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Preface
Acknowledgments
Table of Cases
Chapter 1 Marriage, Family and Privacy in Contemporary America
1
Problem 1-1
1. The American Family Today
Notes and Questions
2. Families and the Law: Public Law
A. The Purposes of Family Law
Linda C. McClain, The Functions of Family Law
Notes and Questions
B. Defining the Family
Moore v. City of East Cleveland
Notes and Questions
Problem 1-2
Problem 1-3
Problem 1-4
3. Families and the Law: The Right of Privacy
A. The Right to Contraception
Griswold v. Connecticut
Notes and Questions
Eisenstadt v. Baird
Notes and Questions
Problem 1-5
B. The Right to Liberty “in Matters Pertaining to Sex”
Lawrence v. Texas
Notes and Questions
4. The Status and Conditions of Family Law Practice
A. The Legal System’s Approach to Family Law Disputes
Jana Singer, Dispute Resolution and the Postdivorce Family: Implications of a Paradigm Shift
Notes and Questions
Problem 1-6
B. Family Law Practice
Chapter 2 Entering Marriage
65
1. Substantive Requirements for Entry into Marriage
A. Freedom to Marry the Person One Loves: Race
Loving v. Virginia
Notes and Questions
B. Can the Right to Marry Be Abridged?
Zablocki v. Redhail
Notes and Questions
C. The Freedom to Marry the Person One Loves: Gender
1. Challenges to the One Man-One Woman Definition of Marriage
2. The Obergefell Decision
2. Polygamy: The Next Frontier?
A. Introduction: Polygamy in Historical and Contemporary Context
B. Contemporary Constitutional Challenges to the Bar on Polygamy
State v. Holm
Notes and Questions
Problem 2-1
Problem 2-2
3. Incestuous Marriage
Smith v. State
Notes and Questions
Problem 2-3
4. Minimum Age at Marriage
Notes and Questions
Problem 2-4
Problem 2-5
5. Consent to Marriage
In re Estate of Santolino
Notes and Questions
Problem 2-6
6. Annulment
A. Grounds for Annulment
B. Effects of Annulment
Notes and Questions
7. Marriage Formalities
Uniform Marriage and Divorce Act
Notes and Questions
Problem 2-7
Problem 2-8
8. Common-Law Marriage
In re Estate of Hunsaker
Notes and Questions
Problem 2-9
9. The Putative Spouse Doctrine
Williams v. Williams
Notes and Questions
Chapter 3 Social and Economic Rights and Obligations
179
1. Changing Views on the Legal, Social, and Economic Status of Women
A. The Common Law
William Blackstone, Commentaries on the Laws of England
Notes and Questions
B. Family Names
Note and Questions
Problem 3-1
C. Women’s Contemporary Legal Status
Herma Hill Kay, From the Second Sex to the Joint Venture: An Overview of Women’s Rights and Family Law in the United States During the Twentieth Century
Notes and Questions
Sessions v. Morales-Santana
Notes and Questions
2. Work and Family: Domestic and Economic Roles
A. Introduction
U.S. Department of Labor, U.S. Bureau of Labor Statistics Highlights of Women’s Earnings in 2016
Notes and Questions
B. The Law
1. The Family and Medical Leave Act
2. The Pregnancy Discrimination Act (PDA) and Other Protections for New Mothers
3. Discrimination Based on Family Responsibilities
3. Interspousal Support Obligations
A. The General Support Obligation
1. The Traditional View of Support Obligations
2. The Necessaries Doctrine
B. Spousal Property Distribution upon Death
Notes and Questions
4. Medical Decisionmaking for One’s Spouse
A. The Right of Married Women to Control Their Pregnancies
Planned Parenthood of Southeastern Pennsylvania v. Casey
Notes and Questions
B. Casey’s Vitality
Notes and Questions
5. The Delegation of Medical Decisionmaking for Incompetent Adults
Problem 3-5
6. Confidential Relationship: Evidentiary Privileges
Notes and Questions
7. Federal Law and Family Finances
A. The Financial Instability of the American Family
Notes
B. Taxes and Family Forms
Anne L. Alstott, Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of Individualism
