Family Law Outline:
MARRIAGE
Privacy
 Griswold v. Connecticut (1965) – The specific guarantees of the Bill of Rights have penumbras that help to give
them life and substance that create zones of privacy. The right of marital privacy is included therein and cannot be
subject to regulations that have an unnecessarily broad sweep.
 Eisenstadt v. Baird (1972) –A state may not constitutionally discriminate between persons on the basis of their
marital status in regulating the distribution of birth control devices.
 In re J.M. (2003) – The right to privacy gives one the right to define one’s social circle free from public scrutiny
including sexual acts between consenting adults.
 Eisenstadt v. Baird (1972) – A state may not constitutionally discriminate between persons on the basis of their
marital status in regulating the distribution of birth control devices.
Entering Marriage:
 Formal Requirements:
o Licensure
o Solemnization
o GA: License & some form of a ceremony by licensed person
 Denton: Even without the license, there can sometimes still be a valid marriage with a ceremony.
 Without the formal requirements:
o Common Law Marriage (NOT IN GA: O.C.G.A. § 19-3-1.1)
 Competent to Contract
 Then Living together
 Publically known as husband & wife
 Parties had meeting of minds to marry
  Must be established by C&C Evidence (In Re Estate of Hall)
o Putative Spouse: When a marriage is actually void, with one party at fault & the other remaining
innocent. If either or both parties believe in good faith that marriage is valid and have had a marriage
ceremony then the person so believing is a putative spouse entitled to property after death of other person.
(In Re Estate of Vargas)
 Property Division Theories:
o Quasi-Marital Property = Property acquired during the putative marriage is treated as
community property as if it were acquired during a legal marriage
o Marriage as a partnership = Putative wife is entitled to 50% of assets man acquired
during the “second/putative” marriage.
o Void v. Voidable:
 Void: Couple never married and therefore no judicial intervention required to end it
 Can be attacked by anyone, not just one of the spouses
 Cannot be ratified (made into a marriage by some action of the parties)
 No division of property
 Voidable:Is valid until annulled by a judge/requires judicial action to be ended
 Attackable only by parties to marriage
 Can be ratified in some cases
 Can be property division in an annulment proceeding
 Subst. Requirements: (1) Age; (2) Non-Relation; (3) Monogamy; (4) Consent = (A) No Fraud & (B) No Duress
 Constitutional Right to Marry:
o A statutory classification which significantly interferes with the exercise of a fundamental right cannot be
upheld unless it is supported by sufficiently important state interests and is clearly tailored to effectuate
only those interests. (Zablocki) – Equal Protection Violation
o Obergefell v. Hodges = Marriage is a fundamental right:
 1. Decisions about marriage are among the most intimate that an individual can make
 2. The right supports a 2-person union unlike any other in its importance to committed individuals
 3. Marriage safeguards children and families and thus draws meaning from the related rights of
childrearing, procreation, and education
 4. Marriage is the keystone to the Nation’s social order and denying it based on sexual orientation
is demeaning.
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THE DIFFERENCE MARRIAGE MAKES:
Non-Marital Cohabitation:
 Property Division Principles:
o 1. The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial discretion
o 2. The courts should enforce express contracts between non-marital partners except to the extent that the
contract is explicitly founded on the consideration of meretricious sexual services
 Key word = “explicitly”  Even if sexual services are part of the contractual consideration, any
severable portion of the contract supported by independent consideration will still be enforced.
o 3. In the absence of an express contract, the courts should inquire into the conduct of the parties to
determine whether that conduct demonstrates an implied contract, agreement of joint partnership or joint
venture, or some other tacit understanding between the parties.
 Contract-Based Remedies:
o Marvin v. Marvin – Express contracts can be enforced as long as the sexual relationship was a severable
part of the contract/consideration.
o Hewitt v. Hewitt - Recognizing a work-around for entering the institution of marriage – by recognizing
oral agreements similar to marriage – is not permissible for the courts.
o ALI - Creates an alternative status: Domestic Partners. If you meet the classification, you can recover
damages.
