Professional Documents
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History
Family law has undergone a series of revolutions over the past 100 years
A. Women’s Rights
Formerly: In the context of marriage, a woman was her husband’s property. A
married woman had no legal existence apart from her husband. Therefore, she could
not contract, could not have a residence.
Over time: Married Women’s Property Acts conferred benefits upon women
Currently: Women may be equals in theory, but much gender asymmetry still exists
in the context of marriage.
B. Divorce
Formerly: Divorce was incredibly hard to obtain because you had to get the State
Legislature to pass an act declaring you divorced.
Over time: Divorce became part of the legal/court system – easier, but not easy,
because could only get a divorce if one party was at fault.
Currently: Most states have moved from fault-based to no-fault divorce.
C. Same-sex Marriage
Formerly: Marriage is viewed as a relationship between one woman and one man.
Currently: This is a very contentious and current issue. Same-sex marriage is a hot
topic that has been resolved differently in various states.
◊ MA, CT – same-sex couples CAN married and are viewed as married.
◊ VT – same-sex couples can get civil unions, which are the functional equivalents
of marriage (get the same benefits, rights and duties), but are not married.
◊ NJ, CA, HI – there is some other type of recognition of same-sex relationships –
i.e. partners, reciprocal beneficiaries
If U.S. Constitution does not have a right, State governments may have it.
If U.S. Constitution has a right, State governments must have it.
14th Amendment: nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
D. DUE PROCESS
14th Amendment: applies the individual rights of the Bill of Rights to the States
Procedural
◊ i.e. deprivation of physical liberty, right to be free of unreasonable search and
seizure (4th Am.), right to be free of cruel and unusual punishment (8th Am.), the
right not to incriminate oneself (5th Am.)…
◊ the law cannot be vague
Substantive due process
◊ Laws cannot be purely arbitrary or unduly trench on people’s fundamental rights.
◊ Examples of fundamental rights: right of privacy, right to marry
◊ How you frame a fundamental right affects judicial decisions as to whether there
is a fundamental right.
• Example: Fundamental right to be free from government interference in
details of family life versus no fundamental right to live in a contiguous
suite of rooms with all of your grandchildren.
• Example: Fundamental right to privacy of sexual relations versus no
fundamental right to engage in sodomy.
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E. EQUAL PROTECTION
14th Amendment: “nor shall any State…deny to any person within its jurisdiction the
equal protection of the laws.”
State policies that rely on classifications among people such as income, race, gender,
weight, intelligence, citizenship, age, or residency .
3 ways to approach a question of equal protection:
◊ Rational Basis – Is the classification plausibly related to a legitimate state goal?
The rationale does not have to actually be used by the legislature, there just has to
be a plausible connection or some sort of rational justification for the rule. The
majority of classifications fall here – i.e. age is not a suspect class.
◊ Intermediate or Heightened Scrutiny – used specifically in sex and sexual
orientation cases – classifications by gender must serve important governmental
objectives and must be substantially related to the achievement of those
objectives. Used when statutes openly discriminate on the basis of sex or that
can be shown to be motivated by a discriminatory purpose. Also used when
classifications affect the state’s distribution of fundamental rights.
• For example, classifications based on sex – i.e. women - the court
departs from the rational basis test when evaluating race-based
classifications.
• Issue: should sexual orientation itself be a classification that triggers
heightened scrutiny?
◊ Strict Scrutiny – Court demands something more than a rational basis to support
a statutory classification. Used when statutes are directed at suspect classes. I.E.
race, ethnicity, religion.
• For example, the court departs from the rational basis test when
evaluating race-based classifications.
• If a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to
effectuate only those interests.
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MARRIAGE
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White woman and a Chinese man got married in North Carolina to evade VA law
prohibiting interracial marriage.
Couple lived in VA.
Wife seeking annulment because illegal to marry interracially in Virginia. White
person can only marry another white person.
If VA resident goes out of state to marry someone they cannot marry in VA and then
returns to the state, the marriage is VOID.
Holding: Equal Protection Claim denied: Rational Basis standard.
Marriage is a right, but interracial marriage is not a right
Anti-Miscegenation was a legitimate purpose- as long as it was for a legitimate
purpose,
it was fine
Loving v. Virginia (US 1967) (C.J. Warren):
Facts:
Black woman and white man got married in D.C. to evade VA law prohibiting interracial
marriage (same as Naim).
Couple lived in VA.
Holding: Virginia’s anti-miscegenation law was invalidated on both EP and DP claims!
It violated the Equal Protection Clause = unsupported race-based classification: a black-
white couple could not marry, whereas a similarly situated black-black or white-white
couple could.
It also violated Substantive Due Process = statute unjustifiably interfered with citizens’
fundamental right to marry. Effectively overruled Naim v.Naim.
This case is seen as a victory for the Civil Rights Movement on the Equal
Protection Clause Arguments. However, Part II of the decision (the due process
argument) turns out to be problematic for future cases.
Equal Protection
• Equal application argument is bullshit
• Court applied strict scrutiny because this is a racial classification
• There is no justifiable governmental objective to support the use of the
classification; white supremacy is not a proper objective.
• Even applying rational basis, there is no legitimate plausible governmental
objective that justifies this law.
• Blatant discrimination
Due Process
• Fundamental Right Argument: this is a blatant interference with the
fundamental right to marry
o Leaves open the question of what constitutes a legitimate and
justified interference with the fundamental right to marry.
Miscegenation Statutes:
• Equal Protection Argument
o VIOLATION:
Equal application theory is a crock of shit. The accused people are
subject to a different punishment for the same act because of their race.
If two white people or two black people were similarly situated, there
would be no violation of the second law. (Pace)
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States Rights – family law is state law; states have the ability to regulate
marriage how they see fit. Constitution was not supposed to be a
limitation on states’ ability to regulate marriage.
• Due Process Argument
o VIOLATION:
States cannot regulate marriage because it is not sufficiently connected to
health or morals (Naim – California rule in 1955)
o NOT A VIOLATION:
Marriage is within the State’s sphere of control – it is a States’ rights
question (Naim)
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a. If yes – valid
b. If no – invalid
4) Is the statute sufficiently tailored to meet only this legitimate purpose?
a. If no (overbroad) – invalid
b. If yes – valid law
**final moral: marriage is a fundamental right. If the State is going to be issuing marriage
licenses, then it is an important individual right for which the State cannot arbitrarily or
inappropriately draw distinctions between who can and cannot get married OR
substantially infringe on the right to marry! But it can impose reasonable regulations on
marriage.
II What is a Family?
4. Objective/Traditional DEF: Family = a group of individuals related by blood, marriage,
or adoption (a relationship that can be proven by objective legal fact).
5. Functional DEF: Family = a group of people with whom you have a “domestic bond” or
“people you live with.” A group of people who have a “bond that is, in some way, like
that bond traditionally associated with people to whom you are related to by blood,
marriage, or adoption.” Someone with whom you are economically intertwined.
Someone with whom you co-parent.
Functional definitions represent what families do, but raise issues of proof
6. The answer to the question of “who is family” or “who can marry” will be
different in different contexts. It is a matter of public policy and statutory purpose.
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When considering what kinds of families we want to give certain protections to, we
should look to the functional characteristics of the relationship.
Examples: Moore v. East Cleveland; Braschi v. Stahl; Dunphy v. Gregor; Baehr v.
Miike
Look to factors such as:
Duration of relationship
Degree of mutual dependence (financial and emotional)
Extent and quality of shared experiences, daily life
Members of same household
Whether they related to each other in attending to life’s mundane requirements.
7. Cases = zoning ordinances that limit residency to specific definitions of family.
Zoning ordinances are made by police power conferred on municipalities.
Village of Belle Terre v. Boraas (US 1974) (Douglas):
Facts:
There was a village ordinance restricting land use to one-family dwellings and defining
family as either people related by blood, adoption, or marriage, or 2 unrelated persons,
living and cooking together as a single housekeeping unit.
Six college students who were living together challenged this statute
Holding: Statute was upheld
Applies rational basis: Village has rational reasons for limiting # to 2 (tranquility,
reducing cars, less noise, safety).
Court held 6 college students living together do not satisfy the definition of “family.”
Court holds that no fundamental rights are implicated here. There is no discrimination
against “non-traditional” families – allows 2 non-related people, even of same sex, to
cohabitate.
Belle Terre DISSENT (Marshall): Would apply heightened scrutiny because this statute
implicates fundamental rights. Marshall thinks there are Constitutional protections for the
selection of ones living companions. Freedom of association and privacy (deeply personal
choices of intimate relationships within the home). Constitutional infringements cannot occur
absent legitimate government objectives and tailored statutes. Zoning rules are plausible, but not
when they unjustifiably distinguish between people on the basis of a fundamental right. This law
also is not tailored to meet the goal.
Moore v. City of East Cleveland (US 1977) (plurality decision – Powell – incl. Marshall):
Facts:
The City of East Cleveland (P) had a housing ordinance limiting occupancy of a dwelling
unit to members of a single “family,” that word being limited to a few categories of
related individuals
Mrs. Moore (D) was convicted of violating the ordinance because she had two small
grandsons living with her who were first cousins to each other rather than brothers.
The one grandson had come to live with D, her son, and that son’s child when his mother
died.
Mrs. Moore argued that the ordinance was unconstitutional under the Due Process Clause
Holding: It is unconstitutional for an ordinance to force citizens to live in certain narrowly
defined family patterns, as this one does.
The Court invalidated an ordinance limiting occupancy of any dwelling unit to members
of the same “family” defining family to include only certain combinations of blood
relatives.
Court says this nuclear family = arbitrary line.
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Difference between Moore and Belle Terre = Blood relative vs. unrelated group of people?
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Under Glassboro, maybe – the 2 friends are comparable to the 10 students in that
they function as a family unit.
Matthew Kavanagh, “Rewriting the Legal Family: Beyond Exclusivity to a Care-Based
Standard”
Law should move away from exclusive definitions of families and move towards a
familial definition based on care-giving. People who provide care to children, have
a good faith bond with children, and whom children view as family, should be
defined as such and be given the rights and protections that other family members
get.
