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Family Law Outline

Final is Open Book, statutes, notes, outlines Introduction: The definition of a family matters because there are legal consequences Property, custody, support, etc. Federalization of family law matters

Right to Privacy
The foundation of a womans reproductive rights rests on the constitutionally protected right to privacy. Both married and unmarried people have constitutional right to determine whether or not they want to have a child o Griswold Married people o Eisenstadt Unmarried People These anti-contraceptive laws were called Comstock laws Before Griswold, Supreme Court heard very few family law cases --- Griswold was the constitutionalization of the family law area

Supreme Court extended right of privacy to encompass right to an abortion in Roe v. Wade. Since then, however, the Court has significantly limited the scope of this right. Anti-abortion statutes emerged 1860-1880 from the medical profession --- they want to curb non-medical practice abortions (protect the profession) Reform began in 1960s ALI Model Penal Code abortion provisions womens movement

Roe v. Wade
Right of Privacy gives a woman a constitutionally protected right to an abortion o Texas statute making it illegal to get abortion (except for saving life) Jane Roe, single woman, wanted a declaratory judgment holding it unconstitutional She was unable to get a legal abortion because she did not have enough money to travel o Also her life was not threatened Whether a statute that prohibits all abortions is unconstitutional violating the Due Process Clause of the 14th Amendment o Argument improperly invade a right, said to be possessed by a pregnant woman, to choose to terminate her pregnancy

o o

o o o

Argued substantive due process fundamental right (life, liberty and property)---violated her liberty This applied a Strict Scrutiny test -- A womans right is not absolute and must be weighed against government interest Trend towards more liberalized abortion laws Right of privacy is broad enough to encompass a womans decision whether or not to terminate her pregnancy A State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life Therefore right of privacy is not absolute Must be considered against important state interests Regulation limiting these rights may be justified only by a compelling state interest (strict scrutiny) and that legislation enactments must be narrowly drawn to express only the legitimate state interests at stake Compelling point is at end of first trimester Before this cant regulate NOT ABSOLUTE RIGHT NOT UNLIMITED state has legitimate interest in protecting mother, potential life, At what point in time does the states interest in fetus become compelling? o When viable o Trimester system 0-1st trimester left to womans doctors 1st to viability regulate in ways that are reasonably related to maternal health (making sure things arent being done that are harmful to womans health) Subsequent to viability State, in promoting its interest in the health of the mother, may regulate abortion for reservation of the life or health of the mother (abortion in same cases are okay after viability) Unborn has never been recognized as persons DEEMED ABORTION AS FUNDAMENTAL RIGHT Decision never mentions right to choose ---- it is the relationship between the doctor and woman is where privacy comes in --- Roe has been taken very broad Decision confers right to the woman in consultation with her doctor FUNDAMENTAL RIGHT ANALYSIS STRICT SCRUTINY Abortion was a dangerous procedure before legislation Privacy 1st, 4th, 5th, 9th, 14th Amendments

o Court didnt want one moral view to have power to decide what happens to Roe

Roe Trimester System: First Trimester unqualified right to an abortion that may not be infringed by the state State interest are not compelling at this point The decision must be left to woman and her doctor Second Trimester State may regulate in the interest of maternal health or life But no absolute ban Viability States interest in protecting potential life justifies the state in regulating and proscribing abortion except when necessary for preservation of life or health of mother Abortion procedures are not taught in med school --- not many actually perform abortions Doe v. Bolton Court invalidated statute that required 1) abortion must be performed at accredited hospital 2) the woman must secure advance approval by a hospital committee and 3) the abortion must be justified by at least 3 doctors Akron v. Akron Center reaffirmed Roe (dissent said that Trimester framework is on collusion course with itself and advocated for undue burden standard)

Planned Parenthood of SE Penn v. Casey

Abortion is not fundamental right anymore --- it is a liberty interest Affords considerably less constitutional protection to the abortion than Roe Announced a new standard undue burden Whether a statute may force a woman to obtain spousal notification for an abortion Statute no doctor shall perform an abortion on a married woman without receiving a signed statement that she has notified her spouses o Statute contained the following provisions An informed consent requirement 24 hour waiting period Notification of married womans husband prior to abortion One parent consent requirement A medical emergency exception Reporting requirements for abortion agency In most functioning marriages spouses discuss things o But in abusive relationships this notification of the spouse might turn 24 hour waiting period is okay ---- another issue in this case o This is just as much a problem for battered women ---- this is time she could have gotten beat ----it is hard for battered women to leave the home (can only with mans permission)

This notification law operates as a substantial burden and obstacle on a womans choice to undergo an abortion o Court recognized husband does have an interest But it does not permit him to have overwhelming authority over his wife Husband has no enforceable right to require a wife to advise him before she exercises her personal choices o But this is about the females liberty o If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether or not to bear or beget a child o The spousal requirement lets the husband have a veto over the wifes decision State may not give to a man the kind of dominion over his wife that parents exercise over their children This cases helps a weaker sex WHETHER OR NOT A STATUTE PUTS AN UNDUE BURDEN ON A WOMANS RIGHT TO AN ABORTION o This changed the Roe standard o Upheld statute part that required a waiting period that a woman would be provided with alternatives o Waiting period has to be a short period of time

Casey Framework
Only those regulations that impose undue burden will be subject to strict scrutiny Before viability --- a woman has a right to choose to terminate her pregnancy o A law designed to further the States interest in fetal life which imposes an undue burden on the womans decision before fetal viability is unconstitutional o A undue burden is shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus Subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother o Got rid of the trimester framework State has legitimate interest in protecting maternal health and potential life throughout the pregnancy Majority justices in Casey OConner, Kennedy, Souter (undue burden)

Rehnquist, White, Scalia, Thomas (voted with majority but wanted rational basis) Blackmun and Stevens (wanted strict scrutiny) Government is under no obligation to provide funds for an abortion o Even if government would have subsidized the pregnancy and childbirth Constitution does not guarantee easy access to abortion o Access to Clinics Congress passed the Freedom of Access to Clinic Entrances Act (FACE) which provides for criminal and civil penalties for anyone who uses force, threat or physical obstruction aimed at injuring, intimidating any patients or abortion providers A husband has no constitutional right to influence his spouses abortion decisionmaking

Stenberg v. Carhart Partial Birth Abortions

Constitution offers basic protection to the womans right to choose o Whether a law regulating a partial birth abortion is constitutional under the Roe v. Wade framework Carhart is a doctor who performs abortions Is unconstitutional o Law lacks any exception for the preservation of the health of the mother (any life saving exception) o It imposes an undue burden on a womans ability to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself This law regulates only a method of performing abortion Court has made clear that a State may promote but not endangered a womans health when it regulates the methods of abortion Undue burden Partial Birth Abortion Ban Act 2003 lower courts have found this unconstitutional under Stenberg and Casey Makes criminally and civilly liable any physician who performs a partial birth abortion No health exception but there is a life saving exception Courts could follow Stenberg Supreme Court just ruled on this and upheld it o Traditionally domestic relations was a State law area o Griswold changed this approach signaling the Constitution limits the states authority over family law More than 1 in 5 pregnancies end in abortion NOTHING IS MORE LOCAL THAN FAMILY LAW INCREASING FEDERALIZATION OF FAMILY LAW

Minors right to Abortion is more limited than adults Planned Parenthood of New England v. Heed
New Hampshire law no abortion on minors without written notice to parents --if minor does not want her parents to know, she may request a hearing where a judge will determine if she is mature and capable of giving informed consent Judicial bypass must be decided within 7 days Whether this law unduly burdens a womans right to obtain an abortion o Health Exception - There must be a health exception to any law regulating abortion o Death exception uncertainty in this would chill the willingness of a doctor to provide a lifesaving abortion o Confidentiality - a minor might be compelled to decline or delay having abortion because of fear her parents would find out Thus for a large fraction of minors eligible for bypass, inadequate confidentiality would impose an undue burden Act is unconstitutional --- remanded to lower court to reconsider o However Horborugh said ---- THE SUPREME COURT RULED THAT ONLY THE PARTS THAT ARE UNCONSTITUTIONAL ARE INVALID BUT THE OTHER PARTS ARE GOOD AND ARE STILL GOOD LAW 2006 OPINION BY OCONNER JUST BEFORE SHE RETIRED Supreme Court interprets the Constitution to permit greater state regulation of minors abortion rights compared to those of adults Vulnerability Maturity decision-making capacity Need to foster parental role in child-rearing o However, these have been examined and are considered fluff Need to have judicial bypass procedure in the law --Can have both parental notification and parental consent statutes Parental notification has been more successfully challenged under State constitutions Majority of States require parental involvement in a minors decision 21 states parental consent 13 parental notification Most states require consent or notification of just one parent o 2 states require both parents to consent o 1 state require both parents to be notified o 6 states permit other adult relatives instead of parents to be involved Florida Constitutional has strong right of privacy in constitution ---

