Family Law

(Note order: Non-Marital Cohabitants; Pre-Marriage; Marriage; Ending Marriage; Jurisdiction &
Venue)
Establishing the Marriage
 Marriage is a fundamental and constitutional right.
 No state can enact a statute or ordinance that infringes the rights to marry.
o If they do, the State must be able to come forward and show a compelling reason to
create that law.
 Redhale v. Wisconsin: said men or women who owed child support couldn’t
remarry until paid. Supreme Ct. said this wasn’t going to fly.

 Court will confirm the law to the agreement of marriage from the state where it was signed
into effect.
o “Choice of Law”
 Lex Loci: If a marriage is valid at the place where it was validated, it is valid everywhere in
the U.S.
o Unless the place they are seeking the marriage to be valid has strong public policy
against such.

Prenuptial Agreements
 Binding contracts
1. Must include:
 All elements thereof within the documents presented and signed by the party.
 Full disclosure of all their assets as well as the fair market value of them;
 This is the most important element.
 And/or a waiver that the document in its entirety is fair to both parties;
 And that both parties had the opportunity to obtain their counsels.
 Consideration is needed, but such is essentially the agreement to marry.
 Uniform Premarital Agreement Act § 6
(a) A premarital agreement is NOT enforceable if the party against whom enforcement is
sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the
agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial
obligations of the other party (“Exhibit A”);
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of
the property or financial obligations of the other party beyond the disclosure
provided; and
(iii) did not have or reasonable could not have had, an adequate knowledge of the
property or financial obligations of the other party.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that
modification or elimination causes one party to the agreement to be eligible for support
under a program of public assistance at the time of separation or marital dissolution, a
 court, notwithstanding the terms of the agreement, may require the other party to provide
support necessary to avoid that eligibility.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a
matter of law.
 Parties must have the capacity to contract.
1. Minors are the most likely client.
 Minors marriage is voidable until she reaches the age of majority and a
reasonable time thereafter.
 Contract must be for lawful purposes.
 Best used for:
1. Determining who has right to what property.
 Includes things purchased jointly and/or brought into the marriage.
2. Cannot interfere with the rights of children.
3. Statute of Frauds still applies.
4. Planning what will happen at your death.
 Shouldn’t be created to induce divorce
1. Ex): “at divorce, wife gets $10 Mill and Husband gets $5mill.”

Common Law Marriage

 Two parties intent to marry are validly married, pursuant to state law, if:
o Hold themselves out as married;
o Openly co-habituate;
 Reputation in the community is a factor of this.
o Intent to marry in the present and going forward.
 May apply to Lex-Loci
 Must establish clear and convincing evidence.
o Proof or evidence could include:
 Joint tax returns;
 Shared insurance;
 Nest approach is to establish a paper trail
o Utility bills, joint tax returns, joint health insurance, etc.
 Marriage by Estoppel
o Only real difference between this and CL marriage, is that they have gone through a
ceremony.

3 Basic Remedies for someone who is Unhappily Married:

 Legal Separation: Still married, living apart.
 Annulment: arises when a certain impediment existed at time of marriage.
1. Requires an impediment at time of marriage
2. 2 Types of Impediments:
 Void ab initio (Void)
 A party was insane
  Incest/Consequentity/ Affinity
 Bigamy
o The law presumes people don’t commit bigamy.
o The last in time spouse is presumed to be the lawful spouse.
o Earlier wife must prove the marriage never ended.
 Voidable
 Fraud/Essence of the marriage
o (1) material false statement
 (actor must know the statements were false)
o (2) with intent to deceive
 (or deprive a legal right)
o (3) victims reasonable reliance
o (4) damages
 (actual: benefit of the bargain and punitive damages)
o Janda v. Janda & Haacke v. Glenn
 Duress
 Temporary Incapacity to marry due to drunkenness or drugs.
 Physically Incapacity >> “no sex”; (Only case is 7 L.R.A. 425)
 If the wife is pregnant at the time of the marriage and the husband
didn’t know, in addition to him not being the father.
3. Defenses:
 If you marry knowing the impediment, then you are consenting.
 Ratification
 Became aware and continued to be married.
 Laches
 Most common equitable defense.
 When party rests on the issue for so long that it creates detriment on
the other party.
4. Monetary Interest: No permanent alimony can be awarded.
 Return to Status Quo: “Get what you brought it”
 Marvin Remedies apply
 Divorce
Divorce Grounds
1. Incompatibility
 Couple is not getting along well enough to stay spouses.
 Must come forth with clear and convincing evidence of the incompatibility in
other states.
 But here in AL, small specks of proof are sufficient. Fault Based
Divorce
2. Fault Based Grounds for Divorce:
 Adulatory
 Requires clear and convincing evidence.
 Don’t file immediately, need a cool down period.
 If adulatory exists, and the partner receives and STD from the act of
the other partner’s adulatory, the divorce complaint can consist as:
o Count 1: Divorce
 o Count 2: Battery
 Cruelty
 Act of actual violence that would tend to cause serious bodily harm.
 Pattern of conduct that would leave a person to believe they were
going to receive serious bodily harm.
o Pattern of conduct: Frequently found on smartphones.
 Addiction (after marriage)
 Opiates
 Alcohol
 Abandonment/Desertion
 Filed departure with intent not to return, for at least one year.
 Before incompatibility, most popular.
 Incurable Insanity
 One party becomes committed;
 stays there for 5 years;
 and superintendent has to certify they are certifiably insane.
 Imprisonment
 AL: must be more than 7 year sentence; and
 Must have already served 2 of the 7 years.
 Divorces Defenses:
1. Connivance
 Defense to Adultery
2. Collusion
 Couple agreeing to commit fraud.
3. Condonation
 Condoned the act (affair)
 Any fault-based ground
 Victim has full knowledge of the ground but they intent to remain in the
marriage.
4. Recrimination
5. Note: there is no defense to incompatibility.
 “Lesser Fault Based Grounds”
 Abandonment: A party has left the other without any intention to return for a minimum of
One (1) year.
 Settlement
 Get the best settlement for your client.
 Top reasons for Divorce
1. Hate
2. Children
3. Money
a. “Fixed Pie” of their assets; nothing else can be poured into it. You must
stuff the fixed pie with things to be divided by the divorce.
b. “Separate Property” would be the things outside of the items discussed in
the divorce.
 i. Gifts: Any gifts given from husband to wife or vice versa can be
argued by the receiving party to be separate property.
ii. Prior-Owned Property: cannot be included in divorce because it
was owned before the parties came to be married.
iii. Inherited: Property received by one party in the marriage by
inheritance will stay with the receiving party.
1. Unless that property, or the dividends from that property,
have been used regularly.
a. (Must use the word regularly on exam).
c. Most jurisdictions are Equitable Jurisdiction States

