I.

BEFORE MARRIAGE
A. BREACH OF THE PROMISE TO MARRY
1. Rare today in most states – like other “heartbalm” actions, actions for
breach of promise to marry have been abolished by statute in most
states.
2. When used, provides for tort damages including actual damages
(expenditures made in preparation for marriage), loss to reputation,
mental anguish, and injury to health. Punitive damages may also be
available if P can show that D acted maliciously.
B. GIFTS IN CONTEMPLATION OF MARRIAGE
1. Gifts made conditioned on the subsequent marriage, like engagement
rings, are null (and must be returned) if the marriage fails to take place.
2. Whether a gift will be deemed to be given in contemplation of marriage
(and thus recoverable by the donor if the marriage does not occur)
consider:
 The type of property given
 Fraud
 Conditions attached to the gift
 Donor’s intent

C. ANTENUPTIAL (PREMARITAL) AGREEMENTS

1. Many states have adopted the Uniform Premarital Agreements Act
(UPAA). Under the UPAA, parties to the agreement may contract with
respect to:
 Disposition of property upon separation, dissolution, death, or any
other event
 Modification or waiver of spousal support (alimony). Generally, a
waiver of alimony will be upheld unless doing so will cause the
disadvantaged spouse to become a public charge (dependent on
public assistance from the government)

NOTE: this is not an exhaustive list – also, courts cannot be bound by

provisions in the agreement regarding children (e.g., child custody
provision, preventing the rights of a child to parental support).

2. Purpose - Premarital agreements address rights of the parties in the event

of death or divorce
3. Requirements for Validity
 Must be in writing and signed by both prospective spouses
 Entered into voluntarily (without fraud, duress or overreaching)
 Must be conscionable when executed
  Full disclosure of assets OR proof that party had or reasonably could
have had independent knowledge before executed
o Party may forgo receipt of such disclosure with written
waiver

NOTE: Some courts will consider general fairness and whether the
parties were represented by independent counsel – when a fair and
reasonable economic provision for the claiming spouse has not been
made, the agreement is presumed to be the product of overreaching. To
overcome the presumption, the other spouse must show that there was
full and fair disclosure AND an opportunity to consult independent
counsel.

4. Choice of Law - The parties can agree on the state law to apply and if
not, the law of the state with the most significant relationship to the
parties and the transaction OR the law where the agreement was
executed will apply.

II. (CEREMONIAL) MARRIAGE

A. REQUIREMENTS
1. License
 Some states require a medical certificate showing no disease
 Most states provide a 72-hour waiting period after the application
before the ceremony can take place

NOTE: Failure to meet procedural requirements will not invalidate the

marriage (i.e., defect in marital license will not invalidate the marriage)

2. Solemnization: Ceremony with authorized officiant

3. NO legal impediments to marriage
 Consanguinity and Affinity
o Cannot marry ascendants, descendants, siblings,
aunt/uncle, niece/nephew, whether by whole of half blood
(consanguinity)
o Many states prohibit marriages between those related by
marriage, step-relations, or adoption (affinity)
o Some states permit marriage between first cousins
 Bigamy or Polygamy – cannot be married to someone else

4. Capacity to consent
 Capacity – must have the mental ability to consent at the time of
the ceremony
o Consider someone under the influence of alcohol or drugs
or mentally handicapped
  Age – must be of the age of majority, generally 18; parental (16-17)
or judicial consent (under 16) required or underage person to marry

B. COMMON LAW MARRIAGE

1. Generally, there are 3 requirements for a valid common law marriage:
 Consent to the marriage relationship (not just to co-habit)
o Must have the capacity to consent and no legal
impediments to wed (see #3 and #4 of ceremonial
marriage)
Note: Capacity – if an impediment exists and is later
removed after an otherwise valid common law marriage
was formed, most states will recognize the validity of the
common law marriage as of the date of removal of the
impediment. Ex. W married H in 1995. In 1997, W and H
separated, but did not divorce. In 2000, W began living with
Mr. X. They held themselves out to the public as husband
and wife and otherwise (but for the impediment of the prior
marriage) met the requirements for a common law
marriage. In 2014, H died. From 2000 – 2014, W and Mr. X
were not validly married because the impediment still
existed. After H’s death in 2014, W and Mr. X would be
viewed as validly married if they continuously cohabited
with the understanding that they were married.
 Co-habitation
 Holding out publicly as husband and wife
o Indications of “holding-out” – using a common last name,
having a joint bank account, telling people in the
community that they consider themselves married, and
filing joint taxes
2. If a valid common law marriage is formed under the laws of one state, it
will be regarded as a valid marriage in other states, even though those
states may have abolished common law marriages.
C. MARRIAGE BY ESTOPPEL OR PUTATIVE MARRIAGE
1. Equitable remedy that may be given by some courts to the innocent
party who acted in good faith in entering a marriage that was
subsequently declared invalid. Ex. if W in good faith goes through a
marriage ceremony with H, who later turns out to be a bigamist, she may
be viewed as a putative spouse.
 In some states, the putative spouse can acquire all the rights of a
legal spouse, including rights to alimony and property, when the
marriage is invalidated.
III. RIGHTS AND RESPONSIBILITIES AMONG SPOUSES
A. PROPERTY
1. Each spouse owns and controls his or her own property both before and
during marriage. But in the event of divorce, title will not be dispositive
in the equitable division of property acquired during marriage. Ex. Even
though title to all properties acquired during the marriage is held under
H’s name, not all property will automatically belong to H after divorce.
2. Generally, if spouses take title to real estate in their joint names, a
tenancy by the entireties is presumed and therefore one spouse cannot
convey or encumber the property without the consent of the other
spouse.
B. SUPPORT
1. During marriage, spouses owe support to one another.
2. The doctrine of necessaries can be used to make one spouse liable to
third parties for the other spouse’s purchases for necessary expenses,
such as food, clothing, and health care. Ex. spouses are not divorced
(still married) but living separately; one of the spouses goes to the
hospital for an ER. Hospital wants to collect on that medical bill. The
Hospital can collect that bill from either spouse.
C. SPOUSAL ABUSE ORDERS
1. Laws in every state protect victims of domestic abuse both in and
outside of the marriage.
2. The victim is entitled to a protective order against the other spouse
which can be granted ex parte (without notice) and can last for one
month to several years depending on the jurisdiction.
 Note: Ex parte protective orders last for a short period of time
(temporary). Notice is then given to the alleged abusive spouse who
can then refute the allegations and the temporary order becomes
permanent if the facts are present.

