Marriage - Rights to Family

● #1 Obergefell v. Hodges - same sex marriage, marriage is fundamental

○ Facts:
■ Petitioners are 14 same-sex couples
○ Holding:
■ Same sex couples have constitutional right to marry protected by EPC and DPC of 14th amendment
○ Rule:
■ 4 principles/traditions the court gives for reasoning that marriage is fundamental under Constiution for same sex couples:
● (1) Right to personal choice regarding marriage is inherent in individual autonomy (personal choice,
self-definition, intimate expression)
● (2) Decisions concerning marriage are the most intimate that an individual can make (unique two-person union
dignified by the state)
● (3) It safeguards children and families - draws meaning from related rights of child rearing, procreation, and
education (raising children in stable, non-stigmatized families)
● (4) Marriage is a keystone of our social order (material and symbolic benefits)
○ Reasoning:
■ Court says that marriage is history - important to identify formation, has significance and meaning that transcends other
types of relationship statuses
■ The deprivation is an exclusion in itself has its own harm
■ Constitutional problem?
■ SDP under the 14th amendment
■ Rights that are fundamental/intimate - privacy
■ 4 principles/traditions the court gives for reasoning that marriage is fundamental under Constiution for same sex couples:
● (1) Right to personal choice regarding marriage is inherent in individual autonomy (personal choice,
self-definition, intimate expression)
● (2) Decisions concerning marriage are the most intimate that an individual can make (unique two-person union
dignified by the state)
● (3) It safeguards children and families - draws meaning from related rights of child rearing, procreation, and
education (raising children in stable, non-stigmatized families)
● (4) Marriage is a keystone of our social order (material and symbolic benefits)
● #2 Blumenthal v. Brewer - marriage-like relationship but not married, ct says marriage is necessary
 ○ Facts:
■ Dr. Blumenthal brought an action to partition family home owned with partner
■ They had a long-term domestic relationship and raised a family together but never married
■ Partner Brewer counterclaimed for various common-law remedies, including sole title to the home and an interest in
Blumenthal’s ownership share in a medical group so the couple’s overall assets would be equalized
■ Brewer claimed they commingled their savings/investments and funds for the purchase of the medical group ownership
interest came from their joint account - she said she agreed to use of funds from joint account with understanding that she
would continue to benefit from the earnings
■ Brewer’s legal request: that the court uphold lower court’s holding that former cohabitants who live outside the bonds of
marriage, but live in a marriage-like relationship, may bring common law property claims
○ Holding:
■ Marriage is necessary - Court rules against treating cohabitants as spouses → no rights on investment made within
relationship (one gave $$ towards the other’s medical practice buy in
■
○ Rule:
■ Unmarried domestic partners cannot enforce mutual property rights without an economic justification independent from
the parties’ relationship.
○ Reasoning:
■ References Hewitt case - unmarried couple in a marriage-like relationship, the court holds that they won’t recognize
informal/common law marriage
■ If the state legislature wanted to create statutes for non-marital couples, it would have
■ Said legislature knew of the Hewitt result and if they wanted to cover couples like Blumenthal/Brewer, they would have
■ Refusing to allow CL K recovery for cohabitating couple (woman sued b/c her money went into partner’s ownership stake
in business, claimed unjust enrichment) b/c state has “strong continuing interest in preventing marriage from becoming
private contract terminable at will”; don’t want to allow other forms of cohab to replace status of marriage
● #3 Braschi v. Stahl Associates Company -
○ Facts:
■ Gay couple living in a rent controlled apartment in NYC. The one with the lease dies, and the apartment tries to live the
surviving
■ The statute itself about noneviction says surviving itself includes “family members” and it’s unclear who family members
includes
○ Holding:
■ Rent control statute said landlord couldn’t evict dead tenant’s family, court says deceased tenant’s partner could be family
using standard

1
 ○ Rule:
■ Totality of circumstances analysis to determine whether individual is entitled to noneviction protection, factors include:
● (1) exclusivity and longevity of the relationship
● (2) level of emotional/financial commitment
● (3) manner in which parties have conducted their everyday lives and held selves out to society
● (4) reliance on one another for daily family services (emotional bonds AND financial interdependence)
○ Reasoning:
■ Court looks to the daily elements of their relationship relates to marriage
■ E.g. financial relationship (intertwined/joint accounts), he considered the apartment his home, they were regarded as
spouses by family and friends, the address was on his driver’s license and passport, receives his mail there, etc.
■ Produce evidence of the relationship - prove it
■ Statute is intended to prevent someone from losing their family and then also losing their home

Parental Rights: Substantive Due Process Right to Parent

● Outline/Questions to ask in these cases:

○ What is the law in question in each case?
○ What right does the parent seek to enforce?
○ What is the state interest in each case?
○ What are the limits?
● 14th Amendment: “cannot deprive person of life, liberty, or property without due process”
○ Parenting is a fundamental right
○ Limitations on Parent’s Right to Upbringing:
■ Reasonable regulation
■ War
■ Harm
● #4 Meyer v. Nebraska - Right to teach kids German
○ Facts:
■ Law in question - you can’t teach any language other than the English language in public schools
■ Teacher was convicted for teaching German to a 10 year old
■ State interest - that American children are brought up in a patriotic way (nationalism), that they are good citizens, protect
a child’s mental health
○ Holding:
■ State exceeded authority by imposing the statute - parental liberty wins
■ Limits:

2
 ● State may go very far to improve the life of its citizens - but not here
● E.g. an emergency situation like war
○ Rule:
■ Right to teach kids German (or other non-English language)
○ Reasoning:
■ State ban on teaching German infringed on parent right to direct upbringing of child (mattered that no one would be
harmed by learning German)
■ While plaintiff acted unlawfully, the law is arbitrary and so they won’t enforce it. If legislation has no reasonable relation
to some purpose of state competency, it cannot be imposed
■ There can be possible limitations based on war or emergency, but at this time in 1923, there were no emergencies.
● #5 Pierce v. Society of Sisters - Right to send kids to private school (e.g. Catholic school)
○ Facts:
■ Law in question - children must attend public school from the ages of 8-16
■ This would force closure of religious private schools and a military academy
■ Parents say they have a right to 14th amendment right to liberty
■ Right in question - the right to direct the upbringing of children
○ Holding:
■ State law requiring parents to send children to public school (as opposed to, e.g. Catholic school) infringed on parent right
to direct upbringing and education of child
○ Rule:
■ Parents have right to direct upbringing and education of child
○ Reasoning:
■ Takeaway - we think that parents are the best protection for children. Families are the best way in which a child’s
upbringing and education should be managed. This is true as a broader theory of how to create representative
democracies.
● #6 Prince v. Commonwealth of Massachussettes - Use child labor laws to place limits on parenting rights (harm in streets)
○ Facts:
■ Law at issue - anti-child labor law of MA
■ Right at stake - the right to raise your children within your faith/religious instruction
■ Sarah Prince is the custodial parent of her niece, who asks her to come with her, and is offering pamphlets on the street
■ These pamphlets were not actually for sale, she was holding them up for passersby
■ They are Jehovah’s witnesses
○ Holding:
■ State interest (wellbeing of children) > parent’s interest

3
 ■ State child labor law applied to keep Jehovah’s witness child from distributing pamphlets in public at night does NOT
infringe on parent’s right to direct upbringing; gov interest strong where potench harm to child
○ Rule:
■ Child labor laws can place limits on parenting rights
○ Reasoning:
■ State interest - overall wellbeing of the children/welfare in the situation
● They argue that this is the street and this is not what sidewalks are meant for. It’s nighttime, there are saloons,
dance halls, etc.
● Child labor laws are meant to keep children out of unsafe environments/compromising situations
● Even if it is “looking like you are selling”, this is not what we want children to be engaged in - State wants to give
children a level of protection if parents can’t do so.
● #7 Wisconsin v. Yoder - Amish don’t have to send kids to school after 16 → no harm, no burden on state
○ Facts:
■ Law at issue - Wisconsin has a mandatory attendance school statute that requires students to attend private or public
school until the age of 16
■ Litigants are Amish parents who have been fined for taking their children out of school after the 8th grade
■ State interest - providing an adequate education so children can be self-reliant adults
○ Holding:
■ Compulsory attendance law infringed on Amish right to direct education and religious upbringing of child, state interest
legit but Amish upbringing achieved those goals
○ Rule:
■ Amish don’t have to send kids to school after 16 → no harm, no burden on state
○ Reasoning:
● #8 Troxell v. Granville - Mother determines visitation and parents have a right to care, custody, and control of their children
○ Facts:
■ Tommie Granville and Brad Troxel never married but had 2 daughters together
■ Paternal grandparents (Brad’s parents) are Jenifer and Gary Troxel
■ After Tommie and Brad separated, Brad lived with his parents and regularly brought the kids to his parents’ home for
weekend visitation
■ Brad committed suicide
■ Grandparents did have visitation with the children after the suicide, the mother went to court to limit their visitation to
once per month
■ Law in question - third party visitation law - any person may petition the court for visitation rights at any time; court may
order visitation rights if it serves the best interest of the child

4
 ■ Parents have rights to care, custody and control for their children under substantive due process of the 14th
○ Holding:
■ The third party visitation law is unconstitutional - Court permitting the grandparents to see their grandchildren, when the
fit parent has decided against it, violates parent’s right to rear their child.
○ Rule:
■ Absence special circumstances, fit parents must receive deference by courts. What the deference is is not clear (siding with
a legal parent unless there is a good legal reason)
● It could have been possible to have the same outcome if the judge had taken into account that Tommie was a fit
parent and outlined reasons for departing from the parent’s choice.
○ Reasoning:
■ Grandparents petitioned for visitation rights, while the (fit) parents wanted to limit children’s contact with grandparents.
Court permitting the grandparents to see their grandchildren, when the fit parent has decided against it, violates parent’s
right to rear their child.
● State must have threshold finding of harm to allow 3rd party to petition for visitation
● Grandparents did not allege Granville was unfit parent. If Granville is fit, then her preferences are prioritized.
■ Cited Meyer and Pierce’s parental rights to direct upbringing and rearing of child
● FIT parents, absent special circumstances, must have PREFERENCE in how children are brought up
○ Steven/Douglas Dissent: should use Best Interests of the Child (BIOC) standard and limit some parental right

Meyer (1923) Pierce (1925) Prince (1944) Yoder (1972) Troxel (2000)

Law? No teaching German Public school Child labor law Complete school until Visitation for 3rd
in public schools compulsory age 8-16 age 16 parties
(unconstitutional as
applied)

Right? Parent’s right to Parent’s right to Religious upbringing Religious upbringing Care, custody of
upbringing of children upbringing and children
directing child’s
education

5
 State Interest? American values / Regulation of schools Psychological and Preparing citizens to Best Interests of the
assimilation and teachers for physical harm participate in political Child (BIOC)
efficient education for systems and also to be
student citizens self-reliant (not a
burden on the state)

Limits? Reasonable Harm: parents win Harm: dangerous for Harm: child safety Are parents fit? If
regulation, war, and because private children to be on the and child labor law parents not fit, then
harm schools don’t harm streets (so state has to state might have
students and there IS impose child safety reason to interject.
regulation laws; parens patiae)

Who is a parent that has rights?

