Family Law Oliphant/4th ed. Outline

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Family Law
Authors Robert E. Oliphant
Nancy Ver Steegh
Text Image of Lunney & Oliphant's Tort Law: Text and Materials
Lunney & Oliphant's Tort Law: Text and Materials
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Family Law and the Constitution[edit | edit source]

  1. Basics on Federal Due Process and Equal Protection Analysis
  • Due Process Clause (14th A) – no deprivation of life, liberty, property w/o due process of law. Steps in Substantive due process analysis:
    • o Fundamental right? (Individual autonomy at issue?)
      • Right to marry and procreate
    • o If law infringes fundamental right, apply strict scrutiny.
      • “There is a compelling government interest that is narrowly tailored to achieve the purpose.” (gov interest public charge, Zablocki)
    • o If no fundamental right infringed, rational basis
      • “Law lacks legitimate purpose or bears no relationship to legit purpose”
    • Equal Protection (14th A) – no state shall deny to any person… equal protection of the laws. Analysis:
      • o (1) Does the law at issue classify one group differently from another?
      • o (2) Are the classes similarly situatied?
      • o (3) What is the type of classification?
        • Is it “suspect?”
        • Does it burden a “fundamental right?” (right to marry and procreate)
        • Is it quasi-suspect? (Gender and illegitimacy)
      • o (4) If the class is suspect or burdens a fundamental right, strict scrutiny
      • o (5) If the class quasi-suspect, intermediate scrutiny (“law substantially related to important government objective”)
      • o (6) If no suspect class, doesn’t burden a fundamental right, and is not quasi-suspect, just rational basis

Case: Obergefell v. Hodges (Due Process and Equal Protection Clause/Same Sex Marriage)

  • Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.

Case: Maynard v. Hill (Marriage Ain’t an ordinary K)

  • A marriage is a special type of contract. Marriages are public, while Ks are not, so marriages are a matter of social concern – a social institution regulated by law, rather than traditional contract law. This is because the government must be involved in things like marriage dissolutions.

Other stuff:

  • States regulate family law.
  • Full Faith and Credit Clause (Art. III § 1) – a state is obliged to follow other states’ judicial proceedings UNLESS:
    • o Court had no jurisdiction
    • o The public policy exception –“other state’s judgment would be so adverse to this state’s policy.” Very narrow.

Marriage Requirements[edit | edit source]

  • States have a vital interest in marriage with plenary power to fix the conditions under which a marital status may be created or terminated.
    • o There are financial and social benefits from marriage. Ex. inheritance and social security benefits and wrongful death and pension plans, etc.
  • Consanguinity requirements – courts don’t allow common blood relationships.
    • o Reasoning: science of genetics
    • o Question of whether first cousin marriages are ok is unresolved. Half the states ban it.
  • Affinity is the opposite of consanguinity. There is a different type of bond between a husband and wife, called affinity.
  • Bigamy is defined as two wives or two husbands at the same time, Polygamy is when you have more than that.
    • o Criminal intent is usually required to convict for it.
    • o Defense to bigamy – an Edoch Arden statute, drafted to apply in the rare instance that a person remarried without getting a divorce but believes in good faith the partner is dead. Usually has a time period (generally 5 years).
    • o Another defense: Insanity, intoxication, duress, self-defense, or a belief one is divorced.
  • Common Law Marriage- a marriage that takes legal effect without license or ceremony where a couple live together as husband and wife, intend to be married, and hold themselves out to others as married. Allowed in 15 states.
  • Proxy Marriage – Some states allow someone to stand in as a proxy for the person actually being married. Montana is the only state that allows two proxies to stand in.
    • o Must act under written authorization.
  • Covenant marriages – when two parties enter into a no-fault marriage K or a covenant marriage K. There’s mandatory marriage counseling, and a premarital signing of a declaration of intent requiring the couples to use reasonable efforts to conserve the marriage.
  • Putative Marriage – A void marriage is recognized with limited legal consequences despite its invalidity, provided that one of the parties in good faith believed it to be valid.
  • Foreign Marriages are recognized when they do not contradict state law.

Case: Carabetta v. Carabetta (Marriage Solemnized but no License Obtained)

  • A marriage entered into without obtaining a marriage license, after some formal ceremony, is not void, and thus it is dissoluble.


