FAMILY LAW CARRIERE I. Structure of the Family- Family and its Regulation A.

Defining the Family for Legal Purposes 1. La. CC. Art. 3506 General Definition of Terms- Whenever the terms of law, employed in this Code have not been particularly defines therein, they shall be understood as follows:. 12. Family: Family in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common root. Moore v. City of East Cleveland- Strict Scrutiny for Arbitrary Definitions *city files charges against grandmother who housed her son and two grandchildren who were first cousins because they violated a city ordinance limiting the occupancy of a dwelling to members of a single family- cousin didnt fit definition *ISSUE- is the ordinance constitutional? Does the 14th amendment protect individual right to handle family living arrangements? *RULES-(1) freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process clause of the 14th amendment (2) when the government intrudes on choices concerning family living arrangements the court must examine the government interest advanced by the regulation and how successful it is in advancing that interest (3) DP determinations are not an exact formula and instead must be determined by a careful examination of history and the underlying values of the country *HOLDING- BECAUSE we are a culture that recognizes and respects the relationship of the extended family AND BECAUSE this ordinance discriminatorily targets households more prevalent in minority households AND BECAUSE it does not have a clear rational connection to advancing the interest of reducing neighborhood overcrowding it violates Substantive Due Process and is overturned Braschi v. Stahl Associates- Family by Intent or Living Arrangement *gay couple lived in rent controlled apartment in New York, the one whos name was on the lease dies, the owner tries to evict the other saying that the rent control laws of New York only prohibit eviction of family upon the death of lease holder *ISSUE- was the legislative intent of rent control laws to protect continuity of family living arrangements broad enough to include a homosexual partner? *RULES-(1) legislative intent is the most important aspect of interpreting a statute (2) legislative intent behind NYs rent control laws was to protect families from being uprooted by abusive landlords *FACTORS IN DETERMINING FAMILY- court looks to factors identified by lower courts in determining whether people lived as family- exclusivity and longevity of relationship, level of emotional and financial commitment, manner in which parties conducted everyday lives and held themselves out to the public

-couple lived together for ten years, both listed apartment as address, comingled finances, held themselves out as married couple, known by neighbors as such *HOLDING- the couple satisfied this subjective definition of family that the court felt was more consistent with the legislative intent of rent control laws B. Evolution of Right to Privacy 1. Constitutional provisions gave rise to the rights that developed into right to privacy (a) 14th amendment substantive due process- guarantees fundamental libertiesdoes not specify what they are, says liberties whose absence would question whether we are a free society, leaves finding specifics to the courts (b) 4th amendment- freedom of security in person and possessions (c) 1st amendment- freedom of thought/expression Meyer v. Nebraska- Constitutional Right to Determine Childs Education *challenge law against teaching German language to children under the 8th grade *court found that the freedom of parents to determine the education of their children was fundamental under the 14th amendments due process clause *While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely the freedom from bodily restraint but also the right of the individual to cotntract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Pierce v. Society of the Sisters- Overturned Oregon Law Requiring Parents to Send Children to Public Schools Exclusively, Used Rationale from Meyer Griswold v. Connecticut- Seminal Supreme Court Right to Privacy Case *Supreme Court found that state could not outlaw the sale of birth control to married couples *the State COULD outlaw the general sale of birth control across the board OR could outlaw production of birth control in state BUT could not single out married couples for the prohibition *court cites a number of constitutional amendments as supporting a right to privacy -1st amendment- freedom of speech and freedom of association- privacy of thought, expression and association -3rd amendment- freedom from forced quarter by soldiers- privacy of the home -4th amendment- freedom from unreasonable search/seizure- privacy of the person -5th amendment- freedom from compulsory self-incrimination- privacy of knowledge -9th amendment- powers NOT expressly given to government reserved for private citizens

C. Special Courts and Jurisdiction 1. Act 340 of 2011 La. Legislative Session- abolished old court effective at midnight December 31st 2014 or any time earlier if judges vacate seats before and replaces it with a new court specifically for handling all family law cases (a) also created a Domestic Relations section of that court 2. Rhonda Wasserman on Jurisdictional Issues in Family Law (a) when married couple divorces, a court can be asked to resolve three different sets of family law issues- each presents complex jurisdictional issues *whether to grant the divorce itself *how to resolve financial matters- alimony, child support, property division *how to allocate child custody/visitation rights (b) state CAN issue a divorce if spouse seeking it is domiciled there, even if it lacks personal jurisdiction over the other spouse (c)state CANNOT resolve financial matters without personal jurisdiction over the spouse who will be charged with paying the obligations or losing divided property *assures that defendants are not deprived of property without due process of law- why is this jurisdictional protection not afforded other family rights? (d) state CAN adjudicate child custody so long as its the childs home state regardless of whether the child, or either parent is domiciled there OR whether it has personal jurisdiction over either parent 3. Domestic Relations Exception to Diversity Jurisdiction- federal courts will not exercise diversity jurisdiction to grant or deny a divorce, alimony, or child custody (a) Diversity Jurisdiction- subject matter jurisdiction federal courts will exercise over state law claims between parties in different states provided the amount in controversy exceeds $75,000.00 (b) Carriere thinks this rule will be altered in the future to include child support determinations as well Ankenbrandt v. Richards- Range of Domestic Relations Exception *ex-wife sues ex-husband and his girlfriend for intentional torts (sexual battery) committed against their daughters -mom in Missouri, Dad in La., wife sues in federal court seeking diversity SMJ *ISSUE- does the domestic relations exception to diversity jurisdiction preclude a federal court from adjudicating a suit for a tort between divorced parents? *RULES-(1) courts have diversity jurisdiction to hear claims in state law between parties in different states when the amount in controversy exceeds $75K (2) the domestic relations exception precludes federal courts from exercising such jurisdiction over cases that involve issuing a divorce and/or determining alimony or child custody *HOLDING- BECAUSE this case was based in tort and did not seek a divorce or any of the other proceedings accessory to divorce it was entirely outside the scope of the exception and the court could exercise jurisdiction II. Marriage A. Marriage Requirements and Restrictions

1. La. CC. Art. 86 Marriage; Definition- Marriage is a legal relationship between a man and a woman that is created by civil contract. The relationship and the contract are subject to special rules prescribed by law. Loving v. Virginia- Interracial Marriage and Right to Marry *Virginia arrested interracial couple for violating law against interracial marriage *couple sues challenging validity of the law *ISSUE- does a law prohibiting interracial marriage violate the Due Process and/or Equal Protection Clauses of the Constitution? *RULES-(1) equal protection clause prohibits laws classifying people along racial lines unless the state can show that the classification is necessary to achieve a permissible state purpose independent of racial discrimination (2) equal application of a statute containing racial classifications is not enough to remove it from the 14th amendments prohibition on such classifications (3) 14th amendment demands that freedom of choice to marry not be restricted by invidious racial discriminations *HOLDING- BECAUSE the law clearly advanced no purpose outside of racial discrimination it was unconstitutional and overturned as such Zablocki v. Redhail- Marriage as Fundamental Right *lawsuit challenging Wisconsin statute that required people with minor children not living in their custody needed court approval prior to getting married -ALSO stipulated that anyone in this category would NOT be given the required permission unless they could prove that they were up to date on child support payments AND the child(ren) were not then and not likely in the future to become wards of the state *ISSUE- is it constitutional to deny marriage for failure to pay child support? *RULES-(1) the right to marry is a fundamental right (2) under 14th amendment infringement of any fundamental right warrants strict scrutiny meaning it must be rationally tied to advancing a compelling state interest *HOLDING- BECAUSE the statute does not provide any means of actually collecting the owed child support it is not rationally tied to advancement of the interest of ensuring payment of child support and does not pass strict scrutiny 2. La. CC. Art. 87 Contract for Marriage; Requirements- The requirements for the contract of marriage are; (a) the absence of legal impediment (b) a marriage ceremony (c) the free consent of the parties to take each other as husband and wife expressed at the ceremony 3. La. CC. Art. 89 Impediment of Same Sex- Persons of the same sex may not contract marriage with each other. A purported marriage between persons of the same sex contracted in another state shall be governed by the provision of Title II of Book IV of the Civil Code (a) long story short, same sex marriages validly contracted in states recognizing such marriages are NOT legally recognized in La.

4. La. CC. Art. 90 Impediments of Relationship- The following persons may not contract marriage with eachother (1) ascendants and descendants (2) collaterals within the fourth degree, whether of the whole or half blood. The impediment exists whether the persons are related by consanguinity or by adoption. Nevertheless, persons related by adoption, though not by blood, in the collateral line within the fourth degree may marry each other if they obtain judicial authorization in writing to do so. 5. La. R.S. 9:211 Relations of the Fourth Degree- Notwithstanding the provisions of Civil Code Art. 90, marriages between collaterals within the fourth degree, fifty-five years of age or older, which were entered into on or before December 31, 1992, shall be considered legal and the enactment hereof shall in no way impair vested property rights. 6. La. CC. Art. 91 Marriage Ceremony Required- The parties must participate in a marriage ceremony performed by a third person who is qualified, or reasonably believed by the parties to be qualified, to perform the ceremony. The parties must both be physically present at the ceremony when it is performed. 7. La. CC. Art. 92 Marriage by Procuration Prohibited- A marriage may not be contracted by procuration. (a) procuration being the use of a proxy or other means of authorizing a third party to conduct the affairs of another- cant have someone else stand in for a party to a marriage and consent to it for them, both spouses must be present for a marriage B. Marriage Defects- Void and Voidable Marriages, Vices of Consent 1. La. CC. Art. 93 Vices of Consent- Consent is not free when given under duress or when given by a person incapable of discernment. 2. La. CC. Art. 94 Absolutely Null Marriage- A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person. (a) absolute nullity- Louisiana law treats it as if it never existed (b) called void marriages (c) any interested party means anyone- an insurance company could challenge validity of marriage to avoid paying policy to widow 3. La. CC. Art. 95 Relatively Null Marriage; Confirmation- An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith. When the cause of the nullity is one partys prior undissolved marriage, the civil effects continue in favor of the other party, regardless of whether the latter remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage. A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties. A purported marriage between parties of the same sex does not produce and civil effects. (a) called voidable marriages (b) result from some impairment of consent by one party- ie one party was a minor at the time of the marriage

(c) CAN be confirmed by affirmative declaration OR ratified by action such as signing documents as married couple AFTER the impairment to consent has gone away 4. La. CC. Art. 97 Civil Effects of Relatively Null Marriage- A relatively null marriage produces civil effects until it is declared null. C. Same Sex Marriage 1. Proposed Federal Marriage Amendment to Constitution- has been resolved by Senate and House of Representatives, will be valid IF adopted by of the States (a) Section 1 Short Title- This Article may be cited as the Federal Marriage Amendment (b) Section 2 Marriage Amendment- Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. 2. La. CC. Art. 89 Impediment of Same Sex- Persons of the same sex may not contract marriage with each other. A purported marriage between persons of the same sex contracted in another state shall be (not recognized). 3. Constitution of the State of Louisiana of 1974, Article I: Declaration of Rights; 3 Right to Individual Dignity- No person shall be denied the equal protection of laws. No law shall discriminate against a person because of race or religious ideas, beleifs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for a crime. 4. La. Const. Art. XII, Defense of Marriage- Marriage in the State of Louisiana shall consist only of the union of one man and one woman. No official or court of the State of Louisiana shall construe this constitution or any state law to require that marriage, or the legal incidents thereof be conferred upon any member of a union other than the union of one man and one woman. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. No official or court of the State of Louisiana shall recognize any marriage contracted in any other jurisdiction which is not the union of one man and one woman. 5. La. CC. Art. 3515 Determination of the Applicable Law; General and Residual RuleExcept as provided in this book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of (1) the relationship of each state to the parties and the dispute; (2) the policies and needs of the interstate and international system, including the policies of upholding the justified expectations of the parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. 6. La. CC. Art. 3519 Status of Natural Persons; General Principle- The status of a natural person and the incidents and effects of that status are governed by the law of the state whose policies would most be impaired if its law were not applied to the

particular issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the relationship of each state, at any pertinent time, to the dispute, the parties, and the persons whose status is at issue; (2) the policies referred to in Article 3515; and (3) the policies of sustaining the validity of obligations voluntarily undertaken, of protecting children, minors, and others in need of protection, and of preserving family values and stability. 7. Second Restatement of Conflict of Laws 283(2)- A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. 8. Full Faith and Credit Clause- the FF&C Clause of the U.S. Constitution SHOULD force other states to recognize as valid, a marriage legally contracted in the state it comes from even if it is between members of the same sex 9. La. CC. Art. 3520 Marriage (a) A marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state whose law is applicable to the particular issue under Article 3519. (b) A purported marriage between persons of the same sex violates a strong public policy of the State of Louisiana and such a marriage contracted in another state shall not be recognized in this State for any purpose, including the assertion of any right or claim as a result of the purported marriage. 10. La. CC. Art. 3522 Effects and Incidents of Marriage and of Divorce- Unless otherwise provided by the law of the state, the effects and incidents of marriage and of divorce with regard to an issue are governed by the law applicable to that issue under Article 3519. Goodridge v. Dept of Public Health- Mass. Court Overturns Gay Marriage Ban *Massachusetts State Supreme court heard case challenging gay marriage ban *ISSUE- is a ban on same sex marriage constitutional? *RULES-(1) common law defines marriage as between a man and woman (2) no RELIGIOUS ceremony has ever been required to validate a Mass. marriage (3) civil marriage has long been held to be a fundamental right (4) laws may not interfere directly and substantially with the right to marry (5) minimum requirement for any law is that it serve a legitimate purpose in a rational way (rational basis scrutiny) *HOLDING- BECAUSE gay marriage ban does not advance any legitimate interest at all it does not pass rational basis test and is overturned in the State of Mass. -court rejected arguments that (a) the point of marriage is procreation holding that sterile people are allowed to marry and married couples have no obligation to have children (b) rule promoted optimal parenting holding that parents genders dont qualify them as parents AND denying gay people marriage doesnt deny them adoption, it ONLY denies the children of such an adoption the right to have two parents AND FINALLY (c) rejects argument about financial independence because it was stupid