North Fla. Women Health v. State holding that parental notification requirement violates the state constitutional right of privacy, given states disparate treatment of minors for comparable medical procedures Florida voters overturned North Fla. Health in 2004, when they approved an amendment that exempts parental notification for abortion from the state constitutional right to privacy

Homosexual Behavior
Bowers v. Hardwick Eisenstadt left open a question about gay conduct --- Supreme Court slammed the door here No fundamental right for homosexuals to engage in sodomy

Lawrence v. Texas
Overruled Bowers v. Hardwick State statute violated defendants substantive due process rights --- individuals liberty to engage in intimate personal relationships Law made it illegal for same sex couples to engage in deviant sexual conduct Lawrence and Garner were having sex when the police busted in on them in a private residence o Garners jealous boyfriend called the cops and told them about a crazy black man Whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process of the 14th Amendment o Precedent Bowers case same facts except that Ga statute prohibited the conduct regardless of whether they were the same sex or not (no fundamental right to engage in sodomy) ----sharply criticized the previous case o Two cases decided after Bowers put the holding in question Planned Parenthood v. Casey - laws afford constitution protection to personal decisions relating the marriage, procreation, contraception, family relationships Romer v. Evans Court struck down a class based legislation directed at homosexuals o When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in private and public spheres. o Demeans the lives of gays o Their right to liberty under Due Process Clause gives them a full right to engage in their conduct without intervention of the government o This is more about relationships than sex Texas sodomy law is targeted at more than conduct, it is targeted at a class of persons Anti-subordination approach to equal protection required invalidation of laws and legal structures that perpetuate the subordination of disadvantaged groups USED RATIONAL BASIS TEST


Getting Married
Premarital relationship has become increasingly private Courtship often leads to cohabitation o Cohabitation has dramatically increased in past several decades o Over 50% of first marriage cohabitate o Widespread belief leads to a more stable marriage ---however, date suggests leads to greater risk of divorce A Little Commonwealth: Family Life in Plymouth By law had to ask permission of father for marriage to daughter Betrothal was a simple ceremony which was engagement If did not go through with wedding, could have legal action From Front Porch to Back Seat: Courtship in 20th Century Dating started in urban lower class (who didnt have a parlor) Dating lessened parental control and gave young more freedom Dating shifted power from women to men

Marriage Contract:
Is a marriage a contract (a private agreement between two parties) or a status (a public institution regulated by the state)? Contract Status Agreement between 2 people Civil status Civil contract Relation Differs from other contracts because the state is a party

Maynard v. Hill
Something more then mere contract o Consent of parties is essential After marriage cant change the relation between the parties The relation once formed, the law steps in and holds the parties to various obligations and liabilities Marriage contract can not be modified and you cant set terms of marriage o It takes three to marry; man, woman, and State Very important foundational of family and of society Duel nature of marriage as a status and contract

Ancient Law: Gradual dissolution of family dependency and the growth of individual obligation in its place Free agreement of individuals Movement from status to contract Justice, Gender, and the Family: It is a contract that does not conform with the principles of liberal contract doctrine Preformed status contract, which restricts the parties freedom to choose their partners and of which they are not free to choose the terms Coverture husband and wife became one person upon marriage Absent her husbands consent, a wife was unable to o Sue or be sued o Enter into contracts o Alienate real property o Make a will or o Retain or control her own earnings and property Was dissolved by the Married Womens Property Act

Premarital Contracts
Premarital contracts agreements between prospective spouses made in contemplation of the marriage Typically requires one party to limit or relinquish some right The parties may not enter into an enforceable pre-nup that concerns child custody, stemming from the States interest in Child welfare

Simeone v. Simeone
Some Courts enforce agreements that are unfair so long as the agreement accords with intent, is entered into voluntarily and with full disclosure Puts pre-nups on same footing as regular contracts Validity of a prenuptial agreement o On eve of wedding husbands lawyer presented prenup to bride Duress?? however, this doesnt work (no gun to head) she had a choice she didnt need to go through marriage o She had not been advised of her legal rights o She signed it Precedent Estate of Geyer

o Permitting a prenup to be upheld if it either made a reasonable provision for the spouse or was entered after a full and fair disclosure of financials Allegations: o Inadequate disclosure of statutory rights (not adequately informed with respect to the nature of alimony There was full disclosure Surviving spouse share in estate --- you can not be written out by will ---statutory rights of divorce >>> spouses share in the acquired assets (equitable distribution) --- may be a right to alimony Contract said alimony pendente lite was relinquished o Payments provided were less than reasonable unfair under traditional contracts courts will not review adequacy of consideration --- you made your deal Geyer should be overruled o General contract principles should apply o Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements o Full and fair disclosure of financial positions is required ---- but not exact (not precision) Not going to overturn if some type of evaluation is in question o Lots of issues arise during divorce of evaluation ---- if pre-nup court wont disturb o Reading contract is assumed if signed it o Ignorance is no excuse Cant require each party to have lawyer (contrary to other contracts) Reasonableness of pre-nup bargain is not proper subject for judicial review o Parties should be stopped from asserting terms are not reasonable Full and fair disclosure of each financial position If the agreement provides that full disclosure has been made, a presumption of full disclosure arises This court believes in upholding terms of pre-nup o Court does not want to get into she said he said Valid and enforceable

If court does look into reasonableness will look to: The parties respective wealth Respective ages Respective intelligence, literacy, and business acumen Prior family ties or commitments Some courts look at fairness at time contract was executed; while others look at when it was signed

Requirements for Valid Pre-nup

1. it provides full an fair disclosure 2. it is fair and reasonable 3. it is entered into voluntarily by both parties
Note that a spouses knowledge of the other spouses financial status can serve as a substitute for disclosure (disclosure does not mean detailed disclosure) Anything that goes into bargaining relationship ---- procedural o Procedural fairness refers to fair and reasonable disclosure and the voluntariness with which each party entered into the agreement Anything that has to do with the actual agreement substantive o Substantive fairness refers to the fairness of the substantive terms of the agreement

Binek v. Binek
Husband gave pre-nup to bride 2 days before wedding He stated he would not marry her if she didnt sign Wife was not represented by lawyer Wife sought divorce o Governed by common law because when they signed agreement Uniform Premarital Act was not adopted yet Allegations: o Not entered into voluntarily duress o It is unconscionable o Does not apply to dissolution of the marriage by divorce o Procedurally and substantively unfair Procedurally o Was not voluntary It was her decision to sign the agreement and she voluntarily did so Agreement contained full disclosure clause ---creates rebuttable presumption o Not full disclosure Substantively o Unconscionability Not unconscionable Enforce because fair, equitable, reasonable, and just o Does not contravene public policy This contract had effect of putting her on welfare ----- courts care about this No requirement that must be represented by lawyer Was executed fairly o However, because trial court did not explain why they didnt give her support --- remanded

THIS JURISDICTION WILL LOOK AT CONTRACT SUBSTANTIVELY AT TIME OF EXECUTION AND AT TIME OF ENFORCEMENT Uniform Premarital Agreement Act - UPAA Requires both procedural and substantive fairness (sets a higher standard than Binek) Requires unconscionability to invalidate a pre-nup 6 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: a. Was not provided fair and reasonable disclosure of the property or financial obligations of the other party; b. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial of the other party; and c. Did not have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other party IF SPOUSE HAS TO GO ON WELFARE, MAY MAKE OTHER PARTY PAY SUPPORT (even though agreement said otherwise) o Examine at both time of signing and time of execution ---- if situation changes might give support o Florida has NOT adopted the UPAA shall make fair disclosure during marriage; no disclosure required before marriage; do not have to make promise to give spouse anything 732.702 Fla. Stat. o Florida has lots of pre-nups because many older people with second marriages trying to give their kids their estates Make sure other spouse has representation ---do it right so it wont be challenged Simeone Treat as ordinary contracts Rejects examination of substantive fairness at time of signing or when enforced Binek Underscores need for special protection Requires both substantive fairness (at execution of agreement and dissolution) and procedural fairness (that the agreement be entered into voluntarily and with full disclosure) Third Approach Consider substantive and procedural fairness as alternative requirements Requiring that substantive fairness be present before a court will examine the agreement for procedural fairness

There is a possibility that one party may overreach

Substantive and Procedural Regulations of Marriage

Constitutional Limits on State Regulation of Entry into Marriage
Supreme Court established that the right to marry is a fundamental right (STRICT SCRUTINY) All states regulate marriage in some way (licenses, age requirements etc)

