Unprincipled Family Dissolution: The American Law Institutes Recommendations for Spousal Support and Division of Property
Westfall, David, Harvard Journal of Law & Public Policy
I. INTRODUCTION A. Why Serious Reform of Family Law Is Needed B. Basic Flaws in the Reporters' Response C. The Reporters' Failure to Reign In Judicial Discretion II. THE REPORTERS' RATIONALES FOR "COMPENSATORY PAYMENTS" A. Compensation for Loss of Marital Living Standard Under Section 5 B. Back Pay for Child Care Under Section 5.05 C. Back Pay for Morally Obligated Care Under Section 5.11 D. Claims for Restoration of Premarital Living Standard After A Short Marriage Under Section 5.13 E. Claims for Contributions to the Other Spouse's Education or Training III. THE REPORTERS' RECOMMENDATIONS FOR DURATION, JUDICIAL MODIFICATION, AND TERMINATION OF AWARDS OF COMPENSATORY PAYMENTS A. Termination of Awards B. Duration and Judicial Modification of Awards Made Under Sections 5.04 and 5.05 C. Effect of Obligee's Cohabitation IV. CHARACTERIZATION AND DIVISION OF PROPERTY ON DISSOLUTION A. Enhancement of Separate Property by Spousal Labor 1. The Definition of "Substantial Time" 2. The Determination of the Marital Property Portion B. Property Derived from Earnings Before Marriage or After Divorce 1. Goodwill 2. Employee Stock Options C. Financial Misconduct as Grounds for Unequal Division of Marital Property D. Recharacterization of Separate Property as Marital Property Under Section 4.12 V. SEPARATION AGREEMENTS VI. CONCLUSION
Principles of the Law of Family Dissolution: Analysis and Recommendations (the "Principles") (1) reflects eleven years' work by a massive team of reporters, advisors, and consultative groups. (2) A former director of the ALl described the project as "among the most important that the Institute has ever undertaken." (3) The task took on Herculean dimensions. Unfortunately, the final result is profoundly disappointing, particularly in contrast to the ALI's outstanding work in the Restatements, which have often exerted a strong positive influence on major areas of law. (4)
My concern is that the Principles, published with the prestigious imprimatur of the ALl, may impede much needed reforms and even lead the legislators, judges, and rule makers to whom they are addressed to adopt unsound policies. In seeking to ward off these potentially harmful effects, I want first to analyze exactly what the Institute's imprimatur on the Principles really means and then to demonstrate why their uncritical acceptance as guideposts would be unwise. They contain serious deficiencies that should be corrected.
At the outset, I have concerns about the procedures under which the Principles were passed. Although its bylaws require authorization by the membership and approval by the Council for publication of any work as the Institute s position, (5) the bylaws also provide that [a] quorum for any session of a meeting of the members is established by registration during the meeting of 400 members...." (6) Thus a quorum is conclusively deemed to be present for all sessions of a meeting as soon as a little over 10% of the approximately 3800 members (7) have registered, even though the number present and voting at a given session may be minimal. "A majority of the members voting on any question during any meeting or session is effective as action of the membership," (8) and there is no proxy voting. As a result, fundamental matters of policy may be decided by a handful of votes, (9) and may reflect the views of only a tiny fraction of the membership. Yet the Principles are published as the position of the Institute, with no indication of the number of members who actually voted on any given portion or the narrow margin by which it was adopted. Even a careful reader of the Proceedings of the Institute's Annual Meeting may learn no more than that a given motion was adopted (or defeated) by a voice vote, with no way of knowing how many voices were heard. …