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CHAPTER 1: THE IMPORTANCE OF BEING MARRIED Ownership and Control of Wealth: legal unit of family may own property jointly; legal system views family as a group of individuals who have various claims against each other but do not hold property as a family What claims do individuals have against each other? Only in LA does the state recognize a forced inheritance against children children in other states do not have claims against parents Child does have claim for support against a parent and may even be able to make that claim prior to divorce; may not even end at 18 Spouses have claims against each other for support Marriage and Property: Common Law States vs. Community Property States Main difference is the treatment of property during the marriage (see more below, under who controls) In community property state, couple shares ownership in all acquired during marriage, In common law state, spouse who acquired to asset has full access to the that asset Common law States Definition: The name on a title to an asset may indicate ownership of the asset during the marriage; upon dissolution, marital property is divided equitably according to the judges discretion The owner of the property may manage, control, and dispose of the asset with the consent of, or notice to, the other spouse (a) Judge has discretion to divide the marital property equitably (i) Note MA as kitchen sink state, where everything, despite ownership/title, is up for grabs (2) MURDOCH v. MURDOCH (1974, Canada) (where, upon divorce, wife claims interest in ranch property including land and other assets to which she contributed her services and some capital): There is no evidence that there was any common intention that the beneficial interest in the property at issue did not belong solely to the husband, in whom the legal estate was vested (a) Illustrates shortcoming of common law regime: what acquiring spouse acquires belongs to him and other spouse has no interest in it no matter how much work she invests in it ii) Community property states (1) Includes: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin; in addition, Puerto Rico is a community property jurisdiction (2) Definition: These states generally regard as community property all property that has been acquired during the marriage, other than by gift or inheritance; even if one spouse earns all the money to acquire the property, all the property acquired is considered to be community property, i.e. the result of the combined efforts of both spouses (a) Separate property includes assets that the spouse acquired prior to marriage or after its dissolution, by individual gift or inheritance during marriage, by designation as separate property by valid contract or court decree (i) In TX, all income during marriage is considered to be community, whether it is from a separate property source or community property source (b) Spouses own equally all community property (i) CA specifies that community property must be split 50/50 upon divorce, whereas TX allows the judge to exercise his discretion as he believes is just and right (no guaranteed 50/50 division) (3) What property is of interest to creditors? Since debtor is entitled to of wifes earnings, the creditors can go after this , though spouses may set up an arrangement to keep money from creditors claims

FAMILY LAW OUTLINE (a) One of the motivating factors of community property was the desire of non-earning spouses to be able to borrow on their spouses earnings (4) Interstate aspect of community property (a) California courts used to say that property acquired elsewhere upon move into CA becomes community property; but CA Supreme Court declares this unconstitutional because it would be forcing an individual to divest his ownership in land rightfully his (i) In response, CA legislature creates concept of quasi-community property (property acquired elsewhere that would not have been community property) differs in that quasi concept only operates on divorce or on death of a spouse, i.e. will be divided the same way other community property will be divided (ii) If husband attempts to dispose of his interest in wifes quasicommunity property upon her death, he is prohibited because this runs into same objection of allowing husband to dispose of interest in quasi-community property during the life of the wife (b) Suppose husband and wife are domiciled in CA and acquire real estate in MA and money used to acquire real estate is community property CA looks to source of the funds used to acquire the property to classify such property (i) Community property is applied on a look-back basis; in the absence of records establishing the character of assets as community or separate, the presumption of property acquired during marriage is applied in the absence of evidence establishing the opposite iii) Who controls property during marriage? Can spouse give away what he/she makes without consent of wife? (1) In common law states, either spouse has ability to give away the personal property that he or she has acquired without consent of other spouse; in some states, there is a dower interest, which prevents such (though this is not the case in MA) (a) Transfers on eve of divorce will come under scrutiny (2) In community property states, one spouse may not give away community property without the consent of the other spouse (a) Though some states, e.g. TX, say that you can give away some minimal amounts of community property without consent of other spouse The New Property: wealth takes form of rights or status rather than tangible goods i) BOGGS v. BOGGS (1997, U.S.): ERISA preempts a state law allowing a nonparticipant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits; the non-participant spouses testamentary transfer is a prohibited assignment or alienation ii) Congress had been concerned with adequacy of pensions of service persons and if the courts took some away it would infringe on support (1) Legislative response to active lobbying by former spouses of service person is Former Spouses Protection Act if a divorcee had spent 10 years during the marriage, then state court could apply marital property laws to give interest in pension to former spouse


FAMILY LAW OUTLINE Daily Management and Control of Marital Wealth McGUIRE v. McGUIRE (1953, NE) (where wife seeks support from her husband, who, being very frugal, deprived her such things as new clothing, long-distance phonecalls, money for grocery shopping, suitable transportation, necessary household items and appliances, including indoor plumbing, etc.; wife has source of her own income from chickens she raises and some funds from her deceased father; she spends this rent when she visits her daughters, which is infrequent; her daughters provide her with some clothing; she testifies to being a loving and devoted housewife): Supreme Court reverses, claiming that in this jurisdiction it is necessary for the parties to be separated or living apart from one another to maintain an action for support; further, Mrs. McGuire is not devoid of money and has a fair-sized bank account, with access to the rent money of the acres owned by her first husband (2) Note that this is prior to no-fault divorce movement of 1979, so she may not be able to get a divorce, though she may have an argument under mental cruelty (3) Suppose she moves out and wants maintenance husband may respond that she has abandoned and has no legal grounds for separation (4) Family privacy is pivotal in decision but at what point are other considerations enough to trump family privacy? (a) Domestic violence (b) Neglect of children (c) Withholding of needed medical care Marriage and Financing Long-Term Care: Medicare/Medicaid iii) Medicare: When an individual is institutionalized and employs Medicare to pay for most of his or her bill, most of the individuals income is used to pay a portion; if the institutionalized spouse is the primary income producer, federal law provides that the community spouse is entitled to a calculated portion of that income for his or her living expenses (1) Septuagenarian v. Septuagenarian (1984, NY), where court grants wifes petition to gain access to her institutionalized husbands pension and Social Security benefits, on which they had lived prior to the husbands confinement (2) In the Matter of Gomprecht (1995, NY), where court denies wifes petition to substantially increase her already large allowance to enable her to live as she did before because this would be inconsistent with the acts purpose to prevent pauperization iv) Estate Planning for Disability/Divestment for Medicaid: how to get poor, but not too poor, for Medicaid; there are elder law centers that specialize in the problems of people who want to qualify for Medicaid; but there is a 3-year look-back, looking at how much was transferred and average cost of nursing facility care in locality (1) Children do not want to have their resources depleted by putting their parents in nursing homes; so child usually initiates grabbing the assets of the parents in anticipation of fact that parents will need nursing care in not much more than 3 years (2) Does divorce pay in context of long-term care? (a) The resources of the spouse are attributed to the Medicaid applicant, i.e. Medicaid looks at joint income, except where community spouse has most of the income, he or she has no obligation to pay for institutionalization and is not considered in determining Medicaid eligibility (but this is only applicable to nursing homes) (b) Deduction for medical expenses for tax purposes are better for single income (7.5%) (c) Woman concluded that in order for estate to not be depleted by husbands medical liability, she needed to divorce husband The Necessaries Doctrine: Spouses are obligated to support each other in every state; so if one spouse does not have the resources to support herself, the other spouse has the obligation

FAMILY LAW OUTLINE SHARPE FURNITURE, INC. v. BUCKSTAFF (1980, WI) (where wife purchases a sofa on credit from plaintiff, but neither she nor her husband remits any payment for the sofa): When an item is obtained for the benefit of the family which is necessary and no payment for that item is made, the elements of an action for an implied-in-law contract exist, and the husband is primarily liable; the plaintiff need not show that the husband has failed, refused, or neglected to provide the items in question; here, the item is deemed legally necessary, and the husband faces liability for such (3) The husband is under legal obligations to support his wife, and nothing but wrongful conduct on her part can free him from such obligation; such necessaries include food, apparel, medicine/medical attendance, means of transportation, furniture, etc. v) Four Schemes of Necessaries Doctrine (1) Husband is liable for both his debts and those incurred by his wife (2) Husband is primarily liable for necessaries, and the wife secondarily liable, as held in Buckstaff (3) Creditor may choose either or both spouses as target of liability (joint and several liability) (4) Creditor should seek to recover first against the spouse incurring obligation, making the other secondarily liable Constitutional Decisions Involving Gender-Based Classifications vi) Women as professionals: BRADWELL v. ILLINOIS (1873) (denying women admission to the Illinois bar): Man is, or should be, womans protector and defender; the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband vii) Women as bartenders: GOESART v. CLEARY (1948) (Michigan law providing that no woman could obtain a bartenders license unless she was the wife or daughter of the male owner of licensed liquor establishment): Since bartending by women may give rise to moral and social problems, the legislature need not allow women to hold a license viii) Drinking age: CRAIG v. BOWEN (1976) (Oklahoma law prohibiting sale of 3.2% beer to males under the age of 21 and women under the age of 18): Classifications by gender must serve important governmental objectives and must be substantially related to those objectives; here, the objectives are for enhancement of traffic safety, but there is not a strong enough correlation to justify the means (1) Note Reed v. Reed as underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification ix) Widowers vs. Widows: CALIFANO v. GOLDFARB (1977) (OASDI provides survivors benefits to widows generally, but to widowers only where the widower was receiving at least of his support from his deceased wife): The differential treatment of nondependent widows and widowers results from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent; such assumptions do not suffice to justify a gender based discrimination in the distribution of employment-related benefits (1) Weinberger v. Wiesenfeld: classification is not justified when then it is supported by no more than archaic and overbroad generalizations or old notions, such as assumptions as to dependency, that are more consistent with the roletyping society has long imposed, than with contemporary reality x) Actuarial factors: CALIFANO v. WEBSTER (1977) (act granting retired female workers higher monthly old-age benefits than those awarded similarly situated retired male workers): Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as such an important governmental objective xi) Alimony: ORR v. ORR (1979) (Alabama alimony statute which provide that husbands, but not wives, may be required to pay alimony upon divorce): This law perpetuates the stereotypes that men are the breadwinners and women the

FAMILY LAW OUTLINE housewives; the alleged compensatory purpose of the law may be effectuated without placing burdens solely on the husband xii) Statutory rape: MICHAEL M. v. SUPERIOR COURT of SONOMA COUNTY (1981) (challenging act that made only men liable for statutory rape on equal protection grounds): Because the objective is protecting young women from unwanted pregnancies, a criminal sanction imposed solely on male serves to equalize the deterrence on both sexes xiii) Draft: ROTSKER v. GOLDBERG (1981) (challenging constitutionality of congressional legislation requiring men, but not women, to register for the draft): The Constitution requires that Congress treat similarly situated persons similarly, not that it engaged in gestures of superficial equality xiv) Peremptory challenge: J.E.B. v. ALABAMA (1994): Gender-based juror challenges could not survive the heightened protection scrutiny used for distinctions based on gender; assumption that women and men may differ in receptivity to arguments is based on very stereotypes law wishes to condemn xv) Military academies: UNITED STATES v. VIRGINIA (1996) (deciding the constitutionality of Virginia Military Academys exclusion of women): Any genderbased government action must rest on exceedingly persuasive justification; state must demonstrate at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives; the justification must be genuine and not pretextual or post hoc; here, the governments justification did not suffice c) Spousal Contracts During Marriage i) Likely that the stakes would be much higher when a marriage is ongoing (1) There may be children where the wife may be more likely to want to keep the family together for the sake of the children (see Pacelli, below) (2) Also, the wife is prone to a certain lifestyle within the marriage and may be less willing to be without such lifestyle in the event of divorce; wifes contribution to marriage is likely to be front-end loaded, i.e. contributing early on by giving up job, having and caring for children (a) Wife will expect that husbands earning power will increase and she will enjoy an eventual comfortable retirement (3) The extent to which married couples are able to play on each others sensitivities and vulnerabilities, i.e. they know each other very well and which buttons to push ii) How does the situation change when a couple has separated and they are negotiating the consequences of divorce? (1) 90% are negotiated privately, because of considerable uncertainty as to how judicial intervention may play out, even if spouse knows the state where the divorce will occur (2) These negotiations are more at arms-length no longer the illusion that the other party has best interests at heart (3) But, given adversarial nature, one party may be apt to hide assets or otherwise not cooperate (4) Also, if children are involved, there will be financial problems if father seeks custody; this may create a greater vulnerability on the part of the wife; custody battles can be expensive and extensive iii) BORELLI v. BRUSSEAU (1993, CA) (where appellant and decedent enter into oral contract during marriage whereby the decedent promised to leave to appellant his property if appellant agreed to care for the decedent in his home for the duration of his illness, avoiding the need for him to move to a rest home; appellant performs, but decedent does not, instead leaving his property to his daughter): A spouse is not entitled to compensation for support, apart from rights to community property that arise from the marital relation; personal performance of a personal duty created by the contract of marriage, i.e. the care and support of a spouse, does not constitute new consideration supporting the indebtedness

FAMILY LAW OUTLINE (1) Note that though she is performing a legal duty, she is performing it in one specific way, thereby forgoing an easier, more convenient option is this consideration? (2) Note inconsistency: (a) If she makes a contract to be paid, she cannot sue to enforce (b) If she had made no such contract but refused to perform her services while the husband was still living, the court would not intervene (recall McGuire) iv) PACELLI v. PACELLI (1999, NJ) (where plaintiff and defendant were married, but after two children, plaintiff became unsettled; with the advice of counsel, he drew up an agreement that would grant his wife $500,000 in the event of divorce; in exchange for her signature, he would not leave the marriage; wanting to keep her family together for her children, the defendant signed the agreement, despite that her counsel advised her against doing so): The terms were not fair and just, where she would have received somewhere around 1/3 of her husbands worth upon divorce (in 1985, $3 million; in 1994, $11 million) (1) A reconciliation agreement will be enforced if fair and equitable, but only if the marital relationship has deteriorated to the brink of indefinite separation (see Nicholson v. Nicholson (1985)); here the marital crisis was artificial, created by the plaintiff to take advantage of his wifes vulnerability and dedication to the marriage Marital Property at Death: The Surviving Spouse and Statutory Share Modern statutes ordinarily give either surviving spouse a fee interest but only in property owned by the decedent at the time of his death Intestate Succession The intestate share of the decedents surviving spouse is the entire estate if: No descendant or parent of the decedent survives the decedent; or All of the descendants surviving descendants are also descendants of the surviving spouse and there is no other surviving descendant of the surviving spouse who survives the descendant The intestates share varies where the decedent has a living parent, where the surviving spouse has living descendants that are not of the decedent, and where the decedent has living descendants who are not of the surviving spouse v) Elective Share: All common law states, except GA, do give elective share option to surviving spouse (1) Elective share is likely to depend on whether or not there are children of the decedent; if there are none, it is likely to be ; if there are, it is likely to be (a) Allowing the decedent to protect children of prior relationships, who cannot count on goodwill of stepmother (b) Majority of states say that the surviving spouse may be trusted to take care of children, if they are her children (c) Do not want to create a situation where surviving spouse is worse off if she stayed in the marriage until death rather than divorced her husband (i) CA is the most prominent example where the division on divorce and on death is the same (2) Correcting for Over-Generosity: Uniform Probate Code provides that the surviving spouse of a decedent has a right to take an elective share equal to the value of the elective share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other (a) The augmented estate includes most assets of both the decedent and the surviving spouse, whether acquired during the marriage or before and whether received by earning or through gift or bequest (b) Elective share can increase to if the marriage lasts for 15 years (3) Property Earned Outside of Marriage

