Family Law

Front 1

Restrictiosn on Marriage:

It takes more then the two parties to form a valid marriage in most instances. It takes the two parties and the state. Marriage is a state recognized contract. Marriage cannot be cancelled by mutual agreement, but instead need a divorce by petitioning the state to dissolve the contract. The state can regulate all incidents of marriage.

Back 1

Contractual aspects of marriage:

marriage is a contract

Front 2

restrictions on marriage:

is some kind of misrepresentation of fact relied on by the other party. In this case it has to go to the essence of the marriage.

Back 2

Contractual aspects of marriage:

fraud

Front 3

restrictions on marriage:

c. Facts: Plaintiff sought an annulment of her twenty-month marriage to Defendant on the basis that she was unaware of his severe drinking problem and that he would refuse to obtain employment. Rule: In order to obtain an annulment of marriage on the basis of fraud, the fraud must go to the essence of the marital relations. Johnston Case

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Contractual Aspects of marriage Case Law

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Restrictions on Marriage:

race and national origin, if the statue classifies based on race, discriminates based on race it will be considered a suspect classification and will be subject to strict scrutiny.
1. Strict Scrutiny: The state has to show that it has a compelling interest in enacting this law and the means used by the law to achieve that purpose are necessary.

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Constitutional limitations on restrictions on marriage: Three tiers of review that the court will engage in:

Suspect Classification

Front 5

restrictions on marriage:

Gender, Alienage, Illegitimacy. We apply intermediate scrutiny.
1. Intermediate Scrutiny: have to show that the purpose was important and the means are substantially related to achieving those purposes.

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constitutional limitations on restrictiosn on marriage: three teirs of review that the corut will engage in:

Quasi Suspect Classifications

Front 6

restrictions on marriage:

Rationale Basis Review.
1. Have to show that the state has a legitimate interest and the means are reasonably related to achieving those interests.

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constittional limitatiosn on restrictsion on marriage: three teirs of review that the court will engage in:

Everything Else

Front 7

Restrictions on Marriage:

three tiers of review that the court will engage in.

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1. Suspect Classifications

2. Quasi Suspect Classifications

3. Everything Else

Front 8

Restrictions on marriage:

c. Facts: white man married a black woman in Virginia. There was a law that stated that white races were not allowed to marry outside the white race, but other races can marry each other. They were married in DC and came back to Virginia. They were criminally convicted and were exiled out of Virginia. This was a race-based classification. So equal protection and due process. Rule: The freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state. Loving Case

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Constitutional Limitations on restrictiosn on marriage case law

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restrictison on marriage:

only restrictions or regulations that directly or substantially interfere with the right to marry will be subject to strict scrutiny. Reasonable regulations that do not interfere in that matter will not.

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Constitutional Limitations on restrictiosn on marriage:

Significant interference

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restrictsion on marriage:

i. Facts: Plaintiff contends a state statute requiring parental consent for minors to marry was unconstitutional. Standard of Review: rationale basis review. Because minors are not capable of making mature judgments and for this reason this is rational review. This does pass rationale basis review. Cause this is legitimate and it is reasonable. Rule: A state statute regulating marriages involving minors must be rationally related to a legitimate state interest. Moe Case.

Back 10

who may marry: Minors

Front 11

restrictions on marriage:

i. Facts: After their marriage was annulled upon discovering they were uncle and niece, David Singh and Seoranie Singh remarried in CA when they learned they were related only by half blood. Originally married in Connecticut. Rule: A marriage between a half uncle and a half niece is void as incestuous. Sing

Back 11

who may marry:

incest case law

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restrictions on marriage:

A marriage valid where it is performed is valid everywhere, unless it is against the strong public policy of the state where the parties are domiciled.

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who may marry: incest

Conflicts of law

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restrictions on marriage:

when you purposely go off to another state because you know you can’t get married in your state, and go back to your original place you were domiciled.

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who may marry: incest

invasionary marriages

Front 14

restrictions on marriage:

iv. Facts: Married his former stepdaughter. She wanted her share of the estate as a widow. Rule: a man may validly marry the daughter of his ex-wife if the first marriage is legally terminated prior to the second marriage. Back Case

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who may marry: incest case law

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restrictsion on marriage

no marriage between the nuclear family. States disagree as to first cousins, adoptive children, and stepchildren. Infinity relationships end when the marriage ends, therefore you are free to marry your former stepchild.

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who may marry: incest

Incest Legal Rule

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restrictions on marriage:

1. It is not strict scrutiny because it does fall under the category of a traditional marriage. This is rationale basis then.
2. Can we keep the ban under rational basis review? Yes because there is a lot of legitimate state interest.

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polygamy: standard of review

Front 17

restrictions on marriage:

i. Until 1993, same sex marriage was banned until Hawaii made it legal in the Baehr case. They applied strict scrutiny and said on its face it is unconstitutional. Until Baehr no state has even come close to recognizing same sex marriage. 10 years after Baehr Mass, Vermont, Connecticut, and California have allowed same sex (at least) unions.

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who may marry: Same Sex Marriage

Front 18

restrictions on marriage:

a. Property and tax benefits
b. Inheritance benefits
c. Child custody
d. Wrongful Death
e. Hospital privileges
f. Health Care Decisions
g. Benefits
h. Health Insurance Benefits
i. Retirement
j. Survivor Spouse Benefits
k. Marital Communications are Protected
l. Acceptance (need this because of the fact that they are excluded).

