12/08/2011 16:00:00

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

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

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

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

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

Necessaries Doctrine- W can get a creditor to give her something if she claims she needed it, the creditor can go after her H if the necessities of the W can be proven. This need is better proved when the W or creditor can prove this type of financing is what the W was used to. Fl doesnt have the Necessaries Doctrine. Modern it relates to children (someone takes your kid in and provides for him, they can collect from the parent) and it is gender neutral. What constitutes necessity depends on the persons way of life, what they are used to. Food and shelter are always necessities. B. Family Violence A husband had a right of chastisement- could beat on his wife as long as there wasnt any permanent damage- stems from the belief women didnt have good judgment Also, it went from a positive right to immunity for spousal violence. Tort immunity between parent and child are limited on the parents responsibility- to educate and control. Husband could chastise and rape his wife. Should there be a distinction between rape and raping wife? The book says there are privacy concerns between the married couple and how do you know it was rape- if violence was involved. Also, there was a marital concept doctrine- if you had sex b4 marriage, you were ineligible for marriage. Domestic violence- not just related to the family unit. Fl 741.8 domestic violence- is for family or household members. Spouses, former spouses, presently residing together as family, or have resided in the past as a family (6 months), or have never lived together but have a common child. Also, FL is the only state that doesnt allow gays to adopt but the gays are included in domestic violence. Also, the kind of touching that is not allowed in tort, is allowed in family. but domestic violence is beyond that. Stalking is included in domestic violence- gives rise to the belief that you are suffering from an imminent threat Up to 1974- thumb rule. Could beat your wife as long as the rod is no bigger than your thumb

Study that determines how you prevent domestic violence? Arrest was the best deterent of domestic violence. Problems- it discouraged victims from calling police b/c they want to protect the offender, its a private matter. Also, just b/c you are arrested doesnt mean the man will be prosecuted, men dont like reporting they are the victim, also, there is a problem with the offender coming back and getting back at the victim for getting them arrested. Sometimes the woman doesnt want to get cts involved b/c she wants to stay in the relationship or she doesnt want the child to be taken away by child services. Govt policy goes so far, still people will have to comply. Social views

come first, then govt policy can be enforced. You need the society to back it up 1st. FL has a battered intervention program but its not very effective. (must have consequences of quitting). Also, people not doing so well in life, are usually the perpetrators of violence- b/c it makes ppl be controlling and lash out. Restraining orders- they tend not to be very effective. If its a temporary restraining order, then the domestic violence cycle can continue and you have the same problem again. Therefore, this is how victims dont leave. When police are called, if there is visible physical injury, then there is an arrest. Permanent restraining orders work. Do you have to be victimized first? You have to have objective reasonable belief that there is imminent danger. you get a temporary order and then you can get it expanded. The restraining order can be ex parte- no violence is necessary just have a reasonable belief of violence. Privacy in domestic violence- its up to an individual to evoke privacy or the govt can invade it. BUT in reality the govt has a more hands off approach unless the victim calls for help. We have more victimization today than in the 1970s. law steps in when social control doesnt exist. There is more of an idea that ppl dont feel the structure of control. Even though you couldve gotten away with it, ppl didnt do it or ppl didnt see it back in the day. Parental Chastisement

In the Matter of Peter G. & others- the trial ct found the father had used excessive corporal punishment against Peter and the mother failed to protect Peter. It is the prosecutors burden to prove injury and excessive corporal punishment. Rule- parent can use physical force necessary to discipline but cant use excessive corporal punishment. The kids statements, the supreme ct said, were very general and there was no physical evidence of excessive punishment. The dissent trial ct finds credibility, and the kids stories corroborated each other. Lovan case- kid was jumping on the bed and the mother hit the kid 3 times with a childs belt. Father reported it because this is a stain on mothers record and may have an impact in custodial decisions (in FL its a big factor). Peter G case was worse- but mother may have been charged w/ neglect. Still the boy was afraid and had been hit. Is worse than Lovan case where a mother just intended to discipline a kid. Test in Canada- if you use an object, below 2 and teenage yrs theres no benefit to corporal punishment, no blow to the head- bright line rules. 2000, Germany outlawed all corporal punishment. If a mother shakes a daughter at a grocery store and slaps her, would you intervene? Would you intervene if father were throwing baby up in the air? (Shaken baby syndrome) People get offended if you intervene b/c of the notion of privacy, but when the abuse is so clear, there needs to be govt intervention. Statutes- by default, are presumed constitutional as long as you have a legit state interest and the means are rationally related to the end. We dont require the best means possible, just has to make sense. However, there are some things the govt cant do. Statutes restrict private actions. The more important a personal individual interest thats impacted, the less authority the state has because the more proof the govt needs to have to beat down your right. o Usually legit govt interest o w/ a fundamental private interest, then in order to pass constitutional strict scrutiny, the state must have a compelling state interest and the means must narrowly go to advancing that compelling state interest. Development of substantive due process.

