Marriage is a contract which imposes on both parties the obligation to support each other financially. In this it differs from cohabitation. But the extent of the obligation is tested only when the marriage breaks down, a divorce is obtained and the parties apply to the court for financial relief. If you are seeking a divorce, contact an experienced Riverton Utah divorce lawyer.
In order to obtain a divorce, the husband or wife who petitions has to assert that the marriage has irretrievably broken down, and has further to add the evidence that he or she relies upon. For an immediate divorce evidence on one of two bases can be used. The petitioner can add to the statement that the marriage has irretrievably broken down an allegation of adultery and assert that with the husband or wife. Alternatively, the petitioner can allege unreasonable behavior, which has to be behavior which is so intolerable that the petitioner could not be expected to put up with it.
The distinction between an unhappy marriage and one which has irretrievably broken down can only be made by those who have already divorced. Ironically, the fact of divorce is not proof that the marriage did irretrievably break down. It is not unknown for unhappily married couples to divorce because their unhappiness is unresolved although the marriage relationship may not have broken down. Conversely, many husbands and wives stay together for financial convenience or because they consider it to be in the best interests of the children even though their emotional relationship has ceased to be of any significance.
Every married individual, or couple if they are able to discuss their problems together, has to consider whether a relationship has ended. In recent years the relevance of their financial condition has usually been at the forefront of their problems. It is essential they should consider whether difficult financial circumstances exacerbate other problems. If there is no prospect of the financial situation being improved they have to consider how divorce will resolve it.
For instance, if a warring couple are in arrears with mortgage payments on their home, a voluntary sale is more likely to produce a better offer than a forced sale by the building society, but it is unlikely that two homes can be purchased with the proceeds. Perhaps debt counselling in this situation should precede marriage counselling.
Matrimonial counselling should enable a couple to decide whether they can bear to live together in an attempt to recreate their relationship. Often there is no question of joint consultation: if one partner has decided to leave, and is convinced that the marriage is at an end, he or she will not necessarily accept the need for counselling. The partner who remains will be in urgent need of counselling in order to learn to accept the situation or to learn how to persist in trying to save the marriage. He or she may however be forced into proceedings to prevent the other from taking unwise financial decisions such as emptying a bank account.
Legal advice should be obtained at an early stage before any final decisions are taken. Divorce is, after all, a legal process. No responsible solicitor or other adviser will recommend that divorce be undertaken lightly because its consequences, unless they can be agreed, may be unforeseeable. Too frequently, couples separate and make separate arrangements without finding out whether the agreed solution is feasible. Of course if a marriage between financially independent partners ends in circumstances where there are no dependent children it may be that that neither wishes to incur the costs of legal advice; and the only significant asset may be a home which is to be sold and its proceeds equally divided. Many eventualities can be anticipated which should be considered and prepared for in advance. It would be unfortunate if, having divorced on an agreed basis, the husband or wife were later to lose work or earning capacity and find that there was no possibility of claiming maintenance from the other.
Equally, if a claim for maintenance was made in a petition and was not dismissed later by an agreed order, the later inheritance of money by the other party could result in a financial claim being pursued.
There are limits to what divorce and financial proceedings can achieve. One purpose of early legal advice is to obtain information as to the likely range of settlement which, in each case, it may be possible to expect. If a client is prepared to discuss matters with his or her spouse in an attempt to resolve matters it may be useful to refer the couple to mediation. Mediation is a process designed to help couples resolve their disputes in relation to children and money. There are many different models, some involving one mediator and others two. It can take place before or during the divorce and financial proceedings. It may result in no agreement at all or agreement on some or all issues. Each party should always obtain independent legal advice on the proposed terms of settlement.
Annulment or Divorce?
If you are married, you may have an alternative to divorce under Utah law. Legal separation and annulment are substitutes for divorce— one quite feeble, the other quite powerful. Legal separations keep a thin version of a marriage alive. Annulments are hard to get (in theory). But if a marriage is annulled, both parties can remarry; indeed, this is usually the point of an annulment. Both annulments and legal separations appeal mostly to people with religious scruples against divorce. Annulment is another way of ending a marriage. Annulment wipes a marriage off the books, as if it never existed. In American courts, annulment proceedings are much less common than divorce proceedings. The formal rules have always been—on the surface, at least—quite strict. Annulment is possible only when something was radically and fatally wrong with the marriage from the very beginning. A decree of annulment tears up a marriage “by the roots.” State statutes list various “grounds” for annulment—typically bigamy, impotence and fraud. The law of annulment distinguishes between “void” and “voidable” marriages, based, at least loosely, on the severity of the marital defect. Speak to an experienced Riverton Utah divorce lawyer to know if you can get your marriage annulled.
Choosing The Right Lawyer
Lawyers who represent clients act to protect legal entitlements by asserting them in litigated disputes or negotiations, counsel their clients on what the law permits, and structure their clients’ affairs with reference to the law. As this term will be used here, a legal entitlement is a substantive or procedural right, created by the law, which establishes claim-rights (implying duties upon others), privileges to do things without interference, and powers to change the legal situation of others (e.g., by imposing contractual obligations). Familiar examples of substantive legal entitlements include privacy interests that are protected by statutes and common-law rights against wiretapping, public disclosure of private facts, illegal searches by law enforcement officers and the like; real property rights that protect against trespass, encroachments, and seizures of property by the state without the payment of compensation; intellectual property rights that prohibit the appropriation of valuable ideas; and common law tort rights that seek to deter accidental injuries by providing remedies for those who have been harmed through the negligence of others. Entitlements may be created by courts, legislatures, administrative agencies, or by citizens themselves, using legal tools for private ordering, such as wills, trusts, contracts, partnerships, and corporations.
In addition to substantive entitlements, the law also establishes procedural entitlements, which regulate the manner in which substantive entitlements are investigated and adjudicated.
