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					Family Law

 Chapter 9
                  Family Law
• Creature of state law
• Marriage
  – Legal union between husband and wife
  – Can minors get married?
• Kissing Cousins
  – Depends on the state
• Common law marriage
  – Have to eligible for legal marriage
  – Must intend and so create a relationship that looks
    like a marriage
        More about marriage
• Can contract to pool money and share
  property in some states such as California
  – Cannot contract to exchange sexual favors
• Domestic Partnerships
  – Unmarried couples who live together and
    seek economic and noneconomic benefits
    available to married couples
• Hawaii opens the door to gay marriage
  – Full, Faith and Credit/ Vermont’s civil unions
        Marriage Obligations
• Mutual obligation of support
  – May apply to adult children who have indigent
    parents
  – What happens if X gets married to Y. X
    becomes disabled?
• Property Rights
  – Community Property
     • Combines all property that the spouses acquire
       during marriage
    Property Rights Continued
• Separate property
  – Usually obtained before marriage
  – Or after marriage if by agreement it is to be
    deemed separate
• What about gifts of marital property?
  – O.k. as long as the gift was not waste or
    fraudulent
  – Dissipation?? Pg. 411
                    Lawsuits
• Creditors
  – Most states only allow creditors to reach separate
    property of indebted spouse
  – Minority of states allow creditors to go after
    community property
  – Often certain property is exempt
• Lawsuits between spouses
  – Spousal immunity – cannot sue your spouse unless
    its for a divorce
  – Is this true today???
                   Prenatal Law
• Abortion
  – Restrictions
     • States may regulate after first trimester
     • States may require disclosure materials
     • States may require a minor to notify a parent
• Paternity
  – Legitimate = right to support
  – Illegitimate = no right to support
  – Presumption of Paternity must be refuted by
    adjudication
                  Paternity
• Presumption of paternity created by
  – Marriage after child is born
  – Marriage ended within 300 day period prior to
    birth
  – Father agrees to be named the father
  – Maury Povich
• Supreme Court says no discriminating
  against illegitimate children
  – Illegitimate children can inherit
   Surrogate-Mother Contracts
• Surrogate Mother carries baby of
  biological father and then biological
  father’s wife adopts
• Gestational surrogacy – fertilized egg is
  placed in surrogate
• Baby M – 419 – cannot contract for
  custody rights in NJ
• Who gets frozen fertilized eggs upon
  divorce?
 Genetic Engineering and Cloning
• Genetic advancements have made it possible to
  grow human body parts on mice and pigs
• Scientists have even made half human half
  animal cell structures called chimera
  – What are the benefits?
  – Drawbacks?
• Eugenics = improving human genetics through
  mating – used by Hitler
• Cloning – Congress currently is trying to outlaw
  human cloning
    State Protection of Minors
• Historically there was parental immunity
  – No suing mom and dad
• Some states hold parents responsible for
  the actions of their children
• Generally have a duty to support child until
  he/she is of the age of majority
  – Some states provide for college funding in
    divorce settlements
  Protection from your Parents
• Emancipation
  – Divorcing your parents
  – Relinquishes their control but also their duties
  – May occur automatically by marriage
• Juvenile courts
  – Juveniles get mainly the same constitutional rights as
    adults
  – Juveniles may become wards of the state
  – Serious crimes may result in the juvenile being tried
    as an adult
               Abuse of Children
• Often domestic violence or sexual abuse goes
  unreported
• Problem occurs when child has to testify
   – Courts may allow for hearsay
       • Taped testimony or testimony repeated by health professionals
       • Why do we care about hearsay in these cases?
       • Do you have to have a face to face confrontation under the sixth
         amendment?
• Maternal abuse – different crimes in different states
   – Some states make it a crime to abuse alcohol while pregnant
   – Roe v. Wade cause a lot of uncertainty with respect to prenatal
     abuse.
   – Extra Credit: Scott Peterson Law
           Getting Unhitched
• Divorce: the termination of a marriage by legal
  action, requiring a petition or complaint for
  divorce by one party (findlaw)
• In the past you had to have a guilty spouse but
  now no-fault divorce are in vogue
  – Still generally need to show a breakdown of marriage
    and physical seperation
• What are the policy reasons for a nofault
  regime? What are the policy reasons for not
  having a nofault regime?
Legal Issues Arising From Marriage
• Adultery is still a crime in some states
   – Does not apply to gay affairs
• Alienation of affection: usually involves the
  withdrawal of affection (sex)
• Covenant Marriages
   – some states have covenant marriages that require
     premarriage counseling and waiting periods for
     divorce.
• Cost for divorce? At least 10k apiece. 25k to
  35k if custody battle starts.
                   Annulment
• Annulment: a declaration by a court that a
  marriage never existed because of some defect
  at the time of marriage
  –   Kissing cousins
  –   Mental incapacity
  –   Intoxication
  –   Fraud – lying about your age?
• Separation from bed and board. No legal
  divorce but spouses live apart and divide up
  their assets.
                 Maintenance
• Maintenance (aka alimony or support) is ordered
  by a court in a dissolution/divorce
  – Permanent alimony – till death do us part
  – Rehabilitative alimony – till you’re back on your feet
  – Can a woman be forced to pay alimony?
• Lawyers often fumble when it comes to a divorce
  settlement b/c the lawyer ignores tax
  consequences.
• Changing circumstances may prompt a court to
  modify the payments.
              Property Division
• Lawyers can construct an agreement
   – If the two parties cannot agree then the judge
     determines the settlement
• Doctrine of equitable distribution awards a
  marital interest in all assets that were acquired
  during marriage as marital property
   – Note that in a community property state you
     automatically have a right to one half of all assets
• Professional degrees may or may not be
  deemed property subject to distribution
               More settlements
• Courts may award
  – Rehabilitative alimony
  – Compensatory alimony
• Child Support
  – Not tax deductible
  – Factors
     •   Child’s necessities
     •   Standard of living enjoyed by parents
     •   Financial status and capability of each parent
     •   Age and educational needs
  – Back payments do not disappear. Impossible to
    shed.
                  Custody
– Best interests of the child
   • Child’s and parent’s wishes
   • Child’s adjustment to home, school, &
     environment.
   • Mental well being of all involved.
                 Prenups
• Premarital agreements are binding
  contracts that define rights and obligations
  in relation to a contemplated marriage.
  – Do they need to be in writing?
  – Important in community property states.
  – Might be void if the agreement adversely
    affects the rights of minor children
  – Cannot be unconscionable

				
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