Professional Documents
Culture Documents
I. Answer
II. Legal Explanation
1. Issue
2. Law (Herein Are the Relevant Rules of Law and More Including
Statutory
Interpretation)
3. Application (of Law to Facts)
4. Purpose (, Principle, and/or Policy)
5. Analogy (to at Least Two Cases from the Reading Assignments)
6. Conclusion (A Very Brief Summary of the Essence of the Legal
Argument)
Course Themes
Tension b/w private ordering and state supervision of family life
Focus on larger context in which family law matters arise
Gender issues
Growing importance on ConLaw in family matters
Family Law Changes over the years in response to major social shifts
More divorce
More same sex parents
More kids out of wedlock
More women working
Contraception/privacy laws
More cohabitation
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Standards of Analysis
A. Standards of Analysis
1. Strict Scrutiny
i. Ends – Government Objective Involved
a. Compelling
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Necessary
b. Narrowly Tailored
iii. Examples
a. Race
b. Religion
c. Ethnicity
2. Intermediate Scrutiny
i. Ends – Government Objective Involved
a. Important
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Substantially Related
iii. Examples
a. Gender
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3. Rational Relationship
i. Ends – Government Objective Involved
a. Legitimate or Permissible
ii. Means – Relationship Between Ends and How Ends
are Accomplished
a. Rationally or Conceivably Related
iii. Examples
a. Familial Status
b. Age
c. Disability
d. Sexual Orientation
e. Wealth
I. What is a family?
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Held
Supreme Court struck down a law barring the use of contraceptives by
married couples
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Cruelty
Held
Wife gets a divorce on ground of cruelty.
Not as strict as Benscoter
Facts
Wife wants a divorce on the grounds that:
o Husband threw her out of the house.
o He threatened her.
o He habitually treated her coldly.
2. Adultery
To prove adultery, the circdumstantial evidence must clearly establish:
a. A disposition on the part of the defendant & the paramour to commit
adultery and;
b. An opportunity to commit the offense.
3. Desertion
Crosby v Crosby 1983 pg 363
Held
The law is unconstitutional b/c it violates EP for women, so they didn’t
look at the fault issue here
Facts
Voluntary separation by one spouse from the other with the intent not
to resume cohabitation without justification or consent from other
spouse
But; state laws requiring a woman to move wherever the husband
chooses to live violate the gender equality aspect of the EPC
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Constructive desertion
Acts that fall short of physically leaving marital home
o 1992 VA case found constructive desertion
Ws willful withdrawal of sex w/o just cause; would not
do Hs laundry, cleaning, meals etc
2. Connivance
When one souse procures or consents to the other spouse’s commission
of marital fault
o Innocent spouse petitions for fault based divorce
o Party allegedly at fault may defend conduct
Asserts that he would never have acted without…
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Held
No divorce. The husband failed to "protect" his wife by firing the
chauffeur.
A spouse may not participate in a course of conduct leading the other
spouse to commit an act, which is a fault ground for divorce.
Facts
The husband wants a divorce on the ground that the wife was sleeping
with the chauffeur. The husband left the house several times at night to
facilitate the adultery. Racist overtones thru case
Court recognized connivance and said if H sees what a
reasonable man would not permit to avoid the danger, then
he implicitly consented, no divorce granted
Connivance defense successfully raised
3. Condonation Defense
If you know about the spouses affair and keep living with them you can
say that the adultery was condoned and is no longer an adequate reason
for divorce
If they do it again, it is revived
Can be express or implied
Spouse is essentially on temporary probation
4. Collusion Defense
When both parties collude to bring about a bad act upon which one of
them will bring a petition for divorce
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No-Fault Divorce
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These two cases together show that, yes, you can contract divorce, but you
can’t add law to a no fault state, so this is contrary to CA’s public policy
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Held
Trial court erred in ruling that a wife can collect for negligent infliction
of emotional distress in a divorce proceeding, as the NIED is not
recognized in the state of Texas.
However, the Court expressly adopts the tort of intentional infliction of
emotional distress and that the tort can be asserted in a divorce
proceeding.
When the tort action is brought in a divorce proceeding, a spouse cannot
recover both tort damages and a disproportionate division of the
community estate based on the same conduct.
