Marriage
·
Courtship and premarital
agreements
o
Heart balm statutes
§ Statutes
that increase or decrease the right to sue for a broken promise to marry
§ Rivkin v. Postal
·
Tennessee requires written
evidence of the promise or two disinterested witnesses to an oral promise to
marry. Family members are not disinterested.
o
The engagement ring and rescinded
promise to marry
§ Two
approaches
·
Fault-based
o
Whoever broke the promise is at
fault and loses title to the ring
·
No-fault (Indiana)
o
Full title does not vest in Donee
until the marriage occurs. Even if the Donor is at fault in breaking the
promise to marry, he still gets the ring back.
o
Premarital agreements
§ In re Shanks
·
Three requirements for valid
premarital agreements
o
Voluntariness
o
Conscionability
§ Substantive
conscionability
·
It can only put the parties back
in the situation they were in before the marriage, no more.
§ Procedural
conscionability
·
Parties must have equal
bargaining power in the agreement.
o
Opportunity to read and
understand the terms.
·
Marriage rules
o
Two rules
§ Void
marriage
·
Manifestly unlawful. Marriage is
void ab initio and legally never
existed.
§ Voidable
marriage
·
The marriage is valid until it is
declared invalid.
o
Loving
v. VA
§ States
cannot apply racial restrictions on marriage.
o
In
re adoption of M.
§ Incestual
marriages are forbidden. But adoptive relationships can be severed under truly
exceptional circumstances. When an adoptive father conceives a child with his
adopted daughter, the best interests of the newborn are to be raised in a traditional
family. The adoption is voided as to the father so that they can marry.
o
State
v. Holm
§ Bigamy
is the act of marrying someone with the knowledge that you or her are married
to somebody else.
§ One
can be convicted of bigamy even if he gets married only in a private ceremony
without seeking a marriage license from the state.
§ The
criminalization of bigamy is constitutional.
·
Equal protection
o
The statute is facially neutral.
It does not punish the status of being a religious polygamist but the act of polygamy.
o
Kirkpatrick
v. District Court
§ The
child wants to marry pursuant to a state statute that requires only one parent
to authorize it. The father challenges the statute’s constitutionality. There
are three fundamental interests:
·
Father’s parental right to forbid
her from marrying
·
Mother’s parental right to
authorize the marriage
·
Daughter’s fundamental right to
marry.
§ With
so many competing interests, the standard for determining the constitutionality
is reasonableness. Because the statute will always be a two versus one scenario
AND judicial discretion, it is a good balance of interests.
§ The
minor’s marriage is voidable. She can void it when she reaches majority.
·
Annulment
o
Blair
v. Blair
§ Fraud
can be grounds for annulment.
o
Annulment puts the parties back
in the position they were in before the marriage. No property division, spousal
support, or other divorce questions.
·
Marriage licenses
o
Carabetta
v. Carabetta
§ Two
requirements for marriage:
·
License
·
Solemnization
§ The
parties had a religious ceremony but no license, held themselves out as
married.
§ The
statute does not expressly say that a marriage is void ab initio or voidable due to lack of a license. Case law says that
a license with no solemnization is still a valid marriage, so a license is not
absolutely necessary.
·
Common law marriage
o
Jennings
v. Hurt
§ Requirements
for CL marriage
·
Agreement
·
Cohabitation
·
Capacity
o
Must be single and unmarried
throughout.
·
Community recognition
o
Parties must hold themselves out
as married.
·
Putative spouse doctrine
o
An equitable remedy for an
unknowing putative spouse who is harmed by a marriage that is later found to be
void ab initio or declared invalid (e.g.,
for intestacy laws, alimony, etc).
o
In Indiana, the doctrine will
never supersede spousal rights of a valid marriage.
·
Marital duty of support
o McGuire
v. McGuire
§ Courts
will not get involved in disputes within intact marriages
o
Doctrine of necessaries
§ At
common law, the man is required to provide the wife with necessaries (food,
clothing, shelter, and medical care). The husband is liable for the wife’s
contracts to purchase necessaries. The same rule applies to children.
Reproduction
·
Abortion
o
Roe
v. Wade
§ Mother’s
interest in her right to privacy outweighs the state’s interest in protecting
the unborn during the first trimester
·
Parental autonomy
o
Meyer v. NB; Pierce v. SoS
§ Fundamental
familial interest in making education decisions balanced with state’s interest
in educating children.
·
Choosing subject matters, public
or private school.
o
Prince
v. MA
§ Child
labor laws. State has a higher interest.
o
WI
v. Yoder
§ Compulsory
education.
o
Troxel
v. Granville
§ The
statute provides that any third party can sue for visitation rights and win if
it is in the best interests of the child.
§ The
law is overbroad and infringes the parent’s right to parental autonomy.
