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MARRYING Introduction: Collaborative- non-litigation; agree ahead of time (parties and attorneys) cannot agree to this and then

n file an action if it doesn't work out. Must sign a binding contractual agreement that says that these attorneys will not represent any of these clients in a litigation action. Parties, lawyers, at least 1 mental health professional, forensic economist/financial expert. Cooperative- if for any reason court intervention is necessary the Judge is more like a facilitator rather than a decision maker. What is marriage? - a contract btwn. 2 people. So why can't any 2 people get married?-- reasonableness factor, state will step in when they perceive some wrongdoing. Marriage is something at the core of our society and is the foundation of our society (Supreme Court). State has an interest in promoting families and protecting children. Therefore society has a stake in who may marry and promoting marriage. Society promotes "good" marriage. Limit the ability to dissolve marriage (before no fault divorce). A state sanctioned activity (need it to get into and out of marriage). Legal doctrine of exclusivity- children have only 2 parents (preferably married and of opposite sexes). Adults stand in relation to children either as full legal parents or as strangers. Parents have exclusive control over and access to children, without the possibility of some access or limited control or input. Constitutionality of Marriage Restrictions: Marriage is a fundamental right but strict scrutiny only applies when dealing with a marriage that involves a suspect class or a first amendment right. Loving v. Virginia- the Court invalidated a statute which prohibited interracial marriage. The law violated the equal protection clause of the 14 th Amendment and race is a suspect class subject to strict scrutiny (compelling governmental interest, least restrictive alternative). The statute also denied due process for it deprived each individual of significant freedom of choosing whom to marry. Marriage is a fundamental right. Zablcoki v. Redhail- Restrictions on the right to marry that are based on poverty are unconstitutional. Reasonable regulations that do not significantly interfere with decisions to enter into marriage may be upheld. Only those classifications that directly and substantially interfere with the right to marry will be reviewed under the strict scrutiny test. Turner v. Safley- Special contexts (prisons) Court held that Zablocki applies even in prison settings which have traditionally been subject to considerable state regulation. Unless a life sentence or part of the punishment. Michael H. v. Gerald D.- presumption of legitimacy. Can only be attacked by the mother and biological father together. Or the husband can elect to give away his rights. The interest established solely by biological parenthood plus an established parental relationship is not a liberty interest accorded substantive due process protection and cannot overcome the presumption of legitimacy.

Annulments: Declares a marriage void whereas a divorce declares that a valid marriage has come to an end. Sought for religious or jurisdictional reasons. Declaration of invalidity relates back to the inception of the void marriage. At common law resulted in the bastardizing of children born during the relationship. Statutes have modified this harsh result. Void- a void marriage is invalid from inception and may be challenged by the parties themselves or by 3rd parties, and may be collaterally attacked. Void ab initio o Grounds- Bigamy, incest Voidable- valid from inception and requires that one of the parties take judicial action to establish it invalidity. It may be attacked only by the parties and during the lifetime of the marriage and cannot be collaterally attacked. o Grounds- Fraud, duress, and nonage Traditional Restrictions on Marriage: In re Walker- Bankruptcy- not a restriction on marriage. A bankruptcy trustee has tried to stop the remarriage of a bankrupt person. Care for children in a new marriage is unfair to the creditors. The creditors should come first. The Court does not agree with this, so bankruptcy is not a restriction on marriage. Incest: Consanguinity- All states restrict marriages by those related by blood. o Singh v. Singh- based on strict statutory interpretation (the common meaning of uncle and niece) the court holds that marital restrictions based on consanguinity extend to relationships of the half blood as well as whole blood. Affinity- a few states restrict marriages btwn those parties related by affinity, ends upon divorce. o Back v. Back- Mr. Back marries a widow who has a daughter by her former marriage. 4 years after divorce, he marries his former wifes daughter. The marriage is valid because the relationship by affinity ceased upon termination of Mr. Backs marriage to his 1st wife. Age: All state statutes establish minimum ages for marriage. Persons below those ages can marry with parental and/or judicial consent. Promotes marriage stability. At common law, nonage rendered marriage void. Today, such marriages are voidable. Moe v. Dinkins- Marriage is the exclusive province of the State, the state is the only entity that can regulate marriage. Age is only under a rational basis of scrutiny because it is not a suspect class. The state usually wins under a rational basis. The statute is regulated under the parens patriae power. The fact that the State has elected to use a simple criterion, age, to determine probable maturity in the absence of parental consent, instead of requiring proof of maturity on a case by case basis, is reasonable, even if the rule produces seemingly arbitrary results in individual cases. This statute does not prevent marriage it merely delays access to marriage.

