Channeling Function of Family Law

“The channeling function of Family Law” is a term originally coined by Carl E. Schneider in an Article originally published in Hofstra Law Review in 1992. Schneider claimed that the channeling function of the Law was one of an essential function of our law and that it was a major component of Family Law. He reasoned that the law should shape and order our lives much like a channel shapes a body of water. The walls of a channel form boundaries of where the water can flow and in turn direct the motion of it flow. This is the image Schneider was envisioning.

Although Schneider went to great lengths promote the impertinence of this guiding force in our society, sometimes the walls of the law’s channel can make an individual’s life very difficult and uncomfortable. Marriage and Divorce are primary examples of the channeling function of the Law. Both the ease of getting married and the difficulty of dissolving a marriage illustrate this unique function of the Family Law.

Under California law, it is remarkably easy to get marriage. A marriage license typically cost less than $100. Presently, anyone who has the consent of unwed partner, a witness, and the help of a person who has the authority to marry (which is also rather easy to attain) can get married. You do not need to get a background check or a credit report or provide any sort of disclosures. Not only is it incredibly easy to wed, but the institution of marriage also offers enticing benefits, both monetary and non-monetary.

First, the government offers taxes breaks to spouses for both income taxes and wealth transfers between spouses. These monetary benefits are wider for civil service such as soldiers, police, and bureaucrats. For example, a married soldier is paid more than an unwed soldier who performs the same duties. These monetary benefits seem to suggest that our system promotes marriage, enacting laws and setting up mechanisms that encourage individuals to wed. Secondly, there are numerous non-monetary benefits of being married. Martial privilege and automatic establishment of paternity and social recognition are just some of the non-monetary benefits of getting married.

The benefits of marriage and the ease to which a person can get married suggest the direction the Family Law is channeling our society toward the nuclear family; conversely, the law places several road blocks in the way of a person seeking a divorce. The three major road blocks which this article will briefly touch on are the cost, waiting period, and complexity.

The first barrier is the cost. It might cost a mere $100 to get married, but the basic filing fees to dissolve a marriage in San Diego County is presently $435 per spouse and an additional $50-$100 for any motions that either party would like to file. This means that the mandatory fees associated with the typical divorce are about 10x greater than the fees associated with getting married. These figures do not even factor in the cost of attorneys and other legal professionals that might be necessary to finalize a divorce.

The next obstacle to attaining a divorce is a 6 month waiting period in California. Before the family courts will finalize any divorce proceeding, 6 months must pass from the day the petition is filed with the court. Can you image how many broken marriages and divorces could be avoided if an equivalent rule was in enacted for getting married? A 6 month cool down period on marriage would certainly put wedding chapels in Las Vegas out of business over night.

The third major road block to dissolving any marriage is the complexity associated with divorce proceeding. This daunting obstacle is perhaps the most difficult to overcome. Although a marriage license is few pages long and roughly uniform throughout the state, a divorce requires numerous pages mandatory documents and several Declarations of Disclosures, which can vary widely depending on the particularities of your case. Not only is the process complex, divorce proceeds are sensitive to regional practices and legal customs. The issues that a San Diego Family Law Attorney La Mesa might face are rather different than the issues faced by a Family Law attorney in a different state or region.

Although it seems like the Law has been set up to discourage divorce, the obstacle are not impermeable and marriages can often become damaging to the health and happiness of an individual. Sometimes the government does not know best and an individual might need to resist the channeling function of family law and seek a divorce.

Since our legal system is set up to make an already emotionally difficult situation even more difficult with legal road blocks, it might be wise to seek out the help of expert, a San Diego Family Law Attorney. Attorney Brian Burkett has practiced law in San Diego for over 10 years and is familiar with San Diego Family Law and can assist you with divorce proceedings. If you are entangled in a marriage that is not working and are seeking a divorce, then you should give Attorney Brian Burkett a call at (619) 250-2683 to schedule a free consultation or you can visit our website at www.childcustodyanddivorce.com. Please feel free to send us an email or check out our blog.