D. TORTIOUS INTERFERENCE WITH MARRIAGE (CLAIMS AGAINST

3P)
1. Alienation of Affection
 Requirements:
o Genuine love and affection between spouses who are
validly married.
o Love and affection was alienated and destroyed (i.e.,
marriage fell apart).
o D’s acts caused the loss of love and affection (i.e., 3P is the
reason the marriage fell apart)
 Defense - the marriage was already falling apart before 3P presence
 o Not defenses - ignorance of the marriage, consent of the
nonplaintiff spouse, condonation by P after the fact
 Adultery is NOT a requirement
o Note: in-laws can be the 3P (D)
 Proof of damage is required (but not limited to economic loss) and
is highly subjective. Punitive damages may be awarded when
appropriate.
2. Criminal Conversation
 Requirements:
o Marriage of the spouses
o Adultery (sexual intercourse) between D and the spouse
during the marriage
o Damages are the same as the alienation claim
 If P has a claim for criminal conversation, then P will also have a
claim for alienation of affection.

IV. ANNULMENT
A. ANNULMENT IS A DECLARATION THAT A MARRIAGE IS
INVALID (i.e., that due to an impediment at the time of the marriage, no
marriage ever occurred)
1. Available for defective marriages that are LEGALLY VOID OR
VOIDABLE
2. Jurisdiction – domiciliary state of either party has jurisdiction to hear the
annulment action
B. VOID MARRIAGE
1. Fail to meet essential requirements, so invalid (“utter nullity”)
 Parties may walk away from void marriages without court order; the
reason for bringing an annulment action is usually to have the court
determine property distribution and child custody.
2. Can be attacked by one of the parties or collaterally (in actions other
than for annulment) by a third party (e.g., IRS or insurance companies)
even after the death of one of the parties.
3. May or may not be remedied by continued habitation after removal of
impediment
 Uniform Marriage and Divorce Act and some states permit the
marriage to be valid after removal of the impediment. Ex. after the
death of a prior spouse, void marriage can be validated.
4. Reasons for void marriage
 Bigamy
 Consanguinity/affinity
C. VOIDABLE MARRIAGE
1. Event or condition affecting adequacy of consent to marriage contract
2. Treated as valid until annulled
3. Can be attacked only by or on behalf of a party to the marriage and in
some cases only by the party who is sought to be protected
 Cannot be attacked collaterally or by third parties

4. Marriage can be ratified by continued cohabitation after removal of

impediment
5. Reasons for voidable marriage
 Nonage (under 18) without required parental or judicial consent
 Incurable physical impotence (i.e., the inability to have normal
sexual relations with a spouse)
o The inability to have children is not impotence
o The annulment will be denied if P new or should have
known of the impotence before marriage OR continues to
cohabit after learning of the impotence
 Lack of capacity (e.g., duress, mental incapacity, under the
influence)
 Fraud that affects some essential part of the marriage
o Examples
 W impregnated by another man BUT NOT WHERE
W merely misrepresented that she was pregnant
 Ability/willingness to engage in sexual relations or
bear children
 Misrepresented religion or intent to participate in
religious ceremony
 Existence of venereal disease or addiction BUT NOT
WHERE party concealed a prior mental illness
 Party never intended to fulfill any duties of marriage
(e.g., married for ulterior motives, such as to avoid
deportation)

D. HYPOTHETICAL - Jason and Meg married after a whirlwind courtship

while both were taking the bar review course. At the wedding, Meg was so
drunk, she could barely stand up. Two weeks later, Meg learns that Jason is
still married and left his wife back in State A. Can the marriage be annulled
and if so, by whom and on what basis?
 1. Answer: Megan can seek an annulment because the marriage is void
since Jason is still married. Meg can also seek an annulment because the
marriage is voidable since she lacked capacity at the time of marriage
(i.e., too drunk).
Note: Presumption of validity of last marriage – states generally presume
that the most recent marriage is valid, and a party must overcome the
presumption by strong evidence that the prior marriage subsists (by
death or divorce).
E. EFFECT OF ANNULMENT
1. The marriage is set aside as if it never existed
2. Children remain legitimate (i.e., marital children)
3. Child support can be awarded – child support and custody handled the
same as in a divorce action
4. Spousal support may be awarded, but not in all states
5. Property generally treated as if never married; put spouses in “pre-
marital” state.