This would fulfill the needs (instead of interests) of children better and provide more
benefits to children from the wider familial network.
Should view “The Family” as a web of care-giving relationships – many of which do
not fit into neat categories (“BAM”).
This definition will lead to public policy and regulation that is a) better for children
and b) better for families.
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Wife v. Husband
Facts:
Mr. McGuire (D) was very tight with his money and refused to give his wife any funds
other than to pay for groceries, though they continued to live together.
Wife asking court to order her frugal husband to give her more money to spend (wants to
go to movies, have indoor plumbing).
Holding: No support payments can be granted where the parties continue to live together as
husband and wife.
No action for support within the context of marriage.
This is NOT divorce proceeding! Parties still live in same house – but if they were
separated, this could be a valid maintenance claim. Court declines to intervene in the
financial arrangements made within the context of marriage. “The living standards of a
family are a matter of concern to the household, and not for the courts to determine.”
Even in the absence of a divorce claim, a claim for necessaries would be a valid claim.
Doctrine of Necessaries = husband has a duty to support his wife by providing
what is necessary to spouse’s survival and minimal maintenance (i.e. lodging,
food, clothing).
Decision is implicitly based on privacy and sanctity of marital relationship –
absent abuse, neglect or abandonment, arrangements between spouses are in the
realm of family privacy and courts should not interfere.
McGuire DISSENT: No precedents exist requiring separation as a condition precedent for a
spouse to file an equity action for maintenance. Would find constructive abandonment and let
wife get support money. Husband provides no/minimal support.
Unfair that a woman who stays in marital home and only gets bare necessities cannot get
any maintenance, but a woman who moves out can get money for more than necessaries.
State objectives should be to keep relationships together – so don’t give wives incentive
to move out/get a divorce because they are dissatisfied with lifestyle.
Griswold v. Connecticut (Douglas) (US 1965):
Director of Planned Parenthood v. The State
Facts:
CT statute prohibited the use of contraceptives.
Director of Planned Parenthood contended that this statute that prohibited the
dissemination of contraceptive information violated constitutional rights of privacy
Holding: A Law restricting the use of or dissemination of information about contraception by or
to married couples violates the constitutional rights of privacy.
This law violates constitutional right to privacy because it impermissibly intervened in
the personal decisions of husbands/wives; directly invades the marital relationship.
Court may not interfere in intimate decisions of married couples = freedom of married
couples to choose the terms of their sexual intimacy. Established constitutional right of
privacy
Right of privacy is inherent in marriage (older than Bill of Rights, basic
fundamental right within the context of marriage) and implicitly necessary to
effectuate the goals of the Constitution.
Griswold CONCURRENCE (Goldberg): CT’s birth-control law unconstitutionally intrudes upon
the right of marital privacy – would narrow holding to apply right of privacy ONLY to married
people.
Griswold CONCURRENCE (White): The statute deprives married couples’ liberty without due
process of law.
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Griswold DISSENT (Black): Right to privacy is being used as a pretext for the court to invalidate
legislation it doesn’t like.
Question left open by Griswold = whether the holding extends the right of
privacy beyond marriage, to reproductive freedom? Eventually YES.
Eisenstadt v. Baird (Brennan) (US 1972):
State Agency (P) v. Distributor of Contraceptives (D)
Facts:
MA law which criminalized the distribution of contraceptives to unmarried people
Baird (D) appealed his conviction of distributing contraceptives to unmarried persons on
the basis that the statute prohibiting such violated the constitution.
Holding: A statute treating married and unmarried people differently regarding contraceptive
devices is unconstitutional: statute struck down
Expanded Griswold’s fundamental right of privacy to unmarried people – privacy is
an individual right. Equal Protection and Due Process. Statute was discriminatory on
its face - applied heightened scrutiny, not rational basis.
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(1) traditional notions of women as dependents are no longer true. This rule leads to
perverse results – the beneficiaries (women who earn more than their husbands) are the very
people that do not need the protection;
(2) even if compensation to women for past discrimination was valid, this law is not
carefully tailored to that end; and
3) sex is not necessarily an accurate proxy for need. It takes no additional work/time to
see if it is the man or woman that needs the money b/c there are equitable distribution hearings
anyway (do not need to use sex as a proxy for need).
Marks the beginning of the use of equal protection clause to invalidate laws
which discriminate on the basis of sex by having men bring suits.
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B. TORTS AND TESTIMONY
Tort Claims Involving Spouses
Definition: Heart Balm Suits = lawsuits with a claim for monetary damages as solace for the
emotional trauma occasioned by loss of love or relationship.
Definition: Heart Balm Statute = laws designed to abolish the common law claims of alienation
of affection, breach of promise to marry, and criminal conversation.
These tort claims were available to men and NOT women. In an effort to bring about
equality between genders – courts could choose either to extend causes of action to
both spouses or do away with the action altogether.
These tort claims invite abuse – spouses utilize them to get $ and, in the time of
fault-based divorce, used to achieve a more favorable settlement.
Intentional Interference with the Marital Relation/Alienation of Affection
Prima facie case of alienation of affection:
• Couple was happily married + genuine love and affection existed
between them
• Love and affection was alienated and destroyed
• Wrongful and malicious acts of D caused the alienation
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HOWEVER, there are other tort theories that ∏s can use in marriage context!
Intentional Infliction of Emotional Distress
To make a prima facie case of IIED:
Wrongdoer’s conduct is intentional or reckless;
Conduct must be outrageous, intolerable, against generally accepted standards of
decency;
Causation between conduct and emotional distress
Emotional distress must be severe.
Osborne v. Payne (KY 2000)
Facts: Husband sues parish priest for seducing his wife.
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Holding: There are remedies and rights of action for victim spouses even if heart balm suits are
abolished – IIED being one of them. Priest’s behavior = outrageous and whole incident rises to
level of IIED.
Combination of relationship (priest) and conduct that separates this from adultery
Loss of Consortium
Definition: consortium = conjugal fellowship of husband and wife, and right of each to
the company, society, cooperation, affection and aid of the other in conjugal relations.
Definition: loss of consortium = emotional distress suffered by a spouse who loses the
company of the other spouse when his/her mate is physically injured due to another’s
tortuous conduct.
Arguments to KEEP action:
o There is a need for both LOC and Alienation of Affection claims – LOC is
different b/c while emotional injury is still suffered by one spouse, there is a
physical injury to the other.
Arguments to ABOLISH action:
o Need to draw a line between people who can claim emotional distress and
those who can’t. Bystanders versus family.
• Costly and difficult to assess damages and evaluate emotional distress
• Allows estranged spouses to sue for something that may not exist in
actuality.
Romero v. Byers (NM 1994)
Facts: Husband killed in auto collision and wife sues for loss of consortium and household
services.
Holding: Court permitted wife to add a loss of consortium claim for herself in her husband’s
personal injury suit. Wife can sue the driver of a car that killed her husband for her loss of
consortium.
1) No longer the majority rule among jurisdictions to forbid it
2) Loss of consortium is no longer regarded as an uncertain and indefinite claim; it has been
defined as “the emotional distress suffered by one spouse who loses the normal company
of his or her mate when the mate is physically injured due to the tortuous conduct of
another.
3) N.M. tort law is more developed in re duty owed to the plaintiff than it was when the
earlier claims were denied: it has been settled that a duty is owed where harm to the
plaintiff was foreseeable.
4) The old fear of double recovery was unreasonable, because loss of consortium has been
defined such that it does not include loss of household services. No duplicative claims, no
double recovery.
5) The old let-the- legislature-decide reasoning was not sound because “courts . . . have
been the primary instrument for change in the common law.”
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Allows people who are in a bona fide, functional equivalent, marriage-like relationship to
recover for emotional damages suffered.
There are still other requirements to make out a prima facie claim that will weed out false
claims.
Factual inquiry as to the nature of the relationship ensures that the person asserting the
claim fits within the class of persons the law was designed to protect.
Perverse, but good, result of weeding out meritless claims from otherwise qualified
claimants, i.e. estranged spouses.
Reasons AGAINST NIED claim:
No clear line as to who can recover – enormous, unforeseeable scope of liability for the
negligent actor.
May prevent recovery by people with actual, legally-recognized familial relationships.
Slippery slope – if you allow fiancées to recover, what about BFFs?
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Defense to tort claim – special matters of the marital relationships, such as sexual
intimacy, are not subject to judicial review by tort lawsuit.
Arguments FOR exception:
Sexual privacy argument (Lawrence v. Texas). Injuries resulting from sexual relations
between spouses should not give rise to a tort lawsuit.
Arguments AGAINST exception:
Perpetrators ought not be allowed to escape liability for wrongful acts just because they
occurred during the marital relationship.
Testimonial Privileges
Spousal Confidential Communication Privilege
Prevents testimony regarding confidential communications between spouses (unless both
spouses consent).
i. Communications = oral, gestures
ii. Confidential = within the presence of only the spouse – intended to
be kept between the spouses
Covers communications that occurred during the marriage.
No one can testify about the communication.
o There are 3 exceptions (NY) to this rule (spouse CAN testify):
Criminal activity is aimed at the other spouse
communication is made in presence of 3rd parties
Defendant in communicating relied on other grounds, i.e. silence by fear.
The privilege is invoked forever – even if parties divorce or die.
• Privilege does not apply when spouses litigate against each other OR if they
are “partners in crime.”
i. Statements + gestures leading up to abetting might be protected, but
at the moment of being a partner in crime – the exception kicks in.
ii. When partners in crime exception kicks in – STD applies.
• In NY – this is the only spousal testimonial privilege
Reasons FOR SCCP:
Spousal honesty – want spouses to be honest with each other.
Marital stability – want to preserve marriages
Unified entity of marital relationship – the idea that a marriage is a unit and what goes on
within a marriage should stay there.
Right to privacy in family matters
Prevents bribery from officials and pitting the spouses together, like what happens in
Trammel because both spouses are forbidden from testifying.
Limited in scope - only confidential communication – not everything.
Clear line – it lasts forever and applies to everything said and done within the context of
marriage.
Partner in crime exception weeds out spouses colluding to commit crimes.
Reasons AGAINST SCCP:
Privacy at the expense of TRUTH.