*NOTE- in the wake of this decision 13 states added constitutional amendments defining marriage as between a man and a woman and generally mobilized the Christian conservative movement against gay marriage D. Polygamy, Bigamy & Incest 1. illegal in every state in the union- making it illegal was a condition for Utahs acceptance into the U.S. 2. cases where bigamy or polygamy are an issue USUALLY arise from a situation where a couple is married, splits up without getting a real divorce, then one party remarries (not like Big Love) State v. Holm- Big Love Style Polygamy Case in Utah *man marries three different women in Utah, Warren Jeffs conducts the services -this IS like in Big Love, they all live together, two of the wives are sisters *ISSUE- does a marriage violate anti polygamy laws which make it illegal for people to purport to marry more than one person if the parties to the marriages dont intend to avail themselves of any of the legal effects of marriage? *RULES-(1) Utahs anti-polygamy statute- a person is guilty of bigamy when, knowing he has a husband or wife or knowing that the other person has a husband or wife, the person purports to marry another person or cohabits with another person (2) the term marry as used in the bigamy statute includes both legally recognized and non-recognized marriages and cohabitation alone can satisfy Utahs law (3) Utahs Constitution- polygamous marriages are forever prohibited (4) a state may, without furthering a compelling state interest, burden an individuals right to free exercise of religion SO LONG AS the burden is imposed by a neutral law of general applicability (4) Lawrence decriminalized sexual acts between consenting adult gays and lesbians BUT specifically excludes conduct that causes an injury to a person or institution the law protects *HOLDING- BECAUSE he married and fucked a 16 year old girl AND BECAUSE he was already married to TWO other women at the time Holm was guilty as hell 3. La. CC. Art. 90 Impediments of Relationship- The following persons may not contract marriage with eachother (1) ascendants and descendants (2) collaterals within the fourth degree, whether of the whole or half blood. The impediment exists whether the persons are related by consanguinity or by adoption. Nevertheless, persons related by adoption, though not by blood, in the collateral line within the fourth degree may marry each other if they obtain judicial authorization in writing to do so. 4. La. R.S. 9:211 Relations of the Fourth Degree- Notwithstanding the provisions of Civil Code Art. 90, marriages between collaterals within the fourth degree, fifty-five years of age or older, which were entered into on or before December 31, 1992, shall be considered legal and the enactment hereof shall in no way impair vested property rights. (a) more than one law like this has passed in La. 5. Generally incest laws were written to prevent linear relationships from resulting in marriage- RARELY the actual case, usually its between cousins

6. Determining the degree between collaterals is a matter of counting generations (a) father to daughter= 1 degree (b) so if uncle wanted to marry niece youd count from niece to parents (1) parents to grandparents (2) then grandparents to uncle (3), hence the ban most states carry on marriage within the 4th degree 7. ALSO criminal laws against incest- have a KNOWING mens rea, so if you started fucking your long lost twin sister you never knew about youd be ok, just sick Smith v. State- Criminal Incest *mother convicted of criminal incest *ISSUE- does a law against incest violate the 14th amendment? *RULES-(1) incest is not a fundamental right (2) if a law does not infringe upon a fundamental right or disproportionately affect only a suspect class it need only have a rational basis for support (3) a person commits incest when they knowingly have sex with their natural parent, child, grandparent, grandchild, uncle, nephew, aunt, niece, stepparent, stepchild, adoptive parent or child, brother or sister or half brother or half sister without regard to legitimacy (in Tenn.) *HOLDING- BECAUSE incest laws advance the interest of promoting stability of the family unit and protecting children who may otherwise be taken advantage of it carries a rational justification and is constitutional Ghassemi v. Ghassemi- La. Choice of Law and Incest *two first cousins marry in Iran, husband moves to La. with their son, doesnt bring the wife even though he had promised he would *wife gets to La. files for divorce *ISSUE- would it be a violation of a strong public policy in La. to recognize a marriage between 1st cousins validly contracted in another state (or country)? *RULES-(1) La. CC. Art. 90 marriage between first cousins not valid/legal (2) La. CC. Art. 3520 a marriage valid in the state where contracted is recognized in La. unless such recognition would violate a strong public policy (3) foreign marriages by procuration, though absolutely null in La., are recognized when validly consummated outside of La. (4) same for common law marriages (5) Iran allows marriage between first cousins *HOLDING- BECAUSE the marriage was valid in Iran AND BECAUSE the La. legislature has repeatedly ratified incestuous marriages largely including those between cousins AND BECAUSE other absolutely null marriages have been legally recognized in La. the court finds no strong public policy against it and recognizes this marriage for the sake of letting the wife get a divorce *NOTE- court is careful to still condemn incestuous marriages between collaterals closer than cousins and does not endorse incest as a whole E. Consent to Marry 1. La. CC. Art. 87 (c)- Marriage requires the free consent of the parties to it 2. La. CC. Art. 92 Marriage by Procuration Prohibited- A marriage may not be contracted by procuration

3. La. CC. Art. 93 Vices of Consent- Consent is not free when given under duress or when given by a person incapable of discernment (a) marriage entered into with a vice of consent would be a relative nullity (voidable) meaning that it will be a valid marriage BUT Estate of Santolino- Consent & Capacity *81 year old man with lung cancer marries a 46 year old woman, dies 3 weeks later *mans siblings sue to have the marriage annulled for impotency, lack of consent and fraud as to essentials *ISSUE- can a man whos 81 years old and heavily medicated while going through chemotherapy consent to marriage? *RULES-(1) impotency is only a ground for an annulment that the other party to the marriage can claim (2) a marriage may be judged null where one party lacked capacity to consent (3) a void marriage may be annulled after the death of one party to it (4) fraud as to the essentials is a fact specific analysis where one party omits or misrepresents a fact so material that it goes to the very essence of the marriage *HOLDING- BECAUSE the wife never complained of the impotence (imagine that) that claim is dismissed AND BECAUSE the plaintiff did not articulate a claim of fraud in her complaint that was dismissed too BUT BECAUSE the old man was heavily medicated at the time the claim of lack of capacity to consent was upheld City of Shreveport v. Burling- Sham Marriage, Consent not Real *widow collecting her dead husbands benefits begins living with another man *to appease her conservative mother and mislead her children, the couple stages a sham marriage, they make no overtures of consenting to being husband and wife and do not sign or file the marriage certificate but they do have a service *ISSUE- is a couple married if they conduct a wedding service even if they do not actually consent to being married but do cohabit and occasionally refer to themselves as husband and wife? *RULES-(1) free consent of the parties is an essential element of marriage La. CC. Art. 90, 91, 87 (2) lack of intent to marry is the same as lack of consent to marriage *HOLDING- because the parties did not intend to be married they were not married 4. La. Childrens Code Art. 1545 Necessary Consent; Parents; Judicial AuthorizationAn officiant may not perform a marriage ceremony in which a minor is a party unless the minor has the written consent to marry of either (1) both of his parents (2) the tutor of his person (3) a person who has been awarded custody of the minor (4) the juvenile court as defined in Art. 1547. A minor under the age of 16 must also obtain written authorization to marry from the judge of the court exercising juvenile jurisdiction in the parish in which the minor resides or the marriage ceremony is to be performed. 5. La. Childrens Code Art. 1547 Judicial Authorization; Compelling Reasons- Upon application by the minor, the judge may authorize the marriage when there is a compelling reason why the marriage should take place (girls knocked up) 6. La. Childrens Code Art. 1550 Penalty for Officiant Who Performs a Marriage Ceremony in Violation of This Chapter- Any officiant, other than a judge or justice of

the peace, who knowingly performs a marriage ceremony at which one of the parties is a minor when the officiant does not have the necessary consent or authorization to marry required by Art. 1545 should be permanently deprived of his right to perform marriage ceremonies. (a) the MARRIAGE performed by said officiant would be relatively null since at least one party would lack capacity to consent but it could be ratified after that party reached majority AND could only be judicially declared null if the party lacking capacity initiated an action in court for such a judgment F. Ceremonial Marriage- Solemnization & License 1. LRS 9:201 Officiant; Definition- An officiant is a person authorized by law to perform marriage ceremonies. 2. LRS 9:202 Authority to Perform Marriage Ceremony- A marriage ceremony must be performed by: (a) a priest, minister, rabbi, clerk of the Religious Society of Friends, or any clergyman of any religious sect, who is authorized by the authorities of his religion to perform marriages, and who is registered to perform marriages; (b) a state judge or justice of the peace 3. LRS 9:203 Officiant; Judges and Justices of the Peace (a) Judges and justices of the peace may perform marriage ceremonies within the following territorial limits: *a justice of the supreme court within the state *a judge of a court of appeals within the circuit *a judge of a district court within the district *a judge of a family court, juvenile court, parish court, city court, or, in Orleans Parish, a municipal or traffic court, within the parish in which the court is situated; and *a justice of the peace within the parish in which the court of that justice of the peace is situated, and in any parish within the same supreme court district which has no justice of the peace court (b) a judges authority to perform marriage ceremonies continues after he retires (c) a retired justice of the peace who has served a total of 18 years in that capacity shall retain his authority to perform marriage ceremonies within the territorial limits authorized in subsection (a) of this section provided he registers to perform such ceremonies (d) notwithstanding the provisions of paragraph (a)(5) of this section, a justice of the peace within and of the parishes of DeSoto, Bossier, Caddo, Bienville, Webster, or Red River may perform marriage ceremonies within any of these parishes (e) REALLY LONG COMPLEX SET OF RULES ON JUDGES ABILITY TO PERFORM MARRIAGES BASED ON POPULATION 4. LRS 9:204 Officiant Other Than Judge; Registration- An officiant, other than a judge or justice of the peace, may perform marriage ceremonies only after he registers to do so by depositing with the clerk of court of the parish in which he will principally perform marriage ceremonies, or, in the case of Orleans Parish, with the office of the state registrar of vital records, an affidavit stating his lawful name, denomination, and address.

5. Minnesota Marriage License statute requires parties to provide (a) full names and sex of each party (b) post office address and county and state of residence (c) full ages of both parties (d) if either party has previously married, the partys married name, and the date, place and court in which the marriage was dissolved or annulled or the date and place of the death of the former spouse (e) if either party is a minor, the name and address of the minors parents or guardian (f) whether the parties are related to each other, and if so, their relationship (g) the name and date of birth of any child of which both parties are parents, born before the making of the application, unless their parental rights and the parent and child relationship with respect to the child have been terminated (h) address of the bride and groom after the marriage to which the court administrator shall send a certified copy of the marriage certificate (i) the full names the parties will have after marriage and the parties social security numbers 6. LRS 9:205 Officiant to Require Marriage License- An officiant may not perform a marriage ceremony until he has received a license authorizing him to perform that marriage ceremony 7. LRS 9:224 (Form); Information Required (for license in La.) (a) An application for a marriage license must include: *the date and hour of application *the full name, residence, race and age of each party *the names of the parents of each party *the number of former marriages of each party, and whether divorced or not *the relationship of each party to the other *each partys social security number or a statement by the applicable party that no social security number has ever been issued to him. (b) The applicant must verify the information to the issuing official by affidavit (c) In cases wherein the parties intend to contract a covenant marriage, the application for a marriage license must also include the following: We, [name of intended husband] and [name of intended wife], do hereby declare our intent to contract a Covenant Marriage and, accordingly, have executed a declaration of intent attached hereto. (d) no D (e) The failure of the application to contain the signatures of both parties shall not affect the validity of the covenant marriage if the declaration of intent and accompanying affidavit have been signed by the parties (f) in addition, the Louisiana Marriage license has the following attachments *certified copy of each partys birth certificate *any authorizations required for a minor party to marry *the declaration of intent for a covenant marriage if any *any waiver of the 72 hour delay in performing the ceremony

Persad v. Balram- Flexibility of Ceremonial/License Requirements *2 people married in Hindu service in New York, husband sues for declaration that the parties were never really married -no license -Hindu priest not licensed to perform marriages in New York *ISSUE- can a marriage be declared null by virtue of a lack of a valid marriage license and the fact that the officiant was not licensed to perform marriages? *RULES-(1) where parties participate in a solemn marriage ceremony officiated by a clergyman or magistrate wherein they exchange vows, they are married in the eyes of the law (2) a failure to procure a valid marriage license will not render void any marriage solemnized between persons of full age (3) in New York a marriage may be solemnized by a clergyman minister of any religion *HOLDING- BECAUSE both parties treated the ceremony like a wedding, called it a wedding, had a reception etc AND BECAUSE both parties were of full age AND BECAUSE the ceremony was conducted by a priest it was a valid marriage 8. LRS 9:235 Valid for Thirty Days- A marriage license is valid for thirty days from the date of issuance. No officiant shall perform a marriage after the license has expired. 9. LRS 9:237 Information on Matrimonial Regime and Covenant Marriage Laws; Printed Summary (a) On receiving an application for a license to marry, the license-issuing officer shall deliver to each prospective spouse, eith in person or by registered mail, a printed summary of: *the then current matrimonial regime laws of this state and *the covenant marriage law of this state -these summaries shall be prepared by the attorney general of this state (b) The summary of matrimonial regime law shall emphasize the possibility of contracting expressly a regime of ones choosing before marriage, that spouses who have not entered into a matrimonial agreement before marriage become subject to the legal regime by operation of law, and the possibility of contracting after marriage to modify the matrimonial regime. (c) The summary of covenant marriage law shall emphasize that premarital counseling is mandatory at which time the necessary documents consisting of the declaration of intent and the affidavit and attestation of the counselor shall be executed, that the couple agrees to take all reasonable steps to preserve their marriage if marital difficulties arise, including marriage counseling, that divorce in a covenant marriage is restricted to fault by a spouse and living separate and apart for two years as provided in LRS 9:307, and that divorce under the general marriage law of this state differs significantly 10. LRS 9:241 Premature Ceremony Prohibited- An officiant may not perform a marriage ceremony until seventy two hours have elapsed since the issuance of the marriage license

