Family Law

UPA "Frozen Embryo" Issues

A "frozen embryo" is the result of in vitro fertilization that is cryogenically preserved. Issues concerning ownership and parentage are complex and continue to be unresolved. Additional problems surface when one of the individuals who provided the egg or sperm dies, or the individuals get divorced. Absent an agreement, the decision as to whether or not transplantation will take place is made by weighing the interests of the parties. Ultimately, resolution of these issues may turn on whether the embryo is classified as a person or as property.

Children's Right to Consent to Medical Care

A child's rights regarding medical care vary depending on the age of the child and the medical procedure. Children over a certain age may be able to provide the consent needed for treatment. Otherwise, parental consent is almost always necessary before a child can receive emergency medical treatment, even though the state may override the parent's failure to consent when the child's life is at risk. Nevertheless, in nonemergency situations, minors are allowed to consent to abortions, receive treatment for sexually transmitted diseases, and obtain birth control without the consent of their parents.

Termination of Custody

A child-custody order terminates upon the custodial parent's death or upon the child reaching the age of majority. In cases of death, the surviving parent generally receives custody of the child.

Significant-Connection Jurisdiction over Custody

A court can enter or modify an order if (i) *no other state* has or accepts home-state jurisdiction, (ii) the child and at least one parent have a *significant connection* with the state, *and* (iii) there is *substantial evidence* in the state concerning the child's care, protection, training and personal relationships.

Initial Custody Determination (Home State Jurisdiction)

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: i) The child's *home state* and has been the home state for a period of *six months* or since birth, if the child is less than six months old; or ii) Was the child's home state in the *past six months,* and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Enforcement of Another State's Custody Orders-- Registration

A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certified copy of the order from the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order.

3rd Party Visitation-- "Special weight" to a fit parent's decision

A fit parent has a fundamental right to the care, custody, and control of his children. Troxel v. Granville, 530 U.S. 57 (2000). Troxel requires that state courts must give "special weight" to a fit parent's decision to deny nonparent visitation; "special weight" has been held to mean a very significant difference.

Paternity Estoppel

A husband who is not the biological father of his wife's child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when: i) There is a representation by the husband that he would provide for the child; ii) The wife relied on his representation; and iii) The wife suffered an economic detriment as a result of the reliance (e.g., loss of opportunity to obtain child support from the child's biological father). Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights. See R.W.E. v. A.B.K., 961 A.2d 161 (Pa. Super. 2008). However, some states have recently begun placing greater emphasis on the interests of men who have been erroneously identified as fathers. In these jurisdictions, a husband's child support may be terminated, and paternity may be disestablished, without regard to a child's financial interests.

Temporary Emergency Jurisdiction over Custody

A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, then the emergency order remains in effect until a decision is rendered by the child's home state. If no future determination is made, then the emergency order continues in full force and effect.

Religion not a Fault Defense

A litigant that challenges a divorce on religious grounds will fail in all jurisdictions.

Lump sum

A lump-sum spousal support award is a fixed amount and may not be modified.

Voidable Marriage-- Impotence

A marriage is voidable if one party is "naturally and incurably" impotent, unless the other party knew about the condition before the marriage.

When marriage license not issued

A marriage license will not be issued when: i) One of the parties is *married to someone else;* ii) The parties are *too closely related* as defined by statute; iii) The parties entered into the marriage as a *sham;* or iv) The parties are *incapable of understanding* the nature of the act. Most jurisdictions further provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were *under the influence* of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent due to duress or fraud.

Limits on Parental Authority

A parent's authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. Child abuse and neglect laws, as well as compulsory school attendance statutes, are in place to ensure that a child is well taken care of and supervised appropriately. As has been discussed, the state may terminate parental rights despite parents' constitutional right to raise their children when it is in the best interests of the child. Grounds for termination include abandonment, neglect, failure to support, or inflicting serious harm, among others. The state must prove these allegations by clear and convincing evidence because of a parent's right to due process.

Termination of Child Support

A parent's obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age). Some jurisdictions, however, have the authority to order support beyond the age of majority when the child is in college. An additional exception applies when an adult child is unable to support himself due to circumstances such as a mental or physical disability. In most jurisdictions, termination may also take place if the child marries, the parental rights are terminated, the child commences active duty in the military, or the parent or child dies. A court, however, does have the right to order that a parent obtain insurance on his life for the benefit of the children to provide future support after his death. Additionally, support may be terminated if a child is *emancipated* before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of influence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. Also, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support. EXAM NOTE: If there is a question as to whether a minor child has been emancipated, discuss the totality of the circumstances.

Visitation Enforcement-- Sanctions

A party seeking enforcement of child-custody and visitation orders can request assistance through the court system. The court hearing the case may impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody. In most states, a party cannot be denied parenting time for his failure to pay child support, or based merely on a child's wishes.

Voidable Marriage-- Age

A party who is under the age of consent to marry and who did not seek the consent of his parents or the court may apply to have the marriage annulled. If the partner, however, is of legal age to marry, then the partner may not attack the validity of her marriage to an underage person. In many states, the declaration of validity may also be brought by the underage party's parents or legal guardian. Many courts, however, will prohibit the filing of an annulment based on age once the party who was not of legal age has attained such age and continued to freely cohabit with the other party as a married couple.

Future interest

A possible future interest in property (e.g., inheritance) is not distributable.

Premarital Agreements

A premarital (also known as "prenuptial" or "antenuptial") agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement. Many jurisdictions have held that a premarital agreement must *expressly state its applicability to divorce proceedings.* Additionally, the majority of jurisdictions find clauses relating to child custody and support unenforceable. When there is an issue as to which state's law will govern whether a premarital agreement is enforceable, most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage. Some states apply the law of the state where the agreement was executed.

Validity of Marital Agreements

A premarital agreement is enforceable if there has been *full disclosure,* the agreement is *fair and reasonable,* and it is *voluntary.* The agreement must be *in writing and signed* by the party to be charged. The agreement may be amended or revoked after the marriage, provided both parties sign a written agreement to that effect. The burden of proving its invalidity is by clear and convincing evidence. If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result.

Unconstitutional time limit on a paternity petition

A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government's interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate children. The suit may be brought by the child or the child's mother. The standard of proof varies by the jurisdiction, but it could be as low as preponderance of the evidence or as high as clear and convincing proof.

Void Marriage

A void marriage is treated as if it never happened. It does not need to be judicially dissolved and will not be legally recognized for any purpose.

Voidable Marriage

A voidable marriage is valid until one spouse seeks to legally void the marriage. There *must be a judicial decree* to dissolve the marriage. Grounds for a voidable marriage include age, impotence, intoxication, and fraud or duress.

Child Support-- Other Considerations

Additional factors that the courts consider in determining the amount of support include: i) Ages of the children; ii) Unusual needs and unusual obligations (e.g., special education); iii) Support obligations of the parties; iv) Assets of the parties; v) Medical expenses outside of insurance coverage; vi) Standard of living; vii) Duration of marriage, for spousal support or alimony pendente lite; and viii) Best interests of the child.

Adoption

Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established. Once the adoption has been completed, a new birth certificate with the adoptive parents' names is issued for the child. The records for most adoptions are sealed and kept confidential, but many states allow the adopted child to receive medical information on the birth parents. Additionally, most states have residency requirements for the county in which the adoption will take place and prohibit the payment of money to the natural parents other than costs related to medical care connected with the pregnancy.

Fault-- Adultery

Adultery is voluntary sexual intercourse with someone other than one's spouse. Because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. It *must be shown that a party had the opportunity and the inclination* to commit adultery. The facts of the case must provide enough evidence to conclude that the person was guilty of the adulterous act.

