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(b) The state of Kansas shall not recognize a common-law marriage contract if either party to the marriage
contract is under 18 years of age.
2. 23-102
3. 23-104(a) –
a. Marriage may be validly solemnized and contracted in this state after a license has been
issued: By the mutual declarations of the two parties, made before an authorized
officiating person and in the presence of at least two competent witnesses over 18 years
of age, other than the officiating person.
b. List of who are authorized to be officiating persons
4. 23-105
a. Registered with the supervision of the secretary of health and environment
5. 23-106
a. Issuance of Marriage License
Family Law Outline – Spring 2009 (5 of 77)
b. No clerk or judge shall issue a license authorizing the marriage of any person under the
age of 18, without the express consent of such persons father, mother or legal guardian
and consent of the judge
6. 23-107 Forms for licenses, issuance, photocopy to applicant; computer generated licenses
7. 23-108(a) – License fee; disposition
8. 23-109(Marriage certificate, recording marriages
9. 23-110 Records of marriages; indexing; certified copies or abstracts
10. 23-111 Penalty for not complying with statutory requirements
11. 23-112 Copy of licenses returned kept by court personnel
12. 23-114 – Proof of relationship of parties; penalty for granting license to parties not
entitled without examination
13. 23-115 Validity of Marriages contracted without state
a. All marriages contracted without this state, which would be valid by the laws of the
country in which the same were contracted, shall be valid in all courts and places in this
state. It is the strong public policy of this state only to recognize as valid marriages from
other states that are between a man and a woman.
14. 23-116 Validation of certain marriages; performance of marriage by Baha’is assemble
15. 23-116a – Solemnizing marriage; persons not authorized; penalty
16. 23-117 –Records or copies as evidence
17. 60-1602 – Grounds for Annulment
a. The district court shall grant a decree of annulment of any marriage for either of the
following grounds (1) the marriage is void for any reasons or (2) the contract of marriage
is voidable because it was induced by fraud.
b. The district court may grant a decree of annulment of any marriage if the contract of
marriage was induced by mistake of fact, lack of knowledge of a material fact or any
other reason justifying rescission of a contract of marriage.
18. Kansas constitution Art. 15 § 16 (a) the marriage contract is to be considered in law as a civil
contract. Marriage shall be constituted by one man and one woman only. All other marriages
are declared to be contrary to public policy of this state and are void. (b) No relationship, other
than a marriage, shall be recognized by the state as entitling the parties to the rights or
incidents of marriage.
19. DOMA – 1 USCA § 7, 28 USCA 1738C
a. In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the word “marriage” means only a legal union
between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the
opposite sex who is a husband or a wife.
b. No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any
public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a
Family Law Outline – Spring 2009 (6 of 77)
relationship between persons of the same sex that is treated as a marriage under the laws of such other State,
territory, possession, or tribe, or a right or claim arising from such relationship
ii. Common Law Capacity to Marry Elements:
1. Sufficient Age
a. At common law, 12 years old for females and 14 for males. If one or both of the parties
are below these ages, this results in a void marriage
2. No other lawful spouse
3. Not too closely related
4. Requisite Mental Capacity – to understand the nature of the marriage contract and the duties
and responsibilities of marriage
5. Opposite gender
iii. Kansas capacity to marry elements
1. Sufficient Age
2. No other lawful spouse
3. Not too closely related
4. Requisite mental capacity
5. Kansas – opposite gender
v. Sufficient Age
a. Statutory and Common law for Kansas – 18 years old
b. Under Kansas case law, statutory marriages of females at least 12 years old and males
at least 14 years old but under statutory age (where the parties lie about their true age)
result in valid marriages (See Browning) in which the failure of a man to obtain his
parents consent to a marriage because he was underage nonetheless resulted in a valid
marriage, the court holding that the regulation of parental consent was merely directory.
c. Browning – Man was 19, parental consent was 21, and he lied on marriage license.
Impermissible but valid. (If the other party was dooped, may be able to get a
discretionary marriage)
vi. No other lawful spouse
1. Reynolds v Reynolds
a. Charging George Reynolds with bigamy, in violation of the statutes.
b. Court:
i. He argued it was an accepted doctrine of his church to practice polygamy.
ii. At common law, the second marriage was always void and from the earliest history
of England, polygamy has been treated as an offense against society
iii. Marriage is a civil contract and is usually regulated by law
Family Law Outline – Spring 2009 (9 of 77)
iv. To permit this would be to make the professed doctrines of religious beliefs
superior to the law of the land, and in effect to permit every citizen to become a
law unto himself.
vii. Not too closely related
1. KSA 23-102 – All marriages between parents and children, including grandparents and
grandchildren of any degree, between brothers and sisters of the hone half as well as the
whole blood, and between unless and nieces, aunts and nephews, and first cousins are
incestuous and absolutely void.
2. In re Loughmiller
a. Owen and Peggy were first cousins and were married in CO. Divorce was interrupted by
death. Owen had executed a will which omitted any mention of Peggy. Peggy filed to
take one half under the elective share.
b. Court:
i. The general rule with regard to recognition of marriages solemnized elsewhere is
that if the marriage is valid where contracted, it is valid everywhere.
ii. Exceptions to the rule are
1. polygamous marriages and marriages incestuous according to the principles
of Christendom
2. marriages prohibited by the forum state for public policy reasons
iii. Three reasons for prohibiting incestuous marriages
1. They are forbidden by ecclesiastical law
2. inbreeding is thought to cause a weakening of the racial and physical quality
of the population
3. they prevent the sociological consequences of competition for sexual
companionship
iv. First cousin marriages were not prohibited at common law
1. We cannot find that a first cousin marriage validly contracted elsewhere is
odious to the public policy of this state
2. Marriage is valid
c. Notes:
i. General rule is that marriages which are valid in the jurisdiction where they are
celebrated are valid everywhere.
ii. Exception: the marriage violates public policy.
iii. Look at what the statute says the status of the marriage would be if celebrated in
the forum state
1. Look at persuasive authority from other statutes
2. Look to see if the marriage is evasive!!!!
3. Israel v. Allen
Family Law Outline – Spring 2009 (10 of 77)
a. Martin and Tammy are brother and sister related by adoption and are not related by
either the half or the whole blood. Raymond adopted Tammy. (Raymond married
Tammy’s mom)
b. Court:
i. The objections that exist against consanguineous marriages are not present where
the relationship is merely by affinity.
ii. The physical detriment of offspring is absent
4. KSA. 23-102
a. Kansas St. 23-102 does not prohibit brothers and sisters by adoption from marrying one
another.
b. Attorney general says that KS law does not prohibit the issuance of a marriage license to
such applicants because KSA 23-102 prohibits marriages only between brothers and
sisters of the one half as well as the whole blood
3. Rickards v. Rickards
a. The statute at issue provides a ground for annulment as incurable physical impotency or
incapacity for copulation.
b. Wife had sustained the burden of proving that the husband was sexually impotent
xi. Same Sex Marriages/Domestic Partnerships
1. FILL IN!
xii. Annulment
1. KSA 60-1602
a. The district court shall grant a decree of annulment of any marriage for either of the
following grounds (1) the marriage is void for any reasons; or (2) the contract of
marriage is voidable because it was induced by fraud
b. The district court may grant a decree of annulment of any marriage if the contract of
marriage was induced by mistake of fact, lack of knowledge of a material fact or any
other reason justifying rescission of a contract of marriage.
i. (b) is voidable!!!!
