A Review of the Year in Family Law
2012-2013: A Banner Year for Same-Sex
Couples
LINDA D. ELROD* & ROBERT G. SPECTOR **
I. Introduction
The United States Supreme Court heard three significant family law
cases this year. The most-discussed, United States v. Windsor, struck portions of the Defense of Marriage Act (DOMA) thereby allowing same-sex
married couples to obtain federal benefits given to spouses. I Another
Supreme Court case interpreted the application of the Indian Child Welfare
Act to an out-of-wedlock child and a third examined whether a return order
made an appeal moot under the Hague Convention on the Civil Aspects of
International Child Abduction. Federal courts continued to interpret the
Hague Abduction Convention as to defining habitual residence and defenses to return as well as hearing bankruptcy, ERISA, and tax cases.
While state cases ran the predictable course in the usual topics, this
year some areas saw more activity than before. For example, a large number of cases discussed alternative dispute resolution, surrogacy contracts,
same-sex parenting issues, and jurisdiction to grant a divorce. There
seemed to be fewer cases in the areas of premarital agreements, factors for
child custody, income for child support, and torts.
* Richard S. Righter Distinguished Professor of Law, Washburn University School of
Law, and Editor of the Family Law Quarterly since 1992.
** Glenn R. Watson Chair and Centennial Professor of Law Emeritus, University of
Oklahoma and Associate Editor of the Family Law Quarterly.
1. United States v. Windsor, 133 S. Ct. 2675 (2013). Same-sex marriage is now available in
California, Connecticut, Delaware, D.C., Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts,
Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and
Washington. Cases in Oklahoma, Utah, and Virginia are on appeal in federal courts. See Kitchen
v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013).
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II. Federal CourtslLaws
A. Defense of Marriage Act
[N]o legitimate purpose overcomes the purpose and effect to disparage and to
injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.2
The United States Supreme Court made that statement in its first samesex marriage decision striking section 3 of DOMA, 1 U.S.c. § 7 in a case
involving estate taxes. After the death of her same-sex spouse whom she
had married in Canada, Edith Windsor sought to claim the federal estatetax exemption for surviving spouses. Because DOMA section 3 excluded
her same-sex partner from the definition of "spouse," Edith paid the
$363,000 tax and then filed suit in federal district court seeking a refund
and challenging the definition of marriage in DOMA as unconstitutional
on due process and equal protection grounds. The Department of Justice
elected not to defend. The federal district court and the court of appeals
found section 3 to be unconstitutional. The Supreme Court agreed. Justice
Kennedy, in a five-to-four decision, noted that under principles of federalism, the domestic relations law of husband and wife traditionally has
been reserved to the states. New York, the state in which the couple lived,
recognized the Canadian marriage resulting in the couple being married
under state law and unmarried under federal law. The majority found that
the essential purpose of DOMA was to interfere with the dignity of samesex marriages. DOMA identified a subset of state-sanctioned marriages
and made them unequal, depriving those families of more than 1,000 federal rights, benefits, and responsibilities. The resulting injury constituted
a deprivation of a liberty interest protected by the Fifth Amendment, and
violated basic due process and equal protection principles. The decision
left intact the other part of DOMA, which provides that states do not need
to give full faith and credit to marriages from other states that are not
between a man and a woman. 3
The United States Supreme Court in a second same-sex marriage case
found that proponents of California's Proposition 8 had no standing to
appeal the federal district court's judgment, which found it unconstitutional. The Court dodged the larger issues as to whether there could be an
equal protection challenge to the state marriage laws, whether there is a
fundamental right for same-sex couples to marry, or to the level of scrutiny required for sexual orientation-based classifications. 4 It left intact the
federal district court's ruling that Proposition 8 was unconstitutional.
2. Id.
3. Id.
4. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
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507
The constitutionality issues are being played out in federal district
courts across the country. By the end of the year, same-sex couples could
marry in eighteen states and the District of Columbia. On the basis of
Windsor, federal courts in Oklahoma, Utah, and Virginia have struck state
laws barring same-sex marriage as a violation of equal protection. New
Mexico determined its law was gender neutral and thus it would allow
same-sex marriages; and New Jersey found its civil union law denied
same-sex couples equal protection because they could not get federal
benefits from a civil union, only a marriage. 5
B. Hague Abduction Convention
The United States Supreme Court handed down a unanimous decision
that a father's appeal from a federal court's return order under the
International Child Abduction Remedies Act (ICARA), directing the
child's return to Scotland, was not moot even though the mother and child
had returned to Scotland. 6 The father's prospects for obtaining are-return
order went to the merits and were not pertinent to the mootness inquiry.
The Chafin ruling allowed the court to review the lower court's decision
that Scotland was the child's habitual residence. At the hearing, the lower
court's decision to return the child to Scotland as the place of habitual residence was found to be proper. 7
1. HABITUAL RESIDENCE
Habitual residence is a practical way of returning a child to the country
where the child customarily lives. The term is not equivalent to the
American legal concept of family, which relies primarily on intent. The
petitioner has the burden of establishing by a preponderance of evidence
of a child's habitual residence at the time of contested removal. s When
parents move temporarily to another country without agreeing to change
the child's principal residence, the parent claiming the new location must
show the child has acclimated. 9 Where shared intent is determinative, a
family's intent to move to the United States when the father's residency
5. Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct. Law Div. 2013); N M
Griego v. Oliver, 316 P.3d 865 (N.M. 2013).
6. Chafin v. Chafin, 133 S. Ct. 1017 (2013).
7. Chafin v. Chafin, 742 F.3d 934 (lIth Cir. 2013).
8. Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012).
9. Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) (finding parties' settlement agreement
showed shared intent to live in United States, father did not prove mother agreed to settle in
Italy, and the child had acclimated). See also Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)
(finding the parties' children's habitual residence was Canada, because the children had not
acclimated to their new location in New York); Headifen v. Harker, 2013 WL 2538897 (W.D.
Tex. June 7, 2013) (unpublished) (finding Texas was child's habitual residence where there was
no shared intent to stay in New Zealand even though parties had been there since 2009).
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ended to earn more money meant that when the mother moved with the
child, habitual residence shifted from Italy to the United States. 1O A
child's habitual residence shifted to England when the child lived with her
parents for fourteen months prior to the mother's removal of the child
back to Puerto Rico. II Even in circuits that prioritize parental intent, the
last shared intent does not always determine habitual residence. 12 In the
Sixth Circuit, the intent of the parents is not usually relevant to a determination of habitual residence. 13
2.
RIGHTS OF CUSTODY
A father who resided in Turkey petitioned for his children who lived in
the United States with their mother to be brought to Turkey for courtordered visitation. The father retained custody rights under Turkish law,
and the children had been wrongfully removed. ICARA created a federal
right of action to secure the effective exercise of rights of access. 14
Mother's removal of children from Switzerland did not revoke any custody rights that father retained at time of removal. Mother had sole right
to remove under governing court order. Mother had legitimate reasons to
come to the United States. IS
A federal district court, applying the law of England, found that the
English court would apply Puerto Rican law to determine whether the
father had a right of custody.16 An Australian father did not clearly and
unequivocally abandon his children at the time of their allegedly wrongful retention in the United States because he kept regular contact with the
children by speaking to them weekly and sought to secure custody and
10. Prouse v. Thoreson, 2012 WL 5199182 (W.D. Wis. Oct. 22. 2012) (unpublished).
11. Patrick v. Rivera-Lopez, 2013 WL 708947 (D.P.R. Feb. 26, 2013) (unpublished) (noting that the mother had obtained a relocation order from a local court in Puerto Rico so that the
child's stepbrother could accompany the family to their new home).
12. Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (noting that although American
mother and Irish father agreed their son would be raised in Ireland, Illinois was son's habitual
residence where he had lived all but seven and a half months in infancy). See also Aly v. Aden,
2013 WL 593420 (D. Minn. Feb. 14, 2013) (unpublished) (finding child's habitual residence
was the United States, even though born in Belgium).
13. Selo v. Selo, 929 F. Supp. 2d 718 (E.D. Mich. 2013) (finding the child's eighteen-month
stay in Michigan turned that state into the child's habitual residence). See also Jensie v. Jensie,
2012 WL 5178168 (E.D. Ky. Oct. 18,2012) (unpublished) (mother's decision to relocate to the
United States from Sweden following her divorce did not affect the determination that the
child's habitual residence was in Sweden).
14. Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013).
15. White v. White, 718 F.3d 300 (4th Cir. 2013) (not ordering return). See also E. Sussex
Children's Servo V. Morris, 919 F. Supp. 2d 721 (N.D. W. Va. 2013) (twelve-year-01d's
habitual residence was United Kingdom, so child should be returned to Social Service Agency
exercising rights of custody).
16. Patrick V. Rivera-Lopez, 708 F.3d 15 (lst Cir. 2013) (finding that when the parents married after the birth of the child, the father had a right of custody).
A Review of the Year in Family Law
509
visitation when first learning the mother intended to file for divorce. I?
3.
DEFENSES
a. One year and well-settled
One of the hot button issues under the Hague Abduction Convention is
the issue of tolling. If one parent hides a child from the other for long
enough, can he or she take advantage of the well-settled defense?
Granting certiorari from a Second Circuit decision, the United States
Supreme Court has agreed to address whether a district court considering
a petition for the return of an abducted child may equitably toll the running of the one-year period associated with Article 12's "well-settled"
defense when the abducting parent has concealed the whereabouts of the
child from the left-behind parent. 18 Some circuits have rejected equitable
tolling. 19 The Eleventh Circuit, however, found the one-year period in
Article 12 is subject to tolling so that a mother who hid the child from the
father since her arrival in Florida in 2011 cannot take advantage of the
defense. 2o
In one case, a court determined that the children were "well settled"
in their father's residence in the United States despite the father's unsettled immigration status because the mother delayed in filing a petition for
return of the children for more than one year. By that time, the children
had resided with their father for more than two years in the same residence, had strong bonds with their teachers, and had made significant
progress in their educations. 21 Another court denied a fifteen-year-old
child's return to Hungary filed eighteen months after she was removed to
the United States. The child was well settled, doing well in school, had
good family relations, and was of sufficient age and maturity that the court
could take into account her views and objections to return. 22
17. Walker v. Walker, 701 F.3d 1110 (7th Cir. 2012).
18. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), aff'd by 2014 WL 838575 (2013) (also
deciding that a child's illegal immigration status in the abducted-to country did not bar finding
that the child was now settled).
19. See Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013) (as a matter of first impression, oneyear period associated with now settled defense was not subject to equitable tolling); MatasVidal v. Libbey-Aguilera, 2013 WL 3995300 (D. Utah Aug. 5, 2012) (unpublished) (finding
that equitable tolling did not apply even though the mother hid children from the father for over
two years).
20. Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D. Fla. Dec. 10,2012)
(unpublished).
21. Aranda v. Serna, 911 F. Supp. 2d 601 (M.D. Tenn. 2013).
22. In re D.TJ., 956 F. Supp. 2d 523 (S.D. N.Y. 2013).
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b. Grave risk of harm or intolerable situation
In a comprehensive opinion discussing the Article 13(b) defense, the
Second Circuit concluded that it did not apply to a child taken by his
mother from Singapore, notwithstanding prior instances of father's abuse
of the mother. The child expressed unqualified love for both parents; the
father had honored all custody orders issued by the Singapore courts; and
there was no showing that the father ever physically disciplined the child,
or that the child witnessed any spousal abuse, or that the child would likely lose his mother upon repatriation. 23 On the other hand, a grave risk was
found where the eight-year-old child witnessed the mother having sex,
was left alone, slept in bed with mother and her boyfriends, and her baby
sister died from smoke inhalation from a fire pit mother lit in the house. 24
Clear and convincing evidence showed that the father's inability to control his temper outbursts presented a significant danger that he would act
irrationally toward himself and his children, exposing the children to a
grave risk of harm were they returned to Peru. The father did not show
that an undertaking could be imposed sufficient to protect the children. 25
A father's membership in an Israeli community that condones
polygamy and considers women subservient to men is not a basis for
denying his petition for his daughter's return. 26 A court rejected a mother's claim that the child would be placed in an "intolerable situation" if
returned to Mexico because of drug trafficking activity in the proximate
location of the family's home, because she failed to show how the child
would be personally threatened or in immediate danger if returned. 27
4.
ATTORNEY'S FEES
The fact that the prevailing petitioner's attorneys were employed by a
legal aid entity did not preclude an award of attorneys' fees to the petitioner. The court found ICARA's fee-shifting provision did not in any
way limit the scope of entities that could recover under it, and there was
no indication that Congress intended to cut off legal-aid entities. 28 In a
23. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013).
24. Londres v. Mateo, 2013 WL 1741979 (W.D. Tex. Apr. 23, 2013).
25. Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013) (noting there was evidence the father
assaulted a taxi driver in the children's presence, verbally abused the mother in their presence,
and shoved one of the children).
26. Walker v. Kitt, 900 F. Supp. 2d 849 (N.D. Ill. 2012) (finding return would not place her
in an intolerable situation and rejecting an Article 20 defense because return of the child would
not utterly shock the conscience of the court or offend all notions of due process).
27. Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D. Fla. Dec. 10,2012)
(unpublished). See also Rovirosa v. Paetau, 2012 WL 6087481 (S.D. Tex. Dec. 10, 2012)
(unpublished).
28. Saldivar v. Rodela, 894 F. Supp. 2d 916 (W.D. Tex. 2012). See also Geiger v. Herback,
2012 WL 5994935 (D. Minn. Nov. 30,2012) (unpublished).
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511
remand from the Second Circuit, the court found that the mother had
maintained an objectively reasonable legal position throughout the case
and had noted concerns that by bringing a Hague action, rather than filing
a proceeding in a Turkish court, the father may have been forum shopping. After reviewing various Turkish court orders issued prior to the
father's Hague action, the district court determined that mother had a reasonable basis for believing she could remove the children from Turkey
without his consent. "[A]lthough such a mistake of law was not a defense
to the return action itself, it is 'a relevant equitable factor,' when considering whether a costs award is appropriate."29
C. Indian Child Welfare Act (ICWA)
The United States Supreme Court heard the first ICW A case since
Mississippi Band of Chocktaw Indians v. Holyjield 30and limited the applicability of the Indian Child Welfare Act (ICWA).JI ICWA provides that
if a child is eligible for enrollment or membership in a Native American
tribe or is enrolled, notice must be given to the child's tribe of any termination of parental rights or adoption proceedings. The tribe could then
intervene and, based on placement preference priorities of ICW A, make a
claim for placement of the child with tribe-selected adoptive placement.
In the case of a non-Indian, unwed birth mother texted the birth father,
who had Indian heritage, asking whether he wanted to pay child support
or relinquish rights. He chose the latter. After the child's birth, mother
placed the child who was 1.2% Cherokee (31256ths) with the adoptive
parents who had supported her throughout the pregnancy. When the
prospective adoptive parents filed a petition to adopt the child, the father
sought custody and to have the tribe intervene. In a five-to-four opinion,
the United States Supreme Court held the heightened burden under 25
U.S.C. 1912(f) (evidence beyond a reasonable doubt that continued custody of child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child) does not apply when the relevant parent never had custody of the child. The Court reasoned ICWA
was meant to counteract removal of Indian children from Indian families.
When a non-Indian parent with sole custodial rights voluntarily and lawfully initiates the adoption of an Indian child, "ICWA's primary goal of
preventing the unwarranted removal of Indian children and the dissolution
of families is not implicated."32 Similarly, the Court held subsection (d),
29.
30.
31.
32.
In re S.E.O. 2013 WL 4564746 (S.D. N.Y. Aug. 28, 2013).
490 U.S. 30 (1989).
Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).
Id. at 2561-62.
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referring to the "breakup of the Indian family," does not apply when the
parent abandoned the Indian child before birth and never had custody of
the childY
The dissent countered that the statutory language in subsections (d) and
(f) should be interpreted as part of the whole, rather than focusing on a
single phrase. In addition to the goal of avoiding the removal of children
from Indian families, § 1901 (3) notes "there is no resource that is more
vital to the continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe."34 The dissent argued that to focus on intact families begs the question of what Congress set out to accomplish with ICWA
and reserves ICWA's substantive protections for only those families that
fit the majority's custodial-parent mold. Though never referred to in the
majority opinion, its rationale resembles the "existing Indian family" doctrine, which several states used until the last five years. 35
Alaska determined that ICWA preempted its adoption rules. After a
mother's parental rights were terminated, ICW A required placement
of the child with a family member unless there was clear and convincing
evidence for departing from ICWA preferences. 36 Arizona found good
cause to deviate from the ICW A adoptive placement preferences in favor
of a non-Indian foster family with whom the child had bonded and who
would expose the child to his Navajo culture. 3? South Dakota found that
the Department of Social Services provided sufficient "active efforts" to
both the incarcerated and nonincarcerated parent to justify terminating his
parental rights to the Indian children. 38
D. Bankruptcy
A bankruptcy debtor's adoption tax credit for special needs children
was a refundable tax credit and exempt as a form of public assistance. 39 A
33. Id. at 2562-64.
34. Id. at 2572-73, 2584 (Sotomayor, J., dissenting). Joining in the dissent, Justice Scalia
argued further "continued custody" in subsection (f) could also refer to custody in the future and
that this connotation is much more in accord with the rest of the statute. Id. at 2571-72 (Scalia,
J. dissenting).
35. The existing Indian family doctrine was started in In re Adoption of Baby Boy L., 643
P.2d 168 (Kan. 1982). In 2009, the Kansas Supreme Court expressly overruled the case and
found the doctrine to be at odds with the clear language of ICWA, which makes no exception
for children with one non-Indian parent, and tribal interests in preservation of their most precious resource, their children, drove passage of ICWA. In re A.J.S., 204 P.3d 543 (Kan. 2009).
36. Native Village of Tununak v. State, 303 P.3d 431 (Alaska 2013).
37. Navajo Nation v. Arizona Dep't of Econ. Sec., 284 P.3d 29 (Ariz. Ct. App. 2012).
38. In re S.H.E., 824 N.w.2d 420 (S.D. 2012).
39. In re Johnson, 480 B.R. 305 (Bankr. N.D. Ill. 2012).
A Review afthe Year in Family Law
513
former husband who did not have a regular source of income did not qualify for Chapter 13 bankruptcy so could not discharge divorce debts.40
Chapter 13 debtor's ex-wife brought adversary proceeding to except debt
from discharge and judgment on defalcation claim. Court found that no
marital trust relationship is established at the time of marriage under
Washington law. Although ex-husband debtor unilaterally liquidated and
spent funds from community account other than for support of the community around the time of separation, it did not constitute "defalcation."41
Questions continue to arise as to what constitutes a domestic support
obligation (DSO). Courts found the following to be DSOs and nondischargeable: the husband's payment of the line-of-credit-debt, which was
in part for the wife's benefit;42 a man's obligation in his divorce decree to
make monthly payments to compensate his ex-wife for half of their total
debt, which she paid off in their joint bankruptcy filing during their marriage;43 and money that a mother owes to a state social services agency to
reimburse it for foster care provided to one of her children. 44 A debtor's
obligation to pay a portion of his pension benefits to his ex-wife was not
a DSO, but was in the nature of a property settlement. The pension settlement remained his property, was part of his bankruptcy estate, and was
dischargeable upon completion of his Chapter 13 plan. 45 In another case,
a woman's divorce-related obligation to pay a portion of her ex-husband's
federal income. taxes was not automatically discharged in her bankruptcy
proceeding because a divorce debt is not automatically discharged in
bankruptcy and payments to third parties can be a divorce debt. 46
E. ERISA and Federal Pension Issues
The parties' agreement to divide the husband's Tier 1 railroad retirement benefits is unenforceable because parties may not agree to divide
that which federal law says is not divisible. 47 A couple of cases dealt with
waiver of rights and designation of beneficiaries. Under ERISA, the rights
of the surviving spouse of a 401(k) plan participant did not yield to the
participant's designation of his parents as beneficiaries. The premarital
agreement between the participant and his then-wife was ineffective to
40. In re Loomis. 487 B.R. 296 (Bania. N.D. Okla. 2013).
41. In re Mele, 501 B.R. 357 (B.A.P. 9th Cir. 2013).
42. Henderson v. Henderson, 389 S.W.3d 260 (Mo. Ct. App. 2012).
43. In re Fitch, 2013 WL 3005217 (Bania. E.D. Ky. 2013) (unpublished).
44. In re Hernandez, 496 B.R. 553 (B.A.P. 8th Cir. 2013).
45. Steele v. Heard, 487 B.R. 302 (Bania. S.D. Ala. 2013).
46. In re Mason, 58 A.3d 1153 (N.H. 2012).
47. Dapp v. Dapp, 65 A.3d 214 (Md. Ct. Spec. App. 2013); Kelley v. Kelley, 2012 Ark.
App. 653 (Nov. 14,2012) (unpublished).
