Family Law Outline. Professor Schechter. I. Jurisdiction of Family Law. a. Sources of law. i. State statutes, ii.

Federal law (growing trend), 1. Not only statutes, but federal constitutional law. a. Constitutional law has effected family law through: i. The Equal Protection Clause of the 14th Amendment. ii. Procedural Due Process. iii. Concern that certain activity be free from unwarranted state interference (privacy: historical test). 1. Meyer v. Nebraska. a. Case Summary: i. In the wake of WWII, D, while an instructor at a parochial school, taught German to a 10-year old child who had not yet passed 8th grade, in violation of a Nebraska statute that made it a misdemeanor to do so. ii. Court finds this statute unconstitutional (S.S.). b. Key Concepts: i. The state does have a legitimate interest in the education of a child, but the parent also has an interest in bringing up the child. ii. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is

subject to supervision of the courts. iii. Mere knowledge of the German language cannot reasonably be regarded as harmful. 2. Pierce v. Society of Sisters. a. Case Summary: i. State law dictates that all children attend a public school, but Ps, who run a private school, challenge the law as unconstitutional under the 14th Amendments taking clause. ii. The Court finds for Ps (S.S.). b. Key Concepts: i. The act unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. Rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. ii. There is no question regarding the power of the state to reasonably regulate all schools. However, these schools were not unfit or harmful to the public, and enforcement of the challenged statute

would unlawfully deprive Ps of patronage and thereby destroy their business and property. Ps are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. 3. Personal decisions that garner protection of privacy: a. Marriage, b. Procreation, c. Contraception, d. Family relationships, e. Right to refuse medical treatment, f. Child rearing, and g. Education. iii. Case law. II. Evolution of the Right to Privacy. a. Right to autonomy. i. Inherent in liberty in the due process clause (historical test). ii. Every state has passed laws permitting grandparent visitation statutes. However, the fundamental rights of the parents in upbringing the child is supreme (Troxel). 1. If a child has been deserted or the parent is unfit, the party who takes over care and custody of the child (de-facto parent; use best interest of the child). a. Accepted in Kentucky. b. Contraception. i. Long history of state regulation in this area. 1. Where fundamental personal liberties are involved, they may not be abridged by the states simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose (imposition of strict scrutiny). a. Use of more than the rational basis test to abridge a fundamental personal liberty (zone of privacy). i. Where there is a significant encroachment upon personal liberty, the state may prevail only upon a showing a subordinating interest which is compelling, and the law must be

shown necessary and not merely rationally related to, the accomplishment of a permissible state policy. 1. Not deferential to the state like rational basis. ii. Cases. 1. Griswold v. Connecticut. a. Case Summary: i. Ps gave information, instruction, and medical advice to married persons as to the means of preventing conception in violation of two Connecticut statutes that stated that any person who uses any drug or instrument for the purpose of preventing conception shall be fined $50 and imprisoned for 60 days, and any person who assists, abets, counsels, or commands another to commit any offense may be prosecuted as if they were the principal offenders. ii. Court found this law unconstitutional. b. Key Concepts: i. This law cannot stand in light of the familiar principle that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedom. ii. The present case concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. It concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goal by means having a maximum destructive impact upon that relationship. This law operates directly on an intimate relation of husband and wife and their physicians role in one aspect of that relation. 1. Justice Stewart goes as far as to call this a silly law. 2. The states argument about discouraging extra-marital relations and the prevention of disease can be served by a more discriminately

tailored statute, which does not, like this one, sweep unnecessarily broadly, reaching far beyond the evil sought to be dealt with and intruding upon the privacy of all married couples. a. The case only speaks to married couples, not unmarried individuals. 2. Eisenstadt v. Baird. a. Case Summary: i. D was convicted for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students and for giving a young woman a package of vaginal foam. ii. Ds behavior allegedly violated Massachusetts law that made it a felony for anyone, other than a registered physician or pharmacist acting in accordance with other statutory regulation, to dispense any article with the intention that it be used for the prevention of conception to an unmarried individual. iii. Court found the statute unconstitutional. b. Key Concepts: i. By providing dissimilar treatment for married and unmarried persons who are similarly situated, the statute violates the Equal Protection Clause. 1. Whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike. c. The right to privacy. i. Same-sex relationships. 1. Legislatures may govern societal morals (Scalia in Bowers). 2. Cases. a. Lawrence v. Texas. i. Case Summary: 1. Texas statute makes it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

2. Officers investigated Ps home on a reported weapons disturbance, and observed him and another man engaging in a sexual act in violation of the statute. 3. Court finds for P that the statute is unconstitutional. ii. Key Concepts: 1. The laws penalty and purposes touch upon the most private human conduct, sexual behavior, in the most private of places, the home. The statutes seek to control personal relations that, whether or not entitled to formal recognition of the law, are within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to make these sexually autonomous choices. The state cannot demean homosexual existence or control its destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. a. Goes against Bowers and a states ability to punish such activity because sodomy was not fundamental within the meaning of the Courts precedents under the Due Process Clause. ii. Rights of privacy within the family. 1. A parent is constitutionally entitled to make decisions concerning the care, custody, and control of their children. 2. Intervention by the state into parents rights. a. The child must attend school,

b. The child must be put in certain safety situations (car-seat), c. Parent cannot hire their child out to work if the child is below a certain age, d. Parent cannot sell the child, e. Parent must give the child vaccinations, f. Parent may be forced to give up custody (unfit), i. If the parent abandons the child, ii. If the parent abuses or neglects a dependent child (physical or sexual), iii. Does not supply adequate supervision, or iv. Where a child is facing a high probability of imminent death due to a medical condition or the child has a communicable disease that the parent will not work to alleviate. 3. A parents authority over, and obligations toward, his or her child terminates upon the childs legal emancipation. 4. Most jurisdictions have abrogated parent-child immunity for torts. iii. Issues of death and incompetence. 1. When a person is near death or incompetence, a living will, if in existence and valid, will be instituted. a. However, this may be challenged by subsequent evidence. III. Marriage. a. Breach of promise to marry. i. Damages. 1. A P may recover: a. The monetary and social value of the marriage (expectation damages), b. Expenses incurred in preparation for the marriage (reliance damages), and c. Damages for mental anguish and humiliation (punitive damages). ii. Defenses. 1. Traditional defenses to breach-of-promise claims include: a. Physical and mental defects, b. Unchastity of the P, c. Ps lack of love for the D, and d. Mutuality of decision to terminate the engagement. iii. Currently, marriage is considered a more emotional than economic bonding, so most jurisdictions have abolished the action. 1. Rivkin v. Postal. a. Case Summary: i. P and D never married, but had a child. D had bought a house in which he made P a

joint tenant, but claimed it was so that if anything happened to him his son would be covered. ii. P filed suit when D ended the relationship, claiming breach of promise to marry. The court found for P. b. Key Concepts: i. Although the Tennessee statute goes against the majority that no longer permits the cause of action of breach of contract to marry, P failed to carry the statutory burden of proof placed on persons seeking money damages for a breach of promise or contract to marry. b. Marriage as a contract or status. i. Marriage is a legal status. 1. The rights and obligations do not come out of the agreement, but flow from the state. a. Cannot be modified by individual agreement to marry. i. Can however, vary the effects of divorce or death. 2. However, there is a contract involved. a. In all realities, its both. 3. Marriage usually ended with death, and sometimes for divorce, annulment, or informal desertion. 4. Much more co-habitation today. c. Emotional Infliction of Emotional Distress. i. In order to establish a claim for intentional infliction of emotion distress or outrageous conduct, the P must prove: 1. That the wrongdoers conduct was intentional or reckless; 2. The conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There is a causal connection between the wrongdoers conduct and the emotional distress; and 4. The distress must be severe. ii. Most jurisdictions have gotten rid of inter-spousal immunity, so may likely sue for conduct during the marriage, but certainly after the marriage. iii. Osborne v. Payne. 1. Case Summary: a. P and his wife were experiencing marital difficulties and went to D, their parish priest, for counseling. b. P then discovered that his wife engaged in an adulterous relationship with D, obtained a divorce, and filed suit against D for the tort of outrageous

