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Family Law
Higdon - Spring 2014
Introduction
Marriage is a legal status
Why does the state want to regulate family units?
o Property transfers
o Taxation
o Family unit stability helps make a stable society
o Police power
Marital Agreements
History
o Premarital and prenuptial are the same thing
o Used to not be enforceable, but were allowed concerning inheritance rights.
E.g., man had kids from a prior marriage and wanted to make sure everything went to his children and not his
second wife
State did not want prenups because they thought it encouraged divorce
In the 70s that changed.
Getting closer to gender equality, women getting their own stable income
Sexual revolution and wanting multiple partners.
Divorces became more acceptable in society
Co-habitation.
o Made marriage more appealing for people who were cohabiting because they could divide their property just as easily. Many
people didnt want to get married because of the property division.
A premarital agreement is valid if:
o (1) it provides full disclosure
This does not mean detailed disclosure.
A spouses knowledge of the other spouses financial status can serve as a substitute for disclosure.
o (2) it is fair and reasonable; and
The modern trend in some places remove the fair and reasonable requirement
o (3) it is entered into voluntarily by both parties
no fraud, duress, coercion, or overreaching.
o Other requirements:
Offer
Acceptance
Capacity
Statute of frauds
Consideration
In general, a premarital agreement will be enforced against an individual who entered into it freely, without fraud, duress, coercion,
or overreaching, and if that individual had either full disclosure or knowledge of other spouses property before entering into the
agreement.
o Some states scrutinize the reasonableness of the agreement when it was entered into or at the time of the marriage ends in
death or divorce.
o States also take different positions on whether married couples may enter into postmarital agreements regarding their
property and support rights.
Simeone v. Simeone, 581 A.2d 162 (Pa. 1990) [Strict Contract Approach]
o Prenuptial agreements are contracts, and as such, should be evaluated under the same criteria as are applicable to other
contracts.
o The knowledge of the parties and the reasonableness of their bargain, is inappropriate. Prenuptial agreements are contracts,
and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud,
misrepresentation, or duress, spouses should be bound by the terms of their agreements.
o However, the parties to prenuptial agreements are in relationships of mutual confidence and trust that calls for a disclosure
of their financial resources. The disclosure need not be exact so long as it is full and fair. Parties are in a confidential
relationship.
Notes
In contract law, there is a presumption that people will act rationally when dealing financially, but in family law,
people act more emotionally and may not act rationally. That is why there is a higher duty of disclosure that is
irregular to contract law.
The wife knew of the prenup well in advance, so the court did not believe that she was under duress by signing it on
the eve of the wedding.
Some courts allow for change in circumstances. There is some concern that this causes too much uncertainty.
States interest in prenuptial agreements
o Parties in a prenuptial agreement can be left high and dry.
o State does not want to have to provide for these people.
o Lots of time can lapse before a prenuptial agreement comes into play, so it needs to be more scrutinized.
o The people entering into the agreement are not in the best position to look after their economic interest, because they are
thinking with their hearts and not their heads.
Agreements Concerning Inheritance Rights
o A premarital agreements must clearly address inheritance rights in order to be effective as a waiver of these rights
Postnuptial Agreements
o Many states allow married couples to enter into contracts concerning their property and finances in the event of divorce.
o The test for enforceability of postnuptial agreements is similar to that applied to prenuptial agreements.
o In some states, they are not enforceable or are subject to a more strict review.
Statute of Frauds
o Prenuptial Agreements are subject to the statute of frauds
o Requires promises made in contemplation of marriage, other than promises to marry, to be in writing and signed by the party
to be charged.
o A couples oral prenuptial agreement to keep their finances separate, fully performed during the marriage, was enforced
under the part-performance exception to the statute of frauds.
Uniform Premarital Agreement Act 6
o (a) A premarital agreement is not enforceable if the party against whom enforcement is sought provides:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable (substantively unfair) when it was executed and, before execution of the
agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other
party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or
financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other party
(b) If the provision of a premarital agreement modifies or eliminates spousal support and that modification or
elimination causes one party to the agreement to be eligible for support under a program of public assistance at the
time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other
party to provide support necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
o Easier to proceed under voluntariness.
o Factors for Voluntariness include:
Lack of coercion, intimidation, or undue pressure
Some measure of knowledge of the terms of the agreement and the property affected
The timing of the agreement in relation to the wedding
Adequate opportunity to consult with independent counsel
Relative sophistication of the parties
Sufficient disclosure of assets
Changes in Circumstances and Spousal Support
o Some courts consider whether enforcement of a premarital agreement would be unconscionable based upon circumstances
existing at the time of a divorce
o Under UPAA, there is a limited set of circumstances, where one party would qualify for govt assistance
o Some states have not adopted UPAA, and have more liberal standards, but they say that the circumstances have to be
unforeseeable.
Choice of Law
o To assure that the law of a particular state will govern the agreement, the drafters can include a choice of law provision,
which usually will be given effect.
UPMAA Scope of Marital Agreements
o Courts are hesitant to enforce agreements dealing with support or other conduct during the marriage. This reflects courts
unwillingness to adjudicate marital disputes.
Before parties are married, they can say they arent going to do it, but during marriage, there can be undue pressure
because they can threaten to divorce you.
o Cant affect the right to child support.
o An agreement may provide for such matters as choice of abode, freedom to pursue career opportunities, upbringing of
children, etc.
o A term in premarital agreement or marital agreement which defines the rights or duties of the parties regarding custodial
responsibility is not binding on the court. This is decided in the best interest of the child
o You can add any type of provision you want (order of housework done, sex, etc.) but the court isnt going to get into that
stuff. They are not going to be able to be enforced.
KNOW
o History
o Common law
o Know how it is not as stigmatizing as it once was because of the 70s (60s?) and the sexual revolution
o 3 approaches
Strict contract approach
UPAA approach with some change in circumstances
Liberal approach that allows for a broad change of circumstances where the change is unforeseeable.
o Bottom line How removed from contract law do we want to get and why for policy reasons?
o Reasons we treat these agreements differently
Subject matter state has an interest in the division of property and well-being of individuals (because they dont
want to take care of people left high and dry)
Not usually done at arms length, people do not behave rationally and are not thinking about economic interest
These agreements do not come into play until many many years in the future if at all. These are reasons why courts
may stray away from the strict contract approach
A few things that should go into a good agreement (Not exhaustive)
o Recommend an attorney
o Tell them to go get whoever they want and reimbursement on the legal fees
o Give them as much time as possible to review the doc. Dont spring it on them last minute. Higdon said he would give 6
months. The most lenient statute he has seen was 30 days.
o Choice of law provision
o Full disclosure
o Give her enough money so the court cant say the agreement is unconscionable
o Document all discussions
o Put something in the agreement that you know they are going to want to get change (something small). This way they will
come back and you can change it. That way it is shown that you changed everything they wanted to be change. Makes you
look reasonable
Individuals sometimes argue that cohabitation relationships that are accorded legal effects in other countries, such as
concubinage in Mexico, should be recognized as common law marriage in the US. Courts have consistently refused to do this
unless the legal status under foreign law confers all the rights and benefits of marriage.
Notes
o
o
o
Cohabitation Relationships
Introduction
o Things became more liberal in the 60s
o Cts. Thought this might encourage marriage because its not as much of a commitment.
o Types of Jurisdiction
No cohabitation agreements
Expressed cohabitation agreements
Implied cohabitation agreements
Agreement doesnt matter, does the relationship look marriage like? Metricious relationship.
So in the above case, he wasnt buying the property for himself, he was buying it as a trustee for the two of them.
Restitution-Based Remedies
o In many cohabitation cases, courts have required compensation for one partys financial investments in the others property
or business
o Courts also routinely order recovery in quantum meruit for services such as work for a partners business or on home
construction and renovation.
o Courts have generally refused to order compensation for such contributions as household services, paying household
expenses, raising or supporting children or stepchildren, or assisting with a partners career.
Gormley v. Robertson
o meretricious relationship doctrine applied to same-sex couples;
o Meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful
marriage between them does not exist; factors establishing a meretricious relationship include:
continuous cohabitation;
duration of the relationship;
purpose of the relationship;
pooling of resources and services for joint projects, and
the intent of the parties.
o Substantial evidence supported finding in property dispute between same-sex domestic partners that $40,000 was spent from
joint accounts on property retained by one woman and that this woman would be unjustly enriched if she were allowed to
retain all the property and to be liable for only half of the credit card debt, where evidence showed that women commingled
their funds, made joint purchases, and incurred debt.
o Notes
In this case, meretricious means a relationship that looks marriage-like.
So while other states look at the agreement, Washington looks at the relationship to see if it looks marriage-like.
The argument against this was that the relationship has to be marriage-like, and at that time same-sex couples
couldnt get married so its not marriage like. The court rejected this, because it said that one of the characteristics
about these types of relationships is that they know that they are not married.
Big takeaway is that instead of looking at contract, look at the relationship itself instead.
