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FAMILY LAW OUTLINE Main Issues in Family Law Property Division Spousal Support & Child Support Child

Custody Marital Property Systems at Divorce 1) Common Law title based title determines ownership. Presumption is that property is separate unless expressly agree otherwise. 2) Community Property undivided interest of assets acquired during marriage. Presumption is that property is shared unless agreed otherwise. Separate property (acquired before marriage) goes to title holder 3) Pure equitable distribution judge divides as just and proper in all circumstances. ORS 107.105(1)(f) divides everything 4) Equitable distribution of marital property only (inherited property during marriage tends to be separate property. Murdoch theories in recovery in CL state include express trust, resulting, implied, or constructive trust (under unjust enrichment theory) Show common intention that beneficial interest not only belong to one spouse despite the title being only in one spouse's name. Majority opinion: rancher wife didn't do anything out of the ordinary to show common intention Minority: should be constructive trust when extraordinary labor invested CL can't use titleholder assets to pay off other spouse's debts. Tenancy by the Entirety property can't be used to satisfy individual debt. Boggs ERISA (fed law) preempts state community property laws. Ex-wife can't transfer her 'interest' in husband's pension to kids b/c of ERISA and husband's new wife was the beneficiary. Policy of ERISA is to provide for surviving spouse, not predeceased spouses. Waivers of pension plan benefits by state law aren't preempted by ERISA b/c they're no conflicting policies. Management and Control of Marital Wealth Marital privacy limits legal intervention into marriages. McGuire (1953) duty of husband to provide family w/ support & wife has right to use his credit for necessaries. Living standards are a household matter that courts won't get into b/c parties aren't separated. Can't ask for support if still living together.

FAMILY LAW OUTLINE Doctrine of Necessaries (CL) When wife buys a necessary, creditor can maintain an action against her husband b/c they're considered one marital entity. Spousal Contracts During Marriage Borelli wife promises to care for husband instead of putting him in a nursing home in exchange for properties. Husband reneges on promise. Court says couple has mutual obligations of support. K is against public policy & there was no consideration b/c pre-existing duty to care for ill spouse. Dissent: why does wife have duty to provide the care personally? Policy: such Ks are unenforceable b/c unfair bargaining positions. Pacelli reconciliation K. Wife agrees to accept only $500,000 in the event of a divorce in order to save ailing marriage and stay together. In some circumstances, such a K is okay if it's fair & equitable. Marital rift has to be substantial at the time it was made. This crisis was artificial so no valid K. Most states have eliminated spousal tort immunity (for intentional if not negligent torts). Tort damages from a lawsuit filed during marriage but not paid out until after divorce are either marital property automatically or the courts will inquire into the purposes of the damages to determine who should get what share. Oregon Family Abuse Prevention Act (ORS 107.700) 107.718 (1) By preponderance of the evidence, the petitioner has to show she has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner's child. (10)(a) Within 30 days after a restraining order is served under this section, the respondent therein may request a court hearing upon any relief granted. 107.720 Police have to respond to order violations 107.722 Upon divorce, there's a clean slate for judges ton consider except if necessary to protect the safety and welfare of the child or the petitioner. Cruzan - Competent person has constitutionally protected liberty interest in refusing unwanted medical treatment (this can extend to unwanted nutrition and hydration). Court has never actually held this but strongly implied this several times. Default: assume person wants to stay alive unless express contrary wishes. Look at competency and expressions of intent.

FAMILY LAW OUTLINE State has an unqualified interest in regulating to preserve human life to ensure that the choice is informed and voluntary. Involves decisional autonomy and bodily integrity. Protect vulnerable groups, integrity of medical profession, not want slippery slope. Right to be free from pain makes unwanted medical treatment akin to battery (bodily invasion) Court never quite says this interest is fundamental so state doesnt need a compelling interest to regulate. It has never defined how broad is life.