Loving v. Virginia
Racial Restrictions on the Right to Marry is unconstitutional Whether a statutory scheme adopted by State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the 14th Amendment o Black woman and white man married in DC and then came back to live in Virginia o Grand jury indicted them with violating VAs interracial marriage ban o Plead guilty and sentenced to one year in jail o Trial judge suspended sentence if the leave VA for 25 years o Were living in the metro Richmond area VA arguments: o Miscegration statutes punish equally they do not constitute an invidious discrimination based upon race o Equal Protection does not outlaw miscegration statutes because of their reliance on racial classifications (Making it a rational basis test) defer to wisdom of Legislature Courts reply o Reject notion that equal application is enough to remove this from 14th Amendment o Clear purpose of statute is racial discrimination o Court has consistently repudiate distinctions between citizens solely because of their ancestry o Racial classification = heightened scrutiny = must be shown necessary to accomplish a permissible state objective o No legitimate overriding state purpose Only purpose was White Supremacy o Restricting freedom to marry solely because of race violates Equal Protection Marriage is one of the basic civil right of man fundamental to out existence and survival

14th Amendment requires that the freedom of choice to marry not be restricted by racial discrimination Common Law Rule of Lex Loci provides that a marriage valid where performed is valid everywhere Exception a jurisdiction need not recognize the marriage if contrary to public policy gay marriage Crossing the Color Line: Loving v. Virginia Sheriff barged into their bedroom to arrest them (got anonymous tip) Moved to DC after jail time was suspended Mildred wrote letter to Robert Kennedy, who gave it to the ACLU Virginia Hasnt Always been for Lovers: Crosses were burned in their yards Richard was killed by a drunk driver

Zablocki v. Redhail
Supreme Court also invalidated a restriction on the right to marry based on poverty Statute if citizen has a minor that he supports, must apply for permission to get married o Cannot be granted unless proof of compliance with child support and must prove that child is not a public charge Redhail wants to marry but was denied license o In high school he had an illegitimate child that he has been unable to support and this child is a public charge Loving v. VA holding that laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, o Fundamental character of the right to marry o Two scrutiny standards ------ Rational basis reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may be legitimately imposed Strict scrutiny for those laws that DIRECTLY AND SUBSTANTIALLY interfere with right to marry (must be supported by sufficiently important state interests and is closely tailored to effectuate only those interests) This statute was not closely related to the governments purpose --- no tight fit here State asserted interest

o Permission to marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations There is evidence of this but was not used primarily as this State went further than this o Welfare of the out of custody children is protected No money is actually delivered to children Actually promotes more children being born out of wedlock Cant be justified and there unconstitutional --- here this is a direct effect use strict scrutiny when directly and substantially interferes with marriage however, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed Califano v. Jobst upheld Social Security act terminates a dependant childs benefit upon marriage this was no direct obstacle it only had an indirect effect

Turner v. Safley prison regulations

The Supreme Court has upheld the right to marry in such special contexts as prisons Missouri regulation permits an inmate to marry only with the permission of the superintendent of the prison, and provides that such approval should be given only when there are compelling reasons such as pregnancy or birth of illegitimate child o Inmate marriages Emotional support and public commitment Religious reasons (exercise of faith) Marital status is precondition to receipt of some government benefits o Allegations: Security reasons love triangles cause violence Rehabilitation reasons - Women prisoners have dependency issues and were abused Too paternalistic o This regulation not reasonably related to interests o This is an exaggerated response Facially invalid

State Regulation of entry into the Marital Relationship

Substantive Restrictions: Capacity to Marry: Same Sex Florida is one of last jurisdictions to prohibit gay adoptions of children

Must have Capacity to Marry: Capacity requires the parties 1. be of opposite sexes 2. be married to only one spouse at a time 3. not be related and 4. be above the statutory defined age State of mind restrictions require that parties marry 1. voluntarily and 2. without fraud or 3. duress Traditional Rule: jurisdictions refuse to recognize same-sex marriage Rationale: marriage is for propagation of the species marriage protects the health and welfare of children the dictionary defines marriage as the union of a man and a woman canon law and the scriptures define marriage as heterosexual the state has an interest in fostering and facilitating traditional notions of the family

Goodridge v. Department of Public Health

Whether, consistent with Mass. Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry Court was trying to situation this case like it actually came from the Supreme Court --- used federal/ Supreme Court precedent o Zablocki, Baker, Lawrence, Loving, etc Each couple were denied marriage licenses Commonwealths arguments/rationales: o providing a favorable setting for procreation laws contain no requirement that the applicants for a marriage license be able to have children; fertility is not condition of marriage or divorce it is the exclusive and permanent commitment of the marriage partners o ensuring the optimal setting for child rearing, which department defines as a two parent family with one parent of each sex protecting children is state interest; however, this law does not further this policy composition of families differ for each household same sex partners may be excellent partners

this prevents same sex children from being in more stable environments o preserving scarce State and private financial resources bears no relationship to the economy marriage laws do not condition receipt of funds or benefits on being financially independent o state thinks this would destroy institution of marriage does not undermine marriage would reinforce ideals of marriage the history of constitutional law is the story of extension of rights and protections to people once ignored or excluded law is invalid Toward a more Perfect Union: Mary Bonauto lawyer in Goodridge was also lawyer in Baker v. State, which legalized civil unions in Vermont Civil unions created separate but equal In reaction to Goodridge, Bush gave harsh criticism o San Francisco Mayor started issuing gay marriage licenses Mass. Legislature tried to pass a civil union law, but State Supreme Court ruled it invalid as having the same effect as the anti gay marriage law May 17, 2004 Mass became the first state to permit same sex marriages o Mass Governor restricts it by requiring proof of residency o adopting Uniform Marriage Evasion Act o this has been challenged but unsuccessfully Mass. Citizens attempted to get amendment to their state constitution banning gay marriage o Was defeated Miami Beach has a partnership act that protects them in hospitals etc. Vermont recognizes civil unions thus affording gays the same benefits, without the title Does other states have to recognize the gay marriage? Conflict of Laws: Under traditional conflict of laws principles, marriage validity is determined by the law of the state where the marriage was celebrated However this rule only applies if recogniztion of the marriage would not offends the forums states public policy A few states even have Marriage Evasion Acts Full Faith and Credit: Requires states to confer full faith and credit on public acts, records and judicial proceedings Has not been read to mandate recognizing gay marriage --- instead use choice of law statutes

Defense of Marriage Act: Federal : o Congress expressly provided for marriage is between a man and a woman o Specifies that states do not have to give full faith and credit to gay marriage o Leaves states free to determine if they want to recognize it or not If couple goes to Canada to get married and come back here, still not recognized ---- Full Faith and Credit only applies to sister states o DOMA has withstood challenges State DOMA: o Mini DOMAs o 41 states have DOMAs; 20 states have constitutional amendments o Courts are split as to constitutionality of state DOMAs 2004 President Bush called for a federal constitutional amendment defining marriage as one between a man and woman Failed to pass the House of Rep. Was reintroduced and failed in the Senate Transsexuals Recent courts have held that a ceremonial marriage between a man and pre-operative male-to-female transsexual is not valid, based on chromosomal factors <><><><><><><> Incest All States regulate the degrees of kinship within which persons may marry Rationale for legal regulation of incest Genetic (inbreeding) Religious Socio-biological (need to encourage formation of new families) Sexual Psychological prevention of exploiting vulnerable people

In Re Adoption of M
Adoptive parents adopted M January 5, 1991 Adoptive parents divorced July 29, 1998, M gave birth to her adoptive fathers baby Whether or not the adoption of M should be vacated in order for M and her adoptive father to marry o Adoptive parents are as if that baby had been born to them (by law) o Interests of the parties (exceptional circumstances) Most vacation of adoption happens during minority ---- she is of the majority (22 yr old) Without the adoption ---- would be entitled to marry


Vacation would shed the father of his many role (grandfather, adoptive father, and husband) It would legitimize the infant, thereby advancing states interest to protect status of children

All states restrict marriages by consanguinity Fewer states restrict marriages between parties related by affinity (relationships established by law) Most jurisdictions regard incestuous marriages as void ab initio Incest is also a crime Many state statutes not only classify certain marriages as presumptively void but also subject to criminal liability officials who knowingly issue marriage licenses to such couples