Notes
o Some states are broad and allowed expressed, expressed written, and implied contracts. Other states are narrow, and others
dont allow these types of contracts.
o You can enter into an agreement to keep things separate. Sort of like a reverse Marvin
o Short of not making an expressed agreement dont buy property together, dont comingle funds, dont hold yourself out as
married, etc. if you dont want to be liable to the person from cohabitation agreements. To fully protect yourself, you have to
make an express agreement, which doesnt make a healthy relationship. In some way, this encourages marriage with a
prenup.
o The fear that was produced by Marvin really hasnt been warranted because a lot of states dont allow implied agreements.
o Tennessee only allows expressed agreements.
o
o
Background: This case was important because limiting the children poor had can help them economically.
Not having sex is just unrealistic. In addition, some married couples have complications in pregnancies &
there is a fear that comes along with a pregnancy if they could not prevent it with birth control.
The State was concerned with adultery, but the court said that the State has laws against adultery and
fornication so that is already safe-guarded.
Loving v. Commonwealth of Virginia (1967)
The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial
discriminations. Under the Constitution, the freedom to marry or not marry, a person of another race resides with the
individual and cannot be infringed by the State.
Notes
Unconstitutional to prohibit interracial marriage under 14th Amendment Due Process and Equal Protection
grounds
Equal Protection
o Similarly situated parties have to be treated equally.
o For race, strict scrutiny applies.
o The right to marry the person of your choice is a fundamental right, so strict scrutiny applies.
o The reason this is such an important distinction is that, if the right is the right to marry the person
of your choice, then it gives a lot of ground to same sex marriage.
o Side Note: The law only really being applied to whites, so it was not equally applied. The laws
purpose was to keep the white race pure. Thus, it was not being applied equally to equally situated
people so it was unconstitutional.
Why Gender is only intermediate scrutiny and race is strict
There is a lot of stuff in the constitution that where things are left for a vote. Thus, minority groups have a harder
time representing themselves, so we are going to review restrictions against them more.
On the other hand, women are at least half the population.
The reproduction cycle is different for men and women, therefore there is more of a need for a difference in law??
More wiggle room to uphold law.
Equal Protection and Due Process Clause
The Loving decision concluded the Virginia law enacted a racial classification that violated the Equal Protection
Clause, and that it infringed the Lovings fundamental freedom to marry in violation of the Due Process Clause.
Right to Marry
Zablocki: Statute that denied right to marry to those who owed child support was unconstitutional because marriage
is a fundamental right. However, Court left caveat that reasonable regulations that so not significantly interfere with
decisions to enter into the marital relationship may legitimately be imposed.
Turner: Prison regulation that required inmates to gain the prison superintendents permission to marry was
unconstitutional. Court held that the regulation was too broad to be sustained by the states legitimate security and
rehabilitation concerns.
Eisenstadt v. Baird (1972)
Doubt arose after Griswold as to how far the Supreme Court might extend Griswolds reasoning with regard to
unmarried persons. This doubt stemmed from the Courts emphasis in Griswold on a right to marital privacy.
The U.S. Supreme Court held that unmarried persons have a constitutional right of access to contraceptives.
Rationale: Equal protection clause of the 14th amendment: Extending the reasoning of Griswold, the Court finds
that the statute violates the Equal Protection Clause by providing dissimilar treatment for those persons
(married/unmarried) who are similarly situated. The Court said:
Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for
the unmarried and the married alike.
The Court rejects both of the proffered state interest
o deterrence of premarital sex: The Court said it would be plainly unreasonable to assume that
Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for
fornication. There was also already a law against fornication, which was a misdemeanor, but the
law here was a felony and pretty much superseded the fornication law.
o the promotion of health: The Court rejected the health measure rationale by pointing out that
federal and state laws regulate the distribution of harmful drugs. In addition, most contraceptives
arent dangerous. If you are so concerned about the health risk, why are you allowing it for
married couples?
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The majority view is that a second or subsequent marriage of a person is presumed to be valid; such a
presumption is stronger than and overcomes or rebuts the presumption of the continuance of the previous
marriage, and that the burden of proving the continuance of the previous marriage, and the invalidity of the
second marriage, is upon the party attacking the validity of the second marriage.
Every reasonable possibility of validity must be negative, and the evidence to overcome the presumption of
validity of the subsequent marriage must be clear, strong, and satisfactory and so persuasive as to leave no
room for reasonable doubt. In other words, the burden of proving that a divorce has not been granted to
either party to a former marriage is substantial and is not met by proof of facts from which mere inferences
may be drawn.
Notes
Subsequent marriage presumption: we will presume that the last marriage is valid. The presumption can be
overcome if the party attacking the party by clear and convincing evidence that the parties were married
and never divorced. The party has to go to every county court house he could have gone to divorce her and
prove that a divorce was never made.
This is one of the strongest presumptions in the law.
If we find the first marriage as the valid marriage, then he would have had more children in wedlock. If we
find the earlier marriage valid, then the later marriage is invalid and therefore there are more children out of
wedlock. Messes up inheritance rights
The rationales are: Posted on TWEN
o (1) innocence
o (2) morality
o (3) legitimacy of offspring
Removal of Impediments
Most courts take the position that if a married couple begin living together when there is an impediment to their
marriage, usually a prior existing marriage, and they continue to live together after the impediment is remove, as by
divorce or death, a common law marriage results if wither or both parties had begun living together in a bona fide
ignorance of the impediment.
In states that do not recognize common law marriage, the same result may be reached through statutes or judicial
decisions.
After removal of impediment where there is at least one spouse is ignorant of the impediment, it will convert into a
common law marriage.
Presumptions in Favor of Marriages
Once a marriage has been proved, various presumptions flow from this fact:
Marriage was contracted in good faith;
It was performed by a person having authority; and
Parties have capacity to marry
In other words, the marriage is presumed valid, and the party attacking it has the burden of proving it invalid.
Gomez v. Windows on the World
Man died in 2011 World Trade Center attack. He was married to a woman in Colombia before he went to the U.S.,
where he married the claimant. Escalante had evidence that her divorce to her first husband was valid and shown
where her and Gomez never got a divorce.
Court held that Escalante met her burden of proof to show that her first marriage ended in divorce and her second
marriage was valid. Thus, she is entitled to the benefits and the claimant is not.
Notes
Person who is attacking subsequent marriage must show that:
o (1) they were validly married; and
o (2) they were never divorced.
Notice in a case like this where the man continues contact with the women, there court is more likely to
rule in favor of the prior spouse.
In the United States, there is no nationally registry for marriages and divorces, but in Colombia they do
have such a registry.
Two things to take away
o (1) party expectations that the party still believes they are married, court less likely to apply the
presumptions.
o (2) notice how the presumption is the product of the USs lack of a national registry system.
Dolan v. Celebeze
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(3) Due Process: A fundamental Right that has been deprived, the right to marry. The problem with that is
whether it is a right to marry, or the right to marry the person of your choice.
immutable
For example, you can change your religion but this is repugnant to ask you to do so.
This is relevant because depending on whether homosexuality is immutable might bump it from
intermediate to strict scrutiny.
Level of Scrutiny for homo-sexuality
Strict
o Argument for this is that they are a small subsection of the population
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Some gay couples dont want to have kids so they are being denied their rights too, so
its overly broad.
Religion
o This isnt a legal argument
o Court goes out of its way to state that this will not impact churches and force them to marry gay
couples.
Its Tradition
o Just because something is tradition doesnt mean that it is discriminatory.
o By allowing tradition as a governmental interest, its a circular argument and allows the
discrimination to stand as the basis for its own existence.
Conservation of tax resources
o Against: excluding anyone will conserve resources
Slippery slope
o Allowing gay marriage will open the door to bigamy, bestiality, etc.
Quasi-suspect
A class subject to intermediate scrutiny
Abortion
Introduction
o Reasons abortion supporters feel its important to be able to have an abortion:
Rape
Incest
Health complications for the mother
Mental or physical deficiency in the child
Poor environment to raise a child
Might not be able to support it.
Might not be able to take maternity leave from work and might hinder their advancement in their career.
o It used to be generally accepted that you could not have an abortion when the baby started quickening (meaning when it
started to move).
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Roe v. Wade
o a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion,
but that right must be balanced against the state's two legitimate interests in regulating abortions:
protecting prenatal life; and
protecting women's health.
o Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by
tying state regulation of abortion to the trimester of pregnancy.
o A criminal abortion statute like Texass that excepts from criminality only a life-saving procedure on behalf of the mother,
without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process
Clause of the 14th Amendment.
(a) for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must
be left to the medical judgment of the pregnant womans attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to
maternal health.
(c) for the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it
chooses, regulate, and even forbid, abortion except where it is necessary, in appropriate medical judgment, for the
preservation of the life or health of the mother.
The state may define the term physician and whether they must be licensed in the state and may prohibit any
person who is not a physician from performing the procedure.
