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Family Law
Professor Abrams

State Interests in regulating marriage and divorce:


- Cultural & Historical Heritage:
foster prevailing cultural norms / moral interest
- Welfare of the Family:
Marriage is a good way to support/protect children
Emotional and psychological well being of the family members
- Economic interest:
family situations are more economically stable than other relationships
protecting the weaker/vulnerable parties in dissolution
- Encouraging Procreation (often an argument against same sex marriage)
problem = marriage of older persons who cannot procreate
pretty weak argument but raised frequently

State Interests in Divorce Regulation May be different:


> you cannot get a divorce if you were not married under the marriage act
> if you were, the divorce act is the only way to get a divorce
- economic reasons loom especially large for regulating divorce

Arguments against interfering in marriage:


- Legal Tradition of Noninterference in family affairs
tough for state to regulate an intact marriage (messy and private)
> domestic violence historically went unpunished b/c the family unit was seen as
an entity in the name of the man (this has changed)
- Intact Marriages
law is not particularly concerned w/ treatment of children w/in an intact
marriage unless child abuse & neglect suit is filed
> dangerous to start investigation and not remove abused persons
> foster care is only option and isnt a great replacement
- Most researchers agree that marriage doesnt affect childrens psychological & physical
needs

* State regulation pattern:


Marriage: monopoly on entry to marriage
Intact Marriage: state generally stays away (unless abuse / neglect suit)
Divorce: monopoly on dissolution of marriage
- all marital property is on the table, equitable split will be determined by the
court if the parties cannot agree

Changing Gender Roles:


Divorce act and marriage act are gender neutral today, but not always applied as such

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- used to be only support for women (now for either spouse)


- custody statutes are gender neutral today
* wives get custody about 70% of the time
Courts today are very influenced by what went on in the marital household (used to be
entirely based on who held title, wives were given large alimony awards)
Equitable Distribution:
- relative contributions of parties in accumulating the property are
considered in dividing property (who cared for children, house,
ect)
social research is responsible for much of this change (focus on how marriages are
structured in reality)

Spain / Bianchi Article: as long as men have fewer family responsibilities the potential exists for
women to choose or accept lower occupational status and earnings,
which affects their bargaining position w/in the marriage

REQUIREMENTS FOR MARRIAGE:

In most states [MO]: {model act: cb 73}


1. marriage license
- usually lack of this does not void (or make voidable) the marriage
2. solemnization
- intercourse is not necessary to solemnize marriage
*Common Law marriage states do exist today, although just a few
* Many Js have 3-5 day waiting period

Formal Requirements
Licensure MO 451.040 (paraphrased)
1. Previous to any marriage in this state, a license for that purpose shall be obtained from the officer
authorized to issue the same, and no marriage contracted shall be recognized as valid unless the
license has been previously obtained, and unless the marriage is solemnized by a person
authorized by law to solemnize marriages.
(substantive reqs in MO, void unless both completed) [MO is in minority on this]
2. Licenses shall be recorded by the recorder for a $10 fee only good for thirty days
3. The recorder shall issue the license upon the expiration of 3 days after the receipt of the
application
a. The 3-day waiting period can be waived for good cause shown & by reason of such
unusual conditions as to make such marriage advisable
4. Violation of this section is a misdemeanor.
5. CL marriages are void. (MO recognizes CL marriage formed in other states)
6. no marriage shall be deemed or adjudged invalid for want of authority in any person
solemnizing the marriage pursuant to section 451.100, if consummated with the full belief
on the part of the persons, so married, or either of them, that they were lawfully joined in
marriage [de facto officer]
Solemnization MO 451.100 (paraphrased)
1. Marriages may be solemnized by any active or retired clergyman; by any judge, including a
municipal judge; or by a religious society, institution, or organization when either party to the
marriage is a member of such group.

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451.010: marriage is civil K (supp 3)


451.020: who can marry
451.022: policy against marriage not btw man & woman
451.030: bigamous marriage void
451.090: no marriage w/o ct order under 15, must be parental consent under 18
451.110: certificate; 451.115 & 120: penalties for improper marriage; Others on records
451.220: marriage Ks to be in writing; 451.230 - 240: K proved, recorded, notice
451.250 - 270: individual property and spouses debts (supp 11-12)

State v Denton:
failure to satisfy a formal req will not invalidate a marriage unless the statute provides
for invalidation [MO statute requires] (here an unlicensed marriage still a
marriage)
usually license, solemnization reqs are formal and do not provide for voiding
bigamy, age, ect are usually substantive reqs and do invalidate a marriage
> req only substantive if statute voids marriage when req is not satisfied

- Failure to follow both formal reqs looks like a CL marriage and the marriage is not valid in
states that do not allow CL marriage (at least if contract of marriage formed in that state)

* Presumption: an evidently valid marriage is presumed valid


> overcome by showing that the statute invalidates this marriage

Marital Communication Privilege:


- designed to encourage marital communication and frankness
- privilege prevents spouse from testifying as to any confidential communication btw the
accused and the spouse

CL Marriage:
- problem: may encourage fraud when people die and someone claims to be spouse
- about 40 states have abolished CL marriage
* cant get out of CL marriage except by divorce
* no CL marriage if marriage banned in your circumstance (bigamous, ect)

In Re Estate of Hall:
One must prove by clear & convincing evidence that a couple had
1. Present Agreement (meeting of minds) made in a state where CL Marriage is
recognized [writing is not required]
- civil K, verbal agreement + intent if there are witnesses
2. Continuously Cohabitated
- must live together, title home jointly, ect
3. Held themselves out as H & W in the community in which they lived
- ie tell others of your wife / file taxes jointly / wearing wedding rings
Notes on CL marriage:
- existing marriage by either party prevents a CL marriage
- no CL divorce

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- short term visits to CL marriage states and it looks like you are trying to get around the
marriage reqs, MO will not recognize

Impediments to Marriage:
Ex: other marriage, ect
- if either party was ignorant of the impediment at the creation of the relationship, a
marriage is created immediately upon the impediments removal
- if both knew of the impediment, proof of a new agreement is required

Putative Spouse Doctrine:


- to ameliorate hardship when a marriage is found to be void / voidable (bigamous,
incestuous, no license, ect) b/c divorce act does not apply

Doctrine: where an apparently valid marriage is found to be void, a good faith party may
receive some or all of the benefits of the divorce act
1. must be apparently valid marriage
- cant be used for homosexual marriage in MO
2. party claiming doctrine must show good faith belief that the marriage was
valid (throughout the marriage)
- belief must be in a legally recognized marriage: where there is no
attempted compliance w/ marriage act, or usual indicia of
marriage are absent, the belief is unreasonable - no good faith (In re
Vryonis)
3. marriage in fact is invalid

* doctrine does not produce a valid or CL marriage: just provides for equitable
treatment by a court (some benefits of divorce act)

Distribution: equitable (fair) distribution, not equal distribution


- court shall apportion property, maintenance, and support rights among the
claimants as appropriate in the circumstances and in the interests of
justice

Estate of Vargas:
- man leads double life for several decades w/ two families, ct here splits his
estate 50/50 btw the spouses (both were married to the man for a long
time)

Schaefer: some LA cases find a duty to investigate when informed of a partners prior
marriage

presumption of validity of latest marriage: law requires that party attacking later
marriage bear burden of proof of non-dissolution of first marriage

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Marriage Regulation in General:


- most marriage regulation is state regulation
- Fed dist cts will not entertain a divorce / adjustment proceeding under diversity
jurisdiction

Zablocki v Redhail: Constitutionality of Marriage Statutes


Marriage is a fundamental right: 2 ways to address
Strict scrutiny used if
- State imposes a direct & substantial interference on right to marry such as
same sex marriage ban, bigamy ban, present case (substantive reqs)
> state must show a compelling state interest & narrow tailoring
Rational basis used if
- State imposes a reasonable regulation on the right to marry (formal reqs)
> state must show that there is a rational basis for the regulation
here the USSC finds that restricting those behind on their child support from marrying
another woman is unconstitutional (fails SS b/c not narrowly tailored the statute
denied the right to marry when lesser regulation would have sufficed)

* most cases brought today involve substantive reqs and are thus analyzed under the first
category

Same Sex Marriages: most const litigation involves substantive bans on marriage
MO 451.022: recognizes ONLY marriage between a man & a woman
- Any purported marriage between same sex partners is invalid

Goodrich v Dept of Public Health (Mass):


MassSC decides that prohibiting same sex marriages is against Mass constitution
- right to marry means little if it does not include the right to marry the person of
ones choice subject to govt restrictions in the interests of public health,
safety, welfare
* trial ct focused on encouraging procreation as a reason to uphold the ban
barring person from the protections, benefits, and obligations of civil marriage just b/c
they would marry a person of the same sex is against Mass constitution

** Transsexual in marriage: NJ found in, MT v JT, that the P has become a woman through
surgery and should be treated as such for marriage purposes

Conflict of Laws:

Full Faith & Credit Clause: states usually recognize acts done in other states
Conflicts Rules: marriage is valid everywhere if valid under the law of the state where the
marriage takes place (generally)
Exceptions:
1. violates a strong public policy of that state (MO policy: 451.022, Art1 33)

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2. A domiciliary of a state goes to another state to take advantage of the states


law to avoid the strictures of the law of the domiciliary state [MO has
this law]
Federal Defense of Marriage Act:
- no state shall be reqd to give effect to any public act, record, judicial
proceeding of any other state respecting a relationship btw persons of
the same sex that is treated as a marriage under the laws of such other state
or a right arising from such relationship
- defines marriage as being a union btw one man and one woman and a spouse is
a person of the opposite sex who is a husband or wife

Age Restrictions: Four types


1. age of consent where person can marry w/o permission or consent (18 usually, MO)
2. age when can marry w/ parental consent (15-18 in MO, w/ consent of custodial parent)
3. age when court authorization is necessary (under 15 in MO, need ct and parental
consent also need good cause such as pregnancy of bride)
4. minimum age of marriage-ability (not set as a definite in most states)

MO age restrictions are formal requirements


- if 2 minors marry, they have a voidable marriage
> voidable = it can be affirmed (like a K) or annulled until age 18 or
shortly after
- rational basis is usually satisfied quite easily (child protection)

Incest Bans:
- all states have incest bans in their marriage acts
- distinguish btw consanguineous and affinity relationships
Consanguinity: blood relationships w/ at least one common ancestor
Affinity: relationships created by law
- some states continue the prohibition after the marriage creating the
affinity is ended, whether by death or dissolution (after divorce,
ex-father in law still cannot marry ex-daughter in law)
- Adoption: often statutes req that adoptee be treated as natural family member
> CO ct struck down statute prohibiting marriage btw siblings by adoption

451.020: certain marriages are invalid at the outset


Marriage between (1) parents & children (2) grandchildren & grandparents (3) siblings of
or whole blood (4) uncles / aunts nieces / nephews (5) 1st cousins are unlawful (does
not expressly cover adoptions) (6) persons lacking capacity to enter into marriage K
such as those already married, ect

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Additionally, it shall be unlawful for any city, county or state official having authority to
issue marriage licenses to do so to persons aforesaid knowing that such person is w/in the
prohibition of MO law & guilty of a misdemeanor

568.020: Incest is a class D felony

1. A person commits the crime of incest if he marries or purports to marry or engages in sexual
intercourse or deviate sexual intercourse with a person he knows to be, without regard to
legitimacy:
(1) His ancestor or descendant by blood or adoption; or
(2) His stepchild, while the marriage creating that relationship exists; or
(3) His brother or sister of the whole or half-blood; or
(4) His uncle, aunt, nephew or niece of the whole blood.

2. For purposes of this section:


(1) "Sexual intercourse" means any penetration, however slight, of the female sex organ
by the male sex organ;
(2) "Deviate sexual intercourse" means any act of sexual gratification between persons
not lawfully married to one another, involving the genitals of one person and the mouth,
tongue or anus of another.
3. Incest is a class D felony.

Meisner: (MO) legislature does not say whether uncles / nieces by adoption can marry, so the
courts will not find such marriage to be against the law (see 451.020; 568.020)

* With regard to adoption, most states allow marriage unless one of the parties to the marriage
was the person who created the relationship. (disallows man marrying daughter by adoption, but
not uncle marrying niece by adoption)
- most states permit a step-brother to marry a step-sister (they did not create the
relationship)

incest bans based on blood relationship do survive an adoption, even thought the relationships
are extinguished, there is still consanguinity and criminal incest statutes are defined by blood

Monogamy:

568.010: Bigamy is a class A misdemeanor

1. A married person commits the crime of bigamy if he:


(1) Purports to contract another marriage; or
(2) Cohabits in this state after a bigamous marriage in another jurisdiction.
2. A married person does not commit bigamy if, at the time of the subsequent marriage
ceremony, he reasonably believes that he is legally eligible to remarry.
3. The defendant shall have the burden of injecting the issue of reasonable belief of eligibility to
remarry.

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4. An unmarried person commits the crime of bigamy if he


(1) Purports to contract marriage knowing that the other person is married; or
(2) Cohabits in this state after a bigamous marriage in another jurisdiction.
5. Bigamy is a class A misdemeanor.

