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Page i
Competing Interests in Family Law

Legal Rights and Duties of Third Parties, Spouses, and Significant Others
John C. Mayoue
4
Section of Family Law Publications Development Board
Barbara Kahn Stark, Chair
Gail D. Baker
Frieda Gordon
Gregg Herman
Mary K. McCusker
Eliot J. Nerenberg
Kimberly A. Quach
Carlton D. Stansbury
Book design by Zaccarine Design, Inc.
The materials contained herein represent the opinions of the authors and editors an
not be construed to be the action of either the American Bar Association or the Sec
Family Law unless adopted pursuant to the bylaws of the Association.
Nothing contained in this book is to be considered as the rendering of legal advice

specific cases, and readers are responsible for obtaining such advice from their own
counsel. This book and any forms and agreements herein are intended for education
informational purposes only.
1998 American Bar Association. All rights reserved.

Printed in the United States of America.
02 01 00 99 98 54321
Mayoue, John C., 1954

Competing Interests in Family Law: Legal Rights and Duties of Third Parties, Sp
Significant Others/John C. Mayoue
p. cm.
ISBN 1-57073-537-9 (pbk.)
1. Husband and wifeUnited States. 2. Unmarried couplesLegal status, laws, etc.Un
5
1. Husband and wifeUnited States. 2. Unmarried couplesLegal status, laws, etc.Un
States. 3. Divorce suitsUnited States. 4. Third parties (Law)United States. 5. Cus
childrenUnited States. I. Title.
KF510.M39 1998
346.7301 63dc21
98-9629
CIP
Discounts are available for books ordered in bulk. Special consideration is given to
bars, CLE programs, and other bar-related organizations. Inquire at ABA Publishin
Publishing, American Bar Association, 750 North Lake Shore Drive, Chicago, Illi
60611.
6
CONTENTS
Acknowledgments
Introduction
Civil and Evidentiary Issues Affecting Marital Relationships
Chapter 1
The Privilege against Self-incrimination
Applicability of the Privilege against Self-Incrimination in Domestic Relatio
The Privilege in the Civil Context
Applicability of the Privilege in Family Law
Standard of Proof and Presumptions of Law
Threat of Criminal Prosecution
Testimony Requirement
Parties Who May Assert the Privilege
Applicability of the Privilege in the Context of Divorce
7
Conclusion
Consistently Invoking the Privilege
How the Privilege Is Invoked
When the Privilege May Be Invoked
Ramifications
Waiver
Conclusion
The Cost of Invoking the Privilege: Penalty versus Sanction
Wholesale Avoidance by Plaintiff with Central Testimony
Limiting Collateral Testimony by Any Party
Limiting Central Testimony by Any Party
Conclusion
Chapter 2
Qualified Testimonial Privileges
Psychotherapist-patient Privilege
Marriage Counselors
Waiver
8
Social Workers
Waiver
Nonlicensed Mental Health Professionals
9
Physician-patient Privilege
Clergy-communicant Privilege
Waiver
Accountant-client Privilege
Waiver
When Privilege May Not Be Invoked
Lack of Confidentiality
Type of Relationship
Clergy
Injury to the Relationship Less Than the Benefit Gained
Conclusion
Chapter 3
Wiretapping
Federal Law
Scope of Protection
10
Nature of Liability
Prohibited Activities
Interception
Disclosure and Use
Procurement
Consent Exception
Relief Available
Injunctive Relief
Monetary Damages
Intrafamilial Immunities
Minority View
Majority View
Parental Immunity
State Law
Admissibility in Domestic Relations Proceedings
Conclusion
Chapter 4
11
Interspousal Torts
Procedural Issues
Interspousal Immunity
Joinder of Tort Claims with Divorce Actions
Joinder Encouraged
Permissive Joinder
Joinder Prohibited
Other Potential Bars to Asserting a Tort Claim
12
Statute of Limitations
Divorce Settlement Agreements
Conclusion
Specific Interspousal Torts
Tortious Infliction of Emotional Distress
Intentional Infliction of Emotional Distress
Assault and Battery (Including Sexual Battery)
Tortious Infliction of Sexually Transmitted Diseases
Human Immunodeficiency Virus (HIV)
Herpes Simplex Viruses
Sundry Other Interspousal Tort Actions
Conclusion
Conclusion
When Divorcing Couples Involve Third Parties
Chapter 5
13
Use of Employed Experts
Private Investigators
When to Use a Private Investigator
Phase One
Phase Two
Phase Three
Phase Four
How to Select a Private Investigator
Referrals
Licensed and Bonded
PI's Experience
Insurance Coverage
How to Work with a Private Investigator
Initial Meeting
Billing Practices
Reporting Practices
14
Improper Conduct on the Part of a Private Investigator
Compromising Witnesses
Surveillance
Confidential Records
Other Personal Torts
Valuation Experts
When to Use a Valuation Expert
Ethical Considerations
Conclusion
15
Chapter 6
Third-Party Tort Law
Wrongful-death Actions
Specific Third-Party Causes of Action
Alienation of Affections and Criminal Conversation
Implications
Intentional Infliction of Emotional Distress (IIED)
Professional Malpractice
Clergy Misconduct
Conclusion
Chapter 7
Third-Party Interests in Marital Property
Joinder and Intervention of Legitimate Third Parties
Joinder of Legitimate Third Parties
Third Parties with Proprietary Interests
Effect of Joinder
16
Effect of Intervention by Legitimate Third Parties
Rights of Legitimate Third-Party Creditors
Equitable Remedies
Injunctive Relief
Injunctions and Third Parties
Adjudicating the Rights of Third Parties
Rescission
Conduct as a Factor in Division of Marital Property
Purpose of Unequal Division: Reimbursement or Penalty?
Classification of Property as Marital Property
The First Element
The Second Element
The Third Element
The Fourth Element
Valid Marital Purposes
Third-Party Valid Purposes
17
Invalid Purposes
Third-Party Invalid Purposes
Miscellaneous Equitable Remedies
Business Entities
Corporations
Piercing the Corporate Veil
Equitable Remedies
Partnerships
18
Miscellaneous Business Entities
Conclusion
Chapter 8
The Effect of Third-Party Privacy Rights Upon Discovery Requests
Business Institutions
Balancing Test
Extent of Interest
Nature of Information
Other Sources
Limitations on Discovery from Third Parties
Protective Orders
Financial Institutions
Individual Persons
Third Persons' Salaries
Witnesses
19
Conclusion
Alternative Relationships and the Law
Chapter 9
Alternatives to Traditional Marriage
Protection of Rights for the Nontraditional Personal Relationship
Cohabitation and Common-law Marriage
Common-law Marriage
Cohabitation
Domestic Partnerships
Breach of the Marriage Promise and Survival of Antiheartbalm Acts
Traditional View Emerges
Progressive View Emerges
Alternative Causes of Action
Pecuniary Losses
Traditional View
Progressive View
Emotional Losses
20
Availability of Reliance Damages
Conclusion
21
Chapter 10
Stepparent Obligations, Custody, and Visitation
The Evolution of Stepparent Obligations
In Loco Parentis: The Cornerstone of Third-Party Rights
Common Law
Modern-day Touchstone
Statutes Creating Stepparent Obligations
Types of Promises
Estoppel
Contracts
Conclusion
Custody
Standing
Stepparents Who Lack Standing
Parental-right Doctrine
22
Best-Interest-of-the-Child Doctrine
Conclusion
Visitation
Visitation Statutes
Visitation Case Law
Stepchild Adoption
Conclusion
Chapter 11
Custody and Visitation Outside the Nuclear Family
Custody
Presumptions of Law and Standards of Proof
Parental-right Doctrine
When Custodial Rights May Be Asserted by Third Parties
Procedural Barriers
Principles of Standing
Same-sex Relationships
23
Challenging Petitions for Custody
Conclusion
Grandparent Visitation
Grandparent Visitation Law
Statutes Derived from Equity
Parental Objections
Exceptional Circumstances
Best Interest of the Child
Open-ended Law
24
Effect of Adoption on Grandparent Visitation
Biologically Derived Rights
Timing
Notification
Constitutional Challenges to Grandparent Visitation Rights
Standing
Statute Unconstitutional
Equitably Derived Statutes
Open-ended Statutes
Visitation Not in the Child's Best Interest
Conclusion
Visitation Rights of Individuals Outside the Nuclear Family
Relatives
Cohabitants, et al.
Conclusion
25
Interference with Third-Party Visitation
Nature of Cause of Action
Common Infractions
Egregious Encroachments
Conclusion
About the Author
Appendices
A
Marriage Counselor Testimonial Privilege
B
Social Worker Testimonial Privilege
C
Clergy-communicant Testimonial Privilege
D
Accountant-client Testimonial Privilege
E
Synopsis of the Governing Wiretap Statutes in Each of the Fifty States
F
Admissibility of Intercepted Matter
26
G
Common-law Alienation of Affections and Criminal Conversation Causes of Actio
H
Confidential or Privileged Nature of Financial Records
I
States That Recognize Common-law Marriage
J
States That Restrain the Common-law Breach of Promise to Marry
K
Stepparent Statutory Obligations
L
Stepparent Visitation
M
Rights of Third Parties Upon Familial Divorce
Index
27
Page x
ACKNOWLEDGMENTS
I would like to acknowledge the tireless work and dedication of Christal Dawn
Archibald, Esq. Her contributions have been invaluable.
28
Page xi
INTRODUCTION
The rights and obligations of social relationships are somewhat ambiguously

grounded in ecclesiastical antecedents and are inconsistently tempered by
contemporary public policies. They are variously addressed by federal law and
the federal and state constitutions, although they are in large measure governed
by state statutes and case law. There is an increasing legislative and judicial
tendency to recognize marital, third-party, and alternative-relationship
substantive rights outside the constraints of hackneyed and dated mores.
This book examines the ever expanding legal context in which these rights and
obligations are being defined. It provides an overview of testimonial privileges
available in domestic relations actions and the consequences of their invocation,
as well as a discussion of spousal and third-party privacy rights and
contemporary remedies for spousal misconduct. More significantly, perhaps, is
the discussion and examination of domestic relations law applicable to third
parties and persons in alternative or nontraditional relationships.
The first four chapters deal with issues between divorcing couples. Chapter 1
discusses available privileges against self-incrimination in the domestic relations
context and related consequences for the invocation. Chapter 2 discusses
applicable testimonial privileges available between divorcing spouses and
clergy, counselors, or accountants. Chapter 3 is an explanation and analysis of
federal and state wiretapping law in the domestic relations context. Chapter 4
examines the increasingly volatile and expanding body of interspousal tort law.
Chapters 5 through 8 deal with third partiesemployed experts, persons against

whom spouses may assert tort claims, and persons with interest in marital
29
propertyand third-party privacy and substantive rights in the dissolution
discovery process.
The final three chapters examine the legal rights of persons who are not spouses
but are nonetheless significantly affected by the termination of relationships.
Chapter 9 discusses the rights of coupleswhether engaged, cohabiting, or in
domestic partnershipswho are not legally married but who nonetheless have
valuable property rights and significant responsibilities. Chapter 10 examines
the rights of stepparents to custody and visitation. The final chapter outlines
rights to custody and visitation of persons outside the nuclear family, such as
grandparents, other relatives, and partners.
30
Page 1
CIVIL AND EVIDENTIARY ISSUES AFFECTING MARITAL

RELATIONSHIPS
31
Page 3
Chapter 1
The Privilege against Self-Incrimination
The broad and inclusive discovery process in civil litigation necessarily exposes
secrets. Contested divorce proceedings and child custody actions bring personal
affairs out in a public forum. The named parties as well as third-party
witnessessuch as cohorts, lovers, therapists, or business partnersmay have to
proffer embarrassing or sensitive facts to a public court of law.
Fortunately, evidence and discovery rules do protect certain personal matters.

There is collective recognition that society benefits by keeping some matters
private; for instance, statutory privileges protect the confidentiality of
communications between individuals and persons who provide professional
services. 1
There is another realm of secrets that do not work to benefit society, but rather
the individual. The keystone for the protection of an individual's right to
privacy in both civil and criminal trials is the Fifth Amendment of the
Constitution of the United States. 2
This chapter addresses the applicability of the privilege against compelled self-
incrimination in civil actions, particularly domestic relations actions. The
chapter then explains how to invoke the privilege3 properly and addresses
waiver of the privilege. Finally, the chapter discusses the sanctions that may
result from exercise of the privilege, as well as the policies underlying such
sanctions.
1 See Chapter 2, which addresses the qualified testimonial privilege afforded to
32
communication between individuals and professionals, such as psy chotherapists,
phy sicians, clergy, and accountants.
2 Bellis v. United States, 417 U.S. 85 (1974). For discussion of the history and policy of the
privilege, see Martin I. Kaminsky, Preventing Unfair Use of the Privilege against Self-
Incrimination in Private Civil Litigation: A Critical Analysis, 39 BROOK. L. REV. 121
(1972).
3 ''Privilege," as used in this chapter, refers to the Fifth Amendment privilege against
compelled self-incrimination.
33
Page 4
Applicability of the Privilege against Self-Incrimination in Domestic Relations

Cases4
No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use, without just
compensation.5
The Privilege in the Civil Context
Though originally afforded only to the criminal defendant, the privilege against
compelled self-incrimination is also applicable in the civil context. 6 The
Fourteenth Amendment of the U.S. Constitution extends the protection of the
Fifth Amendment to abridgment by the states. 7 Protection against compulsory
self-incrimination is also provided by state constitutions, 8 and may be expanded
by state statutes9 and case law. 10
Unlike in the criminal context, the privilege against compelled self-

incrimination in the civil context does not ensure that the claimant has a fair
trial, thereby protecting him or her from an inquisitorial government; to the
contraryallowing silence through this privilege "derogates rather than improves
the chances for accurate decisions,"11 but does preserve "an individual's
right . . . [to a] private inner sanctum of individual feeling and thought."12
Because the policy reason for civil use of the privilege is not as substantial as in
the criminal context, individuals who assert the privilege in a civil trial are
afforded only, it seems, a modicum of protection. 13
4 This section relies on decisions from the U.S. Supreme Court, as well as on state
case law; both may prove persuasive within a particular jurisdiction.
34
5 U.S. CONST. amend. V.
6 Baxter v. Palmigiano, 425 U.S. 308 (1976) (inmate's disciplinary hearing); Lefkowitz v.
Turley, 414 U.S. 70 (1973) (grand jury hearing); Spevack v. Klein, 385 U.S. 511 (1967)
(professional disciplinary hearing); McCarth v. Arndstein, 266 U.S. 34 (1924).
7 Malloy v. Hogan, 378 U.S. 1 (1964).
8See MD. DECLARATION OF RIGHTS art. 22; VA. CONST. art. I, 8.
9See GA. CODE ANN. 24-9-27(a)(1982 & Supp. 1997).

10 There is a case law tradition of allowing a privilege against public degradation. Brown
v. Kingsley, 38 lowa 220 (1874); Pence v. Dozier, 70 Ky. 133 (1870).
11 Baxter v. Palmigiano, 425 U.S. 308, 319 (1976).
12 Bellis v. United States, 417 U.S. 85, 94 (1979).
13 This conclusion becomes blatantly obvious in a later section of this chapter entitled
"The Cost of Invoking the Privilege: Penalty versus Sanction."
35
Page 5
Applicability of the Privilege in Family Law
This section covers the legal mechanics of asserting the privilege in the civil
context, such as the standards and presumptions used by divorce courts and the
criminal and testimonial requirements that must be present before asserting the
privilege, as well as who may assert the privilege. The next section addresses
how the privilege has been used specifically in the family law context.
Standard of Proof and Presumptions of Law
The standard the court uses to determine whether assertion of the privilege is
proper is as follows: the party or witness must reasonably believe that the
requested information may directly or indirectly lead to criminal prosecution. 14
The court places the burden on the claimant to provide justification for the
privilege. 15 Although there is no presumption of good faith in favor of the
privilege, 16 in most cases the privilege is allowed. 17
Threat of Criminal Prosecution
To assert the privilege, there must be a real threat of criminal prosecution. 18 If

the criminal statute of limitations has expired, there is no possibility of
prosecution, and therefore no privilege. 19 Further, a grant of immunity, 20 a
conviction, or an acquittal may also render the privilege against self-
incrimination moot. 21 Another way the court may find the privilege inapplicable
is when the action is devoid of any criminal liability, 22 such as in a paternity
action23 or remedial civil contempt action. 24
14 Hoffman v. United States, 341 U.S. 479 (1951); Commonwealth v. Carrera, 424
Pa. 551, 227 A.2d 627 (1967); Cornelison v. Cornelison v. DeWeese, 22 Va. Cir. 234
(Fairfax Co. 1990).
15 F.W.P. and A.P. v. State Dep't of Human Resources, 606 So. 2d 153 (Ala. Civ. App.
36
1992).
16 Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 155 A.2d 721 (1959).
17See Robert Heidt, The Conjurer's CircleThe Fifth Amendment Privilege in Civil Cases,
91 YALE L.J. 1062, 106465 (1982).
18 Pay ne v. Pay ne, 33 Md. App. 707, 366 A.2d 405 (Ct. Spec. App. 1976); Gerson v.
Gerson, 148 N.J. Super. 194, 372 A.2d 374 (Super. Ct. Ch. Div. 1977); see also Leonard v.
Williams, 100 N.C. App. 512, 397 S.E.2d 321 (Ct. App. 1990).
19 Wehling v. Columbia Broad. Sy s., 608 F.2d 1084 (5th Cir. 1980); Handley v. Handley,
460 So. 2d 162, rev'd on other grounds, 460 So. 2d 167 (Ala. Civ. App. 1983); Graham v.
Miracle, 556 P.2d 605 (Okla. 1976); Pierce v. Pierce, 25 Va. Cir. 348 (Fairfax Co. 1991).
There is case law in which the court chose to stay the civil case pending the running of the
statute of limitations. Wehling v. Columbia Broad. Sy s., 608 F.2d 1084 (5th Cir. 1980).
Another civil case was also stay ed pending the outcome of a criminal case. Afro-Lecon,
Inc. v. United States, 820 F.2d 1198 (Fed. Cir. 1987).
20 Lefkowitz v. Turley, 414 U.S. 70 (1973).
21 United States v. Stephans, 492 F.2d 1367 (6th Cir. 1974).
22 Duffy v. Currier, 291 F. Supp. 810 (D. Minn. 1968); In re Thorup, 461 A.2d 1018 (D.C.
1983).
23 Larrabee v. Sachs, 201 Mich. App. 107, 506 N.W.2d (Ct. App. 1993).
24 Barber v. Barber, 811 P.2d 451 (Colo. Ct. App. 1991).
37
Threat of Crim
Husband and Wife were involved in a divorce action. Husband invoked his Fifth A
compel answers to whether Husband was involved in an adulterous relationship. T
After determining whether the one-year statute of limitations was still active, the tr
denied the motion regarding the alleged incident in 1989.
Messiah v. Messiah, 17 Va. Cir. 365(Fairfax Co. 1989).
Testimony Requirement
Because the privilege protects against compelled testimony, the evidence sought m
as they are not verbal statements. 25
Parties Who May Assert the Privilege
The privilege may be claimed by a party or third-party witness. 26 The privilege be

organizations. 27 Although a corporate officer may invoke his or her personal privile
proprietorships are treated a bit differently; though the records are not shielded by t
Applicability of the Privilege in the Context of Divorce
In domestic relations cases, 30 there are several situations in which the privilege aga
bases for fault grounds for divorce. For example, in many states, adultery is a crim
equitable division of property even in a no-fault divorce cause
25 Salicco v. Salicco, 125 Misc. 2d 137, 479 N.Y.S.2d 313 (Sup. Ct. 1984).
26 Lefkowitz v. Turley, 414 U.S. 70 (1973); McCarth v. Arndstein, 266 U.S. 34 (1924); Bass v.
38
27 Bellis v. United States, 417 U.S. 85 (1974); California Bankers Ass'n v. Shultz, 416 U.S. 21 (
States, 487 U.S. 99 (1988); Gerson v. Gerson, 148 N.J. Super. 194, 372 A.2d 374 (Super. Ct. Ch
28See Bellis v. United States, 417 U.S. 85 (1974); Afro-Lecon, Inc. v. United States, 820 F.2d 1
29 United States v. Doe, 465 U.S. 605 (1984).
30 For a general discussion of privileges in divorce law cases, see James H. Feldman & Caro
189 (1987); Madeline M. Celletti, Taking the Fifth in a Divorce Trial: Using and Abusing the P
31See Martin J. Siegel, For Better or Worse: Adultery, Crime and the Constitution, 30 J. FAM
39
Page 7
of action, allegations of crime may arise as relevant to property division. 32

Custody disputes are also fertile grounds for accusations of crime. 33
Certain crimes are more prevalent in domestic relations legal actions. Although
rarely prosecuted, 34 the criminal status of adultery is a live issue in the domestic
legal context. When accused of adultery35 or illicit cohabitation, 36 a spouse may
plead the privilege against compelled self-incrimination rather than testify.
Likewise, a paramour, questioned as a third-party witness, may assert the
privilege. 37 Other alleged crimes that commonly arise in the sphere of domestic
relations and may prompt a plea of the Fifth Amendment privilege are drug-
related crimes, 38 child abuse39 or neglect, 40 fornication, 41 and tax fraud42 as
well as other financial crimes. 43
Conclusion
A divorce practitioner, before advising a client or witness to plead the Fifth

Amendment, should gauge whether a divorce court will sustain a claimant's
assertion of privilege. The questions a competent lawyer should ask are these:
Can the claimant assert this privilege?
Is the evidence the claimant seeks to withhold testimonial in nature?
Is there a threat of criminal prosecution?
Can the claimant argue before the court that the requested information might
furnish a link in the chain of evidence needed for criminal prosecution?
32 Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 (App. Div. 1985); Tarro v.
Tarro, 485 A.2d 558 (R.I. 1984); Dodson v. Dodson, 855 S.W. 2d 383 (Mo. Ct. App.
1993); but see Hackes v. Hackes, 446 A.2d 396 (D.C. 1982).
40
33 Montoy a v. Superior Court, 173 Ariz. 129, 840 P.2d 305 (Ct. App. 1992); Robinson v.
Robinson, 328 Md. 507, 615 A.2d 1190 (1992); Custody of Two Minors, 396 Mass. 610,
487 N.E.2d 1358 (1986); Dolezal v. Dolezal, 218 A.D.2d 682, 630 N.Y.S.2d 550 (App. Div.
1995); In re Tesch, 66 Misc. 2d 900, 322 N.Y.S.2d 538 (Fam. Ct. 1971); Mey er v. Second
Judicial Dist. Circuit, 95 Nev. 176, 591 P.2d 259 (1979).
34 Martin J. Siegel, For Better or Worse: Adultery, Crime and the Constitution, 30 J. FAM.
L. 45, 53 (199192).
35 Minor v. Minor, 232 So. 2d 746 (Fla. Dist. Ct. App. 1979); Simkins v. Simkins, 219 So. 2d
724 (Fla. Dist. Ct. App. 1969); Schrad v. Schrad, 186 Neb. 462, 183 N.W.2d 922 (1971);
Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415 (App. Div. 1985); Fritz v. Fritz, 88
A.D.2d 778, 451 N.Y.S.2d 519 (App. Div. 1982); Backal v. Backal, 199 Misc. 910, 107
N.Y.S.2d 11 (Sup. Ct. 1951); In re Estate of Calvin Lancaster Trogdon, 330 N.C. 143, 409
S.E.2d 897 (1991); Hackes v. Hackes, 446 A.2d 396 (D.C. 1982).
36 Hollowell v. Hollowell, 6 Va. App. 417, 369 S.E.2d 451 (Ct. App. 1988).
37 Spradlin v. Spradlin, 426 So. 2d 462 (Ala. Civ. App. 1983); Brewer v. Brewer, 249 Ga.
517, 291 S.E.2d 696 (1982); Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974); Crowley v.
Crowley, 18 Misc. 2d 586, 186 N.Y.S.2d 60 (Sup. Ct. 1959); Tarro v. Tarro, 485 A.2d 558
(R.I. 1984); Annest v. Annest, 49 Wash. 2d 62, 298 P.2d 483 (1956).
38 Montoy a v. Superior Court, 173 Ariz. 129, 840 P.2d 305 (Ct. App. 1992); Woy v. Woy,
737 S.W.2d 769 (Mo. Ct. App. 1987); Mey er v. Second Judicial Dist. Circuit, 95 Nev. 176,
591 P.2d 259 (1979).
39 Custody of Two Minors, 396 Mass. 610, 487 N.E.2d 1358 (1986).
40In re Tesch, 66 Misc. 2d 900, 322 N.Y.S.2d 538 (Fam. Ct. 1971).
41 Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982).
42 Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980); Slater v. Slater, 78 Misc. 2d 13, 355
N.Y.S.2d 943 (Sup. Ct. 1974).
43 McGovern v. McGovern, 225 Pa. Super. 281, 301 A.2d 905 (Super. Ct. 1973).
41
Page 8
If the answer to any one of these questions is no, then a claimant who wishes to
withhold information may not assert the privilege. There is case law that shows
the most common family law scenarios in which the privilege has been asserted
successfully.
Even when a claimant can assert the privilege against compelled self-
incrimination, a claimant may lose the right to assert the privilege if the court
interprets the claimant's past actions as an effective waiver of the privilege.
Consistently Invoking the Privilege
This section covers what a claimant must do to invoke the Fifth Amendment,
including how and when the privilege may be invoked, as well as how a
claimant may ruin an opportunity to assert the privilege.
How the Privilege Is Invoked
Assertion of the Fifth Amendment privilege is not difficult;44 indeed, the

privilege need not be expressly invoked. 45 However, the privilege must be
asserted in response to specific questions, not used as a blanket refusal to submit
to examination. 46
The privilege against compelled self-incrimination is personal in that only the

person at risk of incrimination may assert it. 47 A state statute may authorize the
lawyer to assert the privilege for a client. 48 In some jurisdictions, the client is
not entitled to be coached by the lawyer after each question by verbal or
nonverbal warnings regarding the danger of self-incrimination. 49 Likewise, a
competent lawyer cannot expect the judge to instruct the witness that he or she
need not answer particular questions based on a potential claim of privilege. 50
42
When the Privilege May Be Invoked
The privilege can be invoked at any stage of litigation that requires testimony or
production of "testimonial" evidence. 51 For instance, parties and wit-
44 "[There is] no ritualistic formula or talismanic phrase [that] is essential in order

to invoke the privilege against self-incrimination. All that is necessary is an
objection stated in language that [others] may reasonably be expected to
understand as an attempt to invoke the privilege." Emspak v. United States, 349 U.S.
190 (1955).
45 Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971).
46 Guy v. Abdulla, 58 F.R.D. 1 (N.D. Ohio 1973); Eastham v. Arndt, 28 Wash. App. 524,
624 P.2d 1159 (Ct. App. 1981).
47 1 MCCORMICK ON EVIDENCE 120 (John W. Strong ed., 4th ed. 1992).
48See CONN. GEN. STAT. ANN. 52-199(b) (West 1997).

49 Page v. Page, 235 Ga. 131, 218 S.E.2d 859 (1975).
50 Loud v. Loud, 386 Mass. 473, 436 N.E.2d 164 (1982).

51 Salicco v. Salicco, 125 Misc. 2d 137, 479 N.Y.S.2d 213 (Sup. Ct. 1984).
43
The Privilege As D
Husband's body was found in his home, his death the result of gunshot wounds. R
wrongful death. Widow denied the charge, and heirs obtained an order for Widow's
questions, claiming the privilege against self-incrimination. Heirs filed a motion d
trial court denied the motion, but advised that Widow's testimony would be prohi
should provide a list of witnesses to heirs so heirs could depose them before trial.
Widow sought interlocutory appeal from the trial court's decision insofar as it held
questions before trial. Widow argued she had the right to deferuntil after heirs conc
for cross-examination. The New Jersey Supreme Court differed:
The trial court . . . concluded in its discretion that the defendant should either depose before tr
more than ample time to obtain full pretrial discovery from the plaintiffs and to decide wheth
have her deposition before trial so that they may properly prepare and avoid trial surprises w
held to that then the plaintiffs will fairly know in advance what to expect at trial since they ha
Constanza v. Constanza, 66 N.J. 63, 328 A.2d 230 (1974).
nesses may invoke the privilege in response to interrogatories, 52 document request

at hearings57 or at trial. 58
52 Duffy v. Currier, 291 F. Supp. 810 (D. Minn. 1968); Geldback Transp. Inc. v. Delay, 44
53 Giles v. Doggett, 500 P.2d 574 (Okla. 1972); McGovern v. McGovern, 225 Pa. Super. 281, 3
54 Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964).
55 Kingsley v. Kingsley, 601 S.W.2d 677 (Mo. Ct. App. 1980); Costanza v. Costanza, 66 N.J. 63
56 Montoy a v. Superior Court, 173 Ariz. 129, 840 P.2d 305 (Ct. App. 1992).
57In re Matter of Tesch, 66 Misc. 2d 900, 322 N.Y.S.2d 538 (Fam. Ct. 1971).
58 Ikeda v. Curtis, 43 Wash. 2d 449, 261 P.2d 684 (1953).
44
45
Page 10
Ramifications
If a witness asserts the privilege during the pretrial period, in a deposition or in

response to interrogatories, the court may forbid the witness from testifying at
trial. 59 Fairness is the policy concern here: the witness is not allowed to thwart
discovery and surprise the unprepared opposing party at trial with testimony
initially sought from the witness. 60 Hence, a lawyer must make clear to the
witness that once the privilege is invoked before trial, the witness may be bound
by that silence at trial.
Waiver
The most common type of waiver involves the privilege not being asserted at a
deposition, 61 in preparation of material for the court records, 62 or at the trial
court level;63 as a result, the privilege may not be raised at trial or on appeal.
However, waiver in the context of the Fifth Amendment and civil assertion can
undergo further permutations, 64 and a lawyer must be acutely alert to the other
situations that may later be deemed as effective waiver. This is important
because if a witness has waived the privilege, he or she must testify or produce
evidence despite the possibility of self-incrimination.
A witness's answering questions about a potentially incriminating fact may be

deemed waiver, 65 and disclosure of the existence of a fact, such as on a tax
return, 66 waives the privilege regarding the details of the fact. 67 Further, waiver
may be made prospectively, covering future events presently unanticipated; a
divorced spouse can waive his privilege against self-incrimination regarding tax
returns if he agrees in the divorce settlement agreement to provide them to his
ex-wife in the future. 68
Conclusion
46
The last section looked at the objective requirements that must be met before
the privilege against compelled self-incrimination may be invoked. This sec-
59 Pulliam v. Swink, 514 S.W.2d 559 (Mo. 1974); Constanza v. Constanza, 66 N.J.
63, 328 A.2d 230 (1974); Kingsley v. Kingsley, 601 S.W.2d 677 (Mo. Ct. App.
1980).
60See Duffy v. Currier, 291 F. Supp. 810 (D. Minn. 1968).
61 Bonham v. Bonham, 489 So. 2d 578 (Ala. Civ. App. 1985), overruled on other grounds
by Bay liss v. Bay liss, 550 So. 2d 986 (Ala. 1989).
62 Providence Journal Co v. Clerk of Family Court, 643 A.2d 210 (R.I. 1994).
63 Cohran v. Carlin, 165 Ga. App. 141, 297 S.E.2d 54 (Ct. App. 1982).
64 However, just as there is no blanket privilege, there is no blanket waiver; giving pretrial
testimony does not, perforce, mean that a witness has waived the privilege. Alvarez v.
Sanchez, 158 Cal. App. 3d 709, 204 Cal. Rptr. 864 (Ct. App. 1984).
65 Loud v. Loud, 386 Mass. 473, 436 N.E.2d 164 (1982).
66 Garner v. United States, 424 U.S. 648 (1976); Roberts v. Roberts, 231 Ga. 196, 200
S.E.2d 731 (1973); Lowder v. All Star Mills, Inc., 301 N.C. 561, 273 S.E.2d 247 (1981);
First Fed. Sav. & Loan Ass'n of Salt Lake City v. Schamanek, 684 P.2d 1257 (Utah 1984).
67 Rogers v. United States, 340 U.S. 367 (1951).
68 Feig v. Feig, 246 Ga. 763, 272 S.E.2d 723 (1980).
47
Page 11
tion looks at how, through a claimant's conduct, a court may find that the Fifth
Amendment has been invoked, however tacit the signals. However, a keen
practitioner must realize that a court can find that a claimant has implicitly
waived application of this privilege to specific evidence through past conduct as
well. The challenge for a claimant is to exercise the right against self-
incrimination consistently.
The Cost of Invoking the Privilege:

Penalty versus Sanction
The Supreme Court has mandated that the assertion of the Fifth Amendment in
civil cases should not carry a penalty. 69 Penalties involve the encroachment of
other constitutional rights, such as imprisonment70 or loss of an entitlement
like one's professional livelihood. 71 Indeed, the "Supreme Court has
disapproved of procedures [that] require a party to surrender one constitutional
right in order to assert another."72
Divorce courts, however, can and do impose sanctions in response to an

individual invoking the Fifth Amendment. 73 The type of sanction depends on
the pertinent facts of the case, such as whether the claimant is the plaintiff,
defendant, or third-party witness; whether the testimony is central or collateral
to the case; and whether the claimant seeks to limit testimony or discovery,
versus attempting to avoid testifying entirely.
Wholesale Avoidance by Plaintiff with Central Testimony
The most severe sanction is dismissal of the civil suit. 74 This sanction, which
is widely accepted by courts, applies when the witness asserting the privilege is
also a party seeking some type of affirmative relief. 75 Dismissal of this sort may
be based on one of three theories: Courts may hold that a party seeking
48
69 Spevack v. Klein, 385 U.S. 511 (1967).
70 Cotton v. Cotton, 239 So. 2d 865 (Fla. Dist. Ct. App. 1970).
71 Here, a lawy er was subject to the threat of disbarment and the loss of professional
livelihood. Spevack v. Klein, 385 U.S. 511 (1967).
72 Wehling v. Columbia Broad. Sy s., 608 F.2d 1084 (5th Cir. 1980).
73See Dodson v. Dodson, 855 S.W.2d 383 (Mo. Ct. App. 1993); Levine v. Bornstein, 13
Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958).
74See Black Panther Party v. Smith, 213 U.S. App. D.C. 67, 661 F.2d 1243 (D.C. Cir.
1981), vacated on other grounds, 458 U.S. 1118 (1982). There is case law in which the
court, instead of dismissing the case, stay ed the civil case pending the running of the
statute of limitations or pending the outcome of a criminal case. However, these cases
were federal cases that did not involve domestic relations law. See the earlier section of
this chapter entitled "Threat of Criminal Prosecution."
75 Minor v. Minor, 232 So. 2d 746 (Fla. Dist. Ct. App. 1979); Cotton v. Cotton, 239 So. 2d
865 (Fla. Dist. Ct. App. 1970); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194
(1968); Levine v. Bornstein, 13 Misc. 2d 161, 174 N.Y.S.2d 574 (Sup. Ct. 1958); Sparks v.
Sparks, 768 S.W.2d 563 (Mo. Ct. App. 1989); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d
483 (1955).
49
Claimant Seeking Affirmati
Wife was arrested and indicted for attempted murder of Husband. The criminal acti
maintenance, attorneys' fees, suit money, and costs pendente lite.
Husband filed interrogatories, and Wife answered all but two: one concerned Wife's
attempting to murder Husband. Husband moved to strike Wife's pleadings or bar h
and, after protecting Wife's right to refuse to testify, awarded Wife retroactive maint
The Missouri Court of Appeals held the trial court erroneously applied the law:
An analy sis of all of the appellate court decisions on this question leads to the conclusion that
allegations of serious, indeed egregious, misconduct was bey ond the trial court's discretion an
mandated dismissal of her petition or the striking of her motion for temporary maintenance, a
decisions clearly establish, however, that it was incumbent upon the trial court to devise some
proceed without full disclosure of wife's actions in furtherance of the alleged murder plot.
Sparks v. Sparks, 768 S.W.2d 563 (Mo. Ct. App. 1989).
affirmative relief must waive his or her right to assert the privilege. 76 Divorce court
claimant, in exercising the privilege, shows that he or she has "unclean hands."77
privilege against self-incrimination offensively, rather than as a shield. 78
The party subject to dismissal usually is the plaintiff. However, dismissal
76 Arsenaux v. Arsenaux, 417 So. 2d 856 (La. Ct. App. 1982), rev'd on other grounds, 428 So
77 "One seeking a divorce must prove himself to be the innocent and injured party." Franklin
507, 162 N.W.2d 194 (1968); Schrad v. Schrad, 186 Neb. 462, 183 N.W.2d 922 (1971).
78See Minor v. Minor, 232 So. 2d 746 (Fla. Dist. Ct. App. 1979); Stockham v. Stockham, 168 S
by Formosa Plastics v. Presidio, No. 95-1291, 1998 WL 18981 (Tex. Sup. Ct. July 9, 1997); Da
50
51
Page 13
may also be used against a defendant who seeks affirmative relief via
counterclaim. 79
Because a court has discretion to decide what type of sanction to impose, if

any, 80 a divorce court may decide that dismissal is too harsh a sanction81 and
impose one of two alternative sanctions.
Limiting Collateral Testimony by Any Party
The sanction of striking or disallowing testimony or evidence comes from a

principle of fairness: if a party or witness refuses to testify in discovery or in part
at trial, he or she has tampered with the ''whole truth" in violation of the oath
all witnesses take. In such an event, the court may dismiss or strike the
witness's testimony. 82 Both spouse-defendants83 and third-party witnesses such
as paramours84 are subject to this sanction. However, courts may forego this
sanction in custody proceedings, where the best interests of the child
dominate. 85
Limiting Central Testimony by Any Party
The Supreme Court has legitimated the use of adverse inferences against a party
who invokes the Fifth Amendment in a civil case. 86 Many state courts have
approved the use of such inference as persuasive evidence against a party who
claims the Fifth Amendment in a civil context. 87 In particular, family law courts
often opt for the adverse inference as a sanction in response to the invocation of
the privilege in divorce, 88 support, 89 and custody90 proceedings. Negative
inferences may also be drawn against third parties who assert
79See Davis v. Davis, 233 Va. 452, 357 S.E.2d 495 (1987); Hackes v. Hackes, 446
A.2d 396 (D.C. 1982).
80 Levin v. Levin, 129 N.J. Super. 142, 322 A.2d 486 (Super. Ct. App. Div. 1974).
52
81 Montoy a v. Superior Court, 173 Ariz. 129, 840 P.2d 305 (Ct. App. 1992); Robinson v.
Robinson, 328 Md. 507, 615 A.2d 1190 (1992); Imprescia v. Imprescia, 392 Mass. 101,
465 N.E.2d 1205 (1984); Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974).
82 Montoy a v. Superior Court, 173 Ariz. 129, 840 P.2d 305 (Ct. App. 1992); Hagenbuch v.
Hagenbuch, 730 S.W.2d 269 (Mo. Ct. App. 1987); Parker v. Parker, 897 S.W.2d 918 (Tex.
App. 1995), overruled on other grounds by Formosa Plastics v. Presidio, No. 95-1291,
1998 WL 18981 (Tex. Sup. Ct. July 9, 1997); Annest v. Annest, 49 Wash. 2d 62, 298 P.2d
483 (1956).
83 Mey er v. Second Judicial Dist. Circuit, 95 Nev. 176, 591 P.2d 259 (1979).
84 Annest v. Annest, 49 Wash. 2d 62, 298 P.2d 483 (1956).
85 Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992).
86 Baxter v. Palmigiano, 425 U.S. 308 (1976).
87 Whitaker v. Prince George's County, 307 Md. 368, 514 A.2d 4 (1986); Kay e v.
Newhall, 356 Mass. 300, 249 N.E.2d 583 (1969); Ikeda v. Curtis, 43 Wash. 2d 449, 261
P.2d 684 (1953).
88 Brewer v. Brewer, 249 Ga. 517, 291 S.E.2d 696 (1982); Woy v. Woy, 737 S.W.2d 769
(Mo. Ct. App. 1987); Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974); Fritz v. Fritz, 88
A.D.2d 778, 451 N.Y.S.2d 519 (App. Div. 1982); Pulawski v. Pulawski, 463 A.2d 151 (R.I.
1983); Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970).
89 Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982); McGovern v. McGovern, 225
Pa. Super. 281, 301 A.2d 905 (Super. Ct. 1973).
90In re Tesch, 66 Ga. 900, 184 S.E.2d 183 (1971); Robinson v. Robinson, 328 Md. 507, 615
A.2d 1190 (1992); Custody of Two Minors, 396 Mass. 610, 487 N.E.2d 1358 (1986).
53
Page 14
the privilege, to the disadvantage of a named party. 91 The claim of privilege is,
in effect, a "silent admission" of guilt regarding the criminal allegations against
the party or third-party witness. 92
Conclusion
A third-party witness may be able to use the Fifth Amendment privilege against
compelled self-incrimination to avoid disclosing personal information within
court. However, there are stringent requirements. The witness who asserts the
privilege must be a natural person, and the evidence sought must be testimonial
in nature. Further, the evidence must open the door to a threat of criminal
prosecution. Even with these requirements, claimants have successfully asserted
the privilege in the contexts of divorce and family law.
A claimant's past silence or declarations are pivotal to how a divorce court will
treat a witness in the future. If a claimant has been silent in the past, he or she
will be able to assert the privilege. The court will sometimes do more than just
respect assertion of the privilege; after a certain point, the court may preclude a
claimant from testifying on the protected matters in the interests of fairness.
If a claimant has made judicial declarations in the past that relate to

incriminating facts, no matter how general in nature, the court will find that the
claimant has waived the privilege.
In addition to the stringent requirements a claimant must meet, the witness

must also be prepared to bear substantial sanctions, which usually affect only the
case at hand. If the claimant is a named party seeking affirmative relief, the entire
case may be dismissed if the court finds that the testimony is central to the
outcome of the case. There are also two sanctions that are less severe. The court
may strike testimony or evidence in response to a party or third-party witness
pleading the Fifth Amendment. Alternatively, the court may allow a negative
54
inference to be drawn from such silence.
Pleading the Fifth Amendment in the civil context can frustrate discovery and
impede a court's decision-making efficiency. State courts have responded by
balancing the need for information against an individual's right against
compelled self-incrimination; the result: in the civil context, the courts provide
individuals a bare minimum of protection and require the witness to make a
pretrial election to assert the privilege or permit discovery regarding the
allegedly incriminating facts.
91 Brewer v. Brewer, 249 Ga. 517, 291 S.E.2d 696 (1982); Simpson v. Simpson,
233 Ga. 17, 209 S.E.2d 611 (1974); Crowley v. Crowley, 18 Misc. 2d 586, 186
N.Y.S.2d 60 (Sup. Ct. 1959); Tarro v. Tarro, 485 A.2d 558 (R.I. 1984).
92In re Estate of Calvin Lancaster Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991).
55
Page 15
Chapter 2
Qualified Testimonial Privileges
Individuals may engage the services of several types of professionals during a

marriage. Trust is a necessary part of a professional-client relationship, and for a
professional to render service effectively, there must be a transfer of information
from a client to a professional. Two types of professionals who provide services
to persons, and who frequently become involved in divorce proceedings, are
accountants and marriage counselors.
Unfortunately, the therapist who assisted or guided a marriage may potentially

provide sensitive and incriminating information about an estranged spouse. The
accountant who managed the business affairs of a jointly owned venture most
surely will be called upon when valuating the business. Depending on the
professional status of the marriage counselor or accountant and the jurisdiction,
the estranged spouse may be able to protect information requested through
discovery by an opposing spouse.
This chapter covers the privileges that may bar therapists or accountants from
divulging confidential information during divorce litigation. These qualified
privileges are based primarily on statutory law.
Psychotherapist-Patient Privilege
A spouse can discover confidential information pertaining to mental condition

only if it is relevant to his or her legal case. 1 However, discovery of confidential
information may be barred if it is privileged. 2 The psychotherapist-patient
56
1 Nelson v. Womble, 657 So. 2d 1221 (Fla. Dist. Ct. App. 1995); R.K. v. Ramirez,
887 S.W.2d 836 (Tex. 1994); see also Freshwater v. Freshwater, 659 So. 2d 1206
(Fla. Dist. Ct. App. 1995).
2 Leonard v. Leonard, 673 So. 2d 97 (Fla. Dist. Ct. App. 1996); Kinsella v. Kinsella, 150
N.J. 276, 696 A.2d 556 (1997).
57
Page 16
privilege, which comes from statute and not common law, 3 is one type of
privilege. The term "psychotherapist" applies to professionals who provide
psychological therapy. 4 State legislatures privilege psychotherapist-patient
communications because at the core of the relationship is the complete
disclosure of thoughts, emotions, and memories. 5 Readily observable facts are
not protected. 6 This section covers the privileges of two specific types of
psychotherapists: marriage counselors and social workers.
Marriage Counselors
Statutes often group marriage counselors with other licensed professionals, as

many counselors are social workers or psychologists by training and conduct
marriage or family therapy as part of their practice. As the list in Appendix A
summarizes, some states provide for a testimonial privilege for marriage
counselors separate from statutes regulating other licensed mental health
professionals. This may be important, as the marriage counselor privilege may
cover more types of communications than other applicable privileges, such as
the psychologist-patient privilege. 7 Further, group marital counseling sessions,
which involve other couples, may also be protected. 8
Waiver
States may view this privilege as absolute. 9 Courts are split concerning whether
an individual in joint marital counseling can10 or cannot11 unilaterally waive
the psychotherapist-patient privilege.
3Contra In re D.M.C., 331 N.W.2d 236 (Minn. 1983); Ritt v. Ritt, 98 N.J. Super. 590,
238 A.2d 196 (Super. Ct. Ch. Div.), rev'd on other grounds, 52 N.J. 177, 244 A.2d
497 (1967); In re B., 482 Pa. 471, 394 A.2d 419 (1978); but see Allred v. State, 554
P.2d 411 (Alaska 1976).
4 Two jurisdictions expanded the definition of psy chiatrist to include medical doctors who
treated emotional conditions. Wiles v. Wiles, 264 Ga. 594, 448 S.E.2d 681 (1994);
58
Robinson v. Commonwealth, 399 Mass. 131, 503 N.E.2d 31 (1987); Martha M. Kendrick et
al., The Physician-Patient, Psychotherapist-Patient, and Related Privileges, in 2
TESTIMONIAL PRIVILEGES 7.04 (Scott Stone & Robert Tay lor eds., 2d ed. 1993).
5But see State v. Simmons, 172 W.Va. 590, 309 S.E.2d 89 (1983). Martha M. Kendrick et
al., The Physician-Patient, Psychotherapist-Patient, and Related Privileges, in 2
TESTIMONIAL PRIVILEGES 7.04 (Scott Stone & Robert Tay lor eds., 2d ed. 1993).
6In re Adoption of Seth, 29 Mass. App. Ct. 343, 560 N.E.2d 708 (App. Ct. 1990); In re
Grand Jury Investigation, 59 N.Y.2d 130, 450 N.E.2d 678, 463 N.Y.S.2d 758 (1983).
7 Wichansky v. Wichansky, 126 N.J. Super. 155, 313 A.2d 222 (Super. Ct. Ch. Div. 1973).
8 COLO. REV. STAT. 13-90-107(1) (1997); State v. Andring, 342 N.W.2d 128 (Minn.
1984).
9See Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227 (App. Ct. 1990); Sims v.
State, 251 Ga. 877, 311 S.E.2d 161 (1984).
10 Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (1981); Redding v. Virginia Mason
Med. Ctr., 75 Wash. App. 424, 878 P.2d 483 (Ct. App. 1994).
11 Mrozinski v. Pogue, 205 Ga. App. 731, 423 S.E.2d 405 (Ct. App. 1992); Wichansky v.
Wichansky, 126 N.J. Super. 155, 313 A.2d 222 (Sup. Ct. Ch. Div. 1973); Guity v.
Kandilakis, 821 S.W.2d 595 (Tenn. Ct. App. 1991); see also Touma v. Touma, 140 N.J.
Super. 544, 357 A.2d 25 (Super. Ct. Ch. Div. 1976).
59
Page 17
Social Workers
Social workers often perform rudimentary functions traditionally associated with

legal, medical, and religious professionals. 12 As such, social workers often
assume the role of marriage counselor. 13 Because social workers are less
expensive and sometimes less highly trained than other types of
psychotherapists, some states treat social workers differently from other
counseling professionals. 14 As listed in Appendix B, approximately half the
states provide a testimonial privilege to social workers by statute. 15
Waiver
Like other testimonial privileges, this testimonial privilege provided social

workers is subject to waiver. Both spouses must waive the privilege to have any
information from marriage counseling sessions admitted into evidence. 16
Nonlicensed Mental Health Professionals
The general rule is that communications made to and by some unlicensed

professionals acting under the supervision or at the direction of a licensed
therapist are included within the privilege. 17 Some jurisdictions, however, do
not extend the privilege to nonlicensed assistants. 18
Physician-Patient Privilege
Many states protect physician-patient communications, as well as the

relationship between patients and the physician's agents. 19 Although practically
all states hold that the psychotherapist privilege must be protected to ensure that
patients make full disclosures, a minority of states assume that people
60
12 Martha M. Kendrick et al., The Physician-Patient, Psychotherapist-Patient, and
Related Privileges, in 2 TESTIMONIAL PRIVILEGES 7.05 (Scott Stone &
Robert Tay lor eds., 2d ed. 1993).
13 Genovese v. Usner, 602 So. 2d 1084 (La. Ct. App. 1992).
14 White v. State, 180 Ga. App. 185, 348 S.E.2d 728 (Ct. App. 1986). In a criminal law
case, the U.S. Supreme Court extended the same degree of protection to both social
workers and psy chotherapists. Jaffe v. Redmond, 518 U.S. 1 (1996).
15 Martha M. Kendrick et al., The Physician-Patient, Psychotherapist-Patient, and Related
Privileges, in 2 TESTIMONIAL PRIVILEGES 7.05 (Scott Stone & Robert Tay lor eds.,
2d ed. 1993).
16 Genovese v. Usner, 602 So. 2d 1084 (La. Ct. App. 1992); Eichenberger v.
Eichenberger, 82 Ohio App. 3d 809, 613 N.E.2d 678 (Ct. App. 1992).
17 CAL. EVID. CODE 1010(g) et seq. (West 1995); IOWA CODE ANN. 622.10
(West Supp. 1997); Amburgey v. Central Kentucky Reg'l Mental Health Bd., Inc., 663
S.W.2d 952 (Ky. Ct. App. 1983); Johnson v. Johnson, 839 S.W.2d 714 (Mo. Ct. App. 1992);
R.I. GEN. LAWS 5-37.3-3 et seq. (Supp. 1997); Kalenevitch v. Finger, 407 Pa. Super.
431, 595 A.2d 1224 (Super. Ct. 1991); W. VA. CODE 27-3-1 (1992); but see My ers v.
State, 251 Ga. 883, 310 S.E.2d 504 (1984).
18 People v. Gomez, 134 Cal. App. 3d 874, 185 Cal. Rptr. 155 (Ct. App. 1982); Lipsey v.
State, 170 Ga. App. 770, 318 S.E.2d 184 (Ct. App. 1984); State v. Edwards, 918 S.W.2d 841
(Mo. Ct. App. 1996); TENN. CODE ANN. 63-22-114 (1997); State v. Gotfrey, 598 P.2d
1325 (Utah 1979).
19 Desai v. Blue Shield of Northeastern New York, Inc., 146 A.D.2d 264, 540 N.Y.S.2d
569 (App. Div. 1989); People v. Hanf, 159 Misc. 2d 748, 611 N.Y.S.2d 85 (Monroe County
Ct. 1994); but see State v. Tatro, 161 Vt. 182, 635 A.2d 1204 (1993).
61
Page 18
will consult a doctor for medical treatment whether there is a physician-patient

privilege or not, and therefore do not afford a privilege to such consultations. 20
Some states, however, do provide a testimonial privilege for sexual-assault21 or
domestic-violence counselors. 22
Clergy-Communicant Privilege
The clergy-communicant relationship is also recognized23 and protected. 24 Like

the other privileges in this chapter, state legislatures established the clergy-
communicant privilege by statute. 25 Clergy members may act as marriage
counselors for estranged spouses, and these communications may be protected
by the privilege. 26
Although the clergy-communicant privilege may apply to nuns, 27 most case law
holds that the privilege does not apply to nonordained clergy and lay spiritual
advisors. 28 The privilege may apply to clergy assistants when the assistant is
indispensable to the work of the minister. 29 The clergy-communicant privilege
does not cover facts that were not obtained from confidential communications,
however. 30
20 The nine states that do not offer a phy sician-patient privilege are Alabama,
Florida, Kentucky, Mary land, Massachusetts, New Mexico, South Carolina,
Tennessee, and West Virginia. Martha M. Kendrick et al., The Physician-Patient,
Psychotherapist-Patient, and Related Privileges, in 2 TESTIMONIAL
PRIVILEGES ch. 7 (Scott Stone & Robert Tay lor eds., 2d ed. 1993).
21 ALA. CODE 15-23-42 (1995); ALASKA STAT. 09.25.400 (Michie 1996); CAL.
EVID. CODE 1035 et seq. (West 1995); CONN. GEN. STAT. ANN. 52-146k (West
Supp. 1997); 735 ILL. COMP. STAT. 3/8-802.1 (West 1997); IND. CODE ANN. 35-37-
6-1 et seq. (Michie 1994); ME. REV. STAT. ANN. tit. 16, 53-A (West Supp. 1997);
MASS. GEN. LAWS ANN. ch. 233, 20J (West Supp. 1997); N.J. STAT. ANN.
2A:84A-22.13 et seq. (West 1994); 42 PA. CONS. STAT. ANN. 5945.1 (West Supp.
1997); UTAH CODE ANN. 78-24-8(6), 78-3c-1 et seq. (1996); WYO. STAT. ANN.
1-12-116 (Michie 1997).
62
22 ALA. CODE 15-23-42 (1995); ALASKA STAT. 09.25.400 (Michie 1996); CAL.
EVID. CODE 1037 et seq. (West 1995); CONN. GEN. STAT. ANN. 52-146k (West
Supp. 1997); 750 ILL. COMP. STAT. 60/227 (West 1997); IND. CODE ANN. 35-37-6-
1 et seq. (Michie 1994); MASS. GEN. LAWS ANN. ch. 233, 20K (West Supp. 1997);
N.J. STAT. ANN. 2A:84A-22.13 et seq. (West 1994); WYO. STAT. ANN. 1-12-116
(Michie 1997).
23In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990); State v. Alspach, 524
N.W.2d 665 (Iowa 1994); Nicholson v. Wittig, 832 S.W.2d 681 (Tex. App. 1992).
24 Trammel v. United States, 445 U.S. 40 (1980).
25 Killingsworth v. Killingsworth, 283 Ala. 345, 217 So. 2d 57 (1968); see Appendix C.
26 Pardie v. Pardie, 158 N.W.2d 641 (Iowa 1968); N.J. STAT. ANN. 2A:84A-23 (West
Supp. 1997); Ziske v. Luskin, 138 Misc. 2d 38, 524 N.Y.S.2d 145 (Sup. Ct. 1987); Kruglikov
v. Kruglikov, 29 Misc. 2d 17, 217 N.Y.S.2d 845 (Sup. Ct. 1961); Spencer v. Spencer, 61
N.C. App. 535, 301 S.E.2d 411 (Ct. App. 1983); State v. Cox, 87 Or. App. 443, 742 P.2d 694
(Ct. App. 1987); Rivers v. Rivers, 292 S.C. 21, 354 S.E.2d 784 (1987); but see Simrin v.
Simrin, 233 Cal. App. 2d 90, 43 Cal. Rptr. 376 (Ct. App. 1965); Farner v. Farner, 480
N.E.2d 251 (Ind. Ct. App. 1985).
27 Eckmann v. Board of Educ., 106 F.R.D. 70 (E.D. Mo. 1985); but see In re Murtha, 115
N.J. Super. 380, 279 A.2d 889 (Super. Ct. App. Div. 1971); Masquat v. Maguire, 638 P.2d
1105 (Okla. 1981).
28 Manous v. State, 200 Ga. App. 293, 407 S.E.2d 779 (Ct. App. 1991); Rutledge v. State,
525 N.E.2d 326 (Ind. 1988); State v. Boobar, 637 A.2d 1162 (Me. 1994); State v. Buss, 76
Wash. App. 780, 887 P.2d 920 (Ct. App. 1995).
29 People v. Diercks, 88 Ill. App. 3d 1073, 411 N.E.2d 97 (App. Ct. 1980).
30 Jones v. Department of Human Resources, 168 Ga. App. 915, 310 S.E.2d 753 (Ct. App.
1983); State v. Hedger, 115 Idaho 598, 768 P.2d 1331 (1989).
63
Waiver
In states where joint marriage counseling is covered by the clergy-communicant pr

possesses the privilege, both spouses must waive this privilege in litigation. 31 Law
statutes do differ, as some state statutes give this privilege to the clergy. 32
Accountant-Client Privilege
Because there is no common-law recognition of an accountant-client privilege, stat

privilege. 33 The client who engages the services of an accountant will most likely
Most of the case law dealing with accountant-client privilege pertains to defendants
criminal prosecutions. 35 There is case law applicable to the civil context, which ho
communications made only to a certified public accountant, or public accountant.
into the facts of the case to prevent abuse of this privilege. 37
The statutes on the chart to the right do not use the term "privilege," but do deem
confidential.
State Authority
Illinois 225 Ill. Comp. Stat. 450/27
Kentucky Ky. Rev. Stat. Ann. 325.440
Maine Me. Rev. Stat. Ann. tit. 32, 12279
Massachusetts Mass. Gen. Laws Ann. ch. 112, 87E
Rhode Island R.I. Gen. Laws 5-3.1-23
Vermont Vt. Stat. Ann. tit. 26, 82
Washington Wash. Rev. Code Ann. 18.04.405
31 Pardie v. Pardie, 158 N.W.2d 641 (Iowa 1968); Ziske v. Luskin, 138 Misc. 2d 38, 524 N.Y.S
De'Udy, 130 Misc. 2d 168, 495 N.Y.S.2d 616 (Sup. Ct. 1985); Spencer v. Spencer, 61 N.C. Ap
1983); see also Nicholson v. Wittig, 832 S.W.2d 681 (Tex. App. 1992).
32 735 ILL. COMP. STAT. 5/8-803 (West 1997); MD. CODE ANN., CTS. & JUD. PROC. 9
64
640 A.2d 817 (1994); VA. CODE ANN. 8.01-400 (Michie Supp. 1997); Seidman v. Fishburn
(4th Cir. 1984).
33See Appendix D.
34 Landau v. Bailey, 629 N.E.2d 264 (Ind. Ct. App. 1994).
35See Francis M. Dougherty, Annotation, Privileged Communications between Accountant an

36 Dees v. Scott, 347 So. 2d 475 (Fla. Dist. Ct. App. 1977).
37 Paper Corp. of Am. v. Schneider, 563 So. 2d 1134 (Fla. Dist. Ct. App. 1990).
65
Page 20
Waiver
Spouses who are the joint clients of an accountant may not resort to the
accountant-client privilege when the privileged information is relevant to divorce
litigation. 38
When Privilege May Not Be Invoked
[F]our fundamental conditions are recognized as necessary to the establishment

of a privilege against the disclosure of communications:
(1) The communications must originate in confidence that they will not be
disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to
be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct
disposal of litigation. 39
The quote above summarizes when a testimonial privilege may not be invoked.
If the communication is not in confidence, if the relationship is one that society
does not afford deference, or if there is a countervailing concern that dominates
the privilege, a court may hold that the privilege cannot be invoked. Below is
case law that addresses each of these situations.
66
Lack of Confidentiality
The psychotherapist, 40 physician, 41 and clergy42 privileges do not apply if there

is no expectation of confidentiality. The confidentiality of communications
38 Levin v. Levin, 43 Md. App. 380, 405 A.2d 770 (Ct. Spec. App. 1979); see also
Transmark, USA v. Department of Ins., 631 So. 2d 1112 (Fla. Dist. Ct. App. 1994);
Harwood v. Randolph Harwood, Inc., 124 Mich. App. 137, 333 N.W.2d 609 (Ct.
App. 1983).
39 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW 2285
(McNaughton rev. 1961).
40 McMaster v. Iowa Bd. of Psy chology Exam'rs, 509 N.W.2d 754 (Iowa 1993);
Neimann v. Cooley, 93 Ohio App. 3d 81, 637 N.E.2d 943 (Ct. App. 1994); J.N. ex rel.
Hager v. Bellingham Sch. Dist. No. 501, 74 Wash. App. 49, 871 P.2d 1106 (Ct. App. 1994).
41 State v. Gonzales, 121 N.M. 421, 912 P.2d 297 (Ct. App. 1996); State v. General Elec.
Co., 201 A.D.2d 802, 607 N.Y.S.2d 181 (App. Div. 1994); Lora v. Board of Educ. of City
of New York., 74 F.R.D. 565 (E.D.N.Y. 1977).
42 State v. Orfi, 511 N.W.2d 464 (Minn. Ct. App. 1994); State v. List, 270 N.J. Super. 169,
636 A.2d 1054 (Super. Ct. App. Div. 1993).
67
Page 21
with clergy may43 or may not44 be ruined if the consultation is in an area where
third parties periodically pass through. When the individual who could assert an
accountant-client privilege treats the information in an unconfidential manner,
the information also loses its privileged status. 45
Type of Relationship
The psychotherapist, physician, and clergy46 privileges apply only to

communications made to a person in his or her professional capacity. The
purpose of the consultation with a psychotherapist47 or physician48 must be
related to diagnosis or treatment to be privileged.
Clergy
The penitent must initiate a consultation with clergy for the communication to
be privileged. 49 Further, the communication must be confessional in nature. 50
The communication also must be required by the teachings of the church or
synagogue;51 for instance, the Baptist Church has no course of discipline
requiring a formal confession of sin. 52 One jurisdiction forgoes the confessional
aspect, and requires only that the communication be made pursuant to the
church's discipline. 53
Injury to the Relationship Less Than the Benefit Gained
Most courts apply a balancing test of the need for the evidence weighed against
the need for confidentiality. 54 In the context of family law, courts have held that
the above privileges do not apply in custody disputes; the primary rationale is
that the best interests of the child outweigh the benefit of keeping
43 State v. Gardiner, 127 Idaho 156, 898 P.2d 615 (Ct. App. 1995); State v. Melvin,
132 N.H. 308, 564 A.2d 458 (1989).
68
44 Nicholson v. Wittig, 832 S. W.2d 681 (Tex. App. 1992).
45 Savino v. Luciano, 92 So. 2d 817 (Fla. 1957).