Divorce[edit | edit source]

  • If marriage void or voidable, process for dissolution, depending on state, is called “annulment” or “divorce
    • o Void - Statute explicitly deems marriage void OR court determines that the marriage is against strong public policy
    • o Voidable - Statute explicitly deems the marriage to be voidable OR court determines that marriage is merely voidable rather than void b/c not against strong public policy of state. (E.g. fraud, age reqs)
  • If marriage is valid, process for dissolution is divorce.
    • o Void and voidable marriages may be valid nonetheless:
      • At least one party in good faith believes the marriage is valid AND
      • The parties have met the substantive requirements for marriage
    • Might be a domicile requirement time before divorce is allowed. Check statute
    • Legal Separation
      • o Still married
      • o Court may assign financial support or property and possibly determine child custody
      • o May be granted of any of the reasons for which absolute divorce might be granted
      • o Why get legal sep instead of divorce?
        • Possibility of reconciliation has not been foreclosed
        • Religious/moral reasons
        • Retain marital status for tax and health insurance purposes
      • Grounds for Absolute Divorce
        • o Void or Voidable marriage (“annulment” in some states)
        • o One spouse is deemed dead
        • o Impotency (in some states, makes marriage voidable)
        • o Living Separate & Apart for at least three years
          • Some states—separate homes plus ceasing marital relations
          • Some states—separate lives needed, not necessarily separate homes
            • Evidence of separate lives: separate bedrooms, meals, vacations, finances
          • o Fault Grounds
            • How prove adultery?
              • Direct or Circumstantial
              • Circumstantial
                • o More than mere suspicion
                • o Disposition of spouse and another to commit
                • o Opportunity
              • Physical or mental cruelty (one instance is enough)
              • Desertion
                • Continuous physical separation
                • Against will of other spouse
                • Separation without justification
              • Constructive Desertion
                • Separation that is justifiable (e.g. violence)
                • Justifying circumstances were outside control of spouse who left
              • o No Fault (all states)
                • Grounds: irreconcilable differences


Subject Matter and Personal Jurisdiction[edit | edit source]

  • Subject Matter Juris in State Courts Requirements
    • o Durational Residency may be a requirement, depending on what “legitimate state interests.” One year has been held to be OK in Iowa.
      • This is a statutory requirement.
    • o In certain circumstances, this requirement is eased.
      • Ex. military folks
    • Divisible Divorce – a valid divorce may be issued based on “domicile” jurisdiction which lacking the authority to determine issues of financial responsibilities because the court lacks personal jurisdiction. Big in Status Jurisdiction issues.
      • o Monetary stuff will need to be adjudicated in subsequent litigation.
      • o Must be given full faith and credit by other states.
    • SMJ in State Courts – Child’s Domicile
      • o For jurisdictional purposes, children take the domicile of their parents. The parent with legal custody will normally determine the child’s domicile. But if the parents live in the same domicile, that will be the place where the child is considered domiciled.
      • o Children born out of wedlock take the domicile of the mother.
    • Personal jurisdiction is established by the defending party receiving reasonable notice under the circumstances of a legal action. There are three traditional bases of PJ:
      • o (1) Forum selection clause constitutes implied consent to PJ
      • o (2) Waiver of PJ defect
      • o (3) Failure to timely object to PJ defect
    • Personal jurisdiction is easily obtained by service of process within the physical boundary of the forum state.
      • o If the D was lured into the forum state by fraud, PJ is defective.
    • Long Arm Statutes are okay to bring in someone living outside the state. The language in the statute must apply to the case at hand. If the language does not apply, the matter is dismissed.
    • PJ “Continuing Jurisdiction” – jurisdictions possess continuing jurisdiction over the parties to a dissolution if, at the time the dissolution judgment was entered, the court possessed PJ over them. Justified by two reasons:
      • o (1) Stops someone from moving out of the jurisdiction to avoid judgment.
      • o (2) The forum was the state of the original marriage domicile.
    • PJ “Status Theory” – the “status” theory arises when PJ cannot be obtained over one of the parties. There are three principal theories:
      • o (1) A physical presence theory, which gave the state where a minor child was physically present the power to adjudicate custody (even in absence of one parent.
      • o (2) An in personam theory, in which jurisdiction to make custody award was based on obtaining PJ over both parties; and
      • o (3) The “Status” theory – which views child custody like divorce. The courts where the child was domiciled had jurisdiction to determine custody regardless of the fact that they may not have jurisdiction over one of the parents, similar to an ex parte divorce proceeding.
    • PJ – Expanding the “Status” Theory – jurisdictions began rejecting the “minimum contacts” requirement in child custody cases in favor of the status theory.
      • o At the same time, they also began to consider whether to extend the status theory to other parts of family law.
      • o In Bartsch v. Bartsch'', the wife moved from Iowa to Colorado. The husband had no ties to Iowa, but was domiciled in Colorado. The husband also argued that the abuse happened in Utah, where neither party resided.
        • The court upheld the Status Theory by bypassing the due process minimum contacts requirement of the Constitution.