USSC has consistently rejected assertions that religious freedoms protect the practice of
bigamy (based on moral, social reasons b/c no other reasons really hold up)

Enoch Arden Situation:


- 1 spouse is absent w/out explanation for a lengthy period other spouse remarries 1st
spouse returns, most states dont punish the 2nd marriage & consider this doctrine an affirmative
defense

Consent Requirements:

- need capacity to contract (MO 451.010): ability to comprehend the nature of marriage and the
duties and responsibilities attendant thereto

Possible Problems with Consent:


1. Fraud
a. need to show by clear & convincing evidence
b. fraud must go to an essential element of the marriage
Items usually not enough for fraud
- misreps of wealth, personality, character usually not enough
- hiding prior gay / lesbian activities or lack of chastity not enough
- failure to reveal prior divorce usually not enough
Items usually enough for fraud
- misreps of fertility, willingness or ability to procreate usually enough
- non-disclosure, misrep of pregnancy by someone else (claiming that
child is that of the married partner when this is untrue)

2. Duress
- high std for this, anything short of a shotgun marriage will not likely suffice
- need some sort of serious duress (threat of physical harm, ect)

3. Limited Purpose Marriage: so limited that no genuine marriage was intended at all
purpose of obtaining a govt benefit, citizenship

Heart Balm Statutes / Breach of Promise to Marry:

Breach of Promise to Marry:


Some states still allow this action
Damages: mental anguish, pain and suffering, tangible injuries such as down
payment for renting hall, ect
Heart Balm Statutes:

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-Many states have such laws, they eliminate the COA or reduce the scope of
damages
* engagement ring: sometimes found to be unconditional gift, need not be returned upon
breakup, other times it or its value must be returned

Other CL Tort Suits available:

Alienation of Affection: MO abolished


1. 3rd party D intentionally had affair
2. P lost affections / consortium of the spouse
3. Connection btw loss of affection and actions of 3rd party

Criminal Conversation: MO abolished


- can recover against a 3rd party who had sex with your spouse

Seduction: not abolished but very rare


- available to fathers whos daughters were seduced by 3rd party

Presumption: if the law presumes something, party wanting to assert the contrary has the
burden of proving such
Reasons: a. matters of policy promote presuming certain things
b. law will presume something to be true that is normally true

Examples of presumptions:
formalities of marriage have been complied with (burden on one who opposes)
parties had the capacity to marry
latest of successive marriages is valid

Recognizing Cohabitation:

Number of people cohabiting is increasing:


Couples cohabiting per couples married: 10 / 100
- heterosexual cohabitation relationships are less stable than marriages
Gay couples cohabiting per strait couples married: 1.1 / 100

Const Problems w/ laws affecting families:


- SC has struck down laws regarding
interracial marriage Loving
alimony obligations on husbands but not wives Orr
different stat lim for support actions by non-marital children Clark

Meyer / Pierce: stand for the proposition that parents have a DP right of privacy to raise
their children in their own home as they see fit (striking down
prohibition of teaching German / mandatory attendance of public school)

Eisenstadt v Baird:

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- privacy rights belong to individuals, as well as married couples

Lawrence v Texas:
- no legitimate state interest in regulating morality (much of crim / marriage code is moral)
right to liberty under SDP gives homosexuals full right to engage in their
conduct w/o intervention from the govt
Scalias Dissent: no std of review ever applied by majority; ct never says this
activity is a fundamental right
Kennedys Concurrence: this ruling does not involve whether the govt must give
formal recognition to any relationship that
homosexuals seek to enter
- AR, NJ, IN: used to find preclusion of gay marriage constitutional
* there is likely a compelling state interest in regulating marriage
anyway
- 11th circuit: applied rational basis to find that FL could prevent gay
couples from adopting

Implications:
Fornication statutes: to the extent that they focus on private, consensual
conduct btw consenting adults, such laws may be repealed or
invalidated
Anti-Cohabitation statutes: often with public display, not as likely to be
affected by Lawrence
Adultery laws: the act is private but the extension not clearly w/in scope
of Lawrence

Marvin v. Marvin
if there is an agreement to cohabitate btw parties, the courts will enforce it as a matter
of K law
- such K is unenforceable only to the extent that it explicitly rests upon the
immoral and illicit consideration of meretricious sexual services (portion
of K that can be severed from such consideration will be enforced)
- implied agreements will also be enforced: implied k, agreement of , joint
venture, quantum meruit, ect

most cts have found that cohabitation agreements btw gay partners are enforceable on
the same basis as those btw heterosexual partners

Protections of the Divorce Act: do not apply to split of partners if there is no marriage
Best order of claims
- express agreement

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> Marvin says not enforced as far as relates to meretricious relationship -


fornication (most Js will not bother w/ whether or not the
consideration involves fornication)
> can be oral in most Js MN &TX require a writing
- implied agreement
> NY will not imply b/c then they would have to determine what the
agreement was [some courts allow these, some dont]
- equitable claim to property: most courts have rejected claims based on equity
Torts Remedies for Cohabitants: typically restricted to persons standing in certain immediate
family relationships to the victim (spouses, but not
cohabitants)
Loss of Consortium:
- available to spouse for direct physical injury to another spouse
- available at common law only to husbands (b/c only wives obligated to give this
to spouse)
> only to spouses in almost all states (not VT or CT)
Bystander Claims:
- emotional damage due to another person being injured in your presence
> most states only recognized on behalf of spouses
- only 2 state SCs permit non-marital cohabitants to bring bystander
actions & those cases involved engaged cohabitants
Wrongful Death:
> cts reluctant to extend to non-marital cohabitants
> MO: only by spouses (not cohabitants)
Other Issues:
Employee Benefits: social security and workers comp only flow to spouses
Employment Discrim: mixed results for govt employees dismissed for engaging in
unmarried cohabitation
- unmarried procreators cannot be discriminated against
Probate: intestate succession does not recognize cohabitants (implied K may be allowed)
- good idea to have a will / trust set up if you are not married
Spousal Violence: non-marital cohabitants have become recognized more frequently as
falling under spousal abuse statutes
Guardianship: few states recognized cohabitants as default decision makers (can
designate anyone in power of attorney)
DOMA: all references to spouse, marriage, ect apply only to opposite gender marriages

Formal Registration Schemes:

1. Domestic Partner Ordinances (ex: San Fran)


- allow unmarried opposite-sex couple to register as domestic partners
- San Frans Equal Benefits Ordinance: prohibits city from King w/ any business
that discriminates against employees w/ domestic partners
* Fed ct: says domestic partner policies that exclude opposite sex non-married
couples are constitutional

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2. Civil Unions
- in VT, only available to gays / lesbians
- provides for all the same benefits, responsibilities as a marriage
- includes partner in all definitions of family / spouse / ect
- gives marriage-like rights to children of one partner
3. Reciprocal Beneficiary Relationships
- Hawaii legislation extends to same-sex couples some of the 3rd party benefits
available to married couples
- creates no claims for either partner at inter-vivos termination (claims exist only at death)
SPOUSAL SUPPORT:

- CL: husband had to provide support, wife had to provide services but not support

McGuire: interpreting CL scheme of support


- at this time marriage was considered a unity btw the spouses, since marriage was intact
here, the woman could not sue the husband for support (improper support)
unless she separated / divorced him b/c an entity cannot sue itself
- The living standards of a family are a matter of concern to the household & not the
courts so long as the marriage is intact
* marital misconduct used to be a highly relevant part of seperate maintenance disputes
Today: support obligation is gender neutral
- no distinction btw support / services
- cts still reluctant to get involved in a support proceeding during an intact marriage
- child support: during an intact marriage, ct will get involved only if non-support is so
serious as to constitute neglect / abuse

Necessities Doctrine:
- CL: if wife not getting necessities, she could purchase them and the husband would be
liable for the expense
- merchants often were leery of extending credit to wife w/o consent of husband
- tied to fault based divorce ideas, many cts said husband not liable if wife
wrongfully left him
- Today: can be enforced against either spouse with regard to necessities (often occurs in
medical situations)
* tough for 3rd party to tell if its a necessity, they do not want to take the risk
- to get around this, have someone else co-sign
> child support: medical care is a necessity of life, doctor as 3rd party creditor can
sue parents for medical assistance given to child
> criminal non-support: statutory in most states, punishes willful non-support

Harris:
wife held to be liable for husbands medical expenses
a wife is liable for necessary medical expenses provided to her husband, the same as a
husband is in reverse
Elements: 1. medical services provided to spouse
2. necessary for health / well being

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3. D was married to him / her at time expense were incurred


4. payment for the necessaries has not been made

DOMESTIC VIOLENCE:

CL: originally provided that a husband could subject his wife to corporal punishment as long as
he did not inflict permanent injury

Statistics:
Victims usually know the offender well:
- about of lone offender violence against women was perpetrated by someone victim knew
in 29% of those cases the perp was an intimate (husband, ex-boyfriend, ect)
victims of incidents more likely to be injured if perp is intimate

- 25-30% of all marriages involve violence


- more prevalent among poorer people, but may be a recording error (not more prevalent in rural
areas than big cities)

Doctors who admit abuse:


Male: 14%
Female: 31%
Miscellaneous:
When mom is abused, 50% of the time, children will be abused
Children who watch abuse more likely to abuse (same as if he was abused himself)
Domestic violence victims and perps are more likely than others to be violent outside of
the household
95 percent of abusers are male
Women often use weapons to overcome size difference

Mandatory Arrest and Prosecution: 16 states call for this if domestic violence is discovered
Arrests:
- decreases future abuse with white families
- increases future abuse with black families
the deterrent effects of arrest are greater for batterers who perceive higher social
costs associated with the act of violence and with arrest
Violence Against Women Act (federal, 1994):
- national toll free hotline
- grants for shelters / implementation of mandatory arrest policies / judicial education
Insurance and Workers Comp: sometimes attempt to discriminate against battered women by not
covering the injuries inflicted as a result of such treatment
Rape: used to be spousal immunity to this charge b/c consent was inherent in marriage, not the
case today (at least for sure in NY)

Litigation: spousal immunity to litigation on trend towards abolishment, majority of states now
permit litigation btw spouses

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Missouri Statutes: supp pages 13-27

455.010: Definitions
1. Abuse includes:
assault / battery / coercion
harassment: def, includes
a. following in public places
b. window peeping, lingering about residence
sexual assault / unlawful imprisonment
455.015: Venue = where petitioner resides, where alleged incident occurred, where respondent
may be served
455.020: Order of Protection when (adult version; child version must be filed separately)
1. adult subject to abuse by a present or former adult family or household member, or
who has been the victim of stalking
2. right to relief not affected by petitioners leaving household to avoid abuse
3. order effective throughout all cities and counties of MO
455.025: Clerks duty to explain procedures to litigants
455.027: No advance filing fee or bond reqd
455.030: Filings Info reqd
455.032: Jurisdiction
- ct shall have J to enter an order of protection if petitioner is present (regardless of where
D is) permanently or temporarily w/in MO and if respondents actions have been
attempted or are threatened w/in the state of MO
455.035: Protection Orders
- upon filing and for good cause, ct may immediately issue ex parte order of protection
- immediate and present danger of abuse is good cause
455.040: Hearing, duration of order, renewal
- hearing w/in 15 days unless renewal for good cause
- if proved at hearing, full protection order for period of time (btw 180 and 365 days,
renewable)
- copy of petition, full order to respondent
- copy of order to law enforcement in J where petitioner resides and to MULES (MO
uniform law enforcement system)
455.045: Temporary Relief is Available for ex parte order
455.050: Relief Available for full or ex parte order
455.067: Order from another J, registration, modification
455.073: Forms for Order
455.060: When Order Terminated
- dissolution of marriage terminates limited parts of order (not abuse, stalking, ect)
- when parties submit written voluntary consent to termination
- order may not change custody when action for dissolution has been filed or previously
awarded
455.065: Subsequent Modification
455.075: Legal fees can be charged to respondent
455.080: Agency Response to abuse calls

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455.083: Officer can rely on copy of order of protection


455.085: Arrest for abuse, or violation of order
- officer has probable cause to believe abuse: can arrest
- officer declines once, must fill out report, 2nd finding of probable cause w/in 12 hours,
officer must arrest
- probable cause for violation of order automatic arrest (regardless of victims assent)
- officer not reqd to arrest both parties
- failure to surrender custody of children to comply w/ order arrest
- violation penalties
455.200 -225: Domestic Violence Shelters
337.636: Privileged Communications, Psychologists, Counselors, Social Workers
Exceptions to Privilege:
- consent
- info pertains to crim act
- waiver of privilege
- testimony concerning adoption, child abuse / neglect, adult abuse, matters
pertaining to the welfare of clients
337.639: Exceptions to privileged communications for Psychologists, ect
- testimony concerning adoption, child abuse / neglect, adult abuse, matters
pertaining to the welfare of clients
491.010: Witnesses interest in outcome of litigation does not disqualify them
456.260: Exception to Spousal Privilege
- crim prosecution under 565, 566, 568 involving an alleged victim under 18 (spouse can
testify against spouse here using confidential communications)

Notes on Protective Orders:


Petitioner must be 18 years old or otherwise emancipated
- marriage alone does not emancipate

Order will not be given unless there is threat of future abuse, allege
- first,
- last, and
- worst episodes of abuse in the petition

Fed law prohibits charging ct costs to battered spouses seeking protective order
Costs to respondent is a remedy allowed
When abuse is alleged against a child, ct must appoint attorney (guardian ad litem)

NAME CHANGES:

- Marriage itself does not change a wifes surname (90% of women use husbands name)
habitual user test: woman gets married and habitually uses the husbands name
most states have a name change procedure

2 ways to do it:

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1. Self-Help: There is a legal right to call yourself whatever you want, in absence of
fraud
2. Petition in Court, as below

527.270: Name Change Statute


Hereafter every person desiring to change his or her name may present a petition to that
effect, verified by affidavit, to the circuit court in the county of the petitioner's residence, which
petition shall set forth
1. the petitioner's full name,
2. the new name desired, and
3. a concise statement of the reason for such desired change; and
It shall be the duty of the judge of such court to order such change to be made, and spread
upon the records of the court, in proper form, if such judge is satisfied that the desired change
would be proper and not detrimental to the interests of any other person.

DIVORCE

History:
- all states now have no fault divorce (basically since mid 70s)
- 2/3 of states still have fault-based std in parts of their divorce statutes

England: divorce-less until 1857, then only legislative divorce (rare and expensive)
1850-70: some US states developed rather loose divorce laws
1870 early 1900s: tide began to turn back to more restriction
- migratory divorce, states such as IN and NV offered short residence periods and
easy divorce laws
- it was thought that higher divorce rate was caused by lax grounds for divorce
(not really true: historically, lax divorce laws are not cause of divorce
rate but the result of it divorce rate spiked before the advent of no-fault
divorce)
Adultery: recognized as ground for divorce in all states, most also recognized desertion
or abandonment
NY, NC: had no divorce at all until mid 1900s

Easier divorce came along with divorce for cruelty


- as long as the charge was uncontested, basically could be had for the asking
- in this way, divorce became more available w/o enlarging statutory grounds

Before No-Fault divorce:


case had to be proved by a preponderance of the evidence
> had to prove adultery, cruelty, ect
> respondent could raise counterclaims

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Collusive suits: held to constitute


a. commission of an offense for the purpose of obtaining divorce
b. introduction of false evidence not actually committed
c. suppression of a valid defense
this would happen all the time under fault based divorce and everyone involved
knew it
- evidence of adultery would be produced by the person against who it
would be used

Current Breakdown: {model act: cb 217}


About 15 states are pure no-fault states
- parties simply show irretrievable breakdown of the marriage
35 states are hedged-no-fault states [MO]

Criticism about no fault divorce


- it has made divorce too easy
- society is hurt by divorce rates between 40-45% of all first time marriages
- most divorced families include minor children (who have difficulty adjusting)
Argument in support of no fault divorce
- Does it make sense to keep an unhappy marriage together, even if there are
children?
- before N-F divorce, divorce had a stigma to it (carried over to lawyers)

MOs hedged no-fault statute:

452.320.

1. If both of the parties by petition or otherwise have stated under oath or affirmation that the
marriage is irretrievably broken, or one of the parties has so stated and the other has not denied
it, the court, after considering the aforesaid petition or statement, and after a hearing thereon
shall make a finding whether or not the marriage is irretrievably broken and shall enter an order
of dissolution or dismissal accordingly.

2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably
broken, the court shall consider all relevant factors, including the circumstances that gave rise to
the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall

(1) Make a finding whether or not the marriage is irretrievably broken, and in order for
the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the
court of one or more of the following facts:

(a) That the respondent has committed adultery and the petitioner finds it
intolerable to live with the respondent;

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(b) That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent;

(c) That the respondent has abandoned the petitioner for a continuous period of at
least six months preceding the presentation of the petition;

(d) That the parties to the marriage have lived separate and apart by mutual
consent for a continuous period of twelve months immediately preceding the filing
of the petition;

(e) That the parties to the marriage have lived separate and apart for a continuous
period of at least twenty-four months preceding the filing of the petition; or

(2) Continue the matter for further hearing not less than thirty days or more than six
months later, or as soon thereafter as the matter may be reached on the court's calendar,
and may suggest to the parties that they seek counseling.

