Family Law Outline

Nontraditional Families

 The state is limited in its ability to intrude on the family unit, basic family law principle
o See U.S. Dept. of Ag. v. Moreno (holding that a provision of the Food Stamp Act that
required individuals living together in one home to be related to be eligible for
assistance as a household, because the “unrelated persons” provision was an irrational
classification).
o See also Moore v. City of East Cleveland (holding that zoning ordinances limiting
occupancy of a dwelling unit to members of a single family is unconstitutional under the
Due Process Clause of the constitution—as applied to a grandmother housing her
grandson; the choice of relatives in a close degree of kinship may not be denied by the
state).
 The state can establish rational differences (ex: cohabitation vs. marriage)
o See Marvin v. Marvin (holding that in CA, unmarried cohabitants can make
express/implied contracts with each other unless in exchange for sexual services)
 Courts will imply contracts based on the conduct of the parties

Privacy

 Again, privacy is a cornerstone principle of family law

 In general, state interference in the family unit is kept to a minimum, because privacy is a
central concern
 Right to Privacy:
o See Griswold v. Connecticut (holding that the penumbras of various Bill of Rights
Amendments imply a right to privacy, and therefore that the regulation of
contraceptives should be done at the manufacture/sale level, and cannot sweep so
broadly as to regulate individuals)
 First Amendment—freedom of private association
 3rd Amendment—prohibition on quartering soldiers in the home; implies an
assumption of a right to privacy
 4th Amendment—freedom from unreasonable searches
 These enumerations create zones of privacy, including the home/marriage bed
o See Eisenstadt v. Baird (holding that the state does not have the right to regulate
individuals’ family planning; right extends to married and unmarried people; that the
decision as to whether or not to have children is a matter “so fundamentally affecting a
person that it should be free from governmental intrusion)
 Rights of married and unmarried people must be the same
o Pierce v. Society of Sisters (holding that parents have a right to direct their child’s
upbringing and education; this includes choosing whether to send them to public or
private school).
o Meyer v. Nebraska (holding that the 14th Amendment guarantees individual liberty,
includes a right to acquire knowledge).
o Burwell v. Hobby Lobby (now all employers with religious or moral objections have the
right to exclude contraceptives from their healthcare plans).
  Right to Privacy within a Family
o Wives v. Husbands—See Planned Parenthood v. Casey (holding that a Pennsylvania
abortion law restricting abortions for married women without the consent of their
spouse was unconstitutional; a husband has no enforceable right to require a wife to
advise him before exercising her personal choices).
o Children v. Parents—In re Doe preserves a parents’ rights to have a say in their child’s
life; however as pertains to abortions, Bellotti requires that states have judicial bypass
procedures for pregnant minors in states that require parental consent for an abortion
 All states with parental involvement laws have a judicial bypass procedure
 Bellotti requirements: pregnant minor must prove either 1) she is mature
enough and well enough informed to make her abortion decision independently
of her parents’ wishes, or 2) that an abortion would be in her best interests
 4 factors for judicial bypass: 1) the procedure must afford the minor to
demonstrate that she is sufficiently mature to make an informed decision
without regard to her parents’ wishes, 2) the abortion procedure must be
authorized if it is in the best interests, even if factor 1 isn’t proven, 3) the bypass
procedure must preserve the minor’s anonymity, 4) the bypass proceedings
must be expedient enough to allow an effective opportunity to obtain the
abortion.
 The Liberation of Privacy
o See Lawrence v. Texas (states cannot criminalize homosexuality; personal relationships
are private choices not regulable by the state).
 Violates the Due Process Clause of the 14th Amendment
Getting Married

 Premarital Controversies
o Breach of Promise to Marry; See Rivkin v. Postal (holding that (in Tennessee), promises
to marry must be written, and cannot be joined with other claims for damages).

