Family Law in a Nutshell
Author:
Myers, John E.B.
Edition:
7th
Copyright Date:
2019
27 chapters
have results for family law in a nutshell
Chapter 1 Introduction: Sources and Applications of Family Law 1 11 results (showing 5 best matches)
- Family law, also known as domestic relations law, is the law governing family relations. Family law covers marriage and divorce, the parent-child relation, child custody, child support, spousal support, and property division. This Nutshell discusses these topics in detail, and adds coverage of domestic violence, assisted reproduction, adoption, premarital agreements, cohabitation agreements, juvenile court, the constitution and the family, ethical issues arising in family law practice, and, because family law is a litigation practice, a primer on evidence issues in family law.
- Family law deals with complex legal and human issues. The practice of family law is very challenging, but it can be the most professionally rewarding thing you do. This book has two goals. First, to give law students taking the course on family law a thorough grounding in the material covered in the course. Second, the book is sufficiently detailed and advanced that lawyers interested in family law, but unschooled in certain aspects of the subject, will find the material relevant to practice.
- Family law springs from five sources. First, there is the states’ comprehensive common law, statutory, and constitutional law ordering of family relationships. It should be emphasized that there is no family law in a national, unified sense. Instead, every state has its own law on the subject. Second, there is the United States Constitution, by means of which courts have helped shape family law. Chapter 2 describes the impact of U.S. Supreme Court decisions on family relations. Third, there is the vast complex of state and federal social and tax legislation. Providing and withholding benefits on the basis of marital status or dependency, tax law, and laws regulating welfare and entitlements, affect many aspects of family behavior. Fourth, an increasing volume of federal law and policy, ranging from child support enforcement (Chapter 8) to interstate custody disputes (Chapter 7), has injected federal authority into family law. Fifth, regulation occurs on the local level, including...
- Both the growing diversity in groups across this nation who claim to be families and diversity within the families themselves carry consequences for three basic issues in family law: (1) who is in “the family,” (2) what benefits accompany family membership, and (3) what obligations accompany family roles. It may once have seemed that these questions had obvious and uncontroverted answers. It may once have seemed that “family” referred to a natural or obvious social entity created by the biological ties of parent and child and the divine or contractual ties of marriage.
- The meaning of “family” evolves. Fifty years ago, most Americans lived in two-parent married families. Andrew Cherlin writes, “The nuclear family of husband, wife, and children, which was predominant in the first half of the century, reached its zenith in the 1950s. . . . Since the 1960s . . . the overall percentage of children not living with both parents rose sharply to more than 40%.” (Andrew J. Cherlin, Demographic Trends in the United States: A Review of Research in the 2000s, 72
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Chapter 17 Family Law Attorney as Trial Attorney 415 111 results (showing 5 best matches)
- Most family law attorneys are in court on a regular basis, arguing motions and trying cases. Thus, family law is typically a litigation practice. This chapter introduces issues of evidence law that arise in family law cases. The chapter begins with expert testimony. Attention then shifts to hearsay in family law proceedings. Next, the chapter addresses technical rules governing admission of documents in evidence. The chapter ends with discussion of privileges.
- Expert testimony is frequently offered in family law trials. The expert may be a mental health professional, accountant, vocational expert, appraiser, or actuary. Experts provide opinions and recommendations on a broad range of subjects, from the best interests of children to the value of businesses.
- There are more than thirty exceptions to the rule against hearsay, but only a handful play a day-to-day role in family law litigation.
- In most states, there is no jury in family law litigation. In bench trials, questions about preliminary issues are decided by the court.
- Hearsay evidence plays an important role in family law trials. Hearsay is an out-of-court statement (an assertion of fact) that is repeated in court to prove the truth of the statement (the truth of the matter asserted). It is useful to divide the definition into its three components. A person’s words are hearsay when: (1) The person’s words were intended by the person to describe something that happened; and (2) The person spoke prior to the court hearing where the person’s words are repeated (The person’s assertion was “out-of-court”); and (3) The person’s out-of-court statement (assertion) is repeated in court to prove that what the person said actually happened (the -of-court assertion is repeated in court to prove the truth of the matter asserted).
