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Family Law Outline Putt Spring 2012

THE IMPORTANCE OF BEING MARRIED

I. Marital Property
A. Ownership and Control of Wealth 1. The Common Law Tradition a. Husband and wife own all property separately except those items that they have expressly agreed to hold jointly (in a nontechnical sense). b. In the traditional common law scheme, marriage had a significant effect on the management and control of property. While she was single, a woman could hold and manage real & personal property, contract with other persons, sue and be sued. Upon marriage, however, her position changed dramatically. c. Economic Rights Traditional Common Law i. Ownership & Control of Property (A). Traditional common law H got control of Ws property, and ownership and control of Ws personal property. (B). W could be protected if a trust was established. If H put something in Ws name, it was construed to be a gift. However, where W transferred something to H, it was treated as a loan for bailment for safekeeping. ii. Support (A). H had duty to support wife. iii. Power to Contract (A). H and W couldnt enter into contracts together. H would have to enter K for wife. iv. Power to Sue for Tort H had this power. d. Non-Economic Rights Traditional Common Law i. H had control to make decisions. ii. H had control over kids upbringing iii. H had control over where the family lived iv. W had to change her name v. H had power to discipline W. e. Rights Under Married Womens Property Acts i. Women could keep their own property, sell & transfer land ii. W could enter into Ks, though H and W couldnt enter into Ks with each other. iii. W could bring suit in tort, but not for loss of consortium for Hs injury. iv. MWPAs did not change much about the non-economic rights (control, decision making, upbringing of kids, domicile, discipline) 2. The Estate by the Entirety a. Recognized by common law; H & W possessed equal ownership interests in the tenancy. During the marriage, however, the Ws interest was essentially inchoate, while the Hs interest was active. 3. Community Property a. Generally recognizes an ownership interest by both spouses in wealth acquired by either of them during the marriage. b. Roman-Dutch Approach: all property becomes community property upon marriage (property owned before and after marriage). c. Spanish (form followed in US community property states): Premarital wealth is regarded as separate property, and its ownership is not affected by marriage; wealth acquired after marriage is community property.

B. C.

D. E. F.

d. Apart from her dowry, a wife enjoyed the exclusive rights of control, manage, and dispose of the separate property she brought into the marriage, and could, without her husbands consent, convey her separate property. e. The husband possessed full power to manage all of the community property, absent an agreement to the contrary. This changed during the 70s as legislatures revised their statutes to provide that each or both spouses could manage community wealth. 4. The Uniform Marital Property Act Other Property The Daily Management and Control of Marital Wealth 1. At least four schemes of ordering the liability of spouses for necessaries purchased by one of them: a. At common law, the H was liable for both his own debts and those incurred by his W. b. H is primarily liable for necessaries and the W only secondarily responsible; creditor must first go after H and can go against the W only if the Hs assets are inadequate. c. Impose joint and several liability, allowing the creditor to choose either or both spouses as the target for collection. d. Creditor should seek to recover first against the spouse incurring the obligation, making the other secondarily liable. Constitutional Limits on Gender-Based Classifications Spousal Contracts During Marriage 1. Contracts by married women were generally unenforceable at common law. 2. KRS Chapter 404: Contracts and Separate Estates of Married Women Marital Property at Death: The Surviving Spouse 1. The Common Law Background 2. Intestate Succession 3. Testamentary Disposition

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FAMILY CONTRACTS

I. Premarital Agreements
A. Premarital agreements may deal with property rights of the spouse when the marriage terminates by death. B. The landmark Posner case (FL 1970) held that contracts concerning property division and spousal support at divorce are not inherently contrary to public policy. C. Uniform Premarital Agreements Act (CB p875-876).

Kentucky Law
a. Gentry v. Gentry, Ky.1990 (p35) 1. H and W may define by agreement their rights in each others property, regardless of any right which otherwise had been excluded or conferred by statute; antenuptial agreements, provided they are otherwise valid contracts, are entitled to enforcement upon dissolution of marriage. 2. Although antenuptial agreements providing for disposition of property on divorce are permitted, particular agreement may be invalid or void if it fails to meet three criteria: 1. (1) agreement may not be obtained through fraud, duress, or mistake, or through misrepresentation or nondisclosure of material facts; 2. (2) agreement may not be unconscionable; and 3. (3) enforcement of agreement may not be unfair and unreasonable as result of changed facts and circumstances since agreement was executed. 4. Antenuptial agreement will not be enforced if facts and circumstances, examined at time enforcement is sought, have changed so as to make its enforcement unconscionable. [SECOND LOOK DOCTRINE] Edwardson v. Edwardson, Ky.1990 (p47) 1. Antenuptial agreements in contemplation of divorce are permissible subject to three limitations: 1. (1) there must be full disclosure, 2. (2) agreement must not be unconscionable at time enforcement is sought, and 3. (3) agreement may apply only to disposition of property and maintenance; questions of child support, child custody, and visitation are not subject to such agreements and, unless parties otherwise agree, nonmarital property retains its character as such. 2. Upon finding of unconscionability, trial court may modify parties agreement to satisfy necessary standard, but should otherwise give effect to agreement as nearly as possible, providing agreement was not procured by fraud or duress. 3. Trial courts are vested with broad discretion to modify or invalidate antenuptial agreements.

KENTUCKY LAW OF PRENUPTIAL AGREEMENTS


b.

Prenuptial Agreements: KY imposes high standards on prenup agreements because they do not come into effect until time of divorce or death and circumstances will likely to have changed by that time. Many courts see if there was fair dealing at the time the agreement was made. At engagement before marriage, probably owe a fiduciary duty to each other. Courts should apply a higher standard to prenups. For prenups, must: 1) disclose your assets, and 2) give the other spouse a chance to get independent counsel. Stringent rules in KY for what you must do to have an enforceable prenup: 1) have provisions that apply during the marriage (EX: Any stock in my company stays my Page 3 of 56

separate property.); 2) provision in contemplation of death; or 3) provision in contemplation of divorce KY requirements for a valid prenuptial agreement: KY has but a high standard on pre-nump agreementshigher than for normal contracts OH criteria from Gross casecan still use as persuasive: 1. Voluntary: cannot be fraud, duress, or coercion. The best way to show that the agreement was voluntary is to show that the spouse have independent legal counsel. The problem is that the spouses counsel may advise him or her not to sign it. --videotape --get witnesses --notarize? 2. Full Disclosure: what the parties coming into the marriage have as assets. Burden of proof on party relying on agreement to show that there was full disclosure. 3. Unconscionability. Agreement cannot be so one-sided as to be unconscionable. The court looks at this at the time of execution and at the time when the agreement presents a problem. EX: if the agreement was fair when it was made but is not unfair, the court retains the power to modify it. If property division or support or both are unconscionable, the agreement can be modified. The parties will want to put in contingencies so that if it is reasonable now, it will be reasonable in the future. Elements for invalidating prenump agreements: **Gentry v. Gentry: KY SCt. Although prenuptial agreements providing for disposition of property upon divorce are permitted, a particular agreement may be invalid or void if it fails to meet 3 criteria: (1) agreement may not be obtained through fraud, duress, or mistake, or through misrepresentation or non-disclosure of material facts; (2) agreement may not be unconscionable; and (3) enforcement of agreement may not be unfair and unreasonable as a result of changed facts and circumstances since agreement was executed. ***KY says you can modify both the terms of the property AND support if meets Gentry elements. **Edwardson: KY SCt. Antenuptial agreements in contemplation of divorce are permissible subject to 3 limitations: 1. there must be full disclosure, agreement must not be unconscionable at time enforcement is sought, and agreement may apply only to disposition of property and maintenance; 2. questions of child support, child custody, and visitation are not subject to such agreements; and 3. unless parties otherwise agree, non-marital property retains its character as such. Edwardson: KY SCt said you cannot make provisions about child support, but Lowell thinks this is dicta case wasnt about this. Child support is capable of modification. c. Lawson v. Loid, Ky.1995 (p124) 1. Prenuptial agreements which are intended to take effect at death of parties are valid and favored by law. 2. Burden of proof regarding question of full disclosure of assets at time of prenuptial agreement rests on the party relying on agreement.

E. Uniform Premarital Agreements Act (p875) 1. Much different than Kentucky 2. Can include basically anything 3. Much harder to overturn an agreement 4. Only allows modification of maintenance if party would end up on welfare.

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II. Postnuptial Agreements


A. Some jurisdictions impose same standards for prenups (including Kentucky). Some states are much more stringent with postnups. B. Borelli v. Brusseau (Cal.1993) [p88] 1. Younger woman marries older man enters into prenup 2. H was admitted to hospital, then nursing home after stroke. H & W entered into a postnup where the H promised to leave W more property if she agreed to care for H in his home for duration of his life. 3. W performed her promise, but the H who died did not perform his, bulk of his estate went to his daughter. W tried to enforce postnup 4. Court holds that spouses must provide care when necessary, and contracts where W receives money for such services are void against public policy. C. Pacelli v. Pacelli (NJ 1999) [p99] 1. Parties were married for a long time. H told W that he would divorce her unless she agreed to certain terms regarding their economic relationship. W signed to preserve marriage. 2. H filed for divorce, trial court enforced postnup. W appealed. 3. The appellate court said that the context in which H made his demand was inherently coercive. 4. Need not decide whether such agreements are so inherently and unduly coercive that they should not be enforced at the very least, they must be closely scrutinized and carefully evaluated. Postnuptial agreements: courts tend to give these more scrutiny. In Pacelli, W wanted to preserve the marriage and H presented her with an ultimatum. Court in Pacilli looked at (2) and (3) from above. Court stated that our point is that the context in which P made his demand was inherently coercive. Ds access to eminent counsel is of little relevance because her decision was dictated not by a consideration of her legal rights, but by her desire to preserve the family. Court found terms were unfair and the process was flawed (H took advantage of Ws dedication to the marriage and her family). Spousal Ks during Marriage: **Borelli v. Brusseau: (CA) We therefore adhere to the long-standing rule that a spouse is not entitled to compensation for support, apart from rights to community property and the like that arise from the marital relation itself. Personal performance of a personal duty created by the K of marriage does not constitute a new consideration supporting the indebtedness alleged in this case. - W says H made oral agreement that as long as she took care of him, she would get certain property. Court held oral agreement isnt enforceable because the marital duty includes the duty of care. **Pacelli: (NJ) agreement was made between H and W while married. Agreements made at the end of a marriage in contemplation of divorce and to fix each partys economic rights on entry of a divorce judgment are enforceable if fair and equitable. Standards of Attack of Agreements made at the end of Marriage: (1) terms violate public policy. (2) process by which agreement is made is flawed (duress) (3) terms are unconscionable. (grossly unfair) (4) circumstances have changed so much that the court should modify the terms or refuse to enforce them. (2) and (3) are used in family law; especially (3).

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COMMON LAW MARRIAGE AND RIGHTS OF UNMARRIED COHABITANTS

I. Common Law Marriage, Presumptions of Marriage, and Putative Spouses a. Common Law Marriage
(Common Law Marriages)3 types nonmarital relationships 3 types of non-marital relationships 1. #1. Man and woman live together, split up or one dies. 2. #2. Man and woman live together + invalid ceremonial marriage. Most frequent is not getting a divorce before marrying second spouse. 3. #3. Part of the relationship the parties are cohabiting, part there is a valid marriage. Common Law marriage in Ohio **Nestor v. Nestor: Ohio SCt case. Parties lived together for 13 years. Man died and there was a fight over who should be the executor of his estate, his blood relatives or the woman he lived with. No ceremonial marriage. Elements required for a common law marriage in OH: 3. (1) agreement. This may be proven by direct or indirect evidence. Indirect evidence may consist of cohabitation, acts, declarations, conduct of the parties, and recognized status in their community. Can infer the agreement from the indirect evidence. 4. (2) cohabitation. Must be proof that parties had sexual activity in the open manner of H and W in a marital state. 5. (3) reputation of the parties. There is a holding out to those in the community of being H and W to those with whom they normally come into contact. It is not necessary that they disseminate information to all society generally or to all of the community in which they reside. 6. --OH SCt held that there was enough evidence to show that the marriage had been established. Other factors courts have considered to prove a common law marriage: 7. length of the relationship 8. quality of the relationship 9. children born of the relationship. Courts are more likely to recognize the marriage in this circumstance. 10. who is opposing the common law marriage and why? 11. there is a ceremonial marriage but it is not valid (EX: one party is still married to someone else). 12. EX: couple marries, divorces, remarries, divorces again, and then lives together. Some courts say that a prior ceremonial marriage is a negative factor; the couple should have know that in order to be recognized as H and W, they needed to have a ceremonial marriage. Other courts say the opposite. 13. living together. Some courts say this is an impediment, others say it isnt. 1. 2.

b. c. d.

e.

1) What must you prove to have a CL marriage? 3 elements above. 2) What are the benefits of a common law marriage? Parties have all the rights of spouses of a ceremonial marriage. 3) Can you use the common law marriage doctrine in the jurs that you are in? If the state you are in does not recognize it, the state you are in may recognize a common law marriage if it was made in a state that does recognize common law marriages. EX: KY may recognize a common law marriage established in OH if its valid in OH (See 3105.12 on pages 14 & 15). - States that recognize common law marriages: Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah. OH enacted a statute abolishing common law marriage. ORC 3105.12. BUT, if relationship started before the amendment to the statute (1991), OR Page 6 of 56

if the relationship came into existence in another state that recognizes common law marriage, then OH will recognize the CL marriage. EX: Couple established a CL marriage in Pennsylvania and then moved to OH before the amendment in 1991. 1. Today, only 11 states and the District of Columbia allow common law marriages to be formed within their boundaries.

c. KENTUCKY LAW
a. b. KY does NOT recognize common law marriages!!! However, KY may recognize a CL marriage legalized in another state. 1. **Vaughn v. Hufnagel: KY Ct of Apps. Have to have been domiciled in a state that recognizes CL marriages. Parties have to establish themselves as members of the community in the state which recognizes CL marriage. It takes more than traveling to Pennsylvania for a week to recognize the CL marriage in KY. (Vaughn was decided in 1971; no longer CL marriages in OH after 1991.) REMEMBER, there must be a holding out as H and W to members of the community. 2. Vaughn v. Hufnagel, Ky.App.1971 (p5) i. Kentucky does not recognize common law marriage within boundary lines of Kentucky, but may recognize one legalized by another state. ii. A Kentucky couple merely visiting a common law state doesnt count couple must become an established part of community in that CLM state (some states are much more liberal).

d. Presumptions of Marriage and Putative Spouses a. Spearman v. Spearman (5th Cir. 1973)(p190) i. When a person has contracted two successive marriages, a presumption arises in favor of the validity of the second marriage. The presumption of validity accorded the second marriage is a rebuttable presumption. ii. First spouse has burden of proof that H had not dissolved their marriage by showing that there is no record of divorce in any jurisdiction in which he was domiciled. iii. Burden of demonstrating the invalidity of the first marriage then shifts to the party asserting its invalidity. iv. A putative spouse is one whose marriage is legally invalid but who has engaged in (1) a marriage ceremony or a solemnization, on the (2) good faith belief in the validity of the marriage. v. Majority of states follow this approach. b. Cannot use putative spouse concept in Kentucky. Legislature did not adopt Section 209 of the UMDA, which contains broad putative spouse provision.

