MARRYING - Loyola University New Orleans
John Demos - Images of the American Family, Then and Now
1. what the function of the family and why the law gets involved in the family
2. family as a community - spirit of time was that they were not conscious of the type of family
3. family was building block of social organizations
4. family as refuge - getting more self conscious about the family - family was in a course of decline
5. Family had a function of protection protecting the society, not just the individual
6. Highly differentiated roles between members of family
7. Husband = head of the household; breadwinner and representative of the family to the outside community
8. Wife - homemaker, mother, structured role
9. a lot of multi-generational families
10. family as the encounter group - growing monotony of the rat race and the home became the place for recuperation
Constance Sorrentino, The Changing Family in International Perspective
11. Fertility rates in industrialized countries are declining
12. More aging population
13. Marriage rate in US is comparatively high
14. US has lower rate of co-habitation
15. Divorce rates are going up in most industrialized nations; liberalization of divorce has caused more divorces to occur
16. Idea of multi-generational families is diminishing
17. married couple households are declining and single parent families are increasing
18.
Should society regulate marriage? And if so, why?
It stems into so many different areas as far as rights and responsibilities
To what extent, how much and in what way?
What is the purpose of marriage?
19. Procreation
20. the whole ideas of families and providing for children, providing securities and rules and regulations for how this society should function
21.
Each state has it’s own set up with family laws - family law is not under federal government
A. RESTRICTIONS ON WHY MAY MARRY
1. TRADITIONAL RESTRICTIONS
A. Incest
Singh v. Singh (1990)
22. ½ uncle and niece got married and then got annulled when they found out they were related. Went to CA to get married again and wanted the annulment taken off since they were only ½ related. ½ blood is considered the same as full blooded.
23. RULE: ½ blood uncles and nieces are prohibited from marriage by law
24. Each state will differ as to their incest rules
25. In reference to the prohibited degrees, relationship by the ½ blood is a bar to marriage equally with relationship by the whole blood.
26. Issue of incest was an ecclesiastical violation and not a common law crime. There is no mention of science in any part of this decision but only of moral arguments and moral positions
27. Laws very on how close a collateral can marry - couldn’t marry within the 4th degree (cousins)
Why are we concerned with incest?
28. Medical reasons
Back v. Back (1910)
1. No blood relationship
2. Step-child case
3. Statute prohibits man’s and his wife’s daughter - but they weren’t clear on this; they were going beyond
4. RULE: A step-father and step-daughter may marry if the step-father divorces the step-daughter’s mother
5. Statute was concerned with blood relations and apparently bigamy
Levi article - eventually take the defects and they would self distruct
6. Social reasons
Margaret Mead, Anomalies in American Post-Divorce Relationships, in Divorce and After
7. Incest provisions were meant to foster strong affectionate, but not sexual, behavior between family members
8. Want to allow a father and daughter to be loving without it being taboo
9. As you keep having more and more marriages, it gets confusing
By 1991, all states and the District of Columbia prohibited marriages between parent and child, brother and sister, aunt and nephew or uncle and niece. 20 states and the District of Columbia permitted marriages between first cousins
Uniform Marriage & Divorce Act:
a) The following marriages are prohibited:
a marriage between an ancestor and a descedent, or between a brother and a sister, whether the relationship is by the half or the whole blood, or by adoption
a marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures.
Most courts have agreed with the court in Back that the absence of a contrary statutory provision, all affinity relationships cease upon termination of the marriages that produced them
B. Polygamy
1. The first wife is the legally married wife
2. Why doesn’t society let him have as many wives as he wants? Or the same for the wife?
3. What things are threatened by allowing polygamy
4.
In re State in Interest of Black 1955
29. 26 kids, 3 wives – polygamous marriage
30. He argued that it was his religious belief; can’t make it illegal for the one’s in one religion and not make it illegal for those in another religion
31. RULE: A parent may have custody of his children taken from him if he lives in a polygamous relationship
32. Gov’t can interfere with religious practices if they are against social policy
33. Trying to figure out whether to move the children out of the parent’s home
34. The children were being supported but there is a question of public policy – the court found that the home of the parents is an immoral environment for the rearing of the children. The parents have each knowingly failed and neglected to provide for said children the proper maintenance, care, training and education required by law and morals.
35. Children were neglected in a moral sense in that they were being brought up to accept immorality and crime as a way of life
➢ You can’t do too much in this area especially if the person is an upstanding person in community
➢ Not easy to get violators in the first place
➢ Once you put them in jail, who is going to take care of their children?
➢ 1991 over 50,000 polygamists lived in Rocky Mountain states
➢ There is a much larger proportion of American men and women that have more than one spouse in a lifetime than adults in most polygamous societies
➢ Although polyandry (more than one husband) is much rarer than polygamy (more than one wife), American women have as much freedom to remarry as do men
Sanderson v. Tryon 1987
5. Child custody dispute between parents formerly maintaining a polygamous relationship
6. 3 children were born during polygamous relationship. Parties separated and Sanderson took the children. Since there was no lawful marriage, no divorce was sought
7. Sanderson joined church which engaged in polygamy. She unlawfully married Bowles, no marriage license was obtained and Bowles was already in a relationship with 2 other women. Tryon abandoned practice or polygamy
8. Issue: Whether children may be taken from an otherwise fit and proper parent solely for the reason that the parent practices plural marriage?
9. RULE: The fact that a natural parent is living in polygamy is not sufficient itself to find that the parent is not fit to be awarded custody of his children
10. Law presumes that because of their practice of polygamy, Bowles and Sanderson have each knowingly failed and neglected to provide for the Sanderson/Tryon children the proper maintenance, care, training and education contemplated and required by both law and morals – home is an immoral environment
11. The law requires that we look to the best interests of the children
12. Under current custody law, moral references have been deleted from the grounds for termination of parental rights.
13. A parent’s extramarital sexual relationship alone is insufficient to justify a change in custody
14.
C. Sexual Preference and Identity
Jones v. Hallahan 1973
36. Two women deprived of marriage license
37. Women contend this deprived them of 3 basic constitutional rights: 1) the right to marry; 2) the right of association; and 3) the right to free exercise of religion
38. RULE: Parties of the same sex are not allowed to be married
39. This is generally a state by state regulation of marriage
40. Marriage is defined in as: being united to a person(s) of the opposite sex as husband or wife
41. Look to common usage - traditionally a marriage is the union between a man and a woman
42. State statutes may be revised to explicitly state that it has to be between a man and a woman
43. All statutes do not specifically prohibit marriage between persons of the same sex nor do they authorize issuance of a license to such persons
44. Common definition of marriage precludes Appellants from entering into a marriage
45. No constitutional issues are involved and there is no sanction or protection of right of marriage between persons of the same sex
46. Courts used religion to stop the two from getting married and yet denied them their right to get married based on their religious beliefs
47. Do people of the same sex want the law involved? Yes, they want the law to recognize it as the kind of relationship .... a lot of fringe benefits for being married.
48. Benefits of marriage: insurance policy, pension plans, tax implications, potential support, property regimes, other aspects in tort claims
49. Calling it a marriage gets it a certain status - hospitals restrictions on visitation, estate rights
How else can you get the rights?
Adoption - adults can adopt each other if they aren’t allowed to get married to the same sex partner
Why is society against same sex marriage?
50. Religious beliefs
51. State legislators refuse to provide benefits b/c if they sanction gay marriages that is more money being dispensed out
52.
Could there be a medium here? You don’t condemn the relationship, but you don’t believe it should it marriage
53. Some city ordinances or legislation that will recognize some benefits of same sex marriage
54. 1992 - 17 states passed some form of domestic ordinance (insurance benefits, city workers)
55. San Francisco has a Domestic Partners Registry
56. D.C. - rights to adoption, sick/parental/bereavement leave which had to be approved by House
57. See a lot of ordinances - check state
58.
Baehr v. Miike - 1996 Hawaii
59. P filed for injunctive and declaratory relief - revised statutes was unconstitutional as applied by Department of Health b/c it denied marriage licenses for marriages of same sex
60. Supreme Court looked at Hawaii’s Constitution and it talked about fundamental rights subsuing the privacy clause of the Constitution - tried to say it was rooted in tradition and collective conscious
61. Supreme Court said it wasn’t a denial of due process of fundamental right
62. RULE: Prohibition of same sex marriages is a suspect category for purposes of equal protection
63. Marriage was state conferred legal status and for the purposes of the Hawaiian constitution, it was considered a suspect category so you would have to show compelling state interest to uphold it and show the statute is narrowly construed to avoid abridging constitutional rights
64. Remanded back to First Circuit - statute is unconstitutional
65. Can’t deny on basis of sex
66. Since this is a suspect category, the state must show compelling interest as we look at this through strict scrutiny
67. State failed to meet their interest
68. Where do you go from this point? What are other states doing at this time? More states interested in subject area and were getting various states saying that their Constitution would find a problem with the wording and would have to make some compromise for same sex marriages
69. Government’s Answer: The Defense of Marriage Act
15. Defines marriage as a union between man and woman and that states don’t have to recognize same sex marriages from other states, but they would have to recognize it anyway due to Article IV, Full Faith and Credit
Alaska case - recognition of one’s choice for life partner is fundamental right but in November 1998 Alaska they revised their Constitution definition of marriage as a marriage is between man and woman
State v. Baker 1999
70. Vermont Marriage Statute - union between one man and one woman
71. Supreme Court of Vermont - could the state exclude same sex couples from protections that they gave opposite sex couples?
72. Common Benefits Clause in Constitution - Court concluded that state didn’t have to call it marriage but they are required to extend to same sex couples some of the benefits that flow from marriage
73. Do they say what those benefits are?
74.
If they aren’t going to change their Constitution, then what are their options?
16. Stone wall it; wait and see if a benefit is going to be litigated against and see if it is one of the benefits that should be allowed for same sex marriage benefit
17. Go ahead and give the benefits - it’s the same of marriage or you could say we still don’t want to call it marriage (probably get more votes for giving benefits without calling it marriage)
18.
Government gave purposes for why they didn’t want to call it marriage:
75. Furthering the link between procreation and child rearing
76. But you don’t always need a procreation to have a marriage or a marriage to procreate
77. State felt there were no good role models for child rearing
78. May encourage marriages or attempts at these unions just to get benefits
79. What does this do to marriage? It might marginalize marriage and make it a less important institution
Court says you have to give them the same benefits under the Vermont Constitution
Give them the benefits and protections (Civil Union Statute) - a certificate of civil union
80. Vermont - harder to get out of Civil Union - at least 6 month wait
81. Of the first 3500 couples, 600 were residents of VT
82. What if union doesn’t make it and they want to terminate it - they must become residents of VT to terminate it
83.
Problem with defining what a man and a woman is
M.T. v. J.T. (1976)
84. MT born a man and had a sex change
85. MT and JT married and divorced and MT wanted alimony
86. JT contends the marriage was invalid b/c MT was a man
87. Issue: Is MT a woman or man?
88. RULE: A marriage to a post operative transsexual is a valid marriage
89. MT was a woman at marriage, don’t focus on what sex they were at birth
90. They had sexual relations and JT wasn’t deceived about MT sexuality; JT paid for the surgery
91. Would emotional sexism be enough? No, court was looking closely at the physical aspects (function sexually - interesting this became a question in this case because they would not have looked at this in a heterosexual relationship)
92.
19. Some jurisdictions have looked to sexuality at birth
20. Some jurisdictions allow you to change the sex on your birth certificate if you have a sex change operation
21.
2. CONSTITUTIONAL QUESTIONS MARRIAGE RESTRICTIONS
Loving v. Virginia (1967)
o In 1958, two Virginia residents, Loving, a white man, and Jeter, a black woman, married in the District of Columbia to evade Virginia’s ban on marriages between white persons and those of any other race
o They returned to VA, where they were found guilty of violating VA’s ban on interracial marriages and each was sentenced to a year in prison
o The sentence was suspended for 25 years on condition they leave VA and not return for that period of time
o The Lovings challenged the constitutionality of the VA statute on due process and equal protection grounds
o RULE: The freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state
o Equal protection demands that racial classifications, particularly in criminal statutes, be subjected to the strictest scrutiny
o To be upheld, it must be shown to be necessary to the accomplishment of some permissible state objective, independent of racial discrimination, which is sought to be eliminated by the 14th Amendment
o VA only bans marriages b/t whites and others
o Clearly the state intends only to protect white supremacy
o While marriage is left to the states under the 10th Amendment, their powers to regulate marriage are not unlimited notwithstanding the 14th Amendment
o The law deprives the Lovings of due process, as the freedom to marry is one of the vital personal rights essential to the orderly pursuit of happiness by free men
o Freedom of choice of marriage cannot be limited by invidious racial discrimination
o The freedom to marry a person of another race resides with the individual and cannot be infringed by the state
Zablocki v. Redhail (1978)
93. Redhail was the father of an illegitimate child and was ordered to pay monthly child support payments
94. He applied to Zablocki, the county clerk, for a marriage license
95. He was refused on the basis of a WI statute prohibiting a person with a child support obligation from marrying without a prior court order based on the payments being current and the unlikelihood of the child becoming a public charge
96. Redhail claimed statute denied equal protection and due process of law
97. Doesn’t say it’s a fundamental right - right of fundamental importance
98. RULE: A state statute denying a fundamental right to marry must be supported by important state interests and be closely tailored to effectuate such interests in order to be constitutional
99. What kind of scrutiny? Strict
100. He feels his right to marry has been infringed upon by the state
101. For the state to uphold the law, it has to show that it has got strong interests and the law is tailored to meet those interests
102. A state statute must not “interfere directly and substantially with one’s right to marry”
103. This isn’t going to make him pay child support
104. Just because you don’t get marriage license doesn’t mean you are going to take over fiscal responsibility
105. Court finds this unconstitutional
What about age restrictions?
It is only temporary and has a better chance of holding up in court
Do you have rights when you are incarcerated?
Turner v. Safley (1987)
106. Missouri Division of Corrections promulgated a regulation which allowed prison inmates to marry only under compelling reasons, with the State’s approval
107. Such approval was given only where pregnancy or the danger of a child being born illegitimately arose
108. Safley sued, contending the regulation infringed upon his constitutional right to marry
109. Turner appealed the trial court’s ruling that the regulation was invalid, contending no such constitutional right existed in the prison context
110. RULE: There is a constitutionally protected marriage relationship in the prison context
111. The constitutional right to marriage is not removed by incarceration
112. It serves both a personal need and in some respects fulfills an inmate’s religious needs
113. While the regulation does meet certain security needs, its scope is much too wide and presents too great an inhibition on the right to marriage
114. As a result, the regulation is invalid
115.
In Doe v. Coughlin, a New York state prisoner who had participated in a conjugal visitation program with his W was denied the right to continue after he was diagnosed with AIDS. Court upheld the decision on the ground that Turner did not establish a right to conjugal relations for prisoners
Keeney v. Heath (1995)
116. Woman prison guard and prisoner became romantically involved. Prisoner was transferred.
117. P sued prison commander and county sheriff under Civil Rights claiming that forcing her to choose between her job and marriage to the man of her choice infringed her right to marry
118. Give up the man or give up the job
119. RULE: A jail system has a right to place light or moderate burdens on the ability of guards and prison inmates to marry
120. Judges should be cautious about disparaging disciplinary and security concerns expressed by the correctional authorities
121. This rule does not prohibit marriage but only made it more costly from the standpoint that P would have to give up her position and seek employment elsewhere
122. Indirect infringement - she could marry other people and keep her job
In re Walker (1990)
123. Restriction on marriage used in bankruptcy court
124. Debtor is incapable of making current payments and he wants to modify his payment plan
125. RULE: A Chapter 13 plan modification is permitted if the debtor voluntarily changes his marital status
126. Marriage is one of the basic rights of man. The obligation of financial support as it flows from the decision, albeit perhaps untimely, to marry or procreate, is not intended to be superceded by the creditor’s rights under the Code
Moe v. Dinkins (1981)
127. Age restriction different for male and female
128. She is 15 and he is 18; have a baby and are living together in a family home.
129. If you have a child that wants to marry earlier than age limits, you can do it with court or parental approval
130. Her mother won’t give permission
131. They are coming in on constitutional argument - arguing due process but they are bringing class action
132. Is age something that should be looked at with strict scrutiny? No, they are going with rational basis (pretty much guess you are going to have the statute upheld)
133. Moe wanted judicial approval
134. RULE: A law that regulates a minor’s right to marry, should not be interpreted under strict scrutiny
135. The constitutional rights of children cannot be equated with those of adults – they have an inability to make critical decisions in an informed and mature manner, and the importance of the parental role in child rearing
136. The state possesses paternalistic power to protect and promote the welfare of children who lack the capacity to act in their own best interests
137. Top thing that judge looks at is a pregnancy
138. Until children become a certain age, the parents will work in the best interest
139. Since the statute is upheld, it is restricting her right to marry - but only temporary
140. Subsequent marriage of parents would legitimate the child
141.
➢ At common law, children were considered capable of consenting to marriage at age 7
➢ By 1997, all but 2 states selected 18 as the minimum age at which individuals can marry without parental or judicial consent
➢ All states require the consent of a parent or legal guardian for the marriage of a younger person
➢ Divorce rate for teenage marriages is higher than for other marriages
➢ In 1970’s, most teenagers giving birth were married
➢ In 1990’s, most teenagers giving birth are unmarried
OTHER KINDS OF RESTRICTIONS
142. Mental incapacity remains a widely accepted restriction on who may marry
143. 40 states and D.C. prohibit marriage of mentally disabled
144. Private restraints on marriage in will or contracts have been made illegal in some states; partial restraints are generally permitted as long as they are not “unreasonable”
145. 1997 - 26 states and DC abolished the action of breach of promise to marry and 2 others had sharply limited its use - if you do have a breach of promise you are usually asking for compensation for investment and gifts
146. To get married you must obtain a license and a majority of the states have a 3 day waiting period
147. Marriages performed on the high seas have been recognized, but only if the law of the state governing the marriage recognizes common law marriages
148. Proxy Marrying - send someone to stand in your place at the wedding ceremony; Louisiana does not allow proxy marriage
149.
Heiman v. Parrish (1997)
22. P purchased an engagement ring in contemplation of marriage and gave ring to Δ
23. P ended relationship
24. RULE: An engagement ring is a gift given and conditioned upon the wedding actually occurring
25. Fault does not matter, once the engagement is broken the ring should be returned
What do we constitute as fault?
Infidelity, cruel treatment
Alienation of Affection: wife blames another woman for taking her man away; there are some states that allow for this
Mandatory waiting period for marriages as a contemplative time (usually 3 days); blood tests were meant to avoid possibility of diseases; states began passing laws that applicants had to take HIV test (Illinois has thus repealed their HIV testing)
Covenant Marriage: has counseling process brought into it; it has been too early to see if it works
26. Too many marriages were breaking down b/c marriage is too easy to get out of - set up system where people have to counsel before and if they want to get out of marriage and it will take them longer to get a divorce.
