Blair — Family Law (Spring 2011)
I. CREATION OF MARRIAGE AND FAMILIES
A.Regulating the Creation of Marriage
- Requirements for Valid Marriage:
- Formality (Mandatory)
- Capacity (Substantive Requirements)
- Voluntary Consent
1.Regulating the Method of Marrying
a)“Ceremonial” Marriage - Formal Requirements
A marriage entered by satisfying or at least partially satisfying certain requirements set by
State statue.
b)Licensure:
- License
- Health Screening
- Waiting Period
c)Solemnization
- Restrictions on persons authorized to conduct the ceremony.
- Witnesses
- Registration of Marriage Certificate
d)Effect of Noncompliance
(1)Majority
Formality requirements are directory rather than mandatory.
Failure to comply with one does not render a marriage void or voidable, unless a statute
specifically so provides.
(2)Minority
Many States’ statutes do provide a marriage is void or voidable if certain requirements
are not followed (or State that the requirement is mandatory, not directory).
B.Common Law Marriage
1.A valid, legal binding marriage created by fulfilling requirement originally created by courts
through common law, rather than by statutorily prescribed ceremony.
2.Elements
a)Present Agreement
(1)Both parties must have the intent to enter the marriage at the present time
(2)Agreement that parties are married, not will be married
(3)Can be inferred from circumstantial evidence
b)Cohabitation
(1)Cohabitation = Live Together + Intercourse
(2)In all States except New Hampshire, there is no set amount of time.
c)Public Declaration
(1)Parties must hold themselves out as H and W
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d)Capacity to Marry
(1)Parties must meet the same capacity requirements as for ceremonial marriage.
3.Burden and Standard of Proof
a)Burden of Proof is on the party trying to prove the existence of a common law marriage.
b)Standard of Proof varies by State.
(1)In many States, including Oklahoma, it is clear and convincing evidence.
4.Migratory Common Law Marriage
a)General Marriage Recognition Rule
Marriage is valid if valid where celebrated, unless it violated a strong public policy of
recognizing State or results from evasion.
b)Applied to Common Law Marriage
(1)Most courts will recognize a migratory common law marriage so long as there has
been a substantial attachment to the common law marriage State, and if it does not
violate a strong forum public policy against it.
(a)2 Factors in Substantial Attachment:
i) What kind of marital behavior occurred in the common law State?
(1)Domicile
(2)Temporary Residence
(3)New Agreement
(4)Cohabitation and Holding Out
ii)Over how long a period of time?
(1)Context often affects what court requires.
(2)Three Different Scenarios
(a)Parties domiciled in CLM State, move to a non-CLM State, the non-CLM State
will always recognize it.
(b)Non-CLM State, move and are domiciled in a CLM State, there is a CLM.
(c)Short stay in CLM State (Maryland allows 2 days in State where the party had
been together for 38 years and had 6 kids).
C.Putative Spouse Doctrine
A party to an invalid (void or voidable) marriage who has a good faith belief that his or her
marriage is valid.
1.The doctrine creates a status that entitled the putative spouse to certain rights (which vary by
State) of a legal spouse.
2.Not all States recognize the doctrine, and in those that do, the rights of a putative spouse vary.
3.The doctrine does NOT create a valid marriage.
4.The status ends when the putative spouse learns of the infirmity.
5.No spousal benefits can accrue after that point.
6.Rights accrued previously (up to the point of the discovery of the infirmity) continue to be
protected.
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a) In re Estate of Vargus
(1)Double life as husband and father to two separate families
(2)Split the estate 50/50 between the two families
D.Presumptions
1.The later of successive marriages is valid.
a)Burden is on the 1st spouse of the common partner to prove no divorce was ever granted.
2.A prior marriage continues until divorce is proven.
a)Burden is on the 2nd spouse of common partner to prove 1st marriage ended by divorce or
death.
E.Impediment Removal Devices
1.A marries B ➜ A marries C (bigamous + void) ➜ B dies or divorces A
a)Impediment removal statutes or doctrine of common law marriage can operate to make the
A-C marriage valid upon the divorce or death of B.
F.Regulating Who May Marry
1.Common Regulations
a)Void:
(1) Plural
(2) Incestuous
(3) Same-Gender (Majority)
(a)Minority
i) 5 States + DC Permit Same-Gender Marriages
(1)Massachusetts, Connecticut, Iowa, Vermont, Maine, New Hampshire
ii)3 Recognize, if performed elsewhere
b)Voidable:
(1) Underage
(2) Mental Incompetency
(3) Remarriage within 6 Months (Oklahoma)
(4) Defective Consent
(a)Fraud (fertility, sexual intercourse, must go to the “essentials” of the marriage,
Misrepresentation, Duress, Error, Jest
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Traditional Difference Between Void and Voidable Marriages
Void
1. Effect - No Marriage, i.e. no proceeding
required to end marriage - Void ab initio
2. When - can be attacked after death of one of
the parties
3. Who - Can be attacked by anyone in any legal
proceeding in which issue is relevant
4. Financial differences in some states
Voidable
1. Marriage in effect until annulled
2. Cannot be attacked after death of
one of parties
3. Who can attack depends on the
defect -- Often it is only the parties
or just one party -- Sometimes
guardian or parent
2.Enforcement of Capacity Restrictions - Litigation
a)Criminal sanctions
b)Suit for injunctive or declaratory relief
c)Annulment proceedings
d)Issue of whether a marriage is void can be litigated in any proceeding in which it is
relevant (estate actions, tort proceedings)
3.Constitutional Limitations on State’s Ability to Regulate
a)Constitutional Regulation
(1)Equal Protection - Classifications by Government
(a)Strict Scrutiny
Classifications that distinguish between persons on a suspect bases - race/origin
Classifications that impair a fundamental right
(b)Intermediate Scrutiny
Classifications based on gender or illegitimacy
(c)Rational Relationship
All other classifications
4.Levels of Scrutiny
a)Strict Scrutiny
Necessary or “narrowly tailored” to achieve a compelling State interest
b)Intermediate Scrutiny
Substantially related to an important State interest
c)Rational Relationship
Rationally related to a state interest.
5.Substantive Due Process
a)Permits courts review of the substance of governmental regulation
b)Strict Scrutiny
Used for regulation that significantly interferes with the exercise of a fundamental right
i.e., right to vote; travel; privacy, etc.
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c)Rational Relationship
Used to review regulation that does not impair a fundamental right
6.Predecessor to Zablocki
a) Loving v. Virginia (1967)
(1)First recognized right to marry as fundamental right
(2)But Loving involved suspect class (race)
(3)Which triggered strict scrutiny and struck down miscegenation statute
7. Zablocki v. Redhail
a)Confirmed that the right to marry is a fundamental right entitled to enhanced constitutional
protection
G.Analytical Framework - Constitutional Validity of Marriage Regulations
(1)Does the regulation significantly interfere with the right to marry?
(2)Are the State’s interests compelling?
(3)Is the regulation necessary to achieve the State’s Interests?
- It is under-inclusive?
- Is it over-inclusive?
- Is there a less restrictive alternative?
H.Examination of Constitutionality and Policy Implications of Particular Regulations
1.Incestuous Marriages
a)Consanguinity Restriction (related by blood)
b)Affinity Restriction (related by marriage)
2.Plural Marriage Restrictions
3.Same Gender Marriage
a)Federal Constitutional Protection
(1)U.S. Supreme Court cases prior to Lawrence
(a)Bowers v. Hardwick (1986)
Upheld constitutionality of GA statute criminalizing sodomy in prosecution of
same-gender couple, rejecting substantive due process challenge.
(b) Romer v. Evans (1996)
Struck down CO constitutional amendment prohibiting State or local government
from conferring protected status on individuals based on sexual preference
i) Violation of Equal Protection, under rational relationship test
ii)Desire to harm politically unpopular groups not a legitimate State interest
(2)Lawrence v. Texas
(a)Struck down State statute criminalizing private consensual adult sodomy (5-4)
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i) Substantive Due Process
ii)Rational Relationship test
(b)Important Components of Justice Kennedy’s Analysis
i) What is the liberty interest he identifies?
ii)How does he undermine Bowers’ history and tradition argument?
iii)Is majoritarian view of morality a sufficient State interest?
iv)Can requirements of Due Process change over time?
(1)Rejection of Strict Constructionism
(c)O’Connor Concurrence
i) Would have struck down under Equal Protection
ii)Example of heightened rational relationship analysis
(3)No successful challenges to a prohibition of same-gender marriage based on the
federal constitution until: Perry v. Schwarzenegger
b)State Constitutional Treatment
(1)Predecessors to Goodridge
(a) Baehr v. Lewin (Hawaii Supreme Court 1993)
i) Equal Protection - Gender Discrimination - Strict Scrutiny
ii)State must show compelling State interest to deny license
iii)Motivated by constitutional amendment and reciprocal beneficiaries statute
(b) Baker v. State (Vermont Supreme Court 1999)
i) Equal Protection - Common Benefits Clause
(1)Same gender couples cannot be denied the benefits of marriage
(a)Balancing
ii)Motivated Civil Union legislation
(2) Goodridge v. Department of Public Health
(a)Holding: Massachusetts Constitution compels redefinition of marriage as the
voluntary union of two persons as spouses, to the exclusion of all others
(3) Goodridge v. Massachusetts
(a)Plurality Decisions
(b)Both Equal Protection and Substantive Due Process
(c)Level of Scrutiny - Rational Relationship
c)Constitutional Decisions of States’ Highest Courts on Same Gender Marriage
(1)State Constitution Compels Same-Gender Marriage
(a)Massachusetts, Connecticut, California (no longer), Iowa
(2)State Constitution Does Not Compel Same-Gender Marriage
(a)New York, New Jersey (civil unions), Washington, Maryland, Vermont (civil
unions)
d)Varnum
Holding: Statute violated the equal protection clause of the Iowa Constitution.
(1)Iowa Constitution
(2)Equal Protection Analysis
(3)Intermediate Scrutiny
(4)What State interests were identified?
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(5)Why did they not withstand scrutiny?
e)Characteristics of a Suspect Class
(1)History of invidious discrimination?
(a)Yes
Based on sexual orientation and we are looking at gays/lesbians, there is obviously
a discrimination.
(2)Do distinguishing characteristics bear a relation to class member’s ability to contribute
to society?
(a)Do we discriminate against axe murderers? Yes. But the fact that they are an axe
murdered does not contribute to society.
(3)Is characteristic immutable or beyond member’s control?
(a)Yes.
It is beyond the member’s control. At the very least, it is highly resistant to change,
it can only be changed at the risk of damage to the member, etc.
(4)Political Power of Class
(a)Powerless class? Absolute political powerlessness is not required.
(b)Although there have been recent advances, we still think it is a group that lacks
enough political power to make a substantial change.
(5)Thus, we think under the classic Supreme Court analysis, gays/lesbians are a suspect
class.
f)Intermediate Scrutiny
To withstand intermediate scrutiny the classification has to be substantially related to an
important state interest. i.e., optimal procreation, child rearing, financial considerations, etc
Comparison - Cases Finding State Constitutional Rights
Massachusetts
EP + SDP
Rational Rel. +
Connecticut
EP -
Intermediate Scrutiny
Sexual orientation, like gender is quasi-suspect class.
California
EP + SDP
Strict Scrutiny
Sexual orientation is a suspect class + Marriage is a fundamental right.
Iowa
EP -
Intermediate Scrutiny
g)Summary of Analysis
(1)Right to Marry (broadly framed) fundamental
(a)Substantive Due Process (Massachusetts, California)
(2)Homosexuals are a suspect or quasi-suspect class
(a)Equal Protection (Connecticut, California, Iowa)
(3)Under heightened Rational Relationship (Massachusetts), Intermediate (Connecticut,
Louisiana), or Strict Scrutiny (California)
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(a)Procreation is not a requirement of marriage
(b)Ban hurts kids in same-gender families
(c)Will not increase heterosexual marriage or procreation
(d)Separate but equal (civil union) is not sufficient
h)Cases Finding No State Constitutional Right
(1)Framing Issue - No fundamental right to same-sex marriage - not deeply rooted in
tradition
(2)Not gender discrimination
(3)Homosexuals not suspect or quasi-suspect class
- Not immutable
- Not politically powerless
(4)Rational Relationship
Interests are fostering procreation and encouraging the traditional family structure
i) Current Status - US States with Same-gender Marriage
(1)By Court Decision
(a)Massachusetts, Connecticut, Iowa
(2)By Legislation
(a)Vermont, New Hampshire, DC, Coquile Tribe in OregonFederal Statutory
Regulation
(3)Defense of Marriage Act, 1 U.S.C. § 7, “marriage means only a legal union between
one man and one woman as husband and wife”
j) Additional Recognition
(1)Domestic Partnerships recognized by cities or counties
(2)Private employers voluntarily extend benefits
4.Age and Incapacity Restrictions
a)Majority
(1)18 and above, no parental consent needed
(2)Parental consent age varies, 16-18 Oklahoma
(3)Judicial bypass varies
(a)A judge can give permission to anyone under 18 to marry even without consent
for various reasons including pregnancy, but parent can object
(4)Underage marriage voidable, not void
b)Who May Initiate Annulment (50/50)
(1)Underage party, before reaching majority
(2)In some States, parent or guardian
c)Constitutionality of Age Restrictions
- Different age requirements for men and women unconstitutional
- Courts have upheld constitutionality of age restrictions in genera and of judicial bypass
d)Restriction on Remarriage
(1)Oklahoma
- No remarriage within 6 months of Oklahoma divorce, except to ex-spouse
(a)Enforcement
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i) Criminal
(1)Bigamy for divorcee who remarries in Oklahoma during 6 month period
(2)Adultery for divorcee who remarries out-of-state and cohabits in
Oklahoma during 6 month period
ii)Annulment
(1)Remarriage in Oklahoma can be annulled by either party to second
marriage
5.Invalid Consent
a) Mental Incapacity
b) Intoxication
c) Jest
d) Fraud
- marriage is voidable
- can be sought by victim of fraud.
(1)Standards for Annulment based on Fraud
(a)Essential of the Marriage Test
Fraud must relate to ability or willingness to consummate or ability to
procreate; must go to the “essentials” of the marriage.
(b)But For Test
If, but for the misrepresentation, the party challenging the fraud would not
have entered the marriage, and knowledge of the fraud renders continuation
of the relationship intolerable and harmful to the physical or mental wellbeing of the injured spouse, the marriage will be declared invalid.
i.e. religious differences
e)Duress
(1)In the United States, duress is widely recognized but rarely used, including physical
duress or undue influence over the elderly.
(a)France and England - Forced Marriage Laws
Permits “referential fear of an ascendent” as a ground of duress which permits the
court to interpret duress to include subjective test encompassing parental pressure
I. Conflict of Law Recognition of Marriage Principles
(a)Place of Celebration Rule
Valid if valid where celebrated
(b)Exceptions
i) Violated strong public policy of recognizing State
(1)not dispositive
- common law marriages void but still recognized
- same with cousin marriages
- it is a factor
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(2)Common consent of nations
- Is it the kind of marriage virtually prohibited by most nations?
