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CHAPTER 1 HISTORICAL FOUNDATIONS AND RECENT DEVELOPMENTS
1. Introduction
2. Historical background of Marriage and the Family
3. Family law today
1. State and Federal Regulation of Family law
1. Marriage as a contract or status?
1. MAYNARD v. HILL 1888
2. State regulation of marriage versus an individual=s right to marry
1. ZABLOCKI, MILWAUKEE COUNTY CLERK v. REDHAIL 1978
1. Reason of the dissent being there, because the court structure has changed today and we do not know if the dissent is not going to be the law in the future.
3. Access to the judicial process
1. BODDIE v. CONNECTICUT 1971
2. The principle of waiver of fees can also apply in an action to remove a child from the custody of his parents. See Danforth v. State Department of Health and Welfare 1973.
3. Miltzer v. LeCraw 1971 extended the decision of Boddie to the right to counsel in child custody cases.
2. State recognition of religious Contracts
1. It is recognized that a religious marriage will be valid regarding state law if the parties comply with the state=s statutory marriage requirements.
2. Likewise, a divorce will be valid only if it complies with state law, a religious divorce has no validity whatsoever.
3. AVITZUR v. AVITZUR N.Y.C.A. 1983
1. A couple was married under Jewish law, they had signed a Ketubah, a religious contract defining their duties and obligations. The wife obtained a civil divorce for cruel and inhuman treatment but she could not remarry under Jewish law without obtaining the permission of the rabbinic authority according to the Ketubah. She could not obtained it because her ex-husband refused to appear. She then brought a civil suit to enforce the terms of the contract. The trial court denied the defendant=s motion to dismiss and decided that she could enforce the terms of the contract. The appellate division reversed stating that it was a religious matter and thus granted the defendant=s motion.
2. Whether the court can enforce the terms of a religious contract?
3. The N.Y. court of appeals reversed the decision of the appellate division.
4. the court said that all the plaintiff wanted was to enforce the terms of the contract not to compel the court to grant the religious divorce. As long as the court does not have to resolve religious matters, it can decide anything about a contract
5. In Aziz v. Aziz, the court said that as long as the court only has to decide on the secular terms of an Islamic contract, it is allowed to do so but it cannot interpret liturgical terms of the contract.
6. note: need permission of husband to get the religious divorce.
CHAPTER 2 NONMARITAL AND PREMARITAL AGREEMENTS
4. Chapter Introduction
1. Binding and economic rights can also be created by contract when the parties decide to cohabit without the formalities of a marriage.
5. Rights and obligations of nonmarital cohabitants
1. Introduction
2. THE MARVIN CASE
1. MARVIN v. MARVIN 1976
1. A couple made an oral agreement about their duties and obligations, the woman accepted to stop working in order to take in charge all the household work and he agreed to support her. They also agreed o share equally all the earnings. They separated a few years later and she brought an action to determine her contracts and property rights and put a trust on half of the properties and earnings.
2. Whether this kind of contracts is valid?
3. The court said that it was not void on the basis of meretricious sexual services.
4. The court decided that this kid of contracts were valid. Agreements between nonmarital partners are enforceable so long as they are not only based on illicit and immoral meretricious consideration. The court also rejected the application of the Family Law Act. They rejected the holding of Cary and Atherley as the distend the Act. Any remedy can be determined by the court not only declaratory relief.
2. Cases:
1. In Carlson v. Olson 1977, the court decided to divide equally the property but the Minnesota legislature tempered that holding by passing a new act.
2. In kozlowski v. Koslowski 1979, the N.J. supreme court severed the sexual relation to award half of the property for the home and children care taking by the woman. This really depends on the amount of time that the couple spend together.
3. In Schaefer v. Superior court ex. Rel. Christopher 1986, the appellate court reaffirmed the Marvin holding that any causes of action based on Marvin types of factual situations are contract actions and are not family law proceedings. The remedies of Marvin are not extended to married couple.
3. MARVIN v. MARVIN 1979
1. The decision of the trial court after the holding of the Supreme court.
2. The court rejected any ground for remedy as all the properties were earned by the defendant by his skills and talents. The court then stated that if it were granted, it would be equal to the recognition of common law marriages that were abolished in 1895. The court interpreted what the supreme court meant by mutual effort as Athe relationship of a man and a woman who have joined together to make a home, who act together to earn and deposit such earnings in joint accounts, who pay taxes together, who make no effort to gain advantage by reason if the association.@
4. MARVIN v. MARVIN 1981:
1. Appellate decision of the trial court awarding some equitable remedy.
2. The court reversed the decision of the trial court as the pleadings did not ask for rehabilitative award but only for a pension to maintain herself. The appellate court reversed entirely the findings of the trial court as it was not based on any factual findings.
5. Cases
1. in Morone v. Morone 1980, the court rejected the notion of an implied contract as a remedy for unmarried cohabitation disputes since there was no basis upon which an implied contract could have been found.
2. In McCall v. Frampton 1979, the court dismissed the action on the basis that the agreement was void because of adultery.
3. In Butcher v. Superior court 1983, the court adopted a stable and significant relationship test as a basis for deciding disputes between non-married cohabitants.
3. Agreements against public policy
1. HEWITT v. HEWITT, ILLINOIS 1979
1. The woman became pregnant while they were still in college. They announced to their parents that they were married and lived together for 15 years with three children. They separated and she sought to obtain half of the properties and earnings as she helped him to put up his business and educate the children and take care of the house. The trial court rejected her claim stating that to grant her relief would be to re-institute common law marriage and that it was against public policy to grant that specific relief. The appellate court reversed basing its decision of Marvin.
2. Whether the agreement is against public policy?
3. The Supreme Court reversed the appellate court decision and it rejected Marvin stating that it was against public policy. It look at the legislation history to show that by enacting the marriage and Dissolution Act, the state legislature excluded this kind of contract. They stressed that it would re-institute common law marriage and that the purpose of the law was to promote marriage and if it were to grant relief, then it would give nonmarital plaintiffs more rights than marital plaintiffs. Plus, it showed the difference between California where no-fault divorce exist and their state where the no-fault divorce had been rejected.
2. The Hewitt case is illustrative of the Severance Doctrine applied in Marvin with the opposite result.
3. The Wisconsin Supreme court rejected the Hewitt holding in Watts v. Watts 1987.
4. Effect of nonmarital agreements on property rights
1. PICKENS v. PICKENS 1986
1. a couple divorced with five children. They started to live together but never remarried. They had two more children and lived for 20 more years. They finally separated and the wife brought this suit to have the property acquired properly divided. The trial court found in favor of plaintiff on the basis of the separation of a partnership as the common law marriage is not recognized in the state of Mississippi.
2. can the property be equally divided?
3. the court affirmed the judgment on the fact that there was no erroneous findings which is what the standard of review is. The court stated that it was possible to divide equally the property acquired during their cohabitation as she worked most of the time of the cohabitation except when she ad the babies.
4. QUESTION: does it imply that the court would not have divided the property equally if she had not worked, does it imply that the cohabitation was not illegal regarding meretricious sexual consideration?
2. Interesting case:
1. Hollenbaugh v. Carneigie Free Library 1977: two people discharged because one was married but living with another one pregnant. The trial court dismissed because there was no claim. The district court reversed and remanded and the trial court said that their discharge was not protected by the equal protection clause because they were living in open adultery.
5. Drafting the nonmarital agreement, see book
1. Problem
1. stella side
1. it is an implied and expressed contract.
2. not based on meretricious relationship.
3. she provided other services, try to argue severance doctrine.
2. teresa=s side
1. no severance doctrine.
2. argue hewitt.
3. Both sides can win, depending on the jurisdiction.
6. Breach of promise actions and gifts
1. Introduction:
1. The Common Law recognized an action for breach of promise to marry. Most states have abolished this action but litigation still exists.
2. The traditional rule
1. STANARD v. BOLIN 1977
1. the plaintiff met the defendant at a party and soon after they started to see each other. He promised her to take care of her financial situation, to take care of her mother and her kids and that she would not have to work ever again. He proposed, she accepted, starting to sell her house and the furniture. The set the date for the marriage and purchased a house. A month before the wedding, he called it off. She brought an action for breach of promise to marry alleging mental injuries and loss of financial expectations. The trial court dismissed the complaint as against public policy.
2. Whether the action for breach of promise to marry is still actionable?
3. the court reversed.
4. the court first led the background of the action and listed the criticisms made to it but rejected them. The court first stated that the action to recover damages for loss financial expectations is not valid anymore, because you can=t expect something that does not exist. But it stated that the action for mental injuries and the like was still valid and thus she could recover damages for the breach. It rejected also punitive damages because you cannot get punitive damages in that state
3. Recent consequences
1. BROWN v. THOMAS 1985
1. A couple intended to marry and the plaintiff offered an engagement ring. The engagement was terminated but the defendant refused to return the ring. The plaintiff brought an action in replevin. The trail court rejected the claim as against public policy as the state had abolished the action for breach of promise of marriage and it said that the only action possible was when the thing had been obtained by fraud.
2. whether the abolishment of the common law action abolishes every action based on the breach of promise to marry?
3. the court reversed and remanded.
4. the court rejected the reasoning of the trial court because the legislature did not expressly rejected potential action to recover gifts. The court stated that under the theory of conditional gifts the plaintiff could recover and that the statute did not exclude this kind of actions.
2. A contract in general restraint of marriage is void as against public policy. But partial restraint contracts are not void if the restraint is reasonable.
7. Premarital agreements
1. Introduction
1. Traditionally, premarital agreements could only validly affect property rights on the death of a spouse. But today, some courts have decided that divorce planning should not be per se invalid.
2. The traditional Rule
1. IN RE ESTATE OF BENKER 1982
1. An elderly couple decided to marry and made an premarital agreement, they were both represented by the same counsel. By this agreement, the wife waived all rights on the property of her husband in case of death. The husband died and they all realized, the daughter and the wife that the estate was much higher than what they thought. The wife then instituted this action to invalidate the agreement as she was not aware of the largeness of the estate when she signed the premarital agreement. The probate court held in favor of plaintiff stating that there was a presumption of non-disclosure and that it could not be rebutted by any evidence. The trial court affirmed and the Court of appeals reversed.
2. Whether there is a presumption of non-disclosure, and on which party is the burden of proof.
3. the Supreme court of Michigan reversed the court of appeals decision.
