COURSE OUTLINE

FAMILY LAW - UPCHURCH

Constitutionalizing Family Law 1

Marriage Requirements 3

Divorce 5

Child Custody and Parenting Rights 7

Visitation 9

Modification of Child Custody Order 11

UCCJEA and PKPA 12

Child Support 14

Spousal Support 16

Modification of Spousal Support 17

Distribution of Property in Divorce 19

Prenuptial Agreements 22

Domestic Violence 23

Parentage Determination 24

Professional Responsibility 25
The Common Law View of Married Women
-Protection of Married Women
-Common Law Duty to Support
-Forced Share
-Married Women's Acts

Interplay of State and Federal Systems

-Under Full Faith and Credit, judgments "shall have such faith and credit given to them in every court
within the United States as they have by law or usage in the courts of the State from which they are
taken."
-Jackson v. Jackson (NY 1804)

Constitutionalizing Family Law

-History of State Regulation of Marriage
-Constitutional Limits on State Regulation

History of Marriage Laws in the US

-Very short list of rules for most of US history
-Consent
-Minimum age
-Not already married
-Not a close familial relation
-Progressive Era - Eugenics and Public Health concerns
-Denying marriage to persons with epilepsy, venereal disease, active TB and a few other diseases
-Raised minimum age on marriage
-Post WWII, we see a deregulation of marriage
-Roll back on age restrictions
-Abandonment of mandatory health screenings
-Repeal moral purity laws

-Restrictions Present in Most States Today

-Age restrictions
-Bigamy or Polygamy
-Incest

Restrictions on Marriage: Polygamy

*Reynolds v. United States (US 1878)
-1st Amendment challenge to prohibition of polygamy
-Court finds state is within its constitutional authority to prohibit polygamy
-The Court distinguished between religious beliefs v. religious practices

Constitutional Limits on State Regulation

Loving v. Virginia (1967)
-**The Equal Protection Clause demands that racial classifications, especially suspect in criminal
statutes, be subjected to the "most rigid scrutiny," and, if they are ever to be upheld, they must be
shown to be necessary to the accomplishment of some permissible state objective, independent of
the racial discrimination which it was the object of the Fourteenth Amendment to eliminate
-**The Due Process Clause of the 14th Amendment requires due process of law. The freedom to
marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of
happiness by free men.

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 -The State's initial justification was the protection of children from the harassment of having
interracial parents. This argument is circular and the Court didn't buy it
-Equal Protection
-Denying access to marriage on grounds of race was not permissible
-Racial classifications are "suspect" classes
-Substantive Due Process
-Fundamental right to marriage

Zablocki v. Redhail (1978)

-**When a statutory classification significantly interferes with the exercise of a fundamental right,
it cannot be upheld unless it is supported by sufficiently important state interests and is closely
tailored to effectuate only those interests
** to get strict scrutiny, you must show direct and substantial interference with the right to marry,
otherwise you will get rational basis scrutiny
-compelling gov’t interests:
-the permission to marry proceeding furnishes an opportunity to counsel the applicant as to the
necessity of fulfilling his prior support obligations
-welfare of the out of custody children is protected
-these are legitimate and substantial government interests
-were the means narrowly tailored?
-not clear from statute that ANY counseling would ever occur
-collection device rationale is flawed
No money goes to child from the denial of the marriage
State can already enforce this in better ways (wage garnishment; criminal punishment; etc)
-suggestion the statute protects children by preventing new obligations (more children) is BOTH
under and over inclusive
-only limits financial obligations arising out of marriage
-new spouse may actually better financial situation
-perverse incentives

Primer on Due Process Protection

-Substantive Due Process - Prohibits government from certain deprivations of life, liberty or property
based regardless of the process the government adopts to create the deprivation
-Procedural Due Process
-Equal Protection - Prohibits government action that disparately impacts suspect class of individuals or
infringes on a fundamental right

Constitutional Limits on State Regulation - Same-Sex Marriage Restrictions

Lawrence v. Texas (US 2003)
-Whether the Texas sodomy statute that criminal homosexual sodomy was constitutional?
-The nature of the constitutional challenge was in Substantive Due Process. It does not touch Equal
Protection issues
-Right to Liberty in intimate sexual conduct versus the governmental interests
-This case shifted this issue from a privacy issue to a liberty rights issue
-Case is based on rational basis review

United States v. Windsor (US 2013)

-Challenged the federal DOMA which defined marriage as a "legal union between one man and one
woman" for purposes of federal law
-Based primarily on EP
-Differences in treatment between state law and federal law

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-Conflicts of Law, 2nd Restatement
-Marriage valid everywhere unless it violates the strong public policy of another state or the state
that has the MSR with the party

Obergefell v. Hodges (US 2015)

-Based on both DP and EP
-Blended right; based in liberty and equality
-Marriage is a fundamental right
-Marriage choice is tied to individual autonomy (dignity)
-Supports two-person union
-Safeguards children and families
-Keystone of social order (social benefits flow from marriage)
-Limitation on Religious Freedom?