(3)Greatly dependent upon context
ii) Marriage evasion
(1)Usually will not recognize.
(2)Unless, valid where celebrated and does not violate strong public policy.
(c)Supplemental Basis
Valid if valid in State of common domicile
1.Full Faith and Credit
The Full Faith and Credit Clause of the Constitution, and the federal statute, 28 U.S.C. § 1738,
have NOT been interpreted by the courts to require a State to recognize a marriage celebrated
in another State.
2.Defense of Marriage Act (DOMA)
a)Federal government will not recognize same-gender marriage, 1 U.S.C. § 7
b)States not required by full faith and credit statute to recognize same-gender marriage of
another state, 28 U.S.C. § 1738
3.State Mini-DOMAs
a)At least 40 States have passed mini-DOMA legislation or constitutional amendments
refusing recognition of same-gender marriages performed elsewhere.
b)Some extend non-recognition to alternative statuses.
c)Some State by statute recognize alternative statuses from other States.
4.Federal law does not prohibit states from recognizing other states’ same gender marriages.
J.Creation of Families Outside of Marriage
1.Rights and Duties Between Cohabitants
Rights:
- Contract (Express, Implied, Unjust Enrichment [quantum meruit])
- Equitable Theories (Resulting Trust, Constructive Trust, General Equitable Powers)
- Status (Common Law or ALI)
a)Express Contracts
(1)Different Standards for Validity
(a)Illegal Consideration Doctrine
No enforcement of contract if any part of consideration is meretricious sexual
relationship.
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(b)Severance Doctrine
Severable portion of contract supported by independent consideration would be
enforceable.
(c)Marvin “liberal” version of severance doctrine
Contracts unenforceable only to the extent it explicitly rests on consideration of
illicit sexual services.
(d)Burdens and amenities of married life approach
Contract enforced if it contemplates all of the burdens and amenities of married
life and is not primarily for sexual services.
(2)Form Issues
(a)Statutory Requirement of Written Contract
(b)Statute of Frauds Problems
i) Contract for services that cannot be performed within a year
ii)Contract for transfer of interest in real estate
(3)Problems of Proof
b)Implied Contracts
(1)Some courts imply an agreement from the rendition of services
(Although homemaking services are sometimes viewed as a gift.)
(2)Some court that recognize express contracts will not recognize implied contracts.
(3)Middle Ground: Party must rebut a presumption that homemaking or other services are
a gift.
c)Resulting Trust
(1)Equitable Remedy and quantum meruit
(a)Court concludes based on circumstantial evidence that property was intended by
the parties to be held in trust by one for the other.
(b)Intent must be shown by clear and convincing evidence.
(c)Generally, used where one paid for part or all of property that is titled to other.
d)Constructive Trust
(1)Equitable remedy to prevent unjust enrichment.
(2)Elements:
(a)Defendant received benefit
(b)at Plaintiff’s expense
(c)Defendant’s retention of the benefit was unjustified
e)Unjust Enrichment or Quasi-Contract
(1)Legal remedy
(2)Focuses on unfair increase in one party’s wealth at the expense of the other.
f)General Equitable Powers
(1)Some courts have not used the above labels but have been willing to distribute
property of cohabitants using their general equitable powers.
g)Status
(1)Common Law
Property accumulated during a stable, marital-like relationship, is subject to equitable
distribution.
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(2)ALI
(a)Domestic partnership based on statutory criteria which convey all rights of
married couples, unless they contract out, and applied to same and opposite gender
couples.
(b)Domestic Partners are two unmarried persons who:
i) share a common household with common child for proscribed period of time;
OR
ii)are presumed domestic partners if unrelated and share a common household
for a prescribed period of time, unless evidence shows they did NOT share a
life together as a couple; OR
iii)share a primary residence for a significant period of time and claimant
proves, by circumstantial evidence, that they did share a life together as a
couple.
2.Rights of Cohabitants in Relation to Third Parties
a)Cohabitants have no marital rights from government or third parties with a few exceptions.
II.DUTIES AMONG FAMILY MEMBERS DURING MARRIAGE
A.Duties of Spouses
1.Duty of Support and Control of Property
a)Support
(1)Traditional Approach
(a)H required to support wife irrespective of her means.
(b)Support Obligation
Providing the necessaries: clothes, shelter, food, household supplies, medical and
dental care
(2)Liability to Merchants and Creditors
(a)Traditional Necessaries Doctrine
i) Most States formerly imposed on H liability to creditors for necessaries if H
failed to provide them.
(1)Often H not liable if W wrongfully deserted him.
(2)Often H not liable if he made adequate provision for support of W.
(a)Constitutionality? Equal Protection - Gender Discrimination
(b)Policy?
(b)Modern Necessaries Doctrine
i) Eliminate the Doctrine
ii)Duty of Support Applies to Both (Oklahoma)
iii)Purchasing spouse primarily liable, other spouse secondarily liable if
purchaser unable to pay (emerging trend)
iv)Case by case approach based upon ability to pay (responsibility based on pro
rata share of total spousal resources)
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(c)Modern Necessaries Doctrine - Effect of Separation
i) Various approaches to liability of separated non-purchasing spouse:
(1)Liability unless separation is fault of purchaser
(2)Liability only if separation is non-purchaser fault (Oklahoma)
(3)Duty continues until marriage is dissolved, fault taken into account, but
not dispositive
(4)Fault Irrelevant
To avoid liability, non-purchaser has burden to prove creditor had notice
of the separation at time services provided
(d)Family Expense Statutes
i) H and W both liable for expenses of the family and education of the children.
ii)Applies to items beyond mere necessaries.
(e)Contract
i) Spouses liable based on contract.
(1)Examples: purchase contract with merchant, credit card
(f)Agency Doctrine
i) Spouses liable to merchant if purchasing spouse held to be the agent of the
spouse being sued.
(1)Express Agent
Expressly authorized other to make purchase
(2)Implied Agent
Merchant could have reasonably concluded purchaser had adequate
authority.
- Ongoing marriage can imply authority.
- No objection by non-purchasing spouse to similar purchases in the past
may imply authority unless creditors notified otherwise.
b)Property Rights
(1)Common Law States
(a)The right to own and control property goes with title.
(b)The only property jointly owned is property in joint title.
(c)Each party owns and control the property he or she brought into the marriage and
the property he or she acquires during the marriage, gifts, or inheritance and
earnings. (Oklahoma)
(2)Community Property States
(a)Title does NOT control ownership.
(b)Marriage is a partnership.
(c)Community Property
Property acquired during the marriage by the labor, effort, or industry of
either spouse.
(d)During the marriage, each spouse owns an undivided ½ interest in the community
property.
(e)The earnings of either during marriage belong to both H and W.
In Oklahoma, during the marriage, as a common law state, each spouse retains
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their own property in their own account.
In community property states, each spouse has an undivided ½ interest in each
other’s earning.
At marriage, not including at death or divorce.
(f)Separate Property
Property owned by one spouse prior to the marriage, or acquired during the
marriage by
- gift
- devise, bequest, or inheritance, OR
- in exchange for separate property.
(g)Separate property is owned by its owner.
(3)Management of Community Property
(a)3 Approaches to Gender Neutral Management
i) Sometimes each can act alone to bind the other
ii)Sometimes both must consent (real estate transaction)
iii)Sometimes sole management authority is assigned to one on a gender neutral
basis
(1)Often duty of good faith in imposed
2.Contracts Between the Parties
Traditional Approach
(1)Contracts between spouses related to business are enforceable.
(2)Contracts that attempts to change the essential obligations of the marriage contract as
defined by law are contrary to public policy and unenforceable.
b)Uniform Premarital Act
(1)26 States plus DC (not Oklahoma)
(2)Premarital contracts between spouses are enforceable as to all matters, including rights
during marriage, unless violate strong public policy or criminal law or diminish child’s
right to support.
B.Duties Between Parent and Child
1.Rights of the Child
a)Right to Support
(1)Civil Duty
(2)Enforced by Criminal Penalty
b)Liability to Merchants
(1)Necessaries Doctrine
Parents are liable to merchants for necessaries purchased by an unemancipated child
living in the family. (Oklahoma)
(2)Exception
A child who has voluntarily abandoned the parent’s home may forfeit right to support.
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c)Disable Adult
Some States impose liability upon parents for the support of an adult disabled child.
(Oklahoma)
2.Rights of Parents
a)Financial
- Earning of Child (formerly Oklahoma)
- Filial Responsibility Laws (Majority, not Oklahoma)
b)Custody, Control (Decision-Making), and Obedience
- Children are legally obligated to obey their parents.
c)Constitutional Rights and Limitations
(1)Fundamental right of parent to decision-making authority over child
(2)Typically government limits parental authority only:
(a)in cases of serious mistreatment i.e. abuse, neglect, parental unfitness
(b)when constitutional rights of child are at issue
i) access of minors to contraception and abortion
ii)But children’s constitutional rights are not as strictly protected as those of
adults (balancing)
(1)age restriction on right to marry
(2)Parham - no right to adversarial hearing upon institutionalization with
parental consent, if
(a)independent inquiry by neutral fact-finder, and
(b)periodic review
3.Emancipation
Normally rights and duties of parents end when child reaches age of majority
a)Earlier emancipation
(1)Determined in court action in ex post facto inquiry
(a)i.e., the issue of whether the child was emancipated at a given time becomes an
issue in subsequent litigation
(b)Typical Bases
i) Enlistment in military
ii)Marriage
iii)Child becomes self-supporting
(2)Statutory procedure to become emancipated, completely or partially (Oklahoma)
III.DISSOLUTION OF THE MARRIAGE
A.Grounds and Procedure
1.Types of Actions, Grounds and Defenses
a)Divorce - Dissolution
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(1)Grounds
(a)Historical Overview - Fault System
i) Traditionally, American States regulated access to divorce through a faultbased system.
ii)Divorce was a punishment for the guilty spouse and a privilege for the
innocent spouse.
iii)Response to Restrictions:
(1)broadening grounds for divorce
(2)broadening grounds for annulment
(3)collusion
(4)forum shopping
iv)Key Characteristic: Even when both parties desired divorce, it was difficult
to obtain.
v)Reform
(1)By 1985, all States had abandoned a pure fault system.
(2)Most reform effectively achieved this result:
(a)Fault System (difficult even by consent) was converted to
(b)Unilateral Divorce (divorce if one desires it against wishes of the
other)
vi)No Fault Grounds
A marital breakdown standard:
Key to all: no possibility of reconciliation
(1) Irretrievable Breakdown
(2) Irreconcilable Differences
(3) Incompatibility
(4) Insupportability
(5) Living separate and apart for a period of time
(6) Judicial separation for a period of time
(7) Mutual consent
* Oklahoma (1961) - if at least one thinks the marriage is incompatible,
then it is incompatible.
(2)Pure No Fault
(a)Some States, like California, abandoned all fault grounds
(3)Both No-Fault and Fault Grounds
(a)Some States, like Oklahoma, had both no-fault and fault
(4)Limited (Hedged) No-Fault
(a)Some imposed a long separation in unilateral divorces
(b)Grounds: Either mutual consent or fault or long separation (2 years if no consent)
(5)Only Fault or Mutual Consent
(6)Covenant Marriage (Altering the Grounds by Contract)
(a)More difficult to terminate*
b)Defenses to Fault Grounds
(1)Condonation - forgiveness
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(2)Recrimination - both guilty
(3)Provocation - P provoked D’s conduct
(4)Connivance - P acquiesced
(5)Collusion - agreement
(6)Abandonment
2.Annulment
A judicial declaration of the invalidity of a marriage due to a defect existing at the inception of
the marriage
a)Grounds: marriage is void or voidable
b)Equitable Defenses
To some types of defects primarily of interest to the partner such as fraud or duress.
(1)Clean Hands Doctrine
Party responsible for the defect (fraud) can’t raise the issue
(2)Ratification and Laches
Annulment must be brought upon discovery, or within a reasonable amount of time
thereafter. Continuation of the marriage after knowledge of the problem ratifies
marriage and bars offended spouse from raising the defect.
c)Different Effects
(1)Sometimes procedural advantages
(2)Sometimes different relief available
(a)No permanent alimony or sometimes no temporary alimony
(3)May have different tax consequences
(4)Formerly annulment of later marriage could revive a right to alimony from a previous
marriage
* Today, there are not a lot of differences between annulments and divorces.
3.Legal Separation
(a)Limited Divorce
(b)Separate Maintenance
(c)Equitable remedy for marital support
(d)Legal separation
(e)Alimony without divorce
(f)Judicial separation
(g)Divorce a mensa et thoro (divorce from bed and board)
a)Characteristics:
(1)Contemplates the parties will live apart
(2)Parties are not free to remarry
(3)One spouse may be ordered to pay support to the other
b)Grounds are same as divorce in Oklahoma
c)Generally, most of the relief granted in divorce can be granted in legal separation
(1)custody, visitation, support, property division
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d)In most, if not all States, a request for this status cannot block a request for divorce by the
other partner.
B.Procedural Issues
1.Access to the Court
a)Boddie v. Connecticut - Procedural due process prohibits denying individuals access to
court for marriage dissolution solely on the basis of inability to pay court costs.
(1)Fundamental right of privacy includes right to freedom of choice in marital decisions.
(2)No alternative to court system to adjust marital status.
2.Effect of Incompetency
- Many States hold that a divorce may not be filed by a guardian on behalf of an incompetent.
- A competent spouse may seek a divorce against an incompetent spouse.
3.Pleadings
a)Divorce = Dissolution
b)Caption: In re the Marriage of __ and __
(1)Plaintiff = Petitioner
(2)Defendant = Respondent
(3)Answer = Response
(4)Petitioner (and responses raising new matter) must be verified
4.Temporary Relief
a)More frequently available in divorce actions.
b)Oklahoma System
(1)Automatic Restraining Order
(2)Other temporary relief requires notice and hearing
(3)Temporary restraining order available upon showing irreparable harm to party or child
if no order until hearing (but child cannot be removed ex parte from certified domestic
violence shelter)
(4)Temporary Order terminates on all issues except attorney fees when final decree
entered or action dismissed
(5)Court may reserve jurisdiction to hear contempt proceeding filed prior to final
judgment
5.Waiting Periods
a)Following Filing or Service
b)Interlocutory Decrees
c)6 Months Remarriage Prohibition
6.Finality and Effect of Divorce Decree
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a)In Oklahoma, Decree final when issued (unless dissolution itself appealed).
7.Default
a)In Oklahoma, and many States, must have testimony regarding grounds.
8.Waiver Divorce
a)In Oklahoma, party can waive service and notice of all further proceedings.
(1)Petition must be on file at least 1 day before waiver and signed and acknowledged.
(2)Waiver must be filed with court.
(3)Can’t grant relief greater than that requested in petition.
(4)Better practice is to have both sign decree.
9.Educational Programs - Counseling
a)Many States require parenting education.
b)Oklahoma
Court may order adult parties to attend in all family law actions involving children under
18.
