1. Exclusivity and longevity of th relationship
2. The members hold themselves out as a family
3. Financial commitments among th family members
4. Emotional commitments among th family members
5. Interconnectedness (reliance and dependence)

1. Divorce law statutes will not apply to distributing property for non-married cohabitating
2. Courts can enforce express contracts with regard to certain aspects of the relationship
3. Courts might consider implied contracts under quantum meruit
4. Contracts between cohabitating couple are not presum

Boswell test

1. Capacity to enter into the marriage
2. Mutual agreement to a marriage retaltionship to the exclusion of all other relationships
3. Public recognition of the relationship as a marriage
4. Also: continuous cohabitation 

License: Sometimes not required.

Assurances made to the officiator

1. Incapability (i.e. age)
2. “Innocent” bigamy
3. Fraud
4. Coercion
5. Unsound mind

1. Participation in marriage ceremony
2. A good faith belief that the marriage was valid at the time it was entered into.  Good faith is presumed

No.

1. Negative eugenics
2. Recognized moral and religious offense
3. Negative eugenics
4. Family harmony
5. Social taboo
6. Protecting welfare of young females.

1. Parents
2. Sibling
3. Ancestors (by blood)
4. Descendents (by blood)
5. Uncle/aunts – nephews/nieces

Depends but usually yes. 

Affinity is prohibited as well as consanguinity for those relations that cannot marry (See Singh v. Singh) 

1. She should use it exclusively and continuously
2. She should not use another name solely for purporting fraud
3. Also look at certain statutory requirements

This doctrine is scrutinized carefully and under modern perspectives.  They used to be based on a husband’s obligation to provide his wife with necessaries of marriage.  This is unconstitutional and any application should be gender-neutral. 

1. It was temporary not permanent
2. Such orders are only issud for good cause showing
3. Serves both the parties’ interest and the government’s interest
4. Reviewable with notice

Impotency

Adultery

Conviction of felony

Desertion for more than 1 year

Habitual inebriation

Inhuman, cruelty

Willful neglect of necessities

Incurable insanity 

Connivance

Collusion

Condonation

Recrimination

1. Incompatibility or irreconcilable differences (proven by either party)
2. Voluntary separation
3. Separation for more than a minimal period regardless of circumstances (1 – 3 years)
4. Where death is presumed (Enoch Arden laws)

1. They are fair, equitable, and reasonable and made for fair consideraion
2. They were entered into voluntarily
3. Each parties is aware of his/he rights and the extent of waiver and afforded opportunity to consult an attorney
4. Cannot encourage divorce
5. Not expected to make a spouse the ward of the state
6. In writing (SOF)

Also note that states will differ with regard to a duty to disclose (usually imposing none)

Equitable property states

1. Fault (this is less so) though may still be used particularly in community property states
2. Station in life
3. Economic partnership
4. Support needs – do not want one spouse to become a ward of the state

1. Income and property if both parties

Age and health of both parties

1. Duration of marriage
2. Ability of party seeking maintenance to be self-supporting – period of time needed to becoe employable
3. Reduced or lost earning capacity as a result of foregoing education or career advancement
4. Children
5. Tax consequences to either party
6.  Any wasteful dissipation of marital assets by one of the parties or extraordinary encumbrances in anticipation of divorce. 

1. Medical or dental needs
2. Educational needs
3. Life insurance to protect potential loss of support
4. Maintenance of dwelling

1. Spouse lacks property or reasonable means to be self-sufficient
2. Unable to support herself through appropriate employment
3. Custodian of a child (“caregiver alimony”) where circumstances prevent obtaining employment outside of the home

What factors are considered when determining the amount of spousal maintenance 

Cost an Arm (and a leg)

1. (S) Earnings capacity to maintain standard of living
2. (T) Marketable skills of the supported party and time to obtain education and training
3. (C) Extent to which the spouse contributed to the education, career, or professional practice of the other spouse. 
4. (R) Financial resources of the supporting spouse (balance of hardships)
5. (A) Age, physical, mental, emotional consition of the spouse
6. (M) Duration of marriage (general rule must be more than 10 years) 

1. Changed circumstances making current spousal support unfair or unconscionable
2. Finding of voluntary underemployment or unemployment
3. Conditions stipulated in the decree (remarriage, cohabitating)
4. Any rebuttable assumption of decreased need (again usually remarriage, etc.) 
5. Naturally death of the spouse will terminate spousal support (required by tax law).

