1

Family Law Outline I. Introduction to Family Law A. Family law is based from English common law 1. One person theory a) Historically, men and women become one person for purposes of property. b) The modern view is that women have the right to contract with their husbands and others. (1) There’s also a constitutional issue of discrimination based on gender (quasisuspect class). 2. However, some aspects generate from the civil law. a) That’s why some jurisdictions divide the property using civil law concepts (i.e., community property). B. Basic Constitutional Issues and Doctrines 1. Balancing Tests a) Strict Scrutiny (Used when a fundamental right or a suspect classification is involved) (1) The limit must be necessarily related to a compelling state interest. (a) The law must be narrowly tailored to achieve the least restriction possible. b) Intermediate Scrutiny (Used on quasi-suspect classifications) (1) Law must be substantially related to an important state’s interest. c) Rational Basis (Used on all other types of social or economic classifications) (1) Law must be rationally related to a legitimate state interest. 2. First Amendment analysis a) Free exercise of religion (1) Government can’t limit or interfere with the belief of an individual. (a) However, it can regulate or affect religious practice if there is a compelling interest that outweighs the individual’s interest (strict scrutiny test). b) Establishment clause (1) It becomes an issue when the government tries to regulate an activity on sole basis of religion. (a) For example, when the government favors one religion over another. c) Right of Privacy (Substantive Due-Process) (1) Privacy has been found to be a fundamental right falling within the penumbras of the Constitution under the 1 st ,5th ,6th ,9th & 14th amendments. An implied fundamental right is determined if found “implicit in the concept of ordered liberty, deeply rooted in this nation’s history and tradition”. (a) Marriage, contraception, procreation, abortion, family relations, child rearing, and child education. (2) Marriage has been included to be a fundamental right, which requires the strict scrutiny analysis. d) Equal Protection (1) General rule is that similarly situated people must be treated similarly. (2) What triggers an equal protection analysis: (a) Government regulation based on classification (i) A suspect class (race, national origin, alienage) will raise strict scrutiny analysis. (ii) An intermediate class (gender, illegitimacy) will raise intermediate scrutiny analysis. (iii) Social & Economic class will raise a rational basis analysis. (b) Infringement on a fundamental right (i) If the government seeks to regulate an express or implied right found in the Constitution, then strict scrutiny analysis applies. e) Procedural Due Process (1) Guarantees the protection of individuals from government’s arbitrary acts. (2) First, you must determine whether there has been a government interference of life, liberty or property. (3) Then, whether the individual was given notice and an opportunity to be heard.

II. GETTING & BEING MARRIED A. Regulating Marriage 1. The right to marry has been found to be a fundamental right. Government can reasonably regulate in this area, as long as it’s narrowly tailored to meet the state’s ends. a) The regulation must pass strict scrutiny analysis for it to be upheld. 2. Personal relationship between a man and a woman arising out of a civil contract, to which the consent of the parties is essential. a) Maynard v Hill (1) Marriage is more of a mere contract, it is an institution that the maintenance of which the public is deeply interested. B. Alternatives to Marriage 1. Cohabitation a) Contract between unmarried couples to live together and hold property jointly. (1) Common Law Marriages (i) Most states have invalidated common law marriages since the 1900’s. (ii) Florida does not recognize common law marriages, but they can be enforced in Florida because of the Full, Faith and Credit doctrine. 2. Possible causes of action: a) Breach of express or implied contract (legal relief) b) Quantum merit (legal relief)

(i) The problem arises when the gift is not a ring. (b) In the event of a breakup of a homosexual relationship. They are unconditional and upon acceptance are irrevocable. then the domestic relations law would not cover this type of case. 4.011) (1) Allows for partition to occur independent of marriage. Statute § 771.2 (1) Recovery for the reasonable value of household services rendered. then the gift may not . (i) However. alimony or child support matters. (2) Is an engagement ring an unconditional gift? (a) Rings are usually gifts given in contemplation of marriage. (i) However. a plaintiff can’t collect on an expectation of social position. (3) Measurement of damages (a) Can be proven by showing lost of future job earnings due to emotional damages. the federal courts will not acquire subject matter jurisdiction over divorce. (2) If the jurisdiction doesn’t recognize common law marriages. Domestic Relations Exception to Federal Jurisdiction a) Even if there’s diversity of citizenship. loss of reputation. Statute § 771) (a) Abolishes any tort or contract causes of action for a breach of a promise to marry. Enforcement of Contract a) Courts will enforce express or implied contracts between non-married couples. not domestic relations law. c) Constructive Trust (legal relief) (1) Determination by the court that one party is holding property that rightfully belongs to another. (a) Florida follows the common law rule laid in Gill v Shively. However. b) Arguments against enforcing the contract: (1) Difficult to enforce a contract that never existed. hence. Getting Married 1. (1) If the relationship is exclusively based on sex. 3. Recovery of Gifts (1) Inter vivos gifts (a) Gifts that are given while alive. (i) Client’s only chance is to go to a jurisdiction who recognizes this causes of actions. c) Arguments favoring enforcing the contract: (1) This type of case is contract law. because the court must determine whether it was given in contemplation of marriage or was it just an unconditional gift. which states that a ring given in contemplation of marriage must be returned if the engagement is broken and the marriage never takes place. Enforcement of promise to marry (1) Possible causes of actions include: (a) Breach of an implied contract (Implied contract or 3 rd party beneficiary to an express contract) (b) Torts claims (Mental anguish. only for promises to marriage. doesn’t mention anything about rings. B. if the underlying matter is one of torts or contracts. Statute § 64. hence not a common law marriage. humiliation) (2) Florida has abolished these causes of action statutorily ( Fla. Courtship A. (1) But. C. (a) The parties did not hold themselves as husband and wife. must show that the party is a tenant in common. then the contract is invalid and unenforceable. as long as contract wasn’t based on sexual activity. there may be a cause of action for the return of it. d) Unjust enrichment (equitable relief) e) Detrimental reliance (equitable relief) f) Action for partition of property ( Fl. then the court will listen to the case. Fla.