Notes
In Planned Parenthood of Southeastern Penn. v. Casey
o the Court reaffirmed the essential holding of Roe while abandoning its rigid trimester
framework.
o The Court emphasized that states have a legitimate interest in protecting the life of the fetus and
held that only where the state regulation imposed an undue burden on the womans decision to
have an abortion would the regulation be unconstitutional.
o Undue burden is where the state regulation has the effect or purpose of placing a substantial
obstacle in the path of the woman seeking an abortion of a nonviable fetus.
o Although the Court rejected the trimester framework in Roe, it retained the distinction between
nonviable and viable fetuses, holding that a woman should be free to terminate her pregnancy
before viability.
o Notes
Right to Privacy
Roe is different than Griswold (right to privacy) and Eisenstadt (individual holds the right) because those
were based on search and seizure. Roe holds that the right deals with the womens right to do with her body
as she so pleases. This, however, is not an absolute right
The state has two legitimate interests:
(1) protecting the mothers help
(2) protecting prenatal life
The 14th Amendment is giving rights to persons, and here they do not consider the unborn yet a person. They come
to this conclusion because they state that the Constitution uses the word person as someone who already exists.
The Court stated that:
Under criminal law, if they were a person, it would be punished like murder
Under property law, a person unborn cannot inherit from the father.
Trimester Framework
First
o Cant restrict it because the fetus isnt viable at this point
o Can regulate it for the health of the mother.
Second
o Can regulate and restrict so long as it is related to the mothers health.
o E.g., if a procedure that came out that has a higher danger risk, they can say that its not allowed.
o Basically like the first trimester but can do more.
Third
o Can restrict except where necessary to protect the mothers health.
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Michael H v. Gerald D
o A child born to a married woman living with her husband is presumed to be a child of the marriage.
o Facts: wanted to establish his paternity of a child born to the wife of another man, and the claim that it infringes upon the
constitutional
In Michael H., Carole D. gave birth to a child, Victoria, while she was married to Gerald D., who was listed as the
father on the birth certificate and held Victoria out as his daughter. Shortly after the childs birth, Carole informed
Michael H., a neighbor with whom she had conducted an adulterous affair, that he was the father. For a several year
period during Victorias first three years, Carole and the child lived with Michael and blood tests indicated a 98.07%
probability that Michael was Victorias father. Michael also held the child out as his own. After Carole parted with
Michael, he filed a filiation action to establish his paternity and sought visitation with Victoria. Gerald, who had
reconciled with Carole, intervened in the action, claiming, on the basis of the statutory conclusive presumption, that
he was Victorias father.
o Opinion
At the United States Supreme Court, Michael argued that his substantive due process rights were violated because
he had established a parental relationship that constituted a constitutionally protected liberty interest.
The United States Supreme Court upheld the California statute that provided that the issue of a wife
cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the
marriage. The presumption could be rebutted by blood tests only if the husband made a motion within two
years from the childs birth or, if the biological father had filed an affidavit acknowledging paternity, by the
wife.
The Court rejected his argument, concluding instead that the marital family is the unit to be protected from
claims of third parties, such as Michael, and that the California legislature was free to select that entity as
the one to protect.
In a persuasive dissent, Justice Brennan, joined by Justices Marshall and Blackmun, argued that the plurality opinion
conflicted with the Courts earlier opinions that protected established parent-child relationships between unmarried
fathers and their children.
The right not only has to be fundamental, but it also be an interest traditionally protected by our society. The interest
here is the interest of an adulterer to come forward and have an interest in the child. Often in Constitutional law is all
about how you define the right.
o Notes
Because the Supreme Court merely upheld the then-existing conclusive statutory presumption of paternity, but did
not mandate it, the majority of states have adopted a rebuttable presumption of paternity based on marriage.
The effect of this is to place the burden of persuasion on a person asserting that the child is illegitimate. It is
generally a strong presumption that may be rebutted only be clear and convincing or even more persuasive
evidence.
However, those states still face questions regarding the circumstances under which the presumption may be
rebutted.
Some states have required a putative father seeking to rebut the presumption to demonstrate that the best
interests of the child would be served.
Some states have invalidated their statutes denying a putative father standing to challenge the paternity of
the mothers husband.
The statute in the case was later amended to allow a presumed father who is not the childs mothers husband the
ability to move for a blood test to establish paternity within 2 years of the childs birth. Some other states like
Massachusetts allow this if he can prove by clear and convincing evidence that he is the father and also that he has a
substantial parent-child relationship with the child.
Parentage by Estoppel
o A husband who is not the biological father of a child born to his wife during marriage may be estopped from later denying
paternity if he has acted as a father with knowledge that the child may not be his.
o Similarly, some courts hold that a wife is estopped from challenging her husbands paternity in divorce proceedings or
subsequent to a divorce.
o Under an equitable parent approach, a husband who reasonably believes that he is the father of a child born to his wife during
their marriage may be treated as the childs father regardless of biological paternity.
Courts have generally not been willing to apply these principles where the mothers nonmarital partner was led to
believe that he was the father of her child.
Tort Claims
o State courts are divided on the question whether a husband who learns that he is not the biological father of a child born
during his marriage may sue for tort damages.
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ESTABLISHING PATERNITY
Acknowledging Paternity
o Prompted by federal law, all states have simplified procedures for paternity acknowledgement, with a particular focus on
encouraging in-hospital voluntary paternity establishment at the time a child is born.
o Cesar C. v. Alicia L (Nebraska 2011)
In absence of a successful challenge of an acknowledge, an acknowledgement of paternity signed by the parents at
the time of a childs birth has the effect of establishing the man as the legal father of the child.
Its a notarized form that the father and mother signAcknowledgment of Paternitystating that the man is the
biological father.
Facts: C filed for full custody of the child after A was arrested for methamphetamine. A asserted that he might not be
the father and requested genetic testing. The genetic tests concluded that C was not the father and A filed for full
custody. Court did not give legal effect to the acknowledgement and assigned custody to A after applying the
parental preference doctrine
The proper legal effect of a signed, unchallenged acknowledgement of paternity is a finding that the
individual who signed as the father is in fact the legal father.
May be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof
on the challenger.
Court stated that the best interest of the child is ordinarily served by certain parentage determinations and
continuity in the childs life.
Notes
Once you acknowledge paternity, you its pretty much like an adjudication establishing paternity.
Here we have a child who was raised by this man and got to know this man.
The kids interest comes into play
o Paternity Acknowledgement
Under UPA 2002 301, the mother of a child and a man claiming to be the childs biological father may sign an
acknowledgement of paternity.
If the child has a presumed father, his full name must also be given in the acknowledgement, and the
acknowledgement must be accompanied by a denial of paternity signed by the presumed father.
An acknowledgement or denial of paternity may be rescinded within 60 days after its effective date or until the date
of the first hearing adjudicating an issue concerning the child, and after this time may be challenged only on the
basis of fraud, duress, or material mistake of fact and only within two years after the acknowledgement or denial is
filed with the appropriate state agency.
o Birth Certificate
If a child is born to unmarried parents, federal law provides that the fathers name may be included on a birth
certificate only if there has been a voluntary paternity acknowledgement or an adjudication of paternity.
o Paternity of Cheryl (Mass 2001)
A fathers challenge to a paternity judgment may be untimely even though he may establish conclusively that he is
not a childs biological parent where the father does not request relief within a reasonable time.
Issue:
Whether a father may move to set aside a judgment of paternity when, more than 5 years after he
voluntarily acknowledged paternity, genetic testing established that he was not the childs biological father.
Holding:
The father did not request relief within a reasonable time. The father had an opportunity to, but did not
seek, genetic testing. He claimed that his decision to acknowledge paternity voluntarily at that time was
conditioned solely on his understanding that he was the childs biological father. A man may acknowledge
paternity for a variety of reasons, and it cannot be assumed that biology is the sole reason in every case.
The father also did not take any action when he was told he was not the father.
Where a father challenges a paternity judgment, what is in the best interest of the child will often weigh
more heavily than the genetic link between parent and child.
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A man who has comported himself as a childs father may be obliged to continue to support the child when
he, for the first time, renounces his apparent paternity in an attempt to avoid court-imposed support
obligations.
The court stated there might have been a different holding if:
o He did not have an opportunity to undergo genetic testing before he acknowledged paternity
o The man challenged paternity on obtaining information that he might not be the childs biological
father.
Notes
o He had a chance to submit to genetic testing earlier, and he didnt. He formed a substantial
relationship with the child
o It is in the best interest of the child to not disturb the relationship.
o The state is more likely to hold that the child is the mans when there is nobody else claiming the
right. The state doesnt want the kid to be a ward of the state.
Res Judicata
Challenges to paternity judgment are generally limited by the rule of res judicata
In divorce cases, language included in the courts orders that identifies a child as a child of marriage also
constitutes an adjudication of parentage, which can ordinarily be challenged only under rules permitting reopening
of a judgment.
A mother may also be bared by res judicata from seeking to disestablish the paternity of her childs legal father.
Law in several states have removed obstacles to the disestablishment of paternity when a legal father offers genetic
evidence of nonpaternity, even if many years have passed since paternity was adjudicated.
o Limitations Periods
UPA limits challenges to the paternity of a child with an acknowledged or adjudicated father to a period of two years
after the effective date of the acknowledgement or adjudication.
Proceedings to adjudicates the parentage of a child with a presumed father must be commenced within two years of
a childs birth, unless the court also finds that the presumed father and mother of the child neither cohabited nor
engaged in sexual intercourse with each other during the probable time of conception and the presumed father
never openly treated the child as his own.