No court shall require counseling as a condition precedent to a decree, nor shall any
employee of any court, or of the state or any political subdivision of the state, be utilized
as a marriage counselor. At the adjourned hearing, the court shall make a finding whether
the marriage is irretrievably broken as set forth in subdivision (1) above and shall enter
an order of dissolution or dismissal accordingly.

* living separate and apart: includes constructive separation


- found by MO and IL courts to include situations where the parties live in separate parts
of the house, did not share bedroom, did not communicate w/ each other, and
generally led separate lives

Mitchell:
MO gen assembly intended that a spouse, who by his actions makes the life of the
other spouse intolerable, should not profit by his or her own wrongdoing and
thereby obtain a dissolution of the marriage over the objection of the other
perhaps innocent spouse
ct here denies fault based divorce available through 452.320 b/c the respondent was
not at fault for the actions (petitioner was the one producing the offensive
behavior)
- petitioner waited for the appropriate period and filed for a NF divorce available
through 452.320.2e

Pure No Fault: (Model Act is example)


- divorce available on no-fault showing by either party that marriage has failed

2 types of provisions:
1) marital breakdown (irretrievably or irremediably broken)
2) parties lived separate and apart for certain length of time
Summary Proceedings: makes NF divorce more convenient

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usually just for childless marriages


often req affidavits indicating disposition of property / waiver of rights
USSC: has not directly held that the right to divorce is fundamental
- may be a logical extension of Zablocki (fundamental right to marry)

Continued use of Fault Grounds: reasons to use when NF and fault are available
a. sometimes dissolves marriage more quickly than NF procedures
b. fault divorce may provide one party an advantage in settling the financial aspects
c. state may bar unilateral NF divorce

Policy of NF Divorce:
Why No-Fault Divorce?:
- necessity of alleging marital offense creates an atmosphere of hostility
- perjury may be induced by reqing a fault
Arguments against NF divorce:
- it undercuts social norm that marriage is a life-long commitment
- marriage is K that the law should not allow unilateral dissolution
- restrictions on unilateral divorce necessary to protect innocent spouse

Notes: On Divorce Rates and Restrictions


No fault divorce was a reaction to the high divorce rates and not the cause
Most of the shift to NF divorce occurred in the 1970s, after the largest increase in
divorce rates had already occurred
unlikely that a repeal of NF divorce would lead to substantially less divorce
42% of all marriages in the US fail
Divorce rate peaked in 1981, have fallen off since then
- other factors that may have produced rise in divorce: womens movement, womens
entry into labor market, higher expectations, commitment to individual choice

Effects of Divorce on Children:


- often the pre-divorce household has worse effects on children than does the actual
divorce (marital conflict, ect)
most children from divorced families function as well as those from married
families
many differences in psychological adjustment following divorce are due to post
divorce family relationships: econ standing, relationship w/
(non)residential parent, how conflict expressed btw parents
- responses:
a. return to fault grounds
b. different rules for marriages w/ minor children
- fast track / slow track programs

Covenant Marriage: LA, AR, AZ are only three w/ this


parties getting married sign a covenant saying if they do get divorced, they will
voluntarily accept a more stringent process.

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- Greater waiting period


Divorce only available if there is fault ground, or
if no minor children and spouses lived separate & apart for 1 year
- Mandatory premarital counseling
- Mandatory declaration in writing
* According to Abrams, LAs covenant marriage is less stringent than MOs
regular divorce.
* very few (1.5% of marriages in LA) choose the covenant option

MO Procedural Aspects of Divorce:

Supp pages 36-48:

452.075: Remarriage of Former Spouse Ends Alimony


452.080: Alimony shall be a lien, when
452.110: Judgment for Divorce not appeal-able, review can be had of alimony, maintenance,
child support
452.130: If a person abandons spouse w/o good cause, court on petition can order maintenance /
support and compel security for such and enforce thru lawful means
452.140: No property exempt from attachment in proceeding for maintenance, alimony, child
support
452.150: Rights to Custody Equal
- neither father nor mother has paramount right to custody or services and earnings or
management of property of unmarried minor children
452.160: CBOW = terms father, mother, parent, child, ect apply equally to children
born out of wedlock as to those born w/in
452.170: Enjoyment of Separate Estate
- if married person holds real estate in her own right and her spouse gives her cause to
live separate, she may petition the ct and pray for the sole enjoyment of such
452. 180: Ct Authorization to Sell Property
- when married person abandons spouse & fails to support, ct may authorize spouse to
sell that persons real and personal property
452.200: Husband Enjoined from Squandering Property
- married woman may file petition setting forth that her husband is about to waste /
convert to his own use as fraud on her property to which she is entitled in her
own right and the ct may enjoin such action and appoint a receiver for such
property
452.210: Ct may authorize persons owning money to the husband to pay it to wife instead
452.220: Entitled to Earnings of minor children when
- during the period that spouse shall fail to provide support
452.230: Proceeds of sales allowed by other sections above can be used for necessary support of
person and family
452.240: Petition may be filed and proceedings shall be as other civil suits

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452.250: Same proceedings except no appeals by husband from any order or decree until
husband has indemnified petitioner for all delays and costs
452.300: Procedure and Venue
5) Action shall be commenced in county in which the petitioner resides or respondent
resides (must have resided there for 90 days)
if brought where petitioner resides, ct may transfer to where respondent resides
if
1. such is county where children resided in 90 days prior to proceeding, or
2. best interest of children to have it there b/c
a. they and one parent have significant connection there, &
b. substantial evidence concerning care, protection, relationships
in that county

452.305: Judgment of Dissolution / Legal Separation


1. Judgment of dissolution of marriage if
1) 1 of the parties is resident (domiciliary) of MO or member of armed services
stationed in MO for 90 days preceding petition and,
30 days have passed since filing of petition
2) marriage is irretrievably broken: no reasonable likelihood of preservation
3) ct has considered / made provision for child custody, support, spousal
maintenance, disposition of property (to extent it has J)
2. Judgment of Legal Separation if
1) 1 of the parties is resident (domiciliary) of MO or armed services and,
30 days have passed since filing of petition
2) marriage is not irretrievably broken: reasonable likelihood of preservation
3) ct has considered / made provision for child custody, support, spousal
maintenance, disposition of property (to extent it has J)
452.310: Petition must Include
1. Petition shall be verified
shall allege that marriage is irretrievably broken (or is not for separation)
2. Petition for Dissolution of Marriage shall set forth
Residence of each party
Date of marriage and place registered
Date on which parties separated
Name, DOB, and address of each child
Whether the wife is pregnant
any arrangements as to the custody, support, maintenance of each party
SS# of petitioner, respondent, each child, &
relief to be granted
3. Children immediately subject to J of Ct, unless abuse proceedings in other J
4. Actual possession does not give custody preference to a parent
5. Respondent shall be served w/in 30 days, answer shall set forth
SSN of all parties
arrangements as to the custody, support, maintenance of each party
relief sought

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6. Previous Defenses abolished: such as condonation, collusion, recrimination, insanity,


lapse of time, ect
7. Parenting Plan: must be submitted by P & R w/in 30 days and shall set forth
arrangements thought to be in best interests of the children
including but not limited to
1. schedule of custody, visitation, residential time
2. written plan regarding legal custody detailing decision rights and respon
3. how expenses will be paid including
8. If Plans differ, ct shall enter a temp order containing a parenting plan (this shall not
create a preference)
9. MO SC shall create guidelines for such
452.311: Petition Reqs
- summons issued, verified entry of appearance by R filed, or attorney files such on
behalf of R
452.312: Parties employers addresses and SSNs to be contained in certain pleadings, decrees
- petition, motion for modification, motion for support, responsive pleading, decree
dissolving a marriage, modifying such, order for support
452.314: Guardian for incapacitated person may file for dissolution or separation if ward is
victim of spousal abuse
452.315: Authorized Motions
1. in dissolution proceeding or proceeding for disposition of property either party may
move for temp maintenance, child support
2. either party may request the ct to issue an order after notice / hearing
1) Restraining any person from transferring, encumbering, ect property except
in regular course of business or for necessities
2) Enjoining a party from harassing, abusing, molesting or disturbing party, child
3) Excluding a party from the home if physical, emotional harm would otherwise
result
4) Establishing & ordering compliance and providing for support
3. Restraining order issued only if ct finds that irreparable injury would otherwise result
4. Answer may be filed w/in 10 days after service or as specified in restraining order
5. Ct may order temp injunction or restraining order as proper in circumstances
6. Restraining Order / Temp Injuction
1) does not prejudice rights of parties
2) may be revoked or modified prior to final judgment
3) terminates on final judgment, petition is voluntarily dismissed
7. Ct shall enter temp order of child support if clear and convincing evidence estab a
presumption of paternity
8. orders may be retroactive to the date of entry of original temp order

PROPERTY DISTRIBUTION

* property distribution v alimony


- property distribution is current and final
- alimony can be adjusted, must be extracted over time

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Title Rule System: Old system, not used today at least in original form, certain parts remain
- Property divided by who has title to (ownership of) it, spouses could title property
individually during marriage
- Other spouse could claim share of property if [using constructive trust]
a. express or implied promise
b. which caused her to transfer property to him relying on the promise
c. confidential relationship existed btw parties
d. other party has been unjustly enriched at their expense
generally, husband would get the vast majority of the property and alimony would be
awarded to wife
- alimony traditionally ended upon re-marriage

Saff: remedy of constructive trust may not be applied randomly to adjust general equities
btw spouses or as punitive measure to divvy up property

Community Property: 8 states


- property separate at marriage remains separate and ct will distribute to party who held
title before the marriage
- property acquired during marriage is immediately held by both parties regardless of
whose name is on title documentation
- states differ on appreciation of value of separate property during marriage
community property split 50/50

Equitable Distribution: MO; 42 states


- marital property divided equitably btw the two parties, separate property goes to the
party who held title before the marriage

3 Questions for Equitable Distribution:


1. what does equitable mean
- does not necessarily mean equal (see MO 452.330.1)
2. what is separate property / marital property
3. deferred compensation

Equitable:

452.330.
1. the court shall set apart to each spouse such spouse's nonmarital property and shall divide
the marital property and marital debts in such proportions as the court deems just after
considering all relevant factors including:

(1) The economic circumstances of each spouse at the time the division of property is to
become effective, including the desirability of awarding the family home or the right to
live therein for reasonable periods to the spouse having custody of any children;

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(2) The contribution of each spouse to the acquisition of the marital property, including
the contribution of a spouse as homemaker; [50/50 splits typical when 1 party is homemaker]

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

Michael:
property division should reflect the concept of marriage as a shared enterprise and,
should be utilized as a means of providing future support for econ dependant
spouse
Misconduct: the longer the marriage, the less an isolated event of misconduct will effect a
distribution
Financial Misconduct: all states permit dissolution ct to consider misconduct directly
affecting the amount of the property available for
allocution in dividing property
- awareness and acceptance of objectionable financial behavior (during the
marriage) may waive a partys right to have this considered
Need as a Factor:
- a common order defers sale of home while giving custodial spouse exclusive use of it
during the deferral period (cost of this deferral can be thought of as a form of child support)
Residual Effects of Title:
Fratangelo: record ownership of assets remains significant and the court must find that
equity requires a transfer of ownership from one party to another
(PA)
- need factors of equitable distribution (such as 452.330 above) to justify a 50/50
starting point
- In Community Property state: notions of transferring ownership arise only when one
does not divide equally
- Some common law states have established a presumption that property acquired during
marriage should be divided equally in absence of other equitable considerations
Homemaker provisions: add spouses contributions as homemaker to the list of factors the court
may consider in allocating property, some allow consideration
only to the extent they contributed to the acquisition,
preservation, and maintenance of marital property [see
452.330.1(2)]

Marital Property:

452.330. Marital Property:


2. For 452.300 to 452.415 only, "marital property" means all property acquired by either
spouse subsequent to the marriage except:

(1) Property acquired by gift, bequest, devise, or descent;

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* gift from one spouse to another is separate property

(2) Property acquired in exchange for property acquired prior to the marriage or in
exchange for property acquired by gift, bequest, devise, or descent;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid written agreement of the parties; and

(5) The increase in value of property acquired prior to the marriage or pursuant to
subdivisions (1) to (4) of this subsection, unless marital assets including labor, have
contributed to such increases and then only to the extent of such contributions.

3. All property acquired by either spouse subsequent to the marriage and prior to a decree of
legal separation or dissolution of marriage is presumed to be marital property regardless of
whether title is held individually or by the spouses in some form of co-ownership such as joint
tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption
of marital property is overcome by a showing that the property was acquired by a method listed
in subsection 2 of this section.

4. Property which would otherwise be nonmarital property shall not become marital property
solely because it may have become commingled with marital property.

5. [Distribution order is] final order not subject to modification orders intended to be
qualified domestic relations orders affecting pension, profit sharing and stock bonus plans
pursuant to the U.S. Internal Revenue Code shall be modifiable only for the purpose of
establishing or maintaining the order as a qualified domestic relations order or to revise or
conform its terms so as to effectuate the expressed intent of the* order.

6. A certified copy of any decree of court affecting title to real estate may be filed for record in
the office of the recorder of deeds of the county and state in which the real estate is situated by
the clerk of the court in which the decree was made.