Approval of adoption

After a thorough investigation regarding the fittingness of the adoptive parents, the courts either approve or deny the adoption. The investigation may be waived if the adoptive parents are close family members of the child.

Tax Consequences of Support

Alimony is considered taxable income to the recipient and is deductible by the payor. A parent cannot, however, deduct child-support payments as alimony or include them as income. The custodial parent automatically gets the child dependency exemption, unless the parties agree otherwise. Often the parties agree to alternate the exemption. The parent who pays medical expenses may deduct those expenses.

Ceremonial Marriage Licenses

All U.S. jurisdictions impose *minimum age restrictions* on individuals who wish to marry. Almost all U.S. jurisdictions require an individual, in the absence of parental consent, to be at least *18 years old.* All U.S. jurisdictions permit individuals less than 18 years old to marry, generally requiring parental consent to, and/or judicial approval of the marriage. Statutory age requirements for marriage have withstood constitutional scrutiny. See, e.g., Moe v. Dinkins, 669 F.2d 67 (2d Cir. 1982) (the rational-basis test applies to the minimum age requirement to marry, and the state's important interest in promoting the welfare of children by preventing unstable marriages among those who lack capacity is a legitimate state interest). Additionally, most U.S. jurisdictions impose a *waiting period* between the date of the marriage and the date of the marriage ceremony. The waiting period may typically be waived by the court in cases of an emergency. By statute, most U.S. jurisdictions impose an expiration date on a marriage license.

Amount of Child Support

All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards. Child-support awards are typically based on income from any source and include wages, interests and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income. The guidelines are applied in all cases regardless of marital status.

Modification of Marital Agreements

Although a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.

Visitation Enforcement-- Habeas Corpus Proceedings

Although not available for child-custody disputes or visitation rights, a habeas corpus proceeding is a way in which a person who claims to have custody of a child, but does not have physical custody of the child, can be heard by the court. In addition, during these proceedings, many jurisdictions will revisit the issue of which placement is in the best interests of the child. Less limiting than habeas corpus is a suit in equity action, which enjoins conduct in violation of a custody order. The current trend has been to use suits in equity over habeas corpus proceedings.

Grandparent visitation

Although the majority of jurisdictions have statutes regarding grandparent visitation, they differ among states and often do not guarantee the right to visit. In Troxel, the Supreme Court specifically implicated a *fit parent's fundamental right to the care, custody, and control of the children in relation to grandparent visitation.* Courts examining the request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and what is in the best interests of the child.

Annulment

An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage). An annulment action involves two types of relationships: void and voidable.

Unwed biological father visitation

An unwed biological father has a *substantive due process right under the U.S. Constitution to have contact with his child.* However, this right exists only when the father *demonstrates a commitment to the responsibilities of parenthood* (e.g., participation in child rearing or providing financial support). In addition, many states have imposed a two-year limit on the establishment of paternity by an unwed biological father. Further, if the mother is married to another man and refuses to join in a paternity petition, then a state may preclude the purported biological father from pursuing the paternity petition.

Jurisdiction

As with a court hearing other matters, a court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction. The Full Faith and Credit Clause applies to divorce decrees as long as one of the spouses was domiciled in the state that granted the decree. Matrimonial courts have full equity powers in matrimonial actions, which include: i) Division of property; ii) Divorce or annulment; iii) Custody; iv) Support and alimony; v) Award of attorney's fees; vi) Enforcement of separation agreements; and vii) All other matters related to matrimonial actions.

Support During Marriage

At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties' station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses and often refer to them as family expense statutes. A minority of jurisdictions has abolished the doctrine as a violation of equal protection rights. In those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse.

Parental Consent-- Religious Beliefs

At times, the parent's religious beliefs can conflict with what may be in the child's best interests. Often seen in cases in which medical treatment contradicts religious beliefs, the court can intervene, under the theory of parens patriae, to protect a child when necessary medical care is needed to prevent serious harm to the child's health. Prince v. Massachusetts, 321 U.S. 158, 170 (1994) ("Parents may be free to become martyrs themselves. But it does not follow they are free...to make martyrs of their children."). In those situations, a child can be declared neglected and the medical treatment ordered. In some states, there are exemptions to the finding of abuse or neglect that permit the state to order the requisite medical care without finding the parent at fault. Such action by the court is typically taken only when the medical treatment is life-threatening and only after the court balances the risks and benefits of the medical treatment. The home state has jurisdiction if it has been the home state of the child within the six months prior to the beginning of the custody proceeding.

Palimony

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable, long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). The treatment of such cohabitation agreements and the resulting support of palimony vary among jurisdictions. A majority of jurisdictions distinguish between contracts that are based on sexual services and those in which the agreement is independent of the illicit relationship. Some courts also permit remedies to unmarried couples based on an implied-in-fact contract, resulting trust, constructive trust, or quantum meruit theories. In most states, the Statute of Frauds does not require that an express contract between cohabitants be in writing. Alimony and spousal maintenance payments are generally taxable as ordinary income to the recipient and deductible by the payor.

Fault-- Bigamy

Bigamy, which in most jurisdictions is also grounds for annulment, occurs when one of the parties in the marriage *knowingly* entered into a prior legal and existing marriage before entering into the current marriage.

Child's Right to Support

Child support is the payment by one parent to the other for the support of a common child. The duration of child support varies with each jurisdiction. In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children (i.e., unemancipated and 18 years of age or younger). Some jurisdictions, however, continue that obligation through college. Additionally, child support can be continued, even indefinitely, for a child incapable of self-support, provided that the inability to support is linked to a physical or mental disability. The payment of child support is entirely separate from visitation rights. Such rights cannot be denied for nonpayment of support. Parents cannot bargain away child-support payments, regardless of whether they intended to have a child. Parents can enter into private agreements regarding the payments, but they cannot agree to any release or compromise that would negatively affect the child's welfare.

Rights and Obligations of Children

Children are provided with special rights and limitations compared to adults. These distinctions are meant to protect children as well as provide them with expanded rights when necessary. In many cases, as with property and contracts, children may convey property or enter into contracts as minors, but upon the age of majority they have the option of disaffirming the transaction. Conversely, a child does not have the capacity to make a valid will.

Enforcement of Awards-- Civil Contempt

Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt and can be sent to jail and held until the amount owed is fully paid. Jurisdictions are currently split regarding whether the appointment of counsel is constitutionally required in civil contempt cases when the defendant is indigent.

Fault Defense-- Collusion

Collusion occurs when both spouses "conspired to fabricate" grounds for divorce. Collusion defenses are not as common since the adoption of no-fault grounds in many jurisdictions.

Common-Law Marriage

Common-law marriages are defined as marriages when the parties: i) Agree they are married; ii) Cohabit as married; and iii) Hold themselves out in public as married. Unlike a ceremonial marriage, *no ceremony* takes place and no license is issued for a common-law marriage. A common-law marriage is not valid if either party was married to someone else at the time that the common-law marriage was entered into.

Community Property

Community property is a method for the distribution of marital assets that is used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The guiding principle behind community property is that *marriage is a partnership.* Most community-property states require an *equal division* of the marital property

Fault Defense-- Connivance

Connivance is consent to or participation in the marital wrong, usually adultery (e.g., allowing or benefitting from a spouse's prostitution).

Fault Defense-- Consent

Consent is a defense to desertion or adultery.

Cohabitation Agreements

Contracts between unmarried persons are invalid if the only consideration is sexual relations. Agreements in which other consideration, such as full-time companionship or cooking, is exchanged for financial support will generally be enforced. These contracts may be express, regarding earnings or property rights, or implied. However, courts are less likely to enforce an implied contract.