For a child with no presumed, acknowledged, or adjudicated father, a proceeding to adjudicate parentage may be
commenced at any time, even after the child becomes an adult.
o Child Support After Paternity Disestablishment
Generally, an order disestablishing paternity terminates any ongoing obligation to pay child support, but state laws
are divided on whether such an order discharges the obligations to pay support arrearages.
Cases and statutes have not permitted the disestablished parent to recoup payment already made.
Adjudicating Parentage
o Laws such as UPA define who has standing to initiate a parentage action, who must participate in the proceeding, and within
what time periods the action must be brought.
o N.AH. v. S.L.S (Colo. 2000)
A question of paternity is not automatically resolved by biological testing. Courts must consider the best interest of
the child in face of conflicting presumptions of fatherhood.
Trial judge should take into account all the facts and circumstances of the case
Some states have an exhaustive list.
If we have two competing presumptions we use the best interest of the child.
Presumption of legitimacy (born into marriage) v. presumption of biological father.
If there are two competing presumptions, the court must use policy and logic Best interest of the child.
Biological father doesnt automatically win because taking the child from the man he thinks is his father could be
damaging to the child.
P. 1099 204 Presumption of Paternity and 602 (different from Michael H. case because here any man and not just
the presumed father can adjudicate the paternity)
606 and 607 (only has two years to challenge the paternity of a child with a presumed father)
Biological father wins if he gets genetic testing to show it, but must be brought within two years, but the
court can deny your request for genetic testing.
202 No Discrimination on Marital Status. A child born to parents who are not married to each other
has the same rights under the law as a child born to parents who are married to each other.
o Best Interest of the Child Principle
o
21
o
o
ADOPTION
Introduction
22
23
Hypo:
o
24
If you are a male and you have sex with someone, that is your notice that she could have a baby
3-6
About 30 states have a putative father registry. Other states do legal notice in publication.
Some states do require mothers to disclose the names of the potential fathers or eve disclose her name.
The case in this hypo held that the statute was unconstitutional as an invasion of privacy because it required her
name, where it happned, what date, etc., etc.
Here, maybe just give the height, weight, hair color, and approximate date. This is the reason why most states have
went to the putative father registry.
Nonmarital fathers constitutional rights
o When do unmarried biological fathers have the right to receive notice and give consent before their parental rights are
terminated in an adoption?
o When the father has:
25
26
A child has a right to the security of two parents at the time of birth. Parental rights can be legally terminated only
when:
A parent has been declared unfit;
An adoption as taken place; or
If child services has removed the child from the parent.
The parental rights of one parent may not be terminated by consent except when it is accompanied by the adoption
of the child by another party.
27
o
o
Notes
28
29
o
o
o
o
o
You cannot have a surrogacy agreement where you contract to relinquish your rights before the baby is
born. We already have statutes where you cannot consent to adoption until after the baby is born.
Court said that paying the woman to carry the child was too close to selling children.
o Court talks about the commodification of the babies, and it would make them too close to a good
and subject to contract law.
Gestational Surrogacy
Intro
You can pay a gestational surrogate.
Johnson v. Calvert (Cal. 1993)
When two women present proof of maternity, the one who affirmatively intended to bring about the birth
of a child that she intended to raise as her own will be the childs natural mother.
The court rejected the surrogates argument that the agreement violated the states adoption laws because
the gestational surrogacy differs in crucial respects from adoption.
Surrogacy Statutes
Altruism and Commodification
Determining Maternity
With IVF techniques, there are now two different sources of biological motherhood.
A woman who conceives a child using IVF and donated eggs will give brith to a child with whom she has
no genetic connection.
Courts have been divided on the question whether it is possible for a child to have two biological mothers.
Johnson concluded that the intended mother should be recognized as the childs natural mother under UPA
KM v. EG (Cal. 2005)
Court concluded that both lesbian partners were the legal parents of a child after one had given her egg to
the other for in vitro fertilization, despite the fact that the donor had signed a consent form that relinquished
any claim to legal parentage.
In a number of states, laws permit intending parents to obtain a birth certificate for the child that lists their names
and not the surrogates.
Unmarried Couples and Assisted Reproduction
Courts have experienced difficulty with this issue
Steven S v. Deborah (Cal. 2005)
A sperm donor had no parental rights despite his intimate relationship with the mother when conception
occurred as a result of artificial insemination rather than sexual intercourse.
In re Parentage of JMK (Wash. 2005)
The statute terminating the parental rights and obligations of a sperm donor was not applicable to a man
who donated sperm to his lover for IVF.
In re CKG, 173 S.W.3d 714 (Tenn. 2005)
a woman who conceived children by IVF using donor eggs and her partners sperm was entitled to parental
rights after the couple ended their relationship.
Surrogacy Torts
Several courts have recognized the possibility of tort liability of the intermediaries arranging surrogacy contracts to
the participants and the child born.
Notes
If a married woman goes to get artificially inseminated, the law will presume that her husband is the father of the
child, unless he states that he does not consent to being the father. Courts will bend over backwards to show that the
father consented to being the father.
We want two parents whenever we can find it.
Typically he has to affirmatively state that he is not the child
Usually before birth.
The scenario where an unmarried mother goes to a sperm bank, the only exception to the rule where the law will
require the biological father to support the child is where the biological father donated sperm
30
31
32
Other courts have not been willing to recognize emotional distress claims, in part due to a concern that some
emotional distress is part of the normal process of marital life and marital breakdown.
KNOW
o Coverture and why we started to move away from it.
Community and Common-Law Property p. 450
Tort Claim and the Marital Relationship
o Notes
In re Guardian of Atkins (Ind. Ct. App. 2007)
o This case is built in the casebook to demonstrate the harms that can come to couples that are not married.
o Brett and Patrick were a gay couple. Patrick had a stroke and is now incapacitated. The parents hate Brett and the fact that
Patrick was gay and they are now trying to prevent Brett from seeing him.
o Brett sues for guardianship, visitation, and division of community property.
o The reason Patrick cant say that he wants Brett to take care of him is that Patrick has been deemed incompetent. Thats the
whole point of having to litigate over guardianship.
o The family was just as well equipped as Brett, so the trial court did not abuse their discretion in giving the guardianship to the
family.
o However, the court says it was an abuse of discretion for the trial court to find that it was not in Patricks best interest for
Brett to have visitation.
o Lesson: You never know what is going to happen tomorrow, so you should always move to protect yourself.
Parents and Children
o Parents have a liberty interest, protected by the Due Process Clause of the U.S. Constitution, in determining the education
and upbringing of their children.
Meyer (1923): Struck down a state law prohibiting the teaching of foreign languages in public schools.
Pierce (1925): struck down law requiring parents to send their kids to public schools (v. private schools or home
schooling).
Wisconsin v. Yoder (1972): the First Amendment protects parents decisions on religious grounds to keep their
children out of school after the eighth grade.
o There are important limits on these rights
The state, acting as parens patriae on behalf of the young citizens has a compelling interest in protecting children,
reflected in laws requiring parental support and prohibiting child neglect and abuse.
In case of serious harm, the state may remove children from their parents custody and ultimately terminate parental
rights.
Contemporary cases have determined that children have some rights of constitutional dimension that may limit their
parents control over decisions such as whether they may use contraception or have an abortion.
o Troxel v. Granville (U.S. 2000)
Facts: Statute allowed for any party at any time to file for visitation if the court found it was in the best interest of
the child. Grandparents want visitation rights.
The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make
childrearing decisions simply because a state judge believes a better decision could be made.
There is a presumption that fit parents act in the best interest of their children.
Notes:
We presume that a fit parent will act in the best interest of the child.
She also didnt even deny the grandparents visitation, but just wanted a smaller amount of time.
Court struck the statute down because it was too broad, and there was not finding that she was unfit.
All 50 states have statutes that provide for grandparent visitation in some form. (e.g., Tenn. Code Ann.
36-6-306, 36-6-307).
Parental Presumptions
Parents, Children, and Torts
Emancipation of Minors
o Diamond v. Diamond
An emancipated minor is defined as any person sixteen years of age or older who has entered into a valid marriage,
whether or not the marriage was terminated by dissolution, who is on active duty with any of the armed forces of
the USA, or who has received a declaration of emancipation.
The court held that it was okay for the daughter to have a partial emancipation.
The plain language of the statute said for one or more of the following purposes
33
Policy reason: the child needs support, and is going to get it either from her or the government.
Parental Support Obligations
Father was primarily responsible for the support of his minor children, but the duty now extends equally to father
and mothers
Parental obligations are enforceable thorough a variety of civil and criminal remedies discussed.
o Age of Majority
Since the adoption of the 26th Amendment in 1971most statea have rediced the age of minority to 18
Still subject to some restrictions, such as laws that prohibit purchase of alcohol until age 21.
In a few states, although the age of majority is 18, the parents duty to support their children continues until age 21
(NY).
Depending on state law, children are sometimes permitted to seek support after reaching the age of majority, either
for educational expenses or when a child is disabled.
o Emancipation
Many states have statutes that authorize a minor to obtain a judicial declaration of emancipation, usually with the
consent of the minors parents or guardians.