FAMILY LAW OUTLINE (a) ALI provision says that, upon divorce, separate property goes to owning spouse; but over time in the marriage separate property is gradually transmuted into marital property in the event of death (b) To protect a stay-at-home spouse; also, with passage of time, spouses tend to assume that separate property is theirs and will be available upon retirement for support (4) Gifts Diminishing Elective Share: ALI includes outright transfer made within 2 years of the death and various arrangements where decedent controlled the property until time of death (5) Other Spouses Assets to Determine Share (a) Turns on whether we view the elective share as necessary for support or having compensatory value; has been adopted in 7 states (creates difficulty in now requiring need for appraisal of not only the decedents assets but now of the surviving spouses also) (b) Uniform Probate Code has a feature that computes elective share on basis of combined assets of both decedent and surviving spouse, e.g. where surviving spouse has $600 and decedent has $400, survivor gets nothing vi) Retirement Equity Act of 1984: All pension plans governed by ERISA must create contingent survivorship interests for the non-employed spouse in the employees pension that come into effect if the non-employed spouse survives the participant (1) This can apply when the spouse dies either before (qualified pre-retirement survivor annuity) or after (qualified joint and survivor annuity) retirement (2) The motivation for this protection was a protection of women who pursued traditional marital roles and consequently had no or small pensions of their own (3) REAct amended ERISA to transfer the power to choose from the participant to the nonemployee spouse by providing that the participant may waive the QJSA only if the spouse of the participant consents in writing d) Crimes Between Spouses i) Marital Rape Exception: PEOPLE v. LIBERTA (1984, NY) (where the court had to decide the issue of whether the marital exception to rape was constitutional): The Court holds that the marital exception to the crime of rape is unconstitutional under the laws of equal protection; to ever imply consent to coerced intercourse is irrational (1) While many legislatures have struck down the marital rape exception, the Model Penal Code has retained it because it would otherwise thrust the prospect of criminal sanctions into the ongoing process of adjustments in the marital relationship ii) Violence Against Women Act of 1994: Federal civil and criminal remedies for victims of violence motivated by gender-based animus; creates a federal crime for physical injury to a spouse or intimate partner while in interstate travel (1) United States v. Lopez (1995): District Court relies on congressional findings and reports demonstrating the effect of gender-based crime and fear of crime on employment opportunities, health expenditures, and consumer spending, all of which affect interstate commerce and the national economy (a) Fourth Circuit reverses, claiming that gender animus is not itself commercial or economic and lacks any meaningful connection with some particular, identifiable economic enterprise or transaction; slippery slope argument (2) This is held unconstitutional by Supreme Court in United States v. Morrison (2000) Reproductive Choice within the Family iii) Contraception: GRISWOLD v. CONNECTICUT (1965): Held unconstitutional a CT statute making it an offense to use any contraceptive; this case is the benchmark case for Supreme Court recognition of an individual right to privacy, though such right is not directly enumerated in the Constitution


(1) The right to use contraceptives was extended to single people in Eisenstadt v.
Baird (1971): If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child iv) Abortion (1) What are the rights of a father when the mother wants to have an abortion? Husband does not need to consent or even be notified; similarly, if she does not want to have an abortion, he cannot force her (2) ROE v. WADE (1973): Held unconstitutional TX law forbidding a womans right to an abortion; the fundamental right to privacy can be restricted by the state only when it can show a compelling interest and when its regulations are narrowly drawn to express only the legitimate state interests at stake (a) Planned Parenthood of Central Mo. v. Danforth (1976): Mother must certify in writing that her consent was informed and voluntary (b) More elaborate consent statutes were struck down in Thornburgh v. American College of OBGYN (1986) and City of Akron v. Akron Center for Reproductive Health (1983) (c) Planned Parenthood Assn. v. Ashcroft (1983): Requiring presence of second physician during an abortion performed after viability (d) Webster v. Reproductive Health Service: (1989): States interest, if compelling after viability, is equally compelling prior to viability; but this did not abandon Roe v. Wade (e) Planned Parenthood of Southeastern PA v. Casey (1992): Roe misconceives the nature of the pregnant womans interest and in practice undervalues the states interest in potential life; only where the state imposes an undue burden on a womans ability to make the decision whether to abort does the power of the state reach into the heart of liberty protected by the Due Process Clause (abandoning the trimester approach of Roe) e) Medical Decision-Making about Family Members i) What are the relevant concerns that a state can have about control over the decision to either act affirmatively to terminate an individuals life or withholding life-prolonging medical treatment? (1) Concern that individual, if competent, was well-informed and consent was voluntary; this includes having valid reasons (2) Protect against abuses, where consent is given by individuals who do not have the individuals best interest in mind there may be inheritance issues by relatives that have impure motivations ii) GRACE PLAZA of GREAT NECK, INC. v. ELBAUM (1993) (where woman has a stroke and consequently is in a persistent vegetative state and fed through a gastronomy tube; her husband advised the plaintiff by letter that it was his wifes wish that she be allowed to die naturally should she fall into an irreversible vegetative state; and he requested the home to remove his wifes tube, but they refused without court approval; husband then refused to pay the bill): If the provider refuses to act, the burden of seeking legal protection is on the one seeking to discontinue treatment; only where there is clear and convincing evidence to establish the plaintiff wishes will action be taken; because the lower courts did not find bad faith on the part of the plaintiff, the husband is not excused from paying the bill iii) CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT of HEALTH (1990) (where young woman is in car accident, which caused her to lapse into a persistent vegetative state; her parents wish to terminate the artificial nutrition; Nancy had had an informal conversation with a friend about not ever wanting to be kept alive if she were in this condition): The parents have not met the clear and convincing standard of proof (to protect against cases of abuse) that the patient

FAMILY LAW OUTLINE would have wanted to die, and the court refuses to allow the parents to substitute their own judgment for their daughters (there is no guarantee that the two views would have been the same) (1) Stevens dissent: Meaning and completion of her life should be controlled by persons who have her best interests at heart not by state legislature concerned only with generic preservation of human life iv) Distinguish durable power of attorney and health care proxy: (1) Durable power of attorney makes financial decisions when the individual is incompetent (2) Health care proxy makes medical decisions when the individual is incompetent COMMON LAW MARRIAGE AND RIGHTS OF UNMARRIED COHABITANTS f) Common Law Marriage i) Only 11 states have common law marriage; two most populous common law states are PA and TX ii) The couple must live together consensually and have held itself out as being married iii) IN RE THE MARRIAGE OF WINEGARD (1977, Iowa) (where Sally and John enter in an antenuptial agreement, and some time later travel to Las Vegas for the purpose of getting married; when in LV, John decides against getting married, but on their return to Iowa, gives Sally a wedding band and claims that they are just as married as any couple; subsequently, he denies the validity of their marriage and his intent to be married to Sally): Court holds that it was necessary for petitioner to prove an intent and present agreement to be married by both parties with continuous cohabitation and public declaration that they were husband and wife and that Sally successfully proved these things, i.e. there can be no secret common law marriage (1) Note Staudenmayer v. Staudenmayer (1998), where the court denied a common law marriage where there parties failed to exchange words in the present tense expressing intent to be married iv) Uniform Marriage and Divorce Act 297(b): Parties to a prohibited marriage prohibited who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment v) Prevailing choice of law is that other states will recognize common law marriage, even if the state does not recognize common law marriage as arising in that state g) Unmarried Cohabitation i) What is the argument against differentiating between cohabitation and marriage? (1) The main reason the state has an interest is promoting marriage (2) State may have an interest in treating people who are not married as if they were married, e.g. marriage penalty for tax purposes (3) State also has interest in protecting a non-working partner because otherwise the state will ultimately have to pay welfare to unsupported partners ii) Can people contract out of cohabitation consequences? (1) Anti-palimony agreement, or cohabitation agreements, can prevent liability for alimony, support, or division of property (2) Could alternatively have an agreement in which partners make obligations contingent upon breaking (rather than specifying what they do not have to do) Putative spouse: One whose marriage is legally invalid but who has engaged in a marriage ceremony or solemnization on the good faith belief in the validity of the marriage; the theory on which she could collect is her entitlement to a share in the property accumulated by the family unit during marriage (3) SPEARMAN v. SPEARMAN (1973, 5th Cir.) (where decedent had been married twice, though the first does not appeared to have been dissolved before the second occurred; both women claim to be the widow for purposes of the life insurance policy): Court holds that the first wife qualified as the widow

FAMILY LAW OUTLINE because the second wife could not rebut the presumption that the first marriage was never dissolved; further, the second wife does not qualify as a putative spouse because she could not meet the requirement that the marriage was entered into in good faith (a) To show whether the first or second marriage is valid in California: (i) A presumption arises in favor of the second marriage; presumption is rebuttable by the first wifes establishing the continuing validity of her marriage (ii) Unless the second wife can then establish that the marriage had been dissolved, the first wife qualifies as lawful widow (b) What kind of evidence is required to rebut the presumption of marriage? (i) The presumption of validity is on the second wife, so the first wife initially bears the burden of showing that the marriage persisted (ii) Next, the second wife may rebut by showing that the marriage terminated; if she cannot do such, the first wife is the widow The Legal Position of Unmarried Cohabitants (4) MARVIN v. MARVIN (1976, CA) (where plaintiff and defendant entered into an oral agreement whereby they both agreed to combine their efforts and earnings and would share equally any and all property accumulated as a result; also, they agreed to hold themselves out as husband and wife and plaintiff assumed the duties of a housewife; defendant forced plaintiff out some years later, and plaintiff wants declaratory relief and for a constructive trust comprised on of the property acquired during the relationship): A nonmarital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of a monetary reward; there is no bar to contracting between nonmarital couples, except where sex is used as consideration (though presence of sexual relationship does not diminish contract) (5) HEWITT v. HEWITT (1979, IL) (where issue is whether plaintiff, who lived in a family-like relationship with the defendant and bore three children to him, may recover from him an equal share of the profits and properties accumulated by the parties during the period): Plaintiffs claims are unenforceable because they contravene the public policy disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants iii) Meretricious relationship: Stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist; factors include continuing cohabitation, duration of relationship, purpose of relationship, pooling of resources and services for joint projects, intent of parties; this is unique to Washington courts (e.g. meretricious relates to prostitution in CA) (1) CONNELL v. FRANCISCO (1995, WA): A trial court may not distribute property acquired by each party prior to the relationship at the termination of a meretricious relationship; distribution is limited only to the property acquired during the relationship, despite that Washington law allows all property acquired by either spouse to equitable division when the parties divorce (i.e. only a division of community property, not of separate property) h) Domestic Partnerships i) ALI Principles on Domestic Partnership: If you live together and have same principle residence for three years or maintain household with common child for two years, you are married (1) Renaming alimony as compensatory payments on theory that dependent partner is more likely to have made contributions upfront and therefore should be entitled to compensation once marriage ends

FAMILY LAW OUTLINE (a) Note perception that alimony is perceived as an entitlement to continue standard of living (2) ALI 6.02: Allocating property and financial losses at termination of relationship of domestic partners (a) Primary objective is fair distribution of the economic gains and losses (b) Secondary objective is to keep dependent individual off welfare (i) Fairness vis--vis society requires that individuals closely implicated in the economic circumstances of persons with whom they lived as domestic partners assume some economic responsibility for those circumstances (c) Objective is not to encourage parties to enter nonmarital relationship as alternative to marriage (3) Domestic partners as being of the same or different sex, and if you are married you can still be someone elses domestic partner; no particular exclusion for incestuous relationships (4) Legal rights and obligations may arise from the conduct of parties with respect to one another, even though they have created no formal document or agreement setting forth such an undertaking (5) Provides default rules that are in effect a contract imposed by law on parties who do not make a different agreement (6) Generally, ALI says you divide marital property (property acquired during the domestic partnership other than by gift or bequest) upon dissolution of a domestic partnership. (a) ALI provides for a gradual re-characterization of separate property over time ( 4.12), and, therefore, subject to dissolution upon marriage because, over time, spouses come to assume that the separate property of another spouse is going to be available to retirement, medical expense or that the income of that property is going to be available for common purposes; based on the assumed reliance of the other spouse on the availability of that property (7) ALI does allow a donor or testator to provide that property shall not be subject to re-characterization ii) Domestic partnership ordinances (1) Ordinances are essentially opt-in provisions, signed and formalized by a clerk (2) DPOs govern during the relationship, while ALI governs termination of the relationship (3) Only three states Hawaii, Vermont and California have domestic partnership statutes, and Vermont also provides for civil unions (4) 36 states have statutes opposed to the recognition of domestic partnerships (5) Congress, in the Defense of Marriage Act, allows states to deny full faith and credit to states that recognize domestic partnerships/civil unions; many believe this to be unconstitutional (a) Note that Hawaii was going to legalize same-sex marriages, upon which couples would flock to Hawaii to marry and then claim full faith and credit and get benefits, but Federal intervenes and limits the federal definition of married couple to heterosexual (i.e. cannot be a couple for federal income tax) but that states can decide for themselves (b) Does Congress have a sufficient interest in preventing same-sex couples from getting benefits for their partners? Does it have a legitimate concern that other states will be forced to recognize same-sex marriages? (i) Consider conflict of law and inconsistent treatment of citizens state would be forced to treat same-sex couples from another state different from same-sex couples in that state Domestic Partners Rights and Duties in Relation to Third Parties (6) BRASCHI v. STAHL ASSOCIATES COMPANY (1989, NY) (where two men cohabited for 10 years and were referred to as spouses; upon death of the tenant of record, the other partner wished to remain but was evicted; he sought protection under a section NY law that protected from eviction family