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waive her right to funds in that plan. Even if she waived her right to plan
funds, she did not acknowledge the effect, so her consent did not satisfy
the statutory acknowledgment requirement. 48
Federal law governing military and civil service retirement plans did
not preempt family court from ordering the designation of the wife as the
beneficiary of survivor's benefits under husband's plans. The language of
governing statutes expressly permitted court-ordered designation of
beneficiaries. 49 A deceased pension plan participant's daughter is not entitled to survivorship benefits because the participant's husband, whom she
had not seen for forty years, did not waive his rights to the benefits.50
Several years ago a presenter at a continuing education program prophesied that the seeds of tomorrow's litigation were being planted in the
divorces with QDROs. He was correct. There are a growing number of
cases involving QDROs. A domestic relations order (DRO) received by a
pension plan after the participant's death seeking past child support payments is not a QDRO because under the plan, the deceased's surviving
spouse was receiving benefits. Therefore, the DRO was too late. 51 The
fully subsidized early retirement benefit payable under an employer's
ERISA-governed retirement plan to qualifying participants who had not
yet reached normal retirement age, who were effectively forced to retire
before age sixty-five due to a reduction-in-force, and who executed a
general release was an "employer subsidy for early retirement" within the
meaning of the provision of a QDRO. Therefore, a retiree's ex-wife was
entitled to 53% of the retiree's normal retirement benefit plus 53% of
the value of any employer subsidy for early retirement. 52 Under ERISA,
surviving spouse benefits generally vest at the time of the pension plan participant's retirement. A DRO issued after a plan participant's retirement
that requires the distribution to an alternate payee of some or all of a surviving spouse benefit that is payable to another beneficiary under the form
of benefit then in effect cannot be qualified because it requires a pension
plan to pay the alternate payee a type or form of benefit not otherwise
provided by the plan. 53
48. MidAmerican Pension & Emp. Benefits Plans Admin. Comm. v. Cox, 720 F.3d 715
(8th Cir. 2013) (citing 28 U.S.C. 1055(c)(I)(A)(iii)).
49. Barber v. Barber, 738 S.E.2d 845 (S.C. Ct. App. 2013).
50. Igoe v. 1199 SEIU Health Care Employees Pension Fund, 2013 WL 3467028 (S.D.
N.Y. July 10,2013).
51. Bd. of Tr. Ind. State Council of Plasterers & Cement Masons Pens. Fund v. Steffens,
2012 WL 5207499 (E.D. Mo. Oct. 22, 2012) (unpublished).
52. Gruber v. PPL Retirement Plan, 520 Fed. Appx. 112 (3d Cir. 2013) (unpublished).
53. Langston v. Wilson-McShane Corp., 828 N.W.2d 109 (Minn. 2013).
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515
III. State Cases
A. Adoption
1.
CONSENTS
A perennial issue is when one parent can unilaterally consent to a
child's adoption by a stepparent or by others. Where a parent abandons his
or her children by not acting as a parent for a period of time, the parent's
consent to adopt is not necessary.54 Even if he or she is incarcerated, a
parent must try to communicate meaningfully with the child or his or her
consent will not be necessary.55 A trial court order denying biological
father's motion to intervene in adoption proceeding was immediately
appealable, and the case was remanded to determine if he took prompt
action to assert his rights. 56 If a putative father fails to file a timely notice
of objection to a proposed independent adoption, it is an irrevocable
deemed consent to the termination of his parental rights. 57
A father satisfied the support and communication requirement of the
adoption consent statute by living with the mother both during and after
her pregnancy, even if he did not know of the pregnancy.58 In a stepparent adoption, the trial court properly found that the biological father was
withholding his consent to adoption, contrary to the best interests of the
child, where the child has been integrated into the home of mother and
stepfather, and other factors favored the adoption of the three-year-old. 59
A mother who voluntarily consented to termination of her rights to
allow stepmother to adopt could not try to revoke the consent a year later
even though she alleged the father had promised to forgive her child
support obligation and to provide postadoption visitation, which were not
54. In re Adoption of Angelina K., 964 N.Y.S.2d 343 (App. Div. 2013) (father's consent
was unnecessary where he had been given supervised visitation but had not seen the children
for over three years, did not send gifts, and did not make child support payments for two years).
See also In re De'Von M.F.C., 962 N.Y.S.2d 622 (App. Div. 2013) (finding father's consent to
adoption unnecessary where he had not maintained substantial and continuous contact with
child through support of visitation).
55. David S. v. Jared H., 308 P.3d 862 (Alaska 2013) (allowing grandparents to adopt the
child). See also In re J.MJ., 404 S.W.3d 423 (Mo. Ct. App. 2013) (allowing grandparents to
adopt where mother had willfully abandoned and neglected child).
56. In re S.DW., 745 S.E.2d 38 (N.C. Ct. App. 2013) (remanding for hearing on whether
biological father took prompt steps after discovering existence of child to assume parental
responsibility).
57. In re Sean M., 63 A.3d 28 (Md. 2013).
58. In re Adoption of S.K.N., 735 S.E.2d 382 (N.C. Ct. App. 2012).
59. In re J.C.F., 73 A.3d 1007 (D.C. 2013) (noting father's unmet mental health needs,
compulsive dishonesty, ongoing domestic violence issues, ongoing gambling addiction among
other things, including recent criminal history).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
disclosed to the court. 60 A fiancee of the father could not adopt his child
without the mother's consent. The court interpreted the notice to father's
requirement to mandate sufficient notice to mother. 61 Technical noncompliance with the statute did not invalidate a mother's consent to a private
adoption. 62
2.
WHO CAN ADOPT
Alabama refused to allow a same-sex spouse to adopt her spouse's
child. Citing the Defense of Marriage Act, the court found it did not have
to recognize the marriage or allow the adoption. 63 A Michigan court found
that even if the trial court lacked jurisdiction to grant an adoption to the
same-sex partner of the biological mother, the adoption was not void. 64
A former husband could not adopt his former stepchild, even with the
mother's consent as in the child's best interest, because Kansas does not
recognize second-parent adoption and allow the biological parent to also
retain rights. 65 Foster parents had mixed results on trying to get standing to
adopt. 66 While Minnesota law requires the court to consider the adoption
petition of a relative before considering one of a nonrelative, the law does
not require a preference when determining the best interests of the child. 67
3.
MISCELLANEOUS
Adopted children inherit the same as biological children and an adoptive child's right as a beneficiary of her adoptive father's will and two
irrevocable trusts had vested when the widow placed the child for adoption again eight years after the father's death68 Adult mother's adoption by
her relatives terminated visitation rights that maternal grandmother had
been granted with mother's child. Visitation rights of grandmother were
derived from mother, but upon mother's adoption, statute effected the
termination of all legal relationships between adopted individual and her
60. In re Ibanez, 834 N.W.2d 306 (S.D. 2013).
61. In re Adoption of J.T.A., 988 N.E.2d 1250 (Ind. Ct. App. 2013).
62. In re Eliyahu, 961 N.Y.S.2d 124 (App. Div. 2013) (adoptive parents' failure to get
certification of their qualifications before taking custody did not invalidate the mother's consent
or prevent adoption).
63. In re Adoption of K.R.S., 109 So. 3d 176 (Ala. Civ. App. 2012).
64. Usitalo v. Landon, 829 N.W.2d 359 (Mich. Ct. App. 2012).
65. In re Adoption of I.M., 288 P.3d 864 (Kan. Ct. App. 2012).
66. Compare Youngblood v. S. Carolina Dep't Soc. Servs, 741 S.E.2d 515 (S.C. 2013)
(finding foster parents not statutorily able to adopt after child had been removed); MS v. People,
303 P.3d 102 (Colo. 2013) (finding foster parents had no constitutionally protected liberty interest) with In re J.C., 399 S.W.3d 235 (Tex. App. 2012) (finding foster parents could adopt
because termination of parental rights also terminated standing of grandparents).
67. In re S.G., 828 N.W.2d 118 (Minn. 2013).
68. In re Svenningsen, 959 N.Y.S.2d 237 (App. Div. 2013).
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517
biological relatives, such that they were strangers for all purposes. 69
The more specific adoption jurisdiction provision of the Kansas
Adoption and Relinquishment Act controlled a stepparent adoption where
mother and stepfather had lived in Kansas for several years, even though
father still lived in Mississippi, the divorce decree state. 70 An adult adoption from Pennsylvania is entitled to full faith and credit in Florida, even
if the adoption could not have taken place in Florida. 71
Equitable adoption is extremely difficult to prove. To contest a will, the
plaintiff must prove an intent to adopt and that the adoptive parent acted
consistently with that intent. Merely treating a foster child or stepchild
lovingly and on an equal basis with his or her natural or legally adopted
children is not enough.72
B. Agreements
1.
PREMARITAL
The Uniform Premarital and Marital Agreement Act, approved by the
Uniform Law Commission and the American Bar Association, has been
enacted in Colorado, effective July 2014, and in North Dakota.
Premarital agreements can be set aside if they are involuntary or if
there is fraud. 73 Courts look carefully at spousal waivers.74 A waiver of
spousal support was unconscionable due to the great disparity in the parties' respective incomes, assets, education, and inequality in bargaining
power. Although the support waiver was not illegal as a matter oflaw, it
was unenforceable and unconscionable at the time of enforcement where
wife had not worked in long-term marriage and husband had over
$10 million. The waiver, however, was severable from the agreement. 75
69. Scudder v. Ramsey, 2013 WL 992446 (Ark. Mar. 14,2013).
70. In re Adoption of H.C.H., 304 P.3d 1271 (Kan. 2013).
71. Dennis v. Kline, 120 So. 3d 11 (Fla. Dist. Ct. App. 2013) (probate law treated adopted
persons, young or adult, equally with their biological counterparts).
72. DeHart v. DeHart, 986 N.E.2d 85 (Ill. 2013) (allowing plaintiff, whom testator had held
out for sixty years as his son, to contest will on equitable adoption theory).
73. Cioffi-Petrakis v. Petrakis, 960 N.Y.S.2d 152 (App. Div. 2013) (evidence supported
finding that husband fraudulently induced wife to execute prenuptial agreement and noted that
the trial court found that wife's testimony was "credible," "convincing," "unequivocal," and
consistent with additional corroborative evidence, and by contrast, found husband's "credibility
to be suspect," due in part to his "patent evasiveness").
74. In re Marriage of Melissa, 151 Cal. Rptr. 3d 608 (Ct. App. 2012) (upholding the trial
court's invalidation of a spousal support waiver in the parties' 1985 premarital agreement as
violating public policy at the time of execution).
75. In re Marriage of Facter, 152 Cal. Rptr. 3d 79 (Ct. App. 2013) (finding Harvard-trained
attorney husband who drafted the agreement had income and assets greatly exceeding wife's at
time of agreement; agreement provided that none of the property acquired during marriage
would be community; wife would get $100,000 in event of divorce; another $100,000 if married
fifteen years).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
Washington found that a premarital agreement is not valid if it is both substantively and procedurally unfair. Where there was full disclosure and
the contract was entered voluntarily, the court upheld the agreement. 76
Where a choice-of-Iaw provision in a premarital agreement does not
expressly address issues, those issues are decided by the forum state. 77
2.
MARIT ALiPoSTMARIT AL
Courts are dealing with more cases involving marital or postmarital
agreements. The Kansas Court of Appeals set out the differences between
a premarital, separation, and postmarital agreement. The appropriate standard for assessing the enforceability of a postmarital agreement is a court
review of the agreement to determine whether (l) each party had an
opportunity to obtain separate legal counsel of each party's own choosing,
(2) there was fraud or coercion in obtaining the agreement, (3) all material assets were fully disclosed by both parties before the agreement was
executed, (4) each spouse knowingly and explicitly agreed in writing to
waive the right to a judicial equitable division of assets and all marital
rights in the event of a divorce, (5) the terms of the agreement were fair
and reasonable at the time of execution, and (6) the terms of the agreement
are not unconscionable at the time of dissolution. The court upheld a postmarital agreement under the circumstances, which gave wife most of the
assets and found she was entitled to attorneys' fees under an indemnity
provision. 78 Pennsylvania upheld a postnuptial agreement where the wife
had waived full disclosure and there was no showing of fraud or duress. 79
3.
SEPARATION OR PROPERTY SETTLEMENT
A settlement agreement is unconscionable because the wife was unable
to read it when the husband presented it for signing because of the medications she was taking for fibromyalgia and bipolar disorder, which
severely impaired her cognition. 80 Parties' oral open-court stipulation to
their property settlement agreement (PSA) satisfied the rule governing
conditions under which a court may, on motion, enforce an agreement to
settle pending litigation such that the trial court could later enter a divorce
decree incorporating the PSA, even without the husband's signature. He
had acknowledged, under oath, the PSA's key terms, he had reviewed it,
76. Kellar v. Estate of Kellar, 291 P.3d 906 (Wash. Ct. App. 2012).
77. O'Connor v. Miroslaw, 388 S.W.3d 541 (Mo. Ct. App. 2012).
78. In re Marriage of Traster, 291 P.3d 494 (Kan. Ct. App. 2012), appeal pending. See also
In re Estate of Wilber, 75 A.3d 1096 (N.H. 2013) (noting the modem view is that spouses may
enter into contractual relationships and courts will uphold them if they satisfy the criteria of contract formation and are otherwise fair).
79. Lugg v. Lugg, 64 A.3d 1109 (Pa. Super. Ct. 2013).
80. In re Callahan, 984 N.E.2d 531 (Ill. App. Ct. 2013).
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519
and he had agreed to its terms. 81
Invalidity of the child support provision in settlement agreement or not
complying with state child support laws invalidated entire agreement.
The provisions pertaining to child support constituted the main objective
of the agreement. 82
Parol evidence was admissible to clarify marital-settlement-agreement
provision regarding distribution of husband's military retirement benefits.
Agreement was ambiguous as to whether former wife was entitled to 50%
of full benefits or only 50% of benefits earned during the marriage. 83 The
fact that a divorced couple's separation agreement contains a specific performance clause does not mean that they are automatically entitled to such
a remedy because the party seeking relief must satisfy the prerequisites for
specific performance in order to be entitled to it. 84
C. Alimony
1.
ORIGINAL AWARD
Several states are looking at alimony guidelines. Colorado enacted Act
Concerning Guidelines for the Determination of Spousal Maintenance,
which will apply to all new cases filed after January 1, 2014. Georgia
ruled that a person in a void bigamous marriage is not entitled to alimony.85 A New Jersey court, while noting that fault is normally not part of
the alimony determination, found that there is an exception for "egregious
fault," which may have occurred when the wife embezzled a large sum of
money from the family business. 86
Most courts look at the need of one spouse as opposed to the ability of
the other to pay.87 One key issue then is income. Maryland determined
that the fact that the wife is receiving Social Security disability benefits is
not prima facie evidence of her inability to work. 88 Evidence was sufficient to support trial court's imputation of income to wife who claimed
she was unable to work full-time due to debilitating, progressive, and
observable medical conditions. No physician found wife to be medically
disabled, and competent substantial evidence, including testimony of
vocational expert, supported findings that wife was able to earn $15,196
81. Grisham v. Grisham. 289 P.3d 230 (Nev. 2012).
82. David v. Cruz, 960 N.Y.S.2d 29 (App. Div. 2013).
83. Toussaint v. Toussaint, 107 So. 3d 474 (Fla. Dist. Ct. App. 2013).
84. Reeder v. Carter, 740 S.E.2d 913 (N.C. Ct. App. 2013).
85. Wright v. Hall, 738 S.E.2d 594 (Ga. 2013).
86. Clark v. Clark, 57 A.3d I (N.J. Super. Ct. App. Div. 2012).
87. Boyle v. Boyle, 290 P.3d 456 (Ariz. Ct. App. 2012) (finding sixty-five-year-old wife
with serious health issues leaving a thirty-three-year marriage was eligible for alimony).
88. Hiltz v. Hiltz, 73 A.3d 1199 (Md. Ct. Spec. App. 2013).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
annually in available jobs accommodating her medical limitations without
any additional credentials, and between $15,000 and $20,000 a year in
suitable available jobs after receiving vocational skills training and rehabilitation. 89 Evidence established that husband's income was more than
$400,000 per year due to taxable distributions, rather than only $208,000,
which husband received as wages from his S corporation. The accountant
explained that the corporation sometimes distributed additional money to
shareholders, including husband, in the form of loans, but there were no
documents to show a loan and husband's individual tax returns, as well as
corporate tax returns and balance sheets, suggested that his income was
greater than merely his wages. 90 A trial court erred when it determined
that it could either divide the husband's business as marital property or
use the income from the business for alimony, but not both. 91
South Dakota upheld a monthly award of $5,000 in alimony to a wife of
fifteen years until death or remarriage and attorney's fees of $14,419. The
husband had a business and earned over $19,000 a month, whereas wife's
earnings were ten to twelve dollars an hour.92 An Arizona court upheld a
spousal maintenance award of $50 a month. 93 A Florida court stated that
because lump-sum alimony is nonmodifiable, it requires a special necessity and unusual circumstances above and beyond the justifications for an
award of permanent alimony. In the case, the wife had been awarded all
equity in the marital residence ($380,000) as lump-sum alimony, but she
remarried four months after the divorce. The court found no special circumstances, and the husband had not had proper notice of the hearing. 94
2.
MODIFICATION, TERMINATION, ENFORCEMENT
As a general rule, alimony can be modified based upon a material
change of circumstances. Sometimes parties agree to make alimony nonmodifiable, often to one party's detriment. Maryland upheld the parties
agreed-to alimony provision making it nonmodifiable, even though the
ex-husband is now permanently disabled, unemployed, has no income,
and has filed for bankruptcy.95 In another case with a marital settlement
agreement providing that spousal support was not modifiable except for
89. Broemer v. Broemer, 109 So. 3d 284 (Fla. Dist. Ct. App. 2013).
90. In re Marriage of Schenkelberg, 824 N.W.2d 481 (Iowa 2012).
91. Loutts v. Loutts, 826 N.W.2d 152 (Mich. Ct. App. 2012). See also Griffith v. Griffith,
2013 WL 1452930 (Iowa Ct. App. Apr. 10,2013) (unpublished).
92. Hagedorn v. Hagedorn, 822 N.W.2d 719 (S.D. 2012).
93. Boyle v. Boyle, 290 P.3d 456 (Ariz. Ct. App. 2012) (awarding nominal maintenance
was not improper attempt to retain jurisdiction; wife was statutorily eligible for maintenance).
94. Taylor v. Taylor, 114 So. 3d 283 (Fla. Dist. Ct. App. 2013) (wife's remarriage ended
entitlement to permanent alimony).
95. Bradley v. Bradley, 76 A.3d 395 (Md. Ct. Spec. App. 2013).
A Review o/the Year in Family Law
521
specific circumstance resulting in a reduction of support to $2,000, the
trial court erred in reducing alimony to less than $2,000 due to obligor's
disability.96
A modification of alimony generally requires a material change of
circumstances that makes the award inequitable or less necessary. Often
this is because of remarriage or cohabitation of the obligee who now has
someone else to rely on for support. Alabama determined that a divorced
man's obligation to provide his ex-wife with health insurance coverage
was alimony and it terminated when she remarried. 97 In Delaware, alimony can be terminated if the recipient and another person are regularly
residing together, which means "living together with some degree of continuity," i.e., which may be in each other's residence. 98 In South Carolina,
when the husband has his paramour stay with him five nights a week, he
is continuously cohabiting and therefore his alimony may be terminated. 99
A wife's collection of after-tax proceeds of a million-dollar lottery
prize she won from a lottery ticket she purchased from her separate funds
after the husband had filed a divorce action constituted a substantial
change of circumstances, and the pendente lite order awarding wife temporary maintenance could be modified.lOo Ex-husband's deteriorating
health from a chronic illness and his resulting unemployment and bankruptcy were sufficient to support a reduction in the amount of his
incapacity spousal maintenance obligation based on ex-wife's physical
incapacity, even if there had been no improvement in ex-wife's medical
condition where ex-wife had a current ability to earn some part-time
income, which was not present at the time of the divorce. 101 Wife was
able to get modification of decree to award alimony in solido and
attorney's fees after she had been given all marital debt because husband
discharged his liabilities in bankruptcy. 102
In making a determination of whether maintenance payments should be
modified, the court may consider the extent to which a party's relevant
expenses have been reduced as a result of a new marriage; however, this
consideration is only relevant to determine if the existing award should be
96. In re Marriage of Hibbald, 151 Cal. Rptr. 3d 553 (Ct. App. 2013) (disability was not
unforeseeable since he'd been suffering for eight years).