Entering Ceremonial Marriage (ORS 106) 1) licensing requirements 2) consensual intent to marry Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable (ORS 106.010) ORS 106.120 Void marriage The following marriages are prohibited; and, if solemnized within this state, are absolutely void: (1) When either party thereto had a wife or husband living at the time of such marriage. (2) When the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void. ORS 106.130 Voidable marriage When either party to a marriage is incapable of making such contract or consenting thereto for want of legal age or sufficient understanding, or when the consent of either party is obtained by force or fraud, such marriage shall be void from the time it is so declared by judgment of a court having jurisdiction thereof. Lutwak War Brides Act case. Marriages of convenience to get into US aren't valid. Must have intent to establish life together & assume certain duties/obligations. This is at the federal level in immigration matters. On the state level, most don't inquire into reasons for marriage. Fraud & Duress Annulment Misrepresentation of fact, know it was false, intent to induce reliance, material, reasonably relied upon, goes to "essentials of marriage" Marriage is civil K. Need sufficient capacity to understand nature of K & the obligations and responsibilities it creates. Zablocki (US) Wisconsin had a statute saying one can't get married w/o court order if they have outstanding child support obligations. Court says can't substantively burden the fundamental right to marry. State has other means of getting child support. Strict scrutiny EP analysis.

FAMILY LAW OUTLINE Reasonable restrictions that dont significantly interfere with decision to get married are legitimate (age, blood, affinity, monogamy, licensing) Same Sex Marriage Goodridge (MA) irrational under EP to deny same sex marriages (heightened RB) DP clause statutes have to bear real & substantial relation to health, safety, morals EP clause impartial lawmakers have to believe classification serves some legitimate governmental purpose that's greater than the harm to disadvantaged group members. State's reasons: 1) marriage for procreation 2) optimal setting for child rearing is heterosexual marriage 3) preserve scarce state resources 4) trivializes marriage 5) could cause interstate conflict Majority looked at this case from viewpoint of couple rights. Minority looked at it from individual right perspective & said that gay people have the right to marry opposite sex. Civil unions at alts to marriage Resolving Conflicts of Law General rule is that marriages are valid where celebrated except in cases that violate positive or natural law (offensive to public sense of morality regard with abhorrence). Full Faith & Credit Clause Not have to recognize marriages of other states under this clause, just judgments DOMA exceptions (state & federal) constitutional? Comity recognizing acts of sister states Conflicts btw FF&C clauses, DOMA, positive laws, policies Alternatives to Ceremonial Marriage Common law marriage not many states have anymore & probs w/ conflicts rules Holding out requirement open declaration to public by both parties of married state and present intent to be husband and wife and cohabitation. Can rely on circumstantial evidence (conduct makes reasonable 'wife' believe it). Have to legally divorce like in regular marriage. Presumption of Marital Validity and Putative Spouse Doctrine Most recent marriage is the valid one (rebuttable presumption) Marriage validly entered into continues (rebut by showing no divorce was ever filed for prior marriage in state where domiciled during marriage)

FAMILY LAW OUTLINE If 'wife' accepts benefits of terminated marriage, the she loses presumption protection. Even if second wife can't qualify as insured's 'widow' she may still get proceeds under putative spouse doctrine (legally invalid marriage but): 1) marriage ceremony 2) good faith, reasonable belief by new spouse in validity of marriage OR & CL states not recognize putative spouse doctrine. Non-marital Partnerships Oral agreements usually though some jurisdictions want writing recognized as K, express or implied. Valid unless sex was used as consideration Right to support comes from K & not nature of relationship. "Acts & conduct in light of subject matter and circumstances." Equitable remedies: constructive/resulting trust, in quantum meruit Consideration is commitment to each other. Connell (WA) status route other than by K. Meretricious relationships are stable, marital-like relationships where both parties co-inhabit with knowledge that a lawful marriage doesn't exist. Factors: continuous cohabitation, duration of relationship, purpose, pooling of resources, intent of parties, etc. Just & equitable division of assets acquired during relationship only no support In WA, if married, courts also have jurisdiction over separate property. Statutory Alternatives to Marriage Civil unions (VT, NJ), domestic partnerships (CA, WA, OR), reciprocal beneficiaries (HW) CA for same sex & any couple over 62; same rights/obligations as marriage; divorce the same NJ same sex; same rights (same in VT) OR Family Fairness Act; register for status, no ceremony, same rights/responsibilities HW (limited rights- WA is similar) not treat like marriage, couple rights via 3rd parties regarding health, right to inherit, wrongful death rights

Annulments Marriages void from get-go and not existing at law b/c fraud, lack of consent, bigamy, etc. Divorce Historically Fault grounds such as: impotence, adultery, extreme cruelty & inhuman treatment, conviction of specific crimes, desertions, other stuff like alcohol abuse and disappearances Hard to get divorce otherwise cottage industry Marital desertion persistent refusal to have sex where there's no health or physical reason why you can't.