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

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

Dudgeon- govt rts to morals legislation? One issue dealt w/ acceptance of gay private acts. There was a law against gay interaction, but the moral climate can be considered in enforcing the law, so it wasnt enforced. There was acceptance in this court of gay interaction. But the human rights code warranted that govt can interfere with respect to morals in morals legislation. You have a right to impose moral legislation; here no one enforced this old law so go with what the morals of todays society(unlike Lawrence where the law was looking to be enforced). Chapter 3: the Regulation of Marriage Theres suppose to be government regulation Substantive regulations Procedural regulations State interest in marriage- continuation of society, happiness of the individual, married persons pay tax, identification and support of children, disbursement of benefits- easier, better for the economy.

Zablocki- There was a Wisconsin statute prohibiting certain residents to marry if they didnt have a court order. So if the father hadnt been up to date with his child support, his marriage license was denied. Was there a fundamental right expressed here? Yes, marriage. So b/c of discriminating on a fundamental right, you must find a compelling govt interest to support the law. Is there an important state interest closely tailored to effectuate those interests? There are interests to fulfill prior support obligations should be fulfilled, looking for welfare of the child-but these means to prevent marriage unnecessarily impinged the right to marry. Marshall claims this is an equal protection argument- rich ppl can marry, poor ppl cant- the statute cant say just b/c you dont have custody and your child may still need the support of the govt you cant marry. Its discrimination based on status poor dads. The court applied part strict scrutiny/ part intermediate scrutiny. The law has nothing to do w/ the states interest. Reasonable regulations are fine that dont limit marriage. The interest could have been accomplished by other means. Zablocki had a child with woman #1, and now that #2 is pregnant, the law tells him he cant get married. the law serves to have poor men have more illegitamite kids. ***Justice Marshall says a reasonable regulation that doesnt significantly interfere w/ decisions to enter into a marriage are subjected to strict scrutiny. **** Lovin v Virginia- w/ interracial couple wanting to get married, they left VA and got married in DC and then went back. Then they were arrested in VA. Because of the racial qualification-strict scrutiny under the equal protection. VA didnt want a mixed breed on people. Marriage is a fundamental right. Skinner v Oklahoma- you cant take away someones right to procreate based on the fact that theyve broken the law in some respect. Goes against the interest of having a family. Its up to a state to determine if something is a marriage. Goodridge- we have greater protection for privacy than the constitution.

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

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

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

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

Larson v Larson- there was nothing abnormal w. the woman at the time they married. then the woman was committed to a mental hospital. But the doctor said a normal person may likely never have picked up on her insanity, its hard to detect. Therefore, here b/c the husband/ plaintiff has a burden of proof, he has the harder case. He has to show evidence- clear and convincing evidence standard that she wasnt able to consent to the marriage at the time if the marriage. State interest- intra familial reliance, strong favorance in keeping the marital unit together. Failure to comply w/ contract of marriage divorce 3-6 Alzheimers disease patient gets married. lack of capacity makes the marriage void and anyone can attack it. Here the kids are attacking the marriage so that the new wife doesnt get to the patients checking acct. its all based on burden of proof and the evidence of his insanity. Intent to K are you consenting to the marriage or the marriage just so you can get the benefits.

Procedural Regulations:
Why do we have procedural regulations? Fairness and uniformity For efficiency Structure Proof and notice What are the three procedural requirements? Consent o Capacity This is relevant at the time of the marriage The challenger has the burden of proof (person trying to dissolve the marriage) o Intent Formality o Solemnization o Licensing Smith v. INS: Where they married before the proceedings or were they married during the proceedings? Sham: What are sham marriages?

Marriages that exist in name only Getting married for a limited purpose such as for receiving benefits

Marriage for a limited purpose and with a limited intent What is the general rule with respect to Sham marriages? They are void Ex: legitimizing a child Ex: gaining citizenship, Smith v. INS EXCEPTION: o If you can prove by clear and convincing evidence that the marriage was not a sham Marriage Fraud Act: Rational basis analysis Equal protection? o However, under the 14th Amendment non-citizens are not people and therefore are not entitled to the 14th Amendment protection including equal protection The purpose of the act is not meant to interfere with marriage but rather to preserve immigration law by not permitting those that are not in families to skip to the top of priorities Marriage itself was not prevented because they are just deported or expulsed for two years The purpose of the statute was to demonstrate intention on the aliens part

