INTRODUCTION

• Themes
o What constitutes a family?
o Family autonomy from the state.
o Autonomy of each family member from the other members.
o Tension between family law based on state law or based on constitutional protections.
o Judicial discretion – how much power should be given to judges to make family law decisions?
o Legal mandates versus private ordering.
 Traditionally the state defined how family relationships were defined and to be followed. Now we have
people deciding for themselves how they want to order their family lives.
o Think of family law as an interdisciplinary subject:
 Law
• Tax law
• Estates
• ERISA
 History
 Sociology
 Psychology
• The state regulates three things in family law:
o Marriage
o Dissolution of relationship (cohabitants/unmarried)
o Children

• Marriage is defined in two ways:

o Covenant between the parties.
o Contract between the parties and the state.

• Modern Breakdown of Marriages

o Women in the workplace (also a strong argument for protecting those who choose not to marry because things like
spousal support are not as necessary as they used to be 50 years ago).
o No fault divorce
o It’s ok now to have kids outside of marriage; even broken down by race, more children are born outside of marriage
than inside (this includes Caucasian children).
o People delay marriage for career;

• Do most people want to marry?

o People believe in marriage—want to marry—not because of the cluster of benefits associated with marriage; there is
something to be said for the idea that people will marry if they want to marry.
o If people are saying they love marriage as a concept but choose to do something else for other reasons, it’s not
necessarily because people are choosing another benefits package.
o Thousands of benefits attached to legal marriage (tax benefits, medical decisions, hospital visitation, etc.)

• How do cohabitants act?

o Don’t share finances.
o Don’t name the other in their wills, insurance policies, etc.
o Break up w/in shorter time than marriages (easier, less messy to exit the relationship when you keep property
separate)
o 15% view it as a trial run up to marriage; other 85% view it as an alternative arrangement and do not plan to marry

• Definition of Family

o (Braschi): “interdependence, financial/emotional commitment, 1) exclusivity and longevity of the relationship; 2)

level of emotional and financial commitment; 3) manner in which the parties have conducted their everyday lives

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 and held themselves out to society; and 4) the reliance places upon one another for daily family services; they held
out as family, organized life together, joint decisions, power of attorney.

o Being in the family "net" usually involves two aspects: (1) Inter se; or (2) Third party benefit (Government, Insurers,
Employers, etc.). If you are a "family" for the first purpose, you are usually a "family" for the second.

I. WHEN ARE ADULT PARTNERS A FAMILY?

A. Rights and Duties between the Parties

Hewitt v. Hewitt (Illinois 1979)

• Wife filed for divorce against her husband, but she later admitted that no marriage ceremony had taken place and that no
marriage license was ever obtained. The divorce action was dismissed. She later amended her complaint to include a breach
of K. The couple lived together for 15 years and had three children. The wife claimed that she was entitled to half of the
husband's property because:
o She relied on his promise that what was his was hers.
o Their conduct evinced an implied contract entitling her to one half of the property accumulated during their time
together.
o His property should be impressed with a trust for the wife's benefit because he fraudulently assured the P that she
was his wife in order to secure her services.
o The wife detrimentally relied on his promises.

• The court held that an unmarried cohabitant may not recover an equal share of the profits and properties accumulated
by the unmarried cohabitants during the period of cohabitation.
o Unenforceable as contrary to public policy as enunciated by the Illinois Marriage and Dissolution of Marriage Act.
o Statute does not favor granting mutually enforceable property rights to unmarried cohabitants.
o Judicial recognition of property rights between unmarried cohabitants may undermine the Act's policy of
strengthening and preserving the integrity of marriage.
o Ruling otherwise would grant the couple a common law marriage, which was abolished in 1905.
o The wife not only lost rights that married people have but she also lost K rights that 2 uninvolved people would have
had, had they made such an agreement.

• If we honored Mrs. Hewitt’s expectation, we’re going against Mr. Hewitt’s expectation because if he had known she would
receive benefits, he would not have proceeded with the relationship.

• Mrs. Hewitt had the option to be protected:

o Marriage has a cluster of benefits, and if you want them, you have to go through the state.
o If the state said they would give Hewitt all the same benefits as someone that was married, there would be no
incentive for people to enter into the legal arrangement.

• Detrimental Reliance: Action by one party, resulting in loss that is based on the conduct or promises of another.

• Equitable Remedy: A remedy that is based upon principles of fairness as opposed to rules of law.

• Implied Contract: An agreement between parties that may be inferred from their general course of conduct.

B. The Partners' Rights and Duties in Relation to Third Parties

Braschi v. Stahl Asscs. Co. (NY 1989)

• Braschi lived with his partner Blanchard in a rent controlled apartment for 11 years until his death. Stahl Associates owned
the apartment, and they kicked out Braschi because he had not right to live there. The case turned on whether Braschi and
Blanchard qualified as "family" under the rent control regulation. Stahl argued that a “family” member definition should be

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 based on the intestacy laws, which would essentially preclude Braschi from being defined as a family member of
Blanchard’s.

• The court held that unmarried cohabitants of the same sex may be found to be members of each other's family.
"Family" should not be strictly restricted to formalized relationships (traditional notion of a family was one of blood,
adoption, or marriage).
o The term should include two adults who were lifetime partners tied together both emotionally and financially and
interdependence.
 This view comports with the traditional notion of a family AND with the expectations of the individuals
living in such a nuclear unit.
• This view furthers the goal of the legislature in that it will protect individuals from sudden
dislocation while allowing the landlord to eventually transition the unit to a free market system.
o Another definition of "family" would be inconsistent with the rent control laws, which were put in place for the
protection of individuals from dislocation and a gradual transition of rent control apartments to a free market system.

• TEST (of whether individual entitled to noneviction protection): Totality of relationship as evidenced by dedication,
caring and self-sacrifice of parties & factors below:
o The exclusivity and longevity of the relationship
o The level of emotional and financial commitment
o The manner in which the parties have conducted their everyday lives
o The manner in which the parties have held themselves out to society
o The reliance placed upon one another for daily services

• Counter-argument: In order to get protection under the totality test, couples must mimic traditional marriage.
o Imposes traditional family value
o Expectations  3rd parties have no idea whether they owe any duties
o Expectations  parties themselves may not know whether owe each other rights or duties
o Ad hoc, so judges might come out different ways
o Those not married must be confined to traditional box; those who are married do not have to be inside of the box
(i.e., not matter if commingle funds if formally married)

• Different from Hewitt because if they could have been married, they would have done so. Expectations are different for each
situation.

Protection for Cohabitants

Don’t Protect Cohabitants Protect Cohabitants

Hewitt She didn’t have the formality of a
wedding; should have known better;
legislature abolished common law
marriage, clearly did not intend for
relationships like this to receive
protection like marriage; she was not a
putative spouse b/c there was no good
faith attempt to be married;
Braschi Want people to have the autonomy to
decide for themselves how they want
their lives to be;
Changed her name; lived a common
life; may not have understood the need
for formality; she is a dependent-
represents all the reasons marriage
protects wives; encourage people to
invest, have children, etc.
He considered the apartment his home
—had the expectation that he would be
protected;

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C. Defining a "Family"

City of Ladue v. Horn (Missouri 1986)

• City enacted a zoning ordinance limiting residential units to persons related by marriage or blood. Horn and Jones were
unmarried cohabitants. The city brought and action against them to enforce the ordinance.

• The court held that a municipality may limit households to individuals related by blood or marriage.

• Where a fundamental right is not involved, ordinances regulating civic matters such as health and public welfare are
presumptively valid.
o The constitution protects the right of families to reside together, but cohabiting on a long-term basis is not
tantamount to marriage.
 To constitute a family, there must exist a commitment to a PERMANENT relationship and a perceived
reciprocal obligation to support and to care for each other.
• Here the facts could lead one to believe that they were a family but they do not COMPEL the
court to believe so.
o It comes down to the fact they were not blood related, which defeated their attempt to be
defined as a family.
o When this sort of arrangement is involved, no fundamental right is implicated, and regulations are valid if they
rationally achieve their intended effects (rational basis review).

• State essentially says that these people could be committed and they did not choose to do so- the state only protects the
commitment, so until that commitment is made the state is going to assume it does not exist.
o Sex is not enough! You have to owe each other something.
o You can’t be a family w/o marriage unless you owe each other something and you memorialize that! You
have to have duties, and those can only come from contract.
• Village of Belle Terre v Boraas
o Village ordinance limited the # non-family (blood, adoption, marriage) who could live together. The village did this
to control anti-social behavior (maintain traditional family values and patterns).
o SCOTUS upheld the ordinance as its goals were reasonable and reasonably enacted, thus making it a constitutional
restriction on the use of land.

eBorough of Glassboro v. Vallorosi (NJ 1990)

• Borough has a zoning ordinance restricting certain residential areas to single housekeeping units functioning as traditional
families or the equivalent. The intent was to keep college kids out of the neighborhoods. Vallorosi purchased a single home
for her brother and nine of his college friends. They all intended to stay in the house for four years, paid common expenses
out of a joint checking account, ate meals together, and had open access to common living areas. The borough tried to enjoin
Vallorosi's use and occupancy of the house.

• Municipalities may adopt zoning ordinances restricting certain residential zones to single housekeeping units, but the
definition of such a unit must remain flexible and cannot impermissibly distinguish between related and unrelated
persons.
o Municipal ordinances may not restrict the definition of "family" as a means of curing or preventing antisocial
conduct in residences.

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 o Requiring a unit or family to consist of less than a certain number of individuals or of person related by blood,
marriage, or adoption is impermissible.
o Permissible restriction = single housekeeping unit functioning as a traditional family with stability and permanence.
o The standard to define the unit must remain flexible.

• Part of the explanation for this case was the statute: zoning regulations have to be "reasonably designed to resolve the
problem without imposing unnecessary and excessive restrictions on the use of private property."
o State was intruding (and passing judgment) on collections of people by deciding if they met the level of "functional
equivalency."
o State doesn't look at the way you are organizing your life when you're married!!

• Question: When you are a family for one purpose, are you a family for all purposes?
o Liable if a "family" member for zoning purposes defaults on a loan?
o LaDue: If you want to be a family against the state, you have to be a family against each other.
o Glassboro: If you want to be a family against the state, you don't need to be a family against each other for all
purposes. You just have to act like a family.

II. MARITAL PROPERTY

A. What is marriage?

• Legal Definition
o It is a status that comes with predefined rights and obligations.
o It is a civil contract.
• Rights between Parties
o Property rights (during marriage)
o Access to court intervention upon separation (property, etc.)
o Right/duty to support
o Intestacy laws, elective share
o Rules guiding marriage
o Domestic violence laws

• Rights vis-à-vis Third Parties

o Medical care rights
o Immigration status
o Legal actions against others (wrongful death, loss of consortium)
o Protection against creditors (tenancy by the entirety)
o Necessaries doctrine
o Paternity assumptions
o Joint adoption
o Taxes
o Legal privileges
o Government benefits

• Social Benefits
o Social status, success
o Stability and security
o Public commitment

• Traditional Legal Models of Intact Marriage

o Marital Unity
 Husband and wife are one
o Uniformity
 Graham Case
 All marriages are the same for purposes of the law.

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 o Marital privacy
 The marriage is something the government should not be involved in.
o Fixed gender roles
 Graham Case
 Husbands and wives have certain rights and obligations based along gender
• Husbands
o Breadwinner – duty to support
o Head of household
 Final say/decision maker
 Right to discipline EVERYONE
o Property owner/manager
o Legal liability
 Husband becomes manager if not outright owner of wife’s property from before
the marriage.
• This includes the wife’s debts.
o Right to sexual services/consortium.
o Right to choose domicile.
o Fidelity
• Wives
o Duty to bear/beget children.
o Duty to care for home and hearth.
o Duty to submit to reasonable sexual demands.
o Fidelity
 Stricter than a husbands legal duty of fidelity.

B. Common Law (separate) Property States (majority position)

• Husband can own property, woman can own property before marriage.
o Property = you can make decisions about it, alienate it, mortgage it; bundle of sticks concept.

• What kinds of property do we have under Common Law?

o Real Property (previously owned by single woman)

 Husband had rights of use and rents from the land
 Husband could not alienate the land without consent from his wife
• Husband entitled to stream of money from the land.
• Husband can promise the stream of money to creditors (saddle it with entitlement to third parties
without her consent).
• Creditors can reach his rents!
• She technically owns the land and if he dies it reverts back to her

o Personal Property: husband owns outright; clothes, some items of jewelry, “personal” items are generally excluded
from this.
o Coverture is an important factor in separate property states.
 Coverture – the woman’s legal identity is covered up by the man’s identity when they marry, for the
duration of the marriage.
• Gives certain powers to the husband
• Takes certain things away from the wife
o Property rights gone
o Cannot enter into a K
o Any money earned by her is his
o Any property she brings he basically owns and manages.
 ***a separate property state with no coverture does not transfer title to the husband.

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• “Dower”
o When husband dies woman is entitled to ½ his personal property if there are no kids.
o 1/3 if there are children.
o Not reachable by creditors.

• Married Women’s Property Act – Slowly lifting the Coverture Rules

o Only applied to property brought into the marriage
o No dowry
o Woman keeps rents and the estate fee, and she can manage her own land
o Woman no longer has interest in husband’s separate property
o Women actually ended up worse off under these acts
• Community Property
o Whatever you had before the marriage is yours; whatever you accumulate during the marriage is evenly split
regardless of who earned it.

Community Property States

Common Law (separate) Property States (Arizona, California, Idaho, Louisiana, Nevada, New
Mexico, Texas, Washington, Wisconsin)
Old English System Old French/Spanish System

 Married women could not own property (unlike  All property owned equally (50/50)
single women)  Husband used to have right to manage and
 Husband had a marital estate in wife’s property control the property
during her lifetime (and if child was born, life
estate after her death)
 Wife got life estate in 1/3 of husband’s property at
his death
 No longer in existence: now we have “elective
share” (gender neutral)

Title Theory of Property Partnership Theory of Property

 Name on title = owner (Murdoch v. Murdoch)
 Exception: resulting trust
 Exception: constructive trust
Tenancy by the Entirety (in some states)
 Assumes each partner contributes equally
regardless of who paid for it or whose name is on
title
 Assets obtained prior to marriage or by gift or
inheritance during marriage are separate property
 In 1970s, state legislatures made system gender
neutral: now either spouse can manage and
control property
No Tenancy by the Entirety

 Special form of joint property ownership for
spouses
 Neither spouse may unilaterally transfer, sever, or
partition property or destroy spouse’s right of
survivorship
 Entire property shielded from creditors of either
spouse (Sawada)
 Property held jointly, solely or equally; which
kind will affect creditors’ rights
 Jointly: both must agree
 Solely: designated party can decide
 Equally: either may decide
 Upon death of one spouse, decedent may dispose
of property any way s/he wishes (no rights of
survivorship spouse keeps ½ share)
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C. The Daily Management and Control of Marital Wealth

Graham vs Graham (supplement)

- This was a contractual relationship btw the parties. They had an agreement which was that the wife would pay husband $300
and H agreed not to work and to travel w/ her. They did this for a year and then they divorce.
o The question was the contract enforceable? The court said that No.
 Why? The contract was void against public policy b/c it attempted to change the essential operations of the
marriage contract. What was wrong w/ the contract was that the man was giving up his obligation of
support and the husband had it and he cannot bargain his way out of it.
• The marriage goes wherever the husband goes. The parties also contract out of that obligation as
the husband gave up this right by the agreement of the husband going where the wife wants to go.
• The case was after the MWPA, so women had a right to make contracts, and she could contract w/
her separate property. However, she still had obligations in the marriage which did not change
o Tail end of coverture – she could not enter into a K, especially with her husband.
o But even if she could enter a K the wife could not enter in this K as it was not enforceable
because it violates public policy as the man was giving up his duty of support.
 Coverture – the woman’s legal identity is covered up by the man’s identity when they marry, for the
duration of the marriage.
• Gives certain powers to the husband
• Takes certain things away from the wife
o Property rights gone
o Cannot enter into a K
o Any money earned by her is his
o Any property she brings he basically owns and manages.
• Married Woman Property Acts gradually restore a woman’s rights and roll back coverture.

McGuire v. McGuire (Nebraska 1953) (majority rule in the US)

• Couple was married for 33 years. The wife raised chickens and sold poultry and eggs to buy her clothes and groceries. The
husband did not permit her to use charge accounts and he never told her how much money they had. She sued to recover
suitable maintenance and support money. The trial court ordered that the husband was obligated to furnish household
improvements, purchase her a new car, pay her travel expenses to visit her children, extend her credit for the purchase of
necessaries, and allot her a monthly allowance.

• In order for one spouse to maintain an action against the other for support and maintenance, the parties must first be
separated or living apart.
o The general rule provides that a husband has a duty to provide his family with support and maintenance
commensurate with his financial position.
 In satisfaction of this duty, the wife may use the husband's credit to purchase necessary items.
o If a husband abandons his wife without providing her with a means of support, then the wife may bring an equitable
action to compel such maintenance, even though she does not simultaneously seek a divorce.

• The husband supported her in a consistent manner throughout their marriage, and he has thus satisfied his duty of support.

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 o If this were a non-intact marriage, she would be entitled to support only up to the standard of the marriage,
which was crappy and cheap.
o If the court picks the standard of the neighbors over the standard of the marriage, it’s making a value judgment and
it’s extremely intrusive into their private lives

• Public Policy Position: If the state intervenes in the case, other neighbors would be encouraged to file suit if their husbands
were hording money. Thus, if the court goes down this path, there is a “flood gate” notion that the state would be
overwhelmed with these cases.
• Public Policy Position – marriages themselves will be better if the state respects their privacy and allows the H and W to
work their issues out on their own.
o Respect for the Privacy of the marriage.
 The court is choosing family autonomy over individual equity
o Downside of this Respect for Privacy doctrine
 If the people in the household don’t have an equal claim to the property or money then it’s really the one in
control of them that makes the decisions.

• The state is less likely to intrude into the family relationship if it is intact.

• Counter-argument: Wife should not be denied relief solely on the basis that she does not lie separate and apart from her
husband, nor is she seeking a divorce – this is forcing the wife to separate or get a divorce in order to get support (using the
traditional grounds of neglect).
o An action to compel the payment of support should be equally available to a spouse who is denied the right to
adequate maintenance in her own home.
• Aftermath of McGuire
o What happens after his decision, what are π options
 Accept decision and continue to live the way she did
 She could pledge her husband’s creditthis introduces the idea of necessaries
• This means that the husband has to provide these necessaries such as food, clothing, shelter etc
and if he does not provide these necessaries, then the wife could procure necessaries from 3rd
parties.
o However, as a pragmatic matter this might not work b/c merchants want to be assured of
their money and they don’t want to have to institute a lawsuit against husband to get their
money. Also on a personal note, the husband might throw a fit if he realizes that the wife
pledge his credit and cut her off from doing so.
 She can seek separate or divorce1953 the only grounds of r divorce in NY was adultery. However,
Nebraska was fault state and this case the fault were very low, but there was not that much fault. She
probably could make a case for separation.
 The husband as the CL law duty of support unless the wife breach her duty, and if there was a breach then
the husband can leave the marriage. The idea of necessaries develops from the duty of the husband. The
merchant has to show in some context that the husband was wrong in not providing the necessaries

Sharpe v. Buckstaff (Wisconsin 1980)

• Wife purchased a sofa from Sharpe for use in her home. He husband had previously notified the credit bureau that he would
not be responsible for credit extended to his wife. Neither spouse ever made payments on the sofa, but they accepted delivery
and used it in their home.

• When an item or service necessary for the maintenance of the family is purchased, and no payment for that item has
been tendered, the husband is held primarily liable therefore and an action for an implied contract may be
maintained.

• Doctrine of Necessaries: A party who sells items that are necessary for sustenance or support to a wife or child may charge
the husband or father for the cost of those items.
o Necessaries = food, clothing, medical attention, transportation, habitation, and furnishings commensurate with the
husband's ability to provide therefore.
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 o The burden is on the creditor to demonstrate that the item provided in fact constituted a necessary, and that the
defendant husband failed to provide it for his wife or family.
o Rationale supporting the rule = state interest in safeguarding the welfare of family members.

• Counter-argument: The rule placing primary liability on the husband to a third party is not in accordance with state law
imposing support obligations on both spouses in relation to their economic status.
o The rationale behind the common law doctrine of necessaries was the married woman's inability to contract. Now
that that legal infirmity has been removed, the spouses should be equally liable for necessaries.
o Va. Code § 55-37: Except as otherwise provided in this section, a spouse shall not be responsible for the other
spouse's contract or tort liability to a third party, whether such liability arose before or after the marriage. The
doctrine of necessaries as it existed at common law shall apply equally to both spouses, except where they are
permanently living separate and apart, but shall in no event create any liability between such spouses as to each
other. No lien arising out of a judgment under this section shall attach to the judgment debtors' principal residence
held by them as tenants by the entireties.

• Four schemes of ordering the liability of spouses for “necessaries” purchased by one of them:
o Husband liable for his own debts and those incurred by his wife
o Husband is primarily liable for necessaries and the wife only secondarily responsible
o Joint and several liability, allowing the creditor to choose either or both
o Creditor should seek to recover first against the spouses incurring the obligation, making the other secondarily
liable.
• Sharpe Furniture, Inc. v. BuckstaffΔ bought a sofa from π. under the contract, Δ was to pay $621.50 within 60 days after
the item was received, if not paid then there was an interest of 1.5% of month. However Δ never paid for the sofa even
though they used it in their house. Holding: the court stated that the when an item is obtained for the benefit of the family
which is necessary and no payment for that item or service has been made, the elements of an action for an implied-in-law
contract exist and the husband is primarily liable. Therefore if the creditor/π proved that the sofa was reasonable needed by
the household then the husband was primarily liable to the π. the court as a result found that the husband was primarily liable
for the cost b/c the sofa was a legally necessary item.
o Rule of Necessariesnecessaries are such articles of food, or apparel , or medicine, or such medical attendance
an nursing…or such provision for her protection in society, an the like, as the husband, considering his ability and
standing, ought to furnish to his wife for her sustenance, and the preservation of her health and comfort
o What is the justification for the doctrine of necessaries? Is this a good decision? Should necessaries be strictly
construed against merchants and liberally construed against the parties. Why does the court follows the necessaries
doctrine?
 Court said it is a status issue and not a contract issue and that a husband should support his wife
 The husband’s obligation is not really to his wife but family unit and its his obligation to support the family
unit
o The court stated the husband is primarily liable for several reasons:
 For the benefit of the family, any benefit for an individual member of the family is still for the benefit of
the family
 For the benefit of the family that is necessary
• is relevant to the person status and ability to afford things in life
 No payment for the item has been made
 Husband is primarily liable
• This means that the creditor has to go after the husband first before he can go after the wife
o N.B Necessaries does not exist anymore in American Law
• Reconciling McGuire and Buckstaff
o In McGuire you cannot get judicial aid unless she leave the husband or is abandon by her husband under the theory
of constructive abandonment which means that he is not providing for her even though they still live together.
Constructive abandonment can be no sex
o In Buckstaff the court stated that the wife can place the husband’s credit based on their station in life test
 In reconciling the two cases the court has allowed one party to have the power in the marriage to the
detriment of another party

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Orr v. Orr (SCOTUS 1979)

• William and Lillian Orr were divorced in February 1974. William was ordered to pay monthly alimony of $1,240. Lillian
sued for lack of payments in 1976. Alabama's alimony statutes only required husbands to pay alimony, but not wives.

• Alabama's statutes were unconstitutional. Under the Equal Protection Clause, "classifications by gender must serve important
governmental objectives."
o Gender was not an "accurate proxy" for financial need.

D. Spousal Contracts during Marriage

Borelli v. Brusseau (Cal. 1993)

• Husband had a stroke, and he did not want to go to a nursing home. He and his wife entered into an oral agreement whereby
he promised to leave her an interest in certain properties in exchange for her promise to care for him at home. She then acted
in accordance with the agreement for the rest of his life. The husband only left her $100K and an interest in their residence in
his will, the remainder of his estate passing to his daughter.

• Contracts granting a wife compensation in exchange for providing care and support to her husband lack
consideration and are void as against public policy.
o By virtue of the marital institution, husband and wife contract with each other to provide mutual duties of care and
support, and they cannot contract to alter this obligation.
o The marital duty of support embraces more than solely financial obligations (includes an obligation to provide care
for an ailing spouse).
o Marital obligations of support are personal to the spouse, and cannot be delegated to third parties.
o A spouse may not receive additional consideration for providing care for a sick partner because such support was
bargained for in the initial marriage contract.
• Borelli v. BrusseauHusband was very sick, and he made an agreement with his wife that if his wife would take him home
he would leave property for her and money but he did not.
o Is this an enforceable contract? No. the court stated that there was no consideration on behalf of the wife b/c these
are things that the wife is otherwise obligated to do in a marriage. Therefore a pre-existing obligation cannot be
consideration for a contract. The change in law from MWPA has just been to equalized relationships at it pertains to
gender and it doesn’t eliminate the obligations. There is a status idea that the obligation of marriage carries w/ it
these responsibilities
o In McGuire the court would have to come in and supervise the marriage, but here the husband is dead so the concern
to stay out of martial stuff is not present here. The court is saying that a marriage is supposed to look a certain way
and should not be a business contract

• Compensating someone for a duty they owe anyway is against public policy!!

• Such negotiations are antithetical to the institution of marriage as the legislature has defined it.
o Because of the nature of the marriage, the court decides that she “owes” this to him

• Counter-argument:
o This result dates back to couverture, which has been abandoned in favor of mutual obligation of care and support.
This encompasses the duty to provide medical care for an ill spouse.
o Wife was not obligated to remain in the marriage. Had she left and returned on the inducement of the contract it
would have constituted valid consideration.
o Family is a buffer against the state. When the state intervenes, it destroys family autonomy.