FAMILY LAW OUTLINE members of the tenant of record, but failed to define family member): Court holds that the case must be remanded to assess a number of factors to contribute to the establishment that appellant is a family member (a) Such factors include exclusivity and longevity of relationship, level of emotion and financial commitment, manner in which parties have conducted everyday lives and held themselves out to society, and reliance upon one another for daily family services (b) Since the partners could not marry, it is unfair to deny them the benefit of being treated as a member of the family (all of the indicia of a family were there, i.e. functional families) 2) ENTERING MARRIAGE a) Mutual consent + Eligibility + Process = Marriage i) Ordinarily, parties must secure a license; many states impose a minimum waiting period between issuance of license and marriage ceremony (which can be waived, e.g. for pregnancy) ii) Requirements for medical examinations to check for venereal diseases and AIDS iii) Ceremony is required, where common law marriage is not allowed or is not met iv) Courts rarely invalidate marriages for failure to satisfy formal requirements b) Void vs. voidable marriage i) A voidable marriage has at least potential validity; it is valid unless its nullity has been declared ii) A void marriage requires no declaration of invalidity because it is already invalid, and its validity can never be claimed by either party; it can never become valid c) The Agreement to Marry i) Content of the Agreement: LUTWAK v. UNITED STATES (1952, U.S.) (where three individuals allegedly committed a conspiracy in taking advantage of the War Brides Act, which allowed alien spouses of honorably discharged veterans of WWII to legally enter the country, when each went through legally valid marriages with American citizens in France for the sole purpose of entering the United States; none of the three marriages were ever consummated or intended to be): Court held that if the subjects agree to a marriage only for the sake of representing it as such with the purpose to deceive, they have never really agreed to be married at all (1) Traditional choice of law rule is that a marriage that is valid or celebrated somewhere it is valid everywhere; but court says that this is irrelevant, because they never actually consented to be married ii) Capacity to Agree: EDMUNDS v. EDWARDS (1980, NE) (where the guardian of a mildly mentally retarded individual, Harold, brought sought to annul Harolds marriage on the grounds that Harold did not have sufficient mental capacity to consent): The Court found that the District Courts findings were very mixed and inconclusive, but nonetheless the District Courts conclusion that Harold did have the capacity to consent is compelling because it had the opportunity to observe witnesses and Harold in their testimony d) Fraud and Duress i) The Essentials Doctrine: WOLFE v. WOLFE (1979, IL) (where the women tells the man that her ex-husband is dead in order to make her a widower and not a divorcee so that the man may marry her in compliance with the Roman Catholic religion; she, however, fabricated the death certificate, knowing that her husband was in fact still alive): Court holds that the marriage may be annulled when the nature of the fraud itself affects the essentials of the marriage (a higher standard than an ordinary contract); here, marriage would not have occurred except for the commission of the fraud, so the marriage can be annulled ii) Disappointment: REYNOLDS v. REYNOLDS (1862, MA): It would tend to defeat the creation of a permanence of family relation if error or disappointment in personal qualities or character was allowed to be the basis of proceedings on which to

FAMILY LAW OUTLINE found a dissolution of the marriage tie; persons who rely on representations from a prospective spouse should bear the consequences of reliance (no relief for the results of a blind credulity) iii) Breach of promise: In MA in 1818, Chief Justice Parker said that there can be nothing more worthy of compensation than a violation of the marriage contract; but of states have barred breach of promise actions on the theory that they may be used for blackmail or other wrongful purposes e) Substantive Restrictions on Marrying i) Note Loving v. Virginia, where state imposes restrictions on interracial couples to marry, but Supreme Court rules unconstitutional ii) Federal Impositions: Federal government does not undertake to regulate marriage directly, but can influence marriage indirectly by imposing tax penalties/benefits (depending on income of individual spouses), distribution of federal pensions (e.g. Social Security) iii) Unsatisfied Support Orders: ZABLOCKI v. REDHAIL (1978, U.S.) (considering the constitutionality of a statute which bars marriage by individuals having unsatisfied support orders): Court holds that, as the right of marriage is a fundamental right of all individuals and therefore subject to strict scrutiny, the state must have sufficiently important state interests and is closely tailored to effectuate only those interests, per the Equal Protection Clause; here, the state does not present such reasons (1) To what extent is a burden an interference with the fundamental right to marry? Contrast with Califano v. Jobst (1977), where court upheld a statute that provided for termination of a dependent childs benefits upon marriage to an individual not entitled in his or her own right to benefits under the Act; the court believed this was not an impediment to marriage iv) How might marriage be disadvantageous from a financial standpoint? (1) Income tax penalties (2) Private party imposes a burden, e.g. in community property states, creditor can go after community property interest of debtor spouse in earnings of other spouse; this result can be avoided if earning spouse follows specified procedures to keep separate his earnings, otherwise it flows to a creditor (3) Nepotism, e.g. where en employer will not employ spouses Particular Restrictions on Marriage v) Monogamy: POTTER v. MURRAY CITY (1985, 10th Cir.) (where court denied a challenge to UTs proscription against polygamy): Court holds that Reynolds v. United States, holding that prohibition of polygamy is not a violation of religious freedom, is controlling; further, neither his right to privacy, nor the argument that anti-polygamy laws are in disuse, lends support to plaintiffs claim (1) Reynolds rejects argument that congressional prohibition on polygamy was an interference with freedom of religion - - - religious freedom does mean that an individual can so something so contrary to our cultural traditions and so odious to our beliefs as polygamy vi) Relationship and Incest: STATE v. SHARON H. (1981, DE) (where half-brother and half-sister marry, claiming that their being adopted into and raised by separate families nullifies their relationship as brother and sister, of which the marriage between is expressly prohibited and criminally penalized by DE statute): Court holds that the legislature did not intend this result, i.e. that adoption destroys all ties between a child and his or her relatives (1) More challenging case is one where there is no blood relationship between the spouses, e.g. step-brother and step-sister, where argument against is not based on eugenics vii) Different Sexes: Defense of Marriage Act does not require states to recognize anything other than a heterosexual marriage



(1) BAKER v. VERMONT (1999, VT) (where same-sex couples petition the state for
the same benefits and protections that different-sex couples obtain through marriage): None of the states interests provides a reasonable and just basis for the continued exclusion of same-sex couples from benefits incident to a civil marriage license under VT law; the remedy given by the court is not permission to marry, but an instruction to the VT legislature to enact the appropriate remedy, whether it is in the form of domestic partnership agreement or civil union (a) State advances following theories for disallowing gay unions: (i) Interest in procreation; but note that not all straight couples do procreate (over-inclusive) and some gay couples do (under-inclusive) (ii) Reliance on technology for gay couples to procreate; but note that some straight couples also need such technology (iii) Issue of childrearing; but note VTs 1996 law removing all prior legal barriers to adoption of children by same-sex couples; also, many psychologists disagree with notion that opposite-sex couples are not solely appropriate child-rearers (iv) Uniformity with other jurisdictions (v) Long history of official intolerance of intimate same-sex relationships; but history cannot serve as sufficient basis for animus against group; recent legislation undermines such history (b) Legislatures response to courts ruling that denial of benefits to same-sex partners is unconstitutional is to allow civil unions, which treated same-sex couples as having the same obligations and benefits as a married couple (c) Must couple return to VT if it wants a termination of the union? Yes, says a CT judge (2) CA gives same sex couples to make certain provisions with respect to visitation in hospital and control over medical decisions to same sex couples who register as such, but there are no legal rights and obligations viii) Age: IN RE BARBARA HAVEN (1953, PA) (where a 14-year old girl petitioned the state, with the permission of her father, to marry a 22-year old boy): Court disallows the marriage, noting that the legislature must have realized that there is more to marriage than physical and mental development, i.e. mature understanding and judgment and mature emotional stability; only compelling circumstances that render the couple extraordinary will permit the court to make an exception to the law that both parties must be 16 years of age Conflict of Laws: IN RE MAYS ESTATE (1953, NY) (where a man married his niece in a traditional Jewish ceremony and under RI law, which allowed the marriage; but the couple shortly returned and lived for 32 years as man and wife in NY, which did not allow the marriage): Such marriage, where solemnized and in accord with Jewish faith in a state which recognized the union, was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus not within inhibitions of natural law (1) If marriage was valid where celebrated, the usual rule is that it will be recognized in other states, except where the marriage sufficiently offends the law of the state of the domicile; here, NY law specifically states that a marriage is incestuous and void between an uncle and niece or aunt and nephew






DIVORCE GROUNDS AND PROCEDURES Grounds for Annulment or Divorce ix) Consequences for annulment are very different in different states (1) NY takes a view that annulment will have the same economic consequences, i.e. division of property, as divorce; whereas, in CA, an annulment is a finding that there was never a marriage, so there is no division of community property in CA (2) Note Catholic Churchs procedure for annulment: Determination that there is a religious annulment is a determination for the church, but there are no civil law consequences, so a divorce may have to be obtained in addition; if there are grounds for annulment recognized by the state, the state may grant an annulment x) Even with change from fault to no-fault, it is unrealistic to say that the solution to an unhappy marriage is to exit; e.g. in NY, there is no immediate exit on no-fault grounds unless by mutual consent, beginning with a separation agreement (for 1 year), followed by a judicially-declared conversion divorce xi) In most states, irreconcilable differences leading to an irretrievably broken marriage will qualify for a no-fault divorce; UMDA requires that couples be separated for 180 days or there be serious marital discord adversely affecting one or both of the parties Divorce Procedure Under Fault System xii) Only the husband and wife are recognized as parties to the divorce proceeding xiii) Traditional statutes required that one spouse have committed particular forms of marital misconduct but also that plaintiff not have connived at or condoned the offense xiv) NY still employs a fault-system, i.e. does not recognize no-fault divorce, whereas CA has gone to no-fault entirely, claiming that conduct of parties is completely inadmissible xv) Some states, e.g. MA, have fault and no-fault options, which is chosen by the filer at the time of filing; some procedural advantages to a no-fault (i.e. may be quicker, though fault system may take account of fault in division of property) xvi) Fault-divorce often required corroboration by the parties in an effort to show that there were grounds, when actually there was no fault; wife could often use this as bargaining power, i.e. ask for a price in order to cooperate with husbands desire for a divorce xvii) State is perceived to have an interest in preserving a marriage and a divorce; parties, in addition to agreeing to divorce, must also satisfy the states requirement (1) Legislating morality (2) Interest of children (though statistics on effects are inconclusive) (3) Avoiding a single parents dependence on the state Adoption of No-Fault Divorce: Either spouse at any time can get a divorce with no questions asked xviii) Use of perjury and collusive divorce led the system to change to a no-fault system xix) Generally available (1) Except in NY and where religious faith forbids (2) Some states, like CA, claim that no-fault is the only way to get a divorce xx) Concern for preserving marriages still reflected in various delay proceedings in hope of reconciliation, such as treatment as an interlocutory degree for six months, cooling off periods prior to trial, and couples counseling (1) Note decree nisi in MA: when you get a divorce decree, the divorce will not take place for 3 months (in hopes of reconciliation); in other states, it is as much as 6 months


FAMILY LAW OUTLINE What is sufficient to establish a no-fault divorce? Generally, there is a requirement of proof that the marriage is beyond reconciliation, though states differ DESROCHERS v. DESROCHERS (1975, NH) (where parties separated, and wife files for divorce; after the wife bore a baby girl, the husband claims that he loved his wife and did not want a divorce, while the wife claimed she no longer loved her husband): Whether a breakdown of marriage is irremediable is to be determined by the trial court based on factual testimony (with limits on the inquiry); here, the separation of the couple for 2 years and wifes persistence in seeking a divorce is sufficient to find that the marriage is irremediably broken down (a) Contrast with In re Marriage of Mitchell (MO): statute that authorizes a divorce on the ground that a marriage is irretrievably broken only when both parties agree xxi) Should there be an exception to findings of discord for alcoholism? HAGERTY v. HAGERTY (1979, MN) (where the husband is an alcoholic and has moved out; while he wants a divorce, the wife does not): Irretrievable breakdown can be shown by evidence of only one partys belief that it is the existing state, particularly where the parties have been living apart; the court chooses not the grant the wifes request for an exception based on the husbands alcoholism and his inability to make a sound decision so as to avoid the slippery slope of tailoring an exception to each situation subsequently to arise Access to No-Fault Divorce: BODDIE v. CONNECTICUT (1971, U.S.) (where the couple, reliant on welfare, were deprived by the state of a divorce because they could not afford to bring the action): States refusal to admit this applicants to its courts, the sole means in CT of obtaining a divorce, on the basis that couple cannot afford the filing fee must be regarded as a denial of due process; none of the states interests prevention of frivolous suits, allocation of resources, balance between defendants right to notice and plaintiffs right to action is reasonable to override the due process right (1) The fundamental right in question here is the partys fundamental right to remarriage, for which there must be a divorce (2) Due process is implicated because the state has a monopoly on divorce, so they cannot make the dissolution contingent on a fee (3) Note that court does not give parties a right to counsel in a divorce proceeding here, though there may be judicial discretion to provide for the appointment of counsel Posture of No-Fault Divorce Procedure: Can there be a judgment by default? MANION v. MANION (1976, NJ) (where issue is whether the court can grant a summary judgment motion for divorce supported solely by the submission of affidavits, i.e. there is no testimony about the cause(s) for divorce): To satisfy the states interest in the preservation and maintenance of marriage, it is necessary that the trial court have the opportunity to hear the direct examination of the non-defaulting party and to have the party answer the courts questions Constitutionality of No-Fault Divorce: MARRIAGE of ROBERT L. WALTON AND NORMA J. WALTON (1972) (where the wife contends that dissolution of her marriage on the ground of irreconcilable differences constitutes an unconstitutional impairment of her contract rights): Court holds that the wifes argument for unconstitutionality is untenable because (1) Marriage is more than a civil contract and not the same contract referred to in the Constitution; and (2) a statutory change in grounds for divorce would not constitute an unconstitutional impairment Divorce Reform xxii) Note legislators in a number of states proposing bills to reintroduce fault grounds or lengthier waiting periods, in general or where only one spouse seeks divorce xxiii) Some states, such as LA and AZ, have instituted covenant marriages, where the couple has the option of choosing between a regular marriage, allowing a nofault divorce, and a covenant marriage, in which the parties formally agree that the covenant is for life and will only seek dissolution when there has been a complete and total breach of the marital covenant commitment

FAMILY LAW OUTLINE (1) Though in order to escape the consequences, individual can simply move to a state that does not recognize; note that the state of divorce merely determines that spouses are no longer married to each other, but spouse can resort to his own state for consequences (see jurisdiction) Abandonment: WILLIAM DIEMER v. GILBERTE DIEMER (1960, New York) (where wife repudiates the validity of her marriage and refuses to have sexual relations with her husband until he submits to remarriage in a church of her religious faith; husband seeks a decree of separation): Court grants decree of separation on grounds that wife had no legal cause to refuse sexual relations, and without such, it constitutes abandonment i) Note that this judicial separation could eventually result in conversion divorce