What is the difference between legitimizing a child sham and gaining citizenship sham? Fraud: Think of it vis-a-vis somebody else in the marriage You are inducing somebody to marry you for a certain reason There is a higher element of deceit o Your intent to marry may be faulty o What are the different types of deceit? o Political affiliation? No- could be divorce o Financial stability? o

What is the fraud rule? Going to the essentials of marriage It is the non-disclosure that is important An intent to going to the essentials of marriage is the kind of fraud that you have no intent to marry

Formalities: Solemnization: The ceremony Licensing: What you get at the court house Carabetta v. Carabetta: There is a presumption favoring marriages The state will presume the couple is married The burden of proof lies on the person that wants to attack the marriage If a legislature clearly and unambiguously states that you must have a license Than it is mandated The federal government does not have to have that same level of scrutiny They are not subject to the same scrutiny levels at all times State Procedural Regulations: Capacity Intent Formalities: o Solemnization o Licensing Carabetta v. Carabetta: In Re Estate of Keimig: Common Law Marriage: o Intent to marry on the part of both parties; o Capacity to marry; o Holding out to the public as married (cohabitation) Why is this important? Notice

Why is cohabitation important? Because it provides proof and notice

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

Putative spouse doctrine generally does not invoke alimony

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

o Usually legislation appears when there is a need for it to appear so what do you think changed? Civil Rights Act Women's Movement Woodstock Flower Power Protest o One of its policy arguments was that it would be burdensome on the court to have two separate laws o o Walton said ok legislation could change the governments by which the status is terminated but not the entry o o What kinds of things are effectively changed? How much control is there between the state and the individual How much individual's have control over what goes into the contract

Validity of Premarital Agreements: o Procedural Fairness Does the statute of frauds apply? Yes So it needs to be signed and in writing Sometimes you do not have to have it signed Marriage is considered the consideration So even though there is no consideration requirement the premarital agreement becomes effective upon the marriage For purposes of this class it needs to be in writing and signed o DeLorean v. DeLorean: There is a range among different jurisdictions The courts says that 3 hours prior to the wedding will not invalidate the agreement In California the requirement is 7 days prior to marriage

 o Elements: Voluntary: Independent counsel It was someone her husband recommended Time Deals with duress factor This is how they are going to dictate voluntariness Why would they be so hands off about this? It could be because of judicial administration Disclosure: Financial disclosure What does it entail to satisfy that disclosure? Duty to disclose (fiduciary duty) v. duty to investigate (arms length relationship) Duty to disclose requires a listing This duty deals with how you consider the fiancs Whether the fiduciary duty begins before the marriage or once the marriage begins

o There was a choice of law provision stating that California law governed and therefore the disclosure while insufficient to satisfy the NJ law was sufficient to satisfy California law o o When does the enforcement take place? At the divorce and the agreement takes place prior to the marriage

o Does the legislature have an interest in keeping families together? Yes they do o Generally most of the time the courts do not have issues with waiver of property rights You just don't want to dupe the other party

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

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

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

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

If there is seemingly a problem and the children may need representation- the attn should get a guardian ad litem to represent the kids. Fraud- cant assist w a fraud or criminal conduct Sex- cant have sex w the client unless it started before representation. o Even if the client initiates, no Duties to opposing counselo if the def has an attorney, talk to the attorney, not directly to the opposing person. o If pro se- lawyer should recommend the person get an

attorney. Fair bargaining- cant lie or fail to disclose material info Candor- act w honesty and avoid frivolous lawsuits Cooperative/ problem solving mode: best w family law- avoid trial, attorney looks good, hostilities are to a minimum Divorce can take a year or two so theres alternative dispute resolution Collaborative law- aims to have an efficient, fair, comprehensive settlement agreement if it goes into litigation the attns are dropped and the parties get new council- promotes settlement. 1/3 objective answers: multiple choice and t/f w/ explanation. 2/3 essays. If one essay it ll have multiple parts. Always give the rule first. Dissolution of marriage- find out if they were married first. The particular rule has to apply to the facts. Credit for legit analysis and some conclusion. Plaintiff will urge this bc this this and this. Defendant will counterargue bc this this and this. Have to resolve it in some way- this is the stronger principle. The answer to this question depends on this fact. Or which principle the jurisdiction values more highly. No case names or statutes needed. Jurisdictional statutes you need to know- not numbers.