27. You can opt for covenant marriage - very few have opt for it
28. Opt to have regular marriage a covenant marriage
B. RESTRICTIONS ON THE PROCEDURE FOR MARRYING
Rappaport v. Katz (1974)
o Dress guidelines for marriage by city clerk. P claimed process deprived the of due process
o RULE: The state’s regulation of dress during marriage is not a federal issue
o The forms and the degree of decorum at weddings in the city clerk’s office do not sufficiently justify provoking a federal-state conflict
o Uniform Marriage and Divorce Act does not require documentary evidence of eligibility to marry
o Captain of ship has no authority to marry a couple. Marriages performed on the high seas have been recognized, but only if the law of the state governing the marriage recognizes common law marriages
C. STATE OF MIND RESTRICTIONS
Lester v. Lester (1949)
o Marriage was entered into with documents that recited there was no marriage
o H caused W to sign 2 documents prepared in anticipation by himself that the marriage was entered into by coercion and threat
o RULE: A party may not by their own agreement dissolve a marriage
o A marriage procured in consequence of coercion or fraud will be regarded ab initio as if the marriage had not been entered into at all
o Duress and other causes of action to void a marriage on the ground that the partners lacked either the capacity or the intent to contract are rarely relied on now that it has become easier to obtain a divorce in most jurisdictions
o Insanity had been the most widely recognized basis for holding that one of the partners did not have the capacity to consent to marriage
Johnston v. Johnston (1993)
o 20 month marriage and Husband had a severe drinking problem
o W claimed that her consent was fraudulently obtained but court stated she didn’t present sufficient grounds for annulment
o RULE: Concealment of incontinence, temper, idleness, extravagance, coldness of fortune cannot be the basis for annulment
o Must be a showing of fraud to void marriage contract
o Marriage Fraud Amendments (1986): any immigrant seeking permanent residence on the basis of marriage to an American citizen was required to remain married for 2 years on a conditional visa before applying for permanent residency – relaxed by the Immigration Act of 1990 which allows an alien spouse to apply for permanent residency before 2 years after the marriage date if it can be shown that the marriage was entered into in good faith and that the alien spouse was “battered by or subject to extreme cruelty perpetuated by his/her spouse”
D. COMMON LAW MARRIAGE
In Re Garges (1977)
o Garges lived with Moyer for 18 years before his 1st wife divorced him
o Proclaimed they were married, wore rings, used same last name and took life insurance policies out on each other
o Cohabitation of a man and woman, both of whom are capable of contracting marriage, and a reputation as H & W in their community together raise a presumption that the parties have contracted marriage
o RULE: A marriage contract does not require any specific forms of words
Estate of Schenk (1997)
o Issue of whether or not there was a common law marriage
o Decedent dated Barnes for 2 ½ years and then moved in with her. They bought a car, but decedent still owned his home and maintained a post office box
o They introduced each other as H and W but were not paying federal or state taxes as a married couple
o Barnes stated she was sole beneficiary to decedent’s life insurance policy
o RULE: In order to prove a common law marriage there must be clear and convincing evidence that the parties had a present intent and agreement to be married, that they continuously cohabitated, and that they made general and substantial public declarations that they were H and W
o Barnes failed to meet her burden of proof
11 states and D.C. recognize common law marriage
Three situations should be considered in evaluating common law marriage:
1. instances in which both parties believed in good faith they were formally married, but in fact they were not
2. instances in which one party believed in good faith that he or she was formally married
3. instances in which both knew they were not formally married, but believed they nonetheless legally wed
Fault: the requirement that one party, and only one party, egregiously violate the canons of marriage – served to identify those cases in which one party deserved to be released from the obligations of a relationship that had effectively ceased to exist
Traditional View of Marriage: Becker and Cohen (writers)
o Wife at home taking care of the house and children
o Husband was out making the money
o Favors a particular role taking – men and women should continue to perform different roles within marriage
o Gender differences make women more economically vulnerable to divorce than men
o Relating to the contract approach – if one breaches the understanding you would have some relief for that party - protects the expectation interest of the non-breaching party in order to encourage specialization within the family and to deter breaches of marital obligations
o Financial settlements in favor of non-breaching party
o Prefers a specialization of roles
o When you look at your statutes to analyze how they pay alimony see if they fall within traditional approach
Liberal Feminist View
o Herma Hill Kay views
o Opposes traditionalist views – concerned about equality rather than efficiency
o Opposes the reintroduction of fault in any form
o Thinks we shouldn’t reward women for staying home
o Women are never going to be equal as long as they make decisions economically disabling
o When you think of the gender roles, she would discourage it
o Don’t leave to economic marginalization – only way to have children is to have a job, man, daycare and a system where you can work it to go with it
o Need equal opportunity for equal pay – is that opportunity there today? Getting there, but not there yet
o What did she say about paying alimony for fault? There is some link b/t taking care of your kids and a financially economic choice – she says you wouldn’t go by contract based awards b/c even though it might help an individual family, it would not perpetuate the system
o Give them (women) less financial support b/c they are going to get dependent on it
o Want men more involved in their kids and more women involved in their careers
Cultural Feminist
o Would not want to go the whole route with the top two classifications
o Gilligan and Wiseman
o Think we need new model
o Unwilling to encourage women to value children less or to pay a penalty for refusing to do so
o Basic idea is to protect the child – women are going to choose to stay home with the children anyway other than the man compromising their work opportunity
o Encouraging women’s economic independence but not penalizing them for their devotion to children
o When one spouse winds up with benefit at another’s expense, you should have some compensation but there is a problem with deciding how to divide it up
o Each ex-spouse would be entitled to a equal combination of income for a certain number of years BUT if you do this the liberal feminist said you are just making it longer to get equality
o Opportunities are more open for women today than they were years ago
o Usually women are more willing than men are more likely to sacrifice their own being to have children, therefore, men are able to have children at a lower price
o Liberal feminist strategy is aimed at changing the preferences
o Cultural feminist said we want to get there but we can’t get their right away
o Traditionalist said we shouldn’t have messed with it in the first place
“Mommy Track”: some firms allow two different routes for women concerning partnership. One is that they will work a lot and head towards partnership and the other is that they may take time off and go to games, but never become partner. Some women will sacrifice their partnership to have children
o In the 1960’s women that lived alone or with roommates increased by 109%
o Trends to later marriage are fit into a lot of this
o 1969-1973 women in law schools – increased by 10% and it keeps on increasing
o Most dramatic social change – number of mothers in the labor force
o Youngest child was school age worked full time
o Sharpest increase of women working is married women with children
o March 1988 – 33% families with children under 18 had mom at home and dad at the office
o Earning rates for women – 1990 women who earned 70% of every dollar earned by men which were similar jobs
o Female college grad $25,000 in 1990 and men who had only completed high school were $27,000
o Families headed by women in 1996 was 54%
o Women maintain the head of household in 78% of black families, 47% Hispanic and 66% poor white non-hispanic families
1. THE CHANGING STATUS OF WOMEN
A. ECONOMIC AND SOCIAL CHANGES
Dunn v. Palermo (1975)
o Woman attorney in TN who got married but wished to keep her maiden name
o Register law would not let her keep her married name
o RULE: A married woman need not take her husband’s surname
o There is no TN statute that says she has to take her husband’s name
o Supreme Court has not recognized any constitutional right to retention of a woman’s original surname
o Many states have incorporated the right to resume one’s maiden name in their divorce statutes
o Consistency is important
o Name thing becomes the issue but not big enough to have constitutional protection
B. CONSTITUTIONAL LIMITS ON GENDER DISCRIMINATION
Bradwell v. Illinois (1873)
o P was a woman who sought admission to the bar but was denied because she was a woman
o RULE: Women may not be admitted to the bar
o The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life
o Paramount destiny and mission of woman are to fulfill the noble and benign office of wife and mother
Orr v. Orr (1979)
o Many states had H liable for alimony to W, but not vice versa b/c men were traditionally the bread winner
o Happened even when W was at fault and even if H needed it
o RULE: A gender based classification for alimony payments is not proper under Equal Protection
o Assisting needy spouses is a legitimate and important government objective but statute does not achieve this goal by only allowing women to be considered with respect to alimony
o Supreme Court held unconstitutional AL alimony statute because the basis of sex
o 1. assumed the W would always be in need after the divorce
o 2. if purpose is to provide for needy spouse, this didn’t include H
o What rationale would they use to set up a rule like this?
o If 80%-90% of people fall into this type of category – save money
o Even to decide if W needed alimony, there would be costs of litigation
o Making up for past grievances – historically it was to compensate for past discrimination
o Let off the hook an independent financially well off women
o Found unconstitutional, remanded to figure out if he should be paying
Past Discrimination: upheld property tax exemption to widows as seen in Kahn v. Shevin
During the time of Orr, women bringing challenges (ERA)
Michael M. v. Sonoma County (1981)
o Statutory rape law – only specific towards men
o Minor guy had intercourse
o RULE: State can make it illegal for a male to have sex with an underage female without also making females liable for the same act
o Intermediate scrutiny in Supreme Court
o Classifications based on gender must have fair and substantial relationship to legitimate state ends
o Since pregnancy affects the female far more than the male, it is legitimate for state to impose extra sanctions on males to even up the punishment
US v. Virginia (1996)
o VMI – public military school for men only
o Only 15% ended up in military
o RULE: Where a college is financially supported by a state and offers a unique educational opportunity, it violates Equal Protection by excluding all women even if they are capable of all required activities. A remedial plan is inadequate if it provides a program that is for women only, and has the same mission but distinct methods of education, relative to the men – only college
o Had to let women in
C. TITLE VII LIMITS ON GENDER DISCRIMINATION
Hopkins v. Price Waterhouse (1990)
o P denied partnership because she was a woman
o Action under Title VII – Sex Discrimination
o Partners made comments about her sexuality, she was too masculine
o Told to be more feminine
o Ran into conflict with some partners
o RULE: Under Title VII, a court may order partnership status as one of its remedies to sex based discrimination
o Court decided they had to promote her
Rise in working women and conditions as far as salary and conditions
Burlington Industries, Inc. v. Ellerth (1998)
o P worked as salesperson for Δ during her employment she was subject to constant sexual harassment by her supervisor
o Quit her job and 3 weeks later, she sent a letter stating she quit because of supervisor’s behavior, but during her employment she didn’t inform anyone of the behavior
o P got right to sue letter from EEOC
o Comments made by supervisor did not say anything that directly related to her promotion or salary – once you have quid pro quo to have vicarious liability from employer – a lot more potential of recovering more money from Burlington than supervisor
o RULE: A quid pro quo claim of sexual harassment can be submitted when the victim did not submit to the harassment and has suffered no tangible effects of employment such as compensation, terms, conditions or privileges of employment
o This is a hostile work environment, not quid pro quo; still could have violation of Title VII – must show they are severe and pervasive
o Vicarious Liability – looking to see if action furthered the purpose of the employer. General rule – sexual harassment by supervisor is not in scope of employment. Must show employer posted guidelines (take proper safety measures) for sexual harassment and that employee had opportunity to see them and use them.
o Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates
A. REALLOCATION OF DUTIES WITHIN MARRIAGE
1. BY PRIVATE CONTRACT
Edwardson v. Edwardson (1990)
o Couple entered into prenuptial agreement
o Prenuptials are allowed
o RULE: Married parties may enter into an agreement in advance of marriage that stipulates the amount of maintenance to be paid one to the other in the event the marriage is dissolved
o Could you contract with each other after you get married? Some states only allow it before you get married
o Limits about what they are agreeing to and what they aren’t agreeing to – can’t contract child support, custody, or visitation; contract for property, maintenance and money stuff
o Want to be sure there is evening of the two people; be sure each of them knew what they were doing (full disclosure)
o Question of even if you make a contract only dealing with money and you knew what the other person had that the end result not be unconscionable. Some states are not as severe as this and will say unfair.
o How do we decide if something is unconscionable? Something violating public policy – things that are immoral; this is somebody you are going to marry, not some random person in your life
o What if the contract is so unfair that it will leave someone destitute? States will vary on when to make the judgment – at execution of agreement or dissolution of the marriage
Simeone v. Simeone (1990)
o W signed prenuptial and did not speak with an attorney
o Given to W on the eve of the wedding
o When marriage split up she claimed there were adverse circumstances and wanted the contract void
o Agreed to maximum payment of $25,000 or $200/week when her H was neurosurgeon
o Pendente lite – pending the litigation – they are still married and owe each other support and she shouldn’t have these types of limits
o Court said that she had the opportunity to seek legal counsel, so too bad. She knew it was coming before the eve of the wedding; if contract says there is full and fair disclosure, there is a presumption that it is
Contract between Doctor and Housewife
She is denied to work after he gets out of school
By 1998 25 states and DC have adopted the Uniform Premarital Agreement Act
o Uses the standard that the contracts are invalid if they unconscionable when they are made
C. BY PUBLIC POLICY
1. RECOGNITION OF THE WORKING WIFE
Biggest impact since WWII is the number of working mothers and who have remained there
1989 – majority of married women with husbands present in the home worked and the numbers keep going up
McCourtney v. Imprimis Technology, Inc. (1991)
o McCourtney was accounts payable clerk at a business for 10 years and had a sick child
o Baby’s father unable to assist
o Suspended pending termination and was fired for excessive absences
o Filing suit for Unemployment Compensation – to get unemployment compensation she has to show she couldn’t find childcare for her sick child
o Board heard that she had no control over misses b/c of her child’s illness
o When she was fired, she was fired for misconduct
o RULE: The inability of a working mother to find child care for her sick newborn is not misconduct for which she can be denied unemployment compensation
o To show misconduct you need willful or wanton disregard for employer’s interest
o Employer has the burden of proving the willful conduct
o Prior to dismissal she had limited options; H suffered work related back injury and was unable to lift or care for a baby; daycare for sick child was more than $100/day
o Got unemployment b/c her circumstances were beyond her control
o This is a reluctant cost of doing business
1987 asked married couples who did the main shopping for the household – wife; only 18% of men did the shopping and 90% of women did the cooking
Employed wives had lower percentage of cooking (76%)
How has family changed in terms of technologies?
o Improved productivity but not the time that is spent
o We have cleaner houses but the time spent in doing it is the same, if not more
o Cleaner clothes and sheets, but you have more time doing it
o Time has not necessarily been reduced; we find other things that need to be done
o 1925 – 5.8 hrs. per week of washing
o 1964 – 6.2 hrs. per week
o Same study looked at new technologies in 1925 that actually were supposed to make life easier, but have created more work: AUTOMOBILE
o The thing that cut down on time was modern medicine
FAMILY LEAVE POLICY
o 1st law that Clinton signed in his administration
o Federal law – 1993 – viewed by some as a real innovative thing and a step forward if you compare it with many other countries it is very modest
o Not one that covers all employees
o In order to be covered the employers must have 50 or more employees
o Criteria for being eligible; get up to 12 months leave to care for a family member
o What does it give you? Job security, time off, does not pay you during this period of time
NEPOTISM
Favoring somebody because of a family relationship
If you make rules in this area is it going to effect one member of the household more drastically
Montgomery v. Carr (1996)
o Married teachers who work for the same public school district
o Antinepotism policy caused W to transfer to another school, causing a 2 hour commute
o Policy prevented married couples from working together as teachers on the same campus
o Same policy doesn’t apply to couples who are merely living together
o Transfer caused psychological problems for W and sued Δ alleging policy violated 1st Amendment associational rights to marry and W’s 5th Amendment property rights
o RULE: IF a policy of another employer is not a direct and substantial interference with the right of marriage it must only pass rational scrutiny test
o Policy is not a direct and substantial infringement upon right of marriage
o Under rational basis test, Δ is not required to state a purpose for its policy if the reviewing court may glean that purpose from the record
o Rationale is that this policy avoids friction that may develop between married couples
In re Galkin (1976)
o New Jersey has a Supreme Court rule that barred a judge’s spouse from running for political office
o The SCNJ upheld its policy and P, wife of Judge Galkin, requested a formal reconsideration of that opinion
o RULE: A Supreme Court of a State may not regulate and prohibit certain activities by the spouse’ of its judges
Jones v. Jones (1988)
o P retained Zimmerman to represent her in a divorce against Δ. Δ retained Bond to represent him. Zimmerman and Bond were H and W
o RULE: There is no per se rule of disqualification rule between married attorneys
o This is terrible law
o A higher standard is required for the legal profession and as such marrieds, parents, children, sibling or other close relatives should not be permitted to represent opposing clients and those carrying on intimate personal relationships
BASIC DEFINITION OF FAMILY
o What is a family and what purpose does it serve?
o What are we trying to promote? Create a nurturing environment for children; protect, encourage and promote and entity
o Are there other entities other than H, W and 2 kids that provide the same results that don’t fit in to the traditional family mode? This is where we get into conflicts
o Can non-traditional households still provide some of the end results for society that we look to traditional households to provide. Marvin v. Marvin
o Can unmarried co-habitants can contract with one another and must they be in writing
CONSTITUTIONAL PROTECTION FOR NONTRADITIONAL LIFE STYLES
WHAT IS A FAMILY AND WHAT DOES IT SERVE?
Look at new definition of families to protect the new relationship
Family: relationship of love and care where there is some assumption of responsibility for each other
Village of Belle Terre v. Boraas (1974) – GET RULE FOR THIS CASE
• Belle Terre is village of 220 homes inhabited by 700 people
• Total land area is less than one square mile and has restricted land use to one-family dwellings excluding lodging houses, boarding houses, fraternity houses, or multiple dwelling houses
• 6 students were living together in one house
• There was a zoning ordinance: to keep residential areas free from disturbing noises, increased traffic, hazard of moving and parked automobiles, depriving children of privilege of quiet and open spaces for play
• Court found that it is not aimed at transients, it involves no procedural disparity inflicted on some but not on others, it involves no fundamental right guaranteed by the Constitution.
• There is no fundamental right involved here, police power allows it – under police power you have a lot of leeway to support family values
• Marshall dissent: this burdens the right of association and rights of privacy (4th and 14th Amendments). Talks about equal protection and would have gone into much more scrutiny
ACCESS TO THE DISPUTE-RESOLVING POWERS OF THE JUDICIARY
Question remains whether access to courts should be denied to those who seek to have their private agreements enforced
Marvin v. Marvin (1976)
• Lived together for 7 years without marrying and all property was taken in in Δ name
• P sued to enforce a K under which she was entitled to ½ property and support payments
• Oral agreement that the parties would combine their efforts and earning and would share equally any and all property accumulated; agreed to hold themselves out to the general public as H and W, and P would further render her services as a companion, homemaker, housekeeper, and cook to Δ
• P agreed to give up her career as entertainer and singer to devote her full time to Δ and Δ agreed to provide for all of P’s financial support and needs for the rest of her life
• Δ theory: K is of immoral character that enforcement would violate public policy
• RULE: The fact that a man and woman live together without marriage, and engage in sexual relationship, does not in itself validate agreements between them relating to their earnings, property, or expenses. Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a nonmarital relationship when they entered into it.
• Agreements between nonmarital partners fail only to the extent that they rest upon consideration of meretricious sexual services
• Family Law Act – property accumulated by nonmartial partners in an actual family relationship should be divided equally
• Under Marvin, support agreements between cohabitants are enforceable
• Byrne v. Laura – P sued the estate of the man with whom she had cohabited. Administratix contended that the alleged Marvin agreement between the P and the deceased man was void for uncertainty and thus was unenforceable. Relying primarily on the abundant testimony of the contrary of the P and of neighbors sympathetic to the P, the court disagreed
Why would law make restrictions upon co-habitation of unmarried couples?
