Uploaded by lexy.tellez

Fam Law Outline

A. Constitutional Law Refresher
a. REMEMBER: Substantive DP  Liberty  Right to Privacy  Right to marry,
have children, etc.
b. Fourteenth Amendment
i. All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside.
ii. No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States;
iii. Nor shall any state deprive any person of life, liberty, or property, without due
process of law;
c. First Amendment
i. Congress shall make no law respecting an establishment of religion or prohibiting
the free exercise thereof, or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
d. Three levels of judicial scrutiny:
i. Strict Scrutiny
1. Fundamental right at state/suspect classification in EPC
a. Fundamental right – protected by the constitution
i. Right to vote
ii. Substantive DP protections – life, liberty, property
1. Right to marriage
2. Right to procreate
b. State must have a compelling interest to restrict the right or make
the classification AND the restriction must be narrowly
tailored/least restrictive means to satisfy the compelling state
c. Restriction is likely invalidated as unconstitutional – gov loses
ii. Intermediate Scrutiny
1. Used when
a. An EPC case involves
i. Nonmarital children
ii. Gender classification
b. Important right at stake
2. State must have an important/substantial interest
3. The law must be substantially related to the important or substantial state
4. Restriction often invalidated – gov loses
iii. Rational Basis
1. Any right or interest at stake
2. State must have a legitimate reason to restrict the right
3. Law or restriction must have some rational relationship to this legitimate
interest or goal
4. Restriction likely validated – gov typically wins
B. Defining Family
a. Introduction
i. 1960s Family Law Revolution
1. Period of time when American culture began its rebellion against rigid
marriage and divorce laws.
2. Family redefined – Nontraditional Families
a. Traditional marriage no longer necessarily symbolizes a “family”
b. Family may include:
i. Civil sibling partnerships
ii. Unmarried couples
iii. Multiples and polygamy
1. Polygamy – (1) marriage to more than one person,
regardless of sex and/or (2) one man with multiple wives
2. Polygyny – one woman with multiple husbands
a. Does not always involve sexual
3. Terms:
a. Primary/secondary relationships
b. Intimate network – several ongoing
secondary relationships
c. Polyfidelity – type of commitment among
the parties
d. Poly triad – 3 sexual partners – all may be
secondary or primary or two primary with
one secondary
i. Can be open or closed
ii. V – 3 people with one at the
pivot point. Arm partners are not
commonly close to each other as
the pivot point
iii. Triangle – 3 people all involved
with each other.
ii. Overarching Themes
1. Family formation
2. Intrafamilial relations – how do children/parents/etc relate?
3. Individuals v. State and Intervention
4. Dissolution of Family (transitions)
iii. Trends in family law
1. Movement from public to private ordering
a. Adultery v. Fornication
2. Expanding role of federal government and constitutional law
3. Commitment to equality – NEW
4. Transnational issues – not covered in this class
5. Procedural innovations – arbitration, mediation, negotiation
iv. Formal v. Functional Distinctions
1. Formal:
a. Blood (consanguinity)
b. Marriage
c. Adoption
2. Functional:
a. Emotional
b. Physical
i. Live together
ii. Cook together
iii. Share a bank account
3. Methodology
a. Rules – mom always gets custody of the child (old rule)
i. When we have formal distinctions, rules will apply
1. Provides for predictability and less judicial discretion
b. Standards – best interest of the child
i. When we have functional distinctions, standards will apply
1. Judge decides who is best qualified to care for the child.
2. Less predictable and greater judicial discretion
v. Realism v. Formalism
1. Formalism – judges apply neutral legal principles to facts
a. Principles and rules are separate from political and social influences
b. Textualism
2. Realism – judges interpret guidance creatively to advance public policy and
a. Judges make law for social good
i. Judges are human
b. Typically involves standards (such as best interest of the child)
vi. Census Definition of Family
1. A group of two or more people (one of whom is the householder)
related by birth, marriage, or adoption and residing together
a. Issue – not all families live together
vii. Decline in the Nuclear Family
1. More people are beginning to live alone
a. Is isolation stressful?
i. It definitely can be
2. Familial structures that are not nuclear families:
a. Nunnery
b. Fraternity
c. Firehouse
d. Retirement home
3. Four Social Changes in which individuals flourish
a. Rising status of women
b. Communications revolution
c. Mass urbanization
d. Longevity revolution
b. Nontraditional Families
i. Polyamory
1. Many loves – relationships where an adult loves more than one other adult
2. Pros and Cons
a. Unwinding – all must be decided in advance
i. Polys support honesty
ii. Should discuss child custody, control of assets, and potential
b. Division of labor
i. Extra support/friendship
ii. Extra childcare
c. Communication
i. Jealousy
ii. Compersion – pleasure in someone else’s pleasure
1. Ex – parent enjoying child’s pleasure
iii. Health and safety
ii. Cohabitation
1. Increase in cohabitation over the last decade
a. Nearly doubled since 1990
2. Problems
a. Death – because the couple may only be lovers, the property will not
go to the non-marital partner upon the death of a partner
b. Separation – divorce law does not apply
i. Difficulties in determining how to divide property
iii. Marriage Theory – Dissolution
1. When courts grant divorces, they will take an expectation, reliance, or
restitution theory of dissolution
2. Contract Theory – expectation recovery
a. Marriage of 10 years – annual shared income = $100,000
b. Reentry into the work force as a nurse – income of $30,000
c. Expectation loss = $70,000/year
3. Tort Theory – reliance
a. Returns the party to their starting position
4. Equitable Theory – restitution
a. Recompensate for the amount the other party was unjustly enriched
i. Depends on what the court thinks is fair
b. Potential problems
i. Contingent upon interpretation by the court
ii. Could produce a range of results
iv. Marvin v. Marvin
1. Facts – P and D lived together for 7 years without marrying. All property
was in D’s name. Upon dissolution of the marriage, P (wife) sued to
enforce the oral agreement (to pool their efforts and hold themselves as
husband and wife).
2. Issue – may one partner of an unmarried couple sue the other for a
distribution of property obtained during the couple’s relationship?
3. Holding/Reasoning:
a. Nonmarital couples are not entitled to division of community
property, but courts will instead enforce express agreements between
the parties so long as they are not resting on an unlawful meretricious
consideration (sex).
i. Courts should look at the consideration underlying the
agreement to determine enforcement.
b. No against public policy – no reason the enforcement of the contract
will impair any right of a lawful right
c. In the absence of an express agreement/contract, courts may inquire
into the conduct of the parties to determine whether there is an
understanding between the parties (implied contract).
4. Notes:
a. If all agreements fail because of sex, there will be a huge problem
i. Agreement must be BASED on sex to be unenforceable
b. Why do we want to protect marriage?
i. We want people to register with the law
1. Employment benefits
2. Tax – most valuable
3. Medical benefits
a. All involve money
ii. We promote marriage for logistical purposes
iii. Society’s way of shaping and promoting acceptable relationships
v. Blumenthal v. Brewer
1. Facts – P and D had a long-term relationship. After the relationship ended,
P sought partition of the house or for the house to be sold and to receive
half of the proceeds.
2. Issue – whether unmarried domestic partners can enforce mutual property
rights w/o an economic justification independent from the party’s
3. Holding/Reasoning:
a. IL prohibits common law marriage. Given the state’s prohibition,
there is no basis for the court to afford marital-like protections to
unmarried domestic partners.
b. Common law restitution is unavailable to D. Mutual property rights
cannot be viewed under contract law because the marital-like
relationship is more intimate.
4. Notes:
a. No economic reason for common law claims
i. Court doesn’t want unmarried couples to claim economic
1. Undermines marriage.
vi. States Interest in Regulating Marriage
1. One interest in regulating marriage is money
2. Concerns about indigent people – whether someone has support or not
3. Marriage is used as a private system that the state can focus on to avoid
people from becoming dependent on the state welfare system.
c. Extended Family and Groups
i. Moore v. City of East Cleveland – STRICT SCRUTINY
1. Facts – Moore (grandma) lives with her son and her two grandsons
(cousins). John Jr. moved in with grandma after his mother died. Moore
received a notice of violation from the city, stating John was an illegal
occupant. The trial court and the appellate court upheld the conviction.
SCOTUS reversed.
a. The ordinance limited occupancy of a dwelling to members of a
single family.
b. The city’s goal was to regulate traffic, parking, and overcrowding
2. Issue – did the ordinance violate the DPC of the 14th Amendment?
3. Holding/Reasoning: Yes.
a. The government had legitimate goals, but the ordinance served them
marginally at best
i. Ex- husband and wife with multiple children, each with their
own vehicle is fine, but a brother and sister who use public
transportation is not.
b. The tradition of extended families sharing a household is worthy of
constitutional recognition
i. It is through family that we instill and pass down many
cherished values, moral, and culture.
ii. It is common for close relatives to draw together, whether it be
by choice, necessity, or a sense of family responsibility.
c. An ordinance that intrudes into family life by restricting which
relatives can live together violates due process.
i. Such intrusive ordinances must be narrowly tailored to
achieve a compelling government interest
4. Brennan and Marshall Concurrence
a. The ordinance targeted black families as extended families living
together is popular amongst black families.
i. Prohibiting extended families would intrude into the rights of
the black community.
ii. Prominence of other nuclear families among ethnic and racial
minority groups surely demonstrates the extended family
pattern remains a vital tenant of our society.
5. Stevens Concurrence – saw this as a taking of property without DP and
just compensation.
6. Stewart and Rehnquist Dissent
a. Moore’s claim is not as highly valued as other liberty interests as it
doesn’t restrict her right to bear children or her right to nurture and
rear her children in a manner of her choosing.
b. The court runs the risk of overly extending the concept of
fundamental rights.
ii. Village of Belle Terre v. Boraas – RATIONALITY REVIEW
1. Facts – village had an ordinance which narrowly defined family. The land
was restricted to one-family dwellings. Six college students moved into a
home together. The city notified the students that they were violating the
a. The ordinance defines family as one or more persons related by
blood, adoption, or marriage, or a number of persons not exceeding
two living and cooking together as a single housekeeping unit though
not related by blood, adoption, or marriage.
i. Both functional and formal definition of family
b. The village claimed the ordinance reduced noise, traffic, and street
parking, and permits children to play in open spaces.
2. Issue – whether the six students constitute a family & whether the zoning
violated the privileges and immunities clause of the 14th Amendment and
was therefore unconstitutional.
3. Holding/Reasoning:
a. The ordinance does not violate the students’ equal protection rights.
The government’s police powers are not confined to elimination of
filth, stench, and unhealthy places. It extends to enact restrictions
designed to further positive goals such as fostering an environment
conducive to families and childrearing.
b. Rejected arbitrary argument because that sort of line-drawing is a
legislative role, not a judicial role.
c. Court uses rational basis review because there weren’t any
substantive due process rights nor suspect classifications involved.
i. Youth, age, and poverty are not afforded heightened scrutiny
4. Marshall Dissent
a. Opposite of Moore as he said this would burden unmarried
i. Can have extended family, but not more than two unrelated
b. The means to achieve the villages purposes were overinclusive and
i. Under – no restriction on the number of people who may live
together so long as they are related by marriage or by blood.
ii. Over – the law prevents more than two unrelated persons to
live together, even if among them they only had one income and
no vehicles.
c. Wouldn’t ask the village to abandon its goal but continue to pursue it
by means more carefully drawn.
iii. Moore v. Belle Terre
1. Moore is distinguished from Belle Terre.
a. In Moore, the family members are related by blood, rather than a
group of unrelated individuals.
iv. Penobscot Area Housing v. City of Brewer
1. Facts – Penobscot wanted to open a group home for six mentally
challenged individuals. The lot was zoned for single family use. The
mentally disabled individuals would be supervised by two full time
employees who would live in the house on a rotating basis.
2. Issue – does the group home meet the definition of a family for residential
zoning purposes?
a. REAL issue – neighbors didn’t want the group home because it
would drive their property values down.
3. Holding/Reasoning – no.
a. A traditional family like structure includes one or more resident
authority figure responsible for maintaining housekeeping, activities,
and other residents’ duties. Since the staff members are on a rotating
basis, there isn’t a central figure of authority residing on the premises.
b. No quality of cohesiveness and permanence between the residents
greater than that of a hotel or a fraternity house because the residents
were only expected to be there for approximately one to one and a
half years.
i. They would ultimately be transferred to foster homes.
c. Extensive outside aid in management and operation of a home
detracts from the family nature of the home.
d. If the problem of locating group homes in the state is pervasive,
legislative action would be more appropriate.
v. Borough of Glassboro v. Vallorosi
1. Facts – ten college students planned to live together throughout college,
but Glassboro previously passed a zoning ordinance that limited occupancy
in residential districts to families only. The students cooked and cleaned
together and had a common checking account for household expenses.
2. Issue – whether the students’ occupancy constituted a single housekeeping
3. Holding/Reasoning: Yes. The student’s arrangement showed stability,
permanency, and can be described as the functional equivalent of a family.
4. Distinction between Vallorosi and Penobscot – Penobscot didn’t have a
role of authority there at all times.
vi. Oneida Colony
1. Social Organization
a. Lived together under one roof to encourage a feeling of togetherness.
b. 3 basic principles:
i. Economic Communism
1. Equal ownership of all property  eliminated
2. Jobs were rotated from year to year to eliminate feelings
of discrimination
3. If people did their work well, they presumably had equal
status, no matter their position
ii. Mutual Criticism
1. Method of solving problems
2. Subject sits in silence while each member of the
committee assessed his good points as well as his bad
a. In serious cases, the committee would be
expanded to include the entire
3. As the colony grew, the technique was often used for
those who volunteered for purposes of selfimprovement
iii. Complex Marriage
1. Women were treated equally
2. Man could not have sexual intercourse with a woman
without her consent
3. Inappropriate behavior, suggestive language, and overt
displays of sexuality were not tolerated.
2. Role of Women
a. Every committee had a woman on it
b. Played a bigger role compared to the outside world
c. Women had rights and were treated equally
3. Eugenics
Only those with superior physical and mental abilities were permitted
to have children
b. At approximately 15 months, children were transferred to a special
section of the house to spend most of their time in age-graded
vii. Drobac/Page – Domestic Partnerships
1. Domestic Partnership – an association of adult persons to form a single
economically and emotionally supportive family
a. No intimacy requirement
b. No residence requirement
c. Distinguished from ALI discussions – in ALI, you must live with
someone and presume that you are sexual with that person
2. Family law is controlled by the state
3. Goal – demonstrate love and commitment; securing the parentage and
welfare of children; create an efficient domestic economic enterprise; obtain
legal rights and benefits based on legal status
4. Failures of the Current System
a. Unilateral divorce
i. Insecurity-failure to invest
1. Can lead to divorce
ii. Economic duress – especially children
1. Everyone suffers economically in a divorce
iii. Loss of legal benefits based on marital status
b. Nonmarital children – 39% born to unwed mothers
c. Gender inequality
d. Discrimination against same sex and other families
5. Enduring Partnership
a. Similar to marriage – it continues until one partner dies
i. May dissolve earlier if one pursues that option (true for all
b. Intended for couples who DO NOT want to have children
c. Closely resembles state supported marriage upon dissolution –
minimum continuing obligations
i. Everyone has their own money source – no one needs spousal
d. Analogous to at-will business partnership – can get in and out easily
6. Provisional Partnership
a. Continues for one year, renewable by the partners
i. Starter marriage
b. Replaces trial marriages, informal cohabitation, and handfasting’s
i. Minimal obligations upon dissolution
7. Filial Partnership
a. Intended for couples who WANT children
b. Continues until the youngest child is emancipated
i. Then it transitions to an enduring or caregiving partnership, or
it may terminate.
c. Heavy support obligations upon dissolution – possibility for partner
support obligations
i. If one partner provides primary childcare, the other might have
to support them until the last child is emancipated (child
support AND alimony only if the other parent is a stay-at-home
parent) OR 1 year for every two years of partnership, whichever
is longer
1. IN does not allow for alimony, so typically the stay-athome parent has to get a job because child support isn’t
8. Caregiving Partnership
a. Intended for adults who agree in advance to divide income earning
and domestic caregiving unequally
i. Adult child goes to work and aging parent stays home
ii. Siblings or widows, etc
b. Children may be involved
c. Continues for a specified time or the occurrence of an event
i. Adult child w/parent  partnership to take care of parent
would end when the parent dies
9. Caregiving v. Filial
a. Caregiver – earnings will be different
i. One adult will not have earning capacity
b. Filial – income is shared
C. Regulation of Families Through Marriage
a. Preparing to Marry
i. Maynard v. Hill – sees marriage as a status
1. Marriage is more than a mere contract, it is a special relationship
a. Foundation of the family and society without which there would be
neither civilization nor progress
2. Background – husband (M) abandoned his wife and children to move to
OR to obtain land. Legislation dissolved the marriage and Maynard
remarried. Half of Maynard’s land was forfeited because neither wife
satisfied the four-year term. His first wife’s children sued Hill for
ownership. SCOTUS held that the legislative divorce was valid.
a. Legislative divorces were common in England.
ii. Bix, Private Ordering and Family Law
1. General Justifications
a. Individuals know what is best for them.
b. Efficient because individuals are best placed to know their own
i. Increases overall wealth
2. Justifications
a. Good for public policy
b. Third-party effects
i. Unconventional family forms are unstable and end up harming
ii. Broken down families often cause negative effects upon society
3. Bounded Rationality
Individuals are generally in the best position to determine what is in
their best interest.
b. Pre-marital agreements are considered a stronger case of bounded
i. Most people are poor at thinking about future events, especially
if it involves contingencies contrary to optimistic assumptions.
