12/08/2011 16:00:00

← ← ← ← Family Law Rules and policies are both important -First look at the rule and then the policy behind it • Explores things relative to family • Family is crucial to society; it is the base unit of society Family • Tied by blood – family relations comes from and then legal recognition • A close knit unit of people • Economic support • Emotional support • Building block for morals, values, ideals, respect for others and respect for self, responsibility through consequences thru education • A system of interaction- interaction develops the building block • If you have a problem with family you have a diminishment of the passage down of morals and values that’s when govt intrudes because you lack it in a family • Security/shelter • Physical needs/ psychological needs • A place to affirm your potential affirmation • Development of a person through acquiring and achieving goals • Self identity • Affinity with ancestry commonality and cohesiveness

Tells us where we are and who we are in the world Love Do you step in and out of family by choice? ← Mary Ann Glendon • Women have begun entering the workforce, become less economically vulnerable, individuality increases, more women and men (also because of more lenient no fault divorce) can more easily leave a marriage • Marriage is now less based on status than contract today Govt can intrude in definitions and through its judicial branch: • Village of Belle Terre- the zoning ordinance said who could live here and who couldn’t based on “single family” definition. o Anytime there’s legislation, it’s a govt intrusion. “Only people related by blood can live here”-yes based on this case the govt can do that ← Moore v City of East Cleveland, Ohio • Grandson and grandma couldn’t live together, it was a criminal violation. Can govt intrude here and tell them they cant live together? No. This intrusion was not valid. Govt can’t intrude to this extent. • Fundamental human rights: can’t intrude on whom to marry and find a family. • Justice Powell- housing ordinance was unconstitutionally intrusive. When you have deeply routed traditions (we need substantive due process), govt can only interfere only if govt has a compelling interest and the means upholding is narrow and necessary. (Scope of interference is limited to only what is necessary). Here we have deeply routed traditions that grandparents live with grandchildren. • Dissent: we need “deeply routed traditions implicit in the concept of ordered liberty”- govt can’t intrude in marriage and bearing children- those are implicit and needed for ordered living. • The concept is about civil society vs. political society • White says the judges are interpreting BUT making law ← Who decides and how do you interpret constitutional rights? This has a bearing on how much govt intrusion we have.

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Braschi case- if you are in a family, members don’t have to leave the rented apt. If the breadwinner dies. Here, one gay person dies and the other one wants to stay as family. The gay guy ha established himself there for 14 years and the legislature’s goal is to prevent dislocation and preserving family units. The only reason fro excluding by the govt was money.--> here, the gay guy was protected. • Even college roommates can be described as a family unit. ← Section 3: Separation of Powers. Who decides these issues: legislation or judges • 10th Amendment –whatever hasn’t been enumerated to the federal govt, it is for the state to decide. ← Civil society definitions of marriage were here before govt definitions and policies were made. That is why we have a strict scrutiny test for govt interference- only if there is a compelling interest and govt has a narrow remedy. ← Human Rights- the right to marry and start a family. This is for physical survival of the nation and emotional survival- to raise children. • Executive Branch- administrative agencies. Legislative branch can make laws to narrow or expand agencies. Judicial branch can strike down and interpret legislative decisions. • Ankenbrandt- wife sues husband on behalf of her daughters seeking monetary damages for sexual and physical abuse. She was allowed to sue in federal court because the two parties had diversity jurisdiction. However, there is a domestic relations exception to diversity jurisdiction. There are perhaps different jobs and customs in each state so it should be in state court, however, a party may not want to have a state bias. If he were from Louisiana, then he wouldn’t want to go to Missouri. Looked at Barber v BarberConst. doesn’t explicitly exclude domestic relations cases. But in the Barber case excluded federal judiciary from hearing cases on divorce and alimony. So, here to understand, the court looked at the dissent. Can’t apply Younger case b/c there isn’t a lower state filing of the suit. Here, the domestic relations exception even if it is presumed in the Const. somewhere, because this is a tort case it’s not a divorce or alimony case.

o English common law. Parental Kidnapping prevention act.mandatory: Younger. o Also what happens to that child is a big issue (big national impact) and the commerce clause. Because ppl move from state to state. laws about alimony and custody that piggyback on state law. o Also.kid may go across state lines and interstate is affected.the Chancery court didn’t hear cases about divorce and alimony.if we’re dealing with an important social policy of the state. (Issuance of divorce. they had no authority…so American law adopted this. the federal govt can’t interpose. • Full Faith and Credit law: one action given in one state must be respected in the next state.abstention. federal cts cant hear the case (criminal case)  Then fed cases couldn’t hear pending civil cases  Burford abstention. let the state decide ← Problem 1-4: if we have diversity jurisdiction can the wife sue the husband for physical abuse and divorce in federal ct? Can sue for physical abuse but not the divorce b/c of the domestic exception. o Article 3. W still can’t bring the suit in federal. and custody) BUT they can hear federal question domestic relation cases gay marriage rights. . section 2. If the physical abuse and divorce are out of the common nucleus of the same operative fact. o We need federal acts on domestic issues. ← Section 4: federal involvement. in 1948.so the federal ct now has no authority to hear domestic relation cases in diversity jurisdiction.doesn’t mandate the exclusion of domestic relations but it doesn’t mean the cts necessarily must retain and exercise jurisdiction over these cases. they changed the statutory language. alimony.if there is a pending state action. Either brings both in state or brings just the physical abuse claim in federal and resolves the divorce claim in state. o Abstention. family matter stuff.

people really care about Privacy issues in the United States. the man provided only the bare minimum. • We want govt to focus on a limited interference.H and W. Also. and they were still married.they’ll flip power and this is a concern. Without privacy we lose our integrity. (***non interference in intact families. This was a private matter. they have a farm. govt could intervene and provide remedy if H and W were separated or if H sent her off—left her or left her constructively. H was frugal and did not want to give her the right to use credit to get household items and appliances. it will confer power onto Mrs. The trial ct determined that H should give the W money to purchase these things. ← McGuire v McGuire. W wants more money from her H to pay for things. no indoor plumbing. Only then can she get alimony. • Premarital agreements give judge an idea of how to allocate money after the dissolution of a marriage and it gives the H and W an idea of what they each agreed to. Dissent says the W should be able to use the H credit to purchase household goods. o Whitman. it is just equitable. but how this would impact other future litigations about unfair family finances. if the govt interferes. o Privacy and dignity in family decisions o No real govt invention between W and H and parent and child. we can’t make ppl stay together. McGuire. So we have to focus on the result if we have a break down of family. Just need support for good decision-making. They were not separated. Court said. single-family households? What should our public policy be? Do we help the children in single-family households OR do we deter single parent households? Well. lived together for 30 years.o Executive Orders: what should our public policy be given these new problems of the nation. once you have govt intervention it will open the floodgates to litigation. and the H provided her bare minimum.child poverty. We cant have govt interference of dictation of rules to keep family together. .****) we have to look at not just this case. H and W were pretty rich for 1958. Also.privacy. Still. so the govt can’t intrude.

could beat on his wife as long as there wasn’t any permanent damage. Modern – it relates to children (someone takes your kid in and provides for him.to educate and control. they can collect from the parent) and it is gender neutral. there was a marital concept doctrine.W can get a creditor to give her something if she claims she needed it. presently residing together as family. Also. Fl 741. This need is better proved when the W or creditor can prove this type of financing is what the W was used to. Also. what they are used to. you were ineligible for marriage. Tort immunity between parent and child are limited on the parents responsibility. the kind of touching that is not allowed in tort.thumb rule. is allowed in family. Domestic violence. • Fl doesn’t have the Necessaries Doctrine. Husband could chastise and rape his wife. Food and shelter are always necessities. Could beat your wife as long as the rod is no bigger than your thumb • • • • • • . or have never lived together but have a common child. or have resided in the past as a family (6 months). Spouses.not just related to the family unit. Stalking is included in domestic violence. Family Violence • A husband had a right of chastisement.is for family or household members. former spouses. but domestic violence is beyond that. FL is the only state that doesn’t allow gays to adopt but the gays are included in domestic violence. it went from a positive right to immunity for spousal violence.gives rise to the belief that you are suffering from an imminent threat Up to 1974.if you had sex b4 marriage. the creditor can go after her H if the necessities of the W can be proven. B.8 domestic violence. Should there be a distinction between rape and raping wife? The book says there are privacy concerns between the married couple and how do you know it was rape.if violence was involved.← Necessaries Doctrine.stems from the belief women didn’t have good judgment Also. Also. • What constitutes necessity depends on the person’s way of life.

• We have more victimization today than in the 1970s.no violence is necessary just have a reasonable belief of violence. Therefore. Restraining orders. You need the society to back it up 1st. this is how victims don’t leave. are usually the perpetrators of violence. Social views come first. it’s a private matter.b/c it makes ppl be controlling and lash out. people not doing so well in life. If it’s a temporary restraining order. – you get a temporary order and then you can get it expanded. BUT in reality the govt has a more hands off approach unless the victim calls for help. Do you have to be victimized first? You have to have objective reasonable belief that there is imminent danger.its up to an individual to evoke privacy or the govt can invade it. then govt policy can be enforced. just b/c you are arrested doesn’t mean the man will be prosecuted.they tend not to be very effective. if there is visible physical injury. then the domestic violence cycle can continue and you have the same problem again. law steps in when social control doesn’t exist.• • • Study that determines how you prevent domestic violence? Arrest was the best deterent of domestic violence. • When police are called. there is a problem with the offender coming back and getting back at the victim for getting them arrested. still people will have to comply. men don’t like reporting they are the victim.it discouraged victims from calling police b/c they want to protect the offender. also. • Also. There is more of an idea that ppl don’t feel the structure of control. (must have consequences of quitting). ppl didn’t do it or ppl didn’t see it back in the day. Also. • FL has a battered intervention program but its not very effective. Govt policy goes so far. ← Parental Chastisement – . The restraining order can be ex parte. ← Permanent restraining orders work. • Privacy in domestic violence. then there is an arrest. Sometimes the woman doesn’t want to get cts involved b/c she wants to stay in the relationship or she doesn’t want the child to be taken away by child services. Problems. Even though you could’ve gotten away with it.

In the Matter of Peter G. & others- the trial ct found the father had used excessive corporal punishment against Peter and the mother failed to protect Peter. It is the prosecutor’s burden to prove injury and excessive corporal punishment. Rule- parent can use physical force necessary to discipline but cant use excessive corporal punishment. The kids statements, the supreme ct said, were very general and there was no physical evidence of excessive punishment. The dissent – trial ct finds credibility, and the kids’ stories corroborated each other. ← Lovan case- kid was jumping on the bed and the mother hit the kid 3 times with a child’s belt. Father reported it because this is a stain on mother’s record and may have an impact in custodial decisions (in FL it’s a big factor). Peter G case was worse- but mother may have been charged w/ neglect. Still the boy was afraid and had been hit. Is worse than Lovan case where a mother just intended to discipline a kid. • Test in Canada- if you use an object, below 2 and teenage yrs there’s no benefit to corporal punishment, no blow to the head- bright line rules. 2000, Germany outlawed all corporal punishment. • If a mother shakes a daughter at a grocery store and slaps her, would you intervene? Would you intervene if father were throwing baby up in the air? (Shaken baby syndrome) • People get offended if you intervene b/c of the notion of privacy, but when the abuse is so clear, there needs to be govt intervention. ← Statutes- by default, are presumed constitutional as long as you have a legit state interest and the means are rationally related to the end. • We don’t require the best means possible, just has to make sense. • However, there are some things the govt can’t do. Statutes restrict private actions. • The more important a personal individual interest that’s impacted, the less authority the state has because the more proof the govt needs to have to beat down your right. o Usually legit govt interest o w/ a fundamental private interest, then in order to pass constitutional strict scrutiny, the state must have a compelling state interest and the means must narrowly go to advancing that compelling state interest. ← Development of substantive due process….

