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Family Law Outline – Spring 2009 (1 of 77)

I. Marriage and Other Intimate Relationships


a. Introduction
i. It is a very fact driven area
ii. For the most part it is state specific – formulated on a state level
iii. Although case law heavy, it is extremely statutory in some regard
iv. Constitutional aspects of family law
1. Due Process, Equal protection, privacy
v. Principle is best interests of the child
vi. Standard of Review is abuse of discretion – such a fact based area hardly any precedent
vii. Case precedent doesn’t mean much – can usually distinguish anything on the facts
viii. Have to win at TRIAL COURT!!
1. all the court is saying under abuse of discretion is that it is reasonable
2. no reasonable judge would have decided it this way
3. difficult to get reversed under abuse of discretion
4. person who wins at trial gets controverted facts in their favor
ix. Remember on an exam
1. Scholarly level
2. practical level
3. on an ideal level
x. Family law used to be in the purview of ecclesiastical courts – canon law
1. in Ecclesiastical courts no such thing as divorce, could have a separation from bed and board –
which is permission to live apart
2. 1877 US recognized CL marriage
b. Common Law Marriage
i. Elements of Common Law Marriage
1. A capacity to enter into marriage
2. A present agreement to be married
3. a holding out to the community of being husband and wife
ii. Common law marriage is a legal marriage – the only way to dissolve a legal marriage is through a
divorce
iii. IN analyzing common law marriages, it is important to look at the kind of law suit in which the claim
is being made and the person who is alleging the existence of the marriage. The court will be more
inclined to find a common law marriage if this result seems the fairest way to resolve the disputes
between the parties.
iv. REMEMBER – THERE IS A PREFERENCE FOR A STATUTORY MARRIAGE
v. Pitney v. Pitney
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1. He hired her to work in his home as a domestic. They lived together for twenty years, she
signed checks for him, took her to gatherings, she signed her name as Mrs. Pitney. Registered
in a hotel as Ray Pitney and wife.
2. Court:
a. There must be a present agreement to become husband and wife immediately from the
time when mutual consent is given.
b. An express future condition is absolutely fatal to a claim of marriage
c. It is not enough to agree to present cohabitation and a future marriage when more
convenient.
3. This is an important case because; the S.Ct. is saying that there was an abuse of discretion by
the trial court. Therefore, this is a case that establishes the outer limits of broad judicial
discretion in the area of common law marriage.
4. The court said that it would not recognize as a common law marriage nay relationship based
on a future promise to marry, coupled with sexual intercourse.
5. Another factor playing here is the legal principle that the last marriage in time is preferred.
There is a rebuttable presumption in favor of the last statutory marriage. Also a statutory
marriage is preferred to a common law marriage.
6. Remember Francis’s marriage has a presumption, Mary now has to have burden of persuasion
that the marriage is invalid.
7. It is an equitable remedy, ability to remedy those people who act like married couples
vi. Schrader v. Schrader
1. The parties were legally married, then divorced. They began living together again, this time
without bothering about anything so trivial as legal formalities.
2. Court:
a. There was never a present agreement or understanding that they were married
i. Capacity
ii. Present agreement
iii. Holding out as husband and wife
b. If you don’t behave in your private affairs as husband and wife not going to create a CL
marriage. The court found that their sexual behavior was not the kind found within a
marriage. Therefore, the court refused to recognize this relationship as a marriage
because it was not within the court’s notion of normal marital behavior.

vii. State v. Walker


1. Walker and Harmon were prosecuted for living together without being married. (This is the
case where they did the big article for the paper and renounced the procedure for getting
married)
2. Court
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a. the language in the statute that was being in interpreted was “living together as
husband and wife”
b. the provision imposing a penalty upon those who live together as man and wife, without
being married, is part of the marriage act, wherein is provided how marriage contracts
may be entered into and solemnized.
3. Notes:
a. Without being married – he sees it as following the statutory requirements.
b. With religion, just go to a judge; don’t have to go to a church.
4. Justice Johnston
a. It cannot be doubted that the purpose of the statutory regulation is wise and salutary.
They give publicity to a contract which is of deep concern to the public, discourage
deception and seduction, prevent illicit intercourse under the guise of matrimony, relieve
from doubt the status of the parties who live together as man and wife, and the record
required to be made furnishes evidence of the status and legitimacy of their offspring.
5. Justice Horton’s concurrence
a. There is no requirement to the registration and performance of a marriage under the
Kansas statutes
6. Justice Valentine’s concurrence
a. There was no marriage here at all – there was not common law marriage because what
the parties agreed to was not a marriage
b. The parties lived together, but had no intention of creating that relation or status known
and defined by law and by customs and usages of all civilized society as marriage
c. This living together under such circumstances did not in law constitute a valid marriage
viii. Review of Common law marriage
1. KS: KSA 23-101 – The state of Kansas shall not recognize a common law marriage contract if
either party to the marriage is under 18 years of age.
2. Elements;
a. A capacity to enter into marriage
b. A present agreement to be married
c. The holding out to the community of being husband and wife
3. the present agreement to be married is the most difficult to show because couples gradually
begin to hold themselves out as married without an explicit agreement to be married until
something happens to the relationship, forcing a determination of their actual intent.
4. there is no time limit for common law marriage – the marriage is formed once the elements are
present
5. A valid CL marriage is a legal marriage, with all the incidents of a statutory marriage.
Therefore, on a scholarly level the only legal way to terminate a common law marriage is
through divorce. On a practical level, however, if the couple breaks of the relationship and
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enters into a statutory marriage with someone else, this may be used as evidence that there
was no present agreement to b e married.
6. The rationale for a common law marriage originally came from the problems of having a
statutory marriage in the new frontier. Today the rationale is to have a vehicle to give legal
status to a de-facto relationship in which the equities favor calling the relationship a marriage.
7. States that have CL marriage: AL, CO, IA, KS, MT, NH, OK, PN, RI, SC, TX, UT and DC.
8. Common law marriage on a practical level:
a. Have to be aware of the equities and fairness
b. Have to act like you are married
c. If don’t follow marital behavior, even if you have all elements present
d. If they develop other relationships, they wouldn’t have acted like that if they really
thought they were married.
c. Regulation of Marriage and Annulment
i. Kansas Statutes
1. 23-101
a.
(a) The marriage contract is to be considered in law as a civil contract between two parties who are of opposite
sex. All other marriages are declared to be contrary to the public policy of this state and are void. The consent of
the parties is essential. The marriage ceremony may be regarded either as a civil ceremony or as a religious
sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.

(b) The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage
contract is under 18 years of age.

2. 23-102

3. 23-104(a) –
a. Marriage may be validly solemnized and contracted in this state after a license has been
issued: By the mutual declarations of the two parties, made before an authorized
officiating person and in the presence of at least two competent witnesses over 18 years
of age, other than the officiating person.
b. List of who are authorized to be officiating persons
4. 23-105
a. Registered with the supervision of the secretary of health and environment
5. 23-106
a. Issuance of Marriage License
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b. No clerk or judge shall issue a license authorizing the marriage of any person under the
age of 18, without the express consent of such persons father, mother or legal guardian
and consent of the judge
6. 23-107 Forms for licenses, issuance, photocopy to applicant; computer generated licenses
7. 23-108(a) – License fee; disposition
8. 23-109(Marriage certificate, recording marriages
9. 23-110 Records of marriages; indexing; certified copies or abstracts
10. 23-111 Penalty for not complying with statutory requirements
11. 23-112 Copy of licenses returned kept by court personnel
12. 23-114 – Proof of relationship of parties; penalty for granting license to parties not
entitled without examination
13. 23-115 Validity of Marriages contracted without state
a. All marriages contracted without this state, which would be valid by the laws of the
country in which the same were contracted, shall be valid in all courts and places in this
state. It is the strong public policy of this state only to recognize as valid marriages from
other states that are between a man and a woman.
14. 23-116 Validation of certain marriages; performance of marriage by Baha’is assemble
15. 23-116a – Solemnizing marriage; persons not authorized; penalty
16. 23-117 –Records or copies as evidence
17. 60-1602 – Grounds for Annulment
a. The district court shall grant a decree of annulment of any marriage for either of the
following grounds (1) the marriage is void for any reasons or (2) the contract of marriage
is voidable because it was induced by fraud.
b. The district court may grant a decree of annulment of any marriage if the contract of
marriage was induced by mistake of fact, lack of knowledge of a material fact or any
other reason justifying rescission of a contract of marriage.
18. Kansas constitution Art. 15 § 16 (a) the marriage contract is to be considered in law as a civil
contract. Marriage shall be constituted by one man and one woman only. All other marriages
are declared to be contrary to public policy of this state and are void. (b) No relationship, other
than a marriage, shall be recognized by the state as entitling the parties to the rights or
incidents of marriage.
19. DOMA – 1 USCA § 7, 28 USCA 1738C
a. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the word “marriage” means only a legal union
between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the
opposite sex who is a husband or a wife.
b. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any
public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a
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relationship between persons of the same sex that is treated as a marriage under the laws of such other State,
territory, possession, or tribe, or a right or claim arising from such relationship
ii. Common Law Capacity to Marry Elements:
1. Sufficient Age
a. At common law, 12 years old for females and 14 for males. If one or both of the parties
are below these ages, this results in a void marriage
2. No other lawful spouse
3. Not too closely related
4. Requisite Mental Capacity – to understand the nature of the marriage contract and the duties
and responsibilities of marriage
5. Opposite gender
iii. Kansas capacity to marry elements
1. Sufficient Age
2. No other lawful spouse
3. Not too closely related
4. Requisite mental capacity
5. Kansas – opposite gender

iv. Void, Voidable and Valid


1. void – invalid from its inception – cannot be made valid, can be terminated by either party
without a divorce or annulment
a. Void Marriages in KS Ks. Stat 23-101
i. Incest 23-102, 21-3602 and 21-3603
ii. Bigamy 21-3601
iii. Mental incompetency
iv. Below the common law age of consent (14 boys, 12 girls)
2. Voidable – initially invalid but remains in effect unless terminated by court order. It can be
ratified once the impediment to a legal marriage has been removed. Parties can continue
relationship, once they find out about the defect.
a. Voidable because it was induced by fraud
i. i.e. pregnancy by another man and concealment from the husband
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ii. at common law deceit about chastity, health, character, social position, wealth,
nationality, previous history or habits, divorce status, were not sufficient grounds
for fraud
iii. mistake of fact
iv. lack of knowledge of a material fact
b. Under annulment statute – induced by fraud.
c. CL – only one – pregnancy by another man and concealment from the husband. Other
fraud didn’t vitiate
d. Lack of capacity for copulation
3. Impermissible but valid
a. Noncompliance with statutory requirements for a license
b. Failure to get parental consent if under 18, but older than the common law age of
consent
c. 3 day waiting period
d. number of witnesses
e. etc, seen as discretionary only if the status of the marriage is not addressed in)
f. Says don’t do this, but doesn’t say what consequences are
4. Who can attack marriage validity
a. Void – anyone with an interest in the status of the marriage
b. Voidable – parties (husband and wife) in interest, who has clean hands, before the death
of the other party

5. Is a Decree of annulment necessary


a. Void – No (but advisable)
b. Voidable (yes
6. Rights of alimony
a. Void – none at common law
b. Voidable – none at common law
c. KS allows maintenance under KS St. 60-1610
7. Effect of an order of alimony previously being paid to the void or voidable marriage BEFORE
the void or voidable marriage
a. Void – the prior alimony award may be reinstated if equitable to do so
b. Voidable – not reinstated
8. Status of children
a. Void – at common law no parentage responsibilities
b. Voidable – at common law no parentage responsibilities
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c. KS – children’s parentage is presumed under the KS Parentage act 38-1114(a) (2).
Current KS law is that both parents are responsible for their children, regardless of
whether they were married to each other
9. Tax ramifications
a. Void – must refile as a single people during the time of marriage
b. Voidable – no refilling necessary
10. Can the marriage be ratified after the defect is gone?
a. Void – No, (however, if a state recognizes common law marriage, a common law
marriage may form after the removal of the defect
b. Voidable – in some cases
c. Some benefits may also be affected by the status of the marriage
d. Social security – marriage terminates benefits, but if the marriage is void, then the
benefits can be reinstated from the time of the marriage. If the marriage is voidable and
there is an annulment, then the benefits will be reinstated at the time of the annulment.

v. Sufficient Age
a. Statutory and Common law for Kansas – 18 years old
b. Under Kansas case law, statutory marriages of females at least 12 years old and males
at least 14 years old but under statutory age (where the parties lie about their true age)
result in valid marriages (See Browning) in which the failure of a man to obtain his
parents consent to a marriage because he was underage nonetheless resulted in a valid
marriage, the court holding that the regulation of parental consent was merely directory.
c. Browning – Man was 19, parental consent was 21, and he lied on marriage license.
Impermissible but valid. (If the other party was dooped, may be able to get a
discretionary marriage)
vi. No other lawful spouse
1. Reynolds v Reynolds
a. Charging George Reynolds with bigamy, in violation of the statutes.
b. Court:
i. He argued it was an accepted doctrine of his church to practice polygamy.
ii. At common law, the second marriage was always void and from the earliest history
of England, polygamy has been treated as an offense against society
iii. Marriage is a civil contract and is usually regulated by law
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iv. To permit this would be to make the professed doctrines of religious beliefs
superior to the law of the land, and in effect to permit every citizen to become a
law unto himself.
vii. Not too closely related
1. KSA 23-102 – All marriages between parents and children, including grandparents and
grandchildren of any degree, between brothers and sisters of the hone half as well as the
whole blood, and between unless and nieces, aunts and nephews, and first cousins are
incestuous and absolutely void.
2. In re Loughmiller
a. Owen and Peggy were first cousins and were married in CO. Divorce was interrupted by
death. Owen had executed a will which omitted any mention of Peggy. Peggy filed to
take one half under the elective share.
b. Court:
i. The general rule with regard to recognition of marriages solemnized elsewhere is
that if the marriage is valid where contracted, it is valid everywhere.
ii. Exceptions to the rule are
1. polygamous marriages and marriages incestuous according to the principles
of Christendom
2. marriages prohibited by the forum state for public policy reasons
iii. Three reasons for prohibiting incestuous marriages
1. They are forbidden by ecclesiastical law
2. inbreeding is thought to cause a weakening of the racial and physical quality
of the population
3. they prevent the sociological consequences of competition for sexual
companionship
iv. First cousin marriages were not prohibited at common law
1. We cannot find that a first cousin marriage validly contracted elsewhere is
odious to the public policy of this state
2. Marriage is valid
c. Notes:
i. General rule is that marriages which are valid in the jurisdiction where they are
celebrated are valid everywhere.
ii. Exception: the marriage violates public policy.
iii. Look at what the statute says the status of the marriage would be if celebrated in
the forum state
1. Look at persuasive authority from other statutes
2. Look to see if the marriage is evasive!!!!
3. Israel v. Allen
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a. Martin and Tammy are brother and sister related by adoption and are not related by
either the half or the whole blood. Raymond adopted Tammy. (Raymond married
Tammy’s mom)
b. Court:
i. The objections that exist against consanguineous marriages are not present where
the relationship is merely by affinity.
ii. The physical detriment of offspring is absent
4. KSA. 23-102
a. Kansas St. 23-102 does not prohibit brothers and sisters by adoption from marrying one
another.
b. Attorney general says that KS law does not prohibit the issuance of a marriage license to
such applicants because KSA 23-102 prohibits marriages only between brothers and
sisters of the one half as well as the whole blood

viii. Requisite Mental Capacity


1. Edmunds v. Edwards
a. Edmunds, guardian of the estate of Harold Edwards against Inez to annul the marriage of
Harold and Inez.
b. The guardian alleges that the marriage was void for the reason that Harold did not have
the mental capacity to enter into the marriage.
c. Court:
i. The state is always a party whose interests must be taken into account.
ii. There be such a mental defect as to prevent the party from comprehending the
nature of the contract
iii. Absolute inability to contract, insanity, or idiocy will void a marriage, but mere
weakness of mind will not, unless it produces a derangement sufficient to avoid all
contracts by destroying power to consent.
d. DID HE HAVE MENTAL CAPACITY WHEN HE SAID I DO?
i. Critical time is at the time of marriage
ii. Have to understand rights, duties and obligations
iii. If don’t understand, then marriage is void
iv. *Takes a very, very low level of requisite capacity*
1. i.e. being high or having a couple of beers is not enough, A lot more is
needed
2. A marriage is valid if the party has sufficient capacity to understand the nature of the contract
and the obligations and responsibilities it creates.
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ix. Opposite Gender
1. MT v. JT
a. MT was a male-to-female transgendered and therefore a male, resulting in an invalid
marriage because of lack of capacity. MT was born a male. She underwent surgery for
removal of the male sex organs. After the operation, she married a male, JT. Lived as H &
W.
b. Court:
i. Corbett – biological sex is fixed at birth.
ii. They don’t join the Corbett holding
iii. They go with an anatomical test – the genetalia of an individual is in most
instances indispensable.
c. Different options
i. Sex determined at birth (Corbett)
ii. Timing – ate time of marriage, look at gender as it is presented by the body
iii. Pure psychological
2. The Kansas SC has decided this issue, reaching the same conclusion as the English case of
Corbett v. Corbett, that a person’s sex is determined at birth.
3. Littleton v. Prange
a. The TX court of appeals held that as a matter of first impression that a marriage
contracted in a different state between a male and a post operative male to female was
not valid
4. Ks Statutes
a. 23-101 – The marriage contract is to be considered in law as a civil contract between two
parties who are of the opposite sex. All other marriages are declared to be contrary to
the public policy of this state and are void
b. Kansas Constitution – The marriage contract is to e considered in law as a civil contract.
Marriage shall be constituted by one man and one woman only. All other marriages are
declared to be contrary to public police of this state and are void. No relationship, other
than a marriage, shall be recognized by the state as entitling the parties to the rights or
incidents of marriage.
x. Misc. Regulation
1. Loving v. Virginia
a. Appeal of the conviction of a Caucasian man and an AA woman under a VA statute that
made it a felony for a white person to married a colored person.
b. Court:
i. Rejected the notion that the mere equal application of a statute containing a racial
classification is enough to remove the classifications from the 14th Amendment’s
proscription of all invidious racial discriminations.
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ii. Marriage is one of the basic civil rights of man, fundamental to our very existence
and survival
2. Zoblocki v. Redhail
a. This is a class action seeking declaratory and injunctive relieve, based on equal
protection and due process, striking down a WI statute that required court approval
before someone who had a support order could marry.
b. Court:
i. Unconstitutional under the EPC.
ii. Since the right to marry is of fundamental importance
iii. Since means selected by the state unnecessarily impinged on the right to marry.