II. The Legal Position of Unmarried Cohabitants


A. Rights and Duties Between the Parties 1. Marvin Remedies: Court touches upon several remedial concepts: a. Implied Agreement i. No express K, but an agreement can be inferred from parties actions. b. Purchase Money Resulting Trust i. If you give money to an investment, youre not doing it as a gift, youre doing it yourself. Involves a direct payment for a purchase by another party. Invested for person giving money, not other party. Page 7 of 56

direct contribution: in this case, there may be an express trust to provide for the cohabitant who has contributed money. If not, the courts may impose a purchase money resulting trust: there is a presumption that the assets are being held in trust by the person who contributes money to make sure that the asset ends up in the hands of the person who purchased it (unless you can show it was a gift). In Glidewell, P got money and a share in the increase in value of the asset. iii. Problems: doesnt apply to indirect or sweat contributions. c. Constructive Trust i. Generally imposed if courts think that title to property is in the name of the party who doesnt deserve to keep that property, because they made fraudulent promises or misrepresentation. ii. Imposition will depend on what you can prove about what happened between two parties. If you can prove lying and misrepresentation, most likely all courts will impose trust. Where party hasnt made promises, very difficult to impose trust. iii. sweat equity: courts are less willing to compensate those who provide sweat equity. A significant factor may be what the person who has benefited told the other person. The court may establish a constructive trust in the case of fraud or misrepresentation . EX: can make an argument for unjust enrichment if the person relied on the promise. D promised P that if she (P) would sing for no compensation, then D would give her a share in the riverboat. P relied on Ds promise and sang without compensation. D failed to give P a share in the riverboat. Therefore, court may impose a constructive trust because of this misrepresentation. - Recovery for direct contribution and sweat equity is not based on the relationship itself. Recover because P agreed to work or contributed money; has nothing to do with the relationship. d. Quantum Meruit i. Payment for the reasonable value of household services rendered, less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward. e. A couple of jurisdictions reject these remedies completely. Most jurisdictions dont agree with all these remedies, but will provide relief in some circumstances. Marvin remedies, contrary to belief, do not resurrect common law marriage concept the relief is much broader in common law marriage. 2. The great majority of courts today allow cohabitants to make some kind of claim against the other when the relationship ends. a. Some courts have followed Marvin in extending express contract and equitable remedies to cohabitants. b. Other courts have held that express contracts are enforceable, but that equitable remedies are not available. 3. Connell v. Francisco (Wash. 1995) [CB 207] a. A meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist. Relevant factors establishing a meretricious relationship include, but are not limited to: i. continuous cohabitation, ii. duration of the relationship iii. purpose of the relationship; iv. pooling of resources and services for joint projects v. and the intent of the parties Page 8 of 56

ii.

b. Court ruled that until the legislature as a matter of public policy concluded meretricious relationships are the legal equivalent to marriages, the distribution of property following a meretricious relationship is limited to property that would have been characterized as community property had the parties been married.

4. KENTUCKY LAW
Glidewell v. Glidewell, Ky.App. 1990 (p32) a. When is a cohabitant entitled to a share of the property? b. Female cohabitants contributions in maintaining household was not to be considered in dividing property accumulated during cohabitation c. With respect to property which the cohabitants held as a joint venture or partnership, the parties were entitled to division of the equity in proportion to their contributions to the acquisition. d. When dividing property held by cohabitants, the court should divide the equity in proportion to the parties contribution to the acquisition of the property. a. Living with someone and providing household services is the weakest case for recovery in KY. b. Living with someone and contributes to an asset, can get money back. c. Living with someone and having an agreement to develop a motel, etc. this is the best case scenario for recovery. 5. Remedial Statutes a. Some states have remedial statutes. Example: pre-existing marriage, impediment is marriage. Impediment is removed, so 2nd marriage is seen as valid since the time of the removal of the impediment (Removal could be death, divorce). b. Basically, if there is a flaw, some remedial statutes will find flaw is not fatal. 6. Estoppel Doctrine a. In some jurisdictions, if theres a flawed marriage which one party entered into in good faith, the other party is estopped from disclaiming validity of marriage. b. To date, Kentucky has not accepted this doctrine. B. The Partners Rights and Duties in Relation to Third Persons 1. Most courts do not allow cohabitants recovery for loss of consortium and relationship injuries. 2. When an unmarried partner becomes ill or incapacitated, the other partner generally is not recognized as having the rights to make decisions on behalf of the incapacitated person that a spouse would have, or even to visit.

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ENTERING MARRIAGE

I. Formalities
A. Basic Requirements for entering marriage: 1. Eligibility (age, different gender, etc.) 2. Consent 3. Formalities (license, bloodwork, etc.) B. The formalities for marriage vary somewhat from state to state. 1. Ordinarily, the parties must secure a license. 2. One or both of the parties may be required to appear. 3. Many states impose a minimum waiting period between the issuance of the license and the marriage celebration, but this can often be waived under certain circumstances, such as the pregnancy of the bride to be; 4. A ceremony is also generally required in all states that do not recognize common law marriage; however, the form of ceremony is rarely specified and is usually left to the parties and the solemnizing official. C. Courts rarely invalidate marriages for failure to satisfy formal requirements. D. Void and Voidable Marriages 1. A voidable marriage has at least potential validity. It is valid unless its nullity has been declared. Moreover, the nullity of the voidable marriage ordinarily can be sought only during the lifetime of the marriage. 2. If, for example, the parties marry at 17 when the local law only permits marriages by persons who are 18 years or older. (However, the marriage can become a valid marriage, and if the parties never seek its annulment, the marriage will become valid when they continue to live as H and wife after reaching the age of consent.) 3. A void marriage in theory requires no declaration of invalidity. Moreover, the voidness of the marriage can be declared at any time, and generally, at the instance of any interested party. A void marriage can never become a valid marriage. E. KRS 402.005: Definition of Marriage Marriage refers only to the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex. F. KRS 402.020: Other Prohibited Marriages (1) Marriage is prohibited and void: (a) With a person who has been adjudged mentally disabled by the court; (b) Where there is a H or W living, from whom the person marrying has not been divorced; (c) When not solemnized or contracted in the presence of an authorized person or society; (d) Between members of the same sex; (e) Between more than two persons; and (f) Except as provided in paragraph (3), when at the time of the marriage, the person is under 16 years old. (2) Except in paragraph (3), when at the time of marriage, the person is under 18 but over 16, if the marriage is without the consent of: a-e, various consents of parents and custodians. (3) In case of pregnancy, the male and female, or either of them, may apply to a District Judge for permission to marry, which application may be granted in the form of a written court order, in the discretion of the judge. G. KRS 402.030: Courts May Declare Certain Marriages Void (1) Courts having general jurisdiction may declare void any marriage obtained by force or fraud. (2) At the instance of any next friend, courts may declare any marriage void where the person was under 18 but over 16 at the time of the marriage, and the marriage was without the consent required by KRS 402.020 and has not been ratified by cohabitation after that age. Page 10 of 56

(3) At the instance of any next friend, courts may declare void any marriage where: (a) the person was under 16 at time of marriage; (b) the marriage was not conducted with the permission of a District Judge, as required by 402.020(1)(f)3, in the form of a written court order. (c) The marriage has not been ratified by cohabitation after the person reached 18 years of age.

II. The Agreement to Marry


A. The Content of the Agreement 1. Has to be an agreement (have to intend to have H/W relationship) 2. Issue comes up a lot in immigration cases. B. Capacity to Agree 1. In determining capacity sufficient mental capacity to agree individual must understand what it means to get married, and the duties and responsibilities of marriage. C. Fraud and Duress 1. Most courts have restricted annulment for fraud to misrepresentations going to the essentials of marriage.

III. Substantive Restrictions on Marrying


A. The Constitutional Framework 1. Zablocki v. Redhail, U.S. 1978 (CB p260) a. Constitutionality of a WI statute which provides that members of a certain class of WI residents (those with a previous child support obligation) may not marry without first obtaining a court order granting permission to marry. b. Marriage is one of the basic civil rights of men, fundamental to existence and survival. It is part of the fundamental right to privacy implicit in eh 14th Amendment. c. Puts forth an analysis for restrictions upon marriage: Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. The individual challenging has burden of proving significant interference. If individual cant, state just has to prove it is reasonable. When an individual proves significant interference, the statute cannot be upheld unless it is supported by sufficiently important state interests and is closely related to effectuate those interests. 2. Loving v. Virginia (U.S. 1967) a. The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State. 3. Turner v. Safley (U.S. 1987) a. The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. B. Particular Restrictions 1. Monogamy a. Reynolds v. United States(US 1878) i. root case addressing the constitutionality of prohibitions against plural marriage. ii. Court said that there has never been a time in any state of the union when polygamy has not been an offense against society. It is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Page 11 of 56

2. Relationship a. Consanguinity statutes exist in one form or another in the majority of the states. b. In general, a consanguinity statute prohibits marriage between blood relatives in the lineal, or ascending and descending lines. c. All states prohibit marriages (and sexual relations) between persons closely related by blood. And all agree in prohibiting such relationships between parent and child, brother and sister, and grandparent and grandchild. Moreover, most states interpret these provisions in applying to persons related by the half as well as the whole blood. d. The relationships that do result in domestic relations litigation typically are those between first cousins, uncles and nieces, and aunts and nephews, as well as certain nonconsanguineous relations that is, between people related by marriage or affinity rather than blood. e. KRS 402.010: Degree of Relationship that will Bar Marriage (1) No marriage shall be contracted between persons who are nearer of kin to each other by consanguinity, whether of the whole or half-blood, than second cousins. (2) Marriages prohibited by subsection (1) of this section are incestuous and void. 3. Different Sexes a. No state law authorizes same sex marriages. b. KRS 402.045: Same-Sex Marriage In Another Jurisdiction Void and Unenforceable (1) A marriage between members of the same sex which occurs in another jurisdiction shall be void in Kentucky. (2) Any rights granted by virtue of the marriage, or its termination, shall be unenforceable in Kentucky courts. 4. Age

IV. Conflict of Laws


A. Recognition by one state of marriages contracted in another state is generally a matter of policy governed by principles of choice of law rather than matter of compulsion under the full faith and credit clause, unless the marriage has been the subject of a judicial proceeding (as through an annulment action or declaratory judgment proceeding. B. While there is no comprehensive definition of the state with the most significant relationship to the spouses and the marriage, it is generally agreed that a state where both parties were domiciled at the time of the marriage (wherever celebrated) would qualify, as would a state in which one of the spouses was domiciled and in which both spouses resided after the marriage. C. KRS 402.040: Marriage In Another State (1) If any resident of this state marries in another state, the marriage shall be valid here if valid in the state where solemnized, unless the marriages is against Kentucky public policy. (2) A marriage between members of the same sex is against Kentucky public policy and shall be subject to prohibitions established in KRS 402.045.

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FAULT DIVORCE

I. The Traditional Divorce System


A. Introduction 1. While annulment and separation were remedies available from courts for some considerable time, divorce in the sense we know it termination of the marital relationship was not available in England or the US until relatively recently. 2. Most of the southern colonies followed English law of the time and did not recognize judicial divorce. However, a number of northern colonies did permit judicial termination of marriages. 3. After the American Revolution, the northern states generally adopted laws providing for judicial divorce and, by 1800, every New England state and many mid-Atlantic states had done so. However, divorce remained rare or unknown in the southern states until after the Civil War. B. Fault Divorce 1. The fault system of divorce, reflecting disfavor of divorce except in extreme situations, was embodied in statutes articulating the grounds for divorce with more or less specificity. 2. Modern divorce statutes often include provisions resembling those incorporated in fault statutes, even when they also include no-fault grounds. As of 1994, 30 states retained traditional fault grounds for divorce. 3. Most Commonly Invoked Grounds for Divorce Under Fault System: a. Adultery i. Ordinarily is defined as voluntary sexual intercourse by a married person with a person who is not his or her spouse. Most jurisdictions cut off spousal support for cheating spouse, impacts who gets custody. ii. In the traditional view, homosexual relations were not defined as adulterous, but cases seem now inclined to treat them in the same way as extramarital heterosexual relations. iii. Adultery is rarely committed in the presence of others and must be proved by circumstantial evidence. The circumstances that give rise to an inference that adultery did occur include inclination and opportunity. b. Cruelty i. The older cases on cruelty required violence or at least intentionally and seriously injurious conduct that reasonably led to fear for life or health. ii. Over time, threats to mental as well as physical well-being came to be recognized, more or less generously. However, many courts, while extending the definition of cruelty, also expressed concern that the definition not be so broad as to reach mere incompatibility. iii. Some courts required proof of physical harm to support a divorce based on mental cruelty; some required expert evidence where the effect was emotional rather than physical. iv. Perhaps the most common form of cruelty may be called general marital unkindness. This includes a variety of forms of misconduct, including ridicule, harassment, and false accusations of unfaithfulness, child abuse, relative abuse, and the like. v. Evidentiary decisions by trial courts were often sustained if there was anything to support the trial judges decision. vi. Cruel and inhuman treatment requires a course of conduct which is harmful to the physical or mental health of the plaintiff, making cohabitation unsafe or improper, and when the marriage is of long duration a high degree of proof of serious or substantial misconduct. Page 13 of 56

c. Desertion/Abandonment i. Elements: Voluntary Desertion; without consent of other spouse; without justification; without intent to resume marital cohabitation. ii. Sometimes called abandonment and often described as willful desertion, requires departure from the home without the consent of the other and without justification. If there has been consent, there is no martial wrong and therefore no abandonment. Generally, failures to object and offers to reconcile may constitute evidence of consent. iii. Justification for departure: A. The strictest view is that departure is only justified when the abandoned spouse has engaged in conduct that would itself provide grounds for divorce. B. Other jurisdictions view justification more broadly to include conduct that in some way makes cohabitation impossible. iv. Many statutes specify a minimum period, ordinarily between 1 and 5 years, and the period must usually be continuous. v. Some cases recognize constructive abandonment where one spouses activities force other spouse to leave (i.e., beating them) d. Impotence e. Insanity i. Both grounds and defense of divorce ii. Very restricted ii. Kentucky and other jurisdictions have retained insanity as grounds for divorce.