46 State v. Nunez, 162 Vt. 615, 647 A.2d 1007 (1994).
47 Kimble v. Kimble, 240 Ga. 100, 239 S.E.2d 676 (1977).

48 Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (Super. Ct. Law
Div. 1987); Farrow v. Allen, 194 A.D.2d 40, 608 N.Y.S.2d 1 (App. Div. 1993); Niemann v.
Cooley, 93 Ohio App. 3d 81, 637 N.E.2d 943 (Ct. App. 1994).
49 Santmier v. Santmier, 494 So. 2d 95 (Ala. Civ. App. 1986); In re N. and G. Children,
176 A.D.2d 504, 574 N.Y.S.2d 696 (App. Div. 1991).
50 State v. Orfi, 511 N.W.2d 464 (Minn. Ct. App. 1994); Hutchinson v. Luddy, 414 Pa.
Super. 138, 606 A.2d 905 (Super. Ct. 1992); Easley v. State, 837 S.W.2d 854 (Tex. App.
1992).
51 Alford v. Johnson, 103 Ark. 236, 146 S.W. 516 (1912); Angleton v. Angleton, 84 Idaho
184, 370 P.2d 788 (1962).
52 Bonham v. State, 644 N.E.2d 1223 (Ind. 1994).
53 Scott v. Hammock, 870 P.2d 947 (Utah 1994).
54 Redding v. Virginia Mason Med. Ctr., 75 Wash. App. 424, 878 P.2d 483 (Ct. App. 1994);
In re Coverdell, 39 Wash. App. 887, 696 P.2d 1241 (Ct. App. 1984).
69
Page 22
the communications confidential. 55 Another rationale that renders the therapist-

patient privilege inapplicable is that a parent who makes an affirmative request
for custody makes his or her mental condition a relevant issue. 56
Conclusion
At common law, all evidence was admissible at trial. The psychotherapist,

physician, and clergy privileges are all statutory creations that interfere with the
production of evidence. There are noticeable conflicts when the common law and
privilege statutes interact.
There is a tension between these privileges and the courts when applied; courts
may limit the privileges by narrowly construing them, creating case law
exceptions to them, or using balancing tests to overcome them.
For example, courts narrow the psychotherapist-patient and physician-patient

privileges by adhering to the view that only communications relating to
treatment or diagnosis are considered privileged. This means that spurious
comments unrelated to treatment are admissible. Communications to clergy are
privileged only pursuant to a church doctrine, where the nature of the
communication is confessional.
Courts also apply various exceptions to the privileges. The privilege may not
apply to auxiliary personnel, such as student interns, intake nurses, or members
of the nunnery. The privileges fail when the communication was not
confidential, or when the patient or penitent waives the privilege.
The courts may determine that the need for the information outweighs its
confidential nature. This most often happens when the state's role as parens
patriae57 outweighs the confidentiality of the information.
70
As statutory creations, these privileges vary tremendously among jurisdictions.
However, the underlying policy is clear: society values relationships
55 Miraglia v. Miraglia, 462 So. 2d 507 (Fla. Dist. Ct. App. 1984); Critchlow v.
Critchlow, 347 So. 2d 453 (Fla. Dist. Ct. App. 1977); Marriage of Kiister, 245 Kan.
199, 777 P.2d 272 (1989); Carney v. Carney, 525 So. 2d 357 (La. Ct. App. 1988);
Roth v. Roth, 793 S.W.2d 590 (Mo. Ct. App. 1990); M. v. K., 186 N.J. Super. 363,
452 A.2d 704 (Super. Ct. Ch. Div. 1982); DeBlasio v. DeBlasio, 187 A.D.2d 551, 590
N.Y.S.2d 227 (App. Div. 1992); Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d
382 (App. Div. 1978); Smith v. Gay le, 834 S.W.2d 105 (Tex. App. 1992); Cheatham
v. Rogers, 824 S.W.2d 231 (Tex. App. 1992); Marriage of Nordby, 41 Wash. App.
531, 705 P.2d 277 (Ct. App. 1985); but see Kimble v. Kimble, 240 Ga. 100, 239
S.E.2d 676 (1977); Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988). A
court may also construe a privilege narrowly to serve the best interests of a child.
Santmier v. Santmier, 494 So. 2d 95 (Ala. Civ. App. 1986).
56 Critchlow v. Critchlow, 347 So. 2d 453 (Fla. Dist. Ct. App. 1977); Marriage of Lombaer,
200 Ill. App. 3d 712, 558 N.E.2d 388 (App. Ct. 1990); Owen v. Owen, 563 N.E.2d 605
(Ind. 1990); Werner v. Kiewer, 238 Kan. 289, 710 P.2d 1250 (1985); Atwood v. Atwood,
550 S.W.2d 465 (Ky. 1976); Kirkley v. Kirkley, 575 So. 2d 509 (La. Ct. App. 1991);
Husgen v. Stussie, 617 S.W.2d 414 (Mo. Ct. App. 1981); Proschold v. Proschold, 114 Misc.
2d 568, 451 N.Y.S.2d 956 (Sup. Ct. 1982); Marriage of Nordby, 41 Wash. App. 531, 705
P.2d 277 (Ct. App. 1985).
57See Chapter 11.
71
Page 23
with physicians, psychotherapists, and clergy, and these relationships are

protected to a limited extent. In connection with divorce litigation, most states
recognize that marriage counselors, social workers, and domestic-violence
counselors play a vital role in modern-day society, and protect the
communications between these professionals and their patients. Further, clergy
members who act as marriage counselors may be protected under the statutes
that establish a testimonial privilege for clergy, and may also be protected by the
statutes that provide a testimonial privilege to marriage counselors.
In sum, when a marriage counselor in a deposition or on the witness stand

claims the information sought is confidential and protected by a privilege, the
court must then determine whether claiming a testimonial privilege is proper
under the circumstances. The determinants include whether there is an
applicable statute, whether the information is actually confidential, who holds
the privilege, and whether an exception applies.
72
Page 25
Chapter 3
Wiretapping
On the basis of summaries of the 473 cases, reported by the FBI, the [National
Commission for the Review of Federal and State Laws Relating to Wiretapping and
Electronic Surveillance] was able to make a reasonably valid assessment of the
motivation for conducting illegal electronic surveillance. Of the 408 cases in which
motive could be identified, approximately 68 percent involved marital wiretapping.
Another 11 percent were the result of other domestic surveillance, including
parental and courtship eavesdropping.1
. . . In the private sector, the most prevalent form of illegal eavesdropping occurs in
the context of marital or family relations. . . . Ty pically, marital eavesdropping
occurs when there is suspicion of infidelity.2
The availability and common use of eavesdropping and recording devices are
great temptations for divorcing clients, particularly those who are cognizant of
the relationship between unseemly conduct and custody/financial issues in
domestic litigation. Frequently clients will inform their lawyers of the existence
of voice-activated recorders in their homes. It is also not uncommon for clients
to hand deliver tape recordings of third-party conversations to their lawyers or
paralegals, which confirm their suspicions of infidelity.
1 NATIONAL COMM'N FOR THE REVIEW OF FED. AND STATE LAWS

RELATING TO WIRETAPPING AND ELEC. SURVEILLANCE, ELECTRONIC
SURVEILLANCE 160 (1976), cited in part in Allan H. Zerman & Cary J.
Mogerman, Wiretapping and Divorce: A Survey and Analysis of the Federal and
State Laws Relating to Electronic Eavesdropping and Their Application in
Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW. 227 (1994).
2 NATIONAL COMM'N FOR THE REVIEW OF FED. AND STATE LAWS RELATING
TO WIRETAPPING AND ELEC. SURVEILLANCE, ELECTRONIC SURVEILLANCE
161 (1976).
73
74
Page 26
Generally, the client will have an unsophisticated expectation that the

incriminating recordings are of great value to the case.
In the scenarios described above, the client and lawyer have created situations
that have the potential to subject both to civil liability and criminal penalties
under state, if not federal, law. Because marital wiretapping is so common, a
divorce lawyer must be aware of the laws applicable to wiretaps and recordation
of telephone conversations to avoid personal liability and penalties, as well as to
advise divorcing clients competently.
This chapter starts by presenting the federal law that applies to wiretapping:
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III,
or the Act). 3 It delineates communications protected by the Act and the types of
relief afforded by the Act, as well as who is subject to the Act. The chapter also
examines how, through the evolution of the concepts of interspousal and parental
immunity, some federal courts have inconsistently construed Title III.
The chapter provides an overview of state wiretap laws, which usually provide
more protection to communications than Title III. Finally, it addresses the
admissibility of audiotapes in domestic relations proceedings.
Federal Law
Title III, or the Wire Interception and Interception of All Communications Act,
superseded Section 605 of the Federal Communications Act of 1934. 4 Despite
Section 605's existence, Title III was the first statutory scheme that effectively
regulated and provided federal criminal sanctions for wiretapping activity. 5 Title
III is codified in Title 18, Chapter 119, Sections 2510 through 2521 of the
United States Code. Because of technological advances such as cellular,
cordless, and fiber-optic telephonic communications, 6 Congress
comprehensively updated Title III with the Electronic Communications Privacy
75
Act of 1986. 7 The Act was amended again in 1994 by the Communications
Assistance for Law Enforcement Act. 8
3 18 U.S.C.A. 251021 (West Supp. 1996).

4 JAMES G. CARR, THE LAW OF ELECTRONIC SURVEILLANCE 1.3(b), at 1-9
(1996). The Act of 1934 is codified at 47 U.S.C. 151611 (1982 & Supp. V 1987).
5 NATIONAL COMM'N FOR THE REVIEW OF FED. AND STATE LAWS RELATING
TO WIRETAPPING AND ELEC. SURVEILLANCE, ELECTRONIC SURVEILLANCE
159 (1976). See also United States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976).
6 Allan H. Zerman & Cary J. Mogerman, Wiretapping and Divorce: A Survey and
Analysis of the Federal and State Laws Relating to Electronic Eavesdropping and Their
Application in Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW. 227 (1994).
7 CLIFFORD S. FISHMAN, WIRETAPPING AND EAVESDROPPING 5.1, at 31
(Cum. Supp. 1994).
8 Laura W. Morgan, Interfamilial Wiretapping and Surveillance, 12 DIVORCE LITIG.
235 (Dec. 1996).
76
Page 27
Scope of Protection
Sections 2510(1) and 2510(2) define the communications protected by the

statute; a lawyer who concludes that a communication does not fall within the
purview of Section 2510(1) must still analyze whether the language of Section
2510(2) brings the communication within Title III's scope. Although the
following terms are technical and very specific, keep in mind that in most
domestic cases the questioned activity will be the recordation of a telephone
conversation by an individual who is not a party to the conversation. These
communications are virtually always covered by the Act.
Section 2510(2), which is rooted in the constitutional right to privacy, 9 defines

oral communications protected by Title III as follows:
. . . any oral communication uttered by a person . . .
This means it is produced by sound.
exhibiting an expectation that such communication is not subject to

interception
This is the person's unique subjective expectation.
under circumstances justifying such expectation,
This is the objective analysis of the circumstance.
but . . . does not include any electronic communication. 10
Electronic communications are defined as ''any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any nature transmitted in whole or in
77
part by a wire, radio, electromagnetic, photo electronic or photo optical system
that affects interstate or foreign commerce."11 There are three exceptions to this
definition, which are tangential to the wiretapping issues that arise during
divorce proceedings.
Section 2510(1), which is rooted in Congress's Commerce Clause power, 12

provides five elements for what constitutes a "wire communication" deserving
Title III protection:
. . . any aural transfer . . .
Aural means "perceived through the sense of hearing."13 Hence, the use of a pen
register, a device that merely records the number from which a call is
9 CLIFFORD S. FISHMAN, WIRETAPPING AND EAVESDROPPING 4.1, at

26/25 (Cum. Supp. 1994).
10 18 U.S.C.A. 2510(2) (West Supp. 1996).
11 18 U.S.C.A. 2510(12) (West Supp. 1996).

(Cum. Supp. 1994).
13 Smith v. Wunker, 356 F. Supp. 44 (S.D. Ohio 1972).
78
Page 28
made, does not violate the statute because there is no real "aural acquisition."14
. . . made in whole or in part through the use of facilities for the transmission
of communications by the aid of wire, cable, or other like connection . . .
This includes the interception of telephone, telegraph, telegram, cellular, and

cordless-phone communications. The following Senate Report excerpt provides
a better understanding of the reasoning behind this language:
Thus, a wire communication encompasses the whole of a voice telephone

transmission even if part of the transmission is carried by fiber optic cable or by
radioas in the case of cellular telephones and long distance satellite or microwave
facilities. The conversion of a voice signal to digital form for purposes of
transmission does not render the communication non-wire.15
. . . between the point of origin and the point of reception (including the use
of such connection in a switching station) . . .
In essence, overhearing one side of the conversation (or recording one side of the
conversation) does not constitute an interception as long as the interception
takes place at the point of origin or the point of reception, but not in between.
Some courts bar claims on the rationale that there is no expectation of privacy,
or because no wire communication took place. 16
The term "switching station" was introduced in 1986, and implicitly includes
cellular communications, which are transmitted in part by wire and in part by
radio, the connection between the sending and receiving phones being made by
a switching station. 17 Case law generally holds that cellular telephones are
covered by Title III. 18
. . . furnished or operated by any person engaged in providing or operating

such facilities for the transmission of interstate or foreign communications or
79
communications affecting interstate or foreign commerce . . .
Essentially, the telephone system involved must cross state lines or be part of a
larger system that crosses state lines. In this respect, conversations that take
14 Michigan Bell Tel. Co. v. United States, 565 F.2d 385 (6th Cir. 1977).
15 S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3566; cited in
CLIFFORD S. FISHMAN, WIRETAPPING AND EAVESDROPPING 7.5, at 4243
(Cum. Supp. 1994).
16 Wilks v. Commonwealth, 217 Va. 885, 234 S.E.2d 250 (1977).

(Cum. Supp. 1994).
18In re Askin, 47 F.3d 100 (4th Cir. 1995).
80
Page 29
place over intercoms as opposed to telephone systems apparently are not

protected by Title III. 19
. . . and such term [wire communication] includes any electronic storage of

such communication.
This language was added by the Electronic Communications Privacy Act of

1986 and is not relevant to Title III; it is relevant only in connection with the
Electronic Communications Privacy Act of 1986, which is codified at 18
U.S.C. 270110. 20
Note that the final clause, which excepted the radio portion of a cordless-
telephone communication from protection by the Act, has been eliminated; the
radio portion of a cordless-telephone call is now protected by Title III:21
. . . [W]hile the portion of cordless telephone communications occurring between

the handset and base unit was excluded from the [Electronic Communications
Privacy Act]'s privacy protections, the 1991 Privacy and Technology Task Force
found that "[t]he cordless phone, far from being a novelty item used only at
'poolside,' has become ubiquitous. . . . More and more communications are being
carried out by people [using cordless phones] in private, in their homes and offices,
with an expectation that such calls are just like any other phone call."22
Nature of Liability
This section first discusses the types of activities prohibited by Title III, and
then addresses the types of relief available.
Prohibited Activities
Section 2511 sets out four prohibited activities: the interception of such
communication, disclosing the contents of such communication, using such
81
communication, or procuring another to intercept, disclose, or use such
communication. 23
Interception24
Interception means the aural or other acquisition of the contents of any

communication through the use of any electronic, mechanical, or other device. 25
19 People v. Santos, 26 Cal. App. 3d 397, 102 Cal. Rptr. 678 (1972).

(Cum. Supp. 1994).
235 (Dec. 1996).
22 H.R. Rep. No. 103-827, at 17 (1994), reprinted in 1994 U.S.C.C.A.N. 3497.
23 18 U.S.C.A. 2511 (West Supp. 1996).
24 18 U.S.C.A. 2511(1)(a) (West Supp. 1996).
25 18 U.S.C.A. 2510(4) (West Supp. 1996).
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Page 30
The contents include any information concerning the substance, purport, or

meaning of the communication. 26 However, there is no interception when a
party to the converstion consents to the recording, 27 or records the conversation
himself or herself. 28 There is also no interception when the conversation is
merely overheard by one standing near a party to the conversation, 29 even if that
side of the conversation is recorded. 30
Disclosure and Use31
Disclosure involves the playing of the tape to another. 32 This may be true even
if the individual for whom the tape is played is a lawyer. 33 Case law suggests
that there may be a cause of action for an interception, and a separate cause of
action for use or disclosure. 34
Disclosure and use present the most likely areas for lawyer liability under Title
III. 35 A lawyer can be held liable for using or disclosing an intercepted
communication when the defendant lawyer, beyond a reasonable doubt, knew or
had reason to know that the information obtained was in violation of Section
2511. 36 However, justifiable reliance by a lawyer on the current case law may
provide a defense to lawyer liability. 37
Even if the contents of the intercepted communications are not revealed to a

potential defendant, that individual may violate the statute if he or she uses the
information for any purpose, including obtaining other information.
Procurement
It is also illegal to induce another to violate Title III. 38 Thus, individuals are
often sued for hiring another to intercept, disclose, or use a wiretap. 39
Consent Exception
83
There is a notable exception: an individual is allowed to record any telephone
conversation in which he or she is a participant or when one of the parties to
26 18 U.S.C.A. 2510(8) (West Supp. 1996).

27 Smith v. Cincinnati Post and Times Star, 475 F.2d 740 (10th Cir. 1973).
28 United States v. Turk, 526 F.2d 654 (11th Cir. 1976).
29 United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974).
30 People v. Siripongs, 45 Cal. 3d 548, 754 P.2d 1306, 247 Cal. Rptr. 729 (1988).
31 18 U.S.C.A. 2511(1)(c)(d) (West Supp. 1996).

32 Nations v. Nations, 670 F. Supp. 1432 (W.D. Ark. 1987).
33 Sound Video Unlimited, Inc. v. Video Shack, Inc., 661 F. Supp. 1482 (N.D. Ill. 1987).
34 Fultz v. Gilliam, 942 F.2d 396, 400 n.4 (6th Cir. 1991).
Application in Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW. 227, 247 (1994).
36 United States v. Wuliger, 981 F.2d 1497 (6th Cir. 1992); Thompson v. Dulaney, 970 F.2d
744, 749 (10th Cir. 1992).
37 Rice v. Rice, 951 F.2d 942 (8th Cir. 1991); Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa.
1979).
38 18 U.S.C.A. 2511(1)(b) (West Supp. 1996).
39 Remington v. Remington, 393 F. Supp. 898 (E.D. Pa. 1975).
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Page 31
the communication has given prior consent to the interception, unless the
communication is intercepted for the purpose of committing any criminal or
tortious act that violates either federal or state law. 40 There is one case that
equates expressed belief that there may be a wiretap with consent to the
wiretap. 41
Violations of Section 2511 carry penalties including imprisonment for up to five

years, and fines up to $500, in addition to mandatory civil fines of $500. 42 The
1994 changes subject an individual who intercepts the radio portion of a
cordless communication to criminal fines, but not imprisonment. 43
Relief Available
Relief in the civil context may be obtained in three ways under Title III.
Injunctive relief is available to prevent the use of illegally obtained information.
Monetary damages for violation of the statute are available, although the case
law provides no guidelines for specific amounts. 44 Finally, although not
discussed here, Section 2521 authorizes the Attorney General to initiate an
action to enjoin such illegal activity.
Injunctive Relief
Section 2515, which provides for injunctions against illegal interceptions,

serves not only to protect private communications but also to insure that courts
do not become parties to illegal conduct. 45 The court cannot exercise discretion
by not ordering suppression, notwithstanding the criminal and civil damage
sections provided by Title III. 46 Prohibition against use of information in any
court proceedings includes not only information contained in the intercepted
communication itself, but also evidence obtained as a result of that information.
This is similar to the "fruit of the poisonous tree" doctrine in criminal law. 47
85
Monetary Damages
Section 2520 provides that any aggrieved individual is entitled to institute a

civil action against a person or entity engaged in a violation of Title III. In
40 18 U.S.C.A. 2511(2)(d) (West Supp. 1996); Roberts v. Americable Intern. Inc.,

883 F. Supp. 499 (E.D. Cal. 1995).
41 Stewart v. Stewart, 645 So. 2d 1319 (Miss. 1994).
42 18 U.S.C.A. 2511(4)(5) (West Supp. 1996).
43 18 U.S.C.A. 2511(4)(b)(ii) (West Supp. 1996).
44 Nalley v. Nalley, 53 F.3d 649 (4th Cir. 1995).
45In re Hawkins, 624 F.2d 1160 (3d Cir. 1980).
46 United States v. Cihal, 336 F. Supp. 261 (W.D. Pa.), aff'd, 497 F.2d 922 (3d Cir. 1972).
47 United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972).
86
Page 32
addition to preliminary and other equitable or declaratory relief, parties are

entitled to receive liquidated or actual damages, punitive damages, reasonable
attorneys' fees, and other litigation costs.
The statute of limitations for bringing such a civil action is two years. The two-
year period begins to run after the date upon which the claimant had a reasonable
opportunity to discover the violation. 48 According to case law, this means the
cause of action accrues when the plaintiff discoversor by the exercise of due
diligence could discoverthat his or her communication has been intercepted. 49
This is true even if the individual does not yet know who intercepted the
communication. 50
Intrafamilial Immunities
Some federal court districts have not applied the plain, unambiguous language51
of Title III to domestic situations, such as interspousal and parental
surveillance. Instead, this minority of courts imply an interspousal exception to
Title III. The interspousal tort exception, which is a remnant of the time when
women had no legal identity, 52 excludes over half the cases involving
surveillance from the ken of Title III. 53 A word of caution: even though a spouse
may be free from sanction, detectives54 and lawyers55 who assist in interspousal
surveillance are not immune from liability and sanctions under Title III. They
may further be subject to discipline through state bar actions.
The logical extension of interspousal immunity is finding a parental exception

to the Act, based on the same reasoning, as well as a policy concern that is
more compelling in this latter context: the promotion of familial harmony. 56
This section provides a review of the case law's treatment of interspousal and
parental immunity.
48 18 U.S.C.A. 2520(e) (West Supp. 1996).
87
49 Brown v. American Broad. Co., Inc., 704 F.2d 1296 (4th Cir. 1983); Awbrey v. Great
Atl. and Pac. Tea Co., Inc., 505 F. Supp. 604 (N.D. Ga. 1980).
50 Andes v. Knox, 905 F.2d 188 (8th Cir. 1990).
51 For the proposition that a statute's plain language should control, see United States v.
Underhill, 813 F.2d 105 (6th Cir. 1987) and Patagonia Corp. v. Board of Governors of
Federal Reserve System, 517 F.2d 803 (9th Cir. 1975).
52 Johnathan D. Niemey er, All in the Family: Interspousal and Parental Wiretapping
under Title III of the Omnibus Crime Act, 81 KY. L.J. 237, 24647 (1992/93).
53 NATIONAL COMM'N FOR THE REVIEW OF FED. AND STATE LAWS
RELATING TO WIRETAPPING AND ELEC. SURVEILLANCE, ELECTRONIC
SURVEILLANCE 160 (1976).
54 Anthony v. United States, 667 F.2d 870 (10th Cir. 1981); see also White v. Weiss, 535
F.2d 1067 (8th Cir. 1976); Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974).
55See Hey man v. Hey man, 548 F. Supp. 1041 (N.D. Ill. 1982); Kratz v. Kratz, 477 F. Supp.
463 (E.D. Pa. 1979).
88
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Minority View
The first reported case to address whether there was an implied interspousal
exception in Title III was Simpson v. Simpson. 57 In Simpson, a husband, still
living in the marital home with his wife, tapped the phones and tape-recorded
"mildly compromising" conversations between his wife and another man. Based
on these tapes, the wife agreed to an uncontested divorce, and later brought a
civil suit against her ex-husband. 58
The Simpson court, in reading an exception into Title III, based its conclusions
on four premises. First, the Simpson court viewed a federal remedy for actions
traditionally left to states as being a "novel" idea that commanded affirmative
proof of congressional intent. 59 Second, upon researching the legislative
materials relating to Title III, the Simpson court found little concern expressed
about marital wiretapping. 60 Third, the Simpson court noted that Congress
allowed family members to intercept telephone conversations by use of an
extension phone in the family home, and saw no distinction between using an
extension phone and a wiretap. 61 Finally, the Simpson court noted the severity
of the criminal penalties, and questioned whether spouses should be subject to
Title III. 62
The Second63 and Ninth64 Circuits have also recognized an interspousal

exception to Title III.
Majority View
The seminal case challenging the Simpson view is United States v. Jones. 65 In
Jones, the husband, who was not living with his wife, intercepted her phone
calls from outside the curtilage of her residence, and secretly tapped her phones
while he was at her residence baby-sitting their children. 66 The U.S.
government garnered an indictment charging the husband with intercepting and
89
using the telephone conversations of his estranged wife. 67 In deciding whether to
follow Simpson, the Jones court called the conclusion reached in Simpson
"untenable because it contradicts both the explicit language of the statute and the
clear intent of Congress expressed in the Act's legislative history."68
57 Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974).

58Simpson, 490 F.2d at 804.
59Simpson, 490 F.2d at 80506.
60Simpson, 490 F.2d at 80809.

63 Anony mous v. Anony mous, 558 F.2d 677 (2d Cir. 1977); Lizza v. Lizza, 631 F. Supp. 529
(E.D.N.Y. 1986).
64 Perfit v. Perfit, 693 F. Supp. 851 (C.D. Cal. 1988).
65 United States v. Jones, 542 F.2d 661 (6th Cir. 1976).
66Jones, 542 F.2d at 663.
67Jones, 542 F.2d at 661.

68Jones, 542 F.2d at 667.
90
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The Jones court analyzed the legislative history, and came to a different
conclusion. The Jones court noted that even though the primary target of the
Omnibus Crime Control and Safe Streets Act of 1968 was organized crime, the
purpose of the Act was to institute a blanket prohibition on all unauthorized
electronic surveillance in the private sphere. 69 The circuit judges noted that the
legislative history did discuss the involvement of private investigators in
divorce disputes, but, unlike the Simpson panel, found no substantive difference
between electronic surveillance by a spouse and an intrusion by a third party
initiated by a spouse. 70 Further, the Jones court read Congress's silence about
marital surveillance differently from the Simpson court: Congress was aware of
domestic electronic surveillance and, because there was consensus about its
undesirability, Congress focused more on the issue of law enforcement
surveillance. 71
The Jones court, after applying the standard rules of statutory construction, did
not find an implied interspousal exception to the Act:
The explicit language of 18 U.S.C. 2511(1)(a) is that "any person" who violates
the section is liable to punishment "except as otherwise specifically provided."72
From this language, the Jones court aptly concluded that because Title III does
not specifically provide an interspousal exception, interspousal wiretapping
should be subject to Title III. 73
Finally, the Jones court questioned the Simpson court's reliance on the doctrine
of interspousal immunity; the Jones court pointed out that many states have
abandoned the doctrine of interspousal immunity, and the states that still
recognize the doctrine do not apply it in a criminal context. 74
There is case law suggesting that there is no interspousal exception in the

Third, 75 Fourth, 76 Sixth, 77 Seventh, 78 Eighth, 79 and Tenth80 Circuits.
91
69Jones, 542 F.2d at 668.
70Jones, 542 F.2d at 670.

71Jones, 542 F.2d at 671.
72Jones, 542 F.2d at 671.
73Jones, 542 F.2d at 671.

74Jones, 542 F.2d at 672.
75 Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa. 1979).
76 Pritchard v. Pritchard, 732 F.2d 372 (4th Cir. 1984).
77See United States v. Jones, 542 F.2d 661 (6th Cir. 1976); Fultz v. Gilliam, 942 F.2d 396
(6th Cir. 1991).
78 Walker v. Carter, 820 F. Supp. 1095 (C.D. Ill. 1993); Hey man v. Hey man, 548 F. Supp.
1041 (N.D. Ill. 1982).
79 Kempf v. Kempf, 868 F.2d 970 (8th Cir. 1989); Nations v. Nations, 670 F. Supp. 1432
(W.D. Ark. 1987); White v. Weiss, 535 F.2d 1067 (8th Cir. 1976).
80 Fly nn v. Fly nn, 560 F. Supp. 922 (N.D. Ohio 1983).
92
Page 35
Parental Immunity
The concept of parental immunity relies on the extension-phone exception and

the federal government's intent to avoid interference in family relationships. 81
Unlike interspousal immunity, however, parental immunity is rooted in the
doctrine of vicarious consent, where a parent can consent to the interceptions of a
son or daughter. 82
Parental immunity presents an issue that most federal courts have not addressed,
but has the potential to split the courts along different lines given the strong
policy concern of preserving the "undivorceable" parent-child relationship. 83
Courts in two circuits have intimated that the parental interceptions are
actionable under Title III. 84
State Law
Listed in Appendix E are the state wiretapping statutes. Generally, there is no

statutory provision for interspousal or parental immunity, with the lone
exception of the state of Oregon. 85 Missouri, however, went so far as to
specifically include interspousal interceptions in its statutory definition of
"intercept."86
Although there is some state case law following the Simpson view, 87 the general
trend has been for state courts, in interpreting their respective statutes, to
conclude that there are no domestic relations exceptions to their statutes. 88
81 Anony mous v. Anony mous, 558 F.2d 677 (2d Cir. 1977); Janecka v. Franklin, 684
F. Supp. 24 (S.D.N.Y. 1987); Scheib v. Grant, 814 F. Supp. 736 (N.D. Ill. 1993);
Newcombe v. Ingle, 944 F.2d 1534 (10th Cir. 1991).
235, 236 (Dec. 1996).
93
84 Thompson v. Dulaney, 970 F.2d 744 (10th Cir. 1992), order on remand, 838 F. Supp.
1535 (C.D. Utah 1993); Platt v. Platt, 951 F.2d 159 (8th Cir. 1989).
85 OR. REV. STAT. 165.540(3) (1990).
86 MO. REV. STAT. 542.400(6) (Supp. 1998).

87In re Lopp, 268 Ind. 690, 378 N.E.2d 414 (1979); Robinson v. Robinson, 499 So. 2d 152
(La. Ct. App. 1986); Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359 (1981); Baeber v.
Baeber, 41 Ohio Misc. 95, 70 Ohio Op. 2d 213 322 N.E.2d 910 (Com. Pl. 1974).
88Ex parte O'Daniel, 515 So. 2d 1250 (Ala. 1988); Hudson v. Hudson, 534 So. 2d 617
(Ala. Civ. App. 1988); People v. Otto, 2 Cal. 4th 1088, 831 P.2d 1178, 9 Cal. Rptr. 2d 596
(1992); Ribas v. Clark, 38 Cal. 3d 355, 696 P.2d 637, 212 Cal. Rptr. 143 (1985); State v.
Jock, 404 A.2d 518 (Del. Super. Ct. 1979); Burgess v. Burgess, 447 So. 2d 220 (Fla. 1984);
Markham v. Markham, 272 So. 2d 813 (Fla. 1973); Middleton v. Middleton, 259 Ga. 41,
376 S.E.2d 368 (1989); Ransom v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985); Staniford
v. Staniford, 89 Md. App. 826, 598 A.2d 495 (Ct. Spec. App. 1991); Young v. Young, 211
Mich. App. 446, 536 N.W.2d 254 (Ct. App. 1995); Stamme v. Stamme, 589 S.W.2d 50
(Mo. Ct. App. 1979); WcWha v. McWha, 241 Neb. 355, 488 N.W.2d 357 (1992); State v.
Lane, 279 N.J. Super. 209, 652 A.2d 724 (Super. Ct. App. Div. 1995); Scott v. Scott, 277
N.J. Super. 601, 649 A.2d 1372 (Super. Ct. Ch. Div. 1994); M.G. v. J.C., 254 N.J. Super. 470,
603 A.2d 990 (Super. Ct. Ch. Div. 1991); Berk v. Berk, 70 A.D.2d 943, 417 N.Y.S.2d 785
(App. Div. 1979); State v. Shaw, 103 N.C. App. 268, 404 S.E.2d 887 (Ct. App. 1991);
Pulawski v. Blais, 506 A.2d 76, 77 n.2 (R.I. 1986); Kent v. State, 809 S.W.2d 664 (Tex. App.
1991); Turner v. PV Int'l Corp., 765 S.W.2d 455 (Tex. App. 1988); State Dep't of Health &
Human Resources ex rel. Wright v. David L., 192 W. Va. 663, 453 S.E.2d 646 (1994).
94
Award of Punitive and Actual Damage
During the course of divorce litigation, Wife heard rumors that Husband electronic
electronic eavesdropping equipment, who unequivocally denied any electronic eave
employees, but Husband prevented this attempt by hiding his employee. Although
eavesdropping until six years later.
Wife later filed a trial amendment claiming damages for Husband's wiretapping her
Wife obtained evidence of the electronic eavesdropping. Based on the state's electro
and $1,000,000 in punitive damages. Husband appealed on the grounds that the st
that the punitive award was excessive. The court of appeals affirmed, writing as fol
Here, the trial court found, and we agree, that Parker's conduct of electronically bugging the
electronically eavesdropped to invade Shaw's attorney -client privilege and Shaw's attorney s'
attorney s and accountants knew, what they planned to do at trial, and how they planned to ach
the law and the rights of Shaw justified the trial court's awarding of punitive damages.
Parker v. Parker, 897 S.W.2d 918 (Tex. App. 1995), overruled on other grounds b
16, 1998).
This is especially true when the parties are no longer living together. 89
The congressional intent behind Title III was to allow states to provide more prote
protect the radio portion of a cordless-telephone communication, 91 state statutes ca
State statutes and court interpretations provide more protection in vari-
89 Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa. 1979); London v. London, 420 F. Supp. 944 (S.D
90 Todd R. Smy th, J.D., Annotation, Eavesdropping on Extension Telephone as Invasion of Pri
91 Laura W. Morgan, Interfamilial Wiretapping and Surveillance, 12 DIVORCE LITIG. 235 (
95
96
Page 37
ous other ways to communications than Title III. 92 A proficient lawyer must
couple federal law with state law to ''determine the types of activity which may
be criminal or actionable, the potential remedies, and the available defenses."93
For instance, state case law may recognize the doctrine of parental immunity, 94
whereas Title III, as interpreted in the circuit, may not. However, the majority
of the reported state case law on this issue has held that a parent cannot consent
for a child to have telephone conversations intercepted. 95 State law, which tends
to be more expansive, should generally be examined first. 96
Admissibility in Domestic Relations Proceedings
Section 2515 of Title III governs the receipt of a wire or oral communication's
contents into evidence. Simply put, if the disclosure of the information violates
Title III, Section 2515 prohibits its use as evidence in either federal or state
judicial, administrative, or legislative bodies. If the wire or oral communication
recording does not violate Title III, then it is admissible into evidence,
provided that a lawyer lays a proper foundation. 97 In Appendix F are the state
statutes that govern the receipt of wire communications in state proceedings.
Although there is generally no civil "fruit of the poisonous tree" doctrine, the
unauthorized use of such communications outside the courtroom may
nonetheless subject the offender to severe sanctions and liability.
Conclusion
It would be nave to understate the practical and potential effect of incriminating

recordings on domestic relations matters. They are often times the only hard,
credible evidence of spousal wrongdoing. Their well-planned use, particularly in
the context of settlement, may effectively vitiate the opponent's positions on the
core issues of the case, such as custody and finances.
97
92 Todd R. Smy th, J.D., Annotation, Eavesdropping on Extension Telephone as
Invasion of Privacy, 49 A.L.R.4th 430 (1986); United States v. Geller, 560 F. Supp.
1309, 1310 (E.D. Pa. 1983), aff'd, 745 F.2d 49 (3d Cir. 1984); Navarra v. Bache
Halsey Stuart Shields, Inc., 510 F. Supp. 831, 83335 (E.D. Mich. 1981).
Application in Matrimonial Cases, 12 J. AM. ACAD. MATRIM. LAW. 227, 247 (1994).
94 Silas v. Silas, 680 So. 2d 368 (Ala. Civ. App. 1996); Wright v. Stanley, 700 So. 2d 274
(Miss. 1997).
95 West Virginia Dep't of Health & Human Resources ex rel. Wright v. David L., 192 W.
Va. 663, 453 S.E.2d 646 (1994); People v. Dunham, 157 Misc. 2d 289, 596 N.Y.S.2d 289
(County Ct. 1993); State v. Shaw, 103 N.C. App. 268, 404 S.E.2d 887 (Ct. App. 1991).
96 See the chart in Appendix E.
97 State v. Ly nch, 279 N.C. 1, 181 S.E.2d 561 (1971).
98
Page 38
A lawyer's initial reaction to the existence of recordings should be strongly

tempered by a thorough understanding of applicable state and federal law, as well
as state bar disciplinary rules. In general, there are few situations that should
give a lawyer greater pause than the proffer of intercepted communications. Their
use and dissemination by all individuals in the domestic litigation
arenaincluding paralegals, staff, and guardians ad litemshould be generally
equated to the receipt of contraband, the possession and use of which subjects
the recipient and user to very serious potential liability.
99
Page 39
Chapter 4
Interspousal Torts
This chapter covers the assertion of domestic tort claims by divorced or

divorcing spouses, first by addressing the procedural issues that make initiating
domestic tort claims complex, then by outlining the types of interspousal tort
claims and third-party actions that have been successfully litigated in state court
systems.
Procedural Issues
A divorce practitioner must be aware of the procedural issues that arise when
initiating domestic tort litigation, which can potentially bar an otherwise valid
tort claim. This section documents the evolution of domestic torts and,
particularly, the erosion of interspousal immunity. It also covers the case law on
joinder requirements among the fifty states, as well as the effect of divorce
settlement agreements and the statute of limitations on domestic tort actions.
Interspousal Immunity
Interspousal immunity, which persisted even after social changes for women
began in the mid-nineteenth century, 1 embodied the societal and common-law
acceptance of domestic violence. 2 By the 1960s and 1970s, the women's
1 Barbara Glesner Fines, Joinder of Tort Claims in Divorce Actions, 12 J. AM.

ACAD. MATRIM. LAW. 285, 287 (Winter 1994); see also Boblitz v. Boblitz, 296
Md. 242, 462 A.2d 506 (1983); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951,
955 (1978).
100
2 Thompson v. Thompson, 218 U.S. 611 (1910); Ferguson v. Davis, 48 Del. 299, 102 A.2d
707 (1954); Sullivan v. Sessions, 80 So. 2d 706 (Fla. 1955); Wallach v. Wallach, 94 Ga.App.
576, 95 S.E.2d 750 (Ct. App. 1956); Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952);
Sackoff v. Sackoff, 131 Me. 280, 161 A. 669 (1932); Ensminger v. Ensminger, 222 Miss.
799, 77 So. 2d 308 (1955), partially overruled, 518 So. 2d 1205 (Miss. 1988); see also
LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE,
CONFLICT AND SEXUAL ABUSE 1.20 (1989 & Supp. 1996); Leonard Karp, Spousal
Infliction of Emotional Distress, 12 J. AM. ACAD. MATRIM. LAW. 309, 31112 (Winter
1994).
101
Page 40
movement raised society's consciousness concerning the issue of domestic

violence. 3
Although one state recognizes no right of action between spouses, 4 most

legislative and legal state branches have responded to these social changes by
abolishing interspousal immunity. 5 Some states, however, have only partially
abrogated the doctrine of interspousal immunity, choosing to withdraw the
doctrine's protection in certain circumstances, 6 or preserve the doctrine only for
negligent torts. 7
The availability of tort actions in the divorce context since the 1980s has led to
a rise in divorcing spouses' use of tort claims against each other. 8 A divorce
practitioner should first assess whether interspousal immunity, or a
3 Leonard Karp, Spousal Infliction of Emotional Distress, 12 J. AM. ACAD.

MATRIM. LAW. 309, 31112 (Winter 1994).
4 My hre v. Erler, 575 So. 2d 519 (La. Ct. App. 1991).
5 Penton v. Penton, 223 Ala. 282, 135 So. 481 (1931); Cramer v. Cramer, 379 P.2d 95
(Alaska 1963); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); Klein v. Klein, 58
Cal. 2d 692, 376 P.2d 70, 26 Cal. Rptr. 102 (1962); Rains v. Rains, 97 Colo. 19, 46 P.2d 740
(1935); Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432 (1925); Brown v. Brown, 88 Conn.
42, 89 A. 889 (1914); Beattie v. Beattie, 630 A.2d 1096 (Del. Super. Ct. 1993); Waite v.
Waite, 618 So. 2d 1360 (Fla. 1993); HAW. REV. STAT. 572-28 (1993); Neal v. Neal, 125
Idaho 617, 873 P.2d 871 (1994); Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972);
Shook v. Crabb, 281 N.W.2d 616 (Iowa 1979); Flagg v. Loy, 241 Kan. 216, 734 P.2d 1183
(1987); Brown v. Gosser, 262 S.W.2d 480 (Ky. 1953); MacDonald v. MacDonald, 412
A.2d 71 (Me. 1980); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983); Brown v.
Brown, 381 Mass. 231, 409 N.E.2d 717 (1980); Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d
236 (1971); Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969); Burns v. Burns,
518 So. 2d 1205 (Miss. 1988); S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986); Townsend v.
Townsend, 708 S.W.2d 646 (Mo. 1986); Miller v. Fallon County, 222 Mont. 214, 721 P.2d
342 (1986); Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979); Gilman v. Gilman, 78
N.H. 4, 95 A. 657 (1915); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978);
Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975); Hakkila v. Hakkila, 112 N.M. 172,
812 P.2d 1320 (Ct. App. 1991); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (Ct. App.
102
1973); State Farm Mut. Auto Ins. Co. v. Westlake, 35 N.Y.2d 587, 324 N.E.2d 137, 364
N.Y.S.2d 482 (1974); Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920); Fitzmaurice
v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Wisniewski v. Wisniewski, 20 Ohio St.
3d 20, 485 N.E.2d 248 (1985); Courtney v. Courtney, 184 Okla. 395, 87 P.2d 660 (1938);
Heino v. Harper, 306 Or. 347, 759 P.2d 253 (1988); Hack v. Hack, 495 Pa. 300, 433 A.2d
859 (1981); Pardue v. Pardue, 167 S.C. 129, 166 S.E. 101 (1932); Scotvold v. Scotvold, 68
S.D. 53, 298 N.W. 266 (1941); Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983); Price v.
Price, 732 S.W.2d 316 (Tex. 1987); Ulrich v. Ulrich, 652 S.W.2d 503 (Tex. App. 1983);
Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Plankel v. Plankel, 68 Wash. App. 89, 841 P.2d
1309 (Ct. App. 1992); Stephens v. Stephens, 85 Wash. 2d 290, 534 P.2d 571 (1975); Freehe
v. Freehe, 81 Wash. 2d 183, 500 P.2d 771 (1972); Coffindaffer v. Coffindaffer, 161 W. Va.
557, 244 S.E.2d 338 (1978); Zelinger v. State Sand & Gravel Co., 38 Wis. 2d 98, 156
N.W.2d 466 (1968); Wait v. Pierce, 191 Wis. 202, 209 N.W. 475 (1926); Tader v. Tader,
737 P.2d 1065 (Wy o. 1987); Turner v. Tay lor, 471 A.2d 1010 (D.C. 1984).
6 The most common circumstance involves automobile accidents. Fernandez v. Romo,
132 Ariz. 447, 646 P.2d 878 (1982), but see, e.g., Windauer v. O'Connor, 13 Ariz. App.
442, 477 P.2d 561 (Ct. App. 1970), vacated, 107 Ariz. 267, 485 P.2d 1157 (1971); Harris v.
Harris, 252 Ga. 387, 313 S.E.2d 88 (1984); Rogers v. Yellowstone Park, 97 Idaho 14, 539
P.2d 566 (1974), but see Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988),
overruled on other grounds, 122 Idaho 981, 842 P.2d 664 (1990); Boblitz v. Boblitz, 296
Md. 242, 462 A.2d 506 (1983); Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974);
Digby v. Digby, 120 R.I. 5, 388 A.2d 1 (1978); Asplin v. Amica Mut. Ins. Co., 121 R.I. 51,
394 A.2d 1353 (1978); Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973), but see
Slansky v. Slansky, 150 Vt. 438, 553 A.2d 152 (1988); Korman v. Carpenter, 216 Va. 86,
216 S.E.2d 195 (1975); Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), but see
Counts v. Counts, 221 Va. 151, 266 S.E.2d 895 (1980).
7 Raisen v. Raisen, 379 So. 2d 352 (Fla. 1979); Townsend v. Townsend, 708 S.W.2d 646
(Mo. 1986); see also 750 ILL. COMP. STAT. 65/3 (West 1997).
8 Robert G. Spector, Marital and Custodial Torts, in MARITAL & PARENTAL TORTS 1
(ABA Section of Family Law 1990).
103
Page 41
partial abrogation of interspousal immunity, might bar a tort action within a

particular jurisdiction. The next step is to determine when to advance the tort
claim procedurally. Although most jurisdictions permit an estranged spouse to
join a tort claim during a divorce proceeding, some jurisdictions do prohibit the
joining of tort claims in divorce proceedings.
Joinder of Tort Claims with Divorce Actions
There is case law allowing a subsequent tort suit, without mention of whether
an estranged spouse can join a tort claim with a divorce proceeding. 9 States that
have faced this issue squarely, however, have provided three different answers,
either encouraging, allowing, or prohibiting joinder of tort claims with divorce
actions.
Joinder Encouraged
104
One state theoretically requires joinder under a strict "entire controversy"
doctrine. 10 However, such a strict rule is only narrowly applied and is subject to
exceptions. 11 Seven other state courts encourage joinder or reservation of a tort
claim within a divorce action. 12 Failure to join tort claims in these jurisdictions
may result in the tort claims being barred on the grounds of res judi-
9 Whelan v. Whelan, 41 Conn. Supp. 519, 588 A.2d 251 (Super. Ct. 1991); McCoy
v. Cooke, 165 Mich. App. 662, 419 N.W.2d 44 (Ct. App. 1988); Courtney v.
Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991), rev'd, 190 W. Va. 126, 437
S.E.2d 436 (1993); Davis v. Bostick, 282 Or. 667, 580 P.2d 544 (1978).
10 Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979).
11 Tweedley v. Tweedley, 277 N.J. Super. 246, 649 A.2d 630 (Super. Ct. Ch. Div. 1994);
Lickfield v. Lickfield, 260 N.J. Super.21, 614 A.2d 1365 (Super. Ct. Ch. Div. 1992);
Ruprecht v. Ruprecht, 252 N.J. Super. 230, 599 A.2d 604 (Super. Ct. Ch. Div. 1991); J.Z.M.
v. S.M.M., 226 N.J. Super. 642, 545 A.2d 249 (Super. Ct. Law Div. 1988); Brown v. Brown,
208 N.J. Super. 372, 506 A.2d 29 (Super. Ct. App. Div. 1986); Davis v. Davis, 182 N.J.
Super. 397, 442 A.2d 208 (Super. Ct. Ch. Div. 1981).
12 Smith v. Smith, 14 Fam. L. Rep. (BNA) 1609 (Ala. Sup. Ct. Aug. 26, 1988), see also
Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986); Mize v. Mize, 80 Ga. App. 441, 56
S.E.2d 121 (Ct. App. 1949); Whittington v. Whittington, 766 S.W.2d 73 (Ky. Ct. App. 1989);
Pelletier v. Pelletier, 103 Nev. 408, 742 P.2d 1027 (1987); Maharam v. Maharam, 177
A.D.2d 262, 575 N.Y.S.2d 846 (App. Div. 1991); Stafford v. Stafford, 726 S.W.2d 14 (Tex.
1987); Kemp v. Kemp, 723 S.W.2d 138 (Tenn. 1987); Mogford v. Mogford, 616 S.W.2d
936 (Tex. App. 1981).
105
Page 42
cata. 13 Some courts preclude only those issues that were litigated and decided in
the divorce action. 14
It is generally in the court's discretion whether to try or reserve the tort claim. 15
If the court decides to try the tort claim, the issue then is which case should be
tried first. In states that follow the rule in Beacon Theatres, Inc. v. Westover, 16
the legal issues must precede judicial determination of equitable claims. 17 This
may lead to some discomfort for an estranged spouse who wants a divorce but
must wait for the outcome of a tort case. Two jurisdictions have held that
separate concurrent actions could be maintained, but were silent regarding which
suit should be decided first. 18
Most states, however, are hesitant to encourage joinder of tort claims in divorce
actions because of the conflicting interests of a tort defendant's right to jury trial
and the equitable nature of a divorce proceeding. 19 The disparity between fault-
based tort claims and divorce actions is especially exacerbated in jurisdictions
with no-fault divorce systems. 20 Hence, most states either permit or prohibit
joinder.
Permissive Joinder
Some state courts do permit, but do not require, the joining of tort claims with
divorce actions. 21 Defendants may move to sever the cases on the
13 Overberg v. Lusby, 727 F. Supp. 1091 (E.D. Ky. 1990), aff'd, 921 F.2d 90 (6th Cir.
1990); Partlow v. Kolupa, 122 A.D.2d 509, 504 N.Y.S.2d 870 (App. Div. 1986);
Kemp v. Kemp, 723 S.W.2d 138 (Tenn. 1987); Twy man v. Twy man, 855 S.W.2d
619 (Tex. 1993).
14 Lickfield v. Lickfield, 260 N.J. Super. 21, 614 A.2d 1365 (Super. Ct. Ch. Div. 1992);
Pirodsky v. Pirodsky, 179 A.D.2d 1066, 579 N.Y.S.2d 524 (App. Div. 1992); Kemp v.
Kemp, 723 S.W.2d 138 (Tenn. 1987).
15 Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320 (Ct. App. 1991) (Donnelly, J.,
106
concurring); Pirodsky v. Pirodsky, 179 A.D.2d 1066, 579 N.Y.S.2d 524 (App. Div. 1992).
16 Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959).
17 Noble v. Noble, 761 P.2d 1369 (Utah 1988); Maharam v. Maharam, 177 A.D.2d 262,
575 N.Y.S.2d 846 (App. Div. 1991).
18Ex parte Harrington, 450 So. 2d 99 (Ala. 1984); Koepke v. Koepke, 52 Ohio App. 3d 47,
556 N.E.2d 1198 (Ct. App. 1989), appeal denied, 49 Ohio St. 3d 708, 551 N.E.2d 1304
(1990).
19See notes 2027, infra. An ethical sidenote: lawy ers must enter two separate fee
arrangements when representing a divorce client in both a divorce and tort action. Even
though a lawy er may enter a contingent-fee arrangement for a tort action, joinder of the
claims does not authorize a lawy er to enter a contingent-fee arrangement for a domestic
relations matter. Twy man v. Twy man, 855 S.W.2d 625 n.18 (Tex. 1993); see also MODEL
RULES OF PROFESSIONAL CONDUCT Rule 1.5 (1993).
20See, e.g., Chiles v. Chiles, 779 S.W.2d 127 (Tex. 1989), overruled by Twy man v.
Twy man, 855 S.W.2d 625 (Tex. 1993).
21Ex parte Harrington, 450 So. 2d 99 (Ala. 1984); Lowdermilk v. Lowdermilk, 825 P.2d
874 (Alaska 1992); Nelson v. Jones, 787 P.2d 1031 (Alaska 1990); Cater v. Cater, 311 Ark.
627, 846 S.W.2d 173 (1993); Snedaker v. Snedaker, 660 So. 2d 1070 (Fla. Dist. Ct. App.
1995); Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988), overruled on other
grounds, 122 Idaho 981, 842 P.2d 664 (1990); McNevin v. McNevin, 447 N.E.2d 611 (Ind.
Ct. App. 1983); Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993); McCoy v. Cooke, 165
Mich. App. 662, 419 N.W.2d 44 (Ct. App. 1988), but see Gubin v. Lodisev, 197 Mich. App.
84, 494 N.W.2d 782 (Ct. App. 1992); Goldman v. Wexler, 122 Mich. App. 744, 333
N.W.2d 121 (Ct. App. 1983); R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. Ct. App. 1988);
S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986); Roesler v. Roesler, 641 P.2d 550 (Okla,
1982); Stuart v. Stuart, 140 Wis. 2d 455,
(Continued on next page)
107
Page 43
grounds that trying a tort and divorce action together would be too complex or
lead to delay. 22 These states may bar the relitigation of issues under collateral
estoppel. 23
Joinder Prohibited
Most states that preclude joinder do so on policy grounds, 24 on a lack of