Consequences of Marriage:
 Changing Names
o Common Law
o Petition to Court
o Divorce – can change back to maiden name
 Duty to Support:
o McGuire - To maintain an action for suitable maintenance and support, the parties must be separated or
living apart from each other. The court will not interfere this deep in the marital relationship.
o Common Law Necessities Doctrine: common law duty of husband to pay for necessary expenses
(necessary to the well-being) of wife
 Separation Exception:
 If wife left “bed & board” of H without good cause, H not responsible for necessaries of
wife (and could seek damages to others for providing her with necessaries)
 If wife left with good cause, then merchants could seek reimbursement from H for
providing necessaries
o Creditor had burden of proving separation fault of H and therefore H liability
 Spouse seeking to benefit from exception must show that provider had notice of
separation (Forsyth Memorial Hospital v. Chisolm)
 Domestic Violence:
o Civil or Criminal remedies
o Criminal – No Drop Policies
 & Mandatory Arrest Policies.
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DIVORCE
Generally:
 No-Fault Divorce:
o No-fault Statutes: basis for divorce is marital breakdown without requiring proof of why it broke down or
any fault at all
o No Fault Divorce Jurisdictions: have no fault based grounds for divorce
o MMDA: standard for dissolution = irretrievable breakdown, shown by:
 Parties live separate and apart for 180 days; or
 Serious marital discord adversely affecting attitude of one or both parties
o 2 categories of no-fault provisions:
 1. “Descriptive” no-fault jurisdictions: statutes just describe what constitutes a marriage that is
broken down completely broken down (Georgia does this)
 Require a finding that the marriage is “irretrievably broken” = O.C.G.A. § 19-5-3(13)
{Georgia has a little bit of objectivity thrown in}
 Or that the spouses’ relationship is characterized by “incompatibility” (Oklahoma),
“insupportability” (Texas), or by “irreconcilable differences” (South Dakota)
 2. “Objective Rules” no fault jurisdictions: require separation for specific period of time (6
months, one year, two years) for a divorce without proving fault
 Grant divorces upon a finding that the couple has lived “separate and apart” for a
specified period of time
 Can be a bad idea because the people are stuck until that time lapses (like in an abusive
situation)
 Vermont, Montana, Rhode Island, and Utah
o Right to Divorce?
 Boddie v. Connecticut (SCOTUS 1971)
 Appellants could not het divorces because they could not pay filing fees/were indigent
 Brought 14th amendment Due Process Clause claim saying that they were denied access
to courts and process for getting divorce.
 SCOTUS agreed and noted the importance of marriage to society and that lack of access
to divorce means a prohibition on remarriage
 Does the right to marry mean that there is a right to divorce? If so, do no-fault rules or faultbased rules of divorce make more sense?
 Does the social conception of marriage matter to answering the question?
 *The court in Obergefell said that because homosexuality is an immutable characteristic,
it is protected
o Counterargument – you’re already in the marriage, so you already accessed the
right, it’s not limiting the right because it’s already been used.

 Limited No-Fault Jurisdictions
o O.C.G.A. § 19-5-3 Grounds for total divorce → The following grounds shall be sufficient to authorize the
granting of a total divorce: {1st 12 are fault based; #13 = descriptive standard}
 (1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
 (2) Mental incapacity at the time of the marriage;
 (3) Impotency at the time of the marriage;
 (4) Force, menace, duress, or fraud in obtaining the marriage;
 (5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown
to the husband;
 (6) Adultery in either of the parties after marriage;
 (7) Willful and continued desertion by either of the parties for the term of one year;
 (8) The conviction of either party for an offense involving moral turpitude, under which he is
sentenced to imprisonment in a penal institution for a term of two years or longer;
 (9) Habitual intoxication;
 (10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon
the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
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(11) Incurable mental illness…
(12) Habitual drug addiction
(13) The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce
on this ground until not less than 30 days from the date of service on the respondent.
