FAMILY LAW OUTLINE

Professor Zug; Fall 2009

Lindsey Sink
I.

What is a Family?
A. Adult-Child Relationships
i. Doctrine of Exclusivity legal families have (1) two parents and (2)
adults stand in relation to children either as full legal parents or as
strangers
ii. Individuals should be required to show relationships based on the
acts they perform and give privileges and rights based on those
actions no assumptions should be made regarding an individuals
part in a family
iii. Caregivers should have mutual relationship with those they are
caring for and should choose to do the work with the object of
providing for their needs
B. Marriage & Divorce is Marriage Disappearing?
i. There were approx. 2,230,000 marriages in 2005 down from
2,279,000 the previous year, despite a population increase
ii. Percentage of population that is married: 59%
iii. Technically there is a 5% chance that you wont get married
iv. People today are getting married much later
1. Ave. age for women: 25
2. Ave. age for men: 27
v. The ratio of marriage to divorce is 2 to 1
1. Everyone knows the statistics, but many people think their
own personal likelihood is different
2. Education of state residents affects states divorce rate
3. The poorer you are, the more likely you are to get a divorce
4. Children of broken marriages are more unlikely to enter
marriages that will last
C. Children
i. Children living with only one parents has increased almost 30%
since 1960
ii. Fatherless homes cause huge problems for children (runaways,
suicides, high school dropouts, etc.)
D. Cases:

Village of Belle Terre v. Boraas (1974)

Facts: The Dickmans are owners of a house in the village and leased it to Truman.
Boraas became a colessee, then Parish and three others moved in. They are all
students at the nearby university and none are related. The village served the
Dickmans with an order to remedy violations of the ordinance, which states that
use is restricted to one-family dwellings. The word family under the ordinance is
defined as one or more persons related by blood, adoption, or marriage, living
and cooking together as a single housekeeping unit.
Issue: Whether the ordinance is unconstitutional.
Holding: No. The ordinance is a legitimate guideline under the police power.
Reasoning: The court finds none of the grounds the ordinance is challenged on to
be justified. The court states that the exercise of discretion in deciding what
constitutes a family is a legislative, not judicial, function. The court acknowledges
that the types of housing that are excluded under the ordinance pose unique
urban problems such as traffic, crowding, and parking that the village could
validly seek to eliminate.

Dissent: (Marshall) Justice Marshall agreed that zoning could be used to restrict
uncontrolled growth. However, the ordinance at issue impermissibly interfered
with the students First Amendment right to freedom of association. The right to
establish a home and the right to privacy are entwined with freedom of
association. Marshall felt the ordinance reached beyond the mere regulation of
population density, which would be permissible, and into a regulation of the way
people choose to associate. The village has, in effect, acted to fence out those
individuals whose choice of lifestyle differs from that of its current residents.
[Dissent applies strict scrutiny, argues that this zoning violates fundamental
rights of privacy and association guaranteed by the 1st and 14th Amendments.]
Notes:
o Columbia has a similar ordinance for Shandon a family cannot be
more than 3 unrelated people
o The majority opinion is the rational basis argument
o The doctrine of substantive due process: the CXN provides protection
of fundamental rights and liberties.
o Just because something is a fundamental right doesnt mean we cant
regulate it we just have to meet strict scrutiny rather than rational
basis (under which most anything passes).
o The CXN is only violated by an ordinance if:
It is unreasonable;
It doesnt bear a rational relationship to a legitimate state
objective.
Uses rational basis test.not strict scrutiny

Penobscot Area Housing Development Corp. v. City of Brewer (1981)

Facts: Private nonprofit provides housing for retarded citizens. The Corp. applied
to the City of Brewer, Maine for an occupancy certificate, describing the proposed
use as a group home for six adults. The city is zoned for low density single family
residential use under the citys zoning ordinance. The city denied the occupancy
permit, stating that this group is not a single family and therefore does not meet
the zoning requirements. Plaintiff argues that the residents have a domestic
bond [flexible] based on the relationships they form as they live together.
Issue: Does this non-traditional boarding house style family satisfy the definition
of domestic bond?
Holding: No.
Reasoning: The Court states that the concept of domestic bond implies the
existence of a traditional family-like structure of household authority. Since the
supervisors at the home will only serve on a rotating basis, a central figure of
authority residing on the premises similar to a parent in a traditional family
setting is clearly absent in the group home structure. The Court notes that the
bond among the residents is temporary and therefore more resembles the
relationship between club or fraternity members, whose exclusion from single
family districts has been upheld in other jurisdictions.
Notes:
o Ct. says a family requires a permanent authority figure and this is even
more important when people arent related by blood
This home had a live-in individual, but that person was rotated in
and out, which was not enough
o Permanence court says doing your own cooking and cleaning is evidence
of this
o Lack of cohesiveness is the courts strongest argument residents are
constantly moving in and out at someone elses discretion

Court believes that, if the problem of locating group homes is pervasive in

this state, legislative, not judicial, action may be most appropriate [but
Zug believes its very unlikely that these kinds of people would be able to
get someone to respond to this issue]

Borough of Glassboro v. Vallorosi (NJ, 1990)

Facts: The Borough has a restrictive zoning ordinance that limits residence on
districts to stable and permanent single housekeeping units that constitute
either a traditional family unit or its functional equivalent. Ten students live
together in a house here.
Issue: Whether this group of 10 unrelated college students constitutes a family
within the definition of a restrictive zoning ordinance?
Holding: Yes.
Reasoning: The Court concludes that the students have a relationship that
indicates stability and permanency, and can be described as the functional
equivalent of a family. The court prefers to equate the term single family with a
single housekeeping unit. [this case is examined under the NJ CXN]
Notes:
o The US CXN sets out the minimum level of protection; BUT states can set
out their own levels of protection differently so a CXNal issue on the
federal level may not be a CXNal issues on a state level
o Zug: This is a very fact-specific case; big differences between this and
Penobscot is the difference in the CXNal provisions
Moore v. City of East Cleveland (1977)
Facts: A grandmother who supports 2 of her grandchildren, who are cousins
instead of brothers, was found to violate an East Cleveland zoning ordinance that
recognizes a family as only a few categories of related individuals.
o Moore argues that she has a CXNal right to privacy, family unity, choosing
who she wants to live with in her family
Issue: Is it constitutional for an ordinance to forbid individuals to live in certain
narrowly defined family groups?
Holding: No. There is a constitutional right to family unity among unrelated
individuals.
Reasoning: The Court believes that the city seeks to justify the ordinance as a
means of solving many problems such as overcrowding, but feels that the
ordinance does not serve these legitimate goals well.
Concurrence: The line drawn by this ordinance displays a depressing insensitivity
toward the economic and emotional needs of a very large part of our society.
Dissent: Feels that Belle Terre settled this issue. Who you live with is not a
constitutionally protected right.
o Rehnquist: What you are asking here is whether you have a CXNal right to
share some rooms.
Notes:
o In order to conform with the ordinance, the other grandchild would
probably have to go into the system
o This case turns out differently than Belle Terre according to the majority
because this case involves related individuals, while Belle Terre involves
unrelated individuals no fundamental right for unrelated people to live
together
o History: court discusses nuclear families as old traditional definition of
family
o ** This case is the high water mark for family unity as far as the right to

II.

family unity has EVER gone. Always use this case in immigration
arguments.
Hypo: if the parents are illegal and the kids are citizens, can the parents be
deported when there is a fundamental right for families to live together? Yes.
There are multiple constitutional rights going on here. Families of illegal
immigrants can be split up they have no right to family unity because they can
take their kids back with them and the kids can return when they want to.
Fundamental rights implicate a higher level of review. The court in Moore used a
heightened level of review, but not necessarily strict scrutiny. This is typical the
Supreme Court has repeatedly side-stepped using strict scrutiny in family rights
cases, but they do use heightened scrutiny. It is somewhere in between strict
scrutiny and intermediate scrutiny. They dont want to recognize the right too
robustly because they want to preserve their ability to regulate as needed.
One overriding conclusion: the traditional family (related by marriage, blood,
or adoption) is afforded significant constitutional protection, whereas the rights of
nontraditional families are more uncertain and more subject to infringement

The Fundamental Right to Marry

A. Historic Reasons for Marriage:
i. Money
ii. Family connections
iii. Religion
iv. Sex
1. In SC, all sex outside marriage is illegal
v. Legitimate children
vi. Freedom for women (?) from father
B. The Benefits of Marriage and Incest Restrictions
C. Statutes:
i. SC Code 1976 16-15-80: Fornication is the living together and
carnal intercourse with each other or habitual carnal intercourse
with each other without living together of a man and woman, both
being unmarried.
ii. 16-15-60: Punishment for fornication or adultery [fine,
imprisonment for less than one year, or both]
D. Lawrence v. Texas fornication and adultery are harmful because marriage
is the cornerstone of society
E. Current Benefits of Marriage:
i. Inheritance benefits
ii. Right to bring wrongful death/loss of consortium claims
iii. Survivor benefits
iv. Spousal benefits of public employees
v. Insurance privileges
vi. Tax benefits
vii. Immigration benefits
viii. Immunity from prosecution for harboring family fugitive
ix. Right to spousal support
x. Hospital visitation and medical rights
xi. Presumption of joint ownership of property and right of survivorship
F. Burdens of Marriage:
i. Higher taxes
ii. Lesser punishments for violence
iii. Spousal support (pay)
iv. Prosecutions for incest, bigamy, adultery

v. Property division
G. Whats wrong with incest?
i. Increased risk of genetic problems
ii. Sexual relations among families member can be exploitative
iii. Its icky!
Baker v. State (1999)
Facts:
Issue: May Vermont exclude same-sex couples from the benefits afforded
heterosexual couples?
Holding: NO. Vermont will allow same-sex marriage.
Reasoning: A marriage license confers upon a couple many benefits and
protections under the law.
Notes:
o The marriage laws transform a private agreement into a source of
significant public benefits and protections
Braschi v. Stahl Associates Company (NY, 1989)
Facts: Gay couple lived together in rented apartment for ten years. After one
partner died, the owner told the other that he was a mere licensee with no right
to occupy the apt since the decedent was the tenant of record. Lone partner
argues that he is a member of the decedents family within the meaning of the
New York City Rent and Eviction Regulations, and seeks a permanent injunction
from eviction. The Regulation states that when a tenant dies, spouses or other
family members who have been living with the tenant cannot be kicked out
(doesnt define family).
Issue: Whether Braschi is a family member within the meaning of the regulation,
which would therefore not allow the landlord to dispossess him of the apartment.
Holding: Yes, he is a family member within the meaning of the regulation.
Reasoning: The Court examines the legislative purpose behind enacting the rentcontrol laws as a whole, and determines that the legislature did not intend to only
protect from eviction those entitled to inherit under the laws of intestacy. We
conclude that the term family, as used in [the statute], should not be rigidly
restricted to those people who have formalized their relationship by obtaining, for
instance, a marriage certificate or an adoption order.
Notes:
o Zug: marriage insulates families from this level of scrutiny if youre
married, you dont have to be a traditional family if youre not, then you
have to demonstrate that you are.
o Court defines family in the context of eviction: Two adult lifetime partners
whose relationship is long term and characterized by an emotional and
financial commitment and interdependence.
o Non-eviction protection should be based upon an objective examination of
the relationship of the parties, including:
The exclusivity and longevity of the relationship;
The level of emotional and financial commitment;
The manner in which the parties have conducted their everyday
lives and held themselves out to society; and
The reliance placed upon one another for daily family services.
Note: Common law marriage in SC, you dont even have to hold yourselves out to
be married. If your neighbors even think youre married, you could be.

III.

Restrictions on Marriage
A. Incest
i. Purely statutory crime; most states have a criminal incest statute
ii. Step-siblings CAN get married in SC
iii. In SC, incestuous relationships are voidable, not void. (Disregarding
the criminality of it), it is up to the spouses to choose to void the
marriage.
1. Ex: in SC, a same-sex marriage is void. Period.
2. Voidable means that the marriage is valid until its annulled.
It is capable of being affirmed/rejected only by the two
parties.
iv. Under the law, an adopted child is a child for all legal purposes
which would likely outlaw two adopted siblings marrying one
another
1. BUT, one Colorado cases overturned a marriage statute that
forbade marriage between two adopted siblings not related
by blood (1978).
B. The Truth About Cousin Couples (2002 article)
i. There is a slight increased risk of birth defects in children of first
cousins, but it is not significant.
ii. Data shows that there should not be a law that cousins cant marry
iii. 12.5% of genes shared between first cousins
C. Cousins:
i. 26 states allow first cousin marriage
ii. US prohibitions against cousin marriages predate modern genetics
iii. No European country prohibits marriage between first cousins, as
well as Canada and Mexico. The US is the only western country with
cousin marriage restrictions
iv. The frequency of cousin marriages in the US is about 1 in 1000.
v. Children of non-related couples have a 2-3% risk of birth defects, as
opposed to first cousins having a 4-6% risk. First cousins have a
94% chance of having healthy children.

Singh v. Singh (1990)

Facts: Husband and Wife allege that they mistakenly married, believing that they
were not related and now knowing that they are uncle and niece. They seek an
annulment of the marriage. They get remarried again in California when they
realize they are only half niece and half uncle. They appeal to Connecticut to reopen their annulment and recognize their marriage due to the change in status.
Issue: Whether a marriage between related persons (half uncle and half niece) is
incestuous under Connecticuts statues, and therefore void.
Holding: Yes, the marriage is incestuous.
Reasoning: Half relative relations are still incestuous in Connecticut (based on
incest definition in English law). Court places emphasis on history of incest law.
Notes:
o This case involves immigration law the wife needs her marriage
validated in Connecticut so she doesnt get deported.
o Opinion cites Catalano case typically, a marriage is valid when it was
performed validly in another state. Will be recognized in other states. But,
one big exception to that rule is incestuous marriages between persons
so closely related that their marriage was contrary to the strong public
policy of the domicil.
o Court distinguishes Moore case which involved no blood relation (Singhs
are still half-blood relatives)

o
o

Consanguinity relationship of persons of the same lineage/bloodline

Affinity relation by marriage, not blood

Back v. Back (1910) (affinity)

Facts: Man, after divorcing his original wife, marries her daughter, his former stepdaughter. They have 4 kids. His estate is challenging her claim to his estate,
claiming incest because the statute prohibits marrying your wifes daughter.
Issue: May a man validly marry the daughter of his ex-wife?
Holding: Yes once he is validly divorced the relationship of affinity between him
and the step-daughter is terminated and they are legally able to marry.
Reasoning: A man cannot marry his wifes daughter while his wife is living and
undivorced without committing bigamy. However, once the man and woman are
legally divorced, the daughter was no longer the daughter of the man, and their
marriage is valid.
SC Statutes taken from Leviticus
SC Code: 20-1-10: Incest (also general SC marriage statute)
(a) All persons, except mentally incompetent persons and persons whose marriage is
prohibited by this section, may lawfully contract matrimony.
(b) No man shall marry his mother, grandmother, daughter, granddaughter,
stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother,
wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter,
sister's daughter, father's sister, mother's sister, or another man.
(c) No woman shall marry her father, grandfather, son, grandson, stepfather, brother,
grandmother's husband, daughter's husband, granddaughter's husband, husband's
father, husband's grandfather, husband's son, husband's grandson, brother's son,
sister's son, father's brother, mother's brother, or another woman.
SC Code 16-15-20: Criminal Incest: (both affinity and consanguinity)
(a) Any persons who shall have carnal intercourse with each other within the
following degrees of relationship, to wit:
A man with his mother, grandmother, daughter, granddaughter, stepmother,
sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's
grandmother, wife's daughter, wife's granddaughter, brother's daughter,
sister's daughter, father's sister or mother's sister; or
A woman with her father, grandfather, son, grandson, stepfather, brother,
grandmother's husband, daughter's husband, granddaughter's husband,
husband's father, husband's grandfather, husband's son, husband's grandson,
brother's son, sister's son, father's brother or mother's brother
(b) Shall be guilty of incest and shall be punished by a fine of not less than five
hundred dollars or imprisonment not less than one year in the Penitentiary, or both
such fine and imprisonment.
Void marriages: never existed and will never be recognized. In SC, an example is
homosexual marriage.
Categories: same sex, underage, bigamous, permanently mentally incompetent
parties
Anyone can point out the voidness of the marriage (parties, insurance companies,
etc.)
Dont need a legal decree to dissolve it because it never existed
Voidable marriages: recognized unless one of the parties seeks an annulment

Categories: incest, temp insanity (intoxication), fraud, no

cohabitation/consummation
Reasoning: very strong public policy in favor of marriage we will recognize
marriages we might not like until they get to the point where we really disprove of
them.
Only the parties to the marriage can end the marriage by pointing out the
voidability requires a legal decree to dissolve.
Can often be ratified at a later date (consummation/cohabitation)
D. Mental Incapacity/Consent
i. Temporary mental incompetency can be cause for an annulment
1. SC has never issued a case on this issue
ii. Even if the marriages is not entered into in the right state of mind,
the parties can ratify the marriage later.

SC Marriage Procedural Requirements:

1.
SC Code 20-1-210
a. unlawful for any persons to contract matrimony within this State
without first procuring a license
2.
Requirement for Marriage License:
a. 20-1-220: 24 hour waiting period,
i. No marriage license may be issued unless a written application
has been filed . . . at least twenty-four hours before the
issuance of the license
b. 20-1-230: avowed ability to marry (issuance of license)
i. filing of a statement, under oath or affirmation, to the effect
that the persons seeking the contract of matrimony are legally
entitled to marry
E. Age
SC Code Ann 20-1-250; 20-1-100):
1. 20-1-100: Age
A. SC = must be 16 years old (civil and C/L marriage)
i. Any person under the age of sixteen is not capable of entering
into a valid marriage, and all marriages hereinafter entered into by
such persons are void ab initio (from the beginning). A commonlaw marriage hereinafter entered into by a person under the age of
sixteen is void ab initio.
2. 20-1-250: Age (consent)
A. No marriage license if under 16
i. Ages 16 - to - 18 requires parental consent to get married. the
probate judge . . . shall not issue a license for the marriage until
furnished with a sworn affidavit signed by the father, mother, other
relative, or guardian giving consent to the marriage.
Notes:
o Common law marriage is included because couples were trying to escape the age
requirement.
o SC age of consent used to be 14 for women and 16 for men now, due to equal
protection arguments, the age of consent for both sexes is 16 (but if between 1618 need parental consent).
Moe v. Dinkins (1982) (underage marriage)

Facts: Plaintiffs, 15 year old girl and 18 year old guy, have a 1 year old illegitimate
son. They live together as a single-family unit. NY parental consent requirements
state that all minors under the age of 18 must have parental consent to obtain a
marriage license. The parents will not give consent (supposedly want to retain
welfare benefits for her dependent child). Plaintiffs are asking the court to declare
the NY parental consent requirements for marriage unconstitutional. (violation of
14A).
Issue: Whether juveniles have the same constitutional right to marriage as adults.
Holding: No. The state has the power to control the rights of minors to marry. As
long as the regulation has a legitimate state interest (here, to protect minors from
immature and poor decisions), then the statute is constitutional.
Reasoning: (rational basis test) Age is not a permanent restriction, so it isnt a
total bar to marriage because it doesnt completely remove that right. Minors do
not have the same rights to marriage as adults. An age cutoff in general is
appropriate.
Notes:
o Children have fewer CXNal rights because of the importance of the
parental role (fundamental privacy right to act in childs best interest), the
vulnerability of minors, and the inability of minors to make informed
decisions.
o The court states that because marriage and minors have traditionally been
regulated, strict scrutiny will not be used.
Rational basis will be used
Marriage issues do not reach strict scrutiny
o Court notes that every state has age requirements for marriage, and that
parental consent requirement ensures that at least one mature person is
involved in the decision.
o Zug: because this is an old case, they treat men and women differently
regarding the age requirement obviously not the case anymore in NY
o Zug: there is no fundamental right to get divorced, but there also cannot
be a financial impediment to divorce.
F. Polygamy
i. Bigamy (SC Code Ann. 20-1-80):
1. All marriages contracted while either of the parties has a
former wife or husband living shall be void.
2. Exceptions: But this section shall not extend to a person
whose husband or wife shall be absent for the space of five
years, the one not knowing the other to be living during that
time, not to any person who shall be divorced or whose first
marriage shall be declared void by the sentence of a
competent court.
ii. Notes:
1. The Hester Prynne problem: 5 year exclusion if missing for
5 years with no indication of whether they are alive or dead
2. South Carolina has presumption regarding the validity of the
later marriage BOP on the first spouse (rationale for this is
that first spouse is in a better position to explain whats
been going on for 5 years)
3. Polygamy is banned in every state, but practiced in over 40
countries worldwide (mostly Africa and Middle East/Western
Asia).

