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Family Law Outline

Contents
FAMILY FORMATION ............................................................... 2
Marriage Requirements ....................................................... 2
Common Law Marriage ........................................................ 3
Putative Spouse Doctrine .................................................... 4
Co-Habitation ........................................................................... 4
Parent and Child Relationships ......................................... 5
Rights and Responsibilities Within Families ................. 6
Financial and Domestic Responsibilities Between
Spouses ....................................................................................... 6
Domestic Violence .................................................................. 7
Divorce and Dissolution of Families ............................... 10
Grounds for Divorce ........................................................... 10
Property Distribution ......................................................... 11
Child Support ......................................................................... 15
Maintenance ........................................................................... 17
Child Custody and Parenting Time ............................... 18
Private ordering ................................................................... 21
Alternative Dispute Resolution ...................................... 21


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FAMILY FORMATION
Marriage Requirements
I. Consent to Marry a valid marriage has always required mutual, voluntary consent of
spouses who are mentally competent to consent.
a. In re Estate of Santolino
i. Issue: May a court annul a marriage after the death of one party to the
marriage
ii. Respondent, decedents sister, attacks the marriage on 4 grounds
1. Decedent was impotent
2. Decedent was unable to consent to the marriage
3. The marriage was based on fraud as to the essentials of the marriage
4. There are equitable reasons to declare the marriage void
iii. Held:
1. It is logical that the parties to the marriage, alone would determine
2. Under the factual setting of decedents declining health, an argument
certainly can be made that decedent lack the capacity to consent.
b. Void versus Voidable marriages
i. Void marriages are those that offend very strong public policies considered
to be absolutely void, even without a request for annulment
ii. Voidable marriages offend public policies but are considered legally valid
unless and until one party requests an annulment
II. Marriage Formalities
a. Marriage license
i. Requirements for obtaining a license are set out by statute
b. Solemnization
III. Minimum Age
a. Most states set the minimum age at 18, 16 with parental consent, and in rare case 14
with consent from the parents and the court.
IV. Race
a. Constitutional Scrutiny of family law 2 primary ways of attacking family law
regulations
i. Discrimination based on race
ii. Fundamental freedom to marry
V. Polygamy
a. State v. Holm
i. Held:
1. Marry, as used in the bigamy statute, includes both legally
recognized marriages and those that are not state-sanctioned
2. The law outlawing bigamy is a neutral law of general applicability and
any infringement upon the free exercise of religion caused by the law
is constitutionally permissible.
3. Lawrence does not apply here because Lawrence decriminalized
private marital acts, this statute implicates the public institution of
marriage
4. Dissent

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a. The definition of marriage should include only legally
recognized unions.
b. The broad criminalization of the religious practice of polygamy
is not a justified method of attacking other criminal behavior,
such as, in this case, sexual conduct with a minor.
c. Lawrence does apply because choosing polygamy is part of
choosing who to marry, which is a private aspect of marriage
protected by Lawrence
VI. Same-sex Marriage
a. Goodridge v. Dept. of Public Health
i. Issue: Whether, consistent with the state constitution, MA may deny the
protections, benefits, and obligations conferred by civil marriage to a same-
sex couple who wishes to marry.
ii. Held:
1. The states interest in regulating marriage is not based on the concept
of marriages primary purpose being procreation because
Common Law Marriage
I. Even without solemnization or a license, parties could contract a valid common-law
marriage simply be:
a. Living together, and
b. Holding themselves out to be married with
c. The mutual intention to get married.
II. Once formed, a common-law marriage was fully valid for all legal purposes, and could be
dissolved only through formal divorce.
a. Mutual assent was the first essential.
III. Purposes of Common-law Marriage
a. The courts were shielded from potential claims of needy women
b. Avoided the law branding children with the illegitimacy status
c. Reduced the number of potentially threatening non-marital domestic relationships
by labeling them marriages, which protected the institution of marriage
IV. Beginning in the 1800s, the tide began to turn against common-law marriage and most
states have not enacted legislation abolishing the institution.
V. Conflicts-of-laws rules provide for upholding a common-law marriage as valid throughout
the U.S. provided it was successfully created in a state that recognized the institution when
the marriage was formed.
VI. In re Estate of Hunsaker
a. Issue: Whether appellant was the common-law wife of decedent and thus an heir to
his estate
b. Held: All 3 elements of common law marriage existed, thus appellant was decedents
common law wife.
VII. Indiana Law
a. IC 31-11-8-5: Common law marriages entered into after January 1, 1958
Sec. 5. A marriage is void if the marriage is a common law marriage that was entered
into after January 1, 1958.