10.Mediation
Many States now have mandatory mediation. Typically, if they do, there is an exception for
domestic violence or abuse.
11.Attorney’s Fees
- Fee shifting usually at discretion of judge.
- Oklahoma - Victim of domestic violence or stalking shall be entitled to reasonable attorneys
fees in dissolution, custody or separate maintenance action.
12.Referees
a)Referee may be appointed to here designated cases as assigned by the presiding judge.
C.Financial Issues
1.Property Division
Community Property States:
AZ, CA, ID, LA, NV, NM, TX, WA
a)Community/Marital Property
Property acquired by the labor, effort, or industry of either spouse during the
marriage.
Separate Property
Property acquired before the marriage, or during the marriage by gift, inheritance,
or in exchange for separate property
Hotchpot
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Court has the power to distribute all property, but takes the source of the property
into account.
(1)Property Rights Upon Divorce
(a)CA, NM, LA
community property must be equally divided, separate property awarded to owner
(b)AZ, ID, NV, TX
community property must be equitably divided, presumption of equal division,
separate property to owner
(c)WA “hotchpot”
court has power to distribute all property, but takes source into account
(2)Common Law Title States
(a)Former system in common law States.
(b) NO States use this system today.
(c)Only divisible property was property in joint title
(d)Everything else distributed to owner.
(3)Common Law States
(a)Common law states are now Common Law Equitable Distribution System
(CLEDs)
(1)Most - Marital property divided equitably, separate awarded to owner.
(2)Some have a presumption of equal division.
(3)Some are hotchpot States in which the court has the power to distribute
all property, but takes the sources into account.
(a)Equitable Distribution
i) Equitable is not necessarily equal.
(1)In most common law States, property is divided without regard to who
has legal title (although title can be evidence of transmutation).
ii)Factors to Be Considered in Equitable Distribution
(1)Equal Division Presumption
(2)Starting Point
(3)Economic Need
(4)Contribution
(5)Duration of the Marriage and Rescission
(6)Marital Misconduct
(7)Economic Fault and Fraudulent Transfer
iii)Areas of Difference at Divorce
(1)Differences are not broken down by historic community property versus
historic common law
(2)Two Primary Differences:
(a)Marital/Non-marital (separate must go to owner) versus Hotchpot
(court has authority to divide it all)
(b)3 States require equal division of community (marital) property and
all other States require equitable division.
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Community Property
Community --> Divided
Separate --> Owner
Hotchpot
Community Divided Equally
Community Divided Equitably
Court Has Power to Divide All
Property
California
Louisiana
New Mexico
Arizona
Texas
Idaho
Nevada
Washington
Common Law Equitable Distribution (CLEDs)
Martial --> Divided
Separate --> Owner
Hotchpot
Some Have Presumption Equitable is Equal
Court has Power to Divide All Property
Oklahoma - No Presumption (Joint Property)
iv)Conflict of Laws - Property Division
(1)Law of Forum
Many States apply the law of the divorce forum State to divide property,
regardless of where acquired or previous marital domiciles (majority).
(2)Law of Marital Domicile
Some States divide property based on law of marital domicile at time that
property was acquired, and can apply law of more than one State to
property of couples who have moved during marriage.
b)Factors to Be Considered
(1)Equal Division Presumption
(a)Many States, even common law states, have a presumption that an equitable
division is an equal division. This is a rebuttable presumption.
(b)Oklahoma does NOT have this presumption.
(2)Starting Point - Equal Division
(a)Even States with no presumption often use equal division as a starting point.
(b)In practice, many Oklahoma judges may also start here, even though Oklahoma
case law reinforces that “equitable” is not necessarily “equal.” Although trial
courts are only reverse fore clear abuse of discretion, grossly disproportion
divisions will be reversed.
(3)All factors go to NEED or CONTRIBUTION.
economic circumstances of each spouse at the time of the division, the contribution of
each spouse to the acquisition of marital property including the contribution of a spouse
as a homemaker, value o the non-marital property set apart to each spouse, the conduct
of the parties during the marriage, custodial arrangements for minor children, the length
of the marriage, any prior marriage of either party, age, health, station, amount/sources
of income, vocational skills, contribution, opportunity,
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(4)Oklahoma - Spousal need is not a factor in property division.
c)Deferred Compensation
Income earned during the marriage is marital even it its receipt is deferred until after the
divorce.
(1)Approaches
(a)Establish at time of divorce each spouse’s share if and when received;
(b)Reverse jurisdiction;
(c)At time of divorce, calculate present value for immediate payment;
(d)Refuse to allocate it, if receipt is too speculative
(2)Example: vacation pay, sick leave, severance pay (split), contingent fees (Oklahoma
says these are too speculative), royalties, insurance commissions on policies
d)Increase in Value of Separate Property
(1)Majority (Oklahoma):
(a) Increase is marital if produced by spousal effort or skill or marital funds.
i) In most states, this is true if the increase is due to the effort of either then
owning or non-owning spouse.
(b) Increase is separate if due to natural increase; i.e. market or economic factors
e)Apportionment - Separate Businesses
(1)Reasonable rate of Return Method
(2)Reasonable Compensation Method
(3)Some takes take an all or nothing approach with no apportionment.
f)Apportionment - Assets Acquired with Separate and Marital Funds
(1)Source of Funds Doctrine (Majority Oklahoma)
(a)property is apportioned between separate and marital property in proportion to the
contributions from separate and marital sources.
(2)Inception of Title
(a)If property was originally separate, it stays separate.
g)Transmutation
(1)Occurs when parties take action that indicates their intent to change the character of
property.
(2)Parties’ express intent can override any theory of classification.
(3)Conduct of parties can also create presumption of intent to change character of
property.
(a)Joint Title
(b)Commingling
(c)Marital Use
h)Timing Issues
(1)Multiple Marriages to Same Spouse
(a)If 1st divorce is vacated, the marital property is all property accumulated since
date of first marriage.
(b)If parties remarry, property they were awarded in the first divorce comes into the
2nd marriage as separate property.
(2)Pre-marriage Cohabitation
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(a)Treat property acquired while cohabiting prior to marriage as marital.
(b)Cohabitation rules govern property acquired during cohabitation, and divorce
rules govern property acquired after marriage.
(c)No division of pre-marriage property.
(3)Acquiring Marital Property
(a)Married couples stop acquiring marital property:
i) when they separate
ii)date divorce petition filed
iii)date the decree is issued (effectively trial date)
iv)trial court’s discretion
(4)Valuation
(a)date of separation
(b)date divorce petition is filed
(c)time of trial/decree
(d)trial court’s discretion
i) Oklahoma gives trial court discretion, but generally uses time of trial.
ii)ALI also uses time of trial unless the value is altered by the actions of either
after the date when they could acquire marital property.
i) What Property is Divisible
(1)Pensions and Other Retirement Benefits
i) Vested
(1)Benefits the employee will not lose if she quits or is fired
(2)Can be mature (eligible to be collected) or not yet mature
(3)Employee’s contribution is always vested
ii)Non-vested
(1)Contingent upon employee continuing employment until some future
date
(a)Divisible
i) Vested - Yes
ii)Un-vested - Yes, in most States (Oklahoma).
(b)Methods of Distribution
i) Present Value Method
(1)Court awards the non-employee spouse a lump sum or other property to
offset the value of the pension benefits at the time of dissolution that are
attributable to employment during the marriage.
(2)Oklahoma and many State prefer this method where possible.
(a)Provides immediate settlement.
(b)Prevents uncertainty.
ii)Deferred Distribution through a QDRO
Non-employee spouse is granted a portion of the benefit to be paid when the
employee spouse is eligible for retirement.
(1)QDRO must satisfy the requirements of Federal Law, if the pension plan
is governed by ERISA, and must be made part of the decree.
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(2)QDRO Method
(a)Determine the amount of benefits attributable to the employment
during marriage.
(b)Determine, of this amount, what share will be awarded the nonemployee spouse.
(c)Draft a QDRO as part of the decree, in compliance with ERISA,
which must be reviewed and qualified by the plan administrator.
(3)Using a QDRO-A non-employee spouse may receive benefits at the time the employee
spouse is eligible to retire, even if actual retirement does not occur at that
time.
(c)Pension Types
i) Defined Contribution
(1)Employer and sometimes employee are obligated to contribute a certain
amount periodically
(2)Value of the individual employee’s account is his proportionate share of
the total plan’s assets at time of divorce - source is statement from plan
administrator
(3)Marital share is the contributions during marriage plus the investment
return attributable to that portion
(4)Examples 401K, Keogh plan, stock bonus plan, profit sharing plans
ii)Defined Benefit Plan
(1)Employee is promised a specific monthly benefit upon retirement
payable for the remainder of her life
(2)The ultimate amount is not necessarily connected to the amount of the
contribution
(3)Courts of many States find these plans cannot be valued based on the
amount of the accumulated contributions of the employer and employee
(d)Pensions Apportionment
Only the portion attributable to marital labor is divisible.
i) Defined benefit plans typically apportioned by a relative time rule - marital
share is based on proportion of marital years to total years of employment.
ii)Defined contribution plans use relative value approach - Marital share is total
contributions during marriage combined with investment gains or losses for
those contributions.
(e)ERISA Complications
i) Boggs (1997)
Invalidated a decedent spouse’s transfer of her interest in retirement benefits
to her sons, as a violation of ERISA’s anti-alienation provisions.
(1)ERISA can preempt State community/marital property law.
(2)QDROs are a special exception designed to protect living divorces
spouses, but not applicable to this case (no QDRO issued).
(2)Military Retirement Benefits*
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(a)Uniform Services Former Spouses Protection Act
i) Gives State court power to treat military retirement pay as marital property
subject to division.
ii)Creates a direct payment mechanism whereby federal government will make
direct payments of former spouse who has been awarded a portion.
iii)But, for direct payment mechanism to apply:
(1)Must have been married for 10 years during which military spouse was
in service.
(2)Cant make direct payments of over 50% to non-military spouse.
(3)Professional Degrees
(a)Approaches:
i) Degree is property subject to division.
ii)Consider non-student’s contribution in alimony
(1)Traditional
(2)Non-traditional
iii)Consider non-student’s contribution in equitable award of property
(b)Valuation
i) Reimbursement
Award=½ Living Expenses Couple+Education Expenses-Student Contrib.
Student Contrib.=(Student Earnings+Separate Funds+Student Loans)
Award=(Amount of Non-Student Spouse’s Contributions)
ii)Restitution
Amount student unjustly enriched
iii)Lost Opportunity Costs
iv)Present Value Increased Earning Capacity
v)Need
(4)Goodwill
Only if you have an ownership interest in a business.
(a)Marital businesses divisible
(b)Valuation Includes:
i) Tangible Assets (property, accounts receivable, minus debts)
ii)Goodwill
(c)Approaches
i) Property
ii)Not Property
iii)Property if value independent of continued presence or reputation of
professional spouse (Majority)
(d)Valuation
i) Capitalization Methods
ii)Fair Market Value
iii)Buy/Sell
(e)Celebrity Goodwill has value.
(5)Personal Injury Awards
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(a)Replacement Approach (Majority, Oklahoma, ALI)
i) Marital
Proceeds compensating for lost wages during marriage and uninsured medical
expenses incurred during marriage.
ii)Separate
Proceeds for future [post-marital] lost wages and medical expenses, pain and
suffering, and mental anguish
iii)Loss of Consortium
Award goes to spouse who suffered that loss.
(b)Timing of Receipt Approach (Minority)
i) Marital if received during marriage
ii)But, courts typically replicate replacement in their equitable distribution of it
(c)Separate - Uniquely personal
(d)When the personal injury claim is still in litigation at the time of divorce, some
courts have still included it, reserving distribution, and other have found it too
speculative.
(6)Workers Compensation
(a)Most courts use replacement approach, similar to personal injury awards.
i) Payments during marriage replace marital earning (marital)
ii)Payments after divorce replace post-marital earning (separate)
(7)State Disability Payments
(a)Replacement Approach
i) Payments during marriage replace marital earnings - marital
ii)Payments after divorce replace post-marital earnings - separate
(8)Social Security
(a)Social Security disability awards - separate
(b)Federal Social Security Benefits - separate
(c)But, several courts have noted that, though they are separate, courts can consider
them in making equitable division of the rest of the property, including a monetary
award.
2.Support Alimony (Maintenance)
a)Maintenance, Spousal Support, Compensatory Spousal Payments, etc.
(1)Payments during pendency of divorce and/or after divorce by economically stronger
spouse to economically weaker spouse.
(a)Oklahoma: Alimony in lieu of property division is property division payments,
not support alimony.
b)Rationale and Factors Influencing Award
(1)Must Be Gender-Neutral
(a)Intermediate Scrutiny
(b)In reality, most recipients are women.
(2)Basic Rationale-Need connected to the marriage
(a)Award is Based on 2 Factors:
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i) Need of economically dependent spouse
ii)Ability of other spouse to pay
(b)Different Definitions of “Need”
i) Subsistence
ii)Middle class standard of living
iii)Marital (pre-divorce) standard of living
iv)Income equalization
(c)Duration of Payments
Duration of marriage has been a significant factor.
Oklahoma criteria for alimony is need rationally connected to the marriage itself.
i) Permanent Alimony
ii)Rehabilitative Alimony
(3)Alternate Rationales
(a)Contribution
(b)Contract
(c)Restitution
(d)ALI:
Compensation for financial losses caused by divorce
i) Loss in living standard experienced by spouse with less wealth or earning
capacity
ii)Earning capacity loss incurred after divorce as result of disproportionate
share of child care or elder care duties during marriage.
(4)Oklahoma Law on Alimony
- Criteria for alimony is need rationally connected to the marriage
- Usually rehabilitative, but some courts have affirmed longer awards
- Burden of proof on spouse requesting alimony to show the need
(5)Fault
(a)Fault is not a factor
(b)Fault of payor is a prerequisite (No States use this today)
(c)Fault of recipient is a bar
(d)Fault is a factor influencing amount
(e)Only egregious fault is a factor
c)Termination Factors
(1)Death of Either Spouse
(2)Remarriage of Recipient Spouse almost always terminated.
(a)Oklahoma - Option to examine continuation, if equitable.
(3)Cohabitation usually terminated.
d)Modification
(1)Substantial change in circumstances affecting ability to pay or need.
(a)Obligor’s income increasing
i) Yes, if the alimony payments were below the standard of living because
husband did not have enough money.
ii)No, if the alimony payments were at the standard of living.
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(2)Many States requires an initial alimony award in order to increase by modification
later.
(3)Imputing income to payor or recipient.
(4)Voluntary impoverishment will not reduce alimony.
(a)Subjective - Were you in good faith?
(b)Objective - Was it objectively reasonable?
