Family Law

What are the capacity requirements which people must meet to be allowed to marry?

The parties must be: 1. Of opposite sex; 2. Married only to one spouse at a time; 3. Not be related; 4. Be above the statutorily-defined age.

What are the classifications of permissible state restrictions on who may marry?

There are two classes of permissible restrictions on who may marry: 1. Capacity to marry; 2. State of mind.

What is the UMDA approach to no-fault divorce?

UMDA permits divorce if the marriage is "irretrievably broken," which may be established either by -A six-month separation, or -A showing of "serious marital discord adversely affecting the attitude of one or both of the parties to the marriage.

Do all states regulate the degrees of kinship within which persons may marry?

Yes. All states regulate the degrees of kinship within which persons may marry.

Has a court ever imposed child support on an ex-partner in a gay relationship in which the partners were parents to a child? Explain.

Yes. Elisa B. v. Superior Court. (Cal. 2005)

What is the modern prevailign standard in custody decisionmaking.

"Best interests of the child."

At common law, what were some of the tort causes of action which could be brought against a person who interfered with the spousal relationship?

-Alienation of affections -Criminal conversation -Loss of consortium

What were the justifications at common law for finding spouses to not be competent as witnesses?

-Legal fiction of marital unity -Possibility of bias -Judicial desire to foster harmony and protect the sanctity of marriage.

What must a plaintiff show to prevail in a tort action for criminal conversation?

-Proof of a valid marriage -That the defendant had sexual intercourse with his spouse.

What are the two marital property regimes?

1. Common law 2. Community property

What are the three models on which state guidelines on the award of child support are based? Which is the most popular?

1. Income shares model (most popular) 2. Percentage of income model; 3. Melson formula

What are three things which state bar committees have ruled a lawyer/mediator must do to avoid conflicts of interest?

1. Inform the parties that the mediator represents neither of them; 2. Refrain from representing either party if the mediation proves unfruitful; 3. Advise the parties to seek independent legal counsel.

When filing a fault-based divorce on the ground of adultery, what must the plaintiff show to prove adultery

1. Opportunity to commit the offense, and 2. Disposition to commit it.

What are the four ways in which legal policy has developed in efforts to reduce wife beating (intimate partner violence).

1. Rules liberalizing the admission of battered woman's syndrome evidence; 2. Remedies (civil and criminal) against the abuser; 3. Remedies against law enforcement personnel; 4. Federal reforms.

What are the two components of jurisdiction in divorce law

1. Subject matter jurisdiction. This refers to: -durational residency, and/or -domiciliary requirements. 2. Personal jurisdiction. Rules pertaining to personal jurisdiction over the defendant in the divorce context, which differ from personal jurisdiction rules in other civil contexts.

What are two limitations to agreements by nonmarital partners in districts that require that such agreements be express?

1. The consideration may not be illicit. 2. The parties must actually have cohabited (though courts differ as to when part-time cohabitation suffices).

What gives a court subject matter jurisdiction to dissolve a marriage?

1. The petitioner must be domiciled in the forum state; 2. The court has in rem jurisdiction over the marital status.

1. What is the name of the rule that states that a marriage that is valid when performed is valid in any of the 50 states? 2. What is the exception to this rule? 3. Give an example of where the exception failed as a defense to a restriction to marriage, and the reason for why the exception failed.

1. This is the "lex loci" rule, which holds that a marriage valid where performed is valid everywhere. 2. The exception is that a jurisdiction need not recognize a marriage if it is contrary to public policy. 3. In Loving v. Virginia, the state of Virginia argued that it did not have to recognize the Lovings' marriage because of the public policy of the alleged benefits of racial segregation. The Supreme court held that a racially motivated public policy is unconstitutional.

What are some of the public policy rationales for supporting recognition of foreign decrees?

1. Vindication of parties' expectations; 2. Achievement of finality.

What proportion of families today fit the traditional nuclear model?

About 1 in 4.

About how many states recognize common law marriage?

About a dozen.

In an alienation of affections case, what are some factors that a court may take into account in determining the award?

Court may take into account the quality and duration of the relationship. Punitive damages may be awarded if a defendant's conduct was malicious and the defendant has the ability to pay.

What approach does the 1912 Uniform Marriage Evasion Act take regarding which laws govern validity of a marriage when the laws of the place of residence and place of celebration conflict?

Declares void all marriages entered into by parties who married in another state for the purpose of evading their home state's restrictions on marriage. The Act was not widely adopted and has been withdrawn, though some states have similar statutes.

Define "extended family."

Family based on blood relationships that extend beyond the parent-child relationship characteristic of the traditional nuclear family.

Can a person still file for divorce based on fault?

In some jurisdictions, divorce based on grounds of fault is still available.

What is "collusion" in the divorce context?

It's where spouses agree or fabricate evidence that one partner has committed a marital offense, in order to provide grounds for divorce in a fault-based divorce jurisdiction.

What are the typical procedural requirements that states generally subject marriage to? What is the result of failure to comply with these procedural formalities?

Licensure, Physical examination and blood tests, Solemnization, Waiting period, Recordation (registration in the public record). Failure to comply with these procedural formalities will not invalidate a marriage. This rule operates unless the jurisdiction has a statute expressly making a marriage invalid without a license.

Cases holding that there is a constitutional right to marry.

Loving v. Virginia; Zablocki v. Redhail.

What is the majority rule concerning same-sex marriage?

Most jurisdictions have explicit statutory definitions of marriage as "the union of a man and a woman."

Do state assisted-suicide bans which allow termination of treatment, but which prohibit rendering assistance in hastening death, violate equal protection? What case?

No. Vacco v. Quill (U.S. 1997)

Is there a constitutionally-protected right to commit suicide? What case?

No. Washington v. Glucksberg (U.S. 1997), holding that state bans on assisted suicide do not violate equal protection.

When is strict scrutiny based on equal protection triggered?

A violation of equal protection occurs when the state or federal government treats similar groups of persons differently.

How did ye olde common law arguably encourage wife beating?

According to Blackstone, at common law, a husband had the right of "moderate chastisement" of his wife. Wives were barred by interspousal immunity doctrine from suing her husband for intentional torts, such as assault and battery.

How has the law regarding cruelty as an fault-based ground for divorce changed in the past few decades?

Actual or threatened physical violence used to be a requirement. Today, we have cases like Muhammad v. Muhammad (Miss. 1993) in which the husband was found to have engaged in cruelty by demanding that his wife move with him to a cult-like Islamic commune. Courts have required that the mental cruelty be severe enough to pose a danger to plaintiff's well-being, in order to overcome judicial concern regarding fraudulent claims.

Carl and Evelyn are widowed retirees. Three days before their marriage, they enter into an antenuptial agreement whereby Evelyn waives all rights to inherit Carl's property. The agreement does not state the extent of Carl's assets ($1M). during his lifetime, Carl is secretive about his wealth and lives modestly. After Carl's death, Evelyn's guardian challenges the agreement. What result.

Agreement likely to be found invalid. Carl had the duty of full disclosure.

Define prenuptial agreement and give two synonyms for it.

Agreements between prospective spouses, made in contemplation of the marriage, which typically require a party to limit or relinquish certain rights that the party would have acquired by reason of the marriage.

Name a case in which a state supreme court found that gay people are not a suspect class.

Andersen v. King County (Wash. 2006).

If a defendant in a divorce action was not provided with notice of the action, and he later finds out that a divorce decree was issued, effectuating his divorce, what may he do?

Appeal for lack of jurisdiction.

Under what constitutional provisions have those denied marriage licenses for being gay challenged these restrictions?

Assertion of federal constitutional right to marry under Due Process Clause, Equal Protection Clause, right of association, right of free exercise of religion, and Ninth Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.").

How have communal families found success in challenging zoning ordinances that discriminate against their living together?

Base the challenges on state, rather than federal, constitutional law, such as state constitutional rights to privacy.

What is the jurisdictional issue that surfaces in the adjudication of the tort cause of action of alienation of affections?

Because some states continue to recognize the actions, while others do not, jurisdictional issues may arise when the alleged acts of sexual misconduct occur outside the forum state. Minimum contacts must be established. Depending on the court, minimum contacts may or may not be satisfied by telephone calls or e-mails to and from the forum state.

Why might an immigrant without papers find it tempting to fraudulently contract with a U.S. citizen in order to obtain preferential entry status?

Being married to a citizen exempts an alien from quota restrictions of the Immigration and Nationality Act of 2000.

By what method are most custody arrangements made?

By private agreements between teh divorcing parents.

What did the federal government do to reduce judicial discretion in the award of child support?

Child Support Amendments of 1984. Required states to have guidelines for the award of child support in place, or else risk losing a percentage of federal AFDC money. Guidelines would serve as a rebuttable presumption and require states to update their guidelines.

What is the standard of proof for annulment due to fraud?

Clear and Convincing Evidence.

What is a way in which cohabitants may bind themselves to mutually-recognized obligations, without marrying?

Cohabitants may enter into express contracts with one another.

Under what doctrine do U.S. and state courts recognize the decrees of foreign countries?

Comity doctrine

In cases of sexual abuse, what limitations may courts place upon visitation?

Courts may place conditions on visitation or even terminate visitation.

If a woman changes her name to her husband's name upon marriage can she resume her maiden name or adopt yet another name during the marriage?

Depends on the state. In many states, this is possible, so long as there is an absence of fraudulent intent.

What is uniquely American about our family law (i.e., not simply transplanted from England).

Ecclesiastical courts had exclusive jurisdiction over marraige until the mid-nineteenth century in Britain.

There is a different level of evidence required for one of the grounds for fault-based divorce; which ground, and what is the difference?

For all of the fault-based divorce grounds but adultery, corroboration is required. Because adultery occurs in private, circumstantial evidence is permitted for that ground.

What are the grounds for a voidable (versus void) marriage?

Fraud, duress and nonage.

Full disclosure is one of the requirements for validity of a premarital agreement. How detailed must disclosure be to be considered full disclosure? What are two ways of establishing full disclosure?

Full disclosure need not be detailed disclosure. 1. A spouse's independent knowledge of the other spouse's financial status can serve as a substitute for disclosure. 2. A presumption of full disclosure may arise from the presence of a disclosure clause in the premarital agreement.

Example of a gay marriage case in which the plaintiffs used Lawrence v. Texas.

Goodridge v. Department of Public Health.

John and Tyrone are an unmarried gay couple. They purchase a seven-bed four-bath home in a single-family residential zone for themselves and for the children of their prior marriages. City zoning ordinance restricts family members to those related by blood, marriage or adoption. When the city seeks to enjoin the defendants' violation of the zoning ordinance, the defendants argue that the ordinance interferes with their freedom of association. They contend that their household is the "functional equivalent" of a traditional family. What likely result in a state court?

If like the Missouri Court of Appeals in Ladue v. Horn, the Court would rely on Belle Terre in upholding the zoning ordinance as constitutional because it bears a rational relationship to a permissible governmental purpose of regulating land use for family needs. The permissible governmental purpose was prevention of erosion of values associated with traditional family life and preservation of the governmental interest in marriage and in the integrity of the biological family.

Distinction between common-law marriage and putative spouse doctrine?

In a common-law marriage, the parties are aware that they have not taken part in a marriage ceremony. Under the putative spouse doctrine, the parties have undergone a marriage ceremony and at least one party has a good-faith belief that a valid marriage has occurred. Common law marriage may be terminated only by death or dissolution. Dissolution is not necessary to terminate a putative marriage.

Evelyn promises to marry Carl. Evelyn later gets cold feet, runs off and joins the Army. Can Carl sue and recover?

In a few states, yes. In others, no. The modern trend is toward abolition of the action of "breach of promise to marry."

What is the big difference between family law and other areas of law with regard to payment of fees?

In family law a court may order one spouse to pay the other's fees

Lawyer represents a man in a bankruptcy proceeding. Lawyer then represents the man's former female lover in her defense against a paternity action brought by the bankruptcy client. What case, what result, what rationale?

In re Conduct of Balocca (Oregon 2007). Court held that Lawyer violated the disciplinary rule prohibiting representation that would conflict with the representation of a former client. Rationale. Lawyer obtained confidences from the first (bankruptcy) client regarding his finances that created a conflict of interest in the attorney's subsequent representation of the second client in the paternity action that would cause injury to the first client regarding custody and support.

What is joint custody, and what is the majority treatment of it?

Joint custody grants both parents legal custody (responsibility for making major childrearing decisions). Almost all states now permit some form of joint custody.

Two parties meet the requirement for a common-law marriage. They move around quite a bit. They first reside in a jurisdiction that recognizes common-law marriages, but later move to a jurisdiction that does not. Result?

Latter jurisdiction usually recognizes the marriage.

How might Lawrence v. Texas apply to child custody decisionmaking in the future?

Lawrence held that state sodomy laws banning same-sex, but not opposite-sex, sodomy violate the individual's constitutionally protected liberty, and that moral disapproval is not a legitimate interest to justify such differential treatment. Courts might, however, hold in the future that a child's best interest is a sufficiently compelling state interest to overcome Lawrence's application to the child custody context.

Wife petitions trial court to issue an ex parte order of protection restraining Husband from entering her home, pursuant to state statute. The court dismisses her petition on the ground that the statute violates due process by permitting deprivation of respondent's constitutionally protected interests (his home and custody of his children) prior to notice and a hearing. Wife appeals. Likely result?

Likely result would be that the appeals court would uphold the constitutionality of the statute, reasoning that the legislation constitutes a reasonable means of achieving the state's legitimate goal of preventing domestic violence. The statute likely also affords adequate procedural safeguards (neutral decision-maker and grounds to justify the order).

What role does the custodial parent's motives in moving play in a court's decision whether to permit a custodial parent move?

Many courts consider good faith on the part of the custodial parent as a threshold requirement in relocation disputes. Thus, courts may deny relocation requests if ti can be shown that relocation is sought for the sole purpose of restricting the noncustodial parent's visitation rights. This is the ALI's position when it holds that custodial parent moves be in good faith.

What significance does a child's preference play in custody decisions?

Many states consider a child's preference in making custody decisions.

Define the CRIME of incest.

Marriage or sexual intercourse between persons who are related within the prohibited degrees of kinship.

What was the idea behind allowing tort suits for breach of promise to marry?

Marriage was seen as a property transaction. Women were stigmatized by broken engagement, as it suggested that she was no longer a virgin.

What is the traditional standard for allowing a court to void and annul a marriage due to duress?

Marriages are voidable and may be annulled if a party enters the marriage due to duress. Traditionally, courts required that physical force or the threat of such force be sufficient to overcome the plaintiff's will (a subjective test) as opposed to a reasonable person's will (an objective test). Courts have held that threats of criminal prosecution will not suffice. Mental distress may suffice but must make a party unable to act as a free agent in entering the marriage.

What is the rationale for marital age restrictions?

Maturity is necessary to promote marriage stability.

When may courts modify separation agreements?

May modify based on factors that permit recission of other contracts (i.e. fraud, duress, etc.) Spousal supprot provisions in a settlement agreement generally not modifiable Child support provisiona sre modifiable if the child's best interests require it.

A father in a custody dispute moves for a protective order that would permit him to cross-examine the mediator following the mediator's in-court recommendation if the parties are unable to reach an agreement on custody. California's mandatory mediation statute requires that all mediation proceedings be private, confidential and privileged. once a mediator makes a recommendation and is subject to cross-examination, the mediator may have to divulge confidential communications. To address this problem, local court rules require that a mediator not state his/her reasons for a recommendation and therefore denies the parties the right to cross-examination. What case was this? What result?

McLaughlin v. Superior Court (Cal. App. 1983). Court held that the policy denying cross-examination is unconstitutional. If local practice permits the mediator to make a recommendation, the court concluded that due process required that the mediator be subject to cross-examination.

Has state law in the area of family law gotten more different or similar in recent years? What accounts for this?

More similar. Two reasons: 1. Uniform Acts on adoption, child abduction, child custody, family support, marriage, divorce, parentage, premarital agreements, child abuse, etc. 2. ALI's Principles of the Law of Family Dissolution (2002), which attempted to homogenize family law by clarifying principles such as allocation of custodial and decisionmaking responsibilities for children, child support, distribution of marital property, compensatory payments to former spouses, etc. This was like a Restatement for family law.

What is the mens rea requirement for criminal prosecution for bigamy or polygamy?

Most modern courts require intent that the defendant enter into a second marriage with the knowledge that the first marriage was still valid. Some jurisdictions, however, penalize a defendant despite the defendant's bone fide belief that the first marriage had ended.

In child custody cases, can kids be represented by counsel?

Most state give the court discretion to appoint a legal representative for the child.

Is physical separation as a ground for divorce still existent today?

Most states continue to provide for no-fault divorce based on the ground of physical separation.

Can spouses sue one another for negligent transmission of venereal disease?

Most states now impose liability. Some courts formerly barred recovery based on interspousal tort immunity doctrine. A majority of courts holds that liability for negligent transmission of VD extends to situations in which the defendant has constructive, and not merely actual, knowledge that s/he is infected.

What is the role of a child's wishes in the making of custody determinations?

Most states, either by statute or case law, *require* consideration of a child's wishes when making custody determinations.

What is the standard of evidence required to terminate parental rights? What case? What constitutional provision?

Must be more than a preponderance standard under Santosky v. Kramer and the Due Process clause of the Fourteenth Amendment.

Where is "community property" marital property regime practiced?

Nine states, the easternmost two of which are Louisiana and Wisconsin.

What has the Supreme Court said regarding the rights of communal families?

No fundamental rights to association (meaning no right to live together free from governmental interference). No fundamental rights to privacy.

Can a lawyer charge contingent fees in divorce actions?

No; considered unethical.

Must a court have personal jurisdiction over the defendant to terminate a marriage?

No; not if the plaintiff is domiciled in the forum state.

What is a non-vested pension?

Non-vested pension: One in which the employee has not completed the required years of creditable service in order to earn the right to receive benefits under the terms of the plan.

May a court deviate from statutory guidelines regarding how child support is to be awarded?

Only in appropriate cases.

What is the role of criminal law in ensuring that child custody orders are enforced?

Parents who wrongfully remove or retain children may incur criminal liability for violation of state statutes on child abduction. Note. Some states provide a defense for a parent who acts to protect a child from harm.

What are the elements of cruelty, as a ground for at-fault divorce?

Plaintiff must show: 1. A course of conduct that is so severe as to 2. Create an adverse effect on plaintiff's physical or mental well-being

Why was it necessary to pass the Pregnancy Discrimination Act of 1978?

Plaintiffs were unable to challenge employers' policies failing to provide for pregnancy leave, though they did have leave policies for other disabilities. Such policies were permitted by some state statutes that created disability policies providing wage replacement for all forms of disability except pregnancy.

When a natural parent and a non-parent are engaged in a custody dispute over a child, what is the leagl starting point of such a case?

Rebuttable presumption favors the natural parent in a custody dispute pitting a parent versus a non-parent.

What are the fault-based *defenses* to divorce?

Recrimination, connivance, condonation, and collusion.

Case in which the Court held that sex discrimination violates equal protection.

Reed v. Reed (1971)

Husband is a workaholic; he never comes home from work before eight. He's sexually impotent, doesn't care about the kids, and spends days without talking to his wife. Wife leaves their home with the kids and files for a fault-based divorce. What case was this, what was the wife's grounds, and what was the result?

Reid v. Reid (Va. Ct. App. 1989). Wife claimed that the impotence, workaholism, indifference as a husband and father, and lack of intimacy justified her departure. Court denied Wife's petition, holding that, because Wife's response to the marital problems was to terminate marital cohabitation and file for divorce, she committed desertion, thereby forfeiting her right to spousal support. (VA Ct. App. 1989)

When comparing "traditional families" with "nontraditional families," what do we mean when we are talking about the former, the "traditional" families?

Relationships based on -Ceremonially-initiated heterosexual marriage, -Consanuinity, and/or -Adoption

What is the role of the parents' relative wealth in determining custody?

Relative wealth of the parties is not determinative unless one parent is unable to provide adequately for the child.

Purpose of the putative spouse doctrine?

Relied upon to confer benefits upon an "innocent" spouse at death (e.g. for inheritance purposes, state or federal death benefits, to establish standing to sue for wrongful death), or dissolution (e.g., to establish rights to marital property or spousal support).

Define "goodwill."

Reputation of a business that signifies the probability of future earnings.

What are some reasons for the decline of the traditional nuclear family?

Rising incidence of divorce, changes in sexual mores, and widespread disillusionment with the institutions of marriage and family.

What is the "percentage of income" model?

Second most popular, and simplest, model for establishing guidelines on the award of child support. Allocates child support based on a percentage of the obligor's income and the number of children. Example: In Wisconsin, an obligor must pay 17% for one child, 25% for two children, 29% for three, 31% for four, and 34% for five or more. Obligor pays the same amount regardless of the custodial parent's income.

Distinction between a separation agreement and an antenuptial agreement.

Separation agreement is entered into by the parties during the divorce process. Antenuptial agreement is entered into before the marriage.

What are the factors which a court may consider as relevant to the determination of a parent's fitness?

Sexual conduct, careers, daycare, wealth, domestic violence, disability.

Suspecting that Wife is fond of the chauffeur, Husband intentionally gives chauffeur ample opportunity, both day and night, to be with his Wife. Husband also hires detectives to spy on Wife and inform him of her activities. The detectives bring him evidence of an affair between the two, so Husband seeks a fault-based divorce on grounds of adultery. What defense should Wife use?

She should use the defense of connivance. Husband actively facilitated Wife's commission of adultery and made no effort to warn her or fire his employee.

From the perspective of the recipient, how is spousal support treated for tax purposes?

Similar to salary, it is treated as income. It is included in her gross income and taxable to her.

What are the similarities and differences between a separation agreement and a premarital agreement?

Similarities. Both separation agreements and premarital agreements address the financial consequences of dissolution. Differences. Parties enter into a prenuptial agreement before a marriage. They enter into a separation agreement or "settlement agreement" after they decide to terminate the marriage.

If a custodial parent has interfered with a noncustodial parent's visitation rights, what potential causes of action in tort may the noncustodial parent bring?

Some jurisdictions allow IIED cause of action. Far fewer courts recognize the tort of Alienation of Affections for visitation purposes. Many courts refuse to recognize the tort of custodial interference to permit recovery by noncustodial parents for interference with visitation rights.

What is the role of ADR in child custody cases?

Some jurisdictions recommend or even mandate mediation in cases involving custody or visitation disputes.

Can gay couples enter into property disposition contracts for the event of their dissolution?

Some jurisdictions that recognize cohabitation contracts extend recognition of such contracts to same-sex partners, either through domestic partnership legislation or under case law that applies contractual remedies. A few jurisdictions have enacted statutes that void any contracts between members of same-sex couples that relate to the privileges or obligations of marriage.

What role, if any, does a parent's history of domestic violence play in custody determinations?

Some states adopt a rebuttable presumption against custody awards to an abusive spouse.

What has been the modern trend regarding tort causes of action for interference with the marriage relationship, and when did it begin?

Starting in the 1930s, courts and legislatures began abolishing actions for alienation of affections and criminal conversation via the same anti-heartbalm legislation that eliminated actions for breach of promise to marry.

What was the aftermath of Troxel?

State legislatures and courts scrambled to determine whether their grandparent visitation statutes were constitutional. o Many revised their statutes specifically --to limit the number of persons who could seek visitation and --to give deference to a fit parent's wishes. o Some states revised their statutes to require that grandparents demonstrate a significant prior relationship with the child.

Which equal protection classifications trigger strict scrutiny?

Strict scrutiny applies to suspect classifications based on race, alienage and national origin. Also any classification related to exercise of a fundamental right, which the book doesn't mention.

What is the general rule regarding the standard for modification of spousal and child support?

Such a change generally requires a substantial and material change of circumstances since the entry of the decree.

What options does a custodial parent who has been deprived of a child's custody have under tort?

Such a parent could possibly sue for IIED or custodial interference. The former cause of action is more likely to be heard by more courts than the latter in child custody deprivation cases. Some courts express fear that such litigation is not in the best interests of the child, as it subjects the child to increased parental hostility.

Two ways in which marital status doesn't matter as much in criminal law as it did during the common law era.

Testimonial privilege. At common law, a spouse could not testify for or against the other spouse in criminal proceedings. The SCOTUS has held that a spouse may testify against the other in criminal proceedings in limited circumstances. Marital Rape. Modern jurisdictions are abolishing or limiting the common-law marital rape exemption under which a husband could not be guilty of raping his wife.

Of the two marital property regimes in the U.S., which one is the more common one?

The "common law" marital property regime is more common than the "community property" marital property regime.

Define "spousal support."

The award of future payments to one spouse payable from the future earnings of the other spouse. Sometimes called "maintenance," formerly called "alimony."

What is the current legal status of the "tender years" presumption? Example of a typical such case that we read?

The federal government has not abolished the "tender years" presumption. However, beginning in the 1980s, several courts invalidated the maternal preference as a violation of equal protection. By now, most states have abolished the tender years presumption in response ot constitutional challenges, and courts now assume that both parents are capable of caring for a child. Courts may still, however, consider the age of a child as a relevant factor in custody decisionmaking.

What is the majority rule regarding joinder of tort claims and divorce claims?

The majority of jurisdictions permit (but do not mandate) joinder of tort claims and divorce claims.

What is the modern view of the necessaries doctrine?

The modern view is that, by requiring the husband, but not the wife, to be financially responsible for necessaries, the necessaries doctrine constituted gender-based discrimination.

How does marriage differ from other contracts?

The state is a party who imposes obligations. It cannot be modified as easily as other contracts can.

What are "community property" jurisdictions?

These are jurisdictions in which spouses are permitted to enter into contracts that make separate property into community property or vice versa.

How do states restrict incest?

Through both civil restrictions and criminal provisions.

What are some ways by which a couple seeking to establish that they were common-law husband and wife can show that they "held themselves out" as husband and wife?

Tjeu cam show that they referred to themselves as "Mr. and Mrs.," or by wearing wedding rings?

What is the modern trend regarding the tort of alienation of affections?

To abolish it. Most states have abolished the tort either by statute or by case law.

A married shopkeeper in a small town in NC elopes with his clerk's wife. The couple goes to NV to seek a divorce. After residing there for six weeks, they file for, and are granted, divorces from their spouses. The shopkeeper and the clerk's ex return to NC. They are tried and convicted of bigamous cohabitation. They appeal. What result? What case?

Williams v. NC (Williams I) (U.S. 1942) Convictions were overturned based on the Full Faith and Credit Clause. A NC court must give full faith and credit to a NV divorce decree when one of the spouses is domiciled in NV. Because the divorce decree states that the husband of one couple and the wife of the other couple were domiciled in NV, NC must give full faith and credit to the decree.

Why is wiretapping a family law issue?

Wiretapping is a federal crime, for which there is both criminal and civil liability. It is a family law issue because family members are more likely to want to wiretap each other than are perfect strangers, and they more often share common telephones, allowing them to do it.

Evelyn and Jorge are divorced. Jorge lives in Nevada; Evelyn lives in California. Evelyn filed in California and the divorce proceeding was ex parte. Must Nevada recognize the California divorce decree?

Yes, Williams v. North Carolina I (U.S. 1942) holds that the Full Faith and Credit clause requires that Nevada recognize the California divorce decree, even though Evelyn is in California and Jorge was not heard in the proceeding.

Gail and Richard have been married for 20 years when Richard moves out of the house and begins engaging in affairs with several women. Three months later, Gail retains legal counsel and files for dissolution. If Gail resides in a jurisdiction that permits divorce on the ground of "irreconcilable differences," will she prevail?

Yes. Irreconcilable differences (based on the California no-fault legislation) are those differences which have caused the irremediable breakdown of the marriage. Gail could successfully argue that Richard's conduct caused the marriage to break down and that such a situation was irremediable.

Balta and Adela are married for a good many years. They divorce, and Balta is ordered to pay alimony. Adela remarries. May the state automatically terminate Balta's support obligation upon the remarriage?

Yes. Some jurisdictions follow a rule of automatic termination upon a recipient's remarriage. Thers follow a rule of discretionary termination.

Margaret and Jonathan divorce after a 10-year marriage. Jonathan agrees to pay Margaret $2,500 per month as spousal support for a four-year period. Two years after the divorce, Jonathan is seriously injured in an automobile accident and is unable to return to work while he undergoes extensive physical therapy. He requests a modification of his spousal support to $500 per month--a sum that he can more easily pay from his disability insurance. Will hid request be granted.

Yes. To succeed in his request for modification, Jonathan must show a substantial and material change in circumstances. Given that the automobile accident seriously affected his health and his ability to work, Jonathan's request for a decrease in his spousal support payments should be granted.

What is a situation in which there might be a conflict between federal and state law regarding spousal entitlements to pensions as marital property?

Federal pension benefits such as railroad employees' benefits and military retirement benefits. Sometimes the rights to such benefits accorded to parties under federal law and state law conflict. Note, that if you answered "bankruptcy," you'd also be correct.

Intermediate scrutiny test.

A regulation or government practice which discriminates on the basis of gender must be "substantially related to an important governmental interest." Craig v. Boren (1976) Parties seeking to defend the classification must demonstrate an "exceedingly persuasive justification." Court may demand that the proposed justification be the actual one in mind when the classification was adopted. U.S. v. Virginia (1996)

Effects of increased financial independence on family law.

Both men and women are financially responsible for child support. Divorced women are regarded as less needy of spousal support. Some feminist commenatators charge that the adoption of the "equal treatment approach" has led to a diminution of women's rights. Women are no longer expected to need support, so their standard of living typically decreases after divorce, while mens' typically increases.

Name the one big universal limitation to the increased recognition of premarital contracts, and the rationale behind it.

Parties may not enter into an enforceable agreement about child support or child custody. This is a result of the state's countervailing interest in child welfare.

What is the effect of a parent's disability on custody decisionmaking?

1. The UMDA and many state statutes require consideration of the mental and physical health of all individuals when applying the best interests standard. 2. When a parent is disabled, courts generally focus on the effect of the disability on the child.

What has been suggested as a constitutionally-acceptable replacement for the maternal preference in child custody decisionmaking?

A "primary caretaker presumption," by whoch courts confer a custodial presumption in favor of the parent who has assumed the status of the primary caretaker.

May a child support payor's remarriage and subsequent ensuing family obligations justify a reduction in the payor's child support obligations?

A court will consider the payor's remarriage if it places increasing demands on his financial resources. However, at the same time, a court may consider the income of the payor's second spouse in the determination of the payor's resources.

Do intraspousal IIED claims fall within the domestic relations exception to federal jurisdiction?

A number of courts have said that intraspousal claims for IIED do not fall within the domestic relations exception.

How do contempt proceedings relate to the enforcement of child custody orders?

A parent will be found in contempt of court if that parent could have complied with the custody order, yet willfully failed to do so. Contempt may be civil (fine or temporary jailing until parent complies) or criminal (conviction with a fixed sentence)

Evelyn is black, Carl is white. They get married out of state because they are from a state which prohibits interracial marriage due to an anti-miscegination statute. After they marry, they return to their home state. Subsequently, they are convicted of violating the anti-miscegination statute, and are given a suspended sentence of 25 years provided they leave the state. They appeal. What result?

Based on Equal Protection and the Due Process Clause, they would prevail. The Supreme Court in Loving held that statutes restricting the right to marry on the basis of racial classifications violates both Equal Protection and Due Process.

How have states approached the necessaries doctrine to avoid equal protection problems?

By statute and by case law, they have: 1. Abolished the doctrine; 2. Expanded liability to both spouses; 3. Placed primary liability on the serviced spouse (i.e. make the creditor seek payment first from that spouse, and--if unable to collect--then from the other. (this is the emerging trend.)

What is the domestic relations exception to federal jurisdiction.

Federal courts can refuse to hear cases involving divorce, alimony or child custody.

Has incest broadened or contracted as a crime? Explain.

It has contracted. Starting in the 1960s, public attention to the problem of child abuse caused by some forms of sexual misconduct between adult and minors formerly labeled as "incest," led to such conduct being redefined as "sexual abuse."

What are the elements of desertion/ abandonment?

1. A voluntary separation 2. With intent not to resume cohabitation 3. That is without consent or justification

What are the two parts of child custody? Which of the two is shared in a joint-custody situation?

1. Legal custody. Legal custody confers responsibility for major decisionmaking, such as upbringing, health, welfare and education. This is the part of custody that is shared in joint-custody circumstances. 2. Physical custody confers responsibility for day-to-day decisions regarding physical care.

What is the prevailing view on recognition of foreign divorce decrees by U.S. and state courts?

An American jurisdiction may recognize a judgment of a foreign nation provided that the judgment was rendered after a fair hearing by a court that has personal jurisdiction over one or both of the parties. Restatement (second) of Conflict of Laws S98

Major distinction between an annulment and a divorce

An annulment declares a marriage void as if it never occurred. A divorce declares that a marriage that was once valid has come to an end as of the date of the dissolution decree.

Can a state make obtaining a marriage license contingent upon the payment of certain fees.

Arguably, no. The Supreme court in Zablocki invalidated a restriction on the right to marry based on poverty.

How has the ADR movement affected family law?

Certain lawyers, scholars and judges found that family law was too intrusive into the family's private life and decisions. They therefore found that "private ordering"--the ability of parties to resolve their disputes without judicial intervention--should be increasingly recognized. Courts have started recognizing antenuptial agreements. Mediation of family disputes is on the rise.

Supreme Court case in which Court found a substantive due process liberty right in contraception decisions.

Griswold v. Connecticut (married couples) Eisenstadt v. Baird (all couples)

Kathy and Bret have been living together for 7 years and are engaged to marry. One day, Bret is riding his motorcycle while Kathy is following him in her car. Suddenly a car driven by Frank blows through a traffic light and kills Bret. Kathy is distraught; she just saw her fiance killed in a sudden, violent and gory manner. She sues Frank for NIED. If this is a district that allows cohabitating unmarried couples to recover in tort for injuries to each other by third parties, what is the likely rationale, and what is the name of the case in which the same rationale was used?

In Graves v. Estabrook (NH 2003, identical facts), the court found that the plaintiff had standing because she was a bystander who witnessed a horrific accident, but also because she was engaged in a stable, enduring, substantial and mutually-supportive relationship with the cohabitant-victim.

Wife sues husband for infecting her with HIV, claiming IIED/NIED, fraud and negligence. Issue arises as to whether spouses have a duty to disclose to each other their HIV-related status.

In John B. v. Superior Court (Cal. 2006), the California Supreme Court held that: In the balance of the husband's state constitutional right to privacy against the wife's right to discover relevant facts, the husband's medical records and sexual history (extending to six months prior to his negative HIV test) were discoverable. The husband waived his right to the confidentiality of his HIV results by placing his HIV status at issue when answering his wife's allegations by stating that she was the one who brought the HIV infection into the relationship.

Carl is an indigent man. Stacey claims that Carl is the father of her baby and owes support. Carl swears that the baby isn't his, but can't afford a paternity test to prove it. Result? What case?

In Little v. Streater (U.S. 1981), the Court holds that due process requires indigent defendants the right to blood tests to prove or disprove paternity.

What are the disadvantages to remaining an unmarried couple, versus marrying?

In many jurisdictions cohabitants face discrimination in terms of employment, housing, medical care and inheritance.

What is the rationale behind joint custody?

Joint custody is based on the rationale that children benefit from continued and frequent contact with both parents and that both mothers and fathers have an important role in childrearing.

To whom was the action of criminal conversation available at common law?

Only husbands could bring actions of criminal conversion.

Can a court consider a parent's extramarital sexual conduct in making a custody determination?

Only if the extramarital sexual conduct causes ahrm to the child

Define "connivance"

Participation in, or consent to, the defendant's wrongful conduct, usually limited to suits for adultery.

How should a divorce petitioner provide notice to the defendant?

Petitioner knows where defendant is: Personal service or mail; Petitioner does not know defendant's whereabouts: Constructive service such as publishing or posting.

Why might one wish to file for divorce on fault-based grounds?

Some states require by statute a waiting period before getting a no-fault divorce. If one claims fault in a divorce and fault is found, than the person claiming may be entitled to property and support, or deny the other party property or support.

What stance does the ALI Principles take regarding treatment of separate property?

That in the dissolution of *long term marriages*, separate property should be recharacterized as marital property, in order to conform with the reasonable expectations of parties in long-term marriages. This may also be done in shorter marriages to avoid substantial injustice.

What case narrowed the domestic relations exception to federal jurisdiction? How did it do this, and what were the effects?

The USSC narrowed the domestic relations exception to federal jurisdiction in Ankenbrandt v. Richards. It did so by limiting the domestic relations exception to cases involving the seeking/issuance of divorce, alimony and custody decrees. The effect is that it permits federal courts to adjudicate a broader variety of disputes.

In one NY case, the state's highest court shot down an equal protection argument that a state law prohibiting gay marriage violates gay peoples' right to equal protection, as it discriminated on them based on the sex of their partner. What was the case, and what was the court's counter-argument.

The case was Hernandez v. Robles (NY 2006). The court's counter-argument was that the ban does not constitute sex discrimination because both women and men cannot marry persons of the same sex.

Describe and name the doctrine whereby a wife who leaves her husband can claim to have been deserted and bring a fault-based divorce action against her husband, or--if she has a fault-based divorce action brought against her for desertion--can argue that it was not she who deserted her husband, but the other way around.

The doctrine is called "constructive desertion." It says that when a spouse engages in conduct that causes his spouse to leave or justifies his spouse's departure, it is as if the remaining spouse was the one who deserted the leaving spouse.

What is the current status of the common law doctrine of interspousal immunity in tort?

The majority of courts have either abolished or limited it. Those that still recognize the doctrine preclude recovery only for negligent torts.

Among community property jurisdictions, what is the most significant variable? What is the majority rule regarding this variable? What accounts for the diversity?

The most significant variable among community property jurisdictions is the manner in which the community property is divided upon dissolution. Majority rule is to equally divide the community property Some community property states adopt equitable distribution. Even among these states, however, there is disagreement as to what constitutes "equitable distribution," especially regarding the treatment of separate property

Who has a right to the disposition of a decedent's body? What level of protection does this right enjoy, and under what rationale?

The next-of-kin decide the disposal of remains. The 6th Circuit has decided that next of kin have a constitutionally-protected property interest in the bodies of their deceased relatives.

Under the ALI Principles, what are the requirements of de facto parenthood?

The person claiming de facto/psychological parenthood must 1. regularly perform an equal or greater share of caretaking as the parent with whom the child primarily lived; 2. lived with the child for a period of not less than two years; AND 3. Acted as a parent for non-financial reasons and with the agreement of a legal parent.

Define "child custody."

The right to the care and control of a child, including the ability to make decisions regarding the child's residence, discipline, education, training, medical care, etc.

When modern statutes and case law have imposed liability on ex-spouses for child support for their step-children, how have these laws limited this liability?

These cases and statutes often limit liability to co-resident stepchildren or to the duration of the marriage that gave rise to the step-relationship.

How have insurance companies responded to the incremental abolition of the (tort) interspousal immunity doctrine? How have courts reacted to this?

They have inserted into insurance policies "family exclusion clauses" that exclude coresident family members from coverage. Some courts have held that such clauses violate public policy.

Mother is granted custody of 8-yr-old Son. Father requests and is granted modification based on the fact that Son, now 12, wants to live with his father in order to engage in hunting, fishing and hiking. Mother appeals. What case was this? In this case the court applied the traditional (majority) standard; what was the result?

This was King v. King (RI 1975). The court affirmed the modification, holding that a substantial increase in the age of the child during some critical period in his life, standing alone, constitutes a change of circumstances sufficient to warrant a modification.

Under what federal statute does Congress fund battered women shelters?

VAWA

Under which situations do courts appear to be more sympathetic to a finding of a common-law marriage?

cases of lengthy relationships and claims against defendants who are governmental entities.

Can a court consider a parent's sexual orientation in making a custody determination?

Only if the sexual orientation has an adverse impact on the child.

May a child support payor's health problems result in a reduction in payment of spousal or child support?

Possibly. This depends on whehther the health problems meed the standard of a substantial change in circumstances.

What is one argument with which landlords who do not wish to rent to rent to unmarried couples have met some success?

That doing so would violate their First Amendment rights to religious freedom, as their religion prohibits them from renting to unwed couples. This worked in Minnesota, but did not fly in Michigan.

What is the most common state remedy for nonpayment of child support, and how does it work? What is a prerequisite to a parent's being found to be in contempt?

The most common state remedy for nonpayment of child support is contempt. Under a court's broad equitable power, a court may hold in contempt a noncustodial parent who refuses to pay child support. This results in incarcerating the parent until he or she pays or agrees to pay. to be found in contempt, a court must determine that the obligor first had the ability to pay.

In divorce law, one factor has an enormous effect over the personal jurisdiction exercised by the court. What is that one factor, and how does it effect the court's personal jurisdiction?

The one factor is whether the divorce is ex parte (unilateral), or bilateral. In a bilateral divorce, the court has personal jurisdiction over both parties. In a unilateral divorce, the court has personal jurisdiction over only one of the spouses.

What determines wehther ro not a separation agreement is valid?

The validity of separation agreements is determiend by contract law. Such agreements may be set aside for fraud, duress or overreaching.

What types of restrictions exist against bigamy and polygamy.

There exist both civil restrictions and criminal sanctions.

In states that continue to recognize the action of breach of promise to marry, how do they generally treat the cause of action?

They generally limit recovery, either by limiting damages to those that are clearly demonstrated, or they require strict adherence to procedural requirements established by statute.

Under what legal regime have gay plaintiffs seeking the ability to enter into same-sex marriages had success in the last fifteen years?

They have had more success in recent years because they have sought to have their right to marry recognized under their state constitutions' guarantees, such as those states' constitutions' equal rights provisions, protections of the right to privacy and equal protection guarantees. Some state constitutions provide more expansive protection for individual rights than does the federal constitution.

What are the traditional and modern responses regarding the effect of a parent's sexual behavior on visitation rights?

Traditional response: Formerly, courts were likely to impose restrictions on visitation when the noncustodial parent was sexually involved in a non-marital heterosexual relationship. Modern response: Most courts no longer impose restrictions on visitation int he context of opposite-sex relationships. However, some courts continue to impose such restrictions when a noncustodial parent is gay or lesbian.

Carl and Evelyn get married in state A and move to state B. After moving, Evelyn seeks an annulment. Which state's laws govern the validity of the marriage?

Traditional rule. Marriage validity is determined by the law of the place where the marriage was celebrated. Restatement (Second) of Conflict of Laws. Validity of marriage is determined by the state that has the "most significant relationship to the spouses and the marriage."

What is the traditional rule regarding the effect of sexual conduct on child custody decisions? What is the modern rule?

Traditional rule: A parent's acts of adultery and/or cohabitation resulted in a denial of custody. Modern view: Parent's sexual conduct is relevant only if it has an *adverse effect* on the child.

What is the traditional paradigm of child custody? How was child custody determined (when and what outcome)?

Upon divorce, the court awarded custody to one parent (pre 19th Century it was the father, in mid- late-19th century it became the mother due to feminist advocacy). The parent that did not get custody was given visitation rights and a duty of support while the child is with the custodial parent. Fault has played a role in custody decisiomaking. Upon divorce, custody was awarded to teh innocent spouse (i.e., the spouse who was not guilty of a fault-based ground for divorce).

Carl and Evelyn execute a prenup that is motivated by a clause in Carl's divorce agreement from his first wife that restricted his visitation with his son from the prior marriage. Carl and Evelyn's prenup states that, in the event of divorce, any children shall spend equal residential time with both parents. They end up getting divorced, and Evelyn challenges the agreement. Result?

Evelyn will prevail. Parties may not enter into an enforceable prenup that concerns child custody, stemming from the state's interest in child welfare.