97. Peace v. Peace, 2012 WL 5077142 (Ala. Civ. App. Oct. 19,2012).
98. Paul v. Paul, 60 A.3d 1080 (Del. 2012). But see Charette v. Charette, 60 A.3d 1264
(Me. 2013) (former wife's cohabitation with boyfriend was not ground for modification of
spousal support obligation set by agreement, but a showing of how boyfriend provided financial
support).
99. McKinney v. Pedery, 749 S.E.2d 119 (S.C. Ct. App. 2013).
100. Questel v. Queste1, 960 N.Y.S.2d 860 (Sup. Ct. 2013).
101. Banks v. Banks, 980 N.E.2d 423 (Ind. Ct. App. 2012).
102. Yattoni-Prestwood v. Prestwood, 397 S.W.3d 583 (Tenn. Ct. App. 2012).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
reduced, not increased.103 In Minnesota, the parties cannot agree to a
retroactive modification of alimony beyond that which is authorized by
statute. 104
Administrator of former wife's estate filed contempt action against former husband for nonpayment of alimony. The former husband was
required to continue making post-remarriage payments following former
wife's death, where payments appeared to be intended for the support and
schooling of wife's children, not for former wife herself, and payments
were voluntary contractual obligations agreed upon by former husband. 105
An Iowa judgment determined that unpaid alimony constitutes a lien
against the payor's estate in case of death and does not need to be offset
with the amount of Social Security benefits that the ex-wife will receive
due to the ex-husband's death.106
D. Alternative Dispute Resolution
1. MEDIA nON
The Texas Supreme Court endorsed the use of mediation as a means of
resolving parental disputes. The court noted:
Encouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children
involved in high-conflict custody disputes. * * * Children involved in these disputes-tellingly, referred to as "custody battles"-can face perpetual emotional turmoil, alienation from one or both parents, and increased risk of developing psychological problems. * * * For the children themselves, the conflict associated with the litigation itself is often much greater than the conflict that led to
a divorce or custody dispute. The Legislature has thus recognized that, because
children suffer needlessly from traditional litigation, the amicable resolution of
child-related disputes should be promoted forcefully.107
When the parents have entered into a mediation agreement and have
been represented by counsel as required by Texas law, the trial court commits error if it substitutes its judgment of what is in the best interests of
the child. Only if there is demonstrated harm to the child should the agreement not be entered as a judgment. 108
The Indiana court noted that judicial policy strongly urges the amicable resolution of disputes and embraces a robust policy of confidentiality
103. Tudor v. Tudor, 399 S.W.3d 791 (Ky. Ct. App. 2013) (finding trial court erred in
considering obligor's new wife's income in determining whether to grant his motion to decrease
his maintenance to ex-wife).
104. Leifur v. Leifur, 820 N.W.2d 40 (Minn. Ct. App. 2012).
105. Goodell v. Oliver, 740 S.E.2d 170 (Ga. 2013).
106. Schober v. Schober, 2013 WL 4506413 (Iowa Ct. App. Aug. 21, 2013) (unpublished).
107. In re Lee, 411 S.w.3d 445, 450 (Tex. Dec. 6, 2013).
108. Id.
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523
of conduct and statements made during negotiation and mediation. 109 The
trial court's sanctioning of a father who agreed to mediation in the parenting plan but failed to attend mediation as he was ordered to do on two
separate occasions did not violate his procedural due process rights. 11O
2.
ARBITRATION
Arbitration in family law matters is gaining momentum partly because
of the explosion in family law cases, pro se litigants, and decreasing court
budgets. The Uniform Law Commission has appointed a drafting committee for a new Family Law Arbitration Act. Professor Barbara Atwood is the
chair, and Linda Elrod is the reporter. The committee had its first meeting
in October 2013, and the act will have its first reading in the summer of
2014. Drafts are available on the Uniform Law Commission website.
An increasingly popular provision in a marital settlement agreement is
that the parties will submit future disputes to arbitration. The purposes of
the arbitration agreement are speed and convenience. Arbitrability of a
dispute is determined by examining the arbitration agreement between the
parties. If the reviewing court can fairly say that the parties' arbitration
agreement covers the dispute, the inquiry ends because Washington
strongly favors arbitration. The court determines whether the parties have
agreed to arbitrate a particular dispute but cannot decide the merits of the
controversy. Enforceability of the parties' stipulated agreement, like the
parties' dispute regarding the substance of the spousal maintenance provision in the agreement, was a matter for an arbitrator and not a court. I I I
In a Colorado case, the parties agreed to resolve their dispute through
mediation and arbitration. If they could not reach agreement in mediation,
the mediator would become the arbitrator. They reached a parenting
agreement through mediation but submitted the property distribution to
arbitration. The arbitrator affirmed the parenting provisions and ruled on
property issues. When a party timely requests a de novo hearing on the
parenting-time provision in an arbitration award, the trial court has the
discretion to schedule a permanent orders hearing to determine if the arbitration award is in the best interests of the child. If no timely request is
made, the trial court's authority is limited to confirming the award in its
entirety. 112 New Jersey has indicated that once an arbitrator has functioned
as a mediator, he may not thereafter resume the role of arbitrator and con109. Homer v. Carter, 981 N.E.2d 1210 (Ind. 2013) (finding that husband's purported oral
statements made during mediation fell within the express inadmissibility of mediation evidence
in a hearing on his petition to modify the mediated settlement).
110. Geiss v. Geiss, 835 NW.2d 774 (Neb. Ct. App. 2013).
111. In re Marriage of Pascale, 295 P.3d 836 (Wash. Ct. App. 2013).
112. In re Marriage of Rivera & Rivera, 300 P.3d 994 (Colo. App. 2013).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
duct arbitration. The trial court was not permitted to maintain involvement
in a case after the parties agreed to binding arbitration. 113
Financial issues in a matrimonial action were subject to arbitration in a
rabbinical court. The stipulation of settlement provided that all disputes
related to matters addressed in stipulation would be subject to arbitration
before a rabbinical court, and arbitration was not barred on public policy
grounds as issues of custody and visitation were not raised. 114
3.
PARENTING COORDINATORS
A trial court's allowance of parenting coordinators to resolve child custody dispute between parents, so long as access to the court is allowed for
ultimate resolution of the dispute, is not an improper delegation of judicial power. 115 A court could terminate the use of a parent coordinator even
though the original order had been for ten years. 116
When a marriage dissolution decree requires divorcing parents to
engage a parenting consultant to resolve parenting disputes, the consultant is entitled to quasi-judicial immunity against either parent's claim for
civil damages. ll7
E. Assisted Reproduction
Several cases dealt with surrogacy contracts. In one case, the surrogate
mother, her husband, and the child's biological father jointly filed an
agreed-to petition to establish biological father's paternity and disestablish
surrogate mother's maternity. The Indiana Court of Appeals held that the
agreed-to petition was sufficient to overcome a presumption that surrogate
mother's husband was father but did not disestablish surrogate mother's
maternity.ll8 The Wisconsin Supreme Court found enforceable a parental
agreement between a husband, wife, and a surrogate and her husband to
carry a baby. The husband's sperm and surrogate's egg were used. After
birth, the surrogate changed her mind. Although the trial court had refused
to recognize the agreement, the Supreme Court found that surrogacy agreements are valid contracts and largely enforceable if not contrary to the
best interests of the child. The agreement could not require the surrogate
mother to terminate her parental rights, but the unenforceable provisions
were severable. 119
113.
114.
115.
116.
117.
Minkowitz v. Israeli, 77 A.3d 1189 (N.J. Super. Ct. App. Div. 2013).
Wieder v. Wieder, 963 N.Y.S.2d 372 (App. Div. 2013).
Dieterle v. Dieterle, 830 N.W.2d 571 (N.D. 2013).
Mullendore v. Mullendore, 288 P.3d 948 (Okla. 2012).
Van Gelder v. Johnson, 827 N.W.2d 430 (Minn. Ct. App. 2012).
118. In re Paternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App. 2013).
119. In re F.T.R., 833 N.W.2d 634 (Wis. 2013).
A Review of the Year in Family Law
525
A biological father brought an action to establish paternity and parental
rights with respect to a child who was conceived using a "do-it-yourself'
artificial insemination procedure. He had donated sperm so his sister's partner could have a baby. The Florida District Court of Appeals held he was a
sperm donor who had no parental rightS. 120 On the other hand, the Florida
Supreme Court found that a woman who donated her ova so her then partner could have a baby had standing to seek custody and visitation of the
resulting child. The statute requiring a donor to relinquish parental rights
violated due process and statutory differentiation between heterosexual and
same-sex couples with respect to the requirement that a donor of biological
material relinquish parental rights violated equal protection. 121
Virginia found that its law providing that the parent-child relationship
may be established by genetic testing directly conflicts with the assisted
conception statute. Paternity to be established solely on the basis of biological ties circumvents the artificial insemination statute that sperm
donors cannot establish parentage by genetic testing. Unmarried female
egg donor who is also gestational mother may be considered a parent
under assisted conception statute. The fact that a male is unable to be the
gestational carrier of the fertilized ovum as a result of biology is not discrimination under the Equal Protection Clause. 122
The Kansas Supreme Court upheld a coparenting agreement between
lesbian partners. One partner conceived the children by artificial insemination. Denying a child conceived by artificial insemination the opportunity
to have two parents through a coparenting agreement does not comport
with the constitutional mandate to provide substantive legal equality for all
children regardless of the marital status of their parents. A coparenting
agreement between biological mother and same-sex partner was enforceable by the district court to the extent that it was in the best interests of the
children; agreement contained no element of immorality or illegality and
did not violate public policy, but rather was for the advantage and welfare
of the children in that it provided them with substantive legal equality,
regardless of the marital status of their parents. 123
Former same-sex partner could assert a common-law contract and
promissory estoppel cause of action seeking custody and visitation of children conceived by artificial insemination and born to other partner. 124
120. A.A.B. v. B.O.C., 112 So. 3d 761 (Fla. Dist. Ct. App. 2013).
121. D.M.T. v. T.M.H., 79 So. 3d 787 (Fla. Dist. Ct. App. 2013), aff'd in part, 129 So. 3d
320 (Fla. 2013).
122. L.F. v. Breit, 736 S.E.2d 711 (Va. 2013).
123. Frazer v. Goudschaal, 295 P.3d 542 (Kan. 2013).
124. In re T.P.S., 978 N.E.2d 1070 (Ill. App. Ct. 2012).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
F. Attorneys
Cases involving attorneys this year discussed conflicts of interest,
attorneys' lack of competence and diligence, as well as overt misconduct.
As to conflict of interests, a brief conversation with the wife three years
ago did not require disqualification of the attorney from representing the
husband. 125 An attorney who confused his role as defense counsel in a
juvenile delinquency proceeding with that of a guardian ad litem had a
conflict of interest requiring reversal of the adjudication, even without a
showing of any adverse impact on his performance. 126
Attorney, who had assisted husband in obtaining lawful permanent resident immigration status for husband's wife, was not required to obtain his
informed consent before drafting marital separation agreement as wife's
attorney. Any confidential information shared between husband and attorney in immigration matter was not substantially related to and therefore
could not have been used to the detriment of husband in drafting separation agreements. 127 It was a conflict of interest for a lawyer to represent a
husband in divorce and a wife in proceedings before the EEOC. 128
More disciplinary panels dealt with serious attorney misconduct.
Lawyers found themselves in disciplinary difficulties for not being reasonably diligent or competent. 129 For example, an attorney obtained a
divorce for a client in March 2009 and was to complete the findings of
fact, conclusions of law, and judgment of divorce and file with the court.
The client needed the QDRO and a reference. Lawyer failed to timely prepare the QDRO. In another case he had dismissed the divorce without
client's consent and without notifying her. 130 District court's finding that
an attorney committed extrinsic fraud when responding to his wife's discovery in his own protracted divorce had a preclusive effect in subsequent
lawyer disciplinary proceeding. 131 Several cases deal with attorneys vio125. In re Marriage of Perry, 293 P.3d 170 (Mont. 2013).
126. In re Austin M., 975 N.E.2d 22 (Ill. 2012).
127. Shih Ping Li v. Tzu Lee, 62 A.3d 212 (Md. Ct. Spec. App. 2013).
128. Bd. Prof'! Responsibility v. VanVleet, 306 P.3d 1042 (Wyo. 2013).
129. See In re Disciplinary Proceedings Against Dade, 827 N.W.2d 86 (Wis. 2013) (sixtyday suspension where attorney failed to respond to client's phone calls regarding adjournment
of trial date for divorce and also failed to file final financial disclosure statement and trial brief);
Kentucky Bar Ass'n v. Thornton, 392 S.W.3d 399 (Ky. 2013) (l85-day suspension for, among
other things, failure to keep client informed about status of her divorce case); Disciplinary
Counsel v. Bogdanski, 985 N.E.2d 1251 (Ohio 2013) (incompetent representation of divorce
client including late filing of complaint, failure to appear for hearings, and failure to explain that
if client filed for bankruptcy the divorce case would be stayed pending completion).
130. In re Disciplinary Proceedings Against Haries, 25 N.W.2d 285 (Wis. 2013) (suspending
lawyer for six months).
131. Iowa Sup. Ct. Att'y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169 (Iowa 2013) (suspending attorney for sixty days).
A Review of the Year in Family Law
527
lating the "no sex" with client rules. 132
A basis for discipline that is becoming more common is "conduct prejudicial to the administration of justice and conduct reflecting adversely on
fitness to practice law." In one case, the lawyer used threats and intimidation tactics against opposing counsel, the judge assigned to the case, the
lawyer investigating an ethical complaint, and the deputy disciplinary
administrator. 133
The trial court has broad discretion to award attorney's fees to one
party, and its award is presumed to be correct. 134 Often attorney's fees
may be awarded when the fees are incurred due to the other party's egregious litigation misconduct. Divorce had been issued over default where
one party failed to appear and then died. His administrator filed multiple
baseless motions. Fees are appropriate when (1) one party does not have
ample liquid assets to pay, or (2) failure to award fees will undermine the
other award. So the question is whether there was bad faith.135
If the parties have agreed to provisions in a settlement agreement that
govern the award of attorney's fees, the agreement's provisions, rather
than the statutory provisions, control. 136 Connecticut held that an attorney's charging lien can arise by operation of law to be applied to the
assets or an interest in the assets assigned to a party in a dissolution of
marriage action. 137 A law firm was not required to comply with the rule on
lawyer-client business transactions when it obtained a promissory note for
132. Disciplinary Counsel v. Detwieler, 989 N.E.2d 41 (Ohio 2013) (attorney sent sexually
explicit texts to client he was representing in divorce case). See also In re Alberg, 294 P.3d 1192
(Kan. 2013) (disbarring lawyer who had sex with divorce client, comingled funds, and charged
a contingency fee in another divorce case); Md. Att'y Grievance Comm'n v. O'Leary, 69 A.3d
1121 (Md. 2013) (disbarring lawyer who acquired an improper proprietary interest in an
ongoing divorce case when she began cohabiting with her client and sharing his child support
obligations while trying to get them reduced).
133. In re Small, 294 P.3d 1165 (Kan. 2013) (suspending for six months the lawyer who also
personally attacked his own client in a letter to another lawyer).
134. In re Marriage of Geske, 2013 WL 4556752 (Mo. Ct. App. Aug. 28, 2013). See also
Schieffer v. Schieffer, 826 N.W.2d 627 (S.D. 2013) (denying mother's request to relocate to
New York and for attorney's fees of $370,000 where both parties had sufficient assets to pay
their own fees and mother had increased her costs by calling numerous experts).
135. Berzins v. Berzins, 51 A.3d 941 (Conn. 2012). See also Cave v. Scheulov, 64 A.3d 190
(D.C. 2013) (noting the. bad-faith exception permits an award of attorney's fees against a party
who acted in bad faith, vexatiously, wantonly, or for oppressive reasons connected to the
litigation); Goins v. Goins, 406 S.W.3d 886 (Mo. 2013) (awarding $7,500 to ex-wife to pay
appellate attorney's fees where attorney ex-husband represented himself, had greater financial
resources, and his twelve points on appeal were improperly phrased and difficult to analyze,
causing her to incur more fees).
136. Fenster v. Fenster, 966 N.Y.S.2d 899 (App. Div. 2013) (agreement provided that if
either defaulted and the injured party incurred attorney's fees and costs related to enforcing the
agreement, the defaulting party would pay such fees).
137. Olszewski v. Jordan, 71 A.3d 1276 (Conn. App. Ct. 2013).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
unpaid fees from a former client in the course of reestablishing an attorney-client relationship with her. 138
A woman has no cause of action against her former husband's lawyers
for using her medical records-which they obtained from their client-to
impeach her during cross-examination in a child custody trial. 139
G. Child Custody
1.
JURISDICTION-UNIFORM CHILD CUSTODY JURISDICTION AND
ENFORCEMENT ACT (UCCJEA)
The UCCJEA sets out the basis for child custody jurisdiction with the
preference going to the child's home state. New Mexico was child's
"home state" and had jurisdiction over child custody although a divorce
action had been filed in Texas first. The child was born in New Mexico
and always lived there. Divorce and custody determinations involved different inquiries, and custody determinations were governed by the UCCJEA, regardless of whether there was an ongoing divorce. 14o Washington
was deemed the home state of a child who lived in Iowa with the father
for fifteen months, regardless of the mother's intent. 141
A child did not live in California for six consecutive months immediately before the commencement of a dependency proceeding, when the
mother was arrested in California and deported to Mexico to be tried for
murdering the child's father twenty-eight days before the dependency proceeding was commenced. 142 Georgia had jurisdiction to terminate the
rights of adoptive parents of a child who came from Zambia to Georgia
for extensive medical procedures and had lived in Georgia for more than
six months with persons acting as parents. 143 It was error to determine
home state jurisdiction on the basis that the child had a "cumulative presence" in West Virginia for seven months over a two-year span. The court
should have determined whether West Virginia was the home state at any
time six months prior to the commencement of the proceeding. 144
A child who was born in Costa Rica to Kansas residents, who returned
with him to Kansas when he was six weeks old, was "temporarily absent"
from the state for purposes of determining home state jurisdiction over the
parents. Both parents were Kansas residents and had the child in Costa
138. Rafel Law Group PLLC v. Defoor, 308 P.3d 767 (Wash. Ct. App. 2013).
139. Yeager v. Dickerson, 391 S.W.3d 388 (Ky. Ct. App. 2013).
140. In re Dean, 393 S.w.3d 741 (Tex. 2012).
141. In re Marriage of Pereault, 829 N.W.2d 192 (Iowa Ct. App. 2013).
142. In re Gloria A., 152 Cal. Rptr. 3d 550 (Ct. App. 2013).
143. In re E.E.B.W., 733 S.E.2d 369 (Ga. Ct. App. 2012).
144. In re K.R., 735 S.E.2d 882 (W.Va. 2012).
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529
Rica so child would have dual citizenship. 145
New Jersey had jurisdiction over biological father's child custody suit
under the UCCJEA if it had jurisdiction of the same type North Carolina
had. Biological father had instituted suit in New Jersey where petition for
adoption by mother's husband was pending. 146
Trial court did not err in dismissing petition for dissolution of marriage
on ground of inconvenient forum, even if trial court had subject matter
jurisdiction on basis that petitioner, a German citizen who had moved to
Florida with her daughter in order for daughter to study there, also sought
child custody and child support. Trial court found no rational basis to
assume jurisdiction over a German court, in which the husband had filed
a prior dissolution petition, in a case involving German citizens, a minor
child who was a German citizen, and marital real and personal property
interests in Germany.147
A Kentucky family court was divested of continuing exclusive jurisdiction to hear mother's motion to relocate to Texas and modify father's
visitation where mother, child, and the father had relocated to Ohio before
mother filed her petition to relocate. 148
2. FACTORS
The standard used to award parenting time between parents is the best
interests of the child. If same-sex parents are married or have entered into
a civil union, both are considered parents the same as a heterosexual married couple. 149
The factors are varied, but generally include such things as stability
for the child, the parenting capacity of each parent, health issues, child's
preference, presence of domestic violence, ISO and ability of the parents to
foster a relationship with the other parent. Generally, trial courts have discretion whether to interview children, and whether to do it in camera, as to
their preferences for custody. lSI The child's preference, even if obtained, is
only one factor and not deterrninative. 152
145. In re Marriage of McDermott, 307 P.3d 717 (Wash. Ct. App. 2013).
146. Jones v. Whimper, 736 S.E.2d 170 (N.C. 2013).
147. Rudel v. Rudel, 111 So. 3d 285 (Fla. Dist. Ct. App. 2013).
148. Wahlke v. Pierce, 392 S.W.3d 426 (Ky. Ct. App. 2013).
149. See Frazer v. Goudschaal, 295 P.3d 542 (Kan. 2013); Hunter v. Rose, 975 N.E.2d 857
(Mass. 2012) (recognizing a California registered domestic partnership as equivalent to
Massachusetts marriage on principles of comity so that children were presumed to be both parties' children and awarding primary physical care to same-sex female partner who had not given
birth to the child).
