Legal Group Urges States to Update Their Family Law

Sat Nov 30, 2:56 PM ET

By ROBERT PEAR The New York Times

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WASHINGTON, Nov. 29 An influential group of lawyers and judges has recommended sweeping changes in family law that would increase alimony and property rights for many divorced women, while extending such rights for the first time to many cohabiting domestic partners, both heterosexual and gay.

The proposals, from the American Law Institute, seek to update family law to reflect changes in society over the last 30 years. One conclusion, for example, is that if a spouse has committed adultery, it should not affect a judge's decision about alimony or marital property.

The findings are likely to have a major impact, given the prestige of the institute, a private organization of eminent lawyers, judges and legal scholars that has had immense influence on the development of American law since the group was founded in 1923.

The institute's recommendations on commercial law, torts, contracts, criminal law and other topics have been adopted by many states.

Family law, by and large, is set by the states. Already the proposals, circulated among state officials in recent weeks, have touched off a furor among conservatives, who contend that they are biased against marriage.

The American Law Institute has devoted 10 years to drafting the recommendations, which seek to make family law more predictable and consistent.

Judges now have vast discretion in divorce proceedings, so decisions on alimony, child custody and the division of property vary widely by state, and even among judges in the same state.

The report says that a parent's sexual orientation should not be a factor in decisions on child custody, and that domestic partnerships should be treated like marriage in many important respects.

In handling custody disputes, some judges still assume that gays are unfit to be parents. But the American Law Institute declares, "Homosexual conduct, like heterosexual extramarital conduct, should be disregarded unless shown to be harmful to an individual child." Judges, it says, should not be swayed by stereotypes or "prejudicial attitudes."

One of the critics, Lynn D. Wardle, a law professor at Brigham Young University, described the report as a radical effort to equalize the legal status of marriage and domestic partnerships involving unmarried people of the same or opposite sex.

The proposals "could undermine the institution of marriage and reflect an ideological bias against family relations based on marriage," Mr. Wardle said.

The recommendations, developed after an exhaustive review of court cases and consultations with many experts, are addressed to judges, state legislators and other state officials.

In general, the institute said, "domestic partners are two persons of the same or opposite sex, not married to one another, who for a significant period of time share a primary residence and a life together as a couple."

At the end of an intimate relationship, the report said, "a domestic partner is entitled to compensatory payments" similar to alimony "on the same basis as a spouse."

This is a novel concept. Few American courts have awarded alimony to domestic partners.

Likewise, the report said, when domestic partners split up, their property should be divided in the same way a divorce court would divide the property of a husband and wife.

Ira Mark Ellman, a law professor at Arizona State University who was a principal author and editor of the report, said: "Our purpose was to adapt family law to changes in the family as an institution. The law has to take account of social changes driving the family."

Grace Ganz Blumberg, a co-author of the report, said the recommendations indicated that "we were more willing to redistribute income and wealth" than many courts and state legislatures have been.

As a result, said Ms. Blumberg, a law professor at the University of California at Los Angeles, child support obligations would be higher than under current law when a parent having custody of a child earns substantially less than the other parent.

The institute does not encourage domestic partnership or cohabitation as an alternative to marriage, but says that domestic partners, like spouses, incur economic obligations to each other when they live together for any significant time.

Even though the institute is highly respected in the legal world, its proposals could encounter political resistance in some states.

The report said decisions about alimony and the distribution of property should be made "without regard to marital misconduct." Thus, it said, a wife should not receive less alimony because she committed adultery, nor should a husband be required to pay more because he committed adultery.

Judges have often used alimony and property awards to penalize spouses who caused marriages to fail, and about half the states treat marital misconduct as relevant to decisions on alimony. But the institute said that approach was impractical.

"Justice is hardly served by treating one spouse's adultery as relevant to the alimony inquiry without also examining the other spouse's conduct, the tacit understandings between them, and the conduct of both before and after the adulterous episode," the report said. "Deciding which, if either, to condemn is difficult."

The institute's proposals would expand the number of people who can claim custody of a child or visitation rights. Such claims could be made not only by the legal parents, but also by a "de facto parent," defined as an individual who has lived with the child at least two years and "regularly performed a majority of the caretaking functions" without being paid.

For example, the report said, the lesbian partner of a child's biological mother may, in some circumstances, be able to assert a right to custody or visitation when the relationship between the women ends.

Under existing state laws, judges usually award alimony on the basis of some estimate of a person's need for help, but the American Law Institute rejects that standard as vague and subjective.

The institute says the proper purpose of alimony is compensation for financial losses resulting from the breakdown of a marriage, and it refers to alimony as "compensatory spousal payments."

The amount of such payments, the report says, should increase in proportion to the duration of a marriage and the disparity in the spouses' incomes at the time of divorce two factors that can be measured objectively.

Mr. Ellman said payments under this rule would be "more generous than the alimony awards that many courts now order."

Moreover, he said, "the usual result in the most compelling cases the longest marriages would be to reduce substantially the gap in incomes of former spouses after their divorce."

The report deals only with the claims that intimate partners, married or unmarried, have against each other at the end of their relationship. It does not address the treatment of domestic partners for the purpose of taxes, insurance or employee benefits.

Still, Professor Wardle said the rules were inappropriate because domestic partners did not have the same expectations as married couples. "Many heterosexual couples enter into domestic partnerships because they wish to avoid marriage and the obligations of marriage," he said.

For more than 150 years, American courts have made custody decisions by asking what arrangements would be in the best interests of the child. The American Law Institute said that standard was "too subjective to produce predictable results" and tended to increase conflict between divorcing parents, as each tried to prove that the other would be a bad parent.

To eliminate such "emotional and subjective factors," the report said, a court should normally award custody to parents in proportion to the amount of time they spent caring for the child before a divorce.

The institute also recommended changes in child support, to ensure that children have "a standard of living not grossly inferior to that of either parent."

Under the proposal, more parents would be required to contribute to the cost of a child's college education, and even graduate and professional education.

Parents "tend to underinvest in the education of children with whom they do not reside," the report said.

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