Black Letter Outline on Family Law
Authors:
Krause, Harry D. / Meyer, David D.
Edition:
4th
Copyright Date:
2009
25 chapters
have results for family law
Appendix A. Answers to Review Questions 24 results (showing 5 best matches)
- Traditionally, federal courts have declined jurisdiction in family law matters. This abstention rule was recently reaffirmed by the U.S. Supreme Court. However, under specific statutes, family law matters may be heard (
- When the “family purpose doctrine” applies, parents may be held responsible for torts committed by their child while driving the family car. Beyond that, statutes commonly impose liability up to a certain amount on parents for certain torts committed by their children. Finally, parents may be liable for their own negligence in failing to supervise their child.
- Subsidized adoptions are available in many states to provide financial assistance to families who adopt a “hard-to-place” child. The legal relationship between the adopter and the adopted child is complete and permanent.
- The Uniform Reciprocal Enforcement of Support Act (URESA) permits a support action to be filed where the dependent resides. The action will be heard and enforced where the obligor resides. Any award collected is sent to the initiating court for disbursement. The newer Uniform Interstate Family Support Act (UIFSA) provides a similar procedure and, in addition, relies heavily on comprehensive long-arm provisions that give a court where the dependent resides exclusive jurisdiction if there is a “significant connection” to the obligor.
- A common law marriage that is valid where entered is generally recognized in all other states, even in those that have abolished common law marriage.
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III. Cohabitation Without Marriage 13 results (showing 5 best matches)
- “No language in the Family Law Act addresses the property rights of nonmarital partners, and nothing in the legislative history of the act suggests that the Legislature considered that subject. The delineation of the rights of non-marital partners before 1970 had been fixed entirely by judicial decision; we see no reason to believe that the Legislature, by enacting the Family Law Act, intended to change that state of affairs.”
- Principles of the Law of Family Dissolution
- a. Family Law Statutes Do Not Govern a Non–Marital Relationship
- and wife, filed joint income tax returns and maintained joint bank accounts. D insured P as his wife on his medical insurance policy, and P and D purchased real and personal property as though husband and wife. P obligated herself on promissory notes to lending institutions as though D’s wife, and she worked as a receptionist in D’s business for 3 years. P also took care of the children and the house and contributed personal property. After a bitter separation, P sought an accounting and a share of accumulated property under family law statutes, marriage by estoppel, express or implied in fact contract, constructive trust based upon unjust enrichment, and partition. (Result: (1) Unmarried cohabitants are not a family within the meaning of the statute that authorizes the division of property in an action affecting the family. (2) The doctrine of marriage by estoppel is inapplicable. (3) P has valid claims for breach of contract, express or implied in fact, unjust enrichment, and...
- (1) P and D lived together for 14 years, participated in a religious wedding ceremony, and had two children together, though they never legally married. During their relationship, the couple amassed more than $1 million in property, all of which was titled in D’s name. In 2003, P and D were both killed in a car accident while on a family vacation. (Result: P and D “lived in a committed intimate relationship that would have been sufficient to justify equitable distribution of their jointly acquired property had their relationship terminated by dissolution rather than death…. By analogy to community property law, [P] had an undivided interest in the couple’s jointly acquired property, even though it was titled in [D’s] name…. We hold that when a committed intimate relationship is terminated by the death of both parties, the couple’s jointly acquired property can be equitably divided between the partners’ estates.”)
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I. The Nature of Marriage and Marital Contracts 40 results (showing 5 best matches)
- Although marital relationships traditionally are defined and controlled by state law, the U.S. Supreme Court has applied constitutional interpretation to a host of family law issues. In this manner, numerous aspects of family law have been federalized and, incidentally but very importantly, unified throughout the United States. Increasingly, state courts have interpreted state constitutions to expand certain rights, as in the case of same-sex marriage (
- (2) H was granted a divorce from W. Both were citizens of India and Hindus of high caste. W contended that the divorce violated her First Amendment (free exercise of religion) rights as the Hindu religion does not recognize divorce. She alleged that if she ever returned to India divorced, her family and friends would treat her as if she were dead. (Result: For H. The order dissolved only the civil contract of marriage and did not dissolve it ecclesiastically. “The wife here may take such view of their relationship after the decree as her religion requires, but as a matter of law the civil contract has been dissolved.”)
