Family Law

Requirements for Valid Marriage

1) Formality Requirements
2) Capacity
3) Voluntary Consent

Ceremonial Marriage Requirements

-Licensure
− License
− Health Screening
− Waiting Period
-Solemnization
− Restrictions on persons authorized to conduct the ceremony
− Witnesses
− Registration of Marriage Certificate

Effect of Noncompliance
Majority Approach – Formality requirements are directory rather than mandatory.
Failure to comply with one does not render a marriage void or voidable, unless a statute specifically so
provides.
Minority Approach – Many states' statutes do provide a marriage is void or voidable if certain
requirements are not followed (or state that the requirement is mandatory, nor directory).

Common Law Marriage

− A valid, legal, binding marriage
− a marriage created by fulfilling requirements originally created by courts through common law
rather than by a statutorily prescribed a ceremony.
• Elements
• Agreement (both parties have to intend to be married)
• Public Declaration (holding out as married)
• Cohabitation
• Capacity to be married
Party relying on the common law marriage has the burden of proof (standard of proof varies by state)

General Marriage Recognition Rule – Marriage is valid if valid where celebrated, unless it violates a
strong public policy of recognizing state or results from evasion.

2 Factors in substantial attachment

1) What marital behavior occurred in the clm state?
− domicile
− temporary residence
− new agreement
− cohabitation and public declaration
2) Over how long a period of time?
Context often affects what courts requires.
Putative Spouse Doctrine.
Putative Spouse – a party to an invalid (void or voidable) marriage who has a good faith belief that his
or her marriage is valid.
− Doctrine creates a status that entitles the putative spouse to certain rights (varying by
state) of a legal spouse.
− Not all states recognize the Doctrine and rights vary
− Does not create a valid marriage
− Status ends when the putative spouse learns of the infirmity
− No spousal benefits can accrue after that point
− Rights accrued previously (up to the point of the discovery of the infirmity) continue to
be protected.

2 Presumptions for competing Marriages

1) The later of successive marriages is Valid
• Burden is on 1st spouse of the common partner to prove no divorce ever granted
2) A prior marriage continues until divorce is proven
• Burden is on 2nd spouse of common partner to prove 1st marriage ended by divorce or death.

Impediment Removal Devices

A marries B
then
A marries C (bigamous marriage therefore void)
then
B dies or divorces A
• Impediment removal statutes or doctrine of common law marriage can operate to make A-C
marriage valid upon the divorce or death of B.

Common Defects to marriage:

Void Voidable
• Plural • Underage
• Incestuous • Mental Incompetency
• Same-Gender (majority) (minority – 5 • Remarriage within 6 months (Okla.)
states + DC permit marriages, 3 other • Defective Consent (Fraud, misrepresentation,
US jurisdictions will recognize) duress, error, jest)

Void -
1) Effect – No marriage, i.e. no proceedings needed to terminate
2) When – can be attacked after death of one of the parties
3) Who – can be attacked by anyone in any legal proceeding in which issue is relevant
4) Financial differences in some states.

Voidable
1. Marriage in effect until annulled
2. Cannot be attacked after the death of one of the parties
3. Who can attack depends upon the defect - often it is only parties or just one party (e.g. the under
aged spouse in an under-aged marriage)
Enforcement of Capacity Restrictions – litigation
1) Criminal Sanctions
2) Suit for injunctive or declaratory relief
3) annulment proceedings
4) issue of whether a marriage is void can be litigated in any proceeding in which it is relevant –
estate actions, tort proceedings

Constitutional Regulation
Equal Protection – Classifications by Government
• Strict Scrutiny – classifications that distinguish between persons on a suspect basis – race or
national origin – classifications that impair a fundamental right
• necessary or “narrowly tailored” to achieve a compelling state interest
• Intermediate scrutiny – classifications based on gender or illegitimacy
• substantially related to an important state interest
• Rational relationship – all other classifications
• rationally related to a legitimate state interest

Substantive Due Process – permits court review of the substance of government regulation
• strict scrutiny – used for regulation that significantly interferes with the exercise of a
fundamental right
• rational relationship – used to review regulation that does not impair a fundamental right

Zablocki
− Confirmed that the right to marry is a fundamental right entitled to enhanced constitutional
protection. Thus, attempts to regulate can trigger heightened standards of review.

Analytical Framework – Constitutional Validity of Marriage Regulations

1) Does the regulation significantly interfere with the right to marry?
2) Are the State's interest compelling?
3) Is the regulation necessary to achieve the state's interests?
• Is it under-inclusive? (does not include all who are similarly situated with respect to the
purpose of the law)
• Is it over-inclusive? (imposes a burden upon a wider range of individuals than are in the class of
those with the trait relevant to the aim of the law.)
• Is there a less restrictive alternative?

Rights/ Reasons to get married (or, in some cases, not to get married)
− health benefits – insurance
− tax benefits and burdens
− inheritance
− property division
− maitenance (alimony)
− tort claim
− spousal immunity
− medical decision-making
− medical visitation
− parenting rights
 − custody
− presumptions of parenthood
− adoption
− symbolic recognition of commitment and relationship

Incestuous Marriages
− Consanguinity
− Affinity
− Restrictions:

Plural Marriages
− Prohibited in all states

Same Gender

Bowers
− upheld constitutionality of GA statute criminalizing sodomy in prosecution of same-gender
couple, rejecting substantive due process challenge
Romer
− struck down CO constitutional amendment prohibiting state or local gov't from conferring
protected status
− Did not overrule Bowers

Lawrence v. Texas
− struck down state statute criminalizing private consensual adult sodomy 5-4
− Substantive due process (concurring O'Connor argues should have done under Equal
Protection)
− rational relationship test
− Expressly overrules Romer
− Argues 1) private right to make individual decisions regarding personal relationships and 2)
morality of the majority is not sufficient reason to prohibit the practice

Varnum v. Brien
-

Predecessors to Goodridge
Baehr v. Lewin
− EP – gender discrim -strict scrutiny
− state must show compelling state interest to deny license
− motivated const amendment and reciprocal beneficiaries statute
-Bottom Line: no gay marriage. Allowed civil unions of a sort (some marital rights) to those who could
no get married – such as elderly siblings who might want to give each other medical decision making
powers.
Baker v. State
− EP (common benefits clause) – same gender couples cannot be denied the benefits of marriage-
balancing
− motivated civil union legislation
Goodridge v. Dept. Pub Health
− Holding: Mass Con compel redefinition of marriage as the voluntary union of two persons as
spouses, to the exclusion of all others

State Const Compels same-gender marriage

− Mass (EP and SDP, rational relationship)
− Conn (EP Intermediate scrutiny)
− Cali (no longer in effect due to prop 8) (EP and SDP, strict scrutiny)
− Iowa (EP – intermediate scrutiny)
State Const Does not compel same gender marriage
− NY
− NJ (compels civil union)
− Washington
− Maryland
− Vermont (compels civil union)

What Factors do Federal and State Courts look to in identifying which types of classifications involve a
suspect class?
− History of invidious discrimination
− Do distinguishing characteristics bear relation to a class member's ability to contribute to
society?
− Is characteristic immutable or beyond member's control?
− Political power of class

DOMA – denies federal marital benefits to same-gender marriages

− Fed Govt will not recognize same-gender marriage – 1 USC sec 7
− States not required by fed full faith and credit statute to recognize same gender marriage of
another state.

Thus far, there have been more success in challenging same-gender marriage bans under state cons than
under fed cons.