11. LRS 9:242 Waiver of Delay (a) A judge or justice of the peace authorized to perform the marriage may waive the seventy two hour delay upon application of the parties giving serious and meritorious reasons. (b). An officiant authorized to perform marriage ceremonies in the parish of Orleans may waive the seventy two hour delay for nonresident parties upon application of the parties giving serious and meritorious reasons For purposes of this Subsection, non-resident shall mean a person domiciled or residing in a jurisdiction other than the state of Louisiana. 12. LRS 9:243 Penalty- An officiant, other than [those authorized to waive delays under LRS 9:242 A & B] who violates LRS 9:241 may have his authority to perform marriage ceremonies revoked by the state registrar of vital records. The revocation may not exceed one year. 13. LRS 9:244 Witnesses Required- The marriage ceremony shall be performed in the presence of two competent witnesses of full age. 14. LRS 9:245 Marriage Certificate (a) The marriage certificate is the record prepared for every marriage on a form approved by the state registrar of vital records. It shall contain the information prescribed. On the face of the certificate shall appear the certification to the fact of marriage including, if applicable, a designation that the parties entered into a covenant marriage, signed by the parties to the marriage and by the witnesses, and the signature and title of the officiant. (b) The marriage certificate shall show the place, time, and date of the performance of the ceremony 14. LRS 9:254 Penalty for Failure to File or Complete Marriage Certificate- Any person authorized to perform marriages in this state who fails to complete the forms provided by the Department of Health and Human Resources, and specifically fails to fill in the date and place the ceremony was performed, or neglects or fails to file the two executed copies with the clerk of court in the parish where the license was issued or, if in Orleans Parish, with the state office of vital records, within ten days after the date of the marriage as provided by law, shall be fined not less than twenty dollars for the first offense, fifty dollars for the second offense, and one hundred dollars for a third offense, and the offender shall be prohibited thereafter from officiating at any marriage in this state. Succession of St. Ange- Mandatory v. Directory Requirements *RULES-(1) La. CC. does not declare null a marriage not preceded by a license and not evidenced by an act signed by a certain number of witnesses and the parties (2) NOR does the code make such an act the exclusive evidence of a marriage (3) laws relating to forms and ceremonies are regarded as directory to those alone who are authorized to celebrate marriages and are intended to guard against hasty and inconsiderate marriages in defiance of parental authority (4) marriage is considered a civil contract and like all other contracts it may be proven by any evidence not prohibited by law (5) cohabitation as man and wife furnishes presumptive evidence of a preceding marriage

G. Common Law Marriage- Marriage Without Ceremony 1. marriage created by the express consent of the parties without any formal ceremony and often without witnesses, elements of proving common law marriage are: (a) an agreement to be married made by parties competent to contract- need not be in writing, must show mutual intent to be married (b) accompanied and followed by cohabitation as husband and wife- no statutory period of time to qualify, no magic number (c) subsequently holding themselves out as husband and wife; and gaining a reputation among community as being married (public repute) 2. threshold of proof necessary depends on the jurisdiction (a) some states require a preponderance of the evidence (b) some states require clear and convincing (c) some states just dont allow it (La.) 3. Common law marriage is an institution created out of necessity in the frontier days where couples may have moved out into the middle of nowhere and not had access to churches, priests etc (a) doctrine provided judges a way to privatize the financial dependency of economically unstable women by declaring a woman to be a mans wife or widow (b) avoided branding children of unwed parents with the legal status of illegitimacy (c) these policy concerns are no longer so great to our society, hence the abolishment of common law marriage in most states *single mothers can now obtain child support regardless of marital status *women work jobs now 4. while CL marriage is widely abolished, choice/conflict of law rules still allow for its recognition in states that dont allow the marriages themselves provided that the marriage was legal where entered into In Re Estate of Hunsaker- Proving Common Law Marriage *man dies, woman claims to be his heir as his common law wife *ISSUE- what is the threshold for cohabitation and public repute as husband and wife necessary to prove common law marriage? *RULES-(1) to prove a common law marriage a party must prove (a) that the parties were competent to enter into a marriage (b) that the parties assumed a marital relationship by mutual consent and agreement; and (c) that the parties confirmed their marriage by cohabitation and public repute (2) party seeking to prove common law marriage must prove all three elements were satisfied at same time *HOLDING- BECAUSE the woman wore an engagement ring, the couple lived together for 9 years, numerous members of their community knew them as husband and wife, they bought a grandfather clock with their initials sharing the mans last name engraved on it, they posted a sign in front of their house calling the Hunsaker residence and their answering machine called it the same the court found that they had established a common law marriage *NOTE- this case was tried in a Montana court, Montana has a more liberal view of common law marriages than many other states, likely due to their heritage as a frontier state

Fritsche v. Vermillion Parish- La. Recognizes CL Marriages From Other States *man dies in hospital, woman sues for wrongful death in survival action -claims to be common law wife- one of two classes capable of survival action *ISSUE- does La. recognize common law marriages from other states? *RULE- La. is obliged to give full faith and credit to common law marriages validly contracted in other states *HOLDING- BECAUSE the couple had entered into a valid common law marriage in Texas prior to moving to Louisiana the court recognized the marriage Brinson v. Brinson-More Choice of Law for CL Marriages, CL Marriage in Bad Faith *man marries, then marries another woman before getting a divorce, then continues to live with second wife, then marries another woman then dies *second wife is suing for declaration that the marriage to the third wife was invalid because she was decedents valid common law wife at the time *ISSUE- does La. recognize a common law marriage that is the result of two people cohabitating after first consummating an invalid ceremonial marriage in bad faith? *RULES-(1) in Mississippi an illegal ceremonial marriage may transform into a valid common law marriage by the cohabitation of the parties IN GOOD FAITH after the impediment making the marriage illegal has gone away (2) comity between states for the sake of conflicts of laws does not require a state to recognize a marriage which is contrary to its own public policy (3) in La. no civil effects can flow from a marriage which is null unless the claimant was in good faith *HOLDING- BECAUSE the couple was in bad faith when they entered into their marriage initially AND BECAUSE La. has a strong public policy against recognizing marriages entered into in bad faith this marriage was not recognized in the La. court H. Putative Spouse Doctrine- Consequences of Good Faith Violation of Restriction 1. equitable remedy which allows a spouse who unwittingly and in good faith entered into an illegal marriage to still avail themselves of the civil effects of the marriage as provided by state law (a) to claim putative spouse status the spouse must not have known of the impediment and cannot have willfully ignored red flags to its existence- its a known or should have known standard (b) once the spouse learns of the impediment civil effects cease to accumulate and that spouse will lose putative status- so if the wife learns of impediment a week before the couple buys a house she would not be entitled to division of the house 2. La. CC. Art. 96 Civil Effects of Absolutely Null Marriage; Putative Marriage- An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith. When the cause of the nullity is on partys prior undissolved marriage, the civil effects continue in favor of the other party, regardless of whether the latter remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage. A marriage contracted by a party in good faith produces civil effects in

favor of a child of the parties. A purported marriage between parties of the same sex does not produce any civil effects. 3. La. CC. Art. 97 Civil Effects of Relatively Null Marriage- A relatively null marriage produces civil effects until it is declared null. 4. La. CC. Art. 151 Proceeding for Declaration of Nullity of a Marriage; Interim Incidental Relief- In a proceeding for declaration of nullity of a marriage, a court may award a party the incidental relief afforded in a proceeding for divorce. 5. La. CC. Art. 152 Proceeding for Declaration of Nullity of a Marriage; Final Incidental Relief- After the declaration of nullity of a marriage, a party entitled to the civil effects of marriage may seek the same relief as may a divorced spouse. Incidental relief granted pending declaration of nullity to a party not entitled to the civil effects of marriage shall terminate upon the declaration of nullity. Nevertheless, a party not entitled to the civil effects of marriage may be awarded custody, child support, or visitation. The award shall not terminate as a result of the declaration of nullity. Williams v. Williams- Putative Spouse and Civil Effects (in Nevada) *man and woman marry, 27 years later woman finds out that her prior marriage had not been terminated though her ex-husband had told her he obtained a divorce *ISSUE- is a putative spouse entitled to alimony as one of the civil effects of marriage when a marriage is annulled and both parties to the marriage were in good faith? *RULES-(1) putative spouse doctrine requires (a) a proper marriage ceremony performed and (b) one or both of the parties had a good faith belief that there was no impediment to the marriage (2) good faith is an honest and reasonable belief (3) where a marriage is not valid and is relatively null or absolutely null, the proper action to terminate the marriage is an annulment (4) some states award alimony after an annulment, some dont *HOLDING- BECAUSE the parties were both in good faith AND BECAUSE Nevadas statutes dont award alimony for annulments no alimony was awarded, and property division was the only civil effect given to the wife Cortes v. Flemming- More Civil Effects of Putative Spouse Doctrine (in La.) *man and woman marry, man was already married to another woman at the time, wife finds out, files for annulment and demands permanent alimony *ISSUE- is a putative spouse entitled to alimony? *RULES-(1) La. courts have broadly construed the putative marriage provision of its civil code in favor of children of the marriage and the parties in good faith when determining the civil effects theyre entitled to (2) civil effects a putative spouse in La. is entitled to include: (a) legitimacy of children of the marriage (b) right of putative spouse to claim workmens comp from employer of other spouse (c) right of putative spouse to proportionate share of community property (d) right of putative spouse to inherit as a wife in succession of the husband (e) right of putative spouse to be considered the widow under husbands insurance policy (f) right of putative spouse to the marital portion when she is otherwise qualified *HOLDING- in keeping consistent with the liberal determination of civil effects for the putative spouse the La. court grants alimony

Succession of Marinoni- Good Faith & Marriage Ceremonies for Putative Spouse *21 year old lawyer in New Orleans brings a 17 year old Italian immigrant to Gulfport Miss. Submits two affidavits to the clerk of court (one being a lie that the girl was over 18) then gets a license authorizing a marriage and tells the girl that theyre legally married and will have a ceremony later *girl knew nothing about laws in U.S., couldnt read English to check the license *then he gets the girl pregnant, then he tells her the marriage was false because there was no ceremony and he marries another woman, then he dies *ISSUE- can a spouse claim putative status when there was no actual marriage ceremony BUT the spouse still had a good faith belief that she was legally married? *HOLDING- yes she can Mara v. Mara- Proving Good Faith *wife divorced husband in Alabama before re-marrying *finds out divorce was not real, shed be defrauded by a con artist in Bama posing as a divorce lawyer and ripping people off for no-fault divorces *ISSUE- is a spouse in good faith for the putative spouse doctrine where she THOUGHT she had divorced her previous husband but was defrauded? *RULES-(1) good faith is presumed in most cases for PSD (2) the presumption is NOT available to a spouse who has been shown to be previously married and neither widowed nor divorced (3) such a spouse bears the burden of proving good faith in contracting the allegedly putative marriage (4) good faith is largely determined by the surrounding circumstances *HOLDING- BECAUSE the wife was able to furnish proof of the scam in Bama she was found to be in god faith and a putative spouse 6. Putative Marriage v. Common Law Marriage (a) requirements *CL requires no impediments to prevent a marriage (except the lack of a ceremony) *PM requires a ceremony accompanied by impediments and the good faith of at least the spouse claiming putative status (b) effects *CL has all of the effects of a legal marriage *PM in civil jurisdictions have all effects, some limit the effects (c) termination- divorce or death for both, though the putative status stops when the putative spouse learns of the impediments to the marriage (d)effects of termination *CL- normal incidents of death or divorce *PM- normal incidents in some jurisdictions but again the civil effects are limited in others I. Obligations and Benefits of Marriage- Fidelity, Support and Assistance 1.La. CC. Art. 98 Mutual Duties of Married Persons- Married persons owe each other fidelity, support and assistance

(a) breach of the duties by one spouse gives the other spouse grounds to sue for divorce and allege fault on the part of the spouse that breached his duty Favrot v. Barnes- Cant Contract Out of Marital Obligations; Duty of Fidelity *man files for divorce, claims the wife is at fault for her breach of their premarital agreement that stipulated that they would only have sex once a week -he claims she sought sex three times a day instead *ISSUE- can spouses to a marriage bind each other to a premarital agreement to only have sex once a week? *RULES-(1) Art. 98 spouses owe each other fidelity, assistance and support (2) fidelity means you cant fuck anyone else AND you have to fuck your wife (3) marriage obliges the spouses to fulfill the reasonable and normal sex desires of each other (4) spouses cannot contract out of the duties of marriage *HOLDING- BECAUSE spouses cannot contract out of marital duties and BECAUSE sex with your spouse is a marital duty the wife is not at fault 2. La. CC. Art. 99 Family Authority- Spouses mutually assume the moral and material direction of the family, exercise parental authority, and assume the moral and material obligations resulting therefrom 3. La. CC. Art. 100 Surname of Married Persons- Marriage does not change the name of either spouse. However, a married person may use the surname of either or both spouses as a surname 4. La. CC. Art. 184 Presumed Paternity of Husband- The husband of the mother is presumed to be the father of all children born or conceived during the marriage. 5. LRS 9:291 Suits Between Spouses- Spouses may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code; for restitution of separate property; for divorce or declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart. McGuire v. McGuire- Obligation of Support *wife sues husband for support and maintenance, claims husband has breached his duty of supporting her financially *husband was wealthy but notoriously cheap, had them living on a farm -no bathroom, bathing facilities or indoor toilet -didnt give her any money for clothing, furniture or other house needs -no charge accounts or credit -gave her only minimal money and hadnt given any for 4 years prior to suit even though she performed all of the household chores *ISSUE- can a court order a husband to pay spousal support to his wife when the couple is still married? *RULES-(1) it is the duty of the husband to provide support and means of living proportionate to his means (2) where the husbands conduct is such as to render the home life intolerable for the wife she may leave without forfeiting her right to maintain an action for maintenance against her husband (3) a wife living in the