When Does Marriage Begin / End for property purposes:


Beginning: marriage ceremony [see 452.330.3]
End: can be several times [MO: decree of separation / dissolution]
> some states allow a significant asset acquired during a premarital period of
cohabitation to be included in marital property

Notes:
Deferred Compensation as Marital Property:
- income earned during marriage is classified as marital property even though its receipt
is deferred until after divorce

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> cts often focus on whether the labor producing the gain was done during
marriage
> future income flows: 3 options to estimate
a. set shares now that spouse will obtain upon payment
b. reserve J for appropriate order later
c. immediate lump sum
Personal Injury / Workers Comp Awards:
- martial property to the extent they provide compensation for loss of marital asset
(loss of income during marriage, ect)
- pain & suffering damages usually separate property
Dividing Debts:
- take debt into account in valuing assets
- use offset when one spouse alone is liable on a marital debt
- generally, debts incurred during marriage are presumed to be marital debts
> it is only when debts support activities that will have ongoing benefits to one
spouse only (ex: ed loans) that the cts char as separate
Appreciating Separate Property During Marriage:
- any increase in value of separate property attributable to either spouses labor during
marriage is marital property
Appreciation of a Business: competing views
Van Camp: no community property component in incremental value where
entrepreneur spouse took compensation from the business during the
marriage which was reasonable in light of market stds for that kind
of work
Pereira: attributes an ordinary rate of return to separate property capital, and allocates
all return above this amount to spousal labor
Assets Acquired w/ Blend of marital / non-marital property:
2 ways to allocate:
a. according to relative proportions of contributions
b. characterize property as entirely marital or non-marital according to
characterization at moment of acquisition (inception rule)
> cts using inception rule often require marital estate to be reimbursed for
contributions from marital property
Bankruptcy:
- child / spousal support not dischargeable in B-ruptcy
B-ruptcy Reform Act: adds property transfers at divorce to list of debts not dischargeable,
others not dischargeable if incurred by debtor in course of divorce /
separation
Pensions:
nearly all states treat unvested pensions as marital property
2 options for such treatment
a. defer the pensions distribution until vesting
b. value of pension can be discounted to reflect risk of non-vesting and distributed
immediately
Deferred Payment:

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- ct can bifurcate the pension and require administrator to make monthly


payments directly to spouse, such payments beginning at the employees
earliest retirement eligibility date, even if the employee does not choose to retire
then
ERISA: assigns to an alternate payee the right to receive all or a portion of the benefits
payable to a participant in a covered pension plan if the order is a
Qualified Domestic Relations Order
Valuation of Pensions: apportionment btw marital and non-marital portions
Relative Value rule: takes total contributions during marriage combined w/
investment gains or losses and classifies this
total as marital property
Relative Time rule: assumes all years of labor contributed equally, classifies as
marital property the same proportion of the pension as
the martial years of labor bear to the total years of labor
Federal Pre-Emption:
Hisquierdo: RR pensions evidenced congressional intent to exclude spousal claims, CA
community property law pre-empted by federal pension law
Military Pay: USFSPA = disposable retired pay may be treated as marital

Earning Capacity / Professional Degree: dominant rule is that earning capacity is not property
OBrien: found that husbands degree earned during marriage was marital property
- had to assign a value to the degree so that value could be divided
- this case has been uniformly rejected by other Js (only NY uses this)

Alternatives to OBrien:
- consider greater earning power provided by license or degree in alimony
decisions / division of property
- reimbursement alimony: working spouses financial contributions to joint living
expenses and educational expenses less
becomes equitable award to supporting spouse
- ALI Principles:
arrangements under which one spouse supports the other through school
are often seen as separable from other spousal arrangements
equities favoring a remedy are particularly strong when the educated
spouse leaves the marriage w/ an advantage achieved w/ the
other spouses uncompensated assistance
compensation only available when divorce occurs reasonably soon after
completion of the education or training
Graham: (more typical result than OBrien)
professional degree is not property under CL definition of such, so you cant
divide it as such in marital dissolution (not subject to equitable
distribution unless specific statute allows this)

Goodwill of a Business:
most courts agree that Goodwill is divisible property for marriage dissolution purposes
Goodwill: is the expectation of continued public patronage

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Accounting Principles: value of goodwill is excess of a businesses market value over its
asset value

Hanson:
the reputation and skill of an individual entrepreneur is not a component of
Goodwill (whether he be a professional or businessman)
Goodwill = the value of the practice which exceeds its tangible assets and
which is the result of the tendency of clients / patients to return to and
recommend the practice irrespective of the individual petitioner
only acceptable evidence of Goodwill is evidence that other professionals are
willing to pay for such, market value should usually be used (buy / sell
agreement may be appropriate in certain cases)

* under the old title system, valuation of company didnt matter much b/c whoever held
title would get it
* equitable distribution makes such valuations important

Maintenance / Alimony: {model act: 366}

- alimony is rewarded relatively infrequently compared to the number of divorces (does go


disproportionately to women)
- Purpose of maintenance: maintenance of the more dependent spouse in an economic style close
to which the spouse had become accustomed to during the marriage
> helps level playing field btw spouses if property distribution cannot do so

Originally designed to
- recognize wifes efforts in creating a traditional household
- level playing field where title system hurt wives

Basically 2 Types of Maintenance:


1. Pension Maintenance: defined as long-term maintenance typically based on
services rendered over a long-term marriage
- long-term homemakers compensation / potentially maintenance for life
2. Rehabilitation Maintenance: defined as short-term maintenance which provides an
applicant an opportunity to obtain additional education or training so he/she can
get a job & support him/herself
- likely given to a young spouse in a short-term marriage

452.335. Maintenance order, findings required for--termination date, may be modified, when.

1. In a proceeding for non-retroactive invalidity, dissolution of marriage or legal separation, or a


proceeding for maintenance following dissolution of the marriage by a court which lacked

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personal jurisdiction over the absent spouse, the court may grant a maintenance order to either
spouse, but only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide
for his reasonable needs; and

(2) Is unable to support himself through appropriate employment or is the custodian of a


child whose condition or circumstances make it appropriate that the custodian not be
required to seek employment outside the home.

2. The maintenance order shall be in such amounts and for such periods of time as the court
deems just, and after considering all relevant factors including:

(1) The financial resources of the party seeking maintenance, including marital property
apportioned to him, and his ability to meet his needs independently, including the extent
to which a provision for support of a child living with the party includes a sum for that
party as custodian;

(2) The time necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment;

(3) The comparative earning capacity of each spouse;

(4) The standard of living established during the marriage;

(5) The obligations and assets, including the marital property apportioned to him and the
separate property of each party;

(6) The duration of the marriage;

(7) The age and the physical and emotional condition of the spouse seeking maintenance;

(8) The ability of the spouse from whom maintenance is sought to meet his needs while
meeting those of the spouse seeking maintenance;

(9) The conduct of the parties during the marriage; and


* today, fault is not a serious factor in most cases

(10) Any other relevant factors.

3. The maintenance order shall state if it is modifiable or non-modifiable. The court may order
maintenance which includes a termination date. Unless the maintenance order which includes a
termination date is non-modifiable, the court may order the maintenance decreased, increased,
terminated, extended, or otherwise modified based upon a substantial and continuing change of
circumstances which occurred prior to the termination date of the original order.

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Clapp v Clapp: Vermont


reasonable need refers to relative, not absolute need
means needs that are reasonable in light of the std of living during the marriage
permanent income equalization may wind up being punitive rather than compensatory
here, where income equalization was used to calculate appropriate maintenance award
(not variable over time), the award equalized income for an appropriate
period of time b/c one spouses post-marriage increases in income would not be
reflected in settlement

Marriage of Wilson:
- disabled spouse fights termination of support payments
not error to terminate support for wife where husband had supported her for 5 years
after a 6 year marriage (even though wife was disabled and incapable of
producing previous earning capacity)
* its a lot easier for a court to order pension type maintenance when payee was a
homemaker for 25 years than when the marriage is short, such as in this case
* where there is an injured spouse, ct more likely to extend maintenance if injury is result
of marriage (of payees conduct)

Rainwater:
abuse of discretion standard used to review maintenance, property distribution, child
support, ect (TC has wide discretion in these areas)
TC can award indefinite maintenance when it appears that financial independence is
unlikely
* b/c maintenance awards are modifiable, an award of maintenance until death or
remarriage does not lock long term maintenance irrefutably into place, it just
places the burden on the paying spouse to prove a later change in circumstances
sufficiently substantial to warrant shortening the duration of the period
initial characterization of award determines which party will have the burden of
persuasion at modification hearing

Notes:
- cases suggest that maintenance at the marital std of living is the goal of alimony and is
therefore reqd whenever the obligor can afford to provide it to a former spouse
unable to achieve such std on her own
- no state suggests that equality should be the goal of post-divorce support
- ct can issue order setting alimony award w/ termination date based on expectation that
reasonable diligence will allow the payee to be self supporting by then
> if payee has not achieved this but has exercised reasonable diligence, ct can
extend the award

Rose v Rose: Rescission of Short Term Marriage


in short marriages where there has been no significant commingling of assets, the TC
may treat the property division as a rescission (put the parties as closely as
possible in the position they would have occupied w/o the marriage)

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* Alaska allows pre-marital assets to be distributed in dissolution



MO statutes do not expressly provide for rescission, but factors of 452.335 can be used
to put parties back in status quo w/o any award of maintenance

Modification:
Generally: property distribution not modifiable, alimony is (must be specified in order in Missouri)
MO / Model Marriage Act Reqs: changed circumstances so substantial and continuing as
to make the terms unconscionable {cb 410}
- some states only req that mod petitioner prove that there has been a change in
circumstances justifying the mod
- parties may have tax incentive to treat periodic payments as alimony rather than
child support

Remarriage: generally terminates alimony payments [not always in MO]


Shaffer: where alimony substituted for property division, payments could
continue past remarriage
Remarriage ending in divorce: if rule is that maintenance terminates upon
remarriage, it cannot be revived
annulment of second marriage does not renew the maintenance order
either
- obligations terminated on account of recipients remarriage not revived if
remarriage is held void

452.370: Modification / Termination of Alimony / Support

1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any


judgment respecting maintenance or support may be modified only upon a showing of changed
circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding
for modification of any child support or maintenance judgment, the court, in determining
whether or not a substantial change in circumstances has occurred, shall consider
- all financial resources of both parties,
- including the extent to which the reasonable expenses of either party are, or should be,
shared by a spouse or other person with whom he or she cohabits, and
- the earning capacity of a party who is not employed.
If the application of the child support guidelines and criteria set forth in section 452.340 and
applicable supreme court rules to the financial circumstances of the parties would result in a
change of child support from the existing amount by twenty percent or more, a prima facie
showing has been made of a change of circumstances so substantial and continuing as to make
the present terms unreasonable, if the existing amount was based upon the presumed amount
pursuant to the child support guidelines.

2. When the party seeking modification has met the burden of proof set forth in subsection 1 of
this section, the child support shall be determined in conformity with criteria set forth in section
452.340 and applicable supreme court rules.

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3. Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to
pay future statutory maintenance is terminated upon the death of either party or the remarriage
of the party receiving maintenance.

4. Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the
support of a child are terminated by emancipation of the child. The parent entitled to receive
child support shall have the duty to notify the parent obligated to pay support of the child's
emancipation and failing to do so, the parent entitled to receive child support shall be liable to
the parent obligated to pay support for child support paid following emancipation of a minor
child, plus interest.
*****

6. The court shall have continuing personal jurisdiction over both the obligee and the obligor of
a court order for child support or maintenance for the purpose of modifying such order.

8. Notwithstanding any provision of this section which requires a showing of substantial and
continuing change in circumstances, in a IV-D case filed pursuant to this section by the division
of child support enforcement as provided in section 454.400, RSMo, the court shall modify a
support order in accordance with the guidelines and criteria set forth in supreme court rule 88.01
and any regulations there-under if the amount in the current order differs from the amount which
would be ordered in accordance with such guidelines or regulations.

* if order is not modifiable, none of this section really matters

Melletz: cohabitation and alimony


apart from the economic impact upon either need or ability to pay, the payor spouse
may not control the social activities of the payee through loss / suspension of
alimony (this is against public policy)
here separation agreement providing for loss of alimony upon cohabitation is found to
be unenforceable

Notes: Cohabitation
- traditional rule: obligees cohabitation can be a basis for termination of alimony,
regardless of its financial impact
- recent trend: obligees cohabitation relevant only insofar as it affects her need and thus
financial eligibility for the award
- MO: in considering whether to terminate / modify alimony based on cohabitation
- economic impact of cohabitation, whether econ burdens lessened on obligee
- whether some expenses are or should be contributed by cohabiting 3rd party
- what type of maintenance: rehabilitative, or pension type

Notes: Economic Changes


- increase in alimony generally cant be grounded solely on an increase in obligors
income

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Exception: where original award was set too low b/c of temp inability to pay, and
the obligors increased income allows mod to where it should
have originally been
- children are entitled to share in post-marital prosperity of their parents
Retirement:
- typical retirement age: alimony may be reduced
- early retirement: question is more difficult
Inflation: some states req that alimony or child support include alimony adjustments for
changes in cost of living

Notes: Fault and Alimony


3 possible ways to consider fault in alimony situations
1. eligibility req (claimant must prove spouses fault)
2. bar (disqualifying claimant w/ fault)
3. factor affecting amount [MO]
* all states that consider fault treat it as a factor, none still treat it as an
eligibility req
- some states prohibit using fault as a basis for consideration [not MO]
* the claim that no-fault divorce adversely affects divorced women is unproven at best

CHILD SUPPORT

Right of the Child: child support is a right of the child, not a right of the parent
general rule: parent may not bargain away by agreement the childs right to support
(or portion thereof)
> parent generally may not waive the childs support right

Duty:
- not based on obligors consent to sexual relations or intent to conceive a child
an individual who was statutorily raped was not released from child support
obligation based on the nature of the conception
man who was tricked into having unprotected sex was not released on that basis
from support obligations
Beginning / Duration of Obligation
- obligation begins when child is born
- some courts use estoppel / laches doctrines when custodial parent waits a long
time before bringing suit (problem: the right is the childs, not the parents)
- for as long as there was an intact marital household, most cts will not grant
retroactive order for that period
- at the very least, parents must support children until age of majority (18 in most Js)
many states statutorily extend support beyond 18
- disabled children (at least if crippling occurs during minority) are an exception to
ending child support at age of majority
- some courts today specifically authorize award of post majority parental support for
post-secondary education

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ALI: support for life opportunities ct must decide whether parent would provide
the opportunity if child were residing w/ that parent (if no indicia, parent
assumed to do what similarly situated parent w/ similar background
would do)
Termination of Duty Before Majority
- many states say that obligation is terminated on obligors death b/c one can disinherit
children if he wishes
- at CL, emancipation, marriage, entry into military terminated or suspended the parental
support obligation
- Adoption: switches support obligation to adoptive parent from natural parent
immediately upon finalization of adoption (payments in arrears are
still responsibility of natural parent)
Age of Majority: used to be almost universally 21; however, when fed voting age was
lowered to 18, most states lowered age of majority to 18

Step Children:
- step relationship itself imposed no support obligation at CL (even while living in same house)
- no support can be ordered at divorce or separation
Miller: estopped divorcing step parent from denying a post divorce obligation to support
step children when D tore up checks from natural father and supported
children himself
MO Step Parent Support Statute: as long as child is living in same household as step
parent, such step parent is obligated to support
that child as if it was his natural child
- step parent here has action for recovery of such funds from the non-resident
natural parent of the child
Grandparents: legal stranger to the child, somewhat like a step parent
- CL: not obligation to support grandchildren
- if children are living w/ grandparents, gps have supported child / held out as their child,
court may find estoppel grounds for support
MO GP Support Statute: if child is born to 2 parents under 18, GPs have obligation to
support child until both parents reach the age of 18
Guardianship: alone, w/o support agreement, does not create a support obligation
Visitation and Support:
- most states treat child support and visitation as independent obligations, one parent
cannot defend a failure to pay support or allow visitation w/ evidence that the
other parent failed to comply w/ court order (ct may link obligations, however)

Support of Parents by children?