• Protecting institute of marriage
o They are not in common law marriage b/c they never held themselves out to be married
o Would they have fit it under putative law system? No
o She says she has a contract – oral agreement that while they lived together they would share everything; she gave up her career
o The PALIMONY case (was your “pal” getting their end)
o If they were not having any kind of sexual relationship, could they have contracted to make this deal? Yes, but would they have contracted to make this deal.
o Someone is getting punished for the sake of society
o Remanded it and sent it back to see what the sole reason of the contract was; gave her $104,000 for economic rehabilitation – give her a chance to get back on her feet
o What other theories could you have come in on? Unjust Enrichment, Implied Contract, written would have been the best, partnership, joint venture, quantum meruit
o We will not allow any contract where sex is the basis part of any agreement
o Can married people contract? Financial stuff, make donations and make certain deals between them; still can’t make deals about sex
o By not being married, they are not going to get recognition of married couple – succession rights
o Courts opening more to these kinds of relationships and giving more benefits to them
Danielson v. Board of Higher Education (1972)
• Male teacher challenges constitutionality of maternity leave provision
• He tried to make every effort to obtain parental leave of absence so his W could work after the baby was born
• Claims that his right to equal protection of the laws has been violated by the Δ’s refusal to extend to him the same child-care leave privilege which they extend to women solely because he is a man
• RULE: IF maternity leave is given for women to care for their newborn children the same leave must be afforded to men
• Δ are effectively denying men the right to play a full and equal role in their families
• Where the state provides that different treatment be accorded to persons similarly situated, such a classification is subject to scrutiny under the equal protection clause
➢ Employer may look at to what would be more beneficial for his business in deciding whether to hire a man with children and a woman with children
➢ Law will not let you stereotype but will let you look at realities – it is hard to separate the two
S.M. Miller, The Making of a Confused Middle Class Husband
• H shared in responsibilities of baby rearing and fell behind in work and sleep
• Wants his time spent on more rewarding things
RECOGNITION OF THE UNMARRIED FATHER
Stanley v. Illinois (1972)
• Joan and Peter lived together for 18 years and had 3 children. When she died, Peter lost the children because under Illinois law, the children of unwed fathers became wards of the state upon the death of the mother
• Stanley presses equal protection
• Procedure by presumption is always cheaper and easier than individualized determination
• Who is discriminated against here? The unmarried father
• RULE: Unwed fathers cannot be presumed unfit to raise their children
• All IL parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. Denying such a hearing to Stanley and those like him while granting it to other IL parents is inescapably contrary to the Equal Protection Clause
• Intermediate scrutiny so state is going to have to show that they have a strong state interest – welfare of the children
• Idea here that he may not be fit because he didn’t marry her – but in same instance, if you had unmarried mother it would not be the same assumption
• Asking for equal protection and due process to show he is a good father
• Focus is on the child and the right of the parent – he fought this from his constitutional view and not from the child’s point of view
• Whose rights are they worried about? His due process rights
Lehr v. Robertson (1983)
• Child born out of wedlock
• Her mother married Robertson 8 months later. When the child was 2 years old, Robertson filed a petition of adoption. Lehr, father of the child, opposed the order b/c he as the putative father and was not given advance notice of the adoption proceeding. State maintained a putative register for fathers but Lehr was not entered onto the registry. NY law also has provision for notice of several other classes of fathers but D was not a member of any of those classes. D had lived with the mother prior to birth and visited her in the hospital during the birth but his name does not appear on the birth certificate. One month after the adoption, D filed a visitation and paternity petition.
• Issue: Does the mere existence of a biological connection to a child create paternal rights that must be protected under due process?
• RULE: The mere existence of a biological connection to a child does not create paternal rights that must be protected under due process
• The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he fails to do so, the Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie.
• D has never had any significant custodial, personal, or financial relationship with Jessica and he did not seek to establish a legal tie until after she was 2 years old
• General rule is that you need consent from natural parent
• When don’t we need consent of the other parent
• In comparison to Stanley, this case tells us that we don’t have to get consent – Stanley was there and was involved and Lehr was not
• Father has to support, show he is around in order to get the child – father has opportunity to demonstrate she is part of this
• The mother only has to give birth but if she messes up, it is going to come down hard on her
Michael H. v. Gerald D. (1989)
• P fathered a child with Δ’s wife while she was married to Δ
• After the baby was born, the W allowed P to hold the baby out in public as his own. The W and baby briefly resided with the P. The W prepared a stipulation that the P was her child’s natural father but failed to legalize the document.
• When W reconciled with Δ, she denied P visitation rights to the child
• P filed suit to establish child’s paternity. Δ was granted summary judgment based on a California law that presumes paternity in favor of the H whenever a W is impregnanted by another man if the H is not sterile and the W resides with the H
• This law may be only set aside by contrary blood test produced upon motion made by the H or W within 2 years of the child’s birth date
• Issue: Does a law that affords no procedure to establish paternity violate the Due Process Clause? Does a parent-child relationship produce a liberty interest that warrants protection under the Due Process Clause? Does a child have a liberty interest in maintaining a relationship with one parent relative that warrants Due Process Protection?
• RULE: Procedural Due Process requires a fair procedural process before a government can deprive an individual of a liberty or property interest recognized as fundamental by society tradition. If an infringement of a fundamental right is evidenced, the law must be necessary to accomplish a compelling government interest and no less burdensome measure exists.
• The California law that blocks paternity does not undermine procedural Due Process rights b/c procedural Due Process examines the adequacy of a proceeding that was afforded to an individual
• A liberty interest is one that is also fundamental; that is, deeply imbedded in our social tradition
• And the child-relationship eveolving from an extra-marital affair does not establish a fundamental right b/c its participants do not form a recognizable family unit that was deemed important at common law which rested upon inheritance and keeping public order
• Paternity preferences and privileges of fatherhood rank higher than the P’s interests
• A child does not maintain a liberty interests in maintain a relationship with parents under the Due Process Clause
After losing in USSC, Michael H. founded Equality Nationwide for Unwed Fathers (ENUF) and lobbied to change CA law to that an unwed father could petition the courts for visitation and joint or sole custody when the mother is married to another man
Presumption: The Husband of the Mother is the Father of the Child
Kemp case - SUPPLEMENT
Father wanted to establish paternity and had a relationship with the child
All he was asking for was visitation rights
Let the guy have visitation rights because CA statute is different from LA statute
Nguyen v. INS (2001)
• American father and Vietnamese mother who were never married
• P was 6 when he came to the US and when he was 22 committed sexual assault
• INS initiated deportation proceedings
• Father asserted that §1409 was unconstitutional
• Issue: Is this statute unconstitutional? NO
• The general requirement for acquisition of citizenship by a child born outside the US and its outlying possessions and to parents who are married, one of whom is a citizen and the other of whom is an alien, is set forth in 1401(g)
• 1401(a)(4) requires one of three affirmative steps to be taken if the citizen parent is the father, but not if the citizen parent is the mother: 1) legitimation; 2) a declaration of paternity under oath by the father; 3) a court order of paternity
• 1st governmental interest – importance of assuring that a biological parent-child relationship exists – he need not be present at birth
• 2nd governmental interest – determination to ensure that the child and the citizen parents have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States
ENCROACHMENTS ON THE DOCTRINE OF FAMILY PRIVACY
THE CONSTITUTIONAL RIGHT TO PRIVACY
Griswold v. Connecticut (1965)
• Δ, the Executive Director of Planned Parenthood in Connecticut, and Dr. Buxton counseled married couples about contraceptives. They were convicted under a Connecticut law which made this an offense. They were convicted for the counseling, not the actual use of the contraceptives. The state courts upheld the conviction
• ISSUE: Does the right to privacy in a marital relationship exist in the Constitution that prevents states from making counseling about contraceptives an offense?
• RULE: Although the right to marital privacy is not explicitly stated in the Bill of Rights, it is a penumbra, formed by certain other explicit guarantees, and rights such as the right to be counseled about contraceptives are protected against any state regulation that is unnecessarily broad
• Various guarantees create penumbras, or peripheral rights, that make these specific rights more secure
• First amendment right to association, the 3rd amendment prohibition against the peacetime quartering soldiers, the 4th amendment prohibition against unreasonable searches and seizures, the 5th Amendment self-incrimination clause, and the 9th amendment reservation to the people of unenumerated rights.
• This statute cannot survive a strict scrutiny test because it invades the marriage relationship which is very important to the state
Eisenstadt v. Baird (1972)
• Δ was convicted in a bench trial for exhibiting contraceptive articles during a lecture he was giving at Boston University, and for giving a young woman a package of Emko vaginal foam at the close of his address.
• The Supreme Judicial Court set aside the conviction for exhibiting the articles but sustained the conviction for giving away the foam
• Mass. Law required that such products could only be given by a physician or a registered pharmacist to married persons
• Issue: May the state ban the distribution of contraceptives to unmarried persons?
• RULE: The state may not ban the distribution of contraceptives to unmarried persons
• If under Griswold, the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible.
Roe v. Wade (1973)
• P, a single pregnant woman, challenged the TX abortion laws.
• She sought declaratory and injunctive relief against Δ, who was a county district attorney, to prevent enforcement of these laws
• The TX statute almost completely banned abortions, making abortion a crime
• The District Court invalidated the statutes, but did not give P injunctive relief
• Issue: Does the constitutional right to privacy protect a woman’s right to choose to abort?
• RULE: The 14th Amendment’s right to privacy is broad, and encompasses a woman’s decision of whether or not to abort
• A statute regulating a fundamental right like the right to privacy is only justified by a compelling state interest
• Δ argued that the fetus is a person whose right to life is guaranteed by that amendment
• The problem is that fetus has never been defined by the Constitution; it has never been recognized in the law as a person in the whole sense
• Δ is attempting to override the right of the pregnant woman by adopting this theory
• A woman’s right to privacy is not absolute
• The state has a legitimate interest in preserving the health of the pregnant woman and in protecting the potentiality of life
• Before viability, the state’s interests are not sufficiently strong to justify preventing abortion – stage prior to the end of the first trimester
• After the end of the 1st trimester, prior to viability, the physician, in consultation with the pregnant woman, can decide that a pregnancy should be terminated without interference by the state
• After viability, the state can restrict abortions
• It can promote its interests in the potentiality of life
• It can regulate and even prohibit abortion, unless it is necessary to save the mother’s life
Planned Parenthood of Central Missouri v. Danforth
o Missouri law required the prior written consent of the spouse of a woman seeking an abortion during the first 12 weeks of pregnancy unless the abortion was certified by a licensed physician as necessary to preserve the life of the mother
o Danforth opposed the law
o RULE: the State may not require written spousal consent to an abortion during the first 12 weeks of pregnancy
o The State cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy
o The state does not have the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy
Stenberg v. Carhart
➢ Partial birth abortion: partial vaginal delivery and crush skull; this is different from any other abortion because it is graphic
➢ Nebraska statute at issue – 2000 case – life of mother – when life of mother is endangered by physical aspects,
➢ Have to have life endangerment and when it is endangered it has to be because of physical reasons
➢ Violation is against doctor
➢ Statute was unconstitutional
➢ Is crushing the skull in the vagina any different from crushing the skull in the uterus
Bowers v. Hardwick (1986)
o Hardwick, a gay man, was charged with violating a state law criminalizing sodomy by committing sodomy with another adult male in P’s bedroom. District Attorney decided not to pursue the case. P sued anyway, challenging the constitutionality of the statute as applied to consensual sodomy. P claimed that he was in future danger of arrest for violating the statute. District Court dismissed the suit, but the court of appeals reversed holding that the statute violated P’s fundamental rights because the homosexual activity was a private and intimate association beyond the reach of state regulation.
o RULE: One does not have a fundamental right to consensual homosexual sodomy under the Constitution
o The mere fact that the offense occurred in the privacy of P’s home does not make it free from regulation
o This is evidenced by other victimless and/or sex crimes
o Since the State has provided a rational basis for the statute, and the right in question is not a fundamental right, the statute is valid
o The state’s legitimate interest here is a moral objection to homosexual conduct, and states can base their laws on moral beliefs
Emphasis here on right of privacy
Governmental interest – they are trying to stop something that the public doesn’t like; public would say this is immoral
ENCROACHMENT ON THE DOCRINE OF FAMILY PRIVACY
TORT AND CRIMINAL LAW
Warren v. State (1985) – Spousal Rape
o Warren was indicted for rape and aggravated sodomy of his wife. No particulars of the situation were given by the casebook as to the facts that lead to the charges. D filed a pretrial general demurrer and motion to dismiss indictment. After a hearing was denied, D filed an interlocutory appeal
o RULE: There is no implicit marital exclusion that makes it legally impossible for a H to be guilty of raping his W
o There have been dramatic changes in woman’s rights and the statute of women and marriage
o Rape and aggravated sodomy are acts of violence that are accompanied with physical and mental abuse and often leave the victim with physical and psychological damage that is almost always long lasting
o There is no such marital exemption
State v. Kelly (1984)
o Kelly stabbed her H with a pair of scissors. He died and she was indicted for murder. D asserted she stabbed H in self defense and then called a witness to testify about battered-women’s syndrome. Trial court ruled expert testimony inadmissible. D testified at trial that she was the victim of repeated beatings sometimes as often as one week. The final episode culminated in D being almost choked to death in front of a crowd of people after which H came at her against and she grabbed a pair of scissors and stabbed him. D convicted of reckless manslaughter and she appealed
o RULE: Battered women’s syndrome is relevant to a valid defense to murder
o The use of force against another is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful forces by such other person on the present occasion.
o D’s state of mind is admissible to show that she honestly believed she was in imminent danger of death
Raucci v. Town of Rotterdam (1990)
o Joseph Raucci injured Ms. Raucci (P), his estranged W, and killed their 6 year old son. Rauccis entered into a separation agreement which granted custody of their two children, Pam and Chad to P.
o On May 13, 1985, P appeared at Rotterdam Police Dept. and reported that H had punched and threatened to kill her. She sought his arrest and showed evidence of the beating. Situation calmed down and a permanent mutual protective order was entered.
o P notified police department of the order and told them H was still threatening her. H even attempted to run P off the road
o As things went on, police department said they needed more evidence and told her about recording the incidents
o H arrested and set free on bail
o H appeared at W house, shot W as she was on a date; H shot and wounded the date and when he shot at W, he wounded her and killed their son
o Wife sued Police Department under 42 USC 1983 state law negligence claims
o RULE: A municipality and its police department can be held liable for injuries sustained from the creation of a special relationship with a citizen
o Jury could have reasonably found that D through promises or actions assumed an affirmative duty to act on behalf of P who was injured
o D knew that inaction would lead to harm
o There was direct contact between D and P and D even trained P
o P’s reliance on D’s affirmative undertaking was justified
1994 – Violence Against Women’s Act
Purpose was to seek support, give federal relief
Shelters, education – putting federal money behind program to provide extensive relief
Allowed for more damages and relief
Brzonkala v. Virginia Polytechnic Institute (1999)
o Christy Brzonkala (P) sued under 42 USC 13981 (Violence against Women’s Act) against Morrison and Crawford
o P was a student at VA and Morrison and Crawford were students as well as football players at the same school. P alleges that soon after she met Morrison and Crawford they pinned her down and forcibly raped her. Morrison and Crawford moved to dismiss the complaint in that it failed to state a claim and the statute itself was unconstitutional.
o RULE: Congress cannot pass a statute to punish noncommercial intrastate violence under the power to regulate commerce
o This statute clearly exceeds the scope of federal power under the commerce clause
o The power of Congress to regulate commerce does not extend to the regulation of activities that merely have some relationship with or effect upon interstate commerce
o That power only extends to those activities having a substantial relation to interstate commerce
o This statute regulates violent crime motivated by gender animus.
o This conduct is clearly not commercial and is not even economic in a meaningful sense
STATE EX REL. WILLIAMS V. MARSH
o Denise Williams (P) filed a petition for an ex parte order of protection. The trial court found that P and Edward Williams (D) were married and had one child from the relationship and that the couple had been living separately and apart for five months prior to the hearing. During this separation, D's home address was unknown, his place of employment was known, and that D made about $1,000 per month but provided no support or maintenance but for the exception of a small amount of clothing and that D on numerous occasions beat P causing her serious bodily injury. The trial court dismissed the petition as it held the Adult Abuse Act unconstitutional and unenforceable; as no bill shall contain more than one subject which shall be clearly expressed in the title and because this bill contained provisions relating to child support and custody rather than exclusively relating to adults, the trial court found it unconstitutional; and that is violates due process guarantees as it deprived a party of constitutionally protected interests without an adversary hearing.
o ISSUE: Is due process violated by a temporary taking of rights until a hearing is convened in an expeditious manner?
o RULE: Due process is not violated by a temporary taking of rights until a hearing is convened in an expeditious manner.
o The defect in the more than one subject provision is overcome by the reasonableness of the included issues to the central issue at bar. The orders pertaining to child support, custody and maintenance are all fairly related to and serve the purpose of aiding victims of domestic violence and of preventing future incidents of adult abuse. As for the due process claims; this statute passes muster as the deprivations are only temporary and the statute has provisions for immediate hearings to determine the issues presented by both parties; not later than fifteen days with nothing to suggest that such hearings could not be had sooner. This Act is necessary to secure important governmental interests by the protections of victims of abuse and the prevention of further abuse. The situation under which the Act performs its protection is one of immediate need for prompt action "when there is an immediate and present danger of abuse;" the only time under which an ex parte order may be issued. Furthermore, only a judge in his discretion may issue the ex parte order. Thus there is no private party advantage such as is found under replevy of goods. As such we must find the Act is constitutional .
• Originally church courts had jurisdiction over marriage, which left divorce unattainable
• Traditionally, the first ground for divorce: Adultery
• People began making it up
• If we allow for divorce, when should we allow for divorce?
• How long should we make states wait to grant a divorce?
• What does high divorce rate say about society?
Median marriage lasts 7 years
Most divorces occur within 2 years
Marriage and re—marriage are much alive today – serial polygamy
1991 – 11,000 attorneys concentrating on divorce as opposed to 700 in 1980
In the early days, you rarely married for romantic interest
Most litigated aspects – property distribution and child custody
Getting out of marriage is relatively easy
What are grounds for absolute divorce? Look to see if there are fault grounds or no-fault grounds.
FAULT BASED GROUNDS FOR DIVORCE
CRUELTY
BENSCOTER V. BENSCOTER
o The parties were married in 1946 and had four sons. At the time of this hearing, H was 39 and W was 37 and suffering from multiple sclerosis. H filed the petition of divorce based on the verbal cruelty in that W expressed her disappointment in not having a female child and blamed H for this failure and that W verbally abused him for this failure. The master recommended a divorce be granted.
o ISSUE: Is verbal cruelty emanating from ill health not constituting a course of conduct grounds for divorce?
o RULE: Verbal cruelty emanating from ill health not constituting a course of conduct is not grounds for divorce.
o The alleged misconduct was sporadic in nature and did not constitute a course of conduct that is required by the law. W was stricken with an incurable disease and has become frail in her ill health even threatening suicide on three different occasions. Ill health both explains and excuses W's conduct and the acts of a spouse resulting from ill health do not furnish a grounds for divorce as H in over 15 years of marriage did not have cause or reason to complain until recently. There is also evidence that H was involved with another woman. H did not become dissatisfied until W became ill. He cannot now discard her.
o There was no physical cruelty here
o What she was doing was cruel – emotional/psychological
o Cruelty became a “catch all” ground
o All states will have no fault statutes now but how it is set up is different
In terms of fault, why do marriages end?
Can’t live together, get tired of each other
There is fault on both parties
Should divorce be allowed because one person wants out?