2. Discretionary Annulment
a. (subsection b)
i. Mistake of fact
ii. Lack of knowledge of a material fact
1. use the materiality test – would the person have entered the marriage
contract if he or she would have known all the facts
2. (these grounds were not grounds at common law. Could lie about anything
and lie not sufficient to annul marriage.
3. Remember: it is lack of capacity that prevents the marriage from taking
effect, not by the lie)
iii. any other reason
1. incurable impotency
Family Law Outline – Spring 2009 (13 of 77)
2. jest
3. duress
iv. remarriage before a divorce is final KSA 60-1610, if appeal, until appeal becomes
final
v. once valid, goes back to date of saying I do.
3. Curative Device
a. Cure’s to a full marriage
4. Mitigative Device
a. Doesn’t give full marriage – some rights, but not a full marriage
d. Rights and Duties Within a Marriage
i. Married Woman’s Property Act 23-201
1. The property, real and personal, which any person in this state may own at the time of the
person’s marriage, and the rents, issues, profits or proceeds thereof, and any real personal or
mixed property which shall come to a person by descent, devise or bequest…shall remain the
persons sole and separate property, not withstanding the marriage, and not be subject to the
disposal of the other person’s spouse
2. All property owned by married persons, including the present value of any vested or unvested
military retirement pay, or, for divorce or separate maintenance, etc, shall become marital
property at the time of the commencement by one spouse against the other of an action in
which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse
has a common ownership in marital property which vests at the time of commencement of
such action.
ii. Family Autonomy
1. Kilgrow v. Kilgrow
a. Jack filed a petition seeking a temporary injunction restraining his wife from interfering
with the P’s right to carry the child to Loretta school to resume her education.
b. Court:
i. If this was a proceeding to determine the child’s custody the equity court would
have jdx for that purpose.
ii. The inherent jdx of courts of equity over infants is a matter of necessity, coming
into exercise only where there has been a failure of that natural power and
obligation which is the province of parenthood.
iii. We do not think a court of equity should undertake to settle a dispute between
parents as to what is best for their minor child when there is no question
concerning the child’s custody.
c. Notes:
i. Only get involved when there is some sort of rupture in the family
ii. Won’t enforce prenup – separation of church and state
Family Law Outline – Spring 2009 (14 of 77)
iii. This is a classic example of the family autonomy approach that courts take to
disputes in on-going families – it is a hand off approach that the family must
resolve the dispute without court intervention
iv. Only where there has been a failure of that natural power and obligation which is
the province of parenthood such as a broken home or neglect or a natural
custodian’s incapacity, unfitness or death
v. Intervention, rather than prevention or healing a disruption, would quite likely
serve as the spark to a smoldering fire
iii. The Duty of Support
1. KSA 21-3605
a. (b) (1) Nonsupport of a spouse is an individual's failure without just cause to provide for the support of such
individual's spouse in necessitous circumstances
2. KSA 21-3606
a. Repealed.
3. McGuire v. McGuire
a. Wife worked in the fields, did outside chores, cooked and attended to her household
duties such as cleaning the house, raised as high as 300 chickens, etc. For the past four
years, D had not given the P money to purchase furniture or other household necessities.
b. Court:
i. It was a well established rule of law that it is the duty of the husband to provide his
family with support and means of living.
ii. But, in light of the cited cases it is clear, especially so in this jdx, that to maintain
an action such as the one at bar, the parties must be separated or living apart
from each other.
iii. The living standards of a family are a matter of concern to the household, and not
for the courts to determine
iv. As long as the home is maintained and the parties are living as husband and wife it
may be said that the husband is legally supporting his wife and the purpose of the
marriage relation is being carried out.
v. As long as you are living with this man, court presumes he is supporting you. (have
to be living separate and apart to get legal remedy)
vi. FAMILY AUTONOMY
vii. Only in those cases involving husbands and wives who had been living separate or
apart the court will issue a spousal support order
4. Law of Necessities
a. 3rd party sues – wife can’t use it
Family Law Outline – Spring 2009 (15 of 77)
b. Under traditional common law doctrine of necessities, a husband who was derelict in
furnishing food, shelter and medical services to his wife was liable to a third party who
provided these necessaries to the wife
i. However, because the wife was deemed legally incapable of incurring an obligation
independent of her husband, and because the husband was legally and exclusively
responsible for providing the necessaries to the entire family unit, there was no
reciprocal liability on the part of the wife to a third party for providing the
necessaries of the husband.
c. Historically it only applied to husbands.
5. St. Francis v. Bowles
a. Is Tamara liable for Edward’s medical expenses as a matter of law even though she did
not contract with St. Francis for her husband’s care?
b. Court:
i. Expands doctrine to apply to husband and wives equally
ii. It is hereby expanded to apply to husbands and wives equally; however, before a
creditor may seek payment from a spouse the creditor must first pursue collection
from the person who received the necessary goods or service. Only if the spouse
who rec’d the benefits has insufficient resource to satisfy the debt may the other
spouse be liable. Such liability is not automatic; the second spouse may raise
defenses available.
iii. Must first pursue collection from the person who received the goods or services.
iv. Ks says doctrine comes out of agency – that husband is agent
iv. A Married Woman’s Name
1. Stuart v. Board of Supervisors of Elections for Howard County
a. In accordance with the couple’s oral antenuptial agreement, Stuart continued after the
marriage to use and be known by her birth given name. The board of Supervisor’s of
elections notified her that since under MD law a woman’s legal surname becomes that of
her husband on marriage, she was required by MD code to complete a request for
change of name. She did not complete the form and her registration was cancelled.
b. Court:
i. If a married woman may lawfully adopt an assumed name without legal
proceedings, then we think MD law manifestly permits a married woman to retain
her birth given name by the same procedure of consistent, non-fraudulent use
following her marriage
ii. we hold that a married woman’s surname does not become that of her husband
where she evidences a clear intent to consistently and non-fraudulent use her birth
given name subsequent to her marriage
Family Law Outline – Spring 2009 (16 of 77)
c. CL Doctrine of name change by repute – you are who you say you are – as long as it is
not for fraudulent purposes
v. Summary
1. General principle for intact ongoing marriages – court has adopted a hands off policy. Won’t
resolve disputes in an ongoing marriage
2. Doctrine of coveture – now applied that rights and duties flow to both spouses – Responsibility
of support can now be on W
3. unless a statute that says otherwise, can keep a maiden name
e. Non-Marital Relationships
i. Marvin v. Marvin
1. P says that the parties entered into an oral agreement that while the parties lived together
they would combine their efforts and earnings and would share equally any and all property
accumulated as a result of their efforts whether individually or combined. Had an agreement to
hold each other out to the general public as husband and wife. P agreed to give up her
entertainment career and devote herself full time to the D.
