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					          Today’s Lecture:




              Family Law 1




Session


  16
             Marriage: Getting Perspective

1. Critical questions …




                          Questions:
                    How many of you have
                     parents that NEVER
                          divorced?
Everyone
 Votes!
           1.   Still married, have never   0
                divorced.                   0
           2.   Not still married; they
                divorced.
             Marriage: Getting Perspective

1. Critical questions …




                                  Questions:
                          How many of you think that
                           marriage is a good idea –
                              something you are
                           planning for later in life?
Everyone
 Votes!
           1.   to be married someday. If I    0
                don’t get married at some
                point, it will be bad.         0
           2.   to not be married someday.
                It’s a trap.
           3.   to not worry about it either
                way. (I don’t care).
             Marriage: Getting Perspective

1. Critical questions …

                                   Questions:
                             What is the essence of
                             marriage? What is it all
                                     about?
What is the essence
  of marriage?


                      0
                      0
                      0
              Marriage: Getting Perspective

1. Critical questions …
   -- warning! (don’t take offense at this material)
2. Historical evolution/devolution of marriage
   -- three basic stages (or views)
 Sacrament to “God”                    Ideology of marriage?
   -- the way the creator wants you to life
   -- marriage as a sacrifice to the creator
    -- divorce is severely stigmatized in the culture
       (a sign of failure) (so is not becoming married)
   -- sometimes, you would have arranged marriages
          Marriage: Getting Perspective

-- patriarchy (paternalism)
   (women treated like children, husbands like their father)
   [their real father would “give away the bride” the new
   male]
   • “union of the souls,” surrogate rights
        -- you could only have rights through your surrogate
        -- “legal disability”
           • voting, suing, entering contracts
           • own/control property separate from the
           husbands
           • definition of rape
           Marriage: Getting Perspective

-- role tracking ..
                      His duty     Her duty
-- although most of this regime or ideology has been
dismantled, remnants of its influence are still present in the
                  support         serve
culture:
                      provide      be loyal
    • domicile (the husband choses?)
                      protect
    • women take on the men’s last names
    • father determines the surname of the child
    • women tend to get custody; men tracked into “support”
    • notions about alimony?
             Marriage: Getting Perspective


Legal Contract
   -- this is the more modern view (intermediate view)
   -- marriage has nothing to do with metaphysics
   -- it is a contract for association that is defined by the state
   -- marriage is a legal relationship, not a religious one
   -- how and what responsibilities flow from it is a function of
   contracting and agency principles
             Marriage: Getting Perspective


Temporarily “fun” living arrangement?
   -- sort of a cynical view
   -- marriage is only there to maximize short term happiness
   -- do it until it doesn’t feel good anymore, then get out it
   -- Hollywood marriages (Brittany Spears, etc).
   [ tell the story of the Catholic priest and serial marriages]
                Marriage, Gender, & Society

 Issue: What does family look
 like as culture changes?
                                  Multi-         Same sex
       #1               #2        partner?

                                  • Women and men are the
                                  same
                     Legal
                        • Women are “special,” distinct
  sacrament                             gratification
                     relationship • Gender is a “social
                        • Women and Men are not the same
                                  construct”
                       • Women need their ownlearned
                                   • Behavior is rules
                                                  Serial
                       • Women have their in completely
                                   • Placed own needs,
 Essentialism                                     marriage
                   Egalitarianism identical circumstances,
                       expectations and sphere
                                   there would be identical
                       • Behavior is innate
Time
                                   behavior
            Science of Specie Attraction

1. important question?
                                  Question:
                            What is love from the
                           standpoint of science?
What is love from
the standpoint of
    science?