Property Division
Alimony
Child Support
Not Modifiable
Modifiable
Modifiable
Not terminated by any events
Terminated by
- Death of either
- Remarriage or
- Cohabitation of recipient
Terminated by
- Death of payor or
- Child attain majority or
- Emancipation
Not dischargeable in Ch. 7
Bankruptcy
Not dischargeable in Ch. 7 or 13
Bankruptcy
Not dischargeable in Ch. 7 or 13
Bankruptcy
3.COBRA
a)Group health plans are required by federal law to offer continuing medical coverage for up
to 36 months to spouses of employees after divorce or legal separation, if non-employee
spouse was covered under the plan on the day before the divorce or separation.
b)Employer is not required to pay the premiums. They must be paid by the non-employee
spouse, unless the employee spouse is ordered to pay them as part of the decree, as alimony
or support.
c)Employee or spouse must notify employer within 60 days of divorce or legal separation.
d)Spouse must elect COBRA coverage within a 60 day election period.
4.Effects of Bankruptcy
a)Neither alimony or child support are dischargeable under either Chapter 7 or Chapter 13.
b)Property division debt is not dischargeable under Chapter 7.
c)Property division debt is dischargeable in Chapter 13.
5.Tax Consequences
a)Alimony, as defined by the Internal Revenue Code
(1) Deductible by payor and taxable as income to recipient (payee) spouse.
(2)Definition - 7 Requirements for Payment to be Treated as Alimony
(a)Payment must be in cash to or on behalf of spouse.
i) Cash includes check and money order, but not personal property or
promissory notes.
ii)Payments to third parties are alimony if the other spouse benefits
economically.
(b)Payment must be required by a divorce or separation instrument.
i) Divorce or Separate Maintenance Decree
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ii)Divorce Order
iii)Written Separation Agreement Incident to Divorce
iv)Written Separation Agreement
(1)Must be signed by both parties.
(2)Actual separation is not required.
(3)Divorce is not required.
(c)Payor and recipient (payee) spouse cannot live together at time payment is made
if they are divorced or legally separated.
(d)Payment must terminate upon the death of the payee spouse.
(e)Parties have not elected different tax treatment in the divorce or separation
instrument.
(f)Parties cannot file joint tax return for year in which payments are made.
(g)Payments are not child support.
Payments are considered child support if:
i) Decree or other separation instrument expressly calls payments child support,
or
ii)It can be inferred that the payment is child support because:
(1)A reduction in payment is based upon a contingency expressly related to
the child, OR
(2)A reduction in clearly associated with a contingency related to a child.
Reductions are presumed to be clearly associated with a contingency
related to a child IF:
(a)A payment is reduced not more than 6 months before or after a child
turns 18, 21, or the local age of majority, OR
(b)Payment is reduced on 2 or more occasions which occur not more
than 1 year before or after a different child attains any specific age
between 18 and 24.
(3)Effect on Bargaining
- Maximize tax saving y placing the tax burden on the spouse with the lowest tax
bracket, and offsetting tax burden to that spouse with higher payments.
- Payee should negotiate benefits to offset tax liability.
- To obtain alimony tax treatment, payments must terminate upon death of payee,
which may be undesirable to payee if payments are really property settlement,
and would otherwise pass to payee’s heirs.
(4)Recapture - Rule Against Front End Loading
(a)What
Recapture rule requires that excess alimony payments from the first 2 years be
recaptured and reported as income in the 3rd year by the payor spouse, with a
corresponding deduction given to the payee spouse in that year.
(b)When
Recapture occurs in the 3rd post separation year, which is the 3rd calendar year
after payments begin under the divorce or separation decree.
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(5)Formula
Excess Amount for Year 2 = Amount Paid Year 2 - [ Amount Paid Year 3 + $15,000]
Excess Amount for Year 1 = Amount Paid Year 1 - [$15,000 +
{Amount Paid Year 2 - Excess Year 2} + Amount Paid Year 3]
2
Total Recapture = Excess Amount for Year 2 + Excess Amount for Year 1
- Rule of Thumb - To
(a)Rule of Thumb - To avoid recapture, the 1st year payment can only be $7,500
greater than the 2nd year payment, and the 2nd year payment can only be $15,000
greater than the 3rd year payment.
(b)Recapture does NOT apply:
i) When payments cease because of the death of either spouse or payee
remarries before the end of the 3rd year.
ii)OR to payments made under temporary support orders or interlocutory
decrees of divorce
iii)OR to extent payment is made for at least 3 years and the amount is fixed
portion of the income from a business or property or other compensation from
employment or self-employment
b) Child Support
(1) Not taxable to recipient nor deductible to payor.
c)Dependency Exemption
(1)Rule
Until the child is 18, the dependency exemption goes to the custodial parent, unless the
custodial parent signs a written declaration that the noncustodial parent may claim the
exemption. After the age of majority, any dependency exemption goes to the parent
who provides over one-half of the child’s support for the year.
(2)Custodial parent is the parent who has custody of the child for the greater portion of
the year.
(3)Different rules apply if either:
(a)The divorced parents together provide less than ½ of the child’s support, OR
(b)The child is in the custody of someone other than one of the two parents over ½
of the year.
(4)Noncustodial parent may get the exemption if the custodial parent signs a waiver,
which an be signed for one year at a time or on a permanent basis. The waiver must be
attached to the noncustodial parent’s tax return.
(5)Child credit goes to parent who is entitled to the dependency exemption.
d) Medical Expenses
Either parent may deduct medical expenses paid by that parent for a child, regardless
of which parent is entitled to the dependency exemption.
e)Property settlement
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(1)Transfers of property between spouses, or between former spouses incident to
divorce, are not taxable events.
(a)No gain or loss is recognized by the transferor.
(b)Transfer is not taxable income to the transferee.
(c)“Incident to divorce” means the transfer is within one year of the date the
marriage ceases, or pursuant to a divorce or separation instrument and the transfer
is within 6 years of the date the marriage ceases.
(2)Transferee takes the property with the transferor’s adjusted basis.
f)Attorneys Fee
(1)Fee incurred for tax planning and obtaining taxable income (such as spousal
support or income from a pension plan) are deductible.
(2)Fees for obtaining child support or resisting alimony are not deductible.
6.Antenuptial and Separation Agreements
a)Antenuptial Agreements
Contract made in anticipation of marriage.
Purposes: regulate rights upon death, transfer property in consideration of marriage,
determine rights during marriage as to financial matters and lifestyle choices regulate rights
upon divorce
*REMEMBER: Property is allowed, Alimony is mostly allowed, Child support is NOT
enforceable and child support terms are NOT enforceable.
b)Modern Approach: Antenuptial contracts are valid.
(1)Limitations on Terms
(a)Property division terms are generally allowed.
(b)Alimony terms are allowed by most, if not all, today.
(c)Child custody terms are not binding on the court.
(d)Child support terms that limit support are not enforceable.
(e)Agreements “encouraging” divorce by specific terms may not be enforceable.
(f)Bad Boy Clauses
i) Fault grounds (Bad Boy clauses) have been refused, but clauses penalizing
divorce filer have been enforced.
(2)Enforceability
(a)Must be in writing. (Statute of frauds and UPAA)
(b)Procedural and Substantive Defects
i) Informed (full and fair disclosure)
(1)Spouse who is to be bound did not have sufficient knowledge as to
other’s financial affairs
(a)No fair and reasonable disclosure AND
(b)No independent knowledge of facts
ii)Voluntary
(1)Understanding Effect
(a)independent counsel, adequate time, understand rights
(2)Oppressive Bargaining Tactics
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(a)coercion, duress, pregnancy, eve of wedding
(b)refusal to marry alone is not grounds to deny
iii)Fair (unconscionable/void as against public policy)
(1)Foreseeability approach to unfairness at enforcement:
Were circumstances at divorce roughly what the parties foresaw at
execution?
(c)Enforceability Issues
i) Some courts require both substantive and procedural fairness
ii)Some require either/or
iii)Some impose higher standard to deny enforcement
iv)Some impose greater scrutiny on alimony terms
v)Burden of Proof is usually on party attacking validity.
vi)UPAA not enforceable if:
(1)involuntarily executed by party against whom it is enforced or
(2)uninformed and unconscionable at execution or
(3)alimony limits or eliminations creates public charge
vii)Oklahoma
(1)Enforceable regarding property, alimony, attorneys fees
(3)Amendment by Conduct
Conduct during marriage can negate earlier written agreement.
c)Postnuptial Contracts
(1)Some States apply the same rules as antenuptial contracts.
(2)Oklahoma does not enforce postnuptial contracts, generally.
d)Separation Agreements
Agreement made between parties during the marriage who are separated or intend to
separate, usually in contemplation of a divorce.
Typically used broadly to encompass settlement agreements made at divorce.
(1)Limitation on Terms
(a)Parties can make agreements that go beyond the statutory powers of the court.
(b)Courts will not enforce terms that violate public policy.
Parties can agree upon all of the terms of a divorce decree: custody, visitation,
property, child support, alimony
(2)Review by Court
(a)States differ on extent of review by courts prior to issuing a decree.
(b)States differ on their binding effect.
i) In some States no terms of agreement are binding on court, although court
will normally follow them. (Oklahoma)
ii)In others, non-child issues are binding on court unless unconscionable.
iii)Pre-decree challenge - general contract bases to challenge.
iv)Post-decree challenge is difficult, typically requiring proof of fraud and other
procedural grounds to attack judgments. Some courts will go beyond contract
defenses and judge fairness.
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Relationship between Separation Agreement and Decree
Decree
- Can be enforced by contempt
- Entitled to interstate recognition as a
judgment
- Alimony modifiable
Contract
- Enforced by contract remedies
- May have right to jury trial for breach
- Normally alimony terms not modifiable unless
contract allows it
(3)Relationship Between Separation Agreement and Decree
(a)Definitions
i) Merger
A separation agreement that is merged with the decree loses its effect as an
agreement and becomes enforceable solely as a court order, not as a contract.
ii)Incorporation
An agreement can be incorporated in a decree, by reference or by setting out
the terms expressly.
(b)Oklahoma
i) If a contract is incorporated in a decree by reference or by being specifically
set out therein, the contract is extinguished-merged
ii)It is then enforceable as a decree, not a contract
iii)Generally, spousal and child support and custody issues in a decree, whether
reached by consent or not, are modifiable.
iv)If only some terms are set forth in the decree, the portion not incorporated is
not extinguished.
v)The contract, as modified by the decree, is left in full force and effect as a
contract.
vi)The part that remains a contract (the unincorporated part) cannot be enforced
by contempt and the court cannot modify any support alimony provisions
contained in that portion, unless the contract specifically allows it.
(c)Other Approaches
i) In some States the contract may be incorporated and not merged, and is
treated as enforceable by both contempt and contract remedies.
ii)Where permitted, this is done by providing in the decree for the survival of
the contract.
iii)MMDA § 306 provide that the separation agreement, unless the parties
object, shall have terms incorporated in the decree and be enforceable as both
a court order and a contract. Alimony can be modified, unless the terms set
forth in the decree state otherwise.
7.Child Support
a)Pre-guidelines
Courts had wide discretion and award amounts varied.
b)Guidelines
(1)Federal Legislation and History
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(a)Child Support Enforcement Act of 1984
i) Each State required by federal law to enact child support guidelines by
October 1, 1987
ii)Penalty for noncompliance was reduction of federal funding
(b)Family Support Act of 1988
i) Since October of 1989, guidelines must serve as a rebuttable presumption of
the correct amount of support to be awarded.
ii)To vary from guidelines, decision-maker must make written findings or oral
findings on record as to why guideline amount would be unjust or
inappropriate in particular case.
iii)Guidelines must be reviewed every 4 years to ensure they result in
appropriate support awards.
(c)Rationale for Federal Intervention
i) Higher initial awards and modifications that keep up with inflation
ii)Uniformity
Enhances perception of fairness and enforceability.
iii)Efficiency
Predictability of outcome enhances settlement.
(2)Different Types of Guidelines
(a)Primary reasons for requiring child support
(1)Serve the child’s interests
(2)Achieve fairness between the parents
(a)Equal Living Standards Model
i) Not adopted in any State
ii)Aims to provide child with standard of living equivalent to noncustodial
parent
(b) Marginal Expenditure Models (most States)
i) Drafters influenced by Espinshade
(1)Child support calculated using research on marginal child expenditures,
i.e., the amount a household spends to maintain its standard of living
when a child is added to the household
(2)Studied 2 parent households
(3)Assumes a base - the amount a couple needs to maintain their standard of
living without children - then asks how much more is required to maintain
that standard of living as each child is added
(4)Found the & of total family expenditure spent on a child is relatively
constant across wide income ranges
(a)These expenditure vary with the number of children, and their ages.
(5)Data flaws produce flawed guidelines - too low for high, too high for low
ii)3 Methods of Calculation under Marginal Expenditure Models
(1)Income Sharing (Majority + Oklahoma)
(a)Based upon the income of both parents
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(b)Uses table to determine amount of support needed, based on
marginal child expenditure data
(c)Income share systems typically assume parents spend a lower
percentage on children as income rises, and thus apply a declining
percentage to the combined parental income.
(d)Advantages
- No need to calculate individual child’s needs
- Takes into account both parents’ ability to pay and needs
(2)POOI or Taxation
(a)Guideline looks solely at obligor’s income
(b)Support is a fixed percentage of obligor income based on number of
children
(c)Percentage typically is constant across all income levels, whereas
income share guidelines assume expenditure lowers as income rises
(d)Advantages
- Simple
(e)Disadvantage
- Does not explicitly take into account custodial parent’s income or
refine percentage based on income
(3)Melson
iii)Enhanced Marginal Expenditure Model - ALI
(1)Uses marginal child expenditure data, but adds a supplement when
obligor’s income exceeds obligee’s
(2)Advantage
- Corrects for the fact that Epinshade’s data assumes base that meets needs
for two parent household when parents are living together
(3)Oklahoma Guidelines
(a)An income sharing, marginal expenditures model
(b)Computation
i) Child support is a percentage of the combined gross income of both parents
ii)Amounts of support are based on number of children, derived from tables
based on marginal child expenditure data
iii)Each parent’s share is based upon that parent’s proportionate share of the
combined gross income
iv)Noncustodial parent pays his or her share to the custodial parent
v)Guideline tables are used to compute base child support
vi)Each parent assumes proportionate share of medical insurance and child care
costs
(c)Parenting Time Adjustment may be triggered when one parent is awarded
physical custody of child at least 121 overnights per year.
i) Overnight = Overnight period of at least 12 hours requiring reasonable
expenditure of resources for child care
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ii)Can lower the amount of support received by the custodial parent,
particularly if the custodial parent has a greater income than noncustodial
parent
iii)Can result in custodial parent with greater income being obligor--if custodial
has no more than 205 overnights
iv)Is presumptive, not mandatory, under statute--Presumption rebutted if not in
best interest of child or increased parenting time does not result in greater
expenditures justifying reduction.
(d)Deviations from Guidelines Permitted:
i) Parties, if represented by counsel, may agree to different amount
ii)Guideline amount would be unjust or inappropriate under the circumstances
iii)But, court must make specific findings of reasons, amount guidelines
otherwise require, and how best interests of child served by deviation.
