2.7.1. The Mid-Atlantic States (1965-present): Family Autonomy


Spouses allowed to recover from each other for injuries

Parents and children allowed to recover from each other for injuries

“Palimony” (division of property and award of alimony by unmarried people at separation) authorized

Adoption of no-fault divorce

Rights of gay couples

New York

1937 (by statute)




2011:  Legislature authorizes gay marriage

New Jersey





2006:  Supreme court mandates civil unions

2012:  Legislature passes bill authorizing gay marriage; vetoed by governor







Autonomy of family members:  the demise of intrafamily immunities

Badigian v. Badigian – New York, 1961 (174 N.E.2d 718); Immer v. Risko – New Jersey, 1970 (267 A.2d 481)

  • The last bastions of traditional immunity from tort claims – immunity of spouses, parents and children from liability to each other – fell soon after charitable and governmental immunity ended in most states.  A few judges denounced the ending of spousal and parent-child  immunity as an assault upon marriage and the family. 
  • In the mid-Atlantic region, New York legislature began the process of liberalization when it abolished immunity between husband and wife in 1937.  Courts in all three of the mid-Atlantic states moved slowly toward elimination of all family immunities during the 1950s and 1960s;  they invited their legislatures to complete the process and when the legislatures failed to do so, they completed the job for them with little dissent. 

Autonomy to define family:  the battle over marital rights for cohabitants

Kozlowski v. Kozlowski – New Jersey, 1979 (403 A.2d 902); Morone v. Morone – New York, 1980 (429 N.Y.S.2d 592);  Knauer v. Knauer – Pennsylvania, 1983 (470 A.2d 553)

  • The debate over whether to give rights to unmarried couples similar to those conferred by marriage, such as a fair division of property and income between the spouses if the marriage ends, is almost as old as the nation.  Up to the early 20th century, “common law” marriages were widely recognized because couples living in the many remote areas of the United States could not always get married easily.   In the mid-20th century, many states abolished common-law marriage in order to promote marriage as the norm and to standardize couples’ rights; but almost immediately, the pendulum began once more to swing the other way. 
  • In Marvin v. Marvin (1976), involving a dispute between the actor Lee Marvin and his live-in companion, the California supreme court refused to extend the protection of marriage laws to unmarried couples but it held that in appropriate cases, their relationship could be treated as a contract for sharing of assets and income, or courts could use their equitable powers to provide a fair outcome to the separating couple.  The Marvin case received nationwide publicity and triggered some controversy in the mid-Atlantic region.   New Jersey readily accepted Marvin; Pennsylvania followed suit a few years later. 
  • New York, despite its reputation for innovation in many areas of law, has always been slow to change in the area of family law.  For example, the state permitted divorce only based on adultery and other narrow grounds long after most other states abandoned the concept of divorce as a moral failure and shifted to no-fault divorce systems; New York did not adopt a no-fault system until 2010.  New York’s highest court followed this tradition in Morone:  it decided that New York courts would intervene in separations of unmarried couples only when they had made an explicit agreement to divide assets in the event of separation.  Assets would not be divided simply as a matter of equity because it would be too difficult for the courts to make consistent decisions as to what was fair in such cases.  

Autonomy to define family:  the battle over gay marriage

Lewis v. Harris – New Jersey, 2006 (908 A.2d 196); Hernandez v. Robles – New York, 2006 (855 N.E.2d 1)

  • In 2003 Massachusetts, by decision of its supreme court, became the first state to legalize gay marriage.  The decision was highly controversial.  Most New England states have either followed suit or have authorized their gay residents to enter into “civil unions” which confer most rights associated with marriage, but gay marriage has met with strong opposition outside the Northeast.  In the mid-Atlantic region, New York and New Jersey have been supportive of gay rights; to date, Pennsylvania, following its traditional streak of moderate social conservatism, has neither created nor acted against gay rights associated with marriage. 
  • New Jersey was one of the first states to respond to Massachusetts’ lead in this area.  In 2003 the legislature authorized “domestic partnerships,” allowing gay couples and other unmarried couples to receive rights under each other’s health insurance and some other benefits commonly available to spouses.  In Lewis, New Jersey’s supreme court went further:  it held that the guarantee of equal protection in the state’s constitution meant that gay couples must receive the same legal benefits as married couples.  By a 4-3 vote, the court refused to require that gay couples be allowed to marry; the three dissenters, who argued that “we must not underestimate the power of language” as a tool of legal discrimination, would have taken this final step.  In 2012, the legislature agreed and passed a bill authorizing gay marriage, but the bill was vetoed by the governor.
  • New York initially took a more conservative approach.  In Hernandez the state’s highest court, by a 4-2 vote, disagreed with Massachusetts and held that limiting marriage to straight couples did not violate the state’s equal-protection guarantees.  The majority reasoned that the limitation could be justified as an incentive to procreation:  only straight couples can have biological children and offering the advantages of marriage  encourages them to do so.   Two dissenting justices argued emphatically that marriage is a fundamental right  that there was no evidence exclusion of gay couples from marriage promoted child-bearing or led to better-raised children, and  and should not be denied.   The majority noted that the legislature could authorize gay marriage if it wanted and in 2012, after several years of debate, it did so by a narrow margin.

ACT-UP New York poster (1989) - courtesy ACT-UP New York, Miguel Dominguez and New York Public Library

“[W]e are doubtful that the marital relationship will be any more disturbed by allowing a cause of action than by denying it. … Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”  - Justice ___, in Immer

“[Change came] when the realization dawned that, when a child sues a parent, family harmony must already be at so low and ebb that it is grotesque to deny the child a remedy in the name of preserving that harmony.” Justice Stanley Fuld (dissenting), in Badigian

“Whether we designate the agreement … to be express … or implied is of no legal consequence.  … Parties entering this type of relationship usually do not record their understanding in specific legalese.  … The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that apparently have been so widely abandoned by so many.”  - Justice ___, in Kozlowski

 “Absent an express agreement, there is no frame of reference against which to compare the testimony presented … There is … substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compansention, if any, the parties intended to be paid.”  - Justice ___, in Morone

“There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships. … [But u]nlike our colleagues who are prepared immediately to overthrow the long established definition of marriage, we believe that our democratically elected representatives should be given a chance to address the issue … To alter that meaning [of marriage] would render a profound change in the public consciousness of a social institution of ancient origin..”  - Justice _, in Lewis

“The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.  Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. … Perhaps [opponents] are right, but the Legislature could rationally think otherwise … “[T]he traditional definition of marriage is not merely a by-product of historical injustice.” – Justice __, in Hernandez