● #9 Lehr v. Robertson - putative father registry → needed to show interest

○ Facts:
■ Lehr was the biological father of Lorraine Robertson’s daughter, Jessica
■ Jonathan wasn’t listed on Jessica’s birth certificate, never lived with Lorraine after Jessica was born, and didn’t provide
any financial support
■ 8 months after Jessica’s birth, Lorraine married Richard Robertson
■ When Jessica was 2 years old, the Robertsons filed an adoption petition to establish a parent-child relationship between
Richard and Jessica
■ Jonathan never registered himself as Jessica’s putative father (in the State of NY’s registry) and wasn’t entitled to notice of
the adoption proceeding under NY law (since he didn’t file in the registry)
■ Jonathan learned of the adoption proceeding after he filed a separate paternity action
■ He intended to seek a stay of the adoption pending a paternity ruling
■ The judge in the adoption proceeding, despite knowledge of Jonathan’s paternity claim, issued a final adoption order
before Jonathan could file the stay
■ Jonathan filed a petition to vacate the adoption order - he alleged NY’s notification process was unconstitutional on due
process (DPC) and equal protection (EPC) grounds
○ Holding:

6
 ■ Biological relationship is not alone sufficient for constitutional protections to attach, requires biology AND
relationship (dad made no contact for 2 years, note this may have been mom’s fault
■ Dissent concerned about notice and procedural due process
○ Rule:
■ “Biology plus Relationship” applied in state adoption statutes
■ In this case, father did not follow statute to become a recognized father until it was too late. State prefers FORMALISM in
adoption cases, for CLARITY (the 7 categories are inclusive, gives options, and are predictable) and FINALITY (promoting
adoption limiting needless controversy and ongoing conflicts)
■ Unmarried fathers have to actively ESTABLISH a relationship (in NY, there are 7 ways to do so)
○ Reasoning:
■ Types of fathers in NY that are entitled to notice of adoption
● On putative father’s registry
● Those adjudicated to be the father
● On the birth certificate
● Openly living together w/ child’s mother (at the time adoption proceedings are initiated)
● Hold themselves out to be the father
● Identified as the father by the mother in a sworn written statement
● Married to the child’s mother before the child was 6 months old
■ Court cited cases about bio father’s relationship with his children (Stanley, Quilloin, and Caban)
● Requirement that father should “take certain actions” to establish parent-child relationship, but not “presumed
unfit”
● If unmarried father has made no effort to establish parent-child relationship, statute can authorize adoption
without his consent (and it is not a violation of EPC)
■ “The DPC does not require notice of an adoption proceeding to be given to a bio father who may be an interested party to
the proceeding...the EPC is not violated when the state treats one parent who has an established
relationship with the child differently from the other parent who either abandoned or never established
a relationship with the child.”
○ Dissent (White):
■ DPC offers constitutional protection if a current parent-child relationship exists, regardless of the quality of that
relationship
■ Notification procedures must require a reasonable effort to identify a putative father and give him notice
■ Here, where there was actual notice of Jonathan’s paternity claim, due process required that he receive notice and have an
opportunity to be heard before a final adoption order was issued
● #10 In re Adoption of SDW -

7
 ○ Facts:
■ Father was not listed on birth certificate, mother put child up for adoption and adoption agency failed to find father due to
mother incorrectly recording father’s name on affidavit
■ Father later found out about the baby and sought custody
■ Statute in question (bottom of p. 869) about petition to adopt - essentially the ways you can show you intended to be in a
parental role
■ Ways to establish a relationship:
● Affirmative step
● Financial support
● Communication
○ Holding:
■ Adoption of a father’s biological child without his consent does not violate the father’s substantive due process rights if the
father’s failure to obtain notice of the child’s birth was within his control
○ Rule:
■ There’s a potential liberty interest in father’s right to form relationship w/ his child, but no constitutional violation where
putative father statute (establishes classes of fathers entitled to notice before termination of parental rights) includes
qualification which is wholly in control of interested fathers (e.g., mail in post card to put yourself on notification registry)
● “in control” potentially very broad- in dad’s control to ask if mom got pregnant, even if she actively hid pregnancy
from him
○ Reasoning:
■ State interest vs. father’s interest
● State: finality, promoting adoption
● Father’s interests: substantive due process + procedural rights
● Example of third party standing: 23 PA Cons. State §§5324, 5325, 5328(c)
○ §5324. Standing for any form of physical custody or legal custody
○ §5325. Standing for partial physical custody and supervised physical custody
○ §5328(c). Factors to consider when awarding custody; Grandparents

Marriage and its Formalities

● Basics of Marriage
○ Substance: cohabitation (living together) + consortium (entitled to affection, intimacy + support of spouse)
■ Lutwak: Court invalidated marriages because there was no cohabitation/consortium and never any intent to have it

8
 ○ Process: officiant, ceremony, license
■ Pickard: couple married by unrecognized officiant → court upholds marriage via estoppel
● Voidability vs. Void
○ Void: Never valid → so defective they never could have existed (results in annulment)
■ Grounds:
● Capacity
○ Edmunds: upheld marriage of 2 intellectually disabled people, capacity enough to understand duties
● Bigamy
● Incest
■ Who has standing to challenge: anyone
■ Results: annulment
○ Voidability: can be made valid
■ Ground:
● Duress
● Fraud → can learn of fraud and accept
● Ramirez: Fraud goes to the “very essence of marriage” (fidelity)
○ No intent to perform a vital duty of marriage at the time of the marriage
○ But for the fraud, they would not have married
○ If she would have stayed after discovering, marriage would have then been ratified
● Age → you age out
■ Standing to challenge: only spouses
■ Result: ratification or annulment
○ See, e.g., 23 Pa. CSA §§3304-3305
■ Void (without confirmation of cohabitation)
● Bigamy
● Incest
● Incapacity (insanity, serious mental disorder, or lacked capacity or did not intent to consent)
■ Voidable
● Age (court (under 16) or parental (16-17) approval)
● Influence of alcohol or drugs → ratification at 60 days
● Natural, incurable unknown impotence (at time of marriage)
● Fraud, duress, coercion, or force

9
 How bad? REALLY bad Pretty bad No defect

Status? VOID (incest, bigamy, capacity) VOIDABLE (age, fraud) VALID

Consequences? No marriage Valid until voided All rights and responsibilities of

marriage

Procedure? Standing? Annulment - any person, any time Annulment, only spouses, only Divorce, only spouses
during marriage

Ratification? No Yes N/A

**Void can never be Valid**
***Voidable can be valid through ratification***

● #11 Lutwak v. United States - substance of marriage

○ Facts:
■ Several couples charged with conspiracy to defraud US immigration laws by obtaining illegal entry into the country for
three spouses without having intent to ever “act out” or “live as” spouses
○ Holding:
■ Court invalidated marriages because there was no cohabitation/consortium and never any intent to have it
○ Rule:
■ Substance of Marriage = cohabitation (living together) + consortium (entitled to affection, intimacy + support of spouse)
○ Reasoning:
■ Defendants argue their intentions were similar to legally recognized “limited purpose marriages”
■ Court holds this is not applicable, as there was no intent to carry out “duties” of marriage: cohabitation or consortium
■ State can set aside marriage if they find you didn’t marry for the purposes of marriage
■ *ESSENCES* of marriage needed in order for marriage to be valid
● #12 In re Marriage of Ramirez - voidability of marriage
○ Facts:
■ Ramirez married Lilia, and she was his immigration sponsor
■ Ramirez called Lilia to tell her he wanted a divorce because he was having an affair/was in love with her sister
■ During the telephone conversation, Llamas heard Ramirez assure her sister that they would be together once he obtained
his share of money and property from Llamas and that he had only married Llamas to gain permanent resident status

10
 ■ The trial court found the second marriage (they had a 1st marriage without a marriage license) to be void due to fraud
relating to the fact that Ramirez married Llamas to secure a positive immigration status and that Ramirez had a
preexisting affair with Llamas’s sister that he intended to continue
○ Holding:
■ Ramirez had fraud charge because of his intent to continue a sexual relationship with his wife’s sister (violating the sexual
fidelity part of marriage) therefore court held marriage to be VOID due to FRAUD
● Court doesn’t want people to defraud others into a marriage contract
○ Rule:
■ Consent to marriage is a key element of the civil marriage construct
● The fraudulent intention must relate to the sexual or procreative aspects of the marriage (ability to get pregnant,
sexual orientation, willingness to have children, lies about previous pregnancies)
● It CANNOT relate to false representations of spouse’s character, finances, chastity, habits, etc (these are not
*essences* of marriage)
○ Reasoning:
■ Annulment vs Divorce?
● Annulment erases a marriage so it never existed, whereas a divorce records a marriage’s existence and there could
be financial consequences (alimony, etc)
● In Ramirez, wife benefits from annulment because she keeps everything in her name and a divorce would have
forced her to divide her assets
● Courts don’t want couples to use annulment as a way around divorce so annulment standards are high
● Ground for annulment depend on state’s definition of the “essence of marriage”
● #13 Pickard v. Pickard - process of marriage
○ Facts:
■ Husband filed for annulment on grounds that his marriage ceremony had not been formally solemnized (was done by a
universal life church minister). He had previously used his marriage as grounds for adoption of wife’s daughter, so court
denied his annulment, saying he had legally relied on his marriage earlier and could not argue conflicting positions.
○ Holding:
■ Marriage ceremony performed by unqualified minister, but court says husband estopped from annulment b/c said in
adoption affidavit they were married
○ Rule:
■ A petition for annulment may be denied on the ground of judicial estoppel if it is shown that:
● (1) the petitioner’s initial claim of being lawfully married is inconsistent with a subsequent position,
● (2) the acceptance of the petitioner’s conflicting positions might pose a threat to judicial integrity by leading to
inconsistent court determinations, and

11
 ● (3) the petitioner would derive an unfair advantage or impose an unfair detriment upon another if not estopped
○ Reasoning:
■ Court did agree marriage wasn’t properly solemnized, but wasn’t going to let husband benefit from his conflicting
statements
■ Court uses doctrine of judicial estoppel to enforce “Spirit of marriage” validity - courts WANT marriage validity
preservation and are willing to gloss over technicalities to do so.
● #14 Edmunds v. Edwards - voiding (or not here) marriage based on capacity
○ Facts:
■ Guardian of Harold alleged his marriage was void for the reason that Harold did not have the mental capacity
(“intellectually disabled”) to enter into the marriage contract
○ Holding:
■ Intensive fact finding shows that Harold understood the basic duties of marriage and shared responsibilities, thus court
ruled the marriage valid
○ Rule:
■ Marriage is void (was never valid) if either party lacked capacity to enter marriage, must be such a want of understanding
as to render party incapable of assenting; party unable to understand nature of agreement
○ Reasoning:
■ Court wanted to know if he understood duties of marriage (financial obligations during marriage, potential for alimony)
and nature and seriousness of obligations which attach; Harold had guardian to make financial decisions, but court said
didn’t need to have capacity to make complex financial decisions in order to understand basics of marriage

Duties During Marriage

● Community Property: any property acquired by the productive efforts of either spouse during the marriage is community property.
Separate property is property owned before marriage or given to only one spouse during the marriage
● Common Law Property Tradition (PENNSYLVANIA!!):
○ Separate ownership in marriage, joint ownership by voluntary act
■ PA, NY, most states
○ Use of resulting or separate trusts - Adams v. Jankouskas
○ Purchase of necessities - Sharpe Furniture v. Buckstaff
○ Limits of judicial intervention AND family support duties - McGuire v. McGuire, Earle v. Earle
● #15 Adams v. Jankouskas -
○ Facts:

12
 ■ Wife pools all the money earned during the marriage and says it is intended for their joint retirement, but never puts his
name on it. When wife dies, he brings suit against wife’s niece (who received the estate) for an equity claim and court
affirms
○ Holding:
■ John is entitled to half of Stella’s estate under a constructive trust
○ Rule:
■ Court can use equitable powers to create trust: When joint funds are committed in trust for one spouse and then pooled
together for the benefits of both spouses (to purchase property/make investments for mutual benefit of both spouses), the
court may impose a resulting or constructive trust upon the accumulated assets
● Resulting Trust- arises from the presumed intentions of the parties, presumes person supplying the purchase
money for some property intends that the purchase will inure to his benefit, and that title not in his name for
some incidental reason
● Constructive Trust- does NOT arise from intent of the parties, but is imposed where D’s fraudulent, unfair, or
unconscionable conduct causes him to be unjustly enriched at the expense of another to whom he owed some duty
(b/c justice/equity) 3. More likely to find ownership interest where purchased w/ pooled resources than where
contribution is solely in-kind (not simply helping out w/ start up business)
○ Reasoning:
■ More likely to find ownership interest where purchased w/ pooled resources than where contribution is solely in-kind (not
simply helping out w/ start up business)
● #16 McGuire v. McGuire - judicial non-intervention
○ Facts:
■ Wife sued very frugal husband for support and maintenance without filing for separation or divorce.
○ Holding:
■ Court will not intervene
○ Rule:
■ Where home is “maintained” and parties are living as husband and wife it may be said that husband is legally supporting
wife and that the purposes of marriage are carried out (even w/out heat, clothes, etc.) (judicial nonintervention)
○ Reasoning:
■ Court determines they will not get involved as long as you remain as a couple. Therefore, a spouse cannot sue the other for
support and maintenance while
● The couple’s marriage stays intact, AND
● They continue to live together and the parties’ home is maintained
■ Court will NOT intervene into INTACT marriages to enforce remedy in equity
● This would open floodgates of litigation to do so

