I) The Modern American Family A) What is a family?

1) Family as a set of personal relationships 2) As an economic unit 3) As a societal institution 4) As a community unit 5) As a moral construct 6) As a cultural construct 7) As a legal unit B) Modern family construct includes nontraditional domestic arrangements and the extended family C) State interest in the family 1) States perspective on family is that it: (a) Promotes community values (b) Sustains population growth (c) Provides and appropriate context for raising children (d) Fosters economic productivity D) 5 different trends: 1) movement from public to private ordering (a) no fault divorceless judiciary involvement (b) ppl can take their private affiars out of public 2) expanding role of government in family affairs (a) FMLA (b) Loving v. VA (c) Divorce, child support, alimonystate regulated 3) Broadening of commitment to equality in family law (a) Family law assuming some posture of equality 4) Emergence of more frequent trans-national issues (a) Law difference in other countries 5) Increased use of extra-judicial avenues in family law disputes (a) Increased mediation, arbitration. II) The American Family Over Time A) Divorce and the Changing Status of Women in 18th Century MA. B) Martin Luther Sermon III) The Burgeoning Number of Transnational Disputes A) Transnational Families 1) Aleem v. Aleem (a) Started with a limited divorce and husband then went to Pakistani embassy and filed for divorce and granted. (b) Pakistani approach was that whatever was in your name was yours after divorcetitle-based distribution. (c) Husbands complaint is that MD court didnt adhere to Pakistani way when granting divorce. (d) Enough contacts with MD for MD to be involved in dispute B) Recognition of Foreign Legal Systems and Religious Traditions

Family Law Outline

1) Awad v. Ziriax (a) The courts shall not look to legal precedents of other nations or cultures. Specifically the courts shall not consider international law or Sharia lawthe amendment (b) The amendment improperly singles out Sharia law. C) Marriage and Immigration Law 1) Contreteras v. Holder (a) To what extent is a definition of family that expresses a preference for immediate family memebers appropriate immigration policy? (b) Couple divorced while wife was in process of getting her green card (c) Court coulnt review bc AG was given sole discretion to make determination and he did not find the marriage credible enoughthough it was a sham marriage. D) International Standards v. Domestic Standards 1) Town of Castle Rock v. Gonzales IV) Legal Form and Family Law A) Should the state assume/maintain a posture of neutrality as to the value of certain family formations or is it the responsibility of the state to protect the primacy of certain formal family structureseg marriage? B) Should the law impose a standard or should the law respond to realities? MARRYING I) Restrictions on who may marry A) Right to marry is a fundamental constitutionally protected riht, but it is not an absolute right. The US Constitution places limits on state regulation of marriage. B) Under substantive due process and equal protection strict scrutiny applies to state action infringing upon fundamental rights. 1) Strict Scrutiny: (a) Applies where law affects a fundamental right or discriminates on the basis of race or national origin. (b) The law must be narrowly tailored to achieve a compelling state interest. 2) Intermediate Scrutiny (a) Applies where the law discriminates on the basis of gender, sex or legitimacy or where the law incidentally burdens free speech (b) The law must substantially serve an important governmental interest. 3) Rational basis (a) Default category (b) The law must be rationally related to a legitimate governmental interest (c) The law cannot be arbitrary or capricious. C) Substantive Due Process and Equal Protection Analysis: 1) Step 1: Identify the state action (eg legislation) 2) Step 2: characterize the nature of the infringement (a) A fundamental right? (b) Differential treatment based on race? (c) Gender? 3) Step 3: Determine the applicable level of constitutional scrutiny

4) Step 4: Analyze (a) Analyze both prongs of each const. test (b) Then, is what the state intends: compelling, important, legit? (i) For state interest make it up. (ii) Ask what is the state trying to achieve? (iii) Then look at whether the law serves those ends? D) Traditional Restraints 1) Incest (a) State has to have a compelling, important, or legitimate state interest for banning a class from marriage. (b) In a lot of incest cases, rational basis applies. (c) In most states, incestuous marriages are void. (d) State v. Sharon H. (i) Issues with marrying inside the family? (1) No biodiversity (2) Economic strainmoney becomes concentrated in a few familities. (ii) Legitimate and good justification for banning incest is to protwect childrenwhen did the attraction start? (1) Dont want to compromise childhoods when an older borther or father is sexually interested in younger girl in family. (iii) Here, it was a half brother and sisterbut the statute says nothing about banning marriage btwn half siblings (1) But court says its clear that the statute means to ban this. (iv) Real issue: whether the effect of half sister being adopted destroys all familiar ties with brother such that marriage is ok? (1) Court says such a literal interpretation is inconsistent with statutes intent. Should be read as eliminating legal ties btwn child and parents only. (v) Marriage was VOID. (e) Back v. Back (i) Guy divorces wife and marries former stepdaughter. Issue is whether she can now be considered his widow and inhereit his estate (ii) Marriage is VALID 2) Age (a) In re J.M.N. (i) State interest in enacting age restrictions? (1) Many statutes have different restrictions for males and females why? Protecting womenmaybe keeping women from having kids at earlier age. But you dont need to be married to give birth so enactment doesnt really achieve goal here. (ii) Void marriage = done, never existed (iii) Voidable marriage = legal justification for making it void but the law is not gonna void it for them. Have to bring it before a court. Not automatically invalid.

(iv) Should age reqmt statute contain exception for when woman is pregnant? (1) State thinks that marriage is best place to raise a child. 3) Polygamy (a) In re Steed (i) State raided polygamy compound and took over 400 children from mothers (ii) Those who werent abused were ordered to be given back to parents (1) Dissenting judge disagreed saying that even those these children werent yet abused, putting them back in environment was opening them up for abuse. (iii) Fundamental state interest in regulating how many ppl you can marry? (1) Seems to go to what state deems is an appropriate environment for kids to grow up in. (iv) State needs to articulate justification for banning polygamy in polygamous relationships where there is no abusewhat is the state interest here? 4) Same Sex Marriage (a) Loving is the case that defines the same sex marriage sentiment (b) Is it a right to marry any person you want or is it a right to marry any person of opposite sex? (c) DOMASaid other states didnt have to recognize the same sex marriges of other statesruns afoul of Full Faith and Credit Clause (d) Goodridge v. Dept of Public Health (i) States asserted interest in prohibiting gay marriage? (1) Court applies rational basis here so state interest just need s to be legit (2) Why does state care? Procreation o BUT, fertility not a condition of marriage and some married ppl dont want kids Child rearing o Arg that man/woman create best envi for children to be raised in o But court says good parenting doesnt turn on sexual orientation only has to do with whether parents are competent. Concentration of resources o State said same sex couples are wealthy and more able to care for themselvestheyre less likely to be dependent upon each other and therefore dont need to marry o Silly arg bc no way you can just say this. (3) MA Supreme court held in 4-3 decision that MA had failed to ID any constitutionally adequate reason for denying civil marriges to same-