2. Court:
a. The courts should enforce express contracts between non-marital partners except to the
extent that the K is explicitly founded on the consideration of meretricious sexual
services
b. In the absence of an express contract, the courts should inquire into the conduct of the
parties to determine whether that conduct demonstrates an implied K, agreement of
partnership or joint venture, or some other tacit understanding between the parties
c. The courts may also apply the doctrine of quantum meruit or equitable remedies such as
a constructive or resulting trust when warranted by the facts of the case.
d. The fact that a man and a woman live together without marriage, and engage in a sexual
relationship does not in itself invalidate agreements between them relating to their
earnings, property or expenses. – Fail only to the extent they rest on consideration of
sexual services
e. They can’t lawfully contract to pay for the performance of sexual services but they may
agree to pool their earnings and to hold all property acquired during the relationship in
accord with the law governing community property
3. 5 legal theories she raises – she loses, but created five causes of action – that is what the case
law stands for
a. implied contract
b. express contract
c. quantum meriut
d. constructive trust
e. resulting trust
Family Law Outline – Spring 2009 (17 of 77)
ii. Hewitt v. Hewitt
1. P lived with the D for 15 years in an unmarried, family like relationship to which three children
have been born, may recover from him an equal share of the profits and properties
accumulated by the parties during that period. D promised he would share his life, his future,
his earnings and his property with her and all of D’s property resulted from the parties’ joint
endeavors. P became pregnant, told her they were husband and wife and would live as such.
2. Court:
a. An agreement in consideration of a future illicitly cohabitation between the P is void
b. Hold that P’s claims are unenforceable for the reason that they contravene public policy,
implicit in the statutory scheme of the IL marriage and dissolution of marriage act,
disfavoring the grant of mutually enforceable property rights knowingly to unmarried
cohabitatants.
c. She alleged Express K, Implied K, trust, and unjust enrichment. IL SC says these causes
of action are no good.
3. Notes:
a. The court notes that most cases coming under the causes of action stated in the Marvin
case would not be cases of express contract, but rather, implied contracts, requiring the
court to look at the details of the parties living arrangements. However, the court goes
onto say that there is more here than just issues of contract law and equity and fairness
between the parties who live together outside the marriage relationship.
iii. Eaton v. Johnson
1. P and D were married. They were later divorced but then resumed living together for about 2
1/2 years. P filed a petition seeking an adjudication that a common law marriage did not exist.
2. Court
a. 60-1610 has been construed as giving the trial court discretion to divide property even
where no request or demand in the pleadings is made
b. Court of appeals correctly held that the trial court in the exercise of its inherent power to
do equity independent of the statute was authorized to make an equitable division of the
property accumulated by the parties during the period they were living together.
c. We conclude that 60-1606 does not authorize a district court to make an equitable
division of property of the parties after a finding that no common law marriage existed
3. Notes:
a. Different legal theories that the SC of KS established that a court could use to divide
property acquired in a non-marital cohabitation situation
i. The trial court, in the exercise of its inherent authority to do equity…was
authorized to make an equitable division of the property accumulated by the
parties during the period they were living together
Family Law Outline – Spring 2009 (18 of 77)
ii. The court has the same power to make equitable division of the property so
accumulated as it would have in case of the dissolution of a business partnership
iii. This cause is remanded for division of such property as may have been jointly
accumulated by the parties or acquired by either with the intent that both should
have an interest therein (i.e. express or implied contract) during the period they
lived together following their divorce….all in a manner as the court in its discretion
may find to be just and equitable
b. KS is an equitable division state - exactly the same remedy as divorce
c. Can look at it as a business, divide like a partnership
d. To discern their intention – express or implied K
e. In this case – Intent controls
f. If parties don’t have a prenup before they get married, intent does not control!
g. Marriage
i. Common law
ii. Statutory
iii. Divorce statutes
h. Contractual cohabitation
i. Remedies will be given depending on intent
iv. Vermont Civil Unions
1. be of the same sex and therefore excluded from the marriage laws of this state, not be a party
to another civil union or a marriage, and under 1203 not be too closely related
v. Marriage, Domestic Partnerships and Civil Unions
1. California: Domestic partners are two adults who have chosen to share one another’s lives in
an intimate and committed relationship of mutual caring and both have a common residence,
neither is married or a member of another domestic partnership, the two persons are not
related by blood in a way that would prevent them from being married to each other in this
state, both are 18 years of age, both are of the same sex, or one or both meet the eligibility
criteria for old-age insurance and at least over the age of 62
2. Hawaii Reciprocal benefits relationship – each of the parties must be at least 18 years old, not
married nor a party to another reciprocal beneficiary relationship, must not be legally
prohibited from marrying one another, such as two individuals related to each other or of the
same gender.
II. Divorce
a. Fault Divorce
i. Preview
1. Divorce law comes from jurisprudence in ecclesiastical courts
2. Only allowed to separation to someone who is faultless. Could not if they committed the wrong
themselves.
Family Law Outline – Spring 2009 (19 of 77)
3. 4 possible disputes
a. custody
b. alimony
c. property
d. fight over whether to get a DV or not
4. Current grounds in Kansas
a. Incompatibility – preferred grounds
b. Failure to perform a material marital duty (it is in fact all of the fault grounds)
5. Divorce – termination of a valid marriage whereas annulment is a declaration by a court that a
purported marriage was invalid from its beginning of defects existing at the time it was
contracted
6. grounds for divorce must exist at the time of filing of the petition
ii. Traditional fault
1. Adultery
a. Voluntary sexual intercourse of a married person with someone other than that person’s
spouse
b. The rule has thus developed that it may be proved by circumstances which indicate (a)
the opportunity to commit adultery existed and (b) the disposition or inclination to
commit it existed.
c. The wife’s bearing a child which is not that of the husband is such evidence
d. Evidence that the D had a venereal disease is also a prima facie indication of adultery
e. As a general rule, voluntary intoxication is not a defense to adultery.
f.
2. Mental Illness
a. Not technically a fault ground for DV in Kansas
b. Under the current statute, this ground is listed separately and defined separately and is
now framed in terms of a special form of incompatibility – incompatibility by reason of
mental illness or mental incapacity of one or both spouses. This time for the confinement
is now 2 years, with 2 out of 3 doctors finding the mentally ill spouse has a poor
prognosis of recovery from the mental illness based on general knowledge available at
the time. As in the past, a decree on this ground does not relieve the other spouse from
contributing to the support of the mentally ill spouse.
c. It may also be used for a defense -
3. Desertion/abandonment
a. Kansas – abandon for one year
b. Elements
i. Voluntary separation
ii. Intent not to resume
Family Law Outline – Spring 2009 (20 of 77)
iii. Without consent
iv. Without justification
c. Voluntary separation by one spouse from another with the intent not to resume marital
cohabitation without the consent of the other spouse and without justification
d. The abandonment must be continuous. An offer to resume marital cohabitation ends the
running of the one year period
e. Some states still have held that refusal to have sexual relations constitutes
abandonment even though the parties still share the same residence.
