INTRO Look for: themes and theories, rules and procedures (state-based), constl fam law (incl.

state constns), law reform (always a possibility!) Standard of review: in examining DP violations, remember: o DP protects indivs against deprivation of rights wo rational basis o Govnt may not burden an indiv exercising zer rights wo giving reason  This reason can be pretextual or just BS  If right is fundamental, standard is strict scrutiny = it may only be abridged w compelling state interest (and abridgement is narrowly tailored to fit interest) o Conserv v. liberal sparring ground (DP might not really protect much if too much state power to interfere, result of too low a standard). Dont want morality of some to compromise liberty of all. o Summary:  Griswold absolute right to control, no state interest  Eisen EP but ratl basis  Meyer & Pierce state cant unreasonably interfere = ratl basis  Roe strict scrutiny  Gonzales undue burden for abortion  Lawrence avoided o Summary Zablocki, EP viol:  Significant interference (w right to marry) strict scrutiny. Sig interf = directly and substantially interferes  Reasonable interference minimal scrutiny Constlly protected privacy right o Right to privacy isnt in constn but judges feel its fundamental o Griswold  Bill of Rights have penumbras that give zones of privacy, which includes marital privacy. Here, narrowprivacy = spatial privacy o Eisenstadt  State may not distinguish married and unmarried ppl in giving out BC  SoR: ratl basis. Here, no need for state interest examination (pregnancy not punishment of premarital sex) Pluralism o Right of fams to make decisions wo interference o Meyer  Statute restricting teaching of foreign lang unconstlviolates DP  States cant interfere w fundamental indiv rights o Pierce  State law reqing kids to attend public school unconstlviolates DP  States cant interfere w parents liberty to decide their kids upbringings, which includes education Privacy penumbra liberty as fundamental right; liberty becomes center of right to privacy o Roe  Abortion statute wo considering pregnancy stage and mothers interests unconstlviolates DP  Right to privacy includes right to decide [whether to terminate pregnancy], though must be considered against impt state interests (hence trimester test) Label a right fundamental and it has to pass strict scrutiny (which it doesnt here)

Pro Roe: right to a decision, sex equality (women should be able to chose to have hetero sex, men not burdened with potential pregnancy), no compelling state interest preconception (fetus not a person) o Anti Roe: states interest in life/potential life, legislative issue, too much female power Burdens on privacy o Carhart (Gonzales)  Statute banning partial birth abortions unconstlundue burden on womens decision to obtain certain kind of abortion  Undue burden test softens Roe standard, eclipses state interest (but note govnt can still choose what to and not to fund, just cant restrict right unduly) o Planned Parenthood (Casey)  Spousal notification unconstl bc undue burden. Undue burden if statutes purpose/effect is to create substantial obstacle to woman getting abortion. Still constl right to privacy/abortion but lower standards for restriction (spousal notif, 24 hr waiting ok) Empirical data (DV/spousal abuse), body, gender steteotypes = unduly burdensome  Like Carhart, state can still have regs that further health/safety of woman but cant put obstacles in front of existing right Note law operates against medicine (not women) o Taft  Single petition rule unconstl. If state reqs parental involvement (consent, notif), it has to also provide an alternative to minor where they can have access to abortion wo that (judicial bypass) o Casey, Taft and maybe Roe probs should have been as applied challenges bc for some women, alt abortion safer; for minors, abortion bc either mature enough or too immature Limits on privacy (always see if state or indiv has more interests) o Right to die: indiv privacy and fam right to make choices may be limited bc state has interest in preserving life (so may have safeguarding regs)  Cruzan: assumption of right to die for competent person (hierarchy of fam members, idealized fam) o Indiv bodily autonomy: person decides. If cant give informed consent, her decision ascertained through substituted judgment o Same-sex sex statutes  Lawrence: overrules Bowers (no constl right to consensual homo sodomy). Right to privacy given by DP gives right to engage in conduct wo govnt interference. No legit state interest that justifies intrusion into private life of indiv. (question is of indiv liberty/freedom to engage in DP-protected privacy)  Privacy abandoned in favor of liberty analysis, bc privacy triggers strict scrutiny (also note morality not enough to justify. EP analysis might render laws reqing marriage to be 1 man 1 woman discrim) o

GETTING MARRIED Marriage = K + status; trend is to move toward K statusfreely negotiated bargains o Maynard: other Ks can be modified but marriage is social relationship (parent-child) Breach of promise to marry: trend is to abolish cause of action o Gilbert: statute establishing breach as common law claim paternalistic, sexist o Anti-heartbalm statutes enacted to rid of breachesnot cts place to decide personal issues (though can still try to K damages for $ lost in planning wedding, etc.) Engagement ring: trend is to return ring 2