statutory jurisdiction, 25 or upon a finding that tort and divorce actions are
distinctly different. 26 One state does not permit joinder because its highest court
has inferred this outcome from its rules of procedure. 27 In these jurisdictions, res
judicata should not bar the tort claim, but courts may bar issues from being
relitigated under the doctrine of collateral estoppel. 28
Other Potential Bars to Asserting a Tort Claim
The running of the applicable statute of limitations or the signing of a divorce

settlement agreement with a general release clause usually renders a tort claim
inactionable.
Statute of Limitations
Before the elimination of interspousal immunity, the statute of limitations did

toll during marriage. 29 However, state courts now consistently hold that the
statute of limitations does not toll during marriage, 30 nor during an unmarried
couple's cohabitation. 31 There has been little judicial relief for spouses who
pursued tort claims when interspousal immunity was abrogated during the
marriage, 32 but no judicial sympathy for spouses whose tort claims were
(Continued from page 42)
410 N.W.2d 632 (Ct. App. 1987), vacated in part, 143 Wis. 2d 347, 421 N.W.2d 505
108
(1988); de la Croix de Lafay ette v. de la Croix de Lafay ette, 15 Fam. L. Rep.
(BNA) 1501 (D.C. Super. Ct. Aug. 14, 1989); Carmichael v. Carmichael, 597 A.2d
1326 (D.C. App. 1991).
22 Mogford v. Mogford, 616 S.W.2d 936 (Tex. App. 1981).
23 Coleman v. Coleman, 566 So. 2d 482 (Ala. 1990); Weil v. Lammon, 503 So. 2d 830
(Ala. 1987); Nelson v. Jones, 787 P.2d 1031 (Alaska 1990); McCoy v. Cooke, 165 Mich.
App. 662, 419 N.W.2d 44 (Ct. App. 1988).
24 Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1989); Noble v. Noble, 761 P.2d
1369 (Utah 1988); Walther v. Walther, 709 P.2d 387 (Utah 1985); Lord v. Shaw, 665 P.2d
1288 (Utah 1983) (dictum). See also IOWA CODE 598.3 (1996).
25 Vance v. Chandler, 231 Ill. App. 3d 747, 597 N.E.2d 233 (App. Ct. 1992); In re
Marriage of Foran, 225 Ill. App. 3d 756, 587 N.E.2d 570 (App. Ct. 1992). See also
Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971).
26 Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151 (1988); Aubert v. Aubert, 129 N.H.
422, 529 A.2d 909 (1987).
27 Ward v. Ward, 155 Vt. 242, 583 A.2d 577 (1990).
28 Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987); Noble v. Noble, 761 P.2d 1369
(Utah 1988).
29 Griesmer v. Griesmer, 116 Ariz. 512, 570 P.2d 199 (Ct. App. 1977); Cary v. Cary, 159
Or. 578, 80 P.2d 886 (1938).
30 Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988), overruled on other grounds,
122 Idaho 981, 842 P.2d 664 (1990); Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993);
R.A.P.v.B.J.P., 428 N.W.2d 103 (Minn. Ct. App. 1988); Stephens v. Stephens, 85 Wash. 2d
290, 534 P.2d 571 (1975).
31 Baron v. Jeffer, 98 A.D.2d 810, 469 N.Y.S.2d 815 (App. Div. 1983).
32 Antonacci v. Davis, 108 Or. App. 693, 816 P.2d 1202 (Ct. App. 1991).
109
Verbal Abuse Coupled with Physical Violence
Man and Woman met in England and married after four months. They operated Wo
divorce on the ground of cruel and abusive treatment. After settlement negotiations
Approximately one and a half years after the separation, the court granted the partie
One year later, Woman sued Man for intentional infliction of emotional distress res
assault, the trial court allowed evidence of physical abuse regarding one rape and o
$115,000. Man appealed on the ground that the action was barred after the divorce
The state supreme court affirmed the lower court, holding that there is no mutual c
abuse as not tortious and privileged. The court further held that res judicata was no
Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993).
barred because of interspousal immunity, then barred after abrogation of interspousa
Plaintiffs have unsuccessfully tried to avoid the statute of limitations by trying to l

continuing tort. 34 However, state courts have been willing to recognize that psycho
Divorce Settlement Agreements
Even in states where an estranged spouse can file a tort claim separately from a div
33 Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979); Lord v. Shaw, 665 P.2d 1288 (Utah
34 Laughlin v. Breaux, 515 So. 2d 480 (La. Ct. App. 1987); Davis v. Bostick, 282 Or. 667, 580 P
Lafay ette, 15 Fam. L. Rep. (BNA) 1501 (D.C. Super. Ct. Aug. 14, 1989).
35 Curtis v. Firth, 123 Idaho 598, 850 P.2d 749 (1993); Henriksen v. Cameron, 622 A.2d 1135 (
335, 652 A.2d 789 (Super. Ct. Law Div. 1995) (recognition of continuous tort called "battered-
1995); Twy man v. Twy man, 790 S.W.2d 819 (Tex. App. 1990), rev'd, 855 S.W.2d 619 (Tex. 1
110
111
Page 45
rated agreement usually bars a subsequent tort claim. 36 However, disclosure

clauses have not barred unliquidated tort claims, even when the ex-spouse
knows of the claim when signing the divorce settlement agreement. 37
Conclusion
The abrogation of interspousal immunity since the 1970s has led to a rise in the
assertion of tort claims between estranged spouses. However, interspousal
immunity can nonetheless bar a tort claim in those jurisdictions that still
recognize or have only partially abrogated the doctrine.
Eight jurisdictions promote joinder of tort claims with divorce actions to

economize judicial resources. If a spouse fails to join his or her tort claim with
the divorce proceeding in these jurisdictions, then the claim is barred under the
doctrine of res judicata. Most states, however, are disinclined to encourage
joinder of tort claims in divorce proceedings because of the mismatch of a legal
tort claim with an equitable divorce action, as well as the possible mismatch of
a fault-based tort claim in a no-fault divorce system.
Even though courts have been receptive to emotional-abuse claims as being a

continuous tort, the running of the applicable statute of limitations has been a
common bar to valid claims of physical abuse. The signing of a divorce
settlement agreement with a release clause can also bar a tort claim.
Specific Interspousal Torts
There is a range of activity arising in the course of a marriage relationship bey ond
the reach of the law of torts. Special matters of privacy and familiarity may be
encompassed by a marital or nuptial privilege and fall outside the bounds of a
definable and enforceable duty of care. Certain conduct may also be regarded as
"consensual," involving the "give-and-take" and subtle ebb and flow of married
life. . . .38
112
As in all contexts, insignificant claims for personal injuries between spouses
will not be entertained by courts nor compensated for by juries. 39 Given the
consistently close proximity of spouses, some jurisdictions even expect some
36 Coleman v. Coleman, 566 So. 2d 482 (Ala. 1990); Smith v. Smith, 530 So. 2d
1389 (Ala. 1989); Jackson v. Hall, 460 So. 2d 1290 (Ala. 1984); Overberg v. Lusby,
16 Fam. L. Rep. (BNA) 1135 (E.D. Ky. Jan. 4, 1990); Gramer v. Gramer, 207
Mich. App. 123, 523 N.W.2d 861 (Ct. App. 1994); Henry v. Henry, 534 N.W.2d 844
(S.D. 1995); see also Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993).
37 McNevin v. McNevin, 447 N.E.2d 611 (Ind. Ct. App. 1983); Stuart v. Stuart, 143 Wis.
2d 347, 421 N.W.2d 505 (1988).
38 Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951, 961 (1978).
39 Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976); Merenoff v. Merenoff, 76 N.J.
535, 388 A.2d 951 (1978).
113
To prove intentional infliction of emotional distress, a plantiff must show that the
1. intentionally or recklessly
2. performed extreme and outrageous conduct
3. which caused
4. severe emotional distress to plaintiff.
See Restatement (second) of Torts 46 (1965).
negligent conduct between married individuals. 40 However, there are types of misc
and juries will sanction.
This section covers the types of cases most prevalent in the divorce context, the st
and intentional infliction of emotional distress. Torts that are more specific to the d
battery and transmission of sexually transmitted diseases.
Tortious Infliction of Emotional Distress
There are two types of infliction of emotional distress: negligent and intentional. N
distress, however, is not a common claim between spouses. 41
Intentional infliction of emotional distress claims are frequently asserted between sp

hesitant to award relief for conduct in the course of heated divorce proceedings such
conduct, 43 abusive conduct, 44 swindling, 45 domestic frauds, 46 adultery, 47 misrepre
abortion, 49 illegal divorce and remarriage, 50 or
114
40 Raisen v. Raisen, 379 So. 2d 352 (Fla. 1979); Townsend v. Townsend, 708 S.W.2d 646 (M
41See Chiles v. Chiles, 779 S.W.2d 127 (Tex. App. 1989), overruled by Twy man v. Twy man, 8
LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE, CON
& Supp. 1996).
42See Stuart v. Stuart, 140 Wis. 2d 455, 410 N.W.2d 632 (1987).
43 Hassing v. Wortman, 214 Neb. 154, 333 N.W.2d 765 (1983); Py le v. Py le, 11 Ohio App. 3d
44 Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320 (Ct. App. 1991); Weiner v. Weiner, 84 A.D
see, e.g., Chiles v. Chiles, 779 S.W.2d 127 (Tex. App. 1989); but see also Massey v. Massey, 80
867 S.W.2d 766 (Tex. 1993).
45 Whittington v. Whittington, 766 S.W.2d 73 (Ky. Ct. App. 1989).
46 Nagy v. Nagy, 210 Cal. App. 3d 1254, 258 Cal. Rptr. 787 (Ct. App. 1989).
47 Whittington v. Whittington, 766 S.W.2d 73 (Ky. Ct. App. 1989); Browning v. Browning, 584
Smith, 113 N.C. App. 410, 438 S.E.2d 457 (Ct. App. 1994); Poston v. Poston, 112 N.C. App. 84
v. Ruprecht, 252 N.J. Super. 230, 599 A.2d 604 (Super. Ct. Ch. Div. 1991); Pickering v. Pickerin
v. Inman, 825 S.W.2d 102 (Tenn. Ct. App. 1991).
48 Jose E. v. Pat M., 154 Misc. 2d 883, 586 N.Y.S.2d 734 (Sup. Ct. 1992).
49 Przy bla v. Przy bla, 87 Wis. 2d 441, 275 N.W.2d 112 (1978).
50 Weicker v. Weicker, 22 N.Y.2d 11, 237 N.E.2d 876, 290 N.Y.S.2d 732 (1968).
115
Intentional Infliction of Emotional
Many cases fail in the divorce law context because courts set the standard of outrag
following cases failed due to lack of documentation or evidence of severe mental di
In Pyle v. Pyle, Plaintiff, who had severe reactions to certain foods such as peanuts,
youngest boy brought a present for his father and asked his father if he liked peanut
hysterically. When Plaintiff sought to comfort the child, he discovered his son had
not eat any peanuts, but testified he was so upset by his son's reaction he suffered h
prove intent, outrageous behavior, and serious emotional distress.
The court further stated, ''The law cannot protect against or provide damages for al
post-decree interactions between divorced parents. The parties are required by the v
discomfort. . . . "
In Hassing v. Wortman, an ex-spouse began to harrass his ex- wife, to whom he w

restating the known fact that Plaintiff was pregnant when they got married, drove b
current fianc, published what he found out. The only damage Plaintiff asserted wa
showing of extreme emotional distress: there was no medical testimony, and no ev
Pyle v. Pyle, 11 Ohio App. 3d 31, 463 N.E.2d 98 (Ct. App. 1983); Hassing v. Wo
an unsubstantiated fear of human immunodeficiency virus (HIV) as a result of an ex

alternative relief available, 52 or the plaintiff failed to prove an essential element.
Courts have awarded damages when the defendant's conduct was especially vindict
51 Doe v. Doe, 136 Misc. 2d 1015, 519 N.Y.S.2d 595 (Sup. Ct. 1987).
52See Whittington v. Whittington, 766 S.W.2d 73 (Ky. Ct. App. 1989).
53 Weisman v. Weisman, 108 A.D.2d 852, 485 N.Y.S.2d 568 (App. Div. 1985).
116
117
Battered-Par
Man and Woman lived together. The relationship began as a loving one, but the h
violence. The relationship was marked by cycles of violence where the batteror bec
batteror becoming loving again. Although Man and Woman participated in counse
Woman sought damages for battery and intentional infliction of emotional distress
wife syndrome and post-traumatic stress disorder. The jury awarded Woman $50,0
appealed.
The state supreme court affirmed, but remanded the case regarding the excessivenes
to establish IIED. Further, the court applied the theory of a continuing tort to this
detailed the type of abuse that occurred during the ten-year relationship as follows.
"At the risk of subjecting the parties to additional public scrutiny of their private li
Several witnesses attested to Firth's conservative attitudes regarding sex and substa
good-hearted, hard-working woman who would do anything for family or friends. A
efforts to try and please him. . . .
"Despite these efforts, Curtis was an almost constant source of criticism. He compl
bathroom sink was not cleaned, the tags were not clipped off his shirts, his food w
might pass as the trials of everyday life between two cohabiting people. . . .
"The testimony . . . reflected a relationship between the parties which became prog
the beginning of their relationship, the type of sexual practices in which he chose t
activities, Firth chose to drug herself and participate in an effort to please and get a
forced to engage in sexual acts which she found repugnant and to being sexually as
Curtis v. Firth, 123 Idaho 598, 850 P.2d 749 (1993).
118
119
Page 49
chological abuse. 54 Three particular cases involve fear of imminent death, 55

sadomasochistic sexual acts, 56 misrepresenting one's marital status, 57 or using
contraction of acquired immunodeficiency syndrome (AIDS) as an excuse to
avoid one's marriage obligations. 58 Damage awards for this tort have been
affirmed on appeal. 59 Claims between common-law spouses60 and cohabiting
couples61 are no different in substance.
A minor child may be able to recover for the abusive conduct of his mother's
former husband in his presence if there is evidence of injury. 62 A plaintiff may
recover for abusive conduct toward plaintiff's children from another marriage. 63
Assault and Battery (Including Sexual Battery)
In 1990, over three-quarters of all interspousal tort suits were for assault and
battery, and were usually brought by a battered spouse. 64 Even though the torts
of assault and battery are often asserted in tandem, they do have different
elements. 65 Plaintiffs nationwide have successfully stated causes of action for
assault and battery resulting from the marriage relationship. 66 Some bat-
54 Gladish v. Simmons, 11 Fam. L. Rep. (BNA) 1323 (Colo. Dist. Ct. Mar. 21,
1985); Landis v. Landis, 664 N.E.2d 754 (Ind. Ct. App. 1996); McCoy v. Cooke, 165
Mich. App. 662, 419 N.W.2d 44 (Ct. App. 1988); Davis v. Bostick, 282 Or. 667, 580
P.2d 544 (1978).
55 Vance v. Chandler, 231 Ill. App. 3d 747, 597 N.E.2d 233 (App. Ct. 1992); Behringer v.
Behringer, 884 S.W.2d 839 (Tex. App. 1994).
56 Curtis v. Firth, 123 Idaho 598, 850 P.2d 749 (1993); Twy man v. Twy man, 855 S.W.2d
619 (Tex. 1993).
57 Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979).
58 Whelan v. Whelan, 41 Conn. Supp. 519, 588 A.2d 251 (Super. Ct. 1991).
59 Henriksen v. Camerson, 622 A.2d 1135 (Me. 1993); Boettcher v. Boettcher, 870 S.W.2d
876 (Mo. Ct. App. 1993); Massey v. Massey, 807 S.W.2d 391 (Tex. App. 1991), writ
120
denied, 867 S.W.2d 766 (Tex. 1993).
60 Murphy v. Murphy, 109 A.D.2d 965, 486 N.Y.S.2d 457 (App. Div. 1985).
61 Curtis v. Firth, 123 Idaho 598, 850 P.2d 749 (1993).
62 Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991), rev'd on other grounds,
186 W. Va. 597, 413 S.E.2d 418 (1991).
63 Boettcher v. Boettcher, 870 S.W.2d 876 (Mo. Ct. App. 1993).
64 Robert G. Spector, Marital and Custodial Torts, in MARITAL & PARENTAL TORTS 1,
34 (ABA Section of Family Law 1990).
65 To prove assault, a plaintiff must show (1) an intentional (2) overt act (3) which causes
actual apprehension of imminent harmful contact. See RESTATEMENT (SECOND) OF
TORTS 2134 (1965). To prove battery, a plaintiff must show (1) an intentional (2) overt
act (3) causing harmful or offensive contact (4) or an imminent apprehension of such
contact (5) with the person of the other or a third person. See RESTATEMENT
(SECOND) OF TORTS 1320 (1965).
66 Murray v. Murray, 598 So. 2d 921 (Ala. Civ. App. 1992); Smith v. Smith, 530 So. 2d
1389 (Ala. 1988); Ex parte Harrington, 450 So. 2d 99 (Ala. 1984); Griesmer v. Griesmer,
116 Ariz. 512, 570 P.2d 199 (Ct. App. 1977); Windauer v. O'Connor, 13 Ariz. App. 442,
477 P.2d 561 (Ct. App. 1971); Self v. Self, 58 Cal. 2d 683, 376 P.2d 65, 26 Cal. Rptr. 97
(1962); Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1988); Waite v. Waite, 618 So.
2d 1360 (Fla. 1993); Catlett v. Catlett, 193 Ga. App. 399, 388 S.E.2d 14 (Ct. App. 1989);
Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988); Palmer v. Palmer, 169 Ill. App.
3d 828, 523 N.E.2d 1316 (App. Ct. 1988); Landis v. Landis, 664 N.E.2d 754 (Ind. Ct. App.
1996); Ebert v. Ebert, 232 Kan. 502, 656 P.2d 766 (1983); Duplechin v. Toce, 497 So. 2d
763 (La. Ct. App. 1987); Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151 (1988);
McCoy v. Cooke, 165 Mich. App. 662, 419 N.W.2d 44 (Ct. App. 1988); Cain v. McKinnon,
552 So. 2d 91 (Miss. 1989); Burns v. Burns, 518 So. 2d
121
A Cauti
Decedent was diagnosed as having AIDS the day before he died. At that time, he t
wife, tested HIV-positive three days after Decedent died of an AIDS-related illness.
Woman sued Decedent's estate, seeking $610,000 in general damages for medical e
bisexual when they divorced, at which time she had entered a property settlement g
$2.19 million.
Silva v. Silva Estate, 15 Fam. L. Rep. (BNA) 1181 (Nev. 2d Jud. Dist. Ct., Wash
teries occur during the pendency of divorce proceedings. 67 Damage awards in sever
One particular type of assault and battery case is the civil sexual battery cause of ac
available. 70
Tortious Infliction of Sexually Transmitted Diseases
There is case law dealing with several types of sexually transmitted diseases;71 eve
if left untreated. 72 Although a spouse or a partner may be able to press criminal cha
section covers only the current civil case law dealing with perhaps the two most se
1205 (Miss. 1988); Townsend v. Townsend, 708 S.W.2d 646 (Mo. 1986); Aubert v. Aubert, 129
App. Div. 1986); Flores v. Flores, 84 N.M. 601, 506 P.2d 345 (1973); Noble v. Noble, 761 P.2d
Wis. 2d 377, 421 N.W.2d 505 (1988).
67 Tay lor v. Tay lor, 560 So. 2d 768 (Ala. Civ. App. 1990); Cater v. Cater, 311 Ark. 627, 846 S.
68 Catlett v. Catlett, 193 Ga. App. 399, 388 S.E.2d 14 (Ct. App. 1989); Palmer v. Palmer, 169
1993); Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987); Mogford v. Mogford, 616 S.W.2
supra note 66.
122
69 Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994); Lusby v. Lusby, 283 Md. 334, 390 A.2d
70 LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE, C
71 Hogan v. Tavzel, 660 So. 2d 350 (Fla. Dist. Ct. App. 1996) (genital warts); Crowell v. Crowe
96 S.W.2d 245 (Tex. App. 1936); Duke v. Housen, 589 P.2d 334 (Wy o. 1979).
404 (Fla. Dist. Ct. App. 1991).
123
Page 51
Human Immunodeficiency Virus (HIV)
Cases involving HIV infection are prevalent, but present problems of causation
and proof;74 for a spouse or partner to be held liable, there must be actual
exposure to bodily fluids, 75 and the spouse or partner must knowingly fail to
disclose that he or she may have HIV. 76 A child may not be able to recover
when a defendant inflicts her parent with HIV, 77 but a child conceived during the
wrongful transmission of HIV to the mother may78 or may not79 have a claim
against the father.
Herpes Simplex Viruses
The most common venereal-disease cases involve herpes. 80 One court has held
that the venereal disease must have occurred during the marriage to be
actionable. 81 Plaintiffs have used several theories to receive damages for tortious
infliction of sexually transmitted diseases, 82 such as battery (when the consent
was uninformed and therefore invalid), 83 negligence, 84 and tortious fraud, 85
coupled with claims asserting intentional infliction of emotional dis-
74See Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994).
75 K.A.C., T.M.W. & R.E.S. v. Benson, 527 N.W.2d 553 (Minn. 1995); Mason v. Calhoun,
20 Fam. L. Rep. (BNA) 1356 (N.Y. Sup. Ct. June 7, 1994); see also Lubowitz v. Albert
Einstein Med. Ctr., 424 Pa. Super. 468, 623 A.2d 3 (Super. Ct. 1993).
76 Doe v. Johnson, 817 F. Supp. 1382 (W.D. Mich. 1993); C.A.U. v. R.L., 438 N.W.2d 441
(Minn. Ct. App. 1989); Silva v. Silva Estate, 15 Fam. L. Rep. (BNA) 1181 (Nev. 2d Jud.
Dist. Ct. Jan. 11, 1989); Tischler v. Dimenna, 160 Misc. 2d 525, 609 N.Y.S.2d 1002 (Sup.
Ct. 1994); Blanco v. Sullivan, 19 Fam. L. Rep. (BNA) 1083 (N.Y. Sup. Ct. Nov. 16, 1992);
Kozup v. Georgetown Univ., 663 F. Supp. 1048 (D.D.C. 1987).
77 Moore v. Johnson, 826 F. Supp. 1106 (W.D. Mich. 1993).
78 Williams v. Hook, 804 P.2d 1131 (Okla. 1990).
79 Moore v. Johnson, 826 F. Supp. 1106 (W.D. Mich. 1993).
124
80 Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989); Kathleen K. v. Robert B., 150 Cal. App.
3d 992, 198 Cal. Rptr. 273 (Ct. App. 1984); Long v. Adams, 175 Ga. App. 538, 333 S.E.2d
852 (Ct. App. 1985); Meany v. Meany, 639 So. 2d 229 (La. 1994); R.A.P. v. B.J.P., 428
N.W.2d 103 (Minn. Ct. App. 1988); S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986); G.L. v.
M.L., 228 N.J. Super. 566, 550 A.2d 525 (Super. Ct. Ch. Div. 1988); J.Z.M. v. S.M.M., 226
N.J. Super. 642, 545 A.2d 249 (Super. Ct. Law Div. 1988); B.N. v. K.K., 312 Md. 135, 538
A.2d 1175 (1988); Maraham v. Maraham, 123 A.D. 165, 510 N.Y.S.2d 104 (App. Div.
1986); see also Gregory G. Sarno, J.D., Annotation, Tortious Transmission of Venereal
Disease, 40 A.L.R.4th 1089 (1985 & Supp. 1996).
81 Zy sk v. Zy sk, 239 Va. 32, 404 S.E.2d 721 (1990).
82See Coleman v. Coleman, 566 So. 2d 482 (Ala. 1990).

83 Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (Ct. App. 1984);
S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986).
84 Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989); Doe v. Roe, 218 Cal. App. 3d 1538, 267
Cal. Rptr. 564 (Ct. App. 1990); Gabriel v. Tripp, 576 So. 2d 404 (Fla. Dist. Ct. App. 1991);
Schiffhauer v. Schiffhauer, 485 So. 2d 838 (Fla. Dist. Ct. App. 1986); Long v. Adams, 175
Ga. App. 538, 333 S.E.2d 852 (Ct. App. 1985); Meany v. Meany, 639 So. 2d 229 (La.
1994); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988); M.M.D. v. B.L.G., 467 N.W.2d
645 (Minn. Ct. App. 1991); R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. Ct. App. 1988); G.L. v.
M.L., 228 N.J. Super. 566, 550 A.2d 525 (Super. Ct. Ch. Div. 1988); Maraham v. Maraham,
123 A.D. 165, 510 N.Y.S.2d 104 (App. Div. 1986); but see J.T. v. M.J., 77 Wash. App. 361,
891 P.2d 729 (Ct. App. 1995).
85 Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (Ct. App. 1984);
R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. Ct. App. 1988); Maraham v. Maraham, 123 A.D.
165, 510 N.Y.S.2d 104 (App. Div. 1986).
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tress. 86 Further, a faithful spouse may have a negligence claim against a spouse's
paramour. 87
Sundry Other Interspousal Tort Actions
Following are less common interspousal tort actions. Although the case law is
sparse, these areas may just present hybrid areas of tort law. State courts have
allowed interspousal recovery for slip-and-fall cases, 88 as well as the negligent
use of potentially harmful products. 89 Other recorded torts resulting from the
marriage relationship include breach of fiduciary duty, 90 professional
malpractice, 91 conversion, 92 and defamation93 causes of action.
State courts may refuse to allow recovery for misrepresentations involving the
use of birth control when the outcome results in the birth of a healthy baby. 94
There is also an old line of false-imprisonment case law, in which one spouse
commits another spouse to an insane asylum. 95 However, if an estranged spouse
is held against his or her will in any context, he or she should be able to plead
false imprisonment. 96
Conclusion
There are noticeable trends in the types of tort actions successfully asserted
between spouses. Plaintiffs have had consistent success recovering damages
under theories of intentional infliction of emotional distress, and assault and/or
battery. Two specific types of battery cases involve transmission of venereal
disease and lack of consent to sexual intercourse. Along with battery, there are at
least three other ways a spouse can recover for the tortious infliction of a
sexually transmitted disease.
Although assault and battery cases are prevalent, intentional infliction of
126
emotional distress cases are perhaps more successful. The reason for this is
86 Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 198 Cal. Rptr. 273 (Ct. App.
1984); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988); M.M.D. v. B.L.G., 467
N.W.2d 645 (Minn. 1991).
87 Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989); Lockhart v. Loosen,
1997 Okla. 103, 943 P.2d 1074 (1997).
88 Klein v. Klein, 58 Cal. 2d 692, 376 P.2d 70, 26 Cal. Rptr. 102 (1962); Brown v. Brown,
381 Mass. 231, 409 N.E.2d 717 (1980).
89 Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978).
90 Garrity v. Garrity, 399 Mass. 367, 504 N.E.2d 617 (1987).

91 Carmichael v. Carmichael, 597 A.2d 1326 (D.C. App. 1991).
92 Slansky v. Slansky, 150 Vt. 438, 553 A.2d 152 (1988).

93 Roe v. Superior Court, 229 Cal. App. 3d 832, 280 Cal. Rptr. 380 (Ct. App. 1991);
Nogueira v. Nogueira, 388 Mass. 79, 444 N.E.2d 940 (1983); Johnson v. Johnson, 654 A.2d
1212 (R.I. 1995); but see Papy v. Frischkorn, 234 So. 2d 718 (Fla. Dist. Ct. App. 1970).
94 C.A.M. v. R.A.W., 237 N.J. Super. 532, 568 A.2d 556 (Super. Ct. App. Div. 1990); Jose F.
v. Pat M., 154 Misc. 2d 883, 586 N.Y.S.2d 734 (Sup. Ct. 1992).
95 Lorang v. Hay s, 69 Idaho 440, 209 P.2d 733 (1949); but see Brown v. Brown, 88 Conn.
42, 89 A. 889 (1915); Lunt v. Lunt, 121 S.W.2d 445 (Tex. 1938).
96 Catlett v. Catlett, 193 Ga. App. 399, 388 S.E.2d 14 (Ct. App. 1989).
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that the statute of limitations may bar older assaults and/or batteries. However,
if an estranged spouse can couple psychological abuse with assaults and
batteries, he or she may be able to maintain an action for intentional infliction of
emotional distress.
As a matter of course, negligence claims are not actionable between spouses.

However, courts may sanction a spouse who breaches a duty to use reasonable
care to prevent the communication of a sexually transmitted disease to the other
spouse. Further, a spouse may be liable for spousal breaches of duty that do not
involve marital consent or acceptance of jointly shared risks.
Conclusion
With the abrogation of interspousal immunity, spouses now have a tort

alternative available to recover damages for an antagonistic spouse's intentional
conduct. However, a spouse may not be able to assert his or her claim if there
are procedural bars such as a joinder requirement, the statute of limitations, or a
release clause within a divorce settlement agreement.
Courts have had to strike a balance between conduct that society has come to
expect between spouses, and conduct that is wholly unacceptable in marital
disputes resulting in divorce actions. Courts have established a spectrum of
actionable conduct for spouses in the areas of intentional infliction of emotional
distress, assault and battery, and tortious infliction of sexually transmitted
diseases.
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WHEN DIVORCING COUPLES INVOLVE THIRD PARTIES
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Chapter 5
Use of Employed Experts
This chapter covers two broad areas of professionals: private investigators and
valuation experts. Each section presents specific instances when it would be
most advantageous for a divorce lawyer to employ such professionals. The
chapter also discusses safeguards for selecting and working with experts to
preserve the integrity of a case, as well as the more prevalent ethical issues that
arise when associating with outside professionals. Further, the chapter considers
potential personal liability and professional discipline issues for a hiring lawyer
as the result of the conduct of third-party professionals.
Private Investigators
A lawyer looking to hire a private investigator (PI) should be aware of when to

use, how to select, and how to work with a PI. The hiring lawyer must also be
aware that the improper conduct of a private detective can be imputed to the
lawyer.
When to Use a Private Investigator
The following suggestions profile the most common roles for a private
investigator. The suggestions below are far from exhaustive, however; the only
boundaries on what a PI can accomplish are legal, ethical, and financial.
Phase One
130
A private investigator can assist a lawyer in deciding whether to take a case.
Unlike commercial litigation, individuals seeking divorces are dealing with
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interests and assets that are highly personal. 1 The facts and issues, as presented
to a potential lawyer by an estranged spouse, are usually skewed by strong
emotions such as remorse, revenge, or anxiety. An impartial person, such as a
PI, can provide information that may corroborate or disprove the facts as stated
by a prospective client. Omitted or misrepresented facts, which could
significantly affect the outcome of a divorce, may play a role in whether a lawyer
would be willing to take the case.
Phase Two
With the federal civil procedural requirement that a lawyer make a "reasonable
inquiry before filing,"2 as well as a lawyer's professional ethical obligation to
not bring frivolous proceedings, 3 lawyers should be wary about filing claims
and motions based solely on information received from clients. 4 A lawyer
should conduct an independent investigation, with the help of a PI, to establish
whether a petition for custody or other claim is meritorious.
Working with a PI at this early stage offers another strategic benefit; an

investigator can interview potential witnesses who at this stage may be more
willing to communicate information. Further, once litigation has begun, the
lawyer and the lawyer's agents are bound by the rules of professional
responsibility; a private investigator, as a lawyer's agent, cannot freely speak
with anyone the hiring lawyer knows to be represented by counsel. 5
Phase Three
Combining a private investigator's skills with applicable discovery procedures

can dramatically increase the production of relevant evidence. Most investigators
have resources at their disposal that can help them locate hidden assets. Any
information a PI cannot reach most likely could be reached through third-party
discovery procedures. Especially when defending against alimony and
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maintenance awards, a PI can confirm or discredit facts obtained through
discovery and follow up on leads generated by depositions.
A practiced investigator can also help gather and store real evidence for
litigation. This function is especially valuable to a lawyer who needs to
establish a clear chain of custody when submitting evidence into a court record.
The staple of many investigators is the location of hard-to-find persons; if a

telephone directory does not provide the location of an individual who
1 Bernard A. Jackovny, The Use of Investigators in Probate Litigation, TRUSTS &

ESTATES, Dec. 1993, at 26.
2 FED. R. CIV. P. 11. Many states have analogous rules.
3 MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (1993).
4 Colorado Chiropractic Council v. Porter Mem'l Hosp., 650 F. Supp. 231, 239 (D. Colo.
1986); see also Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir.
1985).
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may have information, there is a strong chance a PI will be able to locate the
potential witness.
Private investigators are also in a better position to establish congenial

relationships with potential witnesses. Compared with a lawyer's approach, a
private investigator's interview style may not be as adversarial or intimidating.
Private investigators also have the time to give hostile and friendly witnesses
personal attention, which may make the difference between a witness who
testifies grudgingly, thereby making a lawyer work for important recollections,
and one who volunteers information.
Phase Four
Private investigators can help during litigation. Whereas a subpoena may

unintentionally antagonize a witness, an investigator may ease ill feelings by
arranging the appearance of a witness for deposition or trial, which may even
include a wake-up call, negotiating with an employer for a change in a work
schedule, or providing transportation. An investigator can also help sequester
witnesses.
Finally, a lawyer can use a PI to impeach a witness who turns hostile, or whose
trial testimony is inconsistent with prior statements made to the investigator.
Because a lawyer cannot testify and advocate during the same trial, 6 using a PIor
a PI's tapes or handwritten notes of an interviewcan be crucial to the success of a
case.
How to Select a Private Investigator
Once a lawyer concludes that a case could benefit from a private investigator, the
lawyer or client must then hire one, provided the case can bear the financial
costs. There are safeguards a lawyer can exercise to make sure a chosen
134
investigator is qualified, reputable, and experienced. The most important
preparationschecking referrals, licensing and bonding requirements, experience,
and insurance coverageoccur before a lawyer ever meets a prospective PI.
Referrals
A lawyer should resort to colleagues in the first instance concerning whom they
would recommend. The length of time a lawyer and investigator have worked
together is a good gauge of how well the lawyer knows the PI, as well as a good
predictor of an investigator's professional life span and reliability. This latter
point may be important if the lawyer can foresee the case going to trial a year or
more in the future.
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State licensing boards may also provide a list of licensed investigators in a

particular geographic area.
Licensed and Bonded
An individual who is properly licensed as a private investigator in a particular

state means only that the person is registered with the proper examining or
licensing board. Usually state licensing boards require investigators to be
bonded.
If a licensing board cannot reveal whether there are any complaints harbored
against an investigator, it should be able to disclose if there has been
disciplinary action, or if there are restrictions on a PI's license. Although having
a license is necessary for regulating private investigators in most states, being
licensed does not guarantee that the PI has pertinent credentials or educational
background.
PI's Experience
The following aptly sums up the process:
During the initial phone call, describe the problem in general terms, gauging each
investigator's reaction as to how they would handle the case. Get a brochure and
writing sample sent in the mail so y ou can judge writing skills and the ability to
comprehensively and succinctly put a case together.7
Because the lawyer and investigator work in tandem, a lawyer should strive to
understand and approve of an investigator's work style.
A lawyer should insist on credentials. Someone who was a police detective or

was involved in law enforcement investigations probably has enough practical
experience to be a private investigator. A lawyer should also look for legal
136
training; a PI with legal experience will be more aware of what constitutes
admissible evidence. Even if the lawyer is working with an established private
investigator firm, he or she should still check the credentials of the person
assigned to the case.
Finally, if the work calls for a highly specialized skill, such as electronic
surveillance, be wary of investigators who claim they can do these services but
do not have training or experience. Very few investigators in a geographic area
may be able to perform these tasks competently, and invariably they know who
the few competitors are.
7 Roger E. Dunn, Working with a Private Investigator, WASHINGTON STATE

BAR NEWS, Nov. 1996, at 24.
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Insurance Coverage
A lawyer should request a certificate of professional liability insurance for the

lawyer's file. The certificate, issued by the insurance broker, itemizes the type
and limits of coverage. This may provide another avenue by which to verify
whether a PI is bonded by a commercial liability carrier, as some insurance
companies ask to be named as ''additional insureds."
A lawyer should also check for errors-and-omissions coverage, which is not

required by state licensing boards, but will offer recourse to a lawyer who is
sued for legal malpractice as a result of an investigator's mistake or intentional
wrongdoing.
How to Work with a Private Investigator
A lawyer can use certain procedures to make the most of a lawyer-investigator

relationship. Though some procedures deal with protecting an investigator's
communications as work product, most deal with outlining the authorized scope
of employment. Defining the scope of employment can help a lawyer in two
ways. First, it will clearly show the client what the investigator has been hired
to do, as well as the cost of hiring the detective. Second, defining the scope of
employment will documentand may limitthe extent of a lawyer's liability in
connection with the conduct of a private investigator.
Initial Meeting
The initial meeting sets the tone of the relationship. A lawyer should make sure
it is well organized, the goal being to give the private detective as much
information as possible. To this end, a lawyer should do the following:
1. Prepare a memo outlining the tasks.
138
The lawyer should be specific and clear in the outline. A competent detective
will be able to help refine the tasks, and recite various ways to accomplish the
goals from least to most expensive.
2. State in advance any budget constraints.
Although the client may be paying for the investigator, the detective will look
to the contracting lawyer for payment; any miscommunication among the client,
detective, and lawyer about the budgetary limit will mean the lawyer will be
liable for the unpaid bill.
3. State in advance any billing preferences.
4. Discuss the theory of the case, so the PI can understand the disputed facts of
the case.
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5. Give the PI copies of documents in the case file.
Providing accident reports, medical reports, affidavits, interrogatories, and

previous depositions is prudent, as it will reduce the amount of work a detective
has to do.
6. Cover potential conflicts of interest regarding other cases in which the

investigator was involved.
7. Probe the PI's work ethic.
Associating with a private investigator can enhance or detract from the lawyer's
reputation, and can help or hinder a client's case.
With an eye toward presenting a detective as a witness, a lawyer should
ask questions regarding the PI's past conduct, and
examine the PI's work product for conciseness, completeness, and presentation.
Billing Practices
Shortly after the initial interview, the private detective should send
documentation of his or her billing practices. A written fee agreement or letter of
engagement coupled with periodic billing is the best protection a lawyer can
have against unexpected fees. At the least, a private investigator should be able
to construct a written fee agreement. A written fee agreement "should specify
[the] hourly charge, what expenses are to be paid, and set a maximum figure for
both fees and expenses beyond which the investigator may not proceed without
further authorization in writing."8 Fees may be presented on a monthly or per-
project basis. Unexpected expenses may include out-of-pocket expenses (which
140
the PI may pass to the lawyer), special charges for court appearances, and
charges for mileage and travel time.
A letter of engagement serves the same purpose as a written fee agreement, but
provides more detailed information:
[A] letter of engagement should come from the firm or agency spelling out the
general terms of the scope of work, the financial arrangement, the investigation
plan, the budget and whether a retainer was required. The investigation plan is a
road map for gathering the most information possible. The aim is to help y ou and
the client make informed decisions in the development of the case. The plan should
[comprise steps that] logically cover the easiest things first. From those tasks, such
as background searches or interviews, other leads
8 Robert H. Meier, Hiring a Private Eye Still Makes Sense, FAMILY ADVOCATE,
Summer 1980, at 23, 24.
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may arise to help fine-tune the investigation plan. The plan should also provide
guidelines for evidence preservation, collection, examination, testing and
storing. . . .9
Reporting Practices
More so at the beginning of a relationship than at any other time, assignments

should be "well defined and closely supervised."10 A lawyer should ask for
frequent progress reports to make sure there are no misunderstandings about the
scope of an assignment or methods employed. A lawyer who is working with a
private detective for the first time should carefully monitor the work ethic of the
investigator. A lawyer should gauge whether a detective is resourceful and
capable of full disclosure of all relevant information, and conclude whether the
lawyer would be comfortable with the detective's conduct at all times. As both
the lawyer and detective become familiar with each other, the need for weekly or
biweekly interim reports may not be as necessary.
Trial Preparation Material11
A major benefit of a lawyer hiring such an agent is that the investigator's work
can be protected as a lawyer's work product if treated properly. To this end, all
correspondence, invoices, and other documents produced by the private
investigator should be marked as follows:
CONFIDENTIAL
ATTORNEY-CLIENT WORK PRODUCT
Especially in the case of interviews with potential witnesses, whether the

information is discoverable depends on the type of work product:
In addition to preserving handwritten notes, care should be used regarding what

form the interview is reported in. Most often an interview memoa transcription of
142
handwritten notesis easier to protect as work product than are tape-recorded
statements, written statements, declarations or prepared affidavits that the witness
reviewed and signed. If y ou feel y our case requires tape-recorded statements,
remember that every thing the witness say s on the tape becomes a matter of
record whether it cuts for or against y ou. If the

BAR NEWS, Nov. 1996, at 24, 25.
10 Richard B. Verner, A Litigator's Guide to Private Investigators, THE AMERICAN
LAWYER, May 1996, at 53, 54.
11 FED. R. CIV. P. 26(b)(3).
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investigator was making the recorded statement, he should preserve the original
tape as evidence to maintain a clear chain of custody. Make a copy of the tape for
all subsequent reviews and transcription. Do not run the risk of erasing the original
tape.12
Further, communications relayed from a client to a lawyer by way of an

investigator may be protected by the attorney-client privilege, or work-product
privileges.
Improper Conduct on the Part of a Private Investigator
To halt any possible improper conduct, a lawyer should closely monitor an

investigator the first time both work together. Discussed below are the most
common ethical and legal issues that may arise during the course of a lawyer-
investigator relationship, the potential ramifications of misconduct, and ways to
avoid these situations.
Compromising Witnesses
Interviews must be done without tainting witnesses or their statements.

Although the best investigators are trained to listen to witnesses and record
statements verbatim, 13 the hiring lawyer is ultimately responsible and must
ensure that an investigator does not misrepresent the facts or mislead
witnesses. 14
A lawyer should also make sure the investigator heeds the cardinal rule of
cultivating witnesses: Never pay a witness for information. Even harmless
payments for transportation or lost time at work may provide fodder for an
opposing lawyer to attack a witness's credibility. One lawyer-detective presents
the following solution to this problem:
[Witnesses may ] evoke sy mpathy, but they must be told that it will be impossible to
144
use them as witnesses if they are paid. I tell them that we would rather lose the
case than lose our licenses as attorney s. Sometimes such witnesses refuse to talk,
but, more often, they respect y our ethics and cooperate.15
A lawyer should also be mindful of the professional responsibility of not

communicating with parties who are represented by counsel about the sub-

BAR NEWS, Nov. 1996, at 24, 26.
13 Roger E. Dunn, Working with a Private Investigator, WASHINGTON STATE BAR
NEWS, Nov. 1996, at 24, 26.
14 Upjohn Co. v. Aetna Cas. & Sur. Co., 768 F. Supp. 1186, 121315 (W.D. Mich. 1991); In
re Environmental Ins. Declaratory Judgment Actions, 252 N.J. Super. 510, 600 A.2d 165
(Super. Ct. Law Div. 1991); Monsanto Co. v. Aetna Cas. & Sur. Co., 593 A.2d 1013, 1020
(Del. Super. Ct. 1990).
15 Susan Giller, Choosing and Using an Investigator, 15 LITIG. 35, 37 (Summer 1989).
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ject of the litigation. 16 Any information gathered in violation of this rule is not
admissible in court. 17 However, a private investigator may observe persons who
are represented by counsel. 18 In this respect, an investigator's testimony may
prove helpful in discrediting a spouse's claim of disability that is asserted to
obtain a higher alimony award.
Surveillance
Acquiring and using camera and audio surveillance as evidence is a highly

volatile undertaking. A prudent lawyer should shy away from recording
telephone conversations, given the potential civil and criminal liability
involved. 19
When contemplating the use of camera surveillance, a lawyer should keep in

mind that flagrante delicto photographs are not always called for; sometimes all
a lawyer needs is for an investigator to verify a client's suspicions through
observations. However, a lawyer who uses video surveillance should not record
the audio portion of the events documented; this may trigger protection under
federal and state wiretapping laws. 20 Further, a lawyer contemplating video
surveillance should orchestrate it in a way that avoids creating an invasion of
privacy claim: video of the interior of a target's residence should never be shot, 21
and nighttime surveillance should not invade areas within which a target had a
reasonable expectation of privacy. There also may be state Peeping-Tom statutes
designed to protect private residences from these types of intrusions.
Confidential Records
One should avoid accessing records that have guidelines designed to protect the
information. Credit reports and Federal Bureau of Investigation (FBI) "rap
sheets" are highly protected by federal law, and are not worth obtaining given
the availability of other sources that provide the same information. FBI rap
146
sheets, which are closed by law, can be re-created through court records, and
some states may provide state-maintained rap sheets for a minimal fee. 22
The Fair Credit Reporting Act23 regulates the acquisition and use of credit
reports. The act prohibits obtaining a credit report only under "false pre-
16 MODEL RULESOF PROFESSIONAL CONDUCT Rule 4.2 (1993).
17 Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 554 N.E.2d 266 (App. Ct. 1990).
18 Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 554 N.E.2d 266 (App. Ct. 1990).
19See Chapter 3.
20See Chapter 3.

NEWS, Nov. 1996, at 24, 27.
NEWS, Nov. 1996, at 24, 26.
23 15 U.S.C. 1681 et seq. (1997).
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tenses."24 This language may seem innocuous, but, if the ultimate usage is not
consumer related, then it may have been acquired under false pretenses. 25
Therefore, a lawyer who causes another to obtain a credit report for a purpose
outside the consumer-related limits may be liable for actual damages, attorneys'
fees, and punitive damages. 26 Being found liable for acquiring this information
illegally is highly likely, as a person who inquires about a credit report leaves a
conspicuous audit trail. Fortunately, the most damaging information on a credit
report will appear in public records, 27 and a skilled investigator will know how
to access these sources.
State freedom-of-information and related laws may classify information

differently; a driver's license in one state may be accessible for a minimum fee,
while the same information in another state may be considered confidential.
Further, some agencies may notify the person whose record was reviewed about
the inquiry. A competent private investigator should know the applicable state
law in this area.
Other Personal Torts
Under the doctrine of respondeat superior, a lawyer may face liability for an
investigator's slander, libel, invasion of privacy, or harassment, which may lead
to a claim of negligent infliction of emotional distress. A lawyer who closely
supervises an investigator's conduct can identify and curb such behavior.
Alternatively, if a lawyer does not want exposure to liability in a particularly
speculative undertaking, the best route may be for a client to absorb the liability,
by hiring the investigator as the client's agent.
Though private investigators are categorized as lawyers' agents, valuation

experts are deemed contracted professionals who have an ethical duty not to
succumb to the control of the hiring lawyer.
148
Valuation Experts
Virtually all states now view matrimony as an economic partnership between

two equal partners. 28 This doctrine has had its greatest impact on the way states
divide the marital estate. Equitable distribution means that most property
acquired during marriage is subject to equal division upon divorce. Courts do
not merely consider who holds legal title in property, but instead
24 15 U.S.C. 1681q (1997).
25 Hansen v. Morgan, 582 F.2d 1214 (9th Cir. 1978).
26 Yohay v. City of Alexandria Employ ees Credit Union, 827 F.2d 967 (4th Cir. 1987).

