Publication Title
Journal of the American Academy of Matrimonial Lawyers
Volume
38
Page
399
Year
2026
Abstract
The great family law divide is said to be marriage, as marriage has emerged as a marker correlated with race and socioeconomic status. This article argues that the real family law divide, inside and outside of marriage, is agreement. Family law, and the family court system that implements it, produce agreement when legal rules, societal norms, and family court procedures operate together to encourage shared understandings expressed through statuses such as marriage or parenthood, and legally enforceable agreements. In an increasingly unequal society, the family understandings of the college-educated middle class have moved apart from those much less privileged in income and education. Family doctrines and proceedings lock in the understandings of the elite while clashing with those of the rest of the population. Family law reformers, to the extent that they recognize these issues at all, propose the imposition of status-based doctrines on the unmarried. This article argues that the movement from contract to status in the recognition of unmarried relationships has been a mistake that misunderstands the nature of the problem. The needed approach is the redesign of family law procedures to provide greater support for the different agreements and understandings of those marginalized by the current system.
Recommended Citation
June Carbone and Brian H. Bix, Family Law Agreement and the New Gender Bargains, 38 J. Am. Acad. Matrimonial Lawyers 399 (2026), available at https://scholarship.law.umn.edu/faculty_articles/1210.
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