Domestic Relations/Family Law

The law of domestic relations is also known as family law. Domestic relations incorporate contracts, constitutional law, tax, trust and estates, procedures and conflicts of law. As a result of an increase in federal laws adopted by states, there is greater uniformity in this area.

Family law is an area of law that deals with family related issues and domestic relations including the nature of marriage, civil unions and domestic partnerships. Issues that arise throughout a marriage include, spousal abuse, legitimacy, child abuse and child abduction. The termination of the relationship includes divorce, annulment, property settlements, alimony and parental responsibility orders such as child custody, visitation, child support and alimony awards.

  1. I. Relationships between unmarried parties.
  2. Agreements.
    1. Promise to marry. At common law many jurisdictions had a cause of action for breach of a promise to marry on the theory that this was a form of emotional distress. The party breaking off the engagement could be held liable for money damages because of the expense and distress suffered by the other party. Modernly, jurisdictions have abolished this cause of action by statute. As a result, a breach of a promise to marry is not actionable.
    2. Gifts. What happens to a gift when parties break up prior to marriage?
      1. Gifts made in contemplation of marriage can be recovered if the marriage does not occur.

Example: An engagement ring.

  1. Gifts such as a cashmere sweater, music CD’s or birthday presents (a DVD player) are gifts that are not in contemplation of marriage and probably don’t have to be returned.
  2. Cohabitants. Two people living together engaged in sexual intercourse.
    1. Express agreements.
      1. Modernly, a majority of states enforce written or oral agreements provided there is sufficient consideration other than sex. This includes entitlements to a portion of an estate, a payment for support or various services rendered, etc.
      2. Common law courts held the sexual aspect of a relationship made it illicit. “Living in sin.” As a consequence courts punished the couple by declining to enforce an agreement.

Example: A promises to pay money to B, and B promises to provide sex to A would be void for lack of consideration.

  1. Implied. An agreement where two people have lived together for a long period of time. This may be used to remedy any disparity that exists between the parties when the relationship terminates.
    1. Majority of states require an express agreement, written or oral with consideration other than sex.
    2. Minority of states will enforce an implied agreement.
    3. Prenuptial agreements. Express agreements are enforceable between couples in contemplation of marriage. Prenuptials may address any matter the couple wishes to include in an agreement.
      1. Traditionally they deal with financial issues.

Example: Contingencies as to how property will be divided in case of divorce are enforceable.

Example: The amount of alimony paid in the event of divorce.

Example: Child support or custody arrangements.

  1. Uniform Premarital Agreement Act. (UPAA), adopted by half the states. Requirements for a valid prenuptial:
    1. Substantive.
      1. Duress. The contract must be freely made. If made under duress the agreement is voidable.
      2. Disclosure. Each party must disclose their income and assets so the other side can make an informed decision about the rights they would be giving up.
      3. Some states require a substantively fair agreement for the financially weaker spouse.
      4. In other states fairness merely raise a presumption of overreaching or duress. A defense is that the weaker party benefitted from full disclosure and council.
      5. UPAA. No fairness requirement. The agreement is only set aside if it’s unconscionable.
      6. UPAA. If the alimony portion would leave the weaker party dependent upon public assistance, the court may disregard the agreement and require the wealthier party to provide adequate support.
      7. Procedural.
        1. Prenuptials must be in writing to satisfy the SOF.
        2. Parties should have separate council, but is not required.
        3. Advance divorce agreements are impermissible.

Example: A and B agree to marry in 2010 and agree to divorce three years later. This is against public policy.

  1. Non-marital children. Children born to unmarried men and women.
    1. Common law definition. A child conceived or born at a time when parents are not married. At common law children born to unmarried mothers were legally termed bastards. This and illegitimate are no longer used.
    2. Modernly it’s customary to call children born out of wedlock non-marital children. Some jurisdictions consider a child legitimate at any time after birth that the parents get married.

Example: A child born in 2001 but the parents marry in 2003.

  1. Non-marital children have the same rights as a marital child. Any prejudice aimed at a non-marital child is highly suspect under the Equal Protection Clause of the Constitution.
  2. Non-marital children are entitled to support and to inherit from both mother and father.
  3. For an unwed mother with child, the only real issue is the ambiguity as to paternity.
  4. Paternity/filiation proceedings. In order to assert rights of support, a paternity proceeding may be brought at any time before the child’s 18th birthday. Because support obligations are mandatory up to that age.
  5. Paternity suit plaintiffs.
    1. The non-marital child acting through a guardian.
    2. The biological mother.
    3. Public agencies acting on behalf of a child.
    4. Evidence standards for paternity.
      1. The majority of states require paternity by a clear and convincing standard.
      2. Uniform Parentage Act. Minority of states require a preponderance of evidence.
    5. Admissible evidence to prove paternity.
      1. The mother can testify she had sexual access, intercourse with the defendant. That no birth control was used and the timing makes it plausible that the defendant is the father.
      2. Blood group evidence indicating type A/O, is only admissible if it disproves paternity.

Example: The mother can’t say the defendant has type O blood and so does the child, because there are literally hundreds of millions of people with type O blood.

  1. DNA testing and HLA blood typing can be admitted by either party to suggest or rebut paternity.
  2. Other evidence considerations. Does the defendant visit the child or not? Does the defendant give the child gifts or money? Does the defendant refer to the child as my daughter or son? Does the child refer to the defendant as daddy?
  3. Some jurisdictions allow the fact finder to determine if there is a physical resemblance between the defendant and child.
  4. If the courts determine the defendant is the father, this creates a father/child relationship for all purposes recognized by law.
    1. The father has the duty to pay support.
    2. The child has a right to inheritance.
    3. If the father died in an accident, the non-marital child would have a cause of death action against the negligent driver.
    4. In most jurisdictions paternity actions are kept sealed because if the defendant is exonerated any accusations made publicly and then disclosed could be embarrassing.
    5. Heart Balm Actions. Modernly abolished.
      1. Breach of a promise to marry. Break off an engagement, there is no liability.
      2. Seduction of an unmarried female. This cause of action usually belonged to the father of the unmarried woman.
      3. Alienation of affection. Cause of action brought by a married party, against a third person who turned the spouse against them.
      4. Criminal conversation. A civil remedy for adultery.
      5. Jacktitation of marriage. Holding out to the public one was married, when in fact they were not.