Back 18

who may marry: same sex marriages:

why do same sex couples want to get married, benefits they recieve

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restrictions on marriage:

marriage is a civil institution in a family law class.

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who may marry: Restrictions based on Gender:

Defintional Conclusion Argument

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restrictions on marriage:

2. Facts: Ninia Baehr (p) was denied a marriage license because she sought to marry another woman. Rule: Hawaii’s restriction against same sex marriage violates the state constitution because there is no compelling government interest to justify discrimination based on sex. Baehr case

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who may marry:

Restriction based on gender case law

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restrictions based on marriage:

3. J.T. (d) alleged that his marriage was void since M.T. (p) had become female through a sex change operation. Rule: As long as they can perform sexually then they will be considered a woman. A person may become a member of the opposite sex if a sex change operation successfully alters the physical structure so that he or she may function as a member of that sex. Could have been annulled for fraud, but no fraud here they knew about the operation to change the sex. M.T. Case

Back 21

who may marry:

restrictions based on gender case law

Front 22

Alternative Families:

i. Facts: The City of Brewer (d) refused to grant a use permit for a home for retarded individuals in an area zoned for single-family units. Here they were not related by blood. In cases like this look at the statute first. Penabscot Case

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Zoning Case: Statutory Case Law

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Alternative Families:

1. (1) Need a central authority figure residing on the premises in order for this to be considered a family.
2. (2) Family Values and Family Style of Life (this doesn’t guide us, don’t think its important).
3. (3) Permanence: how long are the residents going to be living in this house.
4. (4) Cohesiveness: court doesn’t address this issue.
5. (5) House Keeping: Do there own cooking and cleaning together, paying all the bills together.

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Zoning Cases - Statutory:

Factors to use for Statutory

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Alternative Families:

i. Boraas (p) challenged the constitutionality of zoning ordinance, which limited residents of single-family dwellings to persons related to blood, marriage, or adoption, or to no more than two related persons. Ordinance does not involve a constitutional right, therefore rationale basis review. Rule: The state police power, through zoning ordinances, is not limited to the elimination of unhealthy conditions; it can create zones where family and youth values and quiet neighborhoods can grow and prosper. Boraas

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Zoning Cases - Constitutional

Front 25

Cohabitation:

a. Facts: Braschi (P) appealed from a decision reversing the lower court’s ruling enjoining Stahl Associates company from continuing summary proceedings to evict him from the rent-controlled apartment where he resided, contending that he was a family member within the meaning of the city’s rent and eviction regulations. Rule: Within the context of rent control and eviction regulations, the term family will be interpreted to include those who reside in households having all of the normal familial characteristics.

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Public Law Case

Front 26

Cohabitation:

i. Exclusivity and Longevity of the Relationship:
ii. Emotional and Financial Commitment
iii. The manner in which the parties conducted there everyday lives
iv. Reliance on one another for daily family services

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Public Law:

Factors that Court Considers to see what Constitutes Family (Totality of the Circumstances)

Front 27

Common Law Marriage:

a. That the parties were eligible to be married.
b. Agreed to be married
c. Has to have been a mutual assumption of the marital relationship.

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In order to establish a common law marriage need to show:

Front 28

common law marriage:

i. Where both parties reasonably believe that they are married, they went through the ceremony they have a license and they end up turning out not to be married because of some technicality.
ii. Where one of the spouses believed in good faith that they were formally married. This is a situation where someone lies and says that they are divorced but they are not really divorced and wan to protect the new spouse.

Back 28

Punitive Spouse Doctrine:

This is a doctrine of much narrower application, only applies:

Front 29

common law marriage:

b. Only provides some of the benefits of a marriage but not all, Quasi Community Property.

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Punitive Spuose Doctrine

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cohabitation:

V. Fact: Following the termination of seven years of cohabitation, Michelle Marvin (P) brought an action against Lee Marvin (D) to recover property accumulated during that time. Rule: Where cohabitation is expressly or impliedly found on a sharing of property basis, the non-acquiring partner has an interest in property acquired during cohabitation. Marvin Case

Back 30

private law case law

Front 31

cohabitation:

An express contract for property or support is fine between cohabiting parties as long as the relationship is not based on meritocious acts (sex). Look at: Household services can constitute sufficient consideration here, and this is separate from the sexual act of the conduct. She acted like a wife, and this is a marriage alternative. Household services, and stuff you pay for in the real world. Has to be non meriticious. Mutual Effort: operating as a joint economic unit.

Back 31

private law:

express contract between cohabitating partners

Front 32

cohabitation:

VII. He was with his wife 23 years and he has a mistress for the same amount of time. The mistress sues. She says unjust enrichment, that she relied on his promise (promissory estoppel). Three different promises: (1) take care of her for life, (2) promise to divorce his wife. Court Finds: that she did not rely on the promise. There is a very strong policy against promoting divorce therefore even if they did find that she relied on the promise this would still not be effect for her. Norton

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private law case law

Front 33

cohabitation:

VIII. The most Marvin gives you is a private remedy, equitable remedy, promissory estoppel. The state does not recognize her in some type of contractual relationship.

