On the danger of allowing marital fault to re-emerge in the guise of torts

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1355-1367

  Krause, Harry D ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032378695     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (28)

1. MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE (1996).
2. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW (1987).
3. MARY ANN GLENDON, STATE, LAW, AND FAMILY: FAMILY LAW IN TRANSITION IN THE UNITED STATES AND WESTERN EUROPE (1977).
4. Id. at 313.
5. MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 177-230 (1994).
6. See Fox Butterfield, U.N. Women's Forum is a Test for Pope's Advocate, N.Y. TIMES, Aug. 29, 1995, at A3.
7. Id.
8. Id.
9. For a recent example, see Derrick Bell, At Last, Harvard Sees the Light, N.Y. Times, Jan. 27, 1998, at A24.
10. GLENDON, supra note 5, at 209.
11. See, e.g., Harry D. Krause, Property and Alimony in No-Fault Divorce, 14th Congress of Comparative Law, Académie Internationale de Droit Comparé Athens, July 31-August, 1994.
12. See MAX RHEINSTEIN, MARRIAGE, STABILITY, DIVORCE AND THE LAW (1972).
13. See MAX RHEINSTEIN & MARY ANN GLENDON, Interspousal Relations, in 4 INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW: PERSONS AND FAMILY ch. 4, at 3 (1980).
14. See, e.g., Kennedy v. Kennedy, 303 So. 2d 629, 631 (Fla. 1974); Brantner v. Brantner (In re Marriage of Brantner), 136 Cal. Rptr. 635, 637 (Cal. Ct. App. 1977).
15. See Orr v. Orr, 440 U.S. 268, 283 (1979).
16. See, e.g., In re Marriage of Sappington, 478 N.E.2d 376, 378 (Ill. 1985) (interpreting Illinois' statute ch. 40, para. 510 (b) as it existed at the time). Cf. CAL. CIV. CODE § 4801.5 (repealed 1994); N.Y. DOM. REL. LAW § 248 (McKinney 1986 & Supp. 1998).
17. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
18. See HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 460-64 (3d ed. 1995).
19. Carolyn Phillips, Divorce Case Marks First Time a Spouse Wins a Civil Award for Emotional Distress, WALL ST. J., Feb. 2, 1988, at 39.
20. See, e.g., Hakkila v. Hakkila, 812 P.2d 1320 (N.M. 1991); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993).
21. Roxanne Barton Colin, A Safer, Saner, Fairer Nation, TRIAL, Oct. 1992, at 7.
22. See Beltran v. Beltran, 227 Cal. Rptr. 924 (Cal. 1986); Marriage of Foster, 227 Cal. Rptr. 446 (Cal. 1986).
23. See Judith H. Dobrzynski, Judge Splits on Issues and Money in G.E. Executive's Divorce Case, N.Y. TIMES, Dec. 12, 1997, at D1, D18. Note, however, that recognition of "economic merit" is specifically rejected by the American Law Institute's reform project. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECCOMMENDATIONS (Proposed Final Draft, Part I, February 14, 1997), at 10-11.
24. See Judith H. Dobrzynski, Judge Splits on Issues and Money in G.E. Executive's Divorce Case, N.Y. TIMES, Dec. 12, 1997, at D1, D18. Note, however, that recognition of "economic merit" is specifically rejected by the American Law Institute's reform project. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECCOMMENDATIONS (Proposed Final Draft, Part I, February 14, 1997), at 10-11.
25. BURGERLICHES GESETZBUCH [Civil Code] (BGB) § 1579 (F.R.G.).
26. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Proposed Final Draft, Part I, Feb. 14, 1997), at 14-15.
27. As discussed above, I certainly agree that we must reduce the economic risks of marriage for the economically weaker party for whom modern, fault-free, unilateral divorce has made the option of role-divided marriage increasingly unattractive. I also have long argued that traditional fault-based alimony law yielded wholly inappropriate results in numerous situations, and that objective criteria for alimony needed to be developed to reflect the parties' "investments" in their marriage as well as to compensate continuing services rendered to the former marriage (as in post-divorce child custody). See Harry D. Krause, The Theory of Alimony, in CASES AND MATERIALS ON FAMILY LAW 963-69 (1976); see also KRAUSE, supra note 17, at 421-26. I also believe, however, that we must not now overbalance the equation so far that marriage will come to pose unacceptable economic risks for the economically stronger party - lest we shall see long-term familial relations sink further into the legal and social anarchy of unmarried cohabitation. See id. at 74-87, and Harry D. Krause, Unmarried Couples, 34 AM. J. COMP. L. 533-48 (Supp. 1986).
28. As discussed above, I certainly agree that we must reduce the economic risks of marriage for the economically weaker party for whom modern, fault-free, unilateral divorce has made the option of role-divided marriage increasingly unattractive. I also have long argued that traditional fault-based alimony law yielded wholly inappropriate results in numerous situations, and that objective criteria for alimony needed to be developed to reflect the parties' "investments" in their marriage as well as to compensate continuing services rendered to the former marriage (as in post-divorce child custody). See Harry D. Krause, The Theory of Alimony, in CASES AND MATERIALS ON FAMILY LAW 963-69 (1976); see also KRAUSE, supra note 17, at 421-26. I also believe, however, that we must not now overbalance the equation so far that marriage will come to pose unacceptable economic risks for the economically stronger party - lest we shall see long-term familial relations sink further into the legal and social anarchy of unmarried cohabitation. See id. at 74-87, and Harry D. Krause, Unmarried Couples, 34 AM. J. COMP. L. 533-48 (Supp. 1986).