Evelyn is convicted of harboring her fugitive husband Carl and of being an accessory after the fact. Carl is wanted for $177K in unpaid child support to his former wife. Knowing that Carl is wanted for a violation of federal criminal law, Evelyn helps Carl flee to Mexico, provides him funds and refuses to divulge his whereabouts. She appeals her conviction, alleging that the harboring and accessory statutes impermissibly infringe upon her right to marry. Result?

Evelyn's argument will not succeed. the fact that a statute affects the marriage relationship does not mean that the statute infringes on the right to marry. Loving v. Virginia involved normal spousal conduct, whereas the harboring and accessory statutes punish conduct that demonstrates an intent to frustrate law enforcement. also, there is a significant difference between the importance of the government interests involved. The purpose of the statute in Loving was to prevent interracial marriage, whereas the harboring and accessory statutes advance the orderly operation of essential government functions of apprehending criminals.

Three years after the parties divorce, conflict develops about the religious upbringing of the parties' young daughter. Husband is Catholic; wife recently joined the Pentacostal Church, which has several lifestyle restrictions that affect daughter (regarding clothing, makeup, jewelry, sports, dance). Daughter was baptized Catholic. Both parents seek sole custody. Trial court awards Husband sole custody. Wife appeals. What case? What outcome? What reasoning? Holding/Significance of the case?

Holder v. Holder (Ohio App. 2007). -Court affirmed the award of sole custody to the husband. -Reasoning was that Wife's refusal to place child's needs above her religious convictions justified teh custody modification in favor of father because teh parent's conflict was resulting in teh child's confusion, guilt and fear. -Holding/Significance is that a court may take into account the effect of a parent's religion on the child.

From the perspective of the payor, how is spousal support treated for tax purposes?

IRS permits the payor a deduction for the alimony he pays ot the recipient. It is deductable to the payor, so long as the payments are: o In cash (rather than in property/services) o Received by or on behalf of teh other spouse according to a divorce decree or written separation agreement; and, o going to terminate upon the recipients death Note that parties cannot live to gether nor file a joint tax return after the payments begin.

Lawyer represents Wife in a personal injury action. Lawyer then represents Husband in the couple's divorce action. Can he do this? What case? Why/why not?

Hurley v. Hurley (Maine 2007) says no. Rationale. Personal injury action and divorce are "substantially related." In the personal injury action, Lawyer obtained confidential information from Wife concerning her health, her employment history and her response to contested litigation. This information could be used against her in the dissolution action regarding issues of custody, support and property.

Virginia statute requires husbands to provide necessaries to their wives. A hospital sues a husband for services rendered to his wife. What result?

Husband should defend by challenging the statute as unconstitutional under Equal Protection. Court would likely hold that the statute imposing financial obligations only on husbands, but not on wives, constitutes gender based discrimination under the state constitution as well as under the Equal protection Clause. Caveat. some states have held that a rule whereby husbands are primarily liable for spousal debts satisfied equal protection doctrine in a society in which women earn less than men.

What was the change in the 1960s regarding the role of constitutional principles in the regulation of the family?

Increased constitutionalization of family law. Court developed notions of marital privacy and family privacy based on liberal interpretations of the Fourteenth Amendment.

Two parents have a nonmarital infant. Family court gives custody to the father based upon the relative quality of the father's home environment and his financial ability to support the child. Mother appeals. What case? What result?

Wellman v. Dutch (App. Div. 1993). Appeals court reversed, holding that: 1. Both parents had adequate parenting skills and could provide for the intellectual and emotional development of the child. 2. The family court improperly considered the father's financial situation in awarding custody because the importance of continuity of care by the mother substantially outweighed the father's possibly greater financial ability to support the child.

Do all states restrict marriages by consanguinity? Which ones are not regulated by all states?

Yes. All states restrict marriages by consanguinity. Only some states prohibit first-cousin marriages.

A payor parent decides to change to a career which pays less than that in which he was employed prior to his divorce. He petitions for reduction of child support payments. Result?

When a parent voluntarily changes employment, his or her child support obligation may be reduced only if the voluntary change was reasonable. If the change of occupations was in good faith (not attributable to an attempt to avoid payin g support); and, if the action will not deprive the child of reasonable financial support. The existence of good faith is a factual determination. If a parent is voluntarily unemployed or underemployed, the child support obligation will be calculated based on earning potential.

When is a settlement agreement enforceable by means of a court's contempt power?

When it has been incorporated and merged into the divorce decree, at which point its provisions become part of the decree and may be enforced by court order, including by contempt. Note, however, that if an agreement is incorporated, but is not merged, into teh decree, it remains a separate enforceable agreement and is not enforceable by contempt.

What situation gives a court more latitude to impose a post-majority child support obligation?

When the parties have provided for that eventuality in a separation agreeement.

When are courts especially likely to take a dim view of attorney-client sex? Cases?

When the sex is coerced: -Iowa Supreme Court Attorney Disciplionary Bd. v. McGrath (Iowa 2006) (exchange of sex for legal services) -In re Tenenbaum (Del. Super. Ct. 2007) (sexual assault of client)

What is the modern majority approach regarding the competence of spouses as witnesses?

A majority of jurisdictions now regard a spouse as a competent witness to testify FOR OR AGAINST the defendant in CIVIL proceedings. Most jurisdictions permit the defendant's spouse to testify FOR the defendant in CRIMINAL cases. Jurisdictions are divided concerning ADVERSE spousal testimony in CRIMINAL cases.

Before the late 1970s and early 1980s, what was the judicial attitude toward joint custody?

Courts were reluctant to order joint custody, fearing the difficulties on divorcing parents and the effects upon the children. This judicial attitude has changed in more recent years.

What was the "anti-heartbalm legislation?" What did it accomplish and what was the reasoning behind it?

"Anti-heartbalm legislation" were the statutes that, in most states, abolished "breach of promise to marry" as a cause of action. Reasoning: -The action is a form of blackmail. -persons should be permitted to break engagements without fear of legal damages; -juries are unfairly biased in favor of the "wronged" woman; -the action is based on sexist and archaic stereotypes of women; -damages are based on an outdated view of marriage as a property transaction (by compensating women for loss of social and economic position).

What are the various approaches which states take toward joint custody? Which approach is the most common?

1. Joint custody is a *presumption*. Some states following this approach require parental agreement. 2. Joint custody is a *preference.* 3. Joint custody is *one factor* in determining what are the best interests of the child (this is the most common approach).

Why might a spouse seek an annulment today?

1. Religious reasons (b/c divorce bars a party from remarriage) 2. To reinstate a benefit that was lost upon marriage 3. To avoid a state's lengthy durational residency requirement for divorce (also a reason some seek legal separations)

Martha, a nurse, and George, a lawyer, divorce after 21 years. They have three children. Upon their dissolution, the parties execute a written agreement providing that "Husband will pay Wife $25K per year for three years as spousal support, terminal upon Wife's death." George also agrees to pay child support and to transfer to Martha the marital residence (originally cost $100K but the current market value is $150K). Martha and George then seek legal advice as to whether (a) Martha must pay tax on the spousal support she receives; (b) George will be permitted a deduction for the full amount of teh alimony he pays Martha; and, (c) George will recognize any gain on the transfer to Martha of the home.

(a) The IRS includes Martha's alimony in her gross income. Therefore Martha must pay tax on the entire amount of alimony she receives, although she may be able to offset her tax liability through the use of various deductions and credits. (b) George will receive a deduction for the full amount of alimony he pays Martha because the agreement contemplates that his payments will be in cash, received by Martha, pursuant to a written separation agreement, the parties do not plan to continue to cohabit nor to file a joint return once payments commence and George's laibility for spousal support is to terminate upon Martha's death. (c) When George transfers the home to Martha, he will not recognize gain, nor will Martha receive income. As for the basis, Martha will take the property at George's basis ($100K), rather than the fair market value. Thus, if Martha sells the home for $150K, she must report a taxable gain of $500K.

What is the policy reason why some courts only recognize those [unmarried couples' contractual arrangements regarding disposition of property accrued during the relationship] which are *expressly stated*?

*Implied* contracts for personal services are not enforceable because such services are often rendered gratuitously in intimate relationships. There is an inherent likelihood of fraud in claims for contractual damages. There are difficulties of proof when dealing with implied contracts.

What are common forms of nontraditional families?

-Cohabitation; -Domestic Partnerships; -Communal arrangements; -Extended families.

What are some traditional defenses for the tort of breach of promise to marry?

-Plaintiff's fraudulent misrepresentation; -Nondisclosure of prior sexual conduct; -Impaired physical or mental health; -One of the parties was already married at the time of the engagement; -Plaintiff's lack of love for the defendant; -Mutuality of decision to terminate the engagement.

Why could one argue that the marital exemption to rape is still alive and well?

-Some states have a quasi-exemption codified, in which marital rape is a lesser, separate offense to rape. -Some states extend immunity from prosecution to nonmarital cohabitants.

What are the exceptions to the Trammel rule which holds that spouse-witnesses may choose whether or not to testify adversely against their spouses in criminal cases?

-Spouses have jointly participated in the crime; -Spouses are permanently separated at teh time of the communication; -Underlying offense was committed against a spouse or a child of either spouse (a "familial offense")

Many child abductions are perpetrated by family members. What are the traditional and modern approaches to dealing with this problem? Examples of the modern method?

-The traditional approach is to impose criminal liability on the perpetrators. -The modern approach is to provide for judicially-ordered abduction prevention mechanisms. Examples: -Uniform law. Various parties (parent, prosecutor, court, etc.) may bring an action seeking "abduction prevention measures" after establishing the existence of a credible risk that a child will be abducted. Such measures include: o Imposition of travel restrictions; o prohibitions on an individual's removing the child from a particular geographic area; o Placement of the child's name in a Passport Alert register. -Federal law. International parental Kidnapping Crime Act. Makes it a federal crime for a parent to wrongfully remove or retain a child out of the U.S. Punishable by fine, imprisonment or both. -International Treaty on International Child Abduction (Hague Convention). Proposes guidelines on international child abduction. Limits the ability of the new haven to which the child snatcher has fled to assert jurisdiction by providing for the mandatory return of children under 16 to their country of habitual residence and for the abstention by the new forum from adjudicating the custody dispute. criticisms include: o Short one-year statute of limitations; o ease of evasion by nonsignatory nations.

What are some common situations in which courts may place conditions on a noncustodial parent's visitation time, or on the time during which a custodial parent has physical custody of the child?

-domestic violence -sexual abuse -Religious practices or beliefs -sexual conduct -substance abuse

What were the two precursors to modern no-fault divorce that, like the modern doctrine, eliminated the need to prove fault?

1. "Living separate and apart" 2. Incompatibility.

Define battered woman's syndrome.

1. Abuse occurs within a gradual escalation of tension during a relationship. 2. Women stay in an abusive relationship because they become so depressed by the abuse that they lose the motivation to respond.

What are the two primary dispute resolution processes available for contests over child custody arrangements between divorcing parents?

1. Adversary process; 2. Custody mediation.

What are the two effects of the Pregnancy Discrimination Act?

1. Amends the definitional section of Title VII of the Civil Rights Act to provide that employment discrimination on the "basis of pregnancy, childbirth and related medical conditions" is sex discrimination for the purposes of the Act. 2. Provides that women affected by pregnancy, childbirth or related medical conditions shall be treated the same for employment purposes as other persons who are disabled from work.

1. What is the trend regarding joint custody? 2. What is the origin of the trend regarding joint custody?

1. An increasing number of jurisdictions now permit joint custody. 2. The trend toward recognition of joint custody was triggered by the women's movement's challenge to gender role stereotypes. It also reflects the fact that fathers now take a more active role in childrearing.

1. What were a grandparent's rights to visitation at common law? 2. What is the current legal regime which deals with grandparent visitation and what is its stance on the practice?

1. At common law, grandparents had no right to visitation with grandchildren in the face of parental objection or in the face of death, divorce or termination of parental rights of the custodial parent(s). 2. Today, all states have third-party visitation statutes that permit grandparents (and sometimes other persons) to petition for visitation in certain circumstances.

Two parents share childrearing tasks during their marriage. During their separation, they share alternate physical custody every week, accommodate each other's employment, social and vacation schedules and share babysitting expenses. After their divorce proceeding, however, the parents are unable to agree about daycare. Trial court denies an award of joint custody, awards legal and physical custody to the mother, and gives the father visitation rights. Father appeals. Case? Result? Reasoning?

1. Bell v. Bell (Alaska 1990). 2./3. Although appellate court agrees that joint custody is generally inappropriate where parents are unable to cooperate, the court held that a single conflict over day care does not warrant a finding of an inability to cooperate. The court was also influenced by the state legislature's express policy favoring awards of joint legal custody.

What are the main methods of valuing pensions?

1. Calculate the employee's contributions to the plan, plus interest, and award the nonemployed spouse an appropriate share. This is most useful for pension plans funded by employer contributions rather than those in which the employee only contributes a portion. 2. Calculate the present value of the prospective benefits when they vest, discounted to present day. 3. Determine spousal shares by a formula but retain jurisdiction until payments are actually received.

Debbie and Dwayne are married for 18 months. Each has been previously married and brings separate property into the marriage. Debbie owned a condo and Dwayne owned a house. After the marriage, Dwayne purchases property (a boat and trailer) with his premarital savings. Debbie and Dwayne keep separate checking and savings accounts. At dissolution, each agrees to retain their respective separate property residences, but they dispute ownership of the boat and trailer, as well as Dwayne's accumulated leave time and pension assets. 1. What case? 2. What decision? 3. What holding?

1. Case: Rose v. Rose (Alaska 1988). 2. Decision: Court affirmed the award to each member of the couple the award of his/her own property, without giving either spouse any share of the other spouse's property. 3. Holding: -In arriving at an unequal division, a court can take into account the extremely short duration of the marriage and the respective parties' attempts to retain the separate character of their assets. -A court may deviate from the presumption that an equitable distribution mandates an equal division when it is equitable to do so.

What has led to the ongoing trend of increasing recognition of unmarried couples' arrangements regarding divisions of property in the event of dissolution of the relationship?

1. Changing sexual mores (decreased stigma of sexual relations outside of marriage); 2. Increasing attention to the rights of women (who appear to be unfairly treated by the traditional rule).

What are two ways in which married women's status has negatively impacted their employment?

1. Common-law disability. Common law prevented women from being employed in some professions if they were married. Classic example is Bradwell v. Illinois (U.S. 1873), in which a married woman was not allowed to take the Illinois bar, because a married woman could not enter into contracts, as a lawyer must be able to do. The state court upheld it, and the Supreme Court broadened the prohibition to all women, on the idea that women belong in the private sphere of the family, while men belong in the public sphere. 2. Antinepotism policies. These rules, formulated historically to prevent public officials from hiring unqualified relatives, may serve to prevent one spouse from being employed by the other spouse's employer. They disproportionately affect women because women statistically enter the workforce later than men due to childbearing and the cultural practice of marrying older men.

What are the two ways in which a person may change his or her name?

1. Common-law method. Without legal proceedings, the person adopts another name and uses it consistently and without fraudulent intent. 2. Statutorily-designated procedure. The statutory method does not repeal or displace the common-law ability to change one's name. This method has the advantage of establishing the name change more easily and reliably.

What are the various remedies which exist to enforce custody determinations?

1. Contempt proceedings 2. Habeas corpus 3. Tort recovery 4. Criminal prosecutions for child abduction.

Marriage had elements of two different kinds of legal arrangements. What are these?

1. Contract (agreement between two parties); 2. Civil Status (regulated by the state)

What are the two kinds of implied contracts, for purposes of disposition of nonmarital relationship property at the dissolution of the relationship?

1. Contracts implied-in-fact. Court infers contractual intent from parties' conduct. 2. Contracts implied-in-law. Imposed to prevent unjust enrichment, irrespective of parties' intent.

What factors does the Uniform Marital and Divorce Act say be considered in arriving at a "just" division of marital property?

1. Contribution of each spouse to that property (including homemaking services); 2. Value of the property set apart to each spouse; 3. Duration of the marriage; 4. The economic circumstances of each spouse at the time of dissolution, including the desirability of awarding the family home to the primary custodian of the children.

What particular problems do prosecutors face in bringing batterers to justice?

1. Corroboration of battering may be difficult, as the act takes place in private. 2. Victims may not be able to testify out of fear, unwillingness or death. 3. Crawford v. Washington (U.S. 2004) restricted the admissibility or hearsay evidence when it held that out-of-court testimonial statements require witness unavailability and a prior opportunity for cross-examination.

How does a state receive jurisdiction to dissolve a marriage? -Geographic/Subject matter jurisdiction? -Personal jurisdiction?

1. Court must have subject matter jurisdiction. It must be a family court that is in the business of dissolving marriages. 2. The plaintiff must be domiciled in the forum state. 3. Personal jurisdiction over the defendant is not necessary to dissolve a marriage if the plaintiff is domiciled in the forum state, but notice to the defendant that complies with due process is required.

What is one of the ways in which the contribution (partnership) rationale for the distribution of property has worked against female parties to divorce actions?

1. Courts which exercise the contribution rationale typically refuse to award spousal support because each partner exists with the respective skills brought into or acquired during, the marriage. 2. Traditionally, homemakers' work was devalued, leading to a low estimate of stay-at-home spouses' contributions. Note that judicial and legislative reforms have increasingly addressed this problem by providing that homemaker services may be taken into account.

1. What is "covenant marriage?" 2. When did covenant marriage begin to appear? 2. What is the current trend regarding "covenant marriage?"

1. Covenant marriage permits divorce only after a two-year separation or proof of fault (adultery, commission of a felony or domestic violence, or abandonment); 2. Covenant marriage began to appear in the late 1990s, when a few states enacted "covenant marriage" acts making it more difficult for couples to obtain no-fault divorces. 3. The current trend is that several state legislatures unsuccessfully consider measures adopting covenant marriage.

What are the three main grounds that are still relevant in jurisdictions that permit fault-based divorce?

1. Cruelty 2. Adultery 3. Desertion/Abandonment

Why do most courts have difficulty characterizing professional licenses or degrees as property?

1. Degrees or licenses lack the traditional attributes of property. They can't be bought or sold. They have no exchange value. They are personal to teh holder. They terminate upon death of the holder and they are not inheritable. 2. future earning capacity is too difficult and speculative to value. 3. A degree or license is a product of only one spouse's intelligence and skills; and, 4. Valuation of degrees/licenses as property would result in indentured servitude forcing one spouse to work to pay the other.

What are the theories underpinning "grandparent visitation statutes"?

1. Derivative rights theory: Grandparent's right to visitation conditioned on the related parent's rights. 2. Family situation theory: Death or divorce disrupting the nuclear family may provide a valid reason for allowing grandparent visitation. 3. Best-interests-of-the-child standard; 4. Some statutes require a "substantial relationship" between a grandparent and child.

In the absence of an agreement reached beforehand by the spouses, what are a court's priorities regarding the parties' finances?

1. Divide the property acquired by one or both spouses 2. If the couple has minor children, award child support. 3. If it finds that doing so would be justified, award spousal support ("alimony").

What are some criticisms of the family privacy/nonintervention doctrine?

1. Does not preserve marital harmony. Because support obligations may be adjudicated only upon separation or dissolution, the doctrine encourages the parties to terminate their relationship. 2. Matters of spousal disagreements are not trivial. the doctrine leaves a more vulnerable spouse without remedy. 3. Common-law rationales for the doctrine (husband as decisionmaker, wife's disability to sue) are outdated. 4. The doctrine inappropriately gives preference to third-party rights over those of an injured spouse by permitting third-party suits but not interspousal suits. 5. Introduces needless circularity to judicial resolution of intrafamilial disputes by enabling only creditors to sue.

Name three ethical issues that come up in the representation of family law clients.

1. Dual representation (one attorney represents both spouses); 2. Representation of clients who are involved in different suits over related matters; 3. Sexual relations with clients.

What are the requirements of admissibility for battered woman's syndrome evidence?

1. Evidence must be relevant to the woman's claim of self-defense.. 2. Since BWS is scientific evidence it must meet: a. The Daubert Test in all federal courts and many state courts. This test holds that evidence may be admitted if it is helpful to the trier of fact and if the methodology is scientifically valid. b. The Frye Test in some state courts. This test permits the admission of evidence if it has become generally accepted by scientists in the relevant field of study.

Under the ALI principles what set of circumstances gives rise to a rebuttable presumption of informed consent in prenups?

1. Executed at least 30 days prior to marriage. 2. Both parties had, or were advised to obtain, counsel and had the opportunity to do so. 3. If one of teh parties did not have counsel, the agreement contained understandable information about the parties' rights and the adverse nature of their interests.

How is separate property (i.e. property that is not "marital property") treated differently in different jurisdictions?

1. In some community property jurisdictions, courts divide only the jointly-acquired marital property, and leave the separate property with their respective owners. 2. In other community property jurisdictions, statutes give courts authority to include separate property in the equitable distribution of assets. 3. Some non-community-property jurisdictions that follow equitable distribution divide both separate and jointly acquired property, arguing that this gives the court greater latitude to arrive to a fair division.

In the context of the early no-fault divorce procedure of "living separate and apart," how have different jurisdictions interpreted the requirement of "living separate and apart."

1. Extent of the separation required. -Some courts hold that spouses have lived "separate and apart" even though they live in separate bedrooms of the same house. -Other courts require that the spouses maintain separate residences, regardless of the financial cost of doing this. -Some courts add the requirement that the couple hold themselves out to the public as not living together. 2. Intent. -Some jurisdictions maintain that intention is relevant. They require that the spouses voluntarily, by mutual consent, live apart for the statutory period. In these jurisdictions, separation by necessity does not give rise to grounds for divorce. -Other jurisdictions require that if only one spouse forms an intent to dissolve the marriage, that spouse must clearly manifest this intent to the other partner.

Lawyer represents both Husband and Wife in their acquisition of a business. Lawyer then represents ONLY Husband in the couple's divorce. As Husband's attorney, Lawyer was put in a position where he would have to argue on Husband's behalf that Husband was entitled to a greater share of the business. 1. What case was this? 2. What was the result? 3. What was the reason for the result?

1. Florida Bar v. Dunagan 2. Florida Bar (upheld by FL Supreme Court) determined that Lawyer violated several rules of attorney conduct and recommended that his license be suspended. 3.Lawyer failed to show that Wife consented to the conflict of interest. It was also shown that Lawyer used personal information to the detriment of Wife, who was his former client.

1. What case historically stood as a large obstacle to arguments in favor of gay marriage that relied upon the Fourteenth Amendment right to privacy? 2. What was the holding of that case? 3. What case seemed to remove this obstacle after it was passed?

1. For many years, Bowers v. Hardwick (1986) was a significant obstacle to gay plaintiffs' Fourteenth Amendment right-to-privacy arguments in favor of gay marriage. 2. That case upheld the constitutionality of a Georgia sodomy statute applied to consensual same-sex sodomy, finding that the statute did not violate the fundamental rights of gays. Under that case, the right of privacy under the federal constitution does not protect the choice of same-sex sexual partners. 3. Lawrence v. Texas (2003) declared a state sodomy statute unconstitutional, thereby overturning Bowers.

Which doctrines would suggest that all states must recognize same-sex marriages that have taken place in other states?

1. Full Faith and Credit Claus of Article IV of the constitution; 2. The rule of "lex loci."

What are the three basic requirements for validity of a prenuptial agreement, required by most (but not all) states?

1. Full discosure. 2. Fair and reasonable. 3. Entered into voluntarily by both parties. Note that some courts do not require all of these elements. some enforce an unfair agreement, provided a party executed it voluntarily and with full disclosure.

What are the common rationales for legal regulation of incest?

1. Genetic (inbreeding results in the transmission of harmful genetic traits) 2. Religious (biblical proscriptions) 3. Sociobiological (need to encourage the formation of new families) 4. Sexual (need to eliminate intrafamilial sexual competition) 5. Psychological (prevent exploitation of vulnerable family members)

What are some purposes of VAWA?

1. Implement mandatory arrest policies for batterers. 2. Federal criminal liability upon individuals who cross state lines with the intent to injure or harass a current or former spouse or intimate partner. 3. Provision of full faith and credit for protection orders.

Father files a petition alleging that Mother is in contempt for violating a parenting agreement incorporated into dissolution judgment. Mother defends, arguing that the kids refused to visit, and that visitation would have interfered with piano lessons and sports. 1. What Case? 2. What result? 3. What did the court specifically say about Mother's defense?

1. In re Marirage of Charous (Ill. App. 2006). 2. Appellate court reversed the trial court decision denying the petition, holding that the evidence was sufficient to establish that Mother should be held in civil contempt for her failure to require the two children to visit Father. 3. The court finds that the children's refusal to visit and their preference for participating in their extracurricular activities did not excuse Mother's noncompliance.

1. What must a court do when, in a custody case, an abuser contends that the domestic violence was "mutual," and that the alleged victim provoked the abuse? 2. What are some rules that may be applied? 3. In such cases may courts order mutual orders of protection against both partners? 4. What is the criticism behind issue of mutual protective orders against both partners in cases where both allege abuse?

1. In such situations, courts must determine whether one or both spouses perpetrated the acts of domestic violence. 2. ALI Principles: Acts of self-defense do not constitute abuse. If one spouse's act is more extreme or dangerous, it may be appropriate for the court to impose limits on the primary aggressor but not on the primary victim. 3. Yes. Sometimes a court will issue mutual orders of protection against both partners. 4. Critics charge that mutual orders of protection are based on misconceptions (that the victim must have provoked the abuse), constitute gender bias, serve to blame the victim, fail to give guidance to law enforcement on how to enforce the order, and jeopardize the victim's custody rights because most states favor the nonbattering parent in custody decisionmaking.

Roger and Paul have lived together as a couple for several years until Paul's death. After Paul's death, Roger files an action against Paul's estate. 1. Roger first argues that he should be treated as a "surviving spouse" in terms of the distribution of Paul's estate. 2. Secondly, he claims that he had an express oral agreement in which he was to provide services as a "lover, companion, homemaker, traveling companion, housekeeper and cook" in exchange for Paul's promise to share their jointly-accumulated property. Will Roger's arguments be successful?

1. Inheritence claim will probably not succeed. Courts traditionally refuse to permit a member of an unmarried couple (whether same-sex or opposite-sex) to inherit an intestate share of the deceased partner's estate. Roger might be successful if he resides in one of the few modern jurisdictions in which state law recognizes same-sex marriage or domestic partnerships. 2. Contract claim. Under the traditional rule he would not succeed. Under the traditional rule, courts refuse to recognize the rights of nonmarital partners to contract with each other about property rights. A majority of courts now permit opposite-sex unmarried partners to enter into agreements, however, due to changing sexual mores. Roger would have to argue that gay and lesbian partners have the same rights as opposite sex unmarried partners (under Marvin, Gonzalez v. Green, and Lawrence v. Texas) to enter into express contracts with each other about the ownership of property acquired during their relationship. Roger's claim would be denied, even if the court recognizes same-sex partners' right to enter into contracts with each other, because provision of sexual services was a part of the consideration for Roger and Paul's agreement. Courts apply a limit to the rule that recognizes express agreements between partners: A court will not enforce such a contract if the consideration for the agreement encompasses the provision of sexual services. This limitation stems from the fact that contracts for an illegal act are void.

What is the ALI Principles' proposal for a rationale for compensation for spousal support? 1. What is it called? 2. Describe it. 3. Example?

1. It is called "loss compensation." 2. Spouse makes "compensatory spousal payments" to the other spouse to compensate for certain losses that the second spouse experienced during the marriage 3. Examples of compensable losses: -Losses attributable to child care responsibilities -Loss of a standard of living, meaning that a wife married to a significantly wealthier husband would be entitled to compensation upon dissolution for the reduced standard she would experience if the marriage were of sufficient duration that equity requires that the loss, or some portion of it, be treated as the spouses' joint responsibility.

1. What is condonation? 2. What are its elements? 3. What is the policy rationale behind it? 4. What is one of the limitations that some jurisdictions place on condonation?

1. It is the fault-based defense to divorce whereby the spouse of an adulterer resumes sexual relations with the adulterer following discovery of the adulterer's misconduct. 2. Some courts require both elements of forgiveness and sexual intercourse; others hold that either sufficies. 3. Policy rationale is to encourage reconciliation. 4. Some jurisdictions limit its application to dissolutions based on adultery.

What are the criticisms that have been leveled against the Family and Medical Leave Act?

1. It provides only unpaid leave; other countries provide for paid leave. 2. It contains a traditional definition of a parent as biological or adoptive and fails to provide adequately for nontraditional family members such as lesbian co-parents.

What are some common criticisms of the Pregnancy Discrimination Act?

1. It treats pregnancy as a "disability," rather than as a normal stage of a woman's life. 2. By requiring employers to provide the same benefits for pregnancy as for persons with other disabilities, the PDA permits employers to have no policy for pregnancy by not having a policy for disability generally. 3. PDA has been criticized for covering only discrimination arising from the pregnancy condition itself and not addressing other issues necessary to secure equality for mothers in the workplace, such as adequate childcare and breast-feeding.

Linda is an untenured elementary school teacher who receives positive evals. Untenured teachers normally are rehired for teh following year. Linda and her husband divorce. Despite the principal's recommendation that Linda be rehired, teh superintendent decides not to do so, telling the principal that the refusal is based on Linda's divorce. 1. What case was this? What year? What court? 2. What was Linda's argument? 3. What did the court decide? 4. Significance of the case?

1. Littlejohn v. Rose (6th Cir. 1985). 2. The firing was a violation of her constitutional right to privacy. 3. That the firing was a violation of her constitutional right to privacy. 4. Only time to date a federal court has held that discrimination on the basis of divorce violates the Constitution.

What are the major approaches by which courts address domestic violence in custody disputes? Which of these is the majority approach? What is the current trend?

1. Majority approach. Domestic violence considered as a factor in the application of the best interests standard. Some state legislation requires courts to consider domestic violence before awarding joint custody. 2. Current trend is toward states adopting a rebuttable presumption against an award of custody to a parent who has committed domestic violence. a. Jurisdictions differ in terms of the evidence necessary for the presumption to apply. Some states require "credible evidence," while others require a criminal conviction. b. Some of these states require that the abuse be proximate to the time of teh custody proceeding. 3. In a few states, domestic violence will not be considered unless the violence has been directed at the child. 4. Many states now provide protection for victims of domestic abuse in custody mediation.

What are two controversial law enforcement policies states have enacted to crack down on domestic violence? Why are they controversial?

1. Mandatory arrest. Over half of states require mandatory arrest for misdemeanor domestic-violence offenses. Controversial because opponents question whether it is an effective deterrent and suggest that the policy contributes to the escalation of domestic violence. 2. No-drop policies. These are policies which require the state to prosecute batterers even if the victim does not wish to pursue the matter. these policies are controversial because they arguably diminish the victim's autonomy in order to protect her (paternalistic).

What is the rationale for restriction of same-sex marriage?

1. Marriage is for the propagation of the species. 2. Marriage protects the health and welfare of children. 3. Children need two parents of the opposite sex for their well being. 4. The state has an interest in fostering and facilitating traditional notions of the family. 5. Canon law and the scriptures define marriage as a heterosexual institution.

1. What is the modern rationale for awarding support? 2. What is the practical result of the modern rationale? 3. What is the event that was influential in adopting the modern rationale for spousal support?

1. Modern rationale is self-sufficiency. 2. Practical result of modern rationale has been that that many commentators have urged that spousal support should be abolished or awarded infrequently and for short periods of time. 3. The promulgation of the UMDA was an influential event in the adoption of the modern rationale for spousal support. UMDA provides for awards of spousal support only for those spouses who do not have sufficient property to provide for their reasonable needs, are unable to support themselves through employment or have custody of very young children. Aims to provide for a divorced spouse by way of a property settlement rather than spousal support.

What were the reasons for abolishing tort causes of action for interference with the marriage relationship?

1. Modern view that marital dissolution is never solely attributable to a third party's intervention 2. The excessive nature of awards 3. The difficulty of assessing damages 4. The inappropriateness of awarding money damages as compensation for dissolution 5. The lack of deterrent effect 6. Reluctance to equate spousal affection with a property right.

What are the five major differences between how spousal support and property division are treated under the law?

1. Modifiability. Unlike awards of property, spousal support was modifiable upon proof of a subsequent substantial change of circumstances. 2. Terminability. Traditionally, spousal support, unlike payments for purposes of property settlements, was *terminable upon remarriage* of the recipient-spouse or the *death of either* spouse. 3. Enforcement by contempt power. Traditionally, spousal support, unlike awards of property, is not a dischargeable obligation if the payor-spouse declares bankruptcy. Reforms have eroded this distinction. 4. Discharge in bankruptcy. Spousal support, unlike awards of property is not a dischargeable obligation if the payor-spouse declares bankruptcy. 5. Tax consequences. Different tax consequences flow from the two awards.

What are the two traditional theories rationalizing spousal support? What ended these theories' prominence?

1. Need. At common law, husbands had a duty to support their wives, and women were economically dependent on men. Courts based awards of support on plaintiff's need, plus defendant's ability to pay. Need was based on the couple's standard of living during the marriage. 2. Fault. In a fault-based regime, only the innocent spouse is awarded spousal support. The guilty spouse is "punished" for his/her transgressions by denial of awards of spousal support (and property) These theories have been undermined by the spread of no-fault divorce and by the transformation of gender roles brought about by the women's movement.

What are some of the historical reasons why custodial parents have had limited ability to enforce interstate child support oblitations? What was the result?

1. Original state often lacked personal jurisdiction over the noncustodial parent in the noncustodial parent's new state. 2. Noncustodial parent's new state was often unable to help because there was no nexus between the noncustodial parent's state and the custodial parent; 3. Limits imposed by federalism, i.e. the fact that support orders, as continuing obligations were not enforceable under the Full Faith and Credit Clause. Result of this was that, custodial parents often had to travel to the noncustodial parent's new state and initiate new proceedings there in order to establish or enforce support orders.

A boy's mother and sister are killed in an auto accident. The father asks the maternal grandparents to care for the child temporarily, as he is a financially insecure college dropout and artist-wannabe who does not have means to care for the child. A year later the father remarries and wants the return of his son. When the grandparents refuse, the father sues for custody. What case was this, what was the result, what was the rationale, and what was the significance?

1. Painter v. Bannister (Iowa 1966). 2. Result: child shall remain with the grandparents; the court thus refuses to apply the natural parent presumption. 3. Rationale. Child's best interests will be served by remaining with the grandparents. Child would have a more secure future with the grandparents who have demonstrated an ability to provide for the child. A child psychologist testified that the child regards the grandparents as parental figures, and removal from their home would be detrimental to the child.

What four factors may enter into the judicial determination of reasonableness of a prenuptial agreement?

1. Parties' respective wealth; 2. Parties' respective ages; 3. Parties' respective intelligence, literacy and business acumen; and 4. prior family ties

Under the "premary caretaker presumption," what are some relevant factors to the determination of which parent should be accorded primary caretaker status?

1. Preparation and planning of meals 2. Bathing, groominga nd dressing the children 3. Purchasing, cleaning and caring for child's clothing 4. Medical care 5. Arrancing for children's social interactions with peers 6. Arranging alternative care 7. Putting children to bed at night and tending to children who awake during the night 8. Discipline 9. Religious, cultural or social education 10. Teaching elementary skills.

Name some things that are marital "property" but aren't tangible.

1. Professional licenses and degrees; 2. Goodwill; 3. Other enhanced earning capacity; 4. Pensions and retirement benefits; 5. Bankruptcy discharges; 6. Personal Injury Awards

What are the four approaches which states have taken to regulating attorney-client sexual relationships?

1. Prohibition of all sexual relationships between attorneys and clients; 2. Banning attorney-client sexual relations, but exempting those relationships that predate the representation (e.g. ABA Model Rules of Pro Cond); 3. Limiting the ban to domestic relations attorneys (NY is the only jurisdiction that has done this) 4. Prohibit only those attorney-client sexual relationships that adversely affect the practice of law. Some states permit tort liability and/or sanctions (criminal or sanctions for violation of state business and professions code) for such conduct.

What are the traditional rationales for the interspousal immunity doctrine?

1. Promotes marital harmony. 2. Prevents involvement of the judiciary in trivial matters. 3. Prevents the spouses from colluding to defraud insurance companies. 4. Prevents rewarding the defendant for his or her own wrong (because the plaintiff-spouse would share any recovery with the wrongdoer) 5. it is necessary because alternative remedies (such as criminal sanctions or divorce) are adequate.

Under the UMDA, what is excluded from the definition of "marital property" for purposes of equitable distribution?

1. Property acquired by gift or inheritance; 2. Property exchanged for separate property; 3. Property subject to a valid agreement of the parties.

What are two procedures by which two people may marry that differ from the traditional marriage ceremony? How do they work and what is their purpose.

1. Proxy marriages. Substitute person stands in for absent bride or groom, subject to the latter's authorization. Often used in time of war or international conflict. 2. Confidential marriages. Recognized by California. requires a ceremony but dispenses with the requirements of licenses and health certificates for an unmarried man and woman of marriageable age who live together. Marriage must be recorded, but the records are not open to public inspection except upon showing of "good cause." Purpose is to encourage legalization of the relationship without subjecting the couple to potentially embarrassing publicity.

What are two constitutional limitations to the "best interests of the child" standard of custody decisionmaking?

1. Race cannot be the determinative factor in custody decisions. 2. The constitutional right to freedom of religion restricts consideration of the role of religion in custody decisionmaking.

What is the ALI Principles' approach to licenses and degrees as marital property.

1. Refuse to treat earning capacity as divisible property. 2. Provide for "compensatory payments" to reimburse the supporting spouse for the financial contributions made to the other spouse's education or training. Note however, that the education must have been completed in less than a specified number of years (set out by state statute) before the filing of the dissolution petition.

What are the three basic approaches which courts take in determining whether same-sex sexual conduct may be considered as evidence of parental un-fitness? Which of these is the emerging trend?

1. Same-sex sexual conduct is evidence of parental fitness per se. 2. Same-sex sexual conduct leads to a presumption of adverse impact that can be rebutted by the parent's showing of absence of harm 3. Custody will be denied only if the parent's sexual orientation has or will have an adverse impact on the child (nexus test; this is the emerging trend).

1. What is a factor that might alter the degree of proof of cruelty in a fault-based divorce brought on the basis of cruelty? 2. Why did this rule develop? 3. Give an example case.

1. Some courts have required a higher degree of proof of cruelty for long-term, as opposed to short-term marriages. 2. This rule developed to avoid the financial hardships suffered by older women (denial of alimony) when a court granted a divorce based on a wife's cruelty. 3. S.C. v. A.C. (NY Sup. Ct. 2004). Wife petitions for divorce, alleging that Husband's obscenities, inappropriate sexual remarks and boorish conduct constitute cruelty. The court denied her petition reasoning that the Husband's conduct, when viewed cumulatively, did not sufficiently endanger Wife's physical or mental health.

What are the various issues associated with suing for IIED while divorcing a spouse?

1. Some courts recognize the tort when brought between spouses. In these cases, the problem isn't interspousal tort immunity doctrine. 2. When courts do recognize the inter-spouse tort of IIED, the concern is whether the IIED suit should be joined to the divorce proceedings. Some states permit joinder (majority rule), others prohibit joinder, and yet others mandate joinder. Some critics charge that joinder of IIED cases to divorce proceedings re-introduces notions of fault into the divorce process. 3. There are often statute of limitations issues (may prevent recovery for tortious acts that occurred early in the marriage; some courts solve this by holding that the tolling period commences at the end of the last incident of abuse). 4. Courts disagree as to whether an IIED claim is barred in a separate post-divorce tort action because of the res judicata effect of the divorce decree.

What are some of the different methods by which courts of different jurisdictions determine a child's preference?

1. Some have the child testify in open court. 2. some have other witnesses testify in open court considering the child's preference. 3. Some have the judge interview the child regarding the parental preference in chambers, either with or without opposing counsel present; 4. some require that a record be made of in-chamber interviews.

What are the different ways in which states consider a child's wishes in making custody determinations?

1. Some states require consideration of the child's *actual wishes,* modeled after the UMDA. 2. Some states require a consideration of teh child's preference *only after a preliminary finding taht the child has sufficient mental capacity.* 3. Some states give controlling weight to the preference of a child of a certain age. 4. some states leave the consideration of a child's preference completely to teh court's discretion.

What are the different ways in which physical separation can be used as grounds for divorce in the modern era?

1. Some states require that marital breakdown be shown by a separation for a statutorily-designated period 2. Other states require taht if marital breakdown cannot be proven by physical separation for the statutorily designated period (6-24 months), teh parties may resort to fault based grounds.

What were the two ways in which marriage affected rules of evidence at common law?

1. Spouses were not seen as competent witnesses. 2. Marital communications were seen as private and therefore privileged from revelation in the courtroom.

How do the rules of no-fault divorce differ from state to state?

1. States differ as to who can request it: -Some states permit no-fault divorce only if birth parties consent; -Some states permit "no fault" divorce so long as one party requests it. 2. How they define "no fault." -Some states define a "no fault" situation as one in which the parties have "irreconcilable differences." -Other states define a "no fault" situation as one in which the parties have been physically living apart for a statutorily-defined period of time.

What are two ways in which states that were anti-gay marriage responded to court decisions finding the right to marry?

1. States that were really anti-gay marriage passed state statutes or amended their state constitutions to define marriage as being between a man and a woman. This is what Alaska did after Brause v. Bureau of Vital Statistics (amendment). 2. States that were less anti-gay, but anti-gay enough not to like the idea of a man and woman living together as a marriage can either: 2a. Amend their state constitution to define marriage as between a man and a woman, then pass a statute guaranteeing certain rights to members of same-sex couples (survivorship, health benefits, jointly-held property benefits, legal status in case of death, victim's rights, protection from domestic violence). This is what Hawai'i did. 2b. Enact legislation recognizing "civil unions," that confer on same-sex couples the rights and benefits of traditional marriage without being called a marriage. this is what Washington did after Andersen v. King County (WA 2006). 2c. Enact legislation prohibiting gay couples from other states from availing themselves of the right to gay marriage in the state. This is what Romney did in Massachusetts after Goodridge.

State statute requires that litigants in divorce proceedings pay court fees and costs for service of process in order to bring an action for divorce. The state does this to prevent frivolous litigation, out of scarcity of funds, and to strike a balance between defendant's right to notice and plaintiff's right of access. Steve is a welfare recipient, who finds this statute objectionable. 1. What argument should Steve make? 2. What case should Steve cite? 3. What were the holding and reasoning behind the holding of that case?

1. Steve should argue that this policy violates his due process rights. 2. Boddie v. Connecticut (U.S. 1971). 3. Holding: The statutory requirement that divorce parties pay costs violated due process because the cost forecloses an indigent's right to be heard. Reasoning: -Marriage holds a high position in society's hierarchy of values. -The state has a monopoly on the means for divorce (divorce courts are the only forum available). -None of the state's asserted interests were sufficient to override the plaintiff's right to access: o No connection existed between assets and seriousness in bringing suit; o Alternatives existed to fees and cost requirements to deter frivolous litigation (penalties); and o Alternatives exist to costly personal service of process (mailing)

What are the ALI Principles' standards for premarital agreements?

1. Substantive fairness. 2. Procedural fairness, which is composed of: a. Disclosure; b. Informed consent. This

What are the different types of spousal support?