3. Rickards v. Rickards
a. The statute at issue provides a ground for annulment as incurable physical impotency or
incapacity for copulation.
b. Wife had sustained the burden of proving that the husband was sexually impotent
xi. Same Sex Marriages/Domestic Partnerships
1. FILL IN!
xii. Annulment
1. KSA 60-1602
a. The district court shall grant a decree of annulment of any marriage for either of the
following grounds (1) the marriage is void for any reasons; or (2) the contract of
marriage is voidable because it was induced by fraud
b. The district court may grant a decree of annulment of any marriage if the contract of
marriage was induced by mistake of fact, lack of knowledge of a material fact or any
other reason justifying rescission of a contract of marriage.
i. (b) is voidable!!!!
2. Discretionary Annulment
a. (subsection b)
i. Mistake of fact
ii. Lack of knowledge of a material fact
1. use the materiality test – would the person have entered the marriage
contract if he or she would have known all the facts
2. (these grounds were not grounds at common law. Could lie about anything
and lie not sufficient to annul marriage.
3. Remember: it is lack of capacity that prevents the marriage from taking
effect, not by the lie)
iii. any other reason
1. incurable impotency
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2. jest
3. duress
iv. remarriage before a divorce is final KSA 60-1610, if appeal, until appeal becomes
final
v. once valid, goes back to date of saying I do.
3. Curative Device
a. Cure’s to a full marriage
4. Mitigative Device
a. Doesn’t give full marriage – some rights, but not a full marriage
d. Rights and Duties Within a Marriage
i. Married Woman’s Property Act 23-201
1. The property, real and personal, which any person in this state may own at the time of the
person’s marriage, and the rents, issues, profits or proceeds thereof, and any real personal or
mixed property which shall come to a person by descent, devise or bequest…shall remain the
persons sole and separate property, not withstanding the marriage, and not be subject to the
disposal of the other person’s spouse
2. All property owned by married persons, including the present value of any vested or unvested
military retirement pay, or, for divorce or separate maintenance, etc, shall become marital
property at the time of the commencement by one spouse against the other of an action in
which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse
has a common ownership in marital property which vests at the time of commencement of
such action.
ii. Family Autonomy
1. Kilgrow v. Kilgrow
a. Jack filed a petition seeking a temporary injunction restraining his wife from interfering
with the P’s right to carry the child to Loretta school to resume her education.
b. Court:
i. If this was a proceeding to determine the child’s custody the equity court would
have jdx for that purpose.
ii. The inherent jdx of courts of equity over infants is a matter of necessity, coming
into exercise only where there has been a failure of that natural power and
obligation which is the province of parenthood.
iii. We do not think a court of equity should undertake to settle a dispute between
parents as to what is best for their minor child when there is no question
concerning the child’s custody.
c. Notes:
i. Only get involved when there is some sort of rupture in the family
ii. Won’t enforce prenup – separation of church and state
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iii. This is a classic example of the family autonomy approach that courts take to
disputes in on-going families – it is a hand off approach that the family must
resolve the dispute without court intervention
iv. Only where there has been a failure of that natural power and obligation which is
the province of parenthood such as a broken home or neglect or a natural
custodian’s incapacity, unfitness or death
v. Intervention, rather than prevention or healing a disruption, would quite likely
serve as the spark to a smoldering fire
iii. The Duty of Support
1. KSA 21-3605
a. (b) (1) Nonsupport of a spouse is an individual's failure without just cause to provide for the support of such
individual's spouse in necessitous circumstances
2. KSA 21-3606
a. Repealed.
3. McGuire v. McGuire
a. Wife worked in the fields, did outside chores, cooked and attended to her household
duties such as cleaning the house, raised as high as 300 chickens, etc. For the past four
years, D had not given the P money to purchase furniture or other household necessities.
b. Court:
i. It was a well established rule of law that it is the duty of the husband to provide his
family with support and means of living.
ii. But, in light of the cited cases it is clear, especially so in this jdx, that to maintain
an action such as the one at bar, the parties must be separated or living apart
from each other.
iii. The living standards of a family are a matter of concern to the household, and not
for the courts to determine
iv. As long as the home is maintained and the parties are living as husband and wife it
may be said that the husband is legally supporting his wife and the purpose of the
marriage relation is being carried out.
v. As long as you are living with this man, court presumes he is supporting you. (have
to be living separate and apart to get legal remedy)
vi. FAMILY AUTONOMY
vii. Only in those cases involving husbands and wives who had been living separate or
apart the court will issue a spousal support order
4. Law of Necessities
a. 3rd party sues – wife can’t use it
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b. Under traditional common law doctrine of necessities, a husband who was derelict in
furnishing food, shelter and medical services to his wife was liable to a third party who
provided these necessaries to the wife
i. However, because the wife was deemed legally incapable of incurring an obligation
independent of her husband, and because the husband was legally and exclusively
responsible for providing the necessaries to the entire family unit, there was no
reciprocal liability on the part of the wife to a third party for providing the
necessaries of the husband.
c. Historically it only applied to husbands.
5. St. Francis v. Bowles
a. Is Tamara liable for Edward’s medical expenses as a matter of law even though she did
not contract with St. Francis for her husband’s care?
b. Court:
i. Expands doctrine to apply to husband and wives equally
ii. It is hereby expanded to apply to husbands and wives equally; however, before a
creditor may seek payment from a spouse the creditor must first pursue collection
from the person who received the necessary goods or service. Only if the spouse
who rec’d the benefits has insufficient resource to satisfy the debt may the other
spouse be liable. Such liability is not automatic; the second spouse may raise
defenses available.
iii. Must first pursue collection from the person who received the goods or services.
iv. Ks says doctrine comes out of agency – that husband is agent
iv. A Married Woman’s Name
1. Stuart v. Board of Supervisors of Elections for Howard County
a. In accordance with the couple’s oral antenuptial agreement, Stuart continued after the
marriage to use and be known by her birth given name. The board of Supervisor’s of
elections notified her that since under MD law a woman’s legal surname becomes that of
her husband on marriage, she was required by MD code to complete a request for
change of name. She did not complete the form and her registration was cancelled.
b. Court:
i. If a married woman may lawfully adopt an assumed name without legal
proceedings, then we think MD law manifestly permits a married woman to retain
her birth given name by the same procedure of consistent, non-fraudulent use
following her marriage
ii. we hold that a married woman’s surname does not become that of her husband
where she evidences a clear intent to consistently and non-fraudulent use her birth
given name subsequent to her marriage
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c. CL Doctrine of name change by repute – you are who you say you are – as long as it is
not for fraudulent purposes
v. Summary
1. General principle for intact ongoing marriages – court has adopted a hands off policy. Won’t
resolve disputes in an ongoing marriage
2. Doctrine of coveture – now applied that rights and duties flow to both spouses – Responsibility
of support can now be on W
3. unless a statute that says otherwise, can keep a maiden name
e. Non-Marital Relationships
i. Marvin v. Marvin
1. P says that the parties entered into an oral agreement that while the parties lived together
they would combine their efforts and earnings and would share equally any and all property
accumulated as a result of their efforts whether individually or combined. Had an agreement to
hold each other out to the general public as husband and wife. P agreed to give up her
entertainment career and devote herself full time to the D.
2. Court:
a. The courts should enforce express contracts between non-marital partners except to the
extent that the K is explicitly founded on the consideration of meretricious sexual
services
b. In the absence of an express contract, the courts should inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied K, agreement of
partnership or joint venture, or some other tacit understanding between the parties
c. The courts may also apply the doctrine of quantum meruit or equitable remedies such as
a constructive or resulting trust when warranted by the facts of the case.
d. The fact that a man and a woman live together without marriage, and engage in a sexual
relationship does not in itself invalidate agreements between them relating to their
earnings, property or expenses. – Fail only to the extent they rest on consideration of
sexual services
e. They can’t lawfully contract to pay for the performance of sexual services but they may
agree to pool their earnings and to hold all property acquired during the relationship in
accord with the law governing community property
3. 5 legal theories she raises – she loses, but created five causes of action – that is what the case
law stands for
a. implied contract
b. express contract
c. quantum meriut
d. constructive trust
e. resulting trust
Family Law Outline – Spring 2009 (17 of 77)
ii. Hewitt v. Hewitt
1. P lived with the D for 15 years in an unmarried, family like relationship to which three children
have been born, may recover from him an equal share of the profits and properties
accumulated by the parties during that period. D promised he would share his life, his future,
his earnings and his property with her and all of D’s property resulted from the parties’ joint
endeavors. P became pregnant, told her they were husband and wife and would live as such.
2. Court:
a. An agreement in consideration of a future illicitly cohabitation between the P is void
b. Hold that P’s claims are unenforceable for the reason that they contravene public policy,
implicit in the statutory scheme of the IL marriage and dissolution of marriage act,
disfavoring the grant of mutually enforceable property rights knowingly to unmarried
cohabitatants.
c. She alleged Express K, Implied K, trust, and unjust enrichment. IL SC says these causes
of action are no good.
3. Notes:
a. The court notes that most cases coming under the causes of action stated in the Marvin
case would not be cases of express contract, but rather, implied contracts, requiring the
court to look at the details of the parties living arrangements. However, the court goes
onto say that there is more here than just issues of contract law and equity and fairness
between the parties who live together outside the marriage relationship.
iii. Eaton v. Johnson
1. P and D were married. They were later divorced but then resumed living together for about 2
1/2 years. P filed a petition seeking an adjudication that a common law marriage did not exist.
2. Court
a. 60-1610 has been construed as giving the trial court discretion to divide property even
where no request or demand in the pleadings is made
b. Court of appeals correctly held that the trial court in the exercise of its inherent power to
do equity independent of the statute was authorized to make an equitable division of the
property accumulated by the parties during the period they were living together.
c. We conclude that 60-1606 does not authorize a district court to make an equitable
division of property of the parties after a finding that no common law marriage existed
3. Notes:
a. Different legal theories that the SC of KS established that a court could use to divide
property acquired in a non-marital cohabitation situation
i. The trial court, in the exercise of its inherent authority to do equity…was
authorized to make an equitable division of the property accumulated by the
parties during the period they were living together
Family Law Outline – Spring 2009 (18 of 77)
ii. The court has the same power to make equitable division of the property so
accumulated as it would have in case of the dissolution of a business partnership
iii. This cause is remanded for division of such property as may have been jointly
accumulated by the parties or acquired by either with the intent that both should
have an interest therein (i.e. express or implied contract) during the period they
lived together following their divorce….all in a manner as the court in its discretion
may find to be just and equitable
b. KS is an equitable division state - exactly the same remedy as divorce
c. Can look at it as a business, divide like a partnership
d. To discern their intention – express or implied K
e. In this case – Intent controls
f. If parties don’t have a prenup before they get married, intent does not control!
g. Marriage
i. Common law
ii. Statutory
iii. Divorce statutes
h. Contractual cohabitation
i. Remedies will be given depending on intent
iv. Vermont Civil Unions
1. be of the same sex and therefore excluded from the marriage laws of this state, not be a party
to another civil union or a marriage, and under 1203 not be too closely related
v. Marriage, Domestic Partnerships and Civil Unions
1. California: Domestic partners are two adults who have chosen to share one another’s lives in
an intimate and committed relationship of mutual caring and both have a common residence,
neither is married or a member of another domestic partnership, the two persons are not
related by blood in a way that would prevent them from being married to each other in this
state, both are 18 years of age, both are of the same sex, or one or both meet the eligibility
criteria for old-age insurance and at least over the age of 62
2. Hawaii Reciprocal benefits relationship – each of the parties must be at least 18 years old, not
married nor a party to another reciprocal beneficiary relationship, must not be legally
prohibited from marrying one another, such as two individuals related to each other or of the
same gender.
II. Divorce
a. Fault Divorce
i. Preview
1. Divorce law comes from jurisprudence in ecclesiastical courts
2. Only allowed to separation to someone who is faultless. Could not if they committed the wrong
themselves.
Family Law Outline – Spring 2009 (19 of 77)
3. 4 possible disputes
a. custody
b. alimony
c. property
d. fight over whether to get a DV or not
4. Current grounds in Kansas
a. Incompatibility – preferred grounds
b. Failure to perform a material marital duty (it is in fact all of the fault grounds)
5. Divorce – termination of a valid marriage whereas annulment is a declaration by a court that a
purported marriage was invalid from its beginning of defects existing at the time it was
contracted
6. grounds for divorce must exist at the time of filing of the petition
ii. Traditional fault
1. Adultery
a. Voluntary sexual intercourse of a married person with someone other than that person’s
spouse
b. The rule has thus developed that it may be proved by circumstances which indicate (a)
the opportunity to commit adultery existed and (b) the disposition or inclination to
commit it existed.
c. The wife’s bearing a child which is not that of the husband is such evidence
d. Evidence that the D had a venereal disease is also a prima facie indication of adultery
e. As a general rule, voluntary intoxication is not a defense to adultery.
f.
2. Mental Illness
a. Not technically a fault ground for DV in Kansas
b. Under the current statute, this ground is listed separately and defined separately and is
now framed in terms of a special form of incompatibility – incompatibility by reason of
mental illness or mental incapacity of one or both spouses. This time for the confinement
is now 2 years, with 2 out of 3 doctors finding the mentally ill spouse has a poor
prognosis of recovery from the mental illness based on general knowledge available at
the time. As in the past, a decree on this ground does not relieve the other spouse from
contributing to the support of the mentally ill spouse.
c. It may also be used for a defense -
3. Desertion/abandonment
a. Kansas – abandon for one year
b. Elements
i. Voluntary separation
ii. Intent not to resume
Family Law Outline – Spring 2009 (20 of 77)
iii. Without consent
iv. Without justification
c. Voluntary separation by one spouse from another with the intent not to resume marital
cohabitation without the consent of the other spouse and without justification
d. The abandonment must be continuous. An offer to resume marital cohabitation ends the
running of the one year period
e. Some states still have held that refusal to have sexual relations constitutes
abandonment even though the parties still share the same residence.
f. Constructive abandonment occurs when conduct of one spouse forces the other to leave
the residence
g. If the parties separate and one sues for divorce on grounds other than desertion and
loses, the time spent in the litigation cannot be counted in arriving at the statutory
period which must elapse before the other spouse may sue for desertion.
h. Voluntary separation
i. When one spouse leaves home and has nothing further to do with the other
spouse, his action may easily be characterized as voluntary
ii. Where he leaves because he is required to go to the army, this is not
abandonment
iii. If the D showed by his conduct or statements that he did not intend to remain
away permanently, he is not a deserter
iv. If the withdrawal is justified by the other’s misconduct, it does not amount to
desertion
i. Consent and justification
i. Does not occur if the parties live apart by mutual agreement
ii. If the husband moves and the wife refuses without justification to accompany him,
she is guilty of desertion
j. Offers of reconciliation
i. After a desertion has occurred, it is usually held that the wronged spouse need not
make an attempt at reconciliations as a condition upon being able to get a divorce
ii. If the deserting spouse, on the other hand, should offer in good faith to return and
resume living as husband and wife, this has a dual effect
iii. If the offer is refused, the innocent spouse becomes a deserter and the statutory
period begins to run from the time of the refusal. If the refusal is persisted in for
statutory period, a ground for divorce accrues to the party who originally left the
domicile
4. cruelty
a. Elements
i. Unjust and long practiced course of conduct
Family Law Outline – Spring 2009 (21 of 77)
ii. By one spouse towards the other
iii. Which utterly destroys the legitimate ends and objects of matrimony
5. neglect of duty
a.
6. drunkenness/drug use
a. required a lot – had to have extreme alcoholism
7. felony
a. the conviction must be followed by imprisonment
iii. History of Divorce
1. Lindbloom v. Lindbloom
a. D had P admitted to Osawatomie state hospital, He said the children were not being
cared for properly, their hair was straight, they weren’t kept clean, the housework was
not well done, and there was considerable waste of food and utilities
b. Court:
i. It is not mere neglect of marital duty. The adjective gross has a legal force as
descriptive of the party neglecting duty
ii. If the wife should become ill and be unable to perform her household duties as well
as she ordinarily would perform them, we would not be willing to say that the H
was entitled to a DV because of that situation.
iii. The evidence did not justify granting of a divorce to D
iv. Gross neglect of duty – each case is fact specific and must be examined by itself.
However, mere neglect is not enough, it must be accompanied by indignity and
aggravation