4. Exploitation
a. Surrogacy
iii. Bargaining in the Shadow of the Law
1. Majority of divorcing couples resolve issues and distribution without going
to court.
2. In families with minor children, judges are said to have responsibility to
determine who should have custody and on what conditions.
a. If there is no dispute, judges/registrars are quite willing to approve a
private agreement in order to conserve resources for disputed cases
3. Four distributional questions:
a. How should property/existing wealth be distributed?
b. What ongoing claims for future earnings? (alimony)
c. What ongoing claims for child support?
d. How to divide custody and child responsibility?
4. Concerns of divorce bargaining: money and custody
a. Parent may trade custodial rights for money
i. Courts will not permit custodial parent to cut off visitation
because of failure to pay support and vice versa
1. No legal validity, but often faster, cheaper, and more
effective than court enforcement.
b. Strategic behavior – parties may threaten, promise, or bluff
i. may intentionally exaggerate to get what they want
5. Reasons why divorce cases are litigated:
a. Spite
b. Distaste for negotiation
c. Calling the bluff – breakdown in negotiations
d. Uncertainty and no risk preferred
e. No middle ground
6. Even when the outcome in court is certain, litigation is still possible
iv. Married Women’s Property Acts
1. Gave married women the right to:
a. Own and control their own property
b. Engage in their own business
c. The right to sue and be sued in contract and tort in their own names
d. The right to be responsible for their own debts and crimes
e. Freeing of women’s property from liability for the debts of husbands.
v. Premarital Controversies
1. Engagement rings
a. Down payment – earnest money for the marriage
b. Dowry
c. Symbol of wealth and insurance policy
d. Heiman v. Parrish – if she breaks off the marriage, she must return
the ring.
i. Engagement ring is a conditional gift
ii. Does not matter how the breakup occurred, must be returned
vi. Premarital Agreements – IC 31-11-3-8
1. Enforceability of the Agreement
a. A premarital agreement is not enforceable if a party against whom
enforcement is sought proves that:
i. The party did not execute the agreement voluntarily
ii. The agreement was unconscionable when it was executed
(when it was signed)
b. If:
i. A provision of a premarital agreement modifies or eliminates
spousal maintenance; and
ii. The modification or elimination causes one party to the
agreement extreme hardship under circumstances not
reasonably foreseeable at the time of the execution of the
iii. A court, notwithstanding the terms of the agreement, may
require the other party to provide spousal maintenance to the
extent necessary to avoid extreme hardship (meant to protect
the party AND the state – the spouse that left the other in this
position is a better person to take care of the left spouse rather
than the taxpayers)
iv. A court shall decide an issue of unconscionability of a
premarital agreement as a matter of law.
vii. Edwardson v. Edwardson
1. Facts – the parties were previously married to other people. They entered
into a premarital agreement in case of divorce. Wife’s alimony was to
terminate upon her remarrying. Husband claims the agreement is invalid.
a. Conditions for enforcement of prenuptial agreement:
i. Full disclosure
1. No material omissions
2. No misrepresentation
ii. Must not be unconscionable at the time of enforcement
1. UPAA and IN look at the unconscionability at the time
of execution
2. If it is unconscionable, the court may modify the
agreement and try to give effect to the agreement
b. The agreement may only apply to disposition of property and
i. No enforcement of provisions regarding child custody and
support – BIC
1. However, if the agreement allows more payment than
the state requires, the court may go with the prenuptial
agreement, but they do not have to.
2. The state ALWAYS gets to intervene in child interests
 Best interest of the child standard
ii. Uniform Marital Property Act (UMPA) specifically precludes
agreements regarding child support.
c. Nonmarital property retains its character unless the parties agree
otherwise (property that was earned or obtained before marriage, or
sometimes property a husband or wife received from a will)
viii. Simeone v. Simeone
1. Facts – Appellant was a 23 y/o nurse and Appellee was a 39 y/o
neurosurgeon at the time of their wedding. Appellee had assets worth
approximately 300k. On the eve of their wedding, Appellee’s attorney
presented a prenuptial to be signed, which Appellant signed. The agreement
limited Appellant to support payments of $200/week, subject to max
payment of $25,000. Appellant is seeking alimony and claims the agreement
was unreasonable and was executed under duress.
2. Holding/Reasoning:
a. Geyer was founded on an assumption of unequal bargaining power
and a need to protect women, which is no longer the case. Now,
prenups should be treated the same as other contracts.
b. By questioning reasonableness, we are undermining the validity of the
c. The terms of the present agreement must be regarded as binding
because ignorance is no excuse
d. Though they are departing from the Geyer reasonableness approach,
they continue to require the longstanding principle that a full and fair
disclosure of the financial positions of the parties is necessary.
3. Notes to review of prenuptial contract
a. Procedural unconscionability – results from inequalities between
the parties as to age, intelligence, and relative bargaining power. It
discloses that both parties did not freely consent to all terms
b. Undue influence – confidential relationships
c. Three types of prenups people seek:
i. Divorced people trying again
ii. People with significant wealth that they want to protect from a
iii. People with family money and related pressures.
d. Most problems arise where there are major wealth and age gaps.
b. Traditional Restrictions on Marriage – Preparing to Marry
i. Loving v. Virginia – Racial Discrimination
1. Facts - Jeter (black) and Loving (white) were married in DC and then
moved back to VA. There, a grand jury indicted them for violating VA’s
ban on interracial marriages. Ds pled guilty and were sentenced to one year
in jail. The Trial judge suspended the sentence for 25 years on the condition
that the Lovings leave VA and not return for 25 years. The Lovings moved
to DC and moved to vacate the judgement as violating the 14th
2. Issue – Does the VA law that prevents marriages between people solely on
the basis of racial classifications violate the Equal Protection and Due
Process Clauses of the 14th Amendment?
3. Holding/Reasoning – Yes. The anti-interracial law violates the 14th
Amendment and is unconstitutional. The State Supreme Court of Appeals
concluded that the legitimate purposes of the law were to “preserve the
racial integrity of its citizens,” to prevent the “corruption of blood” and a
“mongrel breed of citizens.” The mere equal application of a statute
containing racial classifications is not enough to avoid the 14th Amendment
scrutiny. There is no question that the law rests solely upon distinctions
drawn according to race. Over the years, the court has consistently
repudiated distinctions between citizens solely because of their ancestry as
being odious to a free people whose institutions are founded upon the
doctrine of equality.
a. Strict scrutiny must be used in such facially discriminatory laws
regarding rave even though it applies equally to blacks and whites.
There is no overriding purpose independent of invidious racial
discrimination which justifies this classification.
4. Notes:
a. The right to marry is a fundamental right.
b. The freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free
men. Marriage is one of the ‘ basic civil rights of man,’ fundamental
to our existence and survival.
c. The state has a natural, direct, and vital interest in maximizing the
number of successful marriages which lead to stable homes and
families and minimizing those which do not.
d. EPC – 14th Amendment strict scrutiny
i. Prejudice blinded the court
ii. Rejection of rationality review used in regulation of marriage
e. 14th Substantive Due Process  liberty  fundamental right at stake
i. Level of scrutiny?
1. No legitimate purpose = rational basis
ii. Zablocki v. Redhail
1. Facts – Redhail fathered a child out of wedlock while in high school. A WI
statute provides that persons who owe outstanding child support or whose
child is on welfare may not marry without a court granting permission.
Redhail’s marriage application was denied because his child was receiving
government benefits and he owed an excess of $3,700 in child support.
2. Holding/Reasoning: The statute violates the EPC
a. Marriage is of fundamental importance and is the most important
relation in life.
b. Some people will be prevented from getting married indefinitely
because they lack the financial means to meet their support
obligations, or they cannot prove their children will not become
wards of the state
i. Even those who can meet the requirements suffer a serious
intrusion into their freedom of choice.
c. The state has a legitimate and substantial interest, but the means
selected are unconstitutional. There are numerous, less
discriminatory means to compel people to pay support.
d. Preventing marriage may only result in children being born out of
Stewart Concurrence – sees this only as a substantive DP issue
a. Statute violates the DPC of the 14th Amendment
b. State has legitimate concerns, but the concerns do not justify the
deprivation of the benefits of marriage
c. Some people cannot afford to meet the statute’s financial
i. To deny people permission to marry penalizes them for failing
to do what they cannot do.
Powell Concurrence – recommends intermediate scrutiny
a. Majority opinion is too broad – not all restrictions of marriage should
be held as unconstitutional.
b. Statute doesn’t pass under the DPC or EPC
i. It fails to make a provision for those without the means to
comply with child support
Stevens Concurrence – some regulation of marriage is reasonable
a. Discrimination is unprecedented and inconsistent with tradition
i. Within the calls of parents who have fulfilled their court
ordered obligations, the rich may marry and the poor may not.
b. WI legislature assumes that (a) only fathers would be affected by the
legislation and (b) that they would never marry employed women.
i. Statute prevents impoverished parents from marrying even
though their intended spouses are economically independent.
Rehnquist Dissent
a. Marriage is not a fundamental right – it is like a religious institution
b. Thought it needed to pass the rational basis test
i. Which it did because the state has a strong interest in securing
as much support as possible due to the limited funds available
for needy children.
c. Statute was “sufficiently rational” to satisfy 14th Amendment
a. EPC
i. Discrimination on the basis of currency with child support,
which translates into a classification on the basis of
socioeconomic status
ii. The court doesn’t want poor people getting remarried and
having more children that they can’t afford.
iii. Rational basis – poverty is not a suspect classification
b. Substantive Due Process
i. Right to marry – fundamental right. The statute discriminates
against the poor and is over and under inclusive.
1. Statutory classification must be “supported by
sufficiently important state interests and be closely
tailored to effectuate only those interests”
ii. Heightened scrutiny used – looks like intermediate, but there is
some ambiguity as to the level of review.
1. Heightened scrutiny usually does not cover poor people;
however, it applies in this case because marriage is a
fundamental right.
iii. Reasonable regulations that do not significantly interfere with
decisions to enter into the marital relationship may legitimately
be imposed – watered down strict scrutiny, otherwise known as
intermediate scrutiny.
iii. Turner v. Safley
1. Facts – MO DOC forbid prison inmates from marrying unless permitted
by the prison superintendent for a “compelling reason.” Prison officials
testified that only a pregnancy or the birth of a legitimate child would be
considered a compelling reason.
2. Holding/Reasoning:
a. Marriage is a fundamental right. Though inmates are subject to
substantial restrictions, they are still guaranteed the constitutional
rights that are not inconsistent with their status as inmates.
i. The restriction is not reasonably related to the articulated
b. Benefits of marriage:
i. Emotional support and public commitment
ii. Spiritual significance
iii. Eventual consummation and family life
iv. Governmental benefits (SS)
v. Property rights
vi. Other less tangible rights – legitimization of children born out
of wedlock
c. Security concerns are reasonable, but there are obvious, easy
alternatives to the regulation that accommodate the right to marry
while imposing a minimal burden on the pursuit of security
d. Female inmates were carefully scrutinized even before the adoption
of the current regulation
i. Only one female approved between 1979-1983
ii. Male inmates during the same period were routinely approved
e. Court uses rational review – they acknowledge that it is a
fundamental right, but judicial efficiency.
i. If you can get rid of a case using rational review, why go
through a strict scrutiny analysis?
ii. Always use the most efficient tool – here, the state loses under
rational review and under strict scrutiny
iv. Obergefell v. Hodges
1. Facts – 14 same-sex couples appealing ban on same-sex marriage
2. Issue – does the 14th Amendment mandate a State to license a marriage
between persons of the same sex? Must a State recognize a same-sex
marriage of a sister State?
3. Holding/Reasoning:
a. Same-sex couples may exercise the right to marry
b. Four principles and traditions that demonstrate reasons marriage is
fundamental under the Constitution apply with equal force to samesex couples
i. Right to personal choice regarding marriage is inherent in the
concept of personal autonomy
ii. SCOTUS’s jurisprudence is that the right to marry is
fundamental because it supports a two-person union unlike
any other in its importance to the committed individuals
iii. Safeguards children and families and thus draws meaning
from related rights of childrearing, procreation, and education
1. Permanency and stability are important to a child’s best
2. Avoids stigma for children where their parents are
considered less than other parents in society
iv. Marriage is a keystone of our social order
1. Maynard v. Hill – marriage is more than a contract; it is a
special relationship.
4. Analysis:
a. History and Tradition
i. Marriage hasn’t always been defined as one man and one
1. There has been plural marriage in history
2. One man and multiple women
ii. Law of coverture was abandoned
iii. Criminal law – Lawrence v. Texas
b. Equal Protection
i. Equal right to marry
ii. Substantive Due Process – Liberty interest
iii. Full Faith and Credit Clause – if there is a fundamental public
policy in IN against gay marriage, they do not have to give the
CA gay marriage Full Faith and Credit.
iv. IC 31-11-1-1: same sex marriage prohibited
1. No longer valid per Obergefell
c. Why is DOMA unusual?
i. Federal government doesn’t usually regulate marriage
1. Family law is state based law
ii. DOMA was Congress’s attempt to leave it to the states
1. Caused problems  SCOTUS stepped in
d. 14th Analysis
i. Individual autonomy – would have been recognized in history
ii. Support of two person commitments – marriage is a
fundamental right
1. Framing – marriage
iii. Safeguards children and families
1. A ton of federal benefits
2. Avoids stigma for children
c. Indiana Restrictions on Entry into Marriage
i. IC 31-11-1-1: Same sex marriages prohibited
1. (b) a marriage between persons of the same gender is void in Indiana even
if the marriage is lawful in the place where it is solemnized.
ii. IC 31-11-12: Marriage between close relatives prohibited; marriages between
cousins; exceptions
1. However, two individuals may marry each other if the individuals are:
a. (1) first cousins; and
b. (2) both are at least 65 years of age
d. Traditional Restrictions – Incest and Age
i. State v. Sharon H.
1. Facts – Appellees were half siblings. Sharon was adopted and Dennis
became a ward of the state. Defendants were arrested for violating two DE
laws that prohibit marriage between brothers and sisters. Defs contend the
statute must be read to end all relationships between adopted children and
natural parents, including blood ties. Sharon also claimed the adoption
records could not be used because the documents were sealed. The trial
court agreed and dismissed the charges.
2. Issue – does a state adoption law that severs legal ties from an adoptee’s
natural parents have any effect on a consanguinity statute prohibiting
marriage between blood relatives in ascending or descending lines?
3. Holding/Reasoning:
a. Historical purpose of the statute was to eliminate genetic inbreeding.
b. The statute clearly prohibits marriages between brother and sister, as
well as other blood relatives
i. No exceptions made for half-blood relatives or blood relatives
adopted by another family
c. No legal mechanism to sever blood ties
ii. Back v. Back
1. Facts – William Back married Mrs. Dirke, who had a daughter from a prior
marriage. Back and Dirke divorced and four years later, he married the
daughter. Dirke and Back did not have children, but he had four children
with the daughter. Mother of the daughter died and decedent and the
daughter lived together as husband and wife until his death in 1906.
2. Issue – whether the marriage was incestuous and void under code §4936,
which within the definition of incest includes a marriage between a man and
his wife’s daughter.
3. Holding/Reasoning:
a. No, the marriage was valid because it occurred after P’s mother
divorced the decedent.
i. Relationship of affinity ends when the marriage that created the
relationship ends.
1. Relationship of affinity – relationship created as a result
of marriage
iii. In re J.M.N.
1. Facts – Father and mother had a 14-year-old daughter. Father had custody
and mother had visitation rights. Father took Jacy to mother for her regular
visitation under the impression she and her mother were going to go on
vacation to Florida. Instead of going to Florida, mother took Jacy and her
boyfriend to TN to be married. Jacy’s mother signed a consent form for the
marriage. The juvenile court then waived the age restriction and authorized
the clerk to issue a marriage license. A few days later, mother told father
Jacy had married and as a result, was emancipated. Father filed a motion to
set aside the order. The juvenile court determine from the evidence that it
was inappropriate for mother to make the decision to allow Jacy to get
married without father’s consent and rendered the marriage void.
2. Issue – was the trial judge justified in setting aside the order allowing the
3. Holding/Reasoning:
a. Yes, there was ample justification for providing relief from the order
i. Father wasn’t notified
ii. Mother had a history of mental illness and of attempts to usurp
father’s authority in decision making matters
b. Setting aside the order made the marriage voidable, not void.
e. Traditional Restrictions – Polygamy
i. Collier v. Fox
1. Facts – Nathan and Vicki Collier were legally married. Nathan was also in a
committed relationship with Christina. The parties agreed to nurture, raise,
and support one another’s children and have done so jointly for several
years. Nathan and Christina attempted to apply for a marriage license, but
the application was denied due to Nathan’s marriage to Vicki. Plaintiffs
challenge the validity of Montana’s anti-polygamy statues.