4. Problems with polygamy: exploitation within families, abuse,

incest, pedophilia, forced marriage, child neglect, gender
inequality
Bronson v. Swensen (2005):
Facts: The Plaintiffs are husband are wife. The husband seeks a marriage license
to marry another woman, and his wife consents. The clerk of court refuses to
issue a marriage license. Plaintiffs say polygamy is a deeply held religious belief
and they are being deprived of CXNal rights
Issue: Does banning polygamy violate an individuals CXNal right to privacy or
free exercise of religion?
Holding: No.
o CXNal issue #1: RELIGION.
Distinguishing: Reynolds v. US NOT violating religious rights
Courts have consistently upheld the statutes banning
polygamy
There is a compelling state interest in monogamy
o CXNal issue #2: PRIVACY.
Distinguishing: Lawrence v. Texas present case deals with
marriage, not private sexual conduct
Lawrence held that a ban on sodomy was unconstitutional
because it infringed on the privacy of individuals but didnt
include the exploitation factor (young girls marrying)
Such laws do not ban the right to privacy because that right does
not extend that far. (Butit is not clear that Lawrence has no
implication at all for gay and polygamous marriages)
Reasoning: Court doesnt apply strict scrutiny, but says that even if it did, there is
a compelling state interest here, and the plaintiffs have not demonstrated that
the interest is narrowly tailored.
Notes:
o Historically, homosexual conduct has been linked and equivocated with
polygamy. After Lawrence, it is not.
Sanderson v. Tryon (1987):
Facts: Parents of 3 children never legally married but practiced polygamy. They
split up; mom entered into another polygamous relationship and dad gave up
polygamy and sued for custody and won. Mom gave up polygamy and contests
custody award. Both parents are equally fit, but the kids have primarily bonded
with mom.
Issue: Whether children may be taken from an otherwise fit and proper parent
solely for the reason that the parent practices plural marriage.
Holding: No. (Vacated and remanded)
Reasoning: The standard for custody awards is what is in the best interest of the
child. Here, the trial ct found both parents fit, only denying custody to the
mother because of her polygamous relationship. Moral character is only one
factor out of many that may be considered when awarding custody.
Notes:
o Law in SC: adultery is a moral consideration, but can only consider it in custody
arrangements if it concerns/affects the children
o 2009 SC cases: If you have too MANY affairs, you can lose custody of your
children (cases were two affairs (ok) and five affairs (not ok))
G. Constitutionality of Marriage Restrictions

10

Loving v. Virginia (1967) [miscegenation/biracial marriage]

Facts: Two VA residents, a black woman and a white man, were married in DC and
then returned to VA, where interracial marriage is outlawed by statute. When they
returned to VA, the couple was given a one-year jail sentence, which was
suspended conditionally if they left the state for 25 years. The couple challenged
the constitutionality of the statute under the 14th Amendment (Equal Protection
and Due Process).
Issue: Whether a statute preventing marriages between persons solely on the
basis of race violates the Equal Protection and Due Process Clauses of the CXN.
Holding: Yes.
Reasoning: There is no legitimate overriding purpose independent of invidious
racial discrimination which justifies this classification. Marriage is a fundamental
right and there can be no doubt that restricting the freedom to marry solely
because of racial classifications violates the central meaning of the EPC.
Because marriage is such a fundamental civil right, under the DPC it cannot be
interfered with on the base of racial discrimination.
Notes:
o Racial classifications challenged under the EPC must be subjected to the
most rigid scrutiny. (because race is a suspect classification)
o This is the first case in which the SupCt held unCXNal a state restriction on
marriage. also the first case holding that there is a FUNDAMENTAL RIGHT
to marry (which brings in strict scrutiny)
o Once something is described as a fundamental right, we know that
restrictions on it are subject to heightened scrutiny.
o This holding doesnt mean that marriage cant be regulated, the regulation
must just be reasonable
o Technically, under the law you can have race-based classifications that are
constitutional, but they are rare (Japanese internment cases)
Zablocki v. Redhail (1978)
Facts: Redhail, a Wisconsin resident, is bringing a class action suit against the
state of Wisconsin challenging the constitutionality of a statute which refuses
marriage licenses to residents who are delinquent on child support payments. The
statute states that a resident cannot marry in WI or elsewhere unless he supports
his existing child AND swears that his child will never be supported by the state.
When Redhail was a minor, he fathered a child out of wedlock and was court
ordered to pay child support. He did not pay because he was unemployed and
indigent. Two years after the order, he filed an application for marriage to a
woman pregnant with his child, whom he wished to lawfully marry before the
birth. He was not granted the marriage application because he was in arrearage
in excess of $3,700 and his child was being supported by the state.
Issue: Is a statute which denies a right to marry unconstitutional?
Holding: Yes. (use strict scrutiny)
Reasoning: When a statute classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by sufficiently
important state interests and is closely tailored to effectuate only those interests.
Even though this statute is linked to a legit govt interest (protection of children
and the states money), because it deprives an individual of the fundamental
right to marry, it is unconstitutional. With respect to individuals like Redhail who
simply cannot afford to meet the statutory requirements (pay his arrearage), the
statute merely prevents the applicant from getting married without delivering any
money at all into the hands of the applicants prior children.

11

Concur #1 (Powell): Wants to decide the case with regard to fundamental rights,
not equal protection. This analysis would yield a cleaner case.
Concur #2 (Stevens): This statute constitutes deliberate discrimination against
the poor under it, a persons economic status may determine his eligibility to
enter into a lawful marriage.
Dissent (Rehnquist): Under the EPC, the statute need pass only the rational basis
test so viewed, the statute is a permissible exercise of the states power to
regulate family life and to assure the support of minor children.
Notes:
o Not all marriage-related statutes will be subjected to heightened scrutiny
just ones that absolutely prevent/significantly interfere with the right to
marry. As long as it doesnt unreasonably restrict the decision to enter into
marriage, rational basis may be used instead of strict scrutiny.
o Califano v. Jobst (Footnote 12, p.64): When dependant children who
received SS benefits had parents who got married, they lost the benefits.
Is this a significant restriction on marriage? Courts say no, they still
have a choice of whether or not to get married. This is a minor
inconvenience, not a direct restriction on marriage.
Rule: The termination of benefits upon marriage was not an
attempt to interfere with the individuals freedom to make a
decision as important as marriage. The provisions placed no
direct legal obstacle in the path of persons desiring to get married.
o A lot of child support laws are based on the deadbeat dad who has the
ability to pay but just doesnt. But there are many more people out there
who cant afford to pay.

Turner v. Safley (1987):

Facts: Prisoners in Missouri bring a class action suit challenging an inmate
regulation that permits inmates to marry only with the permission of the
superintendent of the prison, and provides that such approval should be given
only when there are compelling reasons to do so. The state argues that a
constitutional right is not denied because, although marriage is a fundamental
right, a different rule should apply to prisons and rational basis should be the
standard. The state says that the restriction is reasonably related to legitimate
security and rehabilitation concerns.
Issue: Is there a constitutionally protected right to marriage for prisoners?
Holding: Yes.
Reasoning: Incarceration does not eliminate or remove the constitutional right to
marry. The court holds that Zablocki does apply to prison inmates, and adopts a
reasonableness standard. The court states that they can limit the marriage, but
cant completely deny the right to marry.
o 4 factor test (strict scrutiny analysis):
Rational relationship to articulated rehabilitation goal
Alternative means for perfecting that right
Accommodation of prisoners right
Alternative regulations
Notes:
o Zug: Complete bans on the right to marry are usually going to fail (in this
case, the fundamental right is so strong that even people who have lost a
lot of their rights can have this one)
o This case is distinguished from Johnson v. Rockefeller, which held that
marriages may be denied to those with life sentences here, the average
prisoner is expected to be released and consummate the marriage

12

Reasonableness test is only being applied in this case because they are in
prison, it doesnt overrule Zablocki, just clarifies it.

Other Restrictions on Marrying

A valid marriage requires consent (shotgun weddings dont meet this standard).
Historically, a breach of promise to marry was legally enforceable (heartbalm
actions):
o Seduction (brought by womans father based on idea that harm caused
by losing virginity/pregnancy is a burden on father)
o Breach of promise to marry (action to compensate the non-breaching party
for being jilted) (could still hold up in SC court, but last case is from the
80s)
Only place this has survived the giving of the engagement ring
(viewed as conditional gift)
Exceptions:
o Giving the ring on a holiday (birthday, Christmas,
etc.)
o Depends on who breaks it off
Most jurisdictions allow the giver to the ring to
recover it if the receiver does not go through
with the marriage (conditional gift)
o Majority: You can recover the ring as long as you
didnt call it off
o Minority: Fault is not considered
o SC: no cases on engagement rings, but SC is very
much about fault in marital relationships
o Criminal conversation (suing non-spouse for adultery)
o Alienation of affection (suit brought by husband or wife for interfering with
marital relationship) (eliminated through case law)
Statutes:
o 15-3-150: No civil action for criminal conversation permitted.
H. Restrictions on the Procedure for Marrying
Rappaport v. Katz (1974):
Facts: Two couples, one already married and one planning marriage by the Clerk
of Court, are complaining about the dress and ring guidelines promulgated by the
City Clerk. The guidelines are given to couples when they receive their marriage
licenses, and state that brides must not wear slacks and that one or two rings
must be exchanged. One bride didnt want to wear a skirt to her wedding, but did
anyway. The other bride wants to wear pants and she and her fianc do not want
to exchange rings. The plaintiffs say that these guidelines violate their
fundamental right to marry free of governmental intrusion on their privacy and
free expression.
Issue: Whether federal courts should supervise marriage forms and procedures in
City Clerks offices.
Holding: NO. This is a state issue, not a federal issue.
Reasoning: Federal judges have too much to do to become involved in this type
of dispute which is best and most appropriately resolved by the state of NY and
the NY City Council.
Notes:
o There is a fundamental right to marry, but it is subject to reasonable
regulation.

13

o
o

I.

Comparison to Zablocki: in this case, she CAN get married just has to put
on a skirt. In Zablocki, it was almost impossible for dad to pay off arrears
to get married. Court says that state regulations should normally be left to
states, but this regulation is really not infringing upon your fundamental
right to get married.
Significance of case: federal courts are not charged with supervising state
regulation of marriage. Federal courts are reluctant to hear family law
matters they will only step in if it is a very significant restriction.
SC marriage requirements:
License
24 hour waiting period
Fee payment
Sworn statement that couple is entitled to marry (i.e. not illegal)
NO blood test required too many privacy concerns
State of Mind Restrictions

Lester v. Lester (1949):

Facts: Husband and wife were married for 10 years. Husband claims that he and
his wife signed documents upon their marriage indicating that the marriage was
entered into under duress and thus the marriage was a fraud. He claims that the
marriage should be annulled or voided. The parties presented to the court a
contract which indicates that the marriage wasnt legit, and was entered into for
various reasons, including that someone was forcing them to get married, and it
was important to family and friends. Husband also states that he was under
duress during the entire marriage and said he had sex with under because he
was threatened. (He wants annulment instead of divorce for financial reasons
doesnt want to split up the stuff/money)
Issue: Can a private contract that serves as an agreement that a marriage is
fraudulent set aside a marriage?
Holding: No.
Reasoning: Duress and fraud can void a marriage, but social status, economic
status, and similar attributes are not grounds for an annulment. The state has
the right to regulate marriage and therefore the right to regulate divorce.
o No individual has the right to create a contract separate from that
recognized by the court. A ten-year marriage and cohabitation supersedes
the private agreement.
o Husband has accepted the benefits of marriage, so now he cannot escape
its responsibilities.
o Agreements entered into ante-nuptially between parties which do
violence to the accepted conventions and laws of the state and the
community are unenforceable as a matter of public policy.
o The Court is really just worried about the fraud against the state dont
want to allow parties to do this
Notes:
o An annulment is a determination that the conventional relationship of man
and wife had not been established despite a marriage ceremony
o Marriage procured by fraud or coercion is void. Fraud is a grounds for
annulment in SC, but only PRIOR to cohabitation.
You can also get an annulment in SC based on a lack of
cohabitation

14

o
o
o

o
o

Normally, you cannot get alimony based on an annulled marriage. But, in

SC, you can get alimony for an annulment based on fraud (which means
lack of cohabitation).
Cohabitation is NOT the same thing as consummation. BUT, full
sexual intercourse is not required in SC (not really clear what is).
How long to cohabitate to make it valid? Several days has been
held to be adequate. No case law saying if one night will work.
There is no particular time limit on when you can get an annulment
popular conception is that annulled marriages are short, but that is not
always the case
Only voidable marriages need an annulment (not void)
Typical grounds for annulment based on fraud: sexual issues (impotency,
infertility) because typical goal of marriage is to procreate
Only legal way to have sex in SC is within a marital relationship
SC: lying about finances never a ground for annulment
In most states, annulments are not possible after consummation (and the
impediment has passed).
Duress and other causes of action to void a marriage on the ground that
the partners lacked either the capacity or the intent to contract are rarely
relied on now that it has become easier to obtain a divorce in most
jurisdictions.

Annulments/Fraud
20-3-135: Spousal support obligation where marriage declared void due to
fraud.
o A marriage that would otherwise be lawful that is declared void ab initio by
reason of fraud, does not relieve the party committing the fraud of the
duty to provide spousal support that would have otherwise existed
pursuant to 20-3-130.
This statute protects the innocent spouse
Alimony
Typically, an obligation to pay alimony ends at remarriage of party receiving
alimony payments
If the remarried spouses marriage gets annulled, you may have to start paying
alimony again because its like the second marriage never happened (but if she
gets divorced, the second husband would have to pay alimony).
Johnston v. Johnston (1993):
Facts: After a 20-month marriage, Brenda seeks to have her marriage to Donald
annulled because she believes he lied to her before the marriage. She says she
was unaware of his drinking problem, and that he continues to be unemployed
and has become dirty and unattractive.
Procedure: Trial court ordered an annulment, Ct of Appeals reversed.
Issue: Does an allegation of fraud have to go to the essence of the marital relation
in order to merit an annulment?
Holding: Yes.
Reasoning: The alleged conduct does not satisfy the standard for fraud. Even if it
were fraud, because it doesnt go to the essence of the relationship it doesnt
qualify for an annulment. The concealment of incontinence, temper, idleness,
extravagance, coldness, or fortune inadequate to representations cannot be the
basis for an annulment.
Notes:

15

o
o

o
o
J.

Most courts have required a stronger showing of fraud to void a marriage

contract than to void other contracts. (very limited definition)
Reasons recognized for marital fraud:
Sex (VD, pregnancy, intent to not have sex to produce babies,
sterile)
Even fraud regarding the sexual aspects of marriage will not
make the marriage voidable once the marriage has been
consummated.
Money
Occasionally religion
Annulments have rarely been granted for fraudulent misrepresentations of
character, past life, or social standing and hardly ever for
misrepresentations on matters of property or income.
Marriage law and contract law differ in the degree of fraud required.
Marriage is way more strict.
Same-Sex Marriage

SC Code Ann 20-1-15: Prohibition of Same Sex Marriage

A marriage between persons of the same sex is VOID ab initio and against the public
policy of this state.
There is no gay marriage debate in SC
We also have a constitutional amendment against it
If the SupCt finds that gay marriage bans are unconstitutional under the US CXN,
then the state CXNs are irrelevant on this issue.
SC Code Ann. 20-4-20
Domestic violence can only be committed against spouses, former spouses,
cohabitating males/females, and people who share a biological child.
Goodridge v. Dept. of Public Health (SupCt of Mass., 2003):
Facts: Plaintiffs are 7 same-sex couples seeking marriage licenses in
Massachusetts. They desire to marry in order to affirm commitment to each other
and the secure the legal protections and benefits provided by marriage.
Issue: Whether the state may deny the protections and benefits of civil marriage
to a same-sex couple under the Mass. Constitution.
Holding: No.
Reasoning:
o Without the right to marry . . . one is excluded from the full range of
human experience and denied full protection of the laws for ones avowed
commitment to an intimate and lasting human relationship.
o The right to marry means very little if it does not include the right to marry
the person of ones choice, subject to appropriate govt restrictions in the
interest of public health, safety, and welfare.
o Court breaks up reasoning into 2 issues:
Equal Protection
Due Process
o States arguments (and why they dont meet rational basis):
Same-sex marriage is:
Not ideal for procreation
o Court: Dont have to be able to have kids to be
married, there are other reasons for marriage
Not optimal for child-rearing

16

Court: Families are more flexible no; best interest of

child doesnt turn on sexual orientation or marital
status
Preservation of state resources by denying benefits to samesex couples:
o Court: Gays are not more financially independent
than anyone else.
o

Dissent(s):
o 1: The power to regulate marriage lies with the legislature, not with the
judiciary.
o 2: Its too early to say whether this change can be made at this time
without damaging the institution of marriage or adversely affecting the
critical role it has played in our society. The legislature should postpone
any redefinition of marriage until a time when it is certain that it would not
have unintended and undesirable social consequences.
Notes:
o Standard of review rational basis
Homosexuals arent a suspect class, but minorities are.
o Lawyers for plaintiffs cited Loving in order to rebut the historical
argument (look at Loving no one thinks that case was wrongly decided,
and that was a historical argument)
Loving is about whether you can prohibit someones choice based
on race not an unlimited choice
Loving is a great case for the plaintiffs but are they being honest
with the holding of Loving?
o Importance of Lawrence v. Texas to this decision court says that it
precludes govt intrusion into the personal realms of consensual adult
expressions of intimacy and ones choice of an intimate partner but court
says Lawrence didnt address marriage.

Wilson v. Ake (2005):

Facts: Plaintiffs (lesbian couple) were legally married in Massachusetts and have a
valid marriage license from the state. They want their marriage recognized in
Florida, but Fla says their CSN doesnt require it. Plaintiffs ask the court to declare
the Federal Defense of Marriage Act (DOMA) unconstitutional. They state that Fla
is required to recognize their Mass. Marriage license because DOMA exceeds
Congress power under the Full Faith and Credit Clause.
Issue: Is the right to enter into same-sex marriage constitutionally protected?
Holding: No.
Reasoning: The Full Faith and Credit Clause does not require that Fla accept
Masss same-sex marriage decision because that would effectively be allowing
one state to set national policy. Further, the Full Faith and Credit Clause does not
require a state to apply another states law in violation of its own legitimate public
policy.
o The court does not wish to elevate the ability to marry someone of the
same sex to a fundamental right (not all important decisions, such as
choosing a partner, are protected fundamental rights).
Notes:
o DOMA regulates any tension between states having different policies.
o Plaintiffs argue that 12 US SupCt cases (the Dynamic Dozen), starting
with Brown and ending with Lawrence, demonstrate a recent trend by the
SupCt to expand the fundamental liberty of personal autonomy in
connection with ones intimate affairs and family relations.

17

K. Common Law Marriage

a. Notes:
i. No time requirement on how long the couple has to be living
together
ii. Requirements:
1. Meet age requirements (age of consent)
2. Cohabitate
3. Hold themselves out as husband and wife to the
public
4. Must agree to be CL married
5. No other impediment to the marriage (bigamy,
incest, etc.)
6. Must live in jurisdiction that recognizes CL marriage
iii. No ceremony required.
iv. Same rights as civilly married persons:
1. Can only be ended by death or divorce
2. No such thing as CL divorce, so if you have a CL
marriage, you must still get a valid divorce
3. There are two different ways to get married, but only
one type of marriage
v. If there is no showing of CL marriage, then you are just
shown to be co-habitants
1. If you split up, the court still has jurisdiction over the
children, even if you werent CL married
In re Estate of Love (2005):
Facts: Couple met in 1991 and moved in together in 1992. They operated a
business together, had a sexual relationship and shared a bedroom, and entered
an agreement to be married and she got a ring. Had joint checking account, and
shared household expenses. Witnesses testified that the couple told others that
they were husband and wife. However, son of wife offered evidence to show there
was no common law marriage witness statements and medical records.
Issue: Whether a common law marriage existed.
Holding: Yes. Existence of a CL marriage is a question of fact, and the factfinders
determination shall not be disturbed on appeal if there is any evidence to support
it.
Reasoning: Evidence tending to show the existence of CL marriage may include
such circumstances as the act of living together as man and wife, holding
themselves out to the world as such, and repute in the vicinity and among
neighbors and visitors that they are such, and indeed all such facts as usually
accompany the marriage relation and indicate the factum of marriage.
Notes:
o Today, only 10 states plus DC recognize CL marriage.
o CL marriage comes up most often when:
Spouses think in good faith they are married when they are not
One acts in good faith and the other lies
They both know they arent formally married but still think they are
legally wed
o CL marriage often helps out the injured spouse who is an innocent who
thought he/she was married (obtain benefits)
o Normally will not be found to be CL married if youve only been together a
short amount of time

18

Putative spouse doctrine: protects the innocent party who genuinely

believes they were married; applies in states that dont recognize CL
marriage
Protects the property interests of the innocent person
Usually requires a marriage ceremony, unless you have a good
faith belief that your state recognizes CL marriage
If you have a good faith belief that your state recognizes CL marriage, then
you might not have to have a ceremony to prove it (like if SC outlawed CL
marriage tomorrow)

Rodgers v. Herron (1954) (SC- TWEN):