4. Defenses to Divorce:
a. Ordinarily these are treated as affirmative defenses that must be specifically pleaded and proved. b. Insanity i. Generally recognized as a defense to divorce actions founded on adultery and desertion. ii. Not a defense in Kentucky. c. Connivance i. Where the spouses agree to the conduct asserted as grounds for divorce. Also occurs where one spouse tries to entrap the other. ii. In particular circumstances, it may appear that either the conduct was not in fact wrongful as to the petitioning spouse or cannot be said to have destroyed the marriage. iii. One set of circumstances where misconduct otherwise justifying divorce may not suffice arises when the offending conduct was in fact agreed to (connived at) by the spouse now seeking the divorce. iv. Defense is almost entirely limited to adultery. v. It has been held connivance where the petitioning spouse simply does not care whether adultery occurs, although he or she does not consent to any such act. d. Condonation i. Defense to most grounds of divorce, although its application to cruelty is somewhat unclear. ii. Condonation occurs when the injured spouse, knowing of a marital wrong, continues or resumes marital cohabitation. Essence of the defense is said to be forgiveness; the state of mind may be inferred from resumption of marital relations. iii. Among the many factors for the trial court to consider are whether the reconciliation and any cohabitation were entered into in good faith, Page 14 of 56

whether it was at all successful, who initiated it and with what motivation. iv. Condonation is conditional: it is forgiveness conditioned on the absence of future wrongdoing. An offense, once condoned, may be revived if the offending spouse does not treat the condoning spouse properly. e. Recrimination i. Where both parties are guilty of marital misconduct results in no divorce. ii. Mostly abolished today. iii. Some jurisdictions do not recognize recrimination as a bar to divorce but instead look to comparative rectitude when both spouses have committed marital fault. f. Provocation i. Occurs where one spouse causes another to take actions constituting grounds for divorce. 5. The Bar of Collusion a. The doctrine of collusion is often listed as a defense, but in some sense it is a special doctrine. i. Unlike the other defenses, collusion need not be pleaded or proved. It is ordinarily raised by the court sua sponte. ii. Also the clearest evidence of a public interest in the control of marital dissolution. b. This bar arises from an agreement between the parties to frustrate the divorce procedure in some way. It may take the form of an agreement to create the appearance of marital wrongdoing when none has in fact occurred. Ex: Supplying fictitious evidence of adultery. c. Collusion is difficult to identify, since neither party has any interest in its detection.

II. Divorce Procedure Under the Fault System


A. Judicial divorce procedure varied substantially during the 19th century. Divorce proceedings were generally governed by special rules. Unwillingness of courts to follow the generally applicable principle that the parties themselves decide whether and how they will conduct a legal dispute. B. The circumstances under which a marriage ended were specifically defined by statute and afforded relief only in extreme cases. Those statutes required not only that one spouse have committed particular forms of marital misconduct but also that the plaintiff not have connived at or condoned the offense and be himself or herself innocent of marital wrongdoing. C. Various other rules also expressed the states reluctance to end a marriage and suspicion of suits to do so. Courts were often authorized to consider affirmative defenses such as condonation and recrimination even if the defendant did not raise that bar. D. Courts adopted various strategies to delay proceedings in the hope of reconciliation 1. Interlocutory Decree (decree was not final; the parties remained married to each other and were not expected to live apart) 2. Cooling Off Periods 3. Conciliation procedures providing counseling for parties.

Kentucky: Traditional Kentucky Divorce Statute (See When Harry Met


Sally, Assignment #2, Page 4-5)

DOMESTIC VIOLENCE
I. There are special procedures and protections available KRS 403.720 Example is restraining order
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MODERN GROUNDS FOR DIVORCE


I. The Adoption of No-Fault Divorce
A. Adopted in about 1/3 of the states. INCLUDING KENTUCKY B. Under no-fault systems, the traditional grounds for divorce have been abolished and replaced with some variation of the irretrievably broken standard. C. Uniform Marriage and Divorce Act 302: Dissolution of Marriage (Page 340-341). D. Incompatibility: Only works if other party agrees or doesnt deny it. If spouse opposes, claiming parties are compatible, than this ground is thrown out. E. Dissolution 1. Very popular 2. Conditions that must be satisfied in order to get a dissolution: a. Residency b. Petition signed by both parties (no complaint) c. Comprehensive separation agreement (dealing with all the issues), including shared parenting plan. d. Parties go before judge after set waiting period for a personal appearance. 3. What factors should be considered in deciding between dissolution and divorce: a. Advantages: i. Leaves all decisions up to parties ii. Quicker, less costly, perhaps more amicable. b. Disadvantages: i. If you cant agree on every element, you cant get a dissolution. ii. Used commonly where there are no kids, small amount of property and assets to be separated. 4. Divorce is brought about by judicial order. Dissolution is based on agreement by parties. This can cause potential problems if some fraud has been committed by one of the parties to the agreement.

II. Kentucky Law


A. Statutes 1. KRS 403.140: Marriage; Court May Enter Decree of Dissolution or Separation (Page 20) (1) The Court shall enter a decree of dissolution of marriage if: (a) Court finds that one of the parties, at the time of the action, resided in the state, or was stationed in the state while in the armed forces (for over 180 days) (b) Court finds that the reconciliation provisions of KRS 403.170 dont apply or are not met; {c} Marriage is irretrievably broken; and (d) The Court has considered, approved, or made provisions for child custody, child support, spousal support, and disposition of property. 2. KRS 403.150: Procedure; Commencement of Action, Pleadings, Abolition of Existing Defenses (Page 20) (5) previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, recrimination, insanity, and lapse of time, are abolished. 5. KRS 403.170: Marriage; Irretrievable Breakdown (Page 22) (1) if both parties have stated that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the ct shall have a hearing and make a finding whether the marriage is irretrievably broken. No decree shall be entered until the parties have lived apart for 60 days(includes living under same roof w/o sexual relations) Page 16 of 56

(2) If one of the parties has denied that the marriage is irretrievably broken, the ct shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation and shall (a) make a finding whether the marriage is irret. Broken or (b) continue the matter for further hearing and may suggest that the parties seek counseling. The ct may order a conciliation conference at the request of either party or on its motion. (3) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation. B. Cases 1. Laffosse v. Laffosse, 564 S.W.2d 220 (Ky.App. 1978) a. Generally, determination whether a marriage is irretrievably broken is a judicial function based on evidence in the case. b. If trial court clearly errs by finding that marriage was not irretrievably broken, finding may be set aside and dissolution of the marriage will be required.

III. Divorce Procedure in No-Fault Dissolutions


A. Access to Divorce 1. Most courts reject a general right to counsel in divorce cases. 2. However, some statutes expressly permit courts to appoint counsel for parties in divorce matters as an exercise of discretion. B. The Posture of No-Fault Divorce Procedure 1. Traditional fault-based divorce procedure not only assumed but required he parties to adopt an adversarial posture. 2. Most modern statues include fault grounds (together with no-fault bases). 3. When divorce is sought on fault grounds, the posture of divorce procedures remains substantially adversarial. Most divorces now rest, however, on no-fault grounds, and the question arises whether recognizing divorces on those grounds implies the elimination or reduction of public interest in the outcomes of divorce proceedings. 4. Section 302 of the Uniform Marriage and Divorce Act requires a court to make several findings as a condition of entering a decree of dissolution, including a finding that the marriage is irretrievably broken. 5. Many state statutes also expressly require hearings in all divorce cases. The requirement of a hearing does not, however, imply a lengthy hearing. 6. Several states have adopted summary dissolution procedures. a. Often restricted to marriages with no minor children. b. Typically dispense with any requirement of a hearing as long as the parties have agreed to the distribution of any marital property and abandoned spousal maintenance claims.

IV. Evaluating Divorce Reform


A. Supporters of Divorce Reform: 1. Greater happiness or satisfaction for members of the divorcing family. 2. Ending a troubled marriage would ease the situation of children in homes where the marital relationship had broken down by removing them from conflict between their parents. B. Counter-Revolutionary Movement

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1. Legislators in a number of states have proposed bills to reintroduce fault grounds or lengthier waiting periods, or both, either generally or where only one spouse seeks divorce. 2. Rest on beliefs that no-fault divorce has led to escalating divorce rates, the disintegration of families, and harm to children who will be raised in single-parent households. 3. At least two states have adopted a relatively small step in this direction: the creation of covenant marriage. a. Louisiana: allows parties to choose between regular marriage, allowing no-fault divorce if the parties have lived separate and apart for 180 days, and covenant marriage, in which the parties formally agree that a covenant marriage is for life. b. Parties to a covenant marriage are exempted from the generally applicable divorce provisions, and agree to seek dissolution only when there has been a complete and total breach of the marital covenant commitment.

ADDITIONS AND ALTERNATIVES TO DIVORCE ACTIONS


I. Seeking a Domestic Violence Protection Order
A. Crimes Between Spouses 1. A number of legislatures and courts have abandoned the traditional view that a wife cannot be raped by her husband, doing away with the marital exemption to rape. 2. The Model Penal Code, however, retained the spousal exemption for rape and indeed, extended it to persons living as man and wife, regardless of the legal status of their relationship. 3. The most widely used judicial response to domestic violence is the protective order. 4. Protective orders are civil orders restraining the offender from conduct that endangers the person seeking the order. 5. While their application to married persons is now largely uncontroversial, availability of a protective order to cohabitants may vary. Only a dozen jurisdictions extend protection to persons in a dating relationship 6. Emergency protective orders can ordinarily be issued ex parte in cases of immediate danger of domestic violence and may include provisions excluding the respondent from entering the petitioners home and any other appropriate relief. When an emergency order is entered, a hearing must be held within some reasonably brief time period (usually 5-10 days). B. Kentucky Law 1. KRS 403.700-403.785 (Pages 52-73). 2. To get a domestic violence protection order, one must show physical violence to married spouse, or relative of unmarried couple, or family member.

II. Spousal Tort Liability


A. Burns v. Burns, 518 So.2d 1205 (Miss. 1988) [CB p139] 1. Many states have abrogated the interspousal immunity doctrine because the reasons for the common law rule no longer exist. 2. Three traditional reasons for justifying the doctrine: a. The legal unity of the husband and wife recognized at common law; b. The promotion of peace and harmony in the home; and c. The avoidance of fraudulent or collusive claims. B. Spousal Testimony 1. Incapacity of one spouse to testify for or against the other. 2. The ban on testimony for the party-spouse was a disqualification based on interest, and an extension of the general common law rule barring parties (and anyone with a direct pecuniary interest in the outcome) from testifying in their own

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behalf. This disqualification has uniformly been eliminated for parties and for their spouses as well. 3. The rule concerning testimony against a spouse has been retained, although sometimes with a more modern justification and in a somewhat different form. a. The rule barring the testimony of one spouse against the other unless both consent persists in a number of states. 4. Even jurisdictions that have abandoned the husband-wife privilege recognize a privilege of more limited scope. a. This privilege does not reach all evidence one spouse may be able to give against the other but only confidential communications between spouses that is, information privately disclosed between husband and wife in the confidence of the marital relationship. 5. Neither the spousal privilege nor the privilege for confidential marital communications typically applies to suits by one spouse against another, to prosecutions for a crime against the other, or in cases of child abuse. The scope of these exceptions to the privilege varies, however. 6. The husband-wife privilege is generally said to terminate when the marriage ends by death or divorce. C. Kentucky Law 1. Whittington v. Whittington, Ky.App., 766 S.W.2d 73 (1989)[p26]: a. Wife sued husband for tort of outrageous conduct causing severe emotional distress. Court held that alleged adultery and fraud of husband did not reach the level of outrageousness as necessary for tort liability.

III. Seeking An Annulment Instead of a Divorce


A. In certain situations, you may have the option of having the marriage annulled or declared invalid: the parties werent eligible, no consent, parties didnt meet formalities, etc. B. KRS 402.010: Degree of Relationship that will Bar Marriage (p7) C. KRS 402.020: Other Prohibited Marriages (p7) D. KRS 402.030: Courts May Declare Certain Marriages Void (p8)

THE LAWYERS ROLE IN THE DIVORCE PROCESS


I. Creating the Lawyer-Client Relationship
A. A number of decisions, and some current ethics opinions, take the position which prohibits one lawyer from representing both parties in matrimonial cases. B. The American Academy of matrimonial Lawyers Standards of Conduct: An attorney should not represent both husband and wife even if they do not wish to obtain independent representation. C. Where divorcing spouses cannot afford independent representation and a lawyer or legal services office will not represent both, it often happens that the lawyer represents one spouse and the other goes unrepresented. Poses concerns for fairness and reaching a negotiated resolution. D. Kentucky permits representation of both parties to a divorce. E. Fee Arrangements 1. Most courts take the view that contingent fees are not allowed in domestic relations cases. 2. Reasons for the traditional disapproval of contingent fee contracts: a. Public policy favoring marriage; b. Disapproval of giving attorneys a financial incentive to promote divorce; c. The statutory availability of attorney fee awards making contingent fees unnecessary;

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d. The potential for overreaching or undue influence in a highly emotional situation; and e. A need for the court to make an informed distribution of property which includes the obligation of attorney fees. 3. Rule 1.5(d)(1) of Model Rules also prohibits any fee in a domestic relations matter, the payment of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof. 4. There has been some attrition from the general view that contingent fees are never proper in divorce cases. Over the last two or three decades, a number of decisions have permitted some form of contingent fee, particularly when dissolution has already occurred or the basis for the divorce is noncontroversial.

II. Counseling and Client Relations


A. Rule 1.2(a) of Model Rules: A lawyer shall abide by a clients decision concerning the objectives of representation, and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by the clients decision whether to accept an offer of settlement of a matter. B. The lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. C. If, after advising the client, the lawyer is profoundly dissatisfied with the clients position, he or she may withdraw if that can be accomplished without material adverse effect on the clients interests or if, among other things, the client insists on an illegal course of action or one that the lawyer considers repugnant or imprudent.

III. Alternative Dispute Resolution


A. Negotiation 1. In divorce, perhaps unlike in many other areas, much of the negotiating is done by the parties themselves. Moreover, the participation of clients in negotiating with each other and with their lawyers may be profoundly affected by the emotional context of the divorce. B. Arbitration 1. The distinctive feature of arbitration is its binding character. Arbitrators, unlike mediators, are employed to resolve disputes rather than to facilitate resolution by the parties. C. Mediation 1. Mediation has commanded wide support as the preferred method of ADR for divorce especially child custody issues. 2. Several states either require or encourage mediation as a precursor or adjunct to judicial proceedings.

IV. Kentucky Law


A. Burke v. Sexton, Ky.App., 814 S.W.2d 290 (1991) [p59] 1. The terms of a separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties that the agreement is unconscionable. B. Shraberg v. Shraberg, Ky., 929 S.W.2d 330 (1997) [p137] 1. Statute governing separation agreement establishes measure of protection for spouses from their irresponsible agreements. 2. Separation agreement is unconscionable and must be set aside if it is manifestly unfair and unreasonable, regardless of whether overbreadth, undue influence, and overreaching provide separate grounds for setting agreement aside.

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3. Upon determining that marital settlement agreement is unconscionable, trial court was not required to effectuate parties agreement to the greatest possible extent, but rather, could decide the case as if there had been no agreement at all.