Restrictions rendering marriage voidable

− age restrictions
− however, the statutes say void but treat it as voidable
− only the underage party may initiate annulment (though some states allow parents to do
so)
− Constitutionality of Age Restrictions
− Different age requirements for men and women unconstitutional
− see Stanton v. Stanton, US (1975)
− Courts have upheld constitutionality of age restrictions in general
− Restriction on Remarriage
− Oklahoma (Important Okla Rules. Where divorce and remarriage takes place matters)
− No marriage within 6 months of Okla. Divorce except to ex-spouse
− Enforcement
− Criminal
 − Bigamy for divorcee who remarries in okla during 6 month period
− adultery for divorcee who remarries out-of-state and cohabits in
okla during 6 month period
− Annulment – remarriage in okla can be annulled by either party to second
marriage

− Invalid Consent
− Mental Incapacity (annulment by incompetent party or guardian)
− Intoxication
− Jest
− Fraud, Misrepresentation, Pregnancy by Another
− Basis for Annulment
− marriage voidable
− can be sought victim of fraud

− Standards for Annulment : Fraud

• Essentials of the Marriage Test – fraud must relate to ability or
willingness to consumate or ability to procreate.
• But For Test – If, but for the misrepresentation, the party
challenging the fraud would not have entered the marriage, and
knowledge of the fraud renders continuation of the relationship
intolerable and harmful to the physical or mental well-being of the
injured spouse, the marriage will be declared invalid.

• Duress
− US – Widely recognized but rarely used – physical duress or undue influence over
elderly
− France and England – Forced Marriage Laws

Marriage Recognition Principles

− Place of Celebration Rule – valid where celebrated
− Exceptions
1) Violates strong public policy of recognizing state
− incest, same gender, etc
2) Marriage Evasion
− when couple purposefully tried to evade home state's marriage laws
3) Supplemental Basis – valid if valid in state of common domicile
Celebrated
− if ceremony, the place of getting the license and having the ceremony
− if common law, more difficult factors based on time period, attachment, etc.

Marriage Recognition
− The Full Faith and Credit Clause of the Fed Constitution, and the fed. Stat., 28 USC sec 1738,
have not been interpreted by the courts to require a state to recognize a marriage celebrated in
another state.

State Mini-DOMAS
 − At least 40 states have passed mini-DOMA legislation or const. Amendments refusing
recognition to same gende marriages performed elsewhere
− some extend non0recognition to non-marriage statues
− however, a few states do extend recognition of non-marriage statuses

Rights of Cohabitants

3 Broad Categories of Rights

1. Contract Rights
• Illegal Consideration Doctrine – no enforcement of Kx if any part of consideration is
meretricious sexual relationship (Hewitt)
• Kx as independent business matters are enforceable in all states
A) Express Contracts
• Severance Doctrines – severable portion of kx supported by independent consideration
would be enforced (specifically, severing sex and prostitution concerns)
• Marvin v. Marvin – Kx unenforceable only to extent it explicitly rests on consideration
of illicit sexual services.
• Burdens and Amenities Approach (Oregon) – Kx enforced if it contemplates all of the
burdens and amenities of married life and is not primarily for sexual services.
• Obstacles
• In some states, Kx must be in writing
• Specific statutes on the subject
• Statute of Frauds
• Kx for services that cannot be performed within a year
• Kx for transfer of interest in real estate.
• Proof issues – Kx and Cohabitation
B & C) Implied Contracts and Partnerships
• Can be implied from loan, investment in property, or rendition of services
• Some states won't recognize, particularly based on services – Mass, NY, NH, NM
• Some view homemaking services as gift
• Some impose rebuttable presumption homemaking services are gift
• Implied in fact Partnerships – businesses
D) Resulting Trusts
• equitable remedy
• Court concludes based on circumstantial evidence that property was intended by the
parties to be held in trust by one for the other
• Intent must be shown by clear and convincing evidence
E) Equitable remedy to prevent unjust enrichment
• Holder of legal title held to be trustee for benefit of another who in good conscience is
entitled to beneficial interest
• creation of court, regardless of intent of parties
• must be shown by clear and convincing evidence
• Three Elements
1. Defendant received benefit
2. at Plaintiff's expense
3. Defendant's retention of the benefit was unjustified
 F) Unjust Enrichment or Quasi-Contract (SEE POWERPOINT)
• A legal remedy (very similar to constuctive trust) but procedures may differ (e.g. right to
jury)
• Focuses on the unfair increase in one party's wealth
G) General Equitable Powers
• Some courts have not used the above labels but have been willing to distribute property
of cohabitants using their general equitable powers.
H) Formal Alternative Status for Same Gender Partners
• created by ceremony or by registration
• all state rights of marriage or some rights of marriage
• who may participate:
• same gender couples
• conjugal couples who cannot marry
• conjugal couples – came or opposite gender
• non-conjugal couples
• Current Common Law Remedies
• e.g. Washington - “committed intimate relationship,” formerly called
“meretricious relationship”
• Property accumulated during a stable, marital-like relationship subject to
equitable distribution
• Court looks at 5 factors
1. continuous cohabitation
2. duration of relationship
3. pooling of resources and services for joint projects
4. purpose of relationship
5. intent of parties
• ALI Proposal (SEE SLIDES)
• Domestic partnership based on meeting statutory criteria rather than registration
or kx
• Domestic partners have all rights vis-a-vis each other re: property and support
that ALI gives to married couples, unless they kx out

2. Equitable Rights
•
3. Rights Conferred by a legally recognized status

Treatment of Cohabitants by Third Parties (SEE SLIDES)

− General Approach – except for partners in gov't created alterntive status, cohabitants have no
marital rights from gov't or third parties
− Exceptions
− Fiance/cohabitants permitted

Rights and Duties among Family Members DURING Marriage

A.) Rights of Spouses
− Support
− Traditional Approach
− Husband required to support wife irrespective of means
 − Support obligation = providing the necessaries : clothes, food, shelter, medical, dental,
etc.
− Civil Liability OK stat t43 s 201, 202 (McGuire – not easily enforced)
− Criminal Liability OK stat t 21 s853 – Desertion
− Most states formerly imposed on husband liability to creditors for necessaries if husband
failed to provide them.
− Often H not liable if W wrongfully deserted him
− Often H not liable if he made adequate provision for support of W.
− Constitutionality?
− Policy?
− Modern Necessities Doctrine
− Duty of support applies to both
− or eliminate the doctrine
− purchasing spouse primarily liable, other spouse secondarily liable if purchaser is unable
to pay
− Case-by-case approach based upon ability to pay (responsibility based on pro rata share
of total spousal resources.)
− Effect of Separation
1. Liability unless separation is fault of purchaser
2. liability only if separation is non-purchaser's fault
3. Duty continues only marriage dissolved, fault taken into account, but not
dispositive
4. fault irrelevant
• To avoid liability, non-purchaser has burden to prove creditor had
notice of separation
− Family Expense Statutes
− H and W both liable for expenses of the family and education of the children
− Applies to items beyond mere necessaries
− Contract Approach
− Spouses liable based on Kx
− e.g. purchase kx with merchant, kx with credit card company
− Agency
− Spouse liable to merchant if purchasing spouse held to be the agent of the spouse being
sued
− Express agent – expressly authorized other to make purchase
− Implied agent – merchant could have reasonably concluded purchaser had
adequate authority
− Ongoing marriage can imply authority
− no objection by non-purchasing spouse to similar purchases in the past may
imply authority unless creditors notified otherwise
− Property Rights
− in C/L states
− During the Marriage
− the right to own and control property goes with title
− the only property jointly owned is property in joint title
− each party owns and controls the property he or she brought into the marriage and the
 property he or she acquires during the marriage, gifts, or inheritance and earnings.