  • (1) The Domestic Relations Exception (see next case) – federal courts traditionally abstain from deciding diversity “cases involving divorce, alimony, child custody, visitation rights, establishment of paternity, child support, and enforcement of separation or divorce decrees still subject to state court modification.” Torts may be heard in federal court:

''''Case – Ankenbrandt v. Richards'' (Domestic Relations Exception)

  • Domestic relations exception doesn’t extend to tort claims for domestic violence.
  • (2) The Probate Exception: Precludes Federal Courts from exercising jurisdiction in “narrow exceptions.”:
    • o (1) Precludes federal courts the probate or annulment of a will and the administration of a decedents estate
    • o (2) Precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court.”

Recognizing Foreign DivorceCase: In re Ramdan

  • Muslim guy says “I divorce you” 3 times. Wife lived in US.
    • o Comity will not be enforced absent good public policy reasons. An ex parte divorce obtained in a foreign nation where neither party is domiciled would frustrate and make vain all State laws regulating and limiting divorce. Divorce not recognized.
  • Ex parte divorces only allowed when other party given notice and opportunity to be heard (unless domestic violence or something)

Child Custody and Parenting Plans[edit | edit source]

  • Sole legal custody – one parent has authority to make major decisions such as medical treatment, religion, education
  • Joint legal custody – the parents share major decisions
  • Sole physical custody – child resides primarily with one parent who is responsible for routine daily care
  • Joint physical custody- the child maintains residence at both homes.
    • o Some courts allow alternative labels or creation of your own labels like on-duty and off-duty parents or residential and nonresidential parents.
    • o Requirements from Rivero:
      • (1) The timeshare must be about 50/50
      • (2) Each parent must have physical custody at least 40% of the time
    • Parenting Plans are written agreements, approved by the court, that contain parenting time schedules, decision-making protocols, parenting ground rules, mechanisms for dispute resolution, and financial arrangements for the child. Vary substantially and involve a high degree of co-parenting.
      • o Often crafted to keep the parents away from each other.
    • Co-Parenting- both parents parent cooperatively, sometimes in a joint legal and physical custody arrangement
    • Parallel parenting – contact between the parents is minimized to protect children from conflict
    • Supervised exchange – physical exchange of the children takes place in the presence of a third party to ensure avoidance of conflict or violence between the parents
    • Supervised access – parenting time takes place in a supervised setting
    • No contact – when children are at risk, and no meaningful relationship is possible, parenting time may not be allowed.
    • Split Physical Custody – you have 2+ kids. One kid lives with one parent, the other with the other parent.
    • Visitation – one parent has physical custody, the other doesn’t. It is the right of the non-custodial parent to visit their child.


  • Best Interests Standard – courts also examine the extent to which race, religion, and disability can be considered in determining the best interest of the child.
    • o Courts may not use race as the sole or decisive factor.
    • o Courts are not allowed to favor one religion over the other – they consider parental religious behavior that effects the health and well-being of the child.
    • o Courts are allowed to consider the effect of parental disability on the child.
    • o Money is never a factor in determining custody.
  • There is a presumption that natural parents are entitled to custody over third parties like stepparents and grandparents.
    • o Known as The Natural Parent Assumption (Majority view)
  • Some states have a presumption of joint legal custody or joint physical custody is in the best interest of the child.
  • Other states have a presumption that such arrangements are in the best interest of the child when requested by the parents.
  • Other states have no expressed preference and consider each case on its merits.

Parenting Time and Visitation[edit | edit source]

  • To modify orders – Material Change in Circumstances
  • Third parties (step-parents, grandparents) may seek visitation rights if in best interests of child.


  • Standard
    • o (1) Court requires showing by parent seeking modification that a material or substantial change of circumstances has occurred since the original decree.
      • Described as important new facts that were unknown at the time of the decree.
    • o (2) Once the moving party has met #1, they must show that modification of custody order is necessary to serve the best interests of the child.
  • Relocation – no substantial change in distance of child and noncustodial parent
    • o Another state (Curtis) – 17.6 miles was enough to stop a move since was over state lines. Based on a state law.
    • o Another standard: best interests of the child

Financial Consequences in Family Law[edit | edit source]

  • A majority of states use the income shares approach. The goal is to provide the child w/ same proportion of support they would’ve gotten if the family stayed together.
    • o The income shares model takes the income of both parents into account. Amount is determined proportionate share derived from state-estimated cost of raising a child at the parents’ combined income level
  • Some states use the percentage-of-income child support model where the nonresidential parent pays a state-mandated percent of income. Depends on number of children.
    • o There is always a rebuttable presumption that the award is correct.