Polygamy: Bronson v. Swenson- the right to privacy and other individual constitutional rights do not protect polygamist marriage as a free exercise of religious beliefs. Sanderson v. Tryon- polygamy is only one factor to be considered when deciding the best interests of the child. A finding that one parent practices polygamy is insufficient by itself to deny a parent custody of the children. Same Sex: Full faith and Credit Clause- Art. IV, sec. I: "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." o Exceptions: Does not require a State to apply another State's law in violation of its own legitimate public policy. If it is abhorrent/repugnant to our citizens.-- must be litigated!! DOMA- Defense Of Marriage Act- A state shall recognize the acts, records, or judicial proceedings of a sister state unless it is repugnant to that state's citizens. DOMA is an example of Congress exercising its powers under the Full Faith and Credit Clause to determine the effect that any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage has on the other States. A state's rigid and liberal interpretation of the Full Faith and Credit Clause would create a license for a single State to create national policy. DOMA only applies to same sex marriages and doesn't require these cases to be litigated. States must adopt DOMA in order for it to apply to the State, but the states don't have to adopt it. Has 2 effects: o No state need treat a relationship btwn persons of same sex as marriage, even if recognized in another state. o The fed. Gov. may not treat same sex relationships as marriages for any purpose even if recognized by one of the states. Baehr v. Mike- Hawaiis sex based classification for marriage unconstitutional under States ERA. After this case the State passed an amendment limiting marriage to opposite sex couples. **No Courts have found the 14th Amendment equal protection argument effective. Successful claims have been under a States Constitution which are normally broader.** Baker v. State- Vermont is constitutionally required to extend same sex couples the same common benefits and protections that flow from marriage. VT enacts civil unions. Common Benefits Clause- government is, or ought to be, instituted for the common benefit, protection, and security. Other states do not have to recognize VTs civil unions. California and Massachusetts recognize same sex marriages. Alaska- State must show a compelling interest in refusing to issue marriage license. Voters passed amendment that defines marriage btwn one man and one woman. Canada has domestic partnership laws. 3

Goodridge v. Department of Public Health- the MA Constitution requires that the exercise of the States regulatory authority not be arbitrary or capricious. Under both the equality and liberty guarantees, regulatory authority must at the very least serve a legitimate purpose in a rational way, a statute must bear a reasonable relation to a permissible legislative objective. The procreation argument does not work since opposite sex couples are not getting into marriage for sole purpose of having children and some couples have decided not to have children. The Massachusetts Constitution forbids the creation of second class citizens and therefore may not deny the protections, benefits, and obligations of civil marriage to same sex couples wishing to marry. Wilson v. Ake- The U.S. Constitution does not protect a persons right to enter into a same sex marriage. Homosexuality is NOT a suspect class that would require DOMA to fall under strict scrutiny and therefore falls under rational basis. DOMA is the opposite of Full Faith and Credit. It proscribes instead of prescribes. Transsexuals and Marriage: M.T. v. J.T.- A person may become a member of the opposite sex if a sex change operation successfully alters the physical structure so that he or she may function as a member of that sex. Mental Incapacity: Remains a widely accepted restriction. Temporary incapacity is voidable by the person with capacity. Void ab initio- voidable by a 3rd person. Restrictions on the Procedure for Marrying: Rappaport v. Katz- proper attire for wedding at city hall. The Federal Courts should not get involved in supervising marriage forms and procedures in city clerks offices, which are an area fundamentally of state concern. Federal judges have too much to do to become involved in this type of dispute which is best and most appropriately resolved by the states and city councils. Lester v. Lester- Antenuptial agreements which purport to invalidate the marriage are unenforceable. The state has a right to regulate and insist upon decency and morals in its maintenance. Private individuals may not by agreement set aside the law of the land. They may not declare that which is valid in law null and void. The regulation of divorce is as important as that of marriage. Johnston v. Johnston- In order to obtain an annulment of marriage on the basis of fraud, the fraud must go to the essence of the marital relation. A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife. o Billowit v. DeLowsky- husband held himself out to be an Orthodox Jew in order to convince the wife to marry him. He was not willing to actually follow the regulations of the Orthodox faith. He knowingly misrepresented his beliefs, she relied on it, the fraud was gross and far reaching and thus goes to the essence of the marriage.