A wanders about town claiming to be married to B. B takes A to court to have an injunction ordered to force A to stop saying they are married.

  1. II. Marriage. A permanent and exclusive relationship between two people of the opposite sex.
  2. There is a constitutional right to marry. State laws that limit the right to marry are subject to strict scrutiny. If a couple is prevented from marrying under state statute, or the right to marry is burdened by some condition imposed on it, the statute would require strict scrutiny analysis.

Zeblocki v. Redhail, 434 U.S. 374 (1978). A state law imposing financial responsibility as a prerequisite to marriage is unconstitutional.

Loving v. Virginia, 388 U.S. 1 (1967). Miscegenation, or race restrictive laws are unconstitutional. Marriage is a fundamental right, constitutionally protected and any state law that prevented such would require strict scrutiny analysis.

  1. Capacity. Marriage requires capacity and those that wish to marry must be free from impediments.
    1. Two people of opposite sex.
      1. A majority of states require, one man and one woman.
      2. Vermont recognizes the concept of civil union for same sex couples.
      3. Congress passed the Defense of Marriage Act, which states that states do not have to give full faith and credit to same sex marriages entered into in other states. This has not been litigated because no state has granted same sex marriages.
    2. Transgender. People that have undergone sex change operations. In most states they are considered to be the sex they have changed to.

Example. If a man had a sex change operation and he became a she, for purposes of marriage that person is a female.

  1. Incest. Incestuous marriages are illegal. People seeking to marry cannot be too closely related to each other. In some states it’s a crime. In most jurisdictions the requirement for an incestuous relationship require a blood relationship including:
    1. Ancestors. (Grandmother and grandfather).
    2. Descendants. (Children).
    3. Aunts and uncles.
    4. Nieces and nephews.
    5. Some states permit first cousins to marry, while others forbid it.
    6. Siblings. (Brother and sister).

Example: John Doe cannot marry his mother, grandmother, daughter, granddaughter, niece, aunt or sisters. Includes half sisters. (Half-blood).

  1. The majority of states don’t consider marriage between stepsiblings incestuous.

Example: Marsha and Greg Brady could marry.

  1. Bigamy. People must be single to marry. One cannot be married and marry a second time unless a final divorce decree has been satisfied.

Some states will save the second, bigamous marriage if the first marriage is terminated or the spouse from that first marriage dies, provided they acted in good faith.

In some states the last marriage is the valid marriage and the innocent party may be able to secure their rights.

  1. Doctrine of ratification.

Example: H marries A and the first marriage has not been terminated. H then marries B. The second marriage is bigamous and invalid.

Example: A and B are married. A takes a trip to Europe and never returns. Two years later B meets another person and wishes to marry. Does B lack capacity to marry? Is he a bigamous if he remarries? B would have to go to court and get a decree of presumed death of the absent party. However, once the person is gone for more than seven years there is a presumption of death and this can be relied upon without a court decree.

  1. Age. If a party is under age they lack legal capacity to marry.
    1. 18. Typically the age to marry is 18. However, with parental or judicial permission younger people may marry.
    2. 16-17. Permissible with the consent of one parent.
    3. 14-15. Permissible with the consent of one parent and a judge.
    4. Below 14 is generally impermissible.
    5. Minimum age is 14. The Uniform Marriage and Divorce Act minimum age is 16.
    6. Capacity. People that lack mental capacity cannot contract to marry.
      1. Mental illness.
      2. Mental retardation. May be approved by courts if parties can show they have a sufficient understanding of the responsibilities of marriage.
      3. Lack of intent to marry.

Example: A marriage entered into solely to enable a party to immigrate or remain into the U.S. However, some states view it as valid if the parties have gone through all the steps of a marriage. Other states consider it a lack of the essential element of intent.

  1. Drugs or alcohol. A party under the influence of drugs or alcohol to such a degree that they are unable to understand the nature of the marriage relationship.
  2. Lack of physical capacity. If one suffers from an incurable condition that prevents them from having safe sexual intercourse with their spouse, they lack the capacity to get married. Most venereal diseases are curable so they do not constitute the lack of capacity. Most jurisdictions don’t include the unwillingness to engage into sex, or consummate the marriage as a lack of physical capacity. Most jurisdictions limit this to physical capacity problems.
  3. If two individuals want to marry and are free from the impediments, how do they get married?
    1. Ceremonial marriage. The most common for of marriage.
      1. License requirement. The license requirement is the way a state can enforce the capacity issue. Evidence in the form of a blood test that shows that parties are free from sexually communicable diseases. There is usually a three-day waiting period. However, some states such as Nevada don’t have a three-day waiting period. In many states the requirement of a license is not mandatory in the sense that it does not affect the validity of the marriage.

Example: If H and W fail to receive a license, but have capacity and a ceremony the state will treat them as married. In a minority of states the license requirement is mandatory.

  1. Ceremony requirement. A solemn declaration before an officient and one or more witnesses. Who is the officient? A clergy member of any religious denomination or civil officer, such as a justice of the peace. If the officient is not on the approved list of officients, the marriage may still be valid if the marriage was carried out in good faith and there was a parent authority.
  2. Proxy marriage. Some states will permit a marriage where one of the two parties is out of the country, such as away on military duty. The absent party may authorize a third-party to act as their proxy, with the spouse and the proxy standing before the officient.
  3. Complying with a religious marriage does not make one married in the eyes of the law. It must comply with the civil requirements for the marriage to be valid. (The license and the ceremony.)
  4. After the marriage ceremony is completed the officient must fill out the marriage license and file it with a public authority to create a public record of the marriage.
  5. Common law marriage. Recognized in a minority of states. Abolished in about 38 states.
    1. Requires capacity.
    2. Cohabitation. They must live together and have sexual intercourse. Parties must have expressed an intention to each other that they are married and in words in the present tense.