Normally for voiding an adoption Need sexual abuse or violence

Void Marriage invalid from inception; never had any legal existence (ab initio) Either party or third party may challenge at any time and in any proceeding Substantive defects render void (same-sex, incest, bigamous) No legal action is required to declare its invalidity Void marriages offends strong state policy Bigamy and incest are grounds Voidable Marriage valid until subsequently declared invalid Invalidity can only be asserted by one of the parties and only during marriage (not after death) Requires one party to take judicial action to establish invalidity Cannot be collaterally attacked (in a related proceeding) may only be attacked by parties Less serious substantive defects (age) Fraud, duress, nonage are grounds

<><><><><><><> Bigamy All States refuse to permit marriages that are bigamous or polygamous Modern courts generally require intent to commit bigamy If a party to a marriage is still validly married to a prior living spouse, then the subsequent marriage is void. Enoch Arden laws defense to bigamy for spouses who married in good faith Does not invalidate the subsequent marriage after specified 5 years

State v. Green

Polygamist, Green had multiple wives (divorcing one to marry another, but still live with them all) Lived in mobile home community Women were on rotating schedule of who was going to sleep with Green Green appeared on several TV shows and then was prosecuted by the State of Utah Greens allegation: o Violates constitutional right to free exercise of religion o Unconstitutionally vague statute Whether the Utah Bigamy law is neutral o Cohabit does not refer to religious practices Facially neutral o Does not similarly operate to isolate and punish only bigamy Operationally neutral Whether the statute is of general applicability o Does not attempt to target only religious based polygamy o It does have an adverse impact on polygamist o Legislature determined prohibiting bigamy serves the states best interests o It is of general applicability Since neutral and generally applicable, only need to show rational basis o Rationally related o Utahs laws are based on monogamy Despite the population of Mormon bigamy --- prosecutions are rare <><><><><><><> Age all states establish minimum ages to marry Minors can obtain parental consent to marry (or maybe even judicial consent) Permission of one parent is sufficient in many states Rationale: Maturity is necessary to promote marriage stability Historic common law age of consent to marry was 7 years old. Marriages were voidable as long as either party was too young to consummate the marriage. Children were regarded as property. Today --- defects of non-age or lack of consent render a marriage voidable upon the initiative of the under age party. If the party fails to disaffirm, the marriage validated when that party reaches the age of consent Some states classify it as voidable, other void Courts have upheld the constitutionality of parental consent requirements Lessens the likelihood of subsequent parental efforts to invalidate a marriage

Today both men and women are marrying older Young marriage correlates with factors such as: Low educational level of persons parents Many siblings A non-intact family life Religion Race Ethnicity Geographical region

Kirkpatrick v. District Court

Mother and father divorce and mother gets custody of child Child wants to get married to a 48 year old Mother consents o New Mexico (where living) doesnt allow underage marriage, so they go to Las Vegas o Mother filed petition with court in Vegas and ordered a marriage license Father sought ex parte TRO in New Mexico granted order and gave father immediate custody of child----4 days later court rescinded the order because it found the marriage was valid At common law, marriage emancipates a minor Father now seeking writ of mandamnus to compel District Court to vacate its order authorizing the marriage o Allegation his constitutional interest in care, custody etc was infringes because he did not consent Right to marry is fundamental Constitutional rights apply to children as well as adults Age alone is an arbitrary factor in determining whether marriage will be successful Nevada statute strikes balance between rule of age and accomendating individual differences o Consent of only one parent needed --- state recognizes modern families o His relationship does not end with the emancipation of his child Marriage was okay

Notes: All states have min. age to marry Minors below the statutory age must get parental consent or judicial consent o States are inconsistent with how they treat nonage marriages (void or voidable) o Requiring parental consent lessens the likelihood that parents will try to invalidate the marriage

What are the effects of teen marriage? Teen marriages have a high rate of instability Teens who have a non-marital birth and subsequently marry but then divorce are worse off economically than those who do not marry Teen mothers are more likely to have a 2nd birth quickly if they marry Teen marriage leads to decreased educational attainment for girls Teen fathers earn less in early adulthood than males who delay parenting until after age 20 Teen marriages often involve high levels of domestic violence <><><><><><><>

State of Mind Restrictions: Fraud and Duress

A majority of states provide that fraud or duress are grounds of annul the marriage It fraud or duress vitiates consent and makes the marriage voidable at the request of the injured party Fraud Under the strictest test to annul a marriage, the fraud must go to the essentials of the marriage o Essentials are: ability and willingness to have sex and have child Some jurisdictions require higher showing if marriage has been consummated False misrepresentations as to wealth are not legally sufficient ground for annulment Serves as grounds for an annulment Duress Marriage are voidable and may be annulled if a party enters the marriage because of duress Some courts require physical force or threat Agreements to marry that are procured by force, fear or coercion are unenforceable Annulment declares that no marriage occurred because some impediment existed at the time of the ceremony o Annulment jurisdiction exists at either partys domicile, the state where the marriage was celebrated or any state with personal jurisdiction over the spouses o Spousal, child support and property division do not follow o Relation back is only available for annulments benefits lost may be reinstated to the date of the annulled marriage Divorce terminates a valid marriage, enabling parties to remarry o Divorce jurisdiction rests on domicile o Spousal, child support and property division follows

Blair v. Blair

Husband and wife had one night stand Wife gave birth to son (allegedly of the one night stand) 3 years later she called husband and told him about the son They started a relationship; Had another kid; Got married Turned out he was not the father of the first kid Wife filed for divorce---- he petition for annulment alleging that the wife fraudulently represented to him that he was the boys father (perpetrated a fraud) o In order to establish fraud---must prove A representation by the wife Its falsity Its materiality Wifes knowledge of its falsity or ignorance of its truth Wifes intent that the representation be acted upon by Husband Husbands ignorance of the falsity of the representation Husbands reliance on the truth of the representation Husbands right to rely on the representation and That Husband sustained consequent and proximate injury o Testimony at trial shows that Husband would have married her anyway o No annulment

Notes: A marriage may be set aside for lack of consent. Fraud and duress vitiates consent and serves as ground for annulment Marriage Fraud in immigration INS must find marriage genuine (then it will grant conditional adjustment of status) Spouse obtains permanent resident status after two years, if marriage is determined to be genuine o Factors investigators look at: Cohabitation Commingling of resources Holding joint property Has children <><><><><><>

Procedural Requirements of Marriage: License and

States require that the parties procure a marriage license, often by applying to the county clerk Some states require health, blood test etc

Solemnization and Licensing

All states require solemnization of marriage by an authorized person before witness However, no specific form of ceremony is required Must record in public records

Failure to comply with procedural formalities will not invalidate the marriage

Carabetta v. Carabetta
P and D exchanged vows before a priest but never got marriage license They lived together as husband and wife Whether, under Connecticut law, despite solemnization according to appropriate religious ceremony, a marriage is void where there has been noncompliance with the statutory requirement of a marriage o Substantive requirements blood test etc o Procedural requirements marriage license and solemnization The statutes do not make void a marriage that was solemnized but no license was obtained The vice versa is true also UNLESS THE STATUTE CLEARLY STATES THAT WITHOUT A LICENSE THE MARRIAGE WILL BE VOID, it will be assumed it is not

Violation of formality requirements of marriage, such as failure to get marriage license, will not void a marriage o Unless the statute expressly says that it is void without a license Justifications for licensing statutes: 1. they aid in enforcing marriage laws by requiring persons not qualified to marry for reasons of age, health or existing marital status to disclose such information 2. they serve as public health measures by preventing marriages that would be damaging to the health of one spouse or would produce unhealthy children 3. licensure serves as proof the marriage as occurred

Fla Stat 741.01. County court judge or clerk of the circuit court to issue marriage license; fee (1) Every marriage license shall be issued by a county court judge or clerk of the circuit court under his or her hand and seal. The county court judge or clerk of the circuit court shall issue such license, upon application for the license, if there appears to be no impediment to the marriage. The county court judge or clerk of the circuit court shall collect and receive a fee of $ 2 for receiving the application for the issuance of a marriage license. (2) The fee charged for each marriage license issued in the state shall be increased by the sum of $ 25. This fee shall be collected upon receipt of the application for the issuance of a marriage license and remitted by the clerk to the Department of Revenue for deposit in the Domestic Violence Trust Fund.

(5) The fee charged for each marriage license issued in the state shall be reduced by a sum of $ 32.50 for all couples who present valid certificates of completion of a premarital preparation course from a qualified course provider registered under s. 741.0305(5) for a course taken no more than 1 year prior to the date of application for a marriage license.