Spousal Maintenance-- Contributions to the marriage

Contributions by one spouse to the marriage, particularly those that enhanced the earning potential of the other spouse (e.g., education, training), may be considered.

Spousal Maintenance-- Time

Courts also consider the time it will take for a spouse to find employment or to complete any education or training necessary for a job.

Visitation-- Sexual Relationship or Cohabitation

Courts are unlikely to restrict visitation because of a parent's cohabitation with another or a parent's sexual relationship unless the cohabitation has an adverse impact on the children. Although jurisdictions differ in their handling of gay and lesbian relationships, the majority of jurisdictions do not prohibit overnight visitation unless the opposing parent can demonstrate a specific danger to the child's physical or emotional health.

Issues Relating to Indigent Parties

Courts cannot require that an indigent party pay costs and fees to access the court system. Such requirements are unconstitutional. Boddie v. Connecticut, 401 U.S. 371 (1971). Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney's fees and costs if the party is unable to afford the services of legal counsel.

Spousal Maintenance-- Financial resources

Courts consider the financial resources of the spouse seeking support, including property to be awarded in the divorce and any child support. They also take each spouse's earning potential into account, as well as the ability of the spouse from whom support is sought to pay.

Factors in the distribution of marital property

Courts consider the following factors in the distribution of property: i) Length of the marriage; ii) Prior marriages; iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses; iv) Contributions to education; v) Needs for future acquisitions; vi) Income, medical needs, retirement of both spouses; vii) Contributions to increases in marital property, including homemaking and child-rearing services; viii) Value of separate property; ix) Reduction in valuation in marital property by one spouse; x) Standard of living; xi) Economic circumstances of each spouse at the time of divorce; and xii) Custodianship of any minor children. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of the property. However, dissipation of marital property may be a factor. Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.

Enforcement of Awards-- Other Sanctions

Courts may impose other sanctions, such as issuing judgments, intercepting tax refunds, credit bureau reporting, suspending the obligor's driver's license or occupational license, seizing property or assets, garnishing the noncomplying party's wages, and ordering the payment of attorney's fees. Additionally, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) permits the denial of a passport application when the noncustodial parent is more than $5,000 in arrears on his child-support obligation.

Exclusive-Continuing Jurisdiction over Custody

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: i) The *parties no longer reside* in the state; or ii) The *child no longer has a significant connection to the state,* and any substantial evidence connected to the child's condition is no longer available in the state.

Siblings

Courts traditionally avoid separating siblings from each other in order to maintain stability and promote sibling relationships.

Enforcement of Awards-- Criminal Contempt

Criminal contempt is a specific jail sentence imposed upon an obligor who willingly fails to pay the amount owed. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections.

Enforcement of Foreign Custody and Visitation Decrees

Custody and visitation orders between states are enforceable under the Full Faith and Credit Clause if the other state's decree has been registered in the state seeking enforcement. Generally, a local court cannot modify an out-of-state decree, unless (i) the foreign court declines jurisdiction and the local court has proper jurisdiction, and (ii) the out-of-state party is given sufficient notice of the hearing in the local court.

Fault-- Desertion

Desertion (also called "abandonment") results when one spouse, without cause or the consent of the other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis. Most jurisdictions require that the abandonment be for a statutorily designated period of time. Some jurisdictions also find desertion when one spouse forces another out of the marital home, and there is a fear of harm if that spouse returns. If the parties separate by mutual consent, the ground of desertion will not apply.

Divorce

Divorce is a legal dissolution of a marriage. Most jurisdictions recognize both fault and no-fault grounds for divorce. The no-fault statutes eliminate fault and wrong as a ground for dissolution.

Marital Agreements

EXAM NOTE: Marital agreements are subject to the principles of contract law, just as other legal agreements are. When you see a bar exam question dealing with marital agreements and a violation of contract principles, be sure to raise the issue as you would in a contracts question.

Uniform Child Custody Jurisdiction Act (UCCJA)

Enacted prior to the UCCJEA, the UCCJA was established to create a uniform system to resolve interstate custody matters. Although the UCCJA was adopted by all 50 states, by the time of its adoption, Congress had enacted the Parental Kidnapping Prevention Act (PKPA), which conflicted in application to the UCCJA despite its common goal. In its original form, the UCCJA operated on principles that established jurisdiction over a child-custody case in one state and protected a custody order of that state from being modified in any other state as long as the original state retained jurisdiction. Unlike the UCCJEA and the PKPA, the UCCJA did not give first priority to the home state of the minor child. Similar to the PKPA, the UCCJA did not address enforcement of visitation rights. Almost all states have now replaced the UCCJA with the UCCJEA.

Tax Consequences of Equitable Distribution

Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee's tax basis is the same as the transferor's, and the property becomes taxable when it is sold.

Marital Agreements-- Impoverished Spouse

Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.

No-fault Divorce

Every jurisdiction has a unilateral no-fault ground for divorce. The majority of the jurisdictions require a party to allege that the marriage is *irretrievably broken* and there is no prospect of reconciliation (e.g., irreconcilable differences). Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. Most courts also require a specific passing of time prior to the filing of the divorce action; some courts also require a waiting period before the divorce can be granted. The fact that one spouse wishes to reconcile may lengthen the time period for obtaining a divorce, but it is not an absolute bar to a no-fault divorce. Some states also permit the filing of a bilateral, no-fault ground when both parties mutually consent to the divorce; the requirements are typically less than the unilateral no-fault statute. Most jurisdictions have abolished the traditional defenses to divorce. The only defense would be to deny the grounds for the divorce. However, unless both parties agree, this is generally insufficient to prevent the divorce.

Award Enforcement in Other Jurisdictions

Every jurisdiction has adopted the *Uniform Interstate Family Support Act (UIFSA)* to simplify collection of support payments when the obligor or child resides in a jurisdiction different from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state. UIFSA §603(b). If properly registered, the Full Faith and Credit Clause of the U.S. Constitution applies to the order. UIFSA § 603(b). Only the issuing state may modify the original support order; the other state's responsibility is simply to enforce the order. If there is no personal jurisdiction over the obligor, then there is a two-state procedure that can be employed. Under this approach, an enforcement order can be obtained in the issuing state by filing an enforcement petition in the initiating state that will be forwarded to the issuing state's court. UIFSA § 203. EXAM NOTE: The modification and enforcement of interstate child support is always governed by the UIFSA, which has been adopted in every jurisdiction. If more than one state is involved in a fact pattern, always discuss the UIFSA, as the failure to follow its requirements does not result in its enforcement under the Full Faith and Credit Clause of the U.S. Constitution.

State Remedy for Domestic Violence

Every jurisdiction has some type of statute granting civil relief to victims of domestic violence. Although each jurisdiction has its own definition of what constitutes domestic violence, the definitions typically focus on physical abuse, as opposed to mental or emotional abuse.

Fault Divorce

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. Most jurisdictions retain some level of fault-based grounds, although some have removed it from the law since the adoption of no-fault grounds. The use of fault-based divorce grounds has decreased dramatically since the adoption of no-fault-based grounds in most jurisdictions, although fault is often considered when awarding maintenance.

Spousal Maintenance-- Marital misconduct

Fault or marital misconduct may be taken into account in many states in determining spousal support. The weight that the marital misconduct is given in determining alimony is dependent on the jurisdiction, with some considering it as a factor and others giving it a preclusive effect. See Stevens v. Stevens, 484 N.Y.S.2d 708 (3d Dep't 1985) (marital fault may only be considered when the conduct of the recipient is egregious); 23 Pa. Cons. Stat. § 3701(b) (marital misconduct is one of 17 factors to be considered when determining alimony).

Common-Law Marriages-- Mental Capacity

For two parties to enter into a common-law marriage, they both must have the mental capacity to do so. The threshold to determine mental capacity is the same used to determine eligibility to obtain a license in a ceremonial marriage.