13
 ● PRO: privacy in marriage as a right is affirmed, those in the marriage knows what’s best for the marriage
● CON: disparity in bargaining powers (abuse, unequal statuses, etc)
■ Public policy doctrine = “zone of privacy”
● “Living standards of a family are a matter of concern to the household and not for the courts to determine…”
● Public policy dictates that courts not unduly interfere with household economics
■ In the cases in which a wife has been granted support and maintenance while remaining married to her
husband, the wife has been living apart from the husband for reasons caused by him
● Earle v. Earle - the husband forced the wife to leave their home and would not allow her to return
● Brewer v. Brewer - the wife was impelled to leave by the fact that her husband’s mother lived with the couple and
controlled the household
● #17 Sharpe Furniture, Inc. v. Buckstaff - doctrine of necessaries, sofa purchased on credit and husband liable for debt
○ Facts:
■ Sofa, purchased by wife and used by family
○ Holding:
■ Court said husband had to pay for couch wife bought on his credit
○ Rule:
■ Doctrine of necessaries → Spouse must provide what is “reasonably necessary”
● Determined based on your standard of living → here the couch was deemed reasonably necessary
○ Reasoning:
■ Doctrine of Necessities: to prevail under this doctrine, creditor must show wife is supplied with provision for her
protection that her husband failed/refused to provide.
● Court argues that the doctrine serves a purpose to the furtherance of the family unit and its individual members
■ Husband argued that creditors should show item was “necessary”. In this case, the wife had bought a couch and the family
was very wealthy.
● Ct ruled that the sofa was “necessary for their social status” (based on the family’s standard of living)
■ Capacious definition of necessary- subjective based on social/socio-economic status of the family (in Buckstaff mattered
that they kept using it, suggested “needed” it)
● And not required to show husband refused or neglected duties of support to show necessary (not defense for hub
to say generally provided necessaries)
● PA (§4101) - Most states enforce joint and several liability, in spouse contracting the debt primarily liable and creditor can go after other
spouse only if first spouse cannot pay bill
● PA (§4102) Proceedings in case of debts contracted for necessaries.
○ In all cases where debts are contracted for necessaries by either spouse for the support and maintenance of the family, it shall be
lawful for the creditor in this case to institute suit against the husband and wife for the price of such necessaries and, after

14
 obtaining a judgment, have an execution against the spouse contracting the debt alone; and, if no property of that spouse is found,
execution may be levied upon and satisfied out of the separate property of the other spouse.
● PA (§4321): duty of financial support between spouses during marriage based on financial ability

Marriage - Contracts

● 3 approaches to enforcing prenuptial agreements: UPAA, ALI, UPMAA

● To be enforceable, premarital agreements must satisfy usual contract requirements:
○ Entered into voluntarily
○ Supported by consideration
○ Satisfy the statute of frauds
● Courts will not enforce agreements if they appear too one-sided or unfair, or if they undermine particular spousal and
parental duties established by statute or common law
● 23 Pa. CSA § 3106
○ (a) General rule. The burden of proof to set aside a premarital agreement shall be upon the party alleging the agreement to be
unenforceable. A premarital agreement shall not be enforceable if the party seeking to set aside the agreement proves, by clear and
convincing evidence, that:
■ 1) the party did not execute the agreement voluntarily; or
■ 2) the party, before execution of the agreement:
● (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
● (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided; and
● (iii) did not have an adequate knowledge of the property or financial obligations of the other party
● What makes PA prenup enforceable?
○ Process:
■ Make sure other person has access to lawyer
■ Full and fair disclosure of assets - ask for tax returns, credit check, bank statements, affidavit, employment contract,
foreseeable wealth
■ Coordinate with attorney, affidavit
○ Substance:
■ Clear notice of what you’re giving up
■ Might include language capping if exponentially valuable
■ Project growth
■ Do children change alimony? Does domestic labor?

15
 ■ Most prenups say terms will be able to be renegotiated after 5, 10, 15 years and by # of children
● UPAA (also Simeone) (****PENNSYLVANIA****)
○ Uniform Premarital Agreement
○ UPAA creates presumption that premarital contracts are valid and enforceable and places on the party seeking to void the contract
the burden of proving the contrary
○ Prioritizes freedom of contract. Not enforceable if (1) not voluntary OR (2) unconscionable
○ What is unconscionable? §3106 doesn’t have conscionability clause, it isn’t standardized. Mostly fact-based from factors like
disparities in wealth, status, etc (“Totality of the Circumstances”)
● ALI (also Lane)
○ American Law Institute Principles of the Law of Family Dissolution (2002)
■ §7.04 - must show informed consent and not under duress (minimum contract rules)
■ §7.05 - cannot enforce agreement if “that enforcement would work a substantial injustice”
○ Lane v Lane (KY, 2006)
■ Husband and wife had antenuptial agreement that waived wife’s right to spousal support/ equitable division of property in
the event of divorce.
■ Court invalidated spouse’s waiver of a maintenance condition because, under the circumstances of the case, it would be
unreasonably detrimental to the affected spouse.
● 1. Ct looked to whether the enforcement of the contract at time of DIVORCE would be fair or not because
~*situations change*~
○ Difference between Lane and Simeone

PA/Contract Law KY/Contract Law

Voluntary? No duress? No fraud? No misrepresentation? Reasonableness at time contract is enforced?

○In Lane, spouses entered into marriage at inequitable statuses, and wife’s status declined over the years because she was
homemaker.
○ Ct says her contribution “is NOT of nominal value and should be fairness be a substantial factor in the case.”
● UPMAA - as the middle ground between fairness and freedom
○ Uniform Premarital & Marital Agreements Act (2012)
■ §9: creates the enforcement standards:
■ (1) voluntary, no duress
■ (2) ACCESS to legal representation - enough time? Other party represente
■ (3) if no access, then a waiver of rights,

16
 ■ (4) “adequate” financial disclosure
● #18 Simeone v. Simeone (PA CASE, still good law) - UPAA, freedom of contract case, prenups
○ Facts:
■ Prenup was presented to her the night of the wedding, she didn’t have legal counsel, would be embarrassed if they called
the wedding off because she wouldn’t sign the prenup
■ She also said he understated his assets in the prenuptial agreement
○ Holding:
■ Court held that an (unfair) prenuptial agreement was to be enforced, even though the wife had not consulted legal counsel
before signing it and had signed it under duress/misrepresentation, the night before the wedding, when she could not
have obtained counsel unless she had endured stress/trauma of postponing her wedding
○ Rule:
■ Premarital contracts are upheld as long as there is no duress, fraud or misrepresentation at the time the contract is
executed (in accordance with contract law)
○ Reasoning:
■ Not misrepresentation/fraud if not itemized all assets/taken inventory taken for prenup - courts say you should have
known about those things for the person you are marrying
■ Court’s reasoning discussed women as no longer the “weaker sex,” that PA had the Equality Rights Act now and that
women should be treated “equally” under the law.
● Parties should bear risk of a bad deal
● Setting aside prenups makes them unpredictable/discourage marriage
■ Court rejects old “reasonableness” test of marriage law (of determining if contract is “reasonable” or not in whether to
uphold the contract)
● Ct claims that “the reasonableness of a prenuptial bargain is a not a proper subject for judicial review”
● Instead turns to CONTRACT LAW, focusing on wife’s claims of duress and misrepresentation
● #19 Borelli v. Brusseau - pre-existing duty
○ Facts:
■ Deal was wife cares for hub until death and hub would leave more to wife in will
○ Holding:
■ Ct says unenforceable
○ Rule:
■ Pre-existing duty rule (deathbed care)- can’t be consideration
○ Reasoning:
■ Majority doesn’t want to commodify marital services, “antithetical to marriage”
● And concern about coercion, extortion, and unequal bargaining power

17
 ■ Court says this would offend public policy
● We’ve seen this before in McGuire
○ It would commodify marriage and treat it like a business relation, would lead to death bed bargaining
○ Cold hard bargain rather than a special relationship
■ Reconciliation agreement: during marriage agreement where the couple was going to split + they only stayed together
because of what was agreed up → Borelli may have been decided differently if she argued this
○ Dissent:
■ No requirement that spouses be each other’s nurses
● #20 Bedrick v. Bedrick - postnup
○ Facts:
■ Bedricks executed postnup during marriage providing that Deborah would receive cash settlement of 75K upon divorce
■ At the time of hearing, Bedricks had combined assets of 900K
○ Holding:
■ Postnup is invalid and unenforceable
■ Ct says postnup subject to stricter scrutiny than prenup; must comply with K principles, and terms must be fair and
equitable at time of execution and not unconscionable at time of dissolution (like review for fairness approach above)
○ Rule:
■ Post nup will be enforced if:
● Agreement complies with Contract principles
● The terms are fair and equitable at time of execution
● Terms are not unconscionable at time of dissolution
○ Unconscionable looks to factors like:
■ Disparity in assets
■ Difference in ages
■ Sophistication, education, employment, experience, and prior marriages of the spouses
■ Essentially lopsidedness
○ Reasoning:
■ Bedrick decision emphasizes fairness/equitable at SIGNING and at ENFORCEMENT, instead of PA, which leans towards
toward “freedom” rather than “fairness”
● Separation Agreements:
○ Courts seldom police separation agreements, must simply satisfy K principles
■ In most states, parties cannot enter into binding Ks w/ regard to child support, custody and visitation (because must
always be subject to the best interests of the child)

18
 ■Makes sense to enforce because parties are the ones with the info and ability to make fair split, court will only have
information provided by the parties
○ Note potential concern for penalties discouraging recourse to courts in separation Ks (Huss)
● #21 Huss v. Weaver - separation agreements
○ Facts:
■ Contract between a dating couple (not married) about who would have custody of baby if they had one. Included $10k
penalty every time the boyfriend tried to re-negotiate custody. After girlfriend had a baby, boyfriend tried to petition for
custody and refused to pay for the modification attempt
○ Holding:
■ Weaver can afford to pay $10,000, so the parties’ agreement does not place a serious impediment on Weaver seeking a
judicial determination of the best interest of the child, so the custody agreement is enforceable
● If it was a penalty/deterrent then Ct would not enforce b/c don’t want anything to keep parties from achieving
goal of best interest of the child
○ Rule:
■ Parties CAN contract away right to custody
■ Parties CANNOT contract away child support (BIOC)
■ Payment for modification attempts enforceable IF it does not place a serious impediment on party seeking judicial
determination (if can afford it, not a problem)
○ Reasoning:
■ While it’s not against public policy, it IS subject to judicial review of whether the agreement is in BIOC.
■ Also, while a party can contract away right to custody, a party CANNOT contract away right to adequate child support
(because it belongs to the child, whereas the right to custody belongs to the parent)

Restrictions v. the Right to Marry

● #22 Loving v. Virginia - marriage fundamental, racial discrimination not valid gov’t purpose
○ Facts:
■ Interracial couple married in DC, then returned to VA. Charged with violation of state ban on interracial marriage
■ State argued that the meaning of the Equal Protection Clause means that the interracial element of the offense must apply
equally to white and black people in the sense that they are punished to the same degree
● Since the statute punishes both races equally, they claim it does not constitute discrimination based on race
■ Supreme Court held that this law violated the 14th Amendment
○ Holding:
■ Statute violates the EPC of 14th amendment and can’t stand