Facts: Klaren died, leaving his estate in trust during her widowhood, and upon
death or remarriage, to his kids. Kids brought action alleging that the widow had
married Mr. Herron.
o The Will: directed that the executor (the bank) pay over the income to his
widow, Mae Klaren, during her widowhood, and upon her death or
remarriage, in equal shares to his children.
Income went to the widow from 1935-1949.
o The Suit: The childrens complaint alleged that she has married one G.T.
Herron and they have been living together as man and wife. Basically, the
wife/mother was CL married but still receiving the benefits of a single
person. The children want the bank to acknowledge this as married and
give them the funds.
o Letters showed that the woman asked the bank if she could get married
and still get income, and if she couldnt she would stay single evidence
also shows that the kids notified the bank 3 years prior to the suit that
they suspected she was married. but bank said it needed formal finding
that she was married.
o Mae Klaren has avoided a formal marriage so that she can continue to
receive payments, but unbeknownst to her, she is already legally wed.
o Huge problem for the bank: as the trustee, if it makes wrongful payments,
it will be liable. Whether absolute liability will attach is fact-dependent, but
if the Court finds the bank shouldve known there was a common law
marriage, it will be liable this is a concern because it creates a great
burden on the bank when no public records exist to check.
Issue: When was the bank required to acknowledge the marriage?
Holding: The bank should have acknowledged the marriage when the daughter
wrote the bank a letter telling them her mother was married.
Reasoning: Once the bank received information that the widow might be married
(had notice), it was their duty to take reasonable care to investigate and stop
payments. Since they didnt, they are liable to the alternative beneficiaries (kinds)
for any payments made to the widow after that notification.
o RULE: A bank, as a fiduciary, has a duty of reasonable care when carrying
out a will. Ordinary care and not absolute liability are imposed in this case.
Thus, the bank has a duty to investigate.
o The bank is not liable for payments made after the wife asks about getting
married; however, the bank was negligent in not stopping payments when
the kids said she was married (and is liable for these payments).
Notes:
o This case demonstrates how our law encourages CL marriage.
o SC 20-3-170: alimony in SC ends at cohabitation in a marriage-like
relationship.
L. Reallocation of Duties Within Marriage: Prenuptial Agreements

19

a. Contracts are not allowed to specifically say that one party is

getting married for the money
b. Typically, a prenup is valid when it is unambiguous, clear, and
explicit
c. Must be in writing, falls under Statute of Frauds
i. Exception: postnuptial contract (SC)- doesnt need to be in
writing
d. Must be executed in full capacity, with consideration (usually
agreement to marry is enough), voluntarily executed, full and fair
financial disclosure
e. Defenses: unconscionability, UI
f. Cannot determine: child custody, support, or spousal support, and
can only cover property and maintenance
i. Courts will NOT be bound by any agreements regarding child
support/custody MUST act in best interest of child
g. In South Carolina, a prenuptial agreement is presumptively valid if:
i. It is in writing
ii. It allows for full financial disclosure
iii. It is voluntarily executed
iv. Both parties are represented by counsel
h. In SC, prenups cannot determine spousal support (meaning that
you CAN have a spousal support provision that the court can
enforce, but the court can throw it out).
i. Traditionally, all prenups were treated with skepticism because they
were seen as the parties contemplating divorce
By Private Contract
Edwardson v. Edwardson (Kentucky-1990):
Facts: Husband and wife had been married to others previously; wifes divorce
decree from her former marriage provided her with $75/week in alimony until she
remarried. Before the Edwardsons married, they executed a prenup that provided
her with the same $75/week in addition to medical insurance, if they were to get
divorced. They divorced 2 years later, and wife seeks enforcement of the
agreement. Former case (Stratton) held that parties cant enter into a prenup in
anticipation of future divorce.
Issue: Whether a prenuptial agreement which contemplates divorce is
enforceable.
Holding: Yes. The notion that divorce is promoted by a prenup which
contemplates such a possibility has been rejected and the right of parties to enter
into appropriate agreements has been upheld by other courts and this court
concurs and will adopt this view.
Reasoning:
o Court says old Stratton idea was based on the view that a prenup was
destabilizing to marriage and might promote breakups. However, Court
says that times are changing and divorce is very common now plus, KY
has adopted no-fault divorce. Also, when Stratton was decided, the 19A
protecting woman didnt exist so we no longer feel as paternalistic now
about protecting women.
o Requirements for a valid prenup:
Signed with full disclosure (know what youre getting into)
Not unconscionable at the time of enforcement
Free of any material omission or misrepresentation

20

Should apply only to property and maintenance (questions of child

support, custody, and visitation are not subject to such
agreements)
Upon a finding of unconscionability, the court may modify the prenup to
eliminate it, leaving the rest of the prenup intact (as long as it wasnt
created under fraud/duress).

Notes:
o Trial courts have broad discretion to modify or invalidate prenups
o Zug: biggest reason people get divorced is over money so prenups
already contemplate these arguments and resolve them
o In SC, a prenup cannot apply to spousal support

Simeone v. Simeone (Penn-1990):

Facts: Wife, a 23-year-old nurse, married a 29-year-old doctor in 1975. He had a
large income and many assets, and she was unemployed. The night before their
wedding, he presented her with a prenup that she signed. He had counsel, but
she didnt, and got no legal advice before signing. The prenup entitled her to
receive only $200/week up to $25K total. The couple separated in 1982 and
divorced in 1984, and he paid the $25K in those 2 years. In 1985, wife filed this
claim for alimony, stating that the prenup was invalid because it was signed
under duress.
o Wife doesnt claim that the agreement failed to disclose her rights
affected, but rather that she was not adequately informed with respect to
the nature of alimony pendente lite (received during course of litigation
while outcome is pending).
Issue: Is a prenup entered into with full disclosure binding, regardless of whether
it is reasonably or fully understood by one of the parties?
Holding: Yes. A prenup entered into with full disclosure is binding, regardless of
whether it is reasonable or fully understood.
Reasoning: There is no longer any validity to the old presumption that women
needed to be protected -- society has advanced to the point where women are no
longer considered the weaker or less intelligent party and no longer need
paternalistic protection. Prenups are contracts, and should be evaluated under
the same criteria as other contracts absent fraud, misrepresentation, or duress,
spouses should be bound by the terms of their agreement.
o Looking at the reasonable of the prenup undermines its functioning and
reliability if reasonableness at the time of divorce is looked at, then any
change in circumstances during the marriage could render the prenup
useless.
Parties would not have entered such agreements, and might not
have entered their marriages, if they did not expect their
agreements to be strictly enforced.
o Full and fair disclosure of the financial positions of the parties is still
required with this requirement, there would be a material
misrepresentation in the inducement.
o If the agreement says there has been full disclosure, then the presumption
is that this statement is true, and the burden of disproving the
presumption rests with the challenger. (but there was full and fair
disclosure in this case)
Dissent: Agrees that the prenup is valid, but disagrees with majoritys opinion
regarding women. Says that things are still not equal, but it seems majority is
saying you women asked for it, now live with it.
Notes:

21

o
o

SC requires both parties to consult with counsel before signing/entering

into a prenup
Zug: generally, if you sign a prenup on the eve of your wedding, its not
valid (policy: since everything is about to happen, you dont really have
the ability to say no)

Bill Murray Prenup (TWEN):

Parties state upfront that they are not executing this agreement in contemplation
of divorce, but rather because they believe it will improve their relationship.
Problem: a provision that waives full financial disclosure
Jennifer gets: 7 mil lump sum, 1 mil house (is this fair? Cant really tell because
shes waived full financial disclosure. If hes worth way more than this, its not
fair).
Contract meets SCs requirements because it was in writing, and both were
represented by counsel
o But, Bill was represented by a huge international firm and Jennifer was
represented by a solo practitioner this probably puts then on unequal
footing (red flag)
Jennifers lawyer should have added a sliding scale provision for her lump sum
increases over time (inflation) and increases the longer youre together
In SC, she probably would have gotten alimony and of the marital property
o She gave up her right to half of the marital homes, alimony, and ED of
property acquired during the marriage
M. Alternatives To Marriage
a. Covenant Marriage: commits a married couple to marriage
counseling (religious or secular) and allows divorce in very limited
circumstances; technically secular
i. Only a few states have enacted it, and in those states a
small percentage of people have opted for it
ii. Gets rids of no-fault divorce system and brings back fault
based system (new phenomenon)
iii. Largely used by very conservative people who are religious
and never plan on getting divorced anyway. Promoted by
many churches.
iv. NOT recognized in SC only a few states have it (LA, AK, AZ)
v. Zug: creates a dual track for marriage- could be perceived
as you take your marriage more seriously and are more
committed (big concern with having multiple marriage
options- pressure)
Louisiana Covenant Marriage Statute: LA Rev. Stat 9:272 (2002)
1. (a) A covenant marriage is a marriage entered into by one male and one
female who understand and agree that the marriage between them is a
lifelong relationship. Parties to a covenant marriage have received counseling
emphasizing the nature and purposes of marriage and the responsibilities
thereto. Only when there has been a complete and total breach of the marital
covenant commitment may the non-breaching party seek a declaration
that the marriage is no longer legally recognized
(b) A man and woman may contract a covenant marriage by declaring their
intent to do so on their application for a marriage license, as provided in R.S.
9:224(C), and executing a declaration of intent to contract a covenant
marriage, as provided in R.S. 9:273. The application for a marriage license

22

and the declaration of intent shall be filed with the official who issues the
marriage license.
(c) A covenant marriage terminates only for one of the causes enumerated in
Civil Code Article 101. A covenant marriage may be terminated by divorce
only upon one of the exclusive grounds enumerated in R.S. 9:307. A covenant
marriage agreement may not be dissolved, rescinded, or otherwise
terminated by the mutual consent of the spouses.
2. Civil Code Article 101:
a. Marriage terminates upon:
1. The death of either spouse.
2. Divorce.
3. A judicial declaration of its nullity, when the marriage is
relatively new.
4. The issuance of a court order authorizing the spouse of a
person presumed dead to remarry, as provided by law.
b. Palimony
Putative Spouse Doctrine: defends individuals who mistakenly, in
good faith, believe that they are married
Marvin v. Marvin (California- 1976) (famous palimony case):
Facts: Husband and wife had an oral contract that stated that they would live
together and hold themselves out as man and wife. Husband kept his house and
property, and in exchange, wife agreed to support and care for him for life. They
split up after 7 years, and she now wants half of all the property accumulated
during the relationship.
Issue: Where cohabitation is found, expressly or impliedly, on a sharing-ofproperty basis, does the non-acquiring partner have an interest in property
acquired during cohabitation?
Holding: Yes.
Reasoning: Adults who voluntarily live together and engage in sexual relations are
nonetheless as competent as any other persons to contract respecting their
earnings and property rights.
o Contracts based solely on sexual consideration are INVALID; BUT
When non-sexual aspects of the living arrangements are based
upon sharing income, contract law requires that the non-acquiring
partner has an interest
o Hill v. Estate of Westbrook: couple lived as man and wife, she bore his
children and took care of the house. Ct. held that it couldnt separate the
illicit services from the decent services, so INVALID K
o Updeck case: court says it this is a K for adultery.
Rule: A contract is invalid only if it is expressly inseparable from sexual services.
Notes:
o Express or implied cohabitation, founded on sharing property and separate
from sex, gives the non-acquiring partner a property interest
Religious Restrictions
Note: Problems often arise in religious marriages because there is a 1st
amendment issue when courts try to deal with religious precepts.
Aflalo v. Aflalo (NJ-1996):
Facts: Jewish couple gets separated husband wants religious marriage
counseling, but wife wants a divorce under Jewish law a get. Without the get,
the wife is not allowed to remarry under Jewish law.
Issue: Can the court order the husband to allow a Jewish religious divorce?
Holding: No.
23

Reasoning: This court has no authority, even if it were willing, to choose for these
parties which aspects of their religion may be embraced and which must be
rejected. To engage even in a well-intentioned resolution of a religious dispute
requires the making of a choice which accommodates one view and suppresses
another.
o The Establishment Clause prohibits govt from placing its support behind a
particular religious belief, or becoming entangled in the practice of religion
by its citizens
o Civil courts may not override a decision of a religious tribunal or interpret
religious law or canons (under 1A and 14A).
o Minkin case similar case; said that the get does not contain the word
God, so the case only concerns pure civil issues. This court rejects that
argument
Notes:
o Zug: religious marriages cannot be enforced in the courts.

Gender Roles
Graham v. Graham (1940):
Facts: Husband and wife contract for her to give him $300 per month to leave his
job and travel with her. They divorced a year later, and he brought suit alleging
that the K should be enforced.
Issue: Is a contract that alters the essential incidents of marriage legal?
Holding: No. The contract is not enforceable.
Reasoning: The contract is void because it contravenes public policy the law
doesnt allow a contract to change the essential obligations of marriage. There is
a slippery slope argument here; namely, if the parties can contract regarding
these issues, they could contract for anything.
Notes:
o This is a classic case of the court imposing the partriarchal system of
marriage. Today, the support obligation is mutual.
o Zug: court is very hesitant to get involved with the inside of a marriage
Bradwell v. Illinois (1873): Woman sought admissions to IL bar and was denied. Court
states that women belong in the domestic sphere, and allowing them to work outside
the home would disrupt the harmony of the family institution.
Challenges to the Traditional Marriage Model
Orr v. Orr (1979):
Facts: Husband is challenging an Alabama statute that allows alimony only for
women and not men.
Issue: Whether alimony statutes which provide that husbands, not wives, may be
required to pay alimony upon divorce are constitutional.
Holding: No.
Reasoning: These statutes are EPC violations because they provide that different
treatment be accorded on the basis of sex (SS).
o SS TEST: this IS an important government objective, but the statute is not
substantially related to that objective.
o Court says that use of a gender classification actually produces perverse
results in this case i.e., the wives who benefit from the disparate
treatment are the ones who were nondependent on their husbands.
o Legislative classifications which distribute benefits and burdens on the
basis of gender carry the inherent risk of reinforcing stereotypes about the
proper place of women and their need for special protection.

24

Notes:
o Gender is not a suspect class because there are physical differences
between the sexes that sometimes must be accounted for.
o The fact that this is gender discrimination against men and not women
does not change the analysis treated equally
o Many states used to have these types of statutes, but theyve all either
been struck down or repealed
o Zug: there has recently been a big decline in alimony awards some
suggest this is a backlash against the decision to let men have alimony

United States v. Virginia (1996):

Facts: VMI was traditionally an all-male school. A female high school student who
wished to enroll challenged the policy in 1990. Prompted by that complaint, the
US sued VA and VMI, alleging that the policy violated the EPC of 14A. VMI
proposes that it builds a reciprocal womens college at Mary Baldwin college
called the Virginia Womans Institute for Leadership, which purports to be just like
the VMI program.
Issue: Does VMIs female admission exclusion policy violate the EPC?
Holding: Yes. Furthermore, the remedy proferred by VA the VWIL alternative at
Mary Baldwin College does not cure the constitutional violation because it does
not provide equal opportunity.
Reasoning: The Court applies intermediate scrutiny and holds that gender
discrimination violates the CXN.
o However liberally this plan serves the states sons, it makes no provision
whatever for her daughters. That is not equal protection.
o VWIL is not equal because:
Affords women no opportunity to experience the rigorous military
training for which VMI is famed
No barracks life experience
VWIL is planned for woman who do not necessarily expect to
pursue military careers
Student body, faculty, course offerings, facilities, etc. are unequal
VWIL grads do not get benefits of legacy, prestige, reputation, and
alumni
Completely unequal physical training facilities
Dissent [Scalia]: Believes that the majority is really using SS, not IS. However, he
also believes their analysis is wrong. Says that empirical evidence proves that
single-gender education at the college level is beneficial to both sexes. VAs
election to fund one public all-male institution and one in the adversative and to
concentrate its resources in a single entity that serves both these interests in
diversity is substantially related to the states important educational interests.
o Todays decision does not leave VMI without honor; no court opinion can
do that.
Notes:
o Parties who seek to defend gender-based government action must
demonstrate an exceedingly persuasive justification for that action.
o Heightened review standard sex is NOT a proscribed classification. Must
have:
Important govt objective, and
Rational relation to objective
o We can still have single sex schools the issue is whether you can have a
specialized school that is single sex only and therefore deny women the
opportunity that men get

25

N. Benefits and Responsibilities of Marriage

a. SC 20-5-60: Doctrine of Necessaries: A husband shall not be liable
for the debts of his wife contracted prior to or after their marriage,
except for her necessary support and that of their minor children
residing with her.
i. Not liable for debts unless they contribute to necessary
goods
ii. Zug: may still be relevant today for medical expenses
hospitals try to invoke doctrine to enforce payment
b. Inheritance Rights
i. Intestacy: if a spouse dies without a will, the surviving
spouse is entitled to half the estate
1. No surviving issue- spouse gets ALL
2. Surviving issue- spouse gets half
3. Must live 120 hours after other spouse
ii. Testacy:
1. Will disinherits the spouse (not allowed in SC)
a. Still entitled to 1/3 portion after debts
2. Omitted spouse (doesnt say why) (may have made
will before marriage)
a. Surviving spouse will receive same amount
she would have received intestate unless they
can show that it was the intent of the testator
to leave spouse out
iii. Property Rights:
1. No such thing as tenancy by the entirety in SC (27-740) either a joint tenancy or tenancy in common
(but only JT if it includes a right of survivorship)
2. Each spouse controls all real and personal property of
their own
c. Marital Privacy
McGuire v. McGuire (1953):
Facts: Plaintiff wife and Defendant husband have been married for 33 years. Wife
seeks to recover suitable maintenance and support money from husband, who
basically made her live in squalor and did nothing but pay for food. He had plenty
of money, but everything they owned was outdated and their house didnt even
have bathrooms or showers.
o Procedure: District court comes up with a plan, says she deserves the
money for the necessaries
Issue: Can support be granted to a wife who continues to live with her husband?
Holding: No.
Reasoning: The court states that the wife has excited this way without
complaining for over 30 years, and the parties have not been separated or living
apart at any time. In order to maintain an action for maintenance, the parties
must be separated or living apart. As long as the home is maintained and the
parties are living as husband and wife, it may be said that the husband is legally
supporting his wife and the purpose of the marriage relation is being carrid out.
o Court further states that the living standards of a family are a matter of
concern for the household, and not for the courts to determine
Dissent: No precedent indicates that separation is a condition precedent to the
right to maintain actions in equity for maintenance.
Notes:

26

o
o

Case seems to say that you have this right to support, but theres really
nothing the court can do about it to enforce it (unless youre separated)
Zug: another traditional duty of marriage for women is to provide sexual
relations to her husband
d. Interspousal Tort Immunity
i. Definition: common law doctrine based on the legal fiction
that husband and wife share the same identity in law,
namely that of the husband; accordingly, at common law,
tort suits between two spouses were not permitted. (No
longer recognized in SC).
ii. Majority of cases brought against spouses involve car
accidents

Boone v. Boone (SC, 2001- abolished interspousal tort immunity)

Facts: Wife sued Husband to recover for personal injuries she suffered in a car
accident in GA while he was driving. GA law provides interspousal tort immunity,
but SC law does not and normally the law where the accident occurred governs.
Issue: Whether interspousal immunity from personal injury actions violates the
public policy of SC.
Holding: Yes. SC courts will not longer apply lex loci delicti (law of the state in
which the injury occurred) doctrine of interspousal immunity because it violates
the public policy of SC.
Reasoning: The court finds it contrary to natural justice to hold that because of
their marital status, wife is precluded from maintaining an action in recovery
against the husband.
o Court also states that old reasons in support of the immunity are outdated
married couples are no more likely to act in collusion than anyone else.
o Public policy of SC: to provide the same rights to married persons as to
unmarried persons.
Notes:
o Very few jurisdictions now recognize interspousal tort immunity
o Main reasons we used to have immunity:
Worried about marital harmony (hard to reconcile)
Concerned about fraud couple more likely to perpetrate fraud on
a insurance company than a non-couple
o SC Choice of Law
Traditional SC choice of law principles, the substantive law
governing a tort action is determined by lex loci delicti, the law of
the state in which the injury occurred.
EXCEPTION: if the foreign law violates public policy
PP is violated if the foreign law is against good morals or
natural justice SC wont apply it
e. Domestic Violence
f. Battered Womens Syndrome
i. A battered woman is one who is repeatedly subjected to any
forceful physical or psychological behavior by a man in order
to coerce her to do something he wants to do without any
concern for her rights
ii. Battered Womens Syndrome: a series of common
characteristics that surfaces in women who are abused for
an extended period of time by the dominant male figure in
their lives

27

1. Characteristics: fear, hyper-suggestibility, isolation,

guilty, and emotional dependency, which culminate
in a womans belief that she should not and cannot
escape her batterer. A battered woman believes that
her batterer is capable of killing her.
iii. Cycles of BWS:
1. First phase: tension increases between the woman
and her partner, and minor abuse occurs
2. Second phase: violence escalates and the battering
occurs
3. Third phase: occurs after the battering; there may
be a temporary lull in the physical abuse inflicted on
the woman, at which time the woman forgives the
batterer.
a. As the relationship progresses, however, the
tension building before battering becomes
more common, and the batterers feelings of
loving contribution decline
iv. SC has recognized BWS since 1986
Robinson v. Robinson (SC case):
Facts: Wife shot her husband while he was asleep and was found guilty of murder.
She is petitioning for post-conviction relief, claiming ineffective counsel because
her attorney did not claim a battered womens defense at the trial.
Issue: Was the wifes counsel ineffective for not brining a BWS defense?
Holding: No. The case occurred 6 years before BWS was recognized as a defense
by the SupCt.
Reasoning: BWS could possibly be used as an argument for self-defense, however
in this case it had not been acknowledged as such, so there is no claim of
ineffective counsel. Court compares BWS to self-defense (they are compatible).
Notes:
o Elements of Self-Defense:
Defendant without fault in bringing on difficulty
Defendant must actually believe in imminent danger of losing life
or serious bodily injury
Objective reasonable person would agree
No other means available for protection
o Does BWS meet the elements of self-defense?
Without fault yes
Belief of imminent danger depends on facts of case
Objective reasonable belief if the repeated battery does appear
inescapable
No other means available depends on the facts of case
o Zug: opposite concern of allowing BWS defense is that the woman waits
until he is defenseless or takes advantage of a lull in the violence to attack
her
o SC is very strongly protective of battered women (16-25-20)
People v. Humphrey (1996):
Facts: Defendant girlfriend shot and killed live-in boyfriend after they had been
arguing all day. He was drunk and hit her (pretty routine). He also shot at her the
previous day, and had a pattern of extreme abuse. She went to trial claiming selfdefense and used a BWS defense. Convicted of voluntary manslaughter in trial
court, and app ct affirmed.
28

Issue: Is evidence of BWS relevant to both (1) reasonableness, and (2) subjective
belief for the necessity of self-defense, and may a jury consider it for both prongs
of the test for self-defense?
Holding: Yes.
Reasoning: BWS is relevant when proving both objective reasonableness and
subjective belief (but if you have actual belief but it was objectively unreasonable,
then it isnt self-defense). It can and should be considered by the jury.
Notes:
o Zug: seems that SC applies a reasonable BWS standard. In this case, CA
makes it clear that this is not the standard they are applying.
o BWS is an actual mental syndrome. The law recognizes BWS as a defense,
and the scientific community has almost unanimously recognized this as
an illness.
o There are very few women who are completely acquitted (<10%), but it
often comes in to mitigate the sentence or charges
o We need BWS defense for situations that dont meet the elements of selfdefense (like when the husband is sleeping and then the element of
imminent harm is not met). If you meet the elements of self-defense, then
youre home free.
o Castle doctrine your castle is your home; you dont have to retreat (can
defend your home and yourself, even if you can easily leave).
g. SC 16-3-615: Spousal Sexual Battery:
i. Sexual battery, as defined in 16-3-651(h), when
accomplished through use of aggravated force, defined as
the use or the threat of use of a weapon or the use of threat
of use of physical force or physical violence of a high and
aggravated nature, by one spouse against the other spouse
if they are living together, constitutes the felony of spousal
sexual battery and, upon conviction, a person must be
imprisoned not more than ten years.
ii. The offending spouses conduct must be reported to
appropriate law enforcement authorities within 30 days in
order for that spouse to be prosecuted for this offense.
iii. The provisions of 16-3-659.1 apply to any trial brought
under this section.
iv. This section is not applicable to a purported marriage
entered into by a male under the age of sixteen or a female
under the age of fourteen.
h. Spousal Rape: recognized by SC
i. Regular rape: max penalty is 30 years in jail
ii. CONSENT: big issue
1. This is part of the reason for escalated proof (the
physical proof of rape)
iii. Why are marital rapes treated differently from stranger
rape? (stranger rape punishments are MUCH harsher)
Seems to be a difference in how we view them; less
concerning, more worried about the issues of proof
iv. Vindictive wife argument:
1. Women asserts claim to get a better divorce
settlement
2. People lie doesnt mean that you dont still offer the
option for those who dont lie.