Older rule: donor doesnt get ring back if broken engagement is donors fault Modern: ring is inherently conditional; once broken should be returned regardless of fault  Meyer: fault irrel in determining ownership; cts dont want to determine fault in breakups Premarital agreements: trend is more popular bc signal freedom to K in marriage (old fear that they would encourage divorce) o Simeone: should be treated like normal K; bound by terms unless fraud, misrep, duress o Greenwald: ct must consider parties perspectives and freedom to K at time of K o Ct requires  Procedural fairness (disclosure of financial info, voluntariness)  Substantive fairness (how resources are allocated); though cant be invalidated just bc prop division is unequal State regulations: some ability to reg, but powers limited by 14th Am o Loving  Equality issue, not privacy; EP reqs racial classifications be subject to strict scrutiny and 14th Am intended to remove classifications  State cannot infringe upon indivis right to marry someone of particular race; freedom of choice to marry is fundamental and basic civil right, cannot be limited/interfered w by state o Zablocki  State int in enforcing child support is important but not enough to deprive an indiv of zer fundamental right (to marry)  If a statute denies a fund right, it must be supported by sufficient state int and must be closely tailored to effectuate those to remain constl (strict scrutiny). Here, interference too significant  Interference/statute mustnt chill/dissuade ppl from forming new fam obligations (e.g. freedom to take on new fam, constly protected) o Turner  Constl protection to marry applies to prisonmates; decision to marry constlly protected fundamental right (Zablocki) and this right is retained regardless of status as prisoner  Reasonable relatnmarriage ban not reas related to penological goals  Marriage = gendered instn; not letting them marry would make women indept  Marriage doesnt = cohabitation State more able to regulate when marriage involves incest, bigamy, etc. o Bigamy  Free expression of relig an issue; morality  Potter: state prohibitions against plural marriages constl; dont violate constl guarantees of free ex relig or privacy right o Incest  Problems: genetics, morality, societal order, fam strife  Must pass Zablocki ratl purpose closely tailored test  Adoption of M: legitimacy of future relationship > past legal status; in exceptional cases can void adoption when in best interests of child o Age restrictions  Moe: state statute reg marriages involving minors must be ratly rel to legit state int, but state has interest in protecting minors from immature decisions and preventing unstable marriages (ct deprives minors of constl right to marry bc of vulnerability of minors)  Marriage = K; min maturity threshold to enter Annulment = marriage never happened o o 3

No spousal/child support Many cts req there be a fraud that goes to essence (usually = ability/willingness for sex/children/childrearing) of being married; strict test for fraud bc public pol is to preserve marriage o Radochonski: affairs and lies do not = fraud that goes to essence of marr o Today: divisions might be similar to divorce bc of equitable doctrines, though no support; no-fault divorce, less reason for annul (but better bc no stigma of divorce) Procedure o Pub pol favors marriage such that even wo a license marriage may be legit (though most states req license, ceremony just relig/tradl)  Carabetta: unlicensed ceremonial marr not void unless statute explicitly says unlicensed marriages void  If parties act assuming married, no reason to change o STD/blood testing generally no longer reqd; get away from marital-procreation link Common law marriage o 4 elements  Capacity to enter marital K  Present agreement to be married  Cohabitation  Holding out to community as husband and wife (reason: prevent fraud) o Jennings: ct reluctant to declare marr wo convincing evidence; here, not enough Putative spouse doctrine o 3 elements for ct to recognize marriage  Indiv participated in marr ceremony in good faith  Believed valid marr took place  Ignorant of impediment making marr void o UMDA: put spouse acquires rights legal spouse gets, but if legal spouse or other put spouses, this put spouses rights do not supersede theirs; ct apportions property/support among claimants as approp Confidential marriages = cohabitating couples can get marr license and have it sealed so no one knows when living together Proxy marriages = allow another to stand in place of spouse (war time) Same-sex marriage o Goodridge  MASS commonwealth may not deny a same-sex couple wishing to marry the same protections and benefits that theyd get in a civil marriage Civil marriage not just about kids/procreation, but about exclusive commitment No ratl reason for hardship it places on community  Like Loving, denial based on single trait; right to marry means nothing if you cant marry whomever you want  Liberty language/approach Indiv liberty and DP rights, not EP Central to personal freedom is that laws apply equally to ppl in similar situations o Challenges  Liberty/DP: Zablocki test (does dir/subst interfere w rt, does state have suff imp int, does restr serve that int only); BUT Zab also says state can make reas restr on marr  Gender discrim/EP: discrim to base right on sexes. Federalintermed scrutiny, but if state has eq rts Am gets higher scrutiny o o 4

Sexual orient/EP: classification is dicsrim. But: amendments not intended to req same sex marr Loving, only reason could find was white supremacy. Here, marr initially for procreation, but wouldnt be for same-sex couples Ratl basis review enough bc not protected class (no special standard of rev) Get more protection if show animus-based discrim  Common benefits clause/EP: govnt established for com ben, prot, sec of pplno distinct classes of ppl (no nobility)  Children/EP Children of married adults have benefits children of unmarried dont Shouldnt punish children for parental conduct/sexuality Plyler: children of illegals have right to pub education Marriage = diff to diff ppl. Cts say union of 2 ppl excludes others. Also relig, convenience, friendship, to be parents. Commonality: joining of 2 ppl as legal unit. Evolves. Remedies o State can gender-neutralize marriage o Secular union system only (and relig separately) o Civil unions for same-sex (but might create class) o Swanson: one partner adopts another to circumvent restrictions and allow inheritance; varies on state Conflict of laws o If same-sex marr in 1 state, anywhere you go it gets recognized by that state but other state need not recognize if strong pub pol against it (FF&C of Constn) o Ct says fed system allows each state to be laboratory; but this creates diff stati in diff states o Restrictions in response to same sex marr  DOMA: defines marr as man and woman; says no state need recognize same sex marr from another state  State statute/constl amendment  Zablocki test