19
 ■ Holds that marriage is one of the basic rights of man
○ Rule:
■ Marriage is a fundamental right - indvidious racial discrimination NOT valid gov’t purpose
○ Reasoning:
■ State’s interests in Interracial ban:
● Naim v Naim (VA,1955) upheld VA ban to “preserve the racial integrity of its citizens,” to prevent “corruption of
blood, and the obliteration of racial pride.”
○ State argued their ban doesn’t violate EPC because both black people and white people are punished the
same for violating the ban.
● State court emphasized that marriage is a STATE RIGHT to decide
■ Supreme Court argues that “equal application” of a statute containing racial classifications is not enough of a rational basis
for state to get out of providing JUSTIFICATION (state interests) for those classifications
■ Supreme Court upholds “freedom to marry” as one of the “basic rights of man” and to limit this is to violate the freedoms
of the state’s citizens without due process of law
● #23 Obergefell v. Hodges - same sex marriage
○ Facts:
■ 14 couples and 2 men with same sex partners who were deceased
■ Opinion focused on Obergefell whose partner since passed and was not allow Obergefell to be listed as the surviving
spouse on his partner’s death certificate
■ They were wed on a tarmac in Maryland where marriage was legal
○ Holding:
■ Same sex marriage protected by 14th amendment
○ Rule:
■ Nature of right post-Obergefell: two consenting adults where marriage would pose no risk of harm to themselves or third
parties
■ Fundamental because:
● (1) right to personal choice regarding marriage is inherent in individual autonomy
● (2) right to marry is fundamental because it supports a two-person union unlike any other
○ E.g. need to be married to be family for the purposes of hospital
● (3) safeguards children and families and thus draws related rights of child rearing, procreation and education
● (4) marriage is the keystone of our social order
○ It’s how the government doles out benefits when they are married, property, wealth, family, assets passing
from generation to generation, etc.
○ Reasoning:

20
 ■ Describes the historical background to same sex marriage - lays the groundwork for it to be a fundamental right protected
by the due process clause
● Says marriage has evolved over time
■ References “immutability” - which means something you cannot change
● Says that being homosexual is not a disease, it’s normal and how you are born
■ Talks about fundamental right of dignity and autonomy - intimate choices that define personal identity and beliefs
○ Roberts dissent:
■ Argues that after Obergefell, polygamists should be allowed to marry too
● Says polyamy has a longer history
● Is there proof it would harm child?
■ Thinks that this is an issue for the legislature
■ “Our constitution does not enact any one theory of marriage” - referencing Lochner here, saying the court is doing Lochner
here
■ He compares polygamy and same sex marriage

Restrictions on the Entry to Marriage

● #24 Nguyen v. Holder - relatives

○ Facts:
■ Huyen Nguyen (plaintiff), a Vietnamese citizen, married her half uncle, an American citizen
■ An immigration judge ordered Nguyen deported because her marriage to the American citizen was incestuous and
therefore void
○ Holding:
■ Ct decides that does NOT count half uncle and half niece as incest under NY law b/c of text of statute and purpose of the
limitation
○ Rule:
■ A marriage between a half uncle and half niece is not void as incestuous
○ Reasoning:
■ Court says purpose of incest ban is:
● Genetic disorder concerns
● Older family members preying on younger family members in the household, and jealousy/other issues
● #25 Porter v. Dep’t of Health & Human Services - age
○ Facts:

21
 ■ Dad gave permission for 16 y/o to marry 34 y/o w/out any investigation, charged w/ neglect; Dad argues he has 14a right
to care, custody and control and was exercising that right, Ct says prob wasn’t that you consented but that you did it w/ no
care
○ Holding:
■ But Ct does NOT void the marriage b/c no evidence of misrepresentation or finding of incapacity at time of marriage
○ Rule:
■ Immaturity ≠ incapacity, and family reunification not basis for annulment
● PA (§1304b) - 16-18 ok w/ parent consent, under 16 only if best interest
● #26 State v. Holm - polygamy
○ Facts:
■ Holm had one legal marriage and then 2 religious marriages to other women. Only the first was formalized in the state.
● UT bigamy statute: “a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other
person has a husband or wife, the person purports to marry another person or cohabits with another person.” -
this statute is more far-reaching than others, in that it covers cohabitation.
■ State’s reasoning for banning bigamy:
● Leads to tyranny (kinship networks have more power than democracy)
● Leads to patriarchy (harm)
■ Holm argued that Lawrence v Texas allowed for “liberty interests” including polygamy, court rejects this, saying it was
about PRIVATE sexual acts, not the institution of marriage
○ Holding:
■ Court finds that entering into more than one marriage is unconstitutional, even if the marriage is religious in nature - the
concept of marriage in Utah is said to include both legally recognized marriages and those that are NOT state-sanctioned
○ Rule:
■ Ok to criminalize religious plural marriages even if not legally binding, rejects argument that violating 14A right to
intimacy
○ Reasoning:
■ State interest: Court says these outweigh the individual interests
● Protecting vulnerable parties (women and minors)
● Protecting monogamy: most healthy relationship
● Fraud: people protecting to be marriage for benefits
■ Individual Rights
● State’s only doing it for Mormons (EPC)
● Can cohabitate with whoever you want (SPD)

22
Alternatives to Marriage

● #27 In re Marriage of Winegard - common law marriage

○ Facts:
■ Wife and community believed that a marriage existed until John wanted to “end the relationship.” Wife believed it was a
common law marriage and wants remedies as if it were a divorce. Using married name in public, announced in newspaper,
accepting wedding gifts, using credit account, wedding band, cohabitation for approx 6 years, Sally’s intent and belief
○ Holding:
■ Husband had fulfilled all elements of common law marriage, so wife was able to hold husband to all rights and duties of
marriage
○ Rule:
■ 3 elements of common law marriage:
● Cohabitation
● “Holding out” - conduct and reputation
● Agreement/intent - can be inferred if you have the other 2
○ Intent not necessarily about proving party’s subjective intent; can look to circumstantial evidence
● #28 Spearman v. Spearman - putative spouse
○ Facts:
■ Husband married a second wife without ever divorcing his first wife, and held his second wife out to be his ONLY wife.
When he died, the wives both claimed the insurance proceeds.
○ Holding:
■ First wife was able to show marriage was still lawful, second wife tried to say putative spouse but court said she did not
show she had a good faith belief in validity of her marriage b/c admitted she was aware of possibility (likelihood) of prior
marriage and ignored (on notice and no efforts to cure marriage defect)
○ Rule:
■ Two steps for putative spouse:
● Burden shifting: Presumption for 2nd spouse, rebutted by 1st spouse, 2nd spouse disproves
● Putative spouse: Ceremony + “good faith” reliance on marriage’s validity
○ Reasoning:
■ Putative spouse: a status, rather than a contract. One whose marriage is legally invalid but who has
● Engaged in a marriage ceremony or solemnization on the
● Good faith belief in the validity of marriage
● #29 Marvin v. Marvin - express, oral contract to take on domestic duties in exchange for support
○ Facts:

23
 ■ Cohabitant contract that “wife” would quit job and look after house, “husband” would provide financially for them
○ Holding:
■ Court holds that unmarried cohabitants’ contracts in the relationship can be honored, so long as consideration is not sex
○ Rule:
■ Most jurisdictions have no problem enforcing contracts b/w unmarried cohabitants (so long as sex not consideration)
○ Reasoning:
■ Enforcement of contract NOT a violation of public policy
■ Contracts can’t be invalidated just because parties in the contract are having sex
● #30 Boulds v. Nielson - pension fund assignment as marital property
○ Facts:
■ “Spouse” tried to claim employee benefits upon partner’s death, and had to prove intent
○ Holding:
■ Spouse could claim ERISA (QDRO) and state will recognize cohab interest in marital property if can determine intent to
share property. Court found intent so pension fund subject to marital-like division.
○ Rule:
■ Factors for intent:
● Whether parties have
○ (1) made joint financial arrangements
○ (2) filed joint tax returns
○ (3) held themselves out as husband and wife
○ (4) contributed to payment of household expenses
○ (5) contributed to improvement and maintenance of disputed property or
○ (6) participated in joint business venture (whether children or joint debts relevant too
■ Reasoning:
● Such division is not precluded by federal law - ERISA permits assignment of a pension if it is marital property
assigned to a spouse, former spouse, child, or other dependent
● #31 Cates v. Swain -
○ Facts:
■ Elizabeth Swain (plaintiff) filed a complaint against Mona Cates (defendant), alleging that Cates had been unjustly
enriched as a result of their same-sex, unmarried-cohabitant relationship
■ Swain had purchased a home in Pensacola, Florida
● Cates provided $2,000 in earnest money toward the purchase of the home
■ 3 years later, Swain and Cates moved to Seattle, Washington

24
 ● Cates purchased a home for $191,000, using $34,000 given to her by Swain, representing the equity from the sale
of the Pensacola home, plus an additional $2,000 from Swain’s personal funds
■ Cates sold the Seattle home for $300,000
■ Swain and Cates moved to Mississippi, where Cates bought a $350,000 home, using the equity from the sale of the Seattle
home
● Swain provided Cates with $5,000 for closing costs and $4,495 to carpet the house
■ Later, the relationship deteriorated
■ In her complaint, Swain alleged that she and Cates had entered into an agreement for Swain to invest the proceeds from
the sale of the Pensacola home into the Seattle and Mississippi homes and that, as a result of the money given to her, Cates
had been unjustly enriched
■ Swain also urged the trial court to impose a constructive or resulting trust in the Mississippi home
■ At trial, Cates testified that Swain’s financial contributions constituted the repayment of various loans
■ The trial court rejected Swain’s claim for a constructive or resulting trust but found that Cates had been unjustly enriched
and held that Swain was entitled to recover: (1) the equity from the Pensacola house, (2) the $5,000 paid for closing costs
on the Mississippi home, and (3) $4,495 to carpet the Mississippi home
○ Holding:
■ Court refuses to get involved in terminated personal relationships to sift through and judge the contributions of the parties
○ Rule:
■ Wife can make claim for unjust enrichment b/c based on monetary contributions, NOT just the fact that they had a
relationship
○ Reasoning:
● #32 Connell v. Francisco - new status - meretricious relationship, receive marriage benefits
○ Facts:
■ Shannon Connell (plaintiff) met Richard Francisco (defendant) while Connell was a dancer in a show produced by
Francisco in Las Vegas, Nevada
■ At the time, Francisco owned several companies and had a net worth of approximately $1,300,000. Connell and Francisco
began a relationship and cohabitated together in Las Vegas
■ One of Francisco’s companies purchased The Whidbey Inn (the Inn), a bed and breakfast located in the State of
Washington
■ Connell moved to Washington to manage the Inn and received no compensation for nearly two years, during which
Connell prepared breakfast, cleaned rooms, took reservations, and paid bills
■ Francisco joined Connell in Washington shortly afterward. During their time in Washington, Connell and Francisco were
viewed by the community as being married
■ With Francisco’s consent, Connell used Francisco’s last name

25
 ■ Additionally, Francisco gave Connell an engagement ring
■ Subsequently, Connell and Francisco separated
■ At the time of the separation, Connell had $10,000 in cash, some jewelry and clothes, a car, and a leased apartment in
New York
■ Francisco’s net worth had increased to approximately $2,400,000, which was attributable in part to the acquisition of
several pieces of real property by Francisco’s companies
■ Connell filed suit against Francisco, seeking an equitable distribution of the property that was acquired during the
relationship
■ The trial court equitably divided the property acquired during the relationship among Connell and Francisco, based on
evidence showing that the property would have been community property had Connell and Francisco been married
■ The trial court further held that the property owned by each party prior to the relationship was not subject to distribution
○ Holding:
■ The trial court properly held that a meretricious relationship existed, necessitating the equitable distribution of property
acquired during the relationship. Further, the trial court correctly held that property acquired prior to the relationship was
not subject to distribution
○ Rule:
■ To establish the existence of a meretricious relationship, a trial court may examine a number of factors, including:
● (1) whether there was continuous cohabitation,
● (2) the duration of the relationship,
● (3) the purpose of the relationship, and
● (4) the pooling of resources
○ Reasoning:
■ Similar to a common-law marriage, a meretricious relationship is a stable, marriage-like relationship in which both parties
cohabitate with knowledge that a lawful marriage does not exist

Fault to No Fault Divorce

● Fault Divorce:
○ Reasoning:
■ The innocent spouse sues the guilty spouse
■ Innocent spouse should be compensated through alimony
○ Grounds (mentioned in PA § 3301(a)
■ Adultery: Circumstantial (inclination + opportunity) or direct evidence
■ Cruelty: from physical violence to mental well-being, but not “mere incompatibility”

26
 ■ Desertion or abandonment
● Actual: usually a time requirement, not a reaction to bad behavior, and w/o consent
● Constructive abandonment: while sharing a roof, couple stops having sex
○ Something happened that would have justified departure
■ Impotence
○ Defenses (mentioned in PA § 3307)
■ Insanity: applied to adultery or desertion
■ Connivance: tricking someone or inducing them to cheat, agreed to or lack of concern for adultery/abandonment
■ Condonation: you know of marital wrong and you resume or continue cohabitation
● Good faith: no per se rule in many states
● Applicability to domestic violence → cycle of abuse complicates this
■ Recrimination: both parties are at fault, then it cancels out → no divorce
● See Kucera v. Kucera - court denied them a divorce because they were both shown to be at fault (her by infidelity,
him by physical abuse)
○ Before no fault divorce
■ Collusion: raised by the court sua sponte