f. Constructive abandonment occurs when conduct of one spouse forces the other to leave
the residence
g. If the parties separate and one sues for divorce on grounds other than desertion and
loses, the time spent in the litigation cannot be counted in arriving at the statutory
period which must elapse before the other spouse may sue for desertion.
h. Voluntary separation
i. When one spouse leaves home and has nothing further to do with the other
spouse, his action may easily be characterized as voluntary
ii. Where he leaves because he is required to go to the army, this is not
abandonment
iii. If the D showed by his conduct or statements that he did not intend to remain
away permanently, he is not a deserter
iv. If the withdrawal is justified by the other’s misconduct, it does not amount to
desertion
i. Consent and justification
i. Does not occur if the parties live apart by mutual agreement
ii. If the husband moves and the wife refuses without justification to accompany him,
she is guilty of desertion
j. Offers of reconciliation
i. After a desertion has occurred, it is usually held that the wronged spouse need not
make an attempt at reconciliations as a condition upon being able to get a divorce
ii. If the deserting spouse, on the other hand, should offer in good faith to return and
resume living as husband and wife, this has a dual effect
iii. If the offer is refused, the innocent spouse becomes a deserter and the statutory
period begins to run from the time of the refusal. If the refusal is persisted in for
statutory period, a ground for divorce accrues to the party who originally left the
domicile
4. cruelty
a. Elements
i. Unjust and long practiced course of conduct
Family Law Outline – Spring 2009 (21 of 77)
ii. By one spouse towards the other
iii. Which utterly destroys the legitimate ends and objects of matrimony
5. neglect of duty
a.
6. drunkenness/drug use
a. required a lot – had to have extreme alcoholism
7. felony
a. the conviction must be followed by imprisonment
iii. History of Divorce
1. Lindbloom v. Lindbloom
a. D had P admitted to Osawatomie state hospital, He said the children were not being
cared for properly, their hair was straight, they weren’t kept clean, the housework was
not well done, and there was considerable waste of food and utilities
b. Court:
i. It is not mere neglect of marital duty. The adjective gross has a legal force as
descriptive of the party neglecting duty
ii. If the wife should become ill and be unable to perform her household duties as well
as she ordinarily would perform them, we would not be willing to say that the H
was entitled to a DV because of that situation.
iii. The evidence did not justify granting of a divorce to D
iv. Gross neglect of duty – each case is fact specific and must be examined by itself.
However, mere neglect is not enough, it must be accompanied by indignity and
aggravation
2. Carpenter v. Carpenter
a. Husband sued for divorce on ground of gross neglect of duty only. Wife charged the
husband with abandonment, extreme cruelty and gross neglect of duty. He was to
secure a place to live and establish a home for his wife and baby. They decided to live
six months apart so that appellant could determine who she might then feel toward him.
He agreed they could live apart.
b. Court:
i. Extreme cruelty is not limited to acts of physical violence. Any unjustifiable and
long practice courts of conduct by one spouse towards the other which utterly
Family Law Outline – Spring 2009 (22 of 77)
destroys the legitimate ends and objects of matrimonial constitutes extreme
cruelty though no physical or personal violence may be inflicted or threatened.
ii. The record in this case is wholly devoid of anything indicating that appellant’s
conduct was accompanied by indignity and aggravation.
c. Extreme Cruelty
i. Unjustifiable and long practiced course of conduct
ii. By one spouse towards the other
iii. Which utterly destroys the legitimate ends and objects of matrimony
d. Gross neglect of duty
i. Gross neglect of duty is indefinite and is difficult to lay down any general rule by
which every case can be determined to be within or without its limits. Each case
must be examined by itself.
ii. Gross – has legal force
iii. There must not only be a default, but the default must e attended with
circumstances of indignity or aggravation.
iv. Abandonment for one month or ten, although it involves a total neglect of all
marital duty, is not gross neglect of duty within the statute – something more than
mere neglect, although it is a neglect of all duty, is requisite. If neglect alone is
shown, it must be a total neglect, and continue for a year.
e. Notes:
i. Conduct which utterly destroys legitimate ends and long practice of marriage =
has to be directed at a person, like an intentional tort,
3. Talman v. Talman
a. The parties had lived in a quarrelsome relationship for some years. One of the chief
causes of controversy appears to have been D’s mother. It appears that many of their
arguments stemmed from the relationship of D’s mother to their family.
b. Court:
i. D encouraged and condoned her mother’s interference in the marital life affairs of
P and D
ii. A course of conduct on the pat of one spouse which has become intolerable to the
other, so as to disrupt domestic harmony and to destroy legitimate matrimonial
objectives, has often been characterized as behavior amounting to extreme cruelty
iii. Cruelty as a ground for divorce is generally a course of conduct rather than a
single act
c. How does the KS SC change the definition of extreme cruelty in this case?
i. Carpenter 1948
1. unjustifiable and long practiced course of conduct
2. by one spouse towards the other
Family Law Outline – Spring 2009 (23 of 77)
3. which utterly destroys the legitimate ends and objects of matrimony
ii. Talman 1969
1. a course of conduct
2. on the part of one spouse which becomes intolerable to the other spouse
3. so as to disrupt domestic harmony and to destroy legitimate matrimonial
objectives
iv. Fault Divorce Defenses
1. Misc.
a. Kansas has morphed extreme cruelty into incompatibility
b. If we use last cases in extreme cruelty, we have incompatibility
2. Divorce Defenses
a. IN fault based divorce, there are going to be defenses, to prevent a person from getting
a remedy.
b. Overriding public policy of maintaining marriage is done through defenses.
i. Unclean hands – no remedy
ii. ONLY NON FAULTY PERSON CAN GET A REMEDY – not going to give a remedy to a
faulty party!!
c. Connivance
i. This involves the participation of one spouse who is seeking the divorce in creating
the grounds for divorce or developing the grounds for divorce.
ii. The idea is the consent to the grounds – this usually involved adultery cases.
(persuading a spouse to commit adultery or having someone seduce the spouse)
iii. Merely gathering evidence is not connivance. However, there is a disagreement
among the cases if mere acquiescence, acceptance, indifference or not trying to
prevent the adultery is sufficient to prove connivance.
iv. Almost entirely limited as a practical matter to actions brought on the ground of
adultery
v. If the P originally consents to the adultery, he will not later be allowed to change
his mind and say that he no longer consents
vi. P’s consenting to the D’s wrong
vii. Active participant in the adultery, urging that it be committed, by exposing the
wife to improper company, or employing agents to seduce the wife,
viii. He must know of the offense, negligence or inattention is not being enough
d. Collusion
i. Parties will attempt collusion
ii. Involves the parties agreeing that one of them should commit a found for divorce
or that they should pretend or lie about the grounds being committed.
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iii. An agreement between two parties for one to commit, or appear to commit, a fact
adultery, in order that the other may obtain a remedy at law
iv. The agreement that one party will actually commit a marital wrong in order to give
grounds for divorce, constitutes connivance
v. Connivance depends on consent that a marital offense actually be committed,
while collusion involves agreement that the martial offense appear to be
committed
vi. Collusion requires an agreement – Keyed on an agreement whereas connivance is
not keyed on an agreement – it is the participation of one spouse
vii. Collusion has the parties agreement
viii. This protects the third party to the marriage – the state
ix. Both parties desiring a divorce is not collusion, nor is it the failure to defend a
divorce. The agreement not to defend a divorce is collusion however.