− Community Property States

− AZ, CA, IdAho, NM, TX, WA, WI
− Title does not control ownership
− Community Property – property acquired during the marriage by the labor, effort, or
industry of either spouse
− During the marriage each owns an undivided 1/2 interest in the community property
− Thus the earnings of either during marriage belong to both H and W
− Separate Property – Property owned by one spouse prior to the marriage, or acquired
during the marriage by gift, inheritance, or exchange of separate property
− Separate property is owned by its owner
− 3 Approaches to gender neutral management – states use various combinations
1. sometimes each can act alone to bind the other
2. sometimes both can consent (e.g. real estate transactions)
3. sometimes sole management authority is assigned to one on a gender neutral
basis – e.g. business, or TX approach to prop or earnings
• Often a duty of good faith is imposed

Rights of Spouses – Contracts

• Traditional Approach
− Kxs between spouses related to business are enforceable
− (SEE SLIDES) 9/14/10

Uniform Premarital Agreement Act

• 26 states plus DC
• Premarital Kxs between spouses enforceable as to all matters, including rights during
marriage, unless violate strong public policy or criminal law or diminish child's right to
support

Rights between Parent and Child

a. Right to support
• civil duty
• enforced by criminal penalties
b. Liability to merchants
• Necessaries doctrine – parents are liable to merchants for necessaries purchased by child
• Exception – a child who voluntarily abandons the parent's home may forfeit right
to support
c. Some states impose liability upon parents for the support of an adult disabled child.

Rights of Parents
a. Financial
• earnings of child
• filial responsibility laws (adult child must support elderly parents in some states)
b. Custody, Control, Obedience
• Fundamental right of parent to decision-making authority over child
• Typically gov't limits parental authority only:
 • in cases of serious mistreatment, i.e. abuse, neglect, parental unfitness
• when const. Rights of child are at issue
• access of minors to contraceptives
• But Children's constitutional rights are not as strictly protected as those of adults
• age restriction on marriage
• Parham – no right to adversarial hearing upon institutionalization with
parental consent, if
• independent inquiry by neutral fact finder, and
• periodic review

Emancipation
1. Determined in court action in ex post facto inquiry
• inquiry the issue of whether the child was emancipated at a given time becomes an issue in
subsequent litigation
• e.g. enlistment in military, marriage, child becomes self-supporting

2. Statutory procedure to beome emancipated, completely or partially

Dissolution of Marriage
a. Divorce
• Issue: to what extent should access divorce be easy?
• Does state have any legitimate interest to vindicate through its dissolution law, other than to
respect the wishes of one party who desires to leave the marriage?
b. Fault system
• no divorce by mutual consent
• one party must be at fault and the divorce is meant to punish them
c. Reform
• all states have abandoned pure fault systems
• Pure No Fault Systems
1. a marital breakdown standard (goes by many names)
• irretrievable breakdown (UMDA)
• irreconcilable differences (CA)
• incompatibility (OK)
• insupportability (TX)
• key to all: court must find no possibility of reconciliation
2. Living separate and apart for a period of time
3. Judicial separation for a period of time
4. Mutual Consent
• Fault and No Fault Hybrids
• Majority of states
• Hedged
• Fault, or mutual consent, or long separation
• Fault or Mutual consent
• no unilateral divorce
• Covenant Marriage
• An Option agreed to by the marrying couple
 • Premarital counseling
• more difficult to terminate

Other Restrictions Apart from Grounds

• required counseling
• longer waiting periods for divorce
• restrictions in case of extreme economic impact on one spouse that cannot be alleviated by
terms of divorce
• more stringent prerequisites to marriage-counseling and waiting periods

Summary Procedures
• Divorce without court hearing
• uncontested, based on affidavits

Defenses to Fault Grounds

• Condonation – forgiveness
• Recrimination – both guilty
• Provocation – P provoked D's conduct
• Connivance – P acquiesced
• Collusion – agreement
• Abandonment

Annulments
• Declaration of of invalidity
• grounds: marriage is void or voidable
• equitable defenses
• clean hands doctrine
• ratification and laches
• SEE SLIDES (9/21/10)

Legal Separation
• contemplates the couple will live apart
• parties are not free to remarry
• one spouse may be ordered to pay support to the other

SEE SLIDES FOR PROCEDURAL ISSUES

9/23/10
It's much easier to get temporary relief (sometimes automatic restraining order) in divorce cases.
(SEE SLIDES)

Educational Programs
− Many states require parenting education
− This is the case in OK
Financial Issues
1. Property Division
• Community Property Systems
• AZ, CA, ID, LA, NV, NM, TX, WA (SEE SLIDES FOR MORE DETAILS)
• property acquired by the the labor, effort or industry of either spouse during the
marriage. Basically, all property not separate property
• separate property – property acquired before marriage, by gift, by inheritance, o
in exchange for separate property.
• Common Law Equitable Distribution States (CLEDS)
• Classifies all property as marital (community)or non-marital (separate) property
• marital property is divided equitably
• non-marital is awarded to the owner.
• Some states have a presumption that equitable is equal
• Primary Differences
• Marital/non-marital property v. separate property
• 3 states require equal division of community property
• all others require equitable division
• Factors to be considered
1. equal division presumption
2. starting point – equal division
3. need of parties – factor in most states
4. contribution of spouses
• who acquired property?
• Homemaker contribution
• homemaker efforts that directly contributed to acquisition, preservation,
maintenance, or increase in value of property
• each fulfilling their roles adequately (majority)
5. duration of marriage
• is this really an independent factor?
• Is the true issue whether need has been impacted by the long marriage or
duration has affected expectations of the parties, so that contribution
counts less
• Recission – in short marriages where parties have not commingled funds
– some courts place parties as closely as possible in financial situation
they would have been in if marriage had not occurred.
6. Marital Misconduct
▪ majority approach: fault is not a factor
▪ Minority: misconduct can be considered in court's discretion
▪ when divorce is sought on fault ground
▪ when divorce would create economic disadvantage for the
“innocent spouse”
• Another Minority: only egregious fault – serious felonies
7. SEE SLIDES

Note: equitable division mean fair, not equal; however, there is typically an rebuttable presumption that
equitable is equal, thus if a party wants more than half, they must prove why that's fair.
Property Division
Rules for Labeling Separate and Community/Marital Property
• Determining property “marital” or “joint” means only that it goes into the pot to be equitably
divided. It does not mean it gets awarded to the “other” spouse.
• Presumptions
• Property acquired during the property is marital
• a rebuttable presumption
• Marital Debt
• Courts typically divide debts as well as property
• Decree typically order each spouse to pay certain debts and hold the other
harmless
• Allocation of debts is considered along SEE SLIDES
• If property is encumbered with mortgage, then typically the spouse who gets the
property also gets the debt.
• Only one spouse need sign the paperwork to create marital debt.
• The presumption is that all debts incurred during marriage are marital debts
• (or) Debts incurred for the joint benefit of the parties.
• Allocation of obligation to pay in a divorce decree only creates a right of indemnification
between the spouses
• It does not affect the ability of the creditor to collect from either spouse, if both would
otherwise be liable for the debt.

Approaches
1. establish at time of divorce each spouse's share if and when received
2. reserve jurisdictions
3. at time of divorce, calculate present value for an immediate payment
4. refuse to allocate it, if receipt is too speculative

Increase in value of Separate Property during Marriage

In some states
− increase is marital
− increase is separate
Majority Approach
− increase is marital if produced by spousal effort or skill or marital funds
− in most states this is true if the increase is due to the effort of either the owning or non-
owning spouse
− Increase is separate if due to natural increase, i.e. market or economic factors or inherent nature
of the property.