conduct and that the diocese was liable under a theory of vicarious liability for its alleged negligent training, screening, and supervision of D. P claims as a result of the transgressions, he suffered a nervous breakdown, lost his job, religion, house, job, and wife. c. Court found for P. 2. Key Concepts: a. P failed to present any evidence in the record that D had a history of sexual misconduct involving parishioners or that the diocese had any knowledge that D might conceivably engage in such misconduct. However, there is a material issue of fact as to if this behavior was obnoxious. d. Gifts in contemplation of marriage. i. The court must determine whether the ring was intended as an absolute or a conditional gift. 1. A gift is conditional if it is conditioned upon the performance of some act by the donee or the occurrence of an event in the future. a. Donor must be competent, have intent to give, delivery, and acceptance. b. Marriage is an implied condition of the transfer of title to the ring and, thus, the gift does not become absolute until the marriage occurs. Therefore, an engagement ring is a conditional gift given in contemplation of marriage, and not an inter vivos transfer of personal property. 2. Majority rule states whoever broke off the engagement cannot recover. a. Minority says who broke off the marriage does not matter. The ring should be given back (no fault). ii. Fowler v. Perry. 1. Case Summary: a. P and D were engaged (and the ring was called such), but D broke off the engagement, lost the ring, and kept all the insurance proceeds. b. P filed suit claiming he was entitled to the benefits. c. Court found for P. 2. Key Concepts: a. Court goes with the minority rule (but modern trend) that when an engagement ring is purchased in contemplation of marriage and such engagement does not result in marriage, the person who purchased the ring is entitled to return of it, or, if

the return is impossible, to the monetary value contributed toward the purchase of the ring. e. Alienation of Affection. i. The elements of a claim for alienation of affection are: 1. Wrongful conduct of the D, 2. Loss of affection or consortium, and 3. A causal connection between the wrongful conduct and the loss of affection or consortium. ii. Jones v. Swanson. 1. Case Summary: a. D entered into an adulterous relationship with his high school flame, and P, her husband, sued him for alienation of affection due to the resulting divorce. b. Court finds for P. 2. Key Concepts: a. The gravamen of an action for the tort is enticement, and is based on an intentional tort, not negligence. The acts which lead to the loss of affection must be wrongful and intentional, calculated to entice the affection of one spouse away from the other. In this case, Ds actions were intentional and the evidence shows that the marriage could have been saved if not for his actions. f. Transmission of venereal diseases. i. If a spouse knows or has reason to believe he has contacted a venereal disease and then transmits it, the courts will generally allow a tort recovery. 1. Inter-spousal tort immunity is in the decline, as is parentchild tort immunity. a. Reasons for inter-spousal immunity: i. Maintain peace and harmony of the marital home, and ii. Discourages fraud. 1. Often led to inequitable results. b. In many jurisdictions, courts have allowed for liability to the parent for a childs torts (against agency theory and common law). ii. G.L. v. M.L. 1. Case Summary: a. P filed for divorce and alleged four counts of personal injury alleging that D, her husband, transmitted genital herpes to her during their marriage as a result of an extra-marital affair with sufficient knowledge that he had the disease and denied it.

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2. Key Concepts: a. Where personal injuries are tortiously inflicted by one spouse upon another, it is just and fair that compensation in appropriate circumstances be afforded the wronged and injured party. Thus, a suit will be allowed to effectuate such recovery. There is a range of activity in the marital relationship characterized as special matters of privacy and familiarity beyond the reach of the law of torts because they fall outside the bounds of a definable and enforceable duty and care and are encompassed by a martial and nuptial privilege, but there are exceptions. D cannot simultaneously breach his marital relationship by engaging in extramarital intercourse and claim nuptial immunity for consequences flowing from his own willful and intentional misconduct. The marital privilege of sexual relations does not include immunity to personal injury suits between spouses based upon the transmission of an STD. g. Prenuptial agreements. i. A contract entered into between a man and a woman in contemplation, and in consideration, of their future marriage whereby the property rights of economic interests of either are divided up (on the exam, make sure to try and ad a choice of law provision). 1. The prevailing law in the U.S. was that antenuptial contracts were considered as being made in contemplation of divorce and were void as against public policy (ok if for death). a. However, there is a growing trend of allowing provisions in prenuptial agreements providing for the disposition of property and awarding sustenance alimony upon a subsequent divorce of the parties as not per se invalid. ii. Validity of the agreement. a. For an antenuptial agreement to be valid and enforceable they must be entered into: i. Voluntarily, 1. Look for existence of both parties having legal counsel. a. When an agreement provides disproportionately less than the party challenging it would have received under an equitable distribution, the

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party financially disadvantaged must have an opportunity to consult with independent counsel. ii. Absent fraud, misrepresentation, or duress, and 1. Courts will look at both the terms of the agreement and the process. 2. Court will scrutinize strictly because of the fiduciary nature of the relationship. a. The party challenging that the agreement was entered into voluntarily and without fraud or duress has the burden. iii. There was full disclosure of assets. 1. Look for an attached list of assets. a. The burden of proof is on the party claming validity of the contract to show that there was full disclosure. 2. Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements. a. However, if enforcement is unconscionable, courts will modify property, maintenance, or both. b. Look for change in circumstances (substantial). i. Must keep the spouses at their standard of living. iii. Distribution of property. 1. Separate property. a. Whoever earned the property was permitted to keep it (could have joint control during marriage). 2. Community property. a. All property obtained through the marriage was considered property of the marriage except property obtained through devise or gift. i. Minority would say that all obtained before the marriage was also community property. b. Marital property systems (reform). i. It may be argued that increases in value are attributable to the other spouses contributions (such as allowing the husband to work more hours by being a homemaker),

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or a simple increase in value during the marriage. 1. Subject to equitable division. 3. Cases. a. Gross v. Gross (Ohio). i. Case Summary: 1. H and W entered into a prenuptial agreement. Both had been previously married with children. At the time of the marriage, H has several interests in Pepsi bottling, and W is not experienced in business. H wants his sons to take over his business. 2. The agreement stated that W would receive $200 per month for 10 years in alimony, the house would be sold and split evenly, W would get the property in the home that was not personally Hs, she would get one car, and a trust would be set up for her childrens education. 3. At the time of divorce, H had significantly increased his wealth. W claims that the agreement should be unenforceable. Court finds for W. ii. Key Concepts: 1. Prenuptial agreements containing provisions for disposition of property and setting forth amounts to be paid as sustenance alimony upon a subsequent divorce of the parties are not contrary to public policy. Such agreement are valid and enforceable if: a. They have been entered into freely without fraud, duress, coercion, or overreaching; b. If there was full disclosure, or full knowledge and understanding of the nature, value and extent of the prospective spouses property; and

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c. If the terms do not promote or encourage divorce or profiteering by divorce. 2. However, because of Hs increase in wealth, to require W to return from this opulent standard of living to that which would be required within the limitations of the property and sustenance provisions of this agreement, could well occasion a hardship or be significantly difficult for the former wife. Thus, maintenance may be modified. a. In Kentucky, both property and maintenance may be modified. b. Simeone v. Simeone (Pennsylvania). i. Case Summary: 1. H was a 39-year-old neurosurgeon making $90k per year with assets worth $300k, and W was a 23-yearold unemployed young woman with no assets. 2. On the eve of their wedding, Hs attorney presented W with a prenuptial agreement. Without the benefit of counsel or advice regarding her legal rights by Hs attorney, W signed the agreement. 3. Upon divorce, W claims that the agreement should be unenforceable. Court finds for H. ii. Key Concepts: 1. Courts are reluctant to interfere with the power of persons contemplating marriage to agree upon, and to act in reliance upon, what they regard as an acceptable distribution scheme for their property. A court should not ignore the parties express intent by proceeding to determine whether a prenuptial agreement was, in the courts view, reasonable at the time of its inception or the time of divorce. The present agreement is valid and enforceable.