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private law

Front 34

permarital contracts:

a. Facts: Mrs. Edwardson (p) sought enforcement of an ante nuptial agreement that Mr. Edwardson (d) would provide her with certain alimony and medical insurance. Rule: An ante nuptial agreement disposing of property and maintenance upon divorce is valid if made after full disclosure and if it is not unconscionable at the time enforcement is sought. As a matter of policy premarital agreements are allowed. Edwardson

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Policy case law

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Premarital Contracts:

Most jurisdictions will not let you waive spousal support in prenups.

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Policy:

Waiving Spousal Support

Front 36

Premarital Contracts:

Cannot contract out of the obligation to support your children and cannot contract about custody or visitation matters in a premarital agreement. If you agree in a prenup to provide more support for children then that can be enforceable.

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Policy:

Prenups and Children

Front 37

Premarital Contracts:

i. Full Disclosure: no material omissions or misrepresentations.
ii. Not Unconscionable at the time of enforcement. Here we are asking whether the agreement was fair.

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Policy:

What standards are the court going to use to enforce the enforceablity of a premarital agreement

Front 38

premarital contracts:

i. Mrs. Someone (P) filed an alimony claim, and Mr. Simeone (d) asserted their ante nuptial agreements as a bar to Mrs. Simeone’s (d) claim. Rule: an ante nuptial agreement entered into after full disclosure is binding, regardless of whether it was reasonable or fully understood by both parties. Court Said: this is a contract like any other contract, and we the court do not police whether you read the fine print on a car. Adults are free to contract and it is your responsibility to understand the rights of the contract. Defenses that she can use are: Can use common contract defenses like: Fraud, Duress, Misrepresentation. Simeone

Back 38

Procedural Fairness issues: Disclosure Case Law

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Premarital Contracts:

ii. On one side of the spectrum we have full disclosure and the other side we have fair and reasonable disclosure.

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Procedural Fairness Issues: Disclosure

Front 40

Premarital Contracts:

half the states have adopted this. Have to provide fair and reasonable disclosure, but a contract without such disclosure will be enforced if the other party waived the right to disclosure or if the party knew or reasonably could have known of the financial condition of the other party. The Burden of proof is on asking party, therefore making a duty to inquire.

Back 40

Procedural Fairness Issues: Disclosure:

Fair and Reasonable Disclosure

Front 41

Premarital Contracts:

i. She was claiming that it was not voluntary because she was provided the prenup right before the wedding. She volunteered cause she knew about this before the marriage. Simeone

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Procedural fairness Issues:

Voluntariness Case Law

Front 42

premarital contracts:

The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement, or after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

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procedural fairness issues:

Voluntariness: Independant Council

Front 43

premarital contracts:

the problem is that how do we determine what was fair at that time and things change over time.

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procedural fairness issues:

substantive fairness issues - reviewing the terms of the agreement

Front 44

premarital contracts:

: some jurisdictions will allow unconscionability review, but will apply it differently with property or support. Property was it unconscionable at the time you made the contract. Support is at the time it is due.

Back 44

procedural fairness issues:

substantive fairness issues - changing expectations

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premarital contracts:

They are not going to review the substantive fairness of the agreement unless it will leave a party of welfare, render someone so destitute that they will be on public assistance.

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substantive fairness issues:

UPAA

Front 46

Domestic Violence:

i. It is commonly suggested that women have other options and can call the police, then to kill their husbands. The traditional response by the police is to do nothing in a domestic violence calls or even to mediate the dispute. Preferred response today is an automatic or mandatory arrest. About 15 states and the District of Columbia have a mandatory arrest law, and it is a presumption in favor of arrest. Police have to find out who the primary aggressor is and make the arrest. Does arresting these people really stop these people from doing it again? We find that they go back to each other or they will end up in a similar type of relationship. There is no clear link between arresting people and having them not repeat the behavior so we don’t know if it is an active deterrent.

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police response

Front 47

domestic violence:

ii. Ex Wife or Wife had a restraining order against her husband saying that he had to stay 100 yards from the premises. The husband took the three kids from the front of the house. She called the police and they told her to call back at 10. She calls back at 10 and they say call back at 12. She calls at 12 and she ends up going to the station. He ends up killing the three daughters and shooting at the police which he was ended up being killed over. Since he shot in the police station. Wife is suing under a constitutional violation and making a case under the due process clause. Court said, that shall does not mean shall and there have been customs where it was not mandatory to arrest, and that warrants do not mean mandatory arrest. Town of Castle Rock pg. 336.

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police response case law

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domestic violence:

counseling, diversion, sending the battered to treatment.

Back 48

what is the role of social serices

Front 49

domestic violence:

i. Mandatory arrest only take you so far and you need to prosecute the cases.

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prosecution

Front 50

domestic violence:

Having evidence, since there will be a lack of evidence. Victim not showing up and does not want to testify (reasons can be that she loves the guy still or visa versa).

Back 50

Prosecution:

What is hte problem with prosecuting these cases

Front 51

domestic violence:

bruising, prior abuse is not allowed in, neighbors, pictures, and furniture broken. Condition of the premises, medical testimony.

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prosecution:

what kind of evidence there mght be if the witness does not testify

Front 52

Divorce:

most divorce occurs relatively early in the marriage, around year 6. Divorce is big business for lawyers and there is billions of dollars in legal fees. It might be unique in terms of people’s involvement without the legal system, most people do not have legal representation when they go through the system. Divorce was not historically available from the courts, had to get approval from a legislature. 20th century was based on a fault system, by 1985 there was the no fault divorce system. Today every state has some form of no fault divorce available to its residents. Most of the states still have fault ground on the books and they are still used in certain situations cause they can affect spousal support and custody matters. The other reason to know about fault based divorce is because there is a renewed call for fault based divorce.