Notes and Questions
Chapter 4 Nonmarital Couples
253
1. Intent (Contract-Based Agreements)
A. Establishing or Rejecting Rights?
1. Opening the Door to Claims by Cohabitants
2. Rejecting Economic Claims Between Cohabitants
B. Types of Claims
Problem 4-2
Problem 4-3
2. Status-Based Property Rights
A. Case Law
Fleming v. Spencer
Notes and Questions
B. Model Legislation
American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations
Notes and Questions
Problem 4-4
3. Other Incidents of Nonmarital Cohabitation
Note and Questions
4. Domestic Partnerships, Civil Unions, and Other Legal Statuses
A. Domestic Partnerships
1. The History of Domestic Partnerships
2. Legal Incidents: What? Who? How? Why?
3. Why Does the Label Matter?
4. The Future of Domestic Partnerships
B. Civil Unions
1. The Development of Civil Unions
2. What Are Civil Unions? Who May Enter into Them?
3. The Future of Civil Unions
C. Reciprocal and Designated Beneficiaries
Designated Beneficiary Agreement
Notes and Questions
Problem 4-5
Problem 4-6
Chapter 5 Establishing Parenthood
305
1. Marital and Nonmarital Parents
A. The Constitutional Framework
1. The Marital Presumption
2. Parentage and Infants
B. Statutory Approaches to Recognizing Marital and Nonmarital Parents
1. The Uniform Parentage Act: Marital and Nonmarital Parents
2. State Efforts to Protect Parents: Voluntary Parentage Registration Systems
C. The Marital Presumption Today
Pavan v. Smith
Notes and Questions
Problem 5-4
2. Beyond Marriage
A. Assisted Reproductive Technology
1. Introduction
2. Donor Gametes
3. Surrogacy
B. De Facto Parenthood
C. Adoption
Joan Hollinger, Adoption in America Today
Notes and Questions
Problem 5-8
D. Three Parents
Cal. Family Code
Notes and Questions
Problem 5-9
Problem 5-10
E. Disestablishing Parenthood
1. Children Conceived Through Rape
2. “Tricked Paternity”
Chapter 6 Adoption
365
1. Historical Background and the Contemporary Landscape
A. Historical Background
Jamil S. Zainaldin, The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts, 1796–1851
B. The Contemporary Landscape
2. How May a Child Be Adopted?
A. Public Agencies, Private Agencies, and Private Placements
Barbara Fedders, Race and Market Values in Domestic Infant Adoption
Notes and Questions
A Note on the Interstate Compact on the Placement of Children
B. Consent and Notice
1. Consent
2. Notice
C. Eligibility to Adopt
B.L. v. J.S.
D. The Best Interests Standard
Low-Income Persons
Same-Sex Couples
Single Persons
Grandparents or Other Relatives
Foster Parents
Stepparents
The Petitioners’ Ages
Persons with Disabilities
Separate Adoptive Placements of Siblings
Note and Questions
Problem 6-1
Problem 6-2
A Note About “Equitable Adoption”
3. Issues in Contemporary Adoption Law and Policy
A. Transracial Adoption
1. Historical Background
2. The Ongoing Debate
B. Native American Adoption
C. Religious Identity
D. International Adoption
Notes
E. Baby Selling
State v. Brown
Notes and Questions
Kimberly D. Krawiec, Altruism and Intermediation in the Market for Babies
Note
4. The Aftermath of Adoption
A. Post-Adoption Disputes
Note and Questions
B. The Rise and Decline of Closed Adoption
1. Closed Adoption
2. Open Adoption
3. Adoptees’ Rights to “Learn Their Roots”
Chapter 7 Civil and Criminal Remedies for Family Injury
413
1. Domestic Violence
A. Introduction
1. Prevalence and Practice
2. Historical Background
B. Domestic Violence: A Contemporary National Profile
Notes and Questions
C. Civil Protection Orders
1. Seeking a Civil Protection Order
2. Issuing a Civil Protection Order
3. Assessing the Effectiveness of Civil Protection Orders
4. Enforcing Civil Protection Orders
D. The Criminal Justice Response
1. Arrest
2. Prosecution
E. Other Domestic Violence Issues
1. Gender Inequality
2. LGBT Inequality
3. Alternative Dispute Resolution
4. Restorative Justice
5. Marital Rape
6. The Violence Against Women Act
7. Impact on Children
8. Prevention
2. Tort Law
A. The Contemporary Retreat from Intra-Family Tort Immunities
1. Interspousal Tort Immunity
2. Parent-Child Tort Immunity