Marriages don’t last forever anymore – leads to preposterous results – i.e. husband can
tell 5 different wives the same story and the privilege extends to all of them because told
during marriage.
Spouses may conspire to commit crimes in reliance on this privilege.
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Ignores social realities and denies a right to a class of people who function as spouses,
but are not legally-recognized as such. Ridiculous result that an estranged spouse is
protected, but not a real love.
o Should the exception be extended to functional equivalents of marriage
relationship? Of any intimate relationship?
o 1 get out of jail free card? Allow everyone to have 1 iron-clad co-conspirator.
Privilege hurts the weaker spouse (cannot go to authorities b/c afraid and even if you did,
it would be inadmissible)
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CRIME IN THE FAMILY
Crimes within the family (e.g., assault of spouse/children, rape) are treated and
conceptualized differently than crimes in other contexts. Why?
There is an ongoing relationship – families live with each other so it is difficult to
determine “who started it.” Police may be hesitant to enforce.
The family is a particularly private and autonomous domain – all the “criminals”
act in privacy of own home and without external witnesses.
Family members have a vested interest in not hurting other family members.
Victims may be reluctant to complain, press charges, or testify.
For example – specialized procedure for domestic violence as opposed to regular
abuse.
For example – rape was historically treated differently depending on whether the
victim was married or unmarried.
Rule = MPC §213.1 – Rape statute explicitly exempts spouses from class of
people whom you can rape.
MPC §213.6 – Applies a functional definition of spouse. Extends the exemption
to people living as man and wife, and removes it from legally separated spouses.
Marital Rape Exception
Idea that one spouse cannot rape the other.
Justifications for MRE (cannot have rape in marriage):
Blanket/Implied Consent – woman consents to sex all the time when she agrees to be
married
Chattel – woman is property of man, can do what he wants with his own property
Unity of marital identity – spouse cannot rape himself.
Fraud potential – spouses may fabricate charges for revenge
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Facts:
Evelyn Humphrey shot and killed her live-in-boyfriend, Albert
Hampton.
She immediately confessed to the killing and made a claim of
self-defense at trial.
Trial counsel introduced evidence of Battered
Woman Syndrome, which the judge instructed the jury to disregard when
considering the objective reasonableness of her actions.
Holding: Evidence of Battered Woman Syndrome is relevant to both
the reasonableness and the subjective belief for the necessity of self
defense and a jury may consider the evidence for both prongs.
Reasonable person standard: The standard of case exercised by one
who possesses the intelligence, education, knowledge, attention, and
judgment required by society of its members when governing behavior;
the standard applies to a person's judgment when determining breach of
a duty under the theory of negligence.
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Holding: The court must apply the express statutory factors in determining the appropriateness of
an abuse prevention order.
Statute directs the court to consider several factors which it did not do here.
o Ex parte proceeding
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property interest in the enforcement of her restraining order, therefore the police
behavior clearly created a due process violation.
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Historically: Prenuptials were antithetical to public policy and only protected the husband who
had more money and power. Stein: Prenuptials protect against divorce because they force
couples to discuss the essentials of marriage.
But what are the essential functions of marriage that you cannot change?
Duty of Support + Duty of Care
Spouses CAN make contracts in certain contexts – i.e. business contracts for
services outside the home.
Spouses CAN make prenuptial agreements. Contracts BEFORE marriage that provide for future
separation after marriage (discuss what will happen upon dissolution of marriage or death –
assets, obligations, support).
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Holding: An antenuptial agreement disposing of property and maintenance upon divorce is valid
if made after full disclosure and if it is not unconscionable at the time enforcement is sought.
Court upheld validity and enforceability of a prenuptial agreement signed before
marriage that deals with payment of maintenance and disposition of property upon
dissolution or divorce.
Prenuptials may provide for more stable marriages – both parties know result if
they break up. Prenuptials do not destabilize marriage or promote divorce.
Prenuptials prevent nasty court battles later by being mature and rational about
the issues now.
Prenuptials do not and cannot modify the essentials of marriage.
Prenuptial agreements may be modified subsequent to marriage.
Prenuptials are common among 1) second-timers and 2) rich people.
Presumption of validity – prenuptial agreements = contractss that will be
enforced and binding on parties absent fraud, misrepresentation or duress.
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Holding: Court awarded custody of children to wife. Did not enforce prenuptial agreement
provisions that neither party pay alimony or child support, husband be awarded custody of
children and husband have power to determine visitation arrangements
o Cannot be unconscionable in substance at time it was signed
o Cannot be procured by fraud or duress
o Prenuptials are not enforceable re: child custody, visitation, or
support.
Court has independent duty to look at BIOC – no one can say at
beginning of marriage who will be better parent at the end of the
marriage.
BIOC – cannot contract away duty to provide support to
children.
Marvin v. Marvin (CA 1976)
Female Cohabiter (P) v. Male Cohabiter (D)
Facts:
Michelle (P) and Lee (D) Marvin allegedly entered into a cohabitation arrangement
whereby Michelle (P) agreed not to pursue her career and to live with Lee (D)
performing domestic services in exchange for equal sharing of the household income.
Following the termination of seven years of cohabitation, Michelle (P) brought an action
against Lee (D) to recover property accumulated during that time.
Holding: Where cohabitation is expressly or impliedly founded on a sharing-of-property basis,
the non-acquiring partner has an interest in property acquired during cohabitation.
Legal relationships (contractual, implied and express, and quasi-contract, quantum
meruit remedies) arise out of cohabitation arrangements even though the parties are
not married.
o Opens the door for cohabitation contracts. Established the idea of “pal-imony.”
∏-woman asserts oral contract ∆-man told her that he doesn’t believe in
marriage, but if she lived with him, gave up her career, he would give her half of
everything he earned. They split up and he didn’t give her anything.
o Agreement between non-marital couple are valid – fail only to the extent
that they are ONLY for sexual services. Here, it was not just about sex – she
performed domestic tasks as well. Remanded for determination of whether a
contract existed.
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aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined
or imprisoned in like manner.
Legitimate state interests that justify imposition of incest restriction =
Prevent birth defects – increased potential for and likelihood of birth defects when
relatives procreate.
Public revulsion (“yuck” factor) – natural repugnance of people toward marriages of
blood relatives + moral condemnation
Detrimental effect on children
Damaging effect on family harmony
Possibility of pressure, coercion, or non-consent via familial dynamic.
Social Engineering and Channeling function of State
Only partial restriction on fundamental right to marry – can marry anybody else in the
world except their family
Family is supposed to be safe, non-sexual place
Why state doesn’t have legitimate interest in restriction?
No evidence that birth defects actually occur – using relatedness as a proxy for
discrimination.
A lot of people find a lot of things re: sex yucky – why this?
Lack of empirical evidence or rational argument that children of relatives turn out
especially screwed up – the same was said for interracial parents, but now it is accepted
that there is no detrimental effect on kids.
Fundamental right to marry
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The couple lived in NY and went to RI for sole purpose of evading incest statute in NY
(like Naim v. Naim) b/c Jewish uncle-niece could get married in RI.
Husband/uncle wants to be declared a surviving spouse for the letters of administration
for the deceased wife’s estate.
Their daughter wants the letters of administration and is challenging the validity of their
marriage.
NY Court recognizes the RI marriage between uncle-niece.
Court holds that there is a presumption in favor of recognizing out-of-state marriages
(comity – place of celebration rule) – absent express statutory indication that NY will not
recognize marriages conducted in foreign sister states, but invalid in NY, they must give
effect to the marriage. NY must have a clear intent not to recognize the marriage. Also,
not entirely against public morality/policy.
May’s Estate DISSENT – NY Dom. Rel. §5 = evidence that NY public policy is against incest
and that NY did not intend to recognize incestuous marriages effectuated out of state.
Totally against natural law. There is a built in public policy exception to FFC clause. Too big
of a burden to expect legislature to delineate every single type of marriage it does not mean to
include.
Default: recognize rule of celebration unless morally impulsive (in statute)
Implications for gay marriage are enormous unless there is an express statutory statement that
State 1 will not recognize marriages of this sort made in State 2.
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Polygamy
Definition: polygamy = plural marriage. All 50 states have laws prohibiting polygamy
NY Dom. Rel. Law §6: Void Marriages. A marriage is absolutely void if contracted by a
person whose husband or wife by a former marriage is living, unless either: 1. Such former
marriage has been annulled or has been dissolved…; or 3. such former marriage has been
dissolved [due absence or abandonment].
Legitimate State Interest for Restricting Polygamous Marriages:
Not a complete bar on marriage – you can get married – but only to one spouse at a time!
You can get remarried if 1st spouse dies, you get a divorce or an annulment.
Detrimental to children – not good for child’s psychological well-being – having more
than 2 parents may lead to confusion – 2 is all we need.
Disruption of family harmony – spouses vying for attention, love, resources – anger +
jealousy
Bureaucratic and administrative difficulties – how do you know who is the spouse for
purposes of intestacy, insurance and taxes?
o Potential for abuse – testimonial privilege being extended to more than 1
person.
o Historical definition of marriage is between 2 people, not more than 2.
o Financial Impracticability – harder to finance many families with 1
income – expenses are way higher, more children
o Gender asymmetry and skewed power dynamic
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After the husband completed the application, the county clerk denied him and the second
woman a marriage license because Utah prohibits plural marriages.
Holding: The right to privacy and other individual constitutional rights do not protect polygamist
marriages.
State has a compelling state interest in banning plural marriage. Not a violation of
privacy b/c not regulating sexual conduct – just regulating marital conduct.
Counterarguments why there is NO state interest for restricting polygamy:
1. Constitutional, fundamental right to marry – does not limit # of marriage partners you can
have – also, it is a complete bar to marriage with that person – you cannot change the fact
that you are related – like race.
