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Copyright (c) 2000 Kansas Law Review, Inc.
Kansas Law Review

ARTICLE: The Welfarization of Family Law

January, 2000

48 Kan. L. Rev. 229


Tonya L. Brito *


I. Introduction

Family law and welfare law share a connectedness that has not been extensively addressed by scholars in either the family law or welfare law arenas. This Article attempts to bridge the scholarly gap by examining, first, their shared aim of family regulation and, second, two distinct phenomena that have emerged from this overlapping function: duality in family law and the welfarization of family law. Duality in family law is exemplified by the two distinct bodies of family law that exist in the United States: one for families receiving public assistance and another for families in the rest of society. Under this divided regime, vastly different legal rules govern family matters for the two groups. Under what I term the "family law of welfare," poor families are subjected to privacy-invading, cost-conscious welfare regulations that are designed to regulate family life. These rules do not apply to non-welfare families whose relationships are governed by family law principles of general application, which I term "general family law."

While the wall separating general family law from the family law of welfare was relatively solid for many years, it became more porous with the recent wave of welfare reform that began in the late 1980s. 1 Rather than coexisting independently, the two varieties of family law are converging, leading to what I term the "welfarization" of family law. In brief, welfarization of family law takes place when the family law of welfare penetrates the dividing wall and ...
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