FAMILY LAW OUTLINE Simpson to use insanity for affirmative defense against (?) divorce, must show McNaughten type insanity. Covenant Marriage Termination in Louisiana and few other states (fault-based) Many states have fault & no-fault divorce. Use former to get upper hand in property divisions. 1) adultery 2) felony committed 3) home abandoned 4) abuse 5) live apart for 2 years 6) live apart for 1 yr or 1 yr 6 mos if there are kids and after court issues separation from "bed and board" Modern No-Fault Divorce (ORS 107.025) Irreconcilable differences (marriage irretrievably broken down) is determined by subjective intent of parties that there is no reasonable possibility of a change of heart clear from the passage of time and circumstances. Courts wont conduct a deep inquiry just into court and testify. Summary Dissolution Procedure (ORS 107.485) not even have to show up in court if: -no kids, marriage of less than 10 years, no real property, no support requested, no debts in excess of $15,000, value of personal property is not greater than $30,000. Boddie state's imposition of divorce fee violates due process. Marriage of Pierson ORS 107.105(1)(f) Rebuttable presumption that both spouses contributed equally to acquisition of property during marriage whether separately or jointly held. Courts shall consider contribution of spouse as homemaker as contribution to acquisition of marital assets. This isn't CP b/c this is at divorce and not during marriage Need may or may not be a factor (less so in equal division) Some states will consider fault if there are unusual circumstances that shock the conscience. If acquired before marriage, just divide as just and proper. If acquired during marriage, you have the rebuttable presumption of equal contribution, which usually means equal division. If you can rebut that then its equitable division (just and proper) rather than equal division. Characterizing Property as Separate or Marital Most of the litigation is over characterizing the property as separate or marital. 1) identify what is separate and what is marital property 2) calculate net worth of marital property 3) distribute marital property in equitable manner

FAMILY LAW OUTLINE

Transmutation doctrine affirmatively augment non-marital property by commingling w/ marital property rebuttable presumption that all property transmuted into marital property. In some states changing the title of the property changes it character. Commingling intent to keep asset as separate property. Can be shown by title, control, reliance. Tracing out of separate funds to see extent of commingling to rebut presumption of marital property. (D has burden of tracing out) Active Appreciation of Investment Accounts Financial contribution of spouse during marriage to the separate property (work effort, substantial services make marital asset) Passive Appreciation of Investment Accounts Enhancement of separate property is due entirely to market forces. CA courts can't consider separate property. Most CP states follow "inception of title" rule when dealing with separate property. Character of asset determined by when it's acquired. CL states use "source of funds" rule. The increase in value caused by passive forces is allocated proportionately according to contribution of separate and marital funds. Kunze Analysis 1) when parties acquired property at issue (separate or marital) a. if before marriage, divide as just and proper 2) if marital asset, rebuttable presumption of equal contribution usually equal division 3) To rebut, party show by preponderance that other spouse not contrib. equally a. Consider econ & nonecon factors (e.g. homemaker presumption) 4) if rebutted just & proper in all circum. (equitable division rather than equal) a. so husband would not get his share b/c of the presumption but b/c it was just and proper for him to do so. Commingling intent to keep asset as separate property (or else it's joint). Can be shown by title, control, reliance. How spouse treats property and what it demonstrates OR doesn't consider enhanced earning capacity as property like most jurisdictions. Factor into spousal support instead

Spousal Support Only paid out if possible to do so. Ask class what are some reasons alimony is paid. ORS 107.105(1)(d) Purposes of alimony

FAMILY LAW OUTLINE Transitional to retrain spouse to enter job market Compensatory repay spouse for marital contribution Maintenance provide for support at standard of living established in marriage not overly disproportionate. ORS 107.407 set order aside if after 10 years no reasonable effort to find work Division of New Property Pension (accrues during marriage) Divide up based on time or accruing Time multiply pension value by number of yrs pension accrued during marriage/total number of years pension accured Accrual present value of accrued benefits on date of marriage minus present value on date of divorce. Differnce is value of benefits earned during marriage. Defined Contribution Plan IRA, partner regularly contributes to separate account while working Defined Benefit Plan Based on complex ER formula based on years of service & salary (not depend on contributing amounts; no individual accounts) Unvested versus Vested Unvested means it's possible to get nothing if you're fired before vesting. Vested means EE is entitled to benefits even if he quits participating in the plan before retirement. Matured earliest time EE can w/draw retirement benefits All states say pensions are divisible. Only question is if it's vested yet. Valuation of Pension Interest 1) offset against other property 2) use a QDRO Social Security, military benefits are not property (USFSPA allows former spouses of military to get property settlement payments from military if spouse was member of armed forces for at least 10 years) Disability benefits can be divided Laing b/c nonvested pensions may be forfeited in its entirety, it should be considered at trial. Can ask court for help once pension vests. Present value calculation just reduce to present value w/ nonvested Reserved jurisdiction approach pay former spouse a fraction of each pension payment as they come in.

