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Family Law Course Outline: Marriage, Family, and Property Rights, Lecture notes of Law

This course outline provides a comprehensive overview of family law principles, focusing on the legal definition of family, the importance of family status, and the complexities of marital property rights. It delves into landmark cases like hewitt v. Hewitt, braschi v. Stahl associates company, and mcguire v. Mcguire, illustrating the evolving legal landscape surrounding family relationships and property ownership. The outline also explores the historical development of marital property laws, including the married women's property acts, tenancy in the entirety, and community property systems. It examines the legal implications of cohabitation, the doctrine of necessaries, and the constitutional limits on gender-based classifications in family law.

Typology: Lecture notes

2015/2016

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Family Law Fall 2005
Course Outline Prof. Carbone
I. Marriage and Its Alternatives
A. When are Adult Partners a Family? (Chapter 1)
1. 4 main legal questions/debates
a) Should the law make distinctions among people based on their
family status at all?
b) When family membership matters, how should it be determined?
By blood relationships or legal ceremony or by function?
c) If a family is defined by function, what kinds of behavior indicated
that people belong to a family?
d) What are the roles of the legislature and judges in making these
determinations?
2. Hewitt v. Hewitt (1979 Illinois) [should the law make a bright line
between married and nonmarried cohabitors?]
a) Couple got pregnant during college and thereafter held
themselves out as married (she even took his name); they never
married but H promised to “share his life, his future, his earnings and
his property” with W; W’s claims for ½ property are unenforceable as
contravening public policy (potential of enhancing the attractiveness
of private arrangements); state Act also provides that common law
marriages are invalid
b) “The issue of unmarried cohabitants’ mutual property rights,
however, cannot be characterized solely in terms of contract law, nor
is it limited to considerations of equity or fairness as between the
parties to such relationships. There are major public policy questions
involved in determining whether, under what circumstances, and to
what extent it is desirable to accord some type of legal status to
claims arising from such relationships.”
3. Braschi v. Stahl Associates Company (1989 New York)
a) Two men lived together as “spouses,” in a rent-controlled
apartment, when one dies the other is evicted as not part of the
family; Court rules, based on a functional definition of a family, that
he is “family” and allows him to stay
(1) Court noted the length of the relationship, how they held
themselves out to the world, beneficiaries of life insurance,
sharing of finances, and exchanged in contract
(2) But, dissent says the plurality has expanded the definition of
family to a class that includes anyone who can say she or he
had an emotional and financial ‘commitment’ to the statutory
tenant
4. Zoning ordinance cases:
a) City of Ladue v. Horn (1986 Missouri)
(1) Ladue’s zoning ordinances No. 1175: certain zones were
designated as single family residential zones. “Family”= one or
more people related by blood, marriage or adoption, occupying
a dwelling unit as an individual housekeeping.
(2) The two adults were not married, but shared a common
bedroom, maintained a joint checking account for the
household expenses, ate their meals together, and disciplined
each other’s children.
(3) The adults argue that the zoning statute isn’t constitutional
because it violates their fundamental rights (there is a
fundamental right to marry, but is there a fundamental right to
a family?)
Updated 12.6.2005
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Download Family Law Course Outline: Marriage, Family, and Property Rights and more Lecture notes Law in PDF only on Docsity!