V. DIVORCE AND SEPARATION

A. JURISDICTION
1. One of the spouses must be domiciled in the state seeking to enter the
divorce. No personal jurisdiction required.
 Generally, if the spouse is a resident of the state for a minimum
period of time (90 days to 6 months), then there is a presumption
he is domiciled in that state and the court will have jurisdiction.

2. Compare jurisdiction for the court to determine financial issues (like

property rights, alimony, child support, and attorneys’ fees). The court
must have personal jurisdiction over both parties before the decree
rendered over these issues are entitled to full faith and credit. Ex. in an
ex parte divorce (i.e., only P is before the court), the court grant the
divorce, but cannot award spousal support or divide property located out
of state.
Note: it is possible for more than one state to have jurisdiction over the
divorce. Cases can proceed in both states and once one state renders
judgment, the other will lose subject matter jurisdiction (since there’s no
longer a marriage over which to adjudicate a divorce therefore leaving
the claim moot)
B. GROUNDS FOR DIVORCE (“Absolute Divorce”)
1. No-Fault Divorce
 Grounds - Allows for dissolution of marriage without regard to
marital fault (as pled in the case) – this means that as a matter of
fact there could have been fault (e.g., adultery) but the parties
chose to plead as if there was no fault.
o Generally, can be allowed on proof of either:
 Irreconcilable differences (i.e., marriage is
irretrievably broken)
 This type of divorce may require agreement
of the spouses to get divorced
 Living separate and apart for a specified time period
 If the spouses agree, it is generally for a
shorter period
 If it is unilateral no-fault (i.e., one party
moves out and wants a divorce regardless
of the other’s wants in the matter), the time
can be longer
 Incompatibility

Note: although commonly stated as separate grounds,

in states that recognize more than one of these
grounds, the last two (living separate and apart &
incompatibility) may be subsumed by the first
(irreconcilable differences) and merely considered
evidence that the marriage is irretrievably broken

o Defenses – traditional defenses are generally unavailable,

but one spouse can claim reconciliation to restart the time
clock for living separate and apart.
 The fact that one spouse thinks the marriage should
be saved and does not agree that it has broken
down is generally insufficient to prevent a divorce
judgment if the other spouse believes the marriage
cannot be saved and is not interested in continuing
the marriage.
2. Fault-Based Divorce
 Grounds
o Adultery
 Often proven by circumstantial evidence of:
 opportunity (e.g., working late but not at
office; out to dinner when said to be
elsewhere; photographed with someone
else that he should not be at that time); and
  inclination (e.g., testimony of others,
documentary evidence like text messages)
 Corroboration of adultery is often required
o Desertion (AKA Abandonment) – unjustifiable departure
from the marital home for a specified period with no intent
to return
 Note: abuse is a justifiable reason for departure
o Extreme Cruelty (physical or mental)
o Habitual drunkenness or abuse of drugs commencing after
marriage
o Insanity (may require that the spouse was institutionalized)
 Defenses
o Rarely used but still exist
 Collusion: the parties agreed to simulate the
grounds for divorce. Ex. both parties agree to
pretend they both committed adultery in order to
get a quick divorce.
 Connivance: P willingly consented to the other
spouse’s misconduct. Ex. swingers – H cannot later
divorce W based on adultery
 Condonation: P forgave the marital offense with full
knowledge of the offense (generally requires sex
after forgiveness).
 Recrimination: P is also guilty of marital fault
(doctrine of unclean hands).
C. LEGAL SEPARATION (“Divorce from bed and board”)
1. Often permitted for the same grounds as divorce
2. Effect of legal separation:
 Parties are still married (and therefore cannot remarry)
 Parties can seek to have their rights regarding property, spousal
support, child custody, and child support decided
3. Court may permanently divide marital property when legal separation is
granted. If so, after acquired property is separate. If no final property
division at that time, property will be divided when (and if) divorce is
granted.
4. Why do it? Religious reasons, elderly, or keep status for insurance, tax,
inheritance, and pension benefits.
VI. PROPERTY DIVISION
A. GENERAL PRINCIPLES
1. There are 3 main approaches to divide property at divorce:
 Community Property – all property acquired during marriage is
owned one-half by each spouse and property owned before
marriage or acquired by gift/bequest is separate
 Equitable division of all (marital & separate) property owned by
either spouse
 Equitable division of marital property. Each spouse takes his
separate property and the property acquired during marriage is
divided equitably.
o Most popular approach
2. In any case, property distribution decrees are nonmodifiable (i.e., final)
but can be reopened on grounds of fraud
 Compare to support awards, which are subject to modification.
3. Typically, there is a 2-step process in property division:
 CLASSIFICATION: determine what is marital property and what is
separate property
 DIVISION: make an equitable division of the marital estate no
matter how the property is titled.

Note: equitable division does NOT necessarily mean equal.

B. SEPARATE PROPERTY
1. Includes:
 All real and personal property owned by a spouse before marriage,
including assets held in individual retirement accounts;
 Property acquired in exchange for property acquired before
marriage;
 Property acquired by a spouse at any time by gift, bequest, devise,
or descent;
 Income from and appreciation of separate property (but see special
issues in property division below);
 Pain and suffering awards, victims of crime compensation awards,
future medical expenses, and future lost wages; AND
 Property acquired by a spouse after an order of legal separation
where the court has made a final disposition of property

C. MARITAL PROPERTY
1. Includes:
 All property acquired by either or both spouses during marriage up
to the final divorce decree (some jurisdictions use the date of
 permanent separation or the date of filing for divorce) regardless of
how title is held;
 Value of vested and unvested:
o Pension;
o Stock option rights;
o Retirement; OR
o Other fringe benefit rights relating to employment
that accrued during the period of the marriage; AND
 Recovery in personal injury, workers’ compensation, social security
disability actions, and other similar actions for lost wages during
the marriage, reimbursement for medical bills incurred and paid
with marital property, and property damage to marital property.

