Bix - The Oxford Introductions to U.S. Law

The Oxford Introductions to U.S. Law
Family Law

Family Law

BRIAN H. BIX

Oxford University Press is a department of the University of Oxford. It furthers the Universitys objective of excellence in research, scholarship, and education by publishing worldwide.

Oxford New York
Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid
Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto

With offices in
Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary
Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand
Turkey Ukraine Vietnam

Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.

Published in the United States of America by
Oxford University Press
198 Madison Avenue, New York, NY 10016

Oxford University Press 2013

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above.

You must not circulate this work in any other form
and you must impose this same condition on any acquirer.

Library of Congress Cataloging-in-Publication Data
Bix, Brian.
The Oxford introductions to U.S. law. Family law / Brian H. Bix.
p. cm.(Oxford introductions to U.S. law)
Includes bibliographical references and index.
ISBN 9780199989591 ((pbk.) : alk. paper)
1. Domestic relationsUnited States. I. Title. II. Title: Family law.
KF505.B59 2013
346.73015dc23

2012041150

9 8 7 6 5 4 3 2 1

Printed in the United States of America on acid-free paper

Note to Readers

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com

DENNIS PATTERSON HOLDS the chair in Legal Philosophy and Legal Theory at the European University Institute in Florence, Italy. He is also Board of Governors Professor of Law and Philosophy at Rutgers University School of Law, Camden, New Jersey, and Chair in Jurisprudence and International Trade at Swansea University, UK. Patterson is the author of Law and Truth (Oxford University Press 1996) and The New Global Trading Order with Ari Afilalo (2008). He is general editor of The Blackwell Companion to the Philosophy of Law and Legal Theory. He has published widely in commercial law, trade law, and legal philosophy.

BRIAN H. BIX is the Frederick W. Thomas Professor of Law and Philosophy at the University of Minnesota, where he teaches and writes in the areas of family law, jurisprudence, and contract law. He received his law degree from Harvard Law School and his doctorate from Oxford University. He is a member of the Bars of Minnesota, Massachusetts, and Connecticut, and a member of the prestigious American Law Institute. Professor Bix has published fifteen books and over one hundred articles; his work has been translated into eight languages.

A BOOK ABOUT family law is necessarily a book both about family life and the role law (and government generally) can and should take in regulating family life. Individually and together, these are vast topics, and the limits of both space and expertise mean that only a small part of what could be written on these topics will be discussed in this book.

This book aims to offer a critical introduction to family law, for the use of law students and scholars equally: offering not only an overview of the basic rules of American family law but also the history behind those rules and the principles underlying them. That is a large task, and there is no doubt that it can be done only very imperfectly in the space available. However, if the text succeeds in portraying even a portion of the richness and complexity of family law, it will have been worth doing.

An additional, and more specific, caveat: because American family law is primarily a matter of state law, the rules that govern inevitably vary from one jurisdiction to the next. This text does not purport exhaustively to detail every state-by-state variation, but rather to discuss the general principles that currently dominate legislation and case law in the area, and to mark any trends for change.

Also, American family law is ever-changing (and this is likely true of the family law for most countries in modern times). A significant number of important family law decisions and legislation came down just during the period in which this text was written (and, inevitably, many more will appear during the production process; books on this subject are doomed to be at least somewhat out of date the day they appear!).

Inevitably, this book will not discuss many issues that have some connection with family law (and covered in many family law courses). Among the excluded topics are many will and estate issues relating to families, abortion, the ethics of representation (including the ethics of collaborative law practice), the rights of gay and transgender individuals (beyond the same-sex marriage and parenting issues the book does discuss), family-related immigration and asylum issues, and many issues relating to procedure and representation in family law proceedings.

I am grateful for the help and support of Dennis Patterson, Dedi Felman, Lori Wood, and Jennifer Gong, and in general for all the assistance (and patience) of the editors and staff of Oxford University Press. I am also grateful to Barbara Ann Atwood, Beverly Balos, Karen Helfand Bix, Jill Hasday, Joel A. Nichols, and Robin West for their comments and suggestions, and for the research assistance of the University of Minnesota Law Library.

PART ONE
General Principles

ONE
The Principles of American Family Law

IN STUDYING OTHER areas of law, it is common to come across theories that purport to make sense of the whole field, or to offer guidance for reform across the entire doctrinal area. Thus, one sees theories of property, theories of tort law, theories of contract law, and so forth, in which an area of law is claimed to be entirely or primarily about corrective justice, autonomy, efficiency, or the like.