Modification of Support OrdersStandard: Substantial change in circumstance so substantial as to make the terms unconscionable

  • o If no statute gives guides, In re Little Test'' to determine whether voluntary decrease in income:
    • o (1) The Good Faith Test – considers the actual earnings of a party rather than his earning capacity so long as he or she acted in good faith and not primarily for the purpose of avoiding a support obligation when he or she terminated employment.
    • o (2) The Strict Rule Test – disregards any income reduction produced by voluntary conduct and looks at the earning capacity of a party in fashioning a support obligation.
    • o (3) The Intermediate Test – balances various factors to determine whether to use actual income or earning capacity in making a support determination.
      • These are not exhaustive factors. The primary task for the trial court is to decide each case based upon the best interests of the child, not the convenience or personal preference of a parent.

Enforcement of Child Support Orders[edit | edit source]


  • o Direct Contempt – you do something outrageous in court
  • o Indirect Contempt – you violate a court order
    • o Civil Coercive – trying to coerce the person to comply. E.g. you go to jail until you pay/substantially pay arrears
    • o Civil Compensatory – the person owed benefits suffered losses, and now you must pay
    • o Criminal Contempt – a defined amount of time you’re put in jail or fined at a fixed rate.
      • 14+ days of jail time = criminal contempt rather than civil coercive. Entitles you to a jury and attorney.

Establish & Modify Spousal Support[edit | edit source]

  • o UMDA Approach
    • o (1) Determine whether need exists
      • (a) lacks sufficient property for reasonable needs
      • (b) unable to support self through employment or is the custodian of the child and needs to stay home to take care of the child instead of getting employment
    • o (2) Once need established, look @ circumstances
      • Decide amount of $ and period of time based on various public policy considerations.
    • o ALI Approach – Compensating for loss
      • o Compensates for financial losses arising from dissolution of marriage.
      • o “Entitlement to compensation”
        • Loss of marital standard of living, loss of earning capacity, loss before spouse realizes fair return on earning capacity of another (e.g. one spouse pays for law school for other spouse before divorce), unlawfully disproportionate disparity between spouse’s ability to recover from divorce.

Modification Standards of Spousal Support:

  • States differ on the legal standard for modification of spousal support:
    • o Many require evidence of a substantial change in circumstances sufficient to render the original award unfair
    • o Others require a higher showing similar to the UMDA, that contains very restrictive legal standard for modification:
      • “A showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”
    • Even though modification standards differ, courts typically approach the issue of modification with a FOUR STEP ANALYSIS:
      • o (1) Courts examine the judgment to determine whether there is jurisdiction to hear the request.
        • They have it if at the time of the original reward, it had PJ over the parties and an award was made on the issue or was reserved.
      • o (2) The second stage involves presenting evidence showing a substantial change in circumstances on the part of either party.
        • Courts generally take the view that modification should occur only upon showing of facts that prove a substantial change of circumstances after the dissolution or prior modification.
        • Most jurisdictions require the evidence demonstrate the change was not contemplated at the time of final judgment of dissolution.
          • If the change was foreseeable, courts will dismiss.
          • This is a fact-based inquiry
        • o (3) If the court proves a substantial change in circumstances, the moving party must then prove that the substantial change in circumstances makes the original award unreasonable and unfair, although jurisdictions might differ on the language.
        • o (4) Once the moving party has established the modification is warranted, the fourth stage sets the exact amount of increase or decrease in maintenance.
          • Courts must look at all relevant favtors, including the criteria for an award of maintenance found in state statute.

But what’s a changed circumstance?

  • o Spousal support ceases if recipient remarries UNLESS:
    • “otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or remarriage of the party receiving maintenance.
  • o State rules differ on cohabitation with a new significant other by the recipient of spousal support.
    • Most states analyze whether there is a need of the former spouse that is changed as a result of cohabitation.
    • Cohabitation generally requires a sexual or romantic relationship.
    • Some states terminate spousal support payments automatically when recipient cohabits.