Course Outline Prof. Carbone

I. Marriage and Its Alternatives A. When are Adult Partners a Family? (Chapter 1)

  1. 4 main legal questions/debates a) Should the law make distinctions among people based on their family status at all? b) When family membership matters, how should it be determined? By blood relationships or legal ceremony or by function? c) If a family is defined by function, what kinds of behavior indicated that people belong to a family? d) What are the roles of the legislature and judges in making these determinations?
  2. Hewitt v. Hewitt (1979 Illinois) [should the law make a bright line between married and nonmarried cohabitors?] a) Couple got pregnant during college and thereafter held themselves out as married (she even took his name); they never married but H promised to “share his life, his future, his earnings and his property” with W; W’s claims for ½ property are unenforceable as contravening public policy (potential of enhancing the attractiveness of private arrangements); state Act also provides that common law marriages are invalid b) “The issue of unmarried cohabitants’ mutual property rights, however, cannot be characterized solely in terms of contract law, nor is it limited to considerations of equity or fairness as between the parties to such relationships. There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships.”
  3. Braschi v. Stahl Associates Company (1989 New York) a) Two men lived together as “spouses,” in a rent-controlled apartment, when one dies the other is evicted as not part of the family; Court rules, based on a functional definition of a family, that he is “family” and allows him to stay (1) Court noted the length of the relationship, how they held themselves out to the world, beneficiaries of life insurance, sharing of finances, and exchanged in contract (2) But, dissent says the plurality has expanded the definition of family to a class that includes anyone who can say she or he had an emotional and financial ‘commitment’ to the statutory tenant
  4. Zoning ordinance cases: a) City of Ladue v. Horn (1986 Missouri) (1) Ladue’s zoning ordinances No. 1175: certain zones were designated as single family residential zones. “Family”= one or more people related by blood, marriage or adoption, occupying a dwelling unit as an individual housekeeping. (2) The two adults were not married, but shared a common bedroom, maintained a joint checking account for the household expenses, ate their meals together, and disciplined each other’s children. (3) The adults argue that the zoning statute isn’t constitutional because it violates their fundamental rights (there is a fundamental right to marry, but is there a fundamental right to a family?)

Course Outline Prof. Carbone

(a) “Ladue’s zoning ordinance is rationally related to its expressed purposes and violates no provision of the Constitution of the United States.” (b) “Maintenance of a traditional family environment constitutes a reasonable basis for excluding uses that may impair the stability of that environment and erode the values associated with traditional family life.” (4) “A man and a woman living together, sharing pleasures and certain responsibilities, does not per se constitute a family in even the conceptual sense. To approximate a family relationship, there must exist a commitment to a permanent relationship and a perceived reciprocal obligation to support and to care for each other.” b) Moore v. City of East Cleveland (case within Ladue , 1977) [importance of family was reaffirmed] (1) Supreme Court was confronted with a housing ordinance that defined a “family” as only certain closely related individuals. (2) Consequently, a grandmother who lived with her son and her two grandsons was convicted of violating the ordinance b/c her two grandsons were first cousins rather than brothers. (3) The Court struck down the East Cleveland ordinance for violating the freedom of personal choice in matters of marriage and family life. (4) The Court distinguished Belle Terre by stating that the ordinance in that case allowed all individuals related by blood, marriage or adoption to live tighter; whereas East Cleveland, by restricting the number of related person who could live together, sought to “regulate the occupancy of its housing by slicing deeply into the family itself.”

  1. Borough of Glassboro v. Vallororsi (1990, New Jersey) a) A group of college students live together in a house that one of the kid’s parents bought…is this a family? (1) b/c in 1986 an amendment was made to the zoning ordinance that said the zoning ordinance would accept functional definitions of family rather than standard definition (blood, marriage, adoption) b) court concludes this is a family under the functional definitiondemonstrate a clear preference for zoning provisions that equated the term “single family” with a “single housekeeping unit.” (1) Definition of single housekeeping unit “persons living together as a stable and permanent living unit, being a traditional family unit or the function equivalency thereof.” B. The Importance of Being a Family (Chapter 2)
  2. Introduction: the next materials consider the meaning of a couple being legally regarded as a family and the tension between a traditional view of the family as a unit and a more recent tendency to view the family as an association of independent actors.
  3. Marital Property a) Ownership and Control of Wealth : two systems: “those in which H and W own all property separately except those items that they have expressly agreed to hold jointly and those in which H and W own a substantial portion or even all of their property jointly unless they have expressly agreed to hold it separately.” (1) Modern Era

Course Outline Prof. Carbone

(b) Why did the court interfere in Buckstaff , but not McGuire? B/c a third party, the creditor, was involved in Buckstaff. The court needs to protect the creditor, so who should be responsible? Certainly not Mrs. Buckstaff! (So, that leaves Mr. Buckstaff!) (c) Doctrine of necessaries: (i) H had a CL duty to provide necessaries to his W and children; designed to protect married women who surrendered their property to their Hs. (ii) 4 schemes for necessaries (a) CL: H liable for W, not vice versa (b) Wisconsin: H primarily liable, W secondarily liable (c) Joint and several liability (community property approach) (d) W primarily liable, H secondarily liable