sex couples and Court legally recognized the validity of same sex marriages in MA. (e) Perry v. Schwarzenegger (i) Court again applies rational basis here. (ii) Proposition 8 fails to advance any rational basis for singling out gay men and lesbians for denial of a marriage license. (iii) Prop 8 is unconstitutional bc CA has no interest in discriminating against gays in marriage. 5) Transsexuals and Marriage (a) MT v. JT (i) Transsexual marriage held to be valid if person has gone through medical procedure and possesses full capacity to function sexually as that gender and holds herself out as that gender. 6) Other restrictions on marrying or not marrying (a) Mental capacity (i) Remains a widely accepted restriction on who may marry. (ii) As of 2011, 39 states and DC restrict marriage by people with mental retardation E) Constitutionality of Marriage Restrictions 1) Loving v. VA (a) One of states interests in preventing interracial marriage was to prevent mongrel breed of children and preserve purity of white race (b) Court held the law violated equal protection and due processes clauses of 14th amendment. (c) Marriage is funda right bc basic civil rights of man 2) Zablocki v. Redhail (a) WI staute prohibiting a person from marrying if he had unpaid child support obligation was unconstitutional since there were less onerous means of enforcing the child support obligation other than prohibiting marriage per se. (b) State interest? (i) Preserving state resources and protecting children (c) Infringing on right to marry, so arg. Should apply strict scrutiny 3) Turner v. Safley (a) Court says love triangles and self-reliance of females is interest in prohibiting inmates from marrying (b) Seem to apply rational basis and say that the decision to marry is not reasonably related to legitimate penological objectives. (c) Regulation is INVALID 4) Michael H. v. Gerald D. (a) Example of the state always wanting to protect marriage (b) State chooses girls father based on mans relationship with girls mother, not his relationship with girl. (c) the issue of a wife cohabitating with her husband, who is not impotent or sterile is conclusively presumed to be a child of the marriage (d) the marital family is the unit to be protected.

(e) Court dismisses girls due process right and just says she cant have 2 fathers bc there is no tradition for this. II) Restrictions on the Procedure for Marrying A) Rappaport v. Katz 1) What to wear at marriage ceremony? 2) Couple disputed rule that women had to wear certain things 3) Compelling interest? (a) Want couples to take marriage serisouly so have to look nice when get married. 4) Complaint dismissed bc not impt enough for federal judges to decide. III) State of Mind Restrictions (Annulment cases) A) Lester v. Lester 1) Argues that he was coerced into marriagebut he took time to make these documents beforehand 2) Marriage was NOT VOIDED B) Johnston v. Johnston 1) Wife says was defrauded by husband bc after marriage she noticed his drinking problem, lazy, etc 2) Court said this was not fraud so no annulment C) In re the Marriage of Farr 1) Wife only remarried husband bc he told her he was about to die and then he didnt die. 2) Court said this is fraud bc her consent to the marriage was predicated on him saying he was gonna die D) The essence of marriage usually has something to do with procreation so if woman is infertile or is pregnant by someone else before marriage, this can be seen as fraud. IV) Common Law Marriage A) GA doesnt recognize common law marriages in state B) Hargrove v. Duval-Couteil 1) SD recognizes common law marriages of those that had common law marriage in a state that allowed it and then moved to SD. C) Trend has been not to allow common law marriages bc fear of same sex marriages MARRIAGE I) The Traditional Model of Marriage A) Marital Privacy 1) McGuire v. McGuire (a) Wife argues that shes entitled to money for being obident wife andhusbands obligations are to support her and he is not doing his job (b) She couldnt get money unless she was separated from husband B) Gender Roles 1) Graham v. Graham (a) Husband says that they got married pursuant to k in which wife would pay him $300/month to travel with her and now says wife owes him this money

(b) Court invalidated k bc said it changed the marital and gender roles and that this was against public policy initiatives bc not merely a k btwn private parties (c) K said couple wasnt gonna have sex but state said this was illegal (i) State wants marriages to be for procreation. 2) Brandwell v. Illinois (a) In 1873 woman denied admission to IL bar bc man has his roles and woman has hers (b) Rooted in religious belief. II) Challenges to the Traditional Marriage Model A) Economic and Social Changes 1) Does increasing the number of women in the workforce effect family and children? 2) How much family instatbility can you attribute to women in the workforce? B) Constitutional Limits on Sex Discrimination 1) The Nineteenth Amendment 2) The 14th Amendment (a) Orr v. Orr (i) AL alimony statute says husbands, not wives have to pay alimony (ii) Court applies intermediate scrutiny bc equal protection and on basis of gender.but actually looks more like strict scrutiny (iii) State interest? (1) Reinforce family model (2) AL shouldnt have to apply financial assistance to a broken dovorce (3) Compensate women for discrim that disallowed her from asserting herself in workforce (iv) But none of these impt enough so it was held INVALID. (b) United States v. VA (i) VMIs policy against admitting women to program (ii) Justification? (1) Women cant handle it and that will detract from whole experience (2) Legit? Court applied intermediate scrutiny (iii) Court held state did not show any exceedingly persuasive jusitification for withholding women qualified for VMI. (c) US v. Flores-Villar (i) Man brings EP claim based on immigration statute that treats US citizen fathers and mothers differently with respect to out of wedlock children born to non-citizens abroad. (ii) State interests of avoiding stateless children and ensuring a link btwn father, US, and child are important (iii) Passes Intermediate scrutiny. C) Statutory Limits on Sex Discrimination 1) Title VII (a) Hopkins v. Pricewaterhouse III) Encroachments on the Doctrine of Family Privacy

A) The Constitutional Right to Privacy 1) Griswold v. CT (a) Right at issue = marital privacy (b) State interest in punishing those getting contraceptive? (i) No illegitimate births/promiscuous sex (ii) BUT, not giving contraceptive would increase illegitimate births (c) State doesnt relate states goal and the court says it sweeps too broadly and infringes on privacy 2) Eisenstadt v. Baird (a) Wanted to prohibit the use of contraceptive in unmarried ppl. (b) Arg that not OK bc giving married ppl and unmarried ppl different treatment. (c) Court applies rational basis to see: (i) In Griswold, private marriage relationship is a fundamental right (ii) But here, its unmarried ppl so no fundamental right. (iii) Court gets away with applying rational basis bc their not married (d) State interest? (i) Against fornication (ii) For public health (iii) Diminishing number of illegit kids (e) Rationaly related to interst? (i) FAILS rational basis bc the statute is not necessarily gonna prohibit formication, spread of disease or illegit kidsactually seems to do opposite. 3) Roe v. Wade (a) Griswold grounds all jurisprudence dealing with abortion (b) State interest in criminalizing abortion? (i) Safety of mother bc its a medical procedure (ii) Protecting prenatal life (c) Court rejects arg. That fetus is a living person within meaning of const.if it was a person it would have right to life. (d) State interest in mother and fetus is important and legitimate (i) However interest grows to compelling as mother nears term (ii) Becomes compelling interest when: (1) The danger of getting the abortion is the same as the danger of going through childbirth (2) When the fetus becomes viable outside of mom. When these reached, states can go so far as prohibiting abortions except when moms life is endangered. 4) Planned Parenthood v. Danforth (a) Court looks at rights of husband in making women get husbands cnsent before abortion. 5) Planned Parenthood v. Casey (a) Dealt with rules that women had to have 24hr waiting period before abortion and have to get informed consent if woman is minor and married woman have to sign stmt saying they got husbands consent, and reporting reqmts on abortion clinics