For example, a lawsuit must be commenced with pleadings which are formally served using specified procedures. This process ensures that someone who is made a defendant in a lawsuit has notice of the claims being asserted against him, and an opportunity to defend himself. The rules of evidence also create procedural entitlements, which ensure that substantive rights and obligations are adjudicated in an orderly way, on the basis of admissible evidence only, and without unjustified interference with the rights of the litigants or of third parties. The hearsay rule, for example, prevents the introduction of evidence that is generally deemed unreliable, while the rule against introducing evidence of a party’s insurance coverage seeks to prevent the jury from acting out of bias against “deep pocket” insurance companies. Procedural rules may also be designed to protect more substantive interests. For instance, the rule against admitting evidence of a subsequent remedial action taken by a party is intended to avoid creating a disincentive to modify products or change safety procedures out of fear that these changes will be admitted at trial to show wrongdoing.
Legal entitlements should not be confused with the legal merits of a case, if by “merits” one means a judgment about guilt or innocence, liability or nonliability, or some similar factual and legal conclusion.
Legal entitlements may conflict, and the job of a lawyer or judge may be to make a judgment about how a conflict among entitlements should be resolved. That resolution is what is commonly meant by the merits of a lawsuit. The possibility of conflicting substantive and procedural entitlements is familiar from criminal litigation, in which important dignitary interests of the defendant are protected by procedural entitlements against abuse by state officials. These entitlements, in turn, are backed up by remedies that may have an impact on the determination of the guilt or innocence of the accused. For example, the remedy for a wrongful search of the defendant’s premises may be exclusion of the wrongfully obtained evidence from trial. If that evidence is crucial to the prosecution’s case, the exercise of the defendant’s procedural entitlement may result in a verdict of acquittal.
One of the fundamental principles structuring the law governing lawyers is that a lawyer’s role is defined and bounded by the client’s legal entitlements. To put it another way, the lawyer is an agent for a principal, the client, and as such can have no greater power than that possessed by the client. In legal terms, an agent is someone empowered to act on behalf of another. Because of the agency relationship between lawyer and client, the lawyer’s decision making authority is structured and limited by the client’s legal entitlements. As an authoritative summary of American law puts it, a lawyer has a legal obligation to “proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.” This duty may require a lawyer to argue the client’s legal position in litigation, counsel the client on what the law requires and permits, or structure a transaction to avoid legal penalties or take advantage of legal benefits. But in any event, when a lawyer is acting in a representative capacity, her legal obligations are constrained by the client’s legal entitlements. Acting on any other basis, such as ordinary moral reasons or the interests of clients, would exceed the lawful power of the lawyer as agents. It would be ultra vires, in the language of agency law, and thus a legal nullity.
A corollary of the principle that the client’s legal entitlements structure the attorney–client relationship is that lawyers may not permissibly assist clients in legal wrongdoing. The lawyer disciplinary rules state that lawyers may not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent,” and agency law provides that the lawyer retains inherent authority, which cannot be overridden at the instance of the client, to refuse to perform unlawful acts. The lawyer may not assist the client in illegality, because the lawyer–client relationship is created by the legal system for a particular purpose, which is to enable clients to receive the expert assistance they need in order to determine their legal rights and duties. As the United States Supreme Court noted, discussing the attorney–client privilege, a relationship of trust and confidence between a client and an attorney is necessary “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”
On the other hand, lawyer–client communications are not privileged ab initio if the client consults a lawyer for the purpose of committing a crime or fraud. These legal principles show that society tolerates lawyers (albeit sometimes grudgingly) because lawyers contribute to a process by which people can regulate their interactions with one another with reference to legal entitlements. Take away the idea of legal entitlements and lawyers would literally cease to exist as a distinct profession. Thus, whatever lawyers do for their clients must be justified on the basis of their clients’ lawful rights, permissions, and obligations.
Lawyers often talk as though the bounds of their role obligations are given by client interests rather than legal entitlements. In any principal–agent relationship, however, the agent’s rights and obligations are derivative of those of the principal. Someone who retains a broker to sell property conveys legal authority to the broker to transfer only whatever title the owner has. Similarly, a lawyer’s professional role is defined with reference to the rights and duties vested in the client by the law. Lawyers may lawfully do for their clients only what their clients lawfully may do. The lawyer’s professional role also excludes any permission on the part of the lawyer to try to exploit “arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” A lawyer may be able to get away with some action that goes beyond her client’s entitlements, but this would lack significance as a lawful act, and thus not be something that can properly be said to be within the role of lawyer (as opposed to some other kind of adviser).
This is such an obvious point that it is hard to understand why lawyers sometimes fail to appreciate it. But it may be the most pervasive feature of the normative framework of practicing lawyers that they proclaim an obligation to defend their clients’ interests within the law, rather than vindicating their clients’ legal entitlements. The difference between “interests within the law” and legal entitlements may seem like a semantic nicety with no theoretical significance, but in fact it reveals a vast gulf between attitudes of fidelity to the law and indifference to the law except as a potential source of sanctions to be avoided. Entitlements are what the law, properly interpreted, actually provides, while working “within the law” seems to suggest something broader and looser—equivalent, perhaps, to “whatever one can get away with.” The question of whether the lawyer’s obligation ought to be oriented toward client interests or entitlements may therefore be resolved in part by considering basic jurisprudential issues regarding the nature of the law.