D. SPECIAL ISSUES IN CLASSIFICATION OF PROPERTY

1. Commingling – separate property can become marital property if the
property is inextricably intertwined with marital property or with the
separate property of the other spouse
 Courts will attempt to trace property – no commingling if separate
property is traced into the new product

2. Transmutation of separate property – separate property can become

marital property based on the intent of the parties that the property be
marital property (e.g., placing separate property in the names of both
spouses)
 Ex. H uses $10,000 of his separate property as a down payment on a
home for him and W titled in both of their names. There can be a
presumption of gift based on joint title and the $10,000 would be
classified as marital property.

3. Improvement of separate property – when separate property is improved

by using marital funds OR the efforts of either spouse, most courts will
grant the marital estate or non-owning spouse reimbursement for the
values added (but the property itself remains as separate property)
 Ex. H inherits a piece of property worth $1,000 during the marriage.
If H’s labor improved the property and the improvements caused an
increase in value OR if marital funds were used to improve the
estate (even if W did not participate), the increase due to H’s effort
would be marital.
o BUT, if neither spouse ever visited the property and the
property had increased in value because an interstate exist
was planned nearby, the increase in value would remain
separate because the increase was due to market factors,
not the contribution of either spouse.
 4. Property acquired before marriage but paid for after marriage
 Ex. H acquires a house before marriage and puts a down payment. A
few months later, H marries W and during marriage pays for the
mortgage.
 Courts are split
 Majority view – property should be apportioned between separate
and marital estates in proportion to the contribution of separate
and marital fuds to pay for the property. Ex. $10,000 down
payment. Equity in the house grows to $90,000 during marriage.
$10,000 is separate property; $90,000 is marital property.
o Minority view – inception of title with reimbursement
remedy

5. Pensions
 Are considered to be marital property subject to division even if the
non-working spouse did not contribute
 Courts use different formulas to calculate the share of the pension
that was earned by the party during the marriage and the amount
will be subject to division.
 Ex. H and W both work throughout the marriage for the same
company, which puts 4% of each employee’s income into a 401K
plan that was started the year after they married. H makes much
more money than W. H has $40,000 in his, and W has $8,000 in
hers. How will the court divide each interest, if at all?
o Answer: Total assets = $48,000; H and W each get $24,000.

6. Professional license or degree

 Are NOT considered to be marital property subject to division
 To avoid unfairness, some jurisdictions consider it when awarding
alimony
 A minority of jurisdictions value the degree then award more
property or alimony to the other spouse based on the valuation

7. Tax consequences – property division is NOT a taxable event; therefore,

the recipient does NOT owe any taxes upon division and the property
will have whatever tax basis it had when held by the couple.
E. EQUITABLE DIVISION
1. Once the court identifies and values the marital property, the court will
make an equitable division – not necessarily equal. Remember, the
court’s division of the property is NOT subject to modification once the
divorce is final.
2. Factors to consider in making equitable divisions of marital property:
 Age, education, background, and earning capabilities of both
parties;
  Duration of the marriage, and if there were any prior marriages;
 Standard of living during the marriage;
 Present income of both parties, and their vocational skills and
employability;
 Source of money used to purchase the property;
 Health of the parties
 Assets, debts, and liabilities of the parties;
 Needs of each of the parties;
 Provisions for the custody of minor children;
 Whether the distribution is in lieu of or in addition to alimony;
 Each party’s opportunity to acquire future income and assets;
 Each party’s contribution to the acquisition of or enhancement of
the existing marital assets;
 Each party’s contribution as a homemaker to the family unit;
 Whether each party has dissipated marital property (i.e., diminished
the value of marital assets by wrongful conduct; AKA economic fault
– e.g., gambling losses, paying for mistress); AND
o Economic fault can be considered in property division
 Marital fault (generally not a consideration but it can be)
o Majority view – marital fault can affect alimony but not
property division
3. Court can divide the property in kind or by contribution