PA Grounds for Divorce

Fault § 3301 (a) No-Fault § 3301 (c, d)

● Desertion ● Mutual Consent

● Adultery ○ Affidavits
● Cruel + barbarous treatment ○ 90 days
● Bigamy - getting married when already married ○ Consent presumed where party convicted of personal
● Imprisonment 2+ years injury crime against the other
● Indignities to render spouse’s condition intolerable and life ● Irretrievable Breakdown
burdensome ○ Living separate + apart for 1 year

Institutionalization § 3301 (b)

for at least 18 months

27
● No Fault Divorce
○ Grounds for no fault divorce
■ Irretrievably broken without possibility of reconciliation
■ Voluntary separation plus consent with judicial hearing
■ Combination fault/no fault → courts can still make you comply with no-fault statutory restrictions (i.e. waiting, living
separately)
■ Desrochers and Flanagan
● #33 Kucera v. Kucera - cruelty, desertion, recrimination
○ Facts:
■ Wife filed for divorce on grounds of mental cruelty (valid in ND). Husband counter-petitioned, saying that his wife had
refused to have sex with him and was having sex with another man.
● Because wife hadn’t had sex with him, court say this counted as “constructive” or “willful” desertion
○ Holding:
■ Court denied them a divorce because they were both shown to be at fault (her by infidelity, him
■ by physical abuse)
○ Rule:
■ Recrimination: both parties are at fault, then it cancels out → no divorce (before no fault divorce)
● #34 Desrochers v. Desrochers - wife doesn’t want to remain married, husband doesn’t want divorce, wife’s consistent no to marriage
= irreconcilable differences = grant divorce
○ Facts:
■ During a separation period, husband agreed to custody, visitation and child support in regards to their daughter. Wife
filed for divorce because she didn’t love husband and he said he had wanted a son, not a daughter. Trial court failed to find
divorce because husband changed his mind about the daughter and loved her now.
○ Holding:
■ Court held that a divorce can be granted when the evidence shows there is an irreparable breakdown of the marriage with
no reasonable possibility for reconciliation between the parties
● The evidence here is that one spouse refused to continue relationship and showed INTENT by filing for a divorce,
which court agrees is enough to prove a “irreconcilable breakdown”
○ Rule:
■ Parties subjective state of mind is determinative of “irreconcilable differences” and whether the parties could reconcile
■ Ct refuses to set forward factors/standard, says it’s case-by-case, but subjective intent matters the most; if one spouse
consistently says she doesn’t want to be married it’s great evidence of irreconcilable differences
○ Reasoning:
■ Husband says grounds of no fault divorce does not exist and says their differences are reconcilable

28
 ● He said he’s been working
● Formerly didn’t want daughter, and now he does
● Has been paying support
■ “Irreconcilable differences” - the fact that she doesn’t want to be with him and that they have been apart for 2.5 years
means that they couldn’t reconcile
● #35 Flanagan v. Flanagan -
○ Facts:
■ Wife left home and claimed “constructive desertion” because husband was intolerable. Husband counterclaimed “actual
desertion” because she left. Since both parties used fault claims, trial court decided to give them “no-fault divorce” based
on “voluntary separation”
○ Holding:
■ Appellate court rejected “voluntary separation” because they only wanted that category to be for couples who get a divorce
in MUTUAL agreement, who actually want marriage to end
● Court upheld divorce order, just disagreed on grounds trial court found for
○ Rule:
■
○ Reasoning:

Equitable Division of Property

● #36 Arneault v. Arneault -

○ Facts:
■
○ Holding:
■ Trial court gave her 35% → changed to 50/50 on appeal because trial court did not value her domestic contributions
appropriately
■ Court held that all parties’ work during the marriage is considered equal regardless of whether their respective earnings
are equal
○ Rule:
■ EQUITABLE DISTRIBUTION doctrine says spouses make contributions to marriage that have value, regardless of
whether those contributions or general or economic (ex: child-rearing, homemaking, etc)
○ Reasoning:

Separate v. Marital Property

29
● #37 Siefert v. Siefert -
○ Facts:
■ Couple fixed up mustang that she brought to the marriage (increased value), she retitled it in both of their names, court
said it was still separate property
○ Holding:
■ Not sufficient evidence of intent to transfer
■ Court found it did NOT meet three prongs of inter vivos gift test. Court held that only a TITLE TRANSFER doesn’t count
as enough evidence, and the donee has BURDEN of proof that the donor gave it to donee.
○ Rule:
■ Change in title not dispositive of transmutation (intent to convert property to shared)
■ Inter vivos gift three prongs: (1) intent of donor to make immediate gift, (2) delivery of property to donee and (3)
acceptance by donee
● This court held that a certificate of the transfer of title did not show intent to transfer IMMEDIATE possessory
interest
○ NOTE: In PA law (§3501), gifts between spouses are marital property, but other gifts are separate.
● #38 O’Brien v. O’Brien - property inherited/gifted during marriage = separate property
○ Facts:
■ Court denied husband 50% of the increase in value that wife received from investing her inheritance → said he was not
active enough to secure transmutation
■ In this case, wife received inheritance and gifts (over $160k) from an aunt. She took out about $5k for marital stuff.
Husband had put in a little bit of money into wife’ account (though less than the $5k she took out for marital things) and
then argued the account was marital because it was “commingled finances.”
■ Husband had burden of proof to show that the property was acquired during marriage and is presently owned, and then
the WIFE gets the burden to show it is property that falls within the STATUTORY definition of separate property.
○ Rule:
■ Putting inheritance in joint account may have been for ease; mere comingling of marital funds w/ separate funds does not
transmute
■ Court held that property acquired during marriage by bequest, devise, descent, or as a gift, is considered separate property
○ Reasoning:
■ Active appreciation vs. passive appreciation - moving from broker to broker wasn’t active enough - they were just
following the recommendations of the broker they were working with
■ ACTIVE: financial or managerial contributions of a spouse to the separate property during the marriage
■ PASSIVE: enhancement of the value of separate property due solely to inflation, or changing economy, etc

30
 ● #39 Thieme v. Aucoin-Thieme -
○ Facts:
■ Couple cohabitated for 8 years, had child, were married for 14 months
■ Wife sacrificed career and raised kid while husband worked with intent to receive large amounts of $$$ if his company
sold
■ They divorced, the company sold, wife sought some of the company’s $$$ going to husband
● He got a large bonus after divorce → they had planned to share it
■ Court included the time they cohabitated when determining her portion
○ Holding:
■ Equitable distribution applies to divorce, not cohabitation
■ They ultimately do award the wife part of the bonus, but not on the basis of equitable distribution
○ Rule:
■ Court can use constructive trust to reach equitable distribution instead

Employment Benefits

● #40 Mickey v. Mickey -

○ Facts:
■ Husband filed motion to clarify the types of assets his ex-wife as entitled to after the dissolution of their marriage. Wife
had received a portion of retirement benefits, but husband starting receiving disability benefits too, due to a workplace
accident
○ Holding:
■ Court awards her a portion of his retirement package → delayed compensation
■ Court denies her a portion of his disability for injury he suffered after divorce → was too speculative, not expected income
○ Rule:
■ 1. Court clarified that disability is “too speculative” at time of dissolution to be considered distributable property AND
■ 2. It was in no way earned during the marriage

Goodwill and Degrees

● #41 McReath v. McReath -

○ Facts:
■ Husband/business-owner had purchased dentist practice with a valuable REPUTATION in its practice.
○ Holding:

31
 ■ Court said dentist’s professional goodwill was marital property → she helped him to get it, should be divided accordingly
○ Rule:
■ McReath approach to valuation: Full discretion → valuate + divide goodwill, professional and personal
■ But In PA: enterprise goodwill is divisible but personal goodwill is not (bc risk)
○ Reasoning:
■ 1. Court recognized each spouse’s contributions.
■ 2. Where salable PROFESSIONAL goodwill is developed during the marriage, it defies presumption of equality to exclude
it from the divisible marital estate.
● #42 Marriage of Harris and Harris -
○ Facts:
■
○ Holding:
■ Court said an MBA was not divisible marital property, even if she helped him to get it → putting a value on it would be too
speculative
○ Rule:
■ MBA not divisible marital property because too speculative, but can look at what spouse contributed and compensate
them with compensatory alimony
● BUT alimony terminates at remarriage → may not get all you’re entitled to
○ Reasoning:
■ Court denies to consider an educational degree as divisible marital property
● 1. Can’t guarantee they will make money off of it, too speculative
● 2. Earning spouse would bear all the risk
■ Court recognizes wife’s contributions to husband’s career/education and so triggers consideration of compensatory
spousal support award. Statutory criteria relevant to determine the appropriate amount of award?
● 1. Amount, duration, and nature of contribution
● 2. Relative earning capacity of parties
● 3. Extent to which the marital estate has already benefitted
● 4. Any other factors courts deems just and equitable
■ Three types of spousal support:
● 1. Transitional spousal support
● 2. Spousal maintenance
● 3. Compensatory spousal support

Alimony Awards and Guidelines

32
● #43 In re Marriage of Gust -
○ Facts:
■ Length of marriage: 27 years → she was a homemaker
■ Earning potential: $22.5k compared to his $92k → due to age and experience, unrealistic to expect her to earn any more
○ Holding:
■ She received permanent alimony
○ Rule:
■ Consider all factors in totality, including length of marriage, contributions to home/children, ability to become
self-sufficient, disparity in annual income, etc.
○ Reasoning:
■ Allowed perma support b/c marriage was so long and disparity was so large
■ Ct said questions of future retirement should be raised in modification action
■ Long term marriages - property is more likely to be comingled and it’s harder to untangle them
● #44 Zaleski v. Zaleski - retributive alimony
○ Facts:
■ Mrs. Zaleski (plaintiff) filed a complaint seeking a divorce from Mr. Zaleski (defendant)
■ They were married for 16 years
■ At the time of the trial, the wife was 45 years old and the husband was 48 years old
■ Both parties were educated, experienced professionals who were employed full time for much of the marriage
■ The husband’s annual income was approximately $400,000, the wife’s annual income was approximately $170,000 until
2008, when she lost her job (3 years prior to case)
■ The trial court found that the wife was employable and wished to be employed
■ The trial court awarded the wife rehabilitative alimony of $11,667 per month for a five-year period
■ The wife appealed, claiming that she was entitled to general term alimony as opposed to rehabilitative alimony
○ Holding:
■ Court awarded her 5 years of rehabilitative alimony, she wanted permanent alimony (said she could no longer make what
she used to in medical sales)
○ Rule:
■ A court can award rehabilitative alimony, based on the potential of the spouse’s future reemployment, if the court finds a
reasonable degree of certainty of such future reemployment
● courts analyze the spouse’s prior employment and future employability to determine that the spouse will become
self-sufficient in the near future

33
 ■ Retributive alimony = A spouse pays rehabilitative alimony to the other spouse until the other spouse becomes
self-sufficient
○ Reasoning:
■ Wife is an educated professional with years of experience prior to her losing her job
■ Although she has been out of work since 2008, she is employable and has indicated a willingness to find reemployment
■ Based on the record, the wife will be able to find suitable reemployment in the near future
■ Although there is no specific date of such self-sufficiency in the future, there is sufficient evidence on which to base an
award of rehabilitative alimony as opposed to general term alimony

Child Support

● #45 Tuckman v. Tuckman - problem where income exceeds basic obligations chart
○ Facts:
■
○ Holding:
■ even where income exceeds table it is abuse of discretion for trial judge to not reference guidelines; top of chart must be
starting point
○ Rule:
■
○ Reasoning:
● #46 In re Marriage of Turk - custodial parent paying support to non-custodial parent
○ Facts:
■ She made $10k, he made $150k
■ She had significant visitation → would need $$ to provide for children during visitation
○ Rule/Holding:
■ Where primary custody parent made more money but kids spent some time w/ noncustodial parent court found custodial
parent had to pay
○ Reasoning:
■ Purpose of rules to give child benefit of income; equalize households
■ In best interest of child- don’t want jumping b/w standards of living
■ The terms of the statute being construed allows for custodial to pay

