Family Law PDF

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MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... Quick jump menu Search  TASK IS COMPLETED  BACK TO TOP I. GETTING MARRIED Marriage is a civil contract. Similar to most contracts, marriage involves parties who are legally capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations. Conversely, unlike most contracts, a marriage contract cannot be modi ed or terminated without state intervention. Maynard v. Hill, 125 U.S. 190 (1888). A marriage is valid if there is a license and a solemnization of the marriage (i.e., a ceremony). There are typically two types of marriage recognized by law: ceremonial (or statutory) marriage and common-law marriage. A. Ceremonial Marriage A ceremonial or statutory marriage requires that the parties obtain a license to get married. The couple must meet several requirements to obtain this license. 1. Licenses a. Requirements 1) Age restrictions All U.S. jurisdictions impose minimum age restrictions on individuals who wish to marry. Almost all U.S. jurisdictions require an individual, in the absence of parental consent, to be at least 18 years old. Most U.S. jurisdictions permit individuals less than 18 years old to marry, generally requiring parental consent to, and/or judicial approval of the marriage. Statutory age requirements for marriage have withstood constitutional scrutiny. See, e.g., Moe v. Dinkins, 669 F.2d 67 (2d Cir. 1982) (the rational-basis test applies to the minimum age requirement to marry, and the state’s important interest in promoting the welfare of children by preventing unstable marriages among those who lack capacity is a legitimate state interest). 2) Waiting period Many U.S. jurisdictions impose a waiting period between the date on which a couple applies for a marriage license and its issuance date or that date and the date of the marriage ceremony. The waiting period may typically be waived by the court in cases of an emergency. 3) Premarital medical testing Some states also require a form of premarital medical testing. The requirements range from ling a health certi cate or certifying the absence of a venereal disease to the testing of blood for certain diseases, including measles, tuberculosis, and sickle cell anemia. While a state can mandate the testing, it cannot condition the issuance of the license on the results of the test. See T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993) (invalidating a Utah statute prohibiting the marriage of an HIV a icted individual as preempted by the Americans With Disabilities Act). 4) Expiration date By statute, most U.S. jurisdictions impose an expiration date on a marriage license. b. When not issued A marriage license will not be issued when: 1 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... i) One of the parties is married to someone else; ii) The parties are too closely related as de ned by statute; iii) The parties entered into the marriage as a sham; or iv) The parties are incapable of understanding the nature of the act. Model Marriage and Divorce Act (MMDA) § 207. Most jurisdictions further provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were under the in uence of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent due to duress or fraud. c. Same-sex marriage Same-sex couples may marry in all states. In addition, all states and the federal government must recognize a same-sex marriage legally entered into in another state. Obergefell v. Hodges, 576 U.S. 644 (2015); U.S. v. Windsor, 570 U.S. 744 (2013). 2. Solemnization Most states do not prescribe a particular form of the marriage ceremony, but many require that any ceremony solemnizing the marriage be performed in front of at least two witnesses. Some states even allow for a proxy to stand in for one of the parties who cannot attend the ceremony if the party provides written authorization for the third person to act as a proxy. Additionally, in most jurisdictions, a judge, political o cial, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and led with the appropriate government o ce. B. Common-Law Marriage Common-law marriages are de ned as marriages when the parties: i) Agree they are married; ii) Cohabit as married; and iii) Hold themselves out in public as married. MMDA § 209. Unlike with a ceremonial marriage, no ceremony takes place and no license is issued for a common-law marriage. A common-law marriage is not valid if either party was married to someone else at the time that the common-law marriage was entered into. MMDA § 209. 1. Recognition of Common-Law Marriages Most states have abolished common-law marriages. Common-law marriages are recognized only in Colorado, the District of Columbia, Iowa, Kansas, Montana, Rhode Island, Texas, and Utah. Some states (Georgia, Idaho, Ohio, Oklahoma, Pennsylvania, and South Carolina) recognize common-law marriages that occurred within the state before a certain date. Even though most states do not permit common-law marriages, almost all states recognize common-law marriages entered into in a jurisdiction that does recognize such relationships. Despite the Full Faith and Credit Clause of the U.S. Constitution, which requires each state to give full faith and credit to the “public acts, records, and judicial proceedings of every other state,” the U.S. Supreme Court has recognized that states have greater freedom in applying the laws of another state in a particular circumstance than in enforcing a judgment by a court in another state. Baker v. General Motors Corp., 522 U.S. 222 (1998). Under con ict-of-law principles, a state need not recognize a marriage valid under the law of the place in which it was contracted if it violates a strong public policy of the state asked to recognize the marriage. Some jurisdictions recognize a common-law marriage when the parties had only a short, transitory visit to the permitting state, while other jurisdictions require that the parties be domiciled in the permitting state. Some jurisdictions consider the inquiry on an individual basis, weighing the harm to the claimant seeking recognition and the state’s policy against such marriage. 2 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... EXAM NOTE: On the bar exam, assume that the jurisdiction has abolished common-law marriage unless the question states otherwise. 2. Legal and Mental Capacity For a couple to enter into a common-law marriage, they both must have the legal and mental capacity to do so. To satisfy the legal capacity requirement, they must be old enough and not too closely related. The determination of mental capacity is the same used to determine eligibility to obtain a license in a ceremonial marriage (e.g., they must understand the nature of the act). 3. Intent Jurisdictions vary on the proof necessary to establish the requisite elements for a common-law marriage. See, e.g., Buford v. Buford, 874 So.2d 562 (Ala. 2004) (clear and convincing evidence); Callen v. Callen, 620 S.E.2d 59 (S.C. 2005) (preponderance of the evidence). The parties must produce evidence that they intended to enter into the marriage, and this must be evidenced by words in the present tense made for the purpose of establishing a valid legal marital relationship. Words in the future tense that indicate the parties agree to get married at a later date are not valid to show intent. In the event that the parties are unable to show evidence of their intent to marry in present-tense words, the court may look to cohabitation or reputation to determine if the couple holds or held themselves out as married. The courts, however, have consistently held that cohabitation alone does not support a common-law marriage. In re Thomas’ Estate, 367 N.Y.S.2d 182 (N.Y. Sur. 1975). C. Heartbalm Actions Traditionally, if a marriage failed to take place, the jilted party was permitted to le a heartbalm action, which is a civil suit for money damages based on the damage to the jilted party’s reputation when the engagement was broken. Abolished by the majority of states, only nine jurisdictions (Hawaii, Illinois, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah) currently recognize heartbalm actions, which include actions for breach of promise to marry, seduction, alienation of a ection, criminal conversation, and jactitation of marriage (falsely holding oneself out as married). EXAM NOTE: On the bar exam, assume that the jurisdiction has abolished heartbalm actions, unless the question states otherwise. D. The Marriage Relationship The relationship between spouses brings with it myriad rights and responsibilities, as well as constitutional privacy issues that are germane to married couples. As the marriage relationship and individual rights continue to evolve, new law will more than likely continue to develop. When it comes to disputes of intact families (e.g., how money is spent, how child raised), courts treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes. See Kilgrow v. Kilgrow, 107 So. 2d 885, 888-89 (Ala. 1958) (court refused to enforce premarital agreement that child attend a religious school). Note that spouses have an obligation to support one another. Consequently, a creditor who provides necessities to one spouse may be able to sue the other spouse for compensation. II. ENDING A MARRIAGE A valid marriage, including a common-law marriage, can be terminated only by annulment, divorce, or death. A. Annulment An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage). An annulment action involves two types of relationships: void and voidable. 