2. Carpenter v. Carpenter
a. Husband sued for divorce on ground of gross neglect of duty only. Wife charged the
husband with abandonment, extreme cruelty and gross neglect of duty. He was to
secure a place to live and establish a home for his wife and baby. They decided to live
six months apart so that appellant could determine who she might then feel toward him.
He agreed they could live apart.
b. Court:
i. Extreme cruelty is not limited to acts of physical violence. Any unjustifiable and
long practice courts of conduct by one spouse towards the other which utterly
Family Law Outline – Spring 2009 (22 of 77)
destroys the legitimate ends and objects of matrimonial constitutes extreme
cruelty though no physical or personal violence may be inflicted or threatened.
ii. The record in this case is wholly devoid of anything indicating that appellant’s
conduct was accompanied by indignity and aggravation.
c. Extreme Cruelty
i. Unjustifiable and long practiced course of conduct
ii. By one spouse towards the other
iii. Which utterly destroys the legitimate ends and objects of matrimony
d. Gross neglect of duty
i. Gross neglect of duty is indefinite and is difficult to lay down any general rule by
which every case can be determined to be within or without its limits. Each case
must be examined by itself.
ii. Gross – has legal force
iii. There must not only be a default, but the default must e attended with
circumstances of indignity or aggravation.
iv. Abandonment for one month or ten, although it involves a total neglect of all
marital duty, is not gross neglect of duty within the statute – something more than
mere neglect, although it is a neglect of all duty, is requisite. If neglect alone is
shown, it must be a total neglect, and continue for a year.
e. Notes:
i. Conduct which utterly destroys legitimate ends and long practice of marriage =
has to be directed at a person, like an intentional tort,
3. Talman v. Talman
a. The parties had lived in a quarrelsome relationship for some years. One of the chief
causes of controversy appears to have been D’s mother. It appears that many of their
arguments stemmed from the relationship of D’s mother to their family.
b. Court:
i. D encouraged and condoned her mother’s interference in the marital life affairs of
P and D
ii. A course of conduct on the pat of one spouse which has become intolerable to the
other, so as to disrupt domestic harmony and to destroy legitimate matrimonial
objectives, has often been characterized as behavior amounting to extreme cruelty
iii. Cruelty as a ground for divorce is generally a course of conduct rather than a
single act
c. How does the KS SC change the definition of extreme cruelty in this case?
i. Carpenter 1948
1. unjustifiable and long practiced course of conduct
2. by one spouse towards the other
Family Law Outline – Spring 2009 (23 of 77)
3. which utterly destroys the legitimate ends and objects of matrimony
ii. Talman 1969
1. a course of conduct
2. on the part of one spouse which becomes intolerable to the other spouse
3. so as to disrupt domestic harmony and to destroy legitimate matrimonial
objectives
iv. Fault Divorce Defenses
1. Misc.
a. Kansas has morphed extreme cruelty into incompatibility
b. If we use last cases in extreme cruelty, we have incompatibility
2. Divorce Defenses
a. IN fault based divorce, there are going to be defenses, to prevent a person from getting
a remedy.
b. Overriding public policy of maintaining marriage is done through defenses.
i. Unclean hands – no remedy
ii. ONLY NON FAULTY PERSON CAN GET A REMEDY – not going to give a remedy to a
faulty party!!
c. Connivance
i. This involves the participation of one spouse who is seeking the divorce in creating
the grounds for divorce or developing the grounds for divorce.
ii. The idea is the consent to the grounds – this usually involved adultery cases.
(persuading a spouse to commit adultery or having someone seduce the spouse)
iii. Merely gathering evidence is not connivance. However, there is a disagreement
among the cases if mere acquiescence, acceptance, indifference or not trying to
prevent the adultery is sufficient to prove connivance.
iv. Almost entirely limited as a practical matter to actions brought on the ground of
adultery
v. If the P originally consents to the adultery, he will not later be allowed to change
his mind and say that he no longer consents
vi. P’s consenting to the D’s wrong
vii. Active participant in the adultery, urging that it be committed, by exposing the
wife to improper company, or employing agents to seduce the wife,
viii. He must know of the offense, negligence or inattention is not being enough
d. Collusion
i. Parties will attempt collusion
ii. Involves the parties agreeing that one of them should commit a found for divorce
or that they should pretend or lie about the grounds being committed.
Family Law Outline – Spring 2009 (24 of 77)
iii. An agreement between two parties for one to commit, or appear to commit, a fact
adultery, in order that the other may obtain a remedy at law
iv. The agreement that one party will actually commit a marital wrong in order to give
grounds for divorce, constitutes connivance
v. Connivance depends on consent that a marital offense actually be committed,
while collusion involves agreement that the martial offense appear to be
committed
vi. Collusion requires an agreement – Keyed on an agreement whereas connivance is
not keyed on an agreement – it is the participation of one spouse
vii. Collusion has the parties agreement
viii. This protects the third party to the marriage – the state
ix. Both parties desiring a divorce is not collusion, nor is it the failure to defend a
divorce. The agreement not to defend a divorce is collusion however.
1. A property settlement agreement that conditions the award of property or
support upon one of the parties filing for and obtaining the divorce is
collusion, but if the agreement merely says that it is conditional upon the
court granting a divorce, then the agreement is not collusive.
e. Distinguish Connivance from Collusion
i. Collusion requires mutual agreement that one of the parties commits or appears to
commit an act that is grounds for divorce. Connivance does not require mutual
consent, but rather requires the actual performance of the act.
f. Condonation
i. There are three elements to condonation:
1. The nonfaulting spouse condones the marital wrong when he or she, with full
knowledge of the offense, forgives the faulting party and resumes marital
intercourse and the faulting party treats the nonfaulting party with conjugal
kindness.
2. if the faulting spouse does not treat the non-faulting spouse with kindness,
the old offense is revived and the nonfaulting spouse can sue for divorce.
ii. When a resumption of marital intercourse occurred with knowledge of the D’s
offense, the offense was presumed remitted and the p could not have a divorce
iii. Marital intercourse and remission or forgiveness of the offense
iv. Condonation be voluntary and with knowledge of the facts
v. Proof that P not only knew of the marital offense in the sense of possession of
information that it happened, but that he believed and emotionally accepted the
information.
vi. Elements:
1. resumption of cohabitation
Family Law Outline – Spring 2009 (25 of 77)
2. sexual intercourse with forgiveness
3. treat spouse with conjugal kindness – treat person well and
4. HAVE TO HAVE FORGIVENESS IN COMMON LAW REQUIREMENTS
g. Delay in Bringing Suit
i. Delay in suing, may, when coupled with a resumption of marital relations, amount
to condonation which bars divorce
ii. Actions are barred if brought after the expiration of the period of limitation
iii. Can’t know about adultery and just sit on it
h. Recrimination
i. ONLY NON FAULTY PERSON CAN GET A REMEDY – not going to give a remedy to a
faulty party!!
ii. When both spouses have grounds for a divorce, neither may have a decree
iii. It now prevents the dissolution of those very marriages most appropriate for
dissolution
i. Comparative Rectitude
i. When both parties to a divorce action are found to be at fault, the divorce may be
granted to the one whose fault is the less serious
ii. Where cruelty is involved, the severity of the parties’ conduct may be evaluated,
but it seems quite difficult to decide whether cruelty is more serious than adultery
more serious than cruelty

j. Provocation – reply to a defense


i. It most often arises in suits based upon cruelty, where the D admits his cruelty but
asserts it was provoked by the conduct of the other spouse
ii. The cruelty which was provoked does not give rise to a cause of action, provided
that the response was not out of proportion to the provocation
iii. It is a reply to a defense
iv. Can only be used where recrimination is not recognized
3. Saint v. Saint
a. Granted a divorce to the P husband on the ground of extreme cruelty.
b. Court
i. Extreme Cruelty is no longer limited to acts of physical violence
ii. Throughout the marriage D became angered at her husband, on which occasions it
was her habit to retire to the basement, or her bedroom, there to sulk and for days
at a time she would refuse to speak to or communicate with her husband
iii. Continued cohabitation, as opposed to a resumption of cohabitation, does not have
the same significance as it does where adultery forms the basis of the action
1. cruelty is generally a course of conduct, rather than a single act
Family Law Outline – Spring 2009 (26 of 77)
2. repetition of an offense after it has been condoned revives the original
offense, and where acts of cruelty are repeated after reconciliation, the
former cruelties are given fresh vitality and may be considered in
conjunction with the new ill treatment.
3. there is nothing in the record to justify an assumption that Mr. S had forgiven
his spouse
4. CONDONATION IS NOT A DEFENSE THAT APPLIES TO A COURSE OF
CONDUCT!
5. Even if it did apply, she continued to reprieve her past acts of extreme
cruelty

b. No Fault Divorce
i. Now starting to look at is this relationship viable?
ii. Some no fault grounds
1. incompatibility
2. irreconcilable differences
3. irretrievable breakdown
4. living separate and apart
5. mutual consent
6. unilateral divorce
iii. Kansas 60-1601
1. a) The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1)
Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental
illness or mental incapacity of one or both spouses.

(b) The ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall require a
finding of either: (1) Confinement of the spouse in an institution by reason of mental illness for a period of two years,
which confinement need not be continuous; or (2) an adjudication of mental illness or mental incapacity of the spouse
by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness. In either
case, there must be a finding by at least two of three physicians, appointed by the court before which the action is
pending, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental
illness or mental incapacity, based upon general knowledge available at the time. A decree granted on the ground of
incompatibility by reason of mental illness or mental incapacity of one or both spouses shall not relieve a party from
contributing to the support and maintenance of the mentally ill or mentally incapacitated spouse. If both spouses are
confined to institutions because of mental illness or mental incapacity, the guardian of either spouse may file a petition
for divorce and the court may grant the divorce on the ground of incompatibility by reason of mental illness or mental
incapacity.

iv. Kansas 60-1602 – Annulment


v. 60-1606 –
Family Law Outline – Spring 2009 (27 of 77)
1. The court shall grant a requested decree of divorce, separate maintenance or annulment unless the granting of the
decree is discretionary under this act or unless the court finds that there are no grounds for the requested alteration of
marital status.
vi. Incompatibility
1. Definition – Burch
a. The court was presented the question of whether incompatibility is unilateral or bilateral
to determine, in part at least, what place this defense may have in an action for divorce
resting on the ground of incompatibility
b. Does not refer to those petty quarrels and minor bickering. Does refer to conflicts in
personality and dispositions so deep as to be irreconcilable and to render it impossible
for the parties to continue a normal marital relationship with each other
c. The disharmony of the spouses in their common life must be so deep and intends as to
be irremediable
2. Various holdings indicate that the elements of incompatibility relate to the personal
differences, conflict of personality, and life style which would disrupt, destroy and derogate the
legitimate goals of a matrimonial relationship
a. These differences must be of such a nature and so well entrenched as to make the
differences irreconcilable. It is imperative in incompatibility cases to make the court
aware of the cause
3. Proof rests on personal differences, conflicts of personalities and lifestyles
a. The shift from placing blame to looking at the viability of the marriage was a process
that took some time -
vii. North v. North
1. The marriage was a disaster from the beginning. She often asked him to go to marriage
counseling but he would refuse. She no longer had any respect for his sincerity; that she no
longer loved him. They had an unsuccessful sexual relationship – he was financially
irresponsible.
2. Unilateral divorce – as it relates to incompatibility – when only one of the parties is
incompatible
3. Definition of incompatibility for Kansas
a. Deep and irreconcilable conflict in the personalities or temperaments of the parties
making it impossible for them to continue a normal marital relationship. It is difficult to
imagine a husband whose temperament is compatible with a wife’s if her temperament
is incompatible with his.
viii. Williams
1. The wife had sued for separate maintenance on the grounds of gross neglect of duty, extreme
cruelty and incompatibility. The husband counter sued for divorce on incompatibility.
Family Law Outline – Spring 2009 (28 of 77)
2. Under the fault system, the husband’s actions of running around with another woman would
have prevented him from getting the divorce.
ix. Cohee v. Cohee
1. Patricia’s petition alleged incompatibility. Terry’s answer and counter petition requested an
absolute divorce on the fault grounds of failure to perform a material marital duty.
2. Court:
a. 60-1601 requires the court to grant the divorce if the evidence establishes one of the
grounds for divorce or separate maintenance.
i. The court does not have the discretionary power to grant the divorce, except when
a petition is filed by a guardian of an incompetent spouse
ii. The new section eliminates the recrimination defense
b. Recrimination is not recognized as a defense to a petition for divorce on the grounds of
failure to perform a material marital duty or obligation
c. Fault, as a term of art, is not to be considered in their determination of the financial
aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of
such consideration.
3. Ks. St. 60-1601
a. The District court shall grant the decree of divorce of divorce or separate maintenance
for any of the following grounds (1) incompatibility; (2) failure to perform a material
marital duty or obligation; or (3) incompatibility by reason of mental illness or mental
incapacity of one of both spouses.
4. Ks St. 60-1606
a. The court shall grant a requested decree of divorce, separate maintenance or annulment
unless the granting of the decree is discretionary under this article or unless the court
finds that there are no grounds for the requested alteration of marital status.
b. Under these two statutes, the court must grant the requested remedy if the grounds
exist. The only discretionary options are (1) under (b) of Ks. St. 60-1602 dealing with
annulment grounds; or (2) under the last portion of 60-1601, which deals with the
divorce being filed by a guardian if both spouses are mentally ill or mentally
incapacitated.
c. Fault Divorce Substitutes
i. Alienation of Affections
1. 23-208 – Alienation of affections actions abolished
There shall be no right to bring an action in this state to recover damages for alienation of affections based on any act
done on or after July 1, 1982.
2. Tort action against a 3rd party for impairment or loss of consortium which includes society,
services, assistance, sexual relations and all that goes with the status of marriage.
3. Intentional interference with the husband wife relationship.
Family Law Outline – Spring 2009 (29 of 77)
4. Elements:
a. Wrongful conduct on the part of the D with the spouse resulting in Loss of affection
(causal connection between the conduct and the loss of affection)
b. The action does not include proof of sexual intercourse; the cause of action is against
any 3rd party who alienates affections – mothers, fathers, etc. It also doesn’t require
proof of a happy marriage – this would only mitigate damages
5. Elements:
a. Wrongful conduct by the D with the P’s spouse
b. The loss of affection or consortium
c. A causal connection between the D’s conduct and the deprivation of consortium
d. The spouses must be validly married.
6. Defenses:
a. Connivance/consent on the part of the P
b. Good faith advice by the D
c. Condonation is not a defense – only mitigates damages
d. Lack of viability of the marriage – only mitigates damages
7. Damages compensate for:
a. Loss of consortium – affection, society, companionship, as well as damages for
humiliation, anguish, disgrace or impairment of reputation; The wife could also sue for
loss of financial support. (prior to equal protection challenges)
8. Long v. Fisher
a. Severely limited the elements for alienation of affections action. Kansas legislature
enacted a statute that stated there shall be no right to bring an action in this state to
recover damages for alienation of affections based on any act done on or after July 1,
1982. Ks. St. 23-208
ii. Criminal Conversation
1. The action at common law was available to the husband alone.
2. requires proof that there was a valid marriage and that the D had adulterous relations with the
P’s spouse.
3. This is a common law tort, which was available only to the husband.
a. The purpose of this tort was to vindicate the husband’s property interest in his wife’s
person (body), the risk being that he might have to support non-biological children and
cast doubt on the legitimacy of his own children and rightful heirs.
4. Elements:
a. Proof of a valid marriage and adultery of the other spouse with the D
5. Defenses:
a. Connivance/consent on the part of the P
Family Law Outline – Spring 2009 (30 of 77)
6. Damages compensate for Humiliation, embarrassment, mental anguish, loss of consortium if
any.
iii. Frederick v. O’Keefe
1. Verdict for $1 actual damages and $50,000 punitive damages for alienation of affection, $1
actual damages and no punitive damages for criminal conversation.
iv. John Miller v. Timothy O’Neill
1. Verdict for $71,000 actual and $100,000 punitive damages for alienation of affections and
$10,000 actual and $40,000 for punitive damages for criminal conversation.

v. Chiles v. Chiles
1. Whether the cause of action for intentional infliction of emotional distress lies in a divorce
action?
2. We decline to recognize IIED as a separate cause of action in a suit for divorce.
3. KS. 60-1627 – Interspousal Tort

(a) An action for interspousal tort shall not be consolidated with an action under KSA. 60-1601, et seq. , and
amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court.

(b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3) of KSA. 60-1601, and
amendments thereto, shall not preclude an action for interspousal tort.