Proxy marriages where another party stands in for bride or groom often happen during time of war Licensing: 50% states require licenses be procured in the county where one party resides or where the marriage is to be performed Some states include fees (see Florida state above) Most states have waiting periods Some states require health test and blood tests

Informal Marriages
Curative Procedural doctrines: Some doctrines protect parties who fail to observe the requisite procedural requirements (common law marriage) or the party who is unaware of an impediment to the marriage (putative spouse doctrine)

Common Law Marriages

Approximately 12 states recognize common law marriage number is declining No ceremony is required rather parties agree to enter into a legal marital relationship, cohabitate, and hold themselves out as husband and wife in the community constitutes a valid marriage can only be terminated by death or dissolution

Jennings v. Hurt
Whether Sandra Jennings is the common law wife of William Hurt o When Jennings and Hurt met, Hurt was still married to wife o Jennings became pregnant and Hurt then got divorced o The claim here is based on an argument where Hurt called her his wife Must show intent of parties A subsequent divorce does not per se transform this illicit relationship into a common law marriage o Prior relationship is presumed to continue and the party claiming common law marriage must show by a preponderance of the evidence that the relationship underwent some fundamental change following the removal of the impediment

No common law marriage here

Elements of Common Law Marriage: 1. capacity to enter a marital contract 2. present agreement to be married 3. cohabitation (in jurisdiction that recognizes CLM) 4. holding out to the community as husband and wife
only 9 states and DC recognize CLM holding out establishes evidence and prevents fraud a valid common law marriage cannot come into existence while a prior marriage exists on the part of one spouse a common misconception is that the parties must cohabit for a specified period of time CLM present problems when couple resides in different jurisdictions (some of which may not recognize the CLM) o If first reside in jurisdiction that recognizes, then moves to one that doesnt ---- the latter jurisdiction will almost always recognize o If first reside in jurisdiction that doesnt recognize CLM, then move to one that does ---- latter usually will recognize the union

Putative Spouse Doctrine

recognizes the marriage of an individual who participated in a marriage ceremony in good faith, in the belief that a valid marriage took place, and in ignorance of an impediment making the marriage void or voidable. Protects spouse who protects a spouse who believes in the validity of the marriage ---- good faith belief in required This doctrine often relied upon in claims to confer benefits upon an innocent spouse at death or dissolution

Contrast: Common law Marriage The parties are aware that they have not taken part in a marriage ceremony May be terminated only be death of Putative Spouse Doctrine The parties have undergone a marriage ceremony and at least one party has a good faith belief that a valid marriage has occurred Dissolution is not necessary to terminate


this relationship

Marriage by Estoppel a man, who is already in a common law marriage with another woman when he married his second wife, was precluded by the doctrine of equitable estoppel from questioning the validity of his second marriage

Being Married: Regulation of the Intact Marriage

Marital Property
Common Law Community Property Husband and wife own property separately (property owns to spouse that acquired it) Husband and wife own some property jointly each spouse has present, undivided, one-half interest

Duty of Support
At common law: husband had a duty to support his wife wife had a duty to render services to her husband state will not adjudicate spousal duties during the marriage enforceable only after separation or divorce Modern statutes make duty gender neutral Common Law Doctrine of necessities doctrine imposed liability on a husband to a merchant who supplied necessary goods to a wife a husband had a common law duty to provide necessities o food, clothing, shelter poses equal protection problems Florida has abolished the doctrine McGuire lower court relied on this doctrine

McGuire v. McGuire
suit by wife to get maintenance and support money husband and wife are NOT separated married for 33 years o husband does have a duty of support o however, this duty (this action) can only be maintained by a wife who was left by her husband that is not the case here doctrine of nonintervention: courts are reluctant to interfere in an on-going marriage to settle disputes between the parties

rationales: o a desire to preserve marital harmony o a judicial reluctance to adjudicate trivial matters o adherence to the view that the husband, as head of the family, should determine family expenditures and o the existence of the wifes common disability to sue her husband At common law, a spouse had duty to provide other with medical care

Domestic Violence
Hawthorne v. State battered woman syndrome
battered woman killed her husband whether expert should be allowed to testify about battered womans syndrome should have been allowed o The experts testimony explaining why a person suffering from battered womans syndrome would not leave her mater, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw themselves

People v. Liberta marital rape

Husband raped wife in front of child The statute --- female was any female person not married to actor To imply consent is absurd Violates equal protection

Cohabitation is the pattern of two unmarried persons of the opposite sex with a romantic interest in each other sharing residence Cohabitants tend to be younger than married persons and are more likely to be married to person of the opposite race Traditionally, non-marital fornication and cohabitation was considered deviant behavior and was subject to criminal sanctions

Unmarried Couples Rights Inter se

Traditional rule: courts refuse to enforce agreements between members of unmarried couples --- invalid as contrary to public policy Modern View: Express Agreements unmarried partners may enter into express contracts with each other regarding the ownership of property acquired during their relationship o Court will not enforce a contract between non-marital partners for sex o Parties must have to actual cohabitate (full time is not required) Implied some courts recognize o Implied in law to prevent unjust enrichment (quasi contract) o Implied in fact the court infers contractual intent from the parties conduct

Marvin v. Marvin
Landmark case recognizing rights of non-marital partners to make express and implied agreements Unmarried couple lived together for 7 years Acquired property and money together (that were kept in the mans name) They entered into an oral agreement that while parties lived together they would pool funds, he would support her etc He then kicked her out and refused to support her She filed this action to get the contract enforced Man thinks it should be dismissed because o Subject of contract is immoral (violate public policy) o Would impair property rights of his ex-wife o All marriage settlements should be in writing Un-Married couples are competent to enter into agreements about the disposition of property there is no unlawful consideration Express agreements will be enforced unless they rest of unlawful grounds In the absence of express agreement, courts may look to a variety of other remedies in order to protect the parties lawful expectations o California didnt recognize common law marriage and that is why didnt pursue under that theory o Couldnt go under putative spouse statute because she does not have a good faith belief that they were married o Have to act with the expectation of a reward in normal contract cases---you assume that this is the case in domestic services o You have to shape it into a commercial relationship for payment For same sex couples this is an excellent vehicle when relationship ends Sometimes they enter into agreement about sharing assets Florida recognizes this

Annulment declares that no marriage occurred because some impediment existed at the time of the ceremony Divorce terminates a valid marriage, enabling parties to remarry Different Procedural rules for each Annulment Divorce Jurisdiction exists at either partys Domicile only domicile, the state where the marriage was celebrated, or any state with personal jurisdiction over the spouses Spousal and child support and division of Spousal and child support, and division of property do not follow assets follow Relation back doctrine applies --- any No relation back benefits lost due to the marriage will be reinstated (i.e. because the marriage never existed) or negative consequences (bastardize children) Fraud and Duress serve as grounds for In 1800s divorce was rare Post Revolution divorce was found more in North 1880 legislative divorce was abolished (where had to go to legislator) 1850 -1870 liberalization of divorce laws WWII high divorce rates Rates dropped in 1950s Rose again in 1960s-1970s and stabilized

Florida statutes: Chapter 61

Residency, dissolution, alimony, child support, equitable distribution, custody


Traditional Fault Based Grounds Include: 1. adultery 2. cruelty 3. desertion

Before no fault was available, States required that the plaintiff establish fault-based grounds for divorce divorce was only awarded to the innocent party guilty party was punished by having to pay support etc divorce was disfavored policy of trying to keep family together

To prove adultery a plaintiff must show: 1. opportunity to commit the offense; and 2. disposition to commit it a. Disposition can be inferred from the conduct of the parties and the surrounding circumstances --- he was an adulterer

Lickle v. Lickle
Grounds adultery Petitioner wife Defense evidence fails to support charge of adultery The court acted like this was a criminal matter because it was very evasive (a PI was hired and followed him) If found liable --- would have to pay support ---this is why he is contesting Lickle and his wife did not share a bedroom for years Soon, Lickle started running around with another woman (who was married to Boone) When Boone was away in Navy he stayed with her at night, vacationed with her etc When Boone came back he accused them of an affair ----the wife of Lickle then tried to divorce him The complainant must prove adultery by showing 1) an opportunity to commit the offense and 2) a disposition to commit it The couple had numerous opportunities At common law, the crime of adultery could be committed only with a married woman For divorce purposes, adultery consisted of voluntary sexual intercourse of a married person with someone other than a spouse 29 states make adultery grounds for a divorce 23 states adultery is still a crime Adultery was not the most common grounds for divorce (desertion was) Cases are split as to whether same-sex sexual acts constitute adultery for divorce purposes Corroboration was needed to prove adultery

Common law Wife had to prove adultery constituted a course of conduct to obtain a divorce A husband only had to prove a wifes single act o This is not the way anymore

To prove cruelty a plaintiff must show: 1. a course of conduct that is so severe as to 2. create an adverse effect on plaintiffs physical or mental well-being a single act of cruelty does not suffice --- unless the act is so severe

Muhammad v. Muhammad
grounds cruelty petitioner wife o defenses insufficient evidence of cruelty Husband, wife and children went to live on religious commune Wife were treated poorly, not allowed to leave, werent fed etc She filed for divorce claiming cruelty o The husband is contesting the cruelty o Cruelty conduct endangering life, limb, or health or creating reasonable apprehension of danger, or unnatural and infamous conduct making the marital relation revolting o Even though no physical abuse --- this situation was still cruel o Unbearable living conditions for women o If a spouses actions which cause deep personal misery has no foreseeable end is the gravaman of the action for divorce by reason of habitual cruel and unusual treatment ---this was a good divorce Cruelty is a ground for divorce in most states Courts generally require a course of conduct of cruel behavior that creates an adverse health effect Courts are split to whether there must be more than one act The invention of no fault divorces lessened the need for this 27 states provide for cruelty as grounds for divorce

Requirements: 1. a voluntary separation 2. with intent not to resume cohabitation 3. that is without consent or justification Constructive desertion constitutes conduct that either causes a spouse to leave or justifies the spouses departure.