VII. ALIMONY
A. GENERAL PRINCIPLES
1. Paid to the economically dependent spouse
2. There are 4 types of alimony (AKA spousal support or maintenance).
Courts can award more than one type of alimony.
3. There is a trend to award less money than in the past because of the 2
earning households and less economic dependence.
4. Trial court is vested with great discretion in awarding support.
B. TYPES OF ALIMONY (SPOUSAL SUPPORT OR MAINTENANCE)
TYPES PERMANENT PERIODIC LUMP SUM REHABILITATIVE REIMBURSEMENT
EXAMPLE Periodic alimony of Sum of $36,000 Rehabilitative Sum of $20,000 as
$2,000/month to W paid at a rate of alimony to W of repayment for the
until her death or $1,000/month $1,000/month supporting
remarriage for 36 months. for 36 months spouse’s
to gain contribution to the
education or increased
skills education of the
other spouse
DURATION Indefinite For a specified For a specified For a specified
time period; can time period, period of time; can
 be payable in unless modified be payable in
installments or in by court installments or in a
a lump sum. lump sum.
MODIFICATIO Can be increased, NONE – treated Can be NONE – treated as
N decreased, or like a contract increased, a contract right and
terminated upon proof right; binding on decreased, or can be awarded
of substantial change payor’s estate. terminated even if the
of circumstances upon proof of supporting spouse
substantial is not otherwise
change of eligible for spousal
circumstances support
TERMINATION Terminates upon: NONE - survive
 Remarriage of the death and are
recipient; not modifiable
 Death of either
spouse; OR
 Cohabitation with
another person
(only in some
jurisdictions)
KEY Amount is set out in Total amount of Amount is set
INDICATORS periodic payments but support will be out in periodic
no grand total is specified (e.g., payments but
explicitly stated (e.g., “$30,000” or no grand total is
$500/month for 60 “$30,000 payable explicitly stated
months) in $500 monthly (e.g.,
installments”) $500/month for
60 months)
NOTE Can get in  Can get in
addition to addition to
permanent permanent
periodic or lump periodic or
sum support lump sum
support.
 Amount
awarded is
supporting
spouse’s
contribution,
NOT the value
of the
degree/license
C. FACTORS TO BE CONSIDERED WHEN AWARDING ALIMONY
1. Standard of living established during the marriage – higher standard of
living may mean higher alimony, if the party has the financial means;
2. Duration of the marriage – economic dependence less likely in shorter
marriages;
3. Age and physical and emotional conditions of both parties;
4. Financial resources of each party. Consider marital property, separate
property, and whether the party will receive child support;
5. Contribution of each party to the marriage (e.g., services rendered in
homemaking, childcare, education, and career building of the other
party);
6. Time needed to obtain education or training to enable either party to find
appropriate employment where applicable;
7. Payor spouse’s ability to meet his needs and pay support; AND
8. Marital fault (only in some jurisdictions)
D. OVERALL, THE TWO PRIMARY CONSIDERTIONS WHEN
AWARDING ALIMONY ARE NEEDS OF THE CLAIMANT SPOUSE
(FOR THE FUNDS) AND ABILITY OF THE OTHER SPOUSE TO
PAY
1. Ex. After 22 years of marriage, parties divorce due to H’s adultery. He
earns over $60,000/year. W has been a homemaker, but recently got her
bachelor’s degree and began a job as a teaching assistant making
$22,000/year. She wants to get her master’s degree so she can make
more money. What should the court consider in awarding support? What
type, what amount, what duration?
 Answer: Rehabilitative support – if W can get her master’s then she
can increase her earning potential to above $22,000/year;
Permanent periodic or lump sum support – H and W have been
married for 22 years, W contributes as a homemaker, and potential
marital fault due to H’s adultery.
 E. MODIFICATION OF SPOUSAL SUPPORT
1. Spousal support is modifiable based on substantial and material change
of circumstance affecting the needs of the recipient spouse or the ability
of the other spouse to pay.
2. Generally, a voluntary reduction in income will be insufficient to reduce
the obligation (e.g., leaving job or incarceration). It varies, but some
courts will consider new legal obligations to another spouse or children
in modifying spousal support.
F. TAX CONSEQUENCES OF SPOUSAL SUPPORT
1. Post 2019 – spousal support payments are NOT income to the recipient
nor deductible by the payor.
2. Pre 2019 – for divorce decrees entered and separation agreements
executed before 2019, spousal support payments are deductible by the
payor and are income to the recipient unless the instrument is modified
to comport with the new rule.

VIII. MARITAL CONTRACTS

A. ANTENUPTIAL (PREMARITAL) AGREEMENTS – see Part I.c on page
1
B. SEPARATION AGREEMENTS
1. Entered into after marriage and is enforceable if supported by
consideration
2. Like premarital agreements, there must be full and fair disclosure and
the agreement must be entered into voluntarily
3. Parties can resolve economic issues (e.g., alimony, property division,
child support) and custody rights. Parties can agree on custody and child
support, but court is not bound by the parties’ contract concerning
children (i.e., court will do what’s in the child’s best interest).
4. Modifications
 Merged into the Divorce Decree – if the divorce decree includes the
terms of the agreement or expressly merge them, the provisions
become part of the court order. It is modifiable by the court and
subject to contempt.
 Non Merger – if the parties do not submit the agreement to the
court, the contract is nonmodifiable and is enforceable only by
contract remedies.

NOTE: Child support and custody can always be modified if in the

best interest of the child.
IX. RIGHTS OF UNMARRIED PERSONS
A. CONTRACTS BETWEEN COHABITANTS
1. Contracts are valid unless sex is the only consideration (giving up a
career or taking care of the home is sufficient)
2. Express contracts regarding earnings and property rights will generally
be enforced
3. Implied contracts (e.g., partnership or constructive trust) may be used to
award property.

X. CHILD SUPPORT
A. GENERALLY
1. Both parents equally share the duty to support their children based on
the child’s need and the ability of the parent to pay. An agreement by
parents that does not meet the needs of the child will not be enforced by
a court.
2. Courts have less discretion because of the proliferation of child support
guidelines
3. Majority of jurisdictions follow the income shares approach which
considers the number of children and the income of the parents to
determine a base line of child support
 Ex. If Mom earns $2,000/month and Dad earns $3,000/month, their
adjusted gross income is $5,000/month. Per the chart, the basic
child support obligation for two children is $1,122/month. Mom is
responsible for 40% of this amount, of $448.80, because her
$2,000/month income is 40% of the total income of $5,000. Dad is
responsible for 60% or $673.20. If Mom is the custodial parent, Dad
will pay Mom his share.