Issue
Can IIED be grounds for a divorce? YES
Facts
In her divorce settlement, Sheila Twyman won $15,000 for negligent
infliction of emotional distress.
Her husband William tried to emotionally coerce his wife into engaging
in sadomasochistic bondage activities with her, even after she told him
she was uncomfortable with such activities because she had been raped
a knifepoint before their marriage.
Whether cause of action (COA) for abuse can be brought in divorce action
W amends divorce petition to assert claim for IED
o Doesn’t specify whether intentional IED or NIED
o TX supreme court held on same day of issued opinion that no
COA for NIED
o Standard for intentional torts
Intentional, reckless, extreme and outrageous, ED severe,
Recognized IIED tort
Holds
o IIED May be brought by spouse in context of divorce action
o Judge must make sure that prop award influenced by a finding of
fault is not enhanced by recovery in tort for the same misconduct
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Is State imposing the cost? Could argue no, b/c not every case will entail
costs. State has important interest in regulating the terms on which divorces
are granted. Could argue yes and say only real justice can occur if you have
access to the courts. The practical effect is the same as Boddie, b/c the state
reqs do cause the costs
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year residency requirement, She only lived there a month when she
filed
Is state trying to affect moral climate via residency requirement?
Are they trying to save their reputation
Local norms via residency requirement
Difonzo pg 421
Discusses the evolution of divorce
Amato pg 425
Thinks divorces should be harder to get. Require conceling etc
III. PARENTING
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Custody Definitions
Sole or Joint
Physical and Legal
o Physical
Parent has right to have child live with
Joint physical: kid spends significant time with
both
o Legal
Right and obligation to make decisions about child’s
upbringing
Schools, religion, medical care
Visitation or Not
o Sole physical custody with visitation
Child lives mostly with one and visits the other
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• No.
(1) The presumption may hurt the best interests of the child.
(2) It reinforces the stereotype of women as child rearers & males as
irresponsible.
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Facts
H is Native American boozer who used to beat the wife and ignore the
kids; he got custody, he says kids will be discriminated against if they
leave the family farm; he wants them to stay involved with the tribe etc
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The court barred the father from sharing his religious beliefs, praying,
or studying the Bible with his children if those activities would cause
the kids to reject their mother or their Jewish identity or cause them
emotional distres
Note
A court-appointed doctor found that the father's actions -- cutting off
his son's payes (the curls customarily worn by Orthodox Jewish males)
and telling his children that anyone outside the fundamentalist faith was
"damned to go to hell" --caused mental and emotional harm to the
children
Issue
Standard of Review
The plaintiff was required to demonstrate "in detail" that exposure to
the defendant's religion caused the children "substantial injury, physical
or emotional, and [would] have a like harmful tendency for the future."
We uphold the judge's factual findings unless they are clearly erroneous
; we review her legal conclusions to ensure they are based on correct
legal standards.
Facts
Dad believes Jesus Christ and that those who do not accept the Boston
Church of Christ faith are "damned to go to hell" where there will be
"weeping and gnashing of teeth."
The defendant testified that he would like his children to accept Jesus
Christ and that he "will never stop trying to save his children."
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Most courts will consider the wishes of the child as to his custodians as
described in § 402 of UMDA. However, this broad language is tempered by
the court’s discretion to determine whether the child has sufficient maturity to
express a meaningful preference. Teenagers especially are consulted.
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Child is not a party and there is debate as to whether child has a right to a
day in court.
There is a great deal of concern as to the stress and strain this puts on the
child.
In this case, court determines that where child’s wishes were sufficient,
they could tip the scales in favor of one parent or another.
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Held
Court would not put down a bright line rule, but instead said case by
case; here it was okay for atty to advocate differently from GAL
When the court has appted atty and GAL in a dissolution action, the
atty for the child may advocate a position different from GAL as long
as the trail court determines that it is in BIC to permit such dual
conflicting advocacy
The trial court is best to make this determination b/c they can hear both
sides
Issue
Can an atty representing a minor child in connection with custody
advocate a position that is contrary to that of the GAL? Does this
conflict with RPC that says atty must advocate position of GAL
Facts
Child has history of emotional, psychological and developmental
problems
H moved out; boarder moved, Norman, in and now will marry W
Court appt child atty; W was a nurse; kid got broken leg while Norman
was babysitting and W at work
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o Stability
Issue
Utah uses the tender years doctrine as a tie breaker
Facts
Married 12 yrs; Two sons ages 12 and 9; older wanted to love with dad,
younger felt the same re both
Social worker said joint custody
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3. Joint Custody
a. Joint legal custody: Not necessary for parent to be living with kid, but must
be consulted for kid's major life decisions.
b. Joint physical custody: Kid has to spend a certain amount of time living
with each parent.
c. Joint residential custody.