2. Issues – (1) whether there is standing and (2) whether Montana’s criminal
and civil anti-polygamy statutes are constitutional
3. Holding/Reasoning:
a. (1) Standing
i. Vicki has no injury, therefore no standing
ii. Colliers may meet standing in alleging pre-enforcement
challenges by showing “a realistic danger of sustaining a direct
injury as a result of the statute’s operation or enforcement”
1. Colliers have never faced prosecution for violating either
2. Colliers are unable to show a history of enforcement
iii. Plaintiffs failed to demonstrate injury because they have not
shown a threat of prosecution or a history of enforcement
1. No standing as to criminal statute
2. They do have standing for a civil statute
b. (2) Ripeness
i. Challenge to criminal statute is not ripe  no injury
ii. Challenge to civil statute is ripe  denied a marriage license
c. (3) Constitutional Claims
i. Reynolds – “it is within the legitimate scope of power of every
civil government to determine whether polygamy or monogamy
shall be the law of social life under its dominion”
1. Obergefell did not overrule Reynolds  no
constitutional violation
2. No constitutional right to multiple marriages
ii. In re Steed
1. Facts – removal of over 450 children on the allegations of sexual assault
2. Issue – was this permitted?
3. Holding/Reasoning:
a. No, no evidence of danger to the physical health or safety of the
children. The children had to be returned.
b. Should the government intervene in these cases when they cannot
prove unlawful exploitation of a minor?
i. Potential bias – are we persecuting unpopular religious groups
i. William Blackstone, I Commentaries on the Laws of England
1. Husband and wife are one person in law – coverture
a. The legal existence of the woman is suspended during the marriage
2. Husband bound to provide necessaries and obligated to pay wife’s debts for
a. He is not obligated to pay her debts for anything besides necessaries
b. Wife is not liable for crimes (aside from murder and treason) as she is
under her husband’s coercion.
i. Husband is to answer for her misbehavior
ii. Hargrave v. Duval
1. Facts – Hargrave and Duval lived together and traveled together as
husband and wife, but they never formally married. Duval was killed as a
result of a rock-climbing accident. Duval’s daughters brought suit after
Hargrave was recognized as Duval’s surviving spouse entitling her to inherit
from his estate. The pair lived together for approximately 14 years;
Hargrave was appointed Duval’s health plan beneficiary and was granted
Duval’s POA.
2. Issue – whether Duval and Hargrave validly entered into a common-law
marriage and whether SD recognized the marriage.
3. Holding/Reasoning:
a. CL marriage entered into in another jurisdiction is recognized in SD.
i. Domicile is not required in the state in which the marriage
b. CL marriage occurs upon the happening of three events: (1) a
declaration of intent to marry by the parties, (2) cohabitation, and (3)
holding out of themselves to the community as being husband and
i. Hargrave did not present clear and convincing evidence of the
parties’ intent to marry
1. To meet the OK requirement, the parties’ mutual
agreement or declaration to marry must be more than an
implicit agreement.
ii. Did not satisfy the first element  no CL marriage
iii. IC 31-11-4: Marriage Licenses and Certificates
1. A marriage license is required to get married.
2. Prerequisites:
a. Authority to marry each other under IC 31-11-1
3. County of residence or solemnization – place to obtain license
4. Application; STD acknowledgement; religious acknowledgement
Distribution of info concerning dangerous STDs.
Proof of birth date
License expires in 60 days
Conditions precluding issuance of marriage license:
a. Party has been adjudged to be mentally incompetent unless the clerk
finds that the adjudication is no longer in effect; or
b. Party is under the influence of an alcoholic beverage or a narcotic
D. Family Privacy
a. Contraception and Abortion
i. Griswold v. Connecticut
1. Facts – Appellants were executive/medical directors of Planned
Parenthood. They were arrested for violating a CT statute which prohibited
the use of any drug to prevent contraception and the assistance of another
to commit any offense. Appellants were convicted as accessories for
providing information, instruction, and medical advice to married couples.
2. Holding/Reasoning:
a. Constitution contains an implied right to privacy. Can be seen in:
i. 1st Amendment – state cannot contract the spectrum of
1. Pierce v. Society of Sisters – right to educate one’s
children as one chooses
2. Meyer v. Nebraska – right to study another language in a
private school
ii. 3rd A – not required to house soldiers in time of peace
iii. 4th A – right against illegal search and seizure
iv. 5th A – self-incrimination clause
v. 9th A – enumeration of certain rights shall not be construed to
deny or disparage others retained by the people
b. STRICT SCRUTINY applied because there was a fundamental right
at issue
i. Present case concerns a relationship lying within the zone of
privacy created by several fundamental constitutional guarantees
c. History
i. Why do we have prohibitions on contraceptives?
1. High concentration of Catholics – contraceptives of any
kind are wrong
2. Difficult to separate religious tenants/motivation from
legal reality and law that is passed in family law.
3. Laws were designed to prohibit promiscuous sex
a. For married people – extramarital sex
3. Goldberg Concurrence
a. 9th Amendment Focus:
i. Language and history of the 9th A reveals that the Framers
believed there are additional fundamental rights to be protected
from governmental infringement which exist alongside those
fundamental rights specifically mentioned in the first 8
ii. Eisenstadt v. Baird
1. Facts – Baird was convicted for exhibiting contraceptive articles in the
course of delivering a lecture on contraception to a group of students at
Boston University and for giving a young woman a package of vaginal
foam. The MA statute prohibited giving any drug, medicine, or instrument
for the prevention of contraception, with the exception of married couples.
2. Issue – is there a rational explanation for treating married and unmarried
persons differently?
3. Holding/Reasoning:
a. Rational Basis Review – framed in a way to make it the least
controversial as possible and for judicial efficiency
b. Unlikely the legislature intended to punish unwanted fornication with
unwanted pregnancy
c. If health were the rationale, the statute would be discriminatory and
i. There are already state and federal laws to regulate distribution
of harmful drugs
d. If the statute can’t be upheld as a deterrent or a health measure, it has
no other purpose
i. Declined to answer whether the statue may be sustained as a
prohibition on contraception.
e. Right of privacy – if it means anything, it means it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child
i. Everyone has a constitutional right to use contraceptives – does
not mean the state has to provide access to it.
f. Looks to Griswold:
i. If contraceptives cannot be prohibited for married couples, a
ban on distribution to unmarried persons is equally
ii. Right of privacy is the right of the individual to be free from
unwarranted governmental intrusions.
iii. Roe v. Wade
1. Facts – A TX statute outlawed abortions unless necessary to save the life
of the mother.
2. Issues – Is a woman’s right to an abortion a fundamental right?
3. Holding/Reasoning:
a. The right to choose was given to the doctor – NOT the woman
b. A woman’s right to an abortion is a fundamental right.
c. A state that wishes to enact an anti-abortion law must make
distinctions based upon the trimester of pregnancy…
i. For the state prior to the first trimester, the abortion decision
must be left to the medical judgement of the pregnant woman’s
attending physician.
ii. For the stage subsequent to approximately the end of the first
trimester, the state, in promoting its interest in the health of the
mother, may, regulate the abortion procedures in ways that are
reasonably related to maternal health.
iii. For the stage subsequent to viability, the state in promoting its
interest in the potentiality of human life my regulate and even
proscribe abortion except where it is necessary for the
preservation of the life or health of the mother.
d. Three state interests have been given to explain anti-abortion laws…
i. The laws were a product of a social concern to discourage illicit
sexual conduct.
1. No court or commentator has taken this argument
ii. The laws were intended to protect the safety and life of the
1. In the past, the procedure was a hazardous one for the
2. Now, while not without risk, the procedure is relatively
a. Mortality rates for woman undergoing
early abortions appear to be as low or
lower than the rates for normal childbirth.
b. The risk increases as pregnancy continues.
c. Thus, the state retains a definite interest
in protecting the woman’s health when
the danger of the abortion is equal to the
danger of childbirth.
3. The laws were intended to protect pre-natal life.
a. This reason rests on the theory that new
human life begins at the moment of
e. The Constitution does not explicitly mention any right to privacy.
However, the Court has recognized a right to privacy or a guarantee
of certain zones of privacy under the Constitution.
i. This right to privacy, whether from the 14th or 9th amendment
is broad enough to encompass a woman’s decision whether or
not to terminate her pregnancy.
ii. However, this right is not absolute; any attempt to limit this
right must meet strict scrutiny.
1. The word person, as used by the 14th Amendment, does
not include the unborn.
a. The amendment does not say so, and
legal abortion practices were far freer than
they are today.
2. The pregnant woman is not isolated in her privacy right.
a. The health and life of the other being is
an interest at some point.
b. The Court will not decide when life
begins; no one else has been able to do it.
i. However, most physicians seem
to point to the point at which the
fetus becomes viable (potentially
able to live outside the mother’s
womb” – 24 to 28 weeks.
f. Thus, the state has an important and legitimate interest in preserving
and protecting the health of the pregnant woman and that it has still
another important and legitimate interest in protecting the
potentiality of human life.
i. The compelling point for the health of the mother comes at the
end of the first trimester since the dangers of abortion equal the
dangers of childbirth at this point.
ii. The compelling point for the potential life comes at the point
of viability since the being has the capability of meaningful life
outside the mother’s womb at this point.
4. Constitutional rights begin at birth
iv. Planned Parenthood v. Casey
1. Facts – Five provisions of the PA Abortion Control Act of 1982 are at
issue here.
a. Requires a 24-hour waiting period.
b. Requires parental consent for a minor (with allowance for judicial
c. Requires a signed statement indicating spousal consent.
d. Exemptions from these requirements can be obtained in the event of
a medical emergency.
e. Imposes certain reporting requirements on facilities that provide
abortion services.
2. Issues – What rights does a woman have regarding obtaining an abortion?
Does the spousal notification requirement create an undue
burden/substantial obstacle for women who want to have an abortion?
3. Holding/Reasoning – Substantive DP  liberty issue
a. Essential holding of Roe is retained and reaffirmed
i. A woman has the right to choose to have an abortion before
viability without undue interference by the state
b. Casey Standard:
i. State may regulate abortion throughout pregnancy unless its
regulation causes undue influence and has the purpose or effect
of placing a substantial obstacle in the path of a woman’s choice
to seek an abortion.
1. State may adopt regulations to protect the health of the
2. State may take measures to inform the woman’s choice
and to persuade the woman to choose childbirth.
3. Required information must be truthful and not
ii. State may prohibit abortion after viability as long as it permits
abortion when necessary to preserve the life or health of the
c. Informed consent, parental notification, and a 24-hour waiting period
do not constitute an undue burden, but spousal notification was an
undue burden
i. Risk of spousal abuse and personal autonomy
d. Fetuses Rights:
i. Fetuses and unborn children have a right to life.
ii. Constitution applies to those who are born
1. NOT fetuses
e. Competing Interests:
i. State – protecting women and fetus/government institutions
such as prisons performing abortions
ii. Women – bodily integrity
iii. Partner – it is their child too, interest in protecting a woman’s
1. Extremely discriminatory against men
2. Financial interest – having to pay for a child or not
paying for a child he does not want
a. TX law – child born of rape gives the
rapist visitation rights
iv. Doctor/Nurse – property right to earn money
b. Sexual Intimacy
i. Lawrence v. Texas
1. Facts – Officers were dispatched to a private residence in response to a
reported weapons disturbance. Def was having homosexual sex with his
partner when the police found him and arrested him. A TX statute makes it
a crime to have sexual intercourse, namely anal sex, with a member of the
same sex.
2. Issue – Does the DPC of the 14th Amendment protect the private,
consensual conduct of homosexuals?
3. Holding/Reasoning - Yes
a. EPC issue – anal sex is not a crime between heterosexuals
i. Discrimination on the basis of sexual orientation
b. Liberty protects the persons from unwarranted government
intrusions into a dwelling or other private places.
c. Analysis – not about the right for sodomy, it’s about the right to
be intimate.
4. Court is intentionally broad
a. Obligation to define the liberty of all, not to mandate our own moral
5. Majority uses rational basis
a. Legitimate interest – if you can get rid of a controversial issue under
RB, why do the heavy lifting for strict scrutiny?
i. Judicial efficiency
b. State has no legitimate interest/good reason
c. Zones of Privacy
i. 14th Amendment – Personal Privacy
1. Contraception – Griswold/Eisenstadt
2. Procreation – Skinner
3. Abortion – Roe, Casey, Danforth
4. Family Relations – Moore v. City of Cleveland, Lawrence,
a. Belle Terre is outside the land of liberty
5. Sexual Relations – Bowers is overruled
d. Williams v. Atty. Gen. of Alabama – ban on sex toys
i. Court upheld a statute criminalizing the sale of sex toys designed or marketed as
useful for the stimulation of human genital organs
ii. Does Lawrence have any bearing on the sale of sex toys?
1. Court says no – no fundamental right to privacy
a. Criminalization of the sale – court says its fine
2. Court said you can have moral legislation – but Lawrence suggests to say
that you cannot
e. Acosta v. Texas – criminalizing distribution of sex toys
i. Law prohibited the distribution of sex toys shaped like sexual organs
1. Court upheld the law – no right of privacy
ii. Lawrence did not imply that commercial promotion of sexual devices was
constitutionally permitted.
iii. State may protect social interest, morality, and decency by prohibiting commercial
dealing in non-communicative objects designed or marketed for use primarily for
the stimulation of human genital organs.
E. Separation & Divorce
a. Fault-Based Divorce
i. Major reasons for fault-based divorce:
1. Adultery
a. Proof problems – how do you know that the individuals are having
sex and not doing something innocent?
b. Edwards
i. Wife comes home from a business trip and finds husband with
a woman who is in a pink dress smoking a cigar
1. There is circumstantial evidence that the husband had
engaged in adultery
ii. Husband denies having sex with another woman
iii. Wife also found receipts from an adult superstore
iv. Husband has very little credibility – court affirms the trial courts
divorce with costs against the husband
2. Desertion
a. Jenkins
i. Domicile
1. Withdrawal
2. Refusal to return
3. No justification
ii. Typically, intermediate scrutiny
3. Imprisonment
a. Reyes
i. Felony conviction can be grounds for fault-based divorce
despite lack of fault
4. Cruelty
a. Benscoter
i. Husband alleged verbal abuse and sought divorce. Court held
the acts of a spouse resulting from ill health do not constitute
grounds for divorce.
ii. What was really going on? Wife had MS and needed husband’s
medical insurance and support
1. State likely didn’t want the wife becoming a ward of the
b. Hughes
i. Wife alleged husband was abusive. Witness confirms constant
fighting and arguments – daughter had to testify.
ii. Court granted the divorce – with physical cruelty courts always
immediately grant the divorce.
ii. Defenses to Fault-Based Divorce
1. Recrimination
a. An accusation against someone who previously brought an
i. Basically, defendant raises a defense that plaintiff committed the
same acts that defendant is being accused of committing.
b. Rankin
i. If both spouses in a divorce proceeding are equally at fault and
neither can clearly be said to be the innocent and injured
spouse, a divorce decree will not be granted to one of the
1. Public policy considerations – court left the parties in
the situation they found themselves in
2. Connivance
a. Secret Plotting – when one spouse baits or sets up the other to
commit adultery
b. Hollis
i. Wife consented to husband’s affair and then stated husband had
committed adultery.
ii. Court held one who consents to another’s misconduct may not
seek a divorce based on that misconduct.
c. Sargent
i. Husband hires a chauffeur and then sues wife after she has an
affair with the chauffer.
1. Argument is connivance – he set it up to entrap his wife
3. Condonation
a. Occurs when a spouse accepts the other spouse’s misconduct which
would constitute grounds for divorce
i. Condoning the wrongful spouse’s behavior
b. Willan
i. Husband alleged his wife was abusing him by constantly
demanding sex when he didn’t want it. Evidence showed that he
resisted but gave in every time.