1. Temporary. By statute, either spouse may obtain temporary spousal support ("alimony pendente lite") during the pendency of the divorce proceedings. 2. Permanent. Permanent alimony was more commonly awarded during the fault-based era to homemaker spouses in long-term marriages who were free from fault. Permanent alimony is rarely awarded today. 3. Modern view: Rehabilitative alimony. Comports with the modern trend of limiting awards of spousal support. Awarded in lieu of permanent spousal support. Lasts for a limited period, as determined by the time necessary for the dependent spouse to obtain training or employment and become self-supporting. 4. Modern view: Reimbursement alimony. This is spousal support that is awarded in cases in which one spouse has supported the other through a professional program during the marriage. Recompenses the supporting spouse for her contributions (monetary and nonmonetary) to the education and training of the other. Represents a compromise by courts and legislatures between adherence to a rule denying relief and the practical difficulties of characterization/valuation of a professional degree or license as property.

What are two presumptions which courts have historically applied to aid the determination of custody disputes? Describe each of the presumptions, and explain its current status.

1. Tender years presumption: Favored an award of custody to the mother of young children. Courts have held that this presumption violates Equal Protection. 2. Primary Caretaker Presumption: Award of custody to the parent providing primary care. No state continues to follow this presumption, however, many states consider a parent's status as primary caretaker as a factor in custody decisionmaking.

At common law, to prevail in a tort action for alienation of affections, what must a plaintiff show?

1. That he had a valid marriage; 2. That defendant engaged in wrongful conduct with his spouse; 3. That a loss of consortium ensued from defendant's wrongful conduct; 4. A causal connection between defendant's conduct and plaintiff's loss.

Mother and Father divorce. Mother is granted custody of Child. Out of hatred for the father, and to deprive him of custody and Child's affections, Mother moves without notifying anyone and eludes Father for years, during which she has regaled Child with stories painting her father as an evil monster. After several years of a private investigator's inquiries, Father discovers Mother and Child's whereabouts and petitions for enforcement of his visitation rights. Child is now terrified to visit Father. 1. What, if anything can Court do to remedy Mother's interference with the change in custody? 2. What is the policy that suggests this remedy? 3. What is the constitutional argument against the remedy, and the counterargument to the constitutional argument?

1. The court might, as courts have in past cases, order the mother to make a good-faith effort to take measures necessary to restore Child's positive interaction with their father. 2. Policy suggesting such an order is that the custodial parent has a duty to foster a child's relationship with the noncustodial parent. 3. Constitutional argument against doing this is that it interferes with First Amendment rights of Mother. 4. Counterargument to the constitutional argument is that any burden on Mother's right to free expression is incidental and may be sustained as furthering the important governmental interest of promoting the best interests of the children.

When a person goes bankrupt, they are often discharged from certain financial obligations. There are some divorce-related obligations that are among those for which a bankrupt person may be discharged. 1. What is the general rule regarding those obligations which are dischargeable due to bankruptcy and those which are not? 2. What is the rule called?

1. The general rule: Obligations attributable to a property division upon divorce are dischargeable in bankruptcy. Spousal support and child support obligations are not dischargeable in bankruptcy. 2. This general rule is called "the support-property distinction."

1. What may a noncustodial parent do if s/he is denied visitation rights? 2. What are the judicial remedies which a noncustodial parent may expect when seeking to have his/her visitation rights enforced?

1. The noncustodial parent may institute proceedings to enforce the visitation rights. 2. The noncustodial parent may expect remedies which may include: civil contempt, a change of custody, and tort damages for custodial interference.

What is the significance of no-fault divorce?

1. The parties no longer need to show that their marriage breakdown was the result of marital misconduct; "irreconcilable differences" are sufficient to dissolve a marriage. 2. Courts no longer determine that there is a spouse who is responsible for the dissolution of the marriage and who must therefore be punished by means of deprivation of property or denial of spousal support. 3. Transformed rules of property distribution, spousal support, and custody.

What is the holding of Lawrence v. Texas?

1. There is a substantive due process right to the liberty to engage in intimate personal relationships. 2. Moral disapproval alone cannot justify criminal sanctions for private consensual sexual conduct.

1. What are "friendly parent" provisions? 2. What is their relationship to domestic violence?

1. These are provisions that some state custody statutes have which require courts, when determining the best interest of the child, to take into consideration which parent is more likely to maintain the child's relationship with the other parent. 2. These provisions may disadvantage battered spouses in custody determinations.

What are the differences between different no-fault jurisdictions?

1. They don't all define "no fault" the same way. -For some states, "no fault" means that "irreconcilable differences" are a sufficient ground for divorce. -For other states, "no fault" means that a marital breakdown that results in the parties living physically apart for a statutorily-defined period of time is a sufficient ground for divorce. 2. Maintenance/abolition of proof-of-fault grounds. -Some states do not require any proof of fault at all. -Other states add a no-fault ground (e.g. "incompatibility," "living separate and apart," or "marital breakdown") to their fault-based grounds. 3. Unilateral/mutual consent. -Some states permit no-fault divorce only if both parties consent. If mutual consent is lacking, then divorce is available only on fault grounds. -Many states permit a no-fault divorce if only one party desires it. -A few states require both mutual consent and a separation agreement to secure a no-fault divorce.

Explain the ethical issue of "dual representation" in the practice of divorce law. 1. In what situations is it seen? 2. What is the issue with it? 3. What are the rules which affect it?

1. To decrease costs associated with divorce, divorcing parties occasionally seek to be represented by the same lawyer. Moreover, shady lawyers on one side sometimes try to unethically (and against the ABA Rules) convince an unrepresented party on the other side that they are giving them advice when trying to convince them to act against their best interests. 2. Dual representation is regarded as unethical in many states because it presets an inherent conflict of interest. 3. A few states follow ABA Model Rule 1.7, under which dual representation is allowed only if the attorney informs the clients about the risks of dual representation and obtains each client's written consent to the dual representation.

What are some traditional rationales behind distributions of property? Modern rationale?

1. Traditional Rationales: a. Fault. Most longstanding principle of property distribution. Court divides property so as to punish the spouse who caused the marital breakup. Traditionally, innocent spouses received property and spousal support upon divorce. b. Need. Court divides property based on spouse's need for support. A nonworking, dependent wife is in "need" of property and spousal support. Ignores the duration of the marriage. c. Status. Court divides property based on the status that the parties enjoyed during the marriage. A determination based on status also rejects the duration of the marriage as a factor. 2. Modern Rationale: Contribution/Partnership model. Takes into account the contributions of both spouses. Court divides property on the view that marriage is an economic partnership. Spousal earnings as well as assets acquired with those earnings, belong to the partnership and are subject to division upon divorce.

What are the different rationales which are used to divide marital property and award spousal support.

1. Traditional rationale was fault; 2. The contribution approach is replacing the traditional rationale for property division; 3. Modern rationales of self-sufficiency and loss compensation are replacing the traditional rationale for alimony.

1. What is the modern trend regarding judicial discretion in the award of child support? 2. Reason for the trend? 3. What began the trend

1. Trend has been away from judicial discretion. From vague statutes granting considerable judicial discretion to more specific standards. 2. Reason for the trend was that there were criticisms regarding arbitrariness, inadequate awards, and lack of uniformity. 3. UMDA.

What are the ways in which a marriage involving an underage party may be annulled?

1. Upon the initiative of the under-age party. If the party fails to disaffirm, however, the marriage is validated when that party reaches th age of consent. 2. Some states permit annulment actions to be brought by the parent of the minor. However, absent statutory authority, a parent cannot initiate annulment proceedings for nonage or lack of consent.

What are the two most common issues that arise in cases in which a party claims that pensions and retirement benefits should be characterized as marital property?

1. Whether pension benefits should be characterized as marital property, and 2. What the appropriate method of valuing pensions is.

What two things does DOMA do?

1. creates a federal definition of marriage as a union between a man and a woman (i.e., for purposes of federal law regarding immigration, government benefits, etc.) 2. Leaves to state decision whether to recognize same-sex marriages (i.e., not an outright prohibition).

Some courts apply a different standard to annulment by fraud cases after the marriage has been consummated. 1. What is this test? 2. How does it compare to the test that would be applied had the marriage not been consummated? 3. What is the original policy reason behind this shift in the test applied?

1. the test is that the fraud go to the "essentials" of the marriage if the marriage has been consummated. 2. The test is more strict than the "materiality" or "but for" test that would otherwise be applied. 3. The original policy behind applying a more strict test in the cases of post-consummation marriages is the fear that invalidation would work a hardship on the woman because she is no longer a virgin and is thereby "tainted goods."

What three-year period saw the beginning of the no-fault revolution, and what happened during that period?

1968. California initiates the first no-fault divorce statute. 1970. UMDA was promulgated, offering another approach to no-fault divorce. These ended up being the statutes off of which most states based their no-fault divorce regimes.

When did the laws requiring a woman to take the same domicile as her husband change?

1971. Restatement (Second) of COnflict of laws permitted a "special circumstances" exception to teh assignment to women of the husband's domicile and permitted a separate domicile for a wife who was living apart from her husband. 1974. Samuel v. University of Pittsburgh (WD Pa. 1974). Declared unconstitutional as a denial of equal protection to married women, university residence rules that required a wife to take her husband's domicile. 1988. Restatement (Second) of Conflict of Laws. Permits unmarried and married women, as well as men, to acquire a domicile of choice.

How have federal retirement statutes developed to deal with states' recognition of pensions as marital property and conflict of such recognition with federal law?

1974. ERISA (Employee Retirement Income Security Act). In an effort to prevent federal employees from raiding their pensions prior to retirement, it limited the rights of the nonemployee spouse to share in the employee's pension upon divorce in several cases. Federal and State courts split on whether anti-alienation rule bars distribution of pension benefits to a nonemployee spouse pursuant to a divorce. 1984. Retirement Equity Act. Mandated that the ERISA anti-alienation rule must yield to certain state domestic relations decrees.

When and where did the movement toward joint custody begin?

1979 in California.

What is/was a major driving force behind the movement to adopt equitable distribution as the principle by which property is divided in divorce law? What was its rationale?

A major driving force was the Women's Movement. Feminists argued that the common law system failed to reflect and recompense women's contributions to marriage.

Wife retains Ms. Zimmerman to represent her in a divorce proceeding. Husband retains Ms. Zimmerman's husband, Mr. Zimmerman. The two Zimmermans negotiate a settlement for custody and alimony. At the request of Wife, Ms. Zimmerman's law firm files a motion to disqualify Mr. Zimmerman, alleging a conflict of interest based on his marriage. Likely result?

A court would likely find that disqualification is improper because there is no evidence of actual impropriety on the part of either attorney. Courts are likely to reject the idea of a per se appearance of impropriety or a conflict of interest based solely on the marital status of opposing counsel.

What is a defense for the tort action of alienation of affections?

A defendant may defend by showing consent on the part of the plaintiff (NOT plaintiff's SPOUSE WHO HE STOLE)

I am a battered spouse. I have called the cops many times as my husband was attacking me to ask for help, but they always just tell me to just chill out and stop taking life so seriously. I've even seen cop cars drive by without their lights on as I'm on the phone with the cops, so it's not like they don't have free assets. The beatings have increased in intensity and duration to the point where I've been hospitalized. Can I do anything to assert my rights against the police department?

A few courts have recognized a federal civil rights cause of action against law enforcement and/or municipalities for the failure to protect battered women, based on 42 U.S.C. 1983. 42 U.S.C. 1983 imposes liability on government officials for deprivation of a constitutional right (e.g., due process or equal protection) under color of law. Generally, no right to police protection exits for private acts of violence. A cause of action arises out of police failure to provide protection against private violence only if either: 1. the state discriminates in providing protection to the public in violation of the Equal Protection Clause or 2. the state has a "special relationship" to an individual such that the state has an affirmative duty to act.

On what legal doctrine do some courts requiring ex-spouses to provide child support for former step-children base their decision required? Explain the rationale for applying the doctrine and its results.

A few courts impose post-divorce stepparent liability by meansof *equitable estoppel* doctrine. Under this doctrine, a stepparent is estopped, on the basis of that stepparent's conduct (e.g., the stepparent's repersentations of the child as his for a long period of time), from denying the obligation to support a stepchild upon termination of the stepparent's marriage.

Under what conditions may a state recognize a polygamous marriage conducted in another country where such marriages are legal?

A jurisdiction might recognize a polygamous marriage in cases deciding legitimacy of children or in inheritance cases.

What is the legal force behind a separation agreement? What may be done to augment the separation's legal force?

A separation agreement has legal force merely as a contract. It may take judicial force through merger or incorporation into a judicial decree.

A trial court grants both natural parents of a child joint custody over the child. Since the separation, the father has begun cohabitation with another man. The trial court imposed visitation restrictions that prohibited the father from having his companion stay overnight during visitation, engaging in public displays of affection in the children's presence, leaving the children in his companion's care, and discussing sexuality issues with the children. The father appeals. What case was this, what result, and what significance?

A.O.V. v. J.R.V (Va. App. 2007) The result was that the appellate court affirmed the visitation restrictions, stating that although Lawrence "cast serious doubts upon the constitutionality" of state law as it applies to private conduct between consenting adults, "the central holdings" of the court's custody precedents nevertheless remain the same. The significance was that this case shows that Courts might follow this model in finding that, though Lawrence held that state law cannot impinge upon a privacy right to engage in same-sex sexual conduct, restrictions on same-sex sexual conduct as conditions to custody or visitation may be upheld in the face of Lawrence challenges.

Where does the ALI Principles stand on consideration of extramarital sexual conduct or the sexual orientation of a parent in selecting the custodial parent?

ALI Principles prohibits a court from considering eithe r extramarital sexual conduct or sexual orientation of a parent except upon a showing that such conduct causes harm to the child.

What does the ALI Principles say regarding the role of family members' religion in making child custody determinations?

ALI Principles prohibits a court from considering the religious practices of either a parent or child in custody decisionmaking except in the followign situations: 1. Religious practices present 'severe and almost certain harm" to the child (in which case a court may limit the religious practices only to teh minimum degree necessary to protect the child), or 2. Necessary to protect the child's ability to practice a religion that has been a significant part of the child's life.

What do the ALI Principles say regarding the role of race in making child custody determinations?

ALI Principles prohibits courts from considering the race or ethnicity of the child, parent or any other member of the household in determining custody.

What measure has the ALI Principles taken which has increased the rights of gay ex-partners after dissolution of a relationship in which the partners raised a child?

ALI Principles recognizes a category of "de facto" parents. Same-sex partners who have assumed a parental role vis a vis a child before the partners separate often bring claims of de facto parenthood (often phrased "psychological parent" status)

How does the ALI Principles deal with cohabitants' rights upon dissolution?

ALI uses a status-based approach, rather than a contractual approach. If cohabitants (whether same-sex or opposite-sex) satisfy the ALI requirements, they will be treated similarly to spouses at dissolution of the relationship in terms of property division and support payments. ALI requirements: Parties who live together with their common child for a statutorily-designated period of time (2 years suggested) are deemed domestic partners. Childless cohabitants are presumed to be domestic partners if they share a common household for a statutorily-designated period of time (3 years suggested). Childless cohabitants who reside together for less than the statutory period may qualify (based on a rebuttable presumption) if one partner shows that they shared a common household and life together for "a significant period of time."

What is the minimum constitutionally-permissible standard of proof for establishing paternity? What case establishes this?

Preponderance of the evidence standard is sufficient. Rivera v. Minnich (U.S. 1987)

Mother is Catholic. She has two children from a previous marriage when she marries Husband, who is Jewish. They have a daughter. Shortly after the child's birth, the mother converts back to Catholicism. At divorce, the court awards custody to the mother and awards the mother to raise the child as a Jew. Mother appeals. What case? What result? What holding?

Abbo v. Briskin (Fla. App. 1995). Appeals court reverses. Appeals court determines that because of First Amendment concerns, a court may not make a decision favoring a specific religion over the objection of the other parent.

What is the majority rule for recovery of engagement gifts for engagements that do not result in marriage? What are they based on?

According to the majority rule, if a ring is given in contemplation of marriage, the party who breaks the engagement without justification is not entitled to either the return or retention of the ring. -Conditional gift. The giver's gift is condition upon the recipient's performance of the act of getting married. If the condition is not fulfilled, then the giver may recover the gift. -Fraud. If the recipient of the gift had no intention of marrying the giver, the gift is recoverable under equitable principles. -Unjust enrichment. Under this theory, the recipient received a benefit under circumstances such that it would be inequitable for the recipient to retain the benefit without payment. Recipient must disgorge the benefit by making restitution to the giver of the ring or its value.

Mother and Father have Baby. When Baby is three, Father dies. Mother always had a rough relationship with Paternal Grandparents. She put up with their visiting Baby when Father was alive, but now that he's dead, she doesn't want them visiting anymore. What may Paternal Grandparents do?

All states have visitation statutes permitting third parties (such as grandparents) to petition for visitation in certain circumstances.

What are the advantages of mediation as a process of establishing a child custody arrangement?

Advantages are that it is less expensive and less hostile than the adversarial process, gives the parties an active role in decisionmaking, results in increased satisfaction by the parties with the dissolution process, is less likely to result in relitigation has better long-term consequences for parents and children

Carl, an American, is a manager of a London bank. Evelyn, a U.K. citizen is his receptionist. Evelyn agrees to marry Carl. Carl asks Evelyn to sign a prenup limiting Evelyn's rights to Carl's property upon divorce. The agreement lists Carl's gross annual income as $2.3 million. Attached to the agreement is a schedule listing Carl's assets and liabilities, most valued individually, at a net worth of $6.5M. Four years later, the two divorce. Evelyn challenges the validity of the prenup, arguing 1. that the disclosures of Carl's net worth in the agreement were inaccurate or incomplete. 2. That the disparity in financial knowledge between her and Carl, a banker, made the agreement unconsionable. What result?

Agreement will likely be upheld. It looks like Evelyn received fair and reasonable disclosure, sufficient to ensure that she made an intelligent waiver of her rights. Her financial inexperience has no bearing on whether Carl made a fair and reasonable disclosure of his financial circumstances.

Two ways in which marital status does not matter as much in tort law as it did during the common law era.

Alienation of affections. Most jurisdictions have abolished tort actions for alienation of affections (tort actions against a third party for interfering in the marital relationship). Interspousal immunity doctrine. Jurisdictions have abolished the common-law doctrine of interspousal immunity that barred tort action between husbands and wives.

What is "testimonial" hearsay under Crawford?

All you have to remember for the exam is that "testimonial" means "made for the purpose of prosecution," and maybe that: 1. Davis v. Washington (2006) found that statements made to 911 operators are not testimonial and are therefore admissible because elicited to resolve an emergency, and 2. Hammon v. Indiana found that a victim's statement to a responding cop violates the right to confrontation (absent cross-examination), because the officer was investigating a possible crime. If you need illustration, read below: • Crawford majority expressly declined a precise definition to "testimonial" • Ex parte in court testimony • Affidavits • Custodial Examinations • Prior testimony that was not cross examined • Pretrial statements reasonably expect to be used prosecutorially • Extrajudicial statements in formalized testimonial materials • Confessions • Depositions • Statement where circumstances lead objective witness to reasonably believe would be avail to use at trial • Testimonial evidence via Govt. Officers • Interrogation in response to structured police questioning • Involvement of government officers in production of testimony with eye toward trial.

What is the family privacy doctrine?

Also known as nonintervention doctrine, it is the doctrine under which courts are reluctant to interfere in an ongoing marriage. It is also the reason why courts today are unlikely to enforce a spousal duty of support.

What is the general rule regarding changes in the circumstances of a payor of child support, and whether the change in circumstances may justify a reduction in the support obligation.

An involuntary change in circumstances, resulting from events beyond a person's control, such as the loss of employment or illness, may justify a reduction in support obligation. Voluntary changes in circumstances generally do not justify a reduction in the support obligation.

It's 1982. Former unmarried partner sues her ex in state court claiming that he breached his promise to provide her with support for life in return for her promise to live with him and provide him with services. Because diversity of citizenship exists, Defendant removes the case to federal court. What likely result?

Anastasi v. Anastasi (D. NJ 1982, identical situation). District court would likely remand to state court, based on the domestic relations exception to federal jurisdiction. The court also questioned whether palimony cases were more closely analogous to contract actions (more appropriate for federal jurisdiction), or to spousal property claims (more appropriate for resolution based on state law). Because these cases require judicial investigation into the support needs of the parties and thereby implicate an important state interest, they are more appropriate for resolution by state, rather than federal, courts.

Luis and Cristobal apply for a marriage license but are denied for lack of capacity due to same sex. Their state's statute does not mention sex as a qualifying/disqualifying factor in marriage, however. Soon afterward, their state legislature restricts marriage to a man and a woman. L&C file suit, alleging that hte new statute is unconstitutional. What result?

Assuming the court decides like the Alaska Superior Court in Brause v. Bureau of Vital Statistics (AK Super. Ct. 1998), it would hold that the statute violates plaintiffs' right to privacy under the state constitution. This would require the state to amend the constitution to prohibit gay marriage, which is what actually happened.

Anna and Dick apply for, and are issued, a marriage license. They participate in a marriage ceremony, at which the minister signs their marriage license. They live together for a month after their ceremony. Anna contends that they married because of Dick's concern with his family members' belief that he would go to hell because of his sinful relationship. She claims Dick proposed a fake ceremony and represented that the marriage would not be valid. After the ceremony, Anna burns the license, allegedly with the knowledge and consent of Dick. When Dick files for divorce, Anna denies the existence of the marriage based on a failure to comply with the requisite formalities. What result?

Anna's argument will not succeed. Failure to comply with the procedural formalities (here, filing the license), will not invalidate the marriage. Courts generally interpret compliance with the procedural formalities as a directory, ministerial act rather than as a mandatory requirement (absent a state statute that expressly provides that the issuance of a marriage license is a mandatory requirement for a valid marriage).

What is the largest change in the legal rights and obligations of marriage since the common law era?

At common law, a husband had a duty to support his wife, and the wife had a correlative duty to render services. Modern statutes make the duty of support gender neutral. Due to the modern *family privacy doctrine* (nonintervention doctrine), under which courts are reluctant to interfere in an ongoing marriage, courts today are unlikely to enforce a spousal duty of support.

Describe the "common law" marital property regime.

At common law, all property belonged to the spouse who acquired it. This included any property derived from that property (rents, profits, etc.). Upon divorce, a court awarded property to the spouse who had title (this was called the "title system," now abolished in several jurisdictions) Common result would be that a homemaker had no right to share in the property acquired by her income-earning husband after divorce.

Under common law, who was primarily liable for the support of the children? Under the modern trend, who is primarily liable for teh support of the children?

Common law. Father was primarily liable for the support of his children. Modern trend. Both parents considered responsible for the support of their children.

How has the law changed regarding liability of step-parents for child support of their ex-spouse's blood children?

Common law. Stepparent had no legal duty to support a stepchild. Some modern statutes and case law have imposed liability for child support on step-parents.

How did courts avoid the doctrine of nonintervention (family privacy doctrine) in enforcing a husband's duty to provide his wife or children with support during the common law era?

At common law, courts permitted indirect enforcement of the husband's duty of support by allowing third parties such as creditors to sue the husband to enforce his duty to provide a wive or children with necessaries.

What is the guiding principle in adjudicating disputes over what should be the last name of the child?

Best-interests-of-the-child standard.

Husband appeals from a judgment denying his petition for an annulment, claiming that he would not have married Wife but for her representations related to the son's paternity. Husband admits that during their two-year courtship, he fell in love with Wife. Prior to the marriage, the couple had a daughter. Husband had questions about the son's paternity prior to the marriage but married her anyway and subsequently adopted both children. Assuming that the appeals court applies the "materiality" test, what result?

Appeals court would affirm, finding in the circumstances of the marriage (H admits that he fell in love with W, that he doubted one kid's paternity but married and adopted the kid anyway, that they had a child together before the marriage) evidence supporting the trial court's determination that H would have married W regardless of the son's paternity. Husband's testimony tehrefore failed to establish that he relied upon teh representations regarding the son's paternity in deciding wehterh to marry Wife, only that it played a part in his decision to begin a relationship with her.

Husband and Wife spend the day in town drinking. That evening the snow is 2-3 feet deep. On the way home Wife passes out. Husband allows Wife to lie outside unconscious all night, knowing that she is not warmly dressed, even though she was within easy distance of the house and even though he had a hired man who lived with them who could help carry her inside. The next morning, they bring her inside, barely conscious, after which husband makes no effort to secure medical care for her. She dies. Husband is convicted of manslaughter. He appeals, saying that there's no bystander liability/duty. Result?

Appeals court would likely affirm the conviction for manslaughter and find that Husband's drunkenness does not excuse him from the discharge of his duty to his spouse.

During his seven year marriage with Wife, Husband frequently beats her. In the midst of one argument, Wife stabs Husband to death with a pair of scissors. At trial, she claims self-defense stemming from her fear that he was going to kill her. To establish the requisite state of mind for self-defense, Wife calls in an expert witness to testify about the battered woman's syndrome. Trial court rules the evidence inadmissible. She appeals. What result?

Appellate court would likely reverse Wife's conviction and remand for determination of the scientific validity of the BWS evidence. 1. Evidence must be relevant to the woman's claim of self-defense. BWS testimony is indeed relevant to support Wife's testimony that she honestly believed she was in imminent danger of death. 2. However, since BWS is scientific evidence it must meet: a. The Daubert Test in all federal courts and many state courts. This test holds that evidence may be admitted if it is helpful to the trier of fact and if the methodology is scientifically valid. b. The Frye Test in some state courts. This test permits the admission of evidence if it has become generally accepted by scientists in the relevant field of study. This second half is for a lower court to decide. Remanded.

What criminal law is employed in response to accusations of wife beating?

Assault and/or battery.

Jane and Jill apply for a marriage license. Their state permits couples to marry if certain requires are met (consent, venereal disease and age). Even though the state statute says nothing about the gender of the partners, the State Department of Health, which issues the marriage licenses, denies the licenses, interpreting the statute to imply an opposite-sex relationship. The couple claims that this interpretation of the statute violates their state constitution's guarantees to privacy and equal protection.

Assuming that the court hearing this case is in agreement with the Hawaii Supreme Court in Baehr v. Lewin and Baehr v. Miike, it would find that: 1. Jane and Jill are not protected by the privacy guarantee of the state constitution, as that constitution does not establish that the right to marry is a fundamental right for same-sex couples, as the right to same-sex marriage is not "so rooted in traditions and collective conscience...that failure to recognize it would violate fundamental principles of liberty and justice...or implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed." 2. Strict scrutiny should be applied to the ban, as the ban implicates the state constitution's Equal Protection Clause that (unlike its federal counterpart) explicitly bars sex-based discrimination.

What rights has the Supreme Court recognized the extended family as possessing? What absolute limits has the USSC set on the extended family's constitutional protections?

Constitutional right to family privacy. Right to live together as a family. The USSC has found that the Constitution does not require a state to provide certain governmental benefits to assist members of extended families to maintain residence together.

How did the doctrine of interspousal immunity in tort reach its current status of nonrecognition?

At first, some courts tried to mitigate the harshness of the doctrine by providing for exceptions for premarital torts, or for suits by a party who was divorced at teh time of the suit. This was not very significant in its effect, though. The Married Women's Property Acts in the mid-to late nineteenth century liberalized the rule to permit a wife to sue a husband for torts concerning her property. After these acts were passed, case law and statutory law gradually abolished the common-law rule and permitted recovery, first, for negligent torts and subsequently for intentional torts.

Ex-husband/Father has a support order requiring him to pay 15% of his income every year into a trust to be used for the support of his child, of whom his ex-wife has custody. Three weeks after the Child's 11th birthday, and after Ex-husband/Father has been paying child support for seven years, Ex-husband/Father dies. His wife asks the state to continue the payments, but his estate refuses. She sues the estate. What result?

At least according to the traditional view, the obligationto support a child terminates at the obligor's death unless a written agreement binds the obligor's estate.

Is discrimination on the basis of divorce constitutional?

At least one court has decided that it is an unconstitutional violation of one's fundamental right to privacy regarding one's marital status to discriminate against her/him based on her/his marital status.

First case in which gay plaintiffs had some success in having a right to marry recognized under a state constitution.

Baehr v. Lewin (HI 1993)

What are the grounds for a void (versus voidable) marriage?

Bigamy and incest.

Husband, Wife and two unrelated men are arrested on federal charges for importing heroin. Husband is indicted. the indictment also names Wife as an unindicted co-conspirator. Wife agrees to testify against Husband under a grant of immunity and a promise of lenient treatment. Husband asserts a defense of marital privilege to prevent Wife from testifying against him. What result? And what is the reason behind the policy that necessitates the result?

Based on Trammel v. U.S. (U.S. 1980, identical situation), the Court would find that Wife can refuse to testify adversely, but if she chooses to give adverse testimony, however, she may do so. The Supreme Court reasoned that this modification of the spousal disqualification rule furthers the interest in marital harmony without unduly impeding legitimate law enforcement objectives.

Mike seeks a divorce from Edith, alleging cruelty and desertion. He contends that Edith called him names, refused to have children, threatened him with a knife, threw hot water on him, tried to hit him with a chair and removed his bedroom furniture. She testifies that Michael was physically violent, resulting in his arrest on numerous occasions for assault and battery. In a fault-based divorce jurisdiction, how might the court respond to such a tale of two cruel spouses?

Based on recrimination doctrine, the court might deny the divorce, as both spouses seem to be equally at fault.

Bob and Jane divorced. The trial court awarded them joint physical custody of their only child. The child's primary residence is with Jane. The child lives with Bob one weekend every month. Bob sues for more time with his child, arguing that he is not being given true joint physical custody since the child spends the vast majority of her time with Jane. What result?

Bob will lose. Neither joint custody nor joint physical custody mean equal time with each parent.

Define "separation agreement."

Contract entered into by divorcing spouses concirning the division of property, the support rights of a spouse and children, and sometimes child custody as well.

Dennis marries Francine. They live in NJ for ten years until Francine decides to leave Denis and take the kids with her to California. One day when Dennis is visiting CA to see his kids, he is served with a copy of the divorce petition. He moves to quash service of process for lack of jurisdiction, due to lack of minimum contacts with California. What case is this? What result?

Burnham v. Superior Court (U.S. 1990). USSC held that the assertion of jurisdiction for divorce purposes over nonresident defendants who are physically present in the state is not a violation of due process.

Most common defense for antinepotism policies when confronted with disparate impact litigation based on Title VII of the Civil Rights Act.

Business necessity defense.

What are some common business rationales in support of antinepotism policies, and what is the conflicts-of-interest rationale?

Business rationales. Employment of married persons in the workplace leads to: 1. Increasing incidence of quarrels at work; 2. favoritism; 3. scheduling conflicts (e.g. vacations, holidays); and 4. dual absenteeism. Conflicts of interest. In cases of judicial and public attorneys' offices, the rationale for antinepotism policies usually includes avoidance of actual or potential conflicts of interest or the appearance of impropriety.

What is one method by which a great many states have adopted equitable distribution as the method by which marital property is dissolved in divorce?

By adopting the Uniform Marital and Divorce Act.

In states which do not have their own state civil rights statutes, what is the most common method by which plaintiffs challenge antinepotism policies?

By arguing that such policies violate public policy.

A state statute requires employers to provide 4 months maternity leave and a qualified right to reinstatement (unless business necessity renders the employee's former job not available). Bank policy permits employees to take unpaid leaves for pregnancy, but does not mandate employee reinstatement. Receptionist wants to return to work after her maternity leave, but the bank tells her that her job has been filled and that no similar positions are available. She charges the bank with a violation of state statute. Employer defends on the ground that state statute is invalid because it is preempted by Title VII, which, based on the amendments made by the Pregnancy Discrimination Act says that pregnancy is to be treated the same as all other disabilities for employment purposes.

Cal Fed v. Guerra (U.S. 1987). USSC held that such a California statute was not invalid due to preemption by Title VII, because it was not inconsistent with teh purposes of Title VII. Congress intended the Pregnancy Discrimination Act to be a "floor" below which maternity benefits could not drop and not a "ceiling." A state can provide more expansive benefits if it wishes.

Single mother sues her employer, alleging that the employer terminated her employment in violation of the Family and Medical Leave Act after she took time off work in order to care for her three-year-old son who suffered from a serious ear infection. Mother's son required constant care for more than three days and required two post-operative doctor visits. Result?

Caldwell v. Holland of Texas, Inc. (8th Cir. 2000). In that case, trial court granted the employer's motion of summary judgment, holding that Caldwell's son did not have a "serious health condition" under the FMLA. 8th Circuit reversed, holding that Caldwell presented sufficient evidence to raise a question of fact as to whether her son's ear infection incapacitated him for more than three days and whether he received subsequent treatment for his condition.

Example of a state statute that shows distaste for prenups that preclude the possibility of spousal support.

California Family Code provides taht a provision in a prenup regarding spousal support is not enforceable if the party against whom the enforcement is sought was not represented by independent counsel or if the provision was unconscionable at the time of enforcement.

What is the California approach to no-fault divorce?

California permits divorce on the ground of "irreconcilable differences, which have caused the irremediable breakdown of the marriage."

Ben marries Carole in a marriage ceremony. Carole believes her marriage with Ben is valid. However, the marriage is invalid because Ben never obtained a divorce from Alice, his former spouse. Carole has relied on her status as Ben's spouse in many areas of her life. What result?

Carole may be recognized as a putative spouse.

Wife and Husband divorce after a 20-year marriage. Each receives half of the marital property. Husband's share gives him title to all real property, including the family home, even though they were joint tenants during the marriage. Husband is ordered to pay Wife $29,000 in two installments. To secure the award, the court orders a lien imposed against Husband's real property until such time as the total is paid in full. Husband makes no payments. Instead, he files for bankruptcy claiming all his real property as exempt. In addition, he seeks to nullify the lien as encumbering his exemption. Wife argues that the federal bankruptcy law cannot divest her of her property interest. The bankruptcy court agrees, saying that the lien should not be nullified because it protects Wife's preexisting interest. Case? Decision? Holding?

Case: Farrey v. Sanderfoot (U.S. 1991). Decision: -Bankruptcy law permits a debtor to avoid only those liens that fix on a pre-existing interest of the *debtor* in property. -The debtor can avoid the lien if: o He possesses a particular property interest, and o The lien is fixed *subsequently* on that *same* property interest. (note he had a new interest in the home at teh time of the decree, so the lien didn't attach to a pre-existing interest in the home.) Holding: Federal bankruptcy law does not permit a debtor, upon divorce, to avoid a lien and thus defeat the other spouse's property interest.

Linda and Anthony, both white people, divorce. Linda is awarded custody of their three-year-old daughter. Linda remarries a black man. Trial court finds that due to the social stigma accompanying an interracial marriage, the child's best interests will be served by awarding the father custody. Linda appeals What case? / What holding?

Case: Palmore v. Sidoti (U.S. 1984). Holding: An award of custody vased on race violates the Equal Protection Clause. Race may be a factor in custody decisionmaking, but may not be the determinative factor. The effects of racial prejudice cannot justify a racial classification that divests custody from a natural mother who has not been found to be unfit.

Name an enhanced earning capacity which could arguably be marital property other than licences and degrees.

Celebrity. A spouse may have sacrificed and worked to allow the other spouse to gain income-enhancing celebrity status.

Name some circumstances which may affect a parent's *ability* (though not necessarily his *obligation*) to pay support obligation.

Certain circumstances which affect a family member's needs and/or a spouse's ability to pay: o Voluntary change in payor's occupation; o Payor's remarriage and resulting increased family respinsibilities; o Payor's increased resources; o Payor's deteriorating health; o Payee's remarriage or cohabitation

What are ways in which Orthodox Jewish women who have been denied Gets by their husbands whom they've wished to divorce have challenged such denials? What have the defenses been by husbands who wish to continue withholding the grant?

Challenges: -Tort -Contract Defenses: -Judicial mandating of a grant of the Get violates the Free Exercise Clause, i.e. his right to practice or not practice his religion) -Establishment Clause prohibits government entanglement in religion.

How has the status of children changed since before the 1960s?

Children are no longer valued only for their economic contributions. Childhood is now seen as a prolonged period of economic and social dependency. Children now have legally-enforceable rights, including the right to a (limited) voice in decisionmaking affecting them, such as custody decisions.

Carl is a millionaire. He proposes to Evelyn. Before marrying, Carl requests that Evelyn sign a prenup in which he discloses that he has "an interest in a farm in California, a large tract of land in Montana, and a share in a major league baseball club." For eight years Carl and Evelyn live within their means. At the age of 40, Carl has a midlife crisis and leaves Evelyn for a younger woman. He starts living a flashier lifestyle. He files for divorce. Evelyn, wanting her share of this wealth that she's seeing Carl starting to display, argues that the prenup failed to constitute full disclosure. What likely result?

Court is likely to uphold the agreement as fully disclosing Carl's assets. Detailed disclosure is not required for disclosure to be full.

From what influences did the "community property" marital property regime derive?

Civil Law from Spanish and French influences; in Wisconsin it is a result of that state's adoption of the Uniform Marital Property Act

John begins a relationship with Patty in 1996, at a time when he is still married to his first wife. the couple has a son, buys a house together and places title in both their names as joint tenants. John also owns another home. John and Patty never live together full-time, but John stays with Patty and their son 2-4 nights per week, keeps clothes there and eats meals there. John divorces his wife but never marries Patty. Nevertheless, he holds himself out as her husband during some of their 25-year relationship. When Patty and John separate, she claims that John promised to support her for the rest of her life. They both live in a state in which nonmarital property disposition agreements are valid, so long as they are express. She moves for summary judgment. What is John's likely defense, and what is the likely outcome?

Cochran v. Cochran (Cal. App. 2001) John's likely defense is that the two never cohabited together, and that cohabitation is a requirement in jurisdictions in which nonmarital property disposition agreements are valid, so long as they are express. The court held that a triable issue of fact exists as to whether the couple cohabited, due to the part-time living arrangement between Patty and John, and that summary judgment was therefore precluded. Note that other courts have found that such periodic home visits, even between longtime lovers, do not satisfy the cohabitation requirement of such jurisdictions.

Describe the principal criticism over the adversary process to establishing child custody arrangements.

Commentators criticize the adversary process for its hostility, accentuation of differences, high rates of relitigation, and long-term negative psychological effects for the participants.

What is the current legal status of the "primary caretaker" presumption in the determination of child custody decisions?

Commentators have lent such a presumption considerable support. Nonetehless, for a long time only two states (WV and MN) followed the presumption. They both have since rejected it. Many states continue to consider primary caretaker status as a relevant factor, although they no longer treat it as a presumption.

What is the role of confidentiality int he mediation process?

Confidentiality is a central part of the mediation process. A controversisal issue concerns whether teh mediator can bake a recommendation to the court if the parties' attempts at mediation prove unsuccessful. This situation would be both: 1. A breach of confidentiality; 2. A potential violation of due process if the mediator is not subject to cross-examination.

How have judicial attitudes changed regarding separation agreements?

Courts used to regard separation agreements with suspicion, since they were seen as encouraging divorce. Today, courts favor separation agreements because they reduce the expense, delay and animosity associated with litigation.

Wife requires daily medication to control epilepsy and diabetes. Husband and Wife are Pentacostals. After a religious meeting, Wife believes that she is healed and resolves to discontinue medication. When she suffers ensuing seizures, Husband fails to summon aid. He is indicted for criminally negligent homicide. Husband appeals. Likely result?

Court is likely to hold that because Wife, a competent adult, made a rational decision and exercised her free will to refuse medical assistance, Husband is not criminally liable. A spouse does not incur liability for failure to provide medical care if the omission is in good faith and at the request of a competent spouse.

Two days before their wedding, Carl presents Evelyn with a prenup containing a disclosure clause and tells her that he won't marry her if she doesn't sign it. She signs it. The two marry. Four years later they divorce. Evelyn challenges the prenup as unconscionable and entered into under duress, and therefore entered into involuntarily. What result?

Court likely to find that the agreement was not procedurally unfair. -Carl didn't do anything to prevent Evelyn from consulting an attorney or from asking questions prior to signing the agreement. -Evelyn understood the purpose of the agreement when she signed it and was aware of Carl's financial situation at the time. -The agreement contained a full disclosure clause, thereby creating a rebuttable presumption of full disclosure.

What are the UMDA's provisions regarding the payment of child support?

Court may order either or both parent(s) to pay child support, without regard to marital fault, after considering all relevant factors. Relevant factors include: -Financial resources of the child, of the custodial parent, and of the noncustodial parent; -Family's pre-divorce standard of living; and -Physical and emotional condition of the child and his educational needs.

Hypo: Carl is married but is having an affair with Evelyn. He gets Evelyn pregnant. He promises her that if she gets an abortion, he'll give her $75K and will divorce his wife to marry her. She gets the abortion. He doesn't marry her. Evelyn sues for emotional distress, battery, fraud and misrepresentation. What result?

Court should reject her claims. Each claim is based on the now-abolished (in most states) cause of action of breach of promise to marry.

A U.S. citizen and an undocumented alien from mexico live together for two years, during which time they have a son. They request an application for a marriage license from the county registrar. Although the undocumented alien presents his birth certificate, Mexican passport and documents from an immigration proceeding, he is denied an application, according to local policy, because he lacks either a "green card" or a foreign passport with a visa. The couple files a civil rights suit under 1983, alleging that the registrar violated their rights to equal protection and due process. What result?

Court should rule that the policy, requiring an alien seeking to marry a U.S. citizen to produce certain forms of identification, violates the parties' fundamental right to marry because, based on strict scrutiny, the policy significantly interferes with the right to marry by placing a direct legal obstacle in their path.

Lena and Bruce obtain a marriage license in California. Bruce misrepresents that he is divorced from a prior spouse. Lena and Bruce have a marriage ceremony in California and travel to AZ. In AZ, they live together and represent that they are husband and wife. When they relocate to VA, they drive through two common law states (TX and OK) and stop there overnight. Lena subsequently seeks a divorce. Bruce challenges teh validity of the marriage?

Court would be likely to hold that the parties did not establish a common-law marriage under either OK or TX law that would be recognized in VA because of their brief overnight stays in common law states during the cross-country relocation trip.

Husband and Wife die in the crash of an airplane that was owned and operated by Husband. Executor of Wife's estate brings a wrongful death action against Husband's estate, alleging that Wife's death was caused by Husband's negligence. Husband's executor defends by asserting that the interspousal immunity doctrine bars recovery. What likely result?

Court would be likely to ignore the interspousal immunity doctrine, as denial of access to the courts would not further marital harmony, and since insurance companies and the justice system can guard against the possibility of fraud.

When Jerry divorces Patty, the Nebraska decree orders the parties to refrain from remarrying for 6 months. Three months later Jerry marries Sharon in Iowa, knowing that Nebraska had a waiting period. Sharon and Jerry promptly return to Nebraska, where they live for 4 years. Later they move to MO and live there for 12 years. Sharon petitions for divorce and a property settlement in MO. Jerry challenges jurisdiction, arguing that he is not validly married because at teh time of his marriage to Sharon he was still married to his former wife, Patty. Result?

Court would be likely to rule that, under traditional conflict-of-laws principles, the validity of marriage is determined by looking to the law of the state where the marriage was celebrated (in this case, Iowa). However, the Missouri court determines that because the parties are domiciled in Missouri, Missouri law should apply. Based on MO law, Defendant's marriage is valid because defendant failed to rebut the presumption of validity of the most recent marriage.

Plaintiff and Defendant live together for 20 years. They have two children. They file joint tax returns. When the relationship ends, the woman seeks $250K in damages, based on domestic duties and business services rendered. Second, plaintiff claims that she and defendant entered into a partnership agreement whereby she agreed to perform domestic and business services, and in return, Defendant agreed to support and maintain her. Defendant moves to dismiss. This is in a jurisdiction recognizing, upon dissolution, unmarried couples' contractual arrangements regarding disposition of property accrued during the relationship, provided that the agreement be express. What result?