- Although the idea of an unwritten constitutional right of privacy remains controversial, the U.S. Supreme Court has continued to recognize heightened constitutional protection for a widening range of “private” decisions relating to marriage, procreation (discussed at p. 314), abortion (discussed at p. 315), child-rearing (discussed at p. 238), and other aspects of family life. In 2003, the Court extended this line of precedent to include same-sex intimacy, striking down a Texas law that criminalized sodomy.
- Today, restrictions on polygamy are commonly justified as promoting the stability of the family and avoiding sexual and economic exploitation of the spouses and children of the polygamist.
- marriage, sexual behavior, family religion, promises not to defend a divorce action or not to seek a divorce, child rearing and other day-to-day aspects of married life.
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Summary of Contents 9 results (showing 5 best matches)
IX. The Parental Obligation of Care and Control, and the Juvenile Court System 16 results (showing 5 best matches)
- Juvenile courts hear three types of proceedings: (1) Child neglect and dependency, including child abuse, that may result in the appointment of a guardian and/or the termination of parental rights; (2) Status offenses; and (3) Delinquency. Only the first category directly involves “family law” and will be dealt with here. The other two categories are referred to briefly.
- An organization of foster parents sought declaratory and injunctive relief, alleging that New York’s statutory and regulatory procedures for removal of foster children from foster homes violated Due Process and Equal Protection. The foster parents’ contention was that “when a child has lived in a foster home for a year or more, a psychological tie is created between the child and the foster parents which constitutes the foster family the true ‘psychological family’ of the child,” and creates “a ‘liberty interest’ in its survival as a family that is protected by the Fourteenth Amendment.” The lower court had concluded that “the pre-removal procedures presently employed by the State are constitutionally defective,” and held that “before a foster child can be peremptorily transferred from the foster home in which he has been living, be it to another foster home or to the natural parents who initially placed him in foster care, he is entitled to a hearing at which all concerned...
- Because of the Constitution’s respect for “family privacy” and the potentially punitive nature of state intervention to protect children from abusive parents, the U.S. Supreme Court has interpreted the Constitution to require special safeguards erroneous governmental intervention.
- substitute family care for a planned period when the child’s own family cannot provide appropriate care and when adoption is either not desirable or not possible. The state has the duty to monitor the foster care arrangement to ensure that the child is receiving whatever individual treatment it needs. Since foster parents do not have a constitutional right to procedural protections such as are afforded natural parents, contracts requiring foster parents to relinquish their wards are binding when the decision is made for any reason to transfer the child to another foster home or back to its natural parents.
- In 1997, concerned that excessive solicitude for parental rights and “family preservation” was causing many thousands of children to spend years in “foster care drift,” Congress sought to push states to move faster to terminate the parental rights and free abused or neglected children for adoption into permanent homes. In the Adoption and Safe Families Act (ASFA), Congress
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V. Divorce—Status Issues 18 results (showing 5 best matches)
- Despite the abstention rule, federal courts have increasingly heard cases involving family law.
- Under specific legislation, federal courts exercise jurisdiction over certain matters ancillary to domestic relations disputes, such as interstate child custody and child support enforcement. Despite the theoretical applicability of diversity jurisdiction to domestic relations actions in which the spouses are citizens of different states and the amount in controversy meets the federal standard, federal courts—following century-old dicta—decline to take jurisdiction over domestic relations matters. For a time, some federal courts tended to discount the traditional rule, though most continued to refuse to involve themselves in any family law matters. In 1992, the U.S. Supreme Court reaffirmed the continued existence of the abstention rule.
- What constitutes mental cruelty may depend upon the particular parties involved rather than on objective criteria. Relevant considerations may include family tradition, ethnic and religious backgrounds, local customs and standards, and other cultural differences. Moreover, the definition of “mental cruelty” seems to differ in contested cases and in uncontested cases. In uncontested cases, standards often are considerably less stringent, and standards may be at their strongest when a marriage of long duration is at issue.
- In the mid–1850s, the English common law courts obtained jurisdiction over marital actions. The body of law concerning “divorce the law required proof of marital fault.
- The American fault-based divorce system derived from English divorce laws, which, in turn, derived from ecclesiastical (canon) law.