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ECONOMIC CONSEQUENCES OF DIVORCE; PROPERTY DIVISION AND SPOUSAL SUPPORT


I. Overview A. Historical Justifications of and Criteria for Economic Awards 1. Property was supposed to have been awarded to the spouse who owned it during marriage, and support orders carried the entire burden of providing for dependent women and children. 2. The fault theory of divorce shaped the availability of support, for a wife found at fault was not entitled to alimony and was likely to lose custody of the children. 3. Commonly believed that equitable distribution arose in common law property states only in the latter half of the 20th century, and that community property states do not permit equitable distribution. In fact, a few common law property states have provided for equitable distribution since the 19th century. 4. By the early 20th century, statutes in all the community property states except Louisiana empowered divorce courts to divide community property equitably. 5. The demise of the fault-based system did generate a conceptual crisis for spousal support and property division orders by eliminating or limiting the effect of a finding of fault on the division of economic resources. B. Economic Orders in the No-Fault Era 1. Propositions from Divorce Reform: a. Judicial decrees should end, as far as possible, all personal and economic ties between the spouses. b. The abandonment of fault grounds, coupled with the emerging emphasis on gender equality, implied that both spouses should become equal and independent social and economic actors after divorce and that neither spouse should be especially burdened by the divorce decree. 2. Legislatures and courts came to regard assets acquired during marriage as the result of the contributions of both spouses. C. Criticism of No-Fault Economics 1. Less than 10 years after the beginning of the no-fault revolution, critics began to argue that the revolution had caused unprecedented economic disaster for the women and children of divorce. A. Overview 1. There are three basic systems for property division at divorce (A key variable that distinguishes these three systems is the amount of discretion available to the judge): a. Title-Based Distribution i. Courts have little or no express discretion over property division, for the governing principle is that property is awarded to the spouses as they owned it during the marriage. ii. In a common law property jurisdiction using a pure title system, the spouse in whose name property was titled would receive it at divorce, subject to any claims of the other spouse based on equitable ownership principles. iii. A court in a community property jurisdiction using a pure title system would award separate property to the owner and divide the community property equally. iv. Today, no common law property state relies on title-based distribution. It is used in limited form in CA, LA, and NM, the three community property states that mandate equal division of community property with very few exceptions and require that separate property be awarded to the spouse who owned it during marriage. b. Pure Equitable Distribution Page 22 of 56

II. Property Division at Divorce

i. Judge has discretion to divide all the property of both spouses as is just and proper or through some equivalent formula. ii. In a state that mandates equitable distribution of all property, which spouse owned property legally or equitably during marriage may be relevant but is not determinative of who will get it at divorce. c. Marital Property Systems i. Gives judges more discretion over property division than does the title system, but less than an equitable distribution system, and it has become the system most commonly used in this country. ii. In most of the community property states, equitable rather than equal division of community property is mandated, and these states also permit equitable distribution of separate property under limited circumstances. iii. Most common law property states have gone to a form of deferred marital property as long as the marriage lasts, each spouse owns and manages assets that he or she brings into or acquires during the marriage. But when the marriage ends, the assets are shared as if they had been acquired in a community property state. 2. Most common law property states now divide property into marital and nonmarital shares and allow only the former to be distributed at divorce. The draft of the ALI Principles of the Law of Family Dissolution also recommends this system, with the notable exception that in long-term marriages separate property gradually is converted into marital (and hence divisible) property. 3. Courts in common law property states have generally held that a statute providing for equitable distribution of property at divorce does not violate due process, even though it permits a court to award one spouse property that was owned by the other spouse during the marriage. 4. Mechanics of Property Division a. Find property i. first determine what qualifies as property subject to division b. Value property i. Important to value both marital & separate property ii. No one method court is required to use as long as its reasonable. c. Characterization of property as marital or separate i. Property will remain separate property so long as it can be traced to property held before marriage and to which no marital funds are contributed. d. Factor in debts e. Make equitable distribution case f. Divide specific assets. B. KENTUCKY LAW

How to handle a problem a. find assets b. value the assets(FMV, or expert testimony) c. characterize as marital or nonmarital property d. equitable distribution
1. KRS 403.110: Purpose of Chapter [p18] 2. KRS 403.190: Disposition of Property [p24] (1) In a proceedingthe court shall assign each spouses property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including: (a) Contribution of each spouse to acquisition of marital property, including contribution of a spouse as homemaker; Page 23 of 56

(b) Value of the property set apart to each spouse;(amount of separate property each spouse has)(if one has way more it will be factor) {c} Duration of the marriage; and(longer the more financially weaker party has claim to bigger share) (d) Economic circumstances of each spouse when the division of property is to become effective (income capacity)(Including desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of the kids). OTHER FACTORS TO CONSIDER ARE OHIO St. 3105.17(4,5,6,7) (2) Marital property means all property acquired by either spouse after the marriage except: (a) Property acquired by gift, bequest, devise, descent during the marriage and income derived therefrom unless there are significant contributions by either spouse to the increase in the propertys value. (b) Property acquired in exchange for separate property; {c} Property acquired by a spouse after a decree of legal separation; (d) Property excluded by valid agreement of the parties; and (e) The increase in value of property(by either party) acquired before the marriage to the extent that such increase did not result from the effort of the parties during marriage. Transmutation- where right before married sign prenup and place property that was separate to both names.(MAKE ARGUMENT) (3) All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownershipThe presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2). (4) Deals with Retirement Benefits 3. Brandenburg v. Brandenburg, Ky.App. (1981) [p12]: a. In determining an apportionment between marital and nonmarital property, there is to be established a relationship between the nonmarital contribution and the total contribution, and between the marital contribution and the total contribution; such relationships, reduced to percentages, shall be multiplied by the equity in the property at the time of distribution to establish the value of nonmarital and marital properties. Pro rata approach Only allows monetary contribution to property equity, not payments on interest etc. of mortgage. Sweat equity cant be included either. Only applies really to situations where property is purchased before the marriage and then after the marriage, marital funds are used to make payments on the property. b. FORMULA: NMC/TC x Equity = non-marital property MC/TC x Equity = marital property c. Non-Marital Contribution: i. Equity in the property at the time of the marriage, PLUS ii. Any amount expended after marriage by either spouse from traceable nonmarital funds in the reduction of mortgage principal, and/or the value of improvements made to the property from such nonmarital funds. d. Marital Contribution: i. Amount expended after marriage from other than nonmarital funds in the reduction of mortgage principal, PLUS Page 24 of 56

ii. The value of all improvements made to the property after marriage from other than nonmarital funds. e. Total Contribution: Sum of non-marital and marital contributions f. Equity: i. The Equity in the property at the time of distribution ii. This may be either at the date of the decree of dissolution, or, if the property has been sold prior thereto and the proceeds may be properly traced, then the date of the sale shall be at the time at which the equity is computed. 4. Chenault v. Chenault, Ky. (1990) [p52] a. Statutory presumption exists that all property acquired during marriage is marital property; however, presumption may be overcome by proof that property was acquired in exchange for property acquired before marriage or in exchange for property acquired by gift, bequest, devise or descent. b. Nonmarital assets must be traced into assets owned at time of dissolution; however, party undertaking to prove nonmarital character of property need not do so by documentary evidence and with mathematical precision, especially when owner does not have business skills. 5. Dotson v. Dotson, Ky. (1993) [p104] a. Income produced from wifes nonmarital property was marital property for purposes of disposition upon dissolution of property. 6. Travis v. Travis, Ky. (2001) [p214] (puts Brandenburg in doubt)(argue Brandenburg when have formula type situation) a. In dissolution actions, trial courts division of parties property requires three-step process: (1) trial court first characterizes each item of property as marital or nonmarital; (2) trial court then assigns each partys nonmarital property to that party; and (3) finally, trial court equitably divides marital property between parties. b. Item of property will often consist of both nonmarital and marital components and when this occurs, trial court must determine divorcing parties separate nonmarital and marital shares or interests in property on basis of evidence before court. c. Source of funds rule means that character of property, i.e., whether it is marital, nonmarital, or both, is determined in dissolution of marriage proceeding by source of funds used to acquire property. d. When property acquired during marriage includes increase in value of asset containing both marital and nonmarital components, trial courts must determine from evidence why increase in value occurred; where value of nonmarital property increases after marriage due to general economic conditions, such increase is not marital property, but opposite is true when increase in value is result of joint efforts of parties. e. Divorcing party asserting that he should receive appreciation upon nonmarital contribution as his nonmarital property carries burden of proving portion of increase in value attributable to nonmarital contribution(natural increase); failure to do so will result in increase being characterized as marital property. f. Sweat equity can be taken into account in determining marital property 7. Terwilliger v. Terwilliger, Ky. (2002) [p228] a. Property set aside by the trial court as husbands separate property in divorce action was marital property subject to division between the parties; husband could not adequately trace the funds to a separate property source, and husband Page 25 of 56

was an experienced businessman who was expected to have maintained detailed and accurate records of where the assets came from. b. The presumption in KY is that all property acquired during the course of the marriage is marital property, unless the property can be shown to have originated in one of the excepted ways outlined in the disposition of property statute. General KY Rules Property acquired before marriage considered separate except when: a. intentional transmutation-turning it into marital property b. mingling to where you cant trace them back c. mingling in value due to active marital funds to improve property or sweat equity by either party Property acquired after marriage considered marital except: a. inheritance or gift b. acquired in exchange for separate property c. passive increase in value d. property excluded by agreement e. property acquired after legal separation C. The Meaning of Equitable Distribution 1. Equitable distribution statutes vary considerably in form but little in substance. a. Some, like UMDA 307, contain lists of factors that judges must consider, while others do not. b. Appellate courts often interpret the latter kind of statute as requiring consideration of factors similar to those contained in the statutory lists. c. All statutes give judges substantial discretion. Lists of factors do not provide much structure, for they do not tell judges what weight or priority to give to the factors. What these statutes do, then, is grant judges discretion without providing either governing principals or ultimate goals. d. Judges will probably adopt some framework within which to make decisions. Legislatures and courts are developing principles for property division. 2. Modern property division law seeks to minimize post-divorce contacts between the spouses. 3. Much of the reform in property division law in the last two decades has focused on how to deal with couples in which one partner, usually the woman, stayed out of the labor market to work as a homemaker. a. An important reason that common law property states moved to equitable division of property at divorce was a changed understanding of fairness to homemakers. b. Community property and presumptions in favor of equal division can be understood as eliminating the difficulties of quantifying contributions by valuing the contributions of homemakers as equal to those of income producers. 4. Approximately of state statutes list marital fault as a factor that may be considered in property division, and another explicitly exclude marital misconduct as a factor. The others either call simply for equitable distribution or for equitable distribution with lists of factors that do not include language clearly connoting fault. Most courts today exclude marital fault as a factor in property division, and even where fault can be considered, courts often relegate it to a minor role. 5. In more than half the states economic misconduct is a factor in property division. a. Under statues that do not address fault but include lists of factors, courts sometimes justify the consideration of economic fault on the basis that it pertains to the parties contributions to the acquisition or dissipation of assets. Page 26 of 56

D Characterization of Property as Separate or Marital 1. Statues and case law generally provide that separate property includes: a. Property owned by either spouse before marriage, b. Property acquired by a spouse after the marriage by gift or inheritance, and c. Property acquired after the marriage in exchange for separate property. 2. Many state statutes create a presumption that all property acquired during the marriage is marital.

3. Transmutation a. In most states that have addressed the issue, the owner of property may change or transmute its character by a voluntary act manifesting this intent. b. Marital or community property can be transmuted into the separate property of one or both spouses, and separate property of one spouse can be transmuted into marital or community property or separate property of the other spouse. c. The most common transmutation issue is whether a change in how an asset is titled changes its character. i. Some courts have held that a change in title automatically transmutes property. ii. Most courts say that transmutation is presumed. iii. Finally, some courts say that a change in title does not create a presumption in favor of transmutation but that intent to transmute may be proven by this and other evidence. d. Transmutation problems can also arise when one spouse buys a gift for the other with separate or marital funds. 4. Appreciation of Separate Property a. In many of the common law property states increases in value caused by market or other passive forces are allocated proportionately according to the contributions of separate and marital funds. b. Under this source of funds rule, increases in the value of separate property attributable to marital funds or efforts are marital property, and increases attributable to market changes and the like are separate in some states and marital in others. c. The ALI Family Dissolution Principles provide that the increase in value of separate property is marital if attributable to a spouses labor and separate if due to their causes. 5. Income Produced by Marital Property a. In all states income produced by marital property rents, dividends, interest, and the like is also marital property. The states are divided, though, in their treatment of income from separate property. Equitable distribution statutes that address this issue usually say that income from nonmarital property is nonmarital. 6. Tracing a. Separate property may be mixed with marital property intentionally or unintentionally. b. In a few states, property cannot be partly separate and partly marital; in these states, commingling separate property with marital property automatically converts the separate property into marital property. c. In most states, though, it is legally possible to trace separate funds in and out of bank accounts and other property. d. Ordinarily, the spouse who claims to own separate property carries the burden of tracing the funds. If the spouse cannot carry this burden, commingled property will be entirely marital. Page 27 of 56

7. Property acquired during premarital cohabitation is generally not treated as marital property when the parties divorce. However, some courts have held that property acquired in anticipation of marriage is marital property. 8. A number of legislatures and courts have considered when a marriage ends for purposes of defining marital property. The possibilities include: a. The date of separation. b. The date the petition for dissolution was filed. c. The date the decree is entered. 9. Most jurisdictions appear to value assets as of the date of judgment of divorce, though courts in some states have said that the date of valuation is to be decided case by case. E Choice-of-Law Issues 1. When spouses acquire property in one state but are divorced in another, choice of law problems may arise. 2. Under traditional choice-of-law principles, the court in eh community property state will apply its own law to determine what property is subject to division, but it will apply the law of the state where the property was acquired to determine whether it is marital or separate property. 3. Legislatures in some community property states have enacted quasi-community property statues a. These provide that if property would have been community property had it been acquired in the state, it is treated as community property for purposes of property division at divorce. b. In the absence of such legislation, courts in some community property states have solved the problem by applying the substantive property division law of the state in which the property was acquired. 4. Issues may arise if spouses acquire property in a community property state and are divorce din a common law property/equitable distribution state. 5. Courts in most common law property states have held that the states own laws governing characterization as well as division should apply, which eliminates problems of relating inconsistent laws of different jurisdictions.

F. Dividing Debts
1. Even though many property division statutes do not address division of debts, most courts have assumed that they have authority to allocate responsibility for paying debts. 2. Among the methods discussed in the case law for dividing debts are these: a. Equitable Division of All i. Treat as distinct issues the division of assets and the division of debts, dividing each equitably. i. Relevant factors include the ability to pay, which spouse was the principal financial manager or incurred the debt, etc. ii. Treat assets and debts separately and make two equitable distributions. b. Divide debts proportionately to division of assets i. Treat division of assets and debts as distinct issues but allocate responsibility for debts in the same proportion that assets are awarded. ii. Makes since if equally well off and dividing debts fifty fifty c. Total Netting Out iii. From the total value of the divisible assets subtract the total amount of divisible assets. Divide the remainder (if any). iv. Before you divide up the assets you pay all debts d. Netting Out of Specific Assets i. When an asset is specifically encumbered, value the asset at the difference between its market value and the debt. (house Page 28 of 56

worth 200,000 and mortgage of 100,000= give them value of 100,000) ii. Simply b/c agreement made that mortgage will be paid by other party doesnt mean bank or creditor of mortgage can reach other person if they default on mortgage. 3. In most states that permit division only of marital property, only marital debts are divisible at divorce. Separate debts are the responsibility of the spouse who incurred them. However, courts that allocate marital debts on an equitable basis may take separate debts into account in determining ability to pay. 4. Ordinarily a debt is marital if it was incurred for the joint benefit of the parties or in acquiring a marital asset. Some courts have applied this test to characterize debts incurred during periods of separation as marital if they were incurred to pay family living expenses.

