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Family Law Outline I. Introduction to Family Law A. Family law is based from English common law 1. One person theory a) Historically, men and women become one person for purposes of property. b) The modern view is that women have the right to contract with their husbands and others. (1) Theres also a constitutional issue of discrimination based on gender (quasisuspect class). 2. However, some aspects generate from the civil law. a) Thats why some jurisdictions divide the property using civil law concepts (i.e., community property). B. Basic Constitutional Issues and Doctrines 1. Balancing Tests a) Strict Scrutiny (Used when a fundamental right or a suspect classification is involved) (1) The limit must be necessarily related to a compelling state interest. (a) The law must be narrowly tailored to achieve the least restriction possible. b) Intermediate Scrutiny (Used on quasi-suspect classifications) (1) Law must be substantially related to an important states interest. c) Rational Basis (Used on all other types of social or economic classifications) (1) Law must be rationally related to a legitimate state interest. 2. First Amendment analysis a) Free exercise of religion (1) Government cant limit or interfere with the belief of an individual. (a) However, it can regulate or affect religious practice if there is a compelling interest that outweighs the individuals interest (strict scrutiny test). b) Establishment clause (1) It becomes an issue when the government tries to regulate an activity on sole basis of religion. (a) For example, when the government favors one religion over another. c) Right of Privacy (Substantive Due-Process) (1) Privacy has been found to be a fundamental right falling within the penumbras of the Constitution under the 1 st ,5th ,6th ,9th & 14th amendments. An implied fundamental right is determined if found implicit in the concept of ordered liberty, deeply rooted in this nations history and tradition. (a) Marriage, contraception, procreation, abortion, family relations, child rearing, and child education. (2) Marriage has been included to be a fundamental right, which requires the strict scrutiny analysis. d) Equal Protection (1) General rule is that similarly situated people must be treated similarly. (2) What triggers an equal protection analysis: (a) Government regulation based on classification (i) A suspect class (race, national origin, alienage) will raise strict scrutiny analysis. (ii) An intermediate class (gender, illegitimacy) will raise intermediate scrutiny analysis. (iii) Social & Economic class will raise a rational basis analysis. (b) Infringement on a fundamental right (i) If the government seeks to regulate an express or implied right found in the Constitution, then strict scrutiny analysis applies. e) Procedural Due Process (1) Guarantees the protection of individuals from governments arbitrary acts. (2) First, you must determine whether there has been a government interference of life, liberty or property. (3) Then, whether the individual was given notice and an opportunity to be heard.

II. GETTING & BEING MARRIED A. Regulating Marriage 1. The right to marry has been found to be a fundamental right. Government can reasonably regulate in this area, as long as its narrowly tailored to meet the states ends. a) The regulation must pass strict scrutiny analysis for it to be upheld. 2. Personal relationship between a man and a woman arising out of a civil contract, to which the consent of the parties is essential. a) Maynard v Hill (1) Marriage is more of a mere contract, it is an institution that the maintenance of which the public is deeply interested. B. Alternatives to Marriage 1. Cohabitation a) Contract between unmarried couples to live together and hold property jointly. (1) Common Law Marriages (i) Most states have invalidated common law marriages since the 1900s. (ii) Florida does not recognize common law marriages, but they can be enforced in Florida because of the Full, Faith and Credit doctrine. 2. Possible causes of action: a) Breach of express or implied contract (legal relief) b) Quantum merit (legal relief)

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(1) Recovery for the reasonable value of household services rendered. c) Constructive Trust (legal relief) (1) Determination by the court that one party is holding property that rightfully belongs to another. d) Unjust enrichment (equitable relief) e) Detrimental reliance (equitable relief) f) Action for partition of property ( Fl. Statute 64.011) (1) Allows for partition to occur independent of marriage. However, must show that the party is a tenant in common. 3. Enforcement of Contract a) Courts will enforce express or implied contracts between non-married couples, as long as contract wasnt based on sexual activity. (1) If the relationship is exclusively based on sex, then the contract is invalid and unenforceable. b) Arguments against enforcing the contract: (1) Difficult to enforce a contract that never existed. (2) If the jurisdiction doesnt recognize common law marriages, then the domestic relations law would not cover this type of case. c) Arguments favoring enforcing the contract: (1) This type of case is contract law, not domestic relations law. (a) The parties did not hold themselves as husband and wife; hence not a common law marriage. 4. Domestic Relations Exception to Federal Jurisdiction a) Even if theres diversity of citizenship, the federal courts will not acquire subject matter jurisdiction over divorce, alimony or child support matters. (1) But, if the underlying matter is one of torts or contracts, then the court will listen to the case. C. Getting Married 1. Courtship A. Enforcement of promise to marry (1) Possible causes of actions include: (a) Breach of an implied contract (Implied contract or 3 rd party beneficiary to an express contract) (b) Torts claims (Mental anguish, loss of reputation, humiliation) (2) Florida has abolished these causes of action statutorily ( Fla. Statute 771) (a) Abolishes any tort or contract causes of action for a breach of a promise to marry. (i) Clients only chance is to go to a jurisdiction who recognizes this causes of actions. (3) Measurement of damages (a) Can be proven by showing lost of future job earnings due to emotional damages. (i) However, a plaintiff cant collect on an expectation of social position. B. Recovery of Gifts (1) Inter vivos gifts (a) Gifts that are given while alive. They are unconditional and upon acceptance are irrevocable. (2) Is an engagement ring an unconditional gift? (a) Rings are usually gifts given in contemplation of marriage; hence, there may be a cause of action for the return of it. (i) However, Fla. Statute 771, doesnt mention anything about rings, only for promises to marriage. (a) Florida follows the common law rule laid in Gill v Shively, which states that a ring given in contemplation of marriage must be returned if the engagement is broken and the marriage never takes place. (i) The problem arises when the gift is not a ring, because the court must determine whether it was given in contemplation of marriage or was it just an unconditional gift. (b) In the event of a breakup of a homosexual relationship, then the gift may not

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returnable because the state doesnt recognize homosexual marriage. Therefore, the gift wasnt given in contemplation of marriage. (3) Anti-heart balm statutes (a) Prohibit causes of action related to cases involving the matters of the heart.