1. A property settlement agreement that conditions the award of property or
support upon one of the parties filing for and obtaining the divorce is
collusion, but if the agreement merely says that it is conditional upon the
court granting a divorce, then the agreement is not collusive.
e. Distinguish Connivance from Collusion
i. Collusion requires mutual agreement that one of the parties commits or appears to
commit an act that is grounds for divorce. Connivance does not require mutual
consent, but rather requires the actual performance of the act.
f. Condonation
i. There are three elements to condonation:
1. The nonfaulting spouse condones the marital wrong when he or she, with full
knowledge of the offense, forgives the faulting party and resumes marital
intercourse and the faulting party treats the nonfaulting party with conjugal
kindness.
2. if the faulting spouse does not treat the non-faulting spouse with kindness,
the old offense is revived and the nonfaulting spouse can sue for divorce.
ii. When a resumption of marital intercourse occurred with knowledge of the D’s
offense, the offense was presumed remitted and the p could not have a divorce
iii. Marital intercourse and remission or forgiveness of the offense
iv. Condonation be voluntary and with knowledge of the facts
v. Proof that P not only knew of the marital offense in the sense of possession of
information that it happened, but that he believed and emotionally accepted the
information.
vi. Elements:
1. resumption of cohabitation
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2. sexual intercourse with forgiveness
3. treat spouse with conjugal kindness – treat person well and
4. HAVE TO HAVE FORGIVENESS IN COMMON LAW REQUIREMENTS
g. Delay in Bringing Suit
i. Delay in suing, may, when coupled with a resumption of marital relations, amount
to condonation which bars divorce
ii. Actions are barred if brought after the expiration of the period of limitation
iii. Can’t know about adultery and just sit on it
h. Recrimination
i. ONLY NON FAULTY PERSON CAN GET A REMEDY – not going to give a remedy to a
faulty party!!
ii. When both spouses have grounds for a divorce, neither may have a decree
iii. It now prevents the dissolution of those very marriages most appropriate for
dissolution
i. Comparative Rectitude
i. When both parties to a divorce action are found to be at fault, the divorce may be
granted to the one whose fault is the less serious
ii. Where cruelty is involved, the severity of the parties’ conduct may be evaluated,
but it seems quite difficult to decide whether cruelty is more serious than adultery
more serious than cruelty
b. No Fault Divorce
i. Now starting to look at is this relationship viable?
ii. Some no fault grounds
1. incompatibility
2. irreconcilable differences
3. irretrievable breakdown
4. living separate and apart
5. mutual consent
6. unilateral divorce
iii. Kansas 60-1601
1. a) The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1)
Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental
illness or mental incapacity of one or both spouses.
(b) The ground of incompatibility by reason of mental illness or mental incapacity of one or both spouses shall require a
finding of either: (1) Confinement of the spouse in an institution by reason of mental illness for a period of two years,
which confinement need not be continuous; or (2) an adjudication of mental illness or mental incapacity of the spouse
by a court of competent jurisdiction while the spouse is confined in an institution by reason of mental illness. In either
case, there must be a finding by at least two of three physicians, appointed by the court before which the action is
pending, that the mentally ill or mentally incapacitated spouse has a poor prognosis for recovery from the mental
illness or mental incapacity, based upon general knowledge available at the time. A decree granted on the ground of
incompatibility by reason of mental illness or mental incapacity of one or both spouses shall not relieve a party from
contributing to the support and maintenance of the mentally ill or mentally incapacitated spouse. If both spouses are
confined to institutions because of mental illness or mental incapacity, the guardian of either spouse may file a petition
for divorce and the court may grant the divorce on the ground of incompatibility by reason of mental illness or mental
incapacity.
v. Chiles v. Chiles
1. Whether the cause of action for intentional infliction of emotional distress lies in a divorce
action?
2. We decline to recognize IIED as a separate cause of action in a suit for divorce.
3. KS. 60-1627 – Interspousal Tort
(a) An action for interspousal tort shall not be consolidated with an action under KSA. 60-1601, et seq. , and
amendments thereto, unless the parties agree to consolidation and consolidation is approved by the court.
(b) A decree of divorce or separate maintenance granted under subsections (a)(1) or (3) of KSA. 60-1601, and
amendments thereto, shall not preclude an action for interspousal tort.
(c) A decree of divorce or separate maintenance granted under subsection (a)(2) of K.S.A. 60-1601, and
amendments thereto, shall preclude an action for interspousal tort based upon the same factual allegations. An action
for interspousal tort which has been finally determined shall preclude an action under subsection (a)(2) of K.S.A. 60-
1601, and amendments thereto, based upon the same factual allegations.
(1) In actions to obtain a divorce, maintenance or an annulment of the contract of marriage if the
defendant resides out of the state or if the party with due diligence is unable to make service of
summons upon the defendant within the state.
(a) State. The petitioner or respondent in an action for divorce must have been an actual resident of
the state for 60 days immediately preceding the filing of the petition.
(b) Military residence. Any person who has been a resident of or stationed at a United States post or
military reservation within the state for 60 days immediately preceding the filing of the petition may
file an action for divorce in any county adjacent to the post or reservation.
(c) Residence of spouse. For the purposes of this article, a spouse may have a residence in this state
separate and apart from the residence of the other spouse.
(1) Jointly restrain the parties with regard to disposition of the property of the parties and provide for the use,
occupancy, management and control of that property;
(2) restrain the parties from molesting or interfering with the privacy or rights of each other;
(3) provide for the legal custody and residency of and parenting time with the minor children and the support, if
necessary, of either party and of the minor children during the pendency of the action;
(4) require mediation between the parties on issues, including, but not limited to, child custody, residency, division of
property, parenting time and development of a parenting plan;
(5) make provisions, if necessary, for the expenses of the suit, including reasonable attorney's fees, that will insure to
either party efficient preparation for the trial of the case; or
(6) require an investigation by court service officers into any issue arising in the action.
(b) Ex parte orders. Orders authorized by subsections (a)(1), (2), (3) and (4) may be entered after ex parte hearing upon
compliance with rules of the supreme court, except that no ex parte order shall have the effect of changing the
residency of a minor child from the parent who has had the sole de facto residency of the child to the other parent
unless there is sworn testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued
ex parte , the court shall hear a motion to vacate or modify the order within 15 days of the date on which a party
requests a hearing whether to vacate or modify the order. In the absence, disability, or disqualification of the judge
assigned to hear the action, any other judge of the district court may make any order authorized by this section,
including vacation or modification or any order issued by the judge assigned to hear the action.
(c) Support orders. (1) An order of support obtained pursuant to this section may be enforced by an order of
garnishment as provided in this section.
