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Saturday, November 14, 2015

Marriage vs. Sex

This summer, there were two major family law events: the landmark Obergefell same-sex marriage case and the hack on cheating site Ashley Madison. Between the two, I got far more media interest in Ashley Madison. This is so even though the family law implications of the same-sex case were far more dramatic. In fact, the entire landscape of family law has been changed by the case, and I have been working hard to incorporate all of the changes in this semester’s family law course.

By comparison, Ashley Madison is no big deal in the family law. We have moved beyond fault in virtually every aspect of matrimonial law. New York became the last state to adopt no-fault divorce in 2010. The most common fault ground driving property division in many states is economic fault, when one spouse dissipates the marital assets. When it comes to the children, fault is not an explicit factor in the child’s best interest standard. Yes, Ashley Madison has revealed millions of cheaters publicly, but that’s about it.

Yet, we seem to be more interested in the Ashley Madison scandal—even today, daily articles about it are written. I guess that’s the power of sex.

Posted by Margaret Ryznar on November 14, 2015 at 11:00 AM | Permalink


Ha, unfortunately true regarding the media.

I too see the divergence between society and family law (sometimes when teaching the course to somewhat astonished students), it's a great point. I would guess that there will no change in the law, though. Regarding the role of fault in divorce, people have come to like the clean exit out of a marriage that exists, and courts don't want to sort through people's dirty laundry. It's hard to find perfect alternatives and it's hard to get people excited. For example, I was surprised to see the documentary Divorce Corp didn't get more interest from the public (granted, it was especially dramatic).

Posted by: Margaret Ryznar | Nov 14, 2015 4:56:30 PM

The fact it has little effect on family law is not the only determinant on media coverage.

Posted by: Joe | Nov 14, 2015 4:26:20 PM

Going and and speaking to non-lawyers who have never had contact with the family law system there's a lot surprise and some consternation that adulterers don't get punished at all in divorce. Even beyond adultery, in general there seems to still be strong notion that when a marriage breaks up it was sometimes (usually?) one of the spouses fault.

It's interesting that the legal system is pretty divergent from society on this one. I wonder if we will see a legal backlash, a societal attitude change, or neither.

Posted by: brad | Nov 14, 2015 12:10:23 PM

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