2. Annulment - Marriage is invalid from its inception a) Primary reasons for annulment (1) Religious beliefs (2) Social circumstances (i.e., children, social status) b) Void v Voidable Marriages (1) Void Marriages (Void ab initio-from its inception) (a) Needs no formal judicial action or declaration to establish its validity, because it was never a valid marriage; therefore it cant be annulled. (i) Strong offense to public policy. (ii) Marriage can be attacked by 3 rd parties. (iii) Marriage cant be ratified ever, because the legal requirements of it are not met. (iv) It cant be attacked even after the death of one of the parties. (2) Voidable Marriages (a) Requires a formal action or declaration to invalidate the marriage. (i) However, the marriage can be ratified by the conduct of the parties. (ii) Marriage is valid unless is attacked. c) Florida Law (1) Florida has no statutory annulment; must look at caselaw. (a) Bigamy and legal capacity are the only grounds for a marriage to be found void. All other cases are denominated as voidable. d) Putative Marriage Doctrine (1) Provides equitable relief for disadvantaged parties to safeguard the economic interests of a party to a void or voidable marriage who cohabits in good faith belief that the marriage is valid. (a) Only lasts until the putative spouse has knowledge that the marriage is invalid. (2) Some jurisdictions dont follow this doctrine and consider the relationship as a divorce and distribute the assets as such.

3. Formalities of marriages a) Licenses (1) Most states have licensing requirements, but the validity of the marriage will depend on whether the statute is directory or mandatory. (a) Directive statute will suggest the license but not require one. (b) Mandatory statute will require the license. (2) Fla. Statute 741.107 states what are the requirements for marriage. (license and solemnization). b) Ceremony (1) Statutes outline who can perform a marriage ceremony. (a) Generally, no specific form of ceremony is required. (2) If the marriage is valid where made, it will be upheld in any other state, unless it violates strong public policy.

4. Common Law Marriages a) Most jurisdictions do not recognize this type of marriage, including Florida. Only four states allow common law marriages (Alabama, Texas, Utah, Nebraska). (1) However, the general rule is that if the marriage was valid in the state where it was entered, then it will be upheld in any other state (Full Faith and Credit Clause), unless it violates strong public policy. b) Elements necessary to enter into a common law marriage: (1) Capacity (age, competency, unmarried, etc.) (2) Present and mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships. (3) Public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. 5. Legal Eligibility a) Minimum Age

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(1) State legislatures have set an age at which a person is deemed fully competent to get married. Also, they have set an age so a minor can get married with parental consent. (a) Usually, theres no constitutional claim because the state is not prohibiting marriage, rather delaying it. (2) Fla. Statute 741.2050 (a) Requires for any person under 18 years of age to get parental consent for marriage. (i) However, the court can grant permission to a child upon an independent hearing. (b) A child doesnt need to get parental consent if: (i) The child has been previously married (ii) The child is pregnant. (??????) (iii) The child is already a natural parent. b) Kingship (1) Most jurisdictions have adopted laws that restrict or prohibits marriages between closely related family members. (a) Legislatures have included bans on marriages between adopted siblings. (public policy argument) (b) Also, majority of jurisdictions treat half bloods and full bloods equally. c) Physical Incapacity (1) Testing requirements before issuance of license (HIV) (a) Possible constitutional claims of infringement on the right to privacy and the fundamental right to marry. (i) Law must be necessarily related to a compelling state interest. (a) Narrowly tailored or least intrusive. (b) If the law prohibits marriage of a person infected with HIV, then: (i) Possible constitutional claims of due process (right to marry) and equal protection (fundamental right). (c) Person marries without disclosing being HIV positive. (i) Partner can seek annulment of the marriage based on fraud, in addition to a tort claim. (a) Lack of consummation of the marriage is grounds for annulment, but the illness or disease must be incurable. (Physiological and Psychological). (2) Impotency Issues (a) A wife can seek an annulment of the marriage based on impotency, if the impotency is medically declared incurable. (i) However, if the wife marries knowing the impotency problem, and then goes has a child due to artificial insemination, the court may not grant the annulment because she ratified the marriage by having the child. d) Mental Incapacity (1) Capacity relates to the understanding of the nature of entering into the marriage (entering into a contract), and the essential element of marriage. (a) A court can annul a marriage if it determines that the individual was incompetent at the time of the marriage. (i) The individual did not understand the nature of the relationship he was entering into. (2) Court can also annul a marriage on grounds of temporary incapacitation (marriage while drunk). (a) If the person was intoxicated at the time of the ceremony, but afterwards theres no ratification by holding out to be married. 6. Existing Marriages & Valid Agreements a) When a marriage has been dissolved in divorce proceedings, then the presumption is that any subsequent marriage is valid. (1) Therefore, a person that gets a divorce and then remarries, cant attack the validity of the divorce thereafter to free himself up from the second marriage or to inherit from the first marriage. b) Enoch Arden laws (1) Provides for safeguards against bigamy prosecution for spouse who in good faith remarries on belief that first spouse was dead. (a) Some jurisdictions requires the spouse to dissolve the first marriage through divorce before remarrying. 7. Choice Law a) On a dispute of which law should apply on a certain dispute, the state where the proceedings