3) THE ECONOMIC CONSEQUENCES OF DIVORCE: PROPERTY DIVISION AND SPOUSAL SUPPORT a) Attorneys Fees i) FLORIDA BAR v. ROSEMARY W. FURMAN (1984) (where a secretary employed for the purpose of transcription was charged with illicitly giving legal advice, despite that she was not a licensed practitioner, on the issues of child custody, divorce settlements, and the like, and further in contempt of an order enjoining her from engaging in such practice) (1) Admission to the bar allows the state to protect the profession from encroachers who are not licensed ii) States continue to analyze the award of attorneys fees as an alimony issue, as they are characterized under the duty to pay necessaries iii) Fees are often awarded based on a number of factors, including: time and effort required, nature of proceedings (including novelty of issues involve), experience/reputation of attorney, customary fee associated, amounts involved, results obtained, and financial circumstances of parties Note on Divorce Mediation iv) Lack of uniform standards lead the process to be inconsistent from state to state and from mediator to mediator v) Consider conflicts of interest, use of nonlawyers as mediators, teaming up of nonlawyers with lawyers, large expense to parties, exacerbation of imbalances between parties and mediators attempt to compensate, use of independent counsel, potential for failure (fragility of issues, revelation of strategy) Property Division at Divorce, In General vi) Upon dissolution of the marriage, the court looks to equitably distribute the property: (1) Classification of assets as marital or separate (varies from state-to-state) (a) Generally, separate property includes: (i) Property acquired by gift, bequest, devise, or descent (ii) Property acquired in exchange for separate property (iii) Increase in value (appreciation) of separate property (iv) Property exclude by a valid agreement between the parties (v) Property acquired by a spouse after legal separation (b) CA treats income during marriage from separate property as separate property, while NY and TX treat it as marital property (i) E.g. Consider a business owned by one spouse prior to the marriage by the end of the marriage, this begins to look like community property; the wife is at home taking care of children, while husband works 1. NY is willing to treat contribution of homemaking spouse as contribution to business (ii) But how do you measure the increase in the value of the asset during the time of the marriage? 1. Could take a 50/50 split, i.e. that all increase is marital property

FAMILY LAW OUTLINE 2. Could allocate excess of appreciation over income from past investment, i.e. giving community value over past investment rate 3. Could look at market rates of compensation for his type of position (c) CA treats property elsewhere/acquired elsewhere as quasi-community property (see page 1) (d) Courts have by varying degrees tended to treat inheritances and gifts not subject to equitable distribution (e) ALI claims that separate property gradually becomes marital property, i.e. converting separate into marital property (see page 16) (2) Valuing the assets that are subject to distribution (3) Deciding on a distribution that is fair and equitable (a) Except states CA, NM, and LA where there is always a 50/50 split (b) In general, states allow considerable latitude in equitable distribution of property; reviewing courts tend to accept the trial courts determination with respect to equitable distribution (c) In TX and NY, separate property is not divisible upon divorce; in WA, separate property is divisible upon divorce (d) In MA, everything marital and separate property is up for grabs; but MA judges are often influenced by the sources of property when deciding upon equitable distribution (e) A number of statutes enumerate the factors to be taken into account when determining the equitable division of property; there is often a garbage factor, under which the court can consider anything (f) ALI reigns in a lot of discretion in equitable division, but does have a proviso allowing the court to avoid substantial injustice The Types of Distribution (distinguishable by amount of discretion given to judge) Title-Based Distribution: Courts have little or no express discretion over property division, for the governing principle is that property is awarded to the spouses as they owned it during the marriage (g) In common law states, spouse who owns the asset would receive it at divorce, subject to any claims of the other spouse based on equitable ownership principles (h) In community property states, separate property goes to the owner and community property is divided equally (4) Pure Equitable Distribution: Courts have complete discretion to divide all the property of both spouses as is just and proper or through some equivalent formula (as in MA) (5) Marital Property Systems: Courts have more discretion than in TBD, but less than in PED; most commonly used in this country (a) In most community property states, equitable rather than equal division of the property is mandated; do not permit equitable division of separate property (except WA), but these states may treat as quasi-community property, subject to such division, property acquired elsewhere during marriage that would not have been the separate property of the acquiring spouse if it had been acquired in that state (b) Deferred marital property systems hold that as long as the marriage lasts, each spouse owns and manages assets that he or she brings into or acquires during the marriage, but when the marriage ends, the assets are shared as if they had been acquired in a community property state vii) Uniform Marriage and Divorce Act 307 (1) Alternative A (for common law): Court will equitably apportion the property and assets belonging to either or both however and whenever acquired, without consideration of marital misconduct; in apportioning, the court shall consider duration of marriage, prior marriage, prenuptial agreements, age, health, occupations, income, vocational skills/employability, estate, liabilities, needs/custodial provisions, maintenance, opportunity for

FAMILY LAW OUTLINE future income; court will also consider contribution or dissipation of each party to value of respective estates, and value of either as a homemaker (2) Alternative B (for community property): Court will assign separate property to owning spouse; it shall divide community property, without regard to marital misconduct, in just proportions after considering: contribution of each to acquisition of property, value of property set apart to each spouse, duration of marriage, economic circumstances of each party viii) Marital Fault and Equitable Division: About of states list marital fault as a factor to be considered in property division, and another strictly exclude it; most courts do not give substantial if any weight to marital misconduct, but may give more to economic misconduct, where one party has engaged in deliberate misappropriation of community property Economic misconduct as a factor in the division of property on divorce, including gambling, gifts to a lover, mismanagement of money, etc. ALI trend has been to consider economic misconduct only during the waning days of the marriage and would count negligent/careless losses only if they occur after filing for dissolution The one form of economic behavior ALI would take into account is transfers within a brief period that otherwise deplete the amount of property for dissolution purposes (1) Physical Violence and Adultery (a) In MA, one of the 13 statutory factors in determining division of property upon no-fault is behavior of spouse during marriage, though most judges seem concerned only with adultery or physical violence (b) ALI says that physical violence should not be a factor because tort system compensates (c) Westfall believes that adultery should be taken into account and that fixed rules are preferable to a lot of judicial discretion because judges are so disparate in their views (d) ALI addresses question of whether adultery was caused by the emotional insensitivity of the other spouse (e) Before it became a no-fault state, CA weighed and compared mistakes on both sides (2) ALI allows two factors to affect the division: child care and care of third parties Characterization of Gifts/Inheritances as Separate ix) Gifts (1) OBRIEN v. OBRIEN (1998, NC) (where wife had inherited a large sum of money and invested it; in addition, the wife and husband together received gifts totaling $40,000 from the wifes Aunt Mabel; plaintiff contends that the trial court erred in classifying the investment account and gifts from Aunt Mabel as defendants separate property rather than marital property; he bases his argument for a share in the investment account on three theories: (1) marital funds were commingled with inherited funds, i.e. transmutation; (2) defendant failed to trace the marital funds deposited into investment account; and (3) plaintiff actively participated in managing the investment account by making decisions that led to its appreciation): Court finds that the trial court properly decided that the investment account was separate property because (1) it has never subscribed to the transmutation theory; (2) the defendant offered sufficient tracing in showing that a substantial amount more was taken from the account for marital purposes than was put in; and (3) the activities claimed to constitute substantial were nothing more than the purview of ordinary and usual spousal duties; further, Aunt Mabel intended for the plaintiff to be nothing more than a conduit for her gift to defendant, i.e. did not intend for the money to benefit him only and directly (a) Active appreciation of an investment account includes consideration of: contribution of substantial services; direct correlation between services and appreciation; amount of appreciation; performance of services during marriage; value of services, lack of compensation, or inadequate compensation

FAMILY LAW OUTLINE (i) Here, the husband regularly spoke to the broker and gave his wife investment advice, which did not suffice to meet the standard for active appreciation x) Inheritance (1) IN THE MATTER of the MARRIAGE of PIERSON (1982, OR) (where wife, upon divorce, claims that the trial court should have awarded her equal shares in the marital assets, exclusive of her inheritance, where such inheritance was awarded after the separation of the parties): The wife should retain her inheritance, as she acquired it free from any contribution of the husband (a) Here, the court expresses concern in liquidating family home, as value will inevitably be lost in a liquidation sale (b) Modern property division seeks to minimize post-divorce contacts between the spouses (2) Consider possible relevance of anticipated inheritance of one of the spouses in MA, this is considered (e.g. the will of a parent is a factor in the division of property) (a) Note the will is not static and final until the testator actually dies (b) But the individual could have a vested interest in an irrevocable trust (i.e. not an expectancy, it is very certain that the individual will eventually have the trust) (c) One of the reasons people put money in a trust is to protect it from spouses and creditors; if the person declares bankruptcy, the trust is not reachable, though the individual will be responsible for any support he has been assigned to pay ALI Principles on Marital and Separate Property Principles 4.05 Enhancement of Separate Property by Marital Labor: A portion of any increase in the value of separate property is marital property whenever either spouse has devoted substantial time during marriage to the propertys management or preservation Marital labor is a marital asset; to the extent that an asset is appreciated by marital labor, the increase is marital property; the increase in the value of the property will then be divided into portions that are attributable to the marriage and separate property (d) Note that difficulty with determining the value of certain assets at marriage (e) Also, what are assets of relative safety requiring little management (against which the appreciation of the marital property will be measured)? It may be unfair to compare with a treasury bond or index mutual fund, which will be said to be more stable (3) Requirement of substantial labor has a different meaning between the spouse who owns the property and the spouse who labors on property she does not own (a) If it is ones own property, there is the assumption that the individual will perform general managerial and maintenance work for upkeep out of more or less necessity, whereas the spouse who labors on property that does not belong to her makes a more voluntary effort to aid in the upkeep (b) Where spouse inherits shares and holds them throughout marriage, there is no substantial labor, and the shares are separate property; but how do we know that the holding spouse did not actually invest time and effort in her decision to hold? xi) Principles 4.12 Recharacterization of Separate Property as Marital Property at the Dissolution of Long-Term Marriage: In marriages that exceed a minimum duration specified in a rule of statewide application, a portion of the separate property that each spouse held at a time of their marriage should be recharacterized at dissolution as marital property, according to a statewide formula, specifying at which point 100% is marital property

FAMILY LAW OUTLINE (1) Any appreciation in value of property that would be separate property is treated as having been acquired at the same time as the underlying asset, and any asset acquired in exchange for separate property is treated as having been acquired as of the time its predecessor assets was acquired (2) Can be avoided for gifts/inheritances if specified by written notice within short period after acquisition or if specified by donors/testators by will or deed (3) Will not apply if preservation of propertys separate character is necessary to avoid substantial injustice, e.g. family heirloom, taking money of an individual who is left the money to take care of a disabled individual, inheritance received during divorce proceedings (4) Note misleading nature of the statement that if the marriage ends with the death of the wealthier spouse, the common law has traditionally provided the remedy of a forced share for survivors otherwise not provided for (5) Consider spousal support and ALIs method of determining at divorce; ALI bases on differences in anticipated income of spouses but would increase spousal support if dependent spouse has responsibility for children of the marriage or her own children if they live with her b) Statutory Factors in Considering Equitable Distribution of Property i) NY considers: (1) Income and property of each party at the time of marriage and at divorce (a) Note that NY does not divide property that you brought into the marriage; so the court is really trying to find out how the individual fared from the marriage (2) Duration of marriage, age and health of parties (3) Any award of maintenance (4) Probable future financial circumstances of each party (5) Wasteful dissipation of income by either spouse (6) Has 12 factors + a garbage factor ii) ALI suggests that fixed rules do suggest settlement because it creates a degree of certainty, which will allow parties to bargain in the shadow of law c) Modification of Property Division: SAHIN v. SAHIN (2001) (where husband and wife divorced, each taking equitable share of the property, which included wifes share in the value of the husbands business, which she sought in a specific cash payment rather than a percentage of the stock; three years subsequent, the husbands business was sold to another company for a huge sum of money; wife filed motion to modify the division of property, asserting that there were compelling and exceptional circumstances necessitating review; specifically, she asserted that the discrepancy in what she was paid three years earlier and the value of the sale were attributable to the husbands misrepresentations and omissions pertaining to his companys financial outlook during divorce proceedings): Wifes motion is denied, as she did not give reasons for justifying relief after the expiration of time limitation, she did not prove fraud on the court, and failed to show extraordinary circumstances Division of Debt: Generally, each spouses separate property is liable for his debts, and marital property is liable for marital debts i) Other options (1) Equitable division of all (2) Divide debts proportionately to division of assets (3) Total netting out, i.e. from the total value of the divisible assets subtract the total amount of divisible debts and divide remainder (4) Netting out of specific assets, i.e. when specifically encumbered Spousal Support at Divorce ii) A movement in the direction of limited term alimony (1) To allow a clean break between the spouses; the less contact post-divorce, the better (2) To encourage dependent spouses to get back into the workplace

FAMILY LAW OUTLINE (3) UMDA is in favor of clean break theory and provides for maintenance only if spouse is unable to support herself through appropriate employment or is custodian of a child, making it difficult for her to work iii) But note that there has been somewhat of a movement toward longer-term alimony payments because of rehabilitation arguments (1) Rehabilitation may take a very long time or may never fully happen at all (2) And it is difficult to quantify in each case, because much is dependent upon the work of the market, school admissions (and other factors not within the individuals control) (3) TURNER v. TURNER (1978, NJ): Considering the substantial sums that each party will receive via equitable distribution, earning ability of each, and necessity that husband incurs because of his disability, the Court awards $50/week for a limited period to the wife (until she can graduate and support herself) iv) Under ALI, childcare or care of stepchildren is a basis for augmenting the amount that is payable by the obligor to compensate for the difference in expected postdivorce income; however, these are presumptive awards, and the court may depart from them to avoid substantial injustice v) What is the baseline? IN RE THE MARRIAGE of LaROCQUE (1987, WI): Lower court has abused its discretion in determining maintenance of such a low amount; the generally accepted baseline in determining maintenance is the marital standard of living (though this is a problem because two separate households cannot be maintained on amount that one household could have been maintained); sets forth a list of 9 factors and a garbage factor to consider in determining amount of alimony (1) What other options for baseline? (a) Need-based standard (b) Standard before marriage (c) Parity between two households vi) Subsequently acquired obligations: Do not diminish previous obligations; but previously obligated payments are deducted from income when determining subsequent support vii) Matrimonial Fault: CHALMERS v. CHALMERS (1974, NJ): Matrimonial fault will not be taken into account when determining that extent of alimony payments d) ALI Principles on Alimony ALI 5.02 Objective: The objective is to allocate financial losses that arise at the dissolution of marriage according to equitable principles that are consistent and predictable in application (1) Losses are allocated without regard to marital misconduct (though tort actions can be brought) (2) Equitable principles of loss recognition and allocation should take into account all of the following: (a) Loss of earning capacity arising from a spouses disproportionate share of caretaking responsibilities for children and others to which the spouses have a moral obligation (b) Losses that arise from the changes of life opportunities and expectations cause by adjustments individuals ordinarily make over the course of long marital relationship (c) Disparities in the financial impact of a short marital relationship on the spouses post-divorce lives, as compared to their situation prior to divorce, i.e. baseline of premarital standard for short-term marriages (d) The primacy of the income earners claim to benefit from the fruits of his or her own labor (2) Characterized as compensation for loss rather than relief of need (3) Legally enforced obligations to a former spouse can be no greater than to ones children