29

Kizer v. Commonwealth (1984-VA):

Facts: Wife maintained a separate residence from her husband, told him the
marriage was over, and refused him entrance to the home for over 3 weeks.
Husband found out that the marital rape law was on his side, and forcibly and
brutally raped his wife after breaking down the door. She pressed charges, and he
was found guilty and sentenced to 15 years probation. He appeals.
Issue: Did the prosecution establish the elements for marital rape beyond a
reasonable doubt?
Holding: No. The wife failed to showed beyond a reasonable doubt that she
conducted herself in manner that established an actual end to the marriage, in
light of all the circumstances.
Reasoning:
o Elements of marital rape:
Rape
Wife unilaterally revoked implied consent to sex
Standard: beyond reasonable doubt
Revoked consent: must be demonstrated by manifest
intent to terminate the marital relationship
o Intent to Terminate:
Lived separately
No sex
In light of all the circumstances has conduced herself in a way
that establishes an end to the marriage
o The wife might have subjectively believed that the marriage was over BUT
didnt sufficiently communicate that to the husband.
Dissent: The holding makes no sense. By filing a custody suit, the husband
indicated that he believed the marriage to be over.
Notes:
o RULE: A woman has to have a subjective belief that the marriage is over
AND make her intent for the marriage to be over objectively manifest to
her husband
o Zug: this is still good law in VA and many other jurisdictions but NOT the
law in SC
o Most outrageous case well see all year
i.

Testimonial Privilege:
i. General:
1. Old law: husband and wife were one person, unable
to sue themselves and unable to testify against each
other
ii. Modern justification for privilege: harmony in marriage, and
trust
iii. Court applies balancing test to determine whether the
testimony is privileged
iv. Confidential Marital Communications:
1. Spouses can testify against each other
2. BUT they cannot testify against each other regarding
confidential communications (pillow talk)
v. SC Rules:
1. Common law exceptions to spousal privilege:
a. Child abuse
b. Death of a child
c. Child molestation
2. Privilege is held by testifying spouse:
30

a. They cannot be forced or prevented from

testifying by the other spouse
3. Assault is NOT considered a marital communication
4. SC will not MAKE you testify against your spouse
Trammel v. US (TWEN):
Facts: Defendant was a drug smuggler who was convicted based on the testimony
of his wife. She chose to testify against him because the prosecution offered
immunity. He says her testimony was wrongly admitted due to the testimony
privilege.
Issue: Should the wife have been allowed to testify against her husband?
Holding: Yes.
o Apart from confidential communications, a witness spouse alone has the
privilege to refuse to testify adversely and may be neither compelled to
testify nor foreclosed from testifying, and
o Grants of immunity and assurances of lenient treatment do not render he
testimony involuntary, and
o Accuseds claim of privilege was properly rejected.
Reasoning: A witness spouse ALONE has the right to testify or refuse to testify and
may not be prevented or forced.
o When one spouse is willing to testify against another in a criminal
proceeding regardless of what the motivation is there is probably little
in the way of marital harmony for the privilege to preserve.
Notes:
o In SC: spouse has the right to testify against other spouse during marital
communications, but cant be forced to so you have the right, but cant
be compelled to disclose.
o Zug: two types of privileges: (1) pillow talk, and (2) within presence of 3 rd
parties (private conversations v. any and all conversations they had
involving the presence of 3Ps)
o Court uses a balancing test that weighs privacy issues between the
spouses (includes marital harmony) v. the benefit to the state/public of
spouse testifying
o This testimonial privilege is much broader than other testimonial privileges
we have (doctor-patient, etc.)
o Confidential communications are STILL privileged (unless state law is
contrary). This decision applies only to testimony of non-marital
statements over the objection of the other spouse.
o In SC (State v. Copeland), you can testify against your spouse if you want
to, but you dont have to. (SC 19-11-30)
o Exception to the privilege of testimonial choice: will force an unwilling
spouse to testify regarding child abuse, death of a child, and criminal
sexual conduct with a minor (rationale: court is more concerned about kids
than the marriage in these situations)
o Physical acts of assault are NOT considered communications so, you cant
choose not to testify about the abuse
j.

The doctrine of family privacy

i. General:
1. Courts give deference to family privacy reluctant to
interfere has blossomed into a reluctance to
interfere in marriage/family at all

Griswold v. Connecticut (1965)

31

Facts: Directors of Planned Parenthood were arrested and convicted under a

Connecticut statute that made the distribution of contraceptives illegal. They
gave information, instruction and medical device to married couples.
Issue: Do laws that prevent the distribution of contraceptives to married people
violate the constitutional right to privacy?
Holding: Yes.
Reasoning: Laws that restrict the distribution of contraceptives to married people
violate the constitutional right to privacy
o The constitutional right to privacy is pulled from several amendments:
Guarantees 1, 3, 4, 5, and 9 A
o The marital relationship is protected and the regulation of the use of
contraceptives, as opposed to their manufacture, threatens that protection
o Privacy right is not a personal right it attaches to marriage, not the
individual
Notes:
o Zug: this is the case that all the abortion cases stem from
This opens the floodgates once a couple is allowed to use
contraception, its hard to prevent manufacturing it
o Penumbras shadows cast from the guarantees in the Bill of Rights

Eisenstadt v. Baird (1972):

Facts: Baird was convicted of distributing contraceptives to unmarried people at a
college lecture. A Massachusetts statute provides for a max 5-year sentence for
anyone who gives away contraceptives except for pharmacists who can only
furnish them to married persons with a prescription.
Issue: Whether there is some ground of difference that rationally explains the
different treatment accorded married and unmarried persons under the statute.
Holding: No. Unconstitutional statute under EPC.
Reasoning: Statute treating married and unmarried people differently regarding
contraceptives is unconstitutional.
o Scrutiny analysis: only a marginal relation to the proferred objective.
o This court says that, unlike Griswold, they should divide up the married
couples to address the rights of individuals
o What is the objective?
Deterrant to fornication? Doesnt work. Cant say a baby is a
punishment for fornication.
Health may no more reasonably be regarded as its purpose than
the deterrence of premarital sexual relations.
o If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusions
into matters so fundamentally affecting a person as to the decision
whether to bear or beget a child.
Notes:
o This case sets the stage for Roe v. Wade.
Lawrence v. Texas (2003):
Facts: Two police officers entered an apartment to investigate a weapons
disturbance, and found Lawrence and another man engaged in sexual acts. They
were arrested and convicted for violating a Tx. Statute which makes deviate
sexual intercourse (oral, or penetration with an object) with a member of the
same sex a crime. Challenged under EPC and DPC.
Issue: Is a statute making it a crime for two persons of the same sex to engage in
intimate sexual conduct unconstitutional?

32

IV.

Holding: Yes. The EPC protects freedom to engage in private conduct among
BOTH heterosexual and homosexual partners.
Reasoning: A traditional view that a practice is immoral is insufficient support to
continue a prohibition. Intimate choices by heterosexual or homosexual people
are protected as a form of liberty. Thus, the constitutional right to privacy bars
punishment of private conduct (in the home) between either type of partners.
Notes:
o This case overrules Bowers where a statute prohibited sodomy between
anyone, not just homosexuals (just like the TX statute does)
o It was not until the 70s that any state singled out same-sex relations for
criminal prosecution
DIVORCE
A. South Carolina:
i. No such thing as legal separation
1. If youre not divorced, youre married
ii. Because there is no legal separation in SC, having sex during the
one year separation period counts as adultery
iii. 20-3-140: separate support and maintenance same thing as
alimony, you just get it while divorce is pending (this is sometimes
what we mean by legal separation)
iv. In order to get divorced in SC, at least one party must be an SC
resident; if both are SC residents, there is a 3 month residency
requirement; if only one is SC resident, 1 year residency
requirement
1. Whats the point? Prevent forum shopping.
2. SC courts can grant divorce if they have jurisdiction over
one party, but must have PJ over both parties to deal with
monetary issues. PJ is established by physical presence,
property ownership, or minimum contacts, unless the
defendant submits to the courts jurisdiction
v. A divorce obtained in another jurisdiction has no force and effect in
SC if the parties were domiciled in SC at the time they obtained the
divorce. (20-3-420)
B. Fault Divorce
i. Not every state has fault divorce but fault divorce can be
attractive because it changes the way we consider alimony and
property settlements. If you live in a no-fault state and the wife
cheats, she can still get alimony but in a fault state, it would
change the considerations.
ii. SC considers fault in awarding alimony.
iii. Grounds (SC):
1. Cruelty:
Physical
i. Test: must have
1. Physical violence
2. Conduct must render co-habitation
unsafe
ii. Mental
Desertion
Habitual drunkenness or drug use
Adultery
i. Must show inclination
ii. Must show opportunity

33

Separate and apart for 1 YEAR

2. NOT on the list: emotional abuse, child abuse, constructive
desertion (still living together but physically deserted),
imprisonment, insanity, genetic disease
Underlying these categories is the goal of trying to
preserve marriage if possible
C. Physical Cruelty
i. 2-part test:
1. Actual danger to life or limb
2. Must render cohabitation unsafe
ii. A single act of violence is usually insufficient for physical cruelty
1. However, a really severe act of violence, like shooting, is
sufficient for physical cruelty (act is life-threatening)
iii. Other states recognize mental cruelty, but we dont.
iv. Before no-fault divorce, if you didnt fit into any fault categories,
you were out of luck. Now, it just matters as to whether well punish
you for this behavior through the divorce laws.
Benscoter v. Benscoter (Penn.1963):
Facts: Husband filed a complaint for divorce on the ground of indignity to the
person he alleged that his wife was verbally abusive and blamed him for them
not having a girl child. Wife had multiple sclerosis and stated that was the real
reason for her behavior, along with evidence of husbands adultery.
Issue: Can cruelty be established as a basis for divorce through course of conduct,
or can it be established through sporadic episodes?
Holding: Cruelty must be shown through a course of conduct. Held for wife.
Reasoning: Ill health both explains and excuses a wifes conduct and the acts of a
spouse resulting from ill health do not furnish a ground for divorce. Husband was
seeing another woman and became unsatisfied with wife because of MS,
according to court so hes not innocent.
Notes:
o There are no more fault-only states.
o In fault-based divorces, both parties must be treated equally.
o This case demonstrates that fault requires an innocent and a guilty party,
and requires moral judgments about marital conduct. (in this case, Wife is
the guilty party so the court needs to determine why she is being cruel
and whether we can forgive her for it)
o Does it seem wrong to force this couple to stay together when they dont
seem happy anymore? Money considerations are a big part of it if hes
still in the marriage, hell support her.
o This is Penn which did not allow no-fault divorce until 1980 husband
doesnt have any other way to get out at this time.
Hughes v. Hughes (2nd Cir.1976):
Facts: Wife alleges that husband was cruel to her and made physical threats
toward her that necessitated a separation. She left the home for a year, then
came back, and he kept being abusive. Wife wants a separation from bed and
board (legal separation we dont have these in SC). Husband counterclaims,
saying that wife abandoned him when she left the home. Trial court held for wife.
Issue: Is mental cruelty grounds for a fault divorce?
Holding: Yes.
Reasoning: The court only considers the behavior of the husband after the
reconciliation, and found daughters testimony convincing to establish husbands

34

cruelty. Mental harassment is sufficient to render the continued living together

insupportable.
Notes:
o Mental cruelty is a basis for a fault divorce
o Zug: SC recognizes only physical abuse, not emotional abuse
o Today, most courts consider psychological harm sufficient to grant a
divorce for cruelty or indignities to the person. Even where physical harm
is required, it may be met by such evidence as weight loss, or
nervousness.
o Its hard to prove mental cruelty because there is no physical proof, and
there is less of a standard.
o Things like forgiveness and reconciliation can prohibit you from getting a
fault divorce
o Why do Benscoter and Hughes come out differently? There isnt a legal
difference, but Court seems more likely to find grounds for cruelty against
wife than against husband.
o Zug: Its a problem when children testify against their parents making
them pick sides, whether they choose to testify or not
D. Adultery
Arnoult v. Arnoult (LA, 1997):
Facts: Wife appeals trial courts finding that she committed post-separation
adultery and its granting of a divorce to husband. Husband used a private
investigator to confirm the adultery allegation and put forth no other evidence. PI
only saw the couple be alone together, and hug and kiss.
Issue: Can a prima facie case of adultery be built on the testimony of hired
investigators?
Holding: Yes. Fault divorce granted to husband.
Reasoning: Circumstantial evidence can be sufficient to prove adultery and the
appellate court will afford the trial court great weight on appeal without a showing
of manifest error. A prima facie case can be made with only an
investigators testimony so long as:
o Other facts and circumstances can be shown to lead fairly and necessarily
to the conclusion that adultery occurred
Notes:
o Adultery is normally proven by circumstantial evidence. Alternatively, one
can attempt to show that the wife has borne a child that is not the child of
her husband.
o Even though there is no actual proof of sex, courts lean in favor of finding
adultery if facts and circumstances could logically lead to that conclusion
o If we required actual, rather than circumstantial, proof, we would usually
not find adultery it is really hard to prove.
o The court is making a judgment as to what constitutes adultery: inclination
+ opportunity (even when you know there was no sex = adultery
o In SC, demonstration of adultery bars alimony If you cheat, NO ALIMONY.
o If your alimony award is non-modifiable and the other spouse cheats,
youre out of luck. If it is modifiable, adultery bar will kick in.
o In SC, you dont need sex just proof
E. Desertion
Crosby v. Crosby (LA, 1983):

35

Facts: A wife appeals a judgment denying her permanent alimony under a LA

statute that requires a spouse to show that they are free from fault in order to
receive alimony. Trial court said wife was at fault because she didnt follow her
husband when he changed domiciles. The statute states that the wife is bound
to live with her husband and to follow him wherever he chooses to live. Trial
court said this was desertion on her part.
Issue: Is this statute unconstitutional under the EPC?
Holding: Yes.
Reasoning: The statute discriminates against women on the sole basis of gender
by arbitrarily forcing them to follow husbands wherever they choose to live, in
clear violation of the EPC. It accords men and women different treatment on the
basis of sex. Alimony cannot be denied to wife.
Notes:
o Some states recognizes constructive desertion operates sort of like a
defense but, if its proven it defeats the spouses COA and serves as an
alternate ground for divorce
It has been held that refusal to have intercourse without
contraceptives constitutes constructive desertion
o Divorce based on desertion may affect alimony and equitable distribution
o SC requirements for desertion: (1) cessation from cohabitation for one
year, (2) absence of consent to cease cohabitation, (3) no plan to resume
cohabitation, and (4) absence of justification/reason to leave (you leave,
but not because spouse hits you, etc.)
o Important: difference from separation is that desertion is NOT mutual
CONSENT is the difference (you have to show that, the entire year they
were gone, you would have accepted them back into your home if you
change your mind during that period and say you wouldnt take them
back, the desertion ground disappears)
o How to handle this ex. couple has to live apart for a year in order to have
a legal separation make them put this in writing so no one can say they
were deserted (remember there is no such thing as legal separation in SC)
o One spouse refusing to sleep with the other does not constitute desertion
F.

HABITUAL DRUNKENESS/DRUG USE

I. SC requirements: (1) must be a fixed habit (regular or common
occurrence), (2) no need to be continuous, and (3) exist at or near
the time of filing for divorce

G. Traditional Defenses to Fault Divorce

i. SC 7 defenses to fault divorce
1. Collusion
2. Connivance
3. Condonation
4. Recrimination
5. Insanity
6. Provocation
7. Reconciliation (when you take them back, but do not forgive
them)
ii. RECRIMINATION
1. Definition: Counterclaim or defense that plaintiff has been
guilty of something that would constitute grounds for a fault

36

2.

3.
4.
5.

divorce; if both parties are guilty, neither can be granted a

divorce
Ex: both spouses commit adultery
Majority of states have abandoned or restricted this doctrine
because theyve seen problems with it. SC STILL HAS IT. (a
fault used only to allocate alimony and property not to
actually get the divorce)
When there was only fault divorce, there was more reason to
eliminate recrimination. But now that we have no-fault
divorce, its not as big of a deal.
Idea here is that there are 2 guilty parties, as opposed to the
usual fault positions of one guilty/one innocent. The law
leaves the guilty parties as they are.
Not a defense to the statutory bar to alimony (because of
adultery). Even if both parties commit adultery, no one gets
alimony (20-3-130).

Rankin v. Rankin (Penn, 1956):

Facts: Husband instituted action in divorce against wife alleged cruel and
barbarous treatment and indignities to the person, but was amended to include
desertion. He alleges that wife was verbally and physically abusive, threw hot
water on him, threatened him with knife, etc. He had also been arrested for
assault and battery against her in the past.
Issue: Does the plaintiff have to be innocent of fault to get a divorce based on
indignities?
Holding: Yes. No right to divorce in this case.
Reasoning: The fact that married people do not get along well together does not
justify a divorce. This is an unhappy union. If both are equally at fault, neither
can clearly be said to be the innocent and injured spouse, and the law will leave
them where they put themselves.
o Moyer in a proceeding on the grounds of indignities, it must clearly
appear from the evidence that the plaintiff was the injured and innocent
spouse.
Notes:
o This case demonstrates the necessity of no-fault divorce they couldnt
get divorced otherwise.
o Recrimination will not count as a defense to the statutory bar to alimony
o SC is one of the few states that still has this recrimination defense
iii. CONNIVANCE
1. Definition: Supposedly innocent spouse corruptly consents
to other spouses act of sexual misconduct or actively
creates an opportunity for such misconduct to occur (similar
to entrapment)
Sargent v. Sargent (NJ, 1920):
Facts: Husband suspected that his wife was having an affair with the chaffeur.
Instead of keeping him away, he employed him and gave them plenty of time to
be together. He left town and placed detectives in his home. Then he sued for
divorce on the grounds of adultery.
Issue: If a husband provides the opportunity and inducement for his wife to
commit adultery, can he obtain a divorce?
Holding: No.