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are held will look at their choice of law statutes to find out which law will apply for the specific issue in question. D. Husband & Wife 1. Name Change a) The common law rule is that a person can choose whatever name it likes, so long as you dont use it fraudulently. b) A woman is not required to take her husbands name upon marriage. c) Proceedings where a person can get name change: (1) Dissolution of marriage (a) Husband cant compel her wife to retake her maiden name, but may do so if she chooses to do so. (i) Violation of the womans privacy rights. (2) Adoption proceedings (3) Name change proceedings (a) Fla. Statute 68.07 Name Change (4) Holding yourself out with another name. (a) So long as its not fraudulently. d) Changing the name of a child (1) Traditionally, a child born in wedlock takes the fathers name, and a child born out of wedlock takes the mothers name. (a) However, laws have allowed name changes to a completely different name than that of any of the parents. (2) If parent seeks to change childs name after birth (a) Birth certificate must be changed. (b) Best interest of the child analysis (i) Childs preference in light of age and experience. (ii) Effect of name change with parents relationship. (iii) Length of time child has used name. (iv) Insecurity due to change. (v) Motivation of the parent seeking the change. (vi) Difficulties the child may encounter by the change of name. (3) If theres a statute that prohibits name change of a child. (a) No constitutional issue because name change is not a fundamental right. Not deeply rooted in this nations history and tradition. (i) Rational basis analysis (b) Child may have a freedom of speech argument 2. Economic Transactions a) There are no distinctions between a married man and a married woman in the holding, controlling, disposing or encumbering the property. (1) Fla. Statute 708.08 (a) Married woman is empowered to control and manage their separate property.

3. Support a) Most jurisdictions allow woman to seek support upon separation. (1) Florida allows a woman to seek support without seeking divorce. (a) Common law necessaries doctrine: (i) Provides that husband is responsible for the support of his wife. (ii) Necessaries includes food, clothing, electricity, heating bills, etc. (a) Basic needs for ones existence b) Ante-nuptial Debts (1) General rule is that one party is not responsible for the ante-nuptial debts of the other. Fla. Statute 708.05 (a) Unless there was a contract and spouse undertakes the responsibility. But such contract cant be based on sexual activity. 4. Sharing Property a) Most jurisdictions provide that one spouse cant dispose unilaterally of jointly owned property. (1) However, each spouse may have their separate property. (a) Fla. Statute 708.08 (i) Married woman is empowered to control and manage their separate property. b) Most jurisdictions follow an Equitable Distribution system when dividing property between spouses. (1) Under this system, the general rule is that the division of property will be done according to equity and fairness. (a) Both spouses are deemed to contribute to the marriage, even if one stays home and the other one works.

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c) There are a minority of states that follow a Community Property system. (1) In many situations, property will be divided in half after a couple divorces. States that follow this system includes: (a) Washington (b) Wisconsin (c) California (d) Louisiana (e) Idaho (f) Nevada (g) Texas (h) Arizona (i) New Mexico 5. Torts & Crimes a) General rule is that spousal communications are deemed to be privileged. (1) Federal Rule (a) A spouse holds the privilege to refuse to testify adversely against his or her spouse. (b) A spouse cant be neither compelled nor foreclosed from testifying about confidential communications between spouses. (2) Florida Rule (a) The privilege applies only when a crime is committed against a third party. (i) However, the privilege doesnt apply when the crime is committed against the spouse. b) Fla. Statute 741.235 (1) A spouse has the ability to sue for an intentional tort of battery regardless of the marital relationships between the persons. c) Possessory Interest (1) A spouse cant be charged with burglary for entering a jointly owned property when the other spouse is living there after separation but before divorce. The spouse has possessory interest on the property. (a) However, if the separated spouse rents an apartment and the other spouse breaks in, then charges can be presses because that spouse has no possessory interest in the property. d) Domestic Violence (1) Court may grant an ex-parte temporary restraining order if shown that theres an immediate threat of danger. (a) There may be a constitutional claim for a procedural due process violation of the husbands rights to notice and hearing. (i) The court must use a balancing test to determine whether the states interests outweighs the constitutional interest. (a) Private interest (property or liberty) (b) Governments interest (safety) (c) Evaluation of the process due (i) Depends on the gravity of the loss. (ii) What kind of process is reasonable under the circumstances. (2) Florida Proceedings (a) Circuit court (domestic relations division) can grant an ex-parte temporary restraining order that lasts up to 15 days. (equitable proceeding) (i) Anybody can get a temporary restraining order (spouses, boyfriends, girlfriends, friend of friends, etc.), as long as they live in the same dwelling. (ii) Relief can include alimony, child support, removal of the defendant from the property. (a)However, property cant be sold. (iii) If divorce proceedings are instituted afterwards, they will take over the matters.

III.

Ending The Marriage A. Matrimonial Breakdown (Divorce) 1. Historical Perspective a) Does a person that wants to get a divorce entitle to counsel in a divorce proceeding? (1) There may be a constitutional claim of due process (14 th amendment) on an implied fundamental right to access the courts. (a) However, the counter-argument is that the individual has the right to access the court, but its up to the discretion of the court whether you should get counsel free of charge.

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(2) (3) (4) B. Differs from the criminal case argument; Right to Counsel (5 amendment). However, a child has a right to counsel in juvenile delinquency cases under the 14th amendment. Florida Statute 61.16, provides that if one of the parties has the ability to pay for counsel, then the court can order that party to pay for spouses counsel.
th

C.