- no CL obligation of children to support parents unless familial responsibility statute
imposes it

Some Basics:
1. - during an intact marriage, courts do not look at amount for support to children unless it
falls low enough to be considered neglect / abuse

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- divorce is the opposite: child support is on the table, separation agreement is persuasive
but not binding on the court (court has last word on visitation, custody, and
support)
2. child support is a legal obligation that rests on both parents
3. generally, families w/ one child can expect to spend 30% of their total expenditures on the
child, two children raises the percentage to 45%, three to 50%

Guidelines:
1988 Federal Congressional Statute:
- all states had to enact mandatory presumptive guidelines for child support awards (in
order to continue receiving federal funding)
ct could deviate only if specifically found to be unjust in particular case
guidelines must be adjusted every four years
guidelines must define income
3 types of Guidelines:
1. Percentage of Obligor Model [15 states]
- only depends on income of non-resident obligor
- assumes custodial parent will pay what is necessary
2. Income Shares Model [MO; 32 states]
- looks at income of both parents to determine obligations
3. Melson Formula [rare]
- takes net income of obligor parent, provides for allowance that parent needs to
live on, uses remaining income to determine child support
Income, what constitutes it:
- most states [MO] start w/ gross income and then adjust
- in some states, % of income obligor must pay applies across the board (no progression
of percentage)

452.340. Child Support

1. In a proceeding for dissolution of marriage, legal separation or child support, the court may
order either or both parents owing a duty of support to a child of the marriage to pay an amount
reasonable or necessary for the support of the child, including an award retroactive to the date of
filing the petition, without regard to marital misconduct, after considering all relevant factors
including:

(1) The financial needs and resources of the child;


(2) The financial resources and needs of the parents;
(3) The standard of living the child would have enjoyed had the marriage not been
dissolved;
(4) The physical and emotional condition of the child, and the child's educational needs;
(5) The child's physical and legal custody arrangements, including the amount of time the
child spends with each parent and the reasonable expenses associated with the
custody or visitation arrangements; and
(6) The reasonable work-related child care expenses of each parent.

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2. Abatement of Child Support during certain periods of physical custody (below, under child support mod)

3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so
provides, the obligation of a parent to make child support payments shall terminate when the
child:

(1) Dies;
(2) Marries;
(3) Enters active duty in the military; (West Point student held to be emancipated)
(4) Becomes self-supporting, provided that the custodial parent has relinquished the child
from parental control by express or implied consent;
(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply;
or
(6) Reaches age twenty-two, unless the provisions of the child support order specifically
extend the parental support order past the child's twenty-second birthday for reasons
provided by subsection 4 of this section.

* at CL, parent could use disobedience of the child of as a reason for terminating support

4. Mentally Disabled Child:


If the child is physically or mentally incapacitated from supporting himself and insolvent and
unmarried, the court may extend the parental support obligation past the child's eighteenth
birthday. [CL law obligation to support disabled child means that if divorce occurs after child reaches majority, court can enter a support order for such child - at
least if child was disabled prior to age of majority]

5. Child in High School:


If when a child reaches age eighteen, the child is enrolled in and attending a secondary school
program of instruction, the parental support obligation shall continue, if the child continues to
attend and progresses toward completion of said program, until the child completes such
program or reaches age twenty-one, whichever first occurs.

Child in College:
If the child is enrolled in an institution of vocational or higher education not later than October
first following graduation from a secondary school or completion of a graduation equivalence
degree program and so long as the child enrolls for and completes at least twelve hours of credit
each semester, not including the summer semester, at an institution of vocational or higher
education and achieves grades sufficient to reenroll at such institution, the parental support
obligation shall continue until the child completes his or her education, or until the child reaches
the age of twenty-two, whichever first occurs. To remain eligible for such continued parental
support, at the beginning of each semester the child shall submit to each parent a transcript or
similar official document provided by the institution of vocational or higher education which
includes the courses the child is enrolled in and has completed for each term, the grades and
credits received for each such course, and an official document from the institution listing the
courses which the child is enrolled in for the upcoming term and the number of credits for each
such course. If the circumstances of the child manifestly dictate, the court may waive the
October first deadline for enrollment required by this subsection. If the child has pursued a path

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of continuous attendance and has demonstrated evidence of a plan to continue to do so, the court
may enter a judgment abating support for a period of up to five months for any semester in which
the child completes at least six but less than twelve credit hours; however, such five-month
period of abatement shall only be granted one time for each child. If the child is enrolled in such
an institution, the child or parent obligated to pay support may petition the court to amend the
order to direct the obligated parent to make the payments directly to the child. As used in this
section, an "institution of vocational education" means any postsecondary training or schooling
for which the student is assessed a fee and attends classes regularly. "Higher education" means
any junior college, community college, college, or university at which the child attends classes
regularly. A child who has been diagnosed with a learning disability, or whose physical disability
or diagnosed health problem limits the child's ability to carry the number of credit hours
prescribed in this subsection, shall remain eligible for child support so long as such child is
enrolled in and attending an institution of vocational or higher education, and the child continues
to meet the other requirements of this subsection. A child who is employed at least fifteen hours
per week during the semester may take as few as nine credit hours per semester and remain
eligible for child support so long as all other requirements of this subsection are complied with.

6. The court shall consider ordering a parent to waive the right to claim the tax dependency
exemption for a child enrolled in an institution of vocational or higher education in favor of the
other parent if the application of state and federal tax laws and eligibility for financial aid will
make an award of the exemption to the other parent appropriate.

7. The general assembly finds and declares that it is the public policy of this state that frequent,
continuing and meaningful contact with both parents after the parents have separated or
dissolved their marriage is in the best interest of the child except for cases where the court
specifically finds that such contact is not in the best interest of the child. In order to effectuate
this public policy, a court with jurisdiction shall enforce visitation, custody and child support
orders in the same manner.

A court with jurisdiction may abate, in whole or in part, any past or future obligation of support
and may transfer the physical and legal or physical or legal custody of one or more children if it
finds that a parent has, without good cause, failed to provide visitation or physical and legal or
physical or legal custody to the other parent pursuant to the terms of a judgment of dissolution,
legal separation or modifications thereof. The court shall also award, if requested and for good
cause shown, reasonable expenses, attorney's fees and court costs incurred by the prevailing
party.

8. The Missouri supreme court shall [produce guidelines]

9. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the
award of child support, that the amount of the award which would result from the application of
the guidelines established pursuant to subsection 8 of this section is the correct amount of child
support to be awarded. A written finding or specific finding on the record in a judicial or
administrative proceeding that the application of the guidelines would be unjust or inappropriate
in a particular case, after considering all relevant factors, including the factors set out in
subsection 1 of this section, is required if requested by a party and shall be sufficient to rebut the

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presumption in the case. The written finding or specific finding on the record shall detail the
specific relevant factors that required a deviation from the application of the guidelines.

10. Pursuant to this or any other chapter, when a court determines the amount owed by a parent
for support provided to a child by another person, other than a parent, prior to the date of filing
of a petition requesting support, or when the director of the division of child support enforcement
establishes the amount of state debt due pursuant to subdivision (2) of subsection 1 of section
454.465, RSMo, the court or director shall use the guidelines established pursuant to subsection
8 of this section. The amount of child support resulting from the application of the guidelines
shall be applied retroactively for a period prior to the establishment of a support order and the
length of the period of retroactivity shall be left to the discretion of the court or director. There
shall be a rebuttable presumption that the amount resulting from application of the guidelines
under subsection 8 of this section constitutes the amount owed by the parent for the period prior
to the date of the filing of the petition for support or the period for which state debt is being
established. In applying the guidelines to determine a retroactive support amount, when
information as to average monthly income is available, the court or director may use the average
monthly income of the noncustodial parent, as averaged over the period of retroactivity, in
determining the amount of presumed child support owed for the period of retroactivity. The court
or director may enter a different amount in a particular case upon finding, after consideration of
all relevant factors, including the factors set out in subsection 1 of this section, that there is
sufficient cause to rebut the presumed amount.

11. The obligation of a parent to make child support payments may be terminated as follows:

(1) Provided that the child support order contains the child's date of birth, the obligation
shall be deemed terminated without further judicial or administrative process when the
child reaches age twenty-two if the child support order does not specifically require
payment of child support beyond age twenty-two for reasons provided by subsection 4 of
this section;

(2) The obligation shall be deemed terminated without further judicial or administrative
process when the parent receiving child support furnishes a sworn statement or affidavit
notifying the obligor parent of the child's emancipation in accordance with the
requirements of subsection 4 of section 452.370, and a copy of such sworn statement or
affidavit is filed with the court which entered the order establishing the child support
obligation, or the division of child support enforcement;

(3) The obligation shall be deemed terminated without further judicial or administrative
process when the parent paying child support files a sworn statement or affidavit with the
court which entered the order establishing the child support obligation, or the division of
child support enforcement, stating that the child is emancipated and reciting the factual
basis for such statement; which statement or affidavit is served by the court or division on
the child support obligee; and which is either acknowledged and affirmed by the child
support obligee in writing, or which is not responded to in writing within thirty days of
receipt by the child support obligee;

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(4) The obligation shall be terminated as provided by this subdivision by the court which
entered the order establishing the child support obligation, or the division of child support
enforcement, when the parent paying child support files a sworn statement or affidavit
with the court which entered the order establishing the child support obligation, or the
division of child support enforcement, stating that the child is emancipated and reciting
the factual basis for such statement; and which statement or affidavit is served by the
court or division on the child support obligee. If the obligee denies the statement or
affidavit, the court or division shall thereupon treat the sworn statement or affidavit as a
motion to modify the support obligation pursuant to section 452.370 or section 454.496,
RSMo, and shall proceed to hear and adjudicate such motion as provided by law;
provided that the court may require the payment of a deposit as security for court costs
and any accrued court costs, as provided by law, in relation to such motion to modify.

12. The court may enter a judgment terminating child support pursuant to subdivisions (1) to (3)
of subsection 11 of this section without necessity of a court appearance by either party. The clerk
of the court shall mail a copy of a judgment terminating child support entered pursuant to
subsection 11 of this section on both the obligor and obligee parents. The supreme court may
promulgate uniform forms for sworn statements and affidavits to terminate orders of child
support obligations for use pursuant to subsection 11 of this section and subsection 4 of section
452.370.

Ross:
- parent may agree in separation agreement to provide more support than the law reqs
* generally, parents cannot agree to reduce child support

MO Child Support Guidelines:


- an Income Shares Model: figures gross income (not necessarily same as tax code) w/
adjustments, then proportions obligation by ratio of each
parents earnings
- Income defined expansively = financial benefit or money received by parent that could
have a positive impact on parents ability to
support child
in-kind benefits / lottery earnings / inheritance, etc have been found includable
- chart gives presumed child support amount

Dennis: Imputed Income


* MO Guidelines: if obligor is unemployed or under employed, gross income may include
imputed income, factors from supp 121
In determining whether to include imputed income, court shall consider relevant factors
including
1. parents probable earnings based on previous three years or other time
2. parents occupational qualifications
3. parents employment potential
4. available job opportunities in the community

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5. whether the parent is a custodian of child whose condition makes it appropriate


for parent to not seek employment outside home

- TC says: obligor is free to work as he wishes, but will have imputed income counted in
figuring child support obligation
> ct entered seek work order: send out 20 resumes per month

Imputed Income Issue: does underemployment come from good faith reasons, or from parents
attempt to shirk child support obligation?

Specific Issues Regarding Imputed Income:


Further Education of Obligor:
- where wife went back to school and then parties divorce before husband could do so, ct
found that husband was merely acting pursuant to agreement and could go back
to school although it reduces ability to pay support
- where carpenter wanted to go to art school after divorce, ct found lack of good faith
Loss of Job:
- where L lost job but was trying diligently to attain another one, ct did not impute
income, another case w/o such diligence produced imputed income
- loss thru fault of parent: where parent lost job b/c of embezzlement of funds, ct imputed
income
Voluntary Retirement:
- imputed income often imposed (especially if retiree is rather young)
Variance from Guidelines:

Donahue: SD deviation from guidelines


there may be no deviation from the guidelines presumptive amount w/o an entry of
specific findings regarding the five listed factors for deviation (SD statute reqd
written findings not reqd in MO [MO just reqs consideration of its factors])
parents responsibility to support his children is paramount, other debts are secondary

Note:
- many states identify an agreement as a circumstance which is appropriate to consider in
determining whether to vary from the guideline level of support
- Betty: obligations to prior children justified variance only where existing order reqs
support of those children

State v Hall: MN obligors income off chart on high end (MNs salary increments only went up
to 4k/mo and this provided for child support of 1k/mo)
the intent of the std of living factor is that a child is entitled to enjoy the benefits of the
incomes of both parents
while the mothers needs may be considered, it would be inappropriate to use a child
support obligation to upgrade her std of living
here deviation was not warranted where one party was much wealthier than the other b/c
the std of living factor addressed this disparity (1k / month awarded according to
guidelines although obligor was rich)

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High Income Obligors:


- some states have relatively low max guideline amount and make the obligors high income
a factor upon which an upward deviation may be based
- in Georgia, respondent in same facts as Hall would have to argue that 20k per month was
too high
ALI Principles 3.07:
1. unless presumption is rebutted, the amount determined by formula [guidelines] should
be incorporated into the award
2. rebuttable only by proof that, taking into account best interests of child, the amount
determined would be unjust or inappropriate for 1/more of following reasons:
a. extraordinarily high income of obligor causing amount determined to exceed
the amount necessary to insure that child enjoys std of living adequate
and not grossly inferior to that of either parent and childs life
opportunities are adequately secured
Low Income Obligors:
- some states have mandatory min monthly awards, usually btw $20 and $50
- some say if you have no income / income only from welfare, etc you dont have to pay
child support
-MO: excludes from gross income welfare, food stamps, Medicare, etc but reqs $50/mo
regardless of income (can be adjusted downward w/ deviation)
many cts will enter order of $5/mo just to remind obligor that they have a child and a
duty to support their child

Emerson: ct refused to consider the fact that the child received SS benefits based on the childs
disability in order to reduce the award

Modification of Support Awards:

Traditional Rule: permitted modification upon material change in circumstances,


sometimes reqg change to be substantial and continuing
Model Marriage / Divorce Act: change must be so substantial as to make the original
terms unconscionable

Bradley Amendment: ct may not retroactively modify a child support award when it
becomes due, its a vested right and cannot be modified
Exceptions: Does not prevent upward modification
Custodial parents & new spouse can trade arrearages for other
parents release of parental rights (so other parents spouse can adopt)

Fed rules allow state to provide for modification due to inconsistency btw original award
and guideline amount under the current facts w/o inquiry into the childs needs
> states permitted to establish reasonable, quantitative stds by which to determine if there
is inconsistency

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452.370: Modification of Child Support (same as for alimony, ect)

1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any


judgment respecting maintenance or support may be modified only upon a showing of
changed circumstances so substantial and continuing as to make the terms unreasonable. In
a proceeding for modification of any child support or maintenance judgment, the court, in
determining whether or not a substantial change in circumstances has occurred, shall
consider
- all financial resources of both parties,
- including the extent to which the reasonable expenses of either party are, or should be,
shared by a spouse or other person with whom he or she cohabits, and
- the earning capacity of a party who is not employed.
If the application of the child support guidelines and criteria set forth in section 452.340 and
applicable supreme court rules to the financial circumstances of the parties would result in a
change of child support from the existing amount by twenty percent or more, a prima facie
showing has been made of a change of circumstances so substantial and continuing as to
make the present terms unreasonable, if the existing amount was based upon the presumed
amount pursuant to the child support guidelines.