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c. Lane v. Lane (Kentucky). i. Case Summary: 1. Three days before their marriage, P and D entered into a prenuptial agreement. 2. At the time of the marriage, P worked as a night desk clerk in a hotel making $19k. She had only a high school education. D, on the other hand, was a stockbroker making over $166k. 3. Two children were born of the marriage, forcing P to leave her job. At the time of the divorce, D was making well over $1 million per year. 4. In the agreement, the parties waived their rights under the law to claim maintenance in the event the marriage was dissolved. 5. Court found that this agreement was unconscionable. ii. Key Concepts: 1. The court has embraced the view that prenuptial agreements are not per se invalid as against public policy. However, courts retain the right to analyze such agreements for unconscionability at the time of enforcement. Trial courts have been vested with broad discretion to modify or invalidate prenuptial agreements, and thus may modify or invalidate all or part of a prenuptial agreement where enforcement is unconscionable in its application. This includes cases where the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable. In this case, while a significant disparity in the parties incomes existed at the time of the marriage, this disparity grew exponentially during the marriage in large part because the husband was

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able to concentrate on his career while the wife stayed at home to care for the children and the house. h. Post-nuptial agreements. i. Different states stand in different positions regarding the validity and enforcements of such agreements. 1. Ohio hasn't allowed parties to make agreements dealing with property division, or on death/divorce. a. Can't change legal relationship after married. i. Only time you can make post-nupt is when you have written agreement after marriage that just puts in writing oral agreement before marriage. (Brewsaugh v. Brewsaugh). 2. Kentucky allows for such agreement under the same standards/same extent as pre-nupts. i. Entrance into marriage. i. Eligibility requirements: 1. Age, gender, how closely related. a. Some prevent marriage totally or some just limit who you can marry. b. Some are remedial (can't have more than one spouse). 2. Consent of parties: a. Capacity, consent (voluntary no fraud, force). 3. Formalities: a. License, approved person that can marry you, must go through formalities. ii. There has been expansion in the amount of state regulation. 1. Traditional view: states regulated and could do this because such an important social institution so justified for state to regulate. j. The fundamental right of marriage. i. Under Loving v. Virginia, the Supreme Court stated that the right to marriage is a fundamental liberty under the 14th Amendment. 1. The test of permitting a statute to violate a fundamental right is strict scrutiny. a. When a statutory classification interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by a compelling state interest and is narrowly tailored to effectuate only those interests. i. Not every state regulation which relates in any way to the incidents or prerequisites for marriage must be subjected to rigid scrutiny.

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1. Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed (Zablocki). 2. Cases. a. Loving v. Virginia. i. Case Summary: 1. A black woman and a white man were married in DC, returned to Virginia, and were convicted of violating Virginias ban on miscegenation. The trial judge suspended their one year jail sentences on the condition that they leave the state and not return Virginia together for 25 years. 2. Court found that this statute violated the 14th Amendment. ii. Key Concepts: 1. Racial classifications are subjected to the most rigid scrutiny, and if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the 14th Amendment to eliminate. In this case, there is no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. a. Equal application of the laws to both whites and blacks does not immunize the statute from the very heavy burden of justification which the 14th Amendment has traditionally required of state statutes drawn according to race. b. Zablocki v. Redhail. i. Case Summary: 1. Wisconsin statute provided that resident males having minor issue not in their custody and which he is

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under obligation to support by any court order or judgment could not marry. 2. R was a member of the class because he had a child not in his custody out of wedlock, had not been able to sufficiently comply with the support obligations because he was unemployed for some time, and the child was on public charge. R filed an application for a marriage license with Z, but was denied on the grounds that he could not obtain a court order granting him the requisite permission to marry. 3. Court found this statute violated his fundamental right to marriage. ii. Key Concepts: 1. Since the right to marry is of fundamental importance, and since the classification at issue significantly interferes with the exercise of that right, a critical examination of the state interest advanced in support of the classification is required. a. The statutory regulation at issue here clearly interferes directly and substantially with the right to marry and since the means selected by the state for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained. The state has numerous other means of exacting compliance with support obligations. c. Turner v. Safley. i. Case Summary: 1. Missouri regulation permits an inmate to marry only with the permission of the superintendent of the prison, and provides that such approval should only be given when

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there are compelling reasons to do so (undefined, but usually reserved for only a pregnancy or the birth of an illegitimate child). 2. Court found this regulation unconstitutional. ii. Key Concepts: 1. The almost complete ban on the decision to marry by inmates is not reasonably related to the legitimate penological objectives, and therefore is facially invalid. a. Court disagrees that Zablocki does not apply to prison inmates, who retain those constitutional rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. k. State regulations on entry to marriage as a source of litigation. i. Couple wants to get married challenging a substantive restriction. 1. Claims that the regulation in question violates fundamental right to marry under the federal constitution. a. The test is whether the regulation is a significant interference with the right to marry that is direct and substantial (Zablocki). ii. Spouse v. spouse. 1. Spouse wants out of marriage and seeks to have the marriage declared invalid, or 2. Spouse A seeks divorce and spouse B wants to avoid property division and spousal support obligations because there was no real marriage. iii. Spouse A dies, and Spouse B comes into conflict with a third party who has an economic interest and claims that the marriage was not valid. 1. Usually collateral attacks from the interested party. a. Limits on who may challenge. iv. An American citizen marries a non-citizen nor a lawful permanent resident. 1. A marriage to extend an individual citizen status is a criminal offense (engaging in a sham marriage and improper filing of a federal form). l. Void vs. voidable marriages. i. A void marriage is one that is invalid from inception.

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1. If a marriage is void, then either party or a third party may challenge the validity of the marriage at any time and in any proceeding. ii. A voidable marriage is valid until subsequently declared invalid. 1. If a marriage is voidable, its invalidity can only be asserted by one of the parties and only during the marriage. a. A voidable marriage thus becomes a void marriage. m. Common Law Marriages. i. Private agreement to be husband and wife and holding that out publicly. 1. Only about 10 states allow for these kinds of marriages. 2. If a valid common law marriage exists, then it is treated as a legally binding marriage. ii. Elements of common-law marriage: 1. Capacity to enter into a martial K, 2. Present agreement to be married, a. At common-law, this would often be enough. b. The contract of marriage may be proven either by way of direct evidence which establishes the agreement, or by way of proof of cohabitation, acts, declarations, and the conduct of the parties and their recognized status in the community in which they reside by clear and convincing evidence (Ohio). 3. Cohabitation, and 4. Holding the relationship out to the community as husband and wife for the requisite statutory period. iii. Factors for finding a common-law marriage: 1. Length of the relationship, a. The longer the better. 2. The quality of the relationship, 3. Children born out of the relationship, a. Big plus. 4. Who opposes the marriage and why, 5. A previously invalid marriage ceremony, a. Big plus. 6. Prior ceremony and divorce between the parties, 7. Plans for a ceremonial marriage, and 8. A later ceremonial marriage of one party. iv. Cases. 1. Jennings v. Hurt. a. Case Summary: i. H was a movie star and W was a starving actress. H was already married when they met. ii. The couple moved from New York to South Carolina, which authorizes common-law