Court would dismiss the case upon the defendant's motion. 1. Plaintiff failed to show an express contract, as she performed the services voluntarily without consideration. 2. An implied contract cannot be implied from the "partnership agreement." 3. In jurisdictions which recognize only those unmarried couples' contractual arrangements regarding disposition of property accrued during the relationship which are expressly stated, these contracts are enforceable only if they are based on lawful consideration.

What standard generally must be met for courts to grant modifications of spousal support or child support?

Courts usually apply a standard of substantial and material change of circumstances

What has been the trend regarding admission of evidence of battered woman's syndrome in wife beating cases?

Courts were initially reluctant to admit such evidence, but the trend is to liberalize rules and permit admission of such evidence.

Sheri is a disabled child. The state removes her from her home because of abuse and neglect. Not wanting to see her stuck in the foster system, Sheri's aunt and uncle take her in as a foster child. They apply for the stipend that foster parents receive to assist with groceries, clothing, etc., but are denied based on a state rule that family members are ineligible for these payments. The aunt and uncle are now worried that they will not be able to provide financially for Sheri's medical care and challenge the state policy of excluding relatives from foster care payments as a violation of equal protection.

Court would hold that the state policy is constitutional based on rational basis review. the state promotes the legitimate state purpose of maximizing foster care resources. The court would not hold the policy to strict scrutiny, since close relatives are not a suspect class for equal protection analysis (Lyng v. Castillo (U.S. 1986)). the policy does not impinge on the exercise of the plaintiff's fundamental constitutional right to live with extended family members. This case is different from Moore: just because there is a negative right to freedom from government interference does not mean that there is an affirmative right on the part of foster kids to be placed by the state with relatives.

In a fault-based divorce jurisdiction, Husband seeks, and is granted, a divorce on the ground of adultery. Wife defaults. Wife seeks to set aside the default and defend, alleging that she never committed adultery and only agreed to give plaintiff a divorce because he promised that if she did so, she could have custody of their child. How might the court respond?

Court would likely grant Wife's motion to set aside the default for the policy reason that courts desire to prevent collusion.

Evelyn discovers she's pregnant. She tells Carl about her pregnancy. Carl agrees to marry Evelyn. One week before the wedding, Carl conditions his agreement to marry her on the condition that she sign a prenup. Evelyn and Carl try to make their relationship work, but they ultimately divorce. During the divorce, Evelyn argues that the prenup was involuntary, as her pregnancy put her under great pressure to marry. What result?

Court would likely not find that the pressure to marry was serious enough to divest the wife of her free will and judgment. This is especially true, considering the fact that she was presented with the agreement a whole week before the wedding and had time to obtain the advice of counsel.

Based solely on their cohabitation relationship, can cohabiting families claim the rights that members of traditional families claim based on their family membership?

Courts are divided about permitting cohabitants the same legal rights as traditional family members.

Are courts generally more or less willing to interfere in a dispute between the parties to an intact marriage? What doctrine governs this and what are the policy rationales for it?

Courts are reluctant to interfere in an ongoing marriage to settle disputes between the parties due to the doctrine of nonintervention / family privacy doctrine. Policy rationales for nonintervention/family privacy doctrine: 1. Preserve marital harmony; 2. Judicial reluctance to adjudicate trivial matters; 3. Adherence to the view that the husband, as head of the family, should determine family expenditures; 4. Wife's common-law disability from suing her husband.

If a spouse discovers an affair long after the affair ceased, can he still bring an action for criminal conversation?

Courts disagree on this point, particularly on when the limitations period starts to toll.

For invocation of the eponymous child custody presumption, what constitutes a child of "tender years?"

Courts have disagreed on this. Various courts have held that a child of "tender years" is one who: -Is preschool-age or younger; -Children five or younger; -Children ten or younger; -Some courts have found even children older than ten to constitute children of "tender years."

What control does a court have over visitation rights? How common is it for courts to deny visitation altogether?

Courts have discretion to define the scope, time, place and circumstances of visitation. Courts deny visitation rights reluctantly.

When may courts refuse to enforce custody agreements? How common is this?

Courts may occasionally refuse to adjudicate custody disputes if a court finds that the parties' prior written custody agreement is unenforceable or if the decree is silent regarding which parent is authorized to act in certain contexts.

In cases of domestic violence, what measures may courts take to limit visitation?

Courts occasionally will order supervised visitation. The supervision may be conducted by a visitation service or by a private individual. Restrictions may encompass extensive or minimal supervision. Visitation may be held either at, or away from, a program center.

Case which requires that laws and practices discriminating on the basis of gender must meet the intermediate scrutiny test.

Craig v. Boren (1976)

How are defenses to the tort of criminal conversation limited?

Criminal conversation was considered a strict liability offense because the defendant could not defend by showing that the plaintiff's wife consented nor that the spouses were living apart?

Distinctions between the tort causes of action of criminal conversation and alienation of affections.

Criminal conversation: Requires evidence of sexual intercourse between the defendant and the plaintiff's spouse (a claim for alienation of affections may be brought without the need for proof of such conduct). In a criminal conversation case, there is no need to show loss of affection, the law presumes it.

What is currently the common *method* (versus *regime*) of property distribution in most jurisdictions today? What is its objective?

Currently, the common method of property distribution is that of "equitable distribution." The objective of the equitable distribution system is to order a fair distribution, under all the circumstances, of the spouses' property.

What is the standard for modifying a child custody decree?

Custody modification generalllyr equires proof of a material or substantial change in circumstances.

For what were damages awarded when a defendant was found to have engaged in criminal conversation?

Damages were awarded for the plaintiff's humiliation, loss of reputation and loss of consortium.

Daniel and Louise are married while he is hospitalized with an inoperable brain tumor. The clerk issues a marriage license but Daniel never signs the application or appears before the clerk. At the ceremony, Daniel is unable to respond. A third party acknowledges the marriage vows for Daniel. When Daniel dies 4 days later, Louise files a petition for letters of administration alleging her status as Daniel's wife. She contends that she married Daniel by proxy. Daniel's children from a prior marriage argue that the proxy marriage was invalid. Result?

Daniel's children's argument will likely succeed. Even if the state legislature authorizes marriage by proxy, this ceremony does not satisfy the necessary requirements. There was no evidence of a written proxy authorizing a representative to obtain the license and acknowledge the vows. This case is not analogous to proxy marriage during wartime. Instead it raises the possibility that others might take advantage of the infirm.

What is "recrimination?" What is the policy rationale behind it.

Definition: It is the doctrine that bars divorce in cases in which both spouses are at fault (and both therefore have grounds for divorce). Policy Rationale: -Clean hands doctrine (plaintiff shouldn't obtain an equitable remedy if he has acted unethically or has acted in bad faith with respect to the subject of the complaint) -divorce should be permitted only for an innocent spouse -preservation of marriage, and -the need to provide economic protection to women by denying divorce in order to force husbands to support wives.

Evelyn and Carl have been living together for several years. On Evelyn's birthday, Carl asks her to marry him. Evelyn accepts. Thre months later, after a big fight, Carl breaks off the engagement. Can Evelyn recover from Carl for breach of promise to marry?

Depends on the jurisdiction. A few jurisdictions still allow this cause of action.

Are personal injury awards separate property or marital property?

Depends on the nature of the assets they are intended to replace. -Many courts hold that the portion of the award representing compensation for noneconomic losses (pain, suffering, disability) represents the separate property of the injured spouse. -The portion of an award representing compensation for economic loss during the marriage (past wages, medical expenses that diminish the marital estate) is marital property. -Considerable authority suggests that personal injury awards designed to compensate for lost future earnings are divisible property. -A majority of states classify disability benefits received after separation as separate property.

What must a grandparent petitioning for visitation rights prove to be granted visitation?

Depends on the state. -Majority rule. Grandparents must show that grandparent visitation is in the best interests of the child. -Some jurisdictions have required that a lack of visitation would result in harm or potential harm before a grandparent may be awarded visitation.

What are common criticisms of the "best interests of the child" standard in determining child custody?

Despite widespread adoption of the "best interests of the child" standard, commentators criticize this standard as highly discretionary and imprecise.

In what situations do persons typically suddenly claim to have been in a common law marriage?

Dissolution of the relationship or on death wehn teh survivor attempts to claim inheritance or health insurance benefits, worker's comp or Social Security Survivor benefits.

What is one limitation of recrimination doctrine?

Doctrine of comparitive rectitude. This is where courts determine the degrees of marital fault and award the divorce to the party who was least at fault. Developed to mitigate the harshness of recrimination doctrine.

What is the putative spouse doctrine?

Doctrine which protects a spouse who, in good faith, relies on the validity of an invalid marriage.

What is the divisible divorce doctrine, and what is the rationale behind it?

Doctrine: It is the doctrine which says that a court in an ex parte divorce has jurisdiction *only over the marital status* of the parties. The court can render a divorce decree, but *may not determine the support and property rights of the absent spouse.* Rationale: This is because the court does not have personal jurisdiction over the spouse not before it.

Bob and Tom live together as domestic partners for nine years. After their relationship ends, Bob sues Tom to stop Tom's harassment. Tom counterclaims on the theory of breach of contract and promissory estoppel, arguing that the parties had an oral agreement to equally share property acquired during their cohabitation. Tom states that he agreed to provide homemaking services while Bob worked as consideration for the property-sharing agreement. The trial court dismisses Tom's claims, finding that the alleged contract arose out of a "meretricious relationship" and is thus invalid. Tom appeals. Applying Marvin and reversing, how would an appeals court decide?

Doe v. Burkland (RI 2002). The RI Supreme Court reversed, finding that a meretricious relationship does not preclude contracts between parties. Tom may shos adequate consideration not depending on the meretricious relationship. The equitable doctrine of unjust enrichment may also apply.

Husband and Wife divorce shortly before Husband's death. Husband dies intestate, but without having altered the designation of his wife as beneficiary of his life insurance and pension. His children from a previous marriage sue his second wife, claiming entitlement to the life insurance proceeds and pension benefits. A state statute provides for automatic revocation at divorce of any designation of a spouse as a beneficiary in a nonprobate asset. The state statute, favoring the children as recipients of the nonprobate assets, conflicts with ERISA, which directs payments according to the plan (favoring the spouse). What case? What does the USSC hold?

Egelhoff v. Egelhoff (U.S. 2001). USSC held that the state automatic revocation statute was preempted, as it applied to ERISA benefit plans and that payments should thus be made to teh wife.

Under the Uniform Premarital Agreements Act (UPAA), what is required to find an antenuptial agreement unenforceable?

Either: 1. A party executed the agreement involuntarily; or To be involuntary, the party must not have been provided "fair and reasonable disclosure," not waived the right to disclosure, and not have had access to adequate knowledge of the other's property. 2. The agreement is unconscionable, meaning more than just unfair. To be unconscionable, the agreement must have been unconscionable at the time of execution, and

For a prenup to be valid, must the parties have consulted an attorney? What is the rationale for the majority rule?

In general, no. Some states specify that the parties must have an opportunity t consult counsel, but these states do not require that the parties actually do so. The rationale for the majority rule is that requiring representation would be paternalistic and an interference with contractual freedom.

At the time Husband and Wife got married, Wife was beginning her opera singing career (earning $2K a year). During the 17-yr marriage, she became highly successful ($600K a year). Husband served as Wife's voice coach and photographer. He claims that he sacrificed his own career to help her and raise the two children, and that her celebrity status therefore constitutes marital property subject to equitable distribution. What case was this? What result?

Elkus v. Elkus. Court held that celebrity status is marital property subject to equitable distribution to the extent that the appreciation in Wife's career is attributable to the husband's efforts and contributions.

Can a woman be prohibited from working in certain types of employment that might present occupational exposure to health risks for the fetus?

Employer's safety concerns about offspring do not establish female sterility as a bona fide occupational qualification because offspring are neither customers nor third parties whose safety is essential to the employer. The employer may not discriminate because of a woman's childbearing potential unless actual pregnancy impedes her ability to perform her job. Conception decisions and decisions regarding child welfare should be left to parents. An employer will not incur tort liability if it informs employee of risk. Int'l Union, UAW v. Johnson Controls (U.S. 1991).

Describe the common law marital communications privilege.

Enabled a defendant to assert a privilege to prevent his or her spouse from testifying as to any confidential communications between husband and wife. Adverse spousal testimony is a broad term that includes (among other types of testimony): confidential marital communications (made in the presence of only the other spouse) and also communications made to the spouse in the presence of third parties.

What have been the trends regarding pro se divorces?

Entrepreneurs have developed books and kits to help couples go pro se and thus avoid the expense of attorneys' fees. Bar associations in some jurisdictions have sought to limit spouses' use of such products by enforcing unauthorized practice provisions.

Constitutional provision violated by sex discrimination

Equal Protection

How has the separation of morality from the law been reflected in family law?

Equal treatment of male and female adultery. Decreased stigma associated with nonmarital children. No-fault divorce signifies the increasing acceptance of the end of the marital relationship. Fault-based notions no longer play a significant role in determining support, property or custody. The law is conferring increased rights on same-sex couples. Terminology is also changing: "Dissolution" has replaced "divorce." "Spousal support" and "maintenance" has replaced "alimony." "Nonmarital children" has replaced "illegitimate" or "out-of-wedlock" children. "Unmarried couples" has replaced "persons living in sin" or persons involved in "meretricious" relationships.

What put an end to the common-law doctrine of coverture?

Equity principles were exercised to mitigate the harsh cover rules somewhat. The Married Women's Property Acts, enacted during the mid- and late nineteenth century largely eliminated these disabilities.

Name the two major provisions of the First Amendment which concern religion. How does each affect parents post-divorce?

Establishment clause. Court may not favor one parent's religion or religious observance over another parent's religion or non-observance. Free-exercise clause. Court may not interfere with a parent's right to practice religion.

Evelyn is a probation officer for the state Department of Corrections. She falls in love with Carl, one of her clients who is serving a sentence for armed robbery. The two plan to marry. When Evelyn's supervisor learns of her romantic relationship, he tells her that she must either give up her relationship with Carl or her job, pursuant to a departmental regulation that forbids probation officers from becoming socially involved with their clients in or out of jail. When Evelyn refuses to stop seeing Carl, she is fired. She brings action, alleging that the departmental regulation forbidding employees from seeing clients violates her due process right to marry. What result?

Evelyn will not succeed. The departmental regualtion did not violate Evelyn's due process right because it did not forbid Evelyn from marrying in general or from marrying Carl. It merely made it more costly for her to marry Carl--the cost being her job. The regulation burdened her right to marry but did not impermissibly preclude her from marrying.

Describe summary dissolution and the majority rule concerning it.

Evelyn's divorce. Some states, like California, permit dissolutions without hearings in cases of short marriages (less than five years), for couples with no minor children and no real property, who have agreed to the disposition of marital property and who waive claims for support. Only a minority of jurisdictions provide for summary dissolutions.

In the modern era, is there any role for fault as a rationale for distribution of marital property? Example case to support your answer?

Fault still plays some role, albeit a very limited one, in states' equitable distribution schemes. this occurs, for example, if the fault includes adulatery, cruelty or waste of marital assets? some commentators and legislators are urging an increased role of fault in determining parties' financial rights and responsibilities. Congdon v. Congdon (Va. Ct. App. 2003): Wife had an affair during her marriage and Husband engaged in long-standing verbal abuse. A VA statute prevents awarding spousal support to a spouse due to her adultery, unless the denial of support would be a manifest injustice based on both parties' relative degrees of fault and a disparity in their economic circumstances. Court determined that the exception applies, as Husband's long history of profane behavior outweighed Wife's adultery and the parties' economic circumstances were clearly disparate, given Husband's high-paying job with a family company and Wife's minimal employment.

What effect can filing a bankruptcy petition have on a divorce proceeding in which property is being divided?

Federal bankruptcy law provides that the filing of a bankruptcy petition will halt state proceedings (except for paternity actions, and the establishment/modification of spousal support orders. This means tension between federal and state interests. This tension is somewhat mitigated by the fact that bankruptcy courts can terminate, modify, annul or condition a stay "for cause."

The three legal trends reflected in Family law.

Federalization, Constitutionalization and uniformity of state law. Federalization. An increasing congressional role in family policy. Constitutionalization. The growing recognition of teh constitutional dimensions of teh regulation if intimate relationships.

Who has criticized custodial parental relocation restrictions, and why?

Feminists have criticized relocation restrictions, as they disproportionately effect women (who generally have custody) and the ensuing interference with women's constitutional right to travel. Courts are split on this issue however, with some courts holding that conditioning a parent's primary custody on remaining in the locale of the noncustodial parent violates the former's right to gravel, and others holding that the child's best interests trump the parent's constitutional right to travel.

Explain how the amount of time a divorce petitioner has spent in state might affect her ability to file for divorce in that state. Also, what is the "magic number" as far as amount of time in state?

For a court to have subject matter jurisdiction over the divorce, generally the petitioner must be domiciled in the state. Sometimes this domiciliary requirement is replaced with a durational residency requirement. Sometimes a durational residency requirement is imposed in addition to the domiciliary requirement. Durational residency requirements may pose a barrier to a divorce petitioner who has recently moved to a state. Durational residency requirements vary from six weeks to a year.

Name three grounds for annulment.

Fraud, duress and minority

Michelle divorces John after an 11-year marriage. They have no children. At the time of the dissolution, Michelle is 32 and works as a bank teller. John is an assistant manager of a grocery store. He makes $2000 per month; she makes $1000 per months. The trial court determines Michelle's needs as $1,550 per month, divides the couple's ($27K worth of) property and awards Michelle spousal support of $350/month until her remarriage or death. John appeals. What case was this? What decision? What holding?

Gales v. Gales (Minn. 1996). Decision. State supreme court reversed, finding that the award of permanent support was inappropriate based on the facts that Wife pursued her career, was young at the time of the dissolution, and the marriage was not long-term. Holding. An award of permanent alimony should be an exceptional situation and is only appropriate in a long-term traditional marriage with an older dependent spouse who has little likelihood achieving self-sufficiency.

Two male NY residents enter into a relationship. During the relationship, Defendant gives Plaintiff expensive gifts, including cars and a ski house. The couple goes to MA to marry, then returns to NY. MA law permits members of same-sex couples to marry only if they are both MA residents; at least one of these guys is a NY resident. The couple separates and executes a separation agreement that provides for division of their property, and that provides a one-time payment to Plaintiff of $780K. Following a NY court's decision to uphold the constitutionality of that state ban on same-sex marriage, Defendant seeks a declaration that because the parties never legally married under NY law, the separation agreement was void and all property transferred thereunder must be returned to him. The court finds the marriage invalid under the laws of either NY or MA, but refuses to rescind the separation agreement What case; what rationale?

Gonzalez v. Green (NY Sup. Ct. 2006, identical facts). The court explained that NY has long recognized the enforceability of express contracts between unmarried cohabitants provided that illegal consideration is not part of the agreement.

How do habeas corpus writs relate to the enforcement of child custody orders?

Habeas corpus writs may be used to enforce custody orders. Habeas writs are increasingly used in custody cases to compel the production of a child who is being wrongfully held or retained. Petitioner must prove both the validity of the custody order and the person who is entitled to custody under that order.

Name some "other" fault-based grounds for divorce.

Habitual drunkenness or drug addiction; Incurable impotence; Failure to Support; Criminal conviction and/or imprisonment; Insanity

A mother's ex husband admits sexual abuse of his 11-year-old stepdaughter that occurred 6 years earlier. The court orders unsupervised visits with their four-year-old daughter. after a visit, the child complains that her father has inappropriately touched her. A subsequent medical examination determines that abuse is a possibility. The court allows unsupervised visits to continue and even orders overnight visitations. The mother requested review of the court's order granting overnight visitation. What case? What result?

Hanke v. Hankd (Md. Ct. Spec. App. 1992). The appellate court reversed, holding that when a parent is justified in believing sexual abuse has occurred, the parent is not required to submit the child for visitation without stringent safeguards. The trial judge should have provided a specific place for the supervised visitation that would have protected the child and should have required supervisors that were satisfactory to both parties.

Bob fails to support his child. May he be denied custody? May he be denied visitation?

He may be denied custody. Failure to support a child may not result in infringement of the parent's visitation rights, however.

To what level of scrutiny do courts subject state restrictions on the right to marry?

Strict scrutiny, which is the highest level of protection is applied to those classifications that *directly* and *substantially* interfere with the right to marry will be reviewed under the strict scrutiny test. Zablocki v. Redhail

What were the historic reasons for seeking an annulment, and what are the current reasons?

Historic reasons: Prior to no-fault divorce, divorce was difficult to obtain. Current reasons: Religious reasons. Jurisdictional reasons: avoid longer residency requirements for divorce or to reinstate a benefit that was lost upon marriage.

A kindergarten teacher arranges to breastfeed her baby during lunch period. Her husband brings the baby to her and she nurses in a private room. After three months the principal notifies her that she is violating a directive against employees bringing children onto school property, intended to avoid disruption of teachers' duties and harm to their children. The teacher arranges for her child to be fed formula during the day. The baby develops an allergy to the formula and refuses to take a bottle. The teacher requests permission to resume breastfeeding during off-duty time off campus. The school board refuses, based on a rule prohibiting teachers from leaving school premises during the work day. The teacher is compelled to take unpaid leave. She sues the school board alleging that its policy violated her constitutional right to breastfeed.

If following Dike v. school Board (5th Cir. 1981), the court would hold that a woman has a protected liberty interest in breastfeeding. The Constitution protects excessive interference with that interest. the question therefore becomes whether the school board's asserted interests are sufficiently important and narrowly tailored to justify the policy.

After being married 19 years, James files for divorce against Elisabeth. During the divorce proceedings, James puts a tap on the home telephone. The device records conversations between Elisabeth and third parties without the consent of any party to the conversations. When Elisabeth discovers the device, she files a complaint for damages in federal district court alleging that James violated the federal wiretapping statute. Result?

If following Glazner v. Glazner (identical facts, 11th cir. 2003), the court would have to find that the federal wiretap law contains no exception for interspousal wiretapping within the marital home. Note that after the wiretapping statute was passed, a new rule was passed specifically abolishing interspousal wiretapping. The 11th Circuit in Glazner found that it applied retroactively. Many states have also enacted wiretapping statutes similar to the federal law, and which refuse to recognize an interspousal exception to a state wiretap law.

Allen married his younger sister Patricia. The couple has three children. After the couple abandons their disabled child, state officials terminate their parental rights based on their incestuous parenthood and then charge them for criminal liability for incest. The husband petitions for a writ of habeas corpus, arguing that the state incest statute is unconstitutional because it criminalizes a sexual relationship between consenting adults in violation of Lawrence v. Texas. Result?

If like the 7th Circuit in Murth v. Frank (7th Cir. 2005), the Court would refuse to read Lawrence so broadly as to create a fudnamental right to engage in all forms of private sexual intimacy, as Lawrence had a limited focus on same-sex sodomy and failed to apply strict scrutiny review.

Scott engaged in incest with his 18-year old daughter. He was convicted for incest. He challenges his conviction based on Lawrence v. Texas. Result?

If like the California Court of Appeals, the Court would uphold the conviction, reasoning that the state's incest prohibition furthered a rational bas by protecting vulnerable family members from being coerced into sexual relationships with each other and by guarding against inbreeding.

Wife brings a post-divorce action against Husband for IIED, alleging that he physically and mentally abused her during and after their marriage. Husband claims that Wife failed to allege facts giving rise to an action for IIED and further that the statute of limitations has run on the alleged misconduct. Likely result?

If like the IL Supreme Court in Feltmeier v. Feltmeier (Ill. 2003), the court would 1. find that interspousal torts for IIED are actionable for physical and mental abuse by a spouse. 2. The "continuing tort rule" whereby the statutory period starts tolling as of the last tortious event in a pattern of tortious behavior.

A son's father dies intestate. The deceased father was married to a postoperative transwoman. The son petitions for letters of administration naming himself as sole heir and claiming that his father's marriage was void because his stepmother was genetically male. What result?

If like the Kansas Supreme Court in In re Estate of Gardiner, the Court would hold that a post-op male-to-female transgendered person is not a woman within the meaning of the statutes recognizing marriage, and that the marriage was void as against public policy.

Plaintiff and defendant are married by a priest in a Catholic ceremony, though they fail to obtain a marriage license. They live together for 25 years and raise four children. When Wife petitions for divorce, Husband alleges that the marriage is void for noncompliance with the statutory licensure requirement? What result?

If the court is like that in Carabetta v. Carabetta (Conn 1980), the court would hold that, in the absence of a statute invalidating an unlicensed marriage, a ceremonial marriage contracted without a marriage license is not void on public policy grounds.

Luis and Cristobal are denied a marriage license by town clerks on the ground that the State Department of Public Health's policy (not based on a verbatim reading of marriage statutes) is not to recognize same-sex marriage. Luis and Cristobal file an action for a declaratory judgment, alleging that the Department of Public Health's policy violates the state constitution. The state counters that the common-law definition of marriage and the legislature's intent not to permit licensing of same-sex unions permits the State Department of Public Health's interpretation of the statute. What result?

If like the Massachusetts Supreme Court in Goodridge v. Dept. of Public health (2003), the hearing court would hold: 1. That the marriage licensing statute cannot be interpreted to permit same-sex couples to obtain marriage licenses (because of the common-law definition of marriage and legislative intent not to permit licensing of same-sex unions). 2. That the restriction on marriage to opposite sexes lacks a rational basis and violates equal protection under the state constitution.

An employee is frequently absent from work because of her baby's illnesses. After giving the employee written warnings, the employer discharges her for excessive absenteeism. The employee applies for unemployment compensation, but is denied for having been discharged for "misconduct." She appeals the determination that she was discharged for "misconduct" by arguing that she could not find affordable child care compatible with her work schedule. What result?

If like the Minnesota appeals court in McCourtney v. Imprimis Technology (MN Ct. App. 1991), the court would hold that the employee is entitled to unemployment benefits. Her inability to find child care does not constitute "misconduct" within the meaning of the statute in light of her good-faith efforts to remedy the problem.

Evelyn is a transwoman. She had gender reassignment surgery prior to marrying Carl. They remain married for two years, then divorce. After the divorce, Evelyn files a complaint for spousal support. Carl defends, alleging that the marriage is void because Evelyn is genetically male. What result?

If like the NJ Superior Court in MT v. JT (NJ Super. Ct., App. Div. 1976), the court would hold that the marriage was valid because Evelyn's anatomical change made her a female at the time of the marriage ceremony.

Father and Mother have joint custody of Daughter following their California divorce. Mother and Daughter move to New Mexico, where Daughter, at the age of 15, expresses her desire to marry her 48-year-old piano teacher. NM law does not permit under age marriages, so the couple and Mother go to NV, where they obtain judicial authorization with Mother's consent. Father, who was not notified of the judicial proceeding, petitions to vacate the order authorizing the marriage and to annul the marriage. Result?

If like the NV Supreme Court in Kirkpatrick v. District Court, it would hold that a statute allowing judicial authorization of a marriage of an under-age person does not violate the substantive or procedural due process rights of a nonconsenting parent and that the father lacked standing to annul the marriage. The court would reason that a parent's constitutional right to raise his child as he sees fit is not absolute and must be weighed against the child's fundamental right to marry.

Carl is a fundamentalist Mormon. He is legally married to Evelyn. Subsequently, ha participates in a religious marriage ceremony with two other women, one of whom is Eduarda, Evelyn's 16-year-old sister. Carl is convicted of bigamy and sexual contact with a minor. He challenges the constitutionality of the bigamy statute and alleges that his conduct is protected as a fundamental liberty interest based on Lawrence v. Texas. What result?

If like the Utah Supreme Court in State v. Holm (Utah 2006), the court will uphold the constitutionality of teh bigamy statute, saying that it does not violate Carl's right to freedom of association, is not unconstitutionally vague as applied, and that the prohibition against sexual contact with a minor does not violate equal protection by distinguishing between married and unmarried persons. The Holm court distinguished Lawrence by saying that 1. the case implicated the institution of marriage (rather than mere private consensual conduct) because the state has an interest in preventing the formation of marital forms it deems harmful, and 2. the case involved a minor, and sexual conduct involving minors is outside the scope of Lawrence.

A hospital seeks to impose liability on a patient's wife when the patient fails to pay for medical services. Wife's defense is that the statute's imposition of joint liability on spouses for marital debts violates equal protection because it fails to impose liability on similarly situated members of civil unions. What result?

If like the court in Bristol Hosp. v. Smith, the court would extend liability to members of civil unions.

Woody and Mia adopt a daughter, Soon Yi. When Soon Yi is 22, Mia and Woody divorce, though they separated several years prior to that time. Shortly after the divorce, Soon Yi gives birth to Woody's child. Soon Yi and Woody now seek to marry. Soon Yi wants to vacate her adoption by Woody so that she can marry him. Under state law, adoption may be vacated upon a showing of "truly exceptional circumstances" when it is in the best interest of the child and adoptive parents. What result?

If like the court in In re Adoption of M (NJ Super Ct. Ch. Div. 1998), the court would determine that the facts constitute truly exceptional circumstances in order to eradicate the legal impediment to Soon Yi's marriage to Woody and to legitimize the infant.

A native of India dies intestate in California. When his estate is probated, two Indian residence each allege that they are entitled to share his estate as his lawful widows according to Indian law that permits plural marriage. What result?

If like the court in In re Dalip Singh Bir's Estate (Cal App. 1948; didn't read), the court would hold that the wives may share equally because no public policy is violated when neither wife contests the other's claim. further, they are the only interested parties and the purpose is inheritance.

Marvin and Tammy are brother and sister related by adoption. Marvin's father married Tammy's mother when Marvin was 18 and Tammy was 13. They decide that they are in erotic love with each other and that they desire to marry. They live in a state, however, where there is an express statutory prohibition on marriages between a brother and sister wehther "by the half or the whole blood or by adoption." Marvin and Tammy challenge the statute in court. What result?

If like the court in Israel v. Allen (Colo. 1978), the court would hold that the provision is unconstitutional as having no rational basis (it fails to further any state interest in family harmony). Note, however, that the Uniform Marriage and Divorce act prohibits marriage between a brother and sister of the whole blood or who are related by adoption.

Over a 33-year marriage, Wife cooks, cleans and performs household chores. Despite his substantial wealth, Husband fails to provide wife with clothes, furniture, household necessities (e.g., indoor bathroom, kitchen sink or working furnace) or entertainment. Wife brings an action against Husband to recover support. It's 1953. What result?

If like the court in McGuire v. McGuire (Neb. 1953), the court would deny the wife recovery. Because the parties are not separated, the court would not intervene to order spousal support. For public policy reasons, a married couple's disputes are not a matter for judicial resolution.

In general, is the age of consent for marriage going up or down in the U.S.?

In general, the age of consent is going up by statute in many states. As an example, in response to the case of In re Marriage of J.M.H. and Rouse, in which a 15-year-old girl was found competent to consent to a common law marriage entered into without parental consent, the Colorado legislature raised the minimum age for common-law marriage to 18 or 16 with parental and judicial approval.

18 year old Raoul wants to marry 15-year-old Maria, who is pregnant with his child. Under the laws of the state, males between 16 and 18 and females between 14 and 18 must obtain parental consent. Maria's mother, a widow, refuses consent, allegedly because she wants to continue receiving WIC. Maria and Raoul institute a class action on behalf of all under-age persons who wish to marry but cannot because they cannot get parental consent for a marriage license. They charge that the statutory provision is an unconstitutional deprivation of their liberty under the Due Process Clause. Plaintiffs contend that the statute is arbitrary, denies them the opportunity to make an individualized showing of maturity and denies them the only means to legitimize their child. What result?

If like the court in Moe v. Dinkins, the court would uphold the constitutionality of the parental consent requirement. Though prior cases recognize the constitutionally protected right of privacy, the state's interest in the protection of minors dictates use of a rational basis standard. The court would find that the statute is rationally related to the state's interests in protecting minors from immature decision-making and unstable marriages, and supporting the parent's right to act in the child's best interests. Moreover, the statute results not in total deprivation of plaintiffs' rights, but only a delay.

Wife admits to husband that she just ended a long-term extramarital affair. Husband verbally forgives her infidelity and the parties attempt to reconcile. Husband has a hard time truly forgiving Wife, though, and leaves, announcing to his wife that he's going to move in with a waitress from the bar that he's been frequenting since he learned of the infidelity, and with whom he has been hooking up. Wife petitions for divorce based on abandonment as well as on cruel and inhuman treatment, claiming that Husband left the marital home and engaged in adultery (which constitutes "cruel and inhuman treatment" under NY law). Husband responds by asserting: 1. that his departure was justified because Wife admitted her long-term extramarital affair and, 2. his adultery could not constitute cruel and inhuman treatment because it followed on the heels of Wife's revelations. Wife then asserts the defense of condonation, claiming that Husband forgave her infidelity and that the parties attempted to reconcile. Under what case in the casebook would the court shoot down her argument, and under what rationale?

If like the court in P.K. v. R.K. (NY 2006), the court would rule that the condonation defense fails, and Husband has proven grounds to divorce Wife because, 1. Under NY law, the defense is applicable only to causes of action for adultery, and not to cruel and inhuman treatment (as here) 2. Condonation requires proof of a resumption of marital relations that Wife failed to establish.

What statutory measures did the NY legislature enact regarding the practice of Orthodox Jewish husbands awarding "Gets", and what year was it?

In 1983, the NY legislature enacted statutes providing 1. That no final judgment of divorce may be granted unless both parties have taken all steps within their power to remove all barriers to remarriage. 2. A judge may consider any "barriers to remarriage" in determinations regarding property distribution and spousal support.

In what case did the supreme court severely limit domestic violence victims' ability to raise *procedural* due process challenges to states' failure to provide reasonably-relied-upon protection from domestic violence?

In Castle Rock v. Gonzales, the Supreme Court held that victims of abuse who were abused while in possession of a restraining order stating that the police "shall use" every reasonable means of enforcement, there is no *procedural* due process right to enforcement of such orders. This is because arrest is not always possible or practical, and because statutes provide for an alternative to immediate enforcement (initiation of an arrest warrant and the right to initiate contempt proceedings) but do not expressly give a protected person the right to demand an arrest.

In what cases did the Supreme Court severely limit domestic violence victims' ability to raise *substantive* due process challenges to states' failure to provide reasonably-relied-upon protection from domestic violence?

In DeShaney v. Winnebago (U.S. 1989), the USSC severely limited the "special relationship" exception under which the state has an affirmative duty to protect battered women, at least in the substantive due process (life, liberty, or property) context, when it held that no special relationship exists between a child protective services agency and an abused child, even though the agency was investigating the family and was aware of the continuing abuse. In Castle Rock v. Gonzales, the Supreme Court further narrowed the "special relationship" exception in the substantive due process context when it held that a person who has been awarded a restraining order, and who thinks the order has been violated, does not have a Fourteenth Amendment property interest in having the order enforced.

A woman has noticed, since the dating phase of her relationship with her now-fiancé, that he has health issues. She asks her in-laws-to-be about this, and they respond that their son's condition is a combination of metal poisoning and Lyme disease, when they know that he's HIV+ and has been diagnosed with AIDS. The woman files suit against her fiancé's parents, alleging fraudulent and negligent misrepresentation. Result?

In Doe v. Dilling (Ill. App. Ct. 2006), the appellate court held that the parents' failure to disclose was not actionable for negligent misrepresentation because the state law prohibited disclosure of hid HIV testing or status. The court also held that Plaintiff's reliance was not justiciable because she should have directed her concerns about her won health to medical professionals. Courts are reluctant to extend liability to third parties to require the m to disclose a family member's exposure to the innocent spouse or sexual partner.

Name two cases in which a court found rational bases behind prohibitions against same-sex unions and what those bases was.

In Hernandez v. Robles (NY 2006), the NY High Court held that a legislature could rationally decide that, for the welfare of children, it is more important to promote stability in opposite-sex rather than in same-sex relationships by offering the inducement of marriage. In Andersen v. King County, the state supreme court found that the state's Defense of Marriage Act did not violate the state constitution's privileges and immunities clause because it was rationally related to state interests in procreation and children's well-being.

May the state prohibit inmates with life sentences from getting married? What case?

In Turner v. Safley, the Supreme Court upheld its prior holding in Butler v. Wilson that a prohibition on marriage for life inmates is constitutional as punishment for a crime.

Liz and Harry marry and have a daughter. Several years later, Harry leaves Liz and moves in with Mildred. He remains with Mildred until his death 20 years later. Six years before his death he finally divorced Liz. When he shows Mildred the decree he says "now we're legally married." She replies "it's about time." After his death, Mildred and the daughter that Harry had with Liz fight over an intestate share of Harry's estate. Mildred argues that she is entitled to the intestate share of his estate as his legal spouse. What result?

In a common-law jurisdiction, the court would be likely to hold that Mildred was Harry's common-law wife from the date Harry divorced his first wive. The parties' words upon their seeing the decree constituted a present agree to marry.

What presumption exists regarding what constitutes an "equitable distribution" in a few states?

In a few states, there is a presumption that the most equitable division is an *equal* division, though in these jurisdictions, courts are free to deviate from the presumption if it would lead to a more equitable result.

What is the reality of "joint physical custody?"

In about half the cases, a decree of joint physical custody actually means that children reside primarily with one parent or the other, stemming from difficulties involved in children's maintaining dual residences.

In jurisdictions in which courts determine that licenses or degrees are not property, what is a common alternative theory by which the spouse who provided support during the preparation of the license/degree is often compensated for that support?

In an effort to achieve a fair result, many jurisdictions (such as NY), by case law or statute, have taken licenses and degrees into account in awards of spousal support, rather than treating them as marital "property."

When does a divorced parent's duty to support a child end? How has this changed over the years? What are the results of the change?

In most states, a divorced parent's responsibility to support a child ends at 18, the age of majority in most states. Traditionally, the age of majority was 21, and that was therefore the age at which a parent could cease supporting a child. The result of this effective lowering of the age at which a parent can cease supporting a child has given rise to the issue of wehther a noncustodial parent is liable for post-majority child support, especially for college expenses.

Bob and Gloria divorce after a 24-year marriage, prior to the husband's eligibility for retirement.Under the majority rule regarding pensions as marital property. Bob has nonvested pension benefits that will mature in three years. Bob argues that his nonvested pension rights are not community property subject to division. What case? What result under the majority rule regarding pensions as marital property?

In re Marriage of Brown. Court applied the majority rule regarding pensions as marital property and held that nonvested pension rights are not expectancies, but are rather a contractual right, representing deferred compensation for services rendered. Husband's pension rights were therefore found to be an interest acquired through community effort and thus are marital property subject to equitable distribution.

What is the significance of the "Get" to a married Orthodox Jewish woman who wishes to be divorced?

It is a religious divorce that her husband must grant her if -she wishes to remarry (subsequent marriages w/o a Get are considered adulterous in the faith community) and if -she wishes for her children not to be bastardized.

Wife is a citizen of Japan. She challenges an Iowa court's jurisdiction to dissolve her marriage on the ground that Husband failed to comply with Iowa's residency requirements, and that Japan was the more convenient forum. What case? What decision?

In re Marriage of Kimura (Iowa 1991). Appeals court found that : 1. Trial court could exercise jurisdiction in the action without violating Wife's due process right, even though Wife was absent, had never been to Iowa and was constructively rather than personally served; 2. Husband established that his domicile was in Iowa for purposes of divorce jurisdiction (had lived in IA for thirteen months and established residence in good faith; 3. refusal to dismiss the dissolution proceeding on forum non conveniens grounds was not an abuse of discretion b/c Husband would have been denied protection of IA's no-fault divorce law if the proceeding was held in Japan, Wife enjoyed vigorous representation in Iowa and Iowa's rules on alimony and property division were beneficial to Wife.

Mother and father have joint legal custody of two boys, with Mother having primary physical custody. Mother remarries and has another child. The biological parents' relationship is tense. Mother wishes to relocate from California to Ohio, where she has relatives and her new husband has a lucrative job offer. Father objects, alleging that Mother has attempted to alienate him from the kids and that the move will further impair his parent-child relationship. A custody evaluator reports that the move will negatively impact the children's already-tenuous relationship with Father and adds the evaluator's speculation that the mother's desire to move stems from an unspoken desire to absent herself from Father. What case? What decision under the modern trend regarding modification of custody orders?

In re Marriage of LaMusga (Cal. 2004) Appellate court would affirm the trial court order that Father should have physical custody if Mother relocates. The appeals court would thereby adopt the best interests test that considers many factors, including the effect that the proposed move would have on the children's relationship with the noncustodial parent. specifically, the court would hold that the noncustodial parent would bear the initial burden of showing that the proposed move would cause detriment and rule that, in the determination of detriment, it is relevant to show the likely impact of the move on the noncustodial parent-child relationship.

Why is the law concerning communal families so inconsistent among those jurisdictions that confer rights upon the communal families?

In some jurisdictions, communal families must show certain familial-like criteria to be recognized as having the rights of families, in others they need not make a showing. Among those which require criteria, the criteria differ.

In jurisdictions that confer rights upon communal families, are all groups of people living together recognized as communal families?

In some jurisdictions, communal families must show certain familial-like criteria. Example: Glassboro v. Vallorosi (NJ 1990). NJ Supreme Court affirms a finding that a group of students' occupancy constitutes a single housekeeping unit, since the students ate together, shared household chores, pay expenses from a common fund and planned to stay together for three years (thereby satisfying the requirement of a "stable and permanent living unit.")

Can former step-parents petition for visitation and custody?

In some states, yes. Visitation is more commonly permitted than is custody. Visitation/custody is more often granted when the stepparent has a long-term relationship with the child.

Tammy, a transwoman, marries Harry. When Harry dies, Tammy brings a medical malpractice action under the state wrongful death statute in Tammy's capacity as Harry's "surviving spouse." Does Tammy have standing?

In states which don't recognize gay marriage, this depends on whether the couple's state determines the validity of such marriages by reference to anatomy, or on genetic factors.

Carl is a perv. He goes to a mail-order Ukrainian bride website, sees a picture of Evelyn, and picks her. He gets her a visa and flies her out to the U.S. A week before the wedding and two weeks before Evelyn's visa would expire, Carl presents her a premarital agreement. If Evelyn doesn't sign, she would have to return, unwed, to Ukraine, where she would be shamed, and in ****** economic straits again. Evelyn signs the prenup. They get married and divorce. Evelyn argues that the prenup should not be enforced. What result?

In such a case, a court would likely invalidate the agreement based at least in part on duress. Additional factors that would lead a court to invalidate the agreement fall under the rubric of "overreaching" (defined as artifice, cunning or significant disparity in understanding of the agreement in an attempt to outwit the other party): Evelyn lacked the funds to pay an attorney or information to locate one. Evelyn was not fluent in English. Evelyn did not understand the agreement and attempted to translate it with a Ukranian-English dictionary. Evelyn was not represented. Nobody explained to Evelyn the difference between premarital and marital property.

When imposing visitation restrictions due to religious reasons, what do courts often use as a guideline?

In such circumstances, because of the First Amendment concerns limiting a court's power to settle religious disputes, courts will sometimes look to the effect of the exposure to the religious practices or beliefs on the children.

Carl and Evelyn meet when they are both in their mid-20s. Evelyn has a high school education and makes $19K as a hotel night desk clerk. She marries Carl, who makes $166K as a stockbroker. It is both of their first marriage. Their premarital agreement waives her right to spousal support, and provides that separate property of each remain separate. During their nine-year marriage, Evelyn is a homemaker and primary caregiver for Evelyn and Carl's two kids. By the time Carl files for divorce, Carl earns about a million dollars a year and is a partner in a brokerage firm. Evelyn challenges the validity of the prenup. Result?