Fault Defense-- Condonation

Forgiveness of a spouse is a defense to a fault-based divorce. There must be knowledge of the misconduct and forgiveness of the misconduct, and the party must resume marital relations with the guilty party. It is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce.

Children's Liability for Torts and Criminal Acts

Generally, children are judged by a more moderate standard than adults when determining the liability for tortious behavior. Criminal acts, as well, generally are limited to adjudication in juvenile courts under juvenile laws. The purpose for this is to provide the child with supervision and rehabilitation. Usually, the decision regarding the extent of punishment is dependent on the age of the child; the younger the child, the more likely the court will show leniency.

Visitation and Parenting Time

Generally, the noncustodial parent is allowed reasonable visitation (or "parenting time") with a minor child. Because parents have a constitutional right to have contact with their children, the *denial of visitation is unusual and typically only an issue when it would seriously endanger a child's physical, mental, or emotional health.* The court will, however, place restrictions on the exercise of visitation, such as supervised parenting time or a denial of overnight visits. The parents, by agreement, usually determine the time, place, and circumstances of the visitation. If the parties cannot agree on the circumstances, then the court will determine the particular circumstances surrounding the parenting time.

When Courts Can Decline Jurisdiction over Custody

If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors: i) Whether *domestic violence* has occurred and is likely to continue in the future, and which state could best protect the parties and the child; ii) The *length of time* the child has resided outside of the jurisdiction; iii) The *distance* between the competing jurisdictions; iv) The parties' relative *financial circumstances;* v) Any *agreement of the parties* regarding which state should assume jurisdiction; vi) The *nature and location of the evidence* required to resolve the pending litigation, including the child's testimony; vii) The ability of each state's court to decide the issue expeditiously and the *procedures necessary* to present the evidence; and viii) The *familiarity of each state's court* with the facts and issues in the pending litigation. A court may also decline to exercise its jurisdiction if a party has *"engaged in unjustifiable conduct,"* such as wrongfully removing a child from another state.

Void Marriage-- Prior existing marriage

If either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, then the latter marriage is void. However, if one of the parties had a *good-faith belief that the marriage was valid,* then some states allow the marriage to become *valid once the impediment is removed.* Other states require that once the impediment is removed, the parties must continue to cohabit, and one party must still continue to believe in good faith that it is a valid marriage. There is a *rebuttable presumption that the latest marriage is valid.* This presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into.

Voidable Marriage-- Intoxication

If either party was under the influence of drugs or alcohol at the time of marriage, which made that party incapable of contracting into a marriage, then that marriage may be annulled. In most jurisdictions, however, the parties must be able to demonstrate that they did not ratify the marriage by continuing to voluntarily live with each other after the ceremony.

Fault Defense-- Provocation

If misconduct is provoked by the moving party, then it is not grounds for divorce.

Default Jurisdiction over Custody

If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.

Custody Modification-- Relocation

If the custodial parent is proposing to relocate with the minor child, and the relocation will significantly impair the noncustodial parent's ability to see the child under the court-ordered visitation schedule, then it will almost always constitute a substantial change in circumstances warranting a modification. Note that prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate after applying the below factors. Most states require the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent's visitation. Provided that a legitimate purpose for the move can be ascertained, the trend of the courts is to permit the custodial parent and child to relocate. An application to relocate, however, should be made in advance of the relocation, and it must be based on anticipated present facts, not speculative ones. Applications made after the relocation has taken place are often highly criticized by the court. Among the factors considered by the various jurisdictions are the following: i) The nature, quality, and involvement with the child of the parent who is not seeking relocation; ii) The age and needs of the child and the impact that the proposed relocation will have on that development, including any special needs of the child; iii) The ability to preserve the relationship with the nonrelocating parent and the child through visitation arrangements; iv) The child's preference, if the child is of sufficient maturity; v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent; vi) Whether the relocation will enhance the child's quality of life and the parent seeking relocation; vii) The reasons each parent has in requesting or opposing the relocation; and viii) Any other factors that affect the best interests of the child. Applicable standards are more restrictive for joint custody. Courts will be more protective of the parent not seeking relocation.

Fault-- Imprisonment

Imprisonment of one spouse for a specified period of time may be grounds for divorce.

Emancipation

In a few situations, a child *no longer lives with his parents and is self-supporting.* In such a case, the child may petition the court for a decree of emancipation. This means that the child is *no longer considered a minor in the eyes of the law and therefore has all the duties and obligations of adulthood. Parents no longer have a duty to support them,* and in fact, some jurisdictions require the children to support their parents in later years. Married minors are also considered to be emancipated in most states.

Guardian Ad Litem

In a highly contested child-custody case, legal counsel may be appointed for the child. This attorney's duty is to advocate for the child's preferences and act on her behalf. The attorney's fees are usually paid by the parents.

Deviations from child-support guidelines

In all jurisdictions, there is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. Deviations, however, are permitted as the circumstances warrant. If the court determines that the amount set forth under the guidelines should be deviated from, it must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award. Conversely, if the parent(s) earn a significant income far exceeding the needs of the child, the court may modify the award to provide solely for the child's needs, but generously define the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended

Parental Consent

In certain circumstances, such as for medical procedures, parental consent must be obtained. This policy holds regardless of the parents' marital status. A doctor who performs surgery on a minor child without parental consent is liable in tort. There are some exceptions to this general rule, such as in the case of an emergency, when time is of the essence. Some states may permit an exception to the general rule of consent when the child is older or deemed mature, or when the medical concern is related to public health, such as the treatment of a venereal disease. A parent has a right to raise her child as she sees fit. This right of parents extends to decisions relating to the religious upbringing of a child.

Modification of Mainenance

In general, spousal support may be modified, even when it has been deemed permanent. The party seeking modification typically has the burden of establishing a significant change in circumstances in the needs of the dependent spouse or financial abilities of the obligor that warrant the modification. As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments. 1. Death 2. Remarriage: most jurisdictions, annulment of subsequent marriage does not revive maintenance. 3. Cohabitation: may be modified if need for support decreases, not terminated b/c new cohabitant does not have legal duty to support spouse. 4. Retirement: some jurisdictions hold that parties should have addressed during divorce proceedings, others say dependent spouse cannot expect to have same level of support as before.

Child Support-- Medical Insurance

In most jurisdictions, the cost of providing medical insurance for the child is included in the child-support award, if either of the parents has access to insurance. If there is no insurance available, then the court may include provisions for the procurement and payment of insurance after consideration of the medical needs of the child, the cost of the coverage, and the availability of a plan to meet the child's needs. Any premiums associated with the medical coverage shall be subtracted from the net income of the parent who is responsible for the payment.

Voluntary Termination of a Natural Parent's Rights-- Consent of the prospective adoptee

In most jurisdictions, the prospective adoptee must consent to his adoption if he is over 14 years of age; some jurisdictions lower the age to 12.

Marital Property

In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Some states subject all property owned by either spouse to equitable distribution (i.e., the "hotchpot" approach). The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in nonmarital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital, and not subject to equitable distribution, then the burden is placed on that party to prove the assertion.

Post-separation property

In most states, property acquired by one spouse until a divorce is granted can be marital property. Some states treat property acquired by a spouse after permanently separating from the other spouse as separate property. Still other states draw the line between marital and separate property on the date that the divorce action is filed.

Third Parties Visitation

In some situations, third parties, such as grandparents, stepparents, or gay or lesbian nonbiological co-parents, may seek parenting time. Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents, but it is *typically limited to those cases in which they have acted in loco parentis* with the child prior to the divorce. Absent such a relationship, there are no protected rights of a stepparent or nonbiological co-parent to have ongoing contact with the child(ren) after divorce or death of the natural parent.