  1. Constitutional Limits on Gender-Based Classifications a) PROBLEM p. 85: (1) Assume that your office represents Dr. Willa Sanchez, an oral surgeon. She has recently treated ms. Alicia Duran, whom she has also know socially for some time. Dr. Sanchez has billed Ms. Duran $2300 for this surgery but would prefer to collect from Ms. Duran’s husband, Roberto. Ms. Duran has been married to Roberto for five years. Before and during her marriage, Ms. Duran has been employed as a caseworker in the state Department of Human Services. She is well on her way to achieving a Master’s of Social Work degree. Mr. Duran is a contractor and native of Florida. The construction business has been on the decline, and he wants to move back to Florida where the business continues to thrive. Mrs. Duran doesn’t want to go. Three months ago, Mr. Duran took the care and most of their liquid assets with him to Fort Lauderdale. Ms. Duran has been able to manage her expenses, except for the oral surgery. He refuses to pay and wants to cut off financial responsibility, w/out divorce. (2) Relevant Statutes : (a) §1. Both Ws and Hs have the duty to support each other during marriage. However, when either party to a marriage incurs a debt for purchase of an item or service that is reasonably necessary to maintenance of the household the H shall be primarily liable for that debt and the W shall be secondary liable for that debt. (b) §2. Notwithstanding the provision of §1, there shall be no liability for debts incurred by a spouse if the spouse incurring the debt has been given adequate resources to purchase the item or service, nor shall a H be liable for the debts incurred by his W if she has abandoned the marital home. (3) Who’s liable for the bill? 3 possibilities: (1) joint and several liability (either party can spend all the marital assets and then either party is liable); (2) each is responsible for his/her own debt w/ the other party secondarily liable; (3) H is always

Course Outline Prof. Carbone

primarily liable and W secondarily liable ( gendered assignment of responsibilities ) (4) Usually choose immediate scrutiny in these cases (usually say it’s unconstitutional to discriminate on the basis of sex, but not always) (a) Are the problem statutes constitutional? § probably isn’t b/c it doesn’t serve an important governmental interest and instead perpetuates gender stereotypes (b) Madden’s hornbook from 1931 supports statute §2 , but is that constitutional? Under the CL she abandoned him. There is a governmental interest to preserve family stability, but is this statute narrowly tailored to the statute? (i) While under the CL, it could be said that she abandoned the marital home, the question would be, where is this marital home? (a) A few options: (1) once domicile is established, joint consent is needed to change it; (2) either party can moveno marital domicile really exists; (3) husband determines domicile (this option is unconstitutional, though)

  1. Spousal Contracts During Marriage a) Borelli v. Brusseau (1993, California) (1) Oral agreement that W will take care of H instead of leaving him in a nursing home if H leaves all property to W; court says there is a pre-existing duty of support and that there is no consideration in a K for support, so there is no valid/enforceable K; court does not want to deal w/ these kinds of cases and upholds the prenup to protect the estate for the children— similar to McGuire (marital unit includes duty of support) b) Pacelli v. Pacelli (1999, New Jersey) (1) Couple enters into a mid-marriage agreement for property settlement ($500k upon divorce even though he was worth $14M). She wanted to sign anything to prevent divorce. Court finds the K inherently coercive and unenforceable; H created “marital crisis” to take advantage of W. (2) Court says that “reconciliation” agreements are enforceable: a promise that induces reconciliation will be enforced if it is fair and equitable. (3) Court says prenup agreements will be enforced if both parties are in equal bargaining positions and the agreements are carefully analyzed. II. Entering Marriage A. Intro/Formalities
  2. What one needs to get married under the Uniform Marriage and Divorce Act §203: a) Satisfactory proof of age (license); and b) Satisfactory proof that the marriage is not prohibited; c) Maybe a certificate of the results of any medical examination required by the laws of the State
  3. §206 of the Uniform Marriage and Divorce Act: get a judge/public official to have the marriage solemnized