Serial Families:
- Remarriage: of custodial parent usually not a basis for modifying obligors obligation
reality of new spouses resources available to children may cause some cts to
consider this and reduce obligation
- Second Family: some states use fairly rigid first in time, first in right rule and reject
downward modification based on demands of a second family;
others provide for consideration of obligations to later children

Retroactive Modification:
- Fed bars retroactive modification (Bradley Amendment): reduces obligors incentive to
underpay and allow obligee to take him to court where he would seek
modification downward
this can create some inequities if obligor makes non-conforming payments
(adequate, but thru other than ordered channels)
some cts use doctrine of equity to estop obligee from seeking arrearages in some
situations (where support was really given but not technically recognized)

452.340 Abatement Period

2. The obligation of the parent ordered to make support payments shall abate, in whole or in
part, for such periods of time in excess of thirty consecutive days that the other parent has
voluntarily relinquished physical custody of a child to the parent ordered to pay child
support, notwithstanding any periods of visitation or temporary physical and legal or
physical or legal custody pursuant to a judgment of dissolution or legal separation or any

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modification thereof. In a IV-D case, the division of child support enforcement may
determine the amount of the abatement pursuant to this subsection for any child support order
and shall record the amount of abatement in the automated child support system record
established pursuant to chapter 454, RSMo. If the case is not a IV-D case and upon court
order, the circuit clerk shall record the amount of abatement in the automated child support
system record established in chapter 454, RSMo.

Periodic Review of IV-D orders (Fed): 3 options, review every 3 years


1. recalculation w/ current econ data and guidelines
2. cost of living adjustment
3. automated system based on tax data

Support Enforcement:

Traditional problems: most of non-enforcement of obligation is due to fact that no support


order has been obtained
- there is a link btw contact w/ children and payment of child support
- 2001: only 44% of support owed was paid (survey of obligees)

Federal Laws:
Family Support Act of 1974: created IV-D agencies
- congress gave $ to states for setting up agencies to enforce support orders
IV-D programs:
states must provide child support services to all cases where custodial parents
receives AFDC or Medicaid
1994: amended so any parent can use services (non-welfare families may be
reqd to pay for services)
Agencies Activities:
help parent obtain support order where parent may be entitled to such
help locate obligor, establish paternity, enforce orders
IV-D agencies have significantly increased the percentage of obligation collected

Welfare Reform Act of 1996: contained many child support reforms


- tracking of obligors from state to state
- permitted states to privatize child support enforcement (not successful in practice)

Child Support Recovery Act: criminalized failure to pay support for child in another state
- fed crime to travel interstate w/ intent of avoiding child support order
- rebuttable presumption that parent owing child support is able to pay it

Creative State Remedies:


- Booting of Car Wheels
- Wanted Posters: pretty effective

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- Interception of IRS refunds

Collection Remedies:

Income Withholding: has become most effective tool for enforcement of support awards
- states must make income w/holding procedures available for interstate collection of
support
- income is any form of periodic payment
- Consumer Credit Protection Act: limits the amount which can be w/held from an
employees pay check, states may enact lower
ceilings
Civil Contempt: imprisonment is still available in difficult cases
Hicks: burden of proof on obligor to show inability to pay, civil contempt proper remedy
for failure to pay child support as long as there is an outstanding court
order
Incarceration: credible threat of jail improves payment record
- unskilled workers / men w/ employment and alcohol problems overrepresented in jail
for support reasons
Criminal Prosecution:
Uniform Desertion / Nonsupport Act: parent who deserts / willfully neglects to provide
support for child under 16 is guilty of crime
- criminal only if child left w/o basic necessities
- most courts req mens rea of at least recklessness
- many statutes authorize suspended / intermittence sentence to allow Ds to
maintain jobs
- each failure to pay monthly support is separate offense
Additional Civil Remedies: 1984 Child Support Enforcement Amendments req states to
provide for income tax refund offsets, security and liens
Due process defenses to intercept: challenging J of ct, determination that arrearages exist,
the amount owed
Revocation of State Licenses: 30 states have programs involving the revocation of drivers or
professional licenses
Termination of Parental Rights: ultimate sanction, abandonment is common ground for this
and can be showed by failure to support
- this option relieves the deadbeat of the obligation to pay but makes it possible for
another to adopt child

Defenses to Actions to Collect Arrearages:

Prior Payment: support must be rendered in accordance w/ orders provisions, non-


conforming payments do not count
- equitable considerations may require crediting such payments where custodial parent
consented to payment method
Custodial Changes: non custodial parent generally not entitled to support payment deduction
for visitation periods [MO has abatement periods, see 452.340
above]

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Delay: laches; courts are not very accepting of such claims, often dismissing b/c of lack of
prejudice due to delay
Estoppel: D may claim custodial parent is estopped from seeking to enforce support order
(parental agreement or wrongful hiding of the child)
Nature of Obligors Resources: Ds sometimes argue that resources are privileged against the
particular enforcement device
- cts often find that such benefits are for the benefit of the family as well as the
obligee and disallow preemption
Bankruptcy: code precludes debtor from discharging debts to spouse, former spouse, child of
debtor for alimony, maintenance, support

MO Statutes:
568.040: Criminal Non-support
1. crime of non-support if he knowingly fails to provide (w/o good cause) adequate support
for spouse / child or step child for which he is obligated to provide and is not
emancipated 2. Definitions:
(1) child / adoptive child / child determined to have parent-child relationship w/ D
(2) good cause = any substantial reason why D is unable to provide; does not exist if D
purposely maintains his inability to support
(3) support = food, clothing, lodging, medical attention
(4) not failure to provide medical attention if non-medical remedial treatment permitted
by MO is provided
* D has burden of proof on 2 & 4
6. Persons shall be prosecuted in county in which child resided or D resided during period

208.040: Temp Assistance Benefits


1. shall be granted on behalf of dependent child
(1) under 18, or 19 and in school if expecting to complete school by 19
(2) has been deprived of support / care by death, absence, incapacity of parent and is
living w/ [close relative] in place maintained by such relatives as childs home
and financial aid is necessary to save child from neglect
(3) is not receiving supplemental aid
(4) resident of MO
2. Applicant for aid shall
(1) furnish SS #
(2) assign to division of fam services rights to support (application shall constitute this)
(3) cooperate w/ fam services in estab paternity / obtaining support order (unless contrary
to best interests of child / caretaker)
(4) assist state in pursuing 3rd party liable for care / services, unless good cause
(5) participate in any program designed to reduce dependence on welfare, if requested
3. Division shall req that minor child reside in place maintained by parent / legal guardian or
adult relative or adult supervised supportive arrangement, except
(1) no parent / guardian or whereabouts unknown
(2) physical health, safety would be jeopardized
(3) individual has lived apart for at least one year
(4) victim of abuse and reason to suspect finding has been made

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***

521.010: Attachment When


- P may have attachment against property of D when
D is not resident, conceals himself / has absconded to avoid service, is about to remove
property w/ intent to defraud, is about to leave w/ intent to change domicile, has
fraudulently conveyed, concealed, disposed of, or assigned property (or
is about to) to hinder creditors

452.344: Bond for Support obligations


- ct may req that obligor provide sufficient security, bond, other guarantee
- upon default, ct shall enter judgment on the bond

452.350: Withholding of Income


1. Order for Child Support or Maintenance shall include provision notifying obligor that,
upon application, Obligors income shall be subject to w/holding w/o further notice if
obligor becomes delinquent in amount equal to 1 months total support obligation,
order shall also notify that
(1) the w/holding shall be for the current months support / maintenance, and
(2) w/holding shall include additional amount equal to 50% of the monthly obligation
which shall continue until the delinquency is paid in full

2. W/holding initiated on effective date of order unless


(1) party demonstrates good cause not to req immediate w/holding (finding must be based
on best interests of child and proof of prior timely payments) or
(2) written agreement is reached
if income not w/held on date of order, w/held when delinquent by one months amount
3. Obligated party may execute voluntary assignment of income which shall be filed w/ court
and will take effect after service on employer or other payor
4. Notice to employer shall direct shall contain
Obligor cant obtain relief from w/holding by paying overdue support, only basis for
contesting w/holding is mistake of fact (error in amount of arrearages or identity of
obligor)
5. Employer may charge obligor six bucks for w/holding services
6. Employer shall notify court upon termination of obligors employment
***
9. Employer shall not discharge, discipline, refuse to hire based on w/holding notice
10. W/holding may be amended for good cause
11. Ct may terminate for good cause, except not for sole reason that obligor paid past due $
12. W/holding shall have priority over other legal processes except that processes pursuant to
this or 454.505 shall run concurrently w/ it
14. where rights have been assigned to state, director of child support enforcement may
amend / terminate w/holding order w/o ct action
15. Income = any periodic payment due to individual

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506.500: Long Arm Jurisdiction


- Person submits to J of MO as to any COA arising from
sexual intercourse w/ mother on or near probable conception of child
living in lawful marriage in MO if the other party now lives in state or 3rd party resident
of MO has provided support to child / spouse of marriage

452.365: De-couples support and visitation


- cannot deny visitation to attain support or vice versa (remedy is ct action not self-help)

CHILD CUSTODY

- social scientists agree that exposure to conflict btw parents is harmful to children, but still find
that maintaining relationships w/ both parents is important to childs adjustment

- behavioral problems due to strain of divorce: aggressiveness, non-compliance, acting out


> cognitive immaturity may prove beneficial b/c child may not remember much about
divorce / strained relations
> older children may be more troubled by the experience: premature detachment from
families, ect
boys show higher rate of behaviors disorders, school aged children adapt better in custody
of a parent of same gender
- children who were exposed to serious conflict in parents marriage were found to be better off
when the conflict was reduced by divorce
where there was little conflict, children experienced negative consequences due to divorce
History:
Roman Law: children were property of father, could be killed at wish of father
English: similar except could not kill them
Today: custody statutes are gender neutral
Best Interests of Child Standard:
- Tender Years Presumption: small children better off w/ mother
- mothers still get custody about 90% of the time
Discretion: ct resolving custody dispute is relatively free to consider anything that seems relevant
under the circumstances to the childs interests and to weigh the evidence as the
judge sees fit
Custody Disputes:
- person oriented disputes: involve ct choosing better person for child to live with
- do not turn entirely on fact finding, involves predictions about the future
- ct has a lot of discretion in custody decisions
std of review is abuse of discretion
- children are not parties to a divorce proceeding
MO: if claim of abuse, ct must appoint guardian ad litem for child
- custody often used as a bargaining chip (by parents that dont really want it)
- adjudication is rare: 97% are resolved on separation agreement
> terms of separation agreement binding on court except for child custody agreement

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Custody Types:
Physical: actual physical custody of child
Legal: right to make important decisions for the child
Joint: parties share custody (can be joint physical or joint legal)
Sole: one party gets custody (can be sole physical or legal)
3rd party custody: awarded to legal stranger
> only awarded where parents are unfit: constitutional right to raise child as you see fit
> MO statutes goes to edge of constitutionality (welfare of child appears to be basis for
3rd party custody w/o finding that parents are unfit)

{model act: cb 566}

452.375. Custody

1. Definitions unless the context clearly indicates otherwise:

(1) "Custody" means joint legal custody, sole legal custody, joint physical custody or sole
physical custody or any combination thereof;
(2) "Joint legal custody" means that the parents share the decision-making rights,
responsibilities, and authority relating to the health, education and welfare of the child, and,
unless allocated, apportioned, or decreed, the parents shall confer with one another in the
exercise of decision-making rights, responsibilities, and authority;
(3) "Joint physical custody" means an order awarding each of the parents significant, but not
necessarily equal, periods of time during which a child resides with or is under the care and
supervision of each of the parents. Joint physical custody shall be shared by the parents in
such a way as to assure the child of frequent, continuing and meaningful contact with both
parents;
(4) "Third-party custody" means a third party designated as a legal and physical custodian
pursuant to subdivision (5) of subsection 5 of this section.

2. The court shall determine custody in accordance with the best interests of the child. The court
shall consider all relevant factors including:

(1) The wishes of the child's parents as to custody and the proposed parenting plan submitted
by both parties; [parenting plan is not the final word, just a consideration]

(2) The needs of the child for a frequent, continuing and meaningful relationship with both
parents and the ability and willingness of parents to actively perform their functions as
mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other
person who may significantly affect the child's best interests;

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(4) Which parent is more likely to allow the child frequent, continuing and meaningful
contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of
abuse of any individuals involved. If the court finds that a pattern of domestic violence has
occurred, and, if the court also finds that awarding custody to the abusive parent is in the best
interest of the child, then the court shall enter written findings of fact and conclusions of law.
Custody and visitation rights shall be ordered in a manner that best protects the child and
any other child or children for whom the parent has custodial or visitation rights, and the
parent or other family or household member who is the victim of domestic violence from any
further harm;

(7) The intention of either parent to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.

The fact that a parent sends his or her child or children to a home school, as defined in section
167.031, RSMo, shall not be the sole factor that a court considers in determining custody of such
child or children.

these factors not really that much help to judges

3. Child Abuse / Sexual Abuse


(1) In any court proceedings relating to custody of a child, the court shall not award custody or
unsupervised visitation of a child to a parent if such parent or any person residing with such
parent has been found guilty of, or pled guilty to, any of the following offenses when a child was
the victim: *** [see supp 67]

4. The general assembly finds and declares that it is the public policy of this state that frequent,
continuing and meaningful contact with both parents after the parents have separated or
dissolved their marriage is in the best interest of the child, except for cases where the court
specifically finds that such contact is not in the best interest of the child, and that it is the public
policy of this state to encourage parents to participate in decisions affecting the health, education
and welfare of their children, and to resolve disputes involving their children amicably through
alternative dispute resolution. In order to effectuate these policies, the court shall determine the
custody arrangement which will best assure both parents participate in such decisions and have
frequent, continuing and meaningful contact with their children so long as it is in the best
interests of the child.

5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the
court shall consider each of the following as follows:

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(1) Joint physical and joint legal custody to both parents, which shall not be denied solely for
the reason that one parent opposes a joint physical and joint legal custody award. The
residence of one of the parents shall be designated as the address of the child for mailing and
educational purposes;

(2) Joint physical custody with one party granted sole legal custody. The residence of one of
the parents shall be designated as the address of the child for mailing and educational
purposes;

(3) Joint legal custody with one party granted sole physical custody;

(4) Sole custody to either parent; or

(5) Third-party custody or visitation:

(a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian,
or the welfare of the child requires, and it is in the best interests of the child, then
custody, temporary custody or visitation may be awarded to any other person or persons
deemed by the court to be suitable and able to provide an adequate and stable
environment for the child. Before the court awards custody, temporary custody or
visitation to a third person under this subdivision, the court shall make that person a party
to the action;

(b) Under the provisions of this subsection, any person may petition the court to intervene
as a party in interest at any time as provided by supreme court rule.

6. If the parties have not agreed to a custodial arrangement, or the court determines such
arrangement is not in the best interest of the child, the court shall include a written finding in the
judgment or order based on the public policy in subsection 4 of this section and each of the
factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific
relevant factors that made a particular arrangement in the best interest of the child. If a proposed
custodial arrangement is rejected by the court, the court shall include a written finding in the
judgment or order detailing the specific relevant factors resulting in the rejection of such
arrangement.