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Issue
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Facts
Court first gives custody to mom; 4 years later changes and gives to dad
Parents are often convinced that if the other parent gets the kids, they
will suffer irreparable harm.
3 types of experts in this case
o Suicide experts
o Parenting experts
o Joe Goldstein: an expert on parent-child separation.
(Propounder of the psychological parent theory)
Says:
Ex. in Rose, Jason (the kids) had been w/his dad for one
year. This is a long time in a young child's life.
2. Modification – Relocation
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Facts
WA statute, any person can petition for visitation rights at any time –
grant if in BIOTC
a. Fathers
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Father gets rights only if had relationship with the kid first in a reasonable
amount of time
This is unlike Stanley where parents had lived together after baby born
Held
Mere biology, without more (like a parent-child relationship) does not
give the unmarried, biological father of a child the right to a hearing to
contest his child's adoption.
No DP violation
o The right to receive notice was completely within the father's
control. He needed only to mail a postcard to the registry. The
father's ignorance of that requirement was not a sufficient reason
for criticizing the law itself.
Dissent
State had actual notice of his existence; biological connection important in
determining nature of liberty interest
Issue
Were the father’s DP rights violated when he was not contacted when
his natural child was put up for adoption? no
Facts
A child is born from unmarried parents. The mom marries another man.
The "new father" wants to adopt the child. The biological dad asserts
his parental rights. The Sup Ct. strikes down the dad's claim.
Father did not enter his name in New York's "putative father registry,"
which would have entitled him to notice of the adoption proceeding
Although the father had lived with the mother before the birth and
visited her in the hospital when the child was born, he was not on the
birth certificate and paid no support.
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The trial court ultimately denied the petition for joint legal custody,
however, finding that there were no equitable reasons supporting the
application, V.C. failed to prove that M.J.B. was an unfit parent and
that V.C. lacked standing to make the petition.
Facts
Certification was granted "to determine what legal standard applies to
a third party's claim to joint custody and visitation of her former
domestic partner's biological children, with whom she lived in a
familial setting and in respect of whom she claims to have functioned
as a psychological parent."
V.C. concerned a lesbian couple where one of them, M.J.B., was
artificially inseminated and gave birth to the subject child
Both were very involved with birth, lived together, people at hospital
considered both the mother
Lived together, got married, both called some form of mom, both sets
of grandparents recognized, started adoption procedures
The split, there was visitation, then the birth mother stopped that and
stopped taking money from the other
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Note that Titchenal thought should couldn’t adopt the child b/c of some
statute
Issue
Facts
Plaintiff and her former same-sex partner decided to raise a family
together. The former partner (Dexter) legally adopted a child and they
raised the child together. After the 11 year relationship ended, there was
a dispute over visitation. A superior court ruled that it had no
jurisdiction to hear such a claim as the plaintiff had no legal relationship
with the child. The Supreme Court of Vermont upheld this ruling.
Vermont courts have not granted custody or visitation rights to the non-
biological parent of a child. Co-parents in a civil union, however, are
entitled to equal parental rights for children born during the civil union.
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PP
Trial court awarded sole legal and physical custody to birth mother;
visitation was up to the birth other; judge said that P had failed to meet
her burden of proving de facto status; specifically found that Ps efforts
were not equal in quality/quantity and child would not suffer irreparable
harm from the severing of his contact with P
Also said no standing to bring claims for visitation or support order
Issue
Can a person who is neither the biological nor adoptive parent of a
minor child may assert custody and support rights as a de facto parent?