Such decrees allows the minor to live apart from his parents and to manage his or her own property and
financial affairs.
Typically, however, the parents obligation of support ends once a child is emancipated.
Depending on the context, a child will be determined emancipated once the child:
(1) marries;
(2) enlists in the military; or
(3) establishes his or her own residence and begins to earn his or her own living.
E.g.,
o A daughter who left home to live with her boyfriend had emancipated herself and the parents cold
not be required to support her.
o When a child let home to take a summer job, earned money in that job, and then returned home,
the child was not emancipated.
The child must initiate an action to put himself outside the parents control and that the child must be self-supporting
in fact.
o Children in Need of Supervision
All or nearly all states have statutes authorizing juvenile proceedings against children under the age of 18 who run
away from home or disobey their parents reasonable instructions or are habitually truant from school.
In the proceeding, the court might order the child to return home and obey his parents rules.
If the child were placed away from his parents, however, the parents would continue to be liable for the support of
the child.
From the cases, in the book, a parent should not be able to terminate their duty of support where the child refuses
persistently to obey them. Basically, the court say that they should not be allowed to be relieved of their duties of
being a parent and the childs disobedience isnt grounds for emancipating the child, putting them into society, and
giving them the freedom to be adults.
o Support Obligations for Adult Family Members
p. 537
o Vicarious liability
Some states you have to show that the parent is at fault
Some states it is strict liability
o Parents can impose reasonable rules and restrictions on the child. Problem 4-4. The father does not have to support the
daughter she is fully emancipated.
DOMESTIC VIOLENCE
Why do we have laws regarding domestic violence?
o Marriage presents a different dilemma
o It can be taken of fairly rapidly v. a tort claim or assault claim. It doesnt take long for an ex parte order for protection (15
days).
o All your going to have with tort law is damages.
History
o Historically, women were viewed as the husbands child and the husband could discipline her, and only if it got very extreme
could the wife do anything about it.
o
34
35
P. 468
o
Violence Against Women Act also allowed a remedy for the women who have been abused under Commerce Clause, but it
was struck down.
Typically, self-defense doesnt work because you:
o Have to be defending yourself in the moment; and
o You have to meet force with force.
o So they tried to implement battered-spouse syndrome. The argument is that they are constantly in fear at all times and they
never know when the next attack is going to be. Courts will admit and accept this but they will rarely accept this as an excuse
for murder, but use it to negate criminal intend but it is rarely a complete defense.
CHILD MALTREATMENT
Introduction
o While parents have a constitutionally-protected right to control their childrens education and upbringing, states have broad
authority to enact legislation designed to protect children.
o Court must balance appropriate protection for fundamental parental rights with the compelling state interest in protecting
children from harm when states act to remove children from their parents care or terminate their parental rights.
o The child welfare system in the United State has been shaped by a cooperative federalism, in which the national government
provides funding and defines the parameters for state laws under Title IV-B and IV-E of the Social Security Act
Responding to Child Abuse and Neglect
o In common law, the father was entitled to the custody of the children and had the right to exercise complete control over
them. His right to discipline them was subject to few limitations, and harsh punishments were not unusual. Criminal law
afforded some remedies to deter or punish cruelty to children, but they were not used often and were frequently ineffective
because it was hard to prove.
o Child Abuse Prevention and Treatment Act of 1974 (CAPTA)
Established a National Center on Child Abuse and Neglect in the U.S. Department of Health and Human Services
Provided grants for development of child abuse prevention and treatment programs.
o Child Welfare Act of 1980 (AACWA)
Established new child protection requirements
Set up a reimbursement program for state expenses incurred in the administration of adoption and foster care
programs.
o Adoption ad Safe Families Act (ASFA)
Amended the IV-B and IV-E programs to reduce the time children spend in foster care and move them more quickly
into adoptive or other permanent homes
o In the years following WWII, many people in the medical profession become concerned about child abuse and began to
classify and identify its symptoms.
o Child Abuse Reporting Laws
One important innovation came in the form of child abuse reporting laws
Requires various individuals including physicians, teachers, and child care providers to report when they suspect
that a child has been abused or neglected.
o Court Proceeding
Once discovered, child maltreatment is usually addressed in a civil proceeding, typically divided into two stages:
Adjudicatory stage
Dispositional Stage
Adjudicatory Stage (D&N/CINA (China) Proceeding)
Concerned with whether the child was abused or neglected within the meaning of the applicable statute.
This may be framed as an inquiry into whether the child is dependent or neglected, sometimes referred to
as a D&N proceeding, or whether the child is a child in need of assistance, also referred to as a CINA (or
China) proceedings.
Dispositional Stage
If the court determines that the child has been abused or neglected, the dispositional stage considers what
remedy best fits the circumstances.
The court might release the child to the custody of his or her parents with or without a protective order or
some for of supervision, or place the child in the custody of other persons, a foster home, child care agency,
or an institution.
In a particularly serious case, the court might terminate parental rights completely.
36
Beyond these civil remedies, child maltreatment may also be referred for prosecution under state criminal
laws.
Notes
You have a right to reasonably discipline your child, but you cant abuse it. That is where the line becomes blurry
In re Ethan H. (N.H. 1992)
o Facts: Child was throwing food at the dinner table. His mother asked him to stop and he ignored her. She took a belt and
spanked him on the butt six times with it.
o The court reversed the lower courts order finding that the con was an abused child under the Child Protection Act.
o A parent of a minor of a child or one standing in loco parentis is justified in using a reasonable amount of force upon a child
for the purposes of safeguarding or promoting the childs welfare.
o Reasonable corporal punishment is allowed.
o A proper finding of child abuse must include a determination of whether the alleged abusive act was committed under
circumstances indicating harm or threatened harm to the childs life, health, or welfare. Such harm may be demonstrated by,
for example the severity of the intentionally inflicted injuries; recurring or threat of recurring injury; or injury when a profile
of the childs caretaker indicates a history of, or a propensity for, abuse.
o Notes
Have to take into account culture, appropriateness of the punishment, the severity of the infraction, the amount of
force used, the injury caused, age of the child, intent of the parent, the childs ability to comprehend what is going
on, etc.
Its pretty much a totality of the circumstances.
Laws, to pass constitutional muster, must be able to put the person on notice. If it does not, it can be
unconstitutionally vague.
E.g., you can not partake in harsh behavior
You want it kind of broad to apply to different situations, but if its too broad, then it is unconstitutionally
vague.
We have a constitutional right to upbring out children, but it has to be balanced against the states interest in
protecting the childParens Patrie
Always thing of the state as a third parent who can watch over what is going on and step in and take the
child if they feel it is necessary
Child Abuse Reporting Laws
o All states have child abuse reporting acts, and are required to have such acts as a condition on receiving federal funds.
o Under federal law, state statutes must require child abuse reporting by classes of persons likely to come in contact with child
abuse, such as doctors, nurses, other health care workers, school teachers, or child care providers, and similar persons.
o The statute also authorizes reports by anyone who knows of or has reasonable cause to suspect child abuse.
o Reports are made to local child protective or law enforcement agencies (like DCS).
o The statute provides that any person reporting child abuse in good faith is immune from criminal or civil liability that might
otherwise result from such a report, and good faith is usually presumed.
Child Abuse Registries
o Most states have these registries.
o E.g., New Hampshire
May require that each instance of reported child abuse be entered in a central registry, whether or not probable cause
is found.
When probable cause is not found, kept in registry for 3 years
When probable cause is found, kept in registry for 7 years.
Parental Rights
o Invoking the principle that they have a constitutionally protected interest in the care, custody, and management of their
children, parents sometimes file suits under 42 U.S.C. 1983.
o Courts evaluating these cases hold that the state ahs a compelling interest in protecting the childrens welfare, and focus on
whether the authorities had a reasonable suspicion that the child has been abused or was in danger of being abused.
o Defendants in this type of case are typically accorded a qualified immunity from suit, which is available so long as they do
not act in violation of rights that are clearly established in the law.
Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs rights, only allowing
suits where officials violated a clearly established statutory or constitutional right. When determining whether or
not a right was clearly established, courts consider whether a hypothetical reasonable official would have known
that the defendants conduct violated the plaintiffs rights. Courts conducting this analysis apply the law that was in
force at the time of the alleged violation, not the law in effect when the court considers the case.
o
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38
39
40
(2) the court finds that the marriage is irretrievably broken, if the finding is supported by evidence that
o (i) the parties have lived separate and apart for a period of more than 180 days next preceding the
commencement of the proceeding, or
o (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties
toward the marriage;
(3) the court finds that the conciliation provisions of Section 305 either do not apply or have been met;
(b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall
grant the decree in that form unless the other party objects.
o 305. [Irretrievable Breakdown]
(a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is
irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall
make a finding whether the marriage is irretrievably broken.
(b) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall
consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of
reconciliation, and shall:
(1) make a finding whether the marriage is irretrievably broken; or
(2) continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon
thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they
seek counseling. The court, at the request of either party shall, or on its own motion may, order a
conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is
irretrievably broken.
(c) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.