Marriage Requirements
***Requirements for Valid Marriage
-Not prohibited
-Incest (Consanguinity and Affinity)
-Bigamy/Polygamy
-Age restrictions
-Ability to consent
-Age
-Capacity
-Observe Formalities/Process
-Licensure
-Solemnization

"Not prohibited:" - Incest

-Consanguinity
-Relationship by blood
-Affinity
-Relationship through adoption/marriage
-All states prohibit marriages between parent/child; brother/sister
-Most prohibit aunt/uncle and niece/nephew
-50% bar marriage to 1st cousin

Illinois Prohibited Marriages

-750 ILCS 5/212

"Not prohibited:" - Bigamy

-Last-in-time Marriage Presumption
-When in doubt, the last spouse is presumed to be the final spouse for benefits purposes
-Enoch Arden statutes
-Believe your spouse is dead, but there is no proof
-Doesn't validate the 2nd marriage, but they are an affirmative defense to criminal prosecution

"Not prohibited:" - Age

-Typical Age Requirements

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 -18 year minimum
-16 to 17 with parental consent OR judicial approval
-Under 16 in only exceptional cases with BOTH parental consent and court approval

Capacity to Consent to Marriage

-Party must be able to understand the rights, duties and responsibilities of marriage at the time of the
marriage contract
-Under what circumstances might a party lack the ability to consent to marriage?

Observing Formalities/Process
Marriage Formalities
Process for entry into Marriage
Illinois: A marriage between 2 persons licensed, solemnized and registered as provided in this Act is
valid in this state
-Meant as an original check on individuals that they meet all requirements to be married
-Requirements for licensure, solemnization, and registration
Carabetta v. Carabetta (Ct. 1980)
-Unless the licensing statute plainly makes an unlicensed marriage invalid, the cases find the policy
favoring valid marriages sufficiently strong to justify upholding the unlicensed ceremony

Putative marriage
-UMDA
-Someone in good faith believes they are married, but legally aren't, the court generally will allow the
marriage to stand

*Annulment v. Divorce
Annulment -As if the marriage did not exist
-Types of Annulment and their grounds
-Void
-Bigamy
-Incest
-Youth without possibility of consent
-(Can be challenged by a party not part of the marriage)
-(Can be raised after the death of one of the spouses)
-Voidable
-Capacity problems
-Youth
-Elderly
-IL: Unsound mind
-Fraud
-Involuntary (by force)
-Physically incapable of sexual intercourse
-(Can typically only be brought by a party themselves or a necessary party (i.e. parent to a
youth or mentally ill child))
-(Can only be brought during the lifetime of the spouses)
Divorce -An ending of the marriage

Common Law Marriage

***Requirements
-Agreement to be married
-Competent to marry

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 -Cohabitation
-Holding out as married
-Reputation as married
-Prohibited in IL
-Divorce rules apply to common law marriage
-Inheritance
-Forced share of a spouse
-Intestate succession as a spouse

Stein v. Stein (Mo. 1982)

-Missouri will not recognize a marriage in common law form between Missouri residents even though the
marriage is alleged to have occurred in a state which recognizes common law marriages. Such a marriage
violates the public policy of the state.

Divorce
History of Divorce
-Ecclesiastical courts
-Divorce from bed and board only on a showing of fault
-Protestant Reformation
-Divorce in the Colonies
-Puritans and Pilgrims believed marriage was a civil concern. Divorce was permitted where a
broken marriage threatened community stability
-Southern colonies held to the teachings of the Church of England and did NOT permit divorce

-Divorce: Fault Based History in America

-Typical grounds for fault
-***Typical defenses (Prof: Important) (defenses to the divorce itself)
-Recrimination
-A party asserting this defense claimed that the complaining party was guilty of an
offense that would in fact justify the defendant in obtaining a divorce
-Connivance
-A defense often used in adultery actions, was defined as consent by one party to the
adulterous act of the other
-Condonation
-An expressed or implied forgiveness of the martial misconduct. It was usually
conditional and based on a promise not to repeat the offense
-Insanity
-Collusion

-Divorce: No-Fault Basis

-No-fault origin in Reno, NV
-Example of no-fault:
-Spouses have lived separate and apart for a continuous period (in excess of 2 years)
-Irreconcilable differences have caused the irretrievable breakdown of the marriage
-The court determines that efforts at reconciliation have failed or that future attempts at
reconciliation would be impracticable and not in the best interests of the family

****EXAM

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 -Must be able to discuss fault/no fault and defenses. Spot the possible defenses and its application
to either fault/no fault jurisdictions