If and to what extent court should recognize estoppel principles as
creating parental rights where the party claiming such rights is neither
biological nor adoptive parent of child and does not meet the criteria of
a de facto parent
Did the trial court apply erroneously narrow standards for determining
de facto parent status, that the defendant is estopped by her behavior
during the relationship and her statements during the litigation from
asserting that the plaintiff is not the child’s de facto parent
Facts
Same sex partners agree to have babies with same sperm donor. One
goes thru the in vitro first and has a baby; the other was going to adopt,
but partner 1 never filed the paperwork, even when nagged
The other is the working parent for the first year, works and travels a
lot; the one that had the baby feels like she is going it alone
They split because the other works so much, and both want parental
rights to child they agreed during their relationship to have and co-
parent
Separated when kid was 18 months
a. UCCJA 1968
Since 1984, in effect in some form in every state
2 bases of jxn
o Home State
o SCSE: significant connection and substantial evidence
A state with jxn may decline to exercise if it determines
o It is inconvenient forum AND
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Sec8 says you can decline to exercise jxn over initial custody proceeding if
child is wrongfully taken from home states (wrongfully defined under state
law) and may not modify the Ohio decree of mother unlawfully took the child
from father
Full faith and credit clause requires states to give nationwide recognition and
enforcement to final judgments of other states
Custody decrees are not considered final judgments b/c the court retains
jxn to modify in the BIC until they turn 18
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the Louisiana decree invalid and the California decree valid, and
enjoining the enforcement of the Louisiana decree. The court dismissed
the complaint and the Court of Appeals affirmed on the ground that
petitioner had failed to state a claim upon which relief could be granted.
IPKCA
US federal law providing criminal sanctions in support of Hague
Convention (Us v Amer)
ICARA
International Child Abduction Remedies Act
US federal law providing procedures for implementation of the Hauge
Convention in the US (Alonzo)
UCCJA
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Facts
Father took child from Sweden to US (Utah) without mom’s permission
Mom filed a Hague petition seeking the child's return to Sweden and to
determine habitual residence and wrongful removal
She took the child back to Sweden violating court order and was found
in contempt
The father then filed a Hague petition in Sweden for return of child to
the United States.
Mom filed to dismiss her district court petition
The District Court, denied her motion, and subsequently ordered the
child's return to United States
The Court of Appeals held that district court abused its discretion in
denying the motion to dismiss solely on the basis of the mother's
contempt of its order not to remove the child, and dismissal of the
petition was warranted.
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6. Enforcement of Custody
Sanctions for interference by one parent with another parent’s lawful custodial
rights include
Damages in tort (Wolf)
o For custody, not visitation
Change in custody (Henrickson)
Criminal conviction (Amer)
o See also state statutes eg LA, AZ, CA
Sanctions for failure to pay child support
o Can’t link to visitation (Farmer)
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Affirmative acts by the mother, Joan, to keep the child away from the
father and against court orders shows actual malice and punitive
damages are allowed (she gave daughter means to get away from the
dad)
When one party has primary physical custody, there is an action
Distinguishes b/w legal and physical custody
Issue
Can Husband sue for tortuous interference with custody when mom had
physical care custody? YES If so, are punitive damages available?
YES (Woods case) need to show willful and wanton conduct Were the
damages excessive? No, three years of not seeing your child plus atty
expenses is worth 25K
Facts
Tim and Joan are in custody battle over Ashley (now an adult)
Court award sole custody to Joan and modified to joint later tho primary
physical care to Joan
Tim appealed; reversed and he got physical care custody in Iowa
Ashley moved to Arizona with Joan
Tim got habeas decree and got Ashley back for a month and a half when
she flew back to AZ
Joan petitioned AZ court for custody and they refused b/c Iowa had jxn
Joan filed in IA next and both she and Ashley went there to testify;
court told them to stay in IA and they agreed, but left and went back to
AZ
Court denied her petition and gave custody to Tim
Tim filed civil suit for tortuous interference; joan didn’t appear but her
atty went and moved to dismiss for failure to esatlbish prima facie case
(denied)
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H wants to use affirmative defense that the children would have been
exposed to psychological harm and that the Hague convention allows
him allows him to argue that it is against the children’s rights to deny
them an Islamic upbringing
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County doesn’t want the kids; Guardian Mueller spends time with
father and the trial court decides that Diane is the more diffucult parent
and defiant and that Mark the husband should get the kids
Parent by Estoppel
Co-parenting agreements prior to birth
o Lived with child since birth
o Full and permanent parental responsibilities
o When in BIC you will be named parent by estoppel
Co-parenting after birth
De Facto Parent
If you don’t qualify as legal parent or by estoppel, you can try this
Requires
o You live together at least 2 years for reasons other than financial
compensation AND
o Have to have the agreement of the parent to form parent/child
relationship, OR
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PROPERTY DIVISION
UMDA pg 697
Section 307 Disposition of Property:
Alternative A and alternative B
Alt A
o Hotchpot approach to marital property
Equitably apportion
Property and assets
o Belonging to either or both, however
and whenever acquired
o Whether title is in one name or both
Applies e.g. MT, CT, IN
Factors for Equitable apportionment (broad
discretion to judge)
Duration of marriage
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Prior marriage
Antenuptial agreement
Age, health, station, occupation
Amount and source of income
Vocational skills
Liabilities
Needs
Custodial provisions
In addition/in lieu of maintenance
Future acquainting of assets and income
Alt A and B
o Both alternatives
Property divided w/o regard to marital misconduct
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As a result, when dividing appreciated separate property, the court must divide
the appreciation into two classes. Appreciation caused by marital
contributions, known generally as active appreciation, is marital property.