Violence btw Spouses

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 a. Crime Btw SpousesDomestic violence is grounds for divorce in NY, this has not always been the case but it is
now. The law says that if it is unsafe for the person to cohabitate then that is ground for divorce. The law treats violence in a
marriage is different from how they treat violence btw strangers.
i. One of the ideas is that the husband is the head of the household and that he should be listened to. The legal
idea is that the husband should be listened to and the wife should be kept in line. There was a change that took place
in the 19 century due to the MWPA where women became legally separate for men in terms of property but not their
duties. This suggests that the man did not have a right to chastise the wife
1. The divorce laws loosened up and cruelty became grounds for divorce. However the court likes to
stay out of the marriage to ensure martial harmony
2. If you are family and have a domestic dispute your case goes to the family court specifically the
family offenses part. This was not criminal court, the court look to reconstructing and ameliorating the
structure of the family. This was more a rehabilitative things. The aim was to make the family rebuild the
family rather than prosecuting any party
ii. Marital Rape
1. It was an idea that interference w/ his wife was interference w/ his property.
2. A stay away order is a variety of an order of protection
3. There is a federal law that made it a crime for bodily injury of a spouse by another spouse
4. To what extent should control be controlled by the state or the victim
iii. People v. Libertahusband had to stay away from his wife but the husband still had visitation privileges.
The husband got her to go to his motel w/ her son and abused her and raped her. Holding: The court said that the
martial exemption doctrine is denial of EPC b/c it treat two groups of men differently, but the court said that this
does not help the Δ. Unless you are living separate and a part the court is not going to call it rape, if the parties are
married
1. Marital exemptionmarried man ordinarily can’t be convicted of forcibly rape/sodomy of wife
a. NY found that the marital exemption is unconstitutional

III. PRENUPTIAL AGREEMENTS

A. Purposes

• Premarital Agreement: An agreement entered into by two individuals, in contemplation of the impending marriage, in order
to determine their rights and interests in property upon dissolution or death.
o Used to protect assets at divorce or death
o Protect children from prior marriages
o Make sure motives and conduct remains pure (polices conduct during marriage)
o Limits expense of terminating the marriage (limit transaction costs)
o Reward for good conduct! Set norms for your marriage above societal norms (or create an agreement that reflects
your unique vision for your marriage)
o Elect a community property rule for your marriage in a common law state
o You might want to have more than what the default rule would apply
 E.g. if the marriage is intact, parents are not liable for paying for college, but when parents are divorced,
each might have an obligation to pay for school. So, in a pre-nup, you could dictate who would pay for the
kids' colleges. Thus, you can extend duties above the floor.
o You can control alimony: if we divorce and there is alimony, it will end upon your continuous cohabitation for more
than 90 days (aggregate); so you can stop the application of certain rules

• TEST: Must be (1) entered into voluntarily, (2) supported by consideration, and (3) satisfy the statute of frauds.

• Contracts concerning property division and spousal support at divorce are not inherently contrary to public policy.

• Public policy favors settling divorces amicably, so parties may not waive permanent spousal support by premarital
agreement.
o Most cases require either (a) full and adequate provision for the spouses OR (b) that the spouses make full
disclosure to each other.

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Sanders v. Sanders (Tenn. 1955)

• Sanders were twice divorced and remarried a third time. Prior to doing so, the wife insisted that the husband sign a pre-nup
stating that each party would hold all present and future property jointly. It also stated that should either party file for divorce,
the filing party would forfeit to the other all right, title, and interest in al property held jointly. The husband later filed for
divorce and requested that the court void the agreement.

• An antenuptial contract requiring forfeiture of jointly held property when a spouse files for divorce does not violate
public policy.

• It is necessary to construe and determine the effect of a contract in order to determine whether it violates public
policy. (Purpose + situation of parties when made + public policy concerns)
.
o Purpose:
 Reasonable that each would want to avoid further divorce actions and protect property
 Consummation of marriage, not forfeiture provision, was the consideration.
o Situation of Parties:
 Forfeiture provision seemed like a good idea to the parties at the time of its creation as there is no record of
it being executed in bad faith
o Public Policy Argument:
 These types of forfeiture clauses are often used in wills and are not considered contrary to public policy in
those cases.
 Good faith exception ensures that only bad faith divorce filings are punished.

• Would Sanders apply in a world with no-fault divorce? No. The agreement would probably not be enforceable today because
he would have ample ability to exit; it would be more about the penalty for exiting, which would trap them in the marriage
and be against public policy.

Simone v. Simone (Pa. 1990)

• The night before their wedding , the groom presented the bride with a pre-nup, which she signed without benefit of counsel.
The agreement limited the bride to support payments of $200/week in the event of separation or divorce, with a maximum
total of $25,000. The parties separated later and began divorce proceedings after two years of separation, during which time
the husband reached the $25K limit.

• Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their prenuptial agreements.
o Pre-nups are contracts and they should be evaluated the same way as other contracts.
o Contracting parties are usually held to their agreements without regard to whether the terms were read and fully
understood. This is true despite any unreasonableness in the agreement.
o The reasonableness of a pre-nup is beyond judicial review. Such inquiries undermine the functionality and reliability
of prenuptial agreements.
o There is no merit to the contention that parties entering a prenuptial agreement must per se obtain independent
counsel.

• Counter-Argument
o Parties to a pre-nup do not stand at arms' length, as do most contracting parties.
o There should be a full and fair disclosure of the intended spouse's worth, but the parties should, also, be fully aware
of their statutory rights at the time of contracting.
o Circumstances may render a prenuptial agreement, valid when drafted, completely unfair at divorce. Courts should
be allowed to make case-by-case determinations as to whether circumstances warrant invalidating a pre-nup.

• Barry Bonds Rule: The party against whom enforcement is sought must have not less than seven calendar days between the
time that party was first presented with the agreement and advised to seek independent legal counsel and the time the
agreement was signed.

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Uniform Premarital Agreements Act

§ 1. Definitions. As used in this Act:

• (1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be
effective upon marriage.
• (2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property,
including income and earnings.

§ 2. Formalities: A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.

§3. Content
• (a) Parties to a premarital agreement may contract with respect to:
o (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and
wherever acquired or located;
o (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest
in, mortgage, encumber, dispose of, or otherwise manage and control property;
o (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any
other event;
o (4) the modification or elimination of spousal support;
o (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
o (6) the ownership rights in and disposition of the death benefit from a life insurance policy;
o (7) the choice of law governing the construction of the agreement; and
o (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute
imposing a criminal penalty.
• (b) The right of a child to support may not be adversely affected by a premarital agreement.

§ 4. Effect of Marriage: A premarital agreement becomes effective upon marriage

§ 5. Amendment; Revocation: After marriage, a premarital agreement may be amended or revoked only by a written agreement
signed by the parties. The amended agreement or the revocation is enforceable without consideration

§ 6. Enforcement (based on UCC 2-302 and Restatement of Contracts §208)

• (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
o (1) that party did not execute the agreement voluntarily; or
o (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
 (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other
party;
 (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided; and
 (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial
obligations of the other party.
• (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination
causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or
marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the
extent necessary to avoid that eligibility.
• (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

§ 7. Enforcement: Void Marriage: If a marriage is determined to be void, an agreement that would otherwise have been a premarital
agreement is enforceable only to the extent necessary to avoid an inequitable result

IV: ENTERING CEREMONIAL MARRIAGE

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A. Basics and Formalities

• Four Requirements for Marriage:

o The parties must agree to marry.
o Parties must be eligible to marry (competent).
o Parties must be eligible to marry each other.
o Parties must go through whatever forms are required for marriage in the state where they intend to marry.
 License and solemnization thru a ceremony recognized by an authorized official.

• Marriage: social and economic rights and duties of husband and wife for domestic relations purposes.

• A "voidable" marriage can become legitimate in the future (ratified by sex/cohabitation)

o Need a decree
o 1 of 2 parties can invalidate
o Duty of support exists
o Children will be legitimate

• A "void" marriage requires no ratification—it's not possible for it to ever exist.

o Same sex marriages in most states
o Marriage between siblings or consanguine family members
o Medically prohibited marriages
o No duty of support exists
o A party or a third party can invalidate
o Children ≠ legitimate
o Courts will usually not hold a marriage void unless the legislature expressly requires that result.

• Many states impose a minimum waiting period between the issuance of a marriage license and solemnization of the marriage
(this can sometime be waived)

• A ceremony is generally required in all states that do not recognize common law marriage.
o Form is rarely specific, usually left to the parties.

Uniform Marriage and Divorce Act – not widely adopted by fairly typical of state law approaches (can find the rules for NY in the
Domestic Relations Statutes)

§203: When a marriage application has been completed and signed by both parties to a prospective marriage and at least one party has
appeared before the [marriage license] clerk and paid the marriage license fee of [___], the [marriage license] clerk shall issue a
license to marry and a marriage certificate form upon being furnished:
(1) satisfactory proof [of age]; and
(2) satisfactory proof that the marriage is not prohibited;
(3) a certificate of the results of any medical examination required by the laws of this State.
- not many states require this anymore.
(4) short waiting period before the marriage can take place.

§206:
• (a) A marriage may be solemnized by a judge of a court of record, by a public official whose powers include solemnization
of marriages, or in accordance with any mode of solemnization recognized by any religious denomination (ordained in a
recognized religion), Indian Nation or Tribe…
• (b) If a party to a marriage is unable to be present at the solemnization, he may authorize in writing a third person to act as his
proxy…
• (d) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally
qualified to solemnize, it, if either party to the marriage believed him to be so qualified.
o So online ministers could qualify (Universal Life Church).
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  Pickard v Pickard (NC 2006)
• Couple married by native American shaman ordained by ULC
• Husband files for annulment 11 years after marriage performed saying marriage not valid because
the officiator was not authorized.
o Annulment can be granted if the formalities of marriage are not followed.
 But courts most likely won’t annul the marriage if the marriage has been in
place for some time and the formality not being followed was an oversight or
mistake, instead of being intentional.
 It is a decree that no VALID marriage existed.
• A more common basis for annulment is that one of the substantive
bases for it exist:
o No mental capacity to marry
o No intent to marry
o Fraud causes on of the parties to marry.
o One partner is too young to marry.
o One partner is already married.
• Court agreed that the marriage was not validly contracted.
o But the court did not grant the annulment because it was an issue of judicial estoppel
whereby the husband asserted that he was married in a proceeding where the couple
adopted a child.
 So the husband was estopped from changing his position on the marriage
because his wife and adopted child would be harmed.

Valid Marriage Requirements

1. There has to be a voluntary agreement to marry.
a. Because the partners are entering into a contract to marry.
b. Each partner must have the capacity and intent to marry.
2. Intent to marry
a. Limited purpose marriage
i. No intent to carry out a true marriage
b. Jest or drunk marriage.
i. The couple will seek an annulment.
1. If it is done quickly (seek annulment) the court will most likely grant it.
2. Based on lack of intent/agreement.

The Agreement to Marry

1. The Content of the Agreement
a. With a marriage, you are entering into a contract, with the state as a third party beneficiary. What do you obligate
yourself to?
i. Support—necessaries. Parties agree to take care of one another so state doesn’t have to. This is only
support at some reasonable level.
1. Faithfulness
a. This is really extent of agreement, but parties can agree to additional terms.
ii. Lutwak v. US (1952): The Court said that in order to get in under this statute, they had to meet the
definition of what Congress defined marriage as. However, in most states it would be considered a voidable
marriage. However, here it is void because it doesn’t meet the definition under the statute (you are married
for all purposes except for the purposes of immigration law). (Petitioners have been indicted for conspiracy
to defraud the government. Treitler attempted to get her foreign relatives into the United States by having
them “marry” war veterans. They could then enter the US under the War Brides Act. There was no intent
for the marriages to be real marriages once parties were in the U.S. Lutwak went to Paris and went through
a marriage ceremony with his aunt by marriage. They entered the U.S. under pretense of being married,
but never lived together. Couple got divorced in 1950.)
1. Petitioners argue—(1) conspiracy was not unlawful because valid marriages and (2) trial court
erred in allowing wives to testify against husbands.
2. Court says the validity of the marriages is not material. It is merely part of the conspiracy to
defraud the government.
a. The key is the petitioners did not intent to live out a marriage in the expected sense.

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 3. Court rules in favor of the government.
4. This court calls this a “sham marriage,” but it is really a limited purpose membership—to
gain access to the US. While limited purpose marriages may be accepted, this entire
marriage was an attempt to defraud the government.
a. A legitimization marriage (like to make a kid legit) would normally be held valid in
order not to injure the child.
b. Today a court would look behind the formalities in order to determine if the
marriage was “real”. If it isn’t, courts will likely find the marriage is not a true one.
5. This case helps illustrate that “marriage” can be defined differently in different areas of the law—
State law: limited purposes marriage valid, but not legit under War Brides Act.
6. Spouses can testify against one another if the court finds the marriage is a fraud.
iii. NOTES:
1. Prenuptial agreements designed to negative the effects of a marriage are generally void as against
public policy.
a. A void marriage does not require an annulment because it never existed. A voidable
marriage would be eligible for an annulment.
b. Different defects render a marriage void or voidable:
i. Void:
1. Incest
2. Bigamy
ii. Voidable:
1. Age
2. Fraud
3. Etc.
2. Generally, if marriage was entered into for illegitimate purpose, will not be valid as to that
purpose (i.e., H and W marry after H threatens wife to marry him—he wants her to marry him to
invoke husband-wife testimonial privilege at trial—court forces wife to testify).
b. Capacity to Agree
i. Must have mental capacity to understand what contract means and nature of the relationship.
ii. If no capacity courts will typically annul the marriage. Even if temporary incapacity (drunk)
iii. Edmunds v. Edmunds (1980)- (Renne is bringing an action to annul the marriage of her ward Harold and
Inez on the grounds that he did not have the mental capacity to enter into a marriage contract. He was born
and institutionalized at a home for the mentally retarded.)
1. There was a lot of testimony concerning whether Harold understood the concept of marriage.
2. Court says that marriage is a civil contract, but only a contract in a very loose sense of that
word. The parties are merely entering into a social status and thus are only required to have
the mental capacity to assume that status.
a. The parties have to have sufficient capacity to understand the nature of this
contract and to understand the obligations and responsibilities it creates.
i. Sharing of property.
ii. Duty to support the spouse.
3. Statute—marriages are void when either party, at the time of marriage, is insane or mentally
incompetent to enter.
4. Mere weakness of mind will not void a marriage unless it produces a derangement sufficient to
avoid all contracts by destroying the power to consent.
5. Marriage is held valid. Deference given to trial court which – even though there was much
conflicting testimony about Harold’s mental capacity – was in the best position to observe the
witnesses and weigh the evidence.
c. Fraud and Duress
i. In Re Marriage of Ramirez-In 1994 or 1995, Jorge Ramirez, an immigrant from Michoacán, Mexico,
applied to become a legal resident of the United States; he was sponsored by his mother, herself a legal
resident. In 1999, Jorge and Lilia Llamas participated in a marriage ceremony performed by a priest or
other official from Jalisco, which made it appear that they had been married in Mexico. The couple had not
obtained a California marriage license. In 2001, Jorge and Lilia learned that their marriage was not valid
under Mexican law because Lilia’s divorce had not been final for 300 days before their marriage. Also,
Jorge feared that he might be denied his green card because the Mexican marriage certificate seemed to
indicate that “he had not been in continuous residence” in the U.S. Jorge and Lilia obtained a confidential
marriage license and remarried. After Jorge’s mother died, Lilia replaced her as Jorge’s sponsor for
17
 permanent residence and citizenship. In April or May 2004, Lilia signed the final document relating to
Jorge’s immigration status. Two weeks after that, while they were dining out, Jorge asked Lilia for a
divorce, saying that he was in love with someone else and always had been. He moved out in June. Soon
thereafter, Lilia learned who the “other woman” was — her sister Blanca, with whom Jorge had been
having an affair since 2001. Jorge filed for divorce on April 21, 2005; Lilia filed her response, along with a
request for an annulment, on June 22, 2005. At a bifurcated trial on the status of the marriage, Jorge
testified that he became a permanent resident in 2002, and asserted that he had no relationship with Blanca.
Lilia presented evidence of phone messages and the overheard conversation to support her claim that her
second marriage to Jorge should be annulled on the ground of fraud.
1. When the trial concluded, the court found that the first marriage was void under the laws of
Mexico, and that neither Jorge nor Lilia was a putative spouse because neither had acted in good
faith in entering into it. Turning to the second marriage, the court found that Jorge had committed
fraud by marrying Lilia while he was having a sexual relationship with Blanca that he did not
intend to terminate. The court reasoned that “this kind of fraud goes to the heart of the marital
relationship”; thus, the second marriage was on the ground of fraud. The court also found Lilia
was putative spouse for purposes of dividing the marital property.
2. Jorge appealed, but a Fourth District majority affirmed.
3. To qualify as a putative spouse, they reasoned, Jorge had to show that he had a good-faith belief
that the first marriage was valid, “based on facts that would cause a reasonable person” to have
such a belief. Here, the justices found, a reasonable person could not believe in the validity of a
marriage performed in California by a Mexican official and memorialized in a document stating
that the wedding had been held in Mexico; at the very least, the facts would put such a person on
notice that its validity was a little iffy. Given that, the justices agreed with the trial court that Jorge
was not a putative spouse of the first marriage.
4. Jorge next contended that his relationship with Blanca did not constitute the type of fraud that
made his second marriage voidable. The majority justices noted that, a marriage may be annulled
for fraud only in an extreme case where the particular fraud goes to the very essence of the
marriage relation.” They noted that the trial court’s finding of fraud was based not on Jorge’s
efforts to get his green card, but on “Jorge’s intent to continue the ongoing simultaneous sexual
relationships with Lilia and Blanca” at the time he married Lilia in 2001. The court reasoned that
spouses contract toward each other obligations of mutual respect, fidelity, and support. Here, they
continued, when Jorge married Lilia, he knew that he did not intend to perform his obligation of
fidelity to her by giving up his relationship with Blanca, but he purposely deceived Lilia into
believing that he would be faithful. Clearly, the majority concluded, this is fraud that “directly
relates to a sexual aspect of marriage - sexual fidelity.” Accordingly, the majority held Jorge
committed fraud, and Lilia was entitled to an annulment.
5. Traditionally fraud in a marriage was viewed in the prism of sex/procreative and fidelity aspects.
a. An intent not to consummate (or an inability and lying about it) the marriage is fraud.
b. If a woman says the child is her husband’s but it isn’t, this is fraud.
6. Modern Trend
a. The lie must relate to something that was essential to the marriage BUT it can be a
subjective “essential-ness”. So if one of the partners think the aspect was essential and
there was fraud concerning it, the court may consider annulling the marriage.

B. Substantive Restrictions on Marrying – ELIGIBILITY FOR MARRIAGE/IMPEDIMENTS TO MARRIAGE

Background Framework

Loving v. VAΠ challenged a criminal statute in VA that made it a crime for black and white persons to get married. During this time
there were 16 states that prohibited interracial marriages. The law implicated a due process and an equal protection claim. The due
process claim was substantive; the equal protection claim was about race discrimination. The decision did not have anything to do
with marriage, but race discrimination of which race is a constitutionally protected right analyzed under the strict scrutiny on the basis
of EPC.
A. A fundamentally protected right the state has to go to some distance to protect these rights. Once it is decided that there is a
constitutionally protected right such as race, the burden shifts to the state for them to prove that the purpose of act/statue serves
some governmental purpose
B. Due process has two idea:
a. Procedural Due Processthe right to lawyer, right to subpoena witnesses etc…
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 i. The nature of the fighting is how much due process is due
C. Substantive Due ProcessThere are some things that the states cannot uphold that impinge on a person constitutional protected
rights. The right to privacy is a substantive due process right.

1. Poverty

Zablocki v. Redhail (SCOTUS 1978)

• WI enacted statute requiring residents who had minor children not in their custody to obtain a court order certifying they
were current on their child support before being granted a marriage license. Redhail was behind on his child support
payments ($3,700) and was not granted a marriage license by Zablocki. He filed a class action suit against the state along
with others who were denied marriage licenses because of child support arrearages.
• Reasonable regulations that do not significantly interfere with the ability to enter into marriage may be imposed by
the state.
• There is a fundamental right to marriage under the Due Process Clause of the 14th Amendment.
o Triggers strict scrutiny: If a statutory classification significantly interferes with the exercise of a fundamental
right, then it cannot be upheld unless it is supported by sufficient important state interests and is narrowly tailored to
effectuate only those interests.
o There are other ways to compel payment of child support without infringing on this fundamental right.
• Concurrence: The statute is unconstitutional because it encroaches on the liberty interest protected by the Due Process
Clause. The right to marry should be defined and limited by state law.
• Dissent: Strict scrutiny not triggered; Under the Equal Protection Clause the statute needs to pass the rational basis test, and
under the Due Process Clause it needs to show that it bears a rational relation to a constitutionally permissible objective. As
such, the statute was a permissible exercise of the state's power.
• Zablocki says there is a fundamental right to marry that has nothing to do with race. There can be restrictions, but they must
be consistent with rights of equality and privacy (days of state reign on marriage is over and fed. constitution imposes basic
fundamental right).

2. Monogamy

1. Theory behind prohibiting

a. State has a strong interest in promoting monogamy
b. Monogamy is tied to the preservation of democracy
2. Reality
a. US not founded on principles that include polygamy
b. 19th century prohibitions as a result of anti-foreigner sentiment.
3. Where is the law today?
a. Usually codified in statutes, much like age and consanguinity restrictions.
b. A bigamist marriage is void.
c. It is a crime under both federal and state law
d. The crime is generally worded as “purporting” to marry another spouse while already married (because a bigamist
marriage is void it never existed so you can only purport to marry someone else).
i. Utah’s law goes further by not only including the purporting to marry prong but by also cohabiting with
another. This is because the fundamentalist Mormons who are bigamists will not go thru an official
ceremony for the marriages after the first.

State v. Holm, (Utah 2006).

In May 2006, a majority of the Utah Supreme Court again upheld the constitutionality of Utah’s bigamy statute. At the time, Holm
was legally married to Stubbs’s sister. Holm challenged the constitutionality of the “purports to marry” prong of the bigamy statute,
and alternatively argued that engaging in private unions with multiple “spiritual wives” is a constitutionally protected expression of his
religious beliefs as a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints.

Holm invoked the landmark civil rights case, Lawrence v. Texas, to support his defense that the state could not constitutionally

19
interfere with his choice to consummate his intimate relationship with Stubbs. In Lawrence, a majority of the United States Supreme
Court held that a Texas statute criminalizing sodomy violated the Due Process Clause of the Fourteenth Amendment, and, absent
injury to a person or abuse of an institution the law protects, consenting adults enjoy the freedom to define their private intimate
relationships within “the confines of their homes and their own private lives.” Although the Lawrence majority intentionally avoided
interpreting the Fourteenth Amendment to protect same-sex or plural marriages, it notably left open the issue of whether couples enjoy
the constitutional freedom to consummate their relationships with commitment ceremonies that do not confer state recognition of their
unions.

Four of the Utah Supreme Court’s five justices rejected Holm’s constitutional defenses, holding that his behavior fell “squarely within
the realm of behavior criminalized by [Utah’s] bigamy statute.” Writing for the majority, Justice Matthew Durrant argued that the
framers of the Utah State Constitution intended the bigamy statute to criminalize not only attempts to gain legal recognition of
duplicative marital relationships, but also attempts to form duplicative marital relationships that are not legally recognized. Durrant
cited Reynolds v. United States, an 1879 United States Supreme Court ruling that upheld the prosecution of a religiously motivated
Utah polygamist, and asserted that a state statute may restrict an individual’s free exercise of religion as long as the statute does not
impact people of different religious faiths differently. See, 98 U.S. 145 (1878). Durrant also dismissed Holm’s defense based on
Lawrence, claiming that the ruling was limited to private, intimate homosexual acts, and that unlike private intimate conduct,
“marriage has always been recognized as an institution the state has an interest in defining.”

The dissent basically said the state didn’t have an interest because here the polygamist was not interested in receiving the benefits of
marriage for the marriages after the first one. But the state also has an interest in preserving monogamy (as a precondition to
democracy, in the past).

Potter v. Murray City (10th Cir. 1985)

• Murray was a polygamist. He was terminated as a city police officer for practicing polygamy. He argued that this was a
violation of his first amendment right to free exercise of religion and his right to privacy.

• State restrictions on polygamy do not violate the Constitution.

o Reynolds v. United States (1878): SCOTUS held Congressional restrictions on polygamy did not violate the free
exercise clause.
o Wisconsin v. Yoder (1972): SCOTUS held that when a state interferes with the practice of a legitimate religious
belief, it must appear either that the state does not deny the free exercise of religious belief by its requirement or that
there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise
Clause.
o Potter's practice was a result of a good faith religious belief, but Reynolds can't be disregarded. Since monogamy is
part of the foundation of this society, the state is found to have a compelling interest in banning polygamy.
o There is no authority to extend the Constitutional right to privacy to include polygamy.
o Polygamy has been prohibited in this society from the very beginning. Showing that a small number of people have
been prosecuted for bigamy does not mean that the law has been abandoned or that it is irrational to enforce it.

3. Relationship

State v. Sharon H. (Del. 1981)

• Sharon H. and Dennis H. were half-sister and half-brother. They got married. Sharon H. was adopted when she was 10 days
old and did not grow up in the same house as Dennis. They met as adults and married. State statute declared that marriage
between brother and sister was prohibited, but half-siblings were not mentioned.
o Step-siblings means there is no shared parent
o Here the brother and sister are half-siblings in that they have one common parent (mother).
• Prohibition on marriage between blood relatives are to include persons related by the half, as well as the whole, blood.
o Tradition (English Canonical Law, Biblical prohibitions), health risks (increases the chances that offspring will have
unfavorable physical characteristics). Half-blood siblings are included. Does not matter that she was adopted—
statute not just aimed at growing up together.
o Problematic: now that sex isn’t confined to marriage, we do not make over-arching laws against reproduction
directed toward carriers of rare genetic diseases. Makes this law somewhat unfair.
o However, siblings are not a protected class. Any legitimate state interest will do.
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 4. Different Sexes

Baker vs Vermont (2000) – prior to Goodridge.

Three same-sex couples sued the State of Vermont in July of 1997 when they applied for marriage licenses and were denied. After
motions, but no hearing, trial court judge Linda Levitt in Burlington granted summary judgment for the State. However, in her opinion
Judge Levitt dismissed six of the seven State interests advanced by the Attorney General. The only interest she considered rational,
“though flawed,” was that the marriage law sought to link procreation and child-rearing. Because Vermont has no relevant
intermediate court, the case moved immediately to the Supreme Court.

On December 20, 1999, the Court issued a unanimous 5-0 decision reversing the decision of the trial court. Justice Dooley wrote a
concurring opinion and Justice Johnson wrote a concurring/dissenting opinion. The Court decided two things: (1) the Vermont
Constitution requires that all (or almost all) of the benefits of marriage to be extended to same-sex couples, and (2) the Legislature,
rather than the Court, must determine how to do this, whether by marriage, domestic partnership, or some other means.

This decision allowed the legislature to create the institution of "civil union" in Vermont as a substitute for allowing same sex couples
access to civil marriage. This entitles the partners to all of the benefits and obligations of marriage. It was essentially same-sex
marriage disguised as a “civil union”.

Goodridge v. Department of Public Health (Mass. 2003) – first time highest court in a State said that denying marriage to same sex
couples is unconstitutional.