 New York: NY CLS Civ. R. § 80-a (2005). The rights of action to recover sums of
money as damages for. . . breach of contract to marry are abolished.  No act
done within this state shall operate to give rise, either within or without this
state, to any such right of action. No contract to marry made or entered into in
this state shall operate to give rise, either within or without this state, to any
cause or right of action for its breach.
o Gifts in Contemplation of Marriage; See Campbell v. Robinson (holding that engagement
rings are conditioned on a marriage taking place, and are  revocable if the marriage
does not take place, unless the giving party tells the recipient to keep it; party asserting
that a ring is an engagement has the burden of proof).
 New York: NY CLS Civ R. §80-b: Nothing in this article contained shall be
construed to bar a right of action for the recovery of a chattel, the return of
money or securities, or the value thereof at the time of such transfer, or the
rescission of a deed to real property when the sole consideration for the
transfer of the chattel, money or securities or real property was a contemplated
marriage which has not occurred, and the court may, if in its discretion justice
 so requires, (1) award the defendant a lien upon the chattel, securities or real
property for monies expended in connection therewith or improvements made
thereto, (2) deny judgment for the recovery of the chattel or securities or for
rescission of the deed and award money damages in lieu thereof.
o New York: NY CLS Civ R. §80-a: The rights of action to recover sums of money as
damages for alienation of affections, criminal conversation, seduction, or breach of
contract to marry are abolished. No act done within this state shall operate to give rise,
either within or without this state, to any such right of action. No contract to marry
made or entered into in this state shall operate to give rise, either within or without this
state, to any cause or right of action for its breach.
 New York Regulation of Premarital Agreements: (DRL §236; Gottlieb v. Gottlieb; Christian v.
Christian)
o DRL §236(3): an agreement by the parties made before or during the marriage is
enforceable where:
 1) it is in writing
 2)subscribed by the parties
 3)acknowledged or proven in the manner required to entitle a deed to be
recorded
 And it may include:
o 1) a contract to make a testamentary provision of any kind, or a
waiver of any right to elect against the provisions of a will;
o 2) provision for the ownership, division, or distribution of
separate and marital property;
o 3) provision for the amount and duration of maintenance or
other terms and conditions of the marriage relationship, subject
to the provisions of section 5-311 of the general obligations law,
and provided that such terms were fair and reasonable at the
time of the making of the agreement and are not
unconscionable at the time of entry of final judgment; and
o (4) provision for the custody, care, education, and maintenance
of any child of the parties, subject to the provisions of section
two hundred forty of this article.
o See also Christian v. Christian (holding that premarital or separation agreements are
void where there is manifest unfairness AND overreaching).
 Husband and wife have a fiduciary duty to each other; must make agreements
in good faith
o See also Gottlieb v. Gottlieb (defining overreaching as including fraud, deception,
concealment of facts, misrepresentation, cunning, cheating, etc., agreements are invalid
when there is overreaching + manifest unfairness).
 Prenups only viewed as unconscionable if the inequality is so strong and
manifest as to shock the conscience and confound the judgement of any person
with common sense.
 Constitutional Limits on State Regulation of Entry into Marriage
 o See Loving v. Virginia (finding that state statutes preventing marriage between persons
based solely on racial classifications violate the Equal Protection and Due Process
Clauses of the 14th Amendment, because distinctions that rest solely on race are odious
to free people, requiring the strictest scrutiny, and the Due Process Clause establishes
the freedom to marry as a vital personal right).
o See also Zablocki v. Redhail (finding a state statute prohibiting those w/child support
arrears from marrying without court permission violates the Equal Protection Clause;
the Due Process Clause establishes a universal right to marry, barring classes of people
from doing so interferes with their exercise of that right)
 State regulations on marriage cannot interfere directly and substantially with
the right to marry
o See Turner v. Safely (similarly, restricting right to marriage for incarcerated people is
unconstitutional)
 State Regulation of Entry into Marriage—Substantive Restrictions:
o First: Lex Loci and NY DRL §283: a marriage valid in one state will be valid in all states
unless it violates the strong public policy of another state with the most significant
relationship to the spouses.
 Marriage that satisfies the requirements of the state it was contracted in is valid
everywhere
o Substantive Restrictions (Sexuality):
 See Obergefell v. Hodges (finding that given that the right to marry is protected
under the DPC; and Lawrence v. Texas establishes a right to enjoy intimate
associations, and the state policies for preserving marriage—safeguarding
children/families, social order—and because states attach benefits to marriage,
banning same-gender marriage leaves them without access to benefits,  state
restrictions on same-gender marriage unconstitutional; the state cannot
demean individuals’ existence or control them by regulating their private lives).
 See also: Masterpiece Cakeshop (holding that religious objections do not allow
business owners to deny protected persons equal access to goods and services
under a neutral and generally applicable public accommodation law; violations
of that kind of law must be assessed with neutrality).
 Business owner won in this instance because there was no neutrality
o Substantive Restrictions (Incest)
 In re Adoption of M: (holding that incestuous marriages are void (i.e. as though a
marriage never took place because invalid from inception); except in this case
where an adoptive daughter and father entered a relationship post-
emancipation, and a marriage was necessary to legitimize the baby (best
interests of child) and to remove the grandfather and father classification on the
father)
 Voidable marriages are valid until declared otherwise (age; bigamy)
o Substantive Restrictions (bigamy)
 See Collier v. Fox (holding that it is within the legitimate scope of civil
government power to determine whether monogamy or polygamy to be the
social order of a jurisdiction)
 o Age
See Kirkpatrick v. District Ct. (finding a policy against limiting rights to marriage,
as long as statutory requirements are fulfilled)
o State of Mind Restrictions (Fraud and Duress)
 See Blair v. Blair (no fraud found; outlines test for fraud as 1) Representation, 2)
Falsity of the representation, 3) Materiality of the representation, 4)
Representing party knows of the falsity, 5) Intent, 6) Other party does not know
of the falsity, 7) Reliance on the falsity, 8) Right to rely on the falsity, 9) injury)
o New York Substantive Restrictions:
 NY DRL §5-a marriage is incestuous and void whether the relatives are
legitimate or illegitimate between either an ancestor and a descendant, a
brother and sister of either the whole or half blood, or an uncle and niece or an
aunt and nephew
 NY Pen. Law §255.15- A person is guilty of bigamy when he contracts or
purports to contract a marriage with another person at a time when he has a
living spouse, or the other person has a living spouse. Bigamy is a class E felony.
 NY DRL §6-a marriage is absolutely void if contracted by a person whose
husband or wife of a former marriage is living unless such marriage has been
dissolved or annulled
 NY DRL §7-voidable marriages: 1) one of the parties is under the age of legal
consent, 2) is incapable of consenting for want of understanding, 3) incapable of
entering into the married state from physical cause, 4) consent was by reason of
force, duress, or fraud, or 5) one of the parties has been incurably mentally ill
for a period of five years or more.
 NY DRL §140- Action for judgment declaring nullity of void marriages or
annulling voidable marriages: Former husband or wife living, Party under the
age of consent, Consent by force, duress, or fraud; a marriage cannot be
annulled if the parties were over the age of consent and freely cohabited with
the other party as husband and wife
 NY DRL §15-a-Prohibits the marriage of minors under the age of 18
 State Regulations of Marriage-Procedural Restrictions:
o Licensure and Solemnization—essentially states may have statutory requirements
validating marriage, but these must explicitly make non-conforming marriages invalid
(Carabetta v. Carabetta).
 Justifications for licensure requirements: 1) aid in enforcing marriage laws by
requiring persons not qualified to marry for reasons of age, health, or existing
marital status to disclose that information, 2) serve as public health measures by
preventing marriages that would be damaging to the health of one spouse or
would produce unhealthy children, 3) licensure serves as proof the marriage has
occurred.
o NY Licensure Laws:
 NY DRL §11-describes who a marriage can be solemnized by
(clergyman/minister of any religion, current or former governor/mayor, city
magistrates, a member of New York state legislature, provided that such person
 shall not charge or receive a fee, judges, tribal judges, a signed marital contract
w/witnesses, acknowledged before a judge)
 NY DRL §13- requires marriage licenses, within a 60-day period before the
marriage can be performed
 NY DRL §13-b-marriages shall not be solemnized within 24-hours after the
issuance of the marriage license, or after 60 days from issuance of the license
 Procedural Variations
o Marriage By Proxy- at least one party is represented by an agent; most states don’t
allow double proxy marriages, but some offer them with one party; but some do
especially for deployed servicemembers. Federally, these are recognized by allowing
federal survivorship benefits to be collected but does not allow for immigration rights
without subsequent consummation. (Not permitted in New York)
o Confidential Marriage-(California only state that offers this)—Promotes marriage of
cohabitating couples while not requiring them to procure a marriage license or filing a
health certificate; only requires them to file a marriage certificate not open to public
inspection. Names, dates, birthdates, etc. are all hidden. (personal reasons (outing),
celebrities, dv/abuse survivors, don’t need witnesses, license provided on the spot, no
waiting in line, avoid spam callers/telemarketers/junk mail, media—which can be good
for public officials and law enforcement).
o Common Law Marriage
 agreement, cohabitation, holding out as husband and wife, intent to enter a
marriage, capacity to marry
 New York will recognize a common law marriage entered into validly in another
state under lex loci principles (Jennings v. Hurt)
o Putative Spouses
 An apparently valid marriage, entered into in good faith on the part of at least
one of the partners, but that is legally invalid due to a technical impediment,
such as a preexistent marriage on the part of one of the partners.