150. Mallory D. v. Malcolm D., 290 P.3d 1194 (Alaska 2013) (finding equal culpability precluded invoking the rebuttable presumption against either parent's custody).
151. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).
152. Mullendore v. Mullendore, 288 P.3d 948 (Okla. 2012) (no error in keeping two children
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
Morality is usually not a factor unless it has an adverse impact on the
child. 153 Alabama found that a trial court may in an initial custody determination consider a parent's sexual conduct as it relates to that parent's
character, without a showing that the conduct has been detrimental to the
child. The court may also consider the fact that parent does not regularly
attend church. 154 Kentucky found that a trial court violated mother's due
process and equal protection rights when it used her sexual orientation as
a determinative factor when awarding sole custody of the children to the
father. Text messages exchanged between husband and wife's partner
were admissible not to prove the truth of the matter, but to demonstrate
the hostility between the parties. ISS
Trial court granted father primary physical custody of out-of-wedlock
child. After weighing all the factors, finding that the father was more likely to encourage a relationship with mother than mother would with father,
and father would better attend to child's educational needs. 156
3.
JOINT CUSTODY
The last decade has seen strident attempts to enact statutes that mandate
joint and shared residential custody. Trial judges have been careful to note
that the best interests of the child is the primary consideration. A
Louisiana court reiterated that even if a state statute requires joint custody
and even when joint custody is in the best interest of the child, the statute
does not mandate an equal sharing of physical custody.157
A trial court must find that joint physical custody is in the best interest
of the child if neither has requested joint custody. Trial court erred in
awarding without conducting a hearing. Father who had children five of
fourteen days, plus one additional night, had de facto joint physical custody, and child support should be set. 15S Noting that joint custody is
under age eight from testifying as father was not prejudiced); Hamrneren v. Hamrneren, 823
N.W.2d 482 (N.D. 2012) (no error in declining to interview ten-year-01d as to preference). See
also Zubizaretta v. Hemminger, 967 N.Y.S.2d 423 (App. Div. 2013) (finding child's wishes not
determinative and attorney's statement that child did not want to visit father was not sufficient
evidence to terminate visitation).
153. Benson v. Loffelmacher, 824 N.W.2d 82 (S.D. 2012) (awarding custody of a sevenyear-old child born out of wedlock to the father where mother's live-in relationships with three
different men in rapid succession were detrimental to the child).
154. D.M.P.C.P. v. T.J.C., Jr., 2012 WL 6554383 (Ala. Civ. App. Dec. 14,2012).
155. Maxwell v. Maxwell, 382 S.W.3d 892 (Ky. Ct. App. 2012).
156. MJ.M. v. MJ.G., 63 A.3d 331 (Pa. Super. Ct. 2013).
157. Moore v. Moore, 111 So. 3d 1120 (La. Ct. App. 2013) (finding no abuse of discretion
to allow mother to move to Houston and to not award equal physical custody given the distance
to Shreveport).
158. Hill v. Hill, 827 N.W.2d 304 (Neb. Ct. App. 2013) (the amount of time children spend
with each parent is less important than how time is allocated in determining joint physical
custody).
A Review of the Year in Family Law
531
encouraged as a voluntary alternative for relatively stable, amicable parents behaving in a mature, civilized fashion, a New York court found that
joint legal custody was not appropriate given the antagonism and hostility of the parents and awarded mother sole legal and physical custody.159
Joint physical custody is not mandatory. Trial court did not abuse its discretion in awarding joint custody of child born out of wedlock but naming the mother as domiciliary parent. 160
A Maryland court awarded joint custody but gave mother tie breaking
authority.161 A North Dakota trial court needed to make findings of fact as
to why joint physical custody was in a child's best interests because usually rotating custody is not. 162 A minor child of divorced parents who had
a legal residence in both parents' houses and who was injured in an automobile accident could be domiciled in only one household for purposes of
determining which parent's automobile insurance provided personal
injury protection benefits for child under No Fault Act. 163
When a parent who shares joint custody of his or her child enters into
the fictitious address program for domestic violence victims, the custodial parenting issues become intertwined with the victim's need for protection. The rights of a custodial parent to know where his or her child
resides must be balanced against the important state interest in protecting
victims of domestic violence served by the state's fictitious address program. By demonstrating that he or she shares joint legal custody with participant in Nevada's fictitious address program for domestic violence victims, a parent may meet the initial burden of proving that he or she has a
right to know the coparent program participant's home address where the
child is living during his or her custodial period with that parent. 164
When joint custody was no longer feasible due to an inability to communicate, court awarded mother sole legal and physical custody of eldest
child; father was awarded custody of two younger children. 165 In an
unusual case, the New York court terminated joint custody, giving sole
custody and primary residency to the father where the mother had mental
health issues, could not deal with the eldest child, and posted disparaging
things about him on social media. 166 Trial court acted within its discretion
159. Wright v. Kaura, 964 N.Y.S.2d 573 (App. Div. 2013).
160. Sanders v. Brown, 110 So. 3d 1237 (La. Ct. App. 2013) (court should not have de novo
review of trial court; substantial time, rather than strict equality of time, is objective of joint
custody).
161. Reichert v. Hornbeck, 63 A.3d 76 (Md. Ct. Spec. App. 2013).
162. Hammeren v. Hammeren, 823 N.W.2d 482 (N.D. 2012).
163. Grange Ins. Co. of Mich. v. Lawrence, 835 N.W.2d 363 (Mich. 2013).
164. Falconi v. Sec'y State Nev., 299 P.3d 378 (Nev. 2013).
165. Mahoney v. Regan, 955 N.Y.S.2d 241 (App. Div. 2012).
166. Melody M. v. Robert M., 962 N.Y.S.2d 364 (App. Div. 2013).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
in finding that mother's cohabitation with a registered sex offender neither
presented significant risk to the children nor otherwise warranted modification of parties' divorce decree that had awarded father and mother joint
legal and physical custody of their two children. !67 The court modified
joint physical and legal custody to give mother primary custody of twin
six-year-old girls who had allergy and urinary tract infection problems.
Father allowed them to both be with the dog and smoked in their presence.
Mother was more involved with activities and took them to the doctor. 168
4.
VISITATION
Reasonably probative evidence is required before a parent's visitation
rights can be curtailed. A Georgia court found a protective order preventing the father from taking a deposition of the thirteen-year-old girl he was
alleged to have abused was premature. !69 A court erred in denying the
mother all visitation solely because she was incarcerated. The court
should have considered whether the visits would endanger the children's
health or safety.!70
A court cannot delegate its responsibilities to determine the visitation
schedule to third parties. The trial court had ordered visitation with the
noncustodial parent, which would increase over time depending on the
opinions of a therapist and pediatrician. While third parties can determine
time and place, they cannot determine whether to allow "progressive visitation."!7! The court properly ordered exchange of children at police station where prior exchanges with father never occurred on time and often
caused conflict.!72 A prison regulation denying inmate visitation did not
violate due process where the parent was convicted of sex offenses
involving minors. 173
5.
MODIFICA TION/RELOCA TION
Courts modify custody when there has been a material change of circumstances and the children's best interests would be served by the
change. 174 The fact that the father became a better parent after custody
167. Watkins v. Watkins, 829 N.W.2d 643 (Neb. 2013) (noting mother had resided with the
boyfriend for approximately eighteen months, he was in his ninth year of a fifteen-year
registration period, had been married since his offense and had two children; in addition, the
parties' oldest child, who was emancipated testified that when she lived with mother and her
boyfriend, she did not have any problems with him).
168. Tidmore v. Tidmore, 114 So. 3d 753 (Miss. Ct. App. 2013).
169. Galbreath v. Bralea, 733 S.E.2d 412 (Ga. Ct. App. 2012).
170. In re Marriage of Stewart, 302 P.3d 818 (Or. Ct. App. 2013).
171. Engel v. Engel, 71 A.3d 1124 (Vt. 2012).
172. In re Regan v. Regan, 48 A.3d 920 (N.H. 2012).
173. Mitchell v. Smith, 817 N.W.2d 742 (Minn. Ct. App. 2012).
174. Mulkey v. Mulkey, 118 So. 3d 357 (La. Ct. App. 2013) (finding change of circum-
A Review of the Year in Family Law
533
was awarded did not entitle him to a change of custody where there was
no harm to the child in the mother's household. 175 In one case there was a
transfer of custody to the father when the child born out of wedlock was
fourteen. Mother's family has been referred to a "home-based therapy
program" due to stepfather's behavior. 176
Relocation issues that arise at the time of the initial custody order are
usually determined on a best-interest-of-the-child standard, rather than
using special statutory relocation standards that come into play in modification cases.177 Wyoming changed its presumption in favor of allowing
the custodial parent to move and found that when a mother proposed to
move the children to Virginia, it was a change of circumstances justifying
a hearing on whether the move was in the best interests of the child. 178
In looking at the best interests of the child, courts are concerned with
the benefits the child will derive directly or indirectly from the enhancement of the relocating parent's general quality of life. In a Louisiana case,
the court allowed the mother to move to Houston to be near her family
where she would be better able to support herself with her limited job
skills and her father, who worked for an airline, could travel more easily
(and for free) to visit. 179 The Connecticut Court of Appeals upheld the trial
court's denial of a mother's request to relocate with her son to Boston.
The parents had joint legal custody, but mother had primary residential
custody. The parties had agreed that the mother would not move more
than 32.5 miles without a court order or father's consent. She had remarried and had two children with her new husband who lived in Boston.
While the trial court found that there was a legitimate purpose, it found
the move was not in the child's best interest. 180
6.
THIRD-PARTY CUSTODY AND VISITATION
A third party can petition for custody if he or she can demonstrate abandonment, abuse, or extraordinary circumstances. That a third party would
stances in nine years with dynamics of both households changing); Sano v. Sano, 949 N.Y.S.2d
780 (App. Div. 2012) (finding mother's newfound interest in occult not sufficient change of
circumstances).
175. In re Marriage of Epler, 309 P.3d 1133 (Or. Ct. App. 2013).
176. Roth v. Haag, 834 NW.2d 337 (S.D. 2013).
177. Kremer v. Kremer, 827 N.W.2d 454 (Minn. Ct. App. 2013). See also Estopina v.
O'Brian, 68 A.3d 790 (D.C. 2013) (awarding mother custody and allowing her to move to
Virginia).
178. Amott v. Amott, 293 P.3d 440 (Wyo. 2012).
179. Moore v. Moore, III So. 3d 1120 (La. Ct. App. 2013).
180. Regan v. Regan, 68 A.3d 172 (Conn. App. Ct. 2013) (court did not require mother to
prove physical location was economic necessity nor punish her for marrying out-of-state
husband).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
be a better custodian is not an extraordinary circumstance,181 nor is a parent's undocumented immigration status. 182 A paternal grandparent could
petition for visitation under paternity provisions, even though parties executed a recognition of paternity form. 183 A paternal grandmother could not
use grandparent visitation statute to seek visitation where father had murdered mother of children and was in jail. 184
On petition for grandparent visitation, trial court must presume that fit
parent makes decisions that are in the child's best interest. Therefore, the
grandmother had the burden of overcoming the presumption by clear and
convincing evidence that visitation was in the child's best interest. The
right of paternal grandmother to petition for visitation of child after
father's death was not limited to statute authorizing noncustodial visitation to grandparent who assumed financial support of child. 185
Award of third-party visitation to maternal grandmother on alternating
weekends, alternating holidays, and every Christmas Day was more than
minimally intrusive of mother's parental rights and thus impermissibly
impinged on her fundamental constitutional right to make decisions concerning the care, custody, and control of her child; weekend-visitation
schedule placed child with maternal grandmother nearly twenty percent of
the time, not counting the additional holiday time. 186 Colorado found that
a great grandmother of a child lacked standing in dissolution action to
seek visitation because a great grandmother was not a grandparent. 187
H. Child Support
1. INCOME
Even though "all income" is considered for child support, as a general
rule, an inheritance is not considered income unless the child's needs are
not being met. 188 An unemployed father's lottery winnings and interest
generated from the investment of those winnings could be considered in
calculating his child support, in addition to potential income that could be
earned by imputing employment income. 189 The trial court did not err in
including the father's overtime wages in child support calculation. 190
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
Veldheer v. Peterson, 824 N.W.2d 86 (S.D. 2012).
Ramirez v. Luna, 830 N.W.2d 163 (Minn. Ct. App. 2013).
Christianson v. Henke, 831 N.W.2d 532 (Minn. 2013).
In re Guardianship of A.JA, 991 N.E.2d 110 (Ind. 2013).
Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) (overruling prior cases).
T.w. ex reI. R.w. v. T.H., 393 S.W.3d 144 (Mo. Ct. App. 2013).
In re M.D.E., 297 P.3d 1058 (Colo. App. 2013).
Crawford v. Schulte, 829 N.W.2d 155 (S.D. 2013).
McMurchie v. McMurchie, 304 P.3d 751 (Or. Ct. App. 2013).
Williams v. Dep't Human Servs., 116 So. 3d 176 (Miss. Ct. App. 2013).
A Review a/the Year in Family Law
535
Child support rule defining adjusted annual income as "the parent's
total income from all sources minus child support for children from prior
relationships living with the parent" did not entitle biological father to a
deduction for one out-of-wedlock child, for the support he provided to a
later-born child of another woman with whom he had a long-term relationship. The father's support obligation for the first child arose on the
date of the child's birth; the date of inception of the prior relationship was
immaterial. 191
Determination of whether undistributed earnings of an S corporation are
attributable to the parent-shareholder must be made based on the particular circumstances presented in each case. The court looks at the shareholder's level of control over corporate distributions as measured by (1) the
shareholder's ownership interest, (2) legitimate business interests justifying retained corporate earnings, and (3) evidence of an attempt to shield
income by means of retained earnings. Regardless of a parent-shareholder's ownership percentage in an S corporation, the parent shareholder has
the burden to present evidence that he or she does not have access to
retained income, in order to demonstrate that such income is not available
for purposes of determining income available for child support. 192
Evidence was sufficient to impute income to a father who lost a
$68,000-a-year job prior to divorce. He had paid $5,080 for a motorcycle
repair, rather than his child support arrearage of $800, so the court found
he was able. 193 When a trial court bases child support on a party's earning
capacity, the court must determine the specific dollar amount of the
parent's earning capacity.194
2.
DEVIATIONS
Settlement agreement and the order effectuating it, which purported to
opt out of the basic child-support obligations set forth in the Child Support
Standards Act (CSSA), was invalid. The agreement failed to recite that the
parties were aware of the CSSA guidelines, failed to set forth the basic
child support obligation, and failed to set forth the reasons for deviating
from the guidelines. 195
A parent who has primary physical custody of a child in a shared-custody arrangement where the time is not equally divided is the custodial
parent and cannot be ordered to pay child support to the noncustodial parent. Only the noncustodial parent can be directed to pay child support. 196
191.
192.
193.
194.
195.
196.
Coleman v. McCullough, 290 P.3d 413 (Alaska 2012).
Tuckman v. Tuckman, 61 A.3d 449, 459 (Conn. 2013).
In re Muller, 62 A.3d 770 (N.H. 2013).
Tanzman v. Meurer, 70 A.3d 13 (Conn. 2013).
David v. Cruz, 960 N.Y.S.2d 29 (App. Div. 2013).
Rubin v. Della Salla, 964 N.Y.S.2d 41 (App. Div. 2013).
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Family Law Quarterly, Volume 47, Number 4, Winter 2014
An order of zero dollars for either parent in split custody was reversible
error. 197
Several courts dealt with upward deviations. Trial court should have
analyzed the propriety of upward deviation of child support even though
the residential parent could provide children with predissolution
lifestyle. 198 Sufficient evidence supported trial court's conclusion that an
upward deviation from the presumptive amount of child support would be
in the best interests of the children based on their more expansive needs.
Absent an upward deviation, the two younger children would miss out on
trips, camps, and other comforts of life they used to enjoy. There was a
large disparity between the parties' household budgets, especially for
entertainment, with mother's household budget lower than it should be. 199
In a case where income exceeded the $20,000 guidelines by nine times,
the court ordered father to pay $2,815 base support and did not extrapolate. The children were to live with him half the time, and the father had
to pay 95% of special-needs child's therapy costs and health costs, estimated to be $15,800 a month. The court did not allow additional child
support. 2OO Trial court's award of child support in an amount that was an
upward deviation of only $900 per month from the presumed level of
$2,102 per month was not clearly erroneous in divorce action, although
husband's income exceeded highest enumerated monthly income of
$12,500 per month. Wife did not present any specific evidence of child's
appropriate needs, and wife did not propose specific amount for upward
deviation in child support. 201
Child's enrollment at community college to make up credits required for
his high-school graduation constituted enrollment in a secondary school.
Father's obligation to pay child support extended past age eighteen. 202
Alabama upheld trial court's award to require father to pay living-expense
assistance for adult child who was mentally and physically disabled. 203
A Missouri court used common sense in noting that the trial judge
could award all four dependency exemptions to the mother. However, if
that would mean that one or two would go unused, the court should
reevaluate that award and should attempt to structure the award to maximize the overall financial benefit of the exemptions to the family unit. 204
197.
198.
199.
200.
201.
202.
203.
204.
Parker v. Parker, 745 S.E.2d 605 (Ga. 2013).
Nash v. Nash, 307 P.3d 40 (Ariz. Ct. App. 2013).
Nuveen v. Nuveen, 825 N.W.2d 863 (N.D. 2012).
Schieffer v. Schieffer, 826 NW.2d 627 (S.D. 2013).
Hoverson v. Hoverson, 828 N.W.2d 510 (N.D. 2013).
Richardson v. Boozer, 57 A.3d 1028 (Md. Ct. Spec. App. 2012).
Ruberti v. Ruberti, 117 So. 3d 383 (Ala. Civ. App. 2013).
Kohl v. Kohl, 397 S.W.3d 510 (Mo. Ct. App. 2013).
A Review of the Year in Family Law
3.
537
MODIFICATION/TERMINATION
Evidence that husband's gross monthly income had increased by nearly
$2,000 and that his net worth had increased by nearly $3 million
during period between entry of final divorce decree and wife's petition
for modification of child support was sufficient to authorize an upward
modification of his child support obligation. 205
Trial court could not prohibit mother from applying for governmental
assistance for children as a condition to award of child support from
father. The condition had nothing to do with present financial circumstances of the parties or the needs of their children, did not represent any
statutorily authorized basis for a deviation from the presumptive amount
of child support, but was an improper attempt to make a predetermined
finding about an alleged future change in the financial circumstances of
the parties that would justify a modification of child support. 206 When a
complaint seeking modification of a child support order is filed, modification is presumptively required whenever there is an inconsistency
between the amount of child support that is to be paid under the existing
support order and the amount that would be paid under the guidelines.
To warrant a modification of child support, the statute governing child
support orders for children of divorced parents does not require that the
discrepancy or inconsistency between the existing order and the guideline
amount of child support result from a material and substantial change in
circumstances. 207
If lump-sum support is ordered for more than one child, the parent
should ask for modification when children age out. A father was not able
to get child support paid as overpayment offset in regard to youngest child
because that would result in a retroactive modification of child support. 208
A Kansas Supreme Court found that a court was not authorized to vacate
a temporary child support order that had resulted in arrearages.
Modification could only go back one month.209
An eighteen-year-old daughter's conduct toward her father was so
extreme that the court terminated the father's obligation to contribute
toward her college expenses. The daughter had joined with the mother in
trying to terminate his parental rights and had refused to see him for two
years. 210
205.
206.
207.
208.
209.
210.
Odom v. Odom, 733 S.E.2d 741 (Ga. 2012).
Singh v. Hammond, 740 S.E.2d 126 (Ga. 2013).
Morales v. Morales, 984 N.E.2d 748 (Mass. 2013).
Heumiller v. Heumiller, 821 N.W.2d 847 (S.D. 2012).
In re Marriage of Brown, 291 P.3d 55 (Kan. 2012).
Stasny v. Wages, 116 So. 3d 195 (Miss. Ct. App. 2013).
538
4.