4. the court stated first that the burden of proof is on the party who is alleging the invalidity of the agreement. Second, the court recognized a rebuttable presumption of non-disclosure to apply when:
1. there is a complete waiver if all rights of inheritance and rights of election by the widow.
2. the husband=s estate is very ample in comparison to the wife=s.
3. the decedent is shown to be rather secretive about his actual financial status.
4. the agreement does mention that the party were fully aware of the property interests of each other.
5. the widow was not represented by an independent counsel.
2. Some courts have laid down an alternative test not to avoid all premarital agreements because of non-disclosure.
1. Ato render an antenuptial agreement valid, there must be a fair and reasonable provision for the wife or husband or in the absence of such provision there must be a full and frank disclosure of the husband=s or wife=s worth or adequate knowledge thereof on her part independently of disclosure.@
3. Unless overreaching or fraud is found, an apparently unreasonable provision for the wife will not in itself afford a basis for voiding the premarital agreement.
4. The agreement must be in writing to comply with the statute of frauds except if part performance or reliance.
3. Divorce planning in premarital agreements
1. The traditional rule: See Crouch v. Crouch p95: such a contract induce a mercenary husband......
2. FREY v. FREY 1984
1. A couple married under an antenuptial agreement where the wife accepted that if divorce occurred, there would be no alimony and the likes. A few years later, they divorce and she brought a suit to obtain alimony and other rights. The trial court held in her favor stating the antenuptial agreement was void as against public policy.
2. Whether divorce planning agreement are void as against public policy.
3. The court reversed.
4. The court stated that the old rule that this kind of agreements was void could be held because of the changes in reality. It looked at all the other jurisdictions and stated that most courts have recognized this agreement. Plus the legislature has recognized this agreement. It laid down the factors to look at when there is a dispute regarding the agreement.
1. agreement must be fair and equitable in procurement and result.
2. the parties must make frank, full and truthful disclosure of all their assets.
3. it must be entered into voluntarily, freely and with full knowledge to its meaning and effect
4. independent legal advice is highly recommended.
4. Sample premarital agreement
1. It should be in writing because of the statute of frauds but reliance and part or full performance will eliminate the defect
2. See sample pages 107/112.
8. Separation agreements: CHAPTER 10 SPOUSAL AND CHILD SUPPORT ON DIVORCE, ' 10.07 pp 917/930.
1. Introduction
1. They were for a long time looked upon as invalid because of public policy. But things changed and they are now very used.
2. the couple may be able to resolve the problems with more knowledge than a court would.
3. They usually abide with more respects to the settlement than a court order.
4. The delay in court is usually long.
5. Sometimes, the court path is the only path available.
2. Necessary elements for a valid separation agreement.
1. It will usually be enforced if the terms are fair.
2. GOLDER v. GOLDER 1986
1. A couple married for several years decided that the best solution was to divorce. A separation agreement was entered into and not a lot was given to the wife but she accepted the terms and signed everything. On the same day, a hearing was held and the divorce was granted but she did not appear and the separation agreement was incorporated into the order. A year later, the ex-wife brought a new action because she realized that her husband lied on the assets. The trial court held in her favor stating that the husband was guilty of fraud and overreaching.
2. whether the separation agreement was fraudulent?
3. the court affirmed.
4. the court stated that the only way to reopen a judgment was to show overreaching and fraud which she did. Then as she was without independent counsel, the court said that the separation agreement had to be set aside. The fact that the husband had lied about the assets was apparently not enough by itself. Then the court went into the award of punitive damages: it said that the court will grant them if there was an abuse of discretion by the trial court and found none.
5. The dissent disagreed on that point and said that the award of punitive damages is warranted when it is shown the defendant has behaved in a way that was an extreme deviation from reasonable standards of conduct, that the defendant was aware it was fraud or deceit or in a state of mind to hurt the other party.
3. Notes:
1. the marital relationship imposes a fiduciary duty on each party which requires at least full disclosure and fair dealing. If full disclosure is not made, then the agreement might be voided for fraud, overreaching or designed concealment.
2. independent legal advice: important factor to determine if the parties were on equal footings.
1. Whitney v. Seattle First National Bank 1978, the terms of the agreement being fair and reasonable, the fact that there was no legal independent advice does not warrant that the agreement be declared void.
2. it is preferable that the two parties are represented by different attorneys except if the attorney can completely neutral see Perry v. Perry 1978.
3. When a party refused to obtain legal advice while the other is represented, the attorney must tell the non-represented party that:
1. it is preferable to seek legal advice.
2. do not state or imply disinterest
3. tell the unrepresented party that he only represents his client.
4. the interest of one may be adverse to the other one
4. A separation agreement will be valid if
1. terms are fair and just
2. no fraud, duress or undue influence
3. entered into by competent parties with full knowledge of their rights and all the material circumstances
4. executed after separation or in contemplation of separation.
5. it is not per se promotive of divorce.
CHAPTER 3 PATERNITY AND LEGITIMACY
9. History and perspective
1. Historical background
1. Under Common Law, an illegitimate child was the son of no one: a filius nullius.
2. In the U.S., the big difference is that there were rights that were recognized with regard to the natural mother: they could inherit from their mother, illegitimate sisters and brothers but not from the legitimate ones.
3. Custody of the illegitimate child depended on the child=s age.
4. The natural father had no legal right on the child except if he adopted him.
5. The trend changed and statutes were adopted:
1. support upon proof of paternity.
2. inheritance rights, and visitation have been redefined.
3. children of both void or voidable marriages are legitimate by statute.
4. See Levy v. Louisiana where the USSC held that it was unconstitutional to give a right of action to legitimate children but to exclude illegitimate children.
2. Current perspectives
1. The rate of illegitimate births have increased dramatically despite the new contraception methods.
2. One of the factors could be that there is a trend to live together without marrying.
3. The other is the ignorance of the teenagers about the different contraceptive means.
10. Illegitimacy, paternity and the constitution
1. Introduction
1. GOMEZ v. PEREZ 1973
1. the mother filed a petition for support for her children. The trial court held that there was an obligation for support but because the children were illegitimate there was not obligation under Texas law. The court of appeal affirmed and the supreme court refused to hear the case.
2. Whether there is an obligation to support illegitimate children.
3. The USSC reversed the decision.
4. It held that a state may not invidiously discriminate against illegitimate children by denying them the benefits accorded to children generally.
2. Notes
1. none
2. Father=s custodial right to the illegitimate child
1. Prior to the Stanley decision, a natural father rarely could get custody to his illegitimate child.
2. STANLEY v. ILLINOIS 1972
1. The mother died but they never got married. Under Illinois law, he had no right to custody, the children were declared wards of the state and placed in other families. Stanley appealed this decision and the court said that he had no right to a hearing under the equal protection clause.
2. Whether he is entitled to a hearing.
3. The court reversed the Illinois decision.
4. the court held that he had a right under the equal protection clause to a hearing to determine if he was a fit parent.
3. Notes
1. He was declared an unfit parent and lost custody of his children.
11. Paternity proceedings
1. Uniform Parentage Acts
1. There are two different acts:
1. the Uniform Parentage Act adopted in 1973
1. 17 states
2. the Uniform Act of Paternity in 1960.
1. 6 states.
2. The goal of the act was to answer the constitutional issues which had arisen concerning paternity.
3. See notes for the rest.
CHAPTER 4 MARRIAGE
12. Introduction
1. Marriage has been defined as the voluntary union of a man and a woman to the exclusion of all others
2. It is a status founded on contract and established by law.
3. It is regulated and controlled by law based on principles of public policy affecting the welfare of the people of the state.
4. The validity or invalidity of a marriage has far reaching consequences:
1. Wrongful death statutes usually limit recovery to the legal wife excluding de facto wives.
13. Formalities of marriage: the statutory requirements
1. Introduction
1. There are three parties to a marriage:
1. the state
2. the husband
3. the wife
2. A licence to get married is necessary prior to marriage.
2. PICARELLA v. PICARELLA 1974
1. Both husband and wife wanted the annulment of the marriage. She was 18 and he was a minor when they got married. He misrepresented his age to get the licence. They lived only one day together and then he went back to his parent=s home and she stayed at her parents , they continued to live separate and apart after that. They filed the petition two days after they got married. The court rejected their claim. He appealed the decision.
2. Whether there is annulment or not
3. The court affirmed the decision.
4. The court held that the courts are not authorized to annul them merely because it may seem well for the particular parties before them. The court added that what the husband did was not fraud because he was a volunteer in it. The court also held that the requirements were directory and not mandatory, the fact that he was under age could not void the marriage because of that. The court held that the marriage was valid.
3. Notes
1. A minority of states have mandatory requirements for marriage and if the requirements are not met, then the marriage is not valid.
2. Most states have curative statutes to prevent undue hardship on the parties.
1. they usually provide that the marriage be consummated.
14. Informal Marriages
1. Most states have recognized such marriages on the public policy of promoting marriage in general and of validating the present expectations of the parties.
2. Common law marriages
1. Introduction
1. there must be a present intent and agreement to enter into a matrimonial relationship which may be inferred through cohabitation and community repute as husband and wife.
2. Common law marriages are valid in those states that recognize it.
2. RICKARD v. TROUSDALE
1. it is a dispute over the estate of the deceased. The husband and the wife had a ceremonial marriage but at the same time he was still married to his first wife. The trial court held in favor of the second wife.
2. Whether common law marriage existed.
3. the court affirmed.
4. the court held that it was a settled rule that if the parties in goof faith marry at a time there is a legal impediment exists to their marriage, and they continue to live together as husband and wife after the removal of the impediment to their lawful union, the law presumes a common law marriage. The court held that if the marriage is voidable, then an action against it can only be brought during the life of the two spouses. He was dead thus she couldn=t attack it. The fraud if it existed would only render the marriage voidable and not void. If the marriage had been void, then a person can attack the marriage even after the death of one the spouses.
3. notes
1. Some courts held that an initial meretricious relationship cannot ripen into a common law marriage unless there was a clear intent or agreement after the impediment had been removed to live as husband and wife.
2. states that recognize common law marriage:
1. Alabama
2. Colorado
3. Georgia
4. Idaho
5. Iowa
6. Kansas
7. montana
8. Ohio
9. oklahoma
10. Pennsylvania
11. Rhode island
12. south carolina
13. Texas
14. DC
3. most other states will not recognize it however, they apply the full faith and credit clause if performed in one of those fourteen states.