Thus, a defendant could defend against a plaintiffs claim of desertion by showing that the defendants departure was justified by the plaintiffs acts or behavior constitutes intolerable conduct by one spouse toward an innocent spouse that causes the innocent spouse to leave the marital abode

Reid v. Reid
grounds constructive desertion his behavior was so intolerable that the innocent spouse had to leave the abode petitioner wife o defense she deserted Wife and doctor married, he was never home, didnt have sex etc She left home and filed for divorce She sought divorce on grounds of constructive desertion if desert you can not have spousal support Proof of an actual breaking off of matrimonial co-habitation combines with the intent to desert constitutes grounds for divorce In leaving the home and marriage --- she deserted Forfeiter her right to spousal support Desertion constitutes grounds for divorce in 27 jurisdictions Most states require desertion to continue for a year A spouses mere departure is not sufficient to prove desertion. o Desertion requires a cessation of cohabitation, without cause or consent, but with intent to abandon, continuing for a statutory period. o Separation and intent need not occur contemporaneously o Separation without the requisite intent will not constitute desertion; subsequent intent formed after will suffice The desertion then dates from the time the intention is formed o Desertion must also occur without justification Other grounds for divorce: Habitual drunkenness or drug addiction Incurable impotence Failure to support Criminal conviction and/or imprisonment Insanity ><><><><><><><><

Fault Based Defenses

Traditional fault-based defenses include:

1. 2. 3. 4.

recrimination condonation connivance collusion

Bars divorce in cases which both parties are at fault Rationale: Clean hands doctrine Divorce should only be permitted to be given to innocent spouse Preservation of marriage Need to provide economic support for women by denying them a divorce in order to force husband to support them Harshness had led to some courts developing the Doctrine of Comparative Rectitude Court will compare fault The person who is least at fault will get divorce Recrimination tends to only be raised as an issue only when one party was dissatisfied with the property arrangements

Parker v. Parker
Grounds cruelty Petitioner wife(denied the divorce) o Defense recrimination (equal guilt) ---adultery Husband was abusive to wife; watched her, falsely accused her of cheating, stalked her etc Wife filed for cruelty ---- Husband countered with recrimination Trial judge denied the divorce Recrimination found on the basis of equal guilt of the complainant that bars his right to a divorce, and the principal consideration is one must come with clean hands o Record shows she did not commit adultery o She only did so after separation and dissolution of the marriage o Judge erred in not granting the divorce Recrimination only surfaces occasionally as a divorce defense

Under the principal of condonation, a spouse who has once condoned a marital transgression by his mate is thereafter barred form using that transgression as grounds for divorce

Grounds that may be condoned adultery, cruelty, habitual drunkenness and desertion pardon the offense or forgiveness by the spouse o exists if spouse resumes sexual relations with wrongdoer, following knowledge of the wrongdoers misconduct o harsh application to the forgiving spouse rationale: reconciliation

Haymes v. Haymes
petitioner wife grounds abandonment defense condonation Husband stopped having sex with wife Husband moved out and had several adulterous affairs They tried to reconcile but failed (they had sex during this time) She filed divorce o He is claiming condonation because they tried to reconcile after his affair Whether a relatively brief reconciliation should require plaintiff to forfeit these otherwise facially valid causes of action for divorce o Couples should be encouraged to try to reconcile o Preserve the family unit o Reconciliation does not, as a matter of law, preclude an entry of judgment for plaintiff who originally had a valid claim for abandonment o Trial court needs to examine totality of the circumstances Under the Principal of condonation a spouse who has once condoned a marital transgression by his mate is thereafter barred from using that transgression as grounds for divorce. Grounds that could be condoned is: Adultery, cruelty, habitual drunkenness, and desertion

constitutes an express or implied consent by the plaintiff to the misconduct alleged participation in, or consent to, the defendants wrong conduct He who consents cannot receive injury Petitioner with unclean hands is not entitled to equitable relief Some states limited divorce to innocent parties and a conniving spouse was not an innocent party

Example: husband knows wife thinks butler is hot, is arranges for them to have sex;

agreement between husband and wife to (both parties consent) 1) commit a marital offense in order to obtain a divorce 2) introduce false evidence of a transgression not actually committed or 3) suppress a valid defense

Connivance Includes consent by one spouse to the other spouses marital misconduct Has to be a wrong involved

Collusion Includes a spousal agreement to commit a marital wrong Does not have to include a wrong

No Fault Divorces
All states currently offer some form of no fault divorce California Family Law Act (first no fault statute) 1) Permits irreconcilable differences which have caused the irremediable breakdown of the marriage Those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved Uniform Marriage and Divorce Act 1) Irretrievably broken Shown by either a 6 month separation or a showing of serious marital discord adversely affecting attitude of the parties Early No Fault Divorces: Require Living Separate and Apart: Some statutes require you to live apart for a certain time period May infer both to physical separation and the intention to dissolve the marriage

Modern No Fault:
Rationale: divorce was not caused by the fault of a party, it is caused by the gradual breakdown of the relationship Problems with No Fault Some states define irretrievable breakdown using fault Some confusion as to if can use fault based defenses in no fault jurisdiction

Majority of jurisdictions will grant a no-fault divorce even if only one spouse contends that the marriage is ended No fault divorces have surmounted constitutional challenges on grounds of: Vagueness Due process An impairment of contract rights Some states still use fault based divorces: <><<><><><><><><><><><><><><><><><><><><><><><><><><><><><><><>

Access to Divorce
Economic Obstacles:

Boddie v. Connecticut
Poor people are challenging the state statutes which require filing fee for obtaining a divorce Must go to court to dissolve divorce o Boddie is on welfare and barely has enough for essential o States monopoly in dissolving the marriage Fundamental right to marriage State also has to give procedural due process o Hearing and notice o This is the equivalent of denying opportunity to be heard and denial of due process States interest prevent frivolous litigation, allocate scarce resources o However, none of these are sufficient to override plaintiffs interest Should be afforded an opportunity to go to court to get divorce Hold state may not, consistent with the obligations imposed on it by the due process clause of the 14th amendment, pre-empt the right to dissolve this legal relationship without affording all citizens access to the means it has prescribed for doing so Boddie is limited to plaintiffs who make a showing of indigency and who seek a divorce in good faith Procedural due process Pro se Divorce No fault divorces has Diminished use of lawyers Has grown in many years

Access to Alternatives to Divorce Aflalo v. Aflalo

Asking the court to force Jewish church to give her a get Orthodox Jews o Jewish divorce I free you and you are an independent person

o Signed by husband and given to the wife o Then they must go in front of religious court and obtain the religious divorce o Husband has to give the get --- leaves wife open to exploitation Jewish couple married, wife filed for divorce Husband refuses to give the wife a get --- will not consent to a Jewish divorce Should not apply Minkin case o That case looked at it under Establishment Clause, not the Free Exercise Clause ---Free Exercise prohibits government from being entangled in religion o This is a religious act ---Minkin said get was civil not religious o Minkin did not recognize forcing husband to give get would not have the same effect This Jewish marriage and Jewish beliefs are the wifes own ---- she made this choice o She made her bed, now lie in it o She is trying to tear down wall between separation of church and state