III. Spousal Support at Divorce


A. Changing Attitudes Toward Spousal Support in the No-Fault Era 1. Consistent with the modern preference for ending spousal obligations at divorce, the law in most states during the 1960s and 1970s disfavored awards of spousal support. When awarded, the spousal support was supposed to facilitate the economic independence of the spouses from each other. During the 1970s and early 1980s a number of legislatures enacted statutes limiting the duration of spousal support awards. 2. During the 1980s, however, sentiment began to shift again as the divorce rate rose and the poor economic position of divorced women and their children became more widely known. Some legislatures and courts have rejected a preference for limited-term awards or have even created a preference for indefinite awards in some circumstances. This continues to be controversial. B. Applying the Changing Views

1. The Uniform Marriage and Divorce Act


a. Was drafted early in the no-fault era, and it tends to reflect the clean break perspective that disfavors spousal support. However, it also contains seeds of change: b. 308(a): Court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance (1) lacks sufficient property to provide for his reasonable needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. c. 308(b): Maintenance order shall be in amounts and for periods of time the court deems just, without regard to marital misconduct, and after considering all relevant factors including: (1) the financial resources of the party seeking maintenance and his ability to meet his needs independently (2) time necessary to acquire sufficient education or training to find appropriate employment (3) standard of living during marriage (4) age and physical/emotional condition of spouse seeking maintenance, and (6) ability of spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. d. The UMDAs preference for using property division, rather than spousal support, as the primary vehicle for financial settlement between spouses furthers the goal of providing the parties with a clean break. 2. How do courts measure need? Typically the parties submit detailed budgets to prove their needs. Page 29 of 56

3. In some states limited-term support awards may be modified if a spouse is not able to become self-supporting at the end of the support period. In other states limited-term alimony is not modifiable. 4. Fault a. In the era of fault-based divorce a wifes misconduct could either bar her from receiving alimony or limit the amount, and in some places the husbands fault could be a factor in increasing the amount. b. In almost half the states today marital fault is a factor in determining spousal support. c. In a few jurisdictions a person against whom a fault-based divorce is awarded cannot be awarded support, and in some others fault is a factor that courts may consider. 5. Even if general fault is not a factor, economic misconduct may be. Some statutes explicitly include the latter as a factor.

C. Spousal Support for the Care giving Parent?


1. UMDA 308(a)(2) provides that a caretaker of children may be eligible for spousal support even though she or he is otherwise capable of self-support, and many cases have held that custodial parents of young children should receive spousal support to enable them to remain at home with the children. 2. When spousal support is awarded because the recipient has custody of the kids, it usually terminates at the latest when the youngest child attains the age of majority.

D. Modification and Termination of Support


1. Foreseeable Changes in Circumstances a. Traditionally and still today in most jurisdictions, support duties terminate at the death of the obligor or the recipient. However, in a number of states a court may order the obligors estate to continue to pay spousal support, or the parties may agree in writing to such an extension. b. In a few states, statutes or case law permit child support liability to be imposed on a parents estate under some circumstances. c. The traditional rule is that, unlike property awards, spousal and child support are modifiable upon a showing of a substantial or material change in circumstances. This phrase gives judges considerable discretion to alter previously established support obligations. d. UMDA 316 provides that to be a ground for modifying a spousal or child support order, a change of circumstances must be so substantial and continuing as to be unconscionable. e. Sometimes courts deal with the tension between stability and flexibility by saying that change that was foreseeable is not a ground for modification. i. However, many changes that are widely regarded as sufficient for modifying a support order, such as the increased cost of supporting children as they mature, are also entirely foreseeable. 2. Voluntary versus Involuntary Decreases in the Payors Income a. A decrease in an obligors ability to pay is a commonly asserted ground for modifying support. b. Involuntary decreases, such as when the obligor is laid off from work, are generally treated as a sufficient reason to decrease support. Courts are not so tolerant of voluntary reductions in income. c. Deegan v. Deegan (N.J. 1992) [p619]: Court notes cases from other states addressing elective retirement can be broadly characterized as falling into several different categories:

Page 30 of 56

i. Bright Line Category: the voluntariness of the change in circumstances, in itself, is viewed as barring an application for modification. ii. Second category based upon the motives of the party seeking to make the change. If change made in good faith, the application for modification is approved. If in bad faith (desire to reduce alimony) will be disapproved as a basis for modification. iii. Sole Purpose: If the sole motivation for the change is to avoid support obligations, good faith is absent. iv. Cases in which any negative impact on the payee spouse is considered sufficient to bar modification based upon voluntary retirement. 3. New Families Spousal Support, Remarriage, and Cohabitation a. Traditionally, alimony terminated when the recipient remarried because her new spouses support duty replaced the former spouses support obligation. b. First look to object granting support divorce decree or separation agreement. If theres language against remarriage, support stops. If theres language that support will continue, it goes on. If theres no language, more of a problem. KRS 403.250 says support stops upon remarriage unless otherwise agreed upon by the parties. c. Traditional legal principles had little to say about the effect of cohabitation on alimony because open cohabitation without marriage was not socially acceptable. d. Several jurisdictions have adopted statutes terminating spousal support if the recipient forms a relationship with a new partner. e. Several other states provide that cohabitation may be grounds for modifying or terminating spousal support.

E. KENTUCKY LAW: Kentucky has adopted need approach.


1. KRS 403.160: Temporary Orders; Maintenance, Child Support [p21] a. Either party may move for temporary maintenance. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested. 2. KRS 403.200: Maintenance; court may grant order for either spouse [p25] (1) Court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and(ct takes liberal approach to reasonable needs) (b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. (wife doesnt have to seek employment(voluntary unemployed if child is 3 or younger or disabled KRS 403.212(d) (2) Court shall determine amounts and time based on all relevant factors, including: (a) financial resources of the party seeking maintenance.and his ability to meet his needs independently (b) the time necessary to acquire sufficient education or training to enable the party to find appropriate job. (c) standard of living established during marriage, (d) duration of the marriage, (e) age, physical, and emotional condition of the spouse Page 31 of 56

(f) ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. If meet first step, Reasonable needs is greater than the income from property and income from appropriate employment then look to other factors to determine how much. 3. Atwood v. Atwood, Ky.App. (1982)[p17] a. When evidence shows that wife cannot make her monthly living expenses, then she is justified in expending whatever sums she must from her marital settlement. b. Once determination has been made that party is entitled to maintenance, court may consider fault of the parties as factor in determining proper amount of maintenance in dissolution action. 4. Lovett v. Lovett, Ky. (1985)[p21] a. Established standard of living during marriage, under statute pertaining to maintenance in dissolution of marriage action, is not necessarily one which was enjoyed over protracted period of time, but is product of many factors. b. Although professional degree, a license to practice, or an acquired specialty may not be property in literal sense, they are assets of marriage and must be considered when contemplating the standard of living established during marriage for purposes of statute pertaining to maintenance. 5. Perrine v. Christine, Ky. (1992)[p74] a. What constitutes need for purposes of obtaining spousal support? b. Trial courts finding that 9 percent return was reasonably obtainable on securities wife was given in dissolution with minimum risk and that considerably higher returns could be had, and that since wifes annual expenses did not exceed the amount she could receive upon the investment return, she was not entitled to maintenance. c. If spouse has 300,000 worth of property from separation. The need is what is necessary to maintain the property received at separation. Must factor in income from property received and what skills have for employment market. 6. Dotson v. Dotson, Ky. (1993)[p104] a. To be entitled to maintenance, spouse must first establish that he or she lacks sufficient property to provide for his or her reasonable needs and is unable to support himself or herself through appropriate employment. 7. Beckner v. Beckner, Ky. (1995)[p127] a. Determination of whether to award maintenance upon dissolution of marriage is highly discretionary with trial court after its consideration of the relevant statute. b. Trial courts failure to award maintenance to wife upon dissolution, in sum sufficient to sustain wife while she completed college degree, was erroneous; although wife was young, in good health, and had some education, wife had no job at time of dissolution, as well as scant employment history during marriage, and had few marketable skills or liquid assets. 8. Leveridge v. Leveridge, Ky. (1999)[p171] a. Maintenance awarded to wife at divorce for 12 years was not excessive, where marriage lasted for more than 18 years, wife lacked employment history and needed education and training to be able to support herself, and husband had greater income plus bonuses and benefits. b. Was dental assistant and out of job market for years, technology passed her, may get money even longer than it takes for her training. It isnt just for rehabilitation, it is for equalization. 9. Combs v. Combs, Ky. (1990)[p28] a. Modification Question: Is a spouses cohabitation sufficient grounds for terminating that spouses spousal support? Page 32 of 56

b. Recipients cohabitation can render continued maintenance unconscionable if cohabitation constitutes new financial resource as contemplated in statute governing amount and duration of maintenance. c. Determining whether recipients cohabitation constitutes change inc circumstances making continued maintenance unconscionable after dissolution or separation requires consideration of the following factors: duration of relationship, economic benefit, intent of parties, nature of living arrangements, nature of financial arrangements, and likelihood of continued relationship. 10. John v. John, Ky.App. (1995)[p121] a. Modification Question: When will spousal support not terminate upon remarriage? b. Husbands obligation to pay maintenance to his former wife did not terminate upon former wifes remarriage, where parties marital settlement agreement required husband to make lump-sum maintenance payment to wife payable in installments over ten years, and relieved husband of obligation to may payments only if wife died. c. Statute terminating maintenance obligation if other party either dies or remarries, unless otherwise agreed in writing or expressly provided in decree, did not require property settlement agreement to expressly provide for continuation of maintenance upon remarriage for husbands maintenance obligation to continue upon former wifes remarriage.

IV. Divorce and New Property


A. Introduction 1. Traditionally interests that may broadly be characterized as new property, such as pensions and other employment benefits, goodwill in small businesses, professional licenses, and educational degrees were not considered divisible property but as potential sources of income from which spousal support could be paid. 2. To the extent that an equal division of community or marital property is required or favored, courts that want to award one spouse the family home have often been able to find that the other spouses interests in pension plans or business goodwill are intangible assets that offset such awards. 3. Valuing Streams of Payments: a. Salvage Value i. Assets that produce income are almost always going to be worth more than their salvage value, although their total value includes their salvage value. b. Book Value i. Historical value; what one pays for an asset. ii. Tells us nothing about the changes that have occurred in the asset or in the market for the asset and thus has no necessary relationship to the assets present market value. c. Time Value of Money d. Discounted Cash Flow Method B. Pensions and Other Employment-Related Benefits 1. Employment-related benefits, provided either by the employer or through public programs such as Social Security, are for many people the most important element of economic security. 2. Pension rights became more substantial and common in 1975 with ERISA 3. Contributory vs. Non-Contributory a. Contributory Plan i. Both the employer and the employee contribute toward the cost of the plan. Page 33 of 56

ii. If contributory, the employees contributions are immediately vested, so the employee is entitled to them even if he or she quits participating in the plan before retirement. b. Non-Contributory Plan i. Only employer makes contributions to plan. c. The employees interest in the amount attributable to the employers contributions may not vest until the employee has worked for a defined period of time, although ERISA limits how long the employer can delay vesting of pension rights. 4. Defined Contribution vs. Defined Benefit a. Defined Contribution Plans i. Each employee has a separate account, and the amount of the employees benefits will depend on how much is in the account through contributions, interest earned, and any other increase in value when the employee begins to draw benefits. ii. Valuation: Since each employee has a separate account, the employees interest is worth the current fair market value of the assets in the account. If the assets are cash or its equivalent, the value will be the total amount of contributions plus any income they have earned. Valuation is more difficult if the assets are themselves more difficult to value, such as real estate. b. Defined Benefit Plans i. An employees benefits are determined on the basis of a formula, usually based on years of service and salary, which does not depend on the amount of contributions. ii. Valuation: Much more difficult, as separate accounts arent maintained. Actuarial principles are used to discount the value of those future payments to a present value. Lawyers hire experts to value these plans. c. Either type of plan can be contributory or noncontributory. 5. Stages of Retirement Plans a. Nonvested (part or all of pension disappears if you leave job or are fired) b. Vested (if you leave or are fired, you still have rights to receive payments) c. Matured (employee reaches point where they are entitled to begin receiving payments, although employee can keep working, not yet taking payments) d. Matured & Paying (employee is actually presently receiving payments) 6. Present Value Approach vs. Reserved Jurisdiction Approach: Laing v. Laing, (Alaska 1987) [p519] a. Courts have used 2 primary methods of valuing and dividing pension benefits, whether vested or nonvested, upon divorce: i. Present Value Approach (A) Court determines the present value of the employee spouses right to receive payments from the pension in the future, awards those rights to the employee, and awards the non-employee spouse other marital property in lieu of his or her share of the pension. ii. Reserved Jurisdiction Approach (A) Trial court retains jurisdiction and orders the employee spouse to pay to the former spouse a fraction of each pension payment actually received. (B) This scheme more evenly allocates the risk of forfeiture between the parties, although it also runs counter to the expressed preference for giving the couple a clean break. b. Laing Court adopted Reserved Jurisdiction Approach 7. Virtually all courts and many statutes now treat vested pension rights as property subject to division, and most treat nonvested rights in the same way. Page 34 of 56

8. In jurisdictions that permit only marital property to be divided at divorce, a pension earned in part before marriage and in part during marriage must be divided into marital and nonmarital shares. a. Most courts use the time rule: the value of the pension rights is multiplied by a fraction whose numerator is the number of years that the pension accrued during the marriage and whose denominator is the total number of years that the pension accrued. b. Some courts use the accrual method: the present value of accrued benefits on the date of the marriage is subtracted from the present value of the total accrued benefits on the date of the divorce, and the difference is the value of the benefits earned during marriage. 9. Employees may have a number of other kinds of benefits, which may or may not be intended to provide for retirement. Many of these are treated as defined contribution plans for purposes of property distribution at divorce. a. Include individual retirement accounts, Keogh plans, profit-sharing loans, stock bonus plans, employee stock ownership plans, and thrift and savings plans. b. A number of courts have also treated accrued vacation and sick leave that can be cashed in when an employee retires as divisible property. 10. Right to participate in group health or life insurance a. Federal and state statutes now protect divorced spouses against loss of health insurance coverage. b. Spouses must pay premiums to continue participating. 11. Social Security, Military, and Other Federal Pensions a. The Supreme Court has held that statutory provisions that prevent covered employees from assigning or alienating their federal pensions rights were intended to prevent courts from treating these rights as marital property. b. Military Retirement Benefits i. Uniformed Services Former Spouses Protection Act (USFSPA) provides that each states divorce courts may treat disposable military retired pay or retainer pay according to the state law governing division of marital property. ii. USFSPA allows former spouses of military personnel to obtain court-ordered payments of property settlements directly from the military finance center if during the marriage the spouse was a member of the armed forces with 10 years of service, and the claim does not exceed 50% of the service members disposable retired or retainer pay. c. Civil Service Pensions i. The Civil Service Act allows treatment of civil service benefits as marital property divisible at divorce. d. Social Security i. Most courts have held that SS benefits are not property subject to division and that their value may not be considered in the division of property. The Social Security Act also exempts from the antialienation protections actions to enforce a beneficiarys legal obligations to support a spouse or children. ii. The divorced spouses are entitled to receive SS benefits on the account of the divorced spouse if they were married for at least 10 years. In addition, a spouse who collects SS on the account of a former spouse must remain single to receive benefits. 12. Qualified Domestic Relations Orders (QDROs) a. Retirement Equity Act provided that a divorce court may enter a QDRO, which directs the pension plan administrator to pay a portion of an employees benefits to someone other than the employee. b. The order can require that payments to the non-employee begin before the employee actually retires beginning on or after the earliest date on which the employee could retire. Page 35 of 56