3. Putative marriage
1. Introduction
1. a putative marriage is a curative marriage when one or both of the partied were ignorant of an impediment that made their ceremonial marriage invalid.
2. it is mostly found in those states that follow Spanish or French law systems.
3. it mus be contracted with a good faith belief that the ceremonial marriage was valid, but unlike common law marriages, cohabitation is not always required.
2. REBOUCHE v. ANDERSON 1987
1. she brought an action for wrongful death of her husband. But she was still married to another person. The trial court found that she had a good faith belief that she was not married to her first anymore.
2. Whether there was putative marriage or not.
3. the court affirmed the decision of the court below.
4. the court held that the good faith requirement has been defined as an honest and reasonable belief that the marriage was valid and that no legal impediment to it existed. It is a subjective test rather than an a subjective one. The court also held that the burden is on the party whose marriage is under attack to prove that there was good faith belief. The court held that the standard of review was clearly erroneous and couldn=t find that the trial court was clearly erroneous and it based his decision on the credibility of the wife.
3. Notes
1. the Fed govt. has a putative spouse test for social security benefit.
4. Marriage by proxy
1. Introduction
1. it is an attempt to comply with statutory marriage requirements by designating a stand-in or using the telephone.
2. the validity of the marriage depends on the jurisdiction where the marriage took place.
2. TORRES v. TORRES 1976 (N.J.)
1. they were married by proxy. He filed a petition to have the marriage annulled. He went to great length to comply with the New Jersey requirements. She came to the states and then a child was born.
2. Whether N.J. recognizes marriages by proxy.
3. the court held that the marriage was valid.
4. The court held that all marriages by proxy are not void. It rejected a case where it said that because the case was based on fraud. Thus it rejected the petition for annulment.
3. Notes
1. some states require the presence of the two parties to have a valid marriage.
2. there is little authority on the subject yet.
3. it is mostly used in time of war.
5. De facto Marriage
1. Introduction
1. a de facto marriage or a relationship between unmarried cohabitants, traditionally lacks any legal recognition as a valid marriage since
1. it does not comply with state statutes as a formal ceremonial marriage
2. it does not possess the present agreement and community repute requirements for a common law marriage
3. it lacks the good faith belief requirement need for a putative marriage.
2. a minority of courts have recently allowed the de facto wife to recover worker=s comp, and loss of consortium.
3. The prevailing traditional view is that a de facto wife cannot recover for loss of consortium because it needs a valid marriage
1. See bullock v. US where the court recognized the de facto marriage where the spouses were married then divorced and then lived together again until he had an accident.
4. The prevailing traditional view is that a de facto wife cannot recover worker=s comp. But some courts have awarded the benefits to de facto spouses.
1. the state statutes should be construed liberally.
6. Marriage by estoppel
1. Introduction
1. it happens when a husband ora wife has obtained a void divorce and then remarries. But if they knew about the invalidity of the divorce they may be estopped by their conduct from questioning the legal validity of this second marriage.
2. IN RE MARRIAGE OF RECKNOR 1982 (Ca.)
1. she got divorced on the ground of cruelty and remarried. She filed for a divorce and he filed for annulment on the basis that when they got married the first marriage was not finally dissolved. The trial court rejected the husband=s claim because he was estopped from arguing that the marriage was invalid.
2. what are the conditions for estoppel to apply?
3. the court affirmed.
4. the court held that because he knew that the marriage was not valid when performed because she was not yet divorced, he could not argue that the marriage was invalid because the final decree had not been issued. The elements for estoppel are
1. representation or promise
2. made with knowledge of the facts
3. to a party ignorant of the truth
4. with the intent that the other party act upon it
5. when the other party has, in fact, been induced to rely upon it.
3. Notes
1. it is based upon a personal disability of the party attacking the void divorce decree and subsequent invalid marriage under the theory that one who has taken a prior position regarding that divorce and subsequent marriage, and who has obtained a benefit from it, cannot later take an inconsistent position which would prejudice the other party.
2. it does not need to be detrimental to function.
3. there are three different rules:
1. the traditional view: the domiciliary state and the parties are not bound by any estoppel defense in collaterally attacking a void divorce and subsequent remarriage.
2. the sociological view: a court will attempt to validate the real expectations of the parties of divorce and remarriage, rather than relying on a purely theoretical and perhaps unreal legal basis.
1. a person may be precluded from attacking the validity of a foreign divorce decree if, under the circumstances, it would be inequitable for him or her to do so.
3. the status v. property right view: if the action deals with marital status, including actions to declare the nullity of a void marriage, separation or divorce, then estoppel is deemed inappropriate. But if the action deals with a property right, such as taking against a deceased spouse=s will, or enforcing an alleged right to support, then estoppel may apply.
15. The last-in-time marriage
1. Introduction
1. It is a rebuttable presumption.
2. A subsequent marriage raises the very strong presumption that any former marriage was terminated by divorce, and the former spouse has the burden of proving that there was no divorce
2. HEWITT v. FIRESTONE TIRE & RUBBER CO 1980
1. Hewitt married when he was 20. He was asoldier and lived on and off with his wife. He was sent to Viet Nam and cmae back to the states afterwards. He lived with wife, had a child with her and then deserted the family home. He called her to say that he couldn=t live with her. She said that she was in contact with him at one point where she asked for a divorce and he agreed. She saw a lawyer and draw the papers that were sent but never returned. He remarried and his second wife knew about the first marriage but believed that he was divorced. He died of an accident of a few years later living three children. A wrongful death action was brought and the first wife said that she was entitled to some of it. They look for a decree of divorce but couldn=t find one. A settlement was reached between the insurance company and the second wife even thought they knew they may have a problem with the first wife. Both wives claim the right for the settlement.
2. Whether there is a last-in-time presumption in Va and what are the conditions?
3. The court found in favor of the second wife
4. The court held that the presumption exists in Va. They did not look into all the states where he could have obtained an ex-parte divorce.
3. Notes
1. It applies to valid common law marriages as well.
2. The prior spouse must come out with documentary evidence that no divorce was entered in any jurisdiction where the parties residedm or whree they might have reasonably resided.
3. Some courts hold that the only thing a prior spouse has to do to rebut is to show a valid marriage and then the burden shifts to the other spouse to show there was a divorce.
16. Capacity and intent to marry
1. Introduction: void v. Voidable marriage
1. If the marriage can be attacked after the death of one of the spouses then it was void ab initio.
2. If the marriage cannot be attacked after the death of one of the spouses then it is only a voidable marriage.
3. A void marriage can be collaterally by any party even the state.
1. same sex marriage
2. bigamous or polygamous marriage
3. incestuous marriage.
4. An annulment action is not necessary as it is a nulity from its inception.
5. A voidable marriage is valid for all civil purposes unless it is annulled in a direct legal proceeding by either the husband or the wife. It may be ratified by the parties.
1. underage marriage
2. marriage to a mental incompetent,
3. fraudulent marriage
4. marriage under duress
5. marriage in jest
2. Same sex marriage
1. Introduction
1. they void ab initio in a majority of states.
2. a right to privacy to consensual homosexual relationship has not been recognized as of yet, despite the Hawaii supreme court decision.
2. BAKER v. NELSON 1971
1. plaintiff filed for a licence to marry, defendant refused because it was for a same sex marriage. The trial court decided that a licence must not be issued to the plaintiffs.
2. Whether same sex marriages are allowed?
3. the court affirmed the decision of the trial court.
4. the court first stated that the statute concerning marriage being from the territorial days could encompass same sex marriage and that under the statute same sex marriages are prohibited. Then the court decided that the statute was not unconstitutional. The court distinguished all the cases that the USSC decided for marriage purposes.
3. Notes
1. Transsexual marriage: one court said that the marriage was a nullity because the husband did not know prior to the marriage that it was a male. In another case, the court held the contrary because the husband knew of the sex of his wife which prior to the weeding had undergone surgery.
3. Bigamous and polygamous marriage
1. Introduction
1. they are void ab initio in most states.
2. POTTER v. MURRAY CITY 1985
1. his employment was terminated because he had plural marriages. He brought an action under '1983. The fed govt. Was joined as a party. The trial court rejected all his claims.
2. whether there is a right to have plural marriage.
3. the court affirmed the decision of the trail court
4. the court first said that the state had a right to ban polygamy even if with the existence of the equal footing doctrine. Then it said that he had no right to the free exercise clause because it was compelling interest of the state to ban polygamy and bigamy. The court also rejected a right to privacy to have polygamous marriages.
3. Notes
1. polygamy has been defined as having several spouses at the same time
2. bigamy has been defined as contracting a second marriage while the first one is still subsisting.
3. Enoch Arden statutes:
1. when the husband disappeared, then the statute allow the wife to remarry after 5 or 7 years.
4. Incestuous marriage: prohibited degrees of kinship
1. Introduction
1. in approximately half the states, first cousin marriages are prohibited.
2. IN RE ESTATE OF STILES 1979
1. uncle and niece got married. The trial court said it was voidable, thus it could not be collaterally attacked after the death of one of the spouses.
2. whether it=s void ab initio or merely voidable.
3. the court reversed.
4. the court held that such marriages were void ab initio.
3. ETHERIDGE v. SHADDOCK 1986
1. the ex-wife filed a petition to have the cusotdy oh her children which was given to the father. She claimed a change of circumstances as her ex-husband started living with his first cousin. The two cousins got married. The trial court held it was not a change of circumstances.
2. whether it is valid.
3. the court affirmed.
4. the court held that it will recognize the validity of the marriage if it was valid in the state it took place. As it was valid, the court had to uphold the marriage.
4. Notes
1. a marriage valid where contracted will be recognized as valid unless it violates a strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.
2. In loving, the USSC held that it was unconstitutional to prohibit interracial marriages.
5. Underage marriage
1. Introduction
1. most of the jurisdictions hold that they are merely voidable.
2. MOE v. DINKINS 1981
1. One of the parent did not give consent to the underage marriage even though the girl was pregnant.
2. whether the statute is constitutional
3. the court held that the statute was constitutional.
4. the court held that the state have more powers when it concerns minors, their right to privacy is hardly existent. The court refused to apply strict scrutiny to the case because they were minors. The court also held that the statute only delayed the marriage of the two minors. It was not a complete prohibition on marriage.
3. Notes
1. NONE
6. Mental and physical incompetence
1. Introduction
1. the common law rules is that the marriage is void ab initio.