2. Freedom of religion
3. Freedom of privacy
4. Freedom of association
5. Even if it is constitutional restriction – maybe public policy should favor polygamy –
increase # of people who are married, legitimates more children
6. No detriment to family harmony
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NY Dom. Rel. Law §7: Voidable Marriages. A marriage is void from the time its nullity is
declared by a court of competent jurisdiction if either party thereto:
Is under the age of legal consent (18), provided that such nonage shall not of itself
constitute an absolute right to the annulment of such marriage, but such annulment shall
be in the discretion of the court which shall take into consideration all the facts and
circumstances surrounding such marriage;
Is incapable of consenting to a marriage for want of understanding;
Is incapable of entering into the married state from physical cause;
Consent to such marriage by reason of force, duress or fraud;
Has been incurably mentally ill for a period of 5+ years.
Void marriages never occur- voidable allows the state to declare them void.
AGE
States place restrictions on age at which people may marry. For example:
NY Dom. Rel. Law §15 requires consent where one party is under the age of majority to give
consent on his own behalf.
Age is a voidable (not void) restriction on marriage. Parental or judicial consent needed.
There is a rational basis for the restriction
Justifications for Age Restriction on fundamental right to marry:
o Not a complete ban on marriage – only temporary prohibition – asking
parties to postpone decision. Infringement is not so severe.
o Rights of children are not the same as adults:
Children = peculiarly vulnerable
Children are unable to make critical decision in an informed and
mature manner
Parents have a right to rear their children.
o Protecting minors from immature decision-making
o Preventing unstable marriages
o Paternalistic state power to protect and promote welfare of children who
lack capacity to act in their own best interests.
Reasons why Age Restriction on right to marry is unconstitutional:
o Arbitrary age requirement not based on actual preparedness for marriage.
Moe v. Dinkins (SDNY 1981)
Unmarried minor mother (P) v. The State (D)
Facts:
Maria Moe (P), 15 year old, and the father of illegitimate child wished to marry to cement
their familial relationship and to remove the stigma of illegitimacy from their child.
Maria’s mother refused to consent- Maria sued contending the law was unconstitutionally
depriving them of their equal protection
Holding: State regulation of marriage of minors is constitutional. There is a legitimate
justification and rational basis for the restriction. It is a delay, not a deprivation.
NY Dom. Rel. Law §15 requires parental consent to the marriage where one or both
parties are underage. Parental consent for men 16-18, women 14-18. Judicial consent for
women 14-16.
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Rappaport (P) claimed that her constitutional rights were violated by rules regarding
dress and the exchanging of rights that had been promulgated to cover weddings
conducted by the city clerk, Katz (D).
Holding: The federal courts should not get involved in supervising marriage forms and
procedures in city clerks’ offices, which are an area fundamentally of state concern.
Federal judges have too much to do to become involved in this type of dispute
PHYSICAL INCAPACITY
NY Dom. Rel. §7(3) – marriage is voidable if one spouse has incapacity to enter into married
state for physical cause.
It used to be that certain diseases were complete barrier to marriage – i.e. epilepsy.
DURESS
Marriage is a relationship into which 2 individuals enter upon freely and voluntarily. If it
was formed under duress – it is voidable.
Look at circumstances surrounding marriage + request for annulment
Look at duration of marriage
Lester v. Lester (NY 1949) –
Wife (P) v. Husband (D)
Facts:
Family law professor argues that his marriage should be annulled because it was entered
into under coercion/duress.
He felt that if he did not marry his wife, she would have killed herself. They were
married for 10 years.
Wife wants legal separation + support – not annulment or divorce.
Holding: Pre-nuptial agreement where husband asserts that he is not bound by the obligations of
marriage and that it is taking place against his wishes – this prenuptial violates public policy.
This marriage was NOT formed under duress – husband is trying to abandon wife and
avoid paying her support.
Antenuptuals which purport to violate the marriage are not enforceable.
FRAUD
If a spouse enters a marriage based on the fraudulent misrepresentations or omissions by one
spouse, the marriage is voidable.
Essentials or Essence of Marriage Test
Marriage is voidable if the fraud goes to the essence of the marital relation.
This is an objective conclusion
The fraud must be about a core characteristic related to marriage to justify an
annulment – not mere disappointment in result.
The marriage is SO based on a lie or fraud that it merits returning the parties to the
pre-marital state.
Johnston v. Johnston (CA 1993)
Facts:
Unhygienic, unattractive , sexually unappealing drunkard husband fraudulently
represented himself to be an attractive, polite, sober person during courting period.
Wife is requesting annulment of the marriage based on fraud.
Holding: Court denies annulment holding that the fraudulent statement must go to essential
aspects of the marriages and the hygiene and manners of spouses is not an essential marriage
issue.
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Objective-Materiality Test
If a reasonable person would find the complained-of characteristic enough that the spouse
would not have married if she had known, then there are grounds for an annulment.
o Both objective and subjective
Objectivity = whether a reasonable person would find that the spouse would be subjectively
bothered by the fraud.
Advantages: Would eliminate trivial claims, but allow material characteristics to remain. Allows
an escape route because many people present themselves differently when dating than when
married.
Disadvantages: There are some things that are not serious or core enough that they are grounds
for annulment. All reasonable people want to marry the best people possible.
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Your birth sex is your sex for life and there is nothing one can do to change it.
Chromosomes, gonads, genital, psychological
Advantage: Clear applicable line, Aligns marriage with procreative abilities.
Disadvantage: Excludes % of population with chromosomal abnormalities and who don’t have a
clear sex (XXY, XYY). It is also possible for chromosome makeup to be different than external
genitalia – which is confusing.
Problem: potential equal protection claims from transsexuals for infringement on fundamental
right to marry. 2 people cannot get married if their birth sex is the same OR if their presentation
sex is the same.
Psychological/Presentation/Self-identity/Functional Sex
Psychology determines gender – a person is the sex that he/she thinks she is and holds
him/herself out to be (functional).
Advantage: Encompasses 100% of population, recognizes identity of all people.
Disadvantage: Discourages procreation within marital context because people’s gender identities
are not connected to procreative capacities.
There is a different test for gender of parent for purposes of custody and child support
than the test for marriage! BIOC will prevail!
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There are different definitions of sex for different contexts/purposes. For example, sex
for purposes of driver’s license or birth certificate is different than definition of sex
required for marriage.
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marry someone of his own sex. Therefore, equal application would satisfy the scrutiny because
there is no evidence of sexist supremacy. For sexual orientation discrimination not a suspect
class, not required to have heightened scrutiny.
Even if it is subject to heightened scrutiny, there are compelling
state interests that justify the infringement.
• Protecting health + welfare of children
• Fostering procreation in marital setting
• Securing recognition of state marriages in other states
• Protecting public from burdensome costs
o States cannot afford extending costs and benefits of marriage to
everyone.
o Slippery Slope. If you allow same sex restriction to slide, so will all
other restrictions against polygamy, incest, etc.
Baker v. Nelson
Minnesota Law banning same sex marriage is not unconstitutional because there is a fundamental
difference in sex and states can make restrictions on right to marry.
Equal Protection argument – denying same sex marriage = discrimination on the basis of sexual
orientation or sex.
Question = strict scrutiny.
o Hernandez DISSENT would apply heightened scrutiny for equal protection
problems and fundamental right infringement.
Even if rational basis, it would still fail.
o Goodridge v. Dept. of Public Health (MA 2003) – Legalized same sex
marriage in Massachusetts. Prohibition on same sex marriage fails rational
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basis review. There is no conceivable reason for the prohibition other than pure
animus.
Even if there are rational reasons for the law, law is not carefully tailored to achieve those
interests.
State channeling function channels people into marriage with no regard for actual
procreative capacity. Sterile and infertile heterosexual people are allowed to marry, but
not homosexuals who have procreative capacity, just not with each other.
o Hernandez DISSENT: Even if there is a rational reason for the law, the law does
not promote that reason. It is not narrowly tailored to accomplish those interests.
Sex Orientation: Similarly situated straight people can get married to someone they love, whereas
gay people cannot.
Hernandez DISSENT (Kaye) – embraces sex and sexual orientation
discrimination arguments!
Sex: Man cannot marry a man, because he is a man. Reminiscent of Orr v. Orr (alimony right
extends to men). Men can do things women can’t do and vice versa. .
o Right to privacy. Government should not be involved with who you
should or should not marry. (Griswold v. Connecticut, Lawrence v.
Texas).
o Right to free association. Marriage is an association between 2 people.
People should be free to choose who you want to associate with and in
what way you will do so with someone of same sex.
o Right to free exercise of religion. Weak argument – but religious right to
marry who you love. Cite polygamy cases, but they come out the wrong
way.
o Public policy and common law definitions of marriage shift over time.
While historically, marriage was defined between 1 man and 1 woman,
this definition could change as social mores change. Also, an appeal to
common law definition does not answer question of whether it is
constitutionally permissible for marriage to be defined in this way.
Goodridge v. Dept. of Public Health (MA 2003) – Legalized
same sex marriage in Massachusetts. Court changes common
law definition of marriage to include same sex couples.
Common law definition of marriage conflicted with
Massachusetts Constitution. Also – allowing same sex couples
to marry fits with the channeling function – same sex marriage =
people in lasting relationships that provide emotional, sexual
support – the exact purpose of the channeling function in the first
place. Getting married for same reasons as straight couples!
o Morality cannot be the sole justification for preventing same sex
marriage. See Lawrence v. Texas.
o BIOC for parents to be married. That such marriage would stir social
biases that might affect child indirectly is not a valid argument to prevent
marriage (Palmore v. Sidoti).
o People of same sex can adopt and co-parent – in effect, can form
families. Gay parents are fit parents – no adverse effect on kids.
i. States have begun to pass marriage amendments to their constitution
in order to avoid answering the question of whether same sex
marriage violates the state constitution.
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______________________________________________________________________________
Dershowitz – “To Fix Gay Dilemma, Government Should Quit the Marriage Business” –
Civilian institutions/the State should provide civil unions for everyone and leave
“marriage” to religious institutions.
Decouple the civil and religious components of marriage – state should not decide who
gets holy sacraments.
Problem = will all the problems incident to marriage be transplanted to civil unions?
Zelinksy – “Government Should Get Out of the Marriage Game” –
Deregulate marriage entirely and make marriage a religious or cultural institution with no
legal consequence.
“Marriage” should be privatized and contractual in nature – which is the trend in modern
matrimonial law anyway (pre-nuptial agreements).