In that particular case, the court upheld the prenup, but ruled that the waiver of spousal support was unconscionable, as -Both parties were in their twenties, and it was their first marriage, indicating that they were not legally sophisticated. -Evelyn quit her job to care for the children, while the husband's income--and thus their income disparity--grew exponentially. -The parties maintained an affluent lifestyle during the marriage.

What are the elements of marriage that make it contract-like?

It is an agreement between two people It involves parties who are legally capable of consent. It rests on consideration consisting of the exchange of mutual promises. It imposes rights and obligations.

How is insanity used in divorce cases?

It is both a ground for divorce and a defense. Some courts follow the McNaghten test, requiring the ability to distinguish right from wrong or understand the nature and quality of the wrongful act. Other courts follow the Durham test, requiring the marital misconduct to be the product of a mental disease or defect.

A car battery manufacturer excludes women of childbearing age from employment that involves exposure to lead, because of the health risks which lead contamination poses to fetuses. A female employee's union sues the manufacturer, alleging sex discrimination in violation of Title VII of the Civil Rights Act. Employer raises the defense that sterility is a bona fide occupational qualification, arguing that the policy is based on permissible safety concerns. What result?

Int'l Union, UAW v. Johnson Controls (U.S. 1991). Supreme Court held that Title VII, as amended by the Pregnancy Discrimination Act, forbids gender-based fetal protection policies. Employer's safety concerns about offspring do not establish female sterility as a bona fide occupational qualification because offspring are neither customers nor third parties whose safety is essential to the employer. The employer may not discriminate because of a woman's childbearing potential unless actual pregnancy impedes her ability to perform her job. Conception decisions and decisions regarding child welfare should be left to parents. An employer will not incur tort liability if it informs employee of risk.

The level of scrutiny to which cases of discrimination on the basis of gender are subjected.

Intermediate Scrutiny.

Is holding in contempt a noncustodial parent who refuses to pay child support a criminal proceeding or a civil proceeding? What is the significance of this question?

It can be either civil or criminal. Whether a particular contempt case is civil or criminal is significant because: o Criminal defendants are entitled to due process protections; o Civil contempt results in remedial punishment (imprisonment until defendant performs a required act) and for the benefit of the petitioner; criminal contempt results ina punitive sanction (imprisonment for a definite period without the possibility of purging) and to vindicate a court; o in civil contempt, any fine would be payable to the petitioner; o in criminal contempt, any fine would be payable to the court.

What is the problem with the abolition of tort causes of action for interference with the marriage relationship?

It creates problems for plaintiffs who seek to impose civil liability on psychologists and religious officials who engage in sexual misconduct while in the course of marital counseling. Today, such suits often must proceed on other, less-clearly-defined grounds such as negligence or infliction of emotional distress.

In divorce law, has the domiciliary requirement increased or decreased in importance?

It decreased since the advent of the no-fault divorce era. Back in the days of fault-based divorce. Spouses seeking divorce would try to domicile themselves in states that did not require strict fault-based grounds for divorce if their real home had such rules.

What do critics of recrimination say about the doctrine?

It denies divorces that genuinely deserve to end.

Do state courts recognize marriages between post-op transgendered persons and people opposite of the assigned sex?

It depends. NJ seems to have recognized such marriages, whereas Kansas seems to have rejected the legitimacy of such marriages.

Wife has an affair after ten years of marriage. The marriage continues (and produces two additional children) for three years after the end of the affair until Husband learns of it and sues his Wife's sancho for alienation of affections. Sancho loses and appeals, arguing that the statute of limitations started tolling once the affair ended, and that it has since run out. Husband argues that the limitation period started tolling when he found out about the affair. What result?

It depends: In Hancock v. Watson (Miss. App. Ct. 2007), the court found that the relevant focus should be on when the wife's affections, and not the husband's were alienated. In Misenheimer v. Burris (NC 2006), the state supreme court held that the statute of limitations in a criminal conversation action runs from the time that the husband *discovers* the adultery, and not when it was committed.

How is marriage a status?

It establishes a relation between two people.

What is a common criticism of common-law marriage doctrine?

It imposes governmental regulation on parties who have specifically chosen this type of intimate relationship because they desire to eschew governmental regulation.

What is a "communal family?"

It is a group of unrelated people who live together, who often comprise a single housekeeping unit.

Describe mediation as a process of establishing a child custody arrangement.

It is a process by which the parties, with the aid of a neutral third party, identify disputed issues, develop and consider options, alternatives and reach a consensual agreement. It respects the parties' autonomy in decisionmaking.

What is the income shares model?

It is the most popular model for establishing guidelines on the award of child support. Requires that both parents make a monetary contribution to child support. Based on a belief that a child should receive the same proportion of parental income as if the parents lived together. Court computes the support obligation based on the combined income of the parents in the former intact household. The obligation then is pro-rated in proportion to each parent's income. The model permits consideration of work-related child care and extraordinary medical expenses.

May/must a court provide representation for a child in a custody dispute?

It may, but it need not necessarily provide or allow represenattion for the child. Representation for children in custody disputes is discretionary.

What does the Restatement (Second) of Conflict of Laws say about domicile requirements for subject matter jurisdiction in divorce law? Give an example where this difference might be useful.

It relaxes the domicile requirements, as it states that a state can dissolve a marriage even if neither spouse is domiciled in the state, provided that either spouse has "such a relationship to the state as would make it reasonable for the state to dissolve the marriage." Under such a law, a soldier could get divorced either in his home of record or in the state in which he is stationed.

What does the Family and Medical Leave Act mandate?

It requires that -Employers of 50 or more -Provide eligible employees (those employed for at least a year) -with unpaid leave for up to 3 months -because of birth, adoption, or to care for a family member with a serious health condition. It provides for reinstatement to the same or an equivalent position, but does not entitle the employee to the accrual of seniority benefits.

What is the implication of the community property approach *during* the marriage (versus at dissolution)?

It suggests that, during the marriage, both partners have a vested interest in all property acquired during the marriage (other than by gift or inheritance) and in its management and care.

What was "incompatibility" in the divorce context, and what were its elements? What has its influence been?

It was an early no-fault divorce ground adopted by the Virgin Islands. Some courts have held taht incompatibility requires more than minor quarrels, i.e., irreconcilable conflict. It hasn't been very influential. Most states have modeled their no-fault divorce legislation on California's or on the Uniform Marriage and Divorce Act, and not on the VI's.

Former same-sex partner sues the mother and the sperm donor of the mother's two biological children, seeking full legal and physical custody of the mother's two biological children and two adopted children. Mother sues the former partner for child support for the mother's two biological children. The mother's long-time male friend agreed to be the sperm donor for two of the children and plays an active role in tehir upbringing. The trial court awards teh former partner primary physical custody of one child and partial custody of the other children. The former partner appeals. What case is this? What result? What significance?

Jacob v. Shultz-Jacob (Pa. Super. Ct. 2007). Appellate court affirmed the custody award, but vacated the award of support, remanding with directions that the sperm donor be joined as an indispensable party for a hearing at which the support oblitgations of each litigant is to be recalculated. The appellate court reasoned that the sperm donor was equitably estopped from avoiding the support obligation, given that the former partner could not avoid the support obligation and that the father's support obligation was statutorily imposed. Significance is that it is one of the rare cases in which a court has been willing to recognize the parental rights of more than two parents for a given child.

Joe and Jane get divorced; they have a kid together. Jane gets primary custody, though they have joint physical and legal custody. Jane remarries Corrado, a gangster. She ends up testifying against Corrado's mafia associates in court and has to be put in witness protection, along with the kid that she had with Joe. Because of the relocation, Joe is prevented from having visitation with the kids. Does Joe have a case? For what? Against whom?

Joe has a case for interference with visitation against the federal government. One could argue that the government invaded Joe's constitutional rights by not merely disrupting, but severing, his parent-child ties. The constitution requires that there be more than a determination that the federal interest would be marginally advanced by taking action in a particular case; there must be a showing that the governmental interest would be promoted in ways sufficiently substantial to warrant overriding basic human liberties.

How has the law changed regarding women resuming their birth names upon divorce?

Many statutes today have statutes which authorize married women to resume their birth names upon dissolution. The only reason these statutes exist is because some trial courts expressly refused resumption of the woman's birth name, citing concerns about the need for a husband's consent or fear of possible harmful consequences for the children, even though appellate courts often rejected such reasoning.

Jonathan and Michael live together in a rent-controlled apartment for 10 years until Michael dies of AIDS. Jonathan has been taking care of Michael for the last 2 years of Michael's illness. Both men's families are aware of their relationship. Because Michael was the named tenant on the lease, the landlord begins procedures to evict Jonathan in order to offer the apartment at a higher rent. Jonathan argues that he is a "family member," as the city rent-control statute prohibits eviction following death of a "family member." However, the provision includes a restrictive definition that limits family members to husband, wife, son, daughter, step-relations, nephews, nieces, uncles, aunts, grandparents, grandchildren and in-laws. When Jonathan challenges the eviction, will he succeed?

Jonathan may succeed. He should argue that he is protected despite the restrictive definition of "family member" in the city's rent-control provision. He should argue that a functional definition applies because the purpose of the provision, like that in Braschi, is to protect family members from hardship and dislocation following death. Further, the two men's relationship meets the Braschi standard: manifesting a long duration, a high level of emotional commitment, care of each other's needs, and an openness about their relationship.

Two lesbian partners decided that they want to have a kid. One donates the egg, the other bears the child. Before the kid is born, the couple splits. The non-birth mother petitions, pre-birth, for custody. Under the modern trend, what result? What case?

K.M. v. E.G. (Cal. 2005) In that case, the court held that both former partners were legal parents of children born by in vitro fertilization.

Before Barbara and Jeff marry, they agree to raise their children as Jews. Barbara is Jewish, whereas Jeff is Catholic. Subsequently, Jeff becomes a fundamentalist Christian and Barbara becomes an Orthodox Jew. each wants their three children to be brought up in his or her respective religion and, further, Barbara wants the court to limit the children's exposure to Jeffrey's religion. Jeffrey objects to any condition on his sharing his religious beliefs. The trial court restricts the children's exposure to Jeffrey's religion, saying that he may not take them to religious services where they learn that persons who do not accept Jesus Christ are going to hell. Jeffrey appeals, alleging that the findings did not demonstrate "substantial harm" that would necessitate the restriction on the free exercise of his religion. What case? What result?

Kendall v. Kendall (Mass. 1997). Appellate court affirmed, determining that the trial court judge found demonstrate evidence of substantial harm in the emotional distress suffered by the children (torn between belief systems, concerned that their mother was going to hell) related to the parental conflict.

When did divorce become more-easily attainable, and why?

Late-1960s, early 1970s. Before that time, states required that a plaintiff establish fault-based grounds for divorce.

Supreme Court case in which the Court found a Due Process right to no state interference of intimate sexual conduct between two adults.

Lawrence v. Texas.

At the conclusion of a custody hearing in which the parties present their case-in-chief, but prior to any rebuttal testimony, the judge appoints counsel for the child. Ultimately, the court awards custody to the mother. The father appeals, arguing that due process requires that the parties know what the role of the child counsel will be in order to properly prepare for and respond to the evidence that the child counsel will present. What case was this? What result?

Leary v. Leary (Md. Ct. Spec App 1993). Appellate court held that while it would have been preferable for the trial court to enter an order stating the purpose for the appointment, the omission was harmless error. The court also discussed the lack of clarity regarding the role of the attorney for a minor. Relying on a state bar assoc report, the court identified three possible roles: -Decisionmaker; -Guardian ad litem; -Investigator

How does no-fault divorce doctrine reflect the evolution in women's status brought about by women's increased economic opportunities?

Legal treatment of spousal support. Gender-based "alimony" concept replaced with the more neutral terms "spousal support" or "maintenance.

Distinction between Loving v. Virginia and Zablocki v. Redhail

Loving says that the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state, and that equal protection requires that racial classifications be subjected to strict scrutiny, especially in criminal statutes (necessary to the accomplishment of a permissible state objective, independent of race discrimination). Zablocki says that, under equal protection, there is a fundamental right to marry, and that a state statute denying this fundamental right must be supported by an important state interest and be closely tailored to effectuate such interests.

Husband is a special ed teacher at an elementary school. Wife is appointed principal of the school. school board has a no-spousal employment policy that leads to Husband's transfer. Husband files a grievance challenging the policy, alleging that the policy violates his freedom to marry under Zablocki v. Redhail. It is denied, and he brings the same argument to court. Likely result?

Likely result would be that the court would find that the board's policy does not deny Husband the right to marry, but only the right to be supervised by his wife.

Plaintiff is engaged to, and lives with, the father of her infant. Prior to Plaintiff's scheduled return from maternity leave, she chooses to leave her job and relocate to NY in order to care for her partner's ill father. When Plaintiff is unable to find work there, she applies for unemployment insurance benefits. Her claim is denied based upon a determination that she voluntarily quit without "good cause." "Good cause" can be satisfied by a showing that "compelling family circumstances" required the voluntary resignation. Plaintiff-appellant argues that she did show good cause. If the appeals court agrees with her, how is it likely to reason?

Macgregor v. Unemployment Ins. Appeals Bd. (Cal. 1984) The court in that case held that "compelling family circumstances" existed because Plaintiff established a family unit and relocated in order to preserve that unit, and that the presumption of good cause resulting from a valid marriage is not the exclusive means of demonstrating good cause based on compelling family circumstances.

There is a current reform movement afoot involving no-fault divorce. What is its main goal, and what are some of its individual objectives?

Main goal: to increase the consideration of fault in dissolution proceedings. Objectives: -Repeal of no-fault and the return to fault-based grounds; -Greater consideration of certain types of marital misconduct (e.g., spousal abuse); -Higher standards for divorces involving children; and -Lengthier waiting periods for no-fault divorce.

Can alimony ("spousal support") be waived in a prenup in a majority of states? What are two notable exceptions to the majority rule?

Majority rule is for states to permit waivers of alimony/spousal support in prenups. Limitations: -In most states the waiver must be explicit. -In California, prenuptial waivers of spousal support aren't enforceable if the party against whom enforcement is sought was not represented by counsel or if the waiver is unconscionable at the time of enforcement.

Carl promises to marry Evelyn and proposes to her with a giant 16 carat ring. He gets cold feet and runs off to join the Army. Evelyn doesn't return the ring, regardless of Carl's requests. He sues Evelyn for the ring. What result?

Majority rule: Parties at fault in breaking the engagement are not entitled to the return or retention of the ring. Since Carl was at fault in breaking the engagement, he is not entitled to the return or retention of the ring. Modern trend: Carl can recover the ring. Gifts in contemplation of marriage are recoverable without regard to fault.

Two parties meet the requirement for a common-law marriage. They move around quite a bit. They reside in a jurisdiction that does not recognize such marriage, but later visit a jurisdiction that does, and then return to their home jurisdiction that does not recognize such marriages. Result?

Many courts in the home state will hold that a valid common-law marriage took place in the jurisdiction that the couple visited.

Is mediation optional or is it mandatory?

Many statutes make it an option, whereas a few others mandate it. Many of the states that mandate it permit it to be waived for good cause or if a party will suffer severe emotional distress as a result of the mediation. In some states, spousal abuse cases are automatically excluded from mediation. This is because mediation poses special dangers for battered women, including that the mediation sessions provide more opportunities for abuse.

What is the holding of Marvin?

Marvin I (California 1976): General Rule: Dual cohabitants are as competent as married persons to contract regarding their property rights. Their competency to do so should not be rejected based on an abandoned moral code. Exception to the General Rule: Agreements between nonmartial partners fail only to the extent that they involve illicit sexual services, in which case any severable portion will be enforced. Equitable Remedies: In the absence of an express agreement between unmarried cohabitants, implied contracts (implied-in-fact and implied-in-law) between cohabitants are enforceable to protect the fulfillment of the parties' reasonable expectations. Courts may inquire into the conduct of the parties to fashion relief through a constructive trust, resulting trust or quantum meruit. Marvin III (Cal. App. 1981). Limit to Equitable Remedies: Though courts may exercise equitable powers to grant relief awards to non-marital partners, this is only if the person to be paying the award was unjustly enriched (didn't apply here because both parties benefited from the relationship) or committed a wrongful act.

Husband and Wife marry in 1979. Husband opens a solo practice dental office. In 2000, the court awards the parties a divorce on the ground of irreconcilable differences. The parties subsequently litigate the distribution of marital property. Husband's expert values his solo dental practice at $55K. Wife's expert places a fair market value on the practice at $120K. Fair market value includes a value for goodwill. Husband appeals. Under the majority rule regarding treatment of "personal goodwill" and "enterprise goodwill," what result? What case?

May v. May (W. Va. 2003). Court held that inclusion of $80K for goodwill in the valuation of Husband's dental practice was error because the solo practitioner's dental practice had only personal goodwill that was not divisible as a marital asset.

Carl is the divorced father of 12-year-old Sugar, whose mother, Evelyn, has primary custody. During Carl's marriage with Evelyn, he was making $40K per year. Carl divorced Evelyn when Sugar was four. After the divorce, Carl goes to school, completes a degree, and gets a new, higher paying job allowing him to make $80K. Evelyn petitions for an increase in Carl's child support obligations. Should she prevail?

Maybe. A significant improvement in the payor's resources may constitute a substantial and material change of circumstances justifying an increase in spousal suppor. On the other hand, a few courts have held that the recipient spouse not receive a windfall merely if the payor subsequently experiencess success for the reason that the appropriate yardstick for support is the standard of living during the marriage.

Mary and Larry are married. After Mary has a stroke that renders her completely paralyzed, the couple ceases to have sex. Eight years after the stroke, because of marital discord, Larry moves out of the house, into an RV adjacent to the house. He continues to help Mary with household chores. This continues for several years. When Larry files suit for divorce based on the grounds of living separate and apart for at least two years without cohabitation, will he prevail?

Maybe. The term "living separate and apart" may require both physical separation and the intent to dissolve the marriage, depending on the jurisdiction. Some jurisdictions also add the requirement that the spouses maintain separate residences and hold themselves out to the public as not living together. Larry's living in the RV may or may not qualify as living separate and apart. The fact taht teh couple continued to hold themselves out as married may militate against a finding that they lived separate and apart. There was no cessation of marital duties, because Larry continued to help with household chores, which might also militate against a finding that the couple lived separate and apart.

Most common method of challenging antinepotism policies, and its effectiveness.

Most common method is through state civil rights statutes which prohibit discrimination based on marital status. Effectiveness has been mixed. some courts have invalidates such policies based on state civil rights laws. Other courts narrowly interpret the statutes to bar only discrimination on marital status as such (i.e., whether a person is single, married, or divorced), and not to bar discrimination based on the fact of marriage to another employee.

What are the three approaches that jurisdictions currently take toward unmarried couples' arrangements regarding divisions of property in the event of dissolution of the relationship?

Minority view: Adherence to the traditional rule refusing to recognize such claims based on public policy grounds. Majority view: Recognize nonmarital couples' agreements regarding divisions of property acquired during the relationship in the event of dissolution of the relationship. Majority view is split in two, however between: -Jurisdictions which recognize claims only if based on an express agreement; -Jurisdictions which recognize claims, whether based on express or on implied agreements.

Can minors below the state-established age of consent still marry?

Minors below the age of consent must first secure parental consent if they are to marry. In many states, the permission of one parent is sufficient. Some states provide that parental consent plus judicial consent is required for very young minors or for minors in exceptional circumstances (such as pregnancy). Several states permit courts to override parental refusal.

What has been the trend respecting judicial recognition of premarital agreements, and what are the reasons for the trend.

Modern trend is for increasing judicial recognition of premarital agreements. The trend is the result of rising incidence of divorce and remarriage, the decreasing influence of morality, changing gender roles, and an enhanced respect for decisional autonomy ("private ordering.")

What is the legislative trend regarding alternative family arrangements?

More (at least 9) states providing a range of protection (from equal legal treatment to heterosexual spouses to more limited protections) for "domestic partners," those in "civil unions," or "reciprocal beneficiaries." These laws are generally applicable only to same-sex couples California has recognized reciprocal rights of hetero partners who are living together and who are collecting Social Security. Hawaii recognizes family relationships in which persons in which persons are "legally prohibited from marrying under state law," such as siblings living together, or an adult son living with his widowed mother.

Carl is 53. Evelyn is 33. Both have previously married. They decide to marry in order to legitimize their nonmarital child. A few days before the wedding Carl insists that Evelyn sign a prenup that he (a lawyer) has prepared. The agreement sought to control the disposition of the couple's marital property upon divorce, in contravention of state community property law. After 8 years of marriage, Carl files for divorce. Evelyn alleges that the agreement is unenforceable. What result?

Most courts would hold that the agreement is valid. The modern trend is to apply traditional contract analysis to issues involving prenups, and to allow such agreements to stand, even if one party has given up all his or her rights in the property of the other.

I am a battered spouse who has managed to achieve a physical separation from my abuser. What can I do to protect myself now? Note that I'm not interested in justice just yet. Right now I just want to feel safe. I'm also concerned about not getting support from my husband or seeing my kids.

Most states have legislation providing for civil protective orders. These orders restrain a batterer from entering a dwelling or committing further acts of abuse, and may permit awards of temporary custody, support of children and spousal support. Following a full hearing, they may be made permanent.

Describe a formal requirement for prenuptial agreements to be valid and its origin.

Must be in writing and signed by the party to be charged, because of the statute of Frauds.

What conditions must a premarital agreement meet in order to be valid?

Must be procedurally and/or substantively fair.

Can gay state employees require the state to give their partners the same benefits granted to married heterosexual workers?

National Pride at Work v. Governor of Michigan (Mich. App. 2007). This is unlikely if the state has its own version of DOMA that recognizes marriage only between a man and a woman. Such a law would likely be interpreted to preclude any attempts to confer marriage-like benefits, including health benefits, on same-sex partners

Ordinarily-normal husband comes home after finding that his wife cleared the kids' college fund to buy a Cadillac CTS-V coupe. He starts swearing loudly and destroying furniture. He tells his wife her family are a bunch of inbreds that he'd love to see burned alive. This is too much for her, and she has a heart attack. She seeks a fault-based divorce on the ground of Cruelty. Will she succeed?

No. A single act of cruelty does not suffice to satisfy the "course of conduct" requirement unless the act is particularly severe.

Pre-1992, did federal courts hear, under their diversity jurisdiction, disputes between former members of unmarried couples over property-sharing agreements? What rationale?

No, they did not. Under the domestic relations exception to federal jurisdiction, federal courts traditionally refuse to adjudicate family las matters such as divorce, alimony or custody, because such matters are more suitable for resolution by state courts.

Does federal bankruptcy law permit a debtor, upon divorce, to avoid a lien and thus defeat the other spouse's property interest? What case?

No. Federal bankruptcy law does not permit a debtor, upon divorce, to avoid a lien and thus defeat the other spouse's property interest. Farrey v. Sanderfoot (U.S. 1991) 2005 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 provides that a debtor can avoid a lien on exempt property only when the lien does not secure a domestic support obligation.

When Jane divorces Peter, Peter insists that Jane stop using his surname. However, Jane refuses. She desires to continue using Peter's surname in order that she and their children will continue to share the same last name. Does Peter have standing to force Jane to stop using his surname after the divorce?

No. A person has no standing to seek a name change for another person. A husband cannot insist in a divorce proceeding that the court "restore" the ex-wife's birth name if she chooses not to institute such a request.

Mary Smith marries John Jones. After their marriage, they orally agree that Mary shall take on the new hyphenated surname "Smith-Jones." Mary begins to use that surname on all formal and informal documents. John's relatives, however, refuse to recognize Mary as "Mary Smith-Jones," and persist in calling her "Mary Jones." The relatives inform Mary that her common-law name change is invalid. Are they correct?

No. A person may change his or her name at common law without legal proceedings by adopting another name and using it consistently and absent fraudulent intent. a common-law name change is valid despite the failure or refusal of others to recognize and rely on the new name. The validity of the name change does not require that it be recognized or accepted by anyone other than the person who assumes the new name.

Upon their divorce, Husband and Wife enter into a property settlement agreement. The agreement provides that "in consideration of the payment to Wife of $10K per year for four years for spousal support, and the conveyance of $20K to Wife in personal property, Wife agrees to and does release all rights of inheritance in Husband's estate. The agreement is referred to in the divorce decree and is approved by the court but is not actually made part of the decree. Husband conveys to Wife the $20K in personal property was in the form of stocks and bonds; however, he fails to make any payments for spousal support. Wife attempts to enforce the agreement by contempt proceedings. Will she prevail?

No. A settlement agreement between the spouses may be enforced by contempt if the agreement has been incorporated and merged in the divorce decree. If the agreement is not merged into the decree it remains a separate enforceable agreement and is enforceable in a separate contract action but not enforceable by contempt. Because Husband and Wife's agreement was referred to in the decree and approved by the court, but not merged into the decree, the marital separation agreement is not enforceable by contempt. Wife will have to sue for breach of contract.

Brad and Mary divorce after a 20-year marriage. Brad is a successful pediatrician. Mary gave up her career as a schoolteacher to raise their two children. Mary is awarded $2500 per month alimony for a two-year period and $1500 per month in child support. Following the divorce, Brad decides to give up his lucrative practice to teach part-time in a local medical school at one-tenth of the salary. He tells his friends taht his decision was influenced by the fact that Mary left him for another man, and his consequent desire to "not...give her another dime." He then requests a modification of his child support obligations based on his change of occupation. Will he prevail?

No. A voluntary change of occupation that results in the payor's reduced earnings generally does not justify a decreased award of support. Because the evidence shows that Brad's primary purpose in giving up his lucrative medical practice was to reduce his support payments, the court should not grant the requested reduction.

Husband moves out of home in response to marital difficulties. Without Wife's knowledge or consent, he attached a recording device to the home phone. He tapes conversations between Wife and third parties. Wife secures a divorce, discovers the wiretap, and brings federal wiretapping action against Husband. Husband defends by saying that he did not know that wiretapping was illegal and that his main concern was his children's welfare. Will Husband's arguments regarding federal wiretapping be successful?

No. According to the majority approach among the federal courts, Husband will be liable for damages to Wife for violating the federal wiretapping statute. His defenses do not absolve him for liability under the federal statute.

Does the Pregnancy Discrimination Act void state statutes that affirmatively provide for employment-related pregnancy benefits?

No. As held by the USSC in Cal Fed v. Guerra (U.S. 1987), Congress intended the Pregnancy Discrimination Act to be a "floor" below which maternity benefits could not drop and not a "ceiling." A state can provide more expansive benefits if it wishes.

Sandra marries Tom. Tom had been previously married to Nancy. Unbeknownst to Sandra, Tom's divorce was not final when they married. therefore her marriage to Tom is not valid. Can Sandra be prosecuted for bigamy?

No. Bigamy consists of the crime of entering into marriage when one of the parties is married to a third person who was then still living. Modern courts generally require intent to commit bigamy, i.e., that the defendant entered into a second marriage with the knowledge that the first marriage is still valid. Sandra did not have the requisite intent.

If a state does not have a ban on lawyer-client sexual relations, does this mean that lawyers can't be punished for having sex with clients?

No. Even without a specific state prohibition of attorney-client sexual relations, a jurisdiction may nonetheless determine that the attorney's sexual conduct constitutes a violation of general conflict of interest rules. Example: In re Tsoutsouris (Ind. 2001) (client entered psych treatment after he stopped giving her the D)

Rhonda and Ronald marry. Rhonda becomes pregnant. Marital difficulties lead to a divorce during which Rhonda is given primary residential custody of their as-yet unborn child. The child is born, and they name him James. During the divorce, Rhonda changes her surname to "Acosta," the name of the man she plans to marry soon. Rhonda is pregnant during th divorce proceedings. When James is born, prior to entry of the divorce decree Rhonda gives him the surname Acosta. During the divorce proceedings, Ronald challenges the refusal of the trial court to change James's surname to Ronald's and argues that custom dictates the father's choice of surname. Will Ronald succeed?

No. Courts generally resolve parental disputes about children's surnames according to the best-interests-of-the-child standard. In this case a court would weigh Rhonda's versus Ronald's reasons for the name change. Rhonda would argue that James should take the name "Acosta" because James will be physically present in her home and will bear the same surname as his mother and new stepfather. On the other hand, Ronald would argue that James should have Ronald's surname because Ronald has an interest in the preservation of his parental relationship, which could be weakened if James does not bear his surname. A court might find that the best interests of James dictate that he should be permitted to retain the surname "Acosta." Ronald's concerns might be addressed by having him strengthen the father-child bond in other ways during the exercise of his visitation rights.

Do the preferences of grandparents in choosing the surname of the child have influence in disputes over surname changes of a child?

No. Courts have held that the preferences of grandparents are not influential in disputes over surname changes of a child.

When Anne and Donald marry, he draws up a document that explains the marriage is taking place against Donald's wishes and only because Anne was blackmailing him and threatening suicide if he didn't marry her. The document adds that Anne is marrying him because she is desirous of reestablishing herself in the good graces of her relatives and also because she cannot bear to continue to live with her sister. When Anne and Donald separate after a 10-year marriage, Donald argues that the marriage is invalid on grounds of duress. Will his argument be successful?

No. Donald's allegations of duress are not legally sufficient to invalidate the marriage. Here the duress was mental (rather than physical). To succeed, Donald would have had to prove that Anne's duress (threats and persuasions) rendered him unable to act as a free agent in entering the marriage. these allegations of duress do not approach that standard. Donald could have refused to marry Anne.

Jane, a state worker, and Jill have been in a committed relationship for eight years and decide to get married. Their home state does not permit same-sex marriage. They decide to go to Canada, where such marriages are allowed. When they return home, Jane submits a request to her state employer, requesting health benefits for her spouse. Is Jane's employer required to grant such benefits?

No. Even though U.S. citizens may go to Canada to marry (provided they meet the marriage requirements of the Canadian province in which they wish to marry), they will--when they return to the U.S.--discover that marriages of same-sex partners that took place in Canada are not legally recognized in the U.S. The Full Faith and Credit Clause of the Constitution is inapplicable because it applies only to *other states'* public acts, records, and judicial proceedings and therefore does not apply to those of other countries.

There used to be a presumption in awards of child custody. What was it, and why was it abolished?

There used to be a presumption that a woman would be awarded custody of a child. It no longer exists because women are no longer assumed to have the role of child caretaker, and men have increased participation in childcare and housework. We now have a "joint custody doctrine."

John and Jerry are married in Massachusetts, which allows same-sex marriage. John is a resident of Massachusetts; Jerry is an Irish national. After their marriage, Jerry asserts that, as John's spouse, he is entitled to preferential status for immigration purposes. Will Jerry's argument be successful?

No. Federal law governs immigration. DOMA provides a heterosexual definition of marriage for purposes of federal law, such as immigration. DOMA would preclude Jerry from qualifying as John's spouse for immigration purposes.

I'm a convicted wife beater. My friends called me up and want to go a deer huntin'. Can I go?

No. Federal legislation punishes firearm possession by a person convicted of crimes of domestic violence or subject to protective orders.

Husband moves out of home in response to marital difficulties. Without Wife's knowledge or consent, he attached a recording device to the home phone. He tapes conversations between Wife and third parties. Wife secures a divorce, discovers the wiretap, and brings federal wiretapping action against Husband. Husband defends by claiming that the interspousal immunity doctrine bars Wife's claim. Will his argument be successful?

No. His claim of interspousal immunity will be rejected because most jurisdictions have abolished the doctrine. Also, the doctrine should not be applicable because the couple is divorced. Finally the rationale for application of the doctrine is inapplicable because the doctrine will not promote marital harmony in this case of divorced spouses, will not involve the judiciary in a trivial matter (this is a case involving a federal law violation), will not enable these divorced spouses to collude to defraud insurance companies, and would prevent any reward to Husband for his wrong (as the divorced Wife here would not share any recovery with him).

Wife obtains a decree of separation in IL. Husband, a college teacher, writes to a NV attorney inquiring about obtaining a divorce there. He learns that NV has a six-week residency requirement. Husband discusses marriage with his new girlfriend. Husband moves to NV, telling his employer that he will return to teach in the Fall, but retaining savings and checking accounts in IL. He obtains an ex parte Nevada divorce. Wife claims that NV decree is not entitled to full faith and credit. Is Husband's divorce decree entitled to Full Faith and Credit?

No. Husband's divorce decree, obtained ex parte, is not entitled to full faith and credit because Husband failed to establish a bona fide domicile in NV. Based on the Supreme Court decisions of Williams I and Williams II, Illinois is entitled to determine for itself the jurisdictional facts upon which the NV decree was based. IL properly determined that the husband was not domiciled in NV because he did not intend to abandon his IL domicile (as evidenced by retaining his job and bank accounts).

Carl marries Evelyn. Carl's divorce from his previous wife has not finalized, however. Is his marriage to Evelyn valid?

No. If a party to a marriage is still validly married to a prior living spouse, then the subsequent marriage is void. This rule is, however, subject to a presumption that is applicable in limited circumstances.

Pauline and Peter's constant bickering leads them to begin discussing divorce. While their discussions are ongoing, Pauline begins a sexual relationship with Max, a co-worker. when Pauline and Peter ultimately decide to seek a divorce, they cannot agree as to custodial arrangements for their two children (ages 1 and 3). Pauline has been doing most of the childcare since the children were born. At a subsequent hearing, Peter asks the court to grant him sole custody. He argues that Pauline's adulterous conduct with Max renders Pauline an unfit custodian. Pauline asks the court to award sole custody to her based on the tender years presumption. Will Pauline's argument be successful?

No. In regard to Pauline's request for sole custody, courts no longer apply the tender years presumption (or maternal preference doctrine). that doctrine permitted awards of custody to the mother when the children were "of tender years" (generally preschool-age). Several courts have declared the doctrine unconstitutional as a violation of Equal Protection.

Jane, a state worker, and Jill have been in a committed relationship for eight years and decide to get married. Their home state does not permit same-sex marriage. They decide to go to the neighboring state where such marriages are allowed. When they return to their home state, Jane submits a request to her state employer, requesting health benefits for her spouse. Is Jane's employer required to grant such benefits?

No. Jane could argue that her home state has to recognize her marriage in the neighboring state based on the Full faith and credit Clause of the Constitution or on the rule of lex loci. The Full Faith and Credit Clause requires that a state confer full faith and credit to public acts, records and judicial proceedings of sister states. the rule of lex loci provides that a marriage that is valid where celebrated is valid everywhere. However, DOMA permits a state to refuse to recognize a same-sex marriage that was contracted in another state. Jane's home state might refuse to recognize the marriage under the rule of lex loci based on a public policy exception. Moreover, it is possible that Jane's home state has either a state statute or a constitutional amendment that prohibits recognition of same-sex marriages contracted in another state. As a result, Jane's employer does not have to honor Jane's request.

Jim meets Paual through an Internet chat room. They discuss many things--their backgrounds, religions, finances, etc. At the time, Jim has more financial resources than does Paula. A few months later, Jim and Paula marry. After several months they break up. Jim seeks an annulment, alleging that Paula wanted to marry him in order to access his finances and solve her financial difficulties. Will his argument regarding her alleged fraud be successful?

No. Jim's argument regarding Paula's alleged fraud about her financial situation is not of a nature sufficient to entitle him to an annulment based on fraud. False representation as to wealth, like those regarding health, character, etc, are not legally sufficient grounds for annulment.

As Evelyn and Carl are contemplate marriage, bankruptcy proceedings are pending against Evelyn and her former husband. Several weeks before the wedding, Carl asks Evelyn to execute a prenuptial agreement because of his concern that creditors in the bankruptcy proceeding will go after his assets once he and Evelyn marry. They execute a prenuptial agreement specifying that each party retains sole title to any property acquired prior to and during the marriage and that any debts incurred prior to and during the marriage would remain the debt of the party who incurred the debt. Additionally, the parties waive rights to alimony and property. When Evelyn files for divorce, she alleges that the prenup is invalid because she was not represented by counsel. What result?

No. Legal representation is not a prerequisite to the validity of a prenuptial agreement. Evelyn never sought independent legal advice even though she had ample time to do so. She was not coerced into signing teh agreement. Furthermore, when she executed teh agreement, she had knowledge of the importance of independent legal advice because she had been a party to prior legal proceedings (bankruptcy and prior divorce).

After several months of dating, Gary asks Lillie to marry him. She declines, saying that she is not yet ready to marry. Several times over the next 10 years of dating, Lillie asks Gary to marry her, but he does not do so. Instead, he occasionally promises to marry her sometime in the future. Gary stays at Lillie's house several nights each week. Each maintains a separate residence and separate accounts. They sometimes take vacations together. Gary never represents that he and Lillie are married. When they break up, Lillie alleges that they had a common law marriage. Will her argument be successful?

No. Lillie's allegation that she and Gary had a common law marriage will fail. She and Gary never agreed to live together as husband and wife (she rejected his sole proposal). They did not cohabit because each maintained a separate residence throughout the relationship. Gary never represented that thehy were married. Even if Gary intended to marry Lillie at some future point, an agreement to marry in the future is insufficient to establish the requisite agreement to establish a common-law marriage.

Diana is white. She married Livingston, who is originally from Nigeria, but who is a naturalized citizen. Six years later, when the couple divorces, the court awards custody of their son to Diana and orders Livingston to pay child support. Livingston appeals, arguing that the son's biracial heritage warrants placement with him. He claims that Diana's recent relocation from Detroit (large AA population) to a smaller town with no black kids would be detrimental to his son because the boy would be denied daily contact with a racially diverse population. Will Livingston's argument be successful?

No. Livingston is basing his request for custody of his son solely on the argument that he would be a better parent to raise his biracial child, given the fact that his ex wife is white and would raise the child in a white community. In Palmore, the USSC held that race cannot be the dominant or controlling factor in a custody decision. That decision would preclude an award of child custody to a fit parent based on the sole ground of race.

In forming the agreement that forms the basis of a common law marriage, may any specific words be used? If so, which ones?

No. No specific words need be used.

Do any states permit bigamous or polygamous marriages? If so, which ones?

No. No states permit such marriages.

Speedy-Clean, a small dry cleaning establishment with 15 employees has no medical leave policy for pregnancy or for other disabilities. Speedy-Clean defends its lack of a policy by arguing that the business is not profitable enough to enable it to provide such a policy. Pauline challenges the employer's lack of a maternity leave policy under the Family and Medical Leave Act. Will she prevail?

No. Pauline will not be successful on her FMLA claim. the FMLA only requires employers of 50 or more employees to provide unpaid leave. therefore, the FMLA would not apply to Speedy-Clean, which has only 15 employees.

Speedy-Clean, a small dry cleaning establishment with 15 employees has no medical leave policy for pregnancy or for other disabilities. Speedy-Clean defends its lack of a policy by arguing that the business is not profitable enough to enable it to provide such a policy. Pauline, a pregnant employee, challenges the employer's lack of a maternity leave policy under the Pregnancy Discrimination Act. Will she prevail?

No. Pauline will not be successful on her Pregnancy Discrimination Act claim. the Act requires that employers treat pregnant employees the same as other disabled employees. because Speedy-Clean has no policy for pregnancy, and has no policy for other disabilities, the employer is treating all employees alike and therefore will not be liable.

Pauline and Peter's constant bickering leads them to begin discussing divorce. While their discussions are ongoing, Pauline begins a sexual relationship with Max, a co-worker. when Pauline and Peter ultimately decide to seek a divorce, they cannot agree as to custodial arrangements for their two children (ages 1 and 3). Pauline has been doing most of the childcare since the children were born. At a subsequent hearing, Peter asks the court to grant him sole custody. He argues that Pauline's adulterous conduct with Max renders Pauline an unfit custodian. Pauline asks the court to award sole custody to her based on the primary caretaker presumption. Will her argument be successful?

No. Pauline will not prevail on the basis of the primary caretaker presumption. That presumption would dictate that a court award custody to the parent who was the child's primary caretaker, i.e., the parent who performed such tasks as meal preparation, grooming, discipline, bathing, and putting the children to bed, etc. Even though Pauline might be able to prove that she was the children's primary caretaker, such a showing would be unlikely to result in the application of a presumption in her favor because no jurisdiction currently accords the doctrine presumptive status. Rather, the court would most likely follow the majority of jurisdictions that consider primary caretaker status as one among many factors in the determination of the best interests of the child.

Are all states cool with antenuptial agreements that preclude the possibility of spousal support?

No. Some cases and state statutes reflect a distaste for prenups that preclude the possibility of spousal support.

Must a court recognize a foreign divorce decree?

No. The deferential doctrine of Comity is a discretionary one. It is not like the Full Faith and Credit Clause of the Constitution, which mandates judicial recognition of the decrees of other states

Donna and Cedric separate in 2006. Their divorce becomes finalized in May 2008. In February 2008, Cedric is visiting his daughter at Donna's residence when he finds documents indicating that Donna filed a false loan application. After Cedric's visit, the FBI contacts him and asks him to call Donna on a tapped phone and get her to make incriminating statements. He gladly complies. During Donna's trial for fraud, the taped conversation is admitted into evidence. Dona objects based on the marital communications privilege. Will her argument be successful?

No. The marital communications privilege applies to communications made between spouses. These spouses, though still technically married, were living separate lives with no reasonable expectation of reconciliation ("permanently separated") so there was no marital harmony to promote.

Jane, age 30, marries Sam, age 45. After several months of intense marital conflicts, they decide to seek a divorce. At the time of the marriage, Jane is a stockbroker earning $5,500 per month. She also has a stock portfolio worth $250K. Sam is the CEO of a small computer company. He earns $175K annually and has net assets worth $5M. Upon divorce, Jane requests spousal support in the amount of $4K per month to enable her to live in the standard of living to which she has become accustomed. Will her request be granted?

No. The traditional standard for spousal support is need and ability to pay. Although Sam has the ability to pay, Jane has no need for spousal support because she has a well-paying job and substantial assets. Under the modern view, as illustrated by UMDA, spousal support is awarded only to spouses who do not have sufficient property to provide for their needs, who are unable to support themselves through employment, or who have custody of very young children. Because Jane is a stockbroker earning $5,500 per month and has a stock portfolio worth $250K, Jane has sufficient property to provide for her needs and is able to support herself through employment. Jane's request for spousal support was properly denied.

Patricia and Kirk's Texas divorce decree incorporates the couple's agreement that Patricia shall have primary custody of the couple's two daughters. Shortly thereafter, Patricia decides that she would like to move to Arizona. Patricia asks Kirk, and he agrees, to take the children for a few moths until Patricia finds employment and is able to establish a home for them in AZ. Kirk then moves with the kids to Minnesota with his new fiancée to be near her extended family. Before Patricia is able to move to AZ, Kirk files a custody modification motion in MN two months after his arrival there. Does the MN court have jurisdiction to modify the TX custody decree?

No. To determine which state has jurisdiction for modification purposes, it is necessary to examine teh requirements of the UCCJEA. Under the UCCJEA, a state has made a prior custody determination has "continuing exclusive jurisdiction" for purposes of modification if the initial court continues to have jurisdiction and the former state is the residence of teh child or any contestant. IN this case, Texas would be the proper forum under the UCCJEA because Texas rendered the decree and Patricia continues to reside there.

Wife and Husband have been married for 20 years and have three children. They have grown apart and have not had sex for several years. Wife decides to attend art classes at a nearby college. She takes an apartment there to allow her more time to study. She considers this a "trial" separation. She establishes a relationship with Winston, a wealthy stockbroker, telling him that she is divorced. When Husband discovers the relationship, he sues Winston for alienation of affections. Is Husband likely to be successful?