1. Defense – he was condoning her abusive behavior by
ii. Gender bias – court was not sympathetic to the husband
4. Collusion
a. Conspiracy between husband and wife to make false statements to
lead the court to grant a divorce.
i. Rare now because you can get a no-fault divorce
b. Fuchs
i. Husband was cheating on wife. He agreed to give wife custody
of the children so long as she didn’t contest the divorce.
ii. Wife could contest to the divorce, but the court would honor
the decree to benefit the second wife
5. Insanity
a. If someone becomes insane during the course of the marriage, it
might be grounds for divorce
6. Other Defenses
a. Forgiveness
b. Lapse of time
c. Provocation
b. No-Fault Divorce
i. CA Report
1. CA Governor’s Commission on the Family (Reagan)(1966)
a. No fault divorce was established in 1969
b. Today, 17 states offer only no-fault divorce
c. 33 states offer dual systems
i. Some states offer dual systems, but no fault requires mutual
consent or timed separation
2. No fault was designed to allow parties to reconcile and reduce the divorce
a. To allow people to take a time out and cool off – maybe get some
marital counseling
ii. James Herbie DiFonzo – Customized Marriage
1. Review of divorce law
2. Reconciliation-oriented divorce
3. Family law courts where judge are trained to keep the family together and
taking into account the BIC
iii. Uniform Marriage and Divorce Act
1. What do you need to establish a no-fault divorce?
a. Domicile
i. Must establish domicile in the state you plan to divorce.
ii. Different than just having a house in that state
b. No further conciliation possible
i. Idea that the state could help mend families
ii. Few courts will actually try to help, or send families back to try
to work things out
c. Marriage irretrievably broken
d. Provisions for child custody and support in filing
i. Have to offer a plan
ii. TX & GA – juries can decide custody; this effectually turns the
divorce from no-fault to fault
e. Provisions for spouse
f. Division of property
iv. In re Marriage of Dowd
1. Rule – the state of living separate and apart can be realized without a
physical distance between the parties. The parties had ended all marital
relations a year before the husband filed for dissolution. The wife had
moved out of the family home multiple times during the marriage and
began dissolution proceedings on three separate occasions.
v. Grimm v. Grimm
1. Facts – Wife claimed the marriage had been irretrievably broken during
divorce proceedings. The husband was cold, distant, cruel, and abusive. The
wife tried to file divorce and withdrew the filing multiple times and claimed
her behavior was a result of the husband’s campaign to thwart her efforts to
dissolve the marriage by prolonging the litigation. Husband claimed that the
CT divorce statute violated his freedom of religion.
2. Holding/Reasoning:
a. The statute does not infringe on defendant’s rights to exercise his
religious beliefs merely because it permits wife to obtain a divorce
from him against his wishes.
b. Divorce law is one of neutral and general applicability and does not
violate the first amendment.
c. Irretrievable breakdown was is not disproven by one party’s hope for
3. Rule – The fact that the defendant maintains hope for reconciliation will
not support a finding that there are prospects for a reconciliation
vi. Massar v. Massar
1. Facts – P and D’s marriage deteriorated to the point of separation. The
parties signed an agreement stating Mr. Massar would vacate the marital
home and in exchange, Mrs. Massar would not seek divorce on fault-based
grounds other than 18 months of continued separation. Shortly after
signing the agreement, Mrs. Massar filed a complaint for divorce based on
extreme cruelty. The trial court upheld the agreement and dismissed the
petition for divorce.
2. Holding/Reasoning – agreement will be upheld because it was fair and
supported by consideration. There is no evidence suggesting duress when
the agreement was signed considering Mrs. Massar was represented by an
attorney. Agreements should be encouraged by the state as it gives couples
time to assess their relationship and determine whether a reconciliation is
3. Rule – Marital agreements are enforceable only if they are fair and
equitable. Any marital agreement which is unconscionable or is the product
of fraud or overreaching by a party with the power to take advantage of a
confidential relationship may be set aside.
vii. In re Marriage of Cooper
1. Facts – wife sought to enforce a reconciliation agreement in a subsequent
dissolution action after learning her husband's extramarital affair had not
ended. A few months after the agreement was signed, the husband moved
out of the family home without telling anyone. It was at that time that the
wife learned of the continued affair.
2. Holding/Reasoning – the agreement was not enforceable. We do not
want to create a bargaining environment where fidelity or harmonious
relationships are key variables. The agreement intrudes on the intimacies of
the marital relationship, which is contrary to public policy.
3. Rule – reliance on fault, such as adultery, voids a reconciliation agreement
as it is contrary to public policy.
viii. Boddie v. Connecticut
1. Facts – welfare recipients filed suit against the state on the grounds that the
fees required to file divorce restricted their access to the courts.
2. Holding/Reasoning – marriage involves interests of basic importance in
our society. The state must make divorce available to all. A cost
requirement may offend due process because it operates to foreclose a
party’s opportunity to be heard.
a. Procedural DP – right to be heard and access to courts
3. Notes from Drobac – because the state has exclusive authority to grant
marriages, the state has to make divorce available to people; meaning the
state must waive the fee for people who cannot afford it.
a. Courts have never said there was a fundamental right to divorce
i. Affirms substantive DP right to marry and the associated
interest in divorce.
b. Liberty interest in divorce?
i. Balancing state interests v. individual interests
ii. If someone is too poor to pay the filing fee, that should not be
an impediment to divorce
ix. Sosna v. Iowa
1. Facts – Husband and wife were married. They lived in NY at the time.
After the separation, wife moved to Iowa and filed for divorce. Husband
contested jurisdiction and the court dismissed wife’s cases on the grounds
that she had not meet the state’s residency requirements.
2. Holding/Reasoning – a residency requirement does not violate wife’s
constitutional rights. IA’s durational requirement was a mere delay in the
exercise of P’s rights, not a complete deprivation of them.
c. Indiana Divorce Law
i. Grounds
1. Irretrievable breakdown (no fault) – no proof required other than a
stipulation or assertion.
2. Fault-Based Divorce
a. IC 31-15-2-3 – IN is a no-fault divorce state but has some provisions
that are fault-based
i. Felony conviction – post marriage
ii. Impotence – if existing at the time of the marriage
1. If impotence occurs after the marriage, cannot be used
to get out of the marriage.
iii. Incurable insanity for at least two years
ii. Jurisdictional/Residency Requirements
1. Personal Jurisdiction (int’l shoe) required for property division, custody,
and child/spousal support
a. Minimum contacts required
b. Can grant a divorce without personal jurisdiction if one party lives in
the state
2. Residency – one party living in IN for at least 6 months, resident of county
for 3 months
iii. Right to Divorce
1. Constitutionally protected but not yet recognized as a fundamental
2. Filing Requirements:
a. Specific information
b. Particularly laid out
c. Filing fee – can be waived for indigent persons
3. Responsive Pleadings not required – no default judgments
a. Counter petitions may be filed
4. Actions must be on file for 60 days before finalization (cool down
a. If service by publication, 60 days from the first publication date
5. Possible appointment of GAL for either party or children
6. Different rules for legal separation
a. DOES NOT terminate the marriage
b. Allows the court to decide property division and spousal support
without filing
c. Doesn’t necessarily lead down the path to divorce
i. May be because of children
ii. Also allows a spouse to protect his or her assets and not be
responsible for the other spouse’s debts.
d. Why do it?
i. Religious reasons
ii. Financial reasons – ex wanting to keep health insurance
iii. Personal reasons
7. Provisional Hearings
a. Temporary Orders – custody, property division, etc.
b. Counseling – if there is a possibility for reconciliation, court may
order counseling
i. Will sometimes be mandated – usually cases involving children
iv. Settlement Agreements are Encouraged
1. Majority of divorces are resolved by agreement and don’t go to court. If
approved by the court, it will be entered into a Decree of Dissolution.
a. Court can enter a decree without a final hearing if certain
requirements are met
2. Terms of negotiated agreement are not final until approved by the court
3. The court has the authority to reject or modify an agreement only if the
record demonstrates unfairness, etc.
a. Except with the treatment of children – court has full authority to
step in no matter the circumstances
4. If no settlement – there will be a final hearing
a. If reconciliation is possible, court will likely continue the hearing and
order counseling
b. Provisional orders terminate upon entry of final decree of dissolution
c. Issues must be resolved
i. Property division, custody, child support, visitation, attorney’s
F. Child Custody – BIC
a. Best Interest Standard
i. Tender Years Presumption
1. UNCONSTITUTIONAL – 14th Amendment  EPC
a. Clearly discriminated against men
2. Doctrine said mothers are better suited to take care of their young children.
ii. UMDA Best Interest of the Child
1. Every state uses the standard.
2. Factors to consider:
a. Wishes of the parents and child
b. Interrelationships with parents, siblings, and others who may
significantly affect the child’s best interest
c. Child’s adjustment to his home, school, and community
d. Health of all individuals
3. No consideration of conduct that does NOT affect the child:
a. Affairs, recreational drug use, homosexuality, etc.
iii. ALI Definitions
1. Legal Parent – as defined by state law
2. Parent by Estoppel – occurs when a person holds a child out to be their
a. Person will be obligated to pay child support
b. Lived with the child for at least two years and believed he was the
child’s father, etc.
3. De Facto Parent – common example is a stepparent
a. Person who lived with the child for at least two years and had a
parent-child relationship with the child, performing caretaking
functions, etc.
iv. Joint Custody
1. Legal Custody – parent has basic legal responsibility for a child; ability to
make major decisions regarding the child, including the child’s health,
education, and religious upbringing.
a. Sole – one parent makes all of the decisions
b. Joint – both parents get to make common decisions
2. Physical Custody – the time that a child physically spends in the care of a
a. Joint/Shared
b. Primary
3. Split Custody – occurs when you have multiple children, and each parent
takes a number of the children
4. Divided Custody – custody on an alternative basis
a. Rivero v. Rivero
5. Factors for Joint Custody:
a. Fitness of parents
b. Relationship with the child
c. Preference of child
Disruption of social and school life
Geographic proximity of parental homes
Demands of parent employment
Age and number of children
Sincerity of request for custody
Financial status
Benefits to parents
Any other factors the court deems important and relevant
b. Parental Fitness
i. Arneson v. Arneson
1. Facts – Husband and wife have one child. Husband was diagnosed with
cerebral palsy at a young age. He is confined to a wheelchair and has a
personal attendant. He is able to care for himself but has assistants to make
his life easier and to improve his quality of life. Both parents are equally
devoted to the child. The court appointed a social worker to perform a
custody evaluation, which was a factor in naming Teresa as the primary
physical custodian.
2. Issue – whether the court’s decision was based on husband's disability,
whether the court used the Tender Years doctrine, and whether the court
abused its discretion
3. Holding/Reasoning:
a. A physical disability is not a per se impediment to custody
i. It is a factor to be considered but is ordinarily of minor
b. When faced with a parent’s disability, the court should consider:
i. The person’s actual and potential physical capabilities
ii. How the parent has managed and adapted to the disability
iii. How other members of the household have adjusted to it
iv. The special contributions the person may make to the family
despite, or even because of, the handicap
c. Here, the court took evidence of the disability, but they primarily
focused on the fitness, stability, and the primary caretaker.
i. Teresa was more willing to encourage contact with the other
ii. Both parties were equally stable
iii. Court concluded Teresa was the primary caregiver and the child
should reside with the person she is most emotionally attached
d. If husband felt he was misrepresented by the social worker, he could
have brought in his own expert to contradict her
e. Three Fuerstenberg Elements:
i. Fitness
ii. Stability
iii. Primary caretaker – VERY important
ii. Hollon v. Hollon (red light bulb case)
1. Facts – custody case. Tim and Beth separated approximately two years
after their son was born. T moved in with his parents and left the child with
B. B eventually took in a female roommate, Beth Dukes, and her young
son. Allegations of a homosexual relationship arose. T said the only
problem he had with B retaining permanent custody was his belief that she
had engaged in homosexual activity
2. Issue – custody? BIC
3. Holding/Reasoning – court looks to BIC factors to determine whether
the chancellor was wrong:
a. Age, Health, and Sex of the child
i. Tender years doctrine weakened, but there is still a presumption
that a mother is generally better suited to raise a young child
1. Factor favors Beth
b. Continuous care of the child prior to the separation
i. B retained primary care of the child – T rarely exercised his
visitation rights and only expressed interest in the custodial
parent once allegations of homosexuality arose
1. Factor clearly favors Beth
c. Parenting skills & willingness/capacity to provide primary care
i. T didn’t pay child support regularly and went approximately two
months without seeing the child
ii. T’s work schedule prohibits consistent, in-depth care (police
officer working 12 hour shifts on a rotating schedule)
1. Again, factor clearly favors B
d. Parent Employment and Responsibilities
i. B’s employment is far more conducive to caring for a young
ii. T has a rotating schedule with 12-hour shifts
1. Including weekends and holidays
iii. B works in an office environment. Her position requires her to
work only during the day and never on weekends or holidays.
e. Physical and Mental Health + Age of the Parents
i. Factor balances equally
f. Emotional Ties of Parent and Child
i. Chancellor thought B was untrustworthy and asked the DA’s
office to conduct an investigation into whether she committed
ii. Trial court never found B unfit, and no evidence presented
regarding any detrimental effects the child may have suffered as
a result of living with B
iii. Chancellor failed to mention T’s drinking and gambling habits
nor B’s prior drinking habits and the fact that she’s only
gambled once
g. Stability of Home Environment and Employment
i. B’s employment is more favorable to childrearing than T’s, as
previously stated
ii. At the point of the trial, both parties lived with their parents,
but B had the intention to move into a house of her own
1. Court seemed to use the relocation and change in
employment against her
h. Other Factors
i. The pictures portrayed B as messy and a heavy drinker, even
though T admitted to moving things to make it look messier.
1. Again, no mention of T’s drinking habits
i. Conclusion – it is clear that the chancellor’s consideration focused
on the allegations of B’s homosexual affair
i. Chancellor abused his discretion and ignored the voluminous
evidence which supported P as the preferred custodial parent
ii. Chancery court reversed and custody awarded to B
4. Rule – moral fitness should not outweigh other factors
c. Nexus Test – Sexuality in Child Custody Decisions
i. A parent’s sexual orientation MAY be taken into account ONLY IF there is
evidence that it is likely to cause harm to the child
ii. Used to achieve orientation neutrality and to protect gay and lesbian parents from
judicial bias
iii. The test isn’t actually neutral – it seeks evidence of a connection between
homosexual orientation and harm
1. Concern with production of a homosexual child but no similar concern
with the production of a heterosexual child
d. Race and Ethnicity
i. Palmore v. Sidoti
1. Facts – Father (S) filed a petition to modify custody after learning that
Mother (P) was cohabitating with a black man, whom she married two
months later. The court made no findings of fact which indicated the child
hadn’t been properly cared for. However, the court relied on the
counselor’s recommendation and granted custody to her father to prevent
the child from being subject to environmental pressures and racial stigma
2. Issue – whether the removal of custody on the grounds of entering into an
interracial relationship violated the EPC
3. Holding/Reasoning
a. Obviously… the court made no effort to place its holding on any
ground other than race; clear violation of the EPC
b. Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect.
4. Rule – improper use of race
ii. Jones v. Jones
1. Facts – Dawn and Keivn Jones have three children, one of which was born
to Dawn prior to her marriage with Kevin and was subsequently adopted by
Kevin. Mom is white and dad is native American. The family lived on
Kevin’s parents’ farm. Kevin worked on the farm and often took the
children to work with him as it was a family tradition. The Jones are an
extremely close knit and supportive family. However, Kevin had a drinking
problem. He has been sober for approximately four years and regularly
attends AA meetings. Dawn suffers from depression and low self-esteem
but is seeking counseling. Custody was awarded to Kevin because he could
better help the children with prejudice. Mom appeals.
2. Issue – who gets custody?
3. Holding/Reasoning:
Court may consider race as it relates to a child’s ethical heritage and
the need for the children to be exposed to it.
b. The consideration is permissible so long as the determination is made
on a racially neutral basis.
4. Rule - It is proper for a court, when determining the best interests of a
child in the context of a custody dispute between parents, to consider the
matter of race as it relates to a child’s ethnic heritage and which parent is
more prepared to expose the child to it.
e. Religion and Child Custody
i. Standards of Review
1. Actual Harm Standard - EXAM
a. Religious practices are actually harming the children – allows the
court to restrict a parent
2. Substantial Threat of Harm
a. Yoder – a state can interfere with parental free exercise
indoctrination rights only if there is a substantial threat of harm to
the physical or mental health of the child.
i. Slightly less than a Palmore extrapolation of actual harm.
ii. Would justify a courts restriction of parental rights and avoid
the establishment clause
3. Risk of Harm
a. No apparent risk/relevant issue
ii. Context
1. Religious discrimination – often comes up when judges award custody
based on their own biases.
2. Child abuse/medical treatment cases – corporal discipline is frequently used
in certain religions; medical treatment – when certain religions refuse
medical treatment; court can step in.
iii. Weisberger v. Weisberger
1. Facts – father and mother split after mother revealed she was attracted to
women. The parties agreed to joint legal custody with mother having
primary physical custody. Additionally, the stipulation of settlement
included a religious upbringing clause requiring a strict Hasidic upbringing
in all details, both inside and outside the home, compatible with that of
their families. More than three years after the divorce, F moved to modify
custody on the grounds that mother had radically changed her lifestyle in a
way that conflicted with the religious upbringing clause. F expected mother
to keep the fact that she was gay a secret and alleged that mother dressed
immodestly and permitted a transgender male to reside in her home with
the children. Prior to the divorce, mother was primarily responsible for
taking care of the children and father was satisfied with her care of them.
After the divorce, father married someone new within a month. He testified
that the children were not permitted to come to his home during the first
18 months of marriage and that he did not fully exercise his visitation
rights. Father refused to compromise and stated there is no place for
compromise in their religion.