FAMILY LAW OUTLINE ALI 5.03 Compensatory Awards: Compensatory awards should allocate equitably between spouses certain financial losses that either or both may incur in dissolution Types of compensable losses: Marriage of significant duration (loss in living standard by spouse with less wealth/lower earning capacity) (a) Earning capacity loss incurred during marriage and continuing postdissolution and arising from spouses disproportionate share of the care of the marital children or children of either spouse during marriage (b) Earning-capacity loss incurred during marriage and continuing postdissolution, and arising from the care provided by one spouse to a sick, elderly, or disable third party, in fulfillment of a moral obligation of the other or both spouses (i) Burden is on the caretaker to show that the care was substantial and that it decreased her post-divorce earning power; but this does not mean that if mother-in-law lived in the house that the spouse gets a premium (4) Other compensable losses (combined value has maximum): (a) Loss either spouse incurs when the marriage is dissolved before that spouse realizes a fair return from his or her investment in the other spouses earning capacity (b) An unfairly disproportionate disparity between the spouses in their respective abilities to recover their premarital living standard after the dissolution of a short marriage (5) A spouse may qualify for more than one kind of compensatory award, but duplicate compensation should not be provided for any loss, and (a) The combined value of (2) and (3) cannot exceed the maximum (6) The ALI assumes it was the wife who assumed primary childcare and her income is much lower for that reason (does not matter what kind of mother she was) (a) Note on caretaking functions vs. parenting functions caretaking functions, where parent supervises and maintains childs interpersonal relationships, are the only functions that count; parenting functions, on the other hand, include maintenance of the house, etc. and do not count toward childcare (see more below) ALI 5.04 Compensation for Loss of Marital Living Standard: A person married to someone with significantly greater wealth or earning capacity is entitled to dissolution to compensation for a portion of the loss in the standard of living he or she would otherwise experience, when the marriage was of sufficient duration that equity requires that some portion of the loss be treated as the spouses joint responsibility (7) Entitlement to an award should be determined by a rule of statewide application under which a presumption of entitlement arises in marriages of specified duration and spousal-income disparity (8) The value of the award should be determined by a rule of statewide application that sets a presumptive award of periodic payments calculated by applying a specified percentage to the difference between the incomes the spouses are expected to have after dissolution (durational factor) (9) The presumptions established should govern unless there are facts establishing that the presumptions application to the case before the court would yield a substantial injustice (10) Periodic or lump-sum payments (11) To determine duration of marriage, court should include any period immediately preceding during which the parties lived together as domestic partners e) Divorce and New Property: Included in new property is pensions/employment benefits, goodwill in small businesses, professional licenses, and educational degrees i) The difficulty lies in valuing new property, given that it generally arrives in a string of payments; to the extent that calculations take into account future

FAMILY LAW OUTLINE uncertainties, they are based on actuarial assumptions for the hypothetical person ii) Pensions (1) At the beginning of a marriage, the major asset is the prospective earning power; at the end of a marriage, the major asset is the prospective pension benefits that will vest (2) Types (a) Defined contribution plan: each employee has a separate account of employee benefits, the amount of which will depend on how much is in the account through contributions, interest earned (i) Harvard has a combined contribution account, which means that Harvard contributes each month and employee determines how it is invested with some limitations (ii) Many other kinds of benefits are marital property, including profitsharing plans and stock bonus plan (b) Defined benefit plan: an employees benefits are determined on the basis of a formula, usually based on years of service and salary; less easy to quantify (i) A defined benefit retirement plan is less easy to quantify (3) LAING v. LAING (1987, Alaska): The court recognizes non-vested pension rights as a marital asset because the non-employees contribution to the pension asset is exactly the same whether the pension is labeled as an expectancy or a contingent future interest; however, the reserved jurisdiction approach is adopted over the present value approach because of the courts interest in protecting the employee spouse in the event that the entire sum of benefits is forfeited (i.e. termination or death prior to vesting) (a) Approaches to determining division of new pension benefits (i) Present value approach (rejected here): Court determines the present value of the employee spouses right to receive payments from the pension in the future, awards those rights to the employee, and awards the non-employee spouse other marital property in lie of his or her share of the pension (ii) Reserved jurisdiction approach: Spouse receives a fractional share of each pension payment as it comes due (4) In jurisdictions that permit only marital property to be divided at divorce, where a pension earned in part before marriage and in part during marriage, most courts use the time rule to determine (which depends upon the number of years the pension accrued during the marriage and the total number of years that the pension accrued), upheld in In re Marriage of Hunt (1995, CO) because of the commingling effort during the marriage that led to the increase of the value of future benefit (a) The alternative is to use the accrual method (5) For plans governed by ERISA, employees have the option of receiving their benefits in the form of joint and survivor annuity, which provides for periodic payments to the retired employee and after the employees death to the surviving spouse (6) Federal and state statutes now protect divorced spouses against loss of health insurance coverage; COBRA requires that health insurance plans permit divorced spouses to continue participating in their former spouses plan for up to 36 months iii) Social Security and Military Retirement Benefits (1) Federal Pensions: Typically treated like other pensions; however, the Supreme Court has held that statutory provisions that prevent covered employees from assigning or alienating their pension rights were intended to prevent courts from treating these rights as marital property


(a) Hisquierdo v. Hisquierdo (1979): The anti-assignment and anti-alienation

provisions are intended to ensure that the benefits actually reach the beneficiary, and treating the benefits as divisible community property conflicts with this purpose (2) Military Retirement Benefits (a) McCarty v. McCarty (1981, U.S.): States could not treat military retirement benefits as marital property because of the statutes anti-assignment and anti-alienation clauses (b) Response to lobby of military ex-wives was overturning of McCarty v. McCarty (1981, U.S.) and Uniformed Services Former Spouses Protection Act providing that each state divorce courts may treat disposable military retired pay according to state law governing division of marital property, where marriage had lasted at least 10 years of service credited to retirement benefits (i) Mansell v. Mansell (1989, U.S.): Court held that the Act did not completely eliminate federal preemption and concluded that military disability pay is not divisible marital property, excluding disability payments (3) Civil Service Pensions: Civil Service Act allows treatment of civil service benefits as marital property divisible at divorce (4) Social Security: Most courts have held that SS benefits are not property subject to division; but payments that a former spouse receives may be treated as income from which spousal support can be paid; divorce spouses are entitled to receive SS benefits on the account of the divorced spouse if they were married for at least 10 years and remain single iv) Qualified Domestic Relations Orders: Directs the pension plan administrator to pay a portion of an employees benefits to someone other than the employee (alternate payees); minimizes contact between spouses, because non-employee spouse has order directing plan administrator to distribute her share of the pension (1) IN RE MARRIAGE OF GILLMORE (1981, CA): Court orders a husband who was eligible to but not yet retired to pay his wife her share of his retirement benefits because otherwise it impermissibly impaired the wifes interest by depriving her of her immediate enjoyment of it v) Classifying Personal Injury Awards, Disability pay, Similar Interests (1) Three approaches, per MARSH v. MARSH (1993, SC) (a) Classifying any personal injury/settlement as personal and separate property of injured spouse (b) Analytic approach, evaluating the purpose of the compensation to determine that character as marital or personal, e.g. medical expenses incurred during the marriage vs. future economic losses (i) One difficulty is that ordinarily the jury verdict or settlement may be a lump sum, not broken down into individual parts; so this approach necessitates taking apart the sum and asking to what extent the award is for personal or marital property (c) Literal/mechanistic approach, award/settlement if acquired during the marriage is automatically deemed marital property, regardless of what it replaces or purpose of award (i) ALI adopts this approach (ii) Per Marsh, classifying the award as marital merely gives the family court the authority to divide the award as the equities require (this flexibility is most desirable) vi) Goodwill: Professional Practices and Other Closely Held Businesses


FAMILY LAW OUTLINE (1) In retail services, goodwill tends to be associated with the product or services provided by the company, whereas, in a private practice, goodwill tends to be associated with the individual providing the services (a) An individual buying goodwill will often want a covenant-not-to-compete, so as to assure the buyer that he is getting the goodwill that he is paying for (2) From a marital standpoint, the physical assets, if acquired as marital property, are divisible; but compensation for post-divorce services are not (3) IN THE MATTER of THE MARRIAGE of FLEEGE (1979, Wash.): In determining property divisible upon divorce, the court takes into account the goodwill of dentists practice because the important consideration is whether the goodwill had value to the husband, which is shown to be the case vii) Valuing Degrees, Licenses, Jobs, and Earning Capacity (1) Spousal Reimbursement: MAHONEY v. MAHONEY (1982, NJ): Court introduces concept of reimbursement alimony into divorce proceedings, claiming that there will be circumstances where a supporting spouse should be reimbursed for financial contributions he/she made to spouses successfully professional training (2) NYs Equitable Division of Degrees: OBRIEN v. OBRIEN (1985, NY): Plaintiffs medical license is marital property divisible upon divorce; working spouse is entitled only to reimbursement of his/her direct financial contributions (3) How to Value and Distribute Degrees: CAs rule allows only reimbursement for expenses incurred, plus interest (a) It also covers non-degree seeking education (b) Mechanically easy to apply (c) Only available when community has not been substantially benefited; rebuttable presumption that community has not benefited from training less than 10 years ago 4) PARENT-CHILD SUPPORT DUTIES Contrasting benchmark for alimony and child support i) Benchmark for alimony: Need tends to be perceived in relation to maintenance of the marital standard of living; marital standard of living is probably the benchmark (1) Problem is that two households are most expensive than one, and you cannot sustain two households with the same standard of living ii) Benchmark for child support: The child support that the non-custodial parent pays should include the additional expense of raising the child in a united family, i.e. the marginal cost of having a child (1) Problem is that a lot of costs continue, whether or not you have the extra child (2) ALI seeks to provide residential parent with enough child support to reflect the fact that the childs support is included in rent and other general expenses of the household Child Support Guidelines: Child support guidelines are now mandated by federal law, and they must be updated every three years; departures from guidelines require written findings to justify iii) Note that there are no alimony guidelines, though the ALI gives model b) Resources of Child: Suppose the child has a big inheritance or is a child star on TV none of this is taken into account when determining child support obligations; ordinarily, the support obligation is seen as being a parental obligation to support the child through minority and to some extent after minority (some states provide support even through college) i) Should a childs resources diminish or negate the child support obligation?

FAMILY LAW OUTLINE (1) Why should a minor cover expenses that his parents are legally obligated to pay? (2) Consider parental duty to support vs. provision of basic needs arguments (3) Note that a child may argue that he did not ask to be brought into the world; the parents made the choice, so they assume the responsibilities that go along with such c) Modification: Child support changes as the obligors income goes up, though it might not change as the obligors income goes down d) Determining the Level of Support i) Income Shares and Percentage of Obligors Income (1) Income Shares (majority view): Adds available income both residential and nonresidential parents, and then applies a percentage to each parents income to determine child support (2) Percentage of Obligor's Income: Focuses solely on income of nonresidential parent ii) MA, as the model: The premise of the MA child support guidelines is that the noncustodial parent should only be required to contribute the additional amount that he would spend in the united household as a result of having the child (1) But note that the concept of marginal expenditure is not realistic where there are two households and the economies of scale cannot be used e) Federal Regulation of Child Support i) David Chambers argues that the mere happenstance of creating a child should not require support if the father is not living with the child, his ties to them become weaker, and hence he should not be required to pay at high support levels ii) In contrast, Congress has become very interested in making sure payments are high and payments are in fact made because they do not want children on welfare Can children sue parents for support? iii) ROE v. DOE (1971, NY) (where father withdrew his college support for his daughter upon learning of his daughters failure to comply with his rules of living on campus or returning home): Where, by no fault of the parents, a child abandons the parents home for the purpose of avoiding parental discipline and restraint, that child forfeits the claim to support (1) Concurrence claims that since the father would resume his support upon his daughters compliance with his requests, the daughter did not establish the requisite showing of grave harm to he health and welfare, and consequently the father has no duty to restore support iv) Suits by children are a rarity the normal suit to compel child support obligations are brought by the custodial parent or the welfare agency with seeks reimbursement for funds it has provided for child support which could have been supplied by the obligor Note on Taxation: Child is not included income for the recipient and not deductible for the obligor (contrast with alimony, where the amount is taxable income for the recipient and deductible by the payor spouse) Areas of Controversy in Child Support v) Varying Income of Obligors: ALI says child support should allow living at a level that is not grossly disproportionate to the non-custodial parents standard of living; but suppose the support obligor has a high income but it likely will not last long (e.g. professional football players)? (1) One possibility is to require some of the obligors income to be put in trust for the lean years to meet the future needs of the child (2) Other courts disagree, claiming that support obligations are based on current income; many guidelines specify a percentage of current income, with a ceiling (3) STATE v. HALL (1987, MN): Trial court did not abuse its discretion in declining to deviate from the guidelines, as it properly considered the defendants