37

Reasoning: Our courts have said that it is undoubtedly true that a man may
watch his wife without warning her of his intention to do so, but it is equally true
that he may not actually participate in a course of action leading to her downfall.
If he took no effort to avoid the danger, he must be understood as permitting it.
Notes:
o Court says its ok to spy on her, but not to actively participate. Court also
seems to blame the husband for not doing more to prevent her from
committing adultery.
o This demonstrates that, in fault divorce, there must be one innocent and
one guilty party husband wasnt innocent, so no divorce
o Doesnt just apply to adultery in theory, but its hard to set up a spouse for
another fault ground (provocation usually covers physical cruelty)
o Zug: Simmons was black more of this case is about the audacity of a
husband allowing his wife to have an affair with a black man.
iv. CONDONATION
1. Definition: forgiveness; usually shown through the
resumption of marital/sexual relations
2. Alimony is not barred for forgiven adultery condonation is
a defense to the bar on alimony. However, the complaint for
alimony can be revived if the guilty spouse does it again.
3. Different from reconciliation (reconciliation: no forgiveness,
you just take them back with reconciliation, you cannot
revive the previous fault)
4. Condonation requires:
Forgiveness
Mutual intention to renew full marital relations
(sexual co-habitation)
Full knowledge of the marital offense (if your spouse
doesnt know everything you did, forgiveness doesnt
count)
5. Note: Reconciliation only requires the last two elements of
condonation (intention to renew and full knowledge) (NO
conditional element)
Willan v. Willan (England, 1960):
Facts: Husband filed for divorce on grounds of cruelty. He alleged that, throughout
the marriage, his wife pestered him for sex and was violent with him when he
refused it. He said that she cursed at him, and hurt him until he gave in. On the
husbands last night in the house before he left his wife, they had sex. Trial court
said that the sex couldnt count as condonation because the sex itself was cruel,
and held for husband.
Issue: Whether condonation of cruelty eliminates it as a viable ground for divorce.
Holding: Yes.
Reasoning: It is well established that, whatever may be the position of a wife, in
the case of husband the fact of having intercourse with the wife, with full
knowledge of the matrimonial offense of which complaint is made, is conclusive
evidence of condonation by the husband of the wife.
o Court says that all that has been proven in this case is that the wife used
some means to persuade her husband to have sex with her. He was free to
submit or resist. In the case of a husband, due to the logistics of sex, he
could only have done what he did on purpose, and therefore sexual
intercourse on his part must be a voluntary act.
Notes:
38

Resumption of sex by a woman doesnt necessarily constitute condonation

because she is less able to resist than a man is. She may just want to stop
the beating, cruelty, etc.
v. COLLUSION
1. Definition (general): spouses agree to CREATE non-existent
grounds for divorce

Fuchs v. Fuchs (NY, 1946):

Facts: Wife agreed to say she had committed adultery in exchange for fill custody
of their child because her husband wanted a divorce (even though all the facts
pointed to the husband as the adulterer). After a default judgment for the
husband, the wife moves to set aside the judgment.
Issue: Even if you collude with another party, can you set aside the judgment to
litigate on the merits?
Holding: Yes.
Reasoning: Because the state has an interest in the integrity of the marital
relationship, they dont want collusion so re-litigation is permitted. The state has
a general interest in the preservation of the matrimonial status of its citizens.
Notes:
o With no-fault divorce, collusion is almost unheard-of now.
o Zug: Wife agrees because she is afraid, perhaps irrationally, of losing
custody of child because husband says he will fight her for custody
vi. INSANITY
1. In general, insanity is already a defense to desertion, and
can be a defense to infidelity.
2. Standard of proof: preponderance of evidence.
Anonymous v. Anonymous (NY, 1962):
Facts: Husband wants a divorce from wife on the grounds of adultery. Wife says
she is insane and couldnt determine right from wrong.
Issue: Can insanity be a defense to infidelity?
Holding: It can be, but not in this case.
Reasoning: Because the wife resisted the impulse to cheat with her paramour, she
demonstrated a realization of the nature of her conduct and a desire to avoid its
consequences. Thus, she did not meet her burden of proof to overcome the
presumption of sanity.
Notes:
o If wife had been found to be insane, husband in this case wouldve been
stuck with her and her adultery for life.
o Wife didnt take the stand big issue for the court. A lot of these cases are
he said/she said situations, and thus the fact that she didnt tell her side
of the story on the stand goes strongly against her case.
vii. PROVOCATION
1. Alleges that the spouse would not have acted in a certain
manner, BUT FOR the behavior of the other spouse
2. Often used as a defense for physical cruelty admit you did
it, but other spouse made you do it (most common in
adultery)
3. SC: Is a defense, but is pretty much moot because the
defense must be proportional to the action (i.e., if your
spouse cheats on you, it is not proportional to beat her).
39

V.

NO FAULT DIVORCE
A. Background:
i. CA was the first state to recognize no fault divorce in 1969, but
every state had a version of no fault divorce by 1985
ii. Considerations:
1. Irretrievable breakdown of marriage
2. Children
3. Conflict between parties
4. Factual inquiry into marriage
iii. Without no fault, there are fewer divorces
1. The big concern is that divorce is too easy nowadays
2. Between 1970 and 1990, divorce increased about 40%
iv. Technically, there are three types of divorce systems:
1. No fault divorce only
2. Fault and no fault (like SC)
3. Mixed fault and no-fault, with mutual consent (3 states)
arguably strictest form of no-fault
When you go to court, you must go with consent, and
have the plan worked out
v. SC: pretty average on strictness of no-fault divorce
1. Required one year separation is average
vi. Uniform Marriage and Divorce Act:
1. Court MUST enter for a divorce if they determine that the
marriage is irretrievably broken
Irretrivably broken:
i. Lived apart for more than 180 days or more,
OR
ii. Serious discord affecting attitude toward
marriage
Not allowed to deny a finding of irretrievable
breakdown based on the presence of minor children
(cant say no divorce because you have kids)
Several states require mutual consent to get a nofault divorce
B. SC NO-FAULT DIVORCE
i. Residency Requirement
1. Plaintiff or defendant must have resided in the state of SC
for at least ONE YEAR.
2. SC 20-3-30: to institute an action for divorce from the
bonds of matrimony the plaintiff must have resided in this
State at least one year prior to the commencement of
the action or, if the plaintiff is a nonresident, the
defendant must have so resided in this State for this
period; provided, that when both parties are residents of the
State when the action is commenced, the plaintiff must
have resided in this State only three months prior to
commencement of the action.
3. Requirement is one year without cohabitation
4. Voluntariness: both parties must be conscious of separation
even though it is a unilateral decision by one party
5. Separate and apart: must be actual (no such thing as
constructive separation i.e., cant share the house and be
apart)

40

6. Sex during separation: unclear as to whether it resets the 1

year clock or not
7. SC fault divorce dont need a separation
C. Marital Contract re: Agreement to Separate
Massar v. Massar (NJ, 1995):
Facts: Husband and wife had a prenup, and also signed a subsequent contract in
which they agreed not to divorce for any other reason besides an 18 month
separation. Husband moved out, and wife filed for divorce on cruelty grounds.
Husband moved to have complaint dismissed.
o The wife wants a fault-based divorce because she wants a better
settlement she would receive more assets in the divorce. She filed for
divorce right after her husband rejected her suggestion that they split up
the assets 60-40.
Issue: Whether the wife is entitled to review of the agreement for fairness.
Holding: Yes. Review should be on a case-by-case basis. This agreement is upheld.
Reasoning: The standard of review for contracts between spouses is whether the
provision is fair and just according to that cases circumstances. Such
agreement have to be fair and equitable, without fraud, and with no one taking
advantage of the other. None of these factors exist here. The court actually likes
agreements that promote the values of marriage, like this one.
Notes:
o Courts have broad discretion in reviewing marital contracts more so than
regular contracts because marital contracts are different.
o The consideration for the contract in this case: the husband leaves and
the wife gets to stay in the house this is sufficient consideration
o With the case by case approach, there is not a lot of uniformity in case law
D. Marital Contract re: Infidelity
Diosdado v. Diosdado (CA, 2002):
Facts: Husband cheats on his wife as a condition to taking him back, wife
demands a contract that gives her liquidated damages should he cheat again.
They sign the contract, then husband cheats again. Wife wants the liquidated
damages from the contract.
Issue: Is a contract for liquidated damages in the case of sexual infidelity
enforceable?
Holding: No.
Reasoning: The contract is not enforceable because it runs contrary to the public
policy and the statute of no fault divorce since the contracts purpose is to
attribute fault, and the state is a no-fault state, the contract has no lawful
purpose. Contracts which provide for liquidated damages should one spouse
cheat are NOT ENFORCEABLE.
Notes:
o California already has no fault divorce, so this contract was contradicting
the statute and public policy of the state
o Why was the K provision in Massar ok, but this one is not? Because Massar
was a in a state that both fault and no fault divorce.
o Parties can contract for a divorce that the state allows, but not one that it
doesnt allow. (these two cases are inverse).

41

In CA, the wife is only entitled to half of the marital assets in a divroce, so
the provision in the contract giving the wife liquidated damages in excess
of that amount violates the no-fault stance of CA.

E. Tort Claims: Infliction of Emotional Distress

Twyman v. Twyman (TX, 1993):
Facts: Wife filed for divorce and negligent infliction of emotional distress because
her husband wanted her to engage in deviate sexual acts, and she refused
because she had been raped earlier in life. He then had an affair and blamed it on
her. Her NIED claim is based on the affair and the fact that her husband told her
about the affair and blamed it on her. She amended her COA to claim IIED instead
of NIED, and she won.
Issue: Can you claim NIED in a divorce suit?
Holding: No, but can claim IIED.
o Intentional Infliction of Emotional Distress tort (elements):
Defendant acted negligently
Extreme and outrageous conduct
Action caused plaintiff to suffer extreme emotional distress
Reasoning: Wife can allege IIED from within a marriage and can bring the claim
along with a petition for divorce. She can receive damages, but court cannot
consider the torts damages in dividing marital assets. A spouse should not be
allowed to recover tort damages and a disproportionate division of the community
estate based on the same conduct.
o Interspousal immunity no longer exists, so it is not a bar to this tort claim.
Allowing wife to join these claims also supports public policy by preventing
the need to have two trials.
Notes:
o SC also recognizes the tort of IIED and uses the Restatement to define it.
This case is very similar to our law.
o There wouldnt be a double recovery problem in SC in this case because
SC recognizes IIED, but not emotional abuse, as a fault for divorce. Thus,
there cant be double recovery. Cant base the divorce on emotional abuse,
but can file on another ground and raise the emotional abuse before the
judge (to affect ED) and then claim IIED in tort.
VI.

DIVISION OF PROPERTY, ALIMONY, AND CHILD SUPPORT AWARDS

A. Standards for awards:
i. All states currently employ the doctrine of equitable division to
distribute property after divorce.
ii. Equitable division (ED): property acquired during the marriage is
owned jointly (but not necessarily 50/50) by the spouses
iii. Historically:
1. Community property states: divide 50/50 (now 3 CP states
say the split must be 50/50, the others have presumption of
50/50)
2. CL states: divided according to who had legal title (little
regard for equity)
iv. Even today, if one party is the primary breadwinner, the way you
split your income isnt necessarily representative of your ownership
of property (one pays mortgage, one pays household expenses,
etc.)

42

v. The rise of no-fault divorce exacerbated the need for ED because

the innocent party in the fault divorce would have the power over
the guilty party, but that is not a consideration with no-fault
vi. The CL approach is used in the majority of states:
1. 2 approaches:
MINORITY: universal community approach court can
divide all property the spouses own regardless of
when and how it was acquired (only used by a
handful of states and other countries)
MAJORITY: first classify property as separate or
marital, then look at the marital property (all
property acquired during the marriage except that
acquired by gift or inheritance), then court assigns
the separate property to its respective owners, then
splits the marital property
vii. SC uses a third approach equitable allocation:
1. Classify as separate and marital.
2. Divide the marital property (can consider pretty much
anything here)
B. Sources of Funds Rule:
i. General:
1. Non-marital assets: all assets acquired before marriage
2. These assets will be considered marital if the appreciation of
the assets is a result of the acts of either spouse during the
marriage then each gets the percentage he/she put in
ii. SC follows the Source of Funds Rule
iii. Zug: Anything earned during marriage (salary money, etc.) is
marital belongs to both so, if property was bought separately,
only the appreciation is marital, not the actual asset
C. Marital Property Division Standard:
Thomas v. Thomas (GA, 1989):
Facts: Wife gave husband money before they were married. She also paid the
down payment on their home before marriage and many of the initial mortgage
payments. When the trial court was attempting to split their assets they
attempted to reimburse wife for her expenditures pre-marriage, by dipping into a
non-marital asset of husbands, his stock.
Issue: Whether the court should first determine what is marital property before
equally dividing the property.
Holding: Yes. Only the portion of the stock purchased with marital funds can be
apportioned according to ED based on the source of funds rules.
Reasoning: The court adopts the standard for division of property the source of
funds rule. Under this rule, the spouse who contributed nonmarital funds, and the
marital unit that contributed marital funds each received a proportionate and fair
return on their investment.
D. Dividing Property Equitably
Ferguson v. Ferguson (Miss, 1994):
Facts: Wife was awarded property in the divorce settlement that was in her
husbands name but she claims she contributed to the property through her
efforts as a beautician and a housewife.
Issue: Whether wife can claim an equitable interesting the property titled in her
husbands name.
Holding: Yes.

43

Reasoning: A spouse who has made a material contribution toward the

acquisition of property which is titled in the name of the other may claim an
equitable interest in such jointly accumulated property incident to a divorce
proceeding.
Notes:
o Court notes three types of divorce systems: (1) title theory, (2) community
property, and (3) equitable distribution
o SC 20-3-620 (apportionment factors)
o SC 20-3-630 (marital v non-marital property)

E. Financial Misconduct
i. Dissipation: the wasting of marital assets; this is economic fault
due to reduction of marital assets
1. Courts consider dissipation when making an ED; there is a
duty on the owner of the marital property upon divorce to
deal with the property in good faith, which means protecting
the owner from dissipation
2. Decrease:
Must occur for a nonmarital purpose,
While the marriage is already irreconcilably
breaking down.
ii. General:
1. Court will consider the extent to which you depleted family
resources while dividing marital property
2. There is a duty to deal with property in good faith
Siegel v. Siegel (NJ, 1990):
Facts: Husband ran up gambling debts during the marriage, and wants the debt to
be distributed evenly among both himself and his wife (whose signature he forged
in their tax returns) when they are dividing up the marital property. Wife says
debt should be borne by husband alone.
Issue: Whether casino gambling losses incurred pre-filing of divorce complaint,
but after the marriage was irreparably fractured, fall within the matrimonial pot as
a credit to distributable assets, or does it equate with a dissipation of funds to be
borne solely by the one who placed the family treasury at risk?
Holding: The debt should be borne solely by the defendant the debt belongs to
the gambler, and dissipation of property by one party is to be considered when
dividing the property.
Reasoning: Court should consider both contribution and dissolution of marital
property when dividing it during a divorce.
Notes:
o A classic dissipation case occurs when a husband spends money on his
mistress. Wife will almost always get a much more favorable settlement.
Gambling and adultery are the two clear-cut dissipation cases.
o This issue also comes up when you use marital funds to pay for a divorce
lawyer divorce is not a marital purpose.
o If plaintiff can show that spouse incurred debts with a bad purpose in
mind, thats a stronger case.
o Defending a claim against dissipation is usually very hard.
F. ALIMONY
i. Pensions as Marital Property
1. Vested pensions: are marital property subject to division
2. Non-vested pensions: courts are split

44

Some courts think that this un-vested pension is too

speculative
i. But, the trend is to treat non-vested pension
as property
3. Methods of Division:
Present Value approach: a court determines a
fraction of the present value representing the marital
contribution to the accrued pension benefits.
i. Numerator = total number of years the
pension has accrued during the marriage
ii. Denominator = total number of years during
which the employee spouses pension has
acrrued
iii. Non-employee spouse gets a lump sum to offset the amount projected
iv. Problems: this puts a lot of risk on employee
spouse what if it doesnt vest?
Reserved Jurisdiction Approach: court retains
jurisdiction and orders the employed spouse to pay
other spouse a fraction of every pension check
received
i. Prevents uncertainty problems
Percentage Approach award non-employee spouse a
percentage of employee spouses contribution plus
interest
SC RULE: if the gifts are interspousal, they are still
considered marital property.
i. States are split on this. There is an idea that
you wouldnt get the property if you werent
the spouse.
Laing v. Laing (Alaska, 1987):
Facts: Couple was married for 20 years; wife was employed for about 10 of those,
and husband was employed throughout. Upon divorce, the trial court awarded
husband his pension with a present value of $27K and awarded wife offsetting
marital assets. Husband challenges the award.
o Alaska law (majority rule): vested pension and retirement benefits are
subject to division by a divorce court. (Zug: this is the easy situation if
the pension is vested, you know how much its worth and when you will
receive it no concern that you wont end up with the money)
o This law allows the court broad discretion in fashioning a property division
in divorce actions. The statute empowers the trial court to divide all
property acquired during the marriage and to invade separate property of
either spouse if a balancing of the equities so requires.
Issue: Whether nonvested pensions are marital property.
Holding: Yes. Pensions are considered marital property regardless of whether
they have vested or not.
Reasoning: The non-employee spouses contribution to the pension asset is
exactly the same whether the pension be labeled a mere expectancy, or a
contingent future interest (non-employee spouse will recover a share if the
pension is in fact paid out). This court prefers the Reserved Jurisdiction Approach,
in which the trial court retains jurisdiction and orders the employee spouse to pay
to the former spouse a fraction of each pension actually received. The court

45

believes that this approach most closely parallels the societal goals of retirement
benefits generally.
o Property Division Procedure:
What property is available for division
Value of that property
Most equitable means of division
Notes:
o A pension is money that can be earned during the marriage, but if you get
a divorce, it is money that wont be paid out afterward
o Two views: Concern that nonvested pension is too speculative, or
alternatively the concern is that its not fair to wife
o Court says that the problem of whether the pension will vest is a real
problem, but the actual problem is one only of valuation, because she
clearly has a right to the money if it vests
o Zug: the problem with the Reserved Jurisdiction approach is that it leaves
the court involved with the divorce for a long time so divorce isnt
completed indefinitely. What we see here is competing policies between
equity and finality
Notes on alimony:
o Alimony is a support obligation, not a debt or a punitive device (unless you
commit adultery and are not entitled to alimony). However, on the whole,
if you have to pay alimony it doesnt mean youre a bad spouse.
o Alimony is no longer limited to wives either party can receive it
o Temporary/pendent lite alimony awarded during the period (but you
might have to repay alimony in this case if you commit adultery during
this period)
o As a practical matter, alimony is not that common anymore only about
9% of people were receiving it in 2000 trend is to get more as lump sum
in ED, rather than as periodic payments.
o In SC, 90 days of cohabitation will cut off alimony to supported spouse
o Alimony is modifiable based on changed circumstances (land a new job,
etc.). Most common circumstance is employment-related drop in income.
Supported spouse can petition anytime for more money if the
supporting spouse has an increase in income
o Periodic alimony is on the decline, but is still the most commonly awarded
type of alimony in SC
o Growing trend is to replace periodic alimony with rehabilitative alimony
(support until spouse gets back on his/her feet)
o On the whole, alimony has been replaced by ED that way, you get the
money up front
ii. Property Awards
1. Property awards are based upon a sense of right not a
need for support like alimony.
I.e., wife helps husbands get something, then wife
deserves part of the benefits
2. Doesnt end at re-marriage (like alimony would)
3. Not a form of support
4. Advanced degree can be recognized as property IF it was a
concerted family effort.
Concerted Family Effort: did spouse help.?
i. Share the emotional burden
ii. Increased stress
46

iii. Abdicated opportunities

5. Two methods for division:
Percentage Award: award % of present value for
future earnings
i. What they are likely to make (minus) what
they would have made without the degree.
Restitution: Cost to spouse of obtaining the degree
(sacrifice)
i. Note: these are NOT expectation damages for
not being the wife of a lawyer
ii. Only compensates her for her sacrifices in
getting the degree
Postema v. Postema (Mich, 1991):
Facts: Couple married and agreed that she would work as a nurse while he went
to law school. He contributed a little bit to their income by clerking over the
summers. Husband was a successful law student and took a job as a local
attorney. The parties then separated, which the trial court found to be primarily
the fault of husband. The only thing the husband really has of value is his JD,
because hes in debt. The court divided the property, and determined that
husbands law degree was a marital asset subject to division valued the JD at
$80K and awarded her $32K to equalize the shares.
Issue: Should an advanced degree be taken into consideration when dividing
marital property assets?
Holding: Yes. Courts should consider the value of the non-receiving spouses
sacrifice.
Reasoning: Fairness dictates that a spouse who did not earn an advanced degree
be compensated whenever the advanced degree is the end product of a
concerted family effort involving mutual sacrifice and effort by both spouses.
o Concerted family effort: stresses the fact that it is not the existence of an
advanced degree itself that gives rise to an equitable claim for
compensation, but rather the fact of the degree being the end product of
the mutual sacrifice, effort, and contribution of both parties as part of a
larger, long-range plan intended to benefit the family as a whole.
Notes:
o Although both parties may have expected to obtain the fruits of this
degree, damages cannot be awarded purely based on expectations
o Methods of compensating a non-student spouse for an interest in an
advanced degree:
Percentage Share method: focuses on the degrees present value
by attempting to estimate what the person holding the degree is
likely to make in a particular job market and subtracting therefrom
what that person would probably have earned without the degree.
Consider: length of marriage after the degree was obtained,
the sources and extent of financial support given the
degreeholder during the school years, and the overall
division of parties marital property.
Restitution method: examine the sacrifices, efforts, and
contributions of non-student spouse toward attainment of the
degree, and then determine what remedy or means of
compensation would most equitably compensate the non-student
spouse under the facts of the case.
o This holding represents the minority position most states have held that
educational degrees do not constitute marital property.