(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 60-1601, and
amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action
for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 60-
1601, and amendments thereto, based upon the same factual allegations.

vi. Covenant Marriage


1. Kansas is not a covenant marriage state
2. Only allow divorce based on fault grounds and/or a longer period of living separate and apart
than for a regular divorce.
3. Marriage entered into by one male and one female who understand and agree that the
marriage between them is a lifelong relationship.
4. Only when there has been a complete and total breach of the marital covenant may the non-
breaching party seek a declaration that the marriage is no longer legally recognized.
vii. Legal Separation
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1. grounds are the same, remedies are the same, but still married.
2. There is a residency requirement for divorce, but it is silent with separate maintenance.
3. If you need immediately, file for separate maintenance and then sixty days later amend to
petition for divorce.
4. they want the benefits of marriage – i.e. health insurance
5. Separate Maintenance – Court ordered, Ks. St. 60-1601, 60-1610
a. Enforced as another judicial decree – contempt, execution, reviver, child support
enforcement
6. Contract – Legal separation
viii.
d. Divorce Jurisdiction
i. Divorce Jurisdiction
1. Ex parte divorce – the absent spouse has been given reasonable notice of the divorce action
and an opportunity to be heard but doesn’t appear
2. Domicile
a. Haddock – US 1906 – the SC held that ex parte divorces will be given full faith and credit
only if the divorce was granted in the state of marital domicile, even if the P is an actual
domiciliary of the jurisdiction where the divorce was granted. – NO LONGER LAW
b. Williams – overturned Haddock – and held that if the P is an actual domiciliary of the
state that grants the divorce, then full faith and credit applies to the ex parte divorce.
c. Williams II – This case refined the Williams I holding concerning the validity of ex parte
divorce by holding that the determination of whether the petitioner is an actual
domiciliary by the divorce court could be reexamined by the marital domicile court. The
determination of domicile by the divorce court is presumed to be valid until attacked.
The attacking party has the burn of showing that the P was not, in fact, an actual
domiciliary of the jurisdiction where the divorce was granted.
3. Local statutes – the first jurisdictional requirement in any divorce case is imposed by the
statutes of the forum.
a. Residence as used in these statutes generally means domicile, which is usually defined
as being the place where the P is physically present with the intention of making it his
home.
b. 2 PARTS TO DOMICILE
i. PHYSICAL PRESENCE
ii. INTENT TO REMAIN
c. RESIDENCY IS DETERMINED UPON FILING
d. If the P has been a resident for the proscribed period, the court has jurisdiction to grant a
divorce
4. Federal jdx
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a. It is settled that the federal courts sitting the various states have no jurisdiction to grant
divorces or award alimony.
5. Full faith and credit
a. Full faith and credit must be given to divorce decrees when, but only when, one of the
parties to the action, usually the P but conceivably the D was domiciled in the state
where the decree was granted
6. Due process of Law
a. Due process here means that service must be reasonably calculated to give the
nonresident defendant actual notice and an opportunity to be heard, although it must be
recognized that very often no actual notice is received by the D
ii. Estoppel against jurisdictional attack on decrees of divorce
1. Sherrer v. Sherrer –
a. The wife, domiciled with her husband in Massachusetts, went to Florida and sued for
Divorce. The husband appeared personally in the action, but a divorce was granted. The
SC held that the husband could not attack the validity of the Florida decree in a suit
brought in Mass.
b. It stated the rule to be that the requirements of full faith and credit bar a D from
collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister
state where there has been participating by the defendant in the divorce proceedings,
where the defendant has been accorded full opportunity to contest the jurisdictional
issues, and where the decree is not susceptible to such collateral attack in the courts of
the state which rendered the decree.
c. US SC held that the requirements of full faith and credit bar the respondent from
collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister
state when three factors are present
i. Where there has been participating of the respondent in the divorce proceedings
ii. The respondent was accorded full opportunity to contest the jurisdictional grounds
iii. The decree is not subject to collateral attack in the courts of the state which
rendered the decree
2. Distinguish between full faith and credit and estoppel
a. Full faith and credit is an application of res judicata, whereas estoppel is not a function of
the decree but a personal disability on the party attacking the decree
b. There are three principles of estoppel that are applied to cases challenging the
recognition of out of state divorces
i. They attack on the divorce is inconsistent with the prior conduct of the attacking
party
ii. The party upholding the divorce has relied upon it, forming expectations that the
divorce was valid or
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iii. These expectations will be upset by setting aside the divorce

iii. Lillis v. Lillis


1. If the divorce court only has in rem jurisdiction, they divorce court can only ALTER
THAT STATUS OF THE PARTIES AND DIVIDE ANY PROPERTY WITHIN THE STATE’S
BORDERS.
2. The family residence was in KC Mo. The wife commenced a divorce action in MO under a MO
statute, which provides for the dissolution of marriage if irretrievably broken. The wife moved
to and established residence in JO. Her petition alleged incompatibility. Service of process was
made on the husband in MO. He denied the parties were incompatible.
3. Court:
a. Absent personal jurisdiction, service upon the H conferred upon the court the jurisdiction
limited to the power to render judgment affecting the status of the parties within the
courts jurisdiction
b. The court was without jurisdiction to afford any relief beyond the granting of a decree of
divorce.
c. Jurisdiction to grant to and withhold from a non-custodial parent visitation rights as to his
or her minor children is bottomed upon jurisdiction to provide for custody, support and
education under 60-1610(a)
d. The court did not have jurisdiction to provide for the custody, support and education of
the minor children for the reason that they were neither physically present in JO nor
domiciled in KS.
e. We afford the MO judgment full faith and credit for the purpose of applying the doctrine
of res judicata and we will assume for the sake of argument that there is no distinction
between an irretrievably broken marriage under the MO statute and incompatibility
under our statute
4. Residency is determined upon filing
5. In Rem
a. The res is the marital status
b. Property in the state
6. KSA 60-307 and 308
a. 307 – Laundry list for in rem – how you can do it
i.
Family Law Outline – Spring 2009 (34 of 77)
(a) When permissible. Service may be made by publication in any of the following cases:

(1) In actions to obtain a divorce, maintenance or an annulment of the contract of marriage if the
defendant resides out of the state or if the party with due diligence is unable to make service of
summons upon the defendant within the state.

b. 308 is the different was to establish personal jurisdiction


i. (b) Submitting to jurisdiction. (1) Any person, whether or not a citizen or resident of this state, who in
person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby
submits the person and, if an individual, the individual's personal representative, to the jurisdiction of
the courts of this state as to any cause of action arising from the doing of any of these acts:
(H) living in the marital relationship within the state notwithstanding subsequent departure from the
state, as to all obligations arising for maintenance, child support or property settlement under article 16
of this chapter, if the other party to the marital relationship continues to reside in the state;

iv. Marriage of Salas


1. Robert filed a petition for divorce from his wife Yon, who never resided in Kansas. Yon’s
attorney in the state of WA wrote a letter to Robert’s attorney and the court, advising that Yon
denied Robert’s petition and that KS lacked jurisdiction. The case was dismissed. Amended
Petition was then filed. Yon did not respond at all. Yon, then filed in WA.
2. Court:
a. Personal jurisdiction is defined as the court’s power over the D’s person and is required
before the court can enter an in personam judgment. Federal due process requires a
nonresident D to have purposely established minimum contacts.
b. If the constitutional standard is met, our statutes set out methods for acquiring personal
jurisdiction through voluntary appearance or the issuance and service of process.
c. Yon lacked minimum contacts the constitution requires – she never lived in Kansas
d. The only jurisdiction acquired by the Kansas court was in rem. Such jurisdiction
permitted the court to decide the status of the parties and divide the property in Kansas.
e. A lack of personal jurisdiction over a nonresident defendant does not prevent court from
entering judgment in divorce that divides property within its territory.
f. Other orders, such has property outside of Kansas, child support or maintenance were
outside of the court’s power.
g. Retirement property – it wasn’t in his possession at the time; he hadn’t retired; wasn’t
vested, Didn’t have a right to it at the time of divorce.
v. Swarts v. Dean
1. Sara and John married in Kansas. A boy was born to them in Kansas. They moved to TX.
Obtained a divorce in Texas. Swarts filed in KS a motion to modify the support order. Dean was
personally served with summons while visiting the children in Kansas.
2. Court:
Family Law Outline – Spring 2009 (35 of 77)
a. Have certain minimum contacts with it such that the maintenances of the sue do not
offend traditional notions of fair play and substantial justice
b. Personal service within the forum state remains sufficient to confer jurisdiction
c. It is black letter law that personal service within its geographical area establishes a
court’s personal jurisdiction over a defendant.
d. The minimum contacts test is in applicable to cases in which the D is personally served
within the form state
e. Personal service upon dean while he was physically present within the state of Kansas
was sufficient to confer personal jdx over him and that the trial court erred in dismissing
the motion to modify
vi. Personal Jurisdiction in Divorce Cases under Kansas Long arm statute
1. 60-308(b)(H) – way to establish personal jurisdiction
a. live in marital relationship in the state
b. notwithstanding subsequent departure
c. if other party to the marital relationship continues to reside in the state
2. Perry v. Perry
a. They visited Kansas a couple of times – not sufficient
b. The court interpreted the long arm statute lived in a marital relationship to require the
parties to establish their marital domicile in Kansas.
e. Divorce Procedure
i. 60-1603 – Residence

(a) State. The petitioner or respondent in an action for divorce must have been an actual resident of
the state for 60 days immediately preceding the filing of the petition.

(b) Military residence. Any person who has been a resident of or stationed at a United States post or
military reservation within the state for 60 days immediately preceding the filing of the petition may
file an action for divorce in any county adjacent to the post or reservation.

(c) Residence of spouse. For the purposes of this article, a spouse may have a residence in this state
separate and apart from the residence of the other spouse.

ii. 60-1604 – All things included in petition


1. verified – shall be verified by P
2. bill of particulars
a. the grounds for divorce, annulment or separate maintenance shall be alleged as nearly
as possible
b. if there are minor children, shall state their names and dates of birth
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c. be accompanied by an affidavit (UCCJEA)
iii. If there are children – 60-1610(a)(1) and (2)
1. UCCJEA provisions Ks St. 38-1356
iv. Answer, counter petition 60-1605
1. The Respondent may answer and may also file a counterclaim for divorce, annulment or
separate maintenance. If a new matter is set up in the answer, it shall be verified by the
respondent in person or by the guardian of an incapacitated person. If counterclaim is filed, it
shall be subject to the provisions of subsections (a)(B) and (C) of 60-1604. When there are
minor children, the answer shall contain or be accompanied by an affidavit which contains, the
information required by 38-1356 and amendments thereto.
v. Interlocutory orders 60-1607
1. (a) Permissible orders. After a petition for divorce, annulment or separate maintenance has been filed, and during the
pendency of the action prior to final judgment the judge assigned to hear the action may, without requiring bond, make
and enforce by attachment, orders which:

(1) Jointly restrain the parties with regard to disposition of the property of the parties and provide for the use,
occupancy, management and control of that property;

(2) restrain the parties from molesting or interfering with the privacy or rights of each other;

(3) provide for the legal custody and residency of and parenting time with the minor children and the support, if
necessary, of either party and of the minor children during the pendency of the action;

(4) require mediation between the parties on issues, including, but not limited to, child custody, residency, division of
property, parenting time and development of a parenting plan;

(5) make provisions, if necessary, for the expenses of the suit, including reasonable attorney's fees, that will insure to
either party efficient preparation for the trial of the case; or

(6) require an investigation by court service officers into any issue arising in the action.

(b) Ex parte orders. Orders authorized by subsections (a)(1), (2), (3) and (4) may be entered after ex parte hearing upon
compliance with rules of the supreme court, except that no ex parte order shall have the effect of changing the
residency of a minor child from the parent who has had the sole de facto residency of the child to the other parent
unless there is sworn testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued
ex parte , the court shall hear a motion to vacate or modify the order within 15 days of the date on which a party
requests a hearing whether to vacate or modify the order. In the absence, disability, or disqualification of the judge
assigned to hear the action, any other judge of the district court may make any order authorized by this section,
including vacation or modification or any order issued by the judge assigned to hear the action.

(c) Support orders. (1) An order of support obtained pursuant to this section may be enforced by an order of
garnishment as provided in this section.

(2) No order of garnishment shall be issued under this section unless: (A) Ten or more days have elapsed since the
order of support was served upon the party required to pay the support, and (B) the order of support contained a notice
Family Law Outline – Spring 2009 (37 of 77)
that the order of support may be enforced by garnishment and that the party has a right to request an opportunity for a
hearing to contest the issuance of an order of garnishment, if the hearing is requested by motion filed within five days
after service of the order of support upon the party. If a hearing is requested, the court shall hold the hearing within five
days after the motion requesting the hearing is filed with the court or at a later date agreed to by the parties.

(3) No bond shall be required for the issuance of an order of garnishment pursuant to this section. Except as provided in
this section, garnishments authorized by this section shall be subject to the procedures and limitations applicable to
other orders of garnishment authorized by law.

(4) A party desiring to have the order of garnishment issued shall file an affidavit with the clerk of the district court
stating that:

(A) The order of support contained the notice required by this subsection;

(B) ten or more days have elapsed since the order of support was served upon the party required to pay the support;
and

(C) either no hearing was requested on the issuance of an order of garnishment within the five days after service of the
order of support upon the party required to pay the same or a hearing was requested and held and the court did not
prohibit the issuance of an order of garnishment.

(d) If an interlocutory order for legal custody, residency, or parenting time is sought, the party seeking such order shall
file a proposed temporary parenting plan as provided by K.S.A. 60-1623, and amendments thereto, at the time such
order is sought. If any motion is filed to modify any such interlocutory orders, or in opposition to a request for issuance
of interlocutory orders, that party shall attach to such motion or opposition a proposed alternative parenting plan

vi. Marriage counseling 60-1608


1. (c) Marriage counseling. After the filing of the answer or other responsive pleading by the respondent, the court, on its
own motion or upon motion of either of the parties, may require both parties to the action to seek marriage counseling
if marriage counseling services are available within the judicial district of venue of the action. Neither party shall be
required to submit to marriage counseling provided by any religious organization of any particular denomination.
vii. Evidence for granting the divorce 60-1609
1. (a) Admissions. Upon the trial of the action, the court may admit proof of the admissions of the parties to be received in
evidence, excluding such as shall appear to have been obtained by connivance, fraud, coercion, or other improper
means.

(b) Marriage. Testimony admissible to prove a common-law marriage may be received as evidence of the marriage of
the parties.

(c) Husband and wife as witness. Either party to the action shall be competent to testify upon all material matters
involved in the controversy.

(d) Corroborating testimony. A decree of divorce, separate maintenance or annulment may be granted upon the
uncorroborated testimony of either party or both of them.

viii. 60-1610
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1. SEE STATUTE BOOK pg 167
ix. 60-301
1. Upon the filing of the petition the clerk shall forthwith issue a summons for service upon each defendant in accordance
with K.S.A. 60-303, and amendments thereto. Upon the written request of the plaintiff separate or additional
summonses shall issue for any defendant.
x. 60-302
1. The summons shall be signed by the clerk, dated the day it is issued, be under the seal of the court and shall be
deemed sufficient if in substantial compliance with the form set forth by the judicial council.
xi. 60-304 – Service of Process; On whom Made
xii. 60-311

All process issued for service from any court within the state may be served anywhere within the territorial limits of the state
and, when authorized by law, may be served outside this state.
xiii. 60-312 – Proof Of Service
xiv. 60-313 – Amendment of Return
xv. 60-2301 – Wage Garnishment

xvi. Ks. R. Dist. Ct. Rule 164 requires a DRA


xvii. What statutes can be used to protect against domestic violence?
1. 60-1607
a. permissible orders (a)
i. regard to property
ii. privacy rights
iii. custody
iv. mediation
v. expense
vi. investigation by a court services offer
b. Can get ex parte by 1, 2 3 and 4. Ex parte cant’ change residence of children unless
abuse
c.
2. 60-3101
xviii. Venue – 60-607
1. venue can be residence of petitioner, respondent or where respondent is tagged
2.
(a) An action for divorce, annulment of marriage or separate maintenance may be brought in:

(1) The county in which the petitioner is an actual resident at the time of filing the petition;

(2) the county where the respondent resides or where service may be obtained; or
Family Law Outline – Spring 2009 (39 of 77)
(3) if the petitioner is a resident of or stationed at a United States post or military reservation within the state at the
time of filing the petition, any county adjacent to the post or reservation.

(b) For the purposes of this section, a spouse may have a residence separate and apart from the residence of the other
spouse.

f. Divorce Counseling
i. Marriage counseling and divorce counseling – 60-1608 and 60-1617
1. 60-1608 - (c) Marriage counseling. After the filing of the answer or other responsive pleading by the respondent, the
court, on its own motion or upon motion of either of the parties, may require both parties to the action to seek marriage
counseling if marriage counseling services are available within the judicial district of venue of the action. Neither party
shall be required to submit to marriage counseling provided by any religious organization of any particular
denomination.
2. 60-1617
a. (a) Family counseling. At any time prior or subsequent to the alteration of the parties' marital status the court
may order that any party or parties and any of their children be interviewed by a psychiatrist, licensed
psychologist or other trained professional in family counseling, approved by the court, for the purpose of
determining whether it is in the best interests of any of the parties' children that the parties and any of their
children have counseling regarding matters of legal custody, residency, visitation or parenting time
ii. Know and refer clients to good therapists.
iii. See Kansas Protection from Abuse Act KSA 60-3101
g. Domestic Violence in the Divorce Context
i. Most dangerous time is at separation – Most occur during separation
III. Child Custody
a. Jurisdiction
i. Homes state is the first preference – REMEMBER – jurisdiction for custody does not follow standard
jurisdictional rules
ii. UCCJEA – KSA 38-1336 – BE SURE TO STUDY THESE STATUTES – ON SYLLABUS 5!!!
iii. Thompson v. Thompson
1. Whether the parental kidnapping prevention act furnishes an implied cause of action in federal
court to determine which of two conflicting state custody decisions is valid?
2. the legislative history of the PKPA provides unusually clear indicating that C did not intend the
federal courts to play the enforcement role that P urges
3. PKPA addendum to the full faith and credit statute
4.
iv. In Re Baby Girl Clausen
1. Competing claims of natural parents and the third party custodian with whom the child now
lives.
2. important distinctions between the foster parent and foster child have their origins in an
arrangement in which the state has been a partner from the outset.
Family Law Outline – Spring 2009 (40 of 77)
3. The PKPA expressly provides that if a custody determination is made consistently with its
provisions, the appropriate authorities of every state shall enforce it according to its terms and
shall not modify.
4. It is consistent if: court making the determination has jdx under its own laws and the state
was the home state of the child when the proceedings were commenced.
v. Stone v. Stone
1. This is a custody matter involving the state of CT, the state of NH, a parent who is a resident
of the state of CT, a parent who is a resident of NH and two minor children who reside with
their mother in the state of NH. Which state is the more appropriate and convenient forum?
2. Under the UCCJEA, the court may decline jdx over an action to determine custody.
3. UCCJEA: In determining whether a court of this state in an inconvenient forum, court shall allow
the parties to submit information and shall consider the following factors:
a. Whether family violence has occurred and is likely to continue in the future and which
state could best protect the parties and the child
b. The length of time the child has resided outside of the state
c. The distance between the court in this state and the court in the state that would
assume jurisdiction
d. The relative financial circumstances of the parties
e. Any agreement of the parties as to which state should assume jurisdiction
f. The nature and location of the evidence required to resolve the pending litigation
g. The ability of the court of each state to decide the issue expeditiously and the
procedures necessary to present the evidence
h. The familiarity of the court of each state with the facts and issues in the pending
litigation.
4. Court:
a. Children and those individuals with whom the children have been interacting over the
past 18 months, such as their pediatrician, teachers and other school authorities, and
members of their extended family with whom they have been residing during that period
of time, are all located in NH.
b. It is where the most significant evidence concerning the fitness and ability of the D and
the best interests of the children will be found.
c. NH court is more familiar with and involved in the custody issues.
vi. Anselmo v. Anselmo
1. Suit was commenced in CT. Husband filed an action in Texas. He seeks genetic testing of the
pregnant wife.
2. Court: That there is a reasonable probability that the D will suffer irreparable harm to herself
and her unborn child if she is compelled to defend multiple actions in two separate states.
3. She will suffer severe economic loss.
Family Law Outline – Spring 2009 (41 of 77)
vii. Sampson v. Sampson
1. This is an action filed by P under the Hague Convention.
2. Initially, it must be shown that the child was removed from its habitual residence under the
convention
a. Determined the child’s habitual residence – it is not a technical term like domicile; it
should be understood as being the child’s ordinary residence at the relevant time
3. Next, wrongfully removed
a. At the time of the removal or retention those rights were actually exercised, either jointly
or alone, or would have been so exercised but for the removal or retention
b. The evidence must show that he or she was exercising lawful custody rights over the
child at the time of removal.
c. The r wrongfully removed the child from Israel and that R must return the child to Israel
4. What is wrongful removal?
a. Breach of rights of custody/rights were actually exercised
b. Mother focuses on an exercising rights argument
b. Parent v. Parent
i. Child Custody: Introduction
1. since each custody case differs in its facts from all others and since the particular facts of each
case are crucial, custody cases have less importance as precedents than do decisions In other
branches of law
2. custody refers to the relationship which exists between parents and child in a normal, going
family
3. KSA 60-1610(A)(2) (2) Child custody and residency. (A) Changes in custody. Subject to the provisions of the
uniform child custody jurisdiction and enforcement act (K.S.A. 38-1336 through 38-1377, and amendments
thereto), the court may change or modify any prior order of custody, residency, visitation and parenting time, when a
material change of circumstances is shown, but no ex parte order shall have the effect of changing residency of a minor
child from the parent who has had the sole de facto residency of the child to the other parent unless there is sworn
testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued ex parte, the court
shall hear a motion to vacate or modify the order within 15 days of the date that a party requests a hearing whether to
vacate or modify the order.