2. Today: the marriage is only voidable.
3. The test for mental capacity to consent has been defined as a capacity to understand the nature of the marital contract as well as understand the duties and responsibilities of marriage.
4. But some courts have only required that they was capacity at the time of the marriage.
2. GEITNER v. GEITNER 1984
1. Husband Geitner was diagnosed with schizophrenia and declared mentally incompetent and the plaintiff bank was declared guardian ad litem. In 1980, geitner met Marcia and he proposed and she accepted. They got a licence to marry and were married the same day. The guardian refused to give funds to the wife and decreased geitner=s allowance at the same time. The guardian brought an action to invalidate the marriage on the ground of incompetency. The jury rendered a verdict against the guardian stating that he competent enough when he married.
2. Whether an prior declaration of incompetency is conclusive of incompetency in the future?
3. The court affirmed the trial court decision.
4. The court said that it is not conclusive that he was declared legally incompetent. It also said that the burden of proof was on plaintiff at all times. There=s no shifting. They also rejected the error concerning the admissibility of testimonies.
5. The court said that the general rule is that the test is the capacity of the person to understand the special nature of the contract of marriage and the duties and responsibilities which it entails, which is to be determined from the facts and circumstances of each case.
3. Notes
1. a prior adjudication of incompetency is not conclusive on the issue of later=s competency.
2. Some courts have decided that the prior adjudication would bar a subsequent marriage.
7. Fraudulent marriage
1. Introduction
1. It is voidable.
2. Reynolds v. Reynolds established the two pronged test to determine the degree of fraud.:
1. it must be material fraud:
1. that means that but for the fraud there would not be a marriage.
2. it must affect the essentials of marriage.
1. it must adversely affect the possibility of normal marital cohabitation.
3. Some courts ave adopted a more modern approach to fraud: they accept the material fraud prong but reject the essentials of marriage prong.
2. WOLFE v. WOLFE 1979
1. She told him prior to the marriage that she was divorced. He said that he could not marry her because of his religion. She then said that her ex-husband was dead. And procured a death certificate to show that she was not lying. They got married and had a child. They separated and she instituted a divorce action and he counterclaimed with annulment stating that she misrepresented the fact that her ex-husband was indeed not dead. The trial court held in favor of the husband and annulled the marriage .
2. Whether this misrepresentation goes to the essentials of the marriage?
3. the court affirmed the trial court=s decision.
4. The court first said that the standard of proof was clear and convincing evidence. The court relied on Jordan v. Jordan where the court granted the annulment where the husband misrepresented the fact that he shared the same faith with her wife. Upon this case, the court here applied the same test. The fact that she misrepresented the death of her ex-husband was enough for him not to be able to perform the duties and obligations of the marriage. Thus, it went to the essentials of marriage.
3. Notes
1. concealing the fact that a person has been divorced more times than what she alleged did not go to the essentials of marriage.
2. Most courts will grant annulment if the wife had said that the child was his and in fact was not.
3. But they will annul if the wife said she was pregnant and he fact she was not because of the pari-delicto doctrine.
8. Marriage under duress
1. Introduction
1. it is a voidable marriage in most states.
2. it must have existed at the time of marriage.
2. WORTHINGTON v. WORTHINGTON 1962
1. Worthington claimed that he was forced to marry his wife under the threat that his step-father would kill his parents. The trial court decided that there was no clear and convincing evidence of any duress.
2. What is the standard applicable to prove duress.
3. The court affirmed.
4. The court said that a person who is claiming duress must show by strong, clear an convincing evidence that he was induced into the marriage. The court reviewed the evidence and said that he had ample time to flee and get away. They did not buy the argument that he married because of the threat on his parents. They remanded for allowance for the child.
3. Notes
1. the test for duress is a subjective one and is based upon the individual=s particular fear or force or coercion.
2. Stakelum v. Terral 196: discussed the evidentiary problem. The court found that upon the evidence presented, there was no threat of bodily harm to the plaintiff thus no duress.
9. Sham marriage and marriage in jest
1. Introduction
1. A sham marriage is a marriage for a limited purpose with a limited intent.
1. Some courts have said that if the plaintiff had married because of the pregnancy, the marriage was valid for all purposes despite the motives.
2. For immigration purposes, some courts have held those marriages invalid.
2. A marriage in jest is no marriage at all because there is no consent, it=s only a joke.
1. the burden is on the party to prove there was no consent.
2. most courts declare that such marriage are invalid because there was no intent to cohabit etc...
2. ROE v. IMMIGRATION & NATURALIZATION SERVICE 1985
1. Not to be read.
3. Notes
1. The courts are split on the validity of sham marriages.
1. for legitimation purposes, the marriage is valid for all purposes.
2. for immigration purposes, the marriage is invalid.
2. Clark criticized these various decisions saying that the marriage should be valid if there was consent.
3. Congress passed a statute (1986) for immigration purposes where permanent residency is given if the alien has been in the states for two years.
17. Conflict of laws: which marriage law governs?
1. Introduction
1. The general rule of lex loci contractus applies:
1. the law where the marriage was performed governs the legal requirements of the marriage.
1. it applies in all states except if it is against the strong public policy of the sister state.
2. The new approach has been established in the restatement second of conflict of laws.
1. the validity of the marriage is to be determined by the local law which has the most significant relationship to the spouses and the marriage.
1. the needs of the interstate and international systems
2. the relevant policies of the forum
3. the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue
4. the protection of justified expectations
5. the basic policies underlying the particular field of law.
6. certainty, predictability, and uniformity of result
7. ease in the determination and application of the law to be applied.
18. Annulment of marriage
1. Annulment of jurisdiction
1. Introduction
1. The traditional view:
1. the state where the marriage was performed has jurisdiction over annulment, unless the domicile of the parties is different at the rime of the marriage.
2. the modern view
1. where the domicile of the party who institutes to suit for annulment is where there is jurisdiction.
2. PERLSTEIN v. PERLSTEIN 1964
1. The plaintiff instituted an annulment action for bigamous marriage. The wife argued lack of jurisdiction. The trial court decided in favor of defendant.
2. What are the conditions for a jurisdiction to be the one that has to decide.
3. The court reversed,
4. The court first said that the court had subject matter jurisdiction as the plaintiff was a domiciliary of the state. The test is the domicile to determine in personam jurisdiction. The domicile gives jurisdiction whether it is an action for divorce or an action for an annulment. That applies to void or voidable marriage.
3. Notes
1. the traditional view
1. the relation back doctrine entails that the jurisdiction will have no subject matter jurisdiction as the marriage never existed. You Need in personam jurisdiction.
2. The modern view
1. the annulment is viewed more as an in rem action than as an in personam action. You only need in rem jurisdiction and the questionable marriage is the thing that links it to the in rem jurisdiction.
3. The defendant must be given due process notice.
2. Annulment grounds and defenses
1. Annulment is the legal declaration that the marriage never existed.
2. Void ab initio do not need a court proceeding
3. Voidable marriage needs the decree from the court.
4. Defenses:
1. if the parties do not bring an action for the annulment of a voidable marriage before the death of one of the spouses, the marriage is ratified.
2. there can be a statute of limitation. If there is no such statute, the general statute of limitations will apply.
3. Estoppel can be used: res judicata or estoppel by conduct.
4. The children of annulled marriages are in most states declared legitimate by statutory law.
3. Property and support rights on annulment
1. Introduction
1. if the marriage is annulled, a majority of jurisdictions have held that permanent spousal support cannot be granted absent specific statutory authority.
2. Another problem occurs when the spouse who has spousal support remarries which extinguished the support and the marriage is subsequently annulled.
2. Notes:
1. Some courts will held that the spousal support is not terminated if the subsequent marriage is annulled: application of the relation back doctrine.
2. Some other courts will refuse spousal support when the marriage was voidable but when it was void ab initio.
3. Some other courts will terminate spousal support even if the marriage was void ab initio.
4. problem:
19. Problem
1. Was it material fraud to affect the essentials of the marriage? No it=s no material fraud.
2. She can say yes.
3. The licence is defective.
4. There is defect in the official who married them: is it a mandatory requirement state, and then the marriage is invalid, except if there is a curative statute.
5. If it is directory, the marriage is valid.
6. Oral premarital agreement: part performance and reliance: then you=ve got a valid agreement.
7. He knew that he could not have babies at the time of marriage, that is material fraud.
8. Voidable or void ab initio for grounds.
CHAPTER 5 PROPERTY AND SUPPORT RIGHTS DURING MARRIAGE
20. Introduction
1. Rights and obligations flow from different sources:
1. Joint an separate ownership of real and personal property.
2. Marital rights of consortium
3. The common law doctrine of necessaries
4. Statutory support rights and obligations
5. Support enforcement remedies
6. The uniform marital property Act.
2. The current trend is to approach marriage as an economic partnership.
21. The married women=s property Acts and Feme Solo Estate.
1. Introduction
1. Upon marriage, her personal property acquired prior to or during the marriage became the property of the husband and a married women=s property also belonged to the husband.
1. due the unity of person doctrine: they became one. The husband was acting as guardian.
2. Courts started to improve the system allowing certain property to be held in a sole and separate use trust for the benefit of the wife as a separate equitable feme solo estate.
3. In the 1800's, legislatures started to enact statutes to eliminate and reduce those economic disabilities: Women=s property Acts.
1. it gives the right to acquire, own, transfer all kinds or real and personal property, to make contracts in her own name.
2. She can decide unilaterally to hold the property as separate property or the wages she received as separate property.
3. Keift Case 543 N.W.2d 37: she argue that she had the money but it was separate from the marriage.
4. in Michigan, Florida, the statute has been declared unconstitutional.
5. Ginsburg wrote a law review saying that some gender based statutes are kind if they are remedial laws for remedial ends ( making up for 300 years for economic discrimination against women.).
6. Against that argument, some say that these statutes foster gender discrimination and should be held unconstitutional.
4. A series of Supreme court cases made the legislatures to amend the statute to become content neutral.
2. JACOBS v. MEADE 1984
1. Not to be done
3. Notes
1. Some courts still uphold of gender-based statutes because it remedies a past situation.
2. Some commentators disagree because it foster stereotypes.
3. Some states have adopted the community property system: Ca, Arizona, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington.
1. equality is the cardinal precept in this system.