·
Emancipation
o
State
v. RR CR
§ Moving
out and living a disapproving lifestyle is not sufficient for emancipation.
§ E.g.,
formal proceedings, getting married, or enlisting in the military.
Divorce
·
Jurisdiction
o
At least one spouse must have six
months residency in Indiana and three months residency in the county in which
the divorce is filed.
·
Non-married persons
o
Marvin
v. Marvin
§ Property
distribution for cohabitating couples upon “divorce”
§ Parties
had an express contract; P to render homemaker services, D to render support,
and to share all property equally. The contract is enforceable, despite
questionable public policy concerns. Equal division of the property.
§ The
contract can be express or implied.
·
Fault grounds
o
Some states look to fault to
determine the property distribution. Indiana does not.
o
Lister
v. Lister
§ The
act of adultery does not have to be
proved. Only have to prove:
·
Infatuation with another person,
·
Adulterous inclination, and
·
Opportunity to commit adultery.
§ That
H paid for her divorce, allowed her to move into the mobile home next to his
house, to drive his cars, and that they took trips together is sufficient to
prove fault for adultery.
§ Connivance
(express or implied consent) is a defense to a claim for divorce on adultery.
o
Muhammad
v. Muhammad
§ Cruel treatment is putting the
spouse in danger or in fear of danger to life, limb, or health by unnatural
conduct that makes the marital relationship revolting.
§ A
male-dominated culture that restricts the W’s diet and leads to nervous
breakdown is cruel treatment to a modern woman.
o
Reid
v. Reid
§ Desertion is breaking off
cohabitation with the intent to desert the marriage. Constructive desertion
is causing a spouse to break off cohabitation.
§ Even
though the marriage was unsatisfactory, W is at fault because she left and
filed for divorce two months later, which speaks to her intent to desert.
§ H’s
conduct cannot be considered constructive desertion because the reason he
failed in some duties (raising the kids and sexual contact) was due to his
exceling at other duties (working and providing for the family).
o
Parker
v. Parker
§ Under
the doctrine of recrimination, if
both parties are at fault, then the court will not grant a fault-based divorce.
The conduct of each party must be equally wrong.
§ Verbal
abuse, firing weapons outside her business, and causing hospitalization for
severe anxiety is much worse than W’s adultery after the separation
o
Haymes
v. Haymes
§ Cohabitation
after filing for divorce does not necessarily mean that the spouse condones the
other’s conduct and does not bar a fault based divorce.
·
No-fault divorce
o
Bennington
v. Bennington
§ Living
separate and apart is a valid ground for no-fault divorce. Simply living in a
separate dwelling is not sufficient if the spouse continues to contribute to
household duties.
·
Property distribution
o
Marital property schemes
§ Separate
property
·
Each spouse owns property
separately both before and during the marriage.
·
On divorce, all property is
subject to equitable distribution,
but each spouse retains separate rights to gifts, devises, and intestate
shares.
§ Community
property
·
Property acquired during the
marriage is owned equally. But gifts, devises, and intestate shares are owned
separately.
·
On divorce, community property is
split equally between the two.
o
Ferguson
v. Ferguson
§ For
equitable distribution, the court looks at the totality of the circumstances to
determine a reasonable allocation. W was entitled to part of H’s separate
property because she could have earned it herself if she had pursued a career
rather than being a homemaker.
o
Distribution in Indiana
§ Hotchpot
theory
·
ALL property (even non-marital
property) that each party acquired up until divorce is subject to distribution.
§ The
distribution must be fair and reasonable with a rebuttable presumption that
there should be an equal division.
·
Factors
o
Contribution of each spouse to
the acquisition of certain property;
o
Whether certain property was
brought into the marriage or acquired by gift;
o
The economic circumstances of
each spouse, especially the custodial spouse;
o
Conduct that caused the
dissipation of property;
o
Current earnings or potential
earnings for each spouse.
·
Maintenance/Alimony
o
Three types
§ Permanent
§ Rehabilitative
·
Just until the spouse gets on her
own two feet.
§ Reimbursement
·
To reimburse one spouse who paid
for an expense(s) of the other spouse, like tuition.
o
Mani
v. Mani
§ It
is against public policy to consider fault in alimony decisions. But, when the
fault had an adverse economic impact on the pecuniary interests of the marriage
OR when the fault was egregious, it can be considered.
o
Michael
v. Michael
§ Distribution
analysis
·
H only worked for 1/3 of the
marriage, but he cooked and chauffeured W. In turn, W excelled at work. H is
not necessarily entitled to an equal division, but the division should be
higher.
§ Maintenance
analysis
·
H should have gotten alimony. He
plans on going into a competitive field, so he must go back to school for
training.
o
Rosenberg
v. Rosenberg
§ Alimony
is based on need. Need is a subjective standard: maintaining the same lifestyle
as she had during the marriage. W was wholly dependent on H and had no career
skills.