Types of divorces 1. Fault based divorces a) Fault may impact alimony, division of assets, custody, and child support upon divorce. (1) If one of the parties depleted assets during the separation, that party may receive a smaller share when the assets are divided. (2) Recently courts have granted divorces adjudging both parties with fault. b) Grounds for fault divorces (may also be grounds for annulment) (1) Cruel and inhumane treatment (2) Adultery (3) Alcoholism and Drug abuse (4) Insanity (5) Desertion or constructive desertion (6) Criminal conviction (7) Impotency (8) Non-support (9) Separation by agreement with intent to separate c) Defenses for fault grounds divorces (1) Recrimination (a) Fault of both parties. (2) Condonation (a) One parties forgiveness of the other ones marital misconduct. (i) Could occur expressly by telling the spouse that is OK, or implied by continuing cohabiting in the marital home. (3) Connivance (a) Indirect consent or permission of one person to the commission of an unlawful or criminal act. (4) Collusion (a) Means for the court to deny divorce to persons who fabricate evidence because they want a divorce and have no grounds to be granted one. 2. No-fault based divorces a) This type of jurisdictions will grant a divorce, as long as certain requirements are met. Some of the requirements that this type of jurisdictions require are: (1) Incompatibility (2) Voluntary separation for a specific period of time. (3) Dead marriage, which includes, irreconcilable differences and irretrievably broken. (4) Long-standing absence, leading to the presumption of death. b) In Florida, the requirements are: (1) Irreconcilable differences between spouses. (2) The marriage is irretrievably broken. (3) Six months residency. c) What happens when a person served with divorce papers does not want to get a divorce? (1) The court can order mediation or counseling, but it is not required to do so. (2) In jurisdictions that requires separation for a specific period of time, there must be an intent by one of the parties to a divorce and must clearly communicate it to the other spouse. Jurisdictional Issues 1. These type of issues are not as significant as they used to be because of the number of nofault jurisdictions. However, Florida practitioners must be aware of foreign country divorces due to the areas population. a) Residency Requirements. Florida requires a six months residency before filling for a divorce. (1) Constitutional Issues: (a) Residency requirements for divorces: (i) Due-Process Argument (a) Substantive due-process (i) Fundamental right to a divorce. (ii) No fundamental right to a divorce. (b) Procedural due-process (i) Opportunity to be heard (ii) The residency requirement only delays the opportunity to be heard, it doesnt infringe upon the right. (ii) Equal Protection Argument (a) Suspect Class (i) Not a suspect classification (b) Fundamental Right (i) Divorce is not a fundamental right. (Remember: The test is whether the right is one deeply rooted in our nations history) 2. Ex-parte divorces a) When a state grants a divorce only upon the appearance of one of the spouses. (1) Problem: Procedural due-process argument (a) Notice and opportunity to be heard. (i) If respondent spouse did not get adequate notice, then the divorce may be attacked. (ii) If the respondent spouse received adequate notice, then the ex-parte divorce is enforceable. (2) What if the respondent spouse appears in the forum state to respond to the proceedings.

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Spouses appearance may have an effect of res judicata to argue jurisdictional issues later. (b) However, client may make special appearance to contest courts jurisdiction. (In federal court, you would move to dismiss the action). (i) If the client looses jurisdictional argument, he may appeal to that states appellate court. (a) Problem is that if the client looses, and then leaves the town, then a default judgment can be enter against him. The court can now reach decisions regarding alimony, child support, etc. (c) If the client goes to the forum state to defend on the merits, then he has submitted himself to the jurisdiction of that state. (i) However, there may be residency or domicile requirements issues. b) What if the client doesnt show up at all? (1) The court may grant an ex-parte divorce. (a) However, the court cant decide issues such as alimony, child support, property, etc. (i) If such court decides on these issues, and the ex-spouse comes to Florida to enforce the divorce decree, then client may move to collaterally attack the decree. (a) Florida will only enforce the divorce matter of the divorce decree. c) If the client instead comes to Florida to seek the divorce, he must meet the residency requirement. (a) For this requirement there must be an intent to maintain residency, not just transient establishment to get the divorce and then leave. 3. Foreign Countries Proceedings a) What if couple goes to a foreign country and obtains a divorce without obtaining residency? (1) Under comity principles, the divorce is enforceable. b) What if the spouse gets an ex-parte divorce, but then moves to attack it in another jurisdiction because he doesnt agree with the courts findings? (1) Spouse is collaterally estopped from attacking a divorce decree that he sought in the first place. (2) Same result if husband gets foreign country divorce, then wife seeks alimony in Florida, and husband claims foreign divorce is no good. Economic Issues 1. Alimony (Fla. Statute 61.08) a) Types of alimony: (1) Temporary or alimony pendente lite (a) Designed to provide support for a spouse during the divorce action, along with contribution to attorneys fees and other costs of maintaining or defending the action. (2) Rehabilitative (a) Funds by the spouse to the other to provide the opportunity for the other spouse to become self-supporting. (3) Permanent (a) Indefinite period of support until receiving spouse dies, remarries, or obtain other self-supporting means. (4) Methods of payment (a) Lump-sum (b) Periodic payments b) Factors that determine award of alimony: (1) Standard of living (2) Duration of the marriage (3) Age and physical & emotional condition of each party (4) Financial resources of each party (5) Time necessary for either party to acquire sufficient education or training to enable such party to find employment (6) Contribution of each party to the marriage (7) All sources of income available to either party c) Test to determine the award of alimony (1) There are two requirements that the court must find in determining the award of alimony: The spouses ability to pay and the needs of the receiving spouse. (2) Alimony is also determined based on the standard of living of the couple while married. Therefore, a couple where one of the spouses has a lot of wealth may live on a modest income. d) Modification of Alimony (1) When determining a modification of alimony, the court must find a substantial change in circumstances to grant the modification of alimony. (a) If the award of alimony is given in a lump-sum, this will not have any effect on the decision of the receiving spouse of re-marrying or cohabiting with another person. (b) If wife, after being awarded permanent alimony, moves in with some member of the opposite sex. (i) If the divorce decree is silent, then the other spouse has the burden of proving that there has been a substantial change in circumstances. (ii) It is appropriate to include it in the divorce decree, when the attorneys discuss the settlement agreement. (c) If the year after the divorce, the husbands income triples. (i) It is unlikely that the receiving spouse would get an increase of the alimony award. e) Would adultery has any effect on alimony decision? (a)

D.