Griswold v Connecticut- 1965 people had very little understanding of a reproductive cycle. The statute criminalizes it for getting contraceptives or aiding in giving someone contraceptives. Director of Planned Parenthood, Griswold and Buxton, the doctor, sue Connecticut because this statute invades family planning and privacy. The fallback is its up to states. 10th Amendwhatever powers are not federal, go to the states or local govts. This means states could have laws on contraceptives. There was nothing directly in the constitution, normally we let the states decide on the issue. Planned Parenthood was saying we don’t want to let the states decide. The court looked at analogies, there wasn’t a right to education in the 1st Amendment but everyone had the right to educate your child as you choose through the 1st Amend and 14th Amend, so all rights are not specifically enumerated. Still, these peripheral rights are protected. ← Dissent- you have a substitution of law based on the majority’s opinion of the court. It’s a separation of powers argument. ← This was a case of family rather than individual privacy. Its an easier argument if it’s a family- hands off. Contraceptives is a decision you make between a married couple and the physician. • Following cases: Eisenstadt- freedom to use contraceptives is extended to singles. Birth control devices were to prevent disease, so it didn’t matter why they had only allowed married persons to use contraceptives. o Roe v Wade stems from this allowing abortion. o Casey- Also, ideally the man and woman should agree about the abortion, but in the event the two don’t agree, it makes sense to make it ultimately a woman’s decision. Limitations still w/in a marriage and the female had to notify the husband and the father. o Autonomous decision rights. – first it was hands off what happens in the marital relationship, then there’s a shift to medicalizing certain procreation and medical decisions.

o Bowers- an officer saw 2 men engaging in consensual sodomy which was against the law for same sex and other sex individuals. Due process argument tied to the 14th amendment. Because Bowers discriminated against everyone, then there is no Equal Protection. BUT there is no fundamental right warranting gay sex, so it only requires that that there is a rational basis for the rule. In Bowers- homosexuality is not a fundamental rt (it’s a less important rt and so if there is a rational basis for the govt’l law it should stand). Bowers denied gays their right of autonomy. o Romer- invalidated a Colorado constitutional amendment that deprived homosexuals from equal protection for no legit govt purpose. The rt is an integral part of human freedom. Bowers is overruled.  We can discriminate legally. But we can’t discriminate constitutionally when we have a state actor and the class discriminated doesn’t meet the scrutiny requirements. ← Lawrence v Texas- Is a Texas statute outlawing same sex sexual conduct valid? The statute reaches the most private human conduct in the most private place-home. Historically we’ve given adults the liberty to decide how to conduct their private lives. Here, the state interferes and chooses to discriminate against one type of people—discrimination, then they debated whether they should apply rational basis or compelling govt interest test. This ct used the European court and used state cases and how they were rejecting Bowers and allowing gays to engage in sexual conduct. This is not usually the way the supreme ct handles making a decision. Its not just sodomy being regulated, but an intimacy decision. Rule- fundamental rights cant be taken away w/out a compelling govt interest; this is a fundamental right to intimacy-gay sodomy. Dissent- there is no basis in constitutional law for the majority’s decision. Conclusion- the couple are entitled to respect for their private way of life. The state law serves no legit state interest & due process clause gives them the full right to engage in the conduct. • The majority opinion here had a rough time accepting an international decision to look at in deliberation. A case that was considered authoritative.

identification and support of children.Dudgeon. married persons pay tax. disbursement of benefits. so it wasn’t enforced. better for the economy. but the moral climate can be considered in enforcing the law.easier. But the human rights code warranted that govt can interfere with respect to morals in morals legislation. You have a right to impose moral legislation.continuation of society. here no one enforced this old law so go with what the morals of today’s society…(unlike Lawrence where the law was looking to be enforced).govt rts to morals legislation? One issue dealt w/ acceptance of gay private acts. happiness of the individual. • . There was acceptance in this court of gay interaction. Chapter 3: the Regulation of Marriage • There’s suppose to be government regulation • Substantive regulations • Procedural regulations • State interest in marriage. There was a law against gay interaction.

his marriage license was denied.the statute can’t say just b/c you don’t have custody and your child may still need the support of the govt you can’t marry. looking for welfare of the child-but these means to prevent marriage unnecessarily impinged the right to marry. Then they were arrested in VA. • Its up to a state to determine if something is a marriage. • Goodridge. The court applied part strict scrutiny/ part intermediate scrutiny.you can’t take away someone’s right to procreate based on the fact that they’ve broken the law in some respect. Is there an important state interest closely tailored to effectuate those interests? There are interests to fulfill – prior support obligations should be fulfilled. Marriage is a fundamental right. • Skinner v Oklahoma. Marshall claims this is an equal protection argument. ***Justice Marshall says a reasonable regulation that doesn’t significantly interfere w/ decisions to enter into a marriage are subjected to strict scrutiny. . So b/c of discriminating on a fundamental right. poor ppl can’t. and now that #2 is pregnant. the law serves to have poor men have more illegitamite kids. Its discrimination based on status poor dads. you must find a compelling govt interest to support the law.we have greater protection for privacy than the constitution. Goes against the interest of having a family. So if the father hadn’t been up to date with his child support. marriage.w/ interracial couple wanting to get married.Zablocki. the law tells him he can’t get married. Zablocki had a child with woman #1. Because of the racial qualification-strict scrutiny under the equal protection. they left VA and got married in DC and then went back.There was a Wisconsin statute prohibiting certain residents to marry if they didn’t have a court order. Was there a fundamental right expressed here? Yes.rich ppl can marry. The law has nothing to do w/ the state’s interest. **** • Lovin v Virginia. The interest could have been accomplished by other means. VA didn’t want a mixed breed on people. Reasonable regulations are fine that don’t limit marriage.

Govt can’t interfere unless its under very restrictive ways.you are required to pay your spouse’s bills. ← Void. because then we’d just have no laws. Now we care whether it’s a void or voidable marriage. So. ← Voidable. creditor loses.if you are a citizen of one state. the creditor gets his money. but police officers need to be on call for good reason. the rule serves a compelling govt interest and is narrowly tailored. one of the officers would lose their jobs because they are not living within their district.US case for freedom of religion w/ polygomist. Although generally. and the creditor comes after the spouse. if they move in. Yes. • Annulment.the spouses can opt to void the marriage while they are both alive. you can’t go forum shopping. If its voidable.a fundamental right. anyone can attack the marriage. Void if below the minimum age. Some states have retracted it.← Problem 3-2 two police officers get married and they move in together but now one of them is not in the district. Reynolds. Wife can go to a creditor and buy something she “needs” based on lifestyle and then creditor can go after the husband. marriage is a fundamental right. b/c only the spouses can attack the marriage while they are alive. If its void. a marriage is governed by the law of the place of celebration. get married somewhere and then go back to your state. • Necessaries Doctrine. • Creditor of John and Marry.so you have proof of the family relation or not. Based on creditor’s claim against the wife/ husband. John dies. They said freedom of religion does not allow one to overcome the laws of the state.never existed. Conflicts of Law. . so although it’s a fundamental right.

Preserving state financial resources. ← Lawrence v Texas. Then strict scrutiny doesn’t apply. Rule. the court interpreted same sex… and Due process-liberty. ← Bowers. He knew what he was doing. That the means in rationally related.(easy to pass) 1. . State. Is the word cohabit constitutionally vague? The court said cohabit is not vague. –prevents marriage fraud. Fertility has nothing to do w/ granting a marriage (dissent says male/female is the structure surrounding all procreation) 2. this is a state statute in UTAH not allowing cohabitation or marriage if you’re already married. Here. property. happiness-fundamental rights are those having to do with liberty. misusing govt benefits. Green had stated all of these women were his wives. Here.State v Green-Green is charged w/ bigamy. and obligations conferred by a civil marriage of two individuals.an adverse impact on religion itself is not impermissible b/c govt may have a legit concern of social harm to make the law. Constitution: (equal protection-equality under the law should not be abridged because of sex (although they probably meant gender. the state can decide on this matter. BUT it needs to be worded neutrally AND operationally. also polygamy leads to other crimes. he also legally divorced the prior and married the new wife. benefits. There should be no disparate impact. it should be neutral. but he claims this violates his right to exercise his religion freely. property.says legit state interest/ purposes for denying same sex marriage is 1. • Looked at he statute based on neutrality and vagueness o Different Sexes ← Goodridge v Dept of Public Health.no criminalizing same sex marriage. Protect procreation 2. Who has the job of identifying the state interest? the state/ the legislature. just b/c there’s no constitutional protection of gay rights. The majority: 1. Its up to the civil norm of the state and its best to look for those in procedural history. you need a legit state interest AND 2. Mass. • A state can make particular rules about marriage making bigamy legal. Two parents of different sex are better for child rearing 3.the state governs morals legislation. so his vagueness challenge fails.same sex couples have a right to marry and benefit from the protections. or the right to happiness) rational basis test. Is this a facially neutral law? Yes.

ect. The ct wiped the state interest out. After Sylvia grows up. • What about different sex partners. nephew. you don’t have benefits. • DOMA –marriage between a man and woman and no state is required to give effect to a same sex marriage from another state and all types of alternatives. Just don’t have the label of marriage. just recognized relationships.get similar benefits as married couples. Not reflecting the norms of civil society. Sylvia has a 12 year old daughter who Raymond adopts. But her the ct didn’t use this test. Ray has a son Martin who lived away as an adult.Vermont has accepted this. The state argues family harmony state interest. ← Israel v Allen. Used rational basis review not addressing what is fundamental about marriage. • There are also civil union laws. The ct disagrees and says it is illogical to prohibit marriage between adoptive siblings. What would they think of this law? ← Suppose you are a blood relative living w/ grandma. but don’t get employment rights as a spouse. • Transsexuals can be married to someone of originally the same sex after they obtain surgery. ← Blood (unrelated by blood). such as people living as family. . If it’s a fundamental right. then the ct should apply the strict scrutiny test. procreation isn’t necessary to allow a marriage. 2nd tension. but injecting your views as a ct into society. Just talking about their sympathies about a group that doesn’t have anything to do w/ constitutional enumerated rights.← Goodridge. • Same sex can get will rights. They were denied a license. This is a legit state interest.the tension between the majority and the minority opinion. But because you are not married. who decides? The legislature is suppose to look at social policy and social norms and decide these laws. ← 24 states prohibit marriage of 1st cousins. We need man and woman for procreation. she wants to marry Martin. This claims the social norms of the state should be supreme in that state regarding marriage. Civil union argumentreciprocal benefits for others.Raymond and Sylvia get married in 1972. It didn’t have anything to do w/ marriage.