§ The
court awarded a lump sum distribution to W based on the following factors
·
Contributions to the well-being
of the family;
o
H worked and neglected the family
·
Circumstances leading to divorce;
o
H committed adultery and drove W
to substance abuse
·
Contributions by each party in
obtaining marital property
o
W furnished and maintained the
home by herself
§ The
court shifted the legal fees to the loser; policy of putting parties on equal
footing.
o
Lucas
v. Lucas
§ Marriage,
cohabitation, de facto marriage, etc.
does not per se end alimony
obligations.
§ Although
W entered a de facto marriage with
someone else, was receiving marriage benefits, etc., there was no change in
circumstances big enough to warrant full termination of alimony.
·
Marital property
o
Bender
v. Bender
§ For
unascertainable pension benefits, we can either
·
Determine the likelihood that it
will vest (the present value) and award the value to the other spouse with
other marital property; or
·
Assume that it will vest, award a
percentage, and enforce the award once it vests.
o
In Indiana
§ An
unvested pension is NOT “property”; does not go into the hotchpot.
§ Divisible
property
·
Vested pensions
·
Personal injury awards
·
Professional goodwill
·
Disability insurance benefits if
premiums are paid during the marriage
·
Tax returns
·
Annuities
·
Remainder interests and life
estates in property.
§ Indivisible
property
·
Contingent income
·
Academic degrees
§ ALL
debts pre-marriage up until divorce go into the hotchpot and the court divides
them equitably.
o
Roberts
v. Roberts
§ An
academic degree is not a marital asset, even if it was financed by the other spouse.
However, the degree will be considered in determining H’s potential for future
income.
§ Debts
go into the hotchpot as well, but the court assigned the debts to H.
·
Taxes
o
Child support is not GI to Payee
or deductible to Payor.
o
Alimony tax treatment can be
changed according to the terms.
o
Only the custodial parent can
claim a child as a dependent.
Children
·
Child support
o
Downing
v. Downing
§ Child
support calculation is based on the reasonable needs of the child. Reasonable
means maintaining the standard of living that the child would have had if the family were still intact.
o
Indiana’s CS statute
§ Cannot
determine it by premarital agreement
§ Does
not take fault into account
§ Only
considers:
·
Custodial parent’s financial
resources;
·
Non-custodial parent’s financial
resources;
·
The standard of living the child
would have had if the family were still intact; and
·
Child’s physical or mental
condition and educational needs.
·
College expenses
o
Curtis
v. Kline
§ Requiring non-custodial parents of non-intact
families to pay for college expenses violates EP because it does not require
the same of intact families.
o
Indiana’s statute
§ Child
must file before the age of 19
§ The
amount the NCP must pay is based on
·
The child’s aptitude and ability
·
The child’s ability to pay for it
herself through:
o
Work
o
Loans
o
Financial aid
·
Each parent’s financial
resources.
§ The
normal child support paid to the custodial parent is reduced by funds paid for
education.
·
Altering child support
obligations
o
Pohlman
v. Pohlman
§ The
law does not allow NCPs to request a decrease in CS obligations because of
subsequent children. The law furthers a legitimate state interest in
maintaining the intact standard of living for the first children and NCP has
notice that subsequent children do not warrant a change in circumstances. But,
if the CP ever asks for increased support, subsequent children are a defense to
increased support.
o
Olmstead
v. Ziegler
§ In
determining a NCP’s financial ability to pay CS, the NCP’s actual earnings are
irrelevant. The NCP’s reasonable earning potential is what matters. NCPs cannot
willfully stop working and pursue a different career and ask for a decrease in
CS obligations. There must be an actual event that causes the NCP’s earning
potential to decrease.
§ Indiana
follows this rule.
·
Enforcement
o
State
v. Oakley
§ Instead
of incarceration for failure to pay CS, the judge put the NCP on probation with
the condition that he could not have any more kids until the arrears were paid
or the probation period expired. Jail is not an efficient means to punish
deadbeats.
§ This
is a minority rule. It encourages abortion, infringes the fundamental right to
procreate.