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Chapter 10 Property Issues in Family Law 223 176 results (showing 5 best matches)
- This chapter discusses property issues in family law. The subject is vast, and the law varies from state to state. In addition to state property law, federal law, in particular, tax law, law governing pensions, and bankruptcy law, play roles in many family law cases. Much of the day-to-day work of family law attorneys focuses on property.
- Sue and Sam are divorcing. For the three years prior to divorce, Sue and Sam enjoyed the companionship of two miniature dachshunds, Bindy and Chibby. Sue and Sam dearly love Bindy and Chibby, and the dogs are very attached to each other. In the divorce, Sue and Sam cannot agree on who should get the dogs. In a divorce case, are family pets property subject to division under principles of marital property law? Or are family pets akin to children, allowing the judge to apply a “best interests of the dog” test? Courts traditionally have treated pets as property. (
- An important part of the family law lawyer’s job is negotiating settlement of property and other issues in divorce. Matters on which the parties reach agreement are memorialized in a Marital Settlement Agreement (MSA).
- An important part of a lawyer’s job in divorce is learning about all pension/retirement benefits of both parties. The lawyer determines whether pension benefits are separate or marital/community. The lawyer educates the client about the impact of family law on pensions.
- Married persons are in a fiduciary relationship, and owe each other obligations of honesty and fair dealing. ( Ann Crawford McClure & John F. Nochols, Sr., Fraud, Fiduciaries, and Family Law, 43
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Chapter 5 Marriage and Divorce 37 62 results (showing 5 best matches)
- Litigating family law issues takes an enormous toll on couples’ pocketbooks and egos. The breakdown of a marriage is often accompanied by hurt feelings and anger. Pitting one spouse against the other in court magnifies the pain and anger. Much of the work of the family law attorney involves helping clients litigation. The vast majority of family law cases settle out of court.
- In addition to purely legal work, family law attorneys need to decide how much “hand holding” to do. Some clients are in crisis. They are going through the worst experience of their life. Many clients are angry, scared, depressed, anxious, and uncertain about the future. When children are involved, emotions run even higher. Attorneys have an important counseling role, but lawyers are not mental health professionals. Sometimes, it is appropriate to refer a client to a mental health professional who can help the client with the emotional aspects of divorce. Even when counselors are involved, there is no escaping the emotional side of family law. If you are uncomfortable dealing with strong emotions, and with people who are hurting or angry, family law may not be for you. You can do a great deal of good as a family law attorney, but it is not for everyone.
- Tindall and Smith describe collaborative law in an article in the
- The 1960s brought increased calls to do away with fault-based divorce. As a step in that direction, a number of states passed laws allowing divorce when the parties lived apart for a number of years. In 1969, California adopted no fault divorce. Indeed, in California today, it is improper even to mention fault in a petition for divorce. (
- A written agreement is executed regarding fees. In many cases, the attorney requires a retainer, that is, an advance payment of fees. The advance is placed in the client’s trust account, and may not be commingled with the attorney’s own funds. Contingent fee agreements are not typically used in family law proceedings.
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering 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.
- Printed in the United States of America
- © West, a Thomson business, 2003
- © 2017 LEG, Inc. d/b/a West Academic
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Chapter 13 Assisted Reproduction 335 47 results (showing 5 best matches)
- In a 2011 article in the
- The science of reproductive technology advances apace. On the horizon is a technique called mitochondrial manipulation. Daar writes, “Can a child have more than two genetic parents? Scientifically unthinkable until the dawn of the twenty-first century, researchers and infertility specialists have been tinkering with the building blocks of human reproduction to improve fertility treatment outcomes for patients and their offspring. The most recent advances focus on the genetic content of the female egg which, if abnormal, is linked to both infertility and disease. Ongoing experiments involve a kind of deconstruction of an unhealthy oocyte and then reassembling it using materials donated from a healthy female volunteer. The result is a germ cell containing the genetic material from two women that, when fertilized by a single sperm, will yield an embryo housing the DNA of three people rather than the traditional two.” (
- What if a surrogate decides to terminate the pregnancy? Can the intended parents prevent her from aborting the child? Alternatively, could intended parents force a surrogate to terminate a pregnancy if they changed their minds about being parents? Obviously, these questions raise profound issues of privacy and constitutional rights. Deborah Froman wrote an interesting article on the subject, and stated, “Surrogacy contracts typically include some kind of provision addressing the issue. Most commonly, these provisions anticipate two potential scenarios: a fetus suffering from serious birth defects or a multiple pregnancy, where fetal reduction may be recommended to improve the outcome for the remaining fetus(es). Often the contracts provide that the intended parents have the right to make all termination decisions. . . . Surrogacy agreements usually contain a related clause that restricts the surrogate’s ability to terminate the pregnancy without the intended parents’ consent, unless...