Common Law Marriage: In re Estate of Love- A common-law marriage may be found when a man and woman cohabitate and hold themselves out as husband and wife, such that society views them as married. Documents are not necessary to support the existence or the finding of a common law marriage. Did the couple intend to be married whether or not they went through a ceremony? Do other people consider them married? MARRIAGE Traditional Models of Marriage: Common law necessaries doctrine- a husband had a common law duty to provide necessaries to his wife and children. Designed to protect married women who surrendered their property to their husbands. At common law, courts permitted indirect enforcement of the husbands duty of support. Courts allowed 3rd parties to sue the husband to enforce his duty to provide a wife or children with necessaries. (generally include food, clothing, shelter, and medical care.) o McGuire v. McGuire- No support payments can be granted where the parties continue to live together as husband and wife. The living standards of a family are the concern of the household and not the courts. Graham v. Graham- the court protecting the little woman. A contract between persons contemplating marriage to change the essential incidents of marriage is illegal. Husband and wife contracted for $300/month allowance to husband for moving around with wife. Court held that contract is violative of public policy as it is a mans prerogative to work wherever he sees fit unrestrained by contract with his wife. Challenges to the traditional roles: Dunn v. Palermo- a woman upon marriage may elect to retain her maiden name absent fraudulent intent. A common law married woman assumed her husbands name based on custom. This is about rights and identity. The right to their own identity not merely an extension of the spouse. Bradwell v. Illinois- the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. Man is, or should be, woman's protector and defender. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. Gender: Orr v. Orr- state statutes which impose alimony obligations on only one sex are unconstitutional. This case is the reason why gender neutral statutes are all over the place. Classifications by gender must serve an important governmental function and must be substantially related to achievement of the governmental objectives. (intermediate scrutiny) 5

Knussman v. Maryland- gender classifications based on stereotypes of gender roles violate the equal protection clause. o Family and Medical Leave Act- allows for family members to take time off to care for dependants and spouses (children, parents, immediate family). Federal statute that allows man or woman to take a certain amount of leave to care for a family member even if the other one could take leave instead. Who is eligible for FMLA?-- company with over 50 employees within a 75 mile radius, who has been with the company for Required to use up all sick leave, vacation time and then can use FMLA. Can take 12 weeks over a 12 month period. Don't have to take it consecutively. Can return to work in the same position, if unavailable the employer must give you a substantially similar position. Entitled to maintain their health coverage. S.M. Miller Essaybastard needs to get off lazy ass and do something for his family. Lets wife do everything even though he works at home as a writer and she is a doctor with own practice outside of the home. Children call wife at work for EVERYTHING. She was the psychological parent and primary caregiver b/c the husband resented having kids. She knew their schedule and various other information about the children. Private Contract: Premarital agreementso Traditional view- void as contrary to public policy. o Modern Approach- increasingly recognized, parties may not enter into an enforceable agreement about child support or child custody. Must satisfy statute of frauds. Valid if: Provides full disclosure Is fair and reasonable Entered into voluntarily by both parties. Edwardson v. Edwardson- an antenuptial agreement disposing of property and maintenance upon divorce is valid if made after full disclosure and if it is not unconscionable at the time enforcement is sought. Simeone v. Simeone- a prenuptial agreement entered into after full disclosure is binding regardless of whether it was reasonable or fully understood by both parties. McCourtney v. Imprimis Technology, Inc.- where an employee is terminated for persistent absences due to a sick baby, she is not disqualified from unemployment compensation if she was a good employee, her absences were excused, and she made a good faith effort to find adequate child care. Unmarried Fathers: Stanley v. Illinois- under the Due Process Clause of the Fourteenth Amendment, unwed father was entitled to hearing on his fitness as parent before his children could be taken from him in dependency proceeding instituted by the State of Illinois after the death of the children's natural mother. Presumption under Illinois law that unmarried fathers are unsuitable and neglectful parents is violative of due process and equal protection; parental unfitness must be established on basis of individualized proof. 6

Equal protection argument btwn unmarried fathers and unmarried mothers and married parents of either gender. o Created a new constitutional protection under the 14th amendment. Protection of life, liberty, and property. Liberty has been interpreted to include other fundamental rights of which the right to the care, custody, and companionship of your children is a part of. Lehr v. Robertson- the mere existence of a biological link does not merit equivalent protection. Mailing a postcard to the putative father registry would have protected putative fathers inchoate rights. Where a putative father had never established a substantial relationship with the child, the failure to give him notice, despite the states knowledge of his existence or whereabouts, does not deny the putative father due process or equal protection. o Predecessor to the putative father registry in FL was to put a posting in a major newspaper looking for the father or anyone with information. Caban v. Mohammed- equal protection clause of the 14th Amendment was violated by the sex-based distinction btwn unmarried mothers and unmarried fathers in New York Domestic Relations Law provision, which permits an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding consent, since such distinction bears no substantial relation to any important state interest. Caban established his legal responsibility and had a custodial relationship. Doctrine of Family Privacy: Government supposed to stay out of private lives, only certain things they should get involved in. Pierce v. Society of Sisters- established constitutional doctrine of family privacy. The statute which made children over a certain age go to public school unreasonably interfered with the liberty of parents to direct the upbringing of their children. Griswold v. Connecticut- laws restricting the use of or dissemination of information about contraception by or to married couples violates the constitutional right of privacy. Right to privacy is a fundamental right and must pass strict scrutiny to satisfy constitutional muster. An un-enumerated right in the 9th and 14th Amendments. Eisenstadt v. Baird- a statute treating married and unmarried people differently regarding contraceptive devices is unconstitutional. Equal Protection. The right of privacy belongs to the individual and not to the marital relationship or to married partners. Roe v. Wade- 1st trimester- government must butt out b/c there is no compelling state interest and people have the right to privacy and the right to abortion is situated in the 14th Amendments right to liberty. 2nd trimester- government can regulate somewhat. 3rd trimester- moves toward viability so abortion only possible in life threatening/health circumstances, the states interest in protecting potential life justifies the state in regulating and even proscribing abortion. Planned Parenthood v. Casey- trimester approach gone and moves toward viability gone. Before viability woman has right to abortion without interference. After viability the state may restrict abortions providing there are exceptions for therapeutic abortions and the state has legitimate interests throughout o 7