B. Intra-Family Torts
Richardson v. Richardson
Hakkila v. Hakkila
Notes and Questions
C. Tort Recovery Against Third Parties
1. Heart Balm Torts
2. Loss of Consortium
Chapter 8 Divorce
491
1. Introduction
2. Divorce in Historical Context
3. Contemporary Grounds for Divorce
4. Fault-Based Divorce
A. Fault Grounds
1. Physical Cruelty
2. Mental Cruelty
3. “Spousal Domestic Abuse” as Cruelty
4. Adultery
5. Desertion
B. Fault-Based Bars and Defenses
1. Recrimination
2. Provocation
3. Connivance
4. Condonation
5. Collusion
5. No-Fault Divorce
A. Exclusive No-Fault Regimes
Chapter 403 of the Kentucky Revised Statutes Dissolution of Marriage (2019)
B. Mixed Fault/No-Fault Regimes
C. Living Separate and Apart
Frey v. Frey
Notes and Questions
D. Irretrievable Breakdown
Richter v. Richter
Notes and Questions
Problem 8-3
6. Questioning No-Fault Divorce
A. Debates About Law, Culture, and the Divorce Rate
B. Debates About Legal Reform of No-Fault Divorce Law
William J. Doherty & Leah Ward Sears, Second Chances: A Proposal to Reduce Unnecessary Divorce
Notes and Questions
Problem 8-4
7. Legal Separation
Chapter 9 Division of Marital Property at Dissolution
561
1. Property Regimes During Marriage and at Divorce
A. Title Theory
B. Community Property
C. Property Regimes Governing Dissolution
1. A Sample Title Theory Regime
2. A Sample Community Property Regime
3. Hotchpot, or “Kitchen Sink,” Jurisdictions
4. Proposal for Reform: The ALI Principles
2. Characterization and Treatment of Separate Assets
A. Characterization of Assets
Nack v. Edwards Nack
Notes and Questions
B. Appreciation of Separate Property During the Marriage
Middendorf v. Middendorf
Notes and Questions
3. The Contributions of Homemakers
Questions
Problem 9-1
4. The New Property and Its Common Forms
A. Intellectual Property
B. Professional Licenses, Professional Degrees and Future Earning Capacity
C. Pension Plans and Retirement Accounts
D. Stock Options
E. Business Goodwill and Other Small Business Issues
F. Personal Injury: Disability Pensions and Tort Recoveries
Notes and Questions
Problem 9-2
5. Valuation, Distribution and Enforcement
Crider v. Crider
Notes and Questions
6. What Distribution Is Equitable?
A. An Equitable Distribution Statute
Note
B. Uneven Division of Assets
Ketterle v. Ketterle
Notes and Questions
Problem 9-3
Problem 9-4
Problem 9-5
7. Debts and Bankruptcy
A. Allocating Debts Accrued During Marriage
Sunkidd Venture, Inc. v. Snyder-Entel
Notes and Questions
B. The Impact of Post-Divorce Bankruptcy Filing
In re Phegley
Notes
8. Have We Achieved Equity?
Questions
Chapter 10 Alimony
651
1. Overview
A. The History of Alimony
1. Changing Views of Alimony
2. Alimony and Gender
B. The Uniform Marriage and Divorce Act
Uniform Marriage and Divorce Act
Notes and Questions
2. Justifications for Alimony
A. Rationales for Alimony Awards
Cynthia Starnes, The Marriage Buyout: The Troubled Trajectory of U.S. Alimony Law
Notes and Questions
B. The ALI Approach: Compensation for Loss
American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations
Notes and Questions
Problem 10-1
3. How Should Courts Award Alimony?
A. Defining Alimony Awards
Problem 10-2
Problem 10-3
B. Determining Alimony Awards
N.J. Stat. Ann. § 2
A:34–23 (2018)
Notes and Questions
1. Evaluating Factors
2. Income Equalization
3. Establishing Alimony Guidelines
4. Enforcement of Alimony Awards
A. Judicial Enforcement
B. Private Enforcement Methods
C. Enforcement for Military Personnel
D. Attachment of Wages
5. Modification and Termination of Alimony
A. Modification
Martindale v. Martindale
Notes and Questions
Problem 10-5
Problem 10-6
B. Termination
Mass. Gen. L. Ch. 208, § 49 (2018)
Notes and Questions
Problem 10-7
6. Tax Consequences of Alimony
Notes and Questions
Problem 10-8
Chapter 11 Child Support
693
1. The Contemporary Landscape and Future Challenges
A. The Contemporary Child Support Landscape: An Overview
B. The Challenges of Poverty: An Overview
Elaine Sorensen, Child Support Plays an Increasingly Important Role for Poor Custodial Families