- 1818 (2009)). The Society’s Ethics Committee writes: “Donation of embryos to support the family-building efforts of others is an important option for patients considering the disposition of cryopreserved embryos in excess of those needed to meet the patients’ own fertility goals. . . . Application of the term ‘adoption’ to embryos is inaccurate, misleading, and could place burdens that are not appropriate for embryos that have been donated upon infertile recipients. . . . The use of donated embryos for family building is an established successful option for the infertile. Like gamete donation, it has resulted in the birth of many children in the more than 25 years the procedure has been in use. . . . Requiring infertile patients who need donor gametes or patients who need donor embryos to suffer the imposition of unnecessary administrative and legal trappings of adoption and the costs that accompany them is not ethically justifiable. . . . The donation of embryos for reproductive...
- Should embryo donation be treated as an adoption and governed by adoption law? If an embryo is a “person,” adoption law applies. In 1997, an organization called Nightlight Christian Adoptions, pioneered “embryo adoption” with its Snowflakes Frozen Embryo Adoption Program. Several other adoption agencies offer embryo adoption services.
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Chapter 16 Ethical Issues and Malpractice in Family Law 411 12 results (showing 5 best matches)
- Ethical issues pervade law practice. This Chapter touches on ethical issues of special relevance to family law. The chapter also examines legal malpractice in family law.
- Lawyers practicing family law can be sued for malpractice. Among all areas of legal practice, family law is the third most frequent target of malpractice claims, behind personal injury and real estate. (American Law Institute Continuing Education Court Materials,
- The most common malpractice claim against family law attorneys relates to property division. ( ). Mallen and Smith write, “The most commonly alleged error against a family lawyer concerns the property settlement agreement or how the marital property is divided in the divorce proceedings.” (
- An attorney cannot provide legal advice to a person who is represented by counsel. Sometimes, family law clients who are represented seek a second opinion from another attorney. Is it ethical to offer a second opinion without contacting the client’s attorney? With proper disclosure, the answer should be yes. (
- Married couples seeking a divorce may ask a lawyer to represent both of them. The couple typically says, “Our divorce is amicable, and we can’t afford two lawyers. Will you represent both of us?” Dual representation is generally a bad idea, even in uncontested cases. The potential for conflicts of interest is too high. The better practice is to represent one spouse.
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Chapter 15 Juvenile Court 377 88 results (showing 5 best matches)
- The effort to preserve families was the key component of the 1980 Adoption Assistance and Child Welfare Act. “Family preservation” was the dominant paradigm of child protection in the 1980s. In the 1990s, however, critics argued that over-reliance on family preservation sometimes led to tragedy. One forceful critic of over-reliance on family preservation was Richard Gelles, who challenged the effectiveness of family preservation in his 1996 book,
- America’s juvenile courts play a central role in protecting children from maltreatment, and providing guidance and reform for children who break the law. This chapter discusses the day-to-day work of juvenile court, or, as it is called in some states, family court.
- Once the judge rules that a child is a dependent of the court, the next step is disposition—what is the goal for this child and family? CPS prepares a report for the judge, outlining the agencies’ goals for the family and the services that will be provided to help the parents achieve the goals. In most cases, the goal is reunification of the family.
- A number of courts created an exception to application of ICWA known as the “existing Indian family doctrine.” The California Court of Appeal explained in
- Child abuse reporting laws and enhanced awareness of abuse produced an increase in intervention. By the mid-1970s, a rising number of children in foster care set off alarm bells in Congress, resulting in the Adoption Assistance and Child Welfare Act of 1980. The Act required states seeking federal foster care funds—all states—to make “reasonable efforts” to avoid removing children from maltreating parents. When removal was necessary, reasonable efforts were required to reunite families. Every child in foster care had to have a “permanency plan” to return the child home or move toward termination of parental rights. For children who could not go home, Congress provided financial incentives for adoption. Finally, the Act provided financial support for adoptive parents who adopted children with special needs.
