Toward a Unified Field Theory of the Family: The American Law Institute's Principles of the Law of Family Dissolution

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I. INTRODUCTION: THE CONSOLIDATION OF FAMILY LAW

The American Law Institute ("ALI") recently approved the Principles of the Law of Family Dissolution: Analysis and Recommendations (the "Family Dissolution Principles" or "Principles"), proposing a wide range of regulations for the legal termination of domestic unions.1 These standards and rules apply to traditional divorce actions between wives and husbands, as well as in proceedings stemming from the dissolution of nonmarital domestic partnerships. The task of bringing coherence and consistency to family law is truly daunting. Traditional domestic relations jurisprudence, confronted with the brisk pace of cultural and technological change, has resulted in such startling and uneven change to the legal landscape that the ALI's most well-known product, a Restatement, is unthinkable. It will prove difficult enough to agree whether the Principles have properly described the present shape and tendencies of the emerging

legal constructs in the field.2 This article provides an early assessment of the Principles' efforts both to reflect and reframe family dissolution law.

In several areas, the Principles summarize the majority view; in others, they craft a model statute.3 The Family Dissolution Principles thus constitute the latest embodiment of a recurring tension in the ALI between its aim to harmonize the diversity of extant laws and an equal focus on the "better adaptation [of the law] to social needs."4 These conflicts arise regularly over the concept of a Restatement.5 The Principles' "bold attempt"6 to redefine and bring uniformity to the consequences of dissolution will prove no less controversial.7

This article discusses the overarching, if unarticulated, premise of the Family Dissolution Principles. Fundamentally, the Principles conceive of family law as entering a consolidation phase, in which scattershot judicial discretion is displaced by delimiting rules.8 In an effort to ensure the success of this consolidation, the ALI has blueprinted an architectonic design in the construction of the rules of domestic dissolution. This new legal structure showcases three features. First, the generative entities of family law, parents and other domestic unions, are undergoing a utilitarian metamorphosis. Parenthood is in the process of discarding its biological chrysalis and emerging in a more functional form. Second, the financial aftershocks of marital dissolution, traditionally termed alimony (or maintenance) and property division, have virtually melded into one integrated financial schema governing all domestic fractures. Third, despite the ongoing societal reconsideration of the ease of divorce, the ALI Principles exclude consideration of fault or any other dissolution-delaying mechanism. Considered together, these features fuse to form the backbone of a unified field theory of the family, one whose unspoken aim is finally to consolidate the no-fault divorce revolution.9

The substitution of discrete rules for the "largely limitless discretion . . . common in family law"10 sounds a leitmotif throughout the Principles, and it serves to leverage the drive toward the unification

of family law. The attack on the excessive leeway afforded domestic relations courts is itself not new. As Chief Reporter Ira Ellman has noted, "over the past three decades, one theme that emerges is the movement from broad judicial discretion toward more certain rules of adjudication."11 The nationwide adoption of child support guidelines provides the clearest example of this trend, both consolidating and increasing child support enforcement.12

However, the Principles do not merely attempt to further attenuate the scope of judicial authority; rather, they trumpet a finale to most forms of traditional judicial discretion. The sharp shrinking of the scope of discretion is essential to the consolidation and rationalization of the rules for dissolution. …