Voluntary Changes in Income

34
 ● #47 Sharpe v. Sharpe -
○ Facts:
■ Mother wanted to return to the native, eskimo lifestyle she had grown up with
● Wanted to raise her children this way too → Troxel
○ Holding:
■ Court denied change to support order because she voluntarily quit job
○ Rule:
■ Changed circumstances balancing test:
● Factors- whether reduced income is temporary, whether change is result of econ factors or of purely personal
choices, children’s needs, and parents’ needs and financial abilities (w/ priority to fulfilling child’s needs)
○ Reasoning:
■ Court looks at the impact it would have on the father
■ She had a drinking problem when working the high paying job + living in the city
■ Court said these reasons weren’t enough → Dissent said they were

New Families

● #48 Peterson v. Peterson -

○ Facts:
■
○ Holding:
■ ex-wife could not continue to receive spousal support from ex-husband after she was remarried
○ Rule:
■ Does not matter that new husband could not provide the same lifestyle she was used to → when you remarry, you agree to
the lifestyle the new husband provides
○ Reasoning:
■ Idea is spouses owe legal duty of financial reciprocal support, by remarrying your new spouse is signaling intent to take on
that duty (Peterson- marries poorer guy)
● Contract- you can contract around remarriage ban but must be explicit
● Property- can try to argue the spousal support was really a property award
● Exceptional Circumstances- marrying poorer guy doesn’t count though
● NJ & ALI would ask whether change supplants purpose of initial award
● #49 In the Matter of Raybeck -
○ Facts:

35
 ■
○ Holding:
■
○ Rule:
■ Cohabitation can cancel spousal support order where resembles marriage - look for continuity and assumption of marital
obligations
● Factors- financial arrangements b/w the two people such as shared expenses, whether and to what extent one
person is supporting the other, the existence and use of joint bank accounts or shared investment or retirement
plans, a life insurance policy carried by one or both parties benefiting the other, and similar financial
entanglements (totality of circumstances, age can be factor)
○ Reasoning:
■ Said cohabitation was more of a roommate situation → no sex, separate beds, separate finances, sometimes held
themselves out as a couple
■ Court notes that older people often have less comingling of finances
■ Read cohabitation bans fairly narrow; just want to catch people gaming the system
● #50 Harte v. Hand - equal treatment of children when 2 payees (2 different mothers)
○ Facts:
■ Father has 3 children - 1 child living with him, 2 children that he is liable for child support from 2 different relationships
■ Fathers get deduction from imputed annual income - whichever child is designated the “initial order”, that child support
payment is deducted from D’s available income when calculating the support order for the other child
■ 2 competing rationales:
● (1) Treat children & mothers equally
● (2) Not requiring father to pay inappropriately high level of support for both children
■ Due to the deduction, the child support was only accounting for 2 out of 3 children
○ Holding:
■ Remanded for recalculation
○ Rule:
■ Calculation instead should be:
■ (1) Should take deduction for child living with him
■ (2) D should then pay the average of (1) if father if did not take the deduction for other child support payment and (2) if
father did take the deduction for other child support payment (& does this for both payees)

Foundations of Child Custody - ALWAYS DISCUSS BIOC!!

36
● § 5323. Award of custody. (BIOC FACTORS)
● (a) Types of award.--After considering the factors set forth in section 5328 (relating to factors to consider when awarding custody), the
court may award any of the following types of custody if it is in the best interest of the child:
○ (1) Shared physical custody.
○ (2) Primary physical custody.
○ (3) Partial physical custody.
○ (4) Sole physical custody.
○ (5) Supervised physical custody.
○ (6) Shared legal custody.
○ (7) Sole legal custody.
● #51 Painter v. Bannister - BIOC, grandparents get custody over father
○ Facts:
■ Mark (7 y/o) lives with his grandparents (Bannisters) because his mother and sister died in a car accident and father asked
them to care for him
■ Dad (Painter) remarried and wants him back
■ Court says Bannister home is stable, orderly, Mark is thriving
■ Painter (father) court says is doing ok, has a house, but is a dreamer with financial problems who makes bad choices -
Mark would have less structure
■ Neither claims the other would be unfit parent
○ Holding:
■ Held Mark’s best interests are to remain with grandparents, Bannisters
○ Rule:
■ Best Interests of Child (BIOC)
■ Can go to third party (grandparent) if in the best interests of the child
■ Court ruled against the presumption that it is best for child to be with parent → Troxel
○ Reasoning:
■ Court notes obstacles to grandparents keeping Mark:
● (1) presumption that parents should have custody
○ Constitutional right to care, custody and control to parent from Troxel
● (2) Mother’s will named her husband the guardian (and her mother secondary) and should be given consideration
● (3) Bannisters are 60 years old and will be over 70 years old by time Mark graduates from HS
■ Placed great reliance on child psychologist testimony who said that based on adoption studies “Mark will go wrong if he is
returned to his father” - studies were based on children who are changed from ages 6-8 to a person with instability
(instability = no attempt to establish a strong relationship)

37
 ● Mark has established father-son relationship with grandpa (Bannister) which he never had with his father
● #52 J.R. v. M.S. -
○ Facts:
■ J.R. (plaintiff) and his wife M.S. (defendant) had one child together
■ Both parents were professionally successful and had a good relationship with the child.
■ J.R. had an argumentative personality that made co-parenting after the divorce difficult
■ The parties agreed on major decisions, such as the child’s school and pediatrician, but generally the parties could not make
joint minor decisions (e.g. summer camp)
■ The parties tried to agree to a Parenting Plan on many occasions
● Parenting plan: like a schedule, transportation, responsibility for bills, extracurricular activities, etc.
■ Ultimately, both parties agreed that joint decision-making was not a viable option
○ Holding:
■ Court is going to have some issues hybrid (joint decision making) but for big ticket items
○ Rule:
■ Court can designate certain zones where each parent has final say
○ Reasoning:
■ Areas where father is acting in self-interest and not BIOC, mom decides
■ ???
● Stat. Suppl. Sections 5323 (Award of Custody) and 5331 (Parenting Plans)

Shared Custody

● #53 Deyle v. Deyle - Factors to consider when awarding custody, for PA see § 5328
○ Facts:
■ Mom has been primary caretaker for most of the children’s lives (and after separation), but mom testified about intent to
become a dental hygienist and possibility of future move to find work
■ Parents separated in June 2010 (decision is 2012) when husband moved out and moved into an apartment. Husband
stopped paying mortgage and house was foreclosed, so mom and children moved in with mom’s parents
■ isn’t primary custodian at time of order because of the possibility of future relocation of mom (not in BIOC)
○ Holding:
■ Court decided dad having custody was in BIOC, affirmed lower cts decsion
○ Rule:
■ Court relies on North Dakota statute factors, see PA §5328 factors to consider when awarding custody for our state!
○ Reasoning:

38
 ■ Court relies on factors from North Dakota statute used:
● (d) the sufficiency and stability of each parent’s home environment, the impact of extended family, the length of
time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home
and community
● (e) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship
between the other parent and the child
○ used a forward-looking approach to the stability of the family unit, its interrelations and environment,
versus the backward looking factor (d)
● (h) the home, school, and community records of the child and the potential effect of any change
○ Forward looking
● (k) addresses the negative influence of third parties, not the positive influence of extended family
■ (m) any factors considered by the court to be relevant to a particular parental rights and responsibilities dispute Court
focuses on impact of factor (d) for relocation most, and also a bit of factor (h) and (m)
○ Dissent:
■ Court did not give sufficient weight to Christina’s status as the primary caretaker of the children, or to Eric’s failure to
financially support the children
■ Although there is not a presumption in favor of the primary caregiver, the court should not ignore the status of the
primary caregiver in its custody analysis
■ Determining the continuity factor solely on geography and Christina’s potential moves without considering her status as
the primary caregiver was clearly erroneous
■ Court’s discussion of the potential moves was speculative and not supported by the record
■ Christina’s move out of her parents’ home was actually Eric’s fault due to his failure to pay the mortgage on the marital
home, resulting in its foreclosure. Accordingly, that potential move should not be used against Christina
● § 5328. Factors to consider when awarding custody.
○ (a) Factors.--In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant
factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
■ (1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another
party.
■ (2) The present and past abuse committed by a party or member of the party's household, whether there is a continued
risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and
supervision of the child.
● (2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with
protective services).
■ (3) The parental duties performed by each party on behalf of the child.

39
 ■ (4) The need for stability and continuity in the child's education, family life and community life.
■ (5) The availability of extended family.
■ (6) The child's sibling relationships.
■ (7) The well-reasoned preference of the child, based on the child's maturity and judgment.
■ (8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the child from harm.
■ (9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate
for the child's emotional needs.
■ (10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of
the child.
■ (11) The proximity of the residences of the parties.
■ (12) Each party's availability to care for the child or ability to make appropriate child-care arrangements.
■ (13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A
party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with
that party.
■ (14) The history of drug or alcohol abuse of a party or member of a party's household.
■ (15) The mental and physical condition of a party or member of a party's household.
■ (16) Any other relevant factor.

Custody Modification

● PA § 5338. Modification of existing order.

○ (a) Best interest of the child.--Upon petition, a court may modify a custody order to serve the best interest of the child. . . .
● #54 Arnott v. Arnott -
○ Facts:
■
○ Holding:
■ Court said mother moving across country required a modification of custody using BIOC
○ Rule:
■ Factors for determining whether relocation is in BIOC - see PA § 5337
■ Again boils down to BIOC
○ Reasoning:
■ Mother wanted to move to VA for a job → she gave notice that she was told to give via parenting agreement
● § 5337. Relocation.

40
 ○ (h) Relocation factors.--In determining whether to grant a proposed relocation, the court shall consider the following factors,
giving weighted consideration to those factors which affect the safety of the child:
■ (1) The nature, quality, extent of involvement and duration of the child's relationship with the party proposing to relocate
and with the nonrelocating party, siblings and other significant persons in the child's life.
■ (2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child's physical,
educational and emotional development, taking into consideration any special needs of the child.
■ (3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody
arrangements, considering the logistics and financial circumstances of the parties.
■ (4) The child's preference, taking into consideration the age and maturity of the child.
■ (5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child
and the other party.
■ (6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not
limited to, financial or emotional benefit or educational opportunity.
■ (7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or
emotional benefit or educational opportunity.
■ (8) The reasons and motivation of each party for seeking or opposing the relocation.
■ (9) The present and past abuse committed by a party or member of the party's household and whether there is a
continued risk of harm to the child or an abused party.
■ (10) Any other factor affecting the best interest of the child.
● #55 Niemann v. Niemann - modification, domestic dispute
○ Facts:
■ Niemanns got divorced and had 2 kids, originally sole physical custody with mom
■ Both parents were remarried
■ 6 years later both parties agree for daughter to move in with father
■ 1 year later father petitions for son to be transition to him as well
■ Comes out there may have been domestic violence in mother’s home
○ Holding:
■ Trial court had found for father, but court of appeals said there wasn’t sufficient findings of fact in record regarding BIOC
to conclude in favor of father, reversed and remanded for further proceedings
○ Rule:
■ ND: Court can consider modification if after 2 year period following date of custody order:
● (a) on the basis of the facts that have arisen since the prior order or which were unknown to the court at the time
of the prior order, a material change has occurred in the circumstances of the child or the parties, and
● (b) modification is necessary to serve the BIOC

41
 ■ PA: just one step for modification - BIOC analysis (5338(a) above)
○ Reasoning:
■ Dlimenna: In ND there is a general definition of domestic violence that includes imminent fear
■ Other definition: Serious bodily injury or pattern of domestic violence
● Once this occurs, there is a presumption against parent where this occurs
■ Court of appeals says that domestic violence is not just confined to parents, and at least one of the children was reasonably
fearful
■ Also said general rule do not want to separate siblings in custody cases
○ Dissent:
■ Shouting, disagreement, and loud words - we have a threshold for a reason, if there was no harm, moving a child is a BIG
change that would have ripple effects