O.C.G.A. § 19-5-15. Effect of divorce: A total divorce annuls a marriage from the time of the rendition of
the decree, unless the divorce is granted for a cause rendering the marriage void originally, in which case
the divorce serves to annul the marriage from its inception. However, the issue of the marriage shall not
be rendered born out of wedlock by a divorce, except in cases of pregnancy of the wife by a man other
than the husband at the time of the marriage, unknown to the husband.
O.C.G.A. § 19-3-5: What Marriages Void: Marriages of persons unable to contract, unwilling to contract,
or fraudulently induced to contract shall be void. However, the issue of such a marriage born before the
marriage is annulled and declared void by a competent court shall be legitimate.
O.C.G.A. § 19-4-5: Effect of annulment is to “return the parties thereto to their original status before
marriage.”
Divorce Jurisdiction:
 A State cannot completely preclude a person from getting a divorce based on an inability to pay. But they can
delay the divorce so that the state can obtain jurisdiction. Domicile of 1 party can be used to support jurisdiction
over the divorce and the states have the right to determine their own domicile rules. (Sosna v. Iowa)
o For divorce, you just need the in rem jurisdiction over the marriage. Therefore, do not need jurisdiction
over both parties.
 For alimony, property division, child support, you need personal jurisdiction over both parties. (Kulko)
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PROPERTY DIVISION
**WORLD OF EQUITY/FAIRNESS
Analysis of property division issues:
1. Is an item property?
2. Is the property marital or separate? Must determine how marital property identified/classified?
3. (If it's marital property) How much is it worth?
4. What is the standard for division? Equitable? Equal?
a. If equitable, what factors are relevant in determining equitable division?
b. What presumptions for distribution exist, if any?
General:
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Historic Common Law Title Rule:
o Property belonged to the spouse who had earned it
o At divorce, each spouse got the property belonging to him or her under these rules—so title under which
property held determinative
o Especially harsh rule when all women’s property became husband’s property on marriage (coverture) and
women did not work outside the homes
o Even now we know women who do work outside the home do not earn the same pay as men—80% of
what men earn
Today: Common Law Equitable Distribution Jurisdictions:
o Step 1: Distinguish between marital property, separate property; Marital property divided equitably
 Marital Property: income earned during the marriage is marital property; all property acquired
or derived from earnings during the marriage
 Separate Property: gifts or inheritance to one spouse is separate property; property acquired
before marriage is also separate property
 Exchanged property (property of one kind exchanged for different/other property): takes on the
character of original property—so if it started off separate, it’s separate; if it started of marital, it’s
marital
o Rule: Marital property is equitably divided; some states have a presumption of equal division that is
rebuttable
o Factors to Consider: [Michael v. Michael]
 Economic circumstances at the time of property division
 Contribution of each spouse including as a homemaker
 Value of non-marital property
 Conduct of the parties during marriage (fault-based factor)
 Custodial arrangement for kids
o Guiding Principle: Marriage is a lifetime shared economic enterprise
Community Property Jurisdictions with Equitable Distribution: (5)
o Community Property = all property earned or obtained through labor of either spouse during marriage
o Separate Property = income earned by either spouse before marriage and any gift or inheritance to just
one spouse
o Exchanged Property = takes on character of original property
o Rule: Community property is equitably divided
 2 jurisdictions have a rebuttable presumption that equitable division is equal division (Nevada &
Idaho).
o Toth Factors to determine “Equitable”
 (Note Trial Court’s Discretion)
 *Contribution
 There are some policy problems with this factor – mainly quantification of household
contributions
 *Duration/Length of Marriage
 Need
 *Estate size of each spouse
 *Marital Misconduct
 *Financial Misconduct
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 * = GA Recognizes this as a factor
Community Property Jurisdictions with Equal Division (3)
o Rule: Strict equal division of community property (straight down the middle)
o Therefore, litigation is generally not over how to divide marital property, but over what constitutes
marital property and its value.