c. Non-employees to whom these payments are made are called alternate payees. d. Requirements that an order must meet to be a QDRO (If the order satisfies these requirements, the plan administrator must comply with it; if it does not, ERISA forbids the administrator to comply. e. The QDRO must designate with specificity: i. The name and last known mailing address of the participant and the alternate payee; ii. The amount of percentage of the participants benefits to be paid to each alternate payee or the manner in which the amount or percentage is to be determined; iii. The number of payments of the period to which the order applies; and iv. Each plan to which the order applies. f. In addition, the order may not require a plan to: i. Provide any type or form of benefit not otherwise provided by the plan; ii. Provide increased benefits; iii. Pay benefits to an alternate payee that must be paid to another alternate payee under a previous QDRO g. A defined contribution plan is divided by providing that the non-employee receives an amount or percentage of the account balance. Because a defined benefit plan has no account balance, the QDRO uses a flat figure or a formula to designate how much will be paid to the non-employee. 10. QDROs are available only for those plans covered by ERISA. i. Most retirement plans sponsored by private companies are governed by ERISA. ii. The largest group of plans not covered are those provided for federal, state, and local government employees. Some states have legislation allowing QDROs to be used for state and local government pensions. 13. Trend has been to say that retirement benefits earned during marriage is marital property subject to equitable distribution. You need certain information to divide a retirement plan. Determine: a. What type of plan b. What stage pension plan is at c. If working before marriage, must determine how many years were accumulated under plan while single. d. Is this a pension plan you can get a QDRO for or not. C. Personal Injury Awards, Disability Pay, and Similar Interests 1. There are three approaches to classifying PI awards or settlements for the purpose of distribution in a divorce proceeding: a. Classify any PI award or settlement as personal, and therefore entirely the separate property of the injured spouse. b. Analytic Approach: (KY has adopted) Involves an evaluation of the purpose of the compensation in the determination of the character of the award or settlement as marital or personal. i. Compensation for pain and suffering is personal. ii. Compensation for loss of wages and medical expenses incurred during the marriage is marital but compensation for future economic losses is nonmarital. iii. This approach is the overwhelming rule in community property states and it has been applied in a growing number of equitable distribution states. Page 36 of 56

c. Literal or Mechanistic Approach: If the award or settlement is acquired during the marriage, it is deemed marital property regardless of the underlying purpose of the award or the loss it is meant to replace. D. Professional Practices and Other Closely Held Businesses 1. Problems of defining what constitutes the property in the practice (equipment, books, accounts receivable, expertise, professional services) 2. Surely the tangible assets of a business, including a professional practice, may be divisible property, as may intangible assets, such as accounts receivable. 3. Goodwill a. Goodwill is property of an intangible nature and is commonly defined as the expectation of continued public patronage. Elements which engender goodwill: continuity of name, location, reputation for honest and fair dealing, and individual talent and ability. b. Courts are divided on whether professional goodwill is divisible property. A few courts have rejected treatment of goodwill as divisible property in all circumstances. Other courts have tired to find a middle ground between these positions. c. The ALI Family Dissolution Principles recommend that goodwill be treated as property, whether it is marketable or not. d. Valuation of Goodwill i. It is not necessary to value goodwill separately if the value of the entire business can be determined by looking at what the business would sell for on the open market. ii. IF a business does not have a readily determinable FMV, various accounting techniques can be used to determine the value of goodwill, assuming that it is divisible property. E. Degrees, Licenses, Jobs and Earning Capacity 1. Mahoney v. Mahoney (NJ 1982) [CB p551]: a. To provide a fair means of compensating a supporting spouse, the court introduced the use of reimbursement alimony. b. Court said there will be circumstances where a supporting spouse should be reimbursed for the financial contributions he or she made to the spouses successful professional training. Such reimbursement alimony should cover all financial contribution towards the former spouses education, including household expenses, educational costs, school travel expenses and any other contributions used by the supported spouse in obtaining his or her degree or license. 2. OBrien v. OBrien, (NY 1985)[CB p554]: a. Court determined that a professional license is marital property, of which the spouse is entitled to an equitable portion. Its value is the enhanced earning capacity it affords the holder of the degree or license. b. Very extreme no state courts follow OBrien in treating a degree as property. The ALI Family Dissolution Principles recommend against treating licenses, degrees, and the like as divisible property. 3. Even though few states treat degrees as property, most are willing to give relief to the spouse who is divorced at or near the end of the other spouses professional schooling. The states are far from uniform, however, in the relief they provide. 4. Degree Treatment, 4 Alternatives: a. No special compensation for spouse b. Factor to be considered in spousal support (most common view, used in KY) c. Special remedy of reimbursement (more radical point of view, demonstrated in Mahoney) d. Treat spouse as having an equity interest in property (degree) and earnings (very radical approach, OBrien) Page 37 of 56

KY doesnt agree with these approaches 5. 5 things that should be analyzed in degree cases:(looked at in KY also) a. Magnitude of spouses contribution b. Magnitude of sacrifice by spouse(nights alone while other was studying) c. How much time has spouse had to benefit from that sacrifice(how long has she had opportunity to reap some of her contribution back) d. Magnitude of benefit to spouse obtaining degree(how crucial was the support and how much has it increased his earning capacity) e. What was the intent of the parties. What sort of agreement/understanding did the parties have. (was there expectation he would make it up, or was there nothing expected in return)

F. KENTUCKY LAW Client only entitled if they have need. There is no need if they have a good job etc. Alimony normally stops on remarriage.
1. Lovett v. Lovett, Ky. 1985 (p21) a. Although professional degree, a license to practice, or an acquired specialty may not be property in literal sense, they are assets of marriage and must be considered when contemplating the standard of living established during marriage for purposes of statute pertaining to maintenance in dissolution of marriage action. b. Professional degree and license to practice are relevant factors to be considered by trial court in dissolution of marriage action in its determination of standard of living established during marriage, for purposes of awarding maintenance, both as this standard relates to ability of nonprofessional to support himself/herself and as it relates to amount and period of time of maintenance. 2. Waggoner v. Waggoner, Ky. 1992 (p80) a. Can the state legislature exempt certain pensions from being considered marital property? b. Statute exempting contributions to teachers retirement system from division as marital property applies equally to all, is based on distinctive and natural reason that teachers are excluded from participant in Social Security program, and, therefore, does not violate state constitutional restriction on special laws, even though statute sets teachers up as a special class. 3. Glidewell v. Glidewell, Ky.App. 1993 (p99) a. Should non-vested pensions be considered marital property? b. Kentucky statute which protected police officers retirement pension from garnishment, attachment or assignment did not preclude equitable division of pension as marital property upon dissolution of officers marriage. c. Retirement pension that dissolution court had to divide upon breakup of marriage did not have to be valued at zero, simply because it had not yet vested at time of dissolution decree. d. Retirement pension which has not yet vested when dissolution decree is entered cannot properly be divided and awarded at that time, since spouses interest therein is purely speculative. e. Proper approach for dissolution court to take when asked to divide retirement pension that has not yet vested is to postpone dividing pension until vesting occurs. 4. Holman v. Holman, Ky. 2002 (p241) a. Are disability payments marital or separate property? b. Whether a disability retirement was classified as marital or nonmarital property involves an application of the statutory framework for equitable distribution of property upon divorce. Page 38 of 56

c. Kentucky permits division as marital property of both vested and nonvested retirement benefits earned during the marriage. d. Disability pay and workers comp benefits are marital property to the extent they replace income or benefits the recipient would have earned during the marriage but for the qualifying disability or injury; such benefits therefore are classified as marital property to the extent they replace earnings during the marriage, without regard to how or when the benefit was acquired. e. Former husbands future, post-dissolution disability retirement benefits, which replaced his future nonmarital earnings as a firefighter, constituted his separate nonmarital property and thus were not subject to equitable division.

Page 39 of 56

PARENT-CHILD SUPPORT DUTIES


I. Introduction A. During the 19th century, American courts and legislatures established that under the private law, parents have a legal duty to support their children. B. When the courts did impose a legal support duty on parents, they protected parental control by structuring rules regarding the scope of the duty and the means of enforcing it which maximized parental discretion and made legal enforcement difficult. C. Current rationales for parental authority tend to justify it instrumentally as serving the best interests of children and society. D. Making parents duty to support their children legally enforceable inherently limits the parents control to some extent. 1. The available common law and statutory enforcement mechanisms the necessaries doctrine and family expense statutes protect parental control by making enforcement difficult. 2. In addition, the scope of the support duty is defined by parental choices about their lifestyle and their childrens lifestyle. E. In approximately 20 states, legislatures have enacted family expenses statutes, which, like the necessaries doctrine, permit creditors to sue parents for goods and services supplied to their children without requiring a prior promise by the parents to pay. Parental liability under these statutes is usually broader than under the necessaries doctrine. For example, the creditor may not have to prove that an item was a necessary. Nevertheless, the statutes preserve some control for parents, since liability exists only for family expenses. F. Law imposes obligation on married parents to support child, as well as those parents who cohabit together without marriage. Someone who is not a biological parent generally does not have a support obligation. Once the parent and step-parent splits, step parents obligation ends. Certain exceptions: stepparent adopts child, express agreement in a prenup.

II. Determining the Level of Support


A. Child Support Guidelines: 1. Federal legislation enacted during the 1980s mandates that all states use child support guidelines. 2. The Family Support Act of 1988 requires states to promulgate guidelines applicable to all administrative and judicially established child support orders within the state. 3. The guidelines operate as a rebuttable presumption. 4. P 566-567: 45 CFR 302.56 prescribes criteria for guidelines. 5. In most states the legislature has established the formula or delegated authority to an administrative agency to do so. 6. When courts have promulgated guidelines, there has been question about the limits of their authority to deviate from pre-guidelines substantive law. B. The Three Models Used for Determining Level of Support 1. Flat Percentage Guideline a. Used by 13 of the states. b. Simplest type of guideline, sets child support as a percentage of obligor income, with the percentage varying according to the number of children. c. Wisconsin is the most well-known example. Child support orders are determined only on the basis of the obligors gross income and the number of children to be supported. d. The child support obligation is not adjusted for the income of the custodial parent. The standard assumes that each parent will expend the designated proportion of income on the child, with the custodial parents proportion spent directly. e. There is no adjustment for other factors such as child care expenses, extraordinary medical expenses, or age of child. 2. Income Shares Model Page 40 of 56

a. Used by 32 states, including Kentucky b. Based upon the precept that the child should receive the same proportion of parental income that would have been received if the parents lived together. c. Thus, the income shares model calculates child support as the share of each parents income estimated to have been allocated to the child if the parents and child were living in an intact household. d. Computing child support under this model involves 3 steps: i. Income of the parents is determined and added together. ii. A basic child support obligation is computed based on the combined income of the parents. This obligation represents the amt. estimated to have been spent on the children jointly by the parents if the household were intact. A total child support obligation is computed by adding actual expenditures for work-related child care expenses and extraordinary medical expenses. iii. The total obligation is then pro-rated between each parent based on their proportionate shares of income. The obligors computed obligation is payable as child support. The obligees computed obligation is retained and is presumed to be spent directly on the child. 3. Delaware Melson Formula a. Parents are entitled to keep sufficient income for their most basic needs to facilitate continued employment. b. Until the basic needs of children are met, parents should not be permitted to retain any more income than required to provide the bare necessities of their own self-support. c. Where income is sufficient to cover the basic needs of the parents and all dependents, children are entitled to share in any additional income so that they can benefit from the absent parents higher standard of living. d. This approach is used by Delaware, Hawaii, Montana, and West Virginia. C. Generally, courts have held that just because an item is deductible for purposes of the federal income tax it is not necessarily deductible for purposes of calculating child support. 1. Child support guidelines definitions of income are very broad, and courts have construed them broadly. Retirement income and Social Security have been treated as income, so has spousal support. D. Issue: How to set child support when the income of one or both parents is higher than the top amount on the child support scale. 1. Most courts refuse simply to extrapolate the percentages in the scale to the parents actual income. 2. Some courts have held that the guidelines simply do not apply in this situation and that the case should be decided under pre-guideline law. 3. Other courts begin with the guideline amount that would apply if the parents income were equal to the guideline maximum and then exercise discretion to add amounts to reflect the additional income. KY TAKES THIS APPROACH. E. Parents with very low incomes who cannot earn more are generally not totally exempt from child support. Most guidelines provide for a minimum child support obligation. F. Can parties settle for an amount of child support below the guidelines? 1. The majority of courts addressing the question have held that this is not permissible unless a downward deviation is otherwise justified. 2. On the other hand, in general, parents may enter into enforceable contracts for more child support than a court could order or for a longer term, and if the parents agree, courts ordinarily may incorporate such agreements into their orders.

III. Medical Expenses


A. The federal child support regulations require state law to incorporate provisions specifically addressing childrens medical expenses. B. For employed parents this can be done most economically by ordering a parent whose employer provides insurance to include the children in his or her plan. Page 41 of 56

1. Congress enacted legislation in 1993 requiring states to have laws preventing employers from denying enrolment to employees children not living with the employee parent, born outside marriage, or not claimed as a dependent by the employee parent for federal income tax purposes. 2. The insurance plan must allow the child to be enrolled outside limited enrollment seasons, and if the noncustodial parent does not enroll the child, the plan must allow the custodial parent to enroll the child. 3. The insurance plan must provide the child the same documents about the plan that it gives participants, and it must permit the custodial parent to submit claims without the approval of the noncustodial parent. 4. It cannot eliminate coverage for the child unless it receives written evidence that the court order is no longer in effect or that the child is covered by other, comparable health insurance. 5. The legislation also amended ERISA to require covered group health plans to honor a qualified medical child support order (QMSCO). a. This order creates or recognizes the right of a child to benefits from a parents group health care plan. b. Must be honored by an insurance plan administrator if they include: (1) name and mailing address of the plan participant and each alternate recipient covered by the order; (2) a reasonable description of the type of coverage to be provided; (3) period to which the order applies; and (4) each plan to which the order applies.

IV. Challenges to the Prevailing Child Support Model


A. The Income Shares Model has been widely adopted because it seems to express the right policy: The income of both parents should be considered in calculating child support, not just that of the obligor parent, and the parents should spend as much money on the child as they would if they lived with the child. B. There are growing criticisms: 1. Guidelines are neither intended nor designed to register and reflect the need of the child in the residential household. They do no consider the resources independently available to the residential household. 2. The model fails to take into account that the costs of the two households together are greater than one household alone because of loss of economies scale.

V. Support for Older Children


A. Today we ordinarily think of parents support duty as terminating when a child attains the age of majority. B. Higher Education 1. Most child support guidelines do not address specifically parental responsibility for supporting children in college. 2. Some statutes explicitly authorize courts to award child support for adult children attending school. 3. In the absence of such a statute, courts are divided about whether they have authority to make such awards. a. Some courts base orders on statutes that declare a parental duty to support children in need. IN states without such statutes, courts base their holdings on common law principles. 4. At a minimum most states have adjusted the date of termination of child support to require support for children older than 18 who are still dependent in the sense of living at home going to high school. Some states require child support to continue until a child is 19 or finishes high school or its equivalent, whichever comes first. 5. In KY, court doesnt have authority on its own to order support obligation for these things past age of maturity. It is vital to get this in specifics in the separation agreement. Page 42 of 56

C. Disabled Children 1. The modern trend is to impose a support duty on parents for adult disabled children who are incapable of self-support. D. Emancipation 1. Child has become emancipated from home. 2. Courts define emancipation differently, but generally, a child is emancipated when they voluntarily leave the home and start out on their own. Two most common examples: marriage and enlisting in military.