Division of Property at Divorce[edit | edit source]

  • In Community Property States, the marriage is considered a partnership, and each spouse has an undivided one-half interest in property acquired by spousal labor during the relationship.
    • o There is a presumption that the property possessed by either spouse during or on dissolution of marriage is community property.
    • o Some states require an equal distribution of property. Others require an equitable
  • Equitable Distribution – the extent to which each party contributes to the marriage is measurable not only by the amount of money contributed to it, but also by a whole complex of financial and nonfinancial components.
    • (1) Classify marital/nonmarital property
    • (2) Value marital property
    • (3) Divide equitably under the circumstances.
  • o Recognizes that when a marriage ends, each of the spouses based on the totality of contributions made to the marriage, has a stake and right to a share of the marital assets accumulated because they represent the capital product of what was essentially a partnership entity.
  • o Tracing can avoid something from being considered marital property. One example is a stock purchase with funds directly traceable through nonmarital assets. The claimant has the burden of proof.
  • o The distribution standard in equitable distribution includes:
    • Pension and retirement benefits acquired or earned during marriage
    • Equity in property built up during the marriage.
    • And the rather broad standard of what is “just and equitable
  • o In many equitable distribution jurisdictions, all property acquired legally or equitably during the marriage by either party is presumed to be marital property.
    • This presumption is rebuttable by a spouse who produces sufficient evidence showing an item is not marital property. Nonmarital property includes:
      • Property acquired before, during, or after the marriage which is…
        • o (a) acquired as a gift, bequest, devise, or inheritance made by a third party
        • o (b) is acquired before the marriage
        • o (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), and (e)
        • o (d) is acquired by a spouse after the valuation date; or
        • o (e) is excluded by a valid antenuptial K
      • Property Division - UMDA influence:
        • o For non-community property states consider Alternative A:
          • The court without regard for marital conduct shall equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether title thereto is in the name of the husband or wife or both. In making apportionment the court considers duration of the marriage, any previous marriage of either, any antenuptial agreement of the parties, the age, health, station, occupation, amounts, and sources of income, vocational skills, employability, estate, liabilities, and needs of each 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. Court also considers the contribution or disspiptation of each party in the acquisition, preservation, depreciation, or appreciate in value of the respective estates, and the contribution of the spouse as a homemaker or to the family unit.
        • o For community property, consider Alternative B:
          • Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as a homemaker
          • Value of the property set apart to each spouse
          • Duration of the marriage; and
          • 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.
        • Property Division – ALI Approach
          • o Recommends a presumption that favors dividing marital property evenly. The presumption is rebuttableby a showing that the former spouse is entitled to compensation for reasons that would justify an award of spousal support.
          • o ALI divides property into marital and nonmarital shares. Marital property arises when the parties are involved in a long-term marriage.
          • o The ALI follows majority rule in the nation and do not treat earning capacity of a license or degree acquired during marriage as divisible asset.
            • Instead, they provide for Compensatory Payments that can be used to reimburse a supporting spouse for the financial contributions made to the other’s education or training.
            • Transmuted property is a separate asset that is changed or “transmuted” by the voluntary act of the owner by placing title in the names of both the husband and wife.
          • In Equitable Distribution States – Source of Funds Rule:
            • o Active appreciation (efforts from either spouse to increase value) will convert marital property into nonmarital property.
              • Passive appreciation will not (asset increases in value w/o work)
            • Valuing Goodwill – intangible asset associated with spouse’s business or professional practice
              • o Can be either enterprise goodwill (attached to business entity instead of owner) or personal goodwill (associated with individuals).
              • Marital Debts – distributed at divorce. Four-part test:
                • o (1) Purpose of debt?
                • o (2) Which party incurred the debt?
                • o (3) Which party benefitted from incurring the debt?
                • o (4) Which party is best able to repay the debt?
                  • Courts will use either a joint benefit scheme (50/50 split) or proportionality scheme (debt incurred proportional to your benefit)