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Divorce Introduction

Front 53

Divorce:

premise of a fault based system is that you have to come to court with clean hands and if both people are not at fault then no divorce, has to be one person at fault and one innocent to get a divorce.

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Fault Based Divorce

Front 54

Divorce:

1. Cruelty:
2. Bodily harm:
3. Emotional harm:
4. Adultery: More then half the states still have this on the books
5. Desertion/Abandonment: have to leave the home for some specified period of time, around a year, without an intent to stay in the relationship.
6. Constructive Desertion: stop having sex with them, and this is a ground for divorce.

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Grounds for Fault Based Divorce

Front 55

Divorce:

1. Recrimination: this is the principle that a spouse that is bringing the divorce does not have clean hands but is also in fault.
a. Comparative Rectitude: most courts will use this to compare who was worse.
2. Connivance: Defense was that the plaintiff originally consented to let the other party have the affair.
3. Collusion: people wanted to get divorce so they make it look like they wanted them to commit adultery. People perjuring themselves in order to get divorce.
4. Condemnation: you forgave the person and resumed marital relations after you knew of the offense.
5. Insanity: Traditionally as a defense, so that someone can be there to help the mentally ill.

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Defense to Fault Based Divorce

Front 56

Divorce:

this is the principle that a spouse that is bringing the divorce does not have clean hands but is also in fault.
a. Comparative Rectitude: most courts will use this to compare who was worse.

Back 56

Fault Based Divorce: Defenses:

Recrimination

Front 57

Divorce:

Defense was that the plaintiff originally consented to let the other party have the affair.

Back 57

Fault based divorce defenses:

connivance

Front 58

Divorce:

people wanted to get divorce so they make it look like they wanted them to commit adultery. People perjuring themselves in order to get divorce.

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Fault Based Divorce defenses:

collusion

Front 59

Divorce:

you forgave the person and resumed marital relations after you knew of the offense.

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Fault Based Divorce Defense:

Condemnation

Front 60

Divorce:

Traditionally as a defense, so that someone can be there to help the mentally ill.

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Fault based divorce defenses:

insanity

Front 61

no fault divorce:

a. No Fault had a family court with specially trained judges who, would provide counseling and look at whether this marriage could be saved or not. The problem in fault based divorce is that there can be one incident of fault and that person can destroy the whole marriage. So they tried to distinguish between those that were hopeless and those that can be saved.

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Development

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no fault divorce:

Irreconcilable differences leading to the immediate breakdown of the marriage.

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development: standard for no fault divorce

Front 63

no fault divorce:

represent the most recent thrust of the movement to undo the excesses of the no-fault revolution. Terms resemble a prenup: “to love, honor, and care for one another as husband and wife for the rest of our lives.

Back 63

covenant marriage law

Front 64

no fault divorce:

: in there states, which requires a commitment to counseling if there are problems to marriage, then there is pre marital counseling, and cannot get a divorce unless there is a separation for many years or if you can show fault.

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covenant marriage

Front 65

no fault divorce:

i. Initially, the couple must have received premarital counseling focused on covenant marriage’s emphasis on lifelong unions and on the provisions of the statute itself
ii. Counseling facet of the covenant marriage statute involves the couple’s expressed commitment to avail themselves of counseling in the event of problems during marriage.

Back 65

covenant marriage:

two different counseling requirements

Front 66

no fault divorce:

a. They were married for 16 years and the wife filed for divorce and then filed a petition to state a claim for emotional harm from sexual acts. Issue is whether they can allow a claim for IIED in the context of a divorce. The court says that it will allow a claim for IIED. Rule: An action for intentional infliction of emotional distress may be joined with a divorce suit. Twyman

Back 66

tort claims in divorce case law

Front 67

no fault divorce:

have to show that the defendant acted (1) intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused the plaintiff emotional distress, and (4) the emotional distress suffered by the plaintiff was severe.

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tort claims in divorce case law:

IIED

Front 68

property:

In California and hand full of other states they follow a community property system which is a 50/50 division of property during the marriage. Common law states use equitable division, this is more and more like community property, but it allows the court a lot more discretion in terms of deciding what property is available to divide and deciding the split. Refers to the tangible assets of the property.

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property division

Front 69

alimony:

future payments, unlike property settlement it is taxable as income to the recipient and deductible to the payor. When do we award alimony. The starting point for alimony is ability to pay, if the spouse does not make enough then it is unlikely to see an award. Do we refer to actual income or earning capacity, the starting point is usually actual income.

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Alimony

Front 70

Alimony:

If there is evidence that a party is purposely reducing income to reduce paying support then they will be liable for earning capacity. This is also true for child support. The problem comes in if you don’t have evidence of shirking. Courts are more likely to use earning capacity for child support then spousal support.

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shirking

Front 71

alimony:

Historically it grew out of the husband’s obligation, women’s inability to hold property in there own right.

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beyond the ability to pay

Front 72

alimony:

i. Definition: Party at fault breached the marital contract and it is more appropriate for them to pay. In states that are true no fault states then typically we don’t see this as one of the options. Notion is that you will award alimony to the wronged spouse.