Many legal ethics problems, which seem to present a conflict between legal entitlements and moral values, actually raise legal-interpretive questions. Once the interpretive issue is resolved, the moral issue dissolves. In general, this can be called the problem of “loopholes” in the law. The idea of exploiting loopholes is a staple of the popular criticism of lawyers, but it is important to be careful in defining these and other cognate terms. Members of the public sometimes complain about lawyers “getting the defendant off on a technicality,” where the reason for the acquittal, or dismissal of charges, was to remedy the violation of a constitutional right held by the defendant. The problem perceived by observers is that the result of the proceeding did not track the substantive guilt or innocence of the defendant—in other words, whether he actually did the act of which he was accused. But the purpose of a trial is not only to ascertain guilt or innocence, but to do so within a framework of procedural entitlements that are designed to safeguard important values such as the privacy and dignity of all citizens, and to protect against abuse of state power. These procedural entitlements are no less part of the law, and no less a part of the legal justice of the matter, than the determination of factual guilt or innocence. While one might criticize the existence or content of a particular procedural entitlement, perhaps on the grounds that it ties the hands of law enforcement personnel or is not necessary to protect values like privacy or dignity, the possibility that the entitlement is ill-considered does not make it a loophole.
Similarly, procedural entitlements are available to parties in civil litigation which may have the effect of defeating the resolution of issues related to the substantive entitlements of the parties. Again, there are good reasons for the legal system to recognize certain procedural entitlements. The statute of limitations, for example, serves the dual purpose of ensuring that trials are not conducted on the basis of stale evidence and also of permitting citizens to form stable expectations that, at some point, their right to something will not be challenged. Legal ethics scholars sometimes talk about the “merits” of a case, and when that term is used, it is important to query whether merits includes the correct resolution of interpretive questions related to procedural entitlements. The lawyer in a case like the statute of limitations hypothetical may take an action that vindicates her client’s procedural entitlement, but defeats resolution of the substantive merits of the opponent’s position. This is consistent with the lawyer’s obligation of fidelity to law, because the legal system includes both substantive and procedural entitlements, and because the lawyer has a legal duty, as an agent of her client, to assert her client’s legal entitlements, whether substantive or procedural.
Lawyers quite properly understand themselves as having demanding obligations of client service, including following their clients’ instructions, keeping confidences, and delivering legal services in a competent and diligent manner. Curiously, American lawyers at least tend to include in their normative self-understanding an obligations to provide “zealous” representation, which gives competence an oddly affective dimension. The term “zealous” appeared in the ABA’s Model Code of Professional Responsibility, which has since been superseded in virtually every U.S. jurisdiction by the Model Rules. The modifier “zealous” does not appear in any of the legally enforceable obligations of the current Model Rules, although the Preamble to the Rules does continue to recognize that “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Nevertheless, if one were to ask practicing lawyers to justify actions in the hypothetical cases that appear to violate ordinary moral obligations (i.e., pleading the statute of limitations, filing the motion to terminate benefits, or aggressively questioning the plaintiffs about their sexual practices), the argument would more often than not make reference to the duty of zealous advocacy.
The enduring popularity of this notion in the thinking of lawyers is noteworthy, because it seems to prescribe an affective state, as opposed to an action, and as a general rule lawyers do not think of legal obligations in terms of emotions and attitudes. It would be an unusual lawyer who advised a client that the duty of reasonable care in tort law required the client to feel a sentiment of concern for third parties; the lawyer’s advice would rather be that the client had to take such-and-such a precaution, and that would be the end of the matter. My hunch is that lawyers are attracted to the idea of zealous advocacy because it simplifies their normative universe to a considerable extent, by resolving ethical dilemmas in favor of the client’s interests. It only does so, however, by begging all of the important questions about how the obligation of zealous representation is to be weighted against the obligation to respect the law, which is also a feature of the lawyer’s role.
It would be an unqualified intellectual advance if the expression “zealous advocacy” disappeared forever from legal ethics. Its overuse seems to encourage two significant conceptual mistakes. First, lawyers tend to forget the second half of their little mantra. The ABA Code said that lawyers should represent their clients zealously within the bounds of the law. As the Restatement provides, the lawyer’s basic duty is to “proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation.” The reference to the client’s lawful objectives shows that the client’s legal entitlements, not the client’s autonomy, moral commitments, or the lawyer’s own moral projects, are the yardstick against which the lawyer’s duties should be measured. In other words, the Model Code underscores the agency-law position taken here, which is that the lawyer’s basic duty as an agent for her client is to act competently and diligently on behalf of the client, but only to the extent that the client’s interests are recognized as legal entitlements. Even in litigation contexts the lawyer’s obligation is to pursue the client’s legal entitlements by lawful means, not to be unboundedly zealous. The law governing lawyers in litigation recognizes numerous limitations on zealous representation, including the prohibition on presenting frivolous legal arguments in federal and state rules of civil procedure, and duties of candor to the tribunal in the lawyer disciplinary rules. Although in some areas of practice, such as the representation of indigent criminal defendants by grossly overworked public defenders, lawyers may be rightly accused of being insufficiently zealous, by far the more pressing problem for legal ethics is the lack of respect by lawyers for the bounds of the law, defined in any sensible way.
Nothing is more familiar than the charges that lawyers are a rather sleazy lot. This criticism comes in a variety of forms, from op-ed pieces in the newspaper, to campaign speeches by politicians, to endlessly repeated lawyer jokes. Beyond that, it is probably a rare lawyer or law student who has not been harangued by an acquaintance at a party or by a seatmate on a long flight about the legal profession. Criticism of lawyers encompasses a bewildering variety of themes: greed, including the closely related theme of overcharging clients; serving the fat cats at the expense of the little guy; preying on the misfortunes of others; being prone to lying and cheating on behalf of clients, and also to sometimes lie to clients; hyper-aggressiveness in litigation, or clogging up the legal system with frivolous disputes; being a drag on productive activities— writ small this is the familiar criticism that lawyers are deal-breakers; writ large it is the lament that lawyers impose costs on productive activities, rather than producing anything of value themselves; and of course the familiar claim (which many lawyers would cheerfully concede) that criminal defense lawyers help guilty people escape punishment, sometimes by obfuscating the truth at trial, other times by taking advantage of procedural technicalities to secure acquittals. To sum it up neatly, the public seems to believe that “the lawyer’s skill is the instrument by which justice is defeated; or, if justice prevails, it is because of a lawyer’s craftiness rather than for a respectable reason.