                    0
                    0
                    0
             Science of Specie Attraction

1. important question?
   Anthropology:
   • break-ups in all cultures seem more prevalent after four
   years
   -- dopamine
       (divorce lawyers: “the seven year itch”)
                               “chemical cousins
       -- divorce rates are now at 50%
   -- norepinephrine           of amphetamines”
   Brain Science
   -- oxytocin                         Humans = about 4
                                       years
   • neurotransmitters: (brain chemicals)
   • Brain scans of people/animals “in love” – chemicals are
   present, but leave after a period of time
                Science of Specie Attraction

2. “love” provides the brain with a chemical “bath” that is not
unlike the kind of physiological process that occurs then the
Brain has a “high” from certain drugs
Rodent Study (different study)
     [mention depression, serotonin & chocolate]
  The Love High
A recent study performed at Emory University shows that female
     -- “love” raises choose their mates the sensations may be
  Further studies show that gushy romantic brain
voles (small rodents)dopamine levels in in response to dopamine
  similar to the highs drug addicts feel when they’re under the
being released their brains. When injected with dopamine in a
     -- frontal cortex is activated during romantic love
  influence. Nora Volkow, the associate director for life sciences at
male vole’s presence, the female will pick him out of a crowd later.
  Brookhaven National Laboratory in New York, has analyzed the
     Example: drug injected with oxytocin
  behaviors of Mice addicts and people in love and found striking
  parallels they found mates right away;
          --
        -- when they injected chemicals that blocked oxytocin,
        they strongly avoided their partners
              Science of Specie Attraction

   -- photo study
3. the point is, at some point, the chemicals don’t seem to
   appear any more (they go away)

Photo Study

Scientists showed humans photos of their lovers – they found
that four small areas of the brain instantly “lit up.” (It is the
same areas that respond to euphoria-inducing drugs).


                                            Question:
                                   Why am I telling you this?
Why am I telling you
      this?


                       0
                       0
                       0
              Science of Specie Attraction

   -- photo study
3. the point is, at some point, the chemicals don’t seem to
appear any more (they go away)
4. marriage is a tough proposition
   -- difficult to wake up to the same person year after year
   -- maybe we should stop thinking of a marriage as “failed” if
   it lasts 7 years and produces a good kid. Maybe that is
   actually a success?
   -- divorce is something that many of you will face
   [note: caveats to those marriages that last. Stress the
   limitation of science as a method of inquiry]
            The Legal Formation of Marriage

1. To form a marriage, you need certain legal formalities:
      A legal ceremony                     Question:
      An exchange of vows          What does a defense to
      No defenses                 the formation of marriage
                                          get you?
   What does a
defense to marriage
     get you?

                      0
                      0
                      0
            The Legal Formation of Marriage

1. To form a marriage, you need certain legal formalities:
      A legal ceremony
                                           Answer:
      An exchange of vows
                                    An annulment, not a
      No defenses                        divorce
            The Legal Formation of Marriage

1. To form a marriage, you need certain legal formalities:
      A legal ceremony
                                          Question:
      An exchange of vows
                                   What is the difference,
      No defenses
                                      theoretically?
     What is the
difference between
      the two?

                     0
                     0
                     0
            The Legal Formation of Marriage

1. To form a marriage, you need certain legal formalities:
      A legal ceremony
                                            Answer:
      An exchange of vows
                                 If you get an annulment, the
      No defenses
                                  marriage never happened;
                                    if you get a divorce, the
                                    marriage happened for a
                                          period of time

                                    Example, Mick Jagger
            The Legal Formation of Marriage

2. There are several common-law defenses to the
FORMATION of marriage.
   -- we will look at only four
   -- because they are based upon the common law, each
   state may have amended them. Consider these “general
   rules”
   -- remember these grounds, if proven, give you an
   annulment not a divorce
          The Legal Formation of Marriage


polygamy
 -- you have another living spouse from a marriage that was
 not terminated
impotency
                          There are “defenses to the
 -- must be incurable, not matter if naturally or artificially
                          defenses”
 caused
 pregnancy                  (e.g., condonation)

 -- wife is pregnant by someone other than the spouse at the
 time of marriage
Criminal conviction
 -- an infamous offense that the spouse did not know about
                 Grounds for Divorce

1. Once a marriage is lawfully formed, the only way to end it is
with divorce or death.
2. In the old days, you needed CAUSE to get a divorce
   -- you couldn’t just get one at your election; you had to
   show that your spouse did something wrong
   -- in theory, you could sue for divorce and lose; the judge
   would make you stay married
   (hence the expression, “I won’t give you the divorce”)
3. This is no longer the case. Anyone can get divorced just
because they want to (e.g., brain no longer “lights up”)
                 Grounds for Divorce