(b) SCOTUS only strikes down the husband notification reqmt. (i) Bc women may be involved in violent relationship (c) Undue burden test (i) Unconstitutional to limit womans right to abortion before viability if it imposes undue burden on womans right to abortion. 6) Gonzales v. Carhart (a) New interest in psychological health of woman who decides to have an abortion (b) 2nd and 3rd termpartial birthprocedures banned (c) argument is that women getting these will regret them and have depression afterwards. 7) Bowers v. Hardwick (a) Upheld statute that disallowed consensual homosexual acts 8) Lawrence v. Texas (a) Oral and anal sex ban for allhomo and hetero. (b) Unconstitutional (c) Overturned Bowers B) Domestic Violence 1) Traditional Immunity and Exemption (a) GA Family Violence Act (i) Pretty expansiveincludes many familial relationships 2) Marital Rape (a) GA law provides no martial rape exemption for husbands and married victims have protection equal to other victims (b) New GA spousal privilege law will allow prosecutors to compel victims to testify against their abusers. (c) Some states say it is impossible for a husband to rape his wife (d) Marital rape is difficult to prove or there are lessened sanctions (i) Ex: what if wife said was raped on Wends but had consensual sex on Friday. (e) States hesistant to enact laws that are going to intrude on marriages. 3) Battered Womens Syndrome (a) Evidentiary concept that had to be accepted into scientific circiles in order to have validty in courts. (b) People v. Humphrey (i) Women who say they killed their husband but were acting in self defense benefit from BWS self defense (ii) Pattern of abusive relationship btwn husband and wife and wife shot husbandwife charged with murder and claims self-defense (iii) Lower court allowed jury to consider BWS evidence in deciding whether D actually believed she needed to kill in self-defense. Question in this court is whether the evidence is also relevant on the reasonableness of this belief? (iv) Ultimate judgment of reasonableness is for the jury. (c) R. v. Malott (i) Objective test shouldnt apply to subjective perceptions

4) Legal Responses to Violence (a) Civil Protection Orders (i) MA Abuse Prevention Law (b) Mitchell v. Mitchell (i) Error to vacate abuse prevention order bc even though there was some evidence that wife had some contact with husband, does not suffice to meet husbands heavy burden of showing the order was no longer needed to protect the wife. (c) Ba v. US (i) Ba willfully violated CPO order even though woman consented to seeing him (ii) Court says the parties cant void CPOs and should reject consent as Bas defense. PARENTING I) The Limits of Parental Authority A) Child Neglect and Abuse 1) Roe v. Conn (a) Father of child claims it is being subject to child abuse because mom living with a black man (b) Fundamental right to parent-child relationship so state must have a compelling interest to terminate the relationship (c) Did not find compelling interest here. II) Unmarried Fathers A) Stanley v. IL 1) Children of unwed dad (was never married to their mother and mother then dies) becomes wardens of state and dad says this violates his rights because treats married dads and unwed mothers differently.EP violation 2) Due process violation bc any other parent has to have notice before being deprived of his rights. 3) Liberty interest: parents have const. protected interest in their children fundamental interest. 4) Court says that although there is a state interest in protecting kids it cant assume that the unwed father is unfit and furthermore, taking kids into state depletes tax dollars. 5) Court seems to apply rational basis: (a) No legit jusitification for protecting children by distinguishing btwn biological fathers and legal fathers. B) Lehr v. Robertson 1) Father who did not register with putative father registry now wants to assert his rights when mother and new husband begin adoption petition for child. 2) DP claimhe has a right to notice 3) EP claimgender biasedmother doesnt have to register. 4) Court makes a big deal out of difference btwn established relationship and potential relationship.

(a) Court says cant stand on EP ground if father has no establishined relationship with child. (b) Mere biology does not entitle father to liberty interest 5) Court seems to apply rational basis C) Michael H. v. Gerald D. III) The Extended Family A) Troxel v. Granville 1) Unmarried couple has kids together then separate. Father often brings them to visit with his parents. When Dad dies, mom wants to limit kids visitation with grandparents and grandparents sue 2) Court said it is a parents right to limit who their kids have contact with and this is a fundamental right. 3) But legislature can overcome thisGA has a grandparent visitation staute. IV) Adoption A) Historical Background 1) Best interst of the child standard and were not balancing it with any legal parental interestthe state is the parent. 2) Zainaldin article B) Types of Adoption 1) Transnational Adoption (a) Eleanor P. v. CA dept of Social Services (i) Parents adopt child with unknowlingly serious medical issues and want to send kid back and vacate the adoption (ii) Court says cannot do this bc the statute they use applies only to adoptions that happened in CA and parents adopted this child in Ukraines and did not readopt in CA. (iii) Court has no power to vacate the adoption. C) Standards 1) Childs Best Interest (a) Sonet v. Unknown Father (i) Couple filed petition to adopt kid handed over by unwed moher (ii) But court denied petition to adopt bc found that adoptive mthers advanced age would not be in the best interest of the child. (iii) Age is a legitimate factor to be considered in adoptions especially if the petitioner could not expect to be in good health until the child is emancipated. 2) Race and Ethnicity (a) Petition of R.M.G. (i) White couple competitng for adoption of black child against black grandparents (ii) Race can be relevant in deciding adoption but it must pass strict scrutiny. (iii) State interest = best interest of child (iv) Is putting the kid with grandparents sufficiently precise to fulfill the narrowly tailored to fulfill compelling interest of childs best interest? (v) When race is relevant, the court must make 3 step inquiry:

(1) How each familys race is likely to affect the childs development of a sense of ID, including racial ID (2) How the families compare in this regard (3) How siginificant the racial differences btwn the families are when all the factors relevant to adoption are considered together. (vi) Remand the case to trial court to do this analysis. (b) In 1996, Congress passed legislation that prohibits denying or delaying a childs adoption because of race, color, or national origin of the child or the person seeking to adopt (i) Goes to childs best interest bc isnt it in best interest of child to be adopted rather than remain in child care bc the adptive person was not of the same race? (c) Mississippi Band of Choctow v. Holyfield (i) Issue was ICWA which gives tribes jurisdiction of child custody decisions (ii) SCOTUS held state court impermissibly made child custody determination that should be made by tribal court (1) Congress meant for domicile to have uniform definition (2) Even though twins born off the rez, the were still domiciled there bc thats where their parents were domiciled. 3) Sexual Orientation (a) Arkansas Dept of Human Services v. Cole (i) Attempted to ban adoptions for unmarried ppl engaging in nonmarital sex with their partners (ii) Court applies strict scrutiny and the act fails (b) FL dept of Children and Families v. Adoption of XXG and NRG (i) Should adoption have been denied bc adoptive parent is a homosexual? (ii) No rational basis for the statute that bans gays from adopting. DIVORCE I) Fault grounds and defenses A) There is no fundamental right to divorce B) GA allows determination of fault to come into play in alimony 1) Person who causes dissolution of marriage should get less. 2) But some JDs say fault is not relevant. C) Fault based grounds for divorce 1) Adultery (a) GA statute on adultery: sexual intercourse with a person other than your spouse. (b) Adultery is an offense committed against the institution of marriage so parties cant contract out of it. (c) Capone v. Capone (i) How do you establish an adulterous relationship? (ii) High evidentiary standard (iii) The court did not find enough evidence to say that adultery occurred 2) Desertion

(a) One party must separate from marital cohabitation without provocation and with intent to desert his or her spouse. Party asserting desertion must also prove there were no justifications for the departure and that the deserted party actually wanted the return of the absent spouse (b) Jenkins v. Jenkins (i) Does a spouses refusal to have sex constitute desertion? What about a spouses refusal to speak or interact? (ii) Wife said husband would get drunk and be verbally abusive so she left. (iii) Court said wife was no at fault and did not desert husband because she was justified in leaving. 3) Cruelty (a) Conduct by one spouse that makes continued cohabitation revolting or intolerable. May be emotional or physical but courts are reluctant to allow for lesser offenses to constitute the ground when the marriage is of long duration. (b) Benscoter v. Benscoter (i) Husband alledged that wife was verbally abusive and cruel to him (1) But court thought that wifes illness was to blame for this (2) Cruelty must be significantly abusive (ii) Wife provided a lot of evidence that husband was having an affair so court did not see husband as the victim here (iii) Wife was not at fault for being cruel. (c) Hughes v. Hughes (i) Wife left because husband was mentally cruel to her (ii) Husband attempted to argue that she deserted him (iii) Court said that her cruelty claimed beat his desertion claim. D) Defenses 1) Recrimination (a) If both spouses are guilty of material misconduct, then any fault-based divorce action must be dismissed because traditionally a divorce could only be granted to an innocent spouse (b) Rankin v. Rankin (i) Court find that neither party had grounds for fault divorce because both had done horrible things to the other. 2) Connivance (a) When one spouse procures or consents to the other spouses commission of a marital fault (b) Hollis v. Hollis 3) Condonation (a) The conditional forgiveness of a marital fault by the aggrieved spouse with the understanding that the offense will not be reported. (b) Willan v. Willan (i) Denied a husbands divorce based on cruelty when he had sex with his wife, allegedly at her insistence, on the day the couple separated. (ii) Wife said he condoned sex and court agreed saying there was no cruelty bc he willingly and voluntarily gave into sex.

4) Collusion (a) Fraud upon the divorce court by the husband and wife, commited by their alleging false evidence of a marital offense in order to obtain a divorce. (b) Fuchs v. Fuchs (i) Wife agreed to a default judgment of divorce in exchange for sole custody of child, then later moved to set aside judgment. Court granted her motion based on collusion holding that the state has a strong interest in the regulation of divorce and a collusively obtained divorce attempts to subvert state interest. 5) Insanity (a) Sometimes asserted as defense saying that spouse lacked sufficient capacity to appreciate the wrongfulness of conduct. (b) Anonymous v. Anonymous (i) Wife says she was insane when committed martial wrongs against husband. (ii) Court said that wife has not demonstrated by preponderance of the evidence that she was suffering from mental illness when committed the acts. 6) Provocation 7) Lapse of time from fault II) No fault grounds A) The California Reforms B) The Uniform Marriage and Divorce Act C) In GA you can live in same house when asserting no fault divorce but cant have sex. D) Adjudicating No Fault 1) What constitutes separation? (a) In re marriage of Dowd (i) Marriage could be dissolved even though no physical separation of 2 years occurred because the parties had been living separate and apart for 2 years. 2) What constitutes irretrievable breakdown? (a) Grimm v. Grimm (i) One party wants divorce and husband says statute allowing wife to get a divorce without his consent violates his free exercise rights because its against his religion 3) Contracting around statutory grounds for divorce (a) Massar v. Massar (i) The prenuptial agreement between husband and wife is enforceable where there is no record of physical or mental abuse. III) Access to Divorce A) Divorce is not a fundamental right so a state need only a legitimate reason for it , not compelling. B) Boddie v. CT 1) Should ppl have a constitutional right to divorce as they do to marry? 2) Due process prohibits statute that conditions divorce on ppl paying a certain amount of money.

3) Bc this court was the only way for appellants to obtain a divorce C) Sonsa v. IA 1) IA statute said had to have one year separation period before divorce 2) State interest? (a) So that state doesnt become a divorce milldont want to be the state thats known for quick divorces (b) Seems to apply rational basis and not becoming a divorce mill is a valid interest (c) Passes constitutional muster (d) Dissentdeprivation caused by delay is substantial burden on parites PROPERTY, ALIMONY, AND CHILD SUPPORT AWARDS I) Property Division A) Background and Marital Property Regimes 1) Uniform Marriage and Divorce Act B) The Problem of Characterization in Equitable Distribution 1) What is marital property? (a) Liang v. Liang (i) Are non-vested pension rights a marital asset in determining property division? (b) Postema v. Postema (i) Was husbands law degree a marital asset that should be assessed in value at the divorce? (ii) YESCourt found the law degree was a martial asset and remanded case to determine its value. (c) Elkus v. Elkus (i) When couple married, wifes career was at very beginning but over time she rose in fame and celebrity. Husband claimed he helped her as her voice coach, traveled with her, and put his own career on hold in order to further hers. (ii) Whether a spouses career and/or celebrity status constituted marital property subject to equitable division? (iii) To the extend that husbands contributions and efforts led to an increase in the value of the plaintiffs career, this appreciation was a product of the marriage and subject to equitable distribution (iv) Things of value acquired during the marriage are martial property even though they may fall outside of the scope of traditional property concepts. The statute does not mandate that the thing in question bet transferable, assignable, or salable (v) The nature and extent of the contribution by the spouse seeking equitable division rather than the nature of the career, should be determine whether it is marital property. (d) Wilson v. Wilson (e) Rice v. Rice (i) Credit card debt of $65,000 incurred during marriage by couples adult son without the wifes knowledge of the debt. Apparently husband had