Example: From this moment on, I consider you to be my spouse. I want this relationship to last forever and I will be loyal and exclusive to you. There are no witnesses or officient requirement.

  1. If a common law marriage gets to the litigation stage, where the couple wants to end the relationship, or one of the parties has died, the courts rely on circumstantial evidence that the words were said.
    1. Reputation in the community. Habit and repute. Does everyone in town think H and W are married?
    2. Holding out, or representing themselves to be spouses such as using a common last name or using a joint bank account, or introducing themselves to others as spouses.
    3. No minimum time period is required to establish a common law relationship.

Essay: H and W cohabited for an extended period of time. H passes away. W is claiming under intestacies laws the right to inherit the bulk of H’s estates as the surviving spouse. A relative of H argues that W is not a surviving spouse because there was never a marriage. If W lives in one of the states that recognizes common law marriage will attempt to establish herself as a common law spouse.

  1. Common law is used to fix a defective ceremonial marriage.

Example: Bigamy. H is married to A. H divorces A, but there is a problem with the divorce decree because the state lacked subject matter jurisdiction. H then enters into a ceremonial marriage with B. The second marriage is bigamous, and invalid because H lacked the legal capacity to marry. Two years later A dies. H and B continue to live together. At this point they may be able to rely on the common law marriage doctrine to validate or sustain their marital relationship.

  1. If a couple lives in a state that recognizes common law marriage and they enter into a valid common law marriage, they will be considered legally married regardless where they relocate. Common law marriage would be recognized in all states under the principles of full faith and credit.
  2. Putative spouse doctrine. Related to the common law marriage doctrine. UMDA, any person who cohabits with another to whom they are not legally married, in a good faith belief that they are married is a putative spouse until knowledge of the fact that they were not legally married terminates their status. A putative spouse is one who does not have a valid and lawful marriage. What they do have is the economic rights of a spouse, such as a right to property or economic support.

Example: H marries A. H travels a lot on business. H marries B and does not disclose this first marriage. B’s marriage is not valid because H lacks capacity to marry. H is a bigamist. B is not his wife, B is a putative spouse. If she learns the truth four year later, she may be entitled to a share of his assets, house, stocks. Under such situations, A might want a divorce herself. Under these facts, both are innocent and the court will apportion property and alimony in the interest of justice.

  1. The consequences of being married. What does it mean to be married? A marriage is controlled by operation of law, not spousal agreement. A marriage last for the life of the spouses unless it is formally dissolved by judicial action.
    1. Four marriage obligations.
      1. Sexual fidelity. There is an obligation to be faithful and not commit adultery. In some states adultery is still a crime. The penalty for adultery is dissolution of marriage.
      2. Financial support. Married parties have a financial obligation to support each other.
      3. Separate maintenance proceedings. The support must be fair and reasonable, enforced by a judicial proceeding during the marriage.
      4. Rights to estates of each other. If a married person dies without leaving a will, there will probably be a right of the surviving spouse under intestacy laws to take a significant share of the estate. Even if one tries to disinherit their spouse, they can often demand an elective share of the spouse’s property I n lieu of the will.
    2. Tenancy by the entireties. The law considers married people two separate persons. Each having their own debts. However, if one spouse were acting as an agent for the other, they would be responsible for the debt. If one spouse enters into a contract for food, shelter or medical care, many state require the surviving spouse to be liable on that contract because those items are considered to be necessaries. A debt incurred for the purpose of necessaries is a debt on which both spouses can be held liable.
    3. Spouse tort immunity. Spouses may commit torts against each other and spousal tort immunity has been abolished in most states.
    4. Rape. A spouse can face criminal prosecution for raping their spouse.
  1. III. Terminating the marriage relationship.
  2. Annulment. A legal procedure for declaring a marriage invalid. Annulment relates to impediments that predate the marriage. Grounds for annulment are any matter related to capacity. Some impediments make the marriage void others make it voidable.
    1. Void. Grounds are non-waivable as a matter of public policy. One can walk away from a void marriage without a legal decree.
      1. There may be child custody or property distribution issues.
      2. Third parties may collaterally attack a void relationship.
    2. Voidable. Grounds for annulment are waivable. Voidable marriages are binding and require an annulment decree.
      1. Spouses may only challenge voidable marriages.
    3. An annulment gives parties a clear marital record.

Example: Loan forms from banks require both spouses to sign.

  1. Proceedings.
    1. Void. Cause of action seeks a declaration of nullity.
    2. Voidable. Cause of action seeks an annulment.
    3. Void grounds for annulment.
      1. Bigamy.
      2. Incest.

Example: A woman unknowingly marries her uncle. She can walk away or go to court and have it dissolved. If she learns of the impediment, and decides to remain married, the court will void it anyway. It may be collaterally attacked by a third party if one of the two die and they attempt to collect the estate. A relative could bring action claiming the marriage was void as an incestuous marriage.

  1. Lack of mental capacity.
  2. Voidable grounds for annulment.
    1. Underage.

Example: A 17-year-old married to a 20-year-old, may file for an annulment decree. If they stay in the marriage after reaching the age of consent the marriage is no longer voidable.

  1. Lack of physical capacity. The incurable ability to have intercourse.
  2. Duress. Undue influence or force that negates intent.

Example: A shotgun wedding.

  1. Fraud. A fiancé lying to the other during courtship.
    1. Some states. It must go to an essential element of the marriage.
    2. Some states it must be material.
    3. Sufficient grounds.
      1. Historically lying about religion is significant grounds for annulment. Includes religious practice, diet, etc.
      2. A pregnant woman lies stating she’s pregnant with a child of her fiancé.
      3. Sexual orientation. Gay.
      4. Insufficient grounds.
        1. Love.
        2. Money.

Example: A fiancé lies about their wealth or extensive ownership in real estate.

Example: Lies about the extent of their love for the fiancé.