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fault

Front 73

alimony:

i. Definition: The spouse would be entitled to support at a level to stay off of welfare. In theory the alimony should end only when the need ends. This was not related to the length of marriage.

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need

Front 74

alimony:

ii. Facts: Wife Claims: that she is disabled and she can no longer support herself by her own means. The court does a balancing of factors. Second is the larger question about who’s obligation it is to support the spouse, ex or society. The court said that at some point the responsibility is no longer the ex spouses and it is for society to support the ex. The third point the court made is the duration of the support in correlation with the length of the marriage. They were married for 7 months and he paid for 54 months. In Re Wilson

Back 74

Need case law

Front 75

Alimony:

i. Definition: trying to provide alimony in sufficient amount and time, that the needy spouse can get back on his or her feet. The idea is that you will only get alimony for that point.
1. The problem with this approach is that it is not really clear what the end point is. Is the end point need or is the end point status.. Status - the standard of living that you enjoyed while the marriage was ongoing. The traditional view was the status as the end point of rehabilitation and it is still the accepted view when we deal with lengthy marriages. For shorter marriages the courts have expected employability. Benefits: It encourages the spouse to do something with there life.

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Rehabilitation

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alimony:

i. Definition: If you marry a millionaire you are entitled to live like one. Under this view property would have been divided and alimony rewarded without the regard to length of marriage. The spousal support should terminate only when the spouse is able to get back to the status that they had during the marriage. Talking about standard of living during the marriage. Today the length of the marriage is critical to determine whether you will get an award on status
1. Problems: can be appropriate under certain circumstances, like when they are married for 30 years, but can be open to problems in that the gold digger syndrome can come from this status.

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status

Front 77

alimony:

ii. Facts: She is a guidance counselor and he is a lawyer making over six figures and there is a disagreement about alimony. They were married 20 years. He is disputing the equalization of income v. need. He is arguing in the privacy of the need principle and that she can support herself and doesn’t need this. Court Says: the court feels that her needs should not be the defining factor. The best that you can argue for is the standard of living during the marriage. Clapp Pg. 734

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status case law

Front 78

alimony:
i. Definition: this reflects the idea that spouses pull there efforts from mutual benefits from the marriage, and that each spouse contributes. Under this theory alimony should end only when the payment has been completed. You in a sense of earned some amount of money from the contribution from the marriage and only when that earned shared has been paid off then alimony will end. Under contribution under theory re-marriage would not be a basis for terminating the award.

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contribution

Front 79

alimony:

market value of the services that were provided. The idea is that we want to compensate the person for what they have contributed and we measure the market value of services.

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contribution: different approahces on how we value contribution:

restituion

Front 80

alimony:

we are going to sacrifice you for the opportunities that you gave up during the marriage. What the spouse would have earned if she would have stayed in the paid market. Problem is that it is really speculative.
i. American Law Institute (ALI): how do they deal with this? They work in the number of years that you were married in figuring out how much you would have been awarded. They are going to presume that there was opportunities lost here and they will not actually try to calculate what was actually lost. The downside with this approach is that it will be unfair and may overcompensate someone that wouldn’t do much in the workplace

Back 80

contribution: how do we value the contribution:

compensation for opportunities that have been forgone

Front 81

alimony:

we are not looking at what you gave up, but looking at how your spouse was benefited. Enhanced earning capacity, try to measure the benefit to the wealthier spouse from the your contribution.

Back 81

compensation: how do we value the contribution:

return on investment

Front 82

alimony:

i. Marriage is a partnership and that both spouse contribute to the marriage and there should be contribution for that. There is a slight difference in prospective between contribution and this. We are not giving the spouse support, but we are recognizing that the relationship itself creates expectations, entitlement, and reliance’s. Under this theory they would award alimony for some period of time during the future attempting to share income and minimize the disparity between the wealthier spouse and less wealthy spouse.

Back 82

partnership

Front 83

alimony:

5 Basic Principles Court Uses to Govern the Award of Spousal Support.

Back 83

1. Fault
2. Need
3. Rehabilitation
4. Status
5. Contriubtion
6. Parntership

Front 84

Alimony:

a. California a marriage under 10 years is short and the duration is half the marriage. Maine 10-20 years then it is half the length, under 10 years it is rehabilitation, and over 20 years it is the court discretion.

Back 84

Modification of Alimony Awards

Front 85

Alimony:

Generally the same factors that determine the original award are going to govern the modification of the award. The moving party has the burden of proof to show the substantially changed circumstances (this is the test).

Back 85

Modification of Alimony Awards:

Modification

Front 86

Alimony:

: only modified if it is unconscionable

Back 86

Modification of Alimony Awards:

Substantially Changed Circumstances

Front 87

Alimony:

d. Facts: When Mr. Graham (d) salary increased dramatically at about the time their divorce decree was to become final, this action ensued after negotiations between the parties for increased support payments broke down. Court Says: that there are some circumstances where the increase in income can be substantially changed circumstances, like if there was efforts in the marriage that resulted in that increase. Rule: An increase in the noncustodial parent’s ability to pay can, by itself, constitute a material change in circumstances sufficient to justify an increase in support. Graham

Back 87

Modification of Alimony Awards Case Law

Front 88

Alimony:

e. Facts: When the trial court failed to apply the provisions of a modification agreement entered into by the parties, the husband (p) appealed. Rule: once the initial issue of cohabitation is established, a court must enforce the terms of a modification agreement entered into by the parties and approved by the court. An agreement can deviate from what the statute provides. Discanio

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Modification of Alimony Awards Case law

Front 89

Child Support:
Purpose of the support order is to advance the welfare of the child. Both parents have the obligation to support the child. The ceiling for child support is ability to pay. The same issue that we talk about with spousal support comes with child support.