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Even if the jurisdiction follows no-fault based divorce proceedings, adultery by either of the spouses may have an effect on the award of alimony. (a) This effect will be determined on a case-by-case basis. f) If the wife is the one with the wealth and the marriage breaks up, then the husband is entitled to alimony on the same basis as the wife would if he was the one with the wealth. (1) Equal Protection issue (a) It would be discriminatory to treat a man in a different way than the wife, where the wife is the one with the ability to pay and he has the need for financial help. 2. Child Support a) Under the common law rule, the husband was primarily liable for the support of the child. (1) However, the Supreme Court has ruled that the responsibility to pay child support cannot be determined by gender, such would be an equal protection violation. b) Key goal of child support: (1) Ensure the economic impact on the children c) Key issues in determining support for the child: (1) Lifestyle to which the child is accustomed. (2) Financial means of each parent. d) Child support is independent from visitation. (1) Therefore, the failure of complying with one will not determine the other. 3. How to evaluate the ability of the parent to pay child support a) Parents Net Income - Total Livable Expenses = Total Capital Resources 4. Evaluation of the payment of child support (Fl. Statute 61.30) a) Child support guidelines have been established to aid the court in determining the child support award. (1) When the monthly income is higher than the maximum amount in the guidelines, then is the maximum plus a percentage. (2) When the monthly income is lower than any amount set in the guidelines, then the court will determine an amount in a case-by-case basis. 5. Modification of Child Support a) Procedurally, move for petition to modify child support award. (1) The burden in Florida and most jurisdictions is a substantial change in circumstances . 6. What about if the supporting parent looses his job? a) He can seek a permanent or temporary decrease of child support. (1) However, the courts will take into consideration the following factors: (a) Other sources of income. (b) Ability to obtain new employment (c) Voluntary vs. Involuntary termination of employment. (i) If voluntary termination, the court will most likely not modify the child support. 7. End of child support payments a) The general rule is that child support ends at the childs emancipation (majority of age), unless the child remains dependent of the family (i.e., disabled, illness, etc.) b) Also, in some jurisdictions, parent may be obligated to pay for the childs education. Florida does not follow this rule because although it would be morally wrong, there is no legal obligation. (1) Some factors to consider in determining payment for post-secondary education includes: (a) If the parties had already agreed on negotiations. (b) Customary for family members to go to college. (c) Current financial status. (d) Type of college (private v public) (e) Childs desire to attend and aptitude. 8. Child support for illegitimate children a) A child born during a marriage is presumed to be the child of the marriage, even if the husband is not the biological father. (1) Once paternity is proven, then the biological father is responsible for the support of the child. b) Support by stepparents (1) A stepparent may be obligated to support a child if the he has been responsible for the child while the marriage was intact. (a) Factors in determining support by the stepparent: (i) Stepparent held himself out as a parent. (ii) Child or biological father relied on stepparents conduct for the nurture and support of the child. (iii) Child would suffer financial harm if the stepparent doesnt provide support. (2) If the biological father is able to support the child, then it is more likely that the court will spare the stepparent from paying. (3) Remember: in custody and support cases, the court will always look to the best interest of the child as the most important factor. Dividing Property (Often regulated by statutes) 1. There are two types of divisions of property a) Equitable distributions b) Community property 2. Key issues in determining division of property a) Distinguishing between marital assets and non-marital assets. (1) The presumption is that property acquired during the marriage is considered marital asset. (2) Non-marital assets include: (a) Inheritance before and prior marriage (b) Property held prior to marriage (c) Retirement pensions that vested prior to marriage b) Determining co-mingled property brought into the marriage (1)

A.

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c) Separation agreements What about college degrees and professional licenses, when one party puts the other spouse through school? a) The general rule is that degrees are not considered a marital asset subject to distribution. (1) However, some jurisdictions take into consideration the persons potential earnings and award the supporting spouse with rehabilitative or reimbursement alimony? 4. Does fault have any effect in the distribution of property? a) The court may take fault into consideration if the spouses actions had any bearing in the depletion of the property prior to the divorce. (1) Floridas standard: whether the actions are ones that shock the conscience. 5. What about property obtained after the divorce? a) Most states set a cut-off date when determining what property is considered for distribution. (1) Most jurisdictions follow that the cut-off date is when the court awards final judgment of the dissolution. (2) Florida sets the cut-off date for either: (a) When the separation agreement was entered, or (b) The date of the filling of the dissolution. 6. What about pension plans? a) The general rule is that vested and non-vested pensions are marital property subject to distribution. (1) Vested means when the employee is entitled to the pension benefits regarding of the relationship between employer and employee. b) Military benefits are also considered marital assets. Agreements 1. Ante & Post nuptial agreements a) The general rule is that theres a presumption of full disclosure of assets prior to the signing any prenuptial or post-nuptial agreements to be enforceable. (1) The burden of proof is with the party seeking to invalidate the agreement. However, theres a rebuttable presumption of non-disclosure in actions of this nature. (a) Factors in determining whether to invalidate a prenuptial agreement: (i) Showing of failure to disclose fully. (ii) Fraud or duress in signing the agreement. (iii) Look for disproportionate assets, making waiver of rights unlikely. b) However, most states follow that in probate proceedings, full disclosure is not required. (1) Public policy argument to not burden marriage between elders that want to keep their property separate. c) What about if the property becomes co-mingled with marital assets? (1) Then separate property may become marital assets subject to distribution. d) What about issues of alimony, child support, and custody? (1) There is disagreement between the jurisdictions regarding the complete waiver of alimony in an agreement. (2) Child support and custody may be included in agreements, but are subject to modification because of the best interest of the child standard. 2. Separation agreements a) The key issue with separation agreements is whether it merges with the divorce decree or whether it is incorporated into the decree. (1) Merger means substitution of rights and duties of the decree for the ones in the agreement. (a) If the agreement is merged into the decree, then the agreement becomes part of the decree and it has no independent legal significance. (b) If the agreement is incorporated to the decree, then it does not become part of the decree and it remains an independent contract. (i) Incorporated agreements have a res judicata impact, which means that agreement provisions cant be modified after the final order has been entered. (a) Party can only try to enforce contract under contract law and not through family law. (2) Determination of whether agreement was going to be incorporated or merged (a) Express clause in the agreement. (b) Intention of the parties. b) What about child support? (1) Court may follow the agreement in determining child support. However, the court has the power to modify child support regardless of whether agreement was incorporated or merged. (a) Standard of substantial change in circumstances c) What about representation of both parties by same counsel? (1) Agreement may still be valid if counsel: (a) Fairly advised both parties regarding salient issues. (b) Fairly advised both parties regarding joint representation. (c) Agreement must be fair. 3. Tax & Bankruptcy Issues a) Taxes (1) The custodial parent (that one that has the child more than half of the time), is entitled to claim the child as a dependent for tax purposes. (a) However, child support cant be deducted by the payor and is not considered as taxable income for the payee. (2) On the other hand, alimony can be deducted by the payor and its taxable income for the payee. (3) Property is not taxable and considered a gratuitous transfer because it does not generate gain or loss. 3.