Incest

Incest is marriage or sexual relations between people related within the prohibited degree of kinship. All states restrict marriages by consanguinity (blood relationships) and nearly half bar marriages between first cousins. Typically, most consanguinity statutes also prohibit marriages between relatives of half blood, and many prohibit it when the relationship is by adoption.

Fault-- Indignity

Indignity grounds arise when one spouse exhibits negative behavior toward the other that renders that spouse's condition intolerable and life burdensome. Indignity can include: vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, or violence. While it is still available in some states, indignity is no longer recognized in the majority of states.

Fault Defense-- Insanity

Insanity is a valid defense when one spouse does not know the difference between right and wrong or lacks the ability to understand that an act is wrongful.

Fault-- Institutionalization

Institutionalization is grounds for divorce if a spouse's insanity or serious mental condition results in her being confined to a mental institution for a specified period of time prior to the commencement of the divorce, and there is *no reasonable prospect of discharge or rehabilitation.*

Joint Custody

Joint custody generally requires that the parents are both willing and able to cooperate with respect to the wellbeing of the child. Usually, joint custody is not imposed over the objections of one parent, but, even when it is, the arrangement must meet the best-interests-of-the-child standard. Under a typical joint legal custody arrangement, *neither parent has a superior right to make major decisions;* instead, joint custody arrangements typically spell out a procedure for resolving conflicts. Joint legal custody is the outcome in the majority of cases. In fact, many jurisdictions have a statutory presumption in its favor. Joint physical custody does not necessarily require a 50-50 time-sharing arrangement. It encompasses any situation in which the child maintains a residence at the home of each parent and spends a significant amount of time with each parent.

Accumulated sick and vacation days

Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held the following: (1) accrued vacation and sick days are marital property subject to division at the time of dissolution; (2) accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and (3) accrued vacation and sick days are not marital property. Presby v. Presby, 2004 Ohio 3050 (Ohio Ct. App. 2004) (accumulated days that can be cashed out are considered marital property to be distributed at the time of dissolution); Ryan v. Ryan, 261 N.J. Super 689 (1992) (when payment for the unused accumulated days was received at separation, it constituted marital property if the majority of the days were accrued during the marriage).

Personal-injury claim proceeds

Jurisdictions differ on the treatment of proceeds from personal-injury claims and worker's compensation claims. There are two basic approaches: 1) Marital property In some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property—even if the claim is paid after the final separation. 2) Separate and marital allocation Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, suffering, disability, and loss are considered separate to the injured spouse. Consortium losses are considered separate property of the non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property.

Common-Law Marriages-- Intent

Jurisdictions vary on the proof necessary to establish the requisite elements for a common-law marriage. The parties must produce evidence that they intended to enter into the marriage, and this must be evidenced by *words in the present tense* made for the purpose of establishing a valid legal marital relationship. Words in the *future tense* that indicate the parties agree to get married at a later date are *not valid* to show intent. In the event that the parties are unable to show evidence of their intent to marry in present-tense words, the court may look to cohabitation or reputation to determine if the couple holds or held themselves out as married. The courts, however, have consistently held that cohabitation alone does not support a common-law marriage.

Equitable Distribution of Property in an Annulment

Just because a marriage is terminated by annulment rather than divorce does not mean that parties to annulled marriages have no rights. The party seeking the annulment still has a right to request an equitable distribution of property and, in some cases, spousal support. That party may also seek child support, custody, attorney's fees, and other costs related to the dissolution of the marriage. Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage.

Fault Defense-- Justification

Justification grounds may be established if one party left the home because of the other's misconduct. This is a defense to desertion.

Legal Custody

Legal custody is the right of a parent to make major decisions, as contrasted to everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.

Third-Party Rights to Custody

Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms "parent by estoppel" and "de facto parent" to get around the presumption. A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent's constitutional rights.

Limited Divorce and Separate Maintenance

Limited divorce, known in some states as a "divorce from bed and board," is recognized in most jurisdictions, but rarely used. When used, it is often for religious or medical reasons, as the parties do not sever the marital tie and are still considered legally married. They are, however, permitted to live apart. As with an absolute divorce, the *court will determine support and property division.* A separate maintenance action provides for a decree of support for a party, typically the wife and any minor children. It does not, however, authorize the parties to live apart. As with a limited divorce, the parties are *still considered married and cannot remarry.*

Limited duration Maintenance

Limited-duration alimony is established for a limited period of time. Unlike rehabilitative or reimbursement alimony, its purpose is not to facilitate an increased earning capacity of the dependent spouse or to compensate a spouse who has sacrificed. Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate), but there is still an economic need for support.

Marriage

Marriage is a *civil contract.* Similar to most contracts, marriage involves parties who are legally capable of consent, the exchange of consideration in the form of *mutual promises,* and the imposition of rights and obligations. Conversely, unlike most contracts, a marriage contract *cannot be modified or terminated without state intervention.* Maynard v. Hill, 125 U.S. 190 (1888). A marriage is valid if there is a license and a solemnization of the marriage (i.e., a ceremony). There are typically two types of marriage recognized by law: ceremonial (or statutory) marriage and common-law marriage.

Mediation

Mediation is a frequently used, less expensive, and often more effective manner to resolve separation disputes. A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights. Discussions during the mediation process and the written agreement derived from the discussions remain confidential, unless both parties agree to its disclosure. The court may approve the agreement and make it part of the final judgment. A mediator must conduct the mediation process in an impartial manner and disclose all and potential grounds of bias and conflicts of interest. A mediator must facilitate the participants' understanding of what mediation is. A mediator should recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly. Additionally, a mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

Child's Preference

Most courts will consider the *wishes of the child* if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.

Calculating Support a. Income-shares model

Most jurisdictions have adopted an income-shares model, which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.

Modification of Child Support

Most jurisdictions permit an award of child support to be modified. Although the statutory language varies, in general, modifications are permissible when there is a *substantial change in circumstances* regarding the child's needs or the parents' financial situation. The burden to substantiate the change in circumstances is on the parent requesting the modification. Some jurisdictions, however, permit a modification to a support order after a certain passage of time, such as for a cost-of-living increase. Typically, a modification award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modified. 42 U.S.C. § 666(a)(9) (prohibiting retroactive modification of child support). EXAM NOTE: Be aware of fact patterns in which the obligor spouse voluntarily quits a job. The *amount of child support may not be reduced simply because of the voluntary reduction in the obligor's pay.* If this situation arises, discuss the obligor's *earning capacity,* which is the amount that the person could realistically earn under the circumstances in consideration of the person's age, mental health, and physical condition.

Voidable Marriage-- Lack of intent

Most jurisdictions permit annulment when the parties participated in the marriage ceremony as an act of jest or hilarity and do not have the requisite intention to be bound by the act. Most courts annulling marriages in such circumstances have determined that the interest of the public would not be served by requiring the parties to remain married. This also includes cases in which the parties, in advance, agree to only some, but not all, of the conventional aspects of marriage, including sexual and emotional fidelity, economic interdependence, and commitment to the relationship. Often seen in cases with immigration issues, this type of marriage is commonly referred to as a "limited purpose" marriage.

Putative Marriage Doctrine

Most jurisdictions, either by statute or common law, have adopted a version of the putative marriage doctrine. The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state's divorce provisions even if the marriage is later found void due to an impediment. Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine, however, is normally invoked to provide *equitable relief,* including maintenance and property distribution.

Solemnization

Most states do not prescribe a particular form of the marriage ceremony, but many require that any ceremony solemnizing the marriage be performed in front of at least *two witnesses.* Some states even allow for a proxy to stand in for one of the parties who cannot attend the ceremony as long as the party provides written authorization for the third person to act as a proxy. Additionally, in most jurisdictions, a judge, political official, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and filed with the appropriate government office.