Don’t let people do this in contracts without paying
Statistics by Lorio – 1962-1980 – Whether children are in the family whether parents should stay together if they don’t get along
1962 – 51% mothers disagreed
1980 – 81.7% mothers disagreed
Attitudes of children divide among gender lines
Adult children – more of the daughters disagree with the statements – 82.9%
Sons 62%
HUGHES V. HUGHES
o W filed an action against H alleging that he was cruel to her and had ordered her from the family home and threatened to do bodily harm to her. W alleged that the couple had separated but that she returned on the promise that H would correct his behavior. H failed in his promise and returned to his prior course of conduct towards W. W then separated and filed a suit for a separation from bed and board. H claimed that W's leaving the constituted abandonment. The court found H at fault and H appealed.
o ISSUE: Is cursing a wife and declaring that you do not lover her sufficient to find that W is entitled to a separation from bed and board?
o RULE: Cursing a wife and declaring that you do not lover her is sufficient to find that W is entitled to a separation from bed and board.
o The testimony of the daughter was sufficient to break the tie in testimony as presented by W and H. The daughter's testimony confirmed that of her mother. Affirmed.
o Another possible ground here – cruelty and abandonment
o Courts look at different levels of cruelty and discretion of judge will enter into this tremendously
➢ Cruelty originally was limited to bodily harm or a reasonable apprehension of bodily harm
➢ Today, however, most courts consider psychological harm sufficient to grant a divorce for cruelty or its statutory variant, indignities to the person
➢ Before the advent of no fault divorce statutes, cruelty had become the most widely used divorce ground
➢ Even when there has been physical harm, most courts have held that one episode is not enough to justify a divorce
➢ By 1985, all states offered no-fault divorce, although most retained fault grounds as well
When no fault was introduced, the judges were less expansive on what they found under cruel treatment so as not to make it so expansive
ADULTERY
ARNOULT V. ARNOULT
o Patricia (W) and Elden (H) were married in 1966 and separated in 1995. W filed a petition for divorce and H filed an answer requesting a divorce. H then amended his petition with a allegation that W was guilty of adultery. The matter came to trial and the court found that W was guilty of adultery based on the testimony of private investigators who in fact did not witness any actual sexual acts. Both W and her boyfriend testified that they never had any sex. The trial court found the circumstantial evidence sufficient to prove that W committed adultery. W appealed.
o ISSUE: May a trial court find that adultery has been committed from circumstantial evidence supplied by private investigators?
o RULE: A trial court may find that adultery has been committed from circumstantial evidence supplied by private investigators.
o The trial court found from the totality of the evidence that W committed adultery. The trial court received the evidence and listened to the denials W and her boyfriend and presentation from the investigators. It found that W committed adultery. We cannot say that the trial court's factual findings were manifestly erroneous.
o They first came in asking for the divorce under Louisiana no-fault – live apart 180 days and then come under no-fault
o Eyewitnesses who saw her and another man leave a bar together where their heads were disappearing
o They found adultery and H got the divorce based on adultery
o Came in under no-fault ground and yet comes back and gets divorce on fault-based ground
o Once they have filed no-fault, they are living apart – why can he file for adultery – until the divorce is actually given, you still have fidelity bond.
o Courts look at disposition to commit adultery and the opportunity
o Adultery has been dropping in popularity as a ground because of no-fault
o As women have become more mobile in society, you have to be more specific
o If woman involved was a married woman, they would be a little bit more inclined to find for adultery because of fatherhood determination
o Proof of adultery – circumstantial evidence, birth of child (presumption the H of the mother is the father of the child)
o If you have conviction of spouse for rape or prostitution
What about homosexual behavior? Is that adultery? Most statutes don’t reveal to this
DO statutes make any kind of distinction to this
➢ Adultery has dramatically dropped in popularity as a ground for divorce
➢ Sexual relations between two males does not constitute adultery
➢ Rights of 3rd parties in Adultery proceedings: a mother may be ordered to submit her child for blood tests to establish whether adultery occurred despite arguments that the order violated the child’s right of privacy
➢ Proof: adultery is normally proven by circumstantial evidence
DESERTION
CROSBY V. CROSBY
o W was denied a judgment for permanent alimony based on the fact that W was at fault in the divorce; W failed to live with her husband of 18 years when he changed the location of the household. W appealed.
o ISSUE: Is a law that forces a wife to live with her husband and to follow him wherever he chooses to live unconstitutional?
o RULE: A law that forces a wife to live with her husband and to follow him wherever he chooses to live is unconstitutional.
o Clearly subjecting women only to this law violates equal protection. On appeal W contends that the law is unconstitutional and that she is free from fault for the dissolution of the relationship. We agree with W on the first contention but have no reason to comment on her second. A rehearing is granted.
o Problem here: Stereotypes in alimony – the man’s duty is to support; counterpart – her duty was to follow him wherever he wanted to go
o If she didn’t go, she was at fault unless she had a particular reason as to why
o What would she be guilty of here?
o You are really talking about a desertion policy here
o Usually find elements for desertion:
o The absent person intends not to resume habitation
o They were separated – generally there would have to be a period of time
o Look to see in order to call the one that left to be at fault, you have to show that the other one didn’t want them to go
o Constructive desertion – change the locks and throw him out
➢ 25 states and the District of Columbia still recognize desertion or abandonment as grounds for divorce
➢ Constructive desertion operates in some respects like a defense
➢ Constructive desertion if proven both defeats the spouse’s cause and serves as an alternative ground for divorce
➢ Refusal to have intercourse without contraceptive constitutes constructive destruction
OTHER FAULT GROUNDS
➢ Incurable impotence
➢ Conviction of felony and/or imprisonment
➢ Habitual drunkenness
➢ Drug addiction
➢ Non-support or neglect
TRADITIONAL DEFENSES FOR DIVORCE
RECRIMINATION
RANKIN V. RANKIN
o W and H were not model of marital bliss and for the most part did not get along well with one another. They called each other names, lied about the events of their lives together and for the most part hated each other. H even accused W of attempting to kill him by running him over with their car that he escaped from by turning the ignition off. There was basically no corroborating evidence or sufficient evidence to show just who was the evil spouse in all their goings on. The lower court granted the divorce.
o ISSUE: Is the fact that married people do not get along enough to justify a divorce?
o RULE: The fact that married people do not get along is not enough to justify a divorce?
o This testimony was clear that H and W do not get along as husband and wife. This is not enough to get a divorce. Even if one spouse could be considered the principal offender there is still insufficient evidence to establish the right to divorce on the ground of indignities. The decree of the lower court is reversed.
o No winner and no loser here, they got stuck living together
o Some states use recrimination – If they were both at fault, the winner would be the one less at fault
o Lots of times people really wanted out so they would make deals that were in essence an illusion and gaining up against the court
CONNIVANCE
SARGENT V. SARGENT
o Donald (H) suspected his wife of having illicit relations with the chauffeur, Charles Simmons. H decided to investigate and instead of firing the chauffeur and warning him and his wife, he hired investigators, purposefully absented himself from the house and made sure that Simmons had ample opportunity with his wife. H filed for divorce.
o RULE: A spouse may not actually facilitate adultery.
o A man may watch his wife without warning her of his intention to do so but he may not actively facilitate or participate in the course of action leading to her downfall. H did not in fact seek to avert the problem but instead facilitated it and afforded W the opportunity which brought the desired result and as such it can only be deemed that H consented thereto. Judgment for W.
o They were both wrong
o Thought process of that he should have protected her (remember this case is in the 1920s)
CONDONATION
WILLAN V. WILLAN
o H and W were married in 1925 and had two children. Except for the war, H and W continued to live together until 1958. H complained that W throughout the marriage continually assaulted him, and used offensive and obscene language. W also frequently demanded sexual intercourse with H when he did not wish to have it and used violence on H until he agreed to perform. H complained of these circumstances, even by solicitor, but continued to live with W and even to have intercourse. H applied for a divorce. That petition was denied based on condonation. H appealed.
o ISSUE: Is the act of having intercourse with a wife conclusive evidence of condonation of cruelty?
o RULE: The act of having intercourse with a wife is conclusive evidence of condonation of cruelty.
o The act of sexual intercourse is evidence of condonation. H had intercourse with W with full knowledge of the matrimonial offence of which this complaint is based. Only if the act of intercourse was induced by W by fraud will such evidence not be considered condonation. H was free to submit or resist and even to run away. In the end, he submitted to W's wishes and did so unwillingly, but that does not mean that he did the acts involuntarily. It might be otherwise in the case of a wife; but in the case of a husband who has sexual intercourse, it can only be said of him that what he does he does on purpose and that sexual intercourse with his wife must be a voluntary act on his part.
o Old trend was sex was very determinative, but since sex is not exclusively within marriage domain, the idea that it is a link to condonation of marriage, it is less authoritative
o Exception to condonation – fraud
o In some states you have to show sex as reconciliation
LEGAL ANALYSIS: Basically if a man can perform and does have sexual intercourse it is deemed to be voluntary unless induced by fraud.
COLLUSION – make deals together to get around court system
FUCHS V. FUCHS
o W (D) and H (P) entered into an agreement by which the custody of their child was to remain with W and that if H agreed to that term W would not contest a present divorce action. The agreement was made and W advised her attorney not to contest the divorce action. The divorce was granted and H remarried but then W petitioned to reopen the case.
o ISSUE: May a party consent to the entry of a decree of divorce?
o RULE: A party may not consent to the entry of a decree of divorce.
o A threat to deprive a mother of her child would be a compelling inducement to persuade her to default in a divorce action. Even though D may be tainted by the fraud that she committed, the state has an interest in the matrimonial status of its citizens. D's right to reopen the case is not affected by the remarriage of P. The motion to set aside the default is granted.
LEGAL ANALYSIS: Apparently equity is not offended by fraud on the court. This court stated that society in general had an interest that demanded that the case be reopened.
INSANITY – in some states it is a ground and in others it is a defense
o What is insanity? Does it depend on the standard we use? What is McNaghten Rule? Inability to distinguish right and wrong – what is Durham rule? You have some kind of mental disease and insanity is a product of it.
o Other defenses – consenting, forgiveness, statute of limitations
ANONYMOUS V. ANONYMOUS
o H filed a divorce against W based on adultery. W defended the action on grounds that she was insane. Evidence was presented and the trial court gave the decree to H. W appealed.
o ISSUE: Does a party claiming insanity as an excuse for adultery have the burden of proof on that issue?
o RULE: A party claiming insanity as an excuse for adultery has the burden of proof on that issue.
o New York case law has recognized that an insane wife is incapable of abandoning her husband and has refused divorce to a husband whose wife committed adultery while suffering from demential praecox. There is a question as to what standard of insanity to use when deciding these cases from M'Naghten or Durham-Carter. But in the present we can skirt that issue because W has failed to met her burden of proof related to the presumption that she is sane. The evidence showed that while D was afflicted she was not in fact insane under any known standard. As W did not testify and the lower court only had the views of W's and H's experts to conclude this issue; as such the inconsistency in that testimony that W was driven into acts of adultery by an irrational necessity to get even with her father and H, the homosexual overtures at the hospital and the implication of W's affidavit that the acts of adultery rested with proving herself as a woman suggests that the homosexual activity and the affidavit were afterthoughts contrived by W to excuse her conduct. W has not presented by a preponderance of evidence that she was suffering from mental and emotional disorders as to make her incompetent and irresponsible for the acts of adultery charged against her. H is awarded judgment of divorce.
LEGAL ANALYSIS: Divorce court on TV used to be a great show. This case speaks for itself.
NO-FAULT DIVORCE
THE PROBLEMS OF PARTIAL REFORM
MASSAR V. MASSAR
o Jacqueline (W) and Cyril (H) were married in 1988. This was the second marriage for each. A prenuptial agreement was signed. By 1993 things had deteriorated and the parties discussed separation and eventual divorce. They signed an agreement such that H would vacate the marital home and W agreed not to seek termination of the marriage for any reason other than 18 months continuous separation. H moved out. Contrary to the agreement, W filed for divorce just six months later on grounds of extreme cruelty. H filed a motion to dismiss the complain to enforce the 18 month agreement. The agreement was upheld and the complaint was dismissed. W appealed.
o ISSUE: Is an agreement restricting the right to divorce against public policy and unenforceable?
o RULE: An agreement restricting the rights to divorce is not against public policy and unenforceable.
o This state has a strong public policy favoring enforcement of agreements. Marital agreements are essentially consensual and voluntary and as a result they are interpreted and presumed to be valid and enforceable if they are fair and equitable and not the product of fraud or unconscionability. The trial court found the language of this agreement clear, and unequivocal and that W surrendered her right to seek a no fault divorce. There was no evidence of duress or fraud or unconscionability. Even though we have adopted no fault divorce this state does not promote divorce and has always had a strong public interest in promoting marriage. As such this agreement calling for a separation of 18 months and then a divorce promotes marriage and gives each party involved time to evaluate and access their relationship together. There is no evidence on the record of any physical or mental abuse on the part of H. Affirmed.
LEGAL ANALYSIS: Marital agreements are presumed enforceable unless tainted by the standard defenses of contract law.
HANGAR V. HANGAR
o W filed a petition for absolute divorce on grounds of adultery. W also seeks custody of a 13 year old daughter, child support, and alimony and a division of jointly owned property. H answered pleading estoppel in that there can be no issue with respect to property rights since the parties by agreement in 1972 settled all matters pertaining to property rights, alimony, and residence of the minor child. H also filed a counterclaim for absolute divorce based on voluntary separation. The couple was marred in 1957 and by 1971 H became aware that W was having an adulterous relationship. H confronted W and that did no good. W persisted in her activities. The couple then worked out a separation agreement that disposed of their jointly owned property and that a substantial lump sum of money would be paid W as well as monthly payments for twelve months in lieu of claims of alimony. There was no custody provision worked out for their daughter, but she would remain with H with W having visitation rights. The separation agreement allowed the couple to live as if they were sole and unmarried. W then left for Philadelphia and lived with her paramour, a married man, until her return in 1973 and then the filing of this action. H relying on the agreement began relations with other women.
o ISSUE: May married parties agree by contract to allow each other to commit adultery?
o RULE: Married parties may not agree by contract to allow each other to commit adultery.
o The terms of the 1972 contract are clear but W's act of filing for divorce based on adultery is not without it irony based on the conduct of W in engaging in the act and then running off to live with her paramour. Even though W presents false information in her complaint that she remained just and dutiful, the necessary and sufficient elements of equitable estoppel are simply lacking for D. Couples may not contract to engage in adultery and as such reliance upon any stated agreement made between them cannot be recognized nor can the encouragement of one to another be recognized. D has admitted to adultery on two different occasions and as such W is entitled to the absolute divorce. As for the custody of the child, there is clear and convincing evidence that W has engaged in similar conduct for a long period of time. From these facts, the best interests of the child are such that she should remain in her present abode with liberal visitation being granted to W. So ordered.
LEGAL ANALYSIS: The case law required that there is a rebuttable presumption against the suitability of an adulterous parent.
FLORA V. FLORA
o No facts were given.
o ISSUE: Are the traditional divorce defenses of condonation, collusion, recrimination, and laches available in a no fault divorce jurisdiction?
o RULE: The traditional divorce defenses of condonation, collusion, recrimination, and laches are not available in a no fault divorce jurisdiction.
o These defense of are judicial origin and it is not necessary for the legislature to decree their inapplicability but they are free to do so if they desire. Petition for rehearing denied.
LEGAL ANALYSIS: These defenses are not relevant in a no fault divorce jurisdiction.
ELLAM V. ELLAM
o H (P) sought a divorce on grounds of separation. W filed a counterclaim for desertion. The parties were childless and purchased a house but the marriage was in trouble and H moved out and moved into his mother's home. The parties maintained many aspects of their relationship after the separation including sexual relations for about 10 more months. They basically lived like a married couple except that H left the home to sleep at his mother's and returned every morning to resume a normal life. H even spent weekends at the marital home doing chores, the couple accepted social invitations and W even accompanied H to an out of state convention. The issue presented was whether the conduct meant that they were living separate and apart.
o ISSUE: Does living separate and apart mean that the parties each have a different habitat and that they no longer live together in their day to day life?
o RULE: Living separate and apart means that the parties each have a different habitat and that they no longer live together in their day to day lives.
o Both parties lived in separate habitats but both parties maintained their daily routine and when H was not working or attending classes, he spent his waking hours with W. Living separate and apart cannot be found when the relationship is merely bereft of positive qualities. The act of separation requires something more than a discontinuance of sexual relations. Here the parties engaged in many activities which go into the make up of a marital relationship and as such they cannot be said to be living separate and apart.
LEGAL ANALYSIS: This case speaks for itself.
TWYMAN V. TWYMAN
o Sheila (W) and William (H) Twyman were married in 1969. W filed for a divorce in 1985 and later amended the petition to add a general claim for emotional harm without specifying whether the claim was for intentional or negligent harm. W alleged that H, intentionally and cruelly attempted to engage her in deviate sexual acts of sadomasochistic bondage. The divorce was granted and as part of the decree, W was awarded $15,000 plus interest for her claim of emotional distress. H appealed contending that interspousal tort immunity precluded the distress recovery. The court of appeals affirmed holding that W could recover for negligent infliction of emotional distress. H appealed.
o ISSUE: May a tort cause of action for intentional infliction of emotional distress be tried with a divorce action?
o RULE: A tort cause of action for intentional infliction of emotional distress may be tried with a divorce action.
o Interspousal tort immunity was abrogated ten years ago and we have refused to recognize the tort of negligent infliction of emotional distress but we do accept the tort of intentional infliction of emotional distress. We also encourage joinder of such claims with divorce whenever feasible. The court must be wary of awarding a double recovery. However, a spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. W has plead her tort cause broadly enough to include intentional conduct but cannot recover based on the findings of fact as they were made on negligent theories which we have refused to adopt. The judgment must be reversed and the case is remanded for a new trial.
LEGAL ANALYSIS: What are these people thinking? This is about as bad a decision that one can make both in the failure to recognize negligent infliction of emotional distress torts and the failure to adopt a meaningful standard to resolve private sexual matters between spouses. The decisions and the support for them is marginal and only touches the surface of the issues presented. Phillips has the right attitude in that he recognizes that severe distress is inherent from the very circumstances of marriage and that sexual matters should be kept private and that by allowing the tort, the court created an element of fault. Also Texas is community property, and the case book does not properly address this issue as it relates to community property law. The facts of this case indicate that W may have been doing the "acting" that was and is so common in such actions and may have become quite the little pity puppet during the trial.
COVENANT MARRIAGE AND DIVORCE
o In 1997, Louisiana adopted a new form of marriage termed covenant marriage
o Covenant marriage is harder to obtain
o In LA, a traditional marriage can be terminated in a no fault divorce if the parties have lived separate and apart for a period of 6 months or more
o To end a covenant marriage, the parties must live separate and apart for two years
o Other states have picked up something similar to this aspect
o In order to terminate you must attend counseling
o
RELIGIOUS LIMITS ON CIVIL DIVORCE
AFLALO V. AFLALO
o H and W were married in 1983 in Israel and have one child. W filed a complaint to dissolve the marriage. H answered the complaint and does not want a divorce. The parties engaged in a settlement conference but the issues were not resolved as H refused to give W a "get." As such, H refused to consent to a Jewish divorce. H's counsel, who was an Orthodox Jew, filed a motion to be relieved as counsel because of his religious convictions; but that was denied as H consented to following the recommendation of the Beth Din and give the "get" if that was the end result of those proceedings. W refused to settle without the "get." The trial court addressed the issues of its ability to grant the divorce without the obtaining of the "get."
o ISSUE: Does the Free Exercise Clause prohibit a court from ordering the issuance of a religious proclamation?
o RULE: The Free Exercise Clause prohibits a court from ordering the issuance of a religious proclamation.
o It may seem unfair that H may ultimately refuse to provide a "get." However, that unfairness comes from W's own sincere belief that she agreed to be obligated under; that if H does not provide here with a "get" she must remain an "agunah." That was her free choice in the first place and this court cannot issue an order compelling H to comply with Jewish religious doctrine and practice.
LEGAL ANALYSIS: This is a great decision. The New York legislature has stepped into the fray and made a law that forces H to give the "get" if he or she commences a matrimonial action.