4. Under Married Women=s Property Acts, the wife can contract for job and get the wages a her own.
22. Rights of Consortium
1. introduction
1. Under common law, the rights of each encompasses services, society, companionship and sexual relationship.
1. no cause of action for los of consortium resulting from her injured husband. But the majority of courts allow the husband, the wife or both parties to bring a suit.
2. Today, it refers to the total tangible and intangible relationships prevailing between husbands and wives.
3. The spouse has a tort action right because of the right of consortium.
4. This is recognized in 42 states. Va said that neither spouse have a tort action right because of the property married statute.
2. Problem
1. Missed it completely!!!!!
23. Marriage as an economic partnership
1. Introduction
1. Under common law, any service rendered by the wife to the husband is presumed gratuitous. But it is a rebuttable presumption. You should get an oral agreement or a written agreement stating that it is not gratuitous, that there=s a business intent..
2. Some courts now defined marriage as a contract or partnership for profit.
3. The general view is that marriage is an economic partnership. Even if you have two pay checks.
4. O=Brien v. O=Brien N.Y.: it=s a partnership.
5. You work for the other spouse.
2. McGEHEE v. McGEHEE 1956
1. Husband and wife were in business together. They put the money together, they had joint bank accounts and one was in charge of the office and the other was in charge of the outside operation. Disagreement started between the couple and they decided to draw a partnership agreement. The husband did not respect the terms and the wife finally filed for enforcing the agreement. The chancellor decided that the partnership agreement was invalid. That he suffered duress to enter the contract.
2. Whether there was a partnership?
3. The court reversed.
4. It first said that there was no duress, that the husband did not respect the agreement and it was the only way for the wife to act. The court also sais that a wife and a husband have the right to enter into a partnership.
3. Notes
1. Eppersom v. Eppersom Va., parties were getting a divorce, bu while trying to divide the property, she argued that there was a business intent. Extrinsic evidence is enough to show the agreement.
2. See Chaachou v. Chaachou: where the court said that the wife should benefit from her labor as it went into the bigger partnership of marriage.....
3. A wife can be jointly indebted through the marriage partnership.
24. The doctrine of necessaries
1. Introduction
1. Under common law, a husband has the obligation to support his wife and his children under the doctrine of necessaries.
2. The doctrine allows the wife to buy anything that is necessary even without the consent of the husband.
3. That what makes the difference with agency principles. Under agency he will not be liable if he told a merchant not to sell to his wife, under the doctrine of necessaries, he will be liable.
2. Notes
1. Some courts have held that the doctrine of necessaries is gender-based thus unconstitutional. But it=s not a universal view. See Marshfield Clinic v. Disher 1982, where the court said that the husband was primarily liable and the wife secondarily liable.
2. The Va. legislature passed a law saying that it was constitutional.
3. Some states that it applies to husband and wife to be gender neutral.
4. Problem
1. the court held that the sofa was a necessary item!
2. should distinguish if it dictated by mother=s life or not, that=s what the court did.
3. it is not a necessary item.
5. Problem:
1. the court said that the mink was a necessary item because of the standard for living.
6. Family expenses Statutes have been adopted to complement the doctrine of necessaries:
1. the expenses to support expenses for family and children are chargeable to both wife and husband.
7. Separate maintenance doctrine: when the spouses live separately but have no intention to get a divorce, the husband must support the wife. It=s gender based discrimination. In Va., it=s gender neutral but if attacked it will be held that it is unconstitutional.
25. Statutory support Obligations during marriage.
1. Spousal and child support Statutes
1. The spouse who is in need, there will be support.
2. Destitute for 30 days or more. If the spouse who has the ability does not pay, he=ll probably do some jail.
3. To complement the doctrine of necessaries, most states have enacted spousal and child support statutes on marriage.
1. see book for examples:
1. Ca
2. Ohio
3. Va.
4. College necessary item? The courts are split on that, based on the doctrine of necessaries, if the family can afford college then they have to pay. In Va., it=s not a necessary item.
2. Notes
1. Support to children stops at the majority unless written agreement to the contrary. It also stops when the child is emancipated. The same when the kid entered into a valid marriage or when the kid is self-sufficient.
2. Problem
1. Courts are split when it comes to the support of children. Especially when leaving home. N.Y. said that if the dad said I=ll pay for college and dorm room, the girl can=t win on the dorm room
3. An exception that child support ceases at the majority is when the kid is mentally or physically disabled before reaching the age of majority.
1. Some courts have based their reasoning on common law principles.
2. Some other courts have based it on statutory interpretation.
4. Problem
1. Not done.
5. Pendente lite Statutes:
1. When a divorce or annulment action is under way, a needy spouse can petition the court with a pendente lite action to provide temporary spousal or child support until the annulment or the divorce action has been decided.
2. the decision to grant temporary child and spouse support does not bind the principal action.
3. Relative Responsibility Statutes
1. There was no common law obligation for children to take care of their parents but half the states have enacted such statutes. This could have come from religious command but in fact it came from a statute enacted by Elisabeth 1st to protect needy children and which then extended to parents.
2. Children are jointly and severally liable to support their parents.
3. Notes
1. one public policy argument to support this law would be the principle of reciprocity which implies an indebtedness to the parents for all they have done in the past for their children.
2. there is no such obligation if the parent during the minority wilfully neglected or deserted the child
3. Problem
1. no relative responsibility statute in Texas. The court asked if the son lived with his mother in California, and did she supported. The son has to pay support his mom under the Ca Statute.
4. Problem
1. the dad did not get the support because he deserted, Ohio law applied instead Pennsylvania law
5. Medicare and medicaid problems
1. originally, it was prohibited to take into account the income of an adult=s child for reimbursement purposes.
2. Now, it is possible for children to support their parents without violating the federal statutes.
26. Support Enforcement Remedies
1. The Uniform Reciprocal Enforcement Of Support Act
2. Federal Ans state income Withholding Statutes
CHAPTER 9
DIVORCE OR DISSOLUTION OF MARRIAGE
27. Introduction
1. Historical background
1. It is the legal termination of a marriage.
2. In early ages, divorce only belonged to the husband.
3. During the Punic Wars, the Roman women started to be able to divorce at will.
1. Also emerged the mandatory property settlement agreement which required a husband divorcing on minor grounds or because at fault to return the dowry or other antenuptial property.
2. the custody of the children was given to the father.
4. In England, a rather informal marriage was replaced by the church marriage and the doctrine that the marriage was an indissoluble bond.
1. there was no such absolute divorce under canon law.
1. they could have the marriage annulled.
2. they could petition for a permanent separation called a divorce a mensa et thoro. But they could not remarry.
5. The American courts refused to apply the ecclesiastical system and provided that divorce grounds could be granted by the colonies legislatures.
2. Historical fault grounds and the no-fault revolution
1. Since the beginning, the petitioning party had to show that the spouse was at fault for the divorce.
2. The public policy was thus to encourage marriage and discourage divorce.
3. Jacobs v. Jacobs 1945 (Va): there is no divorce absent a serious statutory marital breach.
1. that includes adultery, cruelty and desertion.
4. So parties had to find fault grounds or get a migratory divorce where the law was more clement.
5. The no-fault divorce surface in the 1960's.
6. In August 1970, the Uniform Marriage and Divorce Act was proposed, the ABA approved of it and recommended it passage.
7. Section 302 of the Uniform Act provides that a court shall enter a dissolution of marriage wen the court finds the marriage is irretrievably broken: if the parties have lived separately for more than 180 days before commencement of the proceedings.
8. 13 states have adopted that as the sole ground for divorce and 20 states provide the ground in addition to fault-grounds divorce. The rest have a no-fault type divorce in addition to fault ground divorce.
3. Current divorce statistics and Concerns
1. With the no-fault system, the issues have shifted from moral to economic issues including the division of the marital property, child custody and support and, spousal support.
2. Because the divorce rate has expanded, the law is being reassessed and refined all the time. It is in constant evolution.
28. Divorce jurisdiction
1. The domiciliary requirement
1. Subject matter jurisdiction is governed by state statutes, federal courts have no jurisdiction over granting divorce and alimony.
2. The domicile of one or both parties is the only basis for divorce jurisdiction since each state by virtue or its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, See Williams V. North Carolina I & II.
3. This domicile requirement is based on the concept that marriage is a contract.
4. Definition:
1. Domicile means where a person intends to make his/her home and is physically present
2. it is different from residence, because there is no subjective intent to remain more or less permanently.
3. But as a jurisdictional requirement for divorce, residence has generally been interpreted as meaning domicile.
5. Lack of divorce jurisdiction can never be waived and it can be collaterally attacked later on.
6. SOSNA v. IOWA 1975 USSC
1. The couple separated after and lived in N.Y., then the wife moved to Iowa and petitioned for a divorce. The husband made a special appearance to contest the jurisdiction. The court agreed stating that the husband was not a resident of Iowa and that the wife was not a resident either because there was a statutory requirement of being in the state for at least a year. The court of appeals affirmed. The wife then brought a suit in the federal district court alleging that the statute was unconstitutional. The district court decided that the requirement was not unconstitutional.
2. Whether a statutory requirement relating to residency for divorce purposes is constitutional.
3. The USSC affirmed and said that it was not unconstitutional.
4. The USSC distinguished the cases where statutes have been struck down on the basis that this statute only established a delay and not a ban on the use of the courts of Iowa to get a divorce. It distinguished with some cases where the durational requirement was made for welfare, medical care, for voting. The court then said that the statutes that were struck down were passed for budgetary purposes and here it was not the case. It also said that this durational requirement avoided collateral attacks that would happen if it was implemented. To avoid divorce mills states, like Nevada.
5. Dissent:
1. Marshall rephrases the issue in terms of interstate travel, is that an impediment to travel. He answered in the affirmative.
2. he also said that the wife actually suffered an injury as she has to wait a year to be able to divorce.
7. Notes
1. Some have criticized the residency requirement because people traveled much more and that it is inconsistent with the no-fault system.
2. Some have also argued that the domicile requirement may be unconstitutional in ex parte divorce under the minimum contacts standard established in Shaffer v. Heitner 1977.
1. Clark said that in rem and in personam jurisdiction require the minimum contacts to satisfy due process requirements but the court had said that it was not changing the jurisdiction rules, thus it would not be unconstitutional.
3. All states have a durational requirement ranging from six weeks to one year.
4. An exception to this domicile requirement is applied to military personnel and their spouse. Va has the exception even for federal bases like fort Belvoir.