Illinois
-Lived apart for 6-month before filing; presumption is that irreconcilable differences standard has been
met

Annulment vs. Divorce

-Annulment
-An annulment is a legal procedure which cancels a marriage between a man and a woman.
Annulling a marriage is as though it is completely erased - legally, it declares that the marriage
never technically existed and was never valid.
-**A high burden. Must show that the marriage is either void or voidable
-On the parties to the marriage
-As if the marriage did not exist
-Exception: Putative Spouse
-On others
-Revival of spousal support
-Some jurisdictions treat as an outright renewal
-Some jurisdictions treat as renewal if annulment was for "void" marriage
-Case-by-case decision to revive spousal support

Proper Court Selection

-SMJ
-Can this court hear my dispute?
-PJ
-Can this court bind my defendant to the judgment?
-*Follows the International Shoe standards for PJ
-State/Federal Courts
-Family law is an exclusionary state matter. Cannot file in federal court
-Why does jurisdiction matter?
-Under Full Faith and Credit, judgments "shall have such faith and credit given to them in every
court within the US as they have by law or usage in the courts of the State from which they are
taken
-Foreign judgments
-Maybe. Depends on if there is sufficient process like would be sufficient in the US
-Domicile PLUS residency requirements
-Most states have an additional residency requirement
-Notice requirements

Williams I and Williams II (US 1942, 1945)

-Prior to these cases, you needed to have personal jurisdiction over both parties to issue binding divorce

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-*Court requires at least one party to the marriage has to be domiciled in the state for the court to have
jurisdiction to enter a divorce
-Here, the parties were not domiciled in Nevada since they did not have the intent to stay in
Nevada. They were from NC and only went to Nevada to get the divorce and married, but
immediately returned to NC

Court Procedure
-Discovery
-Same basic devices are available
-Key issue: Social Media, Texts, Instagram

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 Child Custody and Parenting Rights
Child Custody Determinations
-Traditional Modern Statutes
-Legal Custody
-Physical Custody
-Rivero v. Rivero
-Legal custody
-Involves having basic legal responsibility for a child and making major decisions regarding
the child, including the child's health, education, and religious upbringing
-Physical custody
-Involves the time that a child physically spends in the care of a parent, including supervision
and care for a child with day-to-day decisions
-*To constitute joint physical custody, each parent must have physical custody of the child at least
40 percent of the time (Not necessarily the rule in all cases, but what this particular court found to
give equal timeshare and responsibilities by both parents)

Illinois Approach
-Decision-Making (750 ILCS 5/602.5) = Legal Custody
-Parenting Time (750 ILCS 5/602.7) = Physical Custody

Who Receives Custody?

-Historic Presumptions
-English Common Law
-Tender Years Doctrine
-Ex parte Devine (Ala. 1981)
-Primary Caretaker
-Present: BIOC

***Best Interests of the Child Standard (BIOC)

-Factors to be emphasized
-Parent-child bond
-Past caretaking
-Time availability
-Stability of environment
-Willingness to foster relationship with other parent
-Domestic violence
-Preference of the child

Best Interest Factor: Cooperative Parent & Domestic Violence

-McIntosh and Ford
-Includes consideration of the "willingness and ability of each parent to facilitate" a relationship
between the child and the other parent

Best Interest Factor: Preference of the Child

-Child’s preference will be considered and will be given greater weight the older the child is

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Limits on consideration of Parental Conduct
-Piatt v. Piatt (Va. Ct. App. 1998)
-In general, a court examines the sexual conduct of a parent to determine whether it has had any
adverse impact on the child
-This is the minority position

-***Rule: Most courts look at a nexus test: Is there a nexus between the conduct and any affect on
the child?

Limits on consideration of Race, Disability, and Religion

Race
-Very limited consideration
-Actual evidence that there is racial discrimination against the child from family members that
create a hostile living environment

Disability
-Only when the disability impacts ability to meet the needs of the child (Nexus test)

Religion
-Arises when
-Parent seeks legal custody over religious training
-Parent challenges the other parent's religious affiliation as harmful to the child
-*Trend: Only set limit religious instruction when the religious behavior impacts health and
well being of child or there is a "substantial threat of harm" to child

Making the Determination Award: Role of Parents

-Parenting Plans
-Vollet v. Vollet (Mo. Ct. App. 2006)
-Agreements between parents regarding minor children are only advisory. Such agreements
do not bind the court, because the court is ordered to make a determination of the child's best
interest by looking at all relevant factors
-*This is the minority determination

-**Majority of states encourage courts to follow and adopt an agreed-upon parenting plan in order
to encourage the parties to follow the plan

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 Visitation
-Why does a parent who doesn’t receive physical custody still have the right to visitation?
-The legal right to visitation
-It is in the best interests of the child

Visitation: Making Basic Parenting Decisions

Miller v. Smith (Vt. 2009)
-The parent who does not have physical responsibility for a child has a right to some measure of
parent-child contact unless the best interests of the child require otherwise. The court may impose
conditions on visitation if clearly required by the child's best interests, which is not to suggest that
the custodial parent can impose restrictions unilaterally. If the custodial parent desires that
restrictions be imposed, she must ask the court to impose them. Without mutual tolerance and
understanding, these rights of visitation can become a nightmare for both parents and a disaster for
the child or children involved.