Example: A fiancé says they weigh 170lb., when they weigh 185lb. is not material.

  1. Marriages in jest or a sham. A mock ceremony where parties have no intention of being bound.

Example: Tax advantage.

Example: To enter the U.S.

  1. Defenses.
    1. Laches. A prejudicial delay that originates from the law of injunction/equity. A party that learned of an impediment but waited too long to seek relief may not bring action for an impediment.
    2. Statute of limitations. States have filing limitations and if a party does not file within that period they are barred from filing a claim.

Example: Spouses were not physically intimate before marriage and one learns of a physical impediment during marriage. There could be a SOL that require the action to be brought within a three-year time period. If the party failed to do so the action if barred.

  1. Waiver. Spouses continue in the relationship after the defect was discovered.

Example: 17-year-old stayed in the marriage after they reach the age of majority.

  1. Equitable estoppel. Unclean hands. If a party is guilty of misconduct they may not bring action seeking annulment.

Example: A marries B, a friend who is a French citizen, for the sole purpose of B remaining in the U.S. and parties have no intention of establishing a bona fide marriage relationship. A few months after B’s immigration status is cleared, A seeks annulment, claiming the marriage was a shame and not formed with marital intent. The courts will say even though it was a sham, it was done to perpetrate a fraud on the U.S. immigration service. Under the unclean hands doctrine the case would be dismissed.

  1. Other remedies.
    1. Property settlements such as home or other financial assets that was accumulated by the couple.
    2. Custody orders.
    3. Child support orders.
    4. Alimony is rare in annulment litigation because the concept is that no valid marriage was ever entered into.
    5. Separation. Puts the marriage in suspension but the couple remain legally married and not free to enter into new marriage with other people. Why separation?
      1. Religion. There are people that have ethical obligations that marriage is for life and they will not terminate the formal bond.
      2. To preserve a tax status, or to assure some type of government benefit, or preserve a right under a will in intestacy.
      3. To get a legal separation one must assert grounds similar to that of divorce.
      4. A court order legal separation may be converted to a divorce after a period of time has lapsed.
      5. Divorce/dissolution. Relates to grounds that arise after the marriage.
        1. No fault divorce.
          1. Irreconcilable differences. There are no grounds for reconciliation. The procedural approach.
            1. Mutual consent. Both spouses agree the marriage has failed. Usually a statutory waiting period applies.
            2. Unilaterally. One spouse refuses to acquiesce to divorce. Available if the party seeking believes the marriage cannot be saved and is living separate and apart from the spouse for a specified period of time. As a general rule pending a unilateral divorce there can be no cohabitation, no sexual relations. Usually a statutory waiting period applies.
            3. Summary divorce. Some states such as California and Florida have a procedure called summary divorce that provide a less expensive and less formalities for couple that seek divorce. Usually required no children, no real estate and no claim for alimony or post divorce support. Usually applies to couples married a short period of time that have not accumulated much wealth and are sufficiently well educated or trained that they can sustain independence. Usually there is a statutory waiting period between the filing and the actual grant of divorce.
    6. Fault based divorce.
      1. Cruelty. Mental and physical cruelty are grounds for divorce in jurisdictions that apply fault based divorce. Some states call it cruel and inhumane/barbarous treatment.
        1. Physical injury. Physical injuries include hitting, striking, wounding, stabbing, shooting of a partner in marriage after the date of the wedding ceremony. Grounds if it is a repeated pattern, or if it is manifested in a single episode of significant severity.
        2. Mental cruelty. Mental cruelty is more subjective. Almost always requires more than a single episode of conduct. It covers a wide range of behavior where a spouse is mean, inconsiderate or hostile to the other spouse. It might involve verbal abuse, haranguing the use of verbally abusive language in front of third parties. It may include withdrawal, the silent treatment or refusal to communicate where there is no emotional interaction between parties. This might also include drunkenness, or drug addiction where on is unable to interact as a result of the addiction.
      2. Adultery. Voluntary sexual intercourse with a party other than one’s spouse. Rape does not constitute voluntary adultery. In many states sex relationships are treated the same as a heterosexual relationship and considered adultery. Most states required the adultery charge to be corroborated by a third party. In other words, the spouse claiming adultery is insufficient for a valid claim unless there is other evidence to support the claim.
      3. Desertion. Where one party in a marriage leaves without consent and without justification. Statutory period in most states is one year. A mutually agreed upon separation is not desertion because parties have agreed to separate.

Example: If W is in a physically abusive relationship and she leaves, this is not a desertion because W leaving is justified.

  1. Constructive desertion. Not necessarily packing up and moving away, but doing other things that abandon the marriage.

Example: H undertakes employment in another city and W refuses to relocate.

Example: Physical or emotional abandonment without leaving the marital home, including the refusal of all sexual relations, or leaving the marital bedroom and sleeping in the guest room, or sofa.

  1. Non-support. Failure to provide economic resources that are usually required in a marriage.
  2. Criminal incarceration. Usually a minimum statutory period or 2-3 years. The argument is there is no physical or financial support.
  3. Insanity. If a spouse develops a mental illness or becomes institutionalized for a period of years the marriage can be dissolved.
  4. Affirmative defenses. More academic than of practical importance.
    1. Recrimination. The equitable concept of dirty hands. The defendant spouse that is accused of misconduct will demonstrate that the plaintiff spouse is guilty of comparable misconduct as well.

Example: Adultery. Historically, if both parties were committing adultery, the courts would not enforce a divorce on grounds both parties had unclean hands. Abolished in almost every jurisdiction.

  1. Condonation. A waiver. “I condone it.” Where one spouse found out about the misconduct, forgave it and continued in the subsequent cohabitation.
  2. Connivance. Entrapment.

Example: H is tricked into an adulterous relationship where W hired and paid another to seduce H and then used it as a claim for adultery.