FAMILY LAW OUTLINE QDRO would allow both to get pension interest earned. Own right to receive pension payments from plan administrator. If employed spouse predeceases other spouse, the other can still benefit from pension. Valuing Goodwill Value of business other than just the net assets such as the management of business won from public and loyal old customers. Enterprise goodwill attaches to business itself and separate from owner reputation. Transferrable. Includes existing business arrangements w/ suppliers & customers. Personal Goodwill associated w/ individuals; service businesses mostly; like future earning capacity. Professional Degrees Not property b/c future monetary value is uncertain except in NY; any assets potentially gained would be after marriage dissolved. Alt: reimbursement alimony for financial contribution to spouses training.

Child Support 1) flat percentage guideline based on number of kids 2) income shares model (OR) kid gets same proportion of income as would have otherwise gotten if parents stayed together. Updated every 4 years. 3) Delaware/Melson formula 4) Cost-sharing model (end up less support usually) 5) Equalize living standards model The last 3 aren't that popular or adopted by anyone. Peterson definition of income for federal tax purposes may not necessarily be income for child support purposes. "Receive" guided disposition of income & for his benefit Colona when noncustodial parent has less significant income than custodial she won't be able to have environment that kids are used to living in. So increase child support of noncustodial. Atypical, minority approach Childers (WA) whether court can order support for kid dependent & want to go to college. Relies on another for reasonable necessities in life. Divorced parent may have duty of support for college education if it works parent no significant hardship & kid shows aptitude. CA support for education till graduate high school reach 19 years old. Parents can reasonably condition the money they give to older kids. Contrary view in OR no conditions on kid's behavior

FAMILY LAW OUTLINE ORS 107.108 A support order to provide for the support or maintenance of a unmarried child (18-21) attending school a prorated share based on # of children for whom support is ordered (A) Written notice of the child's intent to attend or continue to attend school. The child shall provide the notice before reaching 18 years of age. (B) Written consent that: (i) Is directed to the child's school (ii) Gives the school authority to disclose to each parent ordered to pay support the child's enrollment status, whether the child is maintaining satisfactory academic progress, a list of courses in which the child is enrolled and the child's grades; and (iii) States that the disclosure is for the purpose of permitting each parent to verify the child's compliance with the requirements of this section. . American Health RB for holding kids responsible for indigent parents' expenses (minority) Modification and Termination of Support Obligations Upon showing substantial or material change of circumstances. Involuntary income decrease is sufficient reason to modify but voluntary isn't. Different approaches to voluntary decrease 1) complete bar to modification 2) change made in good faith (look at sole or primary motivation for change) 3) any negative impact on payee spouse bars Factors: age, health, motives in retiring, timing, ability to pay maintenance, and ability of other spouse to support herself ORS 107.135 (c) Terminate a duty of support toward any minor child who has become self-supporting, emancipated or married; (d) After service of notice on the child in the manner provided by law for service of a summons, suspend future support for any child who has ceased to be a child attending school as defined in ORS 107.108; (e) Set aside, alter or modify any portion of the judgment that provides for a property award based on the enhanced earning capacity of a party that was awarded before October 23, 1999. A property award may be set aside, altered or modified under this paragraph: (A) When the person with the enhanced earning capacity makes a good faith career change that results in less income; (B) When the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person's control; or (C) Under such other circumstances as the court deems just and proper. (2) When a party moves to set aside, alter or modify the child support provisions of the judgment: (a) The party shall state in the motion, to the extent known:

FAMILY LAW OUTLINE (A) Whether there is pending in this state or any other jurisdiction any type of support proceeding involving children of the marriage and (B) Whether there exists in this state or any other jurisdiction a support order involving children of the marriage, other than the judgment the party is moving to set aside, alter or modify. (3) In a proceeding under this section to reconsider the spousal or child support provisions of the judgment, the following provisions apply: (a) A substantial change in economic circumstances of a party, which may include, but is not limited to, a substantial change in the cost of reasonable and necessary expenses to either party, is sufficient for the court to reconsider its order of support, except that an order of compensatory spousal support may only be modified upon a showing of an involuntary, extraordinary and unanticipated change in circumstances that reduces the earning capacity of the paying spouse. The court may not set aside, alter or modify any portion of the judgment that provides for any payment of money, either for minor children or for the support of a party, that has accrued before the motion is served. However: (a) The court may allow a credit against child support arrearages for periods of time, excluding reasonable parenting time unless otherwise provided by order or judgment, during which the obligor, with the knowledge and consent of the obligee or pursuant to court order, has physical custody of the child Remarriage Need specific language that spousal support survives recipient's remarriage to be enforceable. Need extraordinary circumstances to justify continuing payments. 1) automatic termination except in extraordinary circumstances 2) auto term unless parties contract to continue support 3) matter should handled as matter of changed circumstances Look at the reasons behind support. Cohabitation Look at public policy of the state regarding. Usually no duty to support like in a marriage so usually not a reason to modify. Look at duration, econ benefit, intent of parties, nature of living & finan arrangments, likelihood of continued relationship Ainsworth obligation to stepchild is not a preexisting duty but court can use equitable principles to do what's fair. There is a duty to support stepchildren while married that ends upon divorce. So it's fair to modify child support from prior marriage if with new marriage comes a stepchild that you have to take care of. This new kid will be counted in the total number of kids. Dissent: just consider number of kids at time of dissolution when calc support. Enforcing Support Orders

FAMILY LAW OUTLINE 1. Criminal (fixed time & amt) or civil contempt (obligor knew of support & willfully refused to pay while he had ability to do so) 2. Work orders 3. Wage withholding 4. Tax refund withholding 5. Loss of licenses Can't modify for support past due but might be possible to get offset for child care allowing other spouse to work. Moss inability to comply is affirmative defense. Burden of proof on D by preponderance of the evidence. 13th Amendment not prevent enforced labor for crime punishment. Ct order for parent to work to support kid not being parent to any particular employer or employment. Prima facie case: 1) willful disobedience of court order 2) obligor knew of order & not complied State not have to prove that obligor had ability to pay (presumed) Courts are less forgiving b/c he could have sought modification or did something before getting to contempt stage. In Oregon, can use visitation as a bargaining chip against support obligation theoretically but never used by court ORS 107.431(1)(d) Income Tax & Bankruptcy No tax consequences for property transfers during marriage, prop. Transfers incident to divorce (w/in one year of termination), spouses transfer property to 3rd party for benefit of former spouse Purpose is to give debtors a fresh start by freedom from BK debts while equitably dividing assets among creditors. Courts may dismiss CH 7 proceeding after notice and hearing "for cause" Bad faith is "cause" Treat intent of parties at time of divorce to determine character of order as alimony, maintenance, or support (even mortgages can be characterized as support) Bankruptcy orders for spousal or child support or student loans are not dischargeable. This type of courts won't modify amounts required to pay go back to state cts for that Remedies for other spouse: get a lien on property (b/c if husband BK then debts shifts to wife)

Child Custody (ORS 107.137) Best interests of the child standard (factors influencing) 1) primary caregiver presumption 2) econ factors not relevant

FAMILY LAW OUTLINE 3) gender neutrality; no maternal preference 4) parents willingness to cooperate w/ other parent 5) other (i.e. abusive behavior) related to kids welfare Custody determination is based on assessment of emotional bonds btw parent & child & how best to provide continuity of attention, nurturing & care. Troxel (WA) parents have constitutional right in kids that allow them to cut off grandparents access. Rights of parents usually trump other parties unless theyre unfit. ALI principle: post-divorce custody arrangements should replicate pre-divorce Oregon Family Fairness Act nonbiological gay parent can be legal parent like in vitro situations or in adoption situations. Joint Custody 1) Default: sole custody w/ visitation or parenting time for the other parent 2) Joint: kids benefit from continuing contact w/ both parents (ORS 107.149) a. Physical custody: right to make daily decisions when kid is w/ parent (1/3 time) b. Legal custody: right/obligation to make long range decisions of major significance; equal voice. -past conduct of parents, willingness of parents to share custody, preference of child, disruption to kids life, age/number of kids, financial status, demands on parental employment, impact on state of federal assistance If parents cant get along see ORS 107.169, ORS 107.179 3) Split custody: each parent has physical care of 1+ child Establishing Parental Unfitness (ORS 107.137) Abuse of one spouse by another; ability of parents to get along Factors to consider: 1) sexual conduct (actual harm or adverse effect to kids must be shown) depends on statute but potential future harm is usually insufficient 2) race (Constit. cant control but neither can it tolerate discrim) 3) religion (only considered to the extent decisions jeopardize mental health/physical safety of kids. In WA, reasonable & substantial likelihood of immediate or future impairment. 4) Abusive conduct of spouse to other spouse Unfriendly co-parenting factor to consider in custody. MA Supreme Court could be constitutional to have presumption against awarding custody to parent when preponderance of evidence shows parent engaged in pattern and serious incidence of abuse. Presumption neutralized if both abusive unless one clearly outweighs the other Rebuttable by preponderance that best interests of child to stay w/ challenged parent