Family Law Quarterly, Volume 47, Number 4, Winter 2014
ENFORCEMENT
Supplemental security income (SSI) is not attachable to satisfy a child
support obligation because it is not money received for employment. 211 A
New Hampshire court upheld the parties' court-approved stipulation that
father would maintain an $800,000 life insurance policy for children's
benefit. 212 The Kansas Supreme Court, however, found that a court could
not require a child support obligor to cooperate with obligee's efforts to
get life insurance on the life of the obligor. It is against public policy if the
obligor objects to the order. 213
The Due Process clauses of the Ohio and United States constitutions do
not guarantee an indigent parent the right to appointed counsel at a civil
contempt purge hearing involving nonpayment of child-support obligations. The parent's interest in personal liberty is diminished by the time of
the purge hearing because parent's continued freedom has been conditioned on compliance with purge requirements, it is highly unlikely that
purge hearing will result in an erroneous decision, and government has a
strong interest in ensuring that parents financially support their children
and in resolving those matters as quickly as possible. 214
Equitable principles embodied in the Uniform Interstate Family
Support Act (UIFSA), as well as traditional common-law principles of
comity, required family court to enforce Canadian child support order
providing for award of interest on child support arrears, absent a showing
of fraud in the procurement of the judgment or that recognition of the
judgment would do violence to some strong public policy. 215
Duration of father's child-support obligation was a nonmodifiable
aspect of the Florida divorce judgment. The trial court lacked authority
under UIFSA to extend father's child-support obligation after children
had reached the age of majority under Florida law, even if children would
have been entitled to continued support under post-eighteen provisions of
Massachusetts child support law. 216
I. Cohabitants
Colorado has civil unions as of May 1, 2013. Washington found that
the intent of one party to end an intimate committed relationship is sufficient to dissolve the relationship. Mutual intent to end is not needed.217
211.
212.
213.
214.
215.
216.
217.
Sykes v. Bank of America, 723 F.3d 399 (2d Cir. 2013).
In re Regan, 48 A.3d 920 (N.H. 2012).
Hall v. Hall, 286 P.3d 210 (Kan. 2012).
Liming v. Damos, 979 N.E.2d 297 (Ohio 2012).
Jasen v. Karassik, 956 N.Y.S.2d 92 (App. Div. 2012).
Freddo v. Freddo, 983 N.E.2d 1216 (Mass. App. Ct. 2013).
In re O.W.F., 285 P.3d 208 (Wash. Ct. App. 2012).
A Review afthe Year in Family Law
539
The Kansas Supreme Court found that the district court has inherent
equitable authority to divide the property of same-sex cohabitants, which
was jointly acquired or intended to be jointly acquired.218 A man who was
required to pay the mortgage on his home as part of an Alaska domestic
violence order, while his cohabitant lived in the home, is not entitled to
reimbursement in the couple's property division, although it would have
been within the court's discretion to do so.219
Vermont refused to impose a constructive trust to give a woman an
interest in shared property when she was separating from a cohabitant.
The majority seemed concerned that she had engaged in fraud by transferring her interest to others to qualify for SSDI. 220 Although they were
not married, parties who had been in a relationship for twelve years
formed a domestic partnership and intended to share in the fruits of their
relationship as though married, thereby justifying an equal division of
their property. 221
J. Divorce
1.
JURISDICTION
This year saw a large number of cases challenging the jurisdiction of a
court to grant a divorce. In one case, the fact that the husband underwent
gender reassignment surgery before the divorce petition was filed did not
impact the fact that when the marriage contract was entered into, the husband was a man and the wife was a woman. Therefore, the trial court had
jurisdiction to grant a divorce, even though the state constitution and
statutes precluded the recognition or validity of a marriage contracted
between two persons of the same sex. 222 A New York court held that a
wife established that her multiple changes in residency were only physical and that she never at any time intended to change her domicile from
New York. The husband failed to submit proof that she had abandoned
her New York domicile and intended to adopt a new one.223
Evidence supported trial court's finding on the basis of comity that it
lacked subject matter jurisdiction to hear former wife's petition for dissolution of marriage in Connecticut, despite her allegation that the foreign
218. Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013).
219. Reed v. Parrish, 286 P.3d 1054 (Alaska 2013).
220. Shattuck v. Peck, 70 A.3d 922 (Vt. 2013).
221. Reed v. Parish, 286 P.3d 1054 (Alaska 2012) (finding parties made many joint financial
decisions, jointly leased an apartment, jointly purchased a vehicle and obtained insurance for it,
reporting their marital status as "M" on the paperwork, held themselves out as married on
several occasions, referred to each other as husband and wife in public, and signed a health
insurance domestic partnership affidavit to obtain coverage).
222. In re Burnett Estate, 834 N.W.2d 93 (Mich. Ct. App. 2013).
223. Black v. Black, 968 N.Y.S.2d 722 (App. Div. 2013).
540
Family Law Quarterly, Volume 47, Number 4, Winter 2014
judgment was procured by fraud. Former husband's affidavit and copy of
Lithuanian appellate court decision provided undisputed facts that former
wife petitioned for dissolution in Lithuania, Lithuanian court entered
divorce decree from which former wife appealed seeking to excuse or
defer her payment obligation under the dissolution agreement. She did not
allege fraud on part of former husband, and Lithuanian appellate court
found no merit in her appeal as former wife received "greater share" of
marital property under Lithuanian divorce decree and retained benefits
from that portion of the award.224
A divorce action filed in Illinois by a resident of that state after her husband filed for divorce in India need not be dismissed on procedural
grounds, forum non conveniens, or comity grounds, nor in order to avoid
duplicative litigation. 225 A trial court acted within its discretion in finding
that a husband had the mental capacity to end his marriage because even
though the husband had been diagnosed with dementia, he was within the
statutory presumption of capacity to make a reasoned decision to end a
marriage and the court observed the husband's demeanor and mental state
first hand. 226
2.
FAULT AND
No
FAULT DIVORCE
A trial court's order divorcing a couple in a fault-based proceeding violated state law, because it was based only on their stipulation without any
proof of the grounds for divorce being presented or considered. 227 A
divorce court did not abuse its discretion in finding that spouses who had
accused each other of adultery and had each denied the other's accusation
failed to establish it and thus were not entitled to a divorce on that
ground. 228 In South Carolina, a trial court properly granted a divorce on
the basis of habitual drunkenness because the evidence showed the husband drank alcohol to excess on a regular basis during the latter part of
their marriage; became loud, rude, and verbally abusive when he drank
and behaved worse with every drink; refused to seek professional help;
and routinely went to bed drunk at 8:00 p.m. 229
K. Domestic Violence
A trial court acted within its discretion in renewing a domestic violence
restraining order against an ex-boyfriend based on evidence that he vio224.
225.
226.
227.
228.
229.
Zitkene v. Zitkus, 60 A.3d 322 (Conn. App. Ct. 2013).
In re Marriage of Murugesh and Kasilingam, 993 N.E.2d 1109 (Ill. App. Ct. 2013).
In re Marriage of Greenway, 158 Cal. Rptr. 3d 364 (Ct. App. 2013).
Dubose v. Dubose, 2013 WL 2451335 (Ala. Civ. App. 2013).
Fore v. Fore, 109 So. 3d 137 (Miss. Ct. App. 2013).
Curry v. Curry, 741 S.E.2d 558 (S.c. Ct. App. 2013).
A Review of the Year in Family Law
541
lated the restraining order by going to the ex-girlfriend's workplace to talk
with a friend who was experiencing a substance abuse relapse. 23o Illinois
upheld its prohibition against stalking, which was under attack as unconstitutionally vague.231 Absent exigent circumstance that prevents a petitioner's appearance, due process mandates that the trial court convene an
ex parte hearing prior to entering a temporary protection from abuse
order, rather than simply conduct in camera review of the petition. When
compared to the requirement that an alleged victim appear before the trial
court during an ex parte proceeding, the practice of relying upon the petitioner's verification and acknowledgment that any false statements are
subject to penalties is inadequate protection against fabricated allegations
of abuse. 232
A trial court was without authority to order the victim of domestic
abuse in a same-sex relationship to undergo a psychological evaluation,
even though it had the authority to refer her to a psychologist, because
requiring a victim of domestic violence to undergo a psychological evaluation would impose a substantial financial and emotional burden on the
victim and would have a chilling effect on victims of domestic violence
in seeking the protection of the courtS.233 As a coparent, an unwed father
could seek the disclosure of a mother's fictitious address, pursuant to
Nevada's fictitious address program for domestic violence victims, by
extraordinary writ. In determining whether to grant the writ, the district
court had to consider whether the mother could establish that the father
was a perpetrator of domestic violence, and if established, the burden
shifted to the father to show that, despite the domestic violence, disclosure
was in the child's best interest. 234 In a very interesting case, a District of
Columbia court was required to enforce a Maryland consent decree in
which the husband promised that he would "endeavor" to dismiss
his District protection order because the decree was entitled to full faith
and credit and, even if it was not, it should be enforced on the basis of
comity.235
L. Marriage
Same-sex marriage states nearly doubled from 2012-13. Same-sex
marriage is now allowed in California (2008,2013), Connecticut (2008),
Delaware (2014), the District of Columbia (2010), Hawaii (2014), Illinois
230.
231.
232.
233.
234.
235.
Lister v. Bowen, 155 Cal. Rptr. 3d 50 (Ct. App. 2013).
Nicholson v. Wilson, 993 N.E.2d 594 (Ill. App. Ct. 2013).
Ferko-Fox v. Fox, 68 A.3d 917 (Pa. Super. Ct. 2013).
Touchet v. Jones, 2013 WL 4224095 (Fla. Dist. Ct. App. Aug. 16,2013).
Falconi v. Sec'y State Nev., 299 P.3d 378 (Nev. 2012).
J.J. v. B.A., 68 A.3d 721 (D.C. 2013).
542
Family Law Quarterly, Volume 47, Number 4, Winter 2014
(2014), Iowa (2009), Maine (2012), Maryland (2012), Massachusetts
(2004), Minnesota (2014), New Hampshire (2010), New Jersey (2013),
New Mexico (2013), New York (2011), Rhode Island (2013), Vermont
(2009), and Washington (2012).
In Wisconsin, there is a distinction between a suit for an annulment and
a petition for a declaration of invalidity of a marriage. The latter can be
brought after the death of one of the parties to the marriage. 236 An Ohio
court found that the parties did not have a present agreement to marry in
praesenti as required to establish a common law marriage prior to the date
it was prohibited in Ohio. 237
M. Names
The New Jersey Supreme Court eliminated the presumption that a custodial parent's decision to change the surname of a child was presumptively in the child's best interest. In renaming disputes between parents
who agreed on a child's surname at birth but find themselves later in a dispute over whether to alter the child's surname, the standard to be applied
is the best interests of the child whether or not the parents were married at
the time of the child's birth. 238 A determination that changing child's
surname to include biological father's surname was in the best interest of
the child was adequately supported by trial court's findings that mother and
child no longer shared the same surname after mother married, that change
would strengthen the bond between father and son, and would ensure that
child bonded with father's family.239 In New Hampshire, name changes are
determined on a best-interest test without the use of presumptions. 24o
N. Parentage
Courts are still struggling with when to grant a request for genetic testing. In one case, where parentage was established by stipulation between
the mother and her male partner, the court entered a parentage order naming partner as the father. The court found the putative father did not have
standing to seek paternity establishment by genetic testing. 241 In another
case, the Virginia court found that the law providing that the parent-child
relationship may be established by genetic testing directly conflicts with
the assisted conception statute, which says mere donors cannot establish
236. In re Estate of Laubenheimer. 833 N.W.2d 735 (Wis. 2013) (alleging lack of mental
capacity).
237. Keefe v. Doomweerd, 984 N.E.2d 1105 (Ohio App. Ct. 2013).
238. Emma v. Evans. 71 A.3d 862 (N.J. 2013).
239. Riggins v. Stirgus, 738 S.E.2d 635 (Ga. Ct. App. 2013).
240. In re Goudeau, 55 A.3d 1008 (N.H. 2012).
241. Columbia v. Lawton, 71 A.3d 1218 (VI. 2013).
A Review afthe Year in Family Law
543
parentage. The unnamed female donor who is also the gestational mother
may be considered a parent. The fact that a sperm donor cannot establish
parentage is a result of biology, not insemination under choice. 242
The presumption of parentage statute, which did not require the listing
of a nonbirthing female spouse on birth certificate, violated equal protection under Iowa constitution as applied to a married lesbian couple. 243
Kansas found that a female same-sex partner was an interested party
under the Kansas Parentage Act and could claim to be a presumptive
mother under the Act. 244
The trial court clearly erred when it focused solely on biology, rather
than on the best interests of the child, when it overcame the presumption
of legitimacy and removed husband's rights as legal father of the child.
Even though he was not the child's biological father, he, along with mother, signed a voluntary acknowledgment of patemity.245 Biological father
abandoned his opportunity interest in developing parent-child relationship
with child born out of wedlock, such that granting of his petition for legitimation of child was an abuse of discretion. The father waited more than
four years after conclusively learning that child was his daughter before
deciding that he would like to have parent-child relationship with her and
filing petition. There was no evidence that any action by child's mother or
mother's family prevented him from filing petition earlier, and his own
voluntary commission of criminal acts resulted in eighteen months of
incarceration and residential drug treatment during which he was purportedly unable to contact mother. 246 The Illinois Supreme Court distinguished the presumptive right to visitation under the Marriage Act to preserve existing bonds from the "privilege" to visit under the Parentage
Act. 247
0. Property
1.
CLASSIFICATION OF PROPERTY
A divorce court erred in awarding a husband's taxicab owner's license
to his wife as a division of marital property since it was not really property of the husband. The court did not abuse its discretion in awarding his
taxicab to her. 248
242.
243.
244.
245.
246.
247.
248.
L.F. v. Breit, 736 S.E.2d 711 (Va. 2013).
Gartner v. Iowa Dep't of Public Health, 830 N.W.2d 335 (Iowa 2013).
Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013).
Van Weelde v. Van Weelde, 110 So. 3d 918 (Fla. Dist. Ct. App. 2013).
Neill v. Brannon, 738 S.E.2d 724 (Ga. Ct. App. 2013).
In re Parentage of I.W., 972 N.E.2d 826 (Ill. App. Ct. 2013).
Bahta v. Eqube, 2013 WL 1303521 (Ohio Ct. App. Mar. 29, 2013) (unpublished).
544
Family Law Quarterly, Volume 47, Number 4, Winter 2014
A husband's postdivorce waiver of his municipal pension in order to
receive tax-free disability benefits does not change the amount of money
he must pay his wife every month to effectuate the divorce decree's division of the pension. 249
Illinois has held that a nonvested discretionary bonus to be issued to the
husband after entry of the divorce did not constitute marital property
because it was a mere expectancy. The husband was an at-will employee
and all bonuses and awards were discretionary.25o A husband failed to
carry his burden, in action for divorce, of establishing what portion of personal injury settlement received by him was attributable to his personal
injuries, as required for finding that such portion constituted his separate
property. He presented no evidence establishing which portion of settlement was attributable to his personal injury, as opposed to loss of marital
earnings and any reimbursement for expenses paid from marital assets.
The evidence demonstrated that a portion of settlement monies were
meant to reimburse the parties for loss of marital earnings, compensation
for expenses paid from marital assets, and compensation for loss of consortium.251
Order denying allocation to husband of any portion of wife's share in
business she obtained with separate property to which husband devoted
labor and skill without compensation, was adequately supported. The
trial court's findings in the record were that all of wife's contributions to
business derived from her separate property. There was no evidence in
the record that husband's labor contributed to an increase in business's
value. 252
Settlement proceeds from a divorcing husband's tort action against his
former employer, which had commenced prior to the divorce proceeding
and was finalized before the end of it, were properly considered to be
marital property.253 A four-year military credit, which applied to a husband's California Public Employees' Retirement System (CalPERS)
benefits, was based on military service the husband completed prior to
the marriage. Thus, the credit was the husband's separate property,
except to the extent that the community contributed to the cost of obtaining the credit. 254
A third party who holds a partial legal title to the marital residence must
be joined as a party to the divorce action before the marital equity in the
249.
250.
251.
252.
253.
254.
Dickau v. Dickau, 824 N.W.2d 142 (Wis. Ct. App. 2012).
In re Marriage of Wendt, 995 N.E.2d 439 (Ill. App. Ct. 2013).
Barrientos v. Barrientos, 2013 WL 500505 (Ohio App. Ct. Feb. 11, 2013).
Devries v. Ga11io, 290 P.3d 260 (Nev. 2012).
Edwards v. Bonilla-Vega, 983 N.E.2d 619 (Ind. Ct. App. 2013).
In re Marriage of Green, 302 P.3d 562 (Cal. 2013).
A Review a/the Year in Family Law
545
house can be divided.255 Legal services provided to one spouse ill a
divorce proceeding are neither a community debt nor necessaries for
which the other spouse is statutorily liable to pay.256
2.
TRANSACTIONAL PROBLEMS
In Florida, when a wife jointly titles two burial plots she received from
a relative during her marriage, the plots are presumed to be marital property.257 Clear and convincing evidence existed to rebut a presumption that
husband intended to gift to the marital estate two properties purchased
with his separate funds for the benefit of his daughters from a previous
marriage, even though title was taken as joint tenants. The closing company in charge of handling the transaction erroneously placed the properties in joint tenancy, mortgagee testified that husband was to take title in
his individual name, sales contracts indicated buyer as husband's trust,
and wife did not dispute that properties were purchased with husband's
separate property. 258
The District of Columbia held that a trial court did not abuse its discretion in finding that a husband's separate real property that shared a
common wall with the marital home had been "transformed," such that
the two structures together were "marital property." The house located on
one parcel of land had been annexed to the contiguous marital home
through creation of a passageway enabling the family to use the two structures as a single dwelling. The marital home had been rebuilt without a
kitchen, a defect that meant it could not be used as a separate residence
without converting a room to a kitchen. 259
The court found that the right to receive trust distributions underwent
transmutation into marital property where the trust was created with the
intent to provide for the husband and wife for the rest of their lives and
distributions were deposited into an account and used for support during
the marriage. Husband attended yearly meetings discussing the performance of that account and the parties' anticipated future needs. The parties
intended from the time the trust was created to treat the right to receive
distributions as marital property.260
A gift from a third party is presumed to be a gift to the marriage. Clear
255. Graves v. Graves. 51 A.3d 521 (D.C. 2012). See also In re Muller, 62 A.3d 770 (N.H.
2013) (a divorce court has authority to divide the net equity in a couple's marital home, but it
does not have jurisdiction to disregard or invalidate a third party's claim of interest in such property).
256. Tedder v. Gardner Aldrich, 2013 WL 2150081 (Tex. May 17,2013).
257. McKee v. Mick, 120 So. 3d 162 (Fla. Dist. Ct. App. 2013).
258. Smith v. Villareal, 298 P.3d 533 (Okla. 2012).
259. Araya v. Keleta, 65 A.3d 40 (D.C. 2013).
260. Wilburn v. Wilburn, 743 S.E.2d 734 (S.c. 2013).
546
Family Law Quarterly, Volume 47, Number 4, Winter 2014
and convincing evidence is necessary to rebut the presumption. 261 The
court considers the following factors in determining whether to exempt a
spouse's gift or inheritance from division: (1) contributions of the parties
toward the property, its care, preservation or improvement; (2) the existence of any independent close relationship between the donor or testator
and the spouse of the one to whom the property was given or devised~ (3)
separate contributions by the parties to their economic welfare to whatever extent those contributions preserve the property for either of them; (4)
any special needs of either party; and (5) any other matter that would render it plainly unfair to a spouse or child to have the property set aside for
the exclusive enjoyment of the donee or devisee. The Iowa Supreme
Court found that the inherited property was given to the husband and wife
jointly.262
Vermont held that a court may return assets to a couple's marital estate
that were allegedly dissipated by one spouse if it finds that the expenditures involved financial misconduct coupled with a purpose unrelated to
the marriage 263
3. VALUATION AND DISTRIBUTION
Although marital property is normally valued as close to the date of the
divorce as possible, a Utah court found that when the increase in the husband's pension is primarily due to his employer's contributions post-separation, the trial court may value the pension as of the date of separation. 264 A divorce court erred when, in dividing the military pension of an
active duty servicemember, it used an amount based on the husband's pay
grade at the time of the dissolution instead of the actual value of his pension at the time of his projected retirement seven years after the divorce. 265
Trial court was justified in assigning a value of zero to husband's interests
in companies that owned either a hotel or land, all of which had a negative value, for purposes of equitable distribution of marital property in a
divorce case. Simply because companies' debts exceeded their assets at a
given point in time did not mean that the companies had a negative value,
nor did it mean that companies were incapable of generating profits or that
they did not have a positive cash flow capable of paying off any debt.