47

SC follows the Postema decision no share in the degree itself, but

do consider the efforts expended in pursuit of the degree.
So, in SC, your spouse does not have an interest in your degree
(Donahue v. Donahue courts are permitted to consider the
contribution of one spouse)
Court is careful not to classify this as alimony because she is selfsupportive (so she cant show that she actually needs support)
Property is an entitlement (ED is a RIGHT) and alimony is based on
necessity

In re Marriage of Wilson (CA, 1988):

Facts: Thomas and Elma were married for 70 months (about 6 years). Elma was
injured 2 years before separation and is permanently disabled, including a mental
disability. Elma was awarded spousal support for two years, then an additional
one year, and now applies for lifetime support. Tom says that the marriage was
too short for lifetime support. Elam says that the court cannot terminate support
when there is evidence that she cannot be self-supporting. Elma appeals an order
terminating her spousal support after 58 months.
Issue: Whether, following a childless marriage of short duration, it was an abuse
of discretion to terminate spousal support even though the supported spouse was
permanently disabled. (Zug: at what time does her ex-spouses obligation to
support her stop being his and become societys?)
Holding: No.
Reasoning: Because this was a short marriage and there were neither minor
children nor any likelihood that the wife would ever be self-supportive, the
support is terminated. As long as the court considers all the applicable factors
and the circumstances of parties, it can use its discretion in deciding how much
and for how long support should be.
The Court considers Civil Code section 4801, which gives 8 factors for
determining spousal support awards:
o Earning capacity of each spouse
o Needs of each party
o Obligations and assets of each party
o Duration of the marriage
o Ability of support spouse to engage in gainful employment without
detriment to dependent children in his or her custody
o The age or health of the parties
o The standard of living of the parties, and
o Other factors which the court deems just and equitable.
Notes:
o Wife cites In re Marriage of Morrison to support her case for not
terminating spousal support court says not applicable because that case
concerns a lengthy marriage of 28 years
G. Child Support
i. The 1988 Family Support Act required that child support guidelines
serve as rebuttal presumptions of the appropriate amount of child
support.
ii. Uniform Marriage and Divorce Act 309 reflects the traditional child
support guidelines. When judges had the discretion to consider
different factors, there were widely divergent results.
iii. In the 1970s and 80s, the federal govt started conditioning a
states ability to receive welfare on their enactment of specific child
support guidelines. Led to more uniformity.
48

iv.
v.
vi.

vii.
viii.
ix.

x.

xi.

1. Judges can generally only deviate from the guidelines upon

a written finding that applying them may be inequitable.
If the parents are underage when their children are born,
grandparents are on the hook for child support.
Some states extend the child support obligation to step-parents if
a step-parent formally adopts the child they do have child support
obligations
Child support obligations are owed by all parents, regardless of
marital status. You owe the money to the child because you are the
parent, not because you were married to the other parent.
However, child support will not be enforced unless you are not
married. The state wont interfere as long as youre not sending
your kid to school in rags.
Recent change in SC: there is no laches defense with regard to
seeking child support you cant lose the right to seek child
support, so you can seek it at anytime, no matter what
In SC, the child support guidelines apply until the parents
combined income reaches $240K after that, the courts will decide
how much they think is appropriate
A court MAY order further education money to be given to child
after the age of 18 if there is evidence that the child can get into
college and would do well, and the parent has the financial ability
to do so. Without which the child may not be able to (solution:
put this in the contract!).
3 models for calculating child support:
1. Income shares model (Child should receive the same
proportion of parental income that he would have received if
the parents lived together - most common, used in SC)
2. Percentage of income (based only on non-custodial
parents income, but usually doesnt come out too
differently)
3. Melson formula (used when parents dont have any
income; allows the parents to first have individual
subsistence and only pay child support over that amount)
Income Shares Method
1. Take the combined total income of the parties, then pro-rate
it in proportion to each parents income. Then pro-rated
shares of child care and extraordinary medical expenses are
added to each parents basic obligation.
2. Based upon the amount of money ordinarily spent on kids in
the US, then adjusted for SC cost of living
3. The custodial parent is assumed to spend the designated
amount. Only the non-custodial parent has to actually write
and account for their share.
Ex: non-custodial parent makes 75K, custodial parent
makes 25K. 100K total income, 20K needed for child.
Non-custodial parent pays 15K, custodial parent pays
5K.
4. Deviations allowed for good cause. Generally:
For extraordinary needs of the child
When parent has such a high income that the child
support may seem excessive amount to give to the
child
Change in parents financial situation

49

Through written K (these are advisory and not

binding on the court, but court will probably use
them if they seem fair and rational)
xii. SC Code: 20-7-852: Child Support Awards
1. rebuttable presumption: amount of the award
which would result from the application of the
guidelines is the correct amount.
2. A different amount may be awarded upon a
showing that application of the guidelines in a
particular case would be unjust or inappropriate. The
court shall make specific, written findings of those
facts upon which it bases its conclusion supporting
that award. These must include a justification of why
the order varies from the guidelines.
3. Application of these guidelines to an existing child
support order, in and of itself, is not considered a
change in circumstances for the modification of that
existing order, except in a Title IV-D case.
4. Factors (may be possible reasons for deviation
from the guidelines or in determining whether a
change in circumstances has occurred which would
require a modification of an existing order):
a. educational expenses
b. equitable distribution of property;
c. consumer debts;
d. families with more than six children;
e. extraordinary medical expenses
(noncustodial or custodial parent);
f. mandatory deduction of retirement pensions
and union fees;
g. support obligations for other dependents
living with the noncustodial parent or
noncourt ordered child support from another
relationship;
h. child-related extraordinary medical
expenses;
i. monthly fixed payments imposed by a court
or operation of law;
j. significant available income of the child or
children;
k. substantial disparity of income in which
the noncustodial parent's income is
significantly less than the custodial parent's
income, thus making it financially
impracticable to pay what the guidelines
indicate the noncustodial parent should pay;
l. alimony
m. agreements reached between parties.
xiii. Modification of Child Support awards
1. Unlike spousal awards, child support awards are never final.
They can always be modified in the case that significant
conditions occur.
2. Two main situations:
Kids situation changes

50

Parents financial situation changes (issue of whether

a parent can petition for this when they voluntarily
take a lower-paying job, which often occurs if they
change careers)
3. Parents can also mutually agree to reduce the payment.
Schmidt v. Schmidt (SD, 1989):
Facts: Wife and husband divorced, and husband stipulated that wife got custody
of their 3 boys. Later, husband sought total custody of the oldest boy and
summertime custody of the other 2 boys. He also moved to modify his child
support obligations. Trial court granted his request for a change in custody and
support. But, calculated the award based on what he had been paying before
and subtracting a child who would now be living with him. Wife contests the
custody change, husband contests the support modification as insufficient.
Issue: Should child support obligation be established according to:
o Obligors net income, and
o The number of children affected, unless there are special circumstances?
Holding: Yes. (Zug: holding of this case is that you cant do the canceling out
you must present the situation to the court and apply the rebuttable presumption)
Reasoning: Court should compare the amount father would pay for 2 children
under the guidelines (according to his net income) against what the mother would
pay for 1 child (the son on the farm) according to her net income. Then, the court
should subtract one from the other to determine the fathers child support
obligations.
o Here, due to the change in custody, husband was only supposed to be
supporting 2 children and wife was to pay support for one. Since wifes net
come was more than husbands, her obligation for one child about equals
what husband is paying wife for the 2 children who remain with her.
Notes:
o Guidelines produce uniformity, but can also result in unfair/disparate
results in particular cases
o SC 63-17-470: rebuttable presumption that the guidelines provide the
correct amount.
o Child support is usually modifiable
o College expenses:
Child support typically ends at the age of 18 college education is
a very common special circumstance that courts will allow for
Another special circumstance is a child who is ill or disabled
There is a year grace period if a child doesnt graduate high
school by the age of 18
Presumption in SC is if the child can pay for college themselves, it
doesnt matter if the parent can help
The support clause should be broad say exactly what you want to
do with the educational support
How could these provisions be unconstitutional? Married people will
not necessarily have to pay for childs college expenses.
In re Marriage of Bush (IL, 1989):
Facts: Husband and wife were married for 2 years. They are both doctors;
husband makes approximately $25K per month and wife makes about $7K per
month. Husband was ordered to pay $800/month in child support, and then to
contribute to the trust fund 20% of his net income (about $30K/year).

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Issue: Whether the child support award is excessive in light of the parties
incomes.
Holding: Yes. The overall award of 20% of net income was excessive for a young
child and constituted an abuse of discretion. The use of the trust as a money
reservoir was also improper.
Reasoning: When the individual incomes of both parents are more than sufficient
to provide the reasonable needs of the parties children, taking into account the
lifestyle the child would have absent the dissolution, the court is justified in
setting a figure below the guideline amount. However, the court must clearly
state the basis for setting a figure below the guidelines, as required by state.
The Act was not intended to create windfalls, but rather, adequate support
payments for the upbringing of the children.
Notes:
o Reasonable basis for setting child support lower: (1) parental income is
extreme, or (2) need of the child standard
o Courts are moving toward asking: what would the childs lifestyle have
been like without the divorce?
o Joint custody usually means joint legal custody not joint
physical custody, but rather equal say in the decision-making process for
the children (where they will go to school, etc.)
o Joint physical custody is fairly rare, especially in SC. We will almost never
give it in a contested divorce because the court assumes that the fighting
parents wont be able to handle this arrangement and having to see each
other frequently. The only way to give joint physical custody in SC is if the
parties can work it out.

Solomon v. Findley (Arizona, 1991):

Facts: Husband and wife filed a joint petition for dissolution of marriage. It
contained a provision which stated the husband would provide educational funds
to the best of his ability for the child through college or until child reaches age of
25. The divorce court approved the agreement and entered it into the decree.
Solomon fought to enforced the decree and filed an order showing cause, which
the court denied because the child was over the age of minority and the court
lacked jurisdiction. Solomon then filed a breach of contract action, which the trial
court dismissed, finding that the doctrine of merger applied in the judgment
(contract claim merged with the divorce dissolution judgment and cant be a
separate action). Solomon appeals, stating that there was no language showing
an intent to merge.
Issue: Does a provision for post-majority education funding merge into the divorce
proceeding or remain a separate actionable contract claim?
Holding: The provision is a separate contract action.
Reasoning: Separate contract action is the better rule because it doesnt muddy
the jurisdiction or extend the jurisdiction of the family court.
Notes:
o Divorcing parents often negotiate a contract to cover post-secondary
education expenses, but enforcing them can be difficult.
o SC: Contempt theory allows family court to enforce these types of
contracts through contempt proceedings.
o SC: eliminated defense of laches with regard to child support can still go
to court to collect
o Solomon demonstrates that courts are much less willing to increase
alimony than child support.

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Zug: there are different forms of punishment; sometimes we can revoke

passports, licenses, etc. but the goal is to get at the people who can pay,
but dont pay

Full Faith and Credit for Child Support Orders: 28 U.S.C. 1738B
The appropriate authorities of each state shall enforce according to its terms a child
support order made consistently with this section by a court of another state, and
shall not seek or make a modification of such an order.
xiv. Modification of Alimony awards
1. General:
Uniform Marriage and Divorce Act 316
i. Modification: maintenance and support
1. Applies only to installments and
subsequent to change
2. Requires: showing changed
circumstances so substantial and
continuing as to make the terms
unconscionable.
ii. Modification: property disposition
1. Not revocable or modifiable UNLESS:
a. Conditions exist that justify
reopening (under laws of that
state)
iii. Termination of provisions:
1. Death
2. Re-marriage (of party receiving $)
3. UNLESS: K says otherwise
Graham v. Graham (DC, 1991):
Facts: Couple divorced after 20 years. Husband was ordered to pay alimony of
$250/week and child support of $375/week along with the mortgage and private
school tuition for the kids. At about the time the judgment was entered, husband
signed a new contract with employer which provided for significant salary
increases (exponential increases throughout the years basically from $100K to
$255K). Wife filed a motion to enforce agreement or for increased alimony and
child support.
Issue: Whether an increase in the non-custodial parents ability to pay can, by
itself, constitute a material change in circumstances sufficient to justify an
increase in support.
Holding: Yes. Reversed.
Reasoning: A material increase in the non-custodial parents income can be the
basis for an increase in child support. Children should benefit from a change in
parental status the childrens station in life should not therefore be fixed
forever to their parents station in life at the time of the divorce. Must
demonstrate a substantial and material change in the conditions and
circumstances of the involved parties since the entry of the divorce decree.
RULE: Basis for modification of a child support order (Standard):
o Material change in:
Either of the parents income (increase or decrease), OR
Needs of the child
Notes:
o Increase in spouses income and alimony:
Left to discretion of trial court

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Can be increased based on income, but is much more rare.

DAscanio v. DAscanio (Conn, 1996):

Facts: Upon divorce, husband was ordered to pay wife alimony of $900/week for
as long as she lives and remains unmarried. They then entered into a written
settlement agreement that modified the terms of the judgment. The modification
agreement provided that that the alimony amount would not be modifiable by
either party except if the wife remarries or cohabitates, as defined by statute, the
alimony would be reduced by half. In return the child support amount should
never be reduced. Wife cohabitated, and husband moved to reduce the alimony
payment by half.
o In order to find cohabitation, the husband had to prove that the wife was
(1) living with the other man, and (2) the living arrangement with him
caused a change of circumstances so as to alter the financial needs of the
wife.
Issue: Once the court finds cohabitation, does it have to enforce the alimony
agreement?
Holding: Yes.
Reasoning: The trial court erred in using its discretion over the terms of the
modification agreement. The courts only job in this situation is to determine
whether there has been remarriage or cohabitation if so, they MUST apply the
terms of the agreement. Modification agreements will be enforced according to
their terms, even if they are unfair.
Notes:
xv. Modification of Child Support
1. Generally, child support agreements are not binding unlike
alimony agreements
2. Modification is subject to:
Change in circumstances, OR
Change in obligors ability to pay.
3. Voluntariness:
Lower paying job (or no job)
i. If you voluntarily lower your earning capacity,
you might not get to modify your child
support
ii. Standard:
1. Acted in good faith, and
2. Did not cause needless harm to the
children.
New Support Obligations: 2nd family
i. Some courts have refused to lower support
payment for new additions
ii. Trend is toward modifying for new children,
however, the state acts in the best interest of
all the children
Ainsworth v. Ainsworth (Vermont, 1990):
Facts: Husband and wife divorced and stipulated that he would pay $70/week in
child support. He then remarried a woman with a son. She filed a motion for
increased support. He wants a reduction in support due to the burden of having a
new family. The trial court allowed him to pay less to his first family said there
was no legal duty to support step children, but the current split was inequitable
regardless.

54

Zug: reason that ex-wife went to court for increased support was because
the law changed Vermont adopted the guidelines. She was getting less
than she shouldve been getting under the guidelines.
Issue: Whether expenses for a second family should enter into the determination
of child support for a preexisting family.
Holding: Yes.
Reasoning: If the court determines that child support based on the guidelines
would be inequitable, it may establish support after considering relevant factors
in the statute. Otherwise, the amount awarded under the guidelines is a
rebuttable presumption.
o The reduction is left to the discretion of the judge in consideration of
equity. Discretion is subject to whether the act was voluntary or now.
Absent sufficient reason, voluntary acts wont support a deviation from the
guidelines.
Notes:
o SC: Stepparent has no obligation to support a stepchild (unless you adopt
them). Grandparents have obligation only if the child is born of their minor
child.
o General rule: if you leave your stepchild, you can end the obligation at any
point
o Vermont uses the income shares model (same as SC)
o Consideration of a second family may make guideline application
inequitable, but doesnt require court to modify
o Court examines the change in circumstances as the result of a voluntary
act general rule is that a significant change in circumstances could justify
a modification in CS, but if that change results from a voluntary act, they
court could not allow that reduction.
o

Little v. Little (AZ, 1999):

Facts: Husband and wife divorced and husband, an Air Force lieutenant, was
ordered to pay child support. A year later, he resigned his commission and chose
to enroll and a full-time law student rather than seek employment. He then
petitioned the court to reduce his child support obligation. Arizona law states that
a court should modify a child support order only if a parent shows a substantial,
continuing change of circumstances.
o Trial court: no change in circumstances; modification request denied. He
voluntarily left employment to further his own ambition and failed to
consider the needs of his children; reduction would be to their detriment.
o App. Ct: Reversed; applied good faith test to determine that he acted
reasonably in voluntarily leaving his employment.
Issue: Whether a non-custodial parents voluntary decision to leave his
employment to become a full-time student constitutes a sufficient change in
circumstances to warrant a downward modification of the parents child support
obligation.
Holding: No.
Reasoning:
o Jurisdictions apply one of three tests to determine whether to modify a
child support order when a parent voluntarily terminates employment:
Good faith test: considers the actual earnings of the party rather
than his earning capacity, so long as he acted in good faith and not
primarily for the purpose of avoiding a support obligation.
Flaws: Test erroneously assumes that a parent will make
decisions in the best overall interest of the family unit, fails

55

to attach sufficient importance to a parents existing

obligation to support children, and finally this test shifts the
burden of proof to the party opposing the reduction to show
that the reason given is merely a sham.
Strict rule test: disregards any income reduction produced by
voluntary conduct and looks at the earning capacity of a party in
fashioning a support obligation.
Flaws: too inflexible because it only considers the parents
earning capacity allows no consideration of parents
individual freedom or of the economic benefits that can
result to both parent and child from additional training or
education.
Intermediate test: balances various factors to determine whether
to use actual income or earning capacity in making a support
determination. (used by this court)
Factors considered:
o Financial impact of parents decision on child
o Overall reasonableness of parents voluntary decision
to terminate employment and return to school
o Likelihood of increasing parents earning potential
o Length of proposed educational program (whether
children are young enough to benefit from proposed
future income)
o Whether parent can finance the obligation while in
school through other resources
o Whether the decision is made in good faith.
Notes:
o National policy trend favors strictly enforcing child support obligations
o SC applies the strict rule test looks at earning capacity (difference in
amount he was making before and the amount he was making afterward)
this is a very inflexible rule
SC will rarely, if ever, allow modification for a change in voluntary
circumstances
With regard to Ainsworth issue (taking on 2nd family obligations)
SC is similar to this decision will look at the fact its voluntary, but
will also look at the question of whether the situation made the
payment inequitable, etc. (little more flexibility; case law is mixed)
In SC, income will be imputed to an unemployed parent, unless
there is a physical/mental disability
The closer a case is to a Little case, the easier the decision is for
the court
o The basis for imputing income is potential income if the parent is
underemployed
o Standard for modification in SC is identical to Little allows modification
upon showing of change in circumstances
VII.

CHILD CUSTODY AND VISITATION

A. 402 Uniform Marriage and Divorce Act:
i. Custody:
1. Factors (all considered in best interest of the child but this
can be uncertain):
Wishes of parents

56

Wishes of child
Interaction with child (parents, siblings, etc.)
Mental and physical health of all involved
Childs adjustment to home, school, etc.
Note: The court shall not consider conduct of a
proposed custodian that does not affect his
relationship with the child.
ii. Moral/Immoral Behavior (not a factor in these determinations):
1. Ex: adultery not a factor unless it directly affects the
childs well-being (must prove it had a direct impact on
child)
2. Ex: sexual orientation wont deny, by itself, a parent
custody
3. In SC: Immoral behavior must be shown to be a detriment to
the child before it will be considered (adultery is not a factor
in the divorce unless it directly affects the child)
Extreme discretion left to the judge. (unlike with
child support decisions because the point of the
guidelines is to make deviation abnormal)
In SC, judges can find that homosexuality weighs
against your level of morality
In SC, the one exception to immorality affecting the
child concerns the mother being incredibly immoral
holding was that a woman (or man) who has literally
no morals is too unfit to get custody of the child. (but
theres also one case that says that 3 affairs is fine).
B. The Best Interest of the Child Standard (defined p.534):
i. 11 Factors:
1. Age, health, and sex of child
2. Primary caregiver before separation
3. Parent with best parenting skills and willingness
4. Parents employment
5. Parents health and age
6. Relationship between parent and child
7. Parents moral fitness
8. Home, school, and community record of child
9. Childs preference (if age appropriate)
10. Parents stability (home and employment)
11. Other relevant factors
ii. Presumption: to affirm trial courts finding absent an abuse of
discretion
iii. Tender Years presumption that mothers are the most fit parents to
get young child (under 5 years old) not legal anymore in any state
iv. Tender Years Replaced by Primary Caretaker presumption
whoever has been the primary caretaker before the divorce should
be able to continue to have custody of that child (so, in most cases,
its women)
v. Psychological Parent doctrine: idea that custody should be based on
childs psychological, not biological, attachments (so child can say
he wants to live with stepmom, grandma, etc. but most states
dont take it that far; use it for visitation)
vi. The Approximation Standard (or past division of parental
responsibility): attempts to image time spent caregiving in intact
family

57

In re Marriage of Carney (CA, 1979):

Facts: Husband and wife separated, and she gave him custody of their 2 sons. He
moved and began living with another woman who basically became the
stepmother and cared for all of them and they had a daughter. Four years after
separation, husband was injured in a jeep accident and became a quadriplegic. A
year later, he filed this action for dissolution of the marriage, and the wife moved
for an order awarding her custody of the boys although she had never
previously visited them or made any contributions to their support. The trial court
ordered that custody be removed from the father and given to the mother.
Issue: Whether the trial court abused its discretion in awarding full custody to the
mother.
Holding: Yes.
Reasoning: The Court examines evidence from the trial court hearing that
indicates that the judges judgment was affected by serious misconceptions as to
the involvement of parents in the purely physical aspects of their childrens lives.
The judges focused strongly on the fathers physical abilities to care for himself
and his sons, giving those considerations priority over the fathers commitment to
his sons.
o Court states that health or physical condition of parent is a factor, but it is
ordinarily of minor importance, and when it is raised it is essential that the
court weigh it with an informed and open mind must view the
handicapped person as an individual and the family as a whole (and
always consider the best interest of the children).
o The stereotype indulged in by the court is false for an additional reason: it
mistakenly assumes that the parents handicap inevitably handicaps the
child. fails to reach the heart of the parent/child relationship.
o Inability to participate physically with the children is not enough of a
changed circumstance to justify the change of custody does not
contravene childrens best interest. Physical disabilities of parents are NOT
a DETERMINATIVE factor.
o A parent is someone who is supportive of their child emotionally and loves
them a physical disability is not enough to override all the benefits the
children can receive from their father.
Notes:
o Technically this case is an initial custody determination, but the court
doesnt look at it that way looking at it as a modification because the
father has had custody (after separation) for so long. Difference: courts
are much more likely to reverse changes in modification in custody as
opposed to initial custody awards (policy: child has already been in a
certain situation for awhile; we dont like to uproot children if the custody
situation is working). As a lawyer, you want to get your client custody in
the beginning.
Hollon v. Hollon (SupCt Miss, 2001):
Facts: After separating, husband moved out and wife had custody of their son.
She took in a roommate who also had a son. The two woman shared a bedroom
and bed, and a friend testified that they were in a sexual relationship, which the
parties deny. Father seeks custody because he does not want his son to live with
the mother if she is in a homosexual relationship. During the trial, wife moved out
of the shared residence. The trial court granted their divorce and gave father
custody, with visitation rights for mom. She appeals.
Issue: Whether sexual orientation of one parent can be used to determine
custody.