Appreciation caused by inflation, market forces, or the efforts of third parties,
known generally as passive appreciation, remains separate property.
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Facts
NJ statue says dissipation in value of MP considered in equitable
distribution
Here, debt belongs to gambler
Vocabulary
Vested
o When Ee discharge doesn’t forfeit benefits
Non-vested
o Contingent on continued employment
Mature
o When Ee on retirement has unconditional right to receive
payment
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Non-matured
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o Partnership
Alimony: Cases
Facts
o Couple married 70 months; spousal support terminated at 58 months by
court order; she is permanently disabled from accident 2 years after
separation; the infection from dental work; couldn’t bartend anymore;
needed rehab; head doctor said h=she had brain damage.
o Short marriage, no kids, disability happened after split
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Issue
o Standard of living is higher than reasonable needs here. What to do?
Facts
o Married 20 years; H has to pay 2K/ month. He says wife’s reasonable
needs are met; He says gives W income higher than her reasonable
nedds
o Duration relates to:
o (1) Financial need arising from the marriage
o (a)Courts believe that the longer a person is married, the more plausible
it is that her financial disparity is attributable to the marriage.
o (b) Also more plausible that spouse has benefited from homemaking
labors that gave rise to financial disparity
o (i) See Clapp, which discusses the right of both parties, after a long
marriage, to maintain the marital standard of living
o (ii) And Wilson, where court denied support to wife who was disabled
in an accident. Because marriage only lasted two years and disparity
not attributable to marriage, no support even though husband able to
pay.
o (c) The older one gets, the more they rely on the marital commitment
because life course becomes harder to change, and the prospects of
finding a new spouse decline
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o The statute imposes upon the movant a two-pronged burden: first, the
movant must prove that the party receiving alimony was living with
another person and second, the movant must prove that the living
arrangement caused a change in circumstances altering the financial
needs of the support recipient.
o Here, with an agreement in place, the only thing the trail court should
have done is assess if there was cohabitation, and then enforce the terms
of the agreement that the parties entered into and the court approved.
Remanded to render judgment reducing the plaintiff’s weekly payment
in accordance with the agreement. (This says reduce 350 instead of the
reality of 100)
Issue
o Parties agreed to remove the discretion of the court in adjusting
alimony. Can the court disregard? No. Reversed.
PP
o Trial court won’t apply modification agreement
o Applies cohabitation statute
o Change in circ so as to alter the financial needs of the receiving
spouse
o For equity reasons reduces alimony only to 600
Living w/Dean only altered her financial needs by 100/wk
instead of $350
Appellate review of a factual finding, therefore, is limited
both as a practical matter and as a matter of the
fundamental difference between the role of the trial court
and an appellate court.’’
