Chastain, Randall M

Inkler, Monroe L

Katz, Sanford N.

Miller, Frances H

Weyrauch, Walter O

English

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45 Landmark Decisions: Four Experts Look at the Most Significant Cases Handed Down during the Last Two Decades

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Boston College Law SchoolDigital Commons @ Boston College Law SchoolBoston College Law School Faculty PapersJuly 198245 Landmark Decisions: Four Experts Look at theMost Significant Cases Handed Down during theLast Two DecadesSanford N. KatzBoston College Law School, katzs@bc.eduMonroe L. InklerFrances H. MillerWalter O. WeyrauchRandall M. ChastainFollow this and additional works at: https://lawdigitalcommons.bc.edu/lsfpPart of the Contracts Commons, Family Law Commons, and the Juvenile Law CommonsThis Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in BostonCollege Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, pleasecontact nick.szydlowski@bc.edu.Recommended CitationSanford N. Katz, Monroe L. Inkler, Frances H. Miller, Walter O. Weyrauch, and Randall M. Chastain. "45 Landmark Decisions: FourExperts Look at the Most Significant Cases Handed Down during the Last Two Decades." Family Advocate 5, (1982): 32-39.The Revolution in Family Law45LandmarkDecisionsFour Experts Lookat the Most SignificantCases Handed DownDuring the LastTwo DecadesEditor's Note: Family Advocate asked four family lawspecialists to name the decisions that they feel have hadthe most impact on family law. Contributing to this list ofcases (beginning on next page) are: Monroe L. Inker, aBoston attorney; Sanford N. Katz, professor at BostonCollege Law School; Frances H. Miller, professor atBoston University School of Law; and Walter Weyrauch,professor at the University of Florida College of Law inGainesville. The introduction, which discusses majorfamily law developments, is by Randall M. Chastain,professor at the University of South Carolina.Liberal divorce reform, like most major social legisla-tion, did not herald the coming of social changes, butreflected views that already existed. The interplay offorces seeking liberal or conservative divorce laws hasbeen with us for years. The result, however, has not beena continuous, if gradual, movement toward more liberalapproaches, but rather an up-and-down movement.In 1849, for example, Connecticut passed a divorce lawthat permitted divorce for "any such misconduct as per-manently destroys the happiness of the petitioner anddefeats the purpose of the marriage relation." (PublicAct 1849.17) Despite its reference to "misconduct," thiswas essentially a unilateral divorce statute since thenature of misconduct is made dependent upon thedestruction of the petitioner's happiness and defeatingthe purpose of the marriage relation. The divorce rate inConnecticut rose so dramatically after the statute waspassed that it was repealed in 1878.The debate over what should constitute justifiable rea-sons for dissolving a marriage raged with vigor betweenthe end of the Civil War and the beginning of World War32John Neubauer33II. Legislatures tended to remain on the conservative side, ferent than when Chester G. Vernier surveyed the coun-reversing a trend toward liberalization that had existed try's divorce laws in 1931. At that time, every jurisdictionbefore the Civil War. But by the late 1940s, the country that permitted divorce-all American jurisdictions ex-had begun a process of social rethinking that continues to cept South Carolina-recognized adultery as a groundthis day. for divorce. Not one jurisdiction directly recognized a no-NO-FAULT DIVORCE fault ground.Then it was time for the pendulum to swing back toIn the 1950s, however, the laws were not much dif- more liberal approaches to divorce access. And by 1969,34the California legislature passed a law permitting dissolu-tion of marriage simply on the basis of irreconcilable dif-ferences. (See Cal. Civil Code § 4506 (w. 1970.) This en-actment both legitimized and energized the already ex-isting movement toward change, and was probably thesingle event in no-fault divorce.By August 1980, Illinois and South Dakota were theonly two states that still limited divorce to traditional"fault" grounds. And today, California has gone so faras to allow divorce to be granted by affidavit under somecircumstances.EQUITABLE DISTRIBUTION INCOMMON LAW STATESAs of 1981, Mississippi, Virginia, and West Virginiawere the only three states that could be definitely cate-35gorized as "title" states in which their courts have nopower to distribute property upon divorce unless one ofthe traditional equitable trust doctrines can be applied, orunless the property was jointly titled to begin with. Whilethere is some question about the exact extent and reach ofnotions of equitable distribution of property to eitherspouse regardless of how it is titled, the bulk of the com-mon law states have joined the eight community propertystates in at least considering the notion of marriage aspartnership.In Wirth v. Wirth, 326 N.Y.S. 2d 308 (App. Div. 1971),for example, the court refused to be "set in motion" byallegations that a husband lived solely off his wife's earn-ings for more than ten years after representing to her thathe was going to invest his earnings "for the