INTRODUCTION TO THE CONSEQUENCES OF THE DISSOLUTION OF MARRIAGE. Introductory note: In Westfall's introduction (last sentence, carry-over paragraph on page 687), he states an outdated statement of law. Since the publication of this text, Texas lifted its ban on permanent alimony.
GLENDON ARTICLE: Hardisty: The idea that having a child impresses a lien upon all of the parents' income and property to the extent necessary to provide for the children's decent subsistence is faulty in that it fails to take into account the needs of indigent parents. If paying child support means an indigent parent does not have the ability to sustain him or herself, the parent will die and the revenue stream will dry up permanently for the child. This tracks the philosophy behind the Melson rule of determining a parent's child-support obligations. Under this system, created by Judge Melson in Delaware, the parent allows the child to share in the standard of living of the parents but only after the parents keep sufficient income to meet their basic needs based on a standard amount (usually the federal poverty level standard). The child's basic needs are met next. When income is sufficient to cover the basic needs, the basic needs are met next. This approach, called the "Delaware Child Support Formula", is in effect in Hawaii and West Virginia as well as in Delaware. For an overview, see Page 458-459 in the text.
First line, first paragraph: " ... In barely ten years, following the example of the Uniform Marriage and Divorce Act (U.M.D.A.) as amended in 1973, nearly all American separate and community property states have abandoned their systems of fixed rules for determining how property should be allocated after divorce and have gone over to variants of systems which give the courts substantial discretion to disregard legal title (or the distinction between community and separate property) and to redistriubte the spouses' property in the manner that the judge considers fair." This is a bit of a misstatement in the case of Washington. Washington never had such a system. It adopted, during the first legislative session in 1854, a just and equitable system of property division. Thus, the state never had a system of fixed rules to abandon; judges have always had discretion in Washington.
APPROACHES TO DISTRIBUTION OF PROPERTY IN COMMUNITY PROPERTY STATES: Three community property states are more consistent with the partnership model (as opposed to the familial or equitable distribution model) in generally mandating an equal division of the community estate, either by statute or by decision: California, Louisiana and New Mexico. Louisiana because its system of law was based on the Napoleonic code, or a civil system. New Mexico because of its historically Spanish traditions (a principle of the Spanish community is that property which is acquired by gainful activity during the marriage should be divided equally, in the absence of an agreement to the contrary). California because it changed its system in 1970, at the behest of a feminist movement that distrusted the judiciary to do right by women in dissolution cases. The California Legislature passed a law in 1970 which called for a rather automatic distribution of the community property (with provisions permitting the custodial spouse to live in the residence for as long as the child is a minor). Thus, the legislature robbed the judges of the discretion to divide the property based on fairness and the relative financial situations of the spouses. Emprical evidence has shown that, when given the power to exercise their discretion in the division of property upon divorce absent an agreement between the parties, judges tend to favor the less well-off spouse (in most cases, the woman). Therefore, this change in the law in California, passed with the vocal support of the feminist movement, has actually resulted in a lower transfer of wealth from men to women in California. Hardisty called California the most pro-man community property state in the nation in terms of family law, in part because of this change in the law 30 years ago.
WHICH COMMUNITY PROPERTY STATE MOST FOLLOWS A PROPERTY THEORY OF DISTRIBUTION AND WHICH FOLLOWS IT THE LEAST?
- MOST: Louisiana is the state that follows the property theory the most, that is, the community property state that most follows property principles in determining distribution. This for two reasons:
- Louisiana is one of the three community property states in the nation that has a partnership approach to the distribution of property. In these states, stautes mandate that all community property must be divided equally between the two spouses and that each spouse retains his or her separate property. All other 47 states, community property or common law, follow a system of just and equitable distribution.
- Of its two counterparts in this area (New Mexico, California), Louisiana is the only that joins non-community property states in the proposition that income on separate property is considered community property for the purposes of distribution (the others are Wisconsin, which is a marital property state; Idaho and Texas, common law states. Together, these three states spell "WILT", a handy device for remembering their significance, as in, the income from separated property WILTs into community property in these states).
- LEAST: Of course, Washington. Courts in Washington essentially give no credence to the distinction between community property and separate property as all property is before the court for equitable distribution in the absence of the agreement of the parties.
Glendon says this about the three states (Page 688, last sentence, only full paragraph): Traditional community property systems had the defect that a flat, equal division of acquests often requires the sale and division of the proceeds of the family's only substantial asset, the marital home, with resulting hardship to the children and the custodial spouse." Of course, this applies only to New Mexico and to Louisiana because of the provision in California law that permits the custodial spouse to postpone the sale of the marital home until after the children reach the age of majority.
O'CONNELL: Error: Page 694, first sentence, third full paragraph: "The earliest equitable distribution statute was that of Kansas, passed in 1889." This of course is wrong, because Washington's system of equitable distribution was mandated by statute in the state's very first legislative session, in 1854. Incidentally, Washington instituted a system of no-fault divorce in the same session.
SO WHY IS WASHINGTON SO LEFTY ON FAMILY LAW? Throughout the course, we have learned how Washington is to the left of any other state in the nation in terms of certain aspects of family law. We learned that nonmarital cohabitants can invoke community property law upon breakup (Connell v. Francisco, 127 Wash.2d 339 (1995)) (at the end of a meretriciuos relationship, what would have been before the court in dissolution to be considered for equitable distribution); that state guidelines for determining financial support obligations for noncustodial parents are among the most generous to custodial parents (Washington, and 32 other states, follow the "income shares model" of calculating child support. It is detailed at RCWA 26.19 App.); that it was the first state in the nation to adopt no-fault divorce and equitable distribution (in 1854). So why is Washington so damn progressive? Hardisty said this was due to a couple of factors, namely a tradition of pro-women legislation in the Nineteenth Century. In the 1850s, around the time the state legislature met for the first time, one of the most pressing concerns of those who lived here was the lack of women in the area. It was the frontier, a rough place, and men outnumbered women by about 9 to 1. Washington wanted to do everything it could to make certain that the women who did decide to come West would come to Washington instead of to California or Oregon. Legislative history suggests that legislators were specifically fearful of the threat of California's progressive legislation to the migration of women West in drafting their bills. Additionally, this was the era of the suffragette movement.