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marriages. The two shared a home and bed, but had a very caustic relationship, and did not hold themselves out as married. iii. H said as far as he was concerned they were already married in the eyes of God because of the child. W thus claims she is Hs common-law wife, but H disagrees. iv. Court finds for H. b. Key Concepts: i. The courts in South Carolina are reluctant to declare a common-law marriage unless the proof of such evidence is shown by strong and competent testimony. The words allegedly spoken at the argument do not evince an intent to solemnize a marriage but rather are the kind of words used by one desiring to continue the parties present state of living together (a relationship short of marriage). ii. Ds subsequent divorce does not per se transform this illicit relationship into a common-law marriage, as the party claiming a common-law marriage must show by a preponderance of evidence that the relationship underwent some fundamental change following the removal of the impediment, which P did not do. 2. Nestor v. Nestor (Ohio, where common-law marriage is no longer permitted other than cases grandfathered in). a. Case Summary: i. H and W were not ceremonial married, but she had accepted his proposal. The couple then lived together for several years and engaged in a continuous sexual relationship. ii. H became immobilized by disease shortly before his death. P cared for him until his death, but afterwards his family made a collateral challenge to the marriage to keep her from being an heir. iii. Court found a common-law marriage. b. Key Concepts: i. A common-law marriage is the marital joinder of a man and a woman without the benefit of formal papers or procedures. To enter into such an agreement, the parties must be competent to contract, there must be

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cohabitation as husband and wife, and the couple must be treated as husband and wife and reputed as such in the community and circle in which they move. In this case, the couple established a common-law marriage, so W is entitled to share in the estate. 1. Court permitted cohabitation and holding out to infer the agreement. 3. Vaughn v. Hufnagel (Kentucky). a. Case Summary: i. P alleged she was the common-law wife of the decedent. She was denied administration in his estate, and she appeals, contending that her common-law marriage is valid. ii. P and decedent were Kentucky residents, and went to Ohio, where common-law marriages were recognized, registered at a hotel under his name, and exchanged wedding vows without witnesses or solemnization. The next day they returned to Kentucky with P wearing a diamond ring and the couple continued to live in Kentucky holding themselves out as man and wife. iii. Court would not permit the common-law marriage. b. Key Concepts: i. Kentucky will recognize a common-law marriage where: 1. It is made by parties competent to contract, 2. Followed by cohabitation as husband and wife, and 3. The couple is treated and reputed in the community and circle in which they move as such. ii. Kentucky does not recognize common-law marriage within the boundary of its state, but may recognize one legalized by another state. It takes more than riding across to Ohio River, however, to make such a marriage legal. In this case, P and the decedent were merely visitors to Ohio, and did not become an established part of the community as they were not treated and

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reputed in that community as husband and wife. n. Punitive spouse/de facto marriage. i. Party goes through a marriage and thinks in good faith that the marriage is valid, but for some reason it isnt. 1. Entitled to certain property and rights, but not as much as a valid spouse. 2. Courts are reluctant to invalidate what appears to be an existing marriage. o. Same-sex marriages. i. Most statutes did not put the requirement that only a man and woman marry in their marriage statutes. 1. Some courts (Jones v. Hallahan in Kentucky) circumvented this problem by stating that marriage has always been considered a union of a man and a woman. a. Although man and woman is not expressly stated, it is inherent in marriage itself. 2. Bowers v. Hardwick upheld the states right to punish homosexual conduct, and this was the norm until Lawrence. ii. Goodridge changed this line of thinking (Massachusetts first and only state to validate same-sex marriage). 1. For same-sex discrimination cases, the Court will apply a rational basis test. 2. Civil marriage is a societal institution of the highest importance, and bestows enormous private and social advantages on those who choose to marry, as well as valuable property rights. a. Thus, it has long been termed a civil right, and the Supreme Court has described the right to marry as of fundamental importance for all individuals as part of the fundamental right of privacy implicit in the 14th Amendments Due Process Clause. iii. Cases. 1. Baker v. State. a. Court held that Ps may not be deprived of the statutory benefits and protections afforded persons of the opposite sex who choose to marry. The state is required to extend to same-sex couples the common benefits and protections that flow from marriage. 2. Goodridge v. Department of Public Health. a. Case Summary: i. Ps were Massachusetts homosexuals who wished to marry. Each unsuccessfully

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attempted to obtain a marriage license, but was denied. ii. Ps filed suit, alleging that denial of a marriage license harms them and their children, and constitutes a violation of the state constitution. iii. The court found for Ps. b. Key Concepts: i. The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other hand, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual. m. Incest. a. Disallowed in every state. i. Brother and sister are not permitted to marry, nor are parent and child. 1. Look for degree of blood-relationship (cousins can raise issues). b. Cases. i. In re Adoption of M. 1. Case Summary: a. Adoptive daughter and father engaged in a sexual relationship that was going to create a child. The daughter moved to vacate her parental relationship with her father so they could enter into a valid marriage, but maintain it with her adoptive mother. b. The court permitted the vacation. 2. Key Concepts: a. A final judgment of adoption should not be set aside unless it is in the best interest of the child and adoptive parents and upon the showing of truly exceptional circumstances. The facts in this case clearly constitute truly exceptional circumstances in the best interest of all parties. n. Plural marriage. a. A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

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i. In Reynolds (free exercise) the Supreme Court held that while the government cannot interfere with mere religious belief and opinions, it may with practices, and the practice of polygamy was socially undesirable. 1. The statute cannot simply operate to isolate and punish only that bigamy that results in the religious practice of polygamy. b. Situations in which cases of bigamy can arise: i. Religious practice, ii. Economic practice, or iii. Honest mistake by one party (believing they had ended a previous marriage or that their spouse had died). 1. Some jurisdictions have civil death statutes when a spouse has reason to believe their spouse had been in a situation and didnt survive. a. Surviving spouse goes into court and get a judicial declaration of death, which terminates first marriage and allows them to remarry. i. The court then treats the dead spouse as legally dead. c. Cases. i. State v. Green. 1. Case Summary: a. P, an avowed polygamist, participated in simultaneous conjugal-type relationships with multiple women. b. The state filed an information charging P with bigamy in violation of the statute stating that a person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person. c. The court found for the state. 2. Key Concepts: a. The bigamy statute is rationally related to the furthering of the states legitimate interest and does not violate the Free Exercise Clause of the 1st Amendment of the Constitution. The statute does not attempt to target only religiously motivated bigamy. o. Age requirements. a. States have the right and power to establish reasonable limitations on the right to marry as justified as an exercise of the police power, which confers upon the states the ability to enact laws in order to protect the safety, health, morals, and general welfare of society.

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i. It is reasonable for the state to place constraints on the right to marry where appropriate, especially when the marriage involves a minor. However, there is no litmus test to determine whether a person is mature enough to enter a marriage, and age alone is an arbitrary factor. b. Ability to attack a marriage on account of age. i. Either spouse or a guardian. 1. Third-party attacks are much more difficult. ii. A child may receive a judicial bypass if available in that state. c. Cases. i. Kirkpatrick v. District Court. 1. Case Summary: a. Child is unable to marry in New Mexico because she is only 15 and the state requires that one be 18. b. Nevada allows for marriage of an individual under 18 if they receive permission from one parent. Childs mother consents to the marriage. The father claims that this marriage cannot be valid. c. Court finds the marriage valid. 2. Key Concepts: a. The decision to marry should be primarily in the hands of the individual and with few restrictions. However, in this case, Nevada has provided for exception cases if one parent consents and the court approves as a safeguard against an erroneous marriage decision, which is a valid procedure (judicial bypass). p. Fraud and duress. a. A marriage may be set aside for lack of consent. i. Fraud (or duress) vitiates consent and serves as a ground for annulment. 1. Annulment vs. divorce. a. An annulment declares that no marriage occurred because some impediment existed at the time of the ceremony. i. In the majority, there are no permanent support requirements or property rights following an annulment. b. Divorce terminates a valid marriage. b. Some jurisdictions recognize the tort of fraudulent inducement to marry. c. Cases. i. Blair v. Blair. 1. Case Summary: a. Wife contacted husband, and told him that he was her childs father. The two married, and they had another child.