ANNULMENTS AND SEPARATIONS
➢ Why would you want separation and not divorce? You are not sure and gives you more time to think about it; it is not final
➢ It may have some effect on your distribution of property
➢ Separation: Tax reasons but some times separation will sever all statutes
➢ Annulment: as if the marriage never happened; in the past people would go for annulments when they couldn’t get a divorce
➢ Alimony could be treated differently between divorce and annulment
➢ In common law, if you had annulment it rendered the kids illegitimate
STATE V. CONE
o Cone (D) married a girl who was fifteen years and two months old. D did this without the consent of his parents. D and the girl lived together for about six months and then separated. Five years later, D married another without getting divorce from his first "wife." D was found guilty of bigamy. D appealed.
o ISSUE: Is the marriage of a minor without consent of his parents void?
o RULE: The marriage of a minor without the consent of his parents is voidable.
o It is voidable. Such a marriage is not an absolute nullity and it can only be annulled by the judgment of a court. During this time, the marriage is valid and as such D is guilty of bigamy.
➢ The difference b/t divorce and annulment is in the outcome of the two decrees
➢ Divorce terminates a valid marriage, while annulment declares that no valid marriage ever took place because of some impediment at the time of the ceremony
➢ Today, many jurisdictions by statute provide for alimony
➢ At common law, any children born of an annulled marriage were considered illegitimate
➢ Sometimes annulment is elected in lieu of divorce because of differences in the jurisdictional requirements
➢ Alimony terminates when the recipient spouse remarries
APPLYING THE BEST INTERESTS STANDARD
WHICH PARENTAL TRAITS ARE RELEVANT?
➢ At common law the father was always given custody – idea that the woman and the kids were his property
➢ 19th Century England - started to look at father’s fitness as a condition so it wasn’t an absolute thing
➢ Parliament, 1939 passed act saying mom could have custody if the children were under 7 years of age
➢ In the 1970’s the whole gender thing was changing thus having changes on who got custody between the father and the mother
GENDER AND THE TENDER YEARS PRESUMPTION
EX PARTE DEVINE
o The trial court, pursuant to a divorce entered in the Devine marriage, ordered that Mrs. Devine be granted custody of the couple’s two infant children. The evidence produced at trial indicated that both parents were fit to be awarded custody, and despite the existence of evidence showing their shortcomings as parents, all things being equal, they both presented equal cases for custody. Based upon this finding, the trial court applied the presumption that the natural mother be awarded custody of the children of tender years should be applied in this case. Mr. Devine appealed, contending the tender years doctrine violated the 14th Amendment to the US Constitution as it illegally discriminated on the basis of sex. The court of civil appeals affirmed the lower court’s decision, and the AL S Ct granted certiorari
o ISSUE: Does the tender years presumption represent an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex?
o RULE: The tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex.
o The tender years presumption represents an unconstitutional gender-based classification which discriminates between father and mothers in child custody proceedings on the basis of sex. It has previously been held by the USSC that any statutory scheme which imposes obligations on husbands but not on wives establishes a classification based upon sex which is subject to scrutiny under the 14th Amendment. In this case, the tender years presumption creates a presumption of fitness and suitability of one parent without consideration of the actual capabilities of the parties. The doctrine does not survive the appropriate level of constitutional scrutiny and must be declared unconstitutional
➢ In order to uphold this statute you would have to look at state interest – welfare of the child (care and custody of child)
➢ Social role of the father – males skills (child rearing and diaper changing), allocation of time to occupation – they perpetuate stereotypes
➢ What is it when we are talking about the skills? Knowing what a child needs
➢ Primary care giver – shouldn’t look to see if it should go to mother or father innately, but to the primary care giver in the child’s life to promote stability for the child
➢ 1982 custody cases: fathers got custody slightly more than ½ of the time
PARENTAL UNFITNESS
HASSENSTAB V. HASSENSTAB (1997)
o The Hassenstabs were divorced and custody of their young daughter had been awarded to Carol, the mother. Thomas, the father, applied for a modification awarding him custody and Carol cross filed a petition for increased child support.
The district court found that no substantial and material change in circumstances had occurred that showed that Carol was unfit to retain custody or that the child’s best interests required a modification of her custody
o Thomas appealed, alleging that Carol’s homosexual relationships made her an unfit mother
o ISSUE: Does the party seeking modification of child custody bear the burden of showing that a material change in circumstances has occurred?
o RULE: The party seeking modification of child custody bears the burden of showing that a material change in circumstances has occurred
o Sexual activity by a parent is goverened by a rule which mandates that the establishment of a material change in circumstances justifying a change in custody requires showing that the minor child was exposed to such activity and that a change of custody is in the child’s best interests
o Because the evidence did not establish any harmful effect on the child because of Carol’s homosexual relationship, there has been no showing of a material change of circumstances
o Affirmed
Routine becomes important, had this not been a modification and had been at the first custody hearing, the father would have likely obtained custody
ALLEN v. FARROW
o From the inception of Allen’s relationship with Ms. Farrow until a few months after Farrow’s adoption of daughter, Dylan Farrow, Allen wanted nothing to do with Farrow’s children. He agreed to have a child of their own only after Farrow promised to assume full responsibility for the child. Problems between them grew during Farrow’s pregnancy with their child, Satchel. Shortly after Allen adopted Dylan and another child of Farrow’s, Moses, Allen began an affair with Farrow’s daughter Soon-Yi Previn. Farrow’s discovery of the affair intensified her concerns about Allen’s behavior toward Dylan, which she characterized a sexually abusive. Both parties then sought to obtain custody of Moses, Dylan and Satchel Farrow.
o Allen denied that he had sexually abused Dylan.
o Court awarded custody to Farrow, giving Allen only supervised visitation rights. Allen appealed, seeking either custody or increased visitation with the 3 children
o ISSUE: Must any determination of issues of child custody or visitation serve the best interests of the child and that which will best promote the child’s welfare?
o RULE: Any determination of issues of child custody or visitation must serve the best interests of the child and that which will best promote the child’s welfare
o The testimony, character, and sincerity of all parties must be evaluated
o All of the trial evidence supports the determination as to custody and visitation with respect to Dylan
o Even if sexual abuse did not occur, issues concerning Allen’s inappropriately intense relationship with Dylan would best be resolved in a therapeutic setting
o The record also supports the conclusion that Allen may, if unsupervised, influence Satchel inappropriately
o Moreover, it would not be in Moses’s best interests to be compelled to see Allen if he does not wish to
o In view of the totality of the circumstances, the best interests of these children would be served by remaining together in custody of Ms. Farrow, with the parties abiding by the visitation schedule established by the trial court
Does he even really want custody or trying to get leverage against Farrow?
GUARDIANSHIP OF SIMPSON
o Guardianship was established for Sydney and Justin Simpson after their father was jailed on the charge of murdering their mother and another victim
o After his acquittal in a criminal trial, OJ requested termination of the guardianship
o At the time of the guardianship proceeding, Simpson still faced a civil trial in which the plaintiff’s sought to establish his liability for Nicole’s death, but the court did not wait for the conclusion of the civil trial since it felt that it would not shed any light on the guardianship termination
o At the hearing, the trial court refused to consider any evidence regarding the circumstances of Nicole’s death, explaining that the civil case entailed a lower standard of proof than one involved in the guardianship proceeding
o The judge held that the burden falls on the guardians to show by clear and convincing evidence that it would be detrimental to return the children to their natural parent
o The guardianship was terminated and the Browns appealed
o ISSUE: Is the burden in a guardianship termination proceeding upon the parent to show overall fitness on his or her part?
o RULE: The burden in a guardianship termination proceeding is upon the parent to show overall fitness on his or her part
o The trial judge wrongly assumed that the burden was upon guardians to show by clear and convincing evidence there would be detriment to the child to be returned to the natural parent.
o Because the trial judge applied the wrong burden of proof, she imputed too much significance to Simpson’s acquittal in the criminal trial
o Because the trial court excluded evidence of whether Simpson killed the children’s mother, and also clearly erred in excluding evidence bearing on the domestic violence issue in the mother’s diaries, the case must be remanded for another hearing
IN RE MARRIAGE OF CARNEY
o The Carneys were married in 1968, and two sons were born of the marriage
o In 1972, Mrs. Carney left her husband relinquished custody of her sons to her husband
o Mr. Carney moved from NY to CA and began living with a woman, with whom he had a child.
o The woman raised all three children
o In 1976, Mr. Carney was paralyzed and rendered a quadriplegic
o Shortly after, he filed for a divorce and Mrs. Carney petitioned for an order awarding her custody of the children
o Mr. Carney was physically unable to take care of himself as well as the two boys
o He was living with a woman who took care of him both physically and emotionally
o Trial court awarded custody to Mrs. Carney and Mr. Carney appealed
o ISSUE: May a physical handicap by itself be used to deny a parent custody of his children?
o RULE: A physical handicap that affects a parent’s ability to participate with his children in purely physical activities may not by itself be used to deny custody
o A physical handicap that affects a parents ability to participate in with his children in purely physical activities is not a changed circumstance of significant relevance and materiality to render it either essential or expedient for their welfare that they be taken from his custody.
o The overwhelming weight of the evidence presented at trial indicated that Mr. Carney demonstrated a superior ability to act as parent to the boys
o The sole reason for the trial court’s decision to change custody was his physical disability
o The physical disability was not proven to act so as to contravene the children’s best interest, and the custody should not have been changed
RACE
PALMORE V. SIDOTI
o Sidoti petitioned for modification of a prior judgment awarding custody of his daughter to his former wife due to remarriage to a black man
o The trial court found that Palmore and her husband adequately cared for the child but the social pressure that would be imposed on the child due to the mixed marriage would be so grate that it would be in her best interest to award Sidoti custody
o Palmore appealed
o ISSUE: Can a natural mother be divested of custody of her child merely because of her remarriage to a person of a different race?
o RULE: A natural mother cannot be divested of the custody of her child merely because of her remarriage to a person of a different race
o Private biases and their prejudicial impact cannot be made to determine judicial decisions
o Racial discrimination is wholly contrary to public policy, and custody decisions cannot turn on racial considerations
o Trial court held that, but for the mixed marriage, Palmore was fit for custody
o To deny custody would be to deny basic constitutional rights
o Reversed
FARMER V. FARMER
o Bethany Farmer was the daughter of Linda Farmer, a white woman, and Billie Farmer, a black man
o Farmers were married and were getting a divorce; Linda sought custody
o Mr. Farmer argued that in a race-conscious society, the best interests of the child dictate that she should be with the parent of the race with which she will be identified.
o All of the psychologists who testified agreed that an interracial child will be perceived as black and all agreed an interracial child may suffer damaging internal conflicts as the product of a mixed identity
o None of the experts would state that custody of an interracial child should always be determined by the childs’ dominant racial characteristics
o Experts for Mr. Farmer stated that a child perceived as black needs a black family to develop a black identity
o They added that black people generally are more accepting of people of mixed heritage
o Experts or Mrs. Farmer stated that race is of low priority in determining the best interests of the child
o It is more important to place the child with the parent who is best able to provide love, interest, consistent parenting, education, emotional stability, economic stability, and other physical and emotional needs
o Evidence showed that Mrs. Farmer would be better able to provide for these needs
o A county agency evaluation agreed and recommended that she have custody of Bethany
o ISSUE: Does the “best interests of the child” rule require a court to award custody of an interracial child to the black parent?
o RULE: The “best interests of the child” rule does not require a court to award custody of an interracial child to the black parent
o The majority rule in the US is that race is but one of many factors which may be considered in a contest between biological parents for custody of an interracial child.
o The court of Bethany’s future will be affected by her mixed heritage, but it may be more severely affected by an inappropriate custody disposition
o Based upon the evidence that Mrs. Farmer would be better able to provide for Bethany’s needs, it would be in Bethany’s best interest to be with her mother, Mrs. Farmer
o Custody so awarded
RELIGION
QUINER V. QUINER
o Mr. and Mrs. Quiner belonged to a religious denomination known as the Exclusive Brethren, which taught the practice of separation
o This practice required that all those not following the religion not be associated with by those within the religion
o Because of the harsh ramifications of the concept of separation, the Exclusive Brethren split into two groups, with Mr. Quiner joining the less strict group
o Mr. Quiner then petitioned for divorce and custody of the couple’s minor child
o At trial, evidence was presented that if custody were granted to Mrs. Quiner, she would bring the child up in the more strict sect of the religion, and this would impact unfavorably upon his development
o The trial court relying heavily on this evidence, granted custody to Mr. Quiner
o Mrs. Quiner appealed, contending the trial court erred in basing its decision on custody upon her religious beliefs
o ISSUE: May a parent be denied custody of a child based solely upon his or her religious beliefs?
o RULE: Custody of the child may not be denied based solely upon the parent’s religious beliefs
o A court cannot constitutionally impose upon parents its own beliefs concerning the appropriateness of religious teachings
o Unless the religious teaching is in some way physically or emotionally harmful to the child, a court must not take such religious beliefs into consideration in making the custody award
o The overriding principal in each custody case is the best interest of the child
o It cannot be said in this case that the mother’s religious beliefs will in some way impact negatively upon the child’s best interest
o Reversed
KENDALL V. KENDALL
o Although the Kendalls had agreed to raise their children in the Jewish religion, Mr. Kendall later become a fundamentalist Christian and wanted to convert his children as well
o After filing for divorce, Mrs. Kendall’s request for the appointment of a guardian ad litem was granted in order to address the inter-religious conflict between the parties.
o The judge found it substantially damaging to the children to leave each parent free to expose the children to his or her religion and included in the divorce decree certain restrictions upon religious exposure, decreeing that the GAL was to explain the terms of the agreement to the children
o Mr. Kendall appealed, arguing that the judge’s findings did not demonstrate substantial harm to the children so as to warrant the limitations imposed on his liberty interest in educating his children in the tenets of his religion
o ISSUE: When demonstrable evidence of substantial harm to the children has been found, does a divorce judgment limiting the children’s exposure to religious indoctrination burden the parent’s right to practice religion under the Free Exercise clauses of the state and federal Constitution?
o RULE: When demonstrable evidence of substantial harm to the children has been found, a divorce judgment limiting the children’s exposure to religious indoctrination does not burden the parent’s right to practice religion under the Free Exercise clauses of the state and federal Constitution
o A diversity of religious experiences, may in particular circumstances, disturb a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future
o The children may experience choosing a religion as choosing between parents, a task that is likely to cause significant emotional distress
o Clear evidence of substantial harm has been found in this case
o It is not telling you not to do your thing, just keep it away from the children
o When it makes the child uncomfortable, this is where we will see a leeway in the courts
NOTES
o Although most courts have adopted the view that the custodial parent should decide questions of religious upbringing, some have imposed religious conditions
o How much should the kid have to say on where they want to go?
o What kind of factors would make a difference?
a. Maturity level to express preference
• Courts will say this in different ways
THE ROLE OF THE CHILD’S PREFERENCE
MCMILLEN V. MCMILLEN
o When the McMillens were divorced, the mother was awarded primary custody
o The father repeatedly sought to modify the custody order and finally was awarded custody when the child testified that he preferred to live with his father
o He was never deprived of attention from either house but did testify that he didn’t like his step-father
o In order for there to be a modification there has to be a material change in the environment
o On appeal, the court vacated the order and reinstated the previous order based on its determination that the record failed to present any circumstances warranting a change in custody and the child’s best interests would not be served by changing custody merely because the child wished it
o Father appealed
o ISSUE: Although the express wishes of a child are not controlling in custody decisions, do such wishes constitute an important factor that must be carefully considered in determining the child’s best interests?
o RULE: Although the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child’s best interests
o The child’s steadfast wish to live with his father was properly considered, and there was no abuse of discretion in the amount of weight afforded that preference
o Reversed
NOTES
o Uniform Probate Code §5-206 gives a minor of 14 or more years the right to “nominate” his guardian unless his choice is clearly contrary to the best interests of the minor
o States are divided on most procedural questions of where and how to ascertain a child’s preference
o Several states require that counsel for parents attend in-chambers interviews of children
o Many states require that a record be made of in-chambers interviews
THE USE OF PSYCHIATRIC AND PSYCHOLOGICAL EXPERTS
o Becomes problematic b/c you need to ask if court is able to order psychiatric tests and who is going to pick who administers these tests
o What qualifications
o Not only looking at child but looking to see if parent is physically fit
DiSTEFANO V. DiSTEPHANO
o The DiStephanos sued each other for divorce and custody of their children
o Pursuant to an agreement of the parties, the court ordered a psychiatric evaluation of each of them to determine who should receive custody
o The court confidentially reviewed the report and awarded custody to Mr. DeStephano
o Mrs. DiStephano appealed, contending the report could not be used confidentially
o ISSUE: May psychiatric reports be used confidentially by the court in determining custody
o RULE: Psychiatric reports must be made available to the parties to a custody proceeding to allow for comment and cross-examination
o The accuracy of the report must be beyond question as it serves as evidence of the best interest of the children
o The accuracy is assured only if it is subject to review by the parties
o Thus, it was error to preclude its disclosure
ROSE V. ROSE
o Steve and Diane were divorced and Steve retained custody of their 2 year old son Jason
o Questions arising from the new custody hearing: 1) the moral, emotional, and physical fitness of the parties; and 2) the desirability of continuing an existing relationship and environment
o Diane attempted suicide in the past, but the court is convinced that she is not now suicidal
o If she were given custody, she would be able to handle it
o Both parents are physically and mentally fit to care for Jason
o They are both morally fit to care for Jason
o Greater edge on Diane because she would be continually available
o Diane is still immature but Steve has progressed much faster academically than socially and emotionally
o Steve is a demearing person, he’s prone to criticize and quick to demonstrate some kind of intellectual superiority
o In considering the emotional makeup of the parties, the thing they will pass on to their child, there is a large preference to Diane
o The best interests of Jason like in his care, custody and control by Diane Rose, subject to reasonable and seasonable visitation by his father
o Appeals court affirmed this ruling
Can you impose limits on what the parent can or cannot do?
What is the trend today – more and more joint custody and big father’s movement
No longer tender years movement
IMPOSING LIMITS ON PARENTAL CONDUCT
CHICOINE V. CHICOINE
o Lisa had a series of lesbian affairs while married to Michael who later obtained a divorce and custody of their children
o When the trial court awarded Lisa restricted visitation rights, Michael appealed, claiming that the trial court abused its discretion in allowing unsupervised overnight visitations to Lisa
o RULE: Before granting liberal visitation rights, trial courts must provide adequate enforcement measures to assure compliance with any restrictions imposed, so as to insure that children are not placed in an unsafe or unstable environment
o The restrictions on Lisa’s visitation rights imposed by the trial court are difficult, if not impossible to enforce
o The trial court has a duty to ensure that the children are protected at every turn
o On appeal, the court was troubled by the trial court’s granting of exclusive, unsupervised, overnight visitation
o General rule that a parent’s sexuality in and of itself alone is not a sufficient basis upon which to deny completely a parent’s fundamental right
Sexual presence is not determinative, but the conduct to the child
SCHUTZ V. SCHUTZ
o The Schutzes divorced
o Mrs. Schutz was given custody of their children
o Mrs. Schutz and the children later moved away and Mr. Schutz was unable to locate them for several years
o When he did locate them, the children were extremely hostile
o Apparently Mrs. Schutz had falsely told the children that Mr. Schutz had abandoned them.
o Mr. Schutz filed a petition for an order compelling Mrs. Schutz to allow visitation and to refrain from making untrue comments about him
o The petition was granted
o Mrs. Schutz appealed, contending that the order violated her free speech rights
o RULE: A court may order one parent to refrain from making negative comments to her children regarding the other parent
o A custodial parent has an affirmative duty to encourage and nurture the relationship between the child and the noncustodial parent
o The duty is owed to both the noncustodial parent and the child
o Pursuant to this, the custodial parent must take measures to promote positive interaction between the noncustodial parent and the children
o One aspect of this is to not make negative misstatements
o While this does to some extent burden free speech, such burden is incidental and does not rise to a constitutional violation
o This is precisely the situation here
The children want to stay with their mother – they fear and despise their father because he failed to support them
ENFORCEMENT OF VISITATION RIGHTS
Once you make the rules, how do you enforce them?