pregnancy in protecting maternal health and potential life. Only where the state regulation imposes an undue burden on a womans ability to procure an abortion does the power of the state violate the liberty interest protected by the Due Process Clause. Ayotte v. Planned Parenthood- judicial remedies should be narrowly tailored to address the issue raised. Must always have provision for the allowance of an abortion when the health and life of the mother is endangered during the duration of the pregnancy. The court shouldve declared the specific part of the act unconstitutional not the whole thing. Lawrence v. Texas- the Equal Protection Clause of the 14th Amendment protects freedom to engage in private conduct among heterosexual and homosexual partners. Homosexual persons have the liberty to define their relationship and experience it within a private home just as heterosexual persons do, absent injury to the individual or abuse to a legally protected institution. Intimate choices made by married or unmarried persons are a protected form of liberty. Private behavior among consenting adults should be protected as a liberty interest when the behavior is not harming another, but the court fell short of declaring it a fundamental right. Tort and Criminal Law: Marital Rape Common Law- provided for a marital exemption from rape. A married man could not be guilty of raping his wife. Based on the wifes implied consent to intercourse, the idea of the wife as property, the fiction of marital unity, and the doctrine of family privacy. Modern Trend- many jurisdictions have abolished or limited the exemption either by statute or case law. One of the following approaches: o Preclude the husbands resort to the exemption if the parties are living apart o If one party has initiated legal proceedings o Some states require that parties are living apart and one party has initiated legal proceedings. Some states extend immunity from prosecution to nonmarital cohabitants. Battered Woman Syndrome People v. Humphrey- Evidence of Battered Woman Syndrome is relevant to both the reasonableness and the subjective belief for the necessity of self defense and a jury may consider the evidence for both prongs. R. v. Malott- Where the reasonableness of a battered womans belief is at issue in a criminal case, a judge and jury should be made to appreciate that a battered womans experiences are both individualized, based on her own history and relationships, as well as shared with other women, within the context of a society and a legal system which has historically undervalued womens experiences. Tort Liability Giovine v. Giovine- Four part test to state a cause of action for battered womens syndrome: o Involvement in an intimate relationship o Physical or psychological abuse o Recurring physical or psychological injury 8

o Inability to take any action Legal Responses to Violence Mitchell v. Mitchell- A party requesting relief from an order affecting the safety and well being of another party must make a more substantial showing warranting revision or being vacated. C.O. v. M.M.- The court must apply the express statutory factors in determining the appropriateness of an abuse prevention order. Turner v. Lewis- Paternal grandparent of a child whose parents were never married is related by blood to the childs mother for purposes of the abuse protection statute. Ba v. United States- Temporary consent to contact while a civil protection order is in effect does not vitiate the order when consent is revoked. 2 persons cannot vacate the order, the court must vacate the order. Mandatory Arrest Policy Domestic abuse used to be a crime against the person it is now a crime against the state. Baird Doctrine (Eisenstadt v. Baird)- not about couples rights but individuals rights. Reason why domestic violence intervention does not violate the doctrine of family privacy. Town of Castle Rock v. Gonzalez- the Due Process clause does not entitle the mother to a property interest in the enforcement of the restraining order against the father. Although the restraining order statute provided that police shall use every reasonable means to enforce a restraining order, the language did not make the enforcement of restraining orders mandatory but rather discretionary, arrest is not always possible or practical; the statute provided for an alternative to immediate enforcement but did not expressly give a protected person a right to demand an arrest. Healthcare Cruzan v. Director, Missouri Dept. of Health- must have clear and convincing evidence that person in vegetative state would want to be withdrawn from support OR must have clear and convincing evidence that there will be a recovery. Push for living wills as an outcome of this case. Skylarsky v. New Hope Guild Center- Spouse has legal duty to seek medical care of helpless or incapacitated adult spouse in need of medical service. DISSOLUTION OF MARRIAGE New York is the ONLY state in the Union that does NOT have no fault divorce, college is part of the payment plan for child support. FL- child support required until the age of 18 or graduation of high school whichever comes last. Time restrictions in Virginia- if no children in the marriage the waiting period for divorce is 6 months, if children are involved then 1 year. Breach of promise action- engagement in which money has been spent planning the wedding and broken off can sue for restitution. These types of suits will not go over well in the US today. o What happens to the engagement ring?ring is considered to be a gift in consideration of marriage. Most states hold that no matter who breaks it off, the 9