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X. Children’s Rights 20 results (showing 5 best matches)
- Traditional law prohibited tort suits between parents and children. Stated objectives were to preserve family harmony and to prevent collusive suits to collect insurance benefits. (Note: by comparison, the
- “It is basic to our law that the court cannot regulate, by its processes, the internal affairs of the home. As we said more than 30 years ago, ‘[d]ispute [in the family] when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.’ ” Jason, J., concurring in
- Under the “family purpose doctrine,” vicarious liability may be imposed on a parent for the negligence of a family member, including a child, while driving the family car. In addition, a majority of states have enacted statutes that hold parents vicariously liable for damage caused by their children’s torts, up to a statutory maximum amount, typically in the low thousands. Statutes of this type generally have been upheld against constitutional attack. A New Jersey court has held that a statute imposing
- (2) F sued M and her parents for alienation of affections after they allegedly poisoned his relationship with his child. (Result: Dismissal affirmed. Florida law provides no tort remedy for alienation of affections, though it has recently recognized an action for intentional interference with a custodial relationship. “Tort litigation for alienation of affections carries the risk that litigation might increase intra-family disharmony and force children to testify in court, as pawns, testifying against a parent…. [O]nly where there is the additional element of interference
- abrogated the doctrine completely or have established significant exceptions…. [T]he fear of disrupting the fabric and nucleus of families by allowing actions based upon intentional sexual abuse simply appears to be without merit…. [I]n those cases the inescapable conclusion is that the family fabric has already been tragically disrupted by the serious misconduct alleged.”)
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Title Page 3 results
XII. Adoption 26 results (showing 5 best matches)
- (3) F had served as an “exemplary” foster parent to three children since their infancy. His petition to adopt, however, was denied on the ground that he is gay and that a Florida statute prohibits adoption by homosexuals. F challenged the constitutionality of the Florida statute. (Result: Statute upheld. Florida’s law burdens no fundamental rights. “There is no precedent for appellants’ novel proposition that long-term foster care arrangements and guardianships are entitled to constitutional protection akin to that accorded to natural and adoptive families.” Nor do homosexuals constitute a suspect class. Accordingly, the rational-basis test applies, and Florida’s law is rationally related to the state’s “legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children.”)
- D.C. Code § 3–115(b) provides: “(1) The Mayor may make adoption subsidy payments to an adoptive family (irrespective of the state of residence of the family), as needed, on behalf of a child with special needs, where such child would in all likelihood go without adoption except for the acceptance of the child as a member of the adoptive family, and where the adoptive family has the capability of providing the permanent family relationships needed by such child in all areas except financial, as determined by the Mayor. * * * (2) For the purpose of this subsection—(A) The term ‘child with special needs’ includes any child who is difficult to place in adoption because of age, race, or ethnic background, physical or mental condition, or membership in a sibling group which should be placed together. A child for whom an adoptive placement has not been made within six months after he is legally available for adoptive placement shall be considered a child with special needs within the...
- custodial and natural parent who had remarried and consented to the child’s adoption by a stepparent.’ The statutory provision at issue here was enacted in 1987 and restored the right of an adopted person to inherit from biological parents under limited circumstances [when they are adopted by a close relative]. * * * [T]he laws of intestacy attempt to distribute the decedent’s property to persons whom the decedent would likely have chosen had he or she executed a will. Accordingly, in cases where a child is adopted by a close family member, ‘[t]he Legislature has chosen not to cut off inheritance ties between the adopted-out child and the natural family that has been replaced because of the likelihood of continued contact with that family.’ ”)
- The adopted child’s right to inherit from an adoptive parent and the latter’s family depends upon state adoption and inheritance laws. Today it is virtually universal that the adopted child is treated as “issue” of the adoptive parents for purposes of intestate succession from the latter as well as from the latter’s relatives. Similarly, the trend favors interpreting potentially ambiguous terms in wills, such as “child,” “issue,” and “descendant,” to include adopted children.
- (2) M and F adopted an infant, C, in 1961 through an adoption agency. The agency assured M and F that C was a “healthy baby” and, despite inquiries, did not disclose that C’s birth parents both had a family history of schizophrenia. C later developed serious behavioral and emotional difficulties and was diagnosed as a young man as schizophrenic. M and F sued the agency in tort for fraud and wrongful adoption. (Result: Adoptive parents were entitled to recover compensatory but not punitive damages in tort. The agency “acknowledges that plaintiffs have raised a cognizable claim under common-law fraud principles in the adoption setting.” Tort recovery for wrongful adoption requires “not simply an agency’s silence but ‘the deliberate act of misinforming’ a couple who were deprived of their right to make informed parenting decisions.” Here, agency’s deliberate misrepresentations about C’s family history warranted compensatory damages, but did not show malice necessary to support punitive...