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Chapter 2 The Constitution and the Family 5 18 results (showing 5 best matches)
- The day-to-day work of family law attorneys seldom takes them into the realm of constitutional law. Yet, there is no gainsaying the impact of the United States and state constitutions on families, and on the relationship between government, families, and individuals. This chapter summarizes the principal intersections of constitutional and family law. The chapter focuses on decisions of the United States Supreme Court.
- The Supreme Court has long lauded the right to marry and raise a family. In , the Court wrote, “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.” In , the Court spoke glowingly of marriage, “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony of living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” In , the Court struck down laws against interracial marriage as violations of the Equal Protection Clause of the Fourteenth Amendment. In , the Court ruled unconstitutional a Wisconsin law that forbade certain adults who owed child support from marrying unless...
- In , the Court considered an unwed father who had not acted responsibly. Mother and father never married or lived together. When the child was four, mother married another man. When the child was eleven, the stepfather sought to adopt the child he helped raise. The genetic father had a less than sterling record of paying child support, although he often visited the child. The child expressed a desire to be adopted. The genetic father refused to consent to the adoption, which would end his parent-child relationship with the child. After a trial, the judge found adoption to be in the child’s best interest. The judge did find that the genetic father was unfit. On appeal, the genetic father argued that because he was not unfit, he had the same right to veto adoption as that possessed by a mother or a formerly married parent. When the case reached the U.S. Supreme Court, the justices ruled against the genetic father. ...the Due Process Clause would be offended if a State were to... ...a...
- ). In , the Supreme Court struck down Texas’ sodomy law. The Court noted that people enjoy a constitutional right to make certain decisions regarding intimate sexual conduct, whether gay or straight. The Due Process Clause affords “constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” ( 539 U.S. at 574). In , the Court ruled unconstitutional the federal Defense of Marriage Act, “which exclude[d] a same-sex partner from the definition of ‘spouse’ as that term is used in federal statutes.” In , the Court ruled that a state cannot prohibit minors from obtaining an abortion, but can impose limitations on minors that would be illegal if applied to adults.
- The subject of paternity is discussed in Chapter 6. In a series of decisions beginning in 1972 with , the Court addressed the rights of unwed fathers regarding their children. In the Court dealt with an Illinois law that provided that when an unwed mother died, her children automatically became wards of the state. Unwed fathers were presumed to be unfit for custody. Mr. Stanley never married the mother of his children, but he lived with the mother and their children intermittently for 18 years, until mother died. The children were then made wards of the juvenile court, and placed in foster care because Illinois law did not recognize Stanley as a “parent.” In striking down the law as a violation of the Equal Protection Clause, the Court ruled that, at a minimum, an unwed father has the right to a hearing to determine whether he is a fit parent. The parental rights of a fit parent cannot be terminated without due process and a hearing.