1. Void Marriage A void marriage is treated as if it never happened. It does not need to be judicially dissolved and will not be legally recognized for any purpose. MMDA § 3 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 208. a. Prior existing marriage If either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, then the latter marriage is void. However, if one of the parties had a good-faith belief that the marriage was valid, then some states allow the marriage to become valid once the impediment is removed. Other states require that once the impediment is removed, the parties must continue to cohabit, and one party must still continue to believe in good faith that it is a valid marriage. 1) Good-faith belief in the death of a spouse Most states have adopted what is known as an “Enoch Arden” statute in bigamy cases. In those jurisdictions, there is a defense to bigamy if the parties had a good-faith belief that the previous spouse was dead. The courts di er in the treatment of such marriages. Some jurisdictions require a divorce proceeding from the original spouse once the existence of the spouse is determined as a prerequisite to validating the later marriage. 2) Presumption of validity There is a presumption that the latest marriage is valid. This presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into. b. Incest Incest is marriage or sexual relations between people related within the prohibited degree of kinship. All states restrict marriages by consanguinity (blood relationships), and nearly half bar marriages between rst cousins. Typically, most consanguinity statutes also prohibit marriages between relatives of half blood, and many prohibit it when the relationship is by adoption. But see Bagnardi v. Harnett, 366 N.Y.S.2d 89 (N.Y. 1975) (marriage between adoptive father and daughter permissible); Israel v. Allen, 577 P.2d 762 (Colo. 1978) (unconstitutional to prohibit adoptive siblings from marrying). c. Mental incapacity A person must be able to understand the nature of the marriage contract, and its duties and responsibilities, to enter into a marriage. Note that a marriage contract entered into during a lucid moment is valid, as long as the person understood the nature of the contract at the moment the contract was executed. 2. Voidable Marriage A voidable marriage is valid until one spouse seeks to legally void the marriage. There must be a judicial decree to dissolve the marriage. Grounds for a voidable marriage include age, impotence, intoxication, and fraud or duress. MMDA § 208. a. Age A party who is under the age of consent to marry and who did not seek the consent of his parents or the court may apply to have the marriage annulled. If the partner, however, is of legal age to marry, then the partner may not attack the validity of her marriage to an underage person. In many states, the declaration of validity may also be brought by the underage party’s parents or legal guardian. Many courts, however, will prohibit the ling of an annulment based on age once the party who was not of legal age has attained such age and continued to freely cohabit with the other party as a married couple. Example: A, who is 16, marries B, who is 21, in a state that requires parental consent or court approval when a party is under the age of 18. Neither consent nor approval is obtained. Until A reaches the age of 18, only A, her parents, or her legal guardian may seek an annulment. If A turns 18 before seeking the annulment, then the court will most likely deny the request. b. Impotence A marriage is voidable if one party is “naturally and incurably” impotent, unless the other party knew about the condition before the marriage. c. Intoxication 4 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... If either party was under the in uence of drugs or alcohol at the time of marriage, which made that party incapable of contracting into a marriage, then that marriage may be annulled. In most jurisdictions, however, the parties must be able to demonstrate that they did not ratify the marriage by continuing to voluntarily live with each other after the ceremony. d. Fraud, misrepresentation, duress, coercion, or force Most states permit an annulment when the marriage was the result of a fraud that goes to the essence of a marriage. To annul a marriage based on fraud, it must be based on present—not future—facts. Most courts require that the parties immediately cease living together once the fraud is discovered. Concealment of defective morals, character, habits, fortune, and temper are typically insu cient grounds for an annulment. Jurisdictions have di ered, however, on claims of misrepresentation when a woman has falsely claimed to be pregnant by a man, or on claims relating to a party’s religious beliefs. e. Lack of intent Most jurisdictions permit annulment when the parties participated in the marriage ceremony as an act of jest or hilarity and do not have the requisite intention to be bound by the act. Most courts annulling marriages in such circumstances have determined that the interest of the public would not be served by requiring the parties to remain married. This also includes cases in which the parties, in advance, agree to only some, but not all, of the conventional aspects of marriage, including sexual and emotional delity, economic interdependence, and commitment to the relationship. Often seen in cases with immigration issues, this type of marriage is commonly referred to as a “limited purpose” marriage. 3. Equitable Distribution of Property in an Annulment Just because a marriage is terminated by annulment rather than divorce does not mean that parties to annulled marriages have no rights. The party seeking the annulment still has a right to request an equitable distribution of property and, in some cases, spousal support. That party may also seek child support, custody, attorney’s fees, and other costs related to the dissolution of the marriage. Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage. 4. Children Children of an annulled marriage are nevertheless considered marital children. 5. Defenses When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment merely makes the marriage voidable, but it will not necessarily prevent the annulment. In annulling voidable marriages, courts recognize the equitable defenses of unclean hands, laches, and estoppel. 6. Putative Marriage Doctrine Most jurisdictions, either by statute or common law, have adopted a version of the putative marriage doctrine (also known as “putative spouse doctrine”). See, e.g., Williams v. Williams, 97 P.3d 1124 (Nev. 2004); In re Marriage of Himes, 136 Wash. 2d 707 (1998); Colo., Rev. Stat. Ann. § 14-2-111 (West 2003). The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found void due to an impediment. MMDA § 209. Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine, however, is normally invoked to provide equitable relief, including maintenance and property distribution. B. Divorce and Separation Divorce is a legal dissolution of a marriage. 1. Residency Requirement 5 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... Most states have a residency requirement that requires at least one of the parties to be a resident of the state. The required length of residency in a state before a party can le for divorce can turn on several factors, such as whether the couple was married in the state or the grounds for divorce happened in the state. 2. Grounds for Divorce Most jurisdictions recognize both fault and no-fault grounds for divorce, although a substantial minority recognize no-fault grounds as the only basis for a divorce. The no-fault statutes eliminate fault and wrong as grounds for dissolution. a. No-fault Every jurisdiction recognizes a no-fault ground for divorce. The majority of the jurisdictions require a party to allege that the marriage is irretrievably broken and there is no prospect of reconciliation (e.g., irreconcilable di erences). Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. About half the states require that the couple be separated for a speci c time (e.g., one year) prior to the ling of the divorce action. The fact that one spouse wishes to reconcile may lengthen the time period for obtaining a divorce, but it is not an absolute bar to a no-fault divorce. Most jurisdictions have abolished the traditional defenses to divorce. The only defense would be to deny the ground for the divorce. However, unless both parties agree, this is generally insu cient to prevent the divorce. b. Fault Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. Most jurisdictions retain some level of fault-based grounds, although some have removed it from the law since the adoption of no-fault grounds. The use of fault-based divorce grounds has decreased dramatically since the adoption of no-fault-based grounds in most jurisdictions, although fault is often considered when awarding maintenance. 1) Adultery Adultery is voluntary sexual intercourse with someone other than one’s spouse. Because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. It must be shown that a party had the opportunity and the inclination to commit adultery. The facts of the case must provide enough evidence to conclude that the person was guilty of the adulterous act. 2) Cruelty To prevail on the grounds of cruelty or inhumane treatment, most jurisdictions require that the plainti demonstrate a course of conduct by the other party that is harmful to the plainti ’s physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty. 3) Desertion Desertion (also called “abandonment”) results when one spouse, without cause or the consent of the other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis. Most jurisdictions require that the abandonment be for a statutorily designated period of time. Some jurisdictions also nd desertion when one spouse forces another out of the marital home, and there is a fear of harm if that spouse returns. If the parties separate by mutual consent, the ground of desertion will not apply. 4) Habitual drunkenness Some states permit habitual drunkenness as a ground for divorce if it is the frequent habit of getting drunk that causes impairment in the marital relationship. There is no requirement that the defendant be an alcoholic or that she be constantly under the in uence of alcohol, but more than an occasional level of intoxication is required. A possible defense to the grounds of habitual drunkenness may be assumption of the risk. 5) Bigamy Bigamy, which in most jurisdictions is also grounds for annulment, occurs when one of the parties in the marriage knowingly entered into a prior legal 6 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... and existing marriage before entering into the current marriage. 6) Imprisonment Imprisonment of one spouse for a speci ed period of time may be grounds for divorce. 7) Indignity Indignity grounds arise when one spouse exhibits negative behavior toward the other that renders that spouse’s condition intolerable and life burdensome. Indignity can include: vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of in delity, sexually deviant behavior, serious temper tantrums, or violence. Although it is still available in some states, indignity is no longer recognized in the majority of states. 8) Institutionalization Institutionalization is grounds for divorce if a spouse’s insanity or serious mental condition results in her being con ned to a mental institution for a speci ed period of time prior to the commencement of the divorce, and there is no reasonable prospect of discharge or rehabilitation. 3. Defenses Defenses apply only to a fault-based divorce and must be a rmatively pleaded when asserted. a. Recrimination and unclean hands Recrimination occurs when both spouses have committed a marital wrongdoing of like conduct. In other words, because both parties were guilty of the same o ense (e.g., adultery) that would justify a divorce, a court could not grant the request. A similar defense is “unclean hands,” when the plainti ’s own behavior or acts are questionable. Both of these defenses are most commonly seen in desertion, adultery, or cruelty cases. b. Connivance Connivance is consent to or participation in the marital wrong, usually adultery (e.g., allowing or bene tting from a spouse’s prostitution). c. Condonation Forgiveness of a spouse is a defense to a fault-based divorce. There must be knowledge of the misconduct and forgiveness of the misconduct, and the party must resume marital relations with the guilty party. It is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce. d. Collusion Collusion occurs when both spouses “conspired to fabricate” grounds for divorce. Collusion defenses are not as common since the adoption of no-fault grounds in many jurisdictions. e. Provocation If misconduct is provoked by the moving party, then it is not grounds for divorce. f. Insanity Insanity is a valid defense when one spouse does not know the di erence between right and wrong or lacks the ability to understand that an act is wrongful. g. Consent Consent is a defense to desertion or adultery. h. Justi cation 7 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... Justi cation grounds may be established if one party left the home because of the other’s misconduct. This is a defense to desertion. i. Religion A litigant that challenges a divorce on religious grounds will fail in all jurisdictions. 4. Limited Divorce and Separate Maintenance Limited divorce, known in some states as a “divorce from bed and board,” is recognized in most jurisdictions, but rarely used. When used, it is often for religious or medical reasons, as the parties do not sever the marital tie and are still considered legally married. They are, however, permitted to live apart. As with an absolute divorce, the court will determine support and property division. A separate maintenance action provides for a decree of support for a party, typically the wife and any minor children. It does not, however, authorize the parties to live apart. As with a limited divorce, the parties are still considered married and cannot remarry. 5. Finalizing Divorce When a divorce is initially granted, many states do not permit a divorce to be nalized until a speci ed period of time has elapsed. This is known as an “interlocutory” decree. During this interlocutory period, neither spouse can remarry. C. Mediation Mediation is a frequently used, less expensive, and often more e ective manner to resolve separation disputes. A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights. Discussions during the mediation process and the written agreement derived from the discussions remain con dential, unless both parties agree to their disclosure. The court may approve the agreement and make it part of the nal judgment. A mediator must conduct the mediation process in an impartial manner and disclose all and potential grounds of bias and con icts of interest. A mediator must facilitate the participants’ understanding of what mediation is. A mediator should recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly. Additionally, a mediator must structure the mediation process so that the participants make decisions based on su cient information and knowledge. D. Division of Property There are two methods relating to the distribution of assets in the United States: community property and equitable distribution. 1. Community Property Community property is a method for the distribution of marital assets that is used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The guiding principle behind community property is that marriage is a partnership. Most community- property states require an equal division of the marital property. 2. Equitable Distribution Most states follow a system of equitable distribution. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. Unlike a community-property division, an equitable distribution is not necessarily an equal division of marital assets. There are, however, a few states that presume that an equitable division is an equal division, but permit deviation when necessary to achieve a more equitable result. 3. Marital Property In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Some states subject all property owned by either spouse to equitable distribution (i.e., the “hotchpot” approach). The de nition of marital property is typically broadly applied and includes retirement bene ts and, under some circumstances, equity in nonmarital property. Classi cation of the appreciation in nonmarital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital and not subject to equitable distribution, then the burden is placed on that party to prove the assertion. 