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Putative Spouse Doctrine
I. Provides an equitable remedy where an innocent spouse has relied in good faith on a
mistaken belief in the validity of the marriage.
II. This doctrine does not validate the marriage.
a. The attempted marriage remains void, but the doctrine provides for relief that may
closely resemble the relief the party would have received if the attempted marriage
had ended in divorce.
III. Policy
a. Avoid depriving innocent parties, who believe in good faith that they are married,
from being denied the economic and status-related benefits of marriage such as
property division, pension, health benefits, etc.
b. Fairness and equity favor recognizing putative spouse when parties enter into a
marriage ceremony in good faith and without knowledge that there is a factual or
legal impediment to their marriage.
Co-Habitation
I. Intent/Contract-Based Agreements
a. Marvin v. Marvin
i. Held:
1. The provisions of the Family Law Act do not govern the distribution of
property acquired during a nonmarital relationship such a relationship
remains subject solely to judicial discretion
2. The courts should enforce express contracts between nonmarital partners
EXCEPT to the extent that the contract is explicitly founded on the
consideration of sexual services.
3. In the absence of an express contract, the courts should inquire into the
conduct of the parties to determine whether that conduct demonstrates an
implied contract or some other tacit understanding between the parties
b. Hewitt v. Hewitt (IL): 3 kids; own property together; held themselves out to be married;
together for 15 years; she was pregnant in college by him; man didnt want to be married,
but wanted to treat her as wife
i. Courts Arguments:
1. Common law marriage would weaken the traditional understanding
of marriage
a. Worried about children being in married families
b. Background concern of legitimizing sexual relations outside of
marriage
2. Concern about other laws
a. Concern of effects on a bundle of rights and relationships in the
law; court worried about recognizing this as marriage would
open the door of recognizing this as marriage for other
purposes

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b. Once you recognize this as having legal import, would you have
to recognize this as having legal import for other laws that rely
on marriage
c. Bright v. Kuehl: IN case that is a little more lenient that IL
Parent and Child Relationships
I. Establishing Parenthood
a. Common Law Martial Presumption a married husband and wife were presumed
to be the father and mother of a child born into the marriage effectively barred
either spouse from testifying that the husband was not the childs father.
i. Establishing Paternity
1. Michael H. v. Gerald D.: Under Indiana law a biological father could
bring a claim (based on the constitutional right from the Michael H.
case) and if he is the father based on a paternity test
II. Putative Father Registries
a. Where a man believes he is or may be a childs father, registry statutes place the
burden on him to register if he wishes to claim paternity and receive notice of
prospective adoption. Once the man receives notice, he may seek to establish
paternity and assert his right to veto the adoption.
III. Uniform Parentage Act (CB 304)
IV. Determining Maternity & Surrogacy
a. Johnson v. Calvert: courts look at intent of any contract made
b. Surrogacy: K.M. v. E.G. (see also final review notes)
i. Issue: Whether a woman who provided ova to her lesbian partner so that the
partner could bear children by means of in vitro fertilization is a parent of
those children.
c. IN wont enforce surrogacy contracts

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Rights and Responsibilities Within Families
Financial and Domestic Responsibilities Between Spouses
I. Common Law
a. Blackstone
i. No contracts between spouses, even before marriage
ii. Husband criminally responsible for wife
iii. Husband takes responsibility and possession of wifes property and debts
iv. Husband must provide necessities
II. Interspousal Support
a. The Traditional View of Support Obligations
i. McGuire v. McGuire
1. The District Court Held: Plaintiff/Wife was legally entitled to use the
credit of Defendant/Husband and obligate him to pay for certain
items in the nature of improvements and repairs, furniture, and
appliances for the household and required Defendant/Husband to
purchase a new car with an effective heater within 30 days.
2. State Supreme Court REVERSED holding: The living standards of a
family are a matter of concern to the household, and not for the courts
to determine. As long as the home is maintained is maintained and the
parties are living as H and W and the H is legally supporting his W,
public policy requires the judgment of the district court to be
reversed.
3. Dissent: There is and can be no doubt that, independent of statutes
relating to divorce, alimony, and separate maintenance, if this plaintiff
were living apart from the defendant she could in equity and on the
facts as outlined in the record be awarded appropriate relief.
III. Necessaries Doctrine to compensate the wifes legal disabilities during marriage, the
doctrine allowed the wife to buy necessities from a 3
rd
party using her husbands credit.
a. Bartrom v. Adjustment Bureau
i. The court concludes that the old version of the necessaries doctrine that
would hold H responsible for Ws medical bills, but not vice-versa,
unconstitutional on equal protection grounds
b. Indianas Necessaries doctrine is gender neutral, Policy:
i. Both spouses rely on each other, mutual responsibility to cover necessities
ii. Family functions as one economic unit; co-dependence with more women
working
iii. If spouses arent mutual responsible under the doctrine the state or a 3rd
party would have to pay for the one spouses necessities
IV. Spousal property distribution upon death
a. In community property states, regardless of what the will provides, the surviving
spouse is entitled to one-half of the marital property
b. In common law states the will is controlling and the spouse can be left out entirely
i. In these states the surviving spouse was traditionally protected by:
1. Dower under which a widow was entitled to a life interest in 1/3 of
her husbands real property; or,

