Family Law

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.

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."

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.

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.

By what method are most custody arrangements made?

By private agreements between teh divorcing parents.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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)

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."

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.

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.

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.

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.).

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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).

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.