same home as her husband but occupying a different room and eating at a different time is not entitled to separate maintenance (4) for a spouse to maintain an action for maintenance, she must be living separate and apart from her husband (5) the living standards of a family are the households concern and not the courts *HOLDING- BECAUSE the couple was still married and living together the court would not order support/maintenance from the husband Chi v. Pang- Support and Protective Orders *man abused his wife and attacked her with knife- after a court issued a protective order forcing husband to stay away from the wife *wife sues for financial support from the husband *ISSUE- can a court order support as part of a protective order forcing husband to stay away from his wife? *RULES-(1) courts can issue protective orders keeping an abusive spouse away from the other one and may extend such orders as long as it likes (2) as part of order the court can order such support as is necessary (3) Art. 98 spouses owe support *HOLDING- yes the court could order the husband to pay support 6. LRS 14:74 Criminal Neglect of Family- Criminal neglect of family is the desertion or intentional nonsupport. (a) by a spouse of his or her spouse who is in destitute or necessitous circumstances *for purposes of this subsection, the factors considered in determining whether necessitous circumstances exist are food, shelter, clothing, health, and with regard to minor children only, adequate education, including but not limited to public, private or home schooling and comfort (b) Whenever a husband has left his wife or a wife has let her husband in destitute or necessitous circumstances and has not provided means of support within thirty days thereafter, that failure to do so provide shall be only presumptive evidence for the purpose of determining the substantive elements of this offense that at the time of leaving he or she intended desertion and nonsupport. The receipt of assistance from the Family Independence Temporary Assistance Program (FITAP) shall constitute only presumptive evidence of necessitous circumstances for purposes of proving the substantive elements of this offense. Physical incapacity which prevents a person from seeking any type of employment constitutes a defense to the charge of criminal neglect of family (c) Las attaching a privilege against the disclosure of communications between husband and wife are inapplicable to proceedings under this Section. Husband and wife are competent witnesses to testify to any relevant matter (d) Whoever commits the offense of criminal neglect of family shall be fined not more than $500 or be imprisoned for not more than 6 months, or both, and may be placed on probation pursuant to LRS 15:305. *if a fine is imposed, the court shall direct it to be paid in whole or in part to the spouse, to the court approved fiduciary of the spouse, or to the Louisiana Department of Social Services in an AFDC case or in a non-AFDC case in which the said department is rendering services, whichever is applicable In addition, the court may issue a support order, after

considering the circumstances and financial ability of the defendant, directing the defendant to pay a certain sum at such periods as the court may direct. The amount of support as set by the court may be increased or decreased by the court as the circumstances may require. *the court may also require the defendant to enter into a recognizance, with or without surety, in order that the defendant shall make his or her personal appearance in court whenever required to do so and shall further comply with the terms of the order or of any subsequent modification thereof (e) For the purposes of this Section spouse shall mean a husband or wife 7. La. CC. Art. 2372 Necessaries- A spouse is solidarily liable with the other spouse who incurs an obligation for necessaries for himself or the family (a) the necessaries doctrine- a husband can be held liable for purchases made on credit by his wife provided that the thing bought was a necessary (b) VERY difficult to predict- what is considered a necessary depends on the means of the husband whose wife is making the purchase (c) merchants must rely on the assertion from the wife that shes married III. Non-Marital Relationships A. Domestic Partnerships & Civil Unions 1. a registered non-marital relationship including cohabitation (a) benefits/obligations spelled out by state laws *some states create a virtual marriage- Oregon grants the exact same rights and privileges to people in domestic partnerships as they do full marriages *some states give little more than public recognition (b) often offered as a pseudo marriage for same sex couples (c)some states offer this kind of status exclusively to same sex couples to prevent opposite sex couples that could legally get married from using this option instead B. Palimony and Contractual Arrangements- must pass meretricious relationship test whereby courts will refuse to enforce a contract for cohabitation if they determine that the consideration for the contract was sex Marvin v. Marvin- Contractual Cohabitation Must Not Be Prostitution *Lee Marvin had a live-in girlfriend, he kicked her out when he became a big shot movie star, then she sued to enforce an oral contract between them to live together as husband and wife -contract was that they would not actually marry but would live together and hold themselves out in public as husband and wife and she would cook and clean and they would combine their earnings and efforts and share all property they accumulated and the woman would give up her career as an entertainer/singer *ISSUE- can a man and woman contract for the woman to live with the man and render her services as a companion, homemaker, housekeeper and cook in exchange for the man supporting her financially without it being prostitution? *RULES-(1) a contract between nonmarital partners is unenforceable to the extent that it explicitly rests on sex as consideration (2) a contract between nonmarital

partners even if expressly made in contemplation of a common living arrangement is invalid only if sexual acts form an inseparable part of the consideration for the agreement (3) any severable portion of such a contract supported by independent consideration will still be enforced *HOLDING- BECAUSE contracts between nonmarital partners CAN be enforced case remanded to determine if a contract did in fact exist 1. VERY difficult for a plaintiff trying to sue for a breach of a palimony contract to actually recover anything (a) contracts generally oral, tough to prove they ever even existed much less what they really provided for Schwegmann v. Schwegmann- La. Courts Look Down on These Contracts *founder of Schwegmanns dies, former mistress claims entitlement to his estate, sues for breach of contract, recognition of constructive trust, quasicontract/quantum meruit whole 9 yards *ISSUE- Does La. recognize Palimony Contracts? *RULES-(1) constructive trust imposes an equitable lien on property because of a fiduciary relationship between parties (2) La. law does not allow imposition of constructive trusts on property (3) a woman who occupies the position and performs the duties of a wife without the legal title and privileges from a legal marriage is a concubine (4) concubines and paramours have no legal rights to each others property (5) quasi contract/quantum meruit actions claim compensation for unjust enrichment that one derived from the labor of another and imposes an implied promise to pay for said labor (6) where parties to a contract cohabit in a sexual relationship and their agreement to cohabit is part of the basis for the agreement between them, the agreement is unenforceable because it is an unlawful contract for meretricious services (7) if a commercial enterprise is independent of the illegal cohabitation, then each party may cassert his rights in the common endeavor *HOLDING- BECAUSE the parties cohabitated and had a sexual relationship the court found no enforceable contract because they said that everything about it including the domestic services rendered were inextricably interwoven with the meretricious relationship BUT remanded the case to determine the value of any business contributions the concubine plaintiff made the Schwegmanns business 2. New Jersey has lead the way in Palimony law (a) three elements *parties engaged in a marriage-type relationship *during this period the defendant promised the plaintiff that he/she would support him/her for life, AND *that the promise was made in exchange for valid consideration (b) amount and sufficiency of consideration given is not insignificant BUT it does not need to be equal to the benefit that the claimaint received/ plaintiff demands *simply must be a detriment agreed to in bargain between the parties

(c) no requirement that a palimony claimant show dependency on the other cohabitant or that the other cohabitant was at fault (d) palimony claim survives death f the promisor (defendant) Devaney v. Lesperance- Cohabitation NOT Necessarry for N.J. Palimony Action *married Dr. has an affair with his receptionist, eventually buys a condo that he lets her live in for free, goes on vacations with her, eats dinner at her place multiple times a night, does not divorce his wife, eventually they split up *ISSUE- can a plaintiff sustain a palimony claim without cohabitating with the defendant first? *RULES-(1) palimony requires inter alia a marriage type of relationship (2) cohabitation is not a NECESSARY element of palimony but is a factor considered when determining if the relationship was a marriage type (3) a marriage type of relationship has been defined as a relationship where people commit to eachother, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship, and fulfilling each others needs, financial, emotional, physical and social as best as they are able (4) palimony also requires a promise of support *HOLDING- BECAUSE the parties rarely spent the night together, the Dr. remained married (dont know how), the parties didnt spend significant ammounts of time together, didnt comingle their property or finances, and did not hold themselves out to the public as husband and wife the court holds that there was not a marriage type of relationship and did not award palimony although they DID hold that cohabitation is not necessary for palimony 3. Washington States Meretricious Relationship- a stable, marital-like relationship in which both parties cohabit knowing that a lawful marriage does not exist (conceptually the same as a palimony) (a)court considers five factors in determining a meretricious relationship *continuous cohabitation *duration of the relationship *purpose of the relationship *pooling of resources *intent of the parties (c) parties can enter a meretricious relationship while one or both is married to someone else depending on the circumstances *divorce would have to loom on the horizon for such a situation to work when the five factors are considered (d) property rights acquired from such a relationship survive the death of a party (e)rebuttable presumption that property acquired during the relationship belongs to both parties *party may rebut the presumption by showing that he acquired the property with money that would otherwise be characterized as separate property if he was married (f) courts split property in these relationships by evaluating the interest each party had in property acquired during the relationship

Fleming v. Spencer- Washington States Meretricious Relationship *man and woman began dating and living together while man was separated but not divorced, later man finalizes divorce, moves into property awarded from the divorce, woman moves in with him *for 15 years they lived together and had sex with sporadic breaks where one lived somewhere else for work/school *couple breaks up, woman sues for division of property they lived in *court finds a meretricious relationship because (a) they lived together for 15 years (b) formed their relationship for marital type of reasons such as intimacy, support, companionship etc AND (c) signed wills naming each other executor and heir of any property not specifically bequeathed indicating an intent to form a stable marital type of relationship that they had entered into a meretricious relationship *court awards the property they lived in together to the woman IV Divorce *La. CC. Art. 101 Termination of Marriage- Marriage terminates upon the death of either spouse, divorce, a judicial declaration of its nullity when the marriage is relatively null or the issuance of a court order authorizing the spouse of a person presumed dead to remarry as provided by law A. Fault Based Divorce 1. Historic Grounds- all based on old Roman Catholic/Ecclesiastical notion that divorce was not based in any right to liberate oneself from a dysfunctional marriage but rather it was a system of punishing a guilty party (a) in 1825 separation form bed and board was only legally available in Louisiana if one spouse committed adultery *only available for women if their husbands committed adultery AND kept their concubines in the house Waldron v. Waldron- Alcohol Abuse and Verbal Abuse Insufficient in 1890 *California case in 1890, woman filed for divorce because her husband broke a premarital promise he made to her to stop drinking and would get drunk and verbally abuse her regularly *California Supreme Court reversed an order granting her the divorce holding that her suffering was insufficient to grant a divorce -advised her to quit nagging her husband about his misconduct and to try and melt his heart with uniform kindness instead (b) in 1987 the grounds became more expansive *adultery by either spouse *other spouse convicted of a felony and sentenced to death or imprisonment for life with hard labor

*habitual intemperance of one spouse, or excesses, cruel treatment, or outrages of one spouse toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable *public defamation on the part of one spouse towards the other *abandonment of one spouse by the other *an attempt by one spouse to kill the other *when one spouse has been convicted of a felony and become a fugitive *intentional non-support by the husband of the wife when she is destitute or in necessitous circumstances *when the husband and wife have voluntarily lived separate and apart continuously for six months and no reconciliation has taken place during that time (this ground developed into no-fault divorce) *when the spouses have lived six months separate and apart, voluntarily and without reconciliation; provided that both spouses shall execute an affidavit attesting to and testifying that they have lived separate and apart and that there exists irreconcilable differences between the spouses to such a degree and nature as to render their living together insupportable and impossible. In all such cases, the proceedings shall be entitled In the matter of ______ (petitioner) and his (or her) spouse _______ 2. Modern Grounds in the Era of No-Fault Divorce (a) La. CC. Art. 103 Judgment of Divorce; Other Grounds- Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that: *the spouses have been living separate and apart continuously for the requisite period of time, in accordance with article 103.1 or more on the date the petition is filed; *the other spouse has committed adultery; or *the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor (b) La. CC. Art. 103.1 Judgment of Divorce, Time Periods- The requisite periods of time, in accordance with articles 102 and 103 shall be as follows: *one hundred eighty days (1) where there are no minor children of the marriage, or (2) upon a finding by the court, pursuant to a rule to show cause, that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses, or (3) if, after a contradictory hearing, a protective order or an injunction has issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse and is in effect at the time the petition for divorce is filed. *three hundred sixty-five days when there are minor children of the marriage 3. NY CLS Dom Rel 170 Action for Divorce- An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(a) the cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or imporper for the plaintiff to cohabit with the defendant (b) the abandonment of the plaintiff by the defendant for a period of one or more years (c) the confinement of the defendant in prison for a period of three or more consecutive years (d) the commission of an act of adultery, provided that the adultery for the purposes of articles 10, 11, and 11a of this chapter, is hereby defined as the commission of an at of sexual intercourse, oral sexual conduct, or anal sexual conduct, voluntarily performed y the defendant with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision 2 of section 130.00 and subdivision three of section 130.20 of the penal law. (e) the husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such a decree or judgment (f) the husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed to by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as the agreement of separation and shall contain the following information: (1) the names and addresses of each of the parties (2) the date of marriage of the parties (3) the date of the agreement of separation and (4) the date of this subscription and acknowledgement or proof of such agreement of separation (g) the relationship between husband and wife has broken down irretrievably for a period of at least 6 months, provided that one party has stated so under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce 4. Adultery- in most states, adultery will include any sexual conduct of any kind and is not limited to coitus (a) sexual contact between members of the same sex will USUALLY qualify but has been rejected in New Hampshire (b) definitional issues are generally not a problem based on the largely expansive view of adultery