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Chapter 6 Parent-Child Relationship Establishing Parentage 57 33 results (showing 5 best matches)
- Children have two parents, right? A mother and a father, or two parents of the same gender. But can a child have more than two parents? In most states, the answer is no. (Myrisha S. Lewis, Biology, Genetics, Nurture, and the Law: The Expansion of the Legal Definition of Family to Include Three or More Parents, 16
- Court proceedings to establish parentage occur in several settings. (2017 UPA §§ 601 et seq.). First, to collect child support, a parentage action may be commenced in family court. A support-motivated proceeding may be commenced by the mother or by a child support enforcement agency. Second, a person who claims to be a child’s parent may commence a family court action to establish the parental relationship. Third, in juvenile court proceedings to protect children from abuse or neglect, the juvenile court needs to establish parentage. Personal
- A person is a presumed parent if the person lived in the same household as the child for the first two years of the child’s life, and openly held the child out to the world as the person’s child. (§ 204(a)(2)). Quite a few states have variations of this presumption. In California, for example, a person is a presumed parent when the person “receives the child into his or her home and openly holds out the child as his or her natural child.” (
- At common law, a child born out of wedlock was “illegitimate”—a “bastard.” Early law treated “illegitimate” children harshly. William Blackstone (1723–1780), in his
- In
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Chapter 3 Premarital Agreements 17 33 results (showing 5 best matches)
- The American Law Institute’s
- The American Law Institute (ALI), like NCCUSL, is devoted to improving the law. Indeed, ALI and NCCUSL sometimes collaborate on projects. The ALI produces Restatements of the law, including the . In 2002, the ALI published
- In the Jewish tradition, a ketuba is a document signed by a groom prior to the wedding. In the ketuba, the bride and groom exchange promises of support and fidelity. A “get” is a document that releases a woman from the obligations of the ketuba, and allows her to remarry in the faith. In a number of secular divorce cases, women sought court orders forcing unwilling husbands to grant a get so the woman could remarry. ( Involved, Empowered and Inspired: How Mediating Halakhic Prenuptual Agreements Honors Jewish and American Law and Builds Happy Families, 17 In the Illinois Appellate Court ruled that the wording of a ketuba allowed specific performance of a husband’s promise to procure a get. (
- Who should have the burden of proof regarding enforceability of a premarital agreement? The party seeking to enforce the agreement? Or the party seeking to invalidate the agreement? The 1983 UPAA places the burden of proof on the party challenging a premarital agreement. (
- States have varying rules regarding waiver of spousal support. California law, for example, provides that a premarital agreement waiving spousal support is enforceable at divorce only if the party seeking support was represented by an attorney when the agreement was signed. (
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Chapter 14 Adoption 355 47 results (showing 5 best matches)
- Louisiana and Texas, for example, had outright bans on interracial adoption. Most social workers believed it was important to place children with adoptive parents of the same ethnic background. During the 1960s, courts struck down laws against interracial adoption, and increasing numbers of mixed race adoptions occurred—mostly white parents adopting children of color. During the 1970s, critics of interracial adoption campaigned against the practice, led by the National Association of Black Social Workers. In 1972, the Association issued a position paper based on the premise that America is racist. The paper stated in part: “Black children should be placed only with Black families in foster care of for adoption. Black children belong, physically, psychologically and culturally in Black families in order that they receive the total sense of themselves and develop a sound projection of their future. Human beings are products of their environment and develop their sense of values,...family
- In the typical adoption, a court terminates the parental rights of the biological parents. Native American children are adopted this way, so long as the Indian Child Welfare Act (ICWA) is satisfied ( et seq. ICWA is discussed in § 15–15). ICWA provides, “In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” (
- As mentioned, in an independent adoption, the mother personally places the baby with the adoptive parents. But how does a young pregnant woman find a couple to adopt her baby? Craigslist? eBay? Twitter? Facebook? Let’s hope not. In some cases, the child is placed with family. In other cases, a professional assists the mother. Professionals specializing in independent adoptions—often attorneys—maintain files of prospective adoptive parents, and provide names and background information to birth parents considering adoption. In some states, limited advertising is allowed.
- Re-homing is a euphemism for the practice by which adoptive parents get rid of an adoptive child by placing the child elsewhere. Testerman writes, “A deplorable practice has emerged in the world of adoption. Adoptive families are now using the Internet to give their unwanted adopted children over to complete strangers, some of whom are traffickers, pedophiles, child pornographers, or worse. This practice is known as private re-homing.” (
- In the past, apart from stepparent adoption, adopting parents were heterosexual married couples. Lesbian and gay individuals were not allowed to adopt. In 1995, the New York Court of Appeals ruled in that unmarried couples—gay and straight—can adopt. The New York court’s decision helped change the law around the country. In , the Florida Court of Appeal ruled that a statute that prohibited gay or lesbian people from adopting served no rational purpose, and was unconstitutional. Joslin and Minter report, “As of January 2011, no state bars all lesbian and gay individuals from adopting children. There are, however, a small number of states that limit the ability of lesbian and gay people to adopt or become foster parents. Most commonly these states prohibit people living in nonmarital relationships from adopting and/or serving as foster parents.” (Courtney G. Joslin & Shannon P. Minter,
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Chapter 7 Child Custody 69 210 results (showing 5 best matches)
- For the practicing lawyer in the United States, one of the greatest challenges in Convention cases is determining the law of child custody in the child’s country of habitual residence. For example, how does one research child custody law in France, China, or Brazil? Do you understand French, Chinese, or Portuguese? Even if you understand the language, where do you turn for the relevant statutes? Google? Maybe. The U.S. State Department’s Office of Children’s Issues often has useful information. A family law lawyer in the other nation can be consulted. It is good advice to start early researching the custody law of the child’s habitual residence. In , the Seventh Circuit ruled that, for purposes of determining rights of custody under the Convention, proof of foreign law is a question of law rather than a question of fact. The court is free to “find the law” itself. In the main, however, responsibility to track down the custody law of the child’s habitual residence falls to the...