• MA gay marriage case. Seven same-sex couples sought marriage licenses from the Dept. of Public Health and were denied.
The couples filed suit claiming that the licensing statute did not specifically prohibit same-sex couples from obtaining
marriage licenses, or if it is constructed to do so, that that statute violated the MA Constitution on equal protection and due
process grounds.
• The Massachusetts Constitution does not permit the state of Massachusetts to bar same-sex couples from civil
marriage.
o Civil marriage bestows enormous private and social advantages on those who choose to marry, and because of this,
civil marriage has been termed a "civil right". The legislature can deny the legal benefits of marriage to individuals
who have the choice to marry and choose not to, but it cannot legal benefits of marriage to individuals based on a
single trait: sexual orientation.
o The MA Constitution forbids the creation of second-class citizens and the legislature therefore may not deny the
protections, benefits, and obligations of civil marriage to same-sex couples wishing to marry. Marriage is a
fundamental right.
• Argument 1: Construing a statute requires looking to the everyday definition of words, and the everyday definition of
"marriage" has always been a union between a man and a woman. The statute is silent as to same-sex couples.
• Argument 2: Strict scrutiny only triggered when a fundamental right or suspect class is involved. The statute did not even
pass the most deferential standard of review (rational basis test) and it was found that the state did not have a fundamental
right to restrict marriage because (1) Procreation is no longer the primary reason for civil marriage, (2) the state doesn't deny
marriage to opposite sex couples who do not have children, and (3) opposite sex couples do not necessarily provide a "more
optimal" setting for child rearing than same-sex couples, and (4)many same-sex couples have dependents relying on them
who are no less deserving of financial of state benefits tied to marriage.
• The state did not have a LEGITIMATE, CONCEIVABLE interest in prohibiting same-sex marriage, therefore the
statute could not pass the rational basis test.
o The means chosen – banning same sex marriage – must have been reasonably related to the ends sought
(protect procreation, opposite sex couples rear children better, preserving scarce State resources).
• Same sex marriage will not demean and undermine the institution of marriage.
• The only conclusion is that the purpose is based on personal prejudice toward a single trait, which is prohibited by Loving v.
Virginia. The remedy here is not to eliminate the institution of civil marriage, but to redefine the phrase.
• Dissent:
o Equal protection argument should have failed because the state does not discriminate against either gender. There is
no due process restriction on a person's right to marry as long as they marry a person of the opposite sex.

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 o Scientific data does not yet support the notion that children are as well off in same-sex households as single-sex.
Until it does, the state has a rational basis for restricting same-sex marriage.

Goodridge v. Dept. of Public Healthseveral π couples filed with the department to get their marriage license. The couples
submitted notice of intention to marriage forms which were either denied by the registry’s clerk of told that they cannot accept the
forms. As such the πs filed suit alleging that the department are denying them access to having civil marriages. Dept said that πs
did not have a right to have civil unions b/c there was a legitimate state interest of procreation of disallowing the opportunity to
have civil marriages. Holding: the court stated that Mass. Constitution does not forbid same-sex couples to have civil marriages
and enjoy the same benefits of married couples. Dept used three rationales for prohibiting same-sex couples from marrying
a. Procreation—court said that procreation is not privileged over all other forms of adult intimacy and it is not the sine qua
non of civil marriages.
b. Optimal setting for child rearing which dept. defines as two-parent family of opposite sex—court said the department has
offered no evidence that forbidding marriage to people of the same sex will increase the number of couples choosing to
enter into opposite sex marriages in order to have and raise children
c. Reserving scarce State and financial resources—the court says that the purpose of same-sex marriage does not come w/
the purpose of destroying the institution

Bowers v. Hardwick

• Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy
with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized
sodomy, Hardwick challenged the statute's constitutionality.
• Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices.
o The Court has acted to protect rights not easily identifiable in the Constitution only when (1) those rights are
"implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or (2) when they are "deeply rooted in
the Nation's history and tradition" (Griswold v. Connecticut, 1965).
o The right to commit sodomy did not meet either of these standards.

• Powell told Smolla that he had doubts about the correctness of this decision.

• Law purported to apply to men and women; this was one of the reasons it was held constitutional—It appeared not to
discriminate between gay and straight/men and women; turned out that Georgia never prosecuted any straight couples for
violating this statute.

Lawrence v. Texas

• Responding to a reported weapons disturbance in a private residence, Houston police entered Lawrence's apartment and saw
him and Garner engaging in a private, consensual sexual act. They were arrested and convicted of deviant sexual intercourse
in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.

• The criminal conviction for adult consensual sexual intimacy in the home violates their vital interests in liberty and
privacy protected by the Due Process Clause of the Fourteenth Amendment. Bowers v. Hardwick is overruled.
o Lawrence and Garner were free as adults to engage in private conduct in the exercise of their liberty under the Due
Process Clause.
o "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without
intervention of the government…The Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual."

• Gives us no doctrinal guidance; does not use strict or intermediate scrutiny, fundamental rights or suspect classification; no
hard legal doctrine.
o You would expect that they would have said that having homosexual consensual sex was a fundamental right, or that
gays and lesbians are a suspect class or a quasi-suspect class (like gender identity triggering intermediate scrutiny)

• Scalia is PISSED! Hurts his own cause because he accuses the majority of being duplicitous and he thinks this case will lead
to full marriage equality rights; OOPS!

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Romer v. Evans

• Colorado voters adopted an Amendment to their State Constitution precluding any judicial, legislative, or executive action
designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct,
practices or relationships."

• The Court held that the Amendment violated the equal protection clause because it singled out homosexual and bisexual
persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection
from discrimination.
o oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific
group, so long as it can be shown to "advance a legitimate government interest." But the Amendment, by depriving
persons of equal protection under the law due to their sexual orientation, failed to advance such a legitimate interest.
o "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that
a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

• It is irrational when the only thing you can point to as the justification for a law is that you don't like what a group of people
is doing and are therefore calling it illegal.

General Rule of Marriage Recognition

1. Place of Celebration Rule – for marriage only.
a. If its valid where celebrated, its valid everywhere.
b. If its void where celebrated, its void everywhere.
2. The general rule is because it is simply required in a practical nature for marriage to be portability.
3. In Re May’s Estate below defines the 2 exceptions (positive law and natural law).

Conflict of Laws
In Re May’s Estate children wanted their father not to be recognized as their deceased mother’s husband b/c they were cousins. The
children wanted to be have the wife declared incompetent because that would make the wife ineligible to be administrator of the
estate.
a. Holding: the court said that the legality of a marriage btw persons sui juris (legally competent) is to be determined by
the law of the place where it is celebrated (locus). The court said that for the fact that the marriage was solemnized it is
good and valid in law and as not offensive to the public sense of morality. The court added that NY does not have any
law that makes a marriage invalid if in the place it was celebrated it was valid. The laws of NY do not extend beyond its
borders in a way to make the marriage invalid.
a. N.B.: The traditional choice of law rule is that a marriage valid where entered into is valid everywhere, but a
state may refuse to recognize a marriage entered into in another state if to do so would violate a strong public
policy of the forum state.
b. 2 Exceptions to the General Rule of Marriage Recognition
a. Against positive law – there is a statute that specifically addresses the validity of an out-of-state marriage.
i. NY had no such law saying such a marriage was invalid in NY.
b. Against natural law – where a marriage is offensive to the public sense of morality to a degree where it is
abhorred.
i. That was not the case here because the solemnization ceremony was conducted in accordance with
Jewish law, in a state (Rhode Island) that had declared such a marriage in accordance with its laws.
1. Here NY could give recognition to this marriage even though NY had a law against it because
NY follows the general rule of marriage recognition.
ii. Usually bigamy and incest marriages would violate the natural law.

*Concept – sometimes courts will recognize an otherwise invalid marriage for a particular incident, such as when determining
estate issues, a lawsuit, etc.

Same-sex marriages turn the idea of Marriage Recognition on its head.

- The way same-sex marriage is being defeated in the states is by the use of POSITIVE LAW, not natural law.
o So many states have statutes banning gay marriage.
 This also precludes recognition of gay marriage.
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  Also gay divorce cannot take place in these states because the state would first have to recognize the
gay marriage as valid.

I. Alternatives to Ceremonial Marriage (CHAPTER 4)

A. Introduction
a. The first alternative to ceremonial marriage is common law marriage. There are a small number of states that have
CL marriage. A number of states that do not have a CL marriage will recognize a CL from other states. It is
basically marriage by agreement.
i. Requirements of CL:
1. an intent and agreement to be marriedpresent agreement (in praesenti) (I)
a. the intent is to be MARRIED NOW
b. a present agreement to be married
2. continuous cohabitation (C)
3. hold yourself out as husband and wife to the community as being married. . (O)
b. To be eligible to obtain a CL marriage you have to be eligible to obtain a ceremonial marriage.
i. Once you have a CL marriage, it has all the responsibilities that the state requires for a ceremonial
marriage.
ii. You cannot get a CL divorce, you have to get a regular divorce like as in a ceremonial marriage
iii. There is a great deal of skepticism from courts about CL marriage. NY will accept CL marriage from
another state like PA; however PA, like some states would look to the skepticism of NY CL marriage.
c. History of CL marriagethere are very few states that allow you to create a CL marriage, but traditionally in the
19th century and earlier, CL marriage was the only form of marriage. Initially marriage was private of which the
church took over. The state participation was a record keeping process in that they needed to know who was married
for inheritance purposes and also for tax. A state sanction marriage was the only proper marriage and a CL
relationship was immoral. So states began to do away w/ CL marriage. § 10 of the Domestic Relations Statute in NY
says that ceremonial marriage is the only type of marriage. See page 5 for NY Domestic Relations § 10
d. Ceremonial marriage is a regularly demonstrative thing that is done in public. After that you don’t have to live
together, have sex or even speak to each other, the requirements of a marriage is not that you have to do these
things; however, the model of the marriage is that you do these things.
e. The general rule of marriage recognition is that a state will recognize the marriage if it was validly celebrated in the
state where it took place.
i. NY will generally recognize CL marriages whether or not the people are residents of NY or not.
f. CL Marriage is also subject to impediments to traditional marriage
i. Bigamy, incest, same-sex
ii. CL marriage sometimes has a difference where the age is concerned
1. Might have to be older for CL marriage that traditional marriage.
B. Common Law Marriage, Presumptions of Marriage, and Putative Spouses
a. Common Law Marriage
i. In re Marriage of Winegard (1977). Parties met and she started working at his business. At that time, she
was single and he was married with two kids. He got divorced and they commenced a very erratic
relationship. She married a couple of times and they were intermittently dating. After her marriages
dissolved, they entered into an ante nuptial agreement. The agreement was made as the parties “were
contemplating marriage.” They went to Hawaii to marry, but never married because he said he had just
told his daughter and she needed more time to adjust. They went to Vegas to marry, but put it off again.
On the flight home, he put a ring on her finger and said they were “as married as anyone else on the plane.”
He denies any symbolic significance to giving her the ring. She and her daughter lived with him upon their
return. He cheated and she left.
1. Burden is on proponent of the marriage to prove it by a preponderance of the evidence.
2. Proponent must prove an intent and agreement to be married by both parties together with
continuous cohabitation and public declaration (“holding out”) that they were husband and wife.
3. Circumstantial evidence may be relied upon to demonstrate a common law marriage.
a. If H is holding himself out as married and she simply acquiesces in this – this will
suffice.
i. This is a situation in which you should speak up and say “We’re not married.”
4. Best evidence is going to be:
a. Impressions that people make
b. Documentary evidence (taxes, etc.)
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 5. Court says the evidence here indicates a valid common law marriage.
ii. Choice of Laws—a state may recognize a common law marriage entered into in another jurisdiction even
when the forum state itself does not allow common law marriages. Traditional choice of laws rule is that a
marriage valid where enter into is valid everywhere, but a state may refuse to recognize a marriage entered
into in another state if to do so would violate a strong public policy of the forum state. If the parties were
actually domiciled in a state that allows common law marriage, other states will generally recognize the
parties’ common law marriage.
iii. A formal divorce action is necessary to dissolve a common law marriage.
iv. Problem: Choice of Law. Vacation for a month in Penn. Acted as if were H & W. Then come back to Tx
– doesn’t have to recognize the CL marriage if held out in Penn. The state w/ most substantial interest in
the relationship (Tx) can look to its own law to define marriage. Possible that TX courts could recognize
this as a C/L marriage. Problem is that you have to renew intent to be married if you go from one state that
recognizes it to another that does not. Really could go either way. Montgomery thinks that if it went to
litigation, the court would say they were there only on vacation – not domiciled there – PA didn’t really
have an interest in the relationship like TX did
b. Presumptions of Marriage and Putative Spouses
i. Putative Spouseis one whose marriage is legally invalid but who has engaged in
1. marriage ceremony or a solemnization, on the
2. good faith belief in the validity of the marriage
ii. Spearman v. Spearmandeceased had a life insurance policy that named his widow as the beneficiary of
the policy. However, he had two widows: his first and second wife. With his first wife he had two kids and
with the second he had no children. Holding: the court said that the 1st wife was the legal widow of the
deceased b/c he did not file any divorce proceeding in any state that either party to the 1st marriage was
domiciled (this burden of showing that the marriage was not dissolved was initially on the first wide), to
dissolve the marriage. The court also stated that the 2nd wife could not be seeing as a putative spouse b/c
even though the wife met the first prong about the marriage ceremony, she did not meet the 2nd prong which
is a good faith belief b/c she knew that the deceased had children w/ his last name that he took yearly
vacations to go so them and his 1st wife
1. Analysis of Case
a. The first wife has to demonstrate that she was married by having a marriage license. The
second marriage is now no good if the first wife presents a marriage license
b. However, the court requires that the first wife prove that the first marriage did not end, so
there was no divorce or annulment in any relevant jurisdiction.
i. N.B.:You cannot get a divorce or annulment in a jurisdiction of which you are
not a domiciliary. So the wife has to search a jurisdiction that she lived in w/ her
husband
1. If she does this and is successful, there is prima facie evidence that the
first marriage is valid
c. Then the second wife has to show that the first marriage was dissolved; if she is not
successful then the first marriage is valid and the 2nd marriage was bigamous
i. The second wife had a fall back position; b/c for some purposes she should be
treated as a wife. This is called a putative spouse. If the 2nd wife is entitled to the
putative spouse title she is entitled to some of the insurance money. A putative
spouse is a person who has gotten married on the good faith belief in the validity
of the marriage. You have to believe that the marriage is appropriate and that
you have to be treated like a spouse for some purposes. Not all states have the
idea of putative spouse
1. However the court said that the 2nd spouse did not qualify as a putative
spouse b/c she did not meet the good faith requirement b/c she knew of
the husbands continuing involvement with the first wife.
C. Legal Alternatives to Marriage
a. Judicially Created Solutions
i. Marvin v. Marvinπ and Δ were never married; however, they lived together and had an agreement that
while they are together they would combine their efforts and earnings and would share equally any and all
property accumulated. Π then quit her job to be the homemaker of the household while Δ worked and
acquired earnings. Holding: the court reasoned that although CAL has abandoned CL marriage, if there
was a expressed contract btw the parties that was not meretricious (sort of like prostitution), π was entitled
25
 to recover in quantum meruit (quasi contract) for the reasonable value of household services rendered less
the reasonable value of the support she received. The court abandoned the CL rule and used the new rule to
decide the case.
1. Old CL ruleyou cannot enforce meretricious part of the k (Hewitt)
2. New ruleyou cannot enforce the meretricious part of k, but rest of k is enforceable. So to extent
that you can separate out meretricious part of k, the commercial part of the k is enforceable.
a. The court said what is new about this decision is that it allows a valid portion of the
contract to be enforceable even though it looks like wifely services instead of paid
employment. The court said that you can get a breach of an expressed contract unless the
part of the contract which you seek to enforce was not meretricious
3. Cohabitating people could make contracts. What Marvin introduced is that cohabitating people
could also K for things that were domestic in nature which prior to that time was not allowed.
4. The idea that Marvin introduce is that in addition to explicit contracts you can have implied
contracts that have equitable remedies. Before you have a remedy you have to have a right and the
right in Marvin was a contract right
a. Another idea in Marvin is that the contract could be implied in law, which would make it
unjust enrichment not to enforce the contract
b. Whether or not you are going to allow implied k is a different issue among various courts
5. The courts now allow cohabiting people to make claims against people in that there was a k.
courts allow the contract to the extent that it is severable from the meretricious aspect of the
relationship
6. NY court will recognize an express contract but not an implied contracts. And the court will
enforce the express contract as long as there as the contract is not based on the meretricious part of
the relationship
ii. In the matter of the estate of Roccamonteπ was married and had an affair w/ Arthur who was also
married. Π left her husband and moved to CAL b/c π wanted Arthur to get a divorce from his wife which
he did not want to do b/c of financial reasons. Arthur persuaded π to move back to NY which π did and
then got a divorce from her husband. Arthur promised π that he would provide for her financially for the
rest of her life. Arthur dies and now π wants the provision. Holding: the court stated that the general
promise of support for life made by one part to the other w/ some form of consideration give by the other
will suffice to form a k. The court is saying that π is contracting to be warm, supportive and loving which is
the essence of marriage. This is a great step away from Marvin. Therefore making a marriage like
commitment on a contractual basis is fine. The court does not care if the consideration is meretricious.
iii. Connell v. Franciscoπ and Δ met in Toronto and started a relationship. Π lived in NY and Δ in Las
Vegas. Π moved to LV to be w/ Δ where she did various dancing jobs. Δ acquired a bed and breakfast on
Whidbey Island and π went there to run the business w/o pay for several years. Δ then went to join her.
Holding: the court said the decision is affirmed in part in that π is entitled to community property which
was acquired during the marriage but reversed in part as π is not entitled to property Δ had before the
relationship. the court stated the relationship btw the parties was meretricious in that it was a stable
martial-like relationship where both parties cohabit w/ knowledge that a lawful marriage btw them does not
exist. Court further stated that they limit distribution of property in a meretricious relationship to property
that would have been characterized as community property had parties been married. Court stated that it is
a general rule requiring a just and equitable distribution of property following a meretricious relationship
1. The presumption is that property acquired is community property that can be divided, but that
presumption can be rebutted
2. Meretricious in WA is no longer a dishonored relationship but a quasi-marital relationship. There
can be equitable remedies that can be provided. This is that the law recognizes this kind of
relationship and you can get the benefit of the meretricious. Therefore this is the legal recognition
of quasi-marriage
3. Contract and Status
a. Contract: you would volitionally entering the marriage at the terms you choose
b. Status: The idea of status you can agree or not agree; if you are agree you agree to take
on a certain status of which the attributes are fixed

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C. Legal Alternatives to Ceremonial Marriage

• The great majority of courts today allow cohabitants to make some kind of claim against each other when the relationship
ends, at least in principle
o Express contract and equitable remedies
o Handful of states require agreements to be in writing
o Handful of states will enforce implied agreements, but only concerning community property
 Majority will reimburse services and their worth
 Minority will only reimburse for funds, money or property

• Pre-Marvin, the rule was that if sex was any part of the contract/agreement/claim, you could not receive property rights.

Marvin v. Marvin (Cal. 1976) p. 249

• Famous dancer and actor cohabitate. Dancer avers that in an oral agreement she agreed to give up her (lucrative) career to
support him in his, and in turn he would share in the property and profit and hold themselves out as married. Dancer not
entitled to constructive trust or quantum meruit because no damage resulted from the relationship (she may, in fact, have
benefited).

• Express agreements between unmarried cohabitants are enforceable, unless they rest on an unlawful meretricious
consideration.

o When a man and a woman live together and engage in a sexual relationship, that does not in itself invalidate
agreements between them relating to their earnings, property, or expenses.

o Neither is such an agreement invalid merely b/c the parties may have contemplated the creation or
continuation of a non-marital relationship when they entered into it.

o Meretricious in Hewitt= attracting attention in a vulgar manner

• Remedies:

o Express Contract: Can receive property and alimony if there is a written agreement.

o Implied Contract: Look to conduct of the parties and reasonable expectations in the absence of express agreement
(agreement here is apparently arguable)

o Constructive trust: A trust that arises by operation of law whereby the court imposes a trust upon property lawfully
held by one party for the benefit of another, as a result of some wrongdoing by the party in possession so as to avoid
unjust enrichment.

o Resulting Trust: An equitable trust that is established from the inferred intent of the parties to create a trust die to
the attendant circumstances.

o Quantum meruit: Equitable doctrine allowing recovery for labor and materials provided by one party, even though
no contract was entered into, in order to avoid unjust enrichment by the benefitted party. [reasonable value of
household services less the reasonable value of support received (if can be shown services rendered in expectation of
support)]

• Before Martin, courts would only pay people if they were in committed, marital relationships that were (1) companionate; (2)
financially interlinked; and (3) for more than just sex.

• Courts do not value "services" as capital in a relationship because:

27
 o No way to determine pricing
 There are different benchmarks for deciding the hourly rate or forsaken salary amounts.
 What's the replacement value for Michelle Martin? Sex, taking care of children, doing housework, etc.
o No risk of fraud
o There probably isn't an intent to reimburse for these services
o Can trace money, can't trace services

• If someone works for their spouse (helps with the family business, etc.), to prevail on a claim of equitable relief he or she
must prove that the work was not gratuitous.

• The moral of the story is that you're only going to get community property, not the alimony or support that would
come with full marital rights.

o Counter-Argument: ALI: would divide community and separate property (if the couple had been together long
enough to consider separate as community) and award alimony to a cohabitant.

In the Matter of the Estate of Roccamonte (NJ 2002)

• Mary and Arthur had an affair for 40 years (he was married, she was married then divorced). At one point, Mary tried to
move to CA because Arthur wouldn't leave his wife. He lured her back in exchange for a promise of lifetime financial
support. They lived together as husband and wife for the rest of his life, despite him remaining married to his wife. He died
intestate.

• An enforceable promise of financial support may be oral, express or implied, made between married or unmarried
persons, and may be enforceable against the promisor's estate.
o Parties had a marital-like relationship brought about after he she returned based upon his promise, which was
implied if not express and his death does not discharge his obligation to her.

• Court rejects the argument that housework has to be performed (she had a maid) in order for the relationship to avoid being
entirely meretricious. Considering modern relationships, this is outdated.

Salzman v. Bachrach (Colo. 2000)

• Cohabitants Erwin and Roberta agreed to sell their homes and build a dream house together. He designed the home; she
contributed about twice as much as he to the building costs. She also paid the mortgage and most of the living expenses. He
quit-claimed his interest in the house to her. Eventually, they broke up, she changed the locks and posed no trespassing signs
on the property with the addendum "This means you Erwin."

• Erwin established a viable claim for a constructive trust. The elements of a claim are: (1) At plaintiff's expense (2) the
defendant received a benefit (3) under circumstances that would make it unjust for the defendant to retain the benefit
without paying.
o It would be unjust to let Roberta keep Erwin's entire interest in the home.

Connell v. Francisco (p. 260) (Wash. 1995) (What happens in Vegas…)

• F and C lived together for several years without marrying (C was a stripper he F in Vegas, he bought her a B&B in Alaska to
clean up her act). When they broke up, he had title to all property accumulated during the relationship.

• A trial court may not distribute property acquired by each party prior to the relationship at the termination of a
meretricious relationship.
o A meretricious relationship is not the same as a marriage.
o Laws involving the distribution of marital property do not directly apply to the division of property following a
meretricious relationship.
o The property acquired during the relationship should be before the trial court so that one party is not unjustly
enriched at the end of such a relationship.

28
 o The distribution of property following a meretricious relationship is thus limited to property that would have been
characterized as community property had the parties been married.

• C entitled to a just and equitable division of acquired assets

o Look to:
 Duration, continuity, purpose, pooling of resources: “sufficiently long term & stable”
o Parties that are found to have been in a meretricious relationship (good this time) are entitled to just and equitable
distribution
 The laws of marriage do no directly apply, but may be looked toward for guidance
o Focus on what would have been community property had there been a marriage
 Not 50-50 split, and not property acquired before marriage
 Does not want burden placed on non-acquiring partner (differs from previous common law marriage, no?
o Protect from unjust enrichment

• Note the change in the definition of meretricious; it goes from a bad, immoral sexy-time-only relationship to a stable,
marital-like relationship with knowledge that a marital relationship does not exist.
o Test to determine if a relationship is meretricious (the good kind)
 Continuous co-habitation
 Duration of the relationship
 Purpose of the relationship
 Pooling of resources
 Intent
D. Civil Union & Domestic Partnership Statutes

ALI Principles of the Law of Family Dissolution §§ 6.01, 6.03–6

• Two persons of the same or opposite sex are regarded as domestic partners if they share a primary residence and life together
for a significant period of time.
• If the parties have a child together, they should be regarded as domestic partners once they have maintained a common
household for a particular period of time (e.g. 2 yrs; to be est. by the state)
• If there are no children, they are rebuttably presumed to be domestic partners after they have lived together for a (longer)
period of time (e.g. 3 years)
• Parties who are domestic partners are subject to the property division and spousal support provisions applicable when
married couples divorce, unless they have agreed to the contrary.

Lynn Wardle, Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal (p.265)

• The biggest flaw of ALI principles chapter 6 is that it fails to create rights and remedies that are customized for domestic
partnership; it extends exactly the same economic property interests and compensatory rights to domestic partners as are
provided to couples who are in the much more significant, committed, economically interdependent relationship of marriage.
• Marital property interests are based on the time-verified fact that most parties who marry make a long-term commitment to
share their lives and their total family and personal interests, and they make significant adjustments in their economic life
based on those interdependency commitments.
• It is far from clear that most non-marital couples have similar expectations and make similar sacrifices in reliance on their
expectations. Social science evidence points to no.

State Just Like Marriage Less than Marriage “Reciprocal Benefits”:

HI
CA (03), OR, WA, NV, ME, DC, WI

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 NJ
Eligibility  Must be 18+  Must be 18+  Must be 18+
 Can’t be married/in  Must share common  Can’t be in another
another civil union residence relationship of same type
 Consanguinity bars  Can’t be married/in  Must be legally
apply domestic partnership ineligible to marry each
 Must be same sex  Consanguinity bars other
 Ceremony apply
 Must be the same sex
(CA: or one at least 63 &
Soc. Sec. eligible; ME:
opp. sex allowed)
 No ceremony required

Entry Same as marriage File declaration with state File a document with state

Exit Same as divorce
Rights between Parties Same as marriage (for
purposes of state law)
Rights vis-à-vis Third Same as marriage (for
Parties purposes of state law)
Same as divorce (ME:
terminates if marry
another; ME: 60 days after
declaration of termination)
Mostly the same as
marriage (more limited
ME)
Same as marriage (WA
&ME: more like HI—no
tax/pension benefits)
 Either party files notice
of termination with state
 Either party gets a
marriage license
None
 Hospital visitation
 Health care decision
making
 Inheritance rights
 Wrongful death actions

• Same Sex Marriage allowed: MA (2003); CA (2009- Prop 8 challenge in fed court); Iowa (2009); Vermont (Religious
Liberty Exemption) (2009); Connecticut (Religious Liberty Exemption) (2009); NH (Religious Liberty Exemption) (2009).