7. Upon a finding by the court that either parent has refused to exchange information with the
other parent, which shall include but not be limited to information concerning the health,
education and welfare of the child, the court shall order the parent to comply immediately and to
pay the prevailing party a sum equal to the prevailing party's cost associated with obtaining the
requested information, which shall include but not be limited to reasonable attorney's fees and
court costs.

8. As between the parents of a child, no preference may be given to either parent in the awarding
of custody because of that parent's age, sex, or financial status, nor because of the age or sex of
the child. [you can probably make decision based on these factors if you find that the best interests of the child lie there]

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9. Any judgment providing for custody shall include a specific written parenting plan setting
forth the terms of such parenting plan arrangements specified in subsection 7 of section 452.310.
Such plan may be a parenting plan submitted by the parties pursuant to section 452.310 or, in the
absence thereof, a plan determined by the court, but in all cases, the custody plan approved and
ordered by the court shall be in the court's discretion and shall be in the best interest of the child.

10. Unless a parent has been denied custody rights pursuant to this section or visitation rights
under section 452.400, both parents shall have access to records and information pertaining to a
minor child, including, but not limited to, medical, dental, and school records. If the parent
without custody has been granted restricted or supervised visitation because the court has found
that the parent with custody or any child has been the victim of domestic violence, as defined in
section 455.200, RSMo, by the parent without custody, the court may order that the reports and
records made available pursuant to this subsection not include the address of the parent with
custody or the child. Unless a parent has been denied custody rights pursuant to this section or
visitation rights under section 452.400, any judgment of dissolution or other applicable court
order shall specifically allow both parents access to such records and reports.

11. Except as otherwise precluded by state or federal law, if any individual, professional, public
or private institution or organization denies access or fails to provide or disclose any and all
records and information, including, but not limited to, past and present dental, medical and
school records pertaining to a minor child, to either parent upon the written request of such
parent, the court shall, upon its finding that the individual, professional, public or private
institution or organization denied such request without good cause, order that party to comply
immediately with such request and to pay to the prevailing party all costs incurred, including, but
not limited to, attorney's fees and court costs associated with obtaining the requested
information.
12. An award of joint custody does not preclude an award of child support pursuant to section
452.340 and applicable supreme court rules. The court shall consider the factors contained in
section 452.340 and applicable supreme court rules in determining an amount reasonable or
necessary for the support of the child.

13. If the court finds that domestic violence or abuse, as defined in sections 455.010 and
455.501, RSMo, has occurred, the court shall make specific findings of fact to show that the
custody or visitation arrangement ordered by the court best protects the child and the parent or
other family or household member who is the victim of domestic violence or abuse, as defined in
sections 455.010 and 455.501, RSMo, and any other children for whom such parent has custodial
or visitation rights from any further harm.

452.376: Non-custodial Parents rights to school progress reports (supp 70)


452.380: Temporary Custody (supp 74)
452.390: Investigation / Report on Custodial Arrangements (supp 75)
452.395: Proceedings in Closed Court when (supp 75)
452.405: Custodian to Determine Childs Upbringing (supp 81)
452.423: Appointment of Guardian Ad Litem (supp 84)

Leading Presumptions: (rebuttable)

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1. tender years presumption [not MO]


- for particularly young children, presumption that it was in the childs best interests to go
to the mother instead of the father (not in MO, see 452.375.8)
2. primary caretaker presumption [not MO]
- to provide needed continuity for children, in childs best interests to go to parent who
was primary caretaker during marriage or intact relationship
3 joint custody presumption [not MO]
- some Js have presumption that joint custody is in best interests of child
* MO has presumption that contact w/ both parents is in best interest of child but
does not presume joint custody

Burchard v Garay:
comparative income or econ advantage is not a permissible basis for a custody award
cts must not presume that a working mother is less satisfactory parent or less fully
committed to the care of her child

* some cts say favoring the parent who can provide home care for the child disadvantages
women since most mothers work after divorce and divorced men are more likely to remarry
spouses who are not employed outside the home
* some cts say that child of certain age should be w/ same sex parent for development reasons

Pusey: Utah
ct struck down tender yrs presumption as violating the state constitution
* abusive conduct toward a child will be central in custody decision, trend is toward a rebuttable
presumption against awarding custody to a parent who has engaged in domestic violence
- see RsMO 452.375.3 above
Characteristics / Behavior of Parents:

Parents Conduct as Basis for Custody Determination:


- alcohol / drug use by parent: comes in b/c has effect on child
- cohabitation outside of marriage: often considered, especially if homosexual
Mental Condition: cts try to carefully weigh how much the disorder will actually affect important
parenting functions, where disability seriously affects parents abilityt to care
for child, it will be considered

De Long: Gay / lesbian lifestyle of one parent is factor to be considered in custody (all such
parents have lost custody in MO)
- ct uses broad view of 452.375.2(3) to bring in such considerations, plus 452.375.2 says to
consider all relevant factors
sexual preference of parent can always be considered: if parents homosexual conduct is
shown to detrimentally affect the mental, physical, economic, or social well being of
the child, it is a proper consideration for the court in a custody proceeding
no conclusive presumptions, effect of homosexuality to be considered and resolved on
specific evidence at the trial

Palmore v Sidoti: Race

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private biases cannot be used as basis to award custody on a racial basis


unconstitutional to use future teasing of child due to household w/ white mother and black
father as basis to award custody to other parent (14th EP)

Religion:
- general rule under establishment clause: ct cannot decide based on religion
- religion may be a factor if it affects the best interests of the child

Leppert:
- mother belonged to religious sect that hated all non-members
* entanglement doctrine: ct will not make decision if they have to determine religious
doctrine
ct can consider religion if beliefs / actions under such is harmful to children
> harm must be clearly shown before such can become a determining factor
ct may act when there is reasonably likelihood of injury, dont have to wait until injury
occurs

Quiner: strictest test regarding harm from religious practice = reqs that actual harm from
religious practice be demonstrated
* some cts have allowed consideration of childs prior religious training in custody
decisions, based on childs religious needs

Alienation of other parent:


Renaud:
conduct by one parent that tends to alienate the childs affections from the other is so
against the childs welfare as to be grounds for denial of custody to or change
of custody from the parent guilty of such conduct
cts should be wary of over reliance on such otherwise significant consideration as the
childs emotional attachment to, or expressed preference for, the offending
parent
* important goal to produce meaningful relationships w/ both parents (see above for MO)

Preference of Child: factor under RsMO 452.375(2)8


- Some statutes (GA) make the preferences of older children virtually dispositive
- many cts evaluate the reasons for childs choice and discount it if based on illegitimate
concerns or if one parent has put undue pressure on the child
* states are not consistent on how much weight is to be placed on childs preference
> in camera interviews w/ child are common (see MO 452.385)

452.385: Childs wishes as to custodian


- ct may interview child in chambers to ascertain childs wishes as to his custodian and
relevant matters w/in his knowledge.

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ct shall permit counsel to be present and to participate and shall make a record of
interview
* judges dont rush into 385 interview w/o some reason to hear content of such

Alternative Custody Decision Rules:


- some observers suggest that best interests of child statute should be replaced w/ more
determinate decision rule
joint custody
focus on caretaking role

Joint Custody:
McCarty: Joint Custody
generally the parents should be willing to undertake joint custody or it should not be
ordered
rarely should joint custody be ordered in absence of a record of mature conduct on the
part of both parents evidencing an ability to effectively communicate w/ each
other concerning the best interests of the child

* recently, a few cts have ordered joint custody because one or both parents is hostile and
seeks to alienate child from other parent
* psychological research supports the proposition that exposure to conflict btw parents has a
destructive impact on children after divorce may be more harmful than reduced
contact w/ parent

Arguments:
Cons:
* Fineman: argues against joint custody b/c it favors the parent who has not exercised
responsibility for the child comparable to the other parent when the family was intact
* discontinuity for child of moving back and forth btw houses
* parents often use joint custody as bargaining chip
Pros:
* joint custody has a positive effect on payment of child support obligation
- visitation seems to have the same effect though
* contact w/ both parents policy favors joint custody

- cts will usually insert tie breaker in parenting plan where joint legal custody is awarded to
prevent ongoing maintenance of order

Factors for awarding joint custody: in MO


- relationship of the parties involved: do they want it, are they willing to accept it?
- logistics of locations of each parents domiciles (joint physical custody practical?)
- childs preferences

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Primary Caretaker Presumption:


- physical custody best put in hands of parent who dealt with most day to day interactions w/ the
child
* MO can consider primary caretaker using 452.375.2(3) above

Pros:
- justified on fairness grounds: primary caretaker has invested most of her efforts in her
parenting role its likely a strong priority for her
- continuity for the child in daily activities
- predictability in negotiations, less opportunity to misused custody as bargaining chip
Cons:
- not actually gender neutral
- statute should be able to handle w/o presumption

VISITATION

- right of non-custodial parent


- constitutional rights to family autonomy require visitation rights to be honored unless custodial
parent shows that such will lead to serious harm or detriment to the child

Parents sexual activities:


- cts are generally reluctant to intervene where heterosexual non-marital sexual activities are
involved, unless it is shown that such activities are detrimental to the child
- sexual conduct by parents that might be deemed important in choosing btw parents in
custody dispute cannot be restricted in visitation

Childs opposition:
- TC in NC found 2 children in contempt for refusing to visit parent w/ visitation rights
- some older cases found such to be ground for termination of child support, but most cts find
such to be independent issues

Non-Visiting Parent:
- cts have not generally found a duty to visit or that a child has a right to be visited

Zummo:
childs best interests w/ regard to the spiritual aspect of religion cannot be determined by
any govt authority
st
1 A precludes a preference for some religion over another, regardless of secular benefits
presumed to be at stake
st
1 A entanglement doctrine precludes courts from making decisions interpreting religious
doctrine

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agreement that father will not take children to anything contrary to jewish faith will not
be interpreted by courts

Childrens Religious Decisions:


- mature childs wishes as to religion may be factor in visitation decision

452.400. 1. Visitation

(1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the
court finds, after a hearing, that visitation would endanger the child's physical health or impair
his or her emotional development. The court shall enter an order specifically detailing the
visitation rights of the parent without physical custody rights to the child and any other children
for whom such parent has custodial or visitation rights. In determining the granting of visitation
rights, the court shall consider evidence of domestic violence. If the court finds that domestic
violence has occurred, the court may find that granting visitation to the abusive party is in the
best interests of the child.

(2) (a) The court shall not grant visitation to the parent not granted custody if such parent or any
person residing with such parent has been found guilty of or pled guilty to any of the following
offenses when a child was the victim: a. A felony violation of section

(b) For all other violations of offenses in chapters the court may exercise its discretion

(3) The court shall consider the parent's history of inflicting, or tendency to inflict, physical
harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault on other
persons and shall grant visitation in a manner that best protects the child and the parent or other
family or household member who is the victim of domestic violence, and any other children for
whom the parent has custodial or visitation rights from any further harm.

(4) The court, if requested by a party, shall make specific findings of fact to show that the
visitation arrangements made by the court best protect the child or the parent or other family or
household member who is the victim of domestic violence, or any other child for whom the
parent has custodial or visitation rights from any further harm.

2. (1) The court may modify an order granting or denying visitation rights whenever
modification would serve the best interests of the child, but the court shall not restrict a parent's
visitation rights unless it finds that the visitation would endanger the child's physical health or
impair his or her emotional development.

(2) (a) In any proceeding modifying visitation rights, the court shall not grant unsupervised
visitation to a parent if the parent or any person residing with such parent has been found guilty
of or pled guilty to any of the following offenses when a child was the victim:

a. A felony violation of section sections

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(3) When a court restricts a parent's visitation rights or when a court orders supervised visitation
because of allegations of abuse or domestic violence, a showing of proof of treatment and
rehabilitation shall be made to the court before unsupervised visitation may be ordered.
"Supervised visitation", as used in this section, is visitation which takes place in the presence of a
responsible adult appointed by the court for the protection of the child.

3. The court shall mandate compliance with its order by all parties to the action, including
parents, children and third parties. In the event of noncompliance, the aggrieved person may file
a verified motion for contempt. If custody, visitation or third-party custody is denied or interfered
with by a parent or third party without good cause, the aggrieved person may file a family access
motion with the court stating the specific facts which constitute a violation of the judgment of
dissolution or legal separation. The state courts administrator shall develop a simple form for pro
se motions to the aggrieved person

4. Within five court days after the filing of the family access motion pursuant to subsection 3 of
this section, the clerk of the court shall issue a summons

5. If an alternative dispute resolution program is available pursuant to section 452.372, the clerk
shall also provide information to all parties on the availability of any such services, and within
fourteen days of the date of service, the court may schedule alternative dispute resolution.

6. Upon a finding by the court pursuant to a motion for a family access order or a motion for
contempt that its order for custody, visitation or third-party custody has not been complied with,
without good cause, the court shall order a remedy, which may include, but not be limited to:

(1) A compensatory period of visitation, custody or third-party custody at a time convenient


for the aggrieved party not less than the period of time denied;

(2) Participation by the violator in counseling to educate the violator about the importance of
providing the child with a continuing and meaningful relationship with both parents;

(3) Assessment of a fine of up to five hundred dollars against the violator payable to the
aggrieved party;

(4) Requiring the violator to post bond or security to ensure future compliance with the
court's access orders; and

(5) Ordering the violator to pay the cost of counseling to reestablish the parent-child
relationship between the aggrieved party and the child.

7. The reasonable expenses incurred as a result of denial or interference with custody or


visitation, including attorney's fees and costs of a proceeding to enforce visitation rights, custody
or third-party custody, shall be assessed, if requested and for good cause, against the parent or
party who unreasonably denies or interferes with visitation, custody or third-party custody. In
addition, the court may utilize any and all powers relating to contempt conferred on it by law or
rule of the Missouri supreme court.

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8. Final disposition of a motion for a family access order filed pursuant to this section shall take
place not more than sixty days after the service of such motion, unless waived by the parties or
determined to be in the best interest of the child. Final disposition shall not include appellate
review.

9. Motions filed pursuant to this section shall not be deemed an independent civil action from the
original action pursuant to which the judgment or order sought to be enforced was entered.

452.402: Visitation rights of Grandparents (supp 80)


452.403: Mediation ordered w/ respect to G-parent visitation (supp 81)

* this only provides for visitation btw parent and child, not step-parents and step-child

452.365: De-couples support and visitation


- cannot deny visitation to attain support or vice versa (remedy is ct action not self-help)
* L may be subject to punishment for suggesting self-help

Naming: if dispute about surname of child, ct will determine such in accordance w/ best interests
of the child
- if child placed in custody of mother, cts may (and often do) determine that its in best
interests of the child to have same surname as custodial parent

Modification of Custody:

452.410: Modification of Custody when


1. Except as provided in subsection 2 of this section, the court shall not modify a prior
custody decree unless it has jurisdiction under the provisions of section 452.450 and it finds,
upon the basis of facts that have arisen since the prior decree or that were unknown to the
court at the time of the prior decree, that a change has occurred in the circumstances of the
child or his custodian and that the modification is necessary to serve the best interests of the
child. Notwithstanding any other provision of this section or sections 452.375 and 452.400,
any custody order entered by any court in this state or any other state prior to August 13,
1984, may, subject to jurisdictional requirements, be modified to allow for joint custody in
accordance with section 452.375, without any further showing.