(2) No order of garnishment shall be issued under this section unless: (A) Ten or more days have elapsed since the
order of support was served upon the party required to pay the support, and (B) the order of support contained a notice
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that the order of support may be enforced by garnishment and that the party has a right to request an opportunity for a
hearing to contest the issuance of an order of garnishment, if the hearing is requested by motion filed within five days
after service of the order of support upon the party. If a hearing is requested, the court shall hold the hearing within five
days after the motion requesting the hearing is filed with the court or at a later date agreed to by the parties.
(3) No bond shall be required for the issuance of an order of garnishment pursuant to this section. Except as provided in
this section, garnishments authorized by this section shall be subject to the procedures and limitations applicable to
other orders of garnishment authorized by law.
(4) A party desiring to have the order of garnishment issued shall file an affidavit with the clerk of the district court
stating that:
(A) The order of support contained the notice required by this subsection;
(B) ten or more days have elapsed since the order of support was served upon the party required to pay the support;
and
(C) either no hearing was requested on the issuance of an order of garnishment within the five days after service of the
order of support upon the party required to pay the same or a hearing was requested and held and the court did not
prohibit the issuance of an order of garnishment.
(d) If an interlocutory order for legal custody, residency, or parenting time is sought, the party seeking such order shall
file a proposed temporary parenting plan as provided by K.S.A. 60-1623, and amendments thereto, at the time such
order is sought. If any motion is filed to modify any such interlocutory orders, or in opposition to a request for issuance
of interlocutory orders, that party shall attach to such motion or opposition a proposed alternative parenting plan
(b) Marriage. Testimony admissible to prove a common-law marriage may be received as evidence of the marriage of
the parties.
(c) Husband and wife as witness. Either party to the action shall be competent to testify upon all material matters
involved in the controversy.
(d) Corroborating testimony. A decree of divorce, separate maintenance or annulment may be granted upon the
uncorroborated testimony of either party or both of them.
viii. 60-1610
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1. SEE STATUTE BOOK pg 167
ix. 60-301
1. Upon the filing of the petition the clerk shall forthwith issue a summons for service upon each defendant in accordance
with K.S.A. 60-303, and amendments thereto. Upon the written request of the plaintiff separate or additional
summonses shall issue for any defendant.
x. 60-302
1. The summons shall be signed by the clerk, dated the day it is issued, be under the seal of the court and shall be
deemed sufficient if in substantial compliance with the form set forth by the judicial council.
xi. 60-304 – Service of Process; On whom Made
xii. 60-311
All process issued for service from any court within the state may be served anywhere within the territorial limits of the state
and, when authorized by law, may be served outside this state.
xiii. 60-312 – Proof Of Service
xiv. 60-313 – Amendment of Return
xv. 60-2301 – Wage Garnishment
(1) The county in which the petitioner is an actual resident at the time of filing the petition;
(2) the county where the respondent resides or where service may be obtained; or
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(3) if the petitioner is a resident of or stationed at a United States post or military reservation within the state at the
time of filing the petition, any county adjacent to the post or reservation.
(b) For the purposes of this section, a spouse may have a residence separate and apart from the residence of the other
spouse.
f. Divorce Counseling
i. Marriage counseling and divorce counseling – 60-1608 and 60-1617
1. 60-1608 - (c) Marriage counseling. After the filing of the answer or other responsive pleading by the respondent, the
court, on its own motion or upon motion of either of the parties, may require both parties to the action to seek marriage
counseling if marriage counseling services are available within the judicial district of venue of the action. Neither party
shall be required to submit to marriage counseling provided by any religious organization of any particular
denomination.
2. 60-1617
a. (a) Family counseling. At any time prior or subsequent to the alteration of the parties' marital status the court
may order that any party or parties and any of their children be interviewed by a psychiatrist, licensed
psychologist or other trained professional in family counseling, approved by the court, for the purpose of
determining whether it is in the best interests of any of the parties' children that the parties and any of their
children have counseling regarding matters of legal custody, residency, visitation or parenting time
ii. Know and refer clients to good therapists.
iii. See Kansas Protection from Abuse Act KSA 60-3101
g. Domestic Violence in the Divorce Context
i. Most dangerous time is at separation – Most occur during separation
III. Child Custody
a. Jurisdiction
i. Homes state is the first preference – REMEMBER – jurisdiction for custody does not follow standard
jurisdictional rules
ii. UCCJEA – KSA 38-1336 – BE SURE TO STUDY THESE STATUTES – ON SYLLABUS 5!!!
iii. Thompson v. Thompson
1. Whether the parental kidnapping prevention act furnishes an implied cause of action in federal
court to determine which of two conflicting state custody decisions is valid?
2. the legislative history of the PKPA provides unusually clear indicating that C did not intend the
federal courts to play the enforcement role that P urges
3. PKPA addendum to the full faith and credit statute
4.
iv. In Re Baby Girl Clausen
1. Competing claims of natural parents and the third party custodian with whom the child now
lives.
2. important distinctions between the foster parent and foster child have their origins in an
arrangement in which the state has been a partner from the outset.
Family Law Outline – Spring 2009 (40 of 77)
3. The PKPA expressly provides that if a custody determination is made consistently with its
provisions, the appropriate authorities of every state shall enforce it according to its terms and
shall not modify.
4. It is consistent if: court making the determination has jdx under its own laws and the state
was the home state of the child when the proceedings were commenced.
v. Stone v. Stone
1. This is a custody matter involving the state of CT, the state of NH, a parent who is a resident
of the state of CT, a parent who is a resident of NH and two minor children who reside with
their mother in the state of NH. Which state is the more appropriate and convenient forum?
2. Under the UCCJEA, the court may decline jdx over an action to determine custody.
3. UCCJEA: In determining whether a court of this state in an inconvenient forum, court shall allow
the parties to submit information and shall consider the following factors:
a. Whether family violence has occurred and is likely to continue in the future and which
state could best protect the parties and the child
b. The length of time the child has resided outside of the state
c. The distance between the court in this state and the court in the state that would
assume jurisdiction
d. The relative financial circumstances of the parties
e. Any agreement of the parties as to which state should assume jurisdiction
f. The nature and location of the evidence required to resolve the pending litigation
g. The ability of the court of each state to decide the issue expeditiously and the
procedures necessary to present the evidence
h. The familiarity of the court of each state with the facts and issues in the pending
litigation.
4. Court:
a. Children and those individuals with whom the children have been interacting over the
past 18 months, such as their pediatrician, teachers and other school authorities, and
members of their extended family with whom they have been residing during that period
of time, are all located in NH.
b. It is where the most significant evidence concerning the fitness and ability of the D and
the best interests of the children will be found.
c. NH court is more familiar with and involved in the custody issues.
vi. Anselmo v. Anselmo
1. Suit was commenced in CT. Husband filed an action in Texas. He seeks genetic testing of the
pregnant wife.
2. Court: That there is a reasonable probability that the D will suffer irreparable harm to herself
and her unborn child if she is compelled to defend multiple actions in two separate states.