4. KSA 60-1614
ii. Parent v. Parent
1. Custody = residential parent = parenting time
2. Factors in awarding custody – dispute between natural parents
a. The common element – child’s best interest
b. The child’s wishes are said to be entitled to weight in placing him in the custody of one
parent or the other, if he is old enough to form a mature judgment. Less weight if 11ish,
more weight if 16ish.
Family Law Outline – Spring 2009 (42 of 77)
3. History:
a. At common law the father had a right to the custody of his child which was nearly
absolute
b. Today, both spouses are given equal right to the custody of the children
c. This means that upon a separation or divorce neither has a claim superior to the other
4. Other factors
a. Strength and sincerity of the desire for the child custody; the ability of the claimant to
care for the child as revealed by past performance; the remarriage and the new spouse’s
willingness to accept the child; they physical conditions which the child is to love; and
the mental health of the parties
b. The US constitution and the state constitutions all forbid the state from assisting or
interfering with religious establishments
5. Indeterminacy of best interests of the child
a. Case precedent is not helpful – always different facts
b. Custody determinations are modifiable until age of majority of child
c. Abuse of discretion standards
d. Use of behavioral science experts.
6. distinguish between appeals from an original custody order and a motion to modify
a. original custody order – BIC
i. both parties come in on equal footing
b. motion to modify – material change in circumstances since the prior custody
order – the burden is on the party seeking to change the custody arrangement
i. where do we look at change – look at parent having custody
ii. key factor – consistency
7. KSA 60-1610(a)(3)
8. 60-1610(a)(2)
9. 60-1610(a)(3)(4)
a. parenting plan is presumed to be in best interest of child
b. court has to follow, but presumption can be overcome
c. they aren’t binding, court not going to enforce if not in the best interest of the child,
have to make specific findings
iii. Modification of Decrees
1. May be made on the motion of a party or on the court’s own motion
2. Adequate notice and opportunity to be heard are constitutional requirements
3. Some courts allow a modification only if a change in circumstances
4. Some courts have a broader view that arrangements can be modified if the child’s welfare
requires it
Family Law Outline – Spring 2009 (43 of 77)
5. Changed circumstances can include changes in the moral and mental fitness of a party;
changes in the physical environment; wishes of the child; religious factors and the ability of the
guardian to manage the child ; remarriage of one of the parties.
iv. Wilkinson v. Wilkinson
1. we understand the law to be, when the custody of children is the question, that the best
interests of the children is the paramount fact. Rights of father and mother sink into
insignificance before that.
2. George has remarried since the time of the divorce. He is insolvent and is dependent upon his
second wife for support. The wife has remarried against and lives in UT, the child lives with
her; that she attends the public school in that city. Child testified she did not want to leave her
mother
3. The transfer of the child from her home with her mother to her father would be unwarranted.
v. Jackson v. Jackson
1. Lee filed a DV against Vera. V was awarded custody of the minor children. P filed a motion to
change the custody.
2. Appellant contends that the real, underlying reasons for depriving her of custody was her
membership in Jehovah’s witnesses and training the children in that faith
3. court
a. The evidence in the trial was replete with testimony and exhibits as to the tenents of
Jehovah’s witnesses and the possible effect of such believes upon the children.
b. The courts have no authority on the part of a child’s training which consists in religious
discipline and in a dispute relating to custody, religious views afford no ground for
depriving a parent of custody who is otherwise qualified.
vi. Palmore v. Sidoti
1. We granted cert to review a judgment of a state court divesting a natural mother of the
custody of her infant because of her remarriage to a person of a different race. The trial court
concluded that the best interest of the child would be served by awarding custody to her
father.
2. Court:
a. Such classifications are subject to the most exacting scrutiny; to pass constitutional
muster, they must be justified by compelling governmental interest and must be
necessary to the accomplishment of their legitimate purpose
b. The goal of granting custody based on the best interest of the child is indisputably a
substantial governmental interest
c. Private biases and the possible injury they might inflict are not permissible
considerations for removal of an infant child from the custody of its natural mother.
Family Law Outline – Spring 2009 (44 of 77)
d. The effects of racial prejudice, however real, cannot justify a racial classification
removing an infant child from the custody of its natural mother found to be an
appropriate person to have such custody.
vii. Tender Years/Maternal Preference Doctrine
1. Different versions of the doctrine
a. Unless unfit, children of tender years to mother
b. All things being equal, children of tender years to the mother
c. All things being equal, children of tender years to the mother, children of vocational and
education years to the father
d. Children of tender years to the mother, older children to the same gender parent as the
child
2. St. Clair
a. It is an elementary rule in this state that if children are of tender age they must almost of
necessity be entrusted to their mother’s care, without weighing unduly what may be
some possible shortcomings in her character or conduct.

viii. Dalton v. Dalton


1. The Daltons were divorced. Mrs. D was granted custody of the two younger boys. Mr. D wants
custody of the two younger boys. Mrs. D had a relationship with the 15 year old neighbor. The
two younger boys often played in the street unsupervised and unknown to B, and that they
roamed the neighborhood without their mother knowing their whereabouts.
2. Court:
a. We are asked to say the trial court abused its discretion.
b. What best serves the interest and welfare of the child? All other questions are
subordinate to that?
c. Almost, but not quite of necessity is custody of small children to be placed with the
mother.
d. The trial court abused its discretion in awarding Mrs. D the custody of the boys.
ix. Patton v. Patton
1. Father, Ronald, filed this motion to change custody, alleging that the change would be in the
best interest of the children. Carol drank, took pills and threatened suicide and had sexual
relations with three or possibly four different men in eight months since the DV.
2. Court:
a. In order to change custody it would be required to find some material change in
circumstances since the divorce.
b. The word almost in the St. Clair case was not to be overlooked. The real touchstone is
what best serves the interests and welfare of the children.
Family Law Outline – Spring 2009 (45 of 77)
c. Where the evidence on that issue is in the balance, tender age of the children will
normally tip the scales in favor of the mother, simply because in most cases, she is more
available in the home.
x. Grubbs v. Grubbs
1. Issue on appeal is whether the trial court improperly applied the tender years doctrine in
awarding custody of the parties two year old son to the mother.
2. Court:
a. The tender years doctrine is not on equal status with the best interest test; rather, in
deciding what is in the best interest of the children, one factor to consider and to give
weight is the tender age of the children and the necessity for maternal love but it is not
an absolute rule that tender age children should always go to their mothers.
b. We cannot read our statute as doing anything more than establishing the best interest
test therefore recognized by our SC
c. No one has a vested interest, because always subject to modification
d.
xi. Hill v. Hill
1. Grover filed a motion to change custody four months after the DV was granted. Weeks after
she arrived in NM, she moved in with another man, and she had been living with him ever
since. The evidence indicates that most of the parties relatives live in Kansas; that both parties
love Brian, that both desire his custody, and that both give him good physical care.
2. Trial court gave custody to the father
3. Court
a. Does the doctrine of res judicata give way to the BIC?
b. The unknown facts rule: where a custody decree is entered upon default, the court has
had no opportunity to observe the two contending parents upon the witness stand or to
examine the evidence concerning their fitness and concerning the welfare of the child. It
must accept the allegations of the P or at best, the uncrossed examined testimony of the
P.
c. If there are facts existing but not disclosed to the court at the time of its original order,
the court, in its discretion should be free to review evidence on those facts and to
consider the evidence in its review of the custody order.
d. Where facts, affecting the welfare, existing at the time of the DV or order awarding
custody are not called to the attention of the court, and particularly in default cases
where the issues affecting custody have not been fully tried, the court upon proper
application may consider all the facts and circumstances, including those existing prior
to and at the time of the judgment or decree.
e. We hold that, where a custody decree is entered in a default proceeding and the facts
are not substantially developed and presented to the court, the trial court may later, in
Family Law Outline – Spring 2009 (46 of 77)
its discretion admit and consider evidence as to facts existing at the time of the earlier
order, and upon the full presentation of the facts the court may enter any order which
would have been made at the initial ___ whether a change in circumstances has occurred
or not.
f. Not going to apply RJ in default or by agreement – Can decide not to attach RJ
(in discretion of trial court )
g. RJ prevents the trial court from considering evidence that existed at the time of the
original order. There must be a material change in circumstances before custody can be
changed. Because all the factors of each parent’s residence are the same as at the time
of the divorce, the court committed error in admitting the evidence and changing
custody.
h. 60-1628
i. if not prima facie, shall deny
ii. give court ability not to have to take on every motion to modify
iii. if you want to take evidence prior to final order, use Hill case – says it is in trial
court’s discretion to take evidence
xii. Note:
1. If marital misconduct occurs after the filing for a petition for divorce, this evidence cannot be
used to prove the grounds for divorce because the grounds must be present at the time of the
filing of the P
2. However, if misconduct concerning the children occurs after the filing of the divorce, this
evidence may be introduced as a relevant factor in determining the best interests of the
children.

xiii. Carlson v. Carlson


1. P and D, parents of four minor children, were divorced in June 1976. They have since been
engaged in almost constant litigation relative to the child custody and visitation rights. P has
now been required to move from AZ to Kansas. She contends before this court that the
restriction contained in the order violates her constitutional right to travel.
2. Court:
a. We also recognize a legitimate state interest in restricting the residence of the custodial
parent.
b. Her right to travel or even to establish residence elsewhere is limited only by her desire
to retain her status as the custodial parent.
c. Such a person may be required to forego or forfeit some rights to custody or visitation as
the case may be, consistent with the best interests and welfare of the children and the
rights of the other parent.
Family Law Outline – Spring 2009 (47 of 77)
xiv. Carney v. Carney
1. The Parties had signed a custody agreement in which the mother, who had custody agreed to
seek court approval if she wanted to remove the children from the state for more than 30
days.
2. The appeals court said that the mother knowingly and intelligently entered into a separation
agreement with the full knowledge of the meaning of the travel provision.