Course Outline Prof. Carbone

right to marrystate regs substantially burdening access to marriage will be subject to strict scrutiny; also noting the right to privacy under the 14th^ Amendment Due Process Clause, finding the statute not narrowly tailored to the gov’t interest (2) Loving v. Virginia (1967 Supreme Court, Virginia): Virginia’s miscegenation laws prevented an interracial couple from getting married; leading case saying that marriage is a fundamental right; both a Due Process and Equal Protection case b) Claifano v. Jobst (1977, Supreme Court) (1) Law that dependent child who marries someone not entitled to similar benefits loses his/her benefits; Court finds that he law restricts the ability to marry but does not prohibit it; Court applied rational-basis standard b/c ppl were deterred by the rule, but not limited in their access to marriage

  1. Particular Restrictions a) Monogamy (1) Potter v. Murray City (1985, 10th^ Cir. Utah) (a) Challenge to Utah’s proscription against polygamy by a Mormon. Monogamy found to be a substantial state interest; right to privacy will not be extended to polygamy; free exercise of religion doesn’t help either after Reynolds (held polygamy is wrong and not allowed by the free exercise of religion clause) (b) why can’t one claim a fundamental right is violated? b/c you can still get married, just not to a man who already has a W b) Relationship (1) State v. Sharon H. (1981, Delaware) (a) Half-sister and brother (same mother, different fathers; met in adulthood) were married, Delaware law prohibits marriage between bro and sis (consanguinity statutes prohibit marriages between blood relatives in the lineal, or ascending and descending lines); court rules that subsequent adoption does not end blood ties to biological relatives c) Different Sexes (1) Goodridge v. Department of Public Health (2003, Massachusetts) (a) s were lesbian couples and had all been in committed relationships for at least 4 years (longest was 30 years), many had dependents; they all tried to obtain a marriage license and were denied on the basis that MA doesn’t recognize same-sex marriage (b) Challenge based on the MA state constitution; marriage has many benefits (rights, benefits/commitment/relationship stability/children/family); the court found that the statute couldn’t satisfy the rational-basis test and so MA may not deny marriage, under its state constitution to same sex couples and then in early 2004, the court ruled that “civil unions” wouldn’t pass constitutional muster; so on May 17, 2004, MA became the first state to permit same-sex marriage

Course Outline Prof. Carbone

(c) Three rationales for prohibiting same-sex marriage: (1) procreation (2) child rearing (3) preserving scarce State resources d) Age (1) In re Barbara Haven (1953, Pennsylvania) (a) 14 year old girl wants to marry 22 year old stepbrother; the law should not consent to the marriage of those under 16 except in the most compelling of circumstances (b) Youthful marriages correlate w/ lower income, higher unemployment, and lower satisfaction w/ financial condition

  1. Conflict of Laws a) Traditional RuleLaw of place of celebration b) Restatement of Conflicts: (1) In the absence of a statutory directive as to a choice of law, the validity of marriage is determined by the state which has the “most significant relationship to the spouses and the marriage” c) Some states have a version of the Uniform Marriage Evasion Act, nullifying all marriages entered into in another state for the purpose of evading their home state restrictions on marriage d) In re May’s Estate (1953, New York) (1) Marriage between uncle and ½ niece, valid in Rhode Island but not recognized in NY where the law declares such a marriage to be incestuous and void; court finds that the marriage should be recognized (2) GR: marriages that are lawful where celebrated are deemed to be lawful everywhere (a) Exceptions: (i) Prohibition of positive law (ii) Violates the strong public policy of the state e) Catalano v. Catalano (1961, Connecticut) (1) Uncle and niece married in Italy, voided as against public policy and in light of a statute that declared such marriages to be void (a) Differences from May (i) Shorter duration, marriage in another country (ii) Severe criminal penalties denote strong public policy (iii) Full relationship rather than ½ f) Wilkins v. Zelichowski (1958, New Jersey) (1) the couple resided in Jew Jerse; they could not marry there b/c the W was under 18; romantically, they ran away from home and married in Indiana, whose laws did permit women under 18 to marry; they returned to NJ shortly after a child was born (2) The Supreme Court of NJ held that NJ was the only state w/ an interest in the martial status and that recognition of the marriage would conflict w/ that state’s strong public policy (3) Issue of NJ being offended by the couple running away just to evade the laws of their home state and then coming back to use the resources of that state g) Full Faith and Credit Clause