Regulation of Marriage—Marital Property Regimes, Names, Roles and Responsibilities

 Common Law Disabilities (Wife) and Responsibilities (Husband)

 Wife’s real property – the husband acquired an estate in the wife’s real property
for the duration of the marriage. His interest (jure uxoris) entitled him to sole
possession and control of any real property that the wife owned in fee –
whether acquired by her before or after the marriage. The husband could
alienate the wife’s real property without her consent
 Dower – Primary protection of the wife from the husband during the marriage;
her life estate of one-third of any land of which the husband seised in fee at any
time during the marriage. The husband could not bar her dower right without
her consent; comes into the right if she survives her husband
 Wife’s personal property – the wife had no right to possess personal property;
whatever she owned before marriage or acquired after became her husband’s;
lack a right of testamentary disposition
 Wife’s lack of rights to husband’s personal property – Husband had the power
of disposition (inter vivos or by will) over his personal property. All his personal
 property, and his wife’s property, was subject to his creditors; the wife’s
necessary clothes was the exception
 Husband liability – the husband was liable for the wife’s premarital debts, as
well as for torts she committed before or during the marriage
 Wife’s contracts – A wife could not execute contracts except as her husband’s
agent
o Managerial Rules
 Husband as master of the household was an entrenched common law principle
 Three facially gender-neutral rules emerged in response to the
unconstitutionality of male managerial rules:
 Extension of the separate property philosophy to link management to
the source of earnings;
 Joint control (requiring consent of both spouses for community
property transactions)
 Marital Property Regimes
o Common Law Approach/Equitable Distribution (NY):
 Husband and wife own all property separately
 During the marriage, property belongs to the person who acquired it
 Equal managerial control over property
 Equitable distribution on divorce
o Community Property Approach (Arizona, California, Idaho, Louisiana, Nevada, New
Mexico, Texas, Washington, Wisconsin): (Spanish colonies)
 Marriage as an entity of its own—the community; and then each spouse is taken
individually as well.
 Joint ownership of some property
 Undivided, one-half interest in all property acquired by the efforts of either
spouse during marriage
 Separate property includes: property brought to the marriage (bought before
the marriage), and property acquired by a spouse during the marriage by means
of a gift or inheritance.
 Duty of Support
o See McGuire v. McGuire (doctrine of non-intervention; doctrine of necessaries)(husband
only required to supply necessities; as long as the home is maintained and the parties
are living as husband and wife it may be said that he is legally supporting her; food,
shelter, clothing, medical care)
 Names
o See Melbourne v. Neal (party requesting the name change has the burden of proof to
show by a preponderance of the evidence that the best interests of the child are met by
effecting a name change; gender-neutral, family-specific, child-centered; relevant
factors include how long and widely the child has been known by their current name,
whether the current name is embedded in their identity, view of the child, effect of a
name change on safety and well-being).
o See also Pavan v. Smith (holding that state statutes requiring a mother’s male spouse to
be listed on her child’s birth certificate that are not extended to same-sex couples are
unconstitutional because it treats same-gender couples differentially.)
 o See also NY DRL §15- Every person has the right to adopt any name by which he or she
wishes to be known simply by using that name consistently; no obligation for spouses to
change their names on marriage; one or both parties may elect to change the surname
by which they wish to be known after solemnization to either; the surname of the other
spouse.
 Torts and Evidentiary Privileges
o See Ammarell v. France (holding that criminal conversation/alienation of affection claims
are not unconstitutional, because liberty interests extend only as to those cases where
private, intimate conduct is regulated without injury to person or abuse of an institution
the law protects)
 Requires genuine love and affection, alienation of the love and affection, and
wrongful conduct by the defendant to do so
 Not permitted in NY: See New York: NY CLS Civ R. §80-a: The rights of action to
recover sums of money as damages for alienation of affections, criminal
conversation, seduction, or breach of contract to marry are abolished. No act
done within this state shall operate to give rise, either within or without this
state, to any such right of action. No contract to marry made or entered into in
this state shall operate to give rise, either within or without this state, to any
cause or right of action for its breach.
o Interspousal immunity—existed at common law and precluded tort suits; now there is
abrogation of that immunity for intentional and negligent acts, and entirely in some
states
 See State v. Gutierrez (abolishing spousal communication privilege in New
Mexico; wouldn’t have applied in this case anyways because the testimony was,
in the instance of the first ex-spouse, based on first-hand observations, and the
second they couple weren’t married yet)
 Arguments in favor: Encourage spousal intimacy through the
exchange/enjoyment of sharing each other’s confidences, Privacy
arguments, Discomfort of one spouse testifying against another
“natural repugnance”, communication—communications during
marriage, lasts even after divorce, Adverse spousal testimonial
privilege—only lasts the duration of the marriage (terminates on
divorce); spouses can decline to testify adversely against the other
during a criminal trial
 Arguments Against: The role male domination/patriarchy has
abused this privilege, less modern emphasis on privacy, Feelings are
just feelings and shouldn’t impede court functions, “the occasional
compulsory disclosure in court of even the most intimate marital
communications would not in fact affect to any perceptible degree
the extent to which spouses share confidence.”