• Despite marriage parity statutes, it's important to remember that the word "MARRIAGE" and the status of BEING
MARRIED is what really matters to both groups; gays and straights both want the status associated with the word.

E. Non-Marital Cohabitation in Other Western Countries

V. DIVORCE GROUNDS AND PROCEDURE

A. Fault Based Divorce

• Party bringing suit must have grounds

o Adultery, impotence, extreme cruelty, abandonment, conviction of felony (prison > 1 yr), disappearance, treatment
injurious to health or reason, habitual drunkenness or drug use
o Divorce is a remedy – reward – for an innocent spouse who has been wronged by the other spouse.

• Cruelty
o Older cases require violence or at least intentionally and seriously injurious conduct that reasonably led to fear for
life or death.
o Over time, threats to mental as well as physical well-being became generously recognized.
o Marital Unkindness

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  Ridicule, harassment, false accusations of unfaithfulness, child abuse, relative abuse, and the like.
o Cruel and inhumane treatment requires a course of conduct which is harmful to the physical or mental health of the
plaintiff, making cohabitation unsafe or improper, and when the marriage is of long duration a high degree of proof
of serious or substantial misconduct.

• Desertion (aka abandonment)

o Requires departure from one spouse without the consent of the other and without justification
o If there is consent, there is no marital wrong.
o Departure is justified only when the abandoned spouse has engaged in conduct that would itself provide grounds for
divorce.
o May also include conduct that makes cohabitation impossible.

• Adultery
o voluntary sexual intercourse by a married person with a person who is not his or her spouse. Definition excludes
rape.
o Rarely committed in the presence of others and must be proved by circumstantial evidence.
o The circumstances that may give rise to an inference that adultery did occur include inclination and opportunity.

• Impotence
o Logical or not, some statutes provided this as a ground for divorce.

• Insanity
o Generally recognized as a defense in divorce proceedings and it must be specifically pleaded and proved.

• Connivance
o Misconduct of one spouse has destroyer the marital relationship.
o Most grounds for divorce quality.

• Condonation: forgiveness conditioned on the absence of future wrongdoing

o If forgiven, any bad act is not grounds for divorce
o Does not have to be explicit—resumption of cohabitation, etc.
o However, resumption of previous bad behavior reawakens divorce grounds

• Collusion
o Both spouses pretending that fault grounds exist in order to secure a divorce.
o This is almost NEVER raised when a divorce is denied.

• Defenses to Fault
o Recrimination
 Cannot get a fault divorce if both spouses are guilty of something that would allow a divorce
 a defense to no-fault
 Not a defense to adultery in statutes which restrict alimony when a person cheats (no alimony to either
when both cheat)
o Insanity
 Can't divorce a crazy because you promised "in sickness and in health"
 Duty of Care
o Condonation
 Continued cohabitation, forgiveness, "conjugal kindness", reconciliation removes fault claim
 This is problematic because money and children could force you to remain in the house
• What do the grounds and defenses say about what marriage was viewed to be?
o Monogamous
o Duties to the other person derived from vows; reliance on vows
o Duty to have sex; can't withhold for purely spiteful reasons
o Duty to support financially and emotionally

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 • Companionate marriage has turned around fault conceptions because marriage is now seen to be viewed as happiness and
fulfillment driven

Kucera v. Kucera (N.D. 1962) p. 295

• Wife pregnant with child of another when married, with husband’s knowledge. They had a second child, stopped having sex.
Husband would call wife and older child names (bastard) and wife was having a gentleman friend pay her visits at night (6+
mo.). Wife filed for divorce citing extreme mental cruelty.

• When both plaintiff and defendant plead and prove facts constituting statutory grounds for divorce against each
other, a divorce must be denied to both parties.
o Statute states that divorce must be denied when a Δ shows cause for divorce against the Π in her of Π's cause of
action.
o In this case, Π's mental cruelty claim was offset by Δ's claim of mental cruelty because she let her gentleman friend
visit her.
o Π also deserted Δ by not having sex with him.

• Defense = recrimination
o Can't get a fault divorce when both parties did something wrong
• Kucera v. Kuceraπ and Δ got married but π was pregnant w/ someone else’s child when she got married to Δ. Δ knew
about this and they agreed that if the marriage didn’t work out that child would have Δ’s last name and get a divorce in a
year. They had a 2nd child and didn’t have sex thereafter. However, the father of the first child kept visiting π for a period of 6
months at her home when Δ was not home. Holding: court stated that b/c both π and Δ prove a cause of action for divorce
that was recrimination (retaliatory claims) and therefore a divorce must be denied to both parties. Court could not decide who
should get the divorce and says that this issue for the legislature.
o Π proved her cause of action for divorce b/c Δ caused her extreme cruelty: under statute can be physical and
mental. Π cruelty was mental as Δ called her obscene names and also called her child obscene names which the
court said met the standard of extreme cruelty.
o Δ prove his cause of action for divorce by proving that the wife was extremely cruel b/c π allowed her first child’s
father to come to the house when Δ was not there. Also the court said that π deserted Δ b/c they did not have sexual
relations after the 2nd child was born
 Recrimination is where both parties prove grounds for divorce it will be granted to neither. This
justification for is legislative law. Why is this so? Probably the legislature does not want people to benefit
from their wrongdoing, so the fact that both parties are wrongdoers neither should get the divorce.
• What happens if Δ just did not present a case and accept the divorce? He would have to pay more
money and alimony and there may be property consequences. Historically, fault is distinctly
relevant to property distribution, not so much today
 Some states developed a doctrine of comparative rectitude: which is if both parties are bad, they figure out
which party is more or less bad and grant divorce to the less bad party. This is a way to get around
recrimination.

Simpson v. Simpson (Tenn. 1986)

• Husband and wife married for a few months when he started freaking out, calling her names, causing her to fear for her
safety. She left, and after a brief reconciliation she filed for divorce alleging irreconcilable differences, cruel and inhuman
treatment, abandonment and non-support. Turns out, he has schizophrenia and uses it as a defense to the divorce.

• A defendant in a divorce action asserting insanity as a defense to cruelty must prove that at the time of such conduct,
due to mental illness, he lacked sufficient capacity to appreciate the wrongfulness of his conduct or the volition to
control his acts.

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 o Husband had the burden of proving that he was not in remission at the time of the commission of all or most of the
acts of cruelty relied upon by his wife. He failed to prove that, so she was granted the divorce.

• Davis v Davis (NY 2009)

o Plaintiff Novel Davis argued that her husband Shepherd Davis' refusal to eat meals with her, celebrate holidays
together or attend family functions should be recognized as a form of abandonment, one of the four grounds for
divorce in contested New York proceedings.
o A unanimous Appellate Division, Second Department, panel expressed sympathy for proponents of more flexible
grounds for divorce, but set forth a host of reasons for affirming the dismissal of Ms. Davis' social-abandonment
cause of action, including that the claim is merely one for no-fault divorce dressed up as an abandonment cause of
action.
o "The plaintiff's allegations of social abandonment may appropriately be viewed as merely another way of claiming
'irreconcilable differences' between spouses, that do not constitute a cognizable ground for a divorce."
o "While we are sensitive to the desire of many for a reformation of matrimonial litigation in New York including,
but not limited to, the enactment of no-fault divorce grounds, this case cannot provide the vehicle for that goal."
o Ms. Davis initiated the present divorce proceedings in November 2007. She asserted two causes of action, cruel and
inhuman treatment and constructive abandonment.
o As noted by Justice Dillon, constructive abandonment has long been recognized as a viable cause of action in
marriages in which a spouse has "unjustifiably and continually refused to engage in sexual relations" despite
repeated demands.
o But Ms. Davis did not claim that her husband refused to have sex. Rather, she alleged that he refused to engage in
social interaction. After more than 40 years of marriage, Mr. Davis refused to eat with her, go to movies, or
celebrate Christmas, Valentine's Day or her birthday, Ms. Davis claimed.
o Mr. Davis contested both the specific allegations underlying Ms. Davis' claim, as well as their relevance to a cause
of action for constructive abandonment.
o The Nassau County Supreme Court agreed with Mr. Davis, and in August 2008 threw out the social abandonment
claim, for failure to state a cause of action.
o The two sides argued the appeal on June 16, and on Thursday the Appellate Division, Second Department, affirmed
the dismissal of the social-abandonment claim.
o After briefly outlining the history of divorce law in New York -- including the Court of Appeals' first extension of
the meaning of "abandonment" in the 1926 decision Mirizio v. Mirizio, 242 NY 74, which found a wife's refusal to
consummate a marriage actionable -- Justice Dillon laid out five reasons for refusing to recognize social
abandonment.
 "First," Justice Dillon wrote, "our State Legislature has chosen to include in Domestic Relations Law
§170(2) mere reference to 'abandonment' which, in addition to its plain dictionary meaning regarding
physical departure, has been expanded by the Court of Appeals only so far as its current constructive
form."
• The judge also cited the "longevity of the current definitional understanding of constructive
abandonment" and the inappropriateness of "a judicial usurpation of legislative authority."
 Justice Dillon's fourth reason for rejecting "social abandonment" was his most philosophical: that social
intercourse is not as closely correlated with the marriage contract as is sexual intercourse: "As discussed by
the Court of Appeals in Diemer [v. Diemer, 8 NY2d 206], '[s]exual relations between man and woman are
given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage
is itself distinguished from all other social relations by the role sexual intercourse between the parties plays
in it.'"
 The justice then cited the practical concerns associated with litigating social-abandonment claims.
 "The conduct of couples on a case-by-case basis would present variations as to the degree of social
interaction involving family events, meals, holidays, religious activities, spousal expectations, cultural
differences, and communications," Justice Dillon wrote. "These variations might necessitate discovery of
parties and non-parties, despite New York's long-standing rule prohibiting pretrial discovery of divorce
grounds and marital fault."

B. No Fault Divorce

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 A. Introduction more and more there was collusion in divorces and they were manipulating the law. Commonly in NY it was
fake testimony that got an annulment. Divorce by mutual consent was not available in a lawful way. You would have to meet
one of the state requirements to get a divorce in an adversarial way. Until the late 1960’s, adultery was the only grounds for
divorce. Therefore, in NY many of the divorce actions were uncontested. The statements that were made were fake
a. Reno had the shortest domiciliary period to get a divorce which was 6 weeks. So people would go to Reno from
other states wait 6 weeks and get a divorce
b. You could go to Mexico and get a divorce b/c divorce was based on registration. So people would go to some town
in TX that was close to Mexico and then go register and then get a divorce
i. All of this made the divorce law a joke and the result was the reform of divorce laws
c. California had a two prong approach
i. If parties are unable to work out the relationship through counseling then the court would grant a divorce
1. The first half of this approach is therapeutic (but it never happened in CAL)
2. 2nd half was irreconcilable differences so CAL became a state where you can get a divorce for
irreconcilable differences.
a. CAL got rid of grounds for divorce and uses basically no-fault
d. Most states still have fault grounds and no-fault grounds. Some states give no-fault divorce and the institute fault
grounds for property division
e. NH will give a divorce of no-fault and won’t allow parties to show any fault. They do allow fault for the child
custody part of the process. NH does not allow fault for economic issues such as property division
f. Missouri gives no-fault divorce on the grounds that the marriage is irretrievable broken by mutual consent of the
parties. If you don’t agree, then you can show martial fault or alternatively you can live separate and apart by mutual
consent for a year or 24 months w/o such an agreement
g. NY has finally instituted no fault divorce as of 10/2010. – see Supplemental Readings Part II, Page 19
i. It adds no-fault to the existing 6 Fault methods (see Page 18)
ii. Uses irretrievably broken standard
1. For a period of at least 6 months
a. Don’t have to be separated for those 6 months.
2. As long as one party states it is broken under oath
a. Unilateral no-fault grounds for divorce
iii. The divorce decree cannot be awarded until some other issues around economic division and child
support are also settled.
B. No-Fault Approaches
a. Substantive standard – is the marriage viable?
i. Irreconcilable differences
ii. Irretrievably broken
b. Period of Separation
C. Grounds for Divorce
a. Uniform Marriage and Divorce Act
i. § 302 (2): court finds that the marriage is irretrievably broken, if the finding supported by evidence that the
1. Parties have lived separate and a part for a period of more than 180 days
2. There is serious marital discords adversely affecting the attitude of one or both of the parties
toward the marriage
ii. §305: If the parties disagree that the marriage is irretrievable broken the court can adjourn and suggest
counseling and if that does not work the court has to make a finding whether the marriage is irretrievably
broken

Uniform Marriage and Divorce Act

• §302: Dissolution of Marriage; Legal Separation

o (a) The [_______] court shall enter a decree of dissolution of marriage if:
 (1) the court finds that one of the parties, at the time the action was commenced, was domiciled in this
State, or was stationed in this State while a member of the armed services, and that the domicil or military
presence has been maintained for 90 days next preceding the making of the findings;
 (2) the court finds that the marriage is irretrievably broken, if the finding is supported by evidence that
• (i) the parties have lived separate and apart for a period of more than 180 days next preceding the
commencement of the proceeding, or

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 • (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties
toward the marriage;
 (3) the court finds that the conciliation provisions of Section 305 either do not apply or have been met;
 (4) to the extent it has jurisdiction to do so, the court has considered, approved, or provided for child
custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition
of property; or has provided for a separate, later hearing to complete these matters.
o (b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall
grant the decree in that form unless the other party objects.

• §305: Irretrievable Breakdown

o (a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is
irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall
make a finding whether the marriage is irretrievably broken.
o (b) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall
consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of
reconciliation, and shall:
 (1) make a finding whether the marriage is irretrievably broken; or
 (2) continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon
thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they
seek counseling. The court, at the request of either party shall, or on its own motion may, order a
conciliation conference. At the adjourned hearing the court shall make a finding whether the marriage is
irretrievably broken.
o (c) A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation.

Desrochers v. Desrochers (NH 1975)

• Parties were married for three years. Wife sought a divorce because the husband did not work and he had stated that their
child should be put up for adoption because she was a girl (he became very attached to the child after she was born). They
worked out custody, visitation and child support, but he stopped paying, moved to Nevada and wanted to remain married.

• A divorce may be granted on the ground that the marriage is irretrievable broken down even when one party contests
the divorce.
o Irreconcilable differences leading to the irremediable breakdown of a marriage are to be determined by examining
the subjective state of mind of the parties.
o The desire of one spouse to stay married does not necessarily bar divorce.
o If one spouse refuses to remain married and it appears that there will be no change of heart, then there is an
irremediable breakdown of the marriage.

• Since the parties have been separated for almost three years and she has persistently sought a divorce, there is evidence for
the trial court to find that the marriage has irremediably broken.

• How can the law look out for the party that does not want the divorce?
o Require counseling
o Mandatory time between separation and divorce proceedings increased
o Raise cost of exit
o Re-work custody considerations so the husband has a better chance at getting custody
o Conciliation track: like court ordered mediation for divorces (not a bad idea, but it wouldn't work for everyone)

Earls v. Earls (Tenn. 2000)

• Wife was in an accident and became a quadriplegic. After one year, her husband filed for divorce citing irreconcilable
differences. The wife resisted the divorce because she wanted to remain covered under his health insurance and the trial court
did not grant the divorce. Upon appeal, it became clear that both were depressed and angry and fighting all the time.
• Divorce should be granted whenever there is evidence of continued misconduct by one or both spouses that makes
continued cohabitation unacceptable.
o Wife's concern about medical care should be addressed through property division and spousal support.
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Koon v. Koon (Mo. 1998)

• Wife claimed irreconcilable differences because her husband tried to control her and their finances. Husband testified that he
didn't believe the marriage was irreconcilably broken. Court did not grant them a divorce.

• A finding that the marriage is irretrievable broken, when contested, must be supported by evidence of various kinds
of misconduct by the defendant, such that the complaining spouse could not be expected to continue to live with the
other spouse.

Boddie v. Connecticut 401 U.S. 371 (1971)

• CT statute required $120 court fees for filing for divorce. Boddie and other welfare recipients challenged the requirement on
the basis that it denied them due process by restricting their access to the courts in commencing an action for divorce.
• Due process prohibits a state from denying access to its courts to individuals seeking a divorce solely based on their
inability to pay a filing fee, absent a satisfactory prevailing justification.
o A divorce proceeding is one that is regulated entirely by state law and may not be effectuated without resort to its
courts.
o Where the court seeks to deny access to the sole means for obtaining a divorce, it must present a signif explanation
for its action.
• CT advanced that the fee prevented frivolous suits for divorce and provided for efficient allocation of judicial resources.
These goals were not sufficient to justify denying the plaintiffs access to the courts for divorce proceedings.

VI. P ROPERTY DIVISION AT DIVORCE

A. Overview

• "Doctrine of Oneness"
o No longer exists after divorce, but if we start with this proposition we might divide all assets, separate or marital, in
half.
o In fault divorce, there is a principle for dividing assets unequally, but not in a no-fault jurisdiction.
• Property division is final!!
o Doesn't matter if one party wins the lottery the next day- you can't revisit the order.
o Goal = clean break!
 Alimony tends to keep the couple entangled because it can be revisited if there are material changes in
circumstances
• Alimony is taxable income, but there are no taxes attached to property division
• Considerations at property division:
o Need
o Relative earning power
o Contribution
o Fairness
o Title (out of favor today)
• It's hard to make predictive judgments about how much each partner should receive. Once you move away from things like
title and fault, you're in the weeds. There is a lot of room for judicial discretion.

Historical Justifications of and Criteria for Economic Awards

• Property used to be awarded to the person with title during the marriage, and support (alimony, child support) carried over
the entire burden of providing for dependent women and children.
• When a woman was at fault, she did not receive alimony and usually lost custody, so she got nothing.

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 • In the 19th century, a property settlement apparently was awarded to the wife under the ame theory that ongoing support or
alimony would be awarded today, rather than as a division of the accumulated assets of the marriage.
• Equitable distribution arose in common law property states post-1950.
• Statutes in all community property states except LA provided for equitable distribution starting in the early 1900s.
o Today, more community property states require title-based distribution.

Economic Orders in the No-Fault Era

• Judicial decrees should end, as far as possible, all personal and economic ties between the spouses.
• The abandonment of fault grounds, coupled with the emerging emphasis on gender equality, implied that both spouses should
become equal and independent social and economic actors after divorce and that neither spouse should be especially
burdened by the divorce decree.
• Legislatures and courts came to regard assets acquired during marriage as the result of the contributions of both spouses.

Criticism of No-Fault Economics

• Dr. Lenore Weitzman: blames change from fault to no-fault divorce grounds for the poor position of women and children.
o Two adverse effects: deprived women of bargaining power—they could no longer extract favorable economic
settlements by refusing to go along with a divorce
o Change gave judges more discretion over economic awards, which they exercised to the disadvantage of women.

• Professor Marsha Garrison: changes in the law governing spousal support and property division had much more effect that
did changes in grounds.
o Critical of Weitzman because she assumes that (a) most of the people who want out of marriage are husbands and
(b) most wives want, or are at least willing, to stay married.
o "The bottom line is that Weitzman's data do not show any substantial changes in the economic situation of women
and children under no-fault divorce; it was bad before no fault, and it continues to be bad."

• Marygold Melli, Constructing a Social Problem: The Post-Divorce Plight of Women and Children
o By emphasizing he bargaining power f innocent spouses under fault divorce, Weitzman ignores the fate of mothers
who decide to end a marriage and who therefore would suffer the economic hardship of a guilty spouse.
o Weitzman's preoccupation with contemporary no-fault divorce structure and gender-neutral rules leads her to
inaccurately credit fault divorce with economic protections for women and children that in fact never provided.
o By assuming that the disastrous economic consequences of divorce were caused by a change in the law, Weitzman
makes the problem appear to be simple: a few more changes in the law and all will be well. While this may be true
in some respects, the effects of divorce on women are not going to improve just with the revivial of fault divorce.

• Marsha Garrison, The Economic Consequences of Divorce

o Poverty rate for single mother families is five times that of married couples with kids.
o No divorce law can provide a standard of living for families that experience divorce that is commensurate with that
enjoyed by the marital household.
o Many women who are poor after divorce were poor before divorce.
 Divorce is twice as likely below the poverty line.

• Susan Prager, Sharing Principles and the Future of Marital Property

o A separate property system encourages each person to function as an earner by refusing to compensate a spouse who
remains in the home for some significant period.
o The absence of sharing principles can thus be used to discourage the establishment of dependency relationships.
o One spouse may ultimately be treated unfairly if the couple does not alter its behavior to conform to the
individualistic orientation of the separate property model.
 BUT if behavior is in line with legal structures, social structures will suffer.
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 • J. Thomas Oldham, Putting Asunder in the 1990s
o The challenge for the no-fault divorce system is whether it can adequately provide for the custodial parent and the
children without placing unreasonable burdens upon the ex-husband's remarriage options.

• Carl Schneider, Rethinking Alimony; Marital Decisions and Moral Discourse

o The family is a central social institution which affects people in many of the most basic aspects of their lives.
o The obligations of family members assume to each other, then, will have important social consequences,
consequences in which the law has a legitimate interest.

B. Property Division at Divorce

• Marital Property: all property acquired by either spouse subsequent to the marriage, except separate property.

• Separate Property:
o Property acquired by gift, bequest, devise, or descent.
o Property acquired in exchange for property acquired by gift, bequest, devise, or descent.
o Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by
gift, bequest, devise, or descent.
o Property excluded by valid agreement of the parties
o The increase in value of property acquired prior to the marriage.
o **Most common law property states now divide property into marital and nonmarital shares and allow only the
former to be distributed at divorce.
o ALI Recommendation: in long-term marriages separate property gradually is converted into marital (and hence
divisible) property.

• Common Law and Community Property States Compared

o Under Common Law:
 If the jurisdiction is dual-property: only marital property divided
• “equitable distribution of marital property”
o NOT equal division
o Deferred marital property: during marriage, individual ownership, when marriage ends,
assets are shared
 If the jurisdiction is all-property: court will treat all property (including that acquired before marriage) as
“deferred marital property”
• “pure equitable distribution”
o Judge’s discretion: just and proper
o Legal ownership is relevant but not determinative
o Under Community Property:
 If the jurisdiction uses title-based distribution for separate property, then separate property will be
awarded to the spouse who owned it during marriage; community property is divided equally.
• Used in limited form in CA, LA, NM
 If not: community property is subject to equitable distribution, and some separate property may be as well.

• Title Based Distribution

o Courts have little to no discretion over property division.
o Governing principle: property is awarded to the spouses as they owned it during the marriage.
o Common Law: The spouse in whose name property was titled would receive it at divorce.
 Today, no common law property state is pure-title based.

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 o Community Property: The court would award separate property to the owner and divide the community property
equally.
 Used in CA, LA, MN

• Pure Equitable Distribution

o Judge has discretion to divide all the property of both spouses as is "just and proper" or through some equivalent
formula.
o Equitable owner will preside over the title holder.
o Which spouse owned property legally or equitable during marriage may be relevant but is not determinative of who
will get it at divorce.
o Pure Equitable Distribution States: CT, IO, KS, MA, MT, NH, ND, OR, SD, UT, VT
 In some of these states property is still characterized as marital or separate and ordinarily only marital
property is divided.

• Equitable Distribution of Marital or Community Property

o Gives judges more discretion than in a title-based system, but less than in a pure equitable distribution system.
o In most community property states, equitable division (rather than equal division) or community property is
mandated.
 Equitable division of separate property is sometimes justified as well.
 AZ, ID, NV, TX, WA, WI
o Most common law property states have gone to a form of a "deferred marital property": as long as the marriage lasts,
each spouse owns and manages assets that he or she brings into or acquires during the marriage. But when the
marriage ends, the assets are shares as if they had been acquired in a community property state.
 AL, AR, CO, DE, DC, FL, GA, HI, IL, IN, KY, NV, NJ, NY, NC, OH, OK, PA, RI, SC, TN, VA, WV,
WI, WY

Uniform Marriage Act §307

• §307: Alternative A (Common law property states):

o (a) In a proceeding for dissolution of a marriage, legal separation, or disposition of property following a decree of
dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or
lacked jurisdiction to dispose of the property, the court, without regard to marital misconduct, shall, and in a
proceeding for legal separation may, finally equitably apportion between the parties the property and assets
belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the
husband or wife or both. In making apportionment the court shall consider the duration of the marriage, and prior
marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and
sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial
provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for
future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of each
party in the acquisition, preservation, depreciation, or appreciation in value of the respective estates, and the
contribution of a spouse as a homemaker or to the family unit.
 Breaks this down into four steps:
• What is marital property?
• What percentage should go to which spouse?
• Which assets go to which spouse?
• Personal connection to an asset?

• §307: Alternative B (for Community Property states)

o (a) In a proceeding for dissolution of the marriage, legal separation, or disposition of property following a decree of
dissolution of the marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse
or lacked jurisdiction to dispose of the property, the court shall assign each spouse's separate property to that spouse.

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 It also shall divide community property, without regard to marital misconduct, in just proportions after considering
all relevant factors including:
 (1) contribution of each spouse to acquisition of the marital property, including contribution of a spouse as
homemaker;
 (2) value of the property set apart to each spouse;
 (3) duration of the marriage; and
 (4) economic circumstances of each spouse when the division of property is to become effective, including
the desirability of awarding the family home or the right to live therein for a reasonable period to the
spouse having custody of any children
o Basically breaks this down into four steps:
 What is separate property
 What was earned during the marriage
 Contributions from each party
 Value of the property set apart for each spouse

Uniform Marital Property Act

• Provides that property acquired by either spouse before adoption of the act remains the separate property of that spouse.
• Separate property that would have been marital property had it been acquired after the act was adopted is treated as marital
property when the marriage terminates by death or divorce.

C. The Meaning of Equitable Distribution

• In a common law property jurisdiction using traditional title-based property division, a spouse who did not work outside the
home throughout all or most of the marriage would ordinarily receive little or no property at divorce because her work as a
homemaker was not recognized as a financial contribution to the acquisition of property titled in her husband's name.

• Common law property states moved to equitable division of property at divorce to reflect a changed understanding of
homemaking.

• In some southern states (e.g. SC, MS, FL, WV) the courts developed equitable distribution by expanding resulting and
constructive trust remedies to count general economic contributions to the family and then homemaking as a contribution to
the acquisition of property. In some of these states such award are called "lump-sum alimony."

• Community property and presumptions in favor of equal division can be understood as eliminating the difficulties of
quantifying contributions by valuing the contributions of homemakers as equal to those of income producers.