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Half Title 1 result
VII. The Parental Child Support Obligation 16 results (showing 5 best matches)
- H. Conflicts of Laws Aspects of Child Support: The Uniform Interstate Family Support Act
- H. Conflicts of Laws Aspects of Child Support: The Uniform Interstate Family Support Act
- The common law imposed the duty to support the family’s children on the father.
- Traditionally, the duty to support the family was imposed primarily on the father and only secondarily on the mother. Today the duty to support children rests equally upon both parents, although the custodial parent (still typically the mother) generally fulfills the obligation by providing care. A child’s independent wealth or income normally does not relieve the parents of their support obligation. Because courts are reluctant to intervene in family relationships, litigation concerning child support issues typically is limited to situations where the obligated parent is separated, divorced or not married. The neglect and dependency laws assure a minimum level of child support in the ongoing family. When the parents cannot adequately support the child, government welfare programs have long provided relief. Federal welfare reform legislation enacted in 1996 both limited eligibility for benefits, however, and prodded states to step up their efforts to collect support payments from...
- Since 1975, federal legislation has strengthened nationwide enforcement of child support obligations. Washington imposes broad burdens on state welfare programs if they wish to participate in the federal scheme. The original purpose was to reduce the cost of welfare assistance then under the guise of the Aid to Families with Dependent Children (AFDC) program. In 1996, comprehensive federal welfare reform through the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) replaced AFDC with the Temporary Assistance to Needy Families (TANF) program and further strengthened federal child support enforcement efforts. The new law requires mothers to cooperate in identifying fathers, facilitates establishment of paternity through voluntary acknowledgments without need for court action, and created a national “New Hire” database to help locate parents owing support. For a small fee, the child support enforcement is available to persons not receiving public aid. Wage...
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Table of Contents 28 results (showing 5 best matches)
II. Marriage Requisites and Common Law Marriage 64 results (showing 5 best matches)
- One social argument focuses on preventing sexual rivalries and jealousies between family members and preventing abuse of family authority. Incest prohibitions have also been defended in terms of the social good resulting from increased cultural diffusion and the broadening of family alliances.
- Cultural and religious conceptions of the family are the origin of incest prohibitions. Today, incest statutes are defended as preventing genetically defective offspring, promoting family harmony, and discouraging sexual imposition on minors.
- the social, “family harmony” argument. “To authorize and encourage marriages of brothers and sisters by adoption would undermine the fabric of family life and would be the antithesis of the social aims and purposes which the adoption process is intended to serve.”
- A common law marriage validly entered under the laws of one state is generally recognized everywhere, even in states that have abolished common law marriage. Moreover, in states that have abolished common law marriage, courts sometimes strain to protect the reasonable expectations of the parties by “stretching” conflict of laws doctrine—focusing on the parties’ sojourn to another state that recognizes common law marriage and holding that a valid marriage was entered there.
- The scope of the prohibition varies from state to state. Marriages within the immediate family, between parent and child or brother and sister, are prohibited universally. Most states also prohibit marriage between an uncle and his niece or between an aunt and her nephew. Approximately one-half of the states prohibit marriage between first cousins.
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VIII. Child Custody 29 results (showing 5 best matches)
- Reflecting widespread dissatisfaction with the indeterminacy of the prevailing “best interests” standard, in 2000 the American Law Institute’s
- By 2000, every state had enacted legislation permitting certain non-parents to seek court-ordered visitation with a child. The statutes varied considerably, some limiting visitation to grandparents while others listed additional persons with standing to seek contact; many statutes permitted court intervention only in families where the parents were already separated by death or divorce, but some allowed court action even against intact families.