NEWS, Nov. 1996, at 24, 26.
28 Alan M. Grosman, Foreword to KALMAN A. BARSON, INVESTIGATIVE
ACCOUNTING IN MATRIMONIAL PROCEEDINGS at xxi (1993).
149
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routinely look to the value of the property. The valuation process usually
presents complex valuation questions, depending on the type of property.
Because of this complexity, and given the uniqueness of each divorce case,
valuation experts have become a necessary component in figuring out which
distributions are equitable.
There are several categories of valuation experts, or appraisers. Accountants can

detect unreported earnings in a small business, or document a spouse's financial
circumstances, which provides information for determining a maintenance award.
Consequently, lawyers hire accountants more than any other type of valuation
expert. 29 Accountants must have certified public accountant (CPA) licenses and
are regulated by a CPA's code of conduct. Even though accountants have a good
foundation to be competent appraisers, they must commit to further training to
be able to value a business. 30 For example, there are expertswho may or may
not be CPAswho specialize in valuing closely held businesses, intellectual
property, professional practices, and construction companies.
There are appraisers who value real property. Due to the failure of financial
institutions in the 1980s, 31 and a concern about the unregulated proliferation of
inexperienced appraisers, 32 there has been a concerted effort to raise real estate
appraisement to the level of a profession. As a result, this profession is regulated
by federal, 33 if not state, law. This federal legislation authorized The Appraisal
Foundation to police and set standards and qualifications for appraisers
nationally. 34 (The address for The Appraisal Foundation appears near the end of
this chapter.) The Uniform Standards of Professional Appraisal Practice
(USPAP), which are promulgated by The Appraisal Foundation, provide the
standards of conduct for real estate appraisals.
Finally, there are appraisers who specialize in valuing personal property such as
jewelry, cars, and antiques. Whereas The Appraisal Foundation is federally
authorized to regulate only real estate appraisers, the American Society of
150
Appraisers (ASA) is one of several professional organizations that provide
standards for realty, personalty, and intangible property appraisers. The ASA
publishes the Principles of Appraisal Practice and Code of Ethics, which govern
its membership. (The address of the ASA also appears near the end of this
chapter.)
29 Sandra Morgan Little & Thomas F. Burrage, Lining Up an Expert, FAMILY

ADVOCATE, Spring 1995, at 15.
30 Kenneth J. Pia, Jr., Who Is Qualified to Value a Business?, FAMILY ADVOCATE,
Spring 1995, at 22.
31 Dennis Ingwersen, Professional Standards for the Appraiser, THE COLORADO
LAWYER, June 1993, at 1263.
32 Kenneth J. Pia, Jr., Who Is Qualified to Value a Business?, FAMILY ADVOCATE,
Spring 1995, at 22.
33 Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
12 U.S.C. 3339 (1989).
34 12 U.S.C. 3339 (1989).
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The next section covers when to hire a valuation expert and presents some of the
ethical concerns that govern these professionals.
When to Use a Valuation Expert
A client paying $10,000 for a valuation expert's services is not beyond reason.
Using valuation experts can drain the resources of a marital estate, especially
when the spouses use such experts to wage battle over the true value of
property. 35
The ultimate goal is to divide matrimonial property equitably between the two
spouses. If the property, such as stocks or bonds, is divisible, then the best
route may be to split the ownership interest without valuation. 36 If the spouses
can agree on a reasonable value for a particular property, then a valuation expert
may not be necessary. The spouses can initially look to many sources for clues
regarding value: the market price of similar homes in the neighborhood, annual
valuation information on employee pension plans, buy/sell agreements for
closely held corporations, personal property values as stated in insurance
policies, or the actual selling price of property that the spouses determine must
be sold. 37 If there is no market for the asset, 38 or one spouse controls the assets
or valuation of the asset, 39 then a valuation expert may be necessary.
Ethical Considerations
The USPAP and ASA ethical standards, which subject appraisers to liability for
unethical conduct, 40 serve to protect clients as well as establish client confidence
in the appraisal process. 41 These standards stress appraiser competency and
independence. 42
Appraiser competency means that the professional must have the knowledge and
experience to complete an appraisal. An appraiser must fully disclose any lack of
152
knowledge. Further, an appraiser is under a duty to take all
35 Michael B. Atkins, Use of Experts in Matrimonial Actions and Custody

Proceedings, in USING EXPERTS IN CIVIL CASES 211, 218 (Melvin D. Kraft
ed., 1982).
36 Robert E. Kleeman, Jr. & Gerald N. Weaver, When to Use an Appraiser, FAMILY
37 Robert E. Kleeman, Jr. & Gerald N. Weaver, When to Use an Appraiser, FAMILY
38 United States v. Simmons, 346 F.2d 213 (5th Cir. 1965); Estate of Bright v. United States,
658 F.2d 999 (5th Cir. 1981).
39 Sandra Morgan Little & Thomas F. Burrage, Lining Up an Expert, FAMILY
40 ASA PRINCIPLES OF APPRAISAL PRACTICE AND CODE OF ETHICS Rule 7.4
(1994).
41 ASA PRINCIPLES OF APPRAISAL PRACTICE AND CODE OF ETHICS Rule 7
(1994).
42 Dennis Ingwersen, Professional Standards for the Appraiser, THE COLORADO
LAWYER, June 1993, at 2163, 216465.
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the steps necessary to complete an assignment competently; a hasty or

unconsidered opinion is inaccurate, and highly unprofessional. 43
Appraiser independence means that an appraiser must act as a disinterested third

party at all times, including in relation to other employed appraisers. Further,
an appraiser cannot make deceptive claims in advertising, suppress or minimize
any facts, or accept compensation that is contingent upon finding a
predetermined value. 44 For the full text of the USPAP or ASA ethical standards,
or to find a competent appraiser, contact the following:
The Appraisal Foundation

1029 Vermont Avenue, NW
Suite 900
Washington, DC 20005
202/347-7722
www.appraisalfoundation.org
American Society of Appraisers

P.O. Box 17265
555 Herndon Parkway, Suite 125
Washington, DC 20041
Herndon, VA 20170
800/272-8258 (ASA-VALU)
or 703/478-2228
www.appraisers.org/asa
Conclusion
The well-planned use of a private investigator can help a lawyer during many
different phases of litigation. Properly choosing and guiding an investigatoras
well as being aware of the prevalent ethical and legal issuesis the best way to
154
control the amount of exposure to liability a lawyer may have when working
with an investigator.
Valuation experts can be beneficial if used correctly. There are fewer issues of
lawyer liability for the actions of appraisers, however, because appraisers are
professionals guided by their own codes of ethical conduct.
43 ASA PRINCIPLES OF APPRAISAL PRACTICE AND CODE OF ETHICS

Rules 7.47.6 (1994).
44 ASA PRINCIPLES OF APPRAISAL PRACTICE AND CODE OF ETHICS Rules 7.1,
7.2 (1994).
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Chapter 6
Third-Party Tort Law
This chapter primarily discusses the types of tort claims divorced or divorcing
spouses have asserted against third parties involved in a marriage relationship,
such as a third party who induces a spouse to leave a marriage, or a third party
who violates a professional duty owed to a faithful spouse. The chapter initially
addresses a small body of case law regarding third parties who have brought suit
against a widow or widower for the wrongful death of the victim spouse.
Wrongful-Death Actions
Sometimes a person's intentional conduct leads to the death of a spouse. When

such a death occurs, a third person may sue the partner1 or spouse2 for the
wrongful death. Independent of any criminal outcome, third parties such as
relatives, 3 the decedent's estate, 4 or the children of the marriage5 have
successfully maintained wrongful-death actions against spouses. Further, states
1 Blanco v. Sullivan, 19 Fam. L. Rep. (BNA) 1083 (N.Y. Sup. Ct. Nov. 16, 1992);
Armstrong v. Randle, 881 S.W.2d 53 (Tex. App. 1994).
2 Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).
3 Dressler v. Tubbs, 435 So. 2d 792 (Fla. 1983); see also Constanza v. Constanza, 66 N.J.
63, 328 A.2d 230 (1974).
4 Selheimer v. Moore, No. 83C-AP-78, 1986 WL 1258 (Del. Super. Ct. Jan. 28, 1986);
Porter v. Farmer's Ins. Co., 102 Idaho 132, 627 P.2d 311 (1981); Maestas v. Overton, 87
N.M. 213, 531 P.2d 947 (1975); Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955); Jones v.
Pledger, 363 F.2d 986 (D.C. Cir. 1966).
5 Flagg v. Loy, 241 Kan. 216, 734 P.2d 1183 (1987); Eagan v. Calhoun, 347 Md. 72, 698
156
A.2d 1097 (1997); Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977). An equitably adopted
child may lack standing to initiate an action for the wrongful death of an adoptive parent.
Herrera v. Glau, 772 P.2d 682 (Colo. Ct. App. 1982).
157
Page 72
that bar spouses from asserting tort claims because of interspousal immunity
may allow actions for wrongful death. 6
Specific Third-Party Causes of Action
A divorcing spouse may have a claim against a third party for conduct that
contributes to the demise of the marital relationship. Although there is one
child-abduction case involving third-party liability, 7 the most common
scenarios involve paramours and counseling professionals who had a tangential
relationship with one of the spouses. Unlike tort claims between spouses,
joinder of the tort claim with a divorce action is not an issue. This section
covers the causes of action that are commonly asserted against third parties,
which include alienation of affections, criminal conversation, and professional
malpractice.
Alienation of Affections and Criminal Conversation
These common-law torts give a spouse recourse for intentional interference with
his or her marriage relationship by a third party. As with breach of marriage
promises, 8 many states have abolished these claims by antiheartbalm statutes or
case law. The chart in Appendix G lists the states that have abrogated actions for
alienation of affections and criminal conversation.
Implications
As summarized in Appendix G, the majority of states do not recognize the tort

of alienation of affections. The courts within these states have barred other,
similarly grounded causes of action on the grounds that they merely state a
claim for alienation of affections. Hence, state courts have barred spousal claims
based on theories of fraud, 9 negligent misrepresentation, 10 breach of professional
contract, 11 interference with the marital contract, 12
158
6 Trust Co. Bank v. Thornton, 186 Ga. App. 706, 368 S.E.2d 158 (Ct. App. 1988);
Herget Nat'l Bank v. Berardi, 64 Ill. 2d 467, 356 N.E.2d 529 (1976); Welch v. Davis,
410 Ill. 130, 101 N.E.2d 547 (1961); Silva v. Silva, 446 A.2d 1013 (R.I. 1982).
7 Marshak v. Marshak, 226 Conn. 652, 628 A.2d 964 (1993).
8See Chapter 9.
9 Richard P. v. Superior Court (Gerald B.), 202 Cal. App. 3d 1089, 249 Cal. Rptr. 246 (Ct.
App. 1988); Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412 (1989); Moorman v. Walker, 54
Wash. App. 461, 773 P.2d 887 (Ct. App. 1989); Lund v. Caple, 100 Wash. 2d 739, 675 P.2d
226 (1984); Koestler v. Pollard, 162 Wis. 2d 797, 471 N.W.2d 7 (1991).
10 Homer v. Long, 90 Md. App. 1, 599 A.2d 1193 (Ct. Spec. App. 1992).
11 Nicholson v. Han, 12 Mich. App. 35, 162 N.W.2d 313 (Ct. App. 1968).
12 Howton v. Avery, 511 So. 2d 173 (Ala. 1987); Goldberg v. Musim, 162 Colo. 461, 427
P.2d 698 (1967); Arnac v. Wright, 163 Ga. App. 33, 292 S.E.2d 440 (Ct. App. 1982);
Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573 (Iowa Ct. App. 1987); Speer v.
Dealy, 42 Neb. 542, 495 N.W.2d 911 (1993); Pickering v. Pickering, 434 N.W.2d 758 (S.D.
1989); Weaver v. Union Carbide Corp., 180 W. Va. 556, 378 S.E.2d 105 (1989).
159
Page 73
wrongful divorce, 13 and intentional infliction of emotional distress. 14
A minority of states do recognize these actions, and plaintiffs have been able to
recover substantial damages. 15 Most courts hold that love and affection must
exist between a husband and wife before a third party can be liable for alienation
of affections. 16 An employer, under a theory of respondeat superior, should not
be held liable under a claim of alienation of affections for a supervisor's affair
with a coworker. 17 A plaintiff may not be required to prove that the third-party
defendant intended to estrange one spouse from the other. 18
Intentional Infliction of Emotional Distress (IIED)
A third party's words or conduct may steer a spouse to abandon his or her
marriage. In lieu of the tort of alienation of affections, a spouse may, 19 but most
likely will not, 20 be able to recover under an IIED theory. This is also true
when the individual21 or third-party record holder22 aids a faithful spouse in
uncovering an extramarital affair.
The most common type of IIED case involves a paramour. However, courts are
unwilling to allow spouses to recover against a third party just for participating
in an affair that interferes with the marriage relationship. 23 To
13 Finkelberg v. Luckett, 608 So. 2d 1214 (Miss. 1992); Prill v. Hampton, 154 Wis.
2d 666, 453 N.W.2d 909 (1990).
14 D.D. v. C.L.D., 600 So. 2d 219 (Ala. 1992).
15 Hunt v. Chang, 60 Haw. 608, 594 P.2d 118 (1979); Kirk v. Koch, 607 So. 2d 1220 (Miss.
1992); Miller v. Neill, 867 S.W.2d 523 (Mo. Ct. App. 1993); Hutelmy er v. Cox, No. 96-
CVD-464 (Almance County Ct. App. Sept. 3, 1997) ($1 million award still pending); Gray
v. Hoover, 94 N.C. App. 724, 381 S.E.2d 472 (Ct. App. 1989); Heist v. Heist, 46 N.C. App.
521, 265 S.E.2d 434 (Ct. App. 1980); Rivers v. Rivers, 292 S.C. 21, 354 S.E.2d 784 (1987);
Albertini v. Veal, 292 S.C. 561, 357 S.E.2d 716 (Ct. App. 1987); Pickering v. Pickering, 434
N.W.2d 758 (S.D. 1989); Pankratz v. Miller, 401 N.W.2d 543 (S.D. 1987); Nelson v.
160
Jacobsen, 669 P.2d 1207 (Utah 1983).
16 Thompson v. Chapman, 93 N.M. 356, 600 P.2d 302 (1979); Peake v. Shirley, 109 N.C.
App. 591, 427 S.E.2d 885 (Ct. App. 1993); Heist v. Heist, 46 N.C. App. 521, 265 S.E.2d 434
(Ct. App. 1980); Pankratz v. Miller, 401 N.W.2d 543 (S.D. 1987).
17 Helena Lab. Corp. v. Sny der, 886 S.W.2d 767 (Tex. 1994); Jackson v. Righter, 891 P.2d
1387 (Utah 1995).
18 Miller v. Neill, 867 S.W.2d 523 (Mo. Ct. App. 1993).
19 Van Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983); Singh v. Singh, 81 Ohio App. 3d
376, 611 N.E.2d 347 (Ct. App. 1992); Spiess v. Johnson, 89 Or. App. 289, 748 P.2d 1020
(Ct. App.), aff'd, 307 Or. 242, 765 P.2d 811 (1988).
20 D.D. v. C.L.D., 600 So. 2d 219 (Ala. 1992); Richard P. v. Superior Court (Gerald B.),
202 Cal. App. 3d 1089, 249 Cal. Rptr. 246 (Ct. App. 1988); Haldane v. Bogy, 208 Cal. App.
2d 302, 25 Cal. Rptr. 392 (Ct. App. 1962); Destefano v. Grabrian, 763 P.2d 275 (Colo.
1988); Browning v. Browning, 584 S.W.2d 406 (Ky. Ct. App. 1979); Schieffer v. Catholic
Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 (1993); Pickering v. Pickering,
434 N.W.2d 758 (S.D. 1989); Lund v. Caple, 100 Wash. 2d 739, 675 P.2d 226 (1984);
Koestler v. Pollard, 162 Wis. 2d 797, 471 N.W.2d 7 (1991).
21 Cronin v. State, 148 Vt. 252, 531 A.2d 929 (1987).
22 Pemberton v. Bethlehem Steel Corp., 66 Md. App. 133, 502 A.2d 1101 (Ct. Spec. App.
1986); Ace v. State, 207 A.D.2d 813, 616 N.Y.S.2d 640 (App. Div. 1994).
23 Strauss v. Cilek, 418 N.W.2d 378 (Iowa Ct. App. 1987); Scamardo v. Dunaway, 650 So.
2d 417 (La. Ct. App. 1995); Gasper v. Lighthouse, Inc., 73 Md. App. 367, 533 A.2d 1358
(Ct. Spec. App. 1987); Wilson v. Still, 819 P.2d 714 (Okla. 1991); Alexander v. Inman, 825
S.W.2d 102 (Tenn. Ct. App. 1991); Truitt v. Carnley, 836 S.W.2d 786 (Tex. App. 1992).
161
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this end, courts do not allow IIED actions that are criminal-conversation actions
under another label. 24 The outcome is no different when the paramour is a
professional, such as a therapist25 or dentist, 26 initially servicing plaintiff's
spouse in a professional relationship.
An injured spouse should be able to recover against a paramour, however, when

the paramour directs outrageous conduct toward him or her. 27 More often than
not, a plaintiff spouse cannot recover under an IIED theory. However, if the
paramour was a secular marriage counselor, and he or she violates a duty owed a
faithful spouse, the aggrieved spouse should be able to plead professional
malpractice.
Professional Malpractice
A professional can be liable to a spouse for breaching a professional standard of

care. A professional can do this by revealing confidential information obtained
from a spouse during a divorce. 28
While generally considered unethical, 29 a lawyer who has an affair with a client
during the course of a divorce action may30 or may not31 be liable to the client
under a theory of breach of fiduciary duty. This cause of action is even more
plausible when the lawyer has an affair with a client's spouse during the course
of divorce litigation. 32
A psychologist, psychiatrist, or social worker can be negligent by engaging in

sexual conduct with a patient's spouse33 or companion. 34 However,
24 Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988); Schieffer v. Catholic

Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 (1993); Spiess v. Johnson,
89 Or. App. 289, 748 P.2d 1020 (Ct. App.), aff'd, 307 Or. 242, 765 P.2d 811 (1988);
Pickering v. Pickering, 434 N.W.2d 758 (S.D. 1989); Koestler v. Pollard, 162 Wis.
2d 797, 471 N.W.2d 7 (1991).
162
25 Smith v. Pust, 19 Cal. App. 4th 263, 23 Cal. Rptr. 2d 364 (Ct. App. 1993); Destefano v.
Grabrian, 763 P.2d 275 (Colo. 1988); Greene v. Roy, 604 So. 2d 1359 (La. Ct. App. 1992);
Homer v. Long, 90 Md. App. 1, 599 A.2d 1193 (Ct. Spec. App. 1992); Gasper v.
Lighthouse, Inc., 73 Md. App. 367, 533 A.2d 1358 (Ct. Spec. App. 1987); Schieffer v.
Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d 907 (1993); Strock v.
Pressnell, 38 Ohio St. 3d 207, 527 N.E.2d 1235 (1988); Bladen v. First Presby terian
Church, 857 P.2d 789 (Okla. 1993); Lien v. Barnett, 58 Wash. App. 680, 794 P.2d 865 (Ct.
App. 1990); Weaver v. Union Carbide Corp., 180 W. Va. 556, 378 S.E.2d 105 (1989).
26 Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573 (Iowa Ct. App. 1987).
27 Jennings v. Jessen, 103 N.C. App. 739, 407 S.E.2d 264 (Ct. App. 1991).
28 Dy mek v. Ny quist, 128 Ill. App. 3d 859, 469 N.E.2d 659 (App. Ct. 1984); MacDonald v.
Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 (App. Div. 1982); Allen v. Smith, 179 W. Va.
360, 368 S.E.2d 924 (1988); see also Washburn v. Rite Aid Corp, 695 A.2d 495 (R.I. 1997)
(pharmacy ).
29 Laura W. Morgan, Sex and the Bar: An Update on Malpractice Liability, 9 DIVORCE
LITIG. 96 (1997).
30 McDaniel v. Gile, 230 Cal. App. 3d 363, 281 Cal. Rptr. 242 (Ct. App. 1991); Tante v.
Herring, 264 Ga. 694, 453 S.E.2d 686 (1994) (dicta); Doe v. Roe, 289 Ill. App. 3d 116, 681
N.E.2d 640 (App. Ct. 1997).
31 Suppressed v. Suppressed, 206 Ill. App. 3d 918, 565 N.E.2d 101 (App. Ct. 1990);
Vallinoto v. DiSandro, 688 A.2d 830 (R.I. 1997).
32 Nobes v. Earhart, 769 S.W.2d 868 (Tenn. Ct. App. 1988).
33 Richard H. v. Larry D., 198 Cal. App. 3d 591, 243 Cal. Rptr. 807 (Ct. App. 1988); Horak
v. Biris, 130 Ill. App. 3d 140, 474 N.E.2d 13 (App. Ct. 1985); Figueiredo-Torres v. Nickel,
321 Md. 642, 584 A.2d 69 (1991); Mazza v. Huffaker, 61 N.C. App. 170, 300 S.E.2d 833
(Ct. App. 1983).
34 Rowe v. Bennett, 514 A.2d 802 (Me. 1986).
163
courts have rejected psychologist, psychiatrist, and social worker malpractice claim
professional paramour at the time of the improper sexual conduct. 35 State courts ha
grounds. 36
Psychologi
Husband and Wife sought marriage counseling from Professional. During the cours
romantic relationship with Wife, and consistently told Husband to distance himsel
Husband filed an amended complaint against Professional alleging there were stand
relationship, and that Professional breached these standards of care. The circuit cou
The state's highest court granted certiorari before the appellate court ruled on the ca
intentional infliction of emotional distress, and that these claims survived the abol
Torres v. Nickel, 321 Md. 642, 584 A.2d 69 (1991).
Clergy Misconduct
Based on their interpretation of the Free Exercise Clause of the First Amendment,
counseling services provided by a church are held to be purely secular, a court may
bright-line rule, which allows a cause of action to lie against clergy members in th
marital counseling. 39
35 Perkins v. Dean, 570 So. 2d 1217 (Ala. 1990); Smith v. Pust, 19 Cal. App. 4th 263, 23 Cal. R
307 Or. 242, 765 P.2d 811 (1988).
36 Harrington v. Pages, 440 So. 2d 521 (Fla. Dist. Ct. App. 1983); Martino v. Family Serv. Age
37 Handley v. Richards, 518 So. 2d 682 (Ala. 1987); Baumgartner v. First Church of Christ, Sc
App. 1992); Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991); By rd v. Faber, 57 Ohio St. 3
Barnett, 58 Wash. App. 680, 794 P.2d 865 (Ct. App. 1990); see also H.R.B. v. J.L.G., 913 S.W.2
38 Dausch v. Ry kse, 52 F.3d 1425 (7th Cir. 1994).
164
39 Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988); Amato v. Greenquist, 287 Ill. App. 3d 92
1995); F.G. v. MacDonell, 291 N.J. Super. 262, 677 A.2d 258 (Super. Ct. App. Div. 1996); Sand
165
Thou Shalt Not Covet
Husband and Wife joined fledgling Church in 1987. Church encouraged its parishi
seeking out secular professionals. In 1990, Wife began ''faith counseling" with Pas
started a sexual affair. Thereafter Husband also began "faith counseling" with Pastor
the two had been exchanging, including Christmas and Valentine's Day cards with
Pastor resigned his position with Church. Both Pastor and Wife divorced their spo
Husband filed suit against Church and Pastor, alleging intentional infliction of emo
common-law fraud. The trial court dismissed all the claims. Husband appealed. Th
infliction of emotional distress against Pastor. The appellate court noted, quoting o
[c]lerics cannot, using the shield of the first amendment, masquerade in the form of marriag
culminating in a sexual relationship with a counsellee and other ty pes of harm allegedly resu
fear of treading on doctrinal matters is minimal, and to establish a standard of care involved n
Amato v. Greenquist, 287 Ill. App. 3d 921, 679 N.E.2d 446 (App. Ct. 1997).
Conclusion
In striking a balance between conduct expected between estranged spouses and con
involved in marital disputes. In particular, courts have found wrongful-death claim
third persons have been held liable when their conduct is outrageous and specifical
professional standard of care owed a faithful spouse, such as when a third party disc
spouse or companion. Though most clergy members are immune from liability for
who act outside the tenets of their religion, such as when a clergy member practice
an individual who initially sought marriage counseling.
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Chapter 7
Third-Party Interests in Marital Property
Third partiesincluding parents and relatives, close corporations, and friends of a

spousemay have interests in marital property. Some third parties have legitimate
interests in martial property. This group includes parents who intend to gift or
bequeath property that is currently being used and improved by the marital
estate, but who have yet to transfer title to the real property. Other third parties
may have an illegitimate interest in marital property, such as those parties used
by a spouse to dissipate marital assets.
The chapter examines when joinder or intervention of a third party may be

required, the alternatives available to state divorce courts when a third party has
an interest in marital property, and actions divorce courts have taken when a
business entity is involved.
Joinder and Intervention of Legitimate Third Parties1
Property that is owned by third parties, but used by a married couple, generally
is not divisible by divorce courts. 2 Similarly, valid gifts to spouses' chil-
1 The case law covering divorce courts' treatment of illegitimate third parties and
business entities is discussed in the sections of this chapter entitled "Equitable
Remedies" and "Business Entities," respectively.
2 Cox v. Cox, 882 P.2d 909 (Alaska 1994); Addis v. Addis, 288 Ark. 205, 703 S.W.2d 852
(1986); Porcaro v. Porcaro, 531 So. 2d 407 (Fla. Dist. Ct. App. 1988); Addington v.
Addington, 522 So. 2d 897 (Fla. Dist. Ct. App. 1988); In re Zwart, 245 Ill. App. 3d 567, 614
N.E.2d 884 (App. Ct. 1993); Schueneman v. Schueneman, 591 N.E.2d 603 (Ind. Ct. App.
1992); Sherry v. Sherry, 111 Idaho 185, 722 P.2d 494 (Ct. App. 1986); Walton v. Walton,
167
769 S.W.2d 162 (Mo. Ct. App. 1989); In re Owen, 244 Mont. 306, 797 P.2d 226 (1990);
Romagno v. Romagno, 139 A.D.2d 979, 530 N.Y.S.2d 155 (App. Div. 1987); Weaver v.
Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (Ct. App. 1985); In re Bushell, 122 Or. App. 43,
857 P.2d 174 (Ct. App. 1993); Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994); Hurley
v. Hurley, 610 A.2d 80 (R.I. 1992); Panhorst v. Panhorst, 301 S.C. 100, 390 S.E.2d 376
(1990); Whitehead v. Whitehead, 836 P.2d 814 (Utah Ct. App. 1992); see also BRETT
TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 5.07 (1994 & Supp. 1996).
168
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dren, 3 or held for children, 4 are not considered part of the marital estate. 5 In the
rare instances when a third party's property does become involved in divorce
litigation, state divorce courts have consistently held that the third party must
be a party to the divorce litigation before its property may be affected. 6
States approach the involvement of third parties in divorce litigation differently.

Two state divorce courts adjudicate the rights of third parties only when there is
a conspiracy to defraud one of the spouses in the divorce litigation. 7 There is
also case law in two jurisdictions that totally bars third-party claims to marital
property. 8 This section covers the case law on joinder and intervention of
legitimate third parties in the jurisdictions that do allow it.
Joinder of Legitimate Third Parties
Third Parties with Proprietary Interests
Some state divorce courts have specifically held they have jurisdiction to join a
third party in divorce litigation. 9 Joinder in divorce litigation is required if the
title to the property is in dispute10 or subject to sale. 11
3 Davidson v. Davidson, 643 So. 2d 1001 (Ala. Ct. App. 1994); Madere v. Madere,
632 So. 2d 1180 (La. Ct. App. 1994); Parker v. Parker, 1 Neb. Ct. App. 187, 492
N.W.2d 50 (Ct. App. 1992); Hutchings v. Hutchings, 155 A.D.2d 971, 547 N.Y.S.2d
970 (App. Div. 1989); Weaver, 72 N.C. App. 409, 324 S.E.2d 915 (Ct. App. 1985);
Jefferies v. Jefferies, 895 P.2d 835 (Utah Ct. App. 1995); Clements v. Clements, 10
Va. App. 580, 397 S.E.2d 257 (Ct. App. 1990).
4In re Glessner, 119 Ill. App. 3d 306, 456 N.E.2d 311 (App. Ct. 1983); In re Gebhart, 240
Mont. 165, 783 P.2d 400 (1989); Lawrence v. Lawrence, 100 N.C.App. 1, 394 S.E.2d 267
(Ct. App. 1990).
5 However, courts generally view transfers of property to children as suspect dissipation.
See infra note 116.
6 Cook v. Cook, 248 Ala. 206, 27 So. 2d 255 (1946); Copeland v. Copeland, 2 Ark. App. 55,
169
616 S.W.2d 773 (Ct. App. 1981); Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212
(App. Ct.), appeal denied, 217 Conn. 803, 584 A.2d 471 (1990); Rossiter v. Rossiter, 4
Haw. App. 333, 666 P.2d 617 (Ct. App. 1983); In re Olbrecht, 232 Ill. App. 3d 358, 597
N.E.2d 635 (App. Ct. 1992); In re Marriage of Vucic, 216 Ill. App. 3d 692, 576 N.E.2d 406
(App. Ct. 1991); Simmons v. Simmons, 87 Ill. App. 3d 651, 409 N.E.2d 321 (App. Ct.
1980); Alvino v. Alvino, 659 S.W.2d 266 (Mo. Ct. App. 1983); Drey er v. Drey er, 657
S.W.2d 363 (Mo. Ct. App. 1983); Arnold v. Arnold, 214 Neb. 39, 332 N.W.2d 672 (1983);
Uslar v. Uslar, 253 N.J. Super. 289, 601 A.2d 761 (Super. Ct. App. Div. 1992); Swindell v.
Lewis, 82 N.C. App. 423, 346 S.E.2d 237 (Ct. App. 1986); Maher v. Maher, 64 Ohio App.
2d 22, 410 N.E.2d 1260 (Ct. App. 1978); Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d
4 (1991); Seawright v. Seawright, 305 S.C. 167, 406 S.E.2d 386 (Ct. App. 1991); Sloan v.
Sloan, 683 S.W.2d 751 (Tex. App. 1984); Fischer v. Fischer, 175 W. Va. 753, 338 S.E.2d
233 (1985); Reilly v. Reilly, 671 P.2d 330 (Wy o. 1983); see also Frank D. Wagner,
Annotation, Propriety of Consideration of, and Disposition as to, Third Persons' Property
Claims in Divorce Litigation, 63 A.L.R.3d 373 (1975 & Supp. 1996).
7 Smela v. Smela, 141 Mich. App. 602, 367 N.W.2d 426 (Ct. App. 1985); Donahue v.
Donahue, 134 Mich. App. 696, 352 N.W.2d 705 (Ct. App. 1984); Hoffman v. Hoffman,
125 Mich. App. 488, 336 N.W.2d 34 (Ct. App. 1983); Dobbert v. Dobbert, 264 Wis. 641, 60
N.W.2d 378 (1953).
8 Eberly v. Eberly, 489 A.2d 433 (Del. Super. Ct. 1985); Joseph B. P. v. Kathleen M., 469
A.2d 800 (Del. 1983); Arneson v. Arneson, 38 Wash. 2d 99, 227 P.2d 1016 (1951); see also
Frank D. Wagner, Annotation, Propriety of Consideration of, and Disposition as to, Third
Persons' Property Claims in Divorce Litigation, 63 A.L.R.3d 373 (1975 & Supp. 1996).
9 Fields v. Fields, 160 Fla. 561, 35 So. 2d 722 (1948); In re Marriage of Olbrecht, 232 Ill.
App. 3d 358, 597 N.E.2d 635 (App. Ct. 1992); Feinstein v. Feinstein, 778 S.W.2d 253 (Mo.
Ct. App. 1989); Sexton v. Sexton, 298 S.C. 359, 380 S.E.2d 832 (1989).
10In re Marriage of Davis, 68 Cal. App. 3d 294, 137 Cal. Rptr. 265 (Ct. App. 1977); Petrie
v. Petrie, 226 A.D.2d 951, 511 N.Y.S.2d 722 (App. Div. 1987); Wright v. Wright, 199 Okla.
291, 185 P.2d 915 (1947); Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991).
11 Popack v. Popack, 179 A.D.2d 746, 578 N.Y.S.2d 650 (App. Div. 1992).
170
Page 79
However, joinder of third parties who legitimately own property may not be
necessary if the divorce court can distribute the value of a proprietary interest via
a monetary award. 12 Further, joinder of third parties may be denied if other
means of protection are available, 13 or if there are countervailing concerns, such
as privacy rights. 14
Effect of Joinder
Joinder is important because divorce courts cannot constitutionally bind third

parties who were not properly served in the suit. 15 Although a divorce court
may not have the authority to award marital property to a third party, 16 divorce
courts in several jurisdictions have determined the final disposition of property
rights between estranged spouses and legitimate third parties who were joined in
a divorce action. 17
Effect of Intervention by Legitimate Third Parties
Third parties can intervene in divorce actions to protect their interests. 18

Intervention must occur in a timely manner, usually before a judgment is
rendered. 19 Divorce courts may not allow intervention when neither spouse
sought to join the person, 20 or when the applicant did not make a prima facie
showing that intervention was proper. 21 Further, a divorce court may not have
12 Adams v. Adams, 567 So. 2d 8 (Fla. Dist. Ct. App. 1990); In re Sokolowski, 232
Ill. App. 3d 535, 597 N.E.2d 675 (App. Ct. 1992); Sovern v. Sovern, 535 N.E.2d 563
(Ind. Ct. App. 1989); Beckett v. Beckett, 186 Mich. App. 151, 463 N.W.2d 211 (Ct.
App. 1990); Zahibi v. Zahibi, 760 S.W.2d 539 (Mo. Ct. App. 1988); Krinsky v.
Krinsky, 208 A.D.2d 599, 618 N.Y.S.2d 36 (App. Div. 1994); Locklear v. Locklear,
92 N.C. App. 299, 374 S.E.2d 406 (1988); Baker v. Baker, 83 Ohio App. 3d 700, 615
N.E.2d 699 (Ct. App. 1992); K.B. v. N.B., 811 S.W.2d 634 (Tex. App. 1991); see
also Callnon v. Callnon, 7 Cal. App. 2d 676, 46 P.2d 988 (Ct. App. 1935); but see
Abernathy v. Abernathy, 288 S.C. 322, 342 S.E.2d 595 (1986).
13 Timmerman v. Timmerman, 891 S.W.2d 540 (Mo. Ct. App. 1995); In re Marriage of
171
Stamatiou, 798 S.W.2d 737 (Mo. Ct. App. 1990); K.B. v. N.B., 811 S.W.2d 634 (Tex. App.
1991).
14 Boy le v. Boy le, 194 W. Va. 124, 459 S.E.2d 401 (1995).
15 McLaurine v. McLaurine, 521 So. 2d 53 (Ala. Civ. App. 1988); Life Mktg. of Florida v.
AIG Life Ins. Co., 588 So. 2d 663 (Fla. Dist. Ct. App. 1991); In re Schmidt, 242 Ill. App.
3d 961, 610 N.E.2d 673 (App. Ct. 1993); Zahibi v. Zahibi, 760 S.W.2d 539 (Mo. Ct. App.
1988); Feinstein v. Feinstein, 778 S.W.2d 253 (Mo. Ct. App. 1983); Aniballi v. Aniballi, 255
Mont. 384, 842 P.2d 342 (1992).
16 Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (Ct. App. 1981); Dallas v.
Dallas, 670 S.W.2d 535 (Mo. Ct. App. 1984); Adams v. Adams, 129 A.D.2d 661, 514
N.Y.S.2d 420 (App. Div. 1987).
17In re Marriage of Davis, 68 Cal. App. 3d 294, 137 Cal. Rptr. 265 (Ct. App. 1977); In re
Marriage of Pahlke, 120 Ill. App. 3d 1009, 458 N.E.2d 1141 (App. Ct. 1983); Robinson v.
Robinson, 100 Ill. App. 3d 437, 429 N.E.2d 183 (App. Ct. 1981); Mullins v. Mullins, 797
S.W.2d 491 (Ky. Ct. App. 1990); Dallas v. Dallas, 670 S.W.2d 535 (Mo. Ct. App. 1984).
18 Glade v. Glade, 38 Cal. App. 4th 1441, 45 Cal. Rptr. 2d 695 (Ct. App. 1995); Adler v.
Adler, 365 So. 2d 411 (Fla. Dist. Ct. App. 1978); Moore v. Moore, 247 Ga. 243, 275 S.E.2d
334 (1981); Baker v. Baker, 6 Ill. App. 2d 577, 128 N.E.2d 616 (App. Ct. 1955); Davis v.
Davis, 261 Iowa 992, 156 N.W.2d 870 (1968); Wharff v. Wharff, 244 Iowa 496, 56
N.W.2d 1 (1952); Cadwell v. Cadwell, 162 Kan. 552, 178 P.2d 266 (1947).
19 Claughton v. Claughton, 625 So. 2d 853 (Fla. Dist. Ct. App. 1993); Marks v. Marks, 609
So. 2d 710 (Fla. Dist. Ct. App. 1992).
20 Frangesh v. Schwartz, 548 So. 2d 299 (Fla. 1989).
21 Kirkley v. Kirkley, 418 So. 2d 121 (Ala. Civ. App. 1982); Claughton v. Claughton, 625
So. 2d 853 (Fla. Dist. Ct. App. 1993); Timmermann v. Timmermann, 891 S.W.2d 540
(Mo. Ct. App. 1995); Aniballi v. Aniballi, 255 Mont. 384, 842 P.2d 342 (1992).
172
Anatomy of a We
"The parties may make all expenditures from their respective joint checking accoun
In re Truitt, 124 Or. App. 531, 863 P.2d 1287, 128990 (Ct. App. 1993).
"[The] Supreme Court's restraining order enjoins defendant from transferring and w
to withdraw funds for ordinary living expenses and permits him to engage in busin
provided plaintiff is given 30 days' notice of such transactions together with a full a
restraining order."
Capolino v. Capolino, 174 A.D.2d 825, 570 N.Y.S.2d 753, 754 (App. Div. 1991)
the state constitutional22 or other authority23 to award marital property to a nonpar
Rights of Legitimate24 Third-Party Creditors
Divorce courts have denied joinder or intervention to third parties whose rights are
one spouse's creditor on an unsecured loan. 26 Only those creditors with direct inter
joined or intervene.
A trial court may29 or may not30 be able to join a legitimate third-party creditor in
interests of all parties in the property are adjudicated in the divorce litigation.
Equitable Remedies
As courts of equity, judges have an array of powerful remedies at their disposal if th
22 Mallou v. Pay ne & Vending, 750 S.W.2d 251 (Tex. App. 1988).
173
23 Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (Ct. App. 1981); but see Adams v. A
24See Cook v. Cook, 574 A.2d 1353 (Me. 1990) (example of third-party creditor who colluded
25 Venuti v. Venuti, 36 Conn. Supp. 56, 410 A.2d 1012 (Super. Ct. 1979).
26 Poteat v. Poteat, 632 S.W.2d 511 (Mo. Ct. App. 1982).

27 Kirkley v. Kirkley, 418 So. 2d 121 (Ala. Civ. App. 1982); Spencer v. Spencer, 252 Cal. App
also Lee v. Lee, 133 Ariz. 118, 649 P.2d 997 (1982).
28 Schofield v. Fearon, 169 Ga. App. 924, 315 S.E.2d 452 (Ct. App. 1984); Daeschler v. Daesc
Wright, 74 N.C. App. 550, 328 S.E.2d 840 (Ct. App. 1985); Hohenberg v. Hohenberg, 143 B.R
29In re Van Hook, 147 Cal. App. 3d 970, 195 Cal. Rptr. 541 (Ct. App. 1983); In re Marriage of
30 Mussina v. Morton, 657 S.W.2d 871 (Tex. App. 1983).
174
Page 81
unclean hands. The most common scenario is when a spouse transfers marital
property to a third party to defeat an estranged spouse's claim to the property.
Divorce courts have joined those third parties who are not bona fide purchasers
for value, and used several equitable remedies to rectify spousal misconduct.
Injunctive Relief
Sometimes a spouse threatens to conceal marital property, 31 or may have already

hidden marital assets. 32 The innocent spouse may be entitled to injunctive relief
upon a proper showing. 33 The most crucial element is showing that there is a
nonspeculative, identifiable risk of harm;34 though some divorce courts may
grant injunctions without a showing of actual risk of harm, 35 most motions for
injunctive relief fail on this ground. 36
A thoughtful and well-crafted injunction will allow a spouse to conduct personal

and business transactions that are necessary and reasonable. 37 If an injunction is
too restrictive, however, it may be dissolved or remanded on the grounds of
abuse of discretion. 38
31 Krotey a v. Krotey a, 170 A.D.2d 371, 566 N.Y.S.2d 265 (App. Div. 1991); Taft v.
Taft, 156 A.D.2d 444, 548 N.Y.S.2d 726 (App. Div. 1989).
32 Gooding v. Gooding, 602 So. 2d 615 (Fla. Dist. Ct. App. 1992); Sandstrom v. Sandstrom,
565 So. 2d 914 (Fla. Dist. Ct. App. 1990); In re Joerger, 221 Ill. App. 3d 400, 581 N.E.2d
1219 (App. Ct. 1991); Maillard v. Maillard, 211 A.D.2d 963, 621 N.Y.S.2d 715 (App. Div.
1995).
33 A plaintiff must prove that he or she (1) has a certain, ascertainable right in need of
protection, (2) would suffer an irreparable injury absent relief, (3) has no adequate legal
remedy, and (4) is likely to succeed on the merits. Gooding v. Gooding, 602 So. 2d 615
(Fla. Dist. Ct. App. 1992); In re Joerger, 221 Ill. App. 3d 400, 581 N.E.2d 1219 (App. Ct.
1991); In re Grauer, 133 Ill. App. 3d 1019, 479 N.E.2d 982 (App. Ct. 1985); Kennedy v.
Kennedy, 616 N.E.2d 39 (Ind. Ct. App. 1993); Capolino v. Capolino, 174 A.D.2d 825, 570
N.Y.S.2d 753 (App. Div. 1991); Krotey a v. Krotey a, 170 A.D.2d 371, 566 N.Y.S.2d 265
(App. Div. 1991).
175
34 Kennedy v. Kennedy, 616 N.E.2d 39 (Ind. Ct. App. 1993); Franzese v. Franzese, 108
Misc. 2d 154, 436 N.Y.S.2d 979 (Sup. Ct. 1981).
35In re Van Hook, 147 Cal. App. 3d 970, 195 Cal. Rptr. 541 (Ct. App. 1983); Woodrum v.
Woodrum, 590 So. 2d 1093 (Fla. Dist. Ct. App. 1991); Casale v. Casale, 167 A.D.2d 983,
562 N.Y.S.2d 4 (App. Div. 1990); Taft v. Taft, 156 A.D.2d 444, 548 N.Y.S.2d 726 (App.
Div. 1989); Girardi v. Girardi, 140 A.D.2d 486, 528 N.Y.S.2d 397 (App. Div. 1988); see
also Kahn v. Kahn, 147 Misc. 2d 954, 559 N.Y.S.2d 103 (Sup. Ct. 1990).
36In re Ray field, 221 Ill. App. 3d 763, 583 N.E.2d 23 (App. Ct. 1991); In re Schmidt, 118
Ill. App. 3d 467, 455 N.E.2d 123 (App. Ct. 1983); Loderhose v. Loderhose, 216 A.D.2d
275, 627 N.Y.S.2d 453 (App. Div. 1995); Stanton v. Stanton, 211 A.D.2d 781, 621 N.Y.S.2d
676 (App. Div. 1995); Sacks v. Sacks, 181 A.D.2d 727, 581 N.Y.S.2d 80 (App. Div. 1992);
Fakiris v. Fakiris, 177 A.D.2d 540, 575 N.Y.S.2d 924 (App. Div. 1991); Kahn v. Kahn, 147
Misc. 2d 954, 559 N.Y.S.2d 103 (Sup. Ct. 1990); McCarthy v. McCarthy, 156 A.D.2d 346,
548 N.Y.S.2d 298 (App. Div. 1989); Rubin v. Rubin, 99 A.D.2d 774, 472 N.Y.S.2d 24 (App.
Div. 1984).
37See In re Grauer, 133 Ill. App. 3d 1019, 479 N.E.2d 982 (App. Ct. 1985); Capolino v.
Capolino, 174 A.D.2d 825, 570 N.Y.S.2d 753 (App. Div. 1991); In re Truitt, 124 Or. App.
531, 863 P.2d 1287 (Ct. App. 1993).
38 COLO. REV. STAT. 14-10-107(4)(b)(I)(A) (1997); Woodrum v. Woodrum, 590 So.
2d 1093 (Fla. Dist. Ct. App. 1991); In re Ray field, 221 Ill. App. 3d 763, 583 N.E.2d 23
(App. Ct. 1991); MO. ANN. STAT. 452.315 (West Supp. 1998); Fasano-Amon v. Amon,
205 A.D.2d 493, 613 N.Y.S.2d 186 (App. Div. 1994); Kahn v. Kahn, 147 Misc. 2d 954, 559
N.Y.S.2d 103 (Sup. Ct. 1990); see also Woloch v. Foster, 98 Ohio App. 806, 649 N.E.2d 918
(Ct. App. 1995).
176
Page 82
Injunctions and Third Parties
Although divorce courts have no authority to issue injunctions that bind third
parties not named in divorce litigation, a third party who aids a named party in
violating an injunction can be punished for obstruction of justice. 39 There is
case law dealing with third-party conduct in conjunction with spousal
dissipation of assets, 40 but as Brett Turner points out, the general rule as
applied in two instances may not be well reasoned. 41
Injunctions are granted before dissipation only when a spouse threatens to

conceal marital property. As a spouse may not do this, an innocent spouse's
only notice may be that marital assets are missing. Injunctive relief is also hard
to enforce once granted. As a result, state courts can resort to other equitable
remedies to cure a spouse's misconduct.
Adjudicating the Rights of Third Parties
Before a divorce court can adjudicate the rights of third parties in marital
property, the third party must be joined as a party to the litigation. If an
estranged spouse transfers property to a third party to avoid claims against the
property by his or her spouse, the innocent spouse may join the knowing third
party with the argument that the party is in possession of marital property. 42
Two state divorce courts adjudicate the rights of third parties only when the
third party has conspired to defraud one of the spouses in the divorce
litigation. 43 Though the court has no jurisdiction to award property to a third
party, 44 the court may be willing to penalize a spouse for dissipating marital
assets. 45
39 BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 3.05

(1994 & Supp. 1996); In re Staire, 111 N.J. Eq. 285, 162 A. 195 (1932); see
Citibank, N.A. v. Anthony Lincoln-Mercury, Inc., 86 A.D.2d 828, 447 N.Y.S.2d 262
177
(App. Div. 1982).
40 Little v. Superior Court, 180 Ariz. 328, 884 P.2d 214 (Ct. App. 1994); Schnabel v.
Superior Court, 21 Cal. App. 4th 548, 26 Cal. Rptr. 2d 169 (Ct. App. 1993); Snelling &
Snelling v. Goy den, 181 N.J. Super. 479, 438 A.2d 353 (Super. Ct. App. Div. 1981); Bell v.
Roosevelt Sav. Bank, 160 Misc. 2d 728, 611 N.Y.S.2d 87 (Sup. Ct. 1994).
41 Specifically, see the Schnabel and Bell cases cited in note 40. BRETT TURNER,
EQUITABLE DISTRIBUTION OF PROPERTY 3.05 (1994 & Supp. 1996).
42 Schnabel v. Superior Court, 30 Cal. App. 4th 758, 36 Cal. Rptr.2d 677 (Ct. App. 1994);
Feinstein v. Feinstein, 778 S.W.2d 253 (Mo. Ct. App. 1989); Alvino v. Alvino, 659 S.W.2d
266 (Mo. Ct. App. 1983); Solomon v. Solomon, 136 A.D.2d 697, 523 N.Y.S.2d 900 (App.
Div. 1988); In re Marriage of Hollemar, 27 Or. App. 613, 557 P.2d 38 (Ct. App. 1976);
Slatton v. Slatton, 289 S.C. 128, 345 S.E.2d 248 (1986); see also Ruddy v. Ashton, 554 So.
2d 557 (Fla. Dist. Ct. App. 1989), partially overruled by Exeletech v. S.W. Williams, 579
43 Thames v. Thames, 191 Mich. App. 299, 477 N.W.2d 496 (Ct. App.), appeal denied,
439 Mich. 897, 478 N.W.2d 478 (1991); Wiand v. Wiand, 178 Mich. App. 137, 443 N.W.2d
464 (Ct. App. 1989); Smela v. Smela, 141 Mich. App. 602, 367 N.W.2d 426 (Ct. App.
1985); Donahue v. Donahue, 134 Mich. App. 696, 352 N.W.2d 705 (Ct. App. 1984);
Dobbert v. Dobbert, 264 Wis. 641, 60 N.W.2d 378 (1953).
44 Merchant v. Merchant, 130 Mich. App. 566, 343 N.W.2d 620 (Ct. App. 1983).
45 Sands v. Sands, 192 Mich. App. 698, 482 N.W.2d 203 (Ct. App.), rev'd on law, aff'd on
facts, 442 Mich. 30, 497 N.W.2d 493 (1993).
178
Page 83
Rescission
Most states have fraudulent-conveyance statutes, which authorize courts to

rescind conveyances. 46 A divorced spouse with a sufficiently definite claim
against an ex-spouse will qualify as a creditor who can use a fraudulent-
conveyance statute. 47 If a third party has no fraudulent intent, 48 the conveyance
cannot be rescinded; hence, a divorce court can void only those conveyances to
third parties that it deems inequitable upon a finding of actual fraudulent
intent. 49
Fraudulent-conveyance statutes list the factors on which courts may base a

finding of fraudulent intent. Divorce courts often have found fraudulent intent
based upon a mixture of the following facts: conveyances made without adequate
consideration, 50 an innocent spouse forced to sign documents, 51 misrepresention
of the nature of a transaction to the innocent spouse, 52 proof that the transaction
was not at "arm's length,"53 control of the property retained after the transfer, 54
or any transaction being inequitable given the circumstances. 55
Conduct as a Factor in Division of Marital Property56
Some jurisdictions, instead of litigating a third party's rights in property,

recognize a spouse's dissipation of marital assets as a valid factor to consider
46See BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 6.30

(1994 & Supp. 1996).
47 Davis v. Davis, 239 Va. 657, 391 S.E.2d 255 (1990); Wallace v. Wallace, 170 W. Va.
146, 291 S.E.2d 386 (1982); but see Yacobian v. Yacobian, 24 Mass. App. Ct. 946, 508
N.E.2d 1389 (App. Ct. 1987).
48 Walters v. Cory, 596 So. 2d 1146 (Fla. Dist. Ct. App. 1992); McCollum v. McCollum,
102 N.C. App. 347, 401 S.E.2d 773 (Ct. App. 1991).
49 Powers v. Powers, 229 Ga. 450, 192 S.E.2d 268 (1972); Roberts v. Roberts, 226 Ga.
179
203, 173 S.E.2d 675 (1970); Wood v. Wood, 602 A.2d 672 (Me. 1992); Denton v. Denton,
902 S.W.2d 930 (Tenn. Ct. App. 1995).
50 Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled on other grounds by Nass v.
Seaton, 904 P.2d 412 (Alaska 1995); Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986);
Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212 (App. Ct. 1990); Nevitt v. Nevitt, 155
Vt. 391, 584 A.2d 1134 (1990); Clay ton v. Clay ton, 153 Vt. 138, 569 A.2d 1077 (1989); but
see McComas v. McComas, 178 W. Va. 133, 358 S.E.2d 217 (1987).
51 Delany v. Delany, 402 N.W.2d 701 (S.D. 1987).
52In re Frederick, 218 Ill. App. 3d 533, 578 N.E.2d 612 (App. Ct. 1991).
53 Putnam Pension Plan v. Stephenson, 805 S.W.2d 16 (Tex. App. 1991); Davis v. Davis,
239 Va. 657, 391 S.E.2d 255 (1990); Patterson v. Patterson, 167 W. Va. 1, 277 S.E.2d 709
(1981), partially overruled, 172 W. Va. 158, 304 S.E.2d 312 (1983).
54 Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212 (App. Ct. 1990); Febbroriello v.
Febbroriello, 21 Conn. App. 200, 572 A.2d 1032 (App. Ct. 1990); In re Agazim, 176 Ill.
App. 3d 255, 530 N.E.2d 1110 (App. Ct. 1988); In re Flory, 171 Ill. App. 3d 822, 525
N.E.2d 1008 (App. Ct. 1988); Dallas v. Dallas, 670 S.W.2d 535 (Mo. Ct. App. 1984); Weast
v. Weast, 655 S.W.2d 752 (Mo. Ct. App. 1983); In re Ruff, 247 Mont. 486, 807 P.2d 1345
(1991).
55 Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981); Farino v. Farino, 113 Misc. 2d
374, 449 N.Y.S.2d 379 (Sup. Ct. 1982); Leatham v. Leatham, 94 Ohio App. 3d 470, 640
N.E.2d 1210 (Ct. App. 1994); Hough v. Hough, 312 S.C. 344, 440 S.E.2d 387 (1994); Davis
v. Davis, 239 Va. 657, 391 S.E.2d 255 (1990).
56See also BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 6.30
(1994 & Supp. 1996).
180
Page 84
when dividing property. 57 A few jurisdictions, however, may not consider fault
when dividing marital assets. 58 State divorce courts may even use a spouse's
separate property to achieve an equitable result. 59
Although regular living expenses are not considered dissipation, 60 a divorce

court will unequally divide marital property upon a finding that marital assets
were destroyed, 61 squandered or gambled, 62 or otherwise conveyed or hidden in
bad faith by an estranged spouse. 63 However, if both spouses have dissipated
assets, the misconduct of both parties may nullify this factor when the court
divides the marital assets. 64
Purpose of Unequal Division:

Reimbursement or Penalty?
There is a split in the way state courts use unequal division. Most courts
compensate the innocent spouse only for the amount of damages actually
suffered. 65 A few courts, to deter spousal misconduct, are willing to hold that
57 Thomas v. Thomas, 142 Ariz. 386, 690 P.2d 105 (Ct. App. 1984); My ers v.
My ers, 70 Haw. 143, 764 P.2d 1237 (1988); Planert v. Planert, 478 N.E.2d 1251
(Ind. Ct. App. 1985); Sparks v. Sparks, 440 Mich. 141, 485 N.W.2d 893 (1992);
Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988); Smith v. Smith, 314 N.C. 80, 331
S.E.2d 682 (1985); Mauser v. Mauser, 75 N.C. App. 115, 330 S.E.2d 63 (Ct. App.
1985); Belt v. Belt, 398 N.W.2d 737 (N.D. 1987); Erickson v. Erickson, 384 N.W.2d
659 (N.D. 1986); Westbrook v. Westbrook, 5 Va. App. 446, 364 S.E.2d 523 (Ct. App.
1988); Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987); Tay lor v. Tay lor, 5 Va.
App. 436, 364 S.E.2d 244 (Ct. App. 1988); Igo v. Igo, 759 P.2d 1253 (Wy o. 1988);
Dews v. Dews, 632 A.2d 1160 (D.C. 1993); see also Martin v. Martin, 450 N.W.2d
768 (N.D. 1990).
58 Bobb v. Bobb, 552 So. 2d 334 (Fla. Dist. Ct. App. 1989); Sommers v. Sommers, 246
Kan. 652, 792 P.2d 1005 (1990); Boucher v. Boucher, 131 N.H. 377, 553 A.2d 313 (1988).
59 Rutten v. Rutten, 347 N.W.2d 47 (Minn. 1984); In re Marriage of Shelton, 219 Mont.
456, 712 P.2d 782 (1986); Samuelson v. Samuelson, 383 N.W.2d 867 (S.D. 1986).
181
60 Amburn, v. Amburn, 13 Va. App. 661, 414 S.E.2d 847 (Ct. App. 1992). Also see the
section entitled "Valid Marital Purposes," appearing later in this chapter.
61 Gibson v. Gibson, 87 Ohio App. 3d 426, 622 N.E.2d 425 (Ct. App. 1993).
62 Wood v. Wood, 490 So. 2d 248 (Fla. Dist. Ct. App. 1986); In re Norris, 252 Ill. App. 3d
230, 625 N.E.2d 6 (App. Ct. 1992); Conceicao v. Conceicao, 203 A.D.2d 877, 611
N.Y.S.2d 318 (App. Div. 1994); Wilner v. Wilner, 192 A.D.2d 52, 595 N.Y.S.2d 978 (App.
Div. 1993).
63 Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990); Thomas v. Thomas, 142 Ariz.
386, 690 P.2d 105 (Ct. App. 1984); In re Jaeger, 883 P.2d 577 (Colo. Ct. App. 1994); In re
Ebel, 874 P.2d 406 (Colo. Ct. App. 1993); Williams v. Williams, 645 A.2d 1118 (Me.
1994); Murray v. Murray, 853 S.W.2d 417 (Mo. Ct. App. 1993); Pratt v. Pratt, 813 S.W.2d
389 (Mo. Ct. App. 1991); Guneratne v. Guneratne, 214 A.D.2d 871, 625 N.Y.S.2d 354
(App. Div. 1995); Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S.2d 704 (App. Div.
1994); Basile v. Basile, 199 A.D.2d 649, 605 N.Y.S.2d 133 (App. Div. 1993); Baker v.
Baker, 188 A.D.2d 710, 590 N.Y.S.2d 603 (App. Div. 1992); Davis v. Davis, 175 A.D.2d
45, 573 N.Y.S.2d 162 (App. Div. 1991); Albritton v. Albritton, 109 N.C. App. 36, 426 S.E.2d
80 (Ct. App. 1993); Theis v. Theis, 534 N.W.2d 26 (N.D. 1995); Halvorson v. Halvorson,
482 N.W.2d 869 (N.D. 1992); Strickland v. Strickland, 470 N.W.2d 832 (S.D. 1991); Storey
v. Storey, 835 S.W.2d 593 (Tenn. Ct. App. 1992); Falor v. Falor, 840 S.W.2d 683 (Tex. App.
1992); Aster v. Gross, 7 Va. App. 1, 371 S.E.2d 833 (Ct. App. 1988); Underkofler v.
Underkofler, 834 P.2d 1140 (Wy o. 1992).
64In re Toth, 224 Ill. App. 3d 43, 586 N.E.2d 436 (App. Ct. 1991); In re Los, 136 Ill. App.
3d 26, 482 N.E.2d 1022 (App. Ct. 1985); Clark v. Clark, 578 N.E.2d 747 (Ind. Ct. App.
1991); but see In re Weiler, 258 Ill. App. 3d 454, 629 N.E.2d 1216 (App. Ct. 1994).
65 Matthews v. Matthews, 608 So. 2d 1386 (Ala. Civ. App. 1992); Martin v. Martin, 156
Ariz. 452, 752 P.2d 1038 (1988); Drahos v. Rens, 149 Ariz. 248, 717 P.2d 927 (1985);
Romano v. Romano, 632 So. 2d 207 (Fla. Dist. Ct. App. 1994); In re Hanson, 475 N.W.2d
660 (Iowa Ct. App. 1991); Kothari v. Kothari, 255 N.J. Super. 500, 605 A.2d 750 (Super.
Ct. App. Div. 1992); Rothbaum v. Rothbaum, 155 A.D.2d 650, 548 N.Y.S.2d 242 (App. Div.
1989); Halvorson v. Halvorson, 482 N.W.2d 869 (N.D. 1992); Rafidi v. Rafidi, 718 S.W.2d
43 (Tex. App. 1986).
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the amount of an unequal division can be greater than the amount of assets
dissipated. 66
Classification of Property as Marital Property67
Many jurisdictions treat dissipated assets as part of the marital estate, and then
award the asset to the spouse who caused the dissipation when dividing the
marital assets. 68 Some states achieve this result by adjusting the date of
valuation of marital assets. 69 This section discusses the four elements of this
particular remedy.
The First Element
The innocent spouse must show that the asset was lost. 70 Several types of
spousal misconduct have satisfied this requirement. Courts have held marital
property as lost when the owning spouse destroys, 71 hides, 72 or encumbers73
the marital asset. Other types of loss include placing marital assets in a trust, 74
detrimentally affecting a marital asset's fair market value, 75 or failing to make
mortgage or tax payments and then allowing property to be sold at
foreclosure. 76
66 Sands v. Sands, 192 Mich. App. 698, 482 N.W.2d 203 (Ct. App.), rev'd on law,
aff'd on facts, 442 Mich. 30, 497 N.W.2d 493 (1993); Bell v. Bell, 540 N.W.2d 602
(N.D. 1995); In re DeVine, 869 S.W.2d 415 (Tex. App. 1993); but see Hanaway v.
Hanaway, 208 Mich. App. 278, 527 N.W.2d 792 (Ct. App. 1995).
67See also BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 6.30
(1994 & Supp. 1996).
68 Brooks v. Brooks, 677 P.2d 1230 (Alaska 1984); Manaker v. Manaker, 11 Conn. App.
653, 528 A.2d 1170 (App. Ct. 1987); In re Smith, 128 Ill. App. 3d 1017, 471 N.E.2d 1008
(App. Ct. 1984); Dahl v. Dahl, 225 Neb. 501, 406 N.W.2d 639 (1987); Mauser v. Mauser,
75 N.C. App. 115, 330 S.E.2d 63 (Ct. App. 1985); Harrell v. Harrell, 120 A.D.2d 565, 502
N.Y.S.2d 57 (App. Div. 1986); DiLacqua v. DiLacqua, 88 Ohio App. 3d 48, 623 N.E.2d
118 (Ct. App. 1993); Way da v. Way da, 395 Pa. Super. 94, 576 A.2d 1060 (Super. Ct.
183
1990); Johnson v. Johnson, 471 N.W.2d 156 (S.D. 1991); Booth v. Booth, 7 Va. App. 22, 371
S.E.2d 569 (Ct. App. 1988).
69 Cox v. Cox, 882 P.2d 909 (Alaska 1994); In re Hunter, 196 Mont. 235, 639 P.2d 489
(1982); Berish v. Berish, 69 Ohio St. 3d 318, 432 N.E.2d 183 (1982); Spy chalski v.
Spy chalski, 80 Ohio App. 3d 10, 608 N.E.2d 802 (Ct. App. 1992); Shephard v. Shephard,
876 P.2d 429 (Utah Ct. App. 1994); Morgan v. Morgan, 854 P.2d 559 (Utah Ct. App. 1993).
70In re Smith, 128 Ill.App.3d 1017, 471 N.E.2d 1008 (App. Ct. 1984); Delano v. Delano,
501 A.2d 1287 (Me. 1985).
71In re Hebring, 207 Cal. App. 3d 1260, 255 Cal. Rptr. 488 (Ct. App. 1989); In re Ferkel,
260 Ill. App. 3d 33, 632 N.E.2d 1133 (App. Ct. 1994).
72 Elkins v. Elkins, 854 S.W.2d 787 (Ky. Ct. App. 1993).
73 Sharp v. Sharp, 58 Md. App. 386, 473 A.2d 499 (Ct. Spec. App. 1984); Pennock v.
Pennock, 356 N.W.2d 913 (S.D. 1984); but see Trivett v. Trivett, 7 Va. App. 148, 371
S.E.2d 560 (Ct. App. 1988).
74 Kaladic v. Kaladic, 41 Colo. App. 419, 589 P.2d 502 (Ct. App. 1978); Wireman v.
Wireman, 168 Ind. App. 295, 343 N.E.2d 292 (Ct. App. 1976); Earle v. Earle, 13 Mass.
App. Ct. 1062, 434 N.E.2d 1294 (App. Ct. 1982).
75 Smith v. Smith, 124 Idaho 431, 860 P.2d 634 (1993); Hansen v. Hansen, 207 A.D.2d
824, 616 N.Y.S.2d 637 (App. Div. 1994); Beener v. Beener, 422 Pa. Super. 351, 619 A.2d
713 (Super. Ct. 1992).
76In re Hilkovitch, 124 Ill. App. 3d 401, 464 N.E.2d 795 (App. Ct. 1984); In re Siegel, 123
Ill. App. 3d 710, 463 N.E.2d 773 (App. Ct. 1984); In re Hoffman, 94 Ill. 2d 205, 446
N.W.2d 449 (1983); Heins v. Heins, 783 S.W.2d 481 (Mo. Ct. App. 1990); In re McKenzie,
113 Or. App. 684, 833 P.2d 1338 (Ct. App. 1992).
184
Page 86
Further, spouses may77 or may not78 be held liable for failing to earn all
potential income.
The Second Element
The innocent spouse must show that the loss occurred upon or after the
breakdown of the marriage. 79 Though some courts do allow recovery for pre-
breakdown dissipation, 80 most courts hold that the loss must occur during or
after the breakdown of the marriage. 81 However, state courts may differ
concerning when a marriage starts to break down. 82
The Third Element
The innocent spouse must show that the guilty spouse had control of the asset
at the time of the loss. 83 Most courts hold that the innocent spouse need prove
only that the owning spouse had control of an asset, and not that the spouse
intended to dissipate a marital asset. 84 An owning spouse may prove that a loss
was not dissipation if the loss was beyond that spouse's control. 85 How-
77In re Teitz, 238 Ill. App. 3d 965, 605 N.E.2d 670 (App. Ct. 1992); Rosenberg v.
Rosenberg, 64 Md. App. 487, 497 A.2d 485 (Ct. Spec. App. 1985); Gastineau v.
Gastineau, 151 Misc. 2d 813, 573 N.Y.S.2d 819 (Sup. Ct. 1991); In re Thomas, 63
Wash. App. 658, 821 P.2d 1227 (Ct. App. 1991).
78 Weast v. Weast, 655 S.W.2d 752 (Mo. Ct. App. 1983); Tallman v. Tallman, 183 W. Va.
491, 396 S.E.2d 453 (1990); Rivera v. Rivera, 206 A.D.2d 970, 615 N.Y.S.2d 952 (App.
Div. 1994); Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S.2d 704 (App. Div. 1994).
79In re Smith, 128 Ill. App. 3d 1017, 471 N.E.2d 1008 (App. Ct. 1984); Delano v. Delano,
501 A.2d 1287 (Me. 1985); Ross v. Ross, 90 Md. App. 176, 600 A.2d 891 (Ct. Spec. App.),
vacated on other grounds, 327 Md. 101, 607 A.2d 933 (1992).
80 Murray v. Murray, 636 So. 2d 536 (Fla. Dist. Ct. App. 1994); In re Moll, 232 Ill. App.
3d 746, 597 N.E.2d 1230 (App. Ct. 1992); Kothari v. Kothari, 255 N.J. Super. 500, 605
A.2d 750 (Super. Ct. App. Div. 1992); Panhorst v. Panhorst, 301 S.C. 100, 390 S.E.2d 376
(1990); Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (Ct. App. 1994).
185
81 Murray v. Murray, 636 So. 2d 536 (Fla. Dist. Ct. App. 1994); In re O'Neill, 138 Ill. 2d
487, 563 N.E.2d 494 (1990); In re Getautas, 189 Ill. App. 3d 148, 544 N.E.2d 1284 (App.
Ct. 1989); Ross v. Ross, 90 Md. App. 176, 600 A.2d 891 (Ct. Spec. App.), vacated on other
grounds, 327 Md. 101, 607 A.2d 933 (Md. 1992); Wegman v. Wegman, 129 Misc. 2d 968,
494 N.Y.S.2d 933 (Sup. Ct. Nassau County 1985); Panhorst v. Panhorst, 301 S.C. 100, 390
S.E.2d 376 (1990); Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (Ct. App. 1994).
82In re Norris, 252 Ill. App. 3d 230, 625 N.E.2d 6 (App. Ct. 1992); In re Hazel, 219 Ill.
App. 3d 920, 579 N.E.2d 1265 (App. Ct. 1991); In re Rai, 189 Ill. App. 3d 559, 545 N.E.2d
446 (App. Ct. 1989).
83In re Smith, 128 Ill. App. 3d 1017, 471 N.E.2d 1008 (App. Ct. 1984); Delano v. Delano,
501 A.2d 1287 (Me. 1985).
84 Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (App. Ct. 1987); In re Adams,
183 Ill. App. 3d 296, 538 N.E.2d 1286 (App. Ct. 1989); Rock v. Rock, 86 Md. App. 598, 587
A.2d 1133 (Ct. Spec. App. 1991); Josselson v. Josselson, 52 Ohio App. 3d 60, 557 N.E.2d
835 (Ct. App. 1988); Way da v. Way da, 395 Pa. Super. 94, 576 A.2d 1060 (Super. Ct.
1990); Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (Ct. App. 1990); Booth v.
Booth, 7 Va. App. 22, 371 S.E.2d 569 (Ct. App. 1988); see also Kothari v. Kothari, 255 N.J.
Super. 500, 605 A.2d 750 (Super. Ct. App. Div. 1992); but see Robinette v. Robinette, 736
S.W.2d 351 (Ky. Ct. App. 1987).
85In re Parker, 252 Ill. App. 3d 1015, 625 N.E.2d 237 (App. Ct. 1993); In re Pearson, 236
Ill. App. 3d 337, 603 N.E.2d 720 (App. Ct. 1992); In re Rock, 157 Mont. 476, 850 P.2d 296
(1993); Sharp v. Sharp, 116 N.C. App. 513, 449 S.E.2d 39 (Ct. App. 1994); Fexa v. Fexa,
396 Pa. Super. 481, 578 A.2d 1314 (Super. Ct. 1990).
186
Page 87
ever, a spouse can be held accountable for the actions of his or her relatives in
connection with property. 86
The Fourth Element
Finally, the loss must not be incident to the completion of a valid marital
purpose. Most states hold that the spouse in control of the asset has the burden
of proving that the assets were used for a proper purpose. 87 The accused spouse
may88 or may not89 have to prove the valid marital purpose with specific
evidence. A minority of states, however, hold that the innocent spouse must
prove that the marital assets were used for an improper purpose. 90
Valid Marital Purposes
State courts have held that the following types of usages are valid marital
purposes: normal recreation91 and living92 expenses, debts incurred for normal
living expenses, 93 marital business expenses, 94 reasonable property
transactions95
86In re Agazim, 176 Ill. App. 3d 225, 530 N.E.2d 1110 (App. Ct. 1988); Heins v.
Heins, 783 S.W.2d 481 (Mo. Ct. App. 1990); Clay ton v. Clay ton, 153 Vt. 138, 569
A.2d 1077 (1989).
87 Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (App. Ct. 1987); In re Smith,
128 Ill. App. 3d 1017, 471 N.E.2d 1008 (App. Ct. 1984); In re Merry, 213 Mont. 141, 689
P.2d 1250 (1984); Way da v. Way da, 395 Pa. Super. 94, 576 A.2d 1060 (Super. Ct. 1990);
Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (Ct. App. 1990); In re Manry, 60
Wash. App. 146, 803 P.2d 8 (Ct. App. 1991).
88 Zirngibl v. Zirngibl, 237 Ill. App. 3d 1049, 606 N.E.2d 1 (App. Ct. 1991); Szesny v.
Szesny, 197 Ill. App. 3d 966, 557 N.E.2d 222 (App. Ct. 1990); In re Adams, 183 Ill. App.
3d 296, 538 N.E.2d 1286 (App. Ct. 1989); Way da v. Way da, 395 Pa. Super. 94, 576 A.2d
1060 (Super. Ct. 1990).
89In re Teitz, 238 Ill. App. 3d 965, 605 N.E.2d 670 (App. Ct. 1992); In re Phillips, 229 Ill.
App. 3d 809, 594 N.E.2d 353 (App. Ct. 1992); In re Getautas, 189 Ill. App. 3d 148, 544
187
N.E.2d 1284 (App. Ct. 1989); Wilson v. Wilson, 822 S.W.2d 917 (Mo. Ct. App. 1991).
90 Jones v. Jones, 835 P.2d 1173 (Alaska 1992); Delano v. Delano, 501 A.2d 1287 (Me.
1985); In re Stamiatou, 798 S.W.2d 737 (Mo. Ct. App. 1990); see also Jeffcoat v. Jeffcoat,
102 Md. App. 301, 649 A.2d 1137 (Ct. Spec. App. 1994).
91In re Murphy, 259 Ill. App. 3d 336, 631 N.E.2d 893 (App. Ct. 1994); In re Davis, 215 Ill.
App. 3d 763, 576 N.E.2d 44 (App. Ct. 1991); Sinclair v. Sinclair, 837 S.W.2d 355 (Mo. Ct.
App. 1992); In re Stice, 308 Or. 316, 779 P.2d 1020 (1989).
92 Streb v. Streb, 774 P.2d 798 (Alaska 1989); Knecht v. Knecht, 629 So. 2d 883 (Fla. Dist.
Ct. App. 1993); Akers v. Akers, 582 So. 2d 1212 (Fla. Dist. Ct. App. 1991); In re Schmidt,
242 Ill. App. 3d 961, 610 N.E.2d 673 (App. Ct. 1993); In re Sobo, 205 Ill. App. 3d 357, 562
N.E.2d 1083 (App. Ct. 1990); In re Sevon, 117 Ill. App. 3d 313, 453 N.E.2d 866 (App. Ct.
1983); Sinclair v. Sinclair, 837 S.W.2d 355 (Mo. Ct. App. 1992); Doy le v. Doy le, 786
S.W.2d 620 (Mo. Ct. App. 1990); Fornachon v. Fornachon, 748 S.W.2d 705 (Mo. Ct. App.
1988); In re Keedy, 249 Mont. 47, 813 P.2d 442 (1991); Brandt v. Brandt, 176 A.D.2d
1016, 574 N.Y.S.2d 868 (App. Div. 1991); Willis v. Willis, 107 A.D.2d 867, 484 N.Y.S.2d
309 (App. Div. 1985); In re Truitt, 124 Or. App. 531, 863 P.2d 1287 (Ct. App. 1993);
Clements v. Clements, 10 Va. App. 580, 397 S.E.2d 257 (Ct. App. 1990).
93In re Calisoff, 176 Ill. App. 3d 721, 531 N.E.2d 810 (App. Ct. 1988); Roark v. Roark, 694
S.W.2d 912 (Mo. Ct. App. 1985); Dietz v. Dietz, 17 Va. App. 203, 436 S.E.2d 463 (Ct. App.
1993); Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407 (Ct. App. 1993).
94In re Marriage of Pittman, 212 Ill. App. 3d 99, 569 N.E.2d 1278 (App. Ct. 1991); Clark
v. Clark, 578 N.E.2d 747 (Ind. Ct. App. 1991); Markel v. Markel, 197 A.D.2d 934, 602
N.Y.S.2d 477 (App. Div. 1993).
95In re Wild, 774 S.W.2d 543 (Mo. Ct. App. 1989); Stratton v. Stratton, 16 Va. App. 878,
433 S.E.2d 920 (Ct. App. 1993).
188
Page 88
or maintenance, 96 reasonable taxes, 97 or good-faith investments. 98 Further, if

