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UNIT II: APPLICATIONS OF THE LAW
TO THE INDIVIDUAL
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FAMILY LAW
GENERAL COMMENTS
This chapter presents relevant information about unusually sensitive issues, which directly or
indirectly will interest most of your students. It particularly touches the lives of students from families
that have been involved in divorce with its related psychological, economic, and child-custody problems.
Some students are likely to be very opinionated because of such personal involvement, or even because of
highly publicized accounts of the marital problems of celebrities. Moreover, almost all of your students
probably intend to be married or have some sort of domestic partnership in the foreseeable future.
During the life of this edition, new legal and medical developments in cloning are likely, as well as
developing legal questions related to gay unions, with the many related property and child-care issues. In
the last few editions these concepts have continued to develop but are far from resolution. We don’t
expect resolution of many of these issues in our lifetimes. Remember, in your classes you have test tube
children who are not adults, and children from a variety of family relationships. A growing issue
surrounds the family and marriage rights of non-traditional relationships, those between homosexual
and/or transgender individuals. Abortion, of course continues to be a dividing issue. It is highly likely
that the students in your classroom will hold a variety of viewpoints on these issues. Be careful to
facilitate a respectful dialog, as emotions may run high as these legal and social issues are discussed.
CHAPTER SUGGESTIONS
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1. Because most students have preconceived ideas about such matters as divorce, support, adoption,
fertility, and child custody, we have had good results requiring students to prepare an argument pro
or con on a specific narrow issue and present it to the class. Time-consuming research in support of
such responses is generally not required; the text contains sufficient information for formulation of
solid opinions. The following are examples of questions that can be effectively utilized in this class
exercise. You should be able to easily add to the list.
Should domestic partnerships be authorized by your state?
What financial benefits of marriage ought to be available to cohabiting homosexuals?
Should gay unions be authorized by your state? Should gay marriage be allowed?
How can roommate relationships be distinguished from domestic partnerships when marital
benefits are permitted?
Should requirements for marriage, as well as for divorce, be made more difficult? Does the
2. Invite a reputable attorney who specializes in divorce law to talk to the class on
“Divorce/dissolution: the result, not the cause of a failed marriage.” We have found such sessions
to be especially meaningful if the class develops questions that are forwarded to the guest attorney a
3. In every chapter, we recommend class discussion of many unanswerable questions to stimulate
interest, participation, and learning. Family law is one subject that has the potential to rekindle
personally painful memories for some students whose family ties have been torn apart. For this
reason, some especially sensitive topics might be left for the student to learn from the text, such as
domestic torts, child support and its collection, child custody arrangements, and child abuse. If you
choose to address these topics, do so realizing that it is not an abstract inquiry for some.
4. Videos such as “Evelyn” and “Kramer v. Kramer” can be considered for classroom viewing or
extra credit. In recent years there have been other relationship movies that frequently your author
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has not seen or in some cases can not bear to watch and thus cannot recommend. That does not
mean you cannot or should not consider your own list.
5. An Interesting article in the March 2002 edition of the America Bar Association Journal provides
some interesting statistics from the U.S. Census Bureau about the nature of families. Depending on
7. If you have students from different states, you can assign each to research the laws in his or her
state concerning marriage, divorce, custody, support and other topical issues, for comparison.
8. In May 2007, Oregon joined Vermont, Connecticut, California, New Jersey, Maine and Washington
state in offering civil unions or domestic partnerships to same-sex couples. Perform an Internet
search to see the status of your state or whether additional states have joined this group. What is
the status other states recognizing these relationships if the couples move to a state without such a
law. Can couple vacate their domestic partnership in their home state or must they return to the
state in which it was formed?
FOR CRITICAL ANALYSIS
Johnson v. Florida
1. The purpose is to encourage students to distinguish between philosophical principles of law on the
one hand and a constitutional principle under current law on the other. A natural law right of
2. True. While it is one thing to say that the presence of a measurable amount of cocaine in a child’s
blood is a sufficiently definite standard by which to measure applicability of a criminal statute, it is
quite different when less measurable standards are applied. Is criminal abuse demonstrated
whenever science can identify deleterious effects in a newborn child? Furthermore, would
imposition of the criminal statute “after the fact” solve the problem? Students should have a lively
discussion about regulating motherhood through passing criminal statutes.
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Alison D. v. Virginia M.
1. Visitation probably involves more parental connection with a child than a mere change of
possession, for example, to a day-care provider. This premise is consistent with the definition of
visitation as a limited form of parental custody, as the majority opinion did. On the other hand,
there may be many persons who lavish attention and love upon a child—why is one more
“parental” than another?