VI. Support for Parents


A. There is a strong trend for adult children to provide support for their elderly parents. B. Americana Healthcare Center v. Randall, (SD 1994) [CB p607] 1. It is reasonable to place a duty to support an indigent parent on that parents adult child because they are direct lineal descendants who have received the support, care, comfort and guidance of that parent during their minority.

VII. KENTUCKY LAW


How to analyze Worksheet(if fill out form and more than year later and more than 15% change, there is presumption of material change of circumstances allowing modification, but if less than 15% change presumption against) Income Defining, Finding Potential income New situations Split custody Joint custody Deviation Negotiating and Drafting A. KRS 403.210: Recognition of Family Support Act of 1988 Mandated (p26) B. KRS 403.211: Action to establish or enforce child support (p26) (1) Action to establish or enforce support.may be initiated by parent, custodian, or agency.brought in the county in which the child resides or where the defendant resides. (2) Guidelines serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from them where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding, specifying the reason for the deviation. (3) Appropriate adjustment of the guideline award if based on one or more of the following criteria: (a) childs extraordinary medical/dental needs; (b) childs extraordinary educational, job training, or special needs; (c) Either parents own extraordinary needs, such as medical expenses; (d) Independent financial resources of the child; (e) Combined monthly adjusted parental gross income in excess of the KY guidelines; (f) parents (with knowledge of the guidelines) have agreed to child support different from the guideline amount. However, no such agreement can be the basis of a deviation if public assistance is being paid on behalf of a child; (g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate. (4) Extraordinary shall be determined by the court in its discretion. (5) When a party has defaulted or the court is otherwise presented Page 43 of 56

with insufficient evidence to determine GI, the court shall order child support based upon the needs of the child or the previous standard of living of the child, whichever is greater. (6) Court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the guidelines. (7) Health insurance (8) Extraordinary medical expenses. C. KRS 403.212: Child Support Guidelines Terms to be applied in calculation Table (p29) (2)(b) what things are included in gross income- gifts, prizes not included (2)(c) income when someone is self employed (2)(d) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a child age three or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligors or obligees recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community.. (4) The court may use its judicial discretion in determining child support in circumstances where combined adjusted parental gross income exceeds the uppermost levels of the guideline table. (6) If split custody arrangement, child support calculated by following (6)(a)+(b) p. 30 KY statutes On page 31 are working with income shares amounts D. KRS 403.213: Criteria for Modification of Child Support Awards Commission to review guidelines (p34) (1) Modification is made only upon a showing of a material change in circumstances that is substantial and continuing. (2) Application of the guidelines to the circumstances of the parties at the time of the filing of a motion for modification of the support order which results in equal to or greater than a 15% change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a 15% change in the amount of support due per month shall rebuttably presumed to be a material change in circumstances. (3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of 18. Provisions for the support of the child shall not be terminated by the death of a parent obligated to support he child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump sum payment. E. KRS 403.215: Assignment of wages for child support obligations (p35) Child support decree will begin immediately except for good cause shown and shall be paid upon the payment schedule. F. KRS 405.020(2) Disabled KIDS Disabled children- father and mother shall have joint custody, care, and support of their children who have reached the age of eighteen and who are wholly depednant b/c of permnanent physical or mental condition. F. McKinney v. McKinney, Ky.App. 1991 (p57)PARENTAL UNEMPLOYMENT 1. Evidence supported finding that ex-husband was not voluntarily underemployed for child support purposes, notwithstanding that he refused to return to higher paying job from which he had been laid off and kept new, lower paying position; ex-husband had set Page 44 of 56

G.

H.

I.

J.

K.

up residence in new family in city where he found new position, and considered new position to be more secure than old job. 2. Provision of child support guidelines dealing with obligors voluntary underemployment implicitly includes element of bad faith. Smith v. Smith, Ky.App. 1992 (p78)CHILD W/ SPECIAL NEEDS 1. Childs private music lessons could not be considered extraordinary education so as to allow modification in child support where there was no indication that child could not take music lessons from public school he attended, and child was not handicapped in any way that would require him to attend private school, even though child had extraordinary musical ability. Can be analogized to gifted abilities. If no handicap no requirement for anything other than support. Narrow interpretation of 403.211(3) could argue against maybe. If parties agree to it, then ok, According to next case Giacolone Downey v. Rogers, Ky.App. 1993 (p86) 1. Child support may be ordered even if parties have equal physical possession of children. 2. Under guidelines, court properly refused to eliminate husbands support obligation, husband earned approximately twice as much as wife, all expenses were not equally shared by parties, and parties negotiated sum as child support at same time they agreed to share equal possession of children. 3. Trial court could take into consideration period of time children resided with each parent in fixing obligation, and could deviate from guidelines if convinced their application would be unjust. 4. Father was not entitled to reduction in support; the reduction was not a 15% difference necessary to meet statutory presumption of material change, and only change father could demonstrate was higher amount of debt since dissolution, incurred solely because he had taken on too much consumer debt. Giacalone v. Giacalone, Ky. 1994 (p107)CHILD W/ SPECIAL NEEDS 1. Parties to separation agreement may waive statutory requirement that party moving for increase in child support prove material change in circumstances if it does not impair rights of others, is not contrary to public interest, and is expressly, knowingly and voluntarily made. 2. Increase in child support pursuant to separation agreement under which parties waived statutory requirement of proving material change in circumstances when seeking increase in child support based on childs attendance at parochial school was subject to statutory child support guidelines. 3. In determining amount of increase in fathers weekly obligation based on childs attendance at parochial high school, trial court was required to determine total educational expenses incurred, rather than amount of tuition. Rush v. Hatfield, Ky.App. 1996 (p130) 1. Does a child who fathers a child have a duty of support? 2. Father of an illegitimate child, who lacked statutorily-defined capacity to consent to sexual relations on date child was conceived, is not relieved from civil obligation to support child once father reaches majority, absent evidence that fathers participation in the conception was involuntary or forcibly compelled. Moore v. Commonwealth, Ky. 1997 (p142) 1. When may action against a biological father be estopped? 3. After wife stipulated to husband as father of her child in connection with dissolution decree, collateral estoppel precluded her from litigating issue of paternity in later child support lawsuit against another man, though paternity test result known to wife before entry of decree excluded husband as childs father, and genetic testing later found high probability of other mans paternity; decree was final judgment on merits of case, paternity was necessary issue for dissolution action, and wife had full opportunity to litigate paternity before decree was entered. a. If issue was actually husband finding out kid wasnt his it may be different. Page 45 of 56

May depend on factual circumstances, if he had reason to know at the time of divorce, probably not allowed to litigate c. If had no reason to know, then maybe. Would definitely have better chance. L. College Education(p. 9 assignment #9) - Ct. doesnt have power to order - Need agreement if want it provided for,and need to set out conditions specifically - If agree to pay for certain number of years, if dont do well and not in agreement then still have to pay. M. Child may be emancipated before 18. - Have kid and set up household of their own. - Get married, etc. N. General Rule in KY is that when stepparent is caring for kid, once break up with the natural parent there is no further duty. Exceptions - If adopted child - Prenuptial agreement saying they will support child must live up to agreement. - KY Doesnt follow these but make argument - Virtual Adoption- Can Make argument to other jurisdiction that there was a virtual adoption. - Equitable estoppel- stepparent said not to worry about going after biological father and natural parent relied on it, then may be estopped from ending support. O. Bustin v. Bustin, Ky. 1998 (p161) 1. When is a child old enough so no further support is required? 2. Unless otherwise agreed as used in statute extending child support obligation for unmarried high-school student until graduation or completion of school year in which child reaches age of 19 permitted parents to agree to extend further, but not to curtail, statutory duration of support obligation, and thus, statute precluded former spouses agreement, incorporated into the decree, for husbands obligation to terminate upon emancipation of each child without reference to whether they were in high school.

b.

Page 46 of 56

OTHER ECONOMIC ISSUES

I. Enforcement
A. Private Enforcement Mechanisms Liens, Trusts, and Insurance 1. Under some circumstances judges (and lawyers drafting separation and other agreements) can do much to eliminate or minimize enforcement problems. The decree or agreement should establish definite time limits and procedures for carrying out obligations. 2. Devices such as liens and trusts to secure payment of future money obligations discourage noncompliance and make enforcement easier. a. In some states statutes explicitly authorize courts to order that trusts for dependents be established incident to divorce. b. To protect a dependent person against the premature death of a supporting former spouse or parent, some states allow courts to order the obligor to maintain life insurance for the benefit of the obligee in a sufficient amount to provide the ordered support. In other states, though, such an order is considered post-mortem alimony and can only be entered with the agreement of the parties. B. Contempt 1. Obligors who fail to pay court-ordered support for their dependents may be held in contempt of court and jailed in all states. 2. Contempt requires proof that a court order for support exists and that the obligor willfully refused to comply while having the ability to pay. 3. Hicks ex rel. Feiock v. Feiock, U.S. 1988 [p668] a. If ability to pay is an element of the offense in a criminal contempt proceeding, the plaintiff must bear the burden of persuasion on the issue. On the other hand, in a civil contempt proceeding, it is constitutional to impose the burdens of production and persuasion on the defendant. 4. Nonpayment of child support may be civil or criminal. a. Criminal contempt must be established by proof beyond a reasonable doubt, while civil contempt may be established by a lesser burden, either a preponderance of the evidence or clear and convincing evidence. C. Defenses to Nonpayment of Support 1. Retroactive Modification a. Many people do not seek downward modification so support orders as soon as they have grounds. Instead, they stop paying and wait. b. Federal law now requires states to provide that overdue child support is a judgment by operation of law the purpose of this requirement and the effect of the change is to prevent courts from retroactively modifying child support obligations. 2. The Meaning of Inability to Pay a. Provisions in many state constitutions prohibit imprisoning a person for nonpayment of debt, but challenges to the use of the contempt power to enforce child support obligations on the ground that it violates these constitutional provisions fail. b. However, support obligors who are unable to pay cannot be held in contempt. 3. Visitation and Child Support a. IN a few states statutes expressly condition child support duties on compliance with visitation rights. However, in most jurisdictions visitation and child support are, in principle, independent in the sense that a custodial parents failure to allow the other parent to visit does not excuse the noncustodian from paying child support. b. Courts sometimes use their equitable powers to excuse nonpayment of support when the custodial parent has interfered with visitation on unclean hands and related grounds. 4. In-Kind Contributions as an Offset against Child Support Page 47 of 56

a. In most jurisdictions, the formal rule is that an obligor cannot satisfy an order to pay a specific sum in support by purchasing goods or services instead, and obligors are not entitled to offset the costs of such purchases against the amount they owe. b. Again, however, some courts use their equitable powers to make exceptions, especially when the custodial parent has consented to substituting purchases for payments. D. Criminal Penalties for Failure to Pay Support 1. Willful failure to support a dependent is a crime, and many states have criminal nonsupport statutes on the books. 2. These statues have fallen into disuse in many places, though they are being used more frequently in some places as a result of current interest in child support enforcement. 3. In addition, under some circumstances failure to pay support is a federal crime under the Child Support Recovery Act. E. The State-Federal Child Support Enforcement Program 1. Legislation enacted by Congress in 1975 created the federal Office of Child Support Enforcement. The legislation requires each state to establish a child support enforcement agency (IV-D agency). 2. The state IV-D agency must provide certain services, including establishment of support duties, establishment of paternity, and location of absent parents. 3. The 1996 reform legislation provides for the improvements to the process of finding missing parents (requires the establishment of a national directory of new hires); also requires creation of national and state registries of child support orders. Act also requires states to develop an automated, centralized system for recording the payment and dispersal of child support. 4. Expedited Processes a. For expediting, states must create an administrative or quasi-judicial process for obtaining and enforcing support orders in IV-D cases. 5. Enforcement by Wage Withholding a. Perhaps the most important enforcement device. Through the 80s, federal legislation increased the income withholding requirements. b. Today states must require wage withholding in all child support cases unless a court or administrative agency hearing officer finds good cause, put in writing, not to implement withholding immediately, or the parties agree not to implement withholding immediately. c. The Federal Consumer Credit Protection Act limits how much of a persons wages may be withheld. i. The basic limit is 50% of disposable earnings for a noncustodial parent who is not supporting a 2nd family. 6. Other Enforcement Devices states may use to enforce support: a. Judicial authority to impose liens against real and personal property for amounts of overdue support; b. Judicial authority to require obligors to post a bond or give some other guarantee to secure payment of overdue support; c. Allowing failure to pay support to be reported to consumer credit bureaus; d. Withholding state tax refunds payable to a parent of a child receiving support services, if the parent is delinquent in making payments; and e. Suspending the drivers licenses and professional, occupational and recreational licenses of delinquent obligors. F. The Alternative of Child Support Assurance 1. Child Support Assurance is a plan to guarantee every child a certain level of financial security. 2. Three prongs: Page 48 of 56

a. Awards established pursuant to a support guideline; b. Increased enforcement through such means as immediate income withholding; and c. Insured minimum benefits. 3. If an obligor fails to pay his or her ordered support amount, the federal government would forward to the custodial parent the difference between the assurance amount and the awarded support. 4. Child support assurance differs from welfare: a. Not income tested any custodial parent is eligible to receive an assured payment. b. Does not discourage work; a child support assurance plan does not based the amount of assured payment on a parents earning. c. Will lead to enhanced support for our nations children since a parent will be unable to receive the assured payment unless the parent cooperates with the government officials attempting to enforce support. d. It does not stigmatize the recipient as does welfare. e. Child support assurance properly focuses societys attention on the obligated parent.

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CHILD CUSTODY
I. Introduction A. During the colonial period in this country and in England during the same time, custody disputes rarely came before the courts. Common law doctrine assigned to fathers sole custody of their legitimate children. A father not only had the sole right to custody while he lived, he could determine custody after death by appointing a testamentary guardian.