Course Outline Prof. Carbone

a) Spearman v. Spearman (1973, 5th^ Circuit) (1) Ed Spearman died, leaving a life insurance policy of $10K; the policy said if no beneficiary listed, the proceeds were to be paid to the “widow” of the insured; after the death, two women claimed to be his wife and to be entitled to the life insurance proceeds (2) GR: a 2nd^ marriage cannot be validly contracted if either spouse is then married (even for CL marriage) b) Putative Spouse Doctrine: one whose marriage is legally invalid but who has engaged in a marriage ceremony or solemnization , on the good faith belief in the validity of the marriage, can share in ½ proceeds of insurance upon death of spouse (1) Protects a spouse who believes in the validity of the marriage. A good-faith belief on the part of one or both spouses is required c) Burdens of proof (1) Presumption of validity of 2nd^ marriage; rebuttable by 1st^ W proving marriage and no divorce; rebuttable by 2nd^ W showing divorce C. Legal Alternatives to Marriage

  1. Judicially Created Solutions a) Marvin v. Marvin (1976, California) (1) Couple lives together, holding themselves out as married, W providing housewife duties; oral agreement for support invalidated as meretricious (like prostitution) and void as against public policy (and w/o consideration). Also an express or implied contract is difficult to show. b) In the Matter of the Estate of Roccamonte (2002, New Jersey) (1) He induces her to get a divorce although he doesn’t divorce his W; he supports her for years and promises to do so for life; upon his death she wants a share of the estate/support; the promise of support was at least implied if not expressed; court holds Roccamonte’s duty to provide monetary benefit was not discharged by his death (even those her duties were discharged by his death) and must then be discharged by his estate c) Connell v. Francisco (1995, Washington) (1) Court finds a meretricious relationship; court adopts a rule [the court evaluates (1) the interest each party has in the property acquired during the relationship; (2) makes a just and equitable distribution] requiring a just and equitable distribution of property following a meretricious relationship (a form of community property division)
  2. Statutory Solutions: Domestic Partnerships, Civil Unions, Reciprocal Beneficiary Relationships, and More a) Hawaii [reciprocal beneficiary relationships] (1) After litigation of sex discrimination, the state passed a constitutional amendment defining marriage as between men and women. The legislature then passed domestic partnership legislation (a) Must be legally prohibited from marriage (b) Reciprocal beneficiaries—doesn’t require same sex (mother and daughter could do it) (c) No support/marriage duties; severed by remarriage (easily entered into and easily dissolved)

Course Outline Prof. Carbone

b) Vermont [civil unions] (1) Created civil unions to deal w/ giving all citizens equal access to common marriage benefits (under the Vermont constitution) (a) Same sex couples only, duties same as married (b) Status created is same as marriage, parental rights (c) Divorce decree necessary c) California [domestic partnerships] (1) Domestic partnership legislation sneaks in under the radar post 9/11, also included recognition of parental status for second-parent adoption (issue of children’s rights instead of gay rights if got it passed) (a) Same sex couples or opposite sex over 62; co- residents (b) Same duties/benefits as marriage d) New Jersey [domestic partnerships] (1) Also liberal regarding recognition of unmarried parents; adopted legislation to deal w/ internal political issues (a) Same sex couples and therefore not able to marry, not related (b) Similar obligations, no mention of children IV. Property Division and Spousal Support A. Overview