BEING MARRIED Themes o Privacy: state may be gatekeeper to marriage, but there are constl AND common law privacy shields o Pluralism: state shouldnt be standardizing by imposing details within marriage o Gender roles: traditionally marriage specified responsibilities for men and women, but now equality doctrines gender neutrality; impact diff on men and women o Unity v. individuality: marriage less 1 unit of 2 but 2 indivs (decoupling couple) o Channeling: social conditioning Duty of support o McGuire: living standards are household concern, not cts; no ct interference or support payments while parties still married. Ask whether non-ct-intervention would exacerbate gender power. One must leave otherencouraging separation o Intersection of duty of support and nonintervention Marital property o Common law: husband and wife own property separately; during marriage, property belongs to spouse who acquired it

Community property: each has half interest in any property acquired be efforts of either spouse during marriage o Today: 3 facially neutral rules  Sole/indiv control: if you earn $ you get to control it solely despite being owned by both  Dual/joint control: agreement of both spouses reqd for com prop transactions  Equal control: either spouse has authority to dispose of com prop (most com prop juris follow this) o Unif Marital Prop Act: spouses acting alone can control marital prop held in their name alone, prop not held in eithers name, and prop held in boths name; must act together on prop held in boths name Naming o Today, left to indiv. Can change name judicially or by common law (consistently, nonfraud use husbands name) o Neal: com law right to change name regardless of marital status o Henne  No constlly protected privacy right covering parent wanting to give child name that has no legally recognized connection to child  Not a fundamental right ratl basis (easy for state to pass)  Policy interests: welfare of children, efficient record keeping, legal connections Married womens rightswifes domicile may now be separate from husbands Employment and leave o Circuit split on marital status discrimination in emplt: some say discrim against status of being married (class of married ppl), some say just to whom you are married  Ross: state law prohibits discrim on basis of marital status in employment o Fam/maternity leave  Pregnancy may lead to gender discrim bc only women can get preg. Overly restrictive rules burden exercise of liberty  LaFleur: mandatory maternity leave only ok if doesnt needlessly/arbitrarily infringe on teachers freedom of personal choice/fam life and if school district can assert leg state int supporting rule, otherwise violates DP  Irrebutable presumption doctrine: not fair to generalize something that should be determined on indiv basis  Guerra: law reqing Rs to permit ees to take up to 4 mo leave w guaranteed reinstatement doesnt violate PDA (no preg discrim) bc states may provide more protection than fed (fed is just minimum) PDA doesnt mandate preg leave; R can just give same/more benefits and protection to other/all workers (bc just has to treat everyone same) o FMLA  Treats men and women same. Reduces Rs incentive to treat all same by getting rid of all protections (instead give everyone more) BUT spouse doesnt include couples living together w kids (same sex)  Trigger leave: childbirth, childcare, caring for close fam member w serious healthy condition, Rs health  Congress balancing work +fam obligations (and tradlly left out women) o Indiv work  Dike: decision to breastfeed is fundamental liberty interest protected from state interference (remanded to see whether regs further a sufficiently impt state int and are closely tailored)  Gender diffs must be both recognized and ignored (both for discrim purposes) Tort claims o 6

Alienation of affection: generally no longer make sense (causality too hard to prove). Trend is marriage = K issue, not 3rd party burden.  Policy concerns: Marriage is impt, protected by state, and shouldnt be interfered with by outside parties; BUT cf. why shouldnt spouse be able to recover just bc theyre the spouse  3 elements Ds wrongful conduct Loss of affection/consortium Causal connection  Jones: evidence of infatuation may be considered when there is no wrongful conduct or causation, but doesnt necc obviate Ds wrongful conduct. Ps can recover even when errant spouse was willing/co-equal participant in affair (would reduce damages based on pre-affair conduct but still get judgment) o Loss of consortium  Rodriguez: spouse may recover (even from R); one who negligently injures adult can foresee victim is married, so damages no more speculative than other torts o Interspousal immunity and evidentiary privileges  Trend is to abolish intersp imm for torts (marr = 2 indiv, not 1 identity)  Boone: immunity would viol pub pol (car crash when spouse injures spouse). Cant preclude recovery based on marital status.  G.L.: martial priv of sexual relations doesnt include imm to personal injury suits btwn spouses based on transmittal of sexual disease (but no standard for reasonable sexual conduct)  Glazner: no imm from wiretapping; statute doesnt distinguish married/unmarried  Rape exemption Liberta: marital exemption violates EP and lacks ratl basis (when statutes distinguish based on marital status must be ratl basis)  Adverse testimony Tradly spousal test only admitted w consent (except confidential communications) Trammel: witness spouse alone holds privilege against adverse spousal test; that spouse can neither be prevented from or compelled to testify Domestic violence o Expert testimony  Allowed when necc to help ppl understand learned helplessness, cycle theory, inability to leave (outside might not be able to understand behavior)  For admissibility cts see if meets 3 criteria Expert qualified to give opinion on subject matter State of art/scientific knowl permits reasonable opinion to be given by expert Subj matt of expert opinion so related to some science, profession, business, occupation such that its beyond laymans knowledge  Hawthorne: expertise and qualifications must be determined to give opinion; then may give to enable jury to understand Ds mental state at time of offense o Police action  Tradly little cooperation, reluctant to get involved w fam disputes, lower priority, want police to have discretion  Fajardo: DV calls cant be assigned lower priority without proof of consistent less seriousness than others. If such a policy, see whether passes ratl basis test o