Menge v. Menge- Adultery Not Limited to Sex *man files for divorce, alleges wife committed adultery *woman argues that she never had sex with the man, though she did get naked with him in bed and engage in sexual acts including oral sex *ISSUE- can a person commit adultery without actually having sex? *RULES-(1) Blacks Law Dictionary defines adultery as voluntary sexual intercourse of a married person with a person other than their spouse (2) Webster defines sexual intercourse as (a) heterosexual intercourse involving penetration of the vagina by the penis: coitus; (b) intercourse involving genital contact between individuals other than penetration of the vagina by the penis (3) La. law recognizes homosexual sexual acts as adultery (4) oral sex constitutes adultery under La. CC. Art. 139 *HOLDING- BECAUSE the husband could prove and the wife admitted to engaging in sexual acts with the other man while naked in bed with him, the court found that the wife had committed adultery *NOTE- court slightly emasculated the rule here by holding that it did not believe that the wife did not actually have sex with the other man Curtis v. Curtis- Adultery Absent Proof of Affection of Intimacy *Mississippi Court held that wife had proved accusation of adultery by proving that husband lived off and on in the home of another woman in another city *evidence included pictures from private investigator of husband stringing Christmas lights in her home and husbands testimony that he spent Christmas there *husband argued he was only renting a spare bedroom while separated from wife -courts have held more than once that adultery is still adultery during a separation because only divorce actually terminates the marriage and adultery during separation effectively eliminates chances for reconciliation (not rule everywhere) (c) EVIDENTIARY issues are by far the biggest hurdle to a divorce for adultery *courts allow circumstantial evidence but generally require a great deal of it and will often require that the evidence effectively exclude any innocent explanation Spence v. Spence- Evidentiary Burden of Proving Adultery *woman divorces husband, alleges inter alia adultery *ISSUE- what degree of circumstantial evidence is sufficient to prove adultery? -HERE the plaintiffs evidence was testimony from herself and her cousin that (1) husband and woman would eat lunch together at the park (2) cousin overheard husband talking on the phone about taking off work and vacationing with woman (3) cousin saw woman leaving husbands apartment in a robe and pants (4) cousin saw husbands car parked in front of womans apartment overnight -HERE DEFENSE (1) lunch at park was just friendly conversation (2) cousin couldnt be positive who husband was talking about vacationing with (3) cousin didnt know what the woman had on underneath the robe (4) womans daughter had exact same car as husband

*RULES-(1) claim of adultery requires clear and convincing evidence (2) evidence must demonstrate (a) an adulterous inclination and (b) an opportunity to commit adultery (3) circumstantial evidence is admissible but the burden of proof remains high as evidence must be inconsistent of any reasonable theory of innocence *HOLDING- BECAUSE the evidence was only circumstantial and could not completely invalidate any innocent explanation the court found no proof of adultery Brown v. Brown *South Carolina Court finds adultery based on wifes testimony admitting to 2 dozen secretive meetings with alleged paramour in city parking lots combined with admissions of frequent phone calls, one-on-one lunches and kissing and fonlding Popham v. Popham- Wife permitted to introduce evidence of husbands prescription for Viagra (d) cyber-adultery- complex issue of allegations of adultery based off of online conduct- no U.S. court has ever had to rule on the issue of adultery carried out EXCLUSIVELY over the internet though a British court has found adultery where a mans avatar in Second Life had been having virtual sex with other avatars Bower v. Bower- Cyber Sex an Easy Issue Where People Also Meet in Reality *Mississippi Court couples promiscuous online activity with a womans trip to another city to meet the man she engaged in said activity with to infer adultery 5. Physical Cruelty- once a very difficult ground for a divorce, courts were surprisingly tolerant of slapping the wife around back in the day (a) standard used to be physical harm or threats of physical harm substantial enough to be deemed reasonably intolerable Boldon v. Boldon- not every occurrence of actual violence constitutes a ground for divorce. It is only actual violence, or threats inducing the reasonable apprehension of violence, of a degree attended with danger to life or health that is a ground for divorce. Das v. Das- Modern Jurisprudence Reflects Progressive Condemnation of Abuse *husband and wife have arranged marriage in India before moving to Maryland -marriage of subservience in that culture according to the wife *protective order issued against husband by court in response to complaint of domestic violence, husband in response, takes daughter and runs to India, eventually returns, wife files for divorce on grounds of cruelty by husband *ISSUE- does, pinching, isolation from family/friends, forcing someone to stay up all night, threatening them, pulling hair and other psychotic treatment rise to the level of cruelty as grounds for divorce? *RULES-(1)a single act may be sufficient to constitute basis for divorce for cruelty if it indicates an intention to do serious bodily harm or is of such a manner as to threaten serious danger in the future (2) cruelty as a cause for divorce includes any

conduct on the part of the husband or wife calculated to seriously impair the health or destroy the happiness of the other (3) persons subject to domestic abuse should be entitled to seek absolute divorce immediately without a waiting period prior to filing of complaint (4) verbal and physical abuse may have been tolerated in another era and our predecessors at bar may have placed the continuity of the marital bond above the well-being of individual participants, but our values are different today. *HOLDING- YES it was cruelty sufficient for a divorce 6. Mental Cruelty- also called indignities (a) requires a showing of habitual, continuous, permanent and plain manifestation of settled hate, alienation and estrangement on the part of one spouse sufficient to render the condition of the other intolerable- Anderson v. Anderson (b) kind of a catch all ground, can be used for a wide variety of conduct Alfaro v. United States-actual bodily harm or apprehension need not be shown Waltenberg v. Waltenberg- humiliating someone by reducing them to tears in public held to be cruelty Cochran v. Cochran- husbands actions toward terminally ill wife including mocking her in front of others, shouting obscenities at her, telling her he wished she were dead, qualified as cruelty Hyberston v. Hyberston- husband making religious conversion and no longer being able to have conversation with wife, just repeatedly telling her that she wouldnt go to heaven and he was only there to educate her and their children about how to get on the path to heaven, constantly quoting bible found to be cruelty (c) some courts have held that the quantum and quality of cruelty required to justify a marriage on that ground is higher in a long marriage than it is for a short one Spence v. Spence- Couple married for 20+ years, wife not granted divorce for mental cruelty when only evidence offered was arguments *same case where wife couldnt prove adultery 7. Desertion or Abandonment- simply put, a spouse is guilty of desertion sufficient as grounds for divorce when (1) he leaves the marital home for a statutorily set period of time (often a year) with (2) the intent to desert or abandon the home with (3) the absence of the other partys consent and (4) the absence of justification (a) many states ALSO require the other spouse to make attempts to convince the deserting spouse to come back home and for the spouse to refuse these attempts as well (b) intent is the decisive element and is a question of fact

(c) some states also recognize constructive desertion- one spouses behavior pushes the other spouse to desert/abandon the home, cause of action may overlap with that for cruelty C.P. v. G.P.- husbands refusal for 12 years to share a meal, attend family events, engage in any conversation other than briefest exchanges and sleep with his wife did NOT constitute cruelty but DID state a case of constructive abandonment B. Defenses and Bars for Fault Grounds 1. Recrimination- based on the unclean hands notion, a spouse accused of a fault ground in a divorce proceeding could defend himself by successfully proving that the complaining spouse was also guilty of a fault ground (a) a claim for divorce for adultery could be defeated by proving adultery on the part of the complaining spouse (b) some courts would weigh the guilt of both parties and make an equitable decision based on who was more guilty, so a claim for divorce for mental cruelty could be defeated by proving adultery by that spouse *BUT a claim for divorce for adultery could NOT be defeated by proving mental cruelty by the complaining spouse (c) La. CC. Art. 141 Separation; Mutual Fault; Alimony Pendente Lite; Permanent Alimony- A separation from bed and board shall be granted although both spouses are mutually at fault in causing the separation. In such cases, alimony pendent lite may be allowed but permanent alimony shall not be allowed thereafter following divorce. (principle continues to exist even though this article is no longer in the civil code after 1990) 2. Condonation- essentially forgiveness on the part of the spouse that had the complaint (a) La. CC. Art. 104 Reconciliation- The cause of action for divorce is extinguished by the reconciliation of the parties (b) forgiveness usually conditional on some kind of promise not to repeat the conduct that created the ground followed by keeping the promise, condonation would be wiped out by repeating the conduct after Tablada v. Tablada- Conditional Reconciliation *couple separates, court orders husband to pay child support and alimony *husband asks wife to reconcile, she agrees if he meets 2 conditions -stop cheating and attend marriage counseling *husband agrees, then fails to meet conditions *ISSUE- where parties agree to reconcile depending on certain conditions and those conditions are not met, have the parties reconciled sufficient for a defense to a divorce action? *RULES- (1) to reconcile a marriage both parties must make diligent efforts toward reconciliation (2) reconciliation is a factual determination based on all of the pertinent circumstances *HOLDING- BECAUSE the parties agreed to reconcile but only on certain conditions AND BECAUSE the husband failed to meet those conditions the court found no

reconciliation, NOTED that the husband only requested reconciliation after the court initially awarded alimony and child support Tigert v. Tigert- Court holds that fault may be revived (condonation revoked) by conduct insufficient to be a new ground for divorce by itself, but when viewed in light of the circumstances raise a reasonable probability that if the marriage were to resume a new cause for divorce will arise *conduct cant merely be slight acts of coldness, unkindness or mere quarrelling (c) once conduct is condoned it cannot be used as ground for divorce unless the conduct is then subsequently repeated, cant arbitrarily revoke condonation (d) condonation can be express or implied by conduct *implied condonation generally found where parties have had sex or resumed cohabitation after a break in cohabitation Jordan v. Jordan- Implied Reconciliation/Condonation & Abandonment *wife gets judicial separation from husband, later they get back together before the husband then leaves again and wife files for divorce for desertion *ISSUE- does a couple reconcile where they resume cohabitation and sex though they make no express agreement to reconcile? *RULES- (1)reconciliation is a matter of mutual intent, judicially determined in light of all of the circumstances (2) proof of isolated acts of sexual intercourse between the parties is not conclusive of intent to reconcile but is one of the factors considered in determining mutual intent *HOLDING- BECAUSE the parties resumed living together and having sex for several months after the separation they DID reconcile BUT BECAUSE the husband then left the home AGAIN AFTER the reconciliation he was then guilty of abandonment In Re Marriage of Hightower- Factors Considered in Condonation Determination *court considers -expressions of forgiveness -fact of cohabitation -length of time parties cohabitated after injured spouse learned of misconduct -whether cohabitation was result of necessity -whether the parties continued to have sex *HERE the court holds that the wife condoned the husbands adultery because -parties continued living together for several years after he admitted it -no evidence that they lived together out of necessity -spouses shared bedroom and domestic duties and continued to have sex 3. Insanity- hinges on the old idea that divorce was about punishing a party at fault, if party could prove that the conduct creating grounds for the divorce was the result of insanity then he was not responsible for the conduct and could not be punished (a) husband proves his physical attack on his wife was induced by paranoid schizophrenia might survive an action for divorce for physical cruelty (b) causation is the difficult part of proving this defense

(c) whore doctor expert witnesses can give anybody a shot at this defense Seltzer v. Seltzer- Nearly Impossible to Use Insanity as Defense for Adultery *woman sleeps with another an a couple of times while her and husband were living apart going through rough patch- claims insanity *ISSUE- IF a spouse can prove theyre mentally ill, can they use that illness to establish insanity defense to action for divorce for adultery? *RULES- (1) insanity can be a defense to a cause of action for fault-based divorce (2) a party claiming insanity as a defense must prove that the mental illness claimed actually caused the conduct that created the cause of action *HOLDING- BECAUSE the wife couldnt prove causation, her defense of insanity fails 4. Collusion- if the court finds that the spouses staged a fake scenario to create grounds for a divorce it will deny the divorce (a) not so much of an issue now in the era of no-fault divorce (b) once a cottage industry in New York, people would hire a company that would place the husband in a hotel room with a woman wearing a pink neglige and the wife and a private investigator would always storm in and take pictures (c) court can do sua sponte determination if it suspects collusion 5. Connivance- where one party actually consents to the conduct of the other that created the fault grounds (a) most common in actions for divorce for adultery- spouse may claim that the spouses were swingers (b) different from collusion in that its not staged, its the real consent to real conduct that apparently wasnt strong enough to stop the other spouse from changing her mind 6. Provocation- defense that the spouse accused of conduct creating grounds for divorce was actually provoked into such conduct by the other spouses own misconduct (a) determined by proportionality test- provoking spouses conduct need not reach level to be grounds for divorce in its own right, but must be bad enough that the other spouses reaction wasnt disproportionate (b) very difficult defense, rarely works C. No-Fault Divorce- Divorce granted without either side alleging fault on the part of the other 1. one party must file a petition alleging that the parties must live separate and apart for a statutorily set period of time and their marriage has suffered an irretrievable breakdown also called irreconcilable differences Richter v. Richter- Irretrievable Breakdown and Marriage as Contract *wife files for no-fault divorce claiming marriage suffered irretrievable breakdown -husband moves to dismiss arguing that (a) there was no such breakdown and (b) Minnesotas laws allowing divorces under such circumstances were a violation of his constitutional right to contract

*ISSUE- does a divorce law allowing for a divorce based on factual determination that a marriage has irretrievably broken down violate the constitutional right to contract? *RULES-(1) courts reserve the right to determine, based on the facts, whether a marriage has suffered an irretrievable breakdown (2) irretrievable breakdown is defined as a marriage having no prospect of reconciliation (3) proving irretrievable breakdown requires (a) parties have lived separate and apart for statutory set time period and (b) there is serious marital discord adversely affecting the attitudes of both parties (4) marriage is a contract ONLY for the sake of determining its validity (ie capacity, consent etc) and NOT for the normal purposes *HOLDING- BECAUSE marriage is not a contract for the normal purposes of the term it does not violate the constitution to allow one spouse to dissolve the marriage through the no-fault system where the other spouse fails to make any argument against that spouses claims (a) time periods vary from jurisdiction to jurisdiction- creates divorce tourism where people run to a certain state to get a no-fault divorce then go back home 2. La. CC. Art. 103 Judgment of Divorce; Other Grounds- . a divorce shall be granted on the petition of a spouse upon proof thatthe spouses have been living separate and apart continuously for the requisite period of time, in accordance with article 103.1 or more on the date the petition is filed Adams v. Adams- Living Separate and Apart & Intent (Old Rule) *husband committed to mental hospital after threatening his wife with a machete *wife files for divorce claiming that she and husband had lived separate and apart for more than the statutorily required one year *ISSUE- where one spouse to a marriage is committed to a mental hospital and does not consent to living separate from the other spouse are the spouses living separate and apart for the sake of a no-fault divorce? *RULES-(1) La. CC. Art. 103(1) When the spouses have been living separate and apart continuously for a period of one year or more, either spouse may sue and obtain a judgment of absolute divorce (2) separation contemplated by the statute must be voluntary on the part of at least one of the parties (3) voluntariness of separation is established when one party evidences her intent to put an end to the marriage (4) evidence that the parties have stopped cohabitation alone is not enough (5) from the point that one party evidences desire to end marriage AND the parties begin living separate and apart the statutory period begins to run 3. La. CC. Art. 102 Judgment of Divorce; Living Separate and Apart Prior to Rule (Current No-Fault Divorce Rule)- Except in the case of a covenant marriage, a divorce shal be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Art. 103.1 has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Art. 103.1, prior to the filing of the rule to show cause.