Intimate Partner Violence

 IPV pits the need for state intervention against respect for family privacy, raising questions again
about the appropriate relationship of the state to the family and its members
 This includes teen Dating Violence
o See Emily K v. Luis J (NY Fam. Ct. Act. §812(1) only applies jurisdiction over those who
are a member of the same family or household, which the court generally interprets to
include “persons not related by consanguinity or affinity and who are or have been in an
intimate relationship;” holding that intermittent dating relationships fall in the reach of
the statute, identifies the nature or type of relationship, the frequency of interaction
between the persons, sexual intimacy, and the duration of the relationship).
o See also NY Soc. Serv. Law §459-a: a victim of domestic violence means any person over
the age of sixteen, any married person or any parent accompanied by his or her minor
child or children in situations in which such person or such person’s child is a victim of
an act which would constitute a violation of penal law, IF
 The act or acts have resulted in actual physical or emotional injury, AND
 The act or acts was done by family or household members
 Persons related by consanguinity or affinity
 Persons legally married or formerly married to one another or have a
child in common
 Unrelated persons who are continually or at regular intervals living in
the same household
 Persons in an intimate relationship, determined by above factors.
 IPV victims have both civil and criminal remedies
o Order of Protection (civil)
 A civil order that is issued by a court to a petitioner against a respondent that
directs a person to do or refrain from doing certain acts.
 Eligibility for these orders determined by the states, usually only for
family/intimate partners
 These orders can serve several functions:
 Prohibit a person from threatening or harming the petitioner
 Entering their home
 Coming within a certain distance of the petitioner and/or their children
 Coming to the petitioner’s home, work, or school
 Contacting a person
 Purchasing or owning firearms
 Etc.
 Can be temporary or permanent
 Violations are usually a crime in most states; usually misdemeanors, but some
states treat repeat violations or those involving a weapon as felonies
o Criminal Justice Response
 Violation of civil protection usually a crime
 See NY Pen. Law §215.50 (making a person guilty of criminal contempt
in the second degree for intentional disobedience of any court mandate
(which includes protective orders)
 Victims also have access to the self-defense defense if they kill/injure their
abusers
  See Hawthorne v. State (holding that victims of IPV should be allowed
expert testimony at trial to testify to their experience of BWS, where (1)
the expert is qualified to give an opinion on the subject matter, (2) the
state of the art or scientific knowledge permits a reasonable opinion to
be given by the expert, and (3) the subject matter of the expert opinion
is so related to some science, profession, business, or occupation as to
be beyond the understanding of the average layman.

 Law Reform
o However, there are still issues w/the criminal justice response to IPV
 See Castle Rock v. Gonzalez (where Gonzalez’s husband violated a protective
order, and kidnapped and killed his children because the police didn’t respond
to the violation properly; the court found that Gonzalez did not have a property
interest in enforcement of the restraining order that the town deprived her of
without Due Process, because due process does not protect benefits if
government officials may grant or deny that benefit in that discretion).
 Now, many states—including NY—have responded to this by developing
mandatory arrest policies
o New York State has “mandatory arrest” for domestic violence
cases. This means that in an intimate partner relationship the
police must make an arrest when:
 A felony is committed
 A person disobeys an order of protection by making
contact when there is a stay away order
 A person disobeys an order of protection by committing
a family offense crime (see Domestic Violence Acts)”
 See also People v. Harris (issues w/state response to marital rape)
 Facts: Husband rapes wife
o Husband is recorded doing so
o Husband was convicted, in part because of the admittance of
the recording and because of the admittance of evidence of
prior acts of abuse
 Issue: Did the court err in admitting evidence of his prior acts of abuse in
the rape case?
 Holding: No
 Rule: trial court has discretion to exclude evidence if its probative value
is substantially outweighed by the probability that its admission will
create a substantial danger of undue prejudice, or so inflame the jury
that they will make their decision not on the evidence presented as to
the charged offenses, but rather on an emotional response to the
defendant’s commission of other acts or crimes
 Reasoning:
o The eight prior acts admitted into evidence were not excessive
 o They were also not cumulative, as they showed different ways
Harris exerted control over the victim
o Not reasonably likely that the evidence “so inflamed” the jury
especially because they had audio evidence of the rape and
because the rape was more egregious than the previous acts.
 Notes:
o During their divorce proceeding, the court ordered the wife to
pay the husband spousal support
 Now, in CA, domestic violence precludes the receipt of
spousal support, specifically where one spouse is
convicted of a sexual felony against the other
 In NY, DV is just a factor when considering whether
spousal support should be awarded

Divorce

New York
Matrimonial actions done in Supreme Court
DRL 140—Governs Annulments
DRL 170--Governs actions for divorce, lists most of the grounds, including:
Cruel and Inhuman Treatment
 5-year statute of limitations
 High burden of proof
 Caselaw
 Fear for impact on health, safety, and well-being
 Must show impact
Imprisonment
 Must have been 3 years at the time of the action
 Break in the 3 years of confinement, then no ground for divorce
 Also not available if you marry someone while they were incarcerated
Abandonment
 minimal pleading requirements
 includes constructive claim; spouse still physically there but emotionally abandoned the
relationship
Separation
 Written agreement between the parties
 By decree (Judgement of separation)
 Parties must be separated for one year to use this ground.
 Must also abide by the agreement fully
Adultery
 -DRL 171
 -Unless there was:
o -procurement with the connivance of the plaintiff/petitioner (clean hands)
o -forgiveness
o -5 year stat. lim.
o -plaintiff is also guilty of adultery
o -Need corroboration for confession; admission is not enough
 o -Must also prove motive and opportunity
o -Direct evidence not required if circumstantial evidence proves motive and opportunity.
 After separation but before divorce=still can find fault
IN SOME STATES ADULTERY=A FELONY/BAR TO SPOUSAL SUPPORT
Pleadings:
 -File a summons with the notice designated in DRL 232, or a summons and verified complaint as
provided in CPLR 304
 -Includes the action is being filed, and by whom, and the relief sought
 -Purpose is to give advance written notice to the opposing side
 -Served personally or request alternate service
 -Seek default judgement if not answered within the statutory period
If Competing Grounds:
-The fault is determined by which party's conduct was the proximate cause of the
deterioration/divorce

