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17

VIEWS: 44 PAGES: 29

									          Today’s Lecture:




              Family Law 2




Session


  17
Everyone
 Votes!
           1.   My goodness, they were        0
                better than sex               0
           2.   They were alright
           3.   I didn’t really like them
           4.   They are the worst thing in
                the history of the world.
Everyone
 Votes!
           1.   True    0
           2.   False   0
               The Marital Term & More
                 Complicated Issues

-- Having just examined the principles of equitable distribution,
we now need to add another aspect.
-- When does the marriage end for equitable distribution
purposes?
   The starting point:      Proper exchange of vows
 The ending point:       Not as clear
   1. The point where the marriage is “irretrievably broken”
       (the straw that broke the camel’s back)
   2. Typically, this is:
       (a) the point of filing
       (b) the point of separation
          Understanding the Marital Term




  T-1       T-2


Freedom    Vows
          Understanding the Marital Term


                     adultery    separation      filing

  T-1       T-2


Freedom    Vows
                                  Answer:
                       This point is litigated! Judge
                                 Question:
                                 Question:
                           decides under clearly
                       When does the marital estate
                                     and abuse of
                          erroneous Asset Growth!
                          Why is this important?
                       end for equitable distribution
                        discretion standard. Should
                                 purposes?
                          be the adultery (without
                            knowing more facts)
          Understanding the Marital Term             Lottery!!

Time               sex           sex                sex

        adultery         abuse         separation         filing

 T-2


Vows
                                  Question:
                                   Question:
   Debts going down
                                   Answer:
                       Assume your are a lawyer for
                                   you
                   Assume thatthat you are a lawyer a
                                     Answer:
                                    Question: Age-
                               of Question:
                  [Mentionmale who isclient. to get
                       rich a debt-heavygoing She
                        for the Long straw that broke
                         At “after won’t separation.
                  mismatch. She thethe sign Anything
                                            couple.
                           is [Mention student loans]
                     If itWhen point of filing. a prenup.
                    married. about hitting the lottery?
                                 does      marital estate
                       Whenyou shortly after T-2 and
                  Advice]. advice wouldsincegive
                        calls valueback” (as indicated
                            camels gained you the
                      theend for equitable distribution
                            of
                       What for advice, what would
                         asksvows are split 50-50
                             above),his finances and
                                     it
                         regardingyouis separate
                                    purposes?
                                        say?
                      purchasing the marital home?
                          Alimony


-- Has nothing to do with marital property. It is not a property
concept. (Not something that is “mine, yours”).
-- It is sort of like “welfare”
-- it originated in the patriarchal era of marriage, but is now
pretty much a gender neutral concept
-- but it is on its way out (dying). Alimony is much harder to get
today because of the gender revolution and because marriage
is now so different
-- intended goal: preserve the living standards of the
economically-dependent spouse. (Whatever standard of living
he or she is used to)
                       Alimony


-- Three kinds of alimony:
    Punitive alimony
   -- used for fault based divorces.
    Temporary alimony
   -- also called “rehabilitative” alimony.
   -- given for a temporary time period so the spouse can get
   back on his or her feet (sometimes given for college).
    Permanent alimony
   -- extremely rare these days. One side pays the other for
   life.
                       Alimony                             Time


-- Alimony is awarded based upon the following factors:
   (a) length of marriage
   (b) fault-based divorce
   (c) need for rehabilitation (wants to go to college, etc)
   (d) comparative health of the parties
   (e) inequities that exist after equitable distribution!!!!
                      Child Custody

1. The concept of “custody”
       -- placed into some else’s rule [explain jail]
2. Four basic legal viewpoints throughout history
   The Patriarchal View
   -- women are the natural child custodians. “The great
   nurturers.” This view dominated in the 1800s.
   -- women should receive custody by virtue of their ascribed
   gender role
                      Child Custody