Fault v. No Fault
o No-fault usually has a waiting period and fault based does not.
o Fault-base is a good bargaining chip in negotiation to make the other party give you what you want. If you wont give me
what I want, Ill proceed under a fault base on ruin your image by having a public record or your affair, abuse, etc.
o You can bring in all the other partys dirt in a fault base and usually cant in a no-fault.
o Fault v. no fault has no impact on what you can bring up when adjudicating children issues and all that. Just the status of
being married.
Tennessee grounds for divorce
o The no-fault grounds for divorce are:
irreconcilable differences, and
Irreconcilable differences are differences between the partners in a marriage which make it impossible for
their marriage to continue.
Many things such as lots of time away from home, financial strain, arguments about how to raise children,
and religious conflicts can put strain on a marriage and are considered irreconcilable differences.
Sometimes, people simply find that their partners change over time, and that their feelings about their
partners change as a result. In other cases, personality conflicts emerge when people transition from
unmarried to married life and find that they are not as compatible as they thought.
To divorce on the grounds of irreconcilable differences, the partners usually just need to petition. They do
not need to show proof or to provide evidence.
o
41
42
Condonation
o Continuance of cohabitation implies forgiveness on part of the spouse.
Recrimination
o Where plaintiff also engaged in a marital offense.
Unilateral v. Mutual Consent Divorce
o Unilateral: Marriage is a relationship between two people, and if one of those people has determined that it shall not continue,
this is plain evidence that the relationship has broken down.
o Mutual: Some states have more strict statutes, in which a divorce may be denied where the parties disagree on whether their
marriage is irretrievably broken.
Divorce Jurisdiction
o In the era before no-fault divorce laws, when many individuals traveled to another state or country to obtain a divorce,
jurisdiction and conflict of laws questions were at the core of domestic relations practice. Although migratory divorce is far
less common today, the complex framework of divorce jurisdiction remains in place. Jurisdictions in divorce cases is unusual
because the rules governing the courts jurisdiction over termination of a marriage differ sharply from the rules governing
jurisdiction over the financial aspects of divorce and the rules governing jurisdiction over child custody and support matters.
o Von Schack v. Von Schack (Maine 2006)
Personal jurisdiction is not required over the defendant where the plaintiff is a resident of the state and the order is to
render a divorce judgment that dissolves the parties marriage without determination of property division, parental
rights, or support.
Courts must uphold due process requirements of notice and an opportunity to be heard before granting an
ex parte divorce.
Must also consider defendants assertion of forum non convieniens.
Each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can
alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is
absent.
One state can grant a divorce of validity in other states if the applicant has a bona fide domicile in the state of the
court purporting to dissolve a prior legal marriage.
Domicile is physical presence in the jurisdiction with the intent to remain there.
Ex parte divorce proceedings are good for public policy reasons.
However, the Court has held that where child contact and support are in issue, personal jurisdiction is required.
Also, a court may not issue a divorce decree where the spouse seeking the divorce and the spouse not present are
both not domiciled in the state.
Know that Williams I relates to divisible divorce
o Divorce Jurisdiction
A court may have jurisdiction to terminate the marriage, but not divide marital property, to order the payment of
alimony, or child support, or to determine parental responsibilities for children of the marriage.
o Residence and Domicile
Statutes in all states define the connection that a petitioner must have with the state in order to obtain a divorce there
typically permitting a petitioner to file a divorce action if he or she has resided in the state for a specified time
period.
Residence and domicile are often used interchangeably in this context but in some jurisdictions domicile is not
sufficient if the petitioner resides somewhere else.
o Notice and an opportunity to be heard
Must be reasonably calculated under the circumstances to apprise interested parties of the pending action and afford
them an opportunity to present their objection.
o Same-Sex marriage and Divorce
States that do not permit same-sex marriage couples to marry have reached different conclusions about whether they
have jurisdiction to divorce them.
Some say they do and some say they dont.
o Dissolving Civil Unions and Domestic Partnerships
Same requirements as dissolution of marriage
Same problem with states that do not recognize the partnership as the states that do not recognize gay marriage
Some states have in their laws that by entering into the civil union or domestic partnership you consent to the
jurisdiction of the state (to prevent the party from moving and the other party being unable to exercise jurisdiction
over them any longer).
Financial Remedies
43
o
o
44
Dissipation is the disposition of marital property by a spouse in a manner designed to circumvent equitable
distribution.
In community property jurisdictions, fraud or waste of community assets may be taken into consideration in the
division of property at the time of divorce.
Marital Debt
In addition to dividing marital property, courts in a divorce case may allocate responsibility for payment of the
parties debts. Like assets, debts may also be classified as marital or separate.
Allocation of a joint debt by the court or the parties at the time of divorce does not affect the relationship between
the creditor and the spouses.
Tax Liability
Tax liability may be taken into account by a court as a factor in achieving an equitable distribution, particularly
when the spouses anticipate tax consequences as an immediate result of the property division, as is the case when
assets will be sold to facilitate the distribution.
Courts are typically unwilling to adjust the valuation of marital assets based upon the hypothetical future tax
liabilities, such as those involved in the sale of a business.
Middendorf v. Middendorf
Determining when appreciation in separate property becomes marital property for purposes of the division in of
property in a domestic relations case.
Marital property includes all income and appreciation on separate property due to the labor, monetary, or in-kind
contribution of either or both of the spouses that occurred during the marriage.
Separate property includes passive income and appreciation on separate property acquired other than as a result of
the labor, monetary, or in-kind contribution of either spouse.
Notes
Stockyard was separate property. The issue is whether the appreciation is marital property.
If either spouse contributes to the separate property to cause an appreciation, then it is marital property.
If it increase in value because of nothing either spouse does, then it is separate property because it is a
passive income.
Here, the court says that the pure fact of the husband just managed the business means it is not passive.
Marriage is partnership, so that is why it is either spouse and not just the one seeking the money.
Standard is quite low. Things that might make it maybe a stock on a long position, but Higdon says that the
decision not to sell could be called managing it.
Some property may have a mixed character, with their part of their value separate and part marital. Property
may also have mixed character if it was acquired using both separate and marital assets. E.g., one spouse
might use separate resources for the down payment on a house and marital funds to pay off the mortgage.
Transmutation and Commingling
Commingling
Results when separate and marital properties are inextricably combined, so that the respective contributions
of the two estates cannot be traced.
Based on a presumption that property acquired during marriage is marital or community property, this
mingling results in the combined asset being characterized as marital property.
E.g., marital and separate property were combined to improve a house, which was then sold and the
proceeds used to buy another house, which was ultimately treated as martial property.
Cant separate the property.
Transmutation
Occurs when a spouse transfers property during the marriage in circumstances suggesting that the spouse
intended to change its beneficial ownership from separate to marital property. The most common example
occurs when property that was purchased with separate funds is titled either in a joint tenancy or tenancy by
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the entireties. They is typically raises a rebuttable presumption that the owner intended to make a gift to the
marital estate, and the property becomes marital unless the owner is able to rebut the presumption.
In some states, transmutation can occur when a couple deals with their property as if it were marital.
o Marital and Separate Property
Many states apply a presumption that all property acquired by either spouse subsequent to the marriage and prior to
a decree of divorce or legal separation is marital property
Court must sometimes decide when a marriage has ended for community and marital property purposes.
In some states the marital community ends on the date of separation.
Although the courts may apply a high standard for what constitutes a sufficient separation.
In other states, the marriage does not end until a decree is entered.
o Source of funds rule
Court is willing to trace the source of the funds if it is not too difficult to do.
E.g., taking 20% of your inheritance and using it to buy a home. Court can say okay, 20% of the inheritance here
you go.
o In re the Marriage of McReath
Part of the rationale in creating the presumption of equal property division is that the homemaking partner has
contributed serves which have enabled the financially supporting partner to achieve his or her station in life, and in
doing so the homemaking partner has lost ground in the job market.
When valuing a business interest that is part of the marital estate for purposes of divorce, a court shall include the
value of the salable professional goodwill attendant to the business interest.
o Professional Goodwill
Many jurisdictions take the approach urged by Dr. McReath in the above case, attempting to distinguish between
enterprise goodwill, which may be marital property, and personal goodwill which belongs to the professional
spouse.
Other courts have ordered division of goodwill in a professional practice without making the distinction between
enterprise and personal goodwill.
There are also decisions holding that the goodwill of a professional practice is not property for purposes of equitable
distribution on divorce.
Some courts have found the goodwill of law practices to be marital or community property subject to equitable
division on divorce.
Other courts have concluded that the goodwill of a solo practitioners law practice cannot be divided on divorce as
marital or community property.
Good will is the reputation of a business of a business as being good.
In re Marriage of Olar
o Whether an educational degree constitutes marital property subject to division upon dissolution of marriage.
o An educational degree is not marital property.
o Pension v. degree
Pension is easier to value. You can tell what it is worth.
Education is hard to put a value on.
o Maintenance
Any time property is insufficient to divide, courts will consider alimony to compensate.
The threshold requirement for maintenance is reasonable needs which means the lifestyle they are used to living
and appropriate employment requires that partys economic circumstances and reasonable expectations established
during marriage be considered.