(4)Specific Issues
(a)Imputed Income
i) Oklahoma allows gross income to be computed using:
(1)actual monthly income
(2)average monthly income for time employed during previous 3 years
(3)minimum wage for 40 hour week
(4)reasonable earnings for person with comparable education and training,
if parent is willfully or voluntarily under or unemployed
ii)3 Imputed Income Scenarios
(1)custodial parent of young children
(2)noncustodial parent who is unemployed or underemployed
(3)voluntary change of income
(a)Good faith?
(b)Reasonable basis?
(b)Seek Work Orders
(c)Exceptions
i) Government Assistance
Means tested public assistance and child support for other children not in
Oklahoma
ii)Visitation, Transportation Expenses
Oklahoma divides between parents in proportion to adjusted gross income
iii)Additional Medical Expenses
Oklahoma permits these to be divided proportionately to parents’ income
iv)Joint Custody
Oklahoma addresses this with shared parenting formula
v)Split Custody
Calculate the guideline formula for each custodial arrangement
vi)Debts
State split on whether they should be considered
Oklahoma - joint debt payments may be deducted from gross income
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(d)Income of a Subsequent Spouse
i) Spouse of Custodial Parent
(1)Step-Parent = No duty to support step-child
(2)Limited Liability can be created by:
(a)Family expense statutes during marriage
(b)Criminal nonsupport laws that cover step-children during marriage
in some states
(c)Duty to support step-children where they are likely to be on welfare
(d)Equitable estoppel creates duty if step-parent’s behavior blocks
support from parent or creates reliance
(e)Contract
(3)Sometimes courts have considered income of custodial parent’s new
spouse as basis for reduction - generally, courts are reluctant to do so
ii)Spouse of Obligor
(1) Kestner Case
(a)Income of obligor’s spouse not calculated into obligor’s income for
purpose of determining payment
(b)But, may be relevant if obligor seeks variance downward based on
financial hardship or because she is stay-at-home because of income
of new spouse
(2)Community property states split on whether income of obligor’s new
spouse should be a factor that increases support
(3)Courts reluctant to reduce child support due to obligation to support new
spouse by obligor
iii)Obligation to Other Children of Obligor
(1)Effect Support for Previous Children
(a)States split on whether support should be lowered for this reason.
(2)Oklahoma
(a)In home children - prior born - deduction if living with obligor over
50% of the time
(b)Step-children - cannot be basis to reduce support to prior children
(3)Effect Support for Subsequent Children
(a)In most states, pre-existing child support for first family’s kids will
affect child support for subsequent-born kids.
(e)Child’s Resources
i) Some will take into account trust income of child.
ii)But, social security payments received as a result of child’s disability NOT
considered
(1)Social security payments child receives as a result of parent’s disability
ARE included as income to the parent on whose record they are paid
AND are credits as payment towards the support obligation of the
disabled obligor.
c)Modification of Child Support
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(1)Bases for Modification
(a)Child support order are modifiable, upon a showing of a
SUBSTANTIAL CHANGE IN CIRCUMSTANCES
i) The change could be in one or both parent’s income.
ii)Today, under guidelines, needs of child often no longer a factor.
(b)Oklahoma
i) A substantial change in parent’s income sufficient, even if no change in
child’s needs.
ii)If parents’ income exceeds guideline tables, courts consider child’s needs as
one factor in setting support.
(c)How much change is material?
i) Some states legislatively define material change.
(1)Oklahoma has no set variance; leaves it to court’s discretion
(d)Is change of guidelines by itself a material change in circumstances?
i) States split, but Oklahoma says no
(e)Incarceration as basis for modification - Courts Split
i) Oklahoma - Not sympathetic
(2)Periodic Review
(a)Federal Law
i) Must be available for all IV-D orders at least once every 3 years
ii)Triggered without need for showing of substantial change of circumstances
iii)Review can be based on:
(1)economic data requested from parties
(2)application of cost of living adjustment
(3)automated method using wage and income tax data already in possession
of state to adjust orders
(a)Oklahoma - Option 1, and seeks modification if amount is no longer
consistent with guidelines.
iv)Many states have adopted some form of automatic review for all cases, no
just IV-D cases.
(3) Federal law prohibits retroactive modification of child support orders.
(a)Modification may take effect no earlier than the date the motion to modify is filed
(b)Can lead to inequitable result, particularly when combined with the rule against
non-conforming payments (i.e., they don’t count)
(c)Possible Exceptions
i) Enforce private agreement to modify, if sufficient proof
ii)Agreement to waive past due amounts
(4)Equitable Estoppel
(a)Some states rely on equitable estoppel to preclude enforcement.
i) Give equitable credit to non-conforming payments.
ii)Or find conduct equitably estops collected based on child’s move, death, or
concealment of child, but there is must disagreement about when this should
occur.
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(b)Can prevent a party from taking a legal position inconsistent with an earlier
action that places the other party at a disadvantage.
(c)Oklahoma
i) Equitable defenses of estoppel, waiver, and laches can bar recovery of
delinquent child support payments.
(1)Laches can prevent a party from collecting if his delay has cause
prejudice to the obligor. (But 10 years not enough)
d)Termination of Child Support
(1)Always apply for a Motion to Modify Child Support.
(2)Terminating Events
(a)Age - 18 or finished with High School
i) Oklahoma - 20 or finished with High School
(b)Multiple Children
i) Child support are not $/child order.
ii)Aging out of one child is basis for modification, but does not automatically
modify the order.
(c)Other Terminating Events
i) Death of obligor, unless parents agree to duty after death
ii)Child’s emancipation by
(1)Entry into military service
(2)Marriage (not in Oklahoma)
(3)Child becoming self-supporting
(3)Support Beyond the Age of Majority
(a)Post-Secondary Education
i) Some states recognize right to post-majority support while child is in school.
ii)Others permit creation of trusts to accomplish the same thing.
iii)States are split on whether estrangement can terminate duty of support for
post-majority child, in states that recognize liability for post-majority support.
(b)Adult Disable Children
i) Liability for support recognized in many states, including Oklahoma
ii)States split on whether disability, or cause of disability must be known to
exist before child reaches the age of majority.
e)Expedited Process - Administrative Order
(1)Federal law requires some expedited process, so that order can be issued within a year
of filing.
(a)Quasi-judicial officers
(b)Administrative hearings
f)Medical Coverage and Qualified Medical Child Support Orders (QMCSO)
(1)Employers and Insurers must
(a)enroll child
(b)can’t disqualify or dis-enroll
(c)withhold premiums from employee’s pay
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(d)must give information to custodial parent and permit custodial to enroll, make
claims, and receive payment
8.Enforcement of Financial Obligations
a)Invalid Defenses to Enforcement of Child Support
(1)Denial of Visitation
(a)Noncompliance of custodial parent with visitation is not a defense to nonpayment
of support in most States. (Oklahoma)
(b)In some States, courts are permitted to so condition support payment
prospectively in intrastate cases.
(c)UIFSA § 305(d) requires that order for support cannot be conditioned on
compliance with visitation in interstate cases.
(2)Statute of Limitations
(a)Oklahoma
i) Court ordered child support is not subject to a statute of limitations.
ii)Liability for support prior to a determination of paternity may only be
imposed for the 5 years preceding the filing.
iii)Parent may bring paternity until child is 18, child may bring action any time.
(b)Federal law requires States to permit paternity to be established any time before a
child’s 18th birthday.
(3)Laches
Courts are hostile to this defense, but some permit it in some circumstances.
(a)Requires:
i) Unreasonable delay
ii)Party asserting defense was materially prejudiced
Oklahoma Court says 10 years was not enough.
b) Enforcement Methods
(1)Criminal Statutes
(a)State Laws
i) Some punish for failure to provide necessaries, others for failure to meet legal
obligation. (Oklahoma has both.)
ii)Criminal prosecution must be instigated by district attorney.
iii)Most useful when no support order exists, so contempt would be
inapplicable.
(b)Federal Child Support Recovery Act of 1992
(1)Past due support must be ordered by court or administrative tribunal
(2)Must be over $5,000 or pay for one year
(3)For a child who resides in a different State than the obligor
ii)Restitution must be ordered at time of punishment equal to past due support.
iii)Constitutionality has been upheld in numerous federal appellate court cases.
(2)Contempt
(a)Nonpayment must be willful (must have had ability to comply)
(b)Person in contempt can be jailed or fined
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(c)Can be used to enforce child support, alimony, property division, attorneys fees,
custody, visitation
(d)Two Types of Contempt
Some States use just one or both.
i) Criminal
(1)Purpose: Punishment
(2)Defendant can not avoid punishment
(3)Federal criminal constitutional protections apply
ii)Civil
(1)Purpose: Remedial - Motivate Compliance
(2)Defendant can avoid punishment by complying.
(3)Criminal protections do not apply and it is up to each State to determine
what protections might be applied.
(3)Oklahoma Problem Solving Court IV-D Cases
(a)Team Approach - Judge, child support State’s attorney, child support court liaison
(b)Focus on obstacles to payment
(c)Makes community referrals
(d)Monitors compliance and provides status reports to court
(4)Income Assignment
(a)A provision in a support order that assigns a specific portion of the obligor’s
periodic income to the obligee.
(b)Initially federal law required States to include an assignment in every child
support order, but it would not go into effect until obligor was in arrears.
(c)IV-D Cases - Federal law now requires States to make income assignment
immediately effective when order is entered for all IV-D cases.
(d)For non-IV-D cases, federal law requires States to include in every child support
order income assignment that is immediately effective, unless:
i) Showing of good cause
ii)Parents agree otherwise in writing
(e)Federal law also requires assignment to take effect if obligor is one month in
arrears.
(f)Assignment will also be implemented upon request of obligee or obligor.
(g)Payor (employer or another who owes obligor periodic payments) is sent copy of
order and can be held liable for amounts that should have been withheld and fined.
(h)Payor may not discipline or fire obligor due to assignment.
(i)Order stays in effect as long as support is due or until arrearages paid, whichever
is later.
(j)Orders can be sent directly to payor in another State, and must be complied with,
without registration.
(k)Can be used to collect alimony owed to obligee entitled to child support in some
States, and for any support alimony in others. (Oklahoma)
(l)Operation of Law
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i) Overdue support by statute becomes a judgment by operation of law on day
payment becomes past due.
ii)Child Support then may be enforced by methods available to enforce money
judgments.
iii)Arrearages on child support orders are entitled to full faith and credit.
(5)Garnishment
(a)Special garnishment provisions, allowing for continuing garnishment for child
support. (Oklahoma)
(b)Traditional garnishment now generally used for enforcement of property division
or alimony in States where income assignment can’t be used.
(6)Liens
(a)Federal law requires each State to have a procedure in place to impose a lien on
real or personal property for overdue child support.
(b)Liens can be used to enforce child support, alimony, or property division in
Oklahoma against real or personal property or worker’s compensation claim.
(c)In Oklahoma, child support arrearages are a lien on the obligor’s real and personal
property, by operation of law, at the time they become past due.
(d)Amount of lien is amount due shown on State child support registry.
(7)Security or Bond
(a)Federal law requires States to have a process permitting courts to order obligor to
post security, bond, or other guarantee.
(b)Court is not required to order every obligor to post a bond.
(8)Revocation of Licenses
(a)Federal law requires States to have authority to suspend, revoke, refuse to issue or
renew licenses of delinquent child support obligors.
i) drivers, professional, recreational, certificates of title
(b)In Oklahoma, obligor must be delinquent in amount equal to 90 days support or
failed to make full payment for 90 days.
(c)OBA will take action against attorneys.
(9)Intercepts
Intercepts of tax refunds, government benefits, judgments, settlements, and lotteries.
(a)IV-D agency can request IRS to withhold past due support for child support
arrearages of $500 or more.
(b)States with State income tax have intercept program as well.
(c)In Oklahoma, DHS can also intercept periodic or lump sum payments from State
or local agencies, judgments, settlements, and lotteries.
(10)Credit Reporting
IV-D agency is mandated by federal law to periodically release to consumer reporting
agencies information on child support obligors in arrears, following notice and
opportunity for hearing to obligor.
(11)Order to Job Hunt
(a)Under-employed and unemployed can be ordered to participate in programs,
absent good cause, and ordered to accept available employment.
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(12)IRS Collection
The IRS can be requested to collect child support arrearages.
c)Termination of Parental Rights
(1)Nonpayment of child support can be a ground in most States.
Methods of Enforcement
Enforcement Method
Child Support
Alimony
Property Division
Criminal Statutes
X
X (Limited)
X
Garnishment
X
X
X
Liens
X
X
X
Contempt Proceedings (Criminal/Civil)
X
X
X
Income Assignment
X
X
Judgment by Operation of Law
X
Security or Bond
X
Revocation of Occupational and Other Licenses
X
Interception of Tax Refunds, Government Benefits,
Judgments, Settlements and Lotteries
X
Credit Reporting
X
Order to Participate in Job Finding or Training
Program
X
Loss of Federal Benefits
(food stamps, loans, passport)
X
IRS Collection
X
Termination of Parental Rights
X
c)Programs to Assist in Locating Obligors and Assets
(1)State and Federal New Hire Directories
Federally mandated program to locate obligors and assets
(a)Employers must report new hires to State directory
(b)State must conduct automated comparisons of new hire directories and IV-D
cases
(c)States must transmit their data to federal new hire directory operated by Federal
Parent Locator Service
(d)FLPS will transmit data to Social Security Administration to verify
(2)State and Federal Case Registries
(c)Federal law requires States to establish case registry
(d)Oklahoma case registry includes all IV-D cases and all child support orders
established or modified after October 1, 1998
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(e)Federal Case Registry, operated by FPLS, contains all information in all of the
State directories
(f)FPLS runs automated matches between case directory and new hire directory so
that obligors can be located anywhere in the nation
(3)Access to Broader Government and Utility Records
(a)FLPS has access to broad federal government records, including:
i) Social Security Administration, Internal Revenue Service, Selective Service
System, Department of Defense, Veterans Administration, National Personnel
Records Center, State employment agencies
(b)Each State has a State Locator Service through its IV-D agency. Federal law
mandates it have access to:
i) Records of State and local government agencies, motor vehicle and law
enforcement networks used by the State, public utility and cable television
records, information from credit reporting bureaus
(4)Bank Match Program
(a)Federal law requires States to enter agreements with State financial institutions to
operate system to match tapes of delinquent obligors with tapes of account holders.
(b)When match occurs, IV-D agency verifies past due support and levies against the
account.
(c)Bank is forbidden to warn the depositor.
(d)Levy freezes account within 3 wording days, DHS sends notice to obligor, who
has 10 days to request administrative review of the levy
(e)WIthin 21 days, bank must surrender assets up to amount of child support
arrearages, unless notified lien is released in full or part.
(f)IV-D agency in one State can ask IV-D agency in obligor’s State to levy against an
account.
