The American Law Institute's Principles of the Law of Family Dissolution

We have recently had several inquiries about the A.L.I. Principles. Here is some background on what they are and aren't.

The American Law Institute generally produces "Restatements" of what the law actually is. They comprehensively cover broad subjects such as Torts, Contracts etc. They are used in academia, and also by lawyers and judges trying to fill in the blanks on technical points that have not been decided in their own state's case law. In such situations, courts will occasionally "adopt the Restatement view" of a particular point of law.

It is rare, though not unheard-of, for the A.L.I. to instead make proposals for change in existing laws, especially on such basic subjects as Family Law. It is because they do so that the Principles are called Principles rather than a Restatement.

A.L.I. does not claim that the result reflects any kind of consensus within the family law field, in academia, or anywhere else. In family law circles I have not seen any sense that the Principles are headed for swift adoption, except that the provisions on domestic partners are beginning to influence some courts. The Principles cover broad stretches of law; few people have the breadth or depth of expertise to critique all of them.

The A.L.I. Principles are not all that new. They took shape during the 1990s, were approved in their final form in May, 2000, and were published in May of 2002. The Principles cover seven broad and important areas of family law, but they do not address some key areas of family law, such as the rules for entering and exiting marriage.

Because of their timing, and their chosen scope, the Principles do not address some of the important new family law issues that have arisen in recent years, such as:
- Marriage preparation and education programs. Recognition of the need for them, their effectiveness, and their availability has taken off in the last few years. Some states have passed laws encouraging them as part of the marriage licensing process.

- The landmark Troxell case from the U.S. Supreme Court, which affirmed the unique roles and rights of natural parents over those of third parties.

- Dr. Judith Wallerstein's latest work on how divorce affects children, and its widely-noted implication that children should be more involved in some aspects of visitation decisions.

- Procedural family court reforms to prevent and manage high-conflict divorces, which have been launched in some states and endorsed by the American Bar Association and the Association of Family and Conciliation Courts.

- Divorce law reform, including covenant marriage, which has passed in three states and raises questions about how other states would treat a covenant marriage in their divorce courts.

There is one part of the Principles, however, that is related to divorce reform. It says couples cannot make their own agreements choosing different rules on the availability and conditions of divorce from what state law provides. It says "the parties are not competent authorities to override" decisions legislators presumably have made about whether courts should spend their time on questions of fault in divorce. However, it explicitly declines to comment on laws giving people choices between specific sets of divorce rules, such as Covenant Marriage.

Probably the most controversial and unprecedented part of the Principles is their section on Domestic Partnerships, which define when a couple becomes a Domestic Partnership and then grants certain property and alimony rights when the couple breaks up. Unlike marriage, Domestic Partner status can be imposed retroactively on a couple by the state, even if the couple never made a conscious choice to have this new set of financial rules apply to them.

A broad theme of the Principles is replacing individualized justice, and judges' discretion, with predictable rules so people will know what a court would do without actually litigating. If we looked more closely at the ALI's myriad reforms we'd probably find some of them helpful, while others would go too far to sacrifice justice and children's welfare to predictability. True, unpredictability is one of the things that makes divorce so expensive, inefficient and acrimonious. But some unpleasant things can't be cured without sacrificing important values. If you have to take such bold steps as abandoning the politically sacred "best interest of the child" standard in order to make divorce better, maybe you should concede that the chances of making it a lot better are not too bright. It may more productive to try to reduce family breakdown than to improve it.

If we look to the A.L.I. Principles to be the answer to all America's discontents with family law, we will be disappointed. Although they make a great, creative effort to adapt to the social status quo, they beg the hard questions about whether that status quo of widespread divorce and unwed parenthood is ultimately sustainable for most families. They respond to popular dissatisfaction with the results of divorce by redistributing the resources that people fight over. But for most divorcing families, there is simply not enough money, and not enough of the children's time, to satisfy anyone.