Part I of this Note will trace the various threads of American marriage law, particularly the perception that marriage is unraveling today due to an unprecedented divorce crisis. Part II will disentangle the conflicting patterns of contract law and status regimes that variously govern marriage, focusing on the uneven enforcement of antenuptial contracts and the implications of such. Part III will argue that the true focus of regulation is the status of the nuclear family, not of marriage per se. Finally, Part IV will propose a bifurcation of the legal regimes governing marriage and the family, recognizing the ability of individuals to order their private lives without state involvement until third parties—childrenare involved. Laws designed to regulate, and arguably protect, families need to be extended to include those families that are formed outside legal marriages and limited to exclude married couples without children.
Restitching the American Quilt: Untangling Marriage from the Nuclear Family
Available at: https://digitalcommons.law.uga.edu/fac_artchop/679