Timing:
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Beginning of Marriage:
o With no premarital cohabitation, it’s fairly easy: when the formal requirements are complied with
o With premarital cohabitation, it can be harder—especially when the parties acquired assets together
during this time
 Some courts permit inclusion of these assets in the marital estate (Georgia has not)
 Others allow separate enforcement
 Others don’t allow the property to be divided at all as part of marital property
 Engagement period ≠ marital income
 End of Marriage:
o Date when the divorce petition is filed
o Date of divorce decree (Georgia – or final maintenance decree)
o CA: When couples live “separate and apart” – but only separation that is complete and final break counts
 Valuation of Property:
o Most recent date: The last date the court can valuate the property (Majority & ALI)
 The day the property is divided. The goal is to make the valuation as close to division as possible
because value can change.
o End of marriage: Valuation at the time of the divorce decree (see end of marriage, above)
Is it Property?
 Earning Capacity & Professional Credentials:
o Yes. A medical license is marital property subject to equitable distribution upon dissolution of the
marriage (in New York). (O’Brien)
 Because marriage is a lifetime commitment, this is not a “reimbursement for contribution” this is
more of an expectancy payment.
 Court Analyzed these factors:
 Contribution and interest in spouse’s profession
 Generally, the factors used to determine property division, but the court used them to
determine whether the degree was property
o Example of the court wanting to do what is fair and finding a way to make that
happen.
o No. In a divorce, one spouse’s advanced degree should be taken into account in a division of the marital
estate when the degree is the result of a concerted family effort, giving rise to an equitable claim of
compensation. (Postema) Factors that tend to show a concerted family effort:
 Emotional and psychological support
 Financial support
 Child bearing
 Homemaking
 Family management
 Daily tasks and loss of time
 Change of lifestyle
 *This court did not necessarily find that the degree was property, but used more of a
reimbursement/restitution approach
o  A majority of jurisdictions deal with degrees through alimony, rather than through property division.
 Goodwill: (Hanson) Goodwill in a professional practice acquired during a marriage is marital property subject to
division. Goodwill = Within a professional setting, goodwill means the value of the practice which exceeds
tangible assets and which is the result of the tendency of clients/patients to return and recommend the practice
irrespective of the reputation of the individual practitioner.
Marital or Separate?
 Debt:
o
Common Law states:
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Generally: debt incurred during marriage, then presumptively marital debt unless clearly have
ongoing benefit to one spouse—ex: educational debt
 A marital debt is one directly traceable to the acquisition of marital property. (Niroo)
 Georgia: marital assets and debts are equitably divided
o Community prop: debts incurred during marriage = presumed community debt (even if only by 1 spouse)
Personal Injury Awards:
o Loss of income = marital or community property
o Pain and suffering = separate property (considered unique and personal)
Workers Compensation Awards: SPLIT
o Majority:
 Received Before divorce = marital property
 Received After Divorce = separate property
o Minority: either
 If accrued during marriage = marital property; OR All of the award is separate property
Appreciation in Value of Separate Property: SPLIT
o Generally: Determination turns on whether the appreciation was due to labor or due to natural increases.
 A natural increase is separate
 Increase from labor of 1 spouse is marital – but this does vary by state
o BUT: In some CL states, the appreciation is always separate; in others it’s always marital
o Georgia: If separate property has increased in value because of efforts of either or both spouses, increase
in value is marital property.
Income from Separate Property: SPLIT
o Example: Rent from separate property
o In some states, income = separate property
o In some states, income = marital property
 If you earn right to income during the marriage, and the rights are deferred, the deferred income
is marital property even if it accrues after the divorce. (Niroo)
o In some states, incomes = marital property if 1 spouse expended effort for the income.