both spouses consent to an unreasonable investment99 or gambling expense, 100
the expenditure can constitute a valid marital purpose.
Third-Party Valid Purposes
Payments to third parties may constitute valid marital expenses. Attorneys' fees
for actions that are the joint responsibility of both spouses are valid marital
expenses. 101 Though gifts to third parties are generally not marital, 102 a
showing that the third party was in serious need may validate a gift. 103 Further,
a consent defense may be implied if the nonspending spouse consistently
acquiesced to similar transfers. 104
Invalid Purposes
State courts have also defined the types of expenditures that are not valid marital
expenses, such as gambling losses105 and bad-faith investments;106
96 March v. March, 435 N.W.2d 569 (Minn. Ct. App. 1989); Berrios v. Berrios, 159
A.D.2d 401, 553 N.Y.S.2d 100 (App. Div. 1990).
97 Roe v. Roe, 402 N.W.2d 829 (Minn. Ct. App. 1987); but see Lenczy cki v. Lenczy cki,
152 A.D.2d 621, 543 N.Y.S.2d 724 (App. Div. 1989); Gruver v. Gruver, 372 Pa. Super.
194, 539 A.2d 395 (Super. Ct. 1988).
98In re Hagshenas, 234 Ill. App. 3d 178, 600 N.E.2d 437 (App. Ct. 1992); In re
Drummond, 156 Ill. App. 3d 672, 509 N.E.2d 707 (App. Ct. 1987); Wassif v. Wassif, 77
Md. App. 750, 551 A.2d 935 (Ct. Spec. App. 1989); Goldman v. Goldman, 248 N.J. Super.
10, 589 A.2d 1358 (Super. Ct. Ch. Div. 1991); In re Holt, 97 Or. App. 192, 776 P.2d 7 (Ct.
App. 1989); Tocco v. Tocco, 523 Pa. Super. 305, 567 A.2d 303 (Super. Ct. 1989); Hauge v.
Hauge, 145 Wis. 2d 600, 427 N.W.2d 154 (Ct. App. 1988); see also Cornell v. Smith, 616
99In re Follansbee, 155 Or. App. 39, 836 P.2d 763 (Ct. App. 1992).
100 Askinazi v. Askinazi, 34 Conn. App. 328, 641 A.2d 413 (App. Ct. 1994); Goldinger v.
189
Goldinger, 17 Fam. L. Rep. (BNA) 1096 (N.Y. Sup. Ct. Nov. 27, 1990); Rosenfield v.
Rosenfield, 597 So. 2d 835 (Fla. Dist. Ct. App. 1992).
101 Akers v. Akers, 582 So. 2d 1212 (Fla. Dist. Ct. App. 1991); Jabri v. Jabri, 193 A.D.2d
782, 598 N.Y.S.2d 535 (App. Div. 1993); Brandt v. Brandt, 176 A.D.2d 1016, 574 N.Y.S.2d
868 (App. Div. 1991); but see Wrona v. Wrona, 592 So. 2d 694 (Fla. Dist. Ct. App. 1991).
102In re Zimmerman, 200 Ill. App. 3d 594, 558 N.E.2d 302 (App. Ct. 1990); In re
LaGarce, 532 S.W.2d 511 (Mo. Ct. App. 1975).
103 Rosenfield v. Rosenfield, 597 So. 2d 835 (Fla. Dist. Ct. App. 1992); Cofer v. Price-
Cofer, 825 S.W.2d 369 (Mo. Ct. App. 1992).
104In re Aud, 142 Ill. App. 3d 320, 491 N.E.2d 894 (App. Ct. 1986); St. Laurent v. St.
Laurent, 583 A.2d 211 (Me. 1990); Decker v. Decker, 17 Va. App. 12, 435 S.E.2d 407 (Ct.
App. 1993); but see In re Lee, 246 Ill. App. 3d 628, 615 N.E.2d 1314 (App. Ct. 1993); In
re Hagshenas, 234 Ill. App. 3d 178, 600 N.E.2d 437 (App. Ct. 1992); Goldman v.
Goldman, 275 N.J. Super. 452, 646 A.2d 504 (Super. Ct. Ch. Div. 1994); Amburn v.
Amburn, 13 Va. App. 661, 414 S.E.2d 847 (Ct. App. 1992).
105In re Morrical, 216 Ill. App. 3d 643, 576 N.E.2d 465 (App. Ct. 1991); In re Sobo, 205
Ill. App. 3d 357, 562 N.E.2d 1083 (App. Ct. 1990); Harrison v. Harrison, 787 S.W.2d 738
(Mo. Ct. App. 1989); Siegel v. Siegel, 241 N.J. Super. 12, 574 A.2d 54 (Super. Ct. Ch. Div.
1990); Wilner v. Wilner, 192 A.D.2d 524, 595 N.Y.S.2d 978 (App. Div. 1993).
106 Roe v. Roe, 311 S.C. 471, 429 S.E.2d 830 (Ct. App. 1993); Maio v. Maio, 151 A.D.2d
463, 542 N.Y.S.2d 253 (App. Div. 1989); see also Booth v. Booth, 7 Va. App. 22, 371 S.E.2d
569 (Ct. App. 1988).
190
Use of Equitable Powers to
At the time a couple purchased a house, Wife's financial condition barred her from
and Mother and Husband took title to the house as joint tenants. After the loan wa
the home was marital property, and Wife and Husband were the equitable owners,
to Wife because Husband's mother was liable on the note and was part owner of th
The court of appeals reversed and remanded, finding legal title is not dispositive in
Once the husband's mother was made party to the divorce action and had the opportunity to a
interest in the home. . . . [T]he essence of equity jurisdiction has been the power of the Chanc
rather than rigidity has distinguished it. The qualities of mercy and practicality have made eq
private needs as well as between competing private claims.
Gore v. Gore, 638 A.2d 672 (D.C. 1994).
excessive living expenses;107 excessive108 or illegal109 recreation expenses; or sepa
Third-Party Invalid Purposes
Most jurisdictions hold that attorneys' fees incurred to end a marriage do not const
107In re Hagshenas, 234 Ill. App. 3d 178, 600 N.E.2d 437 (App. Ct. 1992); In re Zimmerman
App. 1990).
108In re Dunseth, 260 Ill. App. 3d 816, 633 N.E.2d 82 (App. Ct. 1994); In re Murphy, 259 Ill.
Ct. 1994); Barriger v. Barriger, 514 S.W.2d 114 (Ky. 1974).
109 Huntley v. Huntley, 578 So. 2d 890 (Fla. Dist. Ct. App. 1991).
110In re Frey, 258 Ill. App. 3d 442, 630 N.E.2d 466 (App. Ct. 1994).
111In re Marriage of Meisner, 715 P.2d 1273 (Colo. Ct. App. 1985); Raniolo v. Raniolo, 203 A
112 Carney v. Carney, 202 A.D.2d 907, 609 N.Y.S.2d 425 (App. Div. 1994); Grandovic v. Gra
191
113In re Hart, 194 Ill. App. 3d 839, 551 N.E.2d 737 (App. Ct. 1990).
114In re Toth, 224 Ill. App. 3d 43, 586 N.E.2d 436 (App. Ct. 1991); Head v. Head, 168 Ill. App
115In re Olson, 223 Ill. App. 3d 636, 585 N.E.2d 1082 (App. Ct. 1992); In re Osborn, 206 Ill. A
1988).
192
Page 90
well as excessive gifts to children, 116 are also considered nonmarital dissipation.
Miscellaneous Equitable Remedies
State divorce courts have used other equitable remedies that affect third-party
rights in property. Divorce courts may use constructive trusts117 and equitable
liens118 to remedy a spouse's misconduct. Courts may also characterize facts to
find a violation of a fiduciary relationship. 119
Business Entities
Third persons who have a substantial interest in a business before a divorce

court should be joined in divorce litigation, 120 if the person's interest is not
otherwise protected. 121 Sometimes the business entity itself must be joined in
divorce litigation, particularly when a spouse who controls the business stashes
earned personal income within the business. Depending on whether the business
entity is a corporation or a partnership, divorce courts have recourse to differing
remedies.
Corporations
Because corporations are considered separate legal entities for litigation

purposes, a corporation must be party to the divorce action before a divorce
court can determine the final disposition of property rights between estranged
spouses and the corporation. 122 Though a corporation's stock may be consid-
116In re Frey, 258 Ill. App. 3d 442, 630 N.E.2d 466 (App. Ct. 1994); In re Lee, 246
Ill. App. 3d 628, 615 N.E.2d 1314 (App. Ct. 1993); Head v. Head, 168 Ill. App. 3d
697, 523 N.E.2d 17 (App. Ct. 1988); Hollander v. Hollander, 89 Md. App. 156, 597
A.2d 1012 (Ct. Spec. App. 1991); Thames v. Thames, 191 Mich. App. 299, 477
N.W.2d 496 (Ct. App. 1991); Halvorson v. Halvorson, 482 N.W.2d 869 (N.D. 1992);
Guidubaldi v. Guidubaldi, 64 Ohio App. 3d 361, 581 N.E.2d 621 (Ct. App. 1990); In
193
re Howard, 103 Or App. 342, 798 P.2d 683 (Ct. App. 1990).
117 Rasmussen v. VanRiel, 708 P.2d 471 (Colo. Ct. App. 1985); Elkaim v. Elkaim, 176
A.D.2d 116, 574 N.Y.S.2d 2 (App. Div. 1991); In re Marriage of Hollemar, 27 Or. App.
613, 557 P.2d 38 (Ct. App. 1976); Gore v. Gore, 638 A.2d 672 (D.C. 1994).
118 Robinson v. Robinson, 100 Ill. App. 3d 437, 429 N.E.2d 183 (App. Ct. 1981); In re
Marriage of Huth, 437 N.E.2d 1042 (Ind. Ct. App. 1982).
119See Worton v. Worton, 234 Cal. App. 3d 1638, 286 Cal. Rptr. 410 (Ct. App. 1991);
Miller v. Miller, 700 S.W.2d 941 (Tex. App. 1985).
120 Adderhold v. Adderhold, 426 So. 2d 457 (Ala. Civ. App. 1983); but see Marks v. Marks,
609 So. 2d 710 (Fla. Dist. Ct. App. 1992).
121 Cochran v. Cochran, 716 S.W.2d 275 (Mo. Ct. App. 1986); Colclasure v. Colclasure,
892 P.2d 676 (Okla. Ct. App. 1995).
122 Schnabel v. Superior Court, 30 Cal. App. 4th 758, 36 Cal. Rptr. 2d 677 (Ct. App. 1994);
Kalman v. Kalman, 393 So. 2d 641 (Fla. Dist. Ct. App. 1981); Feldman v. Feldman, 390
So. 2d 1231 (Fla. Dist. Ct. App. 1980); Fox v. Fox, 85 Md. App. 448, 584 A.2d 128 (Ct.
Spec. App. 1991); Mehra v. Mehra, 819 S.W.2d 351 (Mo. 1991); Levesque v. Levesque,
773 S.W.2d 220 (Mo. Ct. App. 1989); In re Marriage of Ward, 659 S.W.2d 605 (Mo. Ct.
App. 1983); Anzalone v. Anzalone Bros., Inc., 185 N.J. Super. 481, 449 A.2d 1310 (Super.
Ct. App. Div. 1982); Traut v. Traut, 181 A.D.2d 671, 580 N.Y.S.2d 792 (App. Div. 1992); In
re Melander, 92 Or. App. 342, 758 P.2d 415 (Ct. App. 1988); see also Roe v. Roe, 311 S.C.
471, 429 S.E.2d 830 (Ct. App. 1993).
194
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ered marital property, 123 corporate stock with transfer conditions may require
joinder before it can be divided. 124
State divorce courts may 125 or may not 126 deem earnings retained by a
corporation as marital property. Most courts have gone farther by piercing a
corporation's veil when there is suspect behavior. The divorce court can also
provide equitable remedies to correct the misconduct of a spouse who
fraudulently transfers an interest in a corporation.
Piercing the Corporate Veil
Most divorce courts are hesitant to consider a corporation as a spouse's alter ego
when the spouse is not able to make unilateral decisions regarding the
corporation, 127 or when there is no evidence of fraudulent behavior. 128 However,
divorce courts are willing to disregard a corporate entity that is wholly owned or
controlled by one spouse129 if otherwise recognizing the corporation would lead
to fraud or injustice. 130 A divorce court will also pierce a corporate veil if there
is evidence of commingling of personal and corporate funds. 131
Equitable Remedies
State divorce courts have joined third persons to rescind transfers of interests in
corporations. 132 Divorce courts have also provided relief when, in connection
with a closely held corporation, a spouse dissipates marital assets. 133
123In re Martin, 265 Mont. 95, 874 P.2d 1219 (1994); Merzon v. Merzon, 210
A.D.2d 462, 620 N.Y.S.2d 832 (App. Div. 1995); Siefkas v. Siefkas, 902 S.W.2d 72
(Tex. App. 1995).
124 Hughes v. Hughes, 362 So. 2d 910 (Ala. 1978).
125 Nardini v. Nardini, 414 N.W.2d 184 (Minn. 1987).
126 Duffey v. Duffey, 416 N.W.2d 830 (Minn. Ct. App. 1988); McDiarmid v. McDiarmid,
195
649 A.2d 810 (D.C. 1994).
127 Hoffman v. Hoffman, 676 S.W.2d 817 (Mo. Ct. App. 1984); Thomas v. Thomas, 738
S.W.2d 342 (Tex. App. 1987).
128 Good v. Good, 458 So. 2d 839 (Fla. Dist. Ct. App. 1984).
129 Ly ons v. Ly ons, 340 So. 2d 450 (Ala. Civ. App. 1976); J.D.P. v. F.J.H., 399 A.2d 207
(Del. 1979); Mifflin v. Mifflin, 97 Idaho 895, 556 P.2d 854 (1976); Alpert v. Bertsch, 235
Ill. App. 3d 452, 601 N.E.2d 1031 (App. Ct. 1992); Geittmann v. Geittmann, 126 Ill. App.
3d 470, 467 N.E.2d 297 (App. Ct. 1984); Kline v. Kline, 305 N.W.2d 297 (Mich. Ct. App.
1981); Secor v. Secor, 790 S.W.2d 500 (Mo. Ct. App. 1990); see also In re Marriage of
Stamatiou, 798 S.W.2d 737 (Mo. Ct. App. 1990).
130 Scudder v. Scudder, 485 So. 2d 743 (Ala. Civ. App. 1986); Zisblatt v. Zisblatt, 693
S.W.2d 944 (Tex. App. 1985); see also Goetz v. Goetz, 567 S.W.2d 892 (Tex. App. 1978).
131 Guetzkow v. Guetzkow, 379 N.W.2d 704 (Minn. Ct. App. 1986); Capasso v. Capasso,
102 A.D.2d 796, 477 N.Y.S.2d 155 (App. Div. 1987); Watson v. Watson, 837 P.2d 1 (Utah
Ct. App. 1992); Colman v. Colman, 743 P.2d 782 (Utah 1987); Stainback v. Stainback, 11
Va. App. 13, 396 S.E.2d 686 (Ct. App. 1990); but see S.R. v. S.M.R., 709 S.W.2d 910 (Mo.
Ct. App. 1986).
132 Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212 (App. Ct.), appeal denied, 217
Conn. 803, 584 A.2d 471 (1990); In re Howard, 103 Or. App. 342, 798 P.2d 683 (Ct. App.
1990).
133In re Thomas, 239 Ill. App. 3d 992, 608 N.E.2d 585 (App. Ct. 1993); In re Marriage of
Olson, 223 Ill. App. 3d 636, 585 N.E. 1082 (App. Ct. 1992); In re Thurmond, 888 S.W.2d
269 (Tex. App. 1994).
196
Page 92
Partnerships
Unlike corporations, partnerships in most jurisdictions are not separate legal

entities; instead, the partners own the partnership assets in cotenancy. 134 If a
third person is in a partnership with a divorcing spouse, that third person's
interest may not be disturbed in divorce litigation without joinder. 135
There are many actions a divorce court can take in connection with a
partnership. Although partnership assets are partnership property, 136 earnings
generated by a spouse and retained by a partnership during marriage may be
considered marital property. 137 Partnership interests, 138 or stock in a
partnership, 139 may also be considered marital property; as marital property, a
spouse can be found guilty of its dissipation. 140 In the unique case that a
husband and wife are the sole partners in a partnership, upon the dissolution of
the marriage the partnership may be dissolved according to partnership
principles. 141
Miscellaneous Business Entities
One divorce court has dealt with sole proprietorships, 142 and one jurisdiction
seemed willing to pierce the veil of a nonprofit corporation. 143
Conclusion
Third parties with legitimate interests in marital property will find that they are
adequately protected by state divorce courts. Legitimate third-party rights in
marital property will not be considered by at least four jurisdictions. Most
jurisdictions do not address the rights of third parties in property without
joinder or intervention. Further, these courts may not need to join a third party
if there are alternative means of protection, or if the court can distribute the value
of the marital interest via a monetary award. Bona fide purchasers for value and
197
third-party creditors with a direct interest in divorce litigation will find that their
interests are also protected.
134 Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987).
135In re Weiss, 695 P.2d 778 (Colo. Ct. App. 1985); Schiller v. Schiller, 625 So. 2d 856
(Fla. Dist. Ct. App. 1993).
136In re Paul, 821 P.2d 925 (Colo. Ct. App. 1991); Angle v. Angle, 506 So. 2d 16 (Fla.
Dist. Ct. App. 1987); In re Werries, 247 Ill. App. 3d 639, 616 N.E.2d 1379 (App. Ct. 1993);
Wilen v. Wilen, 61 Md. App. 337, 486 A.2d 775 (Ct. Spec. App. 1985).
137 Swope v. Swope, 112 Idaho 974, 739 P.2d 273 (1987); MacDonald v. MacDonald, 532
A.2d 1046 (Me. 1987); Frost v. Frost, 84 Ohio App. 3d 699, 618 N.E.2d 198 (Ct. App.
1992); Grost v. Grost, 561 S.W.2d 223 (Tex. App. 1977).
138In re Weiss, 695 P.2d 778 (Colo. Ct. App. 1985).
139In re Perlmutter, 225 Ill. App. 3d 362, 587 N.E.2d 609 (App. Ct. 1992).
140 Hollander v. Hollander, 89 Md. App. 156, 597 A.2d 1012 (Ct. Spec. App. 1991).
141 Horton v. Hansen, 722 P.2d 211 (Alaska 1986).

142 Speropulos v. Speropulos, 97 Md. App. 613, 631 A.2d 514 (Ct. Spec. App. 1993).
143 Barineau v. Barineau, 662 So. 2d 1008 (Fla. Dist. Ct. App. 1995).
198
Page 93
Illegitimate third-party interests in marital property may be adversely affected by

divorce court rulings. Third parties may not be enjoined from dissipating
another's marital assets, but in rare instances may be punished for obstructing
justice if they help a spouse dissipate marital assets. Further, a third party's
interest in marital property may be affected by rescission, a constructive trust, or
an equitable lien to bring property back into the marital estate.
Instead of taking actions that adversely affect the property rights of individuals
who do not appear before the divorce court, state courts oftentimes place the
onus on the spouse guilty of dissipation. Divorce courts achieve this by
classifying property as marital, or considering the spousal misconduct when
dividing marital property. These remedies work well when an innocent spouse
cannot trace dissipated property, or when there is no culpable third party.
Business entities may also be third parties. Though corporations are legal
entities that divorce courts must join before dividing corporate assets, a spouse
who controls a corporation must act in bad faith before a state court will pierce
the corporation's veil.
While partnerships are legal entities, a divorce court must join all partners to
divide partnership assets in a divorce proceeding. Other types of partnership
interests, such as stock and retained income, have been considered marital
property for division purposes.
In sum, divorce courts have had to distinguish between third parties who have
legitimate interests deserving of protection, and third parties who aid a spouse
in defrauding the marital estate. As courts of equity, divorce courts can look at
the facts of each case and decide whether a transfer or payment is inequitable
under the circumstances. As the cases in this chapter show, the only individuals
who divorce courts hinder in relation to third-party property interests in divorce
litigation are the spouses who attempt to use a third party, whether a person or
199
business, to conceal or dissipate marital assets.
200
Page 95
Chapter 8
The Effect of Third-Party Privacy Rights Upon Discovery Requests1
The advent of equitable distribution has increased the importance of disclosure

devices in the context of divorce litigation. 2 During divorce proceedings,
spouses are legally obligated to disclose all assets3 and income4 upon a proper
request. Some states formalize this process by requiring spouses to file financial
statements listing their assets and incomes. 5 Sometimes, however, records that
pertain to an estranged spouse's financial status are in the possession of a third
party. The task of obtaining this information is oftentimes placed on the spouse
from whom the information is requested. 6
After exhausting the above remedies for obtaining discovery from an estranged
spouse, the most efficient way to obtain the information requested is directly
from the third party. Although a third party might have valid reasons to refuse to
provide documents and oppose discovery requests, the requesting spouse has an
interest in gathering information directly admissible
1See BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 4.03

(1994 & Supp. 1996) (contains frequently updated information on third-party
document requests).
2 Avery v. Avery, 89 A.D.2d 633, 453 N.Y.S.2d 91 (App. Div.), later appeal, 101 A.D.2d
900, 475 N.Y.S.2d 167 (App. Div. 1982); see also Wells v. Wells, 108 Misc. 2d 501, 437
N.Y.S.2d 622 (Sup. Ct. 1981).
3 Gellman v. Gellman, 160 A.D.2d 265, 553 N.Y.S.2d 705 (App. Div. 1990); Stuart v.
Stuart, 140 Wis. 2d 455, 410 N.W.2d 632 (Ct. App. 1987), aff'd, 143 Wis. 2d 347, 421
N.W.2d 505 (1988); but see Van Ess v. Van Ess, 100 A.D.2d 848, 474 N.Y.S.2d 90 (App.
Div. 1984); Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186 (Super. Ct. 1993).
4 Watson v. Watson, 20 Conn. App. 551, 568 A.2d 1044 (App. Ct. 1990).
201
5 Hutcherson v. Hutcherson, 909 S.W.2d 403 (Mo. Ct. App. 1995); Shafmaster v.
Shafmaster, 138 N.H. 460, 642 A.2d 1361 (1994); N.Y.DOM. REL. LAW 236B(4)
(McKinney Supp. 1998); W. VA. CODE 48-2-33 (1996); State ex rel. Erickson v. Hill,
191 W. Va. 320, 445 S.E.2d 503 (1994); Hamstead v. Hamstead, 357 S.E.2d 216 (W. Va.
1987), overruled on other grounds, Roig v. Roig, 364 S.E.2d 794 (W. Va. 1988); WIS.
STAT. ANN. 767.27 (West Supp. 1997).
6In re Williams, 421 N.W.2d 160 (Iowa Ct. App. 1988); Pleasant v. Pleasant, 97 Md. App.
711, 632 A.2d 202 (Ct. Spec. App. 1993).
202
Discovery and Ch
Citibank gave Husband, an employee, a laptop computer to assist him in fulfilling

laptop computer from the marital residence and gave it to her lawyer. Husband asse
to take the machine. Citibank interpleaded, asserting that the notebook computer b
Wife presented evidence that Citibank did not limit Husband's use of the laptop co
Wife also believed that important information concerning the parties' finances or at
Wife did not act illegally by removing the ''family" computer from the marital resi
The real issue is not who possesses the computer but rather who has access to the computer's
the contents of a file cabinet left in the marital residence. In the same fashion she should have
his finances and personal business records in it. Such material is obviously subject to discover
of the notebook computer.
The court, following the same procedure for inventory of safe-deposit boxes, ordere
originals held at the courthouse, with release subject to a motion to protect Husban
Byrne v. Byrne, 168 Misc. 2d 321, 650 N.Y.S.2d 499 (Sup. Ct. 1996).
at trial, or otherwise calculated to lead to the discovery of evidence that would be a
This chapter surveys how divorce courts balance third-party privacy and mostly in
types of third parties involved, and how third parties with valid privacy concerns c
7In re B & F Towing & Salvage Co., 551 A.2d 45 (Del. 1988); Smith v. Bloom, 506 So. 2d 117
Ey de, 172 Mich. App. 49, 431 N.W.2d 459 (Ct. App. 1988); Susan A. v. Steven J.A., 141 A.D.
157, 617 N.Y.S.2d 767 (App. Div. 1994).
203
Page 97
Business Institutions8
Most of the reported third-party cases involve the financial records of a business
in which one spouse has an interest. 9 The court cannot accurately classify and
value propertyand the nonowner spouse cannot assess the fairness of a settlement
proposalwithout complete documentary information. Many times the
nonowning spouse has no way of obtaining information on valuation and
existence of assets except through the formal discovery process. However, a
third-party business in possession of needed documents may have a genuine
privacy interest in its business affairs, reflected in the documents sought.
Balancing Test
The courts attempt to balance the need for information against the third party's
privacy interests. The privacy interests of the third-party corporation10 or
partnership11 generally do not outweigh the nonowning spouse's need for the
information, even when a spouse's employer is involved. 12
One court13 has listed several factors that are relevant in determining whether
discovery is proper from third parties:
1. The extent of the spouse's interest in the corporation
2. The nature of the information requested
3. Whether the information could be obtained from other sources
4. Whether the corporation is domiciled in the state
Though all jurisdictions may not follow the above formulation precisely, several
204
base allowance or denial of third-party business-record discovery on one or more
of these factors.
8 For periodically updated information on third-party document requests from

businesses, see BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY
4.03 (1994 & Supp. 1996), and Annotation, Spouse's Right to Discovery of Closely
Held Corporation's Records during Divorce Proceedings, 38 A.L.R. 4th 145 (1985
& Supp. 1996).
9 BRETT TURNER, EQUITABLE DISTRIBUTION OF PROPERTY 4.03 (1994 &
Supp. 1996).
10In re B & F Towing & Salvage Co., 551 A.2d 45 (Del. 1988); Ciriacy v. Ciriacy, 431
N.W.2d 596 (Minn. Ct. App. 1988); Gellman v. Gellman, 160 A.D.2d 265, 553 N.Y.S.2d
705 (App. Div. 1990); Briger v. Briger, 110 A.D.2d 526, 487 N.Y.S.2d 756 (App. Div.
1985); see also Schnabel v. Superior Court, 12 Cal. Rptr. 2d 63 (Ct. App. 1992), aff'd in
part, rev'd in part, 5 Cal. 4th 704, 854 P.2d 1117, 21 Cal. Rptr. 2d 200 (1993); Annotation,
Spouse's Right to Discovery of Closely Held Corporation's Records during Divorce
Proceedings, 38 A.L.R. 4th 145 (1985).
11 Ey de v. Ey de, 172 Mich. App. 49, 431 N.W.2d 459 (Ct. App. 1988); Stolowitz v.
Stolowitz, 106 Misc. 2d 853, 435 N.Y.S.2d 882 (Sup. Ct. 1980); Turner v. Montgomery, 836
S.W.2d 848 (Tex. App. 1992).
12 Pleasant v. Pleasant, 97 Md. App. 711, 632 A.2d 202 (Ct. Spec. App. 1993); Colley v.
Colley, 206 A.D.2d 652, 614 N.Y.S.2d 619 (App. Div. 1994).
13In re B & F Towing & Salvage Co., 551 A.2d 45 (Del. 1988).
205
A Suspiciously Close Spo
Husband was the sole officer of his employer and admitted to controlling his own c
sufficient to support disclosure from his nonparty employer.
Lawson v. Lawson, 194 A.D.2d 389, 598 N.Y.S.2d 517 (App. Div. 1993).
Extent of Interest
A spouse is entitled to full discovery of financial records for those businesses in wh

requesting spouse to financial information that relates directly to the relationship b
the opposing spouse has a minority ownership interest. 16
For the trial court to allow discovery when the opposing spouse's ownership intere
spouse and the corporation. 17
Nature of Information
The type of information sought may determine whether the trial court will allow o
for, and relevance of, the business records. 18 Sometimes the
14 Ly tton v. Ly tton, 289 So. 2d 17 (Fla. Dist. Ct. App. 1974); Broida v. Broida, 388 S.W.2d 617
Wilbur v. Wilbur, 89 A.D.2d 686, 454 N.Y.S.2d 36 (App. Div. 1982); Rubin v. Rubin, 87 A.D.2
(Sup. Ct. 1981); Quick v. Quick, 305 N.C. 446, 290 S.E.2d 653 (1982); Vrontikis v. Vrontikis, 11
15 Avery v. Avery, 89 A.D.2d 633, 453 N.Y.S.2d 91 (App. Div.), later appeal, 101 A.D.2d 900
16 Schnabel v. Superior Court, 5 Cal. 4th 704, 854 P.2d 1117, 21 Cal. Rptr. 2d 200 (1993); Ken
N.E.2d 1126 (Ct. App.), later appeal, 422 N.E.2d 289 (Ind. Ct. App. 1981); Ciriacy v. Ciriacy,
N.J. Super. 529, 449 A.2d 1337 (Super. Ct. Ch. Div. 1982); Briger v. Briger, 110 A.D.2d 526, 48
1984); compare Kay e v. Kay e, 102 A.D.2d 682, 478 N.Y.S.2d 324 (App. Div. 1984), with Gol
571, 465 N.Y.S.2d 260 (App. Div. 1983); Wells v. Wells, 108 Misc. 2d 501, 437 N.Y.S.2d 622 (S
Roussos, 106 Misc. 2d 583, 434 N.Y.S.2d 600 (Sup. Ct. 1980); Raved v. Raved, 71 A.D.2d 883,
1988); but see Haskell v. Haskell, 104 A.D.2d 394, 478 N.Y.S.2d 719 (App. Div. 1984).
206
17 The spouse in this case frustrated more direct means of discovery. De La Roche v. De La
N.Y.S.2d 517 (App. Div. 1993); see also Wurtzel v. Wurtzel, 227 A.D.2d 548, 642 N.Y.S.2d 96
18 Rifkind v. Superior Court, 123 Cal. App. 3d 1045, 177 Cal. Rptr. 82 (Ct. App. 1981), partially
re B & F Towing & Salvage Co., 551 A.2d 45 (Del. 1988); see also In re K.F., 232 Mont. 326,
207
The Tale of
Wife sought to value Husband's New Jersey toy-and-novelty distribution business.

Because Husband's brother had recently sold his interest in a "very similar or ident
comparable value. The trial court, based on Wife's request, issued a subpoena.
Husband and Brother had more than just similar businesses; they started out in the
to form his own distribution business in California. Husband and Brother were fier
agreement recognizing he had considerable knowledge of trade secrets, as well as p
information and to cooperate with the company to protect confidentiality.
Brother filed a motion to quash, alleging the requested information was irrelevant a
particularly Husband, would bestow a competitive advantage. Brother also coopera
corporate or financial information.
The New Jersey Superior Court, after discrediting the injunction and the allegation
outweighed the necessity for disclosure. Further, the court found that a protective o
the facts upon which an expert's opinions are based.
Berrie v. Berrie, 188 N.J. Super. 274, 457 A.2d 76 (Super. Ct. Ch. Div. 1983).
court can sever the protected information from the financial information. 19 Privacy
information is involved. 20
Other Sources
While one court did narrow the availability of discovery from a third-party busines
deny discovery from a third party when the integrity of the information produced w
19See By rne v. By rne, 168 Misc. 2d 321, 650 N.Y.S.2d 499 (Sup. Ct. 1996).
208
20 Borg v. Borg, 32 Ill. App. 3d 1075, 337 N.E.2d 391 (App. Ct. 1975); Berrie v. Berrie, 188 N
21 Borg v. Borg, 32 Ill. App. 3d 1075, 337 N.E.2d 391 (App. Ct. 1975).
22 Ciriacy v. Ciriacy, 431 N.W.2d 596 (Minn. Ct. App. 1988).
23 Glickman v. Mesigh, 615 P.2d 23 (Colo. 1980); Thuftin v. Bush, 396 N.W.2d 83 (Minn. Ct. A
209
Valuation of I
Courts may be hesitant to use agreements that provide formulas to calculate the va
below shows that courts may not rely on agreements that parties tender, when a m
Buy-sell agreement: A redemption agreement provided values at which a corporatio

collateral for a loan. The court held that documents controlled by Husband or Acco
was not restricted to various valuation methods provided in the redemption agreem
court." State ex rel. Kuehl v. Baker, 663 S.W.2d 410 (Mo. Ct. App. 1983). See al
see In re Marriage of DeCosse, 936 P.2d 821 (1997).
Partnership agreement: The court limited Wife's proof of value of Husband's partne
partnership agreement provision and case law that construed the same partnership a
To limit defendant's interest to the capital account, which measured a partner's interest on wit
enterprise. . . . [T]he appreciation, during marriage, in the value of defendant's partnership in
account (an agreed value on withdrawal) does not necessarily determine the value of his own
Burns v. Burns, 84 N.Y.2d 369, 643 N.E.2d 80, 618 N.Y.S.2d 761 (1994).
not24 deny discovery from a third party after the opposing spouse concedes the issu
establish.
Limitations on Discovery from Third Parties
There are several ways the trial court can limit the amount of information exposed.
24 Walton v. Walton, 537 So. 2d 658 (Fla. Dist. Ct. App. 1989); Ey ster v. Ey ster, 503 So. 2
210
211
Page 101
institutions sometimes have statutory duties that apply only to the banking
industry.
A trial court may protect information by limiting the scope of discovery when a
spouse has less than a majority interest in a corporation, as well as by limiting
discovery to a specific period when a spouse fails to show the relevance of
corporate records that fall outside the time period. 25 A court may also protect
sensitive information by establishing its confidentiality with a protective order.
Protective Orders
Corporations and other third parties with privacy concerns can protect financial
information supplied to a divorce court through discovery. The third party could
ask the requesting spouse to sign a confidentiality agreement barring the spouse
and the spouse's lawyers from disclosing information to anyone except the other
spouse and the court. A confidentiality agreement of this sort, however, should
not prevent the court's access to information relevant to the equitable
distribution of marital property. 26
If the spouse refuses, the corporation or individual can request that the court
issue a protective order restraining all persons involved from disclosing the
financial information. 27 A business can request in camera inspection of
privileged records. 28 However, the information protected need not be legally
privileged, 29 as protective orders have even been issued to safeguard bank
records when there was no duty to maintain their confidentiality. 30
Financial Institutions
Spouses may try to obtain financial information from a third-party bank. At

common law, the bank-customer relationship in the civil context31 was
212
25 Hoffman v. Hoffman, 676 S.W.2d 817 (Mo. 1984).
26 Snow v. Snow, 209 A.D.2d 399, 618 N.Y.S.2d 442 (App. Div. 1994).
27 Babcock v. Superior Court, 29 Cal. App. 4th 721, 35 Cal. Rptr. 2d 462 (Ct. App. 1994);
GA. CODE ANN. 9-11-26(c) (1993); Ciriacy v. Ciriacy, 431 N.W.2d 596 (Minn. Ct.
App. 1988); Merns v. Merns, 185 N.J. Super. 529, 449 A.2d 1337 (Super. Ct. Ch. Div.
1982); S.D. CODIFIED LAWS 15-6-26(c) (Michie 1997); Shafer v. Bedard, 761 S.W.2d
126 (Tex. App. 1988); VT. R. CIV. P. 26(c); see also Serdaroglu v. Serdaroglu, 209 A.D.2d
604, 622 N.Y.S.2d 51 (App. Div. 1994).
28 Finn v. Finn, 658 S.W.2d 735 (Tex. App. 1983).
29 Peisach v. Antuna, 539 So. 2d 544 (Fla. Dist. Ct. App. 1989).
30 Ey de v. Ey de, 172 Mich. App. 49, 431 N.W.2d 459 (Ct. App. 1988).
31 In the criminal context, the Supreme Court held that financial records could be used in
criminal prosecutions. United States v. Miller, 425 U.S. 435 (1976). Congress responded
by enacting the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., which
deals with the federal government's use of financial information. State legislatures also
have enacted Right to Financial Privacy Acts, which address state governmental use of
financial information.
These state statutes deal with how state regulatory agencies may use financial
information gathered from banks, and do not specifically cover a private financial
institution's duty of confidentiality toward its
213
Page 102
debtor-creditor in nature, and not fiduciary or confidential. 32 Over time,

however, courts have placed a fiduciary duty on banks. 33 Banks in jurisdictions
with a duty of confidentiality are liable for confidentiality breaches, even during
divorce litigation. 34 Although the majority of states may allow banks to make
financial disclosures pursuant to subpoenas duces tecum without much ado, 35 a
minority of state legislatures have enacted statutes that specifically target
financial institutions' disclosures of customer financial information. In addition
to authorizing disclosures in response to legal process, such as subpoenas duces
tecum, these statutes may also provide penalties for improper disclosures. 36
Individual Persons
When the third party is an individual, the privacy interests of the third person
alone are generally not enough to outweigh the requesting spouse's need for the
information. 37 This rule is no different when an ex-spouse's paramour38 or new
spouse39 possesses financial information. A third person's personal information
may also become involved in divorce litigation in two specific ways: to
determine whether a spouse's salary is comparable to other professionals in the
same business, and to prepare examination of an opposing spouse's expert
witnesses.
customers. See ARIZ. REV. STAT. 6-124 (1997); COLO. REV. STAT. 11-2-104
(1998); DEL. CODE ANN. tit. 5, 142 (1997); IDAHO CODE 26-1112 (1997);
IND. CODE 28-11-3-3, 28-11-2-8 (1997); KAN. STAT. ANN. 9-1712 (1996);
KY. REV. STAT. ANN. 287.470 (1998); MD. CODE ANN., FIN. INST. 5-209
(1997); MICH. COMP. LAWS 487.329 (1997); MINN. STAT. 46.07 (1997);
MO. REV. STAT. 361.080 (1997); NEV. REV. STAT 665.075, 665.130 et
seq. (1997); N.H. REV. STAT. ANN. 383:10-b (1996); OKLA. STAT. tit. 6, 208
(1997); WASH. REV. CODE 30.04.075 (1997).
32 Keller v. Frederickstown Sav. Inst., 193 Md. 292, 66 A.2d 924 (1949).
214
33 Burrows v. Superior Court, 13 Cal. 3d 238, 529 P.2d 590, 118 Cal. Rptr. 166 (1974);
Milohnich v. First Nat'l Bank of Miami Springs, 224 So. 2d 759 (Fla. Dist. Ct. App. 1969);
Peterson v. Idaho First Nat'l Bank, 83 Idaho 578, 367 P.2d 284 (1961); Richfield Bank and
Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (1976); Brex v. Smith, 104 N.J. Eq.
386, 146 A. 34 (1929).
34 Burford v. First Nat'l Bank, 557 So. 2d 1147 (La. Ct. App. 1990).
35 CAL. CIV. PRO. CODE 2020(d) (West 1998); COLO. R. CIV. P. 34, 45; IDAHO R.
CIV. P. 34(a), 45(b); In re Marriage of Riemann, 217 Ill. App. 3d 270, 576 N.E.2d 944
(App. Ct. 1991); LA. CODE CIV. PROC. ANN. art. 1354 (West 1998); N.C. GEN. STAT.
1A-1 Rule 45(c) (1997); N.D. R. CIV.P. 34(c); PA.R. CIV. P., Rule 234. 1 et seq.; S.C.R.
CIV. P. 45(b); S. D. CODIFIED LAWS 15-6-34(c) (Michie 1997); UTAH R. CIV. P.34,
45; VT. R. CIV. P. 26(b), 26(c); VA. CODE ANN. 16.1-89 (Michie 1997); WYO. R.
CIV. P. 34; see also NEV. REV. STAT. 52.470 (1997).
36See Appendix H.
37In reEconomou, 224 Cal. App. 3d 1466, 274 Cal. Rptr. 473 (Ct. App. 1990); Rosen v.
Rosen, 655 So. 2d 153 (Fla. Dist. Ct. App. 1995); Harley v. Harley, 157 A.D.2d 916, 550
N.Y.S.2d 177 (App. Div. 1990); but see Zetune v. Jafif-Zetune, 774 S. W. 2d. 387 (Tex.
App. 1989).
38 Smith v. Bloom, 506 So. 2d 1173(Fla. Dist. Ct. App. 1987); but see Babcock v. Superior
Court, 29 Cal. App. 4th 721, 35 Cal. Rptr. 2d 462 (Ct. App. 1994).
39 Harris v. Superior Court, 3 Cal. App. 4th 661, 4 Cal. Rptr. 2d 564 (Ct. App. 1992).
215
Page 103
Third Persons' Salaries
A nonowner spouse most likely will be able to discover the financial aspects of
partnerships in which an estranged spouse has a partnership interest. 40 A spouse
may not be able to obtain records relating to the other spouse's fellow
employees. 41 One jurisdiction has held that a third person's payroll tax returns
are undiscoverable. 42
Witnesses
Parties can discover information regarding each other's lay43 and expert44
witnesses. Because this type of discovery prevents unfair surprise and gives the
parties an opportunity to prepare for each other's contentions, some divorce
courts have held that the parties must notify each other of the subjects on which
their expert witnesses will testify. 45 However, spouses do not need to disclose
that they themselves are testifying at trial. 46
Conclusion
The advent of equitable distribution has increased the importance of disclosure

devices, and sometimes third parties possess information that is relevant to the
equitable distribution of marital property. Before allowing discovery of third-
party information, trial courts determine whether the intrusion is proper given
the circumstances.
The most common document requests from third parties involve business
entities. The degree of interest a spouse has in a business determines the scope
of discovery; arguably, the more control a spouse has over a third-party
business, the more apt he or she is to conceal marital property within the
business. For this same reason, a trial court may want to determine whether a
spouse's salary is comparable to what other professionals are earning in a
216
partnership or clinic. The policy concern underlying these investigations is
40In re Lopez, 38 Cal. App. 3d 93, 113 Cal. Rptr. 58 (Ct. App. 1974); Stern v. Stern,
66 N.J. 340, 331 A.2d 257 (1975); Belichick v. Belichick, 37 Ohio App. 2d 95, 307
N.E.2d 270 (Ct. App. 1973); Finn v. Finn, 658 S.W.2d 735 (Tex. App. 1983).
41 Py ska, Kessler, Massey, Weldon, Catri, Houlton & Douberly, P.A. v. Mullin, 602 So. 2d
955 (Fla. Dist. Ct. App. 1991); Bradstreet v. Taraschi, 529 So. 2d 809 (Fla. Dist. Ct. App.
1988).
42 Schnabel v. Superior Court, 5 Cal. 4th 704, 854 P.2d 1117, 21 Cal. Rptr. 2d 200 (1993).
43 Ramirez v. Ramirez, 873 S.W.2d 735 (Tex. App. 1994).
44 Ashton v. Ashton, 31 Conn. App. 736, 627 A.2d 943 (App. Ct. 1993); Cronin v. Cronin,
131 Misc. 2d 879, 502 N.Y.S.2d 368 (Sup. Ct. 1986).
45In re Hartian, 172 Ill. App. 3d 440, 526 N.E.2d 1104 (App. Ct. 1988); Decker v. Decker,
17 Va. App. 12, 435 S.E.2d 407 (Ct. App. 1993); see also In re Frey, 258 Ill. App. 3d 442,
630 N.E.2d 466 (App. Ct. 1994).
46 Ramirez v. Ramirez, 873 S.W.2d 735 (Tex. App. 1994); Celso v. Celso, 864 S.W.2d 652
(Tex. App. 1993); but see Collins v. Collins, 904 S.W.2d 792 (Tex. App. 1995).
217
Page 104
whether a spouse's income or business interests, which otherwise would be

martial property, are being retained by the corporation or partnership to defeat
the claims of the nonowning spouse. 47 Divorce courts have denied discovery
when proprietary information such as customer lists and unpatented materials
were involved, and when the nonowning spouse failed to show the relevance of
the information. Financial institutions may or may not be liable for disclosing a
customer's financial information, depending on the jurisdiction.
Individuals also may possess financial information that a trial court might need
before calculating the equitable distribution of marital property. Most divorce
courts consistently hold that relevant third-party information is discoverable.
One jurisdiction with a profound concern for state encroachments into an
individual's privacy rights even managed to carve out a narrow exception that
allows access to third-party salary information in divorce proceedings. 48
Another policy concern that prompts state courts to allow discovery of

information pertaining to lay and expert witnesses is the prevention of unfair
surprise during divorce proceedings.
Divorce courts must consider the privacy interests of third parties against the
need for the information. Privacy concerns almost never outweigh the need for
financial information. However, courts can provide third-party corporations and
individuals with orders as a way of protecting information that is supplied to
divorce courts. In this way, courts are able to use third-party information, and
third parties have rights concerning how the information is used and to whom it
is disclosed.
47See Chapter 7; the section entitled, "Business Entities."

48 Schnabel v. Superior Court, 5 Cal. 4th 704, 854 P.2d 1117, 21 Cal. Rptr. 2d 200 (1993).
218
219
Page 105
ALTERNATIVE RELATIONSHIPS AND THE LAW
220
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Chapter 9
Alternatives to Traditional Marriage
This chapter reviews the spectrum of rights1 conferred on couples who choose
not to, or cannot, subscribe to the institution of marriage. While more couples
declare mutual commitment short of the legal status of marriage, the process of
divorce or dissolution is no less real. Heterosexual couples may cohabit as an
alternative to traditional marriage in those states where common-law marriage is
not an option. Same-sex couples, however, generally do not have the option of
marriage available to them within the contiguous United States.
Some individuals are betrothed but then choose to break an engagement. This
chapter reviews the ''breach of promise to marry" cause of action, and surveys the
states that have restricted this common-law cause of action either by statute or
case law. It also presents alternative causes of action that the parties to a broken
engagement might assert, and analyzes the emerging use of these theories by
aggrieved parties to recover damages.
Protection of Rights for the Nontraditional Personal Relationship
This section discusses the rights and responsibilities that may arise for
individuals who cohabit, whether the individuals form a heterosexual couple or
a same-sex couple.
1 Some would rightly argue that along with rights come obligations. However, this
chapter covers only the potential rights of persons who choose an alternative to
traditional marriage.
221
222
Drafting a Cohab
One way for couples to ensure rights and remedies upon termination of a relationsh
of competent legal counsel, below is a general list of "dos and don'ts" for such an a
DO allow one's partner to
For full disclosure, each partner should provide the other with a schedule of assets;
parties had time to consult legal counsel concerning the agreement. This ensures th
DO mention common-la
Heterosexual couples should clarify that the agreement in no way contemplates com
being honored in jurisdictions that do not recognize common-law marriages.
DO clarify the financial rights and resp
The purpose of a cohabitation agreement is ultimately to avoid litigation upon the

addresses appropriate issues to cover in a cohabitation agreement:
Provide for arbitration to resolve disputes about the agreement's terms.