1. Soldiers and sailors Relief Act: if they want a stay in the divorce, it is reversible error for the court to go through the divorce or the child custody issue, etc....
5. Problem: not done.
6. Venue:
1. They generally provide that the suit must be brought
1. in the county of the parties= last marital domicile or
2. in the county where the defendant resides or if out-of-state,
3. in the county where the plaintiff resides.
2. venue rules may be waived in some states. In other states, the court have interpreted the statutes as being mandatory and jurisdictional and as such cannot be waived.
7. Service of process:
1. it must be made in accordance with the statute requirements of each state.
2. Strict compliance is still needed to give proper notice to the defendant.
2. Migratory divorces
1. The need to go to another state has been lessened with the adoption of no-fault divorce systems, but sometimes the spouse will want a quick divorce.
2. Sister state migratory divorces
1. Art. IV ' 1 of the U.S.C: each state must give full faith and credit to public acts, records, and judicial proceedings of every other state.
2. in Haddock v. Haddock 1906 USSC: the husband moved to get domicile in another state, the USSC said that the NY court did not have to recognize the ex-parte divorce made in Connecticut.
3. Williams v. North Carolina 1942: I: two persons went to Nevada and established residence and then had a divorce from their respective spouses without service of process in Nevada but the decree was mailed to their spouses. They were prosecuted and convicted of bigamous cohabitation. Douglas overruled the Haddock decision and said that it should be given full faith and credit even though the policy of one state may contradict the policy of the other. II: Frankfurter in Williams II reaffirmed Williams I, the court then said the North Carolina was not bound by the Nevada jurisdictional finding of domicile and could actually determine if they had acquired Nevada domicile.
4. These two cases apply to ex-part divorce.
5. In Sherrer v. Sherrer 1948 USSC:, the husband did not contest the jurisdiction during the proceedings. The husband then attacked the validity of the divorce in another state. The USSC said that the state had to give full faith and credit to the Florida court.
6. the difference between Sherrer and Williams is that in Sherrer it was a bilateral divorce.
7. Notes
1. Problem:
1. post divorce behavior, may show that it is a sham domiciliary. Sham domicile based on Williams I. try to get a Williams II type decision. The court will refuse to do what it is asked to do, See Colby v. Colby.
2. Kessler v. Fauquier National Bank, they ask the Va court to recognize the divorce, one of them went back to Florida to get a decision that it is invalid divorce. They went to back to Va, which refused to recognize the invalidity because of res judicata.
2. problem:
1. show evidence of your domiciliary intent. It was not ok with the N.Y. court, but it would be ok with Nevada court.
3. Foreign country migratory divorces
1. Foreign divorces are not recognized under art IV'1 of the Constitution. They are under the principle of comity as enunciated in Hilton v. Guyot 1895
1. definition:
1. neither matter of absolute litigation, on the one hand, nor of mere courtesy and good will, upon the other. But it is a recognition which one nation allows within its territory to legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience , and to the rights of its own citizens or of other persons who are under the protection of its laws.
2. it is completely discretionary
2. a state may not give comity to a foreign divorce when its contrary to is public policy or prejudicial t its interests.
3. Refusal to grant comity are based on the following grounds:
1. insufficient proof of a foreign judgment
2. lack of finality of a foreign judgment
3. lack of subject matter jurisdiction in the foreign country
4. lack of personal jurisdiction
5. insufficiency or opportunity to be heard
6. clear mistake of fact or law made by the foreign court in its judgment
7. procurement of the foreign judgment by fraud
8. the foreign judgment contravenes the public policy of the recognition forum.
4. MAYER v. MAYER 1984
1. Mayer got a divorce in the Dominican Republic. Then she remarried Mayer. Mayer asserted that the divorce was invalid. The trial court said that the divorce was invalid because made in Mexico. Mayer wife appealed.
2. whether the court had to recognize the validity of the divorce.
3. The court reversed.
4. the court said first that Art. IV '1 did not apply to foreign divorces, only the doctrine of comity does. As there was no residency established in the Dominic Republic, the purpose of getting the divorce there was to be quick. The court also said that it would be against the state public policy to enforce such a divorce decree. But the court said that because her husband helped her to get the divorce in the Dominican Republic that he was estopped under the doctrine of quasi estoppel which required that one out f three elements met:
1. the attack on the divorce is inconsistent with prior conduct of the attacking party.
2. the party upholding the divorce has relied upon it or has formed expectations based on it.
3. these relations or expectations will be upset if the divorce is held invalid.
5. Notes
1. Most courts will not recognize an otherwise valid foreign divorce if the party did not have a good faith domiciliary in the foreign nation at the time of divorce.
1. this applies to bilateral, ex-parte divorce proceedings and mail order divorces.
2. A minority of court will recognize such divorce with mere physical presence but only for bilateral divorces. See Rosenstiel v. Rosenstiel N.Y. 1965, which has been widely criticized because it overrode strong public policy.
3. Problem
1. .
4. Estoppel defenses in attacking a void divorce:
1. estoppel by conduct gave rise to the modern concept of a practical recognition of a divorce decree rendered in a foreign jurisdiction where neither spouse is domiciled.
2. practical recognition
1. estoppel,
2. laches,
3. unclean hands,
4. similar equitable doctrines.
3. Not all courts have followed this approach, in Everett v. Everett, the court said that a bilateral Mexican divorce was invalid, thus the defense could not be raised.
4. there are three theories that the courts apply:
1. the traditional approach
2. the practical recognition
3. under the status v. property right doctrine, an estoppel defense would ne deemed inappropriate whenever a spouse bring an action to determine his or her marital status but would be appropriate where supports are concerned.
5. An equitable estoppel does not validate a void divorce, the party may not attack the invalidity of the divorce but a third party may attack it.
5. A lot of countries have adopted the Hague convention to avoid these problems, but the U.S. have not signed it so it is not bound by it. Too bad!!!!!
3. Collateral attack on a void divorce
1. Sister state divorces:
1. ex-parte
1. assuming valid jurisdiction and due process notice, full fait and credit must apply. But the non-appearing party may later attack the divorce.
2. If the divorce is invalid, the petitioning party may be estopped by his/her conduct but the non-appearing party is not estopped.
2. bilateral:
1. even if invalid, it must be given full faith and credit.
2. Foreign country migratory divorces:
1. the majority of courts will refuse to recognize foreign divorces unless one of the parties has a good faith domiciliary. Some courts will recognize the divorce without the domicile requirement.
2. all court will refuse an ex-parte divorce or mail-order divorce.
3. The State:
1. the state is not barred from collaterally attacking a divorce by prosecuting under bigamy or adultery.
2. But, it might be possible that the state may be barred after the Sherrer case.
4. Interested third parties
1. Johnson v. Muelberger 1951 USSC: the court said that because the sham domicile state did not recognize collateral attack by the daughter as a stranger, and has there was a general appearance by the father, she was barred from attacking under the doctrine of res judicata as enunciated by the Sherrer case.
2. See George v. King 208 Va 126.
1. Wife got a second marriage and did not work. The second husband went to lawyer to get a divorce. The lawyer said that the first divorce was invalid, he should argue annulment not divorce. The Va Court said that he could not do that because there was no pre-existing right in the first marriage. Majority view.
2. marriage by estoppel, third party with no standing to collaterally attack the first marriage.
4. Problem
5. The divisible divorce doctrine
1. With Williams I, any ex-parte divorce gets full faith and credit in any other sister state. But what happens to the rights created?
2. In Estin v. Estin 1948 USSC,
1. the wife had secure a decree of legal separation with spouse support. The husband then instituted a divorce in Nevada without any provisions for spouse support. When he stopped paying, she brought an action in N.Y., he appeared and argued that under Williams I, the N.Y. court should give full faith and credit.
2. The court stated that the ex-parte divorce did not necessarily result in the termination of all financial incidents of the marriage, since her prior judgment was a property interest that could not be affected by a Nevada divorce.
3. This is what is called the concept of divisible divorce, where the any marital support or property cannot be affected.
3. VANDERBILT v. VANDERBILT 1957
1. The couple separated and she moved to N.Y. He instituted a divorce in Nevada, she was not served with service of process and did not appear. She instituted an action in N.Y. asking for separation and alimony. The court sequestered his property even though there was no personal jurisdiction over him. He appeared specially ad argued that the full faith and credit applied. The court said that the divorce was valid but according to its civ. pro. decided that he owed her support. The Court of Appeals affirmed.
2. Whether the court could give support even though the divorce was valid and thus not applying the full faith and credit clause.
3. The USSC affirmed the judgment.
4. The court said that even though the case at bar was different from the Estin case because of the facts, the N.Y. court was right in not applying the Williams I decision because the Nevada court had o personal jurisdiction or subject matter jurisdiction to extinguish any right of the wife.
4. Notes
1. the concept has been adopted by a majority of the courts.
1. A COURT CANNOT EXTINGUISH, TERMINATE THE RIGHTS OF A PERSON UPON WHOM THE COURT HAS NO PERSONAL JURISDICTION.
2. in a minority of court, the local rule would be the opposite, and the ex-parte proceedings would cut off any spousal support.
3. Problem
4. In Simons v. Miami Beach First National Bank 1965 U.S., the Supreme court said that an ex-parte divorce could extinguish any dower rights.
5. problem:
1. if you apply Vanderbilt, she can get them. Get the divorce In Pennsylvania and served her personally. Because you need a certain period time to get residency, Nevada : 6 weeks until then you=re still a domiciliary of the state.
2. She can attach the property in Aims.
6. Long arm statutes:
1. Those have been used to avoid the problem encountered in Estin and Vanderbilt, that gives the court jurisdiction over both parties even if one of the spouse does not reside in the state anymore.
2. the minimum contact requirement for such statutes to be constitutional entails that the spouses had at the time of the separation upon which the divorce decree is based maintained a domicile in the state.
3. It does not apply to annulment generally.
4. If the long arm statutes does not provide specifically provided for divorce, it is a problem you have to argue that it is a contract.
29. Divorce Grounds and defenses.
1. Fault grounds for divorce
1. Overview
1. most states have incorporated their no-fault grounds into the fault grounds system. Fault is a factor in determining certain issues such as child support and alimony.
2. Adultery, cruelty, and desertion
1. it is currently a ground in 28 states.
1. it generally includes intercourse by either spouse with someone other that his or her spouse ( same sex or not).
2. a spouse would be guilty of adultery if they were still married but separate and had intercourse.