Blended Property: THREE SPLITS
o Blended property = When the property is paid for with both separate and marital property
o Inception Rule: Property characterization (Marital or separate) at the time of acquisition is how the
property is characterized at the time of divorce
o *Source of funds rule: proportional contribution determines division
o Equity: what seems fair – equitable division of blended prop.based on facts & relevant considerations.
Options for Dividing Property at Divorce:
 Shares: Set the shares each spouse will receive when the benefit accrues (often used when there is a possibility of
the property being speculative)
 Lump Sum (Niroo): The court must fix a value for future income. They will use evidence of experts, statistics and
history to determine the award amount.
 Reserve Judgment: Make an appropriate order on the payment at the time the income is received or can be
determined with relative certainty.
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ALIMONY
Theories of Alimony:
 Woman’s dependency on husband
 Disparity in income between women and men
 *Need
o Factors to Determine Need: (Clapp)
 Age
 Homemaker the whole time (can’t be quantified)
 Emotional/Physical Condition of the each spouse
 Joint decisions
 No kids
 Length of marriage
 Standard of living during the marriage
 Subsistence Need (EX: medical care)
o **Need alone is not enough to recover alimony (Marriage of Wilson)
 Considered these factors:
 The length and nature of the marriage
 The duration of spousal support payments
 Earning spouse’s ability to pay
 Supported spouse’s marketable skills and whether they had been hindered by
unemployment due to supporting spouse
 Age and health of the parties (now & at time of marriage)
 Whether there were children of the marriage
 Contribution to career attainments
o *Longer Marriages minimizes alimony award b/c the person seeking alimony has had longer to benefit
from the other spouse. (Wilson)
o Alimony based on the need of one party and ability of other party to pay (O.C.G.A. § 19-6-1):
 Factors to consider: O.C.G.A. § 19-6-5
 The standard of living during the marriage
 Duration of the Marriage
 The age and the physical & emotional condition of both parties
 The financial resources of each party.
 Where applicable, the time necessary for either party to acquire sufficient education or
training to enable him to find appropriate employment;
 The contribution of each party to the marriage, including, but not limited to, services
rendered in homemaking, child care, education, and career building of the other party;
 The condition of the parties, including the separate estate, earning capacity, and fixed
liabilities of the parties; and
 Such other relevant factors as the court deems equitable and proper. {affair?}
 Contribution
 Contract
 Restitution/unjust enrichment
 Loss based alimony
o Determines alimony based on loss to spouse from break-up of marriage: based on concept that
relationship of marriage gives rise to obligations
o Loss could be
 Standard of living
 Loss of educational attainment
 Loss of marketability from being out of job market/loss of earning capacity
 Length of marriage
 Fault
Alimony Standard in the MMDA:
 In the Model Marriage & Divorce Act, alimony is based on two factors:
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o Spouse unable to meet reasonable needs; and
o Unable support self with appropriate employment (including because needs to care for child)
 Fault not considered
 Alimony can be temporary or permanent depending on:
o Financial resources of persons seeking alimony
o Time needed to acquire education or training for appropriate employment
o Standard of living during marriage
o Duration of marriage
o Age & physical condition of spouse seeking alimony
o Ability of spouse not seeking alimony to meet own needs and support needs of other spouse
Georgia & Other Fault States  If there was an affair, you want to argue that the affair was equally the fault of the other
party that you had the affair.
Types of Alimony
 Rehabilitation:
o Need will go away; communicates state expectation that obligee will be able to support self
o Places burden on obligee to get it changed
o Limits obligor’s responsibilities
o Downsides: projections could be wrong; courts want to reserve jurisdiction to avoid unjust/wrong
predictions
o (GA generally takes this approach)
o (Hecker) The terms of an order respecting maintenance or support may be modified upon a showing that
there has been a substantial change in circumstances and that the substantial change has the effect of
rendering the original award unreasonable and unfair. (Even if the failure to rehabilitate was willful)
 Permanent:
o Need will not go away; communicates state expectations that obligee will not be able to support self
o Burden on obligor for change
o Almost unlimited obligor responsibility
o Downsides: projections could be wrong; could result in unfairness to obligor
o (Rainwater) – A court may order indefinite maintenance if a wife’s reasonably anticipated income would
not meet her reasonable needs as determined by reference to the standard of living established during the
marriage.