ALTERNATIVE FAMILIES Govnt acceptance of living arrangements o Belle Terre  State police power not limited to elimination of unhealthy conditions; can create zones where family values/quiet neighborhoods can prosper  Boarding houses, frats, etc. present urban problems (traffic, noise); quiet neighborhoods = legitimate guideline in land use  Families might be noisier than 3 working adults; but ct says ratl and narrowly tailored o Moreno  In order not to violate EP, govnt must show classification furthers legit govnt int  Here, classification irrel to purposes of statute; consider leg history (just wanted to prevent hippie communes but had another worse effect on innocent groups) o Moore  Choice of relatives may not be denied by state  Ordinances may not be so strict as to select certain categories of relatives who may live together. Dont want cities to standardize children and adults by forcing them to live in narrowly defined fam patterns. Slices too deeply into fam defns. Cohabitation o Lawrence + Eisenstadt = end of cohabitation laws? Focus on privacy, ratl basis o Doe: statutes prohibiting fornication and cohabitation for state leg, not cts o Attaching legal rights  Generally cant disallow Ks; Ks end up standing in for some legal protections of marriage. K principles: ct looks at reas expectations of parties and what is equitable for relashe  Marvin Cant base agreement on sexual relashe; against pub pol to K for illicit sex. BUT can sever parts of K that explicitly pertain to sexual services (K btwn nonmarr only enforceable when explicitly prostitutional) Express agreements will be enforced; in absence, cts may look to variety of other remedies to protect parties lawful expectations Ultimately, K: may agree to share earnings or keep separate. Look at parties consideration, expectations (implied agreement). Have to prove K and prove 1 Kd out of it  ALI: recognize relashe after 2 yrs or presence of child. Opt-out option. Have to prove marriage-like relashe. Equitable arrangement regardless of intent  M v H (Canada): same sex couples get same div of property; treat ppl equally or violates EP (equivalent) o Housing  Braschi: extension of protections to nonlegal family; functional test to determine relashe = whether function/behave like a family. However, wouldnt do this to married coupleindeed some wouldnt pass. How else to determine if relashe and not just roommates.  Peterson: status vs. conduct Limitations on unmarried parents rights o Policies  Marriage might be best way to ensure parental involvement  Law might want a father rather than the father 8

Cts have less problem trying to influence adults behavior than protect children from punishment for parents behavior o Stanley: all parents constlly entitled to a hearing on their fitness before children removed from custody; denying hearing to classification of parents (here, unmarried fathers) violates EP o Michael H: state has legit int in promoting stability of marital, nuclear fam; giving boil but non-marr father visitation rights creates dual parenthood which is inconsist w pub pol of parental rights. Concern is for continuity/stability and welfare of child, not parents rights (plus dont want lots of paternity lawsuits) o Same sex couples w nonmarital children  Elisa B: ct doesnt find reason not to enable women to be able to claim presumption of legitimacy. State doesnt want to pay for child. If take child in and hold out to be child, same rights and responsibilities as a father (despite artif insemination, no marriagepresumed spouse)  Cant argue no biol connection to child bc unfair; Unif Parentage Act contemplated 2 parents regardless of sex  In these cases, better for child to have 2 parents and dont have any problem of taking another parents rights away  Parent by estoppel: parent estopped from denying parentage to other bc lived together and accepted services as parent  Parenthood based on intent: basing parentage on planning/intent offers ability to equalize genders and roles in raising child (cant be done if solely based on genetic) Support rights of nonmarital children o Most laws treating illeg children diff gone; UPA replaced most state laws  No legit/illegit distinction; status of presumed parent-child relashe, parents marital status irrel  Applies to children received by father into home and held out as child or acknowledged in writing by father  Tries to provide presumptions o Stat lim changed from 6 to 18 yrs on CSEA claim o Clark: disparate treatment of support actions based on legitimacy subjected to intermediate scrutiny (like gender classificationsbiology tells us real differences). To pass EP, statutes must give child reasonable opportunity to seek support and must be subst related to states int in preventing stale claimsscrutiny is for childs interests o Ct trying to balance btwn incentivizing marriage (discouraging nonmarital sex) and treating child fairly. Dont want to punish child for parents not getting married; no real diff btwn illeg and leg child. Marriage affords child presumption of legitimacy. o Frank S: if woman lies to man about use of BC, no constl viol bc man had chance to avoid procreation before sex. He owes child support. (Cts never want to excuse duty of child support. Paternity support.)