Instead, it merely showed that at the time of valuation, the companies had
more debt than assets.266
261.
262.
263.
264.
265.
266.
In re Krejci, 297 P.3d 1035 (Colo. App. 2013).
In re Marriage of McDennott, 827 NW.2d 671 (Iowa 2013).
Felis v. Felis, 72 A.3d 874 (Vt. 2013).
Donnelly v. Donnelly, 301 P.3d 6 (Utah Ct. App. 2013).
In re Malpass, 296 P.3d 653 (Or. Ct. App. 2013).
Patel v. Patel, 740 S.E.2d 35 (Va. Ct. App. 2013).
A Review of the Year in Family Law
547
Courts distribute the marital property based on numerous factors, with
length of the marriage and the relative positions of the parties among the
most important. The trial court acted within its discretion in dividing marital property so as to award the wife 53% and the husband 47% ofthe marital assets despite the husband's nonmarital contribution of $70,000
toward the parties' first home because the husband's economic situation
was much better than the wife's.267
In Virginia, the value of separate property is irrelevant to equitable distribution analysis. The court should not have awarded mother the marital
property retirement account just because father had separate retirement
property.268 In Virginia, a court need not divide property with a negative
equity but may leave the parties as tenants in common subject to foreclosure or sale. 269 Iowa determined the court could require the husband to
mortgage the family farm if he wished to keep it, rather than sell it, to
ensure the wife received her equity from the farm yo
A divorce court did not abuse its discretion in directing a husband to
pay his wife the value of her allotted portion of his accrued sick leave
benefits and vacation time when he chooses to retire rather than at the time
of the final divorce hearing.271 A North Dakota trial court's property division, which awarded the wife a share of the husband's entire business
property based on the percentage of time that the parties were married
during the husband's entire business career, was not clearly erroneous.272
In a divorce action, despite a lack of information and consequent inability to determine as of the date of dissolution the exact amount of wife's
share of husband's nonqualified, nonfunded retirement plan, trial court
did not abuse its discretion when it employed the present division method
of deferred distribution of husband's retirement plan, rather than the
reserved jurisdiction method. The division provided that if, and when,
husband retired, or otherwise began to receive benefits from the plan, a
coverture fraction would be applied to the entire benefit that was vested as
of the date of dissolution to determine the marital portion.273 A Texas
court held that a husband's Social Security benefits, though previously
received and at the time of divorce held in accounts, were exempt from
division in a divorce. 274 Court should consider the tax consequences aris267.
268.
269.
270.
271.
272.
273.
274.
Valentine v. Valentine, 400 SW.3d 14 (Mo. Ct. App. 2013).
Wiencko v. Takayama, 745 S.E.2d 168 (Va. Ct. App. 2013).
Fox v. Fox, 734 S.E.2d 662 (Va. Ct. App. 2012).
In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013).
Bergman v. Bergman, 2013 WL 784636 (Ohio Ct. App. Mar. 1,2013) (unpublished).
Hoverson v. Hoverson, 629 N.W.2d 573 (N.D. 2013).
Cunningham v. Cunningham, 59 A.3d 874 (Conn. App. Ct. 2013).
In re Marriage of Everse, 2013 WL 3362054 (Tex. App. June 18,2013) (unpublished).
548
Family Law Quarterly, Volume 47, Number 4, Winter 2014
ing from a divorce judgment when the tax consequences have been raised
and evidence is in the record.275
4.
ENFORCEMENT
The question of whether a man has standing to bring a contempt action
in order to compel his ex-wife to make certain payments on a marital debt
pursuant to their decree depends on whether he would be liable if she did
not make them.276 A provision in the divorce decree, ordering the former
wife "to assume and pay and hold [husband] harmless" from the mortgage
on the marital home, indemnified husband against liability. The wife's
obligation extended beyond simply making mortgage payments and
required the wife to fulfill the parties' joint obligations under the mortgage
so as to prevent other fiscal injury that might foreseeably befall the husband, such as the kind of damage to his credit rating that could result from
payments that are chronically late.277
Trial court lacked jurisdiction to modify a final judgment of dissolution
by increasing wife's percentage share of former husband's pension benefit
after he began receiving Social Security retirement payments and his pension benefit was reduced. Former wife's monthly pension benefit was
reduced. There was no indication in the final judgment that former wife
would receive an increased percentage share of pension in the event her
monthly pension benefit was reduced when former husband entered into
Social Security system. 278
Although wife accepted a cash portion of the distribution award that
was part of a stipulated judgment of divorce, it was not in satisfaction of
the judgment and wife could continue with appeal for postdecree motion
for reallocation of marital assets and debts.279
P. Torts
Husband, who worked for the same employer as wife, sued his employer and former supervisor for negligence and negligent infliction of emotional distress. Employer and former supervisor filed motions to dismiss
for failure to state a claim upon which relief could be granted. The court
held husband's claims were disguised claims for alienation of affections
and, thus, relief could not be granted on the claims. 280 When an ex-husband found out that he was not the biological father of his child, public
275.
276.
277.
278.
279.
280.
LJ.S. v. J.E.S., 982 N.E.2d 1160 (Mass. 2013).
Pinzone v. Pinzone, 2012 WL 6727339 (Ohio Ct. App. Dec. 24, 2012) (unpublished).
Gardner v. Gardner, 294 P.3d 600 (Utah Ct. App. 2012).
George v. George, 93 So. 3d 464 (Fla. Dist. Ct. App. 2012).
Sateren v. Sateren, 826 N.W.2d 303 (N.D. 2013).
Moseng v. Frey, 822 NW.2d 464 (N.D. 2012).
A Review of the Year in Family Law
549
policy did not preclude him from bringing an intentional fraud claim
against the ex-wife who had misrepresented that he was the biological
father. 281
IV. Conclusion
The biggest sea change has been in attitudes and laws applying to
same-sex couples. In 1996 when DOMA was enacted, 68% of Americans
opposed gay marriage. In June 2013, a Gallup Poll reported that 53%
favored gay marriage. 282 In addition to the Supreme Court's ruling striking part of DOMA, eight more states in 2012 and 2013 now allow samesex marriages. Many states, even red ones like Kansas, have recognized
coparenting agreements between same-sex couples if they are in the best
interest of children. While currently there are challenges to bans on samesex marriage in several federal courts, the next set of challenges will be
gaining recognition of these relationships in states that still prohibit them.
281. Hodge v. Craig, 382 S.W.3d 325 (Tenn 2012).
282. Richard Wolf & Brad Heath, Rainbow Rulings, USA TODAY, June 27, 2013, at AI, 2.
550
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Charts
Chart 1: Alimony/Spousal Support Factors
Statutory
STATE
Alabama
ALA. COOE § 30-2-51
ALA. CODE § 30-2-52
List*
Marital
Fault Relevant
X
Standard
of Living
X
Status as Custodial
Parent Considered
Alaska
ALASKA STAT. § 25.24.160
X
X
Xl
Arizona
X
X
X
Xl
Xl
ARIZ. REV. STAT. § 25-319
Arkansas
ARK. CODE ANN. § 9-12-312
California
CAL. FAM. CODE § 4320 thru 4326
CAL. FAM. CODE § 4336
CAL. FAM. CODE § 6211
X
X
X
Colorado
COLO. REV. STAT. § 14-10-114
X
X
X
Connecticut
X
X2
X
X
X
Xl
X
Xl
District of Columbia
D.C. CODE § 16-913
X
X2
X
Xl
Florida
FLA. STAT. § 61.08
X
X
X
X
Georgia
X
X
X
CONN. GEN. STAT. § 46B-82(A)
Delaware
DEL. CODE ANN. TIT. 13 § 1512
GA. CODE ANN. § 19-6-1
GA. CODE ANN. § 19-6-5
Hawaii
X
X
X
Xl
Xl
X
X
HAW. REV. STAT. § 580-47
Idaho
IDAHO CODE ANN. § 32-705
X
Illinois
X
X
750 ILL. CaMP. STAT. 51504
Indiana
X3
X
IND. CODE § 31-15-7-2
Iowa
X
Xl
X
X
X
X
IOWA CODE § 598.21 A
Kansas
KAN. STAT. ANN. § 23-2902
Kentucky
Ky. REv. STAT. ANN. § 403.200
X
Louisiana
X
X4
X
LA. CIv. CODE ANN. ART. 112
Maine
X
X
X
ME. REV. STAT. TIT. 19-A § 951-A
Maryland
MD. CODE ANN. FAM. LAW § 11-106
X
Massachusetts
MASS. GEN. LAWS. CH. 208 § 34
MASS. GEN. LAWS. CH. 208 § 48-55
X
X
X
Xl
Michigan
MICH. CaMP. LAWS § 552.23
Minnesota
X
X
Xl
Xl
X
X
MINN. STAT. § 518.552
X5
Mississippi
MIss. CODE ANN. § 93-5-236
Missouri
X
X
X
X
X
X
Mo. REV. STAT. § 452.315
Mo. REV. STAT. § 452.335
Montana
MONT. CODE ANN. § 40-4-203
X
A Review a/the Year in Family Law
STATE
Nebraska
NEB. REV. STAT. § 42-365
Nevada
NEV. REv. STAT. § 125.150
New Hampshire
N.H. REv. STAT. ANN. § 458:19
New Jersey
N.J. STAT. ANN. § 2A:34-23
New Mexico
N.M. STAT. ANN. § 40-4-7
New York
N.Y. DOM. REL. LAW § 236B(6)
North Carolina
N.C. GEN. STAT. § 50-16.3A
North Dakota
N.D. CENT. CODE § 14-05-24.1
Ohio
OHIO REV. CODE ANN. § 3105.18
Oklahoma
OKLA. STAT. TIT. 43 § 121
Oregon
OR. REv. STAT. § 107.105
Statutory
List*
Marital
Fault Relevant
X
Standard
of Living
Status as Custodial
Parent Considered
X
X
X
X
X
X
X
X
X
X
X
X6
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Pennsylvania
23 PA. CONS. STAT. ANN. § 3701
X
X
X
Xl
Rhode Island
R.1. GEN. LAWS § 15-5-16
South Carolina
S.C. CODE ANN. § 20-3-130
South Dakota
S.D. CODIFIED LAWS § 25-4-41
Tennessee
TENN. CODE ANN. § 36-5-121
Texas
TEX. FAM. CODE ANN. § 8
Utah
UTAH CODE ANN. § 30-3-5
Vermont
VT. STAT. ANN. TIT. 15 § 752
Virginia
VA. CODE ANN. § 20-107.1
Washington
WASH. REV. CODE § 26.09.090
West Virginia
W. VA. CODE § 48-6-301
W. VA. CODE § 48-8-104
Wisconsin
WIS. STAT. § 767.56
Wyoming
Wyo. STAT. ANN. § 20-2-114
X
X
X
X
X
X
X
X
X"
X
X
X
X
X
X
X
X
X
X
X'
X
X
X
X
X
X
X
X
X
X
X
X
551
X
X
X
X
X
X
X
X
X
* Although there is a statutory list of factors, the court may in its discretion consider other factors under the
particular circumstances of the case.
1. This factor may not be in the list of statutory factors but may be considered because the court may look at any
relevant factors in the individual case, including the financial obligations of each party.
2. The court can consider the causes or circumstances leading to the dissolution of the marriage.
3. Status as custodial parent is considered if the parent is required to forgo employment because of the child's
mental or physical incapacity.
4. Only fault on the part of the party seeking alimony.
5. See Armstrong v. Armstrong, 618 So. 2d 1278 (Miss. 1993) for list of factors used in determining alimony.
6. Fault is only relevant in limited circumstances.
7. See case law for list of factors. E.g., Anderson v. Anderson, 655 N.W.2d 104 (S.D. 2002).
8. The Utah legislature has defined "fault" as: (c) Fault means any of the following wrongful conduct during the
marriage that substantially contributed to the breakup of the marriage relationship: (i) engaging in sexual relations
with a person other than the party's spouse; (ii) knowingly and intentionally causing or attempting to cause physical
harm to the other party or minor children; (iii) knowingly and intentionally causing the other party or minor children
to reasonably fear life-threatening harm; or (iv) substantially undermining the financial stability of the other party of
the minor children. (d) The court may, when fault is at issue, close the proceedings and seal the court records.
552
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 2: Custody Criteria*
Joint
Custody
Presumption in
Favor of
Cooperative Domestic
Authorized Joint Custody
Parent
Violence*"'*
Attorney
Statutory
Factors**
Child's
Wishes
Alabama
ALA. CODE § 30-3-131
ALA. CODE § 30-3-152
X
Xl
X
X2
X
X
Alaska
ALASKA
ALASKA
ALASKA
ALASKA
X
X
X
X3
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
Colorado
COLO. REv. STAT. § 14-10124
X
X
X4
X
X
X
Connecticut
CONN. GEN. STAT. § 46B-54
CONN. GEN. STAT. § 46B-56
X
X
X
X
X
X
Delaware
X
X
X
X
X
X
District of Columbia
D.C. CODE § 16-914
X
X
X
X
X
X
Florida
FLA. STAT. § 61.13
FLA. STAT. § 61.401
X
X
X
X
X
X
Georgia
GA. CODE ANN. § 19-9-3
X
X
X
X
X
Hawaii
X
X
X
X
X
Idaho
IDAHO CODE ANN. § 32-704
IDAHO CODE ANN. § 32-717
IDAHO CODE ANN. § 32-717B
X
X
X
X
X
Illinois
750 ILL. CaMP. STAT. 5/601
750 ILL. CaMP. STAT. 51602
750 ILL. CaMP. STAT. 5/602.1
X
X
X
X
X
STATE
STAT.
STAT.
STAT.
STAT.
or
GAL"'*"''''
§ 25.20.060
§ 25.20.070
§ 25.20.090
§ 25.24.150
Arizona
ARIZ. REV. STAT. § 25-321
ARIZ. REV. STAT. § 25-403
Arkansas
ARK. CODE ANN. § 9-13- 101
California
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
X4
§ 3010
§ 301 I
§ 3020
§ 3027
§ 3027.5
§ 3028
§ 3030.5
§ 3031
§ 3040
§ 304 I
§ 3041.5
§ 3042
§ 3044
§ 3046
§ 3047
§ 3048
§ 3064
§ 3080
§ 3081
§ 3085
§ 3120
§ 3150
§ 6323
X2
DEL. CODE ANN. TIT. 13 § 721
DEL. CODE ANN. TIT. 13 § 722
X5
HAW. REV. STAT. § 571-46
X
X
A Review afthe Year in Family Law
Joint
Statutory Child's
Factors** Wishes
STATE
Custody
Authorized
Indiana
IND. CODE § 31-17-2-8
IND. CODE § 31-17-2-15
IND. CODE § 31-17-6-1
X
X
X
Iowa
IOWA CODE § 598.12
IOWA CODE § 598.41
X
X
X
Kansas
KAN. STAT. ANN. § 23-2219
KAN. STAT. ANN. § 23-3203
KAN. STAT. ANN. § 23-3206
X
X
X
Kentucky
Ky, REV. STAT. ANN. §
403.270
X
X
X
X
X
X
X
X
X4
X7
Louisiana
LA. elV. CODE ANN. ART.
Presumption in
Cooperative Domestic
Favor of
Joint Custody
Parent
Violence***
553
Attorney
or
GAL****
X
X
X
X
X
X
X
X
X
X6
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
131
132
134
LA. REv. STAT. ANN. 9:345
LA. REv. STAT. ANN. 9:364
LA. CIv. CODE ANN. ART.
LA. elV. CODE ANN. ART.
Maine
ME. REv. STAT. TIT. 19-A
§ 1507
ME. REv. STAT. TIT. 19-A
§ 1653
Maryland
MD. CODE ANN. PAM. LAW
§ 9-101.1
MD. CODE ANN. PAM. LAW
§ 1-202
MD. CODE ANN. PAM. LAW
§ 5-203
Massachusetts
MASS. GEN. LAWS CH. 208
§ 28
MASS. GEN. LAWS CH. 208
§ 31
MASS. GEN. LAWS CH. 208
§ 31A
MASS. GEN. LAWS CH. 209C
§1O
MASS. GEN. LAWS CH. 215
§56A
X
Michigan
MICH. COMPo LAWS § 722.23
MICH. COMPo LAWS § 722.24
MICH. COMPo LAWS § 722.26A
X
X
X
Minnesota
X
X
X
X2
X8
X
X2
X
X
X9
X
X
X
§ 518.17
MINN. STAT. § 518.165
MINN. STAT.
Mississippi
MISS. CODE ANN. § 93-5-23
MISS. CODE ANN. § 93-5-24
Missouri
Mo. REv.
Mo. REv.
Mo. REV.
Mo. REV.
STAT.
STAT.
STAT.
STAT.
X
§ 452.375
§ 452.385
§ 452.410
§ 452.423
Montana 10
MONT. CODE ANN. § 40-4205
MONT. CODE ANN. § 40-4212
554
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 2: Custody Criteria* (continued)
Joint
Statutory Child's
Factors"'''' Wishes
STATE
Presumption in
Favor of
Cooperative Domestic
Authorized Joint Custody
Parent
Violence"'**
Custody
Nebraska
NEB. REv. STAT. § 42-358
NEB. REv. STAT. § 42-364
NEB. REv. STAT. § 43-2923
X
X
X
Nevada
NEV. REv. STAT. § 125.480
NEV. REv. STAT. § 125.510
X
Xll
X
New Hampshire
N.H. REv. STAT. ANN.
§ 461-A:6
X4
X
New Jersey
N.J. STAT. ANN. § 9:2-4
X
New Mexico
N.M. STAT. ANN. § 40-4-8
N.M. STAT. ANN. § 40-4-9
N.M. STAT. ANN. § 40-4-9.1
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
New York
N.Y. DOM. REL. LAW § 240
XI2
North Carolina
N.C. GEN. STAT. § 50-13.1
N.C. GEN. STAT. § 50-13.2
X13
X
X
Attorney
or
GAL"''''**
X
X
North Dakota
N.D. CENT. CODE § 14-09-06.2
N.D. CENT. CODE § 14-09-06.4
X
X
X
X
X
X
Ohio
OHIO REV. CODE ANN.
§ 3109.04
X4
X
XI4
X
X
X
X
X14
X
X
X
Oklahoma
OKLA. STAT. TIT. 43 § 109
OKLA. STAT. TIT. 43 § 112
Oregon
OR. REV. STAT. § 107.137
X
X 15
X I6
X
X
Pennsylvania
23 PA. CONS. STAT. ANN.
§ 5328
23 PA. CONS. STAT. ANN.
§ 5334
X
X
X
X
X
X
XI7
X
XI7
X
X
X
X
X
X
XI8
X
X
X
X
X
XI4
X
X
X 20
X 21
X
X
X
X
X
X
X
Rhode Island
R.I. GEN. LAWS § 15-5-16
R.I. GEN. LAWS § 15-5-16.2
South Carolina
S.c. CODE ANN.
S.c. CODE ANN.
S.c. CODE ANN.
S.C. CODE ANN.
§ 63-3-530
§ 63-3-810
§ 63-15-30
§ 63-15-40
South Dakota
S.D. CODIFIED LAWS §
25-4-45
Tennessee
X
X
TENN. CODE ANN. § 36-4-132
TENN. CODE ANN. § 36-6-101
TENN. CODE ANN. § 36-6-106
Texas
TEX. FAM. CODE ANN.
§ 107.002
TEX. FAM. CODE ANN. § 153
Utah
UTAH CODE ANN.
UTAH CODE ANN.
UTAH CODE ANN.
UTAH CODE ANN.
X
§
§
§
§
30-3-10
30-3-10.02
30-3-10.10
30-3-11.2
X
A Review of the Year in Family Law
STATE
Statutory Child's
Factors*'" Wishes
Joint
Custody
Presumption in
Favor of
Cooperative Domestic
Authorized Joint Custody
Parent
Violence"''''*
555
Attorney
or
GAL***'"
Vermont
VT. STAT. ANN. TIT. 15
§ 594; 665; 665A
X
X22
X
X
X
X
Virginia
VA. CODE ANN.
§ 20-124.2; 20-124.3
X
X
X
X
X
X23
Washington
WASH. REv. CODE § 26.09.013
WASH. REV. CODE § 26.09.187
WASH. REV. CODE § 26.09.220
X
X
X
X
X
X
West Virginia
W. VA. CODE § 48-6-206
W. VA. CODE § 48-9-209
W. VA. CODE § 48-9-302
X
X
X
X
X
X
Wisconsin
WIS. STAT. § 767.41
WIS. STAT. § 767.407
X
X
X
X
X
X
Wyoming
WYO. STAT. ANN. § 20-2-201
X
X 2•
X
X
X
x
* The chart looks at child custody detenninations during a divorce or separation. The statutes cited do not necessarily affect child custody decisions in other situations.