If you have no valid choice.need an adult as well in making this decision. Mother didn’t give consent for minor girl to marry who had a kid with this guy. a source of unity and stability. • Parens patraie. the whole family is based on family protection. There is arguably no harmony being disrupted because the two didn’t live in the same state/ place. children can’t be held liable in tort liability at times.father of the people. The mother was getting govt aid for the girl. State can act as parents.Do we prevent this marriage between adoptive siblings? Erodes family harmony . Children are vulnerable.rule of 7s. the parents have a right to do this. • A 17 year old in a marriage can attack the marriage afterwards as voidable. its not consent. Procedures Relating to the entry of marriage ← A. ← Section 4. Consent to Marriage • Capacity to K: • . Presumption. ← You have to have capacity and consent to enter into a marriage.children have the inability to enter into a K.as a parent you know and operate in the best interest of the child. Presumptions. The ct said constitutionally. What makes this a different case is the two lived in different states. They have the right to promote the welfare of children.statutory rape. This ct looks at this individual case and not how it could be applied in the future. States differ. it is a temporary decision that is just delayed until the girl is an adult. but rational basis. State has an interest to protect minor and prevent unstable marriage. State doesn’t use strict scrutiny. • 16 or under. The court said we will uphold the mother’s request not to have this marriage. ← Moe v Dinkins. family as a building block. Also. Have to do it in time.most is left to the parents to help make the decisions for them. we have adults involved in the decision making process. this doesn’t prevent a marriage. cant make a critical decision like this as a minor usually-except abortion. otherwise it is like you ratified the marriage. Of Sufficient Age. **by asking for parental consent. it’s duress.

intra familial reliance.← Larson v Larson.there was nothing abnormal w. he has the harder case. Therefore. • Failure to comply w/ contract of marriage divorce ← 3-6 Alzheimer’s disease patient gets married. State interest. its hard to detect. Here the kids are attacking the marriage so that the new wife doesn’t get to the patient’s checking acct. But the doctor said a normal person may likely never have picked up on her insanity. He has to show evidence. the woman at the time they married. then the woman was committed to a mental hospital. lack of capacity – makes the marriage void and anyone can attack it. here b/c the husband/ plaintiff has a burden of proof. ← ← Procedural Regulations: Why do we have procedural regulations? • Fairness and uniformity • For efficiency • Structure • Proof and notice What are the three procedural requirements? • Consent o Capacity  This is relevant at the time of the marriage  The challenger has the burden of proof (person trying to dissolve the marriage) o Intent • Formality o Solemnization o Licensing Smith v.clear and convincing evidence standard that she wasn’t able to consent to the marriage at the time if the marriage. INS: Where they married before the proceedings or were they married during the proceedings? Sham: What are sham marriages? ← ← ← ← ← . • Intent to K • are you consenting to the marriage or the marriage just so you can get the benefits. its all based on burden of proof and the evidence of his insanity. strong favorance in keeping the marital unit together.

• • • ← Marriages that exist in name only Getting married for a limited purpose such as for receiving benefits ← Marriage for a limited purpose and with a limited intent What is the general rule with respect to Sham marriages? • They are void • Ex: legitimizing a child • Ex: gaining citizenship.could be divorce o Financial stability? o  . Smith v. INS • EXCEPTION: o If you can prove by clear and convincing evidence that the marriage was not a sham Marriage Fraud Act: • Rational basis analysis • Equal protection? o However. under the 14th Amendment non-citizens are not people and therefore are not entitled to the 14th Amendment protection including equal protection • The purpose of the act is not meant to interfere with marriage but rather to preserve immigration law by not permitting those that are not in families to skip to the top of priorities Marriage itself was not prevented because they are just deported or expulsed for two years The purpose of the statute was to demonstrate intention on the aliens part • • • ← ← ← ← What is the difference between legitimizing a child sham and gaining citizenship sham? Fraud: • Think of it vis-a-vis somebody else in the marriage • You are inducing somebody to marry you for a certain reason • There is a higher element of deceit o Your intent to marry may be faulty o • What are the different types of deceit? o Political affiliation? No.

Carabetta: In Re Estate of Keimig: Common Law Marriage: o Intent to marry on the part of both parties. o Capacity to marry.← What is the fraud rule? • Going to the essentials of marriage • It is the non-disclosure that is important • • An intent to going to the essentials of marriage is the kind of fraud that you have no intent to marry • ← ← ← ← ← ← Formalities: Solemnization: • The ceremony Licensing: • What you get at the court house Carabetta v. o Holding out to the public as married (cohabitation)  Why is this important?  Notice ← . Carabetta: There is a presumption favoring marriages • The state will presume the couple is married • The burden of proof lies on the person that wants to attack the marriage If a legislature clearly and unambiguously states that you must have a license • Than it is mandated • The federal government does not have to have that same level of scrutiny • They are not subject to the same scrutiny levels at all times • • State Procedural Regulations: • Capacity • Intent • Formalities: o Solemnization o Licensing • • • Carabetta v.

it is an equitable remedy   This means that the putative spouse is not statutorily entitled to remedies Therefore.  Why is cohabitation important?  Because it provides proof and notice  • Makdisi's Elements for Common Law marriage: o Cohabitation in a jurisdiction that accepts common law marriage o Current consent we're married (capacity and intent)  Present agreement.it cannot be in the future  "We are married now".not that we are married or that we will be married o Holding out o Full faith and credit applies unless contrary to strong state interest Hypo: o You married after you thought you were divorced but in fact that divorce was not effective o If we were to apply the state regulation of only one marriage at a time  There would be no marriage  Putative Spouse: A person who cohabits with another to whom he is not legally married in the good faith belief that he was married Makdisi's Elements: o At least 1 spouse (or both) reasonably believed that they were married o Two solemnized marriages o o Putative spouse is not a legal remedy. it is not going to be the same in every case  This particular judge split it down the middle but it will not be the same in every case  • • • • • • • • Putative spouse doctrine generally does not invoke alimony .

Walton: o What does property have to do with it?  Vested interest in what?  Her marital status  Your relationship with the community of being married and status the idea of it being not changeable  o Used to be some sort of serious fault grounds but here you had to show irreconcilable differences  Adultery  o They never really address the issue of whether she has a vested interest • • • • • • • .e. Hill: o Marriage is more than a mere contract o Prenuptial and Antenuptial agreement are used interchangeably In contemplation of divorce which is inimical to the permanence marriage therefore against public policy Chapter 5: What does the term status imply? o Is it temporary or permanent?  Well according to black's law dictionary the term "status" is in reference to something more permanent   The use of the word status sets up a position in terms of a community  What duties are owed in a marriage? o i. Support o Chapter 5 is about altering the norm o Altering the legal position of marriage based on private contract o Walton v.o Since generally it is a continuing obligation of your marriage o • • Chapter 5: Marital Agreements Maynard v.

o Usually legislation appears when there is a need for it to appear… so what do you think changed?  Civil Rights Act  Women's Movement  Woodstock  Flower Power  Protest  o One of its policy arguments was that it would be burdensome on the court to have two separate laws o o Walton said ok legislation could change the governments by which the status is terminated but not the entry o o What kinds of things are effectively changed?    • How much control is there between the state and the individual How much individual's have control over what goes into the contract Validity of Premarital Agreements: o Procedural Fairness  Does the statute of frauds apply?  Yes  So it needs to be signed and in writing  Sometimes you do not have to have it signed  Marriage is considered the consideration  So even though there is no consideration requirement the premarital agreement becomes effective upon the marriage   For purposes of this class it needs to be in writing and signed  o DeLorean v. DeLorean:     There is a range among different jurisdictions The courts says that 3 hours prior to the wedding will not invalidate the agreement In California the requirement is 7 days prior to marriage .

duty to investigate (arms   length relationship) Duty to disclose requires a listing This duty deals with how you consider the fiancés • Whether the fiduciary duty begins before the marriage or once the marriage begins • o There was a choice of law provision stating that California law governed and therefore the disclosure while insufficient to satisfy the NJ law was sufficient to satisfy California law o o When does the enforcement take place?   At the divorce and the agreement takes place prior to the marriage o Does the legislature have an interest in keeping families together?  Yes they do  o Generally most of the time the courts do not have issues with waiver of property rights  You just don't want to dupe the other party  . o Elements:  Voluntary:  Independent counsel  It was someone her husband recommended  Time  Deals with duress factor   This is how they are going to dictate voluntariness  Why would they be so hands off about this? • It could be because of judicial administration •  Disclosure:  Financial disclosure  What does it entail to satisfy that disclosure?  Duty to disclose (fiduciary duty) v.

the marriage contract. Gross:  Unconscionability in terms of the alimony?  Can the person waive the right of support that was imposed by law when they separate?  How do you know what constitutes unconscionability? • Not being left destitute (DeLorean) • If so because of "changed circumstances" (Gross) • For purposes of the alimony they are looking at the unconscionability at the time of the divorce •  The separation truly collapses Maintenance and Sustenance o These are alimony support o The notion behind this is that you have a status that is formed once you are married and you have a continuing obligation of support once there is a separation ← Weitzman. But the right to divorce is based on a statutory rule.without any restrictions at all is too restrictive. no exit for harsh punishment/cruelty in the marriage. With no divorce at all. divorce only “no fault” provision of separation for 6 months • Which are enforceable? Divorce is not a fundamental right. • A number of states has covenant marriages.any provisions regarding child custody. its like you are imprisoned. divorce w/ fault. • .no divorce. other things is not enforceable ← Divorce waiver.o Substantive Fairness:  Gross v.they allow people to go to the no fault. • Divorce only with fault is enforceable.

husband’s condition would deteriorate. There could be a possible case for malpractice where a spouse could recover. Support duties are owed by the other spouse or spouse can chose to pay for someone to take care of the ill spouse.the wife wanted the deceased husband’s promise held for taking care of him (but her complaint was dismissed). ← Curry v Curry.reconciliation agreement. There was a prenup in April 1980 and husband died in 1989. so a K for her to get paid for these services (postnupduring marriage agreement) is void and against public policy. parties were represented by counsel. but if there is a change in unforeseen circumstances. Wife says the rule is outdated. there was no unconscionability.must be preceded by ← Separation or divorce. didn’t misrepresent. Here though. The court said there was no consideration. Was she under duress to sign? • Cts have a hard time finding an agreement unconscionable if each party had independent counsel. the wife chose to support the husband in this way. do not need to know case names). there could be unconscionability.← Borelli case. Wife agreed to the reconciliation agreement bc she thought husband would die soon. Ct says parties are bound by the terms of the reconciliation agreement. Consideration for reconciliation agreement was the reconciliation of the 2 itself. it was foreseeable that the value of assets would go up. . So what is your duty of marital care/ support? Did the wife have the duty to take care of him when he was ill as a nurse? Ct said there was no consideration. Same terms as prenup agreement. (on test. This ct looks at unconscionability as though: would the wife be left destitute? And she wouldn’t be. The woman aid the agreement was unconscionable. Sick bed agreements deprives someone of their vonluntariness in signing. Problemin exchange for property you need a writing. husband fully disclosed. ct disagrees and says wife can only recover for loss of consortium. The husband orally said he’d give her additional assets for taking care of him when he was ill. So the wife didn’t want a divorce although she cheated so in consideration for getting back together was for her to forego alimony and property if they get divorced.may even get fed aid to pay these caregivers. Ct said unconscionable at the time of formation. Marital duty of support includes caring for an ill spouse. No change in circumstances that were unforeseeable-wife graduated from nursing school had a job.