- (3) When they divorced, H was awarded custody of four children born during their 15–year marriage, the youngest of whom was fathered by another man during a brief separation. M appealed, arguing that she was entitled to custody of the youngest child over F, a non-parent. (Result: Custody to H affirmed. Although Indiana law formerly entitled parents to custody unless unfit, recent case law has diminished the strength of parental preference. Now, “before placing a child in the custody of a person other than the natural parent, a trial court must be satisfied by clear and convincing evidence that the best interests of the child require such a placement. The trial court must be convinced that placement with a person other than a natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because ‘a third party could provide the better things in life for the child.’ ” Here, H had assumed a full parental role with respect to...
- ...court, alleging that M had wrongfully removed S from Germany in violation of the Hague Convention. The district court denied F’s claim, and he appealed. (Result: Reversed and remanded; F’s claim reinstated. “Under the Convention, the removal of a child from one country to another is wrongful when: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. * * * The district court appears to agree that before the argument of July 27, 1991, Thomas was a habitual resident of Germany. The district court, however, found that Thomas’s habitual residence was ‘altered’ from Germany to the United States when Mr. Friedrich forced Mrs....
- ...months. M did not contest joint legal custody, but challenged award of joint physical custody as contrary to children’s best interests. (Result: Reversed. Traditionally, Iowa courts disfavored joint physical custody on the grounds that “divided custody is destructive of discipline, induces a feeling of not belonging to either parent, and in some instances can permit one parent to sow seeds of discontent concerning the other.” Statutory enactments in 1997 and 2004 now “require that courts consider joint physical care at the request of any party and that it make specific findings when joint physical care is rejected.” While this legislation creates no presumption in favor of joint physical custody, “the notion that joint physical care is strongly disfavored except in exceptional circumstances is subject to reexamination in light of changing social conditions and ongoing legal and research developments. Increasingly in Iowa and across the nation, our family structures have...
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IV. Spouses 58 results (showing 5 best matches)
- “Necessaries” purchased for the family by one spouse, for which the other would be held liable, include all things essential to the family’s well being, such as food, apparel, medicine and medical care, transportation, housing, and even furniture. What in any given case constitutes “necessaries” varies with the obligated spouse’s financial status.
- Rejecting the family harmony argument, courts reason that (1) a personal injury action is not likely to disrupt family peace more than a property or contract action that now is universally allowed; (2) one spouse being willing to sue the other signals such a lack of “harmony” that to disallow the action would hardly mend the rift; (3) if insurance is present, a judgment against a spouse will have no impact on intra-family peace, since outside (insurance) money will compensate for the injury; (4) although the presence of insurance offers opportunity for fraud and collusion, courts and juries provide adequate protection.
- The fact that the common law gave the husband control over his wife’s property and disabled the wife from suing in her own name supported interspousal tort immunity: Any recovery against H on W’s behalf would be paid out of H’s right pocket into his left, quite aside from H having to sue himself! Later, the argument was that the tort immunity helps preserve the peace and harmony of the home and, still later, that it prevents possible collusion to collect on liability insurance. Abrogating the doctrine, 285 Minn. 366, 173 N.W.2d 416 (1969), nevertheless cautioned: “Interspousal immunity * * * has been * * * firmly rooted in the common law, both historically and ideologically, based upon the unique unity of a husband and wife within the marriage relationship. * * * Collusion in making spurious claims is an undeniable temptation where a member of the family is insured.”
- Ordinarily, the law permits anyone to call himself or herself by any name, so long as no fraud is intended and the name itself is not somehow offensive to public policy. Recently, courts have upheld the right of unmarried couples—including same-sex couples—to adopt a common surname, overcoming objections by trial courts that this would undermine state policies favoring marriage and the traditional family.
- did not support M’s concern that C would feel left out of her new family if he had a different last name. “As for [C’s] identification with a family unit, there was no evidence presented that [C] would be more or less likely to identify himself with a family unit with or without a change in his surname. Another factor which we have identified as relevant to a court’s determination regarding a change in name is the child’s preference. The only evidence presented at trial regarding [C’s] preference was [M’s] unsubstantiated testimony that [C] has been using the [new] name Watts in preschool and telling his teachers that his surname is Watts. [M’s] testimony does not, in and of itself, indicate [C’s] preference.”)
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Capsule Summary 22 results (showing 5 best matches)
- At one time, tort suits among family members were barred by intra-family tort immunities. In recent years, however, these immunities have been widely abandoned or curtailed.
- The state may intervene to protect children from dependency, abuse, and neglect. Intervention may range from investigation and counseling to, in the worst cases, termination of parental rights and placement of the child in a new adoptive family. The federal Adoption and Safe Families Act of 1997 has prodded states toward more aggressive intervention.
