Family Law Oultline
1. When fed. gov’t infringes on marriage: a. Zablocki v. Redhail: i. Marriage = fundamental right ii. Strict scrutiny = std. of review if there’s “significant interference” iii. Is there significant state interest in ends? iv. Are the means significantly tailored to meet ends? 2. What conditions can a state impose on marriage? a. Formalities i. Licensing and Solemnization req’d in every state 1. purpose of license = screening; make sure spouse not married to anyone else; make sure male and female, etc. ii. What if you don’t have a license but marriage was solemnized and no probs (male/female, etc)? Still considered legally married b/c no reason to deny 1. “Directory” = mere fact that you don’t have license ok if other req’ments met iii. Solemnization – purpose? Done by religious/civil officers 1. what if officer was not qualified to do solemnization? a. If both spouses didn’t know that officer was not qualified, then marriage is valid; b. but if both knew officer not qualified, then marriage invalid b/c they didn’t have intent to be legally married. c. *if one person knows and other doesn’t, then ok b/c if bad party knew it was invalid, he loses; it’s valid b. Substantive 3. Common Law Marriage = alternative to licensing and solemnization a. Recognized in 10 states; wife and husband then and there exchange words of present agreement – “I take you as my husband/wife” b. PA statute has abolished common law marriages after Jan. 1, 2005 c. **Can’t be substitute for SUBSTANTIVE req’ments of marriage i. *common law marriage is only good for meeting procedural req. and it’s only as valid as licensing and solemnization would be 1. so even if common law marriage req. met, no marriage if substantive parts not met like male/female; etc. d. *ELEMENTS of Common Law Marriage: (in PA before 2005) p. 99 i. Staudenmayer: Timeline: 1. 1976 – common law marriage acc. to wife 2. 1982 – accident and damages/$ 3. December 1984 – civil ceremony – husband’s position ii. Elements = exchange of words in present tense w/ intention that thereby creates a relationship of husband and wife; no req’ment on how long you live together 1. “I take you as my husband/wife”
2. H and W never said this to each other at specific point in time before 1984 3. What if in 1982, H said, “will you marry me?” and W said, “yes, I will” no good b/c it’s future tense; not present 4. in PA courts: less emphasis on magic words; must simply express intent; courts have gotten more liberal iii. In Staudenmayer/PA, there’s rebuttable presumption of common law marriage even if no exchange of present words if: 1. constant cohabitation 2. reputation of marriage iv. but wife still lost despite being able to show this presumption 1. when both parties are dead, you can use presumption 2. can’t use presumption if wife able to testify and can’t show exchange of present words 3. “dead man’s statute”: a living person cannot testify to conversations w/ dead person if it’s against interest of estate of dead person – protects against fraud a. so here, wife unable to testify on exchange of words w/ husband, so she CAN use presumption v. In states OTHER than PA, they require present exchange of words AND cohabitation AND reputation and presumption not restricted like above 3 cagtegories. Elements of Common Law Marriage in PA: 1) exchange of “present words” 2) presumption of legality only applies if no party is able to testify on present words a. 3 possibilities/hypos: i. Divorce – wife does not satisfactorily testify to exchanging present words; so can’t use presumption b/c she was avail to prove but couldn’t ii. Estate – wife dies intestate (no will) – husband say I’m entitled to my share – he can use presumption b/c of “dead man’s statute” iii. Both parties dead; 20 yrs later – inheritance issue and question arises on whether common law marriage existed; person who says there was common law marriage CAN use presumption b/c no party to marriage is avail to testify on present intent Elements in Non-PA States: 1) exchange of present words 2) cohabitation & reputation 3) Also, gives presumption like in PA? – cohabitation and reputation can be evidence of common law marriage? Objections to Common Law Marriage: reason to abolish --lots of ways to commit fraud thru this device; incentive to false testimony --plus, this device is outdated; now ppl can get access to court/priest
Argument FOR Common Law Marriage: --poorer ppl will assume it exists and regard themselves as married w/out going thru formalities --serves as a curative device No req’ment of waiting period b/w license and solemnization; no residential requirement – ppl getting married on ship – just have to physically be there Hypo: Man and W live in CO in 1980 – common law married; then they move to NJ in 2000 and want divorce; one party says no formal marriage but other party says common law marriage; NJ does not recognize common law marriage entered into in NJ. o Argument for Common Law Marriage in NJ: it was valid in CO so it should be recognized in NJ as well Validity of the marriage is determined by the law of the state with the “most significant relationship” to the spouses and marriage = Restatement law If marriage was created in common law marriage state, it will be recognized in all other states unless it seriously offends policy of other state What about same sex marriage couple moving from MA (where legal) to PA – no recognition req’d b/c strongly offends public policy of PA o No “full faith and credit” clause applicable to marriage Circle case: Renshaw v. Heckler o Married couple lives in NY 20 yrs but regularly visits PA o Husband dies and wife says I’m common law wife under NY law o Issue: does occasional overnight stay in PA qualify as common law marriage in PA? o Start in non-common law marriage state – go to C/L/M state – and return to non-CLM state **Ask was there a CLM in the CLM state of PA here? **KNOW Conflict of Laws Principle – will a non-CLM state recognize CLM if done in CLM state – yes if ok w/ its policy o Hypo: couple gets clm in one day stay in PA and returns to NJ; NJ can deny CLM on basis that one day stay CLM is against NJ policy o KNOW Straight-line case (from CO to PA) v. Circle case Successive Marriages in order for there to be a valid marriage- each party must be free to marry if one of the parties has an existing marriage that has not been terminated, the second marriage is void Hypo: husband marries wife 1 husband marries wife 2
wife 2’s marriage is void SUBSTANTIVE REQUIREMENTS for Marriage: 1.) Each party must be free to marry if either party has existing marriage, then 2nd marriage is VOID --void = marriage is as if it never existed so don’t need annulment --no economic rights following a void marriage --anyone w/ legal interest can attack it Hypo: H – W1, 1990 H – W2 – 1998, marriage w/ W2 is VOID – no rts for W2 “Removal of impediment” to invalid marriage = like if W1 dies in 2001, then W2 marriage no valid **applies if state is a common law state 1) If marriage is void when made, and impediment is removed, and parties are living together, and one party has bonified belief of validity at time marriage created marriage valid if other conditions present 2) **there’s a presumption that the last marriage in a chain of marriages is the valid one – but this undercuts hypo where 2nd marriage void a. Hypo: H marries W1 1990 – CA i. H marries W2 1998 – CA ii. H dies in 2003 1. if at time of 2nd marriage, 1st marriage still exists, then 2nd one void (1st hypo) 2. **there’s rebuttable presumption that it is the 2nd marriage that is the valid one; presume that 1st marriage was terminated; if it’s clear that marriages were bigamous then clearly 2nd one void a. How can W1 rebut presumption that her marriage was terminated? Say that H lived in CA the whole time and no divorce papers filed in CA b. What if H married her in CA but then died in NJ – much harder b/c he could have filed for divorce anywhere, even if not in CA or NJ c. Old burden used to be high std – C&C evd of no termination; d. New burden = prep. of evid - lighter --once a common law marriage exists, it is a marriage for all purposes – no diff in economic rts b/w common law marriage divorce and licensed marriage divorce How do you ban polygamy under strict scrutiny std. if marriage considered a fundamental right? the fundamental right to marriage depends upon a TYPE of marriage that is deeply rooted in our social structure – rt to marry is rt to monogamous marriage
this arg. applicable to same sex marriage – the rt to marry the same sex is not the same as the fundamental right to marry opposite sex Can easily ban polygamy under rational basis review – b/c there’s rational reason for state to ban it – economic arg’s Chandler v. Chandler: issue = which wife is widow for purposes of worker’s comp on H’s death Fred married N then she died Fred married Eliza – 1973 – married her while married to N Fred married Mary – 1985 Elizabeth’s arg: that E had common law marriage w/ H beginning in 73 once impediment removed thru death of 1st wife, making subsequent marriage to M invalid held, presumption is strong that Mary’s the last marriage is still valid and E. Didn’t strongly enough rebut it All states prohibit & VOID marriages b/w ppl w/ certain blood lines – consanguinity Outlawed marital rel’s = parent-child, grandparent-child, uncle-niece (except Jewish) --anyone can attack validity of marriage if they have valid standing (heir to estate) **Even if a state outlaws a marital relationship – it may recognize it if it was legally done in another state and it doesn’t offend its own state public policy --ex. NY recognized uncle-niece marriage that was valid in RI b/c of Jewish law Is marriage an evasionary marriage? Where couple specifically goes to another state to get married legally and then returns to home state that didn’t recognize its marriage (ex. NY couple went to RI specifically to get married there; evading NY restriction) --Evasionary factor strengthens arg that NY public policy doesn’t recognize RI marriage b/w uncle-niece – but this factor is not dispositive --but some states make evasionary marriages void – see p. 129 – Ill. Statute --some states ban adoptive relationships - affinity (adopted siblings marrying) – this could also be challenged under strict scrutiny as well as ban on 1st cousins in ½ states Substantive Requirements for Marriage: 1.) Neither party can have pre-existing marriage 2.) Can’t be related thru prohibited blood ties 3.) Age Requirements (p. 130) – minimum age = 18 – pretty much universal --if you’re under 18, you can still get married w/ parental consent or even w/ judicial consent as an alternative --below 16, can’t marry b/c not considered to have mental capacity 4.) **Consent to Marriage = fundamental element of valid marriage
--test to see if one has mental capacity: did person understand the nature of marriage and the rights and obligations of marriage?? = low-level test if consent is obtained by fraud, then it’s not a valid consent – Fraud: derives from consent reqment b/c if you were defrauded, you didn’t voluntarily consent VJS v. MJB: --H and W agreed they would not have kids; but then H wanted to have kids --it’s ok to change your mind later to want to have kids; but you can’t lie about it from beginning that you don’t want kids a court can annul a marriage where consent is obtained by fraud it is voidable by the defrauded party only!– here it’s the wife whose defrauded --but husband who defrauded, can’t get annulment the fraud must go to the essentials of marriage! Do case-by-case analysis --here, it was essential to marriage that there would be no kids --here, fraud b/c H knew AT THE TIME of agreement that he did want kids --doesn’t violate public pol to annul marriage when kids not wanted ”essentials” = case-by-case analysis – go by party’s perspective – new case law --older case law: essentials = ability or willingness to have sex; or ability or willingness to bear children; so essentials that fraud can go to is limited to these 4 Haacke v. Glenn --W married H, who was convicted felon but he didn’t tell her --older case law would not find that fraud went to essentials of marriage --but under new case law, look at essentials of marriage by applying subjective analysis to particular marriage – so annulment granted here **Difference b/w annulment and divorce?? Annulment = marriage was never valid; never existed – clear up record; **no economic rights w/ an annulment action but a lot of states do permit economic rts **voidable but not void = a marriage that’s valid unless and until it is challenged; can be challenged by defrauded party only; voidable means you must bring annulment action to invalidate it; but an invalid marriage doesn’t require annulment to cancel; just annul to clear record ex. of Renee – if she learns of voiding fact and still lives w/ husband for long time, can’t later on bring annulment action = rule of confirmation – when defrauded party learns of truth and spouses still live together for long time, then marriage is confirmed and can’t be annulled. = Ratification/Confirmation --ex. if consent obtained by duress (=threat of force) = grounds for annulment --but if party lived together after duress removed (H takes away gun) then marriage confirmed; can’t get annulment limited purpose marriage – another ex. of marriage where no true consent
--ex. couple marries to give child name of father; then father argues he didn’t consent to be married long-term can’t consent to be married for only limited purpose; so if you consent to be married – even for ltd. purpose – you’re married for good; no annulment --ex. immigration marriage – marry spouse to get citizenship – then, is their marriage valid? Yes under state law for state purpose like getting workers’ comp for spouse’s death! but, under federal law, this marriage is no good, b/c test is, “did the parties intend to have a life together?” doesn’t depend on state law Same-Sex Marriage: p. 139 Is an opposite-sex req’ment const’l under the US Const? main issue = what is std. of review? whether there’s fundamental right The right to marry is fundamental right the ban significantly interferes w/ this fundamental right (Zablocki) strict scrutiny – compelling state interest + narrowly tailored Opposite-Sex reqment would NEVER pass Strict Scrutiny: Possible “Compelling Interests” for Opp-Sex Req.: 1.) protection of children – better environment under H and W you can argue this is a “compelling state interest” Is statute Narrowly Tailored to achieve that State Purpose? --are there studies showing children are healthier in opp-sex environment? --state can’t show clear, definitive studies --most states allow same-sex couples to adopt so this goes against argument that children are not safe w/ same-sex parents 2.) primary purpose in marriage is procreation fails strict scrutiny b/c if heterosexual couples who can’t have children are allowed to marry, then why can’t homosexual couples get married w/out kids 3.) don’t want to trivialize or destroy institution of marriage: but permitting same sex couples to marry won’t prevent marriage of opp sex couples?????? 4.) same sex marriage is immoral – it’s dubious to use morality as arg. Lawrence v. TX – overturned TX law that banned private homosexual acts But right to marry is not seen as fundamental right in same-sex marriage case – to be a fundamental right, it must be deeply rooted in our history – so if not fundamental right then no strict scrutiny so bans upheld in state courts So under rational review, if there’s a rational basis for statute, then ok; don’t need studies –just say that a legis could rationally rely on any good study ban easily upheld Mass ct in Goodridge – said we don’t have to decide whether same sex marriage is fundamental right b/c ban fails under rational review --applied rat’l relationship w/ bite/intermediate review