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Different groups and communities will develop their own contracts (with different
benefits/obligations) to which couples adhere when they marry – and then those will be
enforced as contracts. Each couple decides the essentials of their marriage.
PUTATIVE MARRIAGE
Definition: putative spouse = someone in good faith believes that he/she is married. The
marriage is given legal effect for the exclusive purpose of protecting the spouse who is not at-
fault for making the marriage invalid in-fact.
Distinguished from common law marriage because there is no mutual intent to be married.
COHABITANT RELATIONSHIP
Unmarried cohabitants may contract with each other in the same way that any other 2
people may. The main restriction on cohabitation agreements is that they are not binding
insofar as they concern sexual services b/c that amounts to prostitution – and contracts that
violate public policy will not be enforced.
Advantage: Cohabitating partners have greater freedom of contract than married partners.
This is because state is a 3rd party in any contract between spouses and the contract must
balance the interests of all 3 parties. E.g. cannot give up duty to support, to take care of
children.
Disadvantage = Cannot contract for all the benefits achieved by marriage (i.e. divorce
process, tax benefits, inheritance rights).
Marvin v. Marvin (CA 1976)SEE ABOVE under contracts – Legal relationships
(contractual, implied and express, and quasi-contract, quantum meruit remedies) arise
out of cohabitation arrangements even though the parties are not married. Opens the
door for cohabitation contracts. Established the idea of “pal-imony.” ∏-woman asserts oral
contract ∆-man told her that he doesn’t believe in marriage, but if she lived with him, gave
up her career, he would give her half of everything he earned. They split up and he didn’t
give her anything. Agreement between non-marital couple are valid – fail only to the
extent that they are ONLY sexual services. Here, it was not just about sex – she performed
domestic tasks as well. Remanded for determination of whether a contract existed.
COVENANT MARRIAGE
A covenant marriage is distinct from a regular marriage in that regular marriages may be
dissolved with no fault. Covenant marriage requires a complete and total breach of the
marital covenant and then the non-breaching party can move to derecognize the marriage.
Iron-clad marriage – lifetime commitment that is very hard to dissolve.
To get in: must have counseling
To get out: examples of total and complete breaches of marital covenant = adultery, serious
felony, abandonment, abuse, separation for 2 yrs
Louisiana Covenant Marriage Statute – La. Rev. Stat. 9:272
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The required elements are: (1) the defendant acted intentionally or recklessly; (2) the
conduct was extreme and outrageous; and (3) the actions caused the plaintiff to suffer
severe emotional distress.
Claims related to marriage, but apart from the marriage may be joined with the
divorce claim.
Twyman CONCUR/DISSENT – if you allow emotional distress claims to be joined with divorce
actions, you have essentially returned to fault-based divorce.
• Divorce is a benefit of marriage! It streamlines division process so parties do not have
to go to civil court, housing court, etc. to determine what belongs to whom.
• Divorce is different than annulment.
o Divorce = dissolution of marriage; separation of property.
o Annulment = as if the marriage never happened; no separation of property
• Divorce is also different from separation
o Separation = temporary period during which parties live apart to contemplate the
marriage. As a legal construct, it is meant to facilitate the parties’ reunification.
Actions that are committed during the separation period may be grounds for
divorce. As a social construct, separation is viewed as a precursor or
steppingstone to divorce, but this is not the legal definition of separation.
I. Old Divorce Law
• Divorce had to be granted by legislature in a separate legislative act.
• Divorce highlights the fact that marriage is a contract between 3 parties (the 2 spouses
and the state). The couple must go to court and ask the state’s permission to end the
marriage.
o State has an interest in preserving marriages – not divorce. They might make it
harder to get a divorce because it forces the parties to seriously evaluate their
relationship. Not every rough patch is a justification for divorce.
o State might also have an interest in the divorce if there are children, because state
is charged with responsibility of guarding welfare of its children.
II. Traditional View of Divorce
• Fault-based divorce = innocent party had to prove fault grounds – that (s)he had been
wronged by the other party in such a serious way that the marriage was undermined.
The wrongfully-acting party could then assert a defense. The court may then decide
to grant the divorce to the innocent party.
o Advantage of fault-based divorce: protects women and gives them a
bargaining chip if husband wants to leave (will not ask for a divorce unless
they receive certain compensation in the asset distribution process). Protects
less-moneyed spouses. Preserves family values, relationships that are bad
enough will get a divorce, huge source of business for the matrimonial bar.
o Disadvantage of fault-based divorce: people who really want a divorce
cannot get one – even if they are miserable and unhappy in their marriage. A
victim spouse could keep wrong-actor spouse in the relationship by refusing
to file for divorce.
• Fault is instrumental in determining the financial consequences of the
dissolution – the spouse at fault for the marriage break-up will be penalized in the
division of the assets and the custody of children (or rather the spouse not at fault will
be favored). Equitable distribution of assets has a lot to do with who is at fault.
• Hard to get a divorce under fault-based regime. Conceivably – even though both
parties want a divorce, they could not get it.
o Keep the parties out of marriage pool.
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• Neglect
B. Defenses to Fault Divorce
• Lack of innocence – if the requesting party has done something which would
constitute grounds for divorce or is somehow also at fault for the marital problems
no divorce. You need clean hands to get a divorce.
Rankin v. Rankin (PA 1956)
Husband (P) v. Wife (D)
Facts: Mrs. Rankin (D) contended the trial court erred in granting her husband a divorce because
of his contributory fault in the breakup of the marriage.
Holding: to obtain a divorce on the basis of indignities, it must appear from the evidence that the
plaintiff was the injured and innocent spouse.
Husband requests divorce from wife on grounds of cruelty and abandonment. NO
DIVORCE. Wife threatened to kill him, tried to run him over with car, lunged at him
w/butcher knife, threw hot water on him. However, wife alleges that husband abused
and was cruel to her as well. Wife’s story is corroborated, whereas husband’s is not.
Nasty household – unhappy marriage, but both parties are at fault for the marital
problems. Mere incompatibility is not grounds for divorce. Husband’s behavior is not
free from fault – he can’t request a divorce.
• Connivance – Plotting, either alone or together, to trap one’s spouse to commit
marital fault and then using that fault as grounds for divorce.
Sargent v. Sargent (NJ 1920)
Husband (P) v. Wife (D)
Facts: Sargent (P) sued for divorce contending his wife committed adultery with his chauffeur.
Holding: A spouse providing the other spouse with the opportunity and inducement to commit
adultery cannot obtain a divorce when such is committed.
Husband requesting divorce on grounds of adultery, but wife’s defense is that there was
connivance. NO DIVORCE! Husband contributed to wife’s adultery w/black servant: he knew
she was attracted to the chauffeur, he left her alone with him, and even after he believed adultery
occurred he continued to employ the servant. Husband cannot participate in course of action
leading to wife’s fault and then assert fault grounds for divorce.
• Collusion
• Condonation
Willan v. Willan (England, 1960)
Husband (P) v. Wife (D)
Facts: The trial court denied Mr. Willan’s (P) petition for divorce on the ground he had condoned
the cruelty he had charged.
Holding: Condonation of cruelty eliminates it as a viable ground for divorce.
Husband requests divorce on grounds of systematic physical and sexual cruelty, but
wife’s defense is that he condoned each act of cruelty by having sex with her afterwards.
NO DIVORCE. *However, cruelty was directly in response to husband’s refusal to
have sex with her – so he had sex with her so she would stop abusing him.* Court does
not believe husband was truly coerced – he could have left or overpowered her. Court
held that engaging in sexual relations after cruelty constitutes forgiveness and
condonation. Each act of cruelty was condoned by the forgiving sexual act afterwards.
• Recrimination – “Yes, I did the alleged activity, but I did it to protect myself or in
response to something the other spouse did.”
• Insanity
C. Evidence that Judge may use to make determination of fault:
• If there is an explanation for the alleged-fault spouse’s behavior
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highlights the problem with a hybrid system. If the idea behind no-fault divorce is to
correctly describe why the marriage is over, then enforcing a separation agreement that
says there is no fault, when there is in actuality fault, would be enforcing a lie. In a
hybrid jurisdiction, a spouse may give up his right to assert a fault-based ground for
divorce. A separation agreement may limit grounds for divorce.
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o Also one of the goals is to get the parties disentangled. So if there are
lurking issues it should be the policy to encourage them to mention the issues
in divorce proceedings.
Twyman CONCUR/DISSENT (Phillips) The court should recognize the tort of intentional
infliction of emotional distress, but should disallow it here because it courts handling divorce
already have discretion to divide community property taking into one party’s extreme conduct.
Dissent/Specter: More expansive than the majority. The wife should be allowed to pursue
negligent infliction of emotional distress which Texas does not allow. Specter would allow it in
interfamilial cases such as domestic violence and sexual harassment.
• New York is the only state that does NOT have no-fault divorce.
o NY Dom. Rel. §170
(1)-(4) = fault (cruelty, abandonment, imprisonment, adultery).
(5) + (6) = no-fault like
• (5) = live apart by judicial decree of separation for 1 year
o Judge may not grant decree unless fault is present
• (6) = live apart by agreement for 1 year
o One party may say other did not follow agreement and
prevent divorce.
o
IV. – “Division of Property, Alimony and Child Support
• Division of Property is a 2-step process:
1) Will the divorce be granted?
2) If so, how will the property be divided? (hearing or separation agreement)
• There are 3 issues to resolve about resources upon divorce:
1) Distribution of property
a. Classification of property – what property is in the marital pot?
b. Valuation of property – how much are the marital assets worth?
c. Principles of distribution – who gets what?
2) Spousal Support
3) Child Support
• Equitable is not the equivalent of equal.
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Holding: In a dissolution, all property is found to be marital unless traced to a non-marital source,
then assigned a value, and all marital property must be equally divided.
The trial court awarded the wife 2.5 million. The husband argued that the value of the
company before the marriage was more and that it decreased during the marriage.
Court finds that the husband was responsible for the estrangement of the wife and
adultery and later deserting his wife. The court also considered that the husband had
spent a lot of marital money on his own things during the separation. The court feels like
the husband was trying to reduce the marital property so to give less to his wife.