-Illinois: This would fall under decision-making category, and would be up to the parent currently
having the child in custody. Both parents would not have to make the decision

Visitation: Making Religious Decisions

Wood v. Dehahn (Wis. Ct. Apps. 1997)
-It is the court's responsibility to determine if a non-custodian's actions are inconsistent such that it
is necessary and reasonable to fashion a restrictive order to protect the legal custodian's major life
choice. The custodian must show how a restrictive order is reasonably necessary in order to protect
his choice for his children. The moving party has that burden.
-This case again looks at encouraging courts to follow an agreed-upon parenting plan

Restrictions on Visitation
-Examples of restrictions
-Supervised visitation
-Visitation at specified locations
-Restrictions on pick-up and drop-off
-Parenting classes or therapy requirement

Pratt v. Pratt (Ala. App. Ct. 2010)

-This court has repeatedly held that a judgment awarding visitation to be supervised by the
custodian of the child, without establishing a minimal visitation schedule for the noncustodial
parent, impermissibly allows the custodian to control all visitation…. an order of visitation
granting a custodian so much discretion over a visitation schedule that visitation could be
completely avoided if the custodian so desired should be deemed to be an award of no visitation
and to be in violation of the rights of the noncustodial parent.

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Illinois: SEE 750 ILCS 5/602.8

Visitation with Non-parents

-Grandparents
Troxel v. Granville (US 2000)
-Right at interest?
-Parent's liberty interest in the care, custody and control of children

-Unmarried same sex partner

-Soohoo v. Johnson (Minn. 2007)
-Court placed procedural mechanisms to ensure the custodial parent's decision was afforded
"due deference"
-Burden on person seeking visitation
-Clear and convincing evidence

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 Modification of Child Custody Order
Initial child custody order
-Initial determination is res judicata
-Cannot refile to reargue facts from initial determination
Modification of order
-Need some flexibility to meet changing needs and circumstances
-How to balance interests in finality and need for flexibility?
-Moratorium or modification
-Change in circumstances

Illinois: 750 ILCS 5/610.5

Change in Circumstances
Threat to Child's Health
Lizzio v. Jackson (NY 1996)
-A change in an established custody arrangement should be allowed only upon a showing of
sufficient change in circumstances demonstrating a real need for a change in order to insure the
child's best interest. The determination necessitates an inquiry into a number of factors relevant to
the child's best interest, including the quality of the parents' home environments, the length of time
the present custody arrangement was in place, relative fitness, and ability to provide the requisite
intellectual and emotional development for the child.

Military Deployment
Faucett v. Vasquez (NJ 2009)
-As a result, "the best interest of the child cannot validly ground an award of custody to a third
party over the objection of a fit parent without an initial court finding that the standard for
termination of the rights of a non-consenting parent or the 'exceptional circumstances' prong has
been satisfied."

Relocation and Child Custody: Applying Best Interests Test

-Consider the impact on the child and include benefits to custodial parent that will inure to the child.

Curtis v. Curtis (Neb. App. Ct. 2008)

-The threshold question in removal cases is whether the parent wishing to remove the child from
the state has a legitimate reason for leaving.
-Career advancement and remarriage are commonly found legitimate reasons for a move in removal
cases, but they do not compose the exclusive list of legitimate reasons.

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 Child Custody Jurisdictional Concerns (UCCJEA and PKPA)
Why does child custody jurisdiction matter
-Certainty on court's power over decisions related to child
-Avoid conflicting court decisions
-Ensure court has evidence related to decisions about child
-Create stability for children (create disincentives to move child)

Two Possible Child Custody Proceedings

-Initial proceeding
-Continuing jurisdiction
-Modification proceeding

Initial Proceeding
-PKPA and UCCJEA: Possible bases for jurisdiction (in order of precedence)
-Home state
-State in which "child has lived with a parent" for "at least six consecutive months"
-Also includes state that "was the home state of the child within six months before the
commencement of the proceeding and the child is absent from this state but a
parent…continues to live in this state"
-Of infant: State in which the child live from birth with its parent
-Where a child with home state status in one state is moved for any reason to a second state,
the child will not lose home state status in the first state or gain it in the second for another
six months
-Must be home state by the day of the filing OR within the past 6 months
-Don’t count temporary absences against the 6 months
-Significant connection and substantial evidence
-Where there is no home state or the home state has declined to exercise jurisdiction
-If child has sufficient ties to the state and substantial evidence concerning the child is
available in the state
-Emergency
-Last Resort