no state has said that SSM is fundamental right --response to apply strict scrutiny: just b/c a fundamental right has never been extended before doesn’t mean that they don’t have that right rely on Loving v. VA – pl was previously denied fund rt to marry different race and was extended fund rt so why not extend it here in SSM? ***KNOW FOR EXAM: Const’l Anal: Result is that ban on same sex marriage const’l under rat’l review 1.) If right to marry same sex is fundamental, must pass Strict Scrutiny Know 4 rationales for banning same sex marriage – see above 2.) Right to marry same sex is deemed not to be a fundamental right! even Goodridge (Mass case) used rat’l basis; not fund right 3.) If it’s not a fundamental right, then opp-sex req’ment is const’l if it passes the rational rel. test – very deferential to law/gov’t – is there a legit state int served? And could legis rationally believe that state interest is served? every state except Mass has said opp-sex req’ment ok under rat’l basis Other Const’l Bases for Arguing for Same-Sex Marriage: Same-sex couples are a Suspect Class – so subject to Strict Scrutiny o The one class that clearly suspect is race Can’t discriminate based on Sex/Gender o Counter-arg: not just men or women discriminated, b/c both are banned from marrying same sex Counter-arg: but it really is based on sex b/c sex is basis of ban --Recognition Issues: --generally, you don’t have to be domiciled in a state to get married there --*But Mass has old law that if persons are domiciled out of state and they come to Mass to get married there, but law of their state would prohibit their marriage, then Mass won’t marry that couple --What if married same sex couple domiciled in Mass moves out of state to PA? --conflict of law rule: marriage of one state will be recognized elsewhere unless strong public policy would be offended – so PA would not recognize --under full fait and credit cl., marriage license not considered a public record, so full faith and credit not even an issue --Note 4: many foreign countries recognize same-sex marriages – Canada, Spain, Netherlands and Americans go there to get around Mass rule --do states have to recognize these foreign marriages? Yes, unless public policy of state violated = IL of comity --Note 3: Civil Unions – only in VT --Vermont SCt said it’s unconst’l to deny to same-sex couples all the benefits given to opp-sex married couples --so ct gave legislature 2 choices: adopt law giving same sex couples all the rights of marriage OR ct would declare opp-sex req’ment unconst’l
VT adopted civil unions for same-sex couples – got all rts of marriage --issue – ppl from out of state get civil union in VT, but then can’t get divorced in other states if marriage not recognized to begin with --Some states have statutes forbidding same-sex marriages and civil unions --like in VA – what if same sex couple has contract – enforceable? --Note 9: marriage b/w man and man-to-female transsexual; man dies intestate but had son – fight b/w son and trans over estate --2 views: Trans not fighting opp-sex req’ment; trying to establish that he was female and there was always opp-sex marriage what is sex of person after surgery? 1) look only at sex of person at time of birth (don’t look at surgery) – prevalent view 2) NJ ct said to look at sex of person at time of their marriage – does psychological identity coincide w/ physical identity? – unique view --must assume no fraud in these cases – if trans had defrauded husband, there would be basis for annulment – sex goes to essentials of marriage Ch. 7: Marital Relationship Consequences and Attributes While marriage still exists (not abt divorce) 1. Enforceability of K’s b/w H and W made while they’re married and not relating to divorce or separation: a. Commercial K’s made during marriage are enforceable; ex. K abt their business together - % of their ownership, etc. b. Any other K’s not commercial in nature are rare and complicated 2. Duty of Support – support while parties are married and before divorce a. Spouses have a duty to support other spouse where other spouse is needy d. **As far as an action of support is concerned, ct won’t allow one spouse to sue another spouse for support while they’re still living together; but if spouses still married but separated, then they can sue; rationale = don’t disrupt family harmony and leave courts out of it = Noninterference Rule --Only Exception: if life/health of needy spouse is in danger, then you can grant support even if H and W living together 1. Noninterference rule if together 2. If separated, can have support action a. Support Order = give flat amt of $ but not itemized on what to spend on applies from date of filing for support order but not before that $ determined by verbal formula – just look at needs of needy party/std. of living and just come up w/ amt the fault of needy spouse is no longer a factor [PA formula is 30% of spouse’s income]
b. Common Law Necessaries Doctrine – (alternative to support order) – whether spouses living together or not is Irrelevant; if a creditor supplies a necessary to WIFE for use of her or children (like toilet), then creditor can sue Husband and wife doesn’t have to pay gender specific Defenses to Necessaries Doctrine: if H gave W $ to spend on plumbing and she spent it on s/t else, then creditor can’t sue H if needy spouse guilty of fault, can’t use doctrine Elements: wife must show she’s needy, hasn’t been given $, and is not at fault issue of whether necessaries doctrine is const’l b/c it’s just for wives so some states have struck it or made it gender-neutral 3. Names in Family –Today, wife can have whatever name she wants; no per se change of a woman’s name upon marriage --in divorce – issue of wife wanting to change her name back to maiden name – ok; common law: you can change ur name to whatever you want as long as not fraudulent --issues: 2 women in same-sex marriage – 1 women wants to hyphenate her name w/ her partner’s name – allowed to do so --man gets sex-change – wants to change name to female name – it’s argued that this is fraudulent b/c it would make ppl think that male was born female – Pa SCt – allowed name change; held no fraud 4. Property Rights (p. 614) COMMUNITY PROP NOT ON EXAM A. Community Property B. Common Law System – each spouse can acquire prop to exclusion of other spouse DURING marriage – but equitably split upon divorce & death: 1. Divorce: a. under old law (EXTINCT) – each spouse can keep own prop and whatever was jointly owned is split equally this was unfair to women b/c men earned most of the $ in their name b. **Equitable Property Division – at divorce, the court can divide any prop defined by statute – prop acquired during marriage – equitably no matter who owned it so court can give H an equitable share of W’s 150K 2. Death: if wealthy spouse dies first (no divorce), and she leaves all her 150K to her sister in will, what are rights of H? --surviving spouse can elect against the will, meaning spouse will take n/t under will but will take statutory share in 150K What happens if W puts her 150K in joint account w/ H? H has joint interest in $ = gift to H H buys expensive antique furniture and then dies, leaving it to sister; who owns furniture? W or sister? W’s claim – prop was jointly owned b/c he gave her a gift by putting furniture in house for both their use. And furniture isn’t all of H’s for him to leave to his sister W has ½ interest this applies to prop not titled in any name (a car has title)
5. Marital Torts: Marital Immunity = absolute ban against one spouse suing another --EXTINCT! In most states; was meant to protect family harmony --So now W can sue H in car accident but couldn’t under old spousal immunity --Now can sue in assault and battery cases --negligent transmission of sexual disease – if one party should’ve known they had disease and didn’t tell; they’re liable 1.) Intentional Infliction of Emotional Distress – based on conduct during marriage --Elements = int’l conduct, extreme & outrageous, severe emotional distress --but courts don’t want to get too involved in marriage + inconsistent w/ no-fault divorce in which you can’t say what the cause of the divorce was so lots of courts don’t recognize Int’l Infl of Em Distress in marriages --some courts do recognize tort, but require high level of severity 2.) Negligent Impairment of Consortium – now both H and W can bring this claim --when spouse is injured, other spouse can sue for loss of companionship, etc. w/ injured spouse 3.) Criminal Conversation – old common law: defendant had sex w/ H’s wife; W’s consent didn’t matter and state of marriage didn’t matter; if D had sex w/ W, then H could sue D; many states have abolished this tort --theory was to protect marital relationship and allow recovery for injured H --why is this tort wrong? It’s inconsistent w/ freedom of choice of who you sleep w/ and individual responsibility and modern notion of sexual conduct 4.) Alienation of Affections – wrongful conduct by D w/ pl’s spouse; where D causes spouse to stop loving other spouse – this tort is in more states than criminal conversation --not just sexual conduct w/ spouse; can include ppl who advise spouse to break up marriage; conduct must be wrongful and causes alienation of affections 6. Family Violence: --New Development: civil proceedings give victim a protective order --Protection from Abuse Order (PFA) (b/c crim law lets H go after jail time) Felton v. Felton: Protective Orders 1.) Ex parte proceeding – one party is absent --purpose = to give immediate relief thru protection order 2.) Definition: there must be acts defined by statute that permit court to issue order --ex. danger of domestic violence States vary on threshold level of conduct --ex. Ohio = gives weaker protection, restrictive compared to PA --act = attempting to cause bodily harm or placing another person in fear of imminent danger by threat of force PA = placing another in reasonable fear of imminent bodily injury – don’t need to fear “threat of force” like in Ohio. + pattern of conduct that places someone in reasonable fear of bodily injury but need not be imminent! Ex. stalking – injury not imminent but fear injury at some point 3.) Scope of Order – PA – if both parties rent or own residence, offender can be kicked out; and even if defendant is sole owner, he can still be kicked out if he owes support to
victim or dependants. Defendant kicked out b/c offenders have nowhere to go. Victim gets possession, not ownership --man owes support to wife or g/f’s kids, but not g/f alone so can’t be kicked out if living w/ g/f Why??? 1.) possession of house goes to victim 2.) temporary custody and support orders 3.) order defendant to provide health coverage 4.) def can’t go to employment of victim/school of kids – “keep away” provisions 4.) Duration of Order – 18 months in PA after full hearing and renewable 5.) Force/Clap of Order – violating order results in criminal prosecution & pun for contempt of court; arrest; Protection order is distributed to police --so even though order is civil, it has a lot of enforcement 6.) Burden of Proof = preponderance of evidence b/c civil but crim is innocent until proven guilty so easier than criminal? PA has broad eligibility; parent-child, elderly ppl, same-sex couples can get order Feltmeier --why did wife choose tort of int’l infliction of emotional distress and not assault/battery --b/c statute of limitations ran out on other torts --em’l distress = continuing tort so most recent act of abuse triggers new statute of lim. Battered Women’s Syndrome – some cts use it to extend statute of lim; p. 17 Fab outl. Grounds for Divorce: Fault-Only System – old way - no state has fault-only system today --The only way divorce granted if spouse guilty of bad conduct --Applicant spouse had to be innocent and def. spouse must be guilty --Fault lines still exist today but in addition to other systems in states Fault Grounds: KNOW THESE 4 TRAD’L – used to be sole basis for divorce Adultery – Most common fault ground --Sexual intercourse w/ someone other than spouse --Proof: Admission and if no admission use Eyewitness or Circumstantial evidence thru: Inclination – ex. ? & Opportunity Desertion – One spouse leaves the other voluntarily w/ intent not to resume marital cohabitation w/out consent and justification and there’s time condition on desertion UP TO date of complaint divorce --Voluntary separation is not desertion --Defense = there was sufficient justification for leaving --If conduct of stay-at-home spouse was so bad that it forced other spouse to leave = constructive desertion Cruelty – Physical Cruelty – could be one act if dangerous enough; “cruel and barbarous treatment” in PA --Defenses = Condonation & Recrimination Mental Cruelty – s/t that adversely affects health of spouse --Can be hard or easy std. depending on state law
Defenses: p. 660 Condonation – pl. knew about adultery but continued to have sexual rel. w/ spouse – pl. must move out right away or not have sex w/ spouse Connivance – like entrapment; where pl. sets up spouse and lover to have sex Recrimination – if W wants divorce b/c H committed adultery, but W also committed adultery neither can get divorce (old law) Why would states repudiate the fault-only system? 1.) b/c if both parties wanted divorce, fault-only system could lead to perjury by spouses when lawyers and judges knew exactly what was going on --but if one party wants divorce and other party doesn’t, then what’s wrong w/ fault-only system? b/c then one party stuck in marriage against will Today states have either no-fault or combination of no-fault and fault-only No-Fault System: Pure No-Fault – there’s only ONE ground of divorce in this state Has there been an irremediable breakdown of marriage? Substantive Elements: Derocher (p. 647) – H doesn’t want divorce; W wants divorce; there’s one child; Issue = is there irremediable breakdown? Yes Period of separation due to marital difficulty = strong evidence of breakdown **court will not issue guidelines as to what = breakdown and what doesn’t b/c then it would be doing fault-system all over; the fact that one spouse says marriage not broken down; we can make it work not a bar to breakdown finding *separation of parties here and W’s desire for divorce = enough evidence by itself to find breakdown here! Haggerty: H is alcoholic so he moves out; then he files for divorce; W says marriage can work if he’s treated for alcoholism; ct can find here that marriage broken down H’s treatment can’t bar breakdown finding **Plaintiff never loses in this system as long as there’s long enough separation and one spouse wants divorce easy to get divorce! Hypo: W has lupus so H moves out and lives w/ secretary; H brings action for divorce; under pure-no-fault, he can’t lose if separation long enough (1 week too short) Policy for divorce here: only want happy marriages; free will Policy agnst divorce here: not fair to W b/c she needs help w/ her sickness but even if marriage kept, H still won’t live w/ her. And it’s bad for kids of divorce. Best solution: have H pay child support and support for W and have reasonable custody orders for kids
“Combo” Fault & No-Fault System – PA has all of trad’l fault grounds Traditional (desertion, adultery, cruelty) + No-fault ground(s) – has specific period of separation requirement – more restrictive than pure no-fault In Pa, need 90-day separation w/ mutual consent In Pa, need 2-year separation w/ unilateral divorce (one spouse no consent) Why still have fault grounds in this system? Why not just have “nofault”? b/c if there’s particularly bad behavior, want to allow immediate divorce rather than require period of separation first under no-fault grounds *Why have separation req’ment under mutual consent divorce? Maryland system is tougher even if he waits under time requirement b/c they’re not separated voluntarily; he walked out on her w/out her consent so he can’t use fault and he can’t use no-fault b/c it must be mutual New York system – under no fault, need to be separated for one year pursuant to separation agreement – so if W against divorce, she just has to refuse to sign agreement; --decree of separation – can only be brought by innocent spouse in NY based on fault of other = alternative to divorce to be separated but keep marriage in effect – so here, W who is innocent, can refuse to get separation decree, and prevent divorce so NY and MD allow innocent spouse to prevent divorce if that’s what’s desired Divorce Jurisdiction: --Hypo: H and W live in NY; H moves to PA; says that W’s conduct was horrible in NY; W never left NY; can H get divorce in PA? --all states provide that party can get divorce based on their being resident in that state for at least 6 months right before divorce action – in PA ****Williams I: A and B from NC got divorce from their respective spouses in Nevada (lived there 6 months), married each other there, and returned to NC; NC charged them w/ bigamy b/c didn’t recognize their divorce if court enters a divorce decree based on 1) bona fide domicile of one spouse, then that decree is 2) entitled to full faith and credit as long as 3) procedural due process is complied with (notice and opportunity for other spouse despite lack of personal juris over them) – 4) just have to meet grounds for divorce in law of state where you live – like NV Williams II: A and B moved back to NC after they got married in Nevada. When Williams I went back to NC court, NC court said ok, but divorce still not valid in Nevada b/c A and B were not domiciliaries in Nevada --rule: you can challenge Nevada’s finding of domicile if divorce was ex parte