Lawyers often use the term “legal ethics” to refer to the rules of professional conduct promulgated and enforced by public institutions. Philosophers would be baffled to hear lawyers say things like, “That may be unethical, but it isn’t wrong.” That phraseology can be explained, however, by the use of the term ethics to denote the rules of professional conduct under which lawyers practice. In the United States, the highest court in each state has the inherent authority to regulate the practice of law within the territorial jurisdiction of the state; these courts issue rules governing matters like fees, advertising, conflicts of interest, and confidentiality. These rules in turn are enforced by some kind of administrative agency, often loosely referred to as the bar association of State X. Lawyers are also regulated by the generally applicable law of agency, torts, contracts, evidence, procedure, criminal and constitutional law, and, if applicable, specialized law such as tax and securities regulation. Taken together, the entire law governing lawyers is sometimes also called legal ethics, particularly in the United States where instruction in “the history, goals, structure, values, rules, and responsibilities of the legal profession and its members” is mandatory in nationally accredited law schools.
Principle of Partisanship
The lawyer must act out of exclusive concern with the legal interests of clients. She is permitted to disregard the interests of affected third parties and the public interest, if it would be in the client’s interests to do so, and if the law permits the violation in question of the third party or public interest. Although the lawyer may counsel the client that disregarding the interests of another is morally wrong, if the client insists on taking the action (and again, if it is legally permitted), the lawyer is obligated either to do it, or to withdraw from representing the client if withdrawal can be accomplished without prejudicing the client’s interests.
Principle of Neutrality
Nor may the lawyer let her own moral convictions stand in the way of doing something that she otherwise would regard as wrong, if the client instructs her to do so. Ordinary moral values are excluded from the lawyer’s practical reasoning and from the retrospective evaluation, by the lawyer herself or by others, of the lawyer’s actions. Citizens should not be denied entitlements secured by the legal system solely because a lawyer finds that person’s objectives unjust. The lawyer may—and indeed, in many cases must— refuse to pursue an objective that is unlawful, but may make this judgment on the basis of considerations internal to the law, not extra-legal moral reasons.
Principle of Nonaccountability
The third principle is not really a prescription for lawyers to follow, but a rule of inference that third-party observers should respect. The Principle of Nonaccountability means that, as long as the lawyer acts within the law, her actions may not be evaluated in ordinary moral terms.40 People should not call lawyers sleazy just because they represent sleazy clients, or do nasty things on behalf of clients. An observer evaluating the actions of lawyers representing clients should be limited to approving or disapproving the lawyers’ actions as a matter of lawyering craft. It is impermissible to step outside the practice of lawyering, and appeal to standards that are not part of the professional normative domain.
The Changing Meaning of Marriage
Out of the radical and reform movements of the 1960s and 1970s, and the changes in social norms that accompanied those movements, came a transformation in the legal significance of marriage. The constitutional principles of equality and liberty toppled ancient rules about families that were based on hierarchy and conformity. The seeds of valuing all families were planted.
When the movement for gay and lesbian rights and liberation emerged during that time, marriage was considered part of the problem, not part of the solution. Marriage was a problem because it regulated the lives of men and women along gender lines—both within and outside of marriage—and because it policed the boundary between acceptable and unacceptable sexual expression. By themselves, the small number of those willing to live openly, proudly, even defiantly as gay men and lesbians could have made little headway against this institution that sought to channel them into, and keep them within, acceptable heterosexual norms.
But they didn’t have to do it themselves. They had heterosexuals who were increasingly open about rejecting the sexuality-channeling function of marriage, and they had feminism. Feminism had the support and the momentum to demand an end to the limits on women’s life choices attributable to the expectations of women’s roles within marriage. For many women, these demands included the right not to marry. The contemporary movement for the rights of lesbian, gay, bisexual, and transgender people owes a great debt to the feminist movement of the 1960s and early 1970s, including its critique of marriage and the family.
In an astonishingly short period of time, feminist agitation and the social and cultural changes of this era produced a seismic trans formation of the law of marriage. The old set of laws punished sex outside of marriage, imposed catastrophic consequences for bearing children outside of marriage, assumed and fostered “separate spheres” for men and women, and denied the ability to exit a marriage except under penalty. These laws had endured for hundreds of years. In less than a decade, a completely revised set of laws emerged. The new laws discarded the gender script, made entry into marriage more optional, and made exit from marriage more ordinary. In doing so, they made marriage a different institution and opened avenues for recognition of new family forms, including those of gay men and lesbians.
The first changes to the legally prescribed roles of husband and wife occurred in the mid-nineteenth century with the passage of the Married Women’s Property Acts. These laws at first permitted women to keep property they owned at the time of the marriage. Later, after feminist advocacy, the laws were expanded to allow married women to enter into contracts and to control money they earned, although this change did not occur in some states until well into the twentieth century. Some legislators who resisted these changes as against God’s law declared them certain to lead to adultery and divorce.
Surprisingly little had changed since the nineteenth-century Married Women’s Property Acts. Although women gained the right to vote in 1920, they could still be excused from jury service solely because they were considered “the center of home and family life.” In 1966 the U.S. Supreme Court upheld a Texas law that allowed a wife to avoid repaying a loan from the Small Business Administration because she had not received court permission to sign the note as required of married women under state law. Married women could still be required to use their husband’s surnames, and, for the most part, a wife’s legal residence followed that of her husband, affecting her ability to vote, hold public office, receive government benefits, qualify for free or reduced college tuition, serve on a jury, pay taxes, or probate a will.