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Facts: When Mr. Siegel (D) alleged that his gambling losses should be equally distributed at
dissolution, Mrs. Siegel (P) alleged that they were really a dissipation of funds and were to be
borne solely by Mr. Siegel.
Holding: The contribution of each party to the acquisition or dissipation of the marital property is
to be considered in determining the equitable distribution.
Husband’s gambling debt (incurred during marriage, prior to divorce) is NOT part of the
marital estate. Court makes a judgment call based on facts of case – it appeared that
husband is trying to intentionally diminish the value of the estate – not a bona fide debt.
Gambling debt is owed to a company that husband owns 1/3 of, debt incurred 10 days
after the divorce complaint was filed, and husband forged wife’s signature on tax return.
If a spouse intentionally dissipates the value of the marital estate, that portion will
be taken from the bad acting spouse’s share. Court will look to whether the
expenditure was done in the normal course of familial expenditures or if it was done
intentionally to dissipate the marital estate.
◊ Market value and emotional value of the assets.
◊ Parties’ station in life
◊ If property was accumulated via inheritance or gift to only one spouse
◊ Tax consequences of the proposed distribution
◊ Whether lump sum is possible to reduce future payments and friction
◊ Needs of parties for financial security
◊ Conduct of parties in managing and combining assets during marriage
• How parties act towards and use their money influences how courts decide to
distribute and classify property.
◊ Ages and health of the parties
◊ Duration of marriage
Non-vested pensions and human capital present unique problems for equitable
division of the assets: Are these things “property?” Is it marital property – was it
developed or acquired during the marriage – did non-holding spouse make a
contribution to it? How much is it worth? How is it to be divided upon divorce?
◊ Human capital is marital property only in a minority of jurisdictions! However,
it is increasingly more popular since alimony is less frequent.
◊ Non-vested Pension
Theory #1: Spouse is entitled to proportional percentage of the pension to the
# of years that she was married to him while the pension vested.
o Present value offset – sum of $ to non-earning spouse in exchange
for earning-spouse keeping the whole pension later. Problematic! If
earning-spouse dies before pension vests, non-earning spouse has $
from pension, but earning-spouse doesn’t! Risk of forfeiture is
entirely on earning spouse.
o Pay in alimony
Theory #2: Spouse is entitled to ½ because it is an asset acquired during the
marriage
o Community property theory – spouse entitled to ½ of whatever is
acquired during the marriage.
Theory #3: Spouse is entitled to nothing
o Non-vested pension is a future asset, not a present asset. Spouse is
only entitled to funds if they are married when it vests.
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Reasoning: K said that even if H dies, right to receive commission passes to heirs/assigns, and
was assignable, not “mere expectancy.” Husband doesn’t really have to do anything to get
commission. Work done when he got the accounts, most automatically renew. Not too
contingent or uncertain to render commissions beyond valuation (insurance co. gives them $
value).
Not uniquely personal to the holder, justifiably relied upon by couple. Vested right not separable
from policies sold during marriage, so part of marital property.
Construe Act liberally.
Debt is encumbrance on future commissions which reduces future value, so trial court should
have subtracted $267K from the $410K
B. Alimony
*Spousal support is less common now. More common is the idea of lump sum compensation in
the distribution package.
• DEF: Alimony (a.k.a. spousal support, maintenance) = periodic, post-marital
payments from richer spouse to poorer spouse for financial support.
• DEF: Alimony pendent lite = one spouse has no money at all, cannot afford anything
– asks court for an order that more-moneyed spouse pay alimony while the trial is
pending.
• Pensions and human capital are not compensated in alimony payments. Alimony
terminates upon remarriage – so it is almost depriving the non-holder spouse.
• Reasons FOR spousal support:
◊ Derived from the idea that marital obligation/duty of support is for life (extends
beyond divorce – doesn’t end when marriage does). Wedding vows are forever.
◊ Poorer spouse has interest in maintaining lifestyle (s)he had when married
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◊ Missed opportunities – if one spouse sacrificed or there was mutual decision that
(s)he would forego an educational or career opportunity in order to take care of
the family/marriage, (s)he deserves to reap benefits of her sacrifice even though
they are not married anymore.
• Out of job market for a long time – lost client base, reputation, opportunity –
too hard to start anew later.
• Harder to go to school when older
◊ It is only fair for both spouses to get some sort of continued exposure to the
opportunity taken by one of the spouses – it is seen as a return on an investment.
◊ Alimony is a way to offset the fact that one of the spouses does not have the skill
set. One spouse walks away with skill set developed during the marriage, and all
that it is worth, and the other spouse walks away with nothing. Even though the
first spouse could not have achieved his skill set without second spouse’s
support.
• Reasons AGAINST spousal support:
◊ Keeps the spouses attached to each other after the divorce has been finalized and
undermines the goal of divorce (to disentangle the spouses financially and give
them a fresh start).
A spouse may even force ex-spouse to maintain his profession to have the
salary needed to pay alimony.
◊ Spousal support is problematic because of economies of scale (it costs more for 2
people to live apart than to live together).
Uniform Marriage and Divorce Act Section 308: Spousal support only if the poorer spouse is
unable to support itself through appropriate employment. Marital fault is irrelevant.
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Modification of spousal support: When there are continuing issues of spousal support: the family
court retains jurisdiction until the expiration of the support, one spouse dies, the children become
the age of majority, etc. Can go back to the trial court and seek modification.
• Courts are LESS willing to modify alimony awards than child support awards.
Uniform Marriage and Divorce Act Section 316:
Modification is pretty difficult to obtain
Standard: “Changed circumstances so substantial to make the terms of support
unconscionable”
Most jurisdictions have not adopted this strict approach but usually some sort of weaker
test of a change of circumstance
Graham v. Graham
Ex-Wife (P) v. Ex- Husband (D)
Facts: Mr. Graham’s salary increased dramatically at about the time their divorce decree was to
become final. Wife argues that he should pay more in child and spousal support. Husband argues
that there is no relevant change in circumstance.
Holding: An increase in the noncustodial parent’s ability to pay can, by itself, constitute a
material change in circumstances sufficient to justify an increase in support.
Much less strict approach: increase in ability to pay in and of itself constitutes change of
circumstance that potentially gives rise to modification.
Separation Agreements
• Separation agreement = agreements made by the parties in anticipation of divorce or
separation that specify how the parties will separate and what financial ramifications
will follow. These agreements will often be incorporated into the divorce decree,
making them binding, subject to modification by the court (especially with regard to
child custody and support issues), on the parties.
• There is strong public policy in favor of enforcing separation agreements
1. Incorporate by Reference: Courts can append separation agreements without claiming
that they reviewed it
Trial court can only change based on unforeseen change in circumstance
2. Merge: Court is stating that they have read the agreement, think that it is fair, and include
it as part of order as if the court came up with it themselves
Trial judge can modify it if circumstances change
◊ Massar v. Massar (NJ 1995) See Above– Wife filed for divorce on grounds of
extreme cruelty. Parties had an agreement that in exchange for husband moving
out of the house, the wife would not file for divorce on any grounds other than
no-fault. Agreement was enforced. Absent fraud, duress or
unconscionability, the State has a strong public policy in favor of enforcing
separation agreements. .
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◊ Represents true intentions of parties (don’t have to sell tangible, indivisible items
and split proceeds)
◊ Promotes judicial efficiency and speed
◊ BIOC because it reduces time, stress and animosity between parents if they can
agree.
◊ Cost savings on attorney fees
◊ Adherence – people are more likely to follow an agreement they reached than
one that is judicially imposed.
◊ Privacy is preserved – do not have to air dirty laundry in public courtroom
◊ Reduces uncertainty and increases control re: outcome of divorce due to
subjective judicial bias
• Even if a separation agreement provides for child support and custody
arrangements, courts have the authority to modify these provisions as the best
interests of the child require.
Duffy v. Duffy (2005)
Facts: The Duffys set out the terms of their marital dissolution agreement, including child support
obligations, in a letter, which Mrs. Dyfft’s attorney used to draft a Draft Separation Agreement.
Mr. Duffy signed the letter but not the agreement, but nevertheless abided by its terms for one
year. Mrs. Duffy then sought to enforce the agreement terms when Mr. Duff arbitrarily lowered
his child support payments.
Holding: Parties must abide by the terms of a negotiated and accepted settlement agreement
despite later second thought.
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Full Faith and Credit for Child Support Orders – 28 U.S.C. §1738(B) – Each state shall enforce child
support orders of other states. The child support order is valid if there was proper SMJ, PJ, and reasonable
notice and opportunity to be heard.
◊ Cannot run and hide in another state to avoid child support obligations.
• Can a child support order be modified?
◊ Family courts retain jurisdiction of child support orders. If there is a material
change in circumstance, one of the parties may move to modify child support
order.
◊ A court may modify a child support order due to changed circumstances even if
the parties have made a prior agreement about it.
◊ Clear examples of material changes in circumstance =
• Change in child’s needs
• Change in child’s health
• Change in schools
• Parent loses job – can’t pay OR gets promoted – can pay more
Graham v. Graham (DC 1991) – Increase in non-custodial parent’s salary justifies a
modification (increase) of the child support award. If you lost job, award would be reduced.
Children bear burden of decrease as well as benefit of increase.
◊ Clear examples of NOT material changes in circumstances
• Developed a heroin addiction
• All money to Nintendo
◊ A new child in a non-custodial parent’s life does might constitute a material
change in circumstance.
Ainsworth v. Ainsworth (VT 1990)
Facts: husband pays custodial wife $70/week for 2 kids. He gets remarried new wife, step-
child. He wants to pay less money for biological kids bc he has obligation to support new step-
child.
Holding: Expenses for a second family may enter into the determination of child support for the
preexisting family, even where the second family consists of a spouse and a stepchild.
The new expenses of wife and step-child are a consideration that may play a role in
trial court’s determination in new child support award for the biological children.
However it should be noted that the obligation to support a step-child is voluntary and
there is no formal duty to support a step-child.
Little v. Little (1999)
Facts: Father resigned from full-time employment to become a full-time college student. He then
sought a reduction in his child support obligation, claiming his student status constituted a
sufficient change in circumstances to justify the modification.