No. To recover for alienation of affections, Husband must prove: a valid marriage, defendant's wrongful conduct, an ensuing loss of consortium, and a causal connection between defendant's conduct and plaintiff's loss. Though Husband can prove teh validity of teh marriage, he will have difficulty establishing the other elements: -Winston had no intent to alienate Wife's affections because he believed she was divorced. -Husband's loss of consortium, as well as the loss fo Wife's affections, predated Winston's relationship with Wife and was not attributable to Winston's actions. -Most courts have abolished this cause of action because it is based on outdated views of marriage and divorce.

Janet and Peter have been married for 10 years. At the beginning of their marriage, Janet received a legacy of $100K upon the death of her mom. she purchased stock with the money and titled the stock in her name. When the couple divorces in a jurisdiction that has adopted the UMDA, will the court divide the stock between Janet and Peter?

No. UMDA follows a system of equitable distribution. According to UMDA, marital property includes property acquired by the parties *subsequent* to the marriage but does NOT include property acquired by gift or inheritance (which is considered each spouse's separate property), or property that is exchanged for separate property. Because Janet purchased the stock with property that was acquired by virtue of an inheritance from her mother, the stock will be considered Janet's property and not subject to division. Note that separate property merits different treatment under various property regimes. For example, in some community property states, courts exclude separate property (such as inheritances) from the division of assets, whereas other community property jurisdictions permit courts to include separate property in the equitable distribution of assets. Similarly, some non-community-property jurisdictions that follow equitable distribution also subject to division both separate and jointly-acquired property. UMDA and the majority of jurisdictions exclude gifts and inheritances from the equitable distribution of assets.

Are all state restrictions on the right to marry subject to heightened scrutiny?

No. Under Zablocki, "reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately imposed." Only those classifications that *directly* and *substantially* interfere with the right to marry will be reviewed under the strict scrutiny test.

Bob and Laura have been married for 24 years. They have 2 teenage kids. During the marriage, Laura was a traditional homemaker. Bob worked for a local telephone company. All their jointly acquired property is held in Bob's name. Their jurisdiction follows the title theory in the distribution of marital assets. The couple divorces, following a mutually-agreed upon separation. When the court awards all the marital property to Bob, Laura appeals. Will she be successful?

No. Under common-law jurisdictions that followed the title theory, each spouse is considered the owner of all property that is titled in his or her name. therefore, the court was correct in awarding all the marital property to Bob because all property was titled in his name. Today, however, the title theory has been replaced by equitable distribution.

Pauline and Peter's constant bickering leads them to begin discussing divorce. While their discussions are ongoing, Pauline begins a sexual relationship with Max, a co-worker. when Pauline and Peter ultimately decide to seek a divorce, they cannot agree as to custodial arrangements for their two children (ages 1 and 3). Pauline has been doing most of the childcare since the children were born. At a subsequent hearing, Peter asks the court to grant him sole custody. He argues that Pauline's adulterous conduct with Max renders Pauline an unfit custodian. Will Peter prevail in his argument that Pauline is unfit for custody because of her adulterous conduct with Max?

No. Under the majority view and the modern trend (as well as UMDA and ALI Principles), a parent's sexual conduct is not a factor in custody determinations unless the conduct has an adverse effect on the child. Here, provided that there is no evidence of adverse effect, Pauline's sexual relationship with Max should not result in a custody denial.

Husband is aware that Wife has had several extramarital affairs during the marriage (as has he). He arranges for a private detective either to engage in an intimate relationship with Wife or to hire persons to do so. Detective employs numerous persons, at least one of whom does engage in sexual conduct with Wife. Husband petitions for divorce on the ground of Wife's adultery. Will Husband's suit for divorce be successful?

No. Wife's claim of connivance constitutes a defense to Husband's claim of adultery. Husband intentionally provided opportunities for Wife's adultery.

May parents be prosecuted for failing to send their children to public school? What case?

No. Wisconsin v. Yoder holds that parents may not be prosecuted for violating compulsory school attendance laws if the educational needs of their children are otherwise met and continued public schooling would violate their sincere religious beliefs so as to seriously interfere with their right to practice the religion of their choice. Pierce v. Society of Sisters holds that A statute requiring children to attend public school violates the Due Process Clause of the Fourteenth Amendment. Though states have the power to regulate schools and education, in doing so they may not act so as to unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children.

Carl and Evelyn have been living together for several years. During this time, Evelyn never secured a divorce from her husband Jorge. Carl asks Evelyn to marry him. Evelyn accepts, indicating that she would marry him after she divorces Jorge. Several months later, Carl breaks off the engagement. In a jurisdiction that recognizes a cause of action fro breach of promise to marry, can Evelyn recover from Carl?

No. courts have held that the fact that either party was still married at the time of the engagement precludes recovery for breach of promise to marry. Some courts theorize that the party who is still married lacks capacity to enter into a subsequent marriage.

The day before their wedding, Carl tells his fiancee Evelyn that they are going to get a marriage license. Instead, he drives her to his lawyer's office, where he insists that she sign a prenuptial agreement as a condition of the marriage. Carl's attorney tells her that she has a right to obtain counsel. She has the opportunity to review the document but looks at it only briefly before she signs. Upon divorce, she claims that the prenup is invalid because of fraud and duress? Result?

No. the pressure tactics will not negate the knowing and voluntary nature of the execution because Evelyn had the opportunity to review the document and to retain counsel, but she chose to do neither. However, if the jurisdiction follows ALI's *Principles*, the agreement should have been signed at least 30 days before the marriage to raise a rebuttable presumption that the agreement satisfies the informed consent requirement. (Additional requirements to raise the presumption are that both parties had, or were advised to obtain, counsel and had the opportunity to do so; and, if one of the parties did not have counsel, the agreement contained understandable information about the parties' rights and the adverse nature of their interests.

Can a state refuse to grant a marriage license for failure to pay a fee?

No. the supreme court has held that restrictions on marriage based on poverty are unconstitutional.

Lucy lives with Allen for a year. They pool their earnings and expenses. They plan to marry but postpone the wedding date. In expectation of their marriage, they jointly purchase a home, taking title in both names. Again, they set the wedding date. Eight days before the wedding, Allen dies in an airplane crash, allegedly caused by defendant-aircraft company's negligence. Lucy sues the aircraft company to recover for wrongful death under a statute which permits "heirs" to bring the action. The statute defines "heirs" as those entitled to succeed to decedent's property based on the laws of intestacy. Will Lucy be successful?

No; Lucy will not succeed. The action is purely statutory, so Lucy will not qualify as a lawful spouse in order to bring an action for wrongful death purposes.

Meg is a yoga instructor. Ryan is a financial analyst. They are married and have a four-year-old daughter, Sarah. At the time of the divorce, Meg needs hospitalization for an operation. Ryan agrees to care for Sarah until Meg recuperates. In the divorce proceedings, Tom petitions for custody based on Meg's disability. Tom also argues that he should be awarded custody because he has superior financial resources and thus can provide Sarah with her own room and send her to private schools. Will Tom's arguments be successful?

No; Tom will not succeed. The court should accord no weight to Meg's disability. Although many courts and UMDA permit consideration of the parties' mental and physical health, courts generally focus on the effect of a disability on the child. That is, unless a parent's physical disability has harmful effects on a child, it should not be a decisive factor in custody decisionmaking. Ryan has presented no evidence here that Meg's physical condition has resulted in any harm to Sarah. In terms of Ryan's argument regarding his superior financial resources, the court should not give any weight to the relative wealth of the parties unless a party's lack of resources inhibits his/her ability to care for the child adequately. Therefore the court should not take into account Ryan's superior financial resources as a financial analyst compared to Meg's resources as a yoga instructor unless Meg is unable to provide adequately for Sarah.

Can a court place procedural preconditions on divorce actions that restrict judicial access to divorce claims? What case governs, and what were the preconditions in that case? What was the legal reasoning?

No; under the Due Process clause of the Fourteenth Amendment, courts cannot place procedural preconditions on divorce actions that restrict judicial access to divorce claims. The case was Boddie v. Connecticut, and the procedural preconditions were court fees that the state required Boddie, a welfare recipient, to pay before litigation could be commenced. Due process requires that a meaningful opportunity to be heard be given when rights claims are brought before a court, unless there is an overriding state interest. The interests of preventing frivolous litigation and resource allocation are reasonable, but are insufficient to override the interests in providing access to the judicial process. Moreover, other alternatives exist to achieve the same goals, such as penalties for false pleading and service of process by mail or posted notice.

When a woman who claims that she has been abused by her husband seeks a civil protective order, what notice and/or opportunity for a hearing does an alleged batterer get before the order is issued?

None. Such orders are issued ex parte (without notice to the batterer or an opportunity for a full adversary hearing).

What policy reason do states which recognize both express and implicit unmarried property disposition-on-dissolution agreements have for doing as they do?

Nonmarital parties often fail to have express agreements about support and/or property rights.

How are child support payments treated for tax purposes?

Nontaxable to the recipient, and nondeductible to the payor.

Norma resides with her boyfriend Ben in CA for several years. At one time they planned to marry, but they never got around to it. When Ben decides to move to WA, Norma decides to quit her job to accompany him in order to preserve their relationship. Norma is unable to find work in WA, so she files for unemployment compensation benefits. Her claim is denied on the basis that her leaving her employment to accompany her nonmarital partner does not constitute good cause. Norma appeals. Will her appeal be successful?

Norma will lose. Her claim was properly denied because she left her employment voluntarily and without good cause. The act of leaving employment to accompany a nonmarital partner does not normally constitute legally sufficient good cause (absent statutory authority). This case differs from MacGregor because here the relationship does not manifest sufficient indicia of family-like characteristic (there is neither a child nor plans to marry). Because Norma and Ben do not qualify as domestic partners, they do not come within statutory protection that would allow them to relocate together without disqualification regarding unemployment benefits.

Husband and Wife are both attorneys. Following their divorce, Father petitions to reduce his child support obligation, alleging that his income decreased while he trained for a new career in teaching. What case was this and what was the result?

Olmstead v. Ziegler (Alaska 2002). Trial court denied Father's request, finding that he was voluntarily underemployed and that he still possessed the same earning capacity. Trial court reasoned that, though Husband is free to change careers, his child should not be expected to finance his choice. Alaska Supreme Court affirmed, explaining that even if the career change were undertaken in good faith, Husband's statements that he was a failure at law were undermined by his failure to keep regular office hours and by his efforts to reduce his workload. Further, the state supreme court found that the trial court's conclusion that Husband's earning capacity had not changed was not clearly erroneous because the record showed that Husband previously earned as much or more than Wife as a lawyer and that his skills continued to allow him to match prior earnings if he chose to do so.

What was the traditional legal response to unmarried couples and what was it based on? What is the current legal regime's stance on unmarried couples?

Original legal response was punitive, based on the state's desire to uphold moral standards. Criminal sanctions were imposed for such "misconduct" in the form of penalties for fornication, cohabitation and sodomy. These laws continue to exist but are not enforced; were they to be enforced, they would likely be struck down under Lawrence v. Texas. Today, the Supreme Court has held that the constitutional right to privacy protects the individual against state interference in private sexual conduct between consenting adults.

In a state that allows fault-based grounds for divorce, Husband systematically and continuously abuses Wife, resulting in her hospitalization for anxiety-related disorders. After her hospitalization, she moves back to her home town, where she starts dating and banging an old flame. Wife seeks a divorce for cruel and inhumane treatment and presents evidence of her husband's cruelty. Husband has hired a private eye who has taken photos of Wife's dates, etc. with the old flame, and defends himself based on the contention that Wife has been guilty of adultery. What case? Result?

Parker v. Parker (Miss. 1988, similar facts). Court told the Husband that he cannot use the defense of recrimination based on Wife's adultery because her misconduct occurred only after the parties' separation. Note, however, that some jurisdictions do recognize fault-based grounds that occur post-separation.

Husband is charged with evasion of federal income taxes. At his trial, the government attempts to introduce testimony of Wife that Husband boasted of the crime to her one night while they were having dinner with Wife's sister. Husband moves to suppress Wife's testimony, asserting a privilege against the use of a spouse's adverse testimony. Will his argument prevail?

Perhaps. At common law, a spouse had a privilege to disqualify the other spouse from testifying adversely. However, in Trammel v. U.S., the USSC ruled that, as to communications made in the presence of third parties (such as Wife's sister), the privilege is vested in the witness spouse. Thus, if Wife chooses to give adverse testimony against Husband, she may do so. Many states have adopted the Trammel rule.

Sally and Samuel are married in a common-law fault-based jurisdiction. Samuel is a teacher. Sally operates a day care center. They have a son. After five years of marriage, Samuel divorces Sally when he discovers that she has been having an affair with a former boyfriend. The trial court grants the divorce to Samuel on the ground of adultery. When Sally appeals the denial of spousal support and property, will she be successful?

Perhaps. At common law, upon divorce only spouses who were innocent of marital fault were eligible to receive property or spousal support. Sally was guilty of marital fault because she committed adultery. Therefore, Sally's fault may bar her claims for property and spousal support. However, many jurisdictions today reject the role of marital fault in the determination of awards of spousal support and property division.

After 22 years of marriage, Barbara petitions for divorce and also sues Henry for IIED and NIED. She alleges that Henry was verbally abusive by criticizing and belittling her, being explosive and rageful (tantrums, but no assault), and tightly controlling all finances (i.e., refusing to let her write checks, giving her only $20 at a time for groceries and insisting on buying all of her clothes). Will Barbara be successful on her IIED/NIED claims?

Perhaps. For claims of IIED and NIED, courts generally require that a defendant's conduct be extreme and outrageous. Barbara will prevail if a jury finds that Henry's conduct (verbal abuse, rage, and controlling all finances) was sufficiently outrageous. The policy question is whether the allowance of interspousal claims for emotional distress in divorce actions reintroduces fault into the divorce process.

Charles and Yetta, both accountants, divorce when their daughter Helen is 15 years old. The court orders Charles to pay $600 a month as child support. Three years later Yetta seeks an increase in child support to pay for costs associated with Helen's college education. Helen is an excellent student and has just been accepted at a private college. Charles contends that an order of child support would unlawfully require him to support Helen past her majority. Will he prevail?

Perhaps. Traditionally, child support payments could not extend past a child's majority except in extraordinary circumstances (i.e. disability). However, an increasing number of states, by statute or case law, permit child support through college through a variety of legal or equitable doctrines. Depending on the law in this jurisdiction, it is possible that Yetta may be successful in her claim for Helen's post-majority support for college expenses. Several courts look to the followign factors: the child's aptitude, teh parents' financial resources, the parents' college background, and the family's expectations had the marriage remained intact. Because of Helen's excellent record and her parents' financial abilities and college backgrounds, it is possible that Charles will have to contribute to Helen's college expenses.

What is the historic treatment of prenuptial agreements and what is the policy behind it?

Prenuptial agreements that determined financial obligations in the event of DISSOLUTION were void as contrary to public policy. They were thought to facilitate divorce by providing inducements to end marriage and to denigrate the status of marriage. Premarital contracts that determined financial consequences upon DEATH were permitted.

Husband and Wife are Orthodox Jews, married in the ceremony of their religious community. Twelve years after marriage, they divorce. They subsequently reach a settlement agreement before a special referee as to financial matters. Wife seeks damages for IIED and seeks to have the settlement agreement set aside, alleging that it was brought about by husband's duress: he used knowledge of her desire for the Get to exact exorbitant financial demands. What case was this and what was the result?

Perl v. Perl (NY App. Div. 1987). Court orders a new trial on the allegations of duress, but held that Wife's counterclaim for IIED was properly dismissed, as tort liability in such cases should not be imposed because it would result in unconstitutional entanglement of courts in the exploration of religious beliefs.

What is the bare minimum relationship that a divorce court must have with the defendant to make orders determining financial rights and obligations? What case?

Personal jurisdiction over the respondent that comports with due-process minimum contacts. Kulko v. Superior Court (U.S. 1978)

Roland and Jenese are married because Jenese became pregnant with their son. One year later, after experiencing several instances of physical abuse by Roland, Jenese files a complaint seeking dissolution of the marriage. The court grants Jenese a divorce on the grounds of adultery, extreme cruelty and irreconcilable differences. Upon finding Roland had committed domestic violence, the court awards physical custody of their son to Jenese and provides Roland "closely supervised visitation. Roland appeals, claiming, inter alia, that the trial court erred when it found that he had committed domestic violence and Jenese had not. What case? What result?

Peters-Riemers v. Riemers (ND 2002). State Supreme Court affirmed, holding that, although Jenese might have struck, hit or scratched Roland during their relationship her actions were largely in self-defense and were far less serious in nature and degree than Roland's domestic violence.

What are the two big distinctions between premarital agreements and commercial contracts, and what is the reasoning behind them?

Premarital agreements are governed by stricter requirements. Rationale: Parties in commercial contracts are bound to the contract whether or not they understood the terms or whether or not the terms of the contract were reasonable. Example: Courts more frequently inquire into the fairness of the premarital agreement, whereas courts expect the parties to ordinary contracts to look after their own interests. Prenuptial contracts are more likely to result in a need for equitable intervention. Rationale: Prenups are executory (performance is in the future), so there is a higher likelihood that future circumstances may make them unwise or unfair.

Evelyn and Carl enter into a prenup under which each waives any future right to the other's property. Appended to the agreement is a general list of assets (i.e., "all shares of Ford," "all existing accounts at USAA in Carl's name," etc.) without valuations. At the divorce, Evelyn alleges that the agreement is invalid because it fails to provide full and fair disclosure of Carl's assets. What result?

Prenup will be found valid. Although courts require full and fair disclosure, they do not require detailed disclosure. It would be sufficient that the prospective wife know that her fiance is worth considerable money and that she is relinquishing certain rights.

Define the "tender years" doctrine.

Presumption which holds that the natural mother of a young child is entitled to custody unless the mother is found to be unfit. Courts have treated the tender years presumption as: -A rule requiring maternal custody if all otehr factors are equal. -A rule placing the burden of persuasion on the father to show that paternal custody is in the best interest of the child, or -A rule affecting the burden of proof that requires teh father to prove maternal unfitness.

What was the policy rationale for the tort action of criminal conversation?

Prevent husbands from having to support illegitimate children.

Barbara is a Polish national who lives in Washington State with David when she meets and marries Anthony. Barbara informs Anthony that she is looking for a husband so that she can remain in the U.S. Anthony asks her to marry him and she agrees. After a brief marriage to Anthony, Barbara files a petition for divorce. Anthony files a counter petition alleging the invalidity of the marriage based on fraud. He alleges that Barbara continued her relationship with David after her marriage to Anthony. Anthony contends that Barbara lied about her relationship with David so that Anthony would marry her in order to enable her to get permanent residency status in the U.S. Will Anthony's allegation of fraud be successful?

Probably not. A finding of fraud serves to vitiate consent to marry. Many courts hold that fraud (for annulment purposes) must go to the "essentials" of the marriage (generally pertaining to sexual intercourse or childbearing). Barbara's description to Anthony consisted of a false representation of her affection for him. Courts have held that such misrepresentations do not go to the essentials of the marriage. Barbara's second alleged misrepresentation concerned her desire to obtain status for immigration papers. Courts generally hold that concealment of the fact that one party married the other for the sole purpose of obtaining status for immigration purposes is sufficient misrepresentation to go to the essence in an action for annulment. However, Anthony's assertion that he would not have married Barbara had he known that she was marrying him to obtain permanent residency status is contradicted by the report. Hence, he cannot prove that she misrepresented the truth or that he relied on such "misrepresentation."

Name and explain the different tests for scrutinizing the constitutionality of state statutes, regulations, practices or policies.

Rational basis test. Restriction must be merely "reasonably related to a legitimate state objective." Intermediate Level of Scrutiny (SRIGO) Test. Restriction must be "Substantially Related to an Important Governmental Objective." Strict Scrutiny Test. Restriction must be "necessary to a compelling state interest" in order to survive constitutional challenge.

Gary and Diane are the divorced parents of thirteen-year-old Sandra. Prior to the divorce, Gary was charged with sexually molesting Sandra. The charges were dropped when Gary agreed to undergo psychological counseling. During divorce proceedings, Diane requests that the court deny Gary visitation rights because of the sexual abuse. Will she prevail?

Probably not. Courts are reluctant to impose a complete denial of visitation because the parent-child relationship is constitutionally protected. As a result, the trial court will probably restrict Gary's visitation rights by requiring supervised visitation (specifying the time and place for visitation) in order to protect Sandra.

Allison is 14 and a freshman in high school. She and her 21-year-old boyfriend Bobby wish to marry. However, Alison and Bobby know that Alison's parents will never consent because they believe that Alison is too young to marry. Alison decides to go to court to obtain judicial consent to marry, in hopes that she will not have to obtain her parents' consent. Is her strategy likely to be successful?

Probably not. Generally, minors must secure parental consent to marry, according to state law. However, several states provide taht for very young minors (such as Alison), both judicial consent and parental consent are required. If Alison resides in such a jurisdiction, judicial consent would not be sufficient. Either Alison would need to secure parental consent or wait until she obtains majority.

John, a police officer, is terminated by his employer after his employer learns that he practices plural marriage. He seeks declaratory and injunctive relief to determine that his state's laws prohibiting plural marriage are invalid and to enjoin their enforcement. He alleges that the discharge violates his constitutional rights. Will he be successful?

Probably not. Plaintiff's First amendment argument would not prevail based on Reynolds v. U.S. According to Reynolds, although the First Amendment dictates that government cannot interfere with religious beliefs, religious practices, such as bigamy/polygamy, do not merit the same constitutional protection. Plaintiff's argument that the discharge violates his constitutional right to privacy will fail because bigamy is distinguishable from the monogamous relationship protected by Lawrence v. Texas. The state could argue that it is justified, by a compelling interest, in upholding the discharge to protect monogamy that is rooted in history and tradition.

Harry and Wilma are both teachers. Harry decides that he wants to attend medical school. While Harry pursues his medical education, Wilma continues working as a teacher and contributes all her earnings to their joint support. Harry completes his medical education and residency. One year after he begins employment as a radiologist, he announces to Wilma that he wants a divorce. At trial Wilma presents expert testimony that the present value of Harry's medical license is $1M. The expert also testifies that the value of Wilma's contribution to Harry's medical education was $200K. Wilma contends that Harry's medical degree and license are marital property subject to distribution. The jurisdiction follows equitable distribution. Will Wilma prevail?

Probably not. The court must determine whether Harry's license or degree is "property" within the meaning of the state's equitable distribution statute. -Majority approach. The court will refuse to treat Harry's medical degree and license as marital property. However, even in a jurisdiction that follows the majority approach, Wilma may not be totally out of luck. She may have a claim, depending on case law or statute, that would reimburse her for her contributions and services during the time Harry was in medical school. If Wilma and Harry live in a jurisdiction that follows the ALI Principles, Wilma similarly will be unsuccessful in her effort to have Harry's medical license or degree characterized as divisible marital property. The ALI Principles adopts the majority rule and refuse to treat earning capacity as divisible property. Instead the Principles provides for "compensatory payments" to reimburse the supporting spouse for tee financial contributions made to the other spouse's education or training, provided that the education was completed in less than a specified number of years (set out in a rule of statewide application) before the filing of the dissolution petition. Because Harry completed his training shortly before he sought a divorce, Wilma would probably be successful in her effort to seek "compensatory payments" for reimbursement under the ALI approach.

Mark divorces Sylvia after a five-year marriage in order to marry Glenice. At the time of the divorce, Mark and Sylvia have one daughter, age 3. Glenice is a young widow who has been working part-time as a receptionist to take care of her three young children because her husband died from cancer. At the time of the divorce, Mark agreed to pay Sylvia $750 per month as child support. One year later, Mark requests a modification of his support obligation to $500 per month for the reason of his remarriage and additional financial responsibilities to Glenice and her children. This jurisdiction follows the modern (rather than common law) approach regarding the imposition of stepparent liability. Will Mark prevail?

Probably yes. Remarriage is a relevant consideration in the modification of support obligations if the remarriage places increasing demands on a payor's financial resources. Mark's remarriage to a woman with three children has resulted in substantial new financial obligations. Further, although at common law a step-parent had no legal duty to support a stepchild, many modern statutes and some case law impose liability on stepparents for co-resident stepchildren. Thus, because Glenice's three children reside with Mark and Glenice, Mark may have a statutory duty to support his stepchildren. Mark's request for a modification should be granted.

Atticus Attorney is retained to represent Cleo Client in a domestic relations matter. During Atticus's representation of Cleo, Atticus's wife files for divorce on several grounds including adultery. During Atticus's representation of Cleo, and while his own divorce action is pending, Atticus is observed leaving Cleo's residence at 0300 on a night that Cleo had custody of her minor child. In a disciplinary proceeding May Atticus be suspended from the practice of law?

Probably. Depending on the jurisdiction, a court might find that suspension is an appropriate disciplinary sanction for an attorney who engages in sexual behavior with a client after the attorney separates from his wife and while representing his client. Here, Atticus failed to inform the client of the possible negative implications of their sexual relationship on the issue of her retention of child custody.

Mr. and Mrs. Sears are employees of "Abbott House," a private nonprofit licensed by the state to care for neglected children. The Searses, their two kids, and 10 foster children (7 of whom are blood siblings) lease a home in an area of the city of White plains. The Searses, their children and their foster children live together as a family, and cook and eat all meals together. The city restricts land use to "single-family" dwellings, defining family as "one or more persons limited to the spouse, parents, grandparents, grandchildren, sons, daughters, brothers or sisters of the owner or the tenant or of the owner's spouse or tenant's spouse living together as a single housekeeping unit with kitchen facilities." the city seeks to enforce its zoning ordinance and to enjoin the Searses' use of their home in this way. The Sears family challenges the city's actions. Will they be successful?

Probably. The group home manifests permanency and constitutes a single housekeeping unit within the meaning of the ordinance. The group home promotes family values and is therefore analogous to a traditional family unit. Moreover, case law would support recognition of the group home's claim because the home is more analogous to the extended family of Moore (grandmother's purpose was to take care of her grandchildren) than to the transient college student commune of Belle Terre.

Husband is admitted to the hospital for treatment for the final stages of colon cancer. Wife gives her authorization for Husband's medical treatment, although only Husband promises to pay for all medical services to be rendered to him. Upon Husband's death, the hospital sues Wife for Husband's medical care. The hospital argues that the state's codfication of the common-law duty of a husband to provide necessaries is unconstitutional and that the liability should extend to the wife based on the modern view of marriage as a partnership. Is Wife liable?

Probably. Wife may be held liable for Husband's necessary medical expenses. At common law, the husband had a duty to pay for the wife's necessaries, including medical care. Because of successful constitutional challenges to this doctrine (based on equal protection doctrine), states now adopt a variety of approaches, either by case law or statute, to avoid this form of gender-based discrimination. Some states have abolished the doctrine; others expand liability to both spouses. The emerging trend is to impose primary liability on the serviced spouse (i.e. to make the creditor seek payment first from the serviced spouse's estate, and, if unable to collect, then from the other spouse). Depending on the approach this jurisdiction follows, Wife may incur liability.

What is the rationale behind treating professional licenses and degrees as marital property? What has been the issue with this? What is the majority rule regarding this issue?

Rationale: During many marriages, one spouse contributes earnings and services while the other goes to obtain a professional license or degree. The supporting spouse provides the goods and services in the hope that both partners will benefit subsequently from an enhanced standard of living. Issue: Characterization of a license or degree as property often involves a question of interpreting statutes which are written in a way such that it isn't clear that non-tangible, non-monetary property is considered "property" within the meaning of the statute. Majority rule: almost all states refuse to treat professional licenses and degrees that represent a spouse's enhanced earning capacity as marital property. Note, however, that there is a minority that does treat such licenses and degrees as marital property.

In one sense/area, judicial recognition for torts involving interference with the husband/wife relationship is expanding. In what are is this, and how is it expanding?

Recognition of damages for loss of consortium are expanding, since the modern trend has been to extend the action to permit wives to recover. See Rodriguez v. Bethlehem Steel (Cal 1974), in which it was held taht a wife could sue for loss of consortium due to her husband's having been injured because of his employer's negligence.

What is the policy rationale behind no-fault divorce?

Recognition of the fact that divorce is not caused by a party's "fault," but rather that divorce is caused by a gradual breakdown in the marital relationship. As a result, neither party should be punished in the dissolution process.

What was the major reform of the Uniform Premarital Agreements Act?

Required a higher standard than was previously used to find a prenup unenforceable.

Strict Scrutiny Test

Requires that the challenged regulation or practice be necessary to a compelling state interest.

What are the elements of the proto-"no fault" divorce ground of "living separate and apart?"

Separation for a statutorily-designated period of time.

What is one method by which several jurisdictions have recently begun to facilitate post-separation problems for non-birth parents raised by gay couples?

Several jurisdictions now permit adoptions by non-birth parents in gay relationships. Courts also are showing receptiveness to visitation rights to sperm donors of children born in lesbian relationships.

What must a battered spouse show in order to establish that she has a "special relationship" with the state such that the state has an affirmative duty to act in protecting her?

She must show that the state: 1. assumed an affirmative duty to act on her behalf; 2. has knowledge of the consequences of inaction; 3. has direct contact with the injured party; 4. incurred the injured party's justifiable reliance on the state's affirmative undertaking. NOTE: In DeShaney v. Winnebago (U.S. 1989), the USSC severely limited the "special relationship" exception under which the state has an affirmative duty to protect battered women, at least in the substantive due process (life, liberty, or property) context, when it held that no special relationship exists between a child protective services agency and an abused child, even though the agency was investigating the family and was aware of the continuing abuse.

We're in a jurisdiction that allows fault-based divorce. Husband is prone to cursing, abuse, violent outbursts of temper, physical assaults, destruction of furniture and indifference to his wife. Wife can't take it any more and flees. Husband seeks a divorce on the basis that Wife deserted him by leaving their home. Other than cruelty, what should Wife's cross-clam/defense be?

She should argue constructive desertion; in other words, she should argue that her departure was justified because of Husband's cruelty.

Husband and Wife have been married for 18 years. they have two children. Wife refuses to follow Husband when he decides to move to another city in the state for business reasons. The wife files for divorce, but the court denies the Wife alimony because of her "desertion." Trial court finds that she was not free from fault because her refusal to follow Husband violated a state constitutional provision that requires a wife to follow a husband wherever he choses to reside. Wife appeals. What argument should she make and how is the court likely to find?

She should argue that the provision of the state constitution in question is unconstitutional as a violation of equal protection by forcing wives, and not husbands, to comply with their spouse's change of domicile.

State statute requires a married woman to use her husband's last name to obtain a driver's license. Woman driver challenges the statute. What result?

She would likely lose. In Fobrush v. Wallace, the SCOTUS affirmed without opinion a Federal district court's upholding the constitutionality of the statute, stating that it was rationally related to the legitimate state interests of administrative convenience.

Margaret and Edward marry and live together in MA. Following marital strife, Margaret takes their two kids to FL, allegedly for a visit. Wife files for divorce in FL on the ground of cruelty. Husband retains FL counsel and enters a general appearance to deny the allegations. The FL court grants the divorce. Margaret remarries. After two months in FL, the new couple returns to MA. Edward files an action alleging that the FL decree is invalid and Margaret's subsequent marriage is void. What case is this and what result?

Sherrer v. Sherrer (U.S. 1948). USSC held that the divorce decree was valid and comported with due process. USSC reasoned that, unlike in Williams, the finding of jurisdiction in this case was made in a proceeding in which the husband appeared and participated. Full Faith and Credit requires recognition of a decree rendered by a court that has jurisdiction over both parties.

Wife tells Husband that she is going bowling. Husband notices that Wife's diaphragm is missing. His suspicions are further aroused when Wife refuses to have sex with him. He hires a private detective who observes Wife kissing a man in a parked car in a wooded, deserted area. Detectives note that her car did not return until early in the morning. Wife petitions for divorce. Husband defends, alleging that Wife committed adultery. Wife's alibi is unconvincing. Wife loses and appeals. What result?

Should be affirmed. For all of the fault-based divorce grounds but adultery, corroboration is required. Because adultery occurs in private, circumstantial evidence is permitted for that ground. Moreover, though jurisdictions traditionally required acts of sexual intercourse to constitute adultery, modern cases permit a lesser showing of non-coital acts.

Husband complains that he is prepared to comply with NY's "Get" statute, but that Wife refuses to accept the "Get" due to the fact that he obtained for himself an alternative--a rabbinical court order (a "heter") that permitted him to remarry without giving a "Get." Wife claims that to obtain the "heter," Husband made allegedly defamatory statements about her fitness as a mother in the rabbinical court and that the "heter" therefore had the practical effect of preventing her remarriage by tarnishing her reputation. Wife insists that Husband disavow the statements. What case was this, and what result?

Sieger v. Sieger (NY App. Div. 2007). Court ruled that, while a court has jurisdiction to require a spouse to remove obstacles to remarriage under the "Get" statute, the First Amendment entanglement clause proscribes a review of the couple's religious dispute.

What is the problem with the practice of husbands granting the important "Get" document in the Orthodox community?

Some husbands have used the threat of denying their wives the "Get" to extract financial concessions from them.

What is the difference between how sole custody orders versus joint custody orders are treated for modification purposes?

Some jurisdictions that require a substantial change in circumstances for modification of joint custody orders require only that the change be in the best interests of the child when asked to change a sole custody order to a joint custody order. Some courts do not require a substantial change in circumstances if the requested modification is a rearrangement of parenting time in a joint physical custody schedule.

What is the role of ADR in divorce law?

Some separation agreements have arbitration provisions, which require the parties to submit future disputes to an arbitrator prior to initiating court action. Some states enforce such agreements; a few maintain that arbitrating custody and visitation disputes violates public policy. Parties sometimes engage in divorce mediation whereby they themselves, with the help of a mediator who facilitates, resolve their own disputes. A few states have mandatory mediation for divorcing parties.

Carl is married to Evelyn when he deploys to Afghanistan. After a helicopter crash, Carl is declared MIA. During the five years after the crash, Evelyn starts dating again and marries Bob. Six years after the Crash, Carl is found in a makeshift cell during a raid of a Taliban camp. He is repatriated. Infuriated, and perhaps psychologically affected by the confinement, he tries to have Evelyn prosecuted for bigamy. The cops and DA play along, and Evelyn is charged. What result?

Some states have what are known as "Enoch Arden" statutes providing a defense to bigamy charges for spouses who remarry in good faith based on a belief that a priror spouse is dead. These statutes do not validate teh subsequent marriage. Rather, they permit a spouse to remarry without criminal liability after a specified time period (usu. 5 years in the U.S.).

Where does fault still have relevance in modern divorce law?

Some states still consider fault to be relevant in the division of marital property and in the determination of spousal support. Note that the UMDA precludes consideration of marital misconduct as a factor in property division or spousal support. Many courts have begun to recognize interspousal tort suits for some forms of marital misconduct such as battery and IIED. Note that the standard of conduct to meet the IIED cause of action is high though, usually described as "extreme" or "outrageous," and is not satisfied by mere adultery or insults.

Wife separates from Husband in NY and moves with her kids to Iowa. A month after moving she petitions an Iowa court for a divorce. Husband, who was served with notice during a visit to Iowa to see the children, contests jurisdiction. The Iowa court dismisses Wife's petition on jurisdictional grounds, as Husband is not a resident of Iowa and Wife failed to satisfy the durational residency requirement. Wife appeals, contending that Iowa's one year residency requirement is unconstitutional as a violation of her right to travel. Case and result?

Sosna v. Iowa (U.S. 1975). Supreme Court held that Iowa's residency requirement is constitutional because it minimizes the susceptibility of a state's decrees to collateral attack and avoids one state's interference in matters in which another state has an important interest. Moreover, Iowa's residency requirement does not foreclose a plaintiff's access to the courts, but merely delays it.

Do indigent parents have a right to counsel in divorce proceedings based on state constitutional or statutory law? Give example cases to substantiate your argument

States are divided on this issue. -In King v. King (WA 2007), the court held that a parent's due process right of access to the courts under the state constitution does not include a right to publicly funded counsel in a dissolution action. -In Sholes v. Sholes (Ind. 2001), a state statute imposed a mandatory duty on the courts to appoint counsel for civil litigants who met the statute's requirements. The state supreme court determined that the statute required appointment of paid-for counsel for indigents in divorce actions.

Karen and James marry in Nebraska. Several months later, the parties execute a property settlement agreement and divorce. Despite the legal dissolution of their marriage, they continue to reside together. On various documents they refer to each other formally as spouses. Eighteen years later, James moves out and Karen files an action alleging her ignorance of the status of the marriage and seeking to be declared a putative spouse for purposes of equitable distribution. Result?

State court likely to hold that the putative spouse doctrine is not available as a basis for alimony and property division because the doctrine applies to an invalid marriage whereas these parties' marriage was valid during its duration.

At common law, annulment resulted in bastardizing any children born during the relationship. Is this still the case?

Statutes have modified this harsh result. See Uniform Marriage and Divorce Act, which provides that children who are born to a void marriage are legitimate.

How has the method of determining child support changed?

Statutory guidelines have replaced discretion as the modern method of determining child support.

Mike has been living with his gay partner Lou in a rent-controlled apartment for 11 years. After Lou dies, the building owner tells Mike that because Lou was the tenant of record, Lou must vacate the apartment. The city has eviction regulations which provide protection from eviction to either the "surviving spouse of the deceased tenant or some other member of the deceased tenant's family." Mike seeks to enjoin the owner from evicting him. Although the term "family" is not defined by the code, Mike maintains that he qualifies as a member of Lou's family within the meaning of the regulations. Assume that the court finds Mike's testimony convincing. What might they decide and how might they rationalize it?

Such a court would be like that in Braschi v. Stahl Assocs. (NY Ct. App. 1989, identical facts). That court declared taht the term "family," as used in the rent control laws, should not be limited to marital or adoptive relationships. Legal protection against sudden eviction should "find its foundation in the reality of family life." Courts should determine entitlement based on an examination of the parties' relationship, including (but not limited to): -The exclusivity and longevity of the relationship; -The level of emptional and financial commitment; -The manner in which teh parties conduct their lives and hold themselves out; and -The reliance the parties place on each other for daily family services.

What is the legal effect of a marriage involving an underage party?

Such a marriage lacks consent due to nonage and may be annulled.

What is the effect of an injured party proving the existence of fraud while seeking an annulment?

Such proof renders a marriage voidable (rather than void) at the request of the injured party.

For tax purposes, how are transfers or property between spouses treated?

Such transfers are treated as gifts to the recipient, and are therefore excluded from the recipient's income. Moreover, the recipient takes the donor's basis in the property.

Sue Smith, who is secretary to the police chief, marries a police officer. Sue is transferred to a clerk typist position in another department. Her boss claims that he transferred her because he was afraid that her marriage would interfere with her ability to maintain the confidentiality required by his office. What constitutionality arguments should be made on Sue's behalf to challenge the transfer? What counter arguments could be expected?

Sue should argue that the governmental action burdens her constitutional right to marry. She would therefore argue that the policy is subject to strict scrutiny and cannot be shown to be narrowly tailored to serve a compelling government interest. The police chief would counter that the policy did not deny her right to marry and that the transfer was necessary to serve a compelling government interest in teh effective functioning of the police department (by preserving confidentiality in such matters as discipline and access to private information).

What is the guiding principal of the "community property" marital property regime?

That marriage is a partnership.

What is a common response on the part of state courts in response to arguments that a state's refusal to grant same-sex couples marriage licenses is a violation of the couple's right under the state constitution to due process?

That same-sex marriage is not a fundamental right entitled to due process under the state constitution because it is not deeply rooted in tradition and history. Lewis v. Harris (NJ 2006), Baehr v. Lewin (HI 1993), Andersen v. King County (WA 2006, took the further step of stating that the right of privacy in personal autonomy does not encompass a right to same-sex marriage).

Name and describe the ALI Principles' approach to making child custody decisions.

The "approximation" approach requires a party seeking custody to submit a "parenting plan" (a written agreement by which parents specify caretaking and decisionmaking authority and the manner for resolution fo future disputes). If the parents agree, the court should enforce that agreement unless it was not voluntary or would be harmful to the child. If parents cannot agree, teh court should award custody on an *approximation standard* that bases custody on the amount of responsibility assumed by each parent prior to teh separation. The objective is to erplicate teh division of custodial responsibility that was followed when the family was intact.

What's an exception to Crawford's tight restrictions on out-of-court hearsay?

The "forfeiture by wrongdoing" exception. One who obtains the absence of a witness by wrongdoing (homicide, assault/battery, coercion) forfeits his/her constitutional right to confrontation.

Describe the "materiality" test for determining whether an annulment based on fraud should be granted.

The "material" or "but for" test requires that the plaintiff would not have married the defendant had the plaintifff known of the misrepresentation. generally, misrepresentations of health, wealth and status are not legally sufficient grounds for annulment.

What federal legislation was passed to allow states to enforce child support orders against out-of-state residents? How did it accomplish this objective?

The 2000 Full Faith and credit for Child Support Orders Act required that states enforce the child support orders of other states. It did this by: o Requiring that a state enforce the child support order made by a court of a nother state, provided that teh court has subject matter jurisdiction and personal jurisdiction over the parties; o Limiting modification of child support orders; o Requiring that the forum state's lwa apply in proceedings to establish, enforce or modify support orders, unless the court is merely interpreting the support order (in which case the law of the originating state applies); o providing that the longer of two different statutes of limitations will apply in enforcement actions.

Name one available method of attacking antinepotism policies on federal grounds?

The Civil Rights Act of 1964, Title VII of which prohibits discrimination based on sex. Since antinepotism policies disproportionately affect women, the argument can be made that these are "disparate impacts" prohibited under Title VII jurisprudence. Although the policies are facially neutral, they adversely affect a particular class of employees (women).

What is the rationale behind the Supreme Court's rejection of the defense to polygamy charges that such practices are required by the defendant's religion? What case?

The Court held in Reynolds v. U.S. (U.S. 1878) that the First Amendment dictates that government cannot interfere with religious *beliefs,* but that religious *practices* do not merit the same constitutional protection.

On the night before their wedding, Carl presents Evelyn with a prenup that precludes her right to alimony and that treats all property acquired during the marriage as separate property. Evelyn signs after Carl threatens that he would not marry her otherwise. At divorce, Evelyn challenges the agreement on the ground of duress. What result?

The Court would probably hold that the groom's threat did not constitute legally sufficient duress. Most courts reject the view that presentation of a prenup in close proximity to the wedding day constitutes duress.

What are "natural death acts"? What are their connection to marriage?

They are statutes that permit a competent person to decide, via a "living will," whether life-sustaining procedures should be utilized if the person becomes incompetent. Many of these acts give spouses the priority to decide whether life-sustaining procedures should be utilized if the person becomes incompetent, if the patient has not executed a living will.

Carl and Evelyn both live in NY. They meet on the internet. Carl says he's divorced online, but he's actually married. The two date for a while. One weekend, they take a trip to SC, during which Carl proposes. The couple lives together in Carl's NYC apartment. Evelyn breaks up with Carl when she suspects that Carl is seeing other women. Carl files suit in NY for the return of the engagement ring. Evelyn counterclaims for breach of promise to marry, which is not a recognized cause of action in NY, but is in SC. What result?

The NY court would dismiss Evelyn's counterclaim, based on the state statute banning suits fro breach of promise to marry. NY's anti-heartbalm statute actually contains the words "whether such action arose within or without the state." The Court would also rule that, because Carl was also married when he proposed, the agreement to marry is void as against public policy.

What approach does the Restatement (Second) of Conflicts take regarding which laws govern validity of a marriage when the laws of the place of residence and place of celebration conflict?