Clarify whether separate property acquired during the relationship should be consid
Determine percentages of interests in property acquired jointly, other than an equal
Handle the disposition of property that is in the name of one partner, when joint or
Account for the use of joint or wholly separate assets or labor for the improvement
If a couple intends to purchase a residence, clarify the percentage of interest in joint
If a couple intends to move into a residence separately owned by one partner, speci
Specify whether it is the couple's intent to pool all income or keep it separate.
Denote whether expenses such as rent or mortgage payments, utilities, groceries, h

223
224
(Continued from previous page)
separate. Further, explain whether the couple will set up a bank account to pay for
Clarify what the nonparent's financial relationship will be toward a partner's child,
Indicate whether each partner is responsible for his or her expenses, or whether one
this obligation will end when the relationship ends.
DON'T mention sexua
As courts will not enforce agreements that essentially contemplate a trade of money
partners consider one another merely as "lovers." For example, heterosexual couple
unplanned pregnancy would be handled.
Cohabitation and Common-Law Marriage
Common-Law Marriage
As the chart in Appendix I shows, a minority of states recognize that nonmarital co

However, most of the states that recognize common-law marriages have expressed
law marriages. Further, the majority of states will give common-law marriages ent
Though states are willing to recognize putative marriages that would be legal but f
marriage as invalid or obsolete. 5 However, there are other alter-
2 Alabama, District of Columbia, Iowa. See also Montana, Oklahoma, Pennsy lvania, and R
3 Strawder v. Zapata Hay nie Corp., 649 So. 2d 554 (La. Ct. App. 1994).
4 Marriage of Blietz, 538 P.2d 114 (Colo. Ct. App. 1975); Lambertini v. Lambertini, 655 So. 2d
Batey, 933 P.2d 551 (Alaska 1997).
225
5See United States v. White, 545 F.2d 1129 (8th Cir. 1976); Hames v. Hames, 163 Conn. 588, 3
Mass. 542, 120 N.E.2d 910 (1954); People v. Stanford, 68 Mich. App. 168, 242 N.W.2d 56 (Ct
(Miss. 1967); Bourelle v. Soo-Crete, Inc., 165 Neb. 731, 87 N.W.2d 371 (1958); Torres v. Torre
34 P.2d 672 (1934); Stern v. Stern, 88 Misc. 2d 860, 389 N.Y.S.2d 265 (Sup. Ct. 1976); Shankle
218 (E.D. Tenn. 1955); Stahl v. Stahl, 136 Vt. 90, 385 A.2d 1091 (1978); In re Van Schaick's E
226
Cohabitation in Itself Is
Man and Woman moved to Tucson in 1969 intending to marry once Man's divorc
represented themselves to the community as husband and wife. Both parties worke
accounts. They acquired a house, two cars, and a number of stock shares, all owne
and a few hundred dollars; Man retained the balance.
Woman brought an action against Man on a theory of breach of an implied partners

inherent authority if it ruled for Woman. Woman appealed, and the court of appeals
The state supreme court vacated and remanded the case. The court wrote that the p
earnings and share equally in certain assets. . . . [T]wo parties may by their course
conduct alone the finder of fact can determine the existence of an agreement."
The supreme court also addressed the agreement being made in the context of a me
the agreement is independent of the living arrangement, but whether the agreement
agreement is supported by consideration and whether that consideration is indepen
Cook v. Cook, 142 Ariz. 573, 691 P.2d 664 (1984), reinforced by Carroll v. Lee, 1
natives a couple may rely upon to ensure recognition from state governments and c
Cohabitation
Cohabiting individuals can rely on contract law to establish legally enforceable rig
6 Levar v. Elkins, 604 P.2d 602 (Alaska 1980); Karoley v. Reid, 223 Ark. 737, 269 S.W.2d 322
L. Rep. (BNA) 2313 (Haw. Cir. Ct. Mar. 19, 1982); Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. A
Sheldon, 109 Mich. App. 204, 311 N.W.2d 747 (Ct. App. 1981); Ty ranski v. Piggins, 44 Mich.
Olson, 256 N.W.2d 249 (Minn. 1977); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981);
A.2d 902 (1979); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980); Beal v. Beal, 282 Or. 1
227
Hennessey, 87 Wash. 2d 550, 554 P.2d 1057 (1976); In re Estate of Thornton, 81 Wash. 2d 72
228
Use of Court's Equitable Powers
Man and Woman divorced after a twenty-year marriage. Shortly after the divorce, M
years, during which time Man and Woman jointly acquired a house and incorporat
Woman, and they separated one day later.
Woman filed a complaint, maintaining no common-law marriage, but requesting th

division, and custody of their minor child. Man maintained there was a common-l
The trial court found there was no common-law marriage and awarded custody to W
the court denied on the grounds that it was powerless to divide the property becaus
The appellate court partially upheld the trial court. Though the appellate court reco
the trial court erred in not dividing the property accumulated during the period Ma
division:
Even though the court found the parties had not remarried and a decree of divorce was denie
authorized to make an equitable division of the property accumulated by the parties during th
Eaton v. Johnston, 9 Kan. App. 2d 63, 672 P.2d 10 (Ct. App.), modified by 235 K
the rules of implied contract7 to establish rights upon the termination of a long-term
one party trades either cohabitation or sex for tangible
7 Marvin v. Marvin, 122 Cal. App. 3d 871, 176 Cal. Rptr. 555 (Ct. App.), aff'd in part, 18 Cal. 3
(1987); Carlson v. Olson, 256 N. W.2d 249 (Minn. 1977); Hudson v. DeLonjay, 732 S. W.2d 92
App. 539, 364 S. E.2d 159 (Ct. App. 1988); Watts v. Watts, 137 Wis. 2d 506, 405 N. W.2d 303
A.2d 662 (D.C. 1984); but see Tarry v. Stewart, 98 Ohio App. 3d 533, 649 N.E.2d 1 (Ct. App.
8 Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986); In re Alexander, 445 So. 2d 836 (Miss. 19
9 Long v. Marino, 212 Ga. App. 113, 441 S.E.2d 475 (Ct. App. 1994); Rehak v. Mathis, 239 Ga
Schwegmann, 441 So. 2d 316 (La. Ct. App. 1983); Rose v. Elias, 177 A.D.2d 415, 576 N.Y.S.2
229
(married man entered nonmeretricious service agreement with another woman).
230
Domestic Part
City enacted ordinances prohibiting sexual-orientation discrimination, establishing

employee benefits to domestic partners of city employees. A state representative, tw
judgment action seeking to have the ordinances declared invalid and unconstitution
The trial court ruled that City exceeded its powers in enacting the domestic partne
City appealed the judgment. The state supreme court affirmed in part and reversed
The Domestic Partnership Ordinances: The court concluded the registry ordinance
by which the city can identify the residents and employees who may exercise jail v
Based on the state constitution, which mandated that cities could not take any acti
court held that City "exceeded its power to provide benefits to employees and their
providing employee benefits to them 'in a comparable manner' . . . as a spouse."
Antidiscrimination Law: The court held that under City's general police power and
(such as alcoholic-beverage licensees and drivers of vehicles for hire), City may ena
Two justices dissented. One judge would have upheld the benefits ordinance on th
have ruled the registry ordinance as invalid on the ground that the ordinance define
private or civil relationships. Further, this judge would have ruled the antidiscrimi
antidiscrimination law.
Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517 (1995). See also Lilly v. City
assets. 10 Further, some states will not enforce contracts that are not in writing. 11
State courts may provide other remedies when a cohabiting couple sepa-
231
10But see Donnell v. Stogel, 161 A.D.2d 93, 560 N. Y.S.2d 200 (App. Div. 1990).
11 Mechura v. McQuillan, 419 N.W.2d 855 (Minn. Ct. App. 1988); Hollom v. Carey, 343 N. W
232
Page 113
rates. 12 A jurisdiction may accomplish this by using its equitable powers, 13 or

by employing partnership law when the facts warrant such treatment. 14 One state
court has held that an unmarried couple may form a union comparable to a
marital family, and uses its rules that govern divorcing couples to guide it in the
dissolution of a cohabiting couple. 15 Further, a court may enforce promises to
support for life, which may be related to a past cohabitation between
heterosexual16 and same-sex17 couples. One word of caution: if money is loaned
during cohabitation, a state court may hold the transfer was a gift, especially if
there is no documentation proving a different intent. 18
Domestic Partnerships
Same-sex couples are unable to gain the legal status of marriage19 or enter
common-law marriage20 because the institution of marriage has traditionally
been defined as a union between a man and a woman. 21 There is a trend to
recognize same-sex partners; private businesses and public municipalities22 have
enacted domestic partnership policies, which provide same-sex partners
benefitssuch as health insurance, family leave, and pensions23on a par with
benefits provided married couples. However, as states are still hesitant to
recognize same-sex partners, 24 state courts have yet to develop case law
regarding how same-sex partner dissolutions might be accomplished. Practi-
12 Courts may even provide protection when there is economic entanglement

separate from an adulterous relationship. Boot v. Bellen, 224 Ga. App. 384, 480
S.E.2d 267 (Ct. App. 1997); Dy e v. Gainey, 320 S.C. 65, 463 S.E.2d 97 (Ct. App.
1995).
13 Beidler v. Beidler, 43 So. 2d 329 (Fla. 1949); Eaton v. Johnston, 9 Kan. App. 2d 63, 672
P.2d 10 (Ct. App. 1984); Lauper v. Harold, 23 Ohio App. 3d 168, 492 N.E.2d 472 (Ct. App.
1985); see also supra note 7. But see Malone v. Odom, 657 So. 2d 1112 (Miss. 1995); In re
Alexander, 445 So. 2d 836 (Miss. 1984).
14 Fernandez v. Garza, 88 Ariz. 214, 354 P.2d 260 (1960); Leek v. Powell, 884 S. W.2d 118
(Tenn. Ct. App. 1994); In re Estate of Thornton, 81 Wash. 2d 72, 499 P.2d 864 (1972).
233
15 Connell v. Francisco, 127 Wash. 2d 339, 898 P.2d 831 (1995); Zion Constr., Inc. v.
Gilmore, 78 Wash. App. 87, 895 P.2d 864 (Ct. App. 1995); Foster v. Thilges, 61 Wash.
App. 880, 812 P.2d 523 (Ct. App. 1991); Warden v. Warden, 36 Wash. App. 693, 676 P.2d
1037 (Ct. App. 1984).
16 Cochran v. Cochran, 56 Cal. App. 4th 1115, 66 Cal. Rptr. 2d 337 (Ct. App. 1997).
17 Posik v. Lay ton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997).
18 Owens v. Moy es, 530 N. W.2d 663 (S.D. 1995).
19 Adams v. Howerton, 486 F. Supp. 1119 (C.D. Cal. 1980), aff'd on other grounds, 673
F.2d 1036 (9th Cir. 1982); Baker v. Nelson, 291 Minn. 310, 191 N. W.2d 185 (1971); Storrs
v. Holcomb, 168 Misc. 2d 898, 645 N. Y.S.2d 286 (Sup. Ct. 1996); Singer v. Hara, 11 Wash.
App. 247, 522 P.2d 1187 (Ct. App. 1974); Dean v. District of Columbia, 653 A.2d 307
(D.C. 1995).
20 DeSanto v. Barnsley, 328 Pa. Super. 181, 476 A.2d 952 (Super. Ct. 1984).
21But see Baehr v. Miike (Lewin), 80 Haw. 341, 910 P.2d 112 (1996).
22See University of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997); City of Atlanta v.
McKinney, 265 Ga. 161, 454 S.E.2d 517 (1995); Lilly v. City of Minneapolis, 527 N. W.2d
107 (Minn. Ct. App. 1995); but see Rutgers Council v. Rutgers Univ., 298 N.J. Super.442,
689 A.2d 828 (Super. Ct. App. Div. 1997).
23See, e.g., San Francisco, Cal., Ordinance 481-96 (effective June 1, 1997);
WASHINGTON, D.C., D.C. CODE 1981 36-1401 et seq. (1997) (Health Care Benefits
Expansion). For more complete information on which cities allow domestic partner
recognition, contact Lambda Legal Defense & Education Fund, National Headquarters,
120 Wall Street, Suite 1500, New York, NY 10005-3904; 212/809-0055. See also SEXUAL
ORIENTATION AND THE LAW 5.04[1][a] (R. Achtenberg & K. Moulding eds.,
1985).
24 See, generally, the Lesbian/Gay Law Notes of the Lesbian & Gay Law Association of
Greater New York, available by calling 212/353-9118.
234
Page 114
tioners should keep in mind, however, that contracts, such as joint property
ownership agreements, 25 will be enforced by courts. 26 State courts may also
apply domestic violence statutes to same-sex couples who live together. 27
Breach of the Marriage Promise and Survival of Antiheartbalm Acts
The breach of the marriage promise was a powerful common-law cause of action,
which compelled men to provide for women who forfeited their virginity in
reliance on a marriage proposal. 28 During the Depression era, state legislatures
began to abolish the breach-of-marriage-promise cause of action. 29 Most of the
cited reasons for abolishment lend support to the argument that antiheartbalm
statutes were products of "a smoke screen of false agitation"30 and "tainted by
sexist attitudes."31 First, the state legislatures focused on the publicity and
excessive awards generated by these suits. The publicity reflected negatively on
the men involved, showed the courts to be biased, and cast the women involved
as undeserving of protection. 32
Second, most antiheartbalm acts were aimed at stifling women who initiated
frivolous lawsuits. 33 Arguably, some women did threaten34 to bring this suit
against men and, faced with the prospect of social exposure and possible
financial ruin, many men may have resolved the matter through monetary
settlements35 or an unwanted marriage. 36
A third reason for the eradication of the heartbalm cause of action was a change
in society's perception of marriage. By the late nineteenth century, marriages
were theoretically based on mutual love and affection, and not treated as an
interfamily business transaction:37
25 Crooke v. Gilden, 262 Ga. 122, 414 S.E.2d 645 (1992).

26 Posik v. Lay ton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997); see also SEXUAL
ORIENTATION AND THE LAW 2.04 (R. Achtenberg & K. Moulding eds., 1985).
235
27 State v. Yaden, No. C-960483, 1997 WL 106343 (Ohio Ct. App. Mar. 5, 1997); State v.
Hadinger, 61 Ohio App. 3d 820, 573 N.E.2d 1191 (Ct. App. 1991).
28 Aronow v. Silver, 223 N.J. Super. 344, 348, 538 A.2d 851, 853 (Super. Ct. Ch. Div.
1987).
29See Appendix J.
30 Neil G. Williams, What To Do When There's No "I Do," 70 WASH. L. REV. 1019, 1032
n.91 (1995) (citing Frederick L. Kane, Heart Balm and Public Policy, 5 FORDHAM L.
REV. 63, 71 (1936)).
(1995).
32 Neil G. Williams, What To Do When There's No "I Do," 70 WASH. L. REV. 1019,
102930 (1995).
33See COLO. REV. STAT. 6 13-20-201 (1973); 740 ILL. COMP. STAT. ANN. 15/1
(West 1997); N. Y. CIV. RIGHTS LAW 80(a) (McKinney 1976); Note, Heartbalm
Statutes and Deceit Actions, 83 MICH. L. REV. 1770, 1776 n.27 (1985).
34See Garmong v. Henderson, 115 Me. 422, 99 A. 177 (1916); Connolly v. Bollinger, 67
W. Va. 30, 67 S.E. 71 (1910).
35 Pavlicic v. Vogtsberger, 390 Pa. 502, 50809, 136 A.2d 127, 130 (1950); HOMER H.
CLARK, JR., HANDBOOK ON THE LAW OF DOMESTIC RELATIONS 1.1, at 3
(1968).
36 Note, Heartbalm Statutes and Deceit Actions, 83 MICH. L. REV. 1770, 1777 (1985).
(1995).
236
Page 115
Engagements are now viewed as important trial periods when couples can
determine if they do indeed want to commit their lives to each other, and during
which the freedom to decline marriage without sanction is essential.38
Indeed, the word "heartbalm" is a derisive term, which indicated that public
policy no longer considered the courts an appropriate place to apply salve to a
broken heart. 39 As evidence, state courts did recognize lack of affection as a
defense to this cause of action. 40 To promote women's economic independence,
early feminists and women legislators also supported antiheartbalm
legislation. 41
Most courts in jurisdictions with antiheartbalm statutes hold that the statutes
bar actions for damages that are direct consequences of the breach, such as
reliance damages42 or emotional harm, 43 but do not affect common-law
principles that allow a party to recover money or other property given in
contemplation of marriage. 44 This includes claims for unjust enrichment, 45 and
for loss sustained in reliance upon a defendant's fraudulent representations. 46
However, some state courts hold that actions for fraud are barred by
antiheartbalm statutes when the basis for the suit is the promise to marry. 47 All
the statutes have withstood constitutional challenges, 48 with the sole exception
of Illinois's antiheartbalm statute. 49
38 Note, Heartbalm Statutes and Deceit Actions, 83 MICH. L. REV. 1770, 1778
(1985).
39 Note, Heartbalm Statutes and Deceit Actions, 83 MICH. L. REV. 1770, 1778 (1985).
40 HOMER H. CLARK, JR., HANDBOOK ON THE LAW OF DOMESTIC RELATIONS

1.3, at 8 n. 19 (1968); see also Annotation, Lack of Affection as Defense to Action for
Breach of Promise, or as Mitigating Damages, 62 A.L.R. 846 (1929).
(1995).
42 Boy d v. Boy d, 228 Cal. App. 2d 374, 39 Cal. Rptr. 400 (Ct. App. 1964); Piccininni v.
Hajus, 180 Conn. 369, 429 A.2d 886 (1980); Hoffman v. Boy d, 698 So. 2d 346 (Fla. Dist.
237
Ct. App. 1997); Waddell v. Briggs, 381 A.2d 1132 (Me. 1978); Bruno v. Guerra, 146 Misc.
2d 206, 549 N. Y.S.2d 925 (Sup. Ct. 1990); Aronow v. Silver, 223 N.J. Super. 344, 538 A.2d
851 (Super. Ct. Ch. Div. 1987); Ferraro v. Singh, 343 Pa. Super. 576, 495 A.2d 946 (Super.
Ct. 1985).
43 Miller v. Ratner, 114 Md. App. 18, 688 A.2d 976 (Ct. Spec. App. 1997); Lambert v.
State, 73 Wis. 2d 590, 243 N. W.2d 524 (1976).
44 Gill v. Shively, 320 So. 2d 415 (Fla. Dist. Ct. App. 1975); Beberman v. Segal, 6 N.J.
Super. 472, 69 A.2d 587 (Super. Ct. Law Div. 1949); Bry an v. Lincoln, 168 W. Va. 556, 285
S.E.2d 152 (1981).
45 Gikas v. Nicholis, 96 N.H. 177, 71 A.2d 785 (1950); Sigrist v. Ly ons, 100 Ohio App. 3d
252, 653 N.E.2d 744 (Ct. App. 1995); Wilson v. Dabo, 10 Ohio App. 3d 169, 461 N.E.2d 8
(Ct. App. 1983).
46 Mack v. White, 97 Cal. App. 2d 497, 218 P.2d 76 (Ct. App. 1950); Norman v. Burks, 93
Cal. App. 2d 687, 209 P.2d 815 (Ct. App. 1949); Piccininni v. Hajus, 180 Conn. 369, 429
A.2d 886 (1980); Tuck v. Tuck, 14 N. Y.2d 341, 200 N.E.2d 554, 251 N. Y.S.2d 653 (1964);
Amsterdam v. Amsterdam, 56 N.Y.S.2d 19 (Sup. Ct. 1945); Turner v. Shavers, 96 Ohio
App. 3d 769, 645 N.E.2d 1324 (Ct. App. 1994); Lampus v. Lampus, 541 Pa. 67, 660 A.2d
1308 (1995).
47 Thibault v. Lalumiere, 318 Mass. 72, 60 N.E.2d 349 (1945); Bressler v. Bressler, 133 N.
Y.S.2d 38 (Mun. Ct. 1954); A.B. v. C.D., 36 F. Supp. 85 (E.D. Pa. 1940), aff'd per curiam,
123 F.2d 1017 (3d Cir. 1941).
48See HOMER H. CLARK, JR., HANDBOOK ON THE LAW OF DOMESTIC
RELATIONS 1.5, at 15 (1968).
49 Zaremba v. Skurdialis, 395 Ill. 437, 70 N.E.2d 617 (1946); Daily v. Parker, 61 F. Supp.
701 (N.D. Ill. 1945).
238
Page 116
Traditional View Emerges
As the first states abolished the breach-of-marriage-promise action, there was a

related rise in the use of diamond engagement rings. 50 Societal mores probably
demanded the use of diamond engagement rings as a bonding device before a
woman would consent to intercourse. 51 Given the purpose of the breach-of-
marriage-promise cause of action, it would follow that if a man called off an
engagement, the woman could keep the engagement ring. 52
Progressive View Emerges
Since the 1940s, there has been change in the economic and social roles of
women in American society. Women now have greater access to education and
employment opportunities and choose to marry later, after establishing their
careers. 53 Further, men and women do not perceive premarital sexual activity as
inimical to a successful marriage. 54 Notwithstanding these changes, engaged
parties still suffer economic and emotional loss as a result of a broken
engagement. Some states that recognize this cause of action provide alternative
causes of action to remedy a broken engagement.
Alternative Causes of Action
This section outlines the recoveries that state courts have allowed for pecuniary
and emotional losses, and discusses how promissory estoppel may be used to
recover damages in lieu of a breach-of-marriage-promise cause of action.
Pecuniary Losses
The most common kind of economic loss resulting from a broken engagement
involves a diamond engagement ring, but engaged parties do exchange other
239
types of real and personal property during an engagement. There are two views
on how gifts should be treated upon the breakup of an engagement: one view is
traditional, and the other more progressive.
Traditional View
The conventional view is based on fault. This means that gifts given during an
engagement may be recovered by the donor if the engagement is broken
50 Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 206 (Spring
1990).
51 Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 212 (Spring 1990).
52 See the later discussion in this chapter under "Pecuniary Losses, Traditional View." See
also Aronow v. Silver, 223 N.J. Super. 344, 348, 538 A.2d 851, 853 (Super. Ct. Ch. Div.
1987).
53 Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 212 (Spring 1990).
54 Margaret F. Brinig, Rings and Promises, 6 J.L. ECON. & ORG. 203, 212 (Spring 1990);
Neil G. Williams, What To Do When There's No "I Do," 70 WASH. L. REV. 1019, 1036
(1995).
240
The Mutual Breakup of an Engage
Man proposed to Woman. Woman postponed the wedding, due to her mother bein
wedding ceremony. Woman was unable to agree to a new wedding date due to her
date, she should return the ring. Woman did not return the ring.
Man called Woman while she was on a business trip. Woman acted ''cool" over th
she was not interested in a romantic relationship. Man asked that the engagement r
engagement ring. The trial court ultimately held that the engagement was broken b
appealed.
The appellate court affirmed: "We agree with the majority view that the donor of an
their return when the engagement is mutually broken."
Vann v. Vehrs, 260 Ill. App. 3d 648, 633 N.E.2d 102 (App. Ct. 1994).
by mutual agreement or by the donee without justification, but if the donor breaks
Once the condition of marriage occurs, the donee is entitled to claim an engagemen
is entitled to keep the property upon the dissolution of the marriage.
55 Simonian v. Donoian, 96 Cal. App. 2d 259, 215 P.2d 119 (Ct. App. 1950); In re Marriage o
Vann v. Vehrs, 260 Ill. App. 3d 648, 633 N.E.2d 102 (App. Ct. 1994); Harris v. Davis, 139 Ill. A
534 (1959); In re Estate of Lowe, 146 Mich. App. 325, 379 N.W.2d 485 (Ct. App. 1985); Wio
Raukhorst, 65 Ohio App. 3d 728, 585 N.E.2d 456 (Ct. App. 1989); Semenza v. Alfano, 443 Pa
Gilliam, 389 S. W.2d 131 (Tex. App. 1965); Spinnell v. Quigley, 56 Wash. App. 799, 785 P.2d
Presents When Marriage Does Not Ensue, 46 A.L.R.3d 578 (1972 & Supp. 1996).
56 Winer v. Winer, 241 N.J. Super. 510, 575 A.2d 518 (Super. Ct. App. Div. 1990); Benkin v. B
App. 1990); Lipton v. Lipton, 134 Misc. 2d 1076, 514 N.Y.S.2d 158 (Sup. Ct. 1986); Frank v. Fr
App. 1992); Hanover v. Hanover, 775 S.W.2d 612 (Tenn. Ct. App. 1989).
57 Pappas v. Pappas, 300 S.C. 62, 386 S.E.2d 301 (Ct. App. 1989).
241
242
Property and Cash Given i
Man, a rancher with a high-school education, met Woman, a law student, at a foot
depositing $4,000 earnest money toward the $40,000 purchase price. Two months
accepted. Man requested the property deed include both his and Woman's name as
Man made a loan to Woman to pay off credit-card debt, with the terms of the loan
"W.L. - F.W.& G." on the check; this was an acronym for "With love, for wedding
off the engagement a year later. Man hoped for reconciliation, which never occurred
interest, title to the property, and return of the ring. The trial court granted Man rel
court affirmed, writing as follows:
There exists a distinction . . . between . . . " heart-balm" actions and the recovery of condition
seeks to assert his equitable common-law right to recover property for which he paid and sole
Fanning v. Iversen, 535 N.W.2d 770 (S.D. 1995).
Progressive View
The minority view flows naturally from the adoption of no-fault divorces in many
issue is whether the condition of marriage has failed. If the condition has failed, the
However, if there is a prior agreement to the contrary, the agreement will govern ho
58 Dixon v. Dixon, 107 Wis. 2d 492, 319 N.W.2d 846 (1982).

59 White v. Finch, 3 Conn. Cir. Ct. 138, 209 A.2d 199 (Cir. Ct. 1964); Gill v. Shively, 320 So. 2d
Parrish, 262 Kan. 926, 942 P.2d 631 (1997); Aronow v. Silver, 223 N.J. Super. 344, 538 A.2d 8
Haber, 119 N.M. 9, 888 P.2d 455 (1994); Gagliardo v. Clemente, 180 A.D.2d 551, 580 N.Y.S.2
v. Gaden, 29 N.Y.2d 80, 272 N.E.2d 471, 323 N.Y.S.2d 955 (1971); McIntire v. Raukhorst, 65 O
1216 (Ct. App. 1984); Lindh v. Surman, 702 A.2d 560 (Pa. Super. Ct. 1997); Fanning v. Iversen
60 Fanning v. Iversen, 535 N.W.2d 770 (S.D. 1995); see also Owens v. Moy es, 530 N.W.2d 66
243
244
Bad Luck for Groom to
Man proposed marriage to Woman three months after they began a social relationsh
marriage license seven days before the wedding, Man came to Woman's home early
marriage.
Woman learned later that at all times during their relationship Man was married. W
infliction of emotional distress, and sought $1,000,000 in actual and punitive dam
was granted an interlocutory appeal.
Breach of Promise to Marry: The state supreme court abolished this cause of action
whose feelings are damaged by a former fianc's decision to cancel a wedding. . . .
and would undoubtedly cause many problems."
Intentional Infliction of Emotional Distress: The court found that although a mere
action, the facts here showed intent and outrageousness: "[T]here are allegations an
and with the knowledge that his actions would cause emotional distress. . . . Brow
time during his relationship with Jackson was he able, legally, to marry her. Yet he
appearance of going through with the wedding. He withdrew his promise only hou
Jackson v. Brown, 904 P.2d 685 (Utah 1995).
Emotional Losses
A plaintiff may be able to recover for emotional anguish and humiliation in those j
such a cause of action is unavailable, a plaintiff may be able to recover under a theo
61 Wildey v. Springs, 840 F. Supp. 1259 (N.D. Ill. 1994), rev'd on other grounds, 47 F.3d 1475
150, 262 N.W.2d 454 (1978); Hutchins v. Day, 269 N.C. 607, 153 S.E.2d 132 (1967); Scanlon
see also Menhusen v. Dake, 214 Neb. 450, 334 N.W.2d 435 (1983); Bradley v. Somers, 283 S.
245
62 Jackson v. Brown, 904 P.2d 685 (Utah 1995).
246
Page 120
Availability of Reliance Damages
In a limited number of jurisdictions, a plaintiff may be able to recover for actions

affirmatively and foreseeably taken in reliance on the marriage promise. 63
Conclusion
The role of marriage in American society is directly reflected in the different

types of legal protection provided to unmarried couples. Common-law marriage,
which confers legal status on heterosexual couples without a formal ceremony, is
available only in a dwindling minority of states. Enforcement of cohabitation
agreements in the courts, as well as other remedies courts provide to cohabiting
couples, are alternatives that protect the interests of unmarried couples.
Although heterosexual couples can enter a domestic partnership, domestic
partnership statutes are the only route same-sex couples can pursue to enjoy the
same rights given to married couples.
Breach-of-marriage-promise causes of action, the resulting antiheartbalm statutes

in the 1930s and 1940s, and the rise in the use of diamond engagement rings
and other gifts all provide insight into the changing institution of marriage.
Twenty-six state legislatures reacted to breach-of-promise actions by enacting
antiheartbalm statutes. Although breach-of-marriage-promise law is still viable
in twenty-three states, causes of action are rare because of changes in the way
society views relationships and marriage. States with and without antiheartbalm
statutes handle engagement breakups in basically the same way, especially
concerning how gifts given in contemplation of marriage should be treated after
an engagement ends.
Ironically, states such as Illinois and Utahwhich have let the breach-of-marriage-
promise action "die out" on its own accordcurrently are doing more to fashion
remedies for aggrieved parties who have terminated an engagement. State courts
247
in jurisdictions without antiheartbalm statutes are hesitant to award hefty
damages64 or even apply breach-of-marriage-promise case law, 65 but are better
able to provide legal protection to aggrieved parties by allowing reliance
damages and damages for emotional loss.
63 Stanard v. Bolin, 88 Wash. 2d 614, 565 P.2d 94 (1977); see also Neil G.
Williams, What To Do When There's No "I Do," 70 WASH. L. REV. 1019, 1059
(1995) (arguing for reliance damages as a way to recover wedding costs).
64 Glass v. Wiltz, 551 So. 2d 32 (La. Ct. App. 1989).
65 Jackson v. Brown, 904 P.2d 685 (Utah 1995).
248
Page 121
Chapter 10
Stepparent Obligations, Custody, and Visitation
This phenomenon about who we werethe intact nuclear family during the first
seven decades of this century and what we have become in the last two decadesthe
"blended family "is a subject of every day life which now faces virtually every
American. . . . There is no escaping the twenty -first century family. "We . . . all
have to work toward changing our internal maps of what a family should be."1
At common law, a stepparent has rights or obligations regarding a stepchild

based only on the stepparent's relationship with the child's biological or legal
parent. 2 This common-law parental preference is becoming more untenable,
given the growing rates of divorce, remarriage, and children born out of
wedlock. 3 There is a current clash between the common-law parental preference
and the logistical needs of the modern-day blended family, especially when the
stepparent is the only parent the child has ever known. 4
This chapter covers the obligations of a stepparent upon divorce, the established
rights of stepparents who seek custody of a stepchild, and the rights of
stepparents seeking visitation rights with stepchildren. It also briefly
1 Paul J. Buser, Introduction, The First Generation of Stepchildren, 25 FAM. L.Q. 1,

2 (Spring 1991).
2 Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990).
3See Bry ce Levine, Divorce and the Modern Family: Providing In Loco Parentis
Stepparents Standing to Sue for Custody of Their Stepchildren in a Dissolution Proceeding,
25 HOFSTRA L. REV. 315, 31617 (Fall 1996); Jennifer Klein Mangnall, Stepparent
Custody Rights after Divorce, 26 SW. U. L. REV. 399, 400 (1997).
4See Simmons v. Simmons, 486 N.W.2d 788 (Minn. Ct. App. 1992); Hickenbottom v.
Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991); Drawbaugh v. Drawbaugh, 436 Pa.
249
Super. 57, 647 A.2d 240 (Super. Ct. 1994); E.H. v. M.H., 512 N.W.2d 148 (S.D. 1994);
Patrick v. By erly, 228 Va. 691, 325 S.E.2d 99 (1985).
250
Situations That Foment a Stepparent's Obligati
1. The stepparent's intent to stand in loco parentis to the child

2. Statutory creation of stepparent obligations
3. A stepparent's promise to support a child
reviews the option of stepchild adoption as a means to ensure a stepparent's rights

divorce. 5
The Evolution of Stepparent Obligations
Traditionally, stepparents had no duty to support a stepchild financially during ma

Some states still follow this doctrine. 7 A stepparent would be obligated to support
when one of the above three situations arose.
In Loco Parentis:
The Cornerstone of Third-Party Rights8
This section traces the development of the in-loco-parentis doctrine. The doctrine s
recognized a stepparent's obligation to support a stepchild financially during the co
also been a helpful conduit for academics, courts, and legislatures that endeavor to
stepparents, but other third partiessuch as grandparents, cohabitants, relatives, and
relationship with a minor child. 9
Common Law
In loco parentis is an equitable doctrine applied by the courts, 10 the outcome of wh

Generally, a stepparent who
5See generally Alan Stephens, Annotation, Parental Rights of Man Who Is Not Biological or A
251
Husband or Cohabitant of Mother When Child Was Conceived or Born, 84 A.L.R.4th 655 (199
6 Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478 (1965); Brummit v. Kentucky, 357 S.W.2d 37 (K
Am., 89 Mich. App. 387, 280 N.W.2d 539 (Ct. App. 1979); Meagher v. Hennepin County Wel
(1974); Hawkins v. Thompson, 210 S.W.2d 747 (Mo. Ct. App. 1948); Miller v. Miller, 97 N.J. 1
93 Misc. 2d 36, 402 N.Y.S.2d 171 (Fam. Ct. 1978); Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y
Department of Inst. & Agencies, 109 N.J. Super. 462, 263 A.2d 796 (Super. Ct. App. Div. 1970
76 (Super. Ct. 1940); Gribble v. Gribble, 583 P.2d 64 (Utah 1978); Niesen v. Niesen, 38 Wis. 2
7 Clifford S. v. Superior Court, 38 Cal. App. 4th 747, 45 Cal. Rptr. 2d 333 (Ct. App. 1995); Dra
647 A.2d 240 (Super. Ct. 1994).
8See Bry ce Levine, Divorce and the Modern Family: Providing In Loco Parentis Stepparents
Stepchildren in a Dissolution Proceeding, 25 HOFSTRA L. REV. 315, 31617 (Fall 1996) (in-d
9 For an overview of the custody and visitation rights of grandparents and other third parties,
10 Atkinson v. Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (Ct. App. 1987); but see D.G. v.
252
No Show
Woman moved in with Man. Six months later, the court finalized her divorce to h
husband's parental rights to their son by unilaterally naming Man her son's guardia
guardianship proceedings. Man did treat Woman's son like his own, and financiall
Woman filed for divorce, then amended her petition arguing that her son was a chil
of three theories of adoption. The court concluded Man had a duty to support her s
The state court of appeals modified the divorce decree by striking the order requirin
any intention of adopting Woman's son. The court also wrote as follows:
[T]o hold otherwise would create enormous policy difficulties. . . . [A] stepparent who tried t
forced to pay support for them in the event of divorce, while a stepparent who refused to hav
having to pay support in the event of a divorce. . . . The fact that Robert had a loving, caring a
Shane following the dissolution of this marriage. To use the relationship to impose a support ob
stepchildren.
In re Marriage of Holcomb, 471 N.W.2d 76 (Iowa Ct. App. 1991).
stands in loco parentis to a child has two characteristics: an intent to establish a nu

responsibility for the child's needs without expecting compensation. 11 If there is no
financial contributions made by a stepparent during marriage when dividing marita
Because it is founded on free will, an in-loco-parentis relationship is terminable up
11See Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (Super. Ct. 1977).
12 Cox v. Cox, 882 P.2d 909 (Alaska 1994); Burgess v. Burgess, 710 P.2d 417 (Alaska 1985);
367 (N.D. 1995).
13Ex parte Lipscomb, 660 So. 2d 991 (Ala. 1994); Franklin v. Franklin, 75 Ariz. 151, 253 P.2d
v. Jackson, 278 A.2d 114 (D.C. 1971).
253
14In re Marriage of Farrell, 67 Wash. App. 361, 835 P.2d 267 (Ct. App. 1992).
254
The Definition of a
"One who, on a day-to-day basis, through interaction, companionship, interplay, a

parent]. This adult becomes an essential focus of the child's life, for he is not only
emotional and psychological needs. . . . The wanted child is one who is loved, va
Carter v. Brodrick, 644 P.2d 850, 853 (Alaska 1982).
not impose the obligations that follow an in-loco-parentis relationship absent a sho
Modern-Day Touchstone
The cornerstone for third-party statutory rights is the development of the psycholog
parentis doctrine, as it finds its legal basis in this doctrine. 17
Statutes Creating Stepparent Obligations
Twenty states, by codifying the in-loco-parentis common law, impose a duty on st

imposes a duty on a stepparent after a divorce, when the in-loco-parentis relationsh
stepparents have no duty to support a former stepchild after divorce. 20 However, a
divorce.
Types of Promises
A duty to support a stepchild after divorce may arise if the stepparent contracts to s
the parent or child relies.
15 Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984); Paquette v. Paquette, 146 Vt. 83, 499 A
976 (Ct. App. 1989).
16 JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (197
255
FAM. ADVOC. (Winter 1979); 12 FAM. ADVOC. (Fall 1989).
17 Carter v. Brodrick, 644 P.2d 850 (Alaska 1982).
18See Appendix K.
19 Laura W. Morgan, The Rights, Duties, and Responsibilities of Stepparents to Their Stepchild
20 Fenn v. Fenn, 174 Ariz. 84, 847 P.2d 129 (Ct. App. 1993); Daniel v. Daniel, 681 So. 2d 849 (
P.2d 113 (Utah 1997).
256
Equitable Est
For estoppel to apply in the divorce law context, the stepparent against whom sup
(3) which he or she had reason to know was false, (4) and upon which the natural p
31 C.J.S. Estoppel 67 (1964), but see Crouse v. Crouse, 552 N.W.2d 413 (S.D
considers the emotional investment a child naturally makes. The following case al
When Man and Woman began dating, Woman was already pregnant. Woman told
previously had an abortion, was set to abort the fetus, but Man assured her he wou
begun dating, at the age of nineteen. Child, who was born three months thereafter,
and baptismal record. Child called Man "Daddy," and called Man's mother "Gramm
Three years later, marital problems led Woman to file for divorce. After a two-year
counterclaimed. The court ordered Man to pay child support. Man moved to amen
family court denied the motion, holding equitable estoppel precluded Man from ref
court affirmed, writing as follows:
In the present case Michael is the only father the child has ever known. . . . It is in the child's b
received the benefits of the child's love and affection not escape the concomitant obligation o
children can be embraced and raised by a person as a parent and then discarded when the pa
Pietros v. Pietros, 638 A.2d 545 (R.I. 1994).
Estoppel
Estoppel occurs in the divorce law context when a stepparent professes a stepchild
21 Clevenger v. Clevenger, 189 Cal. App. 2d 658, 11 Cal. Rptr. 707 (Ct. App. 1961); In re Gal
Quintela v. Quintela, 4 Neb. Ct. App. 396, 544 N.W.2d 111 (Ct. App. 1996); Pietros v. Pietros,
Ct. App. 1976); but see Crouse v. Crouse, 552 N.W.2d 413 (S.D. 1996).
257
258
Page 126
Contracts
A stepparent can also sign a legally enforceable written agreement to support a

stepchild after divorce. 22
Conclusion
Traditionally, stepparents had no duty to support a stepchild during marriage to

the child's natural or legal parent unless the stepparent intended to stand in loco
parentis to the child. Some states have enacted statutes that codify this common
law by requiring stepparents to support a stepchild during marriage. Although
no state statute or case law mandates stepchild support in a post-divorce
scenario, 23 an individual can independently create a duty of support if he or she
makes a legally binding statement. Statements can be binding through equitable
estoppel, or by being written in a contractual agreement.
The in-loco-parentis doctrine is important in its own right. The concept of

psychological parenthood, which is closely related to the in-loco-parentis
doctrine, legitimates the idea that third parties can create relationships of legal
significance with children. The doctrine is an important aspect of stepparent
custody and visitation rights.
Custody
The chart in Appendix L lists state statutes that give stepparents a right to
petition for custody of a minor. This section reviews when stepparents may
assert custodial rights, as parents may challenge a custody petition based on a
stepparent's lack of standing. It then covers the standards state courts use in
determining whether to give custody to a stepparent.
259
Standing
Simply put, a stepparent can exercise only an established legal right to seek
custody. The standing of stepparents is always an issue in a petition for custody.
A parent can waive this standing issue by not raising it in a timely manner. 24
Lawyers for stepparents may be wise to plead standing in custody petitions, as
the natural parent's lawyer will raise standing as an affirmative defense. 25
Standing principles are applied with the utmost precision in the family law
context because of two converging concerns: prevention of attenuated claims
22 Dewey v. Dewey, 886 P.2d 623 (Alaska 1995); Cavanaugh v. deBaudiniere, 1

Neb. Ct. App. 713, 493 N.W.2d 197 (Ct. App. 1992); T. v. T., 216 Va. 867, 224
S.E.2d 148 (1976).
23 A state statute that most closely approaches this is N.C. Gen. Stat. 14-09-09.
24In re Sechrest, 202 Ill. App. 3d 865, 560 N.E.2d 1212 (App. Ct. 1990).
25 Paul J. Buser, Introduction, The First Generation of Stepchildren, 25 FAM. L.Q. 1, 67

(Spring 1991).
260
Different Ways to
''Prima facie r
"Statutorily defined
"An injury, traceable to defendant's con
See Lujan v. Defenders of W
Standing is a potentially confusing issue that stands for many things. The core of s
may, on their own initiative, fashion a remedy when there is an adequate, or prima
define an injury, thereby authorizing hesitant state courts to act.
in cases involving more directly injured people, and restriction of strangers' interfer
should be brought only by persons who have a "prima facie right to custody."27
Biological parents have a constitutionally established, prima facie right to uninterr

recognize the equitable-parent doctrine, 29 or by state statutes. These statutes requir
interest, a stepparent can show a legal duty to support a stepchild, 31 an expressed i
a natural child. 33
Stepparents Who Lack Standing
Courts may rule that stepparents have no standing in divorce actions to request cus
26 Jackson v. Garland, 424 Pa. Super. 378, 622 A.2d 969 (Super. Ct. 1993); Commonwealth
27 Van Coutren v. Wells, 430 Pa. Super. 212, 633 A.2d 1214 (Super. Ct. 1993); Helsel v. Blair C
28See, e.g., Brooks v. Carson, 194 Ga. App. 365, 390 S.E.2d 859 (Ct. App. 1990). Discussed in
29 Atkinson v. Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (Ct. App. 1987); but see D.G. v.
31In re Interest of JWF, 799 P.2d 710 (Utah 1990).
261
32 Dodd v. United States, 76 F. Supp. 991 (D. Ark. 1948); Jackson v. Jackson, 278 A.2d 114 (D.
Super. 391, 547 A.2d 424 (Super. Ct. 1988); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (197
33 Deal v. Deal, 545 So. 2d 780 (Ala. Civ. App. 1989); Brummitt v. Kentucky, 357 S.W.2d 37 (
H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995).
34In re Marriage of Roberts, 202 Ill. App. 3d 865, 649 N.E.2d 1344 (App.Ct. 1995); Jacobs v.
262
Stepparent Custody
The following states explicitly provide for stepparent custody. See Appendix M for states that h
State Authority
Delaware Del. Code Ann. tit. 13, 733
Kansas Kan. Stat. Ann. 60-1610
New Hampshire N.H. Rev. Stat. Ann. 458:17 (VI)
Wisconsin Wis. Stat. 767.24(3)(a)
diction to decide matters concerning children "of the parties" or "of the marriage"
not conferring jurisdiction on the court to hear custody disputes between a steppare
court may further restrict a stepparent's custody petition to instances of dissolution
In states with custody statutes modeled after the Uniform Marriage and Divorce Ac
a cognizable injury only when the child is not living with a natural parent. 39
Once a stepparent establishes the legal basis upon which to petition for custody, th
custody to the stepparent is better than giving custody to the natural parent. 40
35 ALA. CODE 30-3-1 (1996); ALASKA STAT. 25.24.150 (Michie 1997); ARK. CODE
CAL. FAM. CODE 2010 (West 1998); CONN. GEN. STAT. ANN. 46b-58 (West 1997); F
(West 1997); GA. CODE ANN. 19-9-1(a)(1) (1997); HAW. REV. STAT. 580-11 (1997); I
MASS. GEN. LAWS ch. 208, 28 (1997); MICH. COMP. LAWS ANN. 552.16 (West 1997
(1997); N.C. GEN. STAT. 50-11.2 (1997); N.D. CENT. CODE 14-05-22 (1985); OHIO R
(Anderson 1998); OR. REV. STAT. 107.105 (1997); S.C. CODE ANN. 20-3-160 (Law Co
(1997); Bry ce Levine, Divorce and the Modern Family: Providing In Loco Parentis Steppare
Their Stepchildren in a Dissolution Proceeding, 25 HOFSTRA L. REV. 315, 33334 (Fall 1996)
36 Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993); In re Hirenia C., 18 Cal. App. 4th 50
Marriage of Goetz and Lewis, 203 Cal. App. 3d 514, 250 Cal. Rptr. 30 (Ct. App. 1988); Morro
(1974); Meeks v. Garner, 598 So. 2d 261 (Fla. Dist. Ct. App. 1992); Russell v. Russell, 682 N.E
of Hinman, 6 Cal. App. 4th 711, 8 Cal. Rptr. 2d 245 (Ct. App. 1992).
37 Patrell v. Ay ers, 5 Conn. L. Rptr. No. 10,249 (Super. Ct. 1991).
38See Appendix M. Arizona, Colorado, Illinois, Kentucky, Minnesota, Montana, and Washingt
Family: Providing In Loco Parentis Stepparents Standing to Sue for Custody of Their Stepchild
263
HOFSTRA L. REV. 315, 33334 (Fall 1996).
39 Olvera v. Superior Court, 168 Ariz. 556, 815 P.2d 925 (Ct. App. 1991); In re Marriage of N
(App. Ct. 1988); Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979); Pierce v. Pierce, 198 Mont. 2
of C.C.R.S., 872 P.2d 1337 (Colo. Ct. App.). aff'd, 892 P.2d 246 (Colo. 1995); see also Clifford
(1957) (case of parental abandonment); Clark v. Jelinek, 90 Idaho 592, 414 P.2d 892 (1966) (a
40In re Guardianship of Knell, 537 N.W.2d 778 (Iowa 1995).
264
Page 129
The process diagrammed above is the conventional way courts have analyzed
265
whether a stepparent can gain custody of a minor stepchild.
Parental-Right Doctrine
Most states recognize the conventional presumption that a parent has a superior
right to custody vis--vis any third party. 41 In the states following this
traditional majority view, a third party applying for custody must make a factual
showing of extraordinary circumstances;42 state courts have granted custody
41Ex parte D.J., 645 So. 2d 303 (Ala. 1994); Ideker v. Short, 48 Ark. App. 118, 892
S.W.2d 278 (Ct. App. 1995); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933
(1988); Webb v. Webb, 546 So. 2d 1062 (Fla. Dist. Ct. App. 1989); Brooks v. Carson,
194 Ga. App. 365, 390 S.E.2d 859 (Ct. App. 1990); accord In re Custody of
Krause, 111 Ill. App. 3d 604, 444 N.E.2d 644 (App. Ct. 1982); Zvorak v. Beireis,
519 N.W.2d 87 (Iowa 1994); In re Williams, 254 Kan. 814, 869 P.2d 661 (1994);
Greathouse v. Shreve, 891 S.W.2d 387 (Ky. 1995); Burrows v. Sanders, 99 Md.
App. 69, 635 A.2d 82 (Ct. Spec. App. 1994); Straub v. Straub, 209 Mich. App. 77,
530 N.W.2d 125 (Ct. App. 1995); Price v. Howard, 346 N.C. 68, 484 S.E.2d 528
(1997); Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994); Simons v.
Gisvold, 519 N.W.2d 585 (N.D. 1994); Clark v. Bay er, 32 Ohio St. 299 (1877); In re
Perales, 52 Ohio St. 2d 89, 369 N.E.2d 1047 (1977); Ellerbe v. Hooks, 490 Pa. 363,
416 A.2d 512 (1980), but see Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995)
(Pennsy lvania Supreme Court decision that sought to abandon presumption in
favor of parents did not garner a majority ); Frieberg v. Frieberg, 509 N.W.2d 415
(S.D. 1993); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Barstad v. Frazier, 118
Wis. 2d 549, 348 N.W.2d 479 (1984); see also Richard S. Victor et al., Statutory
Review of Third-Party Rights regarding Custody, Visitation and Support, 25 FAM.
L.Q. 19, 21 (Spring 1991).
42 Litz v. Bennum, 111 Nev. 35, 888 P.2d 438 (1995); Karen D. v. Florence D., 210 A.D.2d
165, 620 N.Y.S.2d 358 (App. Div. 1994); Marriage of Hruby, 304 Or. 500, 748 P.2d 57
(1987); Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995); Pacquette v. Pacquette,
146 Vt. 83, 499 A.2d 23 (1985); see also Worden v. Worden, 434 N.W.2d 341 (N.D. 1989);
but see In re Pernice v. Cote, 116 A.D.2d 945, 498 N.Y.S.2d 234 (App. Div. 1986); Ty rrell
v. Ty rrell, 67 A.D.2d 247, 415 N.Y.S.2d 723 (App. Div. 1979).
266
Page 130
of minors to third parties when a parent waived the right to custody, 43 or upon a
finding that a parent is unfit and a third party is fit. 44
However, because it may be hard to prove that a parent is unfit, 45 the courts
adhering to this majority view may relax the "unfitness" standard in a divorce
context, making it more likely for a stepparent to gain custody when the parent's
environment is "unsuitable,"46 or when awarding custody to a parent would be
"detrimental" to the child. 47 The rationale for relaxing the ''unfitness" standard
is that custody is not as dramatic as a total termination of parental rights. 48 One
state does not accept this rationale, however, as such a grant of custody does
terminate a parent's rights. 49
The U.S. Supreme Court has ruled that state legislatures can regulate the family,
given a showing of harm or threat to the child. 50 This stems from the state's
role as protector of its citizens who cannot fend for themselves, or parens
patriae. 51 The state, in its role as parens patriae, determines what is in the "best
interests of the child."52 The psychological-parent model clarifies what is in the
best interest of a child. 53
43In re Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293 (App. Ct. 1989); Sty ck v.
Karnes, 462 N.E.2d 1327 (Ind. Ct. App. 1984).
44 Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990); Martini v. Jefferson,
213 Ga. App. 666, 445 S.E.2d 814 (Ct. App. 1994); Miller v. Rieser, 213 Ga. App. 683, 446
S.E.2d 233 (Ct. App. 1994); In re J.K.F., 174 Ill. App. 3d 732, 529 N.E.2d 92 (App. Ct.
1988); In re Williams, 254 Kan. 814, 869 P.2d 661 (1994); Ruppel v. Lesner, 421 Mich.
559, 364 N.W.2d 665 (1984); In re Hohmann's Petition, 255 Minn. 165, 95 N.W.2d 643
(1959); Milam v. Milam, 376 So. 2d 1336 (Miss. 1979); In re Interest of G.A.W., 867
S.W.2d 704 (Mo. Ct. App. 1993); In re Marriage of Miller, 251 Mont. 300, 825 P.2d 189
(1992); Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992); Rowe v. Rowe, 58 Ohio Law
Abs. 497, 97 N.E.2d 223 (App. Franklin Co. 1950); McDonald v. Wrigley, 870 P.2d 777
(Okla. 1994).
267
45 Laura W. Morgan, The Rights, Duties, and Responsibilities of Stepparents to Their
Stepchildren: Custody and Visitation, 8 DIVORCE LITIG. 185, 191 (Oct. 1996).
46 DEL. CODE ANN. tit. 13, 701(b) (1996); In re Marriage of Allen, 28 Wash. App.
637, 626 P.2d 16 (Ct. App. 1981).
47 CAL. FAM. CODE 3040 (West 1994); Burrows v. Sanders, 99 Md. App. 69, 635 A.2d
82 (Ct. Spec. App. 1994); Simons v. Gisvold, 519 N.W.2d 585 (N.D. 1994); In re Dunn, 79
Ohio App. 3d 268, 607 N.E.2d 81 (Ct. App. 1992); Neely v. Neely, 698 S.W.2d 758 (Tex.
App. 1985); OKLA. STAT. ANN. tit. 10, 21.1 (West 1996); Bailes v. Sours, 231 Va. 96,
340 S.E.2d 824 (1986); see also Merritt v. Merritt, 550 So. 2d 882 (La. Ct. App. 1989).
48In re Sumey, 94 Wash. 2d 757, 621 P.2d 108 (1980).
49In re R.L.L., 258 Ga. 628, 373 S.E.2d 363 (1988).
50 Lassiter v. Department of Social Serv. of Durham County, 452 U.S. 18 (1981); Moore v.
East Cleveland, 431 U.S. 494, 499 (1977); Wisconsin v. Yoder, 416 U.S. 205 (1972);
Prince v. Massachusetts, 321 U.S. 158 (1944); Mey er v. Nebraska, 262 U.S. 390 (1923).
51 Odell v. Lutz, 78 Cal. App. 2d 104, 177 P.2d 628 (Ct. App. 1947); Lehrer v. Davis, 214
Conn. 232, 571 A.2d 691 (1990); Birch v. Birch, 11 Ohio St. 3d 85, 463 N.E.2d 1254
(1984); Clark v. Bay er, 32 Ohio St. 299 (1877); State ex rel. Lisa Friedrich v. Circuit Court
for Dane County, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).
52 Wisconsin v. Yoder, 406 U.S. 205, 234 (1972); see Bailey v. Menzie, 542 N.E.2d 1015,
1020 (Ind. Ct. App. 1989) (for discussion of the constitutional concerns).
53 J.A.L. v. E.P.H., 453 Pa. Super. 78, 682 A.2d 1314, 1320 (Super. Ct. 1996).
268
Glossary
Below are standards courts use to measure a parent's ability to nurture a child befor
way exhaustive, but does provide specific examples of the types of circumstances th
Detrimental:
An alternate way of stating the step 1, then step 3, test. After Father died, noncusto
custody to Stepmother, Father's wife. Mother appealed, arguing the law did not su
determined that custody to a third party was in the best interests of the child. The
detrimental effect on the child.
In re Dunn, 79 Ohio App. 3d 268, 607 N.E.2d 81 (Ct. App. 1992).
Unfit:
This is the traditional standard. There must be an egregious failure on a parent's pa
displacement of or intrusion on parental control would be fault or omission by the
from serious physical harm, illness or death, or the child's right to an education, an
Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2d 277, 387 N.Y.S.2d 821 (1976).
Unsuitable:
Upon Parent and Stepparent's divorce, the court awarded custody of Child, born pr
Parent's attitude was more apathetic and fatalistic to Child's being deaf. Stepparent
training for Child, and raising consciousness on a statewide level to programs for d
Marriage of Allen, 28 Wash. App. 637, 626 P.2d 16 (Ct. App. 1981).
There is a progressive view that awards custody when in the best interest of the ch
involving a natural parent and a long-term psychological (in loco parentis) parent,
54In re B.G., 11 Cal. 3d 679, 523 P.2d 244, 114 Cal. Rptr. 444 (1974); McGaffin v. Roberts, 19
269
Ct. 1990); Lloy d v. Lloy d, 92 Ill. App. 3d 124, 415 N.E.2d 1105 (App. Ct. 1980); Black v. Glaw
270
The Best-Interest-o
Six weeks before marriage, Woman gave birth to Child; both Woman and Man kn
and Woman started dating. However, Woman and Man signed a notarized statemen
Woman married.
Three years later, Man filed for divorce seeking sole or primary custody of the three
to terminate Man's parental rights to Child, alleging both sexual abuse and that M
the other two children and that she be named the domiciliary parent. After submiss
Man. Woman appealed.
The appellate court held the trial court considered what was in the children's best i
favorable. Woman never had meaningful employment until she was ordered by the
her grandfather's house, and would have to commute twenty-six miles to a baby-si
at night. His trailer, which had three bedrooms and a large yard, was two miles fro
summer when school was out.
The court of appeals also found no abuse of discretion in awarding Child to Man. T
the only father Child had ever known, and that Child was raised with his half-siste
by Woman or her family. The court also wrote the following:
If Justin were the only child . . . , the law would require us to award primary custody to Wend
demonstrated severe misconduct, such as a history of ongoing drug abuse and vociferous act
involve a single child or full-blooded siblings. This case differs because the custody of half-si
set of facts and the relationships involved, with the paramount goal of reaching a decision tha
McKinley v. McKinley, 631 So. 2d 45 (La. Ct. App. 1994).
271
Page 133
sider only what is in a child's best interest, 55 as an award of custody does not
terminate a parent's rights. 56 Further, the preference for the natural parent who
has never been emotionally available to a child conflicts with what is in the best
interest of the child. 57
Two jurisdictions have held it unconstitutional to apply the best-interest-of-the-

child standard in custody battles between a natural parent and a person unrelated
to the child. 58
Conclusion
More than half the states now recognize the right of a stepparent to seek custody
of a stepchild upon the dissolution of a marriage. 59 Stepparents can petition for
custody only if they have standing, or a legal basis, through which they can
seek access to the courts. Most state statutes narrowly define when a stepparent
can seek custody. The majority of state statutes give courts jurisdiction over the
"children of the marriage" only; these statutes have effectively barred stepparents
from gaining custody of stepchildren because these children fall outside this
definition. Another type of statute provides stepparents the opportunity to seek
custody of a stepchild, but only when the child is not currently living with a
natural or legal parent.
Once a stepparent establishes standing, he or she must show why a grant of

custody to the stepparent is a better choice than granting custody to the parent.
Traditionally, a third party must show that the parent is unfit and the third party
is fit, and then that the grant of custody is in the best interest of the child.
However, as courts have become accustomed to the view that an in loco parentis
(long-term psychological) parent is more important to children than a biological
parent, courts may require a long-term psychological parent to show only that
the grant of custody is in the best interest of the child.
272
55 Carter v. Brodrick, 644 P.2d 850 (Alaska 1982); In re Custody of C.C.R.S., 872
P.2d 1337 (Colo. Ct. App.), aff'd, 892 P.2d 246 (Colo. 1995); CONN. GEN. STAT.
ANN. 46b-57 (West 1995); HAW. REV. STAT. 571-46(2) (Supp. 1995);
Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989); Cebrzy nski v.
Cebrzy nski, 63 Ill. App. 3d 66, 379 N.E.2d 713 (App. Ct. 1978); McKinley v.
McKinley, 631 So. 2d 45 (La. Ct. App. 1994); In re Stewart, 602 So. 2d 212 (La. Ct.
App. 1992); N.H. REV. STAT. ANN. 458:17 (1992 & Supp. 1995); Stanley D. v.
Deborah D., 124 N.H. 138, 467 A.2d 249 (1983); Todd v. Sheridan, 268 N.J. Super.
387, 633 A.2d 1009 (Super. Ct. App. Div. 1993); Palermo v. Palermo, 164 N.J.
Super. 492, 397 A.2d 349 (Super. Ct. App. Div. 1978); Simons v. Gisvold, 519
N.W.2d 585 (N.D. 1994); In re Dunn, 79 Ohio App. 3d 268, 607 N.E.2d 81 (Ct.
App. 1992); Karner v. McMahon, 433 Pa. Super. 290, 640 A.2d 926 (Super. Ct.
1994); Commonwealth ex rel. Husack v. Husack, 273 Pa. Super. 192, 417 A.2d 233
(Super. Ct. 1979); but see In re Marriage of Osborne, 21 Kan. App. 2d 374, 901
P.2d 12 (Ct. App. 1995).
56 Stanley D. v. Deborah D., 124 N.H. 138, 467 A.2d 249 (1983).
57See Gorman v. Gorman, 400 So. 2d 75 (Fla. Dist. Ct. App. 1981); Fisher v. Fisher, 99
Nev. 762, 670 P.2d 572 (1983).
58In re A.R.A., 277 Mont. 66, 919 P.2d 388 (1996); McQuade v. McQuade, 124 Or. App.
243, 862 P.2d 545 (Ct. App. 1993).
59See Appendix M.
273
Page 134
Visitation
The chart in Appendix L outlines the statutory rights given to stepparents. This
section covers the case law pertaining to the rights of stepparents, and the
constitutional grounds upon which parents have traditionally challenged
stepparent visitation rights.
Visitation Statutes
Nine states have statutes that explicitly authorize stepparent visitation. 60 Twelve
states have statutes that implicitly condone stepparent visitation;61 there is a
body of case law that confers visitation rights on stepparents via their in-loco-
parentis status. 62 The standard provided in the statutes, 63 or adopted by the
courts, 64 is the best-interest-of-the-child standard. Additionally, a court may
enforce stipulated visitation rights of a stepparent as preserved in a dissolution
action. 65
Visitation Case Law
States that do not have visitation statutes may also award stepparents visitation
using the best-interest-of-the-child standard. 66 Some state courts are more
restrictive, holding stepparents can petition for visitation only when
extraordinary circumstances exist. 67 Further, some state courts have held that
60 California, Illinois, Kansas, New Hampshire, Ohio, Oregon, Tennessee,