Facts
o CT statute provides that cohabitation may result in suspension,
reduction, or termination of alimony if “living arrangements cause such
a change of circumstances as to alter the financial needs of that party
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PP
o Marvin was ordered to pay $104,000 to Triola for "rehabilitation
purposes" but denied her community property claim for one-half of the
$3.6 million, which Marvin had earned during their six years of
cohabitation
Facts
o Marvin was sued by long-time girlfriend Michelle Triola (who called
herself Michelle Marvin at the time). Though the couple never married,
she sought financial compensation similar to that available to spouses
under California's alimony and community property laws.
o After all, she had lived with the rambunctious, hard-drinking actor for
six years and had even legally changed her name to Marvin. At first she
accepted the $833 per month he sent to support her while she tried to
resume her singing and acting career. When the promised checks
stopped, she decided to sue him.
o He agreed to support her for life. She gave up entertainment career to
be homemaker
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Facts
o 23 year relationship; adulterious; D said he would leave his wife and
marry gf and support her forever
o Gail/P met Hoyt. He said he was divorced. Not. He kept lying and
leading her on. Lavish lifestyle. He totally supprted her. He left. She
was uber upset.
CHILD SUPPORT
Federal Gvt
1. 1984 Aid to Families with Dependent Children program
o Shapes state policy by conditions imposed by the programs through
conditions of receiving AFDC assistance to establish numerical
guidelines on which to rely in determining child support obligation
o These are rebuttable presumptions of the appropriate amount
o Judges may deviate only upon a written finding that applying them
would be inequitable
2. Child Support and Establishment of Paternity Act 1974
o Recipients of public assistance
o Must cooperate I establish and enforcing support orders and
locating potential obligors
o Objectives
o Reduce public expenditures on welfare
o Help families get support and get off public assistance
o Simulate state action for paternity for nonmarital kids
3. Child Support Enforcement amendments
o States have to make advisory guildelines or they lose federal funding
for AFDC
o Trying to enhance uniformity in child support and gtive judges basis to
determine support
4. Family Support Act 1988
o Required state guidelines to apply to all cases
o Rebuttable presumption
o Any deviation supported must be by findings that applying guidelines
would be inequitable
5. Three Models for Guidelines
o 1. Income shares
o 33 states including WA pg 783
o Prorates support based on each parents % income
o Theory
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the lifestyle the children would have absent the dissolution; the court is
justified in setting a figure below the statutory child support guideline
amount (see text pg 791 for guideline percentages)
o And despite the requirement that a court consider a child's station in
life, the courts are not required to automatically open the door to a
windfall for children where one or both parents have large incomes."
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erred b/c opinion didn’t explain if they used factors and how they came
to the amount; remanded so that trial court explains the process.
Issue
o Whether there can be a downward modification to pre-existing child
support when subsequent family is involved. YES
o State statute pg 799 nt 1 says ‘real, substantial, and unanticipated
change of circumstances
Facts
o In this case, subsequent family children were step-children.
o The duty to support stepchildren is considered in the guidelines
calculation in only four states: Michigan, New Hampshire, South
Dakota, and Vermont. Mich.
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WA on Marital Rape
Doesn’t recognize this except for 1st degree rape (rape involving
kidnapping, threat of deadly force, serious physical injury)
Does allow exemption for 3rd degree rape (where victim does not
consent)
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Fact
o Eudence Eunique denied passport b/c she hadn’t paid child support
payments in a while (20K); she wants injunctive relief; although she
won’t pay child support, she wants to travel internationally for business
and pleasure
o There is a statute that directs the state to notify the secretary of HHS,
and they did, and there is a law that then directs the secretary shall
refuse to issue a passport to the person in question
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o Statute says the court may set aside the sentence and impose any
conditions on the probation; wants to protect the kids from future
wrongdoing; broad discretion granted
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1. Restrictions on Marriage
Equal Protection Analysis
o Id the relevant classifications
o Determine the standard of review
o Strict scrutiny
Suspect classification
Fundamental right/liberty
o Evaluate purpose according to test
Loving v Virginia pg 59
Miscegenation statute/EP
Marriage is fundamental freedom (still don’t say right)
Held
Statutes violate EP of the 14th amendment; strict scrutiny for invidious
discrimination; fundamental right; no legitimate overriding purpose
Also deprive the Lovings of liberty w/o DP 14th amendment
Issue
Is there an EP violation in the miscegenation statute? Is there invidious
discrimination? YES. Is there a liberty DP violation? YES
PP
District court denied motion to vacate the sentences; affirmed on
appeal;
Facts
VA statute made it illegal to marry between races and set punishment