The Restatement modified the general rule, holding that, in the absence of a statutory directive as to choice of law, the validity of marriage is determined by the state which has "the most significant relationship to the spouses and the marriage." Relevant factors in the application of this rule include: the policy of the forum state and the protection of the parties' expectations. Thus, the state's interest depends on the purpose to be achieved by the rule and the relation of the state to the marriage and the parties.

Do cohabitating unmarried couples have a fundamental right or a substantive due process interest in freedom from state intervention in their ability to live together?

The Supreme Court has not answered this question. Some state courts have extended the USSC's refusal to recognize communal families (Belle Terre) to unmarried cohabitating couples by denying constitutional protection to their living arrangement when threatened by zoning ordnances.

Why are state restrictions on the right to marry subjected to strict scrutiny?

The Supreme Court treats the right to marry as part of substantive due process ("liberty"), and as part of the "fundamental rights" branch of equal protection. Therefore, classifications that infringe upon fundamental rights trigger strict scrutiny in the same matter as do suspect classifications.

Carl is the widower of a woman who perished during military service in Iraq. He therefore collects survivor benefits, which he expects to collect for the rest of his life. Three years after his late wife's death, Carl meets and falls in love with another woman who is a millionaire. They date for three years and decide to marry. After their marriage, Carl learns that his survivor benefits have been reduced. He files suit, arguing that this has penalized his decision to enter into the marriage relationship. What result?

The Under Califano v. Jobst, the Court upheld the constitutionality of a Social Security provision that penalized marriage by the loss of benefits. According to Zablocki a legal obstacle to marriage is only unconstitutional if it *directly* and *substantially* interfere with the right to marry. Under this standard, a mere statutory penalty that results in an individual's loss of public benefits because of the marriage does not meet the "directness" element in the way that a legal *obstacle* does. Furthermore, the ban on marriage in Zablocki was total (meeting the "substantiality" requirement); there is a total prohibition from marriage, which only the state can provide. Here the loss is merely that of some money every month.

Carl, a rich and famous guy, marries Evelyn at the beginning of his career. Carl insists that Evelyn sign a prenuptial agreement providing that each party's earnings and acquisitions remain separate property. Evelyn voluntarily signs it, evincing understanding of its subject matter. When they separate, he is earning $8 million. Evelyn alleges that the agreement was not executed voluntarily because she did not understand it and was not represented by counsel. What result?

The agreement would be upheld as valid. In most states, representation by counsel is only one of several factors to be considered. There is evidence that Evelyn understood the agreement and executed it voluntarily.

If a gay couple or just the plaintiff moves to a state that refuses to terminate their marriage, domestic partnership or civil union, what is an alternative to getting a dissolution? Give an example case.

The alternative is for the court to recognize the partners' contractual claims against each other. Gonzalez v. Green. In that case, the two men were NY residents that got married in MA, even though MA law holds that only MA residents could take advantage of the state as a place to get married. The men tried to divorce but were told their marriage was void. They instead executed a separation agreement. After the NY statute banning same-sex marriage was upheld, the Defendant in the divorce sought a declaration that, because the parties never validly married, the separation agreement was void and all property transferred thereunder must be returned to him. The court refused to rescind the separation agreement, stating that NY had long recognized the enforceability of express contracts between unmarrried cohabitants provided that illegal consideration is not part of the agreement.

Husband was brought up on federal bank robbery charges. Wife is made to testify and asked what she observed her husband doing in the hours after the bank robbery. She says that she saw Husband and a co-defendant counting a large sum of money. Husband is convicted. He appeals, citing the marital communications privilege. What result?

The appeal will not be successful. The marital communications privilege does not apply to exclude a witness-spouse's observations, only her communications with the defendant.

Theresa marries co-worker Dave. Thereafter, their employer informs them that one spouse must resign or both will be terminated pursuant to the company's antinepotism policy. Theresa resigns and brings an action for wrongful discharge, alleging that her dismissal violates th public policy favoring marriage. Employer defends, contending that the regulation does not violate public policy, or any constitutional or statutory rule, and is based on legitimate business reasons.

The court would likely be unconvinced by terry's argument that applying the rule violates state policy favoring marriage and would probably hold that a no-spousal policy is not based upon marital status (reasoning that it does not limit employment to unmarried persons).

What is a problem associated with polygamy, and what has been done in Utah to deal with it?

The associated problem is that child sexual exploitation is often associated with polygamous practices. To address this problem, the Utah legislature enacted legislation that increases the penalty for bigamy involving teenage brides.

When did divorce laws substantially change in the U.S.? Where did the change start, and what was the change (in two sentences)?

The change started in the late 1960s, with the advent of "no-fault" divorce in 1968 in California. In 1974, the Uniform Marriage and Divorce Act permitted no-fault divorce, and made marital misconduct irrelevant to issues of spousal support, property distribution or custody. Since 1974, many states have adopted a no fault system either in whole (by replacing their fault-based systems completely with no-fault regimes) or in part (by superimposing no-fault onto fault-based grounds.

Describe the common law interspousal immunity doctrine (tort) and its basis.

The common-law interspousal immunity doctrine is based on the legal fiction of marital unity. It barred tort actions between husbands and wives such that a husband could not sue her husband or vice versa at common law either for negligence or an intentional tort (such as assault).

What is the current trend regarding fault in divorce.

The completed trend is to permit no-fault dissolution. All states now have some form of no-fault dissolution. There is now a current movement to re-introduce fault in the dissolution process. Covenant marriages are a reflection of that movement and permit dissolution only on fault-based grounds.

Describe the change in the conception of family that started in the 1960s, and how it has changed family law.

The conceptual change: The idea that the nuclear family is a biological given, with assigned roles to men (dominant breadwinner) and women (submissive homemaker), and with the principal purpose of procreation, became increasingly unpopular. Family began to be seen as a means of personal fulfillment and companionship. Results of the conceptual change: -When a marriage began to fail to meet parties' expectations, it became accepted that the parties could and should seek fulfillment elsewhere. -Household arrangements other than the nuclear family which served the same ends of companionship and fulfillment, such as gay and straight cohabitation, became more accepted.

Describe the cohabitation requirement for establishing a common-law marriage.

The couple must cohabit in a jurisdiction that recognizes common-law marriages. Statute and case law fail to require a specific period of cohabitation. The couple's duration in the common-law jurisdiction may be brief, although some courts require that visits be longer than a day or two.

What happens financially upon divorce?

The court divides the spouses' property and may award spousal support and child support, absent agreement between the spouses.

Jack and Diane live together for several years. Diane becomes terminally ill and is hospitalized. The day before she dies, the hospital chaplain performs a marriage ceremony for the couple. Although aware that a marriage license was required, the parties do not obtain one because of her imminent death. In fact, the state has a law which specifically making a marriage invalid without a license. After her death, Jack claims an interest in her estate as her surviving spouse. Her executor challenges his petition ont eh ground that the marriage was not valid because the parties failed to obtain a marriage license. Outcome?

The court would be likely to find that, based on the statutes governing marriage, the issuance of a marriage license is a mandatory requirement for a valid marriage in that state and would therefore deny his petition to qualify as a surviving spouse.

Defendant married 15-year-old Edith. They separate after a few months. Without securing a divorce or annulment, Defendant marries Sarah. Following his conviction for bigamy, Defendant appeals. Result?

The court would likely determine that Defendant may be legally convicted of bigamy because his marriage to Edith was voidable for nonage and because he never secured an annulment.

A hospital sues Wife (and Husband's estate) for services rendered to Husband during his last Illness. Plaintiff contends that the common-law rule requiring Husband to pay for Wife's necessaries should extend to Wife, based on modern notions of womens' increased independence, marriage as a partnership and equal treatment. Under the emerging trend, how would the court find?

The court would hold that both spouses are liable for the necessary expenses incurred by either. However, In the absence of spousal agreement to undertake the debt, creditors should attach the assets of teh spouse incurring the debt; only if those assets are insufficient should the creditor be permitted to reach the other spouse's assets.

What level of agreement must parents achieve before joint custody may be awarded?

This differs from jurisdiction to jurisdiction. 1. Some jurisdictions grant joint custody upon teh request of only one party. 2. Other jurisdictions require parental agreement. 3. Yet other jurisdictions permit joint custody at the court's discretion (even over parental objection).

Sandra begins dating Dave, a CA baseball player. The couple spends time in CA, NJ and TX (the only one of the three states recognizing common-law marriage). After Sandra becomes pregnant, Dave tells her that he wants to have a private ceremony. Sandra makes a reservation at a hotel, and they stay in the "honeymoon suite." Subsequently, she informs her mother that they are married. they rent a condo with Dave's name on the mailbox. Sandra continues to use her maiden name, with which she signs the baby's birth certificate. Sandra does not wear a wedding ring, and files income tax returns and health insurance forms as single. Sandra files for divorce, claiming that she is Dave's common-law wife. Outcome?

The court in such a case, if like the Tx court of appeals in Winfield v. Renfro, would hold that the couple has failed to establish the requisite element of "holding out" for establishing the existence of a common-law marriage.

In the current era what determination may decide whether a federal court exercises jurisdiction over a nonmarital property-sharing agreement?

Today, post-Ankenbrandt, assertion of federal court jurisdiction may depend on whether the federal court perceives the cohabitants' claims as based more on contract law, or on domestic relations law. Federal courts may refuse jurisdiction if they perceive cohabitants' disputes as quasi-marital status claims.

Disputes often arise when a custodial parent, for work, remarriage or educational reasons, decides to move away from the locale in which the noncustodial parent lives. When the noncustodial parent challenges the move, what decision must a court make, and using what standard?

The court must decide whether to permit the move. In determining whether to permit the move, courts use different standards, depending on the jurisdiction: o Strictest Standard. Requires a showing of "exceptional circumstances" before a court will permit the move. o Some courts adopt a custodial-parent presumption favoring the custodial parent's right to relocate. o Modern Trend. Adopts the best interests tests that take into account all relevant facts, including: --reasons for the move --future quality of life in the new locale, and --feasibility of an alternative visitation schedule for the noncustodial parent. o ALI standard. Primary custodian should be permitted to relocate so long as the relocation is "in good faith for a legitimate purpose" to a location that is reasonable in light of that purpose. Relocation justifies a change of custody only when it "significantly impairs" either parent's ability to exercise responsibilities under a parenting plan.

An employee requests and is granted pregnancy leave, which is without guaranteed reinstatement according to company policy, and in compliance with state law. The employer gives birth and returns to find out if her job has been taken. It has, so she files for unemployment while looking for work. State statute disqualifies claimants who leave their jobs "voluntarily without good cause [for reasons] attributable to the work or employer." The State Division of Employment Security denies her claim. Employee appeals, alleging that the state statute violates federal standards, as the Federal Unemployment Tax Act prohibits denying claims on the basis of pregnancy. What result?

The court would hold that federal standards do not prohibit a state from denying unemployment compensation to claimants who leave their job because of a pregnancy, if a state imposes similar treatment on all claimants who leave employment for reasons not connected to their work or employer.

Under the traditional treatment which courts accorded to gay ex-partners in custody disputes, how would the following case be decided? What cases? Nancy and Michele decide to have children by artificial insemination. Nancy is artificially inseminated and gives birth to two children. Michele is listed as the "father" on each child's birth certificate. both children are given Michele's surname. The children refer to both women as "mom." After Michele and Nancy separate, one child lives with Nancy, and the other with Michele. After three years, Nancy petitions to change the custody arrangement, arguing that Michele is not a parent under the Uniform Parentage Act and that Nancy is therefore entitled to sole legal and physical custody. Michele argues that her status as a psychological parent entitles her to seek custody and visitation.

The court would affirm the award of custody to Nancy. The court would reason that: -Even if Michele establishes that she is a de facto parent, custody can be awarded to her only if it is established by clear and convincing evidence that parental custody is detrimental to the children. -Court would have refused to extend "loco parentis" to a gay partner. -Equitable estoppel has never been invoked against a natural parent in a custody or visitation determination. -Court would have refused to adopt a functional definition pf parenthood. Nancy S. v. Michele G. (Cal App. 1991) Titchenal v. Dexter (Vt. 1997)

Jessica Spero and Dave Heath have a nonmarital child, Ella. Before Ella's birth, the parents' relationship ends, and Jessica tells David that he is not Ella's father. Jessica gives Ella her surname. After a paternity test confirms that Ella is David's child, David files a petition to change Ella's surname from Jessica's to his. What result?

The court would likely determine that he name change is not in the child's best interests. The court might find otherwise if: 1. The mother had abandoned the child; 2. The mother had engaged in misconduct sufficient to embarrass the child by continued use of the mother's surname; 3. the child would suffer detriment by bearing the mother's surname; or the child was sufficiently mature to choose her own surname and chose her father's name.

Two judges marry one another. Upon the wife's death, the husband begins receiving a surviving spouse allowance as part of his wife's retirement benefits. The surviving judge remarries and, pursuant to the terms of the retirement package's terms, the allowance terminates upon the judge's remarriage. The judge files a complaint with the state human rights commission. Citing a state civil rights statute that prohibits employment discrimination, he alleges that the city engaged in a discriminatory employment practice by terminating the allowance on account of his marital status.

The court would likely dismiss the complaint, ruling that the husband lacks standing because the civil rights statute focuses on employers' hiring and firing regarding, inter alia, employees' marital status but does not address individual interests (such as receipt of retirement benefits) that fall outside the scope of this relationship.

Plaintiff married Defendant based on him representing himself as a practicing Orthodox Jew. The marriage is consummated. When Plaintiff discovers the defendant's fraudulent misrepresentation, she seeks an annulment. Assuming the court applies the "strict test" to requests for annulment of a marriage based on fraud, what result?

The court would likely hold that Defendant's fraud goes to the essentials of the marriage because Plaintiff could not perform her duties as a wife and mother, following her religion, without believing that her husband shared her religious beliefs.

Judy marries Dan Natale, a school administrator. Dan does not want to list his home phone number due to his job. His wife, who is an attorney, wishes to do so. Judy requests a judicial name change to Judy Natale Montague (the latter of which names was not her surname prior to marriage). The trial court denies the petition based on possible detriment to third parties. Judy appeals. What result?

The court would likely hold that Judy may change her name since no evidence was presented of harm to third parties (husband consented, possible harm to future offspring is too speculative, no harm to state shown).

Mary Stuart (plaintiff) marries Sam Austall. Before the marriage, they orally agree that she will retain her birth name. Mary registers to vote using her birth name but indicates that she is now married. The voter registrar (defendant) notifies her taht her voter registration will be cancelled unless she assumes her husband's name. Defendant voter-registrar cancels her voter registration when Sam fails to re-register. Mary challenges Defendant's action. What result?

The court would likely hold that Mary is entitled to continue to retain her birth name, following her marriage, if she shows that she consistently and non-fraudulently used that name.

Clara marries and divorces Ed. She is awarded $200 per month of spousal support. A state statute provides for the termination of support payments upon Clara's remarriage. Clara remarries to a guy named Calvin. That marriage is annulled because of Calvin's fraud. Clara petitions for restatement of spousal support from her first husband Edward. What result?

The court would likely hold that annulment of a voidable second marriage does not entitle a wife to reinstatement of spousal support from the first husband provided that statutory authority exists that terminates alimony upon the recipient's remarriage. The prior husband has the right to rely on the assumption of the validity of the second marriage.

Judy files for divorce from her husband James. James counterclaims by seeking an annulment on the ground of fraud. He alleged that Judy misrepresented that her prior husband was dead. He, being Catholic, claims that he would not have married Judy had he known of the misrepresentation. If the court applies the "strict test" to requests for annulment of a marriage based on fraud, what result?

The court would likely hold that the defendant is entitled to an annulment because the plaintiff's fraud goes to the essentials of the marital relationship (i.e. the defendant's knowledge makes it impossible for him to perform his marital duties and obligations).

A mother gives her child a hyphenated name consisting of the mother's birth name and the father's surname. The father seeks a court order to remove the mother's name from the hyphenated name on the birth certificate. He cites the state's presumption in favor of the father's name. Likely result?

The court would likely hold that the father is not entitled to the order. The court would likely declare that neither parent has a superior right to name the child. The court might hold, as some state courts have, that the presumption in favor of the father's name is a denial of the mother's right to equal protection.

A Pakistani man, Shahid, has been living in the U.S. with his American girlfriend and their child for four years. His parents wish him to marry his cousin who lives in Pakistan. He refuses repeatedly. After his father expresses a dying wish that he marry the cousin and his parents constantly remind him of the shame he causes them by his refusal, Shahid agrees and marries his cousin. He later appeals for an annulment. Result?

The court would likely hold that the parental pressure overcame his will and constitutes legally sufficient duress to vitiate his consent.

Husband and Wife have been married for 20 years. Wife returns to work. Husband suspects Wife of having an affair with her employer. Husband files for divorce on the grounds of cruelty and adultery. Husband receives confirmation of his suspicions regarding Wife's 11-year affair and adds a claim for IIED to his divorce petition. What would the court do?

The court would likely hold that, on policy grounds, interspousal claims for emotional distress should be allowed in divorce actions (even in the absence of physical injury). However, it would also hold that mere adultery does not satisfy the "outrageousness" necessary for imposing tort liability.

A successful married businessman in a small Texas town fathers a nonmarital child. the mother petitions to change the child's surname to that of the father. The father argues that the name change would embarrass members of his marital family by exposing the affair. Result?

The court would reject the father's arguments and rule that the best interests test focuses on the welfare of the child and not the interests of the noncustodial parent.

Wife and Husband separate and contest child custody. In response to Wife's constant requests for police protection from Husband, police suggest that she obtain a temporary order of protection (which she does), and that she tape Husband's phone calls (which she does) with equipment provided by police. Police arrest Husband but he is released on bail without the judge's being apprised of the circumstances. A few days later, Husband follows Wife's car when she picks up her male friend to go on a trip. Husband, knowing that six year old Son is in car, shoots into the car killing son. Wife asserts S1983 action against police and municipality for depriving her and her son of substantive due process (liberty) by failing to protect them. What result?

The court would, at least pre-DeShaney (U.S. 1989), have found that Wife had a "special relationship" with the law enforcement apparatus of her community such that it had an affirmative duty to act to protect her. 1.The police assumed an affirmative duty to protect Wife (based on their possession of the tapes and her order of protection). 2. The police were aware of Husband's violent nature 3. the police were aware that Son was the object of a custody dispute and was frequently in Wife's company 4. Wife relied on the police promise of protection (that they were still working on her case), based on her maintenance of her daily routine. NOTE: In DeShaney v. Winnebago (U.S. 1989), the USSC severely limited the "special relationship" exception under which the state has an affirmative duty to protect battered women, at least in the substantive due process (life, liberty, or property) context, when it held that no special relationship exists between a child protective services agency and an abused child, even though the agency was investigating the family and was aware of the continuing abuse.

When determining whether a divorce-related financial obligation is attributable to a property division or attributable to a support obligation for purposes of determining whether the ex-spouse may discharge the obligation due to bankruptcy, which is more important: whether the court labeled the obligation one of "support/property division" or the intent/function behind creating the financial obligation? What is the current trend?

The court's or spouses' intent behind creating underlying financial obligation and the function of the obligation (whether to divide property or furnish support) is what is more important. Current trends -Construe "support" broadly. -Federal statutory reduction of the dischargeability of property obligations o Federal legislation passed in 1994 that allowed creditor spouses to block the discharge of property obligations. o Federal legislation passed in 2005 further reduced the dischargeability of property obligations.

A judge's wife seeks relaxation of a state supreme court rule barring a judge's spouse from running for public office. Likely result?

The court, recognizing the wife's First Amendment right to engage in political activity, would likely hold that the justifications for the prohibition no longer exist. Women's common-law disabilities have disappeared, as husband and wive are no longer regarded as one entity. The court may still establish guidelines restricting use of marital assets and the marital home for political purposes and/or advise against the judge accompanying the spouse to political gatherings.

Martha begins work as a housekeeper for widower Otto and his children. Some time later, Martha accepts Otto's proposal of marriage; however, they never take part in a marriage ceremony. They cohabit and attend social events together.. On various occasions, Martha registers as single (checking into a hospital), as does Otto (executing a mortgage). the two file tax returns as single persons. Otto dies. Martha claims a dower interest as Otto's common-law widow. Otto's children contend that Martha is not entitled to a dower interest because there was no common-law marriage between their father and Martha. What result?

The kids will win. Although Martha and Otto had a present agreement to marry and cohabitated, Martha and Otto failed to establish the required "holding out" as married. Thus, Martha is not the decedent's common-law wife.

What is the federal approach to adverse spousal testimony in criminal cases, and what case established this approach?

The federal approach is to vest in the witness-spouse the privilege to testify about communications made in the presence of third parties. It leaves intact the confidential marital communications privilege. The case that established this approach was Trammel v. U.S. (U.S. 1980)

Describe the "strict test" to determining whether an annulment based on fraud should be granted.

The fraud must go to the essentials of the marriage, meaning intercourse or procreation.

What half-measure was taken in NY to protect gay marriage after a challenge to a gay couple's refusal of a marriage license was upheld by the state supreme court?

The governor signed an executive order requiring county agencies to recognize same-sex marriages validly entered into in other states.

What is the Melson formula, and what is the rationale behind it?

The least common model for establishing guidelines on the award of child support. Involves complex calculations. Rationale is the fundamental assumption that the child's needs must be met first before a parent may retain any income beyond that which is necessary for the parent's basic support needs. -Parents may keep sufficient income to meet their basic needs but not more than what is required for their own self-support; and -Children are entitled to share in any additional income so that they can benefit from the absent parent's higher standard of living. Statutory factors for determining the amount of support under this model include the health, financial circumstances and earning capacity of the parties; the parties' subsistence requirements and the standard of living to which the parties were accustomed prior to the divorce.

What is the importance of Marvin? What are the criticisms leveled against it?

The importance: It is a landmark case recognizing cohabitants' rights to make property disposition agreements for the event of dissolution. In it, the court rejected many of the arguments historically made against property agreements between cohabitants (such agreements contrary to public policy due to immorality; barred by Statute of Frauds because not in writing). It also opened up (though it then limited) the possibility that courts would craft equitable remedies for unmarried couples who were found to have entered into property disposition agreements for the event of dissolution. Criticism of Marvin: After Marvin III's statement that equitable remedies are for use only in cases of unjust enrichment or wrongful acts, it seems like cohabitants' rights remain limited after the case. It is difficult to prove implied agreements, and this is what Marvin seems to require. Recognition of implied agreements is inconsistent with legislative abolition of common law marriage. Regulation of the rights of nonmarital parties is better left to the legislature, which has superior investigative and fact-finding facilities to determine public policy.

At common law, spouses had a cognizable interest at tort in their spouse. What was it called, and how could it be defined?

The interest was called "consortium," and could be defined as the services, companionship and affection of the other spouse as well as the sexual relationship.

In cases in which a person appears to have had more than one marriage ceremony without having divorced in between, and where there is little evidence of which of the marriages is valid, what is the presumption?

The presumption in doubtful polygamy cases is that the most recent marriage is valid. the person asserting the invalidity of the second marriage has the burden of rebutting the presumption by conclusive evidence. Courts are most likely to apply this presumption if the latest marriage is longstanding, has produced children, and the challenge is by an employer or governmental entity for benefits purposes.

What is the limitation placed upon the court if it does not obtain personal jurisdiction over the defendant? What is the rationale for this limitation?

The limitation is that the court may adjudicate only the issue of marital status (termination of the marriage). It may not adjudicate the economic issues (spousal support, property division) if the court does not have personal jurisdiction over the defendant. The rationale behind this is that to deprive the defendant of property without establishing jurisdiction over him would be a violation of his due process rights.

Carl and Evelyn date for five months. A few days before Christmas, Carl gives Evelyn a ginormous ring as an engagement present. Six weeks later, Carl breaks off the relationship based on his belief that Evelyn is not "the one," and because his mom and dad hate Evelyn. Carl later asks for the ring back but Evelyn doesn't give it back. Carl sues Evelyn. Based on the majority rule, what result? What is the majority rule?

The majority rule is a fault-based approach. Because Carl was at fault for the failure of the engagement, Evelyn is entitled to keep the engagement ring. According to the majority rule, if a ring is given in contemplation of marriage, the party who breaks the engagement without justification is not entitled to either the return or retention of the ring.

Bill marries a widow who has a daughter from her previous marriage. He divorces the widow. Four years after the divorce, he marries the daughter. Two years later, the widow-ex-wife dies. Bill and his daughter-wife have four children. After Bill's death, his daughter-wife petitions the probate court for a widow's allowance. A family member challenges her claim, arguing that the marriage was incestuous and therefore void. Result?

The majority rule would hold that the marriage is valid because the relationship by affinity ceased upon termination of Bill's marriage to the widow.

What is a problem with enforcement of wife beatings as compared to other assaults/batteries, and what has been done to address this problem?

The problem is that, historically, police departments have been reluctant to treat wife-beating as seriously as other assaults. Governments have addressed this through: -Case law, such as federal civil rights actions against municipalities and police departments; and -Statute, such as those which eliminate police discretion by requiring mandatory arrests of batterers.

What does the UMDA say regarding divorce and fault?

The original version of the UMDA rejected fault-based notions in custody determinations, so long as the "faulty" behavior does not affect the parent's relationship with the child.

What is the jurisdictional problem involved in same-sex divorce?

The problem occurs when the couple or the plaintiff moves to a state that has its own DOMA refusing to allow its courts to extend recognition to gay marriages or partnerships/civil unions, which includes dissolving them, or merely a state whose judges interpret the Family Courts' jurisdictional statutes as conferring jurisdiction only over heterosexual marriages.

What is the standard for modification of custody orders?

The parent seeking the modification has the burden of proof. The standard for modification is higher than for an initial custody determination. There are actually three different standards which the parent seeking modification of the custody order might be asked to meet, depending on the jurisdiction: -Traditional standard (most common): Requires petitioner to show that a material or substantial change of circumstances has occurred, after the original decree. Courts disagree as to what constitutes a "substantial" change, with some courts requiring very little. -Strictest standard: This standard requires endangerment of the child's physical, mental, moral or emotional health for a nonconsensual change to be imposed. This is the UMDA standard. -Most liberal standard. A few states require only that modification be in the best interests of the child regardless of any change in circumstances.

What is meant by the requirement that premarital agreements be "voluntary?"

The parties must have entered the contract without fraud or duress.

What are the state of mind requirements which people must meet to be allowed to marry?

The parties must marry: 1. Voluntarily; 2. Without fraud; 3. Without duress.

In the days of fault-based divorce, if a party to the divorce were found at fault, how was that party treated differently from the other party to the divorce?

The party not-at-fault received the divorce decree, support, property and custody. The at-fault party was punished by having to pay support or give property to the other party, and was denied a custody award.

Carl is a lawyer. Evelyn is an antiques dealer. They get married. Before marriage, Carl has Evelyn sign an agreement in which she agrees to "waive and renounce any and all rights that, and to which she would otherwise be entitled because of such marriage, whether present or future rights, to any and all property which [husband] has now, or which he may acquire in the future, whether the same be real, personal, or mixed property, or of any kind or nature and wherever situated." Carl initiates divorce proceedings. He claims that the prenup precludes equitable distribution of his assets, and therefore exempts him from any maintenance or support obligations. What result?

The prenup effected a waiver only of Evelyn's right to distribution of property either then owned or later acquired. It did not result in a waiver of Carl's maintenance or support obligations because the waiver was not sufficiently explicit.

Carl and Evelyn decide to marry. Three days before the marriage, Carl insists upon a prenup; says he won't marry Evelyn without one. Evelyn relents. Together they choose a lawyer and split the fee. The lawyer drafts a prenup for them, and they both sign. Evelyn and Carl stay married for five years, but then decide to divorce. When Carl tries to enforce the prenup, Evelyn claims that she signed the agreement under duress, since Carl said he wouldn't get married without it. What result?

The prenup is not invalid for duress. Courts tend to agree that a party's insistence on a premarital agreement as a condition of the marriage is not duress. Courts also increasingly hold that the presence of independent counsel mitigates against a finding of duress.

Under the equitable distribution system, what are the two kinds of property, and how are they treated differently?

The two kinds of property are marital property and separate property. Most equitable distribution states follow UMDA and divide only marital property. Some equitable distribution states will divide both separate and marital property.

What are the requirements for the words or conduct which a couple entering a common law marriage uses to agree to enter into a legal marital relationship?

The words or conduct must indicate a present agreement; words of futurity are insufficient. The present agreement must take place when neither party is under a legal impediment (such as from a prior marriage). Many states require a new present agreement after removal of any legal impediment.

What are the requirements for a common law marriage?

There are three. The parties must: 1. Agree to enter into a legal marital relationship 2. Cohabit, and 3. Hold themselves out as husband and wife in the community

What is the standard by which courts resolve disputes over children's surnames, and what are the factors that courts take into account in applying this standard?

The standard is the "best interests of the child" standard. The relevant factors include: 1. Child's preference; 2. Effect of a name change on child-parent relationships; and 3. Parental motives.

What is the significance of the fact that Congress has passed many laws regulating family life?

The state previously was a matter of state law. The state reigned supreme on matters of marriage, divorce, custody support, etc. Now, because of the supremacy clause, federal law is supreme in these matters under certain situations.

How many different tests are there for the determinations of whether a marriage should be annulled based on fraud. What are their names?

There are two tests: The strict test, and the Materiality test.

A state statute provides that residents of the state who are noncustodial parents with court-ordered support obligations may not marry without a court order. Out of concern for requiring individuals to meet support obligations and to protect children's welfare, the state passed a statute requiring prospective spouses, in order to obtain the court's permission to marry, to prove that his children are not public charges and are unlikely to be in the future and that he is current in his support obligation. Nineteen-year-old Carl requests a marriage license from the County. The clerk refuses because Carl fathered a nonmarital child two years earlier when he was in high school and had outstanding child support payments. His child has been a public charge since birth. Carl challenges the statute under which the clerk refused his request for a marriage license. What result?

The statute violates Carl's right to marry on equal protection and due process grounds. In Zablocki, the Court re-affirmed the right to marry on Fourteenth Amendment Due Process grounds, as well as on Equal Protection grounds. Applying the strict scrutiny test, the asserted state interests (counseling the individual regarding support obligations and protecting children's welfare) are sufficiently important. However, the state's chosen means are not closely tailored to achieve those interests because the statute does not compel counseling nor does it guarantee that money would be delivered to the applicant's children. Less dramatic means are available to compel compliance with support obligations without impinging on teh right to marry.

What statute did Congress pass to cut down on fraudulent marriages for immigration purposes, what was the unintended effect of this statute, and what was the second statute it passed to address the unintended effect?

The statute was the Marriage Fraud Amendments Act, which required a married couple, one of whom was basing his/her citizenship application on marriage to a citizen to have lived together for two years. The unintended result was that battered women were being forced to stay with their abusers. As a result, Congress passed VAWA, which allowed self-petitions by battered spouses.

Roberta and brad live together for several years and have two daughters out of wedlock. Roberta and Brad separate, after which Brad lives with his parents. Brad regularly brings his daughters to his parents' home for weekend visits. Brad dies two years later. A few months after Brad's death, Roberta informs the grandparents that she wishes to limit their visits to one per month. Grandparents petition for visitation rights requesting two weekends of overnight visitation per month and two weeks of visitation each summer. In the parties' state, there is a statute which says that any person may petition the court for visitation at any time and that the court may order visitation rights for any person when visitation may serve the best interests of the child. Trial court awards grandparents visitation. Roberta appeals. What case? What result?

The statute would be held unconstitutional. In Troxel v. Granville (U.S. 2000), the USSC held that such a state statute, as applied, violated the mother's due process rights because the trial court contravened the traditional presumption that a fit parent will act in his/her child's best interests and gave no special weight to the fit mother's determination of those best interest. The Court reasoned that the state has no right to question the ability of a fit parent to make decisions concerning the rearing of that party's children.

What presumption do most jurisdiction apply prior to making a determination of which parent should be awarded custody of a child?

Trick question! Most jursidictions do not apply any presumption in favor of one parent. Rather, they follow the "best interests of the child" standard.

What is the tort of seduction, and what is its current legal status?

The tort of seduction at common law was an action brought by a woman's father or loco parentis when an unmarried, previously chaste woman consented to intercourse in reliance on a defendant's false promise to marry. When the tort became codified, legislatures conferred a right to sue upon the woman, with a few states criminalizing it. Currently some states have reformulated the tort as an action for intentional misrepresentation. The idea is that the false statements induced the woman's acquiescence to seual relations.

What is the traditional prerequisite to seeking support for a nonmarital child? How has it changed, and by what means?

The traditional prerequisite is that the mother bring a paternity action. o The Supreme Court has invalidated several short statutes of limitations ("short" meaning as long as six years in Clark v. Jeter (1988)) as denials of equal protection. Since these cases, many states increased their statutory periods for paternity establishment. o Congress lengthened the statutory period for paternity establishment by enacting the Child Support Enforcement Amendments of 1984, which provide for extensions of the statutory periosd until 18 years post-birth as a condition of states' receipt of federal funds. o Family Support Act of 1988 -requires states to permit paternity establishment for children whose actions previously were dismissed based on short state statutes of limitations. -Requires states to enact procedures to order all parties to submit to blood tests to determine paternity (subject to a good cause exception); -Makes available to state agencies the Parent Locator Service to facilitate enforcement of child support obligations.

What is the traditional rule concerning same-sex marriage?

The traditional rule in most jurisdictions is that same-sex marriage is not to be recognized.

What is the traditional approach to whether unmarried partners can inherit intestate shares of their partners' estates? What is the current trend?

The traditional rule is that courts refuse to permit members of unmarried couples from inheriting an intestate share of the deceased partner's estate. In a few modern jurisdictions, case law and domestic partnership legislation are modifying this result, allowing unmarried partners to inherit intestate shares of estates.

What is the trend regarding courts' consideration of domestic violence in custody decisionmaking?

The trend has been increased consideration of domestic violence in custody decisions. Today, either by case law or by statute, virtually all jurisdictions take into account domestic violence in child custody disputes.

At common law, marital parties could not be criminally liable as co-conspirators. Nor did wives face criminal liability for the commission of a criminal act in their husbands' presence (based on the presumption that they acted under their husbands' duress). What is the trend concerning these rules?

The trend has been to abolish these rules.

In terms of the property rights affected, is the current trend for the scope of antenuptial agreements to get broader or narrower?

The trend is to broaden the scope of antenuptial agreements in terms of the property rights affected.

What is the current trend regarding establishing jurisdiction over out-of-state obligor spouses for the purpose of enforcing support orders? What is the rationale behind the trend?

The trend is to expand the traditional methods fo acquiring personal jurisdiction over nonresidents for support purposes. Rationale behind the trend a is to address social mobility and increased numbers of deadbeat dads.

Carl is a lawyer. He and Evelyn have an illegitimate child. They decide to marry to legitimize the kid. Three days before marrying Evelyn, Carl presents her with a prenup that he drafted. Carl insistes that Evelyn sign the agreement as a condition of their marriage. The prenup requires Evelyn to give up her rights under state law requiring the disposition of community property upon divorce. Attached to the prenup are a list of Carl's assets and his W-2s from the last few years. Evelyn goes to a lawyer to review the prenup, and later decides to sign it. After 8 years of marriage, Carl files for divorce. Evelyn claims the prenup is invalid on ground of duress. What result?

The trial court would hold that Carl's request three days before the wedding and his insistence on the agreement as a condition of the marriage did not constitute duress, especially because he made a full disclosure and because she signed it voluntarily after consulting an attorney of her choice.

A toddler's paternal grandparents obtain visitation after the death of the child's father (their son) in an automobile accident. When the mother remarries three years later, her new husband petitions to adopt the child. The mother and her new husband also petition to change the child's surname to that of the new husband in order for all family members to share the same surname. The grandparents object to the surname change, and file suit. What likely result?

The trial court would likely reject the grandparents' claim, emphasizing that the applicable adoption statutes 1. Afford no discretion to the trial court to reject a proposed name change (unlike name-change statutes) 2. Expressly contemplate the change of the child's surname incident to an adoption, and 3. Do not provide for a right to object to a proposed name change during an adoption by persons (such as grandparents) who merely are entitled to notice of the adoption proceeding.

What is the jurisdictional requirement for courts to make or modify an award of child support?

To make or modify an award of child support, a court must have personal jurisdiction over the obligor.

Husband and Wife are doctors. Wife is an emergency-room physician ($7,200 per month) and husband is an anesthesiologist ($24,000 per month). They separate eight days after the birth. Trial court, following statutory rules, orders Husband to pay 20 percent of his income. Husband feels this is excessive. What arguments should Husband make? Is there a chance that he'll succeed?

There is a chance that Husband will succeed, as courts may order a deviation from the statutory guidelines in appropriate cases. Husband should wait to have contempt proceedings initiated against him, then argue that the support award is an excessive abuse of discretion, as it is more than is necessary to meet the child's reasonable support needs, particularly in light of the Wife's resources.

What are a spouse's responsibilities regarding the medical care of his or her spouse? What is the possible result for failing to meet these responsibilities? What is the exception to the responsibility?

There is a spousal duty of care, descended from the common law duty to provide necessaries, under which a spouse has a duty to provide medical attention to the other spouse. Breach of this spousal duty of care can result in criminal liability, especially if the injured or vulnerable spouse is unable to summon aid. The exception is that a spouse does not incur liability for failure to provide medical care if the omission is in good faith and at the request of a competent spouse.

Can an employer lawfully terminate an employee for being a member of an unmarried couple?

There is an 11th Cir. case (Shahar v. Bowers (11 Cir 1997)) and at least one district court case (not in our casebook) that have held that this can be lawfully done. These cases were, however, decided before Lawrence v. Texas. Also noteworthy is that these cases involved public employees, where it might be easier to make a showing of important or compelling state interest. For example, the plaintiff in Shahar was an Assistant DA whose office prosecuted sodomy cases.

What is the majority rule on whether cohabitating unmarried couples may recover in tort for injuries to each other by third parties?

There is no clear majority rule. Jurisdictions are divided about recognition of the legal rights of cohabitants in the tort context that are available to members of traditional families. Some jurisdictions allow cohabitants to recover, others do not.

What situation in recent years provided an opportunity for constitutional attack concerning state laws prohibiting gay marriage?

There were some states that did not have an express statutory prohibition against same-sex marriage.

A mother and father live together for 18 years without marrying and have three kids together. The mother dies. The state declares the three children to be wards of the state without first declaring that the father is unfit. The father goes to court. What result? What case? What constitutional provision?

These are the facts of Stanley v. Illinois. There, the Supreme Court held that all parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody, and that denying such a hearing to a particular classification of parents violates Equal Protection Clause of the Fourteenth Amendment. In doing so, the Court overturned the Illinois high court, which held that the father could lose custody based on the fact that mother and father were not married, regardless of fitness.

After a 36-year marriage, a lawyer-husband and homemaker-wife divorce. A state statute provides that only husbands, and not wives, must pay alimony upon divorce. A husband wishes to collect spousal support from his wife. The state justifies its statute, citing the need to provide help to needy spouses (using sex as a proxy for need) and to compensate women for past discrimination during marriage. What should the husband argue? What case should he cite? What was the rationale of the case?

These are the very facts of Orr v. Orr (U.S. 1979), in which husband challenged the constitutionality of just such a statute as a violation of equal protection. USSC held that the gender-based statute was unconstitutional. USSC reasoned that the reasons offered by the state for the statute do not justify it -Courts routinely conduct individualized hearings upon divorce. Courts therefore have no reason to use sex as a proxy for need. Courts may address teh compensatory rationale with out burdening only husbands.

Some states have addressed the issue of duress involved in last-minute prenups by statute. What do these statutes require?

These state statutes require a designated amount of time between execution of the agreement and the marriage

What is the relationship between a parent's right to visitation and the parent's duty of support?

They are independent. A parent may not condition visitation upon the other parent's payment of child support. Conversely, if one parent withholds support, the other parent may not deny visitation as retaliation. Caveat. Some courts make an exception for willful and intentional failure to pay child support that is detrimental to the child.

How likely are courts to impose total denials of visitation?

They are unlikely to do so because the parent-child relationship is constitutionally protected. However, some extreme situations (such as severe physical, sexual, or substance abuse) may bring about such an outcome.

What is the usefulness of evidence of battered woman's syndrome in wife beating cases when confronting the abuser and trying to rebut his defenses?

They explain the victim's actions which are not similar to those of a person without BWS who is confronted with violent attacks. Can be used to support a battered woman's claims of self-defense in cases of homicide when a battered woman has killed her abuser. To avail oneself of the defense of self-defense, a defendant must prove that she reasonably feared that she was in imminent danger of serious bodily harm. Battered woman syndrome addresses the reasonableness of the perception of imminence and the danger that a woman faces.

How have states limited the marital exemption to rape?

They have, either by statute or by case law: -Precluded the husband's resort to the exemption if the parties are living apart -Precluded resort to the exemption if one party has initiated legal proceedings -Required both that the parties be living apart and that one party has initiated legal proceedings for preclusion of the rule to take effect.

Husband is separated from Wife because of physical abuse. He calls Wife to request a visit with Son. Wife agrees, and also agrees to return to his motel provided that a friend will be present. At the motel, the friend leaves. Husband forcibly rapes and sodomizes Wife in front of 2-year-old son. Husband, although unable to resort to marital rape exemption because of the legal separation order, attempts to nonetheless use the defense, arguing that precluding him from using it due to the separation order would violate equal protection. Husband made the following arguments in favor of the marital rape exception: -Prosecutions will lead to fabricated complaints by vindictive wives -Abolition of the exception will disrupt marital privacy and impede reconciliation -Marital rape is less serious tahn other forms of rape. What result?

This case was People v. Liberta (NY 1984). Court found that no rational basis exists for distinguishing between marital rape and nonmarital rape, and therefore ruled that the marital rape exemption violates equal protection. The court rejected the defendant's "rational bases" for a marital rape exception. In response to the "marital privacy" argument, the court reasoned that only consensual acts are protected by the privacy doctrine.

What constitutional provision protects a woman's right to retain her maiden name?

Trick question. The supreme Court has not recognized a constitutional right to the retention of a woman's maiden name.

Husband and Wife undergo marital counseling with their church Pastor. Pastor initiates an affair with Wife. After Husband and Wife divorce, Husband sues Pastor, asserting that he negligently and wantonly performed his pastoral duties thereby causing the husband extreme mental anguish. Pastor appeals, contending that Husband's suit constitutes a claim for alienation of affections and is therefore barred under state law. Result?

This is Bailey v. Faulkner. In this case, the appellate court reduced the jury's punitive damages but otherwise affirmed the verdict. State supreme court, however, held that the Husband's claim of "negligent marital counseling" was barred by the statutory abolition of amatory torts.

Nancy was in a car accident and has been a vegetable ever since with no hope of recovery. Her parents request the hospital to terminate life support. The hospital refuses to do so without judicial approval, so Nancy's parents seek such approval. The state requires that an incompetent person's wishes to withdraw life support be proved by clear and convincing evidence. The trial court authorizes termination, but the state supreme court reverses. The parents appeal to the USSC. What result.

This is Cruzan v. Director, Mo. Dept. of Health (1990). In that case, the Court held, on the assumption that a *competent* person has a constitutionally protected liberty interest under the Due Process Clause to refuse life-sustaining procedures, that the Constitution does not forbid a state's adoption of a heightened evidentiary requirement to determine an *incompetent's* wishes for withdrawal of life support. The state has an interest in the preservation of human life and the protection of family members against abuse.

Gramma lives with her son Sunkle and her two grandchildren; Sunkle, Jr. and John, Jr. The grandsons are cousins. A city housing ordinance limits occupancy of a dwelling to members of a "single family." As defined in the statute, the term "family" is limited to parents, children and only those grandchildren who live with a parent. Since neither John, Jr.'s mom nor dad live in the house, the health department tells Gramma he has to move out. Gramma refuses and she is charged with a criminal offense. What should Gramma's defense be, and how should the court respond?