Giving the husband the right to determine the couple’s legal residence meant also that if he moved and the wife refused to move with him, she would be guilty of desertion and could be divorced based on her fault. An Arizona court writing in 1953 upheld the husband’s right to decide where the couple lived, because he had the duty of financial support and “there can be no decision by majority rule as to where the family home shall be maintained.”
The right of a wife to support—what she got in exchange for ac ceding to the husband as the head of the household—was not a right she could enforce during a marriage. In a 1953 Nebraska case, the wife asked a court to order her husband to pay for indoor plumbing, a new furnace, and money she could use for clothing, furniture, and other expenses. She testified that her husband had not given her any money for four years, that he would not allow any charge accounts, and that he did not permit her to make any long-distance telephone calls. The trial judge ordered the husband to buy some items and to provide a monthly allowance to his wife. The state supreme court reversed that decision, holding that a wife could proceed against her husband for support only if they were separated. “As long as the home is maintained,” the court wrote, “it may be said that the husband is legally supporting his wife.”
Gendered roles within marriage had always affected women’s opportunities in public life. Until 1963, it was legal to pay women less than men for doing the same job. That year, the Presidential Commission on the Status of Women spearheaded passage of a federal law guaranteeing equal pay for men and women. The following year, Congress enacted the Civil Rights Act, with Title VII prohibiting discrimination in hiring, promotion, and other areas of employment on the basis of sex as well as race. Even after the mandate of equal opportunity for women, employers were slow to change their practices; into the early 1970s, newspapers routinely divided job advertisements into “Help Wanted: Male” and “Help Wanted: Female.”
The Divorce Revolutions
Until the 1960s, social and legal consequences of nonmarital birth demonstrated strong condemnation of sex outside marriage. Pregnancy and childbirth were hard-to-avoid consequences of sex, as abortion was illegal and effective contraception was either illegal or difficult to obtain. Teenage pregnancy rates peaked in the 1950s, but half of those pregnancies resulted in shotgun weddings, pressed by the woman’s family to preserve a daughter’s honor and avert shame and disgrace. Of those who did not marry, over twenty-five thousand a year were sent to more than two hundred “unwed mother” homes where they gave birth secretly and almost always relinquished their children for adoption. Women who gave birth and kept their children, including the black women who were excluded from most of the unwed-mother homes, faced harsh state policies, including eviction from public housing and denial of public assistance. Doctors sometimes sterilized them without their knowledge or consent.
The cultural changes that accompanied the social and political movements of the 1960s included a revolution in sexual mores. The birth control pill, introduced in 1960, for the first time provided women a reliable means of being sexually active and avoiding pregnancy. “Make love, not war” was a refrain for a generation that questioned the authority of its elders. A sexual double standard lingered for women and men, but this was decried by second-wave feminism. The groundbreaking studies of sexuality researchers William Masters and Virginia Johnson identified women’s sources of sexual satisfaction, demonstrating, among other things, that women could achieve sexual fulfillment without men. As hostility to nonmarital sex decreased, legal doctrine reflecting condemnation of such sex became less tenable.
Demand for divorce also increased. U.S. courts had granted divorces since the late eighteenth century, but only on specified grounds requiring that one party be at “fault.” The idea behind fault-based divorce was that divorce should be the exception, not the rule, and should be available at the option of the “innocent” party only.
One spouse’s fault not only gave the other grounds for divorce, it also to a large extent determined the consequences of divorce. Adultery was a ground for divorce everywhere. Although in the mid twentieth century a “tender years presumption” meant that mothers of young children would be awarded custody if there was a divorce, this only held true if they were without fault. Sex outside marriage rendered a mother “unfit” and cost her not only her marriage but her children as well. A woman’s fault also relieved her husband of any obligation to support her. Even though a divorced woman could keep property she owned in her own name or had purchased with her own money, the rigid gender roles assigned husbands and wives made it unlikely that she had such assets. With no access to property in her husband’s name, no entitlement to spousal support or child custody if she committed marital fault, and limited options for economic self-sufficiency in a marketplace rampant with sex discrimination, the consequences of extramarital sex for a woman were severe.
By the 1960s, social practice was out of step with divorce law. Cohabitation became more accepted and more common as “desertion” occurred, and without divorce there could be no remarriage. The divorce rate rose, in part due to liberal divorce laws in Nevada and in other countries, where the wealthy could travel to dissolve their unions. Many couples who wanted to end their marriages manufactured grounds—such as physical cruelty or adultery—to get divorced. This was particularly rampant in New York, where adultery remained the only ground for divorce until 1966.
Legal Transformations Involving Marriage and Family
The law reform strategy of liberal feminists achieved extraordinary success in a series of cases in the 1970s. The first Supreme Court case to strike down a distinction between men and women as unconstitutional arose out of an Idaho statute that presumed men more capable than women of administering the estate of a person who died without a will. When a child named Richard Reed died, his mother and father, who were separated, each sought to administer his estate. The judge appointed Richard’s father. The Idaho Supreme Court held that “nature itself” created the distinction between men and women and the legislature could conclude that in general men were better qualified than women to administer estates. When this case reached the U.S. Supreme Court in 1971, the Court ruled for the first time that a sex-based statute was “arbitrary” in a way that violated the equal protection clause. The Court required the judge to hold a hearing to determine who was better suited to administer the estate.
This case was not about “family law” narrowly defined as the obligations of a husband and wife toward one another. But the law at issue was the explicit product of the gendered view of men and women under the doctrine of coverture. Writing the brief for Sally Reed, future Supreme Court Justice Ruth Bader Ginsburg protested the “subordination of women” inherent in preferring men without regard to the ability of the applicants.