In the Matter of the Marriage of Pierson

• Piersons were married for 24 years. Four parcels of real property in contention: family residence (90K), residence obtained
upon separation (24K), condo (2,500), plot of farmland (131K).
• In effectuating an equitable division of the marital estate, the court is not required to divide the property equally.
o The court has the power to equitably dispose of the property held by the spouses.
o Property acquired during the marriage is presumed to have been attained by both spouses' equal contributions,
regardless of in whom the property is titled.
o All marital property is subject to the presumption (including gifts or inheritance); since wife inherited the farm land
after the separation, it was not marital property.
o Circumstances surrounding the acquisition of an asset may dictate the award of the asset to one spouse exclusively
in order to achieve a broader purpose. One such purpose of dissolution is to provide the spouses adequate resources
to continue life self-sufficiently.

• If the potential income and separate property of one spouse is greater, the court may consider this factor in dividing
the marital estate, and may digress from the default of equal division. In this case that means that the husband should
receive a greater proportion of the estate since the wife has her inherited land.

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 Assets Wife Husband
Family Residence $20,000 lien $70,000
New Residence $24,310
Condo $2,500
Farmland (131,200/181,200)
Totals $46,810 $70,000

• Because both parties worked, the court approached this case not from the perspective of the Doctrine of Oneness, but about
how to create a clean break and allow each party to be independent.

• Forced sale is usually the last resort—that's why they created the lien instead.

• When the income and property of one spouse is greater, the achievement of economic self-sufficiency of both parties is not
necessarily best served by an equal division of the marital assets. In dividing the non-inherited marital assets, we therefore
take into account that the wife has greater income and greater financial resources.
o It would be intrusive for the court to come in and dictate that the person who saved should get the savings and the
person who bought the toys should get all the toys.

• There is usually a rebuttable presumption that each spouse contributed equally to the acquisition of property during the
marriage, whether the property is jointly or separately held.

Equitable Distribution v. Alimony

• Equitable distribution is final and can only be modified for fraud
• Equitable distribution does not have any tax repercussions, but hits both sides of the ledger
• Equitable distribution is subject to bankruptcy, but alimony is not.

Fault and Economic Misconduct

• Considering fault (cheating, abuse, etc.) when dividing assets could be considered overly intrusive in states that permit no
fault divorces.
• Economic waste can be considered in 40 states because if you spend down the property and waste it, you're negative
contribution to the marital pot should be noted; if you get more for contributing to the value of the property, you should get
less for decreasing its value.

Valuation of Homemaker Contributions

• Common Law, Title-Based Property Jurisdiction

o Spouse who did not work outside the home during the marriage would receive little to no property at divorce
(homemaking not recognized as financial contribution).
o The only way of providing for her is alimony.
o As Pierson and UMDA§307 indicate, an important reason that common law property states moved to equitable
division of property at divorce was a changed understanding of fairness to homemakers.

• Lump Sum Alimony: IN some southern states the courts developed equitable distribution by expanding resulting and
constructive trust remedies to count general economic contributions to the family and then homemaking as a contribution to
the acquisition of property. Called "lump sum" but they are essentially part of the property distribution.
• Community property and presumption in favor of equal division can be understood as eliminating the difficulties of
quantifying contributions by valuing the contributions of homemakers as equal to those of income partners.
• Judges strongly tend toward equal division of marital assets. When they deviate from equal division, they tend to give greater
weight to the parties' relative contributions to the acquisition of property than to their need.
• The rules in the few community property states that require return of separate property to the owner and equal division of
community property produce results similar to the business partnership rules.

41
 • ALI Family Dissolution Principles: recommend a presumption in favor of dividing marital property equally that could be
rebutted by showing that the former spouse is entitled to compensation for reasons that would justify an award of spousal
support or that the former spouse improperly disposed of marital property.

D. Property Division and Fault Considerations

• Most courts today exclude marital fault as a factor in property division, and even where fault can be considered, courts often
relegate it to a minor role.
• Economic Misconduct
o Defined as: "where one spouse uses marital property for his or her own benefit for a purpose unrelated to the
marriage at a time where the marriage is undergoing an irreconcilable breakdown."
o Factor in property division in more than 40 states
o Courts sometimes justify the consideration of economic fault on the basis that it pertains to the parties' contributions
to the acquisition or dissipation of assets.
• Waste
o Defined as: Conduct that has harmed the marriage or the marital estate may be viewed negatively, and considered as
a factor that would diminish that spouse's equitable share of marital property.
 Conduce having an adverse impact on the marriage or the marital estate (not just "good" or "bad" behavior)
is to be considered.
o An equitable division of marital property is intended to effect fairness between the parties in light of all of the
circumstances, not to punish "bad" behavior or enforce the criminal laws.
o The determination whether a spouse's expenditures constitute dissipation considers them in the light of that spouse's
over-all contribution, including whether the expenditures have rendered the spouse unable to support the other
spouse from the much-diminished estate at the time of divorce
 Gambling  not the act itself that is punished, but the surrounding circumstances (occurred during
marriage breakdown, intent to deprive spouse)
• If it occurred throughout the marriage, you can't whine about it at divorce.

E. Characterization of Property as Separate or Marital

Separate Property
o Property owned by either spouse before marriage
o Property acquired by a spouse after the marriage by gift or inheritance
o Property acquired after the marriage in exchange for separate property.

• Three-Step Analysis:
o Identify marital and separate property
o Calculate the net value of the marital property
o Distribute the marital property in an equitable manner.

Transmutation

• The owner of property may cange or transmute its character by a voluntary act manifesting this intent.
o Works both ways: separate to marital, marital to separate.
o Most states require a voluntary act manifesting intent
o Some states require an act in writing
• Some courts have held that a change in title automatically transmutes property. Most courts say transmutation is presumed.
Others says that change in title does not create a presumption in favor of transmutation but that intent to transmute may be
proven by this and other evidence.
• In some states, placing title to an asset that was originally separate property in the joint names of both spouses transmutes the
asset into jointly owned separate property of each, which in other states the asset becomes marital property.
• In CA, spousal gifts usually remain marital property, except that gifts of clothes and jewelry are separate unless they are
substantial.
• If separate property is used to make a gift, some courts say that the property is transmuted into marital property and others
say that it becomes the separate property of the other spouse.

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 • Intentional comingling:
o Property brought into the marriage and paid off with marital funds.
• Unintentional comingling:
o States that treat interest from separate property as marital property.
• Spouse who claims ownership of the property has the burden of tracing the funds!

A. Characterization of Property as Separate Property or Marital Property

a. Separate property can change its character. Separate property can become marital property.
i. The issue here is the intent of the parties. Presumption of what kind of property can be rebutted
b. One form of transmuting property is a change in title. What should a court do with a change in title?
i. Some courts say that change in title automatically transmutes property. Some states say that if you change title
into one spouses name its separate property but others say that is marital property
1. E.g. If H gives separate property to W, does this property become separate property of W or marital
property? W could say it is a gift of which a gift is always separate property
ii. Some states say that transmutation is proved by a change in title but this can be disproved
iii. In some states, there is the idea of commingling. If you take separate property and you commingle it w/ marital
property it is transmuted into marital property
iv. Some states say that if there is a dual interest in property, but you cannot trace-out the separate property, then all
property becomes marital propertythis is the most common form of property
v. Some states that the increase in passive appreciation (changing economic conditions)of property is separate
property. However, if increase is active (financial or managerial contributions of one of spouses or either or
both parties perform substantial services) then the increase worth of property is marital property.
vi. Some states say that income during the time that the parties are married is all marital property
vii. Some states say that gifts from outside people is whatever the donor intends it to be. So if the father buys a
house for the daughter and the name on the title is of both parties. Then the question would be did the father
intend the property to be solely for his daughter or both parties.
c. O’Brien v. O’BrienWife and husband getting a divorce. Π wanted an equitable distribution of property. During the
marriage, Δ received inheritance from her father’s estate and put it in an investment account, she also put $4000+ of
marital assets into account, but then they withdrew over $38000+ from account. During this time Δ received money from
her aunt Mabel. Aunt Mabel also sent money to π noting in a letter that the money was intended for Δ b/c under tax law
aunt could only give $20000 each. On the advice of her broker both husband and wife’s name were on the investment
account. Within the period of marriage the statute requires that the property is marital property unless there were gifts.
Holding: the court address several claims by the π/husband to find that the property was separate property of Δ/wife.
i. Issue 1: π alleged that b/c marital funds was commingled w/ inherited funds (separate property) this transmuted
investment account from separate property to marital property
1. Court rejected ILL doctrine of transmutation that commingling of marital property creates a rebuttable
presumption that all property has been transmuted. The court stated that mere commingling of
marital funds w/ separate funds alone does not automatically transmute the separate property into
martial property
a. There is an idea here that when there is a small amt of marital funds compared to separate
funds, separate funds doesn’t automatically transmute into marital funds
ii. Issue 2: π claims that Δ failed to trace-out marital funds deposited in investment account
1. Court stated that even though investment account started during marriage, the original deposit in the
account was Δ separate property from her father’s estate. The court adds that b/c money was
withdrawn from the account it is safe to assume that marital funds was in that withdrawn amt which
left only separate property.
iii. Issue 3: π said that he actively participated in managing of investment account which led to increase in value of
account
1. Court states that they did not find any action of spouses in meeting w/ the broker which rose to the
level of substantial activity in investment account. Court said that π need to show substantial services
beyond just having his name on acct and meeting w/ broker
iv. Issue 4: π said that TC erred in b/c 2 $10000 checks were his and not Δ
1. Court stated that Aunt Mabel wrote those checks to π as a conduit for a gift to Δ. Court stated that
funds were not intended for π’s bounty. Therefore checks did not belong to π but was separate property
of Δ

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O'Brien v. O'Brien

• Parties married and divorced without children. Δ received an inheritance of $163K and put $153K + $10K gift from her aunt
in an investment account. The parties were jointly named on the account. Defendant placed three more $10K gifts from her
aunt in the account in addition to about $4K of marital funds. The account received dividends, share investment gains and
market value gains.

• If either or both spouses perform substantial services during the marriage which result in an increase in value of an
investment account, that increase is to be characterized as an active increase and classified as a marital asset.

• There is a distinction between active and passive appreciation of separate property.

o Active appreciation: involves the managerial or financial contributions of one of the spouses to the separate property
during the marriage.
o Passive appreciation refers to the enhancement of the value of the separate property due to inflation, changing
economic conditions, or other circumstances beyond the spouses' control.
o The party seeking to establish that any appreciation of the property is passive must do so by a preponderance of the
evidence standard.

• Active Increase Test: In order for a spouse to be awarded a proportionate share of the increase in the other spouse's
separate property, he or she must show:
o (1) A contribution of substantial services
o (2) A direct correlation between those services and the increase in value
o (3) The amount of the increase in value
o (4) The performance of the services during the marriage
o (5) The value of the services, lack of compensation or inadequate compensation.

• Active increase factors showing contribution of substantial services:

o Nature of the investment
o Etent to which the investment decisions are made only by the party or parties, made by the party or parties in
consultation with their investment broker, or solely made by the investment broker
o The frequency of contact between the investment broker and the parties
o Whether the parties routinely made investment decisions in accordance with the recommendation of the investment
broker, and advice of the investment broker
o Whether the spouses conducted their own research and regularly monitored the investments in their accounts, or
whether they primarily relied on info supplied by the investment broker
o Whether the decision or other activities, if any, made solely by the parties directly contributed to the increased value
of the investment account.

• Trace Out
o Can track marital funds and separate them from the separate property;
o Presumption that all property acquired during the marriage is marital.
o Can rebut the presumption by showing an exemption or a carve out.
o Tendency to create more marital property than separate.

• In this case, the fact that there was a withdrawal of more money for marital purposes than marital assets that were put in the
account, there was no transmutation of funds (comingling). Also, the increase in the investment account was due to passive,
rather than active, appreciation since they were paying a stockbroker to manage the account.

F. Appreciation of Separate Property

• Community Property States

o Classification is important during the marriage and affects rights of third parties.

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 o Follow the "inception of title" rule.
 The character of an asset is determined when it is acquired.
 If the increase was passive, asset goes to the title holder.
o Property acquired as separate property remains separate even though community property is invested in it, and vice
versa.
o The treatment of increases in value depends of the cause of the increase.
 Passive: continues to be separate property.
 Active: community is entitled to reimbursement for the value of the contribution.

• California rule/ Van Camp Approach: applied in most community property states
o Pereira v. Pereira: market force value increase goes to separate property, the rest to marital property (if mostly due
to community effort)
o Van Camp v. Van Camp: a fair salary must be paid to the community for labor of the spouse (if mostly due to market
forces.)
 Preference for method that will allow greater return to the primary source of the increase

• Common Law
o Many states increases in value caused by market or other passive forces are allocated proportionately according to
the contributions of separate and marital funds.

o Source of Funds Rule: increases in the value of separate property attributable to marital fund or efforts are marital
property, and increases attributable to market changes and the like are separate income states and marital in others.

• ALI Family Dissolution Principles

o Increase in value of separate property is marital if attributable to a spouse's labor and separate if due to other causes.

• In all states income produced by marital property—rents, dividends, interest—is also marital property.
• Income from separate property:
o Spanish Rule: Treats income from separate property as community property.
 ID, LA, TX, WI
o American Rule: Income from separate property is separate property.
 Other five community property states
o Equitable Distribution statutes that address this issue usually say that income from nonmarital property is
nonmarital.
o ALI Family Dissolution Principles: treat income from separate property as they treat appreciation in value: Income
is marital if attributable to a spouse's labor and separate if due to other causes.

G. Treatment of Income from Property

• Income from a trust fund:

o Community Property State: 4 say separate, 5 say marital
o Common Law State: treated as separate property in 8 states, marital property in 5 states
• If it replaces the income from labor, it is no different from income from employment, which is marital
• Annual installments of a lump sum monetary award received during the marriage (disability settlement, lottery winnings,
etc.) count as marital property because it's about the right to receive the funds, and the right was acquired during the
marriage.

G. When does marriage end for the purposes of property division?

• Date of Separation
o CA, NC, PA, VA, WA
• Date the petition for dissolution was filed
o NJ
• Date the decree is entered
o AR, RI

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 • Date of the prehearing settlement conference
o MN
• Most jurisdictions appear to value assets as of the date of judgment of divorce, though courts in some states have said that the
date of valuation is to be decided case by case.

H. Choice of Law Issues

• Under traditional choice of law principles, the court in the community property state will apply its own law to determine what
property is subject to division, but it will apply the law of the state where the property was acquired to determine whether it is
community or separate property.
o The common law titles system governs ownership during marriage.
• Community Property States
o Quasi-Community Property Statutes
 If property would have been community property had it been acquired in the state, it is treated as
community property for purposes of property division at divorce.
o Apply substantive property division law of the state in which the property was acquired.
• Courts in most common law property states have held that the state's own laws governing characterization as well as division
should apply, which eliminates problems of relating inconsistent laws of different jurisdictions.

I. Dividing Debts

Geldmeier v. Geldmeier
(***She went over the numbers in this case with a fine tooth comb! Make sure you understand them and can trace them through the
court's reasoning.***)

• Parties were married for 19 years and had two kids. Dad worked, mom stayed home w/ kids, sometimes worked as secretary.
She completed a master's degree during the marriage.
• Under the court's broad discretion to divide and distribute the marital estate in a manner that is just and equitable,
the court need not divide the property equally.
o Dad received no assets at dissolution, being charged with debts exceeding the property he received.
o The court need not divide debts and assets equally in making a fair and equitable distribution of the marital property
—court may charge spouse with debts based on his or her ability to pay.
o The court here divided assets in such as way as to allow the Mom (custodial parent) to support the children.
o Dad had greater ability to assume the debts because he was the only one with a job.

• Some jurisdictions only allow the division of marital debts upon dissolution, and the separate debts remain charged to the
spouse who incurred them.
o The existence of the separate debts in determining the spouses' respective abilities to assume the obligations.

• Four Methods for Dividing Debt:

o (1) Equitable division of all
 Treat as distinct issues the division of seets and the division of debts, dividing esach "equitably."
 Relevant factors include ability to pay, which spouse was the principal financial manager or incurred the
debt, etc.
o (2) Divide debts proportionately to division of assets
 Treat division of assets and debts as distinct issues but llocate responsibility for debts in the same
proportion that assets are awarded
o (3) Total netting out
 From the total value of the divisioble assets subtract the total amount of divisible debts. Divide the
remainder.
o (4) Netting out of specific assets
 When an asset is specifically encumbered, value the asset at the difference between its market value and the
debt.
 Some courts extend this method to include debts traceable to the acquisition of a specific asset. Other assets
and debts are divided equitably.

46
  Some courts say if an asset is worth less than the amount of the debt incurred in acquiring it, the value of
that item is simply reduced to zero; the balance of the debt is not used to reduce the net value of any other
item.

• In most states that permit division only of marital property, only marital debts are divisible at divorce. Separate debts are the
responsibility of the spouse who incurred them.
o Separate debts taken into account upon equitable distribution of marital property.

• Each spouse's separate property is liable for community debts.

K. The Marital Home

• Common practice = order division of house, but not immediate sale

o Legislatures in some states have significantly limited the authority of trial courts to delay the sale of the family home
for a long period of time because of the limitations such an order places on the ability of the spouse not occupying
the home to make use of his or her share.

• Instead of awarding ownership of the home to one spouse, with the obligation to pay the other some amount on sale, some
courts order continued joint ownership of the house with sale ordered at some future date, and permit the custodial parent to
remain in the house until sale.
o The court should allocate responsibility for the mortgage payments until the house is sold.
o If the non-occupying spouse is ordered to pay the mortgage, half the payments might be characterized as spousal or
child support.
• Problems with splitting the equity of a house or maintaining joint ownership:
o Person living in the house could cause it to depreciate; economic waste
o Person living in the house could make massive improvements and increase equity only to have to split the benefit of
that labor
o Hard to sell a house with a co-owner who is unwilling
o Person living in the house and making mortgage payments would be paying into someone else's property interest

VII. SPOUSAL SUPPORT AT DIVORCE

A. Overview

• Vernier & Hurlbut, The Historical Background of Alimony Law and Its Present Structure
o Pecuniary provision for the injured wife used to be necessary as a matter of social economy
o The notion of punishment depending upon the degree of the husband's moral delinquency played some part in the
process
 Wife could receive 1/2 to 1/3 combined income of the spouses
o Husband's duty to support continued only so long as she cohabited with him or lived apart because of his
misconduct
• Peele, Social and Psychological Effects of the Availability of Alimony on the Spouses
o Alimony perpetuates a relationship passionately undesired and in a way that continues and even increases former
antagonisms
o He may feel that as long as he is contributing regularly to his former wife' support he has the right to demand that he
be given a voide in the management of the household of which he formerly was a part
o The payment of alimony can be a symbol of power to both the man and the woman
o Her desire to punish him may be a much more important factor in her insistence on receiving alimony that is her
need for financial support
o There are many more women who do without what they need rather than take legal means to force their former
husbands to support them, than there are women who use the courts to harass their ex-spouses
• Wilson: The original promise in marriage is till death do you part; the courts use alimony to put the spouses in the
place where they would have been if one spouse hadn't broken that promise/breached the contract.

Goals and Rationale for Alimony

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 • Wanting a divorce is like breaching a promise or a contract. There is a continuing duty of support as expectations
damages.
• Fault should not be considered according to the URMD.
• Fairness and equity are the end goals.
• Self-support (or eventual self-support) is the goal as well, while maintaining the standard of living during the marriage.
• Pre-marriage expectations (LeRoque) vs. expectations coming out of the marriage: can't undo getting married and
staying home to support your spouse's career and raising the kids, but you shouldn't be penalized for doing it and make to do
a job you hate just to support yourself.
• Unjust enrichment!
• Lost opportunity and earning potential!

B. Changing Attitudes Toward Spousal Support in the No-Fault Era

• Half or more of alimony awards were of limited duration in the 1970s and 1980s
• Appellate courts usually uphold awards of indefinite support to women who were homemakers for more than 15-20 years.
• Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath
o Anglo-American family law has traditionally reflected the social division of function by sex within marriage
o It will be necessary to withdraw existing legal supports for that arrangement as a cultural norm
• England & Farkas, Households, Employment and Gender
o Whether employed outside the home or not, wives tend to accumulate fewer resources that are of value outside the
current relationship.
• Ellman, The Theory of Alimony
o If the spouses view their marriage as a sharing enterprise, they will usually conclude that they are both better off if
the lower earning spouse spends more on their joint domestic needs, and allows the higher earning spouse to
maximize hir or her income.
o The function of alimony is to reallocate the postdivorce financial consequences of marriage in order to prevent
distorting incentives.
o By eliminating any financial incentive or penalties that might otherwise flow from different marital lifestyles, this
theory maximizes the parties' freedom to shape their marriage in accordance with their nonfinancial preferences.
• Oldham, Putting Asunder in the 1990s
o It is not fair to ask the husband to compensate the wife for all career damage she incurred on the expectation tha tone
day she would assume child care responsibilities.
• Williams, Is Coverture Dead? A New Theory of Alimony
o Even after divorce, noncustodial fathers continue to receive the benefits of the dominant family ecology: they can
continue to perform as idea workers while their children are raised according to norms of parental care.

C. Applying the Changing Views

Uniform Marriage and Divorce Act §308

• (a) In a proceeding for dissolution of marriage, legal separation, or maintenance following a decree of dissolution of the
marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for
either spouse only if it finds that the spouse seeking maintenance: (1) lacks sufficient property to provide for his reasonable
needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or
circumstances make it appropriate that the custodian not be required to seek employment outside the home.

• (b) The maintenance order shall be in amounts and for periods of time the court deems just, without regard to marital
misconduct, and after considering all relevant factors including:
o (1) the financial resources of the party seeking maintenance, including marital property apportioned to him, his
ability to meet his needs independently, and the extent to which a provision for support of a child living with the
party includes a sum for that party as custodian;
o (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find
appropriate employment;

48
 o (3) the standard of living established during the marriage;
o (4) the duration of the marriage;
o (5) the age and the physical and emotional condition of the spouse seeking maintenance; and
o (6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse
seeking maintenance.
• The UMDA's preference for using property division, rather than spousal support, as the primary vehicle for financial
settlement between spouses furthers the goal of providing the parties with a "clean break."
• Factors used for deciding property division: duration of marriage, sources of income, vocational skills, children,
whether one is receiving maintenance
• Standard = during marriage

Turner v. Turner

• Parties were married for 22 years; 3 kids. Mom was 47, had bachelor's degree. She had worked part-time as a reading teacher
and was earning a degree as a reading specialist. At divorce, she made $12K/yr. She received $80K from marital assets. Dad
will pay child support and college tuition. Dad is 49 and earns $31K with a pension of $5K as a civil engineer. While in the
army, Dad lost his leg and might lose the other.

• A court order of rehabilitative alimony, so that the nonworking spouse is required to develop the appropriate skills
necessary to acquire employment post-dissolution, is a permissible means of granting spousal support.
o The courts must recognize that women have significantly greater access to the job market, and that the
preponderance of divorced men and no longer capable of maintaining two households.
 Tendency of the courts to mandate that the nonworking spouse be maintained at the level commensurate
with the marriage is no longer realistic.
o The courts must implement a system whereby the nonworking spouse is encourages to develop skills facilitating her
entry into the job market. Toward this end the court may order that alimony be remedial in effect and terminate on a
set date.
o The court must first determine whether the non-working spouse possesses the potential to procure proper
employment. If such potential exist, it may then award her alimony for the period necessary to acquire such skills.
The court may order the use of marital assets to pay educational costs associated with the rehabilitation.

• The award of rehabilitative alimony does not prohibit an aware of permanent alimony.
o Following the rehabilitation period, the court may still award permanent alimony to the supported spouse to
supplement her income where it falls below the level commensurate with the marriage.
o Mrs. Turner received $50/week for one year.

• "Things change. That's life. Get over it and get a job."

o What would be fair to Mrs. Turner in this case? We would like the court to counter-balance the fact that she gave up
pursuing employment and skills in favor of supporting her husband through homemaking, but at the same time
they're getting divorced and she needs to change her expectations and get a job.

Rehabilitative Alimony: In Re Marriage of Larocque ("Can't get blood out of a turnip.")

• Parties married for 23 years. Wife was a homemaker. Husband was a judge. Wife awarded household items, family car,
income tax refund, and family residence ($43,474). Husband received the retirement fund ($54,340). Wife wanted more than
$1,654/mo., not including mortgage payments and taxes, to meet her monthly expenses. Circuit court determined that wife
could become an elementary school teacher in 18 month and earn between $12K and $15K, thereby affording her the
standard of living commensurate with the marriage. Also, after her last child left home she could sell the family residence and
use that money to support herself. Circuit court awarded her $1500/mo. for 5 months and $1000/mo. for 13 months.

• A maintenance award must further the two legislative goals of support for the recipient spouse and assurance of a fair
and equitable financial arrangement between the parties.
o WI guidelines require that a court order support payment which will support the recipient spouse in a manner
commensurate with the earning capabilities of both parties.
o Court's order that she sell the house to support herself is not supported by the statute.

49
  Forcing one spouse to liquidate assets in order to survive, while granting the ther ful use of a salary and
pension fund, is not consistent with the statutory mandate of fair and equitable division.
o The standard of maintenance should be commensurate with that enjoyed during the marriage.
 It may not maintain the standard for one spouse and not the other.
o There was no evidence that wife could get the type of employment required by the court, so the court abused its
discretion as to duration of maintenance.
• Rehabilitative Alimony is designed to get the supported spouse back on his/her feet
o In LeRocque the court considered (a) how long it would take her to get certified as a teacher; (b) likelihood she
would get hired with her qualifications; (c) whether there were teaching jobs available in the geographic area; and
(d) how long it would take her to earn enough money to preclude alimony payments.
o The court may need to revisit rehabilitative alimony at the end of the rehabilitative period to examine if there was a
material change in circumstances:
 Economy
 Are jobs still available?
 How hard was the spouse trying to find a job

• Reimbursement alimony terminates at remarriage of supported spouse.

• It doesn't make any sense that your ex-spouse has a continuing duty to support you and maintain the standard of the marriage
ONLY until you remarry because the choice to remarry in no way impacts a past sacrifice. The explanation for alimony has
changed over time to reflect only the breach of promise and changed expectations as opposed to strict duty to support.

Rogerson, Spousal Support After Moge

• Spouses who demonstrate the greatest economic need and who will experience the greatest economic hardship after marriage
breakdown—whether by reason of age, illness, lack of skills, or a poor economy—are viewed as the most sympathetic
candidates for spousal support, while those who have youth, good health, and employability in their favor are seen as self-
sufficient economic actors, despite their past and ongoing responsibilities for the care of children.