Only four states allow common law marriages (Alabama. d) Putative Marriage Doctrine (1) Provides equitable relief for disadvantaged parties to safeguard the economic interests of a party to a void or voidable marriage who cohabits in good faith belief that the marriage is valid. Common Law Marriages a) Most jurisdictions do not recognize this type of marriage. then it will be upheld in any other state (Full Faith and Credit Clause). no specific form of ceremony is required.107 states what are the requirements for marriage.Marriage is invalid from its inception a) Primary reasons for annulment (1) Religious beliefs (2) Social circumstances (i. b) Elements necessary to enter into a common law marriage: (1) Capacity (age. (a) Only lasts until the putative spouse has knowledge that the marriage is invalid. the marriage can be ratified by the conduct of the parties. (a) Generally. unless it violates strong public policy. but the validity of the marriage will depend on whether the statute is directory or mandatory. because it was never a valid marriage. 2. (a) Directive statute will suggest the license but not require one. (3) Anti-heart balm statutes (a) Prohibit causes of action related to cases involving the matters of the heart. (3) Public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Legal Eligibility a) Minimum Age .) (2) Present and mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships. (a) Bigamy and legal capacity are the only grounds for a marriage to be found void. children.3 returnable because the state doesn’t recognize homosexual marriage. Statute § 741. All other cases are denominated as voidable. (1) However. (ii) Marriage can be attacked by 3 rd parties. etc. 5. b) Ceremony (1) Statutes outline who can perform a marriage ceremony. (2) If the marriage is valid where made. (2) Fla. (license and solemnization). unless it violates strong public policy. the gift wasn’t given in contemplation of marriage. it will be upheld in any other state. (iv) It can’t be attacked even after the death of one of the parties. unmarried. Texas. because the legal requirements of it are not met. Utah. therefore it can’t be annulled.. Nebraska). Formalities of marriages a) Licenses (1) Most states have licensing requirements. (b) Mandatory statute will require the license. must look at caselaw. 4. including Florida. the general rule is that if the marriage was valid in the state where it was entered. Therefore. Annulment . c) Florida Law (1) Florida has no statutory annulment. 3.e. (i) Strong offense to public policy. competency. (ii) Marriage is valid unless is attacked. (2) Voidable Marriages (a) Requires a formal action or declaration to invalidate the marriage. (2) Some jurisdictions don’t follow this doctrine and consider the relationship as a divorce and distribute the assets as such. social status) b) Void v Voidable Marriages (1) Void Marriages (Void ab initio-from its inception) (a) Needs no formal judicial action or declaration to establish its validity. (i) However. (iii) Marriage can’t be ratified ever.

can’t attack the validity of the divorce thereafter to free himself up from the second marriage or to inherit from the first marriage. majority of jurisdictions treat half bloods and full bloods equally. (??????) (iii) The child is already a natural parent. (a) Lack of consummation of the marriage is grounds for annulment. there’s no constitutional claim because the state is not prohibiting marriage. rather delaying it. (i) Law must be necessarily related to a compelling state interest. (c) Person marries without disclosing being HIV positive. (b) If the law prohibits marriage of a person infected with HIV. but the illness or disease must be incurable.4 (1) State legislatures have set an age at which a person is deemed fully competent to get married. the court can grant permission to a child upon an independent hearing. a person that gets a divorce and then remarries. b) Kingship (1) Most jurisdictions have adopted laws that restrict or prohibits marriages between closely related family members. 7. (i) However. (a) A court can annul a marriage if it determines that the individual was incompetent at the time of the marriage. (a) Some jurisdictions requires the spouse to dissolve the first marriage through divorce before remarrying. if the wife marries knowing the impotency problem. c) Physical Incapacity (1) Testing requirements before issuance of license (HIV) (a) Possible constitutional claims of infringement on the right to privacy and the fundamental right to marry. b) Enoch Arden laws (1) Provides for safeguards against bigamy prosecution for spouse who in good faith remarries on belief that first spouse was dead. (2) Court can also annul a marriage on grounds of temporary incapacitation (marriage while drunk). 6. (public policy argument) (b) Also. (2) Fla. and then goes has a child due to artificial insemination.2050 (a) Requires for any person under 18 years of age to get parental consent for marriage. Also. (2) Impotency Issues (a) A wife can seek an annulment of the marriage based on impotency. (a) If the person was intoxicated at the time of the ceremony. if the impotency is medically declared incurable. they have set an age so a minor can get married with parental consent. the court may not grant the annulment because she ratified the marriage by having the child. the state where the proceedings . then: (i) Possible constitutional claims of due process (right to marry) and equal protection (fundamental right). (Physiological and Psychological). (a) Usually. then the presumption is that any subsequent marriage is valid. and the essential element of marriage. Choice Law a) On a dispute of which law should apply on a certain dispute. (i) However. in addition to a tort claim. (b) A child doesn’t need to get parental consent if: (i) The child has been previously married (ii) The child is pregnant. Existing Marriages & Valid Agreements a) When a marriage has been dissolved in divorce proceedings. (i) The individual did not understand the nature of the relationship he was entering into. (1) Therefore. d) Mental Incapacity (1) Capacity relates to the understanding of the nature of entering into the marriage (entering into a contract). (a) Narrowly tailored or least intrusive. (i) Partner can seek annulment of the marriage based on fraud. Statute § 741. (a) Legislatures have included bans on marriages between adopted siblings. but afterwards there’s no ratification by holding out to be married.