ring goes back unless she paid for it. Used to be that if he broke it off she got to keep it. o What about the other gifts in the duration of the relationship?she gets to keep them; not considered as a gift in the contemplation of marriage. o What if its a family heirloom?it goes back to the family because the intent was to keep it in the family. Alienation of affection- so and so stole my spouse so he/she should pay me money. Most states have outlawed these kinds of cases. Dissolution of marriage- a contract that ends the marriage with a judges signature. Judgment of divorce- court will look it over and check for fairness. They will ensure that the minimum guidelines are met for the children. Then will issue a separate judgment of divorce. You have the option to have the stipulation of settlement incorporated into the divorce in case you need to enforce something. Jurisdiction: Comity- state recognition of foreign (out of country) divorce. Divorce must have personal service, can only do alternate service if provided by the court. Default judgment in divorce can be reopened if contested. It is not a decree on the merits of the case. Fink v. Fink- in order to establish a new domicile the intent to do so must be unqualified and not conditional upon the happening of some future events. Sosna v. Iowa- Federal courts will not hear original divorce, support, or custody cases. A duration requirement for divorce does not violate the constitution b/c it merely delays not bars for the courts and the state has an interest b/c all the consequences of a divorce. o FL has 6 month residency requirement. Kulko v. Superior Court of California- a defendant must have sufficient contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Access to Divorce: Boddie v. Connecticut- The State cannot require an indigent to pay filing fees and court costs prior to filing for divorce. Violates due process because the cost forecloses an indigents right to be heard. Based on the position of marriage in societys hierarchy of values as well as the state monopolization of the means for divorce. In re Smiley- There is no right to a court appointed counsel in divorce because there is no liberty interest at stake. Traditional Grounds and Defenses/No-Fault Divorce: Used to have to prove to the state that you needed a divorce. There was no right to a divorce and the state got to decide whether or not to grant the divorce. Must have actual grounds! Cannot allege grounds. Other person could defend against the grounds. One party wants a divorce and the other doesn't- matter of tactics, or they really don't want out. Grounds protect the weaker spouse from being abandoned. In many states you can still allege grounds as an option. Many states will take grounds into consideration for the settlement. Sometimes the other party will counterclaim for time to see if they can get the marriage to work out, or maybe get a better deal. Grounds: 10

Indignities- AKA Cruel and Inhuman treatment, could be physical, verbal, or emotional, or combo. o Must show a course of conduct that is so severe as to create an adverse effect on plaintiffs physical or mental well-being. Adultery- MUST be proven. Collusion- when the spouses agree or fabricate evidence that one partner commits a marital offense to provide grounds for divorce. Very difficult to prove. Most of these cases fall under cruel and inhuman since its so difficult to prove. o Must show an opportunity to commit the offense and disposition to commit it. Standard of proof is a preponderance of the evidence. o Prima facie case can be established even when the only testimony is that of a private investigator. Desertion/Actual Abandonment- actual abandonment required. Some states have a time period required (NY is 1 year). o Must show a voluntary separation with intent not to resume cohabitation which is without the partners consent or without justification. Imprisonment- different states have different time periods. (NY- a sentence over 3 years) Doesnt matter if they actually serve the whole sentence. Insanity- must be proved by the defendant that a preponderance of the evidence. o MNaughten- cannot distinguish btwn right and wrong o Durham- action was a result of mental illness Constructive abandonment- he/she has stayed in the marriage but has not had relations for a certain amount of time. Most state time requirements are usually 1 year. If both parties agree it would be hard to disprove since no one is in the bedroom with them. Conversion divorce- NY is the only ground state left. Legal separation agreement converted into a divorce. All of the terms of the separation are determined. Once filed, after 1 year either party can use as grounds for divorce. Divorce must be filed as a separate action in court. Can use reconciliation as a defense. Defenses: Recrimination- bars a divorce if both if both spouses are at fault. To obtain a divorce on the basis of indignitites, it must appear from the evidence that the plaintiff was the innocent and injured spouse (Rankin v. Rankin) Connivance- participation in, or consent to, the defendants wrongful conduct. A spouse providing the other spouse with the opportunity and inducement to commit adultery cannot obtain a divorce when such is committed. (Sargent v. Sargent) Condonation/Reconciliation- forgiveness by a spouse, usually implying resumption of sexual relations. Collusion- occurs when the spouses agree to divorce by means of the commission of a marital offense. Connivance is consent by one spouse whereas collusion is a spousal agreement to commit a marital wrong. Insanity- must be proved by the defendant by a preponderance of the evidence, overcoming a presumption of sanity. (Anonymous v. Anonymous). No Fault: 11