II. Standards for Custody Determinations


A. An Introduction to the Best Interests Standard 1. Movement from paternal patriarchy to judicial patriarchy. B. The Maternal Preference 1. Tender years Rule: decreed that infants, children below puberty, and young children afflicted with serious ailments should be placed in a mothers care unless she was proven unworthy of her responsibility. 2. Under tender years rule, mothers gained a presumptive claim to their young children. It institutionalized gender roles. 3. Many jurisdictions have abandoned the maternal preference and tender years presumption, though it has not completely disappeared. C. The Primary Caretaker 1. Burchard v. Garay (Calif.) [p734] a. Court found that mother had been the primary caretaker for the child from birth to the date of the trial court hearing, that no serious deficiency in her care had been proven, and the child under her care has become healthy and happy. b. Court frequently stressed the importance of stability and continuity in the life of a child, and the harm that may result from disruption of established patterns of care and emotional bonds. 2. ALI 2.09, Allocation of Custodial Responsibility [p739] 3. In identifying the primary caretaker, courts look to various factors. These can include preparing and planning meals; bathing, grooming, dressing; purchasing, cleaning, and care of clothes; medical care; arranging for social interaction among peers after school; arranging alternative care; putting child to bed, waking them; disciplining; education; and teaching elementary skills. 4. Section 2.03(6) of ALI defines caretaking functions as tasks involving interaction with the child or directing the interaction and care provided by others. Caretaking functions are distinguished from parental functions, which include provision of economic support, decision-making regarding the childs welfare, maintenance of the family home, financial planning, and other functions that are important to the childs welfare and development. 5. ALI 2.09 only takes into account caretaking activities, and not parental functions. 6. Where the parents time commitments to caretaking have changed over time, the Comment indicates that the longer arrangement (rather than the more recent) should be given priority on the ground that a different result would inadequately recognize the caretaking functions likely to have been most significant to the child and would provide an incentive for strategic behavior in anticipation of divorce. D. Religion, Sexual Behavior, and Race 1. Religion a. In re Marriage of Hadeen (Wash.) [p747] i. Parent has the right of free exercise of their religion. ii. Religious decisions and acts may be considered in a custody decision only to the extent that those decisions or acts will jeopardize the temporal mental health or physical safety of the child. iii. We hold that the requirement of a reasonable and substantial likelihood of immediate or future impairment best accommodates the general welfare of the child and the free exercise of religion by the parents. b. Osier v. Osier (Me.) [p754] Page 50 of 56

i. This case has been cited the most. Puts forth a three part test: ii. First, in order to assure itself that there exists a factual situation necessitating infringement upon parents freedom of religious expression, the court must make a threshold factual determination that the childs temporal well-being is immediately and substantially endangered by the religious practice in question and, if that threshold determination is made, iii. Second, the court must engage in a deliberate and articulated balancing of the conflicting interests involved, to the end that its custody order makes the least possible infringement upon the parents liberty interests consistent with the childs well-being. iii. Third, in finishing the appropriate order, the court should adopt a means of protecting the best interests of the child that makes the least possible intrusion upon the constitutionally protected interests of the parent. 2. Sexual Behavior a. A number of decisions place dispositive, or at least great, weight on illicit sexual relations. Other courts do not place such weight on sexual relations. b. Courts can accord various degrees of significance to nonmarital cohabitation, short of treating it as dispositive: i. They can disregard it entirely; ii. They can say that it is important when there is evidence that children have been adversely affected by that fact; iii. They can say that nonmarital cohabitation is important when there is evidence that children will probably be affected adversely in the near future; iv. They can presume that such cohabitation will harm the child and require the mother to prove that the childs best interests nonetheless require that she retain custody. c. A number of decisions today hold that homosexuality is not itself a sufficient reason for denying custody or visitation. d. Some connection between the parents sexual conduct, whether homosexual or heterosexual, and harm to the child must be shown before that conduct is relevant to the custody determination. Moreover, generalizations regarding possible impact of conduct outside the childs presence are impermissible. There are, however, decisions that suggest otherwise, particularly where the conduct is obvious to the child. e. Jarrett v. Jarrett [p 756] i. Court took kids away from mom looked at not just physical harm, but also mental, emotional, and moral harm. ii. Dont need actual harm possibility of harm is sufficient. 3. Race a. Palmore v. Sidoti (US) [p769] i. State court divested natural mother of the custody of her child because of her remarriage to a person of a different race. ii. Goes against 14th Amendment. iii. The reality of private biases and the possible injury they might inflict are not permissible considerations for removal of a child from the custody of its mother. E. Other Tests 1. Spouse Abuse a. Growing national awareness that children who witness or experience domestic violence suffer deep and profound harms. b. To better protect kids, many states have adopted legislation making it more difficult for an abusive parent to obtain custody of a child in a divorce proceeding. Page 51 of 56

2. Friendly Co-Parenting a. Several state statutes now incorporate a friendly parent element for courts to consider. b. Ex: direct courts to consider, in determining the childs best interests, the propensity of each parent to actively support the childs contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability to cooperate in matters affecting the child.

III.

Joint Custody
A. Until relatively recently, courts generally agreed that all children of a family should be placed with a single custodial parent. 1. Joint custody arrangements were disfavored or simply rejected on a number of grounds, including the notion that a single parent with primary responsibility to providing consistency in discipline and moral education. 2. Joint legal custody also seemed to threaten a continuation of the spousal conflict leading to divorce, a conflict that would now directly involve the children. B. Over the last 20 years, attitudes have changed. 1. Current interest in joint custody is driven by the perception that custody disputes are acrimonious and harmful to children and that placement of custody with one parent tends to continue that acrimony, to alienate the noncustodial parent from his children, and to create continuously contentious relations between the divorced parents. 2. Some states now articulate a preference for joint custody, and most permit it in appropriate cases. C. Taylor v. Taylor (Md.) [p784]: 1. Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the childs life and welfare. 2. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parents rights are superior to the other. 3. Physical custody means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality shared or divided custody. 4. Court listed some relevant factors in deciding whether to award joint custody: a. Capacity of the parents to communicate and to reach shared decisions affecting the childs welfare. b. Willingness of parents to share custody. c. Preference of child; d. Potential disruption of childs social and school life; e. Demands of parental employment; f. Age and number of children; g. Sincerity of parents request; h. Financial status of parents; i. Impact on state or federal assistance; j. Benefit to parents. D. A number of states have not only accepted joint custody as a possible post-divorce arrangement but declared it to be the preferable arrangement. E. Not all courts emphasize the importance of the willingness of parents to undertake joint custody. F. Split Custody 1. Split physical custody occurs when each parent has physical care of at least one child.

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2. Many states recognize a presumption that siblings should not be separated on the ground that such an arrangement deprives children of the benefit of constant association with one another. 3. However, disapproval of split custody is not ironclad, and circumstances may arise which demonstrate that separation may better promote the long-range best interest of children. Good and compelling reasons must exist for a departure. G. Lombardo v. Lombardo (Mich.) [p800] 1. Joint custody in this state by definition means that parents share the decision-making authority with respect to the important decisions affecting the welfare of the child, and where the parents as joint custodians cannot agree on important matters, it is the courts duty to determine the issue in the best interests of the child.

IV. Visitation and Its Enforcement


A. Denial of visitation is an extreme remedy, rarely approved. B. Courts employ broad discretion in fashioning visitation arrangements. C. Burgess v. Burgess (Calif.) [p810] 1. In an initial judicial custody determination based on the best interests of the minor kids, a parent seeking to relocate does not bear a burden of establishing that the move is necessary as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is necessary to do so. Instead, he or she has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. D. All authority does not, however, presume the custodial spouses authority to determine residence. E. Generally, responsibility falls on custodial parent to prove why non-custodial parents visitation should be restricted. Very hard to do, because parents have broad rights.

V. Visitation Rights of Grandparents and Other Interested Adults


A. Common law did not recognize rights of grandparents to visitation over the natural parents objection. Grandparents only have the right through statute. B. Now, all 50 states have some kind of grandparent right statute. These statutes vary in the circumstances under which grandparents are entitled to visit.

VI. Modification of Custody and Visitation Orders


A. The requirement that a party seeking a change in custody show a material change in circumstances is almost universal. B. UMDA adopts a strict approach to modification: 1. No modification will be granted within 2 years of the initial order unless there is evidence of danger to the childs physical, mental, moral, or emotional health, and modification afterward is permitted only where new or previously unknown facts show: (1) Consent to modification by the custodian; (2) integration into petitioner's family with consent of the custodian; or (3) serious danger to the childs physical, mental, moral, or emotional health and harm caused by change in environment is outweighed by advantages. C. Among the most common changes is remarriage of one of the parents. It is often said that remarriage of the noncustodial parent does not by itself constitute a material change of circumstances. D. The law of most states is that absent a court order restricting their movement, the custodial parent and the child are free to move into another jurisdiction. An exception may be recognized where removal of a child by the custodial parent to a foreign country is involved, but even in that circumstance, most courts permit removal.

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VII. Kentucky Law


A. KRS 403.270 403.350: Child Custody KRS 403.270: Custodial Issues; Best Interests of Child Shall Determine; Joint Custody Permitted; De Facto Custodian [p37] (1) (a) Unless context requires otherwise, de facto custodian means person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided w/ the person for a period of 6 months or more if the child is under three years of a ge and for a period of one year or more if the child is three years of age or older has been placed by the dept. for community based services. Any period of tiem after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided w/ the person for the required minimum period. (b) Person shall not be a defacto custodian until a ct determines by clear and convincing evidence that the person meets the definition of de facto custodian established in (a) of the subsection. Once a ct determines that a person meets the defeinition of de facto custodian, the ct shall give the person the same standing in custody matter that is given to each parent under this section and KRS403.340, 403.350, 403.420, and 405.020. (2) The ct shall determine custody in accordance w/ best interests of the child and equal ksn shall be given to each parent and to any de facto custodian. The ct shall consider all relevant factors including. (a) the wishes of the childs parent as to his custodian (b) the wishes of the child as to his custodian;(certain age right of election) (c) The interaction and interrelationship of the child w/ his parent or parents, his siblings, and any other person who may significantly affect the childs best interest; (d) The childs adjustment to his home, school, and community; (e) The mental and physical health of all individuals involved; (f) Information, records, and evidence of domestic violence as defined in KRS 403.720 (g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian; (h) The intent of the parent or parents in placing the child w/ de facto custodian; and (i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed w/ de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school (3) The ct shall not consider conduct of a proposed custodian that doesnt affect his relationship to the child. If domestic violence and abuse is alleged, the ct shall determine the extent to which the domestic violence and abuse has affected the child and the childs relationship to both parents. (4) The abandonment of the family residence by custodial party shall not be considered where said party was physically harmed or was seriously threatened w/ physical harm by his or her spouse, when such harm or threat of har was causally related to the abandonment. (5) The ct may grant joint custody to the childs parents, or to the childs parents and a de facto custodian, if it is in the best interest of the child.

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(6) If the ct grants custody to a de facto custodian, the de facto custodian shall have legal custody under the laws of the commonwealth. Also look at wealth of parties as factor OTHER STATUTES REGARDING CHILD CUSTODY 2. KRS 403.280: Temporary Custody Orders [p38] 3. KRS 403.290: Child; Court May Interview, Court may seek advice of professional personnel [p38] behind closed doors, guardian at litem can be appointed to talk to child How much weight given to a parent? 4. KRS 403.300: Investigation, Court may order in custody proceedings [p39] 5. KRS 403.310: Hearings, Custody Proceedings shall receive priority [p39] 6. KRS 403.320: Visitation of Minor Child [p40] parental visitation- will get visitation unless can prove harm to kids. Even if prisoner in jail, gets day in ct to see if he should get right Noncustodial parent- only taken away if show serious endangerment. 7. KRS 403.330: Judicial supervision of custody decree or agreement [p40] 8. KRS 403.340: Modification of Custody Decree [p41] Sole Custody- custodial parent allowed to move, must show harm to prevent Joint Custody- same as sole custody, must show harm to prevent move Sheer 9. KRS 403.350: Affidavit required with motion for temporary custody order or for modification of custody decree [p42] KRS 405.021 Grandparent visitation rights B. KRS 403.400 403.560: Uniform Child Custody Jurisdiction Act - In KY no cases discussing primary caretaker, can argue that primary caretaker should be taken into account b/c it is a factor for nonbiological parents. - Can also argue poor quality as caretaker(may have fed them, but not healty etc.) can argue that parent did few things on list but did them very well - religion not taken into account unless against medical care and kid has bad medical problems. 1. Take religion out and see who would give custody to, if it is parent w/o religion then go ahead. 2. If religion plays factor a. unless immediate harm to kid is posed possibly b. see if that parent will allow guardian to control situations then may give custody - Race not taken into account also. C. King v. King, Ky.1992 (p67) 1. Grandparent visitation statute, authorizing court to grant reasonable visitation rights to grandparents and to issue necessary enforcement orders, was constitutional and did not unduly intrude into the fundamental rights of the parents. D. Squires v. Squires, Ky.1993 (p89)TEST FOR JOINT CUSTODY 1. Overriding consideration under custody statute is that any custody determination is to be in the best interests of the child, and neither parent is the preferred custodian and the parents wishes, while appropriate for consideration, are not binding on the trial court. 2. Cooperative spirit between divorced parents is not a condition precedent to award of joint custody. 3. In determining whether joint custody should be awarded, court must consider the statutory factors concerning award of custody generally, to account for childs unique circumstances, and thereafter court should look beyond the present and assess the likelihood of future cooperation between the parents, and to achieve such cooperation, court may assist the parties by means of its contempt power and its power to modify custody in the event of bad faith refusal of cooperation. Page 55 of 56

E.

F.

G.

H.

I.

4. Even when joint custody is awarded, court may designate where child shall usually reside and may make such other orders as are necessary to properly effectuate joint custody. 5. It is impermissible to prefer sole custody over joint custody; in every case, parties are entitled to individualized determination of whether joint custody or sole custody serves childs best interests. Greathouse v. Shreve, Ky.1995 (p111) 1. When will a non-parent be awarded custody over a parent? 2. Best interest test of child standard does not apply to custody determination between parent and nonparent unless there is clear and convincing evidence that parent has waived his or her superior right to custody. 3. Surrender of care of child to nonparent and parents long-term acquiescence in such living arrangements are factors for court to consider in deciding whether parent has waived his or her superior right to custody, in custody proceeding between parent and nonparent; however, such factors are by no means exclusive or conclusive. 4. Conclusion that parent has waived his or her superior custodial right requires clear and convincing proof of knowing and voluntary surrender or relinquishment of known right. Shifflet v. Shifflet, Ky.1995 (p116) 1. Trial court could apply bets interest of child standard to custody dispute between natural mother and paternal grandmother, if natural mother had waived her superior right to custody. 2. Proof that parent has waived his or her superior custodial right must be clear and convincing in order for best interests standard to apply in custody dispute with third party; as such, while no formal written waiver is required, statements and supporting circumstances must be equivalent to express waiver to meet that burden of proof. Williams v. Phelps, Ky.App.1998 (p157) 1. What standards apply in custody battles between non-parents. 2. In custody action initiated by childs maternal aunt, nonparent who was sister of deceased man who had thought he was the father, and had had de facto custody of child, had standing to move for custody of child. 3. In custody proceeding, if a parent has been declared unfit, or has relinquished custody and custody is contested between 2 nonparents, best interests test applies. 4. In a custody action between nonparents, family court should have held hearing to determine merits of each party as to custody and to determine what was in childs best interest. Scheer v. Ziegler, Ky.App.2000 (p173) MODIFICATION OF JOINT CUSTODY 1. Joint custody is an award of custody which is subject to the custody modification statutes, and there is no threshold requirement for modifying joint custody other than such requirements as may be imposed by the statutes. 2. Courts have the ability under statute to modify joint custody in situations where the parties are unable to cooperate. Apply same standard as Sole custody- must show harm to children if going to prevent a move of custodial parent Parker v. Parker, Ky.App.2002 (p238) 1. Law does not permit granting of joint child custody and vesting primary decision making power in one party. 2. Joint custody envisions shared decision making and extensive parental involvement in childs upbringing, and in general serves childs best interest.

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