--it’s hard to challenge finding of domicile, but NC court here said yes, there was no domicile in Nevada and this was confirmed by US SCt Sherrer: if proceeding not ex parte, there’s no right to challenge domicile --here, H made appearance in proceeding on purpose to allow W to get divorce in Nevada? Note: a state can have jurisdiction to terminate the marriage where only the defendant is the domiciliary of the state HYPO: husband is a bona fide domiciliary of NC, moves to PA- has lived there for a year- wife can commence divorce action in PA because only requirement is that one of the parties be a bona fide resident for 6 months this is less usual Jurisdiction to Grant Economic Orders that Affect the Economic Rights of the Spouses Divisible Divorce Doctrine: Nevada ct can enter a divorce decree as long as one spouse is a bona fide domiciliary of NV, regardless of where other spouse is **Court cannot enter order regarding property unless it has in personam juris over def. --So if D goes to NV, D can contest grounds for divorce, but risk is that the court now has in personam jurisdiction- and can enter property orders Suppose P goes to NV and stays in NV
NV can’t enter a property division decree over def in PA P could bring an action in PA- divorce doesn’t terminate rights in PA??? If PA has minimum contacts, PA can constitutionally exercise jurisd over him Lived here, Marriage here, Could have property here These would constitute minimum contacts Could serve him via a long arm statute (if state has it)
Long Arm Statute: if we have jurisdiction over you, we can serve you by mail, even if you are out of state Jurisdiction with respect to Child Support (order need not be part of divorce action) Kulko v. Superior Court of CA to enter a child support order against someone, state must have minimum contacts with that person (essentially in personam jurisdiction- same as alimony rule)
Facts: only contacts with CA is that he stopped there in 1959 for three days, and was married there, thereafter, family lived in NY, separated, wife moved back to
CA, man never returned to CA- just sent child support (by agreement) and kids back and forth (pursuant to a custody agreement) court said that no jurisdictional basis- must have minimal contacts- and these contacts were not enough How might it have been different? if they lived in CA, children born in CA, then moved to NY if basic obligation to support kids arose in CA- then there would be minimum contacts
Alaska case man in Alaska for military service, has sex there and leaves, child born, mom sues, Alaska says that this is enough for minimum contacts Federal Jurisdiction in Diversity: Abstention Doctrine Federal courts have said, even though there might be jurisdiction in diversity – spouses live in diff states - they would voluntarily abstain from domestic relations cases Requires special type of expertise & State has special interest in the case Won’t handle initial suit for divorce, decree for alimony, and child custody orders Will handle: matrimonial dispute for a sum certain o Contract b/w parties (who are married) and one says that money is due o Enforcement for arrearages- $ owed via ct order, contractual obligations PA Principle: Estoppel to Contest a Divorce – hypo:
wife gets ex parte divorce in Alabama to be free to marry her boyfriend boyfriend argues that his marriage is not valid because the first divorce was not valid (didn’t meet divorce requirement) Court found that boyfriend loses, because even if not technically entitled to Alabama divorce- you are estopped to contest divorce b/c you knew what was going on, married, etc. – can’t now say your marriage was void
Divorce Obtained in Foreign Country
when you have a divorce in a foreign country- not entitled to full faith and credit instead, principal involved is Comity (you should recognize the decree of a foreign country unless it violates your public policy to do so)
Hypos:
clear that if foreign country entered divorce decree based on domicile of both parties in that country- should be clearly recognized if divorce based on domicile of one party in foreign country and other party got notice and opportunity- it will be recognized What it country enters divorce decree not based on domicile of either party Example: Mexico: divorce law- if one party physically appears, and other party enters a consent, then Mexico would have jurisdiction to grant divorce Courts in US did not recognize this, but a few did (ie NY) Example: Dominican Republic could divorce even if neither was a domiciliary
most states did not recognize because neither party was a domiciliary some states will recognize if both parties physically appear Property Division
Non-Community Property States:
at divorce- court has power to equitably divide certain types of property no matter in whose name it was acquired during the marriage
Steps for Property Division:
identify property value of the property determine what is equitable determine how to distribute
2 Ways to identify the property that is subject to equitable division:
All Property System: court can divide all property owned by either spouse no matter or how ever acquired In some systems, court will treat property acquired pre marriage, and third party gift, etc. as “less divisible”- will only divide as necessary- must have a reason to attach them Partnership System: what is divisible is only property acquired during the marriage- from time of marriage to some end-point- ***what is excluded is property acquired during marriage through inheritance, third party gift, or by will Idea: essentially marriage is a partnership and when marriage over, should be able to evaluate and divide marital assets acquired thru that partnership
Non-community property states – in 42 states --court has equitable power upon divorce to divide prop acc to statute regardless of who’s name prop is in Process of Division under non-community property: 1. Identify property A. Know the System: 1. Partnership model – courts can divide prop subject to equit division ( = marital prop) the prop that’s been acquired up to divorce –marital prop v. separate prop (not subj to equit division) Ex. PA – p. 8(handout) marital prop doesn’t include prop acquired before marriage or prop from 3rd party gift, inherited prop, or bequest There’s ending point; in PA, marital prop doesn’t include prop acquired AFTER final separation
a lot of states don’t use “final separation” as cutoff b/c too ambiguous separation becomes a factual issue other cutoff dates used: 1) date divorce complaint is filed (but this can be long time after actual separation) So a/t acquired by H/W after separation before complaint filed is divisible unless it’s 3rd party gift/inheritance/devise; but if H/W takes that gift prop and puts it in joint names, then it’s marital prop subj to eq. division 2) date of separation agreement 3) date of final separation (in PA) 2. All Property System: Everything is put into the pot cutoff date is date of equitable division hearing??? Is this unfair? Good system b/c fairest way. Just divide e/t 50-50 even if prop was acquired before marriage Even in these states, ct will apply tougher test – so will divide this way (and include prop aqd before marriage, 3rd party gift, etc.) only when it’s very fair to do so Ex. W very wealthy, lots of inheritance; H was teacher; ct said fairness req’d that H got share of W’s inherited prop B. What is Property? Identifiable + has a value – lawyer must consider: 1. Professional degrees 2. Goodwill in a professional practice 3. **Pension interests, stock options 4. Accrued vacation days, etc. 2. Value property There’s a lot of property that has to be valued by an expert like house Experts cost $ to do valuation of prop.; assessing value of corporation parties can agree on choosing one valuation expert; cuts costs 3. Determine what’s “equitable”/fair share/ just share DeCastro case; Factors! 4. Determine how to distribute – mechanics of distribution Court does not say sell e/t and we’ll divide the proceeds avoid forced liquidation of prop b/c will get less $ Court will divide assets b/w spouse thru equitable proportions Ex. the smaller the total amt of assets, the less likely the needy spouse will get greater amt; but needy spouse should get more? How do you divide prop if family business is only significant asset? --each spouse should get 50% ownership interest --but bad idea b/c spouses already dislike each other --better way: give managing spouse the interest but give other spouse a payout schedule where she gets $ every so often Dividing family home: if there’s more assets than just home, give needy spouse the home and give other spouse other offsetting assets if house is only asset, then court will let needy spouse stay in house even after divorce only if there’s special need; like if kids are abt to graduate from high school w/ friends;
Bifurcation – parties can bifurcate proceedings – so that parties can be free to remarry while prop is still being divided; if only one party want bifurcation, then they must show good reason – so court grants divorce 1st and retains jurisdiction for eq division later How does court determine what is equitable? (3rd step) Std in statutes is usually “fair/just/equitable” division of prop Statutes list factors to use – p. 11 in handout; p. 23 in Fab Outline Some states start off w/ presumption of 50-50 division and then go from there Other states just list factors to be considered in prop division **PA SCt said 50-50 presumption is erroneous; must start w/ factors 1.) deCastro: *Contribution as a Factor --H and W married for 20 years; H created hugely successful corporation --H had all stock in his name; this was primary family asset --trial court came up w/ 50-50 division of stock – H appealed this --Mass is all property state – so cutoff date is date of equitable division hearing – so all of H’s prop is up for grabs Is 50-50 share equitable? --If this case was in Pa – a partnership model state – what’s outcome? same outcome! b/c H’s stock acquired during marriage so = marital prop subj to equit division; only difference is that Pa has earlier cutoff date of final sep. in Mass, you divide all prop, WHENever and HOWever acquired Big factor at issue in case: relative contributions of parties Mass statute – contribution as a homemaker is considered – in every other state, either implicit or explicit, homemaker contribution counts How do you measure contribution? No quantification; just if done, it’s done her contrib. was equal to H’s; Don’t need an expert to measure her contrib. could H rebut this by saying W was lousy homemaker; she had maid, nanny, driver, etc.? W’s response: she gave kids, H emotional support; motherhood --contribution to family is more that physical labor H’s arg: I made “super-contribution;” I should be contributed for my genius court didn’t care! Marriage lasted from 1968 to 1988 – long marriage so W entitled to more In low-asset cases, contribution is not as important as need of low-asset spouse **Contribution becomes critical in long-term, high-asset marriage b/c need is no longer a factor contrib doesn’t mean 50-50 2.) Need as a Factor: --see p. 11 in handout --many factors go to need --need is still relative; a(9) – std of living of the parties during marriage – the higher your std of living, the greater your needs are 3.) Length of Marriage as Factor: --longer the marriage, the more favorable to needier spouse (stand-in for contribution) 4.) Marital Fault as Factor – most states don’t use this in prop division
--arg that this shouldn’t be a factor at all; H cheated on W; --this has no bearing on spouses’ contribution to marriage and their need --this is return to fault-based divorce; bad social policy to label one spouse at fault --but some states do consider this – like Mass --but it’s ltd; like considering only egregious misconduct in prop division 5.) Dissipation of Assets – if one party has wasted marital prop, they get less = improper expenditure or loss of prop subj to equit division 1.) To be considered dissipation, the funds would have been subject to equitable division (see req’ments for this) had they not been dissipated Ex. H gives mistress 300K = dissipation; a(7) on p. 11 in Pa statute Hypo: H has acnt from his earnings in his own bank acnt during marriage; gambles it in AC = improper expenditure + would’ve been subj to equit div = dissipation So ct says, H wasted 300K and considers that in dividing what’s left Hypo: **after separation, if H gives $400K out of $500K to g/f, not subject to equitable division b/c given after cutoff date 2.) Expenditure must have been improper – dissipation = improper if not done for marital purposes and done w/out consent of other spouse (prof’s definition) --if expenditure made in bad investment, that’s not dissipation --but if H gives $ to sick sister w/out wife’s consent, that’s debatable 3.) Timing: not relevant under PA statute; doesn’t matter in PA when H gave g/f gift if it meets 1) and 2) req’ments matters in some states, not others --Illinois case: H accused of sexual assault; H hires atty; spends lots of $; W agrees; then H says I’m guilty; W brings divorce action and argues that $ spent on atty fees was secured under fraud b/c H lied to W – argued for dissipation Ill SCT said that even if $ was otherwise improper, it’s not dissipation if $ was spent before marital breakdown! --court doesn’t want to audit a failed marriage; examine expenses during marriage 6.) Tax Consequences:**included as factor in prop division --NJ case: H buys seat on NYSE; spent $400K; when marriage broke up, seat was worth $2M. W said, give H seat on stock exchange and give me $2M in bank accounts, other assets. So she’s saying 50-50 split. --H’s objection: capital gains on stock is taxable!! And W wants liquidated funds --H has $1.6M capital gain and tax will be $330K so what H is really getting is 2M minus tax All states say that tax consequences may be considered as a factor in prop division --Caveat: many states say tax consequences may not be considered if they are not certain and immediate – Pa statute rejected this caveat --so H loses under this b/c uncertain when H will sell seat and how much tax is? --in PA, tax consequences need not be immediate and certain so then W would lose but W should argue that PA statute doesn’t mean that ALL potential consequences should still be considered; there should still be certainty