(5)Automated Units
Centralized collection and disbursement through state registry for IV-D cases, certain
income withholding cases, and upon request
(6)Social Security Numbers
Federal law and implementing State law require social security numbers on: all child
support order summary forms, all registry records, marriage licenses, death certificates,
Bureau of Vital Statistics records at time birth certificates issues (parents’), applications
for professional and occupational licenses
d)Service
Service at last address of record in central case registry
D.Child Custody
1.Substantive Issues Regarding Custody and Visitation
a)Custody Awards Between Parents
(1)Consideration of the Appropriate Role of the Court
(2)Legislative Standard and Restrictions on Judicial Discretion
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(a)Guiding Principle Best Interests of the Child
(b)Oklahoma
i) §§ 109 + § 109.1
Best interests of Physical, Mental and Moral Welfare of Child
Custody may be awarded to either parent, or both jointly
ii)§ 109 + § 109.3
Rebuttable presumption against domestic abuser, stalker, or harasser, or
parent with history of causing harm or threats of harm
iii)§ 110.1
May order equal access while divorce pending, unless detrimental to child
iv)§ 112
- No preference or presumption for sole or joint custody
- No preference by gender
- No preference based on choice of school (public, private, home)
- Must assure frequent and continuing contact with both
- “Friendly Parent” provision
- Court must encourage sharing of rights and responsibilities of child-rearing
v)§ 112.2 Presumption Against:
- Convicted sex offender or domestic or child abuser
- Parent residing with such person
- Alcohol or drug dependent person, established by clear and convincing
evidence, who can be expected in near future to inflict or attempt to inflict
serious bodily harm on himself or herself or another as a result of such
dependency
- Person likely to expose child to foreseeable risk of material harm
vi)§113
- Shall consider preference of child of sufficient age and maturity
(presumption this is so at 12 or older)
- Not bound by preference, but must make finding why not followed, upon
request
vii)Mother presumed to have custody of out of wedlock child for whom
paternity is not established
viii)Child whom paternity is established - each parent presumed to have
custody until otherwise determined by a court. Unless otherwise ordered by a
court, written agreements, preferably the result of mediation, are encouraged
to document each parent’s physical and legal custody.
(c)Use of Presumptions
Initial Determination - Absent a statutory presumption, neither party has the
burden of proof. Judge determines based on a preponderance of the evidence what
judge determines to be in the best interests of child.
i) Best Interests Case by Case Approach
(1)Courts may use only very limited or specific factors that restrict court’s
discretion only in certain cases.
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(2)Pros and Cons
(a)More individualized decisions
(b)Judge can consider all factors she feel important
(c)Not bound by general factors the law makes predominant
(d)Outcomes are unpredictable
(e)Judge has unbridled discretion
(3)Standard of Appellate Review Provides Little Control
(a)Majority
Affirm unless clear abuse of discretion or against manifest weight of
the evidence
(b)Minority
Permit de novo review (not bound by trial court’s decision but give
trial court’s findings of fact some weight)
ii)Tender Years Presumption
Child of tender years awarded to mother.
(1)No Longer in Use because:
(a)Constitutional Issues
(b)Policy Issue
iii)Primary Caretake Presumption
Parent with primary responsibility for child care, closest relationship with
child, to whom child is bonded greatest degree.
- Focus on who feeds, baths, dresses, disciplines, etc.
(1)Formerly a conclusive presumption
(a)Child of tender years awarded to primary caretake unless
determined unfit
(b)Older child, consider preference
(c)Over 14, goes to child’s choice unless unfit
(2)Other States used it only to affect burden or standard of proof, or as a tiebreaker
(3)Today, in some States, by statute or case law, it is a factor given the
greatest weight or designated important factor, but not a presumption
(4)Presumptions affect burden or standard of proof
(5)Sometimes presumptions are a tie-breaker
iv)Joint Custody
(1)All States now permit joint custody (both legal and physical)
(2)Can be a presumption, of varying strength, or just an option
(3)In most (but not all) States, joint custody may be ordered over objection
of one parent. (Oklahoma)
Factors Oklahoma Courts consider:
(a)Likelihood of parental cooperation/communication
(b)Capacity to provide equally beneficial home environment
(c)Situation will not be unduly disruptive
v)Approximation Approach (ALI)
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(1)Court should award custody in manner that approximates caretaker role
each played during the marriage.
(2)Exceptions:
(a)Each assured a certain amount of custodial time
(b)Keep siblings together, when in best interests
(c)Avoid impractical allocation (distances)
(d)Accommodate preferences of child of specific age
(e)Child would be harmed by gross disparities in attachment with each
parent or ability of parent to meet child’s needs
(f)Parents agree otherwise
(3)ALI Allocation of Legal Decision-making:
(a)Presumption favor joint legal decision-making, if both exercised
reasonable share of parenting prior to divorce, unless history of
domestic violence or child abuse or against best interests.
(b)Where presumption does not apply, consider allocation of custodial
responsibility, past pattern of decision-making, wishes of parents,
and ability and cooperation or parents in past.
(d)Factors Frequently Considered
i) Primary Caretaker
ii)Financial Disparity
iii)Remarriage of a Parent
iv)Post-Decree Time Available
v)Working Mothers
vi)Splitting of Siblings
vii)Substance Abuse
viii)Gender and Ages of Child
ix)Stability of Environment
x)Spouse Abuse
(1)Basis for presumption against abuser (Oklahoma)
(2)Statutory factor
(3)Basis for presumption against Joint Custody (Oklahoma)
(4)Some States provide victim’s departure from home cannot be a negative
factor. (Oklahoma)
xi)Child’s Preference
(1)Various approaches for child over a certain age:
(a)Right to choose, unless parent is unfit
(b)Views must be considered or heard by court
(c)Court must make finding why child’s choice not followed
(Oklahoma)
(2)Process Oklahoma
(a)Testimony may be taken in chambers, with or without parents or
other parties, at court’s discretion.
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(b)If no attorneys, court shall state for record the reason for their
exclusion.
(c)At request of either party, record shall be made of proceeding.
xii)Morality - Sexual Activity of Parents
(1)Taken into account:
(a)When harm to child is prove
(b)When harm to child is substantially likely
(c)When conduct is criminal
(d)Enforce majority’s view of morality
(e)Enforce judge’s view of morality
(f)Enforce psychologist view of morality
(2)National Trend
(a)Conduct must have had a detrimental effect on the child to be
considered
(b)Courts split over homosexual behavior, but many allow
(3)Oklahoma
(a)Moral transgressions may be considered in determining child’s best
interests, but the issue is the effect of parent’s conduct on child.
(b)To consider parental sexual conduct, a court must find that the
conduct had a detrimental effect on the child.
(c)This is true of both heterosexual and homosexual behavior.
xiii)Willingness to Facilitate Contact
(1)Statutory factor:
(a)Willingness to encourage continuing contact with other parent
(b)“Friendly Parent” Provisions
(c)Parental Alienation Syndrome
xiv)Health of Parent
(1)Physical handicap not prima facie evidence of unfitness or detriment
xv)Factors that Interact with Constitutional Principles
(1)Race
Consideration of mother’s interracial marriage as a factor in modification
violated Equal Protection Clause
(2)Religion
Relevant Constitutional Provisions
(a)5th and 14th Amendment - Substantive Due Process
Parents have a fundamental right to control major decisions
concerning their child’s upbringing.
(b)1st Amendment
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.
(3)Two First Amendment Clauses
(a)Establishment Clause
Prohibits government from promoting or discouraging religion.
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(b)Free Exercise Clause (Freedom of Religion Clause)
Prohibits government from interfering with a person’s exercise of
religion.
(4)Establishment Clause
(a)Law Creates Preference
Establishment Clause General Doctrine: Laws that specifically create
a denominational preference are subject to strict scrutiny - must be
necessary to achieve compelling State interest
(b)Purpose and Effects Test
Laws that facially employ no denominational preference, but
- in application favor or disfavor religion, OR
- provide incidental aid to a religious institution,
are subject to a “purpose and effects” test.
Purpose and Effects Test:
- primary purpose of the law must be secular, AND
- primary effect neither advances nor inhibits religion.
(5)Free Exercise General Doctrine
(a)Government action designed to punish or burden religious beliefs or
practices undertaken for a religious purpose - subject to strict
scrutiny
(b)Laws neutral on their face and of general applicability:
- are not subject to strict scrutiny even if they have the incidental
effect of burdening a particular religious practice
- upheld if they do not single out religious behavior for punishment
and are not motivated by a desire to interfere with religion
(6)Beliefs/Practices Distinction
(a)Beliefs cannot be considered in custody dispute.
(b)Practices:
1. Actual Harm
To be considered, it must be shown that religious practice has had
immediate detrimental effect on child.
2. Imminent Danger
(severe and almost certain harm - ALI)
3. Reasonable Likelihood of Harm
To be considered, it must be shown that religious practice creates a
reasonable and substantial likelihood of immediate or future harm to
child.
4. Best Interests Test
Court may consider the extent to which religious practices bear upon
physical or emotional welfare of the child.
(7)Factors to Consider in Religious Control
(a)Normally religious custody goes to parent with custody
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(b)Some courts permit child’s prior religious training to weigh in
custody decision
(8)Visitation Issues
(a)Non-custodial parent is generally not prohibited from exposing child
to different religion, but courts order restrictions on showing of
actual harm.
(b)Generally, non-custodial parent may be ordered to take child to
religious programming chosen by custodial
(e)Role of Attorney for Child and Guardian Ad Litem
i) Guardian ad Litem often fact-finders
(1)Ensure court receives all evidence
(2)Make recommendations regarding best interest
ii)Attorney for child advocates for child’s preference
iii)Rule 1.14 of the Oklahoma Rules of Profession Conduct
(1)When a lawyer reasonably believes that the client is at risk of substantial
physical, financial or other harm, the lawyer may seek the appointment of
a guardian ad litem.
(2)When taking protective action pursuant, the lawyer is impliedly
authorized to reveal information about the client, but only to the extent
reasonably necessary to protect the client’s interests.
iv)Parents have due process right to cross-examine GAL re basis of any custody
recommendation
(f)Duty of Parent’s Attorney
i) Report Child Abuse
(1)Failure to report child abuse is a misdemeanor
(2)No privilege relieves a person from duty to report
b)Visitation of Noncustodial Parents
Strong public policy favoring visitation under almost all circumstances.
If sole custody to one parent, visitation normally awarded to other.
(1)Recent Movement to Encourage
(a)Many States recently enacted statutes to encourage visitation.
(2)Denial Only in Exception Circumstances
(a)UMDA - Only if visitation would seriously endanger child
(b)Oklahoma - Statute says best interest, case law says exceptional circumstances
(c)Courts generally find visitation to be in the best interests of child, and require
showing of detriment to deny
(3)Restricted Visitation
(a)Where necessary, court normally prefer restrictions on visitation to denial
(supervised)
(b)Courts reluctant to impose restrictions on non-marital sexual activities unless
detrimental to the child, split on homosexual
(4)Policy
(a)Parent’s fundamental right to relationship with the child
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(b)Link to recent child support enforcement laws
i) Perception of fairness
ii)Motivation to support
(c)Perceived psychological benefits to child
c)Modification
Custody and visitation orders are always modifiable until child reaches majority.
(1)Generally, all States require:
1. Permanent, substantial, material change in circumstances, AND
2. Modification to be in best interests of child
Burden of Proof is on the party seeking modification.
(a)In Oklahoma, the change must be in the custodial parent’s circumstances, not just
improvement in non-custodial.
(b)Common Additional Basis: Newly Discovered Evidence
Facts revealed that were not known to court at initial hearing, and that could not
have been discovered with reasonable diligence at the time by parent seeking
modification
(2)The Effects of the Changed Circumstance Rule
(a)Puts burden of proof on parent seeking modification
(b)To show change of circumstances AND that modification is in the best interests
of child
(c)Limits evidence at modification hearing
Evidence of pre-decree conduct is generally not admissible, unless facts are
compelling enough.
(3)Time Limits
(a)Some States have time limitations which impose higher standards for
modification. (Ex: UMDA - can’t move to modify > every 2 years)
(4)Agreement
Despite any of the above limitations, parties are always free to modify by agreement, if
approve by court, and usually do.
(5)Joint Custody
(a)TO Joint Custody
i) Some courts require only best interests, not change of circumstances.
(b)FROM Joint Custody
i) Most courts apply same change of circumstances test
ii)Some require higher standard - clear and convincing evidence of changed
circumstances
iii)Some impose only best interests test (Oklahoma)
(c)Oklahoma
i) Modification to terminate joint custody can be made upon request of one
parent, in best interest of child.
ii)If joint custody terminated on modification, modified decree shall be issued
as if no joint custody decree had been made.
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iii)Several courts have found child’s preference could be basis to modify decree
without a negative change in situation.
d)Control After Custody
(1)Relocation
(a)Context of Dispute
i) Non-custodial moves to modify custody due to pending or recent relocation
of custodial parent and child
ii)Non-custodial seeks injunction requiring child remain/return to jurisdiction or
certain geographical area
iii)Contempt for disobedience of court’s order not to relocate.
iv)Battle over restrictions or as factor in initial decree
v)Automatic change provision
(b)State Approaches Vary
i) Burden
(1)Courts split on who should have burden and what standards should be.
(2)Courts also split on whether a move constitutes a change of
circumstances that will trigger a reconsideration of custody.
(3)Bad faith moves likely to be thwarted under all standards. Thus, good
faith is a threshold consideration.
(4)Trend toward allowing greater freedom to relocate, using balancing or
demonstration of harm approaches.
ii)Standards
(1)Former Restrictive Approaches
(a)Burden of proof on relocating parent to demonstrate exceptional or
compelling circumstances for move related to child’s best interests
(b)Custodial parent must show real advantage to move
(2)Current Approaches
(a)
1. Custodial parent must show sincere good faith reason
2. Noncustodial must show risk of harm or detriment to child
from move or not in child’s best interest
(b)Balancing test
(c)But, several States put burden on relocating parent to show move is
in child’s best interests.
(d)Some say more constitutes a change in circumstances.
(3)Oklahoma
A parent entitled to custody has a right to change the residence of the
child, subject to the court’s power to restrain a removal that would
prejudice the rights or welfare of the child.
(a)Duty of each to notify other of move
(b)Proposed relocation may be a factor in motion to modify
(c)Relocating parent has burden of persuasion to show relocation is in
good faith
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(d)Non-relocating has burden to show proposed relocation is not in
best interest of child
iii)Different Approach with Joint Physical Custody
Courts may apply different, more restrictive standards with joint physical
custody.
iv)Policy Implications
(1)Some courts recognize constitutional right to travel is impaired by
restrictive relocation rule.
(a)Require showing that move is detrimental to child to block move or
modify on that ground.
(2)Constitutional right to relationship with child is impaired by move.
v)Constitutional Challenge
(2)Name of Child
(a)Modern Treat:
Best Interest Standard - Permit change if plausible justification.
(b)Traditional Approach
Father has protectable interest in children bearing his surname
i) Oklahoma
(1)Every parent whose parental bond remains unsevered has a cognizable
claim to have the child bear the same legal name as that by which the
child was known at the time the marriage ended.