1. Separate property goes to each party
2. Income and property interests of each party at time of marriage as compared to commencement of divorce
3. Duration of marriage
4. Age & health of the parties
5. Need to remain in the family residence (kids in school)
6. Lost access to inheritance or pension rights
7. Maintenance obligated to or from the party
8. Any equitable claim to joint efforts or expenditures or contributions to career of other spouse
9. Tax consequences
10. Waste or dissipation of assets or extraordinary encumbrance
11. Prenuptial agreements

1. Gifts, bequests, or devises
2. Property acquired before marriage or property received in exchange for property acquired before marriage
3. Increase in value of property acquired before marriage or any other non-marital property solely through market forces
4. Property acquired after decree of legal separation

Normally along the same lines as mariotal assets.  The character of the debt may be divided differently. 

No

Not considered property in the traditional sense (not inheritable, not sellable or alienable, cannot be shared, was acquired with personal intelligence not $$)

Relief available in reimbursement alimony

1. Financial resources of the child (?)
2. Financial resources of the custodial parent
3. Standard of living the child would’ve enjoyed if marriage had continued
4. Educational needs of the child – including special needs
5. Emotional and physical consition of the child
6. Financial resources of the noncustodial parent and other in his household
7. Tax consequences

Income-Shares Model

Purpose: Child should receive the same proportion of parents’ income as if family was still living together

1. Calculate the adjusted income available for child support of each spouse.  Compare to determine what % of the support they are responsible
2. Consult the amount of child-support the state has assigned for the combined adjusted incomes of both spouses.
3. Divide that child support figure pro-rata per step 1.

1. Was child in private school at time of the divorce
2. Can public education meet the needs – particularly special needs
3. Academic performance and circumstances affecting that
4. Family preference and religious traditions
5. Mental, physical, and emotional needs

1. Assist in enforcing other state court child support orders in the federal courts
2. Parent Locator Service
3. PRWORA:  Title IV-D Programs.  In order to qualify for federal welfare funds (formerly AFDC) states must:
4. Case registry including all child support orders
5. Directory of new hires
6. Genetic testing & Paternity extablishment
7. Revoke passports and licenses (all types) property liens, credit reports

Cannot deny illegitimate children a similar right enjoyed by legitimate children (i.e. pursue wrongful death tort re: natural mom).  There’s no rational basis between illegitimacy and tort liability. 

Cannot impose a 6 year SOL to bring paternity and child support against dad.  Does not pass intermediate scrutiny.

1. Remember – child of marriage is presumed legitimate
2. How long did putative father know? (Some states, Minn., limit claim to 3 years after birth
3. How long did presumed father serve in role as father
4. Other facts and circumstances
5. Age of child
6. Harm which may result to the child if determination of illegitimacy

1. Health, safety and welfare of the child
2. Any parental plan/agreement about custody arrangments
3. Security from any abuse, history of abuse, alohol, or drugs
4. Being with siblings and/or any blood or affinity relations
5. Caretakers who can be relied upon to provide love
6. Expeditious decision to place child in a permanent home
7. Child’s preference – provided he is mature and intelligent enough to recommend one 

1. Both parents jointly
2. Either parent solely – whichever is more likely to allow frequent contact with the other parent
3. If it isn’t a parent – whoever the child has been living with in a stable wholesome family relationship

What factors will lead a court to determine that joint custody is in the BIOTC

1. Joint custody is always presumed to be in the BIOTC
2. Both/each parent would be a suitable custodian
3. Child would suffer – psychologically, emotionally, developmentally if he didn’t have contact with both parents
4. How well do the parents communicate between themselves
5. Both parents have played an active role in caring for the child
6. It is in accord with the child’s wishes (When appropriate to inquire)
7. Whether the parents object to or agree to joint custody
8. Geographical proximity

1. When both parents agree
2. Parents disagree – but one parent request sole custody and the court finds:
3. One party I not capable of parental duties
4. One or more conditions exist that would substantially interfere with exercise of joint custody

1. Persuasive showing of changed circumstances affecting BIOTC
2. Whether the child would suffer harm if left in the present custody arrangement
3. If both parents agree that joint custody arrangement is not working

1. When and only, upon clear and convincing evidence, granting custody to the natural parent would be detrimental to BIOTC
2. When there would be a harm to child of removing him/her from stable placement. (Bennett v. Jeffreys, Painter v. Bannister)
3. “Psychological parents” – the child has formed a strong bond and would be harmed by removal AND by reuniting with the natural parents
4. When parents have forfeited their rights to the child: consider abandonment, surrender. Persistent neglect, “special circumstances”