Parental Behavior

● #56 Weisberger v. Weisberger -

○ Facts:
■ Parties signed agreement as they were divorcing (because wife said she was gay) to bring the children upbringing as
hasidic (orthodox upbringing)
● When they were looking to divorce, wife did not consult lawyer, but she consulted rabbi
■ Mother has residential custody, father did not let children come to his house but only visited with them while at his
parents’ house
■ Father wants to modify because: Mom is gay, and transgender man moves in with her
○ Holding:
■ Held children’s best interests would be better served by more limited modification of religious upbringing clause than that
proposed by mother - father can have final decision making authority over children’s education and to continue to permit
him to require the children to practice full Hasidic religious observance
○ Rule:
■ A court will enforce a custody agreement that provides for a specific religious upbringing for a child only so long as the
agreement is in the best interests of the child
○ Reasoning:
■ Court says they will NOT use a parent’s sexuality in a custody hearing

42
PROPERTY DIVISION SUMMARY

STEP 1: Determine what is marital property → PA § 3501

● All property acquired during marriage and increased value of separate property
● Marital property excludes:
○ Premarital property
○ Excluded by agreement
○ Acquired by non-spousal gift, inheritance
○ After final separation
○ Disposed of in good faith prior to final separation
○ Some veteran’s benefits
○ Award or settlement of claim if claim arose prior to marriage or after date of final separation
● Problems
○ Transmutation by voluntary act of the owner
■ Siefert - Couple fixed up mustang that she brought to marriage (increased value), she retitled it in both of their names,
court said it was still separate property
○ Mixed or co-mingled with marital property
○ Increase in value or income from separate property during marriage
■ O’Brien - Court denied husband 50% of the increase in value that wife received from investing her inheritance → said he
was not active enough to secure transmutation
○ Counting pre-marriage co-habitation?
■ Aucoin-Thieme - Court can use constructive trust to reach equitable distribution
● Couple cohabitated for 8 years, had child, and were married for 14 months
● He got a large bonus after divorce → they had planned to share it
● Court included the time they cohabitated when determining her portion
■ Dividing delayed compensation
● Some solutions:
○ Tracing out
○ Reasonable return; compensation for services
○ Source of funds; increase attributable to marital efforts/funds
STEP 2: Dividing marital property → Remember the factors → PA § 3502
● Property division is not modifiable → FINAL
● As court deems just, without regard to marital misconduct, considering:

43
 ○ Duration, prior marriage
○ Contributions: to acquisition, development, or dissipation of assets; to education, training, increased earning power, including
homemaking
○ Needs: Age, health, station, employability, liabilities, amount and sources of present and future income
○ Standard of living during marriage
○ Tax ramifications
○ Custodian of child
● Justification for Equitable distribution
○ Contribution: what you put into the marriage; problem of unpaid domestic services
■ Arneault - Trial court gave her 35% → changed to 50/50 on appeal because trial court did not value her domestic
contributions separately
○ Need: what you need to maintain your standard of living; problems of prediction and duration
○ Economic misconduct: use of property for purposes unassociated with marriage, when marriage is breaking down and with the
intent to deprive spouse of benefit
○ Judicial discretion in determining weight of relevant factors
● Division of New Property → if it is speculative, it is probably not marital
○ Valuation and allocation of risks
○ Pension division (QRDOs)
■ QRDO: Qualified Domestic Relations Order
● Applies only to employee benefit or pension plans subject to ERISA (Employee Retirement Income Security Act)
○ Employers get tax breaks for providing
○ Vest more quickly
● Plan pays ex-spouse directly
■ Mickey - distribution of pension
● Court awards her a portion of his retirement package → delayed compensation
● Court denies her a portion of his disability for injury he suffered after divorce → was too speculative, not expected
income
○ Goodwill in professional practices / closely-held businesses
■ McReath - Court said dentist’s professional goodwill was marital property → she helped him to get it, it should be divided
accordingly
■ Three approaches to valuation
● No valuation of goodwill → just salvage assets
● Full discretion → valuate and divide goodwill, professional and personal (McReath)

44
 ● Separate enterprise and personal goodwill (PA) → requires distinguishing what is personal from what is
enterprise to assess divisible value
○ Degrees, licenses and earning capacity (Marriage of Harris and Harris)
■ Marriage of Harris and Harris - Court said MBA was not divisible marital property, even if she helped him get it →
putting value on it would be too speculative
■ Can look at what spouse contributed and compensate them with compensatory alimony
● Issue: terminates at remarriage → may not get all you’re entitled to

45
STEP 3: Alimony/Spousal Support

46
● Types of alimony:
○ Traditional/permanent: support comparable to what was experienced in marriage
■ Downside: indefinite, continued ties
■ Pretty rare these days
○ Rehabilitative: get them back on their own feet
○ Reimbursement/compensatory: gets you back what you contributed
● Mainly determined by need and ability to pay
● Limited duration in many cases but long-term support for long-term marriages
○ Want parties to have a clean break
● Arguments for non-monetary contributions to marriage
○ In re Marriage of Gust - She received permanent alimony
○ Length of marriage: 27 years → she was a homemaker
○ Earning potential: $22.5K compared to his $92K → due to age and experience, unrealistic to expect her to earn any more
● Multi-factor analysis:
○ Statutory factors: e.g., UMDA § 308: Grounds for maintenance (sufficient property for reasonable needs, care for children, no
appropriate employment) and duration
○ 23 Pa. Cons. Stat. § 3701
● Trend toward guidelines (Zaleski) or formulas (AAML Guidelines)
○ Zaleski: Court awarded her 5 years of rehabilitative alimony, she wanted permanent alimony (said she could no longer make what
she used to in medical sales)
○ AAML Formula: Calculate 30% of the presumed payor's gross income minus 20% of the presumed payee's gross income
■ Amount should not exceed 40% of the parties' combined gross income
● PA Alimony. PA CSA § 3701
○ Court may grant alimony, as it finds reasonable, only if a court finds alimony necessary
■ Courts have discretion to determine what is reasonable and necessary
■ Statement of reasons: Court must explain reasons for granting or denying alimony award
● Factors determine “necessary” and the nature, amount, duration and manner of payment
● Consider the relevant factors (17 factors listed)
○ Including relative duration, earnings, ages, condition, income, expectancies and inheritances, effect of custodial status, standard of
living, need for education and time to gain appropriate employment, assets and liabilities, property brought to marriage,
contribution as homemaker, marital misconduct prior to final separation (and abuse post-separation), tax, ability to be
self-sufficient
● Duration: can be definite or indefinite (b)
● Modification + termination: can be modified, suspended, terminated, reinstituted or a new order made

47
 ○ Remarriage terminates the award
● PA considers marital misconduct

Step 4: Child Support Orders

● Federal Guidelines: Shows basic support amount based on each state’s table (update every 4 years)
○ States must provide deviation factors (e.g. extraordinary needs, fixed expenses, or other household income)
● Income shares model: Used to determine how much each parent owes of the guideline amount
○ What is income?
■ Tuckman: she said she could not access money on her tax return, was tied up in business
■ Court must determine actual income of parties and follow guidelines
■ If court does not follow the guidelines, they must say why
○ High-income parents (e.g., over $30k/month) v. imputing income to underemployed parents
■ PA uses a formula based on the income-shares model (top is $30k/month)
■ Above 30k → +8% of net income above that amount
■ Plus, consider deviation factors
○ Steps to determine:
■ Determine income
■ Determine child care expenses
■ Calculate non-custodial parent’s share
● Obligation is pro-rated based on that parent’s proportion to the income
● Child support + custodial time
○ Who pays + how long
■ Paid by biological parent, adoptive parent, married father upon separation
● Step parents do not need to pay
■ Pay until 18, longer if adult child with serious disabilities
○ Non-custodial parent pays custodial parent
■ Presumption that payments will be used for child’s expenses
■ Discounts for joint custody or overnights
○ Once a parent’s time reaches a set level, child support amount reduced
■ PA example: 40-50% of child’s time = 10-20% reduction in award
■ Standard is for non-custodial parent to have custody 30% of the time
■ In a 50/50 custody split → parent who makes more pays
■ Issues with Child support
○ Problem of the higher-earning, custodial parent

48
 ■ In re Marriage of Turk: Court awarded the non-custodial parent child support
■ She made $10k, he made $150k
■ She had significant visitation → would need $$ to provide for children during visitation
○ Uses only current income → does not take into consideration that changes may happen
○ In-kind contributions not counted toward support amount
● Modification of Spousal or Child Support
○ Voluntary v. Involuntary (Sharpe)
■ Sharpe - Court denied change to support order because she voluntarily quit job
● Mother wanted to return to the native, eskimo lifestyle she had grown up with
○ Wanted to raise her children this way too → Troxel
■ Court looks at the impact it would have on the father
■ She had a drinking problem when working the high paying job + living in the city
● Court said these reasons weren’t enough → Dissent said they were
○ Remarriage, cohabitation
■ PA CSA § 3705, 3706
■ Peterson - ex-wife could not continue to receive spousal support from ex-husband after she was remarried
● Does not matter that new husband could not provide the same lifestyle she was used to → when you remarry, you
agree to the lifestyle the new husband provides
■ Raybeck - Court examined qualities of new relationship to determine spousal support should continue
● Said cohabitation was more of a roommate situation → no sex, separate beds, separate finances, sometimes held
themselves out as a couple
● Court notes that older people often have less comingling of finances
■ New family obligations
● Harte - Court says 1st born shouldn’t benefit more than later child from 2nd marriage
○ Use formula to average making each child #1, #2, etc. → children each receive an equal amount from
employment injury award
■ Differences between alimony and child support
● Child support → duty parent owes to the child

Step 5: Child Custody Orders

● Best interests principle → all about what is in the best interest of the child
○ Defining best interest of the child:
■ Bannister - Court ruled in the BIOC to keep son with grandparents over dad
● After tragic accident, dad sent son to live with grandparents

49
 ● Grandparents did not want to give Mark back → court saw that they provided stability
○ Did not like dad’s photographer/artist lifestyle (unpainted house)
● Court ruled against the presumption that it is best for the child to be with parent → Troxel
● Mark ended up back with his dad
○ Shared parenting
■ Physical v. legal custody
● Physical custody: where child lives
● Legal custody: who is able to make decisions regarding the child
■ JR v. MS - court can designate certain zones where each parent has final say
● Court wants to make custody work → even when dad is a jerk
○ Primary caregiver
■ Deyle - Court overlooked what mom had put in as primary caregiver
● Gave father primary custody because mother had applied to a dental hygienist program 40 minutes away →
speculated that she might move, would not be in BIOC
○ Mom never said she was going to move
○ Court liked that father had gotten them involved in community + planned to stay living there
● They were originally kicked out of home because father stopped paying mortgage
○ Conflicts in Shared Parenting
■ Relocation: Pa. CSA § 5337
● Arnott - Court said mother moving across country required a modification of custody using BIOC
■ Domestic violence
● Niemann: Court said the charge of domestic violence was not enough to warrant custody change
○ Remands to determine custody in name of BIOC
○ Parenting plans and BIOC factors
○ Legal + physical custody: Pa. CSA § 5322
■ Legal custody: The right to make major decisions on behalf of the child, including, but not limited to, medical,
religious and educational decisions
● Can be shared or sole
■ Physical custody: actual physical possession and control of a child
● Partial: right to assume physical custody of the child for less than a majority of the time
● Primary: right to assume physical custody of the child for the majority of time
● Shared: right of more than one individual to assume physical custody of child, each having significant
periods of physical custodial time with the child
● Sole: right of one individual to exclusive physical custody
○ Best Interest Factors: Pa. CSA 5328

50
 ■ Safety (weighted)
● Risk of harm
● Abuse
● Substance abuse
■ Cooperation and conflict
● Ability to co-operate
● Level of conflict
● Proximity of residences
○ Child development and needs
■ Stability
■ Continuity
■ Emotional needs
■ Daily care
■ Marital support
■ Availability of extended family
■ Child’s sibling relationships
○ Parental behavior
■ Mental
■ Physical condition of parent (or person in parent’s household)
○ Preference of child (based on maturity and judgment
○ Any other relevant factor (16 factors)

Modification of Custody
○ Majority approach: two step – modification for substantial or material change and change is in best interests
○ Minority of approach (PA): one step – best interest analysis
○ Visitation rarely denied unless visitation poses harm or detriment to the child

POLICY QUESTION
What is a Family?
(Contract v. status, form v. function)

Martha Albertson Fineman → Why Marriage? (2001)