SMITH V. SMITH
o The Smiths divorced, and the court ordered a set schedule of visitation rights for Mr. Smith
o The visitation schedule was adhered to by both parties until Mrs. Smith remarried, and visitations became sporadic
o Mr. Smith petitioned the court for an order citing Mrs. Smith with contempt for failing to deliver the children pursuant to the visitation order
o Mrs. Smith defended on the basis that she had done all she could to encourage the children to visit with their father, however, their reluctance to do so precluded such visitations
o Mrs. Smith was sentenced to five days in prison
o She appealed, contending that her encouragement of the children to comply with the visitation order fulfilled her duties under such order
o RULE: a custodial parent who does not deliver the children to the noncustodial parent pursuant to a court ordered visitation schedule is subject to a contempt citation
o The children in this case were of such tender years that they were unable to make an independent decision concerning their visitation with their father
o Therefore, the mother had more responsibility than just to encourage the children to visit with their father
o She had an affirmative duty to deliver the children pursuant to the noncustodial father pursuant to the court ordered visitation schedule
o Her failure to do so rendered her in contempt of such order and subjected her to the penalties imposed by the court
o As a result, the penalties assessed were proper
o However, the penalties do not allow Mrs. Smith to purge herself of her contempt
o Therefore, the sentence is suspended to allow her to comply with the court’s order
EGLE V. EGLE
o The Egle’s divorced and custody was granted to Ms. Egle
o Mr. Egle, a resident of the canal zone in Panaman was granted liberal visitation rights
o Continuously, Mrs. Egle moved the children around in an attempt to frustrate Mr. Egle’s visitation rights
o She also indoctrinated the children against their father, further frustrating Mr. Egle’s visitation rights
o Mr. Egle subsequently successfully petitioned the court for an order modifying the custody award, contending that it was in the best interest of the children that custody be changed to him
o Mrs. Egle appealed, contending that the trial court had found that she was an excellent parent, and it could not change custody solely upon her actions in frustrating Mr. Egle’s visitation rights
o RULE: A court may change custody from a custodial parent to a noncustodial parent based upon the custodial parent’s actions in frustrating the noncustodial parent’s rights
o It is clearly in the child’s best interest to formulate a parental relationship with both the mother and father
o In this case, the mother’s actions have frustrated the development of such a relationship between the child and his father
o Thus, the trial court’s decision was premised upon the child’s best interest in reestablishing the relationship between the child and the father
o The actions of the mother in frustrating the father’s visitation rights constituted a sufficient change in circumstances to warrant the court’s modifying the custody order
o As a result, the change in custody was proper
GLEISS V. NEWMAN
o Newman was granted custody of a minor child
o Gleiss, the child’s mother was granted visitation rights
o Gleiss brought an action in tort for compensatory and punitive damages against Newman and Hoverman for their alleged interference with her visitation rights
o The court dismissed Gleiss’ complaint on the grounds that it failed to state a cause of action, and from the order dismissing her complaint
o Gleiss appealed
o RULE: A noncustodial parent does not have a cause of action in tort to recover damages against a custodial parent for interference with the noncustodial parent’s visitation rights
o There already exist viable and effective remedies for enforcement of a noncustodial parent’s visitation rights
o To recognize this cause of action would encourage claims for petty infractions and would further clog our already overburdened courts
o Finally, recognizing this cause of action is not in the best interests of the child since to do so would shift the focus away from visitation
o Therefore, this cause of action will not be recognized
DENIAL OF VISITATION
KEMP V. KEMP
o Mr. Kemp and his son had become estranged, physically and emotionally, since the Kemps divorced
o This estrangement was due in part to his absence related to job responsibilities and to his child’s expressed dislike for him engendered by Mrs. Kemp’s attitude toward her ex-husband
o Due to Mrs. Kemp’s refusal to allow visitation, Mr. Kemp discontinued child support payments
o She petitioned to hold him in contempt, and the trial court modified the visitation order denying Mr. Kemp any further right to visitation
o Mr. Kemp appealed, contending a complete cessation of visitation was not support by the facts and evidence
o RULE: a court may deny visitation rights to a parent only in the presence of extraordinary circumstances indicating such would be in the best interest of the child
o No such circumstances were shown here
o Job responsibility and spousal animosity often if not always place stress on the relationship between the child and the noncustodial parent.
o These cannot be used to deny all visitation rights
Study was done on divorced families
1. Years after the divorce, men were more secure financially then women
2. Men who were older at the time of divorce were more likely to have remarried than women
3. For men, a successful remarriage is predictive of overall well-being
4. Women who were in their late 30’s and 40’s at the time of divorce were less likely to remarry and more likely to be under-employed and complain of loneliness
5. Children of divorced patens tend to fear repeating the mistakes of their parent’s marriage, and may be plagued by fears of rejection and betrayal as they enter into adult relationships of their own
INTERFERENCE WITH VISITATION
A. BY GOVERNMENT
FRANZ V. UNITED STATES
o Franz and his wife divorced, after which she became involved with a member of organized crime
o In return for this individual’s testimony, the Government placed Mrs. Franz and her children in the witness protection program, changing their residence and identities
o Franz sued, contending that as a result his parental rights were summarily terminated and such was unconstitutional
o The district court dismissed for failure to state a claim and Franz appealed
o RULE: The government may, under some circumstances, interfere with a parental relationship in order to promote the public interest
o The danger of organized crime coupled with the difficulty to inducing testimony indicate a strong governmental interest in the use of the witness protection program
o However, the use of such is not indicated in every case, and where parental rights are jeopardized a full prior opportunity to he heard is required
o Officials of the Marshals Service acknowledge that they are capable of arranging meetings between William and his children without endangering Allen, Catherine, or the children, but they refuse to establish such contacts without the mother’s consent
B. BY STEPPARENTS
BEVIS V. BEVIS – Spartanburg case
o Joe Bevis was awarded custody of his children after successfully suing Jean for divorce on the grounds of adultery
o Joe remarried Mary Lee Bevis and the children lived with them
o After several years, Mary Lee petitioned to adopt the children
o The court reviewed evidence of Jean’s numerous unsuccessful attempts to visit and communicate with the children and determined her parental rights should not be completely terminated
o Mary Lee appealed
o RULE: It is within a court’s discretion to determine, based on all pertinent factors, whether in granting custody to another the rights of the natural parent should be completely cut off
o In this case, a factual finding was made whereby no abandonment was found
o Thus, the court did not abuse its discretion in denying adoption to the stepparent which would have terminated the natural parent’s rights
Notes on the Rights and Obligations of Stepparents
o Most courts will allow a stepparent to adopt a child over the objection of the non-custodial parent in only the most extreme circumstances
o The extreme case of the issues posed arises when the custodial, biological parent dies, and a custody fight occurs between a stepparent and the non-custodial biological parent
o Traditionally, most courts have given custody to the biological parent
o A few courts have ruled for the stepparent if the child has lived with the stepparent long enough that he has become the child’s “psychological parent”
1. JOINT CUSTODY
THRONSON V. THRONSON
o The Thronsons had a child. Both were fully employed, but after the child was born, Ms. Thronson became the child’s primary caretaker and a part-time pharmacist
o Mrs. Thronson sued for divorce
o In the divorce decress, the court awarded joint legal custody to the parents, even though Mrs. Thronson refused to agree to such an arrangement
o She appealed
o RULE: A court may not award joint legal custody of a child to its parents over the objections of a parent
o Utah’s 1988 statutory revisions adopted the notion of joint legal custody, which involves a sharing of both parents of the basic rights, privileges, and duties of child-rearing
o However, the statute clearly provides that both parents must agree to joint custody as a condition of its imposition
o Here, the trial court apparently considered such custody in the best interests of the child, and ordered it over Ms. Thronson’s objection
o The court was not free to do this, and consequently it was error to do so
Susan Steinman, Joint Custody: What We Know, What We Have Yet to Learn, and the Judicial and Legislative Implications
27 states have enacted some for of joint custody legislation
4 values that distinguish joint custody:
1. Both parents are viewed as equally important in the psychological and physical life of the child
2. Both parents share authority for making decisions about the children
3. Parents cooperate in sharing the authority for and the responsibilities in raising their children
4. Children spend a significant amount of time living with each parent
Judges differ widely on the meaning of joint custody
Things which make joint custody work
1. Commitment to the arrangement
2. The parent’s mutual support
3. Flexible sharing of responsibility, and
4. Agreement on the implicit rules of the system
BIRNBAUM V. BIRNBAUM
o Mother and Father, pursuant to an agreement incorporated into the judgment dissolving their marriage, received joint legal and physical custody of their 3 daughters
o During the school year, the children lived with mother and spent weekends and Wednesday afternoons with their father
o After the mother moved, both parties moved to modify the existing order for joint physical custody, each seeking joint custody and a limitation on the other’s visitation rights
o They agreed to undergo coparenting counseling, which resulted in an evaluation and recommendation by the psychologist selected
o The evidence presented indicated that the father’s main concern was to keep his children placed in a more advantageous and superior school system
o The psychologist praised both parents, but contrary to her recommendation, the court altered the coparental residential arrangements in such a manner such that the father cared for the children a majority of the time, and the children would attend his preferred school system
o The mother filed a motion for reconsideration, which was denied
o From that decision she appealed
o RULE: An order modifying the coparental residential arrangements of parents having joint custody of their children does not constitute a change in custody
o The court’s order altering the coparental residential arrangements in the present case left the prior order for joint legal and physical custody of the children untouched
o The parties erred in treating this as an appeal from an order modifying child custody since there has been no change of custody
o Only if the trial court has abused its discretion will its decision be overturned
o Here it has not
o There was ample testimony from the father and the psychologist to support the decision
o The parties cannot now complain of the decision if they are unable to modify the residential relationships among themselves and call upon the courts to do so
o Affirmed
This case discussed 4 types of parenting relationships
1. Exclusive
a. Exclusive role bound type of parenting, often typified in sole custody arrangements where one parent, usually the mother, makes all the decisions, has all the responsibility and has all the authority
b. The parent without custody pays child support and commonly has visitation twice a month
c. Non custodial parents can give opinions regarding major decisions in education and medical treatment but he or she may have no functional authority
2. Parallel
a. Both parents are actively involved in the child’s life and have input into major decisions but there is little interaction between the parents
b. Parents are unable or unwilling to discuss the children’s needs with one another and their communications are strained or nonexistent
c. Children are not free to talk about what went on in the opposing parents home
d. Parallel parenting is just the exclusive parenting problem all over again
3. Shared
a. Parents work together and support one another as parents
b. Business like relationship
c. Children can share their lives with both parents and have open access by telephone to each parent
4. Cooperative
a. Builds on that working relationship with an additional spirit of forgiveness and easier give and take
b. Child has consistent and continual access to both parents
c. If the parent with custody is the “in-house” parent, the parent without custody often considers his or her position as the “out-house” parent, a visitor peripheral and powerless while the resident parent may feel overwhelmed and defensive
2. COUNSEL FOR THE CHILD
SCHULT V. SCHULT
o Cheryl Schult brought a dissolution of marriage action against Jeffery Schult and sought custody of their only child
o The child’s maternal grandmother intervened and the trial court appointed both an attorney and a GAL for the child
o Jeffrey filed a cross-complaint in which he too, sought custody of the child
o The trial court granted sole custody to the intervenor, at the request of the child’s attorney
o Cheryl and the GAL objected, but the trial court overruled their objections
o Cheryl appealed, alleging that the trial court abused its discretion by allowing the child’s attorney to argue against the recommendation of the child’s GAL
o RULE: It is within the trial court’s discretion to determine, on a case by case basis, whether to allow the child’s attorney to advocate a position that is different from that recommended by the GAL
o We reject a rule that would unduly restrict the trial court’s ability to receive information that might aid it in determining where the best interests of a child lie
o In light of the trial court’s findings that Cheryl’s boyfriend had abused the child, and that Cheryl had sided with the boyfriend against the safety of the child, we cannot conclude that the attorney for the child should have been prevented from advocating that custody not be awarded to the plaintiff
o Court looks at all information even though attorney is not arguing the same as the GAL
o Even when you have the rules you see people gravitating to adversarial position
o Idea that the one that is most attached will give up more in the bargaining of keeping the child – primary caretaker presumption would avoid some of this
o Support idea that the one that has spent more time with the child would be better for the child
o This case uses primary caretaker presumption
Things to look for:
• Who prepares meals
• Dresses child
• Purchases clothes
• Takes them to doctor
• Social interaction
• Arranges alternative care
• Disciplines them
• Teaches them elementary skills
3. PRESUMPTION FOR PRIMARY CARETAKER
GARSKA V. MCCOY – example for primary caretaker proposition
o McCoy gave birth to a boy out of wedlock and lived with and cared for the infant during his first year without any support from the father, Garska
o The child developed a respiratory problem, and McCoy’s grandparents petitioned the court to adopt the baby so that their medical insurance would cover him
o Garska then began to send small amounts for the child’s support and filed a petition for habeas corpus to gain custody of the child
o At all times, McCoy lived with and cared for the child
o The trial court awarded Garska custody, finding him to be better educated, more economically stable and having a better demeanor that McCoy
o McCoy appealed, contending she should have been favored to receive custody as the mother of the child
o RULE: A child’s best interest is served by awarding custody to the primary caretaker regardless of sex
o The primary caretaker most likely will have developed the more stable relationship with the child through their day-to-day interaction
o To award custody to the noncaretaker parent would be unduly disruptive to the child
o Therefore, if the court determines that the primary caretaker parent achieves the minimum objective standard of parental fitness, it must award him or her custody
o In this case McCoy was shown to be a fit parent, and therefore, she should have received custody as the primary caretaker
IF you have primary caretaker presumption and that parent is fit most of the time that is the parent that is in charge of kids, especially for tender years
Some say that Primary caretaker was used to replace tender years presumption
It is gender neutral but in our society, how many times is the primary caretaker the dad
Society has put men in this situation – Kramer v. Kramer
YOUNG V. HECTOR
o Young, an attorney, filed from divorce after 13 years of marriage to an architect, Hector
o Although at first Hector was better off financially, since moving to Florida in 1989 Young has achieved more professional success and generally spent more time with the children on weekends
o Hector spent more time with the children during the week, participating in the children’s school and after school activities
o Hector lacked computer skills necessary to find employment and considered enrollment in a masters program to acquire them
o The trial court awarded primary residential custody of the children to Young, frequent and continuing contact with Hector, and a change of custody within two to five years
o Hector appealed, alleging the trial court abused its discretion by granting primary residential custody to Young
o RULE: A trial court’s decision as to which parent should be awarded primary residential custody of the children should attempt to preserve and continue the caretaking roles that the parties have established
o In the instant case, the trial court’s award of primary residential custody of the children to the attorney has the effect of not continuing the caretaking roles that the parties have established
o A parent’s financial resources should not be a determinative factor in deciding which parent should be the primary residential parent
o The award of alimony to the architect was inadequate in light of the rehabilitative plan presented by the architect and the lifestyle established during the parties’ marriage
o Reversed and remanded
Where would the kids have more stability?
Theory that is raised – is it relevant when the father got more involved with the kids – he got more involved after she filed for divorce
STANDARDS FOR MODIFYING CUSTODY
o Most courts will modify a custody decision only if there is substantial change in circumstances, some states say that you must show that if you don’t move them, there will be a harm to the children
o Added factors – custody agreement has already been settled
o Have to show some change
o May not be who we would have given the children to initially
PERREAULT V. COOK
o Perreault and Cook divorced, and each remarried other people
o The divorce resulted in Perreault being granted custody of the couple’s three children
o Perreault subsequently divorced his second wife and Cook petitioned the court for modification of the custody order, contending the subsequent divorce constituted a change in circumstances requiring the court to reevaluate the custody situation
o The court modified the custody order and granted custody to Cook, and Perreault appealed, contending the court erred in considering the divorce a substantial change in circumstances to change the custody order
o RULE: The relationship established by the custody award should not be disturbed unless the moving party demonstrates that the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility the child will be harmed if he continues to live under the present arrangement
o The special master to whom the case was referred clearly found that the more stable environment for the child would be with Cook
o Cook was in a stable marriage, in contrast to Perreault, whose marriage had disintegrated
o Therefore, the finding of changed circumstances upheld
KING V. KING
o The Kings divorced when their son was 8 years old, and they were awarded joint custody of him
o Four years later, Mr. King successfully petitioned for exclusive custody
o Mrs. King appealed, contending the increase in the child’s age was not a sufficient change in circumstances to allow for a reconsideration of the original order
o RULE: A substantial increase in the age of a child during some critical period in his life constitutes a sufficient change in circumstances to allow a change in a custody decree
o A child approaching manhood at the age of 12 is in a different position that one at 8 years old
o Thus, it was not an abuse of discretion nor clear error to consider the custody petition
When they hit significant ages, ie puberty, they need to be with a specific parent
In and of itself, age doesn’t affect change
Another thing that allows modification is re-marriage with step-parents
LAZAREVIC V. FOGELQUIST
o Lazarevic, the father, sought to modify custody and enjoin his 6 year old son from relocating with the custodial parent, Fogelquist, the mother, to the Aramco compound in Saudi Arabia
o The mother requested to relocate in good faith, to promote continued stability for the child and his siblings, to improve their financial position and to otherwise improve the family’s quality of life
o RULE: A full, general, and detailed inquiry as to what is in the child’s best interest is necessary for approval of relocation
o Although exceptional circumstances do not exist, the mother’s testimony indicates that her desire to relocate is entirely voluntary and motivated by her goal to live in the Aramco compound in Saudi Arabia with all the potential benefits it entails
o Since the father has not attempted to secure gainful employment sufficient to support the child and he was never married to the mother, the court finds that if relocation were not permitted, great pain and turmoil would result and would not be in the child’s best interests
o The mother will settle an order providing for the posting of a bond to secure compliance with all provision of the decision concerning the father’s rights to visitation and access
Mother must set up visitation and find a way to facilitate interaction with the father which they do with computer technology
• Wives experience a 30% decrease in average income after divorce, whereas husbands experience only a 10% drop in average income
• Alimony started cropping up and theories arose as to why it came about – offset harsh property laws that existed b/c the men basically owned all of the property; alimony was given as deturent to divorce; want alimony because after the divorce who is going to take care of these women when they stayed home to take care of the children
CURRENT POLICIES
• Divorce in our country is regulated by the states and the policies in each vary
• Allocation of property, alimony and child support has been left to the discretion of trial court judges
Three different types of assets that may be at issue
1. Property accumulated by one or both spouses at the point of divorce
2. Alimony may be awarded to one of the spouses
3. One spouse may be ordered to pay child support to the other spouse
What is the purpose of alimony?