- An emerging issue in family law relates to custody disputes regarding transgender and gender-nonconforming children. A law review article by Katherine Kuvalanka and colleagues provides an excellent introduction to the issue.
- In custody litigation, should children testify? Can you think of anything appropriate than putting a child on the witness stand, in open court, in front of her parents, and asking the child to “pick a parent”? For in-depth discussion of this issue,
- Mental health professionals (MHP) play key roles in family law. (
- To decide custody, judges employ the best interests of the child standard. For a classic analysis of the best interest standard, Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminancy, 39
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Chapter 12 Intimate Partner Violence 305 60 results (showing 5 best matches)
- In 1873, the North Carolina Supreme Court ruled that a husband had no right of physical chastisement. ( ). The Court wrote, “We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not the law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances.” Cases of serious spousal abuse were prosecuted in North Carolina. Like their colleagues in Mississippi, however, the justices of the North Carolina Supreme Court felt it was unseemly for family matters to be aired in public prosecutions. In 1868, the North ...have been loath to take cognizance of trivial complaints arising out of the domestic relations—such as master and apprentice, teacher and pupil, parent and child, husband and wife. Not because those relations are not subject to the law, but because the evil of publicity...
- For purposes of protective orders, states define domestic violence broadly to include actual or attempted striking or assaulting, sexual abuse, and stalking. Pointing or firing a gun is included. Threats to harm or kill constitute IPV. (victim’s husband threatened to burn down the house with her and the child in it; and to have a “crack whore” kill her);
- IPV protective orders are available not only in civil proceedings focused exclusively on IPV. Protective orders can be granted in criminal law proceedings, family court cases, and juvenile court matters.
- In addition to IPV-POs to protect victims in intimate relationships, states have laws to restrain stalking, harassment, and sexual assault. These laws do not require a close, intimate relationship. For example, a victim may be stalked by a stranger. A neighbor across the street may engage in harassment.
- Intimate partner violence is as old as humanity. During much of Western history, society not only turned a blind eye toward most IPV, the law actually approved moderate physical chastisement of a woman by her husband. In early Roman law “the husband had the power to chastise, sell or even kill the wife, having the same authority over her as over his child.” (William L. Burdick,
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Chapter 9 Spousal Support 199 35 results (showing 5 best matches)
- In an article title “The Validity of ‘Double Dipping,’ ” Gene Trevino writes, “In the case of pensions, the double-dipping argument is valid. . . . In the case of income-producing real estate, the double dipping argument is not valid.”
- Generally, spousal support ends if a supported spouse remarries or cohabits with an intimate partner. (
- Can a spouse be forced to take a higher paying job in order to pay more spousal support? No. Consider the following facts, based on . Elizabeth has been a judge on the family court bench for 15 years, and is regarded as a superb judge. Elizabeth’s salary as a judge is $170,000 per year. Elizabeth and her husband Dan are divorcing. Dan is a teacher, with an annual salary of $50,000. In the divorce, Dan seeks spousal support, joint custody of their fifteen-year-old daughter, and child support. Dan argues that Elizabeth could double her income by resigning from the bench and becoming a “private judge.” People hire “private judges” to help them resolve disputes without formal litigation. Assume Dan is right, Elizabeth could double her income by becoming a private judge. Elizabeth, however, has no interest in resigning, and plans to remain on the bench until retirement, which is at least five years in the future. In the divorce case, Dan argues that when setting spousal and child support...