51
Carol Sanger → A Case for Civil Marriage (2006)

○ Marriage serves a channeling function → lays out expectations

○ Proposes idea of privately negotiated contracts for marriage

Marsha Garrison → The Decline of Formal Marriage: Inevitable or Reversible? (2007)

Cynthia Grant Bowman → Social Science and Legal Policy: The Case of Heterosexual Cohabitation (2007)

Family Support Duties

Mary Anne Case: Enforcing Bargains in an Ongoing Marriage (2011) Looks to how different countries have historically enforced marriage
bargains:
● Late Medieval and early modern:
○ France and Italy: similar to modern US
■ Women often had their own property to bring to a marriage
○ English
■ Women did not have their own property
● Modern Era:
○ Jewish and Islamic legal systems have been more willing to enforce bargains in an ongoing marriage
■ Case says that under Jewish law, McGuire would have been required to give his wife the living standards deemed by the
court
○ Anglo-American legal system are less likely to enforce bargains in an ongoing marriage → grew from Christian canonical notions
of marriage as a sacrament

Lee E. Teitelbaum: Family History and Family Law (1985)

● American family shifts: to enucleated family
○ Hierarchically ordered household closely integrated with the community TO
○ Egalitarian, companionate family sharply separated from the public world
● Family autonomy: Courts typically don’t want to enter support decrees for a marriage that is still intact → this just continues status quo
and hurts wives
○ This hurt Lydia McGuire → she could not buy any of the things she needed
○ Could not solve her problem while in the marriage

52
Bruce C. Hafen: The Family as an Entity (1989)
● Keeping the family private keeps people from legal recourse and can even foster abuse.
● Intervening has its own problems → state can cause long term harm to a child when it intervenes

John Kenneth Galbraith: Economics and the Public Purpose (1973)

● “The modern household does not allow expression of individual personality and preference. It requires extensive subordination of
preference by one member or another”
● Idea of the household: buries the woman inside it and then recreates the household as an individual consumer.
● Income gives man authority over how income is used → over household in general
○ Head of household
● Woman runs administration of consumption
○ Society celebrates this → i.e. woman holds the purse strings
○ Really it is just to the power to implement decisions, not make them.

Elizabeth R. Carter: The Illusion of Equality: The Failure of the Community Property Reform to Achieve Management Equality (2015)
How spouses manage money is an indicator of the level of equality in a relationship.

● Equal management: Actually applies to relatively few transactions

● Joinder required: All equal management states require the joinder of both spouses in various transactions affecting community real
property
○ Some limit one spouse’s ability to make gratuitous transfers of community property to third parties
● Exclusive management by one spouse: A couple states recognize a “business exception” to management → spouse who is manager of a sole
proprietorship has the exclusive right to engage in various acts of management affecting the business.
○ Law does not ban spouse’s from depositing money into bank accounts only in their own name

1. Separate money/women’s control

2. Separate money/men’s control
3. Separate money/equal control
4. Pooled money/women’s control
5. Pooled money/men’s control
6. Pooled money/equal control

Premarital Agreements

53
Brian Bix → Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage (1998)
● Pushes back against the Simeone courts use of traditional contract law (caveat emptor) when looking at premarital agreements.
○ Says they could also apply UCC §2, which requires parties exercise good faith and fair dealing
● Parties are unlikely to think rationally when it comes to premarital contracts
○ Planning for the worst when that seems unthinkable
● Courts increasingly upheld agreements despite one party being at a clear advantage to the other → These might not be upheld on
non-marital contracts

Separation Agreements

Robert H. Mnookin & Lewis Kornhauser: Bargaining in the Shadow the Law: the Case of Divorce (1979)
● Existing law says state/judges have the power to determine who should have custody and on what conditions → parens patriae
● Private agreements are common, but do not bind the court
○ These are typically rubber stamped → gives parents power
● Why state gives power to parents:
○ State has little resources for a thorough and independent investigation of the family’s circumstances
■ Parents may be unwilling to provide info that can upset their arrangements
○ Legal standards are vague → Give judges little guidance as to what circumstances justify overriding a parental decision
○ Court can only do so much to enforce once the parents leave court

Common Law Marriages

Mary Ann Glendon → Marriage and the State: The Withering Away of Marriage (1976)
● Reasons to enter informal rather than legal marriage:
○ Economic advantages
■ Often for elderly people → Social Security system inflicts financial penalties on elderly citizens who remarry
○ Inability to enter a legal marriage
○ Unwillingness to be subject to the legal effects of marriage
○ Desire for a “trial marriage”
○ Lack of concern with the legal institution
● Informal marriages exist in every society → must find a way to deal with them
● In the past, the legal response to cohabitation was to pretend it was a marriage → States have become less and less accepting of common
law marriage

54
Michael Grossberg → Governing the Hearth (1985)
● History of informal marriages in the American colonies
○ Generally seen as a marriage if man and woman lived together
● 19th Century moral panic → Used legal coercion to encourage non married couples to adhere to orthodox republican matrimonial
practices
○ Made common law marriage more rare → still a legal option

Fault to No-Fault Divorce

Lawrence Friedman → Rights of Passage: Divorce Law in Historical Perspective (1984)

Alimony Awards and Guidelines

Chester G. Vernier & John B. Hurlbut → The Historical Background of Alimony Law and Its Present Structure

Catherine G. Peele → Social and Psychological Effects of the Availability and the Granting of Alimony on the Spouses

Judith G McMullen → Alimony: What Social Science and Popular Culture Tell Us About Women, Guilt, and Spousal Support After Divorce
(2011)

Twila Perry → Alimony: Race, Privilege, and Dependency in the Search for Theory (1994)

Paula England & George Farkas → Households, Employment and Gender (1986)
● Women typically make more relationship-specific investments than men
○ Having children and staying home to raise them
○ Take major responsibility for the instrumental and expressive work of the household
○ Tend to accumulate less that is of value outside of the relationship
● Men accumulate resources that are useful outside as within their current relationship
○ Focus on advancing career
■ Woman benefits from this as long as the relationship persists
○ Husband continues to benefit from career focus after the relationship ends
■ Earning power is liquid → easily transferable to a new life

55
Herma Hill Kay → Equality & Difference: A Perspective on No-Fault Divorce & Its Aftermath (1987)
● Need to withdraw legal support for a gendered setup in marriages → will facilitate the move toward more equality in marriages
● Increased focus on:
○ Gender-neutral family laws
○ Sharing principles in marital property law

Ira Mark Ellman → The Theory of Alimony (1989)

● Makes sense for the party with lower earning capacity to stay home with the children
○ This works okay until the relationship breaks down
● Alimony is intended to compensate for the residual loss in earning capacity that arises from the division of marital duties.
● Alimony “protects marital decision-making from the potentially destructive pressures of a market that does not value marital investment
as much as it values career enhancement” (p.359)

J. Thomas Oldham → Putting Asunder in the 1990s (1992)

● A broad concept of a woman’s career damage due to child care responsibilities does not justify a goal of post- divorce equal living
standards
○ Due to pay gap, the woman would not make the same amount as the man anyways

Joan Williams → Is Coverture Dead? Beyond a New Theory of Alimony (1994)

● Ellman’s focus on reimbursing the wife for losses in her earning capacity presents two problems:
○ His model for measuring a wife’s losses omits the losses typically experienced by lower-status wives.
■ Service sector worker does not suffer the same direct decrease in earnings as an attorney who leaves the partner track
○ Forgets to focus on the benefit the husband experiences
● Wages of the family should be jointly owned → otherwise it is still coverture
○ Must equalize the incomes post divorce

Child Support

Leslie Harris, Dennis Waldrop & Lori R. Waldrop → Making and Breaking Connections Between Parents’ Duty to Support and Right to
Control Their Children (1990)

Robert G. Williams → Guidelines for Setting Levels of Child Support Orders (1987)

56
 ● It is difficult to separate a child’s share of major household expenses like food, housing and transportation
● % of income spent on children varies between income levels → cost of 1 child:
○ 26% of low-income households
○ 19.2% of higher income families
● Different methods for determining support:
○ Flat Percentage Guideline: sets child support as a percentage of obligor income, with the percentage carrying according to the
number of children
■ Wisconsin → most well-known example of flat percentage guideline
● 1 child: 17%
● 2 children: 25%
● 3 children: 29%
● 4 children: 31%
● 5+: 34%
○ Income Shares Model: based on the presumption that children should receive the same proportion of parental income that they
would have received if the partners lived together → Determines this by computing:
■ Income of the parents added together
■ Basic child support obligation based on the combined income, using
● Economic data
● Past history of spending on children
■ Total obligation is pro-rated between each parent based on their proportionate shares of income
○ Delaware Melson Formula: Parents are entitled to keep sufficient income for their most basic needs to facilitate continued
employment → until the basic needs of children are met, parents should be permitted to keep any more
■ Children are entitled to share in any additional income → can benefit from the absent parent’s higher standard of living

Jane C. Venohr → Child Support Guidelines and Guidelines Reviews: State Differences and Common Issues (2013)
● Most states use the Income Shares Model
● Some states with relatively high or low incomes or housing costs make additional adjustments to account for their particular state’s
economic circumstances

Leslie Joan Harris → The Proposed ALI Child Support Principles (1999)
● Issues with the existing child support guidelines → what the parents spent or would spend if they lived together does not really matter any
more, very different needs once the parents are living apart
● Need to consider the economic standard of living in the households of the parents, rather than relative incomes
○ If children live in house with higher standard of living, they will receive less in support

57
 ● Interests of the Child: Instead of aiming for what is in the child’s best interest, ALI goals:
○ Allow the child to enjoy a minimum decent standard of living when the resources of both parents together are sufficient to achieve
such result without impoverishing either parent
○ Allow the child to “enjoy a standard of living not grossly inferior to that of the child’s higher income parent”
○ Prevent the child from suffering “loss of important life opportunities that the parents are economically able to provide without
undue hardship to themselves or their other dependents”
● Interests of the Residential Parent: Not to bear disproportionately the direct and indirect cost of child rearing
● Interests of the Nonresidential Parent: Compare the standard of living of each household after payment of child support to the standard of
living that the parties would enjoy if they all lived in the same household

Jo Michell Beld & Len Biernat → Federal Intent for State Child Support Guidelines: Income Shares, Cost Shares, and the Realities of Shared
Parenting (2003)
● Cost share guidelines are different than income share guidelines
● Cost share guidelines:
○ Use a Melson formula approach to the determination of income
○ Rely on estimates of expenditures on children in single-parent families after offset for “tax benefits attributable to the children”
○ Apply a joint custody cross-credit approach to the calculation of the final support obligation

Foundations of Child Custody

Michael Grossberg → Governing the Hearth: Law and the Family in Nineteenth Century America (1985)

● In the past (Angl0-American law) fathers were granted an almost unlimited right to the custody of minor legitimate children
○ Based on medieval legal rights with property ownership
○ Interests of children were best protected by property-based standard of parental fitness
■ “Assets of estates in which fathers had a vested right”
■ Services, earnings and the like became property of parental masters in exchange for life and maintenance
● Dual nature of paternal authority (1836 Legal Outlines by University of Maryland prof. David Hoffman):
○ (1) “the injunction imposed on parents by nature, of rearing, and carefully watching over the moral, religious, and physical
education of their progeny, and the impracticality of advantageously discharging that duty, unless children yield implicit
obedience to the dictates of parental concern, seeing that they are not of sufficient age and discretion to limit the measure of their
submission or obedience.”
○ (2) “the presumed consent of the offspring”
● 1809 - Jennette Prather demanded a (1) divorce and (2) custody of her children

58
 ○ Judge gave her divorce but hesitated with custody
○ Court said father was children’s “natural guardian, invested by God and the law of the country with reasonable power over them.
Unless his parental power has been monstrously and cruelly abused, this court would be very cautious in interfering with the
execution of it.”
○ Court gave Jennette custody of infant daughter but NOT older children
■ Judges said they were on uncertain legal ground with this
● Judicial disposition to emphasize child welfare began to change preferences in common law and “best interests of the child” became the
measure

Anna Freud → Painter v. Bannister: Postscript by a Psychoanalyst (1966-1970)

Elizabeth S. Scott & Robert E. Emery → Gender Politics and Child Custody: The Puzzling Persistence of the Best-Interests Standard (2014)

59