FAMILY LAW OUTLINE standard of living when deciding the amount of child support due; illustrating the extent to which the child support obligation of a wealthy non-custodial parent (a) Child Support Statute caps child support obligation of high-income obligor at $1000 (b) Father claims he would like the child to grow up as austerely as he did (c) There should be consideration of a trust fund for education; so rather than be paid to custodial parent directly at present, it should be put into a trust for later use; BUT statute provides for current child support; so for trust fund to provide for future expenses seems askew vi) Joint Expenditures: Most household expenditures are joint; suppose a mother has children of 3 different men (one is the football payer, one is gone, and the third is earning at a modest level and paying a modest level of support) can the mother use the football players support payments to support the care of the child whose father is gone? There is no tracing, though she may be entitled to welfare for that child vii) If the custodial parent interferes with visitation, can the obligor stop paying support? No, support obligations and visitation are not linked viii) Fraud and Child Support: There is incredible importance attached to who provides the genetic material in determining child support obligations and custody; with the increased degree of genetic testing, it has become an even bigger deal (1) PATERNITY of CHERYL (2001, MA) (where alleged father of child originally acknowledges paternity without receiving a genetic test, but subsequently learns through several outlets including friends confessions, physical appearance of child, mothers confession, and fathers learning of his own infertility that he has not fathered the child; he seeks recovery for the child support he has paid for the previous 5 years since the paternity suit and discontinuation of future obligations): Court denies the father relief sought because the childs financial reliance on the fathers payments far outweigh the fathers interests, especially given that the father did not bring this suit within a reasonable time or after any of the hints he confronted that he was not the father; further, the recovery cannot be made on the basis of fraud on the court, as the mothers deception did not amount to such (only a masking of truth from the father, not tampering with evidence or corruption of the judicial process itself) (a) Note that where a paternity test is negative, the court can nevertheless assert parenthood by estoppel, where the child has relied on the financial and emotional support ix) What is the effect of a second family? If you have a support obligation to children of your first family and then have additional children, is it shared misery or firstin-time, first-in-right? (1) We should not give the first-born child any greater right hence, shared misery is usually the answer (2) Further, if obligor incurs other obligations, e.g. mortgage on a house, they do not his diminish child support obligations x) Disinheritance and Death of Obligor: LWK v. ERC (2000, MA): Testator survived by a minor child may disinherit that child, subject to the prior satisfaction of all his child support obligations; a minor childs claim for support is in the nature of a preferred creditors claim and must be satisfied prior to any testamentary dispositions; assets in an inter vivos trust containing the terms of the trust at issue here can be reached to satisfy support obligations; and a judge does not have the authority to enter an order after the death of the obligor to secure postminority educational support for a child who does not presently qualify for such support

FAMILY LAW OUTLINE (1) Troubling outcome because parents death does not decrease or extinguish need of child; so there is an increasing tendency for courts to find the continuing need beyond obligors death (2) Scott v. Wagoner held that future child support obligations are enforceable as lien against estate if compelling equitable considerations present f) Support for Older Children: When Does Support End? i) Disability: There is an increasing tendency to continue obligations past the age of 18 if the child is disabled and cannot support himself ii) Should parents be required to pay for college? Do non-custodial parents bear a greater responsibility? (1) Note that colleges impute income from parents going back 7 years when determining amount of financial aid (2) CHILDERS v. CHILDERS (1978, Wash.) (where Court of Appeals reverses an order requiring a non-custodial ex-husband to pay college expenses of his two sons and to maintain medical and dental insurance for the wife and sons until the sons are no longer dependent upon the parties for support): A rational relationship exists between the legislature and the state interest in seeing children are properly provided for within the boundaries of the needs of the children and what parents can afford; there is no absolute rule for a father to provide college expenses for his children iii) Should there be provision for automatic adjustment as children get older? MA does have a provision increasing the amount as the child ages g) Support for Parents i) Should children be allowed to put their parents on Medicaid so they can keep their inheritances? Congress has made it difficult for individuals to scam Medicaid by getting poor by giving away their assets because of the look-back period ii) Constitutionality (1) AMERICANA HEALTHCARE CENTER v. RANDALL (1994, SD) (where issue is whether the coercion of a child to pay for nursing home care of his ailing mother violates the Equal Protection Clause on the grounds that it discriminates against adult children of indigent parents): There is no quasisuspect classification or fundamental right implicated, so rational basis analysis is applied to conclude that (1) it is not an arbitrary classification and (2) the state has a legitimate interest in providing for welfare and care of elderly citizens (2) SWOAP v. SUPERIOR COURT (1973, CA) (where issue is whether the legislature providing that children are held liable to reimburse the state for public assistance provided to their indigent parents discriminates on the basis of wealth and therefore subject to heightened scrutiny): The state selects the children to bear the burden not on the basis of wealth, but on the basis of parentage 5) MODIFICATION AND TERMINATION OF SUPPORT ORDERS a) Foreseeable Changes in Circumstance: UMDA 316 states that to be a ground for modifying a spousal or child support order, a change of circumstances must be so substantial and continuing as to be unconscionable; sometimes courts deal with tension between stability and flexibility by saying that foreseeable change is not a ground for modification b) Voluntary vs. Involuntary Decreases in Payors Income: A prime example is the retirement of the obligor i) DEEGAN v. DEEGAN (1992, NJ) (where, based on a number of factors, including attractiveness of offer, slow economic times, and rigors of the job, the obligor exhusband chooses early retirement and wants to be released from his duty to pay spousal support): Where the change in circumstances is voluntary, as here, the primary-purpose rule applies, where the obligor will not be able to get out of

FAMILY LAW OUTLINE obligations where the change was primarily motivated by a desire to avoid such obligations (will depend on individual circumstances); further, whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will be considered) (1) Sole-motivation rule, which may easily be contested by showing a number of pretextual motivations (2) Good faith standard, where the individual is released of duties of he quits his job in faith (a) The ALI is very concerned with this test a career decision, motivated by personal considerations, should not affect support obligations; takes an overall view of the reasons taken and the circumstances surrounding (3) Bright-line rule, where any voluntary change is considered to not be basis for modification c) New Families Spousal Support, Remarriage, and Cohabitation i) Alimony and Remarriage (1) PETERSON v. PETERSON (1989, SD) (where divorce decree specified that alimony payments from husband to wife shall persist for seven years at $1000, then for 10 years at $500 unless wife dies or remarries; wife remarries within the first seven years, so alimony payments terminate; but wife argues first that the wording of the decree suggests that the termination for marriage can only occur in the period after the seven years; alternatively, she argues that the alimony award was an intrinsic part of the property settlement and thereby not modifiable; finally, she argues that extraordinary circumstances exist that require the continuation of the payments (i.e. her new husband cannot support her at the level her previous husband could)): Wife is not entitled to continued payments because: (1) the presumption of termination upon remarriage is only rebuttable by an explicit prior statement that the payments would continue in such event, (2) the alimony was not a disguised property award, and (3) wife has not shown extraordinary circumstances to show that payments should continue ii) Alimony and Cohabitation (1) IN RE MARRIAGE OF DWYER (1991, CO) (where husband appeals order of trial court extending the duration of maintenance payments to his wife on the basis of the wifes cohabitation): There is no evidence that the wifes arrangement did diminish or eliminate her need for continuing maintenance (note evidence of agreement between her and cohabitor); hence, her maintenance should continue (2) Should marriage terminate upon cohabitation? (a) It is not a permanent arrangement and does not signify the merging of assets (b) Does create a means of manipulation for individuals to obtain alimony despite replacement of affection (c) A cohabitation clause unduly restricts the freedom of the recipient; it interferes with her sex life and invades her privacy (3) Same sex cohabitation with intimacy is said to end alimony (4) COMBS v. COMBS (1990, KY): Court considers under what circumstances of a recipients cohabitation with another person would constitute a sufficient change in circumstances to warrant modifying support: (a) Duration (b) Economic benefit (c) Intent of parties (d) Nature of living arrangements (e) Nature of financial arrangements (f) Likelihood of continued relationship


iii) Anti-Cohabitation Clauses: Note arrangement between Marlon and Movita Brando
that alimony would terminate upon Movitas appearing to maintain a marital relationship with any person what does that mean? He claimed to not want to regulate her sex life; he was merely concerned that his money would be used for the benefit of another partner (1) Court concludes that Movita had appeared to maintain a marital relationship (2) Note Konzelman v. Konzelman dissent (1999, NJ): dependency acquired during marriage based on the marital roles assumed by the parties is at the heart of an alimony obligation, and economic need is the true basis of alimony; enforcement of anti-cohabitation clauses imposes needless burden on the judiciary and matrimonial bar d) New Families and Child Support i) ALI claims that other debts do not provide a basis for a reduction in a support obligations ii) Should obligation to support stepchildren be tantamount to obligation to support natural children? AINSWORTH v. AINSWORTH (1990, VT) (where ex-wife files a motion for increased child support, and court grants that ex-husband does not have preexisting obligation to his new stepson, but determines that the amount to be paid is too high given husbands circumstances and chooses an arbitrary figure between what he formerly paid and what the guidelines suggest): The trial court does have the power to lower obligations from what the guidelines mandate where the court believes it would be inequitable not to deviate; however, the trial court erred in not showing that it followed the statutory factors in determining the level of support, including extent to which defendants new spouse contributed to support of her son and the extent to which the defendants expenses were voluntarily incurred, and how it arrived at the level of support (1) Under VT law, stepparents are obligated to support stepchildren with whom they live to the extent as their legal parents are (2) Dissent notes that defendants obligation to support his stepson must not be subtracted from his gross income in calculating the guideline support figure, i.e. whether or not defendant has a duty to support his stepson, such a duty should not dilute his duty to pay child support to his natural children iii) Should second spouses resources be taken into account when determining how much support the husband/parent can pay to his first family? In some community property states, courts have held that half of the earnings of the new spouse, which are community property, belong to the obligated parent and are to that extent considered in calculating the child support obligation 6) CHILD CUSTODY a) Legal custody vs. physical custody i) Legal custody involves making critical legal decisions on the childs behalf, e.g. medical and financial decisions; in CA, most legal custody is joint ii) Physical custody involves the amount of time the child spends with each parent; sometimes parents will not stipulate to joint physical custody this is the real issue b) Standards for Custody Determination i) The Best Interests Test: PAINTER v. BANNISTER (1966, Iowa) (where upon the death of his wife and daughter, Painter placed his son Mark in the care of his wifes grandparents for temporary care; upon remarrying, Painter wished to have Mark return to live with him and his new wife, but Marks grandparents believed it was not in Marks best interests and fought for custody): Court grants custody to the grandparents, as they provide a more stable, dependable, conventional, middle-class, middlewest background and an opportunity for college education and profession

FAMILY LAW OUTLINE (1) Problem with best interests standard has been that, given that the standard is malleable and subjective, many custody battles result in litigation, while primary caregiving test tends to settle out of court (with 90% of cases having mother as custodian because of her role as primary caregiver) (2) There are difficulties in relying on the childs preference, as he may not always know what is best for him; the ALI gives no guidance on what age makes the child old enough to make that decision ii) The Maternal Preference (Tender Years Rule): Infants, children below puberty, and youngsters afflicted with serious ailments should be placed in a mothers care unless she was proven unworthy of the responsibility (1) PUSEY v. PUSEY (1986, UT) (where mother argues that custody of both children should have been awarded to her based on the courts judicial preference for the mother, where all other things are equal): Court denies the mother her request, claiming that the tender years rule is outdated and a violation of equal protection (i.e. the presumption does not serve a compelling state interest); rather, custody should be determined by identity of primary caregiver during marriage; identity of parent with greater flexibility to provide personal care for the child; identity of parent with whom the child spent more time pending custody determination; stability of environment provided by each parent; evidence of a childs preference for one parent over the other iii) The Primary Caregiver Test: Placement of child with primary caregiver is psychologically understood to be in the best interests of the child, presumably because the role includes: cooking/feeding, bathing/grooming/ dressing, purchasing/cleaning of clothes, medical care, arranging of social interaction, arranging alternative care, putting child to bed at night, disciplining, religious/cultural education, teaching elementary skills (1) ALI 2.09 Allocation of Custodial Responsibility: Court should allocate custodial responsibility so that the proportion of custodial time approximates the proportion of time each parent spend performing caretaking functions during the marriage, except where there is serious misconduct, a childs preference, to keep siblings together, disparity in childs emotional attachment, impracticality (a) No mention of religion, gender, sexual orientation (b) At what point is the risk of injury to the child sufficiently great to override the primary caregiver assumption? Must be clear and immediate danger to the child (2) BURCHARD v. GARAY (1986, CA) (where mother appeals a decision to grant custody of her son to his father; the father initially denied being the father of the child and continued to deny such until proven by a paternity test; upon this proof, the father finally began support payments and demanded visitation rights; the mother denied his right to such and moved for exclusive custody; the father counterclaimed for exclusive custody): The superior court abused its discretion by too heavily underscoring the financial superiority and ability to provide a more wholesome environment of the father and too lightly valuing the stability and continuity of attention, nurturing and care of the mother; the purpose of child support not child custody is to provide adequate funds to a custodian for childcare (a) The suggestion that the mother works and must hand off child care responsibilities to others is a reason to grant custody to the father displays a glaring insensitivity to the plight of single mothers c) Religion, Sexual Behavior, and Race i) Religion (1) SHELLEY v. WESTBROOKE (1817): Court denies custody to a father, where he had abandoned the mother with two children to live with another woman and subsequently declared himself an atheist, and upon the death of the mother,

FAMILY LAW OUTLINE demanded possession of the children in order to educate them as he thought proper (2) IN RE MARRIAGE of HADEEN (1980, Wash.) (where mother appeals award of custody of 4 of 5 daughters to their father on the grounds that the mother was a fervent follower of a fundamentalist Christian sect, which advocated strict discipline physical, if necessary of children and shunning of non or exmembers of the church, as well as the belief that the church comes before all other relationships in life): Court reverses and remands award of custody to father, on the grounds that there was no evidence that the mother neglected her children or did not provide them with necessaries because of her firm religious beliefs; court sets forth requirement of a reasonable and substantial likelihood of immediate or future impairment as a basis for denying custody (rejecting Quiners requirement of actual impairment) (3) KENDALL v. KENDALL (1998, MA), restricting a father from exposing his children to fundamentalist Christian doctrine, as indoctrination by either parent in either Christianity or Judaism (as the mother followed) could be damaging to a child and alienate the child from the other parent; promoting the best interests of the children is an interest sufficiently compelling to impose a burden on the defendants right to practice religion and his parental right to determine the religious upbringing of his children (4) OSIER v. OSIER (1980, ME), granting custody to father largely on mothers admitted religious belief that if needed she would not allow her child to have a blood transfusion ii) Sexual Behavior and Cohabitation: JARRETT v. JARRETT (1979, IL) (where mother is granted sole custody of her children with visitation rights for the father; father later, upon learning that his ex-wife planned to have her boyfriend move in with her and the children, petitioned for sole custody on the grounds that the mother now provided an improper moral environment for their children): Court grants sole custody to the father on the grounds that the mothers actions violated ILs fornication statute and that, though the children may not exhibit present impairment, by the time it is discoverable it will be too late to remove the children from the amoral environment, which promotes disregard for standards of conduct iii) Homosexuality (1) M.A.B. v. R.B. (1986, NY) (where mother obtained sole custody of her three children, but father later petitioned for sole custody of the oldest, on the grounds that the boys severe behavioral problems improved greatly when he the structured environment forced counseling, interaction with teachers, points system that the father offered; the mother objected on the grounds of the fathers homosexuality and the boys obvious rejection of his fathers lifestyle, as well as the boys state desire to live with his mother; the mother, however, suffers from various illnesses and requires frequent hospitalizations, which result in care of the children being delegated to family and friends and an ensuing level of instability): The gay father is granted custody of the boy, as the boys objections to his fathers lifestyle and the anticipation of taunting and social pressure do not establish that the fathers conduct has had an adverse effect upon the boy; further, there is no evidence that the father would provide an immoral environment or thrust his lifestyle upon his son, and, on the contrary, there is evidence that the father s caring and attentive and has taken measures to ensure maximum attention to the care of his son; in sum, homosexuality is not sufficient reason for denying custody or visitation (2) DELONG v. DELONG (1998, MO): Adopts nexus test, which holds that there must be some connection between the parents sexual conduct and harm to the child before that conduct is relevant to the custody determination (3) ROE v. ROE (1985, VA): Fathers continuous exposure of his daughter to his immoral and illicit relationship demonstrates his willingness to impose a