-->Since 2010, there can be No-Fault divorce if there is an irretrievable breakdown for a period of at
least 6 months
Fault-Based Grounds for Divorce
Adultery
 See Brown v. Brown:
o Proof of adultery as a ground for divorce must be “clear and positive” and the infidelity
must be established by a clear preponderance of the evidence
o “Sufficiently definite to identify the time and place of the offense and the circumstances
under which it was committed.”
 Other Notes on Adultery
o The military still punishes people who commit adultery/subjects them to discipline.
Cruelty
 See Anderson v. Anderson
o Wife falsely accused husband of having affairs publicly
o Does this qualify as cruel and inhuman treatment?
 Yes, Unless they are “honestly made claims, later found to have been
erroneous.”
 Other Notes on Cruelty:
o Courts have gradually expanded the definition to include mental cruelty that is extreme
and/or sufficiently severe as to threaten safety or health or make continued
cohabitation unreasonable or insupportable.
Desertion
 See Reid v. Reid (holding that “Proof of an actual breaking off of matrimonial cohabitation
combined with the intent to desert constitutes desertion as grounds for divorce.” Reasons other
than intent to desert will not give grounds to divorce.”
o Elements:
 Cessation of cohabitation
 Without cause or consent
 With intent to abandon
 For the statutory period
 NOTE: Subsequent intent to desert also counts
  NOTE: Constructive desertion constitutes intolerable conduct by one
spouse toward an innocent spouse that causes the innocent spouse to
leave the marital abode.
Defenses
Recrimination
 See In the Matter of Ross (holding that statutory grounds for divorce because of adultery require
one of the parties to be innocent, so if the party alleging adultery commits adultery, the
responding party can use that as a defense).
Condonation
 See Gerty v. Gerty (holding that condonation may be express or implied, involves forgiveness of
the marital wrong on the part of the wronged party, but does not apply if the party continues
the conduct after the condonation, unless the wronged party condones the continued conduct).
 See also Srivastava v. Srivastava (holding that resumption of cohabitation for any considerable
period of time shows an intention to forgive).
Other Defenses: Connivance, Collusion, Consent (Self-explanatory)

No-Fault Divorce (Dissolution of Marriage)

CA Family Code
 §2310—Grounds for Dissolution
o Irreconcilable Differences
o Permanent legal incapacity to make decisions (insanity)
 §2311—Irreconcilable Differences Defined
o Substantial reasons for not continuing the marriage and which make it appear that the
marriage should be dissolved.
 Alimony not tied to fault
 Community division of property
o Lawyers will determine which percentage of the family home is separate property and
which percentage belongs to the community and allocate the value accordingly
See Also CA Family Code §70
 Date of separation means the date that a complete and final break in the relationship has
occurred, as evidenced by the following:
o Spouse has expressed to the other spouse the intent to end the marriage
o The conduct of the spouse is consistent with the intent to end the marriage
o All relevant evidence
o Intended to abrogate In RE Marriage of Davis
o  Parties can be considered “separated” even if they live in the same house.
Legal Separation
 Not free to remarry, but released from cohabitation
 May be required in some jurisdictions before a divorce is granted
UMDA—Uniform Marriage and Divorce Act
 §305—Irretrievable Breakdown; if both parties by petition or otherwise have stated under oath
or affirmation that the marriage is irretrievably broken.
New York
 No-Fault Divorces Defined by DRL §170:
o Separation after judicial decree/judgement (for one or more years w/satisfactory proof
of performance of terms and conditions of the decree)
 o Separation on written agreement (for one or more years w/satisfactory proof of
performance of terms and conditions of the decree)
o Irretrievable breakdown for a period of at least 6 months.
 Community Divided on Equitable Distribution Model
o Cannot split degrees
o Pets allocated based on a best interests of the pet analysis NY Dom Rel §236
Living Separate and Apart
 See Bennington v. Bennington (holding that when the husband and wife have, without
interruption for two years, lived separate and apart without cohabitation; must be a cessation of
marital duties and relations; like taking care of each other when sick, etc.).
What is the Role for Fault in No-Fault Regimes?
 See Feltmeier v. Feltmeier
o Essentially fault has been converted into tort liability
o Can sue the other spouse for IIED
 Extreme and outrageous conduct, intent to inflict severe emotional distress, or
knowing that there is a high probability of severe emotional distress, and the
conduct does cause severe emotional distress.
o Continuing tort rule applies in cases of IIED; makes marital complaints of domestic
violence timely under statutes of limitations in order to make the batterer be held to
account for “all of his actions” (citing Cusseaux v. Pickett).
Access to Divorce
 See Boddie v. Connecticut (holding that a state may not, consistent with the obligations imposed
on it by the DPC of the Fourteenth Amendment, preempt the right to dissolve a legal
relationship without affording all citizens access to the means it has prescribed for doing so).
 waiver process for filing fees must exist for indigent appellants
 Pro Se Divorce
o No-faultmore pro se divorces
 This poses access issues; as the cases become more complex and the financial
aspects needs to be resolved, pro se litigants become less and less equipped to
have a satisfactory outcome.
 Religious Obstacles Surrounding Divorce
o Judaism—gets and husband’s consent
 Bars wife from remarriage, and state has a policy against that
 DRL §253—as used in the sworn statements prescribed by this section, barrier
to remarriage includes, without limitation, any religious or conscientious
restraint or inhibition, of which the party required to make the statement is
aware, that is imposed on a party to a marriage under the principles held by the
clergyman or minister who has solemnized the marriage, by reason of the other
party’s commission or withholding of any voluntary act.
 I.E. parties to a divorce must make a statement affirming that there are
no further barriers to remarriage before the courts grant them a
divorce.
 Issues for Divorce Counsel:
 Role in handling the emotional aspects of divorce
 Sexual ethics issues-Iowa Sup. Ct. Att’ny Disciplinary Board v. Morrison—majority approach
prohibiting attorney-client sexual relationships.
  Conflicts of Interest (If the lawyer represents a Husband and a Wife in their business, and
then one party against the other in a divorce)(See Florida Bar v. Dunagan).
 Over-counseling the client on emotional aspects=overbilling, more ethics issues (Moses)
Divorce Jurisdiction
 See In Re Marriage of Kimura
 Facts:
o Parties were married in Japan in 1965, both Japanese citizens, with two adult children
o Parties lived a part since 1973
o Ken files for a divorce mediation proceeding in Japan in 1988, but withdrew from that
proceeding, because he could not attend due to his work
o Files again in Iowa later that year, after having lived there for more than a year
o Alleges a breakdown of the relationship
o Wife asserts a lack of SMJ and personal jurisdiction
o Court grants the divorce
o Wife appeals
 Issue: Was there jurisdiction?
 Holding: If the petitioner in a divorce proceeding is domiciled in the state, there is jurisdiction
 Reasoning:
o The res or status of a marriage follows the domiciles of the spouses, so the courts have
jurisdiction over the marriage status wherever one or both of the spouses are domiciled
o Also Rights of Dr. Kimura—he wouldn’t have access to a divorce if denied jurisdiction
 Iowa is asserting its interests in the marriage status of its parties
o But cannot adjudicate the incidents of the marriage
 Rule: Domicile continues to be the basis for a court’s jurisdiction to grant a dissolution of a
marriage decree.
Other Rules:
 Transitory presence can satisfy due process even when the defendant lacks substantial contact
with the forum (Burnham)
Sosna v. Iowa
 Rule: States require a divorce petitioner to reside in the forum state for a period of time, and
they don’t violate Boddie (because it only delays access to divorce, doesn’t deny it) and doesn’t
discriminate.
Ankenbrandt v. Richards
 A is seeking monetary damages in federal court against defendant for his physical and sexual
abuse of their children
 Meets diversity jurisdiction requirements and amount in controversy requirement
 Defendant wants to dismiss the lawsuit under the domestic relations exception to diversity
jurisdiction
 Issue: is there a domestic relations exception?
 Holding: yes, but it only covers cases involving the issuance of divorce, alimony, or child custody
decree.
 Reasoning for Exception: because those cases involve matters peculiarly of state law rather than
federal law.
Note: §230 NY DRL—Delineates NY residency requirements (2-year residency requirement, or 1 year if
other conditions are satisfied).