Lottery case: H and W are separated for 15 years; no divorce --H wins lottery after separation and W asks if she can get $ --can W assert equitable interest in winnings? No, b/c this $ was acquired after cutoff date – final separation --economic relevance of lottery – now W can argue that W should get more of marital assets if H has lottery now **W can argue she’s entitled to spousal support and child support --Now it’s in H’s interest to bring divorce action as quickly as possible b/c if they’re divorced, spousal support will terminate; H may have to pay alimony but that’s less than spousal support In other states where cutoff date is different (date of final complaint of divorce or date of separation agreement) – separation has not occurred so H’s lottery winnings are shared w/ W b/c part of marital property --so if lottery still subject to equitable division, some cts would divide 50-50 some wouldn’t 1) look at cutoff date to see if it’s subj to equit division 2) *** just b/c subj to equit div, doesn’t mean ct is req’d to divide a certain way; as long as it’s equitable 3) some cts say H won lottery thru dumb luck so give W half ON EXAM, IF NO STATE SPECIFIED, THEN DISCUSS ALL DIFFERENT STATE APPROACHES Analytical Structure: 1.Know System a. Partnership Model – i. What about increase in value during marriage and before cutoff date of separate value b. All-Property Model – 50-50 split 2. What is Property? Increase in Value --In a partnership model where property acquired by spouse pre-marriage- is increase in value during marriage and prior to cut off date subject to equitable division? note 2: two different possibilities: (1) PA Extreme: states in which all increases in value of non-marital property is considered --this means that if at the time of the marriage, husband owns 1000 shares worth $10,000, and at date of separation 1000 shares worth $50000, there is a $40,000 increase in value that is subject to equitable division --non-marital property acquired before marriage that increased in value- the increase in value is also subject to equitable division (2) Illinois Extreme: increase in value is never marital property
whatever increase in value there is, it retains status as separate property (3) Mittendorf Alternative --Stockyard business- increased in value; H said it increased b/c of timing- not his efforts --Court said that increase was in part due to efforts by husband- so it is marital property --If increase in value is due to non-owning spouse efforts- it is marital property --If increase in value is due to owning spouse efforts- marital property --H’s efforts were part of marital partnership effort- and his efforts resulted in increase in value, and that increase in value is s/t that spouse should have a right to Hypo where increase in value not be considered husband’s efforts? --ownership of stocks that did not increase in value due to efforts of either spouse --**so if it’s purely passive increase in value not marital property (4) Fourth Alternative: for non-owning spouse to get equitable division of increase in value - increase in value must be directly due to efforts of non-owning spouse What about income from separate property? Ex: Dividends - even though it’s separate prop, the income could be marital prop Property acquired in exchange for separate prop (is not marital prop) HYPO: husband owns 1000 shares of stock worth $10,0000 --During course of marriage sells stock and buys more stock for $10,000 -- (a)(1): property acquired in exchange for property acquired before the marriage is considered separate property Hypo: Husband owns $10,000 worth of stock, sells stock and buys a car --To establish as separate property- have to clearly show that the stock was exchanged for the car in order to be protected --All property acquired during the marriage is presumed to be marital property unless you can show that it is entitled to exempt status --Car would be presumed to be marital property, but husband can rebut that through records showing that money from sold stock went into the purchase of the car If I acquire property in exchange for separate property- and record clearly demonstrates that this was an exchange- it’s clearly separate prop still Transmutation – where prop goes from being separate to marital prop thru “gift” HYPO: husband owns stock at the time of the marriage --sells stock, puts proceeds in joint bank account for 3 days, then takes same amount of money out of the joint account and buys a car which he puts in his own name --wife’s arg that that car is marital prop subj. to equit. Div H made a gift to the marital entity by putting the money into a joint bank account
Conmingling HYPO: prior to marriage husband owns a home, but it is subject to a mortgage --money to fund mortgage payments comes out of a joint bank account (marital funds) does non owning spouse get anything? = commingling --2 answers: (1) Reimburse non owning spouse for the money they gave (2) Divide property based on percentages and give non owning spouse the percentage they contributed to the property Is a partnership model state, given that separate property exists creates these issues Pension Rights -- two most common assets in the marital breakup is house and pensions --pensions = assets subject to equitable division; don’t forget this when doing divorces!! HYPOS: husband and wife marry in 1980; husband gets job in 1981; separate in 2006 --husband has a pension 2 Types of Pensions: 1) Defined Contribution Plan: --Employer and employee make contributions based on a set formula --can each put in a certain amt of $ into a retirement plan per period (weekly, monthly) --easy to determine property, account --Can determine the value by looking at assets and appreciation Identify Property: look at account Value of Property: account records can let you know Eq: ??? Mechanics of Distribution: preferred method: Immediate Offset Method Essence of IOM: give one spouse the pension benefit (usually wage earner)- they get entire pension; other spouse gets property that is worth the value of the pension (assuming a 50/50 split) Non-Preferred Method of Distribution: Deferred Distribution --Maybe would be used if there were no other assets- (so what – why not still use IOM?) --Divide proceeds of each check as they come in --Courts like immediate offset because it ends everything right away --W/ Deferred Distribution- have to divide each check 50/50- and parties still involved ERISA (federal statute- protects wage earner pensions) --Under ERISA a state court cannot attach and give any share of a wage earner’ s pension unless court order complies with ERISA --To comply and be entitled to validity- must get a Qualified Domestic Relations Order
--Up to lawyer of non owning spouse to make sure that court order giving them a right to pension account- court order must comply with ERISA- otherwise not enforceable 2) Defined Benefit Plan = Second Type of Pension Plan: Classic Plan: wage earner doesn’t put in any money- if you have worked for the employer for 30 years, then employer has agreed to give employee a pension for a certain amt starting at a certain age No individual account – so harder to determine value? HYPO: husband gets job in 1981 husband and wife marry in 1991; divorce in 2006 marital portion is $60,000 from 1991 to 2006 Do 50/50 split b/w H and W PA statute on p.8, a.1 – Defined Contribution Plan – 1. Identify Marital Prop: part of plan that’s marital property is part of plan earned during marriage and before cutoff date under partnership model state; don’t count amount earned before marriage 2. Valuation: whatever $ is in plan is value of asset 3. 50-50 split 4. Method of Distribution – preferred method = Immediate offset method --if there’s not enough assets to offset pension/ if there’s only one big asset – the pension – then dependent spouse gets interest in pension = deferred distribution method Defined Benefit Plan under Partnership Model State Hypo: W – worked from 9/1/76; married 9/1/86; separated 9/1/2006 --at end of 30 years, at age 65, plan gives $4K per month --characterized by benefits you get, not who makes contributions to plan 1. Identify Marital Prop: 2/3 of pension is marital prop b/c 20/30 years of work, W was married coverture fraction – what percentage was earned during marriage 2. Preferred Method of Dist = Immediate Offset Method but problem is that there’s no total value here under plan; no amount has accumulated like w/ Defined Contrib. Plan So ask, what is life expectancy of W? 82 years, so if she lives to 82, she will get 17 years of monthly payments total of $816,000 BUT determining the “present value” of plan this way is iffy! Lotto ex.: getting lump sum now – the present value now – is much less than payments over time what is present value NOW of right to receive monthly payments five years from now? It’s LESS than $816K; go by interest rates, mortality factors, so, you must determine present value instead of immediate offset under this plan OR to do immediate offset (Preferred Method) 1) determine present value, and 2) then determine marital property portion of plan (here 2/3) 3) and then give
earner that marital portion and offset that by giving equal amt to other spouse w/ other assets and do 50-50 of rest of assets??? Deferred Distribution – non-preferred method; alternative to immediate offset --marital share is 2/3 and you defer non-employee spouse’s right to get a/t until employee gets $ and then divide based on marital prop portion and equitable amt of that marital prop portion so 2700 is marital prop portion and you divide that 50-50 so H gets 1350 need QDRO – qualified domestic relations order under ERISA Kelm: --H has big pension; ct said marital assets do not allow immediate offset method --so ct gave W equitable share of H’s pension as payments gave in --issue: H’s says the longer I work, the higher the pension payments go up; so W should only get 31% of 4K not 31% of 7K what happens to pension payments if they increase after divorce b/c of work? --Held, W gets same percentage of even increased payments to H after divorce, BUT ct will re-figure the respective contributions???? PA statute: include post-separation increases in pension Vested Pensions v. Unvested Pensions --suppose W has worked 28 years, not yet 30 years; then pension not yet vested; she has no contractual right to pension until she works 30 years --now, unvested pensions are not excluded from marital prop; can be marital prop as long as not too speculative like above ex.; but it’s speculative if W only worked 5 of 30 years --if W is 28 years in on job, ct will go by deferred distribution instead of immediate offset to be able to give H a share in pension once it’s vested must check if there’s exemption that protects pension of federal employee from attachment in state court – exemption for RR workers, etc. Bowen v. Bowen: specific valuation question – value of stock not publicly traded --Is H’s share of business prop subj to equit. Div? Yes; b/c acquired during marriage --But how do you do prop division of stock in company that’s not publicly traded? --If business is publicly traded, just find out value of stock; easy to determine --Business here was private; not publicly traded; both H and W had their own experts to value stock; both came up w/ different figures --Court said valuing stock is too shady so gave H stock and W ½ equit int in stock but App. Ct said it’s better to not have continued relationship through W’s interest in stock; so even thought it’s difficult to value non-public business, the court must value it So how do you value business, then? Ct said you can’t rely simply on book value, which is simply assets minus liab; must count value of goodwill/ reputation of business So how do you value goodwill of business? Cts use Rev-Ruling 59-60 – look at factors like *earnings, history of firm, nature of co., outlook for industry, book value of stock, value of goodwill, etc.
Value goodwill under Rev.Rul. 59-60 by coming up w/ Capitalization Rate --look at earnings and determine appropriate multiplier that a seller would sell it for: Earnings x Multiplier = Goodwill --Owner will sell business for more than current value of assets of business b/c he can still keep making money from business if he keeps it Minority Discount – if H owned smaller share of business, then that’s considered value of business Buy-Sell Agreement: if s/t happens to a partner (death), other partner has right to buy 1st partner’s share --H said that buy-sell agreement should be used to determine value of his business --Ct rejected this method unless it reflects a an arms-length FMV agreement Experts are critical in valuation cases like this; avoid accountants- not qualified here Conceptualization of What is Property: --Pa Statute doesn’t define property --easy examples of property are cars, house, paintings --Note on Deferred Compensation, p. 737 --if right to funds are earned after marriage and before cutoff date, then funds are subject to equitable division 1.) Ex. H wins lotto during marriage but will get payments after divorce; his right to all of the payments is subject to eq. div) 2.) Ex. Accumulated sick leave given after cutoff date, but right to that was earned during marriage, so it’s subj. to eq. div 3.) Ex. Severance pay – ask was it intended to replace earnings during the marriage or post-separation earnings since H was laid off? 4.) Ex. Intellectual property rights; W sells books after divorce but work done during marriage and copyright acquired during marriage 5.) Ex. Disability pensions, workers’ comp awards --Pa statute – excludes these from marital property if the cause of action was accrued prior to marriage even if payout occurs during marriage --W injured in accident and gets 400K settlement during marriage; this is subject to eq division --caveat: it’s still subject to *Equitable* division, so court doesn’t have to give H any of the settlement if W needs it for her injuries 6.) Stock options – big issue in high income cases – complicated --this is the right given to an employee to purchase stock at a certain price --say stock option granted during marriage but exercised after divorce – 7.) Hidden Assets – things a lawyer might not realize to divide --freq flier miles, sec. deposits, prepaid rent, life ins, club memberships Marital Debts --easy w/ house to take FMV of house and reduce it by mortgage --what if one party has big credit card debt; cts act like they have power to allocate debt --Issue: ask if debt was incurred for marital purpose, for one spouse, for family support – if incurred for reason unrelated to marriage, then debt not divided
Olar: Maj View: degrees are not marital prop subj to equit division --does spouse’s ability to earn income for rest of life = property? --H got graduate degree during marriage – is this degree property? --H got PhD in physiology and biophysics – and determining value of this and what H will do w/ this in future is very speculative; can’t be valued; court won’t do it --This is the majority view = holding in every state except NY --there is potential for injustice if you don’t count degree as property --b/c here, H worked for degree all during marriage and got degree at divorce; so W never gets to enjoy fruits of H’s labor that she contributed to --potential for injustice is greatest where spouse is newly minted dr., etc. upon divorce; and there’s no assets yet from working as dr. – no built up practice yet --but once you have a long-term marriage where spouse has worked for 20 years as dr., you will have more conventional assets to divide --In NY, how you value degree is based on life expectancy of person times earning power of average person in that profession – very speculative A degree is NOT property and injustice can be created Yoon: A medical practice is divisible based on enterprise goodwill --Yoon’s medical degree is not property subject to equitable division. --W said court must value practice of H’s practice just as if it were a business --consists of medical equipment, **goodwill of his practice --What principles are employed in valuing goodwill? Must distinguish b/w personal goodwill and enterprise goodwill personal goodwill = attaches from individual; this is just like future earning capacity; not divisible enterprise goodwill = ppl come b/c of advertising, reputation; not just b/c of individual; is divisible --If you have a business that’s highly tied up w/ identity like restaurant, then that’s more like personal goodwill; mostly business are one or other type of goodwill but it’s possible to have both types in one business --But w/ practice, you divide enterprise goodwill Some courts don’t distinguish b/w personal goodwill and enterprise goodwill --they just divide entire business as asset subject to eq. division --some cts say that goodwill of a professional practice is never divisible Yoon case = majority view; distinguish b/w 2 types of goodwill and divide enterprise Olar III: remedy for spouse who worked to pay for degree of other spouse --there’s n/t under prop division or alimony to give to working spouse; no trad’l remedies Reimbursement Alimony –recognized in most states including PA --Some states order that working spouse gets a some = to $ they contributed to other spouse getting educational degree; lump sum that can be paid out over years – b/c degreed spouse doesn’t have $ up front Differences b/c Reimb Alimony and Trad’l Alimony:
--Reimb Alim doesn’t terminate if working spouse dies or remarries unlike regular alimony --Trad’l Alim can be modified for changed circum but not Reimb Alim b/c this is based on what you’re entitled to; not meant to support you How to compute Reimbursement Alimony --PA says it’s money spent on general family support and for degree/education --??? Missed stuff Spousal Support – support that a court can order PRIOR to divorce Alimony – periodic payments to maintain needy spouse after divorce --Alimony pendente lite – can’t get this + spousal support --this is where needy spouse asks for spousal support before getting alimony after divorce; similar to spousal support – some differences --temporary maintenance during interim of divorce suit Alimony Amount and Nature of Alimony: Go by Factors; see PA Statute, p. 15 1. Gender Neutral – awarded to either spouse who qualifies 2. Permanent OR Limited Duration --PA statute, p. 16, - ct can do whatever is reasonable under circum – can award definite (lasts until spouse dies or remarries) or indef time --so now alimony is unpredictable 3. Both duration and amount are determined by factors Factors: Needs factors + Fairness factors 1. Fault – considered in alimony in PA but only in egregious circum 2. Needs of spouses; see b(1-3) – earnings, ages, income sources 3. Fairness – duration of marriage (the longer, the more favorable to alimony $); std. of living; contribution of spouse as homemaker To argue for less alimony, show that needs are low; to argue for more alimony, point out fairness factors Larocque: H is judge; W is homemaker; judge focused on needs factors that W is teacher – making $ so not needy after marriage App. Ct said trial ct didn’t consider fairness factors **Trial ct’s approach favors wealthy spouse: alimony is only for rehabilitation until needs spouse can support themselves, not nec’ly at level of marriage **1.) Rehab Alimony Approach based on Needs **2.) Fairness Approach longer alim period and more $ Must figure out what approach your court takes; PA statute doesn’t say which approach prevails Type of case w/ higher alimony = one wealthy spouse, long-term marriage, high std of living so give high alimony to maintain std of living Modification of Alimony: **see p.791
1. Alimony orders are modifiable for “permanent and substantial change circumstances” – lasting change in circum Alim, Spousal Support, Child support can be changed for perm and subst changes and terminate on death/remarriage of recipient Property division is not modifiable for future changes Ex. order for share in business revenues over 5 years so make sure to clarify if future payments are alimony (modifiable) or prop division!! (NOT modifiable and doesn’t terminate on death or remarriage like alimony) 2. Reimbursement Alim –reimburses spouse for degree of other spouse – not modifiable? 3. Modification can be of amt or duration; ex. wife no longer needs $ b/c her business up, so can modify it down by time; can increase term too 4. Alimony modification is only retroactive to date modific petition filed Hypo: H goes broke on 1/1 but files modification on 5/1; still owes original alimony amt. from 1/1 to 5/1; shouldn’t have delayed some states modify alimony arrearages downward; but can’t modify child support arrearages downward 5. What if after divorce, spouse who didn’t get alimony now needs it b/c of sickness and can’t work? Court has jurisdiction to make alimony or property division award ONLY in *Pending* divorce proceeding Unitary divorce state – ct can’t later on open up closed case But Ct can have jurisdiction if it has bifurcated proceedings and preserved jurisdiction over economic rights Sometimes a court will just give $1/month alimony so that it can preserve jurisdiction to modify it later on to protect recipient 6. ***Bases for Alimony Modification: If payor’s income goes down, alimony can be decreased What if payor’s income goes up? Can you increase alimony? No: marriage is over; parties not entitled to share in good fortune anymore But you can increase award later if it was inadequate at time of hearing (like if payor’s income lower than need for other spouse at time of hearing and now increased) If recipient’s income increases = basis for downward modification ***If recipient’s income decreases – cases go both ways Case – W becomes very sick and can no longer work Ct is unwilling to extend alimony for W b/c marriage over; H’s responsibility is finite Sometimes payor does voluntary reduction of income to pay less alimony – not a bonified reason ????? Termination of Alimony: Note 3, p. 792 1. Remarriage of the Recipient – minority view (rare) is that it continues beyond remarriage Doesn’t matter what econ circum of new spouse are 2. Death of the Recipient
3. Death of the Payor – if you know payor will die, you should get life insurance on payor payable to recipient 4. *To what extent does cohabitation affect alimony? Note 4 Majority view – cohabitation is not basis for modification So if ex-W moves in w/ b/f no per se effect on alimony *Instead, if W’s finances are up, then alim can be decreased *So don’t need to label it as cohabitation or not; just ask if there’s change in financial situation of W, if she’s now supported by b/f *Burden of Proof – how does H prove that W has more $ now? H has burden if he’s the one moving for modification H needs proof – how can he get records of $ from b/f to W? This could be real problem; some states presume contribution by b/f if there’s cohabitation and it’s up to W to counter this; so W has burden of proof But majority is that burden on movant – H If b/f not paying for W, then H still has to pay alimony *Minority Rule: p. 17 in PA statute – if recipient is in a cohabitational relationship, alimony is barred! Terminated! Policy: don’t want spouse to keep alimony and effectively remarry thru cohabitation **so definition of cohabitation = issue in PA; signs are: Living w/ opposite sex in manner of H & W Have sex, common home, live together, pool funds H/movant has burden to prove cohabitation What if W is not w/ b/f but with g/f?? – can H terminate alimony under PA statute? No b/c statute says opposite sex = cohab; **but you can still argue a change in W’s financial status – so modify downward What if W loses alimony b/c she lived w/ b/f under PA statute, but then b/f leaves her – can she get back alimony? NOT in unitary state where there’s no more jurisdiction/ divorce proceeding over ***So once alimony terminated, there’s no basis for renewing it! “Stand Alone” Agreement – just a court decree that parties are divorced and separate side agreement spells out economics Suppose side agreement says H will pay W $/ month until W dies or remarries. Then W cohabits; must H continue alimony under this K? Yes! b/c K is silent on cohabitation PA Statute can’t help H b/c statute applies to court-ordered alimony, not alimony under stand alone agreement! So stand alone agreement must have escape clause! Not a solution – getting ct order to incorporate stand alone agreement terms so that PA statute on alimony can apply
**But rule is that subsequent cohab won’t terminate alimony if that wasn’t in original agreement! So lawyer must define cohab. in agreement, whether stand alone, or incorporated into ct order If court order grants alimony based on K that does mention cohabitation as terminating event – enforceable = maj. view Drafting Cohabitation Clauses: o Definition of cohab is left up to state law definition o It’s more than occasional sexual relationships o Issue – do you define period of time of cohabitation? Recipient wants longer time in rel before it’s cohab o Recipient will want modification provision (based on econ circum) instead of termination upon cohabitation – b/c if there’s termination and cohabitation is over, then recipient can no longer renew alimony
Enforcement of Court Orders – know UIFSA and difference b/w civil and criminal contempt Rassier: Note 2, p. 799 – Uniform and Interstate Family Support Act (UIFSA) o Deals w/ interstate enforcement of support actions o States agree to enforce b/c of federal $ incentives o There’s no federal statute on these issues; but states have them UIFSA – useful tool o Permits a party to initiate support proceedings in one state and have them carry over in second state where payor is– cost & time saving; helps poor Note 3, p. 800 – anti-modification provision under UIFSA o A court which enters an alimony/support order has continuing jurisdiction over that order and another court can’t modify it o In Rassier, H wanted to modify alimony in ct different from ct that entered order but not allowed to ? Can only modify in court that enters order Civil and Criminal Contempt Criminal contempt – punitive in nature; order a pre-set jail term for contempt; must prove that a person knowingly violated a court order o All fed crim const’l protections apply b/c it’s criminal contempt o If judge opted for crim contempt, could’ve imprisoned Beedy Civil contempt – o Not a punishment for set term; but you’re ordered to jail to be coerced into complying with order o **Predative for civil contempt is that person has ability to comply w/ order but is refusing to comply; ex., can jail someone for refusing to get a job o This is not entitled to any const’l protections; in jail until person complies
Tax Consequences of Alimony Payments – deductible from income of payer and included in taxable income of payee Alimony payment = o Payment must be in cash o Must be paid under divorce instrument o Must terminate upon death of recipient spouse o If it’s prop division, you don’t have to pay income tax; if you get alimony you do [some benefit from alimony label so Cong tried to deter this] Child Support – there’s no tax consequences; tax neutral; not deductible or taxable Bankruptcy – if you file for bankruptcy, then you get a discharge of debts; clean slate --But alimony, child support, spousal support, prop division NOT dischargeable Child Support Parker v. AK Dept of Revenue: --Parker was from CA; had son in Alaska; mom wanted child support in paternity suit --child support, unlike alimony, is fully retroactive to birth of child – goes beyond date of filing order, *Depending on state; some states don’t allow retroactive $ Jurisdictional point: a state must have in personam jurisdiction (= minimum contacts – sex) if state has long-arm statute, it can ex. juris over you as long as there’s procedural due process; see Kulko case Basics: Missed stuff! --biological parent must pay c/s depending on who has custody and who is able to pay ct will NOT order C/S where parents are living in same house as family unit --don’t want to disrupt harmony of family (this rationale criticized) --obligation to pay child support is the same whether the parents are married or not --C/S is a periodic sum like spousal support; not a lump sum Who must Pay: --what if man says I’m not biological father and mother sues him for child support; they’re NOT married bottomline is blood test will be dispositive defenses: I didn’t have sex w/ her at gestational period OR other men had sex w/ her too, so it could be them – this used to be absolute defense at common law Now, there’s blood tests, and genetic tests that are highly accurate; so dispositive --Mostly, tests are irrebuttable! But PA ct said test was rebuttable – very unusual Who has obligation to pay child support? 1. Biological Parents – thru court order that a non-custodial biological parent pay c/s to biological parent who does have custody How you determine who is father? 1. when biological parents not married at all, genetic testing is dispositive
sometimes, the father says I was defrauded into paternity b/c woman said she was on birth control; this is asserted as defense to c/s obligation Cts unanimously reject this fraud claim as a defense to c/c!! Caveat: sometimes, man says, “ok, I’m liable for c/s but I have fraud claim (tort action) against woman and I can recover as damages what I owe in c/s” this is losing arg. too b/c this would undercut point of c/s! 1. When mother is married and there’s issue of whether H is also father: Lord Mansfield’s Rule: old common law rule Where woman is married and has child, H is presumed to be child and the only way to rebut presumption is thru 3rd party evidence of nonaccess – like H and W were living entirely apart during time when baby could’ve been conceived; if H was in military while baby conceived this rule presumed that kids were born in wedlock Today, you can have tests to prove if H is father so rule outdated So now whenever paternity is challenged, should tests be ordered? What’s wrong w/ this result – B/c can’t always be disrupting ppl by challenging paternity and ordering tests whenever u feel like it Too easy for man to say, I’m father, not H, so order tests for me to get custody Lots of different interests at stake; what if H, even though not father, wants to be father? Conversely, H may not want to pay c/s if he’s not father Classic PA common law presumption: presumption can still apply if H and mother are living together at time that paternity is challenged; so if b/f challenges paternity but H and W living together, tests showing that b/f is father are inadmissible!! Other states where there’s no presumption – paternity can be determined here thru tests; but estoppel applies very strongly H and W separated; W had b/f and had kid; H and W reconciled, H takes in kid; later, while living w/ H, W seeks paternity action on b/f t to get c/s ct said, here, presumption doesn’t apply but we do apply estoppel and mother is estopped b/c she didn’t sue earlier So, now there’s presumption only if H and W living together; otherwise tests ok; and if no presumption in state, there’s estoppel issue, and “best interest of child” principle also used Paternity depends on state law!! 2. Adopted Parents – have all rights and obligations as a biological parent! the 2 are legally indistinguishable 3. Step parents – generally have no child support obligations (see note?)
4. Same Sex Marriage – 2 women – one bears child so she’s the mother but the other one isn’t; before, states didn’t allow same sex adoptions but this is gone mostly --other woman could adopt child and biological mother is already parent These categories come up more w/ child custody contests; I’m father, I want custody How do you determine amount of child support? 2 Systems: 1. Income Shares Model: base it income of both parents, obligor and obligee 2. Percent of Obligor’s Income (Minority Method): Just look at obligor’s net income and go by # of kids; income of obligee should be irrelevant Characteristics: intervals $ goes from non-custodial to custodial Exception: Colonna - PA case, p. 875, ct said if there’s large disparity of income, custodial parent should pay $ to non-custodial parent if noncust has visitation rights Reason – children have right to be maintained in certain way when they visit non-custodial parent!! Courts can still deviate from guidelines on how much c/s obligor pays obligor says I make less than mom, so I should pay less, but under 2nd model, obligee’s salary irrelevant; BUT you can deviate if obligee makes more than obligor ***Factors where you can deviate from guidelines; 1. see above 2. if obligor has other c/s obligations to other, previous kids 3. if father has a 2nd child after child born to whom c/s paid but cts are less likely to deviate here **Cts have to put their reasons for deviating in writing as check on their power High-Income Obligors Models for c/s payments not helpful w/ very high incomes, so go by what’s reasonable w/ % of income model, b/c of high income, a percentage would be too high, so go by reasonable needs, etc. Reasonableness: what is reas. amt of c/s when income too high for model method? 1. Amount of c/s must be linked in some way to child’s needs! C/s is not income-sharing!