-Presumption of Continuing Jurisdiction (UCCJEA § 202)

-A court of this State which made a child-custody determination has exclusive, continuing
jurisdiction over the determination until:
-A court of this State determines that neither the child, nor the child's parents … have a
significant connection with this State and that substantial evidence is no longer available in
this State concerning the child's care, protection, training, and personal relationships; or
-A court of this State or a court of another State determines that the child, the child's parents,
and any person acting as a parent do not presently reside in this State

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Modification Proceeding
-UCCJEA § 203
-A court of this State may not modify a child-custody determination made by a court of
another State unless a court of this State has jurisdiction to make an initial determination
under either (home state) or (significant connection test) and;
-the court of the other State determines it no longer has exclusive, continuing
jurisdiction under 202 … or that a court of this State would be a more convenient
forum; or
-a court of this State or a court of the other State determines that the child, the child’s
parent, …do not presently reside in the other State.

OVERALL RULES FOR CHILD CUSTODY PROCEEDINGS

-Initial Decision
-Home State priority
-Back-up: Significant connection and substantial evidence
-Modification Decision
-Exclusive, continuing jurisdiction in state that made initial decision
-Check whether you meet test for modification in another state
-Grounds for Jurisdiction to Modify
-Can be determined by ANY court
-Can be determined by ONLY initial court
-Neither child, the child’s parent, and any person acting as a parent have a significant
connection with the state AND substantial evidence is no longer available in the state;
and
-Continuing jurisdiction is no longer convenient
-Do not presently reside in the other State

-UCCJEA Questions
-First consider whether the jurisdiction is original or continuing jurisdiction
-If initial
-Home state priority (child in state for 6 months consecutive months immediately proceeding
the filing)
-If no Home state or that court declines, find significant connection and substantial evidence
-If modification
-Was the original action filed in a forum with jurisdiction?
-Do child and parents all reside outside of forum?
-Does the original forum lack significant connection with child or parent and no substantial
evidence there?

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 Child Support
Child Support Calculations
-Step 1: Calculate Income of Parents
-How is income defined?
-What support base is used?
-Step 2: Apply Guideline to Calculate Support
-Percentage-of-Income Model
-Income Shares Model

What counts as income?

-Broad interpretation
-Includes employment income (oftentimes it includes sporadic/odd jobs employment income)
-750 ILCS 5/505 "all income from all sources"

What support base is used? - Three approaches

-Gross Income Base
-Simple
-Cannot be manipulated by deductions
-But, not an accurate measure of income actually available to support obligor
-Adjusted Gross Income Base
-Deductions for:
-Federal and state tax;
-Non-voluntary payroll withholding (union fees and retirement payments)
-Prior support obligations
-More accurate measure of obligor's income
-Net income base
-Deductions for:
-Federal and state tax;
-Non--voluntary payroll withholding
-Prior support obligations
-Voluntary payroll withholdings
-Job-related expenses
-More discretionary and subject to manipulation

Imputed Income
-Carolan v. Bell (Maine, 2007)
-Rent (No)
-Health Insurance payments (Yes)
-Additional hours of work (No)

What can be deducted from income?

-Support owed to other children?
-Beck v. Beck (Md. App. Ct. 2005)
-Support owed to previous children can be deducted from the income determination
-Parenting Time Offset
-Sanjari v. Sanjari (Ind. App. Ct. 2001)
-Payments that occur during "parenting time" are offset from the income determination

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Illinois Support Base
Revised Illinois (2017) - Adjusted gross and net income
-Adjusts gross by excluding:
-Means-tested public assistance
-Child support, survivor benefits, and foster care payments receive
-Included in gross
-Social Security disability and retirement benefits
 ….
-Gross is adjusted for child support given to children outside of this marriage
=Adjusted gross income - standardized tax amount OR individualized tax amount = net income

***Applying Guideline to Calculate Support

-Percentage-of-Income Model (Minority model)
-Sets support amount as a fix percentage of the noncustodial parent's income
-Usually the only variable is the number of children
-Income Shares Model (Majority model)
-Child is entitled to the same share of parental income had the family stayed together
-Income of both parents are combined and basic calculation made
-Obligation is allocated between parents in proportion to income
-Noncustodial parent makes payments and custodial parent assumed to be paying through direct
expenses
-Voishan v. Palmer (Md. App. Ct. 1992)
-If guidelines are based on evidence of actual household expenditures on children, the court
should consider factors such as age of the children, the number of children in the family, and
the standard of living of the parents

Getting to the Award

-Court not bound by parties' agreement
-Though parties may be estopped from arguing for modification
-Factors to consider:
-Income of custodial parent
-Income of new partner
-Income/resources of the child
-Multiple families
-Extraordinary………