Financial Consequences of Dissolution

Spousal Support

 See NY DRL 236 (allows for spousal support; calculated based on the income of the parties and
the duration of the marriage and equitable distribution, as well as other factors, including those
listed below)
 Rehabilitative; restores income lost because of voluntary unemployment to raise children;
Temporary, permanent
o Length of Marriage Percentage:


o Other Factors:
 the age and health of the parties;
 the present or future earning capacity of the parties, including a history of
limited participation in the workforce;
 the need of one party to incur education or training expenses;
 the termination of a child support award before the termination of the
maintenance award when the calculation of maintenance was based upon child
support being awarded which resulted in a maintenance award lower than it
would have been had child support not been awarded;
 the wasteful dissipation of marital property, including transfers or
encumbrances made in contemplation of a matrimonial action without fair
consideration;
 the existence and duration of a pre-marital joint household or a pre-divorce
separate household;
 acts by one party against another that have inhibited or continue to inhibit a
party’s earning capacity or ability to obtain meaningful employment. Such acts
include but are not limited to acts of domestic violence as provided in section
four hundred fifty-nine-a of the social services law;
 the availability and cost of medical insurance for the parties;
 the care of children or stepchildren, disabled adult children or stepchildren,
elderly parents or in-laws provided during the marriage that inhibits a party’s
earning capacity;
 the tax consequences to each party;
 the standard of living of the parties established during the marriage;
  the reduced or lost earning capacity of the payee as a result of having forgone
or delayed education, training, employment or career opportunities during the
marriage;
 the equitable distribution of marital property and the income or imputed
income on the assets so distributed;
 the contributions and services of the payee as a spouse, parent, wage earner
and homemaker and to the career or career potential of the other party; and
 any other factor which the court shall expressly find to be just and proper.
 See Mani v. Mani (holding that to the extent that marital misconduct affects the economic
status quo of the parties, it may be taken into consideration in the calculation of alimony.)
o Except: In cases of “egregious fault” (i.e. like in CA, barring alimony if the dependent
spouse had attempted murder)
o Egregious fault=conduct that by its nature is so outrageous that it can be said to violate
the social contract, therefore society should not be okay with continuing to keep an
economic bond between the parties.
 Here, fault is only a factor in that it determines whether or not alimony should
be allowed at all.
 See also Wolfe v. Wolfe
o Facts:
 There is disputed property in a Smith Barney account set up by Husband’s father,
with a trust from which the Husband periodically drew from to supplement the
parties’ income, including to finance the acquisition of the parties’ farm and the
construction of their home, to fund their retirement accounts, etc. (worth 10.3
million)
 Wife argues this is a marital asset
 Husband argues this is a premarital asset (it originated prior to the marriage in a
devise by Husband’s grandfather.
o PH: trial court awarded wife 2.6 million in assets, and the husband 2.4 million in assets,
and awarded the 10.3 million as Husband’s separate property
o Issue: Is this a marital asset? Should there be an award of spousal support?
o Reasoning:
 Inquiry 1: When the asset was acquired
 Inquiry 2: Whether and to what extent the interest in the disputed property was
acquired during the marriage
 Clearly wife did not contribute to the original devise of the asset
 Second, the appreciation in value was passive, based in the reinvestment of the
disputed property
 None of parties’ earned income was deposited into disputed account
 Husband’s interest in the disputed property is directly traceable to his premarital
interest in it
o Holding: No spousal support, but court awarded wife an additional 2 million in the
disputed property, because the parties generally made financial decisions together, wife
did not draw a salary, contributed to the practice, etc. Therefore on balance she should
receive a portion of the assets.
 See also Mennen v. Mennen (Changing Circumstances) (holding that the test for modification of
alimony based on cohabitation depends on whether that cohabitating relationship has reduced
the financial needs of the dependent former spouse, when 1) the third party contributes to the
 dependent spouse’s support, or 2) the TP resides in the dependent spouse’s home without
contributing anything toward the household expenses).
Retirement
 See Bender v. Bender (holding that an expectation interest in a pension plan, is sufficiently
concrete, reasonable, and justifiable, as to constitute a presently existing property interest for
equitable distribution).
 Attack: determine whether or not the unvested interest is property—“everything that
has an exchangeable value,” tangible or intangible.
 Time Rule: In valuing a pension for a retirement account, the court will use a time-based
formula, including such factors as the length of marriage, length of time employed,
amount in the account, how much interest accrued in the marriage, etc. Amount
allocated based on the amount put into the account during the marriage.
 QUADRO (Qualified Domestic Relations Order)—document ensures that
Courts/administration recognize that an ex-spouse has an interest in the
pension/retirement and will also be entitled to a share of the distribution.
Tax Consequences
 Alimony established on/before Dec 31, 2018, alimony payments deductible, and included in
recipient’s taxable income.
 After Jan 1, 2019, alimony payments not deductible, but not included in recipient’s taxable
income.
Degrees
 IN RE MARRIAGE OF ROBERTS: Degrees should be factored in maintenance/spousal support
payments, but not equitably distributed (because its difficult to value, based on uncertainty of
future earnings).
 In NY: POST 2016—courts are barred from considering a marital property the value of a spouse’s
enhanced earning capacity arising from a license, degree, celebrity goodwill, or career
enhancement.
o EXCEPT: enhanced earning capacity may be considered as a factor in the equitable
distribution of property (like if they contributed more to the property, or their degree
would make it easier for them to have a post-divorce job, etc.)
Dividing a Family Home:
 Jointly retain the home (tenancy in common)
 Sell and split (based either on CP (50/50) or ED (equitable distribution)
 OR: refinance the home to just one spouse
 Rule: In NY this is a discretionary determination, will be allocated equitably based on the
circumstances of the divorce. (DRL § 234)