1. Represent the child’s best interests
2. Investigate the facts and prepare a written statement of the issues – setting forth the facts that bear on the best interests of the child

1. Access to the child
2. Standing to seek affirmative  relief for the child
3. Entitled to notice of any hearing
4. Access to documents, records, pleadings, files, medical records, school records.
5. May waive privilege on behalf of the child  

1. Must assure that the move does not interfere with BIOTC. (Disruption in school, community, family support, amenities & quality of life he is accustomed to)
2. Must reasonable assure that the move does not interfere with the visitation rights of the non-custodial parent (substantial drop in visitation opportunity, transportation costs, wasn’t made for vindictive reasons)
3. Aside from that the custodial ha as much freedom to relocate as the NC parent.

Yes (See Florida)

1. Establishing some level of relationship with the child
2. Registering with the Putative Father’s Registry
3. Name on the birth certificate
4. Written identification by Mom

1. Clear and convincing evidence of serious emotional or physical harm
2. The child must be place in custody (or foster care) with extended family or
3. In a foster home approved by the tribe or an agency approved by the tribe

This a balancing test that considers the following factors:

1. The private interests affected by the proceedings (Usually liberty interests of raising a family w/o interference)
2. The risk of error created by the state’s chosen process (Look for safeguards, lack of balance between parties, too much subjectivity)
3. The countervailing governmental interest supporting the use of the challenged procedures. (Bear in mind BIOTC is not automatic – the child has “split interests” ; pecuniary interests almost never win) 

1. Relinquished parental claim to a child
2. Refused or failed to perform parental duties
3. Child has been deprived of subsistence necessities for physical and mental well being due to
   
   • Incapacity of he parent
   • Abuse or neglect
   • Severe, evident and of some duration AND these cannot or will not be remedied.
4. Child is removed either voluntarily or by order – and the condition prompting the action has not abated (or is expected to)
5. Dad is not the natural father, does not reside with the child, and fails or effuses to have contact with the child w/in a stated period.

1. Child’s health and development was and would continue to be endangered by the parental relationship
2. Parent was unable or unwilling to eliminate the harm or provide a safe and stable home.
3. The agency had been diligent in assisting the parent to correct or remedy the harmful elements
4. Terminating parental rights would Not do more harm than good.  

1. Continuous contact
2. Upon a ceratin period after the child has come under agency supervision, establishing a plan for the future of the child including steps necessary to provide a home that is adequate and stable.  Good faith alone is not enough

Keeping the child in foster care is not "adequae and stable" 

1. Establishing existence of a child support order
2. Proof that the ∆ had knowledge of the child support order
3. The ∆ failed to comply with the order.

Yes.  The parties can stipulate that the separation agreement is a separate stand-alone agreement.  However, if the J&D states that the agreement was incorporated, merged or was incorporated by reference, the terms of the agreement are superseded by the J & D.

The court held that any woman who unintentionally heightens the risk of a stillbirth could be found guilty of homicide with "extreme indifference to human life." Under this doctrine, the court held, any pregnant woman who engages in activity "potentially fatal" to her fetus could be charged with murder. 

Minn. statute: Neglect of child includes exposing inter utero.  

Do Pre-Nups require consideration?

Are Pre-nups subject to the Statute of Frauds

What 4 requirements are needed to make a Pr-NUp Valid

Yes Pre-Nups require consideration.  Entry into marriage is sufficient consideration

Pre-Nupa re suject to the Statute of Frauds and must be in writing and signed by the party against whom it is being enforeced

To qualify as a Pre-Nup it is required that:

1. It had been entered into voluntarily
2. There was fair and full disclosure by both parties as to financial net worth
3. They provide, ntl, for fair and adequate provision for the claiming spouse (can't leave him/her ward of state)
4. Some states will require independent counsel 

What 3 reasons make a marriage "void per se" and allow it to be annulled?

1. Bigamy
2. Adjudicated incapacity (mental but not physical)
3. Consanguinity

Can a void marriage be attacked collaterally (i.e. by a third party other than by annullment)  Can a voidable marriage be attacked collaterally.

Third-party challenges are permissible and any interested party may seek an anullment.  A void marriage may be attacked collaterally.

A voidable marriage may be attacked only by the spouses (one of the spouses is sufficient) 

Are there any defenses to a void marriage?  What happens to a void marriage if the impediment is removed

There are no defenses to a void marriage other than to deny the existence of the defect that makes it void.

Appears there is a split regarding making the marriage proper by removing the defect.  Some parts of the notes say "no subsequent act can ratify the marriage"; other spots in the notes say it makes the marriage voidable and can be ratified if the couple carry one (???) 