  1. Collusion. Parties have fabricated their grounds for divorce. Both parties perjure themselves by lying to the court that one or the other, or both have engaged in adultery, or mental abuse even though it was not true.
  2. Subject matter jurisdiction.
    1. Residency. All states require at least one litigant to reside in the forum state and have been a resident for a statutory period of time before a preceding may take place.
    2. The UMDA specifies a ninety-day residency requirement. Some states require as long as one-year. The Supreme Court held that residency requirements for a divorce proceeding are constitutional.
    3. Domicile. If the plaintiff is domiciled in the forum state, the court is free to grant a divorce or annulment whether or not they have personal jurisdiction over the other spouse. Because marriage is considered a res and follows citizens wherever they are domiciled. All states must give full faith and credit to the divorce decree, even if the divorce proceeding took place ex parte. The only requirement is the absent spouse received notice of the proceeding.

Williams v. North Carolina, 325 U.S. 226 (1945). A man and a woman, domiciled in North Carolina, left their spouses in North Carolina, obtained divorce decrees in Nevada, married there and returned to North Carolina to live. They were then prosecuted in North Carolina for bigamous cohabitation. They pleaded the Nevada divorce decrees in defense, but were convicted. A divorce decree rendered in one state may be impeached in another by showing the court which rendered the decree had no jurisdiction.

  1. Personal orders. If there is only one spouse domiciled in the forum, the court cannot enter personal orders against the non-resident spouse. This includes the payment of alimony and property division.
  2. Domicile is not the same as residence. One may have a home in New York and a summer home in Maine. They may have a New York driver’s license and vote in New York and consider New York their permanent home. They may have a residence in Maine, but they are not domiciled there. Maine would not have jurisdiction over the marriage and could not enter a divorce order.
  3. Personal jurisdiction. How does a court get personal jurisdiction over the other spouse?
    1. Domicile. If both spouses are domiciled in the forum.
    2. If there is no domicile courts may have jurisdiction by:
      1. Consent. The defendant enters the jurisdiction and voluntarily participates in the divorce proceeding.
      2. Physical presence. Service of process. A summons is handed to a defendant spouse when they are in that jurisdiction.
      3. Long arm statute. If the defendant has minimal contacts with the state. Includes the forum where the couple were legally married, or the couple resided in the state during some interval during the marriage. Or grounds alleged took place in the forum state, such as the adultery took place in the forum state.
      4. Without personal jurisdiction, no personal orders.
      5. If both spouses make an appearance, the divorce is considered bilateral and even if the spouses are not domiciled in that jurisdiction the defendant is estopped from challenging the validity of a divorce decree.
      6. Foreign jurisdiction. Divorce obtained outside the U.S. There is no binding obligation on U.S. courts to recognize foreign country divorce decrees.
        1. Each state is free to rely on its own public policy. If parties have left the U.S. to evade some public policy of the domiciled state that would be strong reason for that state to deny the foreign divorce decree.
        2. States that honor foreign divorces only do so if they are bilateral, (both parties consent), and at least one party has traveled to the foreign nation.
        3. Courts will look at whether there was an actual hearing, or if the party merely paid a fee to obtain that divorce.
        4. Comity. When an international divorce is recognized, it is usually done under the doctrine of comity. It is universally held that a mail order divorce is not valid, even if it is bilateral. Similarly, ex parte divorces in foreign jurisdictions are not valid.

IV. Economic issues surrounding marital dissolution.

  1. Divorce agreement. Many couples dissolve their marriage by entering into a mutual agreement. To be valid a divorce agreement must be:
    1. Freely made.
    2. In writing.
    3. Full disclosure of all assets held by both parties.
    4. Some courts will only enforce the divorce agreement if it’s essentially fair.
    5. Subject matter of divorce settlements are usually binding. However, courts may modify settlement agreements regarding children to protect the child. Subject matter includes:
      1. Testamentary issues.

Example: Each party gives up their spousal elective share in the other party’s estate upon their death.

  1. Alimony payments. The amount, duration and by whom, or that no alimony is to be paid.
  2. Distribution of property. Who gets the car, boat, vacation home, mutual funds, etc.
  3. Matters of child custody.
  4. Child support. How much money will be paid by each to support of the children?
  5. Can terms be modified after an agreement is reached? Depends on if the agreement has merged with the final divorce decree.
    1. Merger. Through the merger of the agreement and the divorce decree, the agreement loses its status as an independent contract. The terms of the agreement merge into and become part of a court decree.
    2. Court decrees are subject to modifications. However, if the divorce decree does not cite a merger, then the divorce agreement is retained as a separate contract and may not be modifiable unless there is a compelling circumstance. Any violation of the separate divorce agreement is not subject to contempt of court.
    3. Temporary orders. Temporary orders occur when parties cannot agree upon terms and the case is pending. This includes:
      1. Alimony payments. Alimony pendente lite. (Pending the litigation).
      2. Possession of particular assets such as a car or the home.
      3. Restraining orders for the safety of members of the family. Usually an order forbidding one spouse from coming near the other spouse, or an order requiring one spouse to move out of the marital home. They can be given on a relatively minimal showing or sometimes even without notice.
    4. Where parties cannot agree, the courts are responsible for making two types of economic orders.
      1. Final disclosures. Most courts required financial disclosure forms before bringing a case to a conclusion and to make informed orders.
      2. Alimony. One spouse becomes economically dependent during and because of the marital relationship.

Example: Stay home mom who withdrawals from the work place to take care of the family. Only order when there is a need. The recent trend is to order fewer and smaller amounts of alimony, because both spouses are more likely to be working and have job skills to allow them to support themselves.