·
Jurisdiction
o
Kulko
v. Court
§ A
visitation agreement is not enough minimum contacts to confer personal
jurisdiction. Doing so would discourage visitation.
o
Draper
v. Burke
§ Uniform
Interstate Family Support Act
·
Child custody
o
Devine
v. Devine
§ Tender
years presumption is unconstitutional on EP. A “primary caretaker” presumption
is OK because it is facially gender-neutral.
o
Palmore
v. Sedate
§ The
best interests of the child is the standard for custody. Race and social stigma
is not a factor, except in preserving minority cultures.
o
Sagar
v. Sagar
§ Parents
had joint legal custody but could not agree on a religious ceremony. The child
can decide for herself when she reaches an age of understanding.
o
Fulk
v. Fulk
§ Fault
is not a factor in determining custody. However, if a fault is characteristic
of something that would not be in the best interests of the child to be exposed
to, it can be considered. Affairs, violence, and accidents signal a lack of
integrity, responsibility, and stability and weigh against granting custody.
o
Rowe
v. Franklin
§ Be
careful about going beyond the statutory factors for best interests. Financial
resources are not a best interests factor unless one parent cannot even provide
basic necessities.
o
Peter-Reimers
v. Reimers
§ Fault
is not a factor, but domestic abuse is a factor. The divorce was granted on
extreme cruelty for mental and physical abuse. The domestic abuse was mental
because H had an affair and physical, too.
§ In
Indiana, domestic abuse is sufficient to deny custody and create a presumption
of supervised visitation.
o
Bell
v. Bell
§ Legislatures
prefer joint physical and legal custody because it encourages both parents to
be actively involved in the child’s life.
§ That
the parents could not decide on one thing (the daycare provider) was not enough
to award full legal custody to mom.
·
Visitation
o
Hanke
v. Hanke
§ In
determining duration, frequency, and the need for supervision of visitation,
the best interests of the child is the standard.
o
Turner
v. Turner
§ Suspending
visitation for failure to pay child support is only appropriate when the NCP
has the ability to pay but refuses to do so. It is not in the best interests of
the child to keep a poor NCP away from the child.
o
Troxel
v. Granville
§ Third
party visitation statutes violate the fundamental interest in parenting.
·
Judicial determinations
o
McMillen
v. McMillen
§ When
both parents are equally fit and cannot agree on physical custody, the child’s
preference should be taken into account.
§ After
the age of 14 in Indiana.
o
Leary
v. Leary
§ Guardians
ad litem are appointed at the
discretion and direction of the court. They can serve as advocates,
factfinders, or somewhere in between.
o
In
re Rebecca B.
§ Expert
testimony is helpful to determining child custody. Experts should meet with all
parties to get a full picture that provides credible testimony.
o
Ciesluk
v. Ciesluk
§ When
it is necessary to modify custody or visitation, there is an equal burden on
both parents to prove the positives and negatives of modifying.
·
Policy concerns
o
Clark
v. Jeter
§ The
statute of limitations for filing for child support must be reasonable. Six
years from birth is too short.
§ Mom
might not want to sue for a while to maintain an amicable relationship with
dad. Mom might not realize the need for support until later when costs increase.
o
Wallis
v. Smith
§ A
contract for mom to use birth control is not enforceable. Mom’s breach does not
absolve dad of child support obligations.
o
Stanley
v. IL
§ A
presumption that unwed fathers are unfit parents is unconstitutional. Unwed
fathers must be given a hearing to determine their fitness as a parent.
o
Michael
H. v. Gerald D.
§ A
presumption that the husband is the father of the wife’s child is
constitutional. It can only be rebutted by proof that the husband was impotent
or absent for a significant period of time such that it would be impossible for
him to be the father. Any other rule would allow any third party to arbitrarily
penetrate any intact family and demand paternity formalities.
·
Termination of parental rights
o
Smith case
§ Foster
parents have no constitutional parental rights.
o
Santosky
v. Kramer
§ Termination
of parental rights on a preponderance of the evidence that the parents were
unfit and failed to maintain contact with the children or plan for their future
was unconstitutional on Procedural Due Process.
§ Three-pronged
PDP standard
·
Private interests at stake
o
Fundamental parental rights
·
Risk of error
o
The PE burden is low, same as a
tort standard. But the proceeding is similar to a criminal trial. The state has
unlimited resources while parents have limited resources.
·
Public interests at stake
o
The state has an interest in
having cheap, efficient proceedings and a higher interest in protecting
children from neglect.
§ The
private interests vastly outweigh the state interest. Termination of parental
rights requires something higher than PE of unfitness.
o
State
v. Brady
§ Termination
of parental rights requires compelling circumstances. The court must recognize
when a mother is on the right track and on her way to becoming a fit parent. If
there is evidence that she will one day reasonably be able to be a fit parent,
then termination of parental rights is not appropriate; the child must remain
in foster care.
·
Child abuse
o
Indiana rules
§ Everyone
is a mandatory reporter of child abuse based on a subjective standard of what
constitutes child abuse.
§ Child
in Need of Services
·
The burden for DCS to prove that
a child is CHINS is PE.
·
Adoption
o
Indiana rules
§ NO
equitable adoption. There must be formal proceedings.
§ Surrogacy
contracts are unenforceable.
§ Same
sex couples and unmarried cohabitants can file a joint petition for adoption.
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