2. Issue – whether the modification was in the children’s best interests;
whether the religious upbringing stipulation was in the children's best
3. Holding/Reasoning:
a. The children shall remain with mother – father failed to prove it is in
the children’s best interest to award him sole legal custody.
i. Mother has been the primary caretaker since birth. The
children’s emotional and intellectual development is closely tied
to their relationship with mother.
ii. Father consistently failed to exercise his visitation rights or
fulfill his most basic financial obligations after the separation.
b. Liberty Interest – religious upbringing clause should not, and
cannot, be enforced to the extent that it violates a parent’s legitimate
due process right to express oneself and live freely
i. The agreement does not require mother to practice any type of
religion, to dress in any particular way, or to hide her views or
identity from the children.
c. It is in the children’s best interest to remain in the Hasidic
i. Mother must comply with the religious upbringing stipulation
ii. Father is permitted to exercise final decision-making authority
over children’s education and to continue to permit him to
require the children to practice full religious observance in
accordance with the Hasidic practices while they are in his
custody or in the custody of a school which requires adherence
to such practices.
4. Analysis
a. What about 14th Amendment?
i. Lawrence v. Texas – right to express oneself and live freely
b. 1 Amendment
i. Free exercise - Doesn’t mom have free exercise rights that are
equal to dad?
ii. Establishment clause
iii. Courts can consider religion when the child has developed
actual ties to a specific religion.
c. Modification standard – change of circumstances and modification is
necessary to ensure the BIC.
i. Courts hate modifying custody orders
1. They don’t like the continual back and forth between
parents – they want parents to try to get along
ii. Courts often want to see a change of circumstances that has a
negative impact on the children to justify modifications.
iii. If the parents agree and it is a reasonable agreement, the judge
will likely approve the agreement.
iv. EXAM – do NOT get bogged down by the religious portion. Focus on BIC.
1. What will provide the children with the best possible outcome?
a. Look at which circumstance is better
i. Ex – schools. Which school is better? Better test scores? Better
ii. Ex – fasting. Mom wants the children to fast from sunup to
sundown, but one child is diabetic.
1. Obviously not good for the child.
2. Radar up for discrimination of any kind
a. Religious discrimination – actual harm test/substantial harm
i. Try to make custody evaluation neutral.
1. Test scores?
2. Healthy diet?
f. The Child’s Preference
i. Courts will consider a child’s preference between the age of 12-14
1. Children tend to be pretty stable between that timeframe – could be a little
earlier or a little later
a. Typically, before puberty/on the cusp of puberty
2. 16-18 – more volatile in their preferences/decisions
ii. Concerns
1. Children lack ability to understand the judicial process
2. Children will feel guilt, fear, or other negative emotions
3. Parents will pressure children to provide inaccurate information
iii. Meeting with trained judges:
1. Better outcome if the children feel like they have a voice
2. Reduced trauma, elevated to level of parents
a. Less anxiety
3. Helpful to judges in ruling because children might tell the judge what is
really going on at home.
4. Judge will typically have an in-camera meeting without the parents
a. Usually a bailiff, court reporter, maybe counsel for the parents
b. Judge will stress that it is not the child’s choice and that the judge
simply wants information from the child to make his/her final
determination to ease the child’s mind in feeling like he/she is
choosing one parent over the other
iv. Counsel for the child
1. Casa – court appointed special advocates for children
2. Roles
a. Guardian Ad Litem (GAL)
i. Advance BIC from a neutral standard
b. Attorney – not required in IN
c. Advances BIC or the child’s expressed wishes
d. Model rules of professional conduct provide guidance for
representing clients with diminished capacity
i. Balancing the wishes child and what is in the best interests of
the child
g. Joint Custody
i. Rivero v. Rivero
1. Facts – parties filed for divorce and agreed to joint custody of the child
with Mrs. Rivero having physical custody five days a week and Mr. Rivero
having physical custody for the remaining two days. Per the agreement,
neither party was obligated to pay child support. Less than two months
later, Mrs. Rivero moved to modify the decree to award her child support.
The court dismissed the case. Less than a year later, Mrs. Rivero moved the
court for primary physical custody and child support. She alleged Mr.
Rivero didn’t spend time with the child, instead, his elderly mother took
care of the child and alleged he didn’t have suitable living arrangements for
the child.
Issue – how to define joint custody?
a. Legal custody involves having basic legal responsibility for a child
and making major decisions regarding the child, including health,
education, and religious upbringing.
b. In joint legal custody situations, parents must consult with each other
to make major decisions regarding the child’s upbringing, while the
parent with whom the child is residing at that time usually makes
minor day to day decisions.
i. Joint legal custody can exist regardless of physical custody
ii. Parents need not have equal decision-making power in a joint
legal custody situation
c. Joint physical custody awards custody to both parents and provides
that physical custody shall be shared by the parents in a way to ensure
the child/children of frequent associations and a continuing
relationship with BOTH parents
d. Our law presumes that joint physical custody approximates a 50/50
i. Not always possible – must be some flexibility
e. When does a timeshare become so unequal that it is no longer joint
physical custody?
i. Must be approximately 50/50
ii. To allow for necessary flexibility, each parent must have
physical custody of the child at least 40% of the time to
constitute joint physical custody.
1. Time should be calculated over one calendar year
a. To have joint physical custody, each
parent must have physical custody of the
child for at least 146 days per year
f. Focus of physical custody is the child’s residence
i. The party with primary physical custody is the party that has the
primary responsibility for maintaining a home for the child and
providing for the child’s basic needs.
a. Physical custody affects modifications and moves
i. Parents usually move for employment
b. Physical custody affects child support awards
a. What does the legislature want?
i. Judicial activism?
b. Modification Case
i. Freedom to contract as long as no modification is sought
ii. BIC always controls
6. Notes
a. Many states failed to recognize joint custody until 1970s
i. Now it’s common
b. Some courts will award joint custody even though one parent isn’t
G. Financial Consequences of Divorce
a. Theories for allocation of family assets
i. Fault Principle – dividing assets based on the fault of the parties (rare)
ii. Need Principle – goal is to keep spouses off welfare. If you need it, they will award
1. Problem – if you award alimony and assets, there is no incentive to “retool”
to the marketplace
iii. Status Principle – designed to maintain the statutes of the parties as equal as
1. Problem – it can produce a windfall for one spouse (particularly one of
short duration)
iv. Rehabilitation Principle – designed to give support to the spouse for him/her to
regain earning capacity and become a productive member of society.
1. Ex – B/A to Ms. Jones until she graduates from law school (her stated
intent) at which time rent goes to Mr. Jones.
a. Unusual because the court typically wants to break all ties between
the two parties
v. Contribution Principle – whatever you put into the marriage you should draw out
of it (similar to community property) – avoids the appearance of welfare because a
homemaker was a contribution
1. Problem – it requires evaluation of the respective contributions. It is
difficult to put a dollar amount on some contributions
H. Property, Alimony, and Child Support Awards
a. Property Division
i. Most states are common law states, including IN
1. Everything goes into a marital pot with equal distribution upon dissolution
ii. Community Property Systems
1. Marriage is a partnership
a. Property each spouse owned before the marriage – separate property
of the spouse
b. Property either spouse acquired during the marriage – part of the
i. During the marriage, each spouse had a present, undivided right
to one-half of the community property
ii. Upon divorce or death, each spouse retained their separate
property and typically got half of the community property
c. If an asset was acquired by gift or inheritance, it was considered as
separate despite its acquisition during the marriage.
d. Uniform Marriage and Divorce Act – Alt B
2. 9 Community Property States – KNOW THESE
a. AZ
b. CA
c. ID
d. LA
e. NV
f. NM
g. TX
h. WA
i. WI
iii. Common Law System
1. Uniform Marriage and Divorce Act – Alt A.
2. Early Common Law
a. Under the principle of coverture, which extinguished a married
woman’s independent legal personality, a wife’s personal property
became the husbands.
b. Husband acquired two significant rights:
i. Estate jure uxoris – gave husband rights of management over
his wife’s separate landed property
1. Including rents and profits and the right to encumber
the property with liens for debts incurred during the
ii. Curtesy – husband’s right to a life estate over the wife’s land
upon her death, if a child or children had been born of the
c. Wife acquired a dower right – entitled her to a life estate over onethird of all of the husband’s land, acquired during the marriage.
3. Equity Courts and Statutory Modifications
a. Married Women’s Property Acts (MWPA) – allowed married
women to hold their own property free and clear from any of the
husband’s traditional interests at common law.
b. Started a trend that led to the acceptance of the right of a married
woman: (1) to earn her own earnings, (2) to contract and carry on a
business, and (3) to transfer property without her husband’s consent.
iv. What is Marital Property?
1. Increase in the Value of Separate Property
a. Active increase – any increase in value of separate property that is
attributable either to the expenditure of marital capital (capital
acquired by either or both spouses during marriage) or to marital
b. Passive increase – any increase attributable to market forces or
efforts of third parties outside the marriage.
2. Innerbichler v. Innerbichler
a. Facts – After eleven years of marriage, husband filed for a limited
divorce and wife filed a countersuit seeking an absolute divorce on
the grounds of adultery. More than one year prior to their marriage,
husband co-founded TAMSCO, a company that provides technical
and management services to the government and private sectors.
Husband sought certification of the company a few months before
the parties were married and received the certification after the
marriage. Husband argued that the company’s increase in value was
not marital property because the company was created before the
marriage and a majority of the company’s contracts were traceable to
contracts won prior to the marriage. The trial court ruled in favor of
the wife and granted her a monetary award of over two million
dollars in addition to alimony. Husband appeals.
b. Holding/Reasoning:
i. Property that is initially non-marital can become marital if
increases in the property’s value results primarily from the active
efforts of the owner-spouse during the marriage.
ii. Though TAMSCO was created before the marriage, evidence
shows that its value soared after the marriage.
iii. Court held that the record clearly supported the trial court’s
decision to treat all of the company’s appreciation as marital.
1. The value increased significantly after the marriage and
the husband was the force behind the success.
2. Court was correct in considering only 51% of the
appreciation because it corresponds with husband’s
ownership interests.
iv. Additionally, the judge found that the husband was responsible
for the estrangement of the parties by committing adultery
during the marriage and later deserting his wife.
1. Husband had also spent a large amount of marital
property during the separation on his lifestyle and
c. Calculation – KNOW FOR THE FINAL
i. TAMSCO – worth $8.3 million
ii. Husband has 51% ownership - $4,233,000
iii. Husband put in a separate $153,000
1. $4,233,000 - $153,000 = marital property $4,080,000
a. Each gets $2,040,000
b. Husband gets $2,193,000
i. Have to add the $153,000 back
c. IN – equitable split; often ends in
50/50 split
iv. Innerbichler via Pereira
1. Commingling transmuted TAMSCO separate property
into martial property
a. Rather than giving husband what he
initially put in, Pereira court said that
wasn’t fair.
b. Separate
i. H = $153k
ii. + interest (10-year treasury bond
over 15 years) = $85,369
iii. Total = $238,369
c. Martial = $4,233k – husband’s premarital
share. So
i. -$238,369 – husband’s share
from above
ii. = $3,994,631 [equitably divided?
Or 1,997,315.5 each]
d. Last step for the TOTAL division
i. H = $238,369 + $1,997,315.5 =
ii. W = $1,997,315.5
2. EXAM – look for something like “had husband
invested in a treasury bond, he would have had x”
3. Holman v. Holman
a. Facts – Husband owned a house prior to the marriage but was not
living in it because his ex-wife resided there. After the ex-wife
vacated, husband and new wife began remodeling the house. A
portion of the proceeds from the sale of another marital house were
used by the parties to remodel the Farmhouse. The parties also
borrowed $75,000 to construct a commercial building on land
husband inherited during the course of the marriage. According to
the wife, husband made all of the payments on the loan for the
commercial building out of their joint account. Wife stated the parties
received rental income from the commercial building and stated that
she opened a business in the newly constructed building. The trial
court found that the wife had acquired a marital interest in the
property and was entitled to a judgement against husband for nearly
b. Holding/Reasoning:
i. Source of funds rule – when property is acquired by an
expenditure of both nonmarital and martial property, the
property is characterized as part nonmartial and part marital.
1. Equitable distribution
ii. Court determines the trial court applied the wrong calculation
regarding the marital portion of the commercial property
1. This is because a spouse contributing nonmartial
property is entitled to an interest in the property in the
ration of the nonmarital investment to the total
nonmartial and martial investment in the property.
2. Equation:
a. Nonmarital property = nonmarital
contribution/total contribution x equity
b. Martial property = martial
contribution/total contribution x equity
iii. Both parties agreed they each expended time and labor in
remodeling the farmhouse in addition to the money they spent.
c. Notes case – Kaaa v. Kaaa
i. Court in Kaaa held that if the market-driven (passive)
appreciation in value happened during the marriage, while a
mortgage was being paid down using martial funds, and the
non-titled spouse contributed to the upkeep of the home
through his labor, the entire value of the appreciation was
i. Initial purchase 260k, 185k mortgage, 75k down
1. Down payment was separate property
2. Home is now worth 315k-177 mortgage = 174k equity
3. Initial separate property – 75k used as down payment
4. Invested marital funds = 185k-177k = 8k
a. Original mortgage amount – current
mortgage amount
b. Martial contribution = 8k
ii. Division? [total contribution = 75k +8k = 83k]
1. Holman Source of Funds
a. Joint contribution/total x equity
i. (8/83) x 174k = 16,771 [marital]
b. Separate money/total x equity
i. (75/83k) x 174k = 157,228
c. Wife’s argument – had I known I
would’ve put in more money
2. Innerbichler Active Appreciation
a. Total worth – current mortgage = equity
b. Equity – 75k (original separate
contribution) = [# for marital division]
i. 351-177 = [174] -75 = 99k
ii. LAST STEP – split the 99k and
add the 75k back into husband’s
iii. Ex – Drobac’s second husband example
1. On the day of the wedding, husband said they should
use CA law for their marriage.
a. This is important because CA law would
then be applicable in IN. It would be the
controlling law
b. Therefore, a family law in IN would need
to know how to apply CA law or
associate in a CA lawyer
iv. Bargaining in the Shadow of the law – detail your client
what to expect. Tell them which jurisdiction they are in
1. Drobac would do initial review of the case and then
have client sign an authorization to settle the case for a
specific amount (ex – client agrees to 150k)
2. As litigation progresses, client gets mad and demands
more money, Drobac would give them the authorization
they previously signed with the amount they would settle
Then tell client their expectations are not
v. Ex – husband gets 75k in inheritance. Husband and wife
decide to use it for a home together.
1. Inheritance in community property states are
2. Inheritance in IN are separate
a. Must keep them separate
i. If you comingle the funds, court
might do Holman, but they
might also do an Innerbichler
vi. IN – everything goes in the pot (EXAM)
1. Except for inheritance – unless the parties particularly
2. Exception – marriage of short duration
a. Ex – wife is worth 3 million and husband,
personal body trainer, is worth nothing
and has a lot of debt. They are married
for a year.
i. Do they take all of wife’s wealth
and husband’s debt and put it in
the pot?
ii. No, marriage of short duration –
separate property
v. Pensions and Other Deferred Income
1. Laing v. Laing – Reread for EXAM
a. Facts – trial court awarded wife a portion of husband’s non-vested
pension In Alaska, majority rule is that vested pension and retirement
benefits are subject to division by a divorce court. Nonvested
pensions are not held to be divisible because the interests are too
b. Issue – non-vested pension – how should it be divided?
i. Is it marital property?
1. Pros – more equitable
2. Cons – too speculative
c. Holding/Reasoning:
i. Contingencies that may prevent the employee spouse from ever
collecting his or her nonvested pension should not bar the nonemployee spouse from recovering a share if the pension is paid
1. Because there is no guarantee that a non-vested pension
will ever be worth anything, a non-vested pension
should not be included in the initial distribution of
marital assets.
ii. Two Approaches:
1. Present Value Approach:
a. Court determines a portion of the present
value representing the marital
contribution to the accrued pension
b. Number of years the pension has
accrued/the total number of years during
which the employed spouse’s pension has
c. Unacceptable method – if the court gives
the non-employee spouse a lump sum at
the time of the divorce, the employee
spouse may lose the entire amount
awarded in the event of forfeiture
i. Unfair approach
2. Reserved Jurisdiction Approach:
a. Trial court retains jurisdiction and orders
the employee spouse to pay the former
spouse a fraction of each pension
payment actually received
b. Once the pension vests, that portion of
the pension which is martial property can
be calculated as of the time of the divorce
c. Preferred approach because the
nonvested pension may be forfeited in its
entirety. For this reason, it should not be
considered when the trial court makes the
initial property division at the time of the
i. If and when the pension vests,
the non-employee spouse may
seek an order dividing the
d. Notes
1. Not necessarily equal
ii. If the pension is vested, you can draw from it. If it is nonvested, you cannot draw from it and have to continue working.
iii. Retirement Equity Act of 1984 – REACT
1. QDRO – Qualified Domestic Relations Order
a. Administers this situation separately. If
the court says the pension is marital and is
subject to division, QDRO will send the
payment or will let you take a present
iv. Reserved jurisdiction is not the preferred method because
things are not final.
1. Pension gets paid overtime, sometimes until
someone dies or sometimes to a certain amount.
