Analysis and Commentary on Family Law

Misnomers: The Law and Practice of Child Naming

Hofstra University law professor Joanna Grossman discusses a case in which the Nebraska Supreme Court held a five-year-old boy should keep his original surname despite petitions by each of his unmarried parents to change it. Grossman describes how the case reflects the many tensions over child naming aggravated by unwed parenting, divorce, and remarriage.

Is It Arbitrary to Distinguish Incest From Homosexuality?

Cornell University law professor Sherry Colb differentiates state bans on incestuous marriages from bans on same-sex marriages by looking at the governmental interests the bans purportedly serve and the harm done to their targets. Colb argues that the U.S. Supreme Court can, if it wishes, use this distinction to strike down bans on same-sex marriages without also having to rule on bans on incestuous marriages.

Two New Rulings Unmask the Weakness of the Case Against Marriage Equality

Cornell University law professor Michael Dorf comments on two recent rulings on state bans on same-sex marriage—one by the U.S. District Court for the District of Louisiana upholding that state’s ban and the other by the U.S. Court of Appeals for the Seventh Circuit striking down bans in Indiana and Wisconsin. Dorf explains how a comparison of these two rulings reveals weaknesses in the case against marriage equality.

Mommy and Momma: Determining Parentage in the New Family

Hofstra University law professor Joanna Grossman comments on a recent decision by the Supreme Court of New Hampshire recognizing that both women who raised a child (while they were in a relationship together) are legal parents, despite that only one is the biological mother. Grossman describes how that decision and others like it indicate an evolving understanding of parentage and how families are created.

Federal Appellate Court Rules Utah’s Ban on Marriage by Same-Sex Couples Unconstitutional

Hofstra University law professor Joanna Grossman discusses a recent decision by the U.S. Court of Appeals for the Tenth Circuit upholding a lower court’s invalidation of a Utah ban on same-sex marriage. Grossman points out that while state same-sex marriage bans have been invalidated in sixteen different rulings across the country, this decision marks the first time a federal appeals court has so ruled.

The Legal Price of Adultery Goes Down: North Carolina and West Virginia Abandon Heartbalm Actions

Hofstra University law professor Joanna Grossman and Stanford University law professor Lawrence Friedman discuss the erosion of “heartbalm” laws—legal claims against the extramarital lover of one’s spouse—in North Carolina and West Virginia. Grossman and Friedman describe the history of these causes of action and their decline over time. They explain the reasoning behind two different courts’ rulings—a lower court in North Carolina and the Supreme Court of Appeals of West Virginia—independently striking down their respective state’s remaining heartbalm actions.

Will the Lower Court Consensus on Same-Sex Marriage Influence the Supreme Court?

Cornell University law professor Michael Dorf discusses how the lower courts’ consistent rulings in favor of same-sex marriage might influence a decision by the U.S. Supreme Court. Dorf observes that every single judge to rule on the question has relied on the Court’s 2013 decision in United States v. Windsor for the conclusion that SSM bans are unconstitutional. He concludes that while the lower courts’ decisions have no binding effect on the Supreme Court, they might serve as a legal barometer of what is legally plausible and as conduits of public opinion.

A Decade of Change: The Tenth Anniversary of Same-Sex Marriage in the United States

Hofstra University law professor Joanna Grossman reflects on the progress of same-sex marriage in the United States over the past decade. She notes that on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples. Grossman describes how the movement gained momentum and how the U.S. Supreme Court’s 2013 decision in United States v. Windsor contributed substantially to that rapid change. She observes that as of now, 19 states and the District of Columbia permit same-sex marriage, and that number is only going to increase.

Married Couple’s Phone Sex Did Not Force Divorce Clock to Reset

Justia columnist and Hofstra law professor Joanna Grossman discusses a recent decision by a Maryland appeals court holding that a couple’s engaging in phone sex does not constitute cohabitation for the purpose of divorce. Grossman describes the history of fault and no-fault divorce in Maryland and explains why the court reached the decision it did in this case. Although she acknowledges that the court’s reasoning is sound, she presents two considerations that might have supported the opposite conclusion.

Adoption by Gay Couple Not Blocked by Illegal Surrogacy Agreement

Justia columnist and Hofsta law professor Joanna Grossman discusses a New York family court’s holding that the illegality of a surrogacy agreement should not preclude adoption of the children born from it. Grossman provides an overview of the practice of surrogacy and the legislation its advent sparked, and discusses New York law on that subject. She concludes that the court correctly balances the best interests of the children against the requirements of an outdated law on surrogacy.

The High Price of Badmouthing One’s Spouse During Divorce

Justia columnist and Hofstra law professor Joanna Grossman discusses one aspect of the highly public divorce between Ira and Janice Schacter. She notes that a court recently held that the wife’s decision to vilify her husband in the press, which led to a reduction in his ability to attract clients, was sufficient cause to reduce her share of the marital property. Grossman comments on the judge’s reasoning and raises two key points that could bring the decision into question.

The “Agunah” Dilemma in Orthodox Jewish Circles

Justia columnist and Cornell law professor Sherry Colb comments on one manifestation of gender inequity inherent in Orthodox and Conservative Judaism—the “get” requirement for a religiously recognized divorce. Colb explains how this requirement gives the husband the unilateral power to decide whether and for how long the marriage lasts. She suggests that traditional communities should reinterpret divorce in a manner that allows any unhappy partner to successfully exit a marriage.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more