3. She will suffer severe economic loss.
Family Law Outline – Spring 2009 (41 of 77)
vii. Sampson v. Sampson
1. This is an action filed by P under the Hague Convention.
2. Initially, it must be shown that the child was removed from its habitual residence under the
convention
a. Determined the child’s habitual residence – it is not a technical term like domicile; it
should be understood as being the child’s ordinary residence at the relevant time
3. Next, wrongfully removed
a. At the time of the removal or retention those rights were actually exercised, either jointly
or alone, or would have been so exercised but for the removal or retention
b. The evidence must show that he or she was exercising lawful custody rights over the
child at the time of removal.
c. The r wrongfully removed the child from Israel and that R must return the child to Israel
4. What is wrongful removal?
a. Breach of rights of custody/rights were actually exercised
b. Mother focuses on an exercising rights argument
b. Parent v. Parent
i. Child Custody: Introduction
1. since each custody case differs in its facts from all others and since the particular facts of each
case are crucial, custody cases have less importance as precedents than do decisions In other
branches of law
2. custody refers to the relationship which exists between parents and child in a normal, going
family
3. KSA 60-1610(A)(2) (2) Child custody and residency. (A) Changes in custody. Subject to the provisions of the
uniform child custody jurisdiction and enforcement act (K.S.A. 38-1336 through 38-1377, and amendments
thereto), the court may change or modify any prior order of custody, residency, visitation and parenting time, when a
material change of circumstances is shown, but no ex parte order shall have the effect of changing residency of a minor
child from the parent who has had the sole de facto residency of the child to the other parent unless there is sworn
testimony to support a showing of extraordinary circumstances. If an interlocutory order is issued ex parte, the court
shall hear a motion to vacate or modify the order within 15 days of the date that a party requests a hearing whether to
vacate or modify the order.
4. KSA 60-1614
ii. Parent v. Parent
1. Custody = residential parent = parenting time
2. Factors in awarding custody – dispute between natural parents
a. The common element – child’s best interest
b. The child’s wishes are said to be entitled to weight in placing him in the custody of one
parent or the other, if he is old enough to form a mature judgment. Less weight if 11ish,
more weight if 16ish.
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3. History:
a. At common law the father had a right to the custody of his child which was nearly
absolute
b. Today, both spouses are given equal right to the custody of the children
c. This means that upon a separation or divorce neither has a claim superior to the other
4. Other factors
a. Strength and sincerity of the desire for the child custody; the ability of the claimant to
care for the child as revealed by past performance; the remarriage and the new spouse’s
willingness to accept the child; they physical conditions which the child is to love; and
the mental health of the parties
b. The US constitution and the state constitutions all forbid the state from assisting or
interfering with religious establishments
5. Indeterminacy of best interests of the child
a. Case precedent is not helpful – always different facts
b. Custody determinations are modifiable until age of majority of child
c. Abuse of discretion standards
d. Use of behavioral science experts.
6. distinguish between appeals from an original custody order and a motion to modify
a. original custody order – BIC
i. both parties come in on equal footing
b. motion to modify – material change in circumstances since the prior custody
order – the burden is on the party seeking to change the custody arrangement
i. where do we look at change – look at parent having custody
ii. key factor – consistency
7. KSA 60-1610(a)(3)
8. 60-1610(a)(2)
9. 60-1610(a)(3)(4)
a. parenting plan is presumed to be in best interest of child
b. court has to follow, but presumption can be overcome
c. they aren’t binding, court not going to enforce if not in the best interest of the child,
have to make specific findings
iii. Modification of Decrees
1. May be made on the motion of a party or on the court’s own motion
2. Adequate notice and opportunity to be heard are constitutional requirements
3. Some courts allow a modification only if a change in circumstances
4. Some courts have a broader view that arrangements can be modified if the child’s welfare
requires it
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5. Changed circumstances can include changes in the moral and mental fitness of a party;
changes in the physical environment; wishes of the child; religious factors and the ability of the
guardian to manage the child ; remarriage of one of the parties.
iv. Wilkinson v. Wilkinson
1. we understand the law to be, when the custody of children is the question, that the best
interests of the children is the paramount fact. Rights of father and mother sink into
insignificance before that.
2. George has remarried since the time of the divorce. He is insolvent and is dependent upon his
second wife for support. The wife has remarried against and lives in UT, the child lives with
her; that she attends the public school in that city. Child testified she did not want to leave her
mother
3. The transfer of the child from her home with her mother to her father would be unwarranted.
v. Jackson v. Jackson
1. Lee filed a DV against Vera. V was awarded custody of the minor children. P filed a motion to
change the custody.
2. Appellant contends that the real, underlying reasons for depriving her of custody was her
membership in Jehovah’s witnesses and training the children in that faith
3. court
a. The evidence in the trial was replete with testimony and exhibits as to the tenents of
Jehovah’s witnesses and the possible effect of such believes upon the children.
b. The courts have no authority on the part of a child’s training which consists in religious
discipline and in a dispute relating to custody, religious views afford no ground for
depriving a parent of custody who is otherwise qualified.
vi. Palmore v. Sidoti
1. We granted cert to review a judgment of a state court divesting a natural mother of the
custody of her infant because of her remarriage to a person of a different race. The trial court
concluded that the best interest of the child would be served by awarding custody to her
father.
2. Court:
a. Such classifications are subject to the most exacting scrutiny; to pass constitutional
muster, they must be justified by compelling governmental interest and must be
necessary to the accomplishment of their legitimate purpose
b. The goal of granting custody based on the best interest of the child is indisputably a
substantial governmental interest
c. Private biases and the possible injury they might inflict are not permissible
considerations for removal of an infant child from the custody of its natural mother.
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d. The effects of racial prejudice, however real, cannot justify a racial classification
removing an infant child from the custody of its natural mother found to be an
appropriate person to have such custody.
vii. Tender Years/Maternal Preference Doctrine
1. Different versions of the doctrine
a. Unless unfit, children of tender years to mother
b. All things being equal, children of tender years to the mother
c. All things being equal, children of tender years to the mother, children of vocational and
education years to the father
d. Children of tender years to the mother, older children to the same gender parent as the
child
2. St. Clair
a. It is an elementary rule in this state that if children are of tender age they must almost of
necessity be entrusted to their mother’s care, without weighing unduly what may be
some possible shortcomings in her character or conduct.
A.Marital Investment Theory--"Professor Ira Ellman has recently proposed that the purpose of alimony is to encourage spouses to maximize
their economic potential by 'reallocat[ing] the post divorce financial consequences of marriage in order to prevent distorting incentives.' Ira
Mark Ellman, The Theory of Alimony, 77 Cal. L. Rev. 1, 50 (1989). Ellman believes that most married couples allocate their
contributions to the marriage on an economic basis: husbands, who generally can earn more, work out of the home and earn, while wives,
who generally cannot earn as much, do housework and earn little or nothing. During the marriage, this works to the benefit of both spouses
(especially where the husband has a much greater earning potential) because it maximizes income, something that Ellman thinks should be
encouraged. Unfortunately for the wife, however, such an arrangement works to her disadvantage if the spouses divorce, because the
husband leaves the marriage with the earning power he amassed during the marriage, while the wife has nothing of the sort. Ellman argues
that she should be compensated with alimony for that fact, which he calls 'marital investment.'" John C. Sheldon and Nancy Diesel Mills, In
Search of a Theory of Alimony, 45 Me. L. Rev. 283 (1993).