2. If you are going to divide a pension today, you have
to give the spread-out asset of periodic payments,
you have to give it a present value
a. How much do I have to have today
that if I invested it today it would get
to $x in a normal amount of time?
vi. Ex – if present value of the pension is 10k and the value of a
boat they own is 10k, they will give wife the 10k boat to leave
the pension with husband and to prevent future controversy.
1. Boat is an offsetting asset.
2. However, if husband’s pension never vests, he has lost
out because wife got the 10k.
3. In IN, pension must be vested in order to be divided.
vi. Human Capital and Other Intangible Assets
1. Postema v. Postema
a. Facts – wife agreed to put her nursing degree on hold to help put
husband through law school. Wife provided financial support and
was primarily responsible for maintaining the couple’s home. The
trial court found the breakdown of marriage was primarily husband’s
fault and that def’s law degree was a marital asset valued at $80,000.
Plaintiff was awarded $32,000 on the basis the amount would
equalize the parties.
b. Issue – what is the value of defendant’s law degree?
c. Holding/Reasoning:
i. A spouse’s advanced degree is marital property if the degree is
obtained as a product of a concerted family effort.
1. As a concerted family effort, both parties expect to be
compensated for their respective sacrifices, efforts, and
contributions by eventually sharing in the fruits of the
ii. Facts show that plaintiff postponed her pursuit of an associate
degree in nursing, moved to Detriot so husband could attend
school, and worked full time to support herself and def while
def attended classes. She was also bore primary responsibility
for the daily household tasks.
iii. Where a concerted effort is involved, a spouse’s entitlement to
compensation constitutes a recognized right; it is not dependent
upon factors related to the need for support
1. Alimony is not a satisfactory method because the value
of an advanced degree does not evaporate upon the
nondegree-earning spouse’s remarriage.
iv. Valuation
1. Two Methods:
a. Awarding a percentage share of the
present value of the future earnings
attributable to the degree, or
i. Focuses on the degree’s present
value by attempting to estimate
what the person holding the
degree is likely to make in a
particular job market and
subtracting what that person
would have earned without the
ii. Considerations:
iii. (1) The length of the marriage
after the degree was obtained
iv. (2) The sources and extent of
financial support given to the
degree holder during the years
in school
v. (3) The overall division of the
parties’ marital property
b. Restitution
i. Focuses on the cost of obtaining
the degree
ii. Marvin v. Marvin
iii. Equitable valuation –
reimburses spouse who
contributes but does not earn
the degree – similar to
2. Court decides valuation of a nonstudent spouse’s
equitable claim involving an advanced degree involves a
two-step analysis:
a. First, an examination of the sacrifices,
efforts, and contributions of the
nonstudent spouse toward attainment
of the degree.
b. Second, given such sacrifices, efforts,
and contributions, a determination of
what remedy or means of
compensation would most equitably
compensate the nonstudent spouse
under the facts of the case
3. Plaintiff received little reward, if any for her sacrifices,
efforts, and contributions toward defendant’s degree
d. Notes:
i. Minority view of the treatment of academic degrees
1. Courts that allow them for division do so on the basis
that the spouse probably wouldn’t have obtained the
degree but for the non-student’s support
2. Concerted family effort
3. Pros – takes care of the non-student
4. Cons – no guarantee of an income after you earn an
educational degree.
This isn’t like a piece of property or other
tangible asset that can be sold for an
estimated value
i. Speculative
b. How do you value an academic degree?
ii. Most states court will not treat an academic degree as a martial
iii. When academic degrees are not divided, that can be
1. Ex – Drobac’s aunt helped her husband through law
school. He’s worth millions now. He divorced her as
soon as he graduated law school.
a. CA court didn’t award her any share of
his diploma
b. She was awarded primary custody of the
vii. Marital Debt
1. Polacheck v. Polacheck
a. Facts – husband was a business executive earning a six-figure salary
plus bonuses while wife stayed home to take care of the household
and the children. During the later years of the marriage, wife went to
nursing school and incurred $40,000 in student debt. She received her
nursing degree before the end of the marriage and was employed
with an annual salary of $58,000. Parties agreed the student loan debt
was a marital debt, but the trial court allocated the debt solely to the
wife. Trial court’s allocation of the debt was premised on the
presumption that wife would be the sole beneficiary of her degree.
b. Issue – whether wife should be solely responsible for the student
loan debt incurred during the marriage?
c. Holding/Reasoning:
i. Courts often consider relative incomes and earning abilities of
the parties
1. Ohio statute was different as it was wholly asset based.
ii. Trial court reasoned wife would be responsible because the
loans enabled the educated spouse to acquire an increased
earning ability that does not benefit the other spouse
1. Court said this is a flawed assumption – no reason to
treat marital debts different from assets unless there is
evidence of financial misconduct or covert financial
activity by one spouse
iii. Degree-earning spouse benefits the other spouse as it likely
means the other spouse will pay less spousal support or for a
shorter duration as the degree earning spouse will have his/her
own economic independence.
iv. Timing of the degree is not determinative – one spouse typically
postpones education or skills to take care of the household and
1. Timing of obtaining the education or degree is
intertwined with the ongoing choices of the spouses
during marriage
v. Although wife earned her nursing degree and achieved an
increased earning ability by the time of the divorce, husband
was still making more than three times as much as her.
d. Notes:
i. CA – if you accrue debt before you are married, it is separate
ii. Exam – I go to law school I have student debt. After I get
married, my spouse and I pay off that debt.
1. Partner’s claim? Marital money was used to draw down
one partner’s debt. Therefore, partner should have a
claim to trace that marital money that went to pay off
the separate debt.
a. Should be easy to calculate.
2. If debt has been drawn down through contributions of a
joint account, partner can claim half, or $25,000.
a. Marital – divide in half to determine what
husband/wife’s share would be
b. Then could do the prior valuation
i. Innerbichler
ii. Holman
iii. “Had I put this in a treasury
iii. Rule – rejected sole benefit notion; must consider relative
economic ability to pay; Husband earned more than 3x wife
1. Court held this was something that could be divided.
iv. Look out for whether you
1. Essay question – it is not clear from the facts whether
new Columbia allows for the division of debt acquired
before or during the marriage.
a. Following the Polacheck case – analysis
of why debt may be divided
2. Tucker v. Tucker
a. Facts – Wife went to help husband’s family after the loss of a family
member. Husband received reports of involvement between wife and
brother-in-law and confronted wife. Husband alleged wife told him
she preferred the brother-in-law over him and filed for divorce. Wife
denied any sexual relationship with brother-in-law and that she was
only trying to comfort him after the loss of his wife. Trial court
awarded most of the assets to husband due to the alleged affair. Wife
b. Issue – should marital misconduct affect the distribution of marital
property if the misconduct does not change the balance of the
purported equal partnership?
c. Holding/Reasoning:
i. Marital misconduct may affect the distribution of marital
property only if the misconduct changes the balance of the
partnership so that the aggrieved spouse must assume more
than his or her share of the partnership load.
1. Nothing in the record demonstrates that type of
misconduct – wife contributed equally throughout the
ii. Court granted wife half of the home equity and the washing
d. Notes
i. Issue – was division of meager family assets “just”?
ii. Court said marital misconduct is not basis for excessive
maintenance or inadequate marital property
1. No evidence that wife didn’t contribute her share to the
3. Elkus v. Elkus – Fame
a. Fame is marital asset – not majority view
b. Analysis – focus on the nature of the contribution, not the nature of
the asset itself
b. Alimony
i. Financial Consequences of Divorce
1. Theories for allocation of family assets
a. Fault Principle b. Need Principle – one of the spouses has greater need than the other
c. Status Principle – courts are trying to maintain status the parties
reached at the time they separated
i. Difficult to do
d. Rehabilitation Principle – one of the spouses has been out of the
workforce for a while and needs to learn new skills so support is
directed to allow the spouse to gain the skills needed
e. Contribution Principle – Postema case and Elkus case. How much
are people putting into assets and the marriage? Might be
ii. Uniform Marriage and Divorce Act
1. Why order an inequitable property division rather than maintenance?
a. If one party has the children, they are likely to get more assets.
i. One partner will be staying home with the children especially if
they’re young
b. Fault based divorce – if harm was egregious
i. May not warrant an inequitable division
c. Judicial convenience and inequitable division usually do not mesh.
i. Not a justification for an inequitable division
d. Ex – wife gets breast cancer (etc)/one of the parties gets sick. Then
you have a serious issue where one of the parties could become a
ward of the state if there is not an inequitable division of assets.
i. May be that couple was heading for divorce for a long time and
the illness complicates the situation
ii. Could also be that the stress of the illness lead to the divorce
iii. Courts DO NOT want divorced spouses to become a ward of
the state. They would prefer to do an inequitable division and
call it equitable because one of the parties is sick.
iii. Types of Alimony
1. Permanent Periodic Spousal Support – paid regularly to provide for the
maintenance and support of a spouse who neither has the resources nor the
ability to be self-sustaining.
a. Modifiable by petitioning the court and demonstrating a substantial
change in circumstances
2. Rehabilitative Spousal Support – consists of periodic payments for a
limited period of time calculated to enable a spouse to gain the skills or
education necessary so that he can enter/re-enter the workforce and
become self-supportive
a. May also be modified by showing of substantial change in
3. Reimbursement Spousal Support – a fixed sum neither modifiable nor
terminable to a spouse who supported the other spouse while the later
obtained a professional license or degree
a. Amount awarded is based on the amount of the supporting spouse’s
contribution – NOT the value of the professional license or degree
b. May be given even when the supporting spouse is not otherwise
eligible for spousal support
4. Limited Duration Spousal Support iv. Gnall v. Gnall
1. Facts – James and Elizabeth were married. The parties decided E should
stay home to care for the children full-time. At the time of divorce, they
had three children. Pursuant to the custody agreement, E was the primary
caretaker of the children. James was the sole wage earner and earned wages
over $1 million. Trial court awarded limited duration alimony to be paid
monthly until the youngest child were to reach the age of majority. J
2. Issue – should permanent alimony be awarded?
3. Holding/Reasoning:
a. Permanent alimony – CL principle that a husband has a duty to
support his wife after a divorce or separation
i. Purpose is to allow the dependent spouse to live the same
lifestyle to which he/she grew accustomed to during the
ii. Courts must evaluate the actual needs of the wife and the actual
means of the husband, the physical and social position of the
parties, husband’s property and income, and wife’s separate
property and income.
b. Limited duration alimony – used to address a dependent spouse’s
post-divorce needs following short-term marriage where permanent
or rehabilitative alimony would be inappropriate or inapplicable but
nonetheless economic assistance for a limited period would be just.
i. Not to be awarded in circumstances where permanent alimony
is awarded
c. Rehabilitative alimony – short-term award for the purpose of
financially supporting a spouse while he or she prepares to reenter
the workforce through training or education
i. Purpose is to assist the dependent spouse in obtaining gainful
employment so as to enhance and improve the earning capacity
of the economically dependent spouse
1. Appropriate where a spouse gave up or postponed her
own education to support the household
ii. May be awarded in addition to permanent alimony
d. Reimbursement alimony – created to combat the concept that
professional degrees and licenses are property subject to equitable
distribution at the termination of the marriage.
i. Awarded to a spouse who has made financial sacrifices resulting
in a temporarily reduced standard of living, in order to allow the
other spouse to secure an advanced degree or professional
license to enhance the parties’ future standard of living.
ii. Can be awarded on its own or in addition to another type of
e. Here, trial court improperly weighed duration over the other factors
i. Trial court was held up on a long-term marriage being more
than twenty-five years.
1. No per se rule exists indicating that permanent alimony
is unwarranted unless the twenty-fifth anniversary has
been reached
ii. All thirteen factors must be considered and given due
weight – duration is only one factor
4. Notes:
a. Rule – 4 types of alimony
i. Permanent – 15 years or more
ii. Limited Duration – shorter marriage. As long as it doesn’t look
like one of the parties is going to become a ward of the state,
court probably won’t award alimony
1. CA – 10 years or more unless there are other factors
2. Alimony in TX is unconstitutional
iii. Rehabilitation
iv. Reimbursement
1. Professional degrees are not property
b. Appellate division created a bright-line rule
i. Emphasis on 13 factors – KNOW FOR EXAM
v. Court Discretion
1. Need and Ability to Pay vs. Equalizing Incomes
a. Hodge v. Hodge
i. Facts – Husband and wife were married with one child. Wife
supported the family while husband was in medical school.
Shortly after husband received his medical license, he told wife
he wanted a divorce. Court awarded wife alimony of $100/week
for fourteen years. Husband appeals.
ii. Issue – is the primary purpose of alimony to provide the
receiving spouse with sufficient income to obtain the necessities
of life?
iii. Holding/Reasoning:
1. Yes – primary purpose of alimony is to provide one
spouse with sufficient income to obtain the necessities
of life, not to punish the other spouse
a. Trial court stated the alimony was needed
to place some economic responsibility on
husband for wife’s sacrifices made during
the marriage.
b. Purpose of alimony under the PA statute
is rehabilitation not reimbursement
2. Marriage should not be entered into with the expectation
of a future accounting that will reimburse each spouse
for his or her marital contributions
3. Case remanded for the trial court to determine whether
wife is entitled to alimony based on the listed factors.
iv. Notes
1. Purpose is rehabilitation NOT reimbursement
a. Theory approach
2. Need and necessity control – courts do not want one
of the spouses to go on welfare or public assistance
a. Similarly, if they think someone is just
slacking of and not getting a job out of
spite, the court will figure that out too.
2. Fault
a. Dykman v. Dykman
i. Facts – Husband was a doctor and wife was a psychiatrist. Wife
was employed for several years and gave a large amount of her
income (up to $12k/month) to husband with the understanding
the funds would be used for marital purposes such as reduction
of debt on the parties’ property. Also, evidence husband was
planning to divorce wife to have an open relationship with
multiple young women to whom he gave substantial gifts of
cars, VS clothing, and many thousands of dollars. Husband also
forged wife’s signature to obtain a second mortgage on one of
their properties without wife’s knowledge and forged wife’s
signature on tax returns. Trial court awarded wife alimony in the
amount of $1,023 per month to repay wife for all of the money
she gave him. Husband appealed.
1. Large age gap between parties – wife was in her fifties
and husband was in his eighties
ii. Issue – whether the trial court’s award of alimony to wife was
proper in light of husband’s advanced age
iii. Holding/Reasoning:
1. Husband’s financial misconduct direly relates to wife’s
financial needs – she was nearly bankrupt
2. Husband argues it is unfair to order an eighty-five-yearold gentleman to pay alimony in an amount that would
require him to seek further employment
a. Court doesn’t buy it – husband was
employed at the time of the hearing and
the amount awarded to wife was well
within his means
iv. Notes:
1. Courts are really trying to get away from fault-based
a. Courts do take fault into account though
(they’re human)
2. Conclusion – he pays since he retains a considerable
amount of vigor and ability.
vi. Modification
1. Schwarz v. Schwarz
a. Facts – Husband and wife had a separation agreement providing def
pay alimony to P in the amount of $2,000 per week until the death of
either party or the plaintiff’s remarriage. Def filed for a modification
to decrease the amount as a result of wife’s change in circumstances.
Wife did the same but to increase the amount due to husband’s
increase in income. Husband was to pay for wife’s health insurance
for three years. After that, wife started a job at a golf pro shop to
acquire health insurance with a man she was living with (Kane). For
reasons beyond Kane’s control the shop was no longer able to pay
for wife’s health insurance. As a result, plaintiff would have to pay
approximately $15,000/year for health insurance. Wife has significant
health issues including ulcerative colitis and leukemia. Wife’s income
had not changed since the divorce, but husband’s income had
increased by approximately $35,000/year. Husband tried to claim
wife’s significant other, Kane, had increased her income. However,
they no longer live together because it was causing wife stress due to
husband’s filing of the motion for modification. Court ultimately
increased husband’s alimony payments by $175/week. Husband
b. Issue- was there a substantial change in circumstances? Did court
properly modify husband’s alimony obligations?
c. Holding/Reasoning:
i. If both parties have undergone a substantial change in
circumstances, the court has the discretion to fashion a
modification taking each changed circumstances into account
ii. Here, wife had substantial increase in health insurance costs and
husband’s income had increased by nearly 20%.
1. Though both parties met their burden of proof by
showing each other’s circumstances had changed, court
was able to split the difference as it saw fit.
d. Dissent – holding inconsistent. Court permitted husband’s motion
to modify alimony but ended up increasing his payment.
i. Moreover, holding is contrary to CT statute prohibiting a
former spouse from cohabitating with another person – but not
marrying that person – as a means to prevent the loss of
continued alimony payments.
e. Notes:
i. Whenever you see divorce – first thing to look at is how long
the parties were married
1. If it was a short duration, court less likely to award
a. Jurisdiction may have a specific date
b. Average for long duration – 10 or 15 yrs
2. Will a court consider the time the couple wasn’t married
but still together?
a. Marvin v. Marvin
b. Only if there was a contract, unjust
enrichment, etc.
ii. Issue – why was the alimony awarded in the first place?