(2)A court may change the name of a child over objection of father, if he
has been accorded due process notice, but only under compelling
circumstances.
e)Award of Custody or Visitation to Third Party
(1)Visitation to Third Parties
(a)Grandparent Visitation
i) Troxel
(1)14th Amendment protects parent’s right to raise child without undue
governmental interference
(2)A presumed parent is presumed to act in child’s best interests
(3)Favor a presumption favoring a fit parent--must be some type of
deference to parent
ii)States split on standards for grandparent visitation
(1)Some require showing of harm by grandparent
(2)Others find best interest standard is acceptable if there is a presumption
favoring parent
iii)Oklahoma Statute
Grandparent visitation can be ordered only if:
(1)It is in the best interests of the child
(2)Parent is unfit, OR presumption favoring fit parent rebutted by proof
child would suffer harm or potential harm without visitation; AND
(3)Nuclear family has been disrupted.
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iv)Oklahoma Case Law
(1)If parent objects to visitation by grandparents, grandparents must show
child will be harmed by denial to prevail.
(2)If grandparent already has court ordered visitation, mother requesting
termination of the visitation must show change of circumstances
adversely affecting child.
(3)Where grandparent had visitation based on agreed court order, mother
must meet change in circumstances test to terminate grandparent
visitation.
(b)Stepparents
(c)Siblings
i) Arkansas - Right to petition for visitation with sibling, regardless of degree of
blood relationship, if parent had denied access, in domestic relation actions.
ii)Louisiana - Right to sibling visitation upon death or incarceration of parent or
legal separation or physical separation for more than 6 months of parents.
iii)Many States have sibling visitation statutes in their juvenile code.
iv)Constitutionality
(1)Troxel may limit constitutionality of straight “best interests” standards
(2)“Best interest” statute permitting sibling visitation upon death of parent
held unconstitutional after Troxel, as violation of liberty interest of parent
(2)Constitutional Restrictions
(a)14th Amendment - Substantive Due Process
Every parent (whose rights have not been terminated) has a fundamental interest in
the care, custody and control of his or her child. (Troxel)
(3)Custody - State Standards Vary
(a)Unfitness (Traditional)
i) A parent will prevail in a custody dispute over a non-parent unless the parent
is unfit, as a matter of constitutional right.
(1)In Oklahoma, recognized under both State and Federal constitution.
ii)Unfitness generally requires proof of severe parental inadequacy rising to the
level of child abuse or neglect or inability to care for the child, or other
conditions that will cause serious physical or emotional harm if child is left
with the parent. Unfitness is not a comparative standard.
iii)Oklahoma Case Law
(1)Non-parent must prove unfitness by clear and convincing evidence to
prevail over parent.
(2)Trial court must specifically find that parent cannot be reasonably
expected to provide of the child’s ordinary comfort or intellectual or
moral development.
(3)Order must contain conditions constituting unfitness so that parent
knows what what must be corrected.
(4)Upon showing condition corrected and guardianship no longer necessary,
parent is entitled to regain custody.
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iv)Oklahoma Statutes
(1)Appears to be best interest test, with presumption to parent, but must be
applied in light of Okla. Sup. Ct. ruling re constitutional requirement of
unfitness.
(2)Creates hierarchy of third party custodians, with grandparents following
parents.
(3)Upon death of custodial parent or loss of custody, non-custodial has
statutory right to custody unless one of six factors present.
(b)Extraordinary Circumstances
i) 3rd party prevails over parent only in extraordinary circumstances
(1)de facto parents can invoke
(2)otherwise narrowly construed
(c)Presumption Favoring Birth Parent
i) Straight best interests plus presumption that natural parent is best.
(d)Best Interests Alone
i) Best interests test alone
ii)Some courts find this unconstitutional
iii)Some State apply best interests to child in actual physical custody of 3rd
party for substantial amount of time.
(e)Psychological Parent
i) Consent of parent to relationship
ii)Lived with child in household
iii)Assumed significant responsibility without compensation
iv)Long enough to bond (ALI = 2 years)
(f)Standing
i) Some States do not permit a 3rd party standing to seek custody if child is in a
parent’s physical custody.
ii)Psychological parent may have standing.
(4)Modification
(a)In some States, once a parent can prove they are fit, they are entitled to return of
child.
(b)In others, once custody awarded to non-parent, the parent’s presumptively
superior claim is ended, and parent must prove change of circumstances.
(Oklahoma)
E.Modification and Enforcement
1.Jurisdiction over Termination of Marital Status and Financial Issues
a)Subject Matter Jurisdiction
(1)Federal Courts - Domestic Relations Exception to Diversity
(2)State Court in General
(3)Special Statutory Limitations
(a)Child Custody and Visitation
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i) U.C.C.J.A. and U.C.C.J.E.A. (later)
ii)P.K.P.A. (later)
(b)Child Support and Alimony
i) U.I.F.S.A. (later)
ii)Federal Full Faith and Credit for Child Support Orders Act (later)
b)Durational Residency Requirements
c)Personal or Territorial Jurisdiction
(1)Over Status of Divorce
(a)Constitutional Requirement
i) One party must be domicile in forum State.
(b)State Long Arm Statutes
(2)Over Financial Incidents of Divorce
(a)Constitutional Requirement
i) Traditional Bases Satisfying Due Process
(1)Service in Forum State
(2)Domicile in Forum State
(3)Consent
(4)Minimum Contacts
ii)State Long Arm Statutes and UIFSA
iii)Seeking Spousal Support form Second State
iv)Continuing Jurisdiction
v)Federal Military Pensions
d)Challenges to Judgments on Jurisdictional Grounds
(1)Divorce Decrees from other States
- Entitled to Full Faith and Credit
- Decree subject to collateral attack for jurisdictional defect if issued by default
- If Defendant entered appearance in the original action, the decree may not be
collaterally attacked.
e)Venue
(1)Venue focuses on proper county. Rules vary by State.
(a)Venue in divorce or annulment proper in county where:
i) P has resided for 30 days immediately preceding the filing of the P.
ii)D resides at the time the petition is filed.
(b)Action may be assigned for trial to any county in the district by chief justice.
(c)Legal Separation - Venue proper in county in which P or D resides when petition
filed.
(d)If both file in county with proper venue, first divorce action filed has priority.
(2)Transfer upon application of a party is permitted to another county where venue would
be proper and applicant resides if:
(a)If opponent resides in another state, or P has left state for over 6 months; OR
(b)Original county is inconvenient forum under UCCJEA criteria, § 207
Applies to interstate, but adopts factors:
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- evidence is likely to be in another county
- the distance
f)Foreign Divorces
(1)Comity: Affords recognition, if:
- issuing court had SMJ under its own rules; AND
- won’t violate public policy of the recognizing state
(2)US notions of due process met requiring:
- one party domiciled in nation; AND
- Defendant is given notice
(3)Exception: Bilateral Quickie Divorces
Neither party domiciled in the forum
(a)One party physically present and appears in foreign court
(b)Other party appears in person or through attorney and consents to juris
i) Recognized by NY, Virgin Islands
(c)Most states do not recognize
(4)NO states recognize Unilateral (where only one appears and other does not appear or
consent) or mail order foreign divorces where neither party personally appears.
g)Estoppel (This applies to all divorces.)
Who can be estopped from attacking the validity of a decree?
(1)Spouse who obtained the decree
(2)Original partner of spouse who obtains the decree, if he or she accepted benefits or
remarried
(3)2nd spouse of spouse who obtained the decree, if he or she participated or remained in
the 2nd marriage long after discovery of the defect
States vary regarding the extent to which they apply estoppel.
h)Local Action Rule
Where parties own land outside the forum state, the divorce court does not have jurisdiction
to award title, even if the court has personal jurisdiction over the parties.
BUT, forum divorce court can divide property by ordering one party to convey real
property located in the other state
- forum state may hold party who refuses in contempt
- situs state will recognize and enforce such orders
i) Tribal Courts and State Court Jurisdiction over Tribal Members
(1)State courts have no jurisdiction to grant a divorce when both parties are tribal
members domiciled in Indian country.
(2)Oklahoma District Court Rule 30 - Full faith and credit to tribal judgments for tribes
that grant reciprocity to state court judgments.
2.Interstate Support Orders
Establishment, Modification and Enforcement
a)History
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(1)1950 - Uniform Reciprocal Enforcement of Support Act (URESA)
(2)1968 - Revised Uniform Reciprocal Enforcement of Support Act (RURESA)
(a)Established two step proceeding permitting custodial parent to file in initiating
state, and have papers forwarded to responding state with personal jurisdiction
over obligor, for hearing and issuance of order, without requiring appearance of
obligee at hearing.
i) Major Problem - Multiple inconsistent orders in different states
(3)1992 - Uniform Interstate Family Support Act (UIFSA)
(a)goal was to eliminate multiple support orders
(b)Applies to interstate support proceedings involving child support or alimony
(c)UIFSA does not apply to initial proceedings when obligor and obligee reside in
same state (unless child moves out-of-state)
(4)1994 - Federal Full Faith and Credit for Child Support Orders Act
(a)Applies only to child support
(not alimony and does not do everything that UIFSA does)
(b)Imposed UIFSA’s restrictions on modifying child support orders of other states,
UIFSA’s requirements to enforce orders of other states, and UIFSA’s choice of law
provisions on all states through federal statute
(5)1996
(a)UIFSA was slightly amended
(b)Federal welfare reform law required all states to pass 1996 version of UIFSA by
Jan. 1, 1998
(c)Remaining states thus repealed their URESA or RURESA and all enacted some
version 96 or 01
(6)2001 - NCCUSL creates new amendments to UIFSA
(a)2001 amendments largely clarify, make application to international orders more
clear, make very few substantive changes, and are consistent with federal
FFCCSOA (which is still in effect and binding on all states).
(b)No federal law requires adoption of 2001 amendments.
(c)As of 2010, 21 states (including Oklahoma) plus DC, have enacted 2001
amendments. Most other states still have 1996 UIFSA in effect, although each year
more are enacting 2001 or 2008 amendments.
(d)2008 version could go into effect if US ratifies the Hague Maintenance
Convention -- not effective at present in any state, although 5 states have passed it.
b)Federal Full Faith and Credit for Child Support Orders Act
Child Support ONLY
c)Uniform Interstate Family Support Act
Child Support and Alimony
(1)History
(2)Establishing Initial Support Orders
A state court establishing, modifying, or enforcing a child support order applies its own
law, i.e., forum state law.
(a)Could go through private counsel or by IV-D attorneys.
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(3)Special Evidence, Procedural, and Substantive Provisions
(a)Identifying information may be withheld if it would put party/child at risk
(b)Special hearsay exceptions
(c)Best evidence rule exception
(d)Court may (in 2001 amendment “shall”) permit testimony by deposition,
telephone, audiovisual or other electronic means
(e)Adverse inference may be drawn from 5th Amendment refusal to testify
(f)Spousal privileges abolished
(g)Tribunals authorized to communicate and cooperate to assist with discovery
(h)Petitioner cannot be required to pay filing fee
(i)Obligor may be assessed costs attorney fees if obligee wins
(j)Obligee or support agency may not be assessed costs unless local law so provides
(k)Attorneys fees may be taxed as costs, and shall be ordered if hearing was
requested primarily for delay
(l)Limited immunity for petitioner from service of process in other matters (custody
and visitation) as the result of participation in UIFSA proceeding
(m)Child support calculations must be included in order
(n)Special Substantive Provision - Payment of support cannot be conditioned upon
compliance with visitation
(4)Simultaneous Proceedings
(a)The child’s home state has priority for child support claims under UIFSA.
(b)Home state is the state in which the child has lived with a parent or person acting
as parent for at least six months immediately preceding the filing of the support
proceeding in that state.
(c)Even if that state is not the state in which the 1st action was filed, it will still have
priority if motion to dismiss is filed before responsive pleading is due in first
action, and that challenge to the jurisdiction of the 1st court is timely made in the
1st court.
(d)Otherwise, the state in which the fist filing was made has priority.
(e)Simultaneous proceedings rule is subject to modification rules (and thus rarely
applicable in modification proceedings).
(f)First filing controls in simultaneous alimony actions.
(5)Interstate Enforcement of Support Orders
(a)Registration of order and use of enforcement methods of responding state
i) Obligor must be given notice when support order is registered.
ii)Obligor has 20 days to request hearing to contest validity of order or
enforcement.
iii)Failure to contest confirms order as a matter of law.
(1)Contesting party has burden. Only defenses are:
(a)issuing tribunal lacked PJx
(b)order obtained by fraud
(c)order has been vacated, suspended, modified, or stayed
(d)defense exists to enforcement remedy
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(e)full or partial payment made
(f)statute of limitations precludes enforcement
(g)this is not the controlling order
(h)issuing tribunal had no SMJx
(b)Send income assignment order directly to obligor’s employer in another state
for direct enforcement without registration
i) Law of employee’s principle place of employment determines employer’s fee,
frequency of withholding, maximum amount to be withheld, and priorities
ii)Law or responding state determines penalties for noncompliance and manner
in which employee may contest mistakes of fact
iii)Forward order to responding state’s IV-D agency for administrative
enforcement without registration
(1)If obligor contests administrative enforcement, agency must register
order
(c)Forward order to responding state’s IV-D agency for administrative enforcement
without registration
(6)Interstate Modification of Support Orders
4 Requirements to Modify Child Support order of another state:
i) Modifying state has SMJx under its own laws, PJx and gives proper notice;
ii)Either
(1)individual contestants filed consents on record in issuing court to confer
jurisdiction on the modifying state, or
(2)neither child nor parents reside in the issuing state; and
iii)Order is registered; and
iv)The petitioner must be a nonresident of modifying state unless parties agreed
or both reside in the modifying state.
3.Jurisdiction - Custody and Jurisdiction - Parental Child Snatching
a)History - Subject Matter Jurisdiction
(1)Traditional Approach (prior to 1968)
(a)States would exercise custody jurisdiction based on child’s presence or domicile,
domicile of one parent, or fact that state issued initial decree
(b)Resulted in child-snatching, forum shopping, and many instances of multiple
orders
(2)UCCJA (1968)
(a)Limited bases for exercise of initial SMJx
i) Home State
ii)Significant Connection/Substantial Evidence
iii)Emergency Jurisdiction
iv)Default/Other State Declined
(b)Contained Simultaneous Proceedings Rule - Priority to first action filed
(c)Restricted ability of one state to modify another state’s order
(3)Parental Kidnapping Prevention Act (PKPA)
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(a)Federal full faith and credit statute
(b)Requires each state to
i) recognize
ii)enforce
iii)refrain from modifying (except in limited circumstances)
custody orders entered by other states, if issued consistently with PKPA
guidelines
(c)PKPA guidelines similar to UCCJA, but prioritize home state and defines
emergency jurisdiction more narrowly
i) Does not mandate that a state follow its guidelines when it issues a custody
order
ii)It merely says that initiation orders not issued in conformity with PKPA
guidelines will not be entitled to PKPA protection.