Apportionment – Businesses
a) Separate Businesses
Reasonable rate of return method
− used when increase is largely due to effort of one spouse during the marriage
− gives separate property owner a reasonable rate of return (interest) on separate property
investment
Reasonable Compensation Method
− used when increase due to natural factors primarily
 − marital estates share is the reasonable compensation for the spouse's efforts, and bulk of
increase goes to separate property owner
− if spouse working in business is reasonably paid for work (i.e. earned same or even more than
what is reasonable compensation) nothing is awarded to marital estate for the increase in value
Some States Take an All or Nothing Approaches
− Any spousal contribution to increase renders increase marital – no apportionment

Assets Acquired with Separate and Marital Funds

− Source of funds Doctrine – property is apportioned between separate and marital property in
proportion to the contributions from separate and marital sources
− Inception of Title
− If property originally separate, it states separate. Marital estate entitled only to
reimbursement of funds spent and perhaps a reasonable rate of return (interest) on the
investment
Transmutation
• occurs when parties take action that indicates their intent to change the character of property
• parties's express intent can override any theory of classification
• conduct of parties can also create presumption of intent to change character of property
1. joint title
2. commingling
3. marital use

Timing Issues
• Multiple Marriages by the Same Parties
• If 1st divorce vacated, marital property is all property accumulated since date of first
marriage.
• If parties remarry, property they were awarded in first divorce comes into the 2nd
marriage as separate property.
• Pre-marriage Cohabitation
a) treat property acquired this cohabiting prior to marriage as marital
b) cohabitation rules govern property acquired during cohabitation, and divorce rules govern
property acquired after marriage
c) no division of pre-marriage property
- some reject Marvin (cohabitation contractual property rights) completely
- some reject this in this context (but otherwise might divide property if couple had lived
together but did not get married.)
• Acquiring Marital Property
• When do couples stop acquiring marital property?
1. When they separate
2. Date divorce petition filed
3. Date decree is issued (effectively trial date)
4. Trial court's discretion
• Valuation of Marital Property
1. Date of Separation
2. Date divorce petition was filed
3. time of trial/decree
4. trial court's discretion
 • OK gives trial court's discretion, but generally uses time of trial.
• ALI also uses time of trial unless the value is altered by the actions of either after the
date when they could acquire marital property.

What Property is Divisble

• Pensions
• Vested
• benefits the employee will not lose if she quits or is fired
• can be mature (eligible to be collected) or not yet mature
• employee's contribution is always vested
• Non-Vested
• contingent upon employee continuing employment until some future date.
• Are Pensions divisible?
• Vested – Yes.
• Non-vested – Yes in most states
• Courts take it into account in value
• or defer distribution
• Methods of Distribution
1. Present Value Method
• Courts awards the non-employee spouse a lump sum or other property to offset the value
of the pension benefits at the time of dissolution that are attributable to employment
during the marriage.
• Oklahoma and many states prefer this method where possible
• provides immediate settlement
• prevents uncertainty
2. Deferred Distribution through a Qualified Domestic Relations Order
• non-employee spouse is granted a portion of the benefit to be paid when the employee
spouse is eligible for retirement.
• Qualified Domestic Relations Order must satisfy the requirements of Federal Law, in
compliance with ERISA (Federal Pension Law), which must be reviewed and qualified
by the plan administrator.
• Using a QDRO – a non-employee spouse may receive benefits at the time the employee
spouse is eligible to retire, even if actual retirement does not occur at that time.

• Types of Pensions
• Defined Contribution
• employer and sometimes employee are obligated to contribute a certain amount
periodically
• value of the individual employee's account is his or her proportionate share of the
total plan's assets at time of divorce – source is statement from plan administrator
• marital share is the contributions during marriage plus the investment return
attributable to that portion
• examples: 401k, Keogh plan, stock bonus plan, profit sharing plans
• Defined Benefit Plan
• Employee is promised a specific monthly beneift upon retirement payable for the
remainder of her life
 • The ultimate amount is not necessarily connected to the amount of the
contribution
• Courts of many states find these plans cannot be valued based on the amount of
the accumulated contributions of the employer and employee
• Okla – Pulliam v. Pulliam
• Apportionment of Pensions
• Only the portion attributable to marital labor is divisible
• Defined benefit plans typically apportioned by a relative time rule – marital share
is based on proportion of marital years to total years of employment
• Defined contribution plans use relative value approach – marital share is total
contributions during marriage combined with investment gains or losses for those
contributions.
• Pensions – ERISA complications
• Boggs (1997)
• Invalidated a decedent spouse's transfer of her interest in retirement benefits to
her sons, as a violation of ERISA's anti-alienation provisions
• ERISA can preempt state community/marital property law
• QDROs are a special exception designed to protect living divorced spouses, but
not applicable to this case (no QDROs issued here).
• Egelhoff – SCOTUS (2001)
• Court invalidated Washington divorce redesignation law – which had provided
that beneficiary designations for retirement plans or life insurance made prior to
divorce were not valid if death occurred prior to reaffirmation of designated
beneficiary
• Court held statute pre-empted by ERISA
• Kennedy v. DuPont
• Ex-wife who waived interest in retirement plan in divorce decree received
retirement plan on husband's death, because he failed to properly execute change
of beneficiary form approved as approved by the plan.
• Military Retirement Benefits
• Gives state court power to treat military retirement pay as marital property subject to
division
• creates a direct payment mechanism whereby federal government will make direct
payments of former spouse who has been awarded a portion
• But for direct payment mechanism to apply:
• must have been married for 10 years during which military spouse was in service
• can't make direct payment of over 50% to non-military spouse
• However, military disability pay taken in lieu of retirement pay no divisible (Mansell v.
Mansell)
• State Court actions to avoid Mansell:
• vet's disability income considered in determining alimony (e.g. MS)
• where military spouse makes post decree election to take retirement pay as
disability pay, or eligibility for disability pay increases
• Majority approach – court can order military spouse to pay ex-spouse directly for
benefits the conversion cause him or her to lose, in enforcement action (NM, TN,
OK) or in decree itself (Nelson, OK App)
Professional Degress
• How do you deal with a professional degree?
• Three approaches
1. Degree is property subject to division
2. consider non-student's contribution in alimony
• traditional alimony (problem: the issue is often the need of the other spouse but often the
non-degree seeking spouse is not economically dependent and in many cases has
actually been supporting the couple through school.
• non-traditional alimony (some courts have created special alimony that is not terminable
upon remarriage of recipient)
3. consider non-student's contribution in equitable award of property
• Methods of Degree Valuation
1. Reimbursement (Majority Approach)
• Note: Dela Rosa's formula is reimbursement = .5 spouses living expenses + educational
expenses – student spouses financial contributionn (p. 398)
2. Restitution – amount student unjustly enriched
3. Lost opportunity costs (Pyeatte p. 439)
4. present value increased earning capacity
5. Need.
Note: twilight zone for divorce 5-15 years after the degree

Goodwill
• Marital businesses
• divisible
• Valuation includes:
• tangible assets, property, accounts receivable, minus debts
• Goodwill

For Professional Practices it gets tricky since many professional endeavors can not be easily sold.
Three Approaches
1. Property
2. Not property
3. property if value independent of continued presence or reputation of professional spouse
(majority approach)

Valuation of Professional Goodwill

• Capitalization methods
• fair market value
• buy/sell

FROM SLIDE
Goodwill

Goodwill is essentially the reputation of a business that will probably generate future business.
An ownership interest in a business that was acquired during the marriage is marital property subject to
distribution. When valuing most businesses, the value is determined by looking at the fair market
value, which is determined by accounting principles, looking at the value of its assets. For most
businesses, this is determined by assigning a value to the tangible assets of the business — its property
and accounts receivable, less debts – and the value of its goodwill, the excess of the business’s market
value over the total value of its other identifiable assets (less its obligations). The fair market value of
a successful restaurant, for example, might have a higher value than its tangible assets because of the
reputation it has developed, and the fair market value of that business would include a certain value for
goodwill. Thus, for a business that can readily be sold, the inclusion of its fair market value in its
valuation at divorce is not controversial.

Many types of professional practices, however, are not saleable, or not easily saleable, due to
regulatory rules. Therefore, courts have debated the extent to which the goodwill of a professional
practice should be included in its value for purposes of valuation of the practice at divorce.