b) A woman is not required to take her husband’s name upon marriage.08 (i) Married woman is empowered to control and manage their separate property. (1) Under this system. Statute § 708. disposing or encumbering the property. b) Most jurisdictions follow an Equitable Distribution system when dividing property between spouses. Support a) Most jurisdictions allow woman to seek support upon separation. (ii) “Necessaries” includes food. but may do so if she chooses to do so. (a) No constitutional issue because name change is not a fundamental right. . each spouse may have their separate property. (1) Fla. Fla.05 (a) Unless there was a contract and spouse undertakes the responsibility. d) Changing the name of a child (1) Traditionally. clothing. (1) Florida allows a woman to seek support without seeking divorce. (2) If parent seeks to change child’s name after birth (a) Birth certificate must be changed.5 are held will look at their choice of law statutes to find out which law will apply for the specific issue in question. controlling. even if one stays home and the other one works. laws have allowed name changes to a completely different name than that of any of the parents. (a) However.08 (a) Married woman is empowered to control and manage their separate property. 3. c) Proceedings where a person can get name change: (1) Dissolution of marriage (a) Husband can’t compel her wife to retake her maiden name. (a) Both spouses are deemed to contribute to the marriage. D. Name Change a) The common law rule is that a person can choose whatever name it likes. Statute § 68. and a child born out of wedlock takes the mother’s name. (1) However. heating bills. (iv) Insecurity due to change. Sharing Property a) Most jurisdictions provide that one spouse can’t dispose unilaterally of jointly owned property. etc. (a) Common law “necessaries” doctrine: (i) Provides that husband is responsible for the support of his wife. (b) Best interest of the child analysis (i) Child’s preference in light of age and experience. (vi) Difficulties the child may encounter by the change of name. so long as you don’t use it fraudulently. Economic Transactions a) There are no distinctions between a married man and a married woman in the holding. (v) Motivation of the parent seeking the change. Husband & Wife 1. (a) Fla. (i) Violation of the woman’s privacy rights. electricity. (a) Basic needs for one’s existence b) Ante-nuptial Debts (1) General rule is that one party is not responsible for the ante-nuptial debts of the other. Statute § 708. (a) So long as it’s not fraudulently. Statute § 708. (2) Adoption proceedings (3) Name change proceedings (a) Fla. the general rule is that the division of property will be done according to equity and fairness. (3) If there’s a statute that prohibits name change of a child. 4. (i) Rational basis analysis (b) Child may have a freedom of speech argument 2. (ii) Effect of name change with parent’s relationship. (iii) Length of time child has used name.07 Name Change (4) Holding yourself out with another name. But such contract can’t be based on sexual activity. Not deeply rooted in this nation’s history and tradition. a child born in wedlock takes the father’s name.

(2) Florida Rule (a) The privilege applies only when a crime is committed against a third party. (a) However.). (a) However. the counter-argument is that the individual has the right to access the court. as long as they live in the same dwelling. (2) Florida Proceedings (a) Circuit court (domestic relations division) can grant an ex-parte temporary restraining order that lasts up to 15 days. (b) A spouse can’t be neither compelled nor foreclosed from testifying about confidential communications between spouses. removal of the defendant from the property. (a) There may be a constitutional claim for a procedural due process violation of the husband’s rights to notice and hearing. (ii) What kind of process is reasonable under the circumstances. Statute § 741. (i) However. friend of friends. (equitable proceeding) (i) Anybody can get a temporary restraining order (spouses. the privilege doesn’t apply when the crime is committed against the spouse. Historical Perspective a) Does a person that wants to get a divorce entitle to counsel in a divorce proceeding? (1) There may be a constitutional claim of due process (14 th amendment) on an implied fundamental right to access the courts. child support.235 (1) A spouse has the ability to sue for an intentional tort of battery regardless of the marital relationships between the persons. (i) The court must use a balancing test to determine whether the state’s interests outweighs the constitutional interest. States that follow this system includes: (a) Washington (b) Wisconsin (c) California (d) Louisiana (e) Idaho (f) Nevada (g) Texas (h) Arizona (i) New Mexico 5. (1) Federal Rule (a) A spouse holds the privilege to refuse to testify adversely against his or her spouse. d) Domestic Violence (1) Court may grant an ex-parte temporary restraining order if shown that there’s an immediate threat of danger. (ii) Relief can include alimony. The spouse has possessory interest on the property. then charges can be presses because that spouse has no possessory interest in the property. if the separated spouse rents an apartment and the other spouse breaks in. c) Possessory Interest (1) A spouse can’t be charged with burglary for entering a jointly owned property when the other spouse is living there after separation but before divorce. (1) In many situations. girlfriends. property will be divided in half after a couple divorces. III. Ending The Marriage A. property can’t be sold. (a) Private interest (property or liberty) (b) Government’s interest (safety) (c) Evaluation of the process due (i) Depends on the gravity of the loss.6 c) There are a minority of states that follow a Community Property system. . Matrimonial Breakdown (Divorce) 1. (a)However. boyfriends. (iii) If divorce proceedings are instituted afterwards. Torts & Crimes a) General rule is that spousal communications are deemed to be privileged. they will take over the matters. but it’s up to the discretion of the court whether you should get counsel free of charge. etc. b) Fla.