** Although there is a statutory list of factors, the court may in its discretion consider other factors under the
particular circumstances of the case.
*** The jurisdiction has enacted a statute pennitting the consideration of domestic violence in conjunction with child
custody. The statutes vary from making domestic violence a factor in custody determinations, to imposing presumptions against custody in batterers or imposing special procedural considerations in cases inv01ving domestic violence.
**** This column indicates whether a state has statutory authority for appointment of a guardian ad litem or attorney
for a child specifically in child custody cases.
I. By case law. See, e.g., Naudit v. Haddock, 882 So. 2d 364 (Ala. Civ. App. 2003).
2. There is a presumption that joint custody is in the best interest of the child if both parents request joint custody.
3. Presumption in favor of joint physical custody during the pendency of a divorce, unless there has been DV or it
is not in the best interest of the child. "Weak" presumption in favor of joint legal custody, according to our supreme
court, (but not if there has been DV or the parties cannot communicate effectively (the latter by case law).
4. Does not use the term "child custody," but instead uses the terminology, such as "parental responsibilities and
rights," "legal custodian," or other similar terminology.
5. Fla. Stat. § 61.13(2)(c)(2)-"The court shall order the parental responsibility for a minor child be shared by both
parents unless the court finds that shared parental responsibility would be detrimental to the child."
6. Domestic violence is not addressed in the statute but has been considered by courts as a factor in case law.
7. By case law. See, e.g., Hild v. Hild, 157 A.2d 442 (Md. 1960); Wagner v. Wagner, 674 A.2d I (Md. Ct. Spec.
App. 1996); Montgomery Cnty. Dep't of Soc. Services v. Sanders, 381 A.2d 1154 (Md. Ct. Spec. App. 1977).
8. Factors considered in custody decisions are listed in case law. See Albright v. Albright, 437 So. 2d 1003, 1005
(Miss. 1983).
9. Public policy encourages participation of both parents in decisions, and statute directs that "the court shall determine the custody arrangement which will best assure both parents participate in such decisions ... so long as it is in
the best interests of the child." This statute, however, does not create a presumption in favor of joint custody. In re
Marriage of Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 2007 Mo. App. LEXIS 1661 (Mo. Ct. App. 2007).
10. In Montana, the words "custody," "joint," "primary parent," or "visitation" are not used when referring to child
custody. Parents are considered to have identical rights as to the child, but their parenting times may differ.
II. Nevada will consider a child's wishes, among other factors, if the child is of sufficient age and capacity to fonn
an intelligent preference as to custody.
12. By case law. See Gant v. Higgins, 203 A.D.2d 23 (N.Y. App. Div. 1994).
13. By case law. See, e.g., Harris v. Harris, 115 N.C. 587 (1894); Brooks v. Brooks, 184 S.E.2d 417 (N.C. Ct. App.
1971).
14. Uses the term "shared parenting."
15. By case law. See In re Marriage of Tuttle, 660 P.2d 196 (Or. Ct. App. 1983).
16. The court may only order joint custody if both agree to joint custody. The court may not order joint custody over
the objection of either parent.
17. By case law. See, e.g., Africano v. Castelli, 837 A.2d 721 (R.I. 2003); Pettinato v. Pettinato, 582 A.2d 909 (R.!.
1990).
18. See Price v. Price, 61IN.W.2d 425 (S.D. 2000).
19. It is presumed that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or agree to joint custody in open court.
20. By case law. See Vazquez v. Vazquez, 292 S.W.3d 80 (Tex. App. 2007).
21. Texas uses the language "sale or joint managing conservator" rather than "sale or joint custody."
22. By case law. The court is not required or forbidden to consider the preference of the child. See Cameron v.
Cameron, 398 A.2d 294 (Vt. 1979).
23. Discussed further in Verrocchio v. Verrocchio, 429 S.E.2d 482 (Va. Ct. App. 1993).
24. By case law. See JRS v. GMS, 90 P.3d 718 (Wyo. 2004).
556
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 3: Child Support Guidelines
Extraordinary
STATE
Alabama
ALA. CODE § 30·3·1
Income
Share
Percent
of Income
X
Medical
Deduction
XP
Child·Care
Deduction
College
Support'
XM
Shared
Parenting
Time OITset2
D
XM
X
D
XM
XP
0
XD
XD
0
X
XM
XM
0
X
XM
XM
0
X
XD
X
Alaska
ALASKA STAT. § 25.27.060
Arizona
ARIZ. REV. STAT. ANN. § 25·320
Arkansas
ARK. CODE ANN. § 9·12·312
ARK. CODE ANN. § 9·14·106
California
CAL. FAM. CODE § 3585
CAL. FAM. CODE § 4001
CAL. FAM. CODE § 4050
CAL. FAM. CODE § 4076
Colorado
COLO. REv. STAT. § 14·10·115
Connecticut
CONN. GEN. STAT. § 466-81
X
X
D
XM
XM
D
DEL. CODE ANN. TIT. 13 § 1513
District of Columbia
D.C. CODE § 16·916.01
X
XD
X
0
Florida
X
XP
XM
X
XP
XM
X
XM2
X
Delaware
FLA. STAT. § 61.30
Georgia
GA. CODE ANN. § 19·6·15
Hawaii
HAW. REV. STAT. § 571·52.5
HAW. REv. STAT. § 576·07
Idaho
IDAHO CODE ANN. § 32·706
X
X
Dlinois
XP
XP
XD
XD
XP
D
X
D
0
0
X
D
XM
X
0
XM
X
0
750 ILL. CaMP. STAT. 5/505
Indiana
X
IND. CODE § 31·16·6·1
Iowa
X
IOWA CODE § 598.21
Kansas
KAN. STAT. ANN. § 38·1595
X
Kentucky
X
XM
Ky. REV. STAT. ANN. § 403.212
Louisiana
LA. RS. § 9:315
X
XM
XM
D
Maine
X
XM
XM
0
XM
D
XP
0
ME. REv. STAT. ANN. TIT. 19 § 2007
Maryland
MD. CODE ANN. FAM. L. § 12·204
Massachusetts
MASS. GEN. LAWS CH. 208 § 28
Michigan
MICH. CaMP. LAW § 722.27
Minnesota
MINN. STAT. §§ 518A.26·.78
Mississippi
MISS. CODE ANN. § 43·19·101
Missouri
X
XM
XM
0
X
XM
X
0
X
XM
XM
0
XM
0
X
X
X
Mo. REv. STAT. § 452.340
Mo. REv. STAT. § 452.370
Montana
MONT. CODE ANN. § 40-4·204
Nebraska
NEB. REv. STAT. § 42·364
Nevada
NEV. REV. STAT. § 125B.070
NEV. REv. STAT. § 125B.080
New Hampshire
N.H. REv. STAT. § 458·C:3
N.H. REV. STAT. § 458·C:5 I(a)
New Jersey
X
X
XD
XD
X
D
X
X
X
D
XM
XM
0
XD
XM
D
X
XM
XD
0
X
X
X
X
D
X
X
0
X
N.J. STAT. ANN. § 2A:34·23
New Mexico
N.M. STAT. ANN. 1978 § 40·4·1l.l
X
X
XD
0
A Review afthe Year in Family Law
Income
Share
STATE
New York
Percent
of Income
X
Extraordinary
Medical
Child-Care
Deduction
Deduction
XM
XM
XM
College
Support l
557
Shared
Parenting
Time Offset2
D
DOM. REC. § 240
North Carolina
N.C. GEN. STAT. ANN. § 50-13.4
North Dakota
N.D. CENTURY CODE ANN.
§ 14-09-09.7
Ohio
OHIO ST. § 3119
Oklahoma
OKLA. STAT. TIT. 43, § 118
Oregon
OR. REV. STAT. § 107.108
Pennsylvania
PA. R. CIv. P. § 1910.16-1
PA. R. CIv. P. § 1910.16-6
23 PA. CONS. STAT. ANN. § 4322
Rhode Island
R.L GEN. LAWS § 15-5-16.2
South Carolina
S.c. CODE ANN. § 20-3-160
South Dakota
S.D. CODIFIED LAW § 25-7-6.2
X
X
XM
X
0
X
X
X
D
X
XA
XM
0
X
XP
XM
X
X MID
XM
0
X
XD
XM
0
X
XD
XM
0
X
XD
XD
0
Tennessee
TENN. CODE ANN. § 36-5-10 1
Texas
TEx. PAM. CODE ANN. § 154.121
Utah
UTAH CODE ANN. § 30..3-5
X
XM
XM
XD
D
X
XM
XMJP
0
Vermont
X
XM
XM
0
X
X
X
0
04
VT. STAT. ANN. TIT. 15 § 654
Virginia
X
XA
XA
X
XM
XM
0
VA. CODE ANN. § 20-108.2
Washington
X
D
WASH. REv. CODE § 26.09.170
West Virginia
W. VA. CODE § 48-6-301
XM
XM
0
X
XM
XD
0
X
XD
XD
0
X
Wisconsin
WIS. STAT. § 767.57
Wyoming
WYo.
WYO.
WYO.
WYO.
STAT.
STAT.
STAT.
STAT.
X
ANN.
ANN.
ANN.
ANN.
§ 20-2-304
§ 20-2-305
§ 20-2-307
§ 20-2-401
A =mandatory add-ons
M = mandatory deduction
P = permissive deduction
D = deviation factor
1. In all states, college support may be voluntarily agreed by the parties, in which case it is
contractually enforceable thereafter.
2. Every state provides for some kind of offset, either by formula or deviation. D =deviation,
0= offset.
3, Credit given for actual cost of health care insurance premium paid for children.
4. Support may be increased or decreased if the obligor spends more or less than 80 days (the
putative normal amount of time) with a child.
558
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 4: Grounds for Divorce and Residency Requirements*
STATE
No Fault
No Fault
Added to
Sole Ground
Traditional
Living
Separate
Incompatibility and Apart
Alabama
ALA. CODE § 30·2·1
ALA. CODE § 30·2·2
ALA. CODE § 30·2·5
X
X
Alaska
ALASKA STAT. § 25.24.050
X
X
Xl
X
Xl
X2
Arizona
X
2 years
Durational
Residency
Judicial
Separation Requirements**
X
6 months
None
X
90 days
x
60 days
ARIZ. REV. STAT. ANN. § 25·312
ARIZ. REV. STAT. ANN. §25·313
ARIZ. REV. STAT. ANN. § 25·903
Arkansas
18 months
ARK. CODE ANN. § 9·12·301
ARK. CODE ANN. § 9·12·307
California
CAL.
CAL.
CAL.
CAL.
FAM.
FAM.
FAM.
FAM.
CODE
CODE
CODE
CODE
§
§
§
§
X
Xl4
X
6 months
X
Xl
X
91 days
2310
2311
2312
2320
Colorado
COLO. REV. STAT. § 14·10·106
COLO. REv. STAT. § 14·10·110
Connecticut
CONN. GEN. STAT. § 46BAO
CONN. GEN. STAT. § 46BA4
X
X
18 months
X
12 months
Delaware
DEL. CODE ANN. TIT. 13 § 1503
thru § 1505
X
X
6 months
X
6 months
6 months
X
6 months
X
6 months
District of Columbia
D.C. CODE § 16·902
D.C. CODE § 16·904
X
Florida
FLA. STAT. § 61.021
FLA. STAT. § 61.052
X
or 1 year4
Georgia
GA. CODE ANN. § 19·5·2
GA. CODE ANN. § 19·5·3
Hawaii
HAW.
HAW.
HAW.
HAW.
REV.
REV.
REV.
REV.
X
X
X
STAT.
STAT.
STAT.
STAT.
6 months
X
X
2 years
Idaho
IDAHO CODE ANN. § 32·603
IDAHO CODE ANN. § 32·610
IDAHO CODE ANN. § 32·701
X
X6
5 years
Illinois
750 ILL. CaMP. STAT. 5/401
750 ILL. CaMP. STAT. 5/402
X
X6
2 years or
6 months 7
Indiana
X
IND.
IND.
IND.
IND.
CODE
CODE
CODE
CODE
X
6 months
§ 580·1
§ 580Al
§ 580·42
§ 580·71
6 weeks 5
X
90 days
X
X
6 months 8
X
X
None9
X
X
60 days
X
180 days
§ 31·15·2·2
§ 31·15·2·3
§ 31·15·2·6
§ 31·15·2·7
Iowa
X
IOWA CODE § 598.5
IOWA CODE § 598.17
Kansas
KAN. STAT. ANN. § 23·2701
KAN. STAT. ANN. § 23·2703
Kentucky
Ky. REV. STAT. ANN. § 403.050
Ky. REv. STAT. ANN. § 403.140
Ky. REV. STAT. ANN. §403.170
X
X
X
60 dayslO
A Review afthe Year in Family Law
No Fault
STATE
Louisiana
LA. CIv. CODE ANN.
LA. CIv. CODE ANN.
LA. CIv. CODE ANN.
No Fault
Added to
Sole Ground
Traditional
Living
Separate
Incompatibility and Apart
Xl
ART.
ART.
ART.
180 days
orl
yearl,ll
102
103
103.1
X
Maine
X
559
Durational
Judicial
Residency
Separation Requirements**
Xl2
None
X
6 months
X
I year
ME. REV. STAT. ANN. TIT.
19-A § 901
ME. REV. STAT.
19-A § 902
ANN. TIT.
Maryland
MD. CODE ANN. FAM. L. § 7-101
tbru § 7-103
X
Massachusetts
MASS. GEN. LAWS CH. 208 § I
MASS. GEN. LAWS CH. 208 § IA
MASS. GEN. LAWS CH. 208 § IB
MASS. GEN. LAWS CH. 208 § 2
X
12 months
I year l3
X
Michigan
MICH. COMPo LAW § 552.6
MICH. COMPo LAW § 552.7
MICH. COMPo LAW § 552.9
X
Xl4
X
180 days
Minnesota
MINN. STAT. §518.06
MINN. STAT. §518.07
X
X
X
180 days
X
Mississippi
MISS. CODE ANN. § 93-5-1
MIss. CODE ANN. § 93-5-2
MIss. CODE ANN. § 93-5-5
Missouri
Mo. REV. STAT. § 452.305
Mo. REV. STAT. § 452.320
X l5
6 months
X I6
Montana
MONT. CODE ANN. § 40-4-104
MONT. CODE ANN. §40-4-105
X
X
Nebraska
NEB. REV. STAT. § 42-349
NEB. REV. STAT. § 42-350
NEB. REV. STAT. § 42-353
X
X
180 days
X
90 days
X
90 days
X
I year
XI7
X
1 year lS
X
X
2 years
X
I year
New Jersey
N.J. STAT. ANN. § 2A:34-2
N.J. STAT. ANN. § 2A:34-3
N.J. STAT. ANN. § 2A:34-10
X
X I9
18 months2O
X
I year
New Mexico
N.M. STAT. ANN. § 40-4-1
N.M. STAT. ANN. § 40-4-2
N.M. STAT. ANN. § 40-4-5
X
X
New
N.Y.
N.Y.
N.Y.
X
X21
Nevada
NEV. REV. STAT. § 125.010
NEV. REV. STAT. § 125.020
NEV. REV. STAT. § 125.190
New
N.H.
N.H.
N.H.
N.H.
Hampshire
REv. STAT. § 458:5
REV. STAT. § 458:7
REV. STAT. § 458:7-A
REV. STAT. § 458:26
York
DOM. REL. § 170
DOM. REL. § 200
DOM. REL. § 230
North Carolina
N.C. GEN. STAT. ANN. § 50-6
N.C. GEN. STAT. ANN. § 50-7
X
6 weeks
6 months
I year22
X
I year/
2 years23
1 year
X
6 months
560
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 4: Grounds/or Divorce and Residency Requirements * (continued)
No Fault
STATE
Sole Ground
North Dakota
N.D. CENTURY CODE ANN.
§ 14-05-03 thru § 14-05-09
N.D. CENTURY CODE ANN.
§ 14-05-17
Ohio
OHIO ST.
OHIO ST.
OHIO ST.
OHIO ST.
§
§
§
§
No Fault
Added to
Traditional
Living
Separate
Judicial
Durational
Residency
Incompatibility and Apart Separation Requirements**
X
X
X
6 months
X'4
X25
X
6 months
X
X
X
6 months
X
X
6 months
I year
3105.01
3105.03
3105.17
3105.61-65
Oklahoma
OKLA. STAT. TIT. 43 § 101 thru
43 § 103
Oregon
OR. REV. STAT. § 107015
OR. REV. STAT. § 107.025
OR. REV. STAT. § 107.075
X 26
Pennsylvania
X
X
2 years
X
X
3 years
6 months
23 PA. CONS. STAT. ANN. 3301
23 PA. CONS. STAT. ANN. 3104
Rhode Island
R.l. GEN. LAWS
R.l. GEN. LAWS
R.l. GEN. LAWS
R.l. GEN. LAWS
§
§
§
§
X
1 year
15-5-2
15-5-3
15-5-3.1
15-5-12
I year!3 months 27
South Carolina
S.c. CODE ANN. § 20-3-10
S.c. CODE ANN. § 20-3-30
X
South Dakota
S.D. CODIFIED LAW § 25-4-2
S.D. CODIFIED LAW § 25-4-17.2
S.D. CODIFIED LAW § 25-4-30
X
X
X
X
2 years
Texas
TEX. FAM. CODE ANN. § 6.001
thru § 6.007
TEX. FAM. CODE ANN. § 16.301
X
X
3 years
Utah
UTAH CODE ANN. § 30-3-1
UTAH CODE ANN. § 30-3-4.5
X
X
3 years
X
3 months
Vermont
X
6 months
X
6 months!
Tennessee
TENN. CODE ANN.
X
I year
X
None
X
6 months
§ 36-4-101
thru § 36-4-104
6 months
1 year28
VT. STAT. ANN. TIT 15 § 551
VT. STAT. ANN. TIT IS § 555
VT. STAT. ANN. TIT IS § 592
1 year29
X
Virginia
6 months
Va. Code ANN. § 20-91
VA. CODE ANN. § 20-97
Washington
WASH. REV. CODE § 26.09.030
West Virginia
W. VA. CODE § 48-5-103
W. VA. CODE § 48-5-105
W. VA. CODE § 48-5-201 thru
§ 48-5-209
W. VA. CODE § 48-6-201
Wisconsin
WIS. STAT. § 767.301
WIS. STAT. § 767.315
Wyoming
WYo. STAT. ANN. § 20-2-104
thru § 20-2-107
X' 5
X
X
X
X
X
None
X
1 year
X
I year
X3()
12 months
X
6 months
X
60 days
X
A Review afthe Year in Family Law
561
* Some states require the parties to wait for a specified period of time before they can file their
first pleading in the divorce case. Of those states, some require an additional waiting period after the
filing of the first pleading before the judgment can be entered, whereas other states allow the judgment to be entered almost immediately after the filing of the first pleading in the case. Other states
make the parties wait for a specified period of time after filing the initial pleading but have no additional "waiting" requirement after the petition/complaint has been filed.
** State residency time period required before the filing of a divorce petition.
1. Covenant marriage statutes establish specific grounds for divorce for covenant marriages.
2. Arkansas uses the term "general indignities" rather than "incompatibility."
3. Colorado's only ground for divorce is the no-fault claim of the irretrievable breakdown of the
marriage. Colorado does not use the term "incompatibility."
4. Six months if the parties have mutually and voluntarily lived separately and apart, otherwise
they must have lived separately and apart for one year.
5. Petitioner must be a resident for six weeks.
6. Uses the term "irreconcilable differences," rather than the term "incompatibility."
7. Requirement of two years' living separate and apart can be waived if parties have lived separate and apart for six months and both stipulate in writing.
8. Must have been a resident of the state for six months and a resident of the county for three
months.
9. No durational residency requirement if Respondent is in Iowa, but there is a one-year residency requirement if only Petitioner is in Iowa.
10. Parties can obtain a divorce based on irretrievable breakdown, but only if the parties have
been living separate and apart for at least sixty days.
11. One year if there are minor children.
12. Judicial separation only exists for covenant marriage.
13. One year residence required depending on the grounds for divorce.
14. The term "breakdown of the marriage relationship" is used rather than "incompatibility."
15. Available as grounds for divorce if petition is filed jointly.
16. Grounds for divorce under Mo. Rev. Stat. § 452.305 is "irretrievably broken." However, if
one party denies this allegation, the petitioner must satisfy the court that one of five enumerated
grounds exist for a finding of irretrievably broken. Those grounds are adultery that the petitioner cannot tolerate, respondent has "behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent," abandonment for six months, and separation for twelve months (if by
consent) or twenty-four months (nonconsensual separation). Mo. REV. STAT. § 452.320.