3. the problem is proof! Some states require clear and convincing evidence, others only require circumstantial evidence.
2. SURBEY v. SURBEY 1987 (Va.)
1. Trial court granted divorce to husband but awarded spousal support to wife. He said that he had to leave the residence because of her cruel behavior, she answered that he deserted the home without any cause. Both spouses hired P.I. after the separation. They both had proof of adultery. The both argued adultery.
2. Whether the court was right?
3. the court affirmed.
4. The court stated that because they were both guilty of adultery, they could not use it as defense. The curt said they were barred because of the recrimination doctrine. The court also said that it is not because the divorce was granted on no-fault grounds that the court could not grant spousal support.
3. Notes
1. The Va legislature amended the code stating that it was not because the court granted divorce on fault grounds that there could not be spousal support.
2. Cruelty is a traditional fault ground.
1. It is present when there is bodily harm or a reasonable apprehension of bodily harm.
2. Most courts recognize both physical and mental cruelty.
3. a single act of violence will not suffice to grant divorce based on cruelty.
3. Desertion:
1. it is the breaking off of matrimonial cohabitation with the intent to desert in the mind of the deserting spouse.
2. It can be defended by justification ( misconduct of the other spouse), the misconduct may be another divorce ground for some courts and for other courts only require that it is inconsistent with matrimonial obligations.
3. There are other grounds such as convictions, drunkenness or drug addiction or insanity.
4. Defenses:
1. Connivance:
1. the corrupt consenting by one spouse to the marital fault of another. It has been based on the clean hands doctrine.
2. Collusion:
1. it=s fraud upon the court by the husband and wife in alleging evidence of a marital offense that was not actually committed.
3. Most states asked that there is a third party corroborating the ground for divorce.
4. Condonation
1. it is the conditional forgiveness of a marital fault. If the marital fault is repeated, the condonation is nullified and the divorce ground is revived.
5. Recrimination:
1. if both souses are guilty of marital misconduct, then the fault-based divorce action must be dismissed. They are in pari delicto.
6. a minority of states have a statute of limitation to bring an action for adultery ground.
7. Discovery is usually liberal as long as the information is relevant.
8. Problem:
1. Enough evidence? Circumstantial evidence. The answer is that it is up to the trial court as the trier of fact to determine if there is enough evidence. Th judge bought the argument by the attorney. The supreme court said it was adultery but there was no abuse of discretion, not overturned. Dooley v. Dooley Va.
2. Living separate and apart
1. Introduction
1. most of the states require that spouses live separate and apart before bringing an action in divorce.
2. SINHA v. SINHA 1987 (Pa.)
1. Sinha, husband, came to the States to get a degree. His wife could not obtain a visa so he went alone. They exchanged letters over three years and then he instituted a divorce action in N.J. he then dismissed it and moved to Pa and re-instituted the action. The court game him the divorce. The wife appealed.
2. the court reversed.
3. Whether they lived separate and apart to comply with the statute.
4. the court stated that the intent to live separate and apart must be expressed three years before the divorce can be instituted. Because he had correspondence wit his wife until a few months before the divorce action. The court said that there was no intent to live separate and apart for three years, thus he could not be granted a divorce just because they physically separated.
3. Notes
1. the spouse intent to dissolve the marriage must be clearly manifested before the spouse can live separate apart.
2. There cannot be a judgment by default in a divorce proceeding. So it must be proven even if the divorce is uncontested.
3. A minority of states provide that living separate and apart divorce grounds must be voluntary and mutual consent of the parties. However a majority of states do not require voluntariness,
3. No-fault divorce grounds
1. Introduction
1. most states have incorporated no-fault grounds in their fault ground system.
2. 6 states have abolished fault grounds entirely and use instead the irreconcilable differences, incompatibility of character or living separate and apart as their only no-fault grounds.
3. The uniform Marriage and Divorce act provides that if the spouses have lived 180 days separate and apart, the marriage is irretrievably broken.
2. GROSSKOPF v. GROSSKOPF 1984 (Wy.)
1. Wife and husband got married while in college. He graduated before her and got a job. Three children were born out of the marriage. They separated and he filed for divorce. Their careers were successful and they got a lot of assets. The trial court entered a divorce decree where the wife got custody and the husband had a right to have the children. She was awarded cash and he was left with liabilities. The court refused to give alimony or attorneys= fees. The wife appealed.
2. whether the trial court erred.
3. the court affirmed.
4. The court said that her behavior amounted to fault and thus the court did not err in granting the divorce to the husband saying that the evidence substantially supported the fault. The court then said that the trial court did not err in considering fault in awarding everything. The court said that the no-fault grounds have been incorporated in the fault system. The court went into analyzing if the court erred in not granting alimony and the court said that if the spouse was at fault it would get unusual circumstances to award it. The court then said that to reverse the decision they should use an abuse of discretion standard and there was no evidence of abuse here.
3. Notes
1. fault is a factor in determining what the court will grant to the spouses.
2. There is no uniformity in applying fault as a factor.
3. Some states have rejected the application of fault as a factor for equitable distribution.
4. Reason not to apply fault to determine equitable distribution:
1. the financial needs and abilities of the spouses, rather their marital misconduct, should ultimately determine property and support issues on divorce.
5. Problem
6. Some courts order mandatory conciliation and mediation before granting the divorce.
30. Ethical issues for the family lawyer
1. Introduction
1. It may result in:
1. the decree divorce being vacated.
2. the attorney being sued in a substantial legal malpractice action,
3. the attorney being suspended or disbarred from practice
4. all the above.
2. Dual representation in divorce proceedings: Is it ethical?
1. Introduction
1. Some commentators have argued for a total prohibition of dual representation in divorce cases under the rationale that the friendly or uncontested divorce is actually a myth because all divorces have a significant areas of disagreement.
2. See Ishmael v. Millington 1966 Ca, where the attorney acted as a scrivener and made the court believed that he was representing the wife whereas he had no real idea of the financial status of the husband who told him what to write in the separation agreement.
3. if the divorce is friendly, if any dispute arises, the attorney has to withdraw, and they have to hire two different attorneys.
4. Some courts have overturned separation agreements and other marital contracts.
5. they waived their client-attorney privilege and the lawyer may be asked to testify in court.
6. if they have accepted after full disclosure, it may not be unethical. See Levine v. Levine 1982 ( N.Y.).
7. if one of the spouses is a financial need, then he/she requires independent counseling and representation.
2. COULSON v. COULSON 1983 (Oh.)
1. Wife and husband separated when he told her that he was seeing another woman. There were some discussions about the division of the property and he asked the attorney to draft a separation agreement which they signed. Salzer instituted the divorce saying that he representing the wife, an associate of the firm answered representing the husband even though he did retain to represent him. At the hearing, the judge asked if the agreement was equitable, to which the wife turned to the lawyer who answered that it was. The wife then moved for relief alleging fraud upon the court. The trial court and the court of appeals held in her favor but the court of appeals certified to the Supreme court because of dissension between courts.
2. Whether there was fraud upon the court.
3. the court said fraud upon the court encompasses any fraud connected with the presentation of a case to a court. The court said that the trial court did not abuse its discretion in finding that there was fraud because the lawyer did not fully disclose that he had limited representation. The court rejected the reasonable time argument. The court also rejected the argument about res judicata because the issue that were decided in the two prior motions had nothing to do with fraud.
3. Notes
1. fraud upon the court is definitely a ground for disciplinary measures ( suspension or disbarment) against the attorney.
2. A lawyer must exercise reasonable care, skill and diligence as used by other lawyers in the jurisdiction.
1. Yes it should, because he probably did not research to see if it was true.
2. The court should hold against the firm on the two issues.
3. No evidence about it, the court should hold in favor of the lawyer.
3. Problems with confidential information
1. Introduction
1. a lawyer who has represented one or the other or both spouses in the past may be disqualified from representing the other spouse in a divorce if there is a substantial possibility that knowledge acquired in a former representation could be used against the former client in a subsequent divorce action.
2. WOODS v. SUPERIOR COURT OF TULARE COUNTY 1983 (Ca.)
1. Husband and wife has a family corporation. She filed for a divorce and retained a lawyer. Her husband retained the corporate lawyer and she moved to disqualify him and the firm. The trial court rejected the motion on the basis that there was no evidence of disclosure of confidential information.
2. whether there is a need of showing of disclosure of confidential information.
3. the court reversed
4. the court held it was not necessary to show evidence of disclosure. What was important is the risk of such a thing and the impropriety rule as well.
3. Notes
1. Problem
1. is it privileged?
1. If the client will commit fraud upon the court, you have to disclose the fact to the court in the future.
2. if it=s in the past, it depends if it=s privileged info or not.
2. he has to withdraw
2. problem:
1. unaware of the fraud at the time of the representation. You don=t have a duty to come forward because it already happened and the IRS is not a tribunal. The workers=s Comp is not a tribunal either.
2. privilege communication about the pregnancy.
3. Child abuse: come forward because it may continue in the future.
31. Alternate dispute resolution
1. Overview
1. It usually decrease the emotional and financial burdens that litigations put on the spouses.
2. Divorce mediation
1. It has been defined as a process where the parties to a divorce are assisted by an impartial, professional mediator in reaching agreement on related matters such as child and spousal support, child custody, and marital property division.
2. The ABA formulated standards of practice for family mediators.
3. Notes
1. They are problems with the standards like for confidentiality.
2. The other problem is that the mediator cannot represent any of them, thus they will have to get another lawyer to represent them if a divorce acion ensued.
4. Arbitration
1. Introduction
1. it resembles the litigation process but it avoids the delay and the expenses.
2. BROWMER v. BROWMER 1980 (N.Y.)
1. they drafted a separation agreement where he had to pay for child support and tuition fees. He asked her to decrease but she refused. He then decided to do it anyway. She asked for arbitration. He moved for a stay of the arbitration and asked for an arbitration with a different issue. The trial court rejected hers and accepted his. The court of appeals modified saying that the modification of support payments are non arbitrable.
2. whether it was arbitrable.
3. the court affirmed.
4. the court held that it was not arbitrable and that what the husband asked was a rewriting of the agreement because it did not include this for arbitration. The court rejected the use of case because that in the case the wife agreed to the arbitration. Here they apprently did not.