been helping son pay the debt though. Lower court said the debt was marital property and divided it btwn husband and wife (ii) Whether there is an obligation on both parties to pay the debt incurred for an adult child without the knowledge and consent of one of the parties (iii) Neidlinger 4 factors in determining the nature of a debt as either marital or nonmarital: (1) Was the debt incurred for the purchase of marital property? (2) Was the debt necessary to maintin and support the family? (3) What was the extend and participation of each party in incurring or benefitting from the debt? (4) What are the economic circumstances of the parties after divorce to allow for payment of the debt? (iv) Here question is: whether the debt acquired for the benfit of adult child without one parents knowledge or consent is nevertheless a martial debt subject to equitable division bc of the implied benefits a parent receives from helping her child. (v) None of the factors point to the debt being martialesp. cuz son was 38 yrs old and emancipated and no obligation of parent to aid emancipated kid. (vi) REVERSEDtrial court abused discretion in holding debt was equitable divison. C) The problem of fairness: what is equitable? 1) Finan v. Finan (a) Whether a trial court fashioning financial orders in dissolution cases may consider a partys pre-separation dissipation of marital assets? (b) Plaintiff said trial court failed to look at evidence that spouse dissipated marital assets by spending large sums of money prior to the parties separation in awarding alimony and child support payment. (c) Whether transactions that occur prior to the physical separation of spouses may constitute dissipation of marital assets? (i) In order for a transaction to consitiute dissipation of marital assets for purpsoes of equitable distribution it must occur: (1) In contemplation of divorce or separation (2) While the marriage is in serious jeopardy or is undergoing an irretrievable breakdown. 2) Tucker v. Tucker (a) Alleged that wife caused the dissolution of the marriage bc seemed to have affair with sister in laws widower. As a result, husband got majority of marital assets. (b) Marital misconduct should not serve as a basis for ordering excessive maintenance against, or inadequate marital property to the offending spouse. (i) Marital misconduct should only come into play when the misconduct of one party changes the balance so that the other pparty must assume more than his share of the partnership load. (c) This did not occur herewife entitled to her half. II) Alimony

A) Types of Alimony 1) Need and Ability to Pay (a) Hodge v. Hodge (i) Whether or not a medical license is marital property under divorce code and whether award of alimony was proper. (ii) Alimony is meant to be based on actual need and ability to pay. Primary purpose is to provide one spouse with sufficient income to obtain the necessities of life, not to punish the other spouse. (iii) Purpose is to rehabilitate, not to reimburse (iv) Trial court erroneously applied statute here, no needs to be remanded. 2) Standard of Living (a) Lorenzo v. Lorenz (i) P has low possibility of becoming self-sufficient due to low salary and medical issues. Plus while husband pursued lucrative career, she devoted time to children and domestic affairs 3) Reimbursement (a) In re Marriage of Probasco 4) Fault (a) Dykman v. Dykman (i) Whether award of alimony to appellee was proper in light of appellants advanced age? (ii) Yes alimony is proper bc award well within his ability to pay and he retains a considerable amt of vigor and ability (iii) Although appellant had many faults such as extramarital affiars, these werent considered in the decision. B) Modification 1) Schwarz v. Schwarz (a) Where the parties financial situation significantly had changed warranted an increase in alimony (b) As Ds income increase, it was equitable for him to pay a portion of Ps increased needs. C) The future of alimony III) Evaluating Divorce Awards A) The Marital Fault Principle 1) Using the allocation of assets to punish the spouse who caused the marital breakup. 2) Many states that have no fault divorce, still allow evidence of marital misconduct to be weighed in allocation of assets B) The Need Principle 1) Spouse is entitled to be supported after the marriage ends at a level that covers her basic needs. 2) Requires explanation of why responsibility should fall to ex-spouse. 3) Allocation of assets should not depend on length of marriage 4) Alimony should end only when the need ends. C) The Status Principle

1) Directs courts to ensure at divorce that less affluent spouse continues to enjoy the same standard of living that had during marriage. D) The Rehabilitation Principle 1) Goal of divorce awards should be to enable the financially dependent spouse to acquire sufficient earning capacity to support herself. 2) Differs from need principle in that its implicit premise is that support should be for a temporary rather than indefinite period. E) The Contribution Principle 1) Rooted in idea that spouses pool their efforts during marriage for their mutual benefit. When marriage ends, each spouse has earned certain benefits to which he or she is entitled. Financial awards seek to compensate spouses for their efforts, regardless of need. 2) 4 different ways to calculate: (a) Restitution or the market value of services approach (i) Return to spouse what she contributed to marriage (ii) Court might calculate market value of domestic services (iii) Drawback is its hard to put a money value on this and domestic services typically undervalued. (b) Compensation for forgone opportunities approach (i) Calculate earning power that spouse has forgone (ii) What spouses earning capacity would have been had she stayed full time in labor market (iii) Drawback is requires a lot of speculation (c) Enhancing earning capacity approach (i) Whether the spouse enhanced the earning power of other spouse (ii) Ex: when one spouse works to put other through school. (iii) Compensates spouse for gain she expected from her contributions (d) Partnership approach (i) All assets acquired during marriage should be divided equally on ground that this best reflects widely held understanding of what marriage involves. (ii) Avoids need to engaged in speculation. CUSTODY I) The Best Interest Standard A) Controlling standard in custody context, generally encompasses that which serves a childs physical, intellectual, moral, emotional well-being. B) An empty vessel to be filled by the subjective views of judges about what is good for kids, including view on sex and race C) Uniform Marriage and Divorce Act 402 1) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant actors including: (a) The wishes of the childs parent or parents as to his custody (b) The wishes of the child as to his custodian (c) The interaction and interrelationship of the child with his parent or parents, siblings, and any other person who may significantly affect kids best interest