FAMILY LAW OUTLINE burden upon his daughter in exchange for his own gratification and renders him an unfit custodian (4) BOTTONS v. BOTTOMS (1995, VA): While a homosexual is not unfit per se to have custody, the conduct inherent in lesbianism is punishable as a felony and thus relevant in determining custody (5) R.W. v. D.W.W. (1998, AL): Even without showing an adverse effect, the judge can restrict the mothers visitation in order to limit her childrens exposure to her lesbian lifestyle, which is illegal and immoral and could greatly traumatize them iv) Race: PALMORE v. SIDOTI (1984, U.S.) (where mother remarries an AfricanAmerican, and father petitions for custody on the basis of such, claiming that the child will suffer emotional harm and peer ridicule): Court does not accept this argument on constitutional grounds, claiming that social standards will not be sufficient to sway the court in a direction that is morally reprehensible d) Visitation and Its Enforcement i) Raising question of whether the parent has the unlimited right to raise the child as he/she pleases and to what extent he may do so when his wishes conflict with others rights ii) Consider importance of stability and continuity vs. allowing a court to respond to changed circumstances by modifying the custody arrangements iii) Suspected Abuse and Refusal to Comply with Visitation Order: MORGAN v. FORETICH (1988, D.C. Cir.) (where mother was granted custody and the father granted visitation rights; upon suspicion that the daughter was being sexually abused by her father during the visitations, mother refuses to relinquish her daughter to the father for an extended visitation at the end of summer; finding that the sexual abuse had not been proven, mother is held in contempt and imprisoned, and appeals from such): Court affirms contempt order, claiming that the finding of no abuse is not clearly erroneous; a multidisciplinary team of experts to review the case is agreed upon (1) Note Allen v. Farrow (1994, NY), where Woody Allen is allowed on therapeutic visitations with his son because of Allens affair with his sons older stepsister iv) Relocation and Custody (1) BURGESS v. BURGESS (1996, CA) (where a custodial parent desires a move of 40 miles; mothers reasons for moving include career advancement and access to medical care, extracurriculars, and private schools/day care facilities for children): A parent seeking to relocate after dissolution of a marriage is not required to establish that the move is necessary before she can be awarded physical custody of minor children, but rather must show that the move would not prejudice the rights of welfare of the child; further, custody lawfully acquired and maintained for a significant period will have the effect of compelling the noncustodial parent to assume the burden of persuading the trier of fact that a change in custody is in the childs best interest (2) Issues in Relocation and Custody (a) Childs Preference: A child of sufficient age and capacity to reason so as to form an intelligent preference as to custody should be considered and weighed with other factors; see In re Marriage of Rosson (CA) (b) Constitutionality: Watt v. Watt (1999, WY): Right to travel is constitutional, per Shapiro, and cannot be restricted by family courts; but see, Ziegler v. Ziegler (1985, ID): Restriction on move did not sufficiently burden parent and served a compelling interest in preserving childrens rights (c) Standard: Tropea v. Tropea (1996, NY): Each relocation request must be considered on its own merits, with primary emphasis on outcome likely to serve childs best interests (rejection of mechanistic test)


(d) Presumption of Custody: In re Francis (1996, CO)/Silbaugh v. Silbaugh

(1996, MN): Presumption of continued custody with custodial parent rebuttable only by showing of endangerment or motive of depriving noncustodial parent of visitation rights (e) ALI: Basic principle of awarding custody in proportion to time spent as caretaker may be affected by relocation, except where relocation is in good faith, for a legitimate purpose (closeness to family, health reasons, career, remarriage), and to a reasonable location v) Attorney-Client Privilege: BERSANI v. BERSANI (1989, CT) (where mother, in defiance of decree stating she had to give advance notice of leaving the country with her children and a denied motion requesting permission to do such, mother disappears with the children, without fathers knowledge or permission, and consequently is found in contempt of the court; attorney of mother knows whereabouts of children, but refuses such information of grounds of attorneyclient privilege): The attorney-client privilege does not apply to information imparted to an attorney by a client in the course of perpetrating a fraud on the court; moreover, any claim of privilege is not in the best interests of the children vi) Visitation Rights of Grandparents: TROXELL v. GRANVILLE (2000, U.S.) (overturning a state court decision granting grandparents visitation rights to their grandchildren under a state statute allowing petition for such over the objections of the sole surviving parent, a fit custodial mother): So long as a parent adequately cares for her children, there will normally be no reason for the State to inject itself into the private realm of the family to contradict a parents decisions concerning childrearing; the right of a parent to procreate and raise children is fundamental (1) Note Stevens dissent: The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the states from protecting children against arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child (2) Related Cases (a) Meyer v. NE: striking down statute prohibiting the teaching of a foreign language to a child prior to 8th grade, on the grounds that this is an aspect of parental choice (b) Pierce v. Society of Sisters: striking down requirement that children be sent to public schools (c) Santosky v. Kramer: allowing custody being taken away only on clear and convincing evidence (d) Wisconsin v. Yoder: allowing Amish parents to remove their children from public schools after the 8th grade, on grounds that the Amish are a productive group in society vii) Modification of Custody and Visitation Orders (1) STATE EX REL. JOHNSON v. BAIL (1997, OR) (where mother, never married to the father of her child, retained physical and legal custody; upon threats from the father, mother moved herself and her child from place to place to hide from the father; the father sought custody in court and was granted such upon no showing of the mother; when the mother was finally tracked down and returned to home state, she pleaded guilty to custodial interference; the child continued to live with her mother, but was gradually introduced to her father, which appeared to emotionally damage the child; the mother sought custody, but the father challenged on grounds that there was no change of circumstance, except by that caused by the mothers illegal abduction of the child): Custody is granted to the mother, as there is a change of circumstances in the childs feelings toward her father; further, the custody award to the mother is in the best interests of the child (also, the mothers illegal conduct, though depriving the child of seeing her father, did

FAMILY LAW OUTLINE not ultimately create such harm that it would not be in her best interests to stay with her mother) (a) Reexamining Welby and Welby (1988, OR), stating that certain kinds of criminal conduct prohibit proof of a change in circumstances, i.e. cannot rely on evidence of strengthened relationship, where such results from illegal abduction/secretion

7) FAMILY CONTRACTS a) Premarital Agreements: Supervisory or Deferential Role of the Court? i) Uniform Premarital Agreements Act (enacted in about of states)
(1) Must be in writing and signed by both parties (2) May contract rights and obligations in property, disposition of property upon separation/divorce, modification/elimination of spousal support (3) A childs right may not be adversely affected by a premarital agreement (4) Not enforceable if one party did not voluntarily agree; the agreement was unconscionable (did not provide fair and reasonable disclosure, party did not waive right to such, and did not have reasonable knowledge of property/financial obligations of other party) - - - to be decided as a matter of law (5) Note that the UCC does provide that unconscionable contracts are not enforceable; but here there is an unconscionability-plus standard (i.e. with no disclosure and no waiver) ii) Minimal scrutiny in the oversight of prenuptial agreements: SIMEONE v. SIMEONE (1990, PA) (where on the eve of wedding, husbands attorney presented wife with prenuptial agreement to be signed, which wife signed; upon divorce, wife contended that she was not inadequately informed with respect to the nature of alimony pendente lite): Wifes request to strike down prenuptial agreement is without merit, as there was full disclosure and no evidence that wife signed the contract under duress or with hesitation (1) Court reexamines Estate of Geyer (1987, PA): Because the law has advanced to recognize the equal status of men and women and respecting the status of a prenuptial agreement as a contract subject to same criteria as are applicable to other contracts, the court acts inappropriately when it invokes inquiries into reasonableness iii) Prenuptial agreements are not arms-length agreements (contrast with separation agreements, see below) iv) What else about prenuptials makes them more difficult to draft equally for parties? (1) Parties do not know at what point they will separate (2) It is unusual to have a commercial contract meant to cover 40-50 years (3) To anticipate what would be a fair arrangement when parties are not sure when and if the contract will be applied parties may wish to specify different results upon different amounts of time together, i.e. increased equity as time increases or upon children v) Unenforceable Terms: Having a discussion of a prenuptial with unenforceable terms is likely to have the effect of laying issues out on the table that the parties may unknowingly have different understandings of, i.e. making parties aware of unstated assumptions of the other party vi) Growing Unconscionability: See MacFarlane v. Rich, where NH court recognizes and raises possibility that even though a provision for support and maintenance is not unconscionable at the time of execution, it may become more unconscionable with the passage of time vii) Note on Prenuptial Agreement from Rabbinical Council: Difficulty arises because an Orthodox Jewish woman is not perceived to be divorced until she has received a gift from her former spouses; so it is provided in the prenuptial agreement that

FAMILY LAW OUTLINE the husbands failure to abide by such will result in damages per day can the state enforce this without entangling with religion? NY does, claiming that the plaintiff if in a divorce acting must allege that he will everything within his power to enable the defendant to remarry b) Separation Agreements i) Contains provisions for disposition of any property owned by either party, maintenance of either party, and support, custody, and visitation of the children ii) Must satisfy basic contract law requirements iii) Uniform Marriage and Divorce Act 306: Provisions are binding unless the court finds that the agreement is unconscionable iv) Note idea that separation agreements are rubberstamped by courts, i.e. couples broad discretion v) Cannot have a divorce agreement, but can have this agreement to structure terms of divorce vi) Great majority of divorces to have separation agreements to determine terms rather than leaving it up to the court, unless the parties cannot agree vii) Because this agreement is made in a very different context than a prenuptial agreement as to perception of parties to relationship and to feelings of other spouse should the same degree of judicial review appropriate for separation agreements? Consider ability of one spouse to use certain assets e.g. children as a bargaining chip 8) JURISDICTION a) Divorce Jurisdiction i) Controlled by doctrines of res judicata providing that a matter that has been, or could have been, litigated in an action brought before the court and decided on the merits cannot be re-litigated in a subsequent action and full faith and credit clause (FFCC) of the constitution which provides that the states are entitled to recognition of their valid final judgments in cases (1) FFCC is required for divorce decrees; but second state can make a review for the basis for jurisdiction of the first state; if is does so and finds no jurisdiction, the divorce is void ii) Essentially, it is an in rem action (as opposed to simply personal jurisdiction) required for divorce, that is, one looks to for a forum that has some interest in the marriage relationship, not simply for a court that happens to have power over the litigants iii) Ex Parte Divorce (1) Some courts, as in Haddock v. Haddock (1906, U.S.), take the view that an ex parte (only one spouse takes part) divorce will not be granted in a state where only one party is domiciled, and contend that such a divorce can only be obtained in the state of matrimonial domicile (i.e. last state in which parties were domiciled as spouses) (2) However, Haddock was overruled in Williams v. North Carolina (1942, U.S.) (where couple lives in NV for six weeks in order to establish domiciliary so as to obtain a divorce), holding that every state has a rightful and legitimate concern in the marital status of persons domiciled in the state; Williams II (1945, U.S.) held that domiciliary is not only sufficient but necessary to obtain an ex parte divorce iv) Domiciliary Requirement: Does the Supreme Court require domiciliary for divorce jurisdiction? It has never been explicitly required, but it is assumed to be so because all states require such (1) SHERRER v. SHERRER (1948, U.S.) (where wife leaves husband in MA and goes to FL; she obtains a divorce in FL, at which the husband is represented and unsuccessfully contests on the grounds of insufficient jurisdiction because the wife was not a domicile of FL; he does not appeal, but upon the wifes

FAMILY LAW OUTLINE remarriage again contests, this time in MA (i.e. collateral attack), the jurisdiction of FL to grant the divorce; MA grants motion of husband): Adhering to principles of res judicata, court finds that MA court erred in permitting the FL decree to be subject to collateral attack on the ground that petitioner was not domiciled in FL at the time the decree was entered, as the judgment as to the wifes domiciliary had already been entered in FL where the husband was represented and had not been challenged by the husband (a) Essentially, a bilateral divorce cannot be attacked collaterally, i.e. if he had not challenged the divorce in FL, he could have collaterally attacked the divorce decree from MA (b) Note also doctrine of equitable estoppel, where partys reliance on a decree prevents the other party from challenging it (2) JOHNSON v. MUELBERGER (1951, U.S.), holding that where the law of the forum does not allow a child to collaterally attack her parents divorce decree, the full faith and credit clause prevented such an attack in any other state b) Jurisdiction to Decide Economic Issues i) VANDERBILT v. VANDERBILT (1957, U.S.) (where husband and wife separated in CA, and wife moves to NY; husband filed suit for divorce in NV and was granted such, despite that the wife was not served with process and did not appear (i.e. ex parte); wife instituted action in NY for separation and alimony from husband; the court found the decree ending the marriage valid, but found that it not affect the support obligations of the husband, i.e. husband must still pay alimony to wife): Affirmed; it has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant (1) Note Frankfurters dissent: It cannot be assumed that absent spouses value their alimony rights any more highly than their marital rights ii) SIMONS v. MIAMI FIRST NATIONAL BANK (1965, U.S.), holding that an ex parte divorce did extinguish the dower rights of a divorced spouse, even without personal jurisdiction of the absent party (1) FL claimed that, by statute, inchoate dower rights do survive a divorce decree predicated upon substituted or constructive service c) International Divorce i) Rosenstiel v. Rosenstiel (1965): recognizes a divorce in a foreign country if both parties appear; comity is the basis for recognizing a decree of another country, under which a country is not forced but may choose to accept that decree ii) Mexico tightens laws for divorces by non-residents, per Warrender v. Warrender iii) Haiti and Dominican Republic are popular places to get divorce iv) NY and TN go to great lengths not to recognize bilateral foreign divorce d) Note on Property Orders and Personal Jurisdiction i) Many courts will recognize property division orders from courts in states in which the property is not located if the court validly asserts personal jurisdiction over the parties ii) Conversely, a court in a state in which real property is locate may constitutionally assert jurisdiction to divide the property even though the defendant has no other contact with the state iii) KULKO v. SUPERIOR COURT (1978, U.S.) (where husband and wife were married in CA, and subsequently moved to NY where they lived together until separation, upon which wife moved back to CA; wife obtained a divorce in Haiti, which incorporated the terms of the separation agreement; without husbands consent, wife arranged for her son to move in with her (the daughter had already done so) and sued the husband in a CA court for full custody and increased child support; husband contested CA as a forum, claiming the court lacked sufficient minimum contacts): Court denies jurisdiction (action could be brought in NY), claiming that the marriage for convenience in CA and the husbands benefit of having children cared for in CA were insufficient to impose