4. Courts are given discretion to add amounts for health insurance and
other extraordinary educational expenses. Courts can deviate from the
guidelines if it is in the best interest of the child.
5. Child support is paid independent of visitation
 Noncustodial parent must pay child support even if he has no
visitation rights
 Custodial parent cannot deny visitation rights to a noncustodial
parent who fails to make child support payments

B. DURATION OF CHILD SUPPORT

1. Child support continues until
 Age of majority;
 Death of child;
 Emancipation of child; OR
  Termination of parental rights.
2. Some states allow child support to continue past 18 if child is still in
high school until some age or completion of education.
 Most states will NOT extend child support to pay for college unless
agreed on by the parties or provided by statute.
3. Support may continue indefinitely if the child is disabled.
C. JURISDICTION OVER CHILD SUPPORT ORDERS
1. The Uniform Interstate Family Support Act (UIFSA) has been adopted
by all 50 states and D.C. to simplify the collection of child support when
the parties move out of state.
2. Original Jurisdiction
 Jurisdiction is proper where the first petition under UIFSA is filed
 Another state can only exercise jurisdiction if:
o The second petition is filed before the time to answer the
first has expired;
o The petitioner objected to the jurisdiction in the first action;
AND
o The second state is the child’s home state
3. Jurisdiction to Enforce
 The issuing court has continuing jurisdiction to enforce
 Another state can enforce by:
o Direct Enforcement: oblige (person receiving child support)
mails the order to the obligor’s employer in another state
and the employer will withhold wages
o Registration: child support order is registered in another
state and is then subject to enforcement in that state
4. Jurisdiction to Modify
 Once the court enters a valid child support order it maintains
continuing exclusive jurisdiction during the life of the order unless
o no parties reside in the issuing state; OR
o the parties consent to another state’s jurisdiction.

D. MODIFICATION OF CHILD SUPPORT ORDERS

1. Child support is modifiable based on a substantial change of
circumstance affecting
 the needs of the child; OR
 the ability of the parents to pay.
 2. Like spousal support, a voluntary reduction in income will not be a
ground for modification. Additionally, past due child support cannot be
modified and is not a basis for prospective modification.
E. TAX CONSEQUENCES OF CHILD SUPPORT ORDERS
1. Child support payments are NOT income to the recipient nor deductible
by the payor.
F. ENFORCEMENT OF CHILD SUPPORT AWARDS (AKA
COLLECTIONS)
1. Child support can be enforced through traditional civil and criminal
contempt proceedings.
 Civil contempt: obligor is incarcerated, but will “hold the keys to the
jailhouse” in that he can gain his release by paying the amount
specified
 Criminal contempt: specific sentence imposed upon a defaulting
obligor to punish him for willful failure to pay

2. As a result of federal legislation, parties may seize property, use wage

withholding, intercept tax refunds, and revoke licenses to enforce child
support payments.

XI. CHILD CUSTODY

A. INTERSTATE CUSTODY AND JURISDICTION – The Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate
custody disputes.
1. Initial award of custody
 Primary test – Home State which is either the State
o Where child has lived with parent (or a person acting as
parent) for at least 6 consecutive months; OR
o That was the child’s home state within the last 6 months
and the child is absent from the state, but a parent (or
person acting as parent) continues to live in the state. Ex. H
and W married in OR and had one Child. Upon separation,
W takes Child to CA to live with her parents. For the first 6
months of her absence OR is the Home State.
 If there is no Home State, a court can assume jurisdiction if the child
has a significant connection with the state and there is substantial
evidence of the child’s well-being in the state.
 If state with Home State or significant connection jurisdiction
declines, a state can assume deferred jurisdiction.
 If not other state exercises jurisdiction, any state can by default

2. Modification of an existing decree

 The issuing state exercises continuing exclusive jurisdiction UNLESS
 o No child or parent continues to reside in that state; OR
o The child no longer has a significant connection with the
state and there is no substantial evidence in the state.
Note: only the issuing state can determine that there’s no
significant connection.
 Ex. H and W married in OR and had one Child. OR court entered
order giving custody to W. One year later, H moved to IL. Child went
to visit for the holidays and H filed suit in IL seeking custody of child.
W objects and asks for child to be returned. W hires an attorney in
IL who moves to dismiss the suit. Who wins?
o Answer: W wins. OR has continuing exclusive jurisdiction
over the custody award until either no on lives in OR or
there’s no longer a connection to OR (as determined by the
OR court).