58

Holding: No. Homosexuality is not a per se basis for awarding custody.

Reasoning: The court examines all of the relevant best interest of the child
factors. In this case, all the other factors besides moral fitness weigh in favor of
the mother, and the trial court should have considered the moral fitness factor
equally with the other factors. Mom awarded custody, with visitation rights to
dad.
Notes:
o This Court held that it is of no consequence that the mother was having an
affair with a woman rather than a man. Cases also recognize that it may
be in the best interest of a child to remain with its mother even though she
may have been guilty of adultery.
o Courts cant consider: gender bias, race, tender years presumption
(child under age of 5 presumed to need to stay with the mother)

Palmore v. Sidoti (1984):

Facts: Caucasian couple divorced and mother was awarded custody of daughter.
Father filed petition to modify the judgment because of changed circumstances
the mother was then cohabitating with a black man (who she married 2 months
later). Trial court awarded custody to father because wife chose for herself and
her child a lifestyle unacceptable to her father and to society.
Issue: Whether re-marriage to a person of a different race can be a factor in
determining custody.
Holding: No. Race is not a factor in determining child custody.
Reasoning: Racial discrimination is against public policy, and the trial courts
opinion raises important federal concerns arising from the Constitutions
commitment to eradicating discrimination based on race. Private biases may be
outside the reach of the law, but the law cannot, directly or indirectly, give them
effect. The effects of racial prejudice cannot justify a racial classification
removing an infant child from the custody of its natural mother who was found to
be an appropriate person to have custody.
o The trial court did not focus on the parental qualifications of the parties.
The court made no effort to place its holding on any ground other than
race.
Notes:
o This case applies strict scrutiny the compelling govt interest is granting
custody based on the best interest of the child
o Courts have generally held that race can be considered as one
factor among others in child placement, provided that race
doesnt receive an undue emphasis.
o Later cases held that Palmores holding did not extend to the adoption
arena cannot say that a white family cannot adopt a black child under
any circumstance.
Jones v. Jones (SD, 1996): Wife says court awarded custody to father because he is
Native American and they are biracial, so he will better be able to deal with their
needs. This court says that custody was not impermissibly awarded on the basis of
race; it is proper for a trial court, when determining the best interests of a child, to
consider the matter of race as it relates to a childs ethnic heritage and which parent
is more prepared to expose the child to it.
Farmer v. Farmer (Indiana Ct. App, 2003):

59

Facts: Farmer and his wife divorced, and she gained custody of the child. He has
failed to pay child support for some time. The trial court ordered him to: (1) pay
his child support or have his visitation rights restricted, and (2) to visit with his
child during the visitation periods or have his suspended sentence imposed. He
contends this was a an abuse of discretion.
Issues: Can the court condition visitation rights upon the payment of child
support? Can the court force a non-custodial parent to have visitation?
Holding: No to both.
Reasoning: Visitation and child support are separate issues, not to be
commingled.
o Courts may not interfere with visitation rights because the non-custodial
parent has failed to make child support payments.
Court may modify visitation if there was physical child
endangerment or impairment to the childs emotional development
but there was no such finding here.
Public policy: we want parents to visit their children, and this
imposes an additional burden on them (and child will likely benefit
from visitation)
Courts may not force visitation legally, because visitation is a
right, not an obligation. Thus, the court erred in threatening to
impose fathers suspended sentence.
Although parents clearly have a statutory duty to support their
children, no such duty requires them to visit or maintain a
relationship with their children if they choose not to do so.
Notes:
o This case reflects the courts extreme dislike for linking visitation to
payment of child support.
o Visitation is a good thing that we want to encourage, even if the parent
isnt paying child support it is definitely in the childs best interest
(usually) to have visitation with the parent(s).
o Zug: about a third of custodial fathers never see their children again.
C. Child Preference
i. In general, consider:
1. Childs maturity
2. Good reason basis for decision of child
ii. Not controlling, but will consider other factors
iii. SC: childs preference MUST be considered
iv. Age, experience, maturity, and ability to express preference are all
factors to be considered.

McMillen v. McMillen (Penn, 1992):

Facts: Parties divorced, and trial court awarded wife primary custody of the son.
Over the next 6 years, the father sought modification of the order four times. The
son expressed his preference to live with his father, and his father was granted
general custody by the trial court. Upon appeal, the appellate court reversed,
stating that no circumstances warranted a change in custody and that the childs
best interests would not be served simply because he wished it.
Issue: Although not controlling, are a childs wishes an important factor in
determining the childs best interest.
Holding: Yes. There was no abuse of discretion in the amount of weight that the
trial court gave to the childs wishes.
Reasoning: The express wishes of a child are not controlling, but they are an
important factor to be carefully considered. The father is not obliged to
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demonstrate a substantial change in circumstances, he is only required to show

that the modification is in the childs best interest. The childs preferences are
not controlling but the court will look at the reason for the preference, and
evaluate it in light of the childs maturity and intelligence level. The older a child
is, the more weight will be given to his or her preference.
Notes:
o SC: childs preference MUST be considered; age, maturity, etc. are all
factors into the weight afforded to the preference
o 63-15-30: by 16, child is old enough and mature enough that courts
MUST consider their preference. It is error not to consider their
preference.
12 years old is iffy it isnt error to not consider their preference
(11, 12, 13 is the cusp may consider it, but dont have to).
Ages in between: depends on the situation unclear.
o Clear downside to weighing childs preference: placing pressure on child
Garska v. McCoy (WV, 1981):
Facts: McCoy (mother) and Garska (father) had a child out of wedlock. McCoy
received no support during her pregnancy or the first year of the babys life. The
baby developed a health condition and McCoy tried to arrange a legal adoption of
the baby by her grandparents in order to make the child eligible for the
grandfathers medical insurance. Upon learning of the adoption plan, Garska
visited the child for the first time and started sending money. The trial court
awarded custody to Garska because he was better educated, had a better
demeanor, and a better job. McCoy appealed as the mother and the primary
caregiver.
Issue: Should the court disregard the sex of the parents and award custody to the
primary caregiver?
Holding: Yes. The sex of the parent should no longer be a factor in custody
determinations. There was no justification for the trial court to remove custody
from the mother because she was the primary caretaker and he had no previous
emotional interaction with the child.
Reasoning: The controlling presumption is the primary caregiver presumption,
NOT the sex of the parents when the child is of tender years.
o When two parents are equally fit, the primary caregiver presumption does
not apply, and the court will then apply the best interest of the child
standard.
o Primary Caretaker Presumption:
One parent is likely to have a more developed relationship with the
child
To award to a non-caretaker would be disruptive for the child
As long as the primary caregiver achieves minimum objective
standard of care they must be awarded custody
Notes:
o Solomon syndrome idea that the parent who is most attached to the
child will be most willing to accept an inferior bargain (sacrifice alimony
and child support payments for custody)
o Most custody cases involve two good parents. The problem with
individualized hearings is that you have to paint one parent as the bad
parent presumptions solve a lot of problems. The presumptions let
people know the likely outcome of the proceeding so that they dont go to
court and let it get ugly.
o Presumption only applies to fit parents not to unfit parents

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D. Visitation Rights of non-custodial parents

i. Every state has some circumstance under which grandparents can
seek visitation but statutes vary by state
ii. Many states also recognize other family members rights to
visitation (stepparents, siblings, great-grandparents, etc.)
Troxel v. Granville (2000):
Facts: Granville (mother) and Troxel (father) were never married, but had 2
daughters. After they separated, he lived with his parents and regularly brought
the girls to their home for weekend visitation. He killed himself two years later.
The grandparents continued to see the girls regularly, but Granville informed
them shortly after that she wished to limit their visitation to one short visit per
month. The grandparents sued for visitation rights under two Washington
statutes. One statute provides that any person can petition for visitation rights
at any time, and visitation should be granted when it serves the best interest of
the child. Trial court granted their visitation rights (1 weekend per month, 1 week
in the summer, and 4 hours on the childrens birthdays).
Issue: Is the Washington statute unconstitutional (overbroad)?
Holding: Yes. The right to raise your own children is a fundamental right (liberty
interest). A statute that allows non-parents to petition at any time for visitation is
unconstitutionally infringing on these parents rights.
Reasoning: The nonparental visitation statute is breathtakingly broad. The
language effectively permits any third party seeking visitation to subject any
decision by a parent concerning visitation of the parents children to state-court
review.
o This was a plurality opinion rather than a majority opinion, which is
significant because this has caused many states to be reluctant in
following this ruling. Therefore, there is still really no uniform decision
among the states regarding grandparents visitation rights (particularly in
cases like this one).
Notes:
o Zug: the clear holding here is that the decision of a fit parent regarding
who may visit with their child must at least be given some deference
o Brown v. Earnhart (1990): bond between grandparents and child does not
justify carving into time to create visitation rights grandparents are not
entitled to autonomous visitation privileges absent special circumstances
o All states still have grandparent visitation statutes
Middleton v. Johnson (SC Ct. App. 2006: TWEN):
Facts: Mothers ex-boyfriend, whom mother allowed to have visitation with their
wedlock child for over nine years (Even after testing proved he wasnt the
biological father), petitioned for visitation rights. Trial court denied visitation, but
Court of Appeals reversed (saying that ex was the psychological parent).
Issue: What legal standard applies to a third partys claim for visitation of a nonbiological child for whom he claims to have functioned as a psychological parent?
Holding: The family court erred in concluding that the ex was not the childs
psychological parent and erred in finding that he was not entitled to visitation.
Reversed and remanded.
Reasoning:
o Standing: the ex has standing as a third party to bring a custody suit and
the lesser included right to visitation. (Zug: in a custody action, someone
is making the claim that the parent is unfit but with visitation, were not
questioning the fitness of the parent, just rights to visit child)

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Psychological Parent Doctrine: Evidence established that the ex was the

psychological parent of the child because, on a day-to-day basis, through
interaction, companionship, interplay, and mutuality, he fulfilled the childs
psychological need for an adult.
Four-prong test for determining whether a person has become a
psychological parent: (adopted from Wisconsin Court)
The biological or adoptive parents consented to, and
fostered, the partys formation and establishment of a
parent-like relationship with the child; (if fit parent
encourages relationship, cant just cut it off after voluntarily
creating it)
The party and the child lived together in the same
household (restricts class of third parties seeking rights);
The party assumed obligations of parenthood by taking
significant responsibility for the childs care, education and
development, including contributing toward the childs
support, without expectation of financial compensation; and
(protects against claims by nannies, etc. Zug says that
otherwise, nannies could definitely say they were
psychological parents)
The party has been in a parental role for a length of time
sufficient to have established with the child a bonded,
dependent relationship that is parental in nature. (SC has
long emphasized the importance of the degree of
attachment between child and 3P)
Compelling Circumstances: Existed to overcome the presumption that the
mothers decision to deny the ex visitation with the child was in the childs
best interest. Must demonstrate that denying visitation would cause
significant harm to the child.
Court relies on SC case Camburn v. Smith, in which grandparents
successfully petitioned the court for visitation of their daughters three
children over the objection of the childrens mother and her husband.
Grandparents were a stabilizing factor in the childrens lives by the trial
court. Supreme court reversed parents werent unfit, and there were no
compelling circumstances to overcome the presumption that the parental
decision is in the childs best interest.
Distinguished: the circumstances of this case are compelling
enough to meet the evidentiary hurdle 3Ps must overcome when
seeking visitation over the objection of a fit parent.
Example of compelling circumstance: when denying
visitation would negatively impact the child.

Notes:
o SC: Where a legal parent encourages a parent-like relationship between
the child and a third party, the right of the legal parent does not extend to
erasing a relationship between the third party and her child which the
legal parent voluntarily created and actively fostered.
o The court says that Troxel doesnt apply here because its not really on
point (no discussion of psychological parent).
VIII.

Custody Jurisdiction
A. Interstate custody disputes
i. The Full Faith and Credit Clause requires states to give full faith and
credit to the final judgments of other states. Custody decrees,

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ii.

iii.

iv.

v.

however, are NOT regarded as final judgments because the state

court issuing the decree retains jurisdiction to modify it in the best
interest of the child until he/she is 18.
Parental Kidnapping Prevention Act (PKPA): federal statute
that addresses this problem by requiring that states give full faith
and credit to the custody decrees of other states.
1. 28 U.S.C.A. 1738A: mandates that state authorities give
full faith and credit to the custody determinations of other
states, so long as those determinations were made in
conformity with the provisions of the PKPA.
1968 Uniform Child Custody Jurisdiction Act (UCCJA): model
act adopted in all 50 states provides two essential bases for the
exercise of state court custody jurisdiction:
1. Home state jurisdiction
Exists when: (1) a child has lived with a parental
figure for at least 6 months before the custody
proceedings, OR (2) a child has moved from his or
her home state within the last 6 months AND one
parent still lives in that state
2. Significant connection
Exists when: a child and a parent have a significant
connection with a state AND there is substantial
evidence in that state with respect to the appropriate
care for the child.
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA): adopted in 48 states; preserves the two main bases for
jurisdiction contained in the UCCJA. Also provides that a court with
home state jurisdiction has priority over a court with jurisdiction
based on significant connections and substantial evidence with
respect to initial custody determinations.
1. Purpose: revise the law in light of federal enactments and
almost 30 years of inconsistent law
Provides the rules of engagement for when courts
can exercise jurisdiction over an initial child custody
determination
Enunciates a standard of continuing jurisdiction and
clarifies modification jurisdiction
2. Purpose: provides a remedial process to enforce child
custody and parenting-time determinations
Brings a uniform procedure to the law of interstate
enforcement that produced inconsistent results
under the UCCJA
Provides the same uniformity to custody and
parenting-time determinations that has occurred n
interstate child support with the enactment of the
Uniform Interstate Family Support Act (UIFSA).
3. If a court learns that a custody proceeding has been
initiated in another state with jurisdiction under the Act, it
must stay its own proceeding and confer with the other
state. Unless the other state determines that the court that
has contacted it is a more appropriate forum, the latter
court must dismiss its proceeding.
Notes:

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1. These are model codes only (except PKPA) so they must be

adopted by states. Zug thinks within ten years every state
will have adopted them.
Chaddick v. Monopoli (FL, 1998):
Facts: Mother and father divorced in Massachusetts mother got custody of the 2
children and moved to Florida, father moved to Virginia. While father had summer
visitation, he filed a custody petition in VA and an order was entered that month
in VA awarding him custody. Mom hired a VA attorney to contest the VA courts
jurisdiction under UCCJA and FPKPA. Two years later, mom filed a petition in FL
seeking enforcement of the Mass decree. The FL judge called the VA court to
discuss, then dismissed the petition. On appeal the Court of Appeals affirmed,
concluding that the VA court properly assumed jurisdiction (under significant
connection test).
Issue: Whether the trial court erred in determining that FL was not the
appropriate forum for this litigation.
Holding: No.
Reasoning: Mom was clearly seeking to have the FL court overrule the VA courts
decision on jurisdiction and reconsider the VA courts determination of custody
(trying to get a second bite at the apple). The UCCJA attempts to avoid
relitigation of custody decisions of other states in this state. In giving effect to its
purpose, a FL court must defer to a court in another state in a custody dispute if,
at the time a petition was filed in FL, a similar proceeding was pending in a court
of another state exercising jurisdiction in substantial conformity with the UCCJA.
Rules: Determination of whether an evidentiary hearing must be conducted
regarding the issue of another states appropriate exercise of jurisdiction is within
the discretion of the trial judge.
o The parties must be given the opportunity to be present during a FL
judges conversation with a judge of a sister court, but the parties may not
participate in that conversation.
General Rule: When all parties have left the initial state where the order was
entered, the courts usually retain exclusive jurisdiction until the court determines
that the child no longer has a substantial connection to the state.
o If one parent is still in the state, its harder to say that the child doesnt
have a substantial connection to that state.
Court says there are rules the FL court shouldve followed:
o Parties must be given the opportunity to be present during the FL judges
conversation with the judge of a sister court (but parties may not
participate)
o The FL judge must explicitly set forth in the record the reasons for the
judges finding that the sister state was or was not exercising its
jurisdiction in substantial conformity with the UCCJA.
Notes:
o In most cases, having one parent living in the issuing state will allow
continuing jurisdiction over custody proceedings. However, this is not
always the case (maybe when the kids only visit the state one week per
year, etc.)
o Zug: at this point, VA had not enacted the UCCJEA. So home state
jurisdiction did not apply.
o Mom should have gone immediately to Florida, and had the custody
determination registered there.
o There is a simple procedure for registering a custody determination in
another state the advantage here is that you are able to estimate the
risk of childs non-return when child is sent on visitation.

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Process:
Letter to clerk of court requesting registration
Two copies of custody order (one certified), with certification
that to the best of your knowledge and belief the order has
not been modified
Except in DV situation, name and address of person seeking
registration and that of any parent or person acting as a
parent who has been awarded custody or visitation in the
order.

Thompson v. Thompson (1988):

Facts: Mom and Dad divorced initially got joint custody, but this became
infeasible when mom decided to move from CA to Louisiana for a job. She was
then awarded sole custody. 3 months later, she filed a petition in LA state court
for enforcement of the CA custody decree. Two months later, the CA court
entered an order awarding sole custody to the dad (because the CA court had just
reviewed the investigators report on custody). Dad brought this action in CA
district court, seeking to have the LA decree declared invalid and the CA decree
declared valid. The district court granted moms motion to dismiss for lack of
subject matter and PJ. Ct of Appeals affirmed, and now SupCt affirms.
Issue: Whether the PKPA furnishes an implied cause of action in federal court to
determine which of two conflicting state custody decisions is valid.
Holding: No. There is no federal cause of action under the PKPA (federal statute)
to determine the validity of conflicting state custody orders.
Reasoning: The court examines Congress intent in enacting the PKPA which was
to extend the requirements of the full faith and credit clause to custody
determinations doesnt give a whole new COA (because the FF&C clause doesnt
either). The history and purpose of the PKPA was to provide authority for sister
states to give full faith and credit to their respective custody orders. The Act does
not envision the determination of jurisdictional competition in the federal court.
Enforcement was meant to be accomplished in state court. Thus, the suit was
properly dismissed.
Rule: If a state has correctly assumed jurisdiction and issued a custody order
pursuant, all other states must afford it full faith and credit so long as the child
maintains a substantial connection to that state. This state will have sole
jurisdiction no concurrent jurisdiction allowed.
Notes:
o SC will almost NEVER award joint custody in a contested divorce case if
parties cant agree on joint custody, how would parties practice it?
Silverman v. Silverman (8th Cir, 2003):
Facts: Husband and wife moved with their two minor sons to Israel from
Minnesota. Their marriage was failing, but husband refused to allow wife to
remove the children from Israel. When wife and the boys returned to the US for a
vacation, wife filed for legal separation and sole custody of the children. Husband
filed a claim under the Hague Convention for a determination that the boys
habitual residence was Israel. The Convention requires wrongfully removed
children to be returned to their habitual residence. The district court found that
Minn was the habitual residence of the children, and alternatively, even if Israel
was their habitual residence, there was a grave risk in returning the children to
Israel under an exception to the Convention. [District court says that they should
look at parental intent to determine habitual residence].

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IX.