Back 89

General Principles

Front 90

Child Support:

a. Rule: if there is evidence of shirking then for sure we will be looking at earning capacity. No evidence of shirking then we will be looking at it at a case by case basis cause courts can’t agree.
b. The focus on this issue is typically on the non custodial parent. Should a custodial parent be penalized for failing to earn up to his or her earning capacity.

Back 90

Ability to Pay

Front 91

Child Support:

form a rebuttable presumption for the amount of child support a child is entitled to. It was made to standardize the amount given.

Back 91

Need and Status:

State Guidelines

Front 92

Child Support:

i. Both parents should share legal responsibility for supporting their children. Share proportionally in the obligation.
ii. Basic needs of the parents should be taken into account, but the main focus is the child.
iii. Childs support must cover a child’s basic needs as a first priority.
iv. There is no marital discrimination in terms of a Childs right to support.
v. Guidelines should not affect is parents want to get married again, should not affect there work, or economic dissentives to work.
vi. Gender neutral.
vii. Should take into account who has custody of the child most of the time. Should encourage the involvement in both parents in child rearing.
viii. Each child has equal right to share in parent’s income.

Back 92

Need and Status:

The federal law set forth 8 advisory principles

Front 93

Child Support:

Both parents should be proportionally responsible for providing for the child. Social scientist have created charts and data on how much parents in different income brackets spend on there kids. We want to try to replicate what the child would have had if the marriage would of stayed intact. So the basic child support obligation is computed based on the combined income of both parents, which is pro rated in proportion to each parent’s income. California is an income shares jurisdiction.

Back 93

Need and Status: Formulas:

Income Shares Approach

Front 94

child support:

Both parents should be proportionally responsible for providing for the child. Social scientist have created charts and data on how much parents in different income brackets spend on there kids. We want to try to replicate what the child would have had if the marriage would of stayed intact. So the basic child support obligation is computed based on the combined income of both parents, which is pro rated in proportion to each parent’s income. California is an income shares jurisdiction.

Back 94

Need and STatus:formulas:

income shares approach

Front 95

child support:

: The amount here varies and it is not going to be straight proportional but we are going to take into account how much time each parent spends with the child

Back 95

Need and Status: formulas:

California incorporated a time share into the formula

Front 96

Child Support:

iii. Facts: He is visiting more so he wants a decrease and she wants modification based on the guideline support. The trial court wanted him to pay a percentage of his bonuses, which is anything over the 10k. Rule: You can’t have an income shares approach constantly fluctuating which is not consistent with the guidelines. Can have an approaches deviating from the guidelines if the court provides some types of basis on why they are deviating from the guidelines in writing. Hall Case

Back 96

Need and Status: Formulas case law

Front 97

Child Support:

iv. Two doctors who were married, and got divorced right after the baby was born. The problem in this case is that the father was suppose to pay 800 dollars per month, and 20% of his income into a trust. Issue: whether the 20% is excessive since both parents make enough money for the child needs. Because of status, just because parents make a lot of money doesn’t mean that they will lavish it all on the child. Here they didn’t. The needs of the child are met here. They said that the money could not be put in a trust. But in California a parent can spend the money any way that they want. In Re Bush

Back 97

Need and Status: Formulas case law

Front 98

Child Support:

Court typically can only order child support till the age of majority and can extend to 19 if the child is still in high school and typically after that they don’t have jurisdiction. Most courts will enforce an agreement among the parents to provide a post majority support. It will be considered as a separate contract.

Back 98

Guidelines:

Post majority education support

Front 99

Child Support:

ii. Father was ordered to pay for his three children, he then filed a petition asking the court to relieve him of support for two of his children in college. There is a split on authority on the constitutionality of whether you can order post majority support if it was not agreed upon. California will not order this, but will enforce it if you had an agreement. Curtis v. Kline

Back 99

Guidelines: Post majority education support case law

Front 100

child support:

iii. If parent and child don’t get along, but ordered a post majority child support for college: pay until she gets kicked out. Courts are split on this.
iv. When you get divorced the state is in your life whereas when you are not divorced the state is not in your life. In an intact family the parents have complete control.

Back 100

Guidlines: Post majority education support

Front 101

Child Support:

a substantial change in circumstances. Shirking still applicable here.
b. Common basis for seeking modification is change in income.

Back 101

Modification Test

Front 102

Child Support:

i. Change in income is enough, at least 10-15% then you can go in and request a modification.
ii. Ability to pay.
iii. Subsequent Families
1. This will open the door to looking on the new spouses income.