3. Declining jurisdiction
 A court may not exercise jurisdiction if:
o A proper proceeding was already pending elsewhere when
petition is filed, unless the other court defers; OR
o The person seeking to invoke the court’s jurisdiction has
engaged in unjustifiable conduct (i.e., wrongfully taking the
child from another state)
 A court may decline to exercise jurisdiction if it determines it is an
inconvenient forum
4. Temporary emergency jurisdiction
 Requirements:
o Child is physically present AND
 The child has been abandoned; OR
 It is necessary to protect child because child, sibling,
or parent is subject to abuse.
B. CHILD CUSTODY GENERALLY
1. Child custody: an umbrella term that includes legal and physical custody
2. In any custody or visitation case, the hallmark consideration is the best
interest of the child
 Legal custody: includes the rights to make decisions regarding the
child (e.g., religion, medical care, education)
 Physical custody: includes the actual possession and control of the
child

3. Factors that courts consider vary among jurisdictions but generally

include:
 The parents’ wishes (constitutionally protected)
 o Courts generally will not interfere in parental decision
making (e.g., child’s care, custody and control) absent
allegations of abuse or neglect
 The child’s preference
o Children under the age of 8 are generally not considered
but over the age of 12 are given great weight
o Questioning generally occurs in chambers
 The child’s relationship with the parents and siblings and others
involved with parents
 The child’s adjustment to home, school, and community
 The mental and physical health of the parties
 Parent who was the primary caregiver (but no gender or financial
ability preference)
4. Trial court is vested with a great deal of discretion to determine custody
and visitation
C. TYPES OF CUSTODY AND VISITATION AWARDS
1. Joint Custody: can mean joint legal, joint physical, or both.
 Purpose – intended to promote the involvement of both parents in
the child’s life.
 In most jurisdictions, it is encouraged and will be awarded if the
parents agree.
 Courts consider a myriad of factors (mentioned above), and also
consider geographic proximity, ability to communicate, and whether
the parents agree.
2. Sole Custody: can be awarded to one parent when strong evidence
demonstrates that it is in the best interest of the child. The other parent
will be entitled to reasonable visitation unless harm to the child will
result.
3. Custody to a Nonparent
 Because of the constitutional protections afforded a parent, in a
custody dispute between a parent and a nonparent the standard is
NOT simply the best interest of the child.
 The parent is entitled to custody unless the nonparent can show
o Harm to the child; OR
o Unfitness (e.g., abandonment, neglect, abuse, surrendered
custody)
4. Visitation
 Parental visitation – absolute denial of visitation to a parent is rare.
Courts may deny and will restrict visitation (e.g., supervised
visitation) if injury to the child may result.
 Nonparent visitation – every state has a statute that allows 3Ps,
generally grandparents, to seek visitation
 o Generally, applies in some extraordinary circumstances such
as divorce, separation, or death.
o SCOTUS in Troxel v. Granville found that if a parent is fit, his
or her wishes on nonparent visitation are constitutionally
protected and must be given “special weight”
 Parent’s due process rights in the custody, care and
control of her child take precedence over the best
interest of the child standard
D. MODIFICATION OF CUSTODY
1. Generally brought by motion of a party or the court in the original
action. The party seeking the modification bears the burden of proof.
2. Standard – whether custody or visitation issue, modification requires
substantial and material change of circumstance affecting the child’s
well-being since prior determination of custody.
3. Overriding concern – best interest of the child
4. Hypothetical – Art entered into agreed order several years ago giving
custody of his minor daughter, Joy, to her maternal grandmother. Joy’s
mother is deceased. Art has not married, has a more stable home life and
a household better able to care for the child, and he now has a closer
relationship to Joy than he previously had. He has filed suit seeking to
regain custody, alleging the foregoing facts as a substantial and material
change in circumstances and further claiming that, as Joy’s biology
parent, he enjoys a presumption of superior parental rights against any
non-parent. Joy is a happy, well-adjusted child who is flourishing in her
grandmother’s custody. Who wins?
 Answer: Grandmother wins. The burden will be on Art to show a
substantial and material change of circumstance.
E. RELOCATION
1. Many states have statutes to address the relocation of the primary
residence of the child. Statutes generally require notice to the other
parent and a court hearing to determine whether relocation is permitted.
2. To determine relocation, courts will consider whether relocation:
 Is in the child’s best interest
 Motivated by a benefit to the family; AND
 Not intended to thwart the relationship with the other parent.

F. ENFORCEMENT OF CUSTODY AWARDS

1. Violations of custody and visitation can be enforced through civil
contempt proceedings
2. State habeas corpus proceeding is used by a person claiming custody of
a child who is physically in the possession of another
 this remedy is limited to physical custody of the child; can’t be used
to enforce visitation rights
 3. Suit in equity: an action where the court is asked to enjoin conduct
violating the custody order - will be enforced if a certified copy is filed
with the clerk of the court. Will not remove continuing exclusive
jurisdiction of another state but will allow enforcement of the order in
the state.
4. Child kidnapping
 If the child is removed from the state, the custodial parent must file
the custody order in the new jurisdiction and seek enforcement OR
obtain a writ of habeas corpus from the new jurisdiction.
 Child kidnapping is a state crime, generally a felony
 Federal Parental Kidnapping Prevention Act (PKPA): mandates that
states give full faith and credit to another state’s child custody
determination, if jurisdiction is proper (because custody orders are
not final)
o Jurisdiction and modification requirements under PKPA are
very similar to UCCJEA (but emergency jurisdiction is not
temporary)
 International kidnapping – the International Parental Kidnapping
Prevention Act (IPKCA) and the Hague Convention on Child
Abduction provide international relief when a child is wrongfully
removed to a foreign country.

XII. NON MARITAL CHILDREN

A. GENERALLY
1. Over the years, children born out of wedlock have received more
constitutional protections. Intermediate scrutiny applies in an equal
protection analysis (substantial relationship to an important
governmental interest).
2. A parentage action can be brought to establish a biological relationship
and settle issues of paternity. Once parentage is established, the parent
owes support and has rights of custody and visitation.
B. PRESUMPTION OF PARENTAGE
1. The husband of the mother is presumed to be the father if the child is
born:
 During the marriage;
 Within 300 days of termination of the marriage; OR
 During a void or voidable marriage.