b) Grounds for fault divorces (may also be grounds for annulment) (1) Cruel and inhumane treatment (2) Adultery (3) Alcoholism and Drug abuse (4) Insanity (5) Desertion or constructive desertion (6) Criminal conviction (7) Impotency (8) Non-support (9) Separation by agreement with intent to separate c) Defenses for fault grounds divorces (1) Recrimination (a) Fault of both parties. (i) If respondent spouse did not get adequate notice. (1) If one of the parties depleted assets during the separation. leading to the presumption of death. (3) Connivance (a) Indirect consent or permission of one person to the commission of an unlawful or criminal act. Right to Counsel (5 amendment). . (2) Recently courts have granted divorces adjudging both parties with fault. (4) Collusion (a) Means for the court to deny divorce to persons who fabricate evidence because they want a divorce and have no grounds to be granted one. (3) Dead marriage. 2. However.16. (ii) If the respondent spouse received adequate notice. th C. Florida Statute § 61. (3) Six months residency. c) What happens when a person served with divorce papers does not want to get a divorce? (1) The court can order mediation or counseling. These type of issues are not as significant as they used to be because of the number of nofault jurisdictions. but it is not required to do so. custody. (2) The marriage is irretrievably broken. (Remember: The test is whether the right is one deeply rooted in our nation’s history) 2. a child has a right to counsel in juvenile delinquency cases under the 14th amendment. (2) In jurisdictions that requires separation for a specific period of time. Jurisdictional Issues 1. (b) Procedural due-process (i) Opportunity to be heard (ii) The residency requirement only delays the opportunity to be heard. provides that if one of the parties has the ability to pay for counsel. (i) Could occur expressly by telling the spouse that is OK. b) In Florida. irreconcilable differences and irretrievably broken. then the court can order that party to pay for spouse’s counsel. and child support upon divorce. Fault based divorces a) Fault may impact alimony. then the ex-parte divorce is enforceable. that party may receive a smaller share when the assets are divided. However. which includes. (2) Condonation (a) One parties forgiveness of the other one’s marital misconduct. then the divorce may be attacked. No-fault based divorces a) This type of jurisdictions will grant a divorce. (4) Long-standing absence. Types of divorces 1.7 (2) (3) (4) B. Differs from the criminal case argument. (ii) Equal Protection Argument (a) Suspect Class (i) Not a suspect classification (b) Fundamental Right (i) Divorce is not a fundamental right. as long as certain requirements are met. Florida requires a six months residency before filling for a divorce. (ii) No fundamental right to a divorce. (1) Problem: Procedural due-process argument (a) Notice and opportunity to be heard. the requirements are: (1) Irreconcilable differences between spouses. (1) Constitutional Issues: (a) Residency requirements for divorces: (i) Due-Process Argument (a) Substantive due-process (i) Fundamental right to a divorce. Ex-parte divorces a) When a state grants a divorce only upon the appearance of one of the spouses. (2) What if the respondent spouse appears in the forum state to respond to the proceedings. Florida practitioners must be aware of foreign country divorces due to the area’s population. there must be an intent by one of the parties to a divorce and must clearly communicate it to the other spouse. a) Residency Requirements. Some of the requirements that this type of jurisdictions require are: (1) Incompatibility (2) Voluntary separation for a specific period of time. it doesn’t infringe upon the right. or implied by continuing cohabiting in the marital home. division of assets.

Therefore. (b) However. then a default judgment can be enter against him. Foreign Countries Proceedings a) What if couple goes to a foreign country and obtains a divorce without obtaining residency? (1) Under comity principles. a couple where one of the spouses has a lot of wealth may live on a modest income. property. then he has submitted himself to the jurisdiction of that state. b) What if the client doesn’t show up at all? (1) The court may grant an ex-parte divorce. when the attorneys discuss the settlement agreement. client may make special appearance to contest court’s jurisdiction. along with contribution to attorney’s fees and other costs of maintaining or defending the action. (2) Rehabilitative (a) Funds by the spouse to the other to provide the opportunity for the other spouse to become self-supporting. you would move to dismiss the action). then the other spouse has the burden of proving that there has been a substantial change in circumstances. (4) Methods of payment (a) Lump-sum (b) Periodic payments b) Factors that determine award of alimony: (1) Standard of living (2) Duration of the marriage (3) Age and physical & emotional condition of each party (4) Financial resources of each party (5) Time necessary for either party to acquire sufficient education or training to enable such party to find employment (6) Contribution of each party to the marriage (7) All sources of income available to either party c) Test to determine the award of alimony (1) There are two requirements that the court must find in determining the award of alimony: The spouse’s ability to pay and the needs of the receiving spouse. or obtain other self-supporting means. (i) If such court decides on these issues. (a) Problem is that if the client looses. (ii) It is appropriate to include it in the divorce decree. and then leaves the town. (i) It is unlikely that the receiving spouse would get an increase of the alimony award. (3) Permanent (a) Indefinite period of support until receiving spouse dies. then wife seeks alimony in Florida. (2) Same result if husband gets foreign country divorce. c) If the client instead comes to Florida to seek the divorce. (a) For this requirement there must be an intent to maintain residency. (c) If the year after the divorce. etc. b) What if the spouse gets an ex-parte divorce. (a) Florida will only enforce the divorce matter of the divorce decree. Statute § 61. there may be residency or domicile requirements issues. (i) If the client looses jurisdictional argument. and the ex-spouse comes to Florida to enforce the divorce decree. and husband claims foreign divorce is no good.8 Spouse’s appearance may have an effect of res judicata to argue jurisdictional issues later. (b) If wife. (a) However. 3. (i) If the divorce decree is silent. The court can now reach decisions regarding alimony. child support. remarries. but then moves to attack it in another jurisdiction because he doesn’t agree with the court’s findings? (1) Spouse is collaterally estopped from attacking a divorce decree that he sought in the first place. e) Would adultery has any effect on alimony decision? (a) D. he must meet the residency requirement. (In federal court. the divorce is enforceable. (c) If the client goes to the forum state to defend on the merits. after being awarded permanent alimony. not just transient establishment to get the divorce and then leave. moves in with some member of the opposite sex. Alimony (Fla. child support. etc. (a) If the award of alimony is given in a lump-sum. Economic Issues 1. the court can’t decide issues such as alimony. then client may move to collaterally attack the decree. . (2) Alimony is also determined based on the standard of living of the couple while married.08) a) Types of alimony: (1) Temporary or alimony pendente lite (a) Designed to provide support for a spouse during the divorce action. (i) However. he may appeal to that state’s appellate court. d) Modification of Alimony (1) When determining a modification of alimony. this will not have any effect on the decision of the receiving spouse of re-marrying or cohabiting with another person. the court must find a “substantial change in circumstances” to grant the modification of alimony. the husband’s income triples.