DIVORCE Fault-based system: must be both innocent (divorce is an equitable reliefclean hands) and injured (must be shown) o Tradl grounds  Cruel and inhumane treatment: habitual; tradly verbal abuse not enough today, psychological harm works esp if documented  Adultery 9

Desertion: breaking off of cohabitation + intent to desert. Includes constructive desertion (one makes is so bad that other had to leave; ask if departure justified)  Insanity o Tradl defenses  Condonation: by attempting to reconcile you forgive/condone previous faults (disfavored bc want to encourage reconciliation; conditional forgiveness)  Recrimination: other spouse committed fault also (pol concernmarr already falling apart)  Collusion: mere agreement ruined adversary (vs. connivance: corrupt consent)  Insanity o Criticisms  Not related to actual condition of marriage; dont want details  Punitive systemif couple knows want to be apart/agree to divorce, amounts to collusion  Poor disproportionately punished bc didnt have means to find way out o Reform  Irreconcilable differences/no-fault Mutual consent extortion problems, whether consent is genuine  No reqt of separation or counseling Reqd sep expensive (UMDA 180 days) Counseling reqt invasion privacy  No claim preclusion to other torts  Freedom to K  Need-base distrib of assets Other divorce conceptions o Consent  Too easy, think about childrenstate has int in making divorce hard in interest of stability for children  BUT marr is easyshould just be a K you can get out of (state doesnt ask why getting marriedmore restrictions going in and less coming out) o Breakdown (some states have adopted)  Test: ct must make a finding, may also not (easier in prac than on paper)  UMDA: standards for living apart, waiting period, separate procedures for contested cases (to make them harder)  Breakdown + counseling (some effort at reconciliation) (e.g. IA)  Fault + no fault combo (e.g. NY) o Covenant marriage: decide which (fault or no-fault) when get married (e.g. LA) o Unilateral divorce on demand  Provides disincentives for decisions one makes (e.g. staying home w kids) if spouse can suddenly rid of another  State wants to promote commitment (but this is personal choice)  Promotes marriage, but not necc good marr (states goal?)  Akin to K: can get out of it whenever you want just have to pay damages No-fault divorce: trend moving this way, especially in distributing finances o All states offer in some form; standards differ. Generally dissolution based on irrec diffs, or that + showing parties have lived separately for some time, and/or serious breakdown in marriage o McKim: petitioner must appear personally and testify at hearing for dissol of marr, unless ct permits affidavit as proof in exceptional circumstances o Nieters: when one party denies marr broken, ct must find 1 of 5 fault situations. If not, separate for 24 mos and get dissol 10

If cant get consent and cant prove fault cant get immed dissol (but this punishes whoever wants divorce bc they have to move out and wait 2 yrs) o Bennington: couple is living separate and apart when cessation of marital duties/relations btwn wife and husband (live sep but still cook for each other doesnt = cessation) o Twyman: ct may allow tort action (int infl emot distr) to be joined w divorce action  Dont want double recovery, expensive  BUT brings fault back in Access to divorce o Boddie: court fees violate DP; poverty cant be limit to access  DP means must give meaningful opp to be heard unless overriding state int  State has monopoly on divorceno alternative. Divorce can only be obtained by going through ct process; criminal stigma of appearing in ct  Suggests subst right to divorce but state still doesnt necc HAVE to allow divorce o Littlejohn: depriv of emplt based on marital status violates contlly protected right to privacy, and this includes not hiring someone bc theyre divorcing/divorced o Aflalo: civil cts cannot disturb decisions of relig tribunals or interpret relig law  Establishment clause: govnt cant back a relig  Free exercise clause: govnt cant force someone to partake in something relig  BUT usually cases side w women and order specific performance Jurisdiction o Once get decree, recognized anywhere. Cant undermine jurisonce states more lib divorce laws dont get you anywhere. No pub pol exception for FF&C. Only option is to attack collaterally on lack of juris. o Kimura: ct has authority to grant dissol of marr decree so long as petitioner is domiciled in state  Juris not based on Intl Shoes min contacts test  Domiciliary reqts met if resided in state for [min per of residency reqd by statute, e.g. 1 yr] and no evidence residency not in good faith or for sole purpose of getting divorce; sufficient demonstration resident of state  Williams I/II: presence + intent to remain o Divisible divorce doctrine: issues other than dissol of marr (alimony, child support) severed from divorce action when ct doesnt have pers juris over one spouse. Valid ex parte divorce can be granted at one spouses domicile. o Bilateral divorce: not divisible; both smj and pj; no one has standing to question juris after; both consent. o Sosna: constl to req 1 yr residency to get divorce  Other durational res reqs didnt have same impt state int: state (here, IA) has int in wanting those getting divorced to have some attachment to state and protect it from future collateral attack  Not a deprivation of divorce, just must wait o Implications for same sex couples: if married state that allows then move to another, must return to state to get divorced, or considered never married in new state o Some states even dissolve without recognizing; but still, juris barriers to access Role of counsel in divorce o Uphold state laws; cant advise them to go to another state o Moses: atty who expects to be paid by opposing party has duty to control excessive demands on his time by dependant spouse o Dunagan: atty may not ethically represent one spouse in divorce action against other after atty previously repd both unless gets informed consent of unrepd spouse o States vary on whether can rep both sides in no-fault div 11