  1. Types of alimony.
    1. Lump sum alimony. Alimony in gross. A single payment made at the time of divorce.
    2. Rehabilitative alimony. Periodic payments for a set period of time to enable the recipient to obtain education or job skills.
    3. Permanent periodic alimony. No set termination date. It may terminate under either circumstance:
      1. The death of either ex-spouse.
      2. On the remarriage of the recipient.
      3. Cohabitation. In some states if the recipient openly lives with another as if they were spouses, that will be grounds for termination of the award. It will be treated like a new marriage.
      4. UMDA is conservative in allowing alimony awards. It provides that alimony will only be paid, if the party seeking it lacks sufficient property to provide for their reasonable needs and is unable to support themselves through appropriate employment, or has the custody of children that makes it impossible to be employed.
      5. Gender based alimony presumptions are unconstitutional. Most states have built this into their statutes.
      6. The amount of alimony is discretionary by the courts. Most state statute and the UMDA contain a list of relevant factors that courts are supposed to consider when fixing the amount. Some factors include:
        1. Financial resources and property owned by the spouses.
        2. The time necessary to secure education and training on the part of the recipient.
        3. The standard of living maintained during marriage.
        4. The marriage duration.
        5. The age, physical and emotional condition of the recipient.
        6. The resources of the payor.
      7. Fault. What marital fault should be considered in alimony awards?
        1. The UMDA indicates that fault should not be considered in alimony awards. Some states explicitly allow marital fault to be considered. This might prevent an alimony award where otherwise an alimony award might be appropriate.
        2. Can the award be modified? Modifications only apply to future payments. It does not affect an arrearages, past due amounts owed if the payor falls behind.
          1. A lump sum award is not modifiable.
          2. Periodic payments can be modified if there is a substantial change in circumstances. Balance the need of the recipient and the resources of the payor.

Example: Payor gets laid off would be a reason to reduce alimony payment.

Example: A recipient completing an educational program could be reason to reduce alimony payment.

Example: Voluntary impoverishment. If a payor quits a job, most courts will not consider that a change in circumstances.

  1. Enforcing alimony. Failure to pay alimony in a court order constitutes contempt of court. Non-payment of alimony may result in imprisonment, garnishment of wages and other court powers.
  2. Property division. Equitable distribution.
    1. Equitable distribution. The majority of states use equitable distribution as the method of property division. Under equitable distribution the courts examine all assets of spouses, either individually or jointly and divide them into three groupings. In some states all property is subject to distribution as marital property.
    2. Types of property.
      1. Husbands separate property.
      2. Wife’s separate property.
      3. Marital property.
    3. Property groupings.
      1. Separate property. Property acquired by either spouse prior to marriage is separate property.
      2. Tracing. If a person owns property prior to marriage and then trades it during the marriage for other property, that new asset remains separate property.

Example: A owns a condo, purchased prior to marriage. Two years into the marriage the condo is sold and the proceeds are used to purchase securities. The securities are considered separate property because they can be traced back to the sale of the condo, which was purchased before the marriage.

  1. Gifts or inheritance. Gifts or inheritances received individually during marriage remain separate property. Wedding gifts are marital assets.

Example Three years into a marriage W receives an oil painting worth 100k as a gift from her mother. Six years into the marriage H inherits upon the death of his father IBM securities, those items would remain separate property because they are gifts or inheritances.

  1. Agreement. Any property parties agree to treat as separate property during marriage will be separate property. This includes a prenuptial agreement.

Example: Certain property, bonus or other stated property would remain the personal property of H.

  1. Personal injury compensation. Some states consider personal injury proceeds received during marriage as separate property of the injured spouse. Other states treat it as a marital asset.
  2. Appreciation. Some states treat appreciation of value in separate property as a marital asset.

Example: H owns three acres of real estate purchased before marriage with an appraised value of 100k. H marries and three years later, H is seeking a divorce and the fair market value of that property is 250k. Some states will treat that 150k in appreciation of value as a marital asset. In other states that entire value would continue to be a separate asset.

  1. Everything else is marital property including lottery or gambling winnings, salary overtime, pension rights, stock options, future interests in real estate, copyright, patents or bonuses.
  2. Medical and law license are personal assets. If the license is obtained during marriage courts will calculate and economic value and order installment payments are part of a distribution order that reflects that parties fair share of that asset.
  3. A minority of states consider celebrity status a marital asset.
  4. Separate property can be conformed to marital property if the owner had made a gift to the marital unit.

Example: Title to an asset is transferred to both spouses.

  1. Once property is divided what happens?
    1. There is no predisposition to divide assets 50/50. Courts will do whatever is appropriate given the circumstances.
    2. Marital fault is not usually a factor in making property distribution. A minority of states will consider it.
    3. Property distribution is not subject to modification.
    4. The key distinction from community property states, the property will be divided equally. Courts will not consider the equitable list of factors, it simply cuts the marital assets in half.
    5. Taxation of distributed marital assets.
      1. Alimony is deductable by the payor and considered taxable income of the recipient.
      2. Property division in not deductable, non-taxable asset. The recipient of that asset receives it on a carry-over basis. When the property is sold, the recipient will pay any capita gains on that property.
  1. V. Children. If a spouse doesn’t want to have children, they don’t have to. If they want children, then can them. If they do have a child, they have to take care of them.
  2. Family planning.
    1. Contraception. If a married couple does not want to have a child they may use contraceptive devices. The Supreme Court held the government can regulate contraceptive devices, but spouses have the right to their access. A state forbidding access to them is unconstitutional.
    2. Abortion.
      1. Prior to the viability of a fetus states may adopt regulation protecting the health of woman, or the life of a fetus only to the extent that the regulation do not impose an undue burden on the constitutional right to an abortion. Under this test several regulations have been held to be permissible.
        1. Abortions may only be performed by licensed MD’s, or in certain facilities is not an undue burden.
        2. Rules requiring woman certain information regarding the procedure is not an undue burden.
        3. A 24-hour waiting period is not an undue burden.
        4. Parental consent for minors is not an undue burden, provided there is a judicial bypass mechanism in the statute.
        5. A rule requiring spousal notification is an undue burden.
      2. Post viability. A state may forbid abortion entirely except where it is necessary to protect the health of the woman.
    3. Procreation. The right to procreate is a fundamental right under the constitution.

Skinner v. Oklahoma, 316 U.S. 535 (1942). The Supreme Court struck down a state law that provided for the sterilization of habitual criminals.