the court will most likely not modify the child support. Involuntary termination of employment. (2) When the monthly income is lower than any amount set in the guidelines. Statute § 61. Child Support a) Under the common law rule. (1) The presumption is that property acquired during the marriage is considered marital asset. (d) Type of college (private v public) (e) Child’s desire to attend and aptitude. (2) Financial means of each parent. (1) Equal Protection issue (a) It would be discriminatory to treat a man in a different way than the wife. move for petition to modify child support award. the courts will take into consideration the following factors: (a) Other sources of income. unless the child remains dependent of the family (i. (3) Remember: in custody and support cases.e. (2) Non-marital assets include: (a) Inheritance before and prior marriage (b) Property held prior to marriage (c) Retirement pensions that vested prior to marriage b) Determining co-mingled property brought into the marriage (1) A. Florida does not follow this rule because although it would be morally wrong. even if the husband is not the biological father. (i) If voluntary termination. then it is more likely that the court will spare the stepparent from paying. (ii) Child or biological father relied on stepparent’s conduct for the nurture and support of the child. Child support for illegitimate children a) A child born during a marriage is presumed to be the child of the marriage. then is the maximum plus a percentage.9 Even if the jurisdiction follows “no-fault” based divorce proceedings. the husband was primarily liable for the support of the child. adultery by either of the spouses may have an effect on the award of alimony. Modification of Child Support a) Procedurally. End of child support payments a) The general rule is that child support ends at the child’s emancipation (majority of age). then the court will determine an amount in a case-by-case basis.. (c) Current financial status. 6. 8. (1) Some factors to consider in determining payment for post-secondary education includes: (a) If the parties had already agreed on negotiations. 5. (2) If the biological father is able to support the child. then the biological father is responsible for the support of the child. (a) This effect will be determined on a case-by-case basis. b) Key goal of child support: (1) Ensure the economic impact on the children c) Key issues in determining support for the child: (1) Lifestyle to which the child is accustomed. d) Child support is independent from visitation. disabled. 3. (1) When the monthly income is higher than the maximum amount in the guidelines.Total Livable Expenses = Total Capital Resources 4. (b) Customary for family members to go to college. then the husband is entitled to alimony on the same basis as the wife would if he was the one with the wealth. b) Support by stepparents (1) A stepparent may be obligated to support a child if the he has been responsible for the child while the marriage was intact. where the wife is the one with the ability to pay and he has the need for financial help. such would be an equal protection violation. there is no legal obligation. (iii) Child would suffer financial harm if the stepparent doesn’t provide support. 2. the court will always look to the best interest of the child as the most important factor.30) a) Child support guidelines have been established to aid the court in determining the child support award. the failure of complying with one will not determine the other. (1) Therefore. (b) Ability to obtain new employment (c) Voluntary vs. the Supreme Court has ruled that the responsibility to pay child support cannot be determined by gender. (1) However. Key issues in determining division of property a) Distinguishing between marital assets and non-marital assets. in some jurisdictions. illness. There are two types of divisions of property a) Equitable distributions b) Community property 2. (1) Once paternity is proven. parent may be obligated to pay for the child’s education. How to evaluate the ability of the parent to pay child support a) Parents Net Income .) b) Also. (1) However. (1) The burden in Florida and most jurisdictions is “ a substantial change in circumstances ”. f) If the wife is the one with the wealth and the marriage breaks up. What about if the supporting parent looses his job? a) He can seek a permanent or temporary decrease of child support. . 7. Dividing Property (Often regulated by statutes) 1. etc. (a) Factors in determining support by the stepparent: (i) Stepparent held himself out as a parent. Evaluation of the payment of child support (Fl.

(b) Fairly advised both parties regarding joint representation. However. (2) Child support and custody may be included in agreements. (i) Incorporated agreements have a res judicata impact. (a) Standard of “substantial change in circumstances” c) What about representation of both parties by same counsel? (1) Agreement may still be valid if counsel: (a) Fairly advised both parties regarding salient issues. some jurisdictions take into consideration the person’s potential earnings and award the supporting spouse with rehabilitative or “reimbursement alimony? 4. (2) On the other hand. full disclosure is not required. b) What about child support? (1) Court may follow the agreement in determining child support. child support. (2) Determination of whether agreement was going to be incorporated or merged (a) Express clause in the agreement. B. 3. b) Military benefits are also considered marital assets. when one party “puts” the other spouse through school? a) The general rule is that degrees are not considered a marital asset subject to distribution. (1) Most jurisdictions follow that the cut-off date is when the court awards final judgment of the dissolution. However. (a) Factors in determining whether to invalidate a prenuptial agreement: (i) Showing of failure to disclose fully. but are subject to modification because of the “best interest of the child” standard. b) However. What about pension plans? a) The general rule is that vested and non-vested pensions are marital property subject to distribution. most states follow that in probate proceedings. 5. 2. then the agreement becomes part of the decree and it has no independent legal significance. (3) Property is not taxable and considered a gratuitous transfer because it does not generate gain or loss. 3. (1) Vested means when the employee is entitled to the pension benefits regarding of the relationship between employer and employee. (1) Merger means substitution of rights and duties of the decree for the ones in the agreement. which means that agreement provisions can’t be modified after the final order has been entered. then it does not become part of the decree and it remains an independent contract. (ii) Fraud or duress in signing the agreement. (a) However. Agreements 1. d) What about issues of alimony. (1) Florida’s standard: “whether the actions are ones that shock the conscience”. alimony can be deducted by the payor and it’s taxable income for the payee. What about property obtained after the divorce? a) Most states set a “cut-off” date when determining what property is considered for distribution. the court has the power to modify child support regardless of whether agreement was incorporated or merged. child support can’t be deducted by the payor and is not considered as taxable income for the payee. Separation agreements a) The key issue with separation agreements is whether it merges with the divorce decree or whether it is incorporated into the decree. there’s a rebuttable presumption of non-disclosure in actions of this nature. (a) Party can only try to enforce contract under contract law and not through family law. (c) Agreement must be fair. or (b) The date of the filling of the dissolution. c) What about if the property becomes co-mingled with marital assets? (1) Then separate property may become marital assets subject to distribution. (1) The burden of proof is with the party seeking to invalidate the agreement. (1) However. 6. Ante & Post nuptial agreements a) The general rule is that there’s a presumption of full disclosure of assets prior to the signing any prenuptial or post-nuptial agreements to be enforceable. making waiver of rights unlikely. (iii) Look for disproportionate assets.10 c) Separation agreements What about college degrees and professional licenses. . (a) If the agreement is merged into the decree. is entitled to claim the child as a dependent for tax purposes. Tax & Bankruptcy Issues a) Taxes (1) The custodial parent (that one that has the child more than half of the time). (b) If the agreement is incorporated to the decree. (1) Public policy argument to not burden marriage between elders that want to keep their property separate. (b) Intention of the parties. (2) Florida sets the cut-off date for either: (a) When the separation agreement was entered. Does fault have any effect in the distribution of property? a) The court may take fault into consideration if the spouse’s actions had any bearing in the depletion of the property prior to the divorce. and custody? (1) There is disagreement between the jurisdictions regarding the complete waiver of alimony in an agreement.