  CHILD CUSTODY -

If obvious can adequately rep both and made full disclosure, ok (e.g. MT) Most say no; no div is completely amicable, sets up for conflict of interest

Governing principle/standard: best interests of child (used to favor father; now favors mother) o Pros: individualized, tailored, fact-intensive; child wins o Cons: promotes litigation (threat of litigation can lead to strategic bargaining behavior); invitation for judges to use own value judgments; invasive Joint legal: decision-making responsibility Physical: residential responsibility only (without joint legal, physical custodian makes all decisions about upbringing) Splits: birds nest (child stays parents switch), sole legal + visitation, joint physical Joint custody o Pros: increases chance child will have relashe w both parents; eases pain of loss bc child gets to see both; father more likely to pay child support if still involved in childs live o Cons: creates instability for child being raised in 2 diff settings; goodbyes hard; child might be used as pawn; forces 2 ppl who dont get along to work together (prolongs adversarial feelings) Modification o To make a change in custody: something new occurs + must be in best int of child o Higher standard bc want stability and to protect custodial parent Selecting custodial parent o Formerly, tender years doctrine: presume childs tender years (usually 13 & under) and bc of that custody should be mothers  Devine: tender years doctrine violates EP bc unconstl gender-based classification (most states follow this) o Nexus test: parents choice of partner must be shown to affect child; personal biases not enough  Palmore: ct cant justify racial classification as basis for removal of child from custody of natural mother o Religion  Abbo: ct does not have authority to enforce agreement btwn father and mother that child be raised in a particular faith over one parents objections o Sexual orient  Delong: sex orient only relevant in custody determination when it can be established that the parents sexual conduct was harmful to child (per se approach ignores hetero parents fitness to get sole custody, so isnt in best int of child) o Career  Rowe: best int of child must be determined; dont place too much emphasis on parents careers/priorities (if no bad effect on child, doesnt really matter) o DV  Schumaker: rebuttable presumption against awarding custody to parent who has committed DV against other. Presumption triggered issue of DV is paramount factor in custody decision. Perpetrator must prove (by cl & conv ev) that best int of child reqs them to have custody. o Childs wishes  McMillen: express wishes of child to live w one parent can be impt factor in determining best int of child, but not controlling in awarding custody Relocation

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Ct less restrictive on non-custodial parent bc it doesnt restrict their access to child. If custodial parent wants to move, more issues  Most rationales focus on imptce of child to have access to both parents  But child would see non cust parent who moves less toomight run into constl right to travel issues o Tropea: each relocation request must be considered on its own merits w due consideration of facts and circumstances, and emphasis on what result will best serve childs ints Parent vs. non-parent disputes o Parent has fundamental rights in care, custody, control of children; can limit contact w any non-parents o Standing  Mostly contested is grandparents standing to bring cases  Unfair to make grandparents relashe w child hinge on success of marriage; may bring in EP claims  Denying standing bc of non-biol may burden constl rights of child by establishing irrebuttable presumption that visitation by co-parent never in childs best int (Alison D.)  Functional test (Braschi): ask whether person is functionally equivalent to parent. Makes threshold test for standing much looser. But cf., e.g., NY: sees test as one of standing (harder) o Defn of parent  ALI parent by estoppel (de facto parent): legal parentliable for support, lived w child, caretaking duties, held out to be child  Cts consider relashe (more than just natural parent) but only of parent; not childs bonds (otherwise wed consider nannies) o Brightline rules for legal parenthood (good bc dont want to give too many ppl access to child and power of exclusion)  Sperm donor not legal father  Accidental pregnancy owes child support  Lesbians getting preg via intercourse bc donor insem too hard? o Troxel: statute unconstlly infringes on mothers fundamental right bc allows any 3rd party to subject any visitation decision by a parent to state ct review  Presumption that fit parents act in best int of children; usually no reason for state to interject itself into private relashe w child  Cite Meyer & Pierceparents DP right to decide on childs upbringing  3rd party can still seek visitation rights o Deborah H.: ct upholds Alison D.  Childs parent has exclusive right to care and custody of child; statute says any parent but doesnt include non-parents even if theyve developed a relashe w child (if biol mother says you can never see child again, SOL)  Cf. Shondel J.: other estopped from denying paternity if non-biol (biol not everything!) Child custody and ct proceedings o Jurisdiction  Parental Kidnapping Prevention Act: custody proceedings take place in childs home state = state child lived in w parents or a parent for at least 6 consec months prior to commencement of suit Recall divorce is based on petitioners domicile. Custody might be decided by diff ct. Marriage is a status so local cts should have authority o

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(Kimura). But this means 2 cts have juris over parents, depending on constl status of parental rights (Troxel) potential DP issue  PKPA provides FF&C has to be given to child custody determinations if state follows home state juris guidelines  Juris tends to stay w original juris to prevent seizing child and running to more favorable places. More likely to be witnesses, evidence in new home but this way no competing decrees (1 ct making decisions) Smolin: ct may not consider merits of criminal charge when they get extradition request Remedies: tort, custodial interference Abbott: ne exeat = right of custody; want to avoid forum-shopping but want favorable outcome. Custodial parents rights?