B.

11
(a) b) However, if the party that keeps the home sells the same and doesnt purchase another property within two years from the sale is subject to capital gains tax.

4.

Bankruptcy (1) Child support and alimony payments are not dischargeable in bankruptcy proceedings. (2) Bankruptcy court has the discretion of staying its own proceedings pending any state ruling regarding the debtor. (3) A party can only discharge its own marital debts. Court doesnt allow to discharge debts where the other spouse has an interest. Enforcement Issues a) Problem: Divorce in the state of Georgia. Parties lived there five years before seeking divorce. Child born out of the marriage. He must pay child support. He stops paying and now owns 13,000.00 in arrearages. He moves to Florida. (1) It can be enforced in Georgia because the divorce decree was entered in Georgia. (a) It can also be enforced in Florida because he now lives in that state. (2) Could seek relief in Georgia for not abiding by the Ga. decree. It can also file lawsuit in Florida for breach and file motion to garnish its wages. (3) How can we be able to enforce the payment of arrearages? (a) You could register the child support order in Florida and seek to enforce it for lack of payment. (i) You could try to enforce the divorce decree and order of arrearages, by giving Florida jurisdiction. (a) He could defend to the proceedings claiming substantial change in circumstances. (i) Inability to pay (ii) Determined by the involuntary reduction of wages. (b) You could moved in Georgia to enforce the child support order and can seek payment of arrearages. If the court determines that he didnt pay, then it will order him to pay. (i) Now, she can go to Florida to enforce the orders. Must file a motion (supplemental proceedings) to enforce the court order. (a) However, he can collaterally attack the orders, but if he looses then hes stuck with the decision. (ii) Now, you could attach his property and even garnish his wages. (4) How can we enforce the on-going lack of payment? (a) Uniform Interstate Family Support Act (UIFSA) (i) Could register the order under this statue and seek enforcement of them in Florida. (ii) He could seek modification, but must prove substantial change in circumstances. (5) What about choice of law? (a) We look at the forum states statutes to determine which law will we use. b) What about if she moves to Florida and he stops paying support, and now she seeks enforcement? Agreement states that she needs to seek permission before moving out of the state. (1) General Rule is that child support and visitation are distinct and cant predicate child support on accounts of visitation. (2) We get an order in Florida to pay support and he doesnt (a) We file for contempt of a court order. (i) Criminal contempt- Violation of court order and penalty is a punishment (fine). (a) Direct- in the presence of the court. (b) Indirect- outside the court. (ii) Civil contempt- Penalty that will continue for as long as the defendant doesnt comply. (a) Preferable one for this type of cases. (b) The contempt must be willful. Because otherwise we would have debtors in prison.

IV.

Having Children A. Legitimacy (bastard) 1. Illegitimate children or non-marital children are children born out of unmarried parents. a) This raises some important issues, such as: (1) Issue of support by the father. (2) Issue of inheritance by the father. (3) Issue of governmental benefits (welfare). (4) Psychological effects on the child. (5) Stigma of the mother. (6) Issue of adoption. b) Rights of illegitimate children (1) Generally, courts have treated illegitimate children as equal as natural children in probate and torts proceedings. (a) However, in cases where the government is the other party to the action, courts have treated illegitimate children different. c) What are the rights of an unwed father who is battling adoption proceedings by the mothers husband versus his? (1) Constitutional issues: (a) Equal protection argument (i) Is there an infringement of a fundamental right (deeply rooted in our nations history)? (a) If there is, then the state must show a compelling interest. (b) Procedural Due-process