Notes
2. The Nature of the Child Support Obligation
A. The Source of the Obligation
State ex rel. Hermesmann v. Seyer
Notes and Questions
B. The Support Obligations of Persons Other than Biological Parents
Problem 11-1
Problem 11-2
Problem 11-3
C. Post-Majority Support Obligations
1. Support During Post-Secondary Education
2. Support for Adult Children with Disabilities
3. The Federalization of Child Support
4. The Operation of State Child Support Guidelines
A. What Is “Income”?
1. The Guidelines Definition
2. Imputing Income to an Unemployed or Underemployed Parent
B. Deviating from the Guidelines Amount
Kentucky Revised Statutes
Notes and Questions
C. The Guidelines’ Outer Limits
1. Low-Income Obligors
2. High-Income Obligors
5. Modification of Child Support Orders
A. The “Change of Circumstances” Standard
Uniform Marriage and Divorce Act
Iowa Code
Notes
B. Applying the “Change of Circumstances” Standard
In re Marriage of Nelson
Notes and Questions
Problem 11-6
C. Imputing Income on Modification
In re Marriage of Pollard
Notes and Questions
Problem 11-7
Problem 11-8
6. Child Support Enforcement
A. Civil Enforcement
Monica Hof Wallace, Child Support Savings Accounts: An Innovative Approach to Child Support Enforcement
Notes and Questions
B. Criminal Enforcement
Problem 11-9
C. Challenges to Civil and Criminal Enforcement
Laurie S. Kohn, Engaging Men as Fathers: The Courts, the Law, and Father-Absence in Low-Income Families
Notes and Questions
Ann Cammett, Deadbeats, Deadbrokes, and Prisoners
Note
Problem 11-10
Chapter 12 Child Custody
773
1. Introduction
2. Constitutional Considerations
McDermott v. Dougherty
Notes and Questions
3. Evolution of Standards Governing Child Custody
A. The Tender Years Doctrine
B. The Best Interests of the Child
C. The Psychological Parent and the Role of Experts
Notes and Questions
Problem 12-1
D. Contemporary Interpretations of the Best Interests of the Child
1. Uniform Marriage and Divorce Act (1998)
2. Statutory Definitions of “Best Interests”
3. The ALI Principles
4. Factors in Determining Best Interests
A. Home Environment, Health Issues and Gender Roles
Blevins v. Bardwell
Notes and Questions
B. Allegations of Immorality
Kaptein v. Kaptein
Notes and Questions
C. Race
Palmore v. Sidoti
Notes and Questions
D. Siblings and Religion
Arthur v. Arthur
Notes and Questions
E. A Note on “Custody” of Animal Companions, Commonly Known as Pets
F. Domestic Violence
Schechter v. Schechter
Notes and Questions
G. The Child’s Preference
1. How Does the Child Speak?
2. Contemporary Debates About the Role of Attorneys for Children in Custody Disputes
5. Shared Parenting: Gender Wars or a Step Forward?
A. Feminists, Fathers’ Rights and Public Policy
B. Reevaluating Shared Physical Custody: Iowa
C. Promoting Co-Parenting
Chapter 13 Visitation and Post-Dissolution Custody Disputes
895
1. Disputes About Major Childrearing Decisions
A. Collapse of Joint Parenting
Nicita v. Kittredge
Notes and Questions
B. Tie-Breaking Arrangements
Notes and Questions
2. Visitation
A. The Fit Noncustodial Parent’s Right to Visitation
Problem 13-1
B. Denial of Visitation
Usack v. Usack
Notes and Questions
C. Third-Party Visitation
Troxel v. Granville
Notes and Questions
D. Visitation and Custody Rights of De Facto Parents
1. Who Qualifies as an Equitable or De Facto Parent
3. Modification of Custody or Visitation Orders
A. The Standard
B. Substantial Change of Circumstances
Kristen L. v. Benjamin W.
Notes and Questions
Problem 13-4
C. Relocation
Aragon v. Aragon
Notes and Questions
D. International Relocation
Notes and Questions
4. Parents Who Kidnap Their Own Children
A. How Widespread a Problem Is Kidnapping of Children by Their Parents?
B. Case Note: State of New Jersey v. Froland
Notes and Questions
C. Treatment of International Child Abduction Under the Hague Convention
Convention on the Civil Aspects of International Child Abduction, 1980
Cuellar v. Joyce
Notes and Questions
Problem 13-5
Chapter 14 Ethics in Contemporary Family Law Practice
989
1. Ethical Foundations
A. Introduction
B. Professional Roles and Obligations
Note
Problem 14-1
2. Access to Domestic Relations Counsel
Jessica K. Steinberg, In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services