'Postmarital Contracts'Premarital and Postmarital Contracts

  • Premarital Ks usually address the following issues:
    • o Giving up any right (by inheritance or any other legal right) to take property from deceased spouse’s estate
    • o Giving up the right to dispute the Will of a deceased spouse
    • o Giving up the right to claim ownership of specific property that would ordinarily be considered marital property in the event of a divorce
    • o Giving up the right to seek financial support from the other spouse in the event of divorce.
  • Waiving Alimony
    • o Split in authority among states as to whether a premarital agreement ma control the issue of spousal support.
      • Most states allow it if it’s explicit.
        • Some states do it by statute, others by judicial decisions.
      • Minority jurisdictions refuse to allow premarital contracts to control alimony, holding that provisions attempting to do so are void per se.
    • Barriers to Use – Children
      • o Children receive special protection:
        • All jurisdictions agree that the right of a child to support may not be adversely affected by premarital agreement.
        • Also, when determining child custody, the best interests of the child prevail over any agreement by parents.
      • Barriers to Use – Essential Marriage Obligations
        • o Unenforceable provisions on premarital Ks include:
          • Provisions that attempt to change essential obligation of the marriage K is seen as contrary to public policy and unenforceable
          • Cannot violate criminal law
          • Cannot allow you to violate the duties incident to the relationship
        • Barriers to Use – Waiving Retirement Benefits
          • o The waiver must meet the requirements of ERISA and REA 29 USC § 1001 et seq.
            • Accrued benefits payable to a vested participant who does not die before the annuity’s starting date “shall be provided in the form of a qualified joint and survivor annuity.
            • “In the case of a vested participant who dies before the annuity starting date and who has a surviving spouse, a qualified retirement survivor annuity shall be provided to the surviving spouse of such participant.
            • Waiver requirements:
              • (1) Must be in writing
              • (2) The election must designate a beneficiary (or form of benefits) that may not be changed w/o spousal consent or consent of the spouse expressly permits designations by the participant w/o any requirement of further consent by the spouse
              • (3) The spouse’s consent must acknowledge the election’s effect; and
              • (4) The spouse’s signature must be witnessed by a plan representative or notary public
              • (5) Must be made within the applicable election period
            • Consideration for any agreement is marriage itself
            • Procedure – Capacity
              • o Must have capacity to enter into a premarital agreement:
                • Must be of legal age
                • Must possess sufficient mental capacity
                • Burden of proving incompetency rests w/ party asserting incapacity
              • Procedure – Voluntarily Executed
                • o How to decide whether an agreement was entered into voluntarily:
                  • (1) Surrounding facts and circumstances, including the couples’ comparative situations
                  • (2) Parties’ respective property
                  • (3) Parties’ family ties and connections
                  • (4) Circumstances preceding the agreement’s execution
                  • (5) Circumstances leading up to marriage
                  • (6) The parties’ ages, education, and business experience
                  • (7) When the agreement was presented
                  • (8) Who drafted the agreement
                  • (9) Statements of the parties prior to or during execution
                  • (10) Whether parties had independent advice of counsel before entering into agmt
                  • (11) Actual comments of counsel
                  • (12) Who was present during execution of the agmt
                • Procedure – Was the K Properly Witnessed? (Lawrence v. Lawrence)
                  • o Typical requirements that must be met to ensure validity of premarital K:
                    • (1) K must be in writing – uniform amongst states
                    • (2) Both parties must enter into the K only after full disclosure of holdings
                    • (3) The parties must intend that the K be a full discharge of rights of inheritance from the estate of the other and a waiver of any marital rights, should the couple divorce
                    • (4) There must be fair consideration in exchange for the waiver of rights of inheritance or other statutory rights
                    • (5) Additionally, case law seems to require that each spouse be advised by a separate attorney regarding his or her rights and liabilities under such a contract, or, at minimum, have the opportunity to do so.
                  • Procedure – Full and Fair Disclosure of Assets
                    • o The confidential relationship of mutual trust in a marriage demands the exercise to the highest degree of good faith, candor, and sincerity in all matters regarding the proposed agreement.
                    • o Minority of jurisdictions say people not yet married haven’t entered into the confidential agreement yet.
                    • o Duty in virtually all jurisdictions that each spouse disclose in premarital K:
                      • Amount, character, and value of individually owned property
                    • o Other states accept general knowledge of another’s wealth and assets as acceptable for a premarital agreement.
                    • o Some states will consider the agreement differently if it was made before or after a formal engagement
                  • Procedure – Necessity of Counsel
                    • o Independent counsel must represent each party to a premarital K at the time it was executed, usually. They must at least have an opportunity to do so.
                    • o Sometimes an agreement will not be set aside for this reason, for example, if one attorney prepares the document and reads it to both parties when they sit together.
                  • Procedure – Sufficient Time to Review the Contract
                    • o The amount of time is another factor considered.
                      • Sometimes an agreement will be set aside if there isn’t a long enough amount of time between signing the agreement and the marriage.
                    • Enforceable Issues – Unconscionable When Executed
                      • o Sometimes they’ll be found to be unconscionable when executed if “no promisor with any sense and not under delusion would make, and that no honest and fair promisee would accept.”
                      • o General list of factors considered:
                        • (1) disadvantaged party’s opportunity to seek independent counsel
                        • (2) relative sophistication of the parties in legal and financial matters
                        • (3) temporal proximity b/w the introduction of the agmt and wedding date
                        • (4) use of highly technical language or fine print
                        • (5) fraudulent or deceptive practices to procure disadvantaged party’s assent.