Jurisdiction
 Over the marriage
1. Both spouses domiciled in same state.
2. The Plaintiff will have to establish a 6 month residency requirement, unless they both
live in AL.
3. If other spouse does not live in the same state, can establish jurisdiction by proving
that significant contacts exist. (Personal Jurisdiction)
 Must be served by someone who practiced in that state.
4. Alabama will take jurisdiction only so far as to grant divorce.

Finances
1. Alimony
a. Periodic Alimony/ Permanent
i. One purpose: spousal support.
ii. Need: Bills/Net Income; and Ability to pay.
1. Heightened expenses
iii. Modifiable
iv. Must prove material point of change in economic circumstances
1. File petition to terminate//change
v. Taxable event
1. Depending on tax bracket
vi. Terminate Abruptly
1. Death of payer
a. Insure his life payable to her in event of his death.
b. Payee openly cohabits with member of opposite sex.
c. Remarries.
vii. Must look at factors such as:
1. Duration of the marriage.
2. Health of the parties.
3. Station in life.
a. How did they live before they divorced?
4. Earning propensities.
5. The future aspects of both parties
6. The conduct of the parties regarding the cause of the divorce.
 b. In gross/ lumped sum alimony
i. Distribute the estate equitably.
1. May be no other way to do this than to order one party to pay the
other.
2. “Sum certain to be paid at a certain time.”
ii. Characteristics:
1. Not modifiable.
2. Non-bankruptable.
3. Non-taxable.
c. Rehabilitated Alimony
i. Identical to permanent except there is an end date
ii. Purpose is to support during a specific event.
iii. Modifiable and ends with death.
2. Equitable Distribution
a. Court takes testimony to circumstances leading to divoce.
b. Exception:
i. Separate property – outside marital property (also in community property)
1. Gift
2. Ownership prior to marriage
3. Inherited
ii. Defense: - UNLESS the property has been used regularly for the common
benefit of both spouses. (must use the word regularly)
c. Retirement Accounts: stands as marital property unless a prenuptial agreement
says otherwise, subject to equitable division.
i. Couple must be married for 10 years
ii. No more than 50% can be divided.