FINANCIAL CONSEQUENCES OF DISSOLUTION Consequences o Division of property. Theories: contribution, expectations, fault o Spousal support. Theories: reasonable needs, fault o Child support Achieving fair dissolution o Spouses can be awarded fair and equitable based on # of factors; 50/50 (ALI); consider types of assets being split; consider list of relevant factors  Typically length of marr + living standard trump other factors o ALI: want to replace discretion w rules. Mathematical formulas to be applied, bc after certain amt of time spouses have stopped thinking about property separately. So longer marriage goes on, larger fractions of previously separate prop become part of other spouses. ALI trying to correct for future (UMDA would also ignore fault) Alimony vs. division: Decided together but cts generally decide prop first. How each is defined has big consequences o Modification: support (alimony), yes bc rehabilitation changes. Prop div, no bc once marr is over contrib to marr are over (final) o Bankruptcy proceedings (alimony nondischargeable) o Lump-sum alimony: if cant give property bc title in others name (prop law/ownership); alimony may be property in disguise. One expands other retreats o Tax implications: whether or not payments are considered prop or alimony affects tax conseq. If recipient getting alimony, counts as income and is taxed. Payor can deduct for what he pays. Transfers of prop dont create a gain or loss to be recognized Change in circumstances o Keller: recipient spouses remarriage doesnt auto terminate alimony but makes PF case reqing ct to terminate alimony absent proof by recipient of some extraordinary circumstance warranting continuation  Theory: illogical and unreasonable for spouse to receive support from both former and current spouse wo extraord circums; new spouse assumes duty of support upon marriage o Deichert: bankr code provides discharge doesnt discharge indiv debtor from any debt to spouse, former spouse, or child for alimony, maintenance, or support in connection w sep agreement, div decree, or prop settlement Alimony o Objectives  Equitable remedy for spouses who stay home during marr w children  Rehabilitation to let spouse return to market 14

Address seeking spouses reasonable needs if dont have sufficient property (incl marital prop) to provide for their reas needs + unable to support shimself through approp emplt or is custodian of child whose circums make it approp such that parent not be reqd to seek emplt outside home o Theories  Mathematical formula: gives bright line rule, predictability, but no room for indiv determination  Discretionary basis to achieve fairness: approach can change outcome immensely o Case by case  Orr: state statutes imposing alimony obligs on only 1 sex unconstl  Michael: maintenance should be utilized as means of providing support for economically dependant spouse until spouse is self-reliant. No right answer for just and equitable. Rehabilitation is main concern  Rosenberg: marital property = all prop acquired by spouses during marr, incl stock appreciation in retirement funds. When funds are partly marital and partly non-marital, prop retains same character as source. Breadwinner doesnt = biggest contributor. Indefinite alimony bc consider marriage a lifetime of profitsharing  Lucas: both need-based and functional test. Should be economic valuation not investigation into another marriage; so consider change in financial situation (not remarriage). Ongoing payments into future should be based on need Division o Most valuable/contested: home and pension/retir funds o Fam home: if given to 1 spouse something comparable in $ must be given to other to compensate, so usually needs to be sold, but best to keep children in house plus helps custodial spouse  MO ct: looks at desirability of keeping children in same home o Retir funds  Ferguson: spouse who made material contrib. toward acq of prop titled in name of other may claim equitable int in such jointly accumulated prop incident to a divorce proceeding When no separate retir plans for each spouse, only equitable to allow both parties to reap benefits of 1 existing retir plan, to which both parties have materially contrib in some fashion Theories: deferred compensation (money invested when could have been used by both spouses); 1 stayed home which allowed other to work so they could receive pension  Cohen: marital prop includes both vested and unvested retir benefits that accrue during marr (her income/deferred compens too)  Bender: unvested pension conceptually similar to wages (but what if it doesnt vest)  Valuation methods Present value calcs that subtract for statistical probability that spouse will leave job (which reduces value) deferred distribution: ct determines spousal shares by percentage or formula at time of divorce but retains juris so as to delay division until spouse receives payments (discouraged bc frustrates finality) o Academic degrees  Roberts: degree doesnt = marital prop subject to division upon divorce, but can take into acct new earning potential and contributions of other spouse to get 15