8 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... a. Exceptions to marital property Most states treat certain property as separate, rather than marital, property. Among the types of property treated as separate property are the following: i) Property acquired before the marriage or property acquired in exchange for property acquired before the marriage; ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage; iii) Property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses; iv) Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of nal separation; v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of nal separation; and vi) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received. Example: One spouse was in a car accident two years before the marriage. That spouse was granted a settlement of $200,000 for her pain and su ering and invested it in the stock market before the marriage. The $200,000 would not be marital property. b. Factors in the distribution of marital property Courts consider the following factors in the distribution of property: i) Length of the marriage; ii) Prior marriages; iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses; iv) Contributions to education; v) Needs for future acquisitions; vi) Income, medical needs, retirement of both spouses; vii) Contributions to increases in marital property, including homemaking and child-rearing services; viii) Value of separate property; ix) Reduction in valuation in marital property by one spouse; x) Standard of living; xi) Economic circumstances of each spouse at the time of divorce; and xii) Custodianship of any minor children. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property. However, dissipation of marital property may be a factor. Dissipation occurs when one spouse uses marital property for his sole bene t after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour. 4. Treatment of Speci c Types of Marital Property a. Professional licenses or degrees The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. Simmons v. Simmons, 708 A.2d 949 (Conn. 9 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 1998); but cf. Elkus v. Elkus, 572 N.Y.S.2d 901 (1 Dep’t 1991) (a professional degree is an asset subject to equitable distribution). Most courts look at advanced degrees or licenses as an acquisition of knowledge as opposed to a property interest. A court may, however, view an advanced degree or license as increased earning capacity, which may have an e ect on the determination of alimony. A court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse’s educational and related living expenses. This is often referred to as the "cost-value" approach. b. Retirement or pension bene ts Retirement or pension bene ts acquired during the marriage are considered marital property and are subject to equitable distribution. This includes military pensions. c. Personal-injury claim proceeds Jurisdictions di er on the treatment of proceeds from personal-injury claims and worker’s compensation claims. There are two basic approaches: 1) Marital property In some jurisdictions, if the cause of action accrues between the date of the marriage and the nal separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property—even if the claim is paid after the nal separation. 2) Separate and marital allocation Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, su ering, disability, and loss are considered the separate property of the injured spouse. Consortium losses are considered separate property of the non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property. d. Goodwill The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in some jurisdictions. e. Accumulated sick and vacation days Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held the following: (1) accrued vacation and sick days are marital property subject to division at the time of dissolution; (2) accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and (3) accrued vacation and sick days are not marital property. Presby v. Presby, 2004 Ohio 3050 (Ohio Ct. App. 2004) (accumulated days that can be cashed out are considered marital property to be distributed at the time of dissolution); Ryan v. Ryan, 261 N.J. Super 689 (1992) (when payment for the unused accumulated days was received at separation, it constituted marital property if the majority of the days were accrued during the marriage). f. Future interest A possible future interest in property (e.g., inheritance) is not distributable. g. Social Security Social Security bene ts are not subject to equitable distribution. Fleming v. Nestor, 363 U.S. 603 (1960) (applying accrued property rights to the Social Security system would deprive it of the exibility in adjustment that it demands). h. Post-separation property 10 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... In most states, property acquired by one spouse until a divorce is granted can be marital property. Some states treat property acquired by a spouse after permanently separating from the other spouse as separate property. Still other states draw the line between marital and separate property on the date that the divorce action is led. i. Stock options Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage. 5. Tax Consequences of Equitable Distribution Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee’s tax basis is the same as the transferor’s, and the property becomes taxable when it is sold. 6. Modi cation of a Property Division Award A property division under either approach is not modi able because it is based on the parties’ assets at the time of divorce. Changes in the parties’ circumstances after divorce are not considered once the award has been entered. III. FINANCIAL SUPPORT OF SPOUSES AND CHILDREN A. Spousal Maintenance Spousal support (also called maintenance or alimony) is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. Alimony payments can be made for a de nite or inde nite period of time. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy. 1. Factors Each jurisdiction provides by statute the criteria to be applied by the court in determining the eligibility and amount of a maintenance award. Most jurisdictions consider some or all of the following factors when determining the support award. a. Financial resources Courts consider the nancial resources of the spouse seeking support, including property to be awarded in the divorce and any child support. They also take each spouse’s earning potential into account, as well as the ability of the spouse from whom support is sought to pay. b. Standard of living The couple’s standard of living during the marriage is considered. c. Time Courts also consider the time it will take for a spouse to nd employment or to complete any education or training necessary for a job. d. Length of the marriage The length of the marriage is considered in determining spousal support. e. Contributions to the marriage Contributions by one spouse to the marriage, particularly those that enhanced the earning potential of the other spouse (e.g., education, training), may be considered. f. Age and health The parties’ age and health, both physical and mental, is considered in determining support. 11 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... g. Marital misconduct Fault or marital misconduct may be taken into account in many states in determining spousal support. The weight that the marital misconduct is given in determining alimony is dependent on the jurisdiction, with some considering it as a factor and others giving it a preclusive e ect. See Stevens v. Stevens, 484 N.Y.S.2d 708 (3d Dep’t 1985) (marital fault may only be considered when the conduct of the recipient is egregious); 23 Pa. Cons. Stat. § 3701(b) (marital misconduct is one of 17 factors to be considered when determining alimony). 2. Types of Support Spousal support may be any of the following types: a. Lump sum A lump-sum spousal support award is a xed amount and may not be modi ed in the absence of fraud. b. Permanent Permanent alimony is an award for the remainder of the dependent spouse’s life, unless certain circumstances occur. The purpose behind permanent alimony is to compensate the dependent spouse for either the lost earning capacity or bene t conferred to the other spouse during the marriage. It is primarily used in cases in which one spouse remained out of the workforce for homemaking or child-rearing purposes. Permanent alimony is typically awarded only when the marriage was one of long duration. Although jurisdictions di er on the de nition of “long-term,” it typically refers to a marriage of 15 years or more. c. Limited duration Limited-duration alimony is established for a limited period of time. Unlike rehabilitative or reimbursement alimony (discussed below), its purpose is not to facilitate an increased earning capacity of the dependent spouse or to compensate a spouse who has sacri ced. Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate), but there is still an economic need for support. d. Rehabilitative Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse. For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period. e. Reimbursement The purpose of reimbursement alimony is to compensate a spouse for nancial sacri ces made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. Often, this type of alimony is awarded only in cases in which one spouse did not work in order to secure an advanced degree or professional license. It is rarely used, and unlike the other forms of alimony, it is based on past contributions rather than present or future needs. Instead of reimbursement alimony, some jurisdictions treat this type of payment as property division. f. Palimony Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable, long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). The treatment of such cohabitation agreements and the resulting support of palimony vary among jurisdictions. A majority of jurisdictions distinguish between contracts that are based on sexual services and those in which the agreement is independent of the illicit relationship. Some courts also permit remedies to unmarried couples based on an implied-in-fact contract, resulting trust, constructive trust, or quantum meruit theories. In most states, the Statute of Frauds does not require that an express contract between cohabitants be in writing. 3. Modi cation of Support In general, spousal support may be modi ed, even when it has been deemed permanent. The party seeking modi cation typically has the burden of establishing a signi cant and continuing change in circumstances in the needs of the dependent spouse or nancial abilities of the obligor that warrant 12 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... the modi cation. Courts consider whether the change in circumstances was expected when the original support order was made, as well as the good faith of the party seeking modi cation. See, e.g., Pope v. Pope, 559 N.W.2d 192 (Neb. 1997). As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments. a. Death Spousal support generally continues until the death of a spouse. Support is usually not included as a liability of the deceased spouse’s estate, unless speci ed by the court. b. Remarriage In most jurisdictions, if the receiving spouse remarries, then spousal support may be terminated. A subsequent annulment of this marriage generally does not revive a spousal-support obligation from a former marriage, even though an annulment usually results in a marriage being treated as invalid as of the date of its inception. The marriage of the obligor spouse can constitute a change in circumstances that justi es the reduction in spousal support to the receiving spouse. c. Cohabitation If the receiving spouse cohabits with someone who is not family, then spousal support may be modi ed if the recipient spouse’s need for the support decreases as a result of the cohabitation. Support, however, typically is not automatically terminated, as the new cohabitant does not have a legal duty to support the alimony recipient. Cohabitation can also forestall the award of spousal support. The courts, however, will also consider the nature of the cohabitation, such as whether the cohabitation involves a sexual relationship. Cohabitation does not terminate alimony pendente lite, which is paid during the pendency of the divorce litigation. d. Retirement Jurisdictions di er on whether an obligor can seek a reduction in spousal-support payments upon retirement. Some jurisdictions hold that the parties should have addressed the issue during the divorce proceedings and deny modi cation, while other jurisdictions nd that the dependent spouse cannot expect to receive the same level of support after the supporting spouse retires. 4. Support During Marriage At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties’ station in life, including medically necessary care. Most jurisdictions have modi ed the necessaries doctrine to apply equally to both spouses, and often refer to them as “family expense” statutes. A minority of jurisdictions have abolished the doctrine as a violation of equal protection rights. In those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment rst from the incurring spouse. Absent separation or divorce proceedings, courts are reluctant to order the payment of support between spouses during their marriage. Courts have cited to the common law doctrine of nonintervention in denying a petition for support while the couple is still married and living together as an intact family. See, e.g., McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953). B. Jurisdiction As with a court hearing other matters, a court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction. The Full Faith and Credit Clause applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree. Matrimonial courts have full equity powers in matrimonial actions, which include: i) Division of property; ii) Divorce or annulment; 13 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... iii) Custody; iv) Support and alimony; v) Award of attorney’s fees; vi) Enforcement of separation agreements; and vii) All other matters related to matrimonial actions. 1. Divisible Divorce Doctrine Under the doctrine of divisible divorce, also known as ex parte divorce, a court may have su cient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child- support issues without personal jurisdiction over the other spouse. If a court makes such a determination, the defendant can challenge the court’s orders due to the court’s lack of in personam jurisdiction over the defendant. Estin v. Estin, 334 U.S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). 2. Collateral Attack on Jurisdiction The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plainti either was not domiciled in the divorcing state at the time that the judgment was granted or left the state’s domicile immediately after the entry of the divorce. If the court had both personal and subject-matter jurisdiction over the parties, and the attacking party litigated or had the opportunity to litigate, then that person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although persons other than the party may collaterally attack a divorce if standing exists (i.e., a child), they will be precluded from attacking it if the third person is in privity with any party who would have been estopped from attacking the judgment themselves. 3. Issues Relating to Indigent Parties Courts cannot require that an indigent party pay costs and fees to access the court system. Such requirements are unconstitutional. Boddie v. Connecticut, 401 U.S. 371 (1971). Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney’s fees and costs if the party is unable to a ord the services of legal counsel. C. Child Support 1. Child’s Right to Support Child support is the payment by one parent to the other for the support of a common child. The duration of child support varies with each jurisdiction. In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children (i.e., unemancipated and 18 years of age or younger). Gomez v. Perez, 409 U.S. 535 (1973) (a state law that bases the existence of a support obligation on marital status violates Equal Protection). Some jurisdictions, however, continue that obligation through college. Additionally, child support can be continued, even inde nitely, for a child incapable of self-support, provided that the inability to support is linked to a physical or mental disability. The payment of child support is entirely separate from visitation rights. Such rights cannot be denied for nonpayment of support. Parents cannot bargain away child-support payments, regardless of whether they intended to have a child. Parents can enter into private agreements regarding the payments, but they cannot agree to any release or compromise that would negatively a ect the child’s welfare. In addition, the respective obligations of child support are adjusted as the physical possession of a child changes between parents. UIFSA § 102, cmt. 2. Nonmarital Children Nonmarital children historically were not entitled to paternal child support nor to inherit from their father’s estate. Courts now use an intermediate 14 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... scrutiny standard to analyze the constitutionality of government action, focusing on the purpose behind the distinction between marital and nonmarital children. As a result, child support, government