“The Best Interest of the Child”
  -- not a test, it is a conclusion
  -- there are factors and standards that are used, but
  ultimately the “best interest” standard is simply a conclusion
  the judge makes about who he/she thinks would be better
Primary Caretaker
  -- developed in reaction to the best-interest standard. This
  was thought to be less result-oriented
  -- you get custody if you are already providing the primary
  nurturing care of the child [explained in a moment]
  [mention that the best interest test used caretaking as a
  criteria, but not necessarily controlling]
                     Child Custody


“Shared Parenting”
  -- neither is the custodian; parenting is shared. [explained
  later]
                      Child Custody

-- Having looked at the four options, let’s examine the primary
caretaker standard more closely
 Primary Caretaker:
                                       Answer:
   -- basic idea: whoever is doing the nurturing care of the
                         Seems
   child should continue to do it. quite sound outside the
                                      Question:
                           nuclear family. But inside, is an
   -- “Iron rule” for young children; “strong presumption” for
                                  Is this period all that
                            adjustment a sound idea? bad
   children between 6 and 13.
                           so long as you are adjusting to
                                    your get to elect which
   (in many states, children 14 or overother parent
   parent they want to live with)
                      Child Custody

The official test:                       Answer:
A. Food      Preparing or planning meals   Question:
                              Might be a little heavy on
B. Clothing Purchasing, cleaning, taking care of wrong
                          homemaking labor. What about
                                  Is there anything
C. Hygiene                       facilitating the
                 Bathing, Grooming, Dressing child’s
                                      with this criteria?
         Nursing functions, trips to physicians offices, etc.
                           competition and motor skills?
D. Medical Care           (coaching the team, throwing a
                      Arranging for interaction among peers,
                             for baby sitting What about
                  Arranging baseball, etc.).and house, to
E. Social Interaction transporting to a friend’s day care; a
                               club scout character or
               putting the childinstilling meeting, etc
                                  to bed at night; attending to
F. Caring
                                   decisiveness? Etc.
                the child in the middle of the night; waking
                         Informing about and facilitating
G. Discipline              the child up in the training,
                     Teaching manners, toilet morning etc
                            religion, culture, social issues,
H. Education                etc; teaching elementary skills,
                              helping with homework, etc
I. Other
                      Child Custody

-- Having looked at primary caretaking, let’s look at the new kid
on the block

  Shared parenting
   -- Parenting is shared. Neither parent gets “custody”
       Note how offensive the idea plan” to the court
   -- You have to submit a “parenting of “visitation.” That all
       the parent is, is a “visitor.” Prisoners get visitation,
       A. number of overnights
       not children.
       B. sphere of authority
       C. [explain your parenting plan]
           -- regular contact [mileage, distance]
           -- custodial authority during my time.
           (have a look at how wonderful she turned out)
                         Child Custody

       -- if litigated, parenting overnights based upon:
          A. Primary Care Taking Standard [unfortunately!]
          B. “Special bond”
       -- Basic idea: men are trying to get into the nurturing game,
       just as women shed their ascribed roles and went into the
       “provider” game




Time
              Family Transfer Payments

-- Having looked at “custody,” let’s examine what others call
“child support.”
                                        Question:
(We’ll use a different vernacular: “family transfer payment.” This
                                     How from should a
is what it actually is -- transfer paymentlarge one spouse to
another)                               family transfer
                                      payment be?
            Will law (unfortunately) will in annual
             in                      $0
  $1 millionThe be designated the primary
 annual income one parent to dominateincome
            allow
            physical “custodian”
  (pro-football
    athlete)
  Parent #1                              Parent #2


                    Frodo       • food
                                • clothing
                                • school books
       Question:
       Question:
        Question:               • medical insurance
    Should should
How much Frodo’sbe
                                • child care?
   What is the be the
 awarded caremoney
 financial to Frodo’s
        spent on?
     “custodian?”
    same as that for            • activities, etc.
   ordinary children?
              Family Transfer Payments

-- There are three possible (theoretical) answers as to how
much money should be transferred:

   1    Transfer to the primary “custodian” only what is
        minimally required to raise a child (government
        welfare guidelines) The Basic Need
        Transfer to the primary “custodian” what would have
   2         Answer:
        been spent on the child but-for the marital breakup.
             Question:
        (child support as expectation). The Expectation
    Is there anything already
 Involved fathers are wrong
  spending directly to enrichof your lifestyle to the primary
        Transfer a option??
     with this lastpercentage
   3 “custodian” lives support as standard of living)
         their kids (child
                                           Standard of Living
let’s look at some high profile cases …
Mick Jagger
              -- Brazilian Model
              -- 7th child???
              -- She has a strong market
              potential
              -- He has waaay to much
              money
              -- She sued for $35,000 a
              month
              -- Court temporarily ordered
              $10,000 a month
              -- He was asking to lower it to
              $5,600.00 a month
              -- They settled out of Court
                                     • Hooks up with a professional
       Kirk Kerkorian                tennis player (blonde) who was
                                     about 48 years younger than he
                                     was. (Lisa Bondra)
                                     • a child was born in 1998
                                     • In 1999, a prearranged 30 day
                                     marriage ceremony was
          the expenses               performed because Lisa wanted
                                     to “legitimize” the child.
• $144,000 monthly travel
                                     • Kerkorian voluntarily began
• $14,000 monthly for “play dates”
                                     paying $20,000 a month.
• $7,000 monthly for charity
                                     • He later raised it on his own to
• $102,000 monthly for food          $50,000 a month.
• $1,400 monthly for laundry         • When the child is 3, she
                                     petitions to raise the support to
• $1,000 for videos and books
                                     $320,000 a month
• $436 for care of the pet bunny
 Kirk Kerkorian             The Rest of the Story

                         • During the Court battle,
                         Kerkorian hires a private
                         investigator, Anthony Pellicano
                         • Pellicano obtained a piece of
                         dental floss from Stephen Bing’s
                         trash and proved with DNA
                         evidence that Stephen Bing was
                         the real father of the child
                         • After this revelation, the Court
 The doctrine of the     ordered the support be $50,000
“psychological father”   a month.
An Important     Legions of men
question …


       Female




                 Question:
            What incentives does
             this family transfer
              system create for
Time               gender?
                        Reform


 Fatherhood
There is an interesting question that the custody and support
regime raises --
Notice the labels that are applied to dads:Question:
                                        Question:
   • “deadbeat” dads.           What is fatherhood (define
                               Is being a good father
   • “Disneyland dad”           it), being a value is it?
                             merelyand whatgood check Is
                                    it equally valuable as
   • postcard father?         sender to a birthmother?
                                         motherhood?
   • Note how demeaning the concept of “visitation” is. Is that
   all that fathers do – they “visit?”
                        Reform


 Shared Parenting
-- No one has “custody” or a monopoly on spending for the
child’s welfare
-- Involved fathers can increase the standard of living directly,
without going through a “custodian” or an intermediary.
-- “Dead beats” are already very severely punished
       -- No bankruptcy
       -- lose Drivers License
       -- Contempt
       -- Jail (for most egregious)
            Each parent oftransferdirectly for
            offsets theshould be no payment is
                            spends domination;
       This TheInstead amount of money that has to be
               … cost of the allowing one
                 there
        discounted One of extent of overnights and
            the person toside doesn’t
               parenting is the child during his
                welfare
       transferred. by thedominate … have a monopoly
                            shared
            or money child rearing.
       over theher time or the care.
                     direct

       Parent #1                        Parent #2


                       Frodo




Time
                     Final Thoughts

1. a dreaded transaction
   -- Fee for service work
   -- clients need therapy
   -- brings out the worst in the lawyers
2. system of judging may be too discretionary
   -- no juries, no meaningful appellate review, the big issues
   are decided under abuse of discretion and clearly
   erroneous standards.
3. Growing Bureaucratization
       -- “child support bureaus”
       -- growing level of codification
                            Final Thoughts

       4. More use of mediation
       5. More “pro se” filings (packets tend to be available at the
       courthouse)




Time

								
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