Mixed couple living in VA went to DC to be married and returned to
VA
Were sentenced each to 1year, suspended 25 years, and told to move
out of state
State said no EP issue b/c both blacks and whites got the same
punishment
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Held
Strict scrutiny b/c marriage is fundamental right; statute is not narrowly
tailored to meet the goals of children being supported or more kids
being created that aren’t supported
Under-inclusive re getting parents to support their children from a prior
marriage, not closely tailored
EP violation
Test here:
When a statutory classification significantly interferes with the exercise
of a fundamental right, it cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to effectuate
only those interests pg 65
Every reg by the state that relates in any way to the incidents or prereqs
to marriage do not all require strict scrutiny
From slide 5/5
Classification here interferes DIRECTLY and SUBSTANTIALLY
with the right to marry
Stevens Concurrence
The rich may marry and the poor not
Rationale
Statute not narrowly drawn; many better ways to ensure that kids are
supported; garnish wages etc
Possibly by allowing the next marriage the person will be in a better
financial situation to then actually make the payments for child support
Issue
Is requiring WI residents to oblige court order or they can’t marry, a EP
and/or DP violation? YES
Facts
Wisconsin tried to make a statute that provided that people who had
been married, divorced, and subject to court imposed child support
could not marry until they proved that they were keeping up with the
child support payments
Criminal penalties if you marry w/o permission
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In the Notes pg 74
Four factors of reasonableness in Langone v Coughlin
o The statute not reasonably related to the stated goal
o No alt means for the person to be married
o With deference to prison, court found that accommodating the
inmates right to marry would not jeopardize the security
o No ready alternative to the fundamental right to marry
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a. Incest
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b. Age
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Fla statute similar b/c it says they won’t recognize marriages of this kind from
other states
Federal act
States not required to recognize same sex marriage from another state; and
they define what marriage and spouse mean in a legislative or executive
branch action.
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Why would FFC clause not be violated by DOMA? Court dismisses citing
Baker. See slide. Gay not suspect class. Same sex marriage not guaranteed
by 14th b/c not rooted in our history and tradition, so not a fundamental right.
This is different from Goodrich.
Nat’l Pride at Work Inc v. Gov of Mich. Mich Sup Ct 2008 [ Supp 30]
Taking even benefits away from same sex couples after amending constitution
to forbid gay marriage
Held
o Providing benefits would violate the state constitution; the language in
the amendment provided that ‘To secure the benefits marriage..for
society…between a man and a woman
Issue
o Whether an amendment to the Michigan state constitution prohibiting
recognition of same-sex marriages or any "union" that is "similar" to
marriage also prohibits public employers in the state from conferring
benefits on the same-sex partners of their employees. YES
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Which branch should make these decisions. In Canada they had leg and
judiciary working together. They determined that it’s okay for legislativei
branch to ast in this area and it is consistent with their equivelant of the bill of
rights
International slides
Prenuptial Agreements
Status vs Contract
Status relationships are controlled by law
Contract relationships controlled by agreement
Arguably employment is moving towards a status relationship
o More limits on freedom to contract
E.g. anti-discrimination laws
Arguably marriage moving toward contract
Marriage moving closer to a contract than status b/c as seen in today’s reading,
courts are upholding
However, parent child relationships are more on status side, and you see that
in the cases today where they don’t let you contract out of child support and
custody etc. Here the state reserves the right to intervene
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Edwardson
In certain states they undergo ‘special scrutiny’
They look closer than a normal contract
There was a binding 75 year old precident not to recognize these
agreements
Court decided to go ahead and enforce
The terms may not be unconscionable AT THE TIME
ENFORCEMENT IS SOUGHT, as opposed to upon execution
The validity of most contracts doesn’t usually depend on full disclosure
unless you can characterize as fraud; is this requirement sufficient for
a would be spouse who is dying to get married?
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Separation Agreements
o Agreement of the parties at the time of divorcing
o These are allowed by UMDA 306(a)
o Property division, alimony, child support, custody, visitation
o Rationale in comment
o Promote amicable divorce
o Must follow basic principles of contract law to be enforceable
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UMDA (d)
Treated differently; not binding on court
Standard of review for child support?
o Whether contract is unsatisfactory
Apply UMDA §309 standards for child support [Comment]
If SA is unconscionable
o Court can ask the parties to revise it
o Court can establish terms based on §§307 (property distribution),
308 (maintenance)
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