Virginia, and Wisconsin, In re Shofner, 137 Or. App. 543, 905 P.2d 268 (Ct. App.
1995); In re Sorenson, 138 Or. App. 80, 906 P.2d 838 (Ct. App. 1995). See
Appendix L. See also Laura W. Morgan, The Rights, Duties, and Responsibilities of
Stepparents to Their Stepchildren: Custody and Visitation, 8 DIVORCE LITIG. 185,
187, 19498 (Oct. 1996).
61 Alaska, Connecticut, Hawaii, Louisiana, Maine, Michigan, Minnesota, Nebraska, New
York, Texas, Washington, and West Virginia. See Appendix L. See also Laura W. Morgan,
274
The Rights, Duties, and Responsibilities of Stepparents to Their Stepchildren: Custody and
Visitation, 8 DIVORCE LITIG. 185, 187, 19498 (Oct. 1996).
62 Francis v. Francis, 654 N.E.2d 4 (Ind. Ct. App. 1995); Simmons v. Simmons, 486
N.W.2d 788 (Minn. Ct. App. 1992); Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879
(Super. Ct. 1977); Gribble v. Gribble, 583 P.2d 64 (Utah 1978).
63See OHIO REV. CODE ANN. tit. 31, 3109.05.1(B)(1) (Anderson 1996); TENN.
CODE ANN. 36-6-303(a) (1996).
64 Temple v. Mey er, 208 Conn. 404, 544 A.2d 629 (1988); Hickenbottom v. Hickenbottom,
239 Neb. 579, 477 N.W.2d 8 (1991); In re Shofner, 137 Or. App. 54, 905 P.2d 268 (Ct.
App. 1995); Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993).
65 Simmons v. Simmons, 486 N.W.2d 788 (Minn. Ct. App. 1992).
66 Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990); Carter v. Broderick,
644 P.2d 850 (Alaska 1982); Bry an v. Bry an, 132 Ariz. 353, 645 P.2d 1267 (Ct. App.
1982); In re Marriage of Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992); Howell v. Gossett,
234 Ga. 145, 214 S.E.2d 882 (1975); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611
(1989); Caban v. Healey, 634 N.E.2d 540 (Ind. Ct. App. 1994); Collins v. Gilbreath, 403
N.E.2d 921 (Ind. Ct. App. 1980); Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979); Evans v.
Evans, 302 Md. 334, 488 A.2d 157 (1985); Klipstein v. Zalewski, 230 N.J. Super. 567, 553
A.2d 1384 (Super. Ct. Ch. Div. 1988); Rhinehart v. Nowlin, 111 N.M. 319, 805 P.2d 88 (Ct.
App. 1990); Looper v. McManus, 581 P.2d 487 (Okla. 1978); Commonwealth ex rel.
Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (Super. Ct. 1978); Spells v. Spells, 250
Pa. Super. 168, 378 A.2d 879 (Super. Ct. 1977); Gribble v. Gribble, 583 P.2d 64 (Utah
1978); Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989).
67 Quinn v. Mouw-Quinn, 1996 S.D. 103, 522 N.W. 2d 843 (1996).
275
Page 135
the courts cannot assume jurisdiction over a stepchild in a divorce proceeding,

or that stepparents cannot petition for visitation at all in the absence of a
statute. 68 Lawyers should remember that whatever a state's case law is on
stepparent visitation, it may be subsequently overruled by state legislation.
Stepchild Adoption
Stepparent adoption occurs when a stepparent adopts a child and one birth-
parent retains custody and control of the child. The stepparent is recognized as a
legal parent and all the rights and responsibilities of the noncustodial biological
parent are terminated. Though the noncustodial biological parent's rights may
end, usually grandparents' visitation rights will continue after a stepparent
adopts a child. 69
Adoption is a statutory action, and a third party must affirmatively seek to adopt
a child. 70 Most statutes provide for adoption when a biological parent consents
to the adoption, or when the court finds that the biological parent abandoned or
neglected the child. 71 However, there is a strong presumption in favor of a
parent's right to associate with his or her child, which a stepparent seeking to
adopt a child must overcome. 72
Conclusion
Traditionally, a stepparent has no duty to support a stepchild during marriage

unless he or she intends to stand in loco parentis to a stepchild. A substantial
number of states have enacted statutes that require stepparents to support
stepchildren during marriage. There is no obligation to support a stepchild after
divorce, unless the stepparent made an independent, legally binding statement,
via contract or equitable estoppel.
276
When a stepparent divorces the natural or legal parent of a child, the stepparent
may want to continue a relationship with the child. The best way
68 Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990); Odell v. Odell,
629 So. 2d 891 (Fla. Dist. Ct. App. 1993); Finck v. O'Toole, 179 Ariz. 404, 880 P.2d
624 (1994); Tay lor v. Kennedy, 649 So. 2d 270 (Fla. Dist. Ct. App. 1995); In re
Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994); In re Petition of Ash, 507
N.W.2d 400 (Iowa 1993).
69 Beard v. Hamilton, 512 So. 2d 1088 (Fla. Dist. Ct. App. 1987); Smith v. Finstad, 247 Ga.
603, 277 S.E.2d 736 (1981); Lingwall v. Hoener, 108 Ill. 2d 206, 483 N.E.2d 512 (1985);
Sightes v. Barker, 684 N.E.2d 224 (Ind. 1997); Patterson v. Keleher, 365 N.W.2d 22 (Iowa
1985); Pillars v. Thompson, 103 N.M. 704, 712 P.2d 1366 (1986); Lay ton v. Foster, 61
N.Y.2d 747, 460 N.E.2d 1351, 472 N.Y.S.2d 916 (1984); In re Thornton, 24 Ohio App. 3d
152, 493 N.E.2d 977 (Ct. App. 1985); Chavis v. Witt, 285 S.C. 77, 328 S.E.2d 74 (1985); In
re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987); but see Ex parte Bronstein, 434 So.
2d 780 (Ala. 1983); Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981); Olson v. Flinn,
484 So. 2d 1015 (Miss. 1986); In re Nicholas, 457 A.2d 1359 (R.I. 1983).
70In re Marriage of Holcomb, 471 N.W.2d 76 (Iowa Ct. App. 1991).
71See MO. REV. STAT. 453.040(7) (Supp. 1998).
72In re A.L.H., 906 S.W.2d 373 (Mo. Ct. App. 1995).
277
Page 136
for a stepparent to have visitation and custody rights is for the stepparent to
adopt the child. However, short of adoption, a stepparent may be able to gain
custody of the child or establish visitation rights.
A stepparent may be able to seek custody of a stepchild upon divorce if a legal

right to seek custody exists. In a majority of states, the legal right to seek
custody upon divorce does not exist for stepparents because the courts have
jurisdiction to grant custody only for "children of the marriage," and
stepchildren do not qualify as children of the marriage. In a minority of states
that base their custody statutes on the Uniform Marriage and Divorce Act,
stepparents can seek custody if the child is not living with a parent. Once a
stepparent determines if a legal right exists that he or she can exercise, the
stepparent must prove that it is better to grant custody to the stepparent than to
the natural parent.
The process for a stepparent to gain visitation rights to see a stepchild is easier
than attaining custody of a stepchild. Nine states explicitly authorize stepparent
visitation, and in the twelve states that have contemplated third-party requests
for visitation rights, the courts may grant stepparent visitation based on their in-
loco-parentis status. As in other family law contexts, courts employ the "best
interest of the child" standard when deciding whether to award visitation rights.
Stepfamilies are more common now than during any other period of history. The
most pronounced component of this twentieth-century blended family is the
stepparent. Because the notion of forming second families is more accepted now,
the legal parameters of the stepparent-stepchild relationship should be constantly
monitored and defined, and the alternatives available to a stepparent who wishes
to continue a relationship with a stepchild upon divorce must be considered as
well.
278
279
Page 137
Chapter 11
Custody and Visitation Outside the Nuclear Family
At common law, unwed1 and wed2 parents have a constitutionally protected

right to associate with and raise their children. 3 The right of relatives such as
grandparents4 to visit with a child traditionally was a legally unenforceable
moral obligation on the parents. 5 Under this construct, a divorced parent could
prevent a third party associated with an ex-spouse from visiting or caring for a
minor child.
Though state courts lacked the inherent authority to challenge this concept of
parental autonomy, the Supreme Court ruled that state legislatures could
regulate the family given a showing of harm or threat to the child. 6 This stems
from the state's role as protector of its defenseless citizenry, or "parens patriae."7
As parens patriae, the state determines what is in the "best interests of the
child."8
1 Lehr v. Robertson, 463 U.S. 248 (1983); Nale v. Robertson, 871 S.W.2d 674 (Tenn.
1994); Rust v. Rust, 864 S.W.2d 52 (Tenn. Ct. App. 1993).
2 Santosky v. Kramer, 455 U.S. 745 (1982); Hao Thi Popp v. Lucas, 182 Conn. 545, 438
A.2d 755, 758 (1980); In re E.H., 609 So. 2d 1289 (Fla. 1992); Chodzko v. Chodzko, 66 Ill.
2d 28, 31, 360 N.E.2d 60, 63 (1976); Succession of Reiss, 15 So. 151 (La. 1894). See also
infra note 6.
3 This constitutional right is derived from the Fifth and Fourteenth Amendments. Griswold
v. Connecticut, 381 U.S. 479 (1965). See also supra note 1.
4 Gibson v. Gibson, 61 Ohio St. 3d 168, 573 N.E.2d 1074 (1991); Olds v. Olds, 356 N.W.2d
571 (Iowa 1984).
5 Hill v. Smith, 558 So. 2d 854 (Miss. 1990); Bronstein v. Bronstein, 434 So. 2d 780 (Ala.
1983); Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975); In re D.S., 806 P.2d 1143 (Okla.
280
Ct. App. 1991).
6 Lassiter v. Department of Social Serv. of Durham County, 452 U.S. 18 (1981); Moore v.
East Cleveland, 431 U.S. 494, 499 (1977); Wisconsin v. Yoder, 406 U.S. 205 (1972);
Prince v. Massachusetts, 321 U.S. 158 (1944); Mey er v. Nebraska, 262 U.S. 390 (1923).
7 Odell v. Lutz, 78 Cal. App. 2d 104, 177 P.2d 628 (Ct. App. 1947); Lehrer v. Davis, 214
Conn. 232, 571 A.2d 691 (1990); Birch v. Birch, 11 Ohio St. 3d 85, 463 N.E.2d 1254
(1984); Clark v. Bay er, 32 Ohio St. 299 (1877); State ex rel. Lisa Friedrich v. Circuit Court
for Dane County, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).
8 Wisconsin v. Yoder, 406 U.S. 205, 234 (1972); see Bailey v. Menzie, 542 N.E.2d 1015,
1020 (Ind. Ct. App. 1989) (for discussion of the constitutional concerns).
281
Parens Patr
Child was diagnosed as having Ewing's sarcoma, which, if left untreated, would ha
or metastasized, so there was a 25 percent to 50 percent chance the cancer could be
religious grounds. The State Department of Human Services instituted an action th
court ruled for the Department and Father appealed. The court of appeals affirmed, w
Pamela has not reached the age of accountability and it is well-settled that the state as parens
whether to submit a minor to necessary treatment where the condition is life threatening, as w
Matter of Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983).
These precepts have led to a departure from the traditional view of what constitutes
development of the psychological-parent model, 9 also known by the Latin term "in
fill this role, 11 as this description does not depend upon the type of relationship, b
This chapter covers the established statutory rights of persons other than a child's b
parties to gain child visitation rights, the effect of adoption on grandparent visitatio
it outlines civil and criminal actions an individual can pursue when a custodial par
Custody
There is a chart in Appendix M that lists state statutes giving third parties a right
in determining whether to give custody to a third party. It
9 JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (197
also 1 FAM. ADVOC. (Winter 1979); 12 FAM. ADVOC. (Fall 1989).
10 For in-depth discussion, see Chapter 10.
11 Allison D. v. Virginia M., 155 A.D.2d 11, 552 N.Y.S.2d 321 (App. Div. 1990) (dissent).
12 Carter v. Brodrick, 644 P.2d 850, 853 (Alaska 1982).
282
283
Page 139
then reviews when third parties may assert custodial rights, as parents may
always challenge a custody petition based on a third party's lack of standing.
Presumptions of Law and Standards of Proof
There is a progressive minority view that awards custody in accordance with the
best interest of the child, regardless of the fitness of the parents or the third
party. 13 In custody disputes between natural parents and long-term
psychological parents, a child's best interest is the decisive factor. 14
Parental-Right Doctrine
Most states recognize the conventional presumption that a parent has a superior
right to custody vis--vis any third party. 15 In the states following this
traditional majority view, a third party applying for custody must make a factual
showing of extraordinary circumstances;16 state courts have granted custody of
minors to third parties when a parent waived the right to custody, 17 or upon a
finding that a parent is unfit and a third party is fit. 18 Some states have
13 McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984); Koelle v. Zwiren,
284 Ill. App. 3d 778, 672 N.E.2d 868 (App. Ct. 1996); In re Sechrest, 202 Ill. App.
3d 865, 560 N.E.2d 1212 (App. Ct. 1990); Lloy d v. Lloy d, 92 Ill. App. 3d 124, 415
N.E.2d 1105 (App. Ct. 1980); Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79
(Ct. App. 1994).
14 Carter v. Brodrick, 644 P.2d 850 (Alaska 1982); In re Custody of C.C.R.S., 892 P.2d 246
(Colo. 1995); Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989); In re Stewart,
602 So. 2d 212 (La. Ct. App. 1992); Stanley D. v. Deborah D., 124 N.H. 138, 467 A.2d 249
(1983); Todd v. Sheridan, 268 N.J. Super. 387, 633 A.2d 1009 (Super. Ct. App. Div. 1993);
Palermo v. Palermo, 164 N.J. Super. 492, 397 A.2d 349 (Super. Ct. App. Div. 1978);
Simons v. Gisvold, 519 N.W.2d 585 (N.D. 1994); Karner v. McMahon, 433 Pa. Super. 290,
640 A.2d 926 (Super. Ct. 1994); Commonwealth ex rel. Husack v. Husack, 273 Pa. Super.
284
192, 417 A.2d 233 (Super. Ct. 1979); see also In re E.J.H., 546 N.W.2d 361 (N.D. 1996).
15Ex parte D.J., 645 So. 2d 303 (Ala. 1994); Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d
278 (Ct. App. 1995); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Webb v.
Webb, 546 So. 2d 1062 (Fla. Dist. Ct. App. 1989); Zvorak v. Beireis, 519 N.W.2d 87 (Iowa
1994); In re Williams, 254 Kan. 814, 869 P.2d 661 (1994); Greathouse v. Shreve, 891
S.W.2d 387 (Ky. 1995); Burrows v. Sanders, 99 Md. App. 69, 635 A.2d 82 (Ct. Spec. App.
1994); Straub v. Straub, 209 Mich. App. 77, 530 N.W.2d 125 (Ct. App. 1995); Flathers v.
Flathers, 948 S.W.2d 463 (Mo. 1997); Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901
(1994); Simons v. Gisvold, 519 N.W.2d 585 (N.D. 1994); Clark v. Bay er, 32 Ohio St. 299
(1877); In re Perales, 52 Ohio St. 2d 89, 369 N.E.2d 1047 (1977); Ellerbe v. Hooks, 490
Pa. 363, 416 A.2d 512 (1980), but see Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126
(1995) (Pennsy lvania Supreme Court decision that sought to abandon presumption in
favor of parents did not garner a majority ); Frieberg v. Frieberg, 509 N.W.2d 415 (S.D.
1993); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Barstad v. Frazier, 118 Wis. 2d 549,
348 N.W.2d 479 (1984); see also Richard S. Victor et al., Statutory Review of Third-Party
Rights regarding Custody, Visitation and Support, 25 FAM L.Q. 19, 21 (Spring 1991).
16 Litz v. Bennum, 111 Nev. 35, 888 P.2d 438 (1995); Karen D. v. Florence D., 210 A.D.2d
165, 620 N.Y.S.2d 358 (App. Div. 1994); Lear v. Lear, 124 Or. App. 524, 863 P.2d 482 (Ct.
App. 1993); Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995); Pacquette v.
Pacquette, 146 Vt. 83, 499 A.2d 23 (1985).
17In re Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293 (App. Ct. 1989); Sty ck v. Karnes,
462 N.E.2d 1327 (Ind. Ct. App. 1984); In re Williams, 254 Kan. 814, 869 P.2d 661 (1994).
18 Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990); Martini v. Jefferson,
213 Ga. App. 666, 445 S.E.2d 814 (Ct. App. 1994); Miller v. Rieser, 213 Ga. App. 683, 446
S.E.2d 233 (Ct. App. 1994); In re Williams, 254 Kan. 814, 869 P.2d 661 (1994); Ruppel v.
Lesner, 421 Mich. 559, 364 N.W.2d 665 (1984); In re Hohmann's Petition, 255 Minn. 165,
95 N.W.2d 643 (1959); Milam v. Milam, 376 So. 2d 1336 (Miss. 1979); In re Interest of
G.A.W., 867 S.W.2d 704 (Mo. Ct. App. 1993); Stuhr v. Stuhr, 240
285
Substantial Change of C
The trial court awarded custody of a two-year-old child to Grandparents, and super
inability to handle frustration resulted in abuse of Child as well as Father. Mother
modifications involving a parent and a third party.
The court of appeals held that the natural parent seeking to modify an award must
she was more mature, had more information on parenting, and had learned to contr
intellectual functioning would not change, and that she still had a problem managi
Mother continued to exist.
Lear v. Lear, 124 Or. App. 524, 863 P.2d 482 (Ct. App. 1993).
held it improper19 or even unconstitutional20 to apply the best-interest-of-the-child

child.
A parent may be able to regain custody if he or she can show that a substantial cha
when a state court awards custody of a minor to a third party;21 in practice, this m
When Custodial Rights May Be Asserted by Third Parties
Procedural Barriers
Grandparents, who may not be able to institute an independent cause of action, 23

parents are unfit. 24
Neb. 239, 481 N.W.2d 212 (1992); Rowe v. Rowe, 58 Ohio Law Abs. 497, 97 N.E.2d 223 (A
19 Brooks v. Carson, 194 Ga. App. 365, 390 S.E.2d 859 (Ct. App. 1990), overruled on other gr
286
869 P.2d 661 (1994); In re A.R.A., 277 Mont. 66, 919 P.2d 388 (1996); Price v. Howard, 122 N
20 McQuade v. McQuade, 124 Or. App. 243, 862 P.2d 545 (Ct. App. 1993).
21 Lear v. Lear, 124 Or. App. 524, 863 P.2d 482 (Ct. App. 1993).
22 Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996); but see In re Williams, 254 Kan.
change).
23In re J.N.Z., 635 So. 2d 134 (Fla. Dist. Ct. App. 1994).
24In re Marriage of Mitchell, 531 N.W.2d 132 (Iowa 1995); Ruppel v. Lesner, 421 Mich. 559,
287
Page 141
Principles of Standing
A third party can exercise only an established legal right to seek custody or
''legal standing." Though biological parents have a constitutionally established
legal right to custody, 25 third parties are afforded rights to custody only by state
statutes. 26 Further, a third party must show a real interest in the outcome of the
case or "substantive standing."27 A nonparent can overcome a natural parent's
prima facie right by showing that the nonparent has de facto custody of the
child, 28 or that the child is not in the custody of a parent or parents. 29
Alternatively, a third party such as a grandparent may show that he or she has
become a psychological parent to the child. 30 Some of these standing principles
are codified by statute, if not defined by case law.
Same-Sex Relationships31
An unrelated same-sex life partner may gain standing only as a third party who
has formally adopted the child, or stood in loco parentis to a child of a former
partner, 32 if at all. 33 Except for the issue of standing, 34 a same-sex partner's
petition for custody is treated as any other petition by a third party vis--vis a
natural parent;35 usually there must be a determination that the natural parent is
unfit. 36
Challenging Petitions for Custody
The standing of nonparents is always an issue in a petition for custody. Lawyers

for third parties should plead standing in petitions for custody, as a
25See supra notes 1, 2.

26See Appendix M.
27In re Sechrest 202 Ill. App. 3d 865, 560 N.E.2d 1212 (App. Ct. 1990).
288
28In re Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992); Durkin v. Hinich, 442 N. W.2d 148
(Minn. 1989); see also UNIF. CHILD CUSTODY JURISDICTION ACT 10, 9 U.L.A.
269 (1988).
29In re Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992); In re McCuan, 176 Ill. App. 3d 421,
531 N.E.2d 102 (App. Ct. 1988); In re Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150 (1986); In
re R.R.K., 260 Mont. 191, 859 P.2d 998 (1993); see also UNIF. MARRIAGE & DIVORCE
ACT 401 (d) (2), 9A U.L.A. 550 (1987) (adopted in Arizona, Colorado, Illinois,
Kentucky, Minnesota, Missouri, Montana, and Washington).
30 Walkenstein v. Walkenstein, 443 Pa. Super. 683, 663 A.2d 178 (Super. Ct. 1995).
31 There is a small body of case law regarding a same-sex partner's support obligation.
Karin T. v. Michael T., 127 Misc. 2d 14, 484 N.Y.S.2d 780 (Fam. Ct. 1985) (transgender
male who signed birth certificate of artificially inseminated child ordered to pay child
support). But see Music v. Rachford, 654 So. 2d 1234 (Fla. Dist. Ct. App. 1995).
32See Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997).
33 Barnae v. Barnae (Marchant-Schumacher), 123 N.M. 583, 943 P.2d 1036 (1997); A.C.
v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct. App. 1992); J.A.L. v. E.P.H., 453 Pa. Super. 78,
682 A.2d 1314, 1321 (Super. Ct. 1996); but see Curiale v. Reagan, 222 Cal. App. 3d 1597,
272 Cal. Rptr. 520 (Ct. App. 1990); but see also Music v. Rachford, 654 So. 2d 1234 (Fla.
Dist. Ct. App. 1995).
34See also Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood
to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional Families, 78
GEO. L.J. 459 (1990); Elizabeth A. Delaney, Statutory Protection of the Other Mother:
Legally Recognizing the Relationship between the Nonbiological Lesbian Parent and Her
Child, 43 HASTINGS L.J. 177 (1991).
35 Nancy S. v. Michele G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (Ct. App. 1991).
36 Bowen v. Bowen, 688 So. 2d 1374 (Miss. 1997); Bottoms v. Bottoms, 249 Va. 410, 457
S.E.2d 102 (1995).
289
Unfit Mother by Any Ot
Mother, who "dropped out" of high school, lived with Grandmother until she was
dating, but left after eight months. Child was born during separation. The father to
relationship with another man that had begun during the marriage, and contracted a
Child and has left fingermarks.
Grandmother lived two blocks away from Mother. In the two years before the trial
the child for weeks at a time, and every weekend since Child's birth.
Mother and Child also lived with another man who supported Mother. Subsequent
Woman, a lesbian. Woman, employed as a gift shop manager, supported Mother. T
Mother neglected Child.
Grandmother petitioned the court to award her custody of Child. The juvenile cour
Mother appealed to the circuit court, which affirmed. Mother appealed to the court
to the state supreme court.
The state supreme court held the court of appeals failed to give proper deference up
lesbianism does not always mean a parent is unfit, but noted that lesbianism is con
compelling:
In the present case, the record shows a mother who, although devoted to her son, refuses to su
day s without informing the child's custodian of her whereabouts. She moves her residence fr
before buy ing food for the child. She has participated in illicit relationships with numerous me
was located. To aid in her mobility, the mother keeps the child's suitcase packed so he can be
Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995).
290
Page 143
natural parent's lawyer will raise standing as an affirmative defense. 37 However, a

parent can waive this standing issue by not raising it in a timely manner. 38
Conclusion
Although most custody statutes apply to any individual who has had a
significant relationship with a child, 39 only those classes of persons who are
afforded legal recourse can petition for custody. This is particularly important in
the burgeoning area of the dissolution of same-sex relationships, as most states
do not recognize the legal standing of a former life partner to petition for partial
custody of a child born during the partnership.
Grandparent Visitation
The chart in Appendix M outlines the statutory rights given to grandparents.

This section covers the case law pertaining to the rights of grandparents, the
effect of adoption on grandparent visitation rights, and the constitutional
grounds upon which parents have traditionally challenged grandparent visitation
rights.
Grandparent Visitation Law
Some states may provide for grandparent visitation rights in the absence of
statutes. 40 States may41 or may not42 provide visitation rights for grandchildren
born out of wedlock.
There are two basic types of grandparent visitation statutes: those equitable in
nature, and those requiring only that the petition be reasonable.
Statutes Derived from Equity
291
Even under common law, state courts did recognize equitable exceptions43 to
parental autonomy when there was a close and meaningful relationship
37 Paul J. Buser, Introduction, The First Generation of Stepchildren, 25 FAM. L.Q.

1, 67 (Spring 1991).
39 Richard S. Victor et al., Statutory Review of Third-Party Rights regarding Custody,
Visitation and Support, 25 FAM. L.Q. 19, 20 (Spring 1991).
40 Moses v. Cober, 641 N.E.2d 668 (Ind. Ct. App. 1994); Krieg v. Glassburn, 419 N.E.2d
1015 (Ind. Ct. App. 1981).
41 Rudolph v. Floy d, 309 Ark. 514, 832 S.W.2d 219 (1992); Welch v. Suggs, 175 Ga. App.
233, 333 S.E.2d 31 (Ct. App. 1985); In re C.E.R., 796 S.W.2d 423 (Mo. Ct. App. 1990);
Roberts v. Ward, 126 N.H. 388, 493 A.2d 478 (1985); Bishop v. Piller, 536 Pa. 41, 637
A.2d 976 (1994); but see Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994); Olds v.
Olds, 356 N.W.2d 571 (Iowa 1984). See also Laura W. Morgan, Grandparent Visitation
Rights: Challenges and Solutions, 4 DIVORCE LITIG. 248, 25053 (1992).
42 Graves v. Eckman, 550 N.W.2d 470 (Iowa Ct. App. 1996); McVay v. Blen, No. 02A01-
9508-JV-00183, 1996 WL 729911 (Tenn. Ct. App. Dec. 19, 1996); In re Troxel, 87 Wash.
App. 131, 940 P.2d 698 (Ct. App. 1997).
43 Chodzko v. Chodzko, 66 Ill. 2d 28, 360 N.E.2d 60 (1976); Davis v. Davis, 842 S.W.2d 588
(Tenn. 1992).
292
Page 144
between the grandparent and grandchild. 44 The court considered the facts of each
case, awarding visitation based on divorce of the parents, 45 in addition to other
situations involving a disruption of the nuclear family. 46
The equitable exceptions based on familial disruptions are codified by statute in

many states. 47 A few states hold that their statutes do not specifically provide
rights to great-grandparents. 48
Parental Objections
State courts, concerned about violating parents' constitutional rights, may not
grant visitation when the nuclear family is intact, 49 or when both parents,
divorced50 or married, 51 do not want the child to see the grandparent. 52 Some
courts theorize that grandparent rights are derivative of, and therefore secondary
to, parental rights; as such, a grandparent may53 or may not54 be able to seek
visitation rights over the objection of the grandparent's son or daughter.
Exceptional Circumstances
Apparently, there is one jurisdiction that does not require any proof of
exceptional circumstances;55 however, most state courts require that there be a
44 Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 430 N.E.2d 652 (App. Ct. 1981).
45 Brock v. Brock, 205 So. 2d 903 (Ala. 1968); Minge v. Minge, 226 Ark. 262, 289 S.W.2d
189 (1956); Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952); Benner v. Benner, 113
Cal. App. 2d 531, 248 P.2d 425 (Ct. App. 1952); Krieg v. Glassburn, 419 N.E.2d 1015 (Ind.
Ct. App. 1981); Warman v. Warman, 496 S.W.2d 286 (Mo. Ct. App. 1973).
46 Kewish v. Brothers, 181 So. 2d 900 (Ala. 1966); Mirto v. Bodine, 29 Conn. Supp. 510,
294 A.2d 336 (Super. Ct. 1972); George v. Sizemore, 238 Ga. 525, 233 S.E.2d 779 (1977);
Loveless v. Michalak, 168 Ill. App. 3d 598, 522 N.E.2d 873 (App. Ct. 1988); Boy les v.
Boy les, 14 Ill. App. 3d 602, 302 N.E.2d 199 (App. Ct. 1973); Solomon v. Solomon, 319 Ill.
App. 618, 49 N.E.2d 807 (App. Ct. 1943); Morse v. Daly, 101 Nev. 320, 704 P.2d 1087
293
(1985); In re Bomgardner, 711 P.2d 92 (Okla. 1985).
47 Laura W. Morgan, Grandparent Visitation Rights: Challenges and Solutions, 4
DIVORCE LITIG. 248, 25053 (1992).
48 Fischer v. Fischer, 544 So. 2d 1079 (Fla. 1989); Cole v. Thomas, 735 S.W.2d 333 (Ky.
Ct. App. 1987); David "M." v. Lisa "M.," 207 A.D.2d 623, 615 N.Y.S.2d 783 (App. Div.
1994).
49 B.R.O. v. G.C.O., 646 So. 2d 126 (Ala. Civ. App. 1994); White v. Jacobs, 198 Cal. App.
3d 122, 243 Cal. Rptr. 597 (Ct. App. 1988); In re Marriage of Gay den, 229 Cal. App. 3d
1510, 280 Cal. Rptr. 862 (Ct. App. 1991); Towne v. Cole, 133 Ill. App. 3d 380, 478 N.E.2d
895 (App. Ct. 1985); Lingo v. Kelsay, 651 So. 2d 499 (La. Ct. App. 1995); Ruppel v.
Lesner, 421 Mich. 559, 364 N.W.2d 665 (1984); Nelson v. Kendrick, 187 Mich. App. 367,
466 N.W.2d 402 (Ct. App. 1991); Thompson v. Vanaman, 212 N.J. Super. 596, 515 A.2d
1254 (Super. Ct. App. Div. 1986); Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (Ct.
App. 1988); In re Gibson, 61 Ohio St. 3d 168, 573 N.E.2d 1074 (1991); Herron v. Seizak,
321 Pa. Super. 466, 468 A.2d 803 (Super. Ct. 1983); In re Hegemann, 190 Wis. 2d 447,
526 N.W.2d 834 (Ct. App. 1994); see also In re Noonan, 171 Wis. 2d 706, 492 N.W.2d 172
(Ct. App. 1992) (aunt petitioned for visitation); Simmons v. Simmons, 900 S.W.2d 682
(Tenn. 1995) (court erred in failing to grant the parents' petition to terminate grandparent
visitation).
50 Steward v. Steward, 111 Nev. 295, 890 P.2d 777 (1995).
51In re Desjardins, 10 Fam. L. Rep. (BNA) 1229 (Cal. Ct. App. Jan. 25, 1984).
52See Graves v. Eckman, 550 N.W.2d 470 (Iowa Ct. App. 1996).
53 Hill v. Divecchio, 425 Pa. Super. 355, 625 A.2d 642 (Super. Ct. 1993).
54 Olds v. Olds, 356 N.W.2d 571 (Iowa 1984); Olson v. Olson, 518 N.W.2d 65 (Minn. Ct.
App. 1994); see also Moses v. Cober, 641 N.E.2d 668 (Ind. Ct. App. 1994); Clark v. Evans,
778 S.W.2d 446 (Tenn. Ct. App. 1989).
55 Fairbanks v. McCarter, 330 Md. 39, 622 A.2d 121 (1993).
294
Page 145
295
divorce56 or some other disruption to the family, such as the death of a parent. 57
Some state courts go farther, allowing a grandparent to intervene only in those
divorce or modification proceedings58 or custody matters59 already before the
court. Even with a divorce proceeding, however, a court may hold that it cannot
exercise jurisdiction when the child is not the natural child of both parties. 60
Best Interest of the Child
The relationship between the grandparent or great-grandparent and a child is a

standing issue. 61 State courts also consider whether the relationship is in the
56 Mills v. Parker, 549 So. 2d 97 (Ala. Civ. App. 1989); Sanders v. Sanders, 297 Ark.
621, 764 S.W.2d 443 (1989); Cantu v. Cantu, 562 N.E.2d 768 (Ind. Ct. App. 1990);
McCarty v. McCarty, 559 So. 2d 517 (La. Ct. App. 1990); Adoption & Visitation of
a Minor, 14 Mass. App. Ct. 992, 440 N.E.2d 766 (App. Ct. 1982); Jewett v. Jewett,
172 Mich. App. 391, 431 N.W.2d 523 (App. Ct. 1988); Emanuel S. v. Joseph E., 78
N.Y.2d 178, 577 N.E.2d 27 (1991); Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73
(1994); In re Gibson, 61 Ohio St. 3d 168, 573 N.E.2d 1074 (1991); Tope v.
Kaminski, 793 S.W.2d 315 (Tex. App. 1990); Adoption of R.D.S., J.S. v. F.V., 787
P.2d 968 (Wy o. 1990).
57 Von Eiff v. Azicri, 699 So. 2d 722 (Fla. Dist. Ct. App. 1997).
58 Mills v. Mills, 549 So. 2d 97 (Ala. Civ. App. 1989); Self v. Fugard, 518 So. 2d 727 (Ala.
Civ. App. 1987); Herndon v. Herndon, 575 So. 2d 792 (Fla. Dist. Ct. App. 1991); Sragowicz
v. Sragowicz, 603 So. 2d 1323 (Fla. Dist. Ct. App. 1992).
59 Spradling v. Harris, 13 Kan. App. 2d 595, 778 P.2d 365 (Ct. App. 1989).
60 Finck v. O'Toole, 179 Ariz. 404, 880 P.2d 624 (1994).
61In re Doe, 156 Misc. 2d 942, 595 N.Y.S.2d 624 (Fam. Ct. 1993); Apker v. Malchak, 112
A.D.2d 518, 490 N.Y.S.2d 923 (App. Div. 1985); Tay lor v. Alger, 129 Misc. 2d 1054, 495
N.Y.S.2d 120 (Fam. Ct. 1985).
296
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best interest of the child before ordering grandparent visitation. 62 However, one
court has interpreted its equitably derived statute liberally by holding that the
best-interest-of-the-child standard is the paramount factor, regardless of a
divorce. 63
Open-ended Law
Open-ended statutes provide for grandparent visitation, with the only

prerequisite being that the petition be reasonable. These statutes allow
grandparent visitation when the grandchild's nuclear family is still intact. 64 The
rationale behind these statutes is that it is usually in the best interest of the
child to have the involvement of caring grandparents. 65
Effect of Adoption on Grandparent Visitation
A grandparent's right to seek or exercise visitation depends upon whether there

is a bloodline to the adoptive person, as well as whether granting rights is in
the best interest of the grandchild. 66 If the adoption is by strangers, most likely
a grandparent's visitation rights will terminate. 67 If the adoption is by a
stepparent68 or a blood relative, usually a grandparent's visitation rights will
62In re Robert D., 151 Cal. App. 3d 391, 198 Cal. Rptr. 301 (Ct. App. 1984);
McVey v. Frederickson 226 Ill. App. 3d 1082, 590 N.E.2d 996 (App. Ct. 1992);
Lingwall v. Hoener, 108 Ill. 2d 206, 483 N.E.2d 512 (1985); Baker v. Perkins, 774
S.W.2d 129 (Ky. Ct. App. 1989); Olepa v. Olepa, 151 Mich. App. 690, 391 N.W.2d
446 (Ct. App. 1986); Dice v. Dice, 1 Neb. Ct. App. 241, 493 N.W.2d 207 (Ct. App.
1992); Preston v. Mercieri, 133 N.H. 36, 573 A.2d 128 (1990); Becker v. Becker,
262 N.J. Super. 311, 620 A.2d 1092 (Super. Ct. Ch. Div. 1992); Higuchi v. Brown,
204 A.D.2d 452, 611 N.Y.S.2d 625 (App. Div. 1994); In re Whitaker, 36 Ohio St. 3d
213, 522 N.E.2d 563 (1988); Johnson v. Deisenger, 404 Pa. Super. 41, 589 A.2d
1160 (Super. Ct. 1991); Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256,
455 A.2d 1180 (1983); Strouse v. Olson, 397 N.W.2d 651 (S.D. 1986).
63 Preston v. Mercieri, 133 N.H. 36, 573 A.2d 128 (1990).
297
64See R.T. v. J.E., 277 N.J. Super. 595, 650 A.2d 13 (Super. Ct. Ch. Div. 1994).
65 King v. King, 828 S.W.2d 630 (Ky. 1992); Shempp-Cook v. Cook, 455 N.W.2d 216 (N.D.
1990); Ingram v. Ingram, 814 P.2d 1052 (Okla. Ct. App. 1991); Machado v. Uri, 94 Or.
App. 731, 767 P.2d 106 (Ct. App. 1989); Strouse v. Olson, 397 N.W.2d 651 (S.D. 1986);
Clark v. Evans, 778 S.W.2d 446 (Tenn. Ct. App. 1989); Campbell v. Campbell, 896 P.2d 635
(Utah Ct. App. 1995).
66 Lingwall v. Hoener, 108 Ill. 2d 206, 483 N.E.2d 512 (1985); Mimkon v. Ford, 66 N.J.
426, 332 A.2d 199 (1975); In re Whitaker, 36 Ohio St. 3d 213, 522 N.E.2d 563 (1988).
67In re W.E.G. v. J.R.G., 710 P.2d 410 (Alaska 1985); In re A.C., 428 N.W.2d 297 (Iowa
1988); Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985); Sowers v. Tsamolias, 262 Kan.
717, 941 P.2d 949 (1997); L.F.M. v. Department of Social Serv., 67 Md. App. 379, 507
A.2d 1151 (Ct. Spec. App. 1986); Suroviec v. Mitchell, 347 Pa. Super. 399, 500 A.2d 894
(Super. Ct. 1985); Kasper v. Nordfelt, 815 P.2d 747 (Utah Ct. App. 1991); but see Johnson
v. Fallon, 129 Cal. App. 3d 71, 181 Cal. Rptr. 414 (Ct. App. 1982).
68 Beard v. Hamilton, 512 So. 2d 1088 (Fla. Dist. Ct. App. 1987); Smith v. Finstad, 247 Ga.
603, 277 S.E.2d 736 (1981); Lingwall v. Hoener, 108 Ill. 2d 206, 483 N.E.2d 512 (1985);
Sightes v. Barker, 684 N.E.2d 224 (Ind. 1997); Patterson v. Keleher, 365 N.W.2d 22 (Iowa
1985); Pillars v. Thompson, 103 N.M. 704, 712 P.2d 1366 (1986); Lay ton v. Foster, 61
N.Y.2d 747, 460 N.E.2d 1351, 472 N.Y.S.2d 916 (1984); In re Thornton, 24 Ohio App. 3d
152, 493 N.E.2d 977 (Ct. App. 1985); Chavis v. Witt, 285 S.C. 77, 328 S.E.2d 74 (1985); In
re Nearhoof, 178 W. Va. 359, 359 S.E.2d 587 (1987); but see Ex parte Bronstein, 434 So.
2d 780 (Ala. 1983); Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981); Olson v. Flinn,
484 So. 2d 1015 (Miss. 1986); In re Nicholas, 457 A.2d 1359 (R.I. 1983).
298
Page 147
continue. 69 Some relatives may be afforded the privacy given to "strangers,"70
Most of these states take the view that grandparent visitation rights are
statutorily derived. As such, a grandparent may not have visitation rights when
the state statute does not provide for visitation rights after adoption. 71 However,
statutes may include exceptions that would allow for visitation rights for
grandparents even after adoption by strangers. 72
Biologically Derived Rights
Some states hold that grandparents derive visitation rights from their sons or
daughters. In these states, if a parent gives up his or her parental rights to the
child, then the grandparent's visitation right terminates;73 some states further
hold that whether the child was adopted by a stranger, stepparent, or blood
relative does not matter. 74 The same holds true if a grandparent had given up his
or her parental rights to a parent (and subsequent progeny). 75 A parent's death
may76 or may not77 equate to termination of parental rights. Some states,
contrary to this reasoning, hold that a grandparent's rights are independent of a
parent's rights. 78
69In re Marriage of Davisson, 797 P.2d 809 (Colo. Ct. App. 1990); In re Aragon,
764 P.2d 419 (Colo. Ct. App. 1988); Motes v. Love, 202 Ga. App. 749, 415 S.E.2d
334 (Ct. App. 1992); Loveless v. Michalak, 168 Ill. App. 3d 598, 522 N.E.2d 873
(App. Ct. 1988); In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 1992); Guardianship
of Nemer v. Sweeney, 419 N.W.2d 582 (Iowa 1988); In re Adoption of A.M.R.,
527 N.W.2d 565 (Minn. Ct. App. 1995); Howell v. Rogers, 551 So. 2d 904 (Miss.
1989); Kanvick v. Reilly, 233 Mont. 324, 760 P.2d 743 (1988); Preston v. Mercieri,
133 N.H. 36, 573 A.2d 128 (1990); People ex rel. Sibley v. Sheppard, 54 N.Y.2d
320, 429 N.E.2d 1049, 445 N.Y.S.2d 420 (1981); Puleo v. Forgue, 610 A.2d 124
(R.I. 1992); In re C.G.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
70 Bush v. Squellati, 122 Ill. 2d 153, 522 N.E.2d 1255 (1988); Hicks v. Enlow, 764 S.W.2d
68 (Ky. 1989); Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (Ct. App. 1987).
71In re W.E.G., 710 P.2d 410 (Alaska 1985); In re Herreras, 159 Ariz. 511, 768 P.2d 673
299
(Ct. App. 1989); In re K.A.M., 367 So. 2d 744 (Fla. Dist. Ct. App. 1979); Adoption of
R.D.S., J.S. v. F.V., 787 P.2d 968 (Wy o. 1990).
72 Johnson v. Fallon, 129 Cal. App. 3d 71, 181 Cal. Rptr. 414 (Ct. App. 1982); Sibley v.
Sheppard, 54 N.Y.2d 320, 429 N.E.2d 1049, 445 N.Y.S.2d 420 (1981).
73 Sowers v. Tsamolias, 262 Kan. 717, 941 P.2d 949 (1997).
74 Bronstein v. Bronstein, 434 So. 2d 780 (Ala. 1983); Vice v. Andrews, 328 Ark. 573, 945
S.W.2d 914 (1997); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (Ct. App.
1983); In re N.S., 821 P.2d 931 (Colo. Ct. App. 1991); Bush v. Squellati, 122 Ill. 2d 153, 522
N.E.2d 1255 (1988); Lipginski v. Lipginski, 476 N.E.2d 924 (Ind. Ct. App. 1985); In re
Gardiner, 287 N.W.2d 555 (Iowa 1980); Kanvick v. Reilly, 233 Mont. 324, 760 P.2d 743
(1988); Bopp v. Lino, 110 Nev. 1246, 885 P.2d 559 (1994); In re Martin, 68 Ohio St. 2d
250, 626 N.E.2d 82 (1994); Leake v. Grissom, 614 P.2d 1107 (Okla. 1980); In re Adoption
of J.C.G., 177 Wis. 2d 424, 501 N.W.2d 908 (Ct. App. 1993).
75 Catherine JJ v. Charlotte II, 216 A.D.2d 752, 628 N.Y.S.2d 826 (App. Div. 1995).
76 Bikos v. Nobliski, 88 Mich. App. 157, 276 N.W.2d 541 (Ct. App. 1979); Olson v. Flinn,
484 So. 2d 1015 (Miss. 1986); Faust v. Messinger, 345 Pa. Super. 155, 497 A.2d 1351
(Super. Ct. 1983).
77 H.F. v. T.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
78In re Groleau, 585 N.E.2d 726 (Ind. Ct. App. 1992); Beckman v. Boggs, 337 Md. 688,
655 A.2d 901 (1995); In re Adoption No. 92A41, 95 Md. App. 461, 622 A.2d 150 (Ct.
Spec. App. 1993); Lucero v. Hart and Thompson, 120 N.M. 794, 907 P.2d 198 (1995);
Chavis v. Witt, 285 S.C. 77, 328 S.E.2d 74 (1985).
300
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Timing
A result of the entry of an adoption decree is the termination of parental rights.