Modification of Spousal Support:
 Model Marriage and Divorce Act:
o Standard: “Changed Circumstances so substantial and continuing as to make the terms unconscionable”
o Note the impact of the term “to make the terms unconscionable” on the standard?
o Alimony is Presumptively permanent
o Georgia: Generally, modification based on change in income or financial status of either spouse
(O.C.G.A. § 19-6-19)
 Remarriage of Obligee:
o SPLIT: Alimony in most states terminates on remarriage of obligee & does not revive on divorce from
second marriage. Small number allow for inquiry into whether remarriage might affect need level
 Georgia: alimony terminates on remarriage of obligee spouse (O.C.G.A. § 19-6-5)
 O.C.G.A. § 19-6-19: “the voluntary cohabitation of such former spouse with a third party
in a meretricious relationship shall also be grounds to modify … alimony.:
o “‘Cohabitation’ means dwelling together continuously and openly in a
meretricious relationship with another person, regardless of the sex of the other
person.”
o Only grounds to terminate alimony; up to trial court discretion
o The term “remarriage” does not necessarily mean that there has been a marriage in fact, but can
encompass a relationship in which the parties live together for a substantial period of time and appear to
maintain a marital relationship. (O’Connor Brothers Abalone Co. v. Brando)
 *This is based on the theories of marriage.
 An intimate relationship that results in cohabitation can constitute a change in circumstances to
terminate alimony. (Love)
 Jurisdiction:
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o
In order for a court to modify alimony the court must have personal jurisdiction over both parties
established through sufficient minimum contacts with the forum. (Kulko)
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IMPACT OF FAULT ON ALIMONY & PROPERTY DIVISION
Fault and Property Division: 2 universally accepted considerations (in every jurisdiction)
 Fault directly affects the value or amount of the property
 Fault increases the need for a greater share of the property
Fault & Alimony: can come up in 3 ways
 Requirement for eligibility
 Bar to eligibility
 Factor taken into consideration in determination of award
5 types of divorce jurisdictions:
 Pure no fault (20 states): Fault will not be considered unless fault was a “financial cost” exception
 No fault property; limited no fault alimony: (5 states)
 Almost pure no fault: (3 States) Similar to pure no fault, but there may be extreme cases where fault can be
considered for both property division and alimony (i.e. murder, violent assault)
 No fault property; fault in alimony: (7 states)
 Full fault [GA + 14 other states]
Impact of Fault on Alimony in Georgia:
 Alimony: no alimony f adultery or desertion caused the marriage to end (O.C.G.A. § 19-6-1)
 Property division: adultery does not prohibit equitable division, but can be considered-- court is to consider the
“conduct” of each party in determining division of property (O.C.G.A. § 19-6-5)
Why is fault considered?
 As Punishment: States are imposing standards of morality on married parties
o All laws against adultery have been abolished
o The assumption in this is that only 1 party is ever at fault.
 Compensation? – Similar to tort claims
o But Battery & IIED could be brought instead, this might be the better solution. Can compensate for pain
and suffering and emotional harm in the break up of the marriage
o However, very few people bring tort claims. Why?
 Battery: worried about future abuse, embarrassment, may not have any evidence, might have hit
back, shorter statute of limitations
 IIED: Affairs are generally not considered outrageous, which is an incredibly high standard. More
likely to be found if there is a physical encounter.