4. There are three types of grounds for divorce:
      Fault-based            Non-fault based
   -- fault-based divorce may be able to get you additional
   things, such as “alimony” or “punitive alimony” [explained
   later]
   -- but, as a general rule, there really is not much difference
   today between a fault and no-fault divorce
   … let’s examine the fault-based grounds more closely
               Grounds for Divorce


Adultery    (Fault based)
 -- having sex with someone other than your spouse
 -- proof requires corroboration [hard to prove]
 -- if proved, alimony is forfeited
   Specific defenses
 (1) voluntary cohabitation (“sex”) after knowing about it;
 (2) more than 3 years old at the time of the filing
 (3) “unclean hands” [the other side did it, too]
     (-- but must be uncondoned & within 3 years!)
               Grounds for Divorce


Extreme Cruelty    (Fault based)
  (ordinary cruelty is not enough!)
  definition: continued cohabitation in the relationship is such
  a risk to physical safety/mental health, to render the
  situation unsafe or unendurable
  (cannot be based upon denial of sex)
   Specific defenses
  -- provocation
               Grounds for Divorce


Extreme Cruelty    (Fault based)
  (ordinary cruelty is not enough!)
  definition: continued cohabitation in the relationship is such
  a risk to physical safety/mental health, to render the
  situation unsafe or unendurable
                                      Question:
  (cannot be based upon denial of sex)
                      What if Peg Bundy sued Al Bundy
    Specific defenses
                         for divorce, alleging extreme
  -- provocation      cruelty as the grounds? Would she
                            win on those grounds?
                 Grounds for Divorce


Desertion     (non-fault based)
 -- two types:
  actual
 Definition: six continuous months with intent to terminate
 the marriage
  constructive
 1. you are physically present in the dwelling
 2. but not having sex for six continuous months
 definition: willful, total and unjustifiable suspension of all
 marital duty and relationship
                Grounds for Divorce


“Separate and apart”    (non-fault based)
  -- living separate and apart
  -- 1 continuous year, without interruption
  -- no sex
Irreconcilable Differences   (non-fault based)
  1. BOTH parties agree that the marriage is irretrievably
  broken
  (usually has to be admitted in the pleading)
              Application


Assume we have two people who are married




    Ben                     Sally
                        Application

                          Question:
               If you were Sally’s lawyer, what
                    would you advise her?
Won’t agree
   to it
                                                  Wants the
              Ben                      Sally       divorce
What would you
 advise Sally?


                 0
                 0
                 0
                       Application


    Bad Advice:
    • have an affair, or be extremely cruel
Won’t agree
   to it
                                               Wants the
              Ben           Question: Sally     divorce
                     Why is this bad advice?
Why is this bad
  advice?


                  0
                  0
                  0
                         Application


    Bad Advice:
    • have an affair, or be extremely cruel
Won’t agree
   to it                        Answer:            Wants the
              Ben                       Sally       divorce
                  (a) it doesn’t’ work -- it gives HIM
                        grounds, not you! (duh).
                         Application


    Bad Advice:
    • have an affair, or be extremely cruel
Won’t agree
    • commit desertion
   to it
                                                  Wants the
       (stop having sex while living together)
            Ben                         Sally      divorce
       (announce your intention, leave for 6 months & file)

        Rhetorical Question:
       Why is this bad advice?
                                   Answer:
                     (a) it doesn’t’ work -- it gives HIM
                           grounds, not you! (duh).
                         Application


    Bad Advice:
    • have an affair, or be extremely cruel
Won’t agree
    • commit desertion
   to it
                                                   Wants the
       (stop having sex while living together)
            Ben                           Sally     divorce
       (announce your intention, leave for 6 months & file)


                                       Question:
                          What would be good advice?
Why is this bad
  advice?


                  0
                  0
                  0
                         Application


    Bad Advice:
    • have an affair, or be extremely cruel
Won’t agree
    • commit desertion
   to it
                                               Wants the
           Ben                         Sally    divorce
    Good Advice
       1. move out for one continuous year, no sex.
    THE POINT: anyone can get a divorce these days.
    One side can no longer block it.