Enforcement Issues – Reasonableness of Premarital Contracts (Simeone v. Simeone)

  • o The court decided that in PA they would no longer inquire into whether the terms of the premarital agmt were fair or whether the parties had informed understandings of the rights they were surrendering.
    • They still allowed traditional K challenges like: duress, unconscionability, misrepresentation.
    • PA only requires a K be approved only if they either “made an adequate provision for a spouse” or provided for “full and fair disclosure of the general financial pictures of the parties and the statutory rights being relinquished.”
  • Enforcement Issues – Second Look Doctrine (Austin v. Austin)
    • o The Second Look Doctrine reviews a premarital K for substantive fairness.
      • Substantive fairness: “as it applies to the terms of the agreement, it is not a substitution of the court’s notions of what is right for the parties’ bargain. It is amorphous and made on a case by case basis and the standard is variously described as reasonable, fair, not unconscionable, and equitable.
    • Enforcement Issues – Religious Provisions
      • o Mixed reception by courts.
      • o Agreement that child will grow up with a certain faith is usually not upheld.
    • Presumption of Legality
      • o In most jurisdictions, the agreement is presumed valid with the same legality as a contract. Fraud, duress, or overreaching that is unconscionable is not OK.
    • Burden of Proof
      • o Some states put the burden for premarital K disputes on the proponent, some on the opponent.
      • o Some states have a shifting burden model for some aspects of a premarital K. For example, if provisions made for a spouse receiving alimony are largely disproportionate, the burden of proof for the value shifts to the party who claims the amount is valid.
      • o The UPAA places the burden on the party seeking to avoid enforcement of the agreement.
    • Postnuptial Contracts
      • o A K entered into after marriage by the h+w involving property or property rights of the parties.
      • o Trend is that these are enforceable.
      • o Once upheld in MA if careful scrutiny by the judge determines at minimum:
        • (1) each party had an opportunity to obtain separate legal counsel of their own choosing
        • (2) no fraud or coercion in obtaining the agmt
        • (3) all assets fully disclosed by parties when agmt executed
        • (4) each party knowingly and explicitly agreed in writing to waive the right to a judicial equitable division of assets and all marital rights in event of divorce; and
        • (5) terms were fair and reasonable at time of execution and at time of divorce.

Cohabitation Outside Marriage[edit | edit source]

  • Cohabitation defined as:
    • o (1)To live together as spouses;
    • o (2) to live together in a sexual relationship when not legally married
  • Marvin Doctrine – disallows you from making a K claim based on cohabitation b/c lack of a confidential or fiduciary relationship of the parties. Other states might allow claims based on:
    • o (1) Express K
    • o (2) Implied-in-fact K
    • o (3) Promissory estoppel
      • A. Promise made by promissor
      • B. Promisor intends to induce action/forebearance
      • C. Promisee justifiably relied to their detriment on the promise
      • D. Injustice can only be avoided by enforcement of the promise
    • o (4) Unjust enrichment (implied-in-law K) – a transfer of an economic benefit without legal justification, and it would be unjust for the recipient to keep the benefit
  • Sex can never be consideration in a K claim involving cohabitation.

Domestic Partnerships

  • Defined as:
    • o (1) Partners 18 years old at minimum
    • o (2) Neither partner is related by blood closer than what is permitted by state law for marriage
    • o (3) The partners share a committed, exclusive relationship, and;
    • o (4) The partners are financially interdependent.
      • Only seven states grant domestic partnership status. Civil Unions are allowed in four states.
    • Some states give them the same rights as married couples.

Practical Issues – Dead Man’s Statutes

  • These statutes concern whether a witness may testify about a conversation or transactions with a decedent.
    • o Question arises when cohabitant asserts claim against deceased partner.
  • A dozen states prohibit testimony from an interested witness in Dead Man’s Statutes.
  • Some states have provisions declaring testimony barred unless other corroborative evidence exists.

Parentage[edit | edit source]

  1. 'When is a parent-child relationship established?'