Issue: Whether the district court erred in its habitual residence determination.
Holding: Yes.
Reasoning: The court should have looked at the habitual residence of the
Silverman child at the time their mom removed them from Israel, keeping in mind
that they could only have one habitual residence. Must determine the degree of
settled purpose from the childrens perspective. It is evident that the move to
Israel was supposed to be permanent. Furthermore there is no grave risk of
harm to the children here if they are returned to Israel because Israel is not a
zone of war.
o Court notes: a removing parent must not be allowed to abduct a child and
then complain in court that the child has grown used to the surroundings
to which they were abducted.
Dissent: Majority ignored psychological harm of moving children back to Israel
and only looked at risk of physical harm.
Notes:
o Hague Convention: Removing a child from the country of his/her residence
is unlawful. Requires custody determinations to be made by the country of
the childs habitual residence with the childrens presence to be in that
country absent a risk of grave physical harm to the child. 1 year SOL.
JURISDICTION REGARDING SUPPORT AWARDS
A. State law: The Uniform Interstate Family Support Act
I. Old law: if the state didnt have jurisdiction over a parent, then they
couldnt force that parent to pay child support. Problem: father
could decide to move to another state if he didnt want to pay child
support. Mothers only course of action was to hire a lawyer in the
state where the father moved.
II. SC 20-7-960A: Uniform Family Interstate Support Act
1. UIFSA was promulgated in an effort to correct the problem of
allowing multiple jurisdictions to all have authority to modify
child support orders, resulting in multiple orders which
sometimes created inconsistent obligations.
2. Every states has adopted some form of this act.
3. The state with the most appropriate jurisdiction will govern.
III. SC 20-7-980: Long Arm Statute (SCs equivalent to UIFSA 201)
1. Personal Jurisdiction of family court over nonresident in
support or parentage proceeding
IV. Continuing Exclusive Jurisdiction
1. Even though SC may have CEJ, another state may have
concurring jurisdiction. However, CEJ will trump the other
types of jurisdiction.
2. 20-7-1000: Continuing jurisdiction to modify child support
order; when exclusive; relinquishment of jurisdiction.
3. 20-7-1010: Determination of jurisdiction where multiple
tribunals have issued child support orders.
V. Notes:
1. UCCJEA: bases for SMJ, not PJ.
2. Parties cant waive the right to SMJ.
3. PJ is not an issue with custody but it is THE issue with child
support.

vi. Divisible Divorce

Vanderbilt v. Vanderbilt (1957):

67

Facts: Couple separated; wife moved to NY and husband to NV. Husband filed suit
in NV, whose court issued a decree of final divorce but wife was not served with
process in NV and did not appear in court. She later filed an action in NY praying
for separation and alimony. NY granted the divorce and attached husbands
property in the state. The NY court found that the NV court lacked personal
jurisdiction over the wife and therefore its divorce order had not force and effect
to terminate her right to support.
Issue: Whether NY was obligated to recognize NVs divorce decree.
Holding: No.
Reasoning: A state is obligated to give full faith and credit to a sister states
judgment only where the sister states judgment was entered pursuant to that
states exercise of valid personal jurisdiction over both parties. A court which
lacks jurisdiction over the parties lacks jurisdiction to enter any binding orders.
o For alimony and property issues, court has to have PJ over the defendant.
Rule: If at least one party is domiciled within the state, the courts there can
adjudicate the marital state even if they dont have jurisdiction over the other
party (in this case, the requirement of FF&C exist). However, this is limited to
divorce. If parties want to have asserts/property adjudicated, they have to do it
somewhere that has personal jurisdiction over both parties.
o Zug: sometimes domicile and residence are different
Notes:
o Estin v. Estin: Court held that a NV divorce court, which had no PJ over
wife, had no power to terminate husbands obligation to provide her
support as required in a pre-existing NY support decree.
O Court cant adjudicate the rights of someone who is not before it.
O Ex parte divorce (AKA divisible divorce): only need jurisdiction over one
party (exception to the requirement of needing PJ over both parties), but
still need PJ to adjudicate support claims.
vii. Long-Arm Jurisdiction

Kulko v. Superior Court of California (1978):

Facts: Couple living in NY with two children separated. Wife moved to CA,
husband stayed in NY. Under the separation agreement, children would live with
husband in NY and he would pay $3K/year in child support for the holiday periods
when the children were visiting with wife. Immediately after executing the
separation agreement, wife flew to Haiti and procured a divorce there, and
incorporated the terms of the agreement. She then remarried. Over time, both
children expressed their desire to move to CA with mother, and they did. Wife
then commenced action against husband in CA court, seeking to establish the
Haitian divorce decree as a CA judgment, to modify the judgment to award her
full custody, and to increase her child support payments. Father appeared
specially and moved to quash service of the summons because he was not a CA
resident and did not have minimum contacts (Itnl Shoe) for PJ in CA (for child
support claims). The lower court held that by consenting to his childrens living in
CA, father availed himself of CA law.
Issue: Whether the CA state courts may exercise in personam jurisdiction over a
nonresident, nondomiciliary parent of minor children domiciled within the state.
Holding: No; violation of 14A (due process).
Reasoning: The Court holds that the fathers act of sending his children to CA was
not enough; there is a distinction between personal acts and commercial acts. He
didnt gain any benefit, and had no financial motive, he only wished to preserve
family harmony and honor his childrens preferences. A parent must purposefully

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avail themselves of the benefits of a state before they will be required to

adjudicate children support decisions in a foreign state.
Notes:
O Mom goes to Haiti because Haitian divorces are quickie divorces on the
whole, the US recognizes foreign divorces, but we still need to find that the
plaintiff was domiciled in the other country (not just visiting).
In SC, these divorces usually dont work.
O Under the UCCJEA, NY would still have jurisdiction over the children the
reason CA can have jurisdiction in this case is because father concedes to
the forum as more appropriate. Father is fine with litigating custody in CA,
but doesnt want to modify child support in CA.
O Uniform Interstate Family Support Act (UIFSA) Long arm statute a court
with continuing jurisdiction over child support orders can have its orders
enforced by the parents domiciliary state. Gives original statute
continuing personal jurisdiction over the parties.
Completely replaced URESA.

Child Support Enforcement v. Brenckle (Mass, 1997):

Facts: Couple moved to Alaska and had a child, then obtained a divorce in Alaska.
The father moved to Massachusetts. Under the terms of the agreement, mom got
custody and Dad agreed to pay $500/month for child support (until son reaches
majority age and they will split education expenses) and have visitation. Dad
only made payments for a few months after he moved, but said he stopped
payments because he thought Mom changed her address or didnt need the
money anymore. Mom did not pursue enforcement of the child support
obligations until their son prepared to go to college (13 years of payments). Mom
filed an action in Alaska to recover child support arrearages because she could
not afford to support him in college. Dad did not appear, and default judgment
was entered against him in the amount of $75k. Mom then filed a petition in
Alaska under the Uniform Reciprocal Enforcement of Support Act (URESA),
seeking to establish an enforcement order in Massachusetts. On the date the
district court entered the order, UIFSA comes down as a new law and replaces
URESA. So, which statute applies?
Issue: How can the court enforce the child support order against a father living
outside the home state of Alaska?
Holding: Enforce the Alaska judgment under UIFSA.
Reasoning:
O Purpose of UIFSA: aims to cure the problem of conflicting support orders
entered by multiple courts, and provides for the exercise of continuing,
exclusive jurisdiction by one tribunal over support orders. Under UIFSA,
once one court enters a support order, no other court may modify that
order for as long as the obligee, obligor, or child for whose benefit the
order is entered continues to reside within the jurisdiction of that court
unless each party consents in writing to another jurisdiction.
Court says it was the express intention of the Legislature that UIFSA
be applied retrospectively; its provisions govern any URESA action
that is pending or was previously adjudicated.
Court applies UIFSA to this case; says the none of dads substantive
rights are impaired by proceeding under either statute.
Notes:
O All 50 states have adopted UIFSA; URESA is historical now.
O UIFSA only applies continuous jurisdiction as long as someone is living in
that state. Under UIFSA, if all parties have left the original state, they
must register the court order in the state that has personal jurisdiction

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VIII.

over nonpaying party; enforcing parties cant register order in resident

state unless all parties have moved to one state. Once registered, the
Alaska order is enforceable in Mass just as if the Mass courts had issued it
themselves.
Court: a child does not forfeit the protection of one parent because the
custodial parent does not take immediate measures to enforce delinquent
child support obligations.

Enforcement of Custody Decisions

Wolf v. Wolf (Iowa, 2005):

Facts: A former couple is in a bitter custody battle over their daughter, who is now
an adult. The court originally awarded sole legal custody and primary physical
care to mom. The decree was modified several times. The district court finally
awarded physical custody to dad in Iowa, but the daughter did not return willingly.
He retrieved her, but she went back to her mom is Arizona a month later. Mom
petitioned to modify the decree in Iowa, but did not stick around and left with the
child again for Arizona. The district court then confirmed dads right to custody.
Two years later, he filed this suit to collect damages for tortious interference with
custody.
Issue: Whether dads evidence is sufficient to establish a prima facie case of
tortuous interference, and whether the punitive damages award was excessive.
Holding: Yes, and no.
Reasoning: Mom provided daughter with a means to run away showing a
disregard for dads custodial rights and the emotional harm he would likely suffer.
She also displayed a complete disregard for the Iowa courts.
o Punitive damages are only appropriate when a tort is committed with
either actual or legal malice. Dad was awarded $1 in actual damages and
$25k in punitive damages. Thus, his actual damages award is not an
accurate indicator of the actual harm caused by mom and the actual
harm to the dad was substantial. Punitive damages are reasonable.
Rule: Tortious interference with custody occurs when one who, with knowledge
that the parent does not consent, abducts or otherwise compels or induces a
minor child to leave a parent legally entitled to its custody or not to return to the
parent after it has been left him, is subject to liability to the parent.
o Elements: Plaintiff must show (1) the plaintiff has a legal right to establish
or maintain a parental or custodial relationship with his or her minor child;
(2) the defendant took some action or affirmative effort to abduct the child
or to compel or induce the child to leave the plaintiffs custody; (3) the
abducting, compelling, or inducing was willful; and(4) the abducting,
compelling, or inducing was done with notice or knowledge that the child
had a parent whose rights where thereby invaded and who did not
consent.
Notes:
o Courts have held that damages are not available as a remedy for
interference with the non-custodians visitation rights, on the ground that
recognition of such a right might create a weapon that would escalate
conflict between the parties.
o Zug: punitive awards should probably be higher - $25k punishment is not
going to keep a parent from snatching their kid so in essence, mom won
because she has a better relationship with the daughter.

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Public policy supports the award of punitive damages because they act as
a deterrant courts dont want people to think they can just kidnap their
kids.

United States v. Amer (2nd Cir, 1997):

Facts: Ex-couple were Egyptian citizens and Muslims and married in Egypt. Their
first child was born in Egypt, and their second two children were born in the US
after the family relocated and because citizens upon their birth. After their
marriage began to deteriorate, dad moved out and mom kept the kids, but no
separation or divorce was obtained and no formal custody arrangement was
made. Dad tried to get mom to move them back to Egypt, but she refused. He
kidnapped the kids and took them to Egypt, so mom filed a complaint in NY
seeking custody, which the court awarded and issued a warrant for dads arrest.
Dad then obtained an order from an Egyptian court compelling mom to return
home, and then awarding him custody of the children. Later that year, when
visiting the US, he was arrested in violation of the IPKCA and sentenced to prison
with a term of supervised release, with special condition that he effect the return
of the children to the US.
Issues: (1) Whether the district court erred in refusing to permit dad to argue
Hague Convention defenses, and (2) whether the district courts imposition of a
special condition of supervised release returning the children to the US
exceeded the courts authority.
Holding/Reasoning:
(1) Dad wants the Hague Convention defenses (grave risk to children and
right to an Islamic upbringing/human rights issue), but those are not available
because Egypt is not a signatory of the Convention. Thus, court rules that he
can only use 3 affirmative defenses under the IPKCA acting under a valid
court order, fleeing an incidence of domestic violence, and acting under
circumstances beyond his control. None of these apply here.
o IPKCA was only meant to apply when Convention didnt apply; here the
Convention doesnt apply, so the IPKCA is the only concern.
o Rejecting Hague Convention defenses in the dads prosecution does not
detract from the Convention. Because the Convention is unavailable for
mom to use to return her children, criminal prosecution of dad under the
IPKCA fills the gap.
(2) The return condition does not exceeds the courts authority sentencing
courts have broad discretion to tailor conditions of supervised release. Court
holds that the return condition is closely related to the nature and
circumstances of the offense of child abduction and the history and
characteristics of the dad and therefore the requirement serves the GOAL
of general deterrence.
o Also serves the goal of specific deterrence deters dad both from
committing the offense of unlawful retention of children in Egypt, and
from attempting to kidnap them again after they return to the US.
Notes:
o International Parental Kidnapping Crime Act (IPKCA): bars a parent
from removing a child from the US or retaining outside the US a child who
has been in the US, with the intent o obstruct the other parents right to
physical custody.
o Hague Convention: adopted in order to protect children internationally
from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the state of their
habitual residence, as well as to secure protection for rights of access.

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Convention does not apply when children who habitually reside in

the US (and who are often US citizens) are abducted from the US
and retained in a non-contracting country.
IPKCA was enacted against this backdrop needed to deter parents
from removing and retaining their children in these safe haven
countries, and thus to close the gap left open by the unfortunate
fact that few countries have signed on to the Convention.
No reciprocity concerns under IPKCA (like with Hague), and only
applies to US.

Hendrickson v. Hendrickson (ND, 2000):

Facts: Couple with 4 kids divorced; mom got custody and dad got visitation
because dad traveled a lot for his job and the court found that the children had
developed a better relationship with their mom.
o Two years later, dad filed a motion for change in custody asserting that
mom was alienating the children from him. A GAL was appointed, who
concluded that moms alienating behavior was causing harmful
estrangement between dad and the kids. The trial court then awarded
custody to the county, but the county declined to take jurisdiction. Trial
court said that this is perhaps the worst case of alienation syndrome in
the history of the United States. Court ordered dads support payments to
be placed in escrow and stated that he should still have visitation.
o Parties appealed; court held that the trial court erroneously ordered the
support to be placed in escrow as a sanction against mom (this is bad
because it punishes the kids).
o Dad files another motion to change custody. Trial court awarded dad
custody, with no visitation for a year for mom in the best interests of the
children.
Issue: Whether frustration of visitation can result in a change of custody.
Holding: Yes.
Reasoning: Frustration of visitation can result in a change of custody, but a
change in custody should be used only after all other remedies have been
exhausted. Mom frustrated both the original and subsequent visitation orders
and attempted to alienate the children from their dad. Mom has numerous
opportunities to change her behavior and refused to do so.
o Frustration of visitation alone does not constitute a sufficient change in
circumstances to warrant a change in custody, and a court should first
resort to a more rigid visitation schedule. However, visitation problems
may justify a change in custody when a court finds such problems have
worked against a childs best interests.
o After exhausting other remedies, a change in custody may be the only
method to correct the damages of a particularly stubborn and defiant
custodial parent.
o The children were deprived of contact with their father by mom
withholding visitation rights and the right of the children to
visitation is presumed to be in their best interests.
o Reasons to modify custody:
There has been a significant change in circumstances since the
original decree and custody award;
If so, whether these changed circumstances compel or require a
change in custody to foster the best interests of the child.
Notes:
o Parental Alienation Syndrome: Idea that one parent can turn the
children against the other parent. Child is taught to prefer one parent
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o
o

X.

over another. Child can be diagnosed as having a mental disorder being

brainwashed.
PAS is a debatable medical condition (courts are split on whether
they recognize PAS) AMA has recognized it
Can be considered emotional abuse of child
In this case, the decision to change custody seems motivated more by
punishing the mom than acting in the best interest of the children.
Consideration of the friendly parent: Idea that when considering initial
custody, court should look at the parties opinions of each other (who
would badmouth the other and who would facilitate reconciliation?). If
courts consider this, they may give custody to the parent most likely to
facilitate a relationship with the other parent, even if that parent wouldnt
otherwise be awarded custody.

Enforcement of Child Support

Eunique v. Powell (9th Cir, 2002):

Facts: Pursuant to a federal statute, Eunique was denied a passport for
international travel because she was severely in arrears on child support
payments of over $20k. She argue that there is an insufficient connection
between her breach of the duty to pay child support and the governments
interference with her fundamental right to international travel.
Issue: Whether restricting a moms right to internationally travel due to her failure
to pay child support is constitutional under 5A.
Holding: Yes.
Reasoning: Court uses rational basis review (not strict scrutiny because there is
no implication of 1A concerns). Under RB, the statute is constitutional if there is a
reasonable fit between the governmental purpose and the means chosen to
advance that purpose. In this case, the statute passes the test. The government
seeks to refocus the priorities of deadbeat parents and keep them in the country
so they can pay. Court holds that Eunique has failed to live up to a most basic
civic and even moral responsibility: the provision of support to her own children.
Court orders her priorities for her children must take precedence over
international travel plans.
Dissent: Court should have used strict scrutiny right to leave the country is of
the highest importance. Travel restrictions must be justified by an important or
compelling govt interest and must be narrowly tailored to that end. Passport ban
is also overbroad because it does not take into account those who must travel out
of the country to make a living.
Notes:
o Courts take different approaches to attempting to make deadbeat parents
pay: withholding tax refunds, take away license/passport
o In SC, failure to pay child support is typically handled through contempt
proceedings.
o Purpose of civil contempt is to obtain compliance with the court order
can only be held in civil contempt if it can be shown that you had the
ability to pay, but were not paying. Purpose is to punish parent who just
opted out for whatever reason.
Wisconsin v. Oakley (Wisc, 2001):
Facts: Oakley has nine kids with four different women. He was in arrears of over
$25k, and was convicted under a Wisconsin statute of a felony intentionally
refusing to pay child support. The judge recognized that if Oakley went to prison,
he wouldnt be able to pay child support so he sentenced Oakley to probation,

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during which he cannot have any more children unless he demonstrates that he
had the ability to support them and that he is supporting the children he already
has. App. Ct. affirmed.
Issue: Whether, as a condition of probation, Oakley can be required to avoid
having another child unless he shows that he can support that child and his
current child.
Holding: The probation condition is not overbroad and is reasonably related to the
probationary goal of rehabilitation. The condition is narrowly tailored to serve the
compelling state interest of requiring parents to support their children as well as
rehabilitating those convicted of crimes.
Reasoning: We emphatically reject the novel idea that Oakley, who was
convicted of intentionally failing to pay child support, has an absolute right to
refuse to support his current nine children and any future children that he
procreates, thereby adding more child victims to the list.
o Oakley claims a fundamental right to procreate, which requires a strict
scrutiny analysis. He says that this is a compelling state interest, but not
narrowly tailored enough to serve that interest (because his right to
procreate is effectively eliminated, not just restricted, because he wont
ever be able to pay the support for his kids).
o Oakleys status as a convicted felon means that he has less constitutional
rights so his appeal is analyzed under a lesser degree of scrutiny. If this
wasnt about a convicted felon, strict scrutiny would apply.
Notes:
o The Court applies only a rational basis review because Oakley is a felon;
but the court implies that the condition would pass strict scrutiny.
o Court notes that incarceration would have prevented procreation
regardless
o Zug: we need to be worried about a slippery slope argument here. This
could incentivise people to have abortions in order to keep him out of jail
(goes against public policy).

United States v. Bongiorno (5th Cir, 1997):

Facts: Mom and dad split up in GA and mom got custody of the child dad was a
physician who was required to pay $5k/month in child support. Soon after, mom
and daughter moved to Massachusetts. Dad was found in contempt for failure to
pay upward of $75k in child support. He moved to Michigan and made sporadic
payments then got a new job and his support dropped, which he still didnt pay.
A year later, he was charged with violating the Child Support Recovery Act. He
was criminally convicted, and then the govt commenced a civil suit to enforce the
restitutionary order. He appeals both cases.
Issue: Whether the Child Support Recovery Act is constitutional.
Holding: Yes. Because paying court-ordered child support occurs in interstate
commerce when the obligated parent and the dependent child reside in different
states, the underlying support obligation is subject to regulation under the
Commerce Clause.
Reasoning:
o The Child Support Recovery Act (CSRA): makes willful failure to pay a
past due support obligation with respect to a child who resides in another
state a federal crime.
o A past due support obligation is an amount determined under a state court
order that either has remained unpaid for more than one year or is greater
than $5k. The law subjects violators to many punishments, including
imprisonment, fines, and restitution.

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Court also rejects 10A violation claim it is not applicable to situations in

which Congress properly exercises its authority under an enumerated
constitutional power.

State v. McKnight (SC SupCt, 2003):

Facts: Mom was convicted of homicide by child abuse and sentenced to 20 years.
She gave birth to a stillborn child, and the autopsy showed that the baby died
from the moms overuse of cocaine. The coroner ruled the death a homicide.
Issue: Whether the mom evidenced the requisite criminal intent for conviction.
Holding: Yes.
Reasoning:
o SC Code Ann. 16-3-85(A): a person is guilty of homicide by child abuse if
the person causes the death of a child under the age of eleven while
committing child abuse or neglect, and the death occurs under
circumstances manifesting an extreme indifference to human life.
o Court holds that reckless disregard for the safety of others signifies an
indifference to the consequences of ones acts. It denotes a conscious
failure to exercise due care or ordinary care or a conscious indifference to
the rights and safety of others or a reckless disregard thereof.
o Court determines that the language of the statute does apply to unborn
children the legislature was aware of the opinion in Whitner and yet did
not omit viable fetus from the statutes applicability with it was amended
in 2000. Thus, the legislature did not intend to exempt fetuses from the
statutes operation.
Notes:
o Whitner v. State: it is within the public knowledge that use of crack can
cause serious harm to the viable unborn child.
o By 2005, 32 states permitted wrongful death actions on behalf of a viable
fetus, but fewer states are willing to extend child abuse statutes to protect
fetuses.

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