Back 102

Modification;

Whether there has been a substantial change in circumstances

Front 103

child support:

d. Facts: After the ainsworths divorced and Reginald remarried, Julie sought an increase of the awarded child support, but the trial court reduced the amount based on Reginald’s second family expenses. Rule: Expenses for a second family may enter into the determination of a child support for the preexisting family, even where the second family consists of a spouse and stepchild. If we are going to deviate from the formula we need tot calculate the income of the new spouse in the marriage. Don’t’ want to provide disincentives to re-marry. Ainsworth

Back 103

modification case law

Front 104

child support:

Non Custodial Parent believes that the custodial parent will use it on themselves rather then the child. Interference with visitation are not dealt with by courts so people will take it in there own hands by not paying. The parent is in jail and can’t pay. Cost of living is to high and can’t afford the amount of child support they are paying. A lot of unresolved anger between the couples.
ii. Even if the father does not want the child while the mother is pregnant he is still on the hook for child support cause that it his child. The theory behind this is that people have a moral obligation to support there child, and it is about what is best for the child.

Back 104

Child support enforcement: Why aren't paretns paying

Front 105

child support:

i. The state (p) appealed from a decision denying review of a decision of the court of appeals, which upheld Feiock’s (d) challenge to the constitutionality of a state statute which required him to carry the burden of proving his inability to pay child support in order to avoid a contempt conviction for failure to pay child support. Rule: Where, in connection with contempt proceedings for failure to pay child support, a determinate sentence of imprisonment is imposed, it will be deemed to be civil in nature if the sentence imposed contains a purge clause. Hicks

Back 105

child support enforcement:

contempt

Front 106

child support:

1. Punitive – jail time. Money paid to the court.
2. Remedial – Can purge. The idea is that you are going to be in jail until you do what you are suppose to do, or pay till you satisfy the obligation. Money paid to the ex. Phrase to remember - “The person is in contempt holds the key to there own cell”.

Back 106

child support enforcement: contempt:

punitive is designed to punish and remedial is getting someone to do what they are suppose to do.

Front 107

Child Support:

iii. Father had 9 kids and was not support any of them, and there was numerous orders from the court to pay. The court establishes a rationale basis review. The court established he was on probation and that he could no longer have children until he paid his child support. His claim is that procreation is a fundamental right and should be strict scrutiny. The court says that they are applying rational basis review because they are not revoking his right to procreate but instead suspending that right and also he is not awarded strict scrutiny because he is a convicted person. Wisconsin

Back 107

Child Support Enforcement:

Contempt case law

Front 108

Child Support:

Deny professional licenses to spouses who are behind on there support. This can be your law license, medical license, and any profession that requires a professional license.

Back 108

child support enforcement:

other remedies

Front 109

child support:

ii. All the states have allowed to suspend your driver’s license if you have not paid your support. These are self starting mechanicism, cause it doesn’t require that the ex go into the court or the state to provide a contempt proceeding.

Back 109

other remedies

Front 110

child support:

iii. This case was about withholding someone’s passport, even though there is a constitutional right to travel. This is rational basis review to give the court plenary power to restrict it. Eunique

Back 110

other remedies case law

Front 111

child custody:

a. In California there is mandatory mediation for custody before you get to see a judge.

Back 111

custody

Front 112

child custody:

1. She is arguing that there should be a maternal preference. Tender years presumption. The court says: that the son wanted to go with the father. In addition the tender years presumption they have found that this is an unconststitutional violation of equal protection. Here it was intermediate scrutiny. Here there was a significant state interest, finding a placement for the well being of the child is good reasons. The problem is that it is not substantially related, so under this presumption those fathers will be precluded from making a case for custody. Procedure by presumption cannot substitute for an actual inquire into what is in the best interest of the child, and certainly not one based on gender. Pusey

Back 112

Custody: Factors:

Gender

Front 113

child custody:

a. The identity of the primary caretaker during the marriage
b. Identity of the parent with greater flexibility to provide personal care for the child
c. The identity of the parent with whom the child has spent most of his or her time pending custody determination if that period has been lengthy.
d. Stability of the Environment.
e. Who the child wants to go with.

Back 113

custody: factors: gender:

what should the court consider

Front 114

child custody:

3. There is no tender years presumption anymore, and I do believe that we just look at the Stability of the Environment. Gender does not matter anymore.

Back 114

custody: factors: gender

Front 115

child custody:

1. McCoy (d) contended the trial court erred in failing to favor her as the mother in awarding custody of her child to Garska (p) the father. Mother raised the child during the first year without any help from father. The trial court provided him custody cause they said he was smarter but he wasn’t the primary care taker. Rule: A child’s best interest is served by awarding custody to the primary caretaker parent regardless of sex. Garska

Back 115

custody: factors:

primary care taker case law

Front 116

child custody:

Laundry list of day to day life for the caretaking parent, who is putting the kid to bed, bath, taking the kid to school, taking him to doctor, etc. Obviously if there isn’t one primary caretaker then this factor will not kick in and we will look at the other factors.

Back 116

primary caretaker definition

Front 117

child custody;

this is an overriding policy to try to avoid litigating these kind of matters. If you have a nice clear legal rule then we will knock out a nice big chunk of the cases and they won’t be litigated which will be in the best interest of the child. Danger of using threat of custody litigation as a way of forcing the other spouse on property division and the primary caretaker will likely be more invested and less willing to risk that role and give up property.

Back 117

custody: factors: primary care takers

reasons for adoption this is a presumption

Front 118

Child Custody:

1. Young v. Hector: Facts: When the more financially secure parent was awarded primary custody of the children, the other parent appealed. Rule: A trial court’s decision as to which aprent should be awarded primary residential custod of the children should attempt to preserve and continue the caretaking roles that the parties have established. Standard of Review: We are looking to see if the trail court abused the discretion, don’t look at facts. Court Holds: That the custody will remain with the mother (working person), because she was the primary caretaker, he was home with a housekeeper who watched the kids and he was off on his treasure hunt.