Three approaches:

(1) Professional goodwill should be included in the value. Ex. Dugan. (N.J. 1983).

(2) Goodwill of a professional practice is not property. (This absolute approach was seen in early
cases, but is rapidly being replaced by the third approach.)

(3) Professional goodwill is marital property if it has a value independent of the continued presence or
reputation of the professional spouse. (Hanson, also Oklahoma courts). These courts reject
capitalization of earnings approaches that, in their view, treat future earning capacity as property.

Your authors say that this debate has really been reframed from a debate over "what is property"
to essentially a valuation issue.

Courts that take the Dugan approach are willing to value the goodwill of a professional practice
using a capitalization approach. Capitalization can utilize different formulas to calculate goodwill.
The first three formulas listed on p. 353 of your text are all capitalization formulae. I do not expect you
to memorize these. Just be aware that they are different methods to calculate the goodwill of a
professional enterprise that all involve multiplying some data for earnings or excess earnings by a rate
determined as the probability that the earnings will continue in a particular pattern. One common
approach is to look at the excess earnings of a professional over an employee doing comparable work.

By contrast, courts taking the third approach are typically willing to value goodwill only by the
fourth and fifth method discussed on p. 352, using either testimony as to the fair market value of the
practice, or the spouses interest in the practice, if testimony indicates, for example, that a similarly
situated professional practice was sold and included a value for goodwill, or by the terms of a buy-sell
agreement that partners in the practice may have for determining the value of professional goodwill of
the practice if the spouse should leave the practice.

Celebrity Goodwill - A few states have included as marital property the value of celebrity goodwill,
based on a probability that a past earning capacity developed during the marriage will continue.

Professional Degrees and other Education

Courts have taken three approaches to dealing with professional degrees:

(1) Professional degree is property subject to division. Ex. O’Brien and Calif. statute
(2) Consider the non-student spouse’s contribution to the student spouse’s education in calculating
alimony.
(A) In an award of traditional alimony

(B) In an award of non-traditional alimony (not terminable upon remarriage of recipient, or

perhaps not modifiable)

(3) Degree is not property, but non-student spouse’s contribution is taken into account in awarding
larger share of the property and cash to the non-student spouse in property division, either:
(A) because the statute is broad enough to permit it, under "equitable division," or
(B) under the court’s general equitable powers.

The most difficult problem is determining the proper valuation for the degree or license. Courts in
different states are willing to consider different measurements, and some states have utilized a
combination of these in the same case:

Methods of Valuation

(1)Reimbursement for Monetary Contribution

ex. De La Rosa
Award = ½ couple’s living expenses plus H’s educational costs minus H’s income

(2) Restitution - value of the amount the student spouse was unjustly enriched
To be entitled to restitution, the spouse seeking compensation must prove
(1) the other spouse received a cognizable benefit; (2) the benefit was conferred at the
expense of the non-student spouse, and (3) retention of the benefit by the student spouse was unjust.

(3) Lost Opportunity Costs

(A rehabilitative alimony approach would be an option that would be included in this category)

(4) Present Value of Increased Earning Capacity

allows the non-student spouse a share in the expectation

(5) Need (Sometimes the courts have used the increased earning capacity of the student spouse to
measure the standard of living and thus establish

Personal Injury Award

• Replacement Approach
• Marital – proceeds compensating for lost wages during marriage and uninsured
• SEE SLIDES 10/05/10
Alimony/Maintenance
• Payments made by economically stronger spouse to the economically weaker spouse during and
sometimes after the legal separation process.
• Factors and Rationale
• Award must be gender neutral (Orr v. Orr SCOTUS 1979 – Intermediate Scrutiny)
• Gender impact of divorce
• In reality, most recipients are women.
• In most States, generalized rationale is need
• Two Factors
1. Need of economically dependent spouse
2. Ability of other spouse to pay

Need rationale without more precise explanation leaves several issues on which there is much
disagreement:
1. Should it matter why claimant is in need?
2. How do we define need?
• Subsistence
• middle class standard of living
• marital (pre-divorce) standard of living
• income equalization
3. For how long should payments be made?

• Duration of marriage has been a significant factor.

• It is often viewed as an indicator of loss and the other spouse's obligation to share it.
• SEE SLIDES (10/07/10)

Comparison
Property Division Alimony Child Support
Not modifiable Modifiable Modifiable
Not terminated by any events Terminated by death of either Terminated by the death of the
remarriage or cohabitation of payor or child attains age of
recipient majority or emancipation
Not dischargeable in Ch. 7 Not dischargeable in Ch. 7 or 13 Not dischargeable in Ch. 7 or 13
bankruptcy bankruptcy bankruptcy

COBRA
• Group health plans are required by fed law to offer continuing medical coverage for up to 36
months to spouses of employee's after divorce (SEE SLIDES 10/12/10)
• employer is not required to pay premiums. They must be paid by the non-employee spouse,
unless the employee spouse is ordered to pay them as part of the decree, as alimony or child
support
• Employees or spouse must notify employer within 60 days of divorce or legal separation
• spouse must elect COBRA coverage within a 60 day election period.
Bankruptcy
1. Support alimony or child supporting
• not dischargeable in chapter 7 or 13
2. property division debt to a spouse or former spouse
• not dischargeable in chapter 7 bankruptcy
• can be discharged if debtor completes payments under plan in chapter 13 bankruptcies

Bankruptcy – Stay
• Filing bankruptcy stays creditor efforts to collect a pre-bankrupcy (SEE SLIDES 10/12/10)

Tax Consequences
• Have to pay tax on alimony – do not have to pay on property division
• Alimony – deductible by payor; taxable as income to payee.
• Defintition set by IRS
1. Payment must be in cash to or on behalf of spouse. Not personal property or promissory
note. Payment to third parties – Test for Indirect Alimony: Does spouse benefit
economically by reason of the payment?
2. Payment must be required by a divorce decree or separation instrument.
• Court ordered spousal support.
• Written separation agreement works too
• both parties must sign
• actual separation not required
• divorce not required
3. Payor and recipient cannot live together at time payment is made if they are divorced or
legally separated.
4. Payments must terminate upon death of the payee spouse
• by terms of decree of agreement, or
• by operation of law
5. Parties have not elected different tax treatment in the divorce or separation instrument
6. Parties cannot file joint tax return for a year in which payments are made.
7. Payments are not child support.
• (2) payment is reduced on 2 or more occasions which occur not more than one year before or
after a different child attains any specific age between 18 and 24.
l
The age must be the same for each child, but not necessarily a whole number of years.

This last presumption is only triggered when:

l2 or more children
l2 or more reductions
l.the relative ages of the children at the time of the different reductions are between 18 and 24 and less
than 2 years apart
l
See illustration from June 87 Trusts and Estates article
 • DO TAX PROBLEM ON TWEN!!! Will be on exam!

Alimony – Effect on Bargaining

• maximize tax savings by placing tax burden on spouse with lowest tax bracket, and offsetting
tax burden to that spouse with higher payments.
• Payee must pay taxes on alimony payments and wouldn't pay taxes on property payments, so
payee should negotiate corresponding benefit to offset.
• To obtain alimony tax treatment, payments must terminate upon death of payee – may be
undesirable to payee if payments are really property settlement and would otherwise pass to
payee's heirs.