FAMILY LAW OUTLINE Enforcement of visitation and parenting time when moving 1) primary physical custody (PPC) has authority to determine where kid will reside; change of circumstances rule applies 2) PPC must justify move Should we punish PPC when parent has w/held kid from other parent? Trial court decisions as to visitation rights are reviewed on clear abuse of discretion standard. Judgment is plainly wrong or w/o evidence to support it. Presumptive right of PPC to change residence so long as removal isnt prejudicial to kids rights or welfare (substantial change detrimental to child) Permit consideration of impact on move on relationship w/ noncustodial parent and the motives of the moving parent Arizona puts burden on the mover. ORS 107.159 notice requirement if move more than 60 miles away. State ex rel. Johnson v. Bail (OR) when determining custody in modification proceedings court looks at parents conduct only if conduct is causing or may cause emotional or physical damage to the child. Unless parents illegal act is causing or may cause damage to kid not consider

Premarital Agreements Agreement btw prospective spouses made in contemplation of marriage and to be effective upon marriage. Rights of child cant be adversely affected by such contrtacts. Ors 108.700 Uniform Premarital Agreement Act Like any K, must enter into voluntarily, w/ consideration, and satisfy statute of frauds No fraud, misrep, or duress allowed spouses bound otherwise Simeone (PA) terms dont have to be fully understood or disclosed; not need counsel 1) procedural fairness voluntariness, duress 2) substantive fairness disclosure dont look into substantive fairness check out unconscionability in contracts outline UPAA parties should be able to K for whatever and be able to rely on it ALI principles greater weight on fairness of result at time of enforcement Courts shouldnt enforce if term works substantial injustice 1) number of years passed

FAMILY LAW OUTLINE 2) couple has kids now 3) substantial change in circumstances Prenuptial reservation of ownership over land, money, and other property, acquired in past, present, or future. Intention to get best out of marriage w/o incurring obligations. Not like regular Ks in that theres no arms length like in commercial transactions Factors: 1) unfair price 2) exploitation of distress 3) incapacity 4) price ignorance 5) susceptibility to unfair persuasion Common law approach? (look up) Post-Marital Contracts (Separation Agreements) Parties can K to divide up property, support & debts in any way and courts will rubber stamp unless: 1) term unconscionable or unfair to one of the parties 2) kids will be harmed by term in agreement Modification of Agreements In W. VA, if K becomes part of decree (merge) obligation ends when obligor dies If court ratifies and approves K, it retains its character and you can have claim against estate. Goes on till oblige dies/remarries Magic words not so determinative presume (ignore language) unless express contrary periodic payments are alimony. Have judgment remedies & K remedies say end at death (merged basically) Incorporate K becomes sole determinant of rights ORS 107.104, 107.106 Anything goes get K and/or judgment remedies Not care how incorporated Look at if parties contracting trumped jurisdiction prevailing law? Jurisdiction State court jurisdiction to prosecute a divorce requires: 1) domicile of one of the parties 2) but doesn't require personal juris over both parties 3) domicile requirement may be contested by collateral attack (on the juris issue only) if the party wasn't present before the court that granted the divorce If the court follows the procedural rules then their judgment is entitled to FF&C in other states.