Nonage

Incurable physical impotency

Lack of capacity (other han adjudicated insanity)

Duress and Fraud

A man may not marry another who is related to him in linear consanguinity (direct blood ancestors and descendants) or his sister, aunt, or niece.

A woman may not marry another who is related to her in linear consanguinity (direct blood ancestors and descendants) or her brother, uncle, or nephew.

• B-ackground of the parties (Age, education, earning capacity)
• U-nilateral or bilateral source of the property (basically, did he buy the pipes and did she buy the thimbles)
• L-ongevity of the marriage (and where thee any othe rmarriages)
• L-et your spouse pay forYOUR education?
• S-aving the marital home for the kids to grow up in
• H-ealth of the parties
• I-Interruption of a career
• T-ax aspects

Remember, separate property goes to its owner and WATCH for pre-nups

• One of the parties must be a bona fide resident of the jurisdiction where the action is brought (If the other isn't, notice??)
• In order for a court to have jurusuduction over spousal support, property rights, etc. the court must have personal jurisidiction over the D (so, yes notice, however, in ceratin circumstances constructive notice will suffice)
• A valid divorce decree issued by one jurisdiction must be affirded full faith and credit in all other jurisdicitions.  
• Coity encourages recognition of foreign decrees however, ne party must have been domiciled there

Lump sum (They are vested)

Rehabilitative (per lecture notes)

Reimbursement

Permament (periodic) is modifiable only by deminstrating a substantial change in circumstances.

1. When the woman is married, the husband and wife are presumed to be the parents.
2. If divorced (but were married) the husband and wife are presumed to be the parents of any child within 300 days of divorce.
3. Father receives the child in home and "holds out" the child out as his own (Bio-dad)
4. Father has acknowledged paternity in writing
5. Blood or tissue show probability of 97% or higher (judicial decree?)

Two general overriding factors were used - needs of the parent and earnings of the parents.  But today, most states rely on formulaic guidelines to arrive at the amount and, to some degree, who is responsible for paying it.  Factors here are number and age of the children, parental ncome, and ceratin special needs.

Courts may also require providing insurance.

Child support will be terminated on dath of child and termination of parental rights.

Most often terminates upon age of majority, emancipation, and marriage. 

1. What is the purpose of he Uniform Child Custody Jurisdicion and Enforement Act (UCCJEA).  How is jurisdiction determined?

The UCCJEA responds to jurisdictional disputes between states - particularly if the parents have or attempting to obtain new custody orders in another state.  A set of jurisdictional priorities are established:

1. Home State Jurisdiction:  The most important jurisdictional test: A child's "home state" is the state where the child has lived with a parent for 6 consecutive months.  The state's court may enter or modify a child custody order if their's is the "home state" OR was the home state in past 6 months and parent is still living there
2. If no hm0e state (or home state declines jurisdiction) where child and 1 parent has significant connection withthe state and substantial evidence reagrding child's welfare is available
3. Any other court if no state takes jurisdiction under #1 or #2 or there is none

Court that made INITIAL DETERMINATION has exclusive and continuing jurisdiction.  (Severing "significant connection" may end jurisdiction

The Best Interest of the Child

Child's preference (weight of preference is consumate to age)

The mental and physical Health of the parties involved

Instiutions - Schools, Community, Church

Pecuniary welfare

Siblings, natural ties and interaction and interrelationships

Substantial or material change in circumstances. 

Courts MAY consider only circumstances occurring after the original order and may limit modificiations until after a certin and reasonable period of time (e.g. one or two years)

Don't take the kid(s) out of the state.  

The new "circumstances" might include a relocation by this client.  A grant to move the child out of jurisdicition is possible but it is best for the court to make that determination.  Moving a child out of jurisdiction might be a violation of custody or visitaton orders and hould be done so only after such orders have been modified. 

Yes...BUT

There is no federal writ of habeas corpus for child custody cases (only state HC proceedings)

Only for custody cases - not visitation cases

File a copy of the custody decree in Illinois and obtain an order from that state to enforce the decree.  

Alternatively, Dad can bring a habeas corpus action in Illiniois and serve on Mom.

The rule at common law is that since child custody orders are modifiable, they are NOT final orders and not subject to FFC.  THe federal Parental Kidnapping Prevention Act mandates FFC in such cases where the Act's juridictonal standards have been met.

Visitation orders are also modifiable, do not fall under the PKPA and therefore, do not qualify for FFC.