(d) The childs adjustment to his home, school, and community (e) The mental and physical health of all those involved. 2) Court shall not consider conduct of a proposed custodian that does not affect his relationship to the child. II) Types of Custody A) Physical custody 1) Parent who has right to live with the child. B) Legal custody 1) One who has right to make decisions about childs upbringingschooling, religion, medical care C) Joint custody 1) Parents share the decision making responsibilities D) Full/sole custody 1) Can be either sole legal or sole physical. 2) Usually given if one parent deemed unfit. E) Primary custody 1) Who the kid primarily lives with. III) Applying the Best Interest Approach A) Fitness 1) In re marriage of Carney (a) Father had custody of kids then became disabled in accident (b) In assessing best interest court weighed: (i) Disabled persons actual and potential physical or mental capacity (ii) Adaptation to situation of custody (iii) Special contribution disabled person will make to family as a result of disablility (iv) Whether disability will have substantial and lasting adverse impact on best interest of kids. (c) Bc kids had lived with him for 5 years, there must be a persuasive showing of changed circumstances affecting children. (d) Court concluded that physical handicap effecting parents ability to participate in physical activities with kids is not a changed circumstance of sufficient relevance and materiality to render it either essential or expedient for their welfare that they be taken from his custody. B) Weighing Multiple Factors 1) Hollon v. Hollon (a) What relevance is sexual orientation to child custody? (b) Mother accused of being unfit bc shes gay and messy. (c) Albright factors: (i) The age, health, and sex of the child (ii) The determination of which parent had continuous care of the child prior to separation (iii) The determination of which parent has the best parenting skills as well as the willingness and capacity to provide primary child care (iv) The employment of parent and responsibilities of employment (v) The physical and mental health and age of parents

C)

D)

E)

F)

G)

(vi) The emotional ties of parent and child (vii) The moral fitness of parents (viii) Stability of home environment and employment of each parent (ix) Other relevant factors (d) Court held trial court put too much emphasis on moral fitness. Race and Ethnicity 1) Palmore v. Sidoti (a) Lower court held childs best interest not served bc living with mom who was married to black man. (b) SCOTUS overruled based on EPC bc trial court decision basd solely on race 2) Jones v. Jones (a) 2 different raced parents fighting over custody (b) trial court awarded to dad bc he was native American and knew prejudice kids could be subject to bc although biracial they have native American features (c) this was permissible bc it is proper for a trial court when determining est interest of child in the context of a custody dispute btwn parents 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. Religion 1) Kendall v. Kendall (a) Catholic and jew get divorced (b) Orthodox Christian Dad starts telling kids theyre going to hell bc were raised Jewish (c) This is harmful to kids best interestjudge finds substantial harm such that can put reasonable restriction on dad in sharing religion with kids (d) Interesting that court says this for divorce but if marriage was still intact, parents can expose kids to all kinds of crazy religions. 2) Elk Grove v. Newdow (a) Dad said didnt want daughter to have to say pledge of allegiance bc she was an atheist, but mom said she was chrisitian (b) Ultimately, court didnt decide const. question bc said Dad didnt have standing to bring suit on daughters behalf. The childs preference 1) Johns v. Cioci (a) Most jds weigh childs preference based on age of kid (b) Here, the kid is 12 and writes to judge saying what she wantsgives 2 ood reasonsschool and continuity (c) Court said trial court didnt give this enough weight and remand for new cusdty heaing. Reliance on mental health experts 1) KJB v. CMB (a) Battle of experts (b) Court didnt terminate fathers visitation even though therapist gave someindication that should have. Counsel for Child

1) Schult v. Schult (a) Whether appellate court was correct in holding that if a child is represented by both a guardian ad litem and an attorney, the trial court may allow the childs attorney to advocate a position that is different than that recommended by guardian ad litem? (i) Yesattny and guardian can have different views bc this could be in best interest of child. IV) Alternative Approaches A) The Tender years presumption 1) At one time most courts often awarded a child of tender years to the fit mother. But in 1981, the presumption was ruled unconstitutional bc of its gender-biased classification. 2) Pusey v. Pusey (a) Maternal preference is unconstitutional bc perpetuates outdated stereotypes (b) Should be based on function-related factors like who was the primary caretaker during the marriage. B) Primary caretaker presumption 1) Created a presumption that custody should be awarded to that parent who had assumed responsibility for the childs welfare by doing such things as preparing meals, bathing, feeding, assisting with schooling, and putting the child to bed and waking her up. 2) Appeared to many as the tender years in diguise 3) Garska v. McCoy C) Joint Custody 1) Difficult arrangement in reality. Many jds require the courts consider it only when the parents agree to it and court can envision no difficulty for child in such arrangement. 2) If awarded, must be a hearing and finding concerning the best interest of the child 3) Rivero v. Rivero (a) Doesnt matter what custody your decree says you have, matters what you actually have (b) For joint custody, parents must have child 40% of time, this means at least 3 days out of the week. (c) Here it was a 5/2 split so no joint custody. D) Reasonable Visitation 1) Governed generally by best interest of child standard and a determination of parental fitness 2) Non-custodial parents are not required to visit child E) Requirements for Modifying Custody 1) Custody will be modified only on a showing of a substantial change in circumstances since the time of the decree that (a) Was not contemplated by the court when the decree was entered (b) Is of permenant duration (c) Related to the welfare of the child.

CHILD SUPPORT I) Child Support A) Uniform Marriage and Divorce Act 309 1) In a divorce proceeding, legal separation, maintence, or child support, the court may order either or both parents owing a duty of support to child to pay an amt reasonable or necessary for his support, without regard to marital misconduct after considering all relevant factors including: (a) The financial resources of the child (b) The financnail resources of the custodial parent (c) The standard of living the child would have enjoyed had the marriage not dissolved. (d) Physical and emotional condidtion of the and his educational needs (e) The financial resources and needs of noncustodial parent B) 45 CFR 302.56 1) the guidelines must at a minimum: (a) take into consdieratoin all earnings and income of the noncustodial parent (b) be based on specific descriptive and numeric criteria and result in a computation of the support obligation (c) address how the parents will provide for the childrens health needs C) In GA 1) Percent of Obligor Income Model (a) Old model 2) Income Shares Model (a) Ruling model. Presumes that children are entitled to same support that would have been expended on them had parents stayed together. (b) Amount of support split between parents according to each parents share of combined income (c) Amount paid by non-custodial parent is reduced based on visitation time. D) Child Support Guidelines 1) The income shares model (a) 2 basic ideas behind it (i) child should be supported at same level as intact family (1) calculates child support on basis of data about what % of their overall income intact famliies spend on kid (ii) both parents should be contributing (1) adds both parents incomes to calculate a combined income as if still living in same house and then prorates the resulting basic child support obligation btwn the parents based on their proportionate contribution to combined income. (b) Ex: parents each make $2,500combine to get $5,000 then consult charge. $1,206. Then prorate according to each parents incomehere 50/50 so each pay $603. 2) Percentage of obligor income model (a) Sets child support based only on the non-custodial parents level of income and the number of children. (b) Custodial parent assumed to already be spending part of own income on kids