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2. Curtesy through which a widower acquired a life interest in all of his
wifes real property IF children were born into the marriage.
ii. Dower and Curtesy have been replaced in non-community property states by
the Statutory Elective Share which generally allows a surviving spouse to
elect to receive 1/3, or in some states, of the estate of the deceased spouse.
1. Typically applies to ALL property, rather than just real property like
dower and curtesy
Domestic Violence
I. Domestic Violence Defined: a pattern of attempts to exercise coercive control over an
intimate partner.
II. Civil Protective Orders (CPO) court orders that bar an individual who has committed an
act of intrafamilial violence from further harmful contact with the victim.
a. Obtaining a CPO
i. Most states allow the victims to first seek a temporary ex parte order, which
can be obtained without notice to the batterer and provides emergency
injunctive relief restraining the batterer from inflicting further violence on
the victim
ii. Long term, permanent CPOs, are entered only after the abuser has had notice
and an opportunity to be appear before the court and the court has found
cause to issue the order
b. Enforcing a CPO
i. Violation is treated as a misdemeanor in most states, and a felony in the rest.
ii. To be effective the victim must have a copy of the CPO and being willing to
call the police
III. Criminal Justice Response, Arrest, and Prosecution
a. Indiana Code - IN 35-33-1-1(a) A law enforcement officer may arrest a person
when the officer has
i. (2) probable cause to believe the person has committed or attempted to
commit, or is committing or attempting to commit, a felony;
ii. (4) probable cause to believe the person is committing or attempting to
commit a misdemeanor in the officers presence;
iii. (5) probable cause to believe the person has committed a domestic battery
b. Many states have no-drop policies meaning that it is the prosecutors decision, not
the victims, whether to proceed with prosecution of a domestic violence case.
i. Many prosecutors have also adopted vertical prosecution under which one
prosecutor handles the case from beginning to end, which promotes
consistency in the case and helps victims become more comfortable with the
process
c. Castle Rock v. Gonzales
i. Issue: Whether an individual who has obtained a state-law restraining order
has a constitutionally protected property interest in having the police
enforce the restraining order when they have probable cause to believe it has
been violated.
ii. Held: We do not believe that the applicable provisions of Colorado law made
enforcement of restraining orders mandatory. A well established tradition of

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police discretion has long coexisted with apparently mandatory arrest
statutes. Therefore, we conclude that respondent did not, for purposes of the
Due Process Clause, have a property interest in police enforcement of the
restraining order against her husband.
iii. Dissent: The Colorado law created the functional equivalent of a private
contract by granting respondent an entitlement to mandatory individual
protection by the local police force, and that state-created right qualifies as
property entitled to constitutional protection.
d. Carroll v. Shoneys: woman employee has abusive husband; told restaurant
employees and manager that she feared he would come for her at work; they put
her in a hotel one night after he came in and beat her; she called in next day and said
she doesnt want to come in out of fear; manager told her to come in and they would
protect her; she came in and husband came and shot her in the back of the head
i. Elements to establish
1. Foreseeable
2. Specialized relationship or duty
3. Probability that the criminal activity is going to happen
ii. Held: it was not foreseeable that a murder would occur
e. Marital assault and rape
i. Half of states have abolished distinction between rape within marriage and
rape outside of marriage
ii. Indiana has abolished any explicit distinctions between marital rape and
non-marital rape
iii. Consider all the reasons for and against distinctions between marital and
non-marital rape.
f. Intra-family Torts
i. Historically courts barred almost all tort actions within the family
ii. Now spouses and often parents and children are generally permitted to sue
one another for negligence, battery, infliction of emotional distress, etc.
iii. Interspousal Tort Immunity
1. Bozman v. Bozman
a. The overwhelming weight of authority supports the
petitioners argument that the interspousal immunity should
be abrogated. Joining the many of our sister States that have
already done so, we abrogate the interspousal immunity rule, a
vestige of the past, whose time has come and gone, as to all
cases alleging an intentional tort.
iv. Many courts continue to believe that conduct within the family should be
judged by tort standards different from those governing harm caused by
strangers
v. The abolition of immunity does not mean that the existence of the marriage
must be ignored in determining the scope of liability. Hakkila v. Hakkila
vi. Feltmeier v. Feltmeier
1. 3 elements necessary to state a cause of action for intentional
infliction of emotional distress
a. The conduct must be truly extreme and outrageous

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b. The actor must either intend that his conduct inflict severe
emotional distress, or know that there is at least a high
probability that his conduct will cause severe emotional
distress.
c. The conduct must in fact cause severe emotional distress.