Bracklow v. Bracklow

• Canadian Supreme Court upheld a spousal order where the wife had become too ill to work, even though the marriage was of
relatively short duration and the couple had been more or less economic equals during the marriage.

ALI Family Dissolution Principles

• Propose that compensatory spousal payments be ordered to compensate a spouse for financial losses occasioned by the
marriage, rather than to relieve need.
• A spouse frequently seems in need at the conclusion of a marriage because its dissolution imposes a particularly severe loss
on him or her. The intuition that the former spouse has an obligation to meet that need arises from the perception that the
need results from the unfair allocation of the financial losses arising from the marital failure. This perception explains why
we have alimony, and why all alimony claims cannot be adjudicated by reference to a single standard of need.
• §5.03(2)
o (a) In a marriage of significant duration, the loss in living standard experienced at dissolution by the spouse who has
less wealth or earning capacity.
o (b) An earning capacity loss incurred during marriage but continuing after dissolution and arising from one spouse's
disproportionate share, during marriage, of the care of the marital children or of the children of either spouses.
o (c) An earning capacity loss incurred during marriage and continuing after dissolution, and arising from the care
provided by one spouse to a sick, elderly, or disabled third party, in fulfillment of a moral obligation of the other
spouse or of both spouses jointly.
• §5.03(3): Awards may compensate for:
o (a) The loss either spouse incurs when the marriage is dissolved before that spouse realizes a fair return from his or
her investment in the other spouse's earning capacity.
o (b) An unfairly disproportionate disparity between the spouses in their respective abilities to recover their pre-
marital living standard after the dissolution of a short marriage.

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Consideration of Fault in Alimony Awards

• In fault-based divorce a wife's misconduct could either bar her from receiving alimony or limit the amount, and in some
places the busband's fault could be a factor in increasing the amount.
• Following states do not permit fault to be factored into alimony award: AK, AZ, AR, CA, CO, DE,HI, IL, IN, IO, KS, ME,
MN, MT, NE, NV, NM, OH, OK, OR, VT, WA, WI
• Even if general fault is not a factor, economic misconduct may be.

Carbone, The Futility of Coherence: The ALI's Principles of the Law of Family Dissolution, Compensatory Spousal Payments

• Courts that purport to allocate the unavoidable costs of dissolution by assessing the cause of the marital failure are in fact
rewarding failure and punishing sin. They are not compensating one spouse for a harm "caused" by the other.
• The ALI crafts it principles to provide the largest expectation awards for the women most likely to suffer from breack of the
promise to remain married.

D. Spousal Support for the Caregiving Parent?

General State of the Law

• UMDA§308(a)(2) provides that a caretaker of children may be eligible for spousal support even though she or he is
otherwise capable of self-support, and many cases have held that custodial parents of youn children should receive spousal
support to enable them to remain at home with the children.
• When spousal support is awarded because the recipient has custody, it usually terminates at the latest when the child turns 18.

The Politics and Social Value of Caregiving

• Estin, Maintenance, Alimony, and the Rehabilitation of Family Care

o Support Payments to caregivers would have two benefits:
 Facilitating the care of children in the difficult period after divorce
 Allocating to both parents the costs of putting children first during marriage.
o There is only one disadvantage to caregiver support remedies: the risk that they will foster traditional family roles,
economic dependence, and the corresponding gender roles that many men and women find oppressive.
• Perry, Alimony: Race, Privilege, and Dependency in the Search for Theory
o Women in higher income marriages are more likely to receive alimony than women in lower income marriages
o Paradigmatic model of marriage and divorce has the potential to reinforce the subordination and marginalization of
Black women in two ways:
 Reinforcing privilege or an image of privilege for middle and upper-middle class white women in both
marriage and divorce
 Reinforcing a hierarchy among women in which their value is determined by the presence or absence of
legal ties to men, particularly affluent men.
o The law, since no fault, has been sending a similar message to all women: it is not wise to depend on a man for your
life-long economic survival. The privilege of choice, that many middle or upper-middle class women once may have
taken for granted, is more than ever, in jeopardy.

VIII. DIVORCE AND NEW P ROPERTY

1. Divorce and New Property

a. Traditionally not considered marital property, but now it typically is.
b. NOTE:
i. When we deal with these issues we typically have to use the discounted cash flow method to determine the
present value of the property (Present Value = Future Value divided by (1 + interest rate)).
c. Pensions and Other Employment Related Benefits:
i. Pensions are marital property subject to equitable division (typically whether they are vested or not vested):
1. Typically divided 50/50.
2. Often difficult to value.

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 ii. You should always employ a CPA to value the pension.
iii. Generally, there are two different types of pension plans:
1. Defined Benefit Plans—employee’s benefits are determined on the basis of a formula, usually
based on years of service and salary, which does not depend on the amount of contributions.
a. Valuation:
i. Difficult to value.
ii. Often pension plans permit employees to choose from several alternative
methods of payout.
2. Defined Contribution Plan—similar to a 401K, employee puts in a % of their salary, the employer
matches this percentage, and it goes into a fund. You get the money that is in the fund when you
retire. Here, the risk is on the employee.
a. Valuation:
i. Relatively Simple—the employee’s interest is worth the current fair market
value of the assets in the account.
iv. Laing v. Laing (1987) (In a divorce, court gave husband his pension and offset it with other property to the
wife. H argues this was inappropriate)
1. Court gives two methods of valuing and dividing pension benefits:
a. Present Value (Offset) Approach:
i. Court determines the present value of the pension, whether vested or not, and
awards non-employee spouse offsetting assets.
1. Benefits:
a. Finality
b. In shorter marriages, it keeps the pension whole
2. Problems:
a. Because the non-employee spouse receives his or her share in
a lump sum at the time of the divorce, the method unfairly
places all risk of possible forfeiture on the employee spouse.
b. Pension could go up in value, or down in value, or employee
could forfeit.
b. Reserved Jurisdiction/Deferred Distribution Approach (court prefers this approach)
i. Trial court retains jurisdiction and orders the employee spouse to pay to the
former spouse a fraction of each pension payment actually received.
ii. This is often accomplished through a Qualified Domestic Relations Order (under
ERISA or a comparable state or federal plan), which instructs the pension plan
administrator to divide the plan as discussed in Order.
1. Benefits:
a. More even allocation of risk—nonvested pensions are
sometimes forfeited.
2. Problems:
a. Counter to goal of finality.
v. NOTES:
1. In jurisdictions that permit only marital property to be divided at divorce, a pension earned in part
before marriage and in part during marriage must be divided into marital and nonmarital shares.
Most courts use the “time rule” (cite Laing)—value of the pension rights is multiplied by a
fraction whose numerator is the number of years the pension accrued during the marriage and
whose denominator is the total number of years the pension accrued.
a. Other courts use accrual method—present value of accrued benefits on the date of the
marriage is subtracted from the present value of the total accrued benefits on the date of
the divorce, and the difference is the value of the benefits earned during the marriage.
2. Some courts have concluded that employee stock options, which were earned during the marriage,
but have not vested and cannot be exercised until after the parties’ separation, should be treated
like pension benefits and are thus divisible marital property.
vi. Social Security, Military, and Other Pensions
1. Typically, state courts have treated federal pensions like other pensions and have applied their
marital property law to them. But, the Supreme Court has held that statutory provisions that
prevent covered employees from assigning or alienating their pension rights were intended to
prevent courts from treating these rights as marital property. See Hisquierdo v. Hisquierdo
(1979).
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 2. Military Retirement Benefits
a. Originally, McCarty v. McCarty (U.S. 1981), Court said states could not treat military
retirement benefits as marital property.
b. Uniformed Services Former Spouses’ Protection Act—provides that each state’s divorce
courts may treat disposable military retired pay or retainer pay according to the state law
governing division of marital property.
c. Military pay is considered like any other retirement benefit. It is not subject to ERISA
and you cannot use a QDRO, but you can use a similar order.
d. You can basically take the settlement agreement or court order and forward it to the
appropriate military branch and federal statutes say if there has been an overlap of ten
years between the marriage and military service, then the military will take the
information they are given and will split up the military benefits up to 50% (send up to
that much to the other person in the court order).
e. Supreme Court has said military disability pay is not divisible property. Mansell v.
Mansell (1989).
3. Civil Service Pensions
a. Civil Service Act allows treatment of civil service benefits as marital property divisible at
divorce.
4. Social Security
a. Most courts have held that Social Security Benefits are not property subject to division
and that their value may not be considered in the division of property.
b. These payments may, however, be treated as income from which spousal support can be
paid.
c. Divorced spouses are entitled to receive Social Security benefits on the account of the
divorced spouse if they were married for at least ten years and have not remarried.
vii. Qualified Domestic Relations Orders
1. Retirement Equity Act—for pensions subject to ERISA, a divorce court may enter a QDRO which
directs the pension plan administrator to pay a portion of an employee’s benefits to someone other
than the employee.
2. The Order can require that payments to the nonemployee begin before the employee actually
retires.
3. Requirements for QDRO:
a. Name and address of participant and payee;
b. How much is to be paid;
c. # of payments
d. Plan to which the order applies.
4. These only apply to pensions covered by ERISA—typically, private pension plans. State, federal,
and local pension plans are not governed by ERISA. Often, there will be a comparable statute in
place, though. South Carolina has a provision under § 9-18-10, that creates a mechanism similar
to a QDRO.
viii. ERISA Plans:
1. Cover any company doing business in interstate commerce.
2. With ERISA plans, the spouse is usually considered to be the alternative payee and is typically the
person who has rights under ERISA that cannot be waived. Nobody can edge out the rights of the
alternative payee. A lot of people enter pre-nups before marriage. This is usually people entering
into a second marriage. If the pre-nup waives the rights of the spouses to each other’s retirement
plans. That can be done only by agreement between the parties when they are spouses. Thus, it
probably can’t be done in a pre-nup.
3. Can you in a QDRO take care of the possibility that the alternate payee dies before receiving all of
the income to which he or she is entitled? Does the death of the payee stop the obligation? Under
ERISA, alternate payee can name a beneficiary. You cannot do that under some state plans
(particularly South Carolina).
4. QDROs can cover alimony, child support—anything that involves transfer of funds from one
spouse to another after the marriage. But, the property distribution is final and child support are
modifiable. Alimony would stop with death of person paying the alimony. That portion that is
property would continue on, but the alimony part would cease unless you sit down and agree
ahead of time as to how you are going to handle that.
d. Professional Practices and Other Closely Held Businesses:
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 i. Only NY and possibly Mich treat professional degrees as property for equitable distribution. Those states
say that if you have a law degree, we will value that degree, and consider it for equitable distribution. Most
other states say that the value of a degree is only in its income stream. Thus, the proper means of handling
this is through the support mechanism.
ii. Good Will—this is simply that portion of the value of the business other than the value from the hard
assets. Fixtures, property, accounts receivable, bank accounts. SC, and most other states, say that good
will can be property and can be equitably divided. In this state, we take the position (this varies from state
to state) that the court needs to distinguish between enterprise good will (subject to property distribution)
and personal or professional good will. Ex: to the extent that a company has a value over and above the
actual products, etc. that is enterprise good will. It is not associated with who is serving you. If it is a
family business or business owned by one spouse, that part of the value that is associated with the business
itself and not the people in the business is enterprise good will and it distributable. Ex: If you have a
family physician that you always go to. The value associated with that medical practice is personal or
professional good will. This is not property for purposes of equitable distribution. If the value is because
of the people, it is personal or professional.
1. Law practices are particularly difficult because it is hard to sell a law practice (due to ethical
considerations).
iii. May v. May—illustrates the South Carolina and majority view differentiating between enterprise good will
(subject to distribution) and personal good will (not subject to distribution).
iv. Valuation of goodwill is very difficult. If the same or a similar business has recently sold, valuation is not
a problem because market value is accepted as the gold standard for this issue.
e. Personal Injury Awards, Disability Pay, and Similar Interests
i. SC’s mechanistic approach – assumes that such awards are martial property and gives court discretion to
divide the awards
ii. analytic approach- court determines what portion of the damage award affected the martial unit and what
was uniquely personal
iii. awards received before marriage or awards under analytic approach can be commingled and transmuted
into martial property
f. Degrees, Licenses, Jobs, and Earning Capacity
i. Mahoney v. Mahoney—
1. professional degrees are not subject to equitable distribution
2. Valuing a professional degree in the hands of any particular individual at the start of his or her
career would involve a gamut of calculations that reduces to little more than guesswork.
3. Court in this case uses reimbursement alimony to help wife after she has foregone
opportunities in helping him achieve his professional career.
ii. O’Brien v. O’Brien—
1. Holds that husband’s license to practice medicine—essentially the couple’s only asset of
consequence—is marital property.
2. Note that this is a N.Y. Court—very much the minority view.

A. Overview

• New Property:
o pensions and other employment benefits
o Goodwill in small businesses
o Professional licenses
o Educational degrees

• If these interests are to be treated as property, courts must assign a present value to them in the course of determining the total
property division.
o Because these interests typically represent a stream of payments made over time, valuing them is difficult.

• Valuing Steams of Payments:

o Salvage Value: Assets that produce income are almost always going to be worth more than their salvage value,
although their total value includes their salvage value.

54
  Goose that lays golden eggs: salvage value = meat and feathers; total value = meat, feathers and all the eggs
it lays before it dies.
o Book Value: How much you paid for the goose; historical value.
o Time Value of Money: amount something is worth plus interest over time (sitting in bank as opposed to spending
it)
o Discounted Cash Flow Method: Present Value = Future Value ÷ (1 + interest rate)

B. Pensions and Other Employment-Related Benefits

• Many pension plans provide that an employee has no absolute right to a pension unless he or she worked for the employer for
many years and was employed by the employer at the time of retirement. Because of this, courts tend to hold that pensions
are not considered divisible property.
• ERISA
o Qualified Pension Plans: employees covered by qualified are guaranteed that even after relatively short periods of
employment their interests in the plan will vest

• Contributory Plans: both employer and employee contribute; employee's contributions are immediately vested; employer
contributions may not vest until certain conditions are met (ERISA limits how long an employer can delay vesting)

• Maturing Point: the earliest time at which an employee can draw retirement benefits.
o Matured vs. Unmatured

• Noncontributory Plan: only employer contributes.

• Defined Contribution Plans: each employee has a separate account, and the amoun t of the employee's benefits will depend
on how much is in the account through contributions, interest earned, and any other increase in value when the employee
begins to draw benefits.

• Defined Benefits Plan: Employee's benefits are determined on the basis of a formula, usually based on years of service and
salary, which does not depend on the amount of contributions. Individual accounts are not maintained for each employee.

o Will want to get a QDRO-Qualified Domestic Relations Order

 An order that binds the pension plan itself, that says, when the plan starts making payments on this wage
earners account, you are going to pay x% of the plan to the wage earner and the remaining x% to the
former spouse

• "Present Value" or "Offset" Approach: court determines the present value of the employee spouse's right to receive
payments from the pension in the future, awards those rights to the employee, and awards the nonemployee spouse other
marital property in lieu of his or her share of the pension.

• "If, as, and when" Approach: each spouse receives a fractional share of each pension payment as it comes due.

• In jurisdictions that permit only marital property to be divided at divorce, a pension earned in part before marriage and in part
during marriage must be divided into marital and non-marital shares.
o Time Rule: The value of the pension rights is multiplied by a fraction whose numerator is the number of years the
pension accrued during the marriage and whose denominator is the total number of years the pension accrued.
o Accrual Method: the present value of accrued benefits on the date of the marriage is subtracted from the present
value of the total accrued benefits on the date of the divorce, and the difference is the value of the benefits earned
during marriage.

• Joint and Survivor Annuity: provides for periodic payments to the retired employee and after the employee's death to the
surviving spouse. If an employee divorces before retirement, REA allows the nonemployee former spouse to retain joint and
survivor annuity benefits if the QDRO expressly provides.
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 o Can also provide only survivor benefits.

• Unexercised stock options earned during the marriage, but not vesting until after the separation, should be treated like
pension benefits (divisible marital property with uncertain future realization taken into account).

• Federal and state statutes now protect divorced spouses against loss of health insurance coverage. (COBRA)
o Can continue participation for up to 36 mo. after divorce.

Laing v. Laing

• Trial court awarded husband his non-vested pension, and assigned it a value of $27K. The court awarded his wife offsetting
assets in a lump sum payment.

• Pension rights of a spouse are considered an asset of the marital estate subject to division regardless of whether they
are vested or non-vested.
o The general rule is that vested pensions and other related retirement benefits are assets of the marital estate subject
to division by the court.
o While the collection of the pension is contingent, such contingency should not preclude the nonworking spouse from
asserting an interest therein should the interest become vested.
o Courts should apply the reserved jurisdiction method of dividing the nonvested pension instead of the present value
approach.

• Present Value Approach: awards the nonemployee spouse a lump sum payment for his value in the non-vested pension.
o This places all financial jeopardy on the employee spouse in the event of forfeiture.

• Reserved Jurisdiction Method: court maintains jurisdiction over the distribution of the pension and orders the employee
spouse to tender a portion only of those payments actually received.
o Non-vested pension should not be included in the initial property division by the divorce court.
o If the pension rights vest, the nonworking spouse may then request judicial intervention for the equitable distribution
of the asset.

• Qualified Domestic Relations Order: middle man pays out the pension to both parties to reduce entanglement (prevents
problems associated with employed spouse not paying, not paying on time, etc.)

• When we reduce something to the present value, we need to consider (a) when the stream of payments will end and (b) the
interest rate over time.

McClary v. Thompson

• Husband argued that under TX community property law, the inception of title analysis should be used to determine the
character of a pension which the busband began to contribute to before marriage and which he contributed to earn throught
the marriage.
• Pensions are distinguished from other assets which are analyzed under the inception of title principle, such as real estate, on
the basis that the pension is employee compensation earned during the marriage.
• Benefits that accrue during the marriage are community property, and benefits earned before the marriage are premarital
separate property .

C. Social Security, Military and Other Pensions

Hisquierdo v. Hisquierdo

• Statutory provisions that prevent covered employees from assigning or alienating their pension rights were intended to
prevent courts from treating these rights are marital property.
• SCOTUS concluded that the anti-assignment and anti-alienation provisions are intended to ensure that the benefits actually
reach the beneficiary and that treating the benefits as divisible community property conflicts with this purpose.

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Military Benefits

• McCarty v. McCarty: Court held that states could not treat military retirement benefits as marital property, based on the
statutes' anti-assignment and anti-alienation classes and Congress's underlying purposes for creating military retirement
benefits.
• Uniformed Services Former Spouses' Protection Act: provides that each state's divorce courts may treat disposable military
retired pay or retainer pay according to the state law governing division of marital property .
o Disability pay is not divisible.
• Commonly, separation agreements ro court orders contain indemnity provisions, which are not considerd to violate the
SFSPA because the retiree is free to use any assets to satisfy the obligation.

Civil Service Pensions

• Civil Service Act allows treatment of these pensions as marital property divisible at divorce.

Social Security

• Most courts have held that SS benefits are not property ubject to division and that their value may not be considered in the
division of property. Some courts reach this conclusion based on the anti-assignment and anti-alienation provisions of the
SSA.
• Divorced spouses are entitled to receive SS benefits on the account of the divorced spouse if they were married for at least
ten years. The benefit payable to a divorced spouse of a covered worker does not reduce the benefit payable to the worker.
• If a divorced spouse worked and contributed enough to SS to be entitled to benefits independently, he or she must choose
between these independent benefits and those based on the employment of the former spouse. When he or she reaches age 62
if the former spouse is also at least 62, even though the latter is not yet collecting SS.
• A spouse who collects SS on the account of a former spouse must remain single to receive benefits.
• A person who has married and divorced more than once may draw benefits on the account of which ever former spouse will
provide the greatest benefits.
o More than one former spouse may be able to claim benefits on the account of the same earner.
• A divorced spouse may apply for dependency benefits

D. Qualified Domestic Relations Orders (QDRO)

• A divorce court may enter a QDRO, which directrs the pension plan administrator to pay a portion of an employee's benefits
to someone other than the employee.
o Can reqire that payment sto the nonemployee begin before the employee actually retires.
o Can also be used to effect payment of spousal or child support
o Nonemployees to whom these payments are made are called "alternate payees"
• 7 Requirements that an order must meet to be a QDRO:
o 1. Name and the last know mailing address of the participant and the name and mailing address of each alternate
payee;
o 2. The amount or percentage of the participant's benefits to be paid to each alternate payee or the manner in which
the amount or percentage is to be determined;
o The number of payments of the period to which the order applies;
o Each plan to which the order applies.
o The order may not require a plan to:
 Provide any type or form of benefit, or any option, not otherwise provided by the plan;
 Provide increased benefits
 Pay benefits to an alternate payee that must be paid to another alternate payee under a previous QDRO.
• Division of pensions through a QDRO does not violate the anti-assignment/anti-alienation requirements of ERISA.
o Payments to benefits to one other than the covered employee without a QDRO does violate these requirements.
• QDROs can also be used to divide IRC§403(b) tax-deferred annuities, which are often available to employees of in
universities and no-for-profit hospitals.

E. Personal Injury Awards, Disability Pay, and Similar Interests

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 • Holman v. Holman
o Mechanistic Approach: courts consider whether disability benefits have been specifically excepted from the
definition of marital property by statute. Disability benefits will be considered marital property unless there is a
statutory provision specifically excluding them from the marital estate.
 Should be considered marital prop because the policy premiums were paid with marital funds or the marital
estate acquired the benefits as a form of compensation for spouseal labor during the marriage, much like a
pension.
o Analytical Approach: focuses on the nature and purpose of the specific disability benefits at issue.
 Benefits which actually compensate for disability are nto classified as marital property because such
benefits are personal to the spouse who receives them and compensate for loss of good health and replace
lost earning capacity.
 Where the facts warrant, courts utilizing the analytical approach will separate the benefits into a retirement
component and a true disability component, with retirement component being classified as marital prop and
the disability component as separate prop
o ALI Approach: classifies such benefits according to the nature of the property they replace rather than by the source
of the funds used to acquire the benefit.
 Disability pay and workers compensation benefits are marital property to the extent they replace income or
benefits the recipient would have earned during the marriage but for the disability. So, marital property to
the extent they replace earning during the marriage, and separate prop to the extent they replace earnings
before or after the marriage.

• Marsh v. Marsh: court rejected the analytical approach to classification in favor of the "literal or mechanistic approach"—the
proceeds of a personal injury award was marital property because it was received during the marriage.

F. Degrees, Licenses, Jobs and Earning Capacity

Mahoney v. Mahoney

• Husband earned an MBA during the marriage, then promptly divorced his wife. She supported him throughout school to
some degree, lived in poverty, etc.

• A professional degree earned during marriage is not property requiring equitable distribution at divorce.
o A professional license or degree represents the opportunity to obtain future benefits upon the occurrence of highly
uncertain events.
o Valuing a professional degree in the hands of any particular individual would require an endless analysis amounting
to guesswork. Such unquantifiable and uncertain assets have never been subjected to equitable distribution.
o Equitable distribution of property is restricted to property acquired during marriage. Income derived from
professional services would be property acquired after marriage.
o Marriage is a partnership, and a degree holding spouse should not be permitted to take benefits of the marriage
without giving something in return.

• When an individual obtains a professional degree due to support given by their spouse with the expectation that both
parties will benefit, the supporting spouse should be reimbursed for the financial contributions he or she made to the
degree-holder spouse's successful professional training.

O'Brien v. O'Brien

• Husband filed for divorce, and his only asset was his newly acquired medical license.

• All property acquired during marriage, including a professional license, is marital property subject to equitable
distribution.

• Equitable distribution laws acknowledge marriage as a partnership, and assets earned during any marriage represent the
product of that partnership. Each spouse has a right to share in all marital assets.

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 • A supporting spouse is entitled to an equitable portion of the license holder's increased earning capacity, not a return
of funds advanced. Increased earning capacity may be difficult to determine, but the legislature has provided that a
supporting spouse's direct or indirect contributions must be recognized, considered, and rewarded.
o Some considerations for determining the distribution award include:
 Spousal need for immediate payment
 The license holder's ability to pay
 Legislative mandates
 Tax consequences
o After considering all of the evidence, the trial court should use its discretion to make the appropriate award.
o This does not require actual distribution of the license value. When possible, the trial court may distribute other
marital assets instead of distributing the value of the professional license.

Estin, Maintenance, Alimony and the Rehabilitation of Family Care

• At minimum, reimbursement remedies cove the actual costs of a partner's education and professional training: tuition, books,
and fees. Some remedies extend further to include payments for the educated partner's living expenses.
• Most courts specify that compensation is not appropriate for homemaking rather than financial support.
• In some jurisdictions, courts compute restitution award or reimbursement alimony far more boardly, including the lost
earnings of the spouse who was educated during the marriage. In others, courts have computed their awards based on the lost
opportunities of the spouse who worked instead of attending school.

IX. CHILD SUPPORT

A. The Prevailing Child Support Model

• Federal regulations provide that child support guidelines must take into consideration all earnings and income of the absent
parent, be based on specific descriptive and numeric criteria and result in a computation of the support obligation.

Williams, Guidelines for Setting Levels of Child Support Orders

• Flat Percentage Guidelines

o Sets child support as a percentage of obligor income, with the percentage varying according to the number of
children.
o Some percentage guidelines are based on gross income (before tax) while others are based on net-income (after
mandatory deductions).
o The child support obligation is not adjusted for the income of the custodial parent.
o Assumes that each parent will expend the designated proportion of income on the child, with the custodial parent's
proportion spent directly.
o No adjustment for other factors such as child care expenses, extraordinary medical expenses, or age of child.
• Incomes Shares Models
o Based upon the precept that the child should receive the same proportion of parental income that would have been
received if the parents lived together.
o Calculates child support as the share of each parent's income estimated to have been alloated to the child if the
parents and child were living in an intact household.
 Income of the parents is determined and added together.
 Child support obligation computed based on combined incomes.
 Total obligation is pro-rated between each parent based on their proportionate shares of income. The
obligor's computed obligation is payable as child support.
• Delaware Melson Formula
o Parents are entitled to keep sufficient income for their most basic needs to facilitate continued employment.
o Until the basic needs of children are met, parents should not be permitted to retain any more income than required to
provide the bare necessities for their own self-support.

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 o Where income is sufficient to cover the basic needs of the parents and all dependents, children are entitled to share
in any additional income so that they can benefit from the absent parent's higher standard of living.

B. Modification and Termination of Support

Foreseeable Changes in Circumstances

• Uniform Marriage and Divorce Act §316: to be a ground for modifying a spousal or child support order, a change of
circumstances must be "so substantial and continuing as to be unconscionable." Change that was foreseeable is not a ground
for modification.
• Federal legislation requires states to implement a regular review process that will ensure that child support orders are updated
at least every three years. That requirement effectively abrogates the traditional approach under which a child support order
could be modified only on the initiative of the party who proved a substantial change of circumstances.