Interest of one client is directly adverse to the other. The guarding of individual rights would be impeded. they cannot prohibit access to the cts. the attorney was a scrivener.the two waived their right to independent counsel and wanted the lawyer to write up the terms of an amicable divorce. ← Avoiding Conflicts of Interest: ← In Re Marriage of Egedi. He said he was just writing the settlement and gets informed consent.may do it bc he is a friend. he claimed. Wife appeals from the judgment not enforcing the settlement. the lawyer rendered legal advise b/c he made standard provisions to the agreement. The court said there was a conflict of interest. This is a potential conflict of interest. The husband helped draft the K and then he is now criticizing it and didn’t pay the alimony. The trial ct did not find it fraudulent.this info is confidential and its breach of confidentiality to use this info against them. Representing two ppl is not to the lawyer’s benefit.Seperation agreement – you decide the terms not the ct. ← Problem 11-1: the lawyer doing dual representation. Unequittable settlement agreements are different in that they can be set aside. done when you know you’re getting a divorce. even if its inadvertently. The lawyer also had previously represented both the wife and husband in unrelated matters. doesn’t want to lose his client. ← 3/10 • divorce is not a fundamental right • could a state enact a law prohibiting divorce altogether? That is probably never going to happen • because states do allow divorce.that is a fundamental right • there have been several cts that determine that divorce is a fundamental right ← Chapter 11: • Its not always easy to see that there’s a conflict of interest. Cant effectively render legal advice. ← Fees- • .

but bc the bonus was agreed to b4 the settlement was executed. o Need informed consent otherwise from the client to divulge the info . to comply w/ court order. A lawyer may reveal info to prevent death/harm.lawyer cant reveal info w/out informed consent. labor. value of property. prevent a crime. If you have W executed. There was an investigation but was inconclusive about the sexual abuse by the husband of the kids. prevent injury to finances. It was for 2 million and 3 payments. • No contingency fees for: o Divorce o Custody o Alimony o Child support o Cts have the discretion to award attn fees to the party w/out money ← Reasonable Fees← -time/labor ← -inability to do other work ← -customary fee ← -amount involved/ results achieved ← -experience and reputation ← -in divorce look at amount involved. that’s ok. • Confidentiality. skill ← Florida Bar v Susan k Glant. Anyone can give a voluntary bonus. time. when arguing against the client. The lawyer won her a bunch of money from her ex husband and the lawyer was so good that the lawyer and plaintiff got into a “performance fee agreement”. The lawyer has a duty to the client to abide by her wishes.a mother wanted custody of 2 of the 4 kids. The issue was the 2 million dollar bonus that the two contracted here was agreed to before the husband executed the settlement agreement.custody of only the girls and has a duty not to perpetrate a fraud. This is against public policyencouraging divorce. complications. then PFA. H executed. it was a bonus …a contingency fee based on the results obtained in a divorce.← VW v JB-plaintiff is suing the def lawyer.

this is the stronger principle. If one essay it ll have multiple parts. The answer to this question depends on this fact.avoid trial.the attn should get a guardian ad litem to represent the kids. Always give the rule first.not numbers.cant lie or fail to disclose material info • Candor. Defendant will counterargue bc this this and this. o Even if the client initiates. . The particular rule has to apply to the facts.aims to have an efficient. fair. 2/3 essays.lawyer should recommend the person get an attorney. talk to the attorney. Have to resolve it in some way. Or which principle the jurisdiction values more highly. hostilities are to a minimum • Divorce can take a year or two so there’s alternative dispute resolution • Collaborative law. No case names or statutes needed. o If pro se. comprehensive settlement agreement – if it goes into litigation the attns are dropped and the parties get new council.• • • • If there is seemingly a problem and the children may need representation.find out if they were married first. Jurisdictional statutes you need to know. attorney looks good. • Fair bargaining.promotes settlement. not directly to the opposing person. Plaintiff will urge this bc this this and this.cant have sex w the client unless it started before representation.act w honesty and avoid frivolous lawsuits • Cooperative/ problem solving mode: best w family law. Fraud. no Duties to opposing counselo if the def has an attorney.cant assist w a fraud or criminal conduct Sex. • Dissolution of marriage. ← 1/3 objective answers: multiple choice and t/f w/ explanation. Credit for legit analysis and some conclusion.

The attn also said the woman had no income when she did. The attn has to take the child in consideration. A CPA testified that the attorneys had not investigated and evaluated the property of the husband correctly.the settlement alone does not immunize the attn. Family law attn said they fell below the standard of duty. Still no negligence claim bc he didn’t act maliciously. hurt her credibility. Plaintiff is suing the attorney who she claimed were not properly prepared for her case. but he was not the attn of the child.there is intentional harming the child.made it peaceful and livable. jury’s verdict of 1. The wife settled for 159k and 12K a year. • . ← 11-7 children got dupped out of inheritance that went all to the wife bc the father died and the lawyer filed untimely.5 million as ok. She needs to prove negligence and that had it not been for the negligence of the attorney. The outcome hurt the child and the attn was sued.if the child is in privity or there is an acting maliciously. People wanted to have a perceived stability.it’s a settlement for a marital dissolution action. Also in the past. The attn is hired for due diligence. the attorneys should pay for their negligence. ← Liability to 3rd parties ← Scholler. so yes.the attorney Willoby was representing Alice in divorce action. not 14K. more easily. Easier divorce laws makes ppl jump into marriage quicker. You have to have good faith. ← ← Chapter 12: Divorce and Divorce Substitutes • Divorce was frowned upon so ppl seemed to accommodate their spouses.← Grayson. ← 3rd party can have standing to sue the attn. less litigation. Maybe children should have their own attn. Still attorneys have a duty to discover and analyze the fruits of the investigation. Rule. The attns actions were aggregious and the attn had a duty to investigate the worth of the husband. she would’ve recovered more. Fair market of husband was 487K and he was inheriting ½ a business. They forced ppl to be together bc of financial interdependence. attn must have demonstrated good faith. Today there isn’t a financial interdependence. she was at an economic loss. not the son. The attorney argued there is a public policy favoring settlement and the woman was barred from recovering bc of the settlement.

the ct disagreed and no divorce was granted. Harder to exit based on your reasonable reliance that we are going into this foregoing certain opportunities. kissing. • Adultery.it eliminates no fault divorces if you sign on the agreement. The wife left after the husband told her to get out with her one son.how much proof do you need? Someone coming out of someone else’s house. you want to have a defense. She left to go to her mom’s house with the kids. ← Caps v caps. Different valuation.substitutes -6 months of separation or one person says their attitude is affected so that they will not reconcile Family Law. The husband alleged this was cruel and unusual punishment. he for desertion. He had struck her (she alleged this was cruelty but ct said no. Some states have covenant marriages. It didn’t matter if the husband told her to leave or if she left bc of him slapping her (this wasn’t her deserting him.• • • • • Family unit is the building block.the husband and the wife were filing for divorce. ect? • If you have a fault based divorce. if the law changes to no fault. she didn’t leave voluntarilyno divorce). The husband’s claim for desertion was not granted. • How subjective should the test for cruelty be? It should vary based on past relationship conduct.at least a year separation. she for cruelty.this is just one case of cruelty and is insufficient) the wife had told him he wasn’t ½ the man her last husband was. They had not lived together for 40 years. Uniform Marriage and Divorce Act.goes back to the 1960s where you can only get divorced on grounds. Still. ← Lynch. they might let the husband or wife get a no fault regardless of the covenant marriage.the wife called him a faker and asked him to give her money for support. They didn’t live together since.no divorce.there are marriage consequences and financial consequences . Her divorce for cruelty was not granted. Single act.

ect.one is not injured if they consent to the conduct complained of.there’s nor reasonable prospect of reconciliation.wife sent flowers and a note. • If one person says there’s no irreconcilable differences. (only) • You can have ex parte divorce bc one person only showed up. 1.perhaps for desertion? Rationale. Uniform Marriage and Divorce Act-(minority states) • Allow for one person that their mind has changed and don’t allow for the passage of time to test it. recrimination.consent to the misconduct 2. we also have perceptive judges. Also the wife signed a note she consented to the husband moving out and claimed she wouldn’t use this against him in ct. the ct shall grant a decree for divorce. . Most states have done away with these 3 defenses. Condonation-after the misconduct.husband concedes he was having an affair and living w/ another woman but the husband’s defense was “connivance”. forgiveness a. Family Law Section. Connivance.she might get more money from him if its no fault. She wanted to be free from the marriage. Henry shouldn’t get a no fault bc of financial consequences. • No fault was granted although oddly the husband hadn’t raised it.separation for a year. ← 3.when one spouse does misconduct bc the other spouse did misconduct. She wrote in a letter that she hoped he fall in love with the other woman. and a longer separationlike 3 years. • If Wendy is an adulterer and Henry wants to divorce her and Wendy wants a no fault divorce.← Hollis v Hollis. the ct shall consider this. Isn’t this subjective? Often the judge looks at it from his own perspective. • 305© irretrievable breakdown.the woman agreed to. • All states have no fault separation provisions NY requires consentual divorce for no fault. consented to his misconduct prior to it being done. • 302 (a) if the ct finds one person claims irreconcilable differences.husband and other woman. When they had sexual relationship.

just a passage of time –separation. • Most require that the separation is in 2 separate houses. Marriages that are irretrievably broken. summary proceedings: less state interest when there are no children. • Some cts ask for separation and intent to dissolve at the beginning of the separation. particularly when the two live apart. But under our modern society.052. ← Wife S v Husband S.he cant make a sound determination in his state? But irreconciliability can be shown even if only one party believes it.when there are no minor children. little debt and there’s a settlement agreement. And the only way she’d take him back is if he got help. The statute here says the separation must be voluntary and mutual.Claire kicks William out bc he’s an alcoholic. • Pg 597. – see all of it pg 597.before covenant marriage. • The state does have a long history of keeping marriage in tact. The wive’s point is how can the alcoholic make a determination? Where one thought reconciliation was possible but the other didn’t try it.← Hagerty. need to go through counseling. Wife left. Summary divorce. the marriage is dissolved by death. She didn’t voluntarily leave and there was no mutual consent for the separation. • Spouse dies b4 divorce action is complete.dissolution was granted. The ct granted them divorce and said the marriage was irretrievably broken. Conclusionalcoholism cannot defeat findings of serious marital discord. Issue. no spousal support asked for. ← Problem 12-2. 61. • Pure fault based divorce • Fault based divorce plus divorce based on mutual consent • Fault based divorce plus divorce based on a period of separation .the husband was caught having an affair with 3 different women.should the fact that he’s an alcoholic defeat the findings of discord. marriage has been for less than 5 years. • The book.FL law. 25K in controversy. we don’t know where our boundaries end. Most jurisdictions don’t require mutual separation. ← Summary divorce procedures: file without too much attn involvement.