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PRENUPTIAL AGREEMENTS
Why Couples Enter Prenuptial Agreements:
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Protect children from prior marriage from losing their full share of interest in parent’s property to new spouse
Want to prevent spouse from ever getting share of rich partner’s assets regardless of whether there are children
from prior marriage
Ultimately either reason works to the same end: to avoid rules regarding alimony and property division
o Can remove some or all assets from community property or equitable division regimes
o Alter what would be the alimony
Basic Requirements of Prenuptial Agreements:
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Historically, contracts “contemplating” divorce were not enforceable as against public policy
o GA case, Scherer v. Scherer, was the case that sparked changes in the view towards pre-nups:
 Not against public policy to anticipate divorce and enter agreement as long as contract entered
with “‘full knowledge and without fraud, duress, or coercion.’”
Some states will not enforce an agreement that encourages or incentivizes divorce:
o Seems to depend on whether award was bonus (v. something else—like not placing a spouse in a worse
position than if never married at the other end of the continuum)
Most states (Including GA) requires a writing.
All jxs. require some form of disclosure of assets
Scrutiny for Validity: (Moving from highest to lowest)
 (Button) The 3 requirements for a valid prenuptial agreement are that the agreement must be freely and voluntarily
entered, must make fair and reasonable disclosure of finances, and must be substantively fair.
o 1. Full & fair disclosure by both parties (of financial status – including assets) (procedural)
o 2. Freely & voluntarily entered into (procedural)
 Have to have had a meaningful choice
 Full understanding of the terms – with time to review it
 Access to counsel (Whether or not they had independent counsel is a factor, but is not dispositive)
 Did you understand the default rules?
o 3. Substantively fair to both parties
 Does not have to be equal – the substantive terms just have to be FAIR
 At the time of drafting
o The court will however look at substantive fairness at the time of enforcement if
there has been a change in circumstances.
o What will constitute a significant change in circumstances? Health crisis.
 The Court will not just go to the same conclusion they would if there was no prenup
 Factors:
 Objectives of the parties in executing an agreement
 Economic circumstance of the parties
 Property brought to the marriage by each party
 Spouses other family obligations and relationships
 Earning capacity of each person
 Contributions to the education of the other spouse
 Future needs of the respective spouses
 The age, physical, and emotional health of the parties
 (Gant) Court will uphold prenuptial agreements when the circumstances play out how the parties reasonably
foresaw them at the time of entering the agreement.
 ALI: Substantive fairness only reviewed if circumstances have changed:
o Birth or adoption of child when parties had no common children at prenuptial agreement
o Number of years have passed
o Change having a substantial impact that neither party anticipated
 (Simeone) Prenuptial agreements receive the same level of scrutiny as any other kind of contract
(Also, a prenuptial agreement can’t contract in a way that is against public policy – i.e. putting fault into it in a
no-fault state)
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CHILD CUSTODY
BEST INTERESTS OF THE CHILD
BIC Factors —what’s not permissible is easier to consider than what is:
 Income
 Working mothers presumptively worse than non-working mothers
 Race/ethnicity (mostly)
o Race: cannot be considered except some courts will consider it for multi-racial children—same is true for
culture
 Immoral conduct and sexual conduct on its own does not bar award of custody to a parent without some harmful
effect on child
 Primary caretaker can get a preference; emotional bonds with children also get strong consideration
o Preference (with varying degrees of strength) for giving custody to parent who was primary caretaker
 Preference expressed by giving greater weight to this factor than other BIC factors or by using a
presumption in its favor
 Parents’ interests are not very explicitly taken into account but often in practice are considered
 Gender norms—biases and assumptions can play a role in custody decisions
 DV—is considered but not in a uniform way (i.e., its mere existence does not always have an impact on custody)
 Religion generally not a factor in BIC determination unless it implicates some level of potential or actual harm to
the children—numerous standards range from some potential harm being a BIC factor to actual harm being
required
 Sexual orientation?