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b. Wife later filed a petition for dissolution of her marriage to husband, and husband filed a crossclaim for an annulment, claiming that wife had fraudulently represented to him before marriage that he was the sons father, and thereby induced him to marry her (tests showed husband was correct). c. Court found for wife. 2. Key Concepts: a. There was not fraud in this case, because sufficient evidence supports the trial courts conclusion that husband would have married wife regardless of the representation as to the sons paternity based on his long-standing affinity for her and the fact that the second childs paternity would have been sufficient for husband to marry wife, and husband had questions about the sons paternity prior to marriage, and he married her anyway and subsequently adopted both children. q. Formalities of marriage. a. Vary from state to state, but most include, i. A marriage license, 1. Important as a record keeping function. ii. A ceremony, iii. An individual to solemnize the marriage. 1. In addition to obtaining a marriage license, states also require that the couple have their marriage solemnized by an authorized official. b. Cases. i. Carabetta v. Carabetta. 1. Case Summary: a. P and the D exchanged marital vows before a priest, although they did not obtain a marriage license as prescribed by statute. They then lived together as husband and wife, raising a family of four children. b. P filed for divorce, but the trial court held that failure to obtain a marriage license was a flaw fatal to the creation of a legally valid marriage and that the court therefore lacked subject matter jurisdiction over an action for dissolution. c. P now appeals, contending that the marriage should be viewed as valid despite the defect. Court finds for P. 2. Key Concepts: a. In the absence of express language in the governing statute declaring a marriage void for failure to observe a statutory requirement, such a marriage,

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though imperfect, is dissoluble rather than void. The legislatures failure to expressly characterize as void a marriage properly celebrated without a license means that such a marriage is not invalid. IV. Being Married: Regulation of the Intact Marriage. a. Property rights. i. Common Law v. Community Property. 1. Common law/individual property (majority). a. The husband and wife own all property separately. i. Look for who acquired title or who earned the funds to make the purchase to determine ownership. 1. Look for elective share and intestacy statutes (transfer anything by will). b. Wife may have a dower interest. i. Her life estate of 1/3 of any land of which the husband was seised in fee at any time during the marriage. c. Tenancy by the entirety. i. Each spouse has an undivided share, but cannot dispose of the property without the others consent. Upon death, the surviving spouse inherits the whole property. d. UMPA. i. Everything is marital (except gifts), but control rights go by title. Spouses may alter those rights by agreement. 2. Community property. a. The husband and wife own some property jointly. i. Each spouse has a present, undivided, interest in all property acquired by the efforts of either spouse during marriage. 1. Majority allows for the maintenance of separate property acquired before the marriage or by gift/devise. ii. Husband controlled the community property under common law (including the income produced from the community property). b. Common law view of marriage. i. By marriage, the husband and wife were one person at law. 1. The man cannot grant anything to his wife, or enter into a K with her. 2. The husband is bound to provide his wife with necessities by law, and if she contracts debts for them, he is obliged to pay them; but for anything besides necessaries, he is not chargeable (necessaries doctrine).

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a. A necessary is determined on a case-by-case basis depending on the living station of the family at the time. 3. If the wife is indebted before marriage, the husband is bound afterwards to pay the debt. 4. The wife can bring no action for redress without her husbands concurrence. 5. In criminal prosecutions, the wife may be indicted and punished separately. 6. Wife had no right to possess personal property. 7. Husband had the power of disposition over his personal property, and all of his personal property was subject to his creditors, save his wifes necessary clothing. 8. During the marriage, the wife could not enter into Ks except as her husbands agent. a. If one party buys something, the third party may enforce it against the other. i. Actual or implied authority. 9. Upon divorce, custody of the children went to the father unless he was found unfit. ii. Now, spousal obligations are fully reciprocal. iii. Cases. 1. McGuire v. McGuire. a. Case Summary: i. Husband refused to provide wife with money for things like clothes or furniture. ii. Wife sued husband for support. iii. The court found it should not intervene in these circumstances. b. Key Concepts: i. It is the duty of the husband to provide his family with support and means of living-the style of support, requisite lodging, food, clothing, etc., to be such as fit his means, position, and station in life- and for this purpose the wife has generally the right to use his credit for the purchase of necessaries. To maintain an action such as the one at bar, the parties must be separated or living apart from one another. The living standards of a family are a matter of concern to the household, and not for the court to determine. c. Married Womens Property Acts. i. Changes to the common law system:

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1. If a wife earns during the marriage, she maintained ownership and control over the property. 2. Wife capable of bringing a tort action for her own injuries. 3. Custody of children upon divorce went to the mother under the tender-years doctrine. a. Goes against the common law, finding that the burden was to show that the mother was unfit to parent. d. Legal Separation. i. Not a divorce, but the couple is no longer living together. 1. The leaving member gets maintenance, but expenses will increase because no longer living together. 2. In many states, if you separate, then the other party needs only to petition for divorce to have it granted. 3. Courts generally will find a separation agreement binding unless it is unconscionable. a. Must be voluntary signed with full disclosure because of fiduciary duties. b. Requires valid consideration. e. Unmarried couples rights. i. Adults who voluntarily live together and engage in sexual relations are as competent as any other persons to contract respecting their earnings and property rights (Marvin). 1. Overruled Hewitt v. Hewitt, which held that a contract between unmarried people for illicit cohabitation is unenforceable. a. Ohio permits such agreements under Tarry v. Stewart so long as express and not based upon meretricious conduct, and Kentucky under Murphy v. Bowe. i. Look for the remedies for equity. 1. Long-term homemakers have not received much. 2. According to the Family Law Act, property accumulated by non-marital partners in an actual family relationship should be divided equally. 3. A contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services (Marvin). ii. Cohabitation agreements and acceptance of Marvin. 1. Some courts (In re Marriage of Cary) state that a nonmarital co-habitator should be entitled to half the property accumulated during an actual family relationship.

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a. No recognition of fault in the marital situation, so no reason to recognize fault for living together outside of marriage. 2. Some courts (Delzapa v. Delzapa) found that where cohabitation was stable, consistent, or based upon mutual affection, the court will enforce the property agreement, even if kids were mandatory (so sex was involved). 3. Most courts will recognize implied agreements. a. Some courts, in order to afford equity, will give remedies such as: i. Purchase money/resulting trust, 1. Where one person pays the purchase price for property and causes title to the property to be taken in the name of another person who is not a natural object of the bounty of the purchaser. 2. If you directly give someone money to buy something, then presumption is youre not making a gift, youre doing it for yourself and other party has duty to turn it over to you if you request it. ii. Constructive trusts, 1. A trust when there has been fraud, over-reaching, or misrepresentation by one of the parties. iii. Quantum meruit. 1. Payment for services actually rendered where there was a reasonable expectation of payment. iii. Cases. 1. Marvin v. Marvin. a. Case Summary: i. P and D lived together without marrying, and acquired a great deal of property during that time in Ds name. ii. P avers that she and D entered into an oral agreement that while the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined. She claims they also agreed to hold themselves out as husband and wife and she would give up her lucrative career as a

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singer and entertainer in order to devote her full time to D in return for financial support and needs for the rest of her life. iii. The agreement worked for 7 years before D ended the relationship and stopped supporting P. P filed suit to enforce the contract, calming she was entitled to half the property that they accumulated and support payments. iv. Court found for P. b. Key Concepts: i. Equitable considerations arising from the reasonable expectation of continuation of benefits attending the status of marriage entered into in good faith by couples not contemplating marriage is not afforded. However, if such a contract was made by the parties not based upon meretricious conduct, the contract will be permitted if valid. V. Divorce. a. At common law, divorce was very difficult to obtain. i. Over time, divorce has become far easier to obtain. ii. Some states have instituted covenant marriage, which takes away no-fault grounds for divorce and only grants it for circumstances involving fault. b. Fault-based grounds for divorce. i. Adultery. 1. Voluntary sexual intercourse of a married person with someone other than his or her spouse. 2. At common law the burden of proof is on the complainant, but the charge of adultery as a ground for divorce need not be proved beyond a reasonable doubt. The evidence sufficient to prove the charge adultery must be so clear, satisfactory, and convincing as to lead an unprejudiced mind of a reasonable and prudent man to that conclusion. a. The modern trend is that circumstantial evidence required to prove a charge of adultery in a divorce case must show an opportunity to commit the offense, and a disposition to commit it. 3. Cases are split on regarding whether same-sex sexual acts constitute adultery for divorce purposes. 4. Lickle v. Lickle. a. Case Summary: i. P married his wife, and they had three children, who are now adults.