  1. Historical Justifications of and Criteria for Economic Awards a) Debtate about whether “alimony” was in the nature of support or property division b) The demise of the fault-based system did generate a conceptual crisis for spousal support and property division orders by eliminating or limiting the effect of a finding of fault on the division of economic resources.
  2. Economic Orders in the No-Fault Era a) Support orders sought to end the relationship between formally married parties b) Drawing on social perceptions about the importance of women’s work in the (unpaid) domestic economy and the legal theory of community property, legislatures and courts came to regard assets acquired during marriage as the result of the contributions of both spouses (spousal contribution rather than according to title or beneficial ownership)
  3. Criticism of No-Fault Economics a) 10 years after the beginning of the “no-fault revolution,” critics began to argue that he revolution had cause unprecedented economic disaster for the women and children of divorce. (some argue it was always bad though) B. Property Division at Divorce
  4. Pure Equitable Distribution a) Judge has the discretion to divide all the property of both spouses as is “just and proper” or through some equivalent formula. Who had title during marriage may be relevant, but not determinative. b) Does no violate due process even though it allows a court to award one spouse property that was owned by the other during marriage (1) Four factors to use in this determination:

Course Outline Prof. Carbone

(a) Pereira v. Pereira (1909, California) [primarily community assets] (i) A reasonable return on the separate investment is calculated and treated as separate property, the remainder of the increase in value is community property [community property- separate property (separate assets +appreciation); remainder split 50/50] (ii) Should be used when the appreciation in value is primarily attributed to community efforts (b) Van Camp v. Van Camp (1921, California) [primarily separate assets] (i) A fair salary for the labor of the spouse is calculated; if the spouse was paid less than this amount, the community receives enough of an increase to make up the difference, and the rest of the increase in value is separate property [separate property –uncompensated community contribution; remained goes entirely to the spouse] (ii) Should be used when the primary cause for appreciation was market factors and the like (c) For Exam: Two ways to proceed: (i) MOST IMPORTANT: decide if an asset is primarily community or primarily separate (ii) If primarily community, subtract out separate property (iii) If primarily separate, subtract out community property (iv) Any labor that is compensated for during the marriage is community property, but any uncompensated labor is separate property (value it), then need to take that value and reimburse the community (so ½ goes to W if H is making the $) (v) If both parties have to step in and make something that was once really separate property into a prosperous business again, it can be considered community property and so needs to be split 50/ (d)

  1. Choice-of-Law Issues a) When spouses acquire property in one state but are divorced in another, choice-of-law problems may arise. b) Under traditional 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. (Which a homemaker W could get nothing in the new state which doesn’t recognize her contribution even though her previous state might have awarded her some of the assets.) c) To combat this inequity, Cal. Fam. Code §125, enacts a “quasi- community property” statute which provides that if property would have been community property had it been acquired in the state, it is

Course Outline Prof. Carbone

treated as community property for purposes of property division at divorce.

  1. Dividing Debts a) Most courts have assumed that they have authority to allocate responsibility for paying debts (they have discretion) b) Geldmeier v. Geldmeier (1984, Missouri) (1) H contested property award on grounds that W was awarded more assets while H was awarded more debts; court finds that only H had the ability to pay the debts and the court wanted to find a way to keep the children and W in the marital home (promotes stability)
  2. The Marital Home a) Common practice of ordering a division of the house but not requiring its immediate sale b) Studies find that the spouse w/ physical custody of the children is still likely to be awarded possession of the house, though the tendency is decreasing C. Spousal Support at Divorce (only happens in about 20% of cases, originally on breach of K theory)
  3. Changing Attitudes Toward Spousal Support in the No-Fault-Era a) Uniform Marriage and Divorce Act § (1) Reflects the clean break perspective that disfavors spousal support and a preference for using property division instead (they are final, eliminating subsequent modification problems and are more advantageous to the recipient to the payor rather than support) b) Turner v. Turner (1978, New Jersey) (1) Preference for rehabilitative alimony for a short period of time, long enough for the spouse to become self-sufficient c) In re the Marraige of LaRocque (1987, Wisconsin) (1) Small awards of short duration are becoming more unpopular (b/c limited-term maintenance is relatively inflexible and final, the court must take particular care to be realistic about the recipient spouse’s future earning capacity) (2) At a minimum, the parties cannot burden society by leaving a spouse destitute (on remand, hopefully a more reasonable time period to let her get back to the status of the marriage) d) ALI Principles (1) “Compensatory spousal payments” should be ordered to compensate a spouse for financial losses occasioned by marriage, rather than to relieve need (b/c more expensive to maintain two households) D. Divorce and New Property
  4. Pensions and other Employment-Related Benefits a) Laing v. Laing (1987, Alaska) (1) Pensions as compensation for labor during marriage; they are community property—the issue is valuation (2) Vested pensions are community property (a) Employer v. employee contributions (in a contributory plan where both contribute, the employee is entitled to his contributions even if he or she quits participating in the plan before retirement) (3) Unvested pensions are subject to division as well