Terminating Events
-Emancipation
-*NOTE: college expenses
-Oeller v. Oeller
-"Where a child leaves his parents' house, voluntarily to avoid the discipline and restraint so
necessary for the due regulations of families, he carries with him no credit; and the parent is
under no obligation to pay for his support"
-Parental Death
-Many states hold estate responsible for continued payments
-Require parent to take out life insurance policy for child
-Adoption/Termination of Parental Rights

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 Spousal Support
-Purpose:
-Need based
-Short-term bridge to self-support
-Reimbursement for financial or other investments made during marriage
-Punishment for fault

-Types of awards:
-Alimony pendente lite
-Final awards
-Short term
-Rehabilitative
-Bridging the Gap
-Long term
-Reimbursement
-Need-based (or equity based)
-Lump sum

Approaches: How is award set?

-Judicial discretion
-Judge determines need and then awards what seems just based on parties’ circumstances
-Often provided a list of factors to consider
-Presumptive guidelines

UMDA Approach
-Step One: Need
-Whether the spouse seeking support (1) lacks sufficient property 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 of the home
-Step Two: Amount
-(1) the financial resources of the party seeking maintenance, including marital property
apportioned to him, his ability to meet his needs independently, and 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 standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of the spouse seeking maintenance; and
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting
those of the spouse seeking maintenance.

ALI Approach
-Spousal support is award as compensation for losses in earning capacity and standard of living and not
for relief of need.
-Types of losses compensated:
-Assumption of a disproportionate share of care giving
-Investment in the earning capacity of the other spouse
-Changes in standard of living

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 Modification of Spousal Support
-Step 1: Make sure the court has jurisdiction to hear the case
-Personal JD over the parties at the time of award; International Shoe
-Award was made or issue was reserved
-Award must be modifiable
-Step 2: Substantial change in circumstances
-Not known or foreseen at the time of the award
-Step 3: Is adjustment needed?
-Prior award is now unreasonable/unfair
-Prior award is now unconscionable - UMDA
-Factor based test
-Step 4: Award calculated

Step 1
Uniform Interstate Family Support Act
-Initial Child or Spousal Support Order
-Custodial parent can seek order in his or her home state so long as state has PJ over noncustodial
parent
-When no PJ over noncustodial parent in custodial parent's home state, custodial parent files in his
or her home state and the Title IV-D agency sends it on to the IV-D agency in the noncustodial
parent's home state
-TWO-STATE PROCEEDING
-Enforcing Order
-All states must enforce order
-Typically go to where the noncustodial parent's spouse's assets are located
-Direct income withholding by IV-D agency or custodial parent/spouse himself/herself

Modifiable Awards
-Typically NOT modifiable
-Lump sum
-Even when payable in installments
-Rehabilitative support
-Reimbursement support
***Good possible issue for exam. Even if order is modified or terminated, these support
awards will generally always remain the same.

Step 2
-Typical triggers:
-Death of obligor
-Sudden disability or loss of job by obligor
-Remarriage of recipient
-Cohabitation by recipient
-Marriage of the obligor

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Step 3
Is adjustment needed?
-Prior award is now unreasonable/unfair
-Prior award is now unconscionable - UMDA
-Factor based test

Step 4
Award calculated

Waivers and Stipulations

-Parties can waive or agree to not modify spousal support
-Blum v. Koster (Ill. 2009) - IL Supreme Court held that a court could not, without an express agreement
of the parties, make spousal support non-modifiable

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 Distribution of Property in Divorce
***GOOD OUTLINE OF THE TOPICS
-Types of Distribution Systems
-Community Property
-Equitable Distribution
-All Property
-Process for Distribution
-Define item as property
-Classify property as martial or separate
-Value property
-Distribute based on legal standard

Types of Distribution Systems

-Community Property & Equitable Systems
-Dual classification of property: Marital/Community & Separate
-Martial/Community property is divided in divorce
-Community property divide equally
-Equitable system do not necessarily presume equal is equitable
-All property
-No distinction between separate and martial property
-Judge can divide up all property

Process for Distribution

-Define item as property
-Classify property as martial or separate
1.Marital/Community Property
-All property (real or personal)
-Acquired during marriage
-Through the time, effort, energy, or skill of the spouse
2.Separate Property
-Property acquired before or after marriage
-Property acquired during marriage through gift, bequest, devise or descent
-Timing of acquisition of property
-Before marriage = separate
-Usually look to legal marriage (ceremonial marriage)
-Different rules about property acquired in anticipation of marriage and cohabitation.
Courts are far more willing to include this property as part of marital property, but it
normally rests on the intent of the parties
-After marriage = separate
-Multiple approaches
-Final dissolution
-Filing of dissolution action
-Date of legal separation
-Initiation of permanent separation