12
Whether the father has a fundamental interest of liberty or property? And if so, then what type of process is due? (a) Liberty interest has been found to include the right to care, companionship, and relationship with ones child. (b) The key argument is whether the father had any type of relationship with the child. (i) The general rule is biological parents does not create per se a protected interest. The parent must have a relationship with the child. (c) If the father had a relationship with the child, then he has a liberty interest that is being infringed upon and entitled to a hearing. (c) Substantive Due-process (i) Whether raising a child is a fundamental interest within the penumbras of the right to privacy? (a) Fundamental right must be deeply rooted in our nations history and tradition. (i) Child rearing has been found by the court to be a fundamental right. (b) Therefore, strict scrutiny applies. d) The mere fact that the parents of the child are not marries does not necessarily relieve a natural parent from the responsibility of supporting the child. e) What about if in a divorce proceeding, the father challenges paternity of the child? (1) The general presumption is that a child born out of the marriage is the legitimate children of the parties to the marriage. (2) Father may seek a paternity adjudication to show that the child is not his and thus not responsible for it, if the court finds first that the proceeding wont be detrimental to the child. (a) However, a biological father (party outside the marriage) may not have the right to challenge the presumption of paternity in a marriage. 2. Paternity Issues a) Can a mother have blood tests paid by the state in an action to prove paternity? (1) Constitutional issue of procedural due-process (a) To determine what process is due the court must balance: (Mathews v Eldridge) (i) The private interest at stake. (ii) Risk that the procedure used will lead to erroneous results and probable value of the suggested procedural safeguards. (iii) The governmental interest affected. (b) Since she can prove paternity by other means (testimony or admission by father), then her liberty interest is not a stake and not entitled to the paid test. (i) But if the only way to prove paternity is by having a blood test, then denial of payment by the state would be unconstitutional (procedural due-process). 3. Probate procedures a) Rights of an illegitimate children to recover from natural parent. (1) Statutes determine what are the rights of illegitimate children to recover from the intestate of the natural parent. (a) If the statute requires to prove paternity, then you must find how to do so. (i) The problem is when the statute requires to prove paternity within the fathers life. (b) Some statutes may toll within a number of years after the father dies.. (2) Wills are less complicated because it overrides any statute. Decisions about procreation 1. Contraception, Sterilization a) Can the government regulate the sale of contraceptives? (1) Contraception has been found to be an implied right found under the penumbras of the constitutional rights. (2) Since its found to be a fundamental right, the test to analyze the bill will be a strict scrutiny test. (a) The bill must be necessarily related to a compelling state interest. (3) Theres a difference between medical contraceptives and other kind of contraceptives. (a) The state may have a compelling state interest because of the protection of women of medically prescriptive contraception. b) What if the bill restricts the sale of contraceptives to minors? (1) Then an equal protection analysis may fail because the level of scrutiny will fall to a rational basis analysis and probably upheld. (a) However, if we apply the substantive due-process analysis (right to privacy), then it will raise the level back to strict scrutiny and probably unconstitutional. c) Can the government sterilized or chemically castrate convicted rapists against their will? (1) Equal protection issue: (a) Fundamental right of procreation vs. Compelling state interest for safety and reduction of crime. (i) The law may not be narrowly tailored to achieve its interest and there are other less intrusive ways. 2. Abortion Issues a) Substantive Due-Process argument of right to privacy under the 14 th amendment. (1) Supreme Court decided that the government may not regulate abortions prior to the viability period, but can regulate and even prohibit it after the viability period. (a) Undue-burden test (i)

B.

13
State may enact regulation to further the health or safety of a woman seeking an abortion, so long as the regulation doesnt present an undue burden on the woman seeking the abortion. (b) Regulation requiring consent from husband is unconstitutional. (2) Minors right to an abortion (a) Under the federal constitution, a state may regulate abortions on a minor using the undue-burden test. (i) It means that the minor has a right to privacy from unreasonable government intrusion. (b) Florida expands the right to privacy granting state citizens an express right to privacy, including minors, which have a right to privacy from any government intrusion. Assisted Conception a) There are three types of artificial inseminations: (1) Artificial Insemination Donor (AID) - woman is impregnated with semen from another man not her husband. (2) Artificial Insemination Homologous (AIH) - married woman is impregnated with the semen from her husband. (3) Combined Artificial Insemination (CAI) - married woman is inseminated with semen mixture of her husband and another man. b) Can a man refuse to pay child support upon divorce because wife was impregnated with another mans semen? (1) Most jurisdictions, including Florida, require the parties to enter into a written contract for artificial insemination. If theres a writing, then theres a irrebuttable presumption that the husband is the father of the child. (2) In other jurisdictions, where a written contract is not required, they treat this type of dispute as one of contract. (a) If the agreement existed, the father must prove by clear and convincing evidence that he withdrew his consent to the procedure. (b) Public policy argument is that child born out of a marriage is the child of such husband and wife. Also, we dont want the child to become a states ward. c) What about if the parties arent married? (1) Then, the presumption of paternity doesnt exist, and to succeed, the mother must show that there was a contract and that the father is estopped from rescinding such contract. (a) Other facts can be used to prove paternity, such as if the father holds out to the world that the child is his. (b) A written contract would not matter because the parties werent married, an element required by statute. d) What about custody battle between gay couple that contributed their sperm for insemination of a child? (1) Court can order blood testing to prove paternity and award such party the custody. (2) Does the other party have a constitutional argument of right to privacy (familial integrity)? (a) No, because the courts have never recognized a right to familial integrity for gay partners. e) What about a divorce case where a frozen embryo is in dispute? (1) Courts would look at the agreement and enforce it. (2) If no agreement, then the general rule is to look at the preferences of the parties. But if the parties are still in disagreement, then the court must weigh the interests of both parties. (a) If one of the parties is leaning towards avoiding procreation, courts usually grants those wishes. f) What about the rights of an inmate to artificially inseminate wife outside of prison? (1) Inmates rights are limited due to imprisonment. Surrogate Parent Contracts a) Most jurisdictions will enforce these types of contracts if the parties complied with the statute. (1) Jurisdictions with no statute, must look at case law. b) Who can be a party to the agreement? (1) Usually, the wife of the biological father is not included because she has no rights involved. However, the husband of the surrogate mother is included because he most relinquish his parental rights. (a) Remember the presumption that a child born out of a marriage is presumed to be the child of such husband and wife. c) How can these types of contracts be enforced? (1) Most contracts require payment (consideration) to the surrogate mother for her services. Courts may be unwilling to enforce this because it may violate public policy (baby-selling). (a) However, the contract may state that payment is for expenses, such as medical expenses, food, housing, etc. (2) If contract is drafted using wording from the adoption statute, then courts may be more willing to enforce it. (3) If a party can prove duress or fraud, then the curt will not enforce such contract. d) Public policy issues: (1) Baby-selling. (2) Exploitation of women (3) Benefits by the rich at the expense of the poor. e) Can the court order the biological father to pay child support after it invalidated the surrogate contract? (1) Yes, a mother may change her mind and assert her parental rights. If so, the biological father may be responsible for the support of the child. f) Gestational Surrogate Contract (1) Method in which the surrogate mother is impregnated with the zygote of a married couple. (i)