Divorce based solely on mutual consent ← Alternatives to Divorce: ← 1. it goes to the essentials. ← 2. – clean hands doctrine. So if you omitted telling them you’re infertile. Separate Maintenance Agreement-not divorced • You’re separated but you are still supporting the other • There’s hope of reconciliation. ← 3.treat it like a dissolution • Can’t remarry. No. • . he is estopped.divorce • Must live separately • May settle property rights • The tax consequences.the marriage never existed • there’s recognition that the marriage is void and you can check that you’ve never been married. Annulment.so not really divorced but civily have separate households • Can still be claimed as an insurance beneficiary. you can’t use annulment here. if you have fraud that went to the essentialscan get it annulled. In most states. – someone mascaraded like the opposite sex. “Divorce from bed and board” not from legal attachment (mens et thoro). • There may be some defenses to an annulment.he participated in wrongdoing. • What if the woman was 17 and they both knew this but he had docs that showed she was 18. • Whether something is void or voidable varies in different jurisdictions.if you participated in the misrepresentation.the tie is not severed.you file joint returns and the property rights continue to accrue • There can be cohabitation ← Fl has abolished both of these. ← NY time period for separation. It may be different if she defrauded him without his knowledge. its encouraged to reconcile • The tax consequences.is one of the longest.

14th Amend due process right this case states there’s a procedural due process right to go to court. ← H-W mens et thorou.the right to have your day in court. the poor. • Number 5.this is allowed. They move to CA and W files for divorce. as applied to the indigious. they require a longer term of separation for a divorce. pg 604. FL – no adoption to gay couples and no gay marriage. ← 12-3 W and H get married in Louisiana and have a covenant marriage. they do not need to pay filing fees.strong public policy not to recognize it and will not grant a divorce. • So while their annulment laws are more lax. • Still there is no definitive answer to “do you have a due process rt to divorce. This is not a real marriage until H dies and now W and H2 are married. then W marries H2. W can argue marriage travels. But if K states this should be adjudicated using Louisiana law.you do have procedural due process rt to go into ct and get a divorce so for the poor.they probably will at least enforce their separation agreement.the only means. what occurs? H can attack the validity of the clause but he’s stuck with the waiver of the no fault. to deny access to the ct bc they are poor is unconstitutional.• NY doesn’t have fraud goes into the essentials—they have material representation something more liberal that can go towards annulment.gay couples get married elsewhere and now they are filing for divorce in their state of residence and the state doesn’t consider them a married couple. treated like a K.to dissolve the marriage. Because the state made a statute that said you need to go through state ct. ← 12-4 if the premarital agreement says no fault divorce and H then files for no fault under state law. . • What if the same sex couples have a premarital agreement? Will it be recognized? Yes. ← Access to divorce? Is there a constitutional right to divorce? ← Boddie v Connectiut.

another country. • Williams case. The ct did not find the woman’s argument even if she could be considered domiciled in Iowa. the US has to acknowledge that. • If you don’t raise the jurisdictional issue. If the 2 have gotten a divorce somewhere else. The case was dismissed bc the woman was not a resident of Iowa for 1 yr. If there was a K then follow the state of where the two reside. Status of divorce can be severed. so the divorce isn’t recognized elsewhere. o In domestic violence cases.the divorce.the domicile of the plaintiff had jurisdiction of the divorce.only one person. people still had the right to travel. . ← Sosna. that’s why domicile is so important. cant support yourself ← Jurisdiction over Family Disputes: • We have forum shopping issues is family law issues jurisdiction becomes really important. this is usualmost states require 6 weeks to 2 years for a person to stay for them to be a resident.you use the law of the place where the divorce was first filed.more if you have kids. You have to have minimum contacts. Nevada had no subject matter jurisdiction. This safeguards the state against a jurisdictional attack. The woman claimed there was a discrimination on your right to travel and doesn’t allow recent movers to get a divorce.married in 1964 in MI. lived in NY 67-71. H was served in Iowa when he went to visit the kids in iowa and he contested Iowa jurisdiction for the divorce. But the state didn’t discriminate.whole purpose of Las Vegas is to get a quick divorce and quick marriage • Ex parte divorce.14 day procedure but other party is seen later o One party doesn’t care o Maybe one person just wants to make it hard on the other person ← Williams case. the petitioner is present. • State interest. no domicile. another state doesn’t have to recognize it. you’re estopped from raising it later.← 12-5 the forum’s law is the law followed. separated and woman moved to Iowain 72 w the 3 kids. If a ct doesn’t have subject matter jurisdiction.

Going to antoehr state to get a divorce is forum shopping.H2 named Priscilla as sole heir but he had obtained an invalid Mexican marriage from his wife. If he was dead then living with husband 2 would be okay. he didn’t marry her. This would have been an equitable. So even though h1 and wife got a divorce in Nevada. Doctrine of latches. Because the Mexican divorce was found invalid. there would be no divorce there. would she be entitled to claim the widow’s indefeasible share? Think equitable principle. Want to know if W1 participated in the divorce. They both tried to subvert Wisconsin law. • Note 2 p 616. H2 should be estopped from claiming he didn’t marry W. he partook in the invalid marriage.the ct held that Priscilla was not legally the wife of Wesley because the divorce she got from husband 1 was in Mexico. so his estate cant really argue now no. but if you get it in another country. .wait so long that you lose your right to sue/ claim. His estate should be estopped from cutting her out of the will.Wesley had gone to Mexico for W to get a divorce and marry her. They then went back to Wisconsin in this case.she would be estopped from a claim to H2 wealth. There are time limits for how long you need to stay in a state in order to file in that state. • Putative Spouse Doctrine • There is a presumption of favoring the marriage. You cannot go somewhere for the purpose of diverting state law. As a stranger.← In Re of Steffke. what difference was there if they could find husband 1. • Note 1. Quantum meruit. She should get her elective share. so the inpediment would be cured if the H1 was dead • She cared although she was still in H2 ‘s will because spousal benefit. Clean hands doctrine. They want to keep couples together that are husband and wife. (no one had clean hands in this case. Longer than statute of limitations claim. Each state does recognize full faith and credit.bc of Williams.what if W was disinherited by the will. she’d get taxed more. all involved). you are not given full faith and credit (comity) .well they’d need to know if the husband 1 was dead. not legal cure.can inherit 2 million before she is taxed.

H filed for divorce in the UK after he got a million dollars. 1. UK possibly had sufficient contacts. W filed in MI. Its considered separate property. under comity. So its his money anyway.so we in US care what divorce laws are for women and children. Divorce Recognition Act. We need to see if the H is trying to keep the money from the trust for himself. then move in FL. H made a special appearance and NJ said we have jurisdiction.P 617 13-1 • H and W live in Nj. 2 years later.← Must do all the questions in this chapter…. wins. Prior to filing he got a million dollars. W filed in NJ. So whatever ct finds they have jurisdiction first. MI will have to recognize UK divorce. W never appeared in FL and they never decided on jurisdiction. Gifts and inheritances.you go to foreign jurisdiction for purposes of not being subjected to the US law. H filed for divorce in FL. ← 13-2 H and W live in MI and then move to Uk with their 3 kids. In the US W wouldn’t be entitled to the money and H didn’t file in UK not to have MI the state of divorce. who wins? First in time doesn’t matter when jurisdictional issue is brought up. Significant.must have personal jurisdiction . not necessarily the first place the divorce is filed. ← Personal jurisdiction.separate property. NJ is entitled full faith and credit and the matter is litigated here bc NJ ruled that they had jurisdiction on H first.that’s where the matter is disputed. conflicts of law. Here they didn’t just go to the Uk to get a divorcethey were there for 2 years. They separated and W returned to NJ.not subject to division in divorce. If no one appeared in either Nj or Fl.governs money and custody matters. H files for divorce in the UK. not subject to division. then we can use MI. Is UK law lacking in sufficiency? Lets assume that UK laws are sufficient.if the contacts of the foreign country are not sufficient and we can use American law. so there’s no reason not to identify the Uk as the place of divorce.

• Uniform acts to decide who has full faith and credit. Long arm jurisdiction. • When you have conflicting orders. the other state has continued jurisdiction. B lives in NY stops in PA for 3 hours. 38 weeks later.Uniform Interstate Family Support Act. prostitute is subjecting him to PA for child support. Plus it was a unilateral action.pg 623. she can file in CA through URESA and have it litigated in NY. the ct said even if he paid for the ticket for kid 1.it may change based on the place of child.can argue about jurisdiction alone. H said you have no personal jurisdciton. • Spousal support is dealt with differently • When it comes to child support. Even if a state doesn’t have a long arm jurisdiction.does CA have personal jurisdiction over H to rule in child support issue. .← Kulko case – issue. has intercourse w prostitute. who has priority and who gets full faith and credit? • Fed ct. PA has jurisdiction.wife bought a ticket for kid 2 – this was a unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact w/ the forum state. UIFSA. The W and H went to CA for 3 days and got married and then they went to NY to live and then they separated. But CA didn’t have any personal jurisdiction bc they had no minimum contacts. cant subject him to personal jurisdiction bc that would discourage parents from being agreeable w one another. P626. H kept the kids. There’s continuing jurisdiction unless no one lives there or they can still consent to the continued jurisdiction there. CA has no interest w/ him and he has no sufficient interest with CA. it can enforce the order of another state. Wife went to CA to live. this isn’t enough for min contacts. she waited for both kids to come. but the wife didn’t file for her support then. He is a total outsider to the state of CA. URESA. ← Note 3 and 4 on pg 624 and 625. If another state has taken an initial order for support. CA said you “caused an effect in the state of CA” by buying a ticket for the daughter to go to CA. Ilsa went to live with the mom (dad knew) and then the son just went to live with mom later. She could have filed through URESA. The W filed in CA for custody of kids and for child support. Difference is it deals with support. Give the original state full faith and credit.

but still cant modify the nature. UNLESS everyone’s left but consent to continued jurisdiction. so there’s no continued jurisdiction if no one lives in the initial state. Once you have initial order. home state ← 2. Arrerages and interest is also governed by the initial state that rules on the order. you still have the property in California and its not located within Kansas.the state initially issuing the support order has continued jurisdiction forever. duration of current payment under a registered support order. if both the child and the parents move. ← 13-3 ← a. Just the content. ← B. you have continued jurisdiction in CA.pg 634 UNIFORM CHILD CUSTODY AND JUR ACT ←  jurisdiction for custody proceedings. o When can a 2nd state modify the original order. ← ***DON’T need to remember the numbers. Child support under UIFSA? There is no full faith and credit over what Kansas does bc they have no jurisdiction over the husband. ← 13-4. so Kansas doesn’t have jurisdiction.everyone left. ← UCCJA. the 2nd state can take jurisdiction. extent. to deter abductions ← 1.when no one lives in the original state anymore. 611 (2) both divorce in CA and then move to New Mexico. ← NEED TO KNOW p626 ACT and p638 ACT. amount. Kansas has in personam jurisdiction over the wife. o 604 Choice of Law. it depends if wife is domiciled in Kansas ← even though you have divisible divorce. o The issuer state controls for payment amount which can not be modified. significant connection test . Sometimes you register the order bc you later might need to enforce the order.wage garnishment.there are some things that are substantive that will not change.• • Spousal support. 205 a (1). the amount of yrs for support cant be changed. Child support is dealt with differently because of the best interest of the child. There may be a new ct .

that state still retains jurisdiction if the kid was taken unlawfully by the parent contestant. So if the child had lived within the 6 months it is still the home state. • The alternative is best interest of the child or where the child has significant contact with the state. has limited powers bc of interstate commerce issues ←  adopts the UCCJEA ← *gives priority to: • 1. emergency-no CEJ unless child there for a while/ it becomes the child’s home state ← 4. ENTITLED TO FULL FAITH AND CREDIT. • The act assumed this would end forum shopping. others are not. THEN significant connection test (if no other ct appears to have jur then go here) • 3.temporary but never establishes permanent jurisdiction. No other state has jur o has CEJ o modifications IF ct has jur to make child custody determinations and the court of another State no longer has jur or declined to exercise such jur to modify . no other state has jur • Which state has full faith and credit? Has to do w parents and people that are acting as parents. 2 states would decide who’d get jurisdiction.← 3. HOME STATE jur= state which child lived with parents/ person acting as parent for 6 months before proceeding commenced • 2. if the kid lives in two different states. 635) ← IF CHILD HOME STATE ISSUES CUSTODY ORDER. • 3rd alternative. ← PKPA-Parental Kidnapping Prevention Act (p. Emergency (temp jur but may become permanent if there long enough) • 4.first in time to commence wins jurisdiction.kid goes back and forth.in the event of an emergency. both states have jurisdiction. ←  federal law that comes to rescue. • If a child is abducted from the home state.