2. If either parent files a motion to modify an award of joint legal custody or joint physical
custody, each party shall be entitled to a change of judge as provided by supreme court rule.

*res judicata is CL and can be changed by statute, as has done w/ regard to custody mod

Changed Circumstances:

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- usually remarriage is not enough to warrant a change of custody


- some cts allow a relaxed std where the original award was based on settlement agreement or
default judgment
- ALI Prin: treat provisions in parenting plan that deal w/ future changes in custodial
arrangements under certain conditions as implementations and not
modifications of the plan

Burchard:
absent some prior determination of the childs best interests as of some past date, the cts
have no warrant to disregard facts bearing upon that issue merely b/c such facts do not
constitute changed circumstances (modification stds not used where no prior decree)

* this is the rule in every state: you dont have a modification unless you have a prior decree to
modify otherwise you just have an initial custody determination
keeps cts from applying the changed circumstances requirement to situations where such
circumstances were never settled by court order

Relocation:

- cts try to make determination of whether there is good faith reason for relocation
custodial parent wants to move back to pre-marital domicile
better employment prospects elsewhere

452.377: Relocation of Children (supp 70)

1. For purposes of this section and section 452.375, "relocate" or "relocation" means a change in
the principal residence of a child for a period of ninety days or more, but does not include a
temporary absence from the principal residence. [covers any move, no matter how small]

2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody
or visitation of the child, shall be given in writing by certified mail, return receipt requested, to
any party with custody or visitation rights. Absent exigent circumstances as determined by a
court with jurisdiction, written notice shall be provided at least sixty days in advance of the
proposed relocation. The notice of the proposed relocation shall include the following
information:

(1) The intended new residence, including the specific address and mailing address, if
known, and if not known, the city;
(2) The home telephone number of the new residence, if known;
(3) The date of the intended move or proposed relocation;
(4) A brief statement of the specific reasons for the proposed relocation of a child, if
applicable; and

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(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.
***
5. The court shall consider a failure to provide notice of a proposed relocation of a child as:
(1) A factor in determining whether custody and visitation should be modified;
(2) A basis for ordering the return of the child if the relocation occurs without notice; and
(3) Sufficient cause to order the party seeking to relocate the child to pay reasonable
expenses and attorneys fees incurred by the party objecting to the relocation.

6. If the parties agree to a revised schedule of custody and visitation for the child, which includes
a parenting plan, they may submit the terms of such agreement to the court with a written
affidavit signed by all parties with custody or visitation assenting to the terms of the agreement,
and the court may order the revised parenting plan and applicable visitation schedule without a
hearing.

7. The residence of the child may be relocated sixty days after providing notice, as required by
this section, unless a parent files a motion seeking an order to prevent the relocation within
thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting
forth the specific factual basis supporting a prohibition of the relocation. The person seeking
relocation shall file a response to the motion within fourteen days, unless extended by the court
for good cause, and include a counter-affidavit setting forth the facts in support of the relocation
as well as a proposed revised parenting plan for the child.

8. If relocation of the child is proposed, a third party entitled by court order to legal custody of
or visitation with a child and who is not a parent may file a cause of action to obtain a revised
schedule of legal custody or visitation, but shall not prevent a relocation.

9. The party seeking to relocate shall have the burden of proving that the proposed relocation is
made in good faith and is in the best interest of the child.

10. If relocation is permitted:


(1) The court shall order contact with the non-relocating party including custody or visitation
and telephone access sufficient to assure that the child has frequent, continuing and
meaningful contact with the non-relocating party unless the child's best interest
warrants* otherwise; and
(2) The court shall specify how the transportation costs will be allocated between the parties
and adjust the child support, as appropriate, considering the costs of transportation.

12. Violation of the provisions of this section or a court order under this section may be deemed
a change of circumstance under section 452.410,

13. Any party who objects in good faith to the relocation of a child's principal** residence shall
not be ordered to pay the costs and attorney's fees of the party seeking to relocate.

Marriage of Lamusga:

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in a move-away case, a change of custody is not justified simply b/c the custodial parent
has chosen for a good faith reason to reside in a different location
such change is justified only if, as result of such relocation, the child will suffer detriment
rendering it essential or expedient for the welfare of the child that there be a change
in custody if it is in the best interests of the child
court must not enter a conditional order for the purpose of coercing the custodial parent
into abandoning plans to relocate

Parents v Non-Parents in Custody Disputes:

Parental Preference:

Basic Rule: (parental preference) biological parent should win over non-parent, as long as they
are fit and have not abandoned child, regardless of best interests of child std
Fit: willing, free of serious drug, alcohol, physical abuse

Constitutional Standard:
- SDP right of parent to raise child as they see fit w/o too much govt interference
> unfit parent may be denied custody

MO: Wise father was entitled to custody unless unfit, unwilling, or unable to assume
responsibility for the children, even if their welfare would be detrimentally affected (as
opposed to custody w/ non-parent)

Note: once a non-parent is granted custody over a parent, the goal of preserving stability in
the childs life outweighs the parental preference at modification

Other Doctrines: [not recognized in MO]


- parent by estoppel: where parent has held non-parent out as the childs parent
- equitable parent
- psychological parenthood: (proposal) legally favored parent would be the adult who has
actually functioned as the childs primary caregiver w/ whom the child identifies as
parent
- de facto parent:
ALI prin: provides that cts can allocate residential responsibility to individual who has
resided w/ the child for a significant period and has performed many
parenting functions w/o financial compensation (emphasizes
acquiescence of legal parent to dev of this relationship 2 yr
min)
- cts have held that if parent is fit, de facto parents can only seek visitation
- foster parents not de facto parents b/c agency provided financial support Swiss

Grandparents Visitation:

Troxel v Granville: USSC


fundamental liberty interest in custody, care, and control of a persons children

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statute allowing any person to petition for visitation at any time was a SDP violation, b/c
fit parent has right to make decisions for child
statute unconstitutional as applied to situation where g-parent visitation ordered over the
objections of a fit parent
if you are going to order g-parent / 3rd party visitation, there has to be a presumption that a
fit natural parent makes the proper decision for the child (not just best interests of
child)
need some finding that denial of visitation would harm the child emotionally

452.402.

1. The court may grant reasonable visitation rights to the grandparents of the child and issue any
necessary orders to enforce the decree. The court may grant grandparent visitation when:

(1) The parents of the child have filed for a dissolution of their marriage. A grandparent shall
have the right to intervene in any dissolution action solely on the issue of visitation
rights. Grandparents shall also have the right to file a motion to modify the original
decree of dissolution to seek visitation rights when visitation has been denied to them; or
(2) One parent of the child is deceased and the surviving parent denies reasonable visitation
to a parent of the deceased parent of the child; or
(3) The child has resided in the grandparent's home for at least six months within the twenty-
four month period immediately preceding the filing of the petition; and
(4) A grandparent is unreasonably denied visitation with the child for a period exceeding
ninety days. However, if the natural parents are legally married to each other and are
living together with the child, a grandparent may not file for visitation pursuant to this
subdivision.

2. The court shall determine if the visitation by the grandparent would be in the child's best
interest or if it would endanger the child's physical health or impair the child's emotional
development. Visitation may only be ordered when the court finds such visitation to be in the
best interests of the child. However, when the parents of the child are legally married to each
other and are living together with the child, it shall be a rebuttable presumption that such parents
know what is in the best interest of the child. The court may order reasonable conditions or
restrictions on grandparent visitation.

3. If the court finds it to be in the best interests of the child, the court may appoint a guardian ad
litem for the child. The guardian ad litem shall be an attorney licensed to practice law in
Missouri. The guardian ad litem may, for the purpose of determining the question of grandparent
visitation rights, participate in the proceedings as if such guardian ad litem were a party. The
court shall enter judgment allowing a reasonable fee to the guardian ad litem.

4. A home study, as described by section 452.390, may be ordered by the court to assist in
determining the best interests of the child.

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5. The court may, in its discretion, consult with the child regarding the child's wishes in
determining the best interest of the child.

6. The right of a grandparent to maintain visitation rights pursuant to this section may terminate
upon the adoption of the child.

7. The court may award reasonable attorneys fees and expenses to the prevailing party.

AGREEMENTS OF THE PARTIES

- today, the vast majority of divorces are solved by separation agreements

Contract Law Principles:


1. generally, ct will not scrutinize the fairness of a K in absence of fraud, duress,
unconscionable
2. some Ks unenforceable b/c against public policy
3. fiduciary relationships: types of Ks where closer scrutiny of Ks is common

Premarital Agreements

Traditional Rule: barred agreements that contemplated divorce

Today:
Enforcement: if premarital agreement are procedurally and substantively fair, they will be
enforced
Statute of Frauds: a writing is reqd whenever marriage is even part of the Ks consideration
- will not be enforced if oral [at least in MO]

Penhallow: ct enforced a premarital agreement that penalized the spouse who initiated
divorce in the allocation of property

- a cts willingness to enforce premarital agreement stipulating the grounds on which a


divorce can proceed, or how evidence of fault will affect property distribution and
support may depend on whether the substantive provisions in the agreement
conflict with the states public policy
Child Issues: ct is not bound by agreements w/ respect to children
Heightened Scrutiny: minority of states do not apply heightened scrutiny to pre-nups b/c wife
is no longer in subordinate position
Majority: gender neutral but retains heightened scrutiny b/c one spouse is often in
subordinate position [MO]
Fairness: procedural and substantive
Procedural:
full disclosure of assets
voluntary-ness (duress issue? perhaps if addressed right before ceremony)
Substantive:

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unconscionable?

DeLong:
to be enforceable, pre-nup must
1. be entered into freely, fairly, knowingly, understandingly, and in good faith w/ full
disclosure
2. must be conscionable

MO specifics:
- no public policy against enforcement
- ct do refuse to enforce based on procedural and substantive rules
- agreement may be somewhat one-sided w/o being unconscionable
- child related issues in pre-marital agreements not binding on ct

Separation Agreement:

- about 97% of divorces are settled w/ a separation agreement

452.325.

1. To promote the amicable settlement of disputes between the parties to a marriage attendant
upon their separation or the dissolution of their marriage, the parties may enter into a written
separation agreement containing provisions for the maintenance of either of them, the
disposition of any property owned by either of them, and the custody, support and visitation of
their children.

2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation
agreement, except terms providing for the custody, support, and visitation of children, are
binding upon the court unless it finds, after considering the economic circumstances of the
parties and any other relevant evidence produced by the parties, on their own motion or on
request of the court, that the separation agreement is unconscionable.

3. If the court finds the separation agreement unconscionable, the court may request the parties
to submit a revised separation agreement or the court may make orders for the disposition of
property, support, and maintenance in accordance with the provisions of sections 452.330,
452.335 and 452.340.

4. If the court finds that the separation agreement is not unconscionable as to support (spousal),
maintenance, and property:

(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the
decree of dissolution or legal separation and the parties shall be ordered to perform them;
or
(2) If the separation agreement provides that its terms shall not be set forth in the decree, only

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those terms concerning child support, custody and visitation shall be set forth in the
decree, and the decree shall state that the court has found the remaining terms not
unconscionable.

5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the
enforcement of a judgment, and the court may punish any party who willfully violates its decree
to the same extent as is provided by law for contempt of the court in any other suit or proceeding
cognizable by the court.

6. Except for terms concerning the support, custody or visitation of children, the decree may
expressly preclude or limit modification of terms set forth in the decree if the separation
agreement so provides.

* parties cannot stipulate to keep child related issues out of the decree
* parties cannot make a binding agreement that the grounds for divorce have been satisfied or
agree to change the grounds for divorce by agreement or stipulation

Practicing Contemporary Family Law

- no fault divorce served to improve the status of the divorce lawyer


- the field is currently interrelated w/ many other fields of law

Roles of domestic relations practitioners:


mediator: 3rd party neutral meets w/ both parties and seeks to facilitate voluntary settlement
arbitrator: 3rd party decision maker appointed by parties to reach resolution
- ct reviews arb decisions de novo (makes this less useful)
collaborative L: negotiates on behalf of party, w/draws if case proceeds to litigation
guardian ad litem: appointed by ct to speak on childs behalf
parent educator: L instructing parents in classroom setting on post divorce matters
parent coordinator: L providing intensive case management for high conflict families w/
children

Intimacy and the Lawyer:


- Cs emotional fragility may infect the lawyer-client relationship
- uncomfortable intimacy may present a barrier btw the lawyer and client (clients are often
suspicious of their own lawyers

Erlanger Article:
- in a number of test cases, while one party was extremely impatient to finalize the divorce,
the other wanted nothing less than a day in court a chance to vilify the initiating
spouse

Ethics:
- each yr clients file more complaints against divorce lawyers than against lawyers in any
other field of practice

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- divorce lawyers are also named in a significant percentage of legal malpractice claims
Pruett and Jackson suggest that much client frustration w/ counsel may stem from
frustration w/ divorce litigation itself, and from the parties own unrealistic
expectations about the outcome

Other Stats:
- family law lawyers had one of highest job satisfaction scores
- many divorcing spouses (btw 60 and 80%) appear w/o counsel
> more likely to do so if no children, not homeowners, little personal property, low
household income, short marriage (10 yrs or less)
> pro se litigants more satisfied w/ decrees, process, judges but missed out on advice in
some crucial areas and were less likely to use counseling or ADR

Notes on Judges Speech in Class:


- most commonly used fault is behaved in such a way
- even though MO changed to hedged no fault, there is a lot of fault involved b/c one party
often denies that marriage is irretrievable
- litigants are rather vulnerable (Ls should be careful about creating unrealistic expectations)
- most steeply one sided property distribution was 85% to 15%, where there was an attempt
on womans life by husband
- tip: have them make a list of what they really want in order of importance
- make sure to not ask questions that produce a double negative
Asset Hiding:
1. life insurance cash values
2. over w/holdings
3. writing checks over the amount and stashing cash
Tips
1. pay her lawyer fees during the proceedings or you may have to pay them after the
disposition w/ your portion of the money (pay other debts w/ marital money
that your C may get stuck with)
2. give house to spouse if you dont want it b/c you get the award tax free and before
sales costs
3. be careful when dividing assets not to take less valuable assets b/c of tax issues (IRAs
have penalties for w/drawl)
4. dont tell wife not to work in order to increase maintenance b/c she needs health
insurance and it makes a better argument for custody
5. dont waste money on expert witness that is going to make unbelievable suggestions
6. cant base decisions exclusively based on childs opinion, causes problems
Statements of property / income & expenses:
- should be prepared or at least reviewed by the lawyer, very important document
- avoid inconsistencies like a bi-weekly paid employee reporting only 24 checks per yr
instead of 26

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