     Mention “power-play:” get the guy thrown out of the
     house
                  Equitable Distribution

-- Having just examined the grounds for marriage, annulment &
divorce, let’s look at the consequences of divorce
-- The legal consequences are primarily financial
-- consider these two scenarios …
Scenario-1:                         Scenario-2:
A CEO of a self-made                Paul McCartney is worth
corporate giant divorces            $500 million. He divorces
his wife after 30 years of          his wife after 4 years of
marriage. He is worth               marriage. What should
$500 million. What should           she receive?
she receive?
CEO or Paul
 McCartney


              0
              0
              0
                  Equitable Distribution

-- possible solutions
   • The person who created the wealth gets to keep it? [value
   creator logic?] [capitalism logic?]

                                           Question:
                                  What do you think about
                                           that?
Everyone
 Votes!
           1.   I agree with that.          0
           2.   I do not agree with that.   0
                  Equitable Distribution

-- possible solutions
   • The person who created the wealth gets to keep it? [value
   creator logic?] [capitalism logic?]
   • Pay each according to the market value of the labor during
   the marriage [employee logic]

                                         Question:
                                  What’s wrong with this
                                          one?
Everyone
 Votes!
           1.   I agree with that.          0
           2.   I do not agree with that.   0
                   Equitable Distribution

-- consider this scenario:
-- notice that there may be a cognitive picture inside your head
at the time you think about these scenarios …

Scenario-3:
Burt Reynolds marries Lonnie
Anderson. Burt goes bankrupt
during the marriage. Lonnie is doing
fine. How much money should
Lonnie have to pay for Burt’s debts?
Scenarios 1 and 2




                    Scenario 3
                  Equitable Distribution

-- how the law generally resolves this
 Partnership-logic
   • your spouse is your partner, not an employee
   • anything of value that accrues during the time of marriage
   is split 50-50, unless there is an agreement to the contrary
   (prenup)
   • this is the way that all partnerships work (e.g., running a
   bar or business)
   • However, the logic of this means that any debt or loss
   accrued by the partnership should also be split 50/50 (if we
   are applying this principle fairly)
   (accounting principle: liabilities follow assets)
                  Equitable Distribution

Equitable Distribution
   -- majority of states use this idea
   -- only MARITAL property is split 50/50; some property is
   not “marital,” it is separate
   .. Let’s take a look
            Understanding the Marital Estate

                    Several exceptions!


                         T-1


                       Date of
Separate property                         Marital property
                       Marriage
            Understanding the Marital Estate

                    Several exceptions!


                         T-1


                       Date of
Separate property                         Marital property
                       Marriage
    “Commingling”                         inheritance gifts




                                    Putting the funds into
                                    the marital estate
             Understanding the Marital Estate

                 Several exceptions!


                       T-1
 Example:
 • putting separate funds into
 a joint checking account of
                      Date
Separate property                      Marital property
                      Marriage
     “Commingling”
 • anything where both sides
 have control over the asset



                                  Putting the funds into
                                  the marital estate
            Understanding the Marital Estate

                    Several exceptions!


                         T-1


                       Date of
Separate property                         Marital property
                       Marriage
    “Commingling”                         inheritance gifts




                                   Unless “commingled!”
             Understanding the Marital Estate

                  Several exceptions!


                         T-1
             Question:
     Is it more valuable to get
Separate an annulment or a of
                      Date
          property                      Marital property
                     Marriage
              divorce?



       “Commingling”              inheritance        gifts
Everyone
 Votes!
           1.   Annulment   0
           2.   Divorce     0
             Understanding the Marital Estate

                  Several exceptions!


                         T-1
             Question:
     Is it more valuable to get             Answer:
Separate an annulment or a of
                      Date
          property                     Marital property
                     Marriage
              divorce?                In theory, annulment
                                     [mention Mick Jagger]


       “Commingling”              inheritance     gifts
            Understanding the Marital Estate

                 Several exceptions!