Grayson- its a settlement for a marital dissolution action. The wife settled for 159k and 12K a year. Plaintiff is suing the attorney who she claimed were not properly prepared for her case, she was at an economic loss. She needs to prove negligence and that had it not been for the negligence of the attorney, she wouldve recovered more. A CPA testified that the attorneys had not investigated and evaluated the property of the husband correctly. Family law attn said they fell below the standard of duty. The attorney argued there is a public policy favoring settlement and the woman was barred from recovering bc of the settlement. Still attorneys have a duty to discover and analyze the fruits of the investigation. Fair market of husband was 487K and he was inheriting a business, not 14K. so yes, jurys verdict of 1.5 million as ok, the attorneys should pay for their negligence. The attns actions were aggregious and the attn had a duty to investigate the worth of the husband. Rule- the settlement alone does not immunize the attn, attn must have demonstrated good faith. The attn is hired for due diligence. The attn also said the woman had no income when she did, hurt her credibility. Liability to 3rd parties Scholler- the attorney Willoby was representing Alice in divorce action, not the son. The outcome hurt the child and the attn was sued. The attn has to take the child in consideration, but he was not the attn of the child. Maybe children should have their own attn. 3rd party can have standing to sue the attn- if the child is in privity or there is an acting maliciously- there is intentional harming the child. You have to have good faith. 11-7 children got dupped out of inheritance that went all to the wife bc the father died and the lawyer filed untimely. Still no negligence claim bc he didnt act maliciously. Chapter 12: Divorce and Divorce Substitutes Divorce was frowned upon so ppl seemed to accommodate their spouses- made it peaceful and livable. They forced ppl to be together bc of financial interdependence. Today there isnt a financial interdependence. People wanted to have a perceived stability. Easier divorce laws makes ppl jump into marriage quicker, more easily. Also in the past, less litigation.

Family unit is the building block. Uniform Marriage and Divorce Act- substitutes -6 months of separation or one person says their attitude is affected so that they will not reconcile Family Law- at least a year separation. Different valuation. Some states have covenant marriages- it eliminates no fault divorces if you sign on the agreement- goes back to the 1960s where you can only get divorced on grounds. Harder to exit based on your reasonable reliance that we are going into this foregoing certain opportunities. Still, if the law changes to no fault, they might let the husband or

wife get a no fault regardless of the covenant marriage. Lynch- the wife called him a faker and asked him to give her money for support. The husband alleged this was cruel and unusual punishment, the ct disagreed and no divorce was granted. They had not lived together for 40 years. Caps v caps- the husband and the wife were filing for divorce, he for desertion, she for cruelty. The wife left after the husband told her to get out with her one son. He had struck her (she alleged this was cruelty but ct said no- this is just one case of cruelty and is insufficient) the wife had told him he wasnt the man her last husband was. They didnt live together since. Her divorce for cruelty was not granted. Single act- no divorce. The husbands claim for desertion was not granted. She left to go to her moms house with the kids. It didnt matter if the husband told her to leave or if she left bc of him slapping her (this wasnt her deserting him, she didnt leave voluntarilyno divorce). How subjective should the test for cruelty be? It should vary based on past relationship conduct. Adultery- how much proof do you need? Someone coming out of someone elses house, kissing, ect? If you have a fault based divorce, you want to have a defense- there are marriage consequences and financial consequences

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

Hagerty- Claire kicks William out bc hes an alcoholic. And the only way shed take him back is if he got help. The ct granted them divorce and said the marriage was irretrievably broken. Issue- should the fact that hes an alcoholic defeat the findings of discord- he cant make a sound determination in his state? But irreconciliability can be shown even if only one party believes it, particularly when the two live apart. The wives point is how can the alcoholic make a determination? Where one thought reconciliation was possible but the other didnt try it- dissolution was granted. Conclusionalcoholism cannot defeat findings of serious marital discord. The state does have a long history of keeping marriage in tact. But under our modern society, we dont know where our boundaries end. Wife S v Husband S- the husband was caught having an affair with 3 different women. Wife left. She didnt voluntarily leave and there was no mutual consent for the separation. The statute here says the separation must be voluntary and mutual. Most jurisdictions dont require mutual separation, just a passage of time separation. Most require that the separation is in 2 separate houses. Some cts ask for separation and intent to dissolve at the beginning of the separation. Summary divorce procedures: file without too much attn involvement. 61.052- FL law. Marriages that are irretrievably broken. Summary divorce- when there are no minor children. The book, summary proceedings: less state interest when there are no children, marriage has been for less than 5 years, no spousal support asked for, 25K in controversy, little debt and theres a settlement agreement. Spouse dies b4 divorce action is complete, the marriage is dissolved by death. Pg 597- before covenant marriage, need to go through counseling. Problem 12-2. see all of it pg 597. Pure fault based divorce Fault based divorce plus divorce based on mutual consent Fault based divorce plus divorce based on a period of separation

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

NY doesnt have fraud goes into the essentialsthey have material representation something more liberal that can go towards

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

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

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

Must do all the questions in this chapter.P 617 13-1 H and W live in Nj, then move in FL. They separated and W returned to NJ. H filed for divorce in FL. W filed in NJ. H made a special appearance and NJ said we have jurisdiction. NJ is entitled full faith and credit and the matter is litigated here bc NJ ruled that they had jurisdiction on H first. So whatever ct finds they have jurisdiction first, wins- thats where the matter is disputed, not necessarily the first place the divorce is filed. W never appeared in FL and they never decided on jurisdiction. If no one appeared in either Nj or Fl, who wins? First in time doesnt matter when jurisdictional issue is brought up.