Notes and Questions
3. Client Confidences
Problem 14-2
Problem 14-3
4. Conflicts of Interest
A. General Standards
B. Dual Representation
Problem 14-4
C. Duties to Current Clients
D. Duties to Former Clients
E. Duties to Prospective Clients
F. Sexual Relations Between Family Lawyer and Client
5. Obligations to Third Parties and Opponents
Barrett v. Virginia State Bar
Notes and Questions
Problem 14-5
6. Obligations to the Parties’ Children
A. Obligations When Representing a Parent
B. Obligations When Representing a Child
7. Domestic Misconduct by Lawyers
A. Lawyers’ Emotions as Domestic Relations Parties
B. Domestic Misconduct by Lawyers Unrelated to Client Representation
8. The Relationship Between Ethics and Malpractice
Chapter 15 Alternative Dispute Resolution
1015
1. Negotiation
Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce
Robert H. Mnookin, Divorce Bargaining: The Limits on Private Ordering
Problem 15-1
2. Mediation
A. The Nature of Domestic Relations Mediation
B. Ethical and Practical Considerations
1. Mediators’ Qualifications and Ethics
2. Lawyer-Mediators
3. Should Parties’ Lawyers Attend or Advise?
4. Unauthorized Practice of Law (UPL)
5. Mandated (“Court-Annexed”) Mediation
6. Should the Parties’ Minor Children Participate?
7. Confidentiality
C. Gender and Culture
1. Gender
2. Domestic Violence
3. Culture
3. Arbitration
A. The Nature of Domestic Relations Arbitration
1. Introduction
2. Procedure and Ethics
B. Domestic Relations Arbitration and Children
Fawzy v. Fawzy
Note and Questions
Problem 15-4
4. Collaborative Family Law
John Lande & Forrest S. Mosten, Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law
Rachel Rebouché, A Case Against Collaboration
Notes and Questions
A Concluding Note About a Lawyer’s Ethical Duty to Inform Clients About ADR
Problem 15-5
Chapter 16 Private Ordering in Marriage and Divorce : Premarital, Postnuptial, and Separation Agreements
1057
1. Marriage—Contract or Status?
2. Premarital Agreements
A. Model Laws and Proposed Reforms
1. The Uniform Premarital Agreement Act
2. Proposal for Reform: The Uniform Premarital and Marital Agreements Act of 2012
3. The ALI Principles
B. Elements Required for Valid Premarital Agreements
Mallen v. Mallen
Notes and Questions
In re Estate of Hollett
Questions
C. Specific Factors in Evaluating the Validity of Premarital Agreements
1. Voluntariness
2. Financial Disclosure
3. Review for “Substantive Fairness” or “Unconscionability”
D. Provisions of Premarital Agreements
1. Modification of Child-Related Support Obligations
2. Waivers of Spousal Support
3. Nonmonetary Terms
4. Enforcing Terms of Religious Marriage Contracts
3. Postnuptial Agreements
A. Why Enter into a Postnuptial Agreement?
B. What Legal Standards Should Govern a Postnuptial Agreement?
Bedrick v. Bedrick
Notes and Questions
Problem 16-4
Problem 16-5
C. Reconciliation Agreements as a Form of Postmarital Agreement
4. Separation Agreements
A. The Uniform Marriage and Divorce Act
Uniform Marriage and Divorce Act
B. Enforcement and Modification of Separation Agreements
C. Voiding a Separation Agreement
In re Marriage of Thornhill
Notes and Questions
Chapter 17 Locations of Family Law Litigation
1129
1. Introduction
Rhonda Wasserman, Parents, Partners, and Personal Jurisdiction
Note and Question
Problem 17-1
Problem 17-2
2. Divorce Jurisdiction
A. Ex Parte Divorce: Williams I and Williams II
Notes and Questions
B. Residency and Service Requirements
Sosna v. Iowa
Notes and Questions
Problem 17-3
C. Covenant Marriage
Notes and Questions
3. Appropriate Locations for Litigating Alimony and Property Distribution
A. Personal Jurisdiction Requirement for Alimony and Property Distribution
Gaboury v. Gaboury
Notes and Questions
A Note on Obtaining Personal Jurisdiction Through Long-Arm Statutes
Note and Questions
B. Limits on Out-of-State Property Distribution
Problem 17-4
4. Child Custody Jurisdiction
A. Which State Has Jurisdiction to Issue a Custody Order?
1. The Constitutional Context for Jurisdiction
2. State Courts and Subject Matter Jurisdiction
B. Enforcing and Modifying Another State’s Custody Decree
1. The Parental Kidnapping Prevention Act
2. The UCCJEA’s Modification and Enforcement Provisions
C. International Child Abduction
Notes and Questions
5. Support Jurisdiction
A. Which State Has Jurisdiction to Issue a Support Order?
1. Constitutional Limits
2. State Laws
B. Modifying and Enforcing a Child Support Order
1. FFCCSOA
2. UIFSA
6. Unified Family Courts
Notes and Questions
Postscript: Your Future in Family Law
1189
Problem
Index
1191
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Test footnote please ignore