BIC - What Can Be Considered:
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
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
Health of parent: could affect custody if seriously impair ability to care for child
Health of child: could affect custody if one parent has better knowledge or ability to care for child
Sex matching: could affect custody, especially for older children
Georgia: threshold for getting legal custody is legal paternity; long, non-exhaustive list of potential BIC factors to
consider (O.C.G.A. §§ 19-9-3(a)(3))
 Alienation of a child’s affections for other parent may also be a factor in determining custody (in GA it is);
sustained alienation can outweigh other factors and deprive offending parent of custody
 Children’s preferences for which parent they want to live with will be given some preference in most
jurisdictions—the older the child generally the more weight to the preference
o In Georgia, the preferences of children of 14+ is nearly dispositive and only overcome by a showing
preference is not in child’s BI
GAL v. Child’s Attorney: different roles; different responsibilities (generally, representing BIC v. expressed
interests)
Visitation Rights:
 Visitation is strongly favored generally and in Georgia too; have to show detriment to child to deny visitation
 So, in Georgia & generally: parents’ behavior on visitation generally only relevant to the extent it harms the child
 Presumption that fit parents act in BIC
o Statutes that (at least as applied) do not give deference to this presumption and some increased weight to
parental decisions when allocating visitation rights are likely unconstitutional
o A showing of harm without visitation is sufficient to overcome presumption but not necessarily necessary
 Georgia: grandparents can seek visitation, however OCGA 19-7-3(c) requires the court to find that harm would
result if visits were not granted.
 Some courts recognize psychological, or de facto, parents, and when they do they can have something like to
parity of legal rights –probably not custody but presumptive visitation (V.C. v. M.J.B.)
 NJ: recognizes psychological parents, based on evaluation of the following factors:
o Biological or adoptive parent has consented to and fostered the establishment of the parent-child
relationship
o Non-legal parent and child lived together in same household
o Non-legal parent assumed responsibility for child’s care, education, development, and contributed to
child’s support (not necessary monetarily) without expectation of compensation
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o
Non-legal parent in parental role for length of time sufficient to establish bonded, dependent parental
relationship
o  Once established, stand in parity with legal parent—but have presumptive rights to visitation but not
custody
 Other standards:
o Parent prevails against non-parent unless parent is shown to be unfit
o Parent prevails unless parental custody shown to cause substantial harm to child
o Parent prevails unless extraordinary circumstances
o Non-parent only has standing to seek custody if the child is not in the custody of the legal parent(s)
 Georgia: in custody dispute between parent and non-parent, there is a presumption in favor of the parent that can
be rebut by a showing of physical harm or significant, long-term emotional harm
o Trial courts have to consider:
 Who are the past and present caretakers of the child;
 With whom has the child formed psychological bonds and how strong are those bonds;
 Have the competing parties evidenced interest in, and contact with, the child over time; and
 Does the child have unique medical or psychological needs that one party is better able to meet.”
Modification of Custody
 Generally, changes in custody require (1) some significant, new change in circumstances; and (2) only
then can courts inquire into whether change would be in BIC (so courts’ inquiry & evidence taken
limited in first part of test)
 Whether change in circumstances test applies may depend on whether there was a court order for custody
v. de facto or de jure custody—some courts will not apply change in circumstances test without a prior
custody determination by a court
 For changes of custody in Georgia: significant change in circumstances test and then a BIC test if the
significant change in circumstances is shown
 For a change in custody based on a relocation:
o Some courts will require a showing that the move is detrimental; then a BIC inquiry showing that
a change in custody is necessary to child’s well-being (LaMusga)
o With potential threshold question of whether the move is in good faith
o Some courts will apply regular change in circumstances (then BIC) test
o Some courts will put burden of proof on non-custodial parent to prove relocation not in best
interests of child
o Some courts will put burden of proof on relocating parent to show relocation is in child’s best
interests
o For joint custody, a BIC standard is generally applied—but relocation is harder
o Constitutional rights to travel v. relationship with children implicated in these cases
o  For Georgia relocation cases: custody modification based on relocation requires a showing of
a new, material change of circumstances (good or bad), and if shown, the BIC applies
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