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Divisible divorce: separating status adjudication from economic issues Res judicata provides that a matter that has been or could have been litigated in an action and decided on the merits can't be relitigated in a subsequent action by the same parties. A court that lacks juris over a D can't issue a decision that binds her. Collateral Attack D stays home b/c she feels there's no question that PJ doesn't apply. Judgment will be rendered for P in the forum state then P will go to D's state to try to enforce the judgment. Article IV - Full Faith and Credit Clause says that states have to uphold the judgment of other state courts. D can challenge the PJ issue in her state court, but the risk is that if she loses, she can't debate the merits of the case. She waived it by not appearing in the forum state. Every state has a rightful and legitimate concern in the marital status of persons domiciled in the state which is sufficient to justify termination of the marital status even if other spouse isn't present. Williams I (US) states can exercise divorce juris over its domiciliaries. Williams II domicile is not only a sufficient but a necessary condition for full faith & credit recognition of divorce decrees. Residency doesn't equal domicile though many courts treat it that way. For full faith & credit recognition, need: a) present domicile b) intent to remain indefinitely in the future On a collateral attack, look at the domicile requirements of the state that granted the decree. Sherrer (US) if spouse A appears in court of State B to contest divorce but it was granted then she can't collaterally attack the juris issue even if the decreeing court was wrong. Bilateral divorce (where both parties appear) can't be attacked collaterally b/c both sides had an opportunity to raise any issue they want already. Covenant marriages might be one situation where these old juris rules still have relevance. Theoretically, Oregon courts should look at LA, AZ, and MI divorce laws when deciding. Courts don't have to recognize foreign divorce decrees under FF&C but might do so as a matter of comity. Divisible Divorce Vanderbilt (US) - Only court in the state in which real property is located has in rem jurisdiction to determine its ownership and thus to enter property division orders (due process reasons). But many courts will recognize property division orders from courts in states in which the property isn't located if the court has in personam jurisdiction over both parties (comity).

FAMILY LAW OUTLINE Constitutional rule that court can't adjudicate personal claim or obligation unless it has juris over person of the defendant. So State A can grant a divorce but can't cut off wife's support right or decide child custody issues when wife never appeared in its court (separate issues). If state A's law doesn't provide for spousal support once divorce has been issued in state B, it may not be possible for Wilma to recover her support but she might have a constitutional due process violation claim. Personal jurisdiction is required for orders that establish parties' rights and duties regarding spousal and child support. Juris to decide those rights must satisfy the minimum contacts test under International Shoe. If both parties move from state that gave support order and a modification is desired, the forum state would be the state the obligor is in. Obligee can always argue that it's not a convenient forum. Long Arm Jurisdiction in Support Cases Kulko v. Superior Court extent to which court can compel appearance of nonresident obligor to litigate issue of support under the long arm statute. Whether state court can exercise personal juris over a nonresident, nondomiciliary parent of minor children domicile w/in State. Doing this would violate Due Process. PJ depends on presence of reasonable notice to D that action ahs been brought, sufficient connection btw D and forum State to make it fair to require his appearance and that he'd reasonable anticipate to be haled before a state court. To be w/in long arm juris, D must "purposefully avail himself of the privilege of conducting activities within the forum state [and enjoying the benefits of state law]." Uniform Interstate Family Support Act (UIFSA) (similar provision in ORS 110) Bases upon which a claim may be asserted for long arm jurisdiction 1) D personally served w/in state 2) D submits to juris of State by consent, entering general appearance, or by filing responsive doc having effect of waiving any contest to PJ 3) D resided in state w/ child 4) D resided in state and provided prenatal expenses or support for child 5) Child resides in State as result of acts or directives of D 6) D engaged in sex in State and kid may have been conceived by this act of intercourse 7) D asserted parentage in the putative father registry maintained in State 8) Any other basis consistent w/ constitutions of State and US for PJ exercise Interstate Modification and Enforcement of Support Phillip v. Stahl parties were divorced in GA. NJ proceeding where wife asks court to order support for daughter to attend college. Whether "continuing exclusive jurisdiction" for support issues is in GA or in NJ.

FAMILY LAW OUTLINE So long as a support order issued by one state is in effect, a second stat shall not also issue a support order in that same case. If such a second state does issue support order: the order of the second state replaces that of the first A tribunal of this State issuing a support order consistent w/ law of this State has continuing, exclusive jurisdiction over a child support order: 1) as long as this State remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or 2) until all of the parties who are individuals have filed written consents with the tribunal of this State for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction. A tribunal of this State shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this act or a law substantially similar to this act. A tribunal of this State issuing a child support order consistent w/ the law of this State may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state pursuant to this act or a law substantially similar to this act. If everyone moved away from original state, the forum state is where the obligor lives. Child Custody Jurisdiction Do not personal jurisdiction over both parents to decide custody disputes. Do need presence of the child. Governed by UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) goal is to avoid jurisdictional conflict and make sure the best interests of the child are foremost How do you decide that a court has the initial jurisdiction to adjudicate these matters? First place to go is home state of the kid If the home state declines, see if no other state court had "home state" jurisdiction on the date the claim was filed in the State (where are mom and children living?) Initial custody determination To determine which state has proper jurisdiction to make an initial determination of child custody, the UCCJEA proceeds in the following order of priority: 1. The state which is currently the "home state" of the child, or was the child's home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;