**also. The dad has the burden to state that original jurisdiction no longer existed. 638). Consistent with PKPA. BUT kids visited Texas 6 times and stayed as much as 1 month at a time. Its either significant contact w the state or substantial evidence in the state is present. ct doesn’t have to address sufficient evidence.he added to the fact they weren’t there more). *relatives lived in Texas.visited them 15 times . (unclean hands doctrine. Then parent one and the kids moved away from texas to 4 different states in 5 years. (mere duration isn’t enough for contacts). kids would’ve flown more to texas but the dad didn’t allow them.everyone lived in texas where the original decree was issued. what part of §202 applies.← UCCJEA (p. dad says texas doesn’t have sufficient contacts. texas said we have continued jur until there are no significant connections w texas. if any? (1) sign connection test or (2) doesn’t reside in (state) anymore ← ← In Re Forlenza. Has (state) lost CEJ? Look to §202 ← 4. (1) the continuing jurisdiction ends if the child and parent don’t have a significant connection to the state OR (2) child or parent don’t live in the state. (state) HAS CEJ (until…?) ← 3.adopted in all 50 states. Did the texas trial ct have exclusive continuing jurisdiction? Texas was the original issuing state. * also mother visited her kids and established a relationship. also. ask who is the issuing state? ← 2. . ←  it prioritizes jur regarding which one will be given full faith and credit ←  when CEJ lost? When (1) there are no more significant connections to the issuing state + no sub’l evidence avail to State or (2) child plus parents + do not live in issuing State anymore ← -can modify only if ct had jur to make an initial determination ← ← ANALYSIS: ← 1. We look at UCCJEA.mother met her burden of proof.

← Friedrich. What is the governing law? International Child Abduction Remedies Act.there is enforcement in international tribunals. these states have full faith and credit.← 13-7. there’s no enforcement. • If we intend to live somewhere-it’s a habitual residency • If we go to London to vacation and extend the vacation to one year. soft law. Its important because it orients people toward some conduct. How does the treaty become domestic law? If there’s ratification of Congress. . The domestic law is slightly different but treats the issue of a wrongfully removed child to be returned to its 1st country of habitual residence. UN. The ct didn’t want to rule on what exercising custody means.mother pulls kid outta Germany when dad put mom and kids belongings outside.is a declaration. The Hague convention. Its enough to say the • Home state doesn’t equal habitual residence state habitual residence is based on intent.ICARA.cts that established the UCCJA. ← 13-8. much more domicile. Family lived in FL and then mother left to Kansas with children and you need 60 days to establish residency.even if she’d waited.this is hard law. Wife filed for divorce and custody in Kansas. Section 208. it becomes a domestic law. They take a broad view of exercising custody. The dad visited the child and planned to keep visiting the child AND he filed for custody in Germany  therefore he clearly was exercising custody. The kid was wrongfully removed bc the husband had exercised custody of the child. The new state shall decline. Mom and kid went to Ohio.from Hague Convention. Unclean hands doctrine.conventions and treaties. preventing the new state from having jurisdiction. Takes an “appreciable period of time” qualified by intent to establish a habitual residence state. the country of habitual residenceship is still US.where do you intend to remain. PKPA. Kansas has divorce over the divorce. unless everyone consents or the new state is a more appropriate forum.

The defendant has to prove the defenses. Hague convention. The mother said grave risk. The dad had consented to the child being removed. Its clear and convincing bc we don’t want to get in the middle of the foreign country’s issue. the court said if its not the best interest of the child to stay in germany. Once one files then we keep that ruling. You can have a civil and criminal claim about the uprooting of the kids. ← ← Chapter 14: child custody . if you have jurisdiction under UCCJA. There was evidence. There may have been wrongful taking but the defense would have been consent.intent to stay in Houston area. Then she raised grave risk which has a clear and convincing burden. Decide who has jurisdiction 2.defense of domestic violence. Is there a defense to return the child? Well the mom left all of her belongings in NY and just went to Belgium to have a baby there.she met secretly. • As between the US and other countries. The dad consented to getting the kid a US passport and having the mom and kid to leave to NY. so it’s a race to the courthouse.if there is a home state.looked for a job.to the child and/or the mother of the child. Was there a wrongful taking? 3. • Note 6 compares ICARA with IPKA. they moved to Texas. Also. ← 13-12 Hague convention. ok but this isn’t grave risk. Was the taking wrongful? Is there a defense to allow the child to stay in the US? Who has the authority? 1.PKPA gives the order full faith and credit. Defenses.both these may have jurisdiction because no one else might take jurisdiction. Also.felony for kidnapping.criminal statute. The ct said. but 201 (a)(4) UCCJA. because neither Kentucky nor Texas has jurisdiction under 201 and they are not a home state.habitual place of residence was the united states. If there’s no home state. There was no consent. other countries pay closer attention to what children want to do and where they want to stay far more than the US. the German ct would make that determination.bc the kid had relatives in Ohio and would psychologically be impaired if he left Ohio.here in the US. that takes priority. she created the situation of having the kid uprooted from Ohio. So. There is no jurisdiction in Finland under Hague Convention bc there was no intent to live in Finland. the dad applied for custody and visited his kid. IPKA. ← 13-11.

And an attorney can’t represent 3 children. absence of support • Some states require a parent education program to endorse congenial relations between parents.children’s rights are limited. Not all states have adopted it. • Sometimes an attorney is appointed to the kids in particular issues • Father’s rights used to be paramount. • Tender years doctrine. school and community • Mental and physical health of all individuals . A child has a right to be with their natural parents. abandonment. divorced in 1992.husband and wife were married in 1975. ← Miller case. children have rights. This was because the male had a bigger responsibility of financial support. ← Best interest of the child: Uniform Marriage and Divorce Act section 402. Then starting in the late 1800s.← Do children have rights to determine custody and how do we look at the best interest of the child and constitutional provisions • Children experience economic circumstances. diminished contact with family. They already had a guardian ad litum but they hired an attorney. What right does the child have? We adhere to it to some extent. the attorney represents the wishes of the child and a child doesn’t always know what is best for its own good.tender years doctrine and best interest of the child came out. • What rights do children have? Rights are diminished based on their lack of capacity.children didn’t have the capacity to represent themselves and a guardian is better at representing their interest. • Wishes of child’s parents • Wishes of child • Interaction and relationship of the child with parent • Child’s adjustment to his home. The guardian serves the best interest of the child. Common law.young child is presumed best with their mom. This is a rebuttable presumption and father has the burden to prove she’s not a fit parent. the guardian serves their best interest. Under the convention of the rights of the child. Under the constitutional issue. Three minor children wanted to intervene in proceedings about divorce/custody.

problem is the judge’s latitude which is huge and there are no weights assigned to the factors. The supreme ct said race cannot be a factor in determining custody. He claimed the child would deal with peer pressures. material change of circumstances. This case concerned hypothetical defamation/teasing. • Gender also can’t be the sole factor. . Then the father filed a petition to modify the judgment because of changed conditions. The kid is already with the mom. Fl is gender neutral.issue: can the tender years presumption withstand 14th amendment due process scrutiny.so there must be substantial. but there are other factors to consider.Linda and Anthony divorced in 1980 and the wife got custody of the child. • Some states add other stuff. When you make an initial order. but can’t be hypothetical.• ← ← Consider only conduct of the parent that affects his relationship with the kid. material change of circumstances.the mother had married a black man.which 1st ruled for the tender years doctrine Ex Parte Devine. Sex and age of the child is important. Lets wait til they happen and then we can consider the case. ← Prohibited factors. Can be a factor.the father and mother have already been looked at. Everything you do arguably affects the child BUT this means can’t attack the person’s “irrelevant” conduct.bc we are treating the father differently. Tender years doctrine is eliminated.gender and race ← Palmore v Sidoti. The case said the hypothetical effects of racial prejudice cannot be enough to take the child from the mother.a factor given to be considered. Also. Now custody is more gender-neutral. here a custodial decision had already been made. • Race isn’t enough for sole factor and can’t be sufficient for substantial.its hard to overturn on transcript on appeal 1830 helms case. The ct finds the presumption is unconstitutional and discriminates against the father in custody issues. • Trial ct makes determinations on the parents person and character. The trial ct agreed. But there is an argument for this to be a tie breaker. The gender issues are dropped. – inconsistent bc sometimes there’s a factor of values and morals.

balance the interests of the custodial parent practicing ← their religion and the child ***4/7 • The Role of Religion and Parental Life-Style: o Osier v. don’t consider religion at all. 1. if the custodial parent’s religion affects the child’s temporal well-being. • So.when we use religion to determine custody of the child.bc of establishment and free exercise clause.← ← ← Osier v Osier. for custodial parent1. • Religion isn’t considered w/ non custodial parent. then. Osier: • o Religious Test:  • o There is a two step process:  Temporal well-being is immediately and substantially endangered by the religious practice in question and if that threshold determination is made The court must engage in a deliberate and articulated balancing of the conflicting interests involved Who is the custodial parent?  • o Problem 14-1:  What is the problem in this case?  The father is trying to undermine the mother's religion • o Is it enough to say that you are never going to stop saving your child?  What about the fact that the father is damning people that do not believe in Jesus Christ?  Now this is a different issue and could actually be associated to disturbing the temporal well-being of the child • .has to be immediate and substantial effect 2. if the consequence is that the custodial parent is endangering the child bc of the religious practices then. Consider religion after custody 2. balance the conflicts of interest.

school and community record of the child The preference by law Stability of home environment and employment of each parent and Other factors relevant to the parent-child relationship . Fulk:  11 Factors Court needs to consider for Custody:  Age.o Can the father's right to exercising his religion could be limiting by esstopping him from educating his child in the sense that he is informing him that he and his mother will go to hell if they do not believe in Jesus Christ • o Is there a free exercise of religion in this example?  Well there is a burden but it is justified • o Fulk v. health and sex of the child  Determination of the parent that had the continuity of care prior          • o There are several issues in this case:  Domestic Violence issue  Lesbian prejudice  Parental values and life style issue • o We are not suppose to consider marital fault and parental life style as the sole basis for custody • o There used to be two basis' as not having the lesbian/gay parent from taking custody:  Moral rules to the separation Which has the best parenting skills and which has the willingness and capacity to provide primary child care The employment of the parent and responsibilities of that employment Physical and mental health and age of the parents Emotional ties of parent and child Moral fitness of parents The home.

the violent parent must prove by clear and convincing evidence that other circumstances require that the child be placed with the violent parent rather than the non-violent parent. . Abuse of discretion is looked at on appeal. Texas:  Sodomy case discussed earlier in the school year which prohibited against sodomy by same-sex couples • o The Role of Domestic Violence:  Owan v. then it must be considered a factor in FL ← Usually the trial ct is given defference. this was a job for the court/judge to determine based on the evidence found by the expert o if there is evidence of domestic violence. Owan:  Statutory presumption: • The effect of the statutory presumption makes domestic violence the paramount factor in a custodial placement when there is credible evidence of it. To rebut the presumption. • • o What is the problem in this case?  The expert did not apply the presumption • o What did the court do wrong?  Expert is out on a fact finding mission  The expert based on his findings decided that there was no domestic violence o However. • Criminal behavior o Lawrence v.