           Question:
                       T-1
   Assume Al Davis bought
    his football team during
     marriage. In divorce, of
                      Date
Separate property it?
          who owns Marriage            Marital property




       “Commingling”            inheritance         gifts
Everyone
 Votes!
           1.   Wife is owed ½ of the      0
                team’s market value        0
           2.   Wife has no claim to the
                team
              Understanding the Marital Estate

                  Several exceptions!
                  Question:
                        T-1
        Assume that you buy a new
       car during marriage and title it
          in your own name. Your
                       drives
        spouse never Date ofit. Who
Separate property it in divorce?
             owns Marriage              Marital property




        “Commingling”             inheritance        gifts
Everyone
 Votes!
           1.   Spouse is owed ½ of the   0
                car’s market value        0
           2.   Spouse has no claim to
                the car
             Understanding the Marital Estate

                  Several exceptions!
                   Question:
         Assume you buy a house one
                         T-1
          day before you get married,
        and both you and your spouse
            live in it. Who owns it in
                        Date of
Separate property divorce?             Marital property
                        Marriage



        “Commingling”            inheritance        gifts
Everyone
 Votes!
           1.   Spouse is owed ½ of the   0
                house’s market value      0
           2.   Spouse has no claim to
                the house
             Understanding the Marital Estate

         Question:
                Several exceptions!
  Let’s say your spouse gets
 into an auto accident during
                        T-1
    divorce and gets a tort
  settlement. Who owns it in
           divorce?
                       Date of
Separate property                     Marital property
                      Marriage



       “Commingling”             inheritance       gifts
Everyone
 Votes!
           1.   Spouse is owed ½ of the   0
                settlement                0
           2.   Spouse has no claim to
                the settlement
             Understanding the Marital Estate

         Question:
                Several exceptions!
                                          Answer:
  Let’s say your spouse gets
 into an auto accident during    Trick Question! There is a
                        T-1       special rule for personal
    divorce and gets a tort
  settlement. Who owns it in           injury awards
           divorce?
                       Date of Personal injury awards:
Separate property                     Marital property
                      Marriage • economic loss is marital
                               • non-economic is separate

       “Commingling”            inheritance         gifts
                  Equitable Distribution

“Marital debts”
  -- whether a debt is “marital” is determined using the same
  principles as for an asset
  -- however, there is an additional rule here that is a vestige
  of the past and that is rather unfortunate
   The doctrine of “waste”
  -- if the debt is considered “waste,” it belongs solely to the
  spouse that incurred it
  Note that there is no corollary principle for assets.
  (The one who created the excess keeps it)
                  Equitable Distribution

Let’s say the husband has
 “Marital debts”
gambling debts of $10,000. Who
   -- whether debt is them using
should have ato pay “marital” is determined using the same
    doctrine of for an asset
theprinciples as waste?
   -- however, there is an additional rule here that is a vestige
   of the past and that is rather unfortunate
    The doctrine of “waste”
   -- if the debt is considered “waste,” it belongs solely to the
   spouse that incurred it
   Note that there is no corollary principle for assets.
   (The one who created the excess keeps it)
                   Equitable Distribution
Let’s say the wife has credit card
charges for excessive spending at
  “Marital debts”
the shopping mall ($50,000). Who
    -- whether to pay “marital” is the
should have a debt is that usingdetermined using the same
    principles as for
doctrine of waste? an asset
    -- however, there is an additional rule here that is a vestige
    of the past and that is rather unfortunate
     The doctrine of “waste”
    -- if the debt is considered “waste,” it belongs solely to the
    spouse that incurred it
    Note that there is no corollary principle for assets.
    (The one who created the excess keeps it)
               Equitable Distribution                Time


-- historically (and perhaps contemporaneously), the
doctrine of waste tends to disfavor men. Bad leisure
expenses are more likely to be born by men alone, not
making women pay for them (just a tendency).
(there still is a degree of gender bias and patriarchy in the
system)
-- also, the doctrine of waste is a contradiction. They are
using different accounting principles for liabilities and
assets. If Enron did this, it would be a kind of fraud. The
same rules that divide assets should apply to liabilities

				
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