3) The Melson Formula (a) Most fact-specific model but also entails most steps and calculations (b) Steps: (i) Calclulate net income of parents (ii) Calculate minimum reserve needed for each parents own basic needs and subtract that from net income. (iii) Calculate basic child support need based on the parents combined net incomes then this is subtracted from the parents combined available net income. E) Applying the guidelines 1) What counts as income? (a) Little v. Little (i) Cannot voluntarily impoverish yourself in order to avoid a child support obligation. (b) Kraisinger v. Kraisinger (i) Dad said court erred in applying nurturing parent doctrine and failing to impute wifes earning capacity in child support order. (ii) Nurturing parent doctrine: (1) Parent who stays at home and cares for child does in fact support child. (2) In determining whether to expect NP to seek employment the court must balance factors such as age and maturity of child, availability and adequacy of others who may assist parent, adequacy of available financial resources if parent does remain at home. (iii) Affirm award, but note that now that youngest child is in school full time the dad can revisit the issue of child support in light of moms earning capacity. F) Deviation from the guidelines 1) Possible deviations in GA: (a) High income (b) Low income (c) Other health related insurance (d) Child and dependent care tax credit (e) Travel expenses (f) Alimony (g) Mortgage (h) Permanency plan or foster care (i) Extraordinary expenses (j) Non-specific deviations (k) Parenting time if allowed by the court 2) Court Discretion Generally (a) Schmidt v. Schmidt (i) Trial court was correct in modifying the child support but erred in calculation. 3) Rich Families (a) Smith v. Smith

(i) Should a wealthy parent be forced to share standard of living with child? (1) Not here bc amt was already plenty to keep kid comfortable and any more would simply transfer dads wealth to mom. 4) Poor Families (a) Rose on behalf of Clancy v. Moody (i) Perfunctory, legally noncollectible judicial order of support for indigent parent is not authorized and would send wrong messages. It would degrade the value and integrity of the judicial decree and it would unjustly and unaccountably brand the respondent parent as a deadbeat. G) College Education 1) Solomon v. Findley (a) Divorce court does not have jurisdiction to enforce child support provisions when child is past majority (b) This is an independent contract claim and did not merge into the divorce decree. 2) Curtis v. Kline (a) Act 62 is in question which states a court may order parents subject to an exisiting support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after majority (b) UNCONSITUTIONAL bc treats similarly situated ppl with respect to needing funding for college differently. (i) Act says if parents are divorced can force one parent to pay for schooling, but if married, many parents refuse to pay for kids college. H) Modification 1) Ainsworth v. Ainsworth (a) Trial court erred in modification of child support because the findings and conclusions do not specify reasons for the amt of support awarded or show consideration of statutory factors. FAMILY LAW JURISDICTION I) Subject Matter Jurisdictin A) Which court?federal or state? 1) Federal question 2) Diversity of citizenship II) Personal Jurisdiction A) Which forum state? 1) Domicile? 2) Consent? 3) Waiver? 4) State long arm statutes? 5) Minimum contacts plus nexus btwn contacts and claim. III) Recognition of Marriage A) Wilson v. Ake 1) Relates to DOMAFL doesnt recognize gay couples marriage in MA

2) Right to same-sex marriage NOT a fundamental right even though marriage has been defined as a fundamental right 3) So, court applies Rational Basis 4) Suspect class argsays gays an lesbians are suspect and therefore strict scrutiny should apply (a) Court says not a suspect class bc not vulnerable enough to waulify. 5) Discrimination on basis of gender arg (a) Court says no discim bc treats men and women equallyneither can marry same sex (b) Interesting bc Loving court attempted this same arg. 6) Court ultimately says that encouraging the raising of children in homes consisting of married mother and father is a legitimate state interest and that DOMA is rationally related to the interest. IV) Divorce Jurisdiction A) Sonsa v. Iowa B) Domestic Relations Exception 1) SCOTUS rule that federal courts were without power to hear disputes involving the subject of divorce, or for the allowance of alimony. 2) Based on policy that states have traditionally adjudicated marital and child custody disputes, and have developed competence and expertise in adjudicating such matters, which federal courts lack C) Ankenbrandt v. Richards 1) Mom brought suit in fed court based on diversity of citizenship for torts claim committed by husband 2) Lower court granted dismissal based on domestic relations exception to diversity jurisdiction. 3) Is there a domestic relations exception to federal jurisdiction and if so does it permit a district court to abstain from exercising diversity jurisdiction in a tort action for damages? 4) Federal SMJ is proper here bc the domestic relations exception encompasses only cases involving the issuance of a divorce, alimony, or child custody decree. V) Custody Jurisdiction A) Interstate Custody Disputes 1) Uniform Child Custody Jurisdiction and Enforcment Act of 1997 (a) Concerned with refusal of some courts to give finality to custody decrees issued by other states. Seeks to discourage the use of the interstate system for continuing controversies over child custody. Also intended to deter abduction of child. (b) The childs home state has exclusive and continuing jurisdiction for child custody litigation. (c) Restricts the use of emergency jurisdiction to the issuance of temporary orders. (i) Court may exercise emergency jurisdiction to protect a child, the childs siblings, or the childs parents (d) Home state is where child has lived with parent for 6 consecutive months prior to commencement of proceeding

(e) Modification action can be brought only in the state that made the initial custody determination so long as a child or parent involved in the original custody ruling remains in that state. (f) 4 areas where UCCJEA may play important role in the outcome of interstate custody dispute: (i) in initial child custody determinations (ii) when continuing jds exists because the court originally possessed PJ over the parties to the action. (iii) When a modification motion is brought to change an existing custody determination (iv) In situations where an emergency exists and a court must act to protect the child. 2) Foster v. Wolkowitz (a) Whether the presumptive award of custody to mother with acknowledgement of parentage (AOP) serves as an initial custody determination under the UCCJEA. (b) The provision of the act does not equate the execution of AOP to a judicial determination of custody. (c) AOP not a decree providing legal custody of child (d) Under UCCJEA a childs initial custody determination must take place in childs home statein this case IL is the home state. 3) Thompson v. Thompson (a) Not tested on. (b) PKPA is an extension of full faith and credit such that PKPA requires a state court to enforce a child custody determination of another states if the determination is consistent with PKPA. B) International Custody Disputes 1) Hague Convention and International Child Abduction Remedies Act (a) A child abducted in violation of rights of custody must be returned to the childs country of habitual residence, unless certain exceptions apply. 2) Abbot v. Abbot (a) Couple obtained divorce in Chile and law conferred on Dad a ne exeat right: right to consent before Mom could take kid out of Chile. (b) Is fathers ne exeat right (right to consent before mom takes kid out of country) a custodial right as defined under ICARA? (c) SCOTUS says ne exeat rights are rights of custody and dad has right to decide where kid resides. 3) Charalambous v. Charalambous (a) Mother takes kids to US and does not return to Cyprus like she says she would and argues that returning them would be subjecting them to harm (b) Court disagrees bc Mom only gives evidence of harm to herselfand little evidence there. No evidence of dad harming kids. (c) Mom gives arg. Of harm of being separated from mom (i) But, there is a corresponding harm of being kept from Dad. VI) Property, Alimony, and Child Support Jurisdiction A) Property and Divisible Divorce