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Divorce and Dissolution of Families
Grounds for Divorce
I. Fault-Based Divorce
a. Background: Adultery was universally recognized as a ground for divorce and,
coupled with desertion, was the only grounds for divorce in many states until 1967
i. Some states also allowed physical cruelty as grounds for divorce
ii. Later mental cruelty and indignities were added
iii. The ultimate aim of divorce before the 70s was to vindicate the righteous and
punish the wicked.
b. Fault Grounds
i. Physical Cruelty
1. Das v. Das: Parties separated after 20yrs of marriage after a domestic
violence PO was granted to W
a. HELD: Where violence has been inflicted and threats have been
made, as in the instant case, a Court of Equity should not
hesitate to grant relied, especially where the facts indicate a
probability that violence might be repeated.
ii. Mental Cruelty
1. In some states, mental cruelty requires a showing of habitual,
continuous, permanent and plain manifestation or settled hate,
alienation, and estrangement on the part of one spouse, sufficient to
render the condition of the other intolerable.
iii. Adultery
1. All forms of sexual contact between persons of any gender generally
qualify as adultery justifying divorce.
iv. Desertion the willful abandonment of cohabitation for a sufficient period of
time, usually lasting at least one year.
c. Fault-Based Bars and Defenses
i. The bars and defenses seek to determine whether the party seeking a divorce
is guilty of misconduct that should preclude relief
1. Recrimination an affirmative predicated on the claim that both
spouses were guilty of off-setting faults
2. Provocation defense available to the respondent who claims his own
faulty conduct was reasonably provoked by the petitioners conduct.
3. Connivance like the entrapment defense in criminal law, connivance
bars relief if the party seeking the divorce is found to have
participated in manufacturing the fault upon which divorce is sought
4. Condonation rests on the idea that the fault ground raised in the
divorce has already been forgiven by the respondent and therefore
cannot be invoked to dissolve the marriage.
5. Collusion when the spouses conspire to manufacture grounds for
divorce.
II. No-Fault Divorce
a. Exclusive no-fault regimes the UMDA makes irretrievable breakdown of the
marriage the exclusive ground for divorce.

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b. Mixed fault/no-fault regimes most jurisdictions did not follow the UMDA and
instead simply added no-fault provisions to supplement their existing fault laws.
i. In these jurisdictions, a party seeking a divorce may elect whether to proceed
on fault or no-fault grounds
c. Living Separate and Apart
i. The UMDA was revised to permit no-fault divorce only where the court finds
that the marriage is irretrievable broken, if the finding is supported by
evidence that
1. The parties have lived separate and apart for a period of more than
180 days next preceding the commencement of the proceeding; or,
2. There is serious marital discord adversely affecting the attitude of one
or both of the parties toward the marriage.
ii. Frey v. Frey: See casebook p. 443
III. Annulment
a. Annulment Defined: a declaration recognizing that the marriage attempted by the
parties never came into existence at all because of a fatal impediment at the time of
the formation
b. Grounds for Annulment
i. To obtain an annulment, a petitioner must show that the marriage suffers
from a serious defect dating back to its inception rendering it void or
voidable
c. Effects of annulment
i. An annulment deems the marriage to have never existed and clears the way
for the parties to marry other persons, but traditionally could also have
resulted in very harsh consequences such as denying the any economic or
social protections to a destitute and defrauded wife.
ii. A child born during an annulled marriage was deemed retroactively
illegitimate
iii. Over the years many states have regularized relief by enacting statutes that
expressly authorize courts to provide alimony or property distribution in
cases of annulment.
Property Distribution
I. 2 basic property regimes that apply during marriage
a. Title theory/Separate property
i. Under this approach the spouse who holds title to each asset retains
ownership of it.
ii. Caveat any property bought during the marriage with money from a joint
account becomes marital property even if the property is in one spouses
name.
iii. 3 forms of title may be used to record shared ownership of real property:
1. Joint tenancy each tenant is the owner of the whole estate and of an
undivided part of the estate
2. Tenancy by the entirety the same as joint tenancy except that it is
reserved for married couples because it requires unity of person.