(ii) He could seek modification. (b) Procedural Due-process .11 (a) b) However. then the state must show a compelling interest. (2) Bankruptcy court has the discretion of staying its own proceedings pending any state ruling regarding the debtor. If the court determines that he didn’t pay. by giving Florida jurisdiction. (3) How can we be able to enforce the payment of arrearages? (a) You could register the child support order in Florida and seek to enforce it for lack of payment. (2) Issue of inheritance by the father. a) This raises some important issues.in the presence of the court. (a) It can also be enforced in Florida because he now lives in that state. he can collaterally attack the orders. Bankruptcy (1) Child support and alimony payments are not dischargeable in bankruptcy proceedings. 4. (a) However. Legitimacy (bastard) 1. (b) You could moved in Georgia to enforce the child support order and can seek payment of arrearages. then it will order him to pay. (5) Stigma of the mother. decree.outside the court. Parties lived there five years before seeking divorce. courts have treated illegitimate children as equal as natural children in probate and torts proceedings. (i) Inability to pay (ii) Determined by the involuntary reduction of wages. such as: (1) Issue of support by the father. in cases where the government is the other party to the action. b) What about if she moves to Florida and he stops paying support. (1) It can be enforced in Georgia because the divorce decree was entered in Georgia. (a) Preferable one for this type of cases. (ii) Civil contempt. but if he looses then he’s stuck with the decision. IV. Because otherwise we would have debtors in prison. Having Children A. (6) Issue of adoption. (4) How can we enforce the on-going lack of payment? (a) Uniform Interstate Family Support Act (UIFSA) (i) Could register the order under this statue and seek enforcement of them in Florida. but must prove “substantial change in circumstances”. she can go to Florida to enforce the orders. (2) Could seek relief in Georgia for not abiding by the Ga.000. (b) Indirect. b) Rights of illegitimate children (1) Generally. (i) You could try to enforce the divorce decree and order of arrearages.Violation of court order and penalty is a punishment (fine). (5) What about choice of law? (a) We look at the forum state’s statutes to determine which law will we use. (3) A party can only discharge its own marital debts. (2) We get an order in Florida to pay support and he doesn’t (a) We file for contempt of a court order. Court doesn’t allow to discharge debts where the other spouse has an interest. courts have treated illegitimate children different. c) What are the rights of an unwed father who is battling adoption proceedings by the mother’s husband versus his? (1) Constitutional issues: (a) Equal protection argument (i) Is there an infringement of a fundamental right (“deeply rooted in our nation’s history”)? (a) If there is. (i) Criminal contempt. He must pay child support. Must file a motion (supplemental proceedings) to enforce the court order. (4) Psychological effects on the child. you could attach his property and even garnish his wages. (3) Issue of governmental benefits (welfare). Enforcement Issues a) Problem: Divorce in the state of Georgia. and now she seeks enforcement? Agreement states that she needs to seek permission before moving out of the state. (a) However. if the party that keeps the home sells the same and doesn’t purchase another property within two years from the sale is subject to capital gains tax. (1) General Rule is that child support and visitation are distinct and can’t predicate child support on accounts of visitation. (b) The contempt must be willful. It can also file lawsuit in Florida for breach and file motion to garnish its wages. (a) He could defend to the proceedings claiming “substantial change in circumstances”. (ii) Now.00 in arrearages. (i) Now. Illegitimate children or non-marital children are children born out of unmarried parents. He stops paying and now owns 13. (a) Direct. He moves to Florida.Penalty that will continue for as long as the defendant doesn’t comply. Child born out of the marriage.