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-Mingled Assets
-Approach 1: Inception of Title
-The characterization of property fixes at the time of acquisition - when title (or right to
title) is obtained
-Post-marital contribution does not equal change in character
-Recoupment of contribution
-Approach 2: Source of Funds rule
-Trace the source of funds for the purchase
-When trace isn't possible, presumption is the property is marital
-Approach 3: Transmutation
-Changing property from one state into another through agreement or action
-Contribution owed
-Example: Use separate funds to purchase property, but hold it jointly
-Example: Use both separate and martial funds to acquire new property
-Increase in Mingled Property
-Approach 1: Ratio of contribution
-Splitting appreciation in proportion to amount contributed
-Approach 2: Passive v. Active appreciation
-Active appreciation - trace
-Passive appreciation - stays with property
-Homesteads when there is an investment of non-martial property: Woosnam v. Woosnam approach
-Discussion question A; pg. 482
-P put in $5K of separate property (3K down + 2K off mortgage) = 50% of the value of
the property at the time of marriage
-She gets $10K (or 50% of the $20K value)
-THEN, split the remainder of marital property = $5K (or 50% of 10K remaining)
-P gets a total of $15K
-Discussion question B
-W had 25% interest in home at start of marriage = 25% of $30K = $7500
-After mortgage is paid off, she will take 50% of remaining
-30K - 10K - 7.5K = 12.5K to be divided
-W has 7.5K + 6250 = 13,750
-Discussion question C
-H had a 50% interest in home. 50% of $200K = 100K
-The remaining 100K
-Discussion question D
-All of the home's equity is W's nonmarital property. Her equitable interest in the home
at the time of marriage was 100%
-Discussion question E
-W has a 30% nonmarital interest in the property on the date of marriage
-100K - 70K = 30K, which is 30% of 100K
-Personal injury and Worker's Compensation
-Illinois treats Worker's Compensation and Personal Injury awards as completely martial
property
-Military Disability
-Severance and Sick/Vacation Pay
-Compensation for work in marriage or outside of marriage (future lost income)

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 -Business
-How to "divide" an asset like a business?
-If the asset is readily divisible, the court can divide the asset and order just and
equitable distribution in kind;
-The court can order the sale or liquidation of the asset and make a just and equitable
division of the proceeds of sale or liquidation;
-the court can determine the value of the asset, order distribution of the entire asset to
one of the parties, and order the recipient to pay to the other spouse a just and equitable
share of the value of the asset
-Degrees and Licenses
-Many courts treat degrees and licenses as not property at all instead of marital/separate
property. These types of property are not transferable, so it can't be subject to the division
-Consider marital contributions (or unjust enrichment)
-Consider degree when setting maintenance
-Gifts and the Engagement Rings
-Presumption are inter vivos gift, unless a specific instruction that they must be returned
-Pensions
-Governed by state law and ERISA. If state law and ERISA conflict, ERISA preempts
-Defined contribution plan
-Marital property = employee salary contribution during marriage + employer
contribution during marriage + interest
-Separate property = employee contribution from separate funds + employer
contribution for work pre and post-marriage + interest
-Defined Benefit Plan
-Look at years of service married (/ divided by )total years pension earned
-Value property
-Distribute based on legal standard
-Community Property State
-50/50 split
-Equitable Distribution
-Typically look at a variety of factors and make division based on "equity"
-Equitable Distribution Considerations
-Each spouse's contribution to the property
-Dissipation
-Value of each spouse's separate property
-Length of marriage
-Economic situation of each spouse
-Rights and responsibilities…. (few more I didn't get a chance to write down)
-Needs of each spouse
-Custodial arrangement
-Provision of maintenance (or lack of maintenance)
-Reasonable opportunity of each spouse in acquiring future assets or income
-Tax consequences
-Homesteads when there is an investment of non-martial property: Woosnam v. Woosnam approach

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 Premarital (Prenuptial) Agreements
***EXAM: WILL ONLY BE TESTING ON THE UPA, so only UPA notes will be taken
Formalities
-In writing and signed

What can be consented to?

-Property rights (including managements)
-Disposition of property upon separation, divorce, or death
-Spousal support (including waiver)
-Testamentary documents
-Death benefits
-Choice of law
-Catch-all (not in violation of public policy
-NOT child support, custody, or visitation

Enforcement: Not enforceable if…

-Not executed voluntarily
OR
-Unconscionable when executed and before execution, that party
-Not provided fair and reasonable disclosure
-Did not voluntarily and expressly waive disclosure; and
-did not have adequate knowledge
-No review for unconscionability alone
-Must show that party did not receive disclosure, did not waive disclosure and did not have
adequate knowledge of other's assets and responsibilities
-Review for unconscionability
-Not defined
-Some courts take very narrow view and only find if there is fraud, misrepresentation, or duress
-Timing
-At the time of execution (when agreement is made)