Course Outline Prof. Carbone

  1. CA Code sets up a statutory formula to determine the amount of child support hat a parent is obligated to provide (CA Fam. Code §4055) a) CS= K [HN-(H%)(TN)] b) Child Support= (Income combined) [High earner’s income-(time HE has w/ child)(total net disposable income of both)] c) This has created a financial incentive to spend more time w/ the child d) After a certain dollar amount, the court has discretion to determine the amount since it is inevitably more than the child needs, no formula e) Courts encourage settlements involving trusts for child and education
  2. Most states also have a minimum statutory amount due (usually $50) B. The Prevailing Child Support Model
  3. Flat Percentage Guideline a) Wisconsin: child support orders are determined only on the basis of the obligor’s gross income and the # of children to be supported. The %s of obligor gross income allocated to child support are 17% for 1 child, 25% for 2 children, 29% or 3 children, 31% for four children, and 34% for 5+
  4. Income Shares Model a) 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 b) Three steps: (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 and economic data on household expenditures on children, work-related childcare expenses, and extraordinary med expenses (3) The total obligation is then pro-rated between each parent based on their proportionate shares of income; obligor parent pays this much, oblige is supposed to spend this much directly on the kid
  5. Delaware Melson Formula a) Parents are entitled to keep sufficient income for their most basic needs to facilitate continue employment. b) Until the basic needs of children are met, parents should not be permitted to retain any more income than require to provide the bare necessities for their own self-support. c) 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. C. Particular Issues in Applying Child Support Formulas a) Peterson v. Peterson (1989, South Dakota) (1) Income counted for determining child support only includes amounts actually received, including funds that are used for repairs; look to both taxable income and real income (2) When the obligor makes above a certain threshold, here $1500 a month, then he’s considered a high-earner and the court has more discretion in the award (Emilio Estavez doesn’t need to disclose all that he makes, can just stipulate that he makes the top level) b) Colonna v. Colonna (2004, Pennsylvania)

Course Outline Prof. Carbone

(1) Shows what can happen w/ the residential parent’s income is substantially higher than that of the nonresidential parent (2) F sought to terminate child support now that he had primary care of children; court was very against terminating the F’s payment of child support, said the best interests of the child was the most important (3) Dissent, however, says this was just helping the M and that love, affection, was what the relationship between the kids and parents thrives on, not equal $ D. Modification, Termination, Enforcement and Tax & Bankruptcy

  1. Modification and Termination of Support a) Support duties terminate at the death of the obligor or recipient, although in some states it is possible to modify the award if the obligor dies (1) Foreseeable Changes in Circumstance (a) Courts almost never allow a spousal award to be increased solely b/c the payor later has an increased income (b) Courts rarely approve orders that automatically increase support as children grow older (c) Family Support Act provides for regular review process (2) Voluntary vs. Involuntary Decreases in the Payor’s Income (a) Involuntary decreases (lay-offs) are generally treated as sufficient reason to decrease support (b) Courts are not as tolerant of voluntary income reductions, but many courts permit such a change to decrease support if the occupational change was made in good faith. The existence of good faith becomes a question of fact. (i) Deegan v. Deegan (1992, New Jersey) (a) H took a voluntary early retirement and moved for an order to terminate alimony; court says early retirement is not a changed circumstance that will end obligation specifically looking at motives and effects on payee spouse (b) Person seeking modification of the decree has the burden of proof to show that on balance the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse (3) New Families—Spousal Support, Remarriage, and Cohabitation (a) A court will consider the payor’s remarriage if it places increasing demands on his financial resources. However, at the same time, a court may consider the income of the payor’s second spouse in the determination of the payor’s resources. (b) Recipient’s Changed Circumstances: (i) Remarriage : The remarriage of the recipient will terminate spousal support b/c the former H’s duty of support now has been replaced by that of the new H