Voluntary v. Involuntary Decreases in the Payor's Income

• Involuntary decreases, such as when the obligor is laid off from work, are generally treated as sufficient reason to decrease
support. Voluntary decreases, such as getting fired or quitting, are not.
• Some jurisdictions provide for imputed income only if it is proved that the parent diminished his or her income for the "bad
faith" purpose of minimizing child support.
• Where the obligor has the qualifications for jobs that are readily available, determining earning ability is not so difficult, but
the match between the obligor's skills and the requirements of available jobs decreases, the line between speculating and
legitimate imputation of income is harder to discern.
• When loss of income in involuntary because the obligor becomes disabled, the obligor's children may be eligible for Social
Security or other benefits. Most courts give the obligor a dollar-for-dollar credit for the benefits a child receives.

Deegan v. Deegan

• Husband and Wife divorced. Divorce decree provided that Husband would pay Wife $250/wk for alimony, as well as 1/3 of
his annual vacation pay and 1/3 of his pension. He was about to turn 62, and he decided to retire. Since he no longer would
have income from his job, he petitioned the court to cease paying alimony.
• A spouse may modify the support agreement due to a retirement only when the advantage to the retiring spouse
substantially outweighs the disadvantage to the payee spouse.
o Only when this is affirmative should the retirement be allowed and the alimony stopped.
o Where a payor spouse has substantial reasons for retiring and the effect on the payee spouse is minimal, then the
payor spouse should be allowed to retire and modify the support obligation.
o If the payor spouse simply want a new life and the payee spouse would become destitute without support, as in this
case, the payee spouse should prevail.

C. New Families—Spousal Support, Remarriage and Cohabitation

Peterson v. Peterson

• Divorce decree awarded Wife alimony from husband for the first seven years and then a lesser monthly payment for the next
ten years unless Wife remarried. She remarried within two years and the Husband stopped paying alimony. Wife sued,
arguing that the agreement was to pay alimony for seven years regardless of her marital status, and that the alimony award
was part of her property settlement, and that her new husband's inability to support her constitutes extraordinary
circumstances under which alimony should continue.
• Proof that the spouse receiving support payments has remarried establishes a prima facie cases requiring the court to
terminate the support payments unless the recipient can show extraordinary circumstances that justify their
continuation.
o There should be an express agreement providing for alimony to continue despite a spouse's remarriage.

ALI Family Dissolution Principles §5.07

• Periodic payments to a former spouse should automatically terminate at the obligee's remarriage unless the original decree
provides otherwise or the court makes written findings establishing that termination of the award would work a substantial
injustice because of facts not present in most cases.
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 X. CHILD CUSTODY

A. The Best Interests Standard

• A child's best interests dictate to whom custody should be granted, even if inconsistent with the parental preference
presumption.
• Judge has discretion.
• The US Constitution recognizes "fit" parents as having a fundamental liberty interest in the care, custody, and management of
their children, limiting the court's discretion to award custody or visitation to others.

Painter v. Bannister

• Child went to live with his grandparents after his mother died at the request of his father. 1.5 years later Painter remarried and
requested to have his son back from the Bannisters. They refused and Painter sued for custody.
• A child's best interests dictate to whom custody should be granted, even if inconsistent with the parental preference
presumption.
o An eminent child psychologist testified that returning the child to Painter would have a disrupting and disturbing
effect on the child, and that Mark's best interests would be served if he remained with the Bannisters.
o This conclusion was supported by the court's observations as to the differing lifestyles and beliefs of Painter and the
Bannisters.
o The child's best interests outweighed the parental presumption, the mother's designation as guardian by the child's
mother in her will, and concerns with the age of the Bannisters and the strain that raising a child would place on
them.
• A number of jurisdictions require either a showing of parental unfitness or detriment to the child to overcome the
presumption that parents will act in their children's best interests.
• Best interest factors
o Parental preference – this works only if the parents agree
 This is only a presumption
o Stability of the child's life
o Links with the community
o Stability of the home environment provided by each parent
• Under the Constitution, “fit” parents have a fundamental liberty interest in the care, custody, and management of their
children. Troxel v. Granville (2000)
o The Constitutional presumption is that a fit parent is acting in the best interest of the child.

C. The Primary Caretaker

1. A lot of courts turn to this factor as it is easier to consider than the very vague “best interest” standard.
2. Caretaking is not the same as parenting. Parenting is a broader concept and includes things like providing for the mental
development of the child, the educational development, etc. Who does the day-to-day of getting the kid up, feeding them,
disciplining them, etc.? Courts believe who the primary caretaker is indicates—stability, character, inclination, healthy
environment, emotional maturity, psychological stability. The assumption is that the primary caretaker is the parent who will
do the most for a child.
a. It is possible that parent could be primary caregiver and yet be unfit (mother works in a strip joint; father operates
porno business out of his home, etc.).
3. There is a presumption that the parent providing care should continue as the caretaker
a. This means the primary caretaker will likely retain custody unless it is rebutted in some way (unfit parent).
i. This is because this person already has experiences taking care of the child
ii. Leaving the primary caretaker as the custodian maintains stability for the child.
4. In determining who the “primary caretaker” is, consider the following factors from Garska v. McCoy (W. Va. 1981):
a. Preparing and planning of meals;
b. Bathing, grooming, and dressing;

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 c. Purchasing, cleaning, and care of clothes;
d. Medical care;
e. Arranging for social interaction among peers;
f. Arranging alternative care;
g. Putting child to bed at night, attending to child in the middle of the night; waking child in the morning;
h. Disciplining the child;
i. Educating the child;
j. Teaching elementary skills.
5. If there is no primary caretaker mothers usually get custody because the court will look at who spent the most time with the
child, and this is usually the mother.
a. This is essentially achieving the same result as the “maternal preference” which is unconstitutional under the Equal
Protection Clause.
b. At least this gives fathers a shot at custody if the father spends the most time and resources with/on the child.

Burchard v. Garay – Primary Caretaker case

• A paternity and support action was brought by Burchard and established that Garay was the father of William Jr. When
Garay sought visitation rights, Burchard refused and filed a petition for exclusive custody of the child. The trial court
awarded custody to Garay on the grounds that he was better able to support the child financially, he was remarried and thus
better able to provide the child with satisfactory care, and he was willing to let Burchard visit the child.
• A court deciding the issue of custody cannot base its decision upon the relative economic position of the parties or
upon an assumption tha the care afforded by a single, working parent is unsatisfactory.
o The custody decision must be based upon an assessment of the emotional bonds between the parents and child and a
determination of how best to provide continuity of attention, nurturing, and care.
o Child support payments can be used to ensure that the best fit parent can properly support a child.
o Court says the fact that mother is the primary caretaker overrides all of these other factors supporting the father.
 Thus, we essentially have a presumption for primary caretaker.
 Pick the better parent not the richer parent.
• If the poorer parent is chosen as the caretaker then the richer parent can provide child support.
o There is no support for the assumption that working mothers cannot properly care for a child.

c. Joint Custody
i. Today, joint custody follows from a deep conviction that children benefit from continuing contact with
both parents.
ii. Until relatively recently, joint custody arrangements were disfavored. Why? Continued contacts between
parents and lack of consistency for the children.
iii. Taylor v. Taylor (1986)—this case represents judicial approval of joint custody awards in certain situations.
1. Joint Legal Custody v. Joint Physical Custody:
a. Legal Custody—carries with it the right and obligation to make long range decisions
involving education, religious training, discipline, medical care, and other matters of major
significance concerning the child’s life and welfare. With joint legal custody, both parents have an
equal voice in making those decisions.
b. Physical Custody—right an obligation to provide a home for the child and to make the
day-to-day decisions required during the time the child is actually with the parent having such custody.
Joint physical custody is really “shared” or “divided” custody. Does not necessarily have to be 50/50.
i. Where does the child live and who takes care of their daily needs?
2. Factors for Courts to consider in awarding joint legal custody:
a. Capacity of parents to communicate and to reach shared decisions affecting the child’s
welfare;
b. Willingness of parents to share custody;
c. Preference of child;
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 d. Potential disruption of child’s social and school life;
e. Demands of parental employment;
f. Age and number of children;
g. Sincerity of parents’ request;
h. Financial status of parents;
i. Impact on state or federal assistance;
j. Benefit to parents.
iv. NOTES:
1. “Split Physical Custody”—each parent has physical care of at least one child. Many state
recognize a presumption that siblings should not be separated on the ground that such an arrangement “deprives
children of the benefit of constant association with one another.”
2. ALI approach—moving away from the use of labels (“sole custody,” “joint custody”) to allocate
decision-making power in favor of more detailed plans.
v. Lombardo v. Lombardo (1993) – joint legal custody case - (parties divorce and awarded joint legal
custody. D has physical custody and P has visitation rights. One of their children qualified for a gifted program and the
parties disagree over whether he should enroll.)
1. When parents with joint custody cannot agree on important matters affecting the welfare of their
child, the court must determine the issue in the best interest of the child.
2. This court says the lower court erred in determining that the parent who is the primary physical
custodian has the authority to resolve any disputes concerning the important decisions affecting the welfare of
the children.
vi. NOTES:
1. Discuss Brzozowski v. Brzozowski, girl with nose surgery, where court expresses concerns over
getting involved in these types of family disputes and the potential onslaught of judicial involvement that could
arise.
d. Judging Parenthood: What Makes Parents Unfit?
i. If a custody decision involves choosing between fit parents, value judgments are inevitable.
ii. Historically, courts often considered the factors that determined fault-based divorce (adultery,
abandonment, etc.) as factors in the subsequent custody award.
iii. What are the positive aspects of one parent versus the other parent (assuming both are fit): We say primary
caregiver is presumptively going to be awarded custody. Primary caretaking is an abbreviated notion of best interest
factors (character, fitness, inclination, etc. environmental (emotional, physical, spiritual, etc.)). Often times, both parents
are fit, but one parent is more fit than the other. Under the best interest standard, this is relevant.
iv. It is the law in pretty much every state that there are certain kinds of conduct that is per se evidence
(without proof of any effect or impact) of unfitness. This would justify the other parent being awarded custody. This is
not statutory, just case law. They include: (1) habitual drunkenness; (2) substance abuse; (3) nomadic
character/association with known criminals; (4) psychiatric illness (esp. if suicidal tendencies); (5) domestic violence
(see S.C. Code 20-7-1530 (we say domestic violence is a mandatory factor that courts must consider)). No specific
proof of effect on the child is required. This is an important difference between this and other less clear arguments of
unfitness.
1. 2 South Carolina Cases:
a. Woman working as a stripper at night to make money is not per se unfit.
b. Father who has custody is running porno business out of his basement. Court says he is
unfit.
v. Below are the less clear arguments for unfitness. In most states, you need to show that the questionable
conduct rises to a level that there is a relatively strong nexus between the conduct and an adverse impact on the child.
vi. Sexual Activity:
1. Taylor v. Taylor (2003) (couple divorces, mother has custody, and known lesbian moves into the
mother’s house.)
a. Rule—Sexual activity alone is NOT a per se disqualifier making a parent unfit. You
must prove that there is a nexus between the activity and an adverse impact on the child. It is not
enough that there might be some social stigma that the child experiences as a result of the relationship.
i. How is this relationship impacting the children?
1. Child’s friends treat him differently;
2. Child has had negative behavior changes;
a. Need expert testimony for this.
3. Custodial parent is neglecting strongly felt community values.

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 4. The parent’s behavior is “immoral” and this is negatively effecting the
child
ii. What is the nexus between what the parent is doing and the interests of the
child?
1. The parent’s conduct must HARM the child.
b. Court says father has not shown a “material change in circumstances.”
vii. Race:
1. Palmore v. Sidoti (1984) (lower court took custody away from mother because she married a
person of a different race. Court said it is certain that the child will face social stigmatization from the
situation.)
a. Court says that the reality of 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.
b. Removing child because of the potential effects of parents being biracial violates 14th
amendment.
viii. Palmore v. Sidotimother, white, has custody of child. She marries black man. The child father who is
white, wants custody of child asserting changed conditions that mother was cohabitating w/ a black man.
Holding: US Sup Ct. said that any decision that is based upon race you have to some a compelling interest
and so to protect the best interest of the child is a compelling interest upon the state. The court said that you
are not able to use race to make a decision. Ct said that race could not interfere with the custody. This is an
idea that we are not going to consider the prejudices of the people on the outside. This idea was also in the
aforementioned lesbian case, where ct said that if the child is not in any danger they are not going to change
custody arrangement. This is a narrow decision in terms of the basing a custody decision on the basis of
race
ix. Religion:
1. In South Carolina, we have court decisions that essentially say that spiritual environment is a best
interest factor. It doesn’t matter what the religion is, it is typically considered a positive factor.
2. We have a statute (20-7-1520) that says that if the parent and child are of the same religious belief,
that is a factor that can be taken into consideration for custody considerations.
3. It isn’t clear whether these cases or the statute would pass constitutional muster. The US
Constitution has an important role to play here. It prohibits discrimination based on religion or preferring
religion of any form.
a. Lemon—403 US 602—cases or statutes that invoke religion are valid only if (1) secular
purpose, (2) primary effect is not advancing nor inhibiting religion, and (3) it doesn’t promote further
government entanglement into religious issues.
4. Shelley v. Westbrooke (1817)—Court denies custody to father who is an atheist after couple
divorces and custodial mother dies. Court considers his beliefs immoral.
5. In re Marriage of Hadeen (1980) (mother is a member of a fundamentalist Christian sect that
preaches strict discipline, etc. Can these religious acts constitute a determinative factor in award of custody?)
a. religious acts may constitute a determinative factor in a custody award if there is a
reasonable and substantial likelihood of immediate or future impairment to the mental health or
physical safety of the a child.
b. the power of a parent is subject to limitation, even where the 1st amendment free exercise
clause is involved, if it appears that parental decisions will jeopardize the health or safety of the child
or have potential for significant social burdens.
c. Court looked to Wisconsin v. Yoder, which tried to strike a balance between protecting
parent’s religious belief and negative impact on child’s spiritual, mental and physical well being.
d. In re Marriage of Hadeenmother, belongs to fundamentalism Christian group that
believes you can beat the kids. Father and the mother were estranged. The mother beat kids w/ ping-
pong bats. She does not talk to one of the children. Holding: the best interest of the child should
always be considered, so members of any religion should raise their children until they cross the line of
abusing the children and doing something that is not in the best interest of the child. The lower court
ordered the custody to father, but the app ct said that the kids are getting along fine w/ the mother.
They said that the court was taking the kids away b/c they don’t like the religion
a. Diamond thinks that this is a peculiar holding from the court.
i. There is a lot of pressure of cts not to let religion get involved in custody
situation

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 b. Kendall Note Casefundamentalist father and orthodox Jew mother. The father thought
that anyone that did not share his religion was going to die. Holding: the court state that
the father was prohibited from bringing the children to church and making them think
badly about their mother’s religion. The court stated that they will restrict the father’s
ability to see the children if his religion would pose some harm upon the children.
6. NOTES:
a. Medical Care Cases—courts even more uncomfortable with this issue when one parent
refuses medical treatment because of a religious belief, if one parent is opposed to medical treatment
that is not enough because there no current or immediate harm, but the court retains jurisdiction to
order medical treatment if petitioned. See Osier v. Osier (1980).
7. SC – Poutain v. Poutain – religious preferences of a child is one more factor to take into account.
8. Beliefs themselves can typically not be a factor, but actions taken on account of beliefs can.
x. Spouse Abuse
1. Treated differently in different states.
2. Mass—spousal abuse creates a presumption of unfitness. Must prove by a preponderance of the
evidence that there was abuse.
a. Case in book challenges this standard of proof? Isn’t there a possibility for false claims if
this low standard is used? Massachusetts says it is appropriate.
3. Some other states require clear and convincing evidence.
4. South Carolina doesn’t have a presumption of unfitness. Our statute, 20-7-1530, simply says that
this is something that the court MUST consider in making a custody determination.
xi. Unfriendly Co-parenting:
1. Renaud v. Renaud (1998) (Mother and father separate. Mother has custody of the child and makes
baseless allegations of abuse against the father. She also speaks negatively of the father in front of the child and
is damaging the father-child relationship.)
a. Court says that a child’s best interests are plainly furthered by nurturing the child’s
relationship with both parents, and a sustained course of conduct by one parent designed to interfere in
the child’s relationship with the other casts serious doubt upon the fitness of the offending party to be
the custodial parent.
b. But, evidence of alienation of affection does not automatically preclude the offending
parent from obtaining custody—the best interest of the child is still the overriding consideration.
c. Have to look at the degree of the conduct and determine best interest of the child.
d. Court says here, it isn’t serious enough to award custody to father.
2. NOTES:
a. Many states have a custody preference for the parent who will facilitate the child’s
continuing contact with both parents.

Modification of Custody and Visitation Orders

a. State ex rel. Johnson v. Bailparents of child were unmarried. Mother had physical custody of child from birth.
Father used to visit until he threatened mother and her family. Mother then relocated several times and father found
where she was. Mother then relocated to Cal unbeknownst to father. Father filed order to est. visitation right but he
did not know where the child was, so he filed another order seeking legal custody of child, which was granted. The
father found mother who was charged w/ 2nd degree custodial interference but the mother retained physical custody
of child. She then filed motion to modified order seeking legal custody of child which was granted. Holding: court
held that circumstances had changed because of the child's unfamiliarity with the father. Further, the evidence
showed that it was in the child's best interest to continue living with the mother notwithstanding her illegal conduct.
Finally, when determining custody in a modification proceeding, a court was to consider a parent's "conduct" only if
that conduct was causing or could cause emotional or physical damage to the child.
i. Test court uses to know whether the modify a custody arrangement
1. Changed circumstances of either the moving party or legal custodian
a. This could be something like the mother is working 18 jobs and is not available to take
care of the child like she was before.
2. In light of all evidence it would be in the best interest of the child to change custody from legal
custodian to the moving party.

II. Property Division and Spousal Support (CHAPTER 6)

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B. Introduction
a. Two basic division
i. Property division
ii. Spousal supportalso called alimony or maintenance
1. NY provides an opt out provision that you can make an arrangement. NY has a concern w/ the weaker
spouse w/ less money
2. The extent to which the state provides something and the extend to which you can opt out is due to
what the state provides
C. Historical Justification of and Criteria for Economic Awards
a. People did not get divorce and so there were no property distribution. Even if there was a divorce, who ever owns the
property during the marriage owned it after a divorce. This coincides w/ the modern regime of title ownership. The
obligation of support continued after the divorce. This was called alimony (other money) instead of support. It became
clear that this was a system that was not fair. Fault divorce, the title theory, alimony and lifetime support held dominant
sway until the 21st century
i. The fault theory was used as grounds for divorce and so the spouse who was at fault would normally pay
alimony and lose custody of the children. However, as fault divorce turned into consensual divorce the presence
or absence of formal grounds became bargaining tools used to shape the economic consequences
b. CL states distinct from the community property state (states settled by the Spanish in the southwestern part of the US)
had a different way to distribute property in a marriage as fair and equitableequitable distribution. There was
definition for fair and equitable but it was about the values that you assign to fair and equitable. Alimony is a lifetime
thing; so the idea was that people wanted to be independent and so they wanted to split the pot. The idea was that one
person might earn the money and the other might provide other things that are domestic in nature
i. The problem is that things that are split equitably does not meant that there is anything there to split
c. In an equitable distribution you want to ask about future earning power of the parties when the parties split. Particularly
you want to inquire about the future earning power for the person who brings in more of the money
D. Property Division at divorce
a. Title based distributioncourts have little or no express discretion over property division, for the governing principles is
that property is awarded to the spouses as they owned it during the marriage. Thus distribution at divorce depends on the
principles of property ownership.
i. In a CL property jurisdiction using a pure title system, the spouse whose name property was titled would
receive it at divorce, subject to any claims of the other spouse based on the equitable ownership principles
1. Today no CL property state relies on title-based distribution
ii. In a community property jurisdiction using a pure title system would award separate property to the owner and
divide the community property equally
b. Pure Equitable distribution judge has discretion to divide all property of both spouses as is “just and proper” or
through some equivalent formula. In a state that mandates equitable distribution of all property, which spouse owned
property legally/ equitably during marriage may be relevant but is not determinative of who will get it at divorce. in
some of these states; however, property is still characterized as marital/separate and only marital property is divided
c. Equitable distribution or Marital or Community Propertythis systems gives judges more discretion over property
division at divorce than does a title system, but less than an equitable distribution system and it is the most commonly
used in the US.
i. In most community property states equitable rather than equal division of community property is mandated, and
these states also permit equitable distribution of separate property under limited circumstances
ii. Most CL property states have gone to a form of deferred marital property. Under this system, as long as the
marriage lasts, each spouse owns and manages assets that he or she brings into or acquires during the marriage.
But when the marriage ends, the assets are shared as if they had been acquired in a community property state
d. What are Examples of Fairness in the Context of Property Division?
i. Contribution to the marriage. People make different contributions and they should take different amounts out.
But it is difficult to come up with percentages.
1. Corporate wife example
2. Domestic work to free him up to work.
ii. Expectation of continued status.
iii. Compensation/rehabilitation
iv. Partnership
1. Partners should split the marital property 50-50.
2. Discourages opportunistic behavior and decisions benefit the marriage, not just the one.

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 v. Need
1. What does someone need to survive after marriage?
2. Why should one spouse provide for another spouse’s need after divorce?
vi. Fault
1. Should the spouse at fault be penalized for causing the marriage to fail?
a. This is not used much as a rationale.
e. HYPOS
i. Please consider the two divorcing couples described below. What would be "fair" in terms of alimony and/or
the division of property for these two couples? What concepts or principles help define fairness? You must be
prepared to discuss your answer in class.
1. Jack and Jill were married for 15 years, but are divorcing because the husband has fallen in love with
someone else. By agreement, the Wife will have custody of the couple's four children, including a
newborn. He makes $50k a year driving a truck; she makes $4,500 by taking in other people's children
for daycare. Assuming they have not much property to divide except a modest house, what kind of
property/alimony settlement should Jill get? You must figure out not only how much alimony, but for
how long.
a. Contribution
b. Need
i. This woman is going to need a lot of financial support
2. Lorna and Gary Wendt were married for 31 years before Gary left her for an older woman. He is a
wildly successful corporate executive who has 100 million dollars in assets and earns another 2 million
per year. The couple's children are grown and out of the house. Lorna has not worked since her first
child was born 28 years ago. She has, however, been the consummate "corporate wife," and supported
her husband's career in a variety of tangible and intangible ways. What is a fair distribution of property
and/or fair assessment of alimony here?
a. Contribution
i. She was the corporate wife and sacrificed so the husband could make a lot of money.
b. Expectation of continued status
i. The wife will expect to live like a queen post-marriage.
c. Compensation/rehabilitation
i. The wife has never worked and could not possibly have a chance at becoming a big
shot like the husband.
ii. Essentially compensating for lost earning opportunities
f. How is Property held during marriage?
i. There are jurisdictions where husband & wife hold property separately except for those they hold jointly
1. Marital property is property acquired during the marriage except gift and things that are acquired
outside of the marriage
ii. There are other jurisdiction in which they hold everything together unless they explicitly decide to hold property
separately
1. In a separate property jurisdiction everyone took their own stuff except claims to equitable ownership
iii. Some things have title. To say that the property is owed in common is to say what happens at the time of
dissolution and not what happens in the marriage
iv. There is nothing in the equitable distribution scheme that protects the property within the ongoing marriage
1. CL states changed over to equitable distribution
2. The title decides who owns the property and while they are married, the title still tells who owns the
property. At divorce the court equitable distribute some of the property to each spouse, so some marital
and separate property get equitable distributed. In some jurisdiction some court’s reach what is
designated as separate property if it is fair for an equitable distribution
v. In community property, everyone owns gets his separate property and ½ of the community. This is the classic
situation and a small number of states still do this. The community property states don’t split things 50/50 but
equitably, so today they are not that much different from equitable jurisdiction states
vi. There is a division that is called dual property division and single property equitable distribution states. The
question is whether the courts can get property for equitable distribution
1. In dual division they can only get divide of marital property
2. Single property equitable distributionOnly division of non-martial property but only if there is...
g. UMDA page 399
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 i. (A) CL property states all property statute: the court can equitable distributed all the property however and
whenever acquired. There is no distinction btw marital and non marital property
ii. (B) Community Property statesseparate property remains separately and community property is divided
equitable on a number of factors:
1. Contribution of each spouse to acquisition of the marital property including contribution of a spouse as
homemaker
2. Value of the property set apart to each spouse
3. Duration of the marriage
4. Economic circumstance of each spouse when the division of property is to become effective including
the appropriateness of giving the family home to the person who is caring fro the children
h. NY Domestic Relations Law (In the supplement)
i. § 236
1. Part APrior action and proceeding
a. Alimony temporary and permanent
i. In any action or proceeding brought (1) during the lifetime of both parties to the
marriage to annul a marriage or declare the nullity of a void marriage, or (2) for a
separation, or (3) for a divorce, the court may direct either spouse to provide suitably
for the support of the other as, in the court`s discretion, justice requires, having
regard to the length of time of the marriage, the ability of each spouse to be self
supporting, the circumstances of the case and of the respective parties.
1. This is the law as it existed in the history
2. Part BNew Actions or Proceeding. (Is the law that exists now since the 70s. So any actions are dealt
w/ under part B)
a. Definitions
i. Maintenancethe term alimony is not used anymore it is now called maintenance.
1. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivision six of this part, to be paid at fixed intervals for
a definite or indefinite period of time, but an award of maintenance shall
terminate upon the death of either party or upon the recipient`s valid or
invalid marriage, or upon modification pursuant to paragraph (b) of
subdivision nine of section two hundred thirty-six of this part or section two
hundred forty-eight of this chapter.
a. The court is entitled to award lifetime maintenance. However you
don’t want lifetime maintenance to tie the ex-spouses together
b. Maintenance has some characteristic of alimony in that it stops at
death, remarriage. It can also be modified
ii. Distribution Award/Property Distribution
1. The term "distributive award" shall mean payments provided for in a valid
agreement between the parties or awarded by the court, in lieu of or to
supplement, facilitate or effectuate the division or distribution of property
where authorized in a matrimonial action, and payable either in a lump sum
or over a period of time in fixed amounts. Distributive awards shall not
include payments which are treated as ordinary income to the recipient
under the provisions of the US IRCode.
a. This should be provided for in writing in an agreement. if people
own stuff (property) this might not be enough to be equitable so
the money can also be divided up btw the parties
iii. Marital property is everything that is not marital property.
1. The term "marital property" shall mean all property acquired by either or
both spouses during the marriage and before the execution of a separation
agreement or the commencement of a matrimonial action, regardless of the
form in which title is held, except as otherwise provided in agreement
pursuant to subdivision three of this part. Mari- tal property shall not
include separate property as hereinafter defined. The term separate property
shall mean:

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 a. property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse;
b. compensation for personal injuries
c. property acquired in exchange for or the increase in value of
separate property, except to the extent that such appreciation is due
in part to the contributions or efforts of the other spouse;
d. property described as separate property by written agreement of
the parties pursuant to subdivision three of this part.
2. If property is separate property then there should be an agreement before
there is divorce b/c you cannot rely on people in a divorce
b. If you are managing your spouses money and it goes up in value one can argue that increase
was due to the spouse and that it should be marital property
c. Agreements
i. You can have a prenuptial or a property agreement or a property distribution in the
marriage in the event that the marriage ended
E. Property Division at Divorce
a. The meaning of equitable distribution
i. In re Matter of the Marriage of Piersonhusband and wife got divorce. They both had separate income and
they already divided their personal property. They only wanted equitable distribution of four items of real
property. The wife moved out of the family home which husband kept. She then bought a home on Kathy Street
which she later left and bought a condo. Wife’s father died and left her inheritance. Holding: the court stated
that accomplish the broader goal of dissolution of property distribution may be disturbed to accommodate
uneven distribution. The court states that this is due to social objectives as well as financial ones. Court did not
divide marital property equal b/c of the provision for need dominated. Husband’s need for property dominated
that of the wife’s so that is why the court gave him more property Court paid attention to the practicality of the
division of the property through sale.
1. The court did not want to keep the parties tied up and that is they the court wanted to divide up the
property so that the parties can go free of each other. Therefore, court thought that the parties have to
separate the property as much as they can, even though the court thought that the wife should keep
some connection w/ the husband in terms of having a lien on the house.
a. The presumption is that all property that is acquired during marriage is marital property
except it can be rebutted if there is a showing that it is separate property
2. Note 3 (page 407): the note talks about the difference btw the presumption of equal division and equal
contribution of marital property/assets. Some courts like the court in Pierson, did not do an equal
division of marital property but a division based on need; however when court’s deviate from equal
division, they tended to give greater weight to the parties relative contributions to the acquisition of the
property than to their need.
b. Characterization of Property as Separate Property or Marital Property
i. Separate property can change its character. Separate property can become marital property.
1. The issue here is the intent of the parties. Presumption of what kind of property can be rebutted
ii. One form of transmuting property is a change in title. What should a ct dow/ a change in title?
1. Some courts say that change in title automatically transmutes property. Some states say that if you
change title into one spouses name its separate property but others say that is marital property
a. E.g. If H gives separate property to W, does this property become separate property of W or
marital property? W could say it is a gift of which a gift is always separate property
2. Some states say that transmutation is proved by a change in title but this can be disproved
3. In some states, there is the idea of commingling. If you take separate property and you commingle it w/
marital property it is transmuted into marital property
4. Some states say that if there is a dual interest in property, but you cannot trace-out the separate
property, then all property becomes marital propertythis is the most common form of property
5. Some states that the increase in passive appreciation (changing economic conditions)of property is
separate property. However, if increase is active (financial or managerial contributions of one of
spouses or either or both parties perform substantial services) then the increase worth of property is
marital property.
6. Some states say that income during the time that the parties are married is all marital property

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 7. Some states say that gifts from outside people is whatever the donor intends it to be. So if the father
buys a house for the daughter and the name on the title is of both parties. Then the question would be
did the father intend the property to be solely for his daughter or both parties.
iii. O’Brien v. O’BrienWife and husband getting a divorce. Π wanted an equitable distribution of property.
During the marriage, Δ received inheritance from her father’s estate and put it in an investment account, she
also put $4000+ of marital assets into account, but then they withdrew over $38000+ from account. During this
time Δ received money from her aunt Mabel. Aunt Mabel also sent money to π noting in a letter that the money
was intended for Δ b/c under tax law aunt could only give $20000 each. On the advice of her broker both
husband and wife’s name were on the investment account Within the period of marriage the statute requires
that the property is marital property unless there were gifts. Holding: the court address several claims by the
π/husband to find that the property was separate property of Δ/wife.
1. Issue 1: π alleged that b/c marital funds was commingled w/ inherited funds (separate property) this
transmuted investment account from separate property to marital property
a. Court rejected ILL doctrine of transmutation that commingling of marital property creates a
rebuttable presumption that all property has been transmuted. The court stated that mere
commingling of marital funds w/ separate funds alone does not automatically transmute the
separate property into martial property
i. There is an idea here that when there is a small amt of marital funds compared to
separate funds, separate funds doesn’t automatically transmute into maritalfunds
2. Issue 2: π claims that Δ failed to trace-out marital funds deposited in investment account
a. Court stated that even though investment account started during marriage, the original deposit
in the account was Δ separate property from her father’s estate. The court adds that b/c money
was withdrawn from the account it is safe to assume that marital funds was in that withdrawn
amt which left only separate property.
3. Issue 3: π said that he actively participated in managing of investment account which led to increase in
value of account
a. Court states that they did not find any action of spouses in meeting w/ the broker which rose
to the level of substantial activity in investment account. Court said that π need to show
substantial services beyond just having his name on acct and meeting w/ broker
4. Issue 4: π said that TC erred in b/c 2 $10000 checks were his and not Δ
a. Court stated that Aunt Mabel wrote those checks to π as a conduit for a gift to Δ. Court stated
that funds were not intended for π’s bounty. Therefore checks did not belong to π but was
separate property of Δ
c. Dividing Debts
i. Way in which debts can be divided
1. Equitable division of alltreat as distinct issues the division of assts and the division of debts,
dividing each “equitably”
a. relevant facts include ability to pay, which spouse was the principal financial manager or
incurred the debts, and so forth
b. with this approach you are treating debts like they are marital property
i. E.g. you can give the principal asset to the wife b/c she needs it for the kids. Give the
debts to the husband and then split everything else, which is 10,000 each. So wife
would get 90,000 and the husband gets 10,000 and then all debts
1. The justification for giving wife house has to do w/ children. What about
justification of giving debts to husband? Husband is breadwinner and he has
more ability to pay debts and b/c he is the primary source of income for the
family. Also in NY, they include the future earning capacity of a person. So
the husband in 20 years might earn more and the house will appreciate in
value so in 20 yrs the parties will be equal
2. Divide debts proportionately to division of assetstreat division of assts and debts as distinct issues
but allocate responsibility for debts in the same proportion that assets are awarded
3. Total netting outfrom the total value of the divisible assets subtract the total amount of divisible
debts. Divide the remainder if any
a. Court are not likely to do this b/c sometimes the house has to be sold to get asset (money)
which would uproot children

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 4. Netting out specific assetswhen an asset is specifically encumbered value the asset at the difference
btw its market value and the debt
ii. One of the things you do w/ debt is characterize whether it is marital debt or separate debt
1. Marital debta marital debts for the purposes of dividing property is a debt incurred for the joint use
of both spouses.
a. Bank does not care how debt is divided as they will come after person whose name is on the
piece of paper
b. Mortgage, money you borrow money to pay taxes, construction loans are marital debt
c. Diamond think that medical expenses should be marital debt except when they are done for
the purpose of them be classified as such before immediate filing of divorce which can be
economic waste
d. Educational debtyou are acquiring an asset that would be marital income so the cost of
getting this asset will be a marital expense
2. Equitable distribution is that you split what is in the marital pot, but if there is nothing in the pot or
one-person uses more of money than other then what do we do? If one party wastes the asset then you
can compensate the other by giving him a larger share of the pot. There is this idea that there needs to
be management of money in an intact marriage. There should be restriction of what people can do w/
marital money. All decision in a marriage can be marital decisions and the consequence from these
decision are the joint consequences of the parties
iii. Geldmeier v. GeldmeierH and W had two kids and were getting a divorce. H was a bottler and W got her
masters before marriage dissolved but she could not get any work. H alleges that the TC divided marital
property and debts is a disproportionate way in which he gets more of the debts and the wife gets more marital
assets. Holding: the court stated that the reason why H has assumed more of the debts is that b/c the children
are going to stay w/ W they don’t want to the kids to be wrenched from the security of their home if W is not
able to pay all the debts. Court stated that evidence shows that H at the time possessed the ability to assume the
debt obligations. Pursuant to the statute that says that court shall divide the marital property in such proportion
as the court deems just after considering all relevant factors. The court said that this does not mean that the
property should be divided up equally by equitable and here it is more equitable for W to get more of the
marital property and less debt so the children can be provided for.
F. Spousal Support at Divorce
a. Changing attitudes toward spousal support in the no-fault era
i. During the 60s and 70s there was a disfavor of spousal awards. During the 70s and 80s a number of legislatures
enacted statutes limiting the duration of spousal support awards. For example the Oregon statute said that if
after 10 yrs of spousal support payment the recipient has not make a reasonable effort to become financially
self-supporting, the payor may petition the court to terminate support. During the 80s the sentiment began to
shift when courts and legislature began to realize the poor economic position of divorced women and their
children. Realizing that divorced people did not have enough property, they consider the dividing divorce
income btw spouses and some courts and legislature have rejected limited awards or even have created
indefinite awards is some circumstance
1. Awards for indefinite lifetime support are coming back into favor. Esp. when you have wages earners
who cannot get back onto the job market
a. The idea was that marriage was a lifetime commitment and divorce was a transformation of
marriage. Therefore on divorce he still had an obligation to support the wife until she dies, he
dies or she gets remarried
b. Applying the changing views
i. Uniform Marriage and Divorce Act
1. § 308
a. In a proceeding for dissolution of marriage…the court may grant maintenance order for either
spouse only if it finds that the spouse seeking maintenance:
i. Lack sufficient property provide for reasonable needs
1. Does that mean the property have to generate certain income or that if you
sell the property you can support yourself?
a. Is it income or capital
ii. Unable to support himself through appropriate employment or is the custodian of
child whose condition or circumstance make it appropriate that the custodian not be
required to seek employment outside the home

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 1. What is appropriate employment and at what age should the custodian be
able to leave the child at home or school to go an work
b. The maintenance order shall be in amts and for period of time the court deems just. w/o
regard to marital misconduct and after considering all relevant facts including:
i. Financial resources of party seeking maintenance
ii. The time necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment
1. This is the rehabilitative alimony prediction
iii. The standard of living est. during marriage
iv. The duration of marriage
v. The age and physical and emotional condition of the spouse seeking maintenance
and
vi. The ability of the spouse from whom maintenance is sought to meet his needs while
meeting those of the spouse seeking maintenance
2. Note: all these factors are NY law except item “A” in NY is “only” and not “only if” like
aforementioned
ii. Turner v. Turner H and W got divorce, they had 3 children one whom emancipated. W attended college and
has had part-time employment including being a read teacher. W is getting her reading teacher certificate. W
only makes $1200 a yr. When house is sold she will get at least $80000. H is a civil engineer who makes
$31000 a yr. but one of his legs got amputated and he fears that his other might be amputated preventing him
from work. Holding: the court stated that W should be entitled to rehabilitative alimony of $50 until her house
is sold and H will still pay child support and w/ her job the wife should be able to maintain herself.
1. NJ court believes in rehabilitative alimony, which is where spouse receive alimony payments from
other spouse until he/she is able to support himself/herself. However, court said rehabilitative alimony
doesn’t have to curtail permanent alimony payments if spouse has a job were she still cannot support
herself.
iii. In re the Marriage of Larocque Long marriage, middle age people, wife hasn’t worked very much and she
has old degrees. Holding: the TC used a rehabilitative alimony approach to enable W to get her degree back in
order so she can start to earn a living. The appellate court reversed. They said that the W did not have to
consume the resources as property. The court said that she should not have to live on this property. The court
said that she should get a maintenance of award that would maintain her lifestyle before divorce or enough
maintenance that will not make her live at a subsistence level. The court believe that both standard of living of
the parties should be as close together meaning that one party should not live better than the other.
1. Contribution theoryyou have contributed and forgone employment opportunities. The starting point
is equal division of earned income. So the party have to be given long term maintenance so she can be
up to the level of the other guy.
iv. Moge Case They diminished the clean break idea. They said that the marriage is a partnership and when the
partnership is dissolved the pot has to be split equitably also. The court said that they have to concern
themselves with post divorce needs being met. Rogers (from article) doesn’t like the Moge result she thinks the
real focus should be on the compensation idea.
1. Can the courts ever predicted the future? They are not good at predicting what can happen in the
future. The court’s can better look at the past and than they can predicted the future
v. Bracklow v. BracklowA short marriage btw equal, wife became ill, husband had to support her after the
divorce. There was a lifetime commitment on his part. This seems to Diamond like a total return to the alimony
idea. NY looks to a total break idea when there is a divorce
1. NY if your former suppose goes on public assistance or at that level the state can come after you
a. This is saying that a former spouse has lifetime commitment to their former suppose before
the state comes in
vi. Morgan v. MorganParties got married in college, H went to law school and made money, W made income as
secretary, they separated. W went to school and did pre-med and did very well and now she wants to go medical
school. The trial court said that she should go to medical school so why should she live a frustrated life. The
appellate court reversed said that the medical school was a decision that was made when the parties were
separated, and therefore the husband assistance of his wife did not exist b/c they had separated. The court said
that it is not the husband problem that she wants to go to medical school. Therefore the court said that the
husband did not have to pay for it
1. However there is an argument that can be that when W was just a secretary she help to support her
husband through law school
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 vii. In re Marriage of FrancisW had good degree and skills, but she wanted to go to school to go get a teaching
degree. H said that W earned good money right now. He said that if she gets another teaching degree she will be
at a higher living standard. Holding: ct said that during the course of the marriage there were inequities and the
wife should not suffer that in her life right now. So the court gave her rehabilitation money and then money for
support for four years while W est. herself in her field. Court made H pay for a material boost in the W
standard. This is exactly the opposite of what the court did in Morgan.
viii. Hypo (Real Case in Minnesota) W got 10 yrs rehabilitative alimony. She was supposed to get steady (find a
job etc) to get the money. Just before 10 yrs was up she asked the court for permanent alimony claiming
changed circumstances: she did not get the vocational training instead she had taken part-time jobs.
1. What should happen?
a. The court should not allow her willful disobedience the court. This would set a bad precedent
that people can disregard the court’s order and then come back and claim that they need
permanent support
b. The argument the state would make anyone but them should to support which falls on here
husband
i. Real Holding:
1. TC said that she had not become rehabilitated and so that is a changed in
circumstance. TC said that 10 yrs earlier there was anticipation that she
would be rehabilitated but that did not happen and so there is a change in
circumstance
a. TC granted motion for permanent alimony but they said that
needed further information b/c at the time they had young children
and so there might not be any changed circumstances
ii. Remand
1. Expert for H said that had W did the minimal amt to get her life going she
would be making $25000
a. So the TC awarded her permanent alimony but reduced it by
$25000 which is distributed income (treating her like she had the
income even though she did not)
2. 2nd Appeal
a. H said that failure to work was volition and bars permanent
alimony. The appellate court said that she get permanent alimony
but to the reduced life of $25000
ix. Problem 2 (page 456) H and W were factory workers, they lived ok. H invented something that successful.
They continued to live at the same level even after the success. Now they are separated. W got big property
distribution: 40% of stock in co. (instead of 50% b/c W did not make any contribution to invention). The W
work and supported herself.
1. Should she get rehabilitative alimony (bring you back to where you were or would have been)?
However she is a blue collar worker and so she should maintain that standard of living
a. LaRocque approachshe should share in the high standard of living
b. Turner approachshe is doing fine and she shouldn’t get anything which means that she has
money to live at standard that she was living before the invention and that is fine
2. Arguments
a. Wcould say that the idea was during the marriage therefore it is marital property and she
should get a substantial part of what H is getting for his invention
i. Whether or not she did anything the increase in property during the marriage is
marital property and so the idea to begin w/ was a marital idea and so she is entitled
to the proceed also.

BEGIN TOAR NOTES

Recap of Alimony
Turner Case
• Traditional purpose of alimony is dated.

• Turner is concerned about non-rich men being tied down for life to pay alimony.

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 o Alimony would tie down the men from moving on.

• Women are tied down by alimony because they become lazy and dependent.

o Taking away alimony would implore women to get out and work.

• Property distribution was the method to equalize redistributing wealth at divorce.

1980’s and scholarly thoughts on alimony

• Women and children end up disproportionately worse at divorce.

o Men tend to end up either in the same economic state or in a better economic state after divorce.

• No fault has nothing to do with the disproportionate effect on divorce between women/children vs. men.

Modern equitable distribution

• Focuses on dividing up the losses so that no one party is disproportionately worse than the other party.

• Alimony is looking at the fact that some people suffered worse losses than the other during the marriage.

• Compensatory payment

o It’s not just a general obligation to support an ex spouse

o It’s compensation that gives money back to the other party for the loss suffered during the marriage.

• Old justification for alimony doesn’t work.

• Earning capacity is the greatest asset that a spouse has.

In Re The Marriage of Larocque

• Permanent alimony can sometimes be justified.

Alimony law in current times

• Alimony laws are still a mess.

o A remedy without at theory.

o Court rulings and statutes don’t reflect a coherent alimony law theory.

• Body of law that is irrelevant to most people because so few people have to pay/or are granted alimony.

• Statutes have to same basic structure.

o Alimony is one of the things that the divorce judge has to order.

 Provide a few statutes to calculate alimony.

o Threshold question to whether alimony is justified.

 If alimony is justified, party must have ability to pay.

 Afterwards, it’s a matter of how much alimony to pay and for how long.

o New York uses the second basis for alimony.

D. 2. Pension and Employment Benefits

Intro to Pensions and divorce
• Divorcing couples don’t have a lot of property but many times there are savings accounts, retirement plans or pensions.
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 • Pensions end up being an important asset to divvy up.

• Before the 1970s, the law didn’t thing of pensions as a tangible asset that could be divided up at divorce.

o Pensions were unlike property, cash, cars, etc that could be spilt up at divorce.

o Pensions had an intangible characteristic.

o Therefore there were no claims to divide pensions before the 1970s.

Pension as property
• Is a pension marital property that should be divided?

o The natural feeling is that a pension is marital property that should be divided.

o Pensions are earned from work and thus a tangible asset.

• How about non-vested pensions or funds that don’t mature until the future?

o Equitable distribution awards are a one time thing.

o Pensions get embodied in a judgment and it’s done.

o Pension has to somehow get valued at time of divorce.

• Laing

o Court held that husband’s vested portion of the pension was $27,000.

o Court used a formula to value the pension to find husband’s interest.

o However the Court provided an offset to the wife in case the pension never vested.

o Solution to non-vested pensions is to not divide the pension.

o Another solution is that the reserve jurisdiction until the pension vest.

 The Court is basically deferring on making a decision on splitting the pension until the pension vest.

END TOAR NOTES

CHAPTER 7—PARENT-CHILD SUPPORT DUTIES

1. Introduction
a. Property Settlements are FINAL, not modifiable.
b. Alimony is modifiable.
c. Child support is modifiable and typically ends at emancipation (18 or when child gets married).
i. It is important that court orders distinguish between child support and alimony because they end at different
times and relate to different things. This is required by S.C. Code § 20-3-150. Also, they are treated
differently for tax purposes.
d. S.C. Code § 20-7-90—both parents are obligated to support. We don’t worry about who has custody or who doesn’t
have custody. If you have income, you are going to have to pay child support.
i. § 20-7-956—if parent is unmarried minor, then grandparents are obligated for child support.
e. Prior to 1990: Every state had own method of calculating. Little federal involvement.
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 i. Many recipients finding it hard to collect. W/o the support, ppl increasingly rely of state and federal
assistance
f. In the late 1980s and early 1990s, concern in the federal government that child support payments were too low.
Thought that if they were increased, there would be less demand for people having to come back and apply for other
federal assistance programs. Also, if it were uniformized at the enforcement level, there would be less demand on
tax revenues to pick up where individuals should be responsible.
i. Federal Legislation (42 U.S.C. § 667):
1. Each state has to develop guidelines.
2. Guidelines presumed to apply.
3. Deviations only if for specific enumerated factors (if a judge wants to deviate from the guidelines,
there has to be a specific finding for the deviation and there have to be specifically enumerated
reasons and judge has to point to one)
4. Guidelines periodically updated (every 3,4, or 5 years).
g. If a child court judge wanted to deviate far from the calculator, he would have to produce writing to explain why he
did so.
2. The Prevailing Child Support Model
a. Flat Percentage Guideline:
i. Sets child support as a standard percentage of obligor income, with the percentage varying according to the
number of children. Some percentage guidelines are based on gross income (before tax) while others are
based on net income.
1. The Non-Custodial Parent is ordered to pay child support based on a percentage of his or her
adjusted gross income. This percentage is based upon the number of children the support award is
for.
ii. Criticism - Percentage of income is not adjusted for the income of the custodial parent.
1. How the child lives will depend on whether or not the custodial parent has money.
a. A child that has a custodial parent that is doing well financially is doing a lot better than
one who has a custodial parent with no income.
b. Income Shares Model
i. Based on precept that child should receive the same proportion of parental income that would have been
received if the parents lived together.
ii. Three-Step Approach:
1. Income of the parents is determined and added together;
2. A basic child support obligation is computed based on the combined income of the parents. This
obligation represents the amount estimated to have been spent on the children jointly by the
parents if the household were intact. The estimated amount, in turn, is derived from economic
data on household expenditures on children. A total child support obligation is computed by
adding actual expenditures for work-related child care expenses and extraordinary medical
expenses.
3. Total obligation is then pro-rated between each parent based on their proportionate shares of
income.
iii. The Income-Shares model is the most popular model used among states. Under the income-shares model,
courts take into account the incomes of both parents to determine the child support obligation; many states
will then multiply the parents’ combined income by a particular percentage (based on the number of
children) to arrive at a support obligation (for instance, 15 percent of the combined income for one child,
25 percent for two children, and 30 percent for three children); that number will be divided in half, and the
non-custodial parent will be obligated to pay it.
1. Still, other states have child support tables; a court will look at the parents’ combined incomes and
apply the child support amount dictated by the guideline chart; the amount is then divided between
the parents according to their incomes. The non-custodial parent will then have to pay his or her
proportionate share to the custodial parent because it is assumed that the custodial parent will pay
his or her share by virtue of being the custodial parent.
iv. Criticism—doesn’t address the reality that two people living apart have more expenses, etc. to cover than
those same two people living together.
3. Particular Issues in Applying Child Support Formulas
a. Peterson v. Peterson (1989) (Court is considering what should be included in “gross income” when determining
child support obligations.)

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 i. Wife is arguing that the court erred by not including money earned (but never actually received) by
Husband that was put back into the family business.
ii. Court says that based on the state statute, an obligor’s monthly gross income only encompasses those
amounts received by the obligor.
b. NOTE:
i. South Carolina has taken a much broader stance on what constitutes “gross income.”
ii. When income of one parent is above the top amount on the child support scale, judge has to use discretion
and consider all surrounding circumstances in determining the proper amount of child support.
c. Children’s Medical Expenses:
i. Federal and state laws require that child support decrees specifically address how children’s medical
expenses will be paid.
ii. For employed parents this can usually be done most economically by ordering a parent whose employer
provides insurance to include the children in his or her plan. Employers cannot refuse.
iii. Qualified Medical Child Support Order – judge issues. Directed to parent’s health care plan administrator
that the child is entitled to be covered (whether child is a dependent or not).
iv. S.C. § 20-7-1200, et al.—has to do with healthcare for children. There are qualified child medical support
orders that are analogous to QDROs. Any business covered by ERISA (basically any business involved in
interstate commerce), employers must provide medical insurance coverage for children of the employee,
even if the employee doesn’t have custody of the child. Qualified Child Support order can be filed with the
healthcare plan and will order the plan to put that child on its coverage. It is a mechanism to make sure
there is coverage.
d. Colonna v. Colonna (2004) (Father was ordered to pay child support and was then deemed children’s primary
custodian. He wants to terminate child support.)
i. Superior Court found that for purposes of calculating child support, the custodial parent is the obligee and
the non-custodial parent is the obligor. Because children spend 73% of the time with dad and 27% of the
time with mom, the Superior Court determined that dad does not owe mom child support.
ii. This court DISAGREES. Court is concerned of the effect of children having to live vastly different lives
when they go from one parent’s house to the other.
iii. Court says trial court should inquire whether the non-custodial parent has sufficient assets to provide the
children with appropriate housing and amenities during his or her period of partial custody.
e. NOTE:
i. Child Support Obligations of Low-Income Parents
1. When a parent has little or no income, the first issue that must be considered is whether additional
income should be imputed to the parent on the theory that he or she could reasonably be expected
to earn more.
2. Parents with very low incomes who cannot earn more are generally not totally exempt from child
support.
3. Many guidelines provide for a minimum child support obligation (i.e. $25/month).
4. Most courts have held that public assistance payments are not “income” for child support
purposes.
4. Support for Older Children
a. What happens when a child is nearing 18 and wants to go to college?
i. S.C. Code § 20-7-420(17)—child support is to be paid to 18 unless child is married/self-supporting. Our
statute refers to emancipation a lot. We view the age of 18 as the typical age of emancipation.
1. Cases interpret “emancipation” as married or becoming self-supported.
a. It is also possible to become emancipated by conduct that is so adverse to your parents’
wishes. If this takes place, parent is relieved of obligation to support you.
2. Parties can agree to extend child support beyond 18.
3. Another portion of the statute says if the child is still in high school after 18, then support
continues until 19 to give them a chance to graduate high school.
4. Absent an agreement, Court can continue for physical/mental disabilities or for exceptional circs.
ii. Can the parties agree to provide child support through college and grad school? Yes.
1. Nothing in the statute prohibits this.
2. Has never been a case holding that in absence of agreement, a parent has to support a child beyond
undergraduate school.
iii. Agreement: I agree to support my 2 children, A & B, through completion of their undergraduate degree.
1. Attorney should think about:
a. Time limits

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 b. Changed circumstances
c. Grade requirements/Progress
d. Other conditions (housing, etc.)
e. Debt (must child apply for loans, work, etc.?)
iv. What if there is no agreement?
1. Risinger v. Risinger (South Car. Case)—Court can award child support beyond age 18 for college
if:
a. Child will benefit
b. Child has ability (will pass courses, etc.)
c. Child cannot otherwise go to college (tough requirement b/c of student loans), AND
d. Parent has financial ability to pay (Does this include possibility of going into debt? Yes,
can be taken into consideration.)
v. Childers v. Childers (1978)—illustrates that some states take a different approach than states like South
Carolina and do not give a specific age at which child support presumptively terminates. This case says
that child support lasts as long as the child is “dependent.”

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