If the changes are implemented by states, sexual orientation would not be a factor in determining custody of a child unless that arrangement could be shown to be harmful. And when long-term live-ins break up, one could owe the other the equivalent of alimony.
The report from the American Law Institute, a prestigious group of judges, lawyers and scholars, is the latest development in the increasing debate over the future of marriage, which is heard in venues ranging from the family dinner table to Congress and state legislatures considering marriage-incentive programs.
For the most part, family and divorce law is the province of states, but their approaches vary widely. Couples can be treated differently in the same courtroom, depending on the judge assigned. The new report is intended to set guidelines for individual judges and state legislatures, says co-author Ira Mark Ellman, a law professor at Arizona State University and editor of the report. The project addresses the "sense of unfairness" that the couples feel when a judicial decision "is decided by the luck of the draw, who the judge is," he says. And more couples will settle out of court if they know a decision is predictable, he says.
The wide-ranging, 2,000-page study covers many aspects of divorce law. The most controversial section equates, to some extent, the rights and responsibilities of marrieds and non-marrieds in terms of alimony, child support, child custody and property settlements.
Critics say the study undermines the institution of marriage by equating it with cohabitation. David Blankenhorn, founder of the Institute for American Values, plans to hold a summit of experts in family law and family studies at Harvard Law School in February to rebut the report. "The troubling aspect is that it further blurs, in some cases, the distinctions between being married and non-married" in favor of those merely in close relationships, he says.
"I think this is a terrible idea," Blankenhorn says. "It seems clear to me that children do best in a society that recognizes and supports marriage, that gives them a certain status and protection. And it is good for adults because it encourages long-term commitment and the natural supports you do not get from other kinds of close relationships."
The authors of the project say they are just reflecting reality, a diverse society that includes a 72% increase in cohabiting couples in the past decade. "As the incidence of cohabitation has dramatically increased and cohabitation has become socially acceptable at all levels of society, it has become increasingly implausible to attribute special significance to the parties' failure to marry," the report says.
"If it looks like a marriage, it should be treated like one," says Grace Ganz Blumberg, a co-author and law professor at the University of California-Los Angeles. But she emphasizes the report "does not encourage cohabitation." Co-authors dealt with the subject, she says, because divorce court judges advising the project say 20% of their caseloads involve non-married couples. Some applaud the project's recommendations.
"It is about time our legal system stopped turning its back on unmarried couples and other family forms not recognized under the law," says Marshall Miller, co-author of Unmarried to Each Other. "At last, we're hearing policy proposals based on reality, rather than wishful thinking." Judy Parejko, author of Stolen Vows, says the report may just help line the pockets of more divorce lawyers who will have more business when various types of couples want to split. "The positive part is that people will start talking about this," Parejko says. "It is an important document."
Diane Sollee says people are already talking--a lot. The founder of the Coalition for Marriage, Family and Couples Education is hearing from both the political left and the right about the issue. She sees some good in the report, but says "it fills me with dismay when experts start talking about dumbing down to the level of what things are, rather then talking about what changes we would like there to be. That is not the role of grown-ups who are in positions of leadership."
The report, titled The Principles of the Law of Family Dissolution: Analysis and Recommendations, will be more readily accessible to the public at the end of January, when it becomes available in paperback.
Currently, the hardcover can be ordered for a base price of $112.50 from the American Law Institute (www.ali .org). Public interest in the lengthy document has increased since it became available online via LexisNexis, which charges for its services.
Although the full effect of the report remains to be seen, earlier recommendations from the American Law Institute have been given great weight by judges and state legislatures.