13-2 H and W live in MI and then move to Uk with their 3 kids. 2 years later, H files for divorce in the UK. Prior to filing he got a million dollars. W filed in MI. conflicts of law- if the contacts of the foreign country are not sufficient and we can use American law, then we can use MI. 1. Is UK law lacking in sufficiency? Lets assume that UK laws are sufficient, Divorce Recognition Act- you go to foreign jurisdiction for purposes of not being subjected to the US law. Here they didnt just go to the Uk to get a divorcethey were there for 2 years, UK possibly had sufficient contacts. Significant- H filed for divorce in the UK after he got a million dollars- so we in US care what divorce laws are for women and children. We need to see if the H is trying to keep the money from the trust for himself. Gifts and inheritances- separate property- not subject to division in divorce. Its considered separate property, not subject to division. So its his money anyway. In the US W wouldnt be entitled to the money and H didnt file in UK not to have MI the state of divorce, so theres no reason not to identify the Uk as the place of divorce, under comity, MI will have to recognize UK divorce. Personal jurisdiction- governs money and custody matters- must have personal jurisdiction

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

Spousal support- the state initially issuing the support order has continued jurisdiction forever. Child support is dealt with differently because of the best interest of the child. Sometimes you register the order bc you later might need to enforce the order- wage garnishment. o 604 Choice of Law- there are some things that are substantive that will not change. There may be a new ct , but still cant modify the nature, extent, amount, duration of current payment under a registered support order. o The issuer state controls for payment amount which can

not be modified, the amount of yrs for support cant be changed. Arrerages and interest is also governed by the initial state that rules on the order. o When can a 2nd state modify the original order- when no one lives in the original state anymore, the 2nd state can take jurisdiction. NEED TO KNOW p626 ACT and p638 ACT. 13-3 a. it depends if wife is domiciled in Kansas even though you have divisible divorce, you still have the property in California and its not located within Kansas, so Kansas doesnt have jurisdiction. Kansas has in personam jurisdiction over the wife. Child support under UIFSA? There is no full faith and credit over what Kansas does bc they have no jurisdiction over the husband. B. 611 (2) both divorce in CA and then move to New Mexico. Once you have initial order, you have continued jurisdiction in CA. if both the child and the parents move, 205 a (1)- everyone left, so theres no continued jurisdiction if no one lives in the initial state. UNLESS everyones left but consent to continued jurisdiction. ***DONT need to remember the numbers. Just the content. 13-4. UCCJA- pg 634 UNIFORM CHILD CUSTODY AND JUR ACT jurisdiction for custody proceedings, to deter abductions 1. home state 2. significant connection test

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

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

13-7. Unclean hands doctrine- even if shed waited, preventing the new state from having jurisdiction. The new state shall decline, unless everyone consents or the new state is a more appropriate forum. Section 208. 13-8. Family lived in FL and then mother left to Kansas with children and you need 60 days to establish residency. Wife filed for divorce and custody in Kansas. Kansas has divorce over the divorce. PKPA- cts that established the UCCJA, these states have full faith and credit. Friedrich- mother pulls kid outta Germany when dad put mom and kids belongings outside. Mom and kid went to Ohio. What is the governing law? International Child Abduction Remedies Act- ICARA- from Hague Convention. UN- is a declaration, soft law, theres no enforcement. Its important because it orients people toward some conduct- conventions and treaties- there is enforcement in international tribunals. How does the treaty become domestic law? If theres ratification of Congress, it becomes a domestic law. The Hague convention- this is hard law. The domestic law is slightly different but treats the issue of a wrongfully removed child to be returned to its 1st country of habitual residence. The kid was wrongfully removed bc the husband had exercised custody of the child. The ct didnt want to rule on what exercising custody means. They take a broad view of exercising custody. The dad visited the child and planned to keep visiting the child AND he filed for custody in Germany therefore he clearly was exercising custody. Its enough to say the Home state doesnt equal habitual residence state habitual residence is based on intent. Takes an appreciable period of time qualified by intent to establish a habitual residence state. much more domicile- where do you intend to remain. If we intend to live somewhere-its a habitual residency If we go to London to vacation and extend the vacation to one year, the country of habitual residenceship is still US.