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ii. Ps friend received a commission from the Navy, and while he was in service, P became increasingly intimate with his friends wife. He often went over to her home and stayed until late at night, and they often went on car rides together. They also vacationed together. iii. When the husband returned, the wife refused his advances without explanation, and would not visit him in Chicago when he was summoned there. The husband then began to suspect P, who denied any improper conduct. iv. Ps wife filed for divorce on the grounds of adultery, which was granted despite no actual evidence of adultery. b. Key Concepts: i. Circumstantial evidence required to prove a charge of adultery in a divorce case must show an opportunity to commit the offense, and a disposition to commit it. While opportunity to commit adultery is not in itself sufficient to justify a finding of its commission, in the absence of evidence of a disposition to commit it, such a disposition may be inferred from the conduct of the parties and the surrounding circumstances. ii. Cruelty. 1. Cruel and inhuman treatment is conduct endangering life, limb, or health, or creating reasonable apprehension of danger, or unnatural and infamous conduct making the marital relation revolting. a. The harm need not derive from physical attack by the offending spouse. If a spouses actions cause deep personal misery that has no foreseeable end, a divorce will be granted. 2. The polestar consideration is the intolerableness of the plight created for the non-offending spouse. a. The most common scenario is where one spouse engages in overt physical or verbal actions of such a harsh and continuing nature that the other spouse cannot continue to cohabitate with the offending spouse without threat of physical or mental harm. 3. In order for a divorce to be granted on the ground of habitual cruel and inhuman treatment, there must be proof

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of systematic and continuous behavior on the part of the offending spouse which goes beyond mere incompatibility. 4. Muhammad v. Muhammad. a. Case Summary: i. H and W married in Flint Michigan, and then converted to Islam. They had a child, and then relocated to an Islamic community in Mississippi known as the University of Islam. ii. W claims she only moved to the University in order to attempt to save her marriage, because they were having difficulties back in Flint. iii. At the University, women were forced to submit to their husbands, had mail censored, and were fed only once a day consisting of a limited diet. iv. After the couple had another child, W grew unhappy with the lifestyle, had her mother come to pick her and the children up, and returned to Flint while H slept. v. W filed for divorce on grounds of cruelty which was granted. b. Key Concepts: i. In this case, W was forced to live in an intolerable atmosphere against her will. iii. Desertion. 1. Desertion requires: a. A cessation of cohabitation, b. Without cause or consent, c. With intent to abandon, and d. Continuing for a statutory period. i. Proof of an actual breaking off of matrimonial cohabitation combined with intent to desert constitutes desertion as grounds for divorce. 2. The deserting party loses their right to support. 3. There is such a thing as constructive desertion. a. Virtually leaving all responsibilities within the marriage. 4. Reid v. Reid. a. Case Summary: i. H and W were married. H became a Dr. and also opened up a clinic. He thus became very busy, and W was primarily a

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homemaker and mother to their four children. ii. W became unhappy with the marriage, and decided to leave the marital home unannounced. iii. W filed for divorce, and H claimed that she deserted him, and he thus would not be responsible for support. Court granted the divorce but denied support for W. b. Key Concepts: i. In this case, W legally deserted the marriage and forfeited her right to spousal support. c. Fault-based defenses. i. Recrimination. 1. The doctrine of recrimination is founded on the basis that the equal guilt of a complainant bars his/her right to divorce. a. The complainant must come into court with clean hands. b. The complainants offense need not be the same offense charged against his spouse, but it must be an offense sufficient to constitute a ground for divorce. 2. Reasons for the defense of recrimination: a. Promotes marital stability, b. Deters immorality, c. Protects the wifes economic status, and d. Prevents a poor marriage risk from ruining another marriage. 3. Parker v. Parker. a. Case Summary: i. H and W married, although no children were born of the marriage. W operated a beauty shop, and H a garage. ii. H committed several acts that made W uncomfortable, such as surveillance, violence against her male friends, and probable adultery. iii. W left the home and began a relationship with another man. She then filed for divorce, and H claimed recrimination based on the relationship. The Court granted the divorce. b. Key Concepts: i. The doctrine of recrimination is impractical and fails with the mores of present times. W did not commit adultery during the time the

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parties lived together and cohabitated as man and wife, but only after the separation and dissolution of the marriage relationship. Denial of divorce in the present case under these facts would perpetuate an alreadyexisting bad marriage. ii. Condonation. 1. Under the principle of condonation, a spouse who has once condoned a marital transgression by his or her mate is thereafter barred from using that transgression as grounds for divorce. a. The court should examine the totality of circumstances surrounding a purported reconciliation. i. Factors: 1. Whether the reconciliation and any cohabitation were entered into in good faith, 2. Whether it was at all successful, and 3. Who initiated it and with what motivation. 2. Haymes v. Haymes. a. Case Summary: i. P and D were married and two adult children were born of the marriage. P alleges that D refused to have sexual relations with her, rejecting her repeated overtures. D moved out of the couples home, an act which P maintains was without her consent and without justification. D then began to engage in several adulterous relationships. ii. P filed for divorce, but the parties attempted a reconciliation during which they engaged in sexual intercourse. iii. The reconciliation did not succeed, so P reinstituted the divorce proceeding claiming abandonment. D defended by contending that their intercourse constituted condonation. iv. Court granted the divorce. b. Key Concepts: i. Cohabitation by itself is insufficient to invalidate a separation agreement or an accrued claim for divorce. A short period of cohabitation does not amount to

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condonation of the cruel and inhuman treatment asserted as the basis of a divorce. 1. Public policy favors couples enduring marital disharmony to attempt reconciliation, and thus should not punish via condonation a good-faith attempt. iii. Connivance. 1. Consent to commit a marital fault. iv. Provocation. v. Insanity. 1. Must be incurable. 2. Both grounds and a defense. d. No-fault divorce. i. System differences: 1. Under fault-based systems, marital misconduct is considered in the property division/settlement. 2. Under a no-fault system, martial misconduct is not considered in the property division/settlement. a. Neither party need to be proved the villain. b. Lack of finding fault would prolong an unhappy marriage. c. Look for irretrievable breakdown (sole ground in Kentucky). i. Virtually divorce on demand. 1. If one party wants the divorce, it is almost automatically granted. 2. Some states make it for no review by appeal on a judgment dissolving a marriage. 3. Kentucky will allow for financial fault (looked at with need). ii. State approaches. 1. Some states (Ohio) have added some no-fault elements, while others have completely moved to a no-fault system (Kentucky). a. Ohio has divorce by agreement (mutual consent). iii. Reasons for no-fault divorce. 1. The high divorce rate; a. Divorce should not be made too easy. 2. The adversary process creating hostility, acrimony, and trauma; 3. A need to recognize the inevitability of divorce for some couples and attempt to make the legal process less destructive for them and for their children; and

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4. Charges made by divorced men that the divorce law and it practitioners worked with divorced women to acquire an unfair advantage over former husbands. VI. Financial Consequences of Dissolution. a. Property Distribution. i. Court must evaluate the division of marital assets by the following guidelines: 1. Substantial contribution to the accumulation of the property, 2. The market and emotional value of the assets, 3. Tax and other economic consequences of the distribution, 4. The parties needs, and a. In Kentucky for determining need, see if the spouse: i. Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and ii. 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. 1. Look to the liquidity of the property to finance needs and the threshold test to see if the property satisfies the claiming partners needs at the time of divorce. 5. Any other factor that in equity should be considered. a. Courts would prefer for a clean-break so that the parties do not need to come back into court later. ii. Three systems of division of marital assets upon divorce: 1. Separate property (majority), a. Merely determines title to the assets and returns that property to the title-holding spouse. i. Often resulted in unjust distributions. 1. Allowed the award of lump-sum alimony as an adjustment to property division to prevent unfair division. 2. Kentucky and Ohio. 2. Equitable distribution, and a. How to deal with a division of property under equitable distribution: i. Identify the property, ii. Determine its value, and 1. Determine which spouse acquired the property and how,