Reed v. Reed, decided as the demands of second-wave feminism became audible across the country, signaled the beginning of the end of legalized, formal inequality between women and men. Notably, most of the cases in the decade following concerned either sex-based classifications in family law or notions of gender with their origins in the laws of coverture. For example, two years later, the Supreme Court declared unconstitutional a law that extended benefits to married male members of the armed forces but gave those benefits to a married female service member only if she could prove that her husband depended on her for more than one-half of his support.
The scheme dated back to the 1940s and 1950s and reflected the legal reality that a husband was obliged to support his wife and the corresponding factual reality, as found by the trial court that heard the case, that husbands were typically breadwinners and wives typically dependent.
The government argued in favor of retaining the distinction between men and women because of “administrative convenience.” It said that because most wives were dependent on their husbands, it was cheaper and easier to presume dependence and automatically award the benefits. But because few husbands were dependent on their wives, it was appropriate to require proof of the husband’s dependence before spending government funds. The Supreme Court eliminated the sex discrimination by allowing all married service members additional benefits.
In 1975 the Supreme Court heard the case of Stephen Wiesenfeld, whose wife, Paula, had died in childbirth. Their child was entitled to receive Social Security survivors’ benefits as a result of Paula’s death, but Stephen was not; a surviving mother could receive benefits after the father’s death, but a surviving father could not receive benefits after the mother’s death. This sex-based classification had been included in amendments to Social Security enacted in 1939 when it was a “generally accepted presumption that a man is responsible for the support of his wife and children.” The Court found that the purpose of the benefit was to allow women to forgo paid employment and stay home with their children. By focusing on the interest in providing a child with a stay-at-home parent after the other parent died, the Supreme Court concluded that it was irrational, and therefore unconstitutional, to provide the benefit only to surviving mothers. In 1977 the Supreme Court found sex discrimination in another Social Security regulation, this one providing survivors’ benefits to all elderly widows, but to elderly widowers only if they had been receiving more than one-half of their support from their wives.
Some Supreme Court cases decided in the decade after Reed lay within the realm of family law. In a Utah case, the law eliminated a parent’s obligation to support his daughter at eighteen, and his son at twenty-one. The state supreme court upheld the law based on the belief that “the man’s primary responsibility is to provide a home and its essentials for the family,” and the extra education or training enabled by the requirement of parental support until twenty-one would facilitate that. The U.S. Supreme Court reversed. In 1979, the Court invalidated the sex-based classification in an alimony statute that denied husbands the opportunity to get alimony from their wives, and in 1981 it invalidated a Louisiana law that made the husband the “head and master” of the household and thus gave him the power to dispose of all community property without his wife’s consent.
These cases made progress in achieving formal equality through elimination of sex-based classifications. Although the law today does allow some sex-based distinctions, it permits none of the distinctions once linked to the gendered nature of marriage. As a result of the Supreme Court decisions, all benefits and obligations once tied to the legally mandated dependency of women upon their husbands have been eliminated or expanded to include both spouses. Both have a right to request alimony; both have the right to manage community property; both are entitled to survivors’ benefits under Social Security and workers’ compensation laws.
Feminist efforts resulted in gender neutrality superimposed on a set of laws grounded in the gendered nature of marriage. The resulting regime singles out marriage for special treatment, but only as a byproduct of the remedy for ending gender inequality, not as a reasoned conclusion that marriage entitles people to special treatment that other relationships cannot claim. In other words, the special treatment accorded marriage in family law, Social Security, employee benefits, and other critical areas masks the original purpose of those areas of law.
Alimony is a good example. Alimony enforced a husband’s obligation to provide lifelong support to his wife. He had to assume this obligation at marriage because she lost the ability to support herself. He could be relieved of this obligation only if she died or, in the rare circumstance of divorce, if she married another man who assumed responsibility for her support. Feminist success in achieving formal equality eliminated the gender component, and now, where appropriate, either a husband or wife may seek alimony, even though neither spouse loses the ability to support himself or herself when marrying and easy divorce means that whatever obligations spouses have toward one another are not inherently lifelong.
Formal equality for women made alimony gender-neutral, but did not detach it from marriage. Yet the justifications for alimony today are completely different from those of the earlier, gendered era. Contemporary justification for ongoing support after a relationship dissolves rests on the economic consequences of one person forgoing individual financial stability while making uncompensated contributions to a family. This may occur whether the couple is married or not married, and there is no principled basis for restricting support awards today only to husbands and wives.
The long-standing social stigma of illegitimacy was accompanied by harsh legal consequences. The law permitted and endorsed discrimination against children born outside marriage as a means of expressing condemnation of nonmarital sex. For centuries such children were fillius nullius, the child of no one, meaning they had no legally recognized relationship with, including no right to support from, their mother or father.
In Stanley v. Illinois, Peter Stanley challenged an Illinois law that automatically made his children wards of the state when their mother died. The state would not have stepped in if he and their mother had been married. The Court ruled that the state could not presume Stanley unfit simply because he was never married to the children’s mother, with whom he had lived intermittently for eighteen years. Stanley had a constitutional right to raise his children; marriage was irrelevant. With this case, the Court overturned centuries of law that created a father-child relationship only for a man married to a child’s mother. The next year the Court ruled that children’s right to support payments from their father could not turn on whether their father had been married to their mother.
A 1973 decision limited the government’s ability to deny benefits to households with unmarried parents. New Jersey Welfare Rights Organization v. Cahill challenged a New Jersey program that extended benefits to financially needy households consisting of “two adults of the opposite sex ceremonially married to each other” who also had at least one biological or jointly adopted child, or one child born to one spouse and adopted by the other.
The trial court ruled in favor of the state. It determined that the state could favor married families because such families provided norms, preventing a breakdown in social control. The court described marriage as a “permanent, or at least semi-permanent institution.” It noted that “a living arrangement which does not have the aura of permanence that is concomitant with a ceremonial marriage, often does not provide the stability necessary for the instillment of those norms with the individual necessary for proper behavior.” It concluded that it was proper for the state to refuse to subsidize a living unit that violated its laws against fornication and adultery and that New Jersey could use its program to discourage immorality and illegitimacy. According to the trial court, the program did not unconstitutionally discriminate against nonmarital children, because their parents could cure the problem by getting married, and this was a proper incentive for the state to offer.