We want the primary caretaker to take care of the child. • Significant time sharing is child custody in FL .there is a presumption that he is unfit parent bc of domestic violence. This shows us that this case could have been decided differently. so it was unfair. then we have joint custody. both are primary caretakers. Fl doesn’t like using the word custody and visitation.ct awarded custody of the child to the father bc he was better educated and more intelligent. cts can sua sponte give joint custody.we give experts 0. so here we are not just looking at what happened but we are trying to find out what will happen. they are both fit.that’s what we want bc we are concerned with the best interest of the child. ← A. ← Beck v Beck.the presumption is that it is not in the best interest of the child to be with the violent parent. Dads can and do do that.if they are both primary caretakers. Its good bc of the best interest in the child but in the future the great parent may not be the best parent in the future. The judge ultimately decided the truth of facts and weighs all the evidence at the trial level. but since this is under role of experts. Based on Owen.← Jones v Jones-if you prove the other parent is unfit. But mom got custody in the end. Ct says look at the tests. Are the evaluations for past conduct or what? The evaluation is suppose to be good for future condust. Where we have double income homes. the woman would have gotten custody. Even if the parents don’t request it. you have proved your case. So why cant we go back to the tender years doctrine. The woman claimed she had depression. ← Section 3: Alternatives to the best interest of the child standard• example is that for domestic violence. ← P694 criticisms of custody evaluations. Rhetoric is really important.there are special connotations to certain words. bc mothers typically are the primary caretaker. The primary Caretaker Presumption ← Garska v McCoy. He can rebut the presumption by clear and convincing evidence. How would have Owen decided this case? Is there any evidence of domestic violence here? There is some verbal and physical abuse when father was drinking.it was presumtivly in favor of the mother. Florida likes to give joint custody-both parents need to be in the kid’s life. Here we say why did we give mom the preference.

BUT arguably. Martha Fineman view of child custody. How do they determine it? Presumption only works if both parents agree. Pros/cons: pros.they look at the best interest of the child.Fl favors joint custody.presumptively w both parents.joint voluntary is ok if its voluntary. Like with all studies have to be cognoscente of the variables. custody is determined not for the good of the parent but the best interest of the child. • In Fl – you need a proposed parenting plan before a divorce is granted.always there are exceptions. What does Florida do? Section 61. They consider that the child has the right to have both parents.some kids are better of with one parent.13. but it assumes that the parents will maintain a good relationship and work through their problems together. Also. lots of factors that may determine if joint custody is better. a problem is that the joint custody order is imposed on parents who do not and cannot live up to the demands of the order of custody. This will make the joint custody successful. undermines Fineman’s arguments. the truth of the matter is that the mother usually.just time-sharing.you can do it with some negotiation. is the primary caretaker or the one that does most of the caretaking. or one parent usually. • In FL no custody or visitation.Parental responsibility is the same as what was called legal custody. Cons.children are seemingly better adjusted in joint custody. education. Its unfair for the mom in this situation to share caretaking responsibility and privileges. Also. It forces some sort of agreement. but in practice this doesn’t always happen.there’s less of a reward for past conduct (unlike Martha Fineman) but more focus on potential/ future conduct. Conincome. • Rotating custody (means you bounce the kid physically between parents. Fl looks at the parenting plan. • .a nightmare) is repealed.sole custody. • 61.13.

A ct may consider a child’s wishes for custody or a visitation. state interferes in extreme.← In Re Marriage of Kimbell. The husband claimed the wife was alienating the kid from him and that’s why the kid didn’t want to spend time with him. David claims that he was denied due process. abusive situations • With a separated couple. . so they can determine custody and visitation.parents have fundamental rights to custody and control of their children. but forced visitation.danger or threat to the child. She is looking at the best interest of the child. ← Visitation rights cant be undermined unless there is endangerment. ← Anna Freud. The trial ct can consider a child’s desire w/ respect to custody but it can only be a factor to consider. We do not oppose visitation. mentally. ← Fundamental right of custody and control. the state can interfere more. but it is Not the only a factor in determining the best interest of the child. This arguably gives the custodial parent too much power.usually need a case of abuse. The state has an interest in the best interest of the child. The rule section 60-1616(a). Here.can the trial ct condition parenting time with to what the child desires (in this case a 16 year old son). He was denied parenting rts w/out showing he is an unfit parent or a threat.due process rt under 14th amendment.a parent has a rt to parenting time unless it will physically.the non-custodial parent should have no right to visitation and visitation should be determined by the custodial parent. • With an intact marriage. morally or emotionally endanger the child. • Stanley v Illinois is precedent. It was remanded either to determine a visitation schedule or find that visitation would harm the child. By the court ordering visitation against the wishes of the custodial parent hurts the authority of the custodial parent in the eyes of the child. Its hard to permanently take away parental right.

She married Painter against her parents wishes. 3. We have a presumption that favors parental custody 2.best interest is not to uproot the child. there is a stability issue.the mother and sister die in a car accident. wanted to be a free lance writer. the father offered freedom.← Painter v Bannister. solid background. The father was a dreamer and a romantic that had dropped out of high school. • Ironically. the father left the child with the grandparents and the child has become well adjusted. The wife’s will said custody should be given to dad. The grandparents are elderly. .the grandparents were a stable. Mark the kid went to visit dad in California one day when older 2 years later and wanted to stay with dad. The mother had come from an educated rural Iowa background.one in his basement and the other he attended with shorts and a t shirt. Dad then got custody bc it wasn’t fought by the grandparents. The father was also an atheist and had 2 funerals for his wife. Even a presumption favoring the parent was eroded by the presumption favoring keeping the child in his environment that he’s gotten used to. religious. changed jobs 7 time in 10 years.best interest of the child is to let him remain in the custody of whoever has custody nowthe grandparents. 1. then custody would go to grandma.it would take a lot of work to raise a child. When the mother died. if he couldn’t take care of him. • Here. The ct said they didn’t make a value judgment but really did claim the father having custody would not be in the best interest of the child. The grandparents claimed they provided discipline.

This was found unconstitutional. control.state case law permits an award of custody to a nonparent in a case of parental unfitness. custody. She was an immigrant and finally got an education and a job. its not in the state’s best interest to let that child remain with the unfit parent. Does the parent have absolute right to arbitrary decisions on visiting the child. ← Modifying a Custody Order: . But some ppl may have said ill work at mcdonalds and keep my child. The child was in foster care.we wont force her to live at the lowest possible means. If the parent is unfit. This is a matter parents excluding 3rd parties. abandonment. ← ← 14-5 Indian woman became pregnant and gave temporary custody to the state but never abandoned the child.what is the narrow holding in Troxel? The ruling is broad.allowing third parties an interest in the child. Still. This case claims that the federal constitution requires a showing of actual or potential harm to the child before a ct may order visitation continued over a parent’s objections. The ct may order visitation rts for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances”. ← 14-4 natural parent can stop visitation of non biological and biological parent. this arguably gives no preference to parents for custody and control of child. or extraordinary circumstances.give the parent absolute power of visitation. custody proceedings. Maybe this would be different if she was a US citizen. and wanted the child back.would have been more in favor of what the mother did. Ct. Dissent. • Grandparents visitation post-Troxel: cts have decided that a fit parent’s decision is entitled significant weight and that the party seeking visitation bears the burden of proof. “any person may petition the ct for visitation rights at any time including but not limited to. But it was also for shared visitation of fit parents. we want to promote a child staying with their parent.← Troxel v Granville.

Also the child’s has family and friends here and is situated in school. If the child is already with the parent. child’s activities). the father assumed more responsibility for the child and the parties truly had a joint custody relationship. PROCEDURAL POSTURE: Plaintiff mother appealed an order by the Superior Court of New Jersey. the move was against the child's wishes and would disrupt his extended family relationships. We will look at their good faith reason motivation for moving. ← Traditional removal.traditional removal – good faith and not harmful to the child must be addressed. reason for opposing the move. the relationship of the dealings between the parties. it was a joint custody situation.Look at good faith for the move and if its not harmful to the child (look at the relationships between child and father. – this was traditional removal • In a traditional removal only one parent has primary custody. Chancery Division. Family Part.prima facie case. don’t want parents to miss out on the moving opportunities. • What happens if both parents agree.13001. just have to file. She said she was a primary custodial parent but she wasn’t.parental relocation with a child. – to switch jobs not good faith bc may find work where you are. mother was moving to get married.← OConner v Oconner. ← OVERVIEW: When the parties were divorced. they were granted joint custody of their child with the mother having residential custody. ← Change of custody. Over the years. school disposition. If parents agree in FL. parents have to file the agreement with the court. Bergen County. The trial court denied her motion and vested residential custody with the father.in FL if there’s no objection. The mother became engaged to a man in a different state and sought to remove the child to the new state. May depend if you need a ct then. The child knew nothing in the new state. • In modification – both parents have custody ← Look at reasons for the move. The appellate court held that the trial court properly analyzed the case as one for change of custody since there was no true custodial parent. that denied her application to remove and relocate the parties' child and designating defendant father as the child's primary residential custodian. Must have a petition with the ct. It was affirmed.(for joint custody/ shared parenting) the parent that wishes to relocate with the child has burden of proving best interest of the child to relocate.custodial parent is choosing to move. other relatives. However. It will affect the child’s life and the entire habitat. There was a good faith reason for the move and it would not be inimical to the child's interest. . ← 61. The father had a stable home environment. Here the woman didn’t get to relocate with the child.

30. not whether you have the money in your possession or not.• ← only const right is the right to travel. You aren’t forced to get pricey healthcare. this property was property when he claimed it. 61. The right to the money. Sometimes you proportionalize it. but with group coverage. Are the lottery tickets marital property? He says they are separate property. By this parents right to travel is not impeded. Valuation of property may be decided using a different date than that of the filing of divorce ect. any property obtained afterwards is separate property.you hava a date of characterizing them as marital or separate-would it be fair to get their value as of today? Maybe or maybe not. 61.FL after you file the petition for dissolution/ divorce or at the time of a settlement agreement. right to the property is the one that matters. parent is required to cover the child. she says they are marital property? His argument was that the equitable distribution statutues say marital property only is what you know of at trial. ← ← P 753 Giha v Giha. Stocks. • • • So is marital property when you claim it? CT. • • • . So different states have different rules.healthcare coverage is required or easily accessible unless not easily available.you have a continuing duty to report your assets or reason to believe of getting assets until the final divorce. In his mind.part of earnings before and part after the marriage.at point do marital assets end.075 (7) .