17. Grounds for divorce are limited to three situations.
18. Living separate for one year is not required if the petitioner pleads incompatibility.
19. New Jersey requires that irreconcilable differences cause the breakdown of the marriage for
six months.
20. Only required for some grounds for divorce.
21. New York requires that the marriage has broken down irretrievably for a period of at least
six months and one party has so stated under oath.
22. New York requires that the parties live separate and apart after the execution of a written separation agreement.
23. New York permits jurisdiction if both parties and the cause of action occurred in the state.
It requires one year of residency if the parties were married in the state or resided in the state as husband and wife. At least one party must have resided in state if the parties were not married in the state.
24. Ohio does not use the term "no fault divorce." There is a separate cause of action called
dissolution, which requires no allegation of grounds.
25. Incompatibility is a ground for divorce and for legal separation, but only if there is no objection from the opponent.
26. Fault is not a factor unless it is associated with waste of marital assets, i.e .. , gambling, chemical abuse, etc.
27. South Carolina's one-year residency requirement only applies where the plaintiff is a resident, but the defendant is not. If both parties are residents of South Carolina, the durational requirement is three months.
28. Vermont law states either party to the marriage has resided within the state for a period of six
months or more, but a divorce shall not be decreed for any cause, unless the plaintiff or the defendant
has resided in the state one year preceding the date of final hearing.
29. Only six months is required for couples that have a separation agreement and no minor
children.
30. Wisconsin uses the term "irretrievable breakdown."
562
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 5: Property Division
Only MaritaV
Community
Community
Property
STATE
Alabama
ALA. CODE § 30-2-51
X2
Arizona
ARIZ. REv. STAT. ANN. § 25-211
ARIZ. REV. STAT. ANN. § 25-318
X
Arkansas
ARK. CODE ANN. § 9-12-315
§ 2550 Ibru
Statutory
List
of Factors
X
Alaska
ALASKA STAT. § 25.24.160
ALASKA STAT. § 25.24.160 (a)(4)
California
CAL. FAM. CODE
§ 2551
CAL. FAM. CODE
§ 2604
CAL. FAM. CODE
CAL. FAM. CODE
CAL. FAM. CODE
Property
Divided
X3
X
X
X
X
X
Nonmonetary Economic Contribution
Contributions Misconduct to Education
Xl
Xl
X
X
X4
X
X
X5
x5
§ 2602 tbru
§ 2622 (b)
§ 2627
§ 2641
Colorado
COLO. REV. STAT. § 14-10-113
X
Connecticut
CONN. GEN. STAT. § 46B-81
X
X
X
X5
Delaware
DEL. CODE ANN. TIT. 13 § 1513
X
X
X
District of Columbia
D.C. CODE § 16-910
X
X
X
Florida
FLA. STAT. § 61.075
X
X
X
X
X
Georgia
GA. CODE ANN. TIT. 19
(DaM. REL.)
X
X6
X
X
X
X
X5
X
X5
X7
X
X
Hawaii
X
HAW. REv. STAT. § 580-47
Idaho
IDAHO CODE ANN. § 32-712
Illinois
750 ILL. CaMP. STAT. 5/503
X
X
X
X
X
X
X
X
X
X
X
X
Indiana
IND. CODE § 31-15-7-4
IND. CODE § 31-15-7-5
Iowa
IOWA CODE § 598.21
Kansas
KAN. STAT. ANN. § 23-2802
Kentucky
Ky. REv. STAT. ANN. § 403.190
Louisiana
LA.
LA.
LA.
LA.
X
X
X
X
X
X
X
X
X
X
REV. STAT. ANN. § 9:2801
Ctv. CODE ANN. ART. 121
Ctv. CODE ANN. ART. 2354
Ctv. CODE ANN. ART. 2369.3
Maine
ME. REv. STAT. ANN. TIT.
19-A § 953
Maryland
MD. CODE ANN. FAM. LAW § 8-205
Massachusetts
MASS. GEN. LAWS CH. 208 § 34
Michigan
MICH. CaMP. LAW § 552.18
MICH. CaMP. LAW § 552.23
MICH. CaMP. LAW § 552.401
X
X
X
X
X
X
X
X
X
X8
X9
A Review afthe Year in Family Law
Community
Property
STATE
Only MaritaV
Community Statutory
List
Property
Divided
of Factors
X
Minnesota
XlO
563
Nonmonetary Economic Contribution
Contributions Misconduct to Education
X
X
X"
XII
Xii
X
X
X
XI2
X
X
X
X
X
MINN. STAT. § 518.58
Mississippi
MISS. CODE ANN. § 93-5-23
X
Missouri
Mo. REV. STAT. § 452.330
Montana
MONT. CODE ANN. § 40-4-202
X\3
Nebraska
X
NEB. REv. STAT. § 42-365
X
Nevada
X I5
XI4
NEV. REv. STAT. § 125.150
New Hampsbire
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X17
X
X
X
X
X
XIS
XI9
X20
X
X
X
X
XIS
N.H. REv. STAT. § 458:16-A
New Jersey
N.J. STAT. ANN. § 2A:34-23
N.J. STAT. ANN. § 2A:34-23.1
New Mexico
N.M. STAT. ANN.
N.M. STAT. ANN.
N.M. STAT. ANN.
N.M. STAT. ANN.
N.M. STAT. ANN.
N.M. STAT. ANN.
X
XI6
§ 40-3-8
§ 40-3-9
§ 40-3-9.1
§ 40-3-12
§ 40-4-3
§ 40-4-7
New York
N.Y. DOM. REL. § 236B(5)
North Carolina
N.C. GEN. STAT. ANN. § 50-20
North Dakota
N.D. CENTURY CODE ANN.
§ 14-05-24
Ohio
OHIO ST. § 3105.171
X
Oklahoma
OKLA. STAT. TIT. 43 § 121
X
Oregon
OR. REv. STAT. § 107.105
Pennsylvania
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
23 PA. CONS. STAT. ANN. 3501
23 PA. CONS. STAT. ANN. 3502
Rhode Island
R.I. GEN. LAWS § 15-5-16.1
South Carolina
S.c. CODE ANN. § 20-3-620
S.C. CODE ANN. § 20-3-630
South Dakota
S.D. CODIFIED LAWS § 25-4-44
S.D. CODIFIED LAWS § 25-4-45.1
S.D. CODIFIED LAWS § 25-4-55
X
Tennessee
TENN. CODE ANN. § 36-4-121
Texas
TEX.FAM.CODE.ANN.§7
Utah
X
X
X
X
X
X21
X22
UTAH CODE ANN. § 30-3-5
Vermont
X
X
X
X
X
X
X
X17
15 VT. STAT. ANN. § 751
Virginia
VA. CODE. ANN. § 20-107.3
X
564
Family Law Quarterly, Volume 47, Number 4, Winter 2014
Chart 5: Property Division (continued)
Only Marital!
Community
Community
STATE
Washington
WASH. REV. CODE ANN.
§ 26.09.080
Property
Property
Divided
X
Statutory
List
of Factors
Nonmonetary Economic Contribution
Contributions Misconduct to Education
X
West Virginia
X
X
X
X
X
X
X
X
W. VA. CODE § 48-7-103
Wisconsin
X
WIS. STAT. § 767.61
Wyoming
X
X23
Wyo. STAT. ANN. § 20-2-114
1. Case law establishes tbat the court may look at any factors in the particular case when
making an equitable division of property.
2. Parties may contract to make some or all of their marital property community property.
3. Court has explicit power to bring either party's premarital property, including retirement
assets, if it is necessary to achieve equity.
4. Community property must be divided equally unless the parties agree otherwise.
5. Not specifically listed in statutory factors, but the court is authorized to consider all factors that are relevant to each specific case.
6. The alimony statutory factors also function as factors in dividing marital property.
7. See Estate of Hull v. Williams, 885 P.2d 1153 (Idaho Ct. App. 1994).
8. Spouse may be awarded a share of other's separate property when he or she contributed
to its "acquisition, improvement, or accumulation." Korth v. Korth, 256 Mich. App. 286, 662
N.W.2d III (2003) (sweat equity); Hanaway v. Hanaway, 208 Mich. App. 278, 527 N.W. 792
(1995) (contribution of homemaker).
9. Court, with detailed findings, can award up to one-half of a spouse's nonmarital property
to other spouse to address an award tbat is so inadequate as to "work an unfair hardship."
10. See Postema v. Postema, 189 Mich. App. 89,471 N.W.2d 912 (1991).
11. By case law. See Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994).
12. "[Nlot expressly listed in tbe statutory factors but the statutory factors are expressly
nonexclusive and courts may consider contributions to education." Reese v. Reese (In re Reese),
155 S.W.3d 862, 872 (Mo. Ct. App. 2005).
13. Noted in cases, but not specifically noted in tbe statute.
14. The court may make an unequal disposition of the community property if tbe court finds
a compelling reason to do so and sets forth tbe reasons in writing. Also, if a party has made a contribution of separate property to the acquisition or improvement of property held in joint tenancy,
the court may provide for tbe reimbursement of tbat party for his or her contribution.
15. Although economic misconduct is not specifically listed as a factor to consider in dividing property, in various cases financial misconduct was a justification for unequal disposition of
property.
16. Marital debt is divided in tbe same manner as marital property, except gambling debt that
is considered separate.
17. Assuming education from factor 7, it is worded as "to the career or career potential of tbe
otber party."
18. Not established by statute, but by case law.
19. Not established by statute, but case law states Ruff-Fischer guidelines need to be considered in determining equitable distribution of property in a divorce action.
20. However, separate (nonmarital) property of a spouse may be awarded to tbe otber spouse
"to facilitate, effectuate or supplement a division of marital property" or "to achieve equity
between the spouses, if the court determines that a division of tbe marital property in kind or in
money would be impractical or burdensome." OHIO ST. § 3105.17I(E); Parker v. Parker, 2000 UT
App. 30,][12 (dissipation).
21. Case law mandates property distribution of marital property. See Boyer v. Boyer, 259 P.3d
1063 (Ut. Ct. App. 2011).
22. By case law. See Dunn v. Dunn, 802 P.2d 1314 (Ut. Ct. App. 1990).
23. Considered in case law. See Grosskopfv. Grosskopf, 677 P.2d 814 (Wyo. 1984).
STATE
Stepparents
GrandparentsGrandparents,
Generally'
After Death of Their Chlld
X
Alabama l
ALA. CODE § 30-3-4.1
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Alaska
ALASKA STAT. § 25.20.065
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Arizona
ARIZ. REv. STAT. § 25-409
ARIZ. REv. STAT. § 25-415
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Arkansas
ARK. CODE ANN. § 9-13-102
ARK. CODE ANN. § 9-13-103
ARK. CODE ANN. § 9-13-107
California
CAL. FAM. CODE § 3040 thru § 3041
CAL. FAM. CODE § 31oo!hm § 3105
Colorado
COLO. REv. STAT. § 19-1-117
COLO. REv. STAT. § 14-10-123
COLO. REv. STAT. § 14-10-123.3
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Connecticut
CONN. GEN. STAT. § 468-56
CONN. GEN. STAT. § 468-57
CONN. GEN. STAT. § 468-59
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Delaware
DEL. CODE. ANN. TIT. § 24105
Florida
FLA. STAT. § 752.01 5
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Georgia
GA. CODE ANN. § 19-7-3
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Hawaii
HAW. REV. STAT. § 571-46
HAW. REv. STAT. § 571-46.3 5
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Idabo
IDAHO CODE ANN. § 32-719
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Illinois
750 ILL. COMPo STAT. 5/607
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Indiana
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Iowa
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Kansas
KAN. STAT. ANN. § 23-3301
KAN. STAT. ANN. § 23-3302
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Kentucky
Ky. REv. STAT. ANN. § 405.021
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MD. CODE ANN. FAM. LAW § 9-102
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MASS GEN. LAWS CH. 119 §§ 26B, 39D
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MICH. COMPo LAWS § 722.27B
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MISS. CODE ANN. § 93-16-3
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NEB. REV. STAT. § 43-1802
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MONT. CODE ANN. § 40-9-102
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LA. REv. STAT. ANN. § 344
LA. REV. STAT. ANN. § 344
Minnesota
MINN. STAT. § 257c
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N.H. REv. STAT. ANN. § 461-A:6
N.H. REv. STAT. ANN. § 461-A:13
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New Mexico
N.M. STAT. ANN. § 40-9-2
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New York
N.Y. DoM. REL. § 72
N.Y. FAM. CT. Acr § 651
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North Carolina
N.C. GEN. STAT. ANN. § 50-13.2
N.C. GEN. STAT. ANN. § 50-13.2A
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Oregon
OR. REV. STAT. ANN. § 109.119
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Rhode Island
R.I. GEN. LAWS ANN. § 15-5-24.1
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South Dakota
S.D. CODIFIED LAWS § 25-4-52
S.D. CODIFIED LAWS § 25-4-54
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Pennsylvania
23 PA. CONS. STAT. § 2733
23 PA. CONS. STAT. § 5325
South Carolina
S.c. CODE ANN. § 63-3-530
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Ohio
OHIO REv. CODE ANN. § 3109.11
OHIO REv. CODE ANN. § 3109.051
Oklahoma
OKLA. STAT. ANN. TIT. 43 § 109.4
OKLA. STAT. ANN. TIT. 10 § 75051.5(A)
Any Interested After Tennination
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New Jersey"
N.J. STAT. ANN. § 9:2-7.1
North Dakota
N.D. CENT. CODE ANN. § 14-09-05.1
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TENN. CODE ANN.
TENN. CODE ANN.
TENN. CODE ANN.
TENN. CODE ANN.
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Texas
TEX. FAM. CODE ANN. § 153.432
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Utah
UTAH CODE ANN. § 30-5-2
UTAH CODE ANN. § 30-5A-102
UTAH CODE ANN. § 30-A- 103
West Virginia
W. VA. CODE ANN.
W. VA. CODE ANN.
W. VA. CODE ANN.
W. VA. CODE ANN.
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Wisconsin
WIS. STAT. ANN. § 767.43
WIS. STAT. ANN. § 54.56
WIS. STAT. ANN. § 48.92 5
Wyoming
Wyo. STAT. ANN. § 20-7-101
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VT. STAT. ANN. TIT. 15, § 1011
VT. STAT. ANN. m. 15, § 1012
VT. STAT. ANN. TIT. 15, § 1016
Virginia
VA. CODE ANN. § 20-124.1
VA. CODE ANN. § 20-124.2
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A Review afthe Year in Family Law
569
* Grandparents may obtain visitation when the parents are alive and regardless of their
marital status. Many of these statutes contain requirements, such as the establishment of a
substantial relationship, the best interests of the child, the existence of a residential relationship,
the parent's unreasonable denial of visitation, or a combination of these.
** This New Jersey statute is flagged unconstitutional.
1. The grandparent visitation statute has been found to be unconstitutional as of December
2011. See Burnett v. Burnett, 2011 WL 6117944 (Ala. Civ. App. 2011).
2. Third-party-visitation burden of persuasion for a grandparent raised to clear and convincing (Evans v. McTaggart). Also case law permits a "psychological parent" to seek custody,
and Evans v. McTaggart raised proof to clear and convincing.
3. Assuming that the factors set forth in the nonparental custody and visitation statute are
satisfied, including a finding that visitation is in the child's best interests, the court can order
reasonable visitation upon the establishment of in loco parentis status. A person who stands
"in loco parentis," who is a "de facto," "equitable," or "psychological parent," or who has a
substantial residential relationship with a child may seek visitation or custody without showing
that a parent is unfit or other extraordinary circumstances. Some statutes impose a time requirement for the duration of the relationship before visitation or custody may be sought. New York
requires proof of "extraordinary circumstances."
4. The petitioner has the right to visit any brother or sister, regardless of the degree of
blood relationship, whose parents have denied such access.
5. A court of the state has declared the statute unconstitutional either on its face or as
applied.
6. The court must scrutinize an application to determine whether it contains specific, good
faith allegations of both relationship and harm, namely that nonparent has a relationship with
child that is similar in nature to a parent-child relationship and that denial of visitation will cause
real and significant harm to child, and if the application does not contain such allegations, the
application must be dismissed.
7. Grandparent visitation statute violates constitutionally protected liberty interest of
parents to raise their children without undue state interference. The State may only impose that
visitation over parents' objections on showing that failing to do so would be harmful to child.
8. Visitation rights of paternal grandparents to child born out of wedlock are subject to
establishment of paternity.
9. Third party must establish existence of custodial and parental relationship with child.
10. Visitation rights survive adoption of child by either a stepparent or any person related
to child.
11. Visitation may be granted to grandparents of a child if the grandparents' son or daughter is deceased and the grandparent has assumed the financial obligation of child support owed
by deceased parent.
12. La. Rev. Stat. Ann. § 344 provides visitation rights to siblings in the event of the death
or incarceration of a parent or the legal separation of the parents.
13. If the parents are not deceased, grandparents may get visitation rights if there is an existing relationship between the grandparent and child or a sufficient effort to establish a relationship has been made.
14. Sibling visitation may be granted once minor children are placed in family foster care.
15. Third-party visitation for any interested party may be granted as long as the child has
resided with them for a period of two years or more, and meet the other criteria applicable for
all third-party visitation requests.
16. Visitation rights for grandparents in a stepparent adoption.
17. When the stepparent stands in loco parentis. See Hickenbottom v. Hickenbottom, 477
N.W.2d 8, 16 (1991) (citing NEB. REV. STAT. § 42-364).
18. "If the child has resided with a person with whom the child has established a meaningful relationship." NEV REV. STAT. ANN. § 125C.050.
19. Allows visitation rights for siblings and grandparents when a "spe~ial relationship"
exists or existed between the grandparent(s) and the child(ren).
570
Family Law Quarterly, Volume 47, Number 4, Winter 2014
20. McAllister v. McAllister, 779 N.w.2d 652 (N.D. 2010).
21. In an adoption, the adoptive parents may enter into a visitation agreement with "birth
relatives." OKLA STAT. ANN. TIT. 10, § 7505-1.5(A). A stepparent is considered a birth relative.
Id. at § 7505-1.5(B).
.
22. A prospective adoptive parent of a child may enter into an agreement with a birth relative of the child to permit continuing contact or communication between the child and the
birth relative or between the adoptive parent and the birth relative.
23. See Dodge v. Dodge, 505 S.E.2d 344 (S.C. App. 1988). (Stepfather joined with maternal grandparents in custody dispute; the court did not rule on the stepfather's standing alone).
24. When court-ordered grandparental visitation, in addition to the noncustodial parent's
visitation periods, borders on divided custody, it will not be approved absent exceptional circumstances. Brown v. Earnhardt, 396 S.E.2d 358 (1990); 21 S.C. JUR. CHILDREN AND FAMILIES
§ 151.
25. See Moore v. Moore, 386 S.E.2d 456, 458 (S.C. 1989), citing Kay v. Roland, 331
S.C.2d 781, 782 (S.C. 1985) (Court places substantial burden on a third party attempting to take
custody over biological parent recognizing, "superior rights of a natural parent in a custody
dispute with a third party. Once the natural parent is deemed fit, the custody is decided.")
26. For the purposes of this section, if the child's parent is deceased and the grandparent
seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption
of substantial harm to the child based upon the cessation of the relationship between the child
and grandparent. TENN. CODE ANN. § 36-6-306.
27. Court may grant custody to individuals other than a parent in certain circumstances.
"Person other than a parent" includes only (a) siblings; (b) aunts; (c) uncles; (d) grandparents;
or (e) current or former step-parents, or any of the persons in Subsections (2)(a) through (d) in
a step relationship to the child. UTAH CODE ANN. § 30-5a-102.
28. Grandparents cannot initiate a proceeding on their own unless the child's parent has
died. They can file a petition in ongoing custody proceedings, including divorce, and marital
status of parents doesn't matter, but only for ongoing proceedings.
29. See In re Custody of Smith, 969 P.2d 21 (1998); In re Parentage of C.A.M.A., 109 P.3d
405 (Wash. 2005) (found third- party-visitation-rights statutes unconstitutional).
30. If one or both parents of a minor are deceased and the minor is in the custody of the
surviving parent or any other person, a grandparent or stepparent of the minor may petition for
visitation privileges with respect to the minor, whether or not the person with custody is married. WIS. STAT. ANN. § 54.56
31. To receive visitation rights, the individual has to have been the primary caregiver for
the child for a period of not less than six (6) months within the previous eighteen (18) month.
If the court finds, after a hearing, that visitation would be in the best interest of the child and
that the rights of the child's parents are not substantially impaired, the court shall grant reasonable visitation rights to the primary caregiver.