The parent must have a relationship with the child. (1) Statutes determine what are the rights of illegitimate children to recover from the intestate of the natural parent. if we apply the substantive due-process analysis (right to privacy). the father challenges paternity of the child? (1) The general presumption is that a child born out of the marriage is the legitimate children of the parties to the marriage.12 Whether the father has a fundamental interest of liberty or property? And if so. . (c) Substantive Due-process (i) Whether raising a child is a fundamental interest within the penumbras of the right to privacy? (a) Fundamental right must be “deeply rooted in our nation’s history and tradition”. then it will raise the level back to strict scrutiny and probably unconstitutional. Compelling state interest for safety and reduction of crime. (a) However. (a) Undue-burden test (i) B. (c) If the father had a relationship with the child. (i) The general rule is biological parents does not create per se a protected interest. (2) Since it’s found to be a fundamental right. (i) The law may not be narrowly tailored to achieve its interest and there are other less intrusive ways. and relationship with one’s child. then what type of process is due? (a) Liberty interest has been found to include the right to care. b) What if the bill restricts the sale of contraceptives to minors? (1) Then an equal protection analysis may fail because the level of scrutiny will fall to a rational basis analysis and probably upheld. (2) Father may seek a paternity adjudication to show that the child is not his and thus not responsible for it. a biological father (party outside the marriage) may not have the right to challenge the presumption of paternity in a marriage. Decisions about procreation 1. then her liberty interest is not a stake and not entitled to the paid test. (3) There’s a difference between medical contraceptives and other kind of contraceptives. the test to analyze the bill will be a strict scrutiny test. companionship. but can regulate and even prohibit it after the viability period. (a) However. strict scrutiny applies. (a) The state may have a compelling state interest because of the protection of women of medically prescriptive contraception. (b) Therefore. (a) The bill must be necessarily related to a compelling state interest. (1) Supreme Court decided that the government may not regulate abortions prior to the viability period. (b) Some statutes may toll within a number of years after the father dies. 3.. (a) If the statute requires to prove paternity. (b) The key argument is whether the father had any type of relationship with the child. then you must find how to do so. (2) Wills are less complicated because it overrides any statute. (i) But if the only way to prove paternity is by having a blood test. (i) The problem is when the statute requires to prove paternity within the father’s life. Abortion Issues a) Substantive Due-Process argument of right to privacy under the 14 th amendment. Paternity Issues a) Can a mother have blood tests paid by the state in an action to prove paternity? (1) Constitutional issue of procedural due-process (a) To determine what process is due the court must balance: (Mathews v Eldridge) (i) The private interest at stake. 2. (b) Since she can prove paternity by other means (testimony or admission by father). e) What about if in a divorce proceeding. Probate procedures a) Rights of an illegitimate children to recover from natural parent. then he has a liberty interest that is being infringed upon and entitled to a hearing. c) Can the government sterilized or chemically castrate convicted rapists against their will? (1) Equal protection issue: (a) Fundamental right of procreation vs. (i) Child rearing has been found by the court to be a fundamental right. (iii) The governmental interest affected. 2. d) The mere fact that the parents of the child are not marries does not necessarily relieve a natural parent from the responsibility of supporting the child. then denial of payment by the state would be unconstitutional (procedural due-process). Contraception. if the court finds first that the proceeding won’t be detrimental to the child. (ii) Risk that the procedure used will lead to erroneous results and probable value of the suggested procedural safeguards. Sterilization a) Can the government regulate the sale of contraceptives? (1) Contraception has been found to be an implied right found under the penumbras of the constitutional rights.

courts usually grants those wishes. . the biological father may be responsible for the support of the child. the husband of the surrogate mother is included because he most relinquish his parental rights. (b) A written contract would not matter because the parties weren’t married. (2) Minor’s right to an abortion (a) Under the federal constitution. the contract may state that payment is for expenses. (b) Public policy argument is that child born out of a marriage is the child of such husband and wife. such as medical expenses. (a) Other facts can be used to prove paternity. (b) Regulation requiring consent from husband is unconstitutional. If there’s a writing.13 State may enact regulation to further the health or safety of a woman seeking an abortion. d) Public policy issues: (1) Baby-selling. If so. the mother must show that there was a contract and that the father is estopped from rescinding such contract. (2) Artificial Insemination Homologous (AIH) . must look at case law. (i) 3. Courts may be unwilling to enforce this because it may violate public policy (baby-selling). (b) Florida expands the right to privacy granting state citizens an express right to privacy. c) What about if the parties aren’t married? (1) Then. (a) However. (2) If no agreement. (a) If the agreement existed. (a) If one of the parties is leaning towards avoiding procreation. then the curt will not enforce such contract. housing. (2) In other jurisdictions. then the court must weigh the interests of both parties. But if the parties are still in disagreement. then the general rule is to look at the preferences of the parties.woman is impregnated with semen from another man not her husband. so long as the regulation doesn’t present an undue burden on the woman seeking the abortion. Surrogate Parent Contracts a) Most jurisdictions will enforce these types of contracts if the parties complied with the statute. (3) Combined Artificial Insemination (CAI) . an element required by statute. the presumption of paternity doesn’t exist. However. we don’t want the child to become a state’s ward. f) Gestational Surrogate Contract (1) Method in which the surrogate mother is impregnated with the zygote of a married couple. d) What about custody battle between gay couple that contributed their sperm for insemination of a child? (1) Court can order blood testing to prove paternity and award such party the custody. etc. b) Who can be a party to the agreement? (1) Usually. require the parties to enter into a written contract for artificial insemination. they treat this type of dispute as one of contract. Also. including minors. (a) Remember the presumption that a child born out of a marriage is presumed to be the child of such husband and wife. (2) Does the other party have a constitutional argument of right to privacy (familial integrity)? (a) No. the father must prove by clear and convincing evidence that he withdrew his consent to the procedure.married woman is inseminated with semen mixture of her husband and another man. a mother may change her mind and assert her parental rights. then there’s a irrebuttable presumption that the husband is the father of the child. then courts may be more willing to enforce it. b) Can a man refuse to pay child support upon divorce because wife was impregnated with another man’s semen? (1) Most jurisdictions. which have a right to privacy from any government intrusion. (2) If contract is drafted using wording from the adoption statute. c) How can these types of contracts be enforced? (1) Most contracts require payment (consideration) to the surrogate mother for her services. (1) Jurisdictions with no statute. a state may regulate abortions on a minor using the undue-burden test. f) What about the rights of an inmate to artificially inseminate wife outside of prison? (1) Inmates rights are limited due to imprisonment. because the courts have never recognized a right to familial integrity for gay partners. e) What about a divorce case where a frozen embryo is in dispute? (1) Courts would look at the agreement and enforce it. (3) If a party can prove duress or fraud. food. e) Can the court order the biological father to pay child support after it invalidated the surrogate contract? (1) Yes. Assisted Conception a) There are three types of artificial inseminations: (1) Artificial Insemination Donor (AID) . (i) It means that the minor has a right to privacy from “unreasonable” government intrusion. including Florida.married woman is impregnated with the semen from her husband. the wife of the biological father is not included because she has no rights involved. where a written contract is not required. (2) Exploitation of women (3) Benefits by the rich at the expense of the poor. 4. such as if the father holds out to the world that the child is his. and to succeed.