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Holding: A court should not apply a good faith standard in determining a downward modification
in a child support obligation based upon an obligor’s voluntary decision to leave full time
employment.
Three approaches to imputed income:
1) Good Faith Rule
a. If you leave your job in good faith effort to improve your career long term, then
support will be reduced
2) Strict Rule: will really scrutinize: Rare circumstance that support will be reduced because
the court knows that you could be making a larger sum of money
3) Middle of the Road test: Provides the court with the most discretion: Allows the court to
really examine the party’s reason for leaving their job.
*In this case, the court adopts the middle of the road test. The court says that father thought he
could make more money in the long run as a lawyer than he could make in the air force.
***Imputed Income Theory: Whenever there is a change of circumstance, that is an important
tool
Child Custody
• Custody = legal responsibility for the child
• Physical custody = who has the child under his or her care
• History
• Common law preference for giving custody to fathers.
• Tender years doctrine –preference for mothers getting custody for children of
tender years. Strong custody preference for mothers over fathers.
◊ This is a bright line rule – maybe better for nasty custody battles to have
a default rule to apply, especially if both parents are fit – it is a tiebreaker!
• Movement now towards eliminating gender asymmetry..
◊ In practice, women are still more likely to get custody than men, but
courts are not citing tender years doctrine. Maybe result of internalized gender
norms OR social realities.
• Original custody determinations are made in the Best Interest Of the Child. Courts
will look to a variety of factors – and make a decision based on totality of the
circumstances. No one reason is controlling, but they are all factors.
• Child’s relationship to parent
• Health and welfare of child
◊ Emotional, social, moral, educational needs
• Home environments
• Parent’s care-taking ability (age, character, stability, mental/physical health)
• Past evidence of abuse
• Stability
• Continuity
• Sex + age of the children
• Child’s preference – IF based on mature, intelligent, rational reasons
Bender v. Bender (1982)
Facts: Dad had custody of kid (Heather)-Mother paying child support for Heather $25 a week.
Mother gets pregnant with another kid-Nicole and father was not Nicole’s bio dad. Mom
successfully suspended her support obligation for Heather so that she could reamin home with
Nicole.
Holding: A parent’s decision to remain at home with a young child, the nurturing parent doctrine,
is not an automatic exception to the support obligation.
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Imputed Income Theory: when determining each parent’s responsibility to provide support for
children, we should look not at actual income but at potential income
This is the Father’s Argument: It is clear that mother has potential to earn income and
provide some child support
Mother’s Argument: In-Kind Contribution: There is the notion that parents who stay
home to care for kids get a pass (essentially they are providing child care costs)
They are immune from imputed income because they are providing services for the
children that are serious contributions
Problem here: she is providing NO care to Heather (Bender
Junior)- She is only providing care to the second child
The court in the Bender Case appears to be stereotyped about womens roles: there is a sexist
presumption that dad could be providing for kid and its fine for mom to stay home
Tender Years Doctrine: Presumption in favor of mother to get custody of young kids
o Default was that mother would get kids
o Has been ruled unconstitutional
o Trial judges are deeply influenced by this stereotype
o Stein thinks that this is the core of the Bender case: the court thinks that it is
best for the mother to stay home with second kid- and mothers income was
so little anyway- father can easily provide
Miller v. Miller (1984)
Mother (P) v. Stepfather (D)
Facts: Mom (P) had two minor children from a previous marriage when she married Miller (D).
After they divorced, she sought child support from Miller the stepdad (D).
Holding: A divorced stepparent may be liable for child support to former stepchildren based on
equitable estoppel.
Stepparent’s support obligation is voluntary and arises from the stepparent’s standing
in loco parentis. Equitable estoppel claims require that intentional actions occur
resulting in anticipated reliance to the relying party’s detriment.
Pendent elite support awards are appropriate where the moving parent demonstrates
no financial assistance from the other biological parent and stepparent’s active
interference in the relatship between the child and the other biological parent.
Johnson v. Louis (2002)
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Custody of the couple’s minor son was awarded to the father after
allegations of the mother’s homosexual lifestyle arose and became a focal point
of the custody determination. The mother argued that the custody determination
was contrary to the evidence submitted.
Holding: A custody ruling should consider factors related o the “best interest” of the
child, and a finding should be made on each factor.
Appellate Court tells trial court here are the factors you have to go through the factors
and say who you think should get the kid. Appellate court tells trial court the process
that they should follow. Criticized trial court for focusing too much on homosexuality.
FACTORS: (1) Age, health and sex of the child (2) Primary caretaker before separation. (3)
Parent with the best parenting skills and willingness to be the primary caretaker (4) Parents
employment (5) Parents health and age (6) Relationship between parent and child (7) Parents
Moral fitness (8( Home, school and community record of the child (9) childs preference if age
appropriate (10) Parents stability of home and employment (10) other relevant factors
Carney and Holon: Appellate court: in both cases: TRIAL COURT SHOULD NOT HAVE
FOCUSED ON ONE CHARACTERISTIC AND SHOULD HAVE FOCUSED ON THE BEST
INTEREST OF THE CHILD
• Trial court should have focused on the effect that characteristic had on child
While custody determinations are made in the BIOC, it is important not to infringe upon the
rights of the parents.
• When faced between BIOC and parent’s civil rights – the civil rights will win so
long as the parent is fit.
• Constitution prohibits courts from using race as a factor in BIOC analysis.
BUT practice indicates that while race alone cannot be a factor, insofar as race
may have an effect on the BIOC, race is relevant.
◊ Race used to be allowed as a factor in the custody determination: it used
to be that if parents were different races, child was placed with the parent that
it looked most similar to
RACE:
Old practice: the trial court would follow the rule: does the child look more like the race of the
mother or the father?
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Virtues of the Default Presumption Approach: Easy, Efficient, Predictable, Channeling, Prevents
judicial bias, evens the playing field, encourages private decision making, finality, less intrusive,
prevents parents from using the child as a bargaining chip
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Pusey v. Pusey
Facts: The older minor child expressed a preference to live with his father. The court considered
all factors and awarded custody of the older son to the father and the younger son to the mother.
Mother appealed the custody order of the older child.
Holding: Custody order should no longer be based on an arbitrary maternal preference. The
Tender Years Doctrine has been found to be unconstitutional and it promotes outdated
stereotypes. All other things being equal, the father and mother would have equal custody rights
to a minor child
Garska v. McCoy
Facts: McCoy had a baby out of wedlock and lived with and supported the baby without any help
from the father for the first year. Then the child got a respiratory problem and the grandparents
petitioned the courts to adopt the child so that their medical insurance would cover him. The
father then began to send small amounts of child support and filed to gain custody of the child. At
all times the mother lived with and cared for the child. The trial court awarded the father custody
finding him to be more economically stable and having a better demeanor. The mother appealed.
Should a court disregard the sex of the parents and award custody to the primary caretaker?
Holding: A child’s best interest is served by disregarding the sex of the parents for custody
awards. In this case the mother was shown to be a fit parent and therefore she should have
received custody as the primary caretaker.
Joint Custody
Squires v. Squires
Facts: The court awarded joint custody to the parents of a minor child but the mother did not
believe that cooperation was possible due to the hostility during the divorce proceedings.
Is parental cooperation a precedent to a joint custody order I such an order is in the child’s best
interest?
Holding: No – parental cooperation is not a precedent to a joint custody order.
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Dissent – joint custody requires exceptionally mature adults capable of setting aside the
emotional hostility for their child’s benefit. A determination of whether the parents are
emotionally mature and capable should be made before making a joint custody award.
Joint Custody
- Takes two to decide
- Animosity becomes a big problem
Hassenstab v. Hassenstab
Facts: The father requested that the court modify a prior custody determination (that awarded
custody to the mother) awarding him custody of his daughter – the mother was a homosexual and
the father argues that she was unfit to retain custody. The district court dismissed his application
and ordered an increase in child support.
The father tries to paint a picture of the mother’s instability – not necessarily the sexuality but her
depression and drinking. But that was years ago, so does this really affect the child?
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Holding:
Holding: The party seeking modification of child custody bears the burden of showing that a
material change in circumstance has occurred.
homosexuality of the mother does not qualify.
Wetch v. Wetch
Facts: The mother and father stipulated that the mother would have sole custody rights and the
father would have liberal visitation rights. The mother later sought to move to another state and
the father objected seeking a change in custody. The mother may or may not have tried to commit
suicide long ago.
The court wouldn’t consider any conduct of the parents prior to the divorce. The court awarded
the father physical custody of the two kids – the wife appealed.
The court will weigh more heavily on the current evidence, but will admit past evidence if it is
important.
Holding: A trial court must consider pre-divorce conduct on a change of custody motion if the
original custody order was by stipulation of the parties.
Relocation
Baures v. Lewis
Mother (P) v. Father (D)
Facts: The wife filed for divorce which included a request to move their minor child from their
home in NJ to WI – the husband opposed the request.
Holding: In a removal action, the custodial parent must establish the prima facie case with a good
faith reason for the move and demonstrating that the move will be in the child’s best interest.
*Its much easier to communicate these days – email, video chat, etc. i
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Mediation/ADR in divorce:
Advantages:
Less adversarial
o Do not want child to have to chose between parents
o Want to encourage a collaborative relationship
o Empowering/ encourages parents to be active agents
Less Costly
More likely to follow
Disadvantages:
Trial is more serious
Harm weaker party
Lack of focus
Discovery
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Visitation
• Visitation = spending time with the child (non-custodial parent can still visit).
• Restricted visitation = visitation with some restriction on it (i.e. cannot go to Church
w/child, cannot talk to child about X subject).
• Supervised visitation = specific restriction – non-custodial parent can only see the
child when he is in the presence of someone else who will supervise the activity (i.e.
police officer, social worker, family member). Restriction can be very severe (i.e.
only at child’s home at a particular time w/custodial parent present).
• DEFAULT VISITATION RULE: It is in the BIOC to maintain a continuing
relationship with the non-custodial parent or other important figure in child’s life (i.e.
de facto parent, grandparent, relative).