Alimony – Recapture
• Recapture – Rule against Front End Loading
1. What – recapture rule requires that excess alimony payments from the first two years be
recaptured and reported as income in the third year by the payor spouse, with a corresponding
deduction given to the payee spouse in that year.
2. when - recapture occurs in the 3rd post separation year, which is the third calendar year after
payments begin
3. (3) formula (see handout)

Total Recapture = Excess Amount for Year 2 + Excess Amount for Year 1

Excess Amount for Year 2 =Amt. Paid Yr. 2 - [Amt. Paid Yr. 3 + $15,000]

Excess Amt. for Yr.1 = Amt. Pd. Yr.1 - [$15,000 +({Amt. Pd Yr.2-Excess Yr.2}+Amt. Pd
Yr.3)]
2

• Rule of thumb - To avoid recapture, the 1st year payment can only be $7500 greater than the
2nd year payment, and the 2nd year payment can only be $15,000 greater than the 3rd year
payment.
• THE POINT OF ALL THIS: To penalize people with large reductions within the first few years.
4. Recapture does not apply:
(a) when payments cease because of death of either spouse or payee remarries before the end
of the 3rd year
(b) to payments made under temporary support orders or interlocutory decrees of divorce

(c) to extent payment is made for at least 3 years and the amount is a fixed portion of the
 income from a business or property or other compensation from employment or self-
employment

Tax – Child Support

• not taxable on recipient
• not deductible to payor
• Dependency exemption
• Rule: Until the child is 18, the dependency exemption goes to the custodial parent, unless the
custodial parent signs a declaration that the noncustodial parent may claim the exemption. Here,
the custodial parent is the one who has physical custody the majority of the time.
• After the age of majority, any dependency exemption goes to the parent who pays for over half
of the child's support for the year.
• Different Rules Apply if either
1. the divorced parents together provide less than ½ of the child support, or
2. the child is in the custody of someone other than one of the two parents for over ½ of the year.
• Noncustodial parent of minor may get the exemption if custodial parent signs a waiver.
• SEE SLIDES

Tax – Property Settlement

• i.Transfers of property between spouses, or between former spouses incident to divorce, are not
taxable events.
(1) No gain or loss is recognized by the transferor.
(2) Transfer is not taxable income to the transferee.
• (3) “Incident to Divorce” means the transfer is
lwithin one year of the date the marriage ceases,
lor pursuant to a divorce or separation instrument and the transfer is within 6 years of the date the
marriage ceases.
• Transferee takes the property with the transferor’s adjusted basis.
• Payments pursuant to QDRO
• A former spouse who receives payments pursuant to a QDRO from a pension is taxed on those
payments as income. Sec. 402(e)(1)(a)
• The same is true for a former spouse who receives payments under an IRA 402(a)(6).
• The plan participant is not taxed on the income paid to the former spouse.
Fees incurred for tax planning and obtaining income taxable to recipient (such as spousal support or
income from a QDRO) are deductible if taxpayer itemizes deductions.
ii. Fees for obtaining divorce, custody, property settlement, child support, or resisting alimony are not
deductible.
• g. tax returns and liability
i. Spouses who file joint returns are jointly and severally liable for the entire tax due, including
interest and any applicable penalties.
ii. Because spouses must be married at the close of the taxable year to file jointly ( unless one dies that
year), spouses may not file jointly for the year in which their divorce becomes final.

Antenuptial and Separation Agreements

Definition - contract made in anticipation of marriage.

• Purposes
• regulate right upon death
• transfer property in condsideration of marriage
• determine rights during marriage as to financial matter and lifestyle choices
• regulate rights upon divorce.
• Modern approach: Antenuptial Contracts are valid
• Limitations on Terms
• property division terms generally allowed
• limitations or exclusion of alimony enforceable in most courts
• generally child custody terms not binding on court
• child support terms not enforceable to the extent they limit support
• agreements “encouraging” divorce by specific terms may not be enforceable
• Fault grounds – Bad Boy clauses – have been refused
• but clauses penalizing divorce filer enforced.
• Enforceability – 1) in writing
• Formal defects
• Kx must be in writing
• Statute of Frauds
• UPAA
• Enforceability – 2) procedural + substantive defects
• Was it informed (full and fair disclosure or equivalint)?
• Was it voluntary?
• Was it substantively fair?
• unconscionable/void as against public policy
• States differ on the combination of these factors they require for enforcement.

Voluntary Consent
a) understanding effectively
Did parties understand the terms or basic effect of the K? Adequate explanation?
• Did each have independent counsel (or opportunity for counsel)?
• Did each understanf rights in absence of agreement?
• Did each have adequate time to review?
b) Oppressive Bargaining Tactics
Was Kx the result of oppressive bargaining tactics?
• Coercion, duress, undue influence
• some courts recognize lack of meaningful choice
• is pregnancy or out of wedlock child duress?
• SEE SLIDES

Substantive Fairness
• Competing Concerns
• protecting parties freedom of kx
• protecting parties' financial interests/ability to support themselves at divorce
 • This tension leads to a variety of approaches
• invalidate if unfair
• invalidate only if unconscionable
• invalidate if party rendered public charge
• invalidate – forseeability issue
• invalidate if void against public policy (all states)
• Factors courts typically examin
• duration of marriage
• economic circumstances of parties
• future needs of each
• property brought into marriage
• contributions of each to marriage
• contributions of ech to earning capacity of the other
• earning capacity of each
• age and health of each
• objective of parties entering agreement
• SEE SLIDES

• ALI
• Forseeability approach to unfairness at enforcement
• Were circumstances at divorce roughly what the parties foresaw at execution? (i.e. Gant)
• A court consides if agreement works a substantial injustice only if party opposing
enforcement shows:
1. More than a fixed number of years have passed (10) or,
2. child was born or adopted
3. change in circumstances that had substantial impact onparties or children

Enforceability
1. Some courts require both substantive and procedural fairness
2. some require either substantive or procedural fairness
3. some impose higher standard to deny enforcement
• unconscionable or if terms are void as against public policy
4. courts that will scrutinize for substantive fairness differ as to the timing of scrutinny
• at time of execution
• at time of separation or divorce

Sometimes courts have greater scrutiny for alimony provisions

Burden of proof
• courts are split
• Trend: Burden of proof on party attacking the validity of the agreement
• consistent with UPAA
• some recent decisions follow this but create a rebuttable presumption of non disclosure when
the terms disproportionately favor the enforcing party.
Uniform Premarital Agreement Act (UPAA)
26 states + DC
Premarital kx not enforceable if
• involuntarily executed by party against whom it is enforced, or
• uninformed + unconscionable at execution, or
• alimony limits or elimination creates public charge

Antenuptial Agreements
• amendments by conduct
• conduct during marriage can negate earlier written agreement.

Postnuptial Contracts
• Marital contracts not in anticipation of separation
• some states apply the same rules as to antenuptial kxs
• SEE SLIDES

Separation Agreements
• agreement made between parties during the marriage who are separated
• SEE SLIDES
• DEF SEE SLIDES ON MERGER 10/19/10
• If separation agreement is incorporated in the decree by reference, the kx is extinguished i.e.
merged.
• It is then enforceable as a decree

Child Support
a. Setting the Amount
SEE SLIDES
Federal law requires each state to have guidelines

Balancing the primary reasons for requiring child support

1. serves the child's interest
2. achieve fairness between the parents

Guidelines: two types

a) Equal living standards model
• not adopted by any state
• aims to provide child with standard of living equivalent with noncustodial parent

b) marginal expenditures model

• used by most states
• looks to the amount a household spends to maintain its standard of living when a child is added
to the household
• influenced by work of Espinshade
• studied 2 parent households
• assumes a base – the amount a couple needs to maintain their standard of living without
children -then asks how much more is required to maintain that standard of living as
each child is added.
 SEE SLIDES
• Data flaws produce flawed guidelines
• child support that is too high for lower income obligors
• child support that is too low for those in the upper fifth of the income range
• SEE SLIDES

Income shares Approach

principal characteristics
• based upon the income of both parents
• uses tables to determine amount of support needed, based on marginal child expenditure date –
i.e. what would have been expended if parents lived together
• income share systems typically assume parents spend a lower percentage on shildren as income
rises, and thus apply a declining percentage to the combined parental income
• advantages
• no need to calculate individual child's needs
• takes into account both parent's ability to pay and needs
Taxation or Percentage of Obligor Income approache
Principal Characteristics
• guideline looks soley at obligor's income
• support is a fixed percentage of obligor income based on number of children
• percentage typically is constant across all income levels, whereas income share guidelines
assume expenditure lowers as income rises
• advantages – simple
• disadvantage – does not explicitly take into account custodial parent's income or refine
percentage based on income.