- Spouses are obligated to support one another during marriage although courts seldom enforce the principle in intact families. In many states, one spouse may
- C. TORTS AND THE FAMILY
- E. FAMILY NAMES
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XI. Legitimacy, Illegitimacy and Paternity 14 results (showing 5 best matches)
- (1) In 1978, the U.S. Supreme Court denied an unmarried father a “veto power” over the adoption of his nonmarital child, when for eleven years he had not availed himself of the opportunity under Georgia law to legitimate the child, had supported the child only irregularly and had never lived with the child in a family setting.
- 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the Court upheld a Louisiana law denying inheritance to a nonmarital child, even though the father had acknowledged the child during his lifetime. In 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the Court declared that an Illinois law that did not allow nonmarital offspring to inherit from their intestate fathers denied equal protection. (The Illinois Probate Act allowed nonmarital children to inherit only from their intestate mothers, whereas children born in wedlock could inherit by intestate succession from their mothers and their fathers.) The Court held that a classification based on illegitimacy must bear a rational relationship to a legitimate state purpose, and the provision could not be justified on the ground that it promoted legitimate family relationships. In a footnote, the Court stated that
- family unit was held constitutionally entitled to notice and to a hearing in proceedings involving the custody of his children and, based on a footnote in
- D. Conflicts of Laws
- The law presumes that a child born to a married woman is the child of her husband, absent convincing proof of his nonpaternity. This presumption was one of the strongest known to the common law and has become readily rebuttable only with the advent of modern blood tests. However, even if there is (or may be) proof of nonpaternity, estoppel may prevent its use (or production) as evidence. In recent years, traditional reluctance has given way in some states to a new willingness to allow presumed fathers to “disestablish” paternity based on blood or DNA tests, sometimes even after many years of acting as a child’s father.
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Appendix B. Practice Essay Questions 8 results (showing 5 best matches)
- The appellant, George Feisthamel, is a 59 year old male in generally good health. George has been employed by Long Construction Company and Western Energy for many years as a heavy equipment mechanic. He is a member of the International Union of Operating Engineers. He continues to reside in the family home. LaVon moved from the family home in July, 1994.
- The Grebels and their extended families have been Old Order Amish since time immemorial, and Conrad and Anna have raised their two children (a girl 10 years old, a boy 12 years old) in that religion. Conrad has always taken a strong interest in his children, somewhat sternly, and both parents have raised the children
- ...worth about $200,000. The house was built by Conrad just before the marriage from materials supplied by his father. It has a current replacement cost of about $40,000. The acreage is composed of 300 acres each spouse inherited from his/her family, 200 acres Conrad purchased during the marriage (from profits earned in the farming operation and savings from his evening job as a blacksmith), plus 200 acres Anna received as a wedding gift from her father when she was married. Their inherited acreage had a tax basis of $1,000 per acre, the wedding gift was then worth $2,000 an acre, and the acreage purchased during the marriage cost $3,000 per acre. All the acreage is now and always was of equal value on a per-acre basis. All the acreage was farmed as one unit by Conrad. No separate operating records were kept, and joint tax returns were filed. Anna has never had a job outside of the home, and did not participate in the operation of the farm in any way. Conrad’s net profit is $10,000...
- Plaintiff Mr. Sappington has petitioned the court to relieve him of further alimony payments and has brought in Dr. Carol Moy, a professor of psychiatry and family practice at Southern University School of Medicine as his expert witness. She testified at the trial in this case. She counsels couples who are dissatisfied with their relationships and assists people in developing a conjugal relationship, including males who are impotent. She indicated that penile penetration is not the only form of sexual intercourse, that there are verbal and non-verbal ways of expressing sexuality. While indicating that a conjugal relationship does not necessarily involve sexual intercourse or sexual gratification, she defined a conjugal relationship as “a total family relationship * * * between a male and a female [is] usually understood to be a relationship of two people living, functioning together in a mutually supportive atmosphere.”