xv. Relocation and Visitation


1. Traditional Family law doctrine encouraged the belief that the best interest of the child was
promoted by regular contact with both parents when the parents do not live together.
2. Single Family Model: this new family model makes it more likely that courts will not interfere
with a relocation decisions, and it will reduce the opportunity for contested litigation when a
custodial parent decides to move.
3. Two Family
a. Maximize the child’s contact with both families by emphasizing the non-custodial
parent’s right to have contact with the child. Usually results in restrictions on the
custodial parent.
b. Assumes it is in the best interest of the child to stay where he or she is living so that he
or she can have continuing contact with nonresidential parent.
4. Neutral model: establish a general standard
a. has a general standard such as BIC, real advantage tests, requiring extensive fact finding
b. doesn’t use presumptions about the relocation
c. Drawbacks
i. Very time consuming
ii. Fact intensive
iii. Require custodial parent to justify the move by placing an evidentiary burden on
this parent, move is legitimate, in child’s best interests or change in
circumstances, triggering a change in the initial custody determination .
iv.
5. Traditional model – keeping with both parents –
6. New family – consistency should be looked at in family living with
Family Law Outline – Spring 2009 (48 of 77)
a. Placing greater emphasis on allowing the custodial parent maximum flexibility to make
life choices, even if relocation means diminishing the time the child spend with the non-
custodial parent. Usually results in allowing relocation
b. Puts emphasis on the stability of the child’s relationship with the custodial parent and
recognizes generally what is best for the primary parent will be best for the child.
7. KS – change in residence is the two family model
8. One family gives deference to consistency of new family
9. KS – a change in residence may be considered material change of circumstances. It is a factor.
60-1620
a. (c) A change of the residence or the removal of a child as described in subsection (a) may be considered a
material change of circumstances which justifies modification of a prior order of legal custody, residency, child
support or parenting time. In determining any motion seeking a modification of a prior order based on change of
residence or removal as described in (a), the court shall consider all factors the court deems appropriate
including, but not limited to: (1) The effect of the move on the best interests of the child; (2) the effect of the
move on any party having rights granted pursuant to K.S.A. 60-1610, and amendments thereto; and (3) the
increased cost the move will impose on any party seeking to exercise rights granted under K.S.A. 60-1610,
and amendments thereto.
10. KS statute seems to be a notice statute, punishment for failure to notify – can be
considered
11.
xvi. Hollandsworth v. Knyzewski - Arkansas case
1. Mom appeals an order changing primary custody and awarding the same to the father. Denied
her request to relocate out of state with the children while she was primary custodial parent.
Appellant married Mr. H, who was in the army.
2. We hold that a relocation of a primary custodian and his or her children alone is not a material
change of circumstance. We announce a presumption in favor of relocation for custodial
parents with primary custody. The non-custodial parent should have the burden to rebut the
relocation presumption. The custodial parent no longer has the responsibility to prove a real
advantage to herself or himself and to the children in relocating.
a. The child’s best interest are served by preserving the custodial relationship, by avoiding
re-litigating of custody decisions and by recognizing the close link between the best
interests of the custodial parent and the best interest of the child
b. We pronounce a presumption in favor of relocation for custodial parents with a primary
custody
c. Court should consider the following matters:
i. The reasons for the relocation
ii. The educational, health and leisure opportunities available in the location which
the custodial parent and children will relocate
iii. Visitation and communication schedule for the non-custodial parent
Family Law Outline – Spring 2009 (49 of 77)
iv. The effect of the move on the extended family relationships in the location in
which the custodial parent and children will relocate
v. Preference of the child, including the age, maturity and the reasons given by the
child as to his or her preference.
3. Holding in this case:
a. Relocation alone is not a material change in circumstances
b. Presumption in favor of relocation of primary residential parent
c. Burden to rebut the presumption is on the non-residential parent
d. Courts should take into consideration when determining the BIC
i. Reason for location
ii. Educational, health, and leisure opportunities available in relocation area
iii. Visitation and communication schedule for non-custodial parent
iv. The effect of the move on the extended family relationships in both locations
v. Preference of the child, including the age, maturity and the reasons given by the
child for his or her preferences.
4. Motion to Modify Residency, Parenting Plan, Custody
a. KS 60-1620(a)(2)(A) and Ks. St. 60-1628
b. Relocation Statute – KSA 60-1620
xvii. Yoder v. Yoder
1. Daughter got pregnant and wanted to get married. They got the dad’s consent, even though
the mother only had sole custody.
2. Trial court found that the father had been abandoned his family and had thus forfeited his right
to make decisions affecting his children.
3. The court of appeals reversed on two grounds
a. The court found that the statute allowed either the father or the mother to consent to a
marriage and it did not distinguish between custodial and non-custodial parents
b. The court held that a court granting the mother sole custody of the child did not divest
the father of all his rights to his child
c. Only a finding of unfitness can alter these parental rights
xviii. Marriage of Gordon Hanks
1. A post divorce child custody proceeding that modified residential care and custody of parties
children from mother to father based on the recommendation of a case manager even though
neither party moved for a modification
2. Court held that:
a. Trial court had jdx
b. Case manager did not exceed statutory authority
Family Law Outline – Spring 2009 (50 of 77)
c. The Kansas court of appeals upheld the authority of the trial court adopting a
recommendation of a case manager, modifying residential care of the children without
there being a motion to modify by either parent
c. Parent v. Non Parent
i. Parent v. non Parent
1. The state doest not interfere with their effort unless the child is so seriously in trouble as to be
within the statutes defining neglected or delinquent children.
2. between a parent and a non-parent, the parent has the right to the custody of his child unless
he is shown to be unfit to perform the duties custody imposes
3. KSA 60-1610(A)(4)(D)
a. Sole legal custody. The court may order the sole legal custody of a child with one of the parties when the court
finds that it is not in the best interests of the child that both of the parties have equal rights to make decisions
pertaining to the child. If the court does not order joint legal custody, the court shall include on the record
specific findings of fact upon which the order for sole legal custody is based. The award of sole legal custody to
one parent shall not deprive the other parent of access to information regarding the child unless the court shall
so order, stating the reasons for that determination
ii. Stout v. Stout
1. She was awarded custody. The mother had left them with her parents. He came back from the
army. He was married and wanted custody of the children.
2. Court:
a. We simply hold that a child custody proceeding instituted by a father to obtain custody
of the children awarded to their mother by an order made some eight years before,
where the mother concedes she does not desire or seek custody of her children, who
under the undisputed evidence have been in the actual custody of her parents from the
date she obtained the initial order and when all interested parties contend and
repeatedly assert the sole issue is whether the father or the maternal grandparents are
entitled to their custody, the district court abused its sound discretion.
b. a parent who is able to care for his children and desires to do so, and who has not been
found to be an unfit person to have their custody in an action or proceeding where that
question is in issue, is entitled to the custody of his children as against grandparents or
others who have no permanent or legal right to their custody
c. it is only when parents are unfit to have the custody, rearing and education of children
that the state sets in
d. since there was no evidence to justify us in finding the respondent was unfit, custody
goes to the father.
e. When the mother has placed the children with her parents and all parties
agree that the real parties in interest concerning the issue of custody are the
father and the maternal grandparents, the trial court did not err in denying
Family Law Outline – Spring 2009 (51 of 77)
the father’s request for custody when there was nothing introduced to show
the father was an improper person.
f. State the Kansas parental Preference Doctrine
i. Under our recent and often repeated decisions, to which we have strictly adhered
for many years, the established and inviolate rule has been and now is that a
parent who is able to care for his children and desires to do so, and who has not
been found to be an unfit person to have their custody, in an action or proceeding
where that question is in issue, is entitled to the custody of his children as against
grandparents or others who have no permanent or legal right to their custody,
even though at the time the natural parent seeks their custody such grandparents
or others are giving the children proper and suitable care and have acquired an
attachment for them.
ii. 3rd party has burden of showing unfit
iii. presumption that best interests of the child is with the parent
iii. Trompeter v. Trompeter
1. Denial of Tammy’s motion for change of custody of her daughter. Custody was given to Leo,
with the child to live with the Kitchens. She commenced action on the grounds that
circumstances have changed.
2. Court:
a. Trial Court: Custody to stay with the dad, and remain with Kitchens.
b. Mom says she should have custody because there has been no finding that she is unfit.
c. A parent who is able to care for his children and desires to do so, and who has not been
found to be an unfit person to have their custody in an action or proceeding where that
question is in issue, is entitled to custody as against grandparents or others who have no
permanent or legal right to custody.
d. Here, the mother has retained an interest in the supervision and control of Cynthia. The
appellee here has indicated that he is willing to have actual physical custody of Cynthia.
e. We are unable to say the trial court abused its discretion in making its custody order.
f. Cites definition for custody – Am. Jr. 2d
i. Embraces the sum of parental rights with respect to the rearing of the child,
including his care. It includes the right to the child’s services and earnings, and the
right to direct his activities and make decisions regarding his care, control,
education, health and religion.
g. This is a way to get around parental preference doctrine
i. Parent who had been given care is still exercising legal custody.
ii. Distinction is dad is spending time but with job he is going, so doing this through
grandparents
iii. i.e. deployed parent still exercising rights
Family Law Outline – Spring 2009 (52 of 77)
h. Note concerning Representation of Deployed Service Members
i. Set up a residential plan that clearly states that the child remains in the legal
custody of the deployed parent, who is retaining oversight of the third party who is
providing residential care during the parent’s deployment –
ii. The current state of the law is that judges are making individual determinations of
whether these cases fall within the parental preference doctrine and/or whether
deployment is a material change in circumstances
iv. Sheppard v. Sheppard
1. This statute permitted the court to award custody to a non-parent, without a finding of
unfitness.
2. Parents have a fundamental right, protected by the 14th Amendment, to the custody of their
children. The state can overcome this fundamental right only by showing unfitness.
3. we hold that a parent is not found to be unfit, the parent has a fundamental right to the care,
custody and control of his or her child, and that right cannot be take a away in favor of a third
party, absent a finding of unfitness on the part of the parent.
4. What is unfit – CINC statutes – standard in juvenile court KSA 38-2269
5. Struck down as a violation of due process, a KS statute that permitted the court to award
custody to a non-parent without a finding of unfitness if the custodial parent had voluntarily
placed the child in the third party’s care for more than six months and the order was in the
best interest of the child.
v. Guardianship of Williams
1. Kathleen Williams, the mother of Nolynn, from an order of the district court denying a petition
to terminate a voluntary guardianship established for Nolynn, the guardian Cindy Hawley,
opposed the petition to terminate. Kathleen had moved to Iowa to pursue a career. She moved
back to Wichita and wanted the guardianship terminated
2. Court:
a. It is clear under our decisions and those of the United States Supreme Court that a
natural parent’s right to the custody of his or her children is a fundamental right which
may not be disturbed by the state or by third persons, absent a showing that the natural
parent is unfit.
b. What we hold is this, that a parent who is not found to be unfit has a fundamental right,
protected by the DP clause of the US constitution, to the care, custody and control of his
or her child and that the right of such parent to custody of the child cannot be taken
away in favor of a third person.
c. Parental preference doctrine.
d. It is firmly established by repeated decisions of this court that a parent who is able to
care for a child and desires to do so, and who has not been found to be an unfit person
to have the custody of the child, in an action or proceeding where that question is an
Family Law Outline – Spring 2009 (53 of 77)
issue, is entitled to the custody as against grandparents or others, even though at the
time they are giving suitable care and have acquired an attachment to the child.
e. Best interest applies between two natural parents
f. As a general rule, parents as natural guardians have superior rights to the custody of
their child over non-parents unless the parents are unfit or extraordinary circumstances
exist.
g. We adhere to the rule that absent highly unusual or extraordinary circumstances the
parental preference doctrine is to be applied in a custody dispute over minor children
when the dispute is between a natural parent who has not been found unfit and a non-
parent.
h.
i. Parental preference trumping BIC.
j. Unfitness 38-2269
k. Ks. St. 60-1610(a)(4)(D)
vi. Painter v. Bannister
1. How Iowa applies parental preference
2. Father vs. maternal grandparents
3. There is a presumption of parental preference…However, as always, the primary consideration
is the best interests of the child and if the return of custody to the father is likely to have a
seriously disrupting and disturbing effect upon the child’s development, this fact must prevail.
4. KS says it is a rebuttable presumption, but can only be rebutted by unfitness of the parent
d. Visitation
i. Donaldson v. Donaldson
1. The appellee was granted a divorce, custody of the minor child of the parties and child
support. The order of the trial court which appellant says permanently restrains and enjoins
him from visitation of the minor child. Does the trial court have the power to completely deny
appellant’s rights of visitation?
2. Court:
a. The jdx of the court to change an order pertaining to the child or to make a new order is
beyond question and such jdx continues during the minority of the child
b. The broad authorization of the statute to make any order to advance the welfare of the
minor child certainly entails, with discretion, the authority to limit or deny visitation
privileges where the child’s welfare is concerned.
c. KSA 60-1610(a), (c), (d), (e) and (f)
d. Can’t permanently enjoin, always subject to modification
ii. 60-1616
1. DV, Sep. Maintenance, Annulment
2. entitled to reasonable parenting time unless after a hearing…seriously endanger
Family Law Outline – Spring 2009 (54 of 77)
iii. Troxel v. Granville
1. Revised code of WA permits any person to petition a superior court for visitation rights at any
time and authorizes the court to grant such visitation rights whenever visitation may serve the
best interest of the child.
2. Court:
a. Statute infringes on fundamental right – breathtakingly broad
b. The language effectively permits any third party seeking visitation to subject any
decision by a parent concerning visitation of the parent’s children to state court review.
c. Parents’ decision as to the best interest of the child is accorded no deference.
d. Liberty interest in parent without interference from the state to raise his/her child in the
way they deem best
e. Statute didn’t require a showing of unfitness
f. Unconstitutional as applied because:
i. There was no finding that the parent was unfit
ii. No deference was given to the parent’s decision as to her children’s best interests
iii. The dispute was not over the parent attempting to cut off visitation entirely, but a
dispute of how much visitation the grandparents would receive.
g. This case does not establish a bright line rule concerning third party visitation.
iv. State v. Paillet
1. The trial court ordered grandparent visitation. The court of appeals found there had not,
however, been a substantial relationship between the child and the grandparents, but it
applied the doctrine of equitable estoppel to the mother, finding that she could not object to
the grandparent visitation because her conduct had prevented the grandparents from forming
a substantial relationship with the grandchild.
2. KS SC reversed court of appeals:
a. The statute is ambiguous that grandparents have the burden of proving a substantial
relationship exist with the child under the statute’s language. In applying the Troxel
case, the KSCt. Held that the trial court failed to presume the mother is a fit parent and
that she is acting in the best interests of her child
b. Struck down 38-123 as applied.
e. Mediation
i. Arbitration and trial you have a third party decision maker and then there are parties
ii. Mediation the parties are the decision makers
iii. Mediator facilitates the communication
iv. Adversarial system is unsuited for families
v. Mediator can meet with anyone, as long as there are parties consent
vi. Mediator can’t rat out to the court who wouldn’t cooperate
vii. Confidentiality: can’t call mediator to the stand
Family Law Outline – Spring 2009 (55 of 77)
viii.Attorney can’t ask a party “what did you say in mediation”
ix. If an independent way to find it out, can use it.
x. An attorney can act as a mediator Rule 901
xi. Statutes:
1. 23-601: Mediation Defined
2. 23-602: Appointment and qualifications of mediator
3. 23-603: Duties of Mediator
4. 23-604: Termination of Mediation
5. 23-605: Confidentiality
6.
IV. Financial Aspects of Divorce
a. Child Support
i. Background
1. Common law duty
2. Statutory duty
a. 60-1610: Actions for divorce, sep maintenance, annulment
i. (a) The court shall make provisions for the support and education of the minor
children.
ii. Support continues until age 18, except in limited circumstances
1. parents agree for support to continued beyond majority
2. Child is still in high school
iii. Factors courts consider:
1. in determining the amount to be paid for child support, the court shall
consider all relevant factors, without regard to marital misconduct, including
the financial resources and needs of both parents, the financial resources
and needs of the child and physical and emotional condition of the child.
Until such a child reaches 18 years of age, the court may set apart any
portion of property of either the husband or wife, or both, that seems
necessary and proper for the support of the child.
2. Parents can have a written agreement to pay child support directly to the
oblige and not pay through the central unit for collection and disbursement
of support payments
b. 38-1121 Parenting action
c. 21-3605: Criminal nonsupport
d. 23-9401 – this is JURISDICTION
ii. State ex. rel. Hermesmann v. Seyer
1. H and S began a sexual relationship at the time when she was 16 and he was 12. Shane was
13 at the time of conception
Family Law Outline – Spring 2009 (56 of 77)
2. Court:
a. His youth is basic to the crime, but not a factor in the child support
i. KSA 38-1110 specifically contemplates minors as fathers and makes no exception
for minor parents regarding their duty to support and educate their child
ii. 38-1121(c) – upon adjudication that a party is the parent of a minor child, the court
shall make a provision for support and education of the child, including the
necessary medical expenses incident to the birth of the child
iii. The Kansas SC determined that the lack of consent, in the context of a criminal
statute, is not applicable to a civil action for child support. As to the last argument,
the court held that KS 39-718(b) explicitly requires a court to order joint and
several liability for the child support to the parents of the child and parent’s
misconduct and has no bearing on the other parent’s duty of support.
b. The interests of the child are superior to both the parents as a matter of public policy
i. Public policy mandating parental support of children override’s any policy of
protecting a minor from improvident acts
c. SRS correctly notes that the mother’s conduct has no bearing upon the parties
respective obligations to support the child
i. Nowhere does the law in this state suggest that the mother’s wrongdoing can
operate as a setoff to bar to a father’s liability for child support
3. He has a common law duty and a statutory duty to support
4. Holding: Seyer was not relieved of his obligation of child support because it is the state’s
interest to require minor parents to support their parents to support their children and this
interest overrides the states competing interest in protecting juveniles from improvident acts,
when such acts may include criminal activity on the part of the other parent.
5. 60-1610 – the court shall – mandatory provision
a. both parties have an obligation to support children.
b. Time frame is 18, but there are some exceptions
c. Go beyond 19 if parents agree
d. It can go beyond – BUT COURT CAN’T ORDER IT
6. Can modify – material change (if within 3 years of last order)
a. After 3 years, don’t need material change
iii. Thompson v. Thompson
1. The thrust of the father’s argument is that the children are now being cared for by their step
father.
2. Court:
a. Although the mother and others may be supporting the children, this does not diminish
or suspend the obligation of the father to support his children.
b. He also purchased horses and presents
Family Law Outline – Spring 2009 (57 of 77)
i. These are not necessities and do not fall in the category of normal support.
c. Any support coming from a non-parent has no impact on parents support – a child
supporting himself or herself doesn’t reduce support obligation
d. Almost never see an automatic reduction based on support from someone else
e. General rule is an excess in one month’s support does not rollover to the next month, it
is a gift
f. If not automatic, have to file a request
3. KSA 60-1610(a)(1): Modification of a court order for child support
a. The court may modify or change any prior order of child support, including any order
issued in a title IV-D case, within three years of the date of the original order or a
modification order, when a material change in circumstances is shown, irrespective of
the present domicile of the child or the parents. If more than three years has passed
since the date of the original order, modification order, a material change in
circumstances need not be shown. The court may make a modification of child support
retroactive to a date at least one month after the date that the motion to modify was
filed by the court. Any increase in support order effective prior to the date of the court’s
judgment is filed shall not become a lien on real property.
b. Various material changes in circumstances that justify a modification under the CS
guideline:
i. Three years since the last order
ii. An increase or decrease of 10% in the guideline amounts
iii. A child obtaining the ages of 7 or 16
iv. A child becomes emancipated
c. A court, in its discretion, may not require a showing of material change in
circumstances for a modification of child support if the previous order was not
based on evidence presented to the court at a hearing, but rather was the
result of a default judgment or an agreement between the parties.
iv. Marriage of Scott
1. David was ordered to pay child support. In 1995 Renee filed a motion to increase child support.
Granted an order for an automatic wage withholding of payment of David’s child support
obligation. They also imputed a higher income for her>
2. Court:
a. Disregarding child care costs:
i. Kansas Child Support Guidelines – actual, reasonable and necessary child care
costs incurred to permit employment or job search of a parent should be added to
the support obligation
ii. Both have to be met
Family Law Outline – Spring 2009 (58 of 77)
iii. The trial court did not abuse discretion in finding that outside child care costs was
unnecessary because the paternal grandmother was available to provide it.
b. Imputing Income:
i. Income may be imputed to the custodial parent in appropriate circumstances.
ii. The trial court’s ruling was based on reasonable interpretation of Renee’s job
history and future prospects
iii. If client says I will have my degree in 2 years, and they don’t do it, the
income will be imputed.
iv. It was not deliberate unemployment, but it didn’t matter, she had ability to make
money – an obligation to support at level they can support the children
c. Automatic Wage Withholding
i. The original trial court, pursuant to an agreement of the parties, entered an order
allowing David to pay child support to the court trustee with the provision that if he
failed to make payments, a withholding order would issue
v. Marriage of Schoby
1. The trial court declined to modify the child support obligations of David shortly after his minor
son, Michael, age 16 was married.
2. It is important to know if it is court ordered or by agreement
a. Agreement – contract law applies
3. Court:
a. First, the right of a child to support from his or her father cannot be taken
away or unfairly diminished by an agreement between the divorcing parents.
b. Child support is the right of the child and can only be reduced or terminated by court
order.
c. Support is not terminated by the marriage or parenthood of the minor child
d. Joining the military does not automatically terminate the father’s duty to pay support.
e. Quitting school and having a baby are factors to consider by the court on motion.
f. Marriage of a child is not a terminating event that automatically terminates
4. Notes:
a. Parents cannot contract away duty of support (trying to contract away a third party’s
rights – the child)
b. Marriage is not an automatic termination – would require a motion to modify and a court
making a determination
c. Is a material change of circumstances, but not automatic
d. Automatic termination:
i. Child reaching the age of majority
ii. Death of the child
iii. Death of the payor/obligor
Family Law Outline – Spring 2009 (59 of 77)
e. Factors that may be brought before a court for determination of whether these factors
qualify for a material change in circumstances
i. Emancipation of the child
ii. Enlisting in armed forces
iii. Minor child’s pregnancy and birth of a child
iv. Support provided by others who are not legally obligated to support the minor
child (stepparents)
v. Failure to comply with the terms of a positive or negative adjustment to the basic
parental child support obligation
vi. Gardner v. Gardner
1. Child support went unpaid for 14 years
2. Dormancy and Revivor statutes:
a. Child support payments become final judgments on the dates they become due and
unpaid
b. A judgment becomes dormant after 5 years 60-2403
c. The general rule is that a judgment that remains dormant for two years is extinguished
60-2403, 60-2404
d. Removed child support from the general rule: Child support judgments from the general
rule. Child support judgments do not become extinguished unless they have remained
dormant for the period prior to the child’s emancipation plus two years.
e. We conclude that the laws governing dormancy and reviver are procedural and may be
applied retroactively
f. Can go back 7 years on child support
g. If all missed and didn’t enforce – 2 years is dormancy, if in 2 years, can only go back 5
years.
h. If nothing has been done, just get two years
i. Never will apply during period of minority
j. Every unpaid is alive and grabable
k. Who files – person who supported the child.
vii. Gentzel v. Williams
1. UIFSA is jurisdictional stuff for child support
2. The parties were divorced in Arizona. The father was ordered to pay child support. The mother
and children moved to Texas and the father moved to Kansas. The mother assigned her right
to receive the support to the State of Texas. Kansas SRS filed a notice for income withholding
in Reno County to pay the support. The father challenged the income withholding order. The
Reno County Court eventually reduced the amount of support.
3. The only defenses to a proceeding to enforce child support is under 23-4,131(b) of an
interstate income withholding order
Family Law Outline – Spring 2009 (60 of 77)
a. A mistake of fact concerning the current amount owed or arrearages that had accrued
b. A mistake identity
c. A mistake about the income to withhold
d. Lack of personal jurisdiction.
4. He would need to modify in Texas, he would need to go where she was.
5. Court:
a. Interstate Income Withholding Act (IIWA),
i. Provide a quick and effective procedure for the withholding of income derived in
Kansas to enforce support orders of other jurisdictions and by requiring that
income withholding to enforce Kansas support orders be sought in other
jurisdictions
ii. 23-4,129 states that entry of an order pursuant to IIWA shall not confer jurisdiction
on the courts of this state for any purpose other than withholding.
iii. 23-4,131 provides that an obligor can only raise the following:
1. a mistake of fact that is not res judicata concerning the amount of current
support owed or arreage that had accrued, mistaken identity of the obligor