Divorce Jurisdiction
Over the Plaintiff and Defendant In re Marriage of Kimura
Wife and husband were married in Japan in 1965, and both are Japanese citizens Husband moved to Iowa to be a pediatric surgeon at hospital there Husband filed divorce in Japan, he then withdrew from proceeding He then filed for divorce in Iowa o Wife is contesting jurisdiction Whether domicile is enough for personal jurisdiction over the divorce Commonly held essential element to grant a divorce, or jurisdiction, is domicile o Divorce is a rem action o The divorce is the res o This res follows the domiciles of the spouses Divisible divorce doctrine a court may grant divorce against an absent party, but may not adjudicate anything incident to the marriage, such as child support and alimony and property division Jurisdiction in divorce does not depend on minimum contacts, as with other actions Domiciles continues to be a bases for jurisdiction Whether Ken established domicile o Under Iowa law husband had to show resided in Iowa for one year and residence was there in good faith o Domicile fixed habituation with no intent to leave it o Once domicile is established, it continues until a new one id established

o Ken meet the requirements --- bank accounts, drivers licenses etc To terminate a marriage, the Plaintiff must be domiciled in the forum state. Personal Jurisdiction over the Defendant is not required. However, PJ is required to adjudicate anything incident to the marriage, alimony and property settlement Divisible Divorce Doctrine - Since court only has jurisdiction over one of the parties, the court can only render a divorce decree The court may not determine the support and property rights of the absent spouse because of no personal jurisdiction Because depriving person of property without due process is violation of procedural due process Domicile must have physical presence plus intent to remain permanently Different than residence Ex parte divorce court has personal jurisdiction only over one spouse Bilateral divorce court has personal jurisdiction over both spouses Note: Jurisdiction to terminate a same sex marriage or domestic partnership Many questions arise in this situation where trying to dissolve in a different state States are divided with whether they will dissolve the same sex marriage DOMAs complicate matters - because it allows another state to refuse to recognize the marriage

Durational Residency Requirements

Must be domiciled in that State for a specific time period A requirement in that state for domicile May impose a barrier for those who just moved into the State

Sosna v. Iowa
Husband and wife married in Michigan; lived together in New York; wife then moved to Iowa with her children and filed for divorce there Husband was personally served when he came to visit children Court dismissed action for lack of jurisdiction because wife did not meet the residential duration requirement o 48 states impose some type of durational requirement for divorce o Argument of the wife

Unconstitutional because it establishes two classes of people and discriminates against those who have recently exercised their right to travel to Iowa ---- relied on Shapiro (no duration for voting) Shapiro did not completely ban durational requirements States interest in not having other states attack validity of the decree Do not want to become a divorce mill Unconstitutional because it denies the litigant the opportunity to make an individualized showing of bona fide residence and therefore denies residents access to the only method for dissolving the marriage ---- relied on Boddie Here wife is not entirely foreclosed from eventually seeking divorce ---- just delayed access

Full Faith and Credit Clause requires a state give full faith and credit to a decree of the sister state provided the sister state had jurisdiction o Mandatory doctrine o Applies only to other states Comity an American jurisdiction may recognize a divorce entered in another country but it is not mandatory Discretionary doctrine Applies only to other countries

Domestic Relations Exception to Diversity Jurisdiction

Under the domestic relations exception to federal jurisdiction, federal courts traditionally declined to exercise jurisdiction over matters of domestic relations even in cases in which plaintiffs could establish the requisite diversity of citizenship and amount in controversy

Ankenbrandt v. Richards
Mom brought this action on behalf of daughters, suing her ex husband and his new woman for sexually abusing the children Suing in federal court on diversity jurisdiction District court dismissed because they said it fell with the domestic exception doctrine o Domestic Relations Exception federal courts do not have jurisdiction to issue divorces, alimony, and child custody decrees However, this case falls into none of these --- this is a tort cases Diversity jurisdiction was proper in this case This case narrowed the exception ---- before it applied to any domestic related case Abstention doctrine provides that federal courts may refuse to adjudicate civil proceedings that involve important state interests or substantial policy concerns founded on federalism

Financial Consequences of Dissolution
Dissolution entails division of property and an award of spousal support spousal support is called maintenance marriages with child with have support order fault seems to slip in to the equation in property division the innocent spouse gets more Private ordering allowing divorcing parties to negotiate their own financial arrangements in separation agreements and premarital contracts Studies have shown that states that have no fault divorces --- the wives get less money because common law award support to the innocent wife many wives have to sell the home become impoverished

Property Distribution:
Ferguson v. Ferguson
wife was a homemaker, while her husband worked Wife filed for divorce on grounds of adultery o Chancellor awarded her custody of child, $300a month child support; the marital home and contents; four acres of land; title to be divested from husband to wife (free and clear); interest in husbands pension plan, stock, savings; maintenance of $400 per month and lump sum alimony of $30,000 Mississippi is separate property state o System that merely determined title to the assets and returned that property to the title holding spouse o Flaws Does not take into account the non-financial contribution of a spouse Creates a likelihood of unjust division of property o Awarding alimony and child support stem from common law legal duty of the husband to support the family o Fairness is the prevailing guideline in marital division A spouse who has made a material contribution toward acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding Abandoned the title system and adopted equitable distribution

Common Law --- title theory/ title system Title to property determines ownership between the spouses Property acquired during marriage belongs to the acquiring spouse Upon divorce, court assigns property to the owner o Thus, homemaker had no right to share in the property acquired by her husband Traditional rationales for distribution of property o Fault, need, status Community Property 9 states (derive from their French or Spanish heritage) Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin Recognize marriage as a partnership Give each spouse an undivided one half interest in property acquired by spousal labor during the marriage Apply rule of a presumption of equal division at dissolution Court divide only acquired marital property ---- excluding separate property Takes into consideration the contribution of both spouses Equitable Division Most states that followed common law now adhere to equitable distribution 1980s Equitable distribution has replaced title system Objective order a fair distribution of the property Has survived all constitutional challenges Florida Statutes 61.021 Residency requirement One of the parties to the marriage must reside 6 months in the State of Florida before the filing of the divorce petition Can show valid Florida drivers license, Florida voter registration card, Florida identification card, testimony or affidavit of a third party (61.052) Florida Statutes 61.052 Dissolution of Marriage (Grounds) No divorce shall be granted unless one of the following facts appear Marriage is irretrievably broken Mental incapacity of one of the parties Court shall dispose of the irretrievably broken marriage as follows: If no minor child and responding party does not deny the marriage is broken ----Court shall enter dissolution if the court finds the marriage to be broken Where there is a minor child OR responding party denies by answer the Court may: o Order marriage counseling o Continue proceedings to try to reconcile

o Take such other actions that are in the best interest of the parties and the minor child If at any time court finds marriage irretrievably broken ---Shall dissolve marriage If at any time court finds marriage is not broken ---- shall deny petition for divorce Court may make appropriate orders for support, alimony, child support, custody etc Judgment shall render each spouse single. An injunction in a domestic violence cases must be entered separately Florida Statute 61.075 Equitable Distribution The Court shall set apart to each spouse that spouses non-marital assets and liabilities and As for marital assets and liabilities o Distribution should be equal, unless there is a justification for an unequal distribution based on the following factors: Contribution to the marriage (including homemaker services) Economic circumstances of parties Duration of marriage Interruption of personal careers or educational opportunities Contribution of one spouse to the personal career or education of the other spouse Desirability of retaining any asset Contribution of each spouse to the acquisition, enhancement, production of income marital and non-marital assets Desirability of maintaining a marital home as a residence for dependant child Intentional dissipation, waste, depletion or destruction of marital assets after the filing of the petition Any other factors necessary to do equity and justice between the parties If court awards cash payment for purpose of equitable distribution --- shall not terminate at death or remarriage and shall be treated as a debt owed Any contested divorce --- any distribution shall be supported by factual findings in judgment Shall include specific written findings of fact as to the following: Clear identification of non-marital assets Identification of marital assets Identification of the marital liabilities and who should be responsible for them Any other finds necessary to advise parties

Any distribution shall have effect of a recorded conveyance, transfer, release Marital Assets and Liabilities include: Assets or liabilities incurred during marriage (by either spouse or jointly) Enhancement in value and appreciation of non-marital assets (during marriage) Inter-spousal gifts during the marriage All vested and non-vested benefits, rights accrued during the marriage in pension plans, profit sharing insurance programs etc All real property held by the parties as tenants in the entireties (shall be presumed to be marital assets unless rebutted) Non-Marital Assets and Liabilities include: Assets and liabilities acquired prior to marriage Assets acquired separately by either party by gift, bequest, devise or descent --and assets acquired in exchange for these assets All income derived from non-marital assets during marriage unless income was relied upon and used as a marital asset Assets and liabilities excluded from marital assets by valid written agreement Any assets acquired by forgery or unauthorized signature of either spouse Cut off date for determining assets and liabilities is the earliest of the date the parties enter into a valid separation agreement Unless stated Judge will determine what day is just All assets acquired subsequent to the marriage is presumed to be a marital assets This can be overcome by a showing that the assets are non-marital Presumption is for evidentiary purposes only Court may provide for equitable distribution without regard to alimony for either party After equitable distribution ---court shall consider whether a judgment for alimony shall be made Personal injury award given to one spouse? Is this marital property or separate property? Whatever amount given for lost wages is marital property Pain and suffering is separate property (personal to person experiencing it) Florida Stat. 61.076 Distribution of retirement plans upon dissolution All vested and non-vested benefits, rights and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution

Florida stat 61.08

Court may grant alimony to either party o Can be rehabilitative or permanent Can be periodic payments or lump sum The Court may consider the adultery of either spouse and the circumstances thereof in determining amount In determining proper award for alimony, the court may consider all relevant economic factors, including but not limited to: o The standard of living established during the marriage. o The duration of the marriage. o The age and the physical and emotional condition of each party. o The financial resources of each party, the non-marital and the marital assets and liabilities distributed to each. o When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. o The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party. o All sources of income available to either party. The court may consider any other factor necessary to do equity and justice between the parties. (can look to domestic violence) To protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase and maintain life insurance policy or bond The court shall direct payments to be made through depository o If there is no minor child, there is no need to direct payment through depository o If there is a minor child, court may order that payments do not need to be through a depository Either party can subsequently apply to have to done through depository Taxes alimony is a tax deduction to payor And taxable income to payee o Need Structure payment to look like alimony LUMP SUM Alimony --- lump sum is not alimony------further it is considered property award -----cant modify it Cant modify property award Alimony and child support is modifiable

There should be a need and an ability to pay alimony

Alimony terminates upon remarriage Adultery by itself is not enough, there needs to be a depletion of assets Cant be increased or decreased simply because of adultery Orr v. Orr License or law degree should be considered property Florida looks at career building for alimony and equitable distribution Childs permanent home should not be disturbed Always do equitable distribution first, then see if alimony is needed Look at property first Alimony awards is disfavored Cohabitation with another may affect alimony: Florida Stat. 61.14 o The Court may reduce or terminate an award of alimony upon specific written findings that the payee is supporting another or they are being supported by another a supportive relationship o The burden is on the payor to prove by a preponderance of the evidence that a supportive relationship exists o The court elicit the nature and extent of the relationship in question o Court shall give consideration to: (including but not limited to) How the alleged couple has held themselves out to be married couple using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife," or otherwise conducting themselves in a manner that evidences a permanent supportive relationship period of time they resided together extent to which couple has pooled their assets or show financial independence extent each has supported each other extent one has performed valuable services for another or their employment whether the couple have worked together to create or enhance anything of value whether the couple jointly contributed to purchase property

whether there is an express agreement or implied agreement regarding sharing property whether either party is providing support to the children of one another

With cohabitation --- to modify alimony you have to prove --o Money is she supporting him or vice versa o Cohabitation might effect alimony --- need to make sure separate bank accounts and no commingling Need to keep an accounting No money to turned over or received by partner

Child Support
Family Support Act of 1988 All states are required to enact guidelines for child support It is tied to funding and spending for welfare Became necessary because amounts were too low or none at all It was too discretionary and variable Average award was less than average car payment per month Failure to pay is real problem Florida Statute 61.30 Child support guidelines shall be used to determine child support o Judge may order payment which varies, plus or minus 5%, from the guideline amount, after considering all relevant factors needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent o Judge may order amount that varies more only upon a written finding explaining why he is ordering this amount (such as the other would be unjust or inappropriate) Guidelines may provide basis for proving a substantial change in circumstances o Difference Has to be more than 15% or $50(which ever is greater) to change Income shall be determined on a monthly basis: o Gross income: Salary, wages Bonuses, commissions, allowances, overtime, tips Business income Disability benefits Workers compensation Unemployment benefits Social security benefits Spousal support from previous marriage

Interest and dividends Rental income Income from royalties, trusts, or estates o Income shall be imputed when unemployed parent is found to be unemployed voluntarily (absent mental incapacity etc) Potential employment will be determined by looking at recent work history, qualifications, community earnings The court may refuse to impute if staying at home is necessary Net income shall be computed by subtracting allowable deductions from gross income Net income for both parties shall be added together for combined income Then look to schedule for payment You take child care costs (reduced by 25%) and add to total Each parents percentage share is determined by dividing each parents income by the combined income Each parents actual dollar share determined by multiplying minimum child support need by each parents percentage share The court may adjust this amount accordingly Florida uses income share model ----- child shall get same amount would have got if parents didnt divorce (must look at income of both parents) o Basic support is based off combined income and number of children o Then pro rate between parent o Example: Ken earns $2368.61,Sally $2286.57 Combined $4,655.18 Sally Pro rate ---- 2286.57/4655.18 = 49.12% Ken Pro Rate ---- 2368.61/4655.18 = 50.88% Then go to chart Custodial parent is assumed to be paid directly to cost of child We add cost of day care and reduced by 25% Health insurance must be ordered if it is reasonable available Noncustodial parent is father and he remarries and has two children --- he goes to court asking for modification of child support order concerning first family based on change if circumstances that he has more children to support? What statute? 61.30 (12) If parent who has support obligation has other subsequent children---o The court may disregard income from secondary employment obtained in addition to the parents primary employment if the court determined that the employment was obtained to support that other child

o The existence of another child should not as a general rule be considered as a basis for disregarding amount The parent with a support obligation for subsequent children may raise the existence of such subsequent children as a justification for deviation from the guidelines. o However, if the existence of such subsequent children is raised, the income of the other parent of the subsequent children shall be considered by the court in determining whether or not there is a basis for deviation from the guideline amount. The issue of subsequent children under paragraph (a) or paragraph (b) may only be raised in a proceeding for an upward modification of an existing award and may not be applied to justify a decrease in an existing award. o Cant decrease child support award for having other children Child support ends at the end of maturity (a statute allows to extend if in school) You can still make private arrangements Florida Stat. 61.13 The Court at any time can order either party to pay their support o Court initially making the child support order has continuing jurisdiction to modify the amount, terms etc (when modification is in the best interest of the child or substantial change in circumstances) o Court has continuing jurisdiction to make them pay Each order shall contain health care coverage when reasonably available The amount withheld by a union or employer (garnished) may not exceed the requirements of Consumer Protection Act o Any employer not willing to do this will be subject to civil penalty Court shall have jurisdiction to determine custody, notwithstanding that the child is not in the state --- if it appears child was removed in attempt to avoid determination or modification of custody Court will determine all matters relating to custody in the best interest of the child o It is public policy to assure each parent gets contact with child o Father of the child shall be given the same consideration o The court shall order that parental responsibility unless the court finds that shared parental responsibility would be detrimental to the child Domestic violence creates rebuttable presumption (however convicted parent is not relieved of money obligations) Court shall determine domestic violence of child abuse as evidence of detriment to the child Court may grant one party ultimately responsible for welfare of child (based on best interest of the child) When looking at the best interests of the child, the court will evaluate: the parent who is most likely to let other one see child

love, affection and other emotional ties capacity for parent to provide for child length of time child has lived in a stable environment and desirability of maintaining that stability performance of existing home moral fitness of parents school of child reasonable preference of the child willingness and ability of parent to facilitate close relationship with other parent evidence that any party has knowingly gave court false information regarding domestic violence evidence of domestic violence or child abuse any other fact relevant The custodial parent shall not refuse to let other see child; and other parent shall not refuse to pay obligation the court may order extra visitation to compensate When seeking court ordered payment: The State can revoke professional licenses (except attorneys) revoke drivers license (some exceptions) income deduction orders -- contempt (civil and criminal you know by what punishment is given out) (criminal contempt you can not purge your contempt) Florida Stat. 61.121 The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child shared parental responsibility model

Challenge of Multi-State Cases: Jurisdictional limitations on Establishing Awards

Kulko v. Superior Court
Husband and wife married in California (when he was on leave from military) Parties domiciled and residents of New York Wife moved to California ---went to Haiti and got divorce o They has separation agreement where husband would keep kids o The children then wanted to live with mother Father sent one there and the other got ticket from mother Mother is now seeking modification of support order and custody order o California said long arm statute reached him in New York --- PJ was fair and reasonable

o This court thinks lacks minimum contacts o The lower court relied on the fact he left his kids visit his wife This would discourage parents from entering into agreements The husband never purposefully availed himself of the forum state and this was a unilateral activity His contacts were domestic and personal --- totally unrelated to the action NO PJ o Remember divisible divorce doctrine --- due process requires jurisdiction over both spouses to resolve any financial incidents of dissolution, although you can get divorce o Husband is immune from support litigation until he visits California to visit his kids and then they can get him for tag jurisdiction