• May be to deter husbands from divorcing their wives
• Keep wives from becoming paupers at a time when few jobs were open to women
• Ohio Supreme Court: purpose was to offset the harsh effect of the early property laws, under which a wife was incapable of holding property and all her rights to a personal property acquired before and after marriage became her husband’s property; American courts chose to extend the coverage of alimony first, to a wife whose misconduct had been grounds for the divorce, and, then to ex-wives, separated from their ex-spouse
Principles for allocating assets
1. The Fault Principle
a. Using the allocation of assets to punish the spouse who caused the marital breakup is perhaps the oldest guiding principle
b. Fault is alive and well in many jurisdictions
c. Many states that have adopted no-fault divorce statutes, moreover, still permit evidence of marital misconduct to bear on the allocation of assets at divorce
d. Drawback: it is not easily translated into cash
e. How much is adultery worth?
2. The Need Principle
a. Need is today the leading candidate to replace fault as the key principle guiding the allocation of assets at divorce
b. Spouse is entitled to be supported by his or her ex-spouse at a level sufficient to stay off the welfare rolls
c. Positive: savings to taxpayers
d. Negative: tendency to foster a life of continuing dependency by one spouse on the other
e. According to this principal, the initial allocation of assets should not depend on the length of the marriage and alimony should end only when need ends, that is, when the dependent spouse dies or remarries
3. The Status Principle
a. Windfall view of marriage
b. If you marry a millionaire, or someone who becomes a millionaire, you are entitled to live like one even after the marriage ends
c. Directs that property should be divided and alimony awarded without regard to the length of the marriage and should terminate only when the recipient spouse dies or is able to support himself at the appropriate level through remarriage or other action
4. The Rehabilitation Principle
a. The needy spouse should be given enough to “rehabilitate” himself to the point that further alimony will not be needed
b. States generally have not clarified whether the end point of rehabilitation should be measured be need or status
5. The Contribution Principle
a. Based on the view that marriage is an economic partnership to which each spouse contributes, although some contribute services rather than cash
b. Recipient spouse need not feel as if he is receiving a private welfare dole from the paying spouse, but is instead receiving earned benefits
c. Weakness: difficulty of computing the benefits owed
i. Possible approaches to computation:
1. The Market Value of Services Approach
a. Value of services actually performed by the stay-at-home spouse is computed taking into account the length of the marriage
b. Reasonable amounts for room and board and other reasonable living expenses should then be deducted
c. Drawback: many of the services performed in the home have been traditionally under-valued by the job market – unrealistic low estimate
2. The Partnership Approach
a. All assets acquired during the marriage are divided equally
b. View marriage as a partnership and equal division avoids the uncertainties of the market-value-of-services approach
c. Weakness: does nothing to offset the labor market disadvantage experienced by a spouse who worked exclusively on domestic matters during marriage
d. Resembles community property
3. The Foregone Opportunities Approach
a. One way of assessing the disadvantage faced by stay-at-home spouse is to compute what he would have earned over the rest of his working life is he had stayed in the labor market throughout the marriage
b. Foregone opportunities cost should be shared by both spouses when assets are allocated
c. Disadvantage: may require excessive speculation
d. If the stay-at-home spouse failed to complete his education it may be extremely difficult to decide what his earning capacity would have been
4. The Enhanced Earning Capacity Approach
a. Look for any enhanced earning capacity experienced by the other spouse that can be attributed, at least in part, to the stay-at-home spouse
b. Marriage in which one spouse works to support both of them and to put the other spouse through law school is an example of this situation
c. Alimony, according to the contribution principle, should end only when the earned share has been paid off
d. One lump sum OR should not end because of remarriage or even death, but only when the full “debt” is paid off
Alimony is basically future payments to be deducted from future earnings of payor to payee
The shorter the marriage has been, the less the alimony to be paid
Tend to be three kinds of people who usually get help:
1) Those with full time responsibilities of small children – there is child support but work on the premise that a parent has to give a lot of time to a child that takes away from work time
a. Generally child support only pays for ½ of what is needed
2) Those who need transitional support to be self sufficient- ultimately better for the payor
3) Those that can’t become self-supporting or have a difficult time b/c of age or earning capacity after a long marriage
a. 1/3 of women got no alimony
What are the principles meant to do?
Uniform Marriage and Divorce Act – you shouldn’t award any alimony if you can get the person into a good enough situation with property
Overall View
➢ Woman who was married for only 6 weeks but who contracted a disabling disease might be entitled to a fairly large sum of alimony under the need principle, but little under the contribution principle
1. DIVISION OF PROPERTY
Community property: partnership approach to property division, adopting the contribution principle
Common law: spouses have no statutory right to claim a share of each other’s property upon divorce; courts can “equitably” apportion all property of the spouses, including separately held property, and property acquired before the marriage began
Three property systems to look at
Separate Property Method: who has title to the property; problem is that if you are in a system that the working spouse is the one that actually gets title to property, you have inequity to non-working one who devoted energies to home and family
To curb this, you have a big alimony
Community Property System: 50/50 of everything acquired during marriage; whoever earns it, it all goes into the pot; more receptive to homemaking spouse – keep in mind of not who owns it but who controls it – this could prove to still be inequitable
Equitable Distribution Method: Supposed to figure you are going to pay and divide the property in an equitable way; courts look to who contributed, direct/indirect contribution, how to keep family stable, how did one or the other contribute to harmony, if one helped educate or train the other, market value, tax considerations, emotional value. GOAL – fair distribution and leave each person self-sufficient
Need expert testimony
a. Recognition of Homemaker Services
FERGUSON V. FERGUSON
o Linda Ferguson filed for divorce from Billy Ferguson after 24 years of marriage and tow children, one of whom still resided with his parents
o During the married, Linda had worked both as a homemaker and as a beautician
o The chancellor granted Linda’s request for divorce, awarding her custody of their son, child support, periodic alimony, the marital home and its contents, together with 4 acres of land, debt-free title to be vested in Linda, a lump sum alimony payment along with ½ interest in Billy’s pension plan, stock ownership plan, and savings and security plan
o Billy appealed
o RULE: A spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding
o In this case, the property was not titled solely in Billy’s name bust titled to both Billy and Linda
o Both parties requested an equitable division of their jointly accumulated property
o Through an evolution of case law, the chancellor was within his authority and power to order an equitable division
o However, Linda was divested of her undivided ½ interest in the adjoining 33 acres of jointly owned and accumulated real property, which was awarded to Billy, along with other property
o Thus, the issue of property division is reversed and remanded for consideration in light of the factors determining substantial contribution to the accumulation of that property
Alimony is deductible by payer and taxed by payee
b. Financial Misconduct
SIEGEL V. SIEGEL
o After Mrs. Siegel filed for divorce, Mr. Siegel executed a note for alleged gambling debts to a closely-held corporation of which he was an equal 1/3 shareholder
o When the court denied his application to compel Mrs. Siegel to execute joint income tax returns for the 1998 calendar year, Mr. Siegel forged her signature to the return
o Mrs. Siegel claimed that the gambling debts should be borne by Mr. Siegel alone, and appealed
o RULE: The contribution of each party to the acquisition or dissipation of the material property is to be considered in determining the equitable distribution
o The debt belongs to the gambler, with no offset or credit
o The court is unconvinced of the actuality of the alleged losses, or Mrs. Siegel’s knowledge of them
o Reversed
c. Marital Property: A Step Toward Community Property?
GAULRAPP V. GUALRAPP
o Jane sued for divorce, and an equitable distribution of the total value of the family assets excluding the value of separate gifts was determined as appropriate by the trial court
o David appealed, claiming the trial court erred by treating the gifts each spouse received during marriage as separate property and excluding their value from the marital estate
o RULE: Separate property must initially be included in the marital estate and then guidelines may be applied and the sources of the property considered in making an equitable distribution
o The length of the marriage is relevant to the distribution of gifts and inherited property, and redistribution of gifted property may often be equitable in long-term marriages
o Reversed and remanded
In community property – gifts are kept separate
In equitable distribution – courts will determine what will stay separate by looking at whole package
American Law Institute – Proposals on Gifts
▪ Use a formula based on years of marriage – for each year of the marriage after the 5th, 4% of the value of all separate property held by the spouses at the time of their marriage is treated at dissolution as the spouses marital property; in marriages of 30 or more years duration, all separate property held by the spouses at the time of their marriage is treated as dissolution as marital property
▪ Takes discretion away from judges
▪ Should there be a difference on how we divide things? Short marriage v. Long marriage
▪ Courts are less perceptive on being precise with a brief marriage
d. Brief Marriages
ROSE V. ROSE
o The marriage between Mrs. Rose and Mr. Rose lasted 1 year
o Both parties brought separate assets to the marriage, including their own residences
o They maintained separate bank accounts
o Two months before the marriage, Mr. Rose purchased a trailer
o Shortly after the marriage, Mr. Rose, who had substantial premarital savings, made a down payment on property in Kenai, which the family began using for recreational purposes
o When doing so, they utilized the trailer purchased by Mr. Rose and also utilized a boat and motor purchased by Mr. Rose after the marriage
o In addition, both parties had retirement plans through their employers
o Trial court concluded that the parties were economically not a unit and divided the marital estate such that Mr. Rose would take his property and Mrs. Rose would take hers
o Mrs. Rose appealed
o RULE: In marriages of short duration when there has been no significant commingling of assets, the trial court may treat the property division as an action in the nature of rescission, placing the parties as close as possible to their premarital financial positions
o Ordinarily, after the court determines the property available for distribution, the court is required to proceed with an equitable distribution of that property, starting with the presumption that the most equitable distribution of property is an equal distribution of property
o In the present case, the parties by their own conduct maintained their own separate financial identities and conducted their affairs in the same manner as they did before the marriage
Under these circumstances, the trial court should not have to start with the equal division presumption or undergo to laborious analysis of various factors before concluding that the assets in question was acquired or accrued with Mr. Rose’s separate property, such that at the dissolution of the marriage, that property should be awarded to him
➢ In Musser v. Johnson – financial settlement at the dissolution of a short marriage should aim to restore each spouse to the position he or she enjoyed before the marriage
➢ What constitutes a brief marriage? Some courts have said that marriages of less than 4-6 years in duration
➢ Factors to consider: existence of children (funds being used for children) and the extent of asset commingling
➢ However brief a period of time a marriage may last, ordinarily a court may not eliminate a spouse’s interest in a marital asset
2. ALIMONY
a. Duration
MILLS V. MILLS
o Mr. Mills filed for divorce after 22 years of marriage
o They had both worked in a family business and shared responsibilities in the business
o Mr. Mills was awarded the family business and other property, and Mrs. Mills was awarded some real estate, an equalizing judgment of $180,833 and spousal support of $1500 per month for 4 years
o The wife had requested $2500 for two years and $1500 indefinitely, and appealed
o RULE: The purpose of spousal support is not to equalize the parties’ income but rather to ease the wife’s transition to financial independence
o Wife is relatively young and in good health and has work experience
o They trial court’s award is reasonable and will afford her the necessary time to develop her full economic potential
o Affirmed
➢ Courts generally disfavor permanent spousal awards
➢ The duration of compensatory spousal support awards is usually based on the length of the marriage
➢ ALI proposal – strong link b/t duration of marriage and how much you pay
➢ Ira Ellman has written a lot of theory of alimony – should not be based on need but he does think you should be compensated for marriage related economic losses
HOW DOES THIS FIT IN WITH THE STANDARD OF LIVING? What people really need to survive
b. Role of the Marital Standard of Living
SIMMONS V. SIMMONS
o RULE: reasonable needs of a party seeking a maintenance award are to be measured by the standard of living the party seeking maintenance previously enjoyed during the marriage
o Maintenance is appropriate only if the income from the petitioner is unable to support himself through appropriate employment or is otherwise without sufficient income
o There is no uniform standard for determining reasonable needs and the trial judge must make such determination on a case-by-case basis, taking into account the circumstances of the parties
o Factors to be included: parties’ standard of living before and during marriage, length of the marriage, social position of the spouse, and special needs
o Petitioner submitted a budget of her reasonable needs with total monthly expenses of $1682, her income being $428 per month short of budget
o During the course of the proceedings her food expenses increased $75 per month, on that basis that she must eat out a Chicago’s most expensive restaurants b/c she was alone
o Petitioner also increased her budget for transportation since she now takes a taxi to work
o She claimed expenses of $100 a month for laundry, cleaning and storage ($30 more than while the couple were married) and hospitalization insurance was $6 per month more than her actual expense
o Even after the reduction in such expenses respondent argued these needs unreasonable
o He argued that since petitioner was steadily employed during the marriage and did not give up any educational or employment opportunities to serve the marriage so maintenance was not appropriate
o The test for the propriety of maintenance must consider the style of living to which the spouse has become accustomed
o Reasonable needs are to be based on the standard of living the party seeking maintenance previously enjoyed
o Here although the wife held a prominent position, her earning capacity was nowhere near that of the respondent
o Since maintenance is thus appropriate, the issue becomes how much of the $302 discrepancy he must provide
o Section 504(b) requires the award to be an amount the court deems just after considering the relevant factors
o These include the duration of the marriage, age and physical and emotional condition of parties, standard of living established during marriage, ability of the paying spouse to meet his own needs, financial resources of spouse seeking maintenance to meet her own needs
o Here, the respondent has only $195 per month surplus after meeting his own reasonable needs
o In such cases, the court must apportion the deficit
o Petitioner is entitled to an additional award of $53.50 per month
➢ ALI proposes that spouses who spend a disproportionate amount of time caring for the children born of the marriage should be awarded compensatory spousal payments – child care durational factor
➢ Formula takes into account such factors as the length of the marriage, the age of the child, and the differences between the incomes of the spouses
Have to conscious decision to have more interaction with the children – takes into account how long payee was devoting his time to the child – if the child care factor made them take a less paying job, then they should be compensated
3. WHAT CONSTITUTES PROPERTY?
House, cars, life insurance, 401K, pension plans, etc.
More nontangible items
a. Educational Degrees
POSTEMA V. POSTEMA
o The Postemas were married in 1984, just as Mr. Postema entered law school
o He graduated in 1987, the same year the parties separated
o They later filed for divorce
o In splitting the marital estate, the court valued Mr. Postema’s degree at $80,000 and awarded Mrs. Postema $32,000 as her “share” of the degree
o Parties cross-appealed
o RULE: In a divorce, one spouse’s advanced degree should be taken into account in the property distribution
o The basic goal of property division in a divorce is to promote fairness
o A professional degree is what might be called a concerted family effort; both spouses sacrifice with the expectation that the degree will benefit both members
o To allow the receiving spouse to walk away without the nonreceiving spouse being compensated would be unfair
o Some courts take degrees into account in awarding alimony
o This is conceptually wrong, as alimony is a form of support, and the nonreceiving spouse should be entitled to compensation without regard for whether she needs support
o The better view is to award the nonreceiving spouse the value of her sacrifice towards the degree, less what she has already obtained
o Here, the case must be returned to the trial court because it incorrectly looked to the value of the degree, not the value of Mrs. Postema’s investment in assisting Mr. Postema in earning the degree
o Remanded
➢ This case represents the minority position
➢ Courts in a majority of states have held that educational degrees do not constitute marital property
➢ What kind of things are they giving up
b. Pensions
LAING V. LAING
o When the Laing’s 20 year marriage ended, the trial court awarded Kenneth his nonvested pension, set its present value at $27,000 and awarded Marla offsetting marital assets
o Kenneth challenged the award on the grounds that there was insufficient evidence to support the $27,000 figure, and that Marla’s share should not have been awarded in a lump sum
o RULE: A spouse’s nonvested pension rights are properly characterized as marital property
o The trend is to consider pensions as marital property regardless of whether they have vested
o The contingencies that may prevent the employee spouse from ever collecting her or her nonvested pension should not bar the nonemployee spouse from recovering a share if the pension is in fact paid out
o However, the present value approach used by the trial court was inherently unfair, therefore, the reserved jurisdiction approach is preferable
o The nonvested interest pension should not be considered when the trial court made the initial property division at the time of the divorce
o Once the pension has vested, the trial court can determine which approach to the specific circumstances presented
o On remand, the trial court was directed to investigate the applicability of the Retirement Equity Act of 1984 (REACT), which applied to retirement benefit plans covered by ERISA.
o If Kenneth’s plan was not covered by ERISA, the trial court was directed to retain jurisdiction so that an appropriate division could be made if an when Kenneth’s pension vested
o Reversed and remanded with directions
▪ ERISA will supercede state laws
▪ 1984 amendment applied restriction QUADRO (Qualified Domestic Relations Orders) creates existence of some alternate payee that wasn’t part of pension plan so that if you have plan that qualifies, it would take care of judgment or settlement that relates to child support, alimony or marital property rights so you can pierce through and around the idea that the pension is only paid to payee
▪ In looking at pensions, you give up something to get another asset
MANSELL V. MANSELL – illustrates idea that there may be things that don’t fit in the categories as they are defined – watch what kind of options the employee may have exercised to direct away from something that was attachable
o Major Mansell and Mrs. Mansell had been married for 23 years when their marriage ended in divorce
o At the time of divorce, Major Mansell was receiving Air Force retirement pay and pursuant to a wavier of a portion of that pay, veterans’ disability benefits
o They entered into a property settlement whereby Major Mansell would pay to Mrs. Mansell 50% of his military retirement pay, including that portion waived to receive disability benefits
o He later moved to modify the divorce decree, arguing that the court was precluded by the Former Spouses’ Protection Act from treating that portion of his retirement pay waived to receive disability benefits as community property
o After unsuccessful appeals and petitions in state courts, Major Mansell appealed the denial of his request to modify the divorce decree
o RULE: Trial courts may not treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive veterans’ disability payments
o Former Spouses’ Protection Act specifically provides that the property subject to division under these circumstances is the retiree’s disposable retired or retainer pay
o That term is specifically defined in the Act so as to exclude military retirement pay waived in order to receive veterans’ disability benefits
o The plain and precise language of the Act cannot be overcome by attempting to construe the definitional portions of the Act are merely a garnishment statute
o This is clear from an examination of the substantive nature of the other portions of the Act
o Finally, the legislative history of the Act, being silent as to the reasons for excluding waived retirement pay, leaves one to follow the plain and precise language of the statute, not to second-guess the legislature as to its policy choice
➢ Child support ends at majority but the needs of children might not end at that point due to educational needs
➢ Study in the early 1980s – found that divorce men were more likely to pay car payment than child support payments
➢ When we talk about child support we are not supposed to talk about fault – it is based on NEED and STATUS
➢ Children should not be penalized for what happened b/t the parents
SCHMIDT V. SCHMIDT
o When the Schmidts divorced, they agreed by stipulation that Mrs. Schmidt would have custody of their 3 sons
o Mr. Schmidt later made a motion to modify the child custody and support provisions, requesting custody of the oldest boy, and that all 3 boys be permitted to reside with him on his farm during the summer months, with suitable modification of his child support obligations
o The trial court granted Mr. Schmidt’s custody requests, and his child support was reduced accordingly
o Mrs. Schmidt appealed the custody changes, and Mr. Schmidt appealed the amount of child support
o RULE: Child support obligation shall be established in accordance with the obligor’s net income and number of children affected, unless specific findings permit deviation from these guidelines
o The trial court determined Mr. Schmidt’s child support under the guidelines in the code
o Following the change of custody, Mr. Schmidt was obligated to pay support for two children based on his net monthly income, and Mrs. Schmidt was obligated to pay support for one child based on her net monthly income
o Since her net monthly income exceeded his, her child support obligation for one nearly canceled out his child support obligation for two under the guidelines
o However, the code does not permit deviation from the guidelines absent specific findings
o On remand, the trial court may make additional specific findings which may support deviations from the child support guidelines
o The custody changes are affirmed
➢ All states have guidelines – in order to get federal aid the states had to pass child support guidelines
➢ Schmidt uses guidelines – when can you change things around; what happens when the children moved around between the parents
➢ Should there be an adjustment even though the court ordered something else
➢ Sometimes the guidelines look too rigid – with child support, courts base it on a specific chart and some of it is mechanical
➢ Until 20th Century, most courts only held fathers for child support
➢ States say now that you can look to both parents
➢ Courts will balance b/t the time that is spent with the children and the earning capacity of the different parties
➢ Compute time parenting and then deduct that from the time you were not available b/c of outside work
➢ Nurturing Parent Doctrine: Idea that the parent is doing something else, so the child’s needs are met and it might not be financially. Should nurturing parent doctrine doesn’t apply to support order.