Note: New York does treat an educational degree as marital property.
Alimony
o Harder to justify today because:
Woman have better employment opportunities
The marriage model has changed. Now you have people 30+ getting married who both have already started a career.
More women start the relationships with careers.
It incentivizes getting married.
The absence of fault. Alimony largely came from fault in the marriage.
The marriage is partnership theory:
We are going to look to see what you built while you were married and divide it.
If we have divided equally what you had together, why should we make one party continue to give to the
other if we have divided everything equally?
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After you are divorced, everything that the parties gain are separate properties, so why should we make the
husband give his separate property?
o When it is justifiable
When there is insufficient marital property
o Factors
Age
Fault
Duration of the marriage
What they gave
Earning potential
Health/ physical condition of the party
Accustomed style of living
Demonstrated need during the post-divorce economic readjustment period.
Time need to make the post-divorce transition to self-support
o Difference between alimony and property division
Property division is generally not modifiable
Alimony generally is modifiable. You can go back t the court and show that she makes more money/ he makes less
money/ she got remarried, etc.
In re Marriage of Hutchings (Okla. 2011)
o Issue: whether the trial court considered the relevant factors under Oklahoma law for determining an appropriate amount of
support alimony, and whether the trial courts award of support alimony was supported by the evidence.
The trial court only gave her $9,000. She wanted to pursue a social work degree, but she get a free education to
being a nurse with a pay cut but she didnt want to do that. Husband had lots of money as was doing very well
o Alimony amount must be reasonable.
Court hear focused on earning potential and length of the marriage.
o Notes
In the absence of alimony, it can always encourage the parties to pursue their career so they wont be left high and
dry if they get divorced.
Between no fault and marriage as a partnership theory, alimony is very hard to justified
Where you do see it, it is more short term
If you see long term alimony, its because they were married for a vey long time.
When a husband goes from a high paying job to a lower paying job:
Imputed Income
o What he could be making in a job he is capable of doing
How hard did he look to find another job?
o Cohbitants
Palimony there can be a claim through implied contract to alimony for cohabitants.
In re Matter of Raybeck
o Woman was given alimony that would cease if she began to cohabitate with another man. She moved in with another man,
but theyre rooms were on separate sides of the house, they shared a common area, she didnt pay rent, she bought the
groceries, he may have been her boyfriend, and they had talked about getting married.
o Definition of cohabitation:
Cohabitation is a relationship between persons resembling that of marriage
Cohabitation encompasses both an element of continuity or permanency as well as an assumption of marital
obligations.
Because of this, many people are putting cohabitation clauses in there prenuptial agreements.
Rule of thumb: Define cohabitation in your prenuptial agreement!
You can also try to go back and try to get alimony modified based off her change in living expenses.
Plus she said that she did this to save money, so if she is costing less to live, he could get the change of
circumstances ruling to get it lowered by the amount she is now saving.
o Notes
Does the agreement say anything about cohabitation? If so, that may solve it
If it doesnt say anything about cohabitation, the court will look at change of circumstanceslike a reduction in rent
they may reduce his obligation of alimony to her by that amount.
Permanent alimony is alimony you pay until the other spouse dies or remarries.
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Contractual v. Decretal in
o If you do not merge your settlement agreement into the divorce decree, it stand alone as a contract. If you do merge it, it now
becomes decretal and you can challenge it on a divorce decree basis.
o If there has been a merger, the court can look at a change of circumstances.
o If it doesnt, then it stands alone as a basic contract.
Sahin v. Sahin
o If you merge the settlement agreement with the divorce decree, it can be timed barred by the one year limitation on
challenging the judgment.
o Notes
You can still merge the things from the settlement agreement that the court couldnt grant itself (like that you will
pay for college tuition).
The more you think that having change of circumstances in the future would be to your benefit, then you might want
to merge. The more you think that you dont want a change of circumstances, then you dont want to merge. MOST
of the time.
If you have a good contract and I mean good, having it not merged is probably the best policy.
Courts will normally default that it is merged, so you should tell them that you dont want it to be merged. You
should also put that you dont want it to be merged in the settlement agreement.
Obviously you can still come back and get more alimony if the decree is merged. It matters where the party wants to
come back and get more property.
Horner v. Carter (2012)
o Facts: Agreed to pay $500 a month for a housing allowance. Wife remarried. Husband fell behind on the housing payment
and then tried to say that it was alimony and so he didnt have to pay it anymore.
o The housing payment was more like a property settlement and not maintenance
It was under Real Estate and not Maintenance
He didnt treat it like alimony because when she got married he didnt try to quit paying it until 5 years later
This was in exchange for him getting to keep his pension.
Faherty v. Faherty (853)
o Husband put in the settlement agreement that they had to go to arbitration. It back fired on him. He then said that Arbitration
shall be vacated when the arbitrator exceeded his power
o Child Support
Only an arbitrator award that either reduced child support or refused a request for increased support could be subject
to court review, because only such an award could adversely affect the interests of the child. However, even awards
reducing support would be subject to court review only if they adversely affected the substantial best interests of the
child.
Substantial best interest of the child are not affected when the reduction in support or the denial of additional support
is petty or frivolous, but only when it actually and materially affect the childs standard of living.
PERSONAL JURISDICTION
Kulko v. Superior Court of California (1978)
o Issue: Whether courts may exercise in personam jurisdiction over a nonresident, nondomiciliary parent of minor children
domiciled within the State.
o Holding: the exercise of such jurisdiction would violate the Due Process Clause of the 14 th Amendment.
o A defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.
Is it reasonable and fair to haul him into court in California?
The father did not purposefully avail himself of the rights and benefits of California law by allowing his children to
stay with their mother more.
o To find personal jurisdiction in a State on this basis, merely because the mother was residing there, would discourage parents
from entering into reasonable visitation agreements. Moreover, it could arbitrarily subject one parent to suit in any State of
the Union where the other parents chose to spend time while having custody of their offspring pursuant to a separation
agreement.
o Buying his daughters plane ticket and not preventing her from going to California is no grounds for Cali to have personal
jurisdiction over him. He could not have reasonably anticipated being hauled into court over that.
o Notes
A ruling like this is more likely to produce flexibility in the family unit. Parents are more likely to allow the children
to live where they want to live. A ruling the other way may encourage parents to fight their children leaving.
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She could have gotten a divorce in Cali too (review of ex parte divorce)
PARENTAL RESPONSIBILITIES
Intro
o Al parents have significant moral and legal responsibilities for their children.
o Once parentage is established, this includes the obligation to provide financial support and these duties are now enforced
though complex administrative and judicial process involving both state and federal governments.
o Although parents have a broad right to determine their childrens upbringing, this principle does not provide a basis for
resolving disputes between parents over major decisions concerning the childs welfare.
When parents disagree, courts may be called upon to assign parental rights and responsibilities between parents
based upon the best interest of the child.
In some states, third parties with no legal status as parent may also claim a share of this responsibility.
Child Support
o Has become a cooperative project under state and federal law structured and funded under Title IV-D of the Social Security
Act
o Every state has adopted the Uniform Interstate Family Support Act (UIFSA)
Designed to help the process of collecting support across state borders
Every state has also adopted child support guidelines that use a numeric formula to establish a presumptive support
award, and all states have implemented a variety of child support enforcement techniques, including such measures
as suspending drivers licenses of delinquent obligors
o Establishing Jurisdiction
With our highly mobile population, first problem in child support case is establishing jurisdiction. Courts must have
personal jurisdiction over the potential obligor in order to enter a support order. This requirement generates
significant complications in the many cases in which the child in need of support does not reside in the same state
where the obligor lives.
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Notes
In alimony, if you get a better job after the divorce and your alimony was sufficient, your alimony will not
go up. But your child support will because it is always in the best interest of the child to get more money.
We have to balance the parents fundamental right to raise the child with the childs best interest when there
is a family unit. When divorce occurs the right to raise the child as you see fit is weakened and state interest
in loco parentis increases.
Imputed Income
Courts may impute income to a parent who is unemployed or underemployed in an initial support determination or a
support modification
Courts may also impute income to an unemployed custodial parent.
Incarcerated child support obligors
Many courts view this as involuntary employment and modify
Others refuse to reduce
Other say it isnt a sufficient basis but may be taken into account in deciding whether to modify support
Modification of Support
Child support orders may be modified upon proof of a substantial change in circumstances
Because child support orders are issued by the court, they cannot be modified by private agreement without court
approval.
Each installment due under child support becomes vested as a final judgment when it accrues and goes unpaid. This
is why past payments cant be modified.
Under some statutes, you can have child support retroactively increased if the party ahs misrepresented or failed to
disclose income or other relevant information.
Termination of Child Support
Ends when the child reaches the age of majority or otherwise emancipated
Emancipation occurs generally when the child marries, enlists in the military, or leaves home and becomes selfsupportive.
In most states, parties may stipulate in a separation agreement or consent judgment that child support will continue
beyond the usual age of majority.
State law may provide that the parents support obligation terminates when they die or that it does not end and
becomes a claim on the estate.
In most states, support obligation ends when parental rights are terminated.
Child support obligations also end when paternity is disestablished.