- Wisconsin courts have grappled with double counting pension awards in divorce. ( ). One solution employed in Wisconsin is to allow the retired spouse to receive the value of the pension assigned to the spouse in the divorce—in Sue’s case, $100,000—before the pension is considered income in determining support. California courts reject the double dipping argument in most scenarios. In , for example, husband received his entire pension in the divorce, while wife got the family home. It was proper to consider husband’s retirement income for purposes of determining spousal support. The Court of Appeal wrote, “Double counting of a pension occurs only on those occasions when jurisdiction is reserved over the pension, and it is divided in kind as payments fall due. Then each spouse is, properly speaking, an owner of a portion of ...division is effected at divorce and one spouse is awarded the entire pension, it is not in any way improper to consider the pension benefits as entirely [the...
- States have statutes listing factors to consider in awarding spousal support. The California statute is typical: “In ordering spousal support . . . , the court shall consider all of the following circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; and the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the ...to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education...
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Title Page 4 results
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Chapter 8 Child Support 181 39 results (showing 5 best matches)
- Parents have a moral and legal responsibility to support their children. Arizona law provides, “Every person has the duty to provide all reasonable support for that persons’ natural and adopted minor, unemancipated children” ( Ariz. Rev. Stat. § 25–501.A). California law states, “A parent’s first and principle obligation is to support his or her minor children according to the parent’s circumstances and station in life.” (
- All states have the Uniform Interstate Family Support Act (UIFSA). The UIFSA works in tandem with the federal Full Faith and Credit for Child Support Orders Act (FFCCSOA) ( ). The two laws establish procedures and jurisdictional rules regarding the creation and enforcement of child support orders across state lines. Only one state at a time has jurisdiction to make or modify child support. (
- The Kentucky Court of Appeals’ decision in is to the same effect. Nancy and Tom Stevens divorced. They were frequently in family court fighting over visitation and child support. Eventually, a trial judge relieved Tom of his child support duty until Nancy cooperated with visitation. The Court of Appeal reversed because a Kentucky statute provided: “If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended; but he may move the court to grant an appropriate order.” The appellate court wrote that the statute “codifies the common law position that a failure of one party in a divorce action to fulfill his obligation does not relieve the other party of his obligation with respect to either child support or visitation rights. . . . [T]he public policy behind the statute is to insure that the child in question is adequately supported.”
- In 1935, during the height of the Great Depression, Congress passed the Social Security Act. Part of the Act created the program called Aid to Families with Dependent Children (AFDC). This program supplied federal funds to states to help support low income parents and children. Over the decades, AFDC provided a financial lifeline to millions of children. In 1996, AFDC was replaced with Temporary Assistance for Needy Families (TANF).
- Several states have statutes codifying the rule. In California, for example, the Family Code specifies that the duty to pay child support is not affected by the custodial parent’s refusal to facilitate visitation. (
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Outline 54 results (showing 5 best matches)
Preface v 1 result
Chapter 11 Annulment 295 21 results (showing 5 best matches)
- Bigamous marriage occurs when a married person marries a second time while the first marriage continues. (
- Consider Sue and Bill, who were married fifteen years. They divorced three years ago. In the divorce, Sue was ordered to pay Bill spousal support of $4,000 per month. The divorce decree provided that spousal support would end on Bill’s death or remarriage. A year ago, Bill married Beth. Upon Bill’s marriage to Beth, Sue stopped paying spousal support. Recently, Bill obtained an annulment of his marriage to Beth. As soon as the annulment was final, Bill returned to family court and filed a motion requesting the judge to order Sue to resume spousal support. Bill relies on the relation-back theory. According to Bill, the annulment relates back and wipes out his marriage to Beth. In other words, Bill did not remarry, and Sue owes him support. In cases like this, courts generally refuse to utilize relation back to reinstitute spousal support. Courts believe the supporting former spouse is entitled to rely on the remarriage, and to reallocate their money. (
- Because a void marriage was never really a marriage, it is technically not necessary to bring an annulment action—there is nothing to annul. The “marriage” was void . The California Court of Appeal explained in , “In California, a void marriage is invalid for all purposes from the moment of its inception, whether or not it has been so declared in a court of law, and its invalidity may be shown collaterally in any proceeding in which the fact of marriage may be material. . . . There is a fundamental difference between a judgment of dissolution and a judgment of nullity. While a judgment of dissolution terminates a valid marriage, a judgment of nullity declares that the marriage was void from its inception.” Yet, void “marriages” often last years, and it is useful to bring an annulment proceeding or a divorce so the court can clarify the parties’ marital status and adjudicate issues pertaining to custody of children and property.
