The New Family Freedom

In family law, “autonomy” has traditionally meant freedom from state interference in one’s intimate life. This Article describes an emergent, libertarian vision of autonomy as property rights that also demands freedom from other family members. This conception, “choice about obligations,” holds redistribution of resources between intimates to be illegitimate unless the richer party “chose” to take on financial obligations ex ante by ceremonially marrying or formally contracting. But as more people conduct their intimate lives outside these legal institutions, choice about obligations increasingly collides with another, more fundamental, family law principle: the imperative to “privatize dependency,” i.e., to redistribute resources between family members in lieu of publicly supporting those who cannot support themselves. This conflict is insoluble on its own terms and creates persistent doctrinal problems in the modern law of family obligations. Parentage law, cohabitant property-division claims, and alimony each present the clash between a richer party’s interest in avoiding “unchosen” family obligations and the state’s interest in avoiding responsibility for citizens’ material needs. Against the back-drop of scant collective support, the law denies the importance of freedom to privatize dependency in parent-child relationships and vindicates “choice” in adult relationships by requiring adults to self-support, all the while insisting that intimates “assumed the risk” of obligation or economic loss. Thus, despite attempts to dispel it through doctrinal workarounds, legal fictions, or willful ignorance, the tension remains. The incompatibility between choice about obligations and privatizing dependency also reveals a deep normative tension in the law, for both principles originate in the current neoliberal moment. Neoliberal commitments shape modern family law, but prove both incoherent and deficient as a framework for intimate relationships. As currently structured, family law fails to recognize and further the vital role that families play in meeting their members’ deepest human needs. To better conceptualize the rights and responsibilities attending intimacy, modern family law should rethink its approaches to both autonomy and dependency.