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3. Tenancy in Common each tenant has an equal right to possession,
but no right of survivorship.
b. Community property
i. Each spouse has a present, vested one-half interest in all property acquired
during the marriage.
ii. During the marriage, community property is distinguished from separate
property
iii. Separate property usually include property acquired by either spouse before
the marriage, or during the marriage by gift, bequest, or devise.
iv. Neither spouse may dispose of community property without permission
II. Division of Marital Property
a. 2 regimes govern property distribution at divorce, that lead to virtually
indistinguishable results.
i. Equitable distribution
ii. Community property
b. Most community property states require equitable rather than equal division of
assets at divorce.
c. 42 states and DC are equitable distribution jurisdictions at divorce.
d. Most states provide some guidance to trial courts through a list of relevant factors to
be considered
i. 2 basic but conflicting principles
1. property should be allocated in proportion to the spousal
contributions to its acquisition; and,
2. property should be allocated according to relative spousal need.
III. Property Regimes at divorce
a. 3 steps to division of property
i. Identifying and characterizing each asset
ii. Valuing each asset that is marital
iii. Distributing all divisible assets equitably or equally, or, in the alternative
ordering a monetary award from one spouse to the other to adjust their
financial positions in accordance with the courts decision.
b. Hotchpot/Kitchen Sink Jurisdictions (including IN)
i. 14 states have adopted the UMDA model which permits courts to consider
and divide all property owned by either or both spouses, REGARDLESS of
how or when it was acquired
ii. the terms hotchpot and kitchen sink capture the idea all assets belonging to
either spouse separately or to both spouses jointly are thrown into the pot
and are up for grabs.
IV. Characterizing assets
a. A spouse who seeks to show that property that appears to be separate should be
treated as marital bears the burden to show that its characterization has shifted so
that the separate property comes within the applicable statutes definition of
marital property
b. Commingling separate property becomes marital property if inextricably mingled
with marital property or with the separate property of the other spouse.

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i. If the separate property continues to be segregated or can be traced into its
product, commingling does not occur.
c. Transmutation occurs when separate property is treated in such a way as to give
evidence of an intention that it become marital property
d. What constitutes a gift?
i. Commingling and transmutation share the underlying rationale that merging
separate property into joint property creates a rebuttable presumption of a
gift to the marital estate.

V. Steps in Property Allocation
a. Identify all property and liabilities
i. Do it through discovery. There are some things the spouses will just know.
But there are some spouses who will have assets they dont reveal to their
spouse.
ii. For our purposes, we dont need to know the complexities of ERISA, etc.
b. Classify every piece of property as marital or separate.
i. Source of funds? Comingling or transmutation?
ii. Consider and classify appreciation of separate property.
c. Value the marital Property.
d. Distribute equitably or equally.
VI. Appreciation of Separate Assets
a. Middendorf v. Middendorf (CB 491)
i. Issue: Examining the legal standards for determining when appreciation in
separate property becomes marital property for purposes of the division of
property in a domestic relations case.
ii. if there is some competent, credible evidence that there was an increase in
the value of the stockyard during the marriage and that the increase in the
valuation was due to labor, money, or in-kind contributions of either Max or
Pat, or both, the increase in valuation is classified as marital property and
subject to division.
b. Timing and Valuation
i. Indiana: Any time between filing of petition and hearing works.
ii. Some states, point of legal separation
iii. some at petition
iv. some at trial
v. some at final decree
vi. some, like IN, are at trial court discretion
vii. *If its discretionary, its my job to find out which is best for my client and
advocate.
VII. New Property: Professional Licenses, Professional Degrees, and Future Earning Capacity
a. Holterman v. Holterman (CB 504): Early case in which the court values a medical
degree as marital property
VIII. Debts
a. Liabilities accumulated during marriage are also marital property subject to division
b. Liabilities include indebtedness created by borrowing, business debts, and
obligations under contracts and judgments.

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IX. Bankruptcy
a. Before the Bankruptcy Reform Act of 2005, post-divorce payments to settle the
distribution of marital property were fully dischargeable in bankruptcy
b. As of Oct. 2005, federal law provides that domestic support obligations shall NOT be
dischargeable in bankruptcy.
X. Other Common Forms of New Property
i. Pension Plans every jurisdiction treats an employer-sponsored retirement
plan as a marital asset
ii. Stock options stock options are marital property to the extent that they
constitute deferred compensation for work performed during the marriage.
iii. Business Goodwill and other small business issues goodwill is the gap
between book value and actual value business goodwill is generally
regarded as a divisible marital asset, but it is difficult to measure with any
precision.
iv. Shares in closely-held corporations
v. Personal injury: disability pensions and tort recoveries
vi. Lotteries a lottery prize won during a marriage is generally considered
property acquired during a marriage subject to equitable distribution.
XI. Indiana Distribution (refer to statute)
XII. Equitable Distribution
a. Factors which are relevant to the equitable division of marital property include:
i. The length of the marriage
ii. Any prior marriage of either party
iii. The age, health, station, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the parties
iv. The contribution by one party to the education, training, or increased
earning power of the other party
v. The opportunity of each party for future acquisitions of capital assets and
income
vi. The sources of income of both parties, including, but not limited to, medical,
retirement, insurance, or other benefits
vii. The contribution or dissipation of each party in the acquisition, preservation,
depreciation, or appreciation of the marital property, including the
contribution of a party as homemaker
viii. The value of the property set apart to each party
ix. The standard of living of the parties established during marriage
x. The economic circumstances of each party, including Federal, State, and local
tax ramifications, at the time the division of property is to become effective.
1. The Federal, State, and local tax ramifications associated with each
asset to be divided, distributed, or assigned, which ramifications
needs not be immediate or certain
2. The expense of sale, transfer, or liquidation associated with a
particular asset, which expense need not be immediate or certain
3. Whether the party will be serving as the custodian of any dependent
minor children

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Child Support
I. Nature of the obligation
a. The Source of the Obligation
i. State ex rel. Hermesmann v. Seyer
1. 17 year-old-babysitter and 13-year-old boy that she babysits have a
daughter together
2. The girl pled guilty to contributing to a childs misconduct
3. A petition was filed for the court to determine paternity and order the
boy to reimburse child services for the cost of services already
provided
4. Held: This states interest in requiring minor parents to support their
children overrides the states competing interest in protecting
juveniles from improvident acts. The minor child produced by the
relationship is entitled to support from both her parents regardless of
their ages.
II. Support past minority[higher education support]
a. Support during post-secondary education
i. At least 20 states have statutes authorizing courts to order that parents
provide children support until graduation form high school and for at least
some part of higher education completed within a few years thereafter.
b. Support for disabled adult children
i. Hastings v. Hastings: The right to support belongs to the mentally or
physically disabled adult child whose disability began prior to the age of
majority, and the duty of support lies with both parents, throughout their
lives.
III. Income: means actual gross income of the parent if employed to full capacity or potential
income if unemployed or underemployed.
IV. Imputing Income
a. The court may impute income to a parent who voluntarily remains unemployed or
underemployed
b. The courts must decide whether the obligor acted in good faith or whether the
obligors diminished income resulted from efforts to shirk obligations to the child,
or from other wrongdoing
c. Shirking an employment decision to reduce or forgo income that is both voluntary
and unreasonable under the circumstances.
d. Earning capacity
i. The ability to work, including such factors as age, occupation, skills,
education, health, background, work experience and qualifications
ii. The willingness to work exemplified through good faith efforts, due diligence
and meaningful attempts to secure employment; and
iii. An opportunity to work which means an employer who is willing to hire
V. Seek Work Orders
a. Sometimes issued before imputing income
b. Directs the obligor parent to search for employment to produce or add to income.
VI. High-income obligors In some jurisdictions the courts will extrapolate the guidelines up
to the income level to compute child support

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VII. Modification to Child Support Award
a. A parent may seek downward modification of his or her payments, or upward
modification of the other parents payments
b. Agreements prohibiting modification are unenforceable
c. UMDA the strictest standard
i. Modification only upon a showing of changed circumstances so substantial
and continuing as to make the terms unconscionable
ii. E.g. the Iowa statute only requires substantial change of circumstances for
modification
d. Applying the general change of circumstances standard
i. Most states require only a substantial or material change of circumstances in
the childs needs or the parents ability to provide support.
ii. Material change the occurrence of something which, had it been known to
the dissolution court at the time of the initial decree, would have persuaded
the court to decree differently.
iii. Statutory guidelinesTo be considered are changes in:
1. employment, earning capacity, etc.
2. Inheritance, etc.
3. Medical expenses
4. Needs
5. Health
6. Residence
7. Remarriage
iv. Determining whether the change in circumstances is substantial
1. In re Marriage of Nelson (CB 626): Iowa modification case
e. Imputing income on modification
i. In re Marriage of Pollard (CB 635): Finding that the trial court erred in not
finding that the mother was not voluntarily underemployed
VIII. Enforcement of Child Support Orders
a. Federal and State enforcement
i. Family Support Act of 1974: Created the Child Support Enforcement Program
a federal-state partnership under which each participating state would
designate an agency to help custodial parents located non resident parents,
establish paternity where necessary, and establish, enforce, and modify child
support obligations
ii. PRWORA Personal Responsibility and Work Opportunity Reconciliation Act
: Requires states to provide that a signed voluntary acknowledgement of
paternity establishes paternity without need for further judicial or admin
action after a short period for rescission
IX. Who does not pay?: Deadbeat Parents Punishment Act of 1998 created a rebuttable
presumption that a parent prosecuted for nonpayment can pay the obligations due

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Maintenance
I. Alimony was the traditional term that related to the old ideas related mostly to the wifes
dependence on her husband
II. UMDA changed the term Alimony to Maintenance maintenance was only available to the
spouse who had an inability to meet his or her reasonable needs through appropriate
employment.
a. Maintenance was intended to be temporary support until the recipient could
become self supporting
III. Justifications casebook pp. 548-552
a. The Fault-Based Justification
b. The Need-Based Justification
c. The Contract Justification
d. The Partnership Justification
e. The Restitution Justification
f. The Reimbursement Justification
IV. Kinds of Alimony
a. Temporary Alimony (alimony pendent lite) the dependent spouse receives support
while the parties are litigating to determine their respective rights and obligations.
Based overwhelmingly on need. Specifically so that the dependent spouse with be
supported during the divorce.
b. Final Awards
i. Rehabilitative Alimony (transitional/short term alimony) support is
provided for a definite period while the recipient seeks to become self-
supporting.
ii. Reimbursement Alimony the spouse whose financial contributions during
the marriage directly enhanced the other spouses earning capacity is
awarded compensation.
iii. Bridge-the-gap Alimony (limited-duration) recognized by a few states
provides necessary funds to bridge the gap between married and single
status.
iv. Permanent, indefinite, or periodic Alimony the spouse receives support for
an undefined duration, awarded in periodic installments, to take effect from
the final order of dissolution until either partys death or the recipients
remarriage. An award of this type is the exception, not the rule.
c. Lump sum Alimony a single payment subject to modification. An attractive option
in non-litigious divorces because it allows immediate financial settlement.
V. Income Equalization
a. In re Marriage of Reynard: W argues that her monthly maintenance should be
approximately doubled from the original award to equalize the parties net
disposable income.
i. Held: the court affirms the trial court because the parties do not have
disparate earning capacity. When former spouses have grossly disparate
earning potentials, the goal of financial independence may not be achievable

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because of the dependent former spouses inability to maintain the standard
of living shared during the marriage.
Child Custody and Parenting Time
I. Historical evolution
II. The tender years doctrine infants and very young children should be placed with their
mothers, unless she was unfit to care for them
a. Children beyond the tender age were placed with the parent of the same sex
b. In the 70s and 80s courts began to hold the doctrine unconstitutional and that it did
not serve the best interests of the child
i. Watts v. Watts held that a persistent preference for mothers violate fathers
rights
III. Psychological Parent
a. Designed as a solution for its authors criticism of the best interests of the child
standard
b. Based on attachment theory
c. 4 foundational principles
i. the psychological parent model
ii. the childs need for continuity of relationships, surrounding and
environmental influence
iii. emphasis on the childs sense of time, characterized by urgency and the need
for quick resolution of legal disputes
iv. replace the best interests standard with the least detrimental alternative
defined as the specific placement and procedure for placement which
maximizes, in accord with the childs sense of time and on the basis of short
term predictions given the limitations of knowledge, his or her opportunity
for being wanted and for maintaining on a continuous basis a relationship
with at least one adult who is his psychological parent
IV. Best Interests of the Child: Contemporary Interpretations
a. UMDA 402
i. The court shall determine custody in accordance with the best interest of the
child. The court shall consider all relevant factors including:
1. The wishes of the childs parent(s) as to his custody,
2. The wishes of the child as to his custodian
3. The interaction/interrelationship of the child with his parent(s),
siblings, and any other person who may significantly affect the childs
best interest
4. The childs adjustment to his home, school, and community
5. The mental and physical health of all individuals involved
ii. The court shall not consider conduct of a proposed custodian that does not
affect his relationship to the child.
b. ALI 2.08
c. Gender Roles/Careers
i. Young v. Hector: H appeals contending abuse of discretion in awarding
custody to W; H contends it was gender bias

19

1. Held: affirms the appointment of W as the primary custodian
considering economic stability, consistency of influence in kids lives,
and anger control
d. Siblings and Religion
i. Arthur v. Arthur: court sends boys with dad and girls with mom; boys
interested in after school activities that church didnt offer; court didnt focus
on keeping the kids together
e. Domestic Violence
i. Wissink v. Wissink: The teenage daughter had a clear preference for living
with H who had a history of domestic violence towards W.
1. NY totality of the circumstances factors:
a. Quality of the home environment and parental guidance
provided
b. Ability of each parent to provide for the childs intellectual and
emotional well-being
c. Financial status of each party
d. Relative fitness of each party
e. Length of time that the existing custody petition has been in
effect
2. Up to legislature to determine standard for who gets custody in DV
cases
ii. IN 31-17-2-8(7) requires there be a pattern of domestic violence.
V. Joint custody
a. Joint Legal Custody confers on both parents shared decision-making on important
issues relating to the childs upbringing, such as medical care, education, and
religion.
i. generally confers on both parents shared day-to-day decision-making and
responsibility for their children, and the right to have the children divide
their time roughly equally between both homes.
VI. Post-dissolution disputes
a. Collapse of Joint parenting
i. Nicita v. Kittredge: parents disagreed on religion; moving school districts;
listing stepdad on forms; switching therapists; scheduling Hebrew school
stuff
1. Held: court upholds already standing order and just helps parents get
along and make decisions together;
a. court aligns financial incentives bettermore expensive
options taken by one parent dont have to be spilt by both
parents
VII. Visitation
a. The Fit Non-custodial Parents right to visitation
i. Visitation is generally thought to be the right of any fit non-custodial parent,
and is also believed to promote healthy child development
ii. Parents generally have a right to visitation with their children unless
visitation would be detrimental to the best interest of the child.
b. Third-party visitation

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i. Troxel v. Granville (grandparents who wanted visitation)
1. Issue: Whether a state statute that permits any person to petition for
visitation rights and permits the court to grant such visitation right
violates the Due Process Clause of the 14
th
Amendment.
2. Held: The Due Process Clause does not permit a state to infringe in the
fundamental right of parents to make childrearing decisions simply
because a state judge believes a better decision could be made
unless parent is unfit
ii. De Facto Custody
1. V.C. v. M.J.B.
a. Issue: What legal standard applies to a 3
rd
partys claim to joint
custody and visitation of her former domestic partners
biological children, with whom she lived in a familial setting
and in respect of whom she claims to have functioned as a
psychological parent.
b. Court split: just a recognition of de facto parenting
c. Factors in determining a de facto parent (NJ common law)
i. Biological parent consented to or fostered formation
and establishment of parent-like relationship
ii. De facto parent lived in the same home as the child
iii. De facto parent took on significant responsibility for
care, education or development of the child (w/o
expecting financial compensation)
iv. A parent-child bond is formed
2. De facto custodian: person who has been the primary caregiver for
and financial supporter
3. IN 31-9-35.5 (on de facto parent)
4. IN 31-17-2-8.5 (what applies when court finds de facto custodian for
kid)
VIII. Modification
a. To modify a custody arrangement, a trial court in most states must find:
i. That circumstances have changed substantially since the original decree was
entered; and,
ii. That the change in custody will serve the best interests of the child.
b. IN: IC 31-17-2-21 & IC 31-17-2.2
IX. Relocation
a. Presumptive Right approach established a rebuttable presumption that custodial
parents have a right to relocate and do not, as a threshold matter, need to convince a
court that their reasons for moving are sound.
b. The ALI principles issued in 2002 presume that a parents relocation does not
constitute a substantial change in circumstances permitting modification of
custodial arrangements unless the relocation substantially impairs either parents
ability to exercise responsibilities the parent has been exercising or attempting to
exercise under the parenting plan.

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c. Baxendale
i. Procedure of Relocation
1. must file an intention to relocate (even if it is just down the street)
2. must notify anybody who has visitation or partial custody for the child
3. if the notice of intent to move is served on father, but he doesnt do
anything about it, mother has the right to move
4. if the non-custodial parent opposes the move, they need to file
something that says they do not approve of the move. They must also
file for a change in custody
d. IN 31-17-2.2
Private ordering
I. 3 basic types of contractual agreements affecting marital rights and obligations
a. Pre-marital agreements
b. Post-nuptial agreements by spouses NOT contemplating divorce
c. Separation agreement
II. Uniform Premarital Agreement Act see casebook p. 865
III. Mallen v. Mallen
a. 3 factors to be considered in deciding the validity of a prenuptial agreement
i. Was the agreement obtained through fraud, duress, or mistake, or through
misrepresentation or nondisclosure of material fact?
ii. Is the agreement unconscionable?
iii. Have the facts and circumstances changed since the agreement was executed
so as to make its enforcement unfair and unreasonable?
IV. In re Estate of Hollett
a. Facts: engaged a couple of years out from wedding; hes much older and much
richer; shes young, uneducated, and inexperienced; she says no to the prenup that
far out, but he presents her with the prenup two days before the wedding saying he
wont marry her w/o it; she signs the prenup the morning of the wedding. New wife
and her mom are bringing the claim against ex-wife (bc they are part of his estate);
Wife claims that the prenup is void because all the iffyness
b. If she gets the prenup not to be enforced, she may automatically get 50% of the
estate if there was no will.
c. Held: prenup not enforceable
Alternative Dispute Resolution
I. Negotiation 920-930
II. Mediation 937-939
III. Arbitration 955-958
IV. Collaborative law 963-967

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