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Domestic Violence
-Civil Orders of Protection
-Broad vs. Narrow Coverage (See PPT for examples)
-States are trending more towards broad coverage
-Kinds of Harms that entitle a victim to obtain a PO (protective order)
-Physical Abuse
-Harassment
-Interference with Personal Liberty
-Sexual Assault
-Emotional or Verbal Abuse
-Willful deprivation of needs of elderly
-Kinds of protection available
-Restraining orders
-Vacate and stay-away orders
-No-contact orders
-Custody and visitation
-Protection of property
-Process for obtaining an order
-Emergency Orders of Protection
-Interim Order of Protection
-Plenary Order of Protection

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 Parentage Determination
Paternity Statutes
Paternity can typically be established through:
-Presumption
-Married at birth
-Child born with 300 days after marriage was terminated
-Marriage after birth if he was name don the birth certificate
-Signing a voluntary acknowledgement of paternity
-Being adjudicated a father in a proceeding
-Consider standing to bring proceeding
-Consider re judicata
-Adoption
-Consent in ART (artificial reproduction)

Michael H. v. Gerald D. (US 1989)

-An adulterous, natural father does not have a constitutional right to paternity over the marital
father

Frozen Embryos
-Dispute about what to do with the embryos
-Consider contracts between progenitors
-Should the progenitors be permitted to change their minds?
-Contemporaneous Mutual Consent
-Balancing of interests

Szafranski v. Dunston (Ill. App. Ct. 2013)

-The court held that the best approach was to honor the parties' own mutually expressed intent as set
forth in their prior agreements. Agreements between progenitors, or gamete donors, regarding
disposition of pre-zygotes should generally be presumed valid and binding, and enforced in any
dispute between them. If there was no advance agreement, then the relative interests of the parties
in using or not using the pre-embryos had to be weighed.

Parentage and Surrogacy

-Do adoption laws apply to surrogacy?
-Generally, not when only gestational surrogate
-Do apply when traditional surrogate
-Birth Certificates and Pre-Birth Stipulations

Johnson v. Calvert (Cal. 1993)

-When a fertilized egg is formed from the reproductive cells of a husband and wife and is then
implanted into the uterus of another woman, resulting in a child that is unrelated to her genetically,
the natural parents are the husband and wife.

Posthumously Conceived Children

-Children's Rights: Inheritance
-Laws vary between states

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 Professional Responsibility
The Attorney-Client Relationship
-Working with Unrepresented Parties
-Speaking with unrepresented parties
-Advise them to get counsel
-Make sure they understand you don't represent them and you are NOT neutral
-Make sure they understand you cannot offer legal advice
-Conflicts
-Generally cannot represent both parties, unless the jurisdiction allows it
-Best practice is for each party to have their own legal counsel
-Collaborative Lawyering exception
-Improper Relationships
-Sexual relations with clients
-Not permitted, unless relationship began before the representation
-The "Challenging" Clients
-The Amorous Client
-In relation to the client:
-Do not meet with the client outside of the legal relationship or outside of office or
court
-Do not do personal errands for the client
-Do not let yourself become the "rescuer." You are righting a wrong, but you should
not be the object of affection
-In relation to yourself:
-Be forewarned if you find yourself indirectly giving the client money by reducing your
fee or other standard costs
-Don't buy the client personal gifts
-Undercut fantasizing about riding off into the sunset with this person
-The Dictator
-In relation to your client:
-Do not accept idealization of yourself. Present yourself as confident in your abilities,
but always communicate that family law is a process of compromise with all parties
-Do not meet alone with this person outside of the legal framework or your office
-Meet with your client with another colleague
-Gently resist the client's tendency to see things in an all or nothing manner. Say
something like, "It may be a little more complex than that."
-In relation to yourself:
-Be forewarned if the client comes to you with a string of fired lawyers
-Resist your own inclination to view yourself as "the best" v. one of the best
-Free yourself from the belief that you have to be able to help every potential client that
consults you
-When choosing an office, take into account your security and privacy as well as
advertising your services
-Don't take calls from family when with these types of clients. Keep pictures put away.

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Fees
-Cannot collect contingency fees in any domestic relations matter
-Exception: Post-judgment balances due because contracts do not implicate the same policy
concerns
-Fees available:
-Retainers
-Advances
-Never commingle with your own funds
-Keep in a client trust account
-Notify client when work is done before withdrawing
-Unearned fees must be returned
-Hourly rates
-Fee shifting
-UMDA - a court may order one party to pay the other party's reasonable attorney fees
-Have a clear written contract explaining fees
-Receive a retainer in advance and place it in an IOLTA account
-What to do when clients don't pay?
-Withdraw or represent
-Need client consent or court approval
-If seeking withdrawal from court, must notify client first

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