Equitable Distribution

Most states follow a system of equitable distribution. The objective of the equitable-distribution system is to order a *fair distribution* of all marital property, taking into consideration all of the circumstances between the parties. Unlike a community-property division, an equitable distribution is not necessarily an equal division of marital assets. There are, however, a few states that presume that an equitable division is an equal division, but permit deviation when necessary to achieve a more equitable result.

Recognition of Common-Law Marriages

Most states have abolished common-law marriages. Even though most states do not permit common-law marriages, almost all states *recognize common-law marriages entered into in a jurisdiction that does recognize* such relationships. Under conflict-of-law principles, a state need not recognize a marriage valid under the law of the place in which it was contracted if it *violates a strong public policy* of the state asked to recognize the marriage. Some jurisdictions recognize a common-law marriage when the parties had only a short, transitory visit to the permitting state, while other jurisdictions require that the parties be domiciled in the permitting state. Some jurisdictions consider the inquiry on an individual basis, weighing the harm to the claimant seeking recognition and the state's policy against such marriage. EXAM NOTE: On the bar exam, assume that the jurisdiction has abolished common-law marriage unless the question states otherwise.

Good-faith belief in the death of a spouse

Most states have adopted what is known as an "Enoch Arden" statute in bigamy cases. In those jurisdictions, there is a defense to bigamy if the parties had a good-faith belief that the previous spouse was dead. The courts differ in the treatment of such marriages. Some jurisdictions require a divorce proceeding from the original spouse once the existence of the spouse is determined as a prerequisite to validating the later marriage.

Voidable Marriage-- Fraud, misrepresentation, duress, coercion, or force

Most states permit an annulment when the marriage was the result of a *fraud that goes to the essence of a marriage.* To annul a marriage based on fraud, it must be based on present—not future—facts. Most courts *require that the parties immediately cease living together* once the fraud is discovered. Concealment of defective morals, character, habits, fortune, and temper are typically insufficient grounds for an annulment. Jurisdictions have differed, however, on claims of misrepresentation when a woman has falsely claimed to be pregnant by a man, or on claims relating to a party's religious beliefs.

Exceptions to marital property

Most states treat certain property as separate, rather than marital, property. Among the types of property treated as separate property are the following: i) Property *acquired before the marriage* or property acquired in exchange for property acquired before the marriage; ii) Property *excluded by the parties' valid agreement* entered into before, during, or after the marriage; iii) Property *acquired by gift or inheritance,* or property acquired in exchange for such property, except when it is between spouses; iv) Property a party has *sold, granted, conveyed*, or otherwise disposed of in good faith and for value before the date of final separation; v) Property to the extent that it has been *mortgaged or otherwise encumbered in good faith* for value before the date of final separation; and vi) Any *award or settlement payment received* for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.

Domestic Violence and Custody

Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody. Some jurisdictions have created *rebuttable presumptions in favor of the nonabusive spouse.*

Tax Consequences of Child Support

Neither the payor nor the recipient of the support may deduct the support from or include it in their income.

Nonmarital Children

Nonmarital children historically were not entitled to child support or to inherit from their father's estate. Courts now use an intermediate scrutiny standard to analyze the constitutionality of government action, focusing on the purpose behind the distinction between marital and nonmarital children. As a result, child support, government benefits, and wrongful-death claims may no longer be denied to nonmarital children, and nonmarital children may inherit from their father's estate so long as paternity was proved prior to the father's death. Nonmarital children may change their status and become marital children under certain circumstances, including when: i) The parents marry after the birth of the child; ii) The father consents to being named on the birth certificate; iii) The father holds himself out or in some way acknowledges that he is the child's father; or iv) A judicial decree establishes paternity.

Custody Modification

Once a custody order has been entered, absent relocation, a state retains subject-matter jurisdiction to modify the order while the child remains a minor. The majority of jurisdictions apply a change-in-circumstances standard, requiring some *substantial and unforeseen change* since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose behind requiring time barriers or a substantial change in circumstances is to promote stability in the child's life. The violation of a child visitation order does not automatically change who is designated as the custodial parent; it is a factor to consider in modification of an order. The failure to pay child support is not a basis to withhold visitation or modify an existing child-custody order.

Legal Effects of Adoption

Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents' estate). As the adoptive parents stand in the shoes of the adoptee's biological parents, the vast majority of jurisdictions will not permit visitation between the adoptee and her biological parents. A few states do authorize visitation between an adoptee and a nonparent, typically a stepparent, but only when there is a substantial relationship between the child and nonparent and the visitation is in the child's best interests. Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, such as the discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider the length of the relationship, the child's needs, and the parent's motives.

Involuntary Termination of a Natural Parent's Rights

Only a court can involuntarily terminate one's constitutional right to parent a child. The involuntary termination of parental rights typically occurs as part of an abuse, neglect, or dependency case after the state has intervened and made attempts to rectify the situation. Also, if consent is unreasonably withheld, then the court will waive such consent. 1) Requirements Each jurisdiction provides the statutory grounds and requirements for termination of parental rights. They can include abandonment, incapacity, abuse of a sibling, termination of parental rights over a sibling, and abuse and neglect of the child over a period of time. Additionally, under the Adoption and Safe Families Act, a state can move for termination of parental rights when the child has been *placed outside of the home and not with a relative for 15 of the past 22 months,* provided certain reunification attempts have been provided by the state. Because the termination of parental rights has constitutional implications, it is considered an *extreme remedy.* The standard for determining whether termination is appropriate is *clear and convincing evidence.* 2) Adoption Some jurisdictions also apply the traditional law of adoption, which permits an adoption upon the finding that a parent has abandoned the parent-child relationship. Jurisdictions vary on the use of a subjective versus objective test. When an objective standard is applied, the key is *whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship* (e.g., visitation and support). When a subjective standard is applied, the key is whether the parent subjectively intended to abandon the parent-child relationship; objective evidence of a parental loss of interest in the relationship is insufficient.

Percentage-of-income model

Other jurisdictions have adopted a percentage-of-income model, which determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent's net income, determined by the number of children supported. Certain expenditures, such as taxes or necessary medical expenditures, may be excluded when calculating net income.

Permanent Maintenance

Permanent alimony is an award for the remainder of the dependent spouse's life, unless certain circumstances occur. The purpose behind permanent alimony is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during the marriage. It is primarily used in cases when one spouse remained out of the workforce for homemaking or child-rearing purposes. Permanent alimony is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of "long-term," it typically refers to a marriage of 15 years or more.

Physical Custody

Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.

Marital Agreements-- Full Disclosure

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that each party exercised a meaningful choice when they agreed to the terms of the contract. *Absent full disclosure, a court will generally refuse to enforce the agreement.*

Voluntary Termination of a Natural Parent's Rights-- Withdrawal of consent

Prior to a final decree of adoption, the parents' consent to adoption may be withdrawn with court approval. After the final decree is entered, however, no withdrawal of consent is allowed.

Fault Defense-- Recrimination and unclean hands

Recrimination occurs when both spouses have committed a marital wrongdoing of like conduct. In other words, because both parties were guilty of the same offense (e.g., adultery) that would justify a divorce, a court could not grant the request. A similar defense is "unclean hands," when the plaintiff's own behavior or acts are questionable. Both of these defenses are most commonly seen in desertion, adultery, or cruelty cases.

Rehabilitative Maintenance

Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse. For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period.

Retirement or pension benefit

Retirement or pension benefits acquired during the marriage are considered marital property and are subject to equitable distribution. This includes military pensions.