FAMILY LAW OUTLINE jurisdiction; husband did not seek commercial benefit from solicitation of business in CA he did no more than consent to his childrens living with their mother in the state (1) Shaffer v. Heitner (1977, U.S.): reaffirming minimum contacts requirement of International Shoe, claiming that there must be real property owned, it could not just be stock (2) Wife can avail herself of the Uniform Reciprocal Enforcement Support Act, a mechanism for communication between court systems in different states, in order to facilitate procurement and enforcement of child support decrees where the dependent children reside in a state that does not have personal jurisdiction over the defendant iv) Tag Jurisdiction: BURNHAM v. SUPERIOR COURT (1990, U.S.) upheld tag jurisdiction, i.e. serving papers when individual physically within state but has no other connection to the state, though is not viewed favorably v) Diversity Jurisdiction: Where individuals are citizens of several states, there is no diversity jurisdiction in a domestic relations case, as domestic relations is an issue intended to be left to the states e) Interstate Enforcement of Support i) Uniform Interstate Family Support Act applies to orders to establish, modify, or enforce child or spousal support; only one state at a time may exercise jurisdiction and will use the law of its jurisdiction ii) However, full faith and credit applies to a final judgment or decree, and a decree for child support or custody can be modified by the state, and the sister state can do the same; so Congress requires a decree of full faith and credit by identifying home state that has jurisdiction with respect to custody matters iii) Note that courts cannot interfere with tribal councils determinations of child support and custody for Native American children f) Note on International Support Enforcement: U.S. has not adhered to any of the international treaties that deal with support enforcement for constitutional reasons; however, UIFSA can apply to international cases g) Child Custody Jurisdiction: Has evolved to the more flexible approach of recognizing that several states, besides the home state of the child, may have significant interests in determining the childs custody






9) DETERMINING LEGAL PARENTHOOD: UNMARRIED PARENTS AND STEPPARENTS a) Marital Presumption of Paternity i) MICHAEL H. v. GERALD D. (1989, U.S.) (where mother had an adulterous affair with Michael; she became pregnant and gave birth to a daughter; she had difficulty with her husband Gerald and lived with Michael for a time, during which the child referred to Michael as Daddy and Michael held the child out as his own; blood tests were taken, returning a high probability that Michael was the father of the child; Mother eventually left Michael and moved back in with her husband Gerald, where she resides at the time of the trial with two children born to Gerald and her daughter): CA law provides that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be the father of a child of the marriage, rebuttable by blood tests within two years of childs birth; here, the Court disallows such an evidentiary hearing to prove paternity based on the childs best interests in having one father and the states interest in preserving marriage (and disfavoring adultery) (1) CA declares it to be irrelevant for paternity purposes whether a child conceived during and born into an existing marriage was begotten by someone other than the husband; where the child is born into an extant marital family, the natural fathers unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage, and it is not unconstitutional for the State to give categorical preference to the latter ii) Today, all states provide that a married womans husband is at least rebuttably presumed to be the father of her children; many states all this to be rebutted with blood tests within 2 years (except OR), though this can still be overcome with best interests of child test (1) Supreme Court has repeatedly invalidated terms of less then 18 years b) Parents Custodial Rights: Rule of custody gives more weight to parents over third party (as opposed to custody between parents, which does not favor either party) i) Can be rebutted by extraordinary circumstances, as in NY, WS, and MD, including: abandonment/ persistent neglect, likelihood of physical or emotional harm, abdication of parental responsibilities, likelihood and degree of stability c) The Possibility of Multiple Parenthood i) Courts are more willing to recognize this when the parents have agreed ii) Some cases with facts similar to Michael H. allow the establishment of biological paternity and give biological fathers legal rights and duties while still preserving the childs status as the legal child of the mothers husband d) Unmarried Fathers i) Fraud in Child Support: MATTER of L. PAMELA P. v. FRANK S. (1983, NY) (where family court held that mother of child had purposely deceived father by lying about contraception and thereby adjusted the child support payments to reflect only the amount by which mothers means were not sufficient to support child; the appellate court reversed order, claiming that mothers fraud had no bearing on the amount of child support payments; father appeals, contending a constitutional violation of his right to decide whether he was the father, where state action is imposition of child support payment): The fathers claims fall short of a constitutional infringement of his fundamental right to privacy (and to decide matters of procreation), as a private persons disregard of anothers rights does constitute constitutional violation ii) Inheritance: In most states, children are intestate heirs of their parents, though the parents may go through the proper procedures to disinherit their children (a) Cannot disinherit if under the age of 23 or child has a physical/emotional disability (b) LA disallows parents from disinheriting their children

FAMILY LAW OUTLINE (c) Some states also allow child a right to a share where the child has been inadvertently disinherited (d) Note Lalli v. Lalli (1978, U.S.), holding that the requirement that paternity be established during the fathers lifetime was substantially related to the important state interest of facilitating the administration of decedents estates iii) Unmarried Fathers Custodial Rights (1) STANLEY v. ILLINOIS (1972, U.S.) (where Joan and Peter lived together intermittently for 18 years, during which they had three children together, though never marrying; at Joans death, Peter was denied custody of his children under an IL statute that denied custody to an unwed father and made the children wards of the state upon the death of the parent(s); Peter contested the statute, claiming that there had been no determination of his being a unfit parents, and accordingly custody should not be deprived): The state does not gain when it separates a father from his natural children, when that father is determined to be a fit parent; the interest in parenthood is so strong that it necessitates some kind of hearing in order to satisfy due process requirements (a) Note that married parents and their survivors, unwed mothers, and adoptive parents are included in the statute as parents (2) Why not establish the rule that an unmarried mother must notify the father when she puts the child up for adoption? (a) The mother may not know who the father is, the father may have no interest in knowing this or any interest in the child at all (b) The mother may not want to contact the father for fear of his violent backlash (c) Consider possibility of making notice requirements higher when the father has expressed an interest in the life of the child iv) Establishing Paternity (1) Short statutes of limitations on paternity suits when applied to barring children struck down by Supreme Court on the grounds that they violate the EP rights of children born outside marriage (2) Preponderance of the evidence standard of proof, per Rivera v. Minnich (1987) (as opposed to clear and convincing evidence) (3) Various kinds of evidence to prove paternity: photos of mother, child, and alleged father together; testimony from third parties about circumstances of alleged conception; hospital records; resemblance of child and father; fathers payment of medical expenses; behaving like a father around the child, etc. (4) Genetic testing: Federal law provides that states require the child and all other parties to submit to genetic testing where one party submits sworn statement alleging paternity or denying paternity (a) Rejecting 4th Amendment challenges, because states interest is sufficient to override (b) Under Due Process Clause, state must pay for indigents blood test, per Little v. Streater (c) PLEMEL v. WALTER (1987, OR) (where alleged father of child objected to use of doctors expert testimony related to the paternity index and its equivalents used to determine paternity on the grounds that it was irrelevant and prejudicial): Expert testimony must be relevant, in the form of opinion, and not unduly prejudicial; the expert testimony here shall be admissible with qualifications that the paternity index is not a probability of the alleged fathers paternity (but only that compared with a random individual) and that the probability of paternity cannot be presented as a single figure


FAMILY LAW OUTLINE 10) ADOPTION AND ALTERNATIVE REPRODUCTIVE TECHNOLOGIES a) Adoption i) Parental Consent to Adoption (1) All states permit a parent to consent to the adoption of a child; consent must be voluntary, and in most states it must be entered by the court (2) Some do not allow such consent to be given prior to childs birth, and others do not allow consent until after a few days after the birth (3) A parent who gave apparent consent but changes his mind and can show that consent was obtained by duress or fraud or that procedural requirements were not satisfied may have the adoption invalidated; though this may be prevented on theory of estoppel (4) In some states, consent is revocable for a set period of time ii) Grounds for Dispensing with Parental Consent (1) On proof of statutory grounds, most often some variation of desertion or abandonment and serious neglect (2) Or other states allow such in best interests of child iii) Open Adoption and Open Records (1) Open adoption generally refers to the contact between the biological and adoptive parents before the adoption or after on a ongoing basis (2) Most states still require that adoption records be sealed, but some to authorize visitation rights of biological parents (though not frequently over the objection of the adopting parents) (3) Arguments for open adoption/records: (a) Encouraging birth parents to use adoption when they know they cannot support the child (b) Adoptive parents choose open adoption in the best interests of the child (c) More frequent contact between child and birth parents, less the adoptive parents worry about the birth parents seeking rights to the child (d) Childs interest in knowing heritage/roots/ancestry for medical purposes; also note interest in avoiding incest (4) Judges often order records open upon showing of good cause (5) One possibility is to create a registry, where biological parent can indicate that she is willing to be contacted iv) Independent vs. Agency Adoption (1) In six states, adoption can be done only through intervention of a statelicensed adoption agency; others allow private adoptions, arranged directly or through intermediary (such as lawyer or doctor) (2) Private intermediaries can only be paid for their medical or legal services - - it is a crime in most states to offer or receive money for relinquishing or accepting a baby for adoption, though it is not illegal to pay biological parents for pre-birth and birth expenses and professional fees of agencies, lawyers, and doctors (a) Payment may render a birth mothers consent involuntary (3) Statutes may requires that a licensed agency evaluate the adoptive parents home and make a report; further, the agency may impose age limits, and infertility and religious requirements (4) Adoptive parents are bringing suits to abrogate adoptions, due to emotional/physical/mental problem of child or stepparents divorcing of biological mother; further, some states recognize a cause of action in tort against an adoptive agency where the agency fraudulently induced the adoption v) Child Placement, Race, and Religion (1) During 1950s and 60s, adoption practice moved away from approach of race matching: (a) Social changes from Civil Rights Movement (b) Emergence of international adoption practice (following Korean War) (2) Note National Association of Black Social Workers resolution, urging that black children be placed only in black homes because of the childs need to

FAMILY LAW OUTLINE identify at an early with the black community and the inability to do so if raised in a white home (i.e. cultural genocide, see Holyfield case) (a) Emphasis on the inherency and permanency of racism in American society (b) Note Twila Perrys argument that black women protest the taking of black children and putting them with white families as a value judgment that white mothers are better than black mothers (3) Recall two Supreme Court cases Loving and Palmore striking down under strict scrutiny laws that determine family relationships based on race on (4) 1994 Multiethnic Placement Act prohibits placement of child on basis of race, national origin, or ethnicity; 1994 Uniform Adoption Act provides that agency may not delay/deny a minors placement for adoption solely on basis of race, unless necessary to comply with biological parents request (5) Child Welfare League of America purports that children should be placed in homes reflecting their ethnic or cultural heritage, but that such should not deny or significantly delay their adoption when otherwise eligible parents are available vi) International adoption (1) Altruistic view is that they want to be aware of the conditions of these countries; Bartholet believes that foreign adoption programs are likely to increase the awareness of the problems of children in the sending countries (2) Realistically, these adopters are seeking to avoid the stringent guidelines of American adopting agencies or to avoid the oversight of the biological parents (3) Lack of a social safety net in foreign countries leads to more children up for adoption (though America provides less of one than any other advanced country) b) Alternative Reproductive Technologies i) Artificial insemination by donor (AID) (1) Uniform Parentage Act holds that where wife is artificially inseminated, her husband is treated as if he were the natural father of child; and donor is treated as if he were not the natural father of child (2) Uniform Putative and Unknown Fathers Act does not include donor of semen whose identity is unknown or who donated anonymously not wishing to be known (3) Uniform Status of Children of Assisted Conception Act holds that a donor is not a parent of a child conceived through assisted conception ii) Surrogate Motherhood (1) IN RE BABY M (1988, NJ) (where, in learning of Mrs. Sterns infertility, Mr. and Mrs. Stern sought and found through an agency a woman, Mrs. Whitehead, who would be the surrogate mother of their child; they executed a contract whereby Mrs. Whitehead was to be impregnated by Mr. Sterns sperm and upon birth would relinquish all rights to motherhood to the child and receive $10,000; upon birth, Mrs. Whitehead indicated that she could not part with the child and fled; after finally tracking her down, Mr. Stern sought to have the surrogacy contract enforced): Court refuses to uphold the surrogacy contract on statutory grounds and grounds of public policy, but does grant sole custody to Mr. Stern on the grounds of best interest test (a) Striking down contract on statutory grounds: (i) Laws prohibit money in connection with adoptions (ii) Laws require proof of parental unfitness (iii) Laws that make surrender of custody and consent to adoption revocable in private placement adoptions (b) Public policy is violated (i) The childs best interests are not considered 1. Guarantees separation from birth mother 2. Does not look to suitability of parents (ii) The surrogacy contract amounts to an exchange of money for child, negating voluntary consent of mother

FAMILY LAW OUTLINE (iii) The contract is irrevocable; Mrs. Whitehead had not obtained proper legal or other council (iv) Long-term effects of surrogacy contracts on child are unknown but feared (c) Constitutional arguments (i) Mr. Sterns right of procreation has not been violated (ii) Neither Mr. nor Mrs. Stern was denied equal protection, because there is not a parallel between rights of sperm donor and rights of surrogate mother (iii) Mrs. Whitehead does have the fundamental interest of companionship with her child (2) Some states make surrogacy contracts void (though resisting a ban on surrogacy); others, such as Arkansas, create a presumption that a child born to a surrogate mother is the child of the intended parents; others regulate the practice (3) Note Judge Posners view that adoption should be completely unregulated (i.e. laissez-faire) and that this case came out wrong (everything should be alienable) 11) CHILD ABUSE a) Probably the most under-reported crime individuals are not inclined to report such suspected abuse because they are hesitant to get involved, do not want to cause ill will b) Some children do assume that, where there is a relationship of trust between them and their abusers, that such abuse is normal c) How to reduce the incidence of abuse? i) Perhaps make every child a wanted child, i.e. increase access to abortion/contraception, adoption ii) Maybe the enactment of Good Samaritan statutes to encourage reporting by others of suspected abuse iii) More supportive financial arrangements for parents iv) Non-financial support, where parents can receive counseling on how to handle family situations v) Active social workers (though note concern that they will impose majoritarian middle class values on families and is unduly intrusive) d) Note DeShaney case (1989), where victim of abuse brings suit against the state because the state fails to act on reports of child abuse, but court fails to give judgment to victim on grounds that the state does not have any Due Process Clause requirement to protect the life and liberty of a private individual against the actions of a private individual