FAMILY LAW OUTLINE 2. If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent have a significant connection with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state; 3. If no state has jurisdiction under #1 or #2 above, jurisdiction is proper in any state having an appropriate connection with the child. A state having jurisdiction under #1 or #2 above may decline to exercise its jurisdiction, and transfer it to another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct necessitating a change. "Home state" is defined as the "state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a childcustody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period." For example, young Chris has lived in Iowa with his mother and father for the last three years. If the mother moves to Minnesota, but Chris remains in Iowa, then Minnesota will not have jurisdiction to determine custody over Chris. Iowa is the only state that can determine custody at this point. Continuing jurisdiction Once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child, unless: 1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, and evidence concerning the child's custody determination is not available in the state; 2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or acting parents do not reside in the state any longer. Continuing the example above, Chris and his father move to Minnesota, and live there for more than six months. Now the Minnesota courts may determine custody over Chris. Modification of custody determination Once a custody determination has been made, a court of another state does not have authority to modify the determination, unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state which currently has jurisdiction. Continuing the example, Chris' father gets custody of Chris in the Minnesota courts, and the mom moves to Arkansas. If Chris spends the summer with his mom in Arkansas, his mom

FAMILY LAW OUTLINE cannot go to the Arkansas courts and attempt to modify custody - Minnesota has continuing jurisdiction. Emergency orders A state which does not otherwise have jurisdiction may enter a temporary emergency order, if the child is in danger and needs immediate protection. After issuing such order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction, and argue the issues to the court with jurisdiction. If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having "home state" jurisdiction over the child. If no determination is made, and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody. Looking at support go to UIFSA Looking at custody go to UCCJEA In Re Forlenza UCCJEA, retain exclusive continuing juris until: 1) court of state determines neither child nor child and one parent nor child and person act as parent has signif connection w/ state and substan evid is no longer available in state about kid's care, protection, training, and personal relationships; or 2) court of this state or court of another state determines that child, parents, and any person act as parent don't presently reside in the state. Full Faith and Credit for Child Support Orders Act & Parental Kidnapping Prevention Act Require states to recognize, enforce, and not modify support or custody orders across state lines. International Child custody disputes 1) Habitual reside of child determines what law should apply 2) Consider what custody rights were breached that were being exercised or should have been exercised Hague Convention provides fed courts w/ juris to determine where issue of child custody should be considered. Go back to state of habitual residence to decide these issues. Removal of child is wrongful if (prima facie case): a) breach of rights of custody to person under law of State which the child was habitually resident immediately before the removal and b) at the time of removal those rights were actually exercised or would have been exercised.

FAMILY LAW OUTLINE Friedrich v. Friedrich wife took kid to U.S. w/o inform father and he sued. He has burden of show by preponderance of evidence that removal was wrongful. Burden shifts to mother to show: 1) by clear and convincing that grave risk that return of kid would expose kid to physical or psych harm 2) C&C evid that return wouldn't be permitted by fundamental principles of the requested State relating to protection of human rights and freedoms 3) By preponderance that proceeding commenced after 1+ yr after abduction & kid is now settled in new environment; or 4) By preponderance dad not exercising the custody right at time of removal or had consented or subsequently agreed to removal Habitual residence is not to be confused w/ domicile. Can only have one HR and pertains to customary residence before removal. HR can only be altered by change in geography and passage of time, not by changes in parental affection or responsibility. If parents manifest a settled purpose to relocate then HR of the child follows to new location. Where move is conditional or of limited duration that might not be the case. How child regards new home is also an important consideration. Federal Court Jurisdiction over Domestic Relations "Domestic relations" exception to federal diversity jurisdiction. Federal courts have no jurisdiction over suits for divorce, the allowance of alimony, or child custody decrees. Lawsuit for a tort involving family matters is okay. Exists as a matter of statutory construction that Congress has apparently accepted it State courts are more eminently suited for work of this type as they have close association with state and local government organizations.

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