bene ts, and wrongful-death claims may no longer be denied to nonmarital children, and nonmarital children may inherit from their father’s estate if paternity is established. Paternity may be established through a judicial decree or by other means, such as a man holding himself out as the child's father or consenting to be name on the child's birth certi cate. 3. Paternity The obligation of child support falls on the child’s parents. Questions may arise, however, as to the identity of the child’s father. Once his identity is established, the child’s father has rights to custody and visitation, but he is also under a duty to support the child. Paternity actions are con dential and not available to the public. a. Blood test When there is a question as to who is the father of a child, a court may order blood tests of the child and the possible fathers to determine paternity. If a defendant involved in a paternity matter is indigent, he is entitled to blood testing at the state’s expense to establish or disprove paternity. Little v. Streater, 452 U.S. 1 (1981). If the test disproves paternity, then the case seeking child support must be dismissed. b. Other evidence In addition to the blood test, evidence such as (i) prior statements regarding paternity by deceased family members, (ii) medical testimony on the probability or improbability of conception, (iii) the defendant’s acknowledgment of paternity, and, in some states, (iv) the resemblance of the child to the defendant is admissible to prove paternity. c. Unconstitutional time limit on a paternity petition A time limit on the ling of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government’s interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate children. Pickett v. Brown, 462 U.S. 1 (1982). The suit may be brought by the child or the child’s mother. The standard of proof varies by jurisdiction, but it could be as low as preponderance of the evidence or as high as clear and convincing proof. d. Marital presumption There is a marital presumption that a child born to a married woman is the child of that woman and her husband. Most states apply the presumption even when the wife is arti cially inseminated, provided that the husband gave his consent to the procedure, and the procedure is performed by a physician. In some states, a wife is estopped from denying her husband’s paternity of her child, but approximately half of the states permit rebuttal of the marital presumption if the husband is impotent, sterile, or lacked access to his wife. When rebuttal is permitted, some states permit a court to exclude evidence rebutting the presumption if rebuttal is contrary to the child’s best interests. e. Estoppel A husband who is not the biological father of his wife’s child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when: i) There is a representation by the husband that he would provide for the child; ii) The wife relied on his representation; and iii) The wife su ered an economic detriment as a result of the reliance (e.g., loss of opportunity to obtain child support from the child’s biological father). 15 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights. See R.W.E. v. A.B.K., 961 A.2d 161 (Pa. Super. 2008). However, some states have recently begun placing greater emphasis on the interests of men who have been erroneously identi ed as fathers. In these jurisdictions, a husband’s child support may be terminated, and paternity may be disestablished, without regard to a child’s nancial interests. See, e.g., Williams v. Williams, 843 So. 2d 720,723 (Miss. 2003); Ga. Code Ann. § 19-7-54 (2009). 4. Personal Jurisdiction Over an Out-of-State Parent With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state. The ways in which a court can obtain personal jurisdiction are: i) Personal service on the defendant parent; ii) Consent of the defendant parent, such as by entering an appearance in the action; iii) Past residency with the child in the state; iv) Past residency in the state and the provision of prenatal expenses or support for the child; v) Residency of the child in the state as a result of acts or directives of the parent defendant; vi) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; vii) The parent defendant asserted parentage in the putative father registry maintained by the state; or viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction. It is important to note that the U.S. Supreme Court has not yet spoken on the constitutionality of the UIFSA’s long-arm provisions. However, the Supreme Court has ruled that a custody determination may only be made through the exercise of personal jurisdiction. May v. Anderson, 345 U.S. 528 (1953). In determining the due process requirements governing the establishment of personal jurisdiction over a nonresident parent, the Supreme Court has employed the “minimum contacts” test, reversing a state-court ruling extending long-arm jurisdiction over a nonresident parent based on his consent to the permanent residence of the child in the forum state. Kulko v. Superior Court, 436 U.S. 84 (1978). The Supreme Court noted that due process requires an act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state before that state may exercise long-arm jurisdiction. Id. Several states, however, have upheld the UIFSA’s provision as meeting the requisite due-process requirements. See, e.g., Poindexter v. Poindexter, 594 N.W.2d 76 (Mich. Ct. App. 1999); County of Humboldt v. Harris, 254 Cal. Rptr. 49 (Cal. Ct. App. 1988). In so holding, state courts have relied on the voluntary nature of the sexual act or conduct; that conception is a logical result of that conduct; and the state’s strong interest in protecting its minor children in all regards, including nancially. As the obligation to support a child extends to at least the age of majority, there is no time limit on the assertion of jurisdiction under this statute. UIFSA § 201, cmt. In addition, the UIFSA states that a state court may exercise jurisdiction to establish a child support order if the petition or comparable pleading is led after a pleading is led in another state only if: (i) the petition or comparable pleading in the state is led before the expiration of the time allowed in the other state for ling a responsive pleading challenging the exercise of jurisdiction by the other state; (ii) the contesting party timely challenges the exercise of jurisdiction in the other state; and (iii) if relevant, the state is the home state of the child. UIFSA § 204. For the jurisdictional requirements for the modi cation of a child-support order, see § III.E.3., Jurisdiction for Modi cation of Support, infra. D. Amount of Child Support All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards. Child- support awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement bene ts, capital gains, and Social Security income. The guidelines are applied in all cases regardless of marital status. 16 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 1. Calculating Support a. Income-shares model Most jurisdictions have adopted an income-shares model, which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together. b. Percentage-of-income model Other jurisdictions have adopted a percentage-of-income model, which determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent’s net income, determined by the number of children supported. Certain expenditures, such as taxes or necessary medical expenditures, may be excluded when calculating net income. See, e.g., 750 Ill. Comp. Stat. 5/505. c. Melson formula The Melson formula is similar to the income-shares model, but it takes into account six speci c considerations, such as the minimum amount that each supporting parent must retain, the number of the supporting parent’s dependents, and a Standard of Living Adjustment (SOLA). See, e.g., Del. Fam. Ct. Civ. R. 52(c). d. Deviations from child-support guidelines In all jurisdictions, there is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. 42 U.S.C. § 667. Deviations, however, are permitted as the circumstances warrant. If the court determines that the amount set forth under the guidelines should be deviated from, it must set forth speci c ndings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award. Conversely, if the parent(s) earn a signi cant income far exceeding the needs of the child, the court may modify the award to provide solely for the child’s needs, but generously de ne the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended. 2. Other Considerations Additional factors that the courts consider in determining the amount of support include: i) Ages of the children; ii) Unusual needs and unusual obligations (e.g., special education); iii) Support obligations of the parties; iv) Assets of the parties; v) Medical expenses outside of insurance coverage; vi) Standard of living; vii) Duration of marriage, for spousal support or alimony pendente lite; and viii) Best interests of the child. 