Oklahoma Guidelines
− Parenting Time Adjustment may be triggered when one parent is awarded physical custody of
child at least 121 overnight per year: Okla. Stat. Tit. 43 s 118E
− Overnight – overnight period of at least 12 hours requiring reasonable expenditure for child care
− PTA can lower the amount of support received by the custodial parent, particularly if the
custodial parent has a greater income than noncustodial parent.
− PTA can result in custodial parent with greater income being obligor – if custodial has
no more than 205 overnights
− PTA is presumptive, not mandatory, under statute – presumption rebutted if not in best
interest of child
Deviations Permitted
• parties, if represented by counsel, may agree to different amount
• guideline amount would be unjust or inappropriate under the circumstances
• But courts must make specific findings of reasons, amount guidelines SEE SLIDES

1) Imputed income
• when should courts consider income potential rather than actual income

3 imputed income scenarios

1. custodial parent of young children
2. noncustodial parent who is unemployed or underemployed
 3. voluntary change of income

Allowances or exceptions to guidelines

-means tested public assistance and child support for other children are not income generally
− SEE SLIDES 10/26/10

Income of subsequent spouse

− generally, step-parent = no duty to support step-child.
− SEE SLIDES FOR EXCEPTIONS

Fed Law – periodic review must be available for all IV-D orders at least once every 3 years
− triggered without need for showing of substantial change of circumstances

Fed Law prohibits retroactive modification of child support orders

− modification may take effect no earlier than the date the motion to modify is filed.
− Can lead to inequitable results, particularly when combined with the rule against non-
conforming payments.

Multiple Children
Child support under most guidelines today are not per child orders.
Aging out of one child is basis for modification, but does not automatically modify the order.

Post-Majority Support
• some states recognize right to post-majority support while child is in school.
• Others permit creation of trusts to accomplish the same thing.
• Can estrangement terminate duty of support for post-majority child, in states that recognize
liability for post-majority support? - states split

Adult Disabled Child

• Liability for support recognized in many states, including Oklahoma
• Okla. Stat. Tit. 43 sec. 112.1A
• States split on whether disability, or cause of disability must be known to exist before child
reaches the age of majority.

Federal Law requires some expedited process, so that order can be issued within a year of filing.
• Quasi-official officers
• administrative hearings

Qualified Medical Child Support Orders

• Employers and insurers must
• enroll child
• can't disqualify or disenroll
• withhold premiums froms employee's pay
• must give info to custodial parent and permit custodial to enroll, make claims, and
receive payment.
Enforcement of Financial Obligations
Invalid defenses
• noncompliance of custodial parent with visitation is not a defense to nonpayment of support in
Okla and most states
• in some states courts are permitted to so condition support payment prospectively in
intrastate cases
• UIFSA sec 305(d) reequires that order for support cannot be conditioned on compliance
with visitation in interstate cases.
• Statute of Limitations – states vary
• Oklahoma – court orcered child supportis not subject to a statute of limitations
• liability for support prior to a determination of paternity may only be imposed for SEE
SLIDES
• Fed law requires states to permit paternity to be established any time before a child's 18th
bday.
• Parent may bring till child is 18, child may bring action any time.
• Laches
• courts are hostile to this defense, but some permit it in some circumstances
• laches require
• unreasonable delay, and
• party asserting defense was materially prejudiced

Valid Methods of enforcement

• income withdrawal
• garnishment
• contempt and criminal prosecution
• license revocation
• tax intercept
• liens
• credit reporting
• passport denial
• termination of parental rights
• food stamp and loan denial
• IRS involvement
• Security or bond

Criminal Statutes
• State laws
• some punish for failure to provide necessaries, others for failure to meet legal obligation
• Okla – both types – Okla tit 21 secs 852-853
• Criminal prosecution must be instigated by DA
• most useful when no support orders exist, when contempt won't work.
• SEE SLIDES 10/28/10

Contempt for failure to obey court order

• nonpayment must be willful
 • person in contempt, contemnor, can be jailed or fined
• can be used to enforce child support, alimony, property division, atty fee
Income Assignment
• a provision in a support order that assigns a specific portion of the obligor's periodic income to
the obligee
• immediately effective – SEE SLIDES FOR EXCEPTIONS 10/28/10

NEED TO KNOW DIFF BETWEEN IV-D CASES AND NON-IV-D CASES

Custody
3 issues
1. Proper role of court?
2. To what extent should preferences and presumptions be used instead of case by case?
3. What factors are properly considered?

The Role of the Court

• state has power to determine custody
• a court is the proper body to make custody determination
• custody provisions should be part of every divorce decree, even if parents agree as to custody

Even when parents agree:

− in most states, the judge is not bound by parent's agreement
− court may review agreement to determine if child's best interests are promoted and enter a
different order

In some states, courts must approve parents agreement unless:

• found to be contrary to child's best interest (findings must be on record), or
• clear and convincing evidence it is not in best interest of child
• or rebuttable presumption exists agreed joint custody is in child's best interests

ALI – court must follow parent's agreement unless it is harmful to child

Vocab
Sole Custody – one parent gets legal and physical custody ad the other typically gets visitation
Joint Legal – parents have equal voice in major decisions education, religion, medical care
Joint Physical – each parent has residential care a significant period of time
Split custody – each parent is awarded sole custody of of the children
alternating – parents alternate sole custody (rare)

Many states are abandoning the terms “custody” and “visitation”

Alternative: “parenting plans” that allocate parental rights and responsibilities or residential care and
access or contact

Parenting Plans may be reached by agreement and submitted to court

terms – living arrangements, health care, education, communication, and dispute resolution between
parents
Restrictions on Judicial Discretion
− Guiding Principle: best interst of the child
− Best interests case by case approach
− Courts may use only very limited presumptions (ex. Abuse) or specific factors (ex.
Willingness to facilitate visitation) that restrict court's discretion only in certain cases.

All states now permit joint custody (both legal and physical).
• Some states create presumption favoring joint custody.
• In most states, joint custody may be awarded even if one parent objects.
ALI approach (and W.VA)
• Custody should reflect the parent's caretaking roles during the marriage.

Other Factors Frequently Considered

primary caretaker
financial disparity
remarriage of one
post decree time available
splitting of siblings
substance abuse
gender and ages of child

Spouse Abuse
− basis for presumption against abuser
− statutory factor
− basis for presumption against joint custody
− some states provide victim's departure from home cannot be negative factor

Child's Preference
Various approaches for child over certain age:
• right to choose, unless parent is unfit
• views must be considered or heard by court
• court must make findings why child's choice not followed (Okla)

Sexual Activities
• Conduct must have a detrimental effect on the child to be considered
• courts split over homosexuality behavior, but many follow this trend.

Willingness to facilitate contact

• willingness to encourage continuing contact with other parent is a statutory factor
• “Friendly Parent” Provisions

Physical handicap not prima facie evidence of unfitness or detriment.