or the amount of income to be withheld
2. that the court or agency which issued the support order entered under KSA
lacked personal jdx
b. UIFSA
i. Procedural mechanism for the establishment, modification and enforcement of
child and spousal support obligations
ii. UIFSA adopts the concept of continuing, exclusive, jurisdiction to establish and
modify the levels of child support due to a particular child
iii. Once a court enters a support decree with jdx, it is the only body entitled to modify
it so long as it retains continuing, exclusive jurisdiction under the act
iv. Another state, while required by UIFSA to enforce the existing decree, has no
power to modify the original decree
v. 23-9,205 provides that a state issuing a support order has continuing exclusive
jurisdiction as long as the obligor, the oblige and the children reside therein or until
each party consents for another state to modify
vi. 23-9,611 – after child support order issued in another state has been registered in
this state, the responding tribunal of this state may modify that order if, after
notice and hearing, it finds that
1. the following requirements are met
a. the child, the individual, or the oblige and the obligor do not reside in
the issuing state
b. a petition who is a nonresident of this state seeks modification
Family Law Outline – Spring 2009 (61 of 77)
c. the respondent is subject to the personal jurisdiction of the tribunal of
this state
d. an individual party or the child is subject to the personal jurisdiction of
this tribunal and all of the individual parties have filed a written
consent in the issuing tribunal
c. FCCSOA
i. Similar to the UIFSA, both in terms of structure and intent
ii. 28 USC 1738B(a) and (c), if a child support order is made by a court hat had jdx
and gave notice and an opportunity for hearing to the parties, a court of another
state cannot modify the order except as provided
iii. modification under FFCCSOA of a valid order is only allowed if (1) neither of the
children or any of the parties remain in the issuing state and the forum state has
jurisdiction over the parties
iv. all parties have consented to the jurisdiction of the forum state to modify the order
v. 1738B(i) allows the party seeking to modify the order to register the order in a
state with jurisdiction over the nonmovant for the purpose of modification
vi. interpreting the word jdx to mean both personal and subject matter jdx to modify
would avoid the anomaly of reaching different results under FFCCSO and UIFSA
6. Note – Stapel v. Stapel
a. Parties changed partners essentially and court did not order support since each were in
the position of being required to support the children they lived with.
b. After one of the sons turned 18, he sued for support.
c. The court of appeals held that Allen had no cause of action because it is the generally
accepted rule that where a child has been supported during his minority by a single
parent, once that child becomes an adult any right of action for reimbursement from the
noncontributing parent belongs to the parent who provided that support and not the
child.
viii. Rule 139
1. Applications for ex parte orders and motion to modify shall be accompanied by a DRA
2. Shall be served.
3. Payments made to KPC
4. no ex parte order shall be issued without DRA
5. Shall file a response if motion or DRA is challenged
ix. Rule 164
1. In a divorce, annulment and separate maintenance cases, a DRA shall be prepared by counsel
and furnished on the court
x. Kansas Child Support Guidelines
Family Law Outline – Spring 2009 (62 of 77)
1. The guidelines are based on income shares model of support – the parties gross income is
added together to determine the total parental income. Then the chart is used to determine
the monthly amount of support based on the total monthly amount. The parents are
responsible for child support based on their proportional amount of the total parental income.
2. Not included in income: page 465-66
a. Public assistance, SSI
b. Extra income, seasonal, bonuses, second job) that is not historically relied upon by the
intact family
3. Included Income
a. Military basic allowances
b. Payments to a cafeteria plan with pretax dollars (FLEX account, child care)
c. Social Security disability payments (payments directly to the child based on parents
injury or disability is deducted from that parent’s support obligation. However, payments
of the child based on another persons disability cannot be deducted from the parents
obligation.
4. THE COURT IN ITS DISCRETION CAN IMPUTE INCOME TO A PARENT
a. Actual, reasonable and necessary child care costs paid to permit employment
or job search of a parent should be added to the child support amount, with
child care deducted
5. Multiple Family application
a. If the obligor has other children to support, the court may use the tables for the total
number of children supported. If there is another order to pay support for these children,
that amount is deducted from the gross income. However if the obligor has children who
reside with him or her, then the multiple family adjustment is used.
6. REBUTTABLE PRESUMPTIONS!!
a. Child support adjustments 471-74
i. Long distance parenting
ii. Parenting time adjustment
iii. Income tax considerations
iv. Special needs
v. Support of children beyond minority
vi. Overall financial conditions of the parties
vii.
b. Marital contracts
i. If prenup_ marriage is sufficient consideration
ii. If post marital – has to be quid pro quo – happening in this contract – can’t contract to be a good
husband, already a duty
iii. Marriage of Adams
Family Law Outline – Spring 2009 (63 of 77)
1. This case is pre KUPAA
2. Appellant asserts the agreement is invalid and seeks a new trial on the issues of alimony and
division of property. The parties signed the agreement during the hour preceding the wedding.
R was upset, but accompanied P to his office and examined the agreement and executed the
agreement in front of witnesses.
3. Trial Court found that the agreement should be upheld and enforced.
4. Court:
a. The general rule in this state is that contracts, made either before or after marriage, the
purpose of which is to fix property rights between husband and wife, are to be liberally
interpreted to carry out the intentions of the makers and to uphold such contracts where
they are fairly and understandably made, are just and equitable in their provisions and
are not obtained by fraud or overreaching. Generally speaking, such contracts are not
against public policy, although a different rule obtains where the terms of the contract
encourage separation of the parties.
b. She contends the decision is contrary to the evidence and that (1) it was obtained
through fraud and overreaching (2) it was not fairly and understandingly made; and (3) it
violates public policy
c. First – she said did not understandingly enter into the agreement
i. Due to fraud, duress and overreaching
ii. She knew what she was signing and had been advised generally of the nature and
extent of Raymond’s assets.
iii. She was fully aware of its contents and the consequences of it
d. Second – he did not voluntarily enter of her own free will
i. Where in each case the antenuptial agreement was signed the day of the wedding
– each case must be decided upon its own facts by application of the general legal
principle set forth earlier in the opinion
e. Third
i. Void against public policy because it tends to promote separation?
ii. The more modern rule is that any antenuptial agreement which is fairly and
understandingly made, equitable in its provisions, and not obtained through fraud
or overreaching will be upheld.
iii. Not void as to violate public policy
f. Factors courts take into consideration when reviewing marriage contracts: Factors to
consider before KUPAA – so do we use the factors or not?
i. Amount of the husband’s property
ii. The situation of the parties, compared to each other
iii. The parties respective property
iv. The parties family ties and connections
Family Law Outline – Spring 2009 (64 of 77)
v. The circumstances leading up to the execution of the contract and their marriage
g. KSA 23-804
i. Child support cannot be adversely affected
ii. 23-801, et seq Premarital agreement act
iv. Davis v. Miller
1. Davis sought damages for fraud and breach of warranty arising from a postnuptial agreement
alleging that Miller failed to make a complete disclosure of the value of his assets. Davis now
contents that she was not fully informed as to the value of Miller’s interest in GFS. Davis made
no attempt to independently value GFS.
2. Application of the KUPAA
a. The KUPAA does not apply to post marital agreements and was not enacted for
that purpose. Parties entering into a postnuptial agreement are in a vastly different
position than parties entering into a premarital agreement.
b. Parties can bind themselves to the provisions of an otherwise inapplicable act
by incorporating choice of law provisions in an enforceable contract. As long as
the application of a statute or act is not contrary to public policy, a court will uphold
application of an otherwise inapplicable statute or act.
c. The clear intent of the parties was to apply the KUPAA to their agreement.
d. KUPAA enforcement provision 23-807
i. The party did not execute voluntarily
ii. Or the agreement was unconscionable and
1. was not provided a fair and reasonable disclosure
2. did not voluntarily or expressly waiver disclosure of the property
3. did not have adequate knowledge of the parties
3. Voluntarily Execution
a. The burden of proof is on the party attacking the marital agreement asserting that it is
not enforceable pursuant to KSA 23-807
b. Failure to disclosure can sometimes indicate that a party has entered into an agreement
involuntarily, it is not dispositive
c. Duress or fraud in the inducement, on the other hand, is more indicative of a lack of
voluntariness.
d. Criteria court takes into account
i. Surrounding facts and circumstances
1. the situation of the parties as compared to each other
2. respective property
3. family ties and connections
4. circumstances leading up to the execution of the contract and marriage
5. age of the parties
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6. education
7. presence or absence of business experience
8. timing of the presenting of the agreement
9. who drafted the agreement
10. statements made by the parties wanting the agreement or counsel
11. who was present at the execution
e. courts may also consider whether a party had the advice of counsel – it is a significant
factor
4. Unconscionable?
a. KUPAA – has its own definition of unconscionability 23-807
b. Under the KUPAA, unconscionability is only an issue if there is inadequate disclosure
c. Under the KUPAA – there is no evaluation of fairness
d. Protection against overreaching, concealment of assets and sharp dealing not consistent
with the obligations of marital partners to deal fairly with each other.
e. Court may look to the economic circumstances of the parties resulting form the
agreement, and any other relevant evidence such as the conditions under which the
agreement was made, including the knowledge of the other party
5. Fair and Reasonable Disclosure
a. Courts have held that parties disclosing assets do not need to provide an exact
dollar amount if there is a general knowledge of the nature and extent of the
property involved
b. The mere fact that he may not have disclosed his assets and liabilities in detail to her,
will not, in the absence of anything showing fraud or deceit invalidate the contract, nor
will it raise a presumption of fraudulent concealment
c. Husband does not need to give a detailed disclosure of his assets where wife
has a general understanding of the nature and extent of his property
i. They were married for 20 years, she had access to records, and she could have
hired an expert to go over them.
6. Waiver of right to disclosure:
a. Contract is a waiver of future disclosure, not to past, but doesn’t matter, he adequately
negotiated
7. Indemnity provision applies
v. King v. Estate of King
1. Agreement stated that Lowanda and Arnett would each retain as his or her sole property all of
the real or personal property owned by each of them at the time of their marriage. They also
agreed that the survivor shall have the house and then sell it and divide it 50/50 between their
families. They each signed a deed that gave them joint tenancy with right of survivorship and
Family Law Outline – Spring 2009 (66 of 77)
not as tenants in common. She filed a petition seeking to quite title to the real estate. She
argued that the deed gave her legal title.
2. Her argument is that the deed supersede the agreement
a. Court was correct in that the deeds and the prenuptial agreement were not in conflict.
b. A reading of the agreement reveals that the parties contemplated the purchase of the
specific property at issue.
c. The parties clearly indicated their desire to have the property distributed evenly.
d. JT just gave her the power to remain in the house until death.
3. KUPAA – very little room for attacking a contract
4. 23-807 is enforceability
vi. Problem on page 498
1. Miller v. Davis – disclosure doesn’t have to be exact, kind of an idea
2. no fraud involved
3. She didn’t have an attorney, he was an attorney and he drafted the agreement
4. construed against the drafter
vii. Remember: what is client’s goal
1. Why – answers to problem
2. What is persons interests?
viii. Remember: you can waive alimony, but if you co on welfare, can’t ignore that, court can come in and
modify.
c. Maintenance
i. Intro
1. In Kansas, it makes a huge difference whether court ordered or agreement
2. 60-1610(b)(2) applies to court ordered
a. STANDARD COURT USES: Fair just and equitable under all the circumstances
i. Age of the parties
ii. Parties present and prospective earning capacities
iii. Length of the marriage
iv. Property owned by the parties
v. Parties needs
vi. Time, source and manner of acquisition of property
vii. Family ties and obligations
viii. Parties overall financial situation
ix. One party’s significant contribution to the other party’s education which
leads to the other party’s increase in earning capacity.
b. can be ordered in any action under 60-1601
c. fair just and equitable
d. needs vs. ability to pay – that is formula
Family Law Outline – Spring 2009 (67 of 77)
i. needs to help them become economically dependent
e. maintenance is prospective
f. abuse of discretion for past due support
g. case law – shows factors –
h. Court ordered termination:
i. Automatic:
1. death of payee/payor
2. even though it is silent in the order
3. expiration is also automatic
ii. Changed circumstances
1. changed financial situation
2. marriage of payee if not automatic under order
3. WHEN IS MAINTENANCE MODIFIABLE OR TERMINABLE UNDER THE STATUTE
a. The decree may make the future payments modifiable or terminable under
circumstances prescribed in the decree. The court may make a modification of
maintenance retroactive to a date at least one month after the date that the
motion to modify was filed.
b. Automatic termination
i. Terms in the decree
ii. Death of the payee or payor
c. Changed circumstances
i. Change in financial situation of payor or payee
ii. Marriage of the payee
4. Time Limit
a. 121 months at a time
i. In any event, the court may not award maintenance for a period of time in excess
of 121 months. If the original court decree reserve the power of the court to hear
subsequent motions for reinstatement of maintenance and such a motion is filed
prior to the expiration of the stated period for maintenance payments, the court
shall have jurisdiction to her a motion by recipient of the maintenance to reinstate
the maintenance.
ii. Cannot reinstate for longer than 121 months
iii. In Re Cline: the portion that exceeds the statutory limit of 121 months is void as a
matter of law
5. Maintenance may be paid in a lump sum, periodic payments, on a percentage of earnings or
any other basis.
6. When Can the Court Modify?
Family Law Outline – Spring 2009 (68 of 77)
a. At any time, on a hearing with reasonable notice to the party affected, the court may
modify the amounts or other conditions for the payment of any portion of the
maintenance originally awarded that has not already become due, but no modification
shall be made without the consent of the party liable for the maintenance, if it
has the effect of increasing or accelerating the liability for the unpaid
maintenance beyond what was prescribed in the original decree.
b. Kansas does not allow upward modification of maintenance.
7. Payment of maintenance
a. Paid through the central unit for collection and disbursement of support payments.
8. Guidelines in JO Co and SN CO do not seemed to be based on need, they merely set out a
formula for figuring maintenance based on two factors – the disparity between the spouses
gross income determines the amount of the maintenance
ii. MAINTENANCE AGREED TO BY THE PARTIES
1. KSA
2. 60-1610(b)(3) applies to any contract/agreement
3. “matters settled by an agreement incorporated into the decree, shall not be subject
to subsequent modification by the court except (A) as prescribed by the agreement
or (b) as subsequently consented to by the parties.
4. Can’t modify under agreement unless:
a. In the decree
b. Parties consent
5. USE OF CONTRACT PRINCIPLES TO INTERPRET TERMS OF THE AGREEMENT
iii. First question, is it court ordered or agreement
iv. 60-1610(b)(2) –
1. Future support is the reason alimony is awarded in divorce
2. “allowance for future support denominated as maintenance in an amount the court
finds to be fair, just and equitable under all the circumstances”
3. to be based upon the needs of one party and the ability of the other to pay
4. Maintenance deals with prospective, future support
5. Property division is retrospective to adjust the rights of the parties to property
already accumulated.
v. Reinstatement
1. Court has to reserve the power to reinstate.
2. Can reorder up to 121 months
3. A way to get around this is to do in on a percentage
4. So when income goes up, payor pays more
a. i.e. 25% of income
i. 25% couldn’t go up, but because income would, amount would
Family Law Outline – Spring 2009 (69 of 77)
5. cannot have effect on increasing liability
vi. Marriage of Sedbrook
1. The trail court abused its discretion in holding Luanne was precluded from receiving spousal
maintenance solely because she cohabitated with an unrelated male.
2. At common law, fault was a factor in determining alimony.
3. A cohabitant has no legal duty of support
4. Powell and Williams factors:
a. The age of the parties
b. Their present and prospective earning capacities
c. The length of the marriage
d. The property owned by them,
e. The parties needs
f. The time , source and manner of acquisition of the property
g. The parties overall financial situation
5. Sommers: determined that fault may no longer be considered in the division of property,
award of maintenance, or award of attorney fees when the divorce is sought and granted on
the ground of incompatibility.
6. Holding: The trial court abused its discretion when it refused to award maintenance based
solely on the fact of the wife’s cohabitation with a man after her separation with her husband.
The Court of appeals also held that it is not improper for the trial court to consider the nature
and extent of the financial contributions of an unrelated party, or that which he or she may be
capable of assuming, in order to maintain a relationship with the spouse seeking continued
maintenance from a former spouse.
7. In domestic relations actions it is the legislative intent that, in all but extremely gross and rare
situations, financial penalties are not to be imposed by a trial court on a part on the basis of
fault.
8. Trial court resolved the issue of maintenance on the single factor of cohabitation and failed to
conduct a realistic evaluation of the parties’ circumstances, future income and needs as is
required by Sommers.
9. Without a provision in a decree or agreement, most courts have found that cohabitating with
another is not by itself a sufficient change of circumstances to justify termination of
maintenance.
10. If the recipient is in fact being supported by the cohabitant, there may be a strong case for
termination based on need no longer being present.
11. Cohabitation: The act or state of dwelling together, or in the same place with another;
living together as husband and wife; a living together as man and wife. A condition or status of
the parties, a status resembling that of the marital relation. Cohabitation is not a sojourn, nor a
habit of visiting, nor even a remaining with for a time; the term implies continuity.
Family Law Outline – Spring 2009 (70 of 77)
12. Wessling: Ex wife and unrelated male did not intend to marry, never maintained a home
together, and never shared living expenses nor jointly owned any property, they were not
cohabitating.
13. the trial court’s finding of cohabitation may not be equated with the conclusion that
Luanne’s relationship with an unrelated male has become that of wife and husband and is not,
by itself, sufficient to justify denial of spousal maintenance.
14. 60-16010(b) – financial aspects of the dissolution of marriage - fault should not be considered.
vii. Marriage of Jones
1. The decree of divorce incorporated a property settlement agreement dated May 26, 1982.
William filed a motion to terminate alimony and a motion to set aside the alimony judgment.
Court denied his motion to terminate.
2. Court:
a. The agreement did not contain any language giving the trial court authority to modify it
b. Shall not be subject to modification, if the parties entered into a separation agreement
except: as prescribed by the agreement or as subsequently consented to by the parties.
c. Can still enter into agreements on own terms, as long as they are fair just and equitable.
d. Because the agreement did not give the trial court the power to modify the agreement,
its provisions cannot be changed by the court absent the consent of both the parties.
e. Spaulding: Payment of alimony settled by mutual agreement of the parties, found by the
trial court to be valid, just and equitable, and incorporated into the decree of divorce, is
not subject to subsequent modification by the court except as the agreement itself may
prescribe or as the parties consent.
f. Because parties entered into an agreement, the trial court no longer had continuing
jurisdiction
3. Note: Herzmark v. Herzmark
a. We believe the remarriage of a divorced person, who is the recipient of alimony
payments, does not itself terminate the right to alimony. Proof of a valid remarriage does
not make a prima facie case, which requires the court to end it, in the absence of proof
of some extraordinary circumstances justifying its continuance.
viii. Drummond v. Drummond
1. The decree of divorce incorporated a separation agreement which had stipulations for a
division of property, alimony and custody support of the parties minor children. The wife filed a
motion to modify with respect to alimony. Wife had remarried. She said the alimony was a
division of property, and that in view of D’s impending remarriage it would unjustly deprive her
of property unless modified.
2. Court:
a. Alimony is now a future support concept and it no longer retains any relationship to the
division of property
Family Law Outline – Spring 2009 (71 of 77)
b. There is no grant of statutory authority to the court to modify the part of a divorce
decree which relates to an award or division of property.
c. Legislative intent to withhold from a trial court the power to modify its original decree as
to property rights or division of property.
d. Her motion has the effect of changing
e. the division of property which is prohibited by Flannery
f. We do not believe that a D, through her counsel, can present a separation agreement to
the trial court, seek the trial court’s approval, ask the trial court to incorporate it and
then by motion request the trial court to set it aside.
g. Having made the decision she is bound by it and cannot avoid the consequences
because of a subsequent decision to eek the happiness of marriage.
3. Note: Baird v. Baird
a. The separation agreement had been incorporated into the divorce decree. She was to
receive alimony until she remarried or died, “as provided by the alimony laws of the
State of Kansas”
b. The SC held that the words as provided by the alimony laws of the State of Kansas
coupled with the court retaining permanent jurisdiction of the case meant that the
parties were referring to the alimony “law” that allowed the court to modify alimony,
because otherwise there was no need for the court to retain jurisdiction over the case.
c. Thus, the are able to file a motion to modify the maintenance payment (downward only)
at any time there is a change in circumstances
d. In a separation agreement, the 121 month rule does not apply. Is it valid, just
and equitable?
e. This is the magic language case.
f. Payor gets best of both worlds, they get benefit of having an agreement and
because of magic words, can come in at anytime later and reduce.
g. The Kan S. Ct. held that the language “as provided by the alimony laws of the
state of Kansas” plus the retention of jurisdiction, meant that the court
retained jurisdiction to modify the amount of alimony.
ix. Blair v. Blair – Court order
1. The question before the court is that of the trial court’s authority to modify an alimony
judgment by relieving the appellee of the obligation to pay past due installments as to which
he was in default.
a. 1610(c) – as to alimony judgments – the court was without authority to set aside past
due installments under the authority of 60-260(b)(6). This is because the remarriage of
the beneficiary of an alimony judgment could hardly be a reason justifying relief from the
matured alimony payments if such relief could not be granted for that or any other
reason under the statute referring specifically to alimony judgments.
Family Law Outline – Spring 2009 (72 of 77)
b. The specific provisions in 60-1610 is a limitation on the general authority under 60-
206(b)(6)
c. Silent about remarriage, he didn’t file a motion to modify.
d. Can’t modify this because specific controls over general!
e. 60-206(b) is general
f. 60-1610 is specific – only modifiable or terminable by courts provisions
2. Note:
a. Sweeney –
i. Husband and wife entered into an agreement in which the husband agreed to pay
the wife maintenance. 3 years into the divorce he died.
ii. KS SC said wife could not recover from estate the alimony for her expected period
of life.
iii. The general rule is that periodic payments of alimony to a divorced wife terminate
upon the former husband’s death in the absence of a provision in the settlement
agreement.
iv. There is authority that a court has no power without the husband’s consent to
require payments of alimony to continue after his death.
v. Child support also terminates on the death of the payer unless agreed otherwise.
x. Miller v. Miller
1. The D appeals from an order purporting to construe that portion of the original decree which,
in addition to awarding the wife monthly alimony, ordered the H to pay annually as alimony: a
further sum equal to 25% of the Defendant’s adjusted gross income over $10,000 as computed
for Federal Income tax purposes.
a. Court is unable to see any ambiguity in the original decree.
b. Means AGI from year in K
2. Note: Beard v. Beard
a. In the property settlement agreement the parties agreed that the wife should receive
alimony based on a percentage of the husband’s adjusted gross income. Four years
later, C has amended the internal revenue code to allow taxpayers to deduct alimony
payments from the adjusted gross income.
b. H deducted alimony he paid in 1977, thereby reducing his adjusted gross income.
c. The language of the agreement stated that the husband’s alimony was based upon the
previous years Federal income Tax return.
3. Note: Carlson v. Carlson
a. Husband was ordered to pay 225 per month. Two years later, court reduced the amount
to $175. The wife now developed physical problems, leaving her totally disabled. She has
requested the court increase the alimony to $210 per month. The husband objects to her
request.
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i. Result is they can increase it to $210
ii. Can go up and down but cannot increase past the amount in the original
order!
iii. Anything after original order is a modification
xi. Court Ordered Maintenance under KSA 60-1610(b)(2)
1. Lambright v. Lambright
a. KS court of appeals said 60-1610(b)(2) was not retroactive.
b. The court held that the amendment, by itself, was not sufficient basis to terminate
maintenance awards that a divorce court ordered prior to 1983 when the amendment
took effect.
c. The court found that because the ex husband’s standard of living had increased even
more than the ex-wife’s, continued maintenance was justified
d. Rejected H’s argument that his former wife’s standard of living had improved and there
was no need for continued maintenance
2. Bair v. Bair
a. The H argued his severe financial reverses made it impossible for him to comply with the
terms of the agreement.
b. The KS S.Ct. refused to modify the agreement because 60-1610 of the KSA prohibits the
court form modifying alimony provisions in a separation agreement unless the terms of
the agreement give the court the power to modify or the parties agree to the
modification.
3. In Re Arndt
a. Property settlement agreement allowed the wife to remain in the family home until such
time as she remarries or the parties sell the property but mutual agreement or until she
moves out.
b. H brought an action to force the sale because the wife was cohabitating with her
boyfriend, who paid half the utilities and groceries and $200 in rent.
c. KS SCt. Held that the terms of the agreement controlled. Because there was no
remarriage, the trial court was powerless to force the sale of the house.
d. Fleming: rejected the ex-husband’s argument and held that because the paramour had
no legal obligation of support, the ex-wife was not receiving support from two men.
4. In Re Wessling
a. the property settlement agreement allowed the ex husband to reduce the amount of
maintenance he paid to his ex wife upon her continuous or continual cohabitation with
an unrelated male.
b. The ex-husband argued she was continuously or continually cohabitating with an
unrelated male because she periodically spent the night with the male
c. The court rejected this interpretation.
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d. The word cohabitation meant to live together as husband and wife including the mutual
assumption of those marital rights, duties and obligations which are usually manifested
by married people
e. The court held that there was no cohabitation in this case because the parties:
i. Have not held themselves out as husband and wife, and they have no plans to
marry
ii. They have never maintained a home together and have kept separate residences.
iii. They have not shared living expenses
iv. The have not jointly owned any property
v. Never lived together as husband and wife.
f. TERMS CONTROL!!
xii. Final Notes on Maintenance