  1. Education. Parents have the right to education their children outside the public school, subject to a state’s right to provide reasonable educational standards.
  2. New reproductive technologies. Raise conceptual issues because third parties will often be involved in addition to the normal configuration of one mother and one father. Third parties could be sperm donors or egg donors, surrogate mothers or others yet to be imagined.
  3. Uniform Status of Children of Assisted Conception Act. (USCACA). Adopted by only a handful of states.
  4. Reproduction.
    1. Artificial insemination. A woman becomes pregnant not from sexual intercourse, but from the sperm of a third party donor. In most jurisdiction and under USCACA the sperm donor is not considered a parent and has no parental rights. The identity is often a secret and not made known.
    2. In vitro fertilization. An egg and a sperm cell are joined outside the body of a woman. If it is done with the husband’s sperm and the wife’s ovum, and reimplanted in the wife there are no legal issues, that child is the biological offspring of husband and wife. That child is a legitimate child of the couple. If it is done with donor sperm the same rules apply as to artificial insemination. In both cases the woman’s husband is treated as the father, unless he refuses to consent. Same rules apply to donor eggs as to the donor sperm.
      1. Surrogate motherhood. A woman who agrees to bare a child through some form of assisted conception and does this for another couple. USCACA allows surrogacy if all parties draw up a formal agreement, bring it to court and secure judicial approval in advance to the woman’s pregnancy. The court must find the intended mother is unable to bare children and that there has been a social services investigation of both the intended parent’s and surrogate mother. The agreement must be entered into voluntarily. USCACA gives the surrogate the right to terminate the agreement by filing written notice to the court within 180 days of the insemination period. If the court refuses to approve the agreement, the agreement is void. If parties choose to go forward the intended mother and father are treated as the parents. USCACA provides that it is permissible for the surrogate to be provided with payment to the surrogate mother. This is not the majority rule. In most states these agreements are void against a strong public policy against baby selling.
      2. Responsibilities.
        1. Guardians. Parents are the guardians of their children. This means they can act for the child in legal proceedings and they have the responsibility to protect the child’s assets. This responsibility remains until the child reaches the age of majority. Usually 18 but in some jurisdictions 21. Guardianship can also be terminated by court action. Guardianship can be terminated if the child is voluntarily surrendered and if the parents become incapacitated.
        2. Support. Responsibility of both mother and father that continues until the age of majority or until the child gets married. The age can go beyond the age of majority if the child is unable to take care of itself.
          1. In some states parents have the duty to pay for college education.
          2. The amount of support depends upon the needs of the minor, the resources of the parent and any other factors that are logically relevant. All states have guidelines mandated by federal law that specifies the precise amount of child support based on income and number of children based on the aggregate income of the parents.

Example: A couple that have an aggregate income of 6200 a month with two children must pay 16% in child support from that income.

  1. Substantial income. For parents with substantial income courts have more judicial discretion as to the amount of child support. However, the guidelines cover the vast majority of cases.
  2. Collateral obligations. Courts can order a parent to pay for all necessary medical expenses, obtain health or life insurance.
  3. Child support orders can result from paternity litigation, divorce, annulment or other forms of marital termination. When they are entered they are not considered final. They are subject to modification of changed circumstances usually related to the needs of the child or the ability of the parent to pay.
  4. Enforcement of support orders.
    1. Employers. Child support orders can be sent directly to an employer of the parent that is supposed to pay. Those orders obligate the employer to withhold the money directly from the paycheck and submit it directly to the child or custodial parent.
    2. Attachments. A court ordered attachment to assets, sell them and use the proceeds to satisfy the support obligation.
    3. Contempt of court. Failure to pay may result in imprisonment.
    4. License suspension or revocation. In an increasing number of states the drivers license and professional license can be suspended or revoked if the obligor does not pay child support obligations.
    5. Interstate enforcement. Enforcement orders are strong remedies if the obligor continues to live in the state where the order is given. But if the obligor has left the foreign state, the home state of the child, enforcement becomes much greater.
      1. State statute.
        1. The Uniform Interstate Family Support Act. UIFSA. Adopted by all states. UIFSA provides that all states will defer to the first state that entered a support order. Subsequent jurisdictions will refuse to assert jurisdiction and modify an order. The exception is the child’s homes state may trump another state’s order and assert jurisdiction.
        2. UIFSA permits the custodial parent to mail the court order to an out-of-state employer and the out-of-state employer must withhold and forward wages pursuant to the terms of the court order.
        3. UIFSA permits the court order to be registered in the other state and take the initiative to have the out-of-state court to enforce it. The out-of-state court will then have personal jurisdiction because the parent is present in that state and they can be taken to court to enforce the child support order.
      2. Federal statutes.
        1. The Full Faith and Credit for Child Support Orders Act. Requires states to give out-of-state orders full faith and credit.
          1. Prevents forum shopping.
          2. The Child Support Recovery Act. It is a federal criminal offense to willfully fail to pay past due child support to a child that lives in another state if the amount is unpaid for more than a year, or the amount is greater than 5000.00.
    6. Bankruptcy. Alimony and child support payments are not dischargeable in bankruptcy.
    7. Uniform Child Custody and Jurisdiction Enforcement Act. UCCJEA. Every state defers to the state that has the most significant connection of the child. Usually the home state, where the child lives with one parent for at least six consecutive months prior to the custody proceeding. If no state qualifies as the home state because the child has not lived in any state for six consecutive months, the rule is to ask whether the child and one parent have significant connections and if there is substantial evidence available regarding the child’s care, training and relationship.
    8. Parental Kidnapping Prevention Act. PKPA. Requires full faith and credit to be awarded to a state custody order when a state that entered it is the home state of the child.
    9. Substantive standard. How do courts deal with the delicate issue of where the child should be placed? Custody determinations are always made in the best interest of the child.
      1. Custody can be exclusively in one parent, or jointly in both parents.
      2. Physical custody. Where the child lives.
      3. Legal custody. Who makes decisions about the child’s welfare and up bringing.
      4. Joint custody. Physical or legal custody can be exclusive or joint. Courts may come up with a variety of versatile and flexible sets of arrangements. Many states prefer joint custody so the child can enjoy a relationship with both parents. Even where there is a preference for joint custody, it is only appropriate when there is a minimum level of cooperation between the parents. It can be a disaster where both parents are hostile to each other such as bickering, shouting or arguing. Courts will also consider the proximity of the two homes.
    10. Best interest of the child. What is the best interest of a child?
      1. There is no longer any gender assumption that the best interest of the child is with the mother.
      2. The courts now rely on the primary caretaker standard. The courts will ask which parent has been primarily involved in caretaking for the child. Who has stayed home with the child, changed diapers, prepared dinner, etc?
      3. Courts will consider the wishes of the parents and child, especially as the child gets older age twelve.
      4. Courts will consider the child’s adjustment to school, the community and home setting.
      5. Courts will also consider the physical and mental condition of the parties involved.
      6. In some jurisdictions the court will consider religious beliefs, particularly if there is any concern that the religion in question would negatively impact the health or wellbeing of the child.

