances, they may not be able to project how the new circumstances would affect their evaluation of the agreement's terms. It thus provides that a court should consider whether enforcement of an agreement would work a substantial injustice if, since the time of execution, the parties have had children (when they did not before) or if a fixed period of time has passed. While the specific time period is not set by this section, the commentary suggests that a ten-year period would be reasonable for this purpose. Section 7.07 applies to agreements between domestic partners as well as those between prospective or current spouses. Chapter 7 also recognizes the unconscionability of the doctrine's application to these agreements. Whereas Section 7.07 is concerned with fairness as of the time of enforcement, Chapter 7 follows the Restatement of Contracts in providing that unconscionability is the appropriate standard by which to judge an agreement's fairness as of the time it was made. The chapter notes that the unconscionability doctrine is likely to have an important role in policing agreements made during marriage.

Chapter 7 contains the usual rules denying binding effect to agreements concerning child support and custody, and also generally denies effect to agreements that would alter the grounds for divorce allowed under the applicable state law. It contains a separate set of sections on separation agreements. These sections avoid the traditional analysis that unrealistically assumed courts would review all such agreements at the time the decree is entered, focusing instead on clarifying the circumstances under which courts should deny enforcement of the parties' agreement, or modify it, to take into account changed circumstances. The separation agreement sections specially protect parties with residential responsibility for children, or with substantially fewer financial resources that the other party, from the enforcement of agreements that would substantially and unjustly impair their economic well-being.

Tentative Draft No. 4 also contains new or amended provisions from other chapters. Of these, the most significant are provisions establishing a category of persons called "parents by estoppel," who may be treated as parents for both custodial and child support purposes. These provisions deal with circumstances in which a person's course of conduct was of a nature that should estop that person from denying a child support obligation, or from denying the other party's claim to be treated as a parent under the provisions for allocating custodial responsibility.

Tentative Draft 4 of the Principles of the Law of Family Dissolution, as well as previously published drafts containing other chapters, may be obtained from the American Law Institute at

Suggested Citation

Ellman, Ira Mark, ALI Family Law Report (2000). Available at SSRN:

Ira Mark Ellman (Contact Author)

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States
480-965-2125 (Phone)


Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

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

Berkeley, CA 94720-2150
United States

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