A.Marital Investment Theory--"Professor Ira Ellman has recently proposed that the purpose of alimony is to encourage spouses to maximize
their economic potential by 'reallocat[ing] the post divorce financial consequences of marriage in order to prevent distorting incentives.' Ira
Mark Ellman, The Theory of Alimony, 77 Cal. L. Rev. 1, 50 (1989). Ellman believes that most married couples allocate their
contributions to the marriage on an economic basis: husbands, who generally can earn more, work out of the home and earn, while wives,
who generally cannot earn as much, do housework and earn little or nothing. During the marriage, this works to the benefit of both spouses
(especially where the husband has a much greater earning potential) because it maximizes income, something that Ellman thinks should be
encouraged. Unfortunately for the wife, however, such an arrangement works to her disadvantage if the spouses divorce, because the
husband leaves the marriage with the earning power he amassed during the marriage, while the wife has nothing of the sort. Ellman argues
that she should be compensated with alimony for that fact, which he calls 'marital investment.'" John C. Sheldon and Nancy Diesel Mills, In
Search of a Theory of Alimony, 45 Me. L. Rev. 283 (1993).

B.Rehabilitation Theory--These are time limited payments, with the goal that the payee will get an education or training to make him/herself
self-sufficient.

C.Expectation Interest Theory--The maintenance is paid because of the spouse's interest in having the benefit of his or her bargain by being
put in as good a position as he or she would have been in had the contract been performed. Under this theory, the person receiving
maintenance would receive the maintenance in order to be "put in as good a position as he or she would have been in" if the marriage had
continued.

D.Reliance Interest Theory--The spouse's interest is reimbursed for the loss caused by his or her reliance on the marriage by being put in as
good a position as he or she would have been in had the contract not been made (ie. had he or she not married). The difference between this
theory and the expectation theory is that the court compensates the spouse not for his or her expectation (future), but compensates the
spouse for what he or she gave up.

E.Restitution Interest Theory--The spouse's interest is having restored to him or her any benefit that he or she has conferred on the other
party. The focus of this maintenance theory is one of reimbursement.

F.Marital Tort Compensation Theory--Some courts will award maintenance in situations in which the behavior of one spouse toward the other is
tortious in nature, such as serious physical or emotional abuse.
Family Law Outline – Spring 2009 (75 of 77)
G.Unjust Enrichment Theory--Sheldon and Mills define unjust enrichment as having four elements: 1) reliance by one party 2) creating a
benefit to the other party 3) and a detriment to the relying party, 4) resulting in circumstances suggesting injustice. "The purpose of alimony
[under the unjust enrichment theory] is the prevention of unfairness by forcing ex-spouses to share all of the economic gains and losses that
have been produced by the marriage but that are realized after the divorce." John C. Sheldon and Nancy Diesel Mills, In Search of a Theory of
Alimony, 45 Me. L. Rev. 283 (1993).

d. PROPERTY DIVISION
i. In Re Marriage of Sommers
1. Divorce action in which husband appeals from the division of property, award of maintenance
and allowance of attorney’s fees
2. Issue: Whether it was proper for the trial court to admit evidence of fault and to consider fault
in the division of property and awards of maintenance and attorney fees when divorce was
based on incompatibility?
3. Evidence was admitted that she was having an extra marital affair
4. Court:
a. Kansas law does not require equal split of all property acquired during marriage but
rather gives the court discretion to consider all the property to arrive at a just and
reasonable division
b. 60-1601(a): The district court shall grant a decree of divorce or separate maintenance
for any of the following grounds: (1) incompatibility, (2) failure to perform a material
marital duty or obligation or (3) incomparability by reason of mental illness
c. 60-1610(b)(1): the court shall consider the age of the age of the parties, the duration of
the marriage, the property owned by the parties; their present and future earning
capacities; the time, source and manner of the acquisition of property; family ties and
obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such
other factors as the court considers necessary to make a just and reasonable division of
property.
d. We conclude that in domestic relations actions it was the legislative intent that , in all
but extremely gross and rare situations, financial penalties are not to be imposed by a
trial court on a party on the basis of fault.
e. It is difficult to conceive of any circumstances where evidence of marital infidelity would
be a proper consideration in the resolution of the financial aspects of marriage.
f. Fault, as a term of art, should not be considered in the determination of the financial
aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of
such consideration. The only exception would be some rare and unusual situation where
a party’s conduct is so gross and extreme that failure to penalize therefore would, itself,
be inequitable.
g. KSA 23-201() – all property owned by married person….so long as you keep it separate
h. 201(b) –
Family Law Outline – Spring 2009 (76 of 77)
i. marital property at the time of commencement of the action
ii. minute you file, it is considered marital property
iii. factors – just and reasonable
ii. Marriage of Sedbrook
1. Luanne claims the trial court erred by ruling Delbert’s city of Wichita pension is not a marital
asset subject to division and may only be considered as a source of funds for the payment of
child support or maintenance.
2. The trial court erred in finding Delbert’s firefighter’s pension was not marital property.
3. The key to an equitable distribution of marital assets is fairness, not mathematical precision.
4. The benefits represented compensation for marital effort and are substitutes for current
earnings which would have increased the marital standard of living or would have been
converted to other assets divisible at dissolution.
5. Anti-alienation provisions are designed to protect benefits from creditors and not from spouses
and family members
6. We hold that the anti-alienation provisions do not apply to claims of a spouse at the time of the
marital dissolution.
iii. Marriage of Rodriguez
1. Respondent is serving a 56 month prison term and participated in the division of disputed
property. The trial judge awarded approximately 90,000 in assets to petitioner and very little
to the respondent.
2. Issue is did he dissipate assets?
a. To dissipate – to destroy or waste, as to expend funds foolishly. Expend aimlessly or
foolishly, to use up especially foolishly or heedlessly
b. This latitude provides the judge with the discretion to consider whether marital assets
were lost as a result of the wrongful conduct of one of the parties to the marriage
c. The plain meaning of to dissipate does not require a time frame imposed by Illinois. The
Kansas legislature has provided no indication that dissipation should be interpreted
following the IL rule or that the term should have any unique significance beyond its
ordinary meaning
d. Does not require an equal split, gives the court discretion to consider all of the property,
regardless of when acquired, to arrive at a just and reasonable division.
iv. QDRO
v. Woodworth v. Woodworth
1. Issue is whether P’s law degree is marital property subject to distribution
a. Plaintiff contends that his law degree is not a marital asset. Court disagrees
b. P’s law degree was a result of mutual sacrifices and effort by both plaintiff and
defendant.
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c. Fairness dictates that when a spouse who did not earn an advanced degree be
compensated whenever the advanced degree is the product of such concerted family
investment.
d. Merely seeking her share of the fruits of the degree
e. Whether or not an advanced degree can physically be defined as property is beside the
point. The student spouse will walk away with a degree and the supporting spouse will
depart with little more than knowledge that he or she has substantially contributed
toward the attainment of that degree.
f. Factors: the length of the marriage after the degree was obtained, the sources and
extent of financial support given plaintiff during his years in law school, and the overall
division of the parties marital property. In determining the degrees present value, the
trial court should estimate what the person holding the degree is likely to make in that
particular job market and subtract from that what he or she would probably have earned
without the degree.
vi. Lewis v. Lewis
1. Donald Lewis contends the court erred in modifying the agreement made by the parties
awarding defendant future support payments.
2. Issue: Whether the trial court erred in its modification of the parties agreement?
3. Court is powerless to modify a valid, just and equitable separation agreement, except as to
matters authorized by statute, unless the agreement provides for or the parties consent to
such power.
4. As a general rule, the court has no continuing jurisdiction of power of modification over a
division of property after entering into an original divorce decree.
5. In finding that an agreement is valid, just and equitable, as required by the statute, the
agreement must be carefully scrutinized. A necessary corollary of the trial court’s duty to
examine the separation agreement as to whether it is valid, just and equitable, is the power to
modify such agreement prior to its incorporation into the decree.
6. We hold that if the trial court finds that a separation agreement is not just and equitable, it is
free to reject or make reasonable adjustments to the agreement, provided it does so before
entering a final judgment that merges the separation agreement into a divorce.
7. The trial court’s addition of the cash payments to the parties’ separation agreement was not
an abuse of discretion.