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

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

Consider only conduct of the parent that affects his relationship with the kid. inconsistent bc sometimes theres a factor of values and morals. Everything you do arguably affects the child BUT this means cant attack the persons irrelevant conduct. Some states add other stuff- problem is the judges latitude which is huge and there are no weights assigned to the factors. Trial ct makes determinations on the parents person and character- its hard to overturn on transcript on appeal 1830 helms case- which 1st ruled for the tender years doctrine

Ex Parte Devine- issue: can the tender years presumption withstand 14th amendment due process scrutiny- bc we are treating the father differently. The ct finds the presumption is unconstitutional and discriminates against the father in custody issues. Sex and age of the child is important, but there are other factors to consider. The gender issues are dropped. Now custody is more gender-neutral. Tender years doctrine is eliminated. Fl is gender neutral. But there is an argument for this to be a tie breaker- a factor given to be considered. Prohibited factors- gender and race Palmore v Sidoti- Linda and Anthony divorced in 1980 and the wife got custody of the child. Then the father filed a petition to modify the judgment because of changed conditions- the mother had married a black man. He claimed the child would deal with peer pressures. The trial ct agreed. The supreme ct said race cannot be a factor in determining custody. The case said the hypothetical effects of racial prejudice cannot be enough to take the child from the mother. This case concerned hypothetical defamation/teasing. Lets wait til they happen and then we can consider the case. Can be a factor, but cant be hypothetical. Also, here a custodial decision had already been made. When you make an initial order- the father and mother have already been looked at. The kid is already with the mom- so there must be substantial, material change of circumstances. Race isnt enough for sole factor and cant be sufficient for substantial, material change of circumstances. Gender also cant be the sole factor.

Osier v Osier- when we use religion to determine custody of the child. 1. dont consider religion at all. Consider religion after custody 2. if the consequence is that the custodial parent is endangering the child bc of the religious practices then, balance the conflicts of interest. Religion isnt considered w/ non custodial parent- bc of establishment and free exercise clause. So, for custodial parent1. if the custodial parents religion affects the childs temporal well-being- has to be immediate and substantial effect 2. then, balance the interests of the custodial parent practicing their religion and the child ***4/7 The Role of Religion and Parental Life-Style: o Osier v. Osier: o Religious Test: o There is a two step process: Temporal well-being is immediately and substantially endangered by the religious practice in question and if that threshold determination is made The court must engage in a deliberate and articulated balancing of the conflicting interests involved Who is the custodial parent?

o Problem 14-1: What is the problem in this case? The father is trying to undermine the mother's religion o Is it enough to say that you are never going to stop saving your child? What about the fact that the father is damning people that do not believe in Jesus Christ? Now this is a different issue and could actually be associated to disturbing the temporal well-being of the child

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

Criminal behavior

o Lawrence v. Texas: Sodomy case discussed earlier in the school year which prohibited against sodomy by same-sex couples o The Role of Domestic Violence: Owan v. Owan: Statutory presumption: The effect of the statutory presumption makes domestic violence the paramount factor in a custodial placement when there is credible evidence of it. To rebut the presumption, the violent parent must prove by clear and convincing evidence that other circumstances require that the child be placed with the violent parent rather than the non-violent parent.

o What is the problem in this case? The expert did not apply the presumption o What did the court do wrong? Expert is out on a fact finding mission The expert based on his findings decided that there was no domestic violence o However, this was a job for the court/judge to determine based on the evidence found by the expert o if there is evidence of domestic violence, then it must be considered a factor in FL Usually the trial ct is given defference. Abuse of discretion is looked at on appeal.