degree. Maybe K obligation standards, but maybe too speculative. Dont want unjust enrichment Child support o Objectives  Ensure child adequately cared for  Support to full extent possible  Equalize standards of living  Create fairness for children o Guides  Fed Advisory Panel on Child Support GLs Both parents share responsibility Parental subsistence needs to be considered (but child support shouldnt be set at 0) Child support should cover childs basic needs while allowing enjoyment of parents higher standard of living Each child has equal right to share in parents income GLs shouldnt create economic disincentives for remarriage or work  ALI: 9 general objectives including Childs ability to enjoy min decent standard of living but also standard not grossly inferior to that of childs higher income parent Protection from loss of impt life opportunities Fairness to parents o Federal channeling: states must develop mathematical guidelines in order to remain qualified for fed funds, but may adopt their own models  Income shares: (majority) theory that child should receive same portion of income that would have if fam stayed together. Net incomes combined first  Percent of income: net incomes applied to state guidelines  Melson: (Delaware) theory that non-self-supporting parent is an unlikely child supporter. Ensure each parent is self-supporting first o Downing: child support payment amts are set at levels designed to meet realistic needs of child (3 pony rule); rebuttable presumption for what amt should be, something concrete for judge and parties to work from o No right to child support post-majority (when child turns 18)  Curtis: statute distinguishing btwn children of married and divorced, separated or unmarried parents for purpose of authorizing ct to order parents to provide equitably for post-secondary educational costs of child unconstl bc violates EP; no ratl rel to a leg state int Most states dont authorize post-maj educational support Rule was trying to keep child from being punished by not getting opportunities it would have otherwise gotten if parents stayed together, but legally no way to order a parent to pay when no reqt for regular parents to pay for education o Cant reduce child support bc acquire new fam  Pohlman: reqing noncustodial parent to continue supporting children from 1st marr at same economic level after parent remarries and becomes obligated to support more children from 2nd marr is constl Some states have reverse 2nd fam first: determine need of current fam and use whats left for support payments Zablocki issuescant keep ppl from forming new fams bc of prior commitments; chilling effect o Changed circumstances 16

Voluntary job change: party seeking change in child support must prove by prep of ev that material change in circums justify modification of support oblig Olmstead: ct may impute former income for fairness to child; fathers freedom vs. preexisting obligations. Modif can increase or decrease; may consider whether obligors income increases or decreases Jurisdictions split on whether change of emplt that causes reduction in income justifies modif of support. Some impose good faith standard and deny modif if parent changes emplt for purpose of avoiding support obs Change in needs/inflation Applicable rule still reqs party to show sufficiently changed circums, but guidelines should make awards easier to update than when based on jud disrection Welfare Reform Act: gives states 3 options for reviewing and adjusting awards: process reqd under Family Support Act; cost of living adjustment; automated adjustment based on tax or other records (but custodial parent still has burden of requesting review)

Enforcement o Approaches: income withholding (most popular); order obligor to pay directly to ct clerk rather than obligee (less personal, shortcut to contempt charge); post bond; suspend visitation (through ct order only); imprisonment (released when pays); civil or criminal (has sentence) contempt (both when obligor has ability to pay and doesnt); charge w criminal nonsupport; suspend license/passport o Federal channeling: now states cant get fed welfare $ without implementing certain enforcement tools o Remedies: moving from private to public. Obligee no longer has to go to ct, do anything to get remedy to apply. Many cases have opt out in order for remedy not to apply o Reform ongoing  Oakley: not unconstl to restrict defendant-obligors right to procreate. Though right is a fundamental interest, condition of probate not to father anymore children until show willing to support current children is narrow and can be fulfilled by compliance w law (cf. Zablocki) Jurisdiction o Juris gives rule of divis divorce  Dissolution where petitioner domiciled  Child custody childs home state  Financial matters, child support, property in personam juris over both parties o Try long-arm statutes, reciprocal enforcement  Uniform Reciprocal Enforcement Support Act: parent could go to prosecuting atty who would forward complaint to corresponding atty in other juris to get enforcement. Didnt work well bc state had conflict of int in denying its own citizen $ needed to support ppl in that state  Kulko: merely allowing children to spend time w other spouse in another state is not purposeful availment of benefits and protections of that state such that they satisfy the min contacts test. Can use that states law 1st spouses domicile state. But some think benefits to children = benefits to father. Also cant forum-shop by getting married quickly in one place but can if for gay marriage  Uniform Interstate Family Support Act: pers juris over nonresident bc had lived in state w child for some time (service good in 2 states to get pers juris). Weird long-arm statuteno tort or business but fam relashe o Letellier 17

UIFSA: only 1 tribunal may have juris to modify a support order at a given time. State has no juris to modify child support orders issued by another state that has lost its continuing exlcus juris unless petitioner for modification doesnt reside in state where theyre seeking modification. Both parents consent to new ct assuming juris Ct may determine child, oblige, and obligor no longer live in issuing state; then no more cont exclus juris (if all 3 move)  If resident could seek petition in zer own state to modify order issued in another state, would be inequitable and work hardship on nonresident respondent  Full Faith and Credit for Child Support Orders Act: state has juris to modify an out of state support order only when petitioner registers the order in a state having both pers and subj m juris for purpose of modif Separation agreements o Formerly, any agreement that seemed to take risk out of divorce violated pub pol bc encouraged divorce. Now UMDA favored.  Autonomy and private ordering considered higher value than judicial paternalism  Relieves ct of dealing w issues if parties can figure out on own o Cant agree to anythingmust be conscionable. Ct decides whether terms are unconscionable (if so, void) o UMDA: state statutes provide affirmative policies to promote amicable settlement of disputes o ALI: presumptively unconscionable when substantially change prop rights otherwise due; when enforcement would subst impair economic wellbeing of party w custody of children or party w subst fewer econ resources than other o MO statutes: provide exceptions for custody, care, support of childrenparties dont have equal freedom to make decisions over those matters. Still need protective power over children

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