Same-sex marriage

Same-sex couples may now marry in all states. In addition, all states and the federal government must recognize a same-sex marriage legally entered into in another state.

Separation Agreement

Separation agreements are made between spouses who are planning for divorce. These agreements can define property division, spousal support, child support, custody, and visitation. The court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud. Provisions related to child support and custody, on the other hand, are modifiable by the court if the initial terms are not in the best interest of the child. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure. When no merger occurs, enforcement is based on contract law rather than judgment enforcement.

Jurisdiction for Modification of Child Support

Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdiction rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution. As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi, but all parties moved to Minnesota and the order is then registered in Minnesota). It is important to note, however, that if an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state.

Social Security

Social Security benefits are not subject to equitable distribution. Fleming v. Nestor, 363 U.S. 603 (1960) (applying accrued property rights to the Social Security system would deprive it of the flexibility in adjustment that it demands).

Premarital medical testing

Some states also require a form of premarital medical testing. The requirements range from filing a health certificate or certifying the absence of a venereal disease to the testing of blood for certain diseases, including measles, tuberculosis, and sickle cell anemia. While a state can mandate the testing, it *cannot condition the issuance of the license on the results of the test.* See T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993) (invalidating a Utah statute prohibiting marriage of an HIV inflicted individual as unconstitutional under the Americans with Disabilities Act).

Custody Modification-- Cohabitation

Some states permit a hearing to consider a change in custody when the custodial parent is living with a nonmarital partner. However, a change in custody is generally not granted unless there is a showing that the cohabitation is having an adverse effect on the child.

Fault-- Habitual drunkenness

Some states permit habitual drunkenness as a ground for divorce if it is the frequent habit of getting drunk that causes impairment in the marital relationship. There is no requirement that the defendant be an alcoholic or that she be constantly under the influence of alcohol, but *more than an occasional level* of intoxication is required. A possible defense to the grounds of habitual drunkenness may be assumption of the risk.

UPA Gestational (Surrogacy) Agreement

Sometimes used interchangeably with the term "surrogacy," a gestational agreement is one in which a woman, known as the gestational mother or surrogate, agrees to carry a pregnancy, either through artificial insemination or by surgical implantation of a fertilized embryo, as a substitute for intended parents who cannot conceive. The intended parents are the individual or individuals who provide the egg or sperm of one or both of them used to implant into the surrogate. The intended parents agree to be the parents of the resulting child, with all the rights and obligations of parenthood. This agreement involves the gestational mother, and her husband if she is married, giving up all parental rights and obligations to the child being conceived. All parties involved must petition the court for approval of the agreement. The court must have jurisdiction, which continues until the resulting child is six months old, and the appropriate government agency must perform a home study of the intended parents to determine their fitness. All parties must have entered the agreement voluntarily and made provisions for the proper medical care associated with the surrogate agreement. The agreement may not limit the right of the gestational mother to make healthcare decisions concerning herself or the embryo she is carrying. Consideration to the gestational mother, if any has been promised, must be reasonable. The agreement may be terminated for cause by any of the parties, including the court, prior to the gestational mother becoming pregnant. An agreement that is not approved by the court is not enforceable. Once the court approves the agreement, a child born to the surrogate mother within 300 days after the assisted reproduction is presumed to be the product of the assisted reproduction. A subsequent marriage of the gestational mother has no effect on the validity of the agreement. The intended parents must file a notice of the child's birth for the court to declare them to be the legal parents. It is important to note that in many of the states that have adopted legislation regarding assisted reproduction, gestational agreements are not given effect.

Spousal Maintenance

Spousal support (also called maintenance or alimony) is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if *one spouse cannot provide for his own needs with employment.* Alimony payments can be made for a definite or indefinite period of time. Unlike property settlements, *alimony obligations cannot be discharged in bankruptcy.*

Stock options

Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage.

Melson formula

The Melson formula is similar to the income-shares model, but it takes into account six specific considerations, such as the minimum amount that each supporting parent must retain, the number of the supporting parent's dependents, and a Standard of Living Adjustment (SOLA).

Parental Kidnapping Prevention Act (PKPA)

The PKPA, despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any conflicting state law. The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises. If a jurisdiction fails to follow the PKPA's rules regarding jurisdiction, which are substantially similar to the UCCJEA rules, the order of the noncompliant jurisdiction is not entitled to full faith and credit. The International Parental Kidnapping Crime Act (IPKCA) prohibits a parent from taking a child outside the United States and obstructing the other parent's physical custody of the child. The Hague Convention requires the return of a child wrongfully taken or retained in a foreign country, and it allows the custodial parent to file suit. The exception to this is if bringing the child back into the country would expose the child to grave physical or psychological harm.

Law enforcement of custody

The UCCJEA allows any law-enforcement official to take any lawful action to enforce a custody order or obtain the return of a child (i) if the official believes that the person holding the child has violated a criminal statute, or (ii) if requested to do so by a court of law.

Expedited enforcement of a child-custody determination

The UCCJEA uses a process similar to habeas corpus. After a petition is filed, the respondent must appear in person at a hearing held on the *first judicial day after service* of the order or, if that date is impossible, on the first judicial day possible. The petitioner will be awarded immediate physical possession of the child unless: i) The custody or visitation order was not registered; and a) The issuing court did not have jurisdiction; b) The order had been stayed or vacated; or c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or ii) The order was registered and confirmed, but the order was stayed, vacated, or modified.

Adoption Alternatives Under the Uniform Parentage Act (UPA)-- Assisted Reproduction

The UPA defines "assisted reproduction" as implanting an embryo or fertilizing a woman's egg with a man's sperm without sexual intercourse. UPA § 102. This may include in vitro fertilization, when fertilization occurs outside the woman's body, and the fertilized egg is then implanted into the woman's uterus. The donor is the man or woman who produces the sperm or egg used in assisted reproduction, but who is not considered the parent of the prospective child. Maternity is determined by the woman who gives birth to the child, unless a gestational agreement states otherwise. UPA § 201. Likewise, the husband of the woman who is determined to be the mother of the child is the child's father, unless the husband pursues an action to declare that he did not consent to the assisted reproduction. This action must commence within two years after the husband learns of the birth of the child. UPA §705. If either the egg donor or sperm donor dies before implantation of the embryo, or before conception, that donor is not a parent of the resulting child, unless a writing by the deceased party states otherwise.

Uniform Deployed Parents Custody and Visitation Act

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA), enacted in 2012, integrates with the UCCJEA but applies specifically to parents who are also service members. Among other things, the UDPCVA provides that when imminent deployment is not an issue, courts cannot use a parent's deployment as a negative factor in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent's consent.

Spousal Maintenance-- Standard of living

The couple's standard of living during the marriage is considered.

Warrant for child custody

The court may issue a warrant, upon a petitioner's request, for the petitioner to take physical possession of a child if it finds that the child is likely to suffer serious physical injury or be removed from the state.

Marital Agreements-- Fair and Reasonable

The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure. To determine if a premarital contract's terms are reasonable, the courts consider the parties' wealth, age, and health. An agreement obtained by fraud, duress, or undue influence may be set aside as unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, then the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse. Most courts evaluate fairness at the time of execution of the contract, and a minority of jurisdictions will evaluate it at both the time of execution and at the time of enforcement.

Spousal Maintenance-- Length of the marriage

The length of the marriage is considered in determining spousal support.