NY case – father is millionaire and mother wanted 100K but father willing to pay $12K a month court held that c/s is not incomesharing; it’s cost-sharing So child was still entitled to high std of life he had before parents divorced; and go by needs of child = rich lifestyle So ct held for father – 13K/month + nanny + medical
High-Income Obligors w/ children born out of wedlock – must pay for child support --Big celeb had one-night stand w/ regular woman and had kid --here, parents never lived together so there’s no established std of living for kid --**Cts are clear that father has no obligation to support the mother; only obligated to support child of HIS relationship, not other kids not his Paying for school expenses --court held that a private school expense is a legit expense – reason for deviating upward --PA has specific statute on medical coverage – have court order to determine amt each parent must pay for health care and non-custodial parent can be ordered to pay health ins ***Parental agreements on child support are NEVER binding on court --so if parents come in w/ agreement and then want to change it, it’s not binding [parental agreements on custody are also NEVER binding on ct] Perlenfein --all child support guidelines depend on income so “income” is extensively defined --court here said go by income after taxes, not before go by income that’s available --Hypo: 4K gross, 3500 net, 500 in IRA --is net income 3500 or 3000? $3500 or else you’d put all $ in IRA --Issue here what if there’s income retained in corp? Is this income of obligor? --W was sole proprietor of acctg business ct held all income made is includibe, even income retained in corporation if you can control what happens to your income, then it’s includible key factor w/ retained earnings – Does obligor have *Control* of income? If so, it’s income for purpose of c/s – what does control mean????? must show specific reasons if you don’t have control must show that you’re retaining income for legitimate business purposes; if you put $ away for no reason, then it’s income to you Corporate perks can be income for c/s, alimony, etc. like free season tix, co. paid car Capital gains on sale of an asset – after divorce, a spouse inherits $ - this isn’t subject to property division but is it relevant to c/s? --PA SCt held it’s not income; states differ C/s is modifiable for a substantial change in circum and it’s modifiable up or down --being unable to pay b/c of sickness or low bus. = reasons for downward modification 1. If obligor gets laid off and can’t find work anywhere for real – can reduce c/s
--but issue is if obligor really can’t find work – or just lazy 2. Loss of income due to voluntary action by obligor – quit job for law school If it’s proven that obligor voluntarily reduced income in order to avoid c/s obligation, court will not modify but what’s the point of keeping c/s order of same amount if obligor quit job? b/c then arrearages keep piling up so when he does make $, must pay up Why would court reject the good faith test and adopt strict test? b/c court considering interest of child but (p. 888) when you’re in family unit, you’re assumed to provide for kids, so you’re free to change job, but that assumption is gone after divorce, so not free to change job know policy!!!!! Good Faith Test – if it couldn’t be proven that obligor acted in bad faith, they were deemed to be acting in good faith – so entitled to modification Strict Test – support is kept at set level and if you change your income, that’s your problem – no reduction for voluntary decrease! but cts have rejected this as too inflexible --in Little, H left Air Force to go to law school --under strict test, doesn’t matter; if his act was voluntary, keep same amt --under good faith, he passes b/c job not quit to avoid payments --*New, intermediate test – someone gives up job for a future economic benefit like quitting job to go back to school or get some kind of training in meantime Intermediate Test Factors (in Little): p. 889 Kind of hit to kids – how will change of jobs affect income; if reduction in income puts child in financial peril, then no modification How likely is new job going to lead to more $; how speculative is move? The length of the period of deprivation – how long will it be before obligor starts reaping benefits of new job – if it takes too long, child will not get benefit if he turns 18 in 5 years Religion or Public Service = 2nd category of job change (1st is leaving job for education) **Strict test and good faith test yield different results Here, no prospect of income in future, and there’s substantial hit to kids, so cts are very unlikely to grant modification under intermediate test So arrearages keep piling up; can issue contempt of court on obligor Child Care Category: applies to obligor/obligee – parent quits job to raise kids 1st hypo: mother is custodial parent and decides to raise kids instead of going to work and making lots of $ - so obligee is voluntarily reducing income 2nd hypo: mother is non-custodial parent and remarries and has more kids and quits her medical practice to raise kids in 2nd marriage
Issue = is child care a sufficient reason for voluntarily reducing income? This category adds value of taking care of children DEPENDS! See below Does it make a difference whether parent is staying home to take care of children of her own marriage (obligee) or kids of a 2nd marriage (she’s obligor) o Cts say it doesn’t make difference Ct will not impute any income to parent who forsakes income for child care – old view – up to 1-2 years of child’s life (version of good faith test) Now, **cts have departed from this old view; now say o If you have a chance to earn income, child care is available, and child is not special needs child, then ct might impute income to you even if you stay home to care for child o Acquiescence is a defense to imputation; so if you agreed to let wife stay home for child care, can’t get ct to impute income to her
Category – Voluntary loss of income but not intended Incarceration – you beat up somebody and end up in jail and lose earning power o Issue = some cts say that this is not a voluntary reduction of income b/c obligor didn’t intend to reduce income + it’s bad public policy to have arrearages build up against someone in jail o If you let arrearages pile up while in jail, what’s incentive for obligor to want to get out of jail and find a job? o Conversely, let arrearages pile up b/c act was voluntarily done of committing crime and it’s good public policy b/c shouldn’t let wrongdoing excuse you for making payments o PA SCT refused to modify c/s downward where obligor incarcerated o Courts are split on this Termination of Child Support Order terminates when child reaches age of majority – age 18 when c/s terminates before 18: death of obligor – under common law, child support is over once obligor dies --so get life ins policy on obligor in case he dies as part of c/s small minority of states say, even after obligor dies, c/s continues if estate has assets that child can touch? Can modify periodic payments to lump sum under common law, if child emancipated, child became adult, then c/s terminated. Ex. child is living apart from parents, voluntary separation, selfsupporting, parents have consented = emancipation --ex. child gets married, goes to military Relationship of child to obligor – irrelevant; doesn’t matter if kid hates father; father must still pay; even if other parent is interfering w/ your visitation, you must still pay; conversely, if you’re not paying c/s you still have visitation rights Prolongation beyond Age of Majority --disability is main reason for extension of c/s; if child becomes disabled before 18 --but what if child becomes disabled after 18? Generally, no extension of c/s
--caveat: state family support statutes can make u pay for indigent parent or child College Expenses A substantial # of states allow cts to order paying child’s college exp. (no PA) – cts say selected college must be most appropriate for child; non-custodial parent has little or no role in choosing college financial formulation: old test in PA = “can a non-custodial parent pay $ w/out undue financial hardship?” estrangement b/w child and non-custodial parent is irrelevant; must still pay is power to order non-custodial parent to pay for college const’l?? unconst’l arg: there’s viol of equal prot clause b/c ct can’t order parents living together to pay for college LeClair analysis– fundamental right not at stake here nor is classification here suspect (not racial classific) so don’t use strict scrutiny test (toughest test); so default test = is there rational basis/rational rel – easy to pass – could statute rationally serve a legit state purpose? Ct said here, statute is rationally related to legit purpose b/c wealthier, non-custodial parent cares less for child than if child were living w/ that parent so there is rational basis for this statute only PA has found order unconst’l under rational basis test– Blue v. Blue – PA SCT said ct has no power; wrong in a state like PA where cts do not have power to order payment for college, parties are still free to contract this expense in private agreement but in PA, why would non-custodial H agree contractually to pay for college, when ct can’t order him to do so? H might want to pay for college, this college payment is part of overall, package of payments, W might demand college expenses as part of divorce agreement; in drafting K, lawyers have to figure out all details that a court in another state would have to provision for college expenses could be very open-ended – so need to be specific – be a certain sum, won’t exceed 4 or 5 years, etc., or that H won’t pay for college after kid is 25. L must think of all contingencies Suppose parties make agreement for college expenses can they have court incorporate this into court order? if court doesn’t have its own power to make this order (like in PA), cts say, yes we can incorporate this into court order why would W/M want this order be incorporated? b/c of added enforcement power thru contempt of court in case of failure to pay Child Support Enforcement (Ch 9) p. 907 --just know that UIFSA exists – the way that a child support order can be created in one state and enforced in another state – makes it easy to enforce when obligor is not in same state as obligee
--once a court issues a UIFSA order, that court has continuing exclusive jurisdiction over child support order; so the only way that obligor can modify child support is by going back to original state --the only way state loses continuing exclusive jurisd is if no party lives there anymore --states must set up their own agency to enforce child support to get federal funding You can be held in civil contempt of court if you fail to get job to pay child support NJ – gay marriage case – on EXAM Arg: ban is unconst’l under state constitution, which can be broader than fed const o Where a state has amended its constitution to prohibit gay marriage, then you can’t attack that state const. NJ Const: Is the right to marry for same-sex couples a fundamental right under the NJ Const? if it is fundamental, then that’s dispositive – no statute can overcome that fundamental right under strict scrutiny or a/t else o Ct held that right is not fundamental b/c not deeply rooted in nation’s history and conscience o [Mass ct didn’t go this far b/c said ban failed under rat’l rel test] o 3 dissenters said that gay marriage is a fundamental right: Arg: to say that a right is not a fundamental right b/c it has never been recognized before is a circular arg. Analogy: compare to Loving v. VA – interracial marriage, though not in tradition of nation, was held a fundamental right Is the statute unconst’l under NJ’s version of an equal protection clause? o Eq prot under federal law – if you have a suspect classification or a fundamental right is affected – use strict scrutiny o Eq prot analysis under NJ law – different from fed analysis: What is nature of right at stake? How important is it? What is extent of restriction? What is public need for it? State cannot deny to same-sex couples the same rights that heterosexual couples get Assuming same-sex couples have same rights as het couples, are they therefore constitutionally entitled to have right to marriage label? o Right to have name of being married doesn’t rise to const’l magnitude if same-sex couple gets all rights and benefits of het couples o So, court ordered legislature to give both types of couples the same rights by statute – civil union – or allow same-sex marriage So NJ legis will probably pass statute on civil union Overview: Mass only permits same-sex marriage; 3 states allow civil unions o In civil union states, can’t go and ask for divorce in another state if that state never recognized marriage to begin with o What if same-sex couple asks outside state to recognize its economic rights? – this will be next big issue
Marital & Cohabitation Agreements (Ch 1) Pre-Marital Agreements --2 Chief Functions: 1) To affect a spouse’s death rights a. Hypo: wife has lots of assets and husband has n/t and they both have children from prior marriage i. Why can’t she rely on her will to make sure that her assets go to her own children, not husband’s? why pre-marital agreement? 1. b/c of “elective share” – if W dies first, surviving spouse still has right to take elective share despite will 2. so a pre-marital agreement allows W to get around this – just say surviving spouse waives right to elective share – and as consideration, W agrees to same waiver b. This type of agreement is always fully enforceable 2) To waive or limit the rights of a party upon divorce; different models: a. Each party waives their rts to alimony, prop division, atty’s fees – you waive all economic consequences of marital disfunction b. You get a sum certain for a waiver of certain rights c. Sliding scale: if marriage lasts 1 years, then x amt, 2 years x amt, etc. if marriage lasts 10 years, there’s no waiver, ct will decide d. In state like PA, have a ltd waiver – like W will make no claim to increase in value of H’s assets if he brought a lot of prop into marriage 3) Now, there’s NO public pol bar to waiving economic rts (after FL case – Posner) a. But some states do have such a bar for certain waivers: i. You may not waive alimony – it’s up to cts to protect needy spouse ii. FL says you can agree to bar alimony, but not spousal support iii. Can’t bar right to atty fees 4) But general idea is pre-marital agreement CAN limit or totally waive economic rts 5) What a pre-marital agreement should do if you’re wealthier spouse a. Say what happens if you die first b. Say that economic consequences are waived c. ? Conditions for enforceability of valid pre-marital agreement are tougher than for ordinary K Pre-Marital Agreements: 2 objectives: o How to protect your assets if you die first o How to protect against economic rights if there’s divorce such as: Alimony Prop division attys fees spousal support
child support custody – agreement of any sort that affect child custody are not binding on court b/c ct has power to care for interest of child usually not addressed in prenups Pre-nups stricter than K’s b/c parties have a fiduciary rel to each other and agreements are not arms-length neg. so cts add more protections, restrictions o Fletcher: procedural fairness conditions – circum under which agreement made – (not substantive/not if terms fair); did each party get fair shot? Ex. **There has to be full disclosure or full knowledge of nature/value/extent of respective spouse’s prop = law in every state This full disclosure isn’t req’d in K law How do you make full disclosure of prop? Have attached exhibit initialed by both parties that lists all spouse’s assets In PA there’s rebuttable presumption of full disclosure if?? 1) Need full disclosure OR full understanding/ knowledge of other spouse’s assets Best to attach an exhibit to pre-nup!! 2) Agreement must be entered into freely Fraud is defense to pre-nup just like in K law – rare! Duress – deprivation of free will; more in K law *Broader Factor – did party enter agreement freely and voluntarily and knowingly? – not in K law, per se. o **Timing – is timing coercive under the circum? Ex. it’s 2 days before wedding, all of the preparations done, and then H gives W a pre-nup to sign – if she doesn’t wedding called off Lots of cases say that if W had chance to go to counsel even in short time, not coercive o Opportunity to read and understand agreement? Did W-to-be have business experience and knowledge? Was it a product of negotiation; did W get to discuss it, have familiarity w/ it Did W understand it? cts just say, did you understand, generally what it was cts don’t require H to “mirandize” the W by explaining legal rts o Was the less wealthy spouse represented by atty? If so, that’s very strongly favorable to agreement Best practice: advise other spouse to get atty
2. Substantive Fairness Provision – Must the terms of the agreement be fair? P. 23 Ct rejected concept that terms of pre-nup have to be fair by any stds; just go by procedural requirements only! = PA/minority view
Dissenting opinion – w/ long marriage, result of pre-nup can be inequitable where parties haven’t foreseen increase in value of assets and fact that W has raised kids and now W stuck w/ waiver of support payments States that do have Substantive Fairness Provisions: = majority; 3 Approaches o Some states limit analysis to alimony & support provisions – must be fair and reasonable at time of divorce – o Provisions on prop division, support and alimony have to fair and reasonable at divorce/time of enforcement - most favorable view o Need to keep spouse off of welfare if she is eligible for public assistance w/out support– least protective 4th view = PA approach on NO substantive provision requirements o So in PA, you make full disclosure, make sure other spouse has atty – and pre-nup upheld