two of them"for their "latter days," and then claimed title to all thesavings as well as the rest of the property. The court notedthat it might be possible to make a moral judgment re-garding the husband's representations, activities, andclaims, but was willing to do more than that.But in 1980, New York passed a comprehensive equi-table distribution statute. A memorandum that accom-panied the revising act establishing equitable distributionincluded the following:36This legislation proposes the adoption of law to cur-rent social values. It is hoped it will serve to bringNew York law into today's reality which will servethe best interests of the family.This indicates the shift in attitude in which marriage is nolonger viewed as a joining together of a provider andhomemaker. "Current social values" demand that mar-riage be treated as something of a business, which is com-mensurate with the attitude that it ought to be dissolvablewhen either party is dissatisfied with any aspect of it.Because of this ready acceptance of dissolution and theeasing of the way for it financially, the increase of divorceis likely to continue. This in turn will put pressure onfamily lawyers and family courts to process cases throughthe system in a prompt, efficient, and yet morally andemotionally satisfactory fashion.RECOGNITION OF TAX CONSEQUENCESOF DIVORCE AND SETTLEMENTSIf lawyers do not specialize in tax law or family law,they may overlook the potential tax effects of supportmonies characterized as alimony and child support, and37of property distributions characterized as division of pre-viously owned property, support, or as property ex-changed for release of marital rights. Because many thou-sands of dollars in federal and state taxes can ride on thesedeterminations, the potential for malpractice liability isawesome.The need to consider tax consequences throughly wasillustrated in United States v. Davis, 370 U.S. 65 (1962)and Commissioner v. Lester, 366 U.S. 299 (1961).Although these decisions are 20 years old, their ramifica-tions have taken some time to penetrate the profession.Certainly tax consequences were important beforeDavis and Lester, which highlight the potentiallydevastating tax effects of an improperly planned divorce.But the radical tax increases that were needed to supportthe Second World War, which have remained on thescene, combined with the effects of inflation and thefailure to index the tax laws to inflation, have rendered in-come tax considerations more important than they werein the 1940s and 50s.CHILD CUSTODY AND SUPPORTRecent uniform acts such as the Uniform ReciprocalEnforcement of Support Act (URESA), its descendant,RURESA, and the Uniform Child Custody JurisdictionAct (UCCJA), and federal enactments such as theFederal Child Support Enforcement Program under theSocial Services Amendments of 1974 and the ParentalKidnapping Prevention Act of 1980, have in yet anotherway required the family lawyer to look beyond the nar-row confines of state statute and decisional law. Theyreflect a social determination that the "local" business ofchild custody, child support, and enforcement ofalimony decrees is a matter of nationwide concern.Within the last decade, there has been an increasedrealization that white-and blue-collar workers are not on-38ly capable of earning reasonable incomes, but can be ef-fectively traced by more efficient use of the mechanismsalready in place. Thus, their earnings can be used forlegitimate support purposes. Perhaps the single most ef-fective national legal reform in the last several years hasbeen the federal government's creation of the ParentLocator Service. This service allows properly identifiedcases to be handled with the assistance of federal data.INDEPENDENT LEGAL RIGHTS OF CHILDRENDuring the last 25 years, courts and psychologists haverecognized that legal infants-persons under the age of 18years old-have independent legal rights and can to someextent see them enforced in the court system. Althoughthere has been no clear consensus in this area, thedevelopments have indicated that the court system, aswell as the psychiatric and psychological professions, isaware of the need to evaluate children individually-notmerely as insensate ciphers in a system in which the realparticipants are adults.There is some tension between this concept and that offamilial privacy. The interplay between parental rightsand children's rights and the working out of the limits ofinteraction between family units and the legal structureprobably will be one of the principal areas of develop-ment in family law in the final two decades of the twen-tieth century.Domestic relations law has and will continue to becomemore complex largely because of an increased socialawareness of the consequences of legal decision makingin family matters. Moreover, the role of the law inregulating both family activity and the interaction of thefamily with society bodes to become ever-greater.Whether this is as it should be is something we will have todecide in our legislatures and courts over the next 25years. N39

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45 Landmark Decisions: Four Experts Look at the Most Significant Cases Handed Down during the Last Two Decades

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