3. Notes
1. none
CHAPTER 11 EQUITABLE DISTRIBUTION OF PROPERTY ON DIVORCE OR DISSOLUTION OF MARRIAGE
32. Introduction
1. Because most jurisdictions have no fault grounds support, there was shift from moral to financial issues.
1. Now, a needy spouse will only have support if she or he lacks sufficient property to provide for his o her reasonable needs or cannot acquire support through appropriate employment.
2. Community property states
1. 8 states have adopted french or Spanish systems.
1. Arizona
2. California
3. Idaho
4. Louisiana
5. Nevada
6. New Mexico
7. Texas
8. Washington
2. Whatever property is acquired, earned, gained or purchased by either the husband or the wife during the marriage belongs to both spouses by halves, absent any statutory modifications to the contrary.
3. It provides for a classification of marital property and separate property.
4. It is not determined by title but by date and manner or the property acquisition.
3. Equitable distribution states.
1. Under English common law, husband and wife were considered one legal entity. The husband was the one enjoying control and ownership rights over all marital assets..
2. With statutes, that was changed.
3. Dual property equitable distribution states
1. absent any separate agreement, the judge may divide marital property but cannot divide separate property.
2. separate property may be defined by any property acquired prior to the marriage and any acquired after the last separation or divorce, by gift bequest, devise or descent, any property acquired by exhange with separate property and not commingle with marital property.
4. All property equitable distribution states
1. if there is not enough marital property to divide equally, the judge may also divide separate property.
33. Marital or separate property or both?
1. Introduction
1. It requires a three step approach
1. the classification of marital and separate property
2. the valuation of the property
3. the distribution of such property, though not necessary as am equal division.
2. HARPER v. HARPER 1982 (Md)
1. The husband acquired a parcel of land before the marriage and started the payments on it. Then he married an continued to pay for the land. Subsequently, he built a house where the spouses lived. Then they got divorced, and there was a problem determining if it was marital property or not. The trial court held that it was marital property.
2. Whether it was marital property or separate property.
3. The court remanded.
4. The court reviewed all the different jurisdictions. There are two rules, the the title inception theory and the source of the funds theory. The court held that maryland would adopt the source of the funds theory. It defined the term acquired
1. property attributable to the contribution of the non marital property is characterized as non marital property and its value is not subject to equitable distribution
2. property directly attributable to contributions of marital property is characterized as marital property and its value is subject to equitable property.
3. as here the property is part non marital and part marital. The same for the residence that was constructed on the land that was part marital and part non marital.
3. Notes
1. The Va court rejected the source of the funds theory, there can only be marital property and separate property, there can be no mixed property.
34 Transmutation of property
4. Introduction
1. Property can change status from separate to marital or to mixed property.
5. STOCKDALE v. STOCKDALE 1982 (Id)
1. There was a divorce and there was an issue about a residence that was supposed to be hers and not his. The house was sold to buy a new house. He claimed that it was marital property because his wife interest has been transmuted. The trial court found that there was no transmutation theory and even if there was, the husband did not carry his burden.
2. Whether transmutation exists in this state.
3. The court affirmed.
4. The court held that contrary to cal there is no section providing for transmutation. As such there could not be transmutation during the marriage. It was separate property because it was an oral argument.
6. Notes
1. None
34. Property acquired by gift or inheritance
1. There are considered separate property, unless it has been commingled or transmute into marital property.
2. Notes
1. If separate property is used to acquire marital property it is sometimes considered marital property through transmutation. It is a gift to the community.
35. A fairness test in approaching marital property division
1. Clark
2. Notes
36. Passive v. active appreciation of separate property
1. If the value of a property acquired before the marriage increased, it might be considered marital property depending on certain factors.
2. ALETTO v. ALETTO 1988 (Pa)
1. She received prior to the marriage some stock. She sold it after the marriage for a large profit. The trial court held it was separate property.
2. Whether it was separate property or not.
3. The court reversed
4. The court held that it was marital property even though the trial court had not the benefit of the decision saying this, the court held that the anthony decision applied. It rejected the thoery that the spouse had to put effort for it to become marital property.
3. Notes
1. Not every court accept this holding, when it is due to external market force. Like N.Y.
37. Personal injury and worker=s comp awards
1. I
2. IN RE MARRIAGE OF BURT 1986 (Ill)
3. Notes
38. Professional degrees, certificates or licences
1. I
2. O=BRIEN v. O=BRIEN 1985 (N.Y)
3. Notes
39. Pensions and retirement plans as marital property
1. I
2. Tax reform
3. Notes
4. IN RE ROLFE V. ROLFE 1988 ( Montana)
5. Notes
40. The family home
1. I
2. Notes
3. IN RE MARRIAGE OF WOODWARD 1988 (Iowa)
4. Notes
41. Marital debts and obligations
1. Pb
42. Valuing a business and professional goodwill
1. DUGAN v. DUGAN 1983 (N.J.)
2. Notes
43. Valuation and distribution of marital property.
1. I
CHAPTER 13 CHILD CUSTODY AND VISITATION
44. I
45. I
46. Factors in disputed cases
1. The best interest standard
2. Determining the best interest - factors
1. The gender of the parents
2. Child=s preference
3. Religion
4. Race
5. Parental fitness
1. sexual behavior and preferences
1. M.A.B. v. R.B. 1986 ( N.Y.)
1. the parents got married and had three children. During the marriage, the husband told his wife that he was gay and left the household. A divorce ensued and they were awarded joint custody. The mother had physical problems and the older child was troublesome. He had bad grades in school, misbehaved, he then started therapy and the doctor advised that the child lived with his dad who was living with his boyfriend. The mother first refused but then accepted because she couldn=t handle him anymore. The child=s conduct ad grades improved very nicely. After five months, the mother told the husband that she was relocating in florida. He refused and she decided to keep the oldest child. The child=s conduct start decreasing again and he stopped going to therapy and she acted as a substitute. The mother applied for a modification of the decree and the father cross-claimed to ask sole custody of the oldest child. The trial court awarded sole custody of the oldest to the father. This appeal followed.
2. whether homosexuality is a bar to have custody?
3. the court affirmed the decision
4. the court went on saying that what was important was the interest of the child, it said that when with his father, the child=s conduct improved and that even though his homosexuality was a problem for the child it was not impossible for the boy to live with his dad. the court said that the mother was incapable of controlling the child and that for the most part it was her parents who were taking care of the child and because of their condition it was not in the best interest of the child to stay with the mother. The court also said that it was impermissible as a matter of law to decide the question of custody on the basis of the father=s homosexuality.
2. notes:
1. courts are split on the importance of the sexual orientation of the parent as a factor. Some do not use it, some say it=s the dominant factor.
2. physical and mental fitness:
1. IN RE MARRIAGE OF CARNEY 1979 (Ca)
1. the spouses were married as teenagers, they had two kids and separated a little thereafter, a separation agreement was drawn and they agreed that he would have custody of the kids. He lived with a new girlfriend and then he had an accident rendering quadriplegic. He instituted a divorce action and the mother asked for sole custody of the kids based on his handicapped. The trial court granted custody to the mother based on the handicapped.
2. whether it is proper to use physical handicapped as factor to determine custody?
3. the court reversed the trial court=s decision.
4. the court said that it was impermissible as matter of law to use handicapped to decide custody. The court went on saying that the court was prejudiced, that the mother would actually not be able to take care of the kids and refuted every single argument made by the mother about how the father could not take care of the kids. What was important in the eyes on the court was that the dad was here to bring his kids up. It rejected the reasoning of the trial court saying that the dad could not participate in physical activities, that it was speculative to determine that he would not improve his conditions.
2. notes:
1. mental illness is factor but it has to be the present mental condition of the parent not what will happen in the future.
3. relative economic positions of the parties
1. BURCHARD v. GARAY 1986 ( Ca)
1. the two persons had an affair and she got pregnant, he denied paternity until blood tests showed he was the father. He then moved in but it didn=t work out. He asked for visitation rights and she filed a petition for exclusive custody. The court ruled that the change of circumstances rule did not apply as there was no decree determining custody before that. It also awarded custody to the father because he had a better financial status than the mother. The court also applied the best standard rule.
2. whether the court did apply correctly the best standard rule?
3. the court reversed and remanded.
4. the court first said that the economic advantage is not a permissible basis to grant custody. But the court said that the trial court did not apply the best standard rule correctly. It thus remanded to determine what was the best interest of the child.
3. The primary caretaker presumption
1. PIKULA v. PIKULA 1985 ( Min)
1. they were married early and had two children, he worked for his dad and she was finishing high school and taking care of the house. He had an alcohol problem and was violent. He went through therapy but stopped it as well as the AA meetings. He started drinking again. The trial court granted custody to the father but the court above reversed saying that the trial court failed to apply the factors enunciated in the statute. The social workers advised to give custody to the mother.
2. whether the court apply correctly the statute.
3. the court reversed and remanded
4. the court first said that the court below should not have decided the factors based upon the facts of the case. The court then said that the important matter was the best interest of the child. Then it went on saying that the court should have determine who was the primary care taker. The court enumerated the factors to be used to determine who is the primary caretaker
1. preparing and planning meals
2. bathing, grooming and dressing
3. purchasing, cleaning and care of clothes
4. medical care including nursing and trips to the physicians
5. arranging for social interaction among peers after school
6. attending to child in the middle of the night, waking child in the morning
7. disciplining
8. educating
9. teaching elementary skills.
2. Notes
1. garska v. McCoy 1981: it was the first case that established the primary caretaker presumption.
2. the pikula decision was criticized because it replaced the best standard rule and the factors providing in the statute.
47. Visitation
1. Visitation rights of the noncustodial parent
1. STERLING v. STERLING 1987 ( Ohio)
1. they got divorced and the custody of the child was given to the mother. He had reasonable visitation rights. She got remarried and moved with her new husband because of a new job he got. The agreed to share medical expenses and a right for him to see the kid. The father then filed a petition because she interfered with his rights. And she answered by saying that her ex did not pay his share of medical expenses. The referee said that he was not going to change the visitation schedule and that the medical expenses were not included in the arrangement. The trial court agreed with the referee except with the medical expenses. Thus the husband appealed.
2. whether the court was right.
3. the court affirmed.
4. the court said that it was a medical acre that was included in the agreement even though it was psychology care. The court also said that she had to share the expenses for transportation as she was the one deciding to move the court rejected her argument that she did not have a job as her husband moved for a better job. The court did not want to disrupt the decision of the trial court because it had wide discretion.
2. Notes
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