In some circumstances, parental rights are terminated before the adoption of the
child. In cases in which the grandchildren are the wards of the state, courtson
varying policy groundsmay79 or may not80 grant grandparents visitation.
Whether a visitation order is in effect before the institution of adoption

proceedings may play a role in a court considering sustaining grandparent
visitation following the adoption of a grandchild by a relative or stepparents. 81
Notification
A related issue is whether a grandparent who benefits from a visitation order is

entitled to notice of adoption proceedings that may terminate visitation rights.
Most states hold that because grandparent visitation rights are not
constitutionally protected, visitation can be terminated without a hearing. 82 A
minority of states may provide due process rights to grandparents, however. 83
Constitutional Challenges to Grandparent Visitation Rights
Most of the cases presented in this section on grandparent visitation suggest

ways in which a parent might lodge a constitutional challenge. 84
Standing
A parent may argue that, given the nature of an elder-child relationship, a

grandparent is not entitled to relief. As contemplated in equity, a grandparent
had to show that there was an established relationship with the grandchild.
Whether the relationship between a grandparent or great-grandparent and a
grandchild or great-grandchild would benefit from a court order of vis-
301
79In re Carl B., 15 Fam. L. Rep. (BNA) 1171 (N.Y. Fam. Ct. Jan. 18, 1989).
80In re T.G., 147 Ill. App. 3d 484, 498 N.E.2d 370 (App. Ct. 1986); Faust v. Messinger, 345
Pa. Super. 155, 497 A.2d 1351 (1983).
81 Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985); compare Mauldin v. Richter, 515 So.
2d 1030 (Fla. Dist. Ct. App. 1987), with Beard v. Hamilton, 512 So. 2d 1088 (Fla. Dist. Ct.
App. 1987); Olson v. Flinn, 484 So. 2d 1015 (Miss. 1986); Aegerter v. Thompson, 610
S.W.2d 308 (Mo. Ct. App. 1980).
82In re Marriage of Aragon, 764 P.2d 419 (Colo. Ct. App. 1988); Ward v. Ward, 537 A.2d
1063 (Del. Fam. Ct. 1987); In re Marriage of Balzell, 207 Ill. App. 3d 310, 566 N.E.2d 20
(App. Ct. 1991); Drennen v. Drennen, 52 Ohio App. 3d 121, 557 N.E.2d 149 (Ct. App.
1988); In re D.S., 806 P.2d 1143 (Okla. 1991); Tope v. Kaminski, 793 S.W.2d 315 (Tex.
App. 1990).
83In re C.G.F., 168 Wis. 2d 62, 483 N.W.2d 803 (1992).
84See also Edward M. Burns, Grandparent Visitation Rights: Is It Time for the Pendulum to
Fall?, 25 FAM. L.Q. 59 (Spring 1991); Cy nthia L. Greene, Grandparents' Visitation Rights:
Is the Tide Turning?, 12 J. AM. ACAD. MATRIM. LAW. 51 (Summer 1994); Samuel V.
Schoonmaker Ill et al., Constitutional Issues Raised by Third-Party Access to Children, 25
FAM. L.Q. 95 (Spring 1991); Laura W. Morgan, Grandparent Visitation Rights: Challenges
and Solutions, 4 DIVORCE LITIG. 248 (1992); Laura W. Morgan, Grandparent Visitation:
A 1995 Update, 7 DIVORCE LITIG. 111 (May 1995).
302
Page 149
itation is now a standing issue. 85 For an individual to have such substantive

standing, there has to be an actual injury, which is traceable to the defendant's
conduct, and redressable by the relief sought. 86
A parent may argue that a statute did not contemplate granting relief in such a
situation. Threshold requirements are an aspect of legal standing, as statutes can
define when an injury occurs. If a grandparent tries to seek visitation before a
triggering event such as a divorce, a state court may dismiss the case based on a
lack of standing. 87
The manner in which courts treat grandparents with visitation orders, or who
seek visitation after the termination of parental rights, is also a standing issue.
Using the concepts of statutorily or biologically derived rights, a state court or
legislature can control the instances when a grandparent can seek or enforce a
visitation order after the termination of parental rights. 88
Statute Unconstitutional
Parents might attack a statute on its face, with the argument that the statute
violates their constitutionally protected right to raise their children as they see
fit. As discussed earlier, there are two types of grandparent visitation statutes:
those requiring disruption to the family unit, and those requiring only that the
petition be reasonable.
Equitably Derived Statutes
Because these statutes require a disruption to the nuclear family, state courts
have held that this type of statute is constitutional because it minimally invades
the constitutionally protected parent-child relationship. 89
Open-ended Statutes
303
The issue presented here is whether granting visitation rights to grandparents to
see grandchildren in intact families unconstitutionally infringes upon parents'
rights to raise their children as they see fit. Though some states uphold
85In re Doe, 156 Misc. 2d 942, 595 N.Y.S.2d 624 (Fam. Ct. 1993); Apker v.
Malchak, 112 A.D.2d 518, 490 N.Y.S.2d 923 (App. Div. 1985); Tay lor v. Alger, 129
Misc. 2d 1054, 495 N.Y.S.2d 120 (Fam. Ct. 1985).
86 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
87 Ostery oung v. Leibowitz, 371 So. 2d 1068 (Fla. Dist. Ct. App. 1979); In re Meek, 443
N.E.2d 890 (Ind. Ct. App. 1983); In re Marriage of Woodley, 474 N.W.2d 815 (Iowa Ct.
App. 1991); Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (Ct. App. 1988); In re
Gibson, 61 Ohio St. 3d 168, 573 N.E.2d 1074 (1991). Also see the earlier discussion in this
chapter under "Grandparent Visitation Law."
88 See the discussion above under "Effect of Adoption on Grandparent Visitation."
89 Cocktrell v. Sittason, 500 So. 2d 1119 (Ala. Civ. App. 1986); Sketo v. Brown, 559 So. 2d
381 (Fla. Dist. Ct. App. 1990); Patterson v. Keleher, 365 N.W.2d 22 (Iowa 1985);
Spradling v. Harris, 13 Kan. App. 2d 595, 778 P.2d 365 (Ct. App. 1989); Michael v.
Hertzler, 900 P.2d 1144 (Wy o. 1995).
304
No State Interventio
Paternal Grandparents, Mother, Father, and Children had a close relationship; they
often baby-sat and let Children spend the night.
However, Grandparents disapproved of how Mother and Father disciplined Childre

Grandfather converting short trips with Children into long excursions, without Par
Grandfather also did not approve of Mother; on one occasion Grandfather cursed M
bowling alley at which Father worked, fired his son, then opposed Father's unemp
threatened to buy Mother and Father's family cemetery lots in the family plot.
After these rifts developed, Mother and Father stopped associating with Grandparen
sought court-ordered visitation under statute that allowed reasonable grandparent v
Overriding Parents' wishes, the trial judge ordered extensive grandparent visitation
supreme court, which reversed, holding the statute was unconstitutional under the
necessity of addressing the constitutionality of the statute under the federal constitu
The state supreme court also quoted Bennett v. Jeffreys, 40 N.Y.2d 543, 356 N.E.2
[I]t is not within the power of a court, or, by delegation of the Legislature or court, a social ag
make a better decision or disposition. The State is parens patriae and alway s has been, but it h
existing constitutional principles, be powerless to supplant parents except for grievous cause o
parental control would be fault or omission by the parent seriously affecting the welfare of a
the child's right to an education, and the like. . . .
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
305
Page 151
these expansive statutes, 90 most state courts read these broad statutes as
requiring some showing of disruption to the nuclear family or harm to justify
the intrusion on parents' liberty rights;91 by so doing, courts may avoid federal
constitutional challenges to these statutes. 92
Visitation Not in the Child's Best Interest
A parent might attack how a statute is applied. To prevail, petitioning

grandparents must show that visitation is in the best interest of the child. 93
State statutes, or case law, 94 may set specific guidelines concerning factors
courts should consider when analyzing what is in the best interest of a child.
Whatever those factors may be, grandparent visitation must have a stabilizing
influence on a child's life. 95
Conclusion
Grandparents, as well as other relatives, had visitation rights at common law

when there was a showing of a close relationship to the child and some
disruption to the family unit. Most states have codified these equitable
exceptions. Because the state's authority to order grandparent visitation over the
objections of a child's parent comes from the state's parens patriae power, the
courts ground their decisions upon the best-interest-of-the-child standard. Courts
use this standard, as well as construe state statutes, to limit the state's power;
statutory law pertaining to grandparent visitation, as well as the case law that
applies it, has oftentimes survived various constitutional challenges.
90 Lehrer v. Davis, 214 Conn. 232, 571 A.2d 691 (1990); Bailey v. Menzie, 542
N.E.2d 1015 (Ind. Ct. App. 1989); King v. King, 828 S.W.2d 630 (Ky. 1992);
Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993); Preston v. Mercieri, 133 N.H. 36,
573 A.2d 128 (1990); R. T. v. J.E., 277 N.J. Super. 595, 650 A.2d 13 (Super. Ct. Ch.
Div. 1994).
91 Emanuel S. v. Joseph E., 78 N.Y.2d 178, 577 N.E.2d 27 (1991); Hawk v. Hawk, 855 S.
306
W.2d 573 (Tenn. 1993); Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993);
VanCleve v. Hemminger, 141 Wis. 2d 543, 415 N.W.2d 571 (Ct. App. 1987).
92But see Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); Brooks v. Parkerson, 265 Ga. 189,
454 S.E.2d 769 (1995); King v. King, 828 S.W.2d 630 (Ky. 1992).
93 Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (Ct. App. 1990); Harley v.
Druzba, 148 Misc. 2d 564, 560 N.Y.S.2d 959 (Sup. Ct. 1990). Also see the discussion of the
statutes and case law on grandparent visitation above.
94 Lingwall v. Hoener, 108 Ill. 2d 206, 483 N.E.2d 512 (1985); Baker v. Perkins, 774
S.W.2d 129 (Ky. Ct. App. 1989); Shempp-Cook v. Cook, 455 N.W.2d 216 (N.D. 1990);
Ingram v. Ingram, 814 P.2d 1052 (Okla. Ct. App. 1991); Machado v. Uri, 94 Or. App. 731,
767 P.2d 106 (Ct. App. 1989); In re Marriage of Pointer, 112 Or. App. 511, 829 P.2d 1016
(Ct. App. 1992); Johnson v. Deisenger, 404 Pa. Super. 41, 589 A.2d 1160 (Super. Ct. 1991);
Strouse v. Olson, 397 N.W.2d 651 (S.D. 1986).
95 Loftin v. Smith, 590 So. 2d 323 (Ala. Civ. App. 1991); Ly ons v. Ly ons, 228 Ill. App. 3d,
591 N.E.2d 1006 (App. Ct. 1992); In re Marriage of Weddel, 553 N.E.2d 213 (Ind. Ct.
App. 1990); In re Marriage of Woodley, 474 N.W.2d 815 (Iowa Ct. App. 1991); In re
Adoption of J.M.U., 16 Kan. App. 2d 164, 819 P.2d 1244 (Ct. App. 1991); Kerns v.
Southern, 100 N.C. App. 664, 397 S.E.2d 651 (Ct. App. 1990); In re Pennington, 55 Ohio
App. 3d 99, 562 N.E.2d 905 (Ct. App. 1990); Drennen v. Drennen, 52 Ohio App. 3d 121,
557 N.E.2d 149 (Ct. App. 1988).
307
Page 152
Visitation Rights of Individuals Outside the Nuclear Family
The chart in Appendix M lists the statutory rights given to third parties. This
section reviews the rights of certain nonrelated individuals to seek visitation.
Relatives
Thirteen states have statutes that grant interested third parties the right to seek
visitation. 96 However, the third party must show that he or she has a real
interest in the outcome of the case. Nonrelated parties most likely to show a real
interest are stepparents, 97 and siblings or stepsiblings who have established a
relationship with a child. 98 The standard generally used is whether the
visitation is in the child's best interest. 99
Cohabitants, et al. 100
Most courts hold that homosexual or heterosexual former cohabitants cannot

seek visitation rights because, as a matter of law, such persons cannot establish
an in-loco-parentis relationship, which is recognized as being part of the
standing rubric. 101 There is also case law holding that other individuals who
cared for a child may not be permitted to seek visitation rights. 102
A minority of courts do recognize that cohabitants may have standing, 103 and in
some states a third party may be able to resort to common law. 104 For
96 Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota,

Nebraska, New York, Texas, Washington, and West Virginia.
97See Chapter 10.
98See, e.g., Scruggs v. Saterfiel, 693 So. 2d 924 (Miss. 1997) (claim of stepsibling
visitation denied); L. v. G., 203 N.J. Super. 385, 497 A.2d 215 (Super. Ct. Ch. Div. 1985).
See also Richard S. Victor et al., Statutory Review of Third-Party Rights regarding Custody,
308
Visitation and Support, 25 FAM. L.Q. 19, 23 (Spring 1991).
99 Wishart v. Bates, 531 So. 2d 955 (Fla. 1988).
100See In re Halvorsen, 521 N.W.2d 725 (Iowa 1994) (cohabitant could not be ordered to
pay child support).
101In re Marriage of Gay den, 229 Cal. App. 3d 1510, 280 Cal. Rptr. 862 (Ct. App. 1991);
Nancy S. v. Michele G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (Ct. App. 1991); Tay lor
v. Kennedy, 649 So. 2d 270 (Fla. Dist. Ct. App. 1994); In re Paternity of E.M., 654 N.E.2d
890 (Ind. Ct. App. 1994); In re Bruce, 522 N.W.2d 67 (Iowa 1994); In re Marriage of
Freel, 448 N.W.2d 26 (Iowa 1989); C.M. v. P.R., 420 Mass. 220, 649 N.E.2d 154 (1995);
McGuffin v. Overton, 214 Mich. App. 94, 542 N.W.2d 288 (Ct. App. 1995), appeal
dismissed, 546 N.W.2d 256 (Mich. 1996); Alison D. v. Virginia M., 155 A.D.2d 11, 552
N.Y.S.2d 321 (App. Div. 1990); D.G. v. D.M.K., 557 N.W.2d 235 (S.D. 1997); Cooper v.
Merkel, 470 N.W.2d 253 (S.D. 1991); Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997); see
generally Alan Stephens, Annotation, Parental Rights of Man Who Is Not Biological or
Adoptive Father of Child but Was Husband or Cohabitant of Mother When Child Was
Conceived or Born, 84 A.L.R. 4th 655 (1991).
102In re Ash, 507 N.W.2d 400 (Iowa 1993); In re Hood, 252 Kan. 689, 847 P.2d 1300
(1993); Bessette v. Saratoga County Comm'r, 209 A.D.2d 838, 619 N.Y.S.2d 359 (App.
Div. 1994).
103In re Hirenia C., 18 Cal. App. 4th 504, 22 Cal. Rptr. 2d 443 (Ct. App. 1993); A.C. v.
C.B., 113 N.M. 581, 829 P.2d 660 (Ct. App. 1992); In re Ronald F.F., 117 A.D.2d 332, 502
N.Y.S.2d 823 (App. Div. 1986).
104In re Custody of D.M.M., 137 Wis. 2d 375, 404 N.W.2d 530 (1987).
309
Equitable Aw
Two women shared a committed relationship for over ten years. They decided to h
Both women were present during labor and delivery, and Woman took three weeks
both of them, and both women were named Child's parents in a church ceremony.
Child knew Woman's parents as his grandparents, and Woman financially supporte
Woman, and Child moved to Wisconsin nine years into the relationship so Woma
over. Mother and Child moved out of the house. One year later, Mother informed W
filed for custody and visitation rights so she could see Child. Mother filed for sum
Even with evidence that Child considered Woman his parent, the circuit court relu
partners. Woman appealed. The state supreme court granted the petition of Child's
there was no evidence that Mother was unfit, and that the applicable visitation stat
hold that the visitation statute did not supplant the court's equitable powers to act
writing as follows:
A circuit court may determine whether visitation with Holtzman is in the child's best interest i
child; and if Holtzman proves a significant triggering event by demonstrating that Knott has in
the court promptly after Knott's interference.
In re the Custody of H.S.H.-K.: Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2
instance, a court may evoke equitable jurisdiction to award visitation when a paren
Conclusion
There is an evolving body of law that gives third parties child visitation rights. On
law does not recognize a nonrelated third party's right to seek visitation, as the cou
105In re Custody of H.S.H.-K; Holtzman v. Knott, 193 Wis. 2d 649, 533 N.W.2d 419 (1
310
311
Page 154
who may visit a child. Courts block most nonrelated third-party access by
holding that these individuals do not have standing to seek visitation. Standing
is very much a policy issue; as the concept of what constitutes a family changes,
so might decisions about those permitted to assert standing.
Interference with Third-Party Visitation
A state court may permit several different causes of action and remedies to
enforce visitation orders. Although a noncustodial parent's visitation order may
be afforded more types of protection, 106 third parties who are faced with a
custodial parent's interference with a visitation order should also have some
recourse for enforcement.
This section describes the types of conduct for which courts have traditionally
provided remedies.
Nature of Cause of Action
There are a number of infractions a parental custodian may commit when a third
party exercises rights awarded under a visitation order. These infractions range
from minor infringements to egregious encroachments. The civil remedies,
designed to match the type of infraction, also vary from mild to more heavy-
handed court interventions.
Common Infractions
Common infractions include a custodial parent failing to make a child available

for visitation in a consistent manner, and limiting telephone contact. In these
situations, a third party may petition the court to refine the visitation order by
312
1. specifying the time and place of visitation, or
2. requesting makeup visitation time. 107
Egregious Encroachments
A custodial parent may contravene a visitation order by totally denying a third

party's visitation or telephone contact with a child. In this situation, a third
party may petition for more supervision by the court, in the following forms:
106See Joy M. Feinberg & Lori S. Loeb, Custody/Visitation Interference:

Alternative Remedies, 12 J. AM. ACAD. MATRIM. LAW. 271 (1994); Edward B.
Borris, Torts Arising Out of Interference with Custody and Visitation, 7 DIVORCE
LITIG. 192 (Sept. 1992).
107 Joy M. Feinberg & Lori S. Loeb, Custody/Visitation Interference: Alternative
Remedies, 12 J. AM. ACAD. MATRIM. LAW. 271, 27576 (1994).
313
Page 155
1. transfers at neutral locations, or
2. attorneys' fees for contempt of the court order. 108
A third party could also apply for custody if there is evidence that the parent is
unfit. At some point, however, the court may decide that instead of forcing a
custodial parent to allow for visitation with a nonrelated third party, it may be
in the child's best interest to disallow visitation. In this case, a court may
reverse a visitation award, on the ground that the asperity between the parent
and the third party makes visitation no longer in the best interest of the child.
Conclusion
America's mores regarding family structure are threefold. Our society has always
accepted the right of a parent to rear a child. Society is equally accepting of
compassionate family elders who wish to raise a child when that child's family
is in need. Finally, whenever a child is unduly hurting or needy due to parental
unfitness, our society is willing to take the child from a parent's custody, and
make decisions on that child's behalf. However, if a parent can prove that he or
she is fit to parent, our society will relinquish the child, and further decision-
making power over the child, back to the parent.
Although society approves of nonparents assisting a child, the American judicial

system will issue custody and visitation orders on that person's behalf only if
the adult has "standing." Standing is a potentially confusing concept, which
represents a recognized legal concern for an injury that the courts have power to
remedy. For instance:
1. Substantive standing. A person must show an injury, or a real interest in the

outcome of a case. An adult may prove this by showing that he or she has
become a psychological parent to a child, and that his or her relationship to the
314
child would be injured absent court intervention and remedy.
2. Legal Standing. A state legislature, by statute, can define an injury and

appropriate remedy, thereby authorizing courts to intervene. This is the only
way individuals who are not parents by blood to a child may be able to assert a
legal right upon which to seek custody of, or visitation with, a child.
108 Joy M. Feinberg & Lori S. Loeb, Custody/Visitation Interference: Alternative

Remedies, 12 J. AM. ACAD. MATRIM. LAW. 271, 276 (1994).
315
Page 156
Grandparent visitation statutory law is the most common type of thirdparty

visitation law; the applicable statutes may also prescribe what result should
occur when the child is subsequently adopted. A parent might challenge such
court-ordered visitation, however, on the grounds that the grandparent has no
substantive or legal standing; the parent may argue that the statute did not
contemplate granting relief to such a person or in such a situation. A parent may
attack the statute as unconstitutional, on the grounds that the nuclear family unit
provides sufficient care. A parent may also argue that visitation will harm the
child.
There are limits, however, to what public policy will allow. A minority of state
legislatures have authorized visitation to individuals outside the family unit.
With very little exception, visitation rights of individuals other than
grandparents must be based upon both substantive and legal standing. Finally,
courts can provide remedies for violations of visitation orders.
316
Page 157
ABOUT THE AUTHOR
John C. Mayoue is a partner in the law firm of Warner, Mayoue & Bates, P.C.,
in Atlanta, Georgia. He is the author of How to Plan and Conduct Family Law
Discovery (ICLE, 1994), a coauthor of Georgia Jurisprudence, Family Law
(West Group, 1995), and a contributing author to The Joy of Settlement: The
Family Lawyer's Guide to Effective Negotiations and Settlement Strategies
(ABA, 1997).
Mr. Mayoue has conducted numerous continuing legal education seminars,

institutes, and lectures on various family law topics. He is also a former trustee
of the Institute of Continuing Judicial Education (199096) and a former chair of
the Family Law Section of the State Bar of Georgia (199293).
Mr. Mayoue received his B.A. from Transylvania University and his J.D. from
Emory University. He is a fellow of the American Academy of Matrimonial
Lawyers and was a member of the Board of Governors from 1991 to 1993. He is
a member of the editorial board of the American Judicature Society, a member of
the Supreme Court of Georgia Equality Commission, and a member of the
Commission on Family Courts.
317
APPENDIX A
MARRIAGE COUNSELOR TESTIMONIAL PRIVILEGE
Primarily listing those states with a testimonial privilege for marriage counselors;
testimonial privilege for counselors (C), where noted.
STATE AUTHORITY
Alabama (C) Ala. Code 34-8A-21
Arkansas (C) Ark. Code Ann. 17-24-308
Colorado Colo. Rev. Stat. 13-90-107
Connecticut Conn. Gen. Stat. 52-1464
Georgia Ga. Code Ann. 24-9-21(7)
Idaho (C) Idaho Code 54-3410
Indiana Ind. Code Ann. 25-23.6-9-1
Iowa Iowa Code Ann. 622.10
Maine (C) Me. Rev. Stat. Ann. tit. 32, 13862
Michigan Mich. Comp. Laws Ann. 339.1507
Mississippi (C) Miss. Code Ann. 73-30-17
Missouri (C) Mo. Ann. Stat. 337.540
Montana (C) Mont. Code Ann. 37-23-301
Nevada Nev. Rev. Stat. 49.246 et seq.
New Jersey N.J. Stat. Ann. 45:8B-29
North Carolina N.C. Gen. Stat. 8-53.5
Oklahoma Okla. Stat. Ann. tit. 59, 1925.11
Oregon (C) Or. Rev. Stat. 40.262
South Carolina S.C. Code Ann. 19-11-95
South Dakota (C) S.D. Codified Laws 36-32-27
Tennessee Tenn. Code Ann. 63-22-114
Utah Utah Code Ann. 58-39-10
Virginia (C) Va. Code Ann. 8.01-400.2
Washington (C) Wash. Rev. Code Ann. 18.19.180
West Virginia (C) W. Va. Code 30-31-13
318
Wisconsin Wis. Stat. Ann. 905.04
Wy oming Wy o. Stat. Ann. 33-38-109
319
APPENDIX B
SOCIAL WORKER TESTIMONIAL PRIVILEGE
Primarily listing states with a separate privilege for social workers; also listing sta
workers in a general statute (SW), where noted.
STATE AUTHORITY
Alaska Alaska Stat. 08.86.200
Arkansas Ark. Code Ann. 17-39-107
California (SW) Cal. Evid. Code 1010(c)
Idaho Idaho Code 54-3213
Illinois (SW) 735 Ill. Comp. Stat. 5/8-802
Indiana Ind. Code Ann. 25-23.6-6-1
Kentucky Ky. R. Evid. 506
Louisiana (SW) La. Code Evid. Ann. art. 510
Maine Me. Rev. Stat. Ann. tit. 20-A, 4008
Mary land Md. Code Ann., Cts. & Jud. Proc. 9-121
Massachusetts Mass. Gen. Laws Ann. ch. 112, 135 et seq.
Missouri Mo. Ann. Stat. 337.636
New Jersey N.J. Stat. Ann. 45:15BB-13
New Mexico N.M. Stat. Ann. 61-31-24
New York N.Y. C.P.L.R. 4508
Ohio Ohio Rev. Code Ann. 2317.02(G)
Oregon Or. Rev. Stat. 40.250
South Dakota S.D. Codified Laws 36-26-30
320
Texas Tex. R. Evid. 510
Utah Utah Code Ann. 58-35-12
Vermont Vt. R. Evid. 503
Virginia Va. Code Ann. 8.01-400.2
Washington Wash. Rev. Code Ann. 18.19.180
West Virginia W. Va. Code 30-30-12
Wy oming Wy o. Stat. Ann. 33-38-109
321
APPENDIX C
CLERGY-COMMUNICANT TESTIMONIAL PRIVILEGE
As the privilege relates to divorce (civil) litigation.
STATE AUTHORITY
Alabama Ala. Code 12-21-166
Alaska Alaska R. Evid. 506
Arizona Ariz. Rev. Stat. Ann. 12-2233
Arkansas Ark. R. Evid. 505
California Cal. Evid. Code 912, 917, 1030 et seq.
Connecticut Conn. Gen. Stat. Ann. 52-146(b)
Delaware Del. R. Evid. 505
Florida Fla. Stat. Ann. 90.505
Georgia Ga. Code Ann. 24-9-22
Hawaii Haw. R. Evid. 506
Idaho Idaho Code 9-203(3)
Illinois 735 Ill. Comp. Stat. 5/8-803
Indiana Ind. Code Ann. 31-1-14-5(4)
Louisiana La. Rev. Stat. Ann. 13:3734.1
Maine Me. R. Evid. 505
Massachusetts Mass. Gen. Laws Ann. ch. 233, 20A
Michigan Mich. Stat. Ann. 27A.2156
Minnesota Minn. Stat. Ann. 595.02(1)(c)
Missouri Mo. Ann. Stat. 491.060(4)
Montana Mont. Code Ann. 26-1-804
Nebraska Neb. Rev. Stat. 27-506
Nevada Nev. Rev. Stat. 49.255
New Hampshire N.H. Rev. Stat. Ann. 516:35
New Jersey N.J. Stat. Ann. 2A:84A-23
322
(table continued on next page)
323
(contd.)
Appendix C
STATE AUTHORITY
New Mexico N.M. R. Evid. 11-506
New York N.Y. C.P.L.R. 4505
North Dakota N.D. R. Evid. 505
Ohio Ohio Rev. Code Ann. 2317.02(C)
Oklahoma Okla. Stat. Ann. tit. 12, 2505
Pennsy lvania 42 Pa. Cons. Stat. Ann. 5943
Rhode Island R.I. Gen. Laws 9-17-23
South Dakota S.D. Codified Laws 19-13-16 et seq.
Texas Tex. R. Evid. 505
Utah Utah Code Ann. 78-24-8(3)
Virginia Va. Code Ann. 8.01-400
Washington Wash. Rev. Code Ann. 5.60.060(3)
West Virginia W. Va. Code 57-3-9
Wy oming Wy o. Stat. Ann. 1-12-101(a)(ii)
324
APPENDIX D
ACCOUNTANT-CLIENT TESTIMONIAL PRIVILEGE
As the privilege relates to divorce litigation.
STATE AUTHORITY
Arizona Ariz. Rev. Stat. Ann. 32-749
Idaho Idaho Code 9-203A
Indiana Ind. Code Ann. 25-2-1-23
Louisiana La. Rev. Stat. Ann. 37:87
Mississippi Miss. Code Ann. 73-33-16
Missouri Mo. Ann. Stat. 326.151
Nevada Nev. Rev. Stat. Ann. 49.126.205
Pennsy lvania 63 Pa. Cons. Stat. Ann. 9.11a
Texas Tex. Rev. Civ. Stat. Ann. art. 41a-1, 26
325
APPENDIX E
SYNOPSIS OF THE GOVERNING WIRETAP STATUTES IN EACH OF THE
(SECTIONS REFER TO OFFICIAL STATUTORY COMPILATIONS.)
Civil
State Criminal Penalty Provided Remedies Application of Consent D
Provided
Alabama 13A-11-31 Eavesdropping 13A-11-32 13A-11-30(1) One party to co
Surveillance 13A-11-35 Divulging must consent
Alaska 42.20.330 42.20.300 (6)(b) One pa
communication must co
13-3005, 13-3012(9) One
Arizona 13-3005
communication must co
Arkansas 23-17-107, 5-60-120 5-60-120(a) Party to commu
prior consent of party to comm
California 631(a), 629.34 637.2, 631(a) All parties to commun
629.2 consent
Colorado 18-9-303 18-9-309.5 18-9-303 Sender or rec
Connecticut 53a-189 53-187(a) One party to com

must consent
Delaware 1335, 1336(b) 1336 (w) 1335(a)(4) Consent of al
(1)(2)(3)
1 This chart originally appeared in Allan H. Zerman and Cary J. Mogerman, ''Wiretapping a
Eavesdropping and Their Application in Matrimonial Cases," Volume 12, Journal of the Amer
permission of the American Academy of Matrimonial Lawy ers, as well as the authors, and
326
(table continued from previous page)
Civil
State Criminal Penalty Provided Remedies Application of Consent Defense
Provided
934.03(2)(a), (3)(d) All parties to communication
Florida 934.03 (4)(a) 934.10
must consent
Georgia 16-11-62, 16-11-69 16-11-62 All parties to communication must
consent
Hawaii 803.42(a) 803.48 803-42(b)(3) One party to communication must
consent
Idaho 18-6702 18-6709 18-6702(2)(d) One party to communication mus
consent
5/14-2 Consent of all parties to conversation
Illinois 5/14-4 5/14-6 *Case law say s if y ou are a party to conversation
*Note that 5/14-2 enacted in 1961 allowed one
party consent
Indiana 35-33.5-5-5 35-33.5-5- 35-33.5-1-5(2) Consent of sender or receiver
4
Iowa 727.8, 903.1 727.8 One party to communication or one who is
openly present and participating or listening
21-4001(4) 21-4001 Eavesdropping 21-4002 Privacy One
Kansas Eavesdropping 21- 22-2518 party to communication must consent
4002(3) Privacy
327
(contd.)
Appendix E
State Criminal Penalty Provided Civil Remedies Application o

Provided
Kentucky 526.020, 526.030, 526.040, 526.050, 526.060 526.010 One part
Louisiana Title 15, ch. 10 1303B Title 15, ch. 10 Title 15, ch. 10 1
1312 communica
Maine 710.1 Interception 710.3 Disclosure 711 709 One party to co
Mary land 10-402(b) 10-410(a) 10-402(c)(3) Part

parties to comm
Massachusetts 99(C) 99(Q) 99(B)(4) All partie
Michigan 750.539, 750.539b Eavesdropping and 750.539h 750.539a(2)

surveillance 750.539c-f, 750.540
Minnesota 626A.02.4 626A. 13 626A.02.2(d) One p
Mississippi 97-25-53
Missouri 542.402 542.418 542.402.2(3) Party to
to commu
328
Criminal Penalty
State Civil Remedies Provided Application of
Provided
Montana 45-8-213(2) 45-8-213(1)(c) All par
86-702(2)(c) Party to communic
Nebraska 86-702, 86-707
con
Nevada 200.690(1)(a) 200.690(1)(b) 200.620(1)(a) Prior consent o
New 570-A:21 570-A:11 570-A:21-a Co
Hampshire
New Jersey 2A:156A-3, 2A:156A-24, 2A:156A-4(d) Party to communic
2A:156A-5 2A:156A-32 prior
New Mexico 30-12-1 30-12-11 30-12-1(c) One party to c
New York 250.05 250.00 One party to co
North 14-155 14
Carolina
North Dakota 12.1-15-02 12.1-15-02(3)(c) Party to commun
con
Ohio 2933.52(C) 2933.65(A) 2933.52(B)(4) One party to
329
(contd.)
Appendix E
State Criminal Penalty Provided Civil Remedies Application of Consent Defen

Provided
Oklahoma 176.3 176.4(5) Party to communication o
to communication consents
Oregon 165.543 133.739(1) 165.540(1)(a) One party to comm
must consent
Pennsy lvania 5703 5725 5704(4) All parties to communicati
Rhode Island 12-5.1-13
South 16-17-470
Carolina Eavesdropping and
Peeping Tom
South Dakota 23A-35A-20 23A-35A-20 One party to comm
must consent
39-13-601, 39-13-602, 39-13-601, 39-13- 39-13-604(b)(1) One party must co
Tennessee 39-13-604(c) 603 cellular or landline involved
Texas 123.002, 123.004 123.001(2) One party to communic

art. 18.20 sec. 16 consent
Utah 77-23a-4, 77-23a-10 77-23a-11 77-23a-4(7)(b) Party to commun

one party to communication con
330
Criminal Penalty Civil Remedies

State Application of Consent Defense
Provided Provided
Vermont
Virginia 19.2-62A 19.2-69 19.2-62B.2
Washington 9.73.080 9.73.060 9.73.030 All parties to communication mu
West 62-1D-3(b) 62-1D-12 62-1D-3(c)(2) Party to communication or o
Virginia communication consents
Wisconsin 968.31(1) 968.31 (2m)(a) 968.31(2)(e) Party to communication or o
(b)(c) communication consents
Wy oming 7-3-602 7-3-609 7-3-602 A(b)(iv) Party to communication or
communication consents
331
APPENDIX F
ADMISSIBILITY OF INTERCEPTED MATTER
STATE AUTHORITY
Alaska Alaska Stat. 12.37.110, 12.37.120
California Cal. Penal Code 631(c)
Connecticut Conn. Gen. Stat. 53-187(b)
Delaware Del. Code Ann. tit. 11, 1336(p)
Idaho Idaho Code 18-6705
Illinois 720 Ill. Comp. Stat. 5/14-5
Massachusetts Mass. Gen. Laws ch. 272, 99(D)(2)
Minnesota Minn. Stat. 626A.04, 626A.11
Missouri Mo. Rev. Stat. 542.420
Montana Mont. Code Ann. 45-8-213(e)
Nevada Nev. Rev. Stat. 179.500-05
New Hampshire N.H. Rev. Stat. Ann. 570-A:6
New Jersey N.J. Rev. Stat. 2A:156A-21
North Dakota N.D. Cent. Code 12.1-15-02
Ohio Ohio Rev. Code Ann. 2933.62.63
Oregon Or. Rev. Stat. 133.733, 133.735
Rhode Island R.I. Gen. Laws 12-5.1-10(c), 12-5.1-15
Tennessee Tenn. Code Ann. 40-6-304(g)(h), 40-6-307
Texas Tex. Code Crim. P. Ann. art. 18.20, 2
Utah Utah Code Ann. 77-23a-7
Washington Wash. Rev. Code 9.73.050
West Virginia W. Va. Code 62-1D-6
Wisconsin Wis. Stat. 968.29(3)(a)(b), 885.365
332
333
APPENDIX G
COMMON-LAW ALIENATION OF AFFECTIONS AND CRIMINAL CAUSES
Primarily listing states that have abolished both actions; also lists states that augm
criminal conversation (CC).
STATE AUTHORITY
Arizona (AA) Ariz. Rev. Stat. 25-341
Arkansas Ark. Code Ann. 16-118-106
California Cal. Civ. Code 43.5
Colorado Colo. Rev. Stat. 13-20-201 et seq.
Connecticut Conn. Gen. Stat. 52-572b, 52-572f
Florida Fla. Stat. Ann. 771.01 et seq.
Idaho (AA) O'Neil v. Schuckardt, 112 Idaho 472, 733 P.2d 693 (1987). (CC) Neal v. Neal, 1
Illinois AA disfavored: 740 Ill. Comp. Stat. 5/1 et seq.
CC disfavored: 740 Ill. Comp. Stat. 50/1 et seq.
Indiana Ind. Code 34-4-4-1 et seq.
Iowa (AA) Fundermann v. Mickelson, 304 N.W.2d 790 (Iowa 1981).
(CC) Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978).
Kansas (AA) Kan. Stat. Ann. 23-208
Kentucky Hoye v. Hoye, 824 S.W.2d 422 (Ky. 1992).
Louisiana (AA) Ohlausen v. Brown, 372 So. 2d 787 (La. Ct. App. 1979).
Maine (AA) Me. Rev. Stat. Ann. tit. 19, 167
Mary land (AA) Md. Code Ann., Fam. Law 3-103
(CC) Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980).
Massachusetts Mass. Gen. Laws ch. 207, 47B
Michigan Mich. Comp. Laws 600-2901
Minnesota Minn. Stat. 553.01 et seq.
Mississippi (CC) Saunders v. Alford, 607 So. 2d 1214 (Miss. 1992).
Missouri (CC) Thomas v. Siddiqui, 869 S.W.2d 740 (Mo. 1994).
334
Montana (AA) Mont. Code Ann. 27-1-601 et seq.
2See LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE
(1989 & Supp. 1996) (containing periodically updated summary of the status of criminal con
in various American jurisdictions).
335
(contd.)
Appendix G
STATE AUTHORITY
Nebraska Neb. Rev. Stat. 25-21.188
New Hampshire (AA) N.H. Rev. Stat. Ann. 460:2
(CC) Feldman v. Feldman, 125 N.H. 102, 480 A.2d 34 (1984).
New Jersey N.J. Stat. Ann. 2A:23-1
New Mexico AA disfavored: Thompson v. Chapman, 93 N.M. 356, 600 P.2d 302 (197
New York N.Y. Civ. Rights Law 80-a et seq.
North Dakota N.D. Cent. Code 14-02-06
Ohio Ohio Rev. Code Ann. 2305.29
Oklahoma (AA) Okla. Stat. tit. 76, 8.1
(CC) see Lynn v. Shaw, 620 P.2d 899 (1980).
Oregon Or. Rev. Stat. 30.840 et seq.
Pennsy lvania (AA) Pa. Stat. Ann. tit. 23, 1901 et seq.
(CC) Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976).
Rhode Island R.I. Gen. Laws 9-1-42
South Carolina (AA) Russo v. Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992).
(CC) S.C. Code Ann. 15-3-150
South Dakota Preserving AA: S.D. Codified Laws 20-9-7; see Pickering v. Pickerin
(CC) Pankrantz v. Miller, 401 N.W.2d 543 (S.D. 1987); Hunt v. Hunt, 309 N.W.2d
Tennessee (AA) Tenn. Code Ann. 36-3-701
(CC) Tenn. Code Ann. 39-13-508; see also Lentz v. Baker, 792 S.W.2d 71 (Tenn
Texas (AA) Tex. Fam. Code Ann. 1.107; see also Cluck v. Cluck, 712 S.W.2d 599 (Te
CC) Tex. Fam. Code Ann. 1.106
Utah (CC) Norton v. Macfarlane, 818 P.2d 8 (Utah 1991).
Vermont Vt. Stat. Ann. tit. 15, 1001 et seq.
Washington (AA) Wyman v. Wallace, 94 Wash. 2d 99, 615 P.2d 452 (1980).
(CC) Irwin v. Coluccio, 32 Wash. App. 510, 648 P.2d 458 (Ct. App. 1982).
West Virginia (AA) W. Va. Code 56-3-2a
Wisconsin Wis. Stat. 768.01 et seq.
Wy oming Wy o. Stat. Ann. 1-23-101 et seq.
336
337
APPENDIX H
CONFIDENTIAL OR PRIVILEGED NATURE OF FINANCIAL RECORDS
A listing of states that specifically outline when disclosure of financial records by fi

lists those states that imply that disclosures by financial institutions may be had, w
STATE AUTHORITY
Alabama Ala. Code 5-5A-43
Arizona Ariz. Rev. Stat. 6-129 et seq.
California Cal. Gov't Code 7476
Connecticut Conn. Gen. Stat. 36a-43
Illinois 205 Ill. Comp. Stat. 5/48.1
Maine Me. Rev. Stat. Ann. tit. 9-B, 162 et seq.
Mary land see Md. Code Ann., Fin. Inst. 1-205(e)
Massachusetts see Mass. Gen. Laws ch. 167 2 6
Nevada see Nev. Rev. Stat. 52.470
North Dakota N.D. Cent. Code 6-08.1-03
Ohio see Ohio Rev. Code Ann. 709 (evid. & witn.)
Rhode Island see R.I. Gen. Laws 9-17-5.1
Tennessee Tenn. Code Ann. 45-10-101 et seq.
Utah Utah Code Ann. 78-27-45 et seq.
West Virginia W. Va. Code 31A-4-35
Wisconsin see Wis. Stat. 891.24
338
APPENDIX I
STATES THAT RECOGNIZE COMMON-LAW MARRIAGE
as of May, 1997.
STATE AUTHORITY
Alabama Crosson v. Crosson, 668 So. 2d 868 (Ala. Civ. App. 1995);
Etheridge v. Yeager, 465 So. 2d 378 (Ala. 1985).
Carter v. Firemen's Pension Fund, 634 P.2d 410 (Colo. 1981);
Colorado
Klipfel's Estate v. Klipfel, 41 Colo. 40, 92 P. 26 (1907).
District of Columbia Coates v. Watts, 622 A.2d 25 (D.C. 1993).
Georgia Beals v. Beals, 203 Ga. App. 81, 416 S.E.2d 301 (Ct. App. 1992).
On or after 1/1/97: no further common-law marriages. H.B. 1278 (19
Idaho Idaho Code 32-201 et seq.; McCoy v. McCoy, 125
Idaho 199, 868 P.2d 527 (Ct. App. 1994).
Iowa Marriage of Winegard, 257 N.W.2d 609 (Iowa 1977);
In re Estate of Fisher, 176 N.W.2d 801 (Iowa 1970).
Kansas Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329 (1977);
In re Estate of Mazlo, 211 Kan. 217, 505 P.2d 762 (1973).
Montana In re Estate of McClelland, 168 Mont. 160, 541 P.2d 780 (1975);
Estate of Swanson, 160 Mont. 271, 502 P.2d 33 (1972).
Oklahoma In re Estate of Bouse, 583 P.2d 514 (Okla. Ct. App. 1978).
Pennsy lvania In re Estate of Garges, 474 Pa. 237, 378 A.2d 307 (1977);
Bowden v. Workmen's Compensation Bd., 31 Pa. 476, 376 A.2d 1033 (1
Rhode Island Sardonis v. Sardonis, 106 R.I. 469, 261 A.2d 22 (1970).
Owens v. Owens, 320 S.C. 543, 466 S.E.2d 373 (1996);
South Carolina Jeanes v. Jeanes, 255 S.C. 161, 177 S.E.2d 537 (1970);
In re Greenfield's Estate, 245 S.C. 595, 141 S.E.2d 916 (1965).
Texas Navarro v. Collora, 574 S.W.2d 65 (Tex. 1978);
Warren v. Kyle, 565 S.W.2d 313 (Tex. App. 1978).
339
APPENDIX J
STATES THAT RESTRAIN THE COMMON-LAW BREACH OF PROMISE T
Primarily listing states that abolish heartbalm actions; also lists those states that l
noted.
STATE AUTHORITY
California Cal. Civ. Code 43.4 et seq.
Colorado Colo. Rev. Stat. 13-20-202 et seq.
Connecticut Conn. Gen Stat. 52-572(b)
Florida Fla. Stat. Ann. 771.01 et seq.
Illinois ( ) 740 Ill. Comp. Stat. 15/1 et seq.

see Wildey v. Springs, 840 F. Supp. 1259 (N.D. Ill. 1994), rev'd on other grounds
Indiana Ind. Code 34-4-4-1 et seq.
Mary land Md. Code Ann., Fam. Law 3-102 et seq.
Massachusetts Mass. Gen. Laws ch. 207, 47A
Michigan Mich. Comp. Laws 600.2901
Minnesota Minn. Stat. 553.01 et seq.
Montana Mont. Code Ann. 27-1-601 et seq.
New Hampshire N.H. Rev. Stat. Ann. 508:11
New Jersey N.J. Stat. Ann. 2A:23-1
New York N.Y. Civ. Rights Law 80(a) et seq.
see Bruno v. Guerra, 146 Misc. 2d 206, 549 N.Y.S.2d 925 (Sup. Ct. 1990).
Ohio Ohio Rev. Code Ann. 2305.29
Pennsy lvania Pa. Stat. Ann. tit. 23, 1901 et seq.
South Carolina S.C. Code Ann. 32-3-10(3)
Tennessee ( ) Tenn. Code Ann. 36-3-401 et seq.
Utah Jackson v. Brown, 904 P.2d 685 (Utah 1995).
340
3See LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE
app. K (1989 & Supp. 1996) (containing periodically updated summary of breach-of-marria
American jurisdictions).
341
(contd.)
Appendix J
STATE AUTHORITY
Vermont Vt. Stat. Ann. tit. 15, 1001 et seq.
Washington ( ) Stanard v. Bolin, 88 Wash. 2d 614, 565 P.2d 94 (1977).
W. Va. Code 56-3-2a
West Virginia
see Bridgeman v. Bridgeman, 182 W. Va. 677, 391 S.E.2d 367 (1990).
Wisconsin Wis. Stat. 768.01
see Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974).
Wy oming Wy o. Stat. Ann. 1-23-101 et seq.
342
APPENDIX K
STEPPARENT STATUTORY OBLIGATIONS
Listing state statutes imposing a duty on stepparents to support their stepchildren.
STATE AUTHORITY
Delaware Del. Code Ann. tit. 13, 501(b)
Hawaii Haw. Rev. Stat. 577-4
Iowa Iowa Code 252A.2(3)
Missouri Mo. Rev. Stat. 568.040
Nevada Nev. Rev. Stat. 62.044
New Hampshire N.H. Rev. Stat. Ann. 546-A:1 et seq.
New Jersey N.J. Stat. Ann. 30:4C-2
New York N.Y. Soc. Serv. Law 101
Oklahoma Okla. Stat. tit. 10, 15
South Dakota S.D. Codified Laws 25-7-8
Utah Utah Code Ann. 78-45-4.1
Washington Wash. Rev. Code 26.16.205
343
APPENDIX L
STEPPARENT VISITATION
Primarily listing those states with explicit stepparent visitation; also listing states
under a general statute (3D), where noted.
STATE AUTHORITY
Alaska (3D) Alaska Stat. 25.24.150(a)
California Cal. Fam. Code 3101
Connecticut (3D) Conn. Gen. Stat. 46b-59
Hawaii (3D) Haw. Rev. Stat. 571-46(7)
Illinois (3D) 750 Ill. Comp. Stat. 5/601(b)(2)
Kansas Kan. Stat. Ann. 60-1616(b)
Louisiana (3D) La. Rev. Stat. Ann. 9:344
Maine (3D) Me. Rev. Stat. Ann. tit. 19, 752(6)
Michigan (3D) Mich. Comp. Laws 722.27(1)(b)
Minnesota (3D) Minn. Stat. 257.022(2b)
Mississippi Miss. Code Ann. 93-16-1 et seq.
Nebraska (3D) Neb. Rev. Stat. 42-364(10)
New Hampshire N.H. Rev. Stat. Ann. 458:17(VI)
New York (3D) N.Y. Dom. Rel. Law 240, 72
Ohio Ohio Rev. Code Ann. 3109.05.1(B)(1)
Oklahoma Okla. Stat. tit. 10, 5.A, 60.16
Oregon (3D) Or. Rev. Stat. 109.119 et seq.
Texas (3D) Tex. Fam. Code Ann. 153.002 ( 17.4)
Virginia Va. Code Ann. 20-107.2
Washington (3D) Wash. Rev. Code 26.09.240
West Virginia (3D) W. Va. Code 48-2-15
Wisconsin Wis. Stat. 767.245
344
345
APPENDIX M
RIGHTS OF THIRD PARTIES UPON FAMILIAL DIVORCE
For grandparents and/or great-grandparents only, where no other notation; for third
STATE CUSTODY
Alabama
Alaska (3D) Alaska Stat. 25.24.150(a)
Arizona (3D) Ariz. Rev. Stat. 25-331
Arkansas
California Cal. Fam. Code 3103,
(3D) 3040 et seq.
Colorado (3D) Colo. Rev. Stat. 14-10-123
Connecticut (3D) Conn. Gen. Stat. 46b-57
Delaware
Florida
Georgia (3D) Ga. Code Ann. 19-9-1 et seq.
Hawaii (3D) Haw. Rev. Stat. 571-46(2)
Idaho
Illinois (3D) 750 Ill. Comp. Stat. 5/601(b)(2)
Indiana
Iowa
Kansas (S) Kan. Stat. Ann. 60-1610
Kentucky (3D) Ky. Rev. Stat. Ann. 403.420
Louisiana (3D) La. Civ. Code Ann. art. 131A.(3) et seq.
Maine (3D) Me. Rev. Stat. Ann. tit. 19, 752(6)
346
347
(contd.)
Appendix M
STATE CUSTODY
Mary land
Massachusetts (3D) Mass. Gen. Laws ch. 208, 28
Michigan (3D) Mich. Comp. Laws 722.27(1)(a)
Minnesota (3D) Minn. Stat. 518.156
Mississippi (3D) Miss. Code Ann. 93-5-24(1)(e)
Missouri (3D) Mo. Rev. Stat. 452.375(5)(3)
Montana (3D) Mont. Code Ann. 40-4-211(4)(b)
Nebraska (3D) Neb. Rev. Stat. 42-364(10)
Nevada (3D) Nev. Rev. Stat. 125.480(3)
New Hampshire
New Jersey
New Mexico (3D) N.M. Stat. Ann. 40-4-9.1(K)
New York (3D) N.Y. Dom. Rel. Law 240
North Carolina (3D) N.C. Gen. Stat. 50-13.1
North Dakota (3D) N.D. Cent. Code 14-09-06.1
Ohio (3D) Ohio Rev. Code Ann. 3109.04(D)(2)
Oklahoma (3D) Okla. Stat. tit. 10, 21.1(A)
Oregon (3D) Or. Rev. Stat. 109.119 et seq.
Pennsy lvania (3D) 42 Pa. Cons. Stat. 1915.6
Rhode Island
348
STATE CUSTODY
South Carolina (3D) S.C. Code Ann. 20-7-420(20)
South Dakota
Tennessee (3D) Tenn. Code Ann. 36-6-101(a)
Texas Tex. Fam. Code Ann. 102.004
(3D) 102.003
Utah
Vermont
Virginia (3D) Va. Code Ann. 20.124.1 et seq.
Washington (3D) Wash. Rev. Code 26.10.030
West Virginia
Wisconsin
Wy oming
349
Page 182
INDEX
accountant-client testimonial privilege, 1920
confidentiality of, 19, 21
statutory basis for, 19, 163
waiver of, 20
accountants
testimony by, 15
as valuation experts, 67
adoption
effect on grandparent visitation of, 135, 146148
notification of, 148
by stepparent, 135
timing of, 147148
350
adultery
as crime, 6, 7
as intentional infliction of emotional distress, 46
AIDS, 50
alienation of affections/criminal conversation, 7273, 171172
American Society of Appraisers (ASA), 67, 69
antiheartbalm acts, 114116
The Appraisal Foundation, 67, 69
appraisers
competency of, 6869
independence of, 69
of personal property, 67
of real property, 67
standards for, 67, 6869
assault and battery, 46, 4950
battered-partner syndrome, 48
351
assets
dissipated, 8590
family access to business, 96
intangible, 100
attorneys' fees
as invalid marital expense, 89
for Title III violations, 32
as valid marital expense, 88
battered-partner syndrome, 48
battery, 4950
best-interest-of-the-child doctrine
in custody proceedings, 130133, 139
for visitation rights, 134, 145146, 151
breach of the marriage promise
reasons for abolition of, 114116, 119
352
state statutes restraining, 175176
business institutions
discovery limits for, 100102
financial record confidentiality for, 97, 173
marital assets in, 9092, 93
no self-incrimination privilege of, 6
privacy rights of, 96, 97100
buy-sell agreements, 100
cellular communications, 28
certified public accountants (CPAs), 19, 67
children
adopted by stepparent, 135
conceived during HIV transmission, recovery for, 51
witnessing abuse, recovery for, 49
wrongful death by, recovery for, 71
353
clergy, misconduct by, 75, 76
clergy-communicant testimonial privilege, 1819
applicability to nonordained clergy, 18
confidentiality of, 20
relationship in, 21
waiver of, 19
cohabitation relationships, 110113
agreements for, 108109
domestic partnerships, 112, 113114
equitable remedies in, 112113
illicit, 7
implied partnership agreement in, 111112
intentional infliction of emotional distress during, 49
visitation rights after dissolution of, 152
common-law marriages, 109110
intentional infliction of emotional distress during, 49

354
state recognition of, 174
communications
electronic, 27
interception of, 28, 2930
oral, 27
wire, 2729
355
Page 183
Communications Assistance for Law Enforcement Act, 26
confidential records, 6566
constructive trusts, 90
cordless telephone communications
interception of, 28, 29, 36
penalties for interception of, 31
corporations.
See also business institutions
equitable remedies against, 91
no self-incrimination privilege for, 6
piercing the corporate veil of, 91
as third parties in divorce proceedings, 9091
credit reports, 6566
criminal prosecution, threat of, 5, 6
custody proceedings
356
best-interest-of-the-child doctrine in, 130133, 139
challenging petitions in, 141143
criminal accusations in, 7
elements of custody process, 129
parental-right doctrine in, 129130, 139140
sanctions in, 13
standing in, 126129, 141143
testimonial privilege balancing test for, 2122
custody rights
parental substantial change of circumstances, 140
parental waiver of, 139
procedural barriers to, 140
of same-sex partners, 141
of stepparents, 126133
of third parties, 138143, 179181
357
detrimental parents, 130, 131
dissipated assets, elements of proof
control of asset, 8687
invalid purposes, 8890
loss of asset, 8586
purpose of loss, 8790
timing of loss, 86
valid purposes, 8788
divorce proceedings
joinder and intervention of third parties in, 7780, 9092
joinder of tort actions with, 4143
sanctions in, 1114
self-incrimination privilege in, 67
settlement agreements in, 4445
third-party intervention for custody in, 140
domestic partnerships, 113114
custody rights after breakup of, 141

358
laws for, 112
visitation rights after breakup of, 152, 153
domestic-violence counselors, testimonial privilege for, 18
electronic communications, 27
Electronic Communications Privacy Act of 1986, 26, 29
electronic surveillance, 60
emotional distress. See infliction of emotional distress
engagement rings, 116, 117
engagements, broken
breach of the marriage promise, 114116, 119
emotional losses in, 119
pecuniary losses in, 116118
reliance damages for, 120
equitable distribution, 66
equitable liens, 90
359
equitable-parent doctrine, 127
evidence, production and storage of, 58
experts. See private investigators; valuation experts
Fair Credit Reporting Act, 6566
Federal Bureau of Investigation rap sheets, 65
Federal Communications Act of 1934, 26
fee agreements, 62
Fifth Amendment. See self-incrimination, privilege against
financial institutions, discovery from, 101102
First Amendment, 75
Fourteenth Amendment, 4
fraudulent-conveyance statutes, 83
grandparents.
See also grandparent visitation rights
360
custody interventions by, 140
361
Page 184
grandparent visitation rights, 137, 143151
adoption on, effect of, 135, 146148
best interest of the child in, 145146, 151
constitutional challenges to, 148151
elements of process, 145
exceptional circumstances in, 144145
parental objections to, 144
standing in, 145, 148149
heartbalm, 115
herpes simplex viruses, 5152
human immunodeficiency virus (HIV), 51
individuals
362
privacy rights of, 102103
self-incrimination privilege of, 6, 8
infliction of emotional distress, 4649. See also intentional infliction of

emotional distress (IIED)
infliction of sexually transmitted diseases, 5052
injunctive relief
against illegal interceptions, 31
to protect marital assets, 80, 8182
third-party interference with, 82
in loco parentis doctrine, 122124, 126, 138
financial responsibility necessary in, 123
intent necessary in, 123
intangible assets, 100
intentional infliction of emotional distress (IIED)
documentation of, 47
elements of proof, 46
by fianc/fiance, 119
363
by spouse, 4649
by third party, 7374
interception of communications, 28, 2930
intercom communications, 29
interspousal immunity
for illegal surveillance, 3234, 35
for torts, 3941, 4344, 45
interspousal torts, 3953
assault and battery, 4950
bars to asserting claim, 4345
degree of injury, 4546
emotional distress, infliction of, 4649
interspousal immunity in, 3941, 4344, 45
joinder of tort claims with divorce actions, 4143
less common claims, 52
procedural issues for, 3945
364
sexually transmitted diseases, infliction of, 5052
statute of limitations for, 4344
types of, 4553
investigations
before accepting client, 5758
before filing case, 58
during discovery, 5859
lawyer liability
for private investigators' conduct, 57, 64, 66
for professional malpractice, 74
for surveillance activities, 30, 32
legal standing
in custody proceedings, 141
in grandparent visitation rights, 149
proof for, 155
365
letters of engagement, 6263
marital property
corporate earnings as, 91
dissipation of, spousal conduct in, 8385
equitable distribution of, 66
fraudulent conveyance of, 83
partnership interests and stock as, 92
property classified as, 8590
third-party interest in, 7780, 82
threat to conceal, 81
unequal division of, 8485
valuation of, 6667, 68
marriage counselors, 15
clergy as, 18
professional malpractice by, 74
366
testimonial privilege for, 16, 23, 159
mental health professionals, nonlicensed, 17
monetary damages, 3132, 36
367
Page 185
National Commission for the Review of Federal and State Laws Relating to
Wiretapping and Electronic Surveillance, 25
negligent infliction of emotional distress, 46, 66
nontraditional commitment relationships, 107120
alternative causes of action, 116120
breach of the marriage promise/antiheartbalm acts, 114116
protection of rights in, 107114
Omnibus Crime Control and Safe Streets Act of 1968, Title III, 26
Section 2511, 29, 30, 31
Section 2515, 31, 37
Section 2520, 31
Section 2521, 31
Section 2510(1), 27
368
Section 2510(2), 27
paramours
herpes simplex viruses infection by, 52
intentional infliction of emotional distress by, 73
self-incrimination privilege of, 7
parens patriae, 137
parental immunity, 35, 37
parental-right doctrine, 129130, 139140
parents
custody rights of, 127, 129130, 137
grandparent visits, objecting to, 144, 148151
psychological, 124, 130
standards for, 131
substantial change of circumstances for, 140
partnerships
369
agreements for, 100
discovery of financial information from, 103
interest in as marital property, 92
pen registers, 2728
physician-patient testimonial privilege, 1718
relationship in, 21
PI. See private investigators
Principles of Appraisal Practice and Code of Ethics, 67, 68
1991 Privacy and Technology Task Force, 29
privacy rights.
See also third-party privacy rights; wiretapping
surveillance invading, 65
private investigators, 5766, 69
billing from, 6263
conducted imputed to lawyer, 57, 64, 66
experience level of, 60

370
improper conduct by, 6466
initial meeting with, 6162
insurance coverage of, 61
licensing/bonding of, 60
protection of work as attorney work product, 6364
referrals for, 5960
reports from, 63
scope of employment, 61
selection of, 5961
supervision of, 63, 64, 66
surveillance by, 65
uses of, 5759
working with, 6164
privileges. See self-incrimination, privilege against; testimonial privileges

professional malpractice, 7475
property interests, third party. See third-party property interests
protective orders, 101

371
psychiatrists, misconduct by, 7475
psychological-parent model, 124, 130. See also in-loco-parentis doctrine
psychologists, misconduct by, 7475
psychotherapist-patient testimonial privilege, 1517
balancing test for, 22
relationship in, 21
statutory basis for, 16, 159, 160
waiver of, 16, 17
public accountants, 19
recission, 83
recordings.
See also wiretapping
admissibility of, 37, 170
disclosure/use of, 30
372
373
Page 186
procurement of, 30
records, confidential, 6566
relatives.
See also grandparents
recovery for wrongful death, 71
visitation rights of, 152, 179181
remedies. See specific types of remedies
same-sex relationships. See domestic partnerships
sanctions, 1114
adverse inferences, 1314
collateral testimony limited, 13
dismissal of suit, 1113
penalty versus sanction, 1114
self-incrimination, privilege against, 314
374
applicability of, 48
binding nature of, 910
civil applicability of, 45
constitutional basis for, 4
criminal prosecution, threat of, 5, 6
divorce applicability of, 67
family law applicability of, 56
invocation of, 811
manner of invocation of, 8
parties who may assert, 6
sanctions for, 1114
standard of proof/presumptions of law, 5
timing of invocation, 89
waiver of, 10
sexual-assault counselors, testimonial privilege for, 18
sexual battery, 4950
sexually transmitted diseases, infliction of, 5052

375
social workers
professional malpractice by, 7475
testimonial privilege for, 17, 160
sole proprietorships
marital property interest in, 92
record production by, 6
standing
for cohabitants, 152
in custody proceedings, 126129, 141143
for grandparent visitation rights, 145, 148149
legal, 141, 149, 155
for stepparents, 126129
substantive, 141, 148149, 155
stepparents, 121136
adoption by, 135
common-law obligations of, 121, 122124
376
custody rights of, 126133
obligations after divorce, 124126
standing of, 126129
statutory obligations of, 124, 177
visitation rights of, 134135, 178
substantive standing
in custody proceedings, 141
in grandparent visitation rights, 148149
proof for, 155
support obligations, stepparent
common-law basis for, 122124
contracts for, 124, 126
equitable estoppel in, 125
in-loco-parentis doctrine, 122124, 126
during marriage, 122
statutory basis for, 124
377
surveillance.
See also wiretapping
electronic, 60
video, 65
of witnesses, 65
switching stations, 28
telegrams, 28
telegraphs, 28
telephone communications
cellular, 28
cordless, 28, 29, 31, 36
interception of, 28, 2930
recording, 27, 65
testimonial privileges, 1523.
See also self-incrimination, privilege against
378
accountant-client, 1920, 163
balancing test for, 2122
clergy-communicant, 1819, 21, 161162
invocation of, 2022
marriage counselor, 16, 159
physician-patient, 1718
psychotherapist-patient, 1517
relationship in, 21
social worker, 17, 160
waiver of, 16, 17, 19, 20
379

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Competing Interests in Family Law

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Nothing contained in this book is to be considered as the rendering of legal advice

1998 American Bar Association. All rights reserved.

Mayoue, John C., 1954

Civil and Evidentiary Issues Affecting Marital Relationships

Applicability of the Privilege against Self-Incrimination in Domestic Relatio

The Privilege in the Civil Context

Applicability of the Privilege in Family Law

Standard of Proof and Presumptions of Law

Threat of Criminal Prosecution

Parties Who May Assert the Privilege

Applicability of the Privilege in the Context of Divorce

Consistently Invoking the Privilege

How the Privilege Is Invoked

When the Privilege May Be Invoked

The Cost of Invoking the Privilege: Penalty versus Sanction

Wholesale Avoidance by Plaintiff with Central Testimony

Limiting Collateral Testimony by Any Party

Limiting Central Testimony by Any Party

Nonlicensed Mental Health Professionals

When Privilege May Not Be Invoked

Injury to the Relationship Less Than the Benefit Gained

Disclosure and Use

Admissibility in Domestic Relations Proceedings

Joinder of Tort Claims with Divorce Actions

Other Potential Bars to Asserting a Tort Claim

Divorce Settlement Agreements

Specific Interspousal Torts

Tortious Infliction of Emotional Distress

Intentional Infliction of Emotional Distress

Assault and Battery (Including Sexual Battery)

Tortious Infliction of Sexually Transmitted Diseases

Human Immunodeficiency Virus (HIV)

Herpes Simplex Viruses

Sundry Other Interspousal Tort Actions

When Divorcing Couples Involve Third Parties

When to Use a Private Investigator

How to Select a Private Investigator

Licensed and Bonded

How to Work with a Private Investigator

Other Personal Torts

When to Use a Valuation Expert

Specific Third-Party Causes of Action

Alienation of Affections and Criminal Conversation

Intentional Infliction of Emotional Distress (IIED)

Joinder and Intervention of Legitimate Third Parties

Joinder of Legitimate Third Parties

Third Parties with Proprietary Interests

Rights of Legitimate Third-Party Creditors

Injunctions and Third Parties

Adjudicating the Rights of Third Parties

Conduct as a Factor in Division of Marital Property

Purpose of Unequal Division: Reimbursement or Penalty?

Classification of Property as Marital Property

The First Element

The Second Element

The Third Element

The Fourth Element

Valid Marital Purposes

Third-Party Valid Purposes

Third-Party Invalid Purposes

Miscellaneous Equitable Remedies