(a) The motion shall be a rule to show cause filed after such delays have elapsed 4. La. CC. Art. 103.1 Judgment of Divorce, Time Periods- The requisite periods of time, in accordance with Arts 102 and 103, shall be as follows (a) 180 days *where there are no minor children of the marriage, or *upon a finding by the court, pursuant to a rule to show cause, that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses, or *if, after a contradictory hearing, a protective order or an injunction has issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse and is in effect at the time the petition for divorce is filed (b) 365 days where there are minor children of the marriage 5. some jurisdictions allow liberal interpretation of living separate and apart and allow for the period to run while the parties are continuing to live in the same house Frey v. Frey- Separate and Apart Under One Roof *husband files for divorce from wife claiming theyve lived separate and apart for the statutorily required period of time- wife argues that he lived in the house the entire time and theyd tried to reconcile *ISSUE- has a couple lived separate and apart if theyve remained under the same roof even if they stop eating meals together and sleep in different rooms and only spend time together for the benefit of their child? *RULES-(1) Pennsylvania law allows no-fault divorce when parties have lived separate and apart for at least 2 years (2) separate and apart means a complete cessation of any and all cohabitation whether living in the same residence or not (3) cohabitation means the mutual assumption of those rights and duties attendant to the relationship of husband and wife thus separate and apart means separate lives not roofs (4) isolated attempts at reconciliation do not begin anew the marriage *HOLDING- BECAUSE the husband ate most meals at his moms house, slept in a separate room and ONLY went out in public or ate with the wife for his daughters benefit the court held that the spouses had lived separate and apart *NOTE- the court noted conflicting testimony as to the spouses sexual relations hinting occasional sex wouldnt be enough for cohabitation but regular sex might 6. attempts at reconciliation CAN interrupt living separate and apart BUT they must be sufficient to constitute the parties resuming married life Pearson- Reconciliation Must Reach Point of Resuming Married Life *court finds that attempts at reconciliation, including living together again for 6 months, was not enough to offset the prior period where the parties lived separate and apart for the statutory time needed for a no fault divorce 7. some jurisdictions only allow no-fault divorce, others retain the option for a fault based divorce

(a) in hybrid jurisdictions a spouse with an axe to grind might want a public declaration of the other spouses fault (b) a determination that one spouse was at fault can have major implications in child custody, division of property, award of alimony etc Watters v. Watters- Louisianas a Hybrid Jurisdiction *husband files for no-fault divorce under Art. 102 -wife files answer inter alia alleging adultery by husband *ISSUE- can a court rule on an action for no-fault divorce if the spouse that didnt file the action answers it with allegations of fault by the other party? *RULES-(1) parties may STILL litigate claims of fault even after a court has granted a no-fault divorce (2) a defendant to a claim for no fault divorce does not need to file an answer to the claim *HOLDING- no-fault divorces are meant to streamline the process of divorce and BECAUSE a spouse may still litigate a claim of fault by the other spouse AFTER a court grants a no-fault divorce, the court does not need to suspend a proceeding for a no-fault divorce to hear claims of fault (c) a Louisiana defendant in a no-fault divorce claim does have the right to a rule to show cause why a divorce should NOT be granted- Tomeny v. Tomeny 8. Jurisdiction Over No-Fault Divorce and Commity- a spouse does not need the other spouse to be under the personal jurisdiction of a states courts to obtain a nofault divorce in that state (a) other states will recognize divorces granted in a state because of doctrine of comity- meant to make life easier for everybody and is a show of respect to that states sovereignty *BUT due process requires that some minimal standards be observed so comity is NOT an absolute rule *applies to foreign countries as well so countries like Mexico and the Dominican Republic which have grown infamous for easy divorces cannot always be relied upon and divorces from those nations might not survive a challenge in court- Mexico stopped granting divorces to non-Mex citizens when the U.S. threatened to stop recognizing them (b) for a divorce granted in a state with only one spouse present to be valid, that spouse must be domiciled in that state, domicile requires * residency- usually for a statutorily set period of time *intent to make that state ones home indefinitely- proven by things like getting a drivers license in that state, getting a job etc Williams v. N.C.- The Domicile Rule *man leaves wife in N.C. goes to Nevada where he files for divorce, then remarries *moves back to N.C. where he and new wife are arrested for criminal bigamy, appeals the arrest arguing that he was divorced and remarried *court finds that he satisfied the domicile test in Nevada reverses conviction

Williams II- Due Process and Domicile Rule *court overturns the reversal in Williams I *court holds that BECAUSE Nevadas court never reviewed the evidence of the husbands domicile there when granting his divorce then his subsequent marriage that the process did not satisfy procedural due process Sherrer v. Sherrer- Jurisdiction Stays With State Granting Divorce *wife leaves husband in Mass. goes to Fla. satisfies the statutory residence requirement (short in Fla.) files for divorce -husband argues no domicile and loses, does not appeal *wife moves back to Mass. with new husband, old husband files for a divorce from HER on the grounds of desertion- Mass. court holds that the initial domicile was a sham because it was solely for getting divorce and had no intent of living in Fla *US Supreme court holds that the court in Fla already made a factual determination on the wifes domicile in that state and that could not be challenged in a Mass. court -husband could only challenge the rule in Flas courts of appeals Sosna v. Iowa- States Right to Set Divorce Laws *woman moves to Iowa for a divorce, domicile requirement in Iowa is one year *woman had intent but not residency, sues the State arguing that state law interfered with her constitutional right to marry/divorce as she pleased *Supreme Court holds that if Iowa wants to set their laws to avoid becoming a divorce mill that was their right V. Economic Consequences of Divorce *La. CC. Art. 105 Determination of Incidental Matters- In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support of a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property A. Property Division 1. La. CC. Art. 2328 Contractual Regime; Matrimonial Agreement- A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement, a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. 2. La. CC. Art. 2334 Persons; Scope of Application of the Legal Regime- The legal regime of community of acquets and gains applies to spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage. 3. Title Theory aka Separate Property- ownership of property remains with the person who holds title to the property (ie who bought it)

(a) once the only regime for marital property- men used to own all property in a marital home (coverture) and women owned nothing- lead to extremely inequitable arrangements for women upon divorce (b) NOW the small handful of states that still use this system ONLY apply it to property DURING the marriage, so the spouse with title to the property can do what he/she wants with it without the consent of the other spouse BUT upon divorce the property is split up by equitable distribution (see 5 below) 4. Community Property- all property acquired by either spouse during the marriage is community property and each spouse retains a interest in the property (a) marriage often referred to as a partnership and both spouses must have the consent of the other one to dispose of the property (b) exceptions to community property *gifts given specifically to one spouse *property acquired before the marriage *some property bought exclusively with one spouses money and specifically and expressly designated as separate property (c) regime came to America through Mexico to California and France to Louisiana *Cal, La, AZ, Id, Nev, NM, TX, Wash, are all community property states *Cal, La, NM all strictly apply policy and split all property in half upon divorce 5. Equitable Distribution- used in non-community property regimes, attains a virtually identical result, also rests on concept that marriage is a partnership or joint enterprise and distributes property between the spouses based on each spouses contributions (financial, emotional, domestic etc) to the marriage/household (a)equitable distribution jurisdictions usually exclude from the definition of marital property: *property acquired before the marriage *property acquired by gift or inheritance specifically to one spouse *property excluded by valid agreement between spouses such as found in a premarital agreement *property that is directly traceable to any of the above sources- so a car bought with money derived exclusively and directly from an inheritance (b) where a spouse contributed to marital property and can document that contribution he may be entitled to reimbursement for that contribution *ex. Wife contributes $10K for down payment on house, entitled to reimbursement (unless she just gets the house which seems more likely) (c) where spouses have minor children the courts tend to award the house to the spouse who gets physical custody 6. More Equitable Distribution Pennsylvania Statute- Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just, after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors which are relevant to the equitable division of marital property include the following (a) the length of the marriage

(b) any prior marriage of either party (c) the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties (d) the contribution by one party to the education, training or increased earning power of the other party (e) the opportunity of each party for future acquisitions of capital assets and income (f) the sources of income of both parties, including but not limited to, medical, retirement, insurance and other benefits (g) the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker (h) the value of the property set apart to each party (i) the standard of living of the parties established during the marriage (j) the economic circumstances of each party, including federal and state and local tax ramifications at the time of the division of property (k) whether the party will be serving as custodian of any children Ketterle v. Ketterle-Weight of Factors is Fact-Specific *husband and wife divorce, judge gives wife between 68 and 62% of marital assets *bases her decision largely on the large gap in earning capacity of each spouse -husband was an esteemed professor/researcher who made more than $179K per year while the wife made just over $7K per year -wife was mentally fragile heavily medicated, recently tried to kill herself Wade v. Wade- Extremely Lopsided Award Equitable Under Circumstances *wife got 90% of the marital property -wife had bought house -wife worked full time -husband worked sporadically by choice -husband was not a homemaker even when unemployed -husband ran up massive credit card debt which wife paid 7. Kitchen Sink Approach- 14 states follow some variation that allows the court to consider the division of ALL property regardless of how or when it was acquired (a) sometimes called the all property method or hotchpot method (b) can make distribution more equitable (in some peoples opinions) but can also make the division of property much more contentious 8. Characterizing Assets as Marital or Separate- very important, affects many aspects of a distribution of property (a) in equitable property jurisdictions, the amount of separate property owned by each spouse affects how the court will distribute the marital property later in hopes of reaching an equitable result (b) to be a gift intended for one spouse there must be donative intent, 3 elements *an intention on the part of the donor to make an immediate gift of property *delivery of the property to the donee, AND *acceptance of the gift by the donee

(c) the initial character of property may change as the marriage goes on, either by transmutation or comingling *transmutation- when separate property is treated in such a way as to evidence an intention that it becomes marital property *comingling- separate property is inextricably mingled with marital property OR with the separate property of the other spouse Nack v. Edwards Nack- Transmutation, Comingling & Hybrid Property *husband argues that the court erred in categorizing (1) an investment portfolio (2) a Mercedes (3) a Lexus and (4) buffalo and other farm equipment as marital property *RULES- (1) marital property is all property titled in the names of both parties whether as joint tenants, tenants by the entirety or otherwise (2) when property in one classification has been contributed to property of the other so that is loses its identity the classification of the contributed property is transmuted to that of the property receiving the contribution HOWEVER (3) to the extent that contributed property is retraceable by a preponderance of the evidence and was not a gift, such contributed property shall retain its original classification (4) to trace separate part of hybrid property party must prove claimed separate portion is identifiably derived from separate asset (5) if party comingles marital and non-marital funds to the point that tracing is impossible the claimed separate funds lose their separate status (6) if party CAN prove that some part of an asset is separate BUT cant prove how much money put into it is separate then its all marital *INVESTMENT PORTFOLIO- BECAUSE the husband and wife both deposited money into the joint checking account from which the check that established the portfolio was drawn AND BECAUSE the portfolio was in both of their names it was marital -BECAUSE an annuity that was also purchased with a check from that account was titled in husbands name alone, the money for that WAS retraceable to the husbands separate property and remained his *MERCEDES- BECAUSE the wife paid for maintenance on the car it MIGHT have been hybrid property but a prenuptial agreement kept it in husbands name *LEXUS- BECAUSE (a) the car was husbands separate property before the marriage AND (b) the wife made no contributions to the car AND (c) the spouses had a prenup on the Lexus too it remained the husbands separate property *BUFFALO/FARM EQUIPMENT- BECAUSE the farm stuff was purchased from a joint checking account it was presumably marital property and the husband could not retrace his separate funds from the account because both spouses made deposits and withdrawals from it Middendorf v. Middendorf- Appreciation of Value of Separate Property *dispute over how to categorize the monetary appreciation of value of a stock yard that was the husbands separate property during the marriage *RULE- if separate property appreciated in value because of the expenditure, labor or efforts of either or both spouses during the marriage then that appreciation is marital property BUT if the asset appreciated on its own (passive appreciation) THEN that value remains separate

*HOLDING- BECAUSE the husband had exerted efforts to increase the value of the stock yard the appreciation of value that accompanied it was marital property *NOTE- the lower court initially held that because the wifes domestic contributions to the household freed the husband to work on the stock yard THATs what entitled her to a share of the appreciation but the appellate court held that there was no need to get into that determination based on the plaint text of the law *NOTE II- THIS IS NOT THE RULE EVERYWHERE some states say appreciation of separate property stays separate no matter what 9. Homemaker Contributions- in light of equitable distribution, which does strive for a close to equal distribution, the need for this is debated but there are 3 different methods for valuation (a) cost of replacing a homemakers contributions with paid employees- ie the cost of a maid and babysitter (b) the lost opportunity costs borne by the homemaker- did the wife graduate from law school then never take a job? *this approach criticized by feminists who say that this fails to recognize the ENHANCED opportunities given to the husband who can become the ideal employee by not having to bother with domestic duties (c) econometric models based on economic theory and statistical analysis 10. Debts and Liabilities accumulated during a marriage are also marital property subject to division Sunkidd v. Snyder- Distribution of Debts *married couple lived in an apartment, husband unilaterally extended the lease w/out consulting wife, wifes signature never on the lease *couple divorces, husband defaults on debt owed to landlord for back rent *RULES- (1) debts incurred during marriage are community (2) presumption of community debt may be rebutted by proving that the debt was not incurred for the benefit of the community (3) rental of a home is a community expense *HOLDING- the ex-wife was liable for the debt in community B. Spousal Support AKA Alimony 1. La. CC. Art. 111 Spousal Support; Authority of Court- In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles. 2. La. CC. Art. 117 Peremptive Period for Obligation- The right to claim after divorce the obligation of spousal support is subject to a preemption of three years. Preemption begins to run from the latest of the following events; (a) the day the judgment of divorce is signed (b) the day a judgment terminating a previous judgment of spousal support is signed, if the previous judgment was signed in an action commenced either before the signing of the judgment of divorce or within three years thereafter