Drafting – agreement should say “we waive rights in event of DIVORCE” --w/ death, make sure rights are waived as surviving spouse in event of other spouse’s death make sure you say “waiver!” Conflict of laws, note 9, p. 32 --need to include choice of law provision – of which state law governs on divorce, prenups; if spouse makes complete waiver of support, PA is most preferable state to choose b/c no substantive requirements --if no choice of law provision, then go by law of state w/ most contacts suppose pre-nup deals w/ who will do certain chores, not economic stuff, other expectations like W will work to support H in med school not enforceable! Engagement: Breach of promise to marry – common law tort – now GONE Ppl should be free to break up o But ppl still sue under fraud and intentional infl of em distress in break-up o But cts have not allowed these other theories b/c then ppl are not free to break up; just getting around abolishment of old COA o So now can’t recover for $ you’ve spent on wedding preparations If person who breaks eng. can’t be sued, how do you get gifts back from them? o Property Rule: a gift on condition of marriage is recoverable if marriage does not take place; ex. engagement ring is clearest example; most other gifts are unconditional it is not recoverable if gift is unconditional – gift that’s given to gain favor like birthday gifts o Now, donor can recover ring even if he’s the one who broke off engagement; there’s absolute rule of recovering cond’l gifts; keep fault out Cohabitation Agreements:
Hypo: unmarried hetero couple living together break up; what rts do they have? o If there’s express agreement b/w them, it can be enforced Marvin: g/f of big actor lived w/ him for 7 years; they broke up and she sued him based on express agreement – CA Ct held: this no longer violated pub pol agnst extramarital sex So Marvin case made these K’s enforceable; but req’d suff. detail! G/f ended up w/ nothing b/c she was unable to prove terms of K; plus her credibility could be attacked G/f alleged that they would split equally all their prop, $ made oral agreement – pretty good specificity But she can’t just say that b/f promised to take care of me o **Most states don’t require cohab agreement to be in writing o More frequently, L’s are asked to make cohab K’s like buying prop together, medical wishes, but unmarried, not suing on K after break up These K’s are enforceable JUST AS ANY OTHER K NO fairness/substantive requirements like w/ pre-nup o *Implied K’s – NOT enforceable; more controversial; Morone: Unmarried couple broke up; g/f alleged implied K that she would do domestic work w/ expectation that she would be compensated She did not allege a specific, express agreement, but an implied one under the circum Ct said express K’s are clearly enforceable, but NOT implied K Too complicated, burdensome, ct refused to recognize implied K for personal services– majority view But NJ does recognize implied K’s – man had wife and g/f for 20 years; he died intestate, but ct found implied K that he meant to compensate her for housewifely services b/c they lived together Case of 85 year old married man w/ 70 year old mistress; no implied K found b/c they did NOT live together; need cohabitation
Cohabitation Agreements b/w Same Sex Couples: OK if Express --there used to be public policy bar here but now they’re enforced if express K Post-Nuptial Agreements --made while parties are married; not made in contemplation of immediate separation/divorce; not before marriage or before divorce – in middle --standards are same as pre-marital; void in some states Separation Agreements – made in contemplation of separation/divorce or during sep. --deals w/ all economic aspects – alimony, prop division, spousal support --Standards: vary by state law! Some states have same std’s as pre-marital agreements States are less likely to have a disclosure req’ment but it happens anyway thru inventory disclosure in divorce litigation
Fraud = defense of sep agreement like w/ pre-marital agreement o Hypo: H has business that he’s going to sell for very high price but appraisers have valued it at lower price; courts split on whether H must reveal profitable deal in wake of separation o To protect less wealthier spouse – say each party warrants they make full disclosure of all assets Attributes – Relationship b/w agreement and judicial decrees: 1.) Stand alone agreement – rare – don’t choose it for obligee (whose getting $) in divorce!! Not enforceable or modifiable! a. Agreement spells out all consequences of separation/divorce; divorce decree is silent about economics b/c parties haven’t asked judge to rule about econ; decree just says you’re divorced – that’s it. i. Enforceable by contempt? No, b/c if H refuses to pay alimony under agreement, W can’t get it enforced b/c it’s not in judicial decree! Caveat: PA law says S/A agreement is enforceable by contempt even thought NOT merged into decree – minority ii. Say, H loses job and can no longer pay alimony amt. unless there’s K-based defense; can’t modify it since not in ct order. 1. Caveat: w/ child support, ct can increase it in best interest of child; child support not upheld in agreements; cts have pwr to award c/s at own discretion 2.) Agreement merged into decree?? – rarely chosen by obligee a. **Once merged, can’t sue on agreement independently because the agreement does not exist anymore b. ?? If it’s modifiable, obligee is concerned it’ll be modified downward c. Most states don’t enforce prop division agreements by contempt i. but PA does! d. 2 possibilities: ??? i. Goldman – merger = agreement dissolves once it’s merged into decree; so in case, decree is fully modifiable ???????????? 3.) **Agreement incorporated but not merged into decree – best for obligee! a. Agreement still exists so can be sued on separately as matter of K law b. But agreement itself may limit modification; otherwise decree is fully modifiable, making agreement modifiable – majority i. PA – agreement NOT subj to modification by ct unless parties specifically provide c. Do have contempt available in all jurisdictions Agreement can preclude c/s modification downward, but not upward Property division in separation agreement is not enforceable by contempt of court
can’t put someone in jail for a property debt CAVEAT: PA: 3502(e): lists remedies for failing to comply with equitable division order (e)(9): can find party in contempt = enforcement device
Custody Determination
battle between biological and adoptive parents is a battle for primary custody one parent is a custodial parent other parent is a non-custodial parent with visitation rights
PA Terminology:
Custodial Parent: Physical custody Noncustodial Parent Partial Physical Custody person can take the child out of the home Visitation Non-custodial parent had the right to visit the child in the home of the custodial parent only Most states say visitation means the right to take the child with them for a set period of time History of Custody: Tender years presumption that child is best off w/ mother during tender years (unless unfit) is now replaced by best int of child test
Best Interest of Child: unpredictable, expensive, takes longer, many factors In Re Marriage of Kovacs
custody battle for 3 children; mother- in home custodial parent trial court awards custody to father, app. Ct to mom, sct to father
Best Interest Factors: Page 964:
(1) Primary Caretaker Factor: which parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child talking about who took care of kids, gave baths, fed them, and interacted with them on a daily basis most of the time which parent rendered care most of the time Emotional Assumption: child is going to bond with parent who has given care most of the time, and it is better for child to retain the continuity of care by the same person avoid severing bond w/ primary caretaker Not conclusive, but very important factor Agreement of parties – not a major factor; not dispositive even if parents have made agreement b/c ct must look to best int of child Parenting ability, responding to emotional needs of child, and child’s rel w/ each parent experts are key to testify on psychology of kids and parenting ability
o In case, mother was P/C but still lost custody b/c of factor (iii); expert psych testimony is imp to evaluate parenting ability to meet needs of child o Father’s expert did much better job than mom’s, a counselor o B/c of these witnesses’ testimony, ct took kid away from mom o **Cts defer to experts too much; should argue to ct that expert not supposed to make decision for ct if expert opinion is adverse to you o Expert in this case decided case; cuz mom lost kid b/c of sucky witness Child’s relationship w/ surroundings like mom’s b/f, siblings, environment Wishes of child – depends on maturity of child and reasonableness of wish o Ascertain wishes of child in judge’s chambers and PA requires record here o Older the child, more likely he’ll get his preference- teenager Each Parent’s employment schedule – most relevant w/ visitation rights; rare for dad to make arg that mom is working so give me kids b/c I will give home care o Cts don’t let working mom be dispositive factor Bad conduct by custodian – like here, mom was dating man and left kids with relatives while she went out – this is fine; kids not in danger so conduct irrelevant; but mom also drove kids while she was drunk – this is problematic o Sexual conduct of parent that has present adverse effect on kids is irrelevant; would be adverse if kids were upset emotionally by b/f o Same sex rel. by parent – the rule is the same in many states – ok unless there’s present adverse effect on kids; but some cts could say same sex rel could have future adverse impact so it’s a relevant factor Is embarrassment of kids a factor if parent is in same sex rel? mom denied visitation w/ her g/f b/c kid was embarrassed How much weight is given to embarrassment as a factor? Some cts say it’s not a factor b/c kids will be embarrassed by a lot of things – “big world” arg Domestic Violence – it’s definitely factor if dad is beating kids; but what if dad beat wife, not kids, so kids not adversely affected? o Still a factor b/c dad is setting bad example for kids - future o Bad for child in present to be exposed to dad beating is partners Economics – cts say it’s not a factor, generally. If mom is better parent, she gets kids even if she has less $ than dad; solve $ problem thru child support Friendly Parent factor – it’s important for kids to contact both parents so ask, which parent is more likely to put kids in touch w/ other parent? Keeping siblings together Same sex preference – is child better off w/ mom if she’s girl or dad if boy?
What are the Rights of Parent who Loses Custody? P. 982 Non-custodial parent has right of visitation – limited physical possession Test: Visitation will be denied if there’s serious endangerment of child’s physical, mental, or emotional health o Ex. non-custodial parent can take child away from home for a weekend night, share of holidays, etc.
o In PA, right to remove child from house = partial custody and visitation = right to see child in home only o Father may say I’m entitled to have son for entire summer – 3 months b/c I meet std that child will not be seriously endangered Problem w/ this arg: this is full custody for 3 months – closer to joint custody, not just visitation So “seriously detrimental” language is not the test for joint custody **Test should be best interest of the child o Infant visitation – is general rule applicable where child is X months old – mother may say that visitation is too disruptive for baby’s schedule o [Overall test = best int of child test; and w/ visitation, it’s presumed that visitation is in best int of child unless kid is seriously harmed/detriment] o If child refuses to go along w/ visitation, sometimes ct will yield to child Ex’s of where visitation is denied: o Child abuse, father in prison, can have supervised visitation in home if father is likely to kidnap kid or father abusive toward mother Virtual/electronic visitation is new movement This is 1st model on fights b/w biological parents or adoptive parents = model of primary custody + visitation rights 2nd Model: Joint Physical Custody = split physical custody evenly Common for mom to want primary custody and dad - joint physical custody Overall std is best interest but factors here are different: o **Key factor: do parents have history of cooperating together on decisions for kids; there must be cooperation on shifting of kid; parents must be able to get along! o 2nd factor: how much trauma will kids have b/c of moving around o 3rd: wishes of child if child is old enough (minor factor) Joint custody can be alternated 4 weeks, 3 months, b/w parents Now, joint custody is presumed to be in best interest of child if parents agree
Joint Legal Custody Order that gives each parent right to make legal decisions affecting child o So this includes any decisions??? In primary custody model, only primary custodian has legal authority So Ct can award primary custody to mom, and joint legal custody to both parents Std. = best interest of child Ex. under primary custody, mom decides to send kid to private school and can sue dad for child support for private school b/c mom has legal authority as primary Religious Upbringing – p. 981 Custodial parent has right to decide religion; but cts vary on if noncustodial parent can do different religious stuff w/ kid Children’s Names
Mother remarries and takes name of 2nd husband and now wants to change last name of child w/ 1st husband o Old rule: child takes name of 1st husband; father o **New rule: best interest of child – look at how long has child used father’s name? is it better for child to take stepdad’s name considering mom’s adoption of it
Renaud v. Renaud High conflict custody case – where parents hate each other and use child in their fight to funnel their anger – like dad tells kid, ask mom why she did “xyz” 3 Categories of Custody Cases: o One parent deliberately poisons child against other parent o One parent files constant petitions to restrict visitation, etc. to harass father o Failure to comply w/ visitation schedules – father is late to pick up kids or mother is late to deliver kids L’s should not exacerbate these fights and play on client’s emotions to cause more litigation and make more $; L’s have to calm down clients Rule of Law: conduct that alienates a child’s affection for parent can be a cause for modifying custody– want to put child in possession of parent who will cooperate w/ other parent not poison kid against other parent o See Friendly Parent Factor in granting custody to begin with Counsel for child – most cts permit appointing counsel for child; req’d if child abused Guardian ad litem – doesn’t have to be a L; acts for child’s *best interest o Makes decisions for child and argues to ct for particular result o Can recommend a placement for child thru giving ct reports o = mini judge serving best interest of child L for Child – L represents the child just any other client – prevailing model o Doesn’t have pwr to recommend to ct a particular result o Can’t submit reports to ct Hypo: 13-year old child didn’t want to reveal he was abused; a guardian ad litem has freedom to act independently and do what’s in best int of child even if that means revealing abuse; under L for client model, L has to follow kid’s wishes unless child is impaired and unable to decide for himself – if so, L should tell ct to appoint a guardian to decide for child and L will do what guardian adivses These 2 models are very different and there’s confusion b/w the 2 L’s Responsibility to Report Child Abuse: You’re L for parent abusing child or you find out that other parent is abusive All states have mandatory child abuse reporting statutes – dr’s, nurses, must report regardless of whether past or present – do these apply to L’s? o In a few states, a L is a mandatory reporter of child abuse – Miss Must report it if it’s your client or other parent o In most states, statutes are NOT clear – they say “any person” must report and specifically list health care workers but not L’s
o Rule of Thumb: L is not mandatory child abuse reporter unless state specifically includes L’s May an atty report child abuse? Under R. 1.6 – Confidentiality – an atty may disclose to prevent death or harm – atty would have to first conclude that there’s harm that can be prevented – if client says, yes I abused in past, but that’s over, I’m done – a mandatory reporter must report but not nec’ly other L’s – can report only if abuse will likely occur in future
Modification of Visitation or Primary Custody Can be done if in best interest of child or changed circumstances or new facts revealed = majority rule - broader Uniform Marriage and Divorce Act: stability is extremely important need for kids o Can’t modify custody until it’s 2 years later (unless child in danger) and then, only if custodian has agreed, child has been integrated into petitioner’s family, or child is endangered Joint Custody – no change in circum req’d; modify if in best int of child November 21 Specific Issues of When to Modify Palmore v. Sidoti - Race Mother had custody and had black husband so father wanted to get custody Social stigmatization to child in future = basis for modific of custody acc to low ct But SCt reversed this; can’t modify custody solely based on race; no present harm Reality of private biases, racism is impermissible factor as matter of const’l law Even if there was present stigmatization and child actually adversely effected, still can’t make that a factor b/c you’re giving effect to private biases Hypo: mom has custody and dad moves for primary custody b/c of changed circumstances Sexual conduct of a parent (in heterosexual context) is irrelevant in either awarding custody initially or modifying it later unless there’s adverse effect on child – thru child’s reaction (resentment of child) or abuse of child Hypo: father has g/f and has visitation rights; mother says father’s rel. is contrary to my relig/moral teachings – wrong to have rel outside of marriage so mother moves to take away father’s visitations in presences of g/f – Live-in Relationship: Visitation is a strong right and not to be curtailed unless visitation is seriously detrimental to child How do address moral values arg? it’s a big world out there; and kids will be exposed to moral/relig view contrary to their own inevitably so father’s rel. per se is not a factor to curtail visitation = maj. view In same sex content, mother has custody and she’s in same sex rel, father wants to get custody; here, more cts are willing to say that there could be future harm to child as basis for modification; but they don’t specify that future harm