The Supreme Court reversed the lower court. It found “no doubt that the benefits extended under the challenged program are as indispensable to the health and well-being of illegitimate children as to those who are legitimate.” Therefore the program violated the equal protection rights of nonmarital children. Justice Rehnquist was again the lone dissenter. He argued that the state could require marriage as an essential ingredient of a deserving family unit and said that, “the Constitution does not require that special financial assistance designed by the legislature to help poor families be extended to ‘communes’ as well.”
Marriage was no longer necessary to create legally recognized relationships with children. Marriage was no longer necessary to stave off moral judgments enforced by law. People could be sexually active and remain unmarried. The final seismic shift of this period transformed the law of divorce, enabling people who did marry to leave those marriages for reasons unheard of in previous centuries.
In 1964 the California legislature held hearings on the state’s divorce laws. Professor Herma Hill Kay, among others, testified about eliminating fault as the basis for divorce. Two years later, the governor appointed a Commission on the Family, and the commission’s report became the basis for the nation’s first pure no-fault divorce law, enacted in 1969. During this period, the National Conference of Commissioners on Uniform State Laws studied marriage and divorce law, culminating in a draft in 1970 of the Uniform Marriage and Divorce Act, which recommended no-fault divorce.
The impetus toward no-fault divorce did not come from the women’s movement. To the contrary, some men wanted a way out of marriage that removed the leverage that wives had over husbands who wanted divorces but could not get them without their wives’ collusion, obtained in return for generous financial packages. But once women began considering law reform from a feminist perspective, they supported a range of divorce-reform issues, including the grounds for divorce. New York NOW, for example, called for nofault divorce in 1971. Feminism turned the private and personal dissatisfaction that some women experienced in their marriages into a socially acceptable reason to leave a marriage to escape rigid sex roles and male domination. It also helped open the employment opportunities that made it financially feasible for women to live independently from men. These accomplishments were consistent with new laws approving easy exit from marriage.
No-fault divorce brought with it new thinking about the role of fault in determining child custody. The rule that a parent who has sex outside marriage was automatically unfit to have custody was out of step with increased acceptance of nonmarital sex. Responding to changing sexual mores, when the drafters of the Uniform Marriage and Divorce Act considered a model statute on child custody, they included the provision that “the court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” This constituted a rejection of the rule automatically linking sex outside marriage to unfitness. While it is unlikely the drafters had lesbian and gay parents in mind, the idea that parents’ sexual behavior should not automatically keep them from having custody was an enormous boon to those who would soon advocate that lesbian mothers leaving marriages should be able to keep custody of their children. Combined with the removal of homosexuality from the American Psychiatric Association’s list of mental disorders in 1973, this became the backbone of the legal strategy in support of lesbian mothers.
The Family Redefined
Looked at together, these changes in the law of gender, sex, relationships, households, and families were adjustments to the dramatic social changes and political demands of the 1960s and early 1970s. Some of these developments, most notably in divorce laws, occurred through enactment of new statutes, reflecting a political consensus to conform law to modern life. As important, however, is the role that the Supreme Court played in constraining both federal and state legislators unwilling to adapt to a society in which people organized their lives less and less around marriage.
The Financial Consequences of Splitting Up
The plaintiffs in marriage-equality cases do not say that they want to marry so that if they split up the property division and support rules that accompany divorce will apply to them. Like all couples who plan to marry, they do not expect to divorce. But the different rules for settling money issues at the end of a marriage versus an unmarried relationship can cause indefensible hardship.
Until the changes in divorce laws in the 1970s, the forty-two “common law” property states did not treat the end of a marriage as an event needing specific rules for determining who got what property. The person whose name appeared on the title to land or the bank account kept it. Untitled property belonged to the spouse who paid for it. Obviously, this meant the husband owned most of the property during the marriage and kept it when the marriage ended.
For example, in a 1974 case at the end of a twenty-two-year marriage, a wife who had no outside employment for the first ten years while she cared for the children, and who kept homemaking even when she had paid employment, received her personal items and her car. Her husband kept a 265-acre farm, the family home, machinery, and livestock. The court said the result was “harsh” but required by the law.2 With no-fault divorces and many more marriages ending in divorce, courts and legislatures in common law property states came to see the outcomes as unfair because they failed to take into account noneconomic contributions to the household. They established new laws allowing judges to transfer title to property—something that would have shocked our ancestors—to achieve a result that was “equitable.”
The law governing the end of unmarried relationships has not caught up with the times. Traditionally, the law would not even enforce deals in which a man agreed to provide for a woman with whom he “cohabited.” The law considered such arrangements no different from prostitution. When the California Supreme Court ruled in 1976 that actor Lee Marvin could be required to support Michelle Triola Marvin if he had agreed to do so, it heralded a more modern treatment of unmarried couples.
Unfortunately, Marvin v. Marvin proved to be an end point, rather than the beginning of a more appropriate legal treatment of all families. Law books are filled with decisions denying assets and support to “stay-at-home moms” who lived with male partners, raised children, and got nothing when those relationships ended. Some were together for decades. All they had available to them when their relationships ended was the opportunity to prove a contract with their former partner or financial contributions to the former partner’s property. Their status as a partner who devoted years to home and family counted for nothing.