1. Be ready to discuss if there is a substantial change
in circumstances and the different financial
consequences of divorce – EXAM
a. EXAM – know the theories for
allocation of family assets
i. Fault Principle
ii. Need Principle
iii. Status Principle
iv. Rehabilitation Principle
v. Contribution Principle
b. Need based approach – if the original
award was based on need and that need
hasn’t gone away because cohabiting
person isn’t providing insurance or not
helping support the person, then the
court may decide that cohabiting doesn’t
affect the original order.
i. Need is still there – doesn’t
ii. Basic necessities – food, shelter,
gas for car, money to get to
c. Status Principle – difficult to maintain a
status post-divorce because you lose the
economies of scale
i. Status is more want based –
belonging to a ski club, girls night
out every Thursday night, book
club, etc.
ii. Two houses, etc.
iii. When one party’s income
increases, does that mean the
other spouse’s income should
also increase?
iv. No, typically limited to the status
when they were married.
c. Child Support
i. Average Cost of Raising a Child - $233,610
ii. Standards of Child Support Obligations
a. Two basic ideas – (1) a child of divorce should be supported at the
same level as an intact family and (2) both parents should be
contributing to child support.
b. Computed on the combined income of the parents and divided in
proportion to each parent’s income
i. Used in IN
c. Important to understand that marginal expenditures on children are
not the same as child costs. In order to calculate marginal
expenditures on children, researchers calculate the additional
amounts that a couple with a certain number of children would have
to spend compared to a childfree couple
d. Computed on the combined incomes of the parents and split in
proportion to each parent’s income.
i. As the level of the parents’ income increases, the state
drops the overall percentage owed.
2. Percentage of Obligor Income Model
a. Sets child support obligation based only on the non-custodial
parent’s level of income and the number of children for which a
support order is sought
i. Assumes custodial parent is already spending their own income
on the child(ren).
b. Once, took into consideration the income of only the
noncustodial parent
i. Note – as the income rises, the percentage of payment
ii. Used less often because most parents have custody part
1. Would be appropriate if one parent only had
visitation rights
2. In many states, the liability for payment continues
based on the percentage
a. Windfall for other parent?
b. If you start out paying 20%, they will
continue to take 20% even if you
become Bill Gates
3. Melson Formula
a. Most complex – most fact specific of the three tests.
b. Underlying principles:
i. (1) every parent should be allowed to retain the minimum
amount that is necessary for their own basic needs and
continuation of their employment
ii. (2) until every child’s basic needs are covered, parents should
not be allowed to retain more than the minimum amount
necessary for their own basic needs.
iii. (3) if income is enough to cover the basic needs of both parents
and their dependents, children should be able to share in the
additional income and higher standard of living of their parents.
c. Only 4 states follow the formula – parents are entitled to
support themselves before having the formula applied
i. Not going to apply to indigent parents.
iii. What Counts as Income?
1. Kraisinger v. Kraisinger
a. Facts – husband and wife had four children prior to divorce.
Husband was paying $2,000/month in child support and the
mortgage payment of $2,393.45. Wife and children still lived in the
home. Wife filed a petition to increase child support as she stayed
home to take care of the children. Court applied the nurturing parent
doctrine to permit her to stay home with the children unless the
youngest child was old enough to go to school. Husband appealed.
b. Issue – must the earning capacity of a parent who elects to stay
home with a young child be considered when calculating child
c. Holding/Reasoning:
i. No, the nurturing parent doctrine recognizes that a custodial
parent who stays home and cares for a child does, in fact,
support the child.
1. Nurturing parent doctrine – excuses parent from child
support even if it is not their natural child
ii. Hearing officer noted that the parties made a conscious decision
to permit the wife to stay home while they were together and
concluded that wife should be afforded the opportunity to do
the same until the parties’ youngest child is in school full-time.
1. Husband may seek to revisit the issue when all of the
children are in school full-time.
d. Notes:
i. No penalty for support after the decision to stay home
1. Look at prior conduct
2. Have children in school full time before modification
ii. Know the nurturing parent doctrine for exam
1. If there is need, a court will require a parent get a job
and get daycare, but this doesn’t happen often
iv. Who is Responsible for Child Support?
1. Miller v. Miller – Equitable Estoppel
a. Facts – Wife filed for divorce and sought child support from
stepfather due to his actions causing the children to rely on him as
their natural father, to their emotional and financial detriment. The
children lived with mother/wife and stepfather throughout the
parties’ marriage. Stepfather claimed he was only their stepfather and
any legal relationship he had with the children terminated with his
divorce from there mother. Trial court held stepfather was equitably
estopped and was required to pay child support. Appellate court
affirmed because it found that stepfather had actively interfered with
the normal relationship between the girls and their natural father.
Natural father had gone to prison. After his release, he attempted to
visit the children and offered to contribute financially but stepfather
would not permit visitation or payment of support.
b. Issue – whether a stepparent can be equitably estopped from
denying the duty to provide child support for minor stepchildren
after divorcing their natural parent
c. Holding/Reasoning:
i. Stepparents’ duty to support stepchildren may extend in certain
1. Obligation arises by a voluntary assumption on the part
of the stepparent to support the children
ii. To establish equitable estoppel, claiming party must show that
the alleged conduct was done, or representation was made,
intentionally or under such circumstances that it was both
natural and probable that it would induce action. Conduct must
be relied on, and the relying party must act so as to change his
or her position to his or her detriment.
1. Stepparent must have made some representation of
support and the children must have relied on that
2. Party seeking equitable estoppel can demonstrate
detriment to the children by showing that the
stepparent’s conduct interfered with the third-party
natural parent’s support
iii. Third-party natural parent is the primary candidate for support
1. If the natural parent demonstrates he or she is not
receiving support from the other natural parent and
establishes by affidavit that stepparent’s conduct actively
interfered with support by natural parent, children
should be awarded pendente lite support from
2. Also, if natural parent cannot be found and his/her
unavailability is due to stepparent’s actions, stepparent
may have to provide support
a. However, in this case, mother knows
where the natural father is and has the
burden to bring him before the court to
seek child support
iv. Case remanded – trial court must determine whether the
children suffered any detriment to their future support as a
result of stepfather’s interference with the natural father’s
relationship with the children.
1. Stepfather required to pay temporary child support until
the trial court issues a decision
a. Stepparent may have a claim for
reimbursement against the natural parent
2. To obtain permanent support, mother must prove that
the facts support the application of the equitable
estoppel doctrine
d. Handler Concurrence/Dissent – record contains sufficient
evidence to demonstrate that equitable estoppel should be applied in
this case without remand.
i. If stepfather’s emotional bonding with the children contributed
or exacerbated the alienation of the children from their natural
father, may have material bearing on natural father’s failure to
support his children.
ii. Stepfather should remain paying child support unless and until
the natural father can be brought back into the picture
e. Notes:
i. Rule – equitable estoppel may justify support
1. Court warned that the doctrine be invoked cautiously
2. Discussion of in loco parentis duties – emotional
bonding is not enough
a. In loco parentis – in the shoes of the
3. Voluntary support should not be discouraged
a. Can encourage stepparents to pay child
ii. General rule – stepparent will not have to pay child support
1. Equitable estoppel – child relies on support
iii. Some states will consider a stepparent’s income when
calculating the income from an ex-bio parent
1. Oregon – sister married a man who had three children.
Man got primary custody and the married sister. Sister
became automatic stepmom. Bio mom was required to
pay child support. She filed something saying she should
have to pay less because stepmom has income and the
court agreed. Bio mom’s child support payments were
a. Only reason they could do that was
because sister was living with the children
and acting as stepmom.
v. When does the Responsibility End?
1. Solomon v. Findley
a. Facts – During the parties’ divorce, an agreement in which husband
agreed to provide educational funds to the best of his ability for his
children through college or until the child reaches the age of 25,
whichever comes first. The agreement was approved and
incorporated into the divorce decree. Wife filed suit to enforce the
degree, but the divorce court denied the request because the child
was beyond the age of majority and therefore the divorce court
lacked jurisdiction. Wife then filed a breach of contract action that
was dismissed by the trial court because the doctrine of merger
applied in the judgment and wife’s claim stemmed from the
b. Issue – may a parent pursue a claim for post-majority educational
support for a child in contract, rather than by enforcement of a
divorce decree that contains a provision for such support?
c. Holding/Reasoning:
i. Yes – divorce court only has jurisdiction over child support
until the intended recipient (child) reaches majority age.
ii. Post-majority educational support provision in a separate
agreement must have been intended to be a separate and
enforceable contract.
1. Penland v. Penland – contractual agreement was outside
the scope of the legal duty of support during minority.
Court held wife or daughters were entitled to enforce the
obligation by obtaining a money judgment as the
obligation matured.
2. McClain v. McClain – husband agreed to provide child
support and college education for each child. Court
stated where parties separate and by contract, as here,
settle the right of their minor children for support and
maintenance and such contract is approved by the trial
judge and made part of a final divorce decree, the trial
court will enforce the contract as made by them.
3. Gaddis v. Gaddis – court pointed out that parties will
often promise whatever they can to obtain a divorce and
then later try to scale down these promises. Husband
was not permitted to modify the decree .
a. Court stated that when the parties
voluntarily enter into a property
settlement whereby each gives
consideration for a promise of the other,
the resulting contract will be enforced.
iii. Here, child is no longer a minor, so the divorce court doesn’t
have jurisdiction. Wife must pursue the claim under contract.
1. Provision did not merge and is enforceable under a
contract claim. Case remanded
d. Notes:
i. Don’t want to sue for breach of contract – much better to have
the judge sign the agreement to add to the divorce agreement.
1. That way it will be enforced, and judge can hold the
breaching party in contempt for not complying.
ii. Courts lose jurisdiction of children at the age of majority unless
there is a special statute
1. Age for educational in Indiana – 19
a. If they’re going to college
iii. Domicile of the child is controlling – EXAM
1. Depends on if IA gives up jurisdiction and if the
other state accepts it because the child is domiciled
2. Typically, the state where the child is a resident that
accepts jurisdiction
iv. Itl’ Shoe – no controlling jurisdiction
1. Husband may argue minimum contact – no
minimum contact, state court cannot reach
husband in another state
2. If dad doesn’t have any ties in the new jurisdiction,
old state may be reluctant to give up jurisdiction
2. Curtis v. Kline
a. Facts – PA legislature enacted a statute that permitted courts to
order separated, divorced, or unmarried parents to contribute to their
children’s post-secondary educational expenses, even if the children
were over 18. Father and mother had three children, two of which
were in college. Father filed a petition to terminate his support
obligation as to two of his children and was given the opportunity to
challenge the constitutionality of the PA statute.
b. Issue – does the state statute violate the EPC?
c. Holding/Reasoning:
i. Rational basis review –
1. First, must determine whether the challenged statute
seeks to promote any legitimate state interest or public
value If so, must next determine whether the
classification adopted in the legislation is reasonably
related to accomplishing that articulated state interest(s).
ii. Statute begs the question of whether the legislature actually a
legitimate interest in treating children of separated, divorced, or
unmarried parents differently than children of married parents
with respect to costs of post-secondary education.
1. No rational basis for providing only certain young adults
the ability to recover post-secondary educational support
2. Shows the statutes arbitrary nature - A parent with two
children, one from a former marriage and one from a
current one, who does not wish to pay any college
expenses of those children could be forced to do so with
the first but not the second
iii. Not a suspect classification.
1. Classification is not rationally related to the legitimate
governmental purpose of avoiding difficulties
encountered by children of split families.
2. No rational reason to distinguish between children of
married households and children of divorced/split/nonmarried households – unequal treatment
d. Montemuro Dissent – the act’s intent was to assure children of
divorce they would not be deprived of the opportunity to acquire
post-secondary school education. Legislature’s intent was to remedy
the disadvantage that children of broken homes experience.
e. Notes:
i. Know the classification – classification of marital status
does not garner strict scrutiny (EXAM)
1. Court cannot step in and order married parents to send
their children to college
ii. Unconstitutional to treat married and unmarried parents
differently and to pose burdens on unmarried parents that
married parents don’t have
1. If there is an agreement, that is a different situation
a. Can be an oral agreement – both intended
to send their children to college
iii. Conclusion – no reason to treat poor children differently based
on marital status of their parents
vi. Rich Families
1. Smith v. Smith
a. Facts – Mother sought an increase in child support based on changes
in the parties’ incomes as well as the child’s expenses. Trial court
increased father’s payments from $460 per month to $4,300 per
month. The guidelines in effect didn’t provide a formula for a
monthly income higher than $15,000. The trial court determined the
amount of support by taking 9.15% of the parties’ combined monthly
income which amounted to almost $4,800. Father was ordered to pay
88% of that amount based on his share of the couple’s monthly
b. Issue – did the court err in modifying child support in excess of the
guideline caps?
c. Holding/Reasoning:
i. Modification is permitted, but the trial court abused its
discretion in setting the monthly support obligation far beyond
the amount prescribed by the child support guidelines.
ii. Three pony rule – no child needs three ponies, no matter that
the parents might easily afford them.
iii. Some consideration should be given to the child’s actual needs,
which may include consideration of the child’s lifestyle.
1. Courts may award higher child support if justified by the
specific needs of the child.
d. Notes:
i. Exam
1. BIC
2. 14th A – substantive due process – liberty – privacy –
right to procreate/right to marry/etc
a. May also include right to property or life
3. Drobac LOVES the constitution
a. 9th Amendment
b. 1st amendment
4. Sharktank prenup website
a. Takes you through the prenup process –
do it together
b. Problems – simone v. simone
i. Duress, not experienced, could
lead to more litigation
5. Nolo press – self help books such as how to create your
own will, do your own divorce, etc.
6. A lot on stuff in the news
a. Texas abortion law – check out oral
argument on Dec 1st
b. Build back better act – will it pass?
What will happen?
i. A ton of family law related
ii. Can contract around spousal support if it is unconscionable –
depends on jurisdiction
1. Can also determine child support and child custody;
however, judge and court retain jurisdiction to act in the
best interests of the child
a. If child support or custody isn’t in the
BIC, judge reserves the right to change it.
2. Judges will not change spousal support
iii. Three pony rule –
iv. Most courts will award children of wealthy family’s higher child
support, if justified by the specific needs of the child
1. Ex – fifi needs to continue violin lessons
v. Courts can consider parents status to afford greater
opportunities to children
vi. Different lifestyles (of mom and dad) could stress the children
d. Alternative Forms of Custody
i. Tender Years Presumption
1. Pusey v. Pusey
a. Facts – parties were married for 12 years and had two kids. During
an interview with the children, the older son stated he wanted to live
with dad while the younger son said he had an equal attachment to
mom and dad. The trial court awarded dad custody of the older son
and mom custody of the younger son with visitation rights for both.
Mom appealed and argued that she should have custody of both boys
based on the tender-years presumption.
b. Issue – is the tender years presumption unconstitutional?
c. Holding/Reasoning:
i. A gender-based presumption is improper, if not
1. Tender years presumption is no longer valid or necessary
in today’s society where gender roles are nonexistent.
ii. When considering the factors relevant to determining the BIC,
it is rare that all else will truly be equal in a custody
iii. Trial court did not abuse its discretion by awarding custody
based on the children’s preferences.
d. Notes:
i. Issue is tender years presumption – is it constitutional?
1. No – violates the EPC
a. No matter, it promotes outdated
i. EXAM – radar up for
discrimination and ethical issues.
Never know when something like
this is going to come up in
ii. Even if you don’t know how to
answer it, identify it – say I think
this is an
but I would have to investigate it
to address it
ii. EXAM: Tender years presumption – probably unconstitutional
1. UNLESS it is for another reason – religious, national
origin, etc.
ii. Primary Caretaker Presumption
1. Garska v. McCoy
a. Facts – 15-year-old becomes pregnant by her mother’s boyfriend.
Mother (teenager) didn’t receive any support from the father during
her pregnancy, but after she gave birth, father sent a package of baby
food and diapers. The baby became sick and needed considerable
medical attention that mother couldn’t afford so she signed a consent
form agreeing to the adoption of the baby by her grandparents so her
grandparent’s medical insurance would cover the baby’s medical
costs. Father filed a petition for writ of habeas corpus to obtain
custody of the baby. The trial court awarded father custody because
he was better educated, more intelligent, better able to provide
financial support and maintenance, and a better appearance and
b. Issue – In a custody proceeding, is there a presumption in favor of
the primary caretaker parent, if he or she meets the minimum,
objective standard for being a fit parent?
c. Holding/Reasoning:
i. There was no evidence to indicate that the mother was an unfit
parent and, consequently, no justification for the trial court to
remove custody from the primary caretaker parent and vest it in
a parent who had had no previous emotional interaction with
the child
ii. BIC are best served with their primary caretaker parent
1. To determine the primary caretaker, the court will
consider which parent performs general parental duties
such as feeding, bathing, dressing, taking the child to the
doctor, etc.
iii. Based on the record, it is clear that McCoy (mother) was the
primary caretaker seeing as she was willing to go as far as having
her grandparents adopt the child so he could get the medical
care he needed.
d. Notes:
i. Mom’s boyfriend got daughter pregnant
ii. Issue – custody/why a presumption?