• Uniform Marriage and Divorce Act
Eldridge v. Eldridge (2001)
Facts:
Julia and Anthony Eldridge divorced and agreed to share custody of their two minor
daughters. Julia entered into a cohabitating homosexual relationship with Lisa Franklin.
Anthony was awarded sole custody with visitation rights granted to Julia.
Anthony then objected to his older daughter’s overnight visits with her mother if Lisa
was present and sought to have Lisa’s presence restricted durint the visits.
Holding: A trial court may properly restrict noncustodial parental visitation rights in the presence
of a nonspouse if the restrictions are in the child’s best interests and the appellate court should
affirm the trial court absent a finding of error.
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Facts: The Troxels are the grandparents of 2 girls of their son – by a woman who he never
married. The son died and the grandparent wanted the right to visit their grandchildren more often
than permitted by the children’s mother. The trial court granted visitation to the grandparents. It
is important for the children to have a continued relationship with the grandparents.
Broad Visitation Statute: any person could petition for visitation at any time -Paternal
grandparents petitioned for visitation
Mothers best argument: I should get to decide what is in the best interest of the child:
courts should give great deference to that
Holding: O’Connor: custodial parent has a constitutionally protected liberty interest in the
custody/control of the children
Visitation abrogates those rights by giving trial court unblank restrictions to blank
SC invalidates broad Washington statute that permits any person, at any time, to petition
the court for visitation rights and that the court can grant it based on BIOC. Custodial
parents have a fundamental right (liberty interest) to make decisions about their
children’s care. Court-ordered visitation infringes on that right – sometimes justified
(medical attention, education), but in general, court should not place limitations on a fit
parent’s decisions re: the care of her children.
Dissent 1 – The court has never held that a parent’s liberty interest is so inflexible as to establish
a shield protecting every parental decision from challenge absent a showing of harm.
Dissent 2 – Legislators are the proper parties to argue that the state may not interfere with
parental authority over their children’s upbringing – not the courts.
Dissent 3- The state Supreme Court erred in implying that courts cannot apply the best interest
standard in third-party visitation cases and must apply a harm to the child standard.
*Family law is an area ripe for judicial bias b/c of discretionary nature of TC judgments.
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Quinn v. Mouw-Quinn
Stepfather (P) v. Mother (D)
Facts: The court awarded visitation with the three minor children to the father. The daughter
however was not his biological child. The daughter had never known another father and was not
aware of the circumstances of her birth. Her mother argued against the father’s visitation with the
daughter.
Holding: Courts may grant stepparent visitation when such visitation is in the child’s best
interests and under extraordinary circumstances.
Dissent - A non-parent seeking custody must definitively demonstrate the unfitness of the
biological parent before proceeding. When the biological parent disputes visitation of a non-
parent with the child the same showing should be made. There was no claim of the wife’s
unfitness.
Unmarried Persons
Stanley v. Illinois
Unwed Father (P) v. The State (D)
Facts: Peter lived with Joan intermittently for 18 years but they were never married so when she
died the statute declared that their three illegitimate would be wards of the state.
Holding: All parents are constitutionally entitled to a hearing on their fitness before their children
are removed from their custody, and denying such a hearing to a particular classification of
parents is violative of the Equal protection Clause.
The procedure of taking the kids out of the household failed to examine the fitness,
needlessly risking “running roughshod” over the important interests of child and parent.
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Lehr v. Robertson
Unwed father (P) v. Husband (D)
Facts: Lehr knocked up Robertson and she married someone else – he never supported the child
and rarely saw her. He didn’t put his name with the NY State putative father registry which
would have entitled him to notice of any adoption proceeding concerning the child. Robertson’s
new husband adopted the child. Lehr challenged the order claiming that he was not notified of the
adoption even though the court knew about his paternity action.
Holding: Due Process does not require that notice be given in all cases to a biological father of
the pendency of an adoption proceeding concerning the child.
Dissent – Any parental relationship whether biological or emotional is constitutionally recognized
and protected – the adoption order deprived Lehr of a constitutionally protected interest – he
should be notified and be heard before the order is granted finality.
VC v. MJB (2000)
Psychological Mother (P) v. Biological Mother (D)
Facts: VC and MJB were lesbian lovers. MJB was artificially inseminated and had twins. VC
acted as the psychological parent of the twins and sought joint legal custody and visitation when
she and her lesbian lover ended their relationship.
Holding: When the legal parent willingly encourages any third party not related by blood or
adoption to develop a psychological parent relationship with the child, visitation will be awarded
to that psychological parent, unless visitation is shown to cause physical or emotional harm to the
child.
Four part test for a parent-like relationship
1. Must be an equal co-parent
2. Must live in the same household
3. Biological Parent fosters the other parent’s establishment of parent like relationship
4. Psychological parent must live in the same household, assume the obligation of
parenthood, and must have been a significant bonding period between the parent and
child.
If this is established then the third party stands in parity with the legal parent.
Titchenal v. Dexter
Dexter adopted a child during her same sex relationship with Titchenal. Dexter and Titchenal
intended to raise the child together but Titchenal never adopted her. The relationship ended and
Titchenal sought visitation rights.
This is a situation of a psychological parent.
Could have adopted the child but did not.
A court may not consider a claim for visitation pursuant to its parens patriae equitable powers
absent statutory authority.
JURISDICTIONAL ISSUES
• Family law is primarily state law – NOT federal. Federal courts refrain from using diversity
jurisdiction to adjudicate issues of divorce, separation and custody = domestic relations
exception.
• Various states may have an interest in the familial relationship by virtue of marital res
theory. The idea is that “the marriage” is a piece of property that can be located where the
parties got married, but conceptually travels with the people in the marriage to wherever they
go. More than 1 state involved.
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• Full Faith and Credit Clause of the Constitution (Article IV, Section 1): “Full faith and
credit shall be given in each state to the public acts, records, and judicial proceedings of
every other state. And the congress may by general laws prescribe the manner in which such
acts, records and proceedings shall be proved, and the effect thereof.”
o Requirement of interstate recognition of sister state judgments.
o FFC based on common law principle of comity: if there is a fair and full trial in front
of a court of competent jurisdiction, that decision is valid, so long as it does not
violate public policy.
Avoids duplication of judicial resources
Provides finality to successful litigants
Creates stability and uniformity among national and international forums.
o Example: McMillen v. McMillen – Wyoming court issued divorce and awarded
custody to mother. Pennsylvania court must recognize this determination without re-
adjudicating the issues, but may then modify it as if it had been determined in its own
state.
o Public Policy Exception to FFC: States have an obligation to recognize marriages
and divorces made in other states unless doing so would violate public policy.
There are real issues when a discrete decision must be made where the result
might be different depending on which jurisdiction the action is brought.
• A court must recognize judgments made in other states only if the court had competent jurisdiction.
Many states have residency requirements in order for there to be jurisdiction to bring a divorce
action in their state courts.
o Some states make it easier to get a divorce in their state than others (divorce mill).
Generates tourism, court fees, attorney fees, and population increases.
o Some states prefer to keep it hard to obtain a divorce. Avoids anti-family reputation
and fraud, reserves court system for true state citizens.
o Consequently, people seeking divorce may find one jurisdiction more favorable
because it will take less time or it is easier to obtain one (in the case of fault vs. no-
fault).
Durational residency requirements are a permissible restriction on divorce jurisdiction.
International decrees ought to be recognized by the states in the same way that other states’
decrees are recognized. This is because of the principle of comity.
Martinez v. County of Monroe, 850 N.Y.S.2d 740 (NY App. Div. 2008)
Married Partner in Canada
This is about marriage in NY. Martinez actually married her partner in Canada – a question of
comity.
NY has a broad notion of comity – it will recognize valid marriages from other jurisdictions
unless it violates public policy or natural law – this does not do that.
NY is the minority approach – recognizing a same sex marriage from another jurisdiction.
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Present jurisdictions have the ability to modify court orders from sister states.
Vanderbilt v. Vanderbilt (US 1957)
Facts: Marriage CA, separated, wife moved to NY. Husband filed for divorce in NV – default
divorce decree (but wife had notice). Wife then sues for alimony in NY (PJ over husband b/c
property).
Holding: A state is obligated to five full faith and credit to a sister state judgment only where the
sister state judgment was entered pursuant to that state’s exercise of vbalid personal jurisdiction
over both parties.
While FFC requires NY to recognize NV divorce decree, NY has the power to
modify its terms. The parties are divorced, but the part of the NV decree that
extinguishes the wife’s right to alimony violates NY public policy and cannot be
enforced. NY court accepts decree in total, but modifies it.
o However, recent federal uniform laws were passed to eliminate the problems of
interstate recognition and enforcement of alimony and child support (Uniform
Interstate Family Support Act – which conditions receipt of federal funds on adopting
laws which recognize child support orders across state lines).
o There is also more uniformity in state divorce laws now than before.
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recognition; DOMA governs. Wife raised her right to raise right to privacy argument by
agreeing to terms of the consent order.
Wife didn’t, but could have, made argument that relationship w/partner is in
BIOC.
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Under the Uniform Interstate Family Support Act once one court enters a support order,
no other court may modify that order for so long as the party for whose benefit the order
is entered continues to reside in the jurisdiction of that court.
Because Brenckle’s failure to make child support payments became vested as judgments by
operation of law, the defense of laches is not available to him.
Loser in Chaddick and Thompson did not follow the rules correctly- when we create
good procedures for dealing with interstate conflict- downside is that if don’t follow the
rules precisely- potentially could get the
both used PKPA to get what they want- not because it was in the best interest of
the child
o Downside: removes the best interest of the child
Civil union status does not directly impact issues of custody and visitation. DOMA and
marriage laws do NOT affect issues of inter-jurisdictional recognition of custody.
Miller-Jenkins v. Miller-Jenkins (VT 2006)
Facts:
2 women (VA residents) go to VT to get civil union. Have child in VA – then move back
to VT. Relationship breaks up.
Bio-mom moves back to VA with kid. Bio-mom files petition for dissolution of civil
union (and child custody) in VT, admitting that non-bio-mom is civil union partner and
child is civil union offspring (presumption of legitimacy even though biologically
impossible).
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Family Law Outline
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