In fact, Michelle Triola received nothing. She was unable to prove a contract with Marvin, and the court refused to approve an award of temporary support based solely on the equities of their situation. Contracts are hard to prove. In a 2006 case at the end of a thirteen year lesbian relationship, Harriet argued for compensation based on her partner Sara’s pension, which was valued at close to $250,000 for the period the couple was together. The judge ruled against her, finding that Sara had not agreed to share her pension if their relationship ended. Even when couples have agreements, a few states still adhere to the pre-Marvin rule and refuse to enforce them.
The vast increase in the number of unmarried couples living together prompted the American Law Institute to include “domestic partners” in its Principles of the Law of Family Dissolution. If a cou ple meets the criteria for domestic partners, then the rules governing the financial consequences of their dissolution are the same as those applied to married couples, unless they make an agreement to the contrary. The authors, including law professor Grace Blumberg, base this doctrine on “the familiar principle that legal rights and obligations may arise from the conduct of the parties with respect to one another, even though they have created no formal document or agreement setting forth such an undertaking.”
The ALI principles define as domestic partners two individuals who are “not married to one another, who for a significant period of time share a primary residence and a life together as a couple.” They presume that a couple who lives together for three years meets this test. If they have a child, they meet it after two years.
The principles list thirteen factors relevant to determining whether two people “share a life together as a couple.” They include written and oral statements and promises made to one another about the relationship; statements to others and the couple’s reputation in the community as a couple; commingling of finances; economic interdependence, or dependence of one person on the other; assumption by the parties of specialized or collaborative roles; changes in the life of either or both as a result of the relationship; naming of each other as financial beneficiaries or in documents, such as wills; participation in a commitment ceremony or partnership registration; jointly raising a child; and the parties’ emotional or physical intimacy.
Marital and Separate Property
Utah like most states differentiate between “marital property” and “separate property.” Separate property is owned before marriage or acquired through gift or inheritance. When people divorce, most states divide only marital property. Some allow a judge to divide separate property to avoid an unfair result. Still others consider all property either party owns up for grabs.
Certainly a divorcing spouse with inherited wealth might be surprised to learn that his spouse could get a share of it, especially if his brother, who lives in a different state, was able to shield his inheritance during his divorce because it was separate property. He might say he never thought marriage would give his wife a claim on his inherited wealth. The wife might also have assumed she had no claim on those assets until she consulted a lawyer. The law is set to establish a norm for all regardless of what they think or intend.
Even marital property rules differ from state to state. Some statutes require a fifty-fifty division. Some presume a fifty-fifty division but let a judge rule otherwise. Some instruct a judge simply to do what is “just” or “fair” or “equitable.” Some states consider why the marriage ended; some think that’s irrelevant.
Spouses don’t know when they marry whether their sexual infidelity or other marital “fault” could have economic consequences when they divorce. They couldn’t. The law on that also differs from state to state. An unfaithful wife will be barred from alimony in North Carolina but not in New Jersey. An unfaithful husband may have to “pay” for his transgression in North Carolina but not in Delaware. In some states a divorced spouse cannot receive alimony unless he cannot support himself.
Family law gives divorce courts three (and only three) financial tools: child support, property distribution, and alimony. While child support orders are commonly entered at the time of divorce, their focus is not the spouses’ responsibility to each other, but rather their responsibility to common children. The distribution of marital property is a more appropriate tool for imposing divorce consequences, but its usefulness is limited by the fact that while most divorcing couples have the ability to produce future income, they have few existing assets. Alimony is thus often the only available tool for addressing the financial consequences of a divorce. To be sure, alimony is not always a practical tool. When spouses have barely enough income to keep one of them out of poverty, an alimony award is useless. But in very many middle and upper-class marriages, alimony is an important tool for ensuring that the long-term costs of marital roles do not fall exclusively on family caregivers.
Alimony is complex—more complex than Alimony Nightmares or popular fiction can fully convey. Alimony is a mirror of American culture, a reflection of changing views of women, of marriage, and of personal commitment. Its history is a richly layered account of the tension between individual and collective responsibility for dependency, of aspirational reform surprised by the intractability of gender-driven roles and the cruel judgment of well-intentioned dreamers. Alimony is a tale of notoriety and hype, of risk and high stakes, of the danger of myth and the powerful symbolism of money. It is at once a grand narrative of the evolution of law, and a personal story of an intimate relationship—a story of betrayal, desperation, and bravado, of investment, regret, and freedom to start over, a story of self-sacrifice aging into lost opportunity and financial responsibility hardening into involuntary servitude. And it is a tale without a grand finale, a still evolving story of what is sometimes cast as the lone holdout in family law’s dramatic progression from coverture to partnership marriage.
Divorce and Pension
No-fault divorce rested on a “clean-break” principle that influenced alimony and property distribution. Divorcing spouses were supposed to get on with their lives, as best they could. Yet, even during a short marriage, one spouse sometimes greatly enhances his earning power, while the other drastically reduces hers by staying home with the children. Earning power is often the most valuable asset of the marriage. If so, then it is unfair to confine the distribution to traditional property, and without taking future earnings into account. Hence, modern divorce law has begun to focus on “new property”—things that can’t be touched or held, but nonetheless have economic value: pensions, business goodwill, professional licenses, and professional degrees. An experienced Riverton Utah family lawyer can advise you on how you can protect your earnings in case of a divorce.
Divorce lawyers vary in their understandings of professionalism in divorce practice. Some of these differences are shaped by the nature of their practices. Some derive from individual variations in character and values, while others are rooted in gender roles, age, and experience, and still others in the organization of their law firms. Specialists often understand their roles in divorce cases differently than do general practice lawyers. Unlike sole practitioners who do divorce work, lawyers employed by law firms face demands to be attentive to the interests of partners and to firm policies. Attorneys whose clients have few resources find themselves pressed to structure and limit their time in ways that lawyers with well-to-do clients do not.
Riverton Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Riverton Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. We can help you with divorce, child custody, child support, alimony, prenups, postnups, annulments, adoptions, guardianships, conservatorships, and much more. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506