1) Vanderbilt v. Vanderbilt (a) Should jurisdictional rules be different for divorce and property determinations? (b) Husband gets divorce in Nevada while wife in NYwife not given notice and did not appear (c) Wife, then files for support in NY but husband says NY has to follow NV decree (d) SCOTUS says where husband secured valid divorce in NV from NY domiciled wife in an action in which wife was not present or served with process, NV divorce court had no power to extinguish any right which wife had under law of NY to financial support. B) Foreign v. Domestic Law on Marital Property 1) Aleem v. Aleem C) Child Support 1) Long Arm Jurisdiction (a) Kulko v. Superior Court of CA (i) Dad didnt not avail himself of PJ in CA when he sent his daughter to live there or bc he was married there, or bc he appeared to quash summons. (ii) In order to establish PJ, a D must have minimum contacts with the state such as not to offend traditional notions of fair play and substantial justice.NO MIN CONTACTS HERENO PJ. (b) Bergaust v. Flaherty (i) Dad argues that long arm statute in VA doesnt reach him bc the child was conceived in France and the statute says he must have fathered a child in commonwealth (ii) Fathered seems to mean the act of procreation (iii) So, no PJ bc Long Arm Statute doesnt apply to him because didnt father the kid in VA. 2) Uniform Interstate Family Support Act (a) Provides for direct interstate enforcement of child custody support orders. Allows for gaining of PJ over D in several circumstances to force they payment of child support. (b) Hamilton v. Hamilton (i) Give FL order same effect it would receive in FL court but directed to no FL law that mandates imprisonment for contempt for violation of order. NEW REPRODUCTIVE TECHNOLOGIES I) Surrogacy Contracts A) The Legality and Enforceability of Surrogacy Contracts 1) DC Code 16-401 2) In GA, the law is unsettled (a) GA doesnt prohibit surrogacy but its limits are unclear. 3) The Baby M Case (a) Bio mom and dad k for surrogacy. Bio mom then runs off with baby

(b) Court did not uphold their contract because said it is contradictory to public policy. But, awarded custody to k parents with liberal visitation rights for bio mom. (c) Did this out of deference for childs best interestnot so much rights of bio mom. B) The Legality and Enforceability of Transnational Surrogacy Contracts 1) In re Baby X II) Assisted Reproductive Technology and Parentage A) ART and the Spouses Parental Status 1) Strnad v. Strnad (a) Wife AI while married to husband and court holds that bc in a marriagethat kid his husbands and kid not illegitimate. 2) Witbeck v. Wildhagen (a) Husband doesnt want kids so wife gets pregnant via AI and couple then splits (b) Wife wants child support (c) 2 policy considertationchilds right to support and husbands right to be protected against support obligation. (d) Fact that she became pregnant via AI controlling bc court said you cant impose parental obligation on someone whos not dad. 3) Miller-Jenkins (a) In lesbian couple, one is mother. (b) Court said non-bio mom still has parental rights bc (i) Were in civil union (ii) Janet held out as parent (iii) Janet participated in decision to get partner pregnant (iv) Lisa ID Janet as parent in dissolution agreement. B) ART and the Unmarried Partners Status 1) Charisma v. Kristina (a) Court looks at actions that intended to show non-gestational mother intended to be the childs mom (i) Hyphenated last name (ii) Whether both parties went to fertitilty clinic together (iii) Whether both were present in delivery room (iv) Behavior/relationship btwn that parent and child after chld born C) ART and the Donor Parents Status 1) In re KMH (a) Sperm donor asserts EP and DP args to say he has parental rights (b) Says was tricked into entering oral agreement btwn him and mom (c) Court says ignorance of law is no excuse.he has no parental rights D) ART and Gestational Mothers Parental Status 1) In re CKG (a) Unmarried hetero couple has kids with husbands sperm but not moms eggs. (b) Court relies on argument that woman was intended to be kids parent as reasoning for upholding her parentage. 2) In re Roberto

(a) Gestational mother and father arguing for MD to take moms name off of kids birth certificate. (b) Lower court said didnt have authority to do this and needed to be on there for health reasons. (c) Arg. That bc of MD equality rights act, there is a violation bc the rule does not apply equally to men and women (d) Court agrees III) Special topics in ART A) Designer babies B) Be aware of areas where techonology and expansion are outpacing the law TAX I) Property A) When property is sold, provision in revenue code saying have to measure your gain and loss. 1) Compare Amount Realized with Adjusted Basis (a) AR-AB = Gain 2) When dividing property, have to pay tax on gain. B) Transfers 1) Non-recognition rule: the gain or loss that will be relized is not going to be currently subject to taxyou can defer the taxbut have to pay taz if selling II) Qualified Domestic Realtions Order A) Husband has large retirement account and wife doesnt want to give all house to him so says he has to compensate her. 1) BAD IDEA to cash out retirement account bc hell be subject to a lot of tax 2) BETTER IDEA to do a QDRO where he transfers a portion of his retirement account under QDRO 3) But, wife will have to pay tax when she starts to withdraw. III) Alimony and Child Support A) When one spouse pays alimony, she doesnt pay tax on it, but the reipent pays the tax. B) What is alimony? 1) Must be a cash payment 2) Must be incident to divorce 3) Cant be called something that is not alimony in the divorce decree C) Lump sum? 1) This is OK but be careful about front-loading D) Alimony trusts 1) If one spouse has own bsns and other wants to make sure will get alimony even if bsns goes under 2) Prop. Placed in trust with indpt trustee who makes payments E) Alimony must cease at death of payee IV) Innocent Spouse A) When one spouse left with dead spouses tax liability B) Section 5016 b,c,f allow spouse to be relieved

1) Btough provision to get relief. Requires you to prove to IRS that you didnt know about understmt of income and had no reason to know 2) CSeparation of liability relief. Burden of proving knowledge shifts to IRS 3) FEquitable relieffirst 2 only available if understmt of income V) Sale of Principle Rez A) Must have owned and used for at least 2 yrs VI) Dependancy Exemptions A) Normally spuse with custody is entitled to exemption but one spouse can give other exemption. 1) You can negotiate, split up kids, change years VII) Filing Statuses A) Single B) Head of Household 1) Common for formerly married ppl with kids 2) Not married and have kid living with you 3) 2nd best C) married filing jointly 1) the best D) Married filing separately 1) Bad way VIII) Whos married according to IRS? A) Not married if havent lived with spouse for last 6 months of year and have a dpeendant child living with you.