Child Support

Child Support: NOT TAX DEDUCTIBLE FOR THE PAYOR, OR TAXABLE INCOME FOR RECIPIENT
NY DRL § 240: varying percentages of combined parental income based on number of kids (17(1 child)-
35% (5+ children)). On an income shares model (combine income, set total child support obligation of
both parents to the appropriate percent, then apportion that amount by the share of income)
 Support can include educational cost + college where the best interests suggest
 Support also can include “add-ons” like health insurance, child-care, etc.
 Support obligation goes to 21
  What is Income?: actual earnings, workers comp, disability, unemployment, social security,
pension, and other forms of income
o If paying would put payor under poverty line, or they are under the poverty line, the
obligation is $25/month
 Turner v. Turner:
o Issue: When can the factfinder apply a parenting time deviation to child support?
o Rule: When special circumstances make the presumptive amount of child support
excessive or inadequate due to extended parenting time as set forth in the order of
visitation or when the child resides with both parents equally.
o Issue 2: Whether the child support obligation covers extracurricular activities
o Rule: a portion of the basic child support obligation is intended to cover average
amounts of special expenses for raising children, including the cost of extracurricular
activities. If a factfinder determines that the full amount of special expenses exceeds
seven percent of the basic child support obligation, the additional amount should be
considered as a deviation.
 Child support determined by the income-shares model in 40 states, including NY and CA
o Income-shares model usually allows deviations for low-income folks
 Usually not sufficient
Post Majority Support
 McLeod v. Starnes
o Issue: whether requiring a parent to pay, as an incident of child support, for
postsecondary education is appropriate
o Holding: In certain limited circumstances; in such cases where children whose parents
would otherwise have paid for their college education, but for the divorce, it is
appropriate.
o Reasoning: to ensure that children of divorced families are not deprived of educational
opportunities solely because their families are no longer intact
Modification of Child Support
 Pohlmann v. Pohlmann (New Families)
o The existence of subsequent children from a new marriage should not be considered by
the court as a basis for disregarding the amount provided in the guidelines.
o Further, the income of the other parent of the subsequent children shall be considered
by the court in determining whether or not there is a basis for deviation.
o May only be raised in a proceeding for an upward modification of an existing award and
may not be applied to justify a decrease in an existing award.
o Reasoning: The state has an interest in assuring that noncustodial parents will continue
to contribute to the support of their children from their first marriage notwithstanding
their obligation to support children born during a subsequent marriage.
o NOTE: must also show a substantial change in circumstances.
 In general, modification can be effected based on a showing of substantial change in
circumstances
 Downward modification is not retroactive
 Olmstead v. Ziegler (Employment Changes)
o Rule: Voluntarily reducing one’s income may not justify a modification of child support
 o Facts: (Case where attorney dad closed his practice and started going to school, and
made no effort to make his at-divorce income)
 Incarceration=involuntary unemployment (in 40 states) may be used for a downward
modification (unless incarceration for nonpayment of child support).
Enforcement of Child Support
 Two Processes: Civil contempt/nonpayment, and criminal nonsupport
 State v. Oakley (Criminal nonsupport)
o Rule: Criminalized by statute; but in general criminal nonsupport is constituted by the
intentional failure to pay
o [this is the case where instead of incarcerating the nonpaying obligor, he was placed on
probation and would be incarcerated if he had any more children, as a condition of his
probation. The court held that this was constitutional because of the state interest in
ensuring that he did not create more child victims to his lack of support, and that since
the other remedy—incarceration—would have deprived him of that anyway, the
probation condition was not overly broad].
 Turner v. Rogers (Civil Contempt)
o Rule: The DPC does not automatically require the provision of counsel at civil contempt
proceedings to an indigent individual who is subject to a child support order, even if that
individual faces up to a year of incarceration, where the opposing parent is not
represented by counsel and the State provides alternative procedural safeguards, such
as adequate notice of the importance of ability to pay, fair opportunity to present and
dispute relevant information and court findings.
o This does not apply to proceedings where the payment is owed to the State
o The state can only impose punishment if it is clearly established that the defendant is
able to pay and has not, and may not impose punishment if it is clearly established that
the defendant is unable to pay.
 Other Enforcement Mechanisms:
o Wage withholding
o New hires registries
o Tax refund intercepts, suspension of drivers’ licenses, credit reporting, revocation of
licenses, social security/welfare intercepts.
 Jurisdictional Limits
o See Kulko v. Superior Court
 Do courts need to satisfy minimum contacts to have jurisdiction over child
support enforcement/modification proceedings?
 Holding: Yes
 Modification
o See Draper v. Burke
 States must enforce child support orders issued by another state, and may
modify them, under certain limited circumstances
 If they have jurisdiction
 And the issuing state no longer has continuing, exclusive jurisdiction of
the child support order because that State is no longer the child state of
residence or the residence of any individual contestant.
o Modification of Separation Agreements: Miles v. Miles
  If agreements made outside of court and approved in court do not specify
whether it is modifiable by the court, it is modifiable by the court
 Must prove substantial change in circumstances
 This burden applies whether the family court order emanated from a contested
hearing or a hearing to approve an agreement.
 Husband proved substantial change in circumstances because he became
disabled.
Custody