3. Medical Insurance In most jurisdictions, the cost of providing medical insurance for the child is included in the child-support award, if either of the parents has access to insurance. If there is no insurance available, then the court may include provisions for the procurement and payment of insurance after consideration of the medical needs of the child, the cost of the coverage, and the availability of a plan to meet the child’s needs. Any premiums associated with the medical coverage shall be subtracted from the net income of the parent who is responsible for the payment. E. Modi cation of Child Support 17 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 1. Modi cation of Support Most jurisdictions permit an award of child support to be modi ed. Although the statutory language varies, in general, modi cations are permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ nancial situation, and that change is expected to be continuing, rather than temporary. See, e.g., Tisdale v. Tisdale, 264 So. 3d 1105 (Fla. Dist. Ct. App. 2019). Examples include a parent’s change in occupation, remarriage of a parent who now has additional family obligations, increase in income, or a decrease in health. The burden to substantiate the change in circumstances is on the parent requesting the modi cation. Some jurisdictions, however, permit a modi cation to a support order after a certain passage of time, such as for a cost-of-living increase. Typically, a modi cation award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modi ed. 42 U.S.C. § 666(a)(9) (prohibiting retroactive modi cation of child support). a. Voluntary reduction in income The amount of child support generally may not be reduced simply because of a voluntary reduction in the obligor’s pay. In these circumstances, the court will usually set child support obligations based on the obligor’s earning capacity, which is the amount that the person could realistically earn under the circumstances in consideration of the person’s age, mental health, and physical condition. However, in some jurisdictions, a voluntary reduction of the obligor parent’s income may justify a reduction of child support obligations if certain conditions are met. All jurisdictions allowing a modi cation due to voluntary reductions in the obligor’s income require the obligor parent to show that the reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent. Some courts require an additional nding that the child will not su er a signi cant hardship from the modi cation. 2. Termination of Support A parent’s obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age). Some jurisdictions, however, have the authority to order support beyond the age of majority when the child is in college. An additional exception applies when an adult child is unable to support himself due to circumstances such as a mental or physical disability. In most jurisdictions, termination may also take place if the child marries, the parental rights are terminated, the child commences active duty in the military, or the parent or child dies. A court, however, does have the right to order that a parent obtain insurance on his life for the bene t of the children to provide future support after his death. Additionally, support may be terminated if a child is emancipated before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of in uence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. Also, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support. EXAM NOTE: If there is a question as to whether a minor child has been emancipated, discuss the totality of the circumstances. Emancipation of a minor is fact-speci c. 3. Jurisdiction for Modi cation of Support Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdiction rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution. 28 U.S.C. § 1738B(a) (Full Faith and Credit for Child-Support Orders Act); UIFSA § 205. As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi; all parties move to Minnesota; order may be registered in Minnesota). It is important to note, however, that if an aspect of a child-support obligation may not be modi ed under the law of the state that rst imposed the obligation, that aspect of the obligation may not be modi ed under the laws of any other state. UIFSA § 611, cmt. See also, C.K. v. J.M.S., 931 So. 2d 724 (Ala. Civ. App. 2005) (although the amount of child support may be modi ed, the length of the obligation may not be changed, as it is a nonmodi able aspect of the original order); Wills v. Wills, 745 N.W.2d 924, 926–29 (Neb. Ct. App. 2008). 4. Tax Consequences of Child Support In calculating tax liability, the payor may not deduct the support payment from income and the recipient is not required to include it in income. 18 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... F. Enforcement of Awards Both child- and spousal-support orders are enforced through civil contempt orders, income withholding, or withholding of tax refunds. 1. Civil Contempt Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt and can be sent to jail and held until the amount owed is fully paid. Jurisdictions are currently split regarding whether the appointment of counsel is constitutionally required in civil contempt cases when the defendant is indigent. Cf. Rodriquez v. Eighth Judicial Dist. Court, 102 P.3d 41 (Nev. 2004) (Sixth Amendment right to counsel inapplicable); Pasqua v. Council, 892 A.2d 663 (N.J. 2006) (counsel for civil contempt obligors is required under the Due Process Clause and state constitution). 2. Criminal Contempt Criminal contempt is a speci c jail sentence imposed upon an obligor who willingly fails to pay the amount owed. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections. Hicks v. Feiock, 485 U.S. 624 (1988) (violative of the Fourteenth Amendment Due Process Clause to place the burden of proving an inability to make support payments on the defendant). 3. Other Sanctions Courts may impose other sanctions, such as issuing judgments, intercepting tax refunds, credit bureau reporting, suspending the obligor’s driver’s license or occupational license, seizing property or assets, garnishing the noncomplying party’s wages, and ordering the payment of attorney’s fees. Additionally, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) permits the denial of a passport application when the noncustodial parent is more than $5,000 in arrears on his child-support obligation. PRWORA § 312. 4. Enforcement in Other Jurisdictions Every jurisdiction is required to have the Uniform Interstate Family Support Act (UIFSA) in e ect as a condition of participating in the federally funded child support programs. 42 U.S.C. § 666(f). UIFSA operates to simplify collection of support payments when the obligor or child resides in a jurisdiction di erent from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state. 28 U.S.C. § 1738B (Full Faith and Credit for Child Support Orders Act); UIFSA § 603(b). Only the issuing state may modify the original support order; the other state’s responsibility is simply to enforce the order. If there is no personal jurisdiction over the obligor, then there is a two-state procedure that can be employed. Under this approach, an enforcement order can be obtained in the other state by ling an enforcement petition in the initiating state that will be forwarded to the other state’s court. UIFSA § 203. EXAM NOTE: The modi cation and enforcement of interstate child support is always governed by the UIFSA, which has been adopted in every jurisdiction. If more than one state is involved in a question, always discuss the UIFSA. An order that does not comply with the UIFSA is not subject to enforcement under the Full Faith and Credit for Child Support Orders Act of the U.S. Constitution. G. Tax Consequences of Support The payor-parent cannot deduct child-support payments from income and the recipient-parent is not required to include them as income. The custodial parent automatically gets to treat the child as a qualifying child for tax bene ts unless the parties agree otherwise. The parent who pays a child's medical expenses may deduct those expenses. IV. CHILD CUSTODY A. De nition of Custody Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. Either or both of these types of custody can be shared under a joint custody arrangement. 19 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 1. Legal Custody Legal custody is the right of a parent to make major decisions, as contrasted with everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed. 2. Physical Custody Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement. 