Best Interest of the Child (The Alabama Relationship Parent Child Protection Act)
1. The court is off task if the case won’t settle when determining what is in the best interest
for the children.
a. Ex Parte Divine gives a list to guide such a determination.
i. Gender of the child
ii. Characteristics of the child
iii. Court prefers that each child has their own bedroom.
iv. Prefers unrelated members of the opposite sex to not live in the home with
the children.
v. A “full house” is also a negating factor.
vi. The respective age of the parents.
vii. Clean home, inside and out.
viii. Stability of each parent.
ix. The interest each parent was able to show for the children before the filing
of divorce.
x. If there is an obvious primary care giver.
2. Judge has to order: (with a compelling reason)
a. Sole Custody/Visitation
i. It is presumed to be best for the child to see both parents.
 b. Joint Legal and Physical Custody
i. Generally, parents must be in the same school district.
c. Primary Physical and only one parent has legal custody.
d. DHR: If the court concludes neither parent is fit, it can order the child into foster
care.
3. When custody has been declared, and is not working well, you can file a petition to
modify custody.
a. Could also ask for a Psychological Evaluation.
b. Alabama works by the McClendon standard.
4. Expert witnesses are allowed.
a. Judge may call upon expert witness, such as:
i. an officer of the law;
ii. a child psychologist;
iii. or guardian at litem.
b. It is always in your best interest to hire your own expert.
5. If custodial parent moves away,
a. then parent has duty to notify the other parent:
i. Where the child will live;
ii. Phone number;
iii. Where child will go to school;
iv. Reason for moving.
b. Non-custodial parent has 10 days to file an objection.
i. A hearing is scheduled so the judge may hear issue on the merits.
c. Must notify 45 days in advance, and 10 days at minimum.
d. Generally, 60 miles is the furthest reasonable distance which a custodial parent
may move.
6. Modification of Child Custody
a. Petition to Modify Custody
i. Pendente Lite Hearing
1. Hearing pending litigation on grounds of an emergency reason.
a. Opposing spouse may object, but has 10 days to do so from
the order.
b. Uses Best Interest Standard
c. Original Custody Declaration – ANY OTHER ARRANGEMENT
i. McLendon Standard Applies
1. Must prove change in custody will SO materially promote the
welfare of the child as to outweigh the inherent disruptive effect in
change of custody
a. Very High Burden!
2. No longer equal footing; level of proof higher
a. Best interest not enough – must be far better off in another
household
7. Parent-Child Relationship Protection Act
a. Statute requires parent who is going to move with a child in their custody more
than 60 miles away to give ample notice to the other parent of where they are
moving, certified, addresses, phone numbers, where child will be schooled, and if
 other parent objects they must do so within 30 days of the impending move;
presumption is AL (most states have similar laws) that it is NOT in the best
interest of the child to move more than 60 miles from their present residence.
i. Person moving has the burden of proving this is in the best interest of the
child
ii. Non relocating parent must object to the relocation.
iii. Relocation Presumption = is best not to relocate
8. Grandparent Rights
a. Fit parents are presumed to act in child’s best interests
b. Fundamental right of fit parents to parent their children
c. Interest of parents in care, custody, and control of their children is the oldest
fundamental liberty interest recognized by the Court.
d. AL does not have grandparents

Uniform Child custody Jurisdiction Enforcement Act (UCCJEA)

 Jurisdiction for an initial custody determination:
o The child’s home state;
 State where child has lived with a parent for 6 months prior to the filing of
the petition.
 State where the parent and child have significant connections and
substantially evidence relating to the child is available.
 Jurisdiction for modification:
o The state where the initial custody modification was made until neither the child
nor either parent resides in that state anymore;
o Or when neither child nor parent has significant connections to the state or
substantial evidence relating to the child is no longer available in the state.
o Any state may take jurisdiction for modification if the child has been abandoned
in that state.
o Any state may claim jurisdiction when no other state claims jurisdiction.
o Inconvenient forum.
 Abbott v. Abbott : Child was taken out of the country.
o Applies Hague Convention.
o Violation occurs when
 child is moved beyond the custodial rights; and
 at the time of the removal the parent was using their custodial rights to do
so.
o Burden of proof for the Petitioner (one requesting child’s return) is to a mere
preponderance.
o Respondent must show:
 clear and convincing evidence that to return the child to that nation would
expose him or her to physical or psychological harm; or
 it would expose the child to a grave risk of harm.
 Ex: a nation that is in a war zone, diseased, or in famine.
o Even if filed after a year, the convention holds that the child be returned unless
the child has become settled in their new home; or if child has matured to testify
on their own behalf to decide whether or not they wish to return.
Adoption
 Strictly statutory law.
 Must follow the requirements stated in the statute to the letter.
 Consent of the natural parents is the most important aspect of the adoption process.
o When identity of both parents is known, both must give written consent; unless:
 Parent has abandoned child for a consecutive 6 months, or
 (in AL) statute Putative Father Registry says an unwed father who does
not find the registry during the mothers pregnancy or during 30 days of the
child’s birth, he has given his irrevocable consent to adoption.
 Putative father registry
o In Alabama, if an unwed father doesn’t sign the registry during the mother’s
pregnancy or with in 30 days of child’s birth, he has consented to adoption,
irrevocable. Even if name is on birth certificate. Even if she didn’t know she was
pregnant.
o However, there is a difference between a putative father, and a presumed father
(one who has supported, visited).
 AL LAW:
 Mother can give consent before birth BUT all relative time periods
run from date of birth or date of consent; whichever is later
o Day 1 (baby born)
o Day 5 = Absolute Grace Period – must be returned for any
reason
o Day 6 - Day 14 = Best Interest Hearing – presumed child’s
best interest is served by being with natural parent BUT
once a parent has consented the presumption no longer
stands
o No presumption to the natural parents.
o After Day 14 = Prove by clear and convincing evidence
fraud, duress or misrepresentation by adoption agency or
adoption parents ONLY
 Only can come from the adversarial party

Non-marital Cohabitants
 Even if a couple is not “legally married,” do they still have equity from the relationship?
o Maybe, If in Cali or NY then yes.
 As long as the relationship is not strictly meretricious, then according to
Marvin, there could be equitable remedies.
o Marvin equitable remedies: (Based on action of parties)
 Express Contract
 Implied Contract
 Constructive Contracts
 Resulting Trusts
 Quantum Merit
 Partition
 Joint Venture/Partnership