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

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

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

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

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

OConner v Oconner- custodial parent is choosing to move. It will affect the childs life and the entire habitat. PROCEDURAL POSTURE: Plaintiff mother appealed an order by the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, that denied her application to remove and relocate the parties' child and designating defendant father as the child's primary residential custodian. OVERVIEW: When the parties were divorced, they were granted joint custody of their child with the mother having residential custody. Over the years, the father assumed more responsibility for the child and the parties truly had a joint custody relationship. The mother became engaged to a man in a different state and sought to remove the child to the new state. The trial court denied her motion and vested residential custody with the father. The appellate court held that the trial court properly analyzed the case as one for change of custody since there was no true custodial parent. There was a good faith reason for the move and it would not be inimical to the child's interest. However, the move was against the child's wishes and would disrupt his extended family relationships. The father had a stable home environment. It was affirmed. Here the woman didnt get to relocate with the child. She said she was a primary custodial parent but she wasnt, it was a joint custody situation. Also the childs has family and friends here and is situated in school. The child knew nothing in the new state, mother was moving to get married. this was traditional removal In a traditional removal only one parent has primary custody- traditional removal good faith and not harmful to the child must be addressed. If the child is already with the parent, dont want parents to miss out on the moving opportunities. We will look at their good faith reason motivation for moving. to switch jobs not good faith bc may find work where you are. In modification both parents have custody Look at reasons for the move, reason for opposing the move, the relationship of the dealings between the parties. Traditional removal- prima facie case- Look at good faith for the move and if its not harmful to the child (look at the relationships between child and father, other relatives, school disposition, childs activities). Change of custody- (for joint custody/ shared parenting) the parent that wishes to relocate with the child has burden of proving best interest of the child to relocate. What happens if both parents agree. May depend if you need a ct then. If parents agree in FL, parents have to file the agreement with the court. 61.13001- parental relocation with a child- in FL if theres no objection, just have to file. Must have a petition with the ct.

only const right is the right to travel. By this parents right to travel is not impeded.

61.30- healthcare coverage is required or easily accessible unless not easily available. You arent forced to get pricey healthcare, but with group coverage, parent is required to cover the child.

P 753 Giha v Giha- at point do marital assets end. Are the

lottery tickets marital property? He says they are separate property, she says they are marital property? His argument was that the equitable distribution statutues say marital property only is what you know of at trial. In his mind, this property was property when he claimed it.
So is marital property when you claim it? CT- you have a continuing duty to report your assets or reason to believe of getting assets until the final divorce. The right to the money, right to the property is the one that matters, not whether you have the money in your possession or not. 61.075 (7) - FL after you file the petition for dissolution/ divorce or at the time of a settlement agreement, any property obtained afterwards is separate property. So different states have different rules. Sometimes you proportionalize it- part of earnings before and part after the marriage. Stocks- you hava a date of characterizing them as marital or separate-would it be fair to get their value as of today? Maybe or maybe not. Valuation of property may be decided using a different date than that of the filing of divorce ect.

Shea v Shea- used veterans education benefits to buy a house. Ct said benefits are separate. He started earning them before he got married and he served in the military before he was married. He had a right to the benefits before marriage, so they are separate property. BUT in FL and other states, if you used separate assets to pay for marital property, might transmute the assets. Has he done that? **find out if he was earning the money before the marriage or during the marriage. ****also, can you trace the separate money into marital property ectcan you trace it to retain its individual value. ONeill v ONeill- husband gave his wife jewelry. He intended that if they were short on money, she would have cashed in her jewelry for money. He made an investment in the jewelry and when they appreciated in value he intended to keep the money as marital property. Engagement gifts could be conditioned on marriage, but what about other gifts? FL 61.075- gifts given to your spouse during marriage are presumed to be marital property and to rebut it must be by clear and convincing evidence. A gift in marriage is not really a gift. Its marital property in FL. Look at prenup and putative spouse doctrine.
Shea v. Shea Continuation: o o o o o Hypo: o Based on O'neill: Before marriage he developed a mail stock portfolio Then they get married O'neill v. O'Neill: o All inter-spousal gifts are presumed marital property When you mix the separate with the general the commingling separates the property Because you could trace it really retained its separate character Benefits were suppose to be used for education but were not Tracing deposit $1,000 May 2, 2008 Withdrawal for House $1000 May 5, 2008

On first anniversary he decides to sell some stock to purchase bracelet and for first anniversary he gives it to his wife On second anniversary they got divorced

Who's bracelet is it? Well initially when he sells the stock and purchases the bracelet It is his

Dissipation: o o Under 61.75: (6)(b) o o Separate v. Marital: Apportionment of Appreciation, Commingling, Tracing, and Transmutation o Brown v. Brown: o Supposing you have a big apartment building and it is your separate property and you rent it out and are married Under 61.075 if the rent was passive than Commingling- rent goes into joint account- funds are transmuted Appreciation because of toil- active Inherent qualities passive. The defendants investment acct was separate property. Inter-spousal gifts are presumed to be marital property under Florida law It is clear and convincing evidence General expenses are fine but it concerns wasting the money Suppose she sells the necklace