3. Joint Custody Joint custody generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. Usually, joint custody is not imposed over the objections of one parent, but, even when it is, the arrangement must meet the best-interests-of-the-child standard. Under a typical joint legal custody arrangement, neither parent has a superior right to make major decisions; instead, joint custody arrangements typically spell out a procedure for resolving con icts. Joint legal custody is the outcome in the majority of cases. In fact, many jurisdictions have a statutory presumption in its favor. Joint physical custody does not necessarily require a 50-50 time-sharing arrangement. It encompasses any situation in which the child maintains a residence at the home of each parent and spends a signi cant amount of time with each parent. B. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. All states except for Massachusetts have adopted the UCCJEA. Adjudication under the UCCJEA requires that the court possess subject-matter jurisdiction. 1. Initial Custody Determination (Home-State Jurisdiction) A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state: i) Is the child’s home state (the state in which the child has lived with a parent or guardian for at least six consecutive months immediately prior to the custody proceeding, or since birth, if the child is less than six months old); or ii) Was the child’s home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state. 2. Signi cant-Connection Jurisdiction A court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a signi cant connection with the state, and (iii) there is substantial evidence in the state concerning the child’s care, protection, training, and personal relationships. 3. Default Jurisdiction If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction. 4. Exclusive-Continuing Jurisdiction Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: i) The parties no longer reside in the state; or ii) The child no longer has a signi cant connection to the state, and any substantial evidence connected to the child’s condition is no longer available in the state. 20 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 5. When Courts Can Decline Jurisdiction If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it nds the forum to be inconvenient after considering the following factors: i) Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child; ii) The length of time the child has resided outside of the jurisdiction; iii) The distance between the competing jurisdictions; iv) The parties’ relative nancial circumstances; v) Any agreement of the parties regarding which state should assume jurisdiction; vi) The nature and location of the evidence required to resolve the pending litigation, including the child’s testimony; vii) The ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence; and viii) The familiarity of each state’s court with the facts and issues in the pending litigation. A court may also decline to exercise its jurisdiction if a party has “engaged in unjusti able conduct,” such as wrongfully removing a child from another state. 6. Temporary Emergency Jurisdiction A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, then the emergency order remains in e ect until a decision is rendered by the child’s home state. If no future determination is made, then the emergency order continues in full force and e ect. 7. Enforcement of Another State’s Orders a. Registration of order A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certi ed copy of the order from the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order. b. Expedited enforcement of a child-custody determination The UCCJEA uses a process similar to habeas corpus. After a petition is led, the respondent must appear in person at a hearing held on the rst judicial day after service of the order or, if that date is impossible, on the rst judicial day possible. The petitioner will be awarded immediate physical possession of the child unless: i) The custody or visitation order was not registered; and a) The issuing court did not have jurisdiction; b) The order had been stayed or vacated; or c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or ii) The order was registered and con rmed, but the order was stayed, vacated, or modi ed. c. Warrant for child custody 21 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... The court may issue a warrant, upon a petitioner’s request, for the petitioner to take physical possession of a child if it nds that the child is likely to su er serious physical injury or be removed from the state. d. Law enforcement The UCCJEA allows any law-enforcement o cial to take any lawful action to enforce a custody order or obtain the return of a child (i) if the o cial believes that the person holding the child has violated a criminal statute, or (ii) if requested to do so by a court of law. 8. Uniform Deployed Parents Custody and Visitation Act The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) integrates with the UCCJEA but applies speci cally to parents who are also service members. Among other things, the UDPCVA provides that when imminent deployment is not an issue, courts cannot use a parent’s deployment as a negative factor in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent’s consent. C. Uniform Child Custody Jurisdiction Act (UCCJA) Enacted prior to the UCCJEA, the UCCJA was established to create a uniform system to resolve interstate custody matters. Although the UCCJA was adopted by all 50 states, by the time of its adoption, Congress had enacted the Parental Kidnapping Prevention Act (PKPA), which con icted in application with the UCCJA despite its common goal. In its original form, the UCCJA operated on principles that established jurisdiction over a child- custody case in one state and protected a custody order of that state from being modi ed in any other state as long as the original state retained jurisdiction. Unlike the UCCJEA and the PKPA, the UCCJA did not give rst priority to the home state of the minor child. Similar to the PKPA, the UCCJA did not address enforcement of visitation rights. Almost all states have now replaced the UCCJA with the UCCJEA. D. Parental Kidnapping Prevention Act (PKPA) The PKPA, despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any con icting state law. See, e.g., Murphy v. Woerner, 748 P.2d 749 (Alaska 1988). The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises. 28 U.S.C. § 1738A. If a jurisdiction fails to follow the PKPA’s rules regarding jurisdiction, which are substantially similar to the UCCJEA rules (see § IV.B., Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), supra), the order of the noncompliant jurisdiction is not entitled to full faith and credit. The International Parental Kidnapping Crime Act (IPKCA) prohibits a parent from taking a child outside the United States and obstructing the other parent’s physical custody of the child. The Hague Convention requires the return of a child wrongfully taken or retained in a foreign country, and it allows the custodial parent to le suit. The exception to this is if bringing the child back into the country would expose the child to grave physical or psychological harm. E. Best-Interests-of-the-Child Standard The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined un t. There is no longer a presumption for custody in favor of the mother. Many courts consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. See, e.g., Garska v. McCoy, 167 W.Va. 59 (W. Va. 1981); but cf. Gianvito v. Gianvito, 975 A.2d. 1164 (Pa. Super. 2009) (the primary-caretaker doctrine not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past). The primary-caretaker factor is based on a child’s need for a stable and continuous relationship with the primary parent. EXAM NOTE: For any fact pattern about a proceeding involving children, be sure to discuss the best-interests-of-the-child standard in determining custody. 22 of 32 6/26/2024, 10:10 MyThemis Learners https://www.themisbar.com/learners/index.php?service=subjectoutline&... 1. Race or Religion In most jurisdictions, the courts cannot use race or religion as factors in determining custody. 2. Parents’ Sexual Conduct In many, but not all, jurisdictions, courts may not consider the parents’ prior sexual conduct, including gay or lesbian relationships, in making a custody decision, unless it can be determined that the conduct of the parent has or will have a negative e ect on the child. 3. Third-Party Rights Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is un t or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or