1984 US Office of Child Support Enforcement – Child Support Guidelines
➢ Both parents share legal responsibility for supporting their children with divisional
➢ Take into account what you need to raise a child – subsistence needs
➢ Never leave a $0 amount, you always have to have something that goes to the child
➢ Look to basic needs first
➢ Keep in mind what the status of the child was prior to the divorce and how the child would have lived had there not been a divorce
➢ Doesn’t matter about marital status of the parents at the time of the child’s birth
➢ Should be sexually nondiscriminatory
➢ Shouldn’t do things in such a way that it deters either one of the parents from living their own life; ex. Remarriage or joining labor force
➢ Get both parents involved in upbringing as in joint custody
Most frequently used model is INCOME SHARES MODEL – child should receive same amount of income that he would have received had the divorce not happened
F: Father’s Income / Father’s income + mother’s income
M: Mother income/ Father’s income + mother’s income
Delaware Melson Formula: defines levels of basic or subsistence needs for parents and children; reserve a basic amount for parents which is set aside on which they can live
➢ You never leave the child at $0!!
➢ When income is enough to carry basic needs of parent and child, certain percentages are taken of the portion of the excess need applied to each child
➢ Models can be adjusted
Questions that will be asked
➢ What is the cost of rearing a child at subsistence level? Nutrition, shelter, transportation, and other necessities
➢ What is the cost of rearing a child in households with income above subsistence level?
➢ How do the cost or rearing a child differ as the number of children in a household increases?
➢ How does the cost of rearing a child change as the child becomes older?
➢ Use of intact family spending patterns to determine child support payable to single parent households
➢ As children get older the prices go up
➢ What if there is not enough money to go around?
IN RE MARRIAGE OF BUSH – Example of high income family
o Bush and Turner, both doctors, were married in 1982
o They had one child from that marriage, but they were separated eight days after the child’s birth, and they were never effectively reconciled
o Bush filed for dissolution 2 months later, in December 1984, and received the decree of dissolution of marriage in January 1985, on the grounds of mental cruelty
o As doctors, the salaries of Bush and Turner were quite substantial, with Turner’s salary in the range of approximately $25,000 per month
o In September 1988, the court entered its final order with respect to child support
o Turner was ordered to pay directly to Bush $800 per month for child support
o In addition, the court required Turner to establish a trust fund for his child which consisted in part of temporary child support arrearages and he was further required to contribute 20% of his income (net) to the trust
o Turner challenged the court’s order, contending that the award of child support was excessive, and Bush challenged the order, contending that the trial court abused its discretion by ordering Turner to pay child support arrearages into the trust and further the award of $800 per month was insufficient
o RULE: Even though specific guidelines exist for determining child support awards, the trial court may vary from these guidelines by setting a figure for child support below the guideline amount which dictated by the income of both parents and taking into account the life-style the child would have enjoyed absent the dissolution
o Trial court’s award requiring Turner to pay 20% of his income was excessive and constituted an abuse of discretion
o That amount is more than the average income of most Americans
o Reasons for not adhering to guideline amounts must be specified but exist where, as in the present case, both parents have more than enough income to provide for the child
o The child in the present case has no unmet needs which require such an excessive award
o A large income will not necessarily trigger an extravagant lifestyle for a personal trust fund, and in the present case, constitutes a windfall
o The court must accommodate the reasonable needs of the child with the available means of the parents
MURRAY V. MURRAY
o The Murrays were divorced and the wife was awarded custody of their son
o The marital property was divided between the parties, including unexercised stock options the husband had received as an executive employee at Procter & Gamble
o Since the divorce, the H’s income has increased substantially
o When the W sought to increase the amount of child support, citing the H’s increased income as a significant change, the magistrate judge increased the H’s child support obligation after finding that the value of the stock options should be included in his gross income
o The H appealed, alleging that the unexercised stock options did not constitute potential cash flow and were not to be included in gross income, and that the trial court erred in its method of valuing his unexercised stock options when it arbitrarily chose one date on which the value of the options, without sufficient reason given as to why that method was better than any other
o RULE: Any attempt to determine the current appreciation in value of stock options the imputed income from the options must be the most accurate and equitable method which the court can utilize
o The appreciation in the value of the options is to be included in gross income since it was established at the hearing that the stock options as issue are an integral part of the H’s annual compensation
o The stock options mirror deferred compensation
o After the initial 12 months, the H has complete discretion to exercise the options, so long as he remains an employee of P&G, therefore, he could potentially shield a significant portion of his income from the courts and deprive his children of the standard of living they would otherwise enjoy
o The trial court erred when it treated the stock options in a manner similar to overtime and bonuses
o The best way to value each stock options is to account for the options’ appreciation in value as determined on the grant and exercise dates of the options which fall into the income year at issue
o The trial court’s decision to adopt a date which had no relevant relation to the case and to value the stock options according to this date was an abuse of the trial court’s discretion
Parents can agree to divide the cost of education of the child
SOLOMON V. FINDLEY
o When Solomon and Findley dissolved their marriage, Findley agreed to provide educational funds for their daughter through college or until she reached the age of 25, whichever came first
o The divorce court approved the agreement, and the decree was entered by default because Findley was absent
o Solomon first tried to enforce the decree was entered by default because Findley was absent
o Solomon first tried to enforce the decree by filing an order to show cause, alleging failure to provide the educational funds
o Because their daughter was beyond the age of minority, the divorce court denied the relief requested on the grounds that it lacked jurisdiction
o Solomon then filed a breach of contract action, but the trial court granted Findley’s motion to dismiss, finding that the doctrine of merger applied in the judgment and that Solomon’s claim stemmed from the judgment
o The court of appeals allowed Solomon to pursue the claim for post majority educational support in contract, rather than by enforcement of the dissolution decree
o RULE: A provision for post majority education support does not merge into the dissolution decree, but remains independent and enforceable as a contract claim
o While the states that have addressed this issue have reached different solutions, they have uniformly upheld such agreements for post majority education support
o Of the different approaches used for enforcement, the better approach is that the contract for post majority support should be enforced in a separate contract action
o This is so because the divorce court only has jurisdiction to enforce child support provisions until the child reaches majority
o The court of appeals’ decision is approved, and the case is remanded for proceedings consistent with this opinion
➢ Divorcing parents often negotiate a contract to cover post-secondary education expenses but enforcing them can be difficult
➢ Father agreed to pay to the best of his ability until child turned 25 or college education
➢ Father argues that there is no jurisdiction of the court b/c this was something that was part of childhood responsibility and since the child was a major, he really had no obligation
➢ If it is under contract theory and you have non-payment and you are trying to get damages, who is really the one who loses out? The child – some courts require children be joined into the action b/c parent really doesn’t have the obligation to pay
➢ Some states require for payment beyond majority
➢ Keep in mind – what kinds of things would change the child support payments
▪ Changes in income; whether or not there has been change in income for either parent
• Look at whether or not the changes were beyond the control of a particular person
• Involuntary changes should be taken into account
• Possibility of things going up should be kept in mind
Marital status
a. Changes in Income
GRAHAM V. GRAHAM
o Under a 1982 divorce decree, Mr. Graham was ordered to make alimony and child support payments, along with mortgage and private school tuition payments
o Mr. Graham’s salary was raised from $100,000 a year in 1981 to $185,000 in 1982, and was to increase every year until 1985, when he would be earning $255,000
o The parties could not agree about increasing support payments in light of these salary increases, and Mrs. Graham filed a motion to enforce agreement or in the alternative for increased alimony and child support
o The trial court held that an increase in the noncustodial parent’s income, no matter how great, was, by itself, an insufficient basis upon which to modify a support order
o But finding that the needs of Mrs. Graham and the children had increased, the court raised both the amount of child support and alimony awarded
o RULE: An increase in the noncustodial parent’s ability to pay can, by itself, constitute a material change in circumstances sufficient to justify an increase in support
o A material change in either the parent’s income or in the needs of the children and the other spouse may be the basis for modification of the support order
o By insisting that there could be no increase in support without a commensurate increase in the needs of Mrs. Graham and the children, the trial court effectively nullified the first prong of this standard
o The basic standard for a modification applies to both alimony or child support orders
o Reversed and remanded
b. Cohabitation and Remarriage
D’ASCANIO V. D’ASCANIO
o Following the dissolution of their marriage, Mr. D’Ascanio was to pay $900 per week as alimony to Mrs. D’Ascanio
o A modification agreement was later reached which stated that alimony would be reduced by one half in the event the wife remarried or cohabitated
o When the H later alleged that the W was cohabitating, the court reduced the alimony by only $100 per week
o The H appealed, seeking enforcement of the agreement to decrease the alimony payment by ½
o RULE: Once the initial issue of cohabitation is established, a court must enforce the terms of a modification agreement entered into by the parties and approved by the court
o A deviation from the terms of the modification agreement by the trial court was improper
o Reversed and remanded
c. Subsequent Families
AINSWORTH V. AINSWORTH
o When the Ainsworths divorced in 1986, they stipulated that Reginald would pay child support of $70 per week to Julie, $35 for each of their two children
o He remarried in August of 1987, establishing a new home with his W and her son
o Then Julie filed a motion for modification pursuant to 15 V.S.A. 660, seeking increased support in an amount to be determined under the guidelines mandated by the statute which became effective on April 1, 1987
o Although the trial court decided that Reginald did not have a duty to support his stepson under the statute, it held that a child support order based on the guidelines sought by Julie would be inequitable under 659 and ordered him to pay less than what would be required under the guidelines
o RULE: Expenses for a second family may enter into the determination of child support for the preexisting family, even where the second family consists of a spouse and stepchild
o Under the guideline regulations, a basic support amount for the children is derived from tables based solely on the total gross income of the parents and the number of children
o If the court finds that a child support order based on the guidelines would be inequitable under 659, it may establish support after considering the relevant factors listed in the statute
o Contrary to the finding of the trial court, the statute does create a general obligation of support for stepchildren, but the financial resources of the stepchild’s mother are also relevant
o The findings and conclusions of the trial court are too incomplete and do not specify the reasons for the amount of support awarded or show consideration of the statutory factors
➢ Taking into account you have a new family
➢ Look at need to support a new wife and step-children even if there is no responsibility to do this legally
➢ How should this effect the first family?
▪ Constant battle with what to do – don’t want to curtail someone’s right to marry
▪ Usually they will say that you can’t leave the first kids destitute
➢ If you marry a second time, it could mean more money to you so some courts will take this into account
❖ One area that becomes tricky is custody modification and child support modification: many states have accepted uniform laws in this area that there be some understanding between states so that people moving can’t skip payment
❖ Uniform Interstate Family Support Act (UIFSA)
o Developed to improve prior law concerning enforcement of family support orders
o Aims to cure the problem of conflicting support orders entered by multiple courts, and provides for the exercise of continuing, exclusive jurisdiction by one tribunal over support orders
o Once one court enters a support order, no other court may modify that order for as long as the obligee, obligor, or child for whose benefit the order is entered continues to reside within the jurisdiction of that court unless each party consents in writing to another jurisdiction
❖ By 1998 – 40 states have adopted this
➢ The most useful tool available for arranging custody and financial settlements is a carefully drafted separation agreement
➢ Spouses may agree to sign an agreement in order to reduce their total income tax liability, or to minimize litigation costs
➢ Parties are more likely to comply with a mutually agreed upon solution than one imposed by the court
➢ In families with minor children, judges exercising the state’s parens patraie power are said to have responsibility to determine who should have custody and n what conditions
➢ Today, the tricky stuff is getting you all the stuff that goes with the divorce – alimony, child support, etc.
➢ Problem with trade offs that people make = i.e. get less money if you keep the kids
➢ Alimony is tax deductable to payer
o Lump sum payments or payment over time
o If you are getting lump sum or payment agreed to that is paid over time, then you are sure that this is something that is DUE as opposed to alimony that can fluctuate over time
o If you get lump sum, and you have amount agreed to, what happens if payor dies? Alimony does not survive as a debt so it ends upon death
How hard is it to break a separation agreement?
Look for:
❖ What can you waive for a spouse that you wouldn’t be able to waive for children? You want to make sure they are supported – it is against public policy to waive all child support
❖ Watch for disclosure and fraud
❖ To vitiate a separation agreement is hard b/c you are always going to keep in mind this is an agreement they have made
❖ How does tax credit enter into this
❖ Interesting if court approves a settlement – Wyoming case
Why we should give divorcing spouses broad powers to make their agreement
➢ Substantial savings through adjudication
➢ Financial cost of litigation is minimized
➢ Pain of formal adversary proceeding is avoided
➢ Children benefit when parents agree on custodial arrangements
➢ A negotiated agreement allows the parties to avoid the risks and uncertainties of litigation
➢ Save time and allow each spouse to proceed with his or her life
➢ Consensual solution is by definition more likely to be consistent with the preferences of each spouse
Legal Doctrine separates the potential consequences of divorce into 4 distributional questions:
1. How should the couple’s property – the stock of existing wealth owned separately or together – be divided? (marital property law)
2. What ongoing claims should each spouse have on the future earnings of the other (alimony law)
3. What on-going claims should a child have for a share of the earnings or wealth of each of his parents? (child-support law) and
4. How should the responsibilities and opportunities of child rearing be divided in the future? (child-custody and visitation law)
ELEMENTS OF THE BARGAIN
a. Alimony and Child Support
i. Custodial spouse is not required to keep track of how child support money is spent
ii. Custodial spouse and the child will generally share housing, this makes it impossible to provide high quality housing for the child without also providing it for the custodial spouse
b. Lump-Sum Payments v. Payments over time
CUSTODY
➢ One parent may be entirely responsible for the child all the time, with the other spouse spending no time with the child
➢ Divorcing parents may agree to share child-rearing responsibilities equally after divorce through joint custody
THE RELATIONSHIP OF CUSTODY AND MONEY
➢ Each parent may be willing to exchange custodial rights and obligations for income or wealth
➢ In a suit brought to collect overdue support payments, a father cannot defend on the ground that his ex-wife did not permit the visitation
➢ Nor have courts permitted a custodial parent to cut off visitation because of a failure to pay support
STRATEGIC BEHAVIOR
Opportunities for strategic behavior exist because the parties often will not know with certainty
1. the other side’s true preferences with regard to the allocational outcomes; and
2. the other spouse’s preferences or attitudes towards risk; and
3. what the outcome in court will be, or even what the actual odds in court are
How do the parties and their representatives actually behave during the process?
1. Strategic Model – characterize the process as “a relatively norm-free process centered on the transmutation of underlying bargaining strength into agreement by the exercise of power, horse-trading, threat and bluff”
2. Norm-Centered Model, which would characterize the process by elements normally associated with adjudication – the parties and their representatives would invoke rules, cite precedents, and engage in reasoned elaboration
Why divorce cases are litigated
1. Spite
2. Distaste for Negotiation
3. Calling the bluff – the breakdown of negotiations
4. Uncertainty and Risk Preferences
5. No Middle Ground
Modification and Merger
DAVIS V. DAVIS
o The Davises were married in 1963 and divorced in 1968
o Prior to the divorce, they drew up a separation agreement whereby Mr. Davis was to pay $250 per month alimony for one year and $150 child support
o Mr. Davis then brought a divorce action, requesting that the terms of the agreement be incorporated
o While not finding that the agreement was reached through fraud or duress, the court found the terms improper and awarded Mrs. Davis $250 per month permanent alimony
o Mr. Davis appealed
o RULE: A separation agreement providing a specified spousal support amount will not be modified absent fraud or duress
o Parties should be encouraged to work out voluntary settlements, and judicial after-the-fact second-guessing works against this policy
o Agreements properly reached will not be disturbed, and the mere fact that one party drove a poor bargain is insufficient to set the agreement aside
o Here, no evidence of duress or fraud was presented, so the agreement will not be modified
o Reversed
➢ Alimony provisions are not modifiable in most jurisdictions if the agreement is designed to survive the divorce decree
OEDEKOVEN V. OEDEKOVEN
o Prior to obtaining a divorce, Mr. and Mrs. Oedekoven entered into a settlement agreement providing for certain support to be paid to Mrs. Oedekoven
o The agreement was incorporated in the divorce decree, but the decree contained no order effecting payment
o When Mr. Oedekoven failed to pay, Mrs. Oedekoven brought a contempt action
o Mr. Oedekoven was held in contempt and appealed
o RULE: A person cannot be held in contempt for failure to pay support monies as provided in the decree unless the decree contains an order to pay
o Mere approval of a settlement is not an order to pay, and therefore no order is disobeyed by not paying
o There is, therefore, no contempt committed by the failure to pay
o The aggrieved party is limited to an action for specific performance or damages for breach of contract
PORTLOCK V. PORTLOCK
o The Portlocks decided to separate and executed an agreement requiring the marital home to be placed in Mrs. Portlock’s name and providing for support payments by Mr. Portlock
o Mr. Portlock refused to convey his interest in the house, and Mrs. Portlock sued for divorce, specific performance of the agreement, and an increase in support payments
o The trial court granted the divorce and specific performance
o However, it held that it could not increase support beyond that called for in the agreement as no unforeseen circumstances had arisen
o Mrs. Portlock appealed
o RULE: Courts may increase support payments beyond that agreed upon if they feel the original amount was inadequate or if unforeseen circumstances have risen necessitating a change
o Courts must insure that children are properly supported
o Thus, if the original agreement failed to adequately provide support, such can be increased without unforeseΔen circumstances arising
o This case must be remanded for the findings in this regard
GRIFFIN V. GRIFFIN
o The Griffins entered into a custody agreement whereby Mrs. Griffin would have custody, yet child-rearing decisions, such as education, were to be jointly made
o The agreement provided no mechanism for dealing with a situation in which an agreement could be reached
o Mrs. Griffin decided to place the child in a religious school, and Mr. Griffin petitioned the court to determine a school to which to sent the child due to the disagreement
o The court found that the agreement did not change statutory law, which held that in the absence of agreement, the custodial parent has sole discretion in child-rearing
o The Court of Appeals reversed the district court order and Mrs. Griffin appealed
o RULE: If a custody agreement providing for joint child-rearing decisions does not provide a dispute-resolution provision, the custodial parent has the power to unilaterally make the decision
o In this case, the custody agreement failed to specify a dispute-resolution formula
o Thus, no agreement was made on this point, and the statute was not displaced
o Therefore, the custodial’s parent discretion is enforceable
❖ Children’s needs will change as the years go by and look at possibility of changing child support
❖ As long as you have adequate child support arrangement in voluntary separation agreement, you are generally not going to have that altered by the court, however, if you show a change of circumstances where it affects the material welfare of the child, then you can modify the arrangements
❖ Who makes the decision on the selection of schools?
▪ If you say custodial parent makes selection and they want private school, the custodial parent is also asking for child support then the non-custodial parent will be paying both child support and tuition
▪ In Griffin, the custodial parent will choose where the child will go to school; to make joint selection is unenforceable b/c you have to put the buck somewhere; the Court can’t make the parents agree
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