He started earning them before he got married and he served in the military before he was married. can you trace the separate money into marital property ect…can you trace it to retain its individual value. she would have cashed in her jewelry for money.← Shea v Shea.husband gave his wife jewelry. Has he done that? **find out if he was earning the money before the marriage or during the marriage. He made an investment in the jewelry and when they appreciated in value he intended to keep the money as marital property. BUT in FL and other states. • Shea v.000 May 2. A gift in marriage is not really a gift. ← ****also. Engagement gifts could be conditioned on marriage. • Look at prenup and putative spouse doctrine. but what about other gifts? • FL 61. 2008 Withdrawal for House $1000 May 5. 2008 . ← O’Neill v O’Neill. He intended that if they were short on money. so they are separate property.gifts given to your spouse during marriage are presumed to be marital property and to rebut it must be by clear and convincing evidence. Shea Continuation: o o o • o o • • • • Hypo: o Based on O'neill:   Before marriage he developed a mail stock portfolio Then they get married O'neill v. might transmute the assets.075. It’s marital property in FL. Ct said benefits are separate. O'Neill: o All inter-spousal gifts are presumed marital property When you mix the separate with the general the commingling separates the property Because you could trace it really retained its separate character Benefits were suppose to be used for education but were not Tracing deposit $1. if you used separate assets to pay for marital property.used veteran’s education benefits to buy a house. He had a right to the benefits before marriage.

075 if the rent was passive than Commingling. Tracing. On first anniversary he decides to sell some stock to purchase bracelet and for first anniversary he gives it to his wife On second anniversary they got divorced  • o Who's bracelet is it?  Well initially when he sells the stock and purchases the bracelet  It is his • • Dissipation: o o • • Under 61. The defendant’s investment acct was separate property. Marital: Apportionment of Appreciation. Commingling. Inter-spousal gifts are presumed to be marital property under Florida law It is clear and convincing evidence General expenses are fine but it concerns wasting the money Suppose she sells the necklace . Brown:   • o Supposing you have a big apartment building and it is your separate property and you rent it out and are married  • Under 61.active Inherent qualities – passive.75: (6)(b) o o • • Separate v. and Transmutation o Brown v.rent goes into joint account.funds are transmuted Appreciation because of toil.

Here the ct says don’t determine where the profits came from predominantly and then decide on that basis. ← Prahinski. . • O’Brein. He argues it appreciated bc of inherent nature of the property. Marriage was 246 months/ 360 months of work. that’s associated with the business rather than the owner spouse. the value of the law practice.QDRO.there is goodwill in his name only. The ct found tha farm appreciated bc of Cargill’s efforts. ← Problem 15-2. Give owner rental value and divide the rest of the profits OR 2. Wife can argue that 12/35 is marital property for retgualr retirement benefits and 5/5 of the extra benefits are marital property. Use apportionment method.tortuous interference with economic entitlement. 20 yr marriage. almost all cts have concluded that the value of commercial goodwill.til 1964 then he retires in 30 yrs. he was at 30 yrs at the job and was entitled to retirement. should be included in the marital estate. Husband worked for 23 years and then got married. ← Taggart v Taggart. In computating the value of a marital business.the wife was trying to get the value of the lawfirm but the ct said no because it was the husband’s signiture and authority that made the goodwill. If he chose to retire at 35 years. • Goodwill.refers to the portion of a business’s value derived from its reputation. • Think of solo practitioners.qualified domestic relations order. What if he quit his job before the 30 yrs.if it’s a product of both ind toil AND inherent nature of the property…then the court apportion profits to whichever is the majority. o Can’t sell your personal goodwill –there’s no commercial value to it. Then we give him the amount of the pension prior that. Give the owner the reasonable rate of return and then divide the rest of the profits. – this is the all or none rule. shortly thereafter and wife argues that his retirement accrued during the marriage. 1943 working. Then att he 35 years they got divorced. Rule. then divide the marital property when the retirement accrued during marriage and give each half.a product of individual toil and the nature of the property. 1. The husband can argue that the extra benefits bc he was promoted come bc he did work for 30 yrs prior. 1947 married. There are also hybrid profits.if they are the product of individual toil.Professional licenses and degrees are yours (except in NY they think its divisible marital property).← Cokrill v Cockrill. ← Prahinski v Prahinski. not just for 7 years prior to getting entitled to the extra retirment. then maybe she’d be entitled to her share at the end of the 30 years. profits are community property. he is the only own that can practice so he cant divide his goodwill (personal reputation’s value).Rob at the time of marriage in 74 owned a farm and the net worth went up by 79K during the marriage. 7 years later. He worked an extra 5 years and got special benefit retirement funds.

If even secret bank acct accumulated from job savings. On the exam. (look at how FL treats transactions prior the marriage). the business was now worth 200k. make this true/false) • Will only entertain specific questions from now on. Maybe if he only saved and she just spent. 2. 4/30/09 • We are going to be provided these statutes: 61.can’t evaluate and cant be divided. What about the 50. He used all his contacts in used car sales .000 that the wife gave him before their marriage to start up. . 1. Underline idea that money is divisible bc the money is from the collective effort of the marriage.150k . 075.can value it and divide it) Personal goodwill. then they got married in 2002. If the trial ct says 50k was a gift.• • ← ← Commercial goodwill (McDonalds. talk about unequal distribution of the 150k in profit. then it is divisible marital property. A gift before marriage (w/out consideration) is separate property for the husband. • No calculator Division of Property• Husband’s Business.it’s the husband’s debt. Had it not been for the wife.he’d get more. Or can claim the wife gave him a loan. This is fraud. 08. If you look at the big picture. Also. then the bus. Would’ve never happened.gave him 50k in 2001 to start up. He must be forced to pay. • Credit cards. that’s why it his b-ness was so successful.he took out credit cards in her name and now she has a 5k debt. • Worksheets and hw assignments are fair game • Essay and non-essay (some multiple choice.its hers. • WaMu – she kept 20k in her acct prior to marriage. still look them over. 60. if its active appreciation (husband’s efforts during the marriage) that is marital property and it is divided. If it was savings from her job during marriage. He must be ct ordered to pay the credit cards. and in 2009 it was worth 100k. the wife has been the saver in the family AND the wife is the saver and came up w/ the start up money in either way. we have active appreciation. and then they divorced in 2009.then its divisible marital property. (good will) lets say in 2009. then we’d think about this during the division of the property.30. true/false. if it was passive appreciation from the 20k that she set up prior to her marriage. her credit is ruined so she can ask for some damages bc of that. 61.

its accrued during the marriage and it’s a division of what you actually have. Ct 1st must determine amount of alimony. alimony” may not be alimony really. If you remarry.husband spent 30k on mistress. If he has money to pay her attn fees. • Difference. If we traced the attn fees to the fraud. ← Types of Alimony: • . But its hard to separate the fraud fees. he would pay the attn fees. o Paramours are waste.its not waste.Attorney fees.its considered disappation –waste. And then. If he has to take out a loan to pay. Note 4. who pays the attn’s fees? Its based on who has the ability to pay. Husband had $133/ mo after he paid for expenses. • Even “permanent periodic payments. If you do something you normally do in the marriage. so its divisible.she was modest and only requested what she needed during the marriage so to continue living the same lifestyle.doesn’t tell you how its characterized. sometimes alimony is for specific purposes. then you determine child support.if its property. then he pays. If his intent was to waste the money so she couldn’t get it. bc alimony is a source of income.she paid 5k in attn fees.anyone can run the business. If someone dies (wife or husband) you don’t pay or receive the support. ← When is something considered property or alimony? • Permanent periodic payment. • Paramour.that’s why he has business.then its waste. If one person dies or re-marries.might be an argument for unequal division of property.can consider it a disease-not waste.the trial ct pointed out alimony is required. But can also say its commercial goodwill. Not attributable to fraud. then she pays her own attn fees. periodic payments. ← Price case. Marriage established a continuing duty.the guy was in the military. • There are lump sums.not to the good of the marriage o Gambling debt. • What of the wife wants goodwill? Can argue its personal goodwill. • Alimony. then you don’t get alimony (as an obligee).ongoing support based on what’s initiated during marriage. She requested alimony. doesn’t matter. wife stayed at home and had a cosmetology license.

until life of obligee or remarriage.voluntarily unemployed. he must look for work and owes for the alimony to ex spouse. Is transition.← 1. Price case. some jurisdictions says no.ordering support makes a difference.. rehabilitative. There’s a lot of judge discretion. ← Perez. Can modify it if it is the jurisdiction that initially ordered alimony. That ct can only modify it. Look at 61.you have alimony for job training (re-training) and education so the poorer spouse can try to step into a career (short period of time for definite purposes to enter the workforce. then the ct will look at that to determine your small alimony. The amount of alimony the spouse gets has nothing to do with how much one gets for child support. ← 3. not contemplated in final dissolution . what are your physical capabilities. then you would still owe this amount. ← 4.a subset of rehabilitative alimony. You can use it to modify support decrees (modify child support and alimony). • Ex husband didn’t try to do anything about his unemployment.10/ 11 or 13 years or more. it can be periodic. You had so much money when married. now you have so much less…you have to have a period of transitioning. How long have you been married.like 4 years). A long marriage. ← Malone and Zabayos – involuntary unemployment or voluntary unemployment is important for purposes of child support and alimony. (jurisdiction). so ct said he had bad faith.temporary order of alimony until he judge hears the case and determines whether alimony should be awarded. Once you get married you have on-going obligations. But if you voluntarily quit/ got fired so you wouldn’t have to support your ex spouse. If you are married to Donald trump but he has you on a small stipend. • Suppose you have rehabilitative alimony for 4 years and get married within 3 years. He had plently of money to support his new gf and her kid. but if your husband was making a ton of money (its not just whether you can support yourself) but are you going to be able to continue your lifestyle after the divorce. After. bc the money is to rehabilitate you for the opportunities lost bc of the marriage. pendente elite.financial affidavit. continue. • If you are divorced have to have good faith and cant put ex spouse in a position of parril in order to retire. If it was in your prenuptual agreement. Lump sum (is it property division or enough money to help her for a while) . permanent. can you support yourself? Sometimes fault is factored. still it cant be enforced if unconscionable.for continued support of the spouse. ← 2. bridge the gap. permanent. can modify alimony. You may be employed here. • Burden of proving its involuntary.08 factors.

So for ex husband to modify his support obligation the ct had to find specific factors. Maybe depends on whether it’s an annulled marriage? Ect. Suppose they have a support relationship. • Whoever is claiming something has the burden of proving it. then 3 days later.ct will look at supportiveness.sharing cost of living expenses/ a supportive relationship. well what is a supportive relationship? Is it only an economic relationship? Sharing expenses. lived together for a long time.fair case. but not w/ money?? Hasn’t been decided yet. Well.supportive relationship. • Also can modify based on change of circumstances. ← Lindstra case. Are you 2 living together? Pooling income to cover costs? • Supreme ct hasn’t had a say in 61. casual relationships don’t count. a supportive relationship. But cohabitation isn’t good enough/ isn’t sufficient.lived with him for 10 years.14. can the spousal support continue? No.so ct may order $1/yr. • What if it is a supportive relationship or 2nd marriage and spousal support ends. I don’t know. but some ppl just co-habit. .Buckston.14 – supportive relationship. the relationship ends. but cant terminate alimony. Spousal support terminates w/ marriage. 61. the two divorced and wife started living with a man.

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