- As best you can, decide this case under your state’s law, giving reasons. To the extent you do not know your state’s law, apply “national” law. To the extent you do know your state’s law, compare “national” law. (Facts are adapted from
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VI. Divorce—Financial Consequences 22 results (showing 5 best matches)
- (2) W postponed her degree in nursing and worked fulltime to put H through law school. W also did all of the household work. H blamed the fights he started with W on the stresses of law school. W claimed that by the end of their marriage, her whole life revolved around trying not to agitate H. The parties separated when H admitted that he had occasionally dated another woman while W was working. Upon divorce, the trial court determined that H’s law degree was a marital asset, and H appealed. (Result: Remanded for valuation of W’s equitable interest in H’s law degree. Where an advanced degree is the end product of a concerted family effort, involving the mutual sacrifice, effort, and contribution of both spouses, there arises a marital asset subject to distribution, and the non-student spouse has an equitable claim against this asset. “[T]he goal is to attempt to financially return to the nonstudent spouse what that spouse contributed toward attainment of the degree. Because such an...
- “In a proceeding for dissolution of the marriage [or] legal separation * * * the court shall assign each spouse’s separate property to the spouse. It also shall divide community property, without regard to marital misconduct, in just proportions after considering all relevant factors including: (1) contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker; (2) value of the property set apart to each spouse; (3) duration of the marriage; and (4) economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for a reasonable period to the spouse having custody of any children.”
- ...shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making apportionment the court shall consider the duration of the marriage, any prior marriage of either party, any antenuptial agreement of the parties, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of each party in the acquisition, preservation, depreciation, or appreciation in value of the respective estates, and the contribution of a spouse as a homemaker or to the family...
- While separated, and in contemplation of divorce, H and W executed a separation agreement in which H agreed to pay for upkeep on the marital home where W lived, make one-half of the mortgage payments as long as W did not remarry or either of the couple’s children remained at home, and to pay child and spousal support. H argued that the agreement was void on the grounds that it violated public policy by being premised on the consideration of divorce. (Result: Agreement valid. “In line with the policy favoring family settlements, even where made in contemplation of divorce, in order to render an agreement unenforceable some
- consisted primarily of H’s ownership interest in a closely held oil business) in monthly installments spread out over 10 years. On further consideration, W disavowed the agreement as unfair. (Result: Agreement is invalid because “unconscionable.” First, W testified that she did not fully understand the agreement, had poor math skills, and relied on her father to explain the terms. Second, allowing H to keep the marital property while paying out W’s share over 10 years without interest meant that “husband, whose income is substantially greater than wife’s, obtained the considerable benefit of retaining the use, enjoyment, and investment value of the unpaid balance.” Finally, the court appeared influenced by the fact that “[t]he family lived for many years in various oil field camps in desolate parts of Wyoming,” while W cared for the children and worked in low-wage jobs, before H came to wealth near the end of the marriage.)
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Appendix D. Glossary 20 results (showing 5 best matches)
- Estate reduced by funeral and administration expenses, homestead allowance, family allowances, exemptions, and enforceable claims to which is added value of property transferred to anyone other than bona fide purchaser and value of property owned by surviving spouse at decedent’s death. This concept is used in the Uniform Probate Code.
- Property owned in common by spouses each having an undivided one-half interest by reason of their marital status. Nine states have community property systems. The rest of the states are classified as common law jurisdictions. The difference between common law and community property systems centers around the property rights possessed by married persons. In a common law system, each spouse owns whatever he or she earns. Under a community property system, one-half of the earnings of each spouse is considered “earned” by the other spouse.
- The provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children. A species of life-estate which a woman is, by law, entitled to claim on the death of her husband, in the lands and tenements of which he was seised in fee during the marriage, and which her issue, if any, might by possibility have inherited. The life estate to which every married woman is entitled on death of her husband, intestate, or, in case she dissents from his will one-third in value of all lands of which husband was beneficially seized in law or in fact, at any time during coverture. Dower has been widely abolished.
- Based on Black’s Law Dictionary.
- Legal process pursuant to which a child’s legal rights and duties toward his natural parents are terminated and similar rights and duties toward his adoptive parents are substituted. The procedure is entirely statutory and has no historical basis in common law.
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Appendix F. Index 24 results (showing 5 best matches)
Preface 7 results (showing 5 best matches)
- Good Luck! Remember it was you who decided to study law. All inevitable aggravations aside, “law” should be perceived by you as fun, and examinations as competitive games. Otherwise, the competitive life that follows law school will not be fun. If all else fails, think of Mr. Bumble’s lawyer who mused: “The law may be a ass, but it sure is giving me a good ride!”