Uniform Marriage Divorce Act- modern no-fault legislation- divorce caused by gradual breakdown of marriage and neither party should be punished. May be established either by a 6 month separation, or a showing of serious marital discord adversely affecting the attitude of one or both of the parties to the marriage. Cannot promote bad marriage. Does not mean no negotiation. ONLY applies to divorce. Everything else must still be settled, either through negotiation, mediation, or through the courts. Eliminates the concept of leverage. California led the way in 1969- will increase the family harmony (more amicable resolution). Can have private divorce (details private). Religious limits on Civil Divorce: Aflalo v. Aflalo- where resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the 1st and 14th Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. Annulments and Separations: Void- a void marriage is invalid from inception and may be challenged by the parties themselves or by 3rd parties, and may be collaterally attacked. Void ab initio o Grounds- Bigamy, incest Voidable- valid from inception and requires that one of the parties take judicial action to establish it invalidity. It may be attacked only by the parties and during the lifetime of the marriage and cannot be collaterally attacked. o Grounds- Fraud, duress, and nonage Relation Back Doctrine- the annulments declaration of invalidity relates back to the inception of the void marriage. Some statutes now permit spousal support awards following annulment. Annulment resulted in bastardizing children born during the relationship. CUSTODY OF CHILDREN Custody and Visitation: Parenting- many different kinds: o Sole Custody- child lives with that parent, physical and legal custody. Noncustodial has visitation o Joint Custody- shared physical and legal custody. May or may not be 50/50 depending on the situation. o Joint Legal Custody- not really a 50/50 split but the decisions are made together- health, education, and welfare. Physical custody is not 50/50. o Co-parenting- still able to talk about the kids and have same ideals about children, rules at both houses are the same. o Parallel parenting- where 2 parties have different skills and values. The parents recognize the others skills and values. Common Law- dad got custody because he had the most money. People stayed in bad marriages because of this. Tender Years Doctrine- rebuttable presumption that the children should remain with the nurturer (mother). A burden of proving the unfitness of the mother. 12

Best Interest Standard- primary caregiver, psychological parent. Highly discretionary and imprecise. o UMDA section 402- the court shall determine custody in accordance with the best interest of the child. (The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.) The court shall consider all relevant factors including: The wishes of the childs parent or parents as to his custody The wishes of the child as to his custodian The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the childs best interest The childs adjustment to his home, school, and community The mental and physical health of all individuals involved. o Constitutional Factors: Race Palmore v. Sidoti- custody of a child cannot be divested merely because of the remarriage to a person of a different race. A single factor alone does not render the parent unfit for custody. Jones v. Jones- the court may consider race in a custody determination as the issues relate to a childs ethnic heritage and the more appropriate parent to address that heritage. Religion ALI Principles- prohibits a court from considering the religious practices of either a parent or child in custody decision making. 2 exceptions: Religious practice presents a severe and almost certain harm to the child If necessary to protect the childs ability to practice a religion that has been a significant part of the childs life. Zummo v. Zummo- a court cannot restrict a parent from exposing his children to his religious practices unless the activity substantially threatens to harm the children, and the restriction is the least intrusive means possible. Kendall v. Kendall- When demonstrable evidence of substantial harm to the children has been found, a divorce judgment limiting the childrens exposure to religious indoctrination does not burden the parents right to practice religion under the Free Exercise clauses of the state and federal constitution. In re Carney- a physical handicap that affects a parents ability to participate with his children in purely physical activities may not by itself be used to deny custody. Hassenstab v. Hassenstab- the party seeking a change of custody must prove that a material change of circumstances has occurred. **Age is NOT a material change!** Wetch v. Wetch- a trial court must consider pre divorce conduct on a change of custody motion if the original custody order was stipulated. When the court considers a request to modify an original custody award it must determine 2 issues: 13