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

Commercial goodwill (McDonalds- can value it and divide it) Personal goodwill- cant evaluate and cant be divided. 4/30/09 We are going to be provided these statutes: 61. 075, 61.30, 60. 08. On the exam, still look them over. Worksheets and hw assignments are fair game Essay and non-essay (some multiple choice, true/false, make this true/false) Will only entertain specific questions from now on. No calculator Division of Property Husbands Business- gave him 50k in 2001 to start up, then they got married in 2002, and then they divorced in 2009. He used all his contacts in used car sales , thats why it his b-ness was so successful. (good will) lets say in 2009, the business was now worth 200k. we have active appreciation- 150k . if its active appreciation (husbands efforts during the marriage) that is marital property and it is divided. What about the 50,000 that the wife gave him before their marriage to start up. 1. A gift before marriage (w/out consideration) is separate property for the husband. 2. Or can claim the wife gave him a loan. (look at how FL treats transactions prior the marriage). If the trial ct says 50k was a gift, talk about unequal distribution of the 150k in profit. If you look at the big picture, the wife has been the saver in the family AND the wife is the saver and came up w/ the start up money in either way. Had it not been for the wife, then the bus. Wouldve never happened. WaMu she kept 20k in her acct prior to marriage, and in 2009 it was worth 100k. if it was passive appreciation from the 20k that she set up prior to her marriage- its hers. If it was savings from her job during marriage- then its divisible marital property. If even secret bank acct accumulated from job savings, then it is divisible marital property. Underline idea that money is divisible bc the money is from the collective effort of the marriage. Maybe if he only saved and she just spent, then wed think about this during the division of the property- hed get more. Credit cards- he took out credit cards in her name and now she has a 5k debt- its the husbands debt. He must be forced to pay. This is fraud. Also, her credit is ruined so she can ask for some damages bc of that. He must be ct ordered to pay the credit cards.

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

1. permanent- for continued support of the spouse. Lump sum (is it property division or enough money to help her for a while) . it can be periodic- until life of obligee or remarriage. Can modify it if it is the jurisdiction that initially ordered alimony. That ct can only modify it. (jurisdiction). Once you get married you have on-going obligations. If it was in your prenuptual agreement, still it cant be enforced if unconscionable. Look at 61.08 factors. How long have you been married, what are your physical capabilities, can you support yourself? Sometimes fault is factored. A long marriage- 10/ 11 or 13 years or more. You may be employed here., but if your husband was making a ton of money (its not just whether you can support yourself) but are you going to be able to continue your lifestyle after the divorce. Theres a lot of judge discretion. Price case- financial affidavit. If you are married to Donald trump but he has you on a small stipend, then the ct will look at that to determine your small alimony. 2. pendente elite- temporary order of alimony until he judge hears the case and determines whether alimony should be awarded. 3. rehabilitative- you have alimony for job training (re-training) and education so the poorer spouse can try to step into a career (short period of time for definite purposes to enter the workforce- like 4 years). After, can modify alimony. 4. bridge the gap- a subset of rehabilitative alimony. Is transition. You had so much money when married, now you have so much lessyou have to have a period of transitioning. Perez- ordering support makes a difference. The amount of alimony the spouse gets has nothing to do with how much one gets for child support. Suppose you have rehabilitative alimony for 4 years and get married within 3 years, some jurisdictions says no, continue, bc the money is to rehabilitate you for the opportunities lost bc of the marriage. Malone and Zabayos involuntary unemployment or voluntary unemployment is important for purposes of child support and alimony. You can use it to modify support decrees (modify child support and alimony). But if you voluntarily quit/ got fired so you wouldnt have to support your ex spouse, then you would still owe this amount. Ex husband didnt try to do anything about his unemployment- voluntarily unemployed, so ct said he had bad faith, he must look for work and owes for the alimony to ex spouse. He had plently of money to support his new gf and her kid. If you are divorced have to have good faith and cant put ex spouse in a position of parril in order to retire. Burden of proving its involuntary, permanent, not contemplated in final dissolution

Buckston- fair case. the two divorced and wife started living with a man- lived with him for 10 years. So for ex husband to modify his support obligation the ct had to find specific factors- sharing cost of living expenses/ a supportive relationship, lived together for a long time. Spousal support terminates w/ marriage, but some ppl just co-habit. But cohabitation isnt good enough/ isnt sufficient. Well, casual relationships dont count. 61.14 supportive relationship- ct will look at supportiveness, a supportive relationship. Are you 2 living together? Pooling income to cover costs? Supreme ct hasnt had a say in 61.14. well what is a supportive relationship? Is it only an economic relationship? Sharing expenses- supportive relationship. Suppose they have a support relationship, but not w/ money?? Hasnt been decided yet. What if it is a supportive relationship or 2nd marriage and spousal support ends, then 3 days later, the relationship ends, can the spousal support continue? No. I dont know. Maybe depends on whether its an annulled marriage? Ect. Lindstra case. Also can modify based on change of circumstances, but cant terminate alimony- so ct may order $1/yr. Whoever is claiming something has the burden of proving it.

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