What happens to the children removed from their home a) Foster home-care. Running away. Can you sue on behalf of a child that is injured. (1) Parents have a right to counsel. 3. C. (a) The court must determine whether there would be a permanent termination of parental rights. and when they are faced with permanent loss of custody of their children. then he could be found in contempt and institutionalized the kid. because the state failed to remove the child out of the home? a) The Supreme Court decided that as a matter of constitutional right. the surrogate mother has no genital connection with the baby. unless state statute says otherwise. (2) The child doesn’t have a right to counsel in either dependency cases or termination cases. 2. (i) That means that the right to counsel in dependency cases is not absolute. or in the home of an extended family member. and still leave the child in the home. hence giving the child a constitutional based claim. Termination of parental rights 1. but the training that they get can be different from one place to another. Grounds for termination (2) V. (i) Key issue of whether the guardian must be an attorney. If it focuses on the action by the father. generally. which is criminal if committed by an adult. (1) But the case is different when the child is removed from the home and then placed in a foster home. usually will be struck down. there’s not a right when the child remains in the home and the agency failed to remove him. 5. Constitutional Issues: a) Due-process argument of familial integrity. Children beyond parental control a) A child that commits an act. Parent/Child Relationship 1. 6. they are not entitled to state support. (2) The state has a legitimate interest to protect the interests of the child. or that the state should be more involved in the protection of the child. and society. the agency can’t even find the kids in foster care. c) There will be an adjudicatory hearing. because the attorney has an ethical obligation to counsel and assert his client’s rights. b) The agency. (2) Sometimes. (3) The only argument could be a contract one. (1) State must prove the allegations by clear and convincing evidence before termination is granted. (a) What if the extended family member is poor? (i) This is a key issue because. Criminal Child Abuse Statutes a) Key Issues: (1) Are they void for vagueness? (a) Courts will look to whether the statute focuses on the action by the adult or the child. can remove the child out of the home. (a) However. Therefore. (1) These places need licenses from the state. Statutory in most states. Difference between dependency proceedings and termination of parental rights proceedings a) Dependency cases do not automatically terminate parental rights. Truancy. (2) The agency can charge the individual with dependency procedures. after proper investigation. 3. a) Child may be precluded from inheriting from the father after termination of parental rights. is considered a juvenile delinquent. (1) The state only needs probable cause to remove the child from the home. 4. whereas in termination it does. group settings. (a) The rationale is that the kid is now in state’s protection. safeguarding due-process rights. Raising Children A. the court may order mediation to try to reach accord. (b) Supreme Court left it for the state’s legislatures to determine whether the parents have a right to get counsel in dependency cases. (a) Florida is divided on this issue. 2. Dissolves the parent/child relationship permanent. b) Children in need of supervision (1) Status offenders . b) Equal protection argument (1) Family life is a fundamental liberty. (a) If the child refuses to go. c) Key issues faced by the court: (1) If a child is unwilling to follow parent’s direction. b) Notion of family privacy (1) Arguments that the government should stay away from the family matters. the biological parents have complete control over the baby. b) What about the conditions in these places? (1) High incidence of child abuse and neglect in those places. (a) Smoking. in any dependency hearing. Steps taken by the abused children statute: a) Report is filled. (1) Only a small percentages of cases that start in dependency cases end up in termination of parental rights proceedings. Drinking. whereas a non-attorney will look for the best interest of the child.acts committed by juveniles that wouldn’t be a crime if committed by an adult. . Child Abuse and Neglect 1. parent. they have the right to a guardian ad litem. and then provide a hearing. and then get abused in the foster care. and a disposition hearing. B.14 In these cases.

(c) The override to the freedom of religion arise at the threat of life injury. Constitutional Arguments a) Privacy (1) Fundamental right of privacy of child rearing.15 Parent voluntarily surrenders parental rights. (2) The parents’ rights can be borne by the state if its interest is narrowly drawn and compelling. and has the opportunity to prevent such conduct. . (b) Balance Tests: (i) Interests of the child (ii) Interest of the state (iii) Interests of the parents. Medical Decision-Making 1. What is the applicable law? a) Must check state statute or the constitution. (1) Can’t be withdrawn. 4. unless parent can prove duress or fraud. to the extent necessary to cure the kid. a) C. b) Freedom of Religion (1) Is it an impediment to the religious believes of the parents? (2) Free exercise clause of the first amendment (a) Difference between belief and practice. 3. health. c) Parents conduct towards the child threatens the life or well-being of the child. d) Parents conduct that endangers the life. (a) Law must be a compelling state interest and narrowly drawn to achieve its interest. Parents have a right to legal counsel in permanent termination of parental rights. Isn’t the test a “best interest of the child”? a) Since this includes a constitutional issue. b) Identity or location of parent can’t be ascertained. the state’s interest must be more than “best interest”. or safety of the child. 2.

Sign up to vote on this title
UsefulNot useful