Whether there has been a significant change of circumstances since entry of the original divorce decree and custody award. o Whether the changed circumstances require the best interests of the child custody to be modified. McMillen v. McMillen- wishes of child are not controlling but are a contributing factor in determining the childs best interest.- MINORITY RULE!! Schult v. Schult- trial court has the discretion to determine on a case by case basis whether to allow the childs attorney to advocate for a position contrary to the guardian ad litem. Visitation: Uniform Marriage and Divorce Act- change from parental custody to a parenting plan in FL. A parent not granted custody is entitled to reasonable visitation unless it would seriously harm the childs physical, mental, moral, or emotional health. Eldridge v. Eldridge- a trial court may properly restrict noncustodial parent visitation rights in the presence of a non spouse if the restrictions are in the childs best interests. Standards for Modifying Custody: UCCJEA- Uniform Child Custody Jurisdiction Enforcement Act- the courts look to each other to determine who has jurisdiction. Baures v. Lewis- in a removal action, the custodial parent must establish a prima facie case with a good faith reason for the move and demonstrating that the move will be in the childs best interest. Chaddick v. Monopoli- determination of whether an evidentiary hearing must be conducted regarding the issue of another states appropriate exercise of jurisdiction is within the discretion of the trial judge. PKPA- Parental Kidnapping Prevention Act- in the 70s was a big way for parents to get custody of their kids. Court must look at the reasons youre there, establish a residency, and why they should take the case over, best interest of the children, must give a way to find out whats going on. Troxel v. Granville- parents have the fundamental right to the care, custody, and control of their child. Rose v. Rose- final outcome- the father was determined to be the primary custodian. The father is more stable and offers the child the best chance to make progress toward normalcy. Father is more consistent with parenting. Mother attempted suicide and was institutionalized. o ECONOMICS OF DISSOLUTION Property Distribution: Most states provide a list of factors when deciding on how to allocate. Some states require the courts reasoning to how it plays out and how they're going to divide the property. o Fault- Fault was originally intended to punish one party for the divorce. If wife was at fault she got nothing. o Need- to keep the other spouse off welfare and to foster dependence. Today marriage is an "economic partnership" o Status- generally only applies to high income families 14

o Rehabilitation- similar to the concept of need, but a short solution. Designed

to foster independence. Relies on length of marriage and may substitute for status.-- FL will look at a marriage that lasted for 10-12 years and say it's a long term marriage and may grant lifetime alimony. o Contribution- 1st factor in FL. Marriage is an economic partnership. Each person contributes either money, services, or enables the other person to get ahead. The recipient spouse receives the earned benefit of that contribution during the marriage. 2 types of property distribution states: o Separate Property each partner owns and controls all property brought to the marriage. The spouse also owns and controls all property acquired during the marriage if it was acquired through personal earnings, gifts that spouse, inheritance or other personal or income, or through any means other than the use of marital resources. Traditional approach- only divided property that constituted jointlyowned or marital property. Often resulted in the wife receiving a small or negligible allocation of property. o Marital Property- converges with the notions of community property and permits the court to treat most property as if it were commonly acquired. Equitable distribution- common law distribution now codified. Permits the court to allocate all property acquired during the marriage based on notions of fairness. Thus, the courts will look not only to each spouses financial contribution, but to all other activities in the marriage. Mostly just the property acquired during the marriage by either spouse regardless of title. May include the exceptions: property brought into marriage, gifts, and willed property. One persons brings something into the marriage the other may gain an interest into property by showing a contribution to it during the marriage. Was known in FL as special equity. On a practical level there's not much of a difference btwn community and equitable. Canakaris v. Canakaris- lump sum alimony was equated to equitable distribution and its NOT the same. Equitable distribution is an entitlement and alimony is need based. The court was wrong according to Freeman. Community Property- any property that is acquired by either spouse after the marriage is divided equally between them in the event of a divorce. Resembles equitable distribution, in that the court considers fairness and contribution to the marriage and divides the property equitably rather than equally. The court will not distribute separate property. A statutory system. Today exists in only 8 states. AZ, CA, ID, LA, NV, NM, TX, WA. Some states may be affected by fault. Most famous state with Community Property is CA! Postema v. Postema- in a divorce, one spouses advanced degree should be taken into account in the property distribution. Basic goal is to promote fairness. An advanced degree might be called a concerted family effort. Both spouses sacrifice with the expectation that the degree will benefit both members. The better view is to award the non receiving spouse the value of her sacrifice 15

toward the degree, less what she has already obtained. All property acquired during the marriage regardless of marriage. No right to separate property. The money, effort, and lost opportunities lead to enhanced earning capacity for the marriage and should be considered property. Debts for the degree/license will be considered. What is degree worth over lifespan and then given present value. o A hybrid followed by many states- Restitution of the contribution that the other spouse gave to acquiring the degree. o FL view- license or degree is NOT property but the first factor to consider for distribution (contribution). o NY view New License- has no present value, no actual monetary value. Wife would get her share of nothing. Old License- the marital property encompasses the license which has present value. The license has merged into the marriage. Elkus v. Elkus (Opera case)- to the extent that a supporting spouses efforts led to an increase in value of spouses career, he or she is entitled to a share in equitable distribution. Anything that contributes to the enhanced earning capacity creates an entitlement to it. Dividing Property Equitably: Ferguson v. Ferguson- a spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding. Common law states are equitable distribution! Siegal v. Siegal- the contribution of each party to the acquisition or dissipation of the marital property is to be considered in determining the equitable distribution. o The court in this case found that financial dishonesty or unfairness btwn the spouses can be material. And admitted dissipation of marital funds has been found to be fraudulent. Alimony: Alimony is based on need and ability; its optional and has a termination date. 3 kinds of alimony: o Lifetime Periodic Lump sum o Periodic o Rehabilitative/Maintenance Status of marriage comes into the awarding of alimony. Alimony must be reported in income and is tax deductable for the payor. UMDA section 308- Maintenance order- not an entitlement. All but child support can be contracted around through a reasonable prenup. In re Marriage of Wilson- The court may order a party to pay any amount for the support of the other party for any period of time as the court may deem just and reasonable considering all the statutorily stipulated circumstances of the respective parties.