This is Moore v. East Cleveland. Gramma's defense should be that the ordinance violates her right to due process. In Moore, the USSC held that such an ordinance fails to serve the stated governmental interests (prevention of overcrowding, minimizing traffic/parking congestion, avoiding undue financial burden on the school system), and that the tradition of the extended family is rooted in history and that such families are tehrefore equally deserving of constitutional protection as the traditional family.

What is collaborative law?

This is a form of ADR where the parties and their attorneys sign a binding agreement in which they agree to use cooperative techniques without resort to judicial intervention except for court approval of the parties' agreement. Attorneys are prohibited from participating in contested court proceedings for their clients. That is, if the parties are unable to reach an agreement through collaborative law procedures, their attorneys must withdraw from representation. This started in Texas. Some states have held that it is unethical because the lawyer's representation becomes limited to the point where it impair's the lawyer's ability to provide independent advice regarding the need for litigation.

What is the appropriate role for a child's lawyer in custody cases?

This is a matter of debate. Common answers include: -Advocate -Neutral factfinder -mouthpiece to bring child's wishes to the court's attention -investigator.

What are "parenting plans?"

This is a statutory development in a number of jurisdictions in which it is favored that parents enter into written agreements specifying caretaking and decisionmaking responsibility authority for their children (and often specifying the manner in which future disputes are to be resolved). The ALI Principles reflects this trend by requiring a party seeking custody to submit a parenting plan.

What is the "relation back" doctrine as concerns annulment.

This is the doctrine under which a marriage that has been annulled is considered void from its inception. Application of the doctrine may result in positive consequences (such as reinstatement of a benefit that was lost because of the relationship) or negative consequences (bastardizing children). Judicial discretion is involved in application of the doctrine.

Describe the "natural parent presumption."

This is the rebuttable presumption which favors natural parents in custody disputes involving parents versus nonparents. It may be rebutted with evidence of parental unfitness, voluntary relinquishment or other extraordinary circumstances. In some jurisdictions, psychological ("de facto") parents may overcome the natural parent presumption in some cases.

What is the big limitation to the Williams II rule that courts may reexamine the jurisdictional findings of sister states when determining the validity of out-of-state divorce decrees?

This rule applies only if the divorce decree was a product of ex parte proceedings. If both parties appear in a bilateral divorce, courts of other states may not reexamine the jurisdictional findings of fact of the decree-issuing court. Sherrer v. Sherrer (U.S. 1948).

Do courts determine the fairness of prenuptial agreements at the time of execution, or at the time of enforcement (divorce)? What are the arguments for each method?

Though some courts determine fairness only at the time of execution, an increasing number of states--while still determining fairness primarily upon the time of execution--are also taking into account the agreement's fairness at the time of the divorce. Policy argument for determination of fairness at execution: Emphasizes contractual freedom Policy argument for taking into account a prenup's fairness at time of divorce in an overall fairness determination: Emphasizes equitable principles. UPAA requires *unconscionability* at the time of *execution*. ALI Principles assess fairness (requiring "substantial justice" rather than unconscionability) at the time of *enforcement*.

Evelyn is Carl's bookkeeper. They start dating and eventually Carl proposes. Three weeks before their wedding, Carl presents Evelyn with an agreement whereby she waives all rights to his property, whether acquired before or after the marriage. Upon divorce, Evelyn challenges the agreement as unfair. What result?

Though the court is likely to agree with Evelyn's assertion that the agreement is unfair, the court is likely to uphold it. Any argument about Carl's concealment of assets or of Evelyn's lack of knowledge would be rebutted by her independent knowledge as his bookkeeper.

What condition must exist for a court to be able to make or modify an award of child suport or spousal support, which need not exist for the divorce itself to take place? What doctrine dictates this?

To make or modify an award of child suport or spousal support, the court must have *personal jurisdiction* over the obligor. This is not necessary for award of the divorce, which may happen ex parte. This is known as the *doctrine of divisible divorce.*

Can members of a married couple contract with one another to regulate their responsibilities under the marriage?

Traditional Rule. Traditionally, the parties were not permitted to regulate by contract state-imposed rights and responsibilities of the marriage, such as the husband's duty of support or the wife's duty to provide services. Modern View. Under the modern view, courts are more willing to allow the parties to regulate the financial aspects of the marriage. Public policy is seen as favoring individuals' ordering their interests through contractual arrangements.

What has been the current trend (and current majority view) in terms of unmarried couples' ability to divide property after dissolution of the relationship? How does this differ from the traditional rule?

Traditional Rule: Agreements between members of unmarried couples regarding the division of property after dissolution of the relationship are invalid as contrary to public policies against morality. Modern Majority View: Unmarried partners may enter into agreements with each other regarding the ownership of property acquired during the relationship, based on contract law principles.

When may a court assert jurisdiction to adjudicate child custody: -Under the traditional rule? -Under the modern rule?

Traditional rule: Courts may assert jurisdiction to adjudicate custody so long as the child is domiciled in the state. Modern rule: Concurrent assertions of jurisdiction started to take place as multiple states found interest in various children's welfare. This led to the passage of model and federal Acts intended to provide uniformity in custody decisionmaking, which have since been superseded by the Uniform Child Custody Jurisdiction and Enforcement Act, which has been enacted by almost all states, and which: 1. Emphasizes full faith and credit of judicial orders relating to child custody. 2. Gives jurisdictional priority to the state in which the child had lived for at least six consecutive months at the time of the commencement of the proceeding; 3. Restricts the use of emergency jurisdiction to the issuance of temporary orders; 4. Provides strict requirements for modification (restricting the exercise of modification jurisdiction to exclusive continuing jurisdiction). 5. Clarifies that the principles of law determining "child custody" determine both custody per se as well as visitation; and 6. Expands the definition of "child custody proceedings" to include those related to divorce, separation, abuse and neglect, dependency, guardianship, paternity, termination of parental rights and protection from domestic violence.

What is the traditional rule regarding the rights of nonmarital children to support? How has it changed? Cite a case showing how the law in this area has changed.

Traditional rule: Nonmarital children have a right to support and inheritance from their mother only, and not from their father. Modern rule: According to many modern statutes, both parents of nonmarital children have the duty to support the children regardless of the legitimacy of teh children. In Gomez v. Perez (U.S. 1973), the Court held that a state cannot grant marital, but nonmarital children a statutory right to paternal support .

How do courts determine the substantive fairness of prenuptial agreements: -Under the traditional rule? -According to the modern trend?

Traditional rule: The agreement must be fair under all the relevant circumstances. Modern trend: Under the modern trend reflecting increasing respect for decisional autonomy and changing gender roles, antenuptial contracts are treated similarly to ordinary contracts, and some courts enforce agreements that are unfair so long as the agreement accords with intent, is entered into voluntarily, and is entered into with full disclosure.

Are premarital agreements valid? Have they always been?

Traditional view. Agreements between prospective spouses were considered void as contrary to public policy. Modern view. Courts permit parties to regulate the financial aspects of marriage, so long as the agreement is procedurally and/or substantively fair.

What are the traditional remedies which states have at their disposal to ensure enforcement of child support obligations? What are the modern remedies that they use?

Traditional: Money judgments, criminal nonsupport proceedings, and contempt. Modern: suspension of licenses held by obligors in arrears, such as driver, business, occupational and recreational licenses.

What was the traditionally-recognized basis for divorce?

Traditionally, divorces were granted based on marital fault. These grounds include: -adultery; -cruelty; -desertion/abandonment. Even earlier than that, usually in the Southern colonies, divorces could only be obtained through a legislative grant.

Can a spouse be ordered to pay spousal support following an annulment?

Traditionally, no, but some states now permit spousal support awards following an annulment.

What does a woman have to do to retain her maiden name after marriage?

Trick question! A woman retains her birth name so long as she shows consistent and nonfraudulent use of that name. There is a common-law right for any person to adopt any name absent fraudulent intent.

At common law, what was the legal method of a woman changing her name upon marriage?

Trick question! At common law, a married woman assumed her husband's surname based on custom, not on operation of law.

A state prison regulation permits an inmate to marry only with the superintendent's permission and , then, only when compelling reasons exist to allow the marriage. The regulation does not define what constitutes a "compelling" reason for marriage. Prison officials interpret it to permit marriages only in cases of pregnancy or the birth of a nonmarital child. One prisoner serving a fifteen-year term applied to the superintendent to marry and was denied. He therefore filed suit, claiming that his fundamental right to marry has been infringed by the state. The State concedes that the right to marry is fundamental, but argues that the right does not apply in the prison context. Moreover, the State asserts that its interests in prison security (preventing love triangles) and rehabilitation (marriage would detract from prisoners' developing necessary skills of self reliance) support the prohibition. What result?

Turner v. Safley. Court held that the prison regulation was unconstitutional because it failed to satisfy even rational basis, i.e., it is not reasonably related to the stated goals. Turner is significant for its affirmation that the right to marry applies even in those special contexts that traditionally have been subject to considerable state regulation.

A court grants visitation rights to a father and orders him to pay child support. After he is unable to make his support payments and his request for reduction is repeatedly denied, the court finds him in civil contempt and orders him to serve a six-month sentence to be purged upon payment of arrearages amounting to around $40K. The court suspends the father's visitation before his release from jail because he fails to pay the support. He appeals the suspension of his visitation rights. What case? What result?

Turner v. Turner (Tenn. App. 1995). The appellate court held that the facts did not warrant the suspension of visitation. Child custody and visitation decision decisions should be guided by the best interests of the child and are not intended to be punitive. The denial of visitation is warranted only when the noncustodial parent is financially able to pay support but refuses to do so.

What are the two kinds of goodwill? What are the majority/minority rules regarding their disparate/similar treatment in property division in divorce cases?

Two kinds of goodwill: personal goodwill and enterprise goodwill. Majority Rule: Most states differentiate between "enterprise goodwill" and "personal goodwill" and take the position that the latter is not marital property, but that enterprise goodwill is. Minority Rule 1: Some of the courts of the minority jurisdictions refuse to distinguish between personal and enterprise goodwill and take the position that both personal and enterprise goodwill in a professional practice constitute marital property. Minority Rule 2: Some courts take the position that neither personal nor enterprise goodwill in a professional practice constitute marital property.

How many Uniform Acts address premarital agreements? Which ones are they?

Two: (1.) Uniform Premarital Agreements Act (UPAA, specific to the subject of prenups); (2.) Uniform Marital Property Act (broader system of shared property during the marriage; more widely followed).

Husband and Wife #1 have three sons. They live together until 1979 when Wife dies. Wife's will purports to transfer to their sons her community property interest in Husband's undistributed pension plan benefits. One year after Wife's death, Husband meets Wife #2. Husband and Wife #2 remain married until Husband dies in 1989. After Husband's death, Wife #2 seeks a survivor's annuity under Husband's employment plan. Husband's sons from his prior marriage argue that they have a right to a portion of Wife #2's survivor's annuity (based on their mom's testamentary transfer). Wife #2 seeks a declaratory judgment that ERISA preempts the application of state community property and succession laws that would recognize the sons' interest in the retirement benefits. What case? What does the Supreme Court decide?

USSC decides in favor of wife #2 in Boggs v. Boggs (U.S. 1997). It held that Wife #2 has a surviving spouse's statutory entitlement to the annuity that is not subject to the sons' claims.

A school board requires pregnant teachers to take maternity leave without pay beginning 5 months before birth, and requires them to wait until their child is 3 months old before the mother returns to work. Another school district's policy requires pregnant teachers to give 6 months' notice and to leave work 4 months prior to birth. Plaintiff teachers challenge the policies as violations of due process and equal protection. School board says that the policy is a convenient way to time maternal leave. What result?

Under Cleveland Bd. of Ed. v. LaFleur (U.S. 1974), the court would hold that these regulations violate plaintiffs' due process rights by their conclusive presumption that pregnant employees are unable to work. The rationale of administrative convenience fails to justify the constitutional defect.

Husband is tried for assault and attempted murder. During the police investigation, Wife makes a recorded statement that contradicts Husband's claim of self-defense. At his trial, the state seeks to introduce her recorded statement because Wife refuses to testify based on the state's marital privilege that prohibits spouses from testifying against each other. The trial court admits the Wife's recorded statement in the face of Wife's unavailability, as an exception to the hearsay rule (out-of-court statement bearing sufficient indicia of reliability). Husband is convicted and appeals. What result? What case, and what was its holding?

Under Crawford v. Washington (U.S. 2004, identical situation), the conviction would have to be reversed. The Crawford Court held that the use of the wife's recorded statement violated the husband's rights under the Confrontation Clause because, where out-of-court testimonial statements are at issue, the Sixth Amendment requires actual confrontation.

Husband and Wife are married for a good many years. They divorce, and Husband is ordered to pay alimony. Wife starts shacking up with Cohabitant. Husband petitions to terminate support obligation. What case, and what result? What should the husband have done in that case.

Under Lucas v. Lucas (W. Va. 2003), the court held that the trial court's mere (slight) reduction of amount of support awarded was an abuse of ddiscretion beccasuse the judge failed to thoroughly evaluate the financial circumstances, income and expenses of teh ex-wife (to include contributions by her cohabitant) to determine recipient's continuing need, if any, for support. In Lucas, Husband should have ensured that the separation agreement provide for a reduction of spouseal support in the case of remarriage or cohabitation.

What is the UMDA's rule for modification of spousal support?

Under UMDA, spousal support may be modified only if a change in circumstances has occurred that is "so substantial and continuing as to make the terms unconscionable."

Evelyn and Jorge are married and live in Nevada, but Evelyn decides she doesn't want to be anymore. Jorge has a huge family and network of friends in NV, so Evelyn wants to get the divorce elsewhere. She goes to CA and gets an ex parte divorce. CA has a durational residency requirement of a year to get a divorce. Evelyn goes to CA for a day, lies on the forms and says that she lives at her cousin's address in Barstow. She gets the divorce decree. Must NV unquestioningly recognize the divorce decree, even though Jorge has witnesses that can attest to Evelyn not meeting the residency requirements of CA?

Under Williams II, NV does not have to recognize CA's determination of Evelyn's domicile. When it is the good faith of the spouses' domicile assertions to the divorce forum state, and not the decree-granting authority of the divorce forum state that is at question, the state may examine this issue when the divorce decree is the result of an ex parte proceeding.

Husband and Wife are informally (not judicially) separated. Wife moves into her own apartment. Husband has no ownership or possesory interest in her apartment, nor has he ever resided there. Husband breaks into Wife's locked apartment on two occasions. He is charged with burglary. He defends by arguing that since the victim was his wife, he was able to enter her apartment as a matter of law. Will he succeed? Explain both why he might and why he might not.

Under common law rules, he would have. At common law, a spouse could not be liable for a criminal act involving the other spouse's property based on the fiction of marital unity (husband and wife constitute a single legal entity). Modern case law rejects this common law rule. In this case, especially since the premises are in sole possession of Wife, the Husband would probably be found guilty of burglary.

What is the common law rule regarding children's surnames? How have modern statutes changed this rule?

Under common law, custom dictated that a child born in wedlock adopted the father's surname. Nonmarital children adopted the mother's name. Modern statutes provide that parents may chose the father's surname, the mother's surname, or a hyphenated surname combining the two.

Name and describe the common law doctrine for determining whether husbands were meeting their duty of support of their wives during a marriage. In mind of what arrangement was it designed?

Under the *necessaries doctrine*, a husband had a common-law duty to provide *necessaries* (necessary goods and services such as--at a minimum--food, clothing, shelter and medical care) to his wife and children. Necessaries doctrine was designed in mind of the once-common arrangement whereby women surrendered their property to their husbands, and the need to protect married women in such arrangements.

Two employees of the same company get married. After their marriage, they are terminated because of their employer's antinepotism rule. They allege that the terminations violate their constitutional right to marry under Zablocki v. Redhail. Result?

Under the 6th Circuit's decision in Vaughn v. Lawrenceburg Power System (2001), the Court would likely conclude that the employer's policy does not merit strict scrutiny review because it does not place a "direct and substantial" burden on the right of marriage. Based on rational basis review, the court would find that the policy advances a legitimate governmental interest (regarding fostering loyalty and discipline).

Debbie Heene is Bob Heene's wife. Debbie bears Gary Brinton's child. She wishes to name the child Alicia Brinton. Another plaintiff, Ms. Spidell, wishes to give her daughter the last name McKenzie, which she did for her other two children (a name which she picked out of thin air). State statute restricts the choice of children's surnames, for married women to: 1. the husband's surname; 2. the mother's surname; 3. the mother's birth name; or 4. a fused surname. For unmarried women, to a. The father's or mother's surname, or b. A fused surname. Plaintiffs argue that the statute is unconstitutional as a violation of tehir right of privacy. What likely result?

Under the 8th Circuit's decision in Henne v. Wright (1990), the court would hold that parents have no fundamental constitutional right of privacy to confer a surname with which the child has no legally-recognized connection. The statute is rationally related to legitimate state interests in promoting the welfare of children, recordkeeping and insuring that names are not appropriated for improper purposes.

Describe the adversary process to establishing child custody arrangements.

Under the adversary process, a court asserts authority over child custody and is the ultimate decisionmaker.

Name and describe the common-law doctrine whereby a woman's identity was affected by marriage.

Under the doctrine of *coverture*, a woman's legal identity was subsumed into that of her husband. Without her husband's consent, a wife was therefore unable to: -sue or be sued -enter into contracts -transfer title on real property -make a will -retain or control her own earnings and property -have a separate, legally-recognized residence (domicile) aside from that in which her husband resides. Husbands were liable for all of his wife's premarital and post-marital debts and torts.

In jurisdictions which do not allow cohabitating unmarried couples to recover in tort for injuries to each other by third parties, what is the common result as far as judicial outcome of cases?

Unmarried partners bringing suit for loss of consortium or for NIED due to an injury by a third party to the other partner is found not to constitute a claim.

Bob and Julie get married. Julie inherits a million dollars from her deceased uncle. Bob and Julie divorce. Is the million dollars "marital property" or "separate property?"

Under the majority approach and UMDA, gifts and inheritances to one spouse are considered nonmarital/separate property and are therefore awarded to the party who received them.

What is the majority rule regarding whether there is a spousal exception to federal laws prohibiting wiretapping? Is there a judicial exception to federal anti-wiretapping laws for spousal wiretapping in the home?

Under the majority rule (Fourth, Sixth, Eighth, Tenth, Eleventh Circuits), federal courts impose liability for spousal wiretapping in the home.

What is the majority rule regarding pensions as marital property?

Under the majority rule both vested and nonvested pensions are marital property subject to equitable distribution.

Victoria lives with Robert for 15 years. When Victoria becomes pregnant with her first child Robert tells her that they don't need a formal ceremony to become husband and wife. They notify their relatives that they are married and hold themselves out as spouses. The problem with this is, the state in which they live does not recognize common law marrriages. The two come to a verbal agreement whereby, if Victoria pays Robert's dental school tuition, Robert will share with her all property acquired during the relationship. Robert ends the relationship. Victoria asks for half of the property acquired during the relationship, and he refuses to give it up. Victoria files suit. Under the minority view, what result?

Under the minority rule, unmarried couples' arrangements regarding divisions of property acquired during the relationship in the event of dissolution are unrecognizable on public policy grounds. Since Victoria and Robert were not legally married (no common law marriage in their state), their verbal, on-the-fly prenup is not legally cognizable in states that observe the minority rule. Hewitt v. Hewitt (Ill. 1979)

What is the minority rule regarding pensions as marital property?

Under the minority rule, vested pensions, but not nonvested pensions, are marital property subject to equitable distribution.

Evelyn is a 23 year old unemployed nurse. She marries Carl, a 39 year old neurosurgeon. Their prenup limits Evelyn's right to spousal support to $200 per week, subject to a maximum of $25,000 (less than 2.5 years). The two end up divorcing. Upon divorce, Evelyn argues that the payments are not reasonable. What likely result under the modern trend respecting unfairness of prenuptial agreements?

Under the modern trend, the agreement is likely to be upheld, as it is no longer assumed that spouses are or unequal status and women are not knowledgeable enough to understand the nature of contracts.

Juan marries Millie in 1929. they have three children and live together until Juan dies in 1969. Josephine meets Juan in 1942. He tells her that he is divorced. She married him in 1945 and has four children with him. Juan lives a double life, maintaining homes with both women until 1969. Upon his death in an auto accident, both wives claim an intestate share of his estate as his legal spouse. Outcome?

Under the putative spouse doctrine, the court in Estate of Vargas held that, although Josephine's marriage was void because Juan was still married to Millie, Josephine acquired the status as a putative spouse based on her good-faith belief that she was validly married. As such, the court held that she was entitled to share equally in Juan's estate with his lawful spouse, Millie.

What is the traditional rule regarding the laws that govern validity of a marriage when the laws of the place of residence and place of celebration conflict?

Under the traditional rule, marriage validity is determined by the law of the state where teh marriage was celebrated. The Uniform Marriage and Divorce Act takes this approach.

What classifications trigger intermediate scrutiny?

Under traditional equal protection analysis, classifications based on gender or illegitimacy trigger intermediate scrutiny.

There is a Uniform Act which creates a summarized means of establishing paternity. Which Act? What is the method?

Uniform Parentage Act allows a presumption of parentage to be established by a father's reception of the child into his home for the first two years of the child's life, and publicly acknowledging the child or acknowledging the child in writing to a court or administrative agency.

A certain uniform code permits nonmarital children to inheret from their fathers under certain conditions. Which Uniform Code? Which conditions?

Uniform Probate Code. Conditions are that paternity be established prior to the father's death by celar and convincing evidence, that the father publicly acknowledge the child and htat the father not refuse to support the child.

Frank and Rob are involved in a long-term, stable, cohabiting relationship. The two men split the mortgage bill every month. Rob dies, and Frank files a claim against Rob's intestate estate, asserting that he is entitled to a share of the couple's community property under a state law permitting division of community property upon dissolution of cohabitants' relationship. What result

Vasquez v. Hawthorne (Wash. 2001). Court found that, before community property laws are applied, the surviving partner must meet his burden of proof in showing that a (marriage-like) relationship existed between the survivor and the deceased and that the particular property in question was acquired by the pair during the course of the relationship.

Six unrelated college students rent a house together in a village whose ordinance restricts land use to "single family" dwellings, and defines "single family" as "persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit." The ordinance also prohibits more than two unrelated persons to reside together. One of the students challenges the constitutionality of the zoning ordinance as an interference on the right to travel and the freedom of association. What result?

Village of Belle Terre v. Boraas (U.S. 1974). Following Belle Terre, the court would uphold the constitutionality of the statute, holding that it does not interfere with the right to travel or with any fundamental right. The statute bears a rational relationship to the permissible state objectives of limiting congestion and noise and promoting family values.

What is the distinction between a void marriage and a voidable marriage?

Void marriage: Invalid from inception. No legal action required to declare its invalidity. May be challenged by the parties themselves or by third parties. May be collaterally attacked even after the death of one of the parties. Offends a strong state policy. Voidable marriage. Valid from inception. Requires that one of the parties take judicial action to establish its invalidity. If neither party acts to disaffirm the marriage, the marriage remains valid. May be attacked only by the parties (though some statutes permit parents of a minor to attack a marriage. Cannot be collaterally attacked. Offends public policy less than does a void marriage.

How is family law increasingly federalized?

While family law was previously the sole domain of state regulation, Congress has passed a considerable amount of legislation in recent years on many issues of family life which usurp state law. This legislation includes acts covering: Adoption (ASFA promoting adoption) child abuse (support of state programs) child support (requiring states to have procedures, and to recognize other states' decrees) child custody child abuse and neglect domestic violence foster care marriage validity (DOMA), and parental leave (FMLA, requiring unpaid leave for birth, adoption and illness of family members).

Facts. A married shopkeeper in a small town in NC elopes with his clerk's wife. The couple goes to NV to seek a divorce. After residing there for six weeks, they file for, and are granted, divorces from their spouses. The shopkeeper and the clerk's ex return to NC. PP. They are tried of bigamous cohabitation. At trial the state asserts that the NV decree need not be recognized under Full Faith and Credit because the parties lacked a bona fide domicile in Nevada. The jury instructions charge that the statement in the Nevada decree that the petitioners were domiciled in NV is prima facie evidence of domicile. If, however, the jury finds that the petitioners went to NV for the sole purpose of obtaining a divorce, then the petitioners never established domicile there and NV's assertion of jurisdiction was in valid. They are convicted, evidently because the jury found that they didn't meet the durational residency requirement, in contravention of what the divorce decree says. They appeal. What case, what result?

Williams v. North Carolina (Williams II) (U.S. 1945). Although a state has the power to grant a divorce decree that is entitled to Full Faith and Credit (Williams I), the bona fides of the party's domicile in the decree-granting state may be re-examined when the decree was the result of an ex-parte divorce proceeding.

Leslie and Mitch get married. At the time of the marriage ceremony, Leslie is working as a lawyer for the state Dept. of Corrections. Prior to and during their marriage, Mitch conceals from Leslie the fact that he had been convicted of a second degree felony in another state. Leslie's employer discovers Mitch's criminal record and informs Leslie that because of her marriage to a convicted felon, her employer has determined that there is a conflict of interest and her employment would terminate. Leslie and Mitchell separate, adn Leslie requests an annulment on grounds of fraud. Is Leslie entitled to the annulment? If so, will the annulment enable her to continue her employment?

Yes on both counts. 1. Courts grant annulments where one spouse has concealed from the other a criminal background because it goes to the essentials of the marriage. Mitch's misrepresentations violated the essential purpose of the marriage (sexual intercourse and procreation), as Leslie wanted a husband and prospective father to her children of whom she could be proud. 2. The annulment would be held to "relate back" to the date of the marriage, and thereby eliminate Leslie's conflict of interest.

Are the states compelled to apply the intermediate scrutiny test?

Yes, as a minimum. No, as a maximum States can apply a *higher* level of scrutiny (such as the strict scrutiny standard), thereby equating sex-based classification s to racial discrimination. California did this in 1971 when it found unconstitutional a statute prohibiting women from working as bartenders.

Is common law marriage fully equivalent to typical marriage? How may a common law marriage be terminated?

Yes. A common law marriage is fully equivalent to typical marriage. It may be terminated only by death or dissolution.

Lillian and Jack live in a rent-subsidized apartment in NY. They purchase a condo in Florida and divide their time equally between NY and FL each year. While they are absent from NY, their apartment remains furnished and is not sublet. Jack has a FL driver's license and has moved his assets there. Lillian, though she has no driver's license because she does not drive, does maintain personal and financial ties to NY. They file federal income tax returns listing FL as their residence and claim a FL homestead exemption. They have bank accounts in both states and vote in NY. Their NY landlord seeks to evict them, contending that they have forfeited their rent-subsidized apt by acquiring a new domicile in FL. Jack and Lillian respond that Jack's primary residence is in FL but Lillian's domicile remains in NY. Will the couple's argument be successful?

Yes. A wife now has the same capacity to acquire a domicile of choice as does her husband. A husband's domicile no longer is deemed to be the domicile of the wife. Each spouse may have a separate domicile. Jack may choose Florida as his domicile and Lillian may choose NY.

Ann and Sean have a daughter, Jenny. They live rent-free on Sean's father's (Bob's) farm. Sean works part-time on the family farm. Bob becomes angry about Sean's drinking and work habits. Bob asks Ann and Sean to move out, and they do. Later, Bob requests that he be allowed to see Jenny. When Anna and Sean refuse, Bob petitions for visitation. A state statute permits reasonable visitation rights to grandparents if such visitation is in teh best interests of the child. When Ann and Sean challenge the constitutionality of the statute, will they be successful?

Yes. According to Troxel, a fit parent (or parents) has/have a liberty interest in controlling the upbringing of their child and thereby can control visitation to that child. Grandparents have no fundamental right to visitation over a fit parent's objection. A court must give deference to a fit parent's wishes. Therefore, Ann and Sean should be successful in their efforts to deny visitation to Jenny's grandfather Bob. In fact, this case reflects an even stronger argument for applying Troxel, because this situation involves objections to visitation by both fit parents in an intact family.

Husband and Wife reside in Iowa during their marriage. Following a period of marital strife, Wife leaves Husband to live with her parents in Missouri. Husband files a petition for divorce in Iowa based on grounds of desertion. He neglects to forward to Wife a notice of the filing of the petition or to serve Wife with a copy of the summons and complaint. He dies shortly after obtaining the divorce. Wife enters a claim for Social security benefits as his legal wife. Will she prevail?

Yes. Because proper service of process is required for jurisdiction over a defendant, the decree of divorce is invalid. Wife was denied her due process rights because Husband knew her mailing address and should have provided wife with notice. Therefore Wife is entitled to Social Security benefits as Husband's legal spouse.

Bob and Laura have been married for 24 years. They have 2 teenage kids. During the marriage, Laura was a traditional homemaker. Bob worked for a local telephone company. All their jointly acquired property is held in Bob's name. Bob and Laura live in a community property jurisdiction. All the couple's jointly acquired property is held in Bob's name. The couple divorces, following a mutually-agreed upon separation. At the couple's dissolution, the court awards all the community property to Bob. Laura appeals. Will she be successful?

Yes. In a community property jurisdiction, each spouse owns a present undivided equal interest in the community ("marital") property. Even though the couple's jointly acquired property is titled in Bob's name, Laura still retains the right to her half of the jointly acquired property based on the jurisdiction's adherence to a community property regime.

Is it ever a crime to interfere with a noncustodial parent's right of visitation?

Yes. In some jurisdictions (such as Washington) custodial interference is a crime.

Julian marries Berniece in 1963, separates from her in 1973 and divorces in 2001. He lives with Luisa in California and Nevada from 1981 until hid death in NV in 2003. Although they never celebrated a marriage ceremony, Luisa uses Julian's last name. They hold themselves out has husband and wife. In 2002, Julian and Louise visit Texas several times, the longest trip being two weeks, to visit Luisa's relatives. Although neither CA nor NV recognize common-law marriages, TX does. At Julian's death, Luisa claims Social Security Survivor Benefits as his legal spouse. Will she succeed?

Yes. Luisa is entitled to benefits as the decedent's common-law spouse. A valid common-law marriage came into existence after 2001 (when Julian was divorced from Bernice) based on the couple's visits to TX. The couple cohabited and held themselves out as husband and wife (implying that their conduct indicated that they had a present agreement to marry).

Husband calls Lawyer, who has previously represented him in business dealings, and asks Lawyer to represent Wife in their divorce. Lawyer agrees and draws up a complaint and property settlement. Lawyer gives documents to Husband who has Wife execute them. Wife later charges lawyer with malpractice when she discovers that she surrendered her right to an interest in certain property--the existence of which Husband did not disclose to Lawyer. Will Lawyer incur liability for dual representation?

Yes. Many states regard dual representation in a divorce action as unethical because it presents an inherent conflict of interest. In this case, Lawyer may be found negligent for breaching his duty of care to Wife. Lawyer should have obtained verification of Husband's financial statement or, at least, informed Wife of the limited representation that she was receiving and pointed out that she might need independent advice.

Juliet is the nine-year-old daughter of divorcing parents, Margaret and Samuel. In the divorce proceedings, the court awards custody of Juliet to Margaret, with liberal visitation to Samuel. Juliet lives with Margaret, but continues to maintain a close relationship with Samuel. Samuel, a Christian fundamentalist, fervently hopes that Juliet will be raised in his religion and takes her to his church as often as possible. Margaret, who no longer practices any religion, opposes Sam's efforts to raise Juliet as a Christian fundamentalist. When Samuel secures a custody modification granting him joint custody so that he may take Juliet to his church, Margaret argues that the order interferes with her free exercise of religion. Will Margaret be successful?

Yes. Margaret should prevail because the custodial parent has the right to determine the child's religious upbringing. Therefore, Margaret has teh right to determine if her daughter acquires religious training or not. Margaret's decision whether or not to practice any religion is protected by teh First Amendment.

Husband and Wife are married for 20 years. Several years ago, Wife had an extramarital affair of which Husband was aware. After the Husband's discovery of Wife's affair, the couple continues to live together and have sexual relations. Wife petitions for divorce on the ground of Husband's cruelty in a fault-based jurisdiction. She maintains that he is frequently drunk, vomits throughout the house, provokes arguments, threatens violence and makes excessive sexual demands. Husband defends by alleging Wife's adultery. Will Wife prevail?

Yes. The divorce was properly granted on the ground of Husband's cruelty. Under the recrimination doctrine (where both parties are at fault), Wife's adulterous conduct would prevent her from obtaining the divorce she sought. However, here Husband condoned her adultery by continuing to live with her and having sexual relations with her, after he had knowledge of her sexual indiscretion.

Miriam and Toby divorce. The court awards custody of their two-year-old daughter, Dolly, to Miriam. A few months after the divorce proceeding, Miriam is in a minor automobile accident. Toby agrees to care for Dolly until Miriam recovers. However, when Miriam has recovered, Toby refuses to return Dolly. Toby petitions for a modification of custody. Based on the best interests test, the court modifies custody and awards custody to Toby. Miriam appeals. Will she be successful?

Yes. Miriam will be successful in seeking a reversing of the custody award to Toby. The trial court may have used the wrong standard for modification. -The most commonly-accepted standard is whether a material or substantial change of circumstances has occurred, after the original decree. -Some jurisdictions require an even stricter standard of serious endangerment. -Only a few states use the best interests standard for modification, which was the standard used in this case. The rationale for applying a stricter standard for modification (than for initial awards) in the interests of promoting stability for the child. Here, nothing has occurred that would constitute a material or substantial change of circumstances. Miriam's injuries from a minor auto accident probably will not qualify. Certainly no endangerment to Dolly has occurred. In the interests of stability, the court should permit Dolly to remain in Miriam's custody.

May states restrict marriages between parties related under concepts of legal affinity which have nothing to do with blood/genetic relation?

Yes. Some states restrict marriages between parties related by affinity, such as marriage with in-laws, step-relatives or relatives by adoption.

Stuart calls 911 and reports that his wife Beth is unconscious. The operator tells Stuart how to start CPR. When paramedics and police arrive promptly, they find Beth unconscious. Stuart maintains that he has done CPR for 20 minutes, but the police notice that Stuart's hair is wet and that the shower walls are wet. Beth was without oxygen for more than five minutes and was placed on life support but subsequently dies. Bruising on her arms indicates drug use and that Stuart injected her with cocaine. Stuart is charged and convicted of manslaughter. He appeals. What result?

Yes. Stuart's violation of his duty as a husband to provide medical care to his wife and to summon aid for someone he helped place in danger amounted to recklessness sufficient to rest a manslaughter conviction upon.

Mary and Frank have been married for six years and are the parents of five-year-old Timmy. They separate because of Frank's violent temper and problems with alcohol. The trial court awards custody to Mary and provides that Frank would have no visitation rights until a shrink (chosen by the parties) recommends that such visitation should commence and on what terms, guidelines and locations. The shrink refuses to continue treatment until the father pays the balance of his fees, thereby effectively denying the father visitation. When Frank challenges the court order as an abuse of discretion, will he prevail?

Yes. The appellate court should invalidate the delegation of authority about visitation (by Frank to Timmy) to the psychiatrist. Jurisdiction over custody and visitation is vested in the court's discretion; no authority exists for the delegation of such jurisdiction to someone outside the court.

Debbie and Bill divorce. they are awarded joint legal custody of their four kids. A few months later, one of the children dies. In the midst of a dispute about child support obligations, Debbie files a petition alleging (among other claims) that she should be reimbursed by Bill for half of the medical and burial expenses she incurred with respect to the deceased child. Will Debbie prevail?

Yes. The necessaries doctrine requires that both parents (even divorced parents) are jointly and severally liable for the medical and funeral expenses of their minor children. Although some states have statutes so providing, other states have determined that such a duty exists at common law. William will have to pay half of the deceased child's medical and burial expenses.

Must a defendant in a divorce have notice of the pendency of the divorce action?

Yes. This is required, despite the lack of necessity of personal jurisdiction over the defendant for the divorce decree to be valid.

Gail and Richard have been married for 20 years when Richard moves out of the house and begins engaging in affairs with several women. Three months later, Gail retains legal counsel and files for no-fault dissolution. If Gail resides in a jurisdiction that follows the UMDA approach to no-fault divorce will she prevail?

Yes. UMDA permits divorce if the marriage is "irretrievably broken." This divorce ground may be established either by a six-month separation or by a showing of "serious marital discord adversely affecting the attitude of one or both of the parties to the marriage." Although Richard and Gail have only been apart for three months (not the requisite six), Gail could prove that Richard's extramarital affairs adversely affect her attitude toward continuation of the marriage.

May unmarried cohabitants be denied unemployment compensation if they leave their employment because of family-related reasons? Upon what might this decision depend?

Yes. Unmarried cohabitants may be denied unemployment compensation if they leave their employment because of family-related reasons. The outcome may depend on a plaintiff's ability to prove that the relationship resembles a traditional family unit. However, in states with domestic partnership legislation, persons who register as domestic partners are permitted to relocate without disqualification regarding unemployment benefits.

Husband is pronounced dead. Hospital asks Wife to make an anatomical gift of his remains. Wife refuses. Hospital documents Wife's refusal, based on Husband's previously-expressed wishes, in the hospital records. Pursuant to established state procedures, the coroner (who fails to inquire as to the existence of objections and follows standard policy by not inspecting medical records) removes Husband's corneas. Wife institutes suit for deprivation of property (her property interest in her husband's corneas) under color of state law, alleging a violation of due process. Will she prevail?

Yes. Wife has a legitimate claim of entitlement in Husband's body that is protected by due process. The coroner's policy fails to provide adequate procedures for deprivation of that property interest.

Wife and Husband divorce in a common law jurisdiction after a 30-year marriage. At the time of the divorce, Husband is eligible to receive military retirement benefits based on his service in the Marines. Husband argues that his military retirement benefits are exempted from distribution by the divorce court because military retirement benefits are subject to federal law. (At the time, federal law provides that military retirement benefits are the serviceman's separate property rights.) Will she prevail?

Yes. the USSC has held that military retirement benefits are exempted from distribution by state divorce courts on the basis of federal statute. However, Congress has overruled that decision by enacting the Uniformed services former spouses' protection act. As a result, a state court has the ability to distribute military pension rights. Wife will be able to reach a share of Husband's military pension benefits.

William and Joan are the divorced parents of three-year-old Don. For the past year, William has failed to pay court-ordered child support to Joan. Joan brings an action to hold William in contempt. After a trial, a court finds William in contempt of court, orders him to pay his child support arrearages, and conditions William's visitation rights on the payment of his past child support. William appeals. Will he prevail?

Yes. the appellate court should reverse teh trial court's decision. According to the general rule, visitation and support are independent variables. That is, visitation should not be conditioned or denied based on payment of support. Thus, although the trial court can hold William in contempt and order him to pay his past-due child support obligations, it should not condition or terminate William's visitation rights based on the fulfillment of his child support obligations.

Husband files for divorce in a fault-based jurisdiction, alleging that Wife is guilty of adultery. He hires a private investigator who testifies to the effect that Wife's lover visited the home on several occasions and stayed until the early hours of the morning. Husband also introduces Wife's entries in her calender date book as admissions of her adulterous sexual conduct. Husband seeks reversal of award of permanent alimony to Wife based on her marital fault. Will Husband succeed?

Yes. the evidence (investigator's reports of the lover's visits to the home and Wife's date book entries) were sufficient to establish Wife's disposition and opportunity to commit adultery. Therefore, the court's denial of the award of permanent alimony to Wife was proper.

Jennie and Doug are married in 1987. A few months later, Doug is hired by the City Fire Department. He immediately begins making contributions from his wages to the state firemen's retirement fund. In 2007, Jennie and Doug divorce. At the time, Dough has completed 19.5 years of employment with the city fire department. According to his employer's policy, Doug cannot draw a pension from the fund until he has completed 20 years of service. In the divorce proceedings, the trial court finds that the value of the couple's marital property interest in the firemen's retirement fund consists of Doug's cash contributions to the fund until the date of the divorce, and awards Jennie half that amount. Jennie appeals, arguing that she has a property right in Doug's nonvested pension benefits. Will she prevail?

Yes. the traditional rule was that the nonvested pension rights were not property, but were a mere expectancy and thus not an asset subject to division upon dissolution of a marriage. However, courts have subsequently ruled that the former rule was inequitable and that the marital community has a property interest subject to division at divorce in the employee spouse's nonvested retirement benefits prior to the time the employee spouse's right to receive the pension becomes vested. Thus Jennie has a property right in Doug's nonvested pension benefits in the firemen's retirement fund.

Do all states set a minimum marriage age? What is the minimum marriage age for most states?

Yes; all states set a minimum marriage age. For most states, that age is 18.

Holding of Roe v. Wade

a state criminal abortion statute that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, violates Fourteenth Amendment Due Process.

What is the distinction between connivance and collusion?

connivance includes *consent* by one spouse to the other spouse's marital misconduct. Collusion includes a spousal *agreement* to commit a marital wrong

In what areas has the Supreme Court found constitutional protections for nonmarital children? In what areas has the Supreme Court found that nonmarital children are NOT protected by the Constituiton? Try to name some cases.

o Constitutional Protections Found: USSC has found statutory benefits schemes which discriminate against nonmarital children are unconstitutional. Weber v. Aetna Casualty and Surety (U.S. 1972) (state workers' comp law) Levy v. Louisiana (U.S. 1968) (wrongful death) o Constitutional Protections Not Found: -Court less willing to invalidate restrictions on nonmarital children's inheritance rights. Lalli v. Lalli (U.S. 1978) (statute requiring judicial paternity for nonmarital child to inherit from father) --BUT, Trimble v. Gordon (U.S. 1977) (statute under which nonmarital children can inherit from fathers only if fathers marry mothers post-birth or acknowledge the child violates equal protection) -Immigration. Nguyen v. INS (2001) (statute making it more difficult for nonmarital child born abroad to one U.S. parent to claim citizenship through taht parent if the citizen-parent was the father does not violate equal protection guarantee of the Fifth Amendment.)

What are some federal remedies for nonpayment of child support?

o Criminal law. Under the Child Support Recovery Act, it is a federal crime to willfully fail to pay a "past due support obligation" for a child who resides in another state, if the obligation is over a year old or if it is of $5K or above. o Wage garnishment. Federal statute permits an employer to pay an employee's child support obligation directly to the other spouse on behalf of a child. Under federal statute, all support orders must now include a conditional order for wage withholding, once payemts are in arrears. o Tax refund interceept and diversion to child suport obligees. o Passport denial.

States are limited in their ability to constitutionally extend their jurisdiction over nonresidents, as their doing so must accord with the US Constitution's Due Process Clause and with state long arm statutes. How does the current method by which states assert jurisdiction over nonresidents differ from that in whcih courts engaged pre-1970s?

o Pre-1970s, states occasionally allowed the assertion of jurisdiction over nonresidents in domestic relations cases by construing obligor's actions to be "tortious acts" or "the infliction of harm" under their long arm statutes. Other states permitted the exercise of jurisdiction so long as it met "constitutional requirements of due process." o In recent years, many states substantially increased the scope of jurisdiction over nonresidents in domestic relations cases by revising their long arm statutes to include specific provisions for the assertion of jurisdiction in claims for family obligations.

What are the two approaches that states have taken to whether a noncustodial parent should be held liable for post-majority child support for costs like college expenses?

o Some states rigidly enforce the statutory age limitation of 18 years and refuse to award post-majority support. o Other states, by statute or case law, permit support through college through a wide variety of Clegal doctrines.