 Formerly ruled by the tender years presumption, overruled in Devine v. Devine because it
imposes evidentiary burdens on fathers, but not mothers
 Some states use a primary caretaker presumption
 Now, Child Custody determined by the best interests of the child standard
o Factors:
 Primary Caretaker
 Parental skills, strengths, health
 Ability to provide for special needs
 DV
 Work/Availability
 Child Care Plans
 Relationships with other family members
 Child’s preference depending on age, etc.
 Willingness to cooperate and encourage relationship with other parent
 There is a policy favoring joint custody (See Bell v. Bell)
 Legal vs. physical custody
 There is also a policy favoring reasonable visitation rights/parenting time, and limitations on
visitation are not usually imposed unless the judge believes that visitation might endanger the
child, generally in situations of physical/sexual abuse (Hanke v. Hanke)
 Visitation determined by best interests of the child, therefore visitation is generally not
conditioned on payment of child support, though there are occasionally exceptions where willful
and intentional failure to pay results in detriment to the child/lack of access to necessities
(Turner v. Turner)
 Jurisdiction:
o Initial Jurisdiction Determined by NY CLS Dom Rel §76
 Except as otherwise provided in section seventy-six-c of this title, a court of this
state has jurisdiction to make an initial child custody determination only if:
 this state is the home state of the child on the date of the
commencement of the proceeding, or 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 or
person acting as a parent continues to live in this state;
 a court of another state does not have jurisdiction under paragraph (a)
of this subdivision, or a court of the home state of the child has declined
to exercise jurisdiction on the ground that this state is the more
 appropriate forum under section seventy-six-f or seventy-six-g of this
title, and:
o the child and the child’s parents, or the child and at least one
parent or a person acting as a parent, have a significant
connection with this state other than mere physical presence;
and
o substantial evidence is available in this state concerning
the child’s care, protection, training, and personal relationships;
o all courts having jurisdiction under paragraph (a) or (b) of this
subdivision have declined to exercise jurisdiction on the ground
that a court of this state is the more appropriate forum to
determine the custody of the child under section seventy-six-f
or seventy-six-g of this title; or
o no court of any other state would have jurisdiction under the
criteria specified in paragraph (a), (b) or (c) of this subdivision.
o 3. Physical presence of, or personal jurisdiction over, a party or
a child is not necessary or sufficient to make
a child custody determination.
o NY CLS Dom Rel §76-a provides continuing jurisdiction where:
 Except as otherwise provided in section seventy-six-c of this title, a court of this
state which has made a child custody determination consistent with section
seventy-six or seventy-six-b of this title has exclusive, continuing jurisdiction
over the determination until:
 a court of this state determines that neither the child, the child and one parent,
nor the child and a person acting as a parent 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.
 A court of this state which has made a child custody determination and does not
have exclusive, continuing jurisdiction under this section may modify that
determination only if it has jurisdiction to make an initial determination under
section seventy-six of this title.

Equitable Distribution in New York

 New York Approach:

o Equitable distribution- equitable distribution pertains to the fair distribution of assets
and debt, not equal distribution. (NYDRL § 236).
o In a divorce case, all assets and debt get divided.
 Marital property can be defined as all property acquired by either or both
spouses during the marriage and before the execution of a separation
agreement or the commencement of a matrimonial action, regardless of the
form in which title is held, except as otherwise provided in agreement pursuant
 to subdivision three of this part. Marital property shall not include separate
property. (NYDRL § 236).
 Separate property can be defined as (1) property acquired before marriage or
property acquired by bequest, devise, or descent, or gift from a party other than
the spouse; (2) compensation for personal injuries; (3) property acquired in
exchange for or the increase in value of separate property, except to the extent
that such appreciation is due in part to the contributions or efforts of the other
spouse; (4) property described as separate property by written agreement of
the parties pursuant to subdivision three of this part. (NYDRL § 236).
 Separate property can be transformed (aka transmuted) into marital
property if the spouses so intend, or if the property is commingled with
marital property and no longer separately traceable. In determining the
equitable distribution of marital property, the court will consider the
following: (1) the income and property of each party at the time of
marriage, and at the time of the commencement of the action; (2) the
duration of the marriage and the age and health of both parties; (3) the
need of a custodial parent to occupy or own the marital residence and
to use or own its household effects; (4) the loss of inheritance and
pension rights upon dissolution of the marriage as of the date of
dissolution; (5) the loss of health insurance benefits upon dissolution of
the marriage; (6) any award of maintenance under subdivision six of this
part; (7) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party.
 The court shall not consider as marital property subject to distribution
the value of a spouse's enhanced earning capacity arising from a license,
degree, celebrity goodwill, or career enhancement.
o However, in arriving at an equitable division of marital
property, the court shall consider the direct or indirect
contributions to the development during the marriage of the
enhanced earning capacity of the other spouse; (8) the liquid or
non-liquid character of all marital property; (9) the probable
future financial circumstances of each party; (10) the
impossibility or difficulty of evaluating any component asset or
any interest in a business, corporation or profession, and the
economic desirability of retaining such asset or interest intact
and free from any claim or interference by the other party; (11)
the tax consequences to each party; (12) the wasteful
dissipation of assets by either spouse; (13) any transfer or
encumbrance made in contemplation of a matrimonial action
without fair consideration; (14) any other factor which the court
shall expressly find to be just and proper. (NYDRL § 236).
 Example of assets to be equitably divided in a divorce include any
marital homes, vehicles, bank accounts, retirement accounts,
businesses, art, etc.
 Examples of debt to be equitably distributed include medical debt,
credit card debt, loans, etc.
 How property/ debt value is determined:
o Debt is determined by the amount of money the couple owes
from debts accumulated during the marriage.
o For example: The couple buys a house for $100,000. They pay
off $50,000 during the course of the marriage. They would have
a debt of $50,000 that would be equitably distributed between
them.
o Debt accumulated before the marriage remains separate
property unless it has been added to during the marriage. In
determining the value of property the parties could have an
assessment of a house done, or provide documentation to the
Court and opposing counsel as to the worth of a vehicle or
retirement account.