In hypo w/ same sex parent having visitation rts, cts here are also willing to consider future harm and modify visitation to where partner must be absent
Religion as a Factor Religion as a factor alone is not enough to modify custody But if child has been brought up w/ a single religious identity, then parent w/ that same religion is favored Some religions can be dangerous – teach that it’s ok to lie, steal from nonmembers; can this be factor? Cts say that considering impact of religion in child custody doesn’t involve 1st Am b/c parents are free to choose their own religion but w/ children, you go by their best interest; so a parent’s bonified belief in a religion is not a factor; if religion has dangerous impact on child, then that can be a factor o So cts use this test: Is there a present, adverse impact on child b/c of parent’s religious beliefs? o Must look at religion in narrowest way so as to protect belief – cts don’t want to allow kids to be raised only in mainstream religion – ex. J’s W mom wouldn’t let kid go to college – this is not present, adverse impact If parent w/ visitation rts wants to expose kid to his religion and mom objects: o Cts say it’s a big world out there; maj view – there’s no problem w/ kid being exposed to non-custodial parent’s religion; only problem is if noncustodial parent interferes w/ religious training of kids’ main religion – like taking them to Mass on Sunday when they’re supposed to be in Jewish school = PA case o Mass case = mom is raising kids Jewish and dad takes kids to weird church and cuts their hair contrary to Jewish tradition – ct didn’t allow this Relocation: Baures v. Lewis: mother had custody and wanted to move from NJ to Wisconsin; father objected b/c that would destroy his visitation rts o ct prohibited either party from leaving NJ w/out ct permission – can still leave NJ but need ct order o so in case, mother petitioned ct to relocate; Some states require you to get ct order to move just by there being a custody order Old rule – strong presumption against removal from state and must show significant economic reason to move – like job; favors non-custodial parent and favors best int of child to be w/ both parents o Parent is still free to move, but can’t move w/ child? Rule is changed now b/c you can communicate long-distance, a move that’s good for custodial parent is good for child too New tests in place now o NY test: pure best interest test – is move best for child? Burden on custodial parent o CA test: if it’s in best interest of parent, presume it’s also in best int of child; presumption is in favor of custodial parent to relocate o New Test: balancing test – NJ factors (p. 1003)
November 27 – above case cont’d **PA Balancing Test on Relocation of Custodial Parent: (Gruber Factors) o Would relocation substantially improve quality of life of custodial parent and child? Consider non-economic and economic quality of life o Is motive of custodial parent bonified? Is motive of non-custodial parent bonified? Parent are not simply trying to frustrate each other’s objectives o Is there realistic substitute visitation schedule that will adequately foster the ongoing relationship b/w child and non-custodial parent? Applying test to Baures case: o Wisconsin would have better schools for kids; mother’s parents in WI o both parents found to have bonified motive; o can keep amt of contact the same by having fewer but longer visitation o (virtual visitation can be substituted for real visitation) Hypo: what if mother moves and is willing to do virtual visitation but father says this isn’t enough? There can be petitions for permission to relocate intrastate – from Pitt to Philly o Procedurally comes up thru father filing emergency petition – his theory is that if mother moves to Philly, child will not have contact w/ father so harmful to child, so give child to father – so mother will reconsider moving o Use same test for intrastate move as for interstate move Moving to foreign country – main issue is if child will be adversely affected? W/ joint custody, and parent wants to move out of state, then you don’t have to really apply Gruber factors o Must apply a pure best interest analysis – be neutral to both parents What happens if mother moves out w/ child in violation of court order? She could be punished for contempt of court o Rights of father: he can have mom held in contempt of court – but this does him no good while mom is in WI o Could fight for custody in WI – not a good idea o Or he could move for a modification of custody in NJ –will sympathize On basis of changed circum so it’s in best int of child to be w/ dad So get order in NJ and try to get it enforced in WI – not about full faith and credit Federal kidnapping statute does not apply to abduction by a parent but state statutes apply to parents who take kids away in violation of court order/custody
Custody battles between 2 gay women who break up, grandparents v. parent, stepparent v. parent lots of categories of disputes b/w parents and non-parents o Separate category = fight b/w b/f and father on who is father; who will be regarded as parent for purposes of custody, support – discussed earlier o Battle for physical custody b/w clear Parent and clear Non-parent:
November 28 on exam, should discuss alternative measures in different states for “state of ********” know PA law to extent discussed in class – like if used as example Battle for primary physical custody b/w clear Parent and clear Non-parent: Couple divorces; mother takes kid and remarries for 5 years; she dies so then there’s battle b/w step-father (emotionally attached) and real father How to determine custody in battle here: o Old Test (p. 1032): the fit parent always wins – so above, father wins o Pure Best Interest of Child Test – opposite extreme of old test; look only at child’s int rarely ever applied b/c stepfather and father treated same o Middle Ground Test: prefers parent (given prima facie rt), but permits ct to consider int of child if there’s reason for giving custody to non-parent In Stalik, above case, PA gave custody to step-father under this test All 3 tests impose a standing requirement on non-parent to be able to challenge parent’s rt to custody in first place – in PA = in loco parentis Case: mother has child; she’s killed; aunt brings action for physical custody against dad; but here, diff is that aunt never lived w/ child like in above case o **PA Sct: to have standing, must have lived in place of the parent w/ child – “in loco parentis” – assume parental duties for child and it wasn’t done thru kidnapping, etc. so aunt failed to meet standing o Ct said aunt didn’t have standing b/c never lived w/ kid but stepdad had met in loco parentis w/ child Battle for visitation b/w 3rd party (female partner of mom, grandparent, stepparent) and parent X: Pure Best Int of Child Test – applied in a few states for visitation – so easily granted but thrown out by Troxel! StandingBIOC Test (in loco parentis/psychological parent test to get standing) o T.B. v. L.R.M.: female partner of mom had in loco parentis status for 3 years and wanted visitation after she broke up w/ mom Mother argued that partner was just a caretaker; what if nanny was fired and sued for visitation rts? Nanny would fail under in loco parentis – b/c not acting as parent, but as caretaker o Some state statutes say grandparents already have standing for visitation rts – like if their child is divorced or dead, they have automatic standing
No in loco parentis recognized; Must show a statutory basis for standing – tough test Troxel: grandparents’ son commits suicide, had kid w/ woman who didn’t want to give visitation to grandparents-in-law o Washington statute on standing broad – any person can petition for visitation; only std. is – is it in best int of child to grant petition o US SCt: parents have the right to make decision about the upbringing of their children; **Wash statute was unconst’l as applied b/c did not give weight to mother’s determination that visitation was not in best int of child o If parent says no visitation, or ltd visitation, SCt says const’lly, you must give special weight to decision of parent, (but you can overcome this – factors not spelled out) so can’t go by pure best interest test, b/c that overlooks decision of parent What is effect of Troxel on above tests? o Mainly applies to visitation battles o So in the few states that use pure best int test – OUT- can’t use it Must give special weight to decision of parent o PA – had statute saying if you’re grandparent, or in loco parentis, then it’s best interest test PA Sct said our best int test is const’l as long as special circum were considered like if child had bonded w/ non-parent Facts: mother died, grandmother had seen child constantly and after mother died, father denied visitation even after Troxel Ct said special wt to father is overcome b/c of best interest test ***This is test post-Troxel So give parent wt first, then do second tier of test of BIOC o Other states say, we can’t grant grandparent visitation unless child would be directly adversely impacted – tougher test
November 30, 2006 Adoption: - statutory procedure - to be effective, must be gone through in accordance with statute culminating in judicial order Context of Discussion: - Un-married Mother; child adopted by heterosexual couple Placement of Child - how does adoptive couple get kids o DE Approach: can only get a child for purposes of adoption through a licensed child adoption agency o Most States (Including PA): Private Placement: Mother can place child with adoptive couple
Often, mother would go through a physician, physician would contact lawyer who handles adoption Doesn’t have to work this way Mother can independently place child with a couple she knows is willing to adopt it In this context, mother doesn’t actually know the couple
Issues with Private Placement - what monies can be paid o Flat Settlement: can mother be given $15,000 to place child with a particular couple Answer: NO: agreement to this effect would be unenforceable, and potential substantive crime of baby selling o Permitted Costs: Health Needs: Agreement providing for health and maintenance needs of mother throughout period of pregnancy and birth process Payment for lost income: this would veer towards unpermitted payments Rights of Biological Parents - rights must be terminated so they can be replaced by adoptive parents o central concept: adoption finalized means that adoptive parents have all the legal rights and responsibilities of biological parent because they are “in law” the parent o their rights “replace” the rights of the biological parents Termination Issues - termination of rights of biological mother: o usually, mother would voluntarily consent to termination of rights o Rules: is a consent that is entered into pre-birth valid? In many states, it is not, must be after birth of child Want consent to be knowing and meaningful in the greatest sense of the word o Child given in meaningful way only after child born Even if consent is given after birth of child, can it be withdrawn? Some States: Consent by parent who gave consent- consent could be withdrawn at any time until final hearing for adoption Some States: have 30 days to withdraw Some States: consent to terminate can never be withdrawn - Termination of rights by biological father o Want to terminate rights of father in some way Voluntary: Father can consent to terminate rights
Involuntary: Father won’t give consent: there is a statutory ground for Involuntary Termination Usually conduct based Requires serious fault or abandonment of child Unaware Father: If father didn’t know child existed: constitutionally, father is entitled to procedural due process Notice and opportunity in connection with termination Unknown Father: if father is unknown or not locatable: may be ok to do service by publication
Best Interest of Child: - adoptive parents must be investigated to see if they can adopt Single Parents - at one time, states did not permit single parent to adopt because not in best interests of child BUT this is NO longer applied Same Sex Couple - no prior connection, or child of one of the people - some states do not permit same sex couples to adopt - In most states, including PA: same sex couples can adopt Step-parent Adoption – so can’t be adopted by 3 parents? - can’t adopt unless rights of biological parent have been terminated - if parent has maintained relationship with child- parent would say: o not voluntary o not involuntary because no fault or abandonment Legal Consequence of Adoption - adoptive parents have all rights and responsibilities of biological parents o child support - once biological parents have terminated rights- they have no rights or responsibilities Issue: Agency neglects to tell adoptive parents of major health defect, etc. - can’t give child back - could sue agency Adoptive Agencies: Different State Models - Closed System: child can’t get information about biological parents o Privacy Interests: Sometimes parents don’t want any connections to child o Child may have health reasons for wanting to know - Open System - Intermediate Variation International Adoption
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people go out of country to get children b/c easier and faster downsides o health problems: no guarantee of information like in domestic adoptions o may involve a flat payment that would be illegal in this country parents do the adoption in both foreign country and adoption in US
Surrogacy - classic context: man and woman can’t have child- they go to a surrogate and get artificially inseminated o Problems: usually require substantial payment to surrogatethis may be an invalidating factor Contract unenforceable as a matter of public policy? surrogate is the biological mother; husband is biological father surrogate has to terminate her rights - other assisted reproduction: o PA Case: 897 A2d 1261: (Apr. 2006): man and woman living together, want children, contact a firm in Indiana called “surrogate mother’s inc,” contracted with an egg donor, in vitro fertilization into gestational carrier, pay a certain flat fee, plus medical expenses Gestational carrier agreed to relinquish rights Eventually, implant embryos in GC, who gives birth to triplets She doesn’t want to surrender kids Adoptive parents go for “nesting”hospital falsely says that they discharged the kids 2 days ago GC sues for custody, and sues to terminate rights of egg donor PA Superior Court: she doesn’t have standing “in loco parentis” because: She is not a biological mother- she is a “womb renter” she did not establish relationship with acquiescence of parents (this was in defiance of parents) She argues that the contract refers to her as mother o Court says that she is not the legal mother, plus agreement says you are not the mother o You don’t have standing to raise custody issue o You don’t have standing to terminate rights of egg donor She argues that contract is unenforceable o Initially, didn’t challenge the contract o under decision, father wins father hasn’t seen kids for 3 years court recognized this is difficult- but have to deal with this from a human perspective December 4
Child Custody Jurisdiction: Don’t need in personam J over parent!! no req’ment of in personam J over parent to decide a child custody case; no req’ment of in personam J over child No in personam/min contacts req’ment over parent to affect their custody rts!!! May v. Anderson: need in personam J to decide a child custody case – but never followed; conc opinion is what’s followed – so go by best interest of child UCCJEA: premised on belief that you don’t need in personam J over parent in custody case – adopted in most states UCCJEA – uniform child custody jurisdiction and enforcement act – p. 1131 Initial Order – 201(a)(1): ***a state must be the “home state” of the child on date of starting of proceeding OR o [Home state = state where parent of child has lived for 6 straight months before starting of proceeding ] o 2nd clause: if at any point had child been there for six months but no longer there before proceeding but parent still there then there’s J Prevents dad from taking kid to another state to get J in more favorable state o A(2): if there’s no home state, then go by state w/ significant connection w/ child o In personam J. NOT necessary or sufficient – 201(c) 204: temporary emergency J. given to ct if there’s emergency 206: a ct can decline J. if it’s not the most convenient forum 208: a ct w/ J. must decline it if parent has engaged in unjustifiable conduct Hypo: H and W in PA, H moves to NY; parties agree (outside of ct) that W has custody and H can visit in NY; H now has kid in NY and keeps him for 3 months and brings custody action in NY; refuses to surrender child o Under UCCJEA: NY is not home state b/c parent not w/ child in NY for 6 months?? Under A(2), did kid and parent have significant connection to PA? Yes, b/c kid was w/ parent in PA for some time that would’ve been home state o New hypo: NY is home state but ct can still decline J. for father acting wrongly Hypo: there is court order and H kidnaps kid from W and moves to another state to get custody from there o Court order does not hold up in new state – no full faith and credit b/c court order is not for finality in state issued so you can modify child custody in state that didn’t issue 1st order o How can Oregon issue an order that modifies a PA order? Well PA is always allowed to modify for substantial changed circum So Oregon can say that if PA could modify it 3 years later, so can we
To prevent parent from kidnapping kid to another state and trying to get custody there UCCJEA says: o A ct may not modify a custody order of another state UNLESS Rendering state retains jurisdiction OR Rendering state no longer has exclusive continuing J 202: a ct of this state has exclusive continuing jurisdiction and maintains that J even if it’s no longer the home state o Only way to lose this exclusive cont J is thru a ct of this state or another state says that no one resides in rendering state – no parent or child lives in rendering state o 202(a)(1): can also lose J if rendering state says it lost J; like child is lost – nowhere to be found
Hague Convention – procedure on how to recover your kid if kidnapped to another state