B.Rehabilitation Theory--These are time limited payments, with the goal that the payee will get an education or training to make him/herself
self-sufficient.
C.Expectation Interest Theory--The maintenance is paid because of the spouse's interest in having the benefit of his or her bargain by being
put in as good a position as he or she would have been in had the contract been performed. Under this theory, the person receiving
maintenance would receive the maintenance in order to be "put in as good a position as he or she would have been in" if the marriage had
continued.
D.Reliance Interest Theory--The spouse's interest is reimbursed for the loss caused by his or her reliance on the marriage by being put in as
good a position as he or she would have been in had the contract not been made (ie. had he or she not married). The difference between this
theory and the expectation theory is that the court compensates the spouse not for his or her expectation (future), but compensates the
spouse for what he or she gave up.
E.Restitution Interest Theory--The spouse's interest is having restored to him or her any benefit that he or she has conferred on the other
party. The focus of this maintenance theory is one of reimbursement.
F.Marital Tort Compensation Theory--Some courts will award maintenance in situations in which the behavior of one spouse toward the other is
tortious in nature, such as serious physical or emotional abuse.
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G.Unjust Enrichment Theory--Sheldon and Mills define unjust enrichment as having four elements: 1) reliance by one party 2) creating a
benefit to the other party 3) and a detriment to the relying party, 4) resulting in circumstances suggesting injustice. "The purpose of alimony
[under the unjust enrichment theory] is the prevention of unfairness by forcing ex-spouses to share all of the economic gains and losses that
have been produced by the marriage but that are realized after the divorce." John C. Sheldon and Nancy Diesel Mills, In Search of a Theory of
Alimony, 45 Me. L. Rev. 283 (1993).
d. PROPERTY DIVISION
i. In Re Marriage of Sommers
1. Divorce action in which husband appeals from the division of property, award of maintenance
and allowance of attorney’s fees
2. Issue: Whether it was proper for the trial court to admit evidence of fault and to consider fault
in the division of property and awards of maintenance and attorney fees when divorce was
based on incompatibility?
3. Evidence was admitted that she was having an extra marital affair
4. Court:
a. Kansas law does not require equal split of all property acquired during marriage but
rather gives the court discretion to consider all the property to arrive at a just and
reasonable division
b. 60-1601(a): The district court shall grant a decree of divorce or separate maintenance
for any of the following grounds: (1) incompatibility, (2) failure to perform a material
marital duty or obligation or (3) incomparability by reason of mental illness
c. 60-1610(b)(1): the court shall consider the age of the age of the parties, the duration of
the marriage, the property owned by the parties; their present and future earning
capacities; the time, source and manner of the acquisition of property; family ties and
obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such
other factors as the court considers necessary to make a just and reasonable division of
property.
d. We conclude that in domestic relations actions it was the legislative intent that , in all
but extremely gross and rare situations, financial penalties are not to be imposed by a
trial court on a party on the basis of fault.
e. It is difficult to conceive of any circumstances where evidence of marital infidelity would
be a proper consideration in the resolution of the financial aspects of marriage.
f. Fault, as a term of art, should not be considered in the determination of the financial
aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of
such consideration. The only exception would be some rare and unusual situation where
a party’s conduct is so gross and extreme that failure to penalize therefore would, itself,
be inequitable.
g. KSA 23-201() – all property owned by married person….so long as you keep it separate
h. 201(b) –
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i. marital property at the time of commencement of the action
ii. minute you file, it is considered marital property
iii. factors – just and reasonable
ii. Marriage of Sedbrook
1. Luanne claims the trial court erred by ruling Delbert’s city of Wichita pension is not a marital
asset subject to division and may only be considered as a source of funds for the payment of
child support or maintenance.
2. The trial court erred in finding Delbert’s firefighter’s pension was not marital property.
3. The key to an equitable distribution of marital assets is fairness, not mathematical precision.
4. The benefits represented compensation for marital effort and are substitutes for current
earnings which would have increased the marital standard of living or would have been
converted to other assets divisible at dissolution.
5. Anti-alienation provisions are designed to protect benefits from creditors and not from spouses
and family members
6. We hold that the anti-alienation provisions do not apply to claims of a spouse at the time of the
marital dissolution.
iii. Marriage of Rodriguez
1. Respondent is serving a 56 month prison term and participated in the division of disputed
property. The trial judge awarded approximately 90,000 in assets to petitioner and very little
to the respondent.
2. Issue is did he dissipate assets?
a. To dissipate – to destroy or waste, as to expend funds foolishly. Expend aimlessly or
foolishly, to use up especially foolishly or heedlessly
b. This latitude provides the judge with the discretion to consider whether marital assets
were lost as a result of the wrongful conduct of one of the parties to the marriage
c. The plain meaning of to dissipate does not require a time frame imposed by Illinois. The
Kansas legislature has provided no indication that dissipation should be interpreted
following the IL rule or that the term should have any unique significance beyond its
ordinary meaning
d. Does not require an equal split, gives the court discretion to consider all of the property,
regardless of when acquired, to arrive at a just and reasonable division.
iv. QDRO
v. Woodworth v. Woodworth
1. Issue is whether P’s law degree is marital property subject to distribution
a. Plaintiff contends that his law degree is not a marital asset. Court disagrees
b. P’s law degree was a result of mutual sacrifices and effort by both plaintiff and
defendant.
Family Law Outline – Spring 2009 (77 of 77)
c. Fairness dictates that when a spouse who did not earn an advanced degree be
compensated whenever the advanced degree is the product of such concerted family
investment.
d. Merely seeking her share of the fruits of the degree
e. Whether or not an advanced degree can physically be defined as property is beside the
point. The student spouse will walk away with a degree and the supporting spouse will
depart with little more than knowledge that he or she has substantially contributed
toward the attainment of that degree.
f. Factors: the length of the marriage after the degree was obtained, the sources and
extent of financial support given plaintiff during his years in law school, and the overall
division of the parties marital property. In determining the degrees present value, the
trial court should estimate what the person holding the degree is likely to make in that
particular job market and subtract from that what he or she would probably have earned
without the degree.
vi. Lewis v. Lewis
1. Donald Lewis contends the court erred in modifying the agreement made by the parties
awarding defendant future support payments.
2. Issue: Whether the trial court erred in its modification of the parties agreement?
3. Court is powerless to modify a valid, just and equitable separation agreement, except as to
matters authorized by statute, unless the agreement provides for or the parties consent to
such power.
4. As a general rule, the court has no continuing jurisdiction of power of modification over a
division of property after entering into an original divorce decree.
5. In finding that an agreement is valid, just and equitable, as required by the statute, the
agreement must be carefully scrutinized. A necessary corollary of the trial court’s duty to
examine the separation agreement as to whether it is valid, just and equitable, is the power to
modify such agreement prior to its incorporation into the decree.
6. We hold that if the trial court finds that a separation agreement is not just and equitable, it is
free to reject or make reasonable adjustments to the agreement, provided it does so before
entering a final judgment that merges the separation agreement into a divorce.
7. The trial court’s addition of the cash payments to the parties’ separation agreement was not
an abuse of discretion.