(c) the day of the last payment made, when the spousal support obligation is initially performed by voluntary payment within the periods described in Paragraph (a) or (b) and no more than three years has elapsed between payments 3. Justifications for Alimony Awards and Their Problems (a) fault based- the original justification for alimony based in the old notion that divorce was a matter of punishing a guilty party and rewarding an innocent one, somewhat lost in the era of no-fault divorce, three issues; *determination of fault requires the kind of dirty laundry fact finding that no fault divorce was, in part, created to avoid *overly complex since most divorces stem from some degree of mutual fault *rewarding innocent party and punishing guilty one often diminishes the importance of other factors such as economic need (b) need based- reflection of fact that most divorces leave one spouse in dire financial straits and the intuition that the other spouse has an obligation to remedy that situation because it, in part, likely resulted from a bread winner-home maker family model that made one spouse financially dependent on the other, issues; *definition of need varies wildly from jurisdiction to jurisdiction, some courts order alimony awards designed to maintain the receiving spouses standard of living during the marriage while others only award the bare necessities (c) contract theory- analogizes marriage to a contractual relationship where both parties make sacrifices for the other as the consideration and alimony as damages for a breach of said contract, issues; *contract analogy requires a court to examine how the contract was breached which returns to a fault based system BUT this is never the case as courts tend to weigh need as the most important factor so a financially dependent wife who shoots her rich husband in the leg will NEVER be ordered to pay alimony even though she was the one who breached the contract (d) partnership theory- suggests that spouses, like members of a partnership, have an implied agreement to work together for their mutual benefit and upon divorce, alimony assures that each spouse takes responsibility for the burden of the failed relationship, alimony would resemble the buyout of a partner who dissociates from the partnership to give that partner his/her fair share of the value he/she added to the partnership, issues; *partnerships normal standards of valuating contributions are difficult to apply to a marriage where the spouse receiving alimony generally has made domestic contributions that dont easily fit an economic analysis *the central purpose of a marriage isnt to make profit but instead to foster love, commitment and all of that crap so its awkward and unpredictable to assign monetary value to those goals (e) restitution theory- an outgrowth from the contract theory in that it acknowledges that marriages dont include express agreements for the exchange of services but instead looks to alimony as a kind of award to avoid unjust enrichment so a homemaker who works without pay to aid her husbands career advancement

may argue that she is partly responsible for her ex-husbands financial success and her efforts behind that success came at the expense of her own wage earning capacity because she removed herself from the labor force to make those contributions, issues; *difficult to show that a spouse performed domestic duties with the expectation of financial compensation, theyre wives not maids *if restitution requires proof that a spouse has lost wage earning capacity then the court must determine what that realistic capacity would be, highly difficult to do since often times a non-working spouses last paid job likely did not pay a wage representative of what she could have made over the course of a long term career, ie a wife couldve been the receptionist that 20 years later is the office manager, OR she couldve been the receptionist that 20 years later is still the receptionist (f) reimbursement theory- works as a time limited form of alimony based on paying a spouse for specific benefits she conferred to the other spouse, in contrast to most permanent or other forms of temporary alimony reimbursement based alimony does not terminate upon the remarriage of the spouse, designed to specifically compensate one spouse for the enhancement in earning capacity of the other that she aided in, typically through support for graduate or professional school, issues; *sometimes difficult to determine how much alimony is appropriate under this justification, courts try to pinpoint contributions one spouse made to the others advancement but only with the clear understanding that she was doing it for the sake of the mutual economic benefit of both spouses *some have questioned whether this is really alimony or more of a form of equitable distribution of property since its based on past contributions and not on future needs 4. ALIs Compensation for Loss- American Law Institute advocates for an approach to alimony that makes its determination based on compensation for one spouse who lost some degree of earning capacity as a result of the marriage, removes any consideration of fault and instead focuses solely on the differences in the spouses financial standing (a) criticized as once again failing to provide any justification as to WHY a nonneedy spouse should be burdened with supporting his needy ex-spouse (b)ALSO criticized for again failing to determine what need really means 5. Alimony Pendente Lite- temporary alimony that a spouse receives during the course of the divorce proceedings (a)determined almost exclusively by need so that the receiving spouse can support herself during the divorce (b) generally courts award alimony pendent lite based on the dependent spouses reasonable needs and the other spouses ability to pay (c) La. CC. Art. 113 Interim Spousal Support Allowance Pending Final Spousal Support Award- Upon motion of a party or when demand for final spousal support is pending, the court may award a party interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying

final spousal support or 180 days from the rendition of judgment of divorce, whichever comes first. The obligation to pay interim spousal support may extend beyond 180 days from the rendition of judgment of divorce, but only for good cause shown Desormeaux v. Montgomery- Alimony Pendente Lite Based on Husbands $$$ *court amends lower courts award of alimony pendent lite from $300/month to $500/month because the lower court only based its award on the husbands actual paychecks for his job and not on all of his sources of money *court holds that alimony is based not only on paychecks from a job but instead includes consideration of stocks and bonds, rent payments for a warehouse that the husbands parents had been making to him, cash withdrawn from a business that husband owned, and savings the husband had *court emphasizes rule that in determining temporary alimony, examination of the husbands means to pay are not limited to income but include all financial means 6. Final Awards of alimony- handed out at the conclusion of a divorce and the end of alimony pendent lite, several different types awarded based on circumstances (a) rehabilitative alimony- also known as transitional or short term alimony, support is provided for a definite period while the receiving spouse seeks to become self supporting often through education or job training *most states that award this type of alimony attach modifiable ending dates such as completion of a degree or job training program *most also attach conditions of rehabilitative efforts such as enrollment in school or application for employment and will cut off alimony if reasonable efforts toward rehabilitation are not carried out (b) reimbursement alimony- handed out under the reimbursement theory that rewards a spouse for support she gave to help the other achieve higher earning capacity through education and/or professional licensing *many states require that reimbursement only be paid for contributions made with the understanding that they were given to further some advanced training or education with the understanding that both spouses would later share in the benefits of it (c) bridge-the-gap alimony- limited duration alimony, recognized by few states, that is specifically tailored toward meeting identifiable short term needs that are not expressly rehabilitative in nature (d) permanent, indefinite or periodic alimony- the spouse receives support for an indefinite period of time from final order of dissolution of the marriage until death or remarriage, generally only granted in situations where the receiving spouse through illness, age or disability cannot reasonably expected to become self supporting or the difference in living standards without alimony would be unconscionable *permanent alimony is the exception not the rule (e) lump sum alimony- awarded often in non-litigious divorces, sometimes awarded in place of period or set term payment alimony where the paying spouse has a

substance abuse problem or other issue that makes the court skeptical of that spouses ability/willingness to pay long term *sometimes this is a variation of rehabilitative alimony where the rehabilitation can be paid for all at once like tuition for a final year of college Russell v. Russell- Lump Sum & Relevant Factors to Award *court awards alimony for wife of wealthy husband, part of award is lump sum alimony which the court uses to hand over the $2.5 mil house over to the wife *court holds that in considering all of the relevant factors for an award of alimony, it felt that standard of living, financial resources of each party and contributions of each party to the marriage were the most relevant *no doubt the role of the wifes parents, who had at one point employed both the husband and wife and had over the years given both spouses considerable sums of money a great portion of which was used to buy the house at issue, was a major factor in this determination 7. Uniform Marriage and Divorce Act sec. 308 Maintenance (a) In a proceeding for dissolution of marriage, legal separation, or maintenance *** the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance; *lacks sufficient property to provide for his reasonable needs; and *is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home (b) The maintenance order shall be granted in amounts and for periods of time the court deems just, without regard to marital misconduct, and after considering all relevant factors, including; *the financial resources of the party seeking maintenance, including marital property apportioned to him, his ability to meet his needs independently, and to the extent to which a provision for support of a child living with the party includes a sum for that party as custodian *the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment *the standard of living during the marriage *the duration of the marriage *the age and the physical and emotional condition of the spouse seeking maintenance; AND *the ability of the spouse from whom maintenance is sought to meet his own needs while still meeting those of the spouse seeking maintenance 8. La. CC. Art. 112 Determination of Final Periodic Support- The court must consider all relevant factors in determining the entitlement, amount and duration of final support. Those factors include; (a) the needs of the parties (b) the income and means of the parties, including the liquidity of such means (c) the financial obligations of the parties (d) the earning capacities of the parties

(e) the effect of custody of children upon a partys earning capacity (f)the time necessary for the claimant to acquire appropriate education, training, or employment (g) the health and age of the parties (h) the duration of the marriage (i) the tax consequences to either or both parties *the sum awarded under this article shall not exceed one-third of the obligors net income In Re Marriage of Reynard- Income Equalization *couple gets divorced, husband stuck paying for the house, two cars and daughters college expenses *court holds that wife is entitled to alimony in amount of $1,600/month- wife worked to help husbands campaigns for states atty, wife gave up career in teaching to move with husband and raise their children *court does NOT increase award to the point where her income would be equalized with that of husband ($3K/month) holding that this was not a situation for income equalization *income equalization- appropriate where one spouse has no earning capacity or very little capacity and the other spouse has a high capacity and both situations exist because the spouse receiving alimony sacrificed her own capacity to help improve the other spouses capacity *HERE the court holds thats not the case as the wife had worked part time during the marriage AND the husband was the one who was stuck with all of the debts of the marriage (2 cars, house, daughters college expenses) Allen v. Allen- Fault & Alimony *prior to marriage woman had severe financial troubles, during the marriage wife developed several conditions that eventually left her disabled and unable to work *husband and wife divorced, court held that the wife was not entitled to alimony because she was at fault -monetary irresponsibility -expenditure of approx. $8K for her daughters wedding (from prior marriage) -quarreling/arguing *court reverses holding and remands for determination of alimony -monetary irresponsibility was known to husband prior to marriage and she did not go bankrupt until after he had abandoned the marriage anyway -payment for daughters wedding was result of misunderstanding and a disagreement stepdaughters wedding expenses is not grounds for legal fault -isolated instances of arguing, complaining and quarreling are an unfortunate concomitant of almost all marriages and they do not generally arise in a vacuumthere was some suspicion that the husband had cheated on the wife and when pressed about the subject at trial the husband testified that the couldnt remember if he had any extramarital affairs- court holds that the wifes illness and the spectre of adultery made her conduct more forgiveable as well

9. La. CC. Art. 114 Modification or Termination of Award of Periodic Support- An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstance. 10. La. CC. Art. 115 Extinguishment of Spousal Support Obligation- The obligation of spousal support is extinguished upon the remarriage of the oblige, the death of either party, or a judicial determination that the oblige has cohabited with another person of either sex in the manner of married persons. 11. La. CC. Art. 116 Modification of Spousal Support Obligation- The obligation of final spousal support may be modified, waived, or extinguished by judgment of a court of competent jurisdiction or by authentic act or act under private signature duly acknowledged by the oblige 12. LRS 9311 Reduction or Increase in Support; Change in Circumstances (a) An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. (b) A judgment for past due support shall not of itself constitute a change in circumstances of the obligor sufficient to reduce an existing award of support Richard v. Richard- Modification of Rehabilitative Alimony Award *court reduces alimony award for wife who, after the initial award, graduated from college and had an increased earning capacity EVEN THOUGH she had not accepted a job at that time and her ACTUAL earning had not changed *wife had received two different job offers but turned both of them down Martindale v. Martindale- Change in Circumstances for Modification of Alimony *court orders an extension of an award of rehabilitative alimony because of a change in circumstances that prevented the wife from rehabilitating herself *2 of the couples 4 children (all of which lived with mom) developed severe learning disabilities after the initial award and taking care of them was too time consuming for her to get full time employment Garcia v. Garcia-Termination of Alimony for Cohabitation *court terminates award of alimony because ex-wife was cohabiting *ex-wife testified to inter alia living with another woman, sharing a bed, having sexual contact and sharing living expenses *court overturned trial courts holding that cohabitation to end alimony had to be with someone of the opposite sex C. Child Support- three formulas to know for the exam 1. Nelson Formula- set aside from the incomes of each parent enough money for each parent to continue to work (not just live but work so transportation, suits, bar dues etc) then all the rest of the monthly net income of each parent is available for child support

(a) judicially driven from case law so theres no statute to look to for it, (b) came from Delaware (c)simple truly puts kids first and does not involve any complex formula (d) sounds like a steep price 2. Flat Percentage Rate Mechanism- considers only the payors income and assumes an adjustment for the payees contribution by a set percentage, its a rising percentage based on number of children and income so the more money you make the higher ther percentage and the more kids you have the higher the percentage (a) % will rise with income (b) makes things relatively uniform and therefore more predictable and fair (c) from Wisconsin 3. Income Shares Formula- adds together both parents adjusted incomes, finds the basic level of support owed based on childs need and % of the income and provides for additional expenditures like medical expenses and deductions made as needed for non-basic needs (a) can get overly complicated (b) this is the system used in La. Hermesmann v. Seyer- Kansas Court sets precedent that even the victims of statutory rape have to pay child support for resulting children *12 year old boy had sex with 16 year old baby sitter and knocked her up VI. Child Custody 1. La. CC. Art. 131 Court to Determine Custody- In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interst of the child 2. La. CC. Art. 245 Custody of Illegitimate Children Acknowledged by Both ParentsIn a proceeding in which custody of an illegitimate child formally acknowledged by both parents is sought by both parents, and in proceedings for change of custody after an original award, custody shall be awarded in accordance with the provisions on custody incident to divorce 3. La. CC. Art. 132 Award of Custody to Parents- If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interests of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interests of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interests of the child, the court shall award custody to that parent. 4. La. CC. Art. 133 Award of Custody to Person Other Than a Parent; Order of Preference- If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment

Statutory Definitions of Best Interests *Michigan Child Custody Act of 1970- the best interests of the child is determined by the total sum of the following factors -love affection and other emotional ties between child and parties involved -capacity and disposition of the parties involved to give the child love, affection, and guidance, and continue the education and raising of the child in his or her religion or creed if any -capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under state laws in place of medical care, and other material needs -the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity -the permanence as a family unit, of the existing or proposed custodial home or homes -the moral fitness of the parties involved -the mental and physical health of the parties involved -the home, school and community record of the child -the reasonably preference of the child, if the court considers the child to be of sufficient age to express preference -the willingness and ability of each of the parties to facilitate and encourage a close and continuing parent child relationship between the child and other parent or the child and parents -domestic violence, regardless of whether the violence was directed against or witnessed by the child -any other factor considered by the court to be relevant to a particular child custody dispute *Section 3011 of the California Family Code- In making a determination of the best interest of the child, the court shall, among any other factors it finds relevant, consider all of the following -the health, safety and welfare of the child -any history of abuse by one parent or any other person seeking custody against any of the following *any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary *the other parent *a parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship -the nature and amount of contact with both parents -the habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent -where allegations about a parent committing violent acts or abusing drugs/alcohol have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and

manner of transfer of the child as set forth in subdivision (b) of section 6323, the provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation *La. CC. Art. 134 Factors in Determining Childs Best Interests- The court shall consider all relevant factors in determining the best interest of the child. Such factors may include: (1) the love, affection, and other emotional ties between each party and the child. (2) the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child (3) the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs (4) the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity in that environment (5) the permanence, as a family unit, of the existing or proposed custodial home or homes (6) the moral fitness of each party, insofar as it affects the welfare of the child (7)the mental and physical health of each party (8) the home, school, and community history of the child (9) the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference (10) the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party (11) the distance between the respective residences of the parties (12) the responsibility for the care and rearing of the child previously exercised by each party Palmore v. Sidoti- Race of One Partys New Spouse Cant be a Factor *lower florida court takes custody away from mother because her new husband is black and shes white *ISSUE- is the reality of privately held prejudices against inter-racial couples and the injury they may inflict sufficient consideration to remove a child from the custody of its natural mother where shes white and has remarried a black man? *RULES-(1) under the 14ths EP clause racial classifications must pass strict scrutiny meaning they must be absolutely necessary to advance a compelling government interest (2) the goal of granting child custody based on the best interests of the child is a substantial government interest for the EP clause (3) public officials sworn to uphold the constitutional may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held *HOLDING- it is a clear violation of the equal protection clause to make child custody determinations of any kind based on race *EPILOGUE- after the Supreme Court reversed the ruling by the lower court, the mother STILL could not get custody of her daughter back, the father had moved to Texas with the daughter and he appealed to a Texas court to get a restraining order against the mom, THEN the court in Fla that originally gave husband custody transferred the case to Texas rejecting the argument that it was defiance of the

Supreme Court BECAUSE it DID overrule the order BUT it DID NOT actually ORDER the Florida court to hand custody over to the mom (so ridiculous) -------------11/21/2011 CLASS NOTES More Child Custody *in La. for a non-parent to win custody over the child there must be a demonstrated great risk of harm to the child if it continues to live with the parent -not enough that the grand parent or other non-parent party can provide a more comfortable life or any other factor ----Unique Cases *case where child was verifiable genius, and one parent was not interested in child attending private school or pursuing a college degree where other parent was enthusiastic and passionate about the childs education -court determined that the less enthusiastic parents views reflected an unwillingness to PAY for the education, held that while paying for college is NOT a legal obligation of child support in this case this issue DID merit giving full custody to the mother and this was a state where child support through college COULD be ordered by the court and here the court DID issue such an order while noting that such orders are modifiable if circumstances change -----Custody Determined by Sexual Behavior Zepeda v. Zepeda *parents move to South Dakota, then divorce *husband alleges sexual misconduct by the wife- bases argument for custody on it -highly erotic discussions on internet chat rooms with two different adult men about once a week -actual sex on multiple occasions with another man- at least once in the marital home while the child was asleep in his room -husband alleged that the cyber sex was an addiction *2 tests 1. per se- still used in minority of jurisdictions, parental immorality warrants loss of child custody OR a rebuttable presumption that the other parent is the more suitable custodian 2. Nexus rule- more explicitly dealing with conduct that is considered immoral, to establish that a parents immoral behavior warrants a loss of custody, the parent seeking custody must prove a nexus between that conduct and actual harm to the child *court holds that the wifes conduct is immoral BUT not sufficient to use the per se test and instead looks for the Nexus and does not find it ----------------------------------------------------------------------------------11/28/2011 CLASS NOTES *4 situations in which a parent can have custody taken from him/her on moral grounds (according to one judges opinion in a case you didnt read)

1. allowing child to witness infidelity 2 find the rest, READ THE CASE -very conservative judge, wants to bring back fault only divorces ----*questions of custody based on morality of parents are usually centered on a parents sex life -limited range of acts of infidelity that are considered immoral *if acts are not witnessed by the child they can still harm a parents case, if the court feels that the parent placed his/her own sexual desires above the best interests of the child -------Sexual Orientation and Child Custody *USED to be the rule that homosexuality or non-conforming sexual orientation would bar a parent from custody of the child -based in the argument that this parent was breaking the law back in the days of widespread criminal penalties for sodomy pre-Lawrence v. Texas -STILL see some remnant of this kind of ruling with courts holding that the parent is placing his own sexual desires ahead of the best interests of the child *balancing approach- does not cease to see homosexuality as a bad thing BUT it is a negative that can be overcome by otherwise outscoring the other parent on other moral considerations -so a gay parent would win over an alcoholic parent -case where a court took custody away from gay parent under old per se rule and gave custody over to a father that had previously committed murder Scott v. Scott *case used a type of balancing approach and saw negatives of mom being a lesbian as outweighing the positives of her personality *Nexus Test- is there actual harm on the child that is BEING produced OR has a significant chance of being produced BECAUSE OF the parents homosexuality Arthur v. Arthur- Concerns of Keeping Siblings Together AND for the Role of Religion in Custody Determination *RULES-(1) preference for keeping siblings together to cause as little dislocation as possible for children (2) HOWEVER its a preference and not a strict rule- whether they ACTUALLY stay together depends on the circumstances, rebuttable presumption that staying together is in the childrens best interest (3) most frequently rebutted by differences in the needs of the children (4) religion- 1st amendment plays on this issue, its not an abuse of discretion to consider the parents likeliness to display a proper religious example (Miss. Court) (5) Indiana court held that it WAS an abuse of discretion for a lower court to take custody away from parents practicing some obscure religion (6) religion in dispute between parents- most courts hold that each parent has a right to expose their children to the religious practices that they each practice UNLESS theres a clear showing of harmclear showings of harm have included children having nightmares and fearing that

they and their Jewish mother would go to hell because of what they were taught in their fathers Pentecostal Church (7) another approach to religion is to consider the religion of a parent as a factor in the morality balance determination (8) and yet ANOTHER approach is allow a court to intervene if a parents religious beliefs and their manifestations present a RISK of substantial harm instead of actual harm *when it comes to considering the religious affiliation of the parents and their dispute, the courts in THIS CASE held that they didnt really consider the religion and instead focused on the education of the children -pertinent here because one parent wanted the children educated in a HIGHLY religious school but this was the one the court ruled against -court held that the religious school didnt offer as much all around as the nonreligious school, big thing they touched on was extra-curriculars and sports -----Domestic Violence *theres a model act that says theres a judicial presumption against giving sole custody to any parent who has a history of family violence -family violence defined as .. fuck *presumption rebutted ONLY by a showing that the guilty parent has completed a rehabilitation program -if court finds that both parents have a history then custody will be awarded to the parent whos LESS likely to commit future violence -violence can be against the child or against the other parent *La. is among the states that has adopted some form of this act Nikita v. Kiktrich (Sp?) *fight over child custody *didnt go over it in class but look for it Turner *old case- illustrates how fights over child custody are often an extension of the fight that lead to the divorce in the first place- all about how the children are raised *went back and forth up to the supreme court of the state -first gave mom custody then gave joint custody *father appeals joint custody order- supreme court reverses *the custody arrangement called for alternating custody every year for two young boys- causes large potential for instability in the childrens lives -inconsistent discipline from year to year -inconsistent religions -inconsistent levels in the childrens own independence and autonomy -possibly could result in children switching schools from year to year -court ultimately gave custody to the father *parents were fighting over -ammount of time spent with children -tutor for one child- mom wanted to do it herself, dad wanted trained tutor -mom cleaned up after children, dad thought they needed to do it themselves *highly contentious divorce

--------------------------------------------------------------------11/30/2011 CLASS NOTES Non-Custodial Visitation Rights *a parent denied custody of his child is entitled to reasonable visitation rights *rapists are not entitled to visitation IF the child at issue was conceived as a result of felony rape by that parent *parent not entitled to visitation if he killed the childs other parent -find the code article where this comes from, article on custody -------Third Party Visitation rights Troxel- Grandparents Visitation Rights *pair of grandparents turn to court for an expansion of their current visitation rights as set by the mother *court in California had awarded visitation rights for umber of reasons -continuing the relationship the children had with grandparents -expose children to beneficial things the mother couldnt- music, the grandfather was a successful rock musician -other reasons *court balancing the benefits of grandparents visitation with mothers right to her children -lower court held in favor of expanding visitation rights *the mother and her boyfriend were never married, they separated at one point and the boyfriend moved to live with his parents -the children would spend weekends at his house with their grandparents *THEN the father/boyfriend killed himself *first the mother continued to allow the children to spend every weekend at the grandparents house THEN changed her mind and wanted to limit it to one weekend a month- grandparents suing to fight this *grey activism grandparents fighting for visitation rights to children -statutes protecting their right to do so, thats what the grandparents sued under *Washington statute said that any person at any time may petition for visitation rights- standard for court to use is whenever it MAY serve best interests of the child the court could issue visitation -grandparents petitioned for two weekends of visitation rights every month and two weeks of visitation in the summer -mom said no overnight and only one weekend with one week in the summer and a night on each grandparents birthday -court split the baby and gave the grandparents half of what they wanted, mom appealed and got married in the meantime, husband adopted the children *on remand, the superior court ruled in favor of the same expanded visitation they had crafted- ultimately the Wash Supreme Court held that the visitation statute in the state unconstitutionally interfered with parents right to rear their children

-THEN went to US Supreme Court which held that there were a couple of problems with the statute and the decision below, but wouldnt say the statute was per se unconstitutional 1. so broadly stated that it doesnt confine the courts enough to ensure that a decision under it wont be unconstitutional- overbroad 2. courts decision stretched the benefits that increased visitation for the grandparents would give the children without weighing the mothers own constitutional interest in determining what her daughters best interests were -court seemed to presume that visitation with grandparents was in childrens best interest and put the burden on the mom to refute it- the presumption is supposed to go the other way, its supposed to be that the parent is presumed to act in the childs best interest, and its not as if the parent here completely cut off the grandparents visitation *court holds that the parents rights to rear her children is more important than what the court happens to think is the best decision *NOTE- while the domestic relations exception to diversity jurisdiction keeps a lot of cases like this out of federal court THIS CASE turned on a federal question of constitutionality and therefore had no impediments to reaching federal court -also this wouldnt have been a diversity action anyway since all parties were in Washington State so COMPARE TO La. CC. Art. 136 *in La. under extreme circumstances a non-parent blood relative or step parent can petition for reasonable visitation rights if its in the best interest of the child and the code article lists factors to consider -length and quality ofprior relationship with child -whether the child is in need of guidance, tutelage etc that can best be provided by that party -preference of the child -willingness of the party to facilitate a good relationship with the childs parents *so the grandparent that hates the fact that the widow of their now dead son is dating again might not get visitation rights if theres a risk that theyll talk shit about the mom -mental and physical health of the child and relative petitioning *LRS (find it)- when one party to a marriage dies, is interdicted or has been incarcerated and theres minor children of the marriage, the parents of that now absent parent can petition for reasonable visitation rights if its in the best interest of the child -similar statute for non-married parents but that situation does not include interdicts for whatever reason -this statute includes other relatives like older siblings -this statute is supposed to prevail in the event of a conflict of law -------

D.C. Case- 2 women in same sex couple are disputing custody of a child that one of them adopted and the two of them raised for 5 years *state does not allow two non-married individuals to adopt together so only one could do it *THEN 5 years later they break up and the partner without custody is concerned that shes cut off from the child- has no legal right, not a blood relative, not a former spouse *some courts hold here that an ex-partner like this doesnt even have standing to come into court and ask for visitation- NY, Texas both take this position *emerging doctrines permits a court to grant visitation, over a parents objection, with a former partner provided its in the best interest of the child -de facto parent -equitable parenthood AKA parenthood by estoppel *whichever test the court applies, the result of a finding like this is that the person at issue, while not a relative at law, is found to be a parent via equitable fairness principles and does not have to overcome the presumption in favor of the natural parents decision because the parties are on equal footing as parents *in DC its a De Facto Parent Case- court looks for -party acted as a parent with the consent/enablement of the legal parent *here the legal parent had a document drafted prior to breakup saying the other partner would also stand as a parent -party lived with child creating family structure -party performed significant familial functions for the child *no question on these two factors -parent child bond has formed *equitable parenthood/parenthood by estoppel test -legal parent facilitated parent child relationship between party and child -party justifiably relied on that facilitation -------------------------------Modification/Termination of Visitation Rights *need to show change of circumstances since the visitation rights order -some jurisdictions interpret this as requiring a change in circumstances that was not contemplated in the earlier order, some will listen to any change *need to show that the change sought is in the best interests of the child *other side would argue either that the change in circumstances was minor OR that the change has no bearing on the best interests of the child ---------------------------Exam *similar to recent past exams- which are online -short hypos short answer questions -occasional multiple choice/short answer- this is where history could crop up -dont need to be able to cite numbers of code articles, just content (same for case names)