- Annulment ends marriage, and is an alternative to divorce. Historically, complete divorce (
- When a person has been married to different people, the law presumes the most recent marriage is valid. In
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Appendix B Hague Convention on the Civil Aspects of International Child Abduction 173 28 results (showing 5 best matches)
- The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
- (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) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.
- After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.
- An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
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Index 457 15 results (showing 5 best matches)
Appendix A Uniform Child Custody Jurisdiction and Enforcement Act 159 72 results (showing 5 best matches)
- (a) Before a child-custody determination is made under this Act, notice and an opportunity to be heard in accordance with the standards of Section 108 must be given to all persons entitled to notice under the law of this State as in child-custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
- (a) Except as otherwise provided in Section 204 or by other law of this State, if a court of this State has jurisdiction under this Act because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
- A child-custody determination made by a court of this State that had jurisdiction under this Act binds all persons who have been served in accordance with the laws of this State or notified in accordance with Section 108 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
- (7) “Home State” means the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
- (a) A court of this State may grant any relief normally available under the law of this State to enforce a registered child-custody determination made by a court of another State.
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Chapter 4 Cohabitation 33 7 results (showing 5 best matches)
- New Jersey law provides that an agreement “by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination” must be in writing. (
- Half a century ago, living together in an intimate relationship outside marriage was considered “living in sin.” Today, it is common for lovers to live together. Indeed, in the twenty-first century, cohabitation is normal. (
- Regarding property, the system of marital/community property applies to married couples and registered domestic partners, not to cohabitants. Thus, cohabitants do not acquire marital or community property. A court may apply principles of non-marital property law to partition interests in property. (
- At an earlier time, courts believed it was against public policy to enforce contracts between intimate partners living together. In 1979, for example, the Illinois Supreme Court ruled in that such contracts are unlawful. The Illinois Supreme Court reaffirmed this stance in 2016 in . Today, in most states, unmarried cohabitants can contract with each other regarding property, support, children, and other matters. ( , decided by the California Supreme Court in 1976. Lee Marvin was a famous movie star. Lee and Michelle lived together for seven years, but did not marry. All property acquired during the relationship was in Lee’s name. When the relationship ended, Michelle claimed an oral contract existed in which Lee promised that all property acquired during the relationship belonged to both of them, and that Lee would support her for the rest of her life. Lee denied a contract existed. The California Supreme Court held that “courts should enforce express contracts between nonmarital...
- Alimony is reserved for married couples. The term “palimony” was coined to refer to support paid to a former non-marital partner. As stated earlier, absent an agreement, there generally is no legal obligation to support a former non-marital partner. In cases where there is an express or implied agreement to provide support, the support is often called palimony.
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West Academic Publishing’s Law School Advisory Board 11 results (showing 5 best matches)
- Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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Table of Cases xxiii 45 results (showing 5 best matches)
- Publication Date: July 18th, 2019
- ISBN: 9781684672448
- Subject: Family Law
- Series: Nutshells
- Type: Overviews
- Description: Few areas of law practice cover as many issues as family law. The subject embraces marriage and divorce, annulment, custody of children, spousal and child support, complex property issues, paternity, domestic violence, adoption, and alternative means of reproduction. Each of these topics itself is complex. For example, within the broad subject of child custody lie the issues of interstate move away cases, international parental child abduction, and the impact of domestic violence on a parent’s right to custody or visitation. In addition to purely legal issues, family law has a large psychological component, touching on some of the most important and sensitive aspects of human nature and interaction, such as, what is a family, what are the rights and responsibilities of parents toward children, and how should society respond to child abuse and domestic violence? All of these issues, and more, are discussed in this Nutshell. The book provides a thorough introduction to this challenging field of practice.