Course Outline Prof. Carbone

case H’s remarriage gave him support duties for his stepchild in addition to outstanding support duties from 1st^ marriage) E. Enforcement

  1. Private Enforcement Mechanisms—Liens, Trust, and Insurance a) Resort to these remedies normally requires that the custodial parent obtain personal jx over the noncustodial parent or over his or her property. Such remedies don’t apply to collect future payments only to collect past ones.
  2. Jailing “Deadbeat” Parents a) The custodial parent may also institute a criminal proceeding for nonsupport based on state statute. All states have statutes that result in the imposition of criminal sanctions on noncustodial parents who fail to support or abandon their children. (1) The most common form=contemptholding the noncustodial parent in contempt who refuses to pay child support (incarcerating the parent until he or she pays or agrees to pay), but must be found to have the ability to pay before being found in contempt (2) Video b) Moss v. Superior Court (1998, California) (1) M brought action against the F to pay child support. He alleged he couldn’t pay because he was unemployed, but the M said he had refused to seek employment. (2) The appellate court overruled its previous holding in the Todd decision that a parent who refused to work could not be held in contempt.
  3. The State-Federal Child Support Enforcement Program a) In 1975, Congress enacted Title IV-D of the Social Security Act which created the federal Office of Child support Enforcement (each state must create a child support enforcement agency) b) Income withholding: (1) Permits an employer to pay an employee’s child support obligation directly to the other spouse on behalf o the child. c) Suspending licenses (driver’s, recreational, professional, etc.) d) Judicial authority to require obligors to post a bond to secure payment of overdue support e) Judicial authority to impose liens against real and personal property of amounts of overdue support VI. Child Custody A. Standards for Custody Determination
  4. “Best Interests” Standard a) Painter v. Bannister (1996, US, Iowa) (1) Child’s mother and sister were killed in car accident, grandparents took him to CA, F remarried and wanted custody back (2) Presumption of parental preference (a) This case had a preference for stability (b) If custody of preferred parent would be harmful or disruptive then the presumption of parental preference is rebutted—best interest (i) CA standard: preferential treatment towards parents unless detriment to the child ( detriment standard)

Course Outline Prof. Carbone

(c) F/son relationship developed between child and grandparents that did not exist w/ real F (d) Custody given to grandparents (3) The psychological parent (a) An adult who through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological as well as physical needs

  1. The Primary Caretaker a) Burchard v. Garay (1986, California) (1) F denies paternity, when it is prove he seeks custody; trial court grants it to him; no presumption b/ there is the best interest standard and parent v. parent (2) CA finds primary caretaker status relevant but not determinative, noting that the F is the more financially stable and “friendlier” spouse (more likely to offer visitation to the other parent) while M has stability and continuity (3) Presumption in favor of existing custody arrangement; higher burden of proof for changing an order than obtaining the original (4) Court reverses and grants to M despite new continuity issues that the child has been w/ the F for four years
  2. Joint Custody a) Until recently, sole custody was favored by courts; current changing attitudes (1) Joint legal custody : Joint decision making power (2) Joint physical custody : Refers to residence of the child (a) Taylor v. Taylor (1986, Maryland) (i) Distinction to be made between sharing parental responsibility in major decision-making matters and sharing responsibility for providing a home for the child (a) Legal custody carries w/ 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. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other (i) Parent not granted legal custody will, under ordinary circumstances, retain authority to make necessary day-to-day decisions concerning the child’s welfare during the time the child is in that parent’s physical custody (b) Physical custody means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually w/ the parent having such custody. Joint physical custody is in reality “shared” or divided” custody