3.

4.

14
In these cases, the surrogate mother has no genital connection with the baby. Therefore, the biological parents have complete control over the baby. (3) The only argument could be a contract one. C. Parent/Child Relationship 1. Children beyond parental control a) A child that commits an act, which is criminal if committed by an adult, is considered a juvenile delinquent. b) Children in need of supervision (1) Status offenders - acts committed by juveniles that wouldnt be a crime if committed by an adult. (a) Smoking, Drinking, Truancy, Running away. c) Key issues faced by the court: (1) If a child is unwilling to follow parents direction, the court may order mediation to try to reach accord. (a) If the child refuses to go, then he could be found in contempt and institutionalized the kid. (2) The state has a legitimate interest to protect the interests of the child, parent, and society. Raising Children A. Child Abuse and Neglect 1. Statutory in most states. 2. Criminal Child Abuse Statutes a) Key Issues: (1) Are they void for vagueness? (a) Courts will look to whether the statute focuses on the action by the adult or the child. If it focuses on the action by the father, usually will be struck down. b) Notion of family privacy (1) Arguments that the government should stay away from the family matters, or that the state should be more involved in the protection of the child. 3. Steps taken by the abused children statute: a) Report is filled. b) The agency, after proper investigation, can remove the child out of the home, and then provide a hearing, safeguarding due-process rights. (1) The state only needs probable cause to remove the child from the home. (2) The agency can charge the individual with dependency procedures, and still leave the child in the home. c) There will be an adjudicatory hearing, and a disposition hearing. (1) Parents have a right to counsel, in any dependency hearing, and when they are faced with permanent loss of custody of their children. (a) The court must determine whether there would be a permanent termination of parental rights. (i) That means that the right to counsel in dependency cases is not absolute. (b) Supreme Court left it for the states legislatures to determine whether the parents have a right to get counsel in dependency cases. (2) The child doesnt have a right to counsel in either dependency cases or termination cases. (a) However, they have the right to a guardian ad litem. (i) Key issue of whether the guardian must be an attorney. (a) Florida is divided on this issue, because the attorney has an ethical obligation to counsel and assert his clients rights, whereas a non-attorney will look for the best interest of the child. 4. What happens to the children removed from their home a) Foster home-care, group settings, or in the home of an extended family member. (1) These places need licenses from the state, but the training that they get can be different from one place to another. (a) What if the extended family member is poor? (i) This is a key issue because, generally, they are not entitled to state support. b) What about the conditions in these places? (1) High incidence of child abuse and neglect in those places. (2) Sometimes, the agency cant even find the kids in foster care. 5. Can you sue on behalf of a child that is injured, because the state failed to remove the child out of the home? a) The Supreme Court decided that as a matter of constitutional right, theres not a right when the child remains in the home and the agency failed to remove him. (1) But the case is different when the child is removed from the home and then placed in a foster home, and then get abused in the foster care. (a) The rationale is that the kid is now in states protection, hence giving the child a constitutional based claim. 6. Difference between dependency proceedings and termination of parental rights proceedings a) Dependency cases do not automatically terminate parental rights, whereas in termination it does. (1) Only a small percentages of cases that start in dependency cases end up in termination of parental rights proceedings. B. Termination of parental rights 1. Dissolves the parent/child relationship permanent. a) Child may be precluded from inheriting from the father after termination of parental rights, unless state statute says otherwise. 2. Constitutional Issues: a) Due-process argument of familial integrity. (1) State must prove the allegations by clear and convincing evidence before termination is granted. b) Equal protection argument (1) Family life is a fundamental liberty. 3. Grounds for termination (2)

V.

15
Parent voluntarily surrenders parental rights. (1) Cant be withdrawn, unless parent can prove duress or fraud. b) Identity or location of parent cant be ascertained. c) Parents conduct towards the child threatens the life or well-being of the child. d) Parents conduct that endangers the life, health, or safety of the child, and has the opportunity to prevent such conduct. 4. Parents have a right to legal counsel in permanent termination of parental rights. Medical Decision-Making 1. What is the applicable law? a) Must check state statute or the constitution. 2. Constitutional Arguments a) Privacy (1) Fundamental right of privacy of child rearing. (a) Law must be a compelling state interest and narrowly drawn to achieve its interest. (2) The parents rights can be borne by the state if its interest is narrowly drawn and compelling, to the extent necessary to cure the kid. b) Freedom of Religion (1) Is it an impediment to the religious believes of the parents? (2) Free exercise clause of the first amendment (a) Difference between belief and practice. (b) Balance Tests: (i) Interests of the child (ii) Interest of the state (iii) Interests of the parents. (c) The override to the freedom of religion arise at the threat of life injury. 3. Isnt the test a best interest of the child? a) Since this includes a constitutional issue, the states interest must be more than best interest. a)

C.