Back 118

Best Interest of The Child: Factors:

Work Case Law

Front 119

Child Custody:

shows something about the stability of each, but it is not a referendum of who is the wealthier parent, and the child doesn’t always go with the wealthier parent.

Back 119

Best Interest of the Child: Factors:

Work - Employment

Front 120

Child Custody:

to try and get away from this win lose mentality that some people feel that is in inherent in the custodial parent and some parent that just has visitation.

Back 120

Best Interest of the Child: Factors:

Work Parenting Plan

Front 121

Child Custody:

This and parent plan are here to rather then designate as one or the other, just parents in custody basically.

Back 121

Best Interest of the Child: FActors:

Work Custodial Responsibility

Front 122

Child Custody:

has been the goal of many states, but other states it is just one factor to be considered here. Do all the factors.

Back 122

Best Interest of hte Child: Factors:

Work - Primary caretaker

Front 123

Child Custody:

3. Stability of the Environment, Quality of Care and Parent Chiild Reltionship, and Best Person to Nurture the Child. Are Factors that We should Look At rather then Gender.

Back 123

Best Interest of the Child: Factors to Look At

Front 124

Child Custody:

that homosexuality was per se unfitness. So if a parent is gay or lesbian they will not get custody. Reasons are that the gay parent will try to convert the child or molest the child, which has no basis in reality. Also social stigmas, we are not saying it is bad but society will say it is bad.

Back 124

Best Interest of the Child: Factors:

Sexuality - Traditional Approach

Front 125

Child Custody:

Today’s approach. You can consider sexuality if you can show that the child was exposed to it and there was adverse impact on the child. Looking to see if the child is going to be struggling emotional, or behavioral problems to show adverse impact.

Back 125

Best Interest of the Child: Factors:

Sexuality Nexus Approach

Front 126

Child Custody:

1. Carney Case: Facts: William Carney (p) contended that the trial court unconstitutionality deprived him of custody of his children based upon his physical handicap. He has a physical handicap because he was in an accident and became a quadropolegic. Rule: a physical handicap that affects a parent’s ability to participate with his children in purely physical activitieis may not by itesl be used to deny custody. Court Held: can’t consider a disability as prima facia evidence that a parent is unfit to care for the child. Have to look at the parent child relationship, the stability of the environment, etc. Here she had no relationship with any of those kids, so this case was not even close.

Back 126

Best Interest of the Child: Factors

Health Case law

Front 127

Child Custody:

Initial custody decision and both parents have been involved, do we consider disability as a tie breaker? No we don’t. We will look at the facts, the true capabilities of the person, and the relationship between the parent and child.

Back 127

Best Interest of the Child: Factors:

Health - Both Parents Involved

Front 128

Child Custody:

v. Palmer v. Sidoti: The trial court terminated Palmore’s (d) custody o her daughter becaue, after being awarded custody, Palmore (d) had remairred a man of a different race, which was not in the views of society and child will be teased by society. Rule: A natural mother cannot be divested of the custody of her child merely because of her remarriage to a person of a different race.Supreme Court Held: WE cant deprive someone of custody becaue of private biases.

Back 128

Best Interest of the Child:

Race Case Law

Front 129

Child Custody:

vi. Jones v. Jones (interracial marriage nad divorce, custody): The father was native American and the mother was White. Here they had a family farm and there was this family bond in the native American lifestyle and the father got custody. The court could consider the racial background of the parents in society. It would have been ok to consider race in this interracial marriage.

Back 129

Best Interest of the Child:

Race Case Law

Front 130

Child Custody:

California has a rebuttable presumption that the batterer will not get custody.

Back 130

Best Interst of the child:

domestic violence

Front 131

Child Custody:

: has to be a Substnatial Harm and is likely, imminent or happening.

Back 131

Best Interest of the Child:

Religion: Standard We Use

Front 132

Child Custody:

ii. Kendal v. Kendal: Facts: Catholic father and jewish mother. When Mr. Kendall (d) became a member of a fundamentalist Christian Church, his marriage deteriotated, and Mrs. Kendall (p), an orthodox jew, filed for divorce and sought to lijmit the children’s exposure to their father’s religtion. Here the father told the children that they were going to burn in hell because of there religion, and served them bacon and eggs nad didn’t let them practice there religion. Rule: Whe ndemonstrable evidecen of SUBSTANTIAL HARM to the children has been found, a divorce judgment limiting the children’s exposure to religious indoctrination does not burden the parent’s right to practice religion under the Free Exercise clauses of the state and federal Constitution.

Back 132

Best Interest of the Child:

Religion Case Law

Front 133

Child Custody:

The court is not going to restrict the parents abilities to expose the children of there religion unless they meet the standard of substantial harm to the children. The typical rule is that the custodial parent has the right to determine the childs religion, but this doesn’t mean that the non custodial parent could expose them of a different religion.

Back 133

Best Interest of the Child:

Religion: Custodial Parent v. Non Custodial Parent

Front 134

Child Custody:

: Most courts are not going to enfoce, not even in writing the agreement on the religious upbringing of their kids.

Back 134

Best Interest of the Child:

Religion: Parents Agree Before Child Birth on a Religion