(4) Uniform Child Custody Jurisdiction and Enforcement Act (UUCJEA)
(a)Clarified UCCJA provisions to create more uniformity
(b)Harmonized provisions with PKPA
(c)Created uniform enforcement procedures
(d)Currently 48 states and DC have enacted it, and it is under consideration in the
other 2 states -- Massachusetts and Vermont
(e)UCCJA and UCCJEA are SMJx statutes.
(f)Parties cannot confer jurisdiction by agreement in contravention of these statutes.
b)Personal Jurisdiction over Custody Disputes
(1)UCCJA and UCCJEA drafter view:
If a court had satisfies the Acts’ SMJx provisions and defendant is given notice and an
opportunity to be heard, Due Process does not require that the forum have a traditional
basis for PJx over the defendant (i.e., no need for minimum contacts)
(2)Custody proceedings historically in rem. Do not have to have a traditional basis for PJ
(3)Majority
c)Subject Matter Jurisdiction
Two Step Analysis
(1)Can the court exercise jurisdiction?
(a)Does the court have a basis for jurisdiction?
(b)Is the court precluded from exercising jurisdiction by the
simultaneous proceedings rule?
(c)Is the court precluded from exercising jurisdiction by the
unclean hands rule?
(2)Should the court exercise jurisdiction:
(a)Is the court an inconvenient forum under the UCCJEA?
d)Jurisdiction over Initial Custody Proceedings
(1)Home State
Where child has lived with a parent or person acting as parent for the 6 months
preceding the filing of the custody proceeding
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(a)Temporary absences within the 6 month period (i.e., vacations) do not destroy
home state status
(b)Home state is where the child actually resides. Legal domicile is not the
controlling factor.
(2) Home state basis can be used in two different circumstances:
(a)when the child has lived in the forum state for the 6 months immediately
preceding the filling of the first pleading, (where the child is actually living, not
legal domicile), or
(b)the “extended” home state basis, or “left behind parent” home state basis, which
requires three elements:
i) the forum state has been the child’s home state within 6 months before
the commencement of the proceeding
ii)the child is absent form the state
iii)a parent or person acting as a parent continues to live in the state
(3) Significant Connection/Substantial Evidence
(a)child and parent or person acting as parent must have significant connection to
state
(b)there must be substantial evidence in state concerning child’s care, protection,
training, and personal relationships
(c)cannot be used if another state is the home state
(d)comments and cases further define it as the state with “optimum access” to
information about child and family
(4) Other States Declined or Default
(a)If every state that has Home State or Significant Connection jurisdiction has
declined in favor of forum state, 201(3), or if there is no Home State, extended
home state, Significant Connection jurisdiction or 201(3) deferral, the forum state
may exercise default jurisdiction.
(5) Temporary Emergency Jurisdiction
(a)Child must be present in the state
(b)Basis is abandonment or need of protection due to abuse or mistreatment of child,
parent, or sibling or threats of same - used for extraordinary circumstances
(c)Normally a basis for temporary jurisdiction only
(d)Temporary Emergency Jurisdiction Order can become permanent order if:
i) no previous custody determination
ii)no proceeding commenced in another state with Home State or Significant
Connection basis until child has lived in forum 6 months
iii)Order so provides
(6)Simultaneous Proceedings
(a)First action filed in conformity with UCCJEA has priority.
(b)Home State action will prevail even if Significant Connection evidence action
was filed first.
(7)Inconvenient Forum
(a)Custody jurisdiction involves a 2 step evaluation:
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i) Can the court exercise jurisdiction?
ii)Should the court exercise jurisdiction?
“Inconvenient Forum Analysis:
(1)A court with jurisdiction may decline in favor of another state, for
reasons listed in 207 or other reasons it feels other state’s court would be a
more appropriate forum.
(2)Declining court will stay proceedings so action can be pursued in favored
forum.
(a)Section 207 - Not an exclusive list
- the need to protect a party or child from domestic violence
- the length of time the child has resided outside the state
- the distance and financial circumstances of the parties
- the agreement of the parties regarding jurisdiction
- the location of the evidence
- which court can act most expeditiously
- which court is most familiar with the facts
(8)Unjustifiable Conduct Exception
(a)Court can’t exercise jurisdiction if jurisdiction resulted from the unjustifiable
conduct of one parent
(b)Exceptions
i) Parties acquiesce
ii)Courts that otherwise has jurisdiction defers to this court
(9)Modification
(a)Exclusive Continuing Jurisdiction
i) Issuing state has exclusive continuing jurisdiction until:
(1)Issuing state determines it no longer has a Significant Connection with
the child and parent or person acting as parent; OR
(2)Issuing state’s or modifying state’s court determine that child, child’s
parents, and anyone acting as a parent no longer resides in issuing state
(b)2 Approaches to Significant Connection at Modification
i) Broader
If a parent continues to reside in the issuing state and maintains contact with
the child, issuing state has significant connection
ii)Narrow
Issuing state loses significant connection when it no longer has optimum
access to information about child and family (maximum instead of minimum)
- Some states find happens as soon another state becomes child’s Home State
(c)Issuing State May Modify its own Order If:
i) It has continuing exclusive jurisdiction, OR
ii)If it loses continuing exclusive jurisdiction, then
(1)it satisfied the requirements for initial jurisdiction at the time the motion
to modify is filed, and
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(2)no other forum has exclusive continuing jurisdiction at the time the
motion to modify is filed.
(a)Even if the issuing court has jurisdiction to modify, however, it may
still decline to exercise jurisdiction under section 207 on the basis of
forum non conveniens.
(d)To Modify the Custody Order of Another State:
i) Issuing court must determine it no longer has continuing, exclusive
jurisdiction (i.e., no Significant Connection); or unless issuing state declines
jurisdiction under 207 in favor of modifying state,
OR
issuing state or modifying state determines that child, parents, and any person
acting as parent do not reside in issuing state;
AND
ii)modifying court must have a basis for jurisdiction
(1)have jurisdiction basis
(2)not be precluded by simultaneous proceedings or unclean hand rule
(3)not find deference to another court appropriate under 207
A State May Modify Another State’s Order When:
Custody
Child Support
I.
A. If issuing state finds it no longer has substantial
connection or defers
OR
B. Issuing or modifying state find everyone moved away
from issuing state
AND
I.
A. Parties file agreement in issuing state conferring
modification jurisdiction on modifying state
OR
B. Everyone moved away from issuing state
AND
II. Modifying state satisfies requirements for initial SMJx
II. Modifying state has jurisdiction (PJx is the principle
issue)
AND
III. If not by consent, petitioner must be nonresident of
modifying state
AND
IV. Order must be registered
(e)PKPA prohibits a state from modifying the order of another state if:
i) the first order was issued in conformity with the PKPA and the law of the
issuing state (its UCCJA or UCCJEA)
ii)issuing state has jurisdiction under its own law to modify at time the motion
to modify is filed, and has not declined, and
iii)a child or contestant continues to reside in the issuing state.
(10)Enforcement
(a)When Another State Must Enforce and Order
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i) Order entered in conformity with UCCJEA are entitled to enforcement in
other states.
ii)PKPA requires enforcement of orders entered consistently with its guidelines
(which parallel UCCJEA)
(b)Registration
i) When order is registered, notice is sent to any parent
ii)Recipient of notice has 20 days to request a hearing to challenge.
iii)Bases to Challenge
(1)Issuing court did not have jurisdiction under UCCJEA
(2)Order has been stayed, modified, or vacated pursuant to UCCJEA
(3)Notice (service) was not given in issuing court
(c)If no hearing requested or challenge is unsuccessful, order is confirmed.
i) Order cannot later e challenged with respect to any matter that could have
been asserted at time of registration.
(d)Remedies
i) Petitioner for enforcement (308)
(1)hearing on first judicial day possible
(2)if order confirmed, court will order petitioner take immediate physical
custody of child
(3)if order not registered, same result unless respondent can prove one of
the 3 defenses
ii)Only Exception - Seek Temporary Emergency Order
(1)Court will direct parties back to court with permanent modification
jurisdiction and Temporary Order expires as soon as that court issues an
Order.
(e)UCCJEA Remedies
i) Warrant to take physical custody before hearing
ii)Temporary Order enforcing visitation schedule
(f)State Remedies
- Contempt
- Motion to enforce or application for writ of habeas corpus
- Civil tort for child stealing or interference with custody
- Criminal proceedings
- Motion for enforcement of visitation rights - mediation option
- Visitation registry
- Parenting coordinators
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Jurisdiction for Divorce
I.
SMJx
A. Select proper state court.
1. Federal court has a diversity exception for family law matters.
B. Durational Residency Requirement
1. Varies by state
2. In Oklahoma is SMJx, in some is PJx or statutory.
3. Must be resident for 6 months.
a) Residency is determined the same as domicile
(1) now living and intent to remain
II. PJx
A. Due Process
1. 1 Party must be domiciled in the state
B. Statutory
1. State Long-Arm Statute, in Oklahoma
a) Exercise jurisdiction to the full extent of due process
III. Venue
A. Varies by state, in Oklahoma venue is proper where:
(1) petitioner resided in county 30 days preceding
(2) or county where respondent resides
(a) If both file in proper county, first that filed wins.
(b) Legal Separation - Venue proper in county where petitioner or respondent reside.
IV. Transfer of Venue
A. Transfer upon application permitted if venue will be
proper and applicant resides there if
(1) opponent resides in another state, or has left state for over 6 months; OR
(2) original county is inconvenient forum under UCCJEA § 207
(a)
applies to interstate, but adopts factors such as distance, where the evidence is
Jurisdiction for Financial Relief
I.
SMJx
1. Select correct state court
2. Alimony
a) Initial - Simultaneous Proceedings Rule
(1) If you have two simultaneous proceedings and neither one has gotten to
judgment, then you have UIFSA § 204
(a)
Two proceeding seeking alimony then the first filed has SMJx
b) Modification
(1) If there s a proceeding to modify an earlier alimony order, UIFSA § 205
says only the court that issued the alimony order has SMJx to modify it.
3. Child Support
a) Initial - Simultaneous proceedings rule
(1) Deference to the child’s home state
(a) Where the child resided for the 6 months preceding the action
(b) If hasn’t lived anywhere for the 6 months, then no home state and first filing controls
b) Modifying
(1) Federal full faith and credit for child support orders act.
(a)
II. PJx
If a state court has SMJx and PJx, issued the order, will have continuing jurisdiction if
one of the kids or the parents still reside in the state and the parent’s have not agreed to
transfer to tissue to another state. For new state, issuing state had to have lost SMJx.
1. Due Process
(1) Defendant must be:
(a)
(b)
(c)
(d)
Served in forum
Domiciled in forum
Consents to forum
Minimum contacts with forum
2. Statutory
a) Alimony and Child Support
(1) UIFSA § 201 Long-Arm Statute allowing state courts to exercise
jurisdiction to the full extent of due process.
3. Property
(1) Military Pension
(a)
Court can exercise PJx over D only if military spouse is resident of forum state because
of military or if domiciled in forum state or if consented
(b) Where they vote, own property, pay state property taxes, etc.
(2) Local Action Rule (some SMJx some Venue)
(a)
If parties own land outside of the forum state, then the forum state cannot award title,
but can order transfer of title or split and hold in contempt.
(b) The state which has the land will recognize and enforce the order.
Initial Child Custody/Visitation
I.
SMJx (Uniform Child Custody Jurisdiction and Enforcement Act)
A. Can the court exercise jurisdiction?
a) Does the court have a basis for jurisdiction?
(1) Home state basis?
(a) Child lives there 6 months immediately preceding filing.
(b) Temporary absences do not destroy the home state.
(c) It is where the child resides, not the legal domicile.
(2) Extended home state basis or left behind parent basis?
(a) State has been the child’s home state within the last 6 months.
(b) Child is absent from the home state but the parent continues to live there.
(3) Significant connection/substantial basis?
i)
Optimum access to info about the child? Personal relationships? Cannot be forum
state if there is a home state. Home state trumps.
(4) Default Jurisdiction?
(a)
If all (home state, sig. con.) have denied Jx in favor of forum, or there are none, forum
state may exercise default Jx.
(5) Temporary Emergency Jurisdiction?
(a)
Only temporary jurisdiction in extraordinary circumstances in which child/parent
subject/threatened serious abuse or harm and is present in the state.
(b) TO can become permanent if: no previous custody determination, no proceeding
commenced in another state, or order so provides.
b) Is the court precluded from exercising jurisdiction by the
simultaneous proceeding rule?
(a)
The first state to file consistent with UCCJEA wins and home state trumps significant
connection state even if significant filed first.
c) Does the Unclean Hands Doctrine preclude jurisdiction?
(a) The court must deny Jx if it got Jx from unjustifiable conduct of parent.
(b) Exception: parties acquiesce, court otherwise with Jx deferred to this Court.
B. Should the court exercise jurisdiction: Is the court an
inconvenient forum under the UCCJEA?
(1) A court with Jx may decline in favor of another state, § 207 or other reasons
C. PJx
(a)
domestic violence, time outside state, distance, finances, agreement, familiarity
1. Majority
(1) Custody proceedings are historically in rem and do not have to have a
traditional basis for PJx.
2. UCCJEA Drafter View
(1) If a court satisfies SMJx provisions, D is given notice, and an opportunity to
be hears, Due Process does not require the to have a traditional basis for PJx
D. Venue
(1) Venue the same as Divorce and Financial Relief.
Modify Child Custody/Visitation
A. SMJx
1. Exclusive Continuing Jurisdiction
(1) Issuing court must determine it no longer has continuing, exclusive
jurisdiction (i.e. no significant connection);
(2) OR unless issuing state declines jurisdiction under § 207 in favor of
modifying state
(3) OR issuing state or modifying state determines that child, or parents do not
reside in issuing state
(4) AND modifying court must have a basis for jurisdiction
(a) have jurisdictional basis
(b) not be precluded by simultaneous proceedings or unclean hands rule
(c) not find deference to another court appropriate under § 207
(5) Only issuing court can determine it not long has a significant connection
determined by common law of state:
(a)
Bodenheimer (Broad) - If a parent continues to reside in the issuing state and maintains
contact with the child, issuing state has significant connection.
(b) Ratiner (Narrow) - Issuing state loses significant connection when it no longer has
optimum access to information about child and family. 6 months after child leaves or
as soon another state becomes the child’s home state.
2. Issuing state may modify its own order if:
(1) It has continuing jurisdiction OR it loses it then:
(2) it satisfied the requirements for initial jurisdiction at the time the motion to
modify is filed, and
(3) no other forum has exclusive continuing jurisdiction at the time the motion
to modify is filed. (Issuing court may still decline as inconvenient forum.)
B. PJx
1. Majority
(1) Custody proceedings are historically in rem and do not have to have a
traditional basis for PJx.
2. UCCJEA Drafter View
(1) If a court satisfies SMJx provisions, D is given notice, and an opportunity to
be hears, Due Process does not require the to have a traditional basis for PJx
C. Venue
(1) Venue the same as Divorce and Financial Relief.