  1. 'Legal Presumptions Regarding Establishment of Parent-Child Relationship'

'1) Biological Presumption—person who gives birth is presumed to be a legal parent'2) Marital Presumption

  • All states have a statutory “marital presumption,” with most states presuming a husband to be the legal parent of a child born to his wife.
  • Several states have amended their statutory marital presumption to apply to any spouse—male or female—of the woman who gave birth. [1]
  • An example of a marital presumption provision: Uniform Parentage Act (2017) Section 204 Presumption of Parentage'
  • (a) An individual is presumed to be a parent of a child if:
    1. except as otherwise provided:
      1. the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage, whether the marriage is or could be declared invalid;
  • the individual and the woman who gave birth to the child were married to each other and the child is born not later than 300 days after the marriage is terminated . . . .
  • the individual and the woman who gave birth to the child married each other after the birth of the child, whether the marriage is or could be declared invalid, the individual at any time asserted parentage of the child, and:
    1. the assertion is in a record filed with the [state agency maintaining birth records]; or
    2. the individual agreed to be and is named as a parent of the child on the birth certificate of the child
  1. '“Holding Out” Presumption'
  • E.g., Uniform Parentage Act (2017) Section 204 Presumption of Parentage:'
  • (a) An individual is presumed to be a parent of a child if:
  1. the individual resided in the same household with the child for the first two years of the life of the child, including any period of temporary absence, and openly held out the child as the individual’s child
  • Partanen v. Gallagher (Mass. 2016) (attached)

Presumptions of parentage can be rebutted in judicial proceedings.'''

  1. 'Involuntary status as parent'


  1. 'Adjudication of parentage'

E.g, a mother or the state asks a court to determine a man to be the biological father of the child and thus responsible for child support.'

  1. 'Parentage by Estoppel'
“Some courts have invoked the doctrine of equitable estoppel to prevent a petition to disestablish paternity . . . . In those cases, courts have held that a presumed father is estopped from challenging paternity based on the length of time that he has held the child out as his own. The doctrine “is based on the public policy that children should be secure in knowing who their parents are.” . . . . An equitable estoppel case could result in a presumed father being required to financially support a child who has no genetic connection to him. Such cases prioritize the child’s best interests over the presumed father’s financial interests.”
  • o In a minority of states, children can have more than 2 legal parents if:
  • (1) The age of the child;
  • (2) the length of time during which each individual assumed the role of parent of the child;
  • (3) the nature of the relationship between the child and each individual;
  • (4) the harm to the child if the relationship between the child and each individual is not recognized;
  • (5) the basis for each individual’s claim to parentage of the child; and
  • (6) other equitable factors arising from the disruption of the child and the individual or the likelihood of other harm to the child.
  • (a) If an individual challenges parentage based on the results of genetic testing, in addition to the factors listed in subsection (a), the court shall consider:
  • (1) the facts surrounding the discovery the individual might not be a genetic parent of the child; and
    • o the length of time that the individual was placed on notice that the individual might not be a genetic parent and the commencement of the proceeding

Adoption[edit | edit source]

  • General rule for adoption is that a natural parent is divested of all legal rights and obligations owed to the child and those owed to the parent by the child.
    • o Some states maintain the rights of the natural parent who is the spouse of the adoptive parent (remarriage)
  • Notice and Consent: Termination of Parental Rights Prior to Adoption
    • o Natural parent ties must be fully legally severed.
      • Bio parents may consent to this
      • In other cases, a court may terminate their rights based on specific grounds enumerated by a statute.
        • In this consideration of termination of rights, the court looks at termination is in the best interests of the child. Parents whose rights have been terminated may argue that staying with the child is in the child’s best interests.
      • Notice and Consent: Constitutional Rights of Putative Fathers
        • o A putative father is the father of a child born out of wedlock.
        • o Whether a putative father may adopt their child depends on strength of relationship between the putative father, mother, and the child.
          • Means the putative father must make reasonable attempts to both support and communicate with the child.
        • Notice and Consent: Adoption Registries
          • o Some states allow putative fathers to enter their name on an adoption registry prior to the child’s birth or within a prescribed time (usually 30 days of the birth).
            • Ensures the putative father will receive notice that a mother does not disclose his name and address in connection with the adoption.
          • o Failure to register may waive any potential right of the father to notice of an adoption and could constitute irrevocable consent of adoption.

Abuse, Neglect, Dependency[edit | edit source]

  • o A professional might have a duty to report.
  • o Abuse – physical, sexual, psychological
  • o Neglect – failure to provide necessaries
    • o Necessaries – food, heat, shelter
  • o Dependency – similar to neglect, but parent not at fault. The child has dependency on the state because the parents can’t provide for them.
  • o Termination of parentage:
    • o The parent is “unfit” EVEN if in the child’s best interests to stay w/ parent.