Clapp v. Clapp- The family court has broad discretion in determining the amount of maintenance and will be reversed only if there is no reasonable basis to support the award. o Maintenance award- order entered by the court requiring one spouse to make payments to the other for subsistence. o Reasonable need is not to be judged in relation to subsistence but by in light of the standard of living established by the marriage. What Constitutes Property: Vested pensions- all pensions are covered by ERISA (extremely strict federal statute)- if you leave your job you own that money. Are property for distribution purposes. Nonvested pensions- contingent upon continuing employment. Always own the employee contributions but not the employer contributions until the time period marker has been met. Only a contract right, not an entitlement to the nontitled spouse. A future interest/expectancy. (Laing v. Laing- a spouses nonvested pension rights are properly characterized as marital property.) o Present value- consists of number of years of pension during the marriage, number of years of marriage divided by the number of years the pension holder has held the pension. o Reserved jurisdiction approach- put off the distribution until and if the pension vests. Preferred if title holder collects and then both get their share. QDROQualified Domestic Relations Order-- pension evaluators take over the evaluation of the pension. ERISA- any pension can only be distributed as the pension plan says and NOT how the court says. Mansell v. Mansell- military retirement if have verified service connected disability can elect to have some % of their retirement pay as a disability pay. Former spouses protection act- allows the military pay to be distributed in certain ways. Excludes a waiver. Must be married for a certain amount of time while spouse was in the service for the former spouse to get a percentage of the former military member's retirement. Child Support: Schmidt v. Schmidt- child support obligation shall be established in accordance with the obligors net income and number of children affected unless specific findings permit deviation from these guidelines. o Cant ask for an accounting of where money is going unless circumstance arise o Can impute income if lavish lifestyle is seen In re Marriage of Bush- Trial court may vary from guidelines when dictated by the income of both parents and taking into account the lifestyle the child would have enjoyed absent the dissolution. o The rule in the present case should also allow for modification of child support awards in the event that, due to changed circumstances the financial resources available to the child increase. o Isnt related to the standard of living in the marriage. The child is an innocent victim. o Both parent are high income so a windfall would be created and the court will not allow 17

Murray v. Murray- unexercised stock options have been held to constitute part of gross income for purpose of calculating support obligations. Overtime- if standard can be shown over a time period (6mos- 1yr) will be counted. Solomon v. Findley- a provision for post majority educational support does not merge into the dissolution decree but remains independent and enforceable as a contract claim. o Should be enforced in a separate contract action- Majority view. o If the majority age is 21 then they do factor in college. State tuition and cut it in half. Child must apply for grant, scholarship, loans hen parent split difference Graham v. Graham-an increase in a noncustodial parents ability to pay can by itself constitute a material change in circumstances sufficient to justify an increase in support. o Applies to both alimony and child support orders. Ainsworth v. Ainsworth- expenses for 2nd family may enter into the determination of child support for the preexisting family even when the 2nd family consists of both a spouse and a stepchild. o Decided jurisdiction by jurisdiction o Chronological order of court orders- whoever filed first gets claim first no matter childs age or relation(1st marriage/ 2nd marriage) Child Support Enforcement v. Brenckle- once registered an Alaska child support order is enforceable in the same manner as a Massachusetts Court. o Uniform Interstate Family Support Act- statute applicable once one court enters a support order no other court may modify for so long as the party for whose benefit the order was entered continues to reside in the jurisdiction of that court. Enacted to create a uniform basis for jurisdiction so that only one order is in effect. Goes along with UCCJEA Hicks v. Feiock- where in connection with contempt proceedings for failure to pay child support a determinate sentence of imprisonment is imposed it will be deemed to be civil in nature if the sentence imposed contains a purge clause. State Dept. of Revenue v. Beans- Refers to statute where if you stopped paying child support they will suspend your drivers license if able to pay and are not you can lose all forms of licensure. o Passport, occupational license, nationwide warrant Farrey v. Sandfoot- Bankruptcy case, you cant discharge child support or alimony thru bankruptcy NON-TRADITIONAL FAMILIES Moore v. City of East Cleveland- unconstitutional for an ordinance to force citizens to live in certain narrowly defined family patterns. A large part of the population lives in extended family units.