1. Discussion of tender years doctrine – unconstitutional
2. Difficulty in determining parental fitness
a. Solomon syndrome – better parent
sacrifices custody of child for the BIC
i. Case referred to was in the Bible
– problem of separation of
church and state – 1st A
establishment clause
b. Court is likely using the reference as a
literary reference so that people
understand the concept, not that the bible
should control
iii. Difference between primary caretaker and psychological parent
1. Psychological parent – mother. She’s bonded with the
a. Primarily bonded parent
2. What about the nanny? Is a nanny a psychological
a. Yes, can be. However, cannot sue for
i. Nannies are paid employees.
ii. If it were someone doing it out
of the goodness of their heart
could try for custody
b. Forced labor? Child rearing and hiring
someone as a nanny
i. Not forced labor because it is a
natural duty
ii. Based on sex, race, nat’l origin –
iii. What was natural at the time of
the constitution was slavery – we
figured out that we were
iv. Be 100 years from now, will we
look back and say it was a natural
duty? Or look back and say it was
unconstitutional to work (childrear) without pay?
v. We pay soldiers, but not parents.
Parents are building our countries
3. Primary caretaker standard – will often see this in a BIC
analysis even if it is not a stated standard for the court
a. Who regularly bathes the child?
b. Who feeds the child?
2. Young v. Hector
a. Facts
b. Issue
c. Holding/Reasoning
d. Notes:
i. Father was a treasure hunter – searching for gold
1. Also goes to care for a sick relative
2. Who invested in the treasure hunting endeavor?
a. Mom’s parents – maybe they were just
gullible or he’s a better treasure hunter
than were giving him credit for
ii. Three factors favoring mom
1. Economic status
2. Consistency
3. Dad has anger issues
iii. Gender bias?
1. Possibly, but probably not
a. How can he be Mr. Mom if he had a
nanny picking the children up and taking
care of the kids?
iv. Why are these people in debt?
1. You make more you spend more
a. They had multiple homes and a nanny
i. Used to have a home caretaker, a
cook, and a nanny
e. Regulation of Families Created by Sexual Conduct/Nonmarital Parents
i. Equality and Liberty Interests
ii. Stanley v. Illinois
1. Facts –
2. Issue –
3. Holding/Reasoning –
4. Notes:
a. Dad loses custody of the kids
i. Wouldn’t happen today because of this case
b. Level of review?
i. Intermediate scrutiny – gender discrimination
1. Quasi-suspect class
2. They took the kids away from dad because under IL law,
the children of unwed fathers become wards of the state
upon the death of the mother
3. Dad’s interest is SUBSTANTIAL
ii. In the following cases, the court is very unclear about their
standard of review.
1. They use wishy washy language
2. Frustration that the court hasn’t clearly defined the
standard to be used with respect to the right to raise a
i. Unwed fathers v. unwed mothers
ii. Legal v. biological relationship
1. Even if you take a formal definition of family, it will still
have Stanley as the father
iii. Legal line drawing
Liberty Interest
i. Care of children
Procedural Due Process
i. Fathers were not given a hearing.
1. Stanley didn’t get notice in his hearing as to why the
children were being removed
2. He wasn’t given an opportunity to be heard
9th Amendment
i. Just because its not in the constitution doesn’t mean it doesn’t
1. Just because the constitution doesn’t explicitly give
parents the right to raise their children doesn’t mean it’s
not protected
i. Father who has raised a nonmarital child (manifests certain
indicia of parenthood) has a substantial interest in that
1. Constitution recognizes higher values than speed and
efficiency which was the reason they took Stanley’s
a. Can’t just remove the children if parent
has demonstrated they’re the parent
ii. Right to a hearing doesn’t mean you’re going to get custody
1. Indicia of parenthood
a. Ex – takes care of the child, picks child
up from school, bathes child, feeds father,
Conclusion – father didn’t have an attorney
i. When did Stanley start winning?
1. Former legal services officer agreed to represent him for
the appeal
2. As a result, trial court dropped the charges
3. Didn’t start winning until he got a lawyer –
a. Parents don’t know their
b. Critical that someone who is about to
lose their children has counsel to
explain that to the parent
iii. Lehr v. Robertson
1. Facts –
2. Issue –
3. Holding/Reasoning:
4. Notes:
a. Does the biological, nonmarital dad have a right to notice before
i. Mom was basically hiding from him.
1. She disappeared after the hospital (from the dissent)
a. A lot more details in the dissent because
they have to make their case as to why
they would rule differently
b. Rule
i. No, not when he does not establish an indicia of parenthood.
1. Mom is saying one thing and dad is saying another
2. He was providing for mom while she was pregnant –
caring for the mother is an indicia of parenthood
3. He also tried to find them, but mom didn’t want him to
find them
a. May be that he is a bad guy
b. May also be that he is a disfavored person
by the court
c. Lehr sues to establish paternity
i. Judge who signed the order for the adoption knew that Lehr
was trying to get custody of his own child and signed it anyway
1. Why would the judge do that?
a. BIC
b. Problem? Biological father who wants to
be involved. He should be given an
opportunity to take care of the child
i. Cite Stanley and 14th A, liberty
d. EXAM – procedural DP (right to notice, hearing and cross) and
substantive DP (liberty, privacy, right to rear children)
i. Notice – in many jurisdictions, the biological parent is entitled
to notice of an adoption
1. Problem – people don’t know about the putative registry
e. Procedural DP issue – no hearing again
f. Who committed malpractice in this case?
i. Dad’s lawyer – didn’t put him on the registry
ii. Lawyer should have put him on the registry as soon as he walks
into the office even if there is a 30-day limit
1. Do it right then because dad didn’t know about the 30day limit, but the court may consider exigent
circumstances to place him on there.
a. Might also be shot down, but it is worth
g. Lawyering and Judging were problematic
i. Dad’s lawyer – should have put him on the putative registry.
Drobac considers this as malpractice.
ii. Mom’s lawyer – lawyer knew that father was out there but
didn’t do anything to find out more about him or who he was.
Likely should have searched for dad, but he was acting in the
best interests of his client
iii. Judge – he knew dad was out there and that he had filed a
paternity case, but signed adoption papers anyway. Didn’t look
into it at all.
1. A big problem unless dad was the scum of the earth and
the judge had a reason for signing the order anyway
h. Activation of parental rights
i. Functional/Formal – this goes to the heart of the formal
definition of marriage.
1. Building law on history and tradition is problematic
because you are building on quicksand, but if you have
legal precedent, you have a stronger foundation.
ii. Sex discrimination? Seems like it. Seems like bias against dad
and bias for mom
1. Maybe the tender years presumption and mom gets to
choose who gets to be dad.
iii. Ignorance
1. No excuse of the law but we should have compassion
for people who don’t have the education others do.
i. Exam – references to the bible are fine as long as it is for the literary
value/an analogy is like commenting on a famous movie.
i. If you are throwing it out for a greater understanding of a
concept, that is fine.
ii. However, if you are using the bible as the law itself, you
CANNOT do that.
j. EXAM – Drobac will identify the issue, the case, or line of reasoning
and the point value and compare everyone’s answer
i. Know 1st A and uniform partnership act
1. Exam based on LAW
iv. Michael H. v. Gerald D.
1. Facts – Carole, a model, and Gerald D., an oil executive, were married. A
few years later, Carole had an affair with Michael H. Shortly after, she had a
child, Victoria. Gerald was listed as the father on the birth certificate and
held Victoria out to the world as his daughter. However, Carole told
Michael she believed Victoria may be his child. Victoria remained with
Carole who bounced around to different households with different men.
They resided with Michael H. for a while and the pair obtained a blood test
which showed a 98% chance that Michael was Victoria’s father. A few
months later Carole left Michael, took up residence with a third man, Scott,
and then returned to Gerald for the summer. They returned to Scott in the
fall. Michael filed an action to establish his paternity and right to visitation
after being unable to see Victoria. He withdrew the case after Carole started
seeing him again and signed an agreement stipulating that Vicotria was their
daughter. Carole later returned to Gerald and instructed her attorneys not
to file the stipulation. Michael brought another suit in which Gerald
intervened and moved for SJ on the ground that there were no triable issues
of fact. The CA Superior Court granted Gerald’s SJ and rejected Michael’s
motion for continued visitation. Michael claimed that the law at issue
denied him an opportunity to establish paternity and violated his 14th
Amendment due process rights.
2. Issue – whether Michael and Victoria’s relationship has been treated as a
protected family unit and therefore protected by the constitution.
3. Holding/Reasoning:
a. No, history and tradition has protected the marital family against the
sort of claim Michael asserts.
b. In a traditional family unit, a strong presumption exists that any child
born into a family is born of the husband and wife unless the
husband is unable to have children or had no access to his wife
during the relevant period.
c. Nothing in history that addresses the specific power of a natural
father’s right to assert parental rights over a child born into a
woman’s existing marriage with another man.
i. We are not talking about a fundamental right here.
4. Brennan Dissent
a. The plurality does not ask whether parenthood has been historically
protected, instead, they ask whether the specific variety of
parenthood under consideration has enjoyed constitutional
i. If we looked to specifics in prior cases, most decisions would
have had a different outcome
1. No specific interest protecting contraceptives
2. No specific interests protecting the right to raise one’s
natural but illegitimate children…etc.
ii. Plurality squashes the freedom not to conform by requiring
specific approval from history before protecting anything in the
name of liberty
iii. Majority acts as if the only purpose of the DPC is to conform to
the importance of interests already protected by a majority of
the states
1. This mocks those who wrote the 14th Amendment
b. The original reason for the presumption was uncertainty of paternity,
which has since been significantly reduced as blood tests can prove
conclusively who is the child’s biological father.
5. Notes:
a. Buzz words for dad’s parental rights – full commitment and indicia
of parenthood
ii. Ex – bathing the child, feeding the child, etc.
1. Any kind of caregiving
b. Presumption of legitimacy – child born into a family is born of the
husband and wife unless the husband is unable to have children or
had no access to his wife during the relevant period
i. Not needed anymore because we have DNA testing
ii. Ex – gay/lesbian couples adopting a child. Sperm donors want
to come back into the child’s life.
1. You are at risk if you have a child without contractual
paperwork that says the sperm donor is only a donor,
not a dad.
2. Most fertility clinics will not do an insemination without
iii. IN is different – they will not enforce surrogacy contracts
1. Do not do it in Indiana. You could lose your child even
after birth.
c. Intermediate scrutiny or rational review
i. suspect classification based on sex or 14th A substantive DP
1. Substantive DP – liberty – privacy – right to
raise/control children
a. It is not clear – if you get something
like this on the final Exam,
acknowledge that it hasn’t been clear
and pick what you think is more
appropriate and why
d. Sometimes precedent doesn’t get you from point A to point B due to
advances in technology, society, evolution, etc.
i. Be careful of ripple effects.
ii. Unitary family
1. Not always true – families used to be extended
2. Society changes to mom, dad, dog, and children
iii. Basic values that underlie our society also change and must be
considered with the law
e. 14Th Amendment
i. EPC – nonmarital status as a dad and men’s rights issues
1. Rare that women lose all custody with their children
ii. Liberty
f. Parent may challenge but must do in a specific period of time
g. Brennan Dissent
v. Troxel v. Granville
1. Facts – Granville and Troxel never married but had two daughters. The
parties separated and dad moved in with his parents. A few years later, dad
committed suicide. Mom first continued to allow the children to visit with
their paternal grandparents on a regular basis but then notified them that
she wished to limit visitation to one short visit per month. Grandparents
commenced this action to obtain visitation rights. Superior court entered a
visitation decree ordering visitation of one weekend per month, one week
during the summer, and four hours on both of the grandparents’ birthdays.
Case was appealed and remanded. On remand the Superior Court found
that visitation was in the children’s best interest.
a. Grandparents were part of a large, central, loving family, all located in
the area. Grandparents and family can provide opportunities for the
children in the areas of cousins and music.
b. The court held that the children would benefit from spending quality
time with the grandparents provided that the time is balanced with
the time spent with their nuclear family.
c. Nine months later, Mom’s new husband formally adopted the girls.
As a result, grandparent’s petition for visitation was dismissed under
a WA statute that states nonparents lack standing to seek visitation
unless a custody action is pending.
d. WA superior court granted visitation rights, but the WA supreme
court reversed and held that the statute unconstitutionally infringed
on the fundamental rights of parents to rear their children.
2. Issue – whether the WA statute was unconstitutional
a. Do grandparents have statutory standing under WA law?
3. Holding/Reasoning:
a. Statute is unconstitutional. Though a number of states have adopted
nonparental visitation statutes, they come with obvious costs.
i. State’s recognition of an independent third-party interest in a
child can place a burden on the traditional child-parent
ii. Liberty interest at issue in this case is the interests of
parents in the care, custody, and control of their children
1. Perhaps the oldest of the fundamental liberty
interests recognized by the court
2. Know for exam
b. The WA statute is too broad
i. Doesn’t give special weight to Mom’s determination of her
children’s best interest.
ii. Instead, the statute places the BIC determination solely in the
hands of the judge.
1. If the judge disagrees with the parent’s determination of
the child’s best interests, the judge’s view will prevail.
2. Meaning, a court can disregard any decision made by a
fit custodial parent concerning visitation.
c. Supreme court did not base their decision on any showing that Mom
was an unfit parent or that she sought to cut off visitation
i. Instead, she seeks to limit visitation because she believes it is in
the best interests of her own children.
ii. Courts must accord at least some special weight to a parent’s
own determination.
4. Stevens Dissent - The child’s interests and opinion should be taken into
account as they are implicated in every case to which the statute applies.
i. No doubt that parents have a fundamental liberty interest in
caring for and guiding their children without the undue
interference of strangers to them and their children.
ii. However, even a fit parent is capable of treating a child like a
mere possession
iii. Parent’s rights have never been absolute, but they are limited by
the existence of an actual, developed relationship with a child,
and are tied to the presence or absence of some embodiment of
1. Children also have a liberty interest in preserving
intimate relationships. Their interests must be balanced
into the equation.
5. Scalia Dissent 6. Kennedy Dissent 7. Notes:
a. WA statute was unique – petition for visitation could be brought by
any person at any time
i. Extremely unusual for SCOTUS to get involved in custody
cases – family law is state driven; feds don’t want to get
ii. Standards – BIC
1. How is mom going to prove it isn’t in the children’s best
interest to see the grandparents?
2. Also, constitutional rights of parent re children – liberty
a. Harm standard – WI v. Yoder (EXAM)
i. Amish – children’s right to
education. Free exercise of
religion would not be constrained
unless it would actually cause
harm or substantial threat of
ii. Actual/potential harm being
iii. Conflict?
1. Right to raise your children
2. 14th – substantive DP, liberty, privacy, fundamental right
of parents to control and raise their children
iv. Oldest fundamental right – should be strict scrutiny, but there is
some dispute as to which level of review should be used
1. If you are confused, good. Court is not clear
a. Court gets out of it by saying
b. Analysis
i. Fundamental right of parents to care, custody, and control of
their children
ii. Breadth – allows third parties to trump the rights of fit parents
1. Problem – nanny, stepparent, or grandparents can come
in and overrule a fit parent’s decision.
a. States have been sympathetic to
grandparents whose children have died so
their only remaining ties to their deceased
child are through their grandchildren
b. Grandparents can win as long as the state
statute is not overly broad
iii. Idea that children do not have a 14th A right is somewhat
1. Best interests but no relationship with your parents?
a. Can’t see your bio dad (Michael H.) or
grandparents (Troxell)
2. If you do not have representation or a strong political
representation, you don’t necessarily have rights.
a. No one to fight for those rights for you
b. See Stanley v. IL
iv. Right of parents – parents have a right to their children, but
children do not have a right to their parents
1. Michael H.
Visitation/Parenting Time
i. Drobac’s Highlights
1. UMDA 407 – Visitation
a. “Would endanger seriously” – actual harm standard
i. Palmore v. Sidoti
b. Modification when it would serve BIC, but court shall not restrict
parent’s visitation unless child would be endangered
i. Not controlling anywhere unless its been adopted
ii. Introduction
1. UMDA on Visitation
2. Roberts v. Roberts
a. Notes:
i. Modification – will be permitted if it advances the compelling
state interests in protecting children in the least restrictive
means and to be constituent with father’s free exercise
1. Strict scrutiny – yes dad has rights, but it is hurting the
a. Courts do not like it when one parent is
trying to undermine the other
i. Any type of undermining is
frowned upon
ii. For modifications, must be
changed circumstances that are
hurting the children – want to see
detriment to the children
b. They will give custody to the parent who
fosters a relationship with the other
iii. Modification
1. UMDA on Modification
a. Child’s present environment may endanger seriously his physical,
mental, moral, or mental health
2. Rose v. Rose
3. Smith v. Smith
iv. Relocation
1. Bisbing v. Bisbing
v. Third Parties
1. In re Marriage of DePalma
2. Simons by & through Simons v. Gisvold
3. Edwards v. Edwards
4. Conover v. Conover
5. Dawn M. v. Michael M.
6. Stepparent Exam question
a. Simply because court may award visitation to stepparent does not
mean stepparent will have to pay child support
i. Know UMDA
ii. Know standard for modification and visitation
1. Probably MC question