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2. Determine if the property is marital or separate (presumption of marital), 3. Flush out any arguments as to who owns the property (is it considered separate?), 4. Look for title and sources of funds, 5. Look at the length of the marriage, and 6. Flush out any arguments as to percentages of the property, and iii. Allocate the specific assets in an equitable fashion. 3. Community/marital property (minority). a. In the majority, you get to keep what you brought into the marriage or received by gift or devise i. Everything else goes into hotchpot. ii. Parties have a veto power over the other in making transactions. b. Look to the contributions (including non-economic contributions) given in order to increase the marital property. iii. The court has the authority to award alimony and child support. iv. Cases. 1. Ferguson v. Ferguson. a. Case Summary: i. P and D married and had two children. P worked both as a homemaker and a beautician, while D was a cable repair technician. ii. P filed for divorce, which was awarded to her on the grounds of Ds adultery. iii. P was awarded custody of the 14-year-old child and $300 a month in child support, the marital home and its contents, interest in Ds pension plan, stock ownership plan, and savings and security plan. She was also awarded $400 a month in alimony and a lump sum of $30k because D had taken some of his assets form the pension plan and hidden them prior to the divorce. b. Key Concepts: i. If contributions toward the acquisition of assets is proven by the divorcing party, then the court has the authority to divide these jointly accumulated assets. In this case, P stayed home and raised the family, giving up

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her ability to work, in order to allow D to accumulate such assets. b. Spousal Support. i. Alimony is neither punishment for the payor nor a reward for the payee in no-fault jurisdictions (majority). 1. Economic status remains the primary alimony focus, although economic misconduct is relevant to alimony awards. a. Factors in considering value of payments: i. Duration of marriage, ii. The ability of the paying spouse to pay, iii. The need for support, 1. Considered in light of the standard of living at the time of divorce. iv. The parties earning potential (including dependent spouse), v. The physical conditions of the parties, and vi. Contribution to the marital assets. ii. Courts may ward one or more of the following types of alimony: 1. Permanent alimony, 2. Rehabilitative/transitional alimony, 3. Temporary alimony, or 4. Reimbursement alimony to either party. iii. It is now uniformly accepted that marriage is a financial partnership, and all property is subject to equitable distribution. 1. There is a presumption in most states of a 50/50 split in the marital assets. a. Fault cannot be taken into account in Kentucky, but can in Ohio. b. Advocating a clean split, so items of future value should be hashed out now. 2. The principal function of alimony is rehabilitation (Rosenberg v. Rosenberg). a. The court may award alimony for an indefinite period of time, however, when it finds that: i. The party seeking alimony cannot reasonably be expected to make substantial progress toward become self-supporting, or ii. The respective standards of living of the two parties will be unconscionably disparate. 3. Property is generally broadly defined. a. Trial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings. i. It is true that the exact amount of the benefits to be received will often depend

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upon whether the employee survives his retirement age, how long he lives after retirement and what his compensation level is during the remaining years of service. 1. But these contingencies are susceptive to reasonably accurate qualification. b. Fringe benefits, tangible licenses. i. Pension plans are sufficiently concrete, reasonable, and justifiable as to constitute a presently existing property interest for equitable distribution purposes. Therefore, unvested pension benefits are not too speculative to be considered property subject to equitable distribution (Bender v. Bender). 1. Look to whether a partys expectation of a benefit will attach to that interest was too speculative to constitute divisible marital property. 2. Ways to value a pension: a. Present value and lump sum, b. Specific share when received, or c. Defer distribution until time of receipt. 3. May be paid out in reference to a state Qualified Domestic Relations Order (QDRO). a. A right to assignment of pension benefits. c. Not professional licenses (In re Marriage of Roberts). i. A degree is not marital property because it is an intangible which is personal to the holder. It is a piece of paper and has no real value except for what the holder chooses to pursue with it. Potential worth is dependent upon choice and availability of work, whether the holder is good at what she does, or a myriad of other potentialities that makes valuation too uncertain. d. Generally, property acquired before the marriage will be considered separate, while that acquired during the marriage will be considered marital property subject to equitable distribution.

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i. Exceptions for separate property becoming marital: 1. Gifts (an anniversary gift), 2. Mingling (can no longer trace back), 3. Increase in value due to marital funds or contribution of marital efforts by either party, 4. Property excluded by agreement, and 5. Property acquired after separation. ii. When property is paid for over a period of time, it is deemed to have been the subject of a continuing acquisition. 4. The sex of the parties should have no bearing on the division of marital property or on the allowance or prohibition of maintenance (Michael v. Michael/Orr v. Orr). a. Two guiding principles: i. Property division should reflect the concept of marriage as a shared enterprise similar to a partnership, and ii. It should provide future support for the economically dependent spouse. b. Maintenance is awarded when one spouse has detrimentally relied on the other spouse to provide the monetary support during the marriage, and is appropriate where there is substantial evidence that the party seeking maintenance will or should become self-supporting. iv. Changing circumstances. 1. The primary standard to determine whether or not a trial court should modify an order awarding alimony is a substantial change in circumstances which have substantially impacted upon the financial resources and economic needs of the parties subsequent to their divorce. A factual investigation should be held into the financial circumstances, income, and expenses of the support recipient, including contributions in money or in kind by the cohabitant, in order to determine the recipients continuing need, if any, for support (Lucas v. Lucas). a. Maintenance normally automatically terminates upon the recipients remarriage. i. However, unlike remarriage, cohabitation does not result in the accrual of property rights or legal support obligations. ii. In the discretion of the court, an award of spousal support may be reduced or

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terminated upon specific written findings by the court that since the granting of a divorce and the award of spousal support a de facto marriage has existed between the spousal support payee and another person. v. Cases. 1. Mani v. Mani. a. Case Summary: i. D was a college graduate and half-owner of a board-walk business. P was also a college graduate who taught pre-school and aided P in his business during the summers. P also received valuable gifts from her father. The couple had no children, quit the summer business, and went into retirement, living in a lavish house and having an extravagant lifestyle almost exclusively paid for by Ps investment income. ii. During this retirement, D dabbled in realestate, but did not devote much effort and made little money. iii. P found D was having an affair, and filed a complaint for divorce, alleging adultery and extreme cruelty. iv. The court found that D could receive alimony. b. Key Concepts: i. In cases in which marital fault has negatively affected the economic status of the parties it may be considered in the calculation of alimony. To the extent that the marital misconduct affects the economic status quo of the parties, it may be taken into consideration in the calculation of alimony. Where martial fault has no residual economic consequences, it may not be considered in an alimony award. There is a narrow exception for egregious fault. In this case, there was no allegation that Ds marital fault had any economic consequences or that it was in any way egregious. c. Child support. i. Considerations for the determination of the appropriate level of support: 1. The reasonable needs of the children,

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a. Any assessment of the childs reasonable needs should also be upon the parents financial ability to meet those needs and the standard of living during the marriage (Kentucky). i. No not look at reasons of marital fault. 2. The standard of living enjoyed by the parents, 3. Financial resources of the child, 4. Physical and emotional condition of the child and his/her educational needs, and 5. The mathematical projection of the child support guidelines. a. In Kentucky, the child should get the amount they would have gotten had the parents remained together (if father makes 75% of the income, then father must pay that amount). ii. Parents have no obligation to support their children post-majority (Curtis v. Kline). 1. Exception if there is a serious medical issue. 2. College education within a separation agreement. a. When the age of majority decreased from 21 to 18, a parent no longer became obligated to pay college educational expenses. iii. Modification of child support. 1. Change in circumstances. a. A court may modify child support prospectively if material or substantial changed circumstances warrant an increase or decrease. i. Must show: 1. Substantial change, and a. Burden on the party claiming a significant change. b. Supposed to be unanticipated at the tie of agreement. 2. The best interest of the child. b. Significant changes: i. Remarriage and new families. 1. Non-custodial parents must continue to contribute to the support of their children from their first marriage notwithstanding their obligation to support children born during a subsequent marriage (Pohlmann). 2. It is not appropriate for the state to punish the children of a second marriage because their parent was involved in a previous divorce.