Relief Granted for Domestic Violence

The major relief granted under most of the statutes is an injunctive order prohibiting the defendant's further abuse of and contact with the victim. It can, and typically does, include exclusive possession of the residence for the period of time, child-custody and parenting time, and support. In most jurisdictions, the application for a protective order is a two-step process. The applicant must obtain an ex parte order with limited injunctive relief, followed by a hearing, after notice has been given to the defendant, for a permanent order. The duration of the order depends on the jurisdictional statute and ranges for a period of one year to an indefinite length of time. The penalties for violating a protective order are criminal in nature and range from a fine to imprisonment. EXAM NOTE: In bar exam questions, a typical example of the relief obtained by a protective order is that the defendant not abuse the petitioner and have no contact with her.

Professional licenses or degrees

The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. Simmons v. Simmons, 708 A.2d 949 (Conn. 1998); but cf. Elkus v. Elkus, 572 N.Y.S.2d 901 (1 Dep't 1991) (a professional degree is an asset subject to equitable distribution). Most courts look at advanced degrees or licenses as an acquisition of knowledge as opposed to a property interest. A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony. A court may also use its equity power to award a spouse *reimbursement* for his actual contribution toward the other spouse's educational and related living expenses. This is often referred to as the cost-value approach.

Paternity

The obligation of child support falls on the child's parents. Questions may arise, however, as to the identity of the child's father. Once his identity is established, the child's father has rights to custody and visitation, but he is also under a duty to support the child. Paternity actions are confidential and not available to the public. a. Blood test When there is a question as to who is the father of a child, a court may order blood tests of the child and the possible fathers to determine paternity. If a defendant involved in a paternity matter is indigent, he is entitled to blood testing at the state's expense to establish or disprove paternity. If the test disproves paternity, then the case seeking child support must be dismissed. b. Other evidence In addition to the blood test, evidence such as (i) prior statements regarding paternity by deceased family members, (ii) medical testimony on the probability or improbability of conception, (iii) the defendant's acknowledgment of paternity, and, in some states, (iv) the resemblance of the child to the defendant is admissible to prove paternity.

Collateral Attack on Jurisdiction

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state's domicile immediately after the entry of the divorce. If the court had both personal and subject-matter jurisdiction over the parties, and the attacking party litigated or had the opportunity to litigate, then that person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although persons other than the party may collaterally attack a divorce if standing exists (i.e., a child), they will be precluded from attacking it if the third person is in privity with any party who would have been estopped from attacking the judgment themselves.

Marital Agreements-- Voluntary

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time-pressure, the parties' previous business experience, and the opportunity to be represented by independent counsel. A party's insistence on the agreement as a condition to marriage is not considered duress. ***EXAM NOTE: Be sure to discuss whether procedural fairness exists if one party was not independently represented. Address the question of voluntariness by discussing whether the individual was both informed of her right to counsel and given the opportunity to consult counsel.***

Spousal Maintenance-- Age and health

The parties' age and health, both physical and mental, is considered in determining support.

Tax Consequences of Spousal Maintenance

The payor of spousal-support payments may deduct those payments from income, while the recipient must include the support payments as income, unless otherwise stated in the divorce decree or separation agreement.

Property-Settlement Agreement

The purpose of a property-settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued.

Reimbursement Maintenance

The purpose of reimbursement alimony is to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. Often, this type of alimony is awarded only in cases in which one spouse did not work in order to secure an advanced degree or professional license. It is rarely used, and unlike the other forms of alimony, it is based on past contributions rather than present or future needs. Instead of reimbursement alimony, some jurisdictions treat this type of payment as property division.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. Almost all states have enacted the UCCJEA. Adjudication under the UCCJEA requires that the court possess subject-matter jurisdiction.

Goodwill

The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in some jurisdictions.

Best-Interests-of-the-Child Standard

The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. There is no longer a presumption for custody in favor of the mother. Many courts consider who the primary caretaker of the child was during the marriage, separation, and prior to the divorce, as factors in determining who should have custody. The primary-caretaker doctrine not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past. The primary-caretaker factor is based on a child's need for a *stable and continuous relationship with the primary parent.* EXAM NOTE: For any fact pattern about a proceeding involving children, be sure to discuss the best-interests-of-the-child standard in determining custody.

Marital presumption

There is a marital presumption that a child born to a married woman is the child of that woman and her husband. Most states apply the presumption even when the wife is artificially inseminated, provided that the husband gave his consent to the procedure, and the procedure is performed by a physician. In some states, a wife is estopped from denying her husband's paternity of her child, but approximately half of the states permit rebuttal of the marital presumption if the husband is impotent, sterile, or lacked access to his wife. When rebuttal is permitted, some states permit a court to exclude evidence rebutting the presumption if rebuttal is contrary to the child's best interests.

Fault-- Cruelty

To prevail on the grounds of cruelty or inhumane treatment, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff's physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically *cannot be based on one isolated incident.* The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

Heartbalm Actions

Traditionally, if a marriage failed to take place, the jilted party was permitted to file a heartbalm action, which is a civil suit for money damages based on the damage to the jilted party's reputation when the engagement was broken. Abolished by the majority of states, only nine jurisdictions currently recognize heartbalm actions, which include actions for breach of promise to marry, seduction, alienation of affection, criminal conversation, and jactitation of marriage (falsely holding oneself out as married). EXAM NOTE: On the bar exam, assume the jurisdiction has abolished heartbalm actions, unless the question states otherwise.

Divisible Divorce Doctrine

Under the doctrine of divisible divorce, also known as ex parte divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. If a court makes such a determination, the defendant can challenge the court's orders due to the court's lack of in personam jurisdiction over the defendant.

Scope of Domestic Violence Statute

Virtually every jurisdiction requires that the perpetrator of the violence be in a relationship with the victim or be a household or family member. Jurisdictions differ, however, on the scope of coverage. Most states include spouses, former spouses, children, unmarried parents of a common child, and household or family members. Some jurisdictions also cover dating relationships. See, e.g., N.J.S.A. 2C:25-19d. These statutes tend to focus on a continuum of behavior, but depending on the level of violence, a single episode may qualify for court protection.

Finalizing Divorce

When a divorce is initially granted, many courts will not finalize the divorce until a specified period of time has elapsed. This is known as an "interlocutory" decree. During this interlocutory period, neither spouse can remarry.

Annulment Defenses

When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment merely makes the marriage voidable, but it will not necessarily prevent the annulment. In annulling voidable marriages, courts recognize the equitable defenses of unclean hands, laches, and estoppel.

Property Division Between Unmarried Cohabitants

When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Personal Jurisdiction Over an Out-of-State Parent

With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state. The ways in which a court can obtain personal jurisdiction are: i) Personal service on the defendant parent; ii) Consent of the defendant parent, such as by entering an appearance in the action; iii) Current residency with the child in the state; iv) Past residency in the state and the provision of prenatal expenses or support for the child; v) Residency of the child in the state as a result of acts or directives of the parent defendant; vi) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; vii) The parent defendant asserted parentage in the putative father registry maintained by the state; or viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction. It is important to note that the U.S. Supreme Court has not yet spoken on the constitutionality of the UIFSA's long-arm provisions. Several states, however, have upheld the provision as meeting the requisite due-process requirements. In so holding, state courts have relied on the voluntary nature of the sexual act or conduct; that conception is a logical result of that conduct; and the state's strong interest in protecting its minor children in all regards, including financially. As the obligation to support a child extends to at least the age of majority, there is no time limit on the assertion of jurisdiction under this statute.

Voluntary Termination of a Natural Parent's Rights-- Consent of Unwed Fathers

a) Consent by failure to register Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father's failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. Termination in this fashion typically applies only to cases in which the father and child *never developed a relationship.* A situation in which the child is a newborn gives the unwed father a constitutional right to have an opportunity to develop a quality relationship with the child. b) Limitations on the right to object The right of an unwed father to object to an adoption may be *denied if the father does not demonstrate a commitment to the responsibilities of parenthood,* but it cannot be denied if such a commitment has been made.