Note: the presumption can be rebutted but requires heightened

proof (generally clear and convincing). In some cases, however,
even if the husband can prove he is not the biological father of the
child, many states prohibit disestablishment of paternity based on
 the best interest of the child (policy – due to the amount of time
has passed, the child believes the man is the child’s father).

C. UNWED FATHERS
1. A child can be considered the child of an unwed father if:
 After the birth of the child, the father marries the mother;
 The father holds the child out as his biological child;
 The father consents to his name on the birth certificate;
 The father acknowledges paternity (usually requires formality)
 There is a judgment decreeing paternity (see paternity suits below)

2. Unwed fathers will be protected by the Due Process Clause and can have
rights to custody of their child if they demonstrate parental responsibility
(e.g., acknowledgement of paternity, supervision, education, protection,
care, and support).
3. Unwed fathers may be precluded from tort recovery for the death of a
child he did not legally recognize

D. PATERNITY SUIT
1. Generally used by unwed mother to obtain child support from the father.
Once paternity is established, the father can assert rights of custody and
visitation.
2. Statute of limitation is tolled during the minority of the child, so will last
at least until the child reaches 18.
3. Level of proof varies – can be C&C or preponderance
4. Blood or tissue sampling is the superior method of establishing
paternity, but testimonial and other medical evidence has been
sufficient.

XIII. TERMINATION OF PARENTAL RIGHTS AND ADOPTION

A. TERMINATION OF PARENTAL RIGHTS
1. Voluntary Termination – Parents may voluntarily relinquish all rights to
their children (often done in preparation for adoption)
2. Involuntary Termination – The state may not interfere in family
decision-making unless the decision endangers the well-being of the
child. The state may seek to terminate parental rights for:
 Infliction of serious physical harm on the child or other children in
the household;
 Abandonment;
 Neglect or deprivation;
 Failure to provide support for the child without cause for a specified
time period (usually 1 year);
  Mental health of the parent that results in inability to care for the
child; OR
 Parental unfitness (can be physical or psychological – e.g., drug
abuse or mental health issues.

Note: generally, parents cannot seek to terminate the rights of the

other parent.

B. ADOPTION
1. Types of adoption
 Agency Adoption – licensed adoption agencies act as intermediaries
 Private Adoption – private persons (e.g., attorneys) act as
intermediaries to arrange adoption

2. Requirements
 Termination of biological parents’ rights
o Consent of biological parents required unless:
 Rights were already terminated (see above)
 If unreasonably withheld against the best interest of
the child
o Consent of unmarried father
 Required if father is actively involved in the child’s
life
 May not be necessary if the parent has abandoned
the child, failed to support for a certain length of
time, or never attempted to establish a relationship.
 Creation of new parent rights
o Consent of adoptee – In some states, adoptees over a
certain age (12 or 14) must consent to adoption
o Home Study - Most states require an investigation of the
new home, but this can be waived for relative adoptions
o Payment of money prohibited except for medical costs of
pregnancy
 Adoption records – generally sealed unless biological parents
consent to contact
 Consequences of adoption – severs all rights and obligations of
biological parents to child and creates duties to adoptive parents
and child. In some states, the adoptive child still has the right to
inherit from biological parents.
XIV. ASSISTED REPRODUCTION
A. GENERALLY
1. Often used as an alternative to adoption
2. In some cases, it is necessary that a person other than the intended
parents is involved (surrogate or gamete provider)
3. The Uniform Parentage Act (UPA) now contains provisions related to
assisted conception, but has not been adopted by many jurisdictions
B. MATERNITY
1. Mother-child relationship is established by:
 Birth of the child (unless valid gestational agreement)
 Adjudication of woman’s maternity
 Adoption by the mother
 Adjudication confirming mother of child born to a gestational
surrogate

C. PATERNITY
1. A husband who is married to a woman who has a child through assisted
conception is the child’s father unless he proves his lack of consent
within two years after birth.
D. GAMETE DONORS
1. Egg or sperm donors are not parents of a child conceived through
assisted conception
2. Some jurisdictions have allowed the sperm donor to have rights if
agreed in writing by the donor and the woman
E. POSTHUMOUS CONCEPTION
1. If a gamete provider consented in writing that his or her gametes could
be used after death to conceive a child, that child can be considered the
child of a deceased parent.
F. GESTATIONAL AGREEMENTS
1. Some states have failed to enact legislation on surrogacy because they
characterize the agreement as the sale of a child
2. Gestational mother is also referred to as a surrogate
 Genetic surrogate: use of carrier’s own gametes
 Gestational surrogate: gametes are not her own

3. Gestational mother, her husband (if married) and intended parents must
enter into a written agreement
4. Court must approve the agreement if:
 Court has jurisdiction
 Child welfare agency has conducted a home study unless waived
 Agreement is found to be voluntary
  Provision has been made for health care costs until birth
(agreement cannot limit rights of surrogate to make decisions
regarding her health care or that of the fetus)
 If surrogate is promised consideration, it is reasonable

5. Subsequent marriage or divorce of intended parents does not invalidate

the agreement
6. The agreement can be terminated by any of the parties at any time
before embryo transfer
7. If the agreement is unenforceable, the gestational mother is considered
the mother of the child, regardless of biology.
8. If the agreement is approved, intended parents must file notice of birth
and court will issue an order of parentage.