Example: Seventh Day Adventist or Jehovah’s Witnesses that avoid medical procedures. The court will look at the best interest of the child. However, courts must be cautious because there are 1st amendment concerns about freedom of religion that are implicated.

  1. Racial considerations cannot be used to decide a custody dispute.

Example: A dark skinned child is not necessarily better off in a dark skinned parent home.

  1. Gay sexual orientation is not a disqualification. It does not indicate that the parent is unfit of that the child is disserved. Some jurisdictions impose a burden on parents to show that there are no adverse impacts from living with that parent before they can succeed in getting custody.
  2. Relocating. Once a child custody order has been made, may the custodial parent relocate? Relocation makes visitation more difficult.
    1. The majority of states do provide relocation provided it is motivated by legitimate reasons and is not done to frustrate visitation.
    2. Visitation.
      1. Only denied if it would be detrimental to the welfare of the child.
      2. It’s not conditioned on the payment of child support.
      3. A custodial parent that turns away a non-custodial parent for lack of child support payment would be in contempt of court for violating the visitation order.
      4. Supervised visitation. If the court feels the non-custodial parent poses some kind of danger to the child the court can order supervised visitation with some type of government employee, in order to assure that nothing dangerous or inappropriate takes place.
      5. Third party visitation rights. Typical petitioners are grandparents, but may be other relatives and in some cases, non-blood relatives.

Troxel v. Granville, 530 U.S. 57 (2000). If a parent is otherwise fit, their determination of the appropriateness of non-parental visitation must be given special weight. A judge may not override a fit parents decision regarding third party visitation. A parent’s due process right to raise a child as they see fit trumps the best interest of the child standard and can therefore give the parent effective veto power over grandparental visitation.

  1. A court must find a parent unfit before it can award custody to a third party, such as a grandparent or someone who is not a parent. Using any other approach would be suspect.
  2. Custody awards are subject to modification. Traditionally on a showing of changed circumstances. Modernly, a significant change of circumstances. The logic being stability is a key factor of any child’s circumstances and constant modification of custody can be disruptive to the child and not in the child’s best interest.
  3. Enforcement of custody orders.
    1. Violation is contempt. Taking a child away from the custodial parent is contempt of court. In most states it is a felony.
    2. How does the custodial parent get the child back?
      1. State.
        1. File the custody decree in that second state under the UCCJEA, and the PKPA and seek to enforce it by bringing the child into court and transferring custody back to the custodial parent.
        2. Writ of habeas corpus. File a writ of habeas corpus in the state where the child is living and serve it on the snatching parent, which will oblige them to produce the child.
        3. Federal.
          1. The International Parental Kidnapping Crime Act prevents a parent from removing a child from the states in an attempt to obstruct the other parents right to physical custody.
          2. The Hague Convention Treaty. Requires the return of a child that has been wrongfully taken away from the custodial parent to another nation.
    3. Termination of custodial rights.
      1. Voluntary. A voluntary termination of parental right. Both parents must give consent in writing that the parental rights are terminated.
      2. Involuntary. The state steps in and takes the child from the custodial parent. The state must prove the parent is unfit. Established by:
        1. Abandonment. Failure to support, communicate or interact with the child.

Example: H is the father and leaves W, failing to support and having no contact with the child.

Example: W gives the child to the grandparents and abandons the child by having no contact.

  1. Neglect.
    1. Passive. Failure to provide food, clothing or medical care to the child.
    2. Harmful. Abuse. Physical, sexual or otherwise inflict injury upon a child. In any of these cases the state may step in and assert the grounds and terminate the parental rights. The states must prove its case by clear and convincing evidence.
    3. There is no constitutional right to council for indigent parties in parental termination proceedings, but many states do provide council under statutory regimes.
    4. Once the bond between the parent and child is broken, the child is not available for adoption. In all states licensed agents are permitted to mediate between the adoptive parents and the child. In some states adoptive parents may deal directly with the biological parent.
    5. Payment of money other than the medical expenses related to childbirth to the biological parent is generally forbidden. Fees to intermediaries are closely regulated this is to prevent the buying and selling of children.
    6. Normally there is the biological mother that is willing to give up the child for adoption, and a biological father that is not married to the mother. Is his consent needed for adoption? This depends on his involvement in the life of the child. If he has been uninvolved courts may dispense with his consent. Once a decree of adoption is entered, consent by biological parents cannot be withdrawn.
    7. Who may be an adoptive parent? Any adult is potentially eligible to be an adoptive parent.
    8. A child over a certain age must give its own consent. Usually, children over 12 must consent to their own adoption.
    9. Courts must ascertain the fitness of the prospective adoptive parents. There are interviews and questionnaires and finally a court proceeding. The standard of determination is the best interest of the child.
    10. Adoptions are final.
    11. The adopted child has all the rights and benefits of a non-adoptive child.
    12. In most states the records of adoption are sealed and kept sealed. A minority of states allows an adoptive child to learn the identity of their birth mother.

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