Factors that interact with Constitutional Principles

• Race
• Consideration of mother's interracial marriage as a factor in modification violated Equal
Protection Clause (Palmore v. Sidotti p. 648)
 SEE SLIDES for religion

Visitation
• court can place restrictins if warranted
• time or place restrictions
• can't drive with child
• can't leave geographic area with child
• courts very reluctant to impose on non-marital sexual activities unless detrimental to
child (e.g. dad can't have gf over during visitation)

Modification of Custody
• Always modifiable until child reaches majority
• Generally all states require
1. permanent, substantial, and material change in circumstances, and
2. modification is in best interests of child
• Burden of Proof is on the party seeking modification
• generally, change must be in the custodial parent's circumstances, not just improvement
in non-custodial parent.
• Sometimes newly discovered evidence can lead to modification; but the party bringing
this exception must show that they could not have originally have discovered under
ordinary diligence.
The Changed Circumstance Rule:
1. puts BOP on parent seeking modification
2. to change in circumstances and modification is in best interest of child
3. limits evidence to post-decree conduct (can't drudge up old arguments and try to “re-do”
custody)

Parties may always modify by agreement as long as the court approves the arrangement.

Mod to Joint Custody

• In this case, some courts require only best interests

Mod from Joint Custody

1. most courts apply same change of circ test
2. some require higher standard – clear and convincing ev of changed circumstances
3. some impose only best interest test – e.g. OK

Child's preference can count as the changed circumstance and can be the basis to modify w/o negative
change in mom's situation.

Relocation
SEE SLIDES 11/11/10

Current approach
1. custodial parent must show sincere good faith reason
2. noncustodial must show risk of harm or detriment to child from move or not in child's best
interests
• states vary as to who has BOP
Relocation can interfere with const. right of travel. However, there is also conn right to involvement
with kids so these sometimes interact.

SEE SLIDES FOR TROXEL

SEE SLIDES FOR PSYCHOLOGICAL PARENT

Doctrine of Equittable Parent

1. consent of parent to relationship
2. lived with child in household
3. assumed significant responsibility w/o compensation
4. long enough to bond (ALI: 2 years)

11/16/10
Jurisdiction

SMJ
• State Courts
• Every state has a court with jurisdiction to hear dissolution
• Jurisdiction may vary with the relief that you are seeking

Status Financial (e.g support)

SMJ Need correct state Correct state court
court
Durational Most states require 1 none
Residency* party reside /
Requirement domicile for 6 weeks
to 1 year
PJ Con Due Process; Def served in forum
-sometimes residency def domiciled in forum
requirement via stat. def consents
But won't be longer def has min contacts
than DRR

* Residency in Good Faith = Domicile

• Federal Courts
• Domestic Relations Exception
• even if parties are diverse, fed courts interpret the diversity statute to exclude
jurisdiction over actions seeking the granting or modification of
• divorce
• alimony (i.e. separate maintenance) or
• child custody decrees
• Ankenbrandt v. Richards (1992) – recent federal decisions apply it to
enforcement proceedings as well.
• Special Statutory Limitations
• Child custody
 • UCCJEA or UCCJA and PKPA
• ChildSupport (simultaneous proceedings and modification)
• UIFSA and Fed Full Faith and Credit for Child Support Order Acts
• Alimony
• UIFSA (simultaneous proceedings and modification)

SEE SLIDES FOR DURATIONAL RESIDENCY REQUIREMENTS

• Personal Jurisdiction
• power to terminate marital status
• constitutional requirement
• Due Process – 1 party must be domiciled in the forum state. Williams v.
North Carolina (1942)
• despite theoretical problems, state courts still find this sufficient
• would other bases suffice
• technical military personnel exception \
• Seeking spousal support or other financial relieft from second state
• when a state with no basis for PJ over D issues an ex parte default divorce, the
absent spouse may retain his/her right to support or other financial relief in a 2nd
state even after the divorce
• ex parte= D doesn't make an appearance. SEE SLIDE 11/16/10
• Continuing Jurisdiction
• Based on statute or equitable principles, in all states the court that issues the original
decree will retain continuing jurisdiction to enforce the decree.
• Federal Military Pensions
• 10 USC s1408(c)(4) controls (not state law)
• personal jurisdiction to divide a federal military pension exists only if the member of the
armed forces is
• a resident of the forum state (other than because of military assignment)
• domiciled in the forum state
• or has consented to jurisdiction
• Collateral Attacks
• decrees entered in other states
• anothers state's jurisdiction are entitled to full faith and credit if issuing court had
smj, pj, and notice was given, and if 1st judgment not obtained by fraud.
• When can a second state make its own decision about whether the 1st court had smj, pj or
notice?
• A 2nd state can reexamine the issue of whether the issuing court had jurisdiction if
the decree was issued by default and the defendant entered no appearance in the
first action. (Williams v. N. Carolina II (1945)).
• Burden of proof is on party who asserts the invalidity of the decree.
• If D made an appearance in the first action, regardlesss of whether D contested
jurisdiction or not in the first case, the decree may not be collaterally attacked in
a 2nd state if it is not susceptible to collateral atttack in the issuing state. (Sherrer
1948)
• SEE SLIDES 11/18/10
 • Venue
• venue focuses on proper county. Rules vary by state.
• See also UCCJEA s. 207
• Foreign Divorces
• Comity: affords recognition if
• issuing court had smj under its own rules
• won't violate public policy or recognizing state
• US notions of due process met
• one party domiciled in nation
• D given notice
• Exception: bilateral Quickie divorces – neither party domiciled in forum
• one party physically present and appears in foreign court
• other party appears in person or through attorney and consents to jurisdiction
• recognized by NY, Virgin Islands
• most states do not recognize
• NO states recognize Unilateral or mail order foreign divorces where neither party
physically appears
• Estoppel
• Who can be estopped from attacking the validity of a decree?
• Spouse who obtained the decree
• original partner of spouse who obtains the decree, if he or she accepted benefits
or remarried
• 2nd spouse of spouse who obtained the decree, if he or she participated or
remained int the 2nd marriage long after discovery of the defect
• States vary regarding the extent to which they apply estoppel.
• Local Action Rule
• Where parties own land outside the forum state, the divorce court does not have
jurisdiction to award title, even if the court has personal jurisdiction over the parties.
• BUT
• forum divorce court can divide property by ordering one party to convey real
property located in the other state
• forum state may hold party who refuses in contempt
• situs state (state where property is located) will recognize and enforce
such orders
• Tribal Courts
• State courts have no jurisdiction to grant a divorce when both parties are tribal members
domiciled in Indian Country. (Williams v. Lee 1959)
• Okla District Ct Rule 30 – full faith and credit to tribal judgments for tribes that grant
reciprocity to state court judgments

SEE SLIDES FOR ALPHABET SOUP (UIFSA)

• Simultaneous proceedings rules is subject to modification rules (and thus rarely applicable in
modification proceedings)
• first filing controls in simultaneous alimony actions
•
 SEE SLIDES FOR ENFORCEMENT OF SUPPORT ORDERS 11/18/10

Modification of Child Support

4 requirements to modify child support order of another state
1. modifying state has smj under its own law, pj, and gives proper notice
2. either:
• individual contestants filed consents on record in issuing court to confer jurisdiction on the
modifying state (parties agreed), or
• neither child nor parents reside in the issuing state (everyone moves away)
3. order is registered
4. petitioner must be a nonresident of modifying state unless parties agreed or both reside in the
modifying state.\

Short hand Rule

1. Modifying court has smj, pj, notice
2. either everyone moved away from issuing state or parties agree on what state can modify
3. order is registered
4. petitioner must be a nonresident of modifying state (to avoid homecourt advantage) unless other
party consents.

Only aspects that would be modifiable in issuing state can be modified in modifying state. Duration
often is not modifiable. UIFSA 611(c)

No state may modify the alimony order issued by a court of another state.

UCCJEA
− clarified UCCJA provisions to create uniformity
− harmonized provisions with PKPA
− created uniform enforcement procedures
− Currently 48 states and DC have enacted it, and it is under consideration in the other 2 states
MA and VT are considering it
− Home state is prioritized
− Is a SMJ statute
− Parties cannot confer jurisdiction by agreement in contravention of these statutes.
− SEE SLIDES for PJ views

Have to know UCCJEA for exam.