ANSWERS TO QUESTIONS AND PROBLEMS
1. The following statements reflect existing legal rules that affect the marital relationship. Students
should be asked: Is this good law? If not, how should it be changed? (Note that the text does not
present detailed information on any of the items, nor solutions. A lively discussion is probable.)
a. Married persons are treated differently under federal and state income tax laws; financially
advantageous joint returns are permitted. Unmarried cohabiting persons receive no comparable
special tax benefit.
b. Either married or unmarried persons may use their own or their partner’s surname, as long as
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j. Although spousal rape is recognized as a special crime in some states, spouses generally are
immune from prosecution for minimal sexual acts that would, of course, constitute an assault if
done by a stranger. A spouse cannot easily evict his or her mate from the family home for
abusive conduct. An action for dissolution must be filed and an injunction granted by the court.
On the other hand, a cohabiting person who owned the domestic home could find it virtually
impossible to evict an abusive partner. If, as likely, the abusive partner is not a tenant, then the
eviction laws that favor landlords would not be available to the victimized partner who owns
the home. Nor could a dissolution action be filed and an injunction obtained. A common-law
action for ejectment (similar to eviction of a tenant) could be brought, but an injunction would
be unlikely unless the abusive conduct was serious enough to be characterized as a continuing
felony, such as stalking.
k. Upon death, every adult, whether married or not, can leave assets by will to persons of his or
her choice. As discussed in Chapter 14, state laws protect married persons from disinheritance
by their spouses. For example, in some states, neither spouse can dispose of more than one-half
of the community or marital property. State laws do not regulate testamentary dispositions by
will of unmarried persons; they are free to leave their entire estate to anyone. Upon divorce, of
course, alimony and property division may be ordered by the court. The opposite is true relative
health benefits to “domestic partners” who are not married.
n. The Social Security system does not recognize cohabiting partners as a covered legal
relationship. Thus, the death of a cohabiting partner, unlike that of a surviving spouse, does not
qualify the survivor for Social Security benefits.
o. Upon divorce, each spouse has the right of civil discovery of all business dealings, records, and
accounts of the other spouse. This right is necessary to ensure complete disclosure of all
relevant fiscal information. No comparable right exists for persons who end a cohabiting
relationship, in the absence of a valid prior agreement.
p. Workers’ compensation laws do not pay death benefits to a surviving cohabitant, whereas they
do to a surviving spouse.
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2. This question is essentially a discussion guide.
3. a. Standing alone, this agreement is presumptively unconscionable and therefore unenforceable. A
hypothetical situation might be imagined in which such an agreement would be enforceable, but
it would be extraordinary.
4. State laws vary widely on the subject of rights of cohabiting persons. The modern trend is to
enforce agreements of future support, even if oral. Of course, proof of an oral agreement is a
5. As indicated in the text, there are no answers to these perplexing questions. However, students may
be asked to distinguish between the desires of a child to know of its genetic ancestry versus the
desire of a donor to identify his or her genetic offspring.
6. Courts increasingly distinguish between genetic and gestational roles of women. A surrogate
mother did not intend to be a parent while the donor(s) did—an important factor. However, it is
difficult to imagine a surrogate mother being arrested for the felony of kidnapping for failing to
7. The modern view is that homosexuality is not, in and of itself, a disqualifying factor for parenthood
in most states. Thus, Kay would not be able to obtain custody of her grandchild because her
daughter was living in a homosexual relationship.
8. This question is a discussion guide relating to issues that will be of significance to your students in
their child-rearing years. The topics presented by this question (and in the text) may appear to some
students as remote and merely hypothetical. However, the issues are real, and demand attention.
Your may want to use the following example in class:
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9. The states vary widely on how goodwill, formal education, and licenses ought to be treated upon
dissolution of marriage. Perhaps the major point is that courts do take such circumstances into
consideration in either property division (by valuing the goodwill or degree as marital property) or
by adjusting support.
10. Spousal torts result in civil liability between spouses for the same conduct that produces civil
liability between strangers. This is a sensitive topic and, thus, an excellent topic for classroom
discussion. Ask your students if a slap on the face between spouses, or by a parent to a child, ought
to justify a civil action for damages. Spousal rape is a crime in many states and would justify a civil
action for battery. Should the definition of rape be the same when the offensive conduct is between
either married partners or strangers? The purpose of the question is to cause students to make an
11. This would make a good research problem, because state laws differ. Generally, a spouse’s separate