- language is emphasized in order to maintain accuracy and to give “live” flavor to the law. True/false questions follow each substantive chapter. These questions—and even more, the answers—are to be taken with a grain of caution. As you well know, few things are wholly true or wholly false, especially in law. Most of the challenges presented there are “more true than false” or “more false than true.” The questions should be reviewed in those terms. At the end, a practice essay examination is provided. A cross reference chart correlates coverage of subject matter in this volume and in leading casebooks. A Glossary, appropriately based on Black’s Law Dictionary, and a detailed Index conclude this Black Letter.
- “study aid,” your casebook. But you also find yourself under time pressures that make anything that abstracts the “black letter law” seem inevitably attractive. WEST established this “Black Letter” series to assure a level of quality that some more hastily prepared “outlines” lack. If it is to be done, it should be done well. Consistently with the need for brevity, we have tried to be reasonably accurate in synthesizing this fast-evolving area of law, even if some of the finer points have had to be compromised.
- Over the years, and through several editions, a number of students and staff members of the University of Illinois College of Law have contributed their efforts to the creation of this Black Letter. For expert administrative assistance, special thanks are due Angela Martin, Stacey Ballmes and Carrie May–Borich, who helped ensure that the various revisions made it into print.
- By now you have had so much advice on how to write a law examination that you have discovered that there is no universal rule, but you probably have a pretty good idea what works best for you. If it works, stick with that. A model answer has not been provided for the practice essay because quite different responses to the same question may merit (or receive) the same grade. Each person has to tailor his or her approach to her or his own style and (if only more were known about that) to the grader’s personality and preferences. If there are time limitations—and on the typical law school examination there are—we would discount the oft-repeated morsel that you should first prepare an elaborate outline of your answer on scrap paper. Anyone who can, after brief reflection, find the proper starting point from which to develop the answer logically while going along, should do just that. This will leave more time to answer the question where it counts—in the bluebook, pursuing additional...
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, University of San Diego Professor of Law, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Dean and Professor of Law, Stanford Law School
- Professor of Law, Yale Law School
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XIII. Procreation 11 results (showing 5 best matches)
- free choice. “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.” After the point of viability, however, the state is permitted to prohibit abortion altogether, so long as it makes an exception for abortions necessary to protect the life or health of the pregnant woman. In 2000, the Supreme Court invalidated a Nebraska ban on so-called “partial birth,” late-term abortions because it failed to make an exception for maternal health. , 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Three years later, President George W. Bush signed into law the first federal ban on “partial-birth” abortions, also omitting an exception for maternal health. In 2007, the Supreme Court upheld this law, distinguishing ...the federal law was more narrowly targeted than the Nebraska statute in defining the proscribed method of abortion and that Congress made specific findings...
- “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.”
- “(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband’s consent with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so does not affect the father and child relationship. (b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.”
- In 2000, the Uniform Law Commissioners substantially revised the UPA, initially expanding its scope to cover all artificial insemination involving a married couple, even if not done under the supervision of a physician. In response to criticism, the Commissioners again revised the Act in 2002 to drop its limited focus on married couples (see below).
- (3) F, a single, gay man who wished to become a father, contracted with his niece, N, to serve as a gestational surrogate. The contract called for an egg from an anonymous donor to be fertilized with F’s sperm and implanted in N; N agreed to disclaim any parental rights to the child and F agreed to pay N a $20,000 fee plus expenses. During N’s pregnancy, the parties had a falling out and N refused to surrender the baby upon its birth. (Result: Surrogacy contract is enforceable and requires that F be recognized as child’s only parent. “[N] argues that the district court erred by giving any effect to the GSA [gestational surrogacy agreement] because there is ‘no statutory or case law authority under Minnesota law which sanctions the determination of a child’s parentage and custody pursuant to a ...no Minnesota statute or case law that prohibits GSAs. And the legislature has expressly protected the rights of individuals who use assisted-reproduction technologies [by way of...
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Copyright Page 1 result
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: February 19th, 2009
- ISBN: 9780314194480
- Subject: Family Law
- Series: Black Letter Outlines
- Type: Outlines
- Description: This outline summarizes the black letter rules of family law, allowing students to understand how their course materials fit together.