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ii. When a marriage terminates, the obligation to support step-children ceases, unless: 1. There is actual adoption (becoming a legal parent), 2. Express agreement to further support the children, 3. Equitable adoption (promise to adopt that was never fulfilled), or 4. Promissory estopel. c. Employment changes. i. Voluntarily reducing ones income may not justify a modification of child support (Olmstead, KRS 211). 1. It was permissible for the court to consider career change in determining the issue of voluntary and unreasonable underemployment, as well as the impact on the child. a. May look to see if the parent is voluntarily not working at his full capacity. d. Criminal non-support. i. The traditional approach: 1. Obligee could initiate judicial proceedings for enforcement. a. Remedies included: i. The imposition of a trust on the obligors property; ii. Reducing past-due payments to a money judgment, followed by a lien against the obligors real estate; iii. Requiring the obligor to post security or bond; and iv. Garnishment or assignment of the obligors wages or income. 2. Congressional intervention. a. Congress imposed on state welfare agencies responsibility for child support enforcement as a

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condition for receiving federal funding. i. Income withholding, ii. Tax refund interceptions, iii. Automatic seizures, iv. Administrative procedures, and v. License and passport suspension. ii. In view of the suffering children and single mothers must endure when their noncustodial parent intentionally refuses to pay child support, some legislatures have sanctioned the crime. 1. In Oakley, not permitting a father to procreate until he is able to pay his child support payments for current children does not violate his fundamental right because such a statute is narrowly tailored to a compelling government interest. 2. Issues for deviation in Kentucky (KRS 403.211): a. Unjust or inappropriate. i. Extraordinary or medical/dental needs, ii. Extraordinary medical needs, iii. Parents extraordinary needs, iv. Independent financial resources of the children, v. Combined monthly adjusted gross income of the parents, vi. Agreeing outside of the guidelines, and vii. Any similar factor of extraordinary nature (courts discretion). iv. Jurisdictional limitations on establishing awards. 1. In order to maintain an action in a state (including awards), there must be sufficient minimum contacts (Kulko). a. Availing yourself to the benefits and protections of that state. b. Domiciliary requirement or long-arm statutes. VII. Child custody. a. Most courts now use the best-interest-of-the-child standard. i. Factors (uniform marriage and divorce act): 1. The wishes of the childs parent or parents as to his custody, 2. The wishes of the child as to his custodian,

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3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the childs best interest, 4. The childs adjustment to his home, school, and community, and 5. The mental and physical health of all individuals involved. a. The list is not all-inclusive. b. The tender years presumption (Devine v. Devine). i. When dealing with children of tender years, the natural mother is presumed, in the absence of evidence to the contrary, to be the proper person to be vested with custody of such children. 1. All things being equal, the mother is presumed to be best fitted to guide and care for children of tender years. a. The tender years doctrine represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex (Devine v. Devine). i. Opposite at common law (now mostly repudiated, although Kentucky will use in close cases). ii. To rebut this presumption, the father must present clear and convincing evidence of the mothers positive unfitness. c. Race (Palmore v. Sidoti). i. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody. 1. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause. d. Religion. i. The Due Process Clause protects certain fundamental rights and liberty interests, including the right of a parent to direct a childs education and upbringing. 1. May be taken into account under the following circumstances: a. If the religion would prevent medical care, i. Look to see if there is an alternative way to get the necessary care through a guardian instead of taking custody from the most qualified candidate. b. If the religion advocates corporal punishment, or c. If there is support within the organization. ii. Sagar v. Sagar.

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1. Case Summary: a. During a divorce proceeding between two devout Hindus, Father moved the court for permission to perform a Hindu religious ceremony upon the couples young daughter that involved shaving her head. The Mother protested this action. b. Court found that Husband could not perform the ceremony. 2. Key Concepts: a. A court is justifiably loath to order a restriction on either parents fundamental rights to free exercise of religion and to determine the childs religious upbringing and is constitutionally limited in doing so unless there is a compelling state interest such as preventing demonstrable physical or psychological harm to the child. Here, the Father failed to demonstrate a compelling state interest for performing the ceremony on the child. Harm to the child from conflicting religious instruction or practices, which would justify such a limitation on a parents right to freedom of religious expression or practice should not be assumed or surmised, but must be demonstrated in detail. Absent proof either way, the order here is a narrowly tailored accommodation that intrudes least on the religious inclinations of either parent and is compatible with the health of the child. i. A court may not examine the truth behind a persons religious beliefs, but an inquiry into the sincerity of a professed belief is constitutionally appropriate under the 1st Amendment ii. For the court to issue an order upholding the Fathers fundamental right to direct that the ceremony be performed upon the child would repudiate permanently the wifes corresponding right to direct that ceremony not be performed. e. Sexual orientation. i. Marital fault should not be used as a sanction in the custody decision, nor should differences in religion, personal values, and lifestyles be the sole basis for custody decisions (Fulk v. Fulk). 1. In the fault era, sexual immorality in the form of adultery or cohabitation often resulted in custody denials because the court deemed the guilty party unfit. ii. Three approaches to same-sex custody disputes:

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1. Homosexuality constitutes an irrebutable presumption of unfitness (the per se rule), 2. Homosexuality evokes a rebuttable presumption of unfitness and requires that the parent prove the absence of harm (absent such proof, the presumption of unfitness applies), or 3. The parents sexual orientation must have, or will have, an adverse impact on the child in order to lead to a denial of custody (the nexus approach). iii. Gay and lesbian parents face restrictions on, or loss of, their visitation rights. 1. Such restrictions frequently take the form of prohibitions on gay and lesbian parents associating with a same-sex partner in the presence of the child. f. Careers. i. Maternal employment sometimes plays a role in the application of the best interests standard (Rowe v. Franklin). 1. A judges discretion is limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child, as opposed to a determination of which lifestyle choices made by a parent are correct. 2. Generally the relative wealth of the parties is not decisive unless one parent is unable to provide adequately for the child. g. Domestic violence. i. In awarding custody and granting rights of visitation, the court shall consider evidence of domestic violence, which creates a rebuttable presumption that a parent who has committed domestic violence may not be awarded sole or joint custody of a child (Peters-Riemers v. Riemers). 1. This presumption may be overcome only by clear and convincing evidence that the best interests of the child require that parents participation as a custodial parent. 2. The fact that the abused parent suffers from the effects of the abuse may not be grounds for denying that parent custody. ii. Many state statutes have friendly parent provisions mandating that courts favor a custody award to the parent most likely to maintain the childs relationship with the other parent. 1. ALR says maintain the situation as close to it was (proportionality) during the marriage. 2. There is a strong presumption that litigation is bad for the child. h. Joint custody.

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i. An award of joint custody gives both parents legal custody of the child. This means that they share responsibility in making major decisions affecting the childs welfare. It also gives both parents physical custody of the child. This means that each is entitled to the companionship of the child over periodic intervals of time. 1. Legal custody confers responsibility for major decision making (upbringing, health, welfare, and education). 2. Physical custody determines the childs residence and confers responsibility for day-to-day decisions regarding physical care. a. Under sole custody, one parent has both legal control and physical custody, while the other has visitation rights. ii. Approaches to joint custody: 1. Some states create a presumption of joint custody (parental agreement is a prerequisite). 2. Other states have a preference for joint custody (this case). 3. Most states make joint custody one option in the best interest determination. i. Visitation. i. There is almost an absolute right to visitation by the non-custodial parent, just so long as the child is not endangered.

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