Child Support Determination
Percentage of Income Model
A state that has adopted this model looks at your money and the amount of kids you have to determine your
child support amount.
Going into this, you know what you are gong to have to pay.
Looks real nice and simple, but this assumes one person has custody and the other does not.
Income Shares Model
Take into account how many children you have and then they look at the combined earnings of the mother
and the father on a monthly basis
If the combined earnings is X, the child gets Y from both parents. So if they both make the same amount,
they will both pay half, and by pay, this means they will pay it to each other.
Who tends to get screwed are the children of the very rich, because it only goes up so high.
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Basically you look at the combined monthly income of the two parents
o E.g., if you jointly make $4,000 a month, then the kid is going to get $400. Lets say the mother
contributes $3k and the father $1k. So the mother will contribute $300 and the father $100.
o This works best when they have equal time with the kids.
o KNOW THESE -- Child support
Not the interstate uniform family support act and why we need it and how this fits with the divisible divorce
Know the concept of imputed income and how it fits into this stuff
Know that you are subject to long arm jurisdiction if you have sex with someone in the state and a baby is born
Know that you can modify child support: know the good faith, strict, and intermediate test.
Know the difference between income share and percent of income model. Know we have this because before judges
just awarded whatever they felt was necessary and this gives us more guidelines.
Jurisdiction: Working With UCCJEA
o Any state with a substantial interest in the childs welfare might take jurisdiction of a custody case. Uniform Child Custody
Jurisdiction Ac (UCCJA). Adopted in every state.
o By providing concurrent jurisdiction in more than one state, UCCJA created the possibility of competing jurisdiction and
contradictory decrees entered by courts in different states.
o Because of the rule that child custody decrees always remain subject to modification to protect the childs best interests, they
were not generally seen as subject to the constraints of the Full Faith and Credit Clause
Congress enacted Parental Kidnapping Prevention Act (PKPA) to address problem of interstate recognition an
enforcement of custody decrees.
Differences between UCCJA and PKPA created confusion and complexity
o Lawyers now work with Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Eliminated some of the difficulties that had arisen under the UCCJA and works more effectively with the PKPA and
the federal Violence Against Women Act
Every state adopted except Massachusetts.
"Home state" is defined in the Act:
(7) `Home state' means the state in which a child lived with a parent or a person acting as a parent for at
least six consecutive months immediately before the commencement of a child custody proceeding. In the
case of a child less than six months of age, the term means the state in which the child lived from birth with
a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a
parent is part of the period.
Tex.Fam.Code Ann. 152.102(7)(Vernon Supp.2002). In turn, "commencement" as used in the definition
"means the filing of the first pleading in a proceeding." TEX. FAM.CODE ANN. 152.102(5).
Commentary suggests that although the definition of "home state" has been reworded slightly, no
substantive change from the UCCJA was intended. Sampson & Tindall, Texas Family Code Annotated
152.102, Commissioners' Comment p. 470 (2001).
Section 152.201 provides the hierarchy for determining whether a state has jurisdiction to make an initial child
custody determination: 152.201. Initial Child Custody Jurisdiction
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial
child custody determination only if: (1) this state is the home state of the child on the date of the
commencement of the proceeding,2 or was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a parent or person acting as a
parent continues to live in this state; (2) a court of another state does not have jurisdiction under
Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground
that this state is the more appropriate forum under Section 152.207 or 152.208, and: (A) the child and the
child's parents, or the child and at least one parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence; and (B) substantial evidence is available in
this state concerning the child's care, protection, training, and personal relationships; (3) all courts having
jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of
this state is the more appropriate forum to determine the custody of the child under Section 152.207 or
152.208; or (4) no court of any other state would have jurisdiction under the criteria specified in
Subdivision (1), (2), or (3).
In re Interest of Brilliant (Tex. App. 2002)
o Child was born in Mass. And the she move to Texas with the child
o Issue: who has jurisdiction?
o Home state has priority. Know this stuff.
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Class Notes
At common law father had primary custody of his children
During 19th century courts began to award custody to mothers, and eventually began to assume that children of tender years should
be placed with their mother.
Today, we decide custody arrangement based on what is in the childs best interest.
Two types of custody:
o Physical
Actual possession of the child
o Legal
Right to make decisions based off how the child is going to be raised.
In re Marriage of Kovaks (see above)
o We look to see what is in the best interest of the child.
o The is a departure of the tender years doctrine because the mother was normally the primary care giver.
Rodrigue v. Brewer (p. 996)
o Mother is complaining about the educational upbringing in the parental rights and responsibilities in the parenting plan.
Father got to decide education because he was really smart. Mother got to decide religion.
o This is a high-conflict divorce. Court ultimately upheld it.
o Dissent: Yes, the trial court ahs the discretion to fashion some custody agreement in the best interest of the child. Instead, the
court is bound by the rules of equity regarding custody and the best interest of the child. The father was given the right to
choose education, he could place the child in any school and will affect where the child lives. Bottom line: the trial court was
trying to dilute the conflict and not figure out what is in the best interest of the child.
Miller v. Smith (p. 1007)
o Facts: Dad is not taking the kids to gymnastics
o Mother says that she is trying to develop plans for the daughter, and if he does not take her to gymnastics, it undermines her
plans with the daughter.
o Court says that one parent cant dictate how the other parent must spend their time with the child.
o Note: A parenting plan can be very specific. It can state that the father must take the child to gymnastics and be attempted to
be enforced. But remember, the court doesnt want to get too deep into other peoples crap. Theyll say, like here, figure it
out.
Parenting Plans
o Have a better chance of success if parents arrive to the agreement on their own terms
o Three parts of parenting plan: 979
o Helps to not take up judicial resources.
Colona Case
o He makes a lot of money. Then he makes less money. He has primary custody of the child. Lower court says he doesnt have
to pay child support. It was reversed.
o Holding: The court says that they must maintain the standard of living. A parent with primary custody can be enforced to pay
child support to the other parent where there is a great disparity in incomes.
o Dissent: This is income redistribution.
Annulment Case
o After you have consummated a marriage, you can still get an annulment. One of the reasons is fraud.
o Facts: wife loves her job. Husband lied to her and didnt tell her he was a convicted felon. She got fired from her job as a
correctional officer because he was a convicted felon and it created a conflict.
o Test for an Annulment:
Whether the false representations or fraud went to the heart of the marriage.
Very subject standard. It can be something as subject as the person being a felon.
o Notes
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There isnt exactly a time limit on annulment but the longer the harder to get one.
Court doesnt want to make illegitimate children.
If it is something weird like this, you have to show that you showed up front that it goes to the heart of your
marriage.
Something like having children or consummating the marriage is sort of implied.
Reasons for annulment over divorce:
Dont have to divide property or pay support. If you a rich person, you would want to get the wedding
wiped off the slate.
Divorce can be considered a sin
Annulment wipes the slate clean.
Consummation is a ground for divorce. If there has been consummation, you have to show that there is fraud that
goes to the heart of the marriage.
Lowenshuss Case
o Marriage by Estoppel
Its something you should know in conjunction with putative spouse, common law marriage, etc. If you have been
together for a while, the court is going to bend over backwards to say that you are marriage.
o Facts: W lived in Penn. Went to Alabama to get a divorce b/c they probably had a relaxed domicile requirement. However,
you have to be a citizen of the state and she did not meet the residency requirement. Every state requires a resident
requirement. She just went down there for a couple of days and got the divorce. She came back and got married to H. He
thought that the divorce was valid when they got married. He files for divorce but finds out that their her divorce was invalid
and she is still married to the first guy. What one would normally do here is file for an annulment to declare the marriage as
void. Instead, he just says were not married but we can still live together. He started filing single on his tax returns. He
told some close friends they werent married but they seemed to still hold themselves out that they are married. Then shes
has had enough and files for divorce. He then says we cant get a divorce because were not married. Lower court says that
the marriage was invalid and she got nothing.
o Equitable Estoppel in Divorce
[a] person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it
would be inequitable for him to do so.
this type of estoppel is . . . not limited to situations of "true estoppel" where one party induces another to rely to his
damage upon certain representations. The rule may be applied whenever, under all the circumstances, it would be
inequitable to permit a particular person to challenge the validity of a divorce decree. Such inequity may exist when
action has been taken in reliance on the divorce or expectations are based on it or when the attack on the divorce is
inconsistent with the earlier conduct of the attacking party.
o Notes
Lower court used classic estoppel claim where they say that she didnt rely on anything because she knew that he
was married.
On appeal, she wins
Fact switch: If she was the one trying to stop the divorce, the court will not let the wife rely on her invalid divorce to
prevent a divorce decree. Here, the husband is trying to use her invalid divorce. The court says it will inequitable for
him to benefit from the invalid divorce because he used the divorce to look married but if there is ever a divorce he
would get to keep everything.
Heck, apparently you can still be estopped even if you dont find out that the divorce was invalid until she brings a
divorce claim against you.
A court is going to bend over backwards to find a valid marriage: common law marriage, putative